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Global Crossing Bandwidth, Inc. v. Locus Telecommunication

December 16, 2008

RE: GLOBAL CROSSING BANDWIDTH, INC.
v.
LOCUS TELECOMMUNICATION, INC.,



The opinion of the court was delivered by: David G. Larimer United States District Judge

UNITED STATES COURTHOUSE 100 STATE STREET, ROOM 2500 ROCHESTER, NEW YORK 14614-1324

CHAMBERS OF DAVID G. LARIMER (585) 613-4040 DISTRICT JUDGE FAX (585) 613-4045

Dear Counsel:

The Court is currently engaged in preparing a decision on the pending summary judgment motions in this case. In certain respects, however, the issues concerning the disputed charges for outbound calls to the United Kingdom (a/k/a "44-07 calls") do not appear to have been adequately addressed by the parties, and I believe that some supplementation of the record is required. The specific items to be addressed are enumerated in boldface below.

Based on the record as it now stands, it is the Court's understanding*fn1 that "44" is the country code for the UK, and that the prefix "7" is always used to indicate that the number being called is assigned to a wireless phone. Thus, if someone outside the UK wanted to call a wireless phone in the UK, the caller would enter "447," followed by the rest of the recipient's number. If someone were to call that same phone from inside the UK, the caller would enter "07," instead of "447," plus the rest of the number.

The Court also understands that "4407" was not considered a valid code, but that some calls made by Locus customers using that code were nevertheless sent over Global's network to wireless phones in the UK. The reason, apparently, was that Global had configured its system to automatically convert "4407" calls into "447" calls. In other words, if the caller entered "4407," the call would be treated (and eventually billed) by Global as if the caller had entered "447," based on Global's belief that this would effectuate the caller's intent.

With that background in mind, your response should address the following questions:

(1) What was the earliest date on which Locus became aware, or should have become aware, that its customers' 4407 calls were terminating at wireless phones in the UK?

(2) When did Locus discover that Global was billing Locus for those calls at wireless rates?

(3) Prior to Locus's becoming aware of those facts, what had Locus's understanding been concerning the way in which Global would handle calls made using the code "4407"?

(3) When did Locus first dispute these charges, and on what subsequent occasions did Locus dispute these charges? Were any such charges paid by Locus without being disputed?

(4) Prior to this lawsuit, did Global ever reject or deny Locus's disputes over these or other charges on the ground that Locus had not followed the proper dispute procedures? Were any of Locus's disputes over these charges granted or accepted by Global?

(5) Did the parties' Carrier Service Agreement address these types of calls (as opposed to the procedure for disputes concerning those calls) in any way? There does not appear to be any explicit reference in the contract to "4407" calls, but what is your position concerning whether or to what extent the agreement bears upon the propriety of Global's handling of, and billing for, these calls?

In addition, the evidentiary record needs to be fleshed out. First, In a February 12, 2004 email to Jaimie Hubbard and Danielle Mostacciuolo at Global, Dillon Kim from Locus stated that "if you look at the hi-lited examples w/in the attached, you'll see that ... ." Kim then went on to argue that Global's ...


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