--- title: "Prepaid Card Provider Seeks Stay, Dismissal of AT&T Access Charge Suit" date: 2010-01-06T07:00:00-05:00 author: Import Bot canonical_url: "https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/prepaid-card-provider-seeks-stay-dismissal-of-att-access-charge-suit" section: Blog Posts --- # Prepaid Card Provider Seeks Stay, Dismissal of AT&T Access Charge Suit January 6, 2010 A few months ago, AT&T sued IDT Corp. for failing to pay access charges allegedly due on local-dialed prepaid calling cards. As we expected, IDT has [moved the court to stay, or in the alternative, dismiss](https://s3.amazonaws.com/cdn.kelleydrye.com/content/uploads/blogs/comm-law-monitor/2010/01/10_-2009-10-09-Defs-Brief-in-Supp-of-Motion-to-St.pdf), AT&T’s action. IDT contends that the FCC, not the court, should decide whether access charges apply to this type of call. In a strategic move, IDT seeks a stay of the case, rather than referral of AT&T’s complaint to the FCC for resolution. The case bears watching because AT&T appears to be using the IDT litigation as a test case before proceeding with actions it has threatened against other providers. If IDT is successful, AT&T likely will have to present its case directly to the FCC, perhaps by filing a petition for declaratory ruling, or maybe by bringing a formal complaint before the Enforcement Bureau. Alternatively, AT&T may switch approaches and seek to recover access charges from the CLECs to whom it hands off the calls. In the meantime, AT&T has continued to send monthly demands to prepaid card providers, allegedly calculating the amount of access charges due from the carrier. We are not aware of any other cases AT&T has filed against prepaid card providers. Yet. Follow the jump for a discussion of the pleadings on IDT’s motion. In its motion, IDT criticizes AT&T’s lawsuit as ​“a transparent attempt to use litigation to undermine ongoing regulatory proceedings pending before the FCC.” Citing to the Arizona Dialtone petition for reconsideration, which remains pending, IDT seeks a stay until the FCC resolves the issues ​“within the greater framework of its other carrier compensation-related decisions.” Notably, IDT seeks a stay, rather than referral of the complaint to the FCC. IDT thus joins AT&T in avoiding asking the FCC to resolve the claim. As an alternative, IDT claims that AT&T’s complaint should be dismissed for failure to plead a claim on which relief can be granted. In this portion of its motion, IDT attacks AT&T’s tariff-based theory of recovery. IDT notes that AT&T fails to cite any specific tariff provisions that it breached, and asserts that AT&T has not alleged that IDT subscribed to any AT&T access service. AT&T’s [opposition](https://s3.amazonaws.com/cdn.kelleydrye.com/content/uploads/blogs/comm-law-monitor/2010/01/16_-2009-11-19-Ps-Opposition-to-Motion-to-Stay.pd_.pdf) claims, as AT&T has asserted in disputes with other prepaid card providers, that the FCC has ​“conclusively decided” that access charges apply to prepaid cards, so there is no reason for a stay. AT&T reads the June 2006 Prepaid Calling Card order as establishing a comprehensive order mandating access charges for all types of prepaid calling card traffic. Regarding IDT’s motion to dismiss, AT&T both claims that the violation is in trying ​“to evade the AT&T LECs’ switched access tariffs altogether” and that IDT has ​“constructively ordered” service under its tariff. In the [reply](https://s3.amazonaws.com/cdn.kelleydrye.com/content/uploads/blogs/comm-law-monitor/2010/01/Ds-Reply-Brief-in-Support-of-Motion-to-Stay.pdf) brief, IDT does a good job responding to AT&T’s constructive ordering claim. Pointing out that IDT receives service from CLECs, not from AT&T, IDT claims it could not have constructively ordered service from AT&T. IDT relies on precedent from *Advamtel* involving CLEC access charges that AT&T (operating as an IXC) refused to pay. IDT asserts that the requirements for constructive ordering are not satisfied because IDT has not interconnected with AT&T and AT&T delivers service to a third party, not to IDT’s ​“premises” as required under the tariff. Briefing was completed on December 29. We will be watching for further developments. **Tags:** [Access Charges](https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/tags/access-charges), [Calling Card Industry](https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/tags/calling-card-industry), [litigation](https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/tags/litigation), [Prepaid cards](https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/tags/prepaid-cards) - Share this entry - - - - - [ View entry pdf ](https://s3.amazonaws.com/cdn.kelleydrye.com/content/uploads/pdf-snapshots/prepaid-card-provider-seeks-stay-dismissal-of-att-access-charge-suit-20230914234438.pdf) ### Search Blog ### Subscribe ### Explore Topics - [Federal & State Regulatory](https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/federal-state-regulatory) - [Litigation](https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/litigation) ### Related Services - [Communications](https://www.kelleydrye.com/industries/communications)