Firm Advisory: 


On March 20, 2012, the New York Public Service Commission (“PSC”) issued an Order that effectively initiates a proceeding based on a Qwest Complaint alleging intrastate switched access rate discrimination by several named and to-be-named CLECs.1  The Qwest Complaint, which was filed nearly three years ago, seeks to recover “refunds” for alleged rate differentials charged to Qwest under filed tariffs and to other IXCs under alleged off-tariff agreements.

In the Order, the PSC made several significant holdings:

  • Rates for intrastate switched access services established pursuant to agreements are required to be filed with the Commission through a tariff addendum.  The failure to file such tariff addenda may constitute violations of law.
  • The off-tariff agreement between Verizon/MCI and AT&T did not discriminate against Qwest, such that Verizon is dismissed from the case.  The PSC found Qwest was not eligible for the rates in the Verizon-AT&T agreement as that agreement was reciprocal between each company’s CLEC and IXC affiliates and Qwest does not operate a CLEC affiliate in New York.
  • PSC Staff will continue its investigation, and the proceeding will continue, to examine whether “there is a potential basis for refunds” from the remaining CLECs.
  • The PSC will apply a six-year statute of limitations to Qwest’s claims.

Following the Order, PSC Staff served discovery on several New York IXCs asking for copies of all switched access agreements with CLECs.  It is expected that, as a result of this discovery, other currently-unnamed CLECs that have agreements for switched access services at off-tariff rates will be brought into the case.

On April 24th, we filed a Petition for Rehearing of the PSC’s Order, identifying several grounds under which the Order should be reversed and Qwest’s Complaint dismissed.2  Foremost among these is that the Qwest Complaint is barred as a matter of law under New York Public Service Law § 92(2)(d), which codifies the Filed Rate Doctrine.  Our firm is likewise actively representing several CLECs in the analogous proceedings ongoing in Colorado, California and Florida.

With former NY PSC counsel at the firm and an office in Albany, we remain consistently engaged in key telecom matters at the New York Commission.  As we continue to work with the PSC and its Staff on this matter, we would be pleased to provide further information or representation in this proceeding.

For further information concerning these important issues, please contact any of the following attorneys:

Andy Klein 202-289-6955 –

Allen Zoracki 518-336-4300 –

1A copy of the Order may be accessed though the following link:{D16D1C80-3158-426C-8933-41EA73B4335D}

2A copy of the Petition for Rehearing may be accessed through the following link:{EA1776C1-54E9-4DE8-A0D8-CA8DFD50AAD4}

3Qwest’s Petition for Rehearing may be accessed through the following link:{4B7718F0-E748-4236-88D0-E5369347C56A}

This Advisory is provided for general informational purposes as a courtesy to clients and friends of the firm. While it is not intended to be and should not be relied upon as legal advice, we would be pleased to provide additional details, or advice regarding the application of this development to specific facts and circumstances.