482 F.Supp.2d 216 (D.Conn. 2007), C. A. 3 04-cv-2075, Southern New England Telephone Co. v. Global Naps, Inc.

Docket Nº:C. A. 3 04-cv-2075
Citation:482 F.Supp.2d 216
Party Name:Southern New England Telephone Co. v. Global Naps, Inc.
Case Date:March 27, 2007
Court:United States District Courts, 2nd Circuit, District of Connecticut

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482 F.Supp.2d 216 (D.Conn. 2007)



GLOBAL NAPS, INC., Defendant.

Civil Action No. 3:04-cv-2075 (JCH).

United States District Court, D. Connecticut.

March 27, 2007

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Christian F. Binnig, Courtney L. Anderson, Dennis G. Friedman, Hans J. Germann, Mayer Brown Rowe & Maw LLP, Chicago, IL, George M. Moreira, Southern New England Telephone Co., New Haven, CT, James R. Byrne, Tyler Cooper & Alcorn, Hartford, CT, Timothy P. Jensen, Tyler Cooper & Alcorn, LLP, New Haven, CT, for Plaintiff.

Barbara A. Miller, Glenn B. Manishin, Kelley Drye & Warren, LLP-Dc, Washington, DC, Harry Davidow, Carol J. Faherty, Kelley, Drye & Warren, New York

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City, Henry T. Kelly, Kelley Drye & Warren, Chicago, IL, Mark S. Gregory, James M. Moriarty, Kelley Drye & Warren, Stamford, CT, for Defendant.


HALL, District Judge.

The plaintiff, the Southern New England Telephone Company ("SNET"), brings this action against the defendant, Global Naps, Inc. ("Global"), for damages arising from Global's alleged breach of applicable federal and state tariffs and for breach of an interconnection agreement between the two parties. SNET also asserts claims for the violation of the Connecticut Unfair Trade Practices Act ("CUTPA") against Global NAPS.

SNET has moved for partial summary judgment on Count I of the Complaint pursuant to Rule 56 of the Federal Rules of Civil Procedure. Count 1 asserts damages from Global's alleged breach of SNET's federal tariff with respect to twenty-six telecommunications circuits (DS3s, SS7s, and a DS1) provided to Global by SNET. Global has moved for partial summary judgment both with respect to twenty-one of the telecommunications circuits (DS3s) at issue and SNET's CUTPA claim in Count 5. Global has also moved to supplement the summary judgment record based on newly discovered evidence produced in an unrelated lawsuit involving Global.

For the reasons that follow, SNET's motion for partial summary judgment (Doc. No. 281) is GRANTED. Global's motion for partial summary judgment (Doc. No. 287) is DENIED, and Global's motion to supplement the summary judgment record (Doc. No. 369) is GRANTED.


In a motion for summary judgement, the burden is on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgement as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); White v. ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir.2000). Once the moving party has met its burden, the nonmoving party must "set forth specific facts showing that there is a genuine issue for trial," Anderson, 477 U.S. at 255, 106 S.Ct. 2505, and present such evidence as would allow a jury to find in his favor in order to defeat the motion. Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir.2000).

In assessing the record, the trial court must resolve all ambiguities and draw all inferences in favor of the party against whom summary judgement is sought. Anderson, 477 U.S. at 255, 106 S.Ct. 2505; Graham, 230 F.3d at 38. "This remedy that precludes a trial is properly granted only when no rational finder of fact could find in favor of the non-moving party." Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir.2000). "When reasonable persons, applying the proper legal standards, could differ in their responses to the question" raised on the basis of the evidence presented, the question must be left to the jury. Sologub v. City of New York, 202 F.3d 175, 178 (2d Cir.2000).

On cross motions for summary judgment, the court cannot grant summary judgment "unless one of the moving parties is entitled to judgment as a matter of law upon facts that are not genuinely in dispute." Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir.1975).

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SNET is a Connecticut corporation with its principal place of business in New Haven, Connecticut. Global is a Delaware corporation with its principal place of business in Quincy, Massachusetts. Global NAPS has been a licensed telecommunications carrier in Connecticut since 1999.

In 2000, Global requested that SNET negotiate an interconnection agreement under sections 251 and 252 of the Telecommunications Act of 1996 ("1996 Act"), for the purpose of establishing the terms and conditions under which the parties would physically interconnect their networks at a "point of interconnection," or "POI." The parties were unable to agree upon language for a number of contract sections. Consequently, Global petitioned the Connecticut Department of Public Utility Control ("DPUC") to arbitrate the disputed issues pursuant to section 252 of the 1996 Act.

The contract section relevant to this ruling, which Global requested that the DPUC arbitrate, concerned the appropriate contract language for the parties' exchange of "foreign exchange" ("FX") traffic. Global provides its customers with FX service in order to allow those customers to be assigned to a telephone number in a location that is different from the customer's actual location. FX service allows an Internet Service Providers ("ISP") to establish a single point of presence that can be reached by dialing a local number regardless of the physical location of the Internet subscriber.

The source of the parties' disagreement concerned who would bear the physical and financial responsibility for the facilities necessary to transport Global's FX traffic. SNET proposed that section 5.4.6 of the Interconnection Trunking Requirements ("ITR") Appendix concerning Global's FX traffic state: "[i]f either Party uses its NXX Code 1 to provide [FX] service to its customers outside of the geographic area assigned to such code, that Party shall be solely responsible to transport traffic between its [FX] service customer and such code's geographic area." SNET Local Rule 56(a)(1) Statement at 9. 2 Global proposed that section 5.4.6 should state: "[e]ach party is responsible for the transportation and hand-off of traffic consistent with other provisions of this agreement." Global Request for Modification, DPUC Doc. 01-01-30 (App. Tab K to SNET Memo. in Support). In addition, Global proposed that section 2.4 of the ITR state: "[e]ach party is solely responsible for the facilities to its side of the negotiated POI(s) and may use any method of Interconnection described in this Appendix." Id.

On June 12, 2002, the DPUC ordered that SNET's proposed language for ITR § 5.4.6 be included in the parties' interconnection agreement ("ICA"). In September 2002, Global and SNET executed an interconnection agreement that was consistent with the DPUC's ruling.

Around October 2002, Global and SNET completed construction of the physical interconnection between their networks. This involved both parties deploying an underground fiber optic cable between SNET's New Haven tandem office and a Global equipment hut situated approximately 1, 700 feet away. On their respective ends of the fiber optic cable deployed between SNET's New Haven tandem office and Global's New Haven equipment hut, each party deployed electronic equipment

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to establish an "OC-48." This electronic equipment gave the fiber optic cable a potential carrying capacity of 48 DS3s. The parties then designated the Global manhole between SNET's New Haven tandem office and Global's New Haven hut as the POI on the OC-48, which serves as the physical location at which Global's and SNET's networks interconnect.

In October and November of 2002, Global submitted orders to SNET to establish a DS1 circuit and four SS7 signaling links. Two of the SS7 signaling links travel over the DS1 to connect Global's signaling system to SNET's signaling system. Signaling links carry messages associated with calls between signaling databases. These messages allow switches to "talk" to one another to determine how to set up and terminate the communications path for a particular call. In response to Global's requests, SNET provisioned the DS1 and SS7s.

In December 2002, Global submitted orders for six DS3 circuits to carry traffic from various SNET tandem locations to either, as SNET asserts, the parties' POI or, as Global asserts, to the SNET New Haven tandem office. See SNET L.R. 56(a)(1) at ¶ 59; Global L.R. 56(a)(2) at ¶ 59. The order forms indicate that SNET provided the circuits Global requested. Between March 2003 and April 2005, Global submitted orders for fifteen additional DS3 circuits. The order forms for these circuits indicate that SNET provisioned the requested circuits.

For each month since SNET claims to have provisioned the circuits in question, it billed Global at rates established by SNET's federally filled tariff. SNET claims that it billed Global for the four SS7 signaling links pursuant to section 17.2.1 of SNET's federal tariff. The relevant portion of the section states:

Dedicated Signaling Transport (DST) is a Switched Access service which provides interconnection to the Telephone Company Channel Signaling Network ... using a dedicated two-way signaling path between a customer designated premises and a Telephone Company Signal Transfer Point (STP). DST uses a dedicated signaling link and a dedicated STP port. The signaling link provides the connection from the customer designated premises to the Telephone Company STP. The STP port provides the customer access to the Telephone Company SS7 network.

SNET Tariff F.C.C. No. 39 at § 17.2.1. SNET further claims that it billed Global for the DS! and DS3 transport circuits under section 7.1 of its federal tariff. This section, which pertains to facilities that provide "special access"...

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