March 21, Via E-Docket. Ms. Mary Jo. Kunkle Executive Secretary Michigan Public Service Commission 6545 Mercantile Way Lansing, MI 48911

Transcription

1 3 0 1 E. L I B E R T Y S T R E E T, S U I T E A N N A R B O R, M I T E L E P H O N E : ( ) F A C S I M I L E : ( ) h t t p : / / w w w. d i c k i n s o n w r i g h t. c o m W I L L I A M J. C H A M P I O N I I I w c ha mp i o d i c k i n s o n w r i g h t. c o m ( ) March 21, 2012 Via E-Docket Ms. Mary Jo. Kunkle Executive Secretary Michigan Public Service Commission 6545 Mercantile Way Lansing, MI Re: In the matter of the formal complaint of Michigan Bell Telephone Company d/b/a AT&T Michigan against B&S Telecom, Inc., Quick Communications, Inc. and Bruce Yuille for breach of the approved Interconnection Agreement Between AT&T Michigan and B&S Telecom, Inc. Case No. U Dear Ms. Kunkle: Enclosed for filing in the above-captioned case is AT&T Michigan s Response to Objections to Revised Bill of Costs and Proof of Service in the captioned matter. If you have any questions, please contact me. Very truly yours, Enclosures WJC/jmm William J. Champion III D E T R O I T N A S H V I L L E W A S H I N G T O N, D. C. T O R O N T O P H O E N I X L A S V E G A S T R O Y A N N A R B O R L A N S I N G G R A N D R A P I D S

2 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the formal complaint of ) Michigan Bell Telephone Company d/b/a ) AT&T Michigan against B&S Telecom, Inc., ) Quick Communications, Inc. and Bruce Yuille for ) Case No. U breach of the approved Interconnection ) Agreement between AT&T Michigan and ) B&S Telecom, Inc. ) ) AT&T MICHIGAN S RESPONSE TO OBJECTIONS TO REVISED BILL OF COSTS On February 8, 2012, AT&T Michigan filed a Revised Bill of Costs in accordance with the Commission s January 26, 2012 Order. Anticipating that Respondents would, once again, seek to delay a final resolution of this proceeding, AT&T bent over backwards to eliminate any cost items that even arguably went beyond the recoverable costs ordered by the Commission, reducing the requested costs from more than $87,000 to $31,000. On March 2, 2012, objections to the Revised Bill of Costs were filed by Marc Shulman as Attorney for Plaintiff. Presumably, Mr. Shulman represents one or more of Respondents, but it is not clear which ones. 1 The latest objections are simply another attempt to require AT&T to expend additional time and resources to collect money owed to it by Respondents - money that, unfortunately AT&T is unlikely to ever receive. AT&T will respond briefly, but will not continue to throw good money after bad by addressing each spurious claim. AT&T urges the Commission to make 1 AT&T Michigan is the Complainant in this proceeding. The Respondents are B&S Telecom, Quick Communications, Inc. and Bruce Yuille. On November 16, 2011, Mr. Shulman filed Objections to AT&T s original Bill of Costs on behalf of Quick Communications, Inc. only. 1

3 a decision based on the record without the necessity of further time and resource consuming proceedings. Respondents objections focus on the time AT&T was required to spend responding to the three specific motions the Commission (and the ALJ) found to be frivolous. Not surprisingly, however, Respondents fail to mention the other frivolous positions taken by Respondents during the course of litigation - positions that permeated the entire case. Respondents claim, for example, that the first frivolous position they asserted was contained in the January 14, 2011 motion is simply not true. Their December 10, 2010 motion for summary disposition was based, among other frivolous claims, upon the untenable assertion that B&S never owned or could own said lines or service - a claim the Commission specifically found to be frivolous. Indeed, this position, which was at the heart of Respondents defense to the Section 305 violations, required AT&T to undertake extensive discovery and motions to enforce the Commission s discovery rules. Yet, AT&T has not even sought recovery of those expenses. Likewise, Respondents claim that Mr. Greenlaw s supplemental direct testimony did not involve responding to their frivolous claims is belied by even a cursory reading of his testimony. The testimony was directly relevant to the fraudulent shell game played by Respondents to transfer lines without consideration in violation of the MTA - claims that had as their centerpiece the bald-faced lie that lines were not transferred to Quick. Respondents objections continue their modus operandi of misrepresenting the record. At page 4 of their Objections, Respondents make the bizarre assertion that, on February 16, 2011, AT&T spent 120 hours reviewing a transcript. One is tempted to chalk up this claim as a strange typographical error. Respondents, however make it clear that this is no mere typographical error, but a deliberate misrepresentation, for they argue that the claim of spending 2

4 120 hours to read 115 pages equates to one page per minute. Actually, spending 120 hours to read 115 pages would be closer to one page per hour and, for one attorney to spend 120 hours reading anything on a single day, would require a rather dramatic slowing of the Earth s speed of rotation. It is not necessary to change the length of a day, however, since AT&T s Revised Bill of Costs for February 16, 2011 was for 2.1 hours - not 120 hours - and it encompassed not only a review of the extensive transcript, but a review of Respondents frivolous motion to dismiss based on release. Respondents seek to parse every response to their frivolous motions, ethically challenged pleadings and false testimony by counting words or pages. Respondents essentially take the position that AT&T should have known in advance which paragraphs or pages of Respondents various pleadings and motions contained frivolous material and which pages of the PFD addressed those frivolous claims. AT&T should have then reviewed and analyzed just those paragraphs out of context in order to come to some apportionment of time. That is not how the real world works. The revised Bill of Costs is limited to time spent defending against the three specific motions found to be frivolous and the following frivolous positions identified by the Commission: 1. That payment for services is not a material term of an ICA; 2. That Quick already owned the transferred lines; 3. That B&S customer accounts had no value; 4. The five defenses to nonpayment set forth in Mr. Anuzis testimony. The five defenses asserted in Mr. Anuzis testimony were: First, AT&T knew at the time of the conversion that B&S was going to rely upon such credits due for payment of the first $1.7 3

5 million dollars of the resale invoices [allegedly owed to B&S under its theory that the rates in the parties Local Wholesale Complete contract were somehow unlawful], and completed the conversions without protest. That action amounted to acceptance of Quick s payment terms. Second, due to Michigan Bell s unlawful attempt to limit competition, both companies were forced into buying LWC lines under AT&T s LWC agreement [a demonstrably false claim since Quick never had an LWC contract]. Third, to settle litigation where AT&T admitted to sending Quick some $370,000 in fraudulent invoices, AT&T accepted the contractual obligation to allow Quick to purchase cost-based service that both companies would have used instead of the LWC lines [a claim apparently based on an acceptance of a mediation award in another case that was vacated by the Court of Appeals]. Fourth, we believed that B&S s LWC agreement was unlawful under Michigan Anti-Trust Reform Act because it restrained trade by controlling the wholesale price of landline telephone service, and that AT&T used that agreement to limit competition and fix retail prices [a claim found frivolous by the Oakland County Circuit Court]. Fifth, we believed that the LWC contract violated 84 words of sections 352 and 356 of the Michigan Telecommunications Act [the frivolous claim that Respondents were entitled to UNE-P notwithstanding the Commission s many orders to the contrary]. 2 The reality is that these motions and positions comprise substantially all of the case. Having defrauded AT&T through their schemes to evade payment for service rendered for years and years, Respondents have grown adept at using administrative and legal processes to pour more salt in the wounds. Commission should not sanction additional delay and attempts to evade its orders. There is no need for further proceedings, which would only work to the advantage of Respondents scheme to obfuscate the facts and delay justice. The Commission has all the information it 2 Saul Anuzis Direct Testimony, p. 6, E-Docket Entry No

6 needs. It should award AT&T costs, including reasonable attorney fees, in such amount as it deems appropriate. Respectfully submitted, DICKINSON WRIGHT PLLC Dated: March 21, 2012 By: William J. Champion III (P31934) Attorneys for AT&T Michigan DICKINSON WRIGHT PLLC 301 East Liberty Street, Suite 500 Ann Arbor, MI (734) ANNARBOR v1 5

7 STATE OF MICHIGAN BEFORE THE MICHIGAN PUBLIC SERVICE COMMISSION In the matter of the formal complaint of ) Michigan Bell Telephone Company d/b/a ) AT&T Michigan against B&S Telecom, ) Inc., Quick Communications, Inc. and ) Case No. U Bruce Yuille for breach of the approved ) Interconnection Agreement Between ) AT&T Michigan and B&S Telecom, Inc. ) ) STATE OF MICHIGAN ) )ss COUNTY OF WASHTENAW ) PROOF OF SERVICE Jeanette M. Munro, being first duly sworn, deposes and says she is employed at Dickinson Wright PLLC, and that on March 21, 2012, she caused a copy of AT&T Michigan s Response to Objections to Revised Bill of Costs and this Proof of Service, to be delivered to the parties listed on the attached service list by . Subscribed and sworn to before me this 21st day of March, Jeanette M. Munro Jacqueline K. Tinney, Notary Public Wayne County, Michigan Acting in Washtenaw County, Michigan My Commission Expires: 7/17/12

8 SERVICE LIST Bruce H. Yuille, Esq. Attorney for B&S Telecom, Inc Dixie Highway Clarkston, MI (248) Spencer A. Sattler Assistant Attorney General Michigan Attorney General Public Service Division 6545 Mercantile Way Ste 15 Lansing, MI (517) Richard A. Patterson Administrative Law Judge State Office of Administrative Hearings & Rules 525 West Allegan Street Lansing, MI (517) Marc I. Shulman Marc Shulman & Associates Northwestern Hwy Ste 110 Southfield, MI (248)