Southwestern Bell Telephone Co. v. Fitch (801 F. Supp. 2d 555, 2011)

MEMORANDUM AND ORDER

NANCY F. ATLAS, District Judge.

Plaintiff is Southwestern Bell Telephone Company d/b/a AT & T Texas (“AT & T Texas”) and Defendant is F. Cary Fitch d/b/a Affordable Telecom (“Affordable”). Each party alleges that the other has failed to pay money required under their June 2007 Two-Way CMRS Interconnection Agreement (“2007 Agreement”). Pending before the Court is AT & T Texas’s Motion for Summary Judgment [Doc. # 42] (“AT & T Texas’s Motion”) to which Affordable has responded [Doc. # 45], and AT & T Texas has replied [Doc. #46]. Also pending before the Court is Affordable’s Motion for Partial Summary Judgment [Doc. # 43] (“Affordable’s Motion”), to which AT & T Texas has responded [Doc. #44], and Affordable has replied [Doc. #47]. The Court heard oral argument on these summary judgment motions on May 18, 2011 [Doc. # 59]. The motions are now ripe for decision. Having considered the parties’ briefing, the applicable legal authorities, and all matters of record, the Court concludes that AT & T Texas’s Motion should be granted in part and denied in part and Affordable’s Motion should be denied.

I. BACKGROUND

A. Regulatory Background

The Telecommunications Act of 1996, 47 U.S.C. § 151 et seq. (the “1996 Telecom Act”) requires incumbent local exchange carriers (“ILECs”), such as AT & T Texas, to provide “interconnection with the [ILEC’s] network” for “the facilities and equipment of any requesting telecommunications carrier.” 47 U.S.C. § 251(c)(2). This interconnection is accomplished through “interconnection agreements” with the competitive local exchange carriers (“CLECs”) even though they compete with the ILEC providing the interconnection. CLECs and ILECs all provide land-line telecommunications services.

The Federal Communications Commission (“FCC”) has extended the right to establish interconnection agreements under 47 U.S.C. §§ 251 and 252 to Commercial Mobile Radio Service (“CMRS”) carriers that provide wireless services, such as paging or cellular telephone services. ILECs and CMRS carriers physically interconnect their networks pursuant to the terms of their interconnection agreements. These interconnections allow CMRS carriers and ILECs to exchange traffic over their networks for delivery to their end users (ie., the caller and the called/receiving party).

The CLECs and ILECs are permitted to and do charge each other fees for the services they render to each other pursuant to the interconnection agreements. The prices to be paid for the routing of the calls are established in the interconnection agreements.

B. Prior Dealings Between the Parties

In 2001, Fitch obtained a one-way CMRS license that allowed him to provide paging services. AT & T Texas then began delivering traffic to Affordable (Fitch’s sole proprietorship) under an interim agreement. Affordable then sought a formal interconnection agreement from the Public Utility Commission of Texas (“PUCT”). On July 15, 2005, the PUCT issued an arbitration award, which as modified, dictated the terms of that interconnection agreement.

Affordable had sought from the PUCT authority to provide not only paging services through his interconnection agreement with AT & T Texas but also to use those interconnection trunks and facilities to allow customers to call a dial-up Internet access service that Affordable offered under the name “USA Wide.net.” In this PUCT proceeding, Affordable thus sought to serve as an “Internet Service Provider” (“ISP”) and sought to use its interconnection with AT & T Texas to carry Internet access traffic. The FCC has recognized that ISPs “are end users of telecommunications services that are required to purchase LEC business lines” from local exchange carriers like AT & T Texas in order to receive calls to their dial-up Internet service. Affordable sought to avoid this requirement through the PUCT proceeding.

Relying on 47 C.F.R. § 51.100(b), the PUCT rejected Affordable’s claims that it could use its paging interconnection with AT & T Texas to carry Internet access traffic because Affordable did not offer telecommunications service “through” interconnection facilities; rather, it merely transmitted radio signals to activate its pagers. The PUCT arbitrators explained that “47 C.F.R. § 51.100(b) allows the offering of information service through an interconnection facility, but only as an incident to the telecommunications service for which the carrier obtained the interconnection facility.” The PUCT arbitrators concluded that Affordable was only authorized to provide paging services, and “consequently [it] may not receive any traffic other than paging traffic through the interconnection facility.” Affordable appealed the PUCT’s decision to the federal district court, which affirmed the PUCT. The Fifth Circuit also affirmed. Affordable nevertheless continued to operate as an ISP for approximately one year after the PUCT’s decision.

C. Formation of the 2007 Agreement

At some point, Affordable obtained a two-way CMRS license from the FCC, which allows the company to both send and receive wireless radio communications within a limited bandwidth. Affordable then sought to adopt the interconnection agreement between Cingular and AT & T Texas. AT & T Texas was required by law to let any “requesting telecommunications carrier” opt into this agreement. See 47 U.S.C. § 252(i); 47 C.F.R. § 51.809. AT & T Texas initially resisted Affordable’s request to adopt that agreement, expressing concern that Affordable would use this new agreement to improperly provide information services, just as Affordable had done under the one-way paging agreement. Affordable’s counsel represented that Affordable acquired his two-way CMRS license to comply with the PUCT’s decision. On June 22, 2007, AT & T Texas and Affordable formally entered into an interconnection agreement (“2007 Agreement”), which the PUCT approved. The 2007 Agreement called for the parties to “connect their facilities and interchange traffic ... as telecommunications carriers for the purpose of offering wireless to wireline or wireline to wireless communications service to their respective end users....”

D. The Instant Lawsuit

Several billing and other disputes have arisen between the parties. AT & T Texas claims that Affordable has failed to pay for services under the 2007 Agreement. AT & T Texas states that it provided facilities and services pursuant to the 2007 Agreement and submitted charges to Affordable but that, despite repeated demands for payment, Affordable has refused to remit the sums due. AT & T Texas therefore brings claims for breach of contract.

Affordable disputes many of AT & T Texas’s billings and further alleges that AT & T Texas has refused to pay certain compensation that Affordable claims is due. Affordable brings counterclaims against AT & T Texas for breach of contract, declaratory judgment, and violations of the Telecom Act.

AT & T Texas alleges that in the months preceding the 2007 Agreement, Affordable represented to the FCC that it would be providing not only “information services” but also “telecommunications services,” such that it was entitled to “interconnection” under FCC rules. AT & T Texas states that these representations by Affordable were key to AT & T Texas’s willingness to enter the 2007 Agreement, and to the PUCT’s approval of the 2007 Agreement, but these representations were materially false.

Affordable concedes that more than ninety percent of its business comes from its ISP customers or “Internet service provider aggregator customers” (collectively referred to herein as “ISPs,” “ISP customers,” or “dial-up ISP customers”). Affordable defines these customers as “receiving] telecommunication service via delivery of calls from the PSTN to equipment owned by [the ISP, Affordable’s customer]. [Affordable] transports and terminates calls that originate on the PSTN to the [ISP] customer-designated demarcation.” The PSTN, ie., the public switched telephone network, is “the worldwide voice telephone network accessible to all those with telephones and access privileges.” Affordable concedes its ISP customers provide “dial-up Internet service” and that Affordable provides only “PRI circuits” to the ISPs. Affordable concedes this service is essentially providing its dial-up ISP customers with business lines that they would otherwise have to purchase from LECs. Affordable’s two-way wireless services under the June 2007 Agreement are unrelated to the services it provides to the ISPs, and its dial-up ISP customers do not use the wireless spectrum. AT & T Texas alleges that this use of Affordable’s interconnection is a breach of the 2007 Agreement. Affordable disputes this characterization and seeks a declaration that Affordable is allowed to provide these services through his interconnection with AT & T Texas. AT & T Texas also alleges that Affordable Telecom’s representations to Plaintiff and the FCC, namely, its representations that it would provide telecommunications services in addition to information services, were false. Based upon these allegations, AT & T Texas asserts a claim for fraud.

The parties have filed cross-motions for summary judgment, which have been fully briefed and are ripe for decision.

II. STANDARD FOR SUMMARY JUDGMENT

Rule 56 of the Federal Rules of Civil Procedure “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party’s case, and on which that party will bear the burden at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc); see also Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). “The Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548; Weaver v. CCA Indus., Inc., 529 F.3d 335, 339 (5th Cir.2008).

For summary judgment, the initial burden falls on the movant to identify areas essential to the non-movant’s claim in which there is an “absence of a genuine issue of material fact.” Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). The moving party may meet its burden by pointing out “‘the absence of evidence supporting the nonmoving party’s case.’ ” Duffy v. Leading Edge Prods., Inc., 44 F.3d 308, 312 (5th Cir.1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir.1992)).

If the moving party meets its initial burden, the non-movant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001) (internal citation omitted). “An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (internal citations omitted).

In deciding whether a genuine and material fact issue has been created, the facts and inferences to be drawn from them must be reviewed in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003) (internal citation omitted). The Court may make no credibility determinations or weigh any evidence, and must disregard all evidence favorable to the moving party that the jury is not required to believe. See Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir.2010) (citing Reaves Brokerage Co., 336 F.3d at 412-113). However, factual controversies are resolved in favor of the non-movant “only ‘when both parties have submitted evidence of contradictory facts.’ ” Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir.2004) (quoting Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999)).

The non-movant’s burden is not met by mere reliance on the allegations or denials in the non-movant’s pleadings. See King v. Dogan, 31 F.3d 344, 346 (5th Cir.1994); Johnston v. City of Houston, 14 F.3d 1056, 1060 (5th Cir.1994). Likewise, “conclusory statements, speculation, and unsubstantiated assertions cannot defeat a motion for summary judgment.” RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir.2010); see also Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 399 (5th Cir.2008). “A party cannot defeat summary judgment with ‘only a scintilla of evidence.’ ” Delta & Pine Land Co., 530 F.3d at 399 (quoting Little, 37 F.3d at 1075).

Rather, a party must support any assertion that a fact cannot be or is genuinely disputed by “(a) citing to particular parts of materials in the record ...; or (b) showing that the materials cited do not establish the absence or present of a genuine dispute, or that an adverse party cannot produce admissible evidence to support that fact.” Fed. R. Civ. P. 56(c)(1). Affidavits cannot defeat summary judgment unless they contain competent and otherwise admissible evidence. Fed. R. Civ. P. 56(c)(4). A party’s self-serving and unsupported statement in an affidavit will not defeat summary judgment where the evidence in the record is to the contrary. See In re Hinsley, 201 F.3d 638, 643 (5th Cir.2000).

Further, “the court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3). “Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.” Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.2003). “When evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court.” Id.

In the absence of any proof, the court will not assume that the non-movant could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). Rather, “if a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c),” the court may, inter alia, “(2) consider the fact undisputed for purposes of the motion; [or] (3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it .... ” Fed. R. Civ. P. 56(e).

Finally, when evaluating cross-motions for summary judgment, the “[c]rossmotions must be considered separately, as each movant bears the burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.” Shaw Constructors v. ICF Kaiser Eng’rs, Inc., 395 F.3d 533, 538-39 (5th Cir.2004) (citing 10A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2720 (3d ed. 1998) (“Wright”)). “But if there is no genuine issue and one or the other party is entitled to prevail as a matter of law, the court will render judgment.” Wright, § 2720.

III. AT & T TEXAS’S MOTION

AT & T Texas moves for summary judgment that (i) AT & T Texas has properly billed Affordable according to the terms and conditions of the 2007 Agreement, (ii) AT & T Texas is entitled to recover approximately $1.8 million billed, (iii) AT & T Texas is not liable for usage charges that Affordable has billed to AT & T Texas, (iv) Affordable has breached the contract by misusing the interconnection when the connection is used for land-to-land calls to Affordable’s dial-up ISP customers, (v) Affordable’s fraud claim is barred as a matter of law, and (vi) that AT & T Texas is not liable for any of Affordable’s counterclaims.

A. AT & T Texas’s Contract Claims

The elements of a claim for breach of contract are: (1) a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach. Pegram v. Honeywell, Inc., 361 F.3d 272, 288 (5th Cir.2004); SLT Dealer Group, Ltd. v. AmeriCredit Fin. Servs., 336 S.W.3d 822, 828 (TexApp.-Houston [1st Dist.] 2011, no pet. h.); Taub v. Houston Pipeline Co., 75 S.W.3d 606, 615 (TexApp.-Texarkana 2002, pet. denied); Guzman v. Ugly Duckling Car Sales of Texas, L.L.P., 63 S.W.3d 522, 528 (Tex.App.-San Antonio 2001, pet. denied); Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (TexApp.-Houston [14th Dist.] 2000, no pet.). A breach occurs when a party fails or refuses to do something he has promised to do. Townewest Homeowners Ass’n, Inc. v. Warner Commc’n Inc., 826 S.W.2d 638, 640 (Tex.App.Houston [14th Dist.] 1992, no writ); Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). “Reliance is not required to prove a breach of contract.” Nat’l W. Life Ins. Co. v. Rowe, 86 S.W.3d 285, 297 (Tex.App.Austin 2002) rev’d on other grounds, 164 S.W.3d 389 (Tex.2005) (not released for publication).

A court must determine whether a contract is ambiguous as a matter of law. Instone Travel Tech Marine & Offshore v. Int’l Shipping Partners, 334 F.3d 423, 428 (5th Cir.2003); H.E. Butt Grocery Co. v. Nat’l Union Fire Ins. Co., 150 F.3d 526, 529 (5th Cir.1998); Nat’l Union Fire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex.1995). Determining whether ambiguity exists, the court must look at the contract as a whole in light of the circumstances existing at the time of execution. Instone Travel, 334 F.3d at 431 (citing In re El Paso Refinery, LP, 302 F.3d 343, 353 (5th Cir.2002)); Exxon Corp. v. West Tex. Gathering Co., 868 S.W.2d 299, 302 (Tex.1993). “These circumstances include the commonly understood meaning in the industry of a specialized term, which may be proven by extrinsic evidence such as expert testimony or reference material.” XCO Prod. Co. v. Jamison, 194 S.W.3d 622, 627-628 (Tex.App.-Houston [14 Dist.], 2006, pet. denied). The terms of a contract are ambiguous if they are subject to two or more reasonable interpretations. Balandran v. Safeco Ins. Co., 972 S.W.2d 738, 741 (Tex.1998); see also Cicciarella v. Amica Mut. Ins. Co., 66 F.3d 764, 768 (5th Cir.1995) (“A contract is ambiguous only ‘when its meaning is uncertain and doubtful or it is reasonably susceptible of more than one meaning.’ ” (quoting Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983))). On the other hand, if the terms of the contract can be given a definite or certain legal meaning, then the contract is not ambiguous. H.E. Butt, 150 F.3d at 529; CBI Indus., 907 S.W.2d at 520.

The Court is to interpret the terms of an unambiguous contract as a matter of law. Gonzalez v. Denning, 394 F.3d 388, 392 (5th Cir.2004); MCI Telecomms. Corp. v. Texas Utils. Elec. Co., 995 S.W.2d 647, 650 (Tex.1999). “In construing a written contract, the primary concern of the court is to ascertain the true intentions of the parties as expressed in the instrument.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex.2005) (citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003), Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex.2000), and Coker, 650 S.W.2d at 393 (Tex.1983)). “To achieve this objective, courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be. rendered meaningless.” Id. (citing J.M. Davidson, Inc., 128 S.W.3d at 229, and Coker, 650 S.W.2d at 393). “Contract terms are given their plain, ordinary, and generally accepted meanings unless the contract itself shows them to be used in a technical or different sense.” Id. (citing Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996), W. Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W.2d 554, 557 (1953), and Provident Life & Accident Ins. v. Knott, 128 S.W.3d 211, 219 (Tex.2003)). “Language should be given its plain grammatical meaning unless it definitely appears that the intention of the parties would thereby be defeated.” Reilly v. Rangers Mgmt., Inc., 727 S.W.2d 527, 529 (Tex.1987) (citing Fox v. Thoreson, 398 S.W.2d 88, 92 (Tex.1966)).

1. AT & T Texas’s Charges Billed to Affordable

AT & T Texas seeks to recover charges billed for facilities that AT & T Texas provided to Affordable under the 2007 Agreement to route Affordable’s traffic. These facilities include one-way trunks that route traffic from AT & T Texas to Affordable (“Land-to-Mobile traffic”), one way trunks that route traffic from Affordable to AT & T Texas (“Mobile-to-Land traffic”), and two-way trunks that route traffic in both directions. AT & T Texas seeks to charge Affordable $1,536,678.00 for one-way trunks routing Land-to-Mobile traffic, $41,950.00 for one-way trunks routing Mobile-to-Land traffic, and $73,029.60 for two-way trunks that route traffic in both directions. The key disputed contract provisions are in Section 3.1 of the 2007 Agreement, which addresses the parties’ respective responsibilities for Land-to-Mobile traffic and Mobile-to-Land traffic.

AT & T Texas also seeks to recover usage charges for transiting and terminating traffic to Affordable. AT & T Texas seeks to charge Affordable $32,949.93 in usage charges for transiting and terminating traffic that the parties exchange.

Land-to-Mobile Facilities Charges.— Section 3.1.2 of the 2007 Agreement addresses the parties’ responsibilities for Land-to-Mobile traffic. That Section provides:

3.1.2 Land to Mobile Traffic

3.1.2.1 AT & T TEXAS shall be responsible for the delivery of traffic from its network to the appropriate point of interconnection (within the serving wire center boundary of the end office in which the tandem, providing the Type 2A interconnection[,] is located ...) on its network for the transport and termination of such traffic by [Affordable] to a[n Affordable] end user.

3.1.2.2 Unless AT & T TEXAS elects to have [Affordable] or a third party provision facilities, AT & T TEXAS shall provide the physical plant facilities that interconnect AT & T TEXAS’ point of interconnection with [Affordable]’s

point of interconnection. AT & T TEXAS shall be responsible for the physical plant facilities to the appropriate point of interconnection (within the serving wire center boundary of the end office in which the tandem, providing the Type 2A interconnection[,] is located ...) on its network.

Pursuant to Section 2.4.1 of the 2007 Agreement, the rates Affordable must pay for facilities purchased from AT & T Texas “are specified in Section 7 of the inter or intrastate special access tariffs.”

AT & T Texas argues that pursuant to Section 3.1.2.1, AT & T Texas is responsible for the costs of facilities used to route Land-to-Mobile traffic to Affordable, but only for the costs of delivering traffic within the serving wire center boundary of the end office in which the tandem providing the Type 2A interconnection is located. Affordable does not dispute that the word “responsible” as used in Section 3 of the 2007 Agreement means obligated to pay costs. The thrust of this aspect of the parties’ billing dispute (i.e., Land-to-Mobile traffic) is that AT & T Texas contends that Affordable must pay for facilities beyond the serving wire center boundary of the Type 2A tandem.

The 2007 Agreement defines “tandem” as “a switching system that provides a concentration and distribution function for originating or terminating traffic between end offices, other tandems, and Third Party Providers.” The 2007 Agreement defines an “end office” as “a local AT & T TEXAS switching point at which AT & T TEXAS end user station loops are originated and terminated for purposes of interconnection to each other and to the network.” In other words, the end office is the connection between AT & T Texas and its customers, and the end offices are served by the tandem. A “serving wire center” is the “wire center from which service is provided to the customer.” Wire center boundaries define the geographic area in which all customers served by a given wire center are located. The unambiguous meaning of these terms is that traffic (a call) is “within” the “serving wire center boundary” only when the traffic originates within one of the end offices served by the tandem serving the end office where the call terminates, or more simply, when the call originates and terminates within the same wire center boundary. Accordingly, AT & T Texas is only responsible for paying the costs of facilities used to transport traffic that originates within the wire center boundary of Affordable’s Mobile Switching Centers (“MSCs”). In contrast, Affordable is responsible for paying the costs of facilities used to transport traffic that originates outside the wire center boundary of Affordable’s MSC.

The parties dispute AT & T Texas’s invoice charges to Affordable for Land-to-Mobile facilities that Affordable ordered outside the serving wire center where AT & T Texas delivers the traffic. AT & T Texas billed Affordable for the facility costs associated with Land-to-Mobile traffic outside the serving wire center in both the Houston and Austin Local Access and Transport Areas (“LATAs”). For example, in the Houston LATA, AT & T Texas billed Affordable for facilities used to transport traffic from tandem offices in Nacogdoches, Huntsville and outlying areas of Houston to tandems in downtown Houston connected to Affordable’s MSC. These disputed billings are inter alia for Affordable’s dial-up ISP customers’ receipt of land-line calls from dial-up Internet users in Nacogdoches and Huntsville, which calls had to be routed over AT & T Texas’s trunks to Affordable’s MSC that Affordable chose to place in downtown Houston.

Affordable advances two principal arguments as to why he should not have to pay these costs. First, Affordable relies on Southwestern Bell Telephone Co. v. PUC, 348 F.3d 482 (5th Cir.2003), and the FCC’s reciprocal compensation regulations, 47 C.F.R §§ 51.703(b), 51.709(b). The Southwestern Bell case involved an interconnection agreement that was the product of compulsory arbitration under 47 U.S.C. § 252(b). The Fifth Circuit affirmed the district court’s ruling that the FCC’s reciprocal compensation rules, 47 U.S.C. § 251(b) and 47 C.F.R. § 51.703, governed the agreement and did not allow the ILEC, Southwestern Bell, to charge the CLEC, AT & T, for traffic originating on Southwestern Bell’s network. Affordable thus argues that federal law prohibits AT & T Texas from charging for trunks that carry AT & T Texas-originated traffic. Affordable’s reliance is misplaced. Section 3 of the 2007 Agreement, including sections 3.1.2.1 and 3.1.2.2 that require Affordable to pay for the facilities needed to route AT & T Texas-originated traffic outside of the serving wire boundary, was the result of voluntary negotiations under 47 U.S.C. § 252(a), as explained below and thus the authorities on which Affordable bases its argument are inapplicable.

The Federal Telecommunications Act provides two mechanisms for creating interconnection agreements under 47 U.S.C. §§ 251 and 252. Agreements may be reached by voluntary negotiations or mediation under § 252(a), or may be established by “compulsory arbitration” under § 252(b). Section 252(a)(1) expressly allows parties to negotiate an agreement “without regard to the standards set forth in subsections (b) and (c) of section 251.” 47 U.S.C. § 252(a)(1); see also Coserv Ltd. Liab. Corp. v. Sw. Bell Tel. Co., 350 F.3d 482, 485 (5th Cir.2003) (“Under the provision for voluntary negotiations, the parties are free to reach any agreement, without regard to the duties set forth in § 251.” (citing 47 U.S.C. § 252(a)(1))). When all or part of an agreement is voluntary, 47 U.S.C. § 252(e)(2)(A) authorizes a state commission to reject the agreement (or any voluntary part of it) only if: (i) the agreement (or portion thereof) discriminates against a telecommunications carrier not a party to the agreement; or (ii) the implementation of such agreement or portion is not consistent with the public interest, convenience, and necessity. See also 47 C.F.R. § 51.3 (“To the extent provided in [47 U.S.C. § 252(e)(2)(A) ], a state commission shall have authority to approve an interconnection agreement adopted by negotiation even if the terms of the agreement do not comply with the requirements of this part.”). The regulations on which Affordable relies, 47 C.F.R. §§ 51.703(b), 51.709(b), were promulgated to implement the reciprocal compensation provisions of 47 U.S.C. § 251(b), and do not apply to voluntarily negotiated agreements. 47 U.S.C. § 252(a)(1); Coserv Ltd. Liability Corp., 350 F.3d at 485; Globaleyes Telecomms., Inc. v. Verizon N., Inc., 425 B.R. 481, 493-94 (S.D.Ill.2010) (rejecting, on appeal from bankruptcy court’s grant of summary judgment, argument that 47 C.F.R. § 51.709 governed or superseded contract terms that were voluntarily negotiated under 47 U.S.C. § 252(a)(1), and noting that the “contention that every interconnection agreement must comply with 47 C.F.R. § 51.709 is inaccurate.”).

Section 25.1 of the 2007 Agreement states that the Agreement was “entered into as a result of both private negotiation between the Parties and arbitration by the Commission.” AT & T Texas has provided uncontradicted evidence that Section 3 of the 2007 Agreement was the result of voluntary negotiations under 47 U.S.C. § 252(a). The 2007 Agreement Affordable entered into was the same agreement AT & T Texas first established with its affiliate Cingular Wireless in 1998. When the parties submitted that agreement to the PUCT, AT & T Texas and its affiliate represented to the PUCT that “[tjhis Agreement constitutes the negotiated contract between SWBT and a CMRS provider” and is a “bilateral agreement, reached as a result of negotiations and compromise.” The parties sought approval of the agreement under the standards for state commission review of voluntary agreements. The PUCT approved the 1998 agreement under the § 252(e)(2)(A) standards for negotiated agreements. In approving the 1998 agreement, the PUCT stated: “Approval of the Agreement does not constitute Commission determination on whether or not the terms and conditions of this agreement comply with the requirements of Section 251 of the FTA [or] the regulations prescribed by the [FCC] pursuant to Section 251 of the FTA ....” The 2007 Agreement remained voluntary even when Affordable entered into it; the parties’ joint submission requested and obtained PUCT approval under the nondiscriminatory/public interest standards of 47 U.S.C. § 252(e)(2)(A). Affordable has not provided contradictory evidence and has failed to raise a genuine issue of material fact that the 2007 Agreement was not voluntarily negotiated under § 252(a). Because the evidence establishes that the Section 8 compensation obligations of the 2007 Agreement were negotiated in 1997 after the pertinent FCC rules implementing § 251(b) were adopted, those terms were voluntary and did not have to comply with 47 U.S.C. § 251(b) and (c). For these reasons, 47 C.F.R. §§ 51.708(b), 51.709(b), and Southwestern Bell v. PUC, 348 F.3d 482 (5th Cir.2003), which involved an arbitrated agreement under 47 U.S.C. § 252(b), do not apply to the 2007 Agreement provisions at issue here.

Second, Affordable argues that there is a single point of interconnection (“POI”) in each LATA and that Affordable is not liable for trunks on AT & T Texas’s side of the POI. It is undisputed that Affordable only has a single POI in each LATA. Rather, the parties dispute whether Affordable has a contractual right to a single POI without incurring the costs of delivering traffic over AT & T Texas lines to that POI whenever Affordable requires delivery of calls originating outside the serving wire center of the tandem serving Affordable’s MSC. To the extent Affordable argues that it is entitled to a single, cost-free POI pursuant to 47 U.S.C. § 251(b), the reciprocal compensation regulations (47 C.F.R. §§ 51.703(b), 51.709(b)), and Southwestern Bell v. PUC, 348 F.3d 482 (5th Cir.2003), Affordable’s reliance on these authorities is misplaced, as explained above, because these authorities are inapplicable.

Affordable also relies on Section 2.2.1.1, Section 2.5.1, and Appendix DCO of the 2007 Agreement to support its argument that it is not liable for transmission over the trunks on AT & T Texas’s side of the POI. Section 2.2.1.1 provides that Affordable

may interconnect with AT & T TEXAS’ network at any technically feasible point. The parties acknowledge for purposes of this requirement that the locations listed in Appendix DCO constitute technically feasible points of interconnection for Carrier to pass traffic to AT & T TEXAS for transport and termination by AT & T TEXAS on its network or for transport to a Third Party Provider.

Section 2.5.1 similarly provides that “Carrier locations listed in Appendix DCO constitute technically feasible points of interconnection [that] Carrier shall provide for AT & T TEXAS to pass traffic for transport and termination on Carrier’s network.” Appendix DCO lists twenty-nine AT & T Texas tandems in various LATAs throughout Texas. Appendix DCO also lists Affordable’s five MSCs and provides that “[t]he F. Cary Fitch d/b/a Affordable Telecom points of interconnection include the following MSCs and their subtending cell sites.” None of these contract provisions address cost responsibility. Rather, these 2007 Agreement provisions unambiguously authorize locations for Affordable to “interconnect with AT & T TEXAS’ network,” namely, “at any technically feasible point” the parties designate. Appendix DCO lists all “technically feasible” points that Affordable may select to locate one or more MSCs or POIs. The portion of Appendix DCO setting out where Affordable has elected to have MSCs, lists five of those locations and makes plain that Affordable is allowed have more. Appendix DCO thus authorizes Affordable to select additional POIs within any of the serving wire centers from which traffic might originate. Other sections of the 2007 Agreement, specifically, Sections 3.1.2.1 and 3.1.2.2, as explained above, allocate financial responsibility and impose the financial consequences of Affordable’s decision not to select additional POIs within certain LATAs.

Affordable also argues that the facilities it ordered from AT & T Texas to handle traffic from outside the serving wire center to his MSC {e.g., from Nacogdoches or Huntsville to Houston) do not constitute “interconnection” and Affordable should not have to pay for these facilities. This argument ignores the unambiguous language of the 2007 Agreement, which defines “interconnection” to include “the connection of separate pieces of equipment, facilities, or platforms between or within networks for the purpose of transmission and routing of Telephone Exchange Service traffic and Exchange Access traffic.” Any trunks and facilities Affordable ordered from AT & T Texas to provide service to his customers constitute interconnection because they are “equipment, facilities or platforms between or within network for the purpose of transmission and routing of Telephone Exchange Service traffic and Exchange Access traffic.” That Affordable does not have a POI where AT & T Texas has provided dedicated facilities to serve Affordable does not mean that Affordable is not utilizing AT & T Texas’s interconnection service.

Based on the foregoing, the Court concludes that the 2007 Agreement requires Affordable to pay AT & T Texas for trunks and facilities that deliver to Affordable’s MSC all Land-to-Mobile traffic that originates outside the servicing wire center boundary of the tandem serving Affordable’s MSCs. AT & T Texas provides evidence that the unpaid fees for these services through February 2011, total $1,536,678.00.° These fees, and others, are likely still accruing. For this reason, the Court declines to decide the precise amount owed by Affordable for these or any other charges. The parties are ordered to determine the precise amounts owed in light of the foregoing ruling interpreting the 2007 Agreement. The parties must appear for a conference on July 28, 2011, at 10:15 a.m., to discuss this and other matters related to entry of a complete or partial final judgment.

Mobile-to-Land Facilities Charges.— Section 3. 1.1 of the 2007 Agreement addresses the parties’ responsibilities for Mobile-to-Land traffic, that is, traffic that originates on Affordable’s network and terminates on AT & T Texas’s network. Section 3.1.1 provides:

3.1.1 Mobile to Land Traffic

3.1.1.1 [Affordable] shall be responsible for the delivery of traffic from its network to AT & T TEXAS’ network for the transport and termination of such traffic by AT & T TEXAS to a[n] AT & T TEXAS end user or for delivery by AT & T TEXAS to a Third Party Provider.

3.1.1.2. Unless [Affordable] elects to provision its own facilities, AT & T TEXAS shall provide the physical plant facilities that interconnect [Affordable]’s network with AT & T TEXAS’ network. AT & T TEXAS shall provision mobile to land connecting facilities for [Affordable] under the terms and conditions specified in Section 7 of the applicable inter- or intrastate access tariff.

As discussed above in conjunction with Sections 3.1.2.1 and 3.1.2.2, “responsible” means responsible for paying costs of the facilities. Sections 3.1.1.1 and 3.1.1.2 unambiguously state that if AT & T Texas provides Mobile-to-Land facilities, Affordable must pay for them under the terms and conditions specified in Section 7 of the applicable inter-or intrastate access tariff.

Affordable disputes AT & T Texas’s charges for Mobile-to-Land facilities, arguing that these trunks are on AT & T Texas’s side of the point of interconnection (the POI) and, under the FCC’s reciprocal compensation rules, AT & T Texas’s usage charges already encompass those costs. Affordable argues these costs cannot be “double recovered through ‘facility/trunk’ assessments.” Affordable provides no evidence or legal authority for its argument. Furthermore, as discussed above, the FCC’s reciprocal compensation rules found in 47 C.F.R. §§ 51.703(b), 51.709(b) do not apply to Section 3 of the 2007 Agreement because it was voluntarily negotiated pursuant to 47 U.S.C. § 252(a). Affordable’s argument is rejected.

Affordable also relies on Fitch’s Declaration to argue that there are factual disputes regarding the POI location for Mobile-to-Land trunks in every LATA except Corpus Christi. Even if there are factual disputes, they are not material here. The location of an Affordable POI is immaterial to Affordable’s responsibility to pay the tariffs charged by AT & T Texas for the AT & T Texas facilities that Affordable ordered for Mobile-to-Land traffic. The plain language of Sections 3.1.1.1 and 3.1.1.2 of the 2007 Agreement says nothing about the location of Affordable’s POIs. These contract terms make Affordable responsible for any and all AT & T Texas facilities Affordable ordered to accomplish delivery of Mobile-to-Land traffic originating on Affordable’s network.

AT & T states that Affordable owes $41,950 for these charges. Affordable has not disputed that figure and has waived any challenge this regard.

Two-Way Facilities Charges.— Section 2.4.4 addresses the parties’ responsibility for two-way facilities, which transport both Land-to-Mobile and Mobile-to-Land traffic. That section provides that “[Affordable] and AT & T TEXAS may share AT & T TEXAS interconnection facilities at the rates specified in Section 7 of the applicable inter-or intrastate special access tariff. Charges will be shared by the Parties based on a proportional (percentage) basis as specified in Appendix PRICING.” Section 6.0 of the “Appendix Pricing,” which was agreed to prior to commencement of performance under the 2007 Agreement, establishes a sharing ratio of “70% mobile to land and 30% land to mobile,” thereby assessing 70% of the cost of a two-way facility to Affordable. Affordable disputes these charges, arguing simply that, under the Agreement and FCC rules, AT & T Texas can assess charges only for facilities/trunks on Affordable’s side of the POI. Affordable does not identify any section of the Agreement that establishes this division of responsibility. Nothing in the 2007 Agreement makes such an allocation (ie., restricting AT & T Texas’s charges for two-way trunks to Affordable’s side of the POI). Nor does Affordable identify the “FCC rules” on which it relies here. To the extent Affordable again relies on the FCC’s reciprocal compensation rules, those provisions are inapplicable to Section 2.4.4 of the 2007 Agreement, which was voluntarily negotiated. Affordable’s contention flies in the face of the parties’ plain language in their 2007 Agreement, which assigns 70% cost-responsibility for two-way facilities to Affordable, regardless of a POI’s location. Accordingly, the express language of the 2007 Agreement establishes that Affordable is hable for 70% of the cost of two-way trunks between the parties. Affordable’s contentions regarding two-way trunks are rejected.

AT & T Texas calculates that Affordable owes $73,029.60 for the two-way trunk charges. Affordable has not lodged any dispute regarding that calculation. Affordable thus has waived any such challenge.

2. Affordable’s Usage Charges to AT & T Texas

Affordable seeks to charge AT & T Texas $246,000 in “Usage Charges” for terminating AT & T Texas-originated traffic. AT & T Texas argues that virtually all of this AT & T Texas-originated traffic is wireline calls from AT & T Texas’s wireline customers to Affordable’s dial-up ISP customers. Affordable does not dispute that these calls are totally wireline calls, ie., land-to-land traffic. AT & T Texas argues that the 2007 Agreement only authorizes Affordable to provide CMRS traffic, which involves some aspect of wireless service. As such, AT & T Texas argues that it should not have to pay Affordable for terminating traffic to Affordable’s dial-up ISP customers because that land-to-land traffic is not authorized under, and thus is a breach of, the 2007 Agreement. “A fundamental principle of contract law is that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from any obligation to perform.” Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692 (Tex.1994); accord Long Trusts v. Griffin, 222 S.W.3d 412, 415 (Tex.2006). The Court thus must determine whether the 2007 Agreement authorizes Affordable to transport and terminate wireline calls to its dial-up ISP customers.

Several provisions of the 2007 Agreement make clear that Affordable is permitted under that Agreement to transmit over AT & T Texas’s lines only communications that involve a wireless customer. First, Affordable entered into the 2007 Agreement based on its representations that it was “a duly authorized common carrier engaged in providing Commercial Mobile Radio Services (‘CMRS’) in the State of Texas.” The FCC defines CMRS as “[a] mobile service that is: (a)(1) provided for profit, i.e., with the intent of receiving compensation or monetary gain; (2) [a]n interconnected service; and (3) [available to the public, or to such classes of eligible users as to be effectively available to a substantial portion of the public; or (b) The functional equivalent of such a mobile service described in paragraph (a) of this section.” 47 C.F.R. § 20.3 (emphasis added). The FCC defines a “mobile service” as “[a] radio communication service carried on between mobile stations or receivers and land stations, and by mobile stations communicating among themselves ...” Id. It is undisputed that Affordable does not provide CMRS or wireless service to its dial-up ISP customers.

Second, the parties “agreed to connect their facilities and interchange traffic ... for the purpose of offering wireless to wireline or wireline to wireless communications service to their respective end users.” Affordable does not dispute that the calls it terminates to its dial-up ISP customers are wireline to wireline traffic.

Third, Section 3, which sets the terms and conditions for exchange of traffic, references only “Mobile to Land” and “Land to Mobile” traffic. It is undisputed that the AT & T Texas-originated calls that Affordable terminates to its dial-up ISP customers are Land-to-Land calls. Affordable argues that the references to “Land-to-Mobile” and “Mobile-to-Land” in Section 3 merely denote which network is originating and which network is receiving the call. While the Court is not persuaded that the provisions in Section 3 are so limited, the fact that Affordable’s network is referred to in the 2007 Agreement as “Mobile” supports AT & T Texas’s position that the 2007 Agreement only authorizes Affordable to transport mobile, or wireless, traffic.

Finally, it is undisputed that Affordable only has Type 2A interconnection with AT & T Texas, and a Type 2A interconnection is defined in the 2007 Agreement as “[fjacilities which provide a trunk side connection between [Affordable]’s MSC and a AT & T Texas Wireless Tandem.” The 2007 Agreement defines “Mobile Switching Center” as “[Affordable]’s facilities and related equipment used to route, transport, and switch Wireless Calls to a from the public switched telephone network.” The 2007 Agreement defines “Wireless Tandem” as “a switching system that provides a concentration and distribution function for originating or terminating traffic between wireless MSCs and the landline network and has the software necessary to provide wireless interconnection services.” The 2007 Agreement thus clearly contemplates that Affordable’s Type 2A interconnection with AT & T Texas would be used to transport wireless traffic.

The Court concludes that these provisions, taken as a whole, unambiguously authorize Affordable to provide only wireless communications through his interconnection agreement with AT & T Texas.

Despite these provisions, Affordable argues that wireline calls to "its dial-up ISP customers are “Wireless Calls” as that term is defined in the 2007 Agreement. The 2007 Agreement defines “Wireless Calls” as “all calls originating from or terminating to the [Affordable] network.” Affordable argues that, because the ISPs are on Affordable’s network, wireline calls to the ISPs are “Wireless Calls” under the 2007 Agreement. Affordable’s interpretation would render meaningless many other provisions of the 2007 Agreement establishing that Affordable is only authorized to transport wireless, that is, CMRS, traffic. The Court construes this provision in context, as a matter of law, to encompass only those calls that terminate to a wireless or CMRS end-user. See Valence Operating Co., 164 S.W.3d at 662 (“[C]ourts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.”).

Affordable argues that “The Reciprocal Compensation for ISP Bound Traffic and Federal Telecommunications Act Section 251(b)(5) Traffic Amendment” to the 2007 Agreement (“Reciprocal Compensation Amendment”) allows Affordable to transport traffic to all ISPs and requires AT & T Texas to compensate Affordable for doing so. The Reciprocal Compensation Amendment states: “The Parties agree to compensate each other for the transport and termination of ISP-bound Traffic and Section 251(b)(5) Traffic on a minute of use basis, at $.0007 per minute of use.” The Reciprocal Compensation Agreement also provides that:

This Amendment is intended to super-cede any and all contract sections, appendices, attachments, rate schedules, or other portions of the underlying Interconnection Agreement that set forth rates, terms and conditions for the terminating compensation for ISP-bound Traffic and Section 251(b)(5) Traffic exchanged between ILEC and CARRIER. Any inconsistencies between the provisions of this Amendment and provisions of the underlying Interconnection Agreement shall be governed by the provisions of this Amendment.

Affordable’s argument thus is that it is not limited to providing wireless traffic to CMRS end users and that it is allowed to provide wireline traffic to its dial-up ISP customers because otherwise the Reciprocal Compensation Amendment would be read out of the contract.

The Court is unpersuaded. The Reciprocal Compensation Amendment sets an FCC-approved rate the parties may charge each other for ISP traffic covered by the 2007 Agreement. The issue dividing the parties is the scope of ISP 'traffic authorized under the 2007 Agreement in light of the Reciprocal Compensation Amendment. The Amendment defines “ISP-bound Traffic” as “ISP-bound traffic lawfully compensable under the FCC ISP Compensation Order.” The FCC ISP Compensation Order held that ISP-bound traffic was “information access” under 47 U.S.C. § 251(b)(5) and was excepted from the scope of “telecommunications” subject to reciprocal compensation under section 251(b)(5). The only reference to CMRS carriers in the FCC ISP Compensation Order was that its holding “does not affect either the application of [section 251(b)(5) ] to LEC-CMRS interconnection or our jurisdiction over LEC-CMRS interconnection under section 332.” The FCC ISP Compensation Order thus did not address the question of whether a CMRS carrier could transmit wireline calls to dial-up ISPs. As such, the definition of ISP-bound traffic in the Reciprocal Compensation Amendment is not persuasive, let alone dispositive, authority supporting Affordable’s position.

Affordable also argues the Reciprocal Compensation Amendment allows it to receive AT & T Texas originated calls bound for its dial-up ISP customers, even though they are not CMRS or wireless customers. AT & T Texas’s position is that “the only ISP-bound traffic for which [Affordable] can impose reciprocal compensation charges is ISP-bound traffic that is also CMRS traffic, ie., traffic routed through his radio towers.” The Court concludes that AT & T Texas’s position best accords with the parties’ expressed intentions in the 2007 Agreement. The 2007 Agreement, read in its entirety, only authorizes Affordable to transport wireless CMRS traffic over AT & T Texas’s facilities. Because the traffic Affordable transports to its dial-up ISP customers is purely wire-line traffic, it is not authorized under the 2007 Agreement. Accordingly, Affordable may not charge AT & T Texas for terminating wireline calls to Affordable’s ISP customers.

AT & T Texas contends that it is not liable for the $246,000 in termination charges that Affordable claims. As earlier noted, “[a] fundamental principle of contract law is that when one party to a contract commits a material breach of that contract, the other party is discharged or excused from any obligation to perform.” Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692 (Tex.1994); accord Long Trusts v. Griffin, 222 S.W.3d 412, 415 (Tex.2006). AT & T Texas admits, however, that “[germinating charges are owed by AT & T to [Affordable] for Land-to-Mobile calls that AT & T Texas delivers to [Affordable] and [Affordable] ‘terminates’ to [its] CMRS customers.” Affordable argues that AT & T Texas admitted that 10% of Affordable’s traffic was CMRS traffic, and therefore AT & T Texas cannot dispute 10% of Affordable’s billings. AT & T Texas disagrees. The Court declines to decide the amount, if any, owed by AT & T Texas for CMRS traffic.

3. AT & T Texas’s Breach of Contract Claim

In its Complaint [Doc. # 1], AT & T Texas alleges that Affordable breached the 2007 Agreement by failing to pay amounts due for facilities and services provided under the 2007 Agreement as discussed above. The elements of a claim for breach of contract are: (1) a valid contract; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff was damaged as a result of the breach. Pegram v. Honeywell, Inc., 361 F.3d 272, 288 (5th Cir.2004); Taub v. Houston Pipeline Co., 75 S.W.3d 606, 615 (Tex.App.-Texarkana 2002, pet. denied); Guzman v. Ugly Duckling Car Sales of Texas, L.L.P., 63 S.W.3d 522, 528 (Tex.App.-San Antonio 2001, pet. denied); Frost Nat’l Bank v. Burge, 29 S.W.3d 580, 593 (Tex.App.-Houston [14th Dist.] 2000, no pet.). It is undisputed that the 2007 Agreement is a valid contract and that AT & T Texas performed by interconnecting with Affordable. Affordable’s failure to pay for those facilities and services as required by the Court’s interpretation of the 2007 Agreement constitutes a breach of the 2007 Agreement. AT & T Texas has claimed damages as set forth in its invoices, summarized in Lenhart’s Declaration, which Affordable has failed to pay to date. AT & T Texas is entitled to summary judgment on its breach of contract claim for unpaid invoices.

In its Motion for Summary Judgment [Doc. #42], AT & T Texas also contends that it is “entitled to a summary judgment holding that [Affordable] breached the 2007 Agreement by misusing the interconnection for calls to ISPs.” In requesting relief, AT & T Texas asks the Court to “grant summary judgment that ... (4) [Affordable] has breached the contract by misusing the interconnection for land-to-land calls to ISPs and should be ordered to stop using the interconnection for these calls.” Affordable objects that this claim was never raised in AT & T Texas’s pleadings and that AT & T Texas therefore cannot seek summary judgment on this claim. Affordable argues that its breach of the 2007 Agreement by misusing its interconnection with AT & T Texas to service its dial-up ISP customers is wholly unrelated to AT & T Texas’s breach of contract claim, which Affordable argues is limited to the claim for unpaid invoices. Affordable is mistaken. All of AT & T Texas’s factual allegations in the Complaint, which included allegations that Affordable was misusing its interconnection to transport wireline traffic to its dial-up ISP customers, are incorporated into AT & T Texas’s breach of contract cause of action by reference. The parties have engaged in full discovery on the factual matters pertaining to the ISP-misuse theory in connection with AT & T Texas’s breach of contract claim. AT & T Texas’s breach claim therefore is deemed to encompass its theory that Affordable breached the 2007 Agreement by misusing its interconnection to transmit wireline traffic to its dial-up ISP customers.

The Court’s ruling rejecting Affordable’s counterclaim for reciprocal compensation under the 2007 Agreement with respect to Affordable’s transport of wireline traffic to its dial up ISP customers disposes of this claim as well. The 2007 Agreement does not permit Affordable to use its interconnection with AT & T Texas to transport wireline traffic to its dial up ISP customers. That use constitutes a breach of the 2007 Agreement. AT & T Texas is entitled to summary judgment on this breach of contract claim.

AT & T Texas’s Motion for Summary Judgment further includes a request for injunctive relief. “To obtain permanent injunctive relief, a plaintiff must demonstrate: ‘(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.’ ” ITT Educ. Servs., Inc. v. Arce, 533 F.3d 342, 347 (5th Cir.2008) (quoting eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006)). “A plaintiff must allege ‘specific facts’ to support a finding of irreparable injury.” Id. The Fifth Circuit has also explained that “[pjermanent injunctions are never lightly given. They are hedged about with circumspection: to win one, a petitioner must show a clear threat of continuing illegality portending immediate harmful consequences irreparable in any other manner.” Posada v. Lamb County, 716 F.2d 1066, 1070 (5th Cir.1983) (citing United States v. W.T. Grant Co., 345 U.S. 629, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), and Baldwin Metals Co., Inc. v. Donovan, 642 F.2d 768, 775 & n. 17 (5th Cir.1981)); accord Ballenger v. Mobil Oil Corp., 138 Fed.Appx. 615, 622 (5th Cir.2005). The Court concludes that AT & T Texas is not entitled to a permanent injunction because AT & T Texas has not demonstrated why monetary damages cannot provide adequate compensation for the injury caused by Affordable’s wrongdoing. AT & T Texas argues it has no adequate remedy at law to address Affordable’s continuing breach of the 2007 Agreement because the 2007 Agreement does not directly impose monetary costs on Affordable for misusing the interconnection to route wireline traffic to its dial-up ISP customers. AT & T Texas also argues that “[pjroving future lost profits from the business lines that [Affordable’s] ISP customers should be purchasing from AT & T Texas or another local exchange carrier ‘would be considerably more difficult’ and, therefore, injunctive relief is warranted.” The Court is unpersuaded. AT & T Texas has cited the Court to FCC authority suggesting that an “ISP typically purchases business lines from a LEC, for which [the ISP] pays a flat monthly fee that allows unlimited incoming calls.” AT & T Texas has not shown that, should Affordable continue to breach the 2007 Agreement by transporting wireline traffic to its dial-up ISP customers, it would be sufficiently difficult to prove future lost profits. The Court declines to issue a permanent injunction at this time.

B. AT & T Texas’s Fraud Claim

In its Reply [Doc. # 46], AT & T Texas indicates that its fraud claim against Affordable is “unnecessary if AT & T Texas obtains summary judgment on its contract claim and establishes non-liability for Affordable’s billings” because “the damages from the fraud are essentially the same as the contract damages and liability.” The Court has granted summary judgment in favor of AT & T Texas on its contract claims and has granted summary judgment establishing that AT & T is not liable for the disputed portion of Affordable’s billings. Accordingly, the Court deems AT & T Texas’s fraud claim abandoned with prejudice.

C. AT & T Texas’s Request for Summary Judgment on Affordable’s Other Counterclaims

AT & T Texas also seeks summary judgment establishing “AT & T’s non-liability for [Affordable’s] counterclaims.” Affordable asserts myriad counterclaims. Specifically, Affordable has pleaded counterclaims for (1) Declaratory Judgment, essentially seeking declarations duplicating the other substantive causes of action; (2) violations of §§ 201, 202, 251(b)(5), 251(e) and 332(c)(1)(B) of the Telecom Act and the associated FCC implementing rules; (3) breach of contract; (4) fraud; and (5) tortious interference.

Declaratory Judgment Counterclaims. — At oral argument, Affordable narrowed its claims. Affordable withdrew its tortious interference claims, and abandoned all its declaratory judgment claims except “the one relating to Affordable Telecom’s ability to provide service to ESPs.” The remaining declaratory judgment claim thus appears to be Affordable’s request that the Court permit Affordable to service its dial-up ISP customers under the 2007 Agreement. The Court has already concluded that the 2007 Agreement does not permit Affordable to provide wireline service to its dial-up ISP customers. As explained above, Affordable’s request for a declaration that the 2007 Agreement allows Affordable to provide wireline service, as op