LSSI Data Corp. v. Time Warner Cable, Inc. (892 F. Supp. 2d 489, 2012)

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge:

Plaintiff LSSi Data Corp. (“LSSi”) moves, pursuant to 47 U.S.C. §§ 202(a), 251(b)(3), and 406, for a preliminary injunction compelling defendant Time Warner Cable, Inc. (“TWC”) to provide it with all directory assistance listing data for TWC’s telephone subscribers. For the following reasons, LSSi’s motion is denied.

I. Regulatory Background

LSSi’s primary claim in this case is made under the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56 (1996) (the “TCA”). The provision on which LSSi relies, 47 U.S.C. § 251(b)(3), as interpreted by the Federal Communications Commission (“FCC”), entitles certain telecommunications industry participants to access, under nondiscriminatory terms, the directory assistance (“DA”) listing data of industry participants known as “local exchange carriers,” or LECs. TWC is, in many states, a LEC, and LSSi claims that it is entitled under § 251(b)(3) to TWC’s DA data. Alternatively, LSSi claims that it is entitled to the same data under 47 U.S.C. § 202(a), a provision of the Communications Act of 1934 (“the Communications Act”), 47 U.S.C. § 151 et seq., which prohibits a common carrier from engaging in discriminatory practices “in connection with its provision of communications services.”

Understanding the complex regulatory framework is imperative to understanding LSSi’s claims and the parties’ respective arguments.

The Communications Act put in place the initial framework for federal regulation of the telecommunications industry. Enacted in response to the dominance of the telephone industry by American Telephone & Telegraph Company and its affiliates, the Communications Act gave the FCC broad authority to regulate interstate telephone service. See, e.g., Global Crossing Telecomms., Inc. v. Metrophones Telecomms., Inc., 550 U.S. 45, 48, 127 S.Ct. 1513, 167 L.Ed.2d 422 (2007); MCI Telecomms. Corp. v. AT & T Co., 512 U.S. 218, 235, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994) (Stevens, J., dissenting). The FCC, in turn,

used this authority to develop a traditional regulatory system much like the systems other commissions had applied when regulating railroads, public utilities, and other common carriers. A utility or carrier would file with a commission a tariff containing rates, and perhaps other practices, classifications, or regulations in connection with its provision of communications services. The commission would examine the rates, etc., and, after appropriate proceedings, approve them, set them aside, or, sometimes, set forth a substitute rate schedule or list of approved charges, classifications, or practices that the carrier or utility must follow.

Global Crossing Telecomms., 550 U.S. at 48, 127 S.Ct. 1513.

The Communications Act also included provisions specifically aimed at “eliminating] the use of monopolistic power to stifle competition.” Law Offices of Curtis V. Trinko v. Bell Atl. Corp., 305 F.3d 89, 99 (2d Cir.2002), rev’d on other grounds by Verizon Commc’ns v. Trinko, 540 U.S. 398, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004); see also MCI Telecomms. Corp., 512 U.S. at 235, 114 S.Ct. 2223. One such provision, codified at 47 U.S.C. § 202(a), provides a remedy for market participants aggrieved by discriminatory practices of a common carrier. Section 202(a) provides:

It shall be unlawful for any common carrier to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service, directly or indirectly, by any means or device, or to make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.

See, e.g., Trinko, 305 F.3d at 98-99; National Commc’ns Ass’n Inc. v. AT & T, 238 F.3d 124, 127 (2d Cir.2001); Li Xi v. Apple Inc., 603 F.Supp.2d 464, 471 (E.D.N.Y.2009); Net2Globe Int’l v. Time Warner Telecom of NY., 273 F.Supp.2d 436, 460 (S.D.N.Y.2003). As noted, LSSi brings this suit based, in part, on § 202(a).

In 1996, Congress enacted the TCA, which dramatically altered the regulatory landscape. The TCA sought to move the telecommunications industry from an environment characterized by close regulation, a finite number of competitors, and high barriers to entry, to one marked by a “procompetitive, deregulatory national policy framework designed to accelerate rapid private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition.” S. Conf. Rep. No. 104-230, 104th Cong., 2d Sess. 1 (1996).

In implementing that policy, Congress recognized that a significant barrier to entry was presented by the fact that incumbent local exchange carriers (“ILECs”) tended to “own[] the local exchange networks]]] the physical equipment necessary to receive, properly route, and deliver phone calls among customers.” Talk Am., Inc. v. Mich. Bell Tel. Co., — U.S. -, 131 S.Ct. 2254, 2257-58, 180 L.Ed.2d 96 (2011) (citing Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467, 490, 122 S.Ct. 1646, 152 L.Ed.2d 701 (2002)). Without congressional action, “a new, competitive LEC could not compete with an incumbent carrier without basically replicating the incumbent’s entire existing network” at prohibitive cost. Talk Am., Inc., 131 S.Ct. at 2258. To redress that competitive disadvantage, the TCA “imposed a number of duties on incumbent providers of local telephone service in order to facilitate market entry by competitors.” Id. at 2257. Most relevant here, Congress “requir[ed] incumbent LECs to share their networks with competitive LECs.” Id. at 2258.

In enacting the TCA, Congress further recognized that “the competitive provision of directory assistance is a necessary element of a competitive local telecommunications market.” Provision of Directory Listings Information Under the Communications Act of 193b, as Amended, First Report and Order (the “2001 Order”), 16 FCC Red. 2736, at ¶ 2 (2001). As the FCC has explained, giving local exchange carriers access to local directory assistance data is vital to the goal of attaining robust competition in local telecommunications markets. That is because, “[without nondiscriminatory access to the incumbents’ directory assistance databases, competing DA providers may be unable to offer a competitive directory assistance product. This, in turn, may affect the ability of both DA providers and the [competing LECs] that rely on them to compete in the local exchange marketplace.” 2001 Order, 16 FCC Red. 2736 at ¶ 3.

To achieve these ends, Congress enacted § 251(b)(3), which is central to this litigation. It provides:

(b) Obligations of all local exchange carriers. Each local exchange carrier has the following duties:

(3) Dialing parity. The duty to provide dialing parity to competing providers of telephone exchange service and telephone toll service, and the duty to permit all such providers to have nondiscriminatory access to telephone numbers, operator services, directory assistance, and directory listing, with no unreasonable dialing delays.

47 U.S.C. § 251(b)(3).

The TCA does not itself amplify on the standards by which an entity in the industry may qualify as a “competing provider! ] of telephone exchange service” under § 251(b)(3), so as to require a LEC (hereinafter, the “providing LEC”) to provide it with access to its DA data. However, the FCC has addressed this issue, in a series of orders construing the TCA. These include the 2001 Order, supra, and In the Matter of Implementation of the Telecommunications Act of 1996: Telecommunications Carriers’ Use of Customer Proprietary Network Information and Other Customer Information; Implementation of the Local Competition Provisions of the Telecommunications Act of 1996; Provision of Directory Listing Information under the Communications Act of 1931, as Amended (the “2005 Order”), 20 FCC Red. 9334 (2005).

Specifically, the FCC has determined that three categories of market participants are entitled under § 251(b)(3) to nondiscriminatory access to the DA data of a providing LEC: (1) a competing LEC, known as a “CLEC”; (2) an agent of a competing LEC who provides directory assistance services for that CLEC; and (3) a competing provider of “call competition services.” 2005 Order, 20 FCC Red. 9334, at ¶ 3; 2001 Order, 16 FCC Red. 2736, at ¶¶ 14, 22, 27-29. In its orders, the FCC has explained why affording these entities access to a providing LEC’s DA data vindicates the statute’s text and procompetitive purpose. The FCC has also elaborated on the contours of the three categories. Later in this opinion, the Court addresses each category in detail, in the course of discussing LSSi’s claims to fit within each.

II. Background to the Current Dispute

A. The Parties

The plaintiff, LSSi, is a subsidiary of VoltData Resources LLC (‘Volt”). LSSi has consistently held itself out as a data aggregator and seller — an entity that eollects, combines, and sells data relating to telephone subscribers. LSSi Supp. Br. 1,3. As LSSi described itself to another federal court:

LSSi is an aggregator of data from all of the carriers in North American and in other countries. What we do is we take direct feeds from the phone companies, we take all of those feeds and we combine them together to create a national directory assistance file. We then use that file with our customers for a variety of directory assistance related purposes ... we also provide the data for companies to do things like credit collections where you want to find out where somebody is located, we provide the data so they can look up people by name and address or name to find address information or name to find phone information.

LSSi Data Corp. v. Comcast Phone, LCC, Civil Action No. 1:11-cv-0124-CAP (N.D.Ga.), April 20, 2011 Hg. Tr., at 33 (Sherman Decl. Ex. 5). LSSi’s website similarly states, in a “Company Overview,” that LSSi:

uniquely delivers the most current and accurate names, addresses, and phone numbers with associated detail as an enterprise-based vendor to source contact information directly from AND for major telecommunication providers .... Business, residential and government contacts are included in data resources measured in the hundreds of millions of records. database-marketing services, data-processing, listing verification, and mobile and online data solutions to a variety of companies across a broad spectrum of industries, including telecommunications service providers and cable operators, credit and collections, direct marketers, and online and offline retail providers.

Oldach 3d Supp. Deck, Ex. 1 at LSSI 00004521. And the website of LSSi’s parent company, Yolt, describes LSSi as performing:

Id. at LSSI00004527.

The parties agree that a data aggregator and seller does not, without more, have a right to access a LEC’s DA data under § 251(b)(3). Rather, an entity has such rights only if it also fits into one or more of the categories of industry participants the FCC recognized in the 2001 Order. See Hg. Tr. 161 (statement of LSSi’s counsel). Here, LSSi claims to fit into all three: It claims to be (1) a LEC competing with TWC, (2) an agent providing directory assistance services for a LEC competing with TWC, and (3) a competing provider of qualifying “call competition services.” The central issue in this case is whether LSSi has substantiated these claims, by competent proof.

The defendant, TWC, is a telecommunications carrier. Ans. ¶ 9. It provides telephone services in 28 states. In many, including New York, TWC is state-certified as a LEC.

B. Factual Background

This dispute has its origins in a 2010 negotiation in which LSSi sought, but ultimately failed, to acquire access to and unrestricted use of TWC’s directory assistance data.

1. TWC’s Negotiations with LSSi and Others

In 2003, TWC introduced digital telephone service. Minshew Decl. ¶ 2. Until 2010, TWC provided its telephone customers with service by using the network facilities of Sprint Communications Co. Loyer Decl. ¶ 2. Sprint thus connected TWC’s customers with customers of existing LECs in TWC’s service areas. Id. Sprint was also solely responsible for providing DA listing data for TWC’s customers to other directory assistance providers. Id.

In 2010, TWC decided to transition to a new, “Go-It-Alone” business model, under which it would gradually cease using Sprint’s network facilities to provide services to its customers, and would instead use its own. Id. at ¶ 3. TWC, however, lacked a directory assistance platform. It also lacked the technical capability to access its customers’ listing information in a format that could be made available to other directory assistance providers. Min-shew Decl. ¶ 4. To address the latter situation, TWC initiated negotiations with vendors, seeking to retain a vendor or vendors who would (1) create a customer database for TWC, and (2) interact with outside directory assistance providers on TWC’s behalf, including making TWC customers’ data available to them. Id. at ¶¶ 4-5.

One vendor that TWC approached was LSSi. In March 2010, TWC approached LSSi to inquire whether LSSi could act as TWC’s vendor, for the purpose of providing TWC’s customers’ DA data to other directory assistance providers. Id.; 01-dach Dep. 6 (Sherman Decl. Ex. 3). Those negotiations broke down, however, when TWC insisted on maintaining control over the uses to which LSSi would put TWC customers’ information. In particular, TWC insisted on prohibiting LSSi from selling such data to telemarketers. Loyer Decl. ¶ 6; Minshew Dep. 118-21, 126-27, 130-32. LSSi did not agree to that restriction. Loyer Decl. ¶ 6.

TWC then entered into discussions with a different company, Targus info (“Targus”), to act as TWC’s vendor to distribute its customer data to directory assistance providers. Loyer Decl. ¶ 8. Unlike LSSi, Targus agreed not to sell TWC’s customer data to telemarketers; to use that data only as TWC expressly permitted; and not to use TWC’s customer data for its own purposes without TWC’s express consent. Id. at ¶¶ 8, 10-11. TWC ultimately entered into an agreement with Targus that embodied those restrictions. Id. ¶¶ 9-10. Under that agreement, TWC “outsourced its subscriber listing and directory assistance data collection, management, and distribution functions to Targus.” Min-shew Decl. ¶ 6. Targus was given TWC’s DA data; it took on responsibility for both aggregating TWC’s data into a database formatted so as to be accessible by directory assistance providers, and managing that database. Id. ¶¶ 9-11; Loyer Decl. ¶¶ 8-10; see also Davis Deck, Ex. A. (reproducing TWC/Targus agreements).

TWC retained two other outside vendors to perform distinct roles relating to its customer data. It retained a company called Neustar to, inter alia, filter, process and convert TWC’s raw customer data into a “data feed.” Minshew Deck ¶ 4. Neustar generates and delivers this data feed to Targus. Id. at ¶ 8. Targus, in turn, uses the data feed to create and augment the DA database for which it is responsible. Id. at ¶ 9.

TWC also retained kgb USA (“KGB”). KGB’s role is to provide directory assistance (i.e., 411 service) on TWC’s behalf, to TWC’s digital phone customers. TWC determined that — much as it was more economical to outsource its data collection and distribution functions to Targus — it was more economical to outsource its directory assistance functions to KGB than to develop a directory assistance capability of its own. Id. ¶ 13. To enable KGB to provide such directory assistance, KGB entered into an agreement with Targus. Id. ¶ 14. Under the KGB/Targus agreement, Targus sells KGB access to TWC’s subscriber listing and DA database, for the sole purpose of allowing KGB to provide directory assistance services. Id; see also Ainge Decl. ¶¶ 6-7 (attesting, on Targus’s behalf, that “TWC has agreed to allow Targus to provide TWC’s subscriber listings and directory assistance data to [KGB] ... KGB pays Targus for this information and agrees to use it only for its directory assistance business. KGB is prohibited from selling this information to any third parties, including telemarketers.”).

2. LSSi’s Demand for TWC’s Directory Assistance Listing Data

In June 2010, TWC notified LSSi that it had selected another vendor to provide directory assistance listing services for it. Loyer Decl. ¶ 9.

In September 2010, LSSi contacted TWC. LSSi demanded access to TWC subscribers’ DA data. It claimed, for the first time, a legal right to such access under the Communications Act and the TCA. Loyer Decl. ¶¶ 7, 12; Hg. Tr. 104; LSSi Supp. Br. 7. TWC responded by informing LSSi that LSSi should direct its request for access to that database to Targus, because Targus is responsible for managing TWC’s DA database and making it accessible to directory assistance providers. See Sept. 30, 2010 Loyer e-mail to LSSi (Sherman Decl. Ex. 21). LSSi did not, apparently, contact Targus.

In May 2011, LSSi again contacted TWC to demand its DA data. LSSi claimed a statutory right to receive such data, based on 47 U.S.C. § 251(b)(3). LSSi stated that it was (1) a competing LEC of TWC’s, (2) an agent providing directory assistance services for a competing LEC of TWC’s, and (3) a provider of qualifying “call competition services.” LSSi Supp. Br. 14. LSSi also claimed that TWC was unlawfully discriminating against it, in violation of 47 U.S.C. § 202(a), by providing Targus, and not LSSi, direct access to TWC’s database. TWC responded, through counsel, by demanding proof that LSSi did, in fact, have a right to such access under § 251(b)(3). Brill Decl. ¶¶ 3-4 & Ex. 1; LSSi Supp. Br. 14; Davis Decl. Ex. F. LSSi did not supply TWC with any such proof. Instead, after a series of email exchanges between counsel, see Brill Decl. ¶¶ 4-5; Davis Decl. Ex. F, LSSi filed this lawsuit.

C. Procedural History

On July 5, 2011, LSSi filed a Complaint against TWC and a motion for a preliminary injunction in the U.S. District Court for the Northern District of Georgia. Dkt. 1-2. LSSi’s Complaint sought a declaratory judgment, pursuant to 28 U.S.C. § 2201, that TWC had violated § 251(b)(3) of the TCA and § 202(a) of the Communications Act by refusing to provide its DA data to LSSi on the same terms that it had provided that data to Targus, whom LSSi described as its competitor, or on the same terms as TWC received such data itself. Two months earlier, LSSi had obtained a preliminary injunction from the same court in a lawsuit against a different LEC, Com-cast Phone, LLC (“Comcast”), in which LSSi had sought similar relief. See LSSi Data Corp. v. Comcast Phone, LLC, 785 F.Supp.2d 1356 (N.D.Ga.2011) (“the Com-cast decision”).

On August 16, 2011, LSSi’s motion for a preliminary injunction in this case was fully submitted. Dkt. 19.

On November 1, 2011, the Hon. Charles A. Pannell, Jr., without addressing the merits, granted TWC’s motion to transfer this action to the Southern District of New York. Dkt. 34.

On November 16, 2011, by letter, TWC requested expedited discovery on LSSi’s preliminary injunction motion. Dkt. 89. On November 29, 2011, by letter, LSSi opposed that application. Dkt. 90.

On December 7, 2011, the Court held an extended telephone conference with the parties to discuss TWC’s request for expedited discovery on LSSi’s motion. Dkt. 51. TWC stated that it disputed LSSi’s claim of a statutory entitlement under 47 U.S.C. § 251(b)(3), in particular, that LSSi is (1) a competing LEC with respect to TWC, (2) the directory assistance agent of a LEC competing with TWC, or (3) a provider performing qualifying call completion services. TWC argued, in essence, that although LSSi would like to access TWC’s subscriber data so as to permit it to sell such data, including to telemarketers, LSSi has no statutory right to it. To enable it to resolve this dispute, the Court authorized the taking of discovery on LSSi’s motion. The Court directed the parties to jointly develop a schedule for expedited discovery.

On December 13, 2011, the Court endorsed the parties’ proposed schedule with respect to discovery and briefing. Dkt. 52. The schedule authorized each party to obtain document discovery and to take five depositions, on the topics of (1) LSSi’s statutory entitlement to TWC’s data, (2) the alleged harm to LSSi if an injunction were not granted, (3) the alleged harm to TWC and the public interest if an injunction were granted, and (4) LSSi’s delay in bringing this lawsuit. Id.

On January 27, 2012, at TWC’s request, the Court extended the pre-motion fact discovery deadline from January 31, 2012 to February 14, 2012. Dkt. 57.

On February 28, 2012, LSSi submitted a supplemental memorandum of law and supporting materials in support of its motion. These materials consisted of three declarations of fact from LSSi’s President and Rule 30(b)(6) witness, Richard Oldach, and various supporting materials. On March 14, 2012, TWC filed an opposition, with supporting factual materials. On March 21, 2012, LSSi submitted its reply.

On April 19, 2012, the Court held a hearing on LSSi’s motion. At that hearing, the Court heard testimony from 01-dach, whom LSSi had designated as its corporate representative, pursuant to Fed. R.Civ.P. 30(b)(6). The Court also heard extended oral argument.

D. Summary of Arguments on LSSi’s Preliminary Injunction Motion 1. LSSi’s Arguments

LSSi argues that it is likely to succeed on the merits of its claim of entitlement to TWC’s data under 47 U.S.C. § 251(b)(3). On this issue, LSSi urges the Court to look to Judge Pannell’s Comcast decision for guidance, because that decision states that LSSi is a competing LEC, a provider of call completion services, and a directory assistance agent of a competing LEC. In any event, LSSi argues, the evidence adduced in discovery in this case establishes that it fits within each of these three categories. LSSi further argues that TWC is violating its duty to furnish access to its DA data on nondiscriminatory terms, principally because, it claims, its competitor, Targus, is receiving TWC’s data on preferential terms. For similar reasons, LSSi argues that TWC has violated 47 U.S.C. § 202(a), by engaging in discriminatory practices with respect to access to its DA data.

As to the other elements required to obtain a preliminary injunction, LSSi claims that it is suffering, and absent an injunction, will continue to suffer, irreparable harm. It states that its inability to access TWC’s DA data is inhibiting it from competing with Targus in the market for the sale of DA data. LSSi also argues that Targus is unfairly exploiting its preferential access to TWC’s data to gain other advantages in the marketplace.

2. TWC’s Arguments

TWC disputes LSSi’s entitlement under all three § 251(b)(3) categories. It argues that the evidence shows that: (1) LSSi is a certified LEC in only three states, in none of which TWC is a LEC; thus, in no state is LSSi a LEC competing with TWC; (2) LSSi does not have an agency relationship with any LEC competing with TWC pursuant to which it provides that LEC with the directory assistance services sufficient to qualify for a right of access under the 2001 Order; and (3) LSSi does not conduct “call completion services” as defined by the FCC. TWC also argues that no deference is due to the Comcast decision, because LSSi’s claim in that case to be a “competing provider of telephone exchange service” under § 251(b)(3) was assumed to be true based on its pleadings, and was not litigated. TWC also argues that, even if LSSi fit § 251(b)(3), TWC has not discriminated against it with respect to access to its DA data, because TWC has merely outsourced to Targus its responsibility for disseminating that data, and Targus is prohibited from using TWC’s data for its own purposes. TWC also argues, as to § 202(a), that any competition between LSSi and Targus is in the market for the sale of customer data, with which § 202(a) is not concerned.

As to irreparable harm, TWC claims that LSSi has not been irreparably harmed because LSSi waited 10 months to file this lawsuit after learning (in September 2010) that TWC disputed its entitlement to TWC’s DA data. TWC also argues that LSSi filed this suit when (and where) it did not because it was suffering irreparable harm, but to capitalize on its victory (now on appeal) in the Comcast litigation in the Northern District of Georgia.

III. Discussion

A. Standard for a Preliminary Injunction

A preliminary injunction is an extraordinary remedy never awarded as of right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.

Salinger v.Colting, 607 F.3d 68, 79 (2d Cir.2010) (quoting Winter v. Natural Res. Def. Council, 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)). A plaintiff seeking a preliminary injunction must normally “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Psihoyos v. John Wiley & Sons, Inc., 2011 WL 4634172, at *1, 2011 U.S. Dist LEXIS 115835, at *3 (S.D.N.Y. Oct. 4, 2011) (citing Winter, 555 U.S. at 20, 129 S.Ct. 365 (2008)); see also Reckitt Benckiser Inc. v. Motomco Ltd., 760 F.Supp.2d 446, 451-52 (S.D.N.Y.2011).

LSSi’s burden in this case is heightened, because it seeks an “injunction that alters the status quo by commanding some positive act, as opposed to a prohibitory injunction seeking only to maintain the status quo.” Cacchillo v. Insmed, Inc., 638 F.3d 401, 406 (2d Cir.2011) (citing Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n. 4 (2d Cir.2010)). Under these circumstances, an injunction may “issue only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief.” Cacchillo, 638 F.3d at 406 (citing Citigroup Global Mkts., Inc., 598 F.3d at 35 n. 4).

LSSi asserts that, given the nature of its claims, it need not show irreparable harm to gain injunctive relief. LSSi cites Mical Commc’ns, Inc. v. Sprint Telemedia, Inc., 1 F.3d 1031 (10th Cir.1993) for the proposition that a plaintiff seeking a preliminary injunction premised on a statute which authorizes injunctive relief need not demonstrate irreparable harm. LSSi Supp. Br. 23-24; see also Bellingrath-Morse Found. v. Bellsouth Telecomm., Inc., 884 F.Supp. 472, 476 (S.D.Ala.1995). However, as LSSi acknowledges, the Second Circuit has not so held. See LSSi Supp. Br. 24 n. 14. Rather, the Second Circuit has repeatedly emphasized that “[a] showing of irreparable harm is ‘the single most important prerequisite for the issuance of a preliminary injunction.’ ” Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir.2009) (quoting Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.1999)); see also Singas Famous Pizza Brands Corp. v. New York Adver. LLC, 468 Fed.Appx. 43, 45 (2d Cir.2012) (slip op.) (summ.order); Bisnews AFE (Thail.) Ltd. v. Aspen Research Group Ltd., 437 Fed.Appx. 57, 58 (2d Cir.2011) (summ.order); Borey v. Nat'l Union Fire Insur. Co., 934 F.2d 30, 34 (2d Cir.1991); King v. Pine Plains Cent. Sch. Dist., 923 F.Supp. 541, 547 (S.D.N.Y.1996). In light of this authority, and the absence of any contrary holding in this Circuit, the Court declines to relieve LSSi of the burden of showing irreparable harm.

The Second Circuit has “explained that ‘[t]o satisfy the irreparable harm requirement, [pjlaintiffs must demonstrate that absent a preliminary injunction they will suffer an injury that is neither remote nor speculative, but actual and imminent, and one that cannot be remedied if a court waits until the end of trial to resolve the harm.’ ” Faiveley Transp., 559 F.3d at 118 (quoting Grand River Enter. Six Nations, Ltd. v. Pryor, 481 F.3d 60, 66 (2d Cir.2007)). Thus, “‘[wjhere there is an adequate remedy at law, such as an award of money damages, injunctions are unavailable except in extraordinary circumstances.’” Faiveley Transp., 559 F.3d at 118 (quoting Moore v. Consol. Edison Co. of N.Y., 409 F.3d 506, 510 (2d Cir.2005)).

B. The LSSi v. Comcast Decision

At the outset, the Court addresses LSSi’s reliance on the Comcast decision. In its briefs and at argument, LSSi repeatedly cited that decision as, purportedly, establishing that LSSi is a “competing provider of telephone exchange service” entitled to the DA data of competing LECs under each of the three § 251(b)(3) categories. See, e.g., LSSi Supp. Br. 1, 4, 17, 21; LSSi Supp. Rep. 2, 1115. The Court disagrees.

As LSSi correctly notes, the decision in Comcast begins by stating:

LSSi is a certificated local exchange carrier and a provider of directory assistance services, call completion services, data aggregation services, and other services to telecommunications carriers throughout the United States [Doc. No. 1, page 2]. Comcast is a local exchange carrier as defined in the Communications Act of 1934, as amended, 47 U.S.C. § 153 [Id page 3],

785 F.Supp.2d at 1358. However, on examination, the authority cited in Comcast as the basis for describing LSSi as such— “Doc. No. 1, page 2” — is nothing more than LSSi’s Complaint in that case. LSSi’s factual characterization of itself in a Complaint in another lawsuit — let alone its claim in that lawsuit as to how the legal terms of art found in § 251(b)(3) apply to it — does not merit any deference, and certainly not in this litigation. Cf. Am. Cancer Soc’y v. Cook, 675 F.3d 524, 529 (5th Cir.2012) (slip op.) (“[A] complaint ‘is not evidence of the charges contained in it.’ ”) (quoting Scholes v. Lehmann, 56 F.3d 750, 762 (7th Cir.1995)); see also FDIC v. Deglau, 207 F.3d 153, 172 (3d Cir.2000); SEC v. Citigroup Global Mkts. Inc., 827 F.Supp.2d 328, 333 (S.D.N.Y.2011) (“As a matter of law, an allegation that is neither admitted nor denied is simply that, an allegation. It has no evidentiary value and no collateral estoppel effect.”); Tavarez v. Naugatuck Bd. of Educ., No. 08-cv-725, 2012 WL 1435284, at *5, 2012 U.S. Dist. LEXIS 57757, at *14 (D.Conn. Apr. 25, 2012) (“[Ajllegations in a complaint are not evidence”); Welch-Rubin v. Sandals Corp., No. 03-cv-481, 2004 WL 2472280, at *1-2, 2004 U.S. Dist. LEXIS 22112, at *4 (D.Conn. Oct. 20, 2004) (same).

Moreover, based on this Court’s review of the record in Comcast, it is clear that LSSi’s status under § 251(b)(3) was simply not at issue in that case. The Comcast decision arose from LSSi’s application for a temporary restraining order. The district court resolved that application in an accelerated proceeding, without discovery being taken. In deciding on LSSi’s motion, the District Court took as true the allegations in LSSi’s Complaint. Comcast, for its part, opposed LSSi’s TRO application on other grounds. As to the likelihood of success on the merits, Comcast argued that it was not providing discriminatory access to its listing data; it also disputed that LSSi stood to suffer irreparable harm, that the harm to LSSi outweighed the injury to itself from granting a TRO, and that a TRO was in the public interest. 785 F.Supp.2d at 1360-61. For reasons that are not apparent on the record, however, Comcast either did not, or could not, challenge, on LSSi’s TRO application, LSSi’s claim of entitlement to nondiscriminatory access to its data under § 251(b)(3). Nor did the district court raise that issue sua sponte.

Under these circumstances, the district court’s characterization of LSSi in the Comcast decision, which appears to have been an artifact of the expedited manner in which LSSi’s request for emergency relief in that case was litigated and resolved, simply is not persuasive authority and does not merit deference here.

By contrast, in this ease, TWC promptly alerted this Court that, as a factual matter, it vigorously disputed LSSi’s claim of entitlement under § 251(b)(3) to its DA data. From the outset, TWC argued here that LSSi is not a “competing provider of telephone exchange service,” as defined in § 251(b)(3), but merely a “data aggregator” and seller that lacks data access rights under § 251(b)(3). See TWC’s Orig. Opp. to LSSi’s Mot. for Prelim. Inj. (Dkt. 12 at 1-2, 14-23). It was to resolve this potentially decisive area of dispute that this Court put in place a plan for expedited discovery.

C. LSSi’s Claim of Entitlement to TWC’s DA Listing Data Under § 251(b)(3)

The threshold issue in this case is whether LSSi has established that it fits within any of the three categories under § 251(b)(3) that would entitle it to nondiscriminatory access to TWC’s DA listings. The Court addresses these categories in turn.

1. Is LSSi a “Competing Local Exchange Carrier”?

LSSi claims, first, to be a competing local exchange carrier of TWC’s. See Compl. ¶ 8; LSSi Supp. Br. 3, 18-19. A LEC is required to give competing LECs non-discriminatory access to its DA data. This means that the providing LEC must both treat all such competitors equally and “provide such competing providers with access to [directory assistance data] equal to that which the LECs provide to themselves.” 2005 Order, 20 FCC Rcd.9334, at ¶ 2; see also 2001 Order, 16 FCC Red. 2736, at ¶ 14; In the Matters of Implementation of the Local Competition Provisions of the Telecommunications Act of 1996; Interconnection Between Local Exchange Carriers and Commercial Mobile Radio Service Providers; Area Code Relief Plan for Dallas and Houston, Ordered by the Public Utility Commission of Texas; Administration of the North American Numbering Plan; Proposed 708 Relief Plan and 630 Numbering Plan Area Code by Ameritech-Illinois (the “1996 Order”), 11 FCC Red. 19392, at ¶ 12 (1996).

The Court first considers whether LSSi qualifies as a LEC, and if so, where. LSSi claims to be certified as a LEC in three states — Oregon, Utah, and Washington. See Compl. ¶¶ 8,14; Oldach 2d Supp. Decl. ¶ 3; Dkt. 19-1 Ex. A. LSSi has substantiated this claim by producing certificates issued by the appropriate state commissions in these states attesting to its certification there. Oldach Supp. Decl., Ex. A.

TWC counters that LSSi does not actually provide such services in these three states, but merely holds regulatory authority to do so. TWC Supp. Br. 10, 13. This claim appears to be correct. LSSi’s website describes itself as a “non-carrier data provider,” and “the only Tier 1 supplier of contact information sourced directly from carriers that is NOT a telecommunication provider.” See http://www.lssidata.com/ data-services.html; http://www.lssidata. com/whylssidata/quic.html (both last visited April 13, 2012) (italics added, capitalization in original). And LSSi has not claimed in this litigation actually to function as a LEC in these states.

However, LSSi’s lack of actual provision of exchange service as a LEC is not determinative of the issue here. The FCC has explained that under § 251(b)(3):

[a]ny entity that is certified as a competing LEC by the appropriate state commission is presumptively a competing provider of telephone exchange service .... If an incumbent LEC believes a particular certified CLEC is not actually providing or planning to provide telephone exchange service to consumers, the incumbent may challenge the certification before the appropriate state commission. However, as long as the state certification remains in effect, the incumbent must provide the CLEC with nondiscriminatory database access and the other resources to which a CLEC is entitled under section 251.

2001 Order, 16 FCC Red. 2736, at ¶ 14. TWC concedes that it has not challenged LSSi’s LEC status in any of the three states in. which LSSi is certified. Accordingly, the Court finds that LSSi is, for purposes of this litigation, a LEC in Oregon, Utah, and Washington.

The Court next turns to the issue of whether LSSi is a competing LEC of TWC’s. TWC represents, and LSSi does not dispute, that TWC does not offer any services in Oregon or Utah. TWC Supp. Br. 13 n. 7. LSSi is, therefore, not a competing LEC of TWC’s in those two states.

As to Washington State, TWC acknowledges that it offers Voice over Internet Protocol (“VoIP”) services in that state. However, TWC argues that such services do not make it a LEC. The First Circuit has explained the difference between these services:

VoIP refers to calls routed in whole or in part over the internet rather than over traditional telephone lines. VoIP users can place telephone calls from their computers to, and receive calls from, other computers or regular telephones, or can place calls through VoIPconnected telephones. Although the calls are routed through the internet for the VoIP user, calls going to or originating from traditional telephone users are switched through local exchange carriers, creating a substantial set of interconnection issues.

Centennial Puerto Rico License Corp. v. Telecomms. Reg. Bd. of Puerto Rico, 634 F.3d 17, 24 (1st Cir.2011).

Whether providing VoIP services renders an entity a LEC, and therefore subject to the requirements that the TCA imposes on LECs, presents a complex, important, and unresolved question. A LEC is defined, for purposes of the Act, as an entity “engaged in the provision of telephone exchange service or exchange access.” 47 U.S.C. § 153(32). “Telephone exchange service,” in turn, is defined as:

(A) service within a telephone exchange, or within a connected system of telephone exchanges within the same exchange area operated to furnish to subscribers intercommunicating service of the character ordinarily furnished by a single exchange, and which is covered by the exchange service charge, or (B) comparable service provided through a system of switches, transmission equipment, or other facilities (or combination thereof) by which a subscriber can originate and terminate a telecommunications service.

47 U.S.C. § 153(54).

The FCC has initiated a rulemaking process aimed at the classification of VoIP services and resolving whether VoIP services allow subscribers “to originate and terminate telecommunications service[s].” See IP-Enabled Services, Notice of Proposed Rulemaking, 19 FCC Red. 4863, at ¶¶ 42-44 (2004) (seeking public comment on the issues of “Which classes of IP-enabled services, if any, are ‘telecommunications services’ under the Act? Which, if any, are ‘information services’?”). The resolution of that issue will augur “significantly for VoIP’s future,” because “[i]f classified as a telecommunications service, VoIP would be subject to mandatory Title II common carrier regulations ... but as an information service it would not.” Vonage Holdings Corp. v. FCC, 489 F.3d 1232, 1235 (D.C.Cir.2007).

The FCC has several times deferred resolving this question with finality, such that the state of play today is that the FCC has “not yet classified interconnected VoIP services as ‘telecommunications services’ ... under the definitions of the Act.” In the Matter of Universal Service Contribution Methodology, 21 FCC Red. 7518, at ¶ 35 (2006); see also In the Matter of Connect America Fund, 26 FCC Red. 17663, at ¶ 718 (2011) (“the Commission has not classified interconnected VoIP services as ‘telecommunications services’ or ‘information services’ ”); In re Sch. & Libraries Universal Serv. Support Mechanism, 25 FCC Red. 6562, at ¶ 12 (2009); IP-Enabled Services, Notice of Proposed Rulemaking, 19 FCC Red. 4863, at ¶¶ 43-44 (2004).

Because the FCC has repeatedly declined to hold that providing VoIP services renders an entity a LEC, the Court also declines to so hold. The FCC may yet so hold (or Congress may so legislate). But it is not for this Court to encroach on areas of regulatory expertise — or to short-circuit an ongoing rulemaking process aimed at resolving this question — by prematurely declaring the Act’s carrier restrictions applicable to VoIP providers such as TWC. As the First Circuit noted in declining to interject itself into the “classification and regulation of VoIP traffic”:

VoIP presents a number of sensitive technical and policy considerations better left to the FCC and state commissions. Some VoIP calls originate on a computer and terminate at a telephone, or vice versa. Other VoIP calls, however, both originate and terminate on an actual telephone; for this type of call, the internet provides the medium of transmission on at least one end of the conversation. There are obvious differences between these types of calls. The FCC may choose to treat each configuration in a different way; conversely, it may choose to treat them in the same way, or not to regulate them at all.

Centennial Puerto Rico License Corp., 634 F.3d at 38. This Court is also not the proper forum to evaluate these “sensitive technical and policy considerations.” Accordingly, based on the FCC’s treatment of the VoIP issue to date, the Court finds that TWC does not presently function as a LEC in Washington, and, therefore, that LSSi is not likely to prevail on its claim to be a competing LEC of TWC’s in Washington and thereby entitled to TWC’s local DA data there.

TWC separately argues that, even if an entity’s provision of VoIP services could make it a LEC, the particular manner in which it renders such services in Washington precludes a finding that it is a LEC there. TWC represents that it still utilizes Sprint, a LEC in Washington, to connect its VoIP customers there to other customers, much as it had used Sprint nationally for that purpose until 2010. Accordingly, TWC argues, to the extent LSSi could be said to be competing with a LEC in Washington, that LEC would be Sprint, not TWC. TWC Supp. Br. 13-14; see also TWC Interrog. Resp. 18-19 (listing all markets where TWC or an affiliate serves as a LEC; Washington not listed). LSSi has not disputed TWC’s claim as to the roles played in Washington by TWC and Sprint. Nor has LSSi addressed TWC’s legal argument that if either entity serves as a LEC in Washington, it is Sprint, not TWC. The Court thus is constrained to conclude, on LSSi’s motion for a preliminary injunction, that LSSi has failed to carry its burden as to this point, i.e., to show that — even assuming that the provision of VoIP services were subject to § 251(b)(3) — TWC’s activities in Washington would make it a LEC.

In a final argument on this point, LSSi argues that two LECs need not provide services in the same geographic market in order for one to qualify as a competing LEC entitled to nondiscriminatory access to the other’s directory assistance listing data. LSSi Supp. Rep. 2-3. For this argument, LSSi relies on 47 C.F.R. § 51.217(a)(1), which defines a “competing provider” as a “competing provider of telephone exchange service ... that seeks nondiscriminatory access from a local exchange carrier (LEC) in that LEC’s service area.” LSSi argues that § 51.217(a)(1) means that a LEC in any market is a competing provider by virtue of merely seeking nondiscriminatory access to another LEC’s data. Under this reading, as LSSi acknowledged at argument, its status as a LEC in Oregon alone would entitle it to access to the DA data for TWC’s New York subscribers, and indeed for all subscribers in any state, and a LEC certified in Alaska alone would be entitled to the DA data of a LEC in Maine, and indeed of all LECs, simply by virtue of seeking such data. See Hg. Tr. 128 (arguing that a CLEC “in Alaska only” is “entitled to the local listings from every CLEC in the United States as to all 50 states”). LSSi has not provided any other authority for this expansive claim, whether in the form of legislative history, FCC guidance, or case law.

The Court rejects LSSi’s argument. It is inconsistent with the plain language of § 251(b)(3)'. Section 251(b)(3) does not impose a duty on all LECs to share data with any other LEC, wherever situated. Rather, the statute imposes a duty on “local exchange carriers” to provide dialing parity to “competing providers of telephone exchange service.” LSSi’s construction of the statute would effectively read the terms “local” and “competing” out of the statute, because in no logical sense is a local exchange carrier in Oregon competing with a local exchange carrier in New York. See United States v. Aleynikov, 676 F.3d 71, 81 (2d Cir.2012) (slip op.) (“ ‘one of the most basic interpretive canons, [is] that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant’ ”) (quoting Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009)). The regulation on which LSSi relies — 47 C.F.R. § 51.217 — does not assist LSSi, either. Quite the contrary: § 51.217 incorporates both statutory terms, “competing” and “local,” in addressing the duty of LECs to make listing data available to competing providers of telephone exchange services. See also 2001 Order, 16 FCC Red. 2736, at ¶ 6 (requiring LECs to share directory assistance databases “with their competitors”) (emphasis added).

For the foregoing reasons, the Court concludes that LSSi has failed to carry its burden to demonstrate, let alone clearly, that it and TWC are “competing providers” of local exchange services in any of the three states in which LSSi is certified as a LEC.

2. Is LSSi an Agent Which Provides Directory Assistance Services on Behalf of a Competing Local Exchange Carrier?

LSSi also claims it is entitled to access TWC’s DA data on the ground that it is the agent of a competing LEC of TWC’s which provides directory assistance services to that CLEC. See LSSi Supp. Br. 18-19; see generally 2005 Order, 20 FCC Red. 9334, at ¶3; 2001 Order, 16 FCC Red. 2736, at ¶¶ 26-29.

a. The FCC’s guidance

In the 2001 and 2005 Orders, the FCC explained its basis for construing § 251(b)(3) to give data access rights to the agent of a competing LEC which provides directory assistance services to that CLEC.2001 Order, 16 FCC Red. 2736, at ¶2. The FCC reasoned that competing LECs “may not have the economies of scale to construct and maintain directory assistance platforms of their own.” Id. Rather, in many instances, such CLECs have contracted with directory assistance providers “to serve as [the CLEC’s] agents for the provision of directory assistance service.” Id. These agency contracts “significantly aid the development of competition in the local exchange market,” by sparing the CLEC from having to choose whether “to go to the substantial expense of maintaining their own database” or purchase it from the incumbent LEC. Id. at ¶27. Accordingly, “when a CLEC ... designates a [directory assistance] provider to act as their agent, that competing DA provider is entitled to nondiscriminatory access to the providing LECs’ local DA database.” Id. In such situations, the FCC has stated, it “expects] that a DA provider’s request for access will be accompanied by a letter or other documentation from the CLEC ... evidencing its intent that the DA provider receive database access so that it may fulfill its obligations to the CLEC.” Id.

b. Evidence presented by the parties

Notwithstanding the FCC’s admonition in the 2001 Order, LSSi did not accompany its demand to TWC for access with “a letter or other documentation” — or any other evidence — from a competing LEC “evidencing its intent that [LSSi] receive database access so that it may fulfill its obligations to the CLEC.” After LSSi’s May 2011 demand, TWC, citing the 2001 Order, requested such evidence from LSSi. See Brill Decl. ¶¶ 3, 6-7 (reproducing TWC counsel’s June 17, 2011 e-mail to LSSi). LSSi did not provide such proof. Nor did it even identify the name of the CLEC whom it claimed to serve as an agent. See id. ¶ 5; Hg. Tr. 160. Instead, LSSi brought this lawsuit.

The first time in this litigation that LSSi identified the LECs for which it claimed to serve as a directory assistance agent was in an August 15, 2011 declaration from its President, Oldach. See Oldach Supp. Decl. ¶¶ 4-5. That declaration was submitted in support of LSSi’s motion for a preliminary injunction. There, Oldach stated that “LSSi and its parent, VoltDelta Resources, LLC (“VoltDelta’), act together as agent to numerous LECs including, among others, AT & T, Verizon, Frontier, and ITC Delta-com.” Id. at ¶4. Attached to Oldach’s declaration were two letters. One, from Sharon Kendall, a senior contract manager at AT & T Services, Inc., and dated August 2, 2011, stated: “AT & T does have an agreement with VoltDelta to provide access to VoltDelta’s national database for the provisioning of directory assistance services”; the other, from Todd B. Lewis, assistant vice president for network communications at Frontier Communications Corp. and dated July 25, 2011, stated, in parallel language to Kendall’s: “Frontier does have an agreement with VoltDelta to provide access to VoltDelta’s national database for the provisioning of directory assistance by Frontier to its customers.” See id. Ex. B. LSSi did not submit, then or later, letters from personnel at either Verizon or ITC Deltacom.

After the case was transferred to this District, discovery commenced as to LSSi’s entitlement under § 251(b)(3), and TWC challenged the letters from AT & T and Frontier. TWC argued, inter alia, that the letters described the LECs’ relationships with Volt, not LSSi. See Dkt. 79 at 7-8. To address this shortcoming, LSSi submitted, along with its opening brief, another pair of parallel-worded letters from AT & T and Frontier. See Oldach 2d Supp. Decl. ¶¶ 3-4 & Exs. A, B. In those letters, dated January 20, 2012 and February 1, 2012, respectively, AT & T’s Kendall and Frontier’s Lewis each stated that “LSSi Data Corp. and VoltDelta Resources, LLC work interchangeably in providing the services described” in their earlier letters. Id. at Exs. A, B.

For its part, TWC, with its opposition brief, submitted materials responding to LSSi’s evidence. First, it offered a sworn declaration from Lewis, of Frontier. Lewis stated that Frontier “has performed a nationwide search, has located no contracts between Frontier and LSSi Data Corp.”; “Frontier has no formal agency agreement with LSSi or VoltDelta Resources, LCC”; and “[f]or its provision of directory assistance (‘DA’) services to its customers, Frontier provides its own operators and uses its own network facilities to connect DA calls.” Lewis Decl. ¶¶ 2-4. He added that “Frontier has a contractual relationship with VoltDelta whereby VoltDelta provides Frontier with access to DA data (the ‘Database Services’)”; “[f]or these Database services, Frontier is billed by Volt-Delta, not LSSi”; and “Frontier only makes payment to VoltDelta, not LSSi.” Id. at ¶¶ 6-8. Lewis also stated: “I do not have any specialized knowledge of the corporate relationship, if any, between Volt-Delta and LSSi. The statements made in my February 1, 2012 letter ... are based solely on information provided to me by [a Volt employee, Nelson WJ Cain.” Id. at ¶ 9. As to AT & T, TWC furnished a copy of AT & T’s written agreement, which is with Volt, and not LSSi, see TWC Br. 22 (citing Sherman Decl. Ex. 15), and a declaration attesting that LSSi’s document production revealed invoices from Volt to AT & T, but none from LSSi to AT & T. Sherman 2d Decl. ¶ 9.

Along with its reply brief, LSSi submitted its own declaration from Lewis, of Frontier, dated March 21, 2012. Lewis stated that, notwithstanding his earlier declaration, he is “aware that LSSi and VoltDelta do in fact act as the agents and contractors to Frontier for the purpose of obtaining directory assistance listing data from numerous carriers.” Lewis 2d Decl. ¶5. He added that, although Frontier is billed by VoltData, not LSSi, he did not “mean to imply that LSSi does not perform the services for which such billing and payments are made.” Id. ¶ 9. LSSi also submitted two declarations from an AT & T official, Ray Whitman, describing the functions and equipment that ‘VoltData and its subsidiaries” provide to AT & T in connection with AT & T’s provision of directory assistance. Whitman Decl. ¶ 4; Whitman 2d Decl. ¶ 6.

c. Analysis

Based on the evidence presented on its motion, LSSi’s claim to serve as a directory assistance agent of a LEC competing with TWC within the meaning of § 251(b)(3) turns, at this stage, on whether it is such an agent of AT & T or Frontier. As to the other LECs for whom LSSi has claimed to serve as such an agent, see supra note 20, LSSi simply did not come forward with any evidence to substantiate this claim. LSSi did not present the “letter or other documentation” recommended by the FCC. See Hg. Tr. 149 (statement of LSSi’s counsel, that he was unable to explain absence of a letter from the ITC, and that Verizon “could not get the mechanics in time for the filing. And I don’t know why.”). Nor did LSSi present business records that might have substantiated such an agency role. Such evidence might have included, for example, invoices, bills, or receipts for services provided by LSSi to the CLEC; agreements; or written communications between the parties. With the preliminary injunction record barren of any such proof, the Court cannot find in LSSi’s favor as to these entities, based on its uncorroborated say-so.

As to LSSi’s claim of an agency role with respect to AT & T and Frontier— which the parties have vigorously litigated — LSSi’s claim presents two issues. The first is whether it is LSSi or its parent, Volt, that serves as agent to that competing LEC. That issue matters because LSSi is the sole plaintiff in this case, and discovery on LSSi’s motion was premised solely on the claim that LSSi had a statutory right to TWC’s DA data. LSSi moved after the close of discovery to add Volt as a plaintiff, but the Court denied that motion, without prejudice to LSSi’s right to seek to add Volt after the motion is resolved. See supra note 10; Dkt. 79. The second issue is whether LSSi’s agency role with respect to each CLEC’s directory assistance function is of the nature contemplated by the FCC in the 2001 Order.

On the record before it, LSSi has not carried its burden as to either point. First, as to both AT & T and Frontier, the evidence is, at best for LSSi, ambiguous whether it is LSSi (as opposed to Volt) that serves as agent to the LEC. Volt is the only signatory to the agreements with AT & T and Frontier. See Lewis Decl. ¶ 6; Sherman Decl. Ex. 15; Hg. Tr. 16 (master agreement with AT & T is with Volt, not LSSi). It is, also, undisputed that Volt, and not LSSi, invoices AT & T and Frontier for the services it provides. See Sherman 2d Decl. ¶¶ 8-9; Lewis Decl. ¶¶ 6-7. The letters from AT & T’s Kendall and Frontier’s Lewis stating, in eonclusory fashion, that LSSi and Volt “work interchangeably” in providing them services are unconvincing. Neither letter explains why the writer has personal knowledge of that fact. Indeed, Lewis, in a later declaration, admitted the opposite: he attested that he lacks knowledge as to the “corporate relationship” of Volt and LSSi, and that a Volt employee, Nelson Cain, had been the source of his claim that LSSi and Volt “work interchangeably” with respect to Frontier. See Lewis Decl. ¶ 9. LSSi thus falls short of demonstrating, that, to the extent an agency relationship exists with AT & T and Frontier, LSSi (as opposed to Volt) is party to that relationship.

Far more important, LSSi has failed thus far to establish that the services that it (or Volt) provides to AT & T and Frontier are of the nature that the FCC contemplated in the 2001 Order. The letters from AT & T and Frontier state only that LSSi provides them access to its database in connection with those LECs’ own, provision of directory assistance services to their own subscribers. See Oldach 2d Supp. Decl. Exs. A, B; see also TWC Supp. Br. 22. In other words, the letters indicate that, under their respective arrangements with LSSi, both AT & T and Frontier remain responsible for providing directory assistance to their customers. The letters do not suggest that these two LECs have assigned, or delegated, to LSSi responsibility to provide directory assistance in their stead, or anything close. Rather, AT & T and Frontier appear to have retained LSSi to assist them in a far more limited capacity, largely involving selling customer listing data to these LECs.

The conclusion that LSSi provides support services only is reinforced, as to AT & T, by the two declarations that LSSi supplied from Whitman, along with its reply brief. He stated that AT & T “provides its own operators and uses its own network facilities to connect DA calls,” Whitman Decl. ¶ 4, but is assisted by “VoltDelta and its subsidiaries,” which provide “directory assistance listing services and products ... a database search engine, workstations, functions that enable interactive voice response, and directory assistance listing data.” Whitman 2d Decl. ¶ 6.

The Court has also reviewed the various agreements in the record between LSSi and a number of LECs. In none has the LEC delegated to LSSi the responsibility for actually providing directory assistance on its behalf, or come close to doing so.

Under the TCA and the FCC’s orders, the ancillary or support role that LSSi appears to play with regard to AT & T and Frontier’s provision of directory assistance is not enough to entitle LSSi to access TWC’s DA data. As the Court reads the FCC’s orders, the FCC construed § 251(b)(8) to require a LEC’s agent to play a more substantial role in connection with the LECs provision of directory assistance before the agent may claim a legal right of access on the LEC’s behalf to a competing LEC’s database. Specifically, the FCC has indicated, the competing LEC’s agent must itself be a “DA provider,” ie., provide directory assistance on the competing LEC’s behalf. See 2001 Order, 16 FCC Red. 2736, at ¶27. The FCC’s orders do not suggest that, where a competing LEC’s agent merely sells data to the CLEC, or leases it workstations or a search engine, but where the CLEC itself retains responsibility for providing directory assistance, the agent has a statutory right to access to the subscriber data of the CLECs competitors. Where the CLEC is providing directory assistance, it is the CLEC that the right to access its competitors’ data — and the CLEC itself that should be requesting it.

This reading is consistent with the statutory purposes that led the FCC to recognize a right for directory assistance agents of CLECs to access a providing LEC’s DA data. As the FCC acknowledged, some carriers do not have the economies of scale “to construct and maintain directory assistance platforms of their own.” Therefore, it is sensible, and “significantly aids the development of competition,” to afford the § 251(b)(3) data access right to the agents who supply the directory assistance platform on the carrier’s behalf. See 2001 Order, 16 FCC Red. 2736, at ¶ 27; In the Matters of Implementation of the Telecommunications Act of 1996, Third Report and Order, 14 FCC Red. 15550, at ¶ 183 (1999) (the “1999 Order”). There is less evident need to do so, however, where the carrier maintains its own directory assistance platform, and merely enlists other entities to help it out, in support roles. There is still less need to do so where — as remains the case in this litigation — the carrier has not submitted a “letter or other documentation ... evidencing its intent that [the agent] receive database access.” 2001 Order, 16 FCC Red. 2736, at ¶27.

To recognize a right of access for LSSi, on the facts at hand