XO Communications, Inc. v. MetroPCS, Inc.
XO Communications, Inc. v. MetroPCS, Inc.
Concurring Opinion
concurring.
I write separately to explain the basis of my agreement with the majority.
I believe that the term “rate” in the Addendum is a term of art used within the telecommunications industry to denote charges imposed by a particular carrier. As such, a “rate” would not include taxes, fees, or the BellSouth transit charges at issue. Interpreting “rate” as specific to a carrier would also harmonize the agreement before us. So interpreted, the term as used in the Addendum could be read consistently with the provisions allowing for the pass through of third party fees such as taxes and other carrier’s charges instead of overruling them.
Although my interpretation is a plausible, and, I think, more compelling one, unfortunately for XO it is not the only one that can be drawn from this agreement. The agreement appears to use the terms “rates” and “fees” interchangeably; in fact, the multiple references to components
As the drafter of the agreement, XO was in a position to define the term “rate,” or otherwise make its meaning clear. Its failure to do so creates an ambiguity that renders resort to parol evidence appropriate.
Opinion of the Court
XO Communications, Inc. appeals the summary judgment entered in favor of MetroPCS, Inc. We affirm.
The material facts are not in dispute, and we need only briefly recite them in this opinion. XO is a telecommunications carrier. MetroPCS provides wireless telephone service in the Miami, Florida, area. After negotiations, XO and MetroPCS entered into two separate (but identical) one-year contracts for “Dedicated IntraLATA DS-3 Voice Service for Calls Originating and Terminating Within LATA 460 (Miami, Florida).” J.A. 1286. Generally, under these contracts, MetroPCS’ customers used MetroPCS equipment to make telephone calls which MetroPCS then routed to XO’s network for completion. XO provided this service to MetroPCS and billed MetroPCS periodically.
The parties’ dispute involves approximately $350,000 that XO contends MetroPCS owes as a result of XO’s delivery of MetroPCS calls to BellSouth for completion. BellSouth assessed XO for this amount. MetroPCS refused to pay XO, contending that it is not liable because the contracts unambiguously provide that it was only obligated to pay XO a flat monthly rate of $11,200 (per contract). MetroPCS specifically relies on the addendum to the contracts, which sets the “rates” for the specified service as being a monthly recurring charge of $11,200 with no nonrecurring charge. J.A. 1286.
On appeal, XO reiterates its contention that the contracts unambiguously require MetroPCS to pay the BellSouth charges. At oral argument, XO’s counsel readily conceded that unless we conclude that the contracts are unambiguous in XO’s favor on this point, then MetroPCS must prevail in this litigation. In making this concession, XO’s counsel specifically agreed that if resort to parol evidence is necessary because of an ambiguity in the contracts, then MetroPCS must prevail.
Having carefully considered the parties’ arguments, we agree with the district court that the contracts do not unambiguously support XO’s position. Instead, we believe that the contracts are, at best, ambiguous concerning MetroPCS’ payment obligation. Given this ambiguity, and in light of XO’s concession and our review of the record, we conclude that the undisputed parol evidence establishes as a matter of law that MetroPCS was only obligated to pay a monthly flat rate of $11,200 per contract and, therefore, is not hable for the BellSouth charges. Accordingly, we affirm the summary judgment.
AFFIRMED
. We review de novo an award of summary judgment. Chawla v. Transamerica Occidental Life Ins. Co., 440 F.3d 639, 644 (4th Cir. 2006).
. Ibanez, the XO Vice-President who negotiated the contracts with MetroPCS, admitted during discovery that he had represented that MetroPCS would not incur any usage charges under the contracts.
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