Free Joint Status Report - District Court of Federal Claims - federal

Case 1:05-cv-01019-LMB

Document 25

Filed 01/22/2008

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ______________ No. 05-1019 T (JUDGE BASKIR) FASTNET CORPORATION, ET AL., Plaintiff v. THE UNITED STATES, Defendant ______________ SUPPLEMENTAL JOINT STATUS REPORT ______________ Pursuant to the Court's Order, filed on August 22, 2006, in the above-referenced matter, the parties submit the following status report. This case currently is suspended pending the outcome of litigation in XO Communications v. United States, Fed. Cl. No. 03-2754 T (2003); Comcation v. United States, Fed Cl. No. 05-515 T (2005); and USA Choice Internet Serv., LLC v. United States, 73 Fed Cl. 780 (2006), appeal pending, No. 07-5077 (Fed. Cir. Feb. 8, 2007). In USA Choice, Judge Lettow awarded Plaintiff judgment with respect to incoming-only PRI channels, DCS and BRA channels, and private lines associated with specific telephone numbers. Final Judgment was entered for Plaintiff on December 15, 2006. The case was docketed at the United States Court of Appeals for the Federal Circuit on February 28, 2007. The docket number is 2007-5077. The initial brief of the United States was filed on June 13, 2007, Plaintiff's brief was filed on August 27, 2007, and the reply brief of the United States was filed on September 13, 2007. Oral argument was held on December 7, 2007, and the parties are waiting -1-

Case 1:05-cv-01019-LMB

Document 25

Filed 01/22/2008

Page 2 of 3

for the decision of the Federal Circuit. In XO Communications v. United States, Fed Cl. No. 03-2754 T (2003), the parties requested that further proceedings be suspended until the appeal in USA Choice is finalized. On September 25, 2007, Judge Wheeler agreed to suspend proceedings until USA Choice is resolved. On August 17, 2007, a decision was rendered in Comcation in favor of the United States. The court held that the telephone service utilized by Comcation, an Internet service provider, to connect its customers to its network constituted taxable local service irrespective of whether the telephone service was configured as incoming-only service and the service did not qualify as a tax exempt private communication service. Accordingly, the holding in Comcation is contrary to the decision in USA Choice, which held that similar incoming-only telephone service was not taxable local telephone service. On October 3, 2007, plaintiff filed a notice of appeal of the Comcation decision in the United States Court of Appeals for the Federal Circuit. The docket number is 2008-5001. Therefore, until the Federal Circuit resolves the conflict between USA Choice and Comcation, the suspension of proceedings in this case should be continued. Respectfully submitted, January 22, 2008 Date s/Anthony C. Gulotta ANTHONY C. GULOTTA Anderson & Gulotta, P.C. 1110 North Mountain Road Harrisburg, PA 17112 (717) 635-7145 Fax (717) 541-5434 [email protected] Attorney for Plaintiff January 22, 2008 Date s/G. Robson Stewart G. ROBSON STEWART Attorney of Record -2-

Case 1:05-cv-01019-LMB

Document 25

Filed 01/22/2008

Page 3 of 3

U.S. Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 Ben Franklin Post Office Washington, D.C. 20044 (202) 307-6493 NATHAN J. HOCHMAN Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief January 22, 2008 Date s/Steven I. Frahm Of Counsel Attorneys for Defendant

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