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

Case 1:05-cv-01019-LMB

Document 23

Filed 09/18/2007

Page 1 of 3

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 has not yet been scheduled. -1-

Case 1:05-cv-01019-LMB

Document 23

Filed 09/18/2007

Page 2 of 3

On August 17, 2007, a decision was rendered in Comcation in favor of the United States. (Copy submitted herewith.) 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. Therefore, until the United States Court of Appeals for the Federal Circuit resolves this conflict, the parties believe that the suspension of proceedings in this case should be continued. In XO Communications v. United States, Fed Cl. No. 03-2754 T (2003), the parties have requested that further proceedings be suspended until the appeal in USA Choice is finalized. Judge Wheeler has not yet acted on the request. Respectfully submitted, September 18, 2007 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 September 18, 2007 Date s/G. Robson Stewart G. ROBSON STEWART Attorney of Record U.S. Department of Justice Tax Division Court of Federal Claims Section Post Office Box 26 -2-

Case 1:05-cv-01019-LMB

Document 23

Filed 09/18/2007

Page 3 of 3

Ben Franklin Post Office Washington, D.C. 20044 (202) 307-6493 RICHARD T. MORRISON Acting Assistant Attorney General DAVID GUSTAFSON Chief, Court of Federal Claims Section STEVEN I. FRAHM Assistant Chief September 18, 2007 Date s/Steven I. Frahm Of Counsel Attorneys for Defendant

-3-