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                           Before the
                FEDERAL COMMUNICATIONS COMMISSION
                      Washington, DC  20554

                             
)                               )
Mountain Communications, Inc.,  )
)                               )
                               )
    Complainant,               )        File No. EB-00-MD-017
                               )
         v.                    )
Qwest Communications            )
International, Inc.,            )

    Defendant.               



                  MEMORANDUM OPINION AND ORDER

   Adopted: January 31, 2002        Released: February 4, 2002


By the Chief, Enforcement Bureau:

I.   INTRODUCTION

          In this Memorandum Opinion and Order, we deny the 
above-captioned formal complaint that Mountain Communications, 
Inc. (``Mountain'') filed against Qwest Communications 
International, Inc. (``Qwest'', formerly U S West Communications, 
Inc.) pursuant to section 208 of the Communications Act of 1934, 
as amended (the ``Act'').1  Mountain, a Commercial Mobile Radio 
Service (``CMRS'') paging provider, alleges that Qwest violated 
sections 51.703(b) and 51.709(b) of the Commission's rules2 by 
charging Mountain for transporting certain traffic.3  Based on 
the principles established in the TSR Wireless Order4 and the 
Texcom Order,5 we deny Mountain's claims.  In short, we find that 
Qwest may lawfully charge Mountain for costs associated with 
``transiting traffic'' and for facilities used to provide ``wide 
area calling.''

II.  BACKGROUND 

     2.   Mountain offers one-way paging services to its 
customers in the state of Colorado.6  Qwest is the incumbent 
local exchange carrier (``LEC'') offering local telephone service 
to the public in Colorado.7  Qwest serves as the interconnecting 
LEC for Mountain's paging facilities and transports calls from 
the public switched network to Mountain's network.8  Qwest has 
been providing such interconnection services to Mountain since at 
least November 1996.9

     3.   The services that Mountain obtains from Qwest include a 
``wide area calling'' service.10  With respect to service 
provided to paging carriers, wide area calling refers generally 
to an arrangement that allows a paging carrier to subsidize the 
cost of calls from a LEC's customers to the paging carrier's 
customers, when completing such calls requires the LEC to 
transport them from one of its local calling areas to another of 
its local calling areas.11  One example of a wide area calling 
arrangement is known as ``reverse billing'' or ``reverse toll,'' 
in which a LEC agrees with a paging carrier not to assess toll 
charges on calls from the LEC's end users to the paging carrier's 
end users, in exchange for the paging carrier paying the LEC a 
per-minute fee to recover the LEC's toll carriage costs.12  The 
wide area calling arrangement at issue here involves Qwest's 
provision of dedicated toll facilities to Mountain that connect 
the Direct Inward Dialing (``DID'')13 numbers that Mountain has 
obtained in each of Qwest's local calling areas to Mountain's 
interconnection point in another Qwest local calling area.  This 
enables the calling customer in each of Qwest's local calling 
areas to dial a local number to reach a Mountain subscriber and 
avoid incurring toll charges.14 

     4.   As part of the interconnection services it provided to 
Mountain beginning in 1996, Qwest transported calls made by its 
customers to Mountain's customers. 15  Qwest also transported 
``transiting traffic'' to Mountain, i.e., calls to Mountain's 
customers originating from customers of carriers other than 
Qwest.16  

     5.   Beginning in 1998, Mountain requested that Qwest cease 
assessing Mountain any charges associated with the delivery of 
traffic to Mountain's network and issue refunds for all such 
charges paid by Mountain since August 1996.17  Over the course of 
the next two years, the parties attempted to resolve their 
dispute regarding the charges at issue, but were unsuccessful.18   
Mountain then filed the instant complaint. 

     6.   Mountain's complaint alleges two claims that we must 
address in this order: 
1) that Qwest violated sections 51.703(b) and 51.709(b) of the 
Commission's rules by charging Mountain for the transport of 
transiting traffic to Mountain's network;19 and 2) that Qwest 
violated sections 51.703(b) and 51.709(b) of the Commission's 
rules by charging Mountain for the facilities used to transport 
certain Qwest-originated traffic to Mountain's network.20  For 
the reasons discussed below, we deny both claims.
  
III.      DISCUSSION

     A.   The Commission Has Jurisdiction to Adjudicate 
          Mountain's Complaint

     7.   Qwest asserts that we lack jurisdiction to adjudicate 
disputes concerning sections 51.703(b) and 51.709(b) of the 
Commission's rules where, as here, the disputing parties lack an 
interconnection agreement under sections 251 and 252 of the 
Act.21  The Commission has already rejected this argument.22   
Consequently, we do so here, as well, and rule that we have 
jurisdiction to adjudicate Mountain's claims.

     B.   Qwest May Lawfully Charge Mountain for Transiting 
          Traffic.

     8.   Section 51.703(b) of the Commission's rules provides 
that ``[a] LEC may not assess charges on any other 
telecommunications carrier [including a paging carrier] for local 
telecommunications traffic that originates on the LEC's 
network.''23  Moreover, section 51.709(b) of the Commission's 
rules requires a LEC to charge a connecting carrier for dedicated 
transmission facilities used to carry traffic between the two 
carriers based solely on the amount of traffic that the 
connecting carrier sends back to the LEC.24  In the TSR Wireless 
Order and the Texcom Order, the Commission construed these rules 
to mean that an interconnecting LEC may charge a paging carrier 
for the transport of transiting traffic.25

     9.   Mountain contends that Qwest violates sections 
51.703(b) and 51.709(b) of the Commission's rules by charging 
Mountain for the transport of transiting traffic.26  In 
particular, Mountain argues that: 1) the TSR Wireless Order 
misconstrued section 51.703(b), because the Commission's rules do 
not allow LECs to charge for transiting traffic;27 2) we should 
consider all traffic that terminates on Mountain's network to 
have originated on Qwest's network;28 and 3) permitting Qwest to 
charge for transiting traffic would allow it to recover its costs 
twice, because Qwest already receives adequate compensation for 
carrying this traffic from other sources, such as long distance 
carriers and other interconnecting LECs.29 

     10.  Mountain's arguments mirror those that the Commission 
recently rejected in the Texcom case.30 Because Mountain raises 
no issues of law or fact that were not fully considered in 
Texcom, we apply Texcom's reasoning here and reject Mountain's 
arguments regarding Qwest's treatment of transiting traffic.  
Accordingly, we conclude that Qwest does not violate sections 
51.703(b) and 51.709(b) of the Commission's rules by assessing 
Mountain charges associated with transiting traffic.31
     C.   Qwest May Lawfully Charge Mountain for Wide Area 
          Calling.

     11.  As discussed earlier, section 51.703(b) of the 
Commission's rules bars a LEC from charging for the delivery of 
traffic that originates on the LEC's own network.32  In the TSR 
Wireless Order, the Commission found that, pursuant to section 
51.703(b), a LEC may not charge CMRS providers for the delivery 
of LEC-originated traffic that originates and terminates within 
the same Major Trading Area (``MTA''), as this constituted local 
traffic under the Commission's rules.33  The Commission noted, 
however, that nothing prevents a LEC from charging its end users 
for intraLATA toll calls that originate on its network and 
terminate over facilities that are situated entirely within a 
single MTA.34  Thus, if a LEC end user makes a call from one 
local calling area to a paging customer whose number is assigned 
to a central office in another local calling area of the LEC, the 
LEC may assess the caller the appropriate toll set forth in its 
local tariff, even if both LEC calling areas are within the same 
MTA.  Importantly, however, the Commission acknowledged in the 
TSR Wireless Order the possibility that a paging carrier might 
want to avoid having callers to its customers pay such toll 
charges.  Thus, the Commission concluded that section 51.703(b) 
does not preclude a CMRS carrier and a LEC from entering into 
wide area calling or reverse billing arrangements where the CMRS 
carrier can ``buy down'' the cost of such calls to make it appear 
to the LECs' end users that they have made a local call rather 
than a toll call.35  Moreover, the Commission concluded that its 
rules do not prohibit a LEC from charging the paging carriers for 
those services.36  The Commission's conclusion that section 
51.703(b) allows a LEC to charge for wide area calling or similar 
services was based on the fact that wide area calling services 
are not necessary for interconnection or for the provision of 
service by a paging provider to its customers, as well as the 
recognition that the Commission's rules do not require LECs to 
offer such services at all.37

     12.  As noted above, the wide area calling arrangement at 
issue here involves Qwest's provision of dedicated toll 
facilities that connect Mountain's DID numbers in each of Qwest's 
local calling areas to Mountain's interconnection point in 
another Qwest local calling area.  Thus, the calling customer in 
each of the local calling areas calls a local number to reach a 
Mountain subscriber and avoids incurring toll charges.38  
Mountain contends that Qwest violates the Commission's rules by 
charging Mountain for the dedicated toll facilities that Qwest 
uses to transport calls made to Mountain's interconnection point 
from outside of the Qwest local calling area where Mountain's 
interconnection point resides.39  Mountain argues that, because a 
CMRS carrier's local calling area is an MTA, Qwest is not 
permitted to charge Mountain for facilities used by Qwest to 
deliver calls from anywhere within the MTA to Mountain's 
interconnection point.40  Mountain similarly maintains that Qwest 
cannot charge it for facilities Qwest uses to deliver to 
Mountain's interconnection point calls made to DID numbers that 
are outside the Qwest-defined local calling area but within the 
same MTA, and the same LATA, because those facilities are used to 
deliver Qwest-originated traffic to Mountain.41  

     13.  Based on the Commission's analysis of wide area calling 
arrangements in TSR Wireless, we agree with Qwest that the 
provision of dedicated toll facilities by Qwest to enable 
Mountain to offer its customers a local number in several local 
calling areas is an optional service that is not necessary for 
interconnection.42  We note that Mountain does not dispute that 
this service is not necessary for interconnection.43  Moreover, 
although Qwest concedes that it must allow Mountain to 
interconnect without charge at any point within an MTA that is 
within the LATA,44 Qwest disagrees that it must transport, free 
of charge, all calls made to Mountain within the MTA to 
Mountain's interconnection point.  Qwest points out that, for 
those calls made by its end users in local calling areas outside 
the local calling area where Mountain's interconnection point 
resides, Qwest would ordinarily assess toll charges to those end 
users, pursuant to Qwest's General Exchange tariff in Colorado.45  
We agree with Qwest that, pursuant to the TSR Wireless Order, if 
Mountain wants to avoid having callers to its customers pay such 
charges to access Mountain's network, it may enter into a wide 
area calling arrangement with Qwest.  Mountain has effectively 
entered into such an arrangement with Qwest by requesting 
dedicated toll facilities to transport calls made to DID numbers 
provided to Mountain's customers, free of charge to Qwest's 
customers.  We, therefore, conclude that Qwest is not prohibited 
from assessing Mountain charges for such services.    

IV.  ORDERING CLAUSES

     14.  Accordingly, IT IS ORDERED, pursuant to sections 4(i), 
4(j), and 208 of the Communications Act of 1934, as amended, 47 
U.S.C.  154(i), 154(j), 208, and sections 51.703(b) and 
51.709(b) of the Commission's rules, 47 C.F.R. 51.703(b) and 
51.709(b), that Mountain's Complaint IS DENIED and that this 
proceeding IS TERMINATED as of the Release Date of this Order.       

     15.  IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 
and 208 of the Communications Act of 1934, as amended, 47 U.S.C. 
 154(i), 154(j), 208, that Qwest's Motion to Dismiss IS DENIED 
as moot. 

                              FEDERAL COMMUNICATIONS COMMISSION



                              David H. Solomon
                              Chief, Enforcement Bureau
_________________________

1    47 U.S.C.  208.  Qwest is the successor to U S WEST 
Communications, Inc., following the companies' June 30, 2000 
merger.  See Qwest Communications International, Inc. and U S 
WEST, Inc., Applications for Transfer of Control of Domestic and 
International Sections 214 and 310 Authorizations and Application 
to Transfer Control of a Submarine Cable Landing License, 
Memorandum Opinion and Order, 15 FCC Rcd 11909 (2000).  Although 
much of the conduct at issue occurred before the merger, we refer 
to the defendant only as ``Qwest'' in this order.

2    See 47 C.F.R.  51.703(b) and 51.709(b).

3    Mountain also alleged in its complaint that Qwest violated 
section 51.305 of the Commission's rules, 47 C.F.R.  51.305, and 
sections 201, 251, and 252 of the Act, 47 U.S.C. 201, 251, 
252, by failing to negotiate an interconnection agreement with 
Mountain in good faith.  See Formal Complaint of Mountain 
Communications, Inc, File No. EB-00-MD-017, at 12-18 (filed Sep. 
11, 2000) (``Mountain Complaint'').  However, we previously 
dismissed these claims without prejudice on procedural grounds.  
See Letter Ruling from Frank G. Lamancusa, Deputy Chief, Market 
Disputes Resolution Division, File No. EB-00-MD-017 (Sep. 19, 
2001) (``Letter Ruling'').

4    TSR Wireless, LLC v. U S West Communications, Inc., 
Memorandum Opinion and Order, 15 FCC Rcd 11166 (2000) (``TSR 
Wireless Order''), aff'd sub. nom., Qwest Corp. v. FCC, 252 F.3d 
462 (D.C. Cir. 2001). 

5    Texcom, Inc., d/b/a Answer Indiana v. Bell Atlantic Corp., 
d/b/a Verizon Communications, Memorandum Opinion and Order, FCC 
01-347 (rel. Nov. 28, 2001) (``Texcom Order'' or ``Texcom''), 
Petition for Reconsideration pending.

6    See Joint Statement of Mountain Communications, Inc. and 
Qwest Communications International, Inc., File No. EB-00-MD-017, 
at 5 (filed Oct. 16, 2000) (``Joint Statement''); Mountain 
Complaint at 3; Answer of Qwest Communications International, 
Inc., File No. EB-00-MD-017, at 12 (filed Oct. 2, 2000) (``Qwest 
Answer''). 

7    See Joint Statement at 5; Mountain Complaint at 3; Qwest 
Answer at 12. 

8    Mountain Complaint at 3; Qwest Answer at i, 13; Joint 
Statement at 8.

9    See Mountain Complaint, Exhibit III at 2; Qwest Answer at 1, 
13.   

10   See Qwest Corporation's Brief on the Disputed Material 
Issues, File No. EB-00-MD-017, at 10-13 (filed Jan. 19, 2001) 
(``Qwest Brief'').

11   See TSR Wireless Order, 15 FCC Rcd at 11169,  6 n.6.  
During the relevant period, section 51.701(b)(1) of the 
Commission's rules defined a LEC's ``local'' calling area as the 
service area, defined by state commissions, within which calls 
are not subject to toll charges.  47 C.F.R.  51.701(b)(1) 
(2000).  (The Commission has since amended section 51.701(b)(1), 
but not in a manner relevant here.  See Implementation of the 
Local Competition Provisions in the Telecommunications Act of 
1996, Order on Remand and Report and Order, 16 FCC Rcd 9151, 
9167,  34, and 9173,  46 (2001) (``Reciprocal Compensation 
Remand Order'')).  Local service areas for CMRS carriers, by 
contrast, are generally referred to as Major Trading Areas 
(``MTAs'').  47 C.F.R.  51.701(b)(2).  MTAs are based on the 
Rand McNally 1992 Commercial Atlas and Marketing Guide, 123rd 
edition, at pages 38-39, with several exceptions and additions 
set forth in 47 C.F.R. 24.202(a).  47 C.F.R. 24.202(a).  MTAs 
are typically larger than ``local'' calling areas applicable to 
LECs.  TSR Wireless Order, 15 FCC Rcd at 11177,  31.

12   See TSR Wireless Order, 15 FCC Rcd at 11169,  6 n.6.

13   ``Direct Inward Dialing" or "DID" is a service that reduces 
the facilities needed (and thus the cost) to carry traffic 
between a local exchange carrier and a customer with multiple 
telephone numbers by transporting that traffic over significantly 
fewer lines.  Unlike normal telephone service, which requires 
dedicated facilities for each number, a DID service transports 
traffic over shared facilities to the customer's premises.  For 
example, a 100-telephone number customer purchasing DID service 
might need only 10 lines to carry traffic between its premises 
and the network, as opposed to the 100 individual lines needed 
for traditional service.  DID service also supports additional 
features that can result in further cost savings.  See generally 
Annabel Z. Dodd, The Essential Guide to Telecommunications, 48-49 
(2d ed. 1999); Harry Newton, Newton's Telecom Dictionary, 264-65 
(16th ed. 2000).

14   See Qwest Brief at 10-12, Second Supplemental Declaration of 
Sheryl R. Fraser, at  7-8.  Mountain contends that the service 
described above is not a ``wide area calling'' service within the 
meaning of the TSR Wireless Order.  Mountain Communications, Inc. 
Reply to Qwest Corporation's Brief on the Disputed Material 
Issues, File No. EB-00-MD-017, at 8-10 (filed Jan. 26, 2001) 
(``Mountain Reply'').  As discussed, infra, we disagree with 
Mountain.

15   Mountain Complaint at 3; Qwest Answer at 13.

16   See TSR Wireless Order, 15 FCC Rcd at 11177,  19 n.70; 
Mountain Complaint at 11; Exhibit 23, at 2; Qwest Answer at 10; 
23; Joint Statement at 8.

17   See Mountain Complaint at 3, 22, Exhibits III and IV.  

18   As of February 16, 1998, Mountain ceased to pay any charges 
Qwest billed it for its continuing receipt of interconnection 
services.  See Qwest Answer at 4. 

19   See Mountain Complaint at 9-11; Joint Statement at 10; 
Mountain Communications, Inc. Brief, File No. EB-00-MD-017, at 1-
6 (filed Jan. 8, 2001) (``Mountain Brief''); Mountain Reply at 4-
7; Mountain Communication, Inc.'s Opposition to Qwest's Motion to 
Dismiss, File No. EB-00-MD-017, at 3-10 (filed Jan. 10, 2001) 
(``Mountain Opposition'').

20   See Mountain Complaint at 10-12; Joint Statement at 10; 
Mountain Brief at 7-9; Mountain Reply at 7-9.  Mountain 
improperly uses the term ``termination'' to characterize the 
transport function that Qwest provides Mountain.  Qwest does not 
``terminate'' the traffic it carries to Mountain's network within 
the meaning of the Commission's rules.  See, e.g., 47 C.F.R.  
51.701(d) (termination is the switching of telecommunications 
traffic from the terminating carrier's end office switch and 
delivery of such traffic to the called party's premises).  Thus, 
we view Mountain's claim as addressing the lawfulness of Qwest's 
charges for the transport of certain traffic to Mountain, not the 
termination of such traffic. 

21   See Qwest Answer at 32.  See 47 U.S.C.  251 and 252.

22   See TSR Wireless Order, 15 FCC Rcd at 11172,  13; Qwest 
Corp. v. FCC, 252 F.3d at 463.

23   47 C.F.R.  51.703(b).

24   47 C.F.R.  51.709(b) (``The rate of a carrier providing 
transmission facilities dedicated to the transmission of traffic 
between two carriers' networks shall recover only the costs of 
the proportion of that trunk capacity used by an interconnecting 
carrier to send traffic that will terminate on the providing 
carrier's network'').

25   TSR Wireless Order, 15 FCC Rcd at 11177,  19 n.70. 

26   See Mountain Complaint at 9-11; Mountain Brief at 1-6; 
Mountain Reply at 4-7; Mountain Opposition at 3-10.  Mountain 
contends for the first time in its briefs that Qwest's 26.2 
percent ``transiting factor'' -- which estimates how much of the 
total traffic that Qwest transports to Mountain is transiting 
traffic -- is unreasonably high.  See Mountain Communications, 
Inc.'s Opposition to Qwest's Motion to Dismiss, File No. EB-00-
MD-017, at 10-11 (filed Jan. 10, 2001) (``Mountain Opposition); 
Mountain Reply at 7; Mountain Complaint, Exhibit XXIII.  Mountain 
failed to raise this issue in its complaint.  Therefore, the 
record provides an inadequate basis on which to assess the merits 
of this potentially complex argument.  Accordingly, we decline to 
address this assertion in this order.  See, e.g., AT&T Corp. v. 
Jefferson Telephone Co., Memorandum Opinion and Order, 16 FCC Rcd 
16130, 16133 n.18 (2001) (declining to address an issue raised 
for the first time in the brief).

27   See Mountain Complaint at 9-10; Mountain Brief at 3-5; 
Mountain Opposition at 4-5.

28   See Mountain Complaint at 2-4, 6-7; Mountain Opposition at 
5-6; Mountain Brief at 4.

29   See Mountain Complaint at 5; Mountain Opposition at 7-8. 

30   See Texcom Order,  5-13.  As the Commission indicated in 
Texcom, the CMRS carrier pays the interconnecting LEC for the 
costs of the portion of facilities used to transport transiting 
traffic from the interconnecting LEC's network to the CMRS 
carrier's network.  The CMRS carrier may then seek reimbursement 
of the costs associated with transport and termination of that 
traffic from the carriers that originated the transiting traffic 
in question.  See 47 U.S.C.  251(b)(5); 47 C.F.R.  51.701, et 
seq.

31   Our ruling effectively moots Qwest's Motion to Dismiss, in 
which Qwest sought dismissal of Mountain's claims that Qwest 
could not charge for transiting traffic.  See Qwest Corporation's 
Motion to Dismiss Mountain Communication, Inc.'s Transit Claims, 
File No. EB-00-MD-017, at 14 (filed Jan. 2, 2001) (``Motion to 
Dismiss'').  Accordingly, we dismiss the Motion to Dismiss. 

32   47 C.F.R.  51.703(b).

33   TSR Wireless Order, 15 FCC Rcd at 11177,  31. Mountain 
notes that section 51.701(b)(2) defined ``local 
telecommunications traffic'' as ``telecommunications traffic 
between a LEC and a CMRS provider that, at the beginning of a 
call, originates and terminates within the same MTA.  Id.  The 
Commission's recent removal of the word ``local'' from section 
51.703 does not alter the definition contained in section 
51.701(b)(2).  See Reciprocal Compensation Remand Order, 16 FCC 
Rcd at 9167,  34, and 9173,  46. 

34   TSR Wireless Order, 15 FCC Rcd at 11177,  31.

35   Id.

36   Id.

37   Id. at 11177,  30.

38   See Qwest Brief at 10-12, Second Supplemental Declaration of 
Sheryl R. Fraser, at  7-8.

39   Mountain Brief at 7-9.

40   Id. at 8.

41   Mountain Brief at 8.

42   See Qwest Brief at 10-12. 

43   See Mountain Brief at 7-9.

44   Qwest Brief at 11.

45   Id.