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FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
Mountain Communications, Inc., )
v. ) File No. EB-00-MD-017
Qwest Communications )
International, Inc., )
ORDER ON REVIEW
Adopted: July 23, 2002 Released: July 25, 2002
By the Commission:
In this Order on Review, we deny Mountain
Communications, Inc.'s (``Mountain'') application for review1 of
the Memorandum Opinion and Order2 in the above-captioned matter
issued by the Enforcement Bureau (``Bureau''). In the Mountain
Order, the Bureau denied Mountain's complaint alleging that Qwest
Communications International, Inc. (``Qwest''), an incumbent
local exchange carrier (``LEC''), violated sections 51.703 and
51.709(b) of the Commission's rules3 by charging Mountain, a
commercial mobile radio service (``CMRS'') carrier, for costs
associated with ``transiting traffic'' and for the facilities
used to provide ``wide area calling.'' Mountain provides us with
insufficient justification to overturn the Bureau's conclusions
in the Mountain Order, and, therefore, we deny the Mountain
· II. DISCUSSION
A. Qwest May Lawfully Charge Mountain for Transiting
2. Mountain first contends that the Bureau erred in
finding that Qwest may lawfully charge Mountain for a portion of
the facilities used for the transport of transiting traffic.4 As
it did in its complaint, Mountain argues that Qwest is ``double
recovering'' for those facilities, that the Commission's rules
and orders prohibit such charges, and that the Commission erred
in the TSR Wireless Order5 in allowing LECs to charge for
transiting traffic.6 The Bureau considered and rejected all of
these allegations in the Mountain Order.7 Moreover, the
Commission has subsequently reaffirmed its determination that a
LEC may lawfully charge a CMRS carrier for the facilities used in
transporting transiting traffic.8 In addition, Mountain again
fails to support its double recovery allegations with any
evidence that Qwest already recovers for the facilities in
question from some other source.9 Thus, Mountain provides no
basis for us to overturn the Bureau's decision.
3. Further, Mountain argues that the Bureau's order is
flawed because it relies on a purportedly incorrect finding by
the Commission in the Texcom Order. According to Mountain, the
Commission wrongly concluded in the Texcom Order that the
interconnecting LEC was the terminating carrier with respect to
call traffic sent to a CMRS carrier. Mountain argues that the
Bureau relied on this incorrect conclusion in determining that
Mountain, rather than Qwest, is responsible for the cost of
facilities used to deliver transiting traffic to Mountain.10
Mountain's reading of the Texcom Order is incorrect. The
Commission in the Texcom Order stated that the CMRS carrier, not
the interconnecting LEC, was the terminating carrier.11 The
Commission subsequently confirmed this point in the Texcom
Reconsideration Order.12 Accordingly, the Commission concluded
that the interconnecting LEC, because it is not a terminating
carrier, could not recover reciprocal compensation payments for
transiting traffic, and the interconnecting LEC could charge the
CMRS carrier for the transport of such traffic.13 Thus,
Mountain's reliance on an incorrect reading of the Texcom Order
does not justify overturning the Bureau's decision.
B. Qwest May Lawfully Charge Mountain for Wide Area
4. Mountain claims that the Bureau erred in its
determination that Qwest may lawfully charge Mountain
for wide area calling.14 The Bureau's order stated
that the wide area calling arrangement at issue
involves Qwest's provision of dedicated toll
facilities to Mountain that connect the Direct Inward
Dialing (``DID'') numbers that Mountain has obtained
in each of Qwest's local calling areas to Mountain's
interconnection point in another local calling area.
15 The Bureau found that this enabled 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.16 Mountain first
disputes the Bureau's finding that the interconnection
arrangement it has obtained from Qwest constitutes
wide area calling.17 Mountain maintains that wide
area calling is limited to a reverse billing
arrangement18 and does not encompass the provision of
facilities.19 In addition, Mountain denies that the
T-1 facilities it obtains from Qwest to connect the
DID numbers used by Mountain's customers in each of
Qwest's local calling areas to Mountain's
interconnection point are ``dedicated toll
facilities'' because those facilities do not carry
``toll'' traffic.20 Mountain maintains that the T-1
lines provisioned by Qwest are simply facilities
required to effectuate a single point of
interconnection within a Local Access and Transport
Area (``LATA''), for which Qwest is responsible
pursuant to section 51.703(b) of the Commission's
rules.21 Mountain also contends that the Bureau's
ruling is inconsistent with the Commission's TSR
Wireless Order, because the network configuration
discussed in the TSR Wireless Order is identical to
Mountain's arrangement with Qwest.22
5. We are not persuaded by Mountain's arguments. As an
initial matter, Mountain's understanding of wide area calling is
incorrect. As the Commission pointed out in the TSR Wireless
Order, wide area calling allows a paging carrier to subsidize the
cost of calls from a LEC's customers to the paging carrier's
customers, when the LEC must complete those calls by transporting
the calls from one local calling area to another.23 A reverse
billing arrangement is only one of several types of wide area
calling services, and the T-1 lines that constitute the
``dedicated toll facilities'' in Mountain's interconnection
arrangement with Qwest are referred to as such because their sole
function is to route the DID numbers to Mountain's point of
interconnection in Pueblo.24 By establishing a point of
interconnection in Pueblo, obtaining DID numbers that reside in
Qwest's central offices in Pueblo, Walsenberg, and Colorado
Springs, and then requesting T-1 lines from Qwest to connect
those DID numbers to its point of interconnection in Pueblo,
Mountain ensures that calls to the DID numbers in each of the
relevant Qwest central offices appear local and involve no toll
charges to callers in those areas.25 By configuring its
interconnection arrangement in this manner, Mountain prevents
Qwest from charging its customers for what would ordinarily be
toll calls to access Mountain's network. Accordingly, Mountain
has obtained a wide area calling service for which it must
compensate Qwest. Mountain's position that the lack of a written
agreement between the parties indicates that no wide area calling
arrangement with Qwest exists is meritless.26 Mountain's
ordering and acceptance of the T-1 facilities from a tariff that
create a wide area calling arrangement constitutes an agreement
between the parties regarding the provisioning of this service.27
6. Mountain is correct that the network configuration
discussed in the TSR Wireless Order is similar to Mountain's
arrangement with Qwest.28 Contrary to Mountain's contentions,
however, the Mountain Order did not alter the Commission's
position in the TSR Wireless Order that, pursuant to section
51.701(b) of the Commission's rules, a LEC may not charge a CMRS
carrier for the delivery of LEC-originated traffic that
originates and terminates within the same Major Trading Area
(``MTA'').29 The Mountain Order merely reiterated that a LEC is
entitled to charge its own subscribers for intraLATA toll calls
on its network that terminate within the same MTA, and that the
LEC may charge a CMRS carrier for services that are not necessary
to effectuate interconnection.30 Mountain's wide area calling
arrangement with Qwest is not necessary to effectuate
interconnection.31 In fact, Mountain is free to cancel both the
DID numbers and the dedicated toll facilities connecting those
DID numbers to Mountain's single of point of interconnection, and
instead permit Qwest to bill its own end users for toll calls to
Mountain's point of interconnection. Indeed, that is precisely
the choice the Commission contemplated in addressing the network
configuration at issue in the TSR Wireless Order. Moreover,
because Mountain's network arrangement is not necessary for
interconnection, Qwest's charges do not implicate the good faith
negotiations obligations under section 251(c)(1) of the Act.32
Thus, Qwest's assessment of a flat monthly rate for the T-1 lines
Mountain has leased to effectuate wide area calling is
7. Lastly, we reject Mountain's claim that the Bureau's
wide area calling determination allows Qwest to double recover
for the facilities used to deliver traffic to Mountain, because
Qwest already receives compensation for these facilities from
Qwest's subscribers and third party carriers that originate
traffic onto Qwest's network.33 As we explained in the
transiting traffic context, Qwest is not a terminating carrier
and cannot recover its costs for this portion of the network
through reciprocal compensation charges.34 Moreover, Mountain
fails to provide any evidence that Qwest is already recovering
its transport costs for the facilities in question from some
III. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED, pursuant to sections 1,
4(i), 4(j), 5(c), 208, and 405 of the Communications Act of 1934,
as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 155(c), 208, 405,
and section 1.106 of our rules, 47 C.F.R. § 1.106, that the
``Petition for Reconsideration'' filed by Mountain Communications
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
1 Petition for Reconsideration of Memorandum Opinion and
Order, File No. EB-00-MD-017 (filed Mar. 4, 2002) (``Mountain
Petition''). Although the Mountain Petition is titled ``Petition
for Reconsideration,'' we note that it is addressed ``To: The
Commission,'' and cites 47 C.F.R. § 1.115, which establishes
rules for filing an application for review of actions taken
pursuant to delegated authority. Accordingly, we are treating
the petition as an application for review.
2 Mountain Communications, Inc. v. Qwest Communications
International, Inc., Memorandum Opinion and Order, 17 FCC Rcd
2091 (2002) (``Mountain Order'').
3 See 47 C.F.R. §§ 51.703(b) and 51.709(b).
4 See Mountain Petition at 3-6, ¶¶ 6-10; 20-22, ¶¶ 34-36; 22,
¶ 37; 23, ¶¶ 38-39; 24, ¶¶ 40. ``Transiting traffic'' refers to
calls made to Mountain's customers originating from customers of
carriers other than Qwest. Mountain Order, 15 FCC Rcd at 11911,
5 TSR Wireless, LLC v. U S West Communications, Inc.,
Memorandum Opinion and Order, 15 FCC Rcd 11166, 11177, ¶ 19 n.70
(2000) (``TSR Wireless Order''), aff'd sub. nom., Qwest Corp. v.
FCC, 252 F.3d 462 (D.C. Cir. 2001).
6 See Mountain Petition at 3-6, ¶¶ 6-10 (addressing reciprocal
compensation arguments); 20-22, ¶¶ 34-36 (addressing access
7 See Mountain Order, 17 FCC Rcd at 2095, ¶ 10.
8 Texcom, Inc., d/b/a Answer Indiana v. Bell Atlantic Corp.,
d/b/a Verizon Communications, Order on Reconsideration, FCC 02-96
(rel. Mar. 27, 2002) (``Texcom Reconsideration Order'') at 2-3,
¶¶ 3-6. See also Texcom, Inc., d/b/a Answer Indiana v. Bell
Atlantic Corp., d/b/a Verizon Communications, Memorandum Opinion
and Order, 16 FCC Rcd 21493, 21495-7, ¶¶ 5-13 (2002) (``Texcom
9 See Mountain Petition at 3-6, ¶¶ 6-10; 20-22, ¶¶ 34-36.
10 Mountain Petition at 4-5, ¶¶ 6-8. Mountain asserts that 47
C.F.R. § 51.701(c) and the Bureau's previous orders require a LEC
to provide the transport for all call traffic, including
transiting traffic, because the equipment that is used in this
transport function up to the point of interconnection is part of
the LEC's network. Id. at 5-6, ¶¶ 9-10.
11 Texcom Order, 16 FCC Rcd at 21496, ¶ 10. See also Texcom
Reconsideration Order at 2-3, ¶ 4 (stating that GTE North is not
a terminating carrier); TSR Wireless Order, 15 FCC Rcd at 11180-
81, ¶ 24 (finding that paging carriers terminate calls within the
meaning of section 51.701(d)).
12 Texcom Reconsideration Order at 2-3, ¶ 4.
13 Texcom Reconsideration Order at 2-3, ¶ 4. Further, the
Commission and the Bureau have made clear that a terminating
carrier may seek reimbursement of these costs from originating
carriers through reciprocal compensation. Id.; Mountain Order,
17 FCC Rcd at 2095, ¶ 10 n.30; Metrocall, Inc. v. Concord
Telephone Co., Memorandum Opinion and Order, 17 FCC Rcd 2252,
2257, ¶11 n.41 (2002).
14 See Mountain Petition at 7-20, ¶¶ 11-33.
15 Mountain Order, 17 FCC Rcd at 2092, ¶ 3.
17 Mountain Petition. at 7-14, ¶¶ 11-23. Mountain's contention
that it does not obtain interconnection services from Qwest is
belied by the obvious fact that it would not be able to receive
any calls on its network from Qwest's network without Qwest's
provision of interconnection. Id. at 3, ¶ 3.
18 A reverse billing arrangement is one in which the LEC
assesses a per minute usage charge to the CMRS carrier, in place
of a toll charge to the originator of the call. See TSR Wireless
Order, 15 FCC Rcd at 11169, ¶ 6 n.6.
19 See Mountain Petition at 7-14, ¶¶ 11-23.
20 Id. at 8, ¶ 13; 11, ¶ 18.
21 Id. at 11-14, ¶¶ 19-23.
Id. at 11, ¶ 19.
22 Id. at 16-18, ¶¶ 26-28.
23 TSR Wireless Order, 15 FCC Rcd at 11177, ¶¶ 30-31; Mountain
Order, 17 FCC Rcd at 2092, ¶ 3.
24 Mountain Order, 17 FCC Rcd at 2092, ¶ 3.
25 See Qwest Corporation's Opposition to Mountain's Petition
for Reconsideration of Memorandum Opinion and Order, File No. EB-
00-MD-017 (filed Mar. 18, 2002) at 6.
26 See Mountain Petition at 18-20, ¶¶ 29-33.
27 Mountain Order, 17 FCC Rcd at 2097, ¶ 13.
28 See TSR Wireless Order, 15 FCC Rcd at 11177, ¶ 31.
29 Mountain Order, 17 FCC Rcd at 2096, ¶11; TSR Wireless Order,
15 FCC Rcd at 11177, ¶ 31.
30 Mountain Order, 17 FCC Rcd at 2096, ¶11; TSR Wireless Order,
15 FCC Rcd at 11177, ¶¶ 30-31.
31 Mountain Order, 17 FCC Rcd at 2097, ¶13; TSR Wireless Order,
15 FCC Rcd at 11177, ¶ 31.
32 See Mountain Petition at 18-20, ¶¶ 29-33. 47 U.S.C. §
33 See Mountain Petition at 14-16, ¶¶ 24-25.
34 See supra ¶ 3.