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Federal Communications Commission
Washington, D.C. 20554
In the matter of )
METROCALL, INC., )
) File Nos. E-98-16, E-98-17
SOUTHWESTERN BELL TELEPHONE )
COMPANY and PACIFIC BELL )
TELEPHONE COMPANY, )
Order On Reconsideration
Adopted: March 12, 2002 Released: March 15,
By the Commission:
1. In this Order on Reconsideration, we deny the
petition filed by Metrocall, Inc. (``Metrocall'') seeking
reconsideration of our Memorandum Opinion and Order on
Supplemental Complaint for Damages.1 Metrocall seeks
reconsideration of our finding that it is subject to charges for
transiting traffic2 as well as our decision to consider such
charges in determining whether Metrocall was entitled to any
refund of its payments to defendants Pacific Bell Telephone
Company and Southwestern Bell Telephone Company (collectively,
``the SBC defendants'').3 Metrocall also demands that the
Commission impose forfeitures on the SBC defendants and award
Metrocall half of any resulting payments. Alternatively,
Metrocall seeks reconsideration of our rejection of its demand
for punitive damages against the SBC defendants.
2. Transiting traffic is ``traffic that originates
from a carrier other than the interconnecting LEC [Local Exchange
Carrier] but nonetheless is carried over the LEC network to the
paging carrier's network.''4 In the Liability Order in this
proceeding, we held that LECs had the right to charge paging
carriers for such traffic.5 In the Damages Order, we held that,
although the SBC defendants had improperly imposed certain
charges on Metrocall, Metrocall was not entitled to a refund of
its payments to the SBC defendants because, even under
Metrocall's billing figures, it still had underpaid for lawful
charges, including transiting charges, on its interconnection-
related accounts with the SBC defendants.6 In its Petition for
Reconsideration, Metrocall claims that we should not have
considered the transiting traffic charges in the Damages Order
because we allegedly erred in our decision regarding the
lawfulness of those charges in the Liability Order.
3. The parties focus on whether Metrocall properly
disputed the lawfulness of transiting traffic charges in this
proceeding, such that it might question the legality of those
charges in its supplemental complaint for damages.7 We need not
reach this question, however, because we have affirmed the
lawfulness of transiting traffic charges since the close of
briefing in this case.8 In a recent decision, we stated
unequivocally that ``our rules ... allow a LEC to charge a paging
carrier for traffic that transits the LEC's network and
terminates on the paging carrier's network as long as the traffic
does not originate on the LEC's network.''9 Metrocall's petition
for reconsideration on this point is therefore denied.
4. Metrocall also asks that the Commission impose
forfeitures against the SBC defendants and award it half of any
such payments, in light of its efforts ``to force the LECs to
comply with the Act and the Commission's rules and orders.''10
Alternatively, Metrocall seeks reconsideration of our decision in
the Damages Order to deny it punitive damages against the SBC
5. We deny both of Metrocall's demands. As an
initial matter, we note that ``[f]orfeitures are not available as
a remedy to a complainant in a section 208 complaint
proceeding.''12 Thus, Metrocall's request for some sort of
``bounty'' against the SBC defendants need not be addressed here.
Finally, Metrocall offers no new facts or arguments in support of
its demand that we reconsider our denial of its claim for
punitive damages. We therefore deny Metrocall's petition for
reconsideration on this point for the reasons stated in the
6. Accordingly, IT IS ORDERED, pursuant to sections
4(i), 4(j), and 405 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 154(i), 154(j), 405, that Metrocall's
Petition for Reconsideration IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
1 Metrocall, Inc. v. Southwestern Bell Tel. Co.,
Memorandum Opinion and Order on Supplemental Complaint for
Damages, 16 FCC Rcd 18123 (2001) (``Damages Order'').
2 See Petition for Reconsideration, File Nos. E-98-16 et
al. (Nov. 1, 2001) at 8. We made this finding in our order
determining liability in this proceeding. See TSR Wireless, LLC
v. U S West Communications, Inc., 15 FCC Rcd 11166, 11177, para.
19 n.70 (2000) (``Liability Order''), petition for recon.
dismissed, 16 FCC Rcd 11462, petition for review denied sub nom.
Qwest Corporation v. FCC, 252 F.3d 462 (D.C. Cir. 2001). We
subsequently rejected Metrocall's demand that we use the Damages
Order to reconsider our finding. Damages Order, 16 FCC Rcd at
18130, para. 21.
3 Petition for Reconsideration at 8.
4 Liability Order, at 11177, para. 19 n.70.
6 Damages Order, 16 FCC Rcd at 18123, para. 1.
7 In its Supplemental Complaint for Damages, Metrocall
sought review of our earlier determination in the Liability Order
regarding the lawfulness of charges for transiting traffic. We
denied Metrocall's request because it was ``procedurally
improper.'' Id., 16 FCC Rcd at 18130, para. 21. Metrocall could
not seek such review of the Liability Order at the damages stage
of the proceeding. Id. Instead, Metrocall ``should have filed a
petition for reconsideration with the Commission or a petition
for review with the federal appellate courts.'' Id. Metrocall
challenges this finding, while the SBC defendants support it.
See Petition for Reconsideration at 6-10; Opposition to Petition
for Reconsideration, File Nos. E-98-16 et al. (filed Nov. 13,
2001) at 2-7.
8 See Texcom, Inc. d/b/a Answer Indiana v. Bell Atlantic
Corp., d/b/a Verizon Commun., Memorandum Opinion and Order, FCC
01-347 (rel. Nov. 28, 2001) (``Texcom''), petition for
reconsideration pending. See also Mountain Commun., Inc. v.
Qwest Commun. Int'l, Inc., Memorandum Opinion and Order, DA 02-
250, para. 10 (Enf. Bur. rel. Feb. 4, 2002) (citing Texcom in
rejecting paging carrier's challenge to transiting traffic
charges); Metrocall, Inc. v. Concord Tel. Co., Memorandum Opinion
and Order, DA 02-301, paras. 11-12 (Enf. Bur. rel. Feb. 8, 2002).
9 Texcom, FCC 01-347, para. 5.
10 Petition for Reconsideration at 17.
11 Id. at 18.
12 William G. Bowles, Jr. PE. d/b/a Mid Missouri Mobilfone v.
United Tel. Co. of Missouri, 12 FCC Rcd 9840, 9855, para. 28
(Com. Car. Bur. 1997); see also Jeffrey Krauss v. MCI Telecom.
Corp., 14 FCC Rcd 2770, 2776, para. 11 (Com. Car. Bur. 1999)
(``The private remedies available through the section 208
complaint process are separate and distinct from the public
remedies available through section 503 forfeiture proceedings.
Section 208 provides for private remedies for individuals
aggrieved by carriers, while section 503 gives the Commission
discretion to assess forfeitures.'').
13 See Damages Order, 16 FCC Rcd at 18129-30, para. 20.