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Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
Mountain Communications, Inc., )
v. ) File No. EB-00-MD-017
Qwest Communications )
International, Inc., )
memorandum opinion and Order on Remand
Adopted: October 5, 2006 Released: October 6, 2006
By the Commission:
1. In this Memorandum Opinion and Order on Remand, we grant a formal
complaint brought by Mountain Communications, Inc. ("Mountain")
against Qwest Communications International, Inc. ("Qwest") pursuant to
section 208 of the Communications Act of 1934, as amended ("Act"). In
accordance with a decision by the United States Court of Appeals for
the District of Columbia Circuit ("D.C. Circuit") vacating and
remanding our earlier order, we find that Qwest violated sections
51.703(b) and 51.709(b) of our rules by improperly charging Mountain
for delivering one-way paging traffic that originated and terminated
in the same Major Trading Area ("MTA") and for which no wide area
calling arrangement had been established. In so holding, we reject
Qwest's assertion that granting the complaint is inappropriate in
light of the jurisdictional and limitations defenses it raises.
2. Mountain is a Commercial Mobile Radio Service ("CMRS") provider that
offers one-way paging services to customers in three Colorado cities
located in one MTA. Qwest is the incumbent local exchange carrier
("LEC") serving those Colorado cities.
3. Mountain filed a formal complaint with the Commission on September 11,
2000. In its Complaint, Mountain asserted, inter alia, that Qwest
violated sections 51.703(b) and 51.709(b) of the Commission's rules by
charging Mountain a fee for delivering to Mountain certain local
traffic that originated on Qwest's network, i.e., local calls from
Qwest's customers to Mountain's paging customers in the three Colorado
cities at issue. The Enforcement Bureau denied Mountain's Complaint.
Citing the Commission's earlier order in TSR Wireless, the Bureau
recognized that a LEC generally could not charge CMRS providers for
the delivery of LEC-originated traffic that originated and terminated
within the same MTA, because such traffic constituted local traffic
under the Commission's rules. The Bureau further explained, however,
that nothing prevented a LEC from charging its end users for intraLATA
toll calls that originated on its network and terminated over
facilities situated entirely within a single MTA. The Bureau noted
that, if a paging carrier wanted to avoid having callers to its
customers pay such toll charges, TSR Wireless left open the
possibility of wide area calling or reverse billing arrangements where
the CMRS carrier could "buy down" the cost of such calls to make it
appear to the LEC's end users that they have made a local call rather
than a toll call. The Bureau then found that Mountain and Qwest
effectively had entered into a wide area calling arrangement. Thus,
the Bureau concluded that Qwest was entitled to collect from Mountain
the transport fees at issue. The Commission affirmed the Bureau,
whereupon Mountain filed a petition for review in the D.C. Circuit.
4. The D.C. Circuit disagreed with the Commission's finding that Mountain
had entered into a constructive wide area calling arrangement with
Qwest. According to the court, the Commission wrongly "stretch[ed]
the concept of a wide area calling arrangement" to encompass the
situation between Mountain and Qwest, noting that Mountain had "no
incentive to enter into a wide area calling arrangement with Qwest."
In so finding, the Court concluded that the Commission departed,
without explanation, from TSR Wireless (in which, the Court said, the
"facts seem - and are conceded to be - identical, but the results are
the opposite"), and came into "direct conflict" with rule 51.703(b)
(which prohibits a LEC from assessing charges on any other
telecommunications carrier for telecommunications traffic that
originates on the LEC's network). Accordingly, the court vacated and
remanded the Commission's denial of Mountain's Complaint.
5. After release of the court's opinion, and at the request of Commission
staff, the parties and Commission staff engaged in a written and oral
dialogue regarding whether, in light of the Court's opinion, the
Commission should simply grant Mountain's complaint on the ground that
the applicable rules and precedent bar Qwest from imposing the
transport charges at issue. Qwest asserted that issues remain properly
before the Commission in this post-remand phase of this proceeding and
submitted a statement supporting its position. Specifically, Qwest
sought to brief its position that the Commission should not simply
grant Mountain's Complaint, because (i) the Commission lacks subject
matter jurisdiction to adjudicate disputes regarding interconnection
negotiations, and (ii) the applicable statute of limitations bars any
potential damages award.
6. As explained below, we grant Mountain's complaint and find that
Qwest's imposition of charges for transporting to Mountain the
Qwest-originated one-way paging traffic at issue violated section
51.703(b) and 51.709(b) of the Commission's rules. Accordingly, we
reject Qwest's contentions that the Commission cannot grant this
complaint because we lack subject matter jurisdiction in this matter
or because the statute of limitations bars any potential damages
7. First, Qwest's position on jurisdiction seems directed exclusively at
disputes concerning the negotiation of an interconnection agreement.
The Enforcement Bureau, however, already dismissed Mountain's claims
relating to the negotiation of interconnection agreements. We,
therefore, find that the jurisdictional issue Qwest raises is moot.
Moreover, to the extent that Qwest challenges Mountain's use of the
Commission's section 208 complaint procedure to resolve disputes over
the charges at issue, that jurisdictional question has long since been
resolved in favor of Commission jurisdiction. Indeed, the Bureau
Order so held, and Qwest did not challenge that holding in court.
8. Second, as a factual matter, Qwest's defense that the statute of
limitations has expired on any damages award is not justified at
present, because Mountain exercised its right under section 1.722 of
the Commission's rules to reserve damages issues for a subsequent
proceeding. Moreover, even if Qwest's statute of limitations defense
were valid, it would bar neither the non-damages claim for relief
resolved in this Order nor Mountain's claim for damages arising from
"economic harm" and other injuries allegedly incurred since September
11, 1998. Thus, it is appropriate to defer briefing on Qwest's statute
of limitations defense until the subsequent damages proceeding, if
any, commences. Accordingly, Qwest may raise the statute of
limitations defense in its answer to any supplemental complaint for
damages filed by Mountain.
9. Qwest concedes that, aside from the two issues discussed above, there
is nothing further for us to adjudicate in the liability phase of the
instant proceeding. We agree. The record demonstrates that Qwest
charged Mountain a fee for delivering one-way paging traffic that
originated and terminated in the same MTA. And, as the D.C. Circuit
noted, Mountain did not enter into a wide area calling arrangement
with Qwest that might have permitted Qwest to charge for the traffic
at issue. Absent such an arrangement, we conclude, consistent with the
D.C. Circuit's reasoning, that Qwest's charges for transporting
one-way paging telecommunications traffic to Mountain from Qwest's own
customers are unlawful.
IV. Ordering Clause
10. Accordingly, IT IS ORDERED that, pursuant to sections 4(i), 4(j), and
208 of the Communications Act of 1934, as amended, 47 U.S.C. SS
154(i), 154(j), and 208, and sections 1.720-1.736, 51.703(b), and
51.709(b) of the Commission's rules, 47 C.F.R. SS 1.720-1.736,
51.703(b), and 51.709(b), Mountain's claim that Qwest's charges for
transporting traffic to Mountain from Qwest's own customers are
unlawful IS GRANTED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Formal Complaint, File No. EB-00-MD-017 (filed Sept. 12, 2000)
47 U.S.C. S 208.
See Mountain Communications, Inc. v. FCC, 355 F.3d 644 (D.C. Cir. 2004)
("Mountain v. FCC").
47 C.F.R. SS 51.703(b) (prohibiting a LEC from assessing charges on
another carrier for telecommunications traffic that originates on the
LEC's own network), 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.").
Mountain v. FCC, 355 F.3d at 647 n.2; Mountain Communications, Inc. v.
Qwest Communications International, Inc., Memorandum Opinion and Order, 17
FCC Rcd 2091, 2096, P 11 (Enf. Bur. 2002) ("Bureau Order"), aff'd,
Mountain Communications, Inc. v. Qwest Communications International,
Inc., Order on Review, 17 FCC Rcd 15135 (2002) ("Commission Order"),
vacated and remanded, Mountain v. FCC, supra.
Mountain v. FCC, 355 F.3d at 645-46; Bureau Order, 17 FCC Rcd at 2091, P
Complaint at 9-10, PP 36-40; Mountain v. FCC, 355 F.3d at 646; 47 C.F.R. S
51.703(b); 47 C.F.R. S 51.709(b).
Bureau Order, 17 FCC Rcd at 2097-98, PP 13-14.
TSR Wireless, LLC v. U S West Communications, Inc., Memorandum Opinion and
Order, 15 FCC Rcd 11166 (2000) (rejecting similar effort by LEC to charge
paging carrier for delivering local calls that originated on LEC's
network) ("TSR Wireless"), aff'd sub nom. Qwest Corp. v. FCC, 252 F.3d
462 (D.C. Cir. 2001) ("Qwest v. FCC").
Bureau Order, 17 FCC Rcd at 2094-96 PP 8, 11.
Bureau Order, 17 FCC Rcd at 20946, P 11.
Bureau Order, 17 FCC Rcd at 2096, P 11.
Bureau Order, 17 FCC Rcd at 2096-97, PP 12-13.
Bureau Order, 17 FCC Rcd at 2097-98, PP 13-14.
Commission Order, supra.
Mountain v. FCC, 355 F.3d at 645.
Mountain v. FCC, 355 F.3d at 647-48.
Mountain v. FCC, 355 F.3d at 647-48.
Mountain v. FCC, 355 F.3d at 647-48 (citing TSR Wireless, 15 FCC Rcd at
11184, P 31; 47 C.F.R. S 51.703(b)).
Mountain v. FCC, 355 F.3d at 647-49.
See Joint Statement of Mountain Communications, Inc. and Qwest
Corporation Regarding Proceeding on Remand, File. No. EB-00-MD-017 (filed
Feb. 20, 2004); Supplement to Joint Statement of Mountain Communications,
Inc. and Qwest Corporation Regarding Proceeding on Remand, File. No.
EB-00-MD-017 (filed Mar. 9, 2004). Conference calls involving Commission
staff and the parties occurred on April 8, 2004, April 30, 2004, and May
Statement of Issues to be Addressed on Remand by Qwest Communications
International, Inc., File No. EB-00-MD-017 (filed May 17, 2004) ("Qwest
Statement of Issues"). See Letter from Radhika V. Karmarkar, Deputy Chief,
Market Disputes Resolution Division, Enforcement Bureau, Federal
Communications Commission, to Robert B. McKenna, Jr., Qwest Corporation,
and Benjamin J. Aron, Schwaninger & Associates, P.C., counsel for
Mountain, File No. EB-00-MD-017 (May 13, 2004); Mountain Communications,
Inc.'s Reply to Statement of Issues to be Addressed on Remand by Qwest
Communications International, Inc., File. No. EB-00-MD-017 (filed May 17,
2004) ("Mountain's Reply").
Qwest Statement of Issues at 1-2.
Qwest Statement of Issues at 2.
Qwest Statement of Issues at 1-2 ("Because the Act specifies that disputes
over an interconnection negotiation belong before state regulatory
authorities, Mountain's claims must be addressed in a state arbitration
proceeding rather than in a complaint proceeding before this
Letter Ruling from Frank G. Lamancusa, Deputy Chief, Market Disputes
Resolution Division, Enforcement Bureau, Federal Communications
Commission, to Michael L. Higgs, counsel for Mountain, and Blair A.
Rosenthal, Qwest Corporation, File No. EB-00-MD-017 at 2 (Sept. 19, 2001).
See, e.g., Qwest v. FCC, 252 F.3d at 463-64 (upholding Commission's use
of complaint procedure under sections 208 and 332 of the Act to resolve
paging carrier's claims alleging violation of rule 51.703(b)).
Bureau Order, 17 FCC Rcd at 2094, P 7.
47 C.F.R. S 1.722(d) (identifying the steps a complainant must take if it
"wishes a determination of damages to be made in a proceeding that is
separate from and subsequent to the proceeding in which the determinations
of liability and prospective relief are made").
Complaint at 19, P 83.
See AT&T Corp. v. BellSouth Telecommunications, Inc., Memorandum Opinion
and Order, 19 FCC Rcd 23898, 23915, P 45 (2004) (declining to consider
statute of limitations defense during liability phase of bifurcated
proceeding in which complainant sought both prospective relief and
Complaint at 19, P 82.
Qwest Statement of Issues at 3.
Joint Statement of Mountain Communications and Qwest Corporation, File No.
EB-00-MD-017 at 8, P 22 (filed Oct. 16, 2000). See Mountain v. Qwest, 355
F.3d at 645.
Mountain v. Qwest, 355 F.3d at 647-48.
This Order concerns application of our existing rules only, and expresses
no opinion with regard to formulation of new or revised intercarrier
Federal Communications Commission FCC 06-147
Federal Communications Commission FCC 06-147