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Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Qwest Communications Company, LLC,
) File No. EB-11-MD-001
Northern Valley Communications, LLC,
ORDER ON RECONSIDERATION
Adopted: October 4, 2011 Released: October 5, 2011
By the Commission:
1. In this Order on Reconsideration, we dismiss on procedural grounds and
alternatively on independent grounds, deny on the merits the Petition
for Reconsideration or Clarification of Northern Valley
Communications, LLC ("Northern Valley"). We also dismiss on procedural
grounds the Petition for Reconsideration of Aventure Communication
Technology, L.L.C. ("Aventure").
2. Northern Valley and Aventure filed their petitions under section 405
of the Communications Act of 1934, as amended ("Act"), and section
1.106 of the Commission's rules, challenging the Commission's
Memorandum Opinion and Order granting a formal complaint filed by
Qwest Communications Company, LLC ("Qwest") against Northern Valley
pursuant to section 208 of the Act. In the Order, the Commission found
that Northern Valley's interstate switched exchange access services
tariff ("Tariff") violated section 201(b) of the Act, and ordered
Northern Valley to revise the Tariff within ten days of the Order's
3. Northern Valley is a competitive local exchange carrier ("CLEC"),
providing interstate exchange access services to interexchange
carriers ("IXCs") pursuant to tariffs filed with the Commission. Qwest
is an IXC providing interstate telecommunications services throughout
the United States. The Tariff at issue in the Order purported to allow
Northern Valley to charge IXCs for originating or terminating calls to
individuals or entities to whom Northern Valley offers
telecommunications for free.
4. In the Order, the Commission found that the Tariff violated Commission
rule 61.26, as clarified by the CLEC Access Charge Reform
Reconsideration Order, and therefore also violated section 201(b) of
the Act. Rule 61.26, which is entitled "Tariffing of competitive [LEC]
interstate switched exchange access services," requires that tariffed
CLEC charges for "interstate switched exchange access services" be for
services that are the "functional equivalent" of ILEC interstate
exchange access services. In the CLEC Access Charge Reform
Reconsideration Order, the Commission clarified that a CLEC provides
the "functional equivalent" of an ILEC's access services only if the
CLEC transmits the call to its "own end user." The Commission
reasoned in the Order that, because the Tariff purported to charge
IXCs for providing access to individuals or entities to whom Northern
Valley offered telecommunications for free, the Tariff impermissibly
imposed access charges for services that were not the "functional
equivalent" of ILEC services. The Commission explained:
[U]nder the Commission's ILEC access charge regime, an "end user" is a
customer of a service that is offered for a fee. The Commission provided
no alternative definition for "end user" when stating, in the CLEC Access
Charge Reform Reconsideration Order, that a CLEC provides the functional
equivalent of ILEC services [within the meaning of rule 61.26] only if the
CLEC provides access to its "own end users." Accordingly, that order
establishes that a CLEC's access service is functionally equivalent only
if the CLEC provides access to customers to whom the CLEC offers its
services for a fee.
The Order required Northern Valley to "file tariff revisions ... to
provide that interstate switched access service charges will apply only to
the origination or termination of calls to or from an individual or entity
to whom Northern Valley offers telecommunications services for a fee."
A. We Dismiss the Northern Valley Petition Because It Is
5. The Northern Valley Petition repeats a number of arguments that the
Commission addressed and rejected in the Order. Northern Valley
reargues at length that a CLEC's relationship with its end users is
not relevant to determining whether it has provided access to IXCs,
and that "the `fee' relevant to switched access services is the fee a
customer pays to the IXC for long-distance traffic." Northern Valley
also again argues that the Order is inconsistent with the Commission's
precedent in Qwest v. Farmers, which according to Northern Valley
evaluated Northern Valley's tariff "based on the definitions contained
therein, not by prior orders or rules ..." We decline to revisit
these arguments here. It is "settled Commission policy that petitions
for reconsideration are not to be used for the mere reargument of
points previously advanced and rejected."
6. Northern Valley also presents for the first time several new legal
arguments regarding the CLEC Access Charge Orders and Qwest v. Farmers
that it previously had an opportunity to present in response to the
arguments in Qwest's Complaint. A petition for reconsideration that
relies on arguments not previously presented may be granted only if
(1) the petition relies on facts or arguments which relate to events
which have occurred or circumstances which have changed since the last
opportunity to present such matters to the Commission; (2) the
petition relies on facts or arguments unknown to petitioner until
after its last opportunity to present them to the Commission, and it
could not through the exercise of ordinary diligence have learned of
the facts or arguments in question prior to such opportunity; or (3)
the Commission determines that the public interest requires
consideration of the new arguments. The Northern Valley Petition does
not argue that it satisfies any of these three criteria. Further, we
are aware of no change in facts or circumstances that would warrant
reconsideration of the Order, and Northern Valley was aware or should
have been aware of the arguments it now presents because the Complaint
clearly alleged that Northern Valley's Tariff violated rule 61.26 as
clarified by the CLEC Access Charge Reform Reconsideration Order.
Moreover, we see no public interest justification for granting the
Northern Valley petition. Accordingly, reconsideration is not
warranted, and we dismiss the Northern Valley Petition.
A. In the Alternative, We Deny the Northern Valley Petition on the
7. Although we dismiss the petition for reconsideration on procedural
grounds, in the interest of ensuring a complete consideration of the
issues, we address below why we would reject Northern Valley's new
legal arguments were we to reach them. We accordingly deny the
Northern Valley Petition on the merits as an independent and
alternative basis for our decision.
1. The Order Is Supported by, and Consistent with, the Commission's
CLEC Access Charge Rules and Orders.
8. Northern Valley argues that rule 61.26, as clarified by the CLEC
Access Charge Reform Reconsideration Order, does not require that a
CLEC's tariffed access charges be for providing access to an
individual or entity to whom telecommunications are offered for a fee.
Northern Valley is incorrect. Rule 61.26 defines "CLEC" as "a local
exchange carrier that provides some or all of the interstate exchange
access services used to send traffic to or from an end user...." As
discussed in the Order, the Commission's ILEC access charge rules
have, for more than 25 years, defined "end user" to mean an individual
or entity to whom telecommunications are offered for a fee.
Consistent with precedent and rules of statutory construction, we find
that identical terms used in different but related Commission rules
should be construed to mean the same thing, unless the Commission
states otherwise. We therefore construe "end user" as used in rule
61.26 to mean an individual or entity to whom telecommunications are
offered for a fee. Further, rule 61.26 requires that tariffed CLEC
access charges be for services that are the "functional equivalent" of
ILEC access services. In the CLEC Access Charge Reform Reconsideration
Order, the Commission clarified that a CLEC provides the "functional
equivalent" of ILEC access charges within the meaning of rule 61.26
only if it provides access to its "end user." Therefore, as the Order
correctly concludes, a CLEC's access service is "functionally
equivalent" only if the CLEC provides access to its end user, or
9. Northern Valley disagrees with this analysis, contending that, because
the CLEC Access Charge Reform Reconsideration Order did not have
before it, and did not discuss, the question of whether a CLEC's
services are "functionally equivalent" if the CLEC provides access to
an entity to whom it provides free service, the order has no bearing
on that issue. According to Northern Valley, in stating that a CLEC
provides "functionally equivalent" service only if it provides access
to its "own end user," the CLEC Access Charge Reform Reconsideration
Order used the term "end user" merely to mean "the intended recipient
of a long distance call."
10. Despite its efforts to cabin the language of the CLEC Access Charge
Reform Reconsideration Order, Northern Valley does not explain why the
Commission did not specifically redefine "end user" in that order if
it intended the term to have a meaning other than "a paying customer."
As the Order explains, there is no indication that the term "end user"
as used in the CLEC Access Charge Reform Reconsideration Order was
intended to incorporate any different meaning than that which the
Commission has given it for more than 25 years. Moreover, the CLEC
Access Charge Reform Reconsideration Order's use of the term "end
user" is neither isolated nor serendipitous. The Commission in the
CLEC Access Charge Reform Reconsideration Order was clarifying rule
61.26, which, as discussed, uses "end user" to define the individual
or entity to whom a CLEC provides tariffed access. It defies logic to
conclude that the Commission in the CLEC Access Charge Reform
Reconsideration Order would have used "end user" differently from how
that term was used in the very rule it was clarifying. In short, "end
user" has a clear and established meaning in the context of the
Commission's access charge regime, and we therefore decline Northern
Valley's invitation to ignore the term's full import by disregarding
its "fee" requirement.
11. We note that it has been a longstanding policy of the Commission that
users of the local telephone network for interstate calls should be
responsible for a reasonable portion of the costs that they cause.
Thus, construing "end user" to mean a customer of a telecommunications
services offered for a fee is consistent with the Commission's goal of
ensuring that neither IXCs nor end users are charged an unfair share
of the LEC's costs in transporting interstate calls.
12. In addition to arguing that the Commission's CLEC access charge rules
do not address the facts at issue, Northern Valley contends that the
Order's requirement that tariffed CLEC access charges be for
transporting traffic to an end user "conflicts with the Commission's
long-standing precedent establishing that it does not regulate the
CLEC-end user relationship." According to Northern Valley, the Order
"demand[s]" that CLECs assess a fee on end users. The Order does no
such thing. Under the Order, Northern Valley may offer its services to
individuals and businesses for any fee (or no fee). The Order provides
only that, if Northern Valley chooses to assess access charges upon
IXCs by tariff, the individuals or entities to whom Northern Valley
provides access must be "end users" (i.e., paying customers).
1. The Order Is Consistent with the Commission's Farmers and Merchants
13. In Northern Valley's view, the Commission concluded in Qwest v.
Farmers that "a LEC could provide a `free subscription' to its local
exchange customer, so long as its tariff so provides." Northern Valley
maintains that this legal determination became final and is still the
law. According to Northern Valley, the Order "clearly conflicts with
the Commission's prior [Qwest v. Farmers] precedent, and the
Commission has offered no explanation for this departure." We disagree
with Northern Valley.
14. To begin with, there is no inconsistency between our initial decision
in Qwest v. Farmers and our decision here. The initial Qwest v.
Farmers decision was predicated on the understanding that the
conference calling companies were obligated to pay both for service
and the applicable subscriber line charge. Here, by contrast, the
tariff contains no requirement that the conference calling companies
pay anything at all for services. The initial decision in Qwest v.
Farmers thus has no bearing here. Even if the initial decision in
Qwest v. Farmers were somehow inconsistent with the current holding,
however, the Commission expressly reconsidered its finding in Qwest v.
Farmers that "[t]he question of whether the conference calling
companies paid Farmers more than Farmers paid them is ... irrelevant
to their status as end users." Upon reconsideration, the Commission
concluded that "the flow of money between [Farmers and the conference
calling companies] is essential to analyzing their relationship." In
so holding, the Commission specifically addressed the "free
subscription" language in Qwest v. Farmers (which Northern Valley
cites here), finding Farmers' "reliance on" the "free subscriptions"
characterization to be "unavailing" because new facts demonstrated
that the conference calling companies "did not subscribe" at all to
any tariffed service offered by Farmers. Thus, the Commission fully
explained the basis for its reconsideration of the initial decision.
15. Northern Valley nevertheless appears to argue that the Commission's
reconsideration of the Qwest v. Farmers had no effect because it was
issued more than 90 days after the initial decision and because the
Commission did not suspend the effectiveness of the initial order in
the meantime. That contention is beside the point because, as
explained, there is no inconsistency between the initial decision in
Qwest v. Farmers and any decision we render here. In any event, the
claim fails on its merits. The Commission complied with Section
405(b)(2) by granting reconsideration within 90 days. Even if the
Commission had not met the statutory deadline, that would not nullify
the effect of a subsequent reconsideration order. Section 405(b)(2) of
the Act says nothing about the Commission losing jurisdiction over the
underlying order if the Commission does not act within 90 days.
Northern Valley is also wrong that rule 1.106(n) required the
Commission to suspend the effectiveness of the initial Qwest v.
Farmers decision in order to retain authority to reconsider that
decision. That rule requires regulated entities to comply with an
order that is subject to a pending reconsideration proceeding unless
the Commission has suspended the effectiveness of the order. It has
nothing to do with suspension as a prerequisite for reconsideration.
As the Commission has explained, it "appropriately deferred ruling on
the merits [of Qwest's petition for reconsideration of Qwest v.
Farmers] pending completion of the Commission-initiated additional
proceedings" to compel production of and to consider previously
undisclosed evidence regarding Farmers' relationships with the
conference calling companies.
1. Northern Valley Fails to Demonstrate that the Order Should Be
16. Northern Valley makes two requests for clarification. First, Northern
Valley asks the Commission to clarify that the Order does not create a
"net payments" requirement. Because the question of "net payments" was
not at issue in the Complaint, and not necessary to our determination,
we do not address this issue here. Second, Northern Valley asks the
Commission to clarify the Order's declaration that, "a CLEC may not
impose switched access charges pursuant to tariff unless it is
providing interstate switched exchange access services to its own end
users, and ... an entity to whom the CLEC offers free service is not
an end user." Northern Valley is concerned that this language "could
be argued to prevent CLECs from offering any tariffed access services,
unless the CLEC serves its own end user." Northern Valley's concern is
unwarranted, as the Commission specifically noted in the Order that a
CLEC may offer tariffed access services to send traffic to an end user
not served by that CLEC under rule 61.26(f). Accordingly, because the
Order addressed and explained the very issue about which Northern
Valley seeks clarification, Northern Valley's request is denied.
* * *
17. In conclusion, we dismiss Northern Valley's Petition because it is
procedurally defective. On independent and alternate grounds, we deny
the Northern Valley Petition because the Order is entirely consistent
with, and supported by, the Commission's CLEC Access Charge Orders and
its Qwest v. Farmers precedent. Accordingly, there is no basis to
reverse or clarify any aspect of the Order.
A. We Dismiss the Aventure Petition.
18. Aventure, a rural CLEC that is not a party to this proceeding, also
asks the Commission to reconsider the Order. To seek reconsideration
of a Commission order in an adjudicatory proceeding to which it was
not a party, a petitioner must demonstrate that (1) the petitioner's
"interests are adversely affected" by the order; and (2) the
petitioner has "good reason why it was not possible for [the
petitioner] to participate in the earlier stages of the proceeding."
Aventure makes neither showing. Accordingly, we deny the Aventure
19. To begin, Aventure claims that it is adversely affected by the Order
because Aventure recently revised its tariff in a manner similar to
the Northern Valley tariff revisions at issue in this litigation, and
several IXCs have opposed the Aventure tariff revisions on the ground
that they violate the Order. According to Aventure, it is "now
compelled to incur the cost of replying to these oppositions, and may
be subjected to the same erroneous rulings that the Commission made"
in the Order. The mere precedential value of an adjudicatory order in
a section 208 complaint proceeding, however, does not "adversely
affect" a non-party to the adjudication within the meaning of section
405(a) of the Act and section 1.106 of the Commission's rules.
20. Aventure further claims that it had "no notice or opportunity to
participate in the proceeding that ultimately led to the issuance" of
the Order, because it was a "party-specific adjudication" that was
"restricted" for purposes of the Commission's ex parte rules. The
"restricted" nature of the proceeding means that all parties to the
proceeding must be included in "presentations" to Commission
decision-making personnel. It does not mean that the proceeding is
secret. Indeed, the Commission's website lists all pending section 208
formal complaint proceedings, and the pleadings filed in those cases
are available for review in the Commission's Reference Information
Center. Thus, with minimal effort, Aventure could have ascertained the
matters at issue in this proceeding and sought leave at a much earlier
stage to file an amicus brief or supporting memorandum of law to the
extent it believed it had or might have a stake in the outcome.
IV. ORDERING CLAUSEs
21. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), 201,
208, and 405 of the Communications Act of 1934, as amended, 47 U.S.C.
S:S: 151, 154(i), 154(j), 201, 208, and 405, and sections 1.106 and
61.26 of the Commission's rules, 47 C.F.R. S:S: 1.106 and 61.26, that
the Petition for Reconsideration or Clarification filed by Northern
Valley is DISMISSED to the extent indicated and is otherwise DENIED.
22. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), 208, and
405 of the Communications Act of 1934, as amended, 47 U.S.C. S:S: 151,
154(i), 154(j), 208, and 405, and section 1.106 of the Commission's
rules, 47 C.F.R. S: 1.106, that the Petition for Reconsideration filed
by Aventure is DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Petition for Reconsideration or Clarification of Northern Valley
Communications, LLC, File No. EB-11-MD-001 (filed July 7, 2011) ("Northern
Petition for Reconsideration of Aventure Communication Technology, L.L.C.,
File No. EB-11-MD-001 (filed July 7, 2011) ("Aventure Petition").
47 U.S.C. S: 405; 47 C.F.R. S: 1.106.
See Qwest Communications Company, LLC v. Northern Valley Communications,
LLC, Memorandum Opinion and Order, 26 FCC Rcd 8332 (2011) ("Order").
See Formal Complaint of Qwest Communications Company, LLC, File No.
EB-11-MD-001 (filed Jan. 6, 2011) ("Complaint").
47 U.S.C. S: 208.
Order, 26 FCC Rcd at 8341, P:P: 15-17.
See Order at P: 3. The Order contains a complete description of the facts
underlying this case, which we incorporate by reference. See Order, 26 FCC
Rcd at 8333-34, P:P: 3-4.
Order, 26 FCC Rcd at 8333, P: 3.
Order, 26 FCC Rcd at 8333-36, P:P: 4, 7. Specifically, the Tariff's
definition of "End User" stated, in relevant part, that an "End User need
not purchase any service provided by [Northern Valley]." Order at P: 4.
47 C.F.R. S: 61.26.
Access Charge Reform, Reform of Access Charges Imposed by Competitive
Local Exchange Carriers, Eighth Report and Order and Fifth Order on
Reconsideration, 19 FCC Rcd 9108 (2004) ("CLEC Access Charge Reform
47 U.S.C. S: 201(b). See Order, 26 FCC Rcd at 8332-33, P: 2.
47 C.F.R. S: 61.26 (heading).
47 C.F.R. S: 61.26(a)(3).
CLEC Access Charge Reform Reconsideration Order, 19 FCC Rcd at 9114, P: 13
Order, 26 FCC Rcd at 8336-37, P: 9.
Order, 26 FCC Rcd at 8336-37, P: 9.
Order, 26 FCC Rcd at 8341, P: 17 (emphasis added). On June 14, 2011,
Northern Valley filed revisions to the Tariff, which the Pricing Policy
Division of the Wireline Competition Bureau rejected on June 28, 2011. See
Northern Valley Communications, LLC Revisions to Tariff No. 3, Memorandum
Opinion and Order, 2011 WL 2577786 (WCB/PPD rel. June 28, 2011). Northern
Valley again filed revisions to the Tariff on July 7, 2011. Letter from G.
David Carter, Counsel for Northern Valley Communications, LLC, to
Marlene H. Dortch, Secretary, Federal Communications Commission,
Transmittal No. 7 (filed July 7, 2011). Those later revisions took effect
on July 22, 2011, over Qwest's objection. See Public Notice, Protested
Tariff Transmittal Action Taken, WCB/Pricing File No. 11-09, DA 11-1257
(WCB/CPD rel. July 28, 2011).
Compare Northern Valley Petition at i, 5-10 with Order, 26 FCC Rcd at
8336-38, P:P: 9-11.
See Qwest Commc'ns Corp. v. Farmers & Merchants Mut. Tel. Co., Memorandum
Opinion and Order, 22 FCC Rcd 17973 (2007) ("Qwest v. Farmers"). Compare
Northern Valley Petition at 16-19 with Order, 26 FCC Rcd at 8339, P: 12.
S&L Teen Hosp. Shuttle, Order on Reconsideration, 17 FCC Rcd 7899, 7900,
P: 3 (2002) (citations omitted). Cf. 47 C.F.R. S: 1.106(p)(3) (a Bureau
may dismiss or deny a petition for reconsideration of a Commission action
that "plainly do[es] not warrant consideration by the Commission,"
including petitions that "[r]ely on arguments that have been fully
considered and rejected by the Commission within the same proceeding").
See Northern Valley Petition at 10-19 (challenging the Order's application
of the CLEC Access Charge Orders and section 61.26 of the Commission's
rules and arguing that the Order is inconsistent with those orders and
rules, as well as prior precedent). See also Access Charge Reform, Reform
of Access Charges Imposed by Competitive Local Exchange Carriers, Seventh
Report and Order and Further Notice of Proposed Rulemaking, 16 FCC Rcd
9923 (2001) ("CLEC Access Charge Reform Order"), recon. denied CLEC Access
Charge Reform Reconsideration Order, 19 FCC Rcd 9108 (collectively, "CLEC
Access Charge Orders").
See 47 C.F.R. S: 1.106(c)(1)-(2), (b)(2)(ii). See also 47 C.F.R. S:S:
1.724(b) and (c) (requiring answer and legal analysis to fully and
completely respond specifically to all material allegations and arguments
raised in a formal complaint).
See Reply at 2-3 (Northern Valley justifies the Petition merely by
asserting that the merits of its new arguments warrant reconsideration of
See, e.g., Complaint, Exhibit A (Legal Analysis in Support of Qwest
Communications Company, LLC's Complaint ("Legal Analysis")) at 10-12
(discussing the rule 61.26 "functional equivalence" test and asserting
that, an "end user" under the Commission's access charge rules, the entity
must be charged a fee). See generally Reply at 9-16 Complaint at 7-10,
P:P: 10-14; 13-16, P:P: 27;
Northern Valley Petition at 13.
47 C.F.R. S: 61.26(a)(3) (emphasis added). Rule 61.26 also states that
"[i]f a CLEC provides some portion of the interstate switched exchange
access services used to send traffic to or from an end user not served by
that CLEC," the CLEC may charge only for those services it provides. 47
C.F.R. S: 61.26 (f) (emphasis added).
See Order at P:P: 5, 9-10 (explaining that the Commission's ILEC access
charge rules have, since their promulgation in 1983 in anticipation of the
AT&T divestiture, defined "end user" as "any customer of an interstate or
foreign telecommunications service that is not a carrier," and that a
"customer of a ... telecommunications service" is an individual or entity
to whom telecommunications are offered for a fee).
See, e.g., 73 Am. Jur. 2d Statutes S: 148 (2004) ("Ordinarily, the same
words used in different statutes on the same subject are interpreted to
have the same meaning. Indeed, if a special meaning is attached to certain
words in a prior act, there is a presumption of some force that the
legislature intended that they should have the same signification when
used in a subsequent act in relation to the same subject matter."); McLean
v. U.S.A., 566 F.3d 391, 396 (4th Cir. 2009) ("When Congress directly
incorporates language with an established legal meaning into a statute, we
may infer that Congress intended the language to take on its established
meaning."); Platt v. Wilmot, 193 U.S. 602, 611, 24 S. Ct. 542, 545 (1904)
(a term defined in one statutory provision means the same thing when used
in another provision).
Order at P: 8.
See Order at P:P: 8-9.
Northern Valley Petition at 10-12.
Northern Valley Petition at 10-13.
Order at P:P: 7-9. Certainly, if the Commission had intended a different
meaning, it could have employed a different word or phrase that does not
mean an individual or entity to whom services are offered for a fee. But
it did not do so. Cf. Florida Power & Light Co. v. Belcher Oil Co., 82
F.R.D. 78 (D.S.D. Fla. 1979) ("we should not be quick to assume accidental
or careless language on the part of the Congress ....") (citing Griffin v.
U.S., 537 F.2d 1130 (T.E.C.A. 1976), cert. denied, 429 U.S. 919).
See, e.g., Order at nn. 38-39 (discussing MTS and WATS Market Structure,
Memorandum Opinion and Order, 97 FCC 2d 682, 686, P: 7 (1983) ("The
concept that users of the local telephone network [for interstate calls]
should be responsible for the costs they actually cause is sound from a
public policy perspective and rings of fundamental fairness. It assures
that ratepayers will be able to make rational choices in their use of
telephone service, and it allows the burgeoning telecommunications
industry to develop in a way that best serves the needs of the country.");
CLEC Access Charge Reform Order, 15 FCC Rcd at 9939, P: 39 (stating that
CLECs should recover from their end users, not IXCs, their costs in
providing interstate access service that exceed those of the competing
Northern Valley Petition at 13-14 (capitalizations omitted).
Northern Valley Petition at 14. Northern Valley further notes that the
Commission does not require CLECs to impose the subscriber line charge
(SLC). Northern Valley Petition at 14-16. The June 7 Order does not
require CLECs to impose the SLC, and therefore does not conflict with
Commission precedent on that point.
Northern Valley Petition at 17. See n.21 supra.
Northern Valley Petition at 18.
Northern Valley Petition at 18.
Qwest v. Farmers, 22 FCC Rcd at 17987, P:P: 37-38.
See Qwest Commc'ns Corp. v. Farmers & Merchants Mut. Tel. Co., Second
Order on Reconsideration, 24 FCC Rcd 14801, 14806, P: 12 n.49 (2009)
("Qwest v. Farmers Recon. II").
Qwest v. Farmers Recon. II, 24 FCC Rcd at 14806, P: 12 n.49.
Qwest v. Farmers Recon. II, 24 FCC Rcd at 14805, P: 10 n.44.
See FCC v. Fox Television Stations, Inc., 129 S. Ct. 1800, 1811 (2009)
(any agency departing from a past position must supply a reasoned
explanation for its change). Farmers sought reconsideration of Qwest v.
Farmers Recon. II, which the Commission denied. See Qwest Commc'ns Corp.
v. Farmers & Merchants Mut. Tel. Co., Third Order on Reconsideration, 25
FCC Rcd 3422, 3422, P: 1 ("Qwest v. Farmers Recon. III"). Although Farmers
appealed that decision, unless and until it is reversed, it remains the
law. See Farmers & Merchants Mut. Tel. Co. of Wayland, Iowa v. FCC, No.
10-193 (D.C. Cir. filed May 10, 2010).
Northern Valley Petition at 18 & n.47 (citing 47 U.S.C. S: 405(b); 47
C.F.R. S: 1.106(n)). Northern Valley's argument is difficult to follow, in
large part because instead of articulating its argument fully, Northern
Valley relies on the brief it filed as an intervenor in the Qwest v.
Farmers appeal. The record in that appeal is not part of the record in
this case, however and we therefore decline to consider it in deciding
Pursuant to rule 1.106(k)(1)(iii), the Commission ordered additional
proceedings to take place subsequent to the grant of reconsideration. See
47 C.F.R. S: 1.106(k)(1)(iii) ("If the Commission ... grants the petition
for reconsideration in whole or in part, it may, in its decision ...
[o]rder such other proceedings as may be necessary or appropriate.") Those
additional proceedings did not trigger a second 90-day statutory
deadline. See 47 C.F.R. S: 1.106(k)(2) (if the Commission initiates such
further proceedings on grant of reconsideration, "a ruling on the merits
of the matter will be deferred pending completion of such proceedings.");
see also Qwest Commc'ns Corp. v. Farmers & Merchants Mut. Tel. Co., Third
Order on Reconsideration, 25 FCC Rcd 3422, 3424 P: 6(2010).
See Gottliev v. Pena, 41 F.3d 730, 733 (D.C. Cir. 1994).
Northern Valley Petition at i-ii, 19-23; Reply in Support of Petition for
Reconsideration or Clarification of Northern Valley Communications, LLC,
File No. EB-11-MD-003 (filed July 25, 2011) ("Reply") at 6-10.
Northern Valley Petition at 20-23.
Northern Valley Petition at 20 (citing Order at P: 11).
Northern Valley Petition at 20 (emphasis added).
Order, 26 FCC Rcd at 8336, P: 8 n.30. 47 C.F.R. S: 61.26(f).
See Aventure Petition at 2.
47 C.F.R. S: 1.106(b)(1).
Aventure Petition at 4-5.
Aventure Petition at 5.
AT&T Corp. v. Business Telecom, Inc., Order on Reconsideration, 16 FCC Rcd
21750, 21752-53, P:P: 6-7 (2001) (finding that "the adverse impact of a
Commission action on a person's litigation strategy in another Commission
proceeding does not meet the `adversely affected' test") (citations
omitted). Moreover, the Commission has held that "to grant non-party
requests to reconsider Commission adjudicatory orders based upon the
[precedential effect of an adjudicatory order] would open the `floodgates'
to non-party participation in adjudicatory proceedings, and thus
effectively convert every adjudicatory proceeding into a rulemaking
proceeding." Id. at 21753, P: 7 (citations omitted).
Aventure Petition at 5.
See 47 C.F.R. S:S: 1.1202(b), 1.1208.
We note that Aventure does not claim that it lacked awareness of this
proceeding. Indeed, counsel for Aventure and counsel for Northern Valley
are partners on the twelve-person "Telecommunications Team" in the same
law firm. See http://www.arentfox.com/practices/telecom/index.cfm?fa=team.
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Federal Communications Commission FCC 11-148
Federal Communications Commission FCC 11-148