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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20554
Texcom, Inc., d/b/a Answer )
Indiana, )
)
Complainant, )
) File No. EB-00-MD-14
v. )
)
Bell Atlantic Corp., d/b/a )
Verizon Communications, )
)
Defendant.
ORDER ON RECONSIDERATION
Adopted: March 25, 2002 Released: March 27, 2002
By the Commission:
I. INTRODUCTION
In this Order on Reconsideration, we deny the Petition
for Reconsideration of our Memorandum Opinion and Order1 in the
above-captioned matter filed by Texcom, Inc. d/b/a Answer Indiana
(``Answer Indiana'').2 In the Answer Indiana Order, the
Commission denied Answer Indiana's complaint alleging that Bell
Atlantic Corp., d/b/a Verizon Communications (``GTE North''), an
incumbent local exchange carrier (``LEC''), violated section
51.703 of our rules3 by charging Answer Indiana, a commercial
mobile radio service (``CMRS'') carrier, for traffic that
originates on a third carrier's network, transits GTE North's
network, and terminates on Answer Indiana's network. In the
instant Petition for Reconsideration, Answer Indiana raises
several grounds to support its contention that the Commission's
decision in the Answer Indiana Order is erroneous. The
Commission thoroughly considered and rejected all but one of
these arguments in the original proceeding and Answer Indiana
provides us with insufficient justification to revisit our
earlier decision. The remaining argument is without merit.
Accordingly, we deny the Petition for Reconsideration.
2. We also dismiss the Petition for Reconsideration of our
Answer Indiana Order that Small Business in Telecommunications
(``SBT'') filed.4 SBT's petition is substantively similar to one
it filed in the TSR Wireless proceeding.5 There, the Commission
dismissed SBT's petition because SBT, a non-party to the
proceeding, failed to ``state with particularity the manner in
which . . . [its] interests are adversely affected by the action
taken, and . . . show good reason why it was not
possible . . . to participate in the earlier stages of the
proceeding.''6 SBT is a non-party in this proceeding as well,
and its petition suffers from the same defect as the one we
rejected in the TSR Wireless proceeding. Therefore, we dismiss
SBT's current Petition for Reconsideration.7
II. DISCUSSION
3. This case involves only calls that travel over the
networks of three carriers: the originating third-party carrier,
GTE North, and then Answer Indiana. Answer Indiana contends that
GTE North already receives compensation via reciprocal
compensation and access charges for the facilities that
interconnect GTE North's network with Answer Indiana's network.8
Thus, according to Answer Indiana, the Commission should not
allow GTE North to recover twice (or engage in ``double
recovery'') for these facilities.9 We considered and rejected
Answer Indiana's double recovery allegations in the Answer
Indiana Order.10 Answer Indiana provides no new grounds for us
to reconsider our earlier decision.
4. Nevertheless, we take this opportunity to address in
additional detail Answer Indiana's contention that GTE North
already receives reciprocal compensation for the cost of the
facilities that interconnect GTE North's network with Answer
Indiana's network. Answer Indiana's argument assumes that GTE
North receives reciprocal compensation from the originating
carrier, but our reciprocal compensation rules do not provide for
such compensation to a transiting carrier. Our rules provide a
mechanism for a terminating carrier, such as Answer Indiana, to
recover from originating carriers the cost of the facilities at
issue (transport from the point of interconnection at the LEC
tandem to the terminating carrier's switch).11 GTE North is not
a terminating carrier, however, and as we noted in the Answer
Indiana Order, Answer Indiana has presented no evidence that GTE
North actually recovers the cost of facilities used in transiting
traffic through reciprocal compensation. As we stated in the TSR
Wireless Order, a LEC may charge a terminating carrier for the
portion of facilities used to deliver transiting traffic to the
terminating carrier.12 Thus, GTE North may charge Answer Indiana
for the cost of the portion of these facilities used for
transiting traffic, and Answer Indiana may seek reimbursement of
these costs from originating carriers through reciprocal
compensation.13
5. Answer Indiana also argues that the Commission erred by
not adopting Answer Indiana's position that GTE North is the
originating carrier for all traffic reaching Answer Indiana's
network, even that traffic that only transits GTE North's
network. Answer Indiana claims that by refusing to adopt its
definition of ``originates'' in the Answer Indiana Order, the
Commission misconstrued the Local Competition Order and section
51.709(b) of our rules.14 We thoroughly considered and rejected
this argument in the Answer Indiana Order, and Answer Indiana
provides no new reason to reconsider our prior conclusion.15
6. Answer Indiana reiterates its argument that footnote 70
of the TSR Wireless Order, stating that LECs may charge CMRS
carriers for the portion of facilities used to transport
transiting traffic, is a misstatement of the law and contrary to
the Local Competition Order.16 Because we fully considered and
rejected this argument in the Answer Indiana Order, we will not
address it again here.17
7. In its final ground for reconsideration, Answer Indiana
argues that GTE North wrongfully refused to provide discovery to
Answer Indiana.18 Answer Indiana, however, failed to file a
motion to compel or otherwise formally contest the adequacy of
GTE North's discovery responses during the original proceeding.
Accordingly, we decline to consider Answer Indiana's objections
to the adequacy of GTE North's discovery responses at this late
date.19
III. ORDERING CLAUSES
8. Accordingly, IT IS ORDERED, pursuant to sections 1,
4(i), 4(j), 208, and 405 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 154(i), 154(j), 208, 405, and section
1.106 of our rules, 47 C.F.R. § 1.106, that the Petition for
Reconsideration filed by Answer Indiana IS DENIED.
9. 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. §§ 151, 154(i), 154(j), 208, 405, and section 1.106 of
our rules, 47 C.F.R. § 1.106, that the Petition for
Reconsideration filed by SBT IS DISMISSED.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary
_________________________
1 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) (``Answer Indiana Order'').
2 Petition for Reconsideration of Memorandum Opinion and
Order, File No. EB-00-MD-014 (filed Dec. 27, 2001).
3 See 47 C.F.R. § 51.703.
4 SBT Petition for Reconsideration, File No. EB-00-MD-14
(filed Dec. 28, 2001).
5 SBT Petition for Reconsideration or Clarification, File Nos.
E-98-13, E-98-15, E-98-16, E-98-17, E-98-18 (filed July 21,
2000).
6 See TSR Wireless, LLC v. U S West Communications, Inc.,
Order on Reconsideration, 16 FCC Rcd 11462, 11462-63, ¶ 2 (2001)
(quoting 47 C.F.R. § 1.106(b)).
7 See also AT&T Corp. and Sprint Communications Co., L.P. v.
Business Telecom, Inc., Order on Reconsideration, 2001 WL 1142305
(rel. Sep. 27, 2001) (dismissing non-parties' petitions for
reconsideration of a Commission order in a formal complaint
proceeding on the same grounds as stated in the TSR Wireless
Order on Reconsideration cited supra n.6).
8 See Petition for Reconsideration of Memorandum Opinion and
Order, File No. EB-00-MD-14, at 3-10, ¶¶ 5-15 (first ground
regarding reciprocal compensation), 15-19, ¶¶ 25-29 (fourth
ground regarding access charges) (filed Dec. 27, 2001) (``Answer
Indiana Petition'').
9 See Answer Indiana Petition at 3-4, ¶ 5, at 9-10, ¶ 15, at
16-19, ¶¶ 26-29, at 22-23, ¶¶ 32-33.
10 See Answer Indiana Order at 5-6, ¶¶ 11-13.
11 See Implementation of the Local Competition Provisions of
the Telecommunications Act of 1996; Interconnection Between Local
Exchange Carriers and Commercial Mobile Radio Service Providers,
Memorandum Opinion and Order, 11 FCC Rcd 15499, 16015, ¶ 1039
(1996) (``Local Competition Order'') (subsequent history omitted)
(``We define `transport,' for purposes of section 251(b)(5), as
the transmission of terminating traffic that is subject to
section 251(b)(5) from the interconnection point between the two
carriers to the terminating carrier's end office switch that
directly serves the called party (or equivalent facility provided
by a non-incumbent carrier). Many alternative arrangements exist
for the provision of transport between the two
networks . . . [including] facilities provided by alternative
carriers ... .''). For purposes of reciprocal compensation,
transport includes tandem switching. See 47 C.F.R. § 51.701(c).
12 See 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 v. FCC,
252 F.3d 462 (D.C. Cir. 2001). While the cost of using the
facilities at issue typically is recovered through reciprocal
compensation charges to originating carriers, we note that
carriers are free to negotiate different arrangements for the
costs associated with indirect interconnection. See, e.g., 47
U.S.C. § 252 (a)(1).
13 See 47 U.S.C. § 251(b)(5); 47 C.F.R. §§ 51.701, et seq.
14 See Answer Indiana Petition at 10-12, ¶¶ 16-20 (second
ground regarding Local Competition Order); id. at 12-15, ¶¶ 21-24
(third ground regarding section 51.709(b) or our rules). See
also 47 C.F.R. § 51.709(b).
15 See Answer Indiana Order at 4, ¶¶ 9-10.
16 See Answer Indiana Petition at 20-22, ¶¶ 30-31; see TSR
Wireless Order, 15 FCC Rcd at 11177, ¶ 19 n.70.
17 See Answer Indiana Order at 3, ¶¶ 5-6.
18 See Answer Indiana Petition at 22-23, ¶¶ 32-33.
19 See 47 C.F.R. § 1.106(c).