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Before the
Federal Communications Commission
Washington, D.C. 20554
)
)
)
North County Communications Corp.,
)
Complainant,
)
v. File No. EB-06-MD-007
)
MetroPCS California, LLC,
)
Defendant.
)
)
)
Memorandum opinion and order
Adopted: March 30, 2009 Released: March 30, 2009
By the Chief, Enforcement Bureau:
I. introduction
1. In this Memorandum Opinion and Order, we dismiss in part and otherwise
deny the claims alleged in the formal complaint that North County
Communications Corp. ("North County") filed against MetroPCS
California, LLC ("MetroPCS") under section 208 of the Communications
Act of 1934, as amended ("Act"). In short, the Complaint alleges that
MetroPCS violated sections 201(b), 202(a), and 251(b)(5) of the Act,
and sections 20.11, 51.301, and 51.715 of the Commission's rules, by
(a) failing to pay North County for the transport and termination of
intrastate traffic originated by MetroPCS; (b) failing to establish an
interim reciprocal compensation arrangement with North County for the
transport and termination of intrastate traffic originated by
MetroPCS; and (c) failing to enter into a final interconnection
agreement with North County for the transport and termination of
intrastate traffic originated by MetroPCS.
2. As explained below, we dismiss Count I of the Complaint without
prejudice because North County should first obtain from the California
Public Utilities Commission ("PUC") a determination of a reasonable
compensation rate. We deny Counts II and IV of the Complaint because
the Commission rules upon which those Counts are predicated apply only
to incumbent local exchange carriers ("incumbent LECs"), and neither
North County nor MetroPCS is an incumbent LEC. Finally, we deny Counts
III and V of the Complaint because the record does not demonstrate a
violation of either section 201(b) or section 202(a) of the Act.
II. background
3. North County is a licensed competitive local exchange carrier ("CLEC")
that provides switched and non-switched local exchange, exchange
access, and other telecommunications services in California. Most, if
not all, of North County's end user customers are either chat-line
providers or telemarketers.
4. MetroPCS is a Commercial Mobile Radio Service ("CMRS") carrier that
provides wireless communications services in California. MetroPCS is
indirectly interconnected with North County in California through the
switching facilities of other local exchange carriers ("LECs").
MetroPCS does not have a written interconnection agreement with North
County.
5. All of the traffic exchanged between North County and MetroPCS at
issue here is jurisdictionally intraMTA and intrastate (hereinafter
"intrastate" traffic). Moreover, all of the traffic exchanged between
the parties is in-bound to North County from MetroPCS. That is because
North County's chat line provider customers generate no outbound
calls, and, according to North County, legal restrictions preclude its
telemarketer customers from calling wireless phones.
6. Despite the absence of a written interconnection agreement with
MetroPCS, North County began billing MetroPCS for the termination of
intrastate traffic sometime in 2003. MetroPCS has not paid North
County any amount of money for the traffic terminated by North County.
In MetroPCS' view, a default "bill-and-keep" arrangement exists,
whereby neither party pays the other for traffic termination. Between
August 2005 and approximately June 2006, North County and MetroPCS
attempted to negotiate a written interconnection agreement, without
success.
7. Upon reaching an impasse in its negotiations with MetroPCS regarding a
written interconnection agreement, North County filed its Complaint.
Count I of the Complaint alleges that MetroPCS is violating rule
20.11(b) by failing to pay North County for terminating traffic
originated on MetroPCS' network. Count II of the Complaint alleges
that MetroPCS is violating section 251(b)(5) of the Act and rule
51.301 by failing to negotiate and execute a written interconnection
agreement with North County in good faith. Counts III and V of the
Complaint allege that MetroPCS is violating sections 201(b) and 202(a)
of the Act, respectively, by refusing to enter into a written
interconnection agreement with North County. Count IV of the Complaint
alleges that MetroPCS is violating rule 51.715 by refusing to enter
into an interim interconnection agreement with North County. The
Complaint asks the Commission to issue an order (i) prescribing a rate
for terminating intrastate traffic between the parties at or above the
rate billed by North County to MetroPCS, and (ii) awarding North
County past due amounts consistent with the Commission's prescribed
intrastate termination rate, plus reasonable interest.
III. Discussion
A. Count I of the Complaint is Dismissed Without Prejudice So That
the California PUC May First Determine a Reasonable Compensation
Rate.
8. Rule 20.11(b) provides, in pertinent part, that "[a] commercial mobile
radio service provider shall pay reasonable compensation to a local
exchange carrier in connection with terminating traffic that
originates on the facilities of the commercial mobile radio service
provider." Count I of the Complaint alleges that MetroPCS is violating
that rule by failing to pay for North County's termination of
intrastate traffic originated by MetroPCS.
9. We decline to determine, in the first instance, what constitutes
"reasonable compensation" in this case. The Commission has repeatedly
held that (i) states have authority under section 2(b) of the Act to
establish rates charged by LECs for termination of intrastate traffic
from CMRS providers, and (ii) the Commission has not preempted such
state authority. Thus, the more appropriate venue for determining what
constitutes "reasonable compensation" for North County's termination
of intrastate traffic originated by MetroPCS is not this Commission,
but rather the California PUC, via whatever procedural mechanism it
deems appropriate under state law (e.g., complaint proceeding,
declaratory ruling proceeding, generic cost or rulemaking proceeding).
In turn, unless and until what constitutes reasonable compensation for
North County's termination of intrastate traffic originated by
MetroPCS is determined, the Commission cannot determine whether or to
what extent MetroPCS has violated its duty under rule 20.11(b)(2) to
pay such compensation. Accordingly, we dismiss without prejudice Count
I of the Complaint. If after the California PUC prescribes a
reasonable rate North County believes that MetroPCS has failed to pay
what is owed pursuant to that rate under rule 20.11(b)(2), then North
County may seek resolution of that dispute at that time.
10. In North County's view, because rule 20.11(a) permits parties to file
complaints under section 208 of the Act alleging violations of rule
20.11(b)(2), rule 20.11(a) implicitly requires the Commission to
determine what a reasonable compensation rate under rule 20.11(b)(2)
is in this complaint proceeding. According to North County, "[a]n
ability to adjudicate a refusal to pay compensation without an ability
to adjudicate the rate is nonsensical." We disagree. Construing the
Commission's adjudicatory role under rule 20.11 as permitting states
to determine in the first instance whether the charged rate is
reasonable is perfectly consistent with the plain language of rule
20.11 and with the Commission's multiple orders - including the order
adopting rules 20.11(a)-(b) - expressly declining to preempt state
authority to establish intrastate rates charged by LECs to terminate
traffic from CMRS providers. Indeed, in an order inaptly relied upon
by North County, the Commission squarely held that, "although LECs
were required to pay mutual compensation to CMRS carriers [and
vice-versa] for intrastate traffic pursuant to [rule 20.11] ..., the
determination of the actual rates charged for intrastate
interconnection would be left to the states." Thus, North County's
interpretation of rule 20.11(a) is wrong.
11. MetroPCS argues that allowing the California PUC to establish a
reasonable compensation rate for North County's termination of
intrastate traffic would violate section 332(c)(3)(A) of the Act,
which provides, in pertinent part, that "no State or local government
shall have any authority to regulate the ... rates charged by any
commercial mobile service...." That position is not supported by
Commission precedent. The rates charged by North County to MetroPCS
for transport and termination are not "rates charged by any commercial
mobile service" within the meaning of section 332(c)(3)(A) of the Act.
The Commission has interpreted section 332(c)(3)(A) to prohibit States
from "prescribing, setting or fixing" rates, and determined that the
proscription extends to regulation of rate levels and structures for
CMRS, including how much may be charged for CMRS. Thus, the Commission
has stated that this provision applies to retail charges to end users
of CMRS, rather than to termination charges to other carriers
associated with CMRS. In other words, by explicitly declining to
preempt state regulation of intrastate rates that LECs charge CMRS
providers for termination after the passage of section 332(c)(3)(A) of
the Act, the Commission has not applied section 332(c)(3)(A) to such
intercarrier rates. Therefore, allowing the California PUC to
establish a reasonable compensation rate for North County's
termination of intrastate traffic does not conflict with section
332(c)(3)(A) of the Act.
12. North County and MetroPCS also contend that allowing the California
PUC to establish a reasonable compensation rate for North County's
termination of intrastate traffic would conflict with the Commission's
decision in its T-Mobile Declaratory Ruling, which permits incumbent
LECs, but not CLECs, to invoke the state arbitration procedures of
section 252 of the Act to reach interconnection agreements with CMRS
carriers. We disagree. The T-Mobile Declaratory Ruling expressly
acknowledges the Commission's prior orders declining to preempt state
regulation of intrastate rates that LECs charge CMRS providers for
termination, and then does not alter or overrule those orders.
Moreover, the T-Mobile Declaratory Ruling addresses a carrier's power
to invoke the state arbitration processes specifically authorized by
section 252 of the Act, but does not purport to address a state's
general authority to regulate rates for intrastate traffic as
preserved by section 2(b) of the Act. Therefore, allowing the
California PUC to establish a reasonable compensation rate for North
County's termination of intrastate traffic pursuant to its general
authority to regulate intrastate traffic does not conflict with the
T-Mobile Declaratory Ruling.
13. MetroPCS further asserts that rule 20.11 does not apply at all to the
traffic at issue here, because such traffic is not
"telecommunications" under section 3(43) of the Act. To support that
assertion, MetroPCS observes that "telecommunications" only includes
the transmission of information "between or among points specified by
the user," and callers to chat lines do not specify the particular
person(s) with whom he/she is going to communicate. Even assuming that
the obligation to pay reasonable compensation for termination of
traffic under rule 20.11 only applies to traffic that meets the
definition of "telecommunications" at section 3(43) of the Act,
MetroPCS' assertion lacks merit. The completion of calls from
MetroPCS' customers to North County's customers is "transmission." In
addition, the chat line itself is sufficient to constitute the
"point[] specified by the user" as used in the definition of
"telecommunications." Thus, the calls to chat lines at issue here
satisfy the statutory definition of "telecommunications."
14. Finally, MetroPCS proffers several policy arguments why, despite past
Commission rulings to the contrary, we should effectively preempt the
California PUC's authority to regulate North County's intrastate
termination rates as applied to CMRS carriers. Without commenting one
way or another on the merits of MetroPCS's policy arguments, we
decline MetroPCS's suggestion to preempt such state authority in the
context of this complaint proceeding. Whether to depart so
substantially from such long-standing and significant Commission
precedent is a complex question better suited to a more general
rulemaking proceeding.
15. For the foregoing reasons, we conclude that the California PUC is the
more appropriate venue for determining a reasonable termination rate.
Accordingly, we dismiss without prejudice the claim in Count I of the
Complaint that MetroPCS is violating rule 20.11 by failing to pay for
North County's termination of intrastate traffic originated by
MetroPCS.
A. We Deny Counts II and IV of the Complaint, Because Section 251(b)(5)
of the Act and Sections 51.301 and 51.715 of the Commission Rules Do
Not Apply to MetroPCS.
16. Count II of the Complaint alleges that MetroPCS is violating section
251(b)(5) of the Act by failing to negotiate and enter into a written
reciprocal compensation arrangement with North County. Section
251(b)(5) imposes a duty to establish reciprocal compensation only
upon LECs. Moreover, the Commission has stated unequivocally that
"CMRS providers will not be classified as LECs and are not subject to
the obligations of section 251(b)." Therefore, as a CMRS provider,
MetroPCS is not subject to the obligations arising directly from
section 251(b) itself. Accordingly, we deny North County's claim in
Count II of the Complaint that MetroPCS is violating section 251(b)(5)
of the Act.
17. Counts II and IV of the Complaint also allege that MetroPCS is
violating sections 51.301 and 51.715 of the Commission's rules by
refusing to negotiate or execute in good faith either an interim or a
final rate for the transport and termination of intrastate
telecommunications traffic. To support these allegations, North County
argues that rules 51.301 and 51.715 apply to CMRS providers such as
MetroPCS by virtue of rule 20.11(c), which provides, in pertinent
part, that "[l]ocal exchange carriers and commercial mobile radio
service providers shall also comply with applicable provisions of part
51" of the Commission's rules.
18. We reject North County's assertion that rule 20.11(c) expands the
scope of rules 51.301 and 51.715 to reach CMRS providers such as
MetroPCS. Under rule 20.11(c), CMRS providers must comply only with
"applicable" provisions of part 51. Rules 51.301 and 51.715 apply to
negotiations between an incumbent LEC and a requesting
telecommunications carrier. Because neither MetroPCS nor North County
is an incumbent LEC, rules 51.301 and 51.715 are not "applicable"
provisions of part 51 within the meaning of rule 20.11(c). Thus, North
County has failed to state a claim under rules 51.301 and 51.715.
Accordingly, we deny North County's claim in Count II of the Complaint
that MetroPCS is violating rule 51.301, and we deny North County's
claim in Count IV of the Complaint that MetroPCS is violating rule
51.715.
A. We Deny Count III of the Complaint, Because MetroPCS' Failure to
Negotiate an Interconnection Agreement With North County Does Not
Violate Section 201(b) of the Act.
19. Count III of the Complaint alleges that MetroPCS' refusal to enter
into an interconnection agreement with North County to pay for
terminating intrastate traffic constitutes an unjust and unreasonable
practice under section 201(b) of the Act. Specifically, North County
alleges that MetroPCS is "unreasonably delay[ing] negotiation of an
interconnection agreement in order to avoid paying termination
services as long as possible." In particular, North County alleges
that MetroPCS is "making unsupported allegations that it is entitled
to free termination until such time as the parties enter an
interconnection agreement." In addition, North County alleges that,
during the parties' negotiations, MetroPCS refused to substantiate
alleged discrepancies in North County's billed minutes of use and
MetroPCS' measured minutes of use. North County also maintains that
MetroPCS has continued to send traffic to North County each month even
though North County has requested that MetroPCS stop doing so. North
County argues that these facts, viewed in their totality, demonstrate
that MetroPCS has violated section 201(b) of the Act by unreasonably
delaying negotiation of an interconnection agreement to avoid paying
for intrastate termination services as long as possible.
20. Based on our careful review of the entire record, we conclude that
North County has failed to prove by a preponderance of the evidence
that the parties' inability to reach an agreement regarding
termination of intrastate traffic stems from unreasonable conduct by
MetroPCS. Rather, the record clearly demonstrates that the parties'
inability to reach an agreement regarding termination of intrastate
traffic stems from irreconcilable but honestly held beliefs regarding
the compensation rate, which, in turn, stem from good faith
disagreements. These bona fide disputes - and not any illegitimate
posturing by MetroPCS (or North County) - are what ultimately
precluded the parties from reaching an agreement. Therefore, we deny
the claim in Count III of the Complaint that MetroPCS is violating
section 201(b) of the Act by failing to enter into an agreement to pay
for North County's termination of intrastate traffic.
A. We Deny Count V of the Complaint, Because MetroPCS Has Not Violated
Section 202(a) of the Act.
21. Count V of the Complaint alleges that MetroPCS' "refusal to enter into
an interconnection agreement that provides a comparable rate for like
termination services constitutes unjust and unreasonable
discrimination" under section 202(a) of the Act. Specifically, North
County contends that MetroPCS has negotiated and paid reasonable
termination rates for intrastate traffic with other carriers, but
refuses to do so with respect to North County. North County asserts
that this conduct violates the non-discrimination requirement of
section 202(a) of the Act.
22. We disagree. Section 202(a) is inapplicable where, as here, the
challenged conduct - refusing to pay "a comparable rate for
[allegedly] like termination services" - is that of the carrier
receiving the communication service rather than the carrier providing
the service. Notably, North County does not base its section 202(a)
claim on services provided by MetroPCS at all, but on alleged
similarities between North County's own termination services and the
termination services of other carriers. As the Commission has
explained, however, "[s]ection 202(a) is not concerned with whether
the services of two separate carriers are `like'; it is concerned with
whether two services offered by the same carrier are like." There is
no dispute that North County, not MetroPCS, is the carrier providing
the communication service in question here. Thus, MetroPCS'
willingness or obligation to pay other carriers a different rate for
terminating intrastate traffic than what it is willing to pay North
County for terminating services does not fall within the scope of
section 202(a) of the Act.
23. In sum, North County has failed to state a claim under section 202(a)
of the Act. Accordingly, we deny North County's claim in Count V of
the Complaint that MetroPCS is violating section 202(a) of the Act.
A. We Deny MetroPCS' Motion for Sanctions.
24. MetroPCS requests that the Commission impose sanctions against North
County for an alleged violation of the Commission's ex parte rules.
Specifically, MetroPCS seeks sanctions because North County allegedly
violated the Commission's ex parte rules by soliciting a prohibited ex
parte presentation by Congressman Bob Filner. North County has opposed
the request.
25. Congressman Filner's November 17, 2008 letter to Commissioner McDowell
supported North County's attempts to meet with Commission staff to
expedite resolution of this proceeding and, in doing so, also
characterized the matters at issue in this proceeding in a manner that
can be construed as favorable to North County. The letter contained no
indication that it was served on MetroPCS. It was, however, put into
the record and served on MetroPCS by North County on November 21, 2008
as an attachment to a pleading. Because this proceeding is classified
as restricted under the ex parte rules, we find that Congressman
Filner's letter is a prohibited ex parte presentation. We reject North
County's contention that the letter should be deemed a status inquiry
that would be permissible under the ex parte rules, rather than a
prohibited presentation.
26. The Commission's ex parte rules prohibit the solicitation of improper
presentations. We find, however, that even if North County solicited
Congressman Filner's letter, there is no justification for imposing
any sanction against North County, other than an admonition to comply
with the ex parte rules in the future. The circumstances do not
suggest either that North County sought to conceal Congressman
Filner's communication with the Commission or that MetroPCS was
prejudiced by the ex parte nature of Congressman Filner's letter.
North County has shown a general awareness of and willingness to
comply with the ex parte rules by copying MetroPCS on its e-mail
traffic regarding its desire to meet with Commission staff. Moreover,
only four days after Congressman Filner's letter, and before MetroPCS
complained of an ex parte violation, North County served a copy of the
letter on MetroPCS as an attachment to a pleading. These facts readily
distinguish this case from prior cases in which the Commission imposed
sanctions for more egregious violations.
27. As a related matter, we see no basis to find that Congressman Filner's
letter represents improper intrusion into the Commission's
adjudicative process. The Commission has recognized that certain
intrusions by Congress into administrative decision-making may deprive
parties of due process. An evaluation of whether such improper
intrusion has occurred turns on two factors: (1) whether there is an
appearance of bias, and (2) whether congressional pressure actually
affected the outcome. In this regard, the analysis focuses on whether
congressional influence shaped the agency's decision on the merits.
Simply stating a Member of Congress' views on the merits without a
showing that the communication biased the agency's decision does not
constitute improper influence.
28. We do not believe that our decision on the merits above can be seen as
affected by the contents of Congressman Filner's letter. First,
Congressman Filner's letter presented a viewpoint on the merits almost
as an aside to his views on timing. More importantly, the record
supports, and this Order reaches, an outcome different from the one
apparently advocated by Congressman Filner. Thus, we deny MetroPCS'
Motion for Sanctions.
IV. ordering clauses
29. IT IS ORDERED, pursuant to sections 4(i), 4(j), 201, 208, and 332 of
the Communications Act of 1934, as amended, 47 U.S.C. S:S: 154(i),
154(j), 201, 208, and 332, and sections 1.721-1.736, 20.11, and 51.711
of the Commission's rules, 47 C.F.R. S:S: 1.721-1.736, 20.11, and
51.711, and the authority delegated in sections 0.111 and 0.311 of the
Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that Count I of the
Complaint is DISMISSED WITHOUT PREJUDICE.
30. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), 201, 202, 208,
251(b)(5), and 332 of the Communications Act of 1934, as amended, 47
U.S.C. S:S: 154(i), 154(j), 201, 202, 208, 251(b)(5), and 332, and
sections 1.721-1.736, 51.301 and 51.715 of the Commission's rules, 47
C.F.R. S:S: 1.721-1.736, 51.301, and 51.715, and the authority
delegated in sections 0.111 and 0.311 of the Commission's rules, 47
C.F.R. S:S: 0.111, 0.311, that Counts II, III, IV and V of the
Complaint are DENIED.
31. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 208 of the
Communications Act of 1934, as amended, 47 U.S.C. S:S: 154(i), 154(j),
and 208, and sections 1.721-1.736 of the Commission's rules, 47 C.F.R.
S:S: 1.721-1.736, and the authority delegated in sections 0.111 and
0.311 of the Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that
MetroPCS California, LLC's Motions for Judicial Notice are GRANTED.
32. IT IS FURTHER ORDERED, pursuant to sections 4(i), 4(j), and 208 of the
Communications Act of 1934, as amended, 47 U.S.C. S:S: 154(i), 154(j),
and 208, and sections 1.721-1.736 of the Commission's rules, 47 C.F.R.
S:S: 1.721-1.736, and the authority delegated in sections 0.111 and
0.311 of the Commission's rules, 47 C.F.R. S:S: 0.111, 0.311, that
North County Communications Corp.'s Motion to Strike Portions of
MetroPCS' Brief in Opposition, MetroPCS California, LLC's Motion
Requesting Supplemental Briefing, and MetroPCS California, LLC's
Motion Requesting Sanctions Against North County are DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Second Amended Complaint, File No. EB-06-MD-007 (filed Aug. 24, 2006)
("Complaint").
47 U.S.C. S: 208.
47 U.S.C. S:S: 201(b), 202(a), and 251(b)(5).
47 C.F.R. S:S: 20.11, 51.301, and 51.715.
See, e.g., Complaint at 15-16, P:P: 64-68 (Count I); 16-19, P:P: 69-76
(Count II); 19-20, P:P: 77-86 (Count III); 20-22, P:P: 87-94 (Count IV);
and 22-23, P:P: 95-103 (Count V).
See, e.g., Third Further Supplemental Joint Statement, File No.
EB-06-MD-007 (filed Jan. 8, 2007) ("Joint Statement") at 12, P: 64.
See, e.g., Joint Statement at 12, P: 61; Response to Commission's February
2, 2007 Letter, File No. EB-06-MD-007 (filed Feb. 9, 2007) ("Feb. 9
Stipulation") at 1; Initial Brief of North County Communications Corp.,
File No. EB-06-MD-007 (filed Sept. 28, 2007) ("North County Initial
Brief") at 29-30. For purposes of this Order, a "chat-line provider"
offers a service that "combine[s] multiple incoming calls that happen to
arrive in a common time frame, but are otherwise unscheduled by the
parties and may result in connecting callers who are unknown to one
another." Feb. 9 Stipulation at 1.
See, e.g., Joint Statement at 1, P: 2; MetroPCS California, LLC's Amended
Answer to North County's Second Amended Complaint, File No. EB-06-MD-007
(filed Oct. 19, 2006) ("Amended Answer") at 4, P: 6. See 47 C.F.R. S: 20.3
(defining "commercial mobile radio service").
See, e.g., Joint Statement at 3, P: 15.
See, e.g., Joint Statement at 3, P: 18.
See, e.g., Complaint at 2-3, P:P: 8-10; Legal Brief of MetroPCS
California, LLC, File No. EB-06-MD-007 (filed Sept. 28, 2007) ("MetroPCS
Initial Brief") at 3-7 (describing the dispute as pertaining to reciprocal
compensation involving "local termination"); 47 C.F.R. S: 24.202(a)
(defining "MTA"). MetroPCS initially asserted that some of the traffic may
not be intraMTA, because the jurisdictional nature of MetroPCS' calls to
North County's chat lines may depend not only on the location of the
MetroPCS caller and of the North County chat line, but also on the
location of all the other callers with whom the MetroPCS caller is
chatting. See, e.g., Amended Answer at 5-7, P:P: 8-10; Legal Analysis in
Support of MetroPCS California, LLC's Amended Answer ("MetroPCS Legal
Analysis") at 6-11. Later, however, MetroPCS essentially withdrew that
assertion and limited its argument to a contention that a chat line call
with multiple participants does not constitute "telecommunications" under
section 3(43) of the Act, 47 U.S.C. S: 153(43). Reply of MetroPCS
California, LLC to North County Communications Corp.'s Brief in Opposition
to the Legal Brief of MetroPCS California, LLC, File No. EB-06-MD-007
(filed Oct. 26, 2007) at 12. We address that argument at P: 13, infra.
Although the Complaint refers to the traffic only as intraMTA, the record
is replete with grounds for concluding that the traffic is also
intrastate, i.e., to and from end users within California. See, e.g.,
Complaint at 1-2 (naming MetroPCS California as the defendant, and
referring exclusively to MetroPCS' service territory in California);
Complaint at 3 (relying heavily on North County's California tariff);
Complaint at 4 (relying heavily on a traffic termination rate adopted by
the California PUC); Complaint at 12, Joint Statement at 12, P: 63 (both
relying heavily on local termination rates paid by MetroPCS to two other
California LECs); Complaint Exhibit G, P: 5 (declaring that North County
terminated calls from "MetroPCS' end users within the intraMTA that
includes San Francisco and Sacramento"); Complaint Exhibit 1 (copies of
North County invoices to MetroPCS for "IntraLATA Call Termination");
Complaint Exhibit 16 (describing the traffic at issue as "all intraLATA
traffic" within California); Complaint Exhibits 11 and 18 (draft North
County/MetroPCS interconnection agreement which describes the traffic
covered by the agreement as "local traffic"). Perhaps most telling, none
of the parties' pleadings describes the traffic as interstate, including
even the six briefs they filed after Commission staff (i) directed the
parties to address the question of "[w]hich is the proper and preferable
forum (in terms of jurisdiction, comity, forum non conveniens, or
otherwise) for resolution of this dispute, the FCC or the California
PUC?", and (ii) listed for the parties several Commission orders declining
to preempt state jurisdiction to set rates charged by LECs to terminate
traffic from CMRS providers. Letter from Alex Starr, Chief, EB, MDRD, FCC,
to Michael B. Hazzard, Counsel for North County, and Carl W. Northrop,
Counsel for MetroPCS (dated Aug. 10, 2007) ("Briefing Order"). In fact,
MetroPCS concedes that the Commission orders cited by Commission staff in
the Briefing Order permit the Commission to allow states to establish
rates for the type of traffic at issue here. MetroPCS Initial Brief at 21.
See, e.g., Joint Statement at 12, P: 61; North County Initial Brief at 30;
Amended Answer, Exhibit E, Declaration of Dena Bishop in Support of
MetroPCS California, LLC's Answer at 7, P: 35; Amended Answer, Exhibit 27
at 3; MetroPCS Legal Analysis at 6-7.
See, e.g., North County Initial Brief at 29-30; MetroPCS Initial Brief at
2. See also 47 U.S.C. S: 227(b)(1)(A)(iii); Rules and Regulations
Implementing the Telephone Consumer Protection Act (TCPA) of 1991, Report
and Order, 18 FCC Rcd 14014 (2003) (subsequent history omitted); 47 C.F.R.
S: 64.1200(a)(1)(iii).
See, e.g., Joint Statement at 3, P: 16. For a period of time prior to May
2006, North County billed MetroPCS $0.004 per minute of use and $0.007 per
call set-up for intrastate traffic termination. See, e.g., Joint Statement
at 2, P: 6. In May 2006, North County changed its intrastate termination
rate and began billing MetroPCS $0.011 per minute of use. See, e.g., Joint
Statement at 2, P: 7.
See, e.g., Joint Statement at 3, P: 19; 13, P: 65.
See, e.g., Amended Answer at 9, P: 16, 12, P: 21; MetroPCS Legal Analysis
at 28; MetroPCS Initial Brief at 5-6. See also Joint Statement at 2, P: 9.
See, e.g., Joint Statement at 2, P: 8; 3, P:P: 13, 18; 4-6, P:P: 23-25,
27, 29-35; 7-11, P:P: 36-59.
See, e.g., 47 C.F.R. S: 20.11(b) (providing that "[l]ocal exchange
carriers and commercial mobile radio service providers shall comply with
principles of mutual compensation"); 47 C.F.R. S: 20.11(b)(2) (providing
that "[a] commercial mobile radio service provider shall pay reasonable
compensation to a local exchange carrier in connection with terminating
traffic that originates on the facilities of the commercial mobile radio
service provider").
See, e.g., Complaint at 15-16, P:P: 64-68.
47 U.S.C. S: 251(b)(5) (providing that "[e]ach local exchange carrier has
... [t]he duty to establish reciprocal compensation arrangements for the
transport and termination of telecommunications").
47 C.F.R. S: 51.301 (providing, in pertinent part, that "[a]n incumbent
LEC shall negotiate in good faith the terms and conditions of agreements
to fulfill the duties established by sections 251(b) and (c) of the Act").
See, e.g., Complaint at 16-19, P:P: 69-76.
47 U.S.C. S: 201(b) (barring any "unjust and unreasonable" practice in
connection with communication service), 202(a) (barring "unjust and
unreasonable discrimination" by any carrier "in connection with like
communication service").
See, e.g., Complaint at 19-20, P:P: 77-86, 22-23, P:P: 95-103.
47 C.F.R. S: 51.715(b) (providing, in pertinent part, that "an incumbent
LEC must, without unreasonable delay, establish an interim arrangement for
transport and termination of telecommunications traffic at symmetrical
rates").
See, e.g., Complaint at 20-22, P:P: 87-94.
See, e.g., Complaint at 23-26, P:P: 104-119. MetroPCS filed several
unopposed motions seeking judicial notice of a number of federal court and
public utility commission submissions. See MetroPCS California, LLC's
Motion for Judicial Notice, File No. EB-06-MD-007 (filed Apr. 6, 2007);
MetroPCS California, LLC's Second Motion for Judicial Notice, File No.
EB-06-MD-007 (filed May 16, 2007); MetroPCS California, LLC's Third Motion
for Judicial Notice, File No. EB-06-MD-007 (filed Feb. 12, 2008)
(collectively "Motions for Judicial Notice"). We hereby grant MetroPCS'
Motions for Judicial Notice. The parties also filed other motions
regarding the briefing in this case. See North County Communications Corp.
Motion to Strike Portions of MetroPCS Brief in Opposition, File No.
EB-06-MD-007 (filed Oct. 16, 2007); MetroPCS California, LLC Motion
Requesting Supplemental Briefing, File No. EB-06-MD-007 (filed Nov. 17,
2008). We hereby deny those motions.
47 C.F.R. S: 20.11(b)(2) (emphasis added).
See, e.g., Complaint at 15-16, P:P: 64-68. For purposes of this Order
only, we assume, without deciding, that a violation of rule 20.11 would be
a violation of the Act cognizable under section 208 of the Act. See Center
for Communications Management Information v. AT&T Corporation, Memorandum
Opinion and Order, 23 FCC Rcd 12249, 12253 at P: 11, n.29 (2008); Global
Crossing Telecommunications, Inc. v. Metrophones Telecommunications, Inc.,
127 S.Ct. 1513 (2007); Alexander v. Sandoval, 532 U.S. 275, 284 (2001).
See generally North County Initial Brief at 12-14; MetroPCS Initial Brief
at 8-12.
North County acknowledges that the Commission cannot adjudicate Count I of
the Complaint without knowing what constitutes "reasonable compensation"
for North County's termination of intrastate traffic originated by
MetroPCS. See, e.g., Complaint at 23-26 (asking the Commission to
prescribe a reasonable rate for North County's termination of intrastate
traffic originated by MetroPCS).
47 U.S.C. S: 152(b).
In the Matter of Developing a Unified Intercarrier Compensation Regime;
T-Mobile et al. Petition for Declaratory Ruling Regarding Incumbent LEC
Wireless Termination Tariffs, Declaratory Ruling and Report and Order, 20
FCC Rcd 4855, 4861 at P: 10 n.41 (2005) ("T-Mobile Declaratory Ruling")
(subsequent history omitted) (stating that "the Commission preempted state
and local regulations governing the kind of interconnection to which CMRS
providers are entitled, but it specifically declined to preempt state
regulation of LEC intrastate interconnection rates applicable to CMRS
providers"); Airtouch Cellular v. Pacific Bell, Memorandum Opinion and
Order, 16 FCC Rcd 13502, 13507 at P: 14 (2001) ("Airtouch v. Pacific
Bell") (stating that the determination of the actual rates charged for
intrastate LEC-CMRS interconnection is left to the states); In the Matter
of Interconnection Between Local Exchange Carriers and Commercial Mobile
Radio Service Providers, Notice of Proposed Rulemaking, 11 FCC Rcd 5020,
5072 at P: 109 (1996) ("LEC-CMRS Interconnection NPRM") (subsequent
history omitted) (stating that the Commission's LEC-CMRS mutual
compensation rules do not preclude the states from setting the actual
interconnection rates that LECs and CMRS providers charge); Equal Access
and Interconnection Obligations Pertaining to CMRS, Notice of Proposed
Rulemaking and Notice of Inquiry, 9 FCC Rcd 5408, 5451 at P: 104 (1994)
("CMRS Equal Access and Interconnection Obligations NPRM/NOI") (noting
that the Commission has declined to preempt state regulation of LEC rates
for intrastate interconnection with cellular carriers); In the Matter of
Implementation of Sections 3(N) and 332 of the Communications Act,
Regulatory Treatment of Mobile Services, Second Report and Order, 9 FCC
Rcd 1411, 1498 at P:P: 231-232 (1994) ("CMRS Second Report and Order")
(subsequent history omitted) (adopting rule 20.11, but declining to
preempt state regulation of LEC intrastate interconnection rates); The
Need To Promote Competition and Efficient Use of Spectrum for Radio Common
Carrier Services, Memorandum Opinion and Order on Reconsideration, 4 FCC
Rcd 2369, 2372 at P: 25 (1989) (noting that compensation arrangements
regarding intrastate traffic between landline telephone companies and
cellular carriers are subject to state regulatory jurisdiction); The Need
To Promote Competition and Efficient Use of Spectrum for Radio Common
Carrier Services, Declaratory Ruling, 2 FCC Rcd 2910, 2912 at P:P: 18,
2915 at P:P: 44-45 (1987) (noting that intrastate charges for cellular
interconnection with landline carriers is subject to intrastate
regulation); Indianapolis Telephone Company v. Indiana Bell Telephone
Company Inc., Memorandum Opinion and Order, 1 FCC Rcd 228, 229-30 at P: 10
(1986) (stating that financial arrangements between cellular and landline
carriers regarding intrastate traffic fall with the purview of state
regulatory authorities). See Rural Iowa Independent Telephone Association
v. Iowa Utilities Board, 385 F.Supp.2d 797, 825 (S.D. Iowa 2005) ("RIITA
v. IUB"), aff'd, 476 F.3d 572 (8th Cir. 2007) (holding that state
commissions may arbitrate indirect interconnection agreements between LECs
and CMRS carriers); Iowa Network Services, Inc. v. Qwest Corporation, 385
F.Supp.2d 850, 893 (S.D. Iowa 2005) ("INS v. Qwest") (holding that state
commissions may arbitrate indirect interconnection agreements between LECs
and CMRS carriers).
See, e.g., North County Initial Brief at 18-19 (citing 47 C.F.R. S:
20.11(a), which provides, in pertinent part, that parties may file
"[c]omplaints against carriers under section 208 of the Communications Act
... alleging a violation of this section....").
North County Initial Brief at 18.
See n.33, supra. See also T-Mobile Declaratory Ruling, 20 FCC Rcd at 4867,
P: 15 n.61 (stating that, "although CMRS providers may indeed have an
existing legal obligation to compensate LECs for the termination of
wireless traffic under section 20.11(b)(2) ..., the rules fail to specify
the mechanism by which LECs may obtain this compensation").
Airtouch v. Pacific Bell, 16 FCC Rcd at 13507, P: 14 (emphasis added).
47 U.S.C. S: 332(c)(3)(A). See MetroPCS Initial Brief at 13-16.
See, e.g., In the Matter of Truth-In-Billing and Billing Format, Second
Report and Order, Declaratory Ruling, and Second Further Notice of
Proposed Rulemaking, 20 FCC Rcd 6448, 6462-3 at P: 30 (2005).
Id.
See, e.g., T-Mobile Declaratory Ruling, 20 FCC Rcd at 4860-61, P: 10 n.41;
Airtouch v. Pacific Bell, 16 FCC Rcd at 13507, P: 14 (2001); LEC-CMRS
Interconnection NPRM, 11 FCC Rcd at 5072, P: 109; CMRS Equal Access and
Interconnection Obligations NPRM/NOI, 9 FCC Rcd at 5451, P: 104; CMRS
Second Report and Order, 9 FCC Rcd at 1498, P:P: 231-232. See also RIITA
v. IUB, 385 F.Supp.2d at 825; INS v. Qwest, 385 F.Supp.2d at 893.
See, e.g., North County Initial Brief at 14-17; MetroPCS Initial Brief at
17-18.
See, e.g., T-Mobile Declaratory Ruling, 20 FCC Rcd at 4860-61, P: 10.
47 U.S.C S: 152(b).
According to North County, we should not assume that the California PUC
will initiate a proceeding to establish a rate for termination of LEC/CMRS
intrastate traffic because, since the release of the T-Mobile Declaratory
Ruling, certain states have declined to arbitrate interconnection
agreements between CLECs and CMRS carriers. North County Initial Brief at
14-16. Those decisions, however, only concern state arbitration of
interconnection agreements under section 252 of the Act, not a state's
general authority to regulate rates for intrastate traffic as preserved by
section 2(b) of the Act.
47 U.S.C. S: 153(43). See, e.g., Amended Answer at 4-7, P:P: 5, 8-10;
MetroPCS Legal Analysis at 6-11; MetroPCS Initial Brief at 40-43; Reply of
MetroPCS California, LLC to North County Communications Corp.'s Brief in
Opposition to the Legal Brief of MetroPCS California, LLC, File No.
EB-06-MD-007 at 11-13 (filed Oct. 26, 2007).
47 U.S.C. S: 153(43) (emphasis added).
See, e.g., MetroPCS Legal Analysis at 7, P: 10, 9-10, P:P: 12-13; MetroPCS
Initial Brief at 41-42.
We note that rule 20.11 does not use the term "telecommunications," and
instead requires compensation for termination of "traffic"; moreover, the
relevant provisions of rule 20.11 actually predate the adoption of the
"telecommunications" definition at section 3(43) of the Act.
See, e.g., Universal Service Contribution Methodology, Report and Order
and Notice of Proposed Rulemaking, 21 FCC Rcd 7518, 7539 at P: 41 (2006).
Moreover, MetroPCS appears to conflate multiple concepts, and does not
demonstrate that the physical location of the parties calling into the
chat line is relevant to the "telecommunications service" or "information
service" classification of either the chat line service or the termination
service. Nor does MetroPCS cite any precedent suggesting that the
Commission has preempted the states' jurisdiction regarding intrastate
traffic to chat lines. Indeed, recent precedent suggests the contrary. Cf.
Establishing Just and Reasonable Rates for Local Exchange Carriers, Notice
of Proposed Rulemaking, 22 FCC Rcd 17989, 17994-95 at P:12 & n.40 (2007)
(noting that "increased switched access traffic appears to be caused by
the deployment of chat lines, conference bridges, or other similar high
call volume operations in the service areas of certain rate-of-return or
competitive LECs," and seeking comment regarding interstate calls to such
numbers, while observing that "[i]ntrastate calls may also be made to
these numbers, but those calls are beyond the jurisdiction of this
Commission and thus are not the subject of this order").
Although MetroPCS also asserts that, in AT&T v. Jefferson, the Commission
referred to a LEC with end users who offered chat-line service as an
"information provider," that assertion is both incorrect and irrelevant.
See, e.g., MetroPCS Initial Brief at 40 (citing AT&T Corp. v. Jefferson
Telephone Co., Memorandum Opinion and Order, 16 FCC Rcd 16130, 16131 at P:
2 (2001)). AT&T v. Jefferson refers to the LEC's customer - not to the LEC
itself - as an "information provider;" and in any event, AT&T v. Jefferson
does not discuss at all the statutory definitions of "telecommunications"
and "information service." 47 U.S.C. S:S: 153(43), 153(20). Moreover, by
definition, information services are provided "via telecommunications." 47
U.S.C. S: 153(20). Thus, AT&T v. Jefferson is inapposite here.
See, e.g., MetroPCS Initial Brief at 18-21.
See, e.g., In the Matter of Developing a Unified Intercarrier Compensation
Regime, Order on Remand and Report and Order and Further Notice of
Proposed Rulemaking, 2008 WL 4821547 (2008); In the Matter of Developing a
Unified Intercarrier Compensation Regime, Further Notice of Proposed
Rulemaking, 20 FCC Rcd 4685 (2005); In the Matter of Developing a Unified
Intercarrier Compensation Regime, Comment Sought on Missoula Intercarrier
Compensation Reform Plan, 20 FCC Rcd 4855 (2005); In the Matter of
Developing a Unified Intercarrier Compensation Regime, Notice of Proposed
Rulemaking, 16 FCC Rcd 9610 (2001). MetroPCS points out that no Commission
order or court decision precludes the Commission from changing course and
deciding to preempt state authority over the termination rates that LECs
charge CMRS providers for intrastate traffic. MetroPCS Initial Brief at
21-23. That may be true, but we decline to take such action in this
complaint proceeding.
We make no determinations at this time as to whether rule 20.11 imposes
obligations to pay compensation in the absence of an agreement, and if so,
on what terms, or alternatively, whether the obligation under rule 20.11
is a mandate that the parties must enter into an agreement to a reasonable
rate of mutual compensation. In either case, we find that resolution of
the rule 20.11 claim depends first on the establishment of a reasonable
rate. We note, however, that due to the language of rule 20.11, claims
regarding the non-payment of an established interconnection rate would not
run afoul of our "collection action" prohibition. See, e.g., Contel of the
South, Inc. v. Operator Communications, Inc., Memorandum Opinion and
Order, 23 FCC Rcd 548, 551 at P: 7 (2008) (explaining that actions to
enforce compensation obligations explicitly imposed by our rules may be
brought to the Commission).
See, e.g., Complaint at 16-18, P:P: 69-76; North County Legal Analysis at
9-12; North County Communications Corp.'s Legal Analysis Replying to
MetroPCS California, LLC's Answer, File No. EB-06-MD-007 at 10-13 (filed
Oct. 25, 2006) ("North County Reply Legal Analysis").
47 U.S.C. S: 251(b)(5).
In the Matter of Implementation of the Local Competition Provisions of the
Telecommunications Act of 1996, First Report and Order, 11 FCC Rcd 15499,
15996, at P: 1005 (1996) (subsequent history omitted). Accord T-Mobile
Declaratory Ruling, 20 FCC Rcd at 4864, P: 16 (stating that "section
251(b)(5) requires LECs to enter into reciprocal compensation agreements
with all CMRS providers but [ ] does not explicitly impose reciprocal
compensation obligations on CMRS providers").
47 C.F.R. S:S: 51.301, 51.715.
Complaint at 16-18, P:P: 69-76; 20-21, P:P: 87-93; North County Legal
Analysis at 9-14; North County Reply Legal Analysis at 15-16; North County
Initial Brief at 42-47; North County Communications Corp.'s Brief in
Opposition to the Legal Brief of MetroPCS California, LLC, File No.
EB-06-MD-007 at 29-30 (filed Oct. 15, 2007) ("North County Opposition
Brief"); Reply Brief of North County Communications Corp. to the
Opposition of MetroPCS California, LLC, File No. EB-06-MD-007 at 14-15
(filed Oct. 26, 2007) ("North County Reply Brief").
47 C.F.R. S: 20.11(c).
47 C.F.R. S: 20.11(c) (emphasis added).
47 C.F.R. S: 51.301(a) ( providing that "[a]n incumbent LEC shall
negotiate in good faith ... the duties established by sections 251(b) and
(c) of the Act"); 51.715(b) (providing that "an incumbent LEC must,
without unreasonable delay, establish an interim arrangement for transport
and termination of telecommunications traffic at symmetrical rates").
Moreover, rule 51.301 appears in Subpart D of Part 51, which is entitled
"Additional Obligations of Incumbent Local Exchange Carriers."
In any event, a careful review of the record reveals no failure by
MetroPCS to negotiate in good faith. The parties' inability to reach
either an interim or a final interconnection agreement stemmed not from
any misconduct, but rather from an honest disagreement about what
constitutes a reasonable termination rate under the specific facts and
applicable law here. See, e.g., Joint Statement at 2-20. See also Part
III(C), infra.
For purposes of this Order only, we assume, without deciding, that a
violation of either rule 51.301 or rule 51.715 would be a violation of the
Act cognizable under section 208 of the Act. See n.30, supra.
See, e.g., Complaint at 19-20, P:P: 77-86; North County Legal Analysis at
12-13; North County Reply Legal Analysis at 13-15. See also 47 U.S.C. S:
201(b) (barring any "unjust or unreasonable" practice in connection with
communication service).
Complaint at 20, P: 84. See, e.g., North County Legal Analysis at 11-12;
North County Initial Brief at 42-47; North County Opposition Brief at
29-30.
Complaint at 20, P: 82. See, e.g., North County Reply Legal Analysis at
13-16.
See, e.g., Complaint at 20, P: 83; North County Reply Legal Analysis at
13; North County Initial Brief at 10, 43-44; North County Reply Brief at
14-15.
See, e.g., Joint Statement at 5, P: 29, 7, P: 38, 9, P: 46.
See, e.g., Complaint at 19-20, P:P: 77-86; North County Legal Analysis at
12-13; North County Reply Legal Analysis at 13-15.
For purposes of this Order only, we assume, without deciding, that a CMRS
carrier's failure to enter in good faith into an agreement with a CLEC
regarding the termination of intrastate traffic, and a failure to pay a
CLEC for such termination, could constitute a violation of section 201(b)
of the Act. See n.30, supra. We further assume, arguendo, that section
201(b), which on its face is limited in application to "charges,
practices, classifications, and regulations for and in connection with
[interstate or foreign communication]," nevertheless applies to the
intrastate traffic at issue.
These disagreements involved, inter alia, (i) whether the parties have, or
should be deemed to have, a default bill-and-keep arrangement; (ii)
whether the one-way nature of the intrastate traffic involved renders an
analogy to "ISP-bound traffic" dispositive; (iii) whether and to what
extent the rates the parties charge and pay other carriers for terminating
intrastate traffic are dispositive; (iv) whether North County's failure to
provide cost information is dispositive; (v) whether and to what extent
the applicable statute of limitations bars North County's claims; (vi)
whether any rate prescription could be prospective only; (vii) whether the
California PUC has adopted a relevant traffic termination rate; and (viii)
whether sections 202(a) and 252(b)(5) of the Act and sections 51.301 and
51.715 of the Commission's rules apply to MetroPCS in this context. See,
e.g., Complaint at 4-14, P:P: 21-58, 16-20, P:P: 69-86; North County Legal
Analysis at 9-13; Amended Answer at 12-32, P:P: 21-58, 38-49, P:P: 69-86,
67, P: 6, 69, P: 10; MetroPCS Legal Analysis at 17-30; Reply of North
County Communications Corp. to MetroPCS California, LLC's Amended Answer,
File No. EB-06-MD-007 at 19-26, P:P: 69-86 (filed Oct.25, 2007); North
County Reply Legal Analysis at 8-15; North County Initial Brief at 42-47;
North County Opposition Brief at 29; Opposition of MetroPCS California,
LLC to Legal Brief of North County Communications Corporation, File No.
EB-06-MD-007 at 22-28 (filed Oct. 15, 2007); North County Reply Brief at
14-15.
We note that both parties contributed to lengthening the duration of this
dispute by disregarding the Commission's clear and repeated statements
that state commissions, and not this Commission, are the appropriate fora
for establishing a LEC's intrastate termination rates. See Part III (A),
supra.
To the extent that Count III is based on MetroPCS' failure to pay North
County for terminating intrastate traffic, separate and distinct from
MetroPCS' failure to execute an agreement for such payment, Count III is
dismissed for the reasons explained in Part III (A), supra.
Complaint at 23, P: 101. See, e.g., Complaint at 22-23, P:P: 95-103; North
County Legal Analysis at 15-18; North County Reply Legal Analysis at
17-19. See also 47 U.S.C. S: 202(a) (providing that "[i]t shall be
unlawful for any common carrier to make any unjust or unreasonable
discrimination in charges, practices, classifications, regulations,
facilities, or services for or in connection with like communication
service ... ").
See, e.g., Complaint at 22-23, P:P: 95-103; North County Legal Analysis at
14-15; North County Reply Legal Analysis at 18.
See, e.g., Complaint at 23, P: 102; North County Legal Analysis at 15;
North County Reply Legal Analysis at 19.
CoreComm Communications, Inc. and Z-Tel Communications, Inc. v. SBC
Communications Inc., Memorandum Opinion and Order, 18 FCC Rcd 7568, 7582,
at P: 34 (2003) (emphasis in original) (footnote omitted), vacated on
other grounds, SBC Communications, Inc. v. FCC, 407 F.3d 1223 (D.C. Cir.
2005). See, e.g., Competitive Telecommunications Ass'n v. FCC, 998 F.2d
1058, 1064 (D.C. Cir. 1993) ("Section 202(a) is designed to prevent a
carrier from granting a discount to one (usually large) user that it would
not grant were the same or a `like' service purchased by another (usually
small) customer."); Reservation Telephone Cooperative v. AT&T, 59 Rad.
Reg. 2d 484 at P: 33 (1985) (stating that section 202 "was derived from
Interstate Commerce Act provisions that were designed primarily for the
protection of customers of common carrier services").
Because section 202(a) clearly does not apply in the manner alleged by
North County, we need not, and do not, decide whether section 202(a) could
apply to a CMRS carrier's provision of service in connection with
intrastate traffic. See n.30 and n.72, supra.
See MetroPCS California LLC's Motion Requesting Sanctions Against North
County Communications Corporation, File No. EB-06-MD-007 (filed Dec. 11,
2008) ("Motion for Sanctions").
North County Communications Corporation's Opposition to MetroPCS
California, LLC's Motion Requesting Sanctions, File No. EB-06-MD-007
(filed Dec. 18, 2008).
See North County Communications Corporation's Opposition to MetroPCS
California, LLC's Motion Requesting Supplemental Briefing, File No.
EB-06-MD-007 (filed Nov. 21, 2008), Exhibit A, Declaration of Todd Lesser
at Attachment 1 (Letter from Bob Filner, Member of Congress to the
Honorable Robert M. McDowell dated November 17, 2008). The letter stated,
for example: "[North County] has been pursuing an FCC enforcement action
against a regional wireless carrier, MetroPCS, for refusing to pay North
County Communications for use of its network as the FCC's rules require."
Id. at 1 (emphasis added).
Id.
Formal complaints are made restricted by 47 C.F.R. S:S: 1.1202(d)(2)
(stating that parties to a formal complaint are parties to a proceeding
for purposes of the ex parte rules) and 1.1208 (stating that proceedings
not otherwise designated are restricted). Ex parte presentations to and
from Commission decision-makers are prohibited in restricted proceedings.
See 47 C.F.R. S: 1.1208.
The resolution of this issue was made in consultation with the
Commission's Office of General Counsel, in accordance with 47 C.F.R. S:
0.251(g). See Letter from David Senzel, Attorney-Advisor, Office of
General Counsel, FCC, to Marlene H. Dortch, Secretary, FCC, File No.
EB-06-MD-007 (filed Mar. 6, 2009) ("Senzel Letter"), attaching Letter from
Joel Kaufman, Associate General Counsel to the Honorable Bob Filner (Feb.
5, 2009) (concluding the Congressman Filner's letter is a prohibited ex
parte presentation). A presentation is a communication directed to the
merits or outcome of a proceeding, but does not include inquiries relating
solely to the status of a proceeding. See 47 C.F.R. S: 1.1202(a). A
written presentation not served on the parties to the proceeding is an ex
parte presentation. See 47 C.F.R. S: 1.1202(b).
A status inquiry made on an ex parte basis, unlike an ex parte
presentation, is permissible. However, a status inquiry is a prohibited
presentation if it states or implies a view as to the merits or outcome of
the proceeding or a preference for a particular party, states why timing
is important to a particular party or indicates a view as to the date by
which a proceeding should be resolved. See 47 C.F.R. S: 1.1202(a).
Congressman Filner's letter both states why timing is important to North
County and appears to express a view as to the merits.
47 C.F.R. S: 1.1210 (providing that "[n]o person shall solicit or
encourage others to make any improper presentation ... ). "
For example, a North County e-mail states: "As with all of our
correspondence, I have copied Carl Northop, who represents MetroPCS in
this proceeding." The subject line of the e-mail reads: "North County v.
MetroPCS, EB-06-MD-007 (RESTRICTED PROCEEDING)." Senzel Letter, attaching
E-mail from Michael Hazzard to Matthew Berry and Joseph Palmore (Nov. 19,
2008).
See Elliott J. Greenwald, Esq., Letter, 13 FCC Rcd 7132, 7134-35 (OGC
1998) (finding no significant ex parte violation where party's failure to
ensure timely service of congressional presentations did not reflect an
intent to deprive opposing party of fair notice of the presentations);
Power Authority of the State of New York v. FERC, 743 F.2d 93, 110 (2d
Cir. 1984) (stating that, in evaluating an ex parte violation, one must
look particularly to whether the communications contain factual matter or
other information outside the record, which the parties did not have an
opportunity to rebut). North County filed the Filner letter on November
21, 2008. See n.83, supra. MetroPCS first raised the ex parte issue on
November 25, 2008. See Letter from Carl W. Northrop, Counsel for MetroPCs,
to Matthew Berry, Office of General Counsel, File No. EB-06-MD-007 (filed
Nov. 25, 2008).
See, e.g., Desert Empire Television Corp., Memorandum Opinion and Order,
88 FCC 2d 1413 (1982) (imposing a $6,000 forfeiture against a party that
repeatedly violated the ex parte rules despite being admonished to comply
with the rules and promising compliance); Elkhart Telephone Co., Notice of
Apparent Liability and Forfeiture, 11 FCC Rcd 1165 (1995) (imposing a
$5,000 forfeiture on party sending a letter plainly attempting to solicit
a communication that would violate the ex parte rules, and subsequently
mischaracterized its efforts to the Commission).
See Elliott J. Greenwald, Esq., 13 FCC Rcd at 7135, citing Pillsbury Co.
v. FTC, 354 F.2d 952, 963-65 (5th Cir. 1966).
See ATX, Inc. v. U.S. Dep't of Transportation, 41 F.3d 1522, 1527 (D.C.
Cir. 1994).
See id. at 1528 (finding unobjectionable congressional pressure that may
have prompted agency to hold hearing resulting in the denial of an
application, where there was no reason to doubt that hearing was fair and
impartial). See also Elliott J. Greenwald, Esq., 13 FCC Rcd at 7135
(finding unobjectionable congressional interest that may have prompted FCC
to accelerate its deliberations, where congressional letters focused on
timing, not the merits). Thus, even if Congressman Filner's letter might
have been a factor in the decision of Commission staff to meet with North
County or to accelerate deliberations in this proceeding, that would not
be the type of influence that the courts have found to be a violation of
due process.
See ATX, 41 F.3d at 1528. In ATX, a case in which members of Congress
explicitly urged denial of an application, the court nevertheless found
the agency's decision denying the application was free of bias. The court
noted that the final decision-maker, who was aware of congressional
letters, had insulated his decision-making from congressional interference
in that he issued a lengthy opinion based on the record and that the basis
of the decision was clear, open to scrutiny, and fully supported by the
record. The court also noted that the final decision-maker did not reverse
the decision reached by the ALJ after the hearing, and that the case was
not a close one. If the decision-maker had suddenly reversed course or the
case was a close one, the court stated that it might have found influence.
The record also reflects that Congressman Filner contacted two House
subcommittee chairmen and sought hearings on Commission enforcement
processes. Motion for Sanctions, Exhibits 2 & 3 (letters from Congressman
Filner dated November 17, 2008 to Congressman Edward J. Markey, Chairman,
Committee on Commerce and Energy, Subcommittee on
Telecommunications/Internet and Congressman Bart Stupak, Chairman,
Committee on Commerce and Energy, Subcommittee on Oversight and
Investigations). However, there is no indication that this resulted in any
further contact with the Commission. Accordingly, Congressman Filner's
communications with his House colleagues did not violate the ex parte
rules and does not represent improper congressional intrusion into the
Commission's adjudicative process.
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Federal Communications Commission DA 09-719
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Federal Communications Commission DA 09-719