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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                            )                          
                                                                       
                                            )                          
                                                                       
                                            )                          
                                                                       
                                            )                          
     In the Matter of                                                  
                                            )                          
     Qwest Communications Company, LLC,                                
                                            )                          
     Complainant,                                                      
                                            )   File No. EB-11-MD-001  
     v.                                                                
                                            )                          
     Northern Valley Communications, LLC,                              
                                            )                          
     Defendant.                                                        
                                            )                          
                                                                       
                                            )                          
                                                                       
                                            )                          
                                                                       
                                            )                          


                          MEMORANDUM OPINION AND ORDER

   Adopted: June 7, 2011 Released: June 7, 2011

   By the Commission:

   I. INTRODUCTION

    1. This formal complaint proceeding represents the latest chapter in the
       ongoing dispute between interexchange carriers ("IXCs") and local
       exchange carriers ("LECs") involving "access stimulation." Qwest
       Communications Company, LLC ("Qwest") filed a complaint against
       Northern Valley Communications, LLC ("Northern Valley") under section
       208 of the Communications Act of 1934, as amended ("Act"). In short,
       Qwest alleges that Northern Valley's interstate access service tariff
       violates section 201(b) of the Act and requests that the Commission
       order Northern Valley to withdraw the tariff.

    2. As explained below, we find that Northern Valley's tariff is unlawful.
       As Qwest argues, and Northern Valley does not dispute, Northern
       Valley's tariff purports to allow Northern Valley to impose tariffed
       switched access charges on IXCs for calls placed or received by
       individuals or entities to whom Northern Valley offers free services.
       The tariff therefore violates Commission rule 61.26 as clarified by
       the CLEC Access Charge Reform Reconsideration Order,  and accordingly
       also violates section 201(b) of the Act. Thus, we grant Qwest's
       Complaint and direct Northern Valley to revise its tariff within ten
       days of the date of release of this Order.

   II. BACKGROUND

         A. The Parties

    3. Qwest is an IXC providing interstate telecommunications service
       throughout the United States. Northern Valley is a competitive local
       exchange carrier ("CLEC"), serving customers in South Dakota. Northern
       Valley provides interstate exchange access service to IXCs such as
       Qwest pursuant to tariffs filed with the Commission. Among the
       entities to which Northern Valley terminates calls are conference
       calling companies that maintain conference bridges located in Northern
       Valley's telephone exchange area.

    4. On July 8, 2010, Northern Valley filed a revised interstate access
       service tariff ("Tariff"). In particular, Northern Valley revised the
       Tariff's definition of "End User," which the Tariff previously had
       defined, in relevant part, as "any Customer of an Interstate or
       Foreign Telecommunications Service that is not a carrier." In the
       revised Tariff, Northern Valley added the following sentence to the
       "End User" definition: "An End User need not purchase any service
       provided by [Northern Valley]." Northern Valley states that it revised
       the "End User" definition because it believes that the Commission's
       decision in Qwest v. Farmers II created "doubt" as to whether Northern
       Valley could impose access charges for terminating calls to conference
       calling companies under its existing tariff.

     A. The Commission's Access Charge Regime

    5. Resolution of the present dispute requires an examination first of the
       Commission's rules and orders governing incumbent local exchange
       carrier ("ILEC") access services. ILECs are required to publish the
       rates, terms, and conditions applicable to their access service in
       tariffs filed with the Commission. The Commission's rules governing
       these tariffs provide that ILECs may recover access service costs
       through charges assessed on both IXCs and "end users." These 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." The
       Commission, since 1984, also has required that ILEC access tariffs
       define "end user" as "any customer of an interstate or foreign
       telecommunications service that is not a carrier."

    6. In contrast to ILECs, CLECs may impose interstate access charges
       either through tariffs or contracts negotiated with IXCs. In the CLEC
       Access Charge Reform Order, the Commission found that CLEC access
       rates were, on average, "well above the rates that ILECs charge for
       similar service" and acknowledged that some CLECs were "refus[ing] to
       enter meaningful negotiation on access rates, choosing instead simply
       to file a tariff and bind IXCs ... to the rates therein." The
       Commission declared further that its goal was "ultimately to eliminate
       regulatory arbitrage opportunities that previously have existed with
       respect to tariffed CLEC switched access services." Accordingly, the
       Commission prohibited CLECs from tariffing switched access rates that
       were higher than the switched access rates of the ILEC serving the
       same geographic area in which the CLEC was located. In other words,
       CLEC switched access rates would be "benchmarked" against ILEC rates.
       If a CLEC wished to impose higher switched access rates, it could do
       so only by negotiating with the affected IXCs. Finally, as discussed
       more fully below, in the CLEC Access Charge Reform Reconsideration
       Order, the Commission clarified that a CLEC may assess tariffed
       switched access charges at the appropriate benchmark rate only for
       calls to or from the CLEC's own end users.

   III. DISCUSSION

          A. Northern Valley's Tariff Violates Section 201(b) of the Act.

    7. As noted above, Northern Valley's tariff previously defined "End User"
       to mean "any Customer of an Interstate or Foreign Telecommunications
       Service that is not a carrier." Northern Valley revised that
       definition by adding the statement that "an End User need not purchase
       any service provided by [Northern Valley]." In its Complaint, Qwest
       argues that the Tariff is unlawful because this new language purports
       to allow Northern Valley to impose tariffed charges on Qwest for
       terminating calls to entities to whom Northern Valley offers free
       service. We agree with Qwest. Qwest's construction of the language at
       issue is reasonable, and, moreover, is not disputed by Northern
       Valley. The Tariff therefore is unlawful, because, as explained below,
       the Commission's access service rules and orders establish that a CLEC
       may tariff access charges only if those charges are for transporting
       calls to or from an individual or entity to whom the CLEC offers
       service for a fee.

    8. The Commission in the CLEC Access Charge Reform Order promulgated
       rules entitled "Tariffing of competitive [LEC] interstate switched
       exchange access services." Section 61.26(a)(3) of these rules states
       that "Interstate switched exchange access services shall include the
       functional equivalent of the ILEC interstate exchange access services
       typically associated with the ... rate elements [found in ILEC access
       service tariffs.]" Thus, the Commission's rules require that tariffed
       CLEC charges for "interstate switched exchange access services" be for
       services that are "the functional equivalent" of ILEC interstate
       switched exchange access services. As the Commission subsequently
       explained in the CLEC Access Charge Reform Reconsideration Order, 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 rate elements identified in [the section defining "Interstate switched
   exchange access services"] reflect those services needed to originate or
   terminate a call to a LEC's end-user. When a competitive LEC originates or
   terminates traffic to its own end-users it is providing the functional
   equivalent of those services....

   Moreover, the Commission has made clear that when a CLEC is not
   transporting traffic to or from its own end user, the CLEC is not
   providing the functional equivalent of ILEC access services and thus not
   entitled to charge the full tariffed benchmark rate. The CLEC Access
   Charge Reform Reconsideration Order explains:

   [T]here have been a number of disputes regarding the appropriate
   compensation to be paid by IXCs when a competitive LEC handles
   interexchange traffic that is not originated or terminated by the
   competitive LEC's own end-users.... [W]e now conclude that the benchmark
   rate established in the CLEC Access Reform Order is available only when a
   competitive LEC provides an IXC with access to the competitive LEC's own
   end-users. As explained above, a competitive LEC that provides access to
   its own end-users is providing the functional equivalent of the services
   associated with the rate elements listed in section 61.26(a)(3) [i.e.,
   ILEC interstate access services] and therefore is entitled to the full
   benchmark rate.

    9. A CLEC's "own end-users" do not include entities that receive free
       services from the CLEC. As noted earlier, "end user" has been defined
       by the Commission's ILEC access charge rules and orders for more than
       25 years as a "customer of an interstate or foreign telecommunications
       service." The Act, in turn, defines "telecommunications service" as
       "the offering of telecommunications for a fee."  Thus, under 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 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. Northern Valley's Tariff, however, purports to permit
       Northern Valley to charge IXCs for calls to or from entities to whom
       Northern Valley offers its services free of charge, because it states
       that "an End User need not purchase any service provided by [Northern
       Valley]". Therefore, the Tariff violates the Commission's CLEC access
       charge rules as clarified by the CLEC Access Charge Reform
       Reconsideration Order, and consequently also violates section 201(b)
       of the Act. 

   10. Northern Valley disagrees with this analysis, arguing first that a
       "customer of ... telecommunications service" need not pay for such
       service. According to Northern Valley, the "Collins English Dictionary
       recognizes that, in addition to `a person who buys,' a customer may
       also be `a person with whom one has dealings.'" In the context
       relevant to this dispute, however, "customer" clearly means a paying
       customer. As discussed, the Commission defines "end user" to mean a
       customer of a "telecommunications service," which, under the statute,
       is "the offering of telecommunications for a fee." The Commission has
       explained that, "in order to be a telecommunications service, the
       service provider must assess a fee for its service."

   11. Northern Valley argues further that the question of whether it charges
       end users "is both logically and legally inapposite to a determination
       of whether Qwest should be obligated to pay for the Access Service
       that it receives." Northern Valley asserts that the Tariff is lawful
       even if Northern Valley does not provide the "functional equivalent"
       of ILEC exchange access, because Northern Valley provides "exchange
       access" within the meaning of the Act. Specifically, Northern Valley
       notes that the Act's "exchange access" definition imposes no
       requirement that a LEC receive payment from the individual or entity
       placing or receiving the call. Instead, the Act defines the term as
       "the offering of access to telephone exchange services or facilities
       for the purpose of the origination or termination of telephone toll
       services," and defines "telephone toll service" as "telephone service
       between stations in different exchange areas for which there is made a
       separate charge not included in contracts with subscribers for
       exchange service." Northern Valley, however, must comply not only with
       the Act, but also with the Commission's rules and orders. As
       discussed, the Commission has determined 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
       that an entity to whom the CLEC offers free service is not an end
       user. Thus, if Northern Valley wishes to charge IXCs for terminating
       calls to entities that pay no fees, it must do so through a negotiated
       contract.

     A. Northern Valley's Remaining Defenses Are Not Valid.

   12. Northern Valley asserts that the Tariff is lawful regardless of
       Commission orders or rules. According to Northern Valley, there is no
       "authority for why the definitions in Northern Valley's tariff must
       mimic word-for-word the definitions in the Commission rules, or be
       invalid." Rather, Northern Valley contends, the Commission is required
       "to evaluate [Northern Valley's] tariff based on the definitions
       contained therein, not by prior orders or rules...." As an example,
       Northern Valley cites Qwest v. Farmers I, asserting that "the
       Commission analyzed Qwest's complaint there, by reference to the terms
       of the tariff at issue." Northern Valley's argument misses the mark.
       LEC tariffs must comply with the Act and the Commission's rules and
       orders; those that do not are subject to suspension, mandatory
       withdrawal, revision, or challenge by formal complaint. The question
       in Qwest v. Farmers I was whether Farmers' practices conformed to the
       terms of its otherwise lawful tariff. There was no contention - as
       there is in this case - that the terms of Farmers' tariff were
       unlawful, and thus the Commission did not address that issue. 

   13. In addition, Northern Valley argues that the Complaint should be
       denied because Qwest does not allege that Northern Valley has in fact
       imposed charges for calls to entities that have not purchased services
       from Northern Valley, or will do so in the future. Qwest is not
       required to make any such showing. "Tariffs are to be interpreted
       according to the reasonable construction of their language; neither
       the intent of the framers nor the practice of the carrier
       controls...." The Tariff states "[a]n End User need not purchase any
       service provided by [Northern Valley]." This language is reasonably
       construed to include entities to whom Northern Valley offers service
       free of charge. As discussed, imposing tariffed charges on IXCs for
       terminating calls to such entities violates the Commission's access
       charge regime; therefore, the Tariff is unlawful. In any event,
       Northern Valley's argument rings hollow. Northern Valley admits that
       it revised its Tariff because Qwest v. Farmers II created "doubt" as
       to whether Northern Valley could continue to impose access charges on
       "portions of the traffic that Qwest was sending to Northern Valley"
       (i.e., calls to conference calling companies). Further, in order to
       meet its burden of proof, Qwest is not obligated to establish that
       Northern Valley already has imposed unlawful access charges upon
       Qwest. Section 208(a) of the Act states that complaints may not be
       dismissed "because of the absence of direct damage to the
       complainant."

   14. Northern Valley's remaining defenses likewise are unavailing. Contrary
       to Northern Valley's assertion, the fact that the Wireline Competition
       Bureau did not act on Qwest's Petition to Reject or, in the
       Alternative, Suspend and Investigate the Tariff presents no impediment
       to granting the Complaint. As Northern Valley acknowledges, a
       petitioner's burden of proof when seeking rejection or suspension of a
       CLEC tariff is more demanding than a complainant's burden in a section
       208 complaint proceeding. Similarly, there is no merit to Northern
       Valley's assertion that Qwest, by failing to follow the dispute
       resolution provisions of the Tariff (i.e., pay disputed charges)
       violated Commission rule 1.721(a)(8). Compliance with the dispute
       resolution provisions of a tariff is not the standard for determining
       whether a complainant has satisfied rule 1.721(a)(8). Finally,
       Northern Valley offers no factual or legal support whatsoever for its
       affirmative defense that Qwest has "unclean hands."

   15. In conclusion, we grant Qwest's Complaint because the Tariff's revised
       "end user" definition allows Northern Valley to violate the
       Commission's CLEC access rules and orders by imposing tariffed
       switched access charges for terminating calls to entities to whom
       Northern Valley offers free service. Accordingly, we conclude that the
       Tariff violates section 201(b) of the Act, and must be revised.

   IV. ORDERING CLAUSEs

   16. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j), 201,
       203, and 208 of the Communications Act of 1934, as amended, 47 U.S.C.
       S:S: 151, 154(i), 154(j), 201, 203, and 208, that the Complaint is
       GRANTED.

   17. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i), 4(j), 201, 203,
       and 208 of the Communications Act of 1934, as amended, 47 U.S.C. S:S:
       151, 154(i), 154(j), 201, 203, and 208, that Northern Valley
       Communications, LLC SHALL FILE tariff revisions within ten days of the
       release of this Order 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.

   FEDERAL COMMUNICATIONS COMMISSION

   Marlene H. Dortch

   Secretary

   As described by this Commission, "access stimulation" is an "arbitrage
   scheme" by which a telecommunications carrier "enters into an arrangement
   with a provider of high volume operations such as chat lines, adult
   entertainment calls, and `free' conference calls" in order to generate
   elevated traffic volumes and maximize access charge revenues.  Connect
   America Fund, Notice of Proposed Rulemaking and Further Notice of Proposed
   Rulemaking, 26 FCC Rcd 4554, 4758, P: 636 (2011) ("Connect America Fund").

   Formal Complaint of Qwest Communications Company, LLC, File No.
   EB-11-MD-001 (filed Jan. 6, 2011) ("Complaint").

   47 U.S.C. S: 208.

   Complaint at 13-17, P:P: 21-31 (citing section 201(b), 47 U.S.C. S: 201(b)
   (prohibiting "unjust and unreasonable practices")); id. at 18, P: 34
   (Prayer for Relief). Qwest's Complaint does not seek damages.

   See 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 Reconsideration Order").

   Joint Statement, File No. EB-11-MD-001 (filed Feb. 9, 2011) ("Joint
   Statement") at 1, P: 2; Complaint at 3-4, P: 1. Qwest recently merged with
   CenturyTel, Inc. See Applications filed by Qwest Communications
   International Inc. and CenturyTel, Inc. d/b/a CenturyLink for Consent to
   Transfer Control, Memorandum Opinion and Order, 2011 WL 972605 (rel. Mar.
   18, 2011). See also Letter from David H. Solomon, Counsel for Qwest, to
   Marlene H. Dortch, Secretary, FCC, File No. EB-11-MD-001 (filed Apr. 28,
   2011).

   Joint Statement at 1, P: 3; Answer of Northern Valley Communications, LLC,
   File No. EB-11-MD-001 (filed Jan. 27, 2011) ("Answer"), Exhibit A
   (Northern Valley Communications, LLC Legal Analysis in Opposition to
   Formal Complaint ("Legal Analysis")) at 3.

   See Joint Statement at 2-3, P:P: 3, 4, 7. Northern Valley contends that it
   is a "rural CLEC." See Answer, Legal Analysis at 3. Rural CLECs are
   permitted under the "rural exemption" contained in the CLEC access charge
   rules to charge significantly higher rates than a non-rural CLEC. See
   discussion below at paragraph 6 & n.24. Qwest does not concede that
   Northern Valley qualifies for the "rural exemption." See Complaint at 8,
   n.9.

   Answer, Legal Analysis at 3-4.

   Joint Statement at 2, P: 4. Complaint at 2 & Exhibit B (Northern Valley
   Communications, LLC Tariff F.C.C. No. 3 ("Tariff")).

   Joint Statement at 2, P: 4. Complaint at 2, 12, P: 18 & Exhibit B. See
   Northern Valley F.C.C. Tariff No. 2 at Original Page 2-59 and Complaint,
   Exhibit A (Legal Analysis in Support of Qwest Communications Company,
   LLC's Complaint ("Legal Analysis")) at 4-6.

   Complaint, Exhibit B (Tariff) at Original Page No. 8.

   Qwest Communications Corp. v. Farmers and Merchants Mut. Tel. Co., Second
   Order on Reconsideration, 24 FCC Rcd 14801 (2009) ("Qwest v. Farmers II").

   Answer, Legal Analysis at 4. In Qwest v. Farmers II, the Commission
   granted a section 208 complaint against Farmers and Merchants Mutual
   Telephone Company of Wayland, Iowa ("Farmers"), a rural LEC that was
   engaged in access stimulation. Farmers' tariff imposed access charges for
   transporting calls to or from an "end user's premises" and defined "end
   user" as "any customer of an interstate or foreign telecommunications
   service other than a carrier." Qwest v. Farmers II, 24 FCC Rcd at 14801,
   P: 1, 14805, P: 10. The Commission concluded that, because the conference
   calling companies did not purchase any services from Farmers, they were
   not "end users" within the meaning of Farmers' tariff. Accordingly, the
   Commission found that Farmers violated sections 201(b) and 203(c) of the
   Act because it had imposed charges that were inconsistent with its tariff:
   "[N]othing in the contracts [between Farmers and the conference calling
   companies] suggests that the conference calling companies would subscribe
   to any tariffed Farmers' service or pay Farmers for their connections to
   the interexchange network, as would ordinary end-user customers under the
   tariff." Qwest v. Farmers II, 24 FCC Rcd at 14801, P: 1, 14806, P: 12.

   47 U.S.C. S: 203(a); see Tariff Filing Requirements for Interstate Common
   Carriers, Report and Order, 7 FCC Rcd 8072, 8072-73, P:P: 3-8 (1992); see
   also Hyperion Telecommunications, Inc. Petition Requesting Forbearance,
   Memorandum Opinion and Order and Notice of Proposed Rulemaking, 12 FCC Rcd
   8596 (1997) ("Hyperion Forbearance Order") at 8596-8601, P:P: 1-9
   (discussing the application of the section 203(a) tariff-filing
   requirement to ILECs).

   See, e.g., 47 C.F.R. S:S: 69.4(a) ("The end user charges for access
   service filed with this Commission shall include charges for the End User
   Common Line element ...."); 69.104 (end user common line charge for
   non-price cap ILECs); 69.152 (end user common line charge for price cap
   LECs).

   47 C.F.R. S: 69.2(m); see MTS and WATS Market Structure, Third Report and
   Order, 93 FCC 2d 241, 245-46, P: 10 (1983) ("Today we...adopt[ ] rules
   that will determine the rates interexchange carriers and end users will
   pay for access to local telephone company facilities used to complete
   interstate service offerings."), 345, Appendix A, S: 69.2(m) (defining
   "end user" as "any customer of an interstate or foreign telecommunications
   service ... that is not a carrier ...").

   See Investigation of Access and Divestiture Related Tariffs, Memorandum
   Opinion and Order, 97 FCC 2d 1082, 1192, S: 2.6 (1984) ("ECA Tariff
   Order") (requiring that the Exchange Carriers' Association tariff, as the
   model tariff for exchange access tariffs, so define "end user"); Access
   and Divestiture Related Tariffs (Non-ECA Filings), Memorandum Opinion and
   Order, 55 Rad. Reg. 2d 869, 870, P: 2 (1984) (requiring Bell Operating
   Companies and independent LECs "to implement the directives of the ECA
   Tariff Order....").

   See Hyperion Forbearance Order, 12 FCC Rcd at 8596, P: 1 (granting
   "permissive detariffing for provision of interstate exchange access
   services by providers other than the incumbent local exchange carrier").

   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, 9931, P: 22, 9934, P: 28 (2001)
   ("CLEC Access Charge Reform Order"). The Commission expressed concern that
   CLECs were using high access rates to shift a substantial portion of their
   costs onto long distance carriers and subscribers who chose an access
   provider with lower rates. Id. at 9948, P: 59.

   CLEC Access Charge Reform Order, 16 FCC Rcd at 9925, P: 3.

   CLEC Access Charge Reform Order,  16 FCC Rcd  at 9944-45, P:  52.

   Id. The Commission has sought comment on revising the CLEC benchmark rule
   for carriers with revenue-sharing arrangements.  See Connect American
   Fund, 26 FCC Rcd at 4762, P:P: 649-50.

   CLEC Access Charge Reform Order, 16 FCC Rcd at 9925, P: 3, 9938, P: 40; 47
   C.F.R. S: 61.26. The Commission made an exception for those small rural
   CLECs whose rates would otherwise be benchmarked against those of larger
   ILECs serving both rural and more urban communities. The Commission
   permitted these "rural CLECs" to benchmark their rates against the
   significantly higher rates found in the tariff to which small, generally
   rural ILECs subscribe. CLEC Access Charge Reform Order, 16 FCC Rcd at
   9953, P: 73.

   See Northern Valley F.C.C. Tariff No. 2 at Original Page 2-59 and
   Complaint, Exhibit B (Tariff No. 3) at Original Page No. 8.

   Complaint, Exhibit B (Tariff) at Original Page No. 8.

   See Answer, Legal Analysis at 12-14. See also n.34 below.

   47 C.F.R. S: 61.26 (heading).

   47 C.F.R. S: 61.26(a)(3).

   Access Charge Reform Reconsideration Order, 19 FCC Rcd at 9114, P: 13
   (emphasis added). Commission rule 61.26(f), 47 C.F.R. S: 61.26(f),
   applying when "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..." is not at issue here.

   CLEC Access Charge Reform Reconsideration Order, 19 FCC Rcd at 9115, P: 15
   (emphasis added).

   See above at II.B. ("The Commission's Access Charge Regime") P: 5 (citing
   47 C.F.R. S: 69.2(m), ECA Tariff Order, 97 FCC 2d at 1192, S: 2.6).

   47 U.S.C. S: 153(53) (emphasis added).

   Complaint, Exhibit B (Tariff) at Original Page No. 8. The Tariff's
   definition of "End User" may be so inconsistent as to be ambiguous. On the
   one hand, it defines "end user" as a paying customer (an end user is "any
   customer of an interstate or foreign telecommunications service").
   Complaint, Exhibit B (Tariff) at Original Page No. 8. On the other hand,
   it defines "end user" as an entity that does not pay (an end user "need
   not purchase any service provided by [Northern Valley]"). Id. This
   inconsistency may violate the Commission's requirement that tariffs be
   "clear and explicit."  See 47 C.F.R. S: 61.2(a). We do not address this
   issue, however, because Qwest did not raise it, and both parties assert
   that the Tariff's "end user" definition establishes that Northern Valley
   may impose charges for calls to or from parties that have not purchased
   services from Northern Valley.

   See, e.g., Global Crossing Telecommunications, Inc. v. Metrophones
   Telecommunications, Inc., 550 U.S. 45, 52-55 (2007) (citations omitted)
   ("The FCC has long implemented S: 201(b) through the issuance of rules and
   regulations"). The CLEC Access Charge Reform Reconsideration Order was
   promulgated pursuant to section 201, see CLEC Access Charge Reform
   Reconsideration Order, 19 FCC Rcd at 9166, P: 136, in furtherance of the
   Commission's obligation to ensure that "[a]ll charges, practices,
   classifications, and regulations for and in connection with
   ...communication service [are] just and reasonable." 47 U.S.C. S: 201(b).
   See also Halprin, Temple, Goodman & Sugrue v. MCI Telecomm. Corp.,
   Memorandum Opinion and Order, 13 FCC Rcd 22568, 22574-76, P:P: 8-13
   ("Halprin")  (finding that "the Tariff is not clear and explicit as
   required by section 61.2 of the Commission's rules, which renders the
   Tariff unreasonable in violations of section 201(b) of the Act...").

   Answer, Legal Analysis at 18-22.

   Answer, Legal Analysis at 19 (citing Collins English Dictionary - Complete
   & Unabridged (10th ed. 2009)).

   47 C.F.R. S: 69.2(m) (emphasis added); 47 U.S.C. S: 153(53) (emphasis
   added). The Commission's defining "end user" as a customer of a service
   offered for a fee furthers 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. The Commission has concluded that, to the
   extent consistent with universal service, a reasonable portion of a LEC's
   costs in providing the facilities linking a particular individual or
   entity to a CLEC's central office (i.e., the "common line") should be paid
   by that individual or entity: "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." MTS and WATS Market Structure,
   Memorandum Opinion and Order, 97 FCC 2d 682, 686, P: 7 (1983) (discussing
   the decision to impose the common line charge on end users); see also CLEC
   Access Charge Reform Reconsideration Order, 19 FCC Rcd at 9127, n.132
   (noting that price cap carriers "recover the majority of interstate common
   line costs from their end users" and that rate-of-return carriers "recover
   all of their interstate common line costs through a combination of
   end-user charges and universal service") (citations omitted).

   Petition for Declaratory Ruling that pulver.com's Free World Dialup is
   Neither Telecommunications Nor a Telecommunications Service, Memorandum
   Opinion and Order, 19 FCC Rcd 3307, 3312-13, P: 10 (2004). Thus, Northern
   Valley's reliance on cases construing "customer" in dissimilar contexts is
   misplaced. See Answer, Legal Analysis at 19 (citing Alhambra-Grantfork
   Tel. Co. v. Ill. Commc'ns Comm'n, 832 N.E.2d 869, 873 (Ill. App. Ct. 2005)
   (construing an Illinois statute permitting tariff revisions only if
   adequate notice is given to "all potentially affected customers")); id. at
   20 (citing Am. States Ins. Co. v. Hartford Cas. Ins. Co., 950 F. Supp.
   885, 887 (C.D. Ill. 1997) (construing a car dealer's liability insurance
   policy pursuant to Illinois law to determine whether a person who
   test-drives a car is the car dealer's "customer")).

   Answer, Legal Analysis at 14.

   See Answer, Legal Analysis at 12, 15-16 & n.42 (citing 47 U.S.C. S:
   153(20), (55)).

   Answer, Legal Analysis at 12-13.

   Answer, Legal Analysis at 12; 47 U.S.C. S: 153(20).

   Answer, Legal Analysis at 12; 47 U.S.C. S: 153(55).

   47 U.S.C. S: 416(c).

   See CLEC Access Charge Reform Reconsideration Order, 19 FCC Rcd at 9114,
   P:P: 13, 15.

   Answer, Legal Analysis at 9-10.

   Answer, Legal Analysis at 7-11. Id. at 10-11.

   Answer, Legal Analysis at 9 (citing Qwest Communications Corp. v. Farmers
   and Merchants Mut. Tel. Co., Memorandum Opinion and Order, 22 FCC Rcd
   17973 (2007) ("Qwest v. Farmers I"), recon. granted in part Qwest v.
   Farmers II, 24 FCC Rcd 14801).

   See 47 C.F.R. S: 1.773 (establishing procedures for suspending entire
   tariffs or particular provisions in a tariff); see also, e.g., Ameritech
   Operating Companies Transmittal No. 1430, Revisions to Tariff F.C.C. No.
   2, Order, 19 FCC Rcd 24932 (2004) (suspending tariffs for investigation);
   Bell Atlantic Tel. Cos. Transmittal No. 418, Revisions to Tariff F.C.C.
   No. 1, Order, 6 FCC Rcd 4794, 4795, P: 12 (Common Carrier Bur. 1991)
   (rejecting an access tariff because it "would apply Carrier Common Line
   Charges to a service which does not use common line facilities" even
   though the tariff was filed precisely to authorize such charges); Halprin,
   13 FCC Rcd at 22568, P: 1 (ordering tariff revisions in the context of a
   section 208 proceeding).

   Farmers I, 22 FCC Rcd at 17977, P: 13.

   See Complaint at 1 ("The Complaint raises ... one issue of law: May a ...
   LEC ... consistent with the existing access charge rules, tariff the full
   panoply of switched access services (including `end office' switched
   access services) covering the delivery of traffic to entities that are not
   its end-user customers?").

   See Qwest v. Farmers I, 22 FCC Rcd at 17987, P: 38 ("We find that Farmers'
   payment of marketing fees to the conference calling companies does not
   affect their status as customers, and thus end users, for purposes of
   Farmers' tariff.").

   Answer, Legal Analysis at 21 ("Qwest cannot meet its burden to show ...
   that Northern Valley has violated the Act by merely arguing that Northern
   Valley's Tariff could be unlawful under a contrived set of circumstances
   and without any showing that those circumstances have actually occurred or
   will occur.").

   The Associated Press Request for Declaratory Ruling, Memorandum Opinion
   and Order, 72 FCC2d 760, 762, P: 2 (1979).

   Answer, Legal Analysis at 4. Revenue sharing is a key component of access
   stimulation arrangements: Far from purchasing services from the LEC, the
   conference calling company or other entity is paid by the LEC for the
   increased revenues generated by the arrangement. See Connect America Fund,
   26 FCC Rcd at 4758, P: 636; see also Farmers II, 24 FCC Rcd at 14809, P:
   17. These inflated access costs are paid by unwilling IXCs - and
   "ultimately borne by consumers" of interexchange services. See Connect
   America Fund, 26 FCC Rcd at 4559, P: 7; see also id. at 4710, P: 507 ("The
   record indicates that the impact of these arbitrage opportunities is
   significant and may cost the industry hundreds of millions of dollars each
   year.").

   47 U.S.C. S: 208(a).

   See Answer, Legal Analysis at 5; see also Joint Statement at 2, P: 5.

   See Graphnet, Inc. v. AT&T Corp., Memorandum Opinion and Order, 17 FCC Rcd
   1131, 1146, P: 43 (2002) ("Graphnet").

   See Answer, Legal Analysis at 5, n.8; 47 C.F.R. S: 1.773(a)(ii) (providing
   that tariff filings by nondominant carriers will be considered prima facie
   lawful, and will not be suspended by the Commission unless the petition
   requesting suspension shows: (a) that there is a high probability the
   tariff would be found unlawful after investigation; (b) that the harm
   alleged to competition would be more substantial than the injury to the
   public arising from the unavailability of the service pursuant to the
   rates and conditions proposed in the tariff filing; (c) that irreparable
   injury will result if the tariff filing is not suspended; and (d) that the
   suspension would not otherwise be contrary to the public interest). In
   contrast, a complainant in a section 208 complaint proceeding need show a
   violation of the Act only "by a preponderance of the evidence." Contel of
   the South, Inc., et al. v. Operator Communications, Inc., Memorandum
   Opinion and Order, 23 FCC Rcd 548, 552, P: 10 (2008); Consumer.Net v. AT&T
   Corp., Order, 15 FCC Rcd 281, 284-85, P: 6 (1999); Consumer.Net, LLC and
   Russ Smith v. Verizon Communications, Inc., Memorandum Opinion and Order,
   25 FCC Rcd 2737, 2740, P: 10 (Enf. Bur. Apr. 1, 2010); Paul Demoss, Paul
   Demoss Trading As 1-800-America, and America's Gift Foundation, Inc. v.
   Sprint Communications Company, L.P., Memorandum Opinion and Order, 23 FCC
   Rcd 5547, 5550, P: 15 (Enf. Bur. Apr. 7, 2008). See also Graphnet, 17 FCC
   Rcd at 1146, P: 43.

   47 C.F.R. S: 1.721(a)(8) (requiring complaints to contain a certification
   that the complainant has, in good faith, discussed or attempted to discuss
   the possibility of settlement with the defendant prior to the filing of
   the formal complaint). See Answer at 9.

   See Answer at 8 (Affirmative Defenses), P: 4.

   See n.35 above.

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   Federal Communications Commission FCC 11-87