Before the

**FEDERAL COMMUNICATIONS COMMISSION**

**Washington, DC 20554**

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| Mountain Communications, Inc., | )      | File No. EB-00-MD-017     |
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| Complainant,                   |        |                           |
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| v\.                            |        |                           |
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| Qwest Communications           |        |                           |
| International, Inc.,           | )      |                           |
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| Defendant.                     | )      |                           |
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+--------------------------------+--------+---------------------------+

## ORDER ON REVIEW

  ----------------------------------- -----------------------------------
  **Adopted:** July 23, 2002          **Released:** July 25, 2002

  ----------------------------------- -----------------------------------

By the Commission:

**I. INTRODUCTION**

1 In this Order on Review, we deny Mountain Communications, Inc.'s
("Mountain") application for review[^1] of the Memorandum Opinion and
Order[^2] in the above-captioned matter issued by the Enforcement Bureau
("Bureau"). In the *Mountain Order*, the Bureau denied Mountain's
complaint alleging that Qwest Communications International, Inc.
("Qwest"), an incumbent local exchange carrier ("LEC"), violated
sections 51.703 and 51.709(b) of the Commission's rules[^3] by charging
Mountain, a commercial mobile radio service ("CMRS") carrier, for costs
associated with "transiting traffic" and for the facilities used to
provide "wide area calling." Mountain provides us with insufficient
justification to overturn the Bureau's conclusions in the *Mountain
Order*, and, therefore, we deny the *Mountain Petition*.

II. **II. DISCUSSION**

**A. Qwest May Lawfully Charge Mountain for Transiting Traffic.**

2\. Mountain first contends that the Bureau erred in finding that Qwest
may lawfully charge Mountain for a portion of the facilities used for
the transport of transiting traffic.[^4] As it did in its complaint,
Mountain argues that Qwest is "double recovering" for those facilities,
that the Commission's rules and orders prohibit such charges, and that
the Commission erred in the *TSR Wireless Order*[^5] in allowing LECs to
charge for transiting traffic.[^6] The Bureau considered and rejected
all of these allegations in the *Mountain Order.*[^7] Moreover, the
Commission has subsequently reaffirmed its determination that a LEC may
lawfully charge a CMRS carrier for the facilities used in transporting
transiting traffic.[^8] In addition, Mountain again fails to support its
double recovery allegations with any evidence that Qwest already
recovers for the facilities in question from some other source.[^9]
Thus, Mountain provides no basis for us to overturn the Bureau's
decision.

3\. Further, Mountain argues that the Bureau's order is flawed because
it relies on a purportedly incorrect finding by the Commission in the
*Texcom Order*. According to Mountain, the Commission wrongly concluded
in the *Texcom Order* that the interconnecting LEC was the terminating
carrier with respect to call traffic sent to a CMRS carrier. Mountain
argues that the Bureau relied on this incorrect conclusion in
determining that Mountain, rather than Qwest, is responsible for the
cost of facilities used to deliver transiting traffic to Mountain.[^10]
Mountain's reading of the *Texcom* *Order* is incorrect. The Commission
in the *Texcom Order* stated that the CMRS carrier, not the
interconnecting LEC, was the terminating carrier.[^11] The Commission
subsequently confirmed this point in the *Texcom Reconsideration
Order*.[^12] Accordingly, the Commission concluded that the
interconnecting LEC, *because* it is not a terminating carrier, could
not recover reciprocal compensation payments for transiting traffic, and
the interconnecting LEC could charge the CMRS carrier for the transport
of such traffic.[^13] Thus, Mountain's reliance on an incorrect reading
of the *Texcom Order* does not justify overturning the Bureau's
decision.

B.  **Qwest May Lawfully Charge Mountain for Wide Area Calling.**

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4.  Mountain claims that the Bureau erred in its determination that
    Qwest may lawfully charge Mountain for wide area calling.[^14] The
    Bureau's order stated that the wide area calling arrangement at
    issue involves Qwest's provision of dedicated toll facilities to
    Mountain that connect the Direct Inward Dialing ("DID") numbers that
    Mountain has obtained in each of Qwest's local calling areas to
    Mountain's interconnection point in another local calling area.
    [^15] The Bureau found that this enabled the calling customer in
    each of Qwest's local calling areas to dial a local number to reach
    a Mountain subscriber and avoid incurring toll charges.[^16]
    Mountain first disputes the Bureau's finding that the
    interconnection arrangement it has obtained from Qwest constitutes
    wide area calling.[^17] Mountain maintains that wide area calling is
    limited to a reverse billing arrangement[^18] and does not encompass
    the provision of facilities.[^19] In addition, Mountain denies that
    the T-1 facilities it obtains from Qwest to connect the DID numbers
    used by Mountain's customers in each of Qwest's local calling areas
    to Mountain's interconnection point are "dedicated toll facilities"
    because those facilities do not carry "toll" traffic.[^20] Mountain
    maintains that the T-1 lines provisioned by Qwest are simply
    facilities required to effectuate a single point of interconnection
    within a Local Access and Transport Area ("LATA"), for which Qwest
    is responsible pursuant to section 51.703(b) of the Commission's
    rules.[^21] Mountain also contends that the Bureau's ruling is
    inconsistent with the Commission's *TSR Wireless* *Order*, because
    the network configuration discussed in the *TSR Wireless Order* is
    identical to Mountain's arrangement with Qwest.[^22]

5\. We are not persuaded by Mountain's arguments. As an initial matter,
Mountain's understanding of wide area calling is incorrect. As the
Commission pointed out in the *TSR Wireless Order*, wide area calling
allows a paging carrier to subsidize the cost of calls from a LEC's
customers to the paging carrier's customers, when the LEC must complete
those calls by transporting the calls from one local calling area to
another.[^23] A reverse billing arrangement is *only one of several
types* of wide area calling services, and the T-1 lines that constitute
the "dedicated toll facilities" in Mountain's interconnection
arrangement with Qwest are referred to as such because their sole
function is to route the DID numbers to Mountain's point of
interconnection in Pueblo.[^24] By establishing a point of
interconnection in Pueblo, obtaining DID numbers that reside in Qwest's
central offices in Pueblo, Walsenberg, and Colorado Springs, and then
requesting T-1 lines from Qwest to connect those DID numbers to its
point of interconnection in Pueblo, Mountain ensures that calls to the
DID numbers in each of the relevant Qwest central offices appear local
and involve no toll charges to callers in those areas.[^25] By
configuring its interconnection arrangement in this manner, Mountain
prevents Qwest from charging its customers for what would ordinarily be
toll calls to access Mountain's network. Accordingly, Mountain has
obtained a wide area calling service for which it must compensate Qwest.
Mountain's position that the lack of a written agreement between the
parties indicates that no wide area calling arrangement with Qwest
exists is meritless.[^26] Mountain's ordering and acceptance of the T-1
facilities from a tariff that create a wide area calling arrangement
constitutes an agreement between the parties regarding the provisioning
of this service.[^27]

6\. Mountain is correct that the network configuration discussed in the
*TSR Wireless* *Order* is similar to Mountain's arrangement with
Qwest.[^28] Contrary to Mountain's contentions, however, the *Mountain
Order* did not alter the Commission's position in the *TSR Wireless
Order* that, pursuant to section 51.701(b) of the Commission's rules, a
LEC may not charge a CMRS carrier for the delivery of LEC-originated
traffic that originates and terminates within the same Major Trading
Area ("MTA").[^29] The *Mountain Order* merely reiterated that a LEC is
entitled to charge its *own subscribers* for intraLATA toll calls on its
network that terminate within the same MTA, and that the LEC may charge
a CMRS carrier for services that are not necessary to effectuate
interconnection.[^30] Mountain's wide area calling arrangement with
Qwest is not necessary to effectuate interconnection.[^31] In fact,
Mountain is free to cancel both the DID numbers and the dedicated toll
facilities connecting those DID numbers to Mountain's single of point of
interconnection, and instead permit Qwest to bill its own end users for
toll calls to Mountain's point of interconnection. Indeed, that is
precisely the choice the Commission contemplated in addressing the
network configuration at issue in the *TSR Wireless Order*. Moreover,
because Mountain's network arrangement is not necessary for
interconnection, Qwest's charges do not implicate the good faith
negotiations obligations under section 251(c)(1) of the Act.[^32] Thus,
Qwest's assessment of a flat monthly rate for the T-1 lines Mountain has
leased to effectuate wide area calling is permissible.

7\. Lastly, we reject Mountain's claim that the Bureau's wide area
calling determination allows Qwest to double recover for the facilities
used to deliver traffic to Mountain, because Qwest already receives
compensation for these facilities from Qwest's subscribers and third
party carriers that originate traffic onto Qwest's network.[^33] As we
explained in the transiting traffic context, Qwest is not a terminating
carrier and cannot recover its costs for this portion of the network
through reciprocal compensation charges.[^34] Moreover, Mountain fails
to provide any evidence that Qwest is already recovering its transport
costs for the facilities in question from some other source.

**III. ORDERING CLAUSES**

8\. Accordingly, IT IS ORDERED, pursuant to sections 1, 4(i), 4(j),
5(c), 208, and 405 of the Communications Act of 1934, as amended, 47
U.S.C. §§ 151, 154(i), 154(j), 155(c), 208, 405, and section 1.106 of
our rules, 47 C.F.R. § 1.106, that the "Petition for Reconsideration"
filed by Mountain Communications IS DENIED.

FEDERAL COMMUNICATIONS COMMISSION

Marlene H. Dortch

Secretary

[^1]: Petition for Reconsideration of Memorandum Opinion and Order, File
    No. EB-00-MD-017 (filed Mar. 4, 2002) ("*Mountain Petition*").
    Although the Mountain Petition is titled "Petition for
    Reconsideration," we note that it is addressed "To: The Commission,"
    and cites 47 C.F.R. § 1.115, which establishes rules for filing an
    application for review of actions taken pursuant to delegated
    authority. Accordingly, we are treating the petition as an
    application for review.

[^2]: *Mountain Communications, Inc. v. Qwest Communications
    International, Inc.*, Memorandum Opinion and Order, 17 FCC Rcd 2091
    (2002) ("*Mountain Order*").

[^3]: *See* 47 C.F.R. §§ 51.703(b) and 51.709(b).

[^4]: *See Mountain Petition* at 3-6, ¶¶ 6--10; 20-22, ¶¶ 34-36; 22, ¶
    37; 23, ¶¶ 38-39; 24, ¶¶ 40. "Transiting traffic" refers to calls
    made to Mountain's customers originating from customers of carriers
    other than Qwest. *Mountain Order*, 15 FCC Rcd at 11911, ¶ 4.

[^5]: *TSR Wireless, LLC v. U S West Communications, Inc.,* Memorandum
    Opinion and Order, 15 FCC Rcd 11166, 11177, ¶ 19 n.70 (2000) ("*TSR
    Wireless Order*"), *aff'd sub. nom.*, *Qwest Corp. v. FCC*, 252 F.3d
    462 (D.C. Cir. 2001).

[^6]: *See Mountain Petition* at 3-6, ¶¶ 6-10 (addressing reciprocal
    compensation arguments); 20-22, ¶¶ 34-36 (addressing access charge
    arguments).

[^7]: *See* *Mountain Order*, 17 FCC Rcd at 2095, ¶ 10.

[^8]: *Texcom, Inc., d/b/a Answer Indiana v. Bell Atlantic Corp., d/b/a
    Verizon Communications*, Order on Reconsideration, FCC 02-96 (rel.
    Mar. 27, 2002) ("*Texcom Reconsideration Order*") at 2-3, ¶¶ 3-6.
    *See also* *Texcom, Inc., d/b/a Answer Indiana v. Bell Atlantic
    Corp., d/b/a Verizon Communications*, Memorandum Opinion and Order,
    16 FCC Rcd 21493, 21495-7, ¶¶ 5--13 (2002) ("*Texcom Order*").

[^9]: *See Mountain Petition* at 3-6, ¶¶ 6-10; 20-22, ¶¶ 34-36.

[^10]: *Mountain Petition* at 4-5, ¶¶ 6--8. Mountain asserts that 47
    C.F.R. § 51.701(c) and the Bureau's previous orders require a LEC to
    provide the transport for all call traffic, including transiting
    traffic, because the equipment that is used in this transport
    function up to the point of interconnection is part of the LEC's
    network. *Id.* at 5-6, ¶¶ 9-10.

[^11]: *Texcom Order,* 16 FCC Rcd at 21496, ¶ 10. *See also Texcom
    Reconsideration Order* at 2-3, ¶ 4 (stating that GTE North is not a
    terminating carrier); *TSR Wireless Order*, 15 FCC Rcd at 11180-81,
    ¶ 24 (finding that paging carriers terminate calls within the
    meaning of section 51.701(d)).

[^12]: *Texcom Reconsideration Order* at 2-3, ¶ 4.

[^13]: *Texcom Reconsideration Order* at 2-3, ¶ 4. Further, the
    Commission and the Bureau have made clear that a terminating carrier
    may seek reimbursement of these costs from originating carriers
    through reciprocal compensation. *Id.; Mountain Order*, 17 FCC Rcd
    at 2095, ¶ 10 n.30; *Metrocall, Inc. v. Concord Telephone Co*.,
    Memorandum Opinion and Order, 17 FCC Rcd 2252, 2257, ¶11 n.41
    (2002).

[^14]: *See Mountain Petition* at 7-20, ¶¶ 11-33.

[^15]: *Mountain Order*, 17 FCC Rcd at 2092, ¶ 3.

[^16]: *Id.*

[^17]: *Mountain Petition.* at 7-14, ¶¶ 11-23. Mountain's contention
    that it does not obtain interconnection services from Qwest is
    belied by the obvious fact that it would not be able to receive any
    calls on its network from Qwest's network without Qwest's provision
    of interconnection. *Id.* at 3, ¶ 3.

[^18]: A reverse billing arrangement is one in which the LEC assesses a
    per minute usage charge to the CMRS carrier, in place of a toll
    charge to the originator of the call. *See TSR Wireless Order*, 15
    FCC Rcd at 11169, ¶ 6 n.6.

[^19]: *See Mountain Petition* at 7-14, ¶¶ 11-23.

[^20]: *Id.* at 8, ¶ 13; 11, ¶ 18.

[^21]: *Id.* at 11-14, ¶¶ 19-23.

    ^?^ *Id.* at 11, ¶ 19.

[^22]: *Id.* at 16-18, ¶¶ 26-28.

[^23]: *TSR Wireless Order*, 15 FCC Rcd at 11177, ¶¶ 30-31; *Mountain
    Order*, 17 FCC Rcd at 2092, ¶ 3.

[^24]: *Mountain Order*, 17 FCC Rcd at 2092, ¶ 3.

[^25]: *See* Qwest Corporation's Opposition to Mountain's Petition for
    Reconsideration of Memorandum Opinion and Order, File No.
    EB-00-MD-017 (filed Mar. 18, 2002) at 6.

[^26]: *See Mountain Petition* at 18-20, ¶¶ 29-33.

[^27]: *Mountain Order*, 17 FCC Rcd at 2097, ¶ 13.

[^28]: *See TSR Wireless Order*, 15 FCC Rcd at 11177, ¶ 31.

[^29]: *Mountain Order*, 17 FCC Rcd at 2096, ¶11; *TSR Wireless Order*,
    15 FCC Rcd at 11177, ¶ 31.

[^30]: *Mountain Order*, 17 FCC Rcd at 2096, ¶11; *TSR Wireless Order*,
    15 FCC Rcd at 11177, ¶¶ 30-31.

[^31]: *Mountain Order*, 17 FCC Rcd at 2097, ¶13; *TSR Wireless Order*,
    15 FCC Rcd at 11177, ¶ 31.

[^32]: *See Mountain Petition* at 18-20, ¶¶ 29-33. 47 U.S.C. §
    251(c)(1).

[^33]: *See Mountain Petition* at 14-16, ¶¶ 24-25.

[^34]: *See supra* ¶ 3.