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 Federal  Communications  Commission  DA  02-  250 
 Before  the 
 FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  DC  20554 


 Mountain  Communications,  Inc., 
 Complainant, 
 v. 
 Qwest  Communications  International,  Inc., 
 Defendant. 


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 File  No.  EB-  00-  MD-  017 


 MEMORANDUM  OPINION  AND  ORDER 
 Adopted:  January  31,  2002  Released:  February  4,  2002 


 By  the  Chief,  Enforcement  Bureau: 
 I.  INTRODUCTION 
 1.  In  this  Memorandum  Opinion  and  Order,  we  deny  the  above-  captioned  formal 
 complaint  that  Mountain  Communications,  Inc.  (  Mountain)  filed  against  Qwest  Communications 
 International,  Inc.  (  Qwest,  formerly  U  S  West  Communications,  Inc.)  pursuant  to  section  208  of 
 the  Communications  Act  of  1934,  as  amended  (the  Act).  1  Mountain,  a  Commercial  Mobile 
 Radio  Service  (  CMRS)  paging  provider,  alleges  that  Qwest  violated  sections  51.703(  b)  and 
 51.709(  b)  of  the  Commissions  rules  2  by  charging  Mountain  for  transporting  certain  traffic.  3 


 1  47  U.  S.  C.    208.  Qwest  is  the  successor  to  U  S  WEST  Communications,  Inc.,  following  the  companies  June 
 30,  2000  merger.  See  Qwest  Communications  International,  Inc.  and  U  S  WEST,  Inc.,  Applications  for  Transfer  of 
 Control  of  Domestic  and  International  Sections  214  and  310  Authorizations  and  Application  to  Transfer  Control 
 of  a  Submarine  Cable  Landing  License,  Memorandum  Opinion  and  Order,  15  FCC  Rcd  11909  (2000).  Although 
 much  of  the  conduct  at  issue  occurred  before  the  merger,  we  refer  to  the  defendant  only  as  Qwest  in  this  order. 


 2  See  47  C.  F.  R.    51.703(  b)  and  51.709(  b). 


 3  Mountain  also  alleged  in  its  complaint  that  Qwest  violated  section  51.  305  of  the  Commissions  rules,  47  C.  F.  R. 
   51.305,  and  sections  201,  251,  and  252  of  the  Act,  47  U.  S.  C.    201,  251,  252,  by  failing  to  negotiate  an 
 interconnection  agreement  with  Mountain  in  good  faith.  See  Formal  Complaint  of  Mountain  Communications,  Inc,  File 
 No.  EB-  00-  MD-  017,  at  12-  18  (filed  Sep.  11,  2000)  (  Mountain  Complaint).  However,  we  previously  dismissed 
 these  claims  without  prejudice  on  procedural  grounds.  See  Letter  Ruling  from  Frank  G.  Lamancusa,  Deputy  Chief, 
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 Federal  Communications  Commission  DA  02-  250 
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 Based  on  the  principles  established  in  the  TSR  Wireless  Order  4  and  the  Texcom  Order,  5  we  deny 
 Mountains  claims.  In  short,  we  find  that  Qwest  may  lawfully  charge  Mountain  for  costs  associated 
 with  transiting  traffic  and  for  facilities  used  to  provide  wide  area  calling. 


 II.  BACKGROUND 
 2.  Mountain  offers  one-  way  paging  services  to  its  customers  in  the  state  of 
 Colorado.  6  Qwest  is  the  incumbent  local  exchange  carrier  (  LEC)  offering  local  telephone 
 service  to  the  public  in  Colorado.  7  Qwest  serves  as  the  interconnecting  LEC  for  Mountains 
 paging  facilities  and  transports  calls  from  the  public  switched  network  to  Mountains  network.  8 
 Qwest  has  been  providing  such  interconnection  services  to  Mountain  since  at  least  November 
 1996.  9 


 3.  The  services  that  Mountain  obtains  from  Qwest  include  a  wide  area  calling 
 service.  10  With  respect  to  service  provided  to  paging  carriers,  wide  area  calling  refers  generally  to 
 an  arrangement  that  allows  a  paging  carrier  to  subsidize  the  cost  of  calls  from  a  LECs  customers 
 to  the  paging  carriers  customers,  when  completing  such  calls  requires  the  LEC  to  transport  them 
 from  one  of  its  local  calling  areas  to  another  of  its  local  calling  areas.  11  One  example  of  a  wide 
 area  calling  arrangement  is  known  as  reverse  billing  or  reverse  toll,  in  which  a  LEC  agrees 


 Market  Disputes  Resolution  Division,  File  No.  EB-  00-  MD-  017  (Sep.  19,  2001)  (  Letter  Ruling). 
 4  TSR  Wireless,  LLC  v.  U  S  West  Communications,  Inc.,  Memorandum  Opinion  and  Order,  15  FCC  Rcd 
 11166  (2000)  (  TSR  Wireless  Order),  affd  sub.  nom.,  Qwest  Corp.  v.  FCC,  252  F.  3d  462  (D.  C.  Cir.  2001). 
 5  Texcom,  Inc.,  d/  b/  a  Answer  Indiana  v.  Bell  Atlantic  Corp.,  d/  b/  a  Verizon  Communications,  Memorandum 
 Opinion  and  Order,  FCC  01-  347  (rel.  Nov.  28,  2001)  (  Texcom  Order  or  Texcom),  Petition  for  Reconsideration  pending. 
 6  See  Joint  Statement  of  Mountain  Communications,  Inc.  and  Qwest  Communications  International,  Inc.,  File 
 No.  EB-  00-  MD-  017,  at  5  (filed  Oct.  16,  2000)  (  Joint  Statement);  Mountain  Complaint  at  3;  Answer  of  Qwest 
 Communications  International,  Inc.,  File  No.  EB-  00-  MD-  017,  at  12  (filed  Oct.  2,  2000)  (  Qwest  Answer). 


 7  See  Joint  Statement  at  5;  Mountain  Complaint  at  3;  Qwest  Answer  at  12. 


 8  Mountain  Complaint  at  3;  Qwest  Answer  at  i,  13;  Joint  Statement  at  8. 
 9  See  Mountain  Complaint,  Exhibit  III  at  2;  Qwest  Answer  at  1,  13. 
 10  See  Qwest  Corporations  Brief  on  the  Disputed  Material  Issues,  File  No.  EB-  00-  MD-  017,  at  10-  13  (filed  Jan. 
 19,  2001)  (  Qwest  Brief). 
 11  See  TSR  Wireless  Order,  15  FCC  Rcd  at  11169,    6  n.  6.  During  the  relevant  period,  section  51.701(  b)(  1)  of 
 the  Commissions  rules  defined  a  LECs  local  calling  area  as  the  service  area,  defined  by  state  commissions,  within 
 which  calls  are  not  subject  to  toll  charges.  47  C.  F.  R.    51.701(  b)(  1)  (2000).  (The  Commission  has  since  amended 
 section  51.701(  b)(  1),  but  not  in  a  manner  relevant  here.  See  Implementation  of  the  Local  Competition  Provisions  in 
 the  Telecommunications  Act  of  1996,  Order  on  Remand  and  Report  and  Order,  16  FCC  Rcd  9151,  9167,    34,  and 
 9173,    46  (2001)  (  Reciprocal  Compensation  Remand  Order)).  Local  service  areas  for  CMRS  carriers,  by  contrast, 
 are  generally  referred  to  as  Major  Trading  Areas  (  MTAs).  47  C.  F.  R.    51.701(  b)(  2).  MTAs  are  based  on  the  Rand 
 McNally  1992  Commercial  Atlas  and  Marketing  Guide,  123  rd  edition,  at  pages  38-  39,  with  several  exceptions  and 
 additions  set  forth  in  47  C.  F.  R.  24.202(  a).  47  C.  F.  R.  24.202(  a).  MTAs  are  typically  larger  than  local  calling  areas 
 applicable  to  LECs.  TSR  Wireless  Order,  15  FCC  Rcd  at  11177,    31. 
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 with  a  paging  carrier  not  to  assess  toll  charges  on  calls  from  the  LECs  end  users  to  the  paging 
 carriers  end  users,  in  exchange  for  the  paging  carrier  paying  the  LEC  a  per-  minute  fee  to  recover 
 the  LECs  toll  carriage  costs.  12  The  wide  area  calling  arrangement  at  issue  here  involves  Qwests 
 provision  of  dedicated  toll  facilities  to  Mountain  that  connect  the  Direct  Inward  Dialing  (  DID)  13 
 numbers  that  Mountain  has  obtained  in  each  of  Qwests  local  calling  areas  to  Mountains 
 interconnection  point  in  another  Qwest  local  calling  area.  This  enables  the  calling  customer  in 
 each  of  Qwests  local  calling  areas  to  dial  a  local  number  to  reach  a  Mountain  subscriber  and 
 avoid  incurring  toll  charges.  14 


 4.  As  part  of  the  interconnection  services  it  provided  to  Mountain  beginning  in  1996, 
 Qwest  transported  calls  made  by  its  customers  to  Mountains  customers.  15  Qwest  also  transported 
 transiting  traffic  to  Mountain,  i.  e.,  calls  to  Mountains  customers  originating  from  customers  of 
 carriers  other  than  Qwest.  16 


 5.  Beginning  in  1998,  Mountain  requested  that  Qwest  cease  assessing  Mountain  any 
 charges  associated  with  the  delivery  of  traffic  to  Mountains  network  and  issue  refunds  for  all  such 
 charges  paid  by  Mountain  since  August  1996.  17  Over  the  course  of  the  next  two  years,  the  parties 
 attempted  to  resolve  their  dispute  regarding  the  charges  at  issue,  but  were  unsuccessful.  18  Mountain 
 t  hen  filed  the  inst  ant  complaint  . 


 6.  Mountains  complaint  alleges  two  claims  that  we  must  address  in  this  order: 
 1)  that  Qwest  violated  sections  51.703(  b)  and  51.709(  b)  of  the  Commissions  rules  by  charging 
 Mountain  for  the  transport  of  transiting  traffic  to  Mountains  network;  19  and  2)  that  Qwest 


 12  See  TSR  Wireless  Order,  15  FCC  Rcd  at  11169,    6  n.  6. 
 13  Direct  Inward  Dialing"  or  "DID"  is  a  service  that  reduces  the  facilities  needed  (and  thus  the  cost)  to  carry 
 traffic  between  a  local  exchange  carrier  and  a  customer  with  multiple  telephone  numbers  by  transporting  that  traffic  over 
 significantly  fewer  lines.  Unlike  normal  telephone  service,  which  requires  dedicated  facilities  for  each  number,  a  DID 
 service  transports  traffic  over  shared  facilities  to  the  customer's  premises.  For  example,  a  100-  telephone  number 
 customer  purchasing  DID  service  might  need  only  10  lines  to  carry  traffic  between  its  premises  and  the  network,  as 
 opposed  to  the  100  individual  lines  needed  for  traditional  service.  DID  service  also  supports  additional  features  that  can 
 result  in  further  cost  savings.  See  generally  Annabel  Z.  Dodd,  The  Essential  Guide  to  Telecommunications,  48-  49 
 (2d  ed.  1999);  Harry  Newton,  Newtons  Telecom  Dictionary,  264-  65  (16  th  ed.  2000). 


 14  See  Qwest  Brief  at  10-  12,  Second  Supplemental  Declaration  of  Sheryl  R.  Fraser,  at    7-  8.  Mountain 
 contends  that  the  service  described  above  is  not  a  wide  area  calling  service  within  the  meaning  of  the  TSR  Wireless 
 Order.  Mountain  Communications,  Inc.  Reply  to  Qwest  Corporations  Brief  on  the  Disputed  Material  Issues,  File  No. 
 EB-  00-  MD-  017,  at  8-  10  (filed  Jan.  26,  2001)  (  Mountain  Reply).  As  discussed,  infra,  we  disagree  with  Mountain. 


 15  Mountain  Complaint  at  3;  Qwest  Answer  at  13. 


 16  See  TSR  Wireless  Order,  15  FCC  Rcd  at  11177,    19  n.  70;  Mountain  Complaint  at  11;  Exhibit  23,  at  2; 
 Qwest  Answer  at  10;  23;  Joint  Statement  at  8. 
 17  See  Mountain  Complaint  at  3,  22,  Exhibits  III  and  IV. 


 18  As  of  February  16,  1998,  Mountain  ceased  to  pay  any  charges  Qwest  billed  it  for  its  continuing  receipt  of 
 interconnection  services.  See  Qwest  Answer  at  4. 
 19  See  Mountain  Complaint  at  9-  11;  Joint  Statement  at  10;  Mountain  Communications,  Inc.  Brief,  File  No.  EB- 
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 violated  sections  51.703(  b)  and  51.709(  b)  of  the  Commissions  rules  by  charging  Mountain  for 
 the  facilities  used  to  transport  certain  Qwest-  originated  traffic  to  Mountains  network.  20  For  the 
 reasons  discussed  below,  we  deny  both  claims. 


 III.  DISCUSSION 
 A.  The  Commission  Has  Jurisdiction  to  Adjudicate  Mountains  Complaint 
 7.  Qwest  asserts  that  we  lack  jurisdiction  to  adjudicate  disputes  concerning  sections 
 51.703(  b)  and  51.709(  b)  of  the  Commissions  rules  where,  as  here,  the  disputing  parties  lack  an 
 interconnection  agreement  under  sections  251  and  252  of  the  Act.  21  The  Commission  has  already 
 rejected  this  argument.  22  Consequently,  we  do  so  here,  as  well,  and  rule  that  we  have  jurisdiction 
 to  adjudicate  Mountains  claims. 


 B.  Qwest  May  Lawfully  Charge  Mountain  for  Transiting  Traffic. 


 8.  Section  51.703(  b)  of  the  Commissions  rules  provides  that  [  a]  LEC  may  not 
 assess  charges  on  any  other  telecommunications  carrier  [including  a  paging  carrier]  for  local 
 telecommunications  traffic  that  originates  on  the  LECs  network.  23  Moreover,  section  51.709(  b) 
 of  the  Commissions  rules  requires  a  LEC  to  charge  a  connecting  carrier  for  dedicated 
 transmission  facilities  used  to  carry  traffic  between  the  two  carriers  based  solely  on  the  amount  of 
 traffic  that  the  connecting  carrier  sends  back  to  the  LEC.  24  In  the  TSR  Wireless  Order  and  the 
 Texcom  Order,  the  Commission  construed  these  rules  to  mean  that  an  interconnecting  LEC  may 
 charge  a  paging  carrier  for  the  transport  of  transiting  traffic.  25 


 9.  Mountain  contends  that  Qwest  violates  sections  51.703(  b)  and  51.709(  b)  of  the 
 00-  MD-  017,  at  1-  6  (filed  Jan.  8,  2001)  (  Mountain  Brief);  Mountain  Reply  at  4-  7;  Mountain  Communication,  Inc.  s 
 Opposition  to  Qwests  Motion  to  Dismiss,  File  No.  EB-  00-  MD-  017,  at  3-  10  (filed  Jan.  10,  2001)  (  Mountain 
 Opposition). 


 20  See  Mountain  Complaint  at  10-  12;  Joint  Statement  at  10;  Mountain  Brief  at  7-  9;  Mountain  Reply  at  7-  9. 
 Mountain  improperly  uses  the  term  termination  to  characterize  the  transport  function  that  Qwest  provides  Mountain. 
 Qwest  does  not  terminate  the  traffic  it  carries  to  Mountains  network  within  the  meaning  of  the  Commissions  rules. 
 See,  e.  g.,  47  C.  F.  R.    51.701(  d)  (termination  is  the  switching  of  telecommunications  traffic  from  the  terminating 
 carriers  end  office  switch  and  delivery  of  such  traffic  to  the  called  partys  premises).  Thus,  we  view  Mountains  claim 
 as  addressing  the  lawfulness  of  Qwests  charges  for  the  transport  of  certain  traffic  to  Mountain,  not  the  termination  of 
 such  traffic. 


 21  See  Qwest  Answer  at  32.  See  47  U.  S.  C.    251  and  252. 


 22  See  TSR  Wireless  Order,  15  FCC  Rcd  at  11172,    13;  Qwest  Corp.  v.  FCC,  252  F.  3d  at  463. 
 23  47  C.  F.  R.    51.703(  b). 
 24  47  C.  F.  R.    51.709(  b)  (  The  rate  of  a  carrier  providing  transmission  facilities  dedicated  to  the  transmission  of 
 traffic  between  two  carriers  networks  shall  recover  only  the  costs  of  the  proportion  of  that  trunk  capacity  used  by  an 
 interconnecting  carrier  to  send  traffic  that  will  terminate  on  the  providing  carriers  network). 


 25  TSR  Wireless  Order,  15  FCC  Rcd  at  11177,    19  n.  70. 
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 Commissions  rules  by  charging  Mountain  for  the  transport  of  transiting  traffic.  26  In  particular, 
 Mountain  argues  that:  1)  the  TSR  Wireless  Order  misconstrued  section  51.703(  b),  because  the 
 Commissions  rules  do  not  allow  LECs  to  charge  for  transiting  traffic;  27  2)  we  should  consider  all 
 traffic  that  terminates  on  Mountains  network  to  have  originated  on  Qwests  network;  28  and  3) 
 permitting  Qwest  to  charge  for  transiting  traffic  would  allow  it  to  recover  its  costs  twice,  because 
 Qwest  already  receives  adequate  compensation  for  carrying  this  traffic  from  other  sources,  such 
 as  long  distance  carriers  and  other  interconnecting  LECs.  29 


 10.  Mountains  arguments  mirror  those  that  the  Commission  recently  rejected  in  the 
 Texcom  case.  30  Because  Mountain  raises  no  issues  of  law  or  fact  that  were  not  fully  considered  in 
 Texcom,  we  apply  Texcoms  reasoning  here  and  reject  Mountains  arguments  regarding  Qwests 
 treatment  of  transiting  traffic.  Accordingly,  we  conclude  that  Qwest  does  not  violate  sections 
 51.703(  b)  and  51.709(  b)  of  the  Commissions  rules  by  assessing  Mountain  charges  associated 
 with  transiting  traffic.  31 


 26  See  Mountain  Complaint  at  9-  11;  Mountain  Brief  at  1-  6;  Mountain  Reply  at  4-  7;  Mountain  Opposition  at  3-10. 
 Mountain  contends  for  the  first  time  in  its  briefs  that  Qwests  26.  2  percent  transiting  factor  --  which  estimates 
 how  much  of  the  total  traffic  that  Qwest  transports  to  Mountain  is  transiting  traffic  --  is  unreasonably  high.  See 
 Mountain  Communications,  Inc.  s  Opposition  to  Qwests  Motion  to  Dismiss,  File  No.  EB-  00-  MD-  017,  at  10-  11  (filed 
 Jan.  10,  2001)  (  Mountain  Opposition);  Mountain  Reply  at  7;  Mountain  Complaint,  Exhibit  XXIII.  Mountain  failed 
 to  raise  this  issue  in  its  complaint.  Therefore,  the  record  provides  an  inadequate  basis  on  which  to  assess  the  merits  of 
 this  potentially  complex  argument.  Accordingly,  we  decline  to  address  this  assertion  in  this  order.  See,  e.  g.,  AT&  T 
 Corp.  v.  Jefferson  Telephone  Co.,  Memorandum  Opinion  and  Order,  16  FCC  Rcd  16130,  16133  n.  18  (2001) 
 (declining  to  address  an  issue  raised  for  the  first  time  in  the  brief). 


 27  See  Mountain  Complaint  at  9-  10;  Mountain  Brief  at  3-  5;  Mountain  Opposition  at  4-  5. 


 28  See  Mountain  Complaint  at  2-  4,  6-  7;  Mountain  Opposition  at  5-  6;  Mountain  Brief  at  4. 
 29  See  Mountain  Complaint  at  5;  Mountain  Opposition  at  7-  8. 
 30  See  Texcom  Order,    5-  13.  As  the  Commission  indicated  in  Texcom,  the  CMRS  carrier  pays  the 
 interconnecting  LEC  for  the  costs  of  the  portion  of  facilities  used  to  transport  transiting  traffic  from  the  interconnecting 
 LEC's  network  to  the  CMRS  carrier's  network.  The  CMRS  carrier  may  then  seek  reimbursement  of  the  costs  associated 
 with  transport  and  termination  of  that  traffic  from  the  carriers  that  originated  the  transiting  traffic  in  question.  See  47 
 U.  S.  C.    251(  b)(  5);  47  C.  F.  R.    51.701,  et  seq. 


 31  Our  ruling  effectively  moots  Qwests  Motion  to  Dismiss,  in  which  Qwest  sought  dismissal  of  Mountains 
 claims  that  Qwest  could  not  charge  for  transiting  traffic.  See  Qwest  Corporations  Motion  to  Dismiss  Mountain 
 Communication,  Inc.  s  Transit  Claims,  File  No.  EB-  00-  MD-  017,  at  14  (filed  Jan.  2,  2001)  (  Motion  to  Dismiss). 
 Accordingly,  we  dismiss  the  Motion  to  Dismiss. 
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 C.  Qwest  May  Lawfully  Charge  Mountain  for  Wide  Area  Calling. 
 11.  As  discussed  earlier,  section  51.703(  b)  of  the  Commissions  rules  bars  a  LEC  from 
 charging  for  the  delivery  of  traffic  that  originates  on  the  LECs  own  network.  32  In  the  TSR 
 Wireless  Order,  the  Commission  found  that,  pursuant  to  section  51.703(  b),  a  LEC  may  not 
 charge  CMRS  providers  for  the  delivery  of  LEC-  originated  traffic  that  originates  and  terminates 
 within  the  same  Major  Trading  Area  (  MTA),  as  this  constituted  local  traffic  under  the 
 Commissions  rules.  33  The  Commission  noted,  however,  that  nothing  prevents  a  LEC  from 
 charging  its  end  users  for  intraLATA  toll  calls  that  originate  on  its  network  and  terminate  over 
 facilities  that  are  situated  entirely  within  a  single  MTA.  34  Thus,  if  a  LEC  end  user  makes  a  call 
 from  one  local  calling  area  to  a  paging  customer  whose  number  is  assigned  to  a  central  office  in 
 another  local  calling  area  of  the  LEC,  the  LEC  may  assess  the  caller  the  appropriate  toll  set  forth 
 in  its  local  tariff,  even  if  both  LEC  calling  areas  are  within  the  same  MTA.  Importantly,  however, 
 the  Commission  acknowledged  in  the  TSR  Wireless  Order  the  possibility  that  a  paging  carrier 
 might  want  to  avoid  having  callers  to  its  customers  pay  such  toll  charges.  Thus,  the  Commission 
 concluded  that  section  51.703(  b)  does  not  preclude  a  CMRS  carrier  and  a  LEC  from  entering  into 
 wide  area  calling  or  reverse  billing  arrangements  where  the  CMRS  carrier  can  buy  down  the 
 cost  of  such  calls  to  make  it  appear  to  the  LECs  end  users  that  they  have  made  a  local  call  rather 
 than  a  toll  call.  35  Moreover,  the  Commission  concluded  that  its  rules  do  not  prohibit  a  LEC  from 
 charging  the  paging  carriers  for  those  services.  36  The  Commissions  conclusion  that  section 
 51.703(  b)  allows  a  LEC  to  charge  for  wide  area  calling  or  similar  services  was  based  on  the  fact 
 that  wide  area  calling  services  are  not  necessary  for  interconnection  or  for  the  provision  of  service 
 by  a  paging  provider  to  its  customers,  as  well  as  the  recognition  that  the  Commissions  rules  do 
 not  require  LECs  to  offer  such  services  at  all.  37 


 12.  As  noted  above,  the  wide  area  calling  arrangement  at  issue  here  involves  Qwests 
 provision  of  dedicated  toll  facilities  that  connect  Mountains  DID  numbers  in  each  of  Qwests 
 local  calling  areas  to  Mountains  interconnection  point  in  another  Qwest  local  calling  area.  Thus, 
 the  calling  customer  in  each  of  the  local  calling  areas  calls  a  local  number  to  reach  a  Mountain 
 subscriber  and  avoids  incurring  toll  charges.  38  Mountain  contends  that  Qwest  violates  the 


 32  47  C.  F.  R.    51.703(  b). 


 33  TSR  Wireless  Order,  15  FCC  Rcd  at  11177,    31.  Mountain  notes  that  section  51.  701(  b)(  2)  defined  local 
 telecommunications  traffic  as  telecommunications  traffic  between  a  LEC  and  a  CMRS  provider  that,  at  the  beginning 
 of  a  call,  originates  and  terminates  within  the  same  MTA.  Id.  The  Commissions  recent  removal  of  the  word  local 
 from  section  51.703  does  not  alter  the  definition  contained  in  section  51.701(  b)(  2).  See  Reciprocal  Compensation 
 Remand  Order,  16  FCC  Rcd  at  9167,    34,  and  9173,    46. 


 34  TSR  Wireless  Order,  15  FCC  Rcd  at  11177,    31. 


 35  Id. 
 36  Id. 
 37  Id.  at  11177,    30. 
 38  See  Qwest  Brief  at  10-  12,  Second  Supplemental  Declaration  of  Sheryl  R.  Fraser,  at    7-  8. 
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 Commissions  rules  by  charging  Mount  ain  for  t  he  dedicat  ed  toll  facilit  ies  that  Qwest  uses  to 
 t  ransport  calls  made  to  Mount  ains  int  erconnect  ion  point  from  out  side  of  the  Qwest  local  calling  area 
 where  Mount  ains  int  erconnect  ion  point  resides.  39  Mountain  argues  that,  because  a  CMRS  carriers 
 local  calling  area  is  an  MTA,  Qwest  is  not  permitted  to  charge  Mountain  for  facilities  used  by  Qwest  to 
 deliver  calls  from  anywhere  within  the  MTA  to  Mountains  interconnection  point.  40  Mount  ain  similarly 
 maintains  that  Qwest  cannot  charge  it  for  facilities  Qwest  uses  to  deliver  to  Mountains  interconnection 
 point  calls  made  to  DID  numbers  that  are  out  side  the  Qwest  -defined  local  calling  area  but  wit  hin  the 
 same  MTA,  and  the  same  LATA,  because  those  facilities  are  used  to  deliver  Qwest-  originated  traffic  to 
 Mountain.  41 


 13.  Based  on  the  Commissions  analysis  of  wide  area  calling  arrangements  in  TSR 
 Wireless,  we  agree  with  Qwest  that  the  provision  of  dedicated  toll  facilities  by  Qwest  to  enable 
 Mountain  to  offer  its  customers  a  local  number  in  several  local  calling  areas  is  an  optional  service 
 that  is  not  necessary  for  interconnection.  42  We  note  that  Mountain  does  not  dispute  that  this 
 service  is  not  necessary  for  interconnection.  43  Moreover,  although  Qwest  concedes  that  it  must 
 allow  Mountain  to  interconnect  without  charge  at  any  point  within  an  MTA  that  is  within  the 
 LATA,  44  Qwest  disagrees  that  it  must  transport,  free  of  charge,  all  calls  made  to  Mountain  within 
 the  MTA  to  Mountains  interconnection  point.  Qwest  points  out  that,  for  those  calls  made  by  its 
 end  users  in  local  calling  areas  outside  the  local  calling  area  where  Mountains  interconnection 
 point  resides,  Qwest  would  ordinarily  assess  toll  charges  to  those  end  users,  pursuant  to  Qwests 
 General  Exchange  tariff  in  Colorado.  45  We  agree  with  Qwest  that,  pursuant  to  the  TSR  Wireless 
 Order,  if  Mountain  wants  to  avoid  having  callers  to  its  customers  pay  such  charges  to  access 
 Mountains  network,  it  may  enter  into  a  wide  area  calling  arrangement  with  Qwest.  Mountain  has 
 effectively  entered  into  such  an  arrangement  with  Qwest  by  requesting  dedicated  toll  facilities  to 
 transport  calls  made  to  DID  numbers  provided  to  Mountains  customers,  free  of  charge  to 
 Qwests  customers.  We,  therefore,  conclude  that  Qwest  is  not  prohibited  from  assessing 
 Mountain  charges  for  such  services. 


 IV.  ORDERING  CLAUSES 
 14.  Accordingly,  IT  IS  ORDERED,  pursuant  to  sections  4(  i),  4(  j),  and  208  of  the 
 Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    154(  i),  154(  j),  208,  and  sections 
 51.703(  b)  and  51.709(  b)  of  the  Commissions  rules,  47  C.  F.  R.    51.703(  b)  and  51.709(  b),  that 
 Mountains  Complaint  IS  DENIED  and  that  this  proceeding  IS  TERMINATED  as  of  the  Release 


 39  Mountain  Brief  at  7-  9. 
 40  Id.  at  8. 
 41  Mountain  Brief  at  8. 
 42  See  Qwest  Brief  at  10-  12. 
 43  See  Mountain  Brief  at  7-  9. 
 44  Qwest  Brief  at  11. 
 45  Id. 
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 Date  of  this  Order. 
 15.  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.    154(  i),  154(  j),  208,  that  Qwests  Motion 
 to  Dismiss  IS  DENIED  as  moot. 


 FEDERAL  COMMUNICATIONS  COMMISSION 


 David  H.  Solomon 
 Chief,  Enforcement  Bureau 
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