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 Federal  Communications  Commission  FCC  02-  220 
 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 

 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  Mountains  complaint  alleging  that  Qwest  Communications  International,  Inc. 
 (  Qwest),  an  incumbent  local  exchange  carrier  (  LEC),  violated  sections  51.703  and  51.709(  b)  of  the  Commissions  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  Bureaus 
 conclusions  in  the  Mountain  Order,  and,  therefore,  we  deny  the  Mountain  Petition. 

 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). 
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 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  Commissions  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 
 Bureaus  decision. 
 3.  Further,  Mountain  argues  that  the  Bureaus  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  Mountains 
 reading  of  the  Texcom  Order  is  incorrect.  The  Commission  in  the  Texcom  Order  stated  that  the 

 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  Mountains  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),  affd  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  Bureaus  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  LECs  network.  Id.  at  5-  6,   

 9-  10. 
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 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,  Mountains  reliance  on  an  incorrect  reading  of  the  Texcom  Order  does  not  justify  overturning  the 
 Bureaus  decision. 
 B.  Qwest  May  Lawfully  Charge  Mountain  for  Wide  Area  Calling. 
 4.  Mountain  claims  that  the  Bureau  erred  in  its  determination  that  Qwest  may  lawfully  charge  Mountain  for  wide  area  calling.  14  The  Bureaus  order  stated  that  the  wide  area 
 calling  arrangement  at  issue  involves  Qwests  provision  of  dedicated  toll  facilities  to  Mountain  that  connect  the  Direct  Inward  Dialing  (  DID)  numbers  that  Mountain  has  obtained  in  each  of 
 Qwests  local  calling  areas  to  Mountains  interconnection  point  in  another  local  calling  area.  15  The  Bureau  found  that  this  enabled  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.  16  Mountain  first  disputes  the  Bureaus  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  Mountains  customers  in  each  of  Qwests  local  calling  areas  to  Mountains  interconnection 
 point  are  dedicated  toll  facilities  because  those  facilities  do  not  carry  toll  traffic.  20  Mountain 
 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.  Mountains  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  Qwests  network  without  Qwests  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. 
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 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  Commissions  rules.  21  Mountain  also  contends  that  the  Bureaus  ruling  is  inconsistent  with  the  Commissions  TSR  Wireless  Order, 
 because  the  network  configuration  discussed  in  the  TSR  Wireless  Order  is  identical  to  Mountains  arrangement  with  Qwest.  22 

 5.  We  are  not  persuaded  by  Mountains  arguments.  As  an  initial  matter,  Mountains  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  LECs  customers  to  the  paging  carriers  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  Mountains  interconnection  arrangement  with  Qwest  are  referred  to  as  such  because  their  sole  function  is  to  route  the  DID  numbers  to  Mountains  point  of 
 interconnection  in  Pueblo.  24  By  establishing  a  point  of  interconnection  in  Pueblo,  obtaining  DID  numbers  that  reside  in  Qwests  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  Mountains  network.  Accordingly,  Mountain  has  obtained  a  wide  area  calling  service  for  which  it  must  compensate 
 Qwest.  Mountains  position  that  the  lack  of  a  written  agreement  between  the  parties  indicates  that  no  wide  area  calling  arrangement  with  Qwest  exists  is  meritless.  26  Mountains  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  Mountains  arrangement  with  Qwest.  28  Contrary  to  Mountains  contentions, 

 21  Id.  at  11-  14,    19-  23. 
 21  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  Corporations  Opposition  to  Mountains  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. 
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 however,  the  Mountain  Order  did  not  alter  the  Commissions  position  in  the  TSR  Wireless  Order  that,  pursuant  to  section  51.701(  b)  of  the  Commissions  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  Mountains  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  Mountains  single  of  point  of  interconnection,  and  instead  permit  Qwest  to  bill  its  own  end  users  for  toll  calls  to 
 Mountains  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  Mountains  network  arrangement  is  not  necessary  for  interconnection,  Qwests  charges  do  not  implicate  the  good  faith  negotiations  obligations  under  section  251(  c)(  1) 
 of  the  Act.  32  Thus,  Qwests  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  Mountains  claim  that  the  Bureaus  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  Qwests  subscribers  and  third  party  carriers  that  originate  traffic  onto  Qwests  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. 

 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. 
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 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 
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