20001220Order No 28601.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE JOINT PETITION OF ROBERT RYDER, DBA RADIO PAGING SERVICE, JOSEPH MCNEAL, DBA PAGEDATA AND INTERPAGE OF IDAHO, FOR A DECLARATORY ORDER AND RECOVERY OF OVERCHARGES FROM U S WEST COMMUNICATIONS, INC.
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CASE NO. USW-T-99-24

ORDER NO. 28601

Currently before the Commission is the Petitioners’ Petition for Reconsideration to which Qwest Corporation (“Qwest”) and the Commission Staff have responded. Hearing was held on this matter and it is now ripe for decision.
PROCEDURAL BACKGROUND
A. The Complaint
On September 24, 1999, Robert Ryder dba Radio Paging Service and Joseph McNeal dba PageData and Interpage of Idaho filed a Joint Petition for Declaratory Order stating two counts for relief. On January 24, 2000, Tel-Car, Inc., an Idaho Corporation filed a Petition to Intervene into this matter pursuant to IDAPA 31.01.01.071-075. The Commission granted this Petition on February 9, 2000. See Order No. 28282. These paging companies collectively shall hereinafter be referred to as Petitioners. Petitioners have purchased the use of facilities from Qwest’s Price List.
In Count I, Petitioners alleged that the federal Telecommunications Act of 1996 (47 U.S.C. §§ 153 et seq.) and Federal Communications Commission (hereinafter “FCC”) orders and rules prohibit Qwest from charging paging providers for certain services and facilities found in its Price List. Specifically, Petitioners alleged that Qwest’s Price List improperly charges them for dedicated transport and channel facilities under Section 20.1.D.4.a(1), dedicated transport under Section 20.1.D.4.b, channel performance under Section 20.1.D.4.c, connectivity under Section 20.1.D.4.d, and dial outpulsing under Section 20.1.D.4.e. U S WEST Price List, Section 20. Facilities for Radio Carriers, pp. 697-706. Accordingly, Petitioners requested the Commission declare these portions of Qwest’s Price List void and order the Company to reimburse them for charges they paid for these items starting from September 1996 through the time each Petitioner entered into a Type I Paging Interconnection Agreement with Qwest. It is not clear for what period of time Tel-Car and Interpage are seeking recovery as neither has ever entered into an interconnection agreement with Qwest.
The Commission ordered the parties (including the Commission Staff) to brief whether it had jurisdiction to decide the issues raised by the Petitioners. Order Nos. 28235 and 28281. The parties all agreed, albeit for different reasons, that the Commission had jurisdiction to decide this Complaint. Oral argument was held on May 24, 2000. On July 5, 2000, the Commission issued Order No. 28427 which dismissed the Complaint in its entirety.
B. The Prior Commission Order
The Commission addressed three arguments in dismissing Count I. First, the Commission ruled that Idaho Code § 62-616 grants it authority to adjudicate claims regarding “whether price and conditions of service are in conformance with filed tariffs or prices[.]” Given the parties admission that the prices charged in this case were in conformity with the rates contained in the Price List, the Commission found there was no violation. Second, the Commission found that Idaho Code § 62-605(5) did not provide a basis for it to invalidate the terms or rates for items contained in Qwest’s Price List because they were not adverse to the public interest. Third, the Commission found there was no independent delegation to the Commission under state law to “enforce” an FCC opinion letter (hereinafter the “Metzger letter”) or its progeny, and Idaho Code § 62-615(1) did not operate to enlarge its authority to directly regulate the pricing elements within the Price List. Consequently, the Commission found that it could not order Qwest to provide the services and facilities to the Petitioners for free. Order No. 28427.
C. The Petition for Reconsideration
On July 20, 2000, Petitioners filed a timely Petition for Reconsideration alleging that the Supremacy Clause of the United States Constitution and FCC orders, rules and interpretations compel the state -- and in this case, the Commission -- to enforce federal law, law which they allege voids portions of Qwest’s Price List. Moreover, Petitioners contend that these services and dedicated facilities on the Price List must be provided to them free of charge. Second, if the Commission exercises jurisdiction over this matter it must act consistently with federal law. Finally, through the enactment of Idaho Code § 62-615(1) the Commission has the authority to enforce federal telecommunications law. Based on these grounds, Petitioners request that the Commission order Qwest to reimburse them for these charges they have incurred under the Price List.
On July 25, 2000, Staff filed its Opposition to Reconsideration, recommending that the Commission require all parties to brief whether the Supremacy Clause obligates this Commission to enforce federal telecommunications law without express authorization from the state legislature.
On July 28, 2000, Qwest filed its Answer which essentially supported the Commission’s final Order No. 28427. However, Qwest believed that it was appropriate for the Commission to grant reconsideration to consider the effect of the FCC’s recent TSR Memorandum Opinion and Order, on its decision. The TSR Order addressed the Metzger letter and specifically the issue whether paging providers are entitled to certain free local services and facilities. Moreover, Qwest requested the opportunity to create a factual record regarding the Petitioners’ current bills and the amount of billing credits, if any, to which they are entitled to as a result of the TSR Order.
In Order No. 28473 issued August 9, 2000, the Commission granted reconsideration and ordered the parties to brief the following issues. First, what is the Commission’s obligation to enforce federal telecommunications law in the absence of an express delegation from the state legislature. Second, the parties were ordered to address the effects of the TSR Order because it potentially implicates this Commission’s ratemaking authority. Finally, Qwest requested authority to create a factual record and to introduce evidence regarding the amount of the accrued charges incurred by the Petitioners during the time period in question. The Commission granted all parties the authority to create a limited factual record. The parties were directed to prefile their direct testimony by September 5, 2000. Order No. 28488.
On August 31, 2000, the Personal Communications Industry Association (hereinafter “PCIA”) filed a motion for leave to brief the issues raised by the Commission in Order No. 28473. On September 5, 2000, Staff filed a motion opposing PCIA’s intervention into this matter and requested that its brief be stricken from the record. On or around this date Petitioners and Qwest prefiled their respective direct testimony. An evidentiary hearing was held September 11, 2000. Although prefiled, the Petitioners’ testimony was not entered into the record. Qwest introduced the testimony of its witness Kathy Malone. The Staff did not offer any testimony on the matter. After the hearing both Qwest and Petitioners filed summation briefs.
FACTUAL BACKGROUND
A. The Idaho Regulatory Scheme
After enactment Idaho’s Telecommunications Act in 1988, Qwest filed an election in 1989 to remove certain services, including the services at issue in this case, from the Commission’s Title 61 regulatory authority. See, Case No. MTB-T-89-1; Order No. 22552. Once removed from Title 61, these services became partially regulated, subject only to the provisions of Title 62, Idaho Code. The Price List at issue in this case is part of Qwest’s “Title 62 Catalog” filed with the Commission in 1993.
Under Title 62, Local Exchange Companies (hereinafter “LECs”) “shall file with the Commission, for information purposes, tariffs or price lists which reflect the availability, price, and terms and conditions for those services.” Idaho Code § 62-606. Petitioners allege that they have purchased interconnection facilities (unbundled network elements) from the Price List since September 1996. PageData and Radio Paging negotiated Interconnection Agreements pursuant to Sections 251 and 252 of the federal Telecommunications Act of 1996 and no longer purchase these network elements under the Price List. PageData’s agreement with Qwest was approved by the Commission on September 10, 1999. Order No. 28139. It has since expired and the record does not reveal whether the parties have entered into a new agreement. Radio Paging’s Interconnection Agreement was approved on May 13, 1999. Order No.  28032. InterPage and Tel-Car have not entered into agreements with Qwest and thus still purchase services from the Price List.
B. The FCC Regulatory Scheme
1. Local Competition Order
In August of 1996, the FCC issued the Local Competition Order which required LECs to establish reciprocal compensation agreements with CMRS providers. Furthermore, the FCC concluded that pursuant to 47 U.S.C. § 251(b)(5) and 47 C.F.R § 51.703(b), a LEC could not charge a CMRS provider or other carrier for terminating LEC-originated traffic.
2. The Opinion Letters
After the Local Competition Order was entered, several paging companies requested that the Common Carrier Bureau “affirm” the FCC’s ruling on this matter. On March 3, 1997, then-Chief of the Common Carrier Bureau, Regina Keeney, issued a letter restating the FCC’s conclusions in the Local Competition Order that LECs were prohibited from charging CMRS providers for LEC-originated traffic.
On December 30, 1997, A. Richard Metzger, Jr., then-Chief of the Common Carrier Bureau issued an opinion letter addressing whether the Local Competition Order permitted a LEC to charge a provider of paging services for the cost of the LEC’s dedicated transmission facilities used to deliver local telecommunications traffic to the paging provider. Metzger’s conclusion was that LECs could not charge the paging provider for these facilities.

3. The TSR Order and this Case
On June 21, 2000, the FCC issued the TSR Order which affirmed the Metzger opinion letter finding that LECs may not impose charges on paging companies for facilities used to deliver LEC-originated traffic. The FCC reasoned that:
Since the [local] traffic must be delivered over facilities, charging [paging]carriers for facilities used to deliver [local] traffic results in those carriers paying for LEC-originated traffic and would be inconsistent with the rules. Moreover, the [Local Competition Order] requires a carrier to pay for dedicated facilities only to the extent it uses those facilities to deliver traffic that it originates. Indeed, the distinction urged by Defendants is nonsensical, because LECs could continue to charge carriers for the delivery of originating traffic by merely re-designating the “traffic” charges as “facilities” charges.

TSR Order citing Local Competition Order, at 16,027-28 (footnote omitted). The FCC also clarified the reach of the TSR Order by finding that it did not require an interconnection agreement in order for the obligations above to apply to LECs.
Qwest now recognizes this authority, but with reservation. In briefing, Qwest stated that it believed the Metzger letter was contrary to the 1996 Act and the FCC’s Local Competition Order. See U S WEST’s Initial Brief Regarding Jurisdiction. Accordingly, on January 29, 1998, the Company requested that the FCC formally review the Metzger letter. See Petitioner’s Exhibit No. 1, Application for Review, CPD 97-24 (1998). Despite seeking formal review in that matter, the Company’s Application explained that it has now implemented a new paging interconnection agreement (post-Metzger agreement) which complies with FCC authority. Application at 11-12. Specifically, the Company represented:
[Qwest] intends as a show of good faith to adjust its tariffs to be responsive to its customers’ needs and the Commission’s expectations. As an interim measure pending final resolution of issues relating to paging interconnection and in an effort to short-circuit endless controversy during the period preceding negotiated agreements with paging providers, [Qwest] plans to offer paging providers a basic interconnection option at no charge to replace their existing agreements with U S WEST or until new ones are reached. In keeping with the Bureau’s classification of a LEC as the sole party responsible for the dedicated facilities ordered by the paging provider for the “originating traffic, U S WEST is conducting network planning to formulate the most efficient and cost-effective ways to provide such interconnection to paging providers.

Application for Review, 97-24, at 11-12 (emphasis added) (footnote omitted).
In pending litigation before the United States Court of Federal Claims, the Company represented that:
First, the FCC provision at issue – 47 C.F.R § 51.703(b)—is undoubtedly definitive. The provision states that “[a] LEC may not assess charges on any other telecommunications carrier for local telecommunications traffic that originates on the LEC’s network.” 47 C.F.R §  51.703(b). . . . Second, section 51.703(b) has had a direct and immediate impact on U S WEST’s day-to-day operations . . [.] And third, immediate compliance with section 51.703(b) was required of U S WEST when the rule became effective in 1996. See Implementation of the Local Competition Provisions in the Telecommunications Act of 1996[.]

Petitioners’ Exhibit No. 2, Plaintiff’s Reply in Support of Its Motion for Summary Judgment on Liability and Opposition to Defendant’s Motion to Dismiss or, in the Alternative, Cross-Motion for Summary Judgment, at pp. 4-5, U S WEST Communications, Inc., v. United States of America, Case No. 99-140C (emphasis in original).
On August 1, 2000, following the FCC’s issuance of the TSR Order, Qwest sent a letter to the FCC stating “Qwest is working quickly to implement both interim and long term changes to comply with this [TSR] order, and has notified our existing paging service provider customers as to how we are proceeding.” Petitioners’ Exhibit No. 3, Letter of Kenneth K. Cartmell to FCC Secretary Magalie Roman Salas at p. 1.
A second letter addressed to paging providers was sent by Vickie Boone, Billing Manager for Qwest Wireless in Salt Lake City, Utah. This second letter states:
While Qwest firmly believes the [TSR] Memorandum Opinion and Order is unlawful and is confident it will be overturned on appeal, we are committed to complying with the FCC’s decision in the meantime. Therefore, we will be eliminating charges for the portion of local interconnection facilities used to deliver traffic that originates on Qwest’s network and terminates on your network.

Petitioners’ Exhibit 2, at p. 2 (undated), attached to Robert Ryder’s prefiled direct testimony.
Finally, on cross-examination Kathryn Malone, Manager for Wholesale Markets, for Qwest testified that “[w]e have been at disagreement with the FCC ruling. However, we are abiding by the FCC’s Order.” Transcp. at p. 68, ll.2-4. Malone also stated that Qwest was in the process of calculating billing credits back to November of 1996 for paging companies that had not entered into an interconnection agreement which complied with the FCC’s interpretation, but which had now entered into a post-Metzger agreement. Id. at ll. 7-9.
COMMISSION DECISION
A. Jurisdiction
Neither the parties nor the Commission can confer jurisdiction on the Commission. Arrow Transp. Co. v. Idaho Pub. Utils. Comm'n, 85 Idaho 307, 313, 379 P.2d 422, 425 (1963); White v. Marty, 97 Idaho 85, 87-88, 540 P.2d 270, 272-73 (1975). The Public Utilities Commission has no authority other than that given to it by the Legislature. It exercises limited jurisdiction and nothing is presumed in favor of its jurisdiction. United States v. Utah Power & Light Co., 98 Idaho 665, 570 P.2d 1353 (1977); Lemhi Tel. Co. v. Mountain States Tel. & Tel. Co., 98 Idaho 692, 571 P.2d 753 (1977); Arrow Transp. Co., 85 Idaho at 307, 379 P.2d at 422. Pursuant to Idaho Code § 62-616, the Legislature conferred jurisdiction upon the Commission to investigate and resolve complaints made by subscribers regarding Title 62 services offered under filed price lists.
The record establishes that the Petitioners are subscribers to Title 62 services. Further, the allegations under Count I arise under Qwest’s Price List for Title 62 services filed in 1993. Therefore, the Commission concludes that it has the requisite authority to adjudicate Count I of the Petitioners’ Complaint.
B. PCIA’s Motion for Leave to File Brief
As stated above, PCIA has requested leave to file a brief regarding the issues on reconsideration in this case. PCIA’s brief is incorporated into Petitioners’ final briefing and thus the two are part and parcel of the same argument. For this reason it will not be struck from the record. However, to the extent PCIA’s motion could be construed as a petition to intervene it is denied as untimely under the Commission rules. IDAPA 31.01.01.071-073.
C. The Petitioners’ Complaint
The Commission has been confronted with difficult issues involving the interplay and conflict between state and federal jurisdictions which govern this case. Here, the Commission has little desire to and believes that it generally should not be the agency to enforce FCC directives, specifically those that appear to be unreasonable. For example, the Commission believes that the FCC’s refusal to recognize obvious facts about how paging providers operate and incur costs is illogical. See Order No. 28427. Petitioners are providing one-way paging services to their customers through interconnection with the Qwest network. Their paging customers only receive calls and have no capability to initiate calls to customers on Qwest’s network. As the Colorado Public Utilities Commission observed:
A paging service exists for one reason only, namely to enable paging customers to be contacted by specific individuals to whom the number has been given. It is, therefore, the provider of paging services . . . who is the cost-causer [sic].

In the Matter of the Petition of Airtouch Paging, Inc., for Arbitration of an Interconnection Agreement with U S WEST Communications, Inc. pursuant to 47 U.S.C. § 252, Decision Regarding Petition for Arbitration, adopted April 23, 1999, pp. 9-10, fn. 7.
The interconnection and transmission of calls from LEC customers to the paging company also requires dedicated two-way switching and dedicated transport – in other words, the use of the LEC’s network elements. In order to interconnect and transport calls to paging customers, facilities must be dedicated to the paging provider’s use. In some instances facilities must actually be constructed. Therefore, clearly the paging provider and its customers cause the LEC to incur the costs associated with the facilities dedicated to the paging interconnection.
Despite this reality the Petitioners are demanding and the FCC has mandated that paging providers be provided with free dedicated facilities. The Commission still believes the FCC’s stance on this matter is contrary to common sense and raises issues of an unconstitutional taking of the LEC’s property. Given the fact that this matter is under judicial review, these issues have not received judicial finality.
Turning to the matter before us on reconsideration, we find pursuant to Idaho Code § 62-616 this Commission has authority to resolve customer complaints, subject to Title 62, about whether the price and conditions of service are in conformance with filed tariffs or price lists. There is no question that the prices for the items at issue in this case match the Price List on file with the Commission. However, as set out above, Qwest has acquiesced to FCC authority prohibiting this pricing, pending the outcome of its appeals with various administrative and judicial bodies. Qwest’s concession is also memorialized in its post-Metzger interconnection agreement which it is now offering paging companies. Accordingly, the Commission finds that there is agreement among the parties that the Petitioners are entitled to a billing credit or reimbursement for the charges they have incurred for the facilities used to deliver local LEC-originated traffic to the Petitioners at least sometime after late 1996. Thus, the Commission finds it appropriate to reinstate Count I and grant the Petitioners relief. Pursuant to Idaho Code § 61-624, the Commission amends Order No. 28427 to conform to this Order on reconsideration. All that remains then is the calculation of the billing credit or amount of reimbursement which is owed to the Petitioners as a result of this incorrect pricing.
1. Reimbursement for overcharges
Petitioners request billing credits or reimbursement for the services and facilities at issue in this case back to July of 1996. According to Idaho Code § 62-616 when resolving subscriber complaints:
[T]he commission may by order, render its decision granting or denying in whole or in part the subscriber’s complaint or providing such other relief as is reasonable based on the evidence presented to the commission at the hearing.

Pursuant to Idaho Code § 61-641 the Commission may order reparation for an overcharge:
When complaint has been made to the commission concerning any rate, fare, toll, rental or charge for any product, or commodity, furnished or service performed by any public utility, and the commission has found, after investigation, that the public utility has charged an excessive or discriminatory amount for such product, commodity or service, the commission may order that the public utility make due reparation to the complainant therefor, with interest from the date of collection: provided, no discrimination will result from such reparation.

Idaho Code § 61-641. Under this authority the Commission may order reimbursement only if it finds that rates are excessive in light of the public’s best interest. Lemhi Telephone Company v. Mountain States Telephone and Telegraph Company, 98 Idaho 692, 699, 571 P.2d 753, 760 (1977). In the present case the Commission believes, despite its feelings about FCC decisions, that it is in the public’s best interest to accept Qwest’s offer and agreement to comply with FCC paging decisions which it recognizes governs this matter, pending appeals. Accordingly, through §§ 61-641 and 62-616, the Commission finds that reimbursement to Petitioners is appropriate with one limitation.
Idaho Code § 61-642 governs the applicable time limit for seeking such a reparation:
If the public utility does not comply with the order for the payment or reparation within the time specified in such order, suit may be instituted in any court of competent jurisdiction to recover the same. All complaints concerning excessive or discriminatory charges shall be filed with the commission within three (3) years from the time the cause of action accrues, and the petition for the enforcement of the order shall be filed in the court within one (1) year from the date of the order of the commission. The remedy in this section provided shall be cumulative and in addition to any other remedy or remedies in this act provided in case of failure of a public utility to obey an order or decision of the commission.

Petitioners seek compensation back to July 1996. However, this cause of action was not filed until September 24, 1999, more than three years after it accrued. Accordingly, the Commission finds that Petitioners can only receive reimbursement or billing credits from Qwest for the facilities which they were improperly charged for back to September 24, 1996, three years from the date they filed their Complaint. Therefore, Tel-Car and InterPage are entitled to reimbursement or billing credits from September 24, 1999 back to September 24, 1996. Radio Paging is entitled to reimbursement or billing credits from September 24, 1996 until May 13, 1996, the date on which its post-Metzger interconnection agreement with Qwest was approved. PageData is entitled to reimbursement or billing credits from September 24, 1996 to September 10, 1999, the date on which its pre-Metzger interconnection agreement with Qwest was approved.

2. Calculation of billing credit or reimbursement amount
In order to determine the appropriate amount of the billing credit or reimbursement each Petitioner is entitled to the Commission will require Qwest and the Petitioners to individually calculate these amounts and provide this information to each other on or before January 9, 2001. After the exchange of these materials, the parties shall meet informally and attempt to resolve any differences on or before January 23, 2001. No later than January 23, 2001 the parties shall advise the Commission by letter of the outcome of the informal negotiation. If an agreement on the amount of billing credits or reimbursement is not reached, the Commission will schedule a formal settlement conference.
O R D E R
IT IS HEREBY ORDERED that PCIA’s request for leave to file a brief regarding the issues on reconsideration, to the extent that it could be construed as a petition to intervene as a party, is denied. PCIA’s brief, though, because it is incorporated into the Petitioners’ final briefing shall remain a part of the record of this case.
IT IS FURTHER ORDERED that the Petition for Reconsideration is granted. Accordingly, Count I of the Complaint is reinstated. Furthermore, the Commission finds that the Petitioners are entitled to relief on Count I of the Complaint.
IT IS FURTHER ORDERED that Tel-Car, Inc. is entitled to a billing credit or reimbursement for services and facilities which should have been provided free of charge according to FCC authority. Accordingly, Tel-Car may recover for the period of time from September 24, 1996 to September 24, 1999.
IT IS FURTHER ORDERED that Interpage is entitled to a billing credit or reimbursement from Qwest for services and facilities which should have been provided free of charge according to FCC authority. Accordingly, Interpage may recover for the period of time from September 24, 1996 to September 24, 1999.
IT IS FURTHER ORDERED that Radio Paging Service is entitled to a billing credit or reimbursement for services and facilities which should have been provided free of charge according to FCC authority. Accordingly, Radio Paging may recover for the period of time from September 24, 1996 to May 13, 1996.
IT IS FURTHER ORDERED that PageData is entitled to a billing credit or reimbursement for services and facilities which should have been provided to it free of charge according to FCC authority. PageData may recover for the period of time from September 24, 1996 to September 10, 1999.
IT IS FURTHER ORDERED that Qwest and the Petitioners shall submit to each other detailed materials evidencing the amount of the billing credit or reimbursement each Petitioner is entitled to on or before January 9, 2001. After receipt of the above materials from each other the parties shall meet on or before January 23, 2001 to attempt to agree upon the amount of the billing credit or reimbursement each Petitioner is entitled to. The parties shall advise the Commission by letter of the outcome of their informal meeting. If all matters are not resolved by January 23, 2001, the Commission shall schedule a formal status conference.
THIS IS A FINAL ORDER ON RECONSIDERATION. Any party aggrieved by this Order or other final or interlocutory Orders previously issued in this Case No. USW-T-99-24 may appeal to the Supreme Court of Idaho pursuant to the Public Utilities Law and the Idaho Appellate Rules. See Idaho Code § 61-627.

DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of December 2000.

DENNIS S. HANSEN, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

PAUL KJELLANDER, COMMISSIONER

ATTEST:

Jean D. Jewell
Commission Secretary

O:uswt9924_dh_jh
On June 30, 2000, U S WEST, Inc. the parent and sole shareholder of U S WEST Communications, Inc., merged with and into Qwest Communications International, Inc. and on July 6, 2000, U S WEST was renamed Qwest Corporation. See Order No. 28466 (August 7, 2000). For purposes of this decision the Company shall hereinafter be referred to as Qwest.

The Petition has been treated as a Complaint because notice was not issued to all affected utilities as required by IDAPA 31.01.01.102. See also, IDAPA 31.01.01.101. Furthermore, the Commission will not address Count II in this Order as it was dismissed previously and the Petitioners have not sought reconsideration of this decision. Order No. 28427 and Petitions for Reconsideration.

Petitioners provide one-way paging services to their customers in Idaho through a Type 1 Interconnection with the Qwest network. Paging customers only receive calls. To contact a paging customer, the call is transported on Qwest’s network, then handed off to the paging carrier for ultimate delivery to the called party. This process requires dedicated two-way switching and dedicated transport which are provided by use of Qwest’s network elements. It is these facilities and services, purchased from Qwest’s Exchange and Network Service Catalog (Title 62 Price List), in effect in 1996, that are at issue in this matter.

To the contrary, the Commission specifically found that it was adverse to the public interest to allow the Petitioner, paging providers to receive these services and facilities free of charge.

In the Matters of TSR Wireless, LLC, et al., v. U S West Communications, Inc., et al, Memorandum Opinion and Order, 2000 WL 796763, 15 FCC Rcd. 11,166 (June 21, 2000).

“PCIA is a wireless communications association dedicated to advancing seamless global communications through its strategic marketing, public policy expertise, events and educational programs.” www.pcia.com.

At this time the Company was named Mountain States Telephone and Telegraph Company dba U S WEST Communications, Inc.
PageData entered into what Qwest calls a “pre-Metzger” interconnection agreement which did not provide free interconnection facilities. U S WEST’s Initial Brief Regarding Jurisdiction at p. 8.

RadioPaging entered into what Qwest calls a “post-Metzger” Type 1 Paging agreement that provided certain free interconnection facilities to RadioPaging within the U S WEST local calling area, and a prorated share of the facility charges for transit traffic. U S WEST’s Initial Brief Regarding Jurisdiction, at pp. 6-7.

In the Matter of Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, First Report and Order, CC Docket No. 96-98, 11 FCC Rcd. 15,499 (August 8, 1996).

The Common Carrier Bureau is a department of the FCC responsible for recommending and implementing regulatory policies on interstate and international common carrier activities.
The FCC did however find that 47 C.F.R § 703(b) did not prohibit LECs from charging, in certain circumstances, for wide area calling or similar services where a terminating carrier agrees to compensate the LEC for toll charges that would otherwise have been paid for by the originating carrier’s customer.
Idaho Code § 62-616 states in pertinent:

The commission shall have the authority to investigate and resolve complaints made by subscribers to telecommunication services which are subject to the provisions of this chapter which concern the quality and availability of local exchange service, or whether price and conditions of service are in conformance with filed tariffs or price lists, deposit requirements for such service or disconnection of such service by telephone corporations subject to the provisions of this chapter. The commission may, by order, render its decision granting or denying in whole or in part the subscriber's complaint or providing such other relief as is reasonable based on the evidence presented to the commission at the hearing.
The paging company is provided with “free” dedicated services in this type of interconnection agreement.

Petitioners are not entitled to recovery of amounts charged for foreign exchange service or wide area calling services, i.e. WATS under the Commission’s decision.

This decision should not be viewed as this Commission’s acquiescence to federal authority. As stated previously this Commission disagrees with the FCC authority in this matter but still must resolve this subscriber complaint in the proper manner, that is to hold Qwest to its commitment. It should be noted though that the authority of the Commission’s decision applies only to the facts and circumstances of the matter at hand.

ORDER NO. 28601 -1-

Office of the Secretary
Service Date
December 20, 2000