20020717Order No 29064.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. 29064
This Order concludes the second part of a case that began in September 1999. This case was initiated when three paging companies (referred to as “the Pagers”) filed a Joint Petition for Declaratory Order against Qwest Corporation’s predecessor (U S WEST Communications). The Pagers alleged that Qwest had improperly charged them for certain telecommunications services and facilities used to deliver telecommunications traffic to the Pagers. The first part of the case was called the “liability phase.” In December 2000, the Commission found that Qwest had inappropriately charged the Pagers.
In this Order, the Commission resolves the underlying issues necessary to calculate the amount of billing credits that Qwest Corporation owes to each of the three Pagers in the second part or “credit phase” of the case. After the parties were unable to reach settlement on the billing credits, the Commission appointed a Hearing Examiner to take evidence and issue a Proposed Order. The Hearing Examiner, John Antonuk, issued his Proposed Order and the Pagers timely filed exceptions. Having reviewed the Proposed Order, the record, and the exceptions, we issue this Order adopting the findings of the Hearing Examiner. As explained in greater detail below, the Pagers are entitled to billing credits, although not in the amounts they had originally requested.
BACKGROUND
A. Part 1: The Liability Phase
In September 1999, PageData and Radio Paging Service filed a “complaint” against Qwest’s predecessor (U S WEST) alleging that Qwest had violated provisions of the federal Telecommunications Act of 1996 and regulations pursuant to the Act. In January 2000, Tel-Car, Inc. petitioned to intervene seeking similar relief. The Commission granted intervention in Order No. 28282 issued February 9, 2000. The three Pagers alleged that Qwest had improperly charged them for certain telecommunication services and facilities used to deliver telephone calls to the Pagers’ points of interconnection.
Although the Commission initially dismissed the complaint, in August 2000 the Commission granted the Pagers reconsideration based upon the Federal Communications Commission’s (FCC) issuance of the TSR Memorandum Opinion and Order (TSR Order). Relying upon the prior Local Competition Order, FCC Rules and two common carrier bureau letters, the FCC affirmed in the TSR Order that as of the effective date of the Local Competition Order (Nov. 1, 1996), a local exchange company (LEC, e.g., Qwest) must cease charging a pager for terminating LEC-originated traffic and must provide that traffic to the pager without charge. TSR Order at ¶¶ 3, 25, 28. LECs may not charge pagers “for facilities used to deliver LEC-originated traffic that originates and terminates within the same MTA, as this constitutes local traffic under [the FCC’s] rules.” Id. at ¶ 32. “MTA” means Major Trading Area which in terms of this case means all traffic that originate in Qwest and non-Qwest exchanges located in the Boise LATA. Id. at ¶¶ 11, 31 citing 47 C.F.R. § 51.701(b)(2); TSR Order, nn. 102 and 104.
In Order No. 28601 issued December 20, 2000, the Commission found that the Pagers were entitled to relief set out in Count I of their complaint. Order No. 28601 at 10. Having found that Qwest inappropriately billed the Pagers for services and facilities, the Commission noted in its Order “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.” Id. Having determined that a “billing credit or reimbursement” was due each Pager, the Commission ordered the parties to meet and attempt to agree upon the amount of the billing credit due each Pager. Order No. 28601 at 13.
On January 2, 2001, the Pagers filed a Petition to Amend several ordering paragraphs of the Commission’s Final Order on Reconsideration No. 28601. On February 5, 2001, the Commission issued Order No. 28628 partially granting and partially denying the Petition to Amend. The Commission again ordered the parties to exchange relevant information and continue their negotiations to settle the amount of billing credit owed each Pager. Order No. 28628 at 9-10. The Orders in the Liability Phase were final Orders and no appeal was taken by either party.
B. Part 2: Determining the Credits Due
On March 20, 2001, the parties advised Staff counsel that they were unable to agree on the exact amounts of credit owed. In Order No. 28683 issued March 29, 2001, the Commission appointed a hearing examiner to “decide the remaining issue in this case.” Order No. 28683 at 1. On July 24-25, 2001, the Hearing Examiner conducted an evidentiary hearing. Post hearing briefs were filed. Additional briefs were filed in October 2001 to address another FCC Order relating to the TSR Order. On November 30, 2001, the Hearing Examiner issued his Proposed Order.
In his Proposed Order, the Hearing Examiner recommended that the Pagers were entitled to billing credits although not in the amount they had claimed. More specifically, the Hearing Examiner recommended that Qwest had offered the better evidence regarding the billing and payment information from November 1996 to September 1999. The Hearing Examiner also found that some of the services and facilities used by the Pagers were used to provide other, non-paging communication services (long-distance, cellular, two-way answering, data, Internet access, and private line services) to their customers. The Examiner determined that “Qwest made a reasonable effort to distinguish facilities used for delivering paging traffic by performing a billing-element-by-billing-element review of facilities and the [account] codes assigned to them.” Proposed Order at 22. Consequently, the Examiner determined that credit was not due for: 1) non-paging services and facilities; 2) “transit traffic” from carriers other than Qwest; and 3) services and facilities provided by Qwest that effectively allowed customers to call the Pagers toll-free. Finally, the Hearing Examiner directed that Qwest make minor changes to its calculation of the billing credits owed to the Pagers. The Proposed Order concluded by noting that the parties were entitled to file exceptions to the Proposed Order within 21 days of its service date, or no later than December 21, 2001.
On December 21, 2001, the Pagers timely filed exceptions to the Proposed Order. On December 24, 2001, the Pagers filed a “Supplement to Petitioners Exceptions.” On January 15, 2002, Qwest submitted its recalculation of the billing credit owed to the Pagers. On January 24, 2002, Qwest filed a Motion requesting permission to file a Reply to the Petitioners exceptions. That request was followed a day later by Qwest submitting various attachments to its “Request for Leave to Reply.” On January 28, 2002, the Pagers filed an objection to Qwest’s request to reply.
On June 24, 2002, the Pagers filed another request to supplement their Exceptions to the Proposed Order. Qwest did not file an answer to this latest request.
C. The TSR Order and Its Progeny
In reviewing the disputed issues in this case, it is helpful to review the holding of the FCC’s TSR Order. TSR provided one-way paging services to its customers in Arizona. No calls were conveyed from TSR’s paging terminals or from its customers to Qwest’s network. TSR Order at ¶ 7. In the TSR Order the FCC stated that the Local Competition Order and its implementing regulations “prohibit LECs from charging for facilities used to deliver LEC-originated traffic, in addition to prohibiting charges for the traffic itself.” TSR Order at ¶ 25. The TSR Order also provided that as of the effective date of the Local Competition Order, a LEC must cease charging pagers for terminating LEC-originated traffic and must provide that traffic to the pager without charge. Id. at ¶¶ 3, 28.
However, the FCC also decided that paging carriers “are required to pay for ‘transit traffic,’ that is, traffic that originates from a carrier other than the interconnecting LEC but nonetheless is carried over the LEC network to the paging carrier’s network.” Id. at n. 70 (emphasis added). In other words, traffic that originates on a non-Qwest network and is transported over the Qwest network to a pager’s network may incur charges. Consequently, Qwest may charge a paging carrier for its facilities used to carry traffic from another LECs network to the paging carrier’s network. Id.; see also Texcom v. Bell Atlantic, Memorandum Opinion and Order, 16 FCC Rcd 21493 at ¶¶ 4-6 (Nov. 28, 2001), reconsid. denied, 2002 WL 459938 (FCC March 27, 2002); Metrocall v. Concord Telephone Company, Memorandum Opinion and Order, 17 FCC Rcd 2252 at ¶ 11 (Feb. 8, 2002). Thus, Qwest may levy charges on pagers for that traffic that originates on other LEC networks (e.g., any of the non-Qwest LECs), competitive LECs (CLECs), long-distance carriers, or mobile wireless carriers located in the southern Boise LATA.
In addition to charging for transit traffic, the TSR Order held that LECs may also charge for LEC services and facilities not necessary for interconnection and the delivery of traffic to the Pagers. For example, the FCC found that Qwest may properly charge for “wide area calling or similar services.” TSR Order at ¶¶ 30-31. The TSR Order states that Qwest must deliver its originating traffic within the LATA to the pager’s network without charge to the pager.
However, nothing prevents U S WEST from charging its end users for toll calls completed over a [toll route] T-1 [facility]. Similarly, Section 51.703(b) does not preclude [the pager] and U S WEST from entering into wide area calling or reverse billing arrangements whereby [the pager] can “buy-down” the cost of such toll calls to make it appear to end users that they have made a local call rather than a toll call [to reach the pager]. Should paging providers and LECs decide to enter into wide area calling or reverse billing arrangements, nothing in the Commission’s rules prohibits a LEC from charging the paging carrier for those services.

TSR Order at ¶ 31 (footnotes omitted). For example, Qwest may charge its customers for long-distance calls from its Magic Valley or eastern Idaho local calling region to a pager located in Boise.
In a subsequent Order construing the TSR Order, the FCC affirmed that LECs are allowed to charge for wide area calling or similar arrangements. This finding was based upon the fact that such 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 Commission’s rules do not require LECs to offer such services at all.” Mountain Communications v. Qwest Communications, Memorandum Opinion and Order, 17 FCC Rcd 2091 at ¶ 11 (Feb. 4, 2002).
In Mountain Communications the pager argued that because its local area is the entire MTA, “Qwest is not permitted to charge Mountain [the pager] for facilities used by Qwest to deliver calls from anywhere within the MTA to Mountain’s interconnection point.” Id. at ¶ 12. Mountain also argued that Qwest cannot charge the pager for facilities used to deliver traffic from Qwest direct inward dialing (DID) numbers that are outside the Qwest-defined local calling area but within the same MTA, again, because those facilities are used to deliver Qwest-originated traffic to the pager. Id. at ¶¶ 12-13. The FCC rejected these arguments. The FCC noted that the paging carrier’s ordering of the Qwest DID services and facilities denoted that the pager “has effectively entered into such [a wide area calling] arrangement with Qwest by requesting dedicated toll facilities to transport calls made to DID numbers provided to [the pager’s] customers, free of charge to Qwest’s customers.” Id. at ¶ 13. Consequently, the FCC determined that Qwest was not prohibited from charging the pager for such services.
D. The Standard of Review
When a hearing examiner conducts a proceeding, the examiner prepares and files recommended findings of fact. “Unless otherwise provided by order or notice, the Commission will issue its decision based upon its independent review of the record and the hearing examiner’s recommended findings of fact.” Rule 258.02, IDAPA 31.01.01.258.02. Thus, the Commission conducts a de novo review of the record and issues its Order.
DISPUTED ISSUES
To ultimately determine the amount of billing credit due each Pager, the Commission has several issues to review and resolve. Several of these issues overlap and/or are sub-issues. The disputed issues are:
1. Should the Commission consider late-filed documents submitted by both parties?

2. What is the appropriate starting date for determining the period when credits are due?

3. Is Qwest entitled to an offset for transit traffic of 24%?

4. Was it appropriate to exclude Qwest charges for non-paging services and facilities?

5. Was it appropriate to remove frame relay charges from the credit due PageData and InterPage?

6. Was it appropriate to remove Qwest charges attributable to “wide area calling arrangements” for facilities in excess of 20 miles?

7. Did Qwest offer the better evidence regarding the billing and payment information used to calculate the credits owed to the Pagers?

A. Late-Filed Documents
The Hearing Examiner’s Proposed Order stated that “Petitioners shall be entitled to file written comments or exceptions to this proposed order within 21 days of its service date.” Proposed Order at 24. The deadline for submitting comments or exceptions was December 21, 2002. The Pagers timely filed 40 pages of exceptions. However, both parties subsequently submitted untimely pleadings. For purposes of this Order, these late-filed pleadings may be divided into two categories: (1) the initial set of late-filed documents; and (2) the Pagers’ June 2002 request to supplement their Exceptions.
1. The Initial Late-Filed Documents. After the 21-day deadline for submitting exceptions had passed, the Pagers submitted a “Supplement to Petitioners’ Exceptions” three days late on December 24, 2001. The Supplement addressed the Proposed Order’s Findings of Fact and Conclusions of Law.
On January 24, 2002, Qwest submitted a request for leave to reply to the Pagers’ Exceptions. Qwest’s request was 17 days late. As set out below, answers to exceptions are due seven days after the exceptions are served. IDAPA 31.01.01.312. In its request, Qwest acknowledged that it “did not file exception to the Hearing Examiner’s Proposed Order.” Qwest Request at 1. Nevertheless, Qwest “believes that it should provide the Commission with a Reply to Petitioners’ Exceptions. Id. at 2. In its comments, Qwest responded to the Petitioners’ Exceptions. The following day, Qwest resubmitted its Post-Hearing Brief.
The Pagers then filed an Objection to Qwest’s request to file reply comments. The Pagers argued that Qwest’s comments are untimely under the Commission’s Procedural Rule 312. Rule 312 provide in pertinent part that
Any party may file exceptions and briefs to a proposed order within twenty-one (21) days from its date of service.… Any party may file and serve answers and accompanying briefs to the exceptions within seven (7) days after service of the exceptions.

Rule 312, IDAPA 31.01.01.312.
2. The June 2002 Pleadings. On June 24, 2002, the Pagers again requested permission to supplement their Exceptions by alleging that the Hearing Examiner committed error in failing to compel Qwest to provide certain agreements to the Pagers. June 2002 Supplemental Request at 5. The Pagers argument is based upon “so-called” secret interconnection agreements between Qwest and other telecommunication carriers that have recently been discovered. The Pagers insist that these documents “are pertinent to this proceeding.” Id. at 1. A brief review of the federal Telecommunications Act and its Section 252(e)(1) are helpful in reviewing this argument.
To promote competition in the local telephone exchange market, the federal Telecommunications Act requires that LECs (such as Qwest) “interconnect” with competitors and generally make available their networks for use by competitors at reasonable terms and conditions. 47 U.S.C. § 251(c)(2). The federal Act envisions LECs and competitors entering into “interconnection agreements” that contain the terms and conditions for interconnection. These interconnection agreements could either be voluntarily negotiated or compulsorily arbitrated. 47 U.S.C. § 252(a) and (b). “Any interconnection agreement adopted by negotiation or arbitration shall be submitted for approval to the State commission.” 47 U.S.C. § 252(e)(1). Upon approval by the State commission, any telecommunications carrier can then “pick and choose” and incorporate in its own interconnection agreement any term or condition contained in any other interconnection agreement. 47 U.S.C. § 252(i).
In their request, the Pagers insist that they have recently learned of the existence of alleged interconnection agreements between Qwest and other carriers that were not submitted to this Commission for review. Several state commissions and the FCC have initiated proceedings to determine whether these agreements should have been publicly disclosed and submitted to the appropriate State commission for review. On April 23, 2002, Qwest filed a petition for declaratory ruling with the FCC whether these “business-to-business” contractual arrangements (as characterized by Qwest) should have been filed with and approved by the appropriate public utilities commission. The Pagers maintain that Qwest entered into these “so-called” secret agreements between February – April 2000. Supplemental Request at 3. The Pagers insist that the regulatory commissions of Iowa, Minnesota and New Mexico have all declared these agreements to be “interconnection” agreements or amendments to interconnection agreements. Id. at 2.
The Pagers assert that the Hearing Examiner should have compelled Qwest to produce these interconnection agreements. The Pagers maintain that there are several provisions of these agreements which are pertinent to this proceeding. More specifically, they allege that the McLeod Agreement provides for cash payments by Qwest for overcharges (rather than simply billing credits and reimbursements). Supplemental Request at 8. Second, they allege that the Covad Communications interconnection agreement provides that Qwest must provision (i.e., provide) requested facilities in 48-hours. Id. If PageData would have been offered a similar provision, then Qwest would have had to provision the requested T-1 network facilities (see supra Section E. below) within 48-hours. Finally, the Pagers maintain that these withheld agreements might also reveal whether Qwest has agreed to more favorable credit or reimbursement terms with other telecommunication carriers. Id. at 8. Consequently, the Pagers ask that the Commission require Qwest to produce copies of all settlement and interconnection agreements and that the Pagers “should be compensated at the best rate available under any of those agreements.” Id. at 9. The Pagers suggest that the Commission
enter its ruling based upon the evidence presently before it, that the Commission require Qwest to produce all of said agreements, and that a subsequent ruling for any additionally compensation dictated by the terms of any settlement agreement be available [the Pagers] if those agreements indicate a more favorable rate.

Id. at 9. As previously mentioned, Qwest did not file an answer to the Pagers’ request to supplement their Exceptions.
Commission Findings: The Commission finds that it is within our discretion to rule on the timeliness of pleadings. Having reviewed the Examiner’s Proposed Order and those pleadings filed after that time, we decline to accept the late-filed pleadings in this case. Under Rule 312 and the terms of the Proposed Order, the Pagers’ Supplement to their Exceptions was late. IDAPA 31.01.01.312. Qwest’s answer to the initial Exceptions is also untimely. However, Qwest’s Post-Hearing Reply Brief is already a part of the record and thus is not untimely.
In addition to the fact that the Pagers’ June 2002 request to supplement their Exceptions was not timely filed, there are several other reasons to deny this latest request. First, the Pagers had ample opportunity to take exception to the Hearing Examiner’s failure to compel Qwest to produce copies of negotiated agreements that it has reached with other companies. The Pagers did not take exception to this ruling of the Hearing Examiner until recently when the alleged interconnection agreements were publicly disclosed. In other words, the Pagers waited more than six months before seeking an exception to this ruling. Second, assuming that these alleged interconnection agreements are in fact interconnection agreements and should have been publicly disclosed, the Pagers ability to “pick and choose” is not pertinent to this proceeding. More specifically, this case pertains to the calculation of the credits owed to the Pagers by Qwest before the time they entered into interconnection agreements with Qwest. Order No. 28426 at 1. In other words, this case deals with Qwest’s conduct before the parties entered into interconnection agreements with Qwest. Id. at 3. The ability to pick and choose only pertains to interconnection agreements. Indeed, Radio Paging and PageData interconnection agreements with Qwest predate these alleged secret agreements. Third, the Pagers also acknowledge that the alleged interconnection agreements were executed beyond the period when credit is due. Pagers’ Request to Supplement at 3, 7.
Fourth, the Commission has already rejected the Pagers request to require Qwest to provide them with cash reimbursements rather than billing credits. In Order No. 28626, the Commission declined the Pagers’ request to amend its final prior Order to require Qwest to provide the Pagers with cash reimbursements rather than billing credits. Order No. 28626 at 2. Having previously declined to require cash reimbursements in Order No. 28626, the Pagers could have sought judicial review of that issue from the Idaho Supreme Court. The Pagers did not appeal that decision and the Commission declines to revisit the issue now.
For the reasons set out above, we believe that it is inappropriate to allow the Pagers to supplement their Exceptions. The recent disclosure of the alleged interconnection agreements and the terms that may be contained in those agreements are not applicable to this case, i.e., Qwest’s conduct prior to entering into interconnection agreements.
B. The Starting Date for Determining the Credits
In the Final Order on Reconsideration No. 28601, the Commission found that the Pagers may only receive reimbursements or billing credits from Qwest for a period of three years before the date they filed their complaint. Order No. 28601 at 11, citing Idaho Code § 61-642. Idaho Code § 61-642 provides that all complaints concerning excessive charges “shall be filed with the Commission within three (3) years from the time the cause of action accrues….” The Commission determined that the period of recovery should start three years before the date of the complaint, or September 24, 1996. Id.
In the Proposed Order, the Hearing Examiner recommended that the Pagers’ recovery period began not on September 24, 1996 but on November 1, 1996. The Hearing Examiner noted that November 1, 1996 is the effective date of the FCC’s Local Competition Order. Proposed Order at 3. In the FCC’s TSR Order, relied upon by all parties and the Commission in this case, the FCC stated that as of “the effective date of [the Local Competition Order], a LEC must cease charging a [pager] for terminating LEC-originated traffic and must provide the traffic to the [pager] without charge.” TSR Order at ¶¶ 3, 28; Metrocall v. Concord Telephone, 17 FCC Rcd 2252 at ¶ 7 (“any LEC efforts to continue charging [pagers] or other carriers for delivery of such traffic prohibited by the Local Competition Order and section 51.703(b) would be unjust and unreasonable and violate the Commission’s rules, regardless of whether the charges were contained in a federal or state tariff.”) (Internal quotation marks removed).
In the Pagers’ Exceptions, they argued that the beginning of the refund period should begin on September 24, 1996. Exceptions at 28. The Pagers also maintained that the federal Telecommunications Act of 1996 “set the rules of the game as of its enactment as Public Law 104-104 on February 8, 1996, well before the reimbursement date of September 24, 1996 selected by the IPUC.” Id. The Pagers further asserted that it was the Telecom Act that precluded LECs
from charging paging providers for facilities used to deliver their traffic and for the traffic itself. 47 U.S.C. §§ 251 and 259.… Therefore, the rules of the game were set by Congress when the Act was passed. The Local Competition Order merely implemented the provisions of the Act, spelled out in more detail how it was to be applied, and gave it some additional substance. Thus, the effective date of the Local Competition Order should not be utilized as the starting point. Rather, the starting point should be the effective date of the Act, which Congress obviously intended would set the new rules of the game for the telecommunications industry.”

Exceptions at 28-29 (emphasis added).
Commission Findings: Conceivably, the Commission has three starting dates to begin the period for billing credits. In their Exceptions, the Pagers assert that the starting date is either the date of enactment for the Telecommunications Act, February 8, 1996, or the date set out in the Commission’s previous Order, September 24, 1996. The Examiner proposed that the start date be November 1, 1996, the date of the Local Competition Order. To resolve this issue we must first examine the Pagers’ argument that the start date should be the date the federal Telecommunications Act was enacted.
As set out above, the Pagers argue that Sections 251 and 259 preclude LECs from charging pagers for the delivery of traffic. However, our review of Section 251 (Interconnection Duties of Local Exchange Carriers) and Section 259 (Infrastructure Sharing) does not reveal specific language that prohibits LECs from charging paging providers for facilities and services. The Legislative History found in the “Statement of the Committee of the Conference” likewise does not specifically address this issue. The reciprocal compensation duty of Section 251(b)(5) merely states that Qwest has a “duty to establish reciprocal compensation arrangements for the transport and termination of telecommunications.” 47 U.S.C. § 251(b)(5). The Act does not prescribe the exact arrangements. Section 251(c) also provides that Qwest has a duty to interconnect with other carriers at rates and conditions that are just and reasonable, and in accordance with the requirements of Sections 251 and 252. 47 U.S.C. § 251(c)(2).
There are provisions within Sections 251 and 259 that discuss the FCC’s responsibility to promulgate regulations necessary to implement the requirements of the federal Telecom Act. In particular, Section 251(d) provides that within six months after the date of enactment of the Telecom Act, the FCC shall complete all actions necessary to establish regulation to implement the requirements of this section. 47 U.S.C. § 251(d)(1). Likewise, Section 259(a) provides that the FCC shall promulgate infrastructure sharing regulation within one year of enactment of the federal Act. 47 U.S.C. § 259(a).
In compliance with these sections, the FCC issued its Local Competition Order on November 1, 1996. In that Order the FCC stated: “As of the effective date of [the Local Competition Order], a LEC must cease charging a CMRS provider or other carrier for terminating LEC-originated traffic and must provide that traffic to the CMRS provider or other carrier without charge.” TSR Order at ¶ 28, citing Local Competition Order, 11 FCC Rcd at 16016. It was the Local Competition Order that established the rule that LECs cannot charge paging carriers for the delivery of one-way traffic to the pagers. The FCC did not make the prohibition retroactive to the date of the Act but explicitly prohibited LECs from charging pagers for delivered traffic as of November 1, 1996. Thus, the FCC has not sought to enforce its implementing regulations prior to their promulgation. Consequently, for these reasons we reject the Pagers’ argument regarding the February 8 date. We must now determine the appropriate starting date.
As noted above, the FCC has affirmed the use of the November 1 date. One of the pager parties involved in the TSR Order was Metrocall. TSR Order at ¶ 11. The FCC recently issued its “damage” Order quantifying the credit, if any, owed to Metrocall. Although Metrocall and Qwest settled their dispute, Metrocall continued its action against the other defendants. In calculating the credits (i.e., compensatory damages) owed by the other defendants, Metrocall calculated its damages since November 1996. See Metrocall v. Southwestern Bell Telephone and Pacific Bell Telephone Company, 16 FCC Rcd 18123 at ¶ 4 (Oct. 2, 2001)(emphasis added). The FCC accepted the November starting date. Based upon the effective date of the Local Competition Order and FCC precedent, we find that the appropriate starting date for calculating credits is November 1, 1996.
We also recognize that in the Pagers’ Petition for a Declaratory Order filed in September 1999, they allege that the federal Telecom Act and FCC regulations (specifically 47 C.F.R. § 51.701) prohibits Qwest from charging them for the delivery of traffic that originates on Qwest’s network. See Order No. 28427. As noted in that Order, the Pagers “do not allege that U S WEST failed to charge the rates contained in the Price List on file with the Commission.” Order No. 28427 at 1 (emphasis in original). Arguably, if the federal obligation not to charge paging companies arose on November 1, 1996 and the Pagers do not allege that Qwest failed to charge the appropriate Title 62 rates before that time, then the Pagers are not entitled to any reimbursement prior to November 1.
In summary, we adopt the findings of the Hearing Examiner and conclude that the starting date for calculating the billing credits due the Pagers is November 1, 1996. Pursuant to Idaho Code § 61-624 we amend our prior Order No. 28601 to reflect the appropriate starting date of November 1, 1996. Both parties were aware that the starting date was an issue in this phase of the case and the issue was well litigated. The Pagers had sufficient notice that the start date was at issue.
C. Transit Traffic
In the Proposed Order, the Hearing Examiner found that 24% of the traffic that Qwest delivers to the Pagers was properly classified as “transit traffic.” Proposed Order at 14. Transit traffic is defined as calls that transit Qwest’s network in route to the pager but originate from another carrier, e.g., non-Qwest LECs, toll carriers, CLECs, or cellular carriers. The Hearing Examiner found that Qwest was entitled to compensation for their transit traffic and that Qwest presented substantial evidence to support its transit traffic calculation. Id. at 14. Consequently, the Examiner recommended that the Commission adjust or offset the credits due the Pagers by 24%.
Although the Pagers now acknowledge that “Qwest is entitled to retain that portion of the overcharges representing transit traffic,” they contend that the traffic factor of 24% is exaggerated. Exceptions at 7. The Pagers present four primary arguments regarding the transit figure. First, they argue that Qwest had an affirmative duty to “raise the transit traffic issue” in its answer. Id. at 9. Second, the Pagers claim that the Examiner misconstrued “what the FCC said about proving a transit factor in the Metrocall case.” Id. at 14. Third, the Pagers contend that Qwest is already compensated for transit traffic by other mechanisms. Finally, the Pagers contend that the record does not support adoption of Qwest’s 24% figure and argue that the Commission should adopt their transit figure of 3% - 8%, or 5.5%. Id. at 7, 30. These arguments are examined in greater detail below.
Affirmative Duty to Raise the Transit Issue in Qwest’s Answer? The Pagers first maintain that the issue of transit traffic is “essentially the same as a set-off” and Qwest has an affirmative duty to prove the set-off. An affirmative defense must be proven by the party asserting it. Id. at 9. However, this specific argument was rejected by the FCC in the Metrocall Order. In deciding the issue of transit traffic, the FCC rejected a pager’s claim that the local exchange company “had to raise the issue of Metrocall’s liability for transiting traffic charges as a counterclaim to those charges to be considered here.” Metrocall Order at ¶ 9 (16 FCC Rcd 18123). The FCC stated that it was merely trying to determine the refund owed to the pager considering the amounts the pager paid to the LEC and “the charges lawfully applicable to those accounts.” Id.
Commission Findings: Returning to the procedural facts of this case, this proceeding was initiated when the Pagers filed a Petition for Declaratory Order. When we initiated the inquiry into this matter, the Commission was primarily concerned about jurisdiction. Thus, Qwest did not file an “answer” but the parties submitted pleadings on the issue of the Commission’s jurisdiction. Order No. 28427 at 1. In addition, the Pagers did not allege that Qwest failed to charge the rates contained in its Title 62 price lists on file with the Commission. Id
Given the facts of this case, we find that Qwest should not be procedurally barred from arguing that it is entitled to compensation or a set off for the transit traffic. This case was initially filed as a declaratory judgment action and the initial proceedings were preliminarily concerned with the issue of this Commission’s jurisdiction. Moreover, Qwest and the Pagers have thoroughly litigated this issue before the Examiner. We find it would be unreasonable to procedurally bar Qwest from arguing this issue. The Pagers have been afforded an adequate opportunity to refute this issue. We also note that the FCC has rejected a similar argument in the Metrocall Order. For these reasons, we dismiss the Pagers’ argument that the issue of transit traffic should be procedurally barred.
2. Did the Hearing Examiner Misconstrue the Metrocall Order? The Pagers complain that the Hearing Examiner misconstrued the FCC’s Metrocall Order as it pertained to the FCC’s adoption of a transit traffic figure proposed by the LEC in that case. The Pagers correctly note that the FCC accepted the transit figure offered in that case by Pac Bell which was 26%. Metrocall Order, 16 FCC Rcd 18123 at ¶ 11. In Metrocall the FCC noted that “[s]ome percentage of the interconnection-related charges imposed by the SBC defendants on Metrocall constitutes such [transit] traffic, and they are entitled to charge for it.” Id. at ¶ 9 (emphasis added). Because Metrocall failed to offer any evidence or “any alternative” in that case, the FCC used “for purposes of this proceeding only, the 26 percent transiting factor supplied by Pac Bell, which is based on a 1990 interconnection agreement between the LEC and Metrocall.” Id. at ¶ 11. Thus, the Pagers argue that this case is distinguishable from the Metrocall case because here the Pagers did offer evidence of the appropriate transit figure.
Commission Findings: We agree with the Pagers that the case before us is distinguishable because here the Pagers did offer contrary evidence. However, this finding is not by itself dispositive of the transit traffic issue.
3. Is Qwest Already Compensated for Transit Traffic by Other Carriers? The Pagers next raise another argument relating to the appropriateness of Qwest charging for transit traffic. At the hearing the Pagers argued that Qwest is already compensated for other carriers’ transit traffic via reciprocal compensation and access charges mechanisms. In essence, the Pagers argue that allowing Qwest to charge the paging carriers for transit traffic results in a double recovery to Qwest.
Commission Findings: The FCC rejected this argument in its recent Texcom Order. In the Texcom Order, the FCC dismissed a pager’s argument that a carrier of transit traffic is already compensated for such traffic via reciprocal compensation and access mechanisms. In rejecting this argument, the FCC specifically noted that the transit carrier (neither the originating carrier nor the terminating carrier) is not compensated. The FCC stated that its “reciprocal compensation rules do not provide for such compensation to a transiting carrier.” Texcom Order on Reconsideration at ¶ 4, 2002 WL 459938 (FCC March 27, 2002). The FCC also noted that the pager in the Texcom case presented no evidence that the transit LEC actually recovers the cost of facilities used in transmitting traffic through reciprocal compensation. Id. at ¶ 4.
The FCC has also rejected pagers arguments regarding double recovery. First in the Texcom Order and again in the Mountain Communications Order, the FCC rejected the pagers’ double recovery arguments. In the initial Texcom Order, the FCC noted that the pager presented no evidence indicating that the LEC’s access charges do in fact recover the cost of intermediate transport to the pager. Texcom Order at ¶ 12, 16 FCC Rcd 21493 (2001). The FCC also rejected the double recovery argument with respect to reciprocal compensation. Id. at ¶ 13; Mountain Communications Order at ¶¶ 9-10.
Although several of the Pagers’ witnesses testified that Qwest is compensated by the originating carrier for transit traffic, we are not persuaded by this testimony. As in the cases before the FCC, the Pagers here have offered no evidence that Qwest actually recovers the cost of the facilities used in transmitting traffic through reciprocal compensation or access charges. As the FCC held, we find that a transit traffic carrier is neither an originating nor terminating carrier and the FCC’s reciprocal compensation rules do not provide compensation for transiting traffic. Texcom Order at ¶ 6, 16 FCC Rcd 21493 (2001); on Reconsideration at ¶¶ 3-5. For these reasons we reject these arguments. We next turn to the sufficiency of the evidence.
4. Does the Record Support Qwest’s 24% Estimate for Transit Traffic? Qwest’s paging witness was Sheryl Fraser, a product manager responsible for providing paging interconnection services. Tr. at 301. She testified that Qwest used a 1998 transit study based upon cellular telephone traffic to estimate the paging transit traffic. Tr. at 313-16. She explained that in 1998, only one pager in Qwest’s 14-state territory was equipped with SS7 technology. SS7 signaling technology is the only way that Qwest has to measure transit traffic. Tr. at 312, 387-88. Thus, there is not a sufficient amount of paging data to calculate transit traffic. Consequently, Qwest, by analogy, utilized the transit traffic data for cellular telephones and applied it to paging transit traffic.
On cross-examination, she could not recall whether the 24% transit factor for Idaho was based on a specific Idaho study or was based on a composite study from other Qwest states. Tr. at 406, 576. She did mention that Qwest had done a later transit traffic study on cellular users between December 1999 and July 2000. Tr. at 316. This subsequent study, which was Idaho-specific, shows that the cellular transit traffic at a figure of 35%. Tr. at 313, 576-77; Qwest Exh. 205.
The Pagers argue that the record does not support this 24% figure. They assert that a more appropriate factor was between 3% and 8%. Exceptions at 7. Mr. Ryder of Radio Paging defined transit traffic as “calls originated outside of the LATA” and he estimated that his transit traffic would range between 3% and 5%. Tr. at 107, 112, 123. Mr. McNeal of PageData explained it in terms of “spent or unspent traffic” which is paid or non-paid traffic sent to Qwest’s network. Tr. at 173-74. He said that “there is very little traffic that hits U S WEST’s network that they’re not paid for,” i.e., 800 or 900 numbers. He estimated that it would be less than a hundredth of a percent. Tr. at 174.
In rebuttal, the Pagers presented the testimony of Arden Casper, owner of Tel-Car, who testified that a more appropriate transit traffic figure would be between 5% and 8%. Tr. at 553. He testified that he monitored traffic and conducted a number of surveys from January 2000 to July 2001. Tr. at 554. On cross-examination, he acknowledged that he did not retain any records from these surveys and that his data was obtained over 3 days (8:00 a.m. – 5:00 p.m.) during the last 18-month period. Tr. at 556-57.
The Pagers’ consultant, Victor Jackson, testified the transit traffic would be any traffic that is not originated on Qwest’s system. Tr. at 242. He observed that the 24% figure was not based on paging traffic. Tr. at 243. He acknowledged that “there is no way for those carriers [in this case] to identify . . . where the call they’re receiving originates from and so they would have no knowledge, no way to determine other than some what I’ll call good guesses as to where their call traffic actually came from.” Id. However, when questioned by the Hearing Examiner, he admitted that 24% “is within the realm of possibility.” Tr. at 294, 295.
Commission Findings: We begin by recognizing that there is not a specific study for paging transit traffic (other than the one study from a single carrier). Our review of this issue is made more difficult by the shifting positions of the Pagers. Pursuant to our Notice of Hearing issued June 4, 2001, the Petitioners were required to file a summary of their testimony and exhibits. The Pagers’ summary states
Mr. Ryder [owner of Radio Paging Service] will testify that the entire amount billed should be refunded, as there should be no transit charge. However, he will testify that he is willing to accept a transiting factor of 15%, applied against the telric rate. Qwest is offering agreements to paging companies currently at 24% of telric. Thus, telric should be the appropriate base rather than catalog or tariff [rates]. Mr. Ryder will testify that Qwest has submitted not having performed a study with regard to transit traffic in Idaho. He will testify that he reports a safe harbor of 15% to the FCC and, while this is high based upon his experience, he is willing to except it in the interest of compromise.

Pre-Hearing Summary Pagers’ Testimony at 2 (emphasis added). The summary of Mr. McNeal’s testimony (owner of PageData) is similar. The summary states that “Rather than a 76% credit (based on Qwest’s position) or an 85% credit (which the [Pagers] would accept), these charges should be refunded in total.” Id. at 3. Thus, in the summary of their testimonies presented to the Hearing Examiner, at least two pagers indicate that they would accept a 15% transiting factor (in Mr. McNeal’s case the reciprocal of 85%).
We discount the Pagers’ testimony for several reasons. First, two of the paging witnesses did not correctly define “transit traffic.” Mr. Ryder defined it as calls originating outside the LATA, which is too narrow a definition. In addition, Mr. McNeal defined it as “spent and unspent” traffic and estimated that it would be less than a hundredth of one percent. In the Metrocall Order, the FCC specifically noted that some percentage of the traffic constituted transit traffic. Id. at ¶ 9. In addition as discussed above, we find transit traffic is not subject to reciprocal compensation.
Second, as noted above, the Pagers offered inconsistent testimony. Although at least two of the pager witnesses acknowledge that they would accept a transit traffic figure of 15%, they also argued that the transit figure should be between 3% and 8%, or that there was no transit traffic. Even the Pagers’ expert acknowledged that the 24% figure was “within the realm of possibility.” Tr. at 294, 295. In addition, the one Pager that testified he had conducted a brief study offered no documentary evidence to support his transit traffic testimony. Indeed, we question whether sampling for three days over 18 months is sufficient to support his contention.
Qwest sought to use its cellular traffic figure and apply it to paging traffic. As we have determined above, the credit period in question starts November 1, 1996 and goes through 1999. Qwest’s 1998 cellular study showed the transit traffic figure of 24.4% and the 1999-2002 study showed a cellular transit traffic figure of 35%.
Based upon our review, we adopt the Examiner’s recommended findings that it is appropriate in this case that 24% of traffic delivered to the Pagers constitutes transiting traffic. The Commission finds that use of a cellular transit study to support paging traffic is sufficient in this instance. As set out above, the Pagers were willing to accept a transit traffic figure of 15%. Qwest’s cellular transit study was conducted in 1998. Qwest created its three local calling areas in 1997 and they are generally surrounded by independent LECs. Most of these independent LECs have configured their networks to allow toll-free calling into the large Qwest local calling areas. The 24% transit factor is also below the December 1999-July 2000 cellular transit figure of 35%. Taking these facts together, we conclude that the transit traffic figure of 24% is reasonable in this instance.
D. Excluded Facilities
In the Proposed Order, the Hearing Examiner found that the Pagers are entitled to receive credits for Qwest charges made in connection with facilities and services necessary to transmit one-way traffic to the Pagers. Proposed Order at 3, ¶ 2. However, the Hearing Examiner found that it was reasonable and appropriate to exclude from the calculation of the credits those charges paid by the Pagers for services and facilities for non-paging activities including: two-way long distance, cellular, Internet access, etc. The Hearing Examiner found that the Pagers failed “to provide substantial evidence to show that all charges for which they sought reimbursement were for dedicated transport and channel facilities” necessary to receive paging traffic. Id. The Examiner determined that Qwest’s evidence adequately demonstrates that: (1) Qwest did charge pagers for facilities that were utilized solely for one-way paging; and (2) did charge for other telecommunication services. The Examiner concluded that Qwest correctly eliminated from the credit calculations charges for non-paging services and facilities. Id. at 3-4, 11-12.
In determining total amount credit due to the Pagers, Qwest first excluded non-paging services. Those types of services included mobile telecommunications, dedicated toll facilities, FX services, long-distance services, 800 services, frame relay, POTS for office purposes. Tr. at 452-53, 460-61, 465, 467, 469, 499-501; Exh. Nos. 201, 202, 203.
The Hearing Examiner determined that the Pagers made no effort to show that the non-paging billing elements detailed in Qwest’s Exhibit Nos. 201, 202, and 203 were incorrectly assigned to non-paging services. He concluded that Qwest made a credible and essentially unrebutted effort to determine the charges associated with paging traffic and those services not associated with paging traffic. Proposed Order at 12.
The Pagers have alleged that the Hearing Examiner recommendations are in error. They first insist that
Qwest is responsible for the delivery of all call traffic to Petitioners, as [paging] carriers. Since the call traffic originates on the Qwest network and the Petitioners have no control or knowledge of, the types or uses of call traffic until it is delivered to the interconnection point between the networks, the hearing examiner’s determination is both illogical and not in conformance with the directives of the Idaho Commission.

Exceptions at 15 (emphasis added). The Pagers next maintain that their “only obligation in this determination is to cite pertinent FCC rules, which they have done in the record and through testimony, that apply to the Qwest charges.” Id. In essence, the Pagers infer that it is Qwest’s responsibility to separate the paging versus non-paging telecommunication services and that they have no responsibility or burden to assist in this endeavor.
Commission Findings: We find that the Pagers’ arguments are misplaced for several reasons. Quoting from the Local Competition Order, the Pagers first argue that they should not be required to pay for charges for traffic that originates on another carriers’ network. Relying on this statement, the Pagers insist that the calling “traffic originates on the Qwest network” and configuration of the Pagers’ “network has no bearing whatsoever on Qwest’s responsibilities to deliver all sent-paid call traffic to the point of interconnection without charge.” Exceptions at 15-16 (emphasis original). However, as noted above, the Pagers have misapplied pertinent FCC rulings.
As the FCC recognizes, Qwest and other LECs may carry transit traffic, i.e., traffic that does not originate on their networks. In particular, in denying Texcom’s petition for reconsideration, the FCC recognized that LECs “may charge [pagers] for the cost of the portion of these facilities for transiting traffic, and [the pagers] may seek reimbursement of these costs from originating carriers through reciprocal compensation.” Texcom, 2000 WL 459938 at ¶ 4 (FCC March 27, 2002) (emphasis added). Although Qwest has the responsibility of delivering traffic to the pagers’ points of interconnection, that is not to be construed to mean in every instance that such traffic must be delivered without charge.
Second, all of the Pagers acknowledged that they provide other telecommunication services than simply one-way paging. Mr. Ryder of Radio Paging operates in southern Idaho and primarily in an area from Weiser to Burley. Tr. at 99-100, 123. He acknowledged that he stopped paying his phone bill to Qwest that included a commercial business line “along with other several business lines that we have not been paying on.” Tr. at 120-21. Tel-Car’s witness, Mr. Casper, said that his company provides one-way paging, two-way answering service, and cellular services. Tr. at 131. He testified that some of his circuits are utilized to provide paging and non-paging services. Tr. at 147.
Mr. McNeal, owner of PageData and InterPage, testified that he provides one-way paging, long-distance services, signal traffic, e-mails, data, Internet traffic, two-way mobile service, private line service and plain old telephone services (POTS). Tr. at 148, 199, 352. One line of questioning is particularly revealing in this regard. Mr. McNeal was asked what kind of traffic does PageData carry. He answered:
A. We carry telecommunications traffic. I mean we carry paging traffic; we carry signal traffic, e-mails, data.

Q. Internet traffic?

A. We carry Internet traffic.

Q. Does all that traffic go over the same facilities that you’re seeking to get at no charge?

A. All that traffic goes over that facility that – that’s available to us at no charge.

Tr. at 198-99. It is unreasonable for the Pagers to receive credits for their use of non-paging services and facilities. Moreover, we find that the TSR Order does not compel LECs to provide non-paging services and facilities to pagers offering a host of telecommunication services to the public.
Third, the FCC has also recognized that LECs may charge for “wide area calling arrangements.” Although “a LEC may not charge [pager] providers for the delivery of LEC-originated traffic that originates and terminates within the same [MTA], . . . however 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.” Mountain Communications, 17 FCC Rcd 2091 at ¶ 11. The FCC explicitly recognizes the possibility that a paging carrier “might want to avoid having calls to its customers pay toll charges.” Id. As discussed below in this Order, at least two Pagers did configure their networks to use wide area calling arrangements. These Pagers configured their networks so that it appears to Qwest’s end users that they are making a local call rather than a toll call to the pager. In fact, the FCC recognized that its “rules do not require LECs to offer such services at all.” Id.
Finally, the Pagers maintain that their only obligation is to “cite pertinent FCC rules as the rationale that they are entitled to a full credit of all charges.” Exceptions at 17. We find this argument unpersuasive. Once Qwest has indicated there are non-paging services included on the Pagers’ bills and that the Pagers have obtained Qwest facilities and services that allows for wide area calling arrangement, it is incumbent upon the Pagers to refute this evidence. The Hearing Examiner found that the Pagers
presented scant evidence to support their claim that all their bills from Qwest were for interconnection for the purpose of receiving one-way paging traffic from Qwest. Bare assertions about their bills were not creditable given the other kinds of businesses they operate across the same networks (some of which were for two-way traffic), nor was it credible to believe that they had no business operation needs for other telecommunications services from Qwest. Qwest’s exhibits, in contrast, took each billing element and assigned it to interconnection or other types of services based on logical categorizations. Moreover, months before hearings, Qwest provided the detailed billing elements for each month of the reimbursement period involved. [The Pagers] . . . made no effort to show that specific billing elements detailed for them by Qwest and included in the Exhibits 201, 202 and 203 was incorrectly assigned to non-interconnection use.

Proposed Order at 11-12. We agree and adopt these findings.

Based upon our review of the testimony and exhibits in this case, we find that the Pagers did not adequately rebut Qwest’s evidence that the Pagers are not entitled to credits for non-paging services. In essence, the Pagers’ failure in attempting to distinguish between paging and non-paging is consistent with their arguments at the hearing. Namely, that they were entitled to a reimbursement of all of their charges. However, while we recognize that the Pagers are entitled to credit for paging services, they are not entitled to credits for their use of non-paging services and facilities to provide services such as long-distance, cellular, data, private-line, and the like. We conclude that Qwest presented sufficient evidence to demonstrate that it properly excluded non-paging services from the credit calculations.
E. Frame Relay
This section discusses a subset of the excluded services, facilities, and wide area calling arrangements particular to PageData. Mr. McNeal testified that he began discussions with Qwest in 1998 in order to consolidate his four paging terminals (Idaho Falls, Rexburg, Pocatello, Boise) into a single point of connection in Boise. Tr. at 163. To accomplish this consolidation, he entered into discussions with Qwest to transport his traffic via T-1 trunks. To accomplish this conversion to a single point of interconnection, Mr. McNeal envisioned using Qwest’s frame relay facilities. In other words, Mr. McNeal wanted to consolidate his PageData/InterPage operations by using frame relay services. He testified that Qwest refused his facilities request. Id.; Proposed Order at 15.
The Pagers’ witness Mr. Jackson testified that transporting Qwest traffic to the point of interconnection with the pager is the responsibility of Qwest. Tr. at 248. He acknowledged that frame relay system would be one way to transport that call but also acknowledged that “it doesn’t make any difference how Qwest transports the call to the point of interconnection as long as it’s delivered in a manner that is acceptable to the paging carrier.” Id. On cross-examination, he was asked whether the paging company has the ability to order “whatever facility it wants on the [Qwest] side of the network?” Tr. at 185. He responded that Qwest has the responsibility to deliver traffic to the pager “in a manner consistent with network standards, and obviously it is up to the receiving carrier to provision facilities adequate to receive the traffic, but its also the originating carrier’s obligation to provision facilities adequate to handle the traffic that they are sending.” He continued that “the paging carrier or the receiving carrier would certainly not order facilities from the LEC for a part of LEC’s network. That’s the LEC’s responsibility and LEC’s business.” Tr. at 285-86.
Qwest’s witness Ms. Fraser testified that Qwest could find no T-1 work orders for PageData or InterPage that were unfilled. In addition, she also said that single point of connection per LATA for the delivery of all traffic was only available to a Type 2 pager and that such Type 2 connection has only been available since 2000 (after the closing date for refunds in this case). Tr. at 400-401. All of the Pagers in this case were Type 1 pagers. Tr. at 400.
Commission Findings: Reduced to its simplest terms, PageData sought the ability to require that Qwest utilize certain facilities to transport traffic to the paging carrier. As the Hearing Examiner noted in his Proposed Order, the only question related to this issue is to determine “what portion of payments actually made should be credited because they relate to facilities or services necessary for the delivery of one-way paging traffic to petitioner’s network.” Proposed Order at 16.
As previously noted, PageData offered one-way Type 1 paging in addition to other services including long-distance, signal traffic, e-mails, data, Internet, two-way mobile service, private line, and POTS. Tr. at 148, 199, 353. The Hearing Examiner concluded that PageData did not provide sufficient evidence to support a claim that Qwest failed to transport calls to the pagers. We agree. We find that the record shows that Mr. McNeal wanted to consolidate his four points of interconnection into a single LATA-wide point of interconnection so that his paging and other services could all be transported by T-1 facilities and frame relay services. In short, PageData’s request to use T-1 and frame relay facilities were not solely for the delivery of one-way traffic to the pager. In this instance, we find it appropriate and reasonable that Qwest not credit PageData for the use of frame relay services.
F. Wide Area Calling Arrangements
In his Proposed Order, the Hearing Examiner noted that the TSR Order allows Qwest to charge its customers for calls made to pagers that would otherwise be toll calls. As the FCC noted in its TSR Order,
U S WEST must deliver the traffic to the [pagers] network without charge. However, nothing prevents U S WEST from charging its end users for toll calls. . . . Similarly, Section 51.703(b) does not preclude TSR and U S WEST from entering into wide area calling or reverse billing arrangements whereby TSR can “buy-down” the cost of such toll calls to make it appear to end users that they have made a local call rather than a toll call. Should paging providers and LECs decide to enter into wide area calling or reverse billing arrangements, nothing in the Commission’s rules prohibits a LEC from charging the paging carrier for those services.

TSR Order at ¶ 31 (footnotes omitted).
Qwest advocated and the Hearing Examiner adopted a “20-mile rule” to determine when traffic may properly be viewed as an otherwise long-distance or toll call and Qwest could have charged its end users the applicable toll charges. The 20-mile rule was based upon Qwest’s region-wide data showing the break point between local and long-distance calling areas. The Hearing Examiner observed that “Qwest failed to address the relationship between this 20-mile systemwide rule and the actual local calling areas in Idaho.” Proposed Order at 20. However, he noted that the Pagers did not present any evidence to contradict the 20-mile rule. Id.
In explaining how it calculated the 20-mile rule, Qwest witness Ms. Fraser noted that it was a region wide and not an Idaho-specific number. Tr. at 319. Under the 20-mile rule, anything under 20 miles would have no long-distance component but would be subject to the 24% transit figure mentioned above. Calls over 20 miles, would be calculated at the appropriate tariffed rate. Tr. at 319-20. In calculating the credit for Radio Paging, Qwest did not utilize the 20-mile rule because all the Pagers’ circuits/facilities were under 20 miles.
This over/under 20-mile rule was used for purposes of calculating the refunds. Ms. Fraser explained that she also used a “modified” version to compare the calculated amount with an “estimated amount.” For the estimate traffic and facilities from 0 to 25 miles were calculated as local calls; facilities of 26 to 50 miles were calculated 50% as local and 50% as non-local and facilities greater than 50 miles were considered as non-local facilities. Tr. at 440. To her, the estimates reinforced her calculations.
The Pagers offer two arguments against adoption of the 20-mile rule. First, they observed that the use of wide area calling or reverse billing arrangements mentioned in the TSR Order related to instances where the LEC and pager “entered” into an agreement for these types of services. Mr. McNeal testified that he had never “entered” into any agreement with Qwest for this type of service. Tr. at 502. On cross-examination, Qwest witness Ms. Fraser admitted that PageData did not have such an agreement with Qwest. Tr. at 412-13, 417. Second, the Pagers briefly noted in their Exceptions that Idaho has several large calling areas. For example, that the Treasure Valley calling area extends all the way from Mountain Home to Payette, “a distance of over 100 miles.” Exceptions at 25.
Commission Findings: The FCC’s Mountain Communications Order issued February 2002 is instructive in reviewing this issue. In that case, the FCC concluded that Qwest may charge its customers for calls made from one local calling area to a paging customer whose number is assigned to another local calling area of the LEC “even if both LEC calling areas are within the same MTA.” Mountain Communications Order at ¶ 11. The pager obtained DID numbers in each of Qwest’s local calling areas. “This enables 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.” Id. at ¶ 3. The FCC noted that pagers could create and use a number of different “wide area calling arrangements” so that it would appear to callers that toll charges were not applicable when calling a paging company located in a different local calling area. These arrangements include: 800 services, DID configurations, reverse billing or reverse toll, FX (foreign exchange), and other possible configurations such as frame relay. Id.
Qwest argued that it would ordinarily assess toll charges pursuant to its state toll tariffs for those calls made by its customers in local calling areas outside the local calling area where the pagers’ interconnection point is located. Id. at ¶ 13. Relying on the TSR Order, the FCC agreed with Qwest that if Mountain wants to avoid having callers to its paging customers pay such toll charges to access Mountain’s network, “it may enter into a wide area calling arrangement with Qwest.” Id. By requesting DID numbers in each of Qwest’s local calling areas, the FCC noted that the pager “has effectively entered into such an arrangement with Qwest by requesting dedicated toll facilities to transport calls made to DID numbers. . . .” Id. (emphasis added).
In Mountain Communications, the FCC concluded that its interconnection rule 51.703(b) “allows a LEC to charge for wide area calling or similar services . . . 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 Commission’s rules do not require LECs to offer such services at all.” Id. at ¶ 11. In particular, the FCC found that the provision of dedicated toll facilities provided by Qwest that enables the pager to offer its customer a local number in several local calling areas “is an optional service that is not necessary for interconnection.” Id. at ¶ 13.
Returning to our case, the Pagers argued that they never agreed to enter into wide area calling arrangements with Qwest. In particular, Mr. McNeal testified that he never agreed to such an arrangement with Qwest. However, as in Mountain Communications, we find that PageData’s and Tel-Car’s ordering of certain dedicated facilities from Qwest was the equivalent of “effectively enter[ing] into such an arrangement with Qwest by requesting dedicated toll facilities to transport calls made to the DID numbers.” Mountain Communications at ¶ 13. For example, Mr. Casper testified that he has a toll-free calling arrangement that runs from the Hailey exchange to the Twin Falls exchange and from the Burley exchange to the Twin Falls exchange. Tr. at 142-45. Here the paging carrier located in Twin Falls uses a DID number so that callers from Hailey and Burley do not have to incur a toll charge from Qwest.
The Pagers’ expert Mr. Jackson also noted that DID numbers used by paging carriers “are sent over what would be called dedicated facilities to another exchange.” Tr. at 252. PageData utilized a frame relay system “to pick up calls from other areas” and deliver them to his point of interconnection. Tr. at 248. Moreover, on cross-examination, Ms. Fraser testified that Qwest does not deliver LEC originated traffic over private line circuits to pagers. Tr. at 243.
We agree with the Hearing Examiner’s recommendation and find that PageData and Tel-Car ordered various network facilities and configurations that constitute wide area calling arrangements. We further find that Qwest may properly charge for those facilities and services that support wide area calling arrangements. The more difficult question is whether the 20-mile rule proposed by Qwest is reasonable. As the Hearing Examiner noted, the 20-mile rule was formulated based upon Qwest’s system-wide data from its operations in the 14 contiguous states.
Based upon the record before us, we find the 20-mile rule is an appropriate mechanism to distinguish between local calling on the one hand and various forms of wide area calling arrangements on the other. The Pagers’ argument against the 20-mile rule was primarily based upon their testimony that they never entered into calling arrangements with Qwest. But for a reference to large local calling areas, they did not specifically refute whether the 20-mile rule is a reasonable approximate for determining what services and facilities would constitute wide area calling arrangements. Consequently, we adopt the Hearing Examiner’s finding regarding this issue.
G. Billing and Payment Evidence
Both Qwest and the Pagers submitted evidence regarding the appropriate calculation of the credit due each pager. Qwest took its relevant information from its billing system. In his Proposed Order, the Hearing Examiner found that Qwest’s evidence adequately demonstrated the reasonableness of the amounts billed to and paid by the Pagers. In his summary, the Hearing Examiner noted that Qwest’s billing and payment evidence came with support from its sources; was carefully prepared; was adjusted as Qwest developed more information; was made available in sufficient detail to allow Petitioners to contest any billing element; and applied a series of explained and proper methods. Proposed Order at 4. In contrast, he characterized the Pagers evidence as not well supported, not capable of similar levels of verification, nor in sufficient detail to demonstrate its reliability. Id. In their Exceptions, the Pagers argued that they were entitled to a refund of all charges levied against them from September 24, 1996 “with the possible exception of approximately 5.5% of those charges (for transit traffic).” Exceptions at 28.
1. Radio Paging. Radio Paging argued that it was entitled to a uniform credit of $1,811.67 per month from a period of September 24, 1996 through May 13, 1999. Multiplying this amount by a 33-month recovery period would produce a total $59,785.11. Its owner Robert Ryder sought recovery of the entire amount. Tr. at 103-104, Pager Exh. 103. He testified that he stopped paying all bills to Qwest. He also indicated that he stopped paying for his ordinary business line. Radio Paging asserts that it is entitled to a principal refund amount of $57,309.16. Exceptions at 29, Exh. 103. In addition, calculation of the appropriate interest would add an additional credit of $12,214.11, or a total amount of $69,523.27 (without the 5.5% transit offset). Exceptions at 30.
Regarding calculation and the amount of credit due Radio Paging, Qwest submitted Exhibit No. 201. All of Qwest’s credit calculations started credits on November 1, 1996; used the 24% transit factor; removing non-paging services; and using the 20-mile formula where appropriate. Based upon the recalculations ordered by the Hearing Examiner, Qwest calculated the credit due as $41,182. This amount included interest through January 2002. Qwest Recalculated Summary, Exh. 1. All of Qwest’s recalculations included interest through January 2002.
2. Tel-Car. Tel-Car provides paging, cellular, and two-way answering-services in southern Idaho and interconnects with Qwest at Meridian, Twin Falls, and Pocatello. Tel-Car alleged that it is entitled to a credit of $68,833 (in principal) per its Exhibit 104. The Pager did not calculate interest was owing because the actual billed amounts fluctuated during the relevant time period. Exceptions at 32. Tel-Car believes that an additional $2,632.80 needs to be added for the time period between September 24 and November 1. Exceptions at 31. Consequently, the total amount of refund owing is $71,465.80 (without a transit traffic adjustment) plus interest. Exceptions at 31.
For its part, Qwest calculated that Tel-Car was entitled to a credit of $31,292 through January 2002. Qwest Recalculated Summary, Exh. 2.
3. PageData and InterPage. The owner of these combined companies, Joseph McNeal testified that his business carries paging traffic, signal traffic, e-mail, data, and Internet traffic all of which goes over the facilities he says should be available without charge. Tr. at 199. Mr. McNeal explained one reason he bought InterPage was to get the credit he thought the company would be entitled to from Qwest. Tr. at 219. Mr. McNeal testified that he is entitled to a refund of $52,282.47 for PageData and a refund from the InterPage operation of $188,473.56, or a total of $240,756.03 (without interest). Mr. McNeal testified that PageData stopped paying Qwest in 1999. Tr. at 196.
In its recalculation, Qwest calculated that Mr. McNeal was due a credit for both companies of $44,739 through January 2002. When asked to corroborate Qwest Exhibit 203 with his own Exhibit 109 and Exhibit 121, Mr. McNeal was generally unable to do so. Tr. at 531-34.
The Hearing Examiner found that the Pagers did not provide credible, contrary evidence of their bills and payments. Although he recognized that PageData made an “extensive attempt” to do so, its evidence was not so much offered for purpose of generating a complete and accurate list of services and facilities but “to bring Qwest to the table to respond to it.” Proposed Order at 10. The Examiner specifically noted that PageData “was unable to provide direct proof of payment, but submitted a number of documents that its accountants prepared and with which the witness was not very familiar.” Id.
Commission Findings: Having reviewed the evidence submitted by the Pagers and Qwest, we agree with the recommended findings of the Hearing Examiner that Qwest presented the better evidence. Qwest’s billing and credit information derived from its billing information and included payments made by the Pagers. With one correction noted below, we find that Qwest’s evidence was clearly superior to the evidence offered by the Pagers. We find Qwest’s evidence to be much more detailed, complete, and persuasive than the evidence offered by the Pagers.
Although we find Qwest’s calculation of the billing credit to be more persuasive, its calculations included interest through January 2002. We find that it is appropriate for Qwest to update its calculations of the credits due each Pager through July 31, 2002. Consequently, Qwest shall submit to the Commission and the parties in this case updated calculations in conformance with this Order through July 31, 2002 no later than 14 days from the service date of this Order. It is the Commission’s intent that the credits due each Pager be credited to their respective accounts within 28 days from the service date of this Order.
In summary, the Commission adopts the recommended findings of the Hearing Examiner. The Commission finds that the appropriate date from which credits begin is November 1, 1996. The Commission further finds that it is reasonable to utilize a 24% figure for transit traffic and to exclude non-paging services and facilities from the calculation of the credits due each Pager. The Commission also concludes that two of the Pagers have effectively entered into wide area calling arrangements that would reduce the amounts of their credits. Finally, the Commission finds that it is reasonable to compensate Qwest for the wide area calling arrangements based on a 20-mile formula.
O R D E R
IT IS HEREBY ORDERED that the untimely documents submitted by Qwest and the Pagers are neither accepted nor considered as part of this record. The Pagers June 2002 request to supplement their Exceptions is also denied.
IT IS FURTHER ORDERED that the appropriate transit traffic figure based upon the evidence produced in this case is 24%.
IT IS FURTHER ORDERED that the Pagers are not entitled to receive billing credits for non-paging services and facilities.
IT IS FURTHER ORDERED that PageData is not entitled to a credit for its ordered frame relay services.
IT IS FURTHER ORDERED that PageData and Tel-Car not be credited for their wide area calling arrangements.
IT IS FURTHER ORDERED that Qwest recalculate the credits due each Pager in conformance with the findings of this Order. Qwest shall file the recalculated credits with the Commission and the Pagers no later than 14 days from the service date of this Order.
IT IS FURTHER ORDERED that Qwest issue the respective credits to the Pagers no later than 28 days from the service date of this Order.
THIS IS A FINAL ORDER. Any person interested in this Order (or in issues finally decided by this Order) or in interlocutory Orders previously issued in this Case No. USW-T-99-24 may petition for reconsideration within twenty-one (21) days of the service date of this Order with regard to any matter decided in this Order or in interlocutory Orders previously issued in this Case No. USW-T-99-24. Within seven (7) days after any person has petitioned for reconsideration, any other person may cross-petition for reconsideration. See Idaho Code § 61-626.

DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of July 2002.

PAUL KJELLANDER, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

Commissioner Hansen did not participate
in this decision
DENNIS S. HANSEN, COMMISSIONER

ATTEST:

Jean D. Jewell
Commission Secretary

bls/O:USWT9924_dh
The Petition was treated as a “complaint” against Qwest because the Pagers sought specific relief from Qwest’s conduct and billing practices. Order No. 28601, n. 2 and Order No. 28427 at 5.

In June 1998, the owner of PageData, Joseph McNeal, purchased the assets of another paging company called InterPage. Pagers Post-Hearing Brief at 28.

TSR Wireless v. U.S. WEST Communications, 15 FCC Rcd 11,166 (2000), Petition for Recon. dismissed, 16 FCC Rcd 11,462, aff’d sub nom. Qwest v. FCC, 252 F.3d 462 (D.C. Cir. 2001).

Implementation of the Local Competition Provisions of the Telecommunications Act of 1996, CC Docket No. 96-98, First Report and Order, 11 FCC Rcd 15,499 (1996), aff’d in part and vacated in part sub nom., Competitive Telecommunications Ass’n v. FCC, 117 F.3d 1068 (8th Cir. 1997) and Iowa Utilities Bd v. FCC, 120 F.3d 753 (8th Cir. 1997), aff’d in part and remanded, AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 119 S.Ct. 721 (1999).

A LATA (local access and transport area) is a geographic area designed by the United States District Court in the Modification of Final Judgment in the divestiture of AT&T and the Bell Operating Companies (BOCs). The LATAs were created to facilitate the division of assets between AT&T and the BOCs, and to mark the boundaries within which the BOCs could transport calls. As approved by the Court, all of the Qwest local exchanges south of the Salmon River are included in a single LATA, called the Boise LATA. Eight exchanges served by Qwest North (formerly Pacific Northwest Bell) in the Lewiston area are included in the Spokane LATA. Also in northern Idaho is the Coeur d'Alene market area served by Verizon Northwest and not associated with either the Spokane or the Boise LATA. Thus, although Idaho is often thought to consist of just one LATA, it is actually split among three major service areas.

DID is the acronym for “Direct Inward Dialing.” It is a feature of PBX and Centrex systems that allows a caller to directly dial an internal telephone number. The digits are passed down the line from the LEC’s central office switch. Newton’s Telecom Dictionary at 272 (16th Ed. 2000).
Tel-Car had no interconnection agreement with Qwest. Order No. 28427 at 3.

In their request to supplement, the Pagers assert that Tel-Car “has gone out of business.” Pagers Request to Supplement at 8. In this instance, billing credit may not be appropriate.
At the hearing, the owners of Radio Paging and PageData initially testified that they are entitled to a refund of all of the alleged overcharges without any set-offs. Tr. at 104, 154, 157; Exceptions at 29 (“a refund of all amounts billed and paid is required”). However, at the time of the July 2001 evidentiary hearing, the FCC had not issued its Metrocall Order (October 2, 2001) clearly affirming the LEC’s right to recover the costs for transit traffic.
The 1999 study of that single pager’s traffic showed a transit traffic figure of 27%. Tr. at 389.
On rebuttal, Mr. McNeal testified that he did not begin his Internet business until after the end of the credit period. Tr. at 545-46.
A “T-1 line” is the standard for digital transmission circuits in North America. Unchannelized T-1 lines may transport not only voice but data, video and IP telephony. An unchannelized T-1 provides speeds up to 1.536 million bits per second (bps). Unchannelized T-1 also are commonly used to access a frame relay network. Newton’s Telecom Dictionary at 859, 16th Ed. (2000).

“Frame relay” is a method of achieving high-speed, packet-switched data transmissions within digital networks at transmission speeds between 56 kbps and 1.544 million bps. Access to a frame relay is usually accomplished by using a dedicated digital T-1 circuit. Telecom Lingo Guide at 96 (8th Ed. 1996); Newton’s Telecom Dictionary at 373-74, 16th Ed. (2000).
Calling distances are normally measured in air miles. In air miles, the distance is approximately 90 miles. Idaho Official Highway Map (2000).

See supra note 6.
See supra note 11.
See supra note 8.

ORDER NO. 29064 1

Office of the Secretary
Service Date
July 17, 2002