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Farmers and Merchants v. FCC & USA, No. 10-1093 (D.C. Cir.)

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Released: December 30, 2011
USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 1 of 15
United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2011
Decided December 30, 2011
No. 10-1093
FARMERS AND MERCHANTS MUTUAL TELEPHONE
COMPANY OF WAYLAND, IOWA,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
NORTHERN VALLEY COMMUNICATIONS, LLC, ET AL.,
INTERVENORS
On Petition for Review of Orders of
the Federal Communications Commission
John F. Cooney argued the cause for petitioner. With him
on the briefs were James U. Troup, Tony S. Lee, and Christine
McLaughlin
.
Ross A. Buntrock argued the cause for intervenor Northern
Valley Communications, LLC. With him on the briefs was G.
David Carter. Jonathan E. Canis
and Stephanie A. Joyce entered
appearances.

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 2 of 15
2
Joel Marcus, Counsel, Federal Communications
Commission, argued the cause for respondents. With him on the
brief were Austin C. Schlick, General Counsel, Peter Karanjia,
Deputy General Counsel, and Richard K. Welch, Acting
Associate General Counsel. Robert B. Nicholson and Robert J.
Wiggers
, Attorneys, U.S. Department of Justice, and Daniel M.
Armstrong III
, Associate General Counsel, Federal
Communications Commission, entered appearances.
David H. Solomon argued the cause for intervenors Qwest
Communications Company, LLC, et al. With him on the brief
were Craig J. Brown, Russell P. Hanser, Robert B. McKenna,
Charles W. McKee, Michael B. Fingerhut, Scott H. Angstreich,
Gregory G. Rapawy, M. Robert Sutherland, Gary L. Phillips,
Paul K. Mancini, Michael E. Glover, Karen Zacharia, and
Christopher M. Miller. David L. Lawson and James P. Young
entered appearances.
Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: In the three challenged orders, the
Federal Communications Commission addressed a “traffic
pumping” (or access stimulation) scheme in which the holder of
the filed tariff entered into contractual arrangements with
conference calling companies and charged the interexchange
carrier the tariff rate for providing switched access service.
Interpreting the tariff to require switched access service to be
provided to an end user, the Commission determined that the
contractual arrangements were inconsistent with the subscriber
relationship required by the tariff and violated 47 U.S.C. §§
201(b) and 203(c). The Commission also determined, in the
alternative, that the tariff holder had exceeded the permissible
rate of return under the tariff and violated 47 U.S.C. § 201(b).
Farmers & Merchants Mutual Telephone Company (“Farmers”),

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 3 of 15
3
the holder of the tariff, petitions for review on the grounds that
in addition to ignoring jurisdictional requirements, the
Commission misread the tariff and failed to adhere to its
precedent and rules. For the following reasons, we deny the
petition.

I.

In May 2007, Qwest Communications Corporation
(“Qwest”), an interexchange carrier (“IXC”) receiving access
services from Farmers, filed a complaint alleging that Farmers
was collecting “unreasonably high terminating switched access
charges by inflating the amount of traffic delivered to it by
Qwest and other [IXCs] in a manner that rendered Farmers’s
rates wholly unrelated to its costs.” Compl. at 1. Qwest argued
the charges to it were unlawful under sections 201(b) and 203(c)
of the Communications Act of 1934, as amended, and elected to
have the amount of any damages determined in a separate
proceeding. In response, the Commission issued the challenged
orders:
- In Farmers I,1 the Commission ruled that Farmers had
violated section 201(b) by earning an excessive rate of return,
but Qwest could not recover damages because Farmers’ tariff
was “deemed lawful” under 47 U.S.C. § 204(a)(3). In its answer
to the complaint, Farmers stated that the conference calling
companies were subscribers to Farmers’ interstate access service
and were billed the federal subscriber line charge as well as for
local telephone service and rental of floor space in Farmer’s
central office (where the conference bridges were located).
Answer at vii.
1
Qwest Comm’cns Corp. v. Farmers & Merchants Mutual
Tel. Co. (“Farmers I”), 22 FCC Rcd. 17973 (2007), 2007 WL
2872754 (F.C.C.).

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 4 of 15
4
- In Farmers II,2 the Commission, after granting Qwest’s
request for partial reconsideration and initiating additional
proceedings, found that new evidence supported Qwest’s
assertion that the conference calling companies, in fact, never
took tariffed services from Farmers.3 The Commission found that
because the companies were not end users under the tariff,
“Farmers’ transport of traffic to them did not constitute
‘switched access’ under the tariff” and therefore Farmers’
corresponding charges to Qwest were unlawful under sections
201(b) and 203(c) of the Communications Act. Farmers II, 24
FCC Rcd. at 14813. The Commission also reaffirmed its ruling
on Farmers’ unreasonable rate-of-return. Consequently, Farmers
had violated sections 201(b) and 203(c) and was liable to Qwest
for damages.
- In Farmers III,4 the Commission denied Farmers’ petition
for reconsideration, rejecting challenges to its authority to issue
Farmers II and its determination that the companies were not
“end users” under Farmers’ tariff.
2
Qwest Comm’cns Corp. v. Farmers & Merchants Mutual
Tel. Co. (“Farmers II”), 24 FCC Rcd. 14801 (2009), 2009 WL
4073944 (F.C.C.).
3 The new evidence regarding Farmers’ relationships to the
conference calling companies came to light in a parallel proceeding
before the Iowa Utility Board. Farmers II, 24 FCC Rcd. at 14804.
That evidence indicated that contract amendments and bills for
services had been executed or created at dates much later than would
have been apparent from their face. See id. at 14812.
4
Qwest Comm’cns Corp. v. Farmers & Merchants Mutual
Tel. Co. (“Farmers III”), 25 FCC Rcd. 3422 (2010), 2010 WL
972315.

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 5 of 15
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II.
As a threshold matter, Farmers, joined by intervenor
Northern Valley Communications, LLC (“Northern Valley”),
contends that the Commission lacked authority to overturn its
decision in Farmers I because it failed, as 47 U.S.C. § 405(b)
requires, to act within 90 days on Qwest’s petition for partial
reconsideration and, consequently, Farmers I became a final,
appealable order. This contention is based on a misreading of
the statute.
Section 405(b) requires the Commission to “issue an order
granting or denying” a petition for reconsideration within 90
days, 47 U.S.C. § 405(b)(1), and provides that any such order
granting or denying a petition shall be a final, appealable order,
id. § 405(b)(2). By its plain terms, this provision does not speak
to the finality of the original order for which reconsideration is
sought, but rather to the Commission’s need to grant or deny a
petition for reconsideration. See Chevron U.S.A. Inc. v. Nat’l
Res. Def. Council, Inc.
, 467 U.S. 837, 842–43 (1984).
The Commission granted in part Qwest’s petition for partial
reconsideration on January 29, 2008, within 90 days after Qwest
filed its petition on November 1, 2007. In its order, the
Commission initiated additional proceedings to compel
production of and to consider previously undisclosed evidence.
Qwest’s Second Supplement to Petition for Reconsideration was
submitted as part of the additional proceedings, and was not, the
Commission maintains, a separate petition for reconsideration of
an order, decision, report, or action taken by the Commission.
The Commission’s interpretation of section 405 and its rule, see
47 C.F.R. § 1.106, as allowing it to defer a ruling on the merits
pending completion of the additional proceedings appears
reasonable and entitled to deference. See Chevron, 467 U.S. at
843. But even if the Commission had missed the 90-day

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 6 of 15
6
deadline, it would not have lost jurisdiction to issue Farmers II
because Congress established no consequence for failing to meet
that deadline.5 See Brock v. Pierce Cnty., 476 U.S. 253, 265–66
(1986); Gottlieb v. Pena, 41 F.3d 730, 733 (D.C. Cir. 1994);
AT&T Corp. v. Beehive Tel. Co., 17 FCC Rcd. 11641, 11652 &
n.80 (2002). Contrary to intervenor Northern Valley’s
contention during oral argument, we find nothing in the
legislative history to support a contrary reading of section 405.
See S. REP. NO. 100-142 (1987).
Farmers’ suggestion that the Commission lacked subject
matter jurisdiction ab initio over Qwest’s complaint “is flatly
wrong.” Resp’t’s Br. at 38. Farmers maintains that if the
Commission was correct that Qwest was not required to pay
Farmers’ access-service tariff rates, then the service Farmers
provided was not a common-carrier service offered in a tariff and
the Commission exceeded its authority by considering Qwest’s
complaint under the Communications Act’s Title II common-
carrier provisions. The Commission had jurisdiction to consider
Qwest’s complaint pursuant to 47 U.S.C. § 208(a), which
provides authority to adjudicate complaints “of anything done or
omitted to be done by any common carrier” in violation of the
Communications Act. Farmers held itself out as a common
carrier providing access service to IXCs such as Qwest and billed
5 A similar analysis disposes of intervenor Northern Valley’s
contention that the Commission lost its authority to act after 90 days
(47 U.S.C. § 405(b)) and five months (47 U.S.C. § 208(b)), and that
Farmers I was therefore a final order. Rule 1.106(n), 47 C.F.R.
§ 1.106(n), which requires compliance with a Commission order
subject to a petition for reconsideration, does not, as Northern Valley
implies, address the Commission’s authority to conduct proceedings
after the 90-day deadline, much less require the Commission to stay
Farmers I inasmuch as it granted partial reconsideration of that order.

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 7 of 15
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Qwest for that service. Section 203(c)(3) makes unlawful a
common carrier’s provision of service outside of the terms of its
tariff; Qwest’s complaint alleged Farmers violated section 203(c)
and a Commission ruling Farmers did so could not immunize it
from the complaint process.

III.

The merits question is whether the Commission properly
determined that Farmers was not entitled to bill Qwest for access
service under Farmers’ tariff because Farmers had not provided
interstate “switched access service” as that term is defined in
Farmers’ federal access tariff. In matters of tariff interpretation,
the court applies a deferential standard of review and will uphold
the Commission’s interpretation where it is “reasonable [and]
based upon factors within the Commission’s expertise.” Global
NAPs, Inc. v. FCC
, 247 F.3d 252, 258 (D.C. Cir. 2001) (internal
citation omitted).
The Commission relied on three key provisions in Farmers’
tariff in concluding that the tariff allowed Farmers to provide
(and bill for) switched access service only when it delivers a call
to an end user, i.e., a person or entity that subscribes to Farmers’
service under the tariff. At the relevant time, Farmers was
operating under the Kiesling Associates LLP FCC Number 1
Tariff (“Kiesling Tariff”), which incorporates provisions of the
National Exchange Carrier Association FCC Tariff Number 5
(“NECA Tariff”), e.g., Kiesling Tariff §§ 2, 6. Under Farmers’
tariff: (1) “switched access” means a service that allows an IXC
“to terminate calls from a customer designated premises to an
end user’s premises.” NECA Tariff § 6.1 (emphasis added). (2)
The term “end user” means “any customer . . . that is not a
carrier.” Id. § 2.6 (emphasis added). (3) “Customer” means an
entity that “subscribes to the services offered under th[e] tariff.”
Id. (emphasis added). The Commission therefore determined

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 8 of 15
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that Farmers may provide and bill for switched access service
only when it delivers a call to an entity that “subscribes” to that
service under its tariff. Whether the conference calling
companies subscribed to switched access service under Farmers’
tariff turns on the nature of Farmers’ relationship with the
companies, a subject demonstrably within the Commission’s
expertise.
The Commission found that “in numerous respects,”
Farmers III, 25 FCC Rcd. at 3426, the conference calling
contracts did not establish a subscriber relationship under
Farmers’ tariff. The evidence showed that the conference calling
companies never paid subscriber line charges or made any other
payments to Farmers, and that Farmers never expected to be
paid. See id. The Commission also found, for several reasons,
that Farmers and the conference calling companies did not
structure their relationship in a manner consistent with Farmers’
tariff as evidenced by the contract terms and Farmers’ conduct.
Id. As examples, the Commission cited the exclusivity
provisions in the conference calling contracts, a practice
“antithetical to the notion of tariffed service,” Farmers II, 24
FCC Rcd. at 14807, and the fact that Farmers used different
technology than it used for other customers, id. at 14806, and
each company enjoyed individually negotiated terms and
conditions, id. at 14807. Unlike its practice with other
customers, Farmers did not send regular bills or enter the
companies into its billing system, id. at 14808. Neither did
Farmers pay the federal universal service charge that would have
accrued for service provided to a subscriber, id. at 14813 n.97.
Further, Farmers agreed not to charge the conference calling
companies for services, the subscriber line charge, equipment
installation, or space in Farmers’ central office. Id. at 14806 &
nn.48, 49. And after the Qwest complaint proceedings began,
Farmers created backdated bills and contract amendments while
advising the conference calling companies they still did not have

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 9 of 15
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to pay, id. at 14808-10. Based on these findings, which Farmers
does not challenge, the Commission concluded that Farmers
never intended to treat the conference calling companies as
customers of any of Farmers’ tariffed services. Its findings
demonstrate, moreover, that the Commission’s decision in
Farmers II did not hinge upon the single issue of whether the
conference calling companies were required to make payments
to Farmers in order to be considered subscribers of Farmers’
services. Farmers III, 25 FCC Rcd. at 3426.
Farmers’ challenges to the Commission’s interpretation of
the tariff fail to show the Commission was unreasonable or
considered factors outside of its expertise such that deference
would not be appropriate:
1. Farmers maintains that the Commission ignored the plain
terms of the tariff, which require Qwest to pay the tariff rate
regardless of whether the conference calling companies were end
users. It points to several subsections of section 6.1 that do not
refer to end users, see, e.g., NECA Tariff §§ 6.1.3(A), 6.4.1(C),
in contending that general rules of construction require specific
provisions of the tariff to control over the general. The
Commission persuasively responds that the general definition of
section 6.1 is incorporated into the subsequent, more-specific
provisions of section 6.
First and foremost, the tariff itself includes a diagram of
switched access service that illustrates an end user as one of the
sub-elements of that service. See NECA Tariff § 6.1.3.
Additionally, under the rules of construction for the NECA
Tariff, each of the subsections is “subordinate to and dependent
on [the] next higher level” of the tariff. NECA Tariff, Tariff
Users Guide, at 30; see Kiesling Tariff, Tariff Users Guide at 4
(noting incorporation of NECA Tariff language). The
Commission’s reading of the tariff thus was well within its

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 10 of 15
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discretion. See Diamond Int’l Corp. v. FCC, 627 F.2d 489, 492
(D.C. Cir. 1980).
Farmers’ other arguments also fail to show deference is not
due to the Commission’s interpretation that switched access
service under the tariff requires service to an end user. Farmers’
reliance on In re Investigation of Access & Divestiture Related
Tariffs
(“Tariff Investigation”), 97 F.C.C. 2d 1082, 1229 (1984),
where the Commission expressed discomfort with the
“fragmentary description” of switched access service in section
6.1 of the NECA Tariff, is misplaced; the tariff language has
since been changed to clarify that section 6.1 contains a unitary
definition of switched access service, compare NECA Tariff
§ 6.1, Petr.’s Br. Addendum at A-74 with prior version of § 6.1
quoted in Tariff Investigation, 97 F.C.C. 2d at 1229. Farmers’
reliance on general rules of contract construction is similarly
misplaced; the relevant contract-law principle applies when
general and specific provisions conflict, see Mutual Life Ins. Co.
v. Hill
, 193 U.S. 551, 558 (1904), and Farmers fails to show such
conflict exists here.
2. No more successful is Farmers’ challenge to the
Commission’s alternative ruling that even if the service it
provided to Qwest constituted “switched access” under the tariff,
Farmers exceeded the allowable rate of return and thereby
violated 47 U.S.C. § 201(b), Farmers III, 25 FCC Rcd. at
3427–28. Farmers contends that this alternative ground was
erroneous because the Kiesling Tariff had previously been
“deemed lawful” under 47 U.S.C. § 204(a)(3). Two responses
suffice.
First, the Commission identified two independent bases for
section 201(b) liability. It found that Farmers did not provide
Qwest with “switched access” under its tariff, and that its
practice of charging Qwest for such service was therefore unjust

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 11 of 15
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and unreasonable under section 201(b). See Farmers III, 25 FCC
Rcd. at 3427–28. The service provided by Farmers to the
conference calling companies was not a tariffed service and so
Farmers’ assessment of switched access charges to Qwest
violated sections 201(b) and 203(c) of the Communications Act.
Id. The Commission identified the rate-of-return violation as an
alternative and independent basis for Farmers’ section 201(b)
liability. Id. As clarified in Farmers III, “[e]ven if the carriage
of traffic from Qwest to the conference calling companies could
be said to constitute switched access under Farmers’ tariff, . . .
the Commission could have reached the same conclusion [as to
liability] by finding that Farmers’ earning an excessive rate of
return violated section 201(b) of the Act.” Id.
Second, the Commission’s alternative basis for section
201(b) liability did not violate any principles regarding
retrospective relief. Farmers’ rates were deemed lawful and not
subject to refund until the Commission determined otherwise,
see Virgin Islands Tel. Corp. v. FCC, 444 F.3d 666, 669 (D.C.
Cir. 2006), as it did in view of new evidence. Nothing in
Farmers III imposes a retrospective refund: rather the
Commission found that the rates could properly serve as a basis
for section 201(b) liability even if they had been properly
charged under the tariff and Qwest thus could qualify for
prospective relief.
3. Farmers contends that even if Qwest’s obligation to pay
access service tariff rates depended on whether the conference
calling companies were end users, the Commission was arbitrary
and capricious and acted contrary to law and principles of due
process by departing from its precedent without explanation.
Farmers points to the Jefferson Telephone cases,6 which it reads
6 AT&T Corp. v. Jefferson Tel. Co. (“Jefferson II”), 16 FCC
Rcd. 16130 (2001); In re Jefferson Tel. Co., Notice of Apparent

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 12 of 15
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to stand for the proposition that business arrangements
inconsistent with a tariff are immaterial so long as the conference
calling companies that do business with the tariff holder “enter[]
their names for” the access service covered by the tariff.
Farmers then invokes the filed rate doctrine, which generally
requires that all parties that take service under a tariff pay the
tariff rate, e.g., Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577
(1981). Farmers’ reliance on this precedent is to no avail.
The Commission’s decision did not contravene its holdings
in the Jefferson Telephone cases. As a preliminary due process
matter, Jefferson I is under judicial seal and was made available
to Qwest only upon order of this court of September 2, 2010.
Not only was Qwest deprived of this authority during the
proceedings before the Commission, the Commission was
deprived of the benefit of an adversarial process and was unable
to discuss the Jefferson I opinion in any detail in its decision.
Commission rules prohibit reliance on unpublished orders,
“except against persons who have actual notice of the document
. . . or by such persons against the Commission.” 47 C.F.R.
§ 0.445(e). Qwest did not have notice of Jefferson I until this
appeal. In Jefferson II, which is not under seal, the Commission
“emphasize[d] the narrowness of [its] holding” and limited it to
“the specific facts and arguments presented.” 16 FCC Rcd. at
16137. The issue there was whether a local exchange carrier’s
inducement of conference call traffic was inconsistent with a
common carrier’s duty to carry traffic indifferently, id. at
16133–34, and whether revenue sharing between the carrier and
the conference calling company violated section 202(a)’s
restriction on “undue or unreasonable preference[s],” id. at
16136 n.38. But, although the IXC was ordered to pay the access
service tariff rate, the Commission neither mentioned the filed
Liability for Forfeiture & Order to Show Cause (“Jefferson I”), FCC
Order No. 96-430 (1996).

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 13 of 15
13
rate doctrine nor indicated that it applied to the dispute. Indeed,
neither of the Jefferson Telephone cases established that
conference calling companies are end users under the NECA
Tariff; tariffed service appears to have been assumed, see id. at
16131–32; Letter Ruling, Nov. 10, 2010, FCC Deputy Chief,
Market Disputes Resolution Div., Enforcement Bureau, at 4
(discussing Jefferson I). Consequently, in the absence of
relevant holdings by the Commission, the Commission properly
applied the principles of tariff interpretation to Farmers’ tariff
and adequately distinguished relevant precedent, an approach
consistent with due process.
Second, Farmers fares no better in invoking the filed rate
doctrine. Because the Commission could properly conclude that
the conference calling companies were not end users under the
tariff, tariffed services are not at issue. Therefore, as explained
in Farmers II, the filed rate doctrine does not apply. The
Commission has long instructed that a service that does not “fall
within the plain meaning” of the tariff is not governed by the
tariff whether or not it is “functionally similar” to a tariffed
service. W. Union Corp. v. S. Bell Tel. & Tel. Co., 5 FCC Rcd.
4853, 4855 (1990); see also 47 U.S.C. § 203(c); New Valley
Corp. v. Pac. Bell
, 15 FCC Rcd. 5128, 5132–33 (2000).
Although it did not decide how traffic to the conference calling
companies should be classified, see Farmers III, 25 FCC Rcd. at
3427 n.43, the Commission based its conclusion, that in the
absence of an end user such traffic did not constitute switched
access service under the tariff, on the controlling plain text of
Farmers’ tariff. The service was outside of the tariff and, as
such, the filed rate doctrine could not protect Farmers from
liability to Qwest.
To the extent Farmers contends the Commission acted
contrary to its rules, the Commission observes, as it did in
Farmers II, that “Farmers’ tariff may have defined switched

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 14 of 15
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access more narrowly than was permissible under [its] rules.”7
Resp’t’s Br. at 49. In any event, the rules governing what local
exchange carriers must include in their tariffs, see, e.g., 47
C.F.R. §§ 69.4, 69.5, neither apply to the IXCs nor limit the
Commission here. If Farmers’ tariff did not apply to the services
it was providing to Qwest, then Farmers violated such rules, not
the Commission. Farmers’ reliance on 47 U.S.C. § 202(a),
prohibiting discrimination of charges for like services to like
parties, also fails because the services billed to Qwest were for
tariffed services it did not receive. Intervenor Northern Valley
likewise gains no traction on a section 202(a) claim by noting
that Qwest may recover damages in connection with services for
which other IXCs have already paid.
4. Finally, Farmers suggests that in Farmers II the
Commission retroactively applied a new standard for being a
subscriber under the tariff without fair notice or reasoned
analysis; this contention, however, ignores the fact that in
Farmers I the Commission relied on Farmers’ answer to the
complaint stating that the conference calling companies were
subscribers, paying and being billed monthly. “On
reconsideration, the landscape shifted dramatically” because
“[t]he record contained many more facts about the relationship
between Farmers and the conference calling companies.”
Farmers III, 25 FCC Rcd. at 3426. The Commission concluded:
“Farmers withheld critical evidence during the earlier stages of
this proceeding, and it now attempts to bind the Commission to
7 Hence, Farmers’ reliance on the Commission’s description
of what its rules allow in the Report and Order and Further Notice of
Proposed Rulemaking, In re Connect America Fund
, FCC Order No.
11-161, at 216, 2011 WL 5844975, at *168 (Nov. 18, 2011), does not
help its cause. Letter of Nov. 29, 2011 from John F. Cooney, Counsel
for Farmers, to Mark J. Langer, Clerk of Court, filed pursuant to FED.
R. APP. P. 28(j).

USCA Case #10-1093 Document #1350265 Filed: 12/30/2011 Page 15 of 15
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a ruling that was predicated upon the incomplete factual record.
On reconsideration, the Commission is entitled to review new
facts and to change its ruling based on the new facts,” which “is
precisely what happened here . . . .” Id. at 3426–27. Intervenor
Northern Valley’s suggestion that the Commission erred by not
examining the state tariff to consider Farmers’ relationship with
the conference calling companies is not properly before the
court: the Commission was not given an opportunity to pass on
it, 47 U.S.C. § 405(a); Environmentel, LLC v. FCC, 661 F.3d 80,
84 (D.C. Cir. 2011); Bartholdi Cable Co. v. FCC, 114 F.3d 274,
279 (D.C. Cir. 1997); and an intervenor cannot raise issues not
raised in Farmers’ brief, see Ill. Bell Tel. Co. v. FCC, 911 F.2d
776, 786 (D.C. Cir. 1990).
In sum, the Commission, upon considering factors within its
expertise, could reasonably conclude that Farmers’ relationships
with the conference calling companies had been deliberately
structured to fall outside the terms of Farmers’ tariff and
therefore reasonably reject such services as tariffed services.
Deference to the Commission’s determination is thus
appropriate. See Global NAPs, 247 F.3d at 257–58; Diamond
Int’l
, 627 F.2d at 492. To the extent Farmers protests what it
characterizes as a “windfall” for Qwest, Oral Argument at 1:34,
whether Farmers can set off, and to what extent, its costs of
providing service against Qwest’s claim for damages is not
before the court. See Farmers III, 25 FCC Rcd. at 3424 & n.19;
Compl. at 27, ¶ 59. Accordingly, we deny the petition.

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