Parties in Peerless Case Ask Court to Refer Technical Issues to FCC
Plaintiffs Qwest, Level 3 and Global Crossing participated with the eight defendant Peerless Network state affiliates in mediation Feb. 7 in Washington before Morgan Lewis partner Frank Lamancusa, a former DOJ and FCC attorney (see 2301260037), but were “unsuccessful in…
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their efforts to resolve the matter,” said a joint status report Friday (docket 1:21-cv-03004) in U.S. District Court for Colorado on Denver. Though the parties participated in the mediation in good faith, they “do not believe there is a reasonable prospect of settlement any time in the near future,” said the report. The case involves negotiated interconnect agreements and the access tariffs associated with them. Qwest, Level 3 and Global Crossing sued the Peerless affiliates in November 2021, alleging they engaged in a scheme of avoiding mandatory switched access charges, thereby giving them an unfair competitive advantage in the toll-free marketplace (see 2211030043). The defendants countersued in March, alleging the telecom companies used unfair and unsupported billing methods, to the detriment of the Peerless affiliates. As a result of the unsuccessful mediation, the parties now ask the court to refer the complex technical issues in the case to the FCC for the agency’s consideration (see 2210200050) under “the doctrine of primary jurisdiction,” and to stay the litigation, pending the outcome of the referral, it said. The issues for FCC referral: (1) Are toll-free calls always interexchange calls subject to tariffed switched access charges?; (2) Are “responsible organizations” (Resp Orgs) required to populate the SMS/800 database with their own carrier identification code, or the CIC of a carrier they have specifically engaged, or can a Resp Org populate the database with CIC 0110 and route toll-free calls to a regional bell operating company like Qwest for completion over local interconnection trunk groups?; and (3) If a Resp Org routes a toll-free call over a local interconnection trunk group utilizing CIC 0110, is the Resp Org required to pay the regional Bell operating company its tariffed switched access charges depending on the end points of the call?