Plaintiffs in Peerless Case Press for Referral of Issues to the FCC

Issues central to the case involving defendant Peerless Network in its legal fight with plaintiffs Qwest, Level 3 and Global Crossing should be referred to the FCC “under the doctrine of primary jurisdiction,” said the plaintiffs in a legal brief Thursday (docket 1:21-cv-03004) in U.S. District Court for Colorado. The case was moved last week into a proceeding under a magistrate judge for alternative dispute resolution (see 2210130069).

The case involves negotiated interconnect agreements and the access tariffs associated with them. Qwest, Level 3 and Global Crossing sued Peerless affiliates in eight states in November, alleging, among other infractions, that they engaged in a scheme of avoiding mandatory switched access charges, thereby giving them an unfair competitive advantage in the toll-free marketplace. The defendants countersued in March alleging the companies used unfair and unsupported billing methods, plus other accusations.

The “complicated and technical issues” raised in the case are “within the peculiar domain of the FCC,” said the plaintiffs Thursday.

Whether toll-free calls are always “interexchange calls subject to tariffed switched access charges” is one of the issues that plaintiffs want the court to refer to the FCC, said the brief. Another is whether “responsible organizations” (RespOrgs) are required to populate the SMS/800 database with their own carrier identification code or the CIC of a carrier they have specifically engaged, it said.

The FCC also is well qualified to know whether a RespOrg can populate the database with “CIC 0110,” and route toll-free calls to a regional bell operating company such as Qwest, “for completion over local interconnection trunk groups,” said the brief. If a RespOrg routes a toll-free call over a local interconnection trunk group using CIC 0110, said the brief, the commission should weigh in on whether the RespOrg is required to pay the regional Bell operating company its “tariffed switched access charges depending on the end points of the call.” That would mean intrastate switched access if the call originates and terminates in the same state, and interstate switched access if the call originates and terminates in different states, it said.

Section 207 of the Communications Act permits claims against carriers to be raised either to the FCC or in a district court, but prohibits pursuing both venues, said the brief. Contrary to Peerless’ “insinuation” that bringing this action in this district court destroys the FCC’s “jurisdiction,” the very existence of the primary jurisdiction doctrine “proves otherwise,” it said. “Case after case has been raised in a district court, then stayed (in part or in whole) so specific underlying issues could be decided by the FCC,” and the same should be done in this case, it said.