On December 30, 2011, the Court of Appeals for the DC Circuit upheld the FCC’s determination that Farmers (a local exchange carrier) was not entitled to bill Qwest (a long distance carrier) for access service under Farmers’ federal access tariff because that tariff was poorly drafted.

Specifically, the Farmers tariff description of “switched access service” was found not to cover transporting and terminating calls to conference calling providers from long distance carriers. Because the tariff did not cover the specific service provided, Farmers was precluded from billing Qwest out of its tariff.

Key Considerations

• Local exchange carriers always have been able to charge long distance companies tariffed-based access charges for terminating calls to conference calling providers and other non-traditional customers. The tariff just has to properly describe this relationship and the service provided.
  
  
• Carriers must vigilantly review and update their tariffs to ensure that all tariffed services are described as accurately as possible.

Affect on Other Pending Litigation

• Tariffed-based claims in pending litigation will be resolved on the strength of the tariff language at issue.
  
  
• Even if a tariff does not strictly apply to certain traffic, however, local exchange carriers may still pursue compensation from long distance carriers for the reasonable cost of providing transport and termination service under a “quantum meruit”-type theory.

For more information, please contact Michael Hazzard or any of our attorneys in the Arent Fox Telecommunications Practice Group.