Full opinion text
ORDER ON INITIAL BRIEFS AND DEFENDANT’S MOTION FOR SUMMARY JUDGMENT GRITZNER, District Judge. This action is presently before the Court on the initial briefing of the parties (Clerk’s Nos. 50, 54) filed pursuant to this Court’s July 6, 2004, scheduling order. Qwest chose to pursue summary judgment as part of this process, and therefore the Court will analyze the parties arguments under the summary judgment standard. Attorneys for Plaintiff are Lawrence P. McLellan, James U. Troup, Tony S. Lee, James H. Lister, and David E. Lampp; attorneys for Defendant are Sheila K. Tip-ton, Dennis W. Johnson, Amy M. Omvig, and Roy E. Hoffinger. The parties did not request a hearing, and the Court finds a hearing is not necessary. Accordingly, the Court considers the issues presented in the initial briefings and in Qwest’s motion for summary judgment to be fully submitted and ready for ruling. PROCEDURAL HISTORY Plaintiff Iowa Network Services, Inc. (“INS”), initiated the present action against Defendant Qwest Corporation (“Qwest”) by filing a Complaint and Demand for Jury Trial with this Court on March 27, 2002. Qwest successfully moved to dismiss, only to have the Eighth Circuit, in a ruling dated April 7, 2004, reverse the dismissal and remand for further proceedings. On December 2, 2004, this Court filed an Order on Pending Motions (Clerk’s No. 82), granting Plaintiffs Motion to Amend and determining the Court’s review was not limited to “judicial review” of an agency decision, “as INS’ Complaint is an original action and not an appeal of the administrative agency decision requiring a deferential judicial review of that decision,” and as a result, the record is not limited to the administrative record. Order on Pending Motions at 31, 36-37. The parties subsequently filed the pending briefs/motions in order to clarify and narrow the issues for trial. In a somewhat convoluted briefing plan, both parties filed initial briefs on August 11, 2004, with Qwest’s brief being a motion for summary judgment. The parties were then given opportunity to resist/respond to the opposing parties’ brief, and again to reply to the filed response/resistance. After this Court granted Plaintiffs Motion to Amend in the Court’s Order on Pending Motions, the Court allowed the parties additional opportunity to “provide the Court with any necessary supplement to their prior briefing ... [with tjhese briefs ... limited to the new issues raised in the Amended Complaint, i.e., the self-help and quantum meruit counts.” Order on Pending Motions at 13. The parties completed this briefing, including responses, on December 27, 2004. The Court then took the matter under advisement, accepting notice of supplemental authority, including responses, on two occasions in March, 2005. The Court now considers the matter fully submitted. The purpose of this initial briefing was to allow the Court to become aware of the issues and rule on any initial matters, thereby narrowing the focus of the case and clarifying the issues as the action proceeds toward trial. Because Qwest chose to pursue summary judgment as part of this process, the Court will analyze the parties’ contentions under the summary judgment standard as set out below. BACKGROUND FACTS A. Preliminary Statement This case concerns intercarrier compensation for telephone calls (“traffic”) placed by customers of third-party commercial mobile radio service (“CMRS”) providers (i.e., “wireless carriers”) to end-user customers served by third-party Incumbent Local Exchange Carriers (“ILECs”) located in the same calling area. The calls at issue are (1) placed (i.e., “originated”) by end-user customers of third-party CMRS wireless carriers, (2) delivered by the wireless carriers to Qwest as an intermediate, or transiting, carrier, (3) transported approximately six blocks by Qwest and delivered to INS, a second intermediate, or transiting, carrier, (4) transported by INS to the ILECs serving the called parties, and (5) routed and delivered (i.e., “terminated”) by the ILECs to the premises of the called parties, the ILECs’ end-user customers. Qwest and INS are involved in the transport of these calls because the originating third-party wireless carriers and the terminating ILECs have elected to “interconnect” their networks “indirectly” to permit calls between their end-user customers. B. Plaintiffs Action In its Amended Complaint before this Court, INS states, “This is a collection action to recover unpaid charges for telecommunication services that Qwest has received and continues to receive while refusing to pay INS the lawful charges for these services.” INS then seeks payment under both federal and Iowa tariffs or, in the alternative, for unjust enrichment and implied contract/quantum meruit. INS has also brought a claim for self-help in violation of the Communications Act. Further, as part of its action, INS alleges the Iowa Utilities Board (“IUB” or “the Board”) issued a series of orders in docket number SPU-00-7 that violate federal law. Specifically, INS asserts the IUB misinterprets and misapplies various provisions of the Telecommunications Act, section 251 in particular. The Board’s determinations that are being challenged include the following: (a) wireless calls that are placed and received by subscribers of different carriers located in the same major trading area (“MTA”) are classified as “local”, and are not subject to long distance access charges, notwithstanding the fact that the originating and terminating carriers are interconnected indirectly through one or more additional carriers; (b) the termination of such calls is subject to the “reciprocal compensation” provisions of 47 U.S.C. § 251(b), as implemented through negotiated or arbitrated interconnection agreements between the originating and terminating carriers pursuant to 47 U.S.C. § 252; and (c) Qwest, which provides an indirect interconnection and transiting service between the CMRS provider and INS, is not responsible for payment to INS of access charges or other compensation for its transport or termination of calls placed by subscribers of the CMRS providers. Qwest has countered that the Board’s determinations do not violate federal law and must therefore be upheld and enforced by this Court. Qwest further contends INS cannot circumvent the result of the Board’s determinations through unilaterally filing a federal tariff purporting to dictate and govern the rates, terms, and conditions of the parties’ interconnection considering the Board ordered the parties to negotiate and, if necessary, arbitrate an interconnection agreement that would set forth and govern the rates, terms, and conditions of the parties’ relationship. Qwest contends the amended federal tariff is unauthorized and further that neither the federal nor state tariffs are applicable to the traffic at issue. C. Telecommunications in Iowa Due to the largely rural nature of Iowa, telecommunications service in much of the state has historically been provided by small independently owned companies located in and serving small designated geographic areas. These phone companies provide local telephone services, called “telephone exchange service”, within a defined geographic area known as the local exchange. Providing such services made these local phone companies “local exchange carriers” (“LECs”). Iowa is served by approximately 147 small local phone companies (“Independent Local Exchange Carriers” or “Independent LECs”) that provide local telephone service within specific geographic regions. These Independent LECs are generally located in the rural areas of the state and many, if not all, of these Iowa LECs were independently owned. Qwest, formerly known as U.S. West Communications, is the former Regional Bell Operating Company in the State of Iowa. Qwest, which provides local telephone services to customers throughout a fourteen-state area, is also an LEC, though not independently owned and not functioning in such capacity with respect to the traffic at issue here. See INS v. Qwest II, 363 F.3d at 694 n. 3. While differing greatly in size, Qwest and the independent LECs provide basically identical services, though Qwest also offers long distance services. Typically, LECs own the wires, computer switches, and other facilities necessary to provide telecommunications service to their subscribing customers. Access services or exchange services were available for purchase to competing carriers, thereby allowing purchasers to send or receive calls from a subscriber over the facilities owned and maintained by another LEC. The major benefit of purchasing access was that a company could reach specific phone customers by purchasing access to the LEC circuits without having to build facilities throughout an area served by another LEC. In 1987, most of the independent LECs then in existence in Iowa joined together to form Iowa Network Services (“INS”). The major benefit of this formation was that calls placed to or from a customer served by one of the companies in INS could now utilize INS’ network to reach whichever independent LEC the customer subscribed to through INS’ one centralized network. As was customary, INS charged access fees to use its network. These fees were set forth in tariffs on file with the Federal Communications Commission (“FCC”), which governed INS’ interstate services, and tariffs on file with the IUB, which governed INS’ intrastate services. Qwest is not a member of INS. As long as telephone calls were placed from traditional land-based wire connected phones, the system of ordering access to the INS network detailed above seemingly worked well. Technology had an impact on the development and popularity of wireless cellular phones, however, and as the popularity of wireless phones grew, so too did issues and disputes surrounding the access services and charges associated with accessing the INS network, as “[traditional notions of ‘local exchange areas’ do not fit neatly into this new world of wireless communications.” INS v. Qwest II, 363 F.3d at 687. For wireless communications, the country is divided into Major Trading Areas (MTAs) rather than local exchange areas. Thus, the local calling area for a cell phone user is determined by the cell phone user’s MTA. See 47 C.F.R. § 51.701(b)(2). The MTA for Iowa is the Des Moines MTA, which encompasses virtually all of Iowa and small portions of its neighboring states. IntraMTA traffic originates and terminates within the same MTA, while interMTA traffic originates in one MTA and terminates in another. Traditionally, when a call begins at a third-party wireless caller’s phone, the call is connected by radio signal to the wireless service provider. The call then travels over the wireless carrier’s network until it interconnects with Qwest’s network/facilities. Initially, Qwest identified for INS the number and type of trunks that Qwest would like INS to provide. Qwest’s requests for trunks from INS were set forth on written Access Service Requests (“ASRs”). Through these ASRs, Qwest ordered access trunks from INS. Qwest then negotiated with CMRS carriers to provide them with what it calls a “transit” service after the third-party CMRS provider’s calls interconnect with Qwest’s network. Qwest then transports the call from the subscriber of the CMRS wireless carrier on Qwest’s network to a point of interconnection with INS. INS then carries the call over its trunks to a point of interconnection with the independent LEC network serving the person being called. Qwest’s network collects both wireline traffic and wireless traffic and directs this traffic to INS. The wireline and wireless traffic coming from Qwest include both interstate and intrastate telephone calls. Qwest “commingles”, or mixes together, this wireline and wireless traffic before transmitting it to INS. Because of the commingling of calls by Qwest, the identity of the wireless or other carrier originating each call cannot be readily determined by INS’ equipment. Consequently, INS informed Qwest at the outset of this dispute in 1999, Qwest’s commingling of calls makes it infeasible for INS to directly bill the wireless carriers, which originate calls for INS’ transiting service. In short, as relevant to the present action, Qwest delivers to the INS network wireless phone calls originated by customers of third-party CMRS carriers who are calling subscribers of independent local exchange carriers, and whose calls originate and terminate in the same MTA. Until April 1999, Qwest paid the tariffed rates for taking the wireless-originated calls from non-Qwest customers and delivering them to the independent LECs via the INS network pursuant to either relevant INS intrastate tariffs filed with the IUB or INS interstate tariffs on file with the FCC. Since then, Qwest has refused to pay INS, and now INS seeks compensation, both past and future, for transiting and terminating the calls Qwest delivers to the INS network. D. The Telecommunications Act and FCC Implementing Decisions Congress enacted the Telecommunications Act (“the Act” or “the 1996 Act”) in February 1996, greatly amending the Communications Act of 1934. Prior to the Act, when a new company entered a geographic area, it routinely had to compete with an established LEC for customers in that particular service area. The Act was intended to enhance competition in the market for local telephone service, see AT & T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 371, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999), because “[e]ven after the 1980s breakup of the AT & T telecommunications monopoly, which, inter alia, divested AT & T of its local exchange carriers, local telephone service continued to be viewed and operated as a natural monopoly, with state utility boards, or commissions, giving one local telephone service provider exclusive coverage of a given geographic area.” INS v. Qwest II, 363 F.3d at 685. To break down barriers to competition in the local phone market, the Act requires all carriers to facilitate local competition by sharing existing networks and facilities with any new competitors. Id. at 685-86. The Act “is a unique hybrid of statutory and common law that divides decision making authority between the Federal Communications Commission (“FCC”), State commissions, and private parties.” Southwestern Bell Tel. Co. v. Connect Communications Corp., 72 F.Supp.2d 1043, 1044 (E.D.Ark.1999), rev’d on other grounds, 225 F.3d 942 (8th Cir.2000). The 1996 Act “thrust the federal government into the local telephone market regulatory arena, which has previously been the exclusive domain of the states.” INS v. Qwest II, 363 F.3d at 686 (citing MCI Telecomm. Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d at 497 (“The Act requires that local service, which has previously been operated as a monopoly overseen by the several states, be opened to competition according to standards established by federal law.”)). In practice, the Act may be characterized as schizoid, not in the psychological sense, but for the fact that it allows under some circumstances for the co-existence of disparates. See AT&T Corp. v. Iowa Utils. Bd., 525 U.S. at 397, 119 S.Ct. 721 (“It would be gross understatement to say that the 1996 Act is not a model of clarity. It is in many important respects a model of ambiguity or indeed even self-contradiction. That is most unfortunate for a piece of legislation that profoundly affects a crucial segment of the economy worth tens of billions of dollars.”). As the Eighth Circuit so presciently recognized, it is this “new relationship between the federal government (through the ... FCC), the federal courts, and the state commissions in regulating local telephone markets and the competing providers of telephone services in those markets [that] is at the heart of this case.” INS v. Qwest II, 363 F.3d at 686. The 1996 Act, subsequent determinations by the FCC, various cases resolved by United States District Courts, and indeed the briefs filed in this action, dramatically illustrate we labor in the early stages of a slow evolution. This new structure governs the telecommunications companies doing business in Iowa. As a general matter, but not without exception, the FCC regulates interstate telephone service, while the IUB oversees intrastate service. Compare 47 U.S.C. § 152 (2002) (defining FCC’s jurisdiction); see also 47 U.S.C. §§ 201-205 (indicating that the FCC has jurisdiction over interstate communication), with 47 U.S.C. § 253(b) (relating to State regulatory authority and discussing that nothing in this section shall affect the ability of a State to impose, on a competitively neutral basis and consistent with section 254 of this section, requirements necessary to preserve and advance universal service, and ensure the continued quality of telecommunications services); see also 47 U.S.C. § 261(b)-(c) (indicating Congressional intent with respect to existing and additional state requirements that “nothing in this part precludes a State from imposing requirements on a telecommunications carrier for intrastate services ... as long as the State’s requirements are not inconsistent with this part or the [FCC’s] regulations”). Pursuant to this regulatory framework, INS, as a common carrier of telephone services, must file tariffs with the FCC, setting forth a schedule of charges for the various interstate services it provides. See 47 U.S.C. § 203. For services provided in the state of Iowa, the IUB regulates the telecommunications industry and other public utilities through tariffs, or regulations of utility rates and services. See Teleconnect Co. v. U.S. West Communications, Inc., 508 N.W.2d 644, 646 (Iowa 1993); see also Iowa Code § 476.1 (delegating to the utilities board the authority to “regulate the rates and services of public utilities”). Every public utility doing business in Iowa, including INS, must “file with the board tariffs showing the rates and charges for its public utility services” under this regulatory scheme, and every public utility “shall keep copies of its tariffs open to public inspection under such rules as the board may prescribe”. Id. (citing Iowa Code § 476.4). Based on this structure, the Iowa Legislature implemented various rules and definitions found in the Iowa Administrative Code to guide the Board in regulating the telecommunications industry in Iowa. See, 199 Iowa Adm.Code 38.1(1). To achieve the purposes of promoting and fostering competition, the 1996 Act required all carriers “interconnect, directly or indirectly,” with other carriers. 47 U.S.C. § 251(a)(1). The Act also espoused interconnection agreements, requiring ILECs to agree, upon request, to provide interconnection to a competing carrier pursuant to the interconnection agreement approved by a state public utility commission rather than pursuant to a tariff. See 47 U.S.C. §§ 251(c)(1) and 252. The Act further imposes a duty on all LECs “to establish reciprocal compensation arrangements for the transport and termination of telecommunications” consisting of local traffic. See 47 U.S.C. § 251(b)(5). Thus, the Act’s goal of fostering competition is furthered by allowing carriers to compete with ILECs by utilizing the ILECs’ telecommunications networks, rather than forcing the competing carriers to build their own networks before serving a given area. The originating and terminating parties are then compensated according to the roles they play in the transport and termination of the traffic as provided in the interconnection agreement between the parties. Due to the complexity of the Telecommunications Act, the FCC created an order directing the implementation of the Act. See Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, Interconnection between Local Carriers and Commercial Mobile Radio Service Providers, First Report and Order, 1996 WL 452885, at *302-305, 11 FCC Rcd. 15499, at ¶¶ 1035-1045 (1996) (hereinafter “Local Competition Order ”). “The order was in response to the 1996 Act’s direction to the FCC to “establish regulations to implement the requirements’ of § 251, that is, the requirements to advance local competition.” ” INS v. Qwest II, 363 F.3d at 687 (quoting GTE South, Inc. v. Morrison, 199 F.3d 733, 737 (4th Cir.1999) (quoting 47 U.S.C. § 251(d)(1))). In the Local Competition Order, the FCC addressed the applicability of the 1996 Act to particular types of calls (including calls originated by end-user customers of CMRS providers), of the Act’s provisions regarding “transport” and “termination”, and the formation of interconnection agreements. Local Competition Order, at *302-305, 11 FCC Red. at ¶¶ 1035-1046. Relevant to this case, the Local Competition Order specifically addressed the billing of calls that a wireless carrier delivers to an LEC for termination, where the call both originates and terminates in a geographic area, i.e., the Major Trading Area. See id. On appeal from an earlier decision in this case, the Eighth Circuit observed the following regarding the conclusions of the Local Competition Order: The FCC decreed that “traffic to or from a CMRS network that originates and terminates within the same MTA is subject to transport and termination rates under section 251(b)(5) [requiring LECs to establish reciprocal compensation arrangements], rather than interstate and intrastate access charges.” [Local Competition Order, at *302, 11 FCC Red.] at 111036. The FCC also found that “the reciprocal compensation provisions of section 251(b)(5) for transport and termination of traffic do not apply to the transport or termination of interstate or intrastate interexchange traffic.” Id. *301, 11 F.C.C.R. ¶ 1034. “Interexchange traffic” is a term of art which correlates to what consumers would traditionally consider to be “long-distance” telephone service for which “toll charges” are incurred; an interex-change carrier (IXC) is a long-distance carrier who provides intrastate or interstate long-distance communications services between local exchange areas. INS v. Qwest II, 363 F.3d at 687-88. In early 1999, Qwest stopped paying access charges to INS for the intraMTA wireless traffic of third parties that Qwest delivered to the independent LECs via the INS network based on the FCC determinations made in the Local Competition Order. Qwest contends the FCC determined that traffic between an LEC and a CMRS provider which at the beginning of the call originates and terminates within the same MTA is local traffic and therefore not subject to access charges. See Local Competition Order, at *302-305, 11 FCC Red. at ¶¶ 1035-1046. E. Decisions of the IUB As delineated above, this case involves the manner telephone traffic is exchanged by small local rural telephone companies, also known as independent or rural ILECs, and wireless telephone companies through the telephone network owned and operated by Qwest. In April 1999, Qwest advised INS and' the terminating ILECs that, as a transiting carrier, it was not responsible for paying “access” charges or other compensation for their transport and termination of calls placed by customers of third-party CMRS providers. INS and the terminating ILECs disagreed with Qwest’s position. Consequently, on May 19, 2000, Qwest filed a petition with the IUB for a declaratory order regarding the exchange of local traffic between cellular telephone companies and other local service providers using Qwest’s facilities. The Board docketed the petition as a formal contested case proceeding pursuant to Iowa Code §§ 17A.12 and 476.3, and identified as Docket No. SPU-00-7. The Board granted motions to intervene filed by INS, the Rural Iowa Independent Telephone Association (“RU-TA”), the Iowa Telephone Association (“ITA”), several Iowa independent ILECs, and several CMRS providers. All parties involved in the IUB action had a chance to file initial briefs and reply briefs, and the Board held a “technical workshop”. Hearings presided over by all three Board members lasted several days and concluded on April 19, 2001. On November 26, 2001, the IUB issued a Proposed Decision and Order (hereinafter “IUB Proposed Decision and Order ”). Briefly, the Board’s decision concerns telephone traffic between a cellular telephone customer and a customer of an independent telephone company. Prior to the decision of the Board, if the cellular customer placed a call to a customer of an independent telephone company, the cellular companies delivered the call to Qwest. Qwest then transported the traffic to INS, a centralized equal access service provider. INS then carried the call to the independent telephone company for connection to the called customer. Qwest charged the wireless companies a transit fee for carrying the traffic. INS charged an access service fee to Qwest for carrying the traffic. The independent telephone company then assessed access charges to Qwest for terminating the call. In the proposed decision and order issued November 26, 2001, by the IUB, the Board’s Presiding Officer found that the cellular traffic at issue is local and that access charges do not apply to such traffic. This decision was made pursuant to the Board’s understanding of orders issued by the FCC. The IUB held cellular carriers are entitled to interconnect directly with the independent carriers on a bill-and-keep basis pursuant to Board and FCC rules. The decision further found Qwest is entitled to compensation for carrying the traffic but has no obligation to pay access or other terminating fees. The Board also concluded that the CMRS wireless carriers could use INS facilities for an indirect connection to the independent companies, but that INS is entitled to compensation for providing those services. The Board found it could not determine the appropriate rate for INS’ services on the record before it. As a result, the Board directed the parties to negotiate an interconnection agreement regarding these matters pursuant to the Telecommunications Act. Board arbitration was available to resolve any issues the parties were unable to resolve by negotiation. Some of the parties appealed the proposed decision to the Board. The Board affirmed the proposed decision by order issued March 18, 2002 (hereinafter “IUB Order Affirming Proposed Decision ”), thereby making the Board’s decision final. One party, ITA, filed an application for rehearing, which the Board denied by order issued May 3, 2002 (hereinafter “IUB Order Denying Rehearing ”). Another party, RUTA, then sought judicial review of the Board’s decision in the Polk County District Court (Iowa) pursuant to Iowa Code § 17A.19 but never served the petition on the Board. RUTA voluntarily dismissed that action on June 21, 2002, and subsequently brought filed a complaint in this Court, and that action has proceeded concurrently with the present action brought by INS. INS also opted not to appeal the final Board decision in the Iowa state courts, see Iowa Code §§ 476.13, 17A.19, or bring an action challenging the Board’s decision in federal court (like RU-TA). Instead, INS brought the present “rather ordinary collection action,” INS v. Qiuest II, 363 F.3d at 689, in this Court. Despite this being a “rather ordinary collection action”, the determinations of the IUB play a pivotal role. Relevant to the present action, the Board made the following determinations in its rulings: • Under the FCC’s orders, intraMTA traffic is classified as “local” and not subject to long distance “access” charges (IUB Proposed Decision, at 13, 21; IUB Order Affirming Proposed Decision, at 2); • With regard to the traffic at issue, Qwest is not acting as an “IXC” providing “long distance” service to end users with whom it has a billing relationship, but is providing an indirect connection for local traffic (IUB Proposed Decision, at 13); accordingly, Qwest “has no obligation to pay access or other termination fees” (IUB Order Affirming Proposed Decision, at 2); • When Qwest refused in 1999 to continue paying access charges for traffic originated by third-party CMRS providers, it put INS and the terminating ILECs “on notice that it no longer believed it was ordering” access services (IUB Proposed Decision, at 37-38); • Rates and other terms applicable to such arrangements, including proposals that transit and other traffic should be delivered over “separate” trunks, and “the means by which interMTA [i.e., long distance] calls should be distinguished [from] intraMTA [i.e., local] calls” are “good examples” of the kinds of issues that can best be addressed through the Act’s negotiation and arbitration process (IUB Proposed Decision, at 30; IUB Order Affirming Proposed Decision, at 20); • The results of the negotiations (and arbitrations, if necessary) would relate back to April 1999 (IUB Proposed Decision, at 38). These issues, while not directly challenged in the present case (unlike the separate but related action filed by RUTA against the IUB directly challenging the Board’s determinations), are relevant and potentially dispositive to the outcome of this case. Prior to engaging in an analysis of the issues presented to the Court by the parties, the Court finds the IUB exercised the proper authority in rendering the decisions associated with Docket No. SPU-00-7. While these rulings are not preclusive, see INS v. Qwest II, 363 F.3d at 693 (holding “the district court erred in giving preclusive effect to the IUB’s determination”), the Court finds the Board’s determinations extremely persuasive given the Board’s province and experience resides in regulation of the telecommunications industry. Consequently, the Court gives respectful consideration to the Board’s determinations so far as the Board was acting within its authority and its decisions conform with federal law. F. INS’Tariffs While the IUB determinations are important but corollary issues in the present action, this Court must ultimately “decide for itself whether the traffic at issue is subject to access charges pursuant to INS’s tariffs.” INS v. Qwest II, 363 F.3d at 695. At issue are three tariffs filed by INS. The rates, terms, and conditions governing INS’ access services for interstate wireline calls are set forth in a tariff INS filed with the FCC, known as Tariff F.C.C. No. 1 (“FCC Tariff’). The FCC Tariff has governed the INS-Qwest relationship with respect to interstate wireline calls from its inception on April 26, 1989, and, INS argues, continues to do so. The FCC Tariff was amended on November 11, 2000 (“Amended FCC Tariff’). The rates, terms, and conditions governing INS’ access services from November 11, 2000, to the present for both interstate and intrastate calls placed by a CMRS subscriber are set forth in the Amended FCC Tariff. The rates, terms, and conditions governing INS’ access services for non-wireless or wireline intrastate calls are set forth in a tariff filed with the Iowa Utilities Board, known as Iowa Tariff No. 1 (“Iowa Tariff’). The rates, terms and conditions governing INS’ access service billed to Qwest before November 11, 2000, for intrastate wireless calls are also set forth in the Iowa Tariff. According to INS, the rates, terms, and conditions in the FCC Tariff, the Amended FCC Tariff, and the Iowa Tariff are binding on Qwest. As tariffs approved by the appropriate regulators, the FCC Tariff, the Amended FCC Tariff, and the Iowa Tariff have the force and effect of law and are not ordinary contracts. G. The Present Action In a previous ruling, this Court held the following with respect to the scope of review in this case: The Court concludes the evidence in this case should not be limited to the administrative agency record. INS did file an action seeking enforcement of its tariffs, an original action it is entitled to bring and have heard de novo, especially considering the Board did not even deal with the tariff issue in its proceedings. Moreover, there are other claims in the INS Complaint that also warrant a trial de novo. As evidenced by INS’ list of open issues, there are many factual and legal determinations before this Court that were not before the Board. The Eighth Circuit, in finding the Board’s determinations do not have a preclusive effect on this Court, has ordered this Court to “decide for itself’ the issues in this case. This Court will be limited in its ability to do this, based on the issues in the present action, if the Court is constrained to consider only the material in the Board’s administrative record. In short, while the ultimate validity of the IUB decision is central to the matters now before this Court, the present action involves much more than a judicial review of the IUB’s decision. It is not merely an appeal clothed as an original action even though the Court may be required to review certain aspects of the Board’s decision. Accordingly, the Court will deny Qwest’s motion to limit the Court’s review to the administrative record of the IUB. Order on Pending Motion, at 31. Accordingly, the Court must look to and analyze the decisions of the IUB as it relates to the tariff claims brought by INS. In so doing, the Court must analyze whether the decisions of the IUB violate federal law, and whether INS’ tariffs are valid and binding on the traffic at issue. ANALYSIS Review and consideration of the issues in this case involves an unresolved area of the law, complicated legal issues and arguments that dwell substantially on interpretation of and extrapolation on the 1996 Act, as well as prior law, existing opinions and clarifications by the FCC, administrative rulemaking still on the horizon, and varying court decisions. Accordingly, the Court is compelled to provide significant detail with regard to the arguments of the parties. While this necessarily creates a lengthy order, no more condensed method seems adequate to the task of demonstrating both the nature of the dispute and the Court’s resolution of that dispute. A. Standard for Summary Judgment “[C]laims lacking merit may be dealt with through summary judgment under Rule 56.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). To avoid summary judgment, the non-moving party must make a sufficient showing on every essential element of its case for which it has the burden of proof at trial. See Celotex v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Wilson v. Southwestern Bell Tel. Co., 55 F.3d 399, 405 (8th Cir.1995). Relevant to the present action, “ ‘[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.’ ” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The nonmoving party must go beyond the pleadings, and by affidavits, depositions, answers to interrogatories, and admissions on file, designate “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. 2548. The Court must view all of the facts in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences that can be drawn from the facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citations omitted); Rifkin v. McDonnell Douglas Corp., 78 F.3d 1277, 1280 (8th Cir.1996); Marts v. Xerox, Inc., 77 F.3d 1109, 1112 (8th Cir.1996). While the quantum of proof that must be produced to avoid summary judgment is not precisely measurable, it must be enough evidence for a reasonable jury to return a verdict in favor of the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). B. Compensation Sought As relevant to this case, there are two types of charges which one carrier can extract from another for the provision of telecommunication services. The first deals with local telephone service and is referred to as .reciprocal compensation. “ ‘[Reciprocal compensation’ means that when a customer of one [LEC] calls a customer of a different [LEC] who is within the same local calling area, the first carrier pays the second carrier for completing, or ‘terminating,’ the call.” Pac. Bell v. Pac-West Telecomm., Inc., 325 F.3d 1114, 1119-20 (9th Cir.2003). As stated by the Eighth Circuit, “[u]nder the 1996 Act, the amount an ILEC can charge for allowing a competitor to use its infrastructure to deliver a local call is to be determined by an interconnection agreement negotiated (or imposed by arbitration) between the ILEC and the interconnecting carrier that has been approved by the state commission.” INS v. Qwest II, 363 F.3d at 686 (citing 47 U.S.C. §§ 251(c)(1); 252(e)). The second type of charge at issue is an “access” fee charged by common carriers for use in carrying long-distance telecommunications via their infrastructure, otherwise referred to as toll services. See id. (citing 47 U.S.C. §§ 201 (requiring common carriers engaged in interstate communication to furnish communication service upon request, to establish physical connections with other carriers, and to establish through routes), and 202 (prohibiting discrimination related to the use of common carrier lines of communication)). These charges are set by the common carriers in tariffs filed with either the FCC or the appropriate state commission. See 47 U.S.C. § 203(a). In the present action, INS asserts it is owed payment of access charges pursuant to the tariffs it has filed with the FCC and the IUB. Meanwhile, Qwest asserts the appropriate compensation mechanism under the 1996 Act and the FCC’s pre-1996 Act decisions is reciprocal compensation in negotiated (or arbitrated) interconnection agreements, not access charges via tariffs, and that Qwest is not required to pay such compensation pursuant to the decisions of the IUB. C. The Parties and the Traffic at Issue 1. Type of Traffic a. “Local” versus “Long Distance” Traffic In its Local Competition Order, the FCC had to determine which telecommunications are subject to “reciprocal compensation” for “transport and termination” under section 251(b)(5). In so doing, the FCC distinguished between transport and termination of “local” calls, and that for “long-distance” calls, the latter having been historically subject to access charges. Local Competition Order, at *302-305, 11 FCC Red. at ¶¶ 1035-1046. For purposes of regulation, a call is treated as “local” if it originated and terminates in the same local calling area; a call is treated as “long distance” if it terminates in a local calling area different than the one in which it originates. See Competitive Telecomms. Ass’n v. FCC, 117 F.3d 1068, 1072 n. 3 (8th Cir.1997) (“CompTel ”). The FCC concluded that “section 251(b)(5) reciprocal compensation,” and not “access charges,” would apply “to traffic that originates and terminates within a local calling area, as defined” in a subsequent paragraph. Local Competition Order, at *302-305, 11 FCC Rcd. at ¶¶ 1035-1046. In defining the local service area for calls to or from a CMRS network for purposes of applying sections 251 and 252, the FCC determined that the MTA serves as the most appropriate definition for local service area for CMRS traffic. Id. at *302, 11 FCC Rcd. at ¶ 1036. “Accordingly, traffic to or form a CMRS network that originates and terminates within the same MTA is subject to transport and termination rates under section 251(b)(5), rather than interstate and intrastate access charges.” Id. In contrast, “traffic originating or terminating outside of the applicable local area would be subject to interstate and intrastate access charges” payable by the long distance carriers using the LECs’ networks to provide the “end to end” service that they “sell as [their] product to [their] customers.” Southwestern Bell Tel. Co. v. FCC, 153 F.3d at 542 n. 9. To summarize, the FCC’s Local Competition Order provides that “traffic to and from a CMRS network that originates and terminates with the same MTA” is “local” traffic, and not long distance traffic subject to access charges. Qwest argues that this is so regardless of whether one or more intermediate or transiting carriers provide a portion of the transport of the call from the network of the CMRS provider to the network of the terminating LEC. According to Qwest, under the FCC decisions, the relevant facts are the geographic locations of the end-user customers placing and receiving the calls, not the method of interconnection chosen by the originating and terminating carriers. In its decision, the Board explained that this determination means Qwest is not acting as an IXC providing long distance service to end users when the calling and called parties are located in the same MTA and the caller is served by a third-party CMRS provider. IUB Proposed Decision, at 13. Instead, Qwest is “providing an indirect connection for local traffic.” Id. (emphasis added). Based on this determination, the IUB held that Qwest “has no obligation to pay access or other termination fees.” Order Affirming Proposed Decision, at 2. Qwest asserts that all federal courts to consider this issue have ruled, like the Board, that indirect connection through a transiting carrier does not convert intraMTA “local” calls into “long distance” calls for which the transiting or any other carrier must pay “access” charges to the terminating carrier. For example, in 3 Rivers Telephone Cooperative, Inc. v. U.S. West Communications, Inc., the court reasoned that the FCC’s Local Competition Order “makes no distinction between such traffic [i.e., traffic delivered over a direct connection] and traffic that flows between a CMRS provider and LEC in the same MTA that also happens to transit another carrier’s facilities prior to termination.” 3 Rivers Tel. Coop., Inc. v. U.S. West Communications, Inc., 2003 U.S. Dist. LEXIS 24871, at *67 (D.Mt.2003), accord. Union Tel. Co. v. Qwest Corp., slip op., No. 02-CV-209B, at 26, 34 (D.Wyo. May 11, 2004); see also Atlas Tel. Co. v. Corp. Comm’n of Okla., 309 F.Supp.2d 1299, 1310 (W.D.Okla.2004) (finding, consistent with the determination of the Oklahoma Commission decision being reviewed, that the FCC’s classification of “mobile intraMTA traffic” as “local” as opposed to “toll” (i.e., interexchange or long distance) traffic applies “without regard to whether those calls are delivered via an intermediate carrier”). Accordingly, the 3 Rivers court held that “Qwest is not liable to plaintiffs for terminating access charges on CMRS (wireless) traffic that both originates and terminates in the same MTA.” Id. at *68-69. Qwest further asserts that the FCC’s own decisions foreclose any doubt that indirect interconnection does not convert intraMTA (i.e., “local”) calls into “long distance” calls or otherwise justify the imposition of a compensation obligation for such calls on a transiting carrier. Qwest points out that in Paragraph 1039 of the Local Competition Order the FCC acknowledges the existence of indirect interconnection between originating and termination carriers through “facilities provided by alternative carriers,” but nowhere held such an arrangement converted a “local” call into a “long distance” call or allowed other carriers to impose a compensation obligation on the transiting carrier. See Local Competition Order, at *302-305, 11 FCC Rcd. at ¶¶ 1035-1046. Additionally, in its Intercarrier Compensation NPRM, the FCC confirmed that use of a transit carrier for intraMTA calls is a form of “local” connection. NPRM, Developing a Unified Intercarrier Compensation Regime, 2001 WL 455872, at *25, 16 FCC Rcd. 9610, at ¶ 91 (2001) (“Intercarrier Compensation NPRM”). In addition, Qwest argues that the FCC held specifically that the “cost causation principles” underlying its intercarrier compensation rules “allocate” the cost of delivering traffic to the carriers responsible for the traffic and, ultimately, their customers. Texcom Inc. v. Bell Atlantic Corp., 2001 WL 1504282, at *2, 16 FCC Rcd. 21493, at ¶ 6 (2001) (“Texcom Order ”); see also Texcom Inc. v. Bell Atlantic Corp., 2002 WL 459938, at *2, 17 FCC Rcd. 6275, at ¶ 4 (2002) (“Texcom Reconsideration Order ”) (citing 47 U.S.C. § 251(b)(5), and 47 C.F.R. § 51.702). Thus, where a transiting carrier is involved, the originating third-party carrier pays for the cost of delivering their calls to the transiting carrier, while the terminating carrier pays for the cost of transporting that traffic from the transiting carrier’s network to its network. Texcom Order, at *2, 16 FCC Rcd. at ¶ 6; Texcom Reconsideration Order, at *2, 17 FCC Rcd. at ¶ 4. The terminating carrier may then “seek reimbursement of these costs from originating carriers through reciprocal compensation.” Texcom Reconsideration Order, at *2, 17 FCC Rcd. at ¶ 4 (citing 47 U.S.C. § 251(b)(5), and 47 C.F.R. § 51.702). Thus, transiting carriers bear no responsibility for compensating other carriers, for they lack relationships with either the calling or called parties. Qwest asserts that this scheme is particularly manageable and sensible here because of the affiliation between INS and the terminating ILECs, and because, as the Board explained, “connecting the independent LECs to other telecommunications carriers in an efficient manner is the very reason for INS’s existence.” IUB Order Denying Application for Rehearing, at 12. Finally, Qwest contends that the FCC’s Common Carrier Bureau, acting on behalf of the FCC in place of a state commission, has stated that federal law does not require a transiting carrier over its objection to compensate another carrier for its transport and termination of calls originated by third-party carriers under the theory that the calls are the transiting carrier’s “own traffic”, see Petition of WorldCom Inc. Pursuant to Section 252(e)(5) of the Communications Act for Preemption of the Jurisdiction of the Virginia State Corporation Commission Regarding Interconnection Disputes tuith Verizon Virginia Inc., and for Expedited Arbitration, Memorandum Opinion and Order, 2002 WL 1576912, at *154, 17 FCC Rcd. 27039, at ¶ 541 (2002) (“Verizon Virginia Order ”); see also id. at *34, 36, 17 FCC Rcd. at ¶¶ 114, 119, and that there is no evidence in the Board’s record that Qwest refused to provide to terminating LECs information received by Qwest from the originating CMRS providers. See Petition of Cavalier Telephone LLC Pursuant to Section 252(e)(5) of the Communications Act for Preemption of the Jurisdiction of the Virginia State Corp. Commission Regarding Interconnection Disputes with Verizon Virginia, Inc., and for Arbitration, 2003 WL 22939121, at *12, 18 FCC Rcd. 25887, at ¶ 42 (FCC Wireline Competition Bureau 2003) (“Cavalier”). Based on these decisions, Qwest argues that transiting carriers have no compensation obligations with respect to the transport and termination of intraMTA wireless or other local calls originated by end-user customers of third-party carriers under the Act. INS, on the other hand, argues that Qwest improperly relies on the “local” terminology to support its argument that intermediary carriers are barred from collecting access charges for transiting in-traMTA traffic. INS contends the FCC has abandoned the “local” terminology as it is “not accurate to simply describe intraMTA calls (which can cover very long distances) as local.” See Intercarrier Compensation for ISP-Bound Traffic, Implementation of the Local Competition Provisions of the Telecommunications Provisions in the Telecommunications Act of 1996, 2001 WL 455869, at *15, 16 FCC Rcd. 9151, at ¶45 (2001) (“ISP Remand Order ”), remanded on other grounds, 288 F.3d 429 (D.C.Cir.2002) (reasoning that eliminating the category of “local” traffic better reflects the role of section 251(g) in distinguishing between charges that are governed by reciprocal compensation rules and charges that are governed by the access rules). Qwest counters that the Board considered and correctly rejected INS’ contention that the FCC has abandoned the “local” terminology for purposes of inter-carrier compensation in general and wireless traffic in particular, and thereby confirmed CMRS-originated traffic that had previously been subject to terminating access charges was unaffected by the 1996 Act and the Local Competition Order. IUB Order Affirming Proposed Decision, at 5-6. As the Board explained, the FCC “clearly states” in the ISP Remand Order that the ISP data traffic analysis “does not apply to CMRS traffic.” Id. (citing ISP Remand Order, at *16, 16 FCC Rcd. at ¶47 (“[T]he analysis we adopt in this Order, that section 251(g) limits the scope of section 251(b)(5), does not affect the application of the latter section to LEC-CMRS interconnection.”)). Indeed, Qwest argues that the INS’ argument is further refuted by the fact that, on the very same day it issued the ISP Remand Order, the FCC also released its Intercarrier Compensation NPRM, which reiterated that access charges do not apply to “the transport and termination of local traffic.” Intercarrier Compensation NPRM, 1996 WL 452885, 11 FCC Rcd. at ¶ 6. The Court finds the Board’s determinations that the traffic at issue here is “local” traffic and not long distance is supported by the 1996 Act and FCC decisions implementing and explaining the Act. The Board interpreted the FCC’s definition of “local” traffic to include all traffic that both originates and terminates within the same MTA, which is the type of traffic in dispute. The Board concluded that this definition holds regardless of whether transiting carriers are involved in the transportation of the call from the originating customer to the end user being called. The Court finds these determinations are wholly reasonable and in accordance with the current state of the law governing telecommunications. In other words, the IUB did not violate federal law in rendering decision within its jurisdiction that the traffic from third-party CMRS providers that Qwest carries (as a transiting carrier) and transports to INS’ network is “local” traffic under the 1996 Act and as defined by the FCC in its Local Competition Order. As will become apparent, the Court’s conclusion on this matter contributes greatly to the resolution of a myriad of issues argued in this complex case. b. IntraMTA Versus InterMTA and Wireless Versus Wireline INS contends that Qwest, as the summary judgment proponent, has not carried its burden of proof in establishing that its nonpayment is for intraMTA calls. INS acknowledges that there are intraMTA wireless-originated calls at issue in this ease, but the relative proportion of those calls compared to other calls delivered by Qwest for which Qwest has not paid is unknown. Indeed, INS asserts Qwest has provided no evidence or records to support its contention that all of the wireless calls involved in this case are intraMTA calls. INS asserts this question of material fact precludes grant of summary judgment as the success of Qwest’s entire argument is premised on all of the calls being intraM-TA. While INS is seeking compensation from Qwest for each of the calls that Qwest delivered to INS for completion, the proportion of the unpaid calls that are wireless-originated as opposed to originating on the Qwest network or that of another landline carrier is not established on the record before the Court. According to INS, Qwest simply assumes without evidence that all the calls for which it did not pay are wireless originated. In fact, INS points out that in a case pending in the U.S. District Court for the Northern District of Iowa, Qwest has recently alleged that some of the calls it delivered to INS, which forwarded the calls to an independent LEC, were in fact originated by land-line long distance carriers. See Order, Northwest Iowa Tel. Co. v. Qwest, Case No. 04-4053 (Dec. 17, 2004). As in that case, INS asserts discovery is needed to determine the true nature of the calls at issue. The Court finds the exact nature of each of the calls at issue is not dispositive of Qwest’s motion for summary judgment. While a factual dispute is apparent, this does not generate a material issue of fact if the law requires INS to proceed through the process of negotiation and arbitration, rather than pursuant to tariffs or equitable remedies, before a legally supportable claim may be advanced in this Court. 2. Regulatory Classification of Parties a. INS INS has claimed before the Board, this Court, and the Eighth Circuit that it is not an ILEC, and that, as a result, the Section 251(c)(1) duty to negotiate and the Section 252 negotiation/arbitration process do not apply to it. INS then contends that consequently, the Board’s decision that it should seek compensation in the negotiations between the originating CMRS providers and the terminating ILECs is unlawful. Qwest argues that INS is mistaken, as its regulatory classification is not relevant to the lawfulness of the decisions in the Board’s proceeding. The Court finds the regulatory classification of INS is not pertinent given this Court’s essential determination of the validity of the IUB decision. In other words, the Court finds it need not resolve whether INS is acting as an LEC with respect to the traffic at issue. As the Court concludes above, the Board determined the traffic at issue is local and strongly suggested the parties, including INS, engage in negotiations to resolve the disputes concerning the traffic at issue. As a result of this ruling, INS’ regulatory classification becomes irrelevant for purposes of engaging in negotiations pursuant to the Board’s lawful orders. b. Qwest The regulatory classification of Qwest is, however, pertinent as there exists within the reciprocal compensation rules an exception for IXCs. Thus, to determine whether Qwest is liable for access charges under the IXC exception to the intraMTA rules, it is necessary to decide whether Qwest is acting as an “incumbent LEC” or as an “interexchange carrier” in the circumstances giving rise to this action. INS points out that the Eighth Circuit held in its order remanding this case that Qwest is not acting as an incumbent LEC with respect to the calls at issue. INS v. Qwest II, 363 F.3d at 693 n. 3. Instead, INS posits Qwest is acting as an IXC. It is undisputed that the calls at issue travel state-wide and so cross the boundaries of local exchanges, meaning they are interexchange. INS v. Qwest I, 2002 WL 31296324, at *1-3. Further, INS asserts Qwest acted in a manner indistinguishable from any other IXC purchasing access service in the following manner: (1) Qwest’s facilities are landline as opposed to wireless, (2) Qwest delivered written “Access Service Requests” to INS to establish the trunks designated for interchange carriers over which Qwest delivers the calls at issue, (3) those trunks are the same trunks used to carry ordinary wireline-to-wireline long distance calls, (4) those trunks are the same trunks for which Qwest has paid access charges to INS in the past, and (5) Qwest makes no effort to distinguish or separate intraMTA wireless-originated calls from other long distance traffic. Indeed, Qwest paid for these calls pursuant to access tariffs for many years. See INS v. Qwest II, 363 F.3d at 684; see also CompTel, 117 F.3d at 1072 (recognizing that IXCs are the purchasers of access service). The IUB recognized the IXC exception but construed it as being limited to IXCs that directly serve the end-user customers, thereby excluding IXCs hired by other carriers. The Board then determined Qwest is not acting as an IXC providing long distance service to end users with whom it has a billing relationship, Proposed Decision and Order, at 13, but is providing an indirect connection for calls placed by end-user customers of other carriers. Consequently, the Board held that “Qwest has no obligation” to pay INS and its ILEC owners “access” charges or other fees for the transport and termination of such calls. IUB Order Affirming Proposed Decision, at 2. INS asserts the IUB misconstrued federal law on this issue. INS contends that, constructively, the IUB read the term “IXC” as limited to IXCs acting in a retail capacity. According to INS, the plain definition of “IXC” under federal law is not limited to retail IXCs, but includes IXCs providing service to other carriers. See AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352, 1353 (Fed.Cir.1999) (describing provision of service by “facilities-based IXCs to other carriers”); Southwestern Bell Tel. Co. v. FCC, 116 F.3d 593, 595 (D.C.Cir.1997) (same); Bell Atlantic-Delaware, Inc. v. Frontier Communications Services, Inc., 2001 WL 327619, at *1-2, 16 FCC Rcd. 8112, ¶ 3 (2001); Application of WorldCom, Inc. and MCI Communications Corp. for Transfer of Control, 1998 WL 611053, at *11, 13, 14, 14, 15, 21, and n. 223, 13 FCC Rcd. 18025, ¶¶ 34, 44, 45, 48, 50, 70, and n. 223 (1997) (‘ Application of WorldCom ”) (discussing in detail how IXCs provide both wholesale and retail long distance service). Thus, INS asserts that both retail and wholesale IXCs purchase access service. See Southwestern Bell Tel. Co. v. FCC, 116 F.3d at 595. INS argues that providing capacity that other carriers may use in routing a call, as Qwest does in the present case in carrying calls from the CMRS providers networks to the INS network, is a basic, wholesale long distance function, see Application of WorldCom, at *15, 13 FCC Rcd. at ¶ 50; AT&T Corp. v. American Cash Card Corp., 184 F.R.D. 515, 518 (S.D.N.Y.1999), and that the 3 Rivers court, on remand from the Ninth Circuit, rejected Qwest’s arguments that liability for access charges was limited to situations in which Qwest was acting in a retail capacity. 3 Rivers Tel. Coop., 2003 U.S. Dist. LEXIS 24871, at *44. INS further asserts that nothing in the Local Competition Order alters the normal definition of IXC as to limit the term to IXC acting in a retail capacity and excluding IXCs hired by other carriers. To the contrary, INS argues that limiting the IXC exception to retail IXCs would effectively eviscerate the exception because retail IXCs are rarely if ever involved in carrying wireless-originated calls. The FCC acknowledged contemporaneously with issuing its Local Competition Order that Congress, in another provision of the Telecommunications Act of 1996, exempted wireless carriers from the duty imposed on landline LECs to allow their end users to select a retail IXC of their choice. See In the Matter of Interconnection and Resale Obligations Pertaining to Commercial Mobile Radio Service, 1996 WL 740758, 11 FCC Rcd. 12456, at ¶ 3 (1996) (recognizing that because of Section 332(c)(8), CMRS carriers are not required to let the consumer choose a long distance carrier); see also 47 U.S.C. § 332(c)(8). Thus, according to INS, given this freedom, wireless carriers that desire assistance in carrying calls route them to wholesale IXCs, thereby keeping control of the relationship with the end user. Moreover, INS asserts that, because of the issue in the present case, it makes far more sense to evaluate whether Qwest acted as IXC based on its relationship with INS than on the fortuity of whether an end user or another carrier hired Qwest. INS points out that Qwest submitted “Access Service Requests” to INS, sent traffic over long d