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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
STARPOWER COMMUNICATIONS, LLC, )
)
Complainant, )
)
v. ) File No. EB-00-MD-19
)
VERIZON SOUTH INC., )
)
Respondent. )
)
)
STARPOWER COMMUNICATIONS, LLC, )
)
Complainant, )
)
v. ) File No. EB-00-MD-20
)
VERIZON VIRGINIA INC., )
)
Respondent. )
MEMORANDUM OPINION AND ORDER
Adopted: March 28, 2002 Released: April 8, 2002
By the Commission: Commissioner Martin approving in part,
dissenting in part, and issuing a statement.
I. INTRODUCTION
1. In this order, pursuant to sections 208 and 252(e)(5)
of the Communications Act of 1934, as amended (``Act''),1 we deny
a formal complaint that Starpower Communications, LLC
(``Starpower'') filed against Verizon Virginia Inc. (``Verizon
Virginia''), and we grant a formal complaint that Starpower filed
against Verizon South Inc. (``Verizon South'').2 In its
complaints, Starpower seeks to recover, pursuant to three
interconnection agreements with Verizon, payment of reciprocal
compensation for the delivery of traffic bound for Internet
service providers (``ISPs''). We conclude that the two
interconnection agreements between Starpower and Verizon Virginia
do not obligate Verizon Virginia to pay reciprocal compensation
for ISP-bound traffic. We reach the contrary conclusion (i.e.,
that reciprocal compensation for ISP-bound traffic must be paid)
with respect to the interconnection agreement between Starpower
and Verizon South.
II. BACKGROUND
II.A. The Parties and the Interconnection Agreements
2. Starpower is licensed to provide local exchange
services in Virginia.3 Verizon Virginia and Verizon South are
incumbent local exchange carriers (``ILECs'') also licensed to
provide local exchange services in Virginia.4
3. Starpower and Verizon interconnect their networks to
enable an end user subscribing to Starpower's local exchange
service to place calls to and receive calls from end users
subscribing to Verizon's local exchange service.5 Toward this
end, Starpower entered into two interconnection agreements with
Verizon Virginia and an interconnection agreement with Verizon
South.6 We describe below the relevant terms of each agreement.
II.A.1. Starpower-Verizon Virginia Agreements
II.A.1.a. The First Starpower-Verizon
Virginia Agreement
4. On July 17, 1996, Verizon Virginia executed an
interconnection agreement (``MFS-Verizon Virginia Agreement'')
with MFS Intelnet of Virginia, Inc. pursuant to section 252(a) of
the Act.7 The MFS-Verizon Virginia Agreement was filed with, and
approved by, the Virginia State Corporation Commission
(``Virginia SCC'') on October 11, 1996.8
5. By letter dated February 4, 1998, and pursuant to
section 252(i) of the Act,9 Starpower notified Verizon Virginia
that it elected to obtain interconnection, services, and network
elements upon the same terms and conditions as those provided in
the MFS-Verizon Virginia Agreement.10 On February 19, 1998,
Verizon Virginia provided Starpower with a draft interconnection
agreement based upon the MFS-Verizon Virginia Agreement.11 At
that time, Verizon Virginia expressed its opinion that the
``reciprocal compensation provisions set forth in the [MFS-
Verizon Virginia Agreement] . . . do not apply to Internet-bound
traffic because such traffic is not intraLATA traffic.''12 In a
March 4, 1998 memorandum from Starpower to Verizon Virginia,
Starpower disagreed with Verizon Virginia's interpretation of the
reciprocal compensation provisions of the MFS-Verizon Virginia
Agreement.13 Despite this dispute, in March 1998, Starpower and
Verizon Virginia executed an interconnection agreement - the
First Starpower-Verizon Virginia Agreement - based on the terms
of the MFS-Verizon Virginia Agreement.14 The First Starpower-
Verizon Virginia Agreement was filed with, and approved by, the
Virginia SCC on June 17, 1998.15
6. Section 1.61 of the First Starpower-Verizon Virginia
Agreement defines ``Reciprocal Compensation'' in the following
manner:
As described in the Act and refers to the
payment arrangements that recover costs
incurred for the transport and termination of
Local Traffic originating on one Party's
network and terminating on the other Party's
network.16
According to the First Starpower-Verizon Virginia Agreement, ``As
Described in the Act'' means ``as described in or required by the
Act and as from time to time interpreted in the duly authorized
rules and regulations of the FCC or the [Virginia SCC].''17
``Local Traffic'' is ``traffic that is originated by a Customer
of one Party on that Party's network and terminates to a
Customer of the other Party on that other Party's network, within
a given local calling area, or expanded area service (`EAS')
area, as defined in [Verizon Virginia's] effective Customer
tariffs . . . .''18 This language closely resembles the language
that the Commission used in April 1996 to describe the type of
traffic that was likely subject to reciprocal compensation under
section 251(b)(5) of the Act:19 ``The statutory provision
appears at least to encompass telecommunications traffic that
originates on the network of one LEC and terminates on the
network of a competing LEC in the same local service area . . .
.''20
7. Section 5.7 of the First Starpower-Verizon Virginia
Agreement delineates the parties' reciprocal compensation
obligations as follows:
The Parties shall compensate each other for
transport and termination of Local Traffic in
an equal and symmetrical manner at the rates
provided in the Detailed Schedule of Itemized
Charges (Exhibit A hereto) or, if not set
forth therein, in the applicable Tariff(s) of
the terminating party, as the case may be . .
. .
The Reciprocal Compensation arrangements set
forth in this Agreement are not applicable to
Switched Exchange Access Service. All
Switched Exchange Access Service and all Toll
Traffic shall continue to be governed by the
terms and conditions of the applicable
federal and state Tariffs.
* * *
The designation of Traffic as Local or Toll
for purposes of compensation shall be based
on the actual originating and terminating
points of the complete end-to-end call,
regardless of the carriers involved in
carrying any segment of the call.21
These provisions are the only ones in the First Starpower-Verizon
Virginia Agreement governing compensation for Local Traffic,22
and the word ``termination'' is undefined.23
8. After the First Starpower-Verizon Virginia Agreement
took effect, the parties exchanged traffic.24 Starpower
subsequently submitted invoices to Verizon Virginia seeking,
among other things, compensation for transporting and terminating
calls originating with Verizon Virginia's customers and delivered
to Starpower's customers, including calls to ISPs and calls
accessing the Internet through ISPs served by Starpower.25
Starpower asserts that such ISP-bound calls from Verizon Virginia
customers constitute ``Local Traffic'' within the meaning of the
First Starpower-Verizon Virginia Agreement.26 Verizon Virginia
disagrees, and has paid only a portion of the amounts billed by
Starpower.27
9. By letter dated April 1, 1999, Verizon Virginia
notified Starpower that it had elected to terminate the First
Starpower-Verizon Virginia Agreement, according to the
agreement's terms.28 Following Verizon Virginia's notice, the
First Starpower-Verizon Virginia Agreement terminated as of July
1, 1999, although the agreement continued in effect pending
execution or adoption of a new agreement.29
II.A.1.b. The Second Starpower-Verizon
Virginia Agreement
10. On June 16, 1997, Verizon Virginia entered into an
interconnection agreement (``MCImetro-Verizon Virginia
Agreement'') with MCImetro Access Transmission Services of
Virginia, Inc. pursuant to section 252(a) of the Act.30 The
MCImetro-Verizon Virginia Agreement was filed with, and approved
by, the Virginia SCC on July 16, 1997.31
11. By letter dated June 10, 1999, Starpower notified
Verizon Virginia that, following expiration of the First
Starpower-Verizon Virginia Agreement, Starpower wished to adopt
the MCImetro-Verizon Virginia Agreement pursuant to section
252(i) of the Act.32 Effective October 19, 1999, the parties
entered into a written agreement, known as the ``Adoption
Agreement,'' memorializing Starpower's adoption of the terms and
conditions of the MCImetro-Verizon Virginia Agreement.33 The
Virginia SCC approved the resulting interconnection agreement
(``Second Starpower-Verizon Virginia Agreement'') on April 25,
2000.34 The Adoption Agreement contains a clause in which the
parties essentially agree to disagree about the applicability of
the interconnection agreement's reciprocal compensation
provisions to ISP-bound traffic.35 Specifically, Starpower
articulated its belief that the agreement's reciprocal
compensation arrangements ``apply to Internet traffic,'' but
acknowledged that Verizon Virginia takes the opposite view and
that, by signing the Adoption Agreement, Verizon Virginia does
not waive any claims or defenses pertaining to the issue.36
12. Part B of the Second Starpower-Verizon Virginia
Agreement defines ``Reciprocal Compensation'' as:
refer[ring] to a reciprocal compensation
arrangement between two carriers in which
each of the two carriers receives
compensation from the other carrier for the
transport and termination on each carrier's
network facilities of Local Traffic that
originates on the network facilities of the
other carrier.37
According to the agreement, ``Local Traffic'' is:
traffic that is originated by an end user
subscriber of one Party on that Party's
network and terminates to an end user
subscriber of the other Party on that other
Party's network within a given local calling
area, or expanded area (``EAS'') service, as
defined in Bell Atlantic's Tariffs, or, if
the Commission has defined local calling
areas applicable to all Local Exchange
Carriers, then as so defined by the
Commission.38
This language closely resembles the Commission's then-
existing rule regarding the types of traffic subject to
reciprocal compensation under section 251(b) of the
Act:
For purposes of this subpart, local
telecommunications traffic means . .
.Telecommunications traffic between a LEC and
a telecommunications carrier other than a
CMRS provider that originates and terminates
within a local service area established by
the state commission . . . .39
13. Section 4 of Attachment I to the Second Starpower-
Verizon Virginia Agreement governs the parties' reciprocal
compensation obligations and provides, in relevant part:
[Starpower] may choose to deliver both Local
Traffic and toll traffic over the same trunk
group(s), pursuant to the provisions of
Attachment IV. In the event [Starpower]
chooses to deliver both types of traffic over
the same traffic exchange trunks, and desires
application of the local call transport and
termination rates, it will provide Percent
Local Usage (``PLU'') information to [Verizon
Virginia] as set forth in Attachment IV. In
the event [Starpower] includes both
interstate and intrastate toll traffic over
the same trunk, it will provide Percent
Interstate Usage (``PIU'') to [Verizon
Virginia] as set forth in Attachment IV.
[Verizon Virginia] shall have the same
options, and to the extent it avails itself
of them, the same obligation, to provide PLU
and PIU information to [Starpower]. To the
extent feasible, PLU and PIU information
shall be based on the actual end-to-end
jurisdictional nature of each call sent over
the trunk.40
14. The above reciprocal compensation provisions are the
only ones in the Second Starpower-Verizon Virginia Agreement
governing compensation for Local Traffic,41 and the word
``termination'' is undefined.42
15. The parties exchanged traffic under the Second
Starpower-Verizon Virginia Agreement as they did under the First
Starpower-Verizon Virginia Agreement,43 and Starpower submitted
invoices to Verizon Virginia seeking, among other things,
compensation for transporting and terminating ISP-bound
traffic.44 Verizon Virginia denies that such traffic constitutes
``Local Traffic'' and has refused to pay reciprocal
compensation.45 The Second Starpower-Verizon Virginia Agreement
currently governs the exchange of traffic between Starpower and
Verizon Virginia.46
II.A.2. Starpower-Verizon South Agreement
16. On September 5, 1996, MFS Intelnet of Virginia, Inc.
and Verizon South executed an interconnection agreement (``MFS-
Verizon South Agreement'') pursuant to section 252(a) of the
Act,47 which the Virginia SCC approved on July 9, 1997.48 By
letter dated February 17, 1998, Starpower notified Verizon South
that it had elected to obtain interconnection with Verizon South
by adopting the MFS-Verizon South Agreement pursuant to section
252(i) of the Act.49 Verizon South subsequently advised the
Virginia SCC of Starpower's adoption of the MFS-Verizon South
Agreement.50 The Virginia SCC declined to take any action to
approve Starpower's adoption of the MFS-Verizon South Agreement,
however, because Starpower's adoption of the agreement had not
been negotiated or arbitrated.51 By letter dated October 1,
1998, the parties ``agree[d] they will honor the [section] 252(i)
adoption by . . . Starpower of the rates terms and conditions of
the [MFS-Verizon South Agreement] as effective and binding upon .
. . [Verizon South] and Starpower in accordance with the 252(i)
adoption letter[] executed by the parties on . . . March 11,
1998. . . .''52
17. Section VI.A of the Starpower-Verizon South Agreement
provides that the parties ``shall reciprocally terminate POTS
calls originating on each others' networks.''53 ``POTS'' stands
for ``Plain Old Telephone Service'' traffic, which ``includes
local traffic (including EAS) as defined in [Verizon South's]
tariff.''54 Verizon South's General Customer Services Tariff, in
turn, defines Local Service as ``[t]elephone service furnished
between customer's stations [sic] located within the same
exchange area.''55 The Starpower-Verizon South Agreement
obligates the parties to pay reciprocal compensation ``[f]or the
termination of local traffic.''56 The agreement, however, does
not separately define the word ``termination,''57 and no other
provisions of the agreement govern compensation of local
traffic.58 The Starpower-Verizon South Agreement remains in
effect today.59
II.B. Procedural History
18. In 1999, Starpower filed petitions with the Virginia
SCC seeking declarations requiring Verizon South and Verizon
Virginia to pay reciprocal compensation to Starpower for the
delivery of ISP-bound traffic pursuant to the terms of the
foregoing interconnection agreements.60 The Virginia SCC
declined jurisdiction over Starpower's petitions and encouraged
Starpower to seek relief from this Commission.61
19. In March 2000, Starpower filed a petition with the
Commission requesting that, pursuant to section 252(e)(5) of the
Act,62 the Commission preempt the jurisdiction of the Virginia
SCC over the Starpower/Verizon South and Starpower/Verizon
Virginia contract disputes.63 On June 14, 2000, the Commission
granted Starpower's preemption petition, stating that it would
resolve the following question: ``whether the existing
interconnection agreements between Starpower and GTE [i.e.,
Verizon South] and Bell Atlantic [i.e., Verizon Virginia] require
GTE and Bell Atlantic to pay compensation to Starpower for the
delivery of ISP-bound traffic.''64
20. On November 28, 2000, Starpower filed formal complaints
with the Commission against Verizon Virginia and Verizon South.
In short, the complaints allege that Verizon violated the
unambiguous terms of the interconnection agreements with
Starpower by failing to compensate Starpower for the
``transportation and termination of local calls originated by
[Verizon] end-users and bound for [ISPs] purchasing local
exchange service from Starpower.''65 The complaints seek orders
from the Commission declaring that (1) Starpower is entitled to
be compensated for transporting and terminating calls to ISPs
under the terms of the interconnection agreements; and (2)
Verizon is liable to pay Starpower all past due amounts under the
agreements, together with applicable interest and/or late fees,
and to compensate Starpower for transporting and terminating
calls to ISPs until the Second Starpower-Verizon Virginia
Agreement and the Starpower-Verizon South Agreement are
``superceded [sic] in accordance with the Act and the terms of
the Agreement[s].''66
21. In a December 8, 2000 Supplemental Submission,
Starpower requested that, in addition to the relief sought in the
complaints, the Commission enter an award of damages in a
subsequent phase of the proceeding.67 The Commission treated the
Supplemental Submission as a motion to bifurcate the issue of
liability from the issue of damages and, on January 16, 2001,
granted the motion.68
22. On December 27, 2000, Verizon filed answers to
Starpower's complaints. The answers assert, inter alia, that
ISP-bound traffic is not eligible for reciprocal compensation
under the unambiguous terms of the interconnection agreements,
because under an ``end-to-end'' analysis such traffic is
jurisdictionally interstate.69
III. DISCUSSION
III.A. The Interconnection Agreements Determine the
Parties' Reciprocal Compensation Obligations for ISP-
Bound Traffic.
23. The Commission twice has held, and the parties do not
dispute, that during the period relevant here, carriers could
address in their interconnection agreements the issue of
compensation for the delivery of ISP-bound traffic.70 The
parties appear to agree that their interconnection agreements do,
in fact, address and conclusively govern this compensation
issue.71 Thus, the question we confront in this proceeding is
whether any of the three interconnection agreements at issue
entitle Starpower to receive reciprocal compensation for the
delivery of ISP-bound traffic.
III.B. The ``Plain Meaning'' Rule under Virginia Law
Governs Our Interpretation of the Parties'
Interconnection Agreements.
24. In interpreting the interconnection agreements at issue
in this case, we stand in the shoes of the Virginia SCC.72 We
agree with the parties that Virginia law supplies the applicable
rules of contract interpretation.73 Virginia adheres to the
``plain meaning'' rule: ``where the terms of the contract are
clear and unambiguous, we will construe those terms according to
their plain meaning.''74 Although the cornerstone of a ``plain
meaning'' analysis is a contract's language,75 in ascertaining
the parties' intent ``as expressed by them in the words they have
used,''76 a court also may examine the ``surrounding
circumstances, the occasion, and [the] apparent object of the
parties.''77 In particular, as both parties acknowledge, a court
may consider the legal context in which a contract was
negotiated, because the laws in force at the time a contract is
made become ``as much a part of the contract as if incorporated
therein.''78 Moreover, ``custom and usage may be used to
supplement or explain a contract,'' as long as this type of
evidence is not inconsistent with the contract's express terms.79
Furthermore, course-of-performance evidence can be considered to
ascertain a contract's meaning rather than to ``create a new,
additional contract right.''80
25. All parties invoke the ``plain meaning'' rule in
support of their case.81 According to Starpower, ``as
interpreted under the `plain meaning' rule . . . the Agreements
unambiguously comprehend ISP-bound traffic within the ambit of
the term `local traffic,''' which renders the delivery of such
traffic compensable.82 Verizon similarly relies upon the ``plain
meaning'' rule to argue that the interconnection agreements
unambiguously do not require payment of reciprocal compensation
for the delivery of ISP-bound traffic.83 For the reasons
described below, applying Virginia's rules of contract
interpretation, we agree with the parties that all three
agreements at issue are unambiguous regarding compensation for
the delivery of ISP-bound traffic. We further conclude that the
Starpower-Verizon South Agreement requires reciprocal
compensation for the delivery of ISP-bound traffic, whereas the
Starpower-Verizon Virginia Agreements do not.
III.C. Neither the First Starpower-Verizon Virginia
Agreement nor the Second Starpower-Verizon Virginia
Agreement Obligates Verizon Virginia to Pay Reciprocal
Compensation to Starpower for the Delivery of ISP-Bound
Traffic.
III.C.1. The Starpower-Verizon Virginia Agreements Do
Not Require Reciprocal Compensation for the
Delivery of Traffic that Is Jurisdictionally
Interstate under the Commission's Traditional End-
to-End Analysis.
26. We begin by examining the relevant terms of the First
and Second Starpower-Verizon Virginia Agreements. Under both
agreements, the parties must pay reciprocal compensation for the
transport and termination of only ``Local Traffic.''84 Neither
agreement states expressly whether ISP-bound traffic is ``Local
Traffic.'' Instead, both agreements generally define ``Local
Traffic'' according to whether a call from one party's network
``terminates'' on the other party's network.85 Although neither
agreement defines the word ``terminates,'' both agreements
provide a criterion for determining whether traffic terminates on
the other party's network for the purposes of the agreements'
reciprocal compensation provisions. Specifically, paragraph
5.7.5 of the First Starpower-Verizon Virginia Agreement provides
that traffic shall be designated local or non-local based upon
the ``actual originating and terminating points of the complete
end-to-end call.''86 Paragraph 4.1 of the Second Starpower-
Verizon Virginia Agreement similarly states that whether traffic
is subject to local call transport and termination rates depends
on the ``actual end-to-end jurisdictional nature of each call
sent over the trunk.''87
27. We believe that each agreement's use of the phrase
``end-to-end'' is an incorporation of the Commission's long-
standing method of determining the jurisdictional nature of
particular traffic. Specifically, the Commission traditionally
has determined the jurisdictional nature of communications by the
end points of the communications, rejecting attempts to divide
communications at any intermediate points of switching or
exchanges between carriers.88 In Teleconnect, for example, the
Commission stated that, in assessing the jurisdictional nature of
a call, ``both court and Commission decisions have considered the
end-to-end nature of the communications more significant than the
facilities used to complete such communication.''89 And in the
ONA Plans Order, the Commission stated that a service is
jurisdictionally interstate ``when it involves communications or
transmissions between points in different states on an end-to-end
basis.''90 In fact, the District of Columbia Circuit Court of
Appeals expressly has acknowledged that ``the end-to-end analysis
applied by the Commission here is one that it has traditionally
used to determine whether a call is within its interstate
jurisdiction.''91 This Court also said that ``[t]here is no
dispute that the Commission has historically been justified in
relying on this [end-to-end] method when determining whether a
particular communication is jurisdictionally interstate.''92
28. In light of this pervasive precedent, we believe that
the phrase ``end-to-end,'' used in the context of classifying
communications traffic, had achieved a customary meaning in the
telecommunications industry.93 Thus, the two agreements' use of
the term of art ``end-to-end'' signifies that the determination
whether certain traffic falls within the category of compensable
``Local Traffic'' turns on the jurisdictional nature of the
traffic, as divined via the Commission's traditional mode of
analysis. In other words, according to the agreements, a call
constitutes compensable ``Local Traffic'' only if it is not
jurisdictionally interstate under the Commission's end-to-end
analysis.
29. Indeed, Starpower acknowledges - at least with respect
to the First Starpower-Verizon Virginia Agreement - that the
compensation due under the agreement for the delivery of ISP-
bound traffic hinges on the traffic's jurisdictional nature. In
particular, a declarant on behalf of Starpower who participated
in the negotiation of the MFS-Verizon Virginia Agreement states:
``[Verizon Virginia] is correct that the parties `intended to
ensure that the actual jurisdictional nature of the traffic¾as
traditionally construed by the FCC¾would control its
characterization for compensation purposes.'''94 Although the
declarant further states that ISP-bound traffic nonetheless is
subject to reciprocal compensation, ``given the parties'
understanding and stated belief that calls to ISPs were Local
Traffic,''95 his admission regarding the importance of the
jurisdictional nature of traffic is clear.96
30. Given that the First and Second Starpower-Verizon
Virginia Agreements link compensation to jurisdiction, those
agreements exclude ISP-bound traffic from the scope of their
reciprocal compensation provisions. This is because the
Commission has long categorized traffic to enhanced service
providers (``ESPs''), including ISPs, as predominantly interstate
for jurisdictional purposes.97 The Commission recently affirmed
this conclusion: ``Most Internet-bound traffic traveling between
a LEC's subscriber and an ISP is indisputably interstate in
nature when viewed on an end-to-end basis.''98 Accordingly,
under the unambiguous terms of the First and Second Starpower-
Verizon Virginia Agreements, ISP-bound traffic does not
constitute compensable ``Local Traffic,'' because ISP-bound
traffic is jurisdictionally interstate.
31. Buttressing this conclusion is the fact that the
agreements' definitions of ``Local Traffic'' closely resemble the
Commission's preexisting descriptions of the kind of traffic
subject to the reciprocal compensation mandate of section
251(b)(5) of the Act. Specifically, the First Starpower-Verizon
Virginia Agreement defines ``Local Traffic'' as traffic that
originates on one party's network and terminates on another
party's network within a local calling area or expanded service
area.99 This tracks the Local Competition Order NPRM's
description of telecommunications encompassed by section
251(b)(5) as (at least) traffic that originates on one LEC's
network and terminates on a competing LEC's network in the same
local service area.100 Moreover, the Second Starpower-Verizon
Virginia Agreement defines ``Local Traffic'' as traffic that
originates on one party's network and terminates on another
party's network within a local calling area as defined by tariff
or the Commission.101 Former section 51.701(b) of the
Commission's rules similarly characterized ``local
telecommunications traffic'' as telecommunications traffic
between a LEC and another telecommunications carrier that
originates and terminates within a local service area as defined
by a state commission.102 These striking similarities reveal an
intent to track the Commission's interpretation of the scope of
section 251(b)(5), i.e., whatever the Commission determines is
compensable under section 251(b)(5) will be what is compensable
under the agreements. Although the Commission's rationale has
evolved over time, the Commission consistently has concluded that
ISP-bound traffic does not fall within the scope of traffic
compensable under section 251(b)(5). Consequently, for this
reason, as well, we find that the First and Second Starpower-
Verizon Virginia Agreements exclude ISP-bound traffic from the
definition of ``Local Traffic'' (and therefore from reciprocal
compensation obligations).
32. One final note. In his Separate Statement,
Commissioner Martin dissents from our conclusions regarding the
First and Second Starpower-Verizon Virginia Agreements, because
he does not wish to ``support[] the use of the Commission's end-
to-end analysis,'' on which the ``D.C. Circuit [has]cast serious
doubt.''103 We find no tension between this decision and the
D.C. Circuit's ruling in the Bell Atlantic Remand Order.104 The
end-to-end jurisdictional analysis is used here strictly to
assist in a matter of contract interpretation. The Commission
indisputably utilized the ``end-to-end'' jurisdictional analysis
at the time the parties entered the First and Second Starpower-
Verizon Virginia Agreements, and we conclude only that the
parties incorporated that analysis into their contracts.
III.C.2. The Context of the Starpower-Verizon Virginia
Agreements Does Not Trump Their Plain Language
Linking Compensation to Jurisdiction.
33. Starpower contends that the ``purpose, structure and
substance'' of the First and Second Starpower-Verizon Virginia
Agreements support its interpretation of the term ``Local
Traffic.''105 In particular, Starpower points out that (1) the
primary purpose of the agreements is to set forth the types of
traffic the parties will exchange and the terms and conditions
under which exchange and compensation will occur; (2) no
provision of the agreements excludes ISP-bound traffic from the
definition of ``Local Traffic''; (3) no provision of the
agreements provides an alternative designation for ISP-bound
traffic, if it is not ``Local Traffic''; (4) the agreements do
not provide an alternative means of compensation for ISP-bound
traffic, if it does not qualify for reciprocal compensation; and
(5) no provision of the agreements requires the parties to
transport ISP-bound traffic separately or to maintain a separate
accounting for the traffic.106 Starpower argues that, in light
of these circumstances, the parties must have intended
compensable ``Local Traffic'' to include ISP-bound traffic.107
34. We disagree with Starpower's argument. As an initial
matter, even assuming that Starpower correctly characterizes the
``purpose'' of the agreements, that does not mean that the
agreements were intended to provide compensation for every type
of traffic the parties exchange. To the contrary, as discussed
above, paragraphs 5.7.5 and 4.1 require ISP-bound traffic to be
characterized as jurisdictionally interstate, thereby removing it
from the definition of ``Local Traffic.''108 This undermines
Starpower's second observation as well, because the agreements
do, in fact, contain provisions (i.e., paragraphs 5.7.5 and 4.1)
specifically excluding ISP-bound traffic from the definition of
``Local Traffic.'' Starpower's third, fourth, and fifth
assertions focus on the absence of language providing an
alternative designation for ISP-bound traffic, an alternative
means of compensating the parties for transport and termination
of ISP-bound traffic, or a requirement that the parties
separately track ISP-bound traffic. Even assuming Starpower's
characterization of the contracts is correct (and Verizon
Virginia argues that it is not),109 we cannot conclude that the
absence of certain contractual language has more persuasive force
than the existence of other language addressing the precise
question at hand - i.e., whether ISP-bound traffic constitutes
``Local Traffic,'' as that term is defined in the agreements.
35. As stated above, Starpower asserts correctly110 (and
Verizon Virginia concurs)111 that, in construing the agreements,
the Commission may take account of the regulatory context in
which the parties negotiated the agreements. Starpower further
asserts correctly112 (and Verizon Virginia concurs)113 that the
relevant regulatory context in which the parties negotiated was
that, for many purposes, the Commission treated ISP-bound traffic
as though it were local.114 For example, ISPs may purchase their
links to the public switched telephone network through local
business tariffs rather than through interstate access
tariffs;115 moreover, for separations purposes, ILECs must
characterize expenses and revenues associated with ISP-bound
traffic as intrastate.116 Starpower then argues that, because
the Commission treats ISP-bound traffic as local for many
regulatory purposes, the parties had a reasonable expectation
that the term ``Local Traffic'' includes ISP-bound traffic.117
36. Again, we disagree. First, although the context cited
by Starpower has some force, another part of the relevant
regulatory context is that, under an end-to-end analysis, the
Commission has long held that ISP-bound traffic is interstate for
jurisdictional purposes. The agreements' compensation provisions
specifically refer to this latter context. Moreover, the
Commission's regulatory treatment of ISP-bound traffic as local
for certain purposes only makes it possible that parties agreed
in interconnection agreements to include such traffic within the
ambit of calls eligible for reciprocal compensation. It does not
mean that the parties inevitably did so. With respect to the
Starpower-Verizon Virginia Agreements, we believe the parties
unambiguously agreed not to treat ISP-bound traffic as ``Local
Traffic'' for reciprocal compensation purposes. They did so by
linking compensation to the jurisdictional nature of the traffic,
rather than to the separations, tariff, or other local-pointing
nature of the traffic. They also did so by tracking the
Commission's construction of section 251(b)(5). In the face of
such language, we cannot find the regulatory context cited by
Starpower to be dispositive.
37. In a related vein, Starpower correctly notes that, in
granting Starpower's Petition for Preemption, we stated that we
would apply, inter alia, the principles that we previously
suggested state commissions utilize when construing the
reciprocal compensation provisions of interconnection
agreements.118 Specifically, in the Declaratory Ruling, we
observed that ``state commissions have the opportunity to
consider all the relevant facts, including the negotiation of the
agreements in the context of this Commission's longstanding
policy of treating [ISP-bound] traffic as local, and the conduct
of the parties pursuant to those agreements.''119 Accordingly,
we identified several ``illustrative'' factors that it ``may be
appropriate for state commissions to consider,'' including:
whether incumbent LECs serving ESPs
(including ISPs) have done so out of
intrastate or interstate tariffs; whether
revenues associated with those services were
counted as intrastate or interstate revenues;
whether there is evidence that incumbent LECs
or CLECs made any effort to meter this
traffic or otherwise segregate it from local
traffic, particularly for the purpose of
billing one another for reciprocal
compensation; whether, in jurisdictions where
incumbent LECs bill their end users by
message units, incumbent LECs have included
calls to ISPs in local telephone charges; and
whether, if ISP traffic is not treated as
local and subject to reciprocal compensation,
incumbent LECs and CLECs would be compensated
for this traffic.120
38. Starpower argues that application of these factors
requires a ruling in its favor.121 Starpower observes, inter
alia, that Verizon serves ISPs out of intrastate tariffs and
counts revenues associated with calls to ISPs as intrastate
revenue.122 These facts are true,123 and we remain of the view
that they are relevant context that we should consider in
construing the First and Second Starpower-Verizon Virginia
Agreements. We do not believe, however, that this evidence of
context outweighs the specific language in the First and Second
Starpower-Verizon Virginia Agreements characterizing the
compensability of traffic on the basis of its jurisdictional
nature. Again, the unambiguous language of the First and Second
Starpower-Verizon Virginia Agreements compels the conclusion that
ISP-bound traffic is not ``Local Traffic,'' as that term is
defined in the agreements. To be sure, the Declaratory Ruling
acknowledged that parties to interconnection agreements could
have agreed to treat ISP-bound traffic as local traffic.124 The
converse, however, is equally true.125
III.C.3. State Regulatory Decisions Construing Other
Interconnection Agreements Are Not Dispositive.
39. We do not find dispositive the many state regulatory
commission decisions cited by Starpower and holding that ISP-
bound traffic is subject to reciprocal compensation.126 As
Starpower's own brief highlights,127 none of these decisions
specifically construes the contractual language at issue in this
case, which, as discussed above, makes the jurisdictional nature
of traffic determinative of whether it constitutes compensable
``Local Traffic.''128
40. One decision merits additional discussion. Starpower
contends that the Virginia SCC's decision in Cox Virginia
Telcom129 is dispositive, because, as to Verizon Virginia, it is
preclusive under the doctrine of collateral estoppel, and because
it is a binding determination by a state commission that,
pursuant to the Order on Remand, the Commission cannot
preempt.130 We disagree. First, Starpower has not demonstrated
that the requirements for collateral estoppel have been
satisfied. Under Virginia law, in order for collateral estoppel
to apply, the ``factual issue sought to be litigated actually
must have been litigated in the prior action.''131 The meaning
of the agreements between Starpower and Verizon Virginia was not
at issue in Cox Virginia Telcom. Accordingly, Starpower cannot
avail itself of the collateral estoppel doctrine in this
proceeding. In any event, at Starpower's request, this
Commission already has preempted the Virginia SCC's authority to
interpret the ``interconnection agreements between Starpower and
GTE and Bell Atlantic.''132 The Virginia SCC has not yet
addressed the dispute between the parties to these agreements,
and we believe the case is appropriate for our resolution.
* * *
41. In sum, utilizing a plain meaning analysis, we find
that the First and Second Starpower-Verizon Virginia Agreements
exclude ISP-bound traffic from the scope of their reciprocal
compensation provisions. Specifically, for purposes of defining
compensable ``Local Traffic,'' the language of the agreements
expressly references and incorporates the Commission's historic
reliance on an ``end-to-end'' analysis of traffic for determining
the traffic's jurisdictional nature. Because the Commission long
has held, under an end-to-end analysis, that ISP-bound traffic is
predominantly interstate for jurisdictional purposes, such
traffic falls outside the definition of ``Local Traffic,'' as
used in the agreements. Moreover, the language of the agreements
manifests an intent to track the Commission's construction of the
scope of compensable traffic under section 251(b)(5), and the
Commission consistently has excluded ISP-bound traffic from the
reach of that statutory provision. In our view, therefore, the
language of these agreements outweighs the contrary evidence of
context on which Starpower relies. Thus, neither the First
Starpower-Verizon Virginia Agreement nor the Second Starpower-
Verizon Virginia Agreement requires Verizon Virginia to pay
Starpower reciprocal compensation for the delivery of ISP-bound
traffic.
III.D. The Starpower-Verizon South Agreement Obligates
Verizon South to Pay Reciprocal Compensation to
Starpower for the Delivery of ISP-Bound Traffic.
42. Compared to the Starpower-Verizon Virginia Agreements,
the Starpower-Verizon South Agreement is relatively terse
regarding reciprocal compensation. It obligates the parties to
``reciprocally terminate [Plain Old Telephone Service] calls
originating on each others' networks,''133 including ``local
traffic . . . as defined in [Verizon South's] tariff.''134
According to Verizon South's General Customer Services Tariff
(``Tariff''),135 ``Local Service'' is ``[t]elephone service
furnished between customer's stations [sic] located within the
same exchange area.''136 The parties agreed to compensate each
other at an ``equal, identical and reciprocal rate'' for the
``termination of local traffic.''137 The Starpower-Verizon South
Agreement does not separately define the phrase ``local traffic''
or the word ``termination.''
43. As with the Starpower-Verizon Virginia Agreements, each
party argues that the ``plain meaning'' of the Starpower-Verizon
South Agreement supports its position: Starpower contends that
the agreement clearly compels payment of reciprocal compensation
for the delivery of ISP-bound traffic;138 Verizon maintains that
the agreement clearly does not.139 For the reasons discussed
below, we find that the Starpower-Verizon South Agreement
requires Verizon South to pay Starpower reciprocal compensation
for the delivery of ISP-bound traffic.
44. As noted above, the Starpower-Verizon South Agreement's
definition of compensable ``local traffic'' is derived from the
Tariff.140 Thus, whatever traffic is ``local'' under the Tariff
is compensable traffic under the Starpower-Verizon South
Agreement.
45. The parties agree that ISP-bound traffic is ``local
traffic'' under the Tariff. Specifically, the parties stipulate
that, when a Verizon South customer places a call to the Internet
through an ISP, using a telephone number associated with the
caller's local calling area, Verizon South rates and bills that
customer for a local call pursuant to the terms of the Tariff.141
Consequently, ISP-bound traffic falls within the Tariff's
definition of ``Local Service.'' Accordingly, because the
Starpower-Verizon South Agreement adopts the Tariff's conception
of local traffic, we conclude that the Agreement plainly requires
Verizon to pay reciprocal compensation for the delivery of ISP-
bound traffic.
46. Verizon South contends that it would be ``remarkably
unfair'' for the Commission to rely on Verizon South's manner of
billing for termination of ISP-bound traffic, because it merely
reflects Verizon South's adherence to the ``positive requirements
of federal law.''142 This objection is meritless, because
Verizon South voluntarily agreed to link the compensability of
traffic under the Starpower-Verizon South Agreement to the
classification of traffic in the Tariff.
47. Verizon South further claims that the parties intended
the Starpower-Verizon South Agreement to follow the requirements
of federal law, by distinguishing in the agreement between
``local traffic'' on the one hand and exchange access traffic on
the other.143 According to Verizon South, this difference
``tracks precisely the distinction that the Commission drew in
[paragraph 1034] of the Local Interconnection Order,''144 where
the Commission concluded that ``reciprocal compensation
obligations should apply only to traffic that originates and
terminates within a local area . . . .''145 We disagree. The
Starpower-Verizon South Agreement does not track the language
used by the Commission to implement section 251(b)(5). In
particular, the agreement's definition of ``local traffic''
neither speaks in terms of ``origination'' and ``termination'' of
traffic, nor references local calling areas. In this way, it
differs significantly from the Starpower-Verizon Virginia
Agreements.146 Moreover, unlike the Starpower-Verizon Virginia
Agreements,147 the Starpower-Verizon South Agreement does not
link a call's compensability to the Commission's traditional end-
to-end jurisdictional analysis.
48. Finally, we believe Verizon South places too much stock
in a recent decision by the United States Court of Appeals for
the Fourth Circuit, which found that ``many so-called
`negotiated' provisions [of interconnection agreements] represent
nothing more than an attempt to comply with the requirements of
the 1996 Act.''148 AT&T v. BellSouth is inapposite, because the
interconnection provision at issue in that case (pertaining to
unbundled network elements) obligated BellSouth to offer a
service that it clearly was required to provide by then-
controlling federal law. ``Where a provision plainly tracks the
controlling law,'' the Court said, ``there is a strong
presumption that the provision was negotiated with regard to the
[Act] and the controlling law.''149 The Court found that, where
an interconnection agreement ``was clearly negotiated with regard
to the 1996 Act and law thereunder,'' the contested provision
could be reformed if there were a change in controlling law.150
In this case, there was no controlling federal law mandating a
particular compensation arrangement for ISP-bound traffic. To
the contrary, the Commission explicitly allowed the parties to
negotiate regarding the issue and settle on whatever compensation
terms they deem appropriate.151
49. In sum, given the Starpower-Verizon South Agreement's
reference to the Tariff, whatever calls Verizon South bills to
its customers as local calls under the Tariff must be compensable
local calls under the Starpower-Verizon South Agreement. Because
it is undisputed that Verizon bills ISP-bound traffic as local
calls under the Tariff, such calls are compensable under the
Starpower-Verizon South Agreement. Thus, Verizon must pay
reciprocal compensation to Starpower for the termination of ISP-
bound traffic.
IV. CONCLUSION AND ORDERING CLAUSES
50. For the above reasons, we find that the two
interconnection agreements between Starpower and Verizon Virginia
do not require Verizon Virginia to pay reciprocal compensation to
Starpower for the delivery of ISP-bound traffic. We further
find, however, that the interconnection agreement between
Starpower and Verizon South does require Verizon South to pay
reciprocal compensation to Starpower for the delivery of ISP-
bound traffic.
51. Accordingly, IT IS ORDERED, pursuant to sections 1,
4(i), 4(j), 208, and 252(e)(5) of the Communications Act of 1934,
as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 208, and 252(e)(5),
that the complaint filed by Starpower against Verizon Virginia is
hereby DENIED.
52. IT IS FURTHER ORDERED, pursuant to sections 1, 4(i),
4(j), 208, and 252(e)(5) of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 154(i), 154(j), 208, and 252(e)(5),
that the complaint filed by Starpower against Verizon South is
hereby GRANTED.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary
SEPARATE STATEMENT OF
COMMISSIONER KEVIN J . MARTIN,
APPROVING IN PART AND DISSENTING IN PART
Re: Starpower Communications, LLC v. Verizon South Inc.;
Starpower Communications, LLC v. Verizon Virginia Inc.,
Memorandum Opinion and Order, File Nos. EB-00-MD-19 & EB-00-
MD-20
I dissent in part from this Order, because I question its
analysis of the two Verizon Virginia interconnection agreements.
As the Order acknowledges, both of these agreements require the
payment of reciprocal compensation for ``Local Traffic,'' and
both agreements define ``Local Traffic'' in terms of where a call
``terminates.'' The Order finds that ISP-bound traffic is not
``Local Traffic,'' because, the Order concludes, under an ``end-
to-end'' analysis, ISP-bound traffic does not terminate within a
local service area. The Order does not offer any definition of
``termination.''
This analysis is essentially the same as that employed by
the Commission in its first declaratory ruling on reciprocal
compensation, which was subsequently vacated by the D.C. Circuit.
See Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996; Inter-Carrier Compensation for
ISP-Bound Traffic, Declaratory Ruling, 14 FCC Rcd 3689 (1999).
In that ruling, the Commission applied an ``end-to-end'' analysis
and concluded that calls to ISPs do not terminate at the ISP's
local server, but instead continue to the ``ultimate destination
or destinations, specifically at a[n] Internet website that is
often located in another state.'' Id. ¶ 12.
The D.C. Circuit cast serious doubt on this analysis,
concluding that the Commission had not adequately explained its
reasoning. Bell Atlantic Tel. Cos. v. FCC, 206 F.3d 1, 5 (D.C.
Cir. 2000). Among other things, the Court stated:
[U]nder 47 CFR § 51.701(b)(1), ``telecommunications
traffic'' is local if it ``originates and terminates
within a local service area.'' But, observes MCI
WorldCom, the Commission failed to apply, or even to
mention, its definition of ``termination,'' namely
``the switching of traffic that is subject to section
251(b)(5) at the terminating carrier's end office
switch (or equivalent facility) and delivery of that
traffic from that switch to the called party's
premises.'' Calls to ISPs appear to fit this
definition: the traffic is switched by the LEC whose
customer is the ISP and then delivered to the ISP,
which is clearly the ``called party.''
Id. at 6 (citations omitted; emphasis added).
The current Order appears to suffer the same flaws as those
identified by the D.C. Circuit. While this proceeding is not the
appropriate place to reconsider the Commission's treatment of
reciprocal compensation - that issue is again before the D.C.
Circuit - I am not comfortable supporting the use of the
Commission's end-to-end analysis here without a better
explanation and more full response to the questions raised by the
D.C. Circuit. Accordingly, I dissent in part from this Order.
_________________________
1 47 U.S.C. §§ 208, 252(e)(5).
2 Verizon Virginia Inc. formerly was known as Bell Atlantic-
Virginia, Inc. Answer of Verizon Virginia Inc., File No. EB-00-
MD-20 (filed Dec. 27, 2000) (``Verizon Virginia Answer'') at 1.
Verizon South Inc. formerly was known as GTE South Incorporated.
Answer of Verizon South Inc., File No. EB-00-MD-19 (filed Dec.
27, 2000) (``Verizon South Answer'') at 1. We refer to Verizon
Virginia and Verizon South collectively as ``Verizon.''
3 Joint Statement, File No. EB-00-MD-20 (filed Jan. 12, 2001)
(``Starpower-Verizon Virginia Joint Statement'') at 1, ¶ 1; Joint
Statement, File No. EB-00-MD-19 (filed Jan. 12, 2001)
(``Starpower-Verizon South Joint Statement'') at 1, ¶ 1.
4 Starpower-Verizon Virginia Joint Statement at 1, ¶ 2;
Starpower-Verizon South Joint Statement at 1, ¶ 2. Specifically,
Verizon Virginia serves a portion of the Washington, D.C. local
access and transport area (``LATA''), including parts of
Arlington and Fairfax counties in Virginia, while Verizon South
serves a different portion of the Washington, D.C. LATA,
including the area surrounding Dulles International Airport in
Virginia. Starpower-Verizon Virginia Joint Statement at 8, ¶ 38;
Starpower-Verizon South Joint Statement at 5, ¶ 21.
5 Starpower-Verizon Virginia Joint Statement at 8, ¶ 37;
Starpower-Verizon South Joint Statement at 4, ¶ 19.
6 Formal Complaint, File No. EB-00-MD-19 (filed Nov. 27, 2000)
(``Starpower-Verizon South Complaint''), Exhibit A (MFS/GTE
Interim Virginia Co-Carrier Agreement [``Starpower-Verizon South
Agreement'']); Formal Complaint, File No. EB-00-MD-20 (filed Nov.
27, 2000) (``Starpower-Verizon Virginia Complaint''), Exhibits D
(Interconnection Agreement Under Sections 251 and 252 of the
Telecommunications Act of 1996, dated as of March 9, 1998, by and
between Bell Atlantic-Virginia, Inc. and Starpower
Communications, LLC) [``First Starpower-Verizon Virginia
Agreement'']) and I (Interconnection Agreement Under Sections 251
and 252 of the Telecommunications Act of 1996, dated as of
October 19th, 1999, by and between Bell Atlantic-Virginia, Inc.
and Starpower Communications, LLC [``Second Starpower-Verizon
Virginia Agreement'']).
7 Starpower-Verizon Virginia Joint Statement at 2, ¶ 4. See 47
U.S.C. § 252(a) (ILECs may negotiate and voluntarily enter into
interconnection agreements with requesting carriers, which then
must be submitted for approval to the appropriate State
commission).
8 Starpower-Verizon Virginia Joint Statement at 2, ¶ 5.
9 47 U.S.C. § 252(i) (``A local exchange carrier shall make
available any interconnection, service, or network element
provided under an agreement approved under this section to which
it is a party to any other requesting telecommunications carrier
upon the same terms and conditions as those provided in the
agreement.'').
10 Starpower-Verizon Virginia Joint Statement at 2, ¶ 6.
11 Starpower-Verizon Virginia Joint Statement at 2, ¶ 7.
12 Starpower-Verizon Virginia Complaint, Exhibit B (Letter dated
February 19, 1998 from Sara Cole, Senior Legal Assistant, Bell
Atlantic, to Russell M. Blau, counsel for Starpower); Verizon
Virginia Answer at 10, ¶ 19.
13 Starpower-Verizon Virginia Joint Statement at 2, ¶ 8.
14 Starpower-Verizon Virginia Joint Statement at 2, ¶ 9.
15 Starpower-Verizon Virginia Joint Statement at 2, ¶ 10.
16 Starpower-Verizon Virginia Joint Statement at 3, ¶ 11;
Starpower-Verizon Virginia Complaint, Exhibit D (First Starpower-
Verizon Virginia Agreement) at 8, ¶ 1.61.
17 Starpower-Verizon Virginia Joint Statement at 3, ¶ 12;
Starpower-Verizon Virginia Complaint, Exhibit D (First Starpower-
Verizon Virginia Agreement) at 2, ¶ 1.7.
18 Starpower-Verizon Virginia Joint Statement at 3-4, ¶ 14;
Starpower-Verizon Virginia Complaint, Exhibit D (First Starpower-
Verizon Virginia Agreement ) at 6, ¶ 1.44.
19 47 U.S.C. § 251(b)(5).
20 Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, Notice of Proposed Rulemaking, 11
FCC Rcd 14171, 14249, ¶ 230 (1996) (``Local Competition Order
NPRM'') (emphasis added) (subsequent history omitted).
21 Starpower-Verizon Virginia Joint Statement at 3, ¶ 13;
Starpower-Verizon Virginia Complaint, Exhibit D (First Starpower-
Verizon Virginia Agreement) at 17-18, ¶¶ 5.7.2, 5.7.3, 5.7.5.
``Switched Exchange Access Service'' is defined in section 1.66
of the First Starpower-Verizon Virginia Agreement as the
``offering of transmission and switching services for the purpose
of the origination or termination of Toll Traffic.'' Starpower-
Verizon Virginia Joint Statement at 4, ¶ 15; Starpower-Verizon
Virginia Complaint, Exhibit D (First Starpower-Verizon Virginia
Agreement) at 9, ¶ 1.66. ``Toll Traffic,'' in turn, means
``traffic that is originated by a Customer of one Party on that
Party's network and terminates to a Customer of the other Party
on that Party's network and is not Local Traffic or Ancillary
Traffic. Toll Traffic may be either `IntraLATA Toll Traffic' or
`InterLATA Toll Traffic,' depending on whether the originating
and terminating points are within the same LATA.'' Starpower-
Verizon Virginia Joint Statement at 4, ¶ 16; Starpower-Verizon
Virginia Complaint, Exhibit D (First Starpower-Verizon Virginia
Agreement) at 9, ¶ 1.76.
22 Starpower-Verizon Virginia Joint Statement at 4, ¶ 18.
23 Starpower-Verizon Virginia Joint Statement at 4, ¶ 17.
24 Starpower-Verizon Virginia Joint Statement at 9, ¶ 42.
25 Starpower-Verizon Virginia Joint Statement at 9, ¶ 41.
26 Starpower-Verizon Virginia Joint Statement at 9, ¶ 42.
27 Starpower-Verizon Virginia Joint Statement at 9, ¶ 43.
28 Starpower-Verizon Virginia Joint Statement at 5, ¶ 22.
29 Starpower-Verizon Virginia Joint Statement at 5, ¶ 22. The
reason that the First Starpower-Verizon Virginia Agreement
remained in effect beyond July 1, 1999 is unclear from the
record.
30 Starpower-Verizon Virginia Joint Statement at 5, ¶ 24;
Starpower-Verizon Virginia Complaint, Exhibit F (MCImetro/Bell
Atlantic Interconnection Agreement 1997).
31 Starpower-Verizon Virginia Joint Statement at 6, ¶ 25.
32 Starpower-Verizon Virginia Joint Statement at 6, ¶ 26.
33 Starpower-Verizon Virginia Joint Statement at 6, ¶ 27.
34 Starpower-Verizon Virginia Joint Statement at 6, ¶ 27.
35 Starpower-Verizon Virginia Joint Statement at 6, ¶ 28.
36 Starpower-Verizon Virginia Complaint, Exhibit I (Second
Starpower-Verizon Virginia Agreement) at 5, ¶ 2.1.
37 Starpower-Verizon Virginia Joint Statement at 6, ¶ 29. The
parties did not include a complete copy of the Second Starpower-
Verizon Virginia Agreement as an exhibit to any of their
pleadings. Rather than referencing multiple exhibits when
discussing the agreement, we hereafter cite exclusively to the
parties' joint stipulations regarding the agreement's terms.
38 Starpower-Verizon Virginia Joint Statement at 7, ¶ 31.
39 47 C.F.R. § 51.701(b) (amended 2001).
40 Starpower-Verizon Virginia Joint Statement at 6-7, ¶ 30.
41 Starpower-Verizon Virginia Joint Statement at 8, ¶ 34.
42 Starpower-Verizon Virginia Joint Statement at 7, ¶ 32.
43 Starpower-Verizon Virginia Joint Statement at 9, ¶ 42.
44 Starpower-Verizon Virginia Joint Statement at 9, ¶ 41.
45 Starpower-Verizon Virginia Joint Statement at 9, ¶ 43.
46 Supplemental Joint Statement, File No. EB-00-MD-20 (filed Oct.
26, 2001) (``Starpower-Verizon Virginia Supplemental Joint
Statement'') at 2.
47 Starpower-Verizon South Joint Statement at 2, ¶ 4.
48 Starpower-Verizon South Joint Statement at 2, ¶ 5.
49 Starpower-Verizon South Joint Statement at 2, ¶ 6.
50 Starpower-Verizon South Joint Statement at 2, ¶¶ 6-7.
51 Starpower-Verizon South Joint Statement at 2, ¶ 8.
52 Starpower-Verizon South Joint Statement at 2, ¶ 9.
53 Starpower-Verizon South Joint Statement at 3, ¶ 10.
54 Starpower-Verizon South Joint Statement at 3, ¶ 11.
55 Starpower-Verizon South Joint Statement at 3, ¶ 12.
56 Starpower-Verizon South Joint Statement at 3, ¶ 13.
57 Starpower-Verizon South Joint Statement at 4, ¶ 17.
58 Starpower-Verizon South Joint Statement at 4, ¶ 18.
59 Supplemental Joint Statement, File No. EB-00-MD-19 (filed Oct.
26, 2001) (``Starpower-Verizon South Supplemental Joint
Statement'') at 2.
60 Starpower Communications, LLC Petition for Preemption of
Jurisdiction of the Virginia State Corporation Commission
Pursuant to Section 252(e)(5) of the Telecommunications Act of
1996, Memorandum Opinion and Order, 15 FCC Rcd 11277, 11278, ¶ 3
(2000) (``Preemption Order'').
61 Preemption Order, 15 FCC Rcd at 11278, ¶ 4.
62 47 U.S.C. § 252(e)(5) (``If a State commission fails to act to
carry out its responsibility under this section in any proceeding
or other matter under this section, then the Commission shall
issue an order preempting the State commission's jurisdiction of
that proceeding or matter within 90 days after being notified (or
taking notice) of such failure, and shall assume the
responsibility of the State commission under this section with
respect to the proceeding or matter and act for the State
commission.'').
63 Preemption Order, 15 FCC Rcd at 11278, ¶ 4.
64 Preemption Order, 15 FCC Rcd at 11281, ¶ 9.
65 See Starpower-Verizon Virginia Complaint at 1; Starpower-
Verizon South Complaint at 1.
66 Starpower-Verizon Virginia Complaint at 41; Starpower-Verizon
South Complaint at 33.
67 Supplemental Submission, File Nos. EB-00-MD-19, -20 (filed
Dec. 8, 2000) (``Supplemental Submission'') at 2.
68 Letter dated January 19, 2001 from William H. Davenport,
Special Counsel, Market Disputes Resolution Division, Enforcement
Bureau, to Russell M. Blau and Michael L. Shor, counsel for
Starpower, and Lawrence W. Katz and Aaron M. Panner, counsel for
Verizon, File Nos. EB-00-MD-19, -20 (rel. Jan. 19, 2001) at 1.
See 47 C.F.R. § 1.722.
69 See, e.g., Starpower-Verizon Virginia Answer at 1-2;
Starpower-Verizon South Answer at 1-2.
70 See Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996; Intercarrier Compensation for
ISP-Bound Traffic, Order on Remand and Report and Order, 16 FCC
Rcd 9151, 9160, ¶ 16 (2001) (``Order on Remand'') (citing
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996; Intercarrier Compensation for
ISP-Bound Traffic, Declaratory Ruling in CC Docket No. 96-98 and
Notice of Proposed Rulemaking in CC Docket No. 99-68, 14 FCC Rcd
3689, 3703, ¶ 22 (1999) (``Declaratory Ruling''), vacated and
remanded sub nom. Bell Atlantic Tel. Cos. v. FCC, 206 F.3d 1 (D.C
Cir. 2000) (``Bell Atlantic Remand Order'')). On April 27, 2001,
the Commission adopted an interim compensation mechanism
pertaining to the exchange of ISP-bound traffic. See Order on
Remand, 16 FCC Rcd at 9151. The established regime, however,
``applies as carriers renegotiate expired or expiring
interconnection agreements. It does not alter existing
contractual obligations, except to the extent that parties are
entitled to invoke contractual change-of-law provisions.'' Id.,
16 FCC Rcd at 9189, ¶ 82. The three interconnection agreements
involved in the instant proceeding do not contain change of law
provisions that would be triggered by the Order on Remand.
71 Starpower-Verizon Virginia Joint Statement at 4, ¶ 8; at 8, ¶¶
34, 37; Starpower-Verizon South Joint Statement at 4, ¶¶ 18-19.
See also Starpower-Verizon Virginia Complaint at 21-25;
Starpower-Verizon South Complaint at 13-17; Starpower-Verizon
Virginia Answer at 32-50; Starpower-Verizon South Answer at 20-
32; Starpower Supplemental Brief at 11-27; Brief of Defendants
Verizon Virginia Inc. and Verizon South Inc., File Nos. EB-00-MD-
19, -20 (``Verizon Brief'') at 4-13.
72 See 47 U.S.C. § 252(e)(5); Preemption Order, 15 FCC Rcd 11277,
11278, ¶ 5.
73 See Starpower Supplemental Brief at 12; Verizon Brief at 2,
n.2. See also Starpower-Verizon Virginia Complaint, Exhibit D
(First Starpower-Verizon Virginia Agreement) at 57, ¶ 29.5 (``The
construction, interpretation and performance of this Agreement
shall be governed by and construed in accordance with the laws of
the state in which this Agreement is to be performed [Virginia],
except for its conflict of laws provisions. In addition, insofar
as and to the extent federal law may apply, federal law will
control.''); Starpower-Verizon Virginia Complaint, Exhibit F
(MCImetro-Verizon Virginia Agreement) at Part A-7, ¶ 7.1 (``The
validity of this Agreement, the construction and enforcement of
its terms, and the interpretation of the rights and duties of the
Parties, shall be governed by the Act and the laws of the
Commonwealth of Virginia, without regard to its conflicts of laws
rules.''); Starpower-Verizon South Complaint, Exhibit A (MFS-
Verizon South Agreement) at 27, ¶ XIX.J (``This Agreement shall
be governed by and construed in accordance with the domestic laws
of the state of Virginia and shall be subject to the exclusive
jurisdiction of the courts therein.''). See generally
Southwestern Bell Tel. Co. v. PUC of Tex., 208 F.3d 475, 485 (5th
Cir. 2000) (applying Texas law in construing reciprocal
compensation provisions of interconnection agreements)
(``Southwestern Bell'').
74 American Spirit Ins. Co. v. Owens, 261 Va. 270, 275, 541
S.E.2d 553, 555 (2001). See also Berry v. Klinger, 225 Va. 201,
208, 300 S.E.2d 792, 796 (1983).
75 See, e.g., Lerner v. Gudelsky Co., 230 Va. 124, 132, 334
S.E.2d 579, 584 (1985) (``The writing is the repository of the
final agreement of the parties.''); Berry v. Klinger, 225 Va. at
208, 300 S.E.2d at 796 (a court must construe a contract's
``language as written'').
76 Ames v. American Nat'l Bank, 163 Va. 1, 38, 176 S.E. 204, 216
(1932).
77 Flippo v. CSC Assoc. III, L.L.C., 262 Va. 48, 64, 547 S.E.2d
216, 226 (2001) (quoting Christian v. Bullock, 215 Va. 98, 102,
205 S.E.2d 635, 638 (1974)).
78 Marriott v. Harris, 235 Va. 199, 215, 368 S.E.2d 225, 232
(1988); Paul v. Paul, 214 Va. 651, 653, 203 S.E.2d 123, 125
(1974). See Starpower Supplemental Brief at 15; Verizon Brief at
14.
79 Chas. H. Tompkins Co. v. Lumbermans Mut. Cas. Co., 732 F.
Supp. 1368, 1374 (E.D. Va. 1990) (applying Va. law) (``Chas. H.
Tompkins Co.''). See Piland Corp. v. REA Constr. Co., 672 F.
Supp. 244, 247 (E.D. Va. 1987); Va. Code Ann. § 8.1- 205(4)
(``The express terms of an agreement and an applicable course of
dealing or usage of trade shall be construed wherever reasonable
as consistent with each other; but when such construction is
unreasonable express terms control both course of dealing and
usage of trade and course of dealing controls usage of trade.'').
80 Chas. H. Tompkins Co., 732 F. Supp. at 1375.
81 Starpower-Verizon Virginia Complaint at 22; Starpower-Verizon
South Complaint at 14; Starpower Supplemental Brief at 12-16;
Starpower-Verizon Virginia Answer at 32-33; Starpower-Verizon
South Answer at 21-22; Verizon Brief at 2-3. We note, however,
that a contract is not rendered ambiguous simply because each
side argues that the contract plainly means the opposite of what
the other side contends. Dominion Savings Bank, FSB v. Costello,
257 Va. 413, 416, 512 S.E.2d 564, 566 (1999) (citing Ross v.
Craw, 231 Va. 206, 212-13, 343 S.E.2d 312, 316 (1986)).
82 Starpower-Verizon Virginia Complaint at 22-25; Starpower-
Verizon South Complaint at 14-17; Starpower Supplemental Brief at
11.
83 Verizon Virginia Answer at 34-37; Verizon South Answer at 21-
25; Verizon Brief at 13.
84 Starpower-Verizon Virginia Joint Statement at 3, ¶¶ 11, 13; at
6, ¶ 29; Starpower-Verizon Virginia Complaint, Exhibit D (First
Starpower-Verizon Virginia Agreement) at 8, ¶ 1.61; at 18, ¶
5.7.2.
85 Starpower-Verizon Virginia Joint Statement at 3-4, ¶ 14; at 6,
¶ 29; Starpower-Verizon Virginia Complaint, Exhibit D (First
Starpower-Verizon Virginia Agreement) at 18, ¶ 5.7.2.
86 Starpower-Verizon Virginia Joint Statement at 3, ¶ 13;
Starpower-Verizon Virginia Complaint, Exhibit D (First Starpower-
Verizon Virginia Agreement) at 18, ¶ 5.7.5 (emphasis added).
87 Starpower-Verizon Virginia Joint Statement at 7, ¶ 30
(emphasis added).
88 See Teleconnect Co. v. Bell Telephone Co. of Pa., Memorandum
Opinion and Order, 10 FCC Rcd 1626 (1995) (``Teleconnect''),
aff'd sub nom. Southwestern Bell Tel. Co. v. FCC, 116 F.3d 593
(D.C. Cir. 1997); Petition for Emergency Relief and Declaratory
Ruling Filed by BellSouth Corporation, Memorandum Opinion and
Order, 7 FCC Rcd 1619 (1992); Filing and Review of Open Network
Architecture Plans, Memorandum Opinion and Order, 4 FCC Rcd 1
(1988) (``ONA Plans Order''), aff'd sub nom. California v. FCC, 4
F.3d 1505 (9th Cir. 1993); In the Matter of Southwestern Bell
Telephone Company, Order Designating Issues for Investigation, 3
FCC Rcd 2339 (1988) (``SWBT Order'').
89 Teleconnect, 10 FCC Rcd at 1629, ¶ 12 (emphasis added).
90 ONA Plans Order, 4 FCC Rcd at 141, ¶ 274 (emphasis added).
See SWBT Order, 3 FCC Rcd at 2341, ¶ 28 (concluding that
``switching at the credit card switch is an intermediate step in
a single end-to-end communication'') (emphasis added).
91 Bell Atlantic Remand Order, 206 F.3d at 3.
92 Bell Atlantic Remand Order, 206 F.3d at 5.
93 See generally Va. Code Ann. § 8.1-205(2) (``A usage of trade
is any practice or method of dealing having such regularity of
observance in a place, vocation or trade as to justify an
expectation that it will be observed with respect to the
transaction in question.'').
94 Starpower Supplemental Brief, Attachment 1 (Declaration of
Gary J. Ball [``Ball Decl.''] at 6, ¶ 16). Although Starpower
does not make a similar admission with respect to the Second
Starpower-Verizon Virginia Agreement, the centrality of
jurisdiction cannot be disputed, given the agreement's specific
reference to the actual end-to-end ``jurisdictional nature'' of
calls. See Starpower-Verizon Virginia Joint Statement at 7, ¶
30.
95 Starpower Supplemental Brief, Attachment 1 (Ball Decl. at 6, ¶
16).
96 Our conclusion that the First Starpower-Verizon Virginia
Agreement invokes the Commission's end-to-end jurisdictional
analysis for determining reciprocal compensation obligations is
confirmed by the agreement's definition of ``Reciprocal
Compensation.'' Specifically, ``Reciprocal Compensation'' means
as ``As Described in the Act,'' which, in turn, means ``. . . as
from time to time interpreted in the duly authorized rules and
regulations of the FCC or the [Virginia SCC].'' See Starpower-
Verizon Virginia Joint Statement at 3, ¶¶ 11, 12; Starpower-
Verizon Virginia Complaint, Exhibit D (First Starpower-Verizon
Virginia Agreement) at 2, ¶ 1.7; at 8, ¶ 1.61.
97 See, e.g., MTS and WATS Market Structure, Memorandum Opinion
and Order, 97 FCC2d 682, 711, ¶ 78 (1983) (``[a]mong the variety
of users of access service are . . . enhanced service
providers''); Amendment of Part 69 of the Commission's Rules
Relating to Enhanced Service Providers, Notice of Proposed
Rulemaking, 2 FCC Rcd 4305, 4305, ¶ 1 (1987) (noting that ESPs
use ``exchange access service''); Southwestern Bell Tel. Co. v.
FCC, 153 F.3d 523, 543 (8th Cir. 1998) (affirming the
jurisdictionally-mixed nature of ISP-bound traffic).
98 Order on Remand, 16 FCC Rcd at 9178, ¶ 58. See also Order on
Remand, 16 FCC Rcd at 9175, ¶ 52 (``ISP traffic is properly
classified as interstate, and it falls under the Commission's
section 201 jurisdiction''). Because the Commission's treatment
of ISP-bound traffic for jurisdictional purposes has remained
consistent over time, there is no need for us to consider the
effect of any changes in the law regarding reciprocal
compensation for the delivery of ISP-bound traffic. See
Starpower Supplemental Brief at 27-35.
99 Starpower-Verizon Virginia Joint Statement at 3-4, ¶ 14;
Starpower-Verizon Virginia Complaint, Exhibit D (First Starpower-
Verizon Virginia Agreement ) at 6, ¶ 1.44.
100 Local Competition Order NPRM, 11 FCC Rcd at 14249, ¶ 230.
101 Starpower-Verizon Virginia Joint Statement at 7, ¶ 31.
102 47 C.F.R. § 51.701(b) (amended 2001).
103 Starpower Communications, LLC v. Verizon South Inc.;
Starpower Communications, LLC v. Verizon Virginia, Inc., File
Nos. EB-00-MD-019, EB-00-MD-020, Separate Statement of
Commissioner Kevin J. Martin, Approving in Part and Dissenting in
Part at 1-2 (citing Bell Atlantic Remand Order, 206 F.3d at 5)).
104 206 F.3d at 5-6.
105 Starpower-Verizon Virginia Complaint at 21-22; Starpower
Supplemental Brief at 18.
106 Starpower-Verizon Virginia Complaint at 34-35; Starpower
Supplemental Brief at 19. See also Starpower-Verizon Virginia
Complaint at 7, ¶ 20, 22; at 11, ¶ 39; at 13, ¶ 46; at 17-18, ¶¶
61-62; at 21, ¶ 73.
107 Starpower Supplemental Brief at 19.
108 Moreover, as Verizon Virginia correctly notes, Starpower was
not without a means to recover its costs of delivering ISP-bound
traffic, if such traffic were not eligible for compensation under
the agreements. See Verizon Brief at 12-13. Nothing prohibited
Starpower from looking to its ISP customers to recover its costs.
109 See Verizon Brief at 11-13.
110 See Starpower Supplemental Brief at 22-24.
111 See Verizon Brief at 14.
112 Starpower-Verizon Virginia Complaint at 33-34; Starpower-
Verizon South Complaint at 21-23; Starpower Supplemental Brief at
24-25.
113 Verizon Brief at 16-17.
114 See, e.g., Order on Remand, 16 FCC Rcd at 9158, ¶ 11; at
9176-77, ¶ 55; Declaratory Ruling, 14 FCC Rcd at 3703, ¶ 23.
115 See, e.g., Order on Remand, 16 FCC Rcd at 9158, ¶ 11;
Declaratory Ruling, 14 FCC Rcd at 3703, ¶ 23.
116 See, e.g., Order on Remand, 16 FCC Rcd at 9176, ¶ 55 n.105;
General Communication, Inc. v. Alaska Communications Systems
Holdings, Inc. and Alaska Communications Systems, Inc. d/b/a ATU
Telecommunications d/b/a Anchorage Telephone Utility, Memorandum
Opinion and Order, 16 FCC Rcd 2834, 2843, ¶ 22 (2001);
Declaratory Ruling, 14 FCC Rcd at 3692, ¶ 5.
117 Starpower-Verizon Virginia Complaint at 34-35; Starpower-
Verizon South Complaint at 23-27; Starpower Supplemental Brief at
24-26.
118 Preemption Order, 15 FCC Rcd at 11281, ¶ 9.
119 Declaratory Ruling, 14 FCC Rcd at 3704, ¶ 24.
120 Declaratory Ruling, 14 FCC Rcd at 3704, ¶ 24.
121 Starpower-Verizon Virginia Complaint at 31-35; Starpower-
Verizon South Complaint at 23-27; Starpower Supplemental Brief at
24-26.
122 Starpower-Verizon Virginia Complaint at 16-17, ¶ 58;
Starpower-Verizon South Complaint at 10-11, ¶ 34; Starpower
Supplemental Brief at 25-26. Starpower further observes that no
provision of the interconnection agreements requires segregation
of ISP-bound traffic, and that, in the absence of reciprocal
compensation for ISP-bound traffic, the parties would not be
compensated for transporting and terminating the traffic. Id.
We already addressed these assertions in connection with
Starpower's argument that the purpose, structure, and substance
of the agreements support its interpretation of the term ``Local
Traffic.'' See discussion, supra, paragraph 34.
123 Verizon Virginia Answer at 58.
124 See Declaratory Ruling, 14 FCC Rcd at 3704, ¶ 24.
125 Furthermore, we decline Starpower's invitation to consider
evidence regarding Verizon Virginia's negotiation of and
performance under the underlying MFS-Verizon Virginia and
MCImetro-Verizon Virginia Agreements. See Starpower Supplemental
Brief at 19-22. As stated above, course-of-performance evidence
cannot be used to contradict clear contractual language.
126 Starpower-Verizon Virginia Complaint at 18-20, ¶¶ 68-69; at
27-38; at 35-39; Starpower-Verizon South Complaint at 19-20; at
27-31; Starpower Supplemental Brief at 4; at 22-23; at 33-34.
127 See Starpower Supplemental Brief at 23-24.
128 Indeed, even decisions discussing agreements containing terms
that are virtually identical to the Starpower-Verizon Virginia
Agreements did not substantively address the import of the
language that we find to be controlling. See Complaint of MFS
Intelnet of Md., Inc. against Bell Atlantic-Maryland, Inc. for
Breach of Interconnection Terms and Request for Immediate Relief,
Case No. 8731, Order (Md. P.U.C. June 11, 1999) (``MFS/Bell
Atlantic''); Petition for Declaratory Order of TCG Delaware
Valley, Inc. for Clarification of Section 5.7.2. of Its
Interconnection Agreement with Bell Atlantic-Pennsylvania, Inc.,
Case No. P-00971256, Opinion and Order (Pa. P.U.C. June 16, 1998)
at 22-23.
129 Petition of Cox Virginia Telcom, Inc., Case No. PUC970069,
Final Order (Va. S.C.C. Oct. 27, 1997) (``Cox Virginia Telcom'')
at 2 (holding that ``calls to ISPs as described in the Cox
petition constitute local traffic under the terms of the
agreement between Cox and [Verizon Virginia] and that the
companies are entitled to reciprocal compensation for the
termination of this type of traffic'').
130 Starpower-Verizon Virginia Complaint at 29-31; Second
Supplemental Brief of Starpower Communications, LLC, File Nos.
EB-00-MD-19, -20 (filed May 30, 2001) (``Starpower Second
Supplemental Brief'') at 4-7; Reply Brief of Starpower
Communications, LLC, File Nos. EB-00-MD-19, -20 (filed June 6,
2001) (``Starpower Reply Brief'') at 3.
131 See, e.g., Angstadt v. Atlantic Mut. Ins. Co., 249 Va. 444,
446-47, 457 S.E.2d 86, 87 (1995) (citing Hampton Roads San. Dist.
v. City of Va. Beach, 240 Va. 209, 213, 396 S.E.2d 656, 658
(1990)). The parties urge us to apply Virginia law of collateral
estoppel rather than federal law. See Starpower-Verizon Virginia
Complaint at 31; Starpower Second Supplemental Brief at 4;
Verizon Virginia Answer at 55-56; Supplemental Reply Brief of
Verizon Virginia Inc. and Verizon South Inc., File Nos. EB-00-MD-
19, -20 (filed June 6, 2001) (``Verizon Supplemental Reply
Brief'') at 2. We need not decide whether Virginia law or
federal law controls, because federal law similarly requires that
an issue actually be litigated for collateral estoppel to apply.
See, e.g., 1B J. Moore, Federal Practice ¶ 0.405[1], pp. 622-24
(2d ed. 1974) (quoted in Parklane Hosiery Co. v. Shore, 439 U.S.
322, 327 (1979)).
132 Preemption Order, 15 FCC Rcd at 11281, ¶ 9 (emphasis added).
133 Starpower-Verizon South Joint Statement at 3, ¶ 10.
134 Starpower-Verizon South Joint Statement at 3, ¶ 11.
135 The parties agree that Verizon South's General Customer
Services Tariff is the tariff to which the relevant provisions of
the interconnection agreement refer. Starpower-Verizon South
Joint Statement at 3, ¶ 12; Letter from Aaron Panner, counsel for
Verizon, to David Strickland, Attorney-Advisor, Market Disputes
Resolution Division, Enforcement Bureau, File No. EB-00-MD-19
(dated Jan. 9, 2002).
136 Starpower-Verizon South Joint Statement at 3, ¶ 12.
137 Starpower-Verizon South Joint Statement at 3, ¶ 13.
138 Starpower-Verizon South Complaint at 14-17; Starpower
Supplemental Brief at 16-27.
139 Starpower-Verizon South Answer at 20-32; Verizon Brief at 4-
13.
140 Starpower-Verizon South Joint Statement at 3, ¶ 11.
141 Starpower-Verizon South Joint Statement at 7-8, ¶ 36.
142 Verizon South Answer at 35; Verizon Brief at 31-32.
143 Verizon South Answer at 24; Verizon Brief at 8-10.
144 Verizon South Answer at 24; Verizon Brief at 8 (citing
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, First Report and Order, 11 FCC
Rcd 15499 (1996) (subsequent history omitted) (``Local
Competition Order'')).
145 Local Competition Order, 11 FCC Rcd at 16013, ¶ 1034.
146 See discussion, supra, section III.C.
147 See discussion, supra, section III.C.
148 AT&T Communications of S. States, Inc. v. BellSouth
Telecommunications, 223 F.3d 457, 465 (4th Cir. 2000) (``AT&T v.
Bell South''). See Verizon South Answer at 24-25; Verizon Brief
at 9-10; Supplemental Brief of Verizon Virginia Inc. and Verizon
South Inc., File Nos. EB-00-MD-19, -20 (filed May 30, 2001)
(``Verizon Supplemental Brief'') at 2-3.
149 Id.
150 Id.
151 See Declaratory Ruling, 14 FCC Rcd at 3703, ¶ 24.