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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
Bell Atlantic-Delaware, Inc.; Bell )
Atlantic-Maryland, Inc.; Bell )
Atlantic-New Jersey, Inc.; Bell ) File No. EB-00-MD-009
Atlantic-Pennsylvania, Inc.; Bell )
Atlantic-Virginia, Inc.; Bell )
Atlantic-Washington, D.C., Inc.; )
Bell Atlantic-West Virginia, Inc.; )
New York Telephone Co.; and New )
England Telephone and Telegraph )
Co., )
)
Complainants, )
)
)
v.
Global NAPs, Inc.,
Defendant.
ORDER ON RECONSIDERATION
Adopted: April 22, 2002 Released: April 26, 2002
By the Commission:
I. INTRODUCTION
In this Order on Reconsideration, we deny a petition filed by
Global NAPs, Inc. (``Global NAPs'')1 seeking reconsideration of
the Commission's order2 granting a formal complaint brought by
various Verizon Communications, Inc. companies (collectively,
``Verizon'')3 against Global NAPs pursuant to section 208 of the
Communications Act of 1934, as amended (the ``Act'').4 For the
reasons discussed below, we conclude that, in the Order: (1) the
Commission did not err in ruling that Global NAPs' second tariff
imposing charges for the delivery of ISP-bound traffic (``Second
ISP Tariff'') was void ab initio under section 201(b) of the Act5
because it contradicted the parties' understanding that their
interconnection agreements alone would govern the payment of
inter-carrier compensation for the delivery of ISP-bound traffic;
(2) the Commission did not err in ruling that Global NAPs' Second
ISP Tariff was void ab initio under section 201(b) because it is
indeterminate, and (3) the Commission did not violate Global
NAPs' due process rights by basing its decision, in part, on a
legal theory not raised by Verizon.
II. BACKGROUND
This proceeding generally arises out of the same facts and
disputes that were the subject of the Commission's decision in
Bell-Atlantic-Delaware, Inc., et al. v. Global NAPs, Inc.,6
wherein the Commission held, inter alia, that Global NAPs' first
tariff seeking to impose charges for the delivery of ISP-bound
traffic (``First ISP Tariff'') was void ab initio under section
201(b) of the Act. The parties do not disagree about the
underlying facts that led to the filing of Verizon's complaint in
either Global NAPs I or this proceeding.7 Therefore, we
incorporate by reference the facts described in Global NAPs I and
the Order. 8
Certain core facts bear repeating here, however. In
Massachusetts and New Jersey, Global NAPs freely entered into
interconnection agreements with Verizon pursuant to sections 251
and 252 of the Act,9 knowing full well that it and Verizon
disagreed about whether the interconnection agreements required
Verizon to pay reciprocal compensation for Global NAPs' delivery
of ``ÍSP-bound traffic.''10 Global NAPs immediately and
vigorously pursued its rights under section 252 of the Act to
argue to the Massachusetts Department of Telecommunications and
Energy (``DTE'') and the New Jersey Board of Public Utilities
(``BPU'') that its interconnection agreements did, indeed,
require Verizon to pay reciprocal compensation for the delivery
of ISP-bound traffic. Many months thereafter (24 months with
respect to Massachusetts, seven months with respect to New
Jersey), Global NAPs filed with the FCC its First ISP Tariff,
which purported to require Verizon to pay compensation for Global
NAPs' delivery of ISP-bound traffic, if the applicable
interconnection agreement did not so require. Upon complaint by
Verizon, the Commission ruled, inter alia, that Global NAPs'
First ISP Tariff was void ab initio under section 201(b) of the
Act, which ruling was affirmed by the United Stated Court of
Appeals for the District of Columbia Circuit (``D.C. Circuit'').
After the Commission's release of Global NAPs I, Global NAPs
filed with the FCC its Second ISP Tariff. Although worded
somewhat differently than the First ISP Tariff, it purported to
accomplish the same result: require Verizon to pay compensation
for the delivery of ISP-bound traffic, if the applicable
interconnection agreement did not so require.
Both the Massachusetts DTE and the New Jersey BPU have held that
the Global NAPs/Verizon interconnection agreements do not require
reciprocal compensation for the delivery of ISP-bound traffic.
Thus, Global NAPs sought to obtain compensation from Verizon
pursuant to its Second ISP Tariff, whereupon Verizon filed the
instant complaint challenging the lawfulness of that Tariff.
In the Order, the Commission agreed with Verizon that the
challenged provisions of Global NAPs' Second ISP Tariff were void
ab initio under section 201(b) of the Act, for two reasons.
First, the filing of the Second ISP Tariff conflicts with the
parties' mutual understanding that their interconnection
agreements alone would govern whether Global NAPs would receive
compensation for the delivery of ISP-bound traffic.11 Second,
Global NAPs' Second ISP Tariff was indeterminate, in violation of
section 61.2 of our rules,12 which requires that tariffs be clear
and explicit as to their proper application.13
In its Petition, Global NAPs argues that the Order is flawed in
several ways. First, Global NAPs asserts that the Order's
finding of a mutual understanding not to file a federal tariff
imposing charges for the delivery of ISP-bound traffic lacks
record support and violates the Filed Rate Doctrine.14 Second,
Global NAPs asserts that its Second ISP Tariff is not
indeterminate.15 Third, Global NAPs contends that the Commission
lacked authority to declare the Second ISP Tariff void ab
initio.16 Fourth, Global NAPs maintains that Verizon lacks
standing to pursue this complaint, because it failed to pay
Global NAPs' bills.17 Finally, Global NAPs claims that the
Commission violated its own rules and Global NAPs' due process
rights by basing its decision, in part, on a legal theory not
raised by Verizon.18
The Petition also suggested that Global NAPs should have an
opportunity to submit evidence and argument regarding whether the
parties had understood that their interconnection agreements
alone would govern the issue of compensation for the delivery of
ISP-bound traffic.19 Commission staff granted Global NAPs that
opportunity,20 whereupon Global NAPs submitted an affidavit,
twelve exhibits, and supplemental briefing.21
For the reasons discussed below, we reject all of Global NAPs'
arguments and deny its petition for reconsideration. At bottom,
what the D.C. Circuit said about Global NAPs' First ISP Tariff
applies equally well to Global NAPs' Second ISP Tariff: ``That
GNAPs sought to game the existing rules, and lost, does not mean
the FCC was arbitrary and capricious in its application of its
own rules.''22
III. DISCUSSION
III.A. The Commission Did Not Err in Concluding That the
Parties Understood That Their Interconnection
Agreements Alone Would Govern Whether They Were
Entitled to Compensation for the Delivery of ISP-bound
Traffic.
The only new evidence proffered by Global NAPs in support of its
Petition relates to the Commission's conclusion that the parties
understood that their interconnection agreements alone would
govern whether they were entitled to compensation for the
delivery of ISP-bound traffic. Global NAPs argues that this
conclusion lacks factual support in the record, contradicts the
interconnection agreements themselves, and violates the Filed
Tariff Doctrine.23 To support these arguments, Global NAPs
submitted additional evidence in the form of an affidavit from
William J. Rooney, Global NAPs' General Counsel and chief
interconnection agreement negotiator, and correspondence between
the parties.24 In his affidavit, Mr. Rooney attests that there
was no separate understanding between the parties about the
filing of federal tariffs,25 and that in entering into the
interconnection agreements, he did not understand that Global
NAPs was waiving any rights.26 Mr. Rooney further opines that
the integration clause in the interconnection agreements
precludes the Commission from looking beyond the contract
language,27 and that such language expressly preserves Global
NAPs' right to file a federal tariff imposing charges for the
delivery of ISP-bound traffic.28 Global NAPs maintains,
therefore, that the Commission erred in concluding that, by
filing the Second ISP Tariff, Global NAPs acted unreasonably
under section 201(b), thereby voiding the Tariff ab initio. For
the following reasons, we disagree.
First, the Petition does not challenge the validity of the facts
on which the Order concluded ``that the parties agreed and
understood that their interconnection agreements alone would
decide the question of inter-carrier compensation for the
delivery of ISP-bound traffic.''29 In particular, although
Global NAPs knew that Verizon interpreted its pre-existing
interconnection agreements with other carriers in Massachusetts
and New Jersey as not requiring compensation for the delivery of
ISP-bound traffic, Global NAPs chose to opt into those agreements
rather than negotiate different agreements with Verizon.30 In
other words, rather than reaching its own agreement with Verizon
on the question of compensation for the delivery of ISP-bound
traffic, Global NAPs opted into arguably ambiguous preexisting
interconnection agreements between Verizon and other carriers
that did not have any language explicitly addressing the ISP-
bound traffic issue.31 Global NAPs then chose, pursuant to
sections 251 and 252 of the Act, to have the Massachusetts and
New Jersey commissions decide the issue under the terms of the
preexisting agreements. Global NAPs vigorously maintained in
these state proceedings that (i) the interconnection agreements
addressed the issue of compensation for the delivery of ISP-bound
traffic, and (ii) the agreements required compensation for such
delivery.32 Indeed, Global NAPs continues to maintain this
position today in its appeals of the Massachusetts and New Jersey
proceedings.33 Finally, Global NAPS did not file its First ISP
Tariff until 24 months after opting into the Massachusetts
agreement and seven months after opting into the New Jersey
agreement.34 We continue to believe that these uncontested facts
strongly support the Order's conclusion that the parties
understood their interconnection agreements to be the exclusive
source of compensation rights for the delivery of ISP-bound
traffic. Thus, these facts also support the Order's holding
that, ``when the Massachusetts DTE and New Jersey Board of Public
Utilities found that Global NAPs' interconnection agreements with
Verizon did not require compensation for such traffic, it was
unjust and unreasonable for Global NAPs in the particular
circumstances here to attempt to use this Commission's tariff
system to impose a separate compensation regime of its own.''35
Contrary to Global NAPs' contentions, we find that the additional
evidence it submitted only reinforces the Order's conclusions.
Indeed, some of this evidence even highlights, in our view, that
the filing of Global NAPs' Second ISP Tariff was merely a
continuation of its prior failed effort to ``game'' the system in
which it voluntarily participated.36
Before we examine Global NAPs' supplemental evidence in detail,
we note that our authority to evaluate whether Global NAPs'
conduct was unjust and unreasonable under section 201(b) is not
limited to a narrow application of contract law principles.37
Consequently, our evaluation of the facts and circumstances in
this case properly entails a broader assessment of the justness
and reasonableness of Global NAPs' conduct.
Global NAPs points out that the interconnection agreements
contain ``integration'' clauses, which, according to Global NAPs,
preclude the Commission from relying on any exogenous
understanding between the parties regarding the agreements'
scope.38 We do not believe that the integration clauses restrain
our section 201(b) analysis in that manner, because the
interconnection agreements simply do not expressly address the
propriety of filing a federal tariff for the delivery of ISP-
bound traffic. Therefore, the understanding found in the Order
does not conflict with any provision of the Agreements.
Global NAPs further contends that the interconnection agreements
do, in fact, expressly preserve its right to file a federal
tariff regarding compensation for the delivery of ISP-bound
traffic.39 Specifically, Global NAPs contends that, if ISP-bound
traffic is not ``local'' traffic covered by the reciprocal
compensation terms of its interconnection agreements, then it is
a species of switched access traffic, which its interconnection
agreements ``expressly and unambiguously defer[s] to any
applicable tariffs.''40 Although read in isolation the
applicable provisions of the interconnection agreements may seem
to mean what Global NAPs contends, we cannot conclude that Global
NAPs' construction of the agreements is tenable and that the
interconnection agreements are express and unambiguous. In this
regard, we note that the relevant language refers to switched
access traffic, yet the interconnection agreements do not
expressly identify ISP-bound traffic as a species of switched
access traffic and the Commission has not expressly identified
ISP-bound traffic as switched access traffic. In addition,
Global NAPs' conduct, as described above41 belies its proferred
interpretation. Indeed, had Global NAPs truly believed all along
that it had a right under the interconnection agreements to file
a federal tariff charging for the delivery of ISP-bound traffic,
it surely would have done so immediately, rather than waiting
many months (and years, in the case of Massachusetts). Global
NAPs has shown itself to be an extremely aggressive defender of
its alleged rights,42 so Global NAPs' tardiness in exercising
this supposed ``right'' speaks volumes. Consequently, this
argument does not alter our interpretation of the facts and
circumstances in this record and our conclusion.
In addition, according to Global NAPs' own evidence, in executing
the Massachusetts agreement, Rooney stated in writing: ``I
understand that my client [Global NAPs] will be treated like all
other carriers on this issue [reciprocal compensation for the
delivery of ISP-bound traffic].''43 As far as this record shows,
no other carrier with which Verizon had a similar interconnection
agreement has filed a federal tariff charging for the delivery of
ISP-bound traffic. Furthermore, the record reflects that Verizon
has not paid compensation for the delivery of ISP-bound traffic
to any other carrier in Massachusetts or New Jersey having a
similar agreement.44 Moreover, Verizon has not requested
compensation for terminating ISP-bound traffic in the manner
sought by Global NAPs.45 In sum, Global NAPs expressly agreed
that it would be treated the same as all other similarly situated
carriers, and no such carrier received compensation for the
delivery of ISP-bound traffic or filed a federal tariff seeking
to obtain such compensation. Accordingly, we do not believe that
the interconnection agreements themselves allowed Global NAPs to
file the Second ISP Tariff.46
Finally, we do not find that the Rooney Affidavit's other
assertions and conclusions undermine the Order, given all of the
undisputed facts described above. Mr. Rooney's affidavit
generally restates the factual record and provides little, if
any, new or additional factual evidence from that previously
introduced. His affidavit primarily reflects his subjective
opinions and characterization of the factual record, while
arguing for the Commission to adopt a different methodology than
it did in analyzing the facts.47 Thus, we find Mr. Rooney's
characterization and subjective view of the facts unavailing.48
To summarize, the Petition does not convince us that the
Commission erred in concluding that the parties understood that
their interconnection agreements alone would govern the issue of
compensation for the delivery of ISP-bound traffic. Consequently,
we reject the Petition's contention that this conclusion failed
to support the Commission's decision to void the Second ISP
Tariff ab initio as violative of section 201(b).49
III.B. The Commission Did Not Err in Concluding That the
Challenged Tariff Provisions Are Unlawfully
Indeterminate.
Under Global NAPs' Second ISP Tariff, a carrier is charged
whenever it delivers traffic to Global NAPs for further delivery
to an ISP, unless the originating carrier has already made
``Alternative Payments.''50 These ``Alternative Payments'' for
the termination of ISP-bound calls must occur under two
scenarios: (1) where the LEC (and presumably Global NAPs)
``treats'' the ISP-bound traffic as local; or (2) where ``state
regulators ... direct other payment arrangements ....''51
The Order concludes that these Tariff provisions are unlawfully
indeterminate under section 201(b) of the Act and section 61.2 of
the Commission's rules, because a carrier cannot discern from the
face of these provisions whether it has incurred any charges
thereunder.52 In particular, under the ``Alternative Payments''
language of the Tariff, a carrier must first determine whether it
has made any payments to Global NAPs, and, if so, it then must
attempt to determine whether the payment was for the delivery of
ISP-bound traffic and whether it occurred pursuant to an
interconnection agreement, a state-directed payment arrangement,
or some other scenario. Thus, it is unlawfully impossible to
determine, from the face of the Second ISP Tariff, whether the
Tariff requires payment for the delivery of ISP-bound traffic.
Global NAPS challenges this conclusion, but in doing so offers no
new arguments or evidence. Reconsideration is appropriate only
where the petitioner either shows a material error or omission in
the original order or raises additional facts not known or
existing until after the petitioner's last opportunity to present
such matters.53 The Global NAPs Petition fails to satisfy either
requirement. For this reason alone, we deny the Petition's
arguments regarding the Tariff's ambiguity.
Moreover, the Order's conclusion that the Second ISP Tariff is
unlawfully indeterminate is supported by the D.C. Circuit's
subsequent affirmance of the Commission's conclusion in Global
NAPs I that Global NAPs' First ISP Tariff was unlawfully
indeterminate.54 Although different wording is used, we construe
the relevant language in the Second ISP Tariff to mean
essentially the same things as the unlawful language in the First
ISP Tariff: in order to determine whether the Second ISP Tariff
requires payment for the delivery of ISP-bound traffic, a carrier
would have to (1) consult its checkbook, and (2) consult its
interconnection agreement to determine if payment was made
pursuant to that agreement, and (3) consult any relevant state
commission decisions to determine if payment was made pursuant
thereto.55 In other words, as the D.C. Circuit stated regarding
the First ISP Tariff, ``[a]ny reasonable construction of the
tariff's language would require a customer to consult the
interconnection agreement to determine whether the tariff
applied.''56 This violates our rule prohibiting fundamental
facial ambiguity.
The D.C. Circuit's affirmance of Global NAPs I further supports
the Commission's conclusion invalidating the Second ISP Tariff on
other grounds not previously noted in the Order. In Global NAPs
I, the Commission held, inter alia, that ``any federal tariff
purporting to govern inter-carrier compensation for ISP-bound
traffic could be reasonable only if it mirrors any applicable
terms of the parties' interconnection agreement ....''57 Based
upon this rationale, the Commission concluded that Global NAPs'
First ISP Tariff was unjust and unreasonable, inter alia, because
it purported to require payment for the delivery of ISP-bound
traffic even when an applicable interconnection agreement
required no such payment, e.g., a bill and keep arrangement.58
We find that Global NAPs' Second ISP Tariff suffers from this
same fatality, because it purports to require compensation for
the delivery of ISP-bound traffic even when an applicable
interconnection agreement requires the contrary.59 Consequently,
we deny Global NAPs' request for reconsideration for this reason,
as well.
III.C. The Commission Did Not Err By Invalidating the
Second ISP Tariff Ab Initio.
Global NAPs argues that the Commission exceeded its authority by
voiding the Second ISP Tariff ab initio, which also led the
Commission erroneously (i) to overlook Verizon's lack of standing
and (ii) to fail to determine a reasonable reciprocal
compensation rate.60 Global NAPs simply rehashes its prior
arguments on these issues, and does not raise any new arguments
or offer any new evidence. Moreover, the D.C. Circuit has
squarely rejected these very same arguments.61 Thus, we deny
Global NAPs' request for reconsideration of these issues.
Global NAPS also argues that the Filed Rate Doctrine precludes us
from rendering its filing of the Second ISP Tariff unlawful based
on a pre-existing understanding between the parties.62 In making
this argument, Global NAPs simply rehashes its prior arguments on
this issue in support of its Petition, without offering anything
new to demonstrate a material error or omission in the original
order. For this reason alone, we deny the Petition's arguments
regarding the Filed Rate Doctrine. Moreover, contrary to Global
NAPs' argument, the Filed Rate Doctrine does not insulate tariffs
from legal challenges under section 201(b).63 As the Order
explained, "it is well established that the rates and practices
carriers seek to shelter pursuant to the Filed Rate Doctrine are
always subject to an inquiry into their reasonableness."64
Therefore, for all of the reasons previously stated above and in
the Order, we reject Global NAPs' Filed Rate Doctrine argument.
III.D. The Commission Did Not Violate Global NAPs' Due
Process Rights.
Global NAPs argues that the Order violated the Commission's own
rules and, consequently, Global NAPs' due process rights, because
``[t]he question whether Global NAPs contracted away its right to
be paid for ISP-bound calls - under any theory - was never raised
or briefed by the parties.''65 Global NAPs maintains, in other
words, that the Commission cannot base its holding in a section
208 proceeding on a legal theory not specifically advanced by the
complainant.
Global NAPs' contention lacks merit, for several reasons. First,
the D.C. Circuit has squarely held that the Commission can base
its holding in a section 208 proceeding on a legal theory not
specifically advanced by the complainant, where the defendant has
a fair opportunity to address the theory on reconsideration.66
Here, during the reconsideration phase of this proceeding,
Commission staff afforded Global NAPs ample opportunity to
provide evidence and argument regarding the parties'
understanding of the interconnection agreements' scope; and
Global NAPs took full advantage of that opportunity. 67
Moreover, as explained at length in the Global NAPs I Recon
Order, the Commission has discretion to consider an argument not
raised by the parties, if such consideration is necessary to
decide a complaint correctly.68 In any event, Verizon did, in
fact, raise arguments regarding the scope and effect of the
interconnection agreements that fairly resemble, if not precisely
mirror, the arguments on which the Order relies.69 Accordingly,
we reject the contention that the Order violated Global NAPs' due
process rights.
IV. CONCLUSION
Having found, and been upheld in our determination, that Global
NAPs must lose in its first attempt to ``game'' the system in
which it voluntarily participated, we find that the Petition
fails to demonstrate why Global NAPs' second attempt should fare
any better. Consequently, for all of the reasons stated above
and in the Order, we deny the Petition.
V. ORDERING CLAUSE
Accordingly, IT IS ORDERED that, pursuant to sections 1, 4(i),
4(j), 201(b), 203(c), 208, and 405 of the Communications Act of
1934, as amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b),
203(c), 208, 405, and section 1.106 of the Commission's rules, 47
C.F.R. § 1.106, that the Petition for Reconsideration filed by
Global NAPs, Inc. IS DENIED.
FEDERAL COMMUNICATIONS COMMISSION
Marlene H. Dortch
Secretary
_________________________
1 Petition for Reconsideration of Global NAPs, Inc., Bell
Atlantic-Delaware, et al. v. Global NAPs, Inc., File No. EB-00-
MD-009 (filed Nov. 27, 2000) (Global NAPs Petition or Petition).
See 47 U.S.C. § 405(b)(1); 47 C.F.R. § 1.106.
2 Bell Atlantic-Delaware, et al. v. Global NAPs, Inc.,
Memorandum Opinion and Order, FCC 00-383, 2000 WL 1593346 (rel.
Oct. 26, 2000) (Order).
3 After commencement of this proceeding, Bell Atlantic
Corporation changed its name to Verizon Communications, Inc.
Thus, the former Bell Atlantic entities named in the caption are
collectively referred to herein as ``Verizon.''
4 47 U.S.C. § 208.
5 47 U.S.C. § 201(b).
6 Bell-Atlantic-Delaware, Inc., et al. v. Global NAPs, Inc.,
Memorandum Opinion and Order, 15 FCC Rcd 12946 (1999) (Global
NAPs I), recon denied, Order on Reconsideration, 15 FCC Rcd 5997
(2000) (Global NAPs I Recon Order), aff'd sub nom., Global NAPs,
Inc. v. FCC, 247 F.3d 252 (D.C. Cir. 2001), cert. denied, 122
S.Ct. 808 (2002).
7 See Global NAPs I Recon Order, 15 FCC Rcd at 5998, ¶ 2 and
n.6; Order, 2000 WL 1593346 at ¶¶ 2-8.
8 See Global NAPs I, 15 FCC Rcd at 12947-55; Order, 2000 WL
1593346 at ¶¶ 2-8.
9 47 U.S.C. §§ 251-52.
10 In this context, ``ISP-bound traffic'' consists of calls
made by customers of Verizon to customers of Global NAPs that
are Internet Service Providers.
11 Order, 2000 WL 1593346 at ¶¶ 10-21.
12 47 C.F.R. § 61.2.
13 Order, 2000 WL 1593346 at ¶¶ 22-25.
14 Global NAPs Petition at 8-17; Reply Brief in Support of
Petition for Reconsideration, Bell Atlantic-Delaware, et al. v.
Global NAPs, Inc., File No. EB-00-MD-009 (filed Dec. 14, 2000)
(Global NAPs Reply Brief) at 1; Supplemental Reply Brief of
Global NAPs, Inc., Bell Atlantic-Delaware, et al. v. Global
NAPs, Inc., File No. EB-00-MD-009 (filed June 8, 2001) (Global
NAPs Supplemental Reply Brief) at 2-3; Supplemental Reply Brief
of Global NAPs, Inc., Bell Atlantic-Delaware, et al. v. Global
NAPs, Inc., File No. EB-00-MD-009 (filed Nov. 13, 2001) (Global
NAPs Second Supplemental Reply Brief) at 1-3.
15 Global NAPs Petition at 17-19. See Global NAPs Reply Brief
at 2, 5-6.
16 Global NAPs Petition at 22-24. See Global NAPs Reply Brief
at 2-5.
17 Global NAPs Petition at 19-24. See Global NAPs Reply Brief
at 4.
18 Global NAPs Petition at 5-8. See Global NAPs Reply Brief
at 6-9.
19 Global NAPs Petition at 8 and 11 n.14.
20 Letter from William H. Davenport, Attorney, Market Disputes
Resolution Division, Enforcement Bureau, to Christopher W.
Savage, Counsel for Global NAPs, and Lawrence W. Katz, Counsel
for Verizon, Bell Atlantic-Delaware, Inc., et al. v. Global
NAPs, Inc., File No. EB-00-MD-009 (filed May 2, 2001); Letter
from Anthony J. DeLaurentis, Attorney, Market Disputes
Resolution Division, Enforcement Bureau, to Christopher W.
Savage, Counsel for Global NAPs, and Lawrence W. Katz, Counsel
for Verizon, Bell Atlantic-Delaware, Inc., et al. v. Global
NAPs, Inc., File No. EB-00-MD-009 (filed Sept. 18, 2001); Letter
from Anthony J. DeLaurentis, Attorney, Market Disputes
Resolution Division, Enforcement Bureau, to Christopher W.
Savage, Counsel for Global NAPs, and Lawrence W. Katz, Counsel
for Verizon, Bell Atlantic-Delaware, Inc., et al. v. Global
NAPs, Inc., File No. EB-00-MD-009 (filed Sept. 19, 2001); Letter
from Anthony J. DeLaurentis, Attorney, Market Disputes
Resolution Division, Enforcement Bureau, to Christopher W.
Savage, Counsel for Global NAPs, and Lawrence W. Katz, Counsel
for Verizon, Bell Atlantic-Delaware, Inc., et al. v. Global
NAPs, Inc., File No. EB-00-MD-009 (filed Oct. 3, 2001).
21 Supplemental Brief of Global NAPs, Inc., Bell Atlantic-
Delaware, et al. v. Global NAPs, Inc., File No. EB-00-MD-009
(filed May. 25, 2001) (Global NAPS Supplemental Brief); Global
NAPs Supplemental Reply Brief; Supplemental Brief of Global
NAPs, Inc., Bell Atlantic-Delaware, et al. v. Global NAPs, Inc.,
File No. EB-00-MD-009 (filed Oct. 5, 2001) (Global NAPs Second
Supplemental Brief); Global NAPs Second Supplemental Reply
Brief.
22 Global NAPs v. FCC, 247 F.3d at 257.
23 See Global NAPs Petition at 8-17. See also Global NAPs
Reply Brief at 1, 5; Global NAPs Second Supplemental Brief at 3-
4; Global NAPs Second Supplemental Reply Brief at 1-3.
24 See Global NAPs Second Supplemental Brief, Attachment,
Affidavit of William J. Rooney (Rooney Affidavit). The Rooney
Affidavit attaches 12 documents reflecting correspondence
between the parties during the relevant timeframe.
25 See Rooney Affidavit at ¶ 3.
26 Id. at ¶ 13.
27 Rooney Affidavit at ¶ 12.
28 Id. at ¶ 15.
29 Order, 2000 WL 1593346 at ¶ 12.
30 Order, 2000 WL 1593346 at ¶ 13.
31 Id.
32 Id.
33 See Order, 2000 WL 1593346, at ¶ 13, n.31.
34 Global NAPs sought to enter into interconnection agreements
in Massachusetts and New Jersey in April 1997 and June 1998,
respectively, but did not file its First ISP Tariff until April
1999. See Global NAPs I, 15 FCC Rcd at 12947, 12951; Order,
2000 WL 1953346 at 4-5.
35 Order, 2000 WL 1593346 at ¶ 14.
36 See, e.g., Global NAPs v. FCC, 247 F.3d at 260.
37 See, e.g., id. at 258; Hi-Tech Furnace Systems, Inc. v.
FCC, 224 F.3d 781, 793 (D.C. Cir. 2000)(although factors in
evaluating tariff revisions may resemble contract law
principles, ``they are not intended to replicate a contract law
analysis''); Cahnman v. Sprint Corporation, 133 F.3d 484, 488
(7th Cir. 1998)(FCC uses the principle of reasonableness to
determine the validity of a tariff when it is challenged).
38 See Petition at 9-10.
39 See Petition at 10-13.
40 See Petition at 10-11. Specifically, Global NAPs references
a provision of the Massachusetts' interconnection agreement that
states: ``All Switched Exchange Access Service and all IntraLATA
Toll Traffic shall continue to be governed by the terms and
conditions of the applicable federal and state tariffs,''
Massachusetts Agreement at ¶ 5.7.3, and provisions in the New
Jersey Agreement that state: ``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,'' New Jersey Agreement at ¶ 5.7.3, and ``Compensation
for the transport and termination of traffic not specifically
addressed in this section 5.7 shall be as provided elsewhere in
this Agreement, or if not so provided, as required by the Tariffs
of the Party transporting and/or terminating the traffic'' New
Jersey Agreement at ¶ 5.7.
41 See ¶ 11, supra.
42 See Global NAPs, Inc. Petition to Intervene, In MCI WorldCom
Technologies, Inc., D.T.E. 97-116 (Mass. D.T.E. filed Mar. 4,
1999); Complaint of Global NAPs, Inc. against New England
Telephone and Telegraph Company d/b/a Bell Atlantic
Massachusetts, DTE 99-39 (Mass. D.T.E. filed Apr. 16, 1999);
Pleading Cycle Established for Comments on Global NAPs South,
Inc. Petition for Preemption of the Jurisdiction of the
Pennsylvania Public Utility Commission Regarding Interconnection
Dispute with Bell Atlantic-Pennsylvania, Public Notice, DA 99-
900, 14 FCC Rcd 7412 (rel. May 13, 1999); Global NAPs Petition
for Preemption of the Jurisdiction of the Virginia State
Corporation Commission Regarding Interconnection Dispute with
Bell Atlantic-Virginia, Memorandum Opinion and Order, 15 FCC Rcd
23318 (1999); Global NAPs Petition for Preemption of the
Jurisdiction of the New Jersey Board of Public Utilities
Regarding Interconnection Dispute with Bell Atlantic-New Jersey,
Memorandum Opinion and Order, 14 FCC Rcd 12530 (1999); Global
NAPs Petition for Preemption of the Jurisdiction of the
Massachusetts Department of Telecommunications and Energy
Regarding Interconnection Dispute with New England Telephone and
Telegraph Company, Memorandum Opinion and Order, 15 FCC Rcd 4943
(2000); Global NAPs Petition for Preemption of the Jurisdiction
of the Massachusetts Department of Telecommunications and Energy
Regarding Interconnection Dispute with New England Telephone and
Telegraph Company, Order on Review, 16 FCC Rcd. 4976 (2001);
Global NAPs, Inc. v. New England Tel. & Tel. Co., et al., CA No.
00-CV-10407-RCL (D. Mass. 2000); Global NAPs, Inc. v. New England
Tel. & Tel. Co., et al., CA No. 00-CV-10502-RCL (D. Mass. 2000);
Global NAPs, Inc. v. Bell Atlantic-New Jersey, Inc., Civ. No. 99-
4074 (JAG) (D.N.J. filed Aug. 26, 1999); Petition for Review,
Global NAPs, Inc. v. FCC, Case No. 01-1192 (D.C. Cir. filed Apr.
20, 2001).
43 Global NAPs Second Supplemental Brief, Attachment - Letter
dated April 15, 1997 from William J. Rooney, Counsel for Global
NAPs to Bruce P. Beausejour, Counsel for Verizon. Rooney wrote
this statement in response to a letter from Verizon that stated,
in pertinent part: ``Global NAPs would thereafter be treated in
the same manner with respect to the payment of reciprocal
compensation for traffic that terminates to Internet providers
as will other carriers having similar agreements, and in the
same manner as Verizon will request compensation for terminating
such traffic of other carriers.'' Global NAPs Second
Supplemental Brief, Attachment - Letter dated April 14, 1997
from Bruce P. Beausejour, Counsel for Verizon, to William J.
Rooney, Counsel for Global NAPs.
44 See Second Supplemental Brief of Verizon Communications,
Inc., Bell Atlantic-Delaware, et al. v. Global NAPs, Inc., File
No. EB-00-MD-009 (filed Oct. 29, 2001), at 12.
45 Id.
46 The New Jersey BPU apparently shares our view of the New
Jersey interconnection agreement. In ruling that the agreement
did not require Verizon to compensate Global NAPs for the
delivery of ISP-bound traffic, the New Jersey BPU remarked that
it expected Global NAPs in the future to obtain such
compensation - not from Verizon via a federal tariff - but
rather from its own end-user customers, including ISPs, via a
state tariff (or perhaps contract). In the Matter of the
Petition of Global NAPs, Inc. for the Arbitration of
Interconnection Rates, Terms, Conditions and Related
Arrangements with Bell Atlantic-New Jersey, Inc. Pursuant to
Section 252(b) of the Telecommunications Act of 1996, Decision
and Order of the New Jersey Board of Public Utilities (rel. July
7, 1999), at 11. See Formal Complaint, Bell Atlantic-Delaware,
et al. v. Global NAPs, Inc., File No. EB-00-MD-009 (filed June
1, 2000) (Verizon Formal Complaint) at Attachment J.
47 Compare Rooney Affidavit at ¶¶ 5-6, 13-15 with Chronology
of Events, Bell Atlantic-Delaware, et al. v. Global NAPs, Inc.,
File No. EB-00-MD-009 (filed Aug. 11, 1999), and Joint Statement
of Stipulated Facts, and Key Legal Issues Pursuant to Section
1.732(h) and Joint Statement Pursuant to Section 1.733(7)(b)(2),
Bell Atlantic-Delaware, et al. v. Global NAPs, Inc., File No. EB-
00-MD-009 (filed June 27, 2000) at 1-13.
48 Global NAPs also argues that we should reconsider the Order
because its underlying policy preference favoring
interconnection agreements as the context in which to address
compensation for ISP-bound traffic was rejected in the
Commission's subsequent ISP Remand Order. See Global NAPs
Supplemental Brief at 2-4; Global NAPs Supplemental Reply Brief
at 1-2; Global NAPs Second Supplemental Brief at 2-3; Global
NAPs Second Supplemental Reply Brief at 4-5. Contrary to Global
NAPs' contention, however, the Order was not premised upon a
policy preference that interconnection agreements address
compensation for the delivery of ISP-bound traffic. Rather, the
Order found that Global NAPs' conduct in filing a tariff
contradictory to its prior understanding that the parties'
interconnection agreements alone would govern the question of
compensation for ISP-bound traffic was unjust and unreasonable.
The Order states that ``[i]t would be unjust and unreasonable to
allow the issue of inter-carrier compensation for delivery of
ISP-bound traffic to be subject to one outcome under a carrier's
interconnection agreements and another pursuant to a federal
tariff.'' Order, 2000 WL 1593346 at ¶ 15. Nothing in the ISP
Remand Order alters this conclusion.
49 Global NAPs further argues that the Commission's Order
erroneously assumes that section 203 of the Act, 47 U.S.C. § 203,
does not require or even permit Global NAPs to file a federal
tariff imposing charges for delivering ISP-bound traffic. Global
NAPs Second Supplemental Reply at 4. This argument misses the
mark, however, as the Order does not make any determination
regarding whether section 203 required or permitted Global NAPs
to file the Second ISP-Tariff. Rather, the Order simply assumes
that section 203 allowed Global NAPs to file the Tariff, but
holds, nevertheless, that the Tariff was void ab initio under
section 201(b) because it conflicts with the parties'
understanding with respect to compensation for the delivery of
ISP-bound traffic. See Order, 2000 WL 1593346 at 14; see also
Global NAPs I, 12 FCC Rcd at 12958. Consequently, Global NAPs'
argument about section 203 does not alter the Commission's
conclusions.
50 Second ISP Tariff at 82, Section 7.2, Verizon Formal
Complaint at Attachment A.
51 Id.
52 Order, 2000 WL 1593346 at ¶¶ 22-25. Section 61.2 of the
Commission's rules provides, in pertinent part: ``In order to
remove all doubt as to their proper application, all tariff
publications must contain clear and explicit explanatory
statements regarding the rates and regulations.'' 47 C.F.R. §
61.2.
53 See, e.g., WWIZ, Inc., 37 FCC 685, 686, aff'd sub nom.,
Lorrain Journal Co., v. FCC, 351 F.2d 824 (D.C. Cir. 1965),
cert. denied, 383 U.S. 967 (1966); 47 C.F.R. § 1.106.
54 Global NAPs v. FCC, 247 F.3d at 258.
55 See Order, 2000 WL 1593346, ¶ 23 and n.57 (``Mere ipse
dixit statements that a tariff is self-contained, ... do not
eliminate the references to voluntary and state-directed
`arrangements.'''). See also, id. at ¶ 24.
56 Global NAPs v. FCC, 247 F.3d at 258.
57 Global NAPs I, 15 FCC Rcd at 12959, ¶ 23.
58 Id.
59 See Global NAPs I, 15 FCC Rcd 15 12959, ¶ 23.
60 See Global NAPs Petition at 19-24; Global NAPs Reply at 2-
4; Global NAPs Supplemental Brief at 4-5; Global NAPs Second
Supplemental Reply Brief at 4-5.
61 Global NAPs v. FCC, 247 F.3d at 259-60.
62 See Global NAPs Petition at 14-17; Global NAPs Reply at 4-
5; Global NAPs Second Supplemental Brief at 3-4.
63 Order, 2000 WL 1593346 at ¶¶ 19-21. The only authority
cited by Global NAPs merely holds that claims brought in court
pursuant to state law concerning matters covered in a federal
tariff are barred by the Filed Rate Doctrine. Global NAPs
Petition at 15, n.17 (citing Fax Telecommunications, Inc. v.
AT&T, 138 F.3d 479 (2nd Cir. 1998)). That authority does not
hold that claims brought at the Commission pursuant to section
201(b) of the Act are so barred.
64 Order, 2000 WL 1593346 at ¶ 20.
65 Global NAPs Petition at 2; see id. at 5-8; Global NAPs
Reply Brief at 1, 6-9; Global NAPs Supplemental Reply Brief at
2-3; Global NAPs Second Supplemental Brief at 3; Global NAPs
Second Supplemental Reply Brief at 1-2.
66 Global NAPs v. FCC, 247 F.3d at 257.
67 See note \* MERGEFORMAT 21, supra.
68 Global NAPs I Recon Order, 15 FCC Rcd at 5999-6002, ¶¶ 6-
12. The D.C. Circuit did not reach this aspect of the
Commission's decision.
69 Verizon Formal Complaint at 6, 10-12, ¶¶ 10, 17-20. See
Complainants Initial Brief, Bell Atlantic-Delaware, Inc. et al.
v. Global NAPs, Inc. File No. EB-00-MD-009 (filed July 28, 2000)
at 5; Bell Atlantic's Brief on Non-Cost Issues, Bell Atlantic-
Delaware, Inc. et al. v. Global NAPs, Inc. File No. E-99-22
(filed Sept. 2, 1998) at 10-12; Bell Atlantic Reply Brief on
Non-Cost Issues, Bell Atlantic-Delaware, Inc. et al. v. Global
NAPs, Inc. File No. E-99-22 (filed Sept. 15, 1999) at 3-7.