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                           Before the
                Federal Communications Commission
                     Washington, D.C.  20554


In the Matter of                 )
                                )
COX VIRGINIA TELCOM, INC.,       )
                                )
          Complainant,           )
                                )
                    v.           )    File No. EB-01-MD-006
                                )
VERIZON SOUTH INC.,              )
                                )
          Respondent.            )


                  MEMORANDUM OPINION AND ORDER

   Adopted:  May 2, 2002                Released:  May 10, 2002

By the Commission:

I.   INTRODUCTION

     1.   In this Order, we grant a formal complaint that Cox 
Virginia Telcom, Inc. (``Cox'') filed against Verizon South Inc.1 
(``Verizon South'') pursuant to sections 208 and 252(e)(5) of the 
Communications Act of 1934, as amended (``Act'').2  In its 
complaint, Cox seeks to recover, pursuant to an interconnection 
agreement with Verizon South (``Agreement''), payment of 
reciprocal compensation for the delivery of traffic bound for 
Internet service providers (``ISPs'').

     2.   As discussed below, we conclude that the Agreement 
obligates Verizon South to pay reciprocal compensation for the 
delivery of ISP-bound traffic.  We further find that, prior to 
April 6, 2001, Verizon South waived its right to object to being 
billed for end-office, rather than tandem, termination, and to 
being charged reciprocal compensation for calls to customers that 
have no physical presence in the local calling area associated 
with the NXX code Cox has assigned. 
II.  BACKGROUND

     A.   The Parties and their Interconnection Agreement

     3.   Cox is a facilities-based competitive local exchange 
carrier in Virginia.3  Verizon South is an incumbent local 
exchange carrier in Virginia.4

     4.   Cox and Verizon South interconnect their networks to 
enable an end user subscribing to one party's local exchange 
service to place calls to and receive calls from end users 
subscribing to the other party's local exchange service.5  In 
March 1996, Cox initiated negotiations with Verizon South 
regarding an interconnection agreement pursuant to section 
252(a)(1) of the Act.6  During negotiations, the parties reached 
an impasse over certain issues, which they then submitted to the 
Virginia State Corporation Commission (``VSCC'') for arbitration 
pursuant to section 252(b)(1) of the Act.7  At the conclusion of 
arbitration, the VSCC approved the resultant Agreement pursuant 
to section 252(e)(1) of the Act.8  Cox and Verizon South signed 
the Agreement on March 25 and 27, 1997, respectively.9  The 
parties dispute whether the Agreement remains in effect.10

     5.   The Agreement obligates the parties to ``reciprocally 
terminate local exchange traffic . . . between each other's 
networks,''11 and to pay reciprocal compensation to each other 
for the delivery of ``Local Calls'' that are ``originated from 
[one party] and terminated to [the other party's] end offices or 
tandems.12  This obligation does not apply, however, until there 
is an ``imbalance'' of ``Local Traffic'' that ``exceeds plus-or-
minus 10%.''13  The Agreement defines ``Local Exchange Traffic'' 
as ``any traffic that is defined by Local Calling Area.''14  
``Local Calling Area,'' in turn, means ``Extended Area Service 
(EAS) and Extended Local Service (ELS) calling area as defined in 
[Verizon South's] local tariff at the date of this agreement.''15  
During their negotiation of the Agreement, Cox and Verizon South 
did not address specifically whether ISP-bound traffic 
constituted ``local exchange traffic'' for purposes of the 
Agreement's reciprocal compensation provisions.16

     6.   Two provisions of the Agreement address waiver of 
rights.  Paragraph XIX.AM., which is captioned ``Waiver,'' is the 
more general of the two provisions.  It states:

          The failure of either Party to insist upon the 
          performance of any provision of this Agreement, or 
          to exercise any right or privilege granted to it 
          under this Agreement, shall not be construed as a 
          waiver of such provision or any provisions of this 
          Agreement, and the same shall continue in full 
          force and effect.17

Paragraph XIX.G.1. is entitled ``Dispute'' and falls under the 
heading ``Billing and Payment.''  This paragraph, which is more 
specific than Paragraph XIX.AM., provides:

          If a Party disputes a billing statement, that 
          Party shall notify the other Party in writing 
          regarding the nature and the basis of the dispute 
          within thirty (30) calendar days from the bill 
          date or twenty (20) calendar days from the receipt 
          of the bill, whichever is later, or the dispute 
          shall be waived.  The Parties shall diligently 
          work toward resolution of all billing issues.18

          7.   Paragraph XIX.G.5. of the Agreement establishes 
the rights of the parties to perform an audit:

          Each Party shall have a right to audit all bills 
          rendered by the other Party pursuant to this 
          Agreement, verifying the accuracy of items, 
          including but not limited to, the services being 
          provided on a wholesale basis pursuant to this 
          Agreement, usage recording and provisioning, and 
          nonrecurring charges.19     B.   The Parties' Implementation of the Reciprocal 
          Compensation Provisions

     8.   In September 1997, Verizon South and Cox began to 
exchange traffic in accordance with the Agreement.20  Cox sent 
its first bill to Verizon South for reciprocal compensation in 
November 1997,21 and, a month later, specifically notified 
Verizon South that local traffic was out of balance by more than 
10 percent.22  On December 29, 1997, Verizon South informed Cox 
in writing that ``charges for local termination of traffic . . . 
have been billed in error,'' because the parties allegedly had 
agreed, in September 1997, ``to remain in a bill and keep 
arrangement until January 1998.''23  Nevertheless, Cox continued 
to bill Verizon South on a monthly basis for reciprocal 
compensation.24  

     9.   During a February 23, 1998 meeting, Verizon South 
advised Cox that, due to technical limitations of the switch 
through which Cox interconnected with Verizon South's network, 
Verizon South could not measure traffic for purposes of 
reciprocal compensation billing until Verizon South converted its 
trunks from two-way trunks to one-way trunks.25  The parties 
agreed to a March 6, 1998 conversion date.26  It was not until 
August 14, 1998, however, that Verizon South installed and 
converted the trunks.27

     10.  On August 17, 1998, Verizon South sent Cox a letter 
disputing Cox's reciprocal compensation bills through August 1998 
on the ground that the parties allegedly had agreed to a bill and 
keep arrangement until Verizon South installed one-way trunks.28  
Verizon South reiterated this view in October 16, 1998 
correspondence, but nonetheless agreed to ``an earlier reciprocal 
compensation billing start date of April 1, 1998,'' and asked Cox 
to submit invoices for local traffic Cox terminated to Verizon 
South from April 1, 1998 forward.29

     11.  In a December 7, 1998 letter, Verizon South complained 
to Cox that there was ``an error in [Cox's] billing for the 
reciprocal termination of local traffic as provided for in our 
interconnection agreement.  It appears Cox is billing [Verizon 
South] for more than `Local Traffic' as defined in [the] 
agreement.''30  Verizon South requested that the parties 
``establish a discussion and work toward resolution of the 
dispute as soon as possible.''31  Four days later, Cox and 
Verizon South agreed to begin reciprocal compensation billing as 
of March 6, 1998.32

     12.  In a January 6, 1999 letter to Cox, Verizon South 
stated that it had ``determined the traffic to Cox is terminating 
to Internet service providers, not to actual end users in the 
local serving area and Internet traffic is not local in 
jurisdiction.''33  Verizon South proposed that the parties agree 
to withhold payment for such traffic until the ``FCC, the state 
Commission or court of competent jurisdiction issues a final and 
non appealable order regarding the compensation for Internet 
traffic.''34  Cox responded to Verizon South in correspondence 
dated February 3, 1999, which pledged that Cox would seek relief 
from the VSCC if Cox did not receive payment of all outstanding 
reciprocal compensation invoices by February 19, 1999.35  As 
discussed below, Cox filed a complaint with the VSCC in March 
1999.36

     13.  Throughout the remainder of 1999, the parties debated 
Verizon South's obligation to pay reciprocal compensation for the 
delivery of ISP-bound traffic.37  Prior to April 2000, Verizon 
South did not pay any reciprocal compensation to Cox.38  
Beginning in April 2000, and in each of the next four months, 
Verizon South sent Cox payments for reciprocal compensation for 
what Verizon South determined was ``bona fide local traffic.''39  
This excluded what Verizon South estimated to be the volume of 
ISP-bound traffic.  Cox returned Verizon South's first two 
checks, stating that the payments did not constitute the full 
amount due.40  Verizon South ceased making reciprocal 
compensation payments to Cox in August 2000.41

     C.   Proceedings Before the VSCC and this Commission

     14.  In March 1999, Cox filed a complaint with the VSCC 
requesting an order ``declaring that local calls to ISPs 
constitute local traffic under the terms of the Agreement and 
that Cox and [Verizon South] are entitled pursuant to their 
Agreement to reciprocal compensation for the completion of such 
calls; and enforcing [Verizon South's] obligations under the 
Agreement to make payments to Cox.''42  The VSCC refused to act 
on Cox's complaint, citing concerns about issuing a ruling that 
possibly would conflict with a subsequent decision by this 
Commission regarding reciprocal compensation for the delivery of 
ISP-bound traffic.43  

     15.  On June 30, 2000, Cox filed a petition with this 
Commission requesting preemption of the VSCC's jurisdiction over 
Cox's reciprocal compensation complaint pursuant to section 
252(e)(5) of the Act.44  In September 2000, the Commission 
granted Cox's petition, stating that it would resolve the 
following question:  ``whether the existing interconnection 
agreement between Cox and [Verizon South] requires [Verizon 
South] to pay compensation to Cox for the delivery of ISP-bound 
traffic.''45

     16.  On March 9, 2001, in accordance with the Preemption 
Order, Cox filed a formal complaint against Verizon South 
alleging that Verizon South violated the unambiguous reciprocal 
compensation provisions of the Agreement by failing to pay Cox 
for the delivery of ISP-bound traffic.46  The Complaint seeks an 
order from the Commission (1) determining that all traffic 
terminating to telephone numbers within the defined local calling 
area, including traffic bound for ISPs, is local traffic for 
reciprocal compensation purposes under the terms of the 
Agreement; and (2) requiring Verizon South to pay compensation 
for the transportation and termination of all local traffic, 
including ISP-bound traffic, delivered to Cox, as well as local 
interconnection facilities used to transport this traffic.47   In 
the event the Commission does not construe the Agreement in Cox's 
favor, the Complaint alleges that Cox is entitled to recover 
under a quantum meruit theory for the value of the termination 
services it rendered.48  Cox requests damages in the amount of 
$4,372,047.84 for its transport and termination of traffic.49 

     17.  On April 6, 2001, Verizon South filed an Answer to the 
Complaint.  The Answer asserts, inter alia, that ISP-bound 
traffic is not eligible for reciprocal compensation under the 
unambiguous terms of the Agreement, because, under an ``end-to-
end'' analysis, such traffic is jurisdictionally interstate.50  
The Answer further argues that the Commission lacks jurisdiction 
over Cox's quantum meruit and trunk facilities claims.51

     18.  On May 9, 2001, Commission staff bifurcated the issue 
of liability from the issue of damages and ruled that the 
liability issue would be adjudicated first.52  In doing so, 
Commission staff explained that, during the liability phase of 
this proceeding, rulings would be rendered regarding (1) whether 
the Agreement requires the payment of reciprocal compensation for 
the delivery of ISP-bound traffic; (2) if not, whether Cox is 
entitled to some compensation under the doctrine of quantum 
meruit; (3) whether Verizon South waived its right to object to 
Cox's charges for reciprocal compensation for calls to customers 
that have no physical presence in the local calling area 
associated with the ``NXX code'' Cox has assigned;53 (4) whether 
Verizon South waived its right to object to the rate of 
compensation; and (5) whether Verizon South waived its right 
under the Agreement to require an audit of Cox's bills for 
reciprocal compensation.54   

III. DISCUSSION

     A.   The Interconnection Agreement Determines the Parties' 
          Reciprocal Compensation Obligations for the Delivery of 
          ISP-Bound Traffic.

          19.  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.55  The 
parties appear to agree that the Agreement does, in fact, address 
and conclusively govern this compensation issue.56  Thus, the 
first question we confront in this proceeding is whether the 
Agreement entitles Cox to receive reciprocal compensation for the 
delivery of ISP-bound traffic.

     B.   The ``Plain Meaning'' Rule under Virginia Law Governs 
          Our Interpretation of the Agreement.

          20.  In interpreting the Agreement, we stand in the 
shoes of the VSCC.57  We agree with the parties that Virginia law 
supplies the applicable rules of contract interpretation.58  
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.''59  Although the 
cornerstone of a ``plain meaning'' analysis is a contract's 
language,60 in ascertaining the parties' intent ``as expressed by 
them in the words they have used,''61 a court also may examine 
the ``surrounding circumstances, the occasion, and [the] apparent 
object of the parties.''62  In particular, 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.''63  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.64  Furthermore, course-of-
performance evidence can be considered to ascertain a contract's 
meaning (but cannot ``create a new, additional contract 
right'').65

       21.          Both parties invoke the ``plain meaning'' 
rule in support of their positions.66  According to Cox, as 
interpreted under the ``plain meaning'' rule, the Agreement 
clearly treats ISP-bound traffic as compensable local traffic.67  
Verizon South similarly relies upon the ``plain meaning'' rule to 
argue that the Agreement unambiguously does not require payment 
of reciprocal compensation for the delivery of ISP-bound 
traffic.68  For the reasons described below, applying Virginia's 
rules of contract interpretation, we agree with the parties that 
the Agreement is unambiguous regarding compensation for the 
delivery of ISP-bound traffic.  We further conclude that the 
Agreement requires reciprocal compensation for the delivery of 
ISP-bound traffic. 

     C.    The Agreement Obligates Verizon South to Pay 
          Reciprocal Compensation to Cox for the Delivery of ISP-
          Bound Traffic.

          22.  Under the terms of the Agreement, the parties must 
pay reciprocal compensation for the delivery of ``local exchange 
traffic'' that is ``originated from [one party] and terminated to 
[the other party's] end offices or tandems,'' once there is an 
``imbalance'' of such traffic that ``exceeds plus-or-minus 
10%.''69  The Agreement defines ``Local Exchange Traffic'' as 
``any traffic that is defined by Local Calling Area.''70  ``Local 
Calling Area'' means the ``Extended Area Service (EAS) and 
Extended Local Service (ELS) calling area for each exchange as 
defined in [Verizon South's] local tariff at the date of [the] 
Agreement.''71  Thus, the Agreement's definition of compensable 
``local exchange traffic'' ultimately derives from the scope of 
local traffic under Verizon's South's local tariff.  Accordingly, 
whatever traffic is ``local'' under the tariff is compensable 
traffic under the Agreement.

          23.  The parties agree that ISP-bound traffic is 
``local exchange 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 Verizon South's local tariff.72  Consequently, ISP-bound 
traffic must constitute traffic defined by the tariff's ``Local 
Calling Area.''  Accordingly, because the Agreement adopts the 
tariff's conception of local exchange traffic, we conclude that 
the Agreement plainly requires Verizon South to pay reciprocal 
compensation for the delivery of ISP-bound traffic.73

     24.  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.''74  This objection is meritless, because Verizon 
South voluntarily agreed to link the compensability of traffic 
under the Agreement to the classification of traffic in the 
tariff.

     25.  Verizon South further asserts that the parties intended 
the 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.75  According 
to Verizon South, this difference mirrors the distinction that 
the Commission drew in paragraph 1034 of the Local Competition 
Order,76 where the Commission concluded that ``reciprocal 
compensation obligations should apply only to traffic that 
originates and terminates within a local area....''77  We 
disagree.  The Agreement does not track the language used by the 
Commission to implement section 251(b)(5) of the Act.78  In 
particular, the Agreement's definition of ``local exchange 
traffic'' does not speak in terms of ``origination'' and 
``termination'' of traffic.  Moreover, although the Agreement 
references ``Local Calling Area[s],'' it does so simply as a 
means of incorporating Verizon South's tariff.79 

     26.  Finally, in further support of its argument that the 
parties intended the Agreement to track the requirements of 
federal law,80 Verizon South relies heavily on 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.''81  
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.''82  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.83  In this case, there was no controlling 
federal law mandating a particular compensation arrangement for 
ISP-bound traffic.84

          27.  In sum, given the Agreement's reference to the 
tariff's conception of local traffic, whatever calls Verizon 
South bills to its customers as local calls under the tariff must 
be compensable local calls under the Agreement.  Because it is 
undisputed that Verizon South bills ISP-bound traffic as local 
calls under the tariff, such calls are compensable under the 
Agreement.  Thus, Verizon South must pay reciprocal compensation 
to Cox for the delivery of ISP-bound traffic.85

     D.   Prior to April 6, 2001, Verizon South Waived Its Right 
          to Object to Being Billed Reciprocal Compensation at 
          the Tandem Served Rate and to Being  Billed Reciprocal 
          Compensation for Calls to Customers that Have No 
          Physical Presence in the Local Calling Area Associated 
          with the NXX Code Cox Assigned. 

          28.  We must address two waiver issues.86  The first 
issue is whether Verizon South waived its right to object to 
being billed reciprocal compensation at the ``tandem served'' 
rate.87  The second issue is whether Verizon South waived its 
right to object to being billed reciprocal compensation for calls 
to customers that have no physical presence in the local calling 
area associated with the NXX code Cox assigned.88  Cox contends 
that Verizon South waived both of these objections, because the 
first time Verizon South raised them in writing was in its Answer 
in this proceeding, which was filed on April 6, 2001.89  
According to Cox, neither of these objections ``was made in any 
notice provided to Cox in accordance with the requirements of the 
dispute provision or, for that matter, in any notice at all prior 
to the Answer.''90

          29.  As explained above, the Agreement contains two 
waiver provisions.  Paragraph XIX.AM. generally disfavors a 
finding of waiver,91 while paragraph XIX.G.1. requires a precise 
reservation of rights to preserve a billing objection.92  Verizon 
South argues that paragraph XIX.AM. ``clearly establishes a 
background rule against finding that a party has waived its right 
under the agreement.''93  Verizon South maintains that paragraph 
XIX.G.1., read in conjunction with paragraph XIX.AM., does not 
require a party to raise all of its potential disputes with a 
bill simultaneously, and that a pending dispute between the 
parties regarding billing subsumes any subsequent billing 
objections.94  Verizon South contends, therefore, that it did not 
waive its rate and NXX code objections, because it notified Cox 
as early as December 7, 1998 that it disputed the contents of 
Cox's reciprocal compensation bills.95

          30.  We disagree.  Paragraph XIX.G.1. specifies how 
parties must preserve their rights regarding billing disputes.  
Although Paragraph XIX.AM. expresses a general rule against 
waiver, we view paragraph XIX.G. as an exception to that rule in 
the context of billing matters.  Our conclusion is consistent 
with Virginia law holding that specific contract language 
controls over more general contract language.96  Moreover, were 
we to construe paragraph XIX.AM. as broadly as Verizon South 
posits, objecting to one aspect of a bill would enable a party at 
any time to object to any aspect of the bill.  This would 
undermine the Agreement's directive that the parties ``diligently 
work toward resolution of all billing issues.''97  Accordingly, 
in order to preserve its rate and NXX code objections to Cox's 
reciprocal compensation bills, Verizon South had to ``notify 
[Cox] in writing regarding the nature and the basis'' of those 
disputes within 20-30 days of the challenged bill.''98

          31.  We find that Verizon South raised the tandem 
served rate and NXX code objections for the first time in its 
Answer filed in this proceeding on April 6, 2001.99  Prior to 
that date, Verizon South sent nothing in writing to Cox making 
Cox aware of the ``nature and the basis'' of a dispute regarding 
these issues.  More specifically, Verizon South never previously 
questioned in writing whether Cox was billing reciprocal 
compensation for calls to customers located outside the local 
calling area associated with the NXX code Cox assigned; and the 
only occasion on which Verizon South ever even mentioned end-
office (versus tandem) switching to Cox in writing was an April 
14, 2000 letter stating that Verizon South ``calculated the 
payment amount [for ``bona-fide local traffic''] using the end 
office switching . . . rates contained in the current 
interconnection contract.''100  This April 14, 2000 
correspondence neither suggested that Verizon South disputed 
Cox's use of the tandem switching rate nor, assuming such a 
dispute then existed, explained Verizon South's basis for the 
dispute.101  Accordingly, prior to April 6, 2001, Verizon South 
waived its rate and NXX code objections to Cox's bills.102

V.   CONCLUSION AND ORDERING CLAUSES

          37.  For the above reasons, we find that the Agreement 
between Cox and Verizon South requires Verizon South to pay 
reciprocal compensation to Cox for the delivery of ISP-bound 
traffic.  In addition, we find that, prior to April 6, 2001, 
Verizon South waived its right to object to being billed 
reciprocal compensation at the tandem served rate and to being 
billed reciprocal compensation for calls to customers that have 
no physical presence in the local calling area associated with 
the NXX code Cox assigned.

          38.  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 formal complaint filed by Cox against Verizon 
South is hereby GRANTED.

                              FEDERAL COMMUNICATIONS COMMISSION



                                   Marlene H. Dortch                                                             
                              Secretary

_________________________

1 Verizon South Inc. formerly was known as GTE South 
Incorporated.  Joint Statement of Cox Virginia Telcom, Inc. and 
Verizon South, Inc., File No. EB-01-MD-006 (filed Apr. 19, 2001) 
(``Joint Statement'') at 1-2, ¶ 2.
2 47 U.S.C. §§ 208, 252(e)(5).
3 Joint Statement at 1, ¶ 1.
4 Joint Statement at 1-2, ¶ 2.
5 Joint Statement at 5, ¶ 23.
6 Joint Statement at 2, ¶ 4; 47 U.S.C. § 252(a)(1).
7 Joint Statement at 4, ¶ 17; 47 U.S.C. § 252(b)(1).
8 Joint Statement at 2, ¶ 5; 47 U.S.C. § 252(e)(1).
9 Joint Statement at 2, ¶ 5.  From the record, it does not appear 
that either party appealed the Agreement pursuant to section 
252(e)(6) of the Act.  47 U.S.C. § 252(e)(6). 
10 See Initial Brief of Cox Virginia Telcom, Inc., File No. EB-
01-MD-006 (filed July 11, 2001) (``Cox Brief'') at 34-37; Verizon 
South Inc.'s Opening Brief on the Merits, File No. EB-01-MD-006 
(filed July 11, 2001) (``Verizon South Brief'') at 38; Reply 
Brief of Cox Virginia Telcom, Inc., File No. EB-01-MD-006 (filed 
July 20, 2001) (``Cox Reply Brief'') at 18-20; Verizon South 
Inc.'s Reply Brief, File No. EB-01-MD-006 (filed July 20, 2001) 
(``Verizon South Reply Brief'') at 19-20.  If necessary, we will 
address in a subsequent damages proceeding whether the Agreement 
still governs.
11 Formal Complaint, File No. EB-01-MD-006 (filed Mar. 9, 2001) 
(``Complaint''), Exhibit B (Interconnection Agreement), ¶ V.A.
12 Complaint, Exhibit B (Interconnection Agreement), ¶ V.C.
13 Complaint, Exhibit B (Interconnection Agreement), Exhibit B 
(Detailed Schedule of Itemized Charges), ¶¶ A.1.a., B.1.a.  
Exhibit B of the Agreement establishes call termination rates for 
``Local Traffic.'' Joint Statement at 5, ¶ 21; Complaint, Exhibit 
B (Interconnection Agreement), Exhibit B (Detailed Schedule of 
Itemized Charges).  The Agreement does not define the terms 
``Local Calls'' or ``Local Traffic.''  The parties apparently 
consider those terms to be interchangeable with the defined term 
``local exchange traffic'' (see Joint Statement at 3-4, ¶ 12), 
and nothing in the Agreement leads us to conclude that such an 
understanding is incorrect.
14 Joint Statement at 4, ¶ 19; Complaint, Exhibit B 
(Interconnection Agreement), ¶ II.49.
15 Joint Statement at 4-5, ¶ 20; Complaint, Exhibit B 
(Interconnection Agreement), ¶ II.46.
16 Joint Statement at 4, ¶ 13.  Nor did the parties raise this 
issue during arbitration of the Agreement before the VSCC.  Joint 
Statement at 4, ¶ 18.
17 Complaint, Exhibit B (Interconnection Agreement), ¶ XIX.AM.
18 Joint Statement at 6, ¶ 30; Complaint, Exhibit B 
(Interconnection Agreement), ¶ XIX.G.1.
19 Complaint, Exhibit B (Interconnection Agreement), ¶ XIX.G.5.
20 Joint Statement at 5, ¶ 23; Complaint at 7, ¶ 14; at 12, ¶ 41;  
Answer of Verizon South, Inc., File No. EB-01-MD-006 (filed Apr. 
6, 2001) (``Answer'') at 18, ¶ 51; at 23, ¶ 80.
21 Joint Statement at 5, ¶ 24.
22 Joint Statement at 5, ¶ 24; Complaint at 12, ¶ 42; Answer at 
23, ¶ 81.
23 Answer, Exhibit F (Letter dated December 29, 1997 from 
Kimberly Tagg, Support Manager - Emerging Markets, GTE Network 
Services, to Jill Butler, Director Regulatory, Cox Fibrenet); 
Joint Timeline at 1.  Cox and Verizon South stipulate that 
Verizon South mailed the letter on the date reflected on its 
face, and that Cox received the letter.  Joint Statement at 2, ¶ 
3. 
24 Joint Statement at 5, ¶ 27.
25 Complaint, Exhibit G (Letter dated August 17, 1998 from 
Cynthia Lamb, Support Manager - Emerging Markets, GTE Network 
Services, to George Cozens, Cox Fibrenet); Exhibit H (Letter 
dated October 16, 1998, from Cynthia Lamb, Support Manager - 
Emerging Markets, GTE Network Services, to Jill Nickel Butler, 
Director, Regulatory Affairs Southeast, Cox Communications, Inc.) 
at 1; Answer, Exhibit C (Declaration of Cynthia Lamb) at 2-3, ¶ 
10; Answer, Exhibit D (Declaration of Kimberly Tagg) at 1, ¶ 3; 
Timeline for Cox/Verizon South Reciprocal Compensation Dispute, 
File No. EB-01-MD-006 (filed Apr. 27, 2001) (``Joint Timeline'') 
at 2.
26 Joint Timeline at 2; Complaint, Exhibit H (Letter dated 
October 16, 1998, from Cynthia Lamb, Support Manager - Emerging 
Markets, GTE Network Services, to Jill Nickel Butler, Director, 
Regulatory Affairs Southeast, Cox Communications, Inc.) at 2.
27 Complaint, Exhibit G (Letter dated August 17, 1998 from 
Cynthia Lamb, Support Manager - Emerging Markets, GTE Network 
Services, to George Cozens, Cox Fibrenet) at 1; Answer, Exhibit C 
(Declaration of Cynthia Lamb) at 2-3, ¶ 10; Joint Timeline at 2.
28 Complaint at Exhibit G (Letter dated August 17, 1998 from 
Cynthia Lamb, Support Manager - Emerging Markets, GTE Network 
Services, to George Cozens, Cox Fibrenet); Joint Timeline at 2.
29 Complaint, Exhibit H (Letter dated October 16, 1998 from 
Cynthia Lamb, Support Manager - Emerging Markets, GTE Network 
Services, to Jill Nickel Butler, Director, Regulatory Affairs 
Southeast, Cox Communications, Inc.); Joint Timeline at 3.
30 Complaint, Exhibit I (Letter dated December 7, 1998 from 
Cynthia Lamb, Support Manager - Emerging Markets, GTE Network 
Services, to Jill Nickel Butler, Director, Regulatory Affairs 
Southeast, Cox Communications, Inc.); Joint Timeline at 3.
31 Complaint at 15, ¶ 53; Exhibit I (Letter dated December 7, 
1998 from Cynthia Lamb, Support Manager - Emerging Markets, GTE 
Network Services, to Jill Nickel Butler, Director, Regulatory 
Affairs Southeast, Cox Communications, Inc.).  See Joint Timeline 
at 3.
32 Joint Timeline at 3; Joint Statement at 5, ¶ 26. 
33 Answer, Exhibit G (Letter dated January 6, 1999 from Ann 
Lowery, Manager-Interconnections/ Negotiations,  GTE Network 
Services, to Jill Nickel Butler, Director, Regulatory Affairs 
Southeast, Cox Communications, Inc.).  See Joint Timeline at 3.
34 Answer, Exhibit G (Letter dated January 6, 1999 from Ann 
Lowery, Manager-Interconnections/ Negotiations,  GTE Network 
Services, to Jill Nickel Butler, Director, Regulatory Affairs 
Southeast, Cox Communications, Inc.).  See Joint Timeline at 3.
35 Complaint, Exhibit K (Letter dated February 3, 1999 from John 
D. Sharer, counsel for Cox, to Richard D. Gary, counsel for 
Verizon South); Joint Timeline at 3.  The next day, Verizon South 
acknowledged receipt of Cox's letter.   Complaint, Exhibit L 
(Letter dated February 4, 1999 from Richard D. Gary, counsel for 
Verizon South, to John D. Sharer, counsel for Cox); Joint 
Timeline at 3.
36 See paragraph 14, infra.
37 Joint Timeline at 4.
38 Joint Statement at 5, ¶ 28.
39 Complaint, Exhibit O (Letter dated April 14, 2000, from Laura 
Schneider, Manager - Contract Compliance, GTE Network Services, 
to Accounts Payable, Cox Fibrenet); Joint Timeline at 4-5; Joint 
Statement at 5-6, ¶ 28.
40 Joint Statement at 5-6, ¶ 28.
41 Joint Statement at 5-6, ¶ 28.
42 Joint Statement at 2, ¶ 6 (citing Answer, Exhibit J [Cox 
Virginia Telcom, Inc. v. GTE South, Inc., Petition of Cox 
Virginia Telcom, Inc. for Enforcement of Interconnection 
Agreement for Reciprocal Compensation for the Termination of 
Local Calls to Internet Service Providers, Case No. PUC 99046 
(filed Mar. 18, 1999)]).
43 Joint Statement at 2, ¶ 7.
44 Joint Statement at 3, ¶ 8; 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.'').
45 Joint Statement at 3, ¶ 9; Cox Virginia Telecom, Inc. 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 17958, 17960, ¶ 6 (2000) (``Preemption Order'').
46 Complaint at 1-2.
47   Complaint at 1-2.  The parties subsequently settled Cox's 
claim that Verizon South failed to compensate Cox for local 
interconnection trunks used to transport ISP-bound traffic.  See 
Letter dated January 24, 2002, from J.G. Harrington, counsel for 
Cox, to Magalie Roman Salas, Secretary, Federal Communications 
Commission, File No. EB?01?MD?006 (filed Jan. 24, 2002).
48 Complaint at 38-42, ¶¶ 128-39.
49 Complaint at 42, ¶ 141.
50 Answer at 56-66.
51 Answer at 52-54, ¶¶ 195-201.
52 Letter dated May 9, 2001 from David Strickland, Attorney 
Advisor, Market Disputes Resolution Division, Enforcement Bureau, 
to J.G. Harrington and Laura Rocklein, counsel for Cox, and 
Lawrence W. Katz, Aaron M.  Panner and Scott G. Angstreich, 
counsel for Verizon South, File No. EB-01-MD-006 (filed May 9, 
2001) at 1.  See 47 C.F.R. § 1.722(c).
53 The NXX code is the three-digit switch entity indicator that 
is defined by the ``D,'' ``E'' and ``F'' digits of a 10-digit 
telephone number within the North American Numbering Plan.  Each 
NXX code contains 10,000 station numbers.  Complaint, Exhibit B 
(Interconnection Agreement), ¶ II.62.
54 Letter dated May 24, 2001, from David Strickland, Attorney 
Advisor, Market Disputes Resolution Division, Enforcement Bureau, 
to J.G. Harrington and Laura Gallagher, counsel for Cox, and 
Lawrence W. Katz, Aaron M. Panner and Scott H. Angstreich, 
counsel for Verizon South, File No. EB-01-MD-006 (filed May 24, 
2001) at 2-3.
55 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''), appeal 
pending, WorldCom Inc. v. FCC, Case No. 01-1218 (D.C. Cir.) 
(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 and delivery 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.  Neither party argues that the 
interconnection agreement involved in the instant proceeding 
contains change of law provisions that would be triggered by the 
Order on Remand.
56 Complaint at 26-27, ¶¶ 87-94; Answer at 56-67; Cox Brief at 8-
11; Verizon South Brief at 7-21; Cox Reply Brief at 6-10; Verizon 
South Reply Brief at 3-12.
57 See 47 U.S.C. § 252(e)(5); Preemption Order, 15 FCC Rcd 17958, 
17960, ¶ 6.
58 See Complaint at 30, ¶ 112; Answer at 57 n.10; Cox Brief at 5 
n.9; Verizon South Brief at 7 n.4.  See also Complaint, Exhibit B 
(Interconnection Agreement), ¶ XIX.R. (``This Agreement shall be 
governed by and construed in accordance with the laws of the 
Commonwealth of Virginia and shall be subject to the exclusive 
jurisdiction of the courts therein.  In addition, insofar as and 
to the extent federal law may properly apply, federal law will 
control.'').  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).
59 American Spirit Ins. Co. v. Owens, 261 Va. 270, 275, 541 
S.E.2d 553, 555 (2001).  See Berry v. Klinger, 225 Va. 201, 208, 
300 S.E.2d 792, 796 (1983). 
60 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'').
61 Ames v. American Nat'l Bank, 163 Va. 1, 38, 176 S.E. 204, 216 
(1932).
62 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)).
63 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).
64 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.'').
65 Chas. H. Tompkins Co., 732 F. Supp. at 1375.  See also Va. 
Code Ann. § 8.2- 208(2) (``The express terms of the agreement and 
any course of performance, as well as any course of dealing and 
usage of trade, shall be construed whenever reasonable as 
consistent with each other; but when such construction is 
unreasonable, express terms shall control course of performance 
and course of performance shall control both course of dealing 
and usage of trade.'').
66 Complaint at 31-32, ¶¶ 112-14; Cox Brief at 8-11; Cox Reply 
Brief at 6; Answer at 56-57; Verizon South Brief at 7-8; Verizon 
South Reply Brief at 3-4.  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)).
67 Complaint at 32, ¶ 114.  See also Cox Brief at 8-9; Cox Reply 
Brief at 6.
68 Answer at 56-57; Verizon South Brief at 7-8; Verizon South 
Reply Brief at 3-4.
69 Joint Statement a 3-4, ¶ 12; Complaint, Exhibit B 
(Interconnection Agreement), ¶¶ V.A., V.C.; Exhibit B (Detailed 
Schedule of Itemized Charges), ¶¶ A.1.a., B.1.a.
70 Joint Statement at 4, ¶ 19; Complaint, Exhibit B 
(Interconnection Agreement), ¶ II.49.
71 Joint Statement at 4, ¶ 20; Complaint, Exhibit B 
(Interconnection Agreement), ¶ II.46.
72 Joint Statement at 8, ¶ 48.
73 The language of the Agreement resembles the language of an 
interconnection agreement between Verizon South and another 
competitive local exchange carrier that we recently interpreted 
in a similar fashion.  See Starpower Communications, LLC v. 
Verizon South Inc., Memorandum Opinion and Order, File No. EB-00-
MD-19, 2002 WL 518062, ¶¶ 42-49 (F.C.C. Apr. 8, 2002).
74 Answer at 66; Verizon South Brief at 20-21; Verizon South 
Reply Brief at 10-11.
75 Answer at 57-58; Verizon South Brief at 9-10, 17-18; Verizon 
South Reply Brief at 4-6.
76 Verizon South Brief at 9-10, 17-18 (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'')).  See also Answer 
at 57; Verizon South Reply Brief at 4.
77 Local Competition Order, 11 FCC Rcd at 16013, ¶ 1034.
78 47 U.S.C. § 251(b)(5).
79  Joint   Statement  at   4,  ¶   20;  Complaint,   Exhibit   B 
(Interconnection Agreement), ¶ II.46.
80 Answer at 58; Verizon South  Brief at 10; Verizon South  Reply 
Brief at 4-5.
81  AT&T  Communications   of  S.  States,   Inc.  v.   BellSouth 
Telecommunications, 223 F.3d 457, 465 (4th Cir. 2000) (``AT&T  v. 
BellSouth'').  See Answer  at 58-60; Verizon  South Brief at  10; 
Verizon South Reply Brief at 4-5.
82 AT&T v. BellSouth, 223 F.3d at 465.
83 AT&T v. BellSouth, 223 F.3d at 465.
84 See Declaratory Ruling, 14 FCC Rcd at 3703, ¶ 22.
85 We emphasize that, in issuing this decision, we stand in the 
shoes of the VSCC.  Thus, although we determine an aspect of 
Verizon South's reciprocal compensation obligations, we do so 
solely as a matter of contract interpretation, and do not 
establish any requirements regarding reciprocal compensation for 
ISP-bound traffic that are applicable generally to all carriers. 
86 A third waiver issue - whether Verizon South waived the right 
to object to the inclusion of ISP-bound traffic in Cox's 
reciprocal compensation bills - is moot.  Complaint at 28-29, ¶¶ 
100-103; Answer at 67-68; Cox Brief at 7-8; Verizon Brief at 23-
24; Cox Reply Brief at 4; Verizon Reply Brief at 12-14.   
Specifically, even if Verizon South had preserved such an 
objection, it would be meritless in light of our holding that the 
Agreement requires Verizon South to pay reciprocal compensation 
for the delivery of ISP-bound traffic.
87 According to Verizon South, Cox does not perform a tandem 
switching function in delivering traffic to its customers, 
because Cox's switch has no subtending end offices.  Answer at 
69-70.  Verizon South argues that Cox's switch cannot be 
characterized as a ``Tandem Office Switch'' under the Agreement.  
Answer at 70 (citing Complaint, Exhibit B (Interconnection 
Agreement), ¶ II.86).  See Verizon South Inc.'s First Set of 
Interrogatories to Cox Virginia Telcom, Inc., File No. EB-01-MD-
006 (filed Apr. 6, 2001) (``Verizon South's Interrogatories''), 
Interrogatory No. 4.  Consequently, Verizon South asserts that it 
violates the Agreement for Cox to bill Verizon South for the use 
of Cox's access tandem, for transport between the tandem switch 
and the end office, and for end office switching.  Answer at 69.  
See Verizon South Interrogatories, Interrogatory No. 3.
88 Answer at 70.  See Verizon South Interrogatories, 
Interrogatory Nos. 5, 6.  Verizon South maintains that, under the 
Agreement, such calls do not terminate in the same local calling 
area in which they originate, and, accordingly, that Cox is not 
entitled to reciprocal compensation for such calls.  Answer at 
70.
89 Cox Brief at 6; Cox Reply Brief at 2-4.
90 Cox Brief at 6.
91 Complaint, Exhibit B (Interconnection Agreement), ¶ XIX.AM. 
(``The failure of either Party to insist upon the performance of 
any provision of this Agreement, or to exercise any right or 
privilege granted to it under this Agreement, shall not be 
construed as a waiver of such provision or any provisions of this 
Agreement, and the same shall continue in full force and 
effect.'').
     92 Joint Statement at 6, ¶ 30; Complaint, Exhibit B 
(Interconnection Agreement), ¶ XIX.G.1 (``If a Party disputes a 
billing statement, that Party shall notify the other Party in 
writing regarding the nature and the basis of the dispute within 
thirty (30) calendar days from the bill date or twenty (20) 
calendar days from the receipt of the bill, whichever is later, 
or the dispute shall be waived.  The Parties shall diligently 
work toward resolution of all billing issues.'').

93 Verizon South Brief at 22.  See Verizon South Reply Brief at 
14 n.15.
94 Answer  at 68-69;  Verizon South  Brief at  22; Verizon  South 
Reply Brief at 13.
95 Answer at 68-69; Verizon  South Brief at 22-24; Verizon  South 
Reply Brief at 12-13.
96 Chantilly Constr. Corp. v.  Department of Highways & Transp., 
6 Va. App. 282, 294, 369 S.E.2d 438, 445 (1988) (``[A]ny apparent 
inconsistency between a clause that is general and broadly 
inclusive in character, and a clause that is more specific in 
character, should be resolved in favor of the latter.''); see 
generally Restatement (Second) of Contracts § 203(c) (1979).
97 Complaint, Exhibit B (Interconnection Agreement), ¶ XIX.G.1.
98 Complaint, Exhibit B (Interconnection Agreement), ¶ XIX.G.1.
99 We find that these objections were effective even though they 
were not sent to the individuals specified in the notice 
provision of the Agreement.  See Complaint, Exhibit B 
(Interconnection Agreement), ¶ XIX.Z.  But see Cox Brief at 8 
n.15; Cox Reply Brief at 4 n.6.  Because Verizon South made the 
objections during the course of heated litigation between the 
parties, we have little doubt that Cox is fully aware of them.  
See Akers v. James T. Barnes of Washington, D.C., Inc., 227 Va. 
367, 370-71, 315 S.E.2d 199, 201 (1984) (where the conditions of 
a contract have been deviated from in ``trifling particulars,'' 
there nonetheless is substantial compliance if the deviations do 
not materially detract from the benefit the other party would 
derive from a literal performance).
100 Complaint, Exhibit O (Letter dated April 14, 2000, from Laura 
Schneider, Manager - Contract Compliance, GTE Network Services, 
to Accounts Payable, Cox Fibrenet).
101 See Cox Brief at 6 n.13.  Verizon South asserts that it has 
the right under paragraph XIX.G.5. of the Agreement to audit 
Cox's bills for the purpose of determining ``whether those bills 
include non-local calls for reasons independent of Cox's improper 
inclusion of Internet-bound traffic.''  Answer at 70.  In 
particular, Verizon South wants to investigate its tandem served 
rate and NXX code concerns.  Verizon South Brief at 24; Verizon 
South Reply Brief at 14.  We believe Verizon South has a right to 
audit Cox's bills under paragraph XIX.G.5. of the Agreement, 
which, unlike paragraph XIX.G.1., contains no time limitation 
within which a party must assert the right.  Complaint, Exhibit B 
(Interconnection Agreement), ¶ XIX.G.5. (``Each Party shall have 
a right to audit all bills rendered by the other Party pursuant 
to this Agreement, verifying the accuracy of items, including but 
not limited to, the services being provided on a wholesale basis 
pursuant to this Agreement, usage recording and provisioning, and 
nonrecurring charges.'').  However, because we find that, prior 
to April 6, 2001, Verizon South waived its tandem served rate and 
NXX Code objections, any audit of bills received before that date 
cannot be used to gather information relating to those 
objections.
102 Verizon South argues that it had no obligation under the 
Agreement to dispute contemporaneously particular components of 
Cox's bills prior to December 11, 1998, because before that date 
the parties had operated under a bill and keep arrangement.  
Answer at 67-68; Verizon South Brief at 22-23; Verizon South 
Reply Brief at 13 n.14.  We need not reach this issue.  As 
discussed above, the record demonstrates that Verizon South did 
not raise its tandem served rate and NXX code objections until 
April 6, 2001.  Consequently, even assuming Verizon South 
correctly characterizes the date on which its obligation to 
``flyspeck'' Cox's bills began, Verizon South did not timely 
raise these two objections after that date.