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Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, DC 20054
Global NAPs, Inc., )
)
Complainant, )
)
v. ) File No. EB-01-MD-010
)
Verizon Communications, )
Verizon New England, Inc., and )
Verizon Virginia, Inc., )
)
Defendants. )
MEMORANDUM OPINION AND ORDER
Adopted: February 21, 2002 Released: February 28, 2002
By the Commission:
I. INTRODUCTION
In this Order, we grant in part and deny in part a
formal complaint that Global NAPs, Inc. (``Global NAPs''), filed
against Verizon Communications, Verizon New England, Inc., and
Verizon Virginia, Inc. (collectively, ``Verizon''),1 pursuant to
section 208 of the Communications Act of 1934, as amended
(``Act'' or ``Communications Act'').2 We grant Global NAPs'
claim that Verizon violated section 201(b) of the Act3 by
refusing to permit Global NAPs to opt into certain provisions of
an interconnection agreement that are eligible for adoption
across state lines in accordance with a condition of the
Commission's approval of the merger application of Bell Atlantic
Corp. and GTE Corp.4 We deny Global NAPs' claim for damages,
however, because such claim is premature.
II. BACKGROUND
Global NAPs is a telecommunications carrier that offers
interstate and intrastate telecommunications services.5 Pursuant
to sections 251 and 252 of the Act,6 Global NAPs and its
affiliates have interconnection agreements with Verizon
concerning the provision of local telecommunications services in
a number of states.7 Verizon is an incumbent local exchange
carrier (``LEC'') that provides, among other services, local
exchange and exchange access services in the states that are
relevant to this complaint.8
In 1998, pursuant to section 252(a) of the Act,9 Global
NAPs and Bell Atlantic - Rhode Island signed a negotiated
interconnection agreement governing the exchange of
telecommunications traffic in the state of Rhode Island (``Rhode
Island Agreement'').10 That agreement contains section 5.7.2.3,
which provides, inter alia, that Verizon will pay Global NAPs
reciprocal compensation (as defined in the agreement) for the
delivery of traffic from Verizon's network to Global NAPs'
internet service provider (``ISP'') customers (``ISP-bound
traffic'') until such time as this Commission or a court
determines that ISP-bound traffic is not ``local traffic'' or is
otherwise not compensable.11
On February 26, 1999, the Commission ruled that ISP-
bound traffic is largely interstate traffic that is not subject
to the reciprocal compensation scheme of section 251(b)(5) of the
Act.12 Nevertheless, the Commission stated that state commission
findings as to whether reciprocal compensation provisions of
interconnection agreements applied to ISP-bound traffic would
remain in place pending adoption of a Commission rule
establishing an appropriate interstate compensation mechanism.13
On November 16, 1999, the Rhode Island Public Utilities
Commission (``PUC'') issued an order finding that the
requirements of section 5.7.2.3 remain in effect, notwithstanding
the Commission's Declaratory Ruling.14 The Rhode Island PUC held
that the Commission's Declaratory Ruling did not fulfill the
Rhode Island Agreement's requirement of fully resolving the issue
of whether ISP-bound traffic would remain in the reciprocal
compensation scheme as local traffic. Thus, the Rhode Island PUC
continued to require Bell Atlantic-Rhode Island to pay reciprocal
compensation to Global NAPs for this traffic.15
On March 24, 2000, the Court of Appeals for the
District of Columbia Circuit vacated the Declaratory Ruling.16
The court stated, inter alia, that the Commission had not
adequately explained why ISP-bound traffic falls outside the
rubric of section 251(b)(5) of the Act.17 Thus, the court
remanded the matter to the Commission for further explanation.
On June 16, 2000, while the D.C. Circuit's remand of
the Declaratory Ruling remained pending at the Commission, the
Commission released the Merger Order approving the transfer of
licenses from GTE to Bell Atlantic.18 The Commission concluded,
inter alia, that, because of the conditions to which the parties
had voluntarily committed, the proposed transfer of licenses
would serve the public interest.19 One such condition set forth
in the Merger Order is the subject of the instant complaint. In
brief, that condition requires Verizon, under certain specified
circumstances, to permit requesting carriers to adopt in one
state an interconnection agreement that was voluntarily
negotiated in another state. The condition states, in pertinent
part:
32. In-Region Pre-Merger Agreements. Subject to the
Conditions specified in this Paragraph, Bell Atlantic/GTE
shall make available: (1) in the Bell Atlantic Service Area
to any requesting telecommunications carrier any
interconnection arrangement, UNE, or provisions of an
interconnection agreement (including an entire agreement)
subject to 47 U.S.C. § 251(c) and Paragraph 39 of these
Conditions that was voluntarily negotiated by a Bell
Atlantic incumbent LEC with a telecommunications carrier,
pursuant to 47 U.S.C. § 252(a)(1), prior to the Merger
Closing Date and (2) in the GTE Service Area to any
requesting telecommunications carrier any interconnection
arrangement, UNE, or provision of an interconnection subject
to 47 U.S.C. § 251(c) that was voluntarily negotiated by a
GTE incumbent LEC with a telecommunications carrier,
pursuant to 47 U.S.C. § 252(a)(1), prior to the Merger
Closing Date, provided that no interconnection arrangement
or UNE from an agreement negotiated prior to the Merger
Closing Date in the Bell Atlantic Area can be extended into
the GTE Service Area and vice versa.20
On April 27, 2001, in response to the D.C. Circuit's
remand, the Commission released an order determining, inter alia,
that ISP-bound traffic constitutes ``information access'' under
section 251(g) of the Act and is, therefore, excluded from the
reciprocal compensation provision of section 251(b)(5).21 At the
same time, the Commission established an interim compensation
arrangement for the delivery of ISP-bound traffic, in which
incumbent LECs generally pay competitive LECs a progressively
decreasing per-minute rate.22 The Commission emphasized,
however, that the new compensation regime applies only
prospectively ``as carriers renegotiate expired or expiring
interconnection agreements,'' and ``does not alter existing
contractual obligations, except to the extent that parties are
entitled to invoke contractual change-of-law provisions.''23
On July 24, 2000, Global NAPs notified Verizon that,
pursuant to paragraph 32 of the merger conditions, it wished to
adopt the Rhode Island Agreement in Virginia and Massachusetts.24
On November 15, 2000, Global NAPs and Verizon agreed that,
effective July 24, 2000, Global NAPs could adopt, in
Massachusetts and Virginia, all provisions of the Rhode Island
Agreement that it could adopt consistent with paragraph 32 of the
merger conditions.25 The parties disagreed, however, about
whether paragraph 32 of the merger conditions entitles Global
NAPs to adopt in Massachusetts and Virginia section 5.7.2.3 of
the Rhode Island Agreement. The parties attempted to settle
their disagreement for about nine months.26 Throughout the
course of their dispute, Verizon continued to send Global NAPs
ISP-bound traffic in Massachusetts and Virginia, but Verizon did
not pay Global NAPs intercarrier compensation for that traffic.27
On April 27, 2001, Global NAPs filed its complaint
alleging that paragraph 32 of the merger conditions required
Verizon to allow Global NAPs to opt into section 5.7.2.3 of the
Rhode Island Agreement in Massachusetts and Virginia.28 Global
NAPs asserts that ``Verizon's conditioning and limitation of
adoption of the Rhode Island Agreement in Virginia and
Massachusetts constitutes a violation of 47 U.S.C. § 201(b)
entitling Global NAPs to a payment of money'' damages.29 The
complaint alleges, therefore, that Verizon owes Global NAPs
``reciprocal compensation payments from July 24, 2000 to the
present for ISP-bound traffic in those states at the appropriate
rate(s) based on the Rhode Island Agreement,''30 which allegedly
amounts to $26,871,153.92. 31 According to Global NAPs, this is
the amount of reciprocal compensation that Verizon owes Global
NAPs for Global NAPs' transport and termination of Verizon-
originated ISP-bound calls in Massachusetts and Virginia from
July 24, 2000 through March 31, 2001.32
III. DISCUSSION
Although we find that paragraph 32 is ambiguous as
applied to the circumstances at issue here, we conclude that it
is best read as requiring Verizon to make available for adoption
in other states the entire Rhode Island Agreement, including
section 5.7.2.3, or any discrete provision thereof.33
Global NAPs focuses on the fact that paragraph 32
requires Verizon to make available for adoption across state
lines any ``provisions of an interconnection agreement (including
an entire agreement) subject to 47 U.S.C. § 251(c) and Paragraph
39 of these Conditions that was voluntarily negotiated by a Bell
Atlantic incumbent LEC....''34 In Global NAPs' view, therefore,
the key question is whether the entire Rhode Island Agreement,
including section 5.7.2.3, is ``subject to 47 U.S.C. § 251(c)''
within the meaning of paragraph 32.
Assuming for the moment that Global NAPs asks the right
question, by focusing on the entire agreement rather than on
individual provisions thereof, we agree with Global NAPs' answer
that the Rhode Island Agreement, including section 5.7.2.3, is
``subject to 47 U.S.C. § 251(c)'' within the meaning of paragraph
32 (and thus Global NAPs is entitled to opt into it.) First,
this interconnection agreement is subject to section 251(c)
because this is the agreement that Verizon negotiated to comply
with its obligations under that section. In other words, this
agreement incorporates the terms governing the exchange of
telecommunications traffic in the state of Rhode Island pursuant
to section 251(c). This agreement embodies not only many of
those terms listed in section 251(c), but other provisions that
the parties found appropriate for inclusion as well. Moreover,
section 251(c)(1) states that an incumbent LEC must ``negotiate
in good faith in accordance with section 252 the particular terms
and conditions of agreements to fulfill the duties described in
paragraphs (1) through (5) of subsection (b) and this
subsection.''35 No one disputes that the Rhode Island Agreement
was negotiated pursuant to section 251(c) or subject to the good
faith provisions of section 251(c). The fact that the agreement
included other provisions does not take it out of the ambit of
section 251(c).36 Accordingly, we find that the entire Rhode
Island Agreement is ``subject to 47 U.S.C. § 251(c)'' as that
phrase is used in paragraph 32 of the merger conditions. Because
this is a section 251(c) agreement and paragraph 32 permits
opting into an ``entire'' such agreement, then under Global NAPs'
approach, the entire Rhode Island Agreement is eligible for
adoption in Virginia and Massachusetts, and Verizon must offer it
to requesting carriers to meet its obligations under the Merger
Order.37
Verizon, however, poses a different initial question
than Global NAPs does. Verizon asserts that the phrase ``subject
to 47 U.S.C. § 251(c)'' limits the terms it must offer to those
that are specifically enumerated in section 251(c)(2)-(6) (e.g.,
unbundled access, collocation); thus, according to Verizon,
because section 251(c) does not specifically address reciprocal
compensation for ISP-bound traffic, paragraph 32 does not require
Verizon to offer a provision, such as section 5.7.2.3, that
concerns such compensation.38 We disagree for two reasons.
First, Verizon's interpretation of paragraph 32 would
require us to read the phrase ``subject to 47 U.S.C. § 251(c)''
as modifying the term ``provisions'' rather than modifying the
directly antecedent language ``interconnection agreement
(including an entire agreement).'' We reject Verizon's
interpretation. We believe that the more natural reading of this
phrase matches the term ``interconnection agreement (including an
entire agreement)'' with its verb ``that was voluntarily
negotiated,'' so that the subject and verb agree. Because the
phrase ``subject to 47 U.S.C. § 251(c)'' modifies ``agreement,''
paragraph 32 allows requesting carriers to opt into an agreement,
or to any discrete provisions thereof, as long as that agreement
was subject to section 251(c). As discussed above in paragraph
11, the Rhode Island Agreement satisfies this requirement.
Second, Verizon's interpretation would mean that
competitors could rarely, if ever, invoke paragraph 32 to opt
into an ``entire agreement.'' Verizon itself indicated in a
joint stipulation that its interconnection agreements in the
former Bell Atlantic territory ``typically contain terms in
addition to those listed in 47 U.S.C. § 251(c)(1)-(6).''39 Under
Verizon's interpretation, requesting carriers would not be
entitled to opt into ``entire agreements'' if the agreements
contain any terms not expressly listed in section 251(c). Thus,
reading paragraph 32 as Verizon contends would render virtually
meaningless the phrase ``including an entire agreement.'' We
decline to construe paragraph 32 in such a cramped manner.
Verizon also argues that ``even if the merger condition
were somehow construed (incorrectly) to apply to matters covered
by section 251(b)(5),'' the Commission's Order on Remand
establishes that Internet-bound traffic is not covered by section
251(b)(5).40 Verizon states that because the Commission has
determined in the Order on Remand that ISP-bound traffic falls
within section 251(g), such traffic must be excluded from section
251(b)(5).41 We find Verizon's arguments to be irrelevant to the
determination in the instant Order. As discussed above, our
conclusion that the Rhode Island Agreement, as a whole, is
subject to section 251(c) does not turn on which statutory
provision governs reciprocal compensation for ISP-bound traffic.
Verizon also asserts that construing paragraph 32 in
the manner sought by Global NAPs would conflict with the Order on
Remand, because the Commission's determination that ISP-bound
traffic is covered by section 251(g) of the Act rather than
section 251(b) demonstrates that ``[p]ayment of inter-carrier
compensation for Internet-bound traffic is . . . contrary to
stated Commission policy.''42 We disagree. The Order on Remand
governs the exchange of ISP-bound traffic on a prospective basis,
after its effective date of June 14, 2001.43 Global NAPs'
complaint, however, asks the Commission to examine Verizon's
actions from July 24, 2000 to March 31, 2001.44 The Order on
Remand expressly ``does not alter existing contractual
obligations, except to the extent the parties are entitled to
invoke contractual change-of-law provisions.''45 Our decision
here fully comports with this determination that pre-existing
contractual obligations between Verizon and Global NAPs remain in
effect. As noted above, on November 15, 2000, Verizon and Global
NAPs entered into an agreement that Global NAPs, as of July 24,
2000, could opt into any provision of the Rhode Island Agreement
to which paragraph 32 applied. Because we find that Global NAPs
was entitled to opt into the entire agreement, we conclude that
the parties' November 15, 2000, agreement qualifies as an
``existing contractual obligation'' that remains unchanged by the
Order on Remand.46
We recognize that the interpretation proposed by Global
NAPs does to some extent render the language ``subject to 47
U.S.C. § 251(c)'' arguably superfluous, because paragraph 32 also
refers to section 252(a)(1) to identify the kind of
interconnection agreements within its scope. Nevertheless, for
the reasons explained above, this interpretation makes far more
sense than the interpretation proffered by Verizon. Thus, we
adopt Global NAPs' approach here.
Finally, we note that paragraph 32 specifically states
that interconnection terms adopted across state lines must be
``consistent with the laws and regulatory requirements of the
state for which the request is made.''47 Thus, we conclude that,
although the Commission may determine whether an agreement is
eligible for adoption pursuant to paragraph 32, only the relevant
state commission may ultimately decide whether particular terms
of the agreement should be adopted in that state, and if so, what
those terms mean.
Because paragraph 32 concerns voluntarily negotiated
agreements, we expect Verizon and Global NAPs to submit the Rhode
Island Agreement to the Virginia and Massachusetts commissions
for approval pursuant to section 252(e)(1) of the Act.48 The
parties should follow the procedures that the Massachusetts and
Virginia commissions have established for submitting such
voluntarily negotiated agreements.49 We also expect that these
agreements will contain section 5.7.2.3 of the Rhode Island
Agreement, if Global NAPs chooses to include it. As specified by
the Act, each state commission will then determine the
acceptability of specific provisions under section 252(e)(2).50
In sum, because paragraph 32 allows for requesting
carriers to opt into entire agreements across state lines,
Verizon should have offered the entire Rhode Island Agreement,
including section 5.7.2.3, to Global NAPs in Virginia and
Massachusetts to satisfy Verizon's commitments under the Merger
Order. Verizon's failure to do so violates section 201(b) of the
Act. Accordingly, we grant Count IV of Global NAPs' complaint.
IV. DAMAGES
Global NAPs asserts that, if we rule that Verizon
violated section 201(b) of the Act by refusing to allow Global
NAPs to adopt in Virginia and Massachusetts section 5.7.2.3 of
the Rhode Island Agreement, we should award Global NAPs
$26,871,153.92 in damages.51 This is the amount that Global NAPs
alleges Verizon would have paid in reciprocal compensation for
ISP-bound traffic in Virginia and Massachusetts from July 24,
2000, through March 31, 2001, based on the minutes of traffic
delivered to Global NAPs and the compensation rate under the
Rhode Island Agreement during that time period.
Global NAPs' request for damages is premature. As
described above, in accordance with this Order, Global NAPs and
Verizon must submit interconnection agreements containing section
5.7.2.3 of the Rhode Island Agreement to the Massachusetts and
Virginia commissions for approval under section 252(e)(1) of the
Act. Only if and when the state commissions approve the
interconnection agreements, pursuant to section 252(e)(2) of the
Act, will the issue of Global NAPs' entitlement to damages under
those agreements be ripe for the appropriate regulatory agency to
adjudicate. Accordingly, we deny Global NAPs' claim for damages
without prejudice.
V. ORDERING CLAUSES
Accordingly, IT IS ORDERED, pursuant to sections 1,
4(i), 4(j), 201(b), and 208 of the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151, 154(i), 154(j), 201(b), 208, that
Global NAPs' complaint IS GRANTED IN PART to the extent described
herein, and in all other respects IS DENIED.
IT IS FURTHER ORDERED, pursuant to sections 1, 4(i),
4(j), and 208 of the Communications Act of 1934, as amended, 47
U.S.C. §§ 151, 154(i), 154(j), 208, that the parties' joint
request to dismiss Verizon Communications, Inc., as a defendant
IS GRANTED.
FEDERAL COMMUNICATIONS COMMISSION
William F. Caton
Acting Secretary
_________________________
1 See Formal Complaint, File No. EB-01-MD-010 (filed Apr. 27,
2001) (``Global NAPs Complaint''). Although Global NAPs
originally named Verizon Communications as a defendant, the
parties jointly requested that we dismiss Verizon Communications
as a defendant. Joint Statement of Stipulated Facts, Disputed
Facts, and Key Legal Issues, File No. EB-01-MD-010, at 2, ¶ 7
(filed June 11, 2001) (``Joint Statement''). We hereby grant
this request.
2 47 U.S.C. § 208.
3 Id. § 201(b).
4 See Application of GTE Corp., Transferor, and Bell Atlantic
Corp., Transferee, for Consent to Transfer Control of Domestic
and International Sections 214 and 310 Authorizations and
Application to Transfer Control of a Submarine Cable Landing
License, Memorandum Opinion and Order, 15 FCC Rcd 14032,
14171-75, ¶¶ 300-05, 14310-11, App. D at ¶ 32 (2000) (``Merger
Order'').
5 Global NAPs Complaint at 2, ¶ 2; Verizon Answer, File No.
EB-01-MD-010, at 13, ¶ 28 (filed May 18, 2001) (``Verizon
Answer'').
6 47 U.S.C. §§ 251, 252.
7 Global NAPs Complaint at 2, ¶ 3; Verizon Answer at 13, ¶ 29.
8 Global NAPs Complaint at 2, ¶ 3; Verizon Answer at 13, ¶ 29.
9 See 47 U.S.C. § 252(a)
10 Joint Statement at 1-2, ¶ 2. Bell Atlantic - Rhode Island
is the predecessor company of Verizon - Rhode Island, Inc., which
is now a subsidiary of Defendant Verizon New England, Inc.
11 Id. at 1-2, ¶ 2. The interconnection agreement reads as
follows: ``5.7.2.3 The Parties stipulate that they disagree as to
whether traffic that originates on one Party's network and is
transmitted to an Internet Service Provider ("ISP") connected to
the other Party's network ("ISP Traffic") constitutes Local
Traffic as defined herein, and the charges to be assessed in
connection with such traffic. The issue of whether such traffic
constitutes Local Traffic on which reciprocal compensation must
be paid pursuant to the 1996 Act is presently before the FCC in
CCB/CPD 97-30 and may be before a court of competent
jurisdiction. The Parties agree that the decision of the FCC in
that proceeding, or as such court, shall determine whether such
traffic is Local Traffic (as defined herein) and the charges to
be assessed in connection with ISP Traffic. If the FCC or such
court determines that ISP Traffic is Local Traffic, as defined
herein, or otherwise determines that ISP Traffic is subject to
reciprocal compensation, it shall be compensated as Local Traffic
under this Agreement unless another compensation scheme is
required under such FCC or court determination. Until resolution
of this issue, BA agrees to pay GNAPS Reciprocal Compensation for
ISP Traffic (without conceding that ISP Traffic constitutes Local
Traffic or precluding BA's ability to seek appropriate court
review of this issue) pursuant to the [Rhode Island] commission's
Order in Case 97-C-1275, dated March 19, 1998, as such Order may
be modified, changed or reversed.'' Global NAPs Complaint at
Exhibit 2, at 22 (quoting Interconnection Agreement Under
Sections 251 and 252 of the Telecommunications Act of 1996
Between Bell Atlantic-Rhode Island and Global NAPs, Inc. (Oct. 1,
1998).).
12 See Implementation of the Local Competition Provision in the
Telecommunications Act of 1996; Intercarrier Compensation for
ISP-Bound Traffic, Declaratory Ruling and Notice of Proposed
Rulemaking, 14 FCC Rcd 3689 (1999) (``Declaratory Ruling''); see
also 47 U.S.C. § 251(b)(5).
13 Declaratory Ruling at 3703, ¶ 21.
14 See Complaint of Global NAPs, Inc., Against Bell Atlantic-
Rhode Island Regarding Reciprocal Compensation, Docket No. 2967,
Report and Order, R.I. P.U.C. (Nov. 16, 1999) (``RIPUC Order'');
Joint Statement at 2, ¶ 3.
15 See RIPUC Order at 4-5.
16 See Bell Atlantic Tel. Cos. v. FCC, 206 F.3d 1 (D.C. Cir.
2000).
17 Bell Atlantic, 206 F.3d at 8.
18 See supra note 4.
19 See Merger Order, 15 FCC Rcd at 14036, ¶ 3-5.
20 Merger Order, 15 FCC Rcd at 14310, App. D at ¶ 32
(``paragraph 32'').
21 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, 9154-56, ¶¶ 4-6 (2001) (``Order on Remand''). Section
251(g) of the Act provides, in pertinent part, that ``each local
exchange carrier, to the extent that it provides wireline
services, shall provide exchange access, information access, and
exchange services for such access to interexchange carriers and
information service providers in accordance with the same equal
access and nondiscriminatory interconnection restrictions and
obligations (including receipt of compensation) that apply to
such carrier on [February 7, 1996].'' 47 U.S.C. § 251(g).
22 Order on Remand, 16 FCC Rcd at 9155-57, ¶¶ 7-8.
23 Id. at 9189, ¶ 82; see id. at 9186-91, ¶¶ 77-85. We note
that, prior to the release of the Order on Remand, on December
27, 2000, the Commission's Common Carrier Bureau (``CCB'') issued
a letter stating that the paragraph 32 condition applies to
reciprocal compensation provisions of interconnection agreements.
See Letter from Carol Mattey, Common Carrier Bureau, to Michael
Shor, Swidler Berlin Sheriff Friedman, LLP, 16 FCC Rcd 22 (2000).
In response to this letter, Verizon asked CCB to clarify its
position regarding the applicability of the condition to
intercarrier compensation for ISP-bound traffic. See Letter from
Gordon Evans, Verizon Communications, to Dorothy Attwood, Common
Carrier Bureau, Feb. 20, 2001. CCB issued a Public Notice on
March 30, 2001, asking ``whether there are grounds to waive or
modify the relevant MFN [most favored nation] conditions.''
Common Carrier Bureau Seeks Comment on Letters Filed by Verizon
and Birch Regarding Most-Favored Nation Condition of
SBC/Ameritech and Bell Atlantic/GTE Orders, Public Notice, 16 FCC
Rcd 6873, 6874 (2001). As of the release date of this Order, the
Commission has taken no action regarding the Public Notice.
24 Global NAPs Complaint at Ex. 5.
25 Joint Statement at 2, ¶ 5; see Global NAPs Complaint at Exs.
3-4 (two letter agreements that both parties signed on
November 15, 2000).
26 See Global NAPs Complaint at Exs. 6-12 (referring to letters
and e-mails that the parties exchanged).
27 Joint Statement at 2, ¶¶ 5-6.
28 In its complaint, Global NAPs labels its various assertions
as ``counts'' that do not make specific allegations of statutory
or regulatory violations, but instead describe legal arguments.
Thus, we construe ``Count I,'' ``Count II,'' and ``Count III'' as
merely parts of the main body of the complaint. See Global NAPs
Complaint at 18-20, ¶¶ 42-48 (Count I), 20-40, ¶¶ 49-90 (Count
II), 40-48, ¶¶ 91-109 (Count III). We view Count IV as Global
NAPs' true claim. See id. at 49, ¶¶ 110-11. Accordingly, Count
IV is the only count that we address in this Order.
29 Id. at 50, ¶ 114.
30 Id. at 49-50, ¶ 113.
31 Id. at 50, ¶ 114.
32 Id.
33 We note that paragraph 32 (in a portion not quoted above)
does create exclusions from the adoptability requirement for
certain items (e.g., paragraph 32 excludes price- and state-
specific performance measures for interconnection arrangements
and UNEs). Any statements in this Order about paragraph 32
requiring the ``entire'' interconnection agreement to be made
available for adoption should not be interpreted as overriding
these exclusions.
34 Merger Order, 15 FCC Rcd at 14310, App. D at ¶ 32 (emphasis
added). Paragraph 39 of the Merger Order, which requires Verizon
to offer unbundled network elements (``UNEs'') in accordance with
the UNE Remand Order and the Line Sharing Order until a final,
non-appealable judicial decision to the contrary, has no bearing
on the issue disputed in this matter. See id. at 14316, App. D
at ¶ 39 (``paragraph 39''); see also Implementation of the Local
Competition Provisions of the Telecommunications Act of 1996,
Third Report and Order and Fourth Further Notice of Proposed
Rulemaking, 15 FCC Rcd 3696 (1999) (``UNE Remand Order'');
Deployment of Wireline Services Offering Advanced
Telecommunications Capability, Third Report and Order, 14 FCC Rcd
20912 (1999) (``Line Sharing Order''). Paragraph 39 merely
leaves in place the requirements contained in certain Commission
orders implementing section 251(c) of the Act subject to
appellate review.
35 47 U.S.C. § 251(c)(1).
36 In contrast, certain pre-1996 Act interconnection agreements
are outside the scope of section 251(c). See Iowa Utilities Bd.
v. FCC, 219 F.3d 744, 762-65 (8th Cir. 2000).
37 As our determination rests on the text of paragraph 32
itself, Verizon's comparisons between the language in the
SBC/Ameritech Merger Order and the language at issue here are
inapposite. See Verizon Answer at 6, ¶ 13; Brief of Defendants
Verizon New England, Inc., and Verizon Virginia, Inc., File No.
EB-01-MD-010, at 4-5 (filed July 16, 2001) (``Verizon Brief'')
(citing Ameritech Corp., Transferor, and SBC Communications,
Inc., Transferee, for Consent to Transfer Control of Corporations
Holding Commission Licenses, Memorandum Opinion and Order, 14 FCC
Rcd 14712 (1999) (``SBC/Ameritech Merger Order'')).
38 See Verizon Answer at 4-8, ¶¶ 7-17; Verizon Brief at 1-6;
Reply Brief of Defendants Verizon New England, Inc., and Verizon
Virginia, Inc., File No. EB-01-MD-010, at 1-6 (filed Aug. 6,
2001) (``Verizon Reply'').
39 Joint Stipulation, File No. EB-01-MD-010, at 1 (filed June
19, 2001).
40 Verizon Answer at 5, ¶ 9; Verizon Brief at 2-3; see also
Letter from Carol Mattey, Common Carrier Bureau, to Michael Shor,
Swidler Berlin Sheriff Friedman, LLP, 16 FCC Rcd 22 (2000)
(stating that section 251(b) is incorporated explicitly into
section 251(c)).
41 Verizon Answer at 4, ¶ 8; Verizon Brief at 2-3.
42 Verizon Brief at 8; see also Verizon Answer at 2-5, ¶¶ 3-8;
Verizon Brief at 1-2; Verizon Reply at 2-3.
43 See 68 Fed. Reg. 26800 (2001).
44 See Global NAPs Complaint at 50, ¶ 114.
45 See Order on Remand, 16 FCC Rcd at 9189, ¶ 82. Verizon
argues that the Order on Remand ``makes clear that any provision
dealing with reciprocal compensation for ISP traffic is not and
has never been subject to section 252(i).'' Verizon Reply at 11.
We disagree. The Order on Remand specifically states that ``as
of the date this Order is published in the Federal Register,
carriers may no longer invoke section 252(i) to opt into an
existing interconnection agreement with regard to rates paid for
the exchange of ISP-bound traffic.'' Order on Remand, 16 FCC Rcd
at 9189, ¶ 82. The statement that carriers may ``no longer''
invoke section 252(i) ``as of this date'' indicates that, prior
to this date, such provisions were eligible for opt-in pursuant
to section 252(i).
46 We do expect, however, that once these agreements expire,
the Order on Remand will govern the exchange of ISP-bound traffic
between Global NAPs and Verizon. See Merger Order, 15 FCC Rcd at
14172, ¶ 301.
47 Id. at 14310, App. D at ¶ 32.
48 See 47 U.S.C. § 252(e)(1) (requiring interconnection
agreements to be submitted to state commissions for approval).
49 Verizon indicated orally to Commission staff and Global NAPs
that staff at the Virginia commission has stated informally that
Verizon should not submit agreements opted into from other states
with the Virginia commission. In the absence of an official
state ruling that indicates otherwise, however, we cannot assume
that the Virginia or Massachusetts commissions will decline to
carry out their responsibilities set forth in section 252 of the
Act.
50 See 47 U.S.C. § 252(e)(2)(A) (listing the grounds upon which
state commissions reject negotiated interconnection agreements).
51 See Global NAPs Complaint at 49-50, ¶¶ 113-14.