Federal Communications Commission                                     FCC 99-381

MEMORANDUM OPINION AND ORDER

Adopted: December 2, 1999         ;         Released: December 2, 1999

By the Commission:

1. In this Memorandum Opinion and Order, we resolve a formal complaint brought by various Bell Atlantic companies (collectively, Bell Atlantic) against a competitive local exchange carrier (CLEC), Global NAPs, Inc. (Global NAPs), pursuant to section 208 of the Communications Act of 1934, as amended (Act or Communications Act).[1] The complaint challenges the lawfulness and application of certain Global NAPs tariff provisions that purport to charge a per-minute interstate rate for Internet calls, specifically, calls originated by Bell Atlantic customers that are handed off to Global NAPs for delivery to Internet service providers (ISPs).[2]

2. As explained below, we conclude that the challenged provisions of Global NAPs' tariff, as applied to ISP-bound traffic delivered by Bell Atlantic to Global NAPs in Massachusetts, are unjust and unreasonable under section 201(b) of the Act,[3] because those tariff provisions condition the imposition of charges on circumstances that were indeterminate when the tariff took effect and remain indeterminate today. In particular, the challenged tariff provisions purport to apply only to ISP-bound traffic for which Global NAPs receives no compensation from Bell Atlantic under the parties' existing interconnection agreement; however, the Massachusetts Department of Telecommunications and Energy (Massachusetts DTE) has yet to make a final determination whether and how the parties' existing interconnection agreement provides for inter-carrier compensation for ISP-bound traffic. Moreover, we conclude that the challenged tariff provisions violate section 61.74(a) of our rules, because they refer to a document other than the Tariff itself, i.e., an interconnection agreement.[4] Accordingly, we hereby grant Bell Atlantic's complaint and hold that Sections 7 and 7A of Global NAPs' Tariff F.C.C. No. 1 are unlawful.

A. Events Preceding the Commission's Reciprocal Compensation Order

3. On April 15, 1997, Global NAPs and New England Telephone and Telegraph Company for Massachusetts (Bell Atlantic) entered into an interconnection agreement that continues until April 15, 2000.[5] Pursuant to this agreement, Bell Atlantic carries traffic from its end user customers in Massachusetts to a point of interconnection with Global NAPs in Massachusetts; then Global NAPs delivers the traffic from the point of interconnection to its ISP customers in Massachusetts.[6]

4. The parties' interconnection agreement provides that "[r]eciprocal compensation only applies to the transport and termination of Local Traffic billable by NYNEX [now Bell Atlantic] which a Telephone Exchange Service Customer originates on NYNEX's or Global NAPs' network for termination on the other Party's network."[7] "Local Traffic" is defined as "a call which is originated and terminated within a given LATA, in the Commonwealth of Massachusetts. . . ."[8] The interconnection agreement further provides that the parties "shall compensate each other for the transport and termination of Local Traffic in an equal and symmetrical manner at the rate provided in the Pricing Schedule."[9] According to the Pricing Schedule, reciprocal compensation for "Local Traffic" is $.008 per-minute.[10]

5. The parties executed their interconnection agreement despite their inability to reach a consensus on whether the above-quoted language in the interconnection agreement requires payment of reciprocal compensation for traffic that is delivered to ISPs, i.e., calls made by one carrier's customers that are handed off to the other carrier for delivery to the latter carrier's ISP customers.[11] In place of such a consensus, the parties agreed to interpret the applicable language in their agreement in the same manner in which identical language in other Bell Atlantic/CLEC interconnection agreements was ultimately interpreted by the Massachusetts DTE.[12]

6. On June 26, 1998, MCI WorldCom Technologies, Inc. (MCI WorldCom), which provides competitive local exchange service in Massachusetts, filed a complaint against Bell Atlantic before the Massachusetts DTE regarding Bell Atlantic's failure to pay reciprocal compensation for ISP-bound traffic pursuant to their interconnection agreement.[13] On October 21, 1998, the Massachusetts DTE ruled in favor of MCI WorldCom, holding that the parties' agreement requires Bell Atlantic to pay reciprocal compensation for ISP-bound traffic.[14] The Massachusetts DTE noted that other CLECs' interconnection agreements (including Global NAPs') with Bell Atlantic contain identical provisions and directed Bell Atlantic to pay the applicable reciprocal compensation rate contained in those agreements, as well.[15] The express and exclusive basis for the Massachusetts DTE's decision was that: (a) the link between the caller and the ISP in ISP-bound traffic is jurisdictionally severable from the continuing link from the ISP to the target Internet site; (b) ISP-bound traffic is a "local" call under federal law and the interconnection agreement; and (c) ISP-bound traffic is subject to the Massachusetts DTE's jurisdiction as an intrastate call.[16] In essence, the Massachusetts DTE viewed an Internet call as effectively two calls: a local call from the end user to the ISP, and a non-local call from the ISP to the Internet, i.e., the "two-call" theory.[17]

B. The Commission's Reciprocal Compensation Order

7. On February 26, 1999, in response to a number of requests to clarify whether reciprocal compensation applies to ISP-bound traffic, we released the Reciprocal Compensation Order.¹⁸ In that Order, we concluded that ISP-bound traffic "is jurisdictionally mixed and appears to be largely interstate in nature."[19] In reaching this conclusion, we "analyze[d] ISP traffic for jurisdictional purposes as a continuous transmission from the end user to a distant Internet site."[20] Applying this analysis, we found that ISP-bound traffic "do[es] not terminate at the ISP's local server, . . . but continues to the ultimate destination or destinations, specifically at an Internet website that is often located in another state."[21] We expressly rejected the argument -- on which the Massachusetts DTE had heavily relied in its October 21, 1998 order -- that ISP-bound calls consist of severable local and non-local components, reasoning that "this argument is inconsistent with Commission precedent . . . holding that communications should be analyzed on an end-to-end basis, rather than by breaking the transmission into component parts."[22]

8. We emphasized, however, that our conclusion that ISP-bound traffic is largely interstate "does not in itself determine whether reciprocal compensation is due in any particular instance."[23] As we explained, there currently is no federal rule governing inter-carrier compensation for ISP-bound traffic.[24] Consequently, whether such compensation is due in any particular instance hinges on the parties' contractual intent in entering into their interconnection agreement, or on the state commission's application of other legal or equitable principles to the parties' compensation dispute.[25]

9. Regarding the parties' intent, we stated that, given the absence of a federal rule governing inter-carrier compensation for ISP-bound traffic, "parties may [have] voluntarily include[d] this traffic within the scope of their interconnection agreements under sections 251 and 252 of the Act. . . ."[26] We explained that, where a state commission determines that the parties did, indeed, voluntarily include compensation for ISP-bound traffic in their interconnection agreement, the parties "are bound by those [interconnection] agreements, as interpreted and enforced by the state commission[]."[27] Moreover, we determined that such deference to state commission interpretations of parties' contractual intent regarding compensation for ISP-bound traffic applies to state commission decisions that post-date, as well as pre-date, the Reciprocal Compensation Order.²⁸

10. We went on to explain that, even where a state commission concludes that the parties did not voluntarily agree on an inter-carrier compensation mechanism for ISP-bound traffic, "state commissions nonetheless may determine in their arbitration proceedings at this point that reciprocal compensation should be paid for this traffic. . . . By the same token, in the absence of governing federal law, state commissions also are free not to require the payment of reciprocal compensation for this traffic and to adopt another compensation mechanism."[29] Indeed, we observed that, "[i]n the absence of a federal rule, state commissions that have had to fulfill their statutory obligation under section 252 to resolve interconnection disputes between incumbent LECs and CLECs have had no choice but to establish an inter-carrier compensation mechanism and to decide whether and under what circumstances to require the payment of reciprocal compensation."[30] We, therefore, concluded that "[u]ntil adoption of a final [federal] rule, state commissions will continue to determine whether reciprocal compensation is due for this traffic," pursuant to their authority to approve interconnection agreements under sections 251 and 252 of the Act.[31] In sum, "in the absence of a federal rule, state commissions have the authority under section 252 of the Act to determine inter-carrier compensation for ISP-bound traffic," even where the parties' existing interconnection agreement is silent on the subject.[32]

C. Events After the Commission's Reciprocal Compensation Order

11. On April 14, 1999, Global NAPs filed with this Commission the federal tariff at issue here.[33] Global NAPs filed the Tariff on one day's notice pursuant to section 61.23(c) of our rules.[34] The Tariff purports to charge an interstate rate of $.008 per minute for all ISP-bound calls for which Global NAPs does not receive compensation under an interconnection agreement.[35] Towards that end, the Tariff states:

This tariff applies to telecommunications delivered to the Company [i.e., Global NAPs] by a local exchange carrier (the "Delivering LEC") for further delivery to an Internet Service Provider ("ISP") which obtains connections to the public switched network from the Company. This tariff applies to all ISP-bound traffic for which the Company does not receive compensation from the Delivering LEC under the terms of an interconnection agreement entered into pursuant to Sections 251 and 252 of the Communications Act of 1934, as amended (an "Interconnection Agreement").[36]

12. On May 19, 1999, the Massachusetts DTE vacated its October 21, 1998 decision, concluding that our Reciprocal Compensation Order had invalidated the "two-call" theory on which the Massachusetts DTE had asserted jurisdiction over, and required reciprocal compensation for, ISP-bound traffic.[37] The Massachusetts DTE ruled, therefore, that Bell Atlantic is not presently required to pay reciprocal compensation for ISP-bound traffic, retroactive to February 26, 1999.[38] The Massachusetts DTE expressly preserved the possibility, however, that provisions within existing interconnection agreements not inextricably bound to the "two-call" theory might require the payment of some compensation for the delivery of ISP-bound traffic.[39] Indeed, the Massachusetts DTE repeatedly acknowledged that, notwithstanding its vacation of its October 21, 1998 Order, the issue of whether existing interconnection agreements between Bell Atlantic and CLECs require some form of compensation for ISP-bound traffic remains a live dispute.[40] Accordingly, in express reliance on the directives contained in our Reciprocal Compensation Order, the Massachusetts DTE stated that Bell Atlantic and applicable CLECs, including Global NAPs, should negotiate about the appropriate compensation mechanism for inter-carrier delivery of ISP-bound traffic pursuant to section 252 of the Act.[41] The Massachusetts DTE also offered to provide a mediator pursuant to section 252(a)(2) to facilitate the parties' negotiations.[42] The Massachusetts DTE further observed:

If these negotiations do not resolve the present interconnection agreement dispute, the Department can arbitrate the matter under section 252(b). At that time, consistent with the discretion we have been given by the FCC (at least until the NPRM is settled), the Department would resolve whatever issues are put before it.[43]

13. On May 27, 1999, Global NAPs forwarded a bill to Bell Atlantic pursuant to Sections 7 and 7A of its FCC Tariff No. 1, in which it sought payment, in the amount of $1,726,679, for ISP-bound traffic that Bell Atlantic delivered to Global NAPs in Massachusetts between April 15, 1999 and April 30, 1999.[44] Bell Atlantic has refused to pay this bill.[45] Subsequent to April 30, 1999, Global NAPs has forwarded to Bell Atlantic additional similar bills pursuant to its FCC Tariff No. 1, which Bell Atlantic has also not paid.[46]

14. On July 8, 1999, Bell Atlantic filed the instant complaint pursuant to section 208 of the Act challenging the lawfulness of Sections 7 and 7A of Global NAPs' F.C.C. Tariff No. 1. In its complaint, Bell Atlantic seeks a Commission finding that those tariff provisions are unjust and unreasonable under section 201(b) of the Act for the following reasons. First, Bell Atlantic claims that Global NAPs' tariff violates the so-called "ESP exemption," because said exemption allegedly precludes any carrier from assessing any per-minute interstate charges on ISP-bound traffic.[47] Second, Bell Atlantic argues that, if the ESP exemption does not apply, then Global NAPs' tariff violates our rules governing inter-carrier shared access arrangements, because said rules allegedly preclude carriers that jointly provide access service from charging each other for such service, and may even require Global NAPs to reimburse Bell Atlantic for a portion of the fees that Global NAPs receives from its ISP customers.[48] Third, Bell Atlantic asserts that Global NAPs' tariff violates our decision in the Reciprocal Compensation Order that, until a federal rule is adopted, the issue of compensation for inter-carrier delivery of ISP-bound traffic must be addressed exclusively through negotiations and state arbitrations under sections 251 and 252 of the Act.[49] Fourth, Bell Atlantic maintains that Global NAPs' tariff constitutes "cramming," because Bell Atlantic allegedly has not agreed to subscribe to the tariffed services at issue;[50] and finally, Bell Atlantic claims that Global NAPs' tariffed rates are unreasonably high.[51] For the reasons described below, we find that Global NAPs' tariff is unlawful, but for reasons other than those asserted by Bell Atlantic.[52]

15. The parties do not dispute one principle: the Reciprocal Compensation Order holds that carriers whose interconnection agreements include an inter-carrier compensation mechanism for ISP-bound traffic must abide by the state commission's determination regarding the existence and meaning of the mechanism.[53]

16. As described above, the Massachusetts DTE has yet to make a full and final determination whether the existing interconnection agreement between Bell Atlantic and MCI WorldCom -- and by extension, other CLECs, including Global NAPs -- provides for any inter-carrier compensation for ISP-bound traffic.[54] Not only did the Massachusetts DTE state repeatedly in its May 19, 1999 Order that this issue remains live and disputed, but the May 19, 1999 Order itself (from which 2 of the 5 Commissioners partially dissented) is the subject of several pending petitions for reconsideration.[55] Moreover, on April 16, 1999, Global NAPs filed with the Massachusetts DTE a complaint against Bell Atlantic regarding this very issue, and the Massachusetts DTE has not yet resolved Global NAPs' complaint.[56] Indeed, in its briefs here, Global NAPs acknowledges (albeit in passing) that the Massachusetts DTE still could decide that the existing interconnection agreement between the parties requires Bell Atlantic to compensate Global NAPs in some way for the delivery of ISP-bound traffic.[57]

17. Sections 251 and 252 of the Act create, inter alia, negotiation and arbitration procedures for CLECs to interconnect with incumbent LECs in order to provide competing communications services. Congress gave exclusive authority over those processes to state commissions, even though the interconnection matters encompassed by sections 251 and 252 have both interstate and intrastate aspects.[58] Thus, the fact that ISP-bound traffic is largely interstate does not necessarily mean that such traffic cannot fall within the state-supervised negotiation and arbitration processes set forth in sections 251 and 252.[59]

18. A careful reading of sections 251 and 252 reveals, in fact, that ISP-bound traffic may fall within the state-supervised negotiation and arbitration processes set forth therein.[60] It is beyond debate that the rates, terms, and conditions under which carriers will exchange traffic may be essential terms of some interconnection agreements. Moreover, sections 252(b)(1), (b)(4)(C), and (c)(1) require a state commission to resolve any "open issues" between the parties negotiating an interconnection agreement, and, in doing so, to ensure that such resolution meets the requirements of section 251.[61] Section 251(d)(3) specifically preserves state authority to impose any "access and interconnection obligations" that are not either inconsistent with or disruptive of the requirements and purposes of the Act.[62] Thus, it was within our discretion to direct in the Reciprocal Compensation Order that, on an interim basis, inter-carrier compensation for ISP-bound traffic should be treated as an "open issue" subject to the state-supervised negotiation/mediation/arbitration processes set forth in sections 251 and 252 of the Act. Accordingly, whether the existing interconnection agreement between Bell Atlantic and Global NAPs does or should provide for inter-carrier compensation for ISP-bound traffic is an appropriate area of inquiry for the Massachusetts DTE under sections 251 and 252 of the Act, even though ISP-bound traffic is largely interstate.

19. Global NAPs does not appear to argue otherwise. In fact, Global NAPs (along with other Intervenors) filed a brief in the appeal of the Reciprocal Compensation Order contending (consistent with our analysis here) that state commissions do have authority under sections 251 and 252 of the Act to determine whether interconnection agreements do or should contain inter-carrier compensation mechanisms for ISP-bound traffic.[63]

20. Global NAPs points to our brief in the appeal of the Reciprocal Compensation Order to support its position that, until we adopt a federal rule on the subject, state commissions have concurrent, not exclusive, authority to establish inter-carrier compensation for ISP-bound traffic.[64] This means, in Global NAPs' view, that its federal tariff properly invokes the Commission's concurrent jurisdiction. The Commission, however, speaks through its orders, and nothing in our Reciprocal Compensation Order changes the analysis herein.

21. We need not decide here in the abstract whether Global NAPs may file any tariff addressing compensation for terminating ISP-bound traffic, because we find the tariff before us to be unjust and unreasonable. Section 7A.1 of the tariff provides that the tariff applies "to all ISP-bound traffic for which the Company does not receive compensation from the Delivering LEC under the terms of an interconnection agreement entered into pursuant to sections 251 and 252 of the Communications Act. . . ."[65] As first explained above, however, the parties do not know at this time whether compensation is due pursuant to their agreement, and will not know until the Massachusetts DTE makes its final determination. Indeed, they have apparently been unsure of the answer to this question even since the agreement was signed.[66] Thus, the parties are unable today to determine whether this tariff is actually applicable. We find that Global NAPs has acted unreasonably in implementing tariff provisions under which the purported customer cannot readily discern whether it is incurring the tariffed charges at the time that they are allegedly incurred. We find that Global NAPs cannot reasonably bill Bell Atlantic under this tariff when the very applicability of the tariff has yet to be determined.

22. The contingent and unclear applicability of the tariff defies the Commission's longstanding interpretation of section 201(b) of the Act, as reflected in section 61.2 of our rules.[67] Those authorities require that the applicability of the tariff rate, and its terms, be clear and explicit.

23. Moreover, it seems evident 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 party's interconnection agreement, as construed by the appropriate state commission. Using the tariff process to circumvent the section 251 and 252 processes cannot be allowed. In this regard, we find the tariff to be unreasonable in another respect. Section 7A.1 purports to apply the tariff even when a valid interconnection agreement could be in place. That is, the tariff by its terms applies not simply where no agreement addresses compensation for the traffic at issue, but in any circumstance where Global NAPs does not receive compensation. It is certainly possible that parties could have addressed ISP-bound traffic in their agreements without requiring payment to the terminating carrier, e.g., by agreeing to a bill and keep arrangement. This tariff provision seems to purport to override any such agreement.

24. Finally, in addition to the above findings, Global NAPs' tariff is unlawful on independent grounds. In particular, its tariff is not self-contained, but instead cross references, impermissibly, "an interconnection agreement."[68] This violates section 61.74(a) of our rules,[69] which provides that, in the absence of a waiver granted under sections 61.151, 61.152, and 61.153 of the Commission's rules,[70] "no tariff publication filed with the Commission may make reference to any other tariff publication or to any other document or instrument."[71] As the Commission has declared previously,

"a tariff should be complete when filed. Confusion may result if references to other tariffs [or documents] are allowed since all important information will not be consolidated in one place and references may be incomplete. In addition, referenced documents may not be easily accessible to the public."[72]

Global NAPs' improper cross-referencing of an exogenous document renders the challenged tariff provisions unlawful and is an independent and sufficient basis for granting Bell Atlantic's complaint.[73]

25. For the foregoing reasons, we grant Bell Atlantic's complaint and hold that Sections 7 and 7A of Global NAPs' tariff are unlawful under section 201(b) of the Act. In addition, we find that Sections 7 and 7A of Global NAPs' tariff are unlawful, because they do not comply with Part 61 of our rules.

26. Having found that the Tariff is unlawful for the reasons set forth above, we need not reach each of the other grounds asserted by Bell Atlantic in its complaint. We caution that this does not, however, constitute a conclusion that the Tariff is reasonable with respect to issues not raised or discussed here.

27. Accordingly, IT IS ORDERED, pursuant to sections 4(i), 4(j), 201(b), and 208 of the Communications Act of 1934, as amended, 47 U.S.C. §§ 154(i), 154(j), 201(b), and 208 and sections 61.2 and 61.74 of the Commission's rules, 47 C.F.R. §§ 61.2, 61.74, that Bell Atlantic's complaint is GRANTED, to the extent indicated herein.

FEDERAL COMMUNICATIONS COMMISSION Magalie Roman Salas Secretary

¹     47 U.S.C. § 208.

²     Specialized Common Carrier Service Regulations and Rates of Global NAPs, Inc., Tariff F.C.C. No. 1 (Tariff) at 82-83, Sections 7, 7A.1, 7A.2, 7A.3, 7A.4 (effective April 15, 1999).

³     47 U.S.C. § 201(b).

⁴     47 C.F.R. § 61.74(a).

⁵     See Interconnection Agreement under Sections 251 and 252 of the Telecommunications Act of 1996, by and between New England Telephone and Telegraph Company and Global NAPs for Massachusetts (April 15, 1997) (Bell Atlantic-Global NAPs Interconnection Agreement), attached to Letter from Karlyn D. Stanley to Magalie Roman Salas, dated August 10, 1999, File No. E-99-22. The agreement will automatically renew and remain in effect unless (1) either party gives notice of termination at least 60 days before April 15, 2000, or (2) after that date, either party gives a 90-day notice of termination. Id. at 36, Section 21; see also Global NAPs Answer, File No. E-99-22 (filed July 28, 1999) (Global NAPs Answer) at Attachment C.

⁶     See Bell Atlantic-Global NAPs Interconnection Agreement at 14, Section 5.7.2; see also Joint Statement of Stipulated Facts, Disputed Facts and Key Legal Issues Pursuant to Section 1.732(h) and Joint Statement Pursuant to Section 1.733(7)(b)(2), File No. E-99-22 (filed August 10, 1999) (Joint Statement) at 2.

⁷     Bell Atlantic-Global NAPs Interconnection Agreement at 14, Section 5.7.1. According to section 252 of the Act, "reciprocal compensation" arrangements must (1) provide for the "mutual and reciprocal recovery by each carrier of costs associated with the transport and termination on each carrier's network facilities of calls that originate on the network facilities of the other carrier," and (2) "determine such costs on the basis of a reasonable approximation of the additional costs of terminating such calls." 47 U.S.C. § 252(d)(2)(A).

⁸     Bell Atlantic-Global NAPs Interconnection Agreement at 5, Section 1.38.

⁹     Bell Atlantic-Global NAPs Interconnection Agreement at 14, Section 5.7.2.

¹⁰     Bell Atlantic-Global NAPs Interconnection Agreement at 8, Pricing Schedule.

¹¹     See Chronology of Events Submitted Pursuant to Staff Request of August 3, 1999, File No. 99-22 (filed August 11, 1999) (Chronology of Events) at 11-12.

¹²     Chronology of Events at 11-12.

¹³     Complaint of MCI WorldCom, Inc. v. New England Telephone and Telegraph Company d/b/a Bell Atlantic-Massachusetts, Commonwealth of Massachusetts Department of Telecommunications and Energy, D.T.E. 97-116-C (filed June 26, 1998), attached to Letter from Karlyn D. Stanley to Magalie Roman Salas, dated August 10, 1999, File No. E-99-22.

¹⁴     See Complaint of MCI WorldCom, Inc. v. New England Telephone and Telegraph Company d/b/a Bell Atlantic-Massachusetts, Commonwealth of Massachusetts Department of Telecommunications and Energy, D.T.E. 97-116 (Mass. D.T.E. rel. October 21, 1998) (Massachusetts DTE October 21, 1998 Order) at 12, attached to Letter from Karlyn D. Stanley to Magalie Roman Salas, dated August 10, 1999, File No. E-99-22.

¹⁵     See Massachusetts DTE October 21, 1998 Order at 14.

¹⁶     See Massachusetts DTE October 21, 1998 Order at 6, 11-13.

¹⁷     See Massachusetts DTE October 21, 1998 Order at 11-12.

¹⁸     Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, Inter-Carrier Compensation for ISP-Bound Traffic, CC Docket Nos. 96-98, 99-68, Declaratory Ruling and Notice of Proposed Rulemaking, 14 FCC Rcd 3689, 3703, 3707, ¶¶ 1, 23, 28 (Feb. 26, 1999) (Reciprocal Compensation Order).

¹⁹     Reciprocal Compensation Order, 14 FCC Rcd at 3689-90, ¶ 1; see also id. at 3697, 3701-3, 3704-5, ¶¶ 12, 18, 20, 23, 24.

²⁰     Reciprocal Compensation Order, 14 FCC Rcd at 3698-9, ¶ 13.

²¹     Reciprocal Compensation Order, 14 FCC Rcd at 3697, ¶ 12.

²²     Reciprocal Compensation Order, 14 FCC Rcd at 3700, ¶ 15.

²³     Reciprocal Compensation Order, 14 FCC Rcd at 3689, ¶ 1.

²⁴     Reciprocal Compensation Order, 14 FCC Rcd at 3689, 3690, 3695, 3703, 3704-5, ¶¶ 1, 9, 22, 24, 25, 26; see also Joint Statement at 2.

²⁵     Reciprocal Compensation Order, 14 FCC Rcd at 3703-4, 3706, ¶¶ 22, 24, 27.

²⁶     Reciprocal Compensation Order, 14 FCC Rcd at 3703, ¶ 22; see also id. at 3703-4, ¶¶ 21, 24.

²⁷     Reciprocal Compensation Order, 14 FCC Rcd at 3703, ¶ 22 (emphasis added); see also id. at 3689-90, 3703-4, ¶¶ 1, 21, 24.

²⁸     Reciprocal Compensation Order, 14 FCC Rcd at 3703-4, ¶ 24 ("Nothing in this Declaratory Ruling, therefore, necessarily should be construed to question any determination a state commission has made, or may make in the future, that parties have agreed to treat ISP-bound traffic as local traffic under existing interconnection agreements.") (emphasis added); see also id. at 3707, ¶ 28 ("[T]he Commission's holding that parties' agreements, as interpreted by state commissions, should be binding also applies to those state commissions that have not yet addressed the issue.").

²⁹     Reciprocal Compensation Order, 14 FCC Rcd at 3704-5, ¶¶ 25, 26 (footnotes omitted).

³⁰     Reciprocal Compensation Order, 14 FCC Rcd at 3705-6, ¶ 26.

³¹     Reciprocal Compensation Order, 14 FCC Rcd at 3707, ¶ 28.

³²     Reciprocal Compensation Order, 14 FCC Rcd at 3706, n.87. In the Reciprocal Compensation Order, the Commission also issued a notice of proposed rulemaking (NPRM) in which the Commission "tentatively conclude[d] that, as a matter of federal policy, the inter-carrier compensation for this interstate telecommunications traffic should be governed prospectively by interconnection agreements negotiated and arbitrated under sections 251 and 252 of the Act." Id. at 3707, ¶ 30. The comment cycle for this NPRM has concluded, and the Commission expects to issue an order resolving that proceeding in the near future.

³³     Specialized Common Carrier Service Regulations and Rates of Global NAPs, Inc., Tariff F.C.C. No. 1 (effective April 15, 1999).

³⁴     47 C.F.R. § 61.23(c).

³⁵     Specialized Common Carrier Service Regulations and Rates of Global NAPs, Inc., Tariff F.C.C. No. 1, at 82-83, Sections 7A.1, 7A.4 (effective April 15, 1999); see also Joint Statement at 1-2.

³⁶     Specialized Common Carrier Service Regulations and Rates of Global NAPs, Inc., Tariff F.C.C. No. 1, at 82, Section 7A.1 (effective April 15, 1999). Moreover, section 7A.2 of Global NAPs' tariff provides that "[a] delivering LEC with which Company has an Interconnection Agreement may avoid charges under this Tariff by agreeing to treat ISP-bound calls delivered to Company as 'local traffic' subject to reciprocal compensation under Section 251(b)(5) and applicable terms of the Interconnection Agreement. Failure by such a carrier to actually compensate Company for ISP-bound traffic as local traffic under the terms of an Interconnection Agreement shall constitute an election to compensate Company under the terms of this Tariff." Specialized Common Carrier Service Regulations and Rates of Global NAPs, Inc., Tariff F.C.C. No. 1, at 82, Section 7A.2 (effective April 15, 1999). In addition, Section 7A.3 of Global NAPs' tariff provides that "[t]his tariff applies to all ISP-bound traffic that is subject to the jurisdiction of the Federal Communications Commission. To the extent that a Delivering LEC asserts that the terms of an Interconnection Agreement do not apply to some or all ISP-bound traffic due to the jurisdictionally interstate nature of such traffic, that assertion shall constitute a binding election to treat all ISP-bound traffic not subject to an Interconnection Agreement as jurisdictionally interstate and subject to this tariff." Id. at 82, Section 7A.3.

³⁷     See Complaint of MCI WorldCom, Inc. v. New England Telephone and Telegraph Company d/b/a Bell Atlantic-Massachusetts, Commonwealth of Massachusetts Department of Telecommunications and Energy, D.T.E. 97-116-C (Mass. D.T.E. rel. May 19, 1999) (Massachusetts DTE May 19, 1999 Order), attached to Bell Atlantic Complaint, Attachment A at 24-25.

³⁸     See Massachusetts DTE May 19, 1999 Order at 28.

³⁹     In this regard, the Massachusetts DTE stated:

During negotiations, the parties to this agreement may determine that adequate pricing and other terms for these transactions are already governed by other contract provisions (and, certainly, arguments along these lines have been advanced in the CLECs' comments. . . .). Or else, accepting or at least acquiescing in our view of Section 5.8 of the interconnection agreement, they may jointly conclude that the present agreement is silent on the point and needs to be supplemented to provide new terms for these mutual services. They are free to arrive at either judgment in coming to terms over the present dispute. The best outcome is for Bell Atlantic and MCI WorldCom (or other CLECs where other interconnection agreements are concerned) to arrive at a resolution themselves. A far less satisfactory outcome is for the Department to have to interpret, or even to supply, terms, because the parties cannot agree. Massachusetts DTE May 19, 1999 Order at 29 (emphases added).

⁴⁰     The Massachusetts DTE stated, for example:

Although MCI WorldCom and Bell Atlantic may still disagree about reciprocal compensation obligations under their interconnection agreement, there is - post February 26, 1999 - no valid and effective D.T.E. order still in place to resolve their dispute. Unsatisfying as it may be to say so, all that remains is a now-unresolved dispute.

Massachusetts DTE May 19, 1999 Order at 25-26 (emphases added). See also, Massachusetts DTE May 19, 1999 Order at 27 ("MCI WorldCom may choose to renew its complaint upon some claim that Massachusetts contract law or 'other legal or equitable considerations' give rise to mutual obligation on its and Bell Atlantic's parts to pay reciprocal compensation for ISP-bound traffic, even despite the FCC's jurisdictional pronouncement.") (emphasis added); Massachusetts DTE May 19, 1999 Order at 27 n.29 ("We do not, at this point, hazard a judgment whether such an alternative basis exists in the Bell Atlantic-MCI WorldCom interconnection agreement before us. If such a basis can be convincingly shown, then it would not be the Department's role to save contracting parties from later-regretted commercial judgments."); Massachusetts DTE May 19, 1999 Order at 28 n.30 (declining to rule whether MCI WorldCom must refund reciprocal compensation payments made by Bell Atlantic prior to the Reciprocal Compensation Order, because "[t]o do so now would be premature," given the continuing possibility that the existing interconnection agreement might be construed to have required such payments by Bell Atlantic.); n. 39, supra.

⁴¹     See Massachusetts DTE May 19, 1999 Order at 30 ("[W]e expect carriers to begin the voluntary negotiation process provided in section 252 of the 1996 Act, in order to establish insofar as may be warranted, an inter-carrier compensation mechanism that would apply to compensation for all ISP-bound traffic that was not disbursed as of February 26, 1999, as well as all later-occurring ISP-bound traffic.").

⁴²     See Massachusetts DTE May 19, 1999 Order at 30 ("If need be, we would be willing to provide a Department mediator to facilitate agreement, pursuant to the mediation provision of section 252(a)(2).").

⁴³     See Massachusetts DTE May 19, 1999 Order at 30.

⁴⁴     Bell Atlantic Complaint at Attachment B; see also Joint Statement at 2.

⁴⁵     See Global NAPs Answer, Proposed Findings of Fact, at 2-3.

⁴⁶     See Global NAPs Answer, Proposed Findings of Fact, at 2-3.

⁴⁷     Bell Atlantic Complaint at 3, 8-9, 15 (citing Reciprocal Compensation Order, 14 FCC Rcd at 3700, ¶ 16; GTE Telephone Operating Cos., GTOC Tariff No. 1 GTOC Transmittal No. 1148, CC Docket No. 98-79, Memorandum Opinion and Order, 13 FCC Rcd 22466 (1998) (GTE ADSL Order)); Bell Atlantic's Brief on Non-Cost Issues, File No. E-99-22 (Bell Atlantic Non-Cost Brief) at 2, 6, 7-8 (filed Sept. 2, 1999) (citing GTE ADSL Order, 13 FCC Rcd at 22469-70, ¶ 7; MTS and WATS Market Structure, CC Docket No. 78-72, Memorandum Opinion and Order, Phase I, 97 F.C.C. 2d 682, 721 (1983) (MTS and WATS Market Structure Order)); Bell Atlantic Reply Brief on Non-Cost Issues, File No. E-99-22 (Bell Atlantic Non-Cost Reply Brief) at 2, 13-15 (filed Sept. 15, 1999) (citing MTS and WATS Market Structure Order, 97 FCC 2d 682, 721; Reciprocal Compensation Order, 14 FCC Rcd at 3705-6, ¶ 26.).

⁴⁸     Bell Atlantic Complaint at 3, 9-10 (citing Access Billing Requirements for Joint Service Provision, CC Docket No. 87-579, Memorandum Opinion and Order, 4 FCC Rcd 7183, 7185-86 (1989); Waiver of Access Billing Requirements and Investigation of Permanent Modifications, CC Docket No. 86-104, Memorandum Opinion and Order, 2 FCC Rcd 4518, 4519 (1987); Investigation of Access and Divestiture Related Tariffs, CC Docket No. 83-1145, Memorandum Opinion and Order, Phase I, 97 F.C.C. 2d 1082, 1176-77 (1984)); Bell Atlantic Non-Cost Brief, at 2, 8-9 (citing Reciprocal Compensation Order, 14 FCC Rcd at 3695, ¶ 9; Access Billing Requirements for Joint Service Provision, 4 FCC Rcd 7183, ¶¶ 22-24; Waiver of Access Billing Requirements and Investigation of Permanent Modifications, 2 FCC Rcd 4518, ¶¶ 39-40; Investigation of Access and Divestiture Related Tariffs, 97 F.C.C. 2d 1082, 1176-77); Bell Atlantic Non-Cost Reply Brief, at 2, 12-15 (citing Reciprocal Compensation Order, 14 FCC Rcd at 3695, 3705-6, ¶¶ 9, 26).

⁴⁹     Bell Atlantic Complaint at 3-4, 10 (citing Reciprocal Compensation Order, 14 FCC Rcd at 3705-6, 3707-10, ¶¶ 26, 28-36); Bell Atlantic Non-Cost Brief, at 2, 9-13 (citing Reciprocal Compensation Order, 14 FCC Rcd at 3704-6, ¶¶ 25-27); Bell Atlantic Non-Cost Reply Brief, at 1-2, 3-7 (citing Reciprocal Compensation Order, 14 FCC Rcd at 3705-6, 3707, ¶¶ 26, 28).

⁵⁰     Bell Atlantic Complaint at 4, 10-13; Bell Atlantic Non-Cost Brief at 1-2, 3-4, 14; Bell Atlantic Non-Cost Reply Brief, at 2, 10-12 (citing United Artists Payphone Corp. v. New York Telephone Company, Memorandum Opinion and Order, File Nos. E-90-181, E-90-182, 8 FCC Rcd 5563 (1993); MGC Communications Inc. v. AT&T Corp., DA 99-1395 (rel. July 16, 1999)).

⁵¹     Bell Atlantic Complaint at 13, 15-16; Bell Atlantic's Brief on Cost Issues, at 1-2, 8; Bell Atlantic Reply Brief on Cost Issues, at 2, 5.

⁵²     Given our determination that Global NAPs' tariff violates the Reciprocal Compensation Order, we need not, and do not, reach the other issues raised in Bell Atlantic's complaint.

⁵³     See ¶ 9, supra; see also US West Communications v. MFS Intelenet, Inc., ___F.3d ___, 1999 WL 799082 (9th Cir. (Wash.)) ("The FCC has held parties are bound by interconnection agreements that include ISP-Bound Traffic in their reciprocal compensation provisions and are approved by a state commission."); Illinois Bell Telephone Company v. WorldCom Technologies, Inc., 179 F.3d 566, 574 (7th Cir. 1999) (stating that "[t]he Commission could not have made clearer [in the Reciprocal Compensation Order] its willingness -- at least until a federal rule is promulgated -- to let state commissions make the call [regarding the appropriate compensation mechanism for ISP-bound traffic.]").

⁵⁴     See ¶ 12, supra.

⁵⁵     See, e.g., MCI WorldCom Technologies, Inc. Order, D.T.E., 97-116-D, Motions for Reconsideration filed by Global NAPs, Sprint Communications, and RCN Telecom (July 13, 1999).

⁵⁶     See Complaint of Global NAPs, Inc. v. Bell Atlantic, Commonwealth of Massachusetts Department of Telecommunications and Energy, D.T.E. 99-39 (filed April 16, 1999), attached to Letter from Karlyn D. Stanley to Magalie Roman Salas, dated August 10, 1999, File No. E-99-22; see also Initial Brief of Global NAPs on Non-Cost Issues, at 41 n.32.

⁵⁷     Initial Brief of Global NAPs on Non-Cost Issues, at 41; Reply Brief of Global NAPs, at 20. Global NAPs characterizes this possibility as remote, at best, but we must accept at face value the Massachusetts DTE's repeated assertions that it still could construe the existing interconnection agreement as requiring inter-carrier compensation for ISP-bound traffic.

⁵⁸     Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, CC Docket Nos. 96-98, 95-185, First Report and Order, 11 FCC Rcd 15499, 15520, ¶ 41 (1996) (Local Competition Order), aff'd in part and vacated in part sub nom. Competitive Telecommunications Ass'n v. FCC, 117 F.3d 1068 (8th Cir. 1997) (CompTel), aff'd in part and vacated in part sub nom. Iowa Utils. Bd. v. FCC, 120 F.3d 753 (8th Cir. 1997) (Iowa Utils. Bd), aff'd in part and rev'd in part sub nom. AT&T Cos. v. Iowa Utils. Bd., 119 S. Ct. 721 (1999); Order on Reconsideration, 11 FCC Rcd 13042 (1996); Second Order on Reconsideration, 11 FCC Rcd 19738 (1996); Third Order on Reconsideration and Further Notice of Proposed Rulemaking, 12 FCC Rcd 12460 (1997); further recon. pending; see also Reciprocal Compensation Order, 14 FCC Rcd at 3704-5, ¶ 25.

⁵⁹     Reciprocal Compensation Order, 14 FCC Rcd at 3704-5, ¶ 25.

⁶⁰     In conducting arbitration procedures under section 252 of the Act, however, state commissions still must comply with our rules and our interpretation of the Act. Thus, when we adopt federal rules for inter-carrier compensation for ISP-bound traffic, state commissions conducting arbitrations must abide by these rules.

⁶¹     47 U.S.C. §§ 252(b)(1), 252(b)(4)(C), and 252(c)(1).

⁶²     47 U.S.C. § 251(d)(3).

⁶³     See Joint Brief of Intervenors in Support of Respondents in Opposition to the LEC Petitioners, Bell Atlantic Telephone Companies, Inc. et al. v. FCC, Nos. 99-1094, et al. (filed August 5, 1999).

⁶⁴     See Initial Brief of Global NAPs on Non-Cost Issues, at 4, 34-35; Reply Brief of Global NAPs, at 18-19; see also Brief for Federal Communications Commission, Bell Atlantic Telephone Companies, et al v. FCC, Nos. 99-1094 et al, at 47 (filed July 22, 1999). The portion of the Commission's D.C. Circuit brief to which Global NAPs refers states:

The ILECs assert that the Commission has no authority to "authorize" state commissions to impose reciprocal compensation obligations to calls beyond the scope of Section 251(b)(5).... In this case, the Commission is not affirmatively authorizing the state commissions to impose reciprocal compensation obligations; the Commission is rendering an interpretation that imposing such obligations is not inconsistent with the Act or with existing federal rules, and therefore is not prohibited. The Commission issued a declaratory ruling to remove uncertainty and to settle a controversy, rather than an order authorizing, mandating, or prohibiting any particular action. Thus, the issue is not whether the Commission improperly authorized the state commissions to take a particular action, but whether the Commission correctly determined that state commissions have authority to take that action in the absence of contrary federal law. Id.

⁶⁵     Specialized Common Carrier Service Regulations and Rates of Global NAPs, Inc., Tariff F.C.C. No. 1, at 82, Section 7A.1 (effective April 15, 1999).

⁶⁶     See ¶ 4, supra.

⁶⁷     47 U.S.C. § 201(b). Section 61.2 of the Commission's rules states that "[i]n order to remove all doubt as to their proper application, all tariff publications must contain clea[r] and explicit explanatory statements regarding the rates and regulations." 47 C.F.R. § 61.2.

⁶⁸     Specialized Common Carrier Service Regulations and Rates of Global NAPs, Inc., Tariff F.C.C. No. 1, at 82, Section 7A.1.

⁶⁹     47 C.F.R. § 61.74(a).

⁷⁰     47 C.F.R. §§ 61.151, 61.152, 61.153.

⁷¹     47 C.F.R. § 61.74(a).

⁷²     Amendment of Parts 1 and 61 of the Commission's Rules, Report and Order, 98 F.C.C.2d 855, 876 at ¶80 (1984).

⁷³     See Revisions to Southwestern Bell Telephone Company Tariff F.C.C. No. 68, Order, 4 FCC Rcd 2624 (1988); AT&T Communications Revisions to Tariff F.C.C. No. 15, Competitive Pricing Plan No. 12, DA 93-383, Order, 1993 WL 756821 (Com. Car. Bur. rel. April 2, 1993); Lincoln Telephone and Telegraph, Memorandum Opinion and Order, 78 F.C.C. 2d 1219 (1998).