# Before the

# Federal Communications Commission

# Washington, D.C. 20554

In the Matter of )

)

Global NAPs South, Inc. Petition for ) CC Docket No. 99-198

Preemption of Jurisdiction of the Virginia )

State Corporation Commission Regarding )

Interconnection Dispute with )

Bell Atlantic-Virginia, Inc. )

# MEMORANDUM OPINION AND ORDER

**Adopted: August 5, 1999 Released: August 5, 1999**

By the Deputy Chief, Common Carrier Bureau:

# I. INTRODUCTION

I.  1\. This *Memorandum Opinion and Order* addresses the petition of
    Global NAPs South, Inc. (GNAPs) for preemption of jurisdiction of
    the Virginia State Corporation Commission (Virginia Commission) with
    respect to an arbitration proceeding involving GNAPs and Bell
    Atlantic-Virginia, Inc. (Bell Atlantic).[^1] The Commission placed
    GNAPs' preemption petition on public notice on May 24, 1999.[^2]
    Ameritech, Bell Atlantic, Connect!, Cox Communications, Inc., and
    the Virginia Commission filed comments, and GNAPs filed a reply.

2\. GNAPs seeks preemption of the Virginia Commission pursuant to
section 252(e)(5) of the Communications Act of 1934, as amended.[^3]
Section 252(e)(5) authorizes the Commission to preempt a state
commission in any proceeding or matter in which the state commission
"fails to act to carry out its responsibility" under section 252.[^4]
Section 252 sets out the procedures by which telecommunications carriers
may request and obtain interconnection, resale services or unbundled
network elements from an incumbent local exchange carrier (LEC).[^5] For
the reasons discussed below, we find that the Virginia Commission has
not "failed to act" within the meaning of our rules implementing section
252(e)(5).[^6] We therefore deny GNAPs' petition and do not preempt the
Virginia Commission.

# II. BACKGROUND

II. 

###### A. Statutory Provisions

III. 3\. Congress adopted sections 251 and 252 of the 1996 Act to foster
     local exchange competition by imposing certain requirements on
     incumbent LECs that are designed to facilitate the entry of
     competing telecommunications carriers. Section 251 describes the
     various requirements designed to promote market entry, including
     incumbent LECs' obligations to provide requesting
     telecommunications carriers interconnection, unbundled network
     elements, and services for resale.[^7] Section 252 sets forth the
     procedures by which telecommunications carriers may request and
     obtain interconnection, unbundled network elements, and services
     for resale from an incumbent LEC pursuant to section 251.[^8]
     Specifically, sections 252(a) and (b) establish a scheme whereby
     telecommunications carriers may obtain interconnection with the
     incumbent according to agreements fashioned through (1) voluntary
     negotiations between the carriers, (2) mediation by state
     commissions, or (3) arbitration by state commissions.[^9] These
     interconnection agreements must then be submitted for approval to
     the appropriate state commission.[^10]

4\. In addition, section 252(i) provides another means for establishing
interconnection. Pursuant to section 252(i), local exchange carriers
must "make available any interconnection, service, or network element
provided under an agreement approved under this section to which it is a
party to any other requesting telecommunications carrier upon the same
terms and conditions as those provided in the agreement."[^11]
Negotiation is not required to implement a section 252(i) opt-in
arrangement; indeed, neither party may alter the terms of the underlying
agreement. Although there is no arbitration or negotiation as identified
in section 252(e)(1) for the state to approve,[^12] states may adopt
"procedures for making agreements available to requesting carriers on an
expedited basis."[^13] As the Commission observed three years ago, a
party seeking interconnection pursuant to section 252(i) "need not make
such requests pursuant to the procedures for initial section 251
requests, but shall be permitted to obtain its statutory rights on an
expedited basis."[^14] Otherwise, the "non-discriminatory,
pro-competition purpose of section 252(i) would be defeated were
requesting carriers required to undergo a lengthy negotiation and
approval process pursuant to section 251."[^15]

5\. Section 252(e)(5) directs the Commission to assume responsibility
for any proceeding in which the state commission "fails to act to carry
out its responsibility" under section 252:

(5) COMMISSION TO ACT IF STATE WILL NOT ACT.---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 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.[^16]

####### Commission's Rules

6\. The *Local Competition Order* adopted "interim procedures" to
exercise preemption authority under section 252(e)(5) in order to
"provide for an efficient and fair transition from state jurisdiction
should \[the Commission\] have to assume the responsibility of the state
commission . . . ."[^17] The *Local Competition Order* concluded that
the Commission would not take an "expansive view" of what constitutes a
state commission's "failure to act" for purposes of section
252(e)(5).[^18] Rather, the *Local Competition Order* interpreted
"failure to act" to mean a state's failure to complete its duties in a
timely manner. The *Local Competition Order* limited the instances under
which Commission preemption pursuant to section 252(e)(5) is appropriate
to "when a state commission fails to respond, within a reasonable time,
to a request for mediation or arbitration, or fails to complete
arbitration within the time limits of section 252(b)(4)(c)."[^19] Under
the Commission's rules, "\[t\]he party seeking preemption \[pursuant to
section 252(e)(5)\] must prove that the state \[commission\] has failed
to act to carry out its responsibilities under section 252 of the
Act."[^20]

###### Procedural History

7\. On July 2, 1998, GNAPs asked Bell Atlantic to commence negotiations
for interconnection.[^21] The parties subsequently attempted to
negotiate the terms of an interconnection agreement.[^22] In August
1998, GNAPs concluded that it could meet its interconnection needs by
opting-into a 1996 agreement between Bell Atlantic and MFS Intelenet
(MFS) pursuant to section 252(i).[^23] As a result, GNAPs advised Bell
Atlantic that GNAPs wanted to interconnect with Bell Atlantic on the
same terms as contained in Bell Atlantic's 1996 agreement with MFS (1996
MFS Agreement).[^24] According to GNAPs, Bell Atlantic refused to honor
GNAPs' right to opt-into the 1996 MFS Agreement without
modifications.[^25]

8\. On November 16, 1998, GNAPs filed a petition for arbitration with
the Virginia Commission,[^26] pursuant to section 252(b) of the
Act.[^27] On November 25, 1998, GNAPs filed a motion requesting
expedited treatment of its petition and further requesting that Bell
Atlantic provide GNAPs interconnection on an interim basis.[^28] On
December 11, 1998, Bell Atlantic filed its response to the GNAPs
arbitration petition and motion.[^29]

9\. In a January 29, 1999 order, the Virginia Commission determined that
there was no need to hold an evidentiary hearing in the GNAPs/Bell
Atlantic arbitration proceeding, having found that the issues raised by
the parties presented only legal questions.[^30] In the same order,
however, the Virginia Commission encouraged the parties to supplement
their pleadings in order to further clarify their positions on the
issues, and to address how the Supreme Court's decision in *AT&T Corp.
v. Iowa Utilities Board* might impact the arbitration of unresolved
issues between GNAPs and Bell Atlantic.[^31]

10\. On February 10, 1999, Bell Atlantic filed a supplemental brief in
response to the January 29, 1999 order. [^32] According to the Virginia
Commission's April 2, 1999 final order, Bell Atlantic argued in its
supplemental brief that the Supreme Court's reinstatement of section
51.809 of the Commission's rules did not entitle GNAPs to adopt Bell
Atlantic's 1996 MFS Agreement. [^33] On February 10, 1999, GNAPs also
filed a supplemental brief in response to the January 29, 1999
order.[^34] According to the Virginia Commission's April 2, 1999 final
order, GNAPs argued in its supplemental brief that it was entitled to
reciprocal compensation for terminating Internet Service Provider (ISP)
traffic; that it should be able to opt-into the 1996 MFS Agreement for a
full three-year term; and that section 51.809 of the Commission's rules
did not prevent GNAPs from adopting Bell Atlantic's 1996 MFS
Agreement.[^35] GNAPs further asserted that Bell Atlantic acted in bad
faith by not permitting it to opt-into the 1996 MFS Agreement in August
1998.[^36]

11\. On February 26, 1999, the Commission released its *ISP Compensation
Ruling and NPRM*.[^37] On March 11, 1999, the Virginia Commission
released an order scheduling oral argument so that the parties could
address what effect, if any, the Commission's *ISP Compensation Ruling
and NPRM* and the Supreme Court's decision might have on the resolution
of the GNAPs/Bell Atlantic arbitration proceeding.[^38] Oral argument
was held on March 25, 1999.[^39]

12\. On April 2, 1999, the Virginia Commission issued its final order in
the GNAPs/Bell Atlantic arbitration proceeding. In its final order, the
Virginia Commission acknowledged that the 1996 MFS Agreement would
terminate on July 1, 1999 and that any carrier opting-into this
agreement would necessarily find themselves bound by this termination
date, unless otherwise negotiated.[^40] The Virginia Commission noted
that in light of the very limited time remaining under the 1996 MFS
Agreement, there would likely be only thirty days, at most, from the
time an adopted GNAPs/Bell Atlantic agreement based on the 1996 MFS
Agreement would be approved until Bell Atlantic could terminate the
agreement pursuant to the contract terms.[^41] Thus, citing both the
maxim "equity will not do a vain or useless thing," and the "reasonable
time" language in section 51.809(c) of the Commission's rules, the
Virginia Commission denied GNAPs' petition to adopt the 1996 MFS
Agreement and dismissed the GNAPs/Bell Atlantic arbitration
proceeding.[^42]

13\. On April 21, 1999, GNAPs filed a petition for reconsideration of
the April 2, 1999 final order with the Virginia Commission.[^43] Under
the Virginia Commission's rules, an order becomes final within 21 days
after entry, unless modified or vacated in a response to a petition for
reconsideration or on the Virginia Commission's own motion.[^44] The
Virginia Commission elected not to act in response to GNAPs' petition
for reconsideration and therefore allowed its April 2, 1999 order to
become final.[^45]

**D. GNAPs' Petition for Preemption of Jurisdiction**

14\. GNAPs requests in its petition that the Commission "preempt the
jurisdiction" of the arbitration proceeding it requested before the
Virginia Commission, pursuant to section 252(e)(5).[^46] GNAPs alleges
that the April 2, 1999 final order is a "plain failure of the \[Virginia
Commission\] to fulfill its responsibilities under the Act."[^47] GNAPs
does not allege, however, that the Virginia Commission "failed to act"
upon its arbitration request in a timely manner, nor that the April 2,
1999 final order was untimely rendered.[^48]

15\. GNAPs alleges that, without identifying any provision of the 1996
MFS Agreement that was technically infeasible or impractical, or any
rate in that agreement that was based on outdated cost analyses, the
Virginia Commission found that the 1996 MFS Agreement was too old to be
opted-into and denied and dismissed GNAPs' arbitration petition.[^49]
GNAPs maintains that it does not know whether the Virginia Commission's
April 2, 1999 final order is the product of confusion regarding whether
or not its efforts to opt-into the 1996 MFS Agreement were subject to
arbitration; confusion regarding the jurisdictional status of ISP-bound
calls; uncertainty following the Supreme Court's decision in *AT&T Corp.
v. Iowa Utilities Board*; or some other misunderstanding.[^50] GNAPs
argues, however, that the effect of the April 2, 1999 final order is to
put them "back at ground zero" and leave them without an interconnection
agreement nearly a year after their negotiations with Bell Atlantic
began.[^51] In light of this outcome, GNAPs alleges that the Virginia
Commission has "failed to act to carry out its responsibilities under
section 252 of the Act."[^52]

**III. DISCUSSION**

16\. Section 252(e)(5) directs the Commission to preempt the
jurisdiction of a state commission in any proceeding or matter in which
a state commission "fails to act to carry out its responsibility under
\[section 252\]."[^53] Here, the Virginia Commission has not "failed to
act" under Commission rules implementing section 252(e)(5) solely
because it has issued a decision denying GNAPs the terms and conditions
on which it sought to interconnect with Bell Atlantic.[^54] As noted
above, in the *Local Competition Order*, the Commission concluded that
it would not take an "expansive view" of what constitutes a state
commission's failure to act, noting its belief that "states \[would\]
meet their responsibilities and obligations under the 1996 Act."[^55]
Therefore, the Commission determined that it would preempt a state
commission's jurisdiction for "failure to act" under section 252(e)(5)
only in those "instances where a state commission fails to respond,
within a reasonable time, to a request for mediation or arbitration, or
fails to complete arbitration within the time limits of section
252(b)(4)(C)."[^56] Thus, under the Commission's current rules, a state
commission does not "fail to act" when it responds to a request for
arbitration but subsequently dismisses or denies an arbitration within
the nine month time limit in section 252(b)(4)(C).

17\. Applying the Commission's rules in this instance, we find that the
Virginia Commission responded to GNAPs' request for arbitration by
quickly initiating proceedings. The Virginia Commission established a
series of pleading cycles and afforded the parties opportunities to
address the impact of the Supreme Court's decision in *AT&T Corp. v.
Iowa Utilities Board* and the Commission's *ISP Compensation Ruling and
NPRM*. In addition, an oral argument was held on March 25, 1999.

18\. Moreover, GNAPs does not claim that the Virginia Commission acted
outside of any statutory time frame.[^57] Although GNAPs contends that
the Commission "failed to act to carry out its responsibilities under
section 252 of the Act," we note that the Virginia Commission issued its
April 2, 1999 final order within nine months after Bell Atlantic
received GNAPs' request for interconnection, consistent with the
requirements of section 252(b)(4)(C). According to the Virginia
Commission, GNAPs presented no evidence regarding terms for an
interconnection agreement with Bell Atlantic in the event the Virginia
Commission determined it was not reasonable to require Bell Atlantic to
offer the soon to expire 1996 MFS Agreement to GNAPs.[^58] Because
section 51.801 of the Commission's rules does not focus on the validity
of state commission decisions, we do not see a basis for examining the
underlying reasoning of the Virginia Commission. While we recognize the
frustration GNAPs has experienced in its efforts to obtain
interconnection with Bell Atlantic, we cannot conclude that the Virginia
Commission has "failed to act" under the Commission's rules implementing
section 252(e)(5).

19\. Commission precedent supports our conclusion that there is no basis
for preemption here. In the *Low Tech Order*, the Commission denied
three preemption petitions filed by Low Tech Designs, Inc. (Low Tech),
pursuant to section 252(e)(5).[^59] The three state commission
arbitration proceedings at issue dismissed or denied Low Tech's
arbitration petition on the basis that Low Tech was not yet a certified
carrier in the relevant state.[^60] The Commission held that a state
commission has not "failed to act" when it issues a decision that
dismisses or denies an arbitration petition on grounds that prevent it
from resolving the substantive issues in the arbitration petition.[^61]
There, as here, the petitioner essentially argued that there was a
failure to act because the state commission had erroneously applied the
law and our rules in rendering its decision. The Commission concluded
that there was no basis to examine the substantive validity of the state
commission's decision under section 51.801 of its rules. Accordingly, we
do not preempt the Virginia Commission's jurisdiction and do not assume
responsibility for this arbitration.

20\. Finally, we note that the Commission's decision not to preempt the
jurisdiction of the Virginia Commission does not leave GNAPs without a
remedy. Pursuant to section 252(e)(6), a party aggrieved by a state
commission arbitration determination under section 252 has the right to
bring an action in federal district court.[^62] Thus, GNAPs may still
challenge the Virginia Commission determination in federal district
court pursuant to section 252(e)(6).

21\. In sum, we conclude that GNAPs has not met its burden of
demonstrating that the Virginia Commission has "failed to act" within
the meaning of the Commission's rules implementing section 252(e)(5).
Rather, the Virginia Commission has met the requirements of the statute
and our rules by responding to GNAPs' request for arbitration and
rendering a final decision in the arbitration within nine months after
Bell Atlantic received GNAPs' request for interconnection. We therefore
do not preempt the jurisdiction of the Virginia Commission pursuant to
the authority granted the Commission in section 252(e)(5).

**IV. CONCLUSION**

22\. For the foregoing reasons, we deny GNAPs' petition for Commission
preemption of jurisdiction of GNAPs' arbitration proceeding with Bell
Atlantic in Virginia.

######## VI. ORDERING CLAUSES

23\. Accordingly, IT IS ORDERED that, pursuant to section 252 of the
Communications Act of 1934, as amended, and section 51.801(b) of the
Commission's rules, 47 U.S.C. § 252 and 47 C.F.R. § 51.801(b), the
petition for Commission preemption of jurisdiction filed by Global NAPs
South, Inc. on May 19, 1999 is DENIED.

> FEDERAL COMMUNICATIONS COMMISSION
>
> Robert C. Atkinson
>
> Deputy Chief
>
> Common Carrier Bureau

[^1]: Global NAPs South, Inc. Petition for Preemption of Jurisdiction of
    the Virginia State Corporation Commission, CC Docket No. 99-198,
    filed with the Commission on May 19, 1999 (Virginia Petition).

[^2]: *Pleading Cycle Established for Comments on Global NAPs South,
    Inc. Petition for Preemption of Jurisdiction of the Virginia State
    Corporation Commission Regarding Interconnection Dispute with Bell
    Atlantic -Virginia*, Public Notice, CC Docket No. 99-198, DA 99-984
    (rel. May 24, 1999) (Public Notice). The Public Notice established a
    deadline for comment of June 8, 1999, and a deadline for reply
    comments of June 17, 1999. On May 26, 1999, GNAPs requested that the
    Commission extend the comment and reply dates by one week because
    the Virginia Commission was not served with the Virginia Petition
    until May 26, 1999. On June 3, 1999, the Common Carrier Bureau
    released an order extending the deadline for comment to June 15,
    1999, and the deadline for reply comments to June 24, 1999. *In the
    Matter of Global NAPs South, Inc. Petition for Preemption of the
    Jurisdiction of the Virginia State Corporation Commission Regarding
    Interconnection Dispute with Bell Atlantic-Virginia*, Order, CC
    Docket No. 99-198, DA 99-1090 (rel. Jun. 3, 1999).

[^3]: Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56
    (1996 Act), *codified at* 47 U.S.C.

    §§ 151 *et seq.* Hereafter, all citations to the 1996 Act will be to
    the 1996 Act as it is codified in the United States Code. The 1996
    Act amended the Communications Act of 1934. We will refer to the
    Communications Act of 1934, as amended, as "the Communications Act"
    or "the Act."

[^4]: 47 U.S.C. § 252(e)(5).

[^5]: *See generally* 47 U.S.C. § 252.

[^6]: *Implementation of the Local Competition Provisions of the
    Telecommunications Act of 1996*, CC Docket No. 96-98, First Report
    and Order, 11 FCC Rcd 15499, 16122-16132 (1996) (*Local Competition
    Order*), *aff'd in part and vacated in part sub nom., Competitive
    Telecommunications Ass'n v. FCC*, 117 F.3d 1068 (8^th^ Cir. 1997)
    and *Iowa Utilities Bd. v. FCC*, 120 F.3d 753 (8^th^ Cir. 1997),
    *petition for cert. granted*, Nos. 97-829, 97-830, 97-831, 97-1097,
    97-1099, and 97-1141 (U.S. Jan. 26, 1998) (collectively *Iowa Utils.
    Bd. v. FCC*), *aff'd in part and remanded*, *AT&T Corp., et al. v.
    Iowa Utils. Bd. et al.*, 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, FCC
    97-295 (rel. Aug. 18, 1997), *further recons. pending*; *see also*
    47 C.F.R. §§ 51.801(b), 51.803(b).

[^7]: *See generally* 47 U.S.C. § 251(c). For purposes of this order,
    the interconnection, access to unbundled elements, services for
    resale and other items for which incumbent LECs have a duty to
    negotiate pursuant to section 251(c)(1) are sometimes referred to
    collectively as "interconnection."

[^8]: *See generally* 47 U.S.C. § 252.

[^9]: *See* 47 U.S.C. § 252(a), (b).

[^10]: 47 U.S.C. § 252(e)(1).

[^11]: 47 U.S.C. § 251(i).

[^12]: 47 U.S.C. § 252(e)(1) ("Any interconnection agreement adopted by
    negotiation or arbitration shall be submitted to the State
    commission"); *see also Local Competition Order*, 11 FCC Rcd at
    16141, ¶ 1321 (indicating that carriers "seeking interconnection,
    network elements, or services pursuant to section 252(i) need not
    make such requests pursuant to the procedures for initial section
    252 requests").

[^13]: *Local Competition Order*, 11 FCC Rcd at 16141, ¶ 1321.

[^14]: *Id*. An expedited process for section 252(i) opt-ins would
    necessarily be substantially quicker than the time frame for
    negotiation, and approval, of a new interconnection agreement since
    the underlying agreement has already been subject to state review
    under section 252(e).

[^15]: *Id.*

[^16]: 47 U.S.C. § 252(e)(5).

[^17]: *Local Competition Order*, 11 FCC Rcd at 16127, ¶ 1283.

[^18]: *Id.* at 16128, ¶ 1285.

[^19]: *Id.* at 16128, ¶ 1285. *See also* 47 C.F.R. § 51.801(b); *In the
    Matter of Petition for Commission Assumption of Jurisdiction of Low
    Tech Designs, Inc.'s Petition for Arbitration with Ameritech
    Illinois Before the Illinois Commerce Commission, with BellSouth
    Before the Georgia Public Service Commission, and with GTE South
    Before the Public Service Commission of South Carolina*, Order, 13
    FCC Rcd 1755, 1758-1759, ¶ 5 (1997) (*Low Tech Order*), *recon.
    denied,* CC Docket Nos. 97-163, 97-164, 97-165, FCC 99-71 (rel. Apr.
    13, 1999). The Commission has indicated that there is no "failure to
    act" when an interconnection agreement is "deemed approved" under
    section 252(e)(4) as a result of state commission inaction. *Local
    Competition Order*, 11 FCC Rcd at 16128, ¶ 1285; 47 U.S.C. §
    252(e)(4).

[^20]: 47 C.F.R. § 51.803(b); *see also Local Competition Order*, 11 FCC
    Rcd at 16128, ¶ 1285.

[^21]: Virginia Petition at 1.

[^22]: *Id.*

[^23]: *Id*. Section 252(i) provides that: "\[a\] local exchange carrier
    shall make available any interconnection service, or network element
    provided under an agreement approved under \[section 252\] to which
    it is a party to any other requesting telecommunications carrier
    upon the same terms and conditions as those provided in the
    agreement." 47 U.S.C. § 252(i). At the time GNAPs first sought to
    interconnect with Bell Atlantic, carriers were subject to the Eighth
    Circuit's interpretation of section 252(i). As a result, requesting
    carriers such as GNAPs were required to opt-into an existing
    contract as a whole rather than "pick and choose" different elements
    from different existing contracts. *Iowa Utils. Bd.*, 120 F.3d at
    800-801. The Supreme Court since overturned the Eighth Circuit's
    interpretation of section 252(i) and reinstated the Commission's
    "pick and choose" approach. *AT&T Corp.*, 119 S.Ct. at 738; *see
    generally* 47 C.F.R. § 51.809.

[^24]: Virginia Petition at 1.

[^25]: *Id.* at 2. If a local exchange carrier fails to recognize the
    rights of an opt-in carrier, that carrier may seek expedited relief
    from this Commission pursuant to section 208. *Local Competition
    Order*, 11 FCC Rcd at 16141,

    ¶ 1321; 47 U.S.C. § 208. In this case, GNAPs decided to pursue
    arbitration pursuant to section 252(b) and during the arbitration
    proceeding that followed, sought to enter into an interconnection
    agreement with Bell Atlantic identical to the 1996 MFS Agreement.
    Bell Atlantic asserts in this proceeding that GNAPs has no right to
    opt-into provisions relating to reciprocal compensation, arguing
    that section 252(i) only permits carriers to opt-into provisions of
    interconnection agreements that are based on the requirements of
    section 251. Bell Atlantic Comments at 4. We reject Bell Atlantic's
    argument, as our rules establish only two limited exceptions to the
    right of carriers to opt-into an interconnection agreement. *See* 47
    C.F.R. § 51.809(b).

[^26]: *Petition of Global NAPs South, Inc. for Arbitration of
    Unresolved Issues from Interconnection Negotiations with Bell
    Atlantic-Virginia, Inc. Pursuant to Section 252 of the
    Telecommunications Act of 1996*, Final Order, No. PUC980173
    (Virginia Commission Apr. 2, 1999) at 1 (Virginia Final Order)
    (filed as an attachment to Virginia Petition).

[^27]: The procedural history of this proceeding is complex because it
    involves both opt-in and arbitration attempts by GNAPs. GNAPs should
    have been able to exercise its opt-in right under section 252(i) on
    an expedited basis. *Local Competition Order*, 11 FCC Rcd at 16141,
    ¶ 1321. Thus, for example, a carrier should be able to notify the
    local exchange carrier that it is exercising this right by
    submitting a letter to the local exchange carrier identifying the
    agreement (or the portions of an agreement) it will be using and to
    whom invoices, notices regarding the agreement, and other
    communication should be sent. In such circumstances, the carrier
    opting-into an existing agreement takes all the terms and conditions
    of that agreement (or the portions of that agreement), including its
    original expiration date.

[^28]: Virginia Final Order at 2.

[^29]: *Id.* at 1.

[^30]: *Id.* at 2.

[^31]: *Id. See generally AT&T Corp.*, 119 S.Ct. at 738.

[^32]: Virginia Final Order at 2.

[^33]: *Id.* at 2-3. *See also* 119 S.Ct. at 738. Section 51.809 of the
    Commission's rules describes the availability of provisions of
    existing interconnection agreements to other telecommunications
    carriers under section 252(i) of the Act. 47 C.F.R. § 51.809.

[^34]: Virginia Final Order at 2.

[^35]: *Id.* at 3-4.

[^36]: *Id.* at 3.

[^37]: *Implementation of the Local Competition Provisions in the
    Telecommunications Act of 1996 Inter-Carrier Compensation for
    ISP-Bound Traffic*, Declaratory Ruling in CC Docket No. 96-98 and
    Notice of Proposed Rulemaking in CC Docket 99-68 (rel. Feb. 26,
    1999) (*ISP Compensation Ruling and NPRM*).

[^38]: Virginia Final Order at 4-5.

[^39]: *Id.* at 5.

[^40]: *Id.*

[^41]: *Id.* at 5-6.

[^42]: *Id.* Section 51.809(c) of the Commission's rules provides that
    "\[I\]ndividual interconnection, service, or network element
    arrangements shall remain available for use by telecommunications
    carriers . . . for a reasonable period of time after the approved
    agreement is available for public inspection under section 252(f) of
    the Act." 47 C.F.R. § 51.809(c).

[^43]: Virginia Petition at 6.

[^44]: *Id.*

[^45]: *Id.*

[^46]: *Id.* at 1.

[^47]: *Id.* at 6.

[^48]: State commissions are required to respond to a request for
    arbitration within a "reasonable time," *Local Competition Order*,
    11 FCC Rcd 16128, ¶ 1285; 47 C.F.R. § 51.801(b), and to conclude an
    arbitration no later than nine months after the date on which the
    incumbent LEC receives a request for negotiation under section 252.

    47 U.S.C. § 252(b)(4)(C).

[^49]: Virginia Petition at 5.

[^50]: *Id.* at 6.

[^51]: *Id.*

[^52]: *Id.* at 7. *See also* 47 C.F.R. § 51.803(b).

[^53]: 47 U.S.C. § 252(e)(5).

[^54]: *See* Virginia Commission Comments at 1.

[^55]: *Local Competition Order*, 11 FCC Rcd at 16128, ¶ 1285.

[^56]: 47 C.F.R. § 51.801(b). *See also* *Local Competition Order*, 11
    FCC Rcd at 16128, ¶ 1285; Bell Atlantic Comments at 3.

[^57]: *See* Bell Atlantic Comments at 3.

[^58]: Virginia Commission Comments at 1-3.

[^59]: *Low Tech Order*, 13 FCC Rcd at 1759-1768.

[^60]: *Id.*

[^61]: Low Tech argued that a state commission has not acted until it
    has ruled on the merits of the issues raised in the arbitration
    petition. *Id.* at 1733-1774, ¶ 33 n.122. The Commission rejected
    Low Tech's argument and held that under its current rules, a state
    commission does not "fail to act" when it dismisses or denies an
    arbitration petition on the ground that it is procedurally
    defective, the petitioner slacks standing to arbitrate, or the state
    commission lacks jurisdiction over the proceeding. *Id.* at 1774, ¶
    33.

[^62]: 47 U.S.C. § 252(e)(6); *Local Competition Order*, 11 FCC Rcd
    15563, ¶ 124; Bell Atlantic Comments at 2.