Before the

**Federal Communications Commission**

**Washington, D.C. 20554**

)

In the Matter of )

)

Starpower Communications, LLC ) CC Docket No. 00-52

Petition for Preemption of Jurisdiction of the )

Virginia State Corporation Commission )

Pursuant to Section 252(e)(5) of the )

Telecommunications Act of 1996 )

MEMORANDUM OPINION AND ORDER

Adopted: June 14, 2000 Released: June 14, 2000

By the Commission: Commissioner Furchtgott-Roth dissenting and issuing a
statement; Commissioner Powell issuing a statement

#  {#section .unnumbered}

# I. INTRODUCTION AND BACKGROUND {#i.-introduction-and-background .unnumbered}

### 1. This *Memorandum Opinion and Order* addresses the petition of Starpower Communications, LLC (Starpower) for preemption of the jurisdiction of the Virginia State Corporation Commission (Virginia Commission) with respect to a dispute concerning the interpretation and enforcement of its interconnection agreements with Bell Atlantic-Virginia, Inc., (Bell Atlantic) and GTE South, Incorporated (GTE).[^1] Specifically, Starpower seeks preemption of the jurisdiction of the Virginia Commission pursuant to section 252(e)(5) of the Communications Act of 1934, as amended (the Act).[^2] For the reasons set forth below, we grant Starpower's petition.  {#this-memorandum-opinion-and-order-addresses-the-petition-of-starpower-communications-llc-starpower-for-preemption-of-the-jurisdiction-of-the-virginia-state-corporation-commission-virginia-commission-with-respect-to-a-dispute-concerning-the-interpretation-and-enforcement-of-its-interconnection-agreements-with-bell-atlantic-virginia-inc.-bell-atlantic-and-gte-south-incorporated-gte.-specifically-starpower-seeks-preemption-of-the-jurisdiction-of-the-virginia-commission-pursuant-to-section-252e5-of-the-communications-act-of-1934-as-amended-the-act.-for-the-reasons-set-forth-below-we-grant-starpowers-petition. .unnumbered}

### 2. Section 252(e)(5) requires the Commission to preempt the jurisdiction of a state commission in any proceeding or matter in which the state commission "fails to act to carry out its responsibility" under section 252.[^3] Section 252 of the Act sets forth the procedures by which telecommunications carriers may request and obtain interconnection, services, or unbundled network elements from an incumbent local exchange carrier (LEC).[^4]  {#section-252e5-requires-the-commission-to-preempt-the-jurisdiction-of-a-state-commission-in-any-proceeding-or-matter-in-which-the-state-commission-fails-to-act-to-carry-out-its-responsibility-under-section-252.-section-252-of-the-act-sets-forth-the-procedures-by-which-telecommunications-carriers-may-request-and-obtain-interconnection-services-or-unbundled-network-elements-from-an-incumbent-local-exchange-carrier-lec. .unnumbered}

3\. Starpower filed a petition with the Virginia Commission on February
3, 1999, seeking a declaratory ruling directing GTE to pay reciprocal
compensation to Starpower for delivering GTE's traffic to Internet
Service Providers (ISPs) served by Starpower.[^5] On September 15, 1999,
Starpower filed a similar petition with the Virginia Commission against
Bell Atlantic, again seeking payment of reciprocal compensation for
traffic bound to ISPs. [^6]

4.  On January 24, 2000, the Virginia Commission issued a final order
    declining jurisdiction over Starpower's petition with respect to GTE
    by stating, "we find we should take no action."[^7] Similarly, in
    response to Starpower's petition against Bell Atlantic, the Virginia
    Commission issued an order dismissing the complaint and adopting, in
    its entirety, the reasoning set forth in the *Starpower/GTE
    Decision*.[^8] In both cases, the Virginia Commission encouraged the
    parties to seek relief from this Commission.[^9] Starpower filed the
    present petition in March 2000, requesting that the Commission
    preempt the jurisdiction of the Virginia Commission over the
    Starpower/GTE and Starpower/Bell Atlantic contract disputes.

# DISCUSSION

### We conclude that the unique circumstances presented by Starpower's petition require us to assume the jurisdiction of the Virginia Commission. 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 \[section 252\]."[^10] We recognize that the proceeding over which Starpower urges us to assert federal jurisdiction is not one encompassed within the Commission's existing rules under section 252(e)(5). Indeed, the Commission's existing rules state that it will preempt a state commission's jurisdiction for a "failure to act" under section 252(e)(5) 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)."[^11] This rule, promulgated in the *First Report and Order*, addresses only the Commission's 252(e)(5) responsibilities in the context of a state's "failure to act" with respect to its mediation and arbitration obligations pursuant to Section 252. The rule does not consider the Commission's Section 252 responsibilities in the context of a state's "failure to act" with respect to its other Section 252 obligations.[^12] In adopting those rules, however, the Commission did not consider whether a state commission could "fail to act" in the context of a subsequent proceeding to interpret or enforce an existing interconnection agreement. In this proceeding, we apply Section 252(e)(5) for the first time to matters outside the scope of mediation and arbitration. 

### In applying Section 252(e)(5), we must first determine whether a dispute arising from interconnection agreements and seeking interpretation and enforcement of those agreements is within the states' "responsibility" under section 252. We conclude that it is. In reaching this conclusion, we find federal court precedent to be instructive. Specifically, at least two federal courts of appeal have held that inherent in state commissions' express authority to mediate, arbitrate, and approve interconnection agreements under section 252 is the authority to interpret and enforce previously approved agreements.[^13] These court opinions implicitly recognize that, due to its role in the approval process, a state commission is well-suited to address disputes arising from interconnection agreements. Thus, we conclude that a state commission's failure to "act to carry out its responsibility" under section 252 can in some circumstances include the failure to interpret and enforce existing interconnection agreements.[^14]

### We must next consider whether the Virginia Commission has "failed to act" within the meaning of section 252(e)(5). In this case, the Virginia Commission expressly declined to resolve the petitions before it and interpret and enforce Starpower's interconnection agreements with GTE and Bell Atlantic. Specifically, the Virginia Commission stated in the Starpower/GTE decision, "we believe the only practical action is for this Commission to decline jurisdiction and allow the parties to present their cases to the FCC."[^15] We first note that we are sympathetic to the concerns of the Virginia Commission with regard to the status of the law governing inter-carrier compensation for ISP-bound traffic. Because the decisions explicitly declined to take any action with respect to Starpower's petitions, however, we are compelled to conclude that the Virginia Commission "failed to act to carry out its responsibility" under section 252. Accordingly, the Act requires us in these unique circumstances to assume the jurisdiction of the Virginia Commission and resolve the outstanding interconnection disputes.[^16] 

### We reject the arguments of Bell Atlantic and GTE that the mere issuance of the Virginia Commission's final order in each proceeding was sufficient to fulfill its responsibility under section 252(e)(5).[^17] Rather, as we have found in other orders interpreting section 252(e)(5), we evaluate whether a state commission has fulfilled its responsibility under section 252 based on the particulars of each case. For example, we have found that a state commission has carried out "its responsibility \[under section 252\]" when it resolves the merits of a section 252 proceeding or dismisses such a proceeding on jurisdictional or procedural grounds.[^18] The Virginia Commission did not dismiss Starpower's petitions because of jurisdictional or procedural defect, but rather expressly declined to resolve the merits of the case. Furthermore, we disagree with Bell Atlantic and GTE that Starpower's filing of an appeal of the Virginia Commission's order in federal district court precludes a finding that the state commission has failed to act under section 252(e)(5).[^19] Rather, by seeking relief concurrently in Federal district court and this Commission, Starpower exercised its right to seek alternative remedies. 

### Starpower may now file with the Commission for resolution of the interconnection disputes that were the subject of the Virginia Commission proceedings addressed herein.[^20] Upon receiving the appropriate filings from Starpower, the Commission will proceed to resolve only the question that the Virginia Commission would have resolved had it chosen to act: whether the existing interconnection agreements between Starpower and GTE and Bell Atlantic require GTE and Bell Atlantic to pay compensation to Starpower for the delivery of ISP-bound traffic. In resolving that question, the Commission will apply, *inter alia*, the principles that the Commission suggested state commissions apply to such disputes in the *Inter-Carrier Compensation Declaratory Ruling*.[^21] In addition, to expedite resolution of this case, we strongly encourage the parties to contact the Market Disputes Resolution Division of the Enforcement Bureau before filing to discuss how the issue might best be handled. We also reiterate the finding in the *Local Competition Order* that the Commission retains exclusive jurisdiction over any proceeding or matter over which it assumes responsibility under section 252(e)(5).[^22] Similarly, any findings made by the Commission after it assumes responsibility over a proceeding and any judicial review of such findings shall be the exclusive remedies available to the parties.[^23]

### III. CONCLUSION {#iii.-conclusion .unnumbered}

10\. For the foregoing reasons, we grant Starpower's Petition for
Commission preemption of jurisdiction over its complaints against Bell
Atlantic and GTE and invite Starpower to file for resolution of its
disputes with Bell Atlantic and GTE under 47 C.F.R. § 1.720 *et seq.*

# IV. ORDERING CLAUSE {#iv.-ordering-clause .unnumbered}

11\. 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 Starpower
Communications, LLC on March 16, 2000, IS GRANTED.

FEDERAL COMMUNICATIONS COMMISSION

Magalie Roman Salas

> Secretary

# DISSENTING STATEMENT OF COMMISSIONER HAROLD FURCHTGOTT‑ROTH {#dissenting-statement-of-commissioner-harold-furchtgottroth .unnumbered}

*Re: Starpower Communications, LLC Petition for Preemption of
Jurisdiction of the Virginia State Corporation Commission Pursuant to
Section 252(e)(5) of the Telecommunications Act of 1996*, Memorandum
Opinion and Order, CC Docket No. 00-52.

I do not agree with the Commission's resolution of this matter, and I
respectfully dissent from its decision.

As an initial matter, it is not clear to me that the Virginia State
Corporation Commission failed to carry out its responsibilities within
the meaning of 47 U.S.C. § 252(e)(5). The state of affairs that prompted
the Virginia Commission to rule as it did no longer exists, and I think
the more prudent course would be for us formally to request the Virginia
Commission to reconsider this dispute in light of current circumstances.
Specifically, the Virginia Commission was concerned that, despite this
Commission's ruling that calls to Internet service providers were
jurisdictionally *inter*state, we had continued to require carriers to
account on an *intra*state basis for costs and revenues associated with
ISP-bound traffic. *See, e.g.,* *Starpower Communications v. GTE South,
Inc.* Final Order Case No. PUC 990023 at 3-4 (Va. Comm. Jan. 24, 2000)
(citing *Reciprocal Compensation Order*, 14 FCC Rcd 3689 (1999)).
Observing that the "potential misallocation of costs to the state
jurisdictions appears enormous," *id.* at 5, the Virginia Commission
concluded that "the only practical action is for this Commission to
decline jurisdiction and allow the parties to present their cases to the
FCC," *id.* at 6.

Since the Virginia Commission issued its ruling, the Court of Appeals
for the District of Columbia Circuit has vacated and remanded this
Commission's determination that ISP-bound calls are jurisdictionally
interstate. *See* *Bell Atlantic Telephone Companies v. FCC*, 206 F.3d 1
(D.C. Cir. 2000). The Court of Appeals' decision fundamentally changes
the circumstances that led the Virginia Commission to refuse to reach a
decision in this case. In light of this ruling, what "responsibility"
did the Virginia Commission fail to carry out? It simply declined to
implement a ruling by this Commission that has since been judicially
overturned. Even assuming that state commissions have a "responsibility"
to interpret and enforce the terms of interconnection agreements that
they have approved, it simply is impossible to say that the Virginia
Commission failed do that here. At the very least, we should formally
ask Virginia Commission to reconsider its conclusion in light of the
changed circumstances.

The Commission's resolution of this case is also wrong in a different
regard. Starpower appealed the Virginia Commission's decision to federal
district court under section 252(e)(6), while simultaneously bringing
its preemption argument before this Commission. But the statute does not
allow a party to pursue alternative remedies in this manner. Rather, it
says that a proceeding in this Commission and subsequent judicial review
of that determination are the "exclusive remedies" for a state
commission's failure to act. 47 U.S.C. § 252(e)(5). Starpower, however,
has not behaved as if we have exclusive jurisdiction. Rather, by filing
a complaint in the district court, Starpower has admitted that the
Virginia Commission made a reviewable determination and that district
court -- not this Commission -- has jurisdiction over this dispute. In
my opinion, as an alternative to referring this matter to the Virginia
Commission, we should have deferred any decision on our part until the
district court had an opportunity to review the Virginia Commission's
determination.

**STATEMENT OF COMMISSIONER MICHAEL K. POWELL**

*Re: Starpower Communications, LLC Petition for Preemption of
Jurisdiction of the Virginia State Corporation Commission Pursuant to
Section 252(e)(5) of the Telecommunications Act of 1996*, Memorandum
Opinion and Order, CC Docket No. 00-52.

Although it seems particularly unfortunate that we must preempt a state
commission for "failure to act" based on its reaction to our garbled
*Reciprocal Compensation Order,* I believe the record and statute compel
this result.

Prior to that order, a number of state commissions, including
Virginia's, had chosen to treat a phone call to destinations on the
Internet as two calls; the first "call" was a local one to an Internet
service provider (ISP), and the second "call" was from the ISP to
destinations on the Internet. The first of these segments was clearly
"telecommunications" and thus states required reciprocal compensation to
be paid, pursuant to section 251(b)(5), by the originating local carrier
to the local carrier carrying the traffic to the ISP. In our *Reciprocal
Compensation Order,* we declared that Internet-bound traffic was a
single communication (*i.e.,* one call, rather than two) and thus the
nature of the communication was interstate. The effect of this
declaration was to preempt the "two-call theory" used by Virginia and
other states in awarding reciprocal compensation. Moreover, because the
nature of the Internet-bound calls was interstate, it empowered the FCC,
if it chose, to determine a federal compensation scheme for such
traffic. (Because this declaratory ruling potentially pitted the federal
authority against state authority, the "one-call"/"two-call" dispute is
frequently referred to as the "jurisdictional issue.") Although we did
not establish a federal inter-carrier compensation mechanism for the
traffic we had just declared interstate, we did initiate a subsequent
proceeding to consider that question, which is still pending.

Because we did not proffer a federal compensation rule in our
*Reciprocal Compensation Order*, the question arose as to how our
decision would affect current interconnection agreements that included
reciprocal compensation provisions. The Commission did not wish to
abrogate immediately those agreements and thus suggested that states
could continue to "treat" the traffic as local until we considered
alternate compensation schemes. This caused considerable confusion among
state commissions and carriers. At once, we said the traffic was
interstate and within our authority and at the same time that it could
be "treated" as local, permitting states to sustain current agreements
under some vague notion of delegation. In addition to permitting states
to continue to treat traffic as local for some period, we also suggested
a number of bases other than the two-call theory on which a state could
act, including state contracting principles and any "other legal or
equitable considerations."[^24] At the time, I questioned this analysis
as one that would only confuse states and that would raise more
questions than it resolved.[^25]

Starpower petitioned the Virginia Commission to resolve a dispute
between it and Bell Atlantic. In an order, Virginia demonstrated that it
was reasonably in doubt about how the FCC would ultimately rule on
reciprocal compensation and that it did not feel empowered to act on
some purported delegation by the FCC. The Virginia Commission
specifically "declined jurisdiction" and instructed the parties to seek
their relief at the FCC.[^26] A fair reading of the Virginia
Commission's decision is that it provided a reasoned basis for why the
Virginia Commission would not resolve the underlying interconnection
dispute, but Virginia failed to act nonetheless.

Section 252 clearly requires state commissions to resolve
interconnection disputes expeditiously in order to allow carriers to get
back to the business of providing service, rather than litigating. This
duty is not limited to any particular basis for resolving these
disputes, such as the jurisdictional nature of traffic between carriers.
Rather, state commissions have a duty to resolve interconnection
disputes by relying on any legitimate bases (including state law bases),
so long as those bases do not conflict with federal law.

Thus, even if we were to accept the Virginia Commission\'s argument that
the ambiguities created or perpetuated by our *Reciprocal Compensation
Order* prevented the state from resolving the interconnection dispute on
the basis of jurisdiction, Virginia had a duty to look at other bases
for resolution. Unfortunately, however, there is no indication that the
Virginia Commission looked at any bases for resolution other than
jurisdiction, despite the fact that it had already concluded that
jurisdiction was left ambiguous by our *Reciprocal Compensation Order.*
This seems particularly troubling given the existence of other potential
bases for resolution, some of which we alluded to in that order.

Moreover, some of the text of the Virginia Commission's decision
declining to resolve the instant interconnection dispute reads almost as
an admission that it failed to act, in that the Virginia Commission
knowingly failed to resolve a dispute that it likely knew it could
resolve.[^27] Although the Virginia Commission's analysis may persuade
us that it acted reasonably or that the FCC contributed to Virginia's
dilemma, the state commission\'s rationales do not change the fact that
it did not resolve the dispute, which section 252 requires it to do.

In addition, I would note that the equities or policy benefits of
section 252 run to the disputing carriers, particularly new entrants,
rather than to state commissions. Although it is important, in the
interest of promoting federal-state comity, that we try to avoid
unnecessary preemption, what is most important in considering preemption
here is that the carriers have not enjoyed the benefit of the forum for
dispute resolution guaranteed them by section 252. Section 252(e)(5)
says, in essence, that when the state fails to provide the section 252
forum for resolving interconnection disputes, the FCC has to step in to
perform the state\'s responsibilities. That is why we must preempt here,
despite any reluctance we might have given the troubled nature of our
reciprocal compensation precedents.

I also am unpersuaded that Starpower is somehow estopped from seeking
preemption by the fact that it simultaneously filed an action in
district court. I believe that FCC preemption is the exclusive remedy
for a party that believes the state commission has failed to act.[^28]
When there is some question, however, as to whether the facts, fairly
read, evidence a failure to act it is reasonable for the party to seek
relief both at the Commission (which has exclusive authority if the
state commission fails to act) and in district court (which has
jurisdiction to review the state commission's decision if it did *not*
fail to act). I am unwilling to conclude that, by turning to both forums
simultaneously, Starpower has somehow conceded that the Virginia
Commission acted within the meaning of section 252(e)(5). The law does
not make clear which forum -- the FCC or the district court -- has the
authority in the first instance to determine whether there has been a
failure to act.

For these reasons, I support, albeit reluctantly, the decision to
preempt the Virginia Commission in this case.

[^1]: Petition of Starpower Communications, LLC Pursuant to Section
    252(e)(5) of the Communications Act, CC Docket No. 00-52 (filed Mar.
    16, 2000) (Petition); *see* *Pleading Cycle Established for Comments
    on Section 252(e)(5) Petition filed by Starpower Communications*, CC
    Docket No. 00-52, Public Notice, DA 00-630 (rel. Mar. 21, 2000)
    (Mar. 21st Public Notice). MCI WorldCom, Inc., Cox Communications,
    Inc., and Bell Atlantic and GTE filed comments. Starpower, MCI
    WorldCom, Inc., AT&T Corp., and Bell Atlantic and GTE filed replies.

[^2]: 47 U.S.C. § 252(e)(5). Section 252 was added to the Communications
    Act of 1934 by the Telecommunications Act of 1996 (1996 Act), Pub.
    L. No. 104-104, 110 Sta. 56 (1996 Act), *codified at* 47 U.S.C. §§
    151 *et seq*. Hereafter, all citations to the 1996 Act will be in
    accordance with its codification in Title 47 of the United States
    Code.

[^3]: 47 U.S.C. § 252(e)(5).

[^4]: *See generally* 47 U.S.C. § 252.

[^5]: Petition at 4.

[^6]: *Id.*

[^7]: The Virginia Commission stated that this Commission's "failure to
    act on either inter-carrier compensation or separations reform for
    ISP-traffic . . . has created great regulatory uncertainty" and
    that, in the absence of any Commission rules on inter-carrier
    compensation, "any interpretation of the instant agreements we might
    reach may well be inconsistent with the FCC's final order in its
    rulemaking." *Petition of Starpower Communications, LLC For
    Declaratory Judgment Interpreting Interconnection Agreement with GTE
    South, Inc*., Case No. PUC990023, Final Order (Jan. 24, 2000)
    (*Starpower/GTE Decision*) at 7. The Virginia Commission was
    referring to the Commission's outstanding Notice of Proposed
    Rulemaking examining inter-carrier compensation for ISP-bound
    traffic. *See* *Implementation of the Local Competition Provisions
    in the Telecommunications Act of 1996, Inter-Carrier Compensation
    for ISP-Bound Traffic*, CC Docket Nos. 96-98 and 99-68, Declaratory
    Ruling and Notice of Proposed Rulemaking, 14 FCC Rcd 3689 (1999)
    (*Reciprocal Compensation Order*), *vacated and remanded*, *Bell
    Atlantic Telephone Co. v. Federal Communications Comm'n*, 206 F.3d 1
    (D.C. Cir. 2000).

[^8]: *Petition of Starpower Communications, LLC, For Declaratory
    Judgment and Enforcement of Interconnection Agreement with Bell
    Atlantic--Virginia, Inc*., Case No. PUC990156, Order Dismissing
    Petition (Feb. 9, 2000) (*Starpower/Bell Atlantic Decision)* at 4.

[^9]: *Starpower/GTE Decision* at 7. *Starpower/Bell Atlantic Decision*
    at 4.

[^10]: 47 U.S.C. § 252(e)(5).

[^11]: 47 C.F.R. § 51.801(b*). See also Implementation of the Local
    Competition Provisions in the Telecommunications Act of 1996*, CC
    Docket No. 96-98, First Report and Order, 11 FCC Rcd 15499,
    16122-32, para. 1285 (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 Utils. Bd.
    v. FCC*, 120 F.3d 753 (8^th^ Cir. 1997), *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.*

[^12]: *See Local Competition Order* 11 FCC Rcd at 16122--32, para.
    1285. In deciding a number of prior cases under Section 252(e)(5),
    the Commission applied Section 51.801(b) of the rules as governing.
    We note, however, that all of these cases arose in the context of
    states' mediation and arbitration obligations or in instances where
    we found that a state commission had acted. *See In the Matter of
    Global NAPS Inc. Petition for Preemption of Jurisdiction of the
    Massachusetts Department of Telecommunications and Energy Pursuant
    to Section 252(e)(5) of the Telecommunications Act of 1996*, CC
    Docket No. 99-354, Memorandum Opinion and Order, DA 00-510 (rel.
    March 7, 2000)*. See Also In the Matter of Petition of MCI for
    Preemption Pursuant to Section 252(e)(5) of the Telecommunications
    Act of 1996,* CC Docket No. 97-166, Memorandum Opinion and Order, 12
    FCC Rcd 15594 (rel. Sept. 26, 1997).

[^13]: *Southwestern Bell Telephone Co. v. Public Utility Commission of
    Texas*, 208 F.3d 475 (5^th^ Cir. 2000) ("\[T\]he Act's grant to the
    state commissions of plenary authority to approve or disapprove
    these interconnection agreements necessarily carries with it the
    authority to interpret and enforce the provisions of agreements that
    state commissions have approved."); *Illinois Bell Telephone Company
    v. WorldCom Technologies, Inc.,* 179 F.3d 566 (7^th^ Cir. (Ill.) Jun
    18, 1999*) as amended* (Aug. 19, 1999)(holding that the Act
    "specifically provides state commissions with an important role to
    play" in interpreting and enforcing interconnection agreements).

[^14]: *See* Petition at 7; Comments of MCI at 4-5. We note that, in
    other circumstances, parties may be bound by dispute resolution
    clauses in their interconnection agreement to seek relief in a
    particular fashion, and, therefore, the state commission would have
    no responsibility under section 252 to interpret and enforce an
    existing agreement. In this case, however, the relevant
    interconnection agreements do not expressly specify how the disputes
    shall be resolved. *See* Interconnection Agreement between Starpower
    LLC and Bell Atlantic-Virginia, Inc., dated March 9, 1998, para.
    2.3, and October 19, 1999, § 24; and Interconnection Agreement
    between Starpower, LLC and GTE South, Inc., effective March 11,
    1998, § XVIII.

[^15]: *Starpower/GTE Decision* at 6.

[^16]: Our decision here should not be construed to imply that our
    authority to interpret and enforce interconnection agreements is
    confined to the context of section 252(e)(5) of the Act. Indeed, the
    Commission has held to the contrary. *See Local Competition Order*,
    11 FCC Rcd at 15563-63, paras. 124-29.

[^17]: Comments of Bell Atlantic and GTE at 2.

[^18]: *See* *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*, CC Docket Nos. 97-163, 97-164, 97-165, Memorandum Opinion
    and Order, 13 FCC Rcd 1755, 1758-59, paras. 5, 33 (1997), *recons.
    denied*, 14 FCC Rcd 7024 (1999).

[^19]: *See* Comments of Bell Atlantic and GTE at 3. We note that
    Starpower's appeal to the U.S. District Court for the Eastern
    District of Virginia seeks only a determination that the Virginia
    Commission failed to exercise its discretion properly. The appeal
    does not ask the District Court to interpret the underlying merits
    of the dispute or otherwise address the substance of the case*.
    Starpower Communications, LLC v. The Virginia State Corporation
    Commission,* Petition for Judicial Review and Complaint for
    Declaratory Judgment, Civil Action 00-308-A, (E.D. Va.) (filed Feb.
    23, 2000).

[^20]: Any filings made by Starpower must meet the requirements of the
    Commission\'s rules governing the filing of formal complaints. *See*
    47 CFR § 1.720 *et seq*.

[^21]: *Reciprocal Compensation Order*, 14 FCC Rcd at 3703-6, paras. 24
    and 27.

[^22]: *Local Competition Order*, 11 FCC Rcd at 16129, para. 1289.

[^23]: 47 U.S.C. § 252(e)(6).

[^24]: *Reciprocal Compensation Order* at ¶ 27.

[^25]: *See id.* (Statement of Commissioner Michael K. Powell).

[^26]: *Starpower/GTE Decision* at 7 ("We will dismiss these petitions
    without prejudice but encourage the parties to carry their requests
    for construction of these agreements to the FCC where they can
    obtain relief that should be consistent with the rules the FCC may
    issue in the future.").

[^27]: In particular, the Virginia Commission never denied that it could
    resolve the dispute on other grounds, but argued that resolving the
    dispute on non-jurisdictional grounds would not be "practical" given
    the possibility that such resolution could ultimately be in tension
    with future FCC orders regarding reciprocal compensation. *See e.g.,
    id.* at 6-7 ("\[A\]ny interpretation of the instant agreements we
    *might* reach may well be inconsistent with the FCC's final order in
    its rulemaking.") (emphasis added); *id.* at 7 ("Given the
    possibility of conflicting results being reached by this Commission
    and the FCC, we believe the only *practical* action is for this
    Commission to decline jurisdiction and allow their parties to
    present their cases to the FCC.") (emphasis added).

[^28]: Thus, I am in disagreement with the suggestion in a footnote of
    this decision that there are bases for FCC involvement in resolving
    the instant dispute that do not turn on section 252(e)(5).