*Pages 1--13 from  Microsoft Word - 18819.doc*
 Federal  Communications  Commission  FCC  00-  107 
 Before  the  FEDERAL  COMMUNICATIONS  COMMISSION 
 Washington,  D.  C.  20554 


 In  the  Matter  of  )  ) 
 )  Bell  Atlantic-  Delaware,  Inc.,  Bell  ) 
 Atlantic-  Maryland,  Inc.,  Bell  Atlantic-  New  )  Jersey,  Inc.,  Bell  Atlantic-  Pennsylvania,  Inc.,  ) 
 Bell  Atlantic-  Virginia,  Inc.,  Bell  )  Atlantic-  Washington,  D.  C.,  Inc.,  Bell  Atlantic-  ) 
 West  Virginia,  Inc.,  New  York  Telephone  )  Company,  and  New  England  Telephone  and  )  File  No.  E-  99-  22-  R 
 Telegraph  Company,  )  ) 
 Complainants,  )  ) 
 v.  )  ) 
 Global  NAPs,  Inc.,  )  ) 
 Defendant.  ) 
 ORDER  ON  RECONSIDERATION 
 Adopted:  March  17,  2000  Released:  March  22,  2000 
 By  the  Commission: 
 I.  INTRODUCTION 
 1.  In  this  Order,  we  deny  a  petition  filed  by  Global  NAPs,  Inc.  (Global  NAPs)  1  seeking  reconsideration  of  our  order  2  granting  a  formal  complaint  brought  by  various  Bell 
 Atlantic  companies  (collectively,  Bell  Atlantic)  against  Global  NAPs  pursuant  to  section  208  of  the  Communications  Act  of  1934,  as  amended  (Act).  3  For  the  reasons  discussed  below,  we 
 conclude  that,  in  the  Order:  (1)  the  Commission  did  not  violate  the  Communications  Act,  the  Administrative  Procedure  Act  (APA),  the  Due  Process  Clause,  or  its  burden  of  proof  rules  by 
 basing  its  decision  on  legal  theories  not  raised  by  Bell  Atlantic;  and  (2)  the  Commission  did  not 


 1  Bell  Atlantic-  Delaware,  Inc.,  et  al.  v.  Global  NAPs,  Inc.,  Petition  for  Reconsideration,  File  No.  E-  99-  22-  R  (filed 
 January  3,  2000)  (Global  NAPs  Petition).  See  47  U.  S.  C.    405(  b)(  1);  47  C.  F.  R.    1.106.  2  Bell  Atlantic-  Delaware,  Inc.,  et  al.  v.  Global  NAPs,  Inc.,  Memorandum  Opinion  and  Order,  FCC  99-  381,  File  No. 


 E-  99-  22  (rel.  Dec.  2,  1999)  (Order).  3  47  U.  S.  C.    208. 
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 err  in  ruling  that,  as  of  their  filing  date,  Sections  7  and  7A  of  Global  NAPs  F.  C.  C.  Tariff  No.  1  (Tariff)  violated  section  201(  b)  of  the  Act  4  and  provided  no  basis  for  Global  NAPs  to  collect 
 compensation  for  its  ISP  Traffic  Delivery  Service.  5 
 II.  BACKGROUND 


 2.  The  parties  do  not  dispute  the  underlying  facts  that  led  to  the  filing  of  Bell  Atlantics  complaint.  6  In  addition,  neither  party  challenges  any  finding  of  fact  in  the  Order. 
 Therefore,  this  Order  incorporates  by  reference  the  facts  described  in  the  Order.  7 
 3.  In  the  Order,  we  agreed  with  Bell  Atlantic  that  the  challenged  provisions  of  Global  NAPs  Tariff  violated  section  201(  b)  of  the  Act.  We  concluded  that,  as  of  their  filing 
 date,  Sections  7  and  7A  of  Global  NAPs  Tariff  were  unlawful  in  two  respects.  First,  we  found  that  the  challenged  Tariff  provisions  were  not  clear  and  explicit,  as  required  by  section  61.2  of 
 our  rules,  8  because  those  provisions  condition  the  imposition  of  charges  on  circumstances  that  were  indeterminate  when  the  [T]  ariff  took  effect  and  remain  indeterminate  today.  Specifically, 
 the  challenged  Tariff  provisions  purported  to  apply  only  to  ISP-  bound  traffic  for  which  Global  NAPs  received  no  compensation  from  Bell  Atlantic  under  the  parties  existing  interconnection 
 agreement.  9  In  this  instance,  the  parties  had  executed  an  interconnection  agreement  despite  an  acknowledged  failure  to  agree  on  the  meaning  of  the  inter-  carrier  compensation  provisions  in 
 that  agreement.  The  parties  left  that  issue  to  the  Massachusetts  Department  of  Telecommunications  and  Energy  (DTE).  When  Global  NAPs  filed  its  Tariff,  the  Massachusetts 
 DTE  had  not  yet  reached  a  final  determination  regarding  whether  and  how  the  parties  existing  interconnection  agreement  provided  for  inter-  carrier  compensation  for  ISP-  bound  traffic.  Thus, 
 the  parties  did  not  know  at  the  time  the  Tariff  provisions  were  filed  whether  Global  NAPs  would  receive  such  compensation  from  Bell  Atlantic  pursuant  to  their  existing  interconnection 
 agreement.  As  a  result,  we  concluded  that  the  parties  were  also  unable  to  determine  whether  Bell  Atlantic  was  incurring  charges  under  these  Tariff  provisions.  10  Accordingly,  we  concluded 


 4  47  U.  S.  C.    201(  b)  (  All  charges,  practices,  classifications,  and  regulations  for  and  in  connection  with  such 
 [interstate]  communication  service,  shall  be  just  and  reasonable,  and  any  such  charge,  practice,  classification,  or  regulation  that  is  unjust  and  unreasonable  is  hereby  declared  to  be  unlawful.). 
 5  Specialized  Common  Carrier  Service  Regulations  and  Rates  of  Global  NAPs,  Inc.,  Tariff  F.  C.  C.  No.  1  (effective 
 April  15,  1999)  (Global  NAPs  Tariff  or  Tariff).  6  See,  e.  g.,  Bell  Atlantic-  Delaware,  Inc.,  et  al.  v.  Global  NAPs,  Inc.,  Answer,  File  No.  E-  99-  22  (filed  July  28,  1999) 


 (Global  NAPs  Answer)  at  1-  2  (  The  relevant  facts  in  this  case  are  few  in  number  and  not  fundamentally  in  dispute.  What  is  in  dispute  is  the  legal  and  economic  consequences  of  these  facts.)  at  6  (  Bell  Atlantics 
 complaint  is  not  fundamentally  fact-  based.  To  the  contrary,  Bell  Atlantic  challenges  Global  NAPs  legal  right  to  file  any  tariff  governing  the  interstate  traffic  at  issue  here  at  all.);  Bell  Atlantic-  Delaware,  Inc.,  et  al.  v.  Global 
 NAPs,  Inc.,  Global  NAPs  Brief  on  Non-  Cost  Issues,  File  No.  E-  99-  22  (filed  Sept.  2,  1999)  at  1  (Global  NAPs  Non-Cost  Brief)  ([  A]  t  bottom  the  matter  is  simple.  The  question  raised  by  Bell  Atlantics  complaint,  then,  is  whether 
 the  tariff  meets  the  general  just  and  reasonable  standard  of  Section  201(  b).).  7  See  Order  at  paras.  3-  14. 
 8  47  C.  F.  R.    61.2. 
 9  ISP-  bound  traffic  consists  of  calls  originated  by  Bell  Atlantic  customers  that  are  handed  off  to  Global  NAPs  for 


 delivery  to  Internet  service  providers  (ISPs).  10  Order  at  paras.  2,  16-  23. 
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 that  Global  NAPs  cannot  reasonably  bill  Bell  Atlantic  under  this  [T]  ariff  when  the  very  applicability  of  the  [T]  ariff  has  yet  to  be  determined.  11 
 4.  Second,  we  found  that  Global  NAPs  Tariff  was  not  self-  contained,  but  rather  impermissibly  cross-  referenced  an  external  document  (i.  e.,  an  interconnection  agreement),  in 
 violation  of  section  61.74(  a)  of  our  rules.  Section  61.74  of  our  rules  provides  that,  in  the  absence  of  a  waiver,  no  tariff  publication  filed  with  the  Commission  may  make  reference  to  any  other 
 tariff  publication  or  to  any  other  document  or  instrument.  12 
 5.  In  its  Petition  for  Reconsideration,  Global  NAPs  argues  that  the  Order  is  flawed  in  several  ways.  First,  Global  NAPs  claims  that  the  Order  breached  Global  NAPs  right  to 
 notice  and  an  opportunity  to  be  heard  under  the  Communications  Act,  the  APA,  and  the  Due  Process  Clause,  because  the  Commission  based  its  decision  on  legal  theories  not  raised  by  Bell 
 Atlantic  or  briefed  by  Global  NAPs.  13  Second,  Global  NAPs  asserts  that  the  Order  illegally  relieved  Bell  Atlantic  of  its  burden  of  proof,  because  the  Order  relies  on  grounds  as  to  which 
 Bell  Atlantic  allegedly  presented  no  argument  or  evidence.  14  Third,  Global  NAPs  argues  that  the  Order  violates  the  Communications  Act,  the  APA,  and  the  5  th  Amendment  by  retroactively 
 setting  aside  its  Tariff  and  thereby  depriving  Global  NAPs  of  any  compensation  for  the  interstate  services  it  provided  to  Bell  Atlantic.  15  Finally,  Global  NAPs  claims  that  the  two  grounds  on 
 which  the  Order  relies  are  not  valid  bases  for  invalidating  the  Tariff.  16  For  the  reasons  discussed  below,  we  reject  all  of  Global  NAPs  arguments  and  deny  its  petition  for  reconsideration. 


 III.  DISCUSSION 
 A.  The  Commission  Has  Not  Violated  Global  NAPs  Right  to  Notice  and  Opportunity  to  be  Heard. 


 6.  Global  NAPs  argues  that  the  Order  is  procedurally  defective  under  the  Communications  Act,  the  APA,  and  the  Due  Process  Clause,  because  it  relies  on  matters  as  to 
 which  Global  NAPs  received  no  notice  and  which  the  [C]  omplainant  did  not  plead  or  prove.  17  It  is  instructive,  in  analyzing  this  argument,  to  consider  how  courts  address  these  same 
 circumstances.  It  is  well  settled  that  when  an  issue  or  claim  is  properly  before  the  court,  the  court  is  not  limited  to  the  particular  legal  theories  advanced  by  the  parties,  but  rather  retains  the 
 independent  power  to  identify  and  apply  the  proper  construction  of  governing  law.  18  It  is, 
 11  Order  at  para.  21. 
 12  47  C.  F.  R.    61.74(  a).  See  Order  at  paras.  2,  24. 
 13  Global  NAPs  Petition  at  Summary,  5-  10;  In  the  Matter  of  Bell  Atlantic-  Delaware,  Inc.,  et  al.  v.  Global  NAPs, 


 Inc.,  Reply  in  Support  of  Petition  for  Reconsideration,  File  No.  E-  99-  22-  R  9  (filed  January  21,  2000)  (Global  NAPs  Reply)  at  4-  9. 
 14  Global  NAPs  Petition  at  Summary,  11-  16;  Global  NAPs  Reply  at  1. 
 15  Global  NAPs  Petition  at  Summary,  7,  12-  15;  Global  NAPs  Reply  at  1,  6-  7,  9-  10. 
 16  Global  NAPs  Petition  at  Summary,  17-  23;  Global  NAPs  Reply  at  1. 
 17  Global  NAPs  Petition  at  24. 
 18  Kamen  v.  Kemper  Financial  Services,  500  U.  S.  90,  99  (1991).  See,  e.  g.,  United  States  National  Bank  of  Oregon 


 v.  Independent  Insurance  Agents  of  America,  Inc.,  508  U.  S.  439,  446-  48  (1993)  (same  as  Kamen);  Arcadia  v.  Ohio  Power  Company,  498  U.  S.  73,  77  (1990)  (deciding  the  case  on  a  question  antecedent  to  those  raised  by  the  parties 


 and  ultimately  dispositive  of  the  present  dispute). 
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 therefore,  within  a  courts  discretion  to  consider  an  argument  not  raised  by  the  parties  if  the  court  finds  that  consideration  of  the  argument  is  necessary  in  order  to  decide  the  case  correctly.  19  As 
 the  Seventh  Circuit  Court  of  Appeals  has  explained: 
 [L]  itigants  failure  to  address  the  legal  question  from  the  right  perspective  does  not  render  us  powerless  to  work  the  problem  out 
 properly.  A  court  of  appeals  may  and  often  should  do  so  unbidden  rather  than  apply  an  incorrect  rule  of  law  to  the  parties 
 circumstances.  20 
 7.  We  believe  that  the  same  is  true  for  the  Commission  in  its  interpretation  and  application  of  the  Communications  Act  and  governing  regulations.  The  Act  repeatedly  affords 
 the  Commission  broad  discretion  to  conduct  its  proceedings  in  such  manner  as  will  best  conduce  to  the  proper  dispatch  of  business  and  to  the  ends  of  justice.  21  Indeed,  with  respect  to 
 common  carrier  complaint  proceedings,  the  Act  expressly  provides  the  Commission  with  broad  discretion  to  investigate  the  matters  complained  of  in  such  manner  and  by  such  means  as  it 
 shall  deem  proper.  22  This  discretion  encompasses  the  ability  to  consider  an  argument  not  raised  by  the  parties  if  doing  so  is  necessary  to  decide  a  case  correctly. 


 8.  In  investigating  the  underlying  complaint,  we  found  questions  arising  under  section  201(  b)  of  the  Act  that  were  antecedent  to  those  presented  by  Bell  Atlantic  and  ultimately 
 dispositive  of  the  dispute.  This  finding  triggered  our  over-  riding  obligation  to  serve  the  public  interest  by  interpreting,  applying,  and  enforcing  the  Act  correctly,  not  merely  in  some  manner 
 suggested  by  the  litigants.  Our  adjudication  of  cases  generates  precedents  and  clarifies  the  law,  providing  benefits  to  the  public  at  large.  This  crucial  function  would  be  unduly  constricted  were 
 we  blindly  and  without  exception  to  defer  to  the  parties  presentation  of  legal  theories.  Accordingly,  where,  as  here,  (1)  the  determinative  facts  are  on  the  record  and  undisputed;  23  (2) 
 the  complainant  does  raise  the  statutory  basis  on  which  we  rule  in  its  favor  (here,  section  201(  b)  of  the  Act);  (3)  the  undisputed  facts  and  the  record  as  a  whole  plainly  reveal  a  violation  of  the 
 law;  and  (4)  the  Act  requires  the  Commission  to  adjudicate  the  complaint  within  five  months,  24  we  have  discretion  under  sections  4(  i),  4(  j),  208(  a),  and  303(  r)  of  the  Act,  and  under  the  case 


 19  See,  e.  g.,  United  States  National  Bank  of  Oregon  v.  Independent  Insurance  Agents  of  America,  Inc.,  508  U.  S. 
 439,  446-  48  (1993);  Kamen  v.  Kemper  Financial  Services,  500  U.  S.  90,  99  (1991);  Arcadia  v.  Ohio  Power  Company,  498  U.  S.  73,  77  (1990);  United  States  v.  Dickerson,  166  F.  3d  667,  682,  &  682  n.  17  (4  th  Cir.),  cert. 


 granted,  120  S.  Ct  578  (1999)  (  Even  where  the  parties  abdicate  their  responsibility  to  call  relevant  authority  to  the  Courts  attention,    they  cannot  prevent  us  from  deciding  the  case  under  the  governing  law.)  ([  T]  his  Court 
 may,  in  its  discretion,  consider  issues  not  raised  below.  Without  question,  we  are  free  to  address  ourselves  to  any  legal  theory  that  would  bear  on  this  issue  under  appeal.);  Compton  v.  Subaru  of  America,  Inc.,  82  F.  3d  1513,  1529 
 (10  th  Cir.  1996)  (  We  conclude,  for  reasons  other  than  those  urged  by  Mr.  Compton  [the  appellee],  the  district  court  erred.) 
 20  Williams-  Guice  v.  Board  of  Education,  45  F.  3d  161,  164  (7  th  Cir.  1995). 
 21  47  U.  S.  C.    154(  j).  See  also  47  U.  S.  C.    154(  i),  303(  r). 
 22  47  U.  S.  C.    208(  a)  (emphasis  added). 
 23  See,  e.  g.,  Global  NAPs  Answer  at  1-  2,  6;  Global  NAPs  Non-  Cost  Brief  at  1. 
 24  Cf.  Hercules  Inc.  v.  Environmental  Protection  Agency,  598  F.  2d  91,  129  (D.  C.  Cir.  1978)  (acknowledging  that  a 


 statutory  deadline  may  require  an  administrative  agency  to  follow  relatively  streamlined  procedures). 
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 authority  described  above,  to  decide  an  adjudication  on  a  legal  theory  not  articulated  by  the  parties. 
 9.  The  three  Ninth  Circuit  cases  on  which  Global  NAPs  belatedly  relies  do  not  undermine  our  conclusion.  25  Those  cases  simply  hold  that  a  party  in  an  administrative 
 adjudication  should  have  notice  of  the  contested  issue  and  opportunity  to  present  evidence  relevant  thereto.  Here,  Global  NAPs  did  have  notice  of  the  core  issue    whether  its  Tariff 
 violated  section  201(  b)  of  the  Act    and  the  relevant  evidence  was  on  the  record  and  undisputed;  26  therefore,  the  Order  is  consistent  with  those  cases.  We  do  not  believe  that  those 
 cases  can  be  read  to  hold  that  an  agency  may  never  decide  an  adjudication  on  a  legal  theory  not  articulated  by  the  parties. 


 10.  Global  NAPs  asserts  for  the  first  time  in  its  Reply  Brief  that,  had  it  known  that  the  Commission  was  considering  the  particular  legal  theories  on  which  the  Order  ultimately  relied,  it 
 might  have  introduced  additional  or  different  facts  from  those  actually  introduced,  and  might  have  sought  discovery  from  Bell  Atlantic  on  certain  issues.  27  With  but  one  minor  and  irrelevant 
 exception,  28  however,  Global  NAPs  fails  to  specify  a  single  new  fact  or  discovery  request  that  it  would  have  proffered.  Moreover,  as  even  Global  NAPs  acknowledges,  29  Bell  Atlantics 
 complaint  raised  legal  issues,  not  factual  issues.  Accordingly,  on  all  of  the  bases  described  above,  we  reject  the  contention  that  the  Order  violated  Global  NAPs  procedural  rights  by 
 relying  on  legal  theories  not  specifically  raised  or  briefed  by  either  party.  30 


 25  Andriasian  v.  Immigration  and  Naturalization  Service,  180  F.  3d  1033  (9  th  Cir.  1999);  Department  of  Education 
 of  the  State  of  California  v.  Bennett,  864  F.  2d  655  (9  th  Cir.  1988);  National  Steel  &  Shipbuilding  Co.  v.  Director,  Office  of  Workers  Compensation  Programs,  616  F.  2d  420  (9  th  Cir.  1980).  Global  NAPs  cited  these  cases  for  the 


 first  time  in  its  Reply.  26  See,  e.  g.,  Global  NAPs  Answer  at  1-  2,  6;  Global  NAPs  Non-  Cost  Brief  at  1. 
 27  Global  NAPs  Reply  at  9  (emphases  added). 
 28  The  lone  exception  concerns  Global  NAPs  alleged  policy  regarding  bill  and  keep  arrangements,  which  we 


 discuss  in  Section  III  (D)(  1),  infra.  29  See,  e.  g.,  Global  NAPs  Answer  at  1-  2,  6;  Global  NAPs  Non-  Cost  Brief  at  1. 
 30  We  note  that  the  reconsideration  phase  of  this  proceeding  afforded  Global  NAPs  ample  opportunity  to  rebut  our 
 legal  reasoning  in  the  Order,  but  Global  NAPs  expressly  eschewed  that  opportunity.  See  Global  NAPs  Petition  at  Summary,  17;  Global  NAPs  Reply  at  2,  6  n.  8,  9.  Cf.  Petition  by  Texas  Instruments  for  a  Waiver  of    15.4(  m)  and   


 15.7  of  FCC  Rules,  Order  Denying  Reconsideration,  78  F.  C.  C.  2d  364,  370-  71  at  paras.  22-  24  (1980)  (and  cases  cited  therein)  (noting  that  a  partys  failure  to  take  full  advantage  of  the  argument  opportunity  presented  by 
 reconsideration  undercut  the  partys  argument  that  it  was  prejudiced  by  the  proceedings  that  preceded  reconsideration). 
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 B.  The  Commission  Has  Not  Violated  Its  Burden  of  Proof  Rules. 
 11.  According  to  Global  NAPs,  our  rules  regarding  the  burden  of  proof  in  complaint  proceedings  under  section  208  of  the  Act  require  that  any  claim  as  to  which  Bell  Atlantic  did 
 not  present  evidence  or  argument  is  a  claim  on  which  Global  NAPs  wins.  31  Global  NAPs  asserts,  therefore,  that  the  Order  illegally  relieved  Bell  Atlantic  of  its  burden  of  proof  by 
 basing  its  decision  on  claims  as  to  which  Bell  Atlantic  did  not  present  evidence  or  argument.  32 
 12.  Global  NAPs  is  correct  that  Bell  Atlantic  bore  the  burden  of  proof.  Global  NAPs  is  incorrect,  however,  that  Bell  Atlantic  failed  to  present  any  evidence  to  satisfy  that  burden. 
 Quite  the  contrary.  Bell  Atlantic  developed  a  record  of  undisputed  facts  and  public  documents  (e.  g.,  Global  NAPs  Tariff  and  Massachusetts  DTE  decisions)  that,  on  their  face,  revealed  a 
 violation  of  section  201(  b)  of  the  Communications  Act.  33  This  record  amply  met  Bell  Atlantics  burden  of  producing  a  preponderance  of  favorable  evidence,  regardless  of  whether  Bell  Atlantic 
 articulated  the  precise  legal  rationale  on  which  we  ultimately  relied.  Accordingly,  we  reject  Global  NAPs  contention  that  the  Order  violated  our  rules  regarding  burden  of  proof. 


 C.  The  Commission  Did  Not  Err  in  Holding  Global  NAPs  Tariff  Unlawful  as  of  Its  Filing  Date. 
 13.  Global  NAPs  contends  that,  under  the  Communications  Act,  the  APA,  and  the  Fifth  Amendment,  the  Commission  improperly  invalidated  Global  NAPs  Tariff  as  of  its  filing 
 date,  without  also  determining  some  reasonable  rate  to  be  paid  by  Bell  Atlantic.  34  In  particular,  Global  NAPs  submits  that  it  is  unjust  and  unreasonable  --  more  specifically,  a  form  of 
 confiscation  --  to  retroactively  relieve  Bell  Atlantic  of  any  obligation  to  pay  anything  at  all  for  the  work  Global  NAPs  does  in  delivering  jurisdictionally  interstate  ISP-  bound  traffic  at  Bell 
 Atlantics  request.  35 
 14.  Our  Order  has  not  eliminated  Global  NAPs  opportunity  to  obtain  compensation  for  its  delivery  of  Bell  Atlantic-  originated,  ISP-  bound  traffic.  Global  NAPs  had  (and  still  has)  an 
 ample  opportunity  to  obtain  such  compensation  outside  the  context  of  the  Tariff.  First,  under  sections  251  and  252  of  the  Act,  Global  NAPs  could  have  reached  a  mutually  acceptable 
 resolution  with  Bell  Atlantic  regarding  inter-  carrier  compensation  for  ISP-  bound  traffic  before  executing  an  interconnection  agreement  with,  and  accepting  traffic  from,  Bell  Atlantic.  Instead, 
 Global  NAPs  consciously  chose  to  execute  the  interconnection  agreement  and  deliver  traffic  without  such  a  meeting  of  the  minds,  and  deliberately  opted  to  have  the  issue  resolved  through 
 the  arbitration  processes  under  section  252  and/  or  the  complaint  processes  of  the  Massachusetts 


 31  Global  NAPs  Petition  at  11-  16,  citing  High  Tech  Furnace  Sys.  v.  Sprint  Comm.  Company,  14  FCC  Rcd  8040, 
 8044  at  para.  10  (1999);  IT&  E  Overseas,  Inc.  v.  Micronesian  Telecommunications  Corporation,  13  FCC  Rcd  16058,  16061-  2  at  para.  5  (1998);  Maydak  v.  AT&  T  Commns,  14  FCC  Rcd  6680,  6681-  2,  6683-  4  at  paras.  3,  8 


 (Comm.  Car.  Bur.  1999);  Krauss  v.  MCI  Telecommunications  Corporation,  14  FCC  Rcd  2770,  2776  at  para.  11  (Comm.  Car.  Bur.  1999);  Global  NAPs  Reply  at  1. 
 32  Global  NAPs  Petition  at  11.  See  also  Global  NAPs  Reply  at  1,  4. 
 33  See  47  U.  S.  C.    201(  b).  See  also  47  C.  F.  R.    61.2,  61.74(  a). 
 34  Global  NAPs  Petition  at  Summary,  7,  12-  15;  Global  NAPs  Reply  at  1,  6-  7,  9-  10. 
 35  Global  NAPs  Petition  at  13. 
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 DTE.  Having  freely  chosen  to  (1)  forego  the  certainty  of  compensation  through  a  jointly  acknowledged  agreement  with  Bell  Atlantic,  and  (2)  litigate  the  compensation  issue  with  the 
 Massachusetts  DTE,  Global  NAPs  cannot  be  heard  now  to  complain  that  it  is  somehow  unfair  to  disallow  compensation  under  the  entirely  separate,  and  mutually  exclusive,  tariff  process.  As 
 the  Order  observes,  [  u]  sing  the  tariff  process  to  circumvent  the  section  251  and  252  processes  cannot  be  allowed.  36 


 15.  Moreover,  Global  NAPs  has,  in  fact,  obtained  the  right  to  receive  compensation  for  the  delivery  of  ISP-  bound  traffic  via  the  non-  tariff  processes  described  above:  Bell  Atlantic 
 must  pay  an  amount  equal  to  the  contracts  reciprocal  compensation  rate  applied  to  the  traffic  not  in  excess  of  a  2:  1  terminating-  to-  originating  ratio.  37  Furthermore,  the  Massachusetts  DTE  has 
 afforded  Global  NAPs  the  opportunity  to  try  to  obtain  more  compensation  than  that    even  retroactively    pursuant  to  additional  negotiation/  mediation/  arbitration  under  section  252  of  the 
 Act.  38  Indeed,  two  other  carriers  have  already  negotiated  amendments  to  their  interconnection  agreements  with  Bell  Atlantic  that  provide  for  such  retroactive  compensation,  39  and  Global 
 NAPs  could,  at  a  minimum,  opt  into  one  of  those  agreements  pursuant  to  section  252(  i)  of  the  Act.  40  Finally,  when  the  Tariff  was  filed,  the  Tariffs  terms  did  not  permit  the  parties  to 
 determine  whether  the  Tariff  imposed  charges  on  Bell  Atlantic  for  the  delivery  of  ISP-  bound  traffic,  rendering  a  fundamental  aspect  of  the  Tariff  ambiguous.  41  Therefore,  for  all  of  these 
 reasons,  the  Orders  preclusion  of  any  compensation  under  the  Tariff  for  the  delivery  of  ISP-bound  traffic  does  not  confiscate  Global  NAPs  property  or  otherwise  treat  Global  NAPs 
 unfairly. 
 D.  The  Commission  Did  Not  Err  In  Concluding  That  The  Challenged  Tariff  Provisions  Are  Unlawful. 


 1.  The  Tariff  is  Indeterminate. 
 16.  Global  NAPs  disagrees  with  the  Commissions  conclusion  that,  based  on  the  language  of  Tariff  Section  7A.  1,  a  carrier  that  interconnects  with  Global  NAPs  cannot  determine 
 if  the  tariffed  charges  apply  until  the  resolution  of  any  underlying  dispute  regarding  whether  the  interconnection  agreement  requires  inter-  carrier  compensation  for  ISP-  bound  traffic. 
 Specifically,  Global  NAPs  contends  that  its  [  T]  ariff  is  quite  clear  that  the  key  triggering  event  is 
 36  Order  at  para.  23. 
 37  Complaint  of  MCI  WorldCom,  Inc.  against  New  England  Telephone  and  Telegraph  Company  d/  b/  a  Bell  Atlantic-Massachusetts, 


 Order,  D.  T.  E.  97-  116-  C  (Mass.  D.  T.  E.  rel.  May  19,  1999)  at  28  n.  31,  41  (Massachusetts  DTE  May  19,  1999  Order);  Complaint  of  MCI  WorldCom,  Inc.  against  New  England  Telephone  and  Telegraph  Company 


 d/  b/  a  Bell  Atlantic-  Massachusetts,  Complaint  of  Global  NAPs,  Inc.  against  New  England  Telephone  and  Telegraph  Company  d/  b/  a  Bell  Atlantic-  Massachusetts,  Order  Denying  Motions  for  Reconsideration  and  Dismissing  Global 
 NAPs  Complaint,  D.  T.  E.  97-  116-  D,  99-  39  (Mass.  D.  T.  E.  rel.  February  25,  2000)  at  16  n.  11  (Massachusetts  DTE  February  25,  2000  Order). 
 38  See  Section  III  (E),  infra. 
 39  See  Massachusetts  DTE  February  25,  2000  Order  at  19  n.  13. 
 40  47  U.  S.  C.    252(  i)  (  A  local  exchange  carrier  shall  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.). 
 41  See  Section  III  (D)(  1),  infra. 
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 whether  or  not  compensation  for  [ISP-  bound]  traffic  is  paid  by  the  connected  LEC.  42  Global  NAPs  further  contends,  therefore,  that  [  w]  hether  there  is  a  dispute  about  whether  such 
 compensation  is  or  is  not  due  under  an  interconnection  agreement  is  immaterial.  43 
 17.  The  applicability  of  Global  NAPs  tariffed  rates  for  ISP  Traffic  Delivery  Service  hinges  on  Section  7A.  1  of  the  Tariff,  which  provides,  in  pertinent  part: 


 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.  44 
 Global  NAPs  argument    that  the  Tariffs  applicability  turns  solely  on  whether  a  carrier  pays  Global  NAPs,  and  not  also  on  whether  an  interconnection  agreement  requires  a  carrier  to  pay 
 Global  NAPs    ignores  the  portion  of  the  Tariff  emphasized  above.  Reading  the  pertinent  provision  as  a  whole  reveals  that  the  Tariff  can  only  apply  when  the  terms  of  an  interconnection 
 agreement  do  not  mandate  a  carrier  to  pay  Global  NAPs  for  the  delivery  of  ISP-  bound  traffic.  Indeed,  Global  NAPs  essentially  acknowledges  as  much  by  stating  repeatedly  that  the  Tariff  (1) 
 defers  to  the  negotiation/  arbitration  processes  established  by  sections  251  and  252  of  the  Act;  45  (2)  is  by  its  terms  subject  to  state  commission  rulings  establishing  compensation 
 arrangements;  46  and  (3)  establish[  es]  a  compensation  obligation  that  applies  if  an  interconnection  agreement  does  not.  47  Those  statements  by  Global  NAPs  are  true  only  if 
 Tariff  Section  7A.  1  is  construed  to  mean  that,  if  a  dispute  about  inter-  carrier  compensation  for  ISP-  bound  traffic  arises  during  the  section  251/  252  process,  the  Tariff  does  not  apply  until  a  state 
 commission  rules  that  the  interconnection  agreement  does  not  establish  such  compensation. 
 18.  To  illustrate,  as  we  read  Section  7A.  1  of  the  Tariff,  if  a  carrier  does  not  pay  Global  NAPs  for  the  delivery  of  ISP-  bound  traffic,  and  the  interconnection  agreement  does  not 
 require  such  payment,  then  Global  NAPs  remedy  is  to  impose  charges  pursuant  to  the  Tariff;  on  the  other  hand,  if  a  carrier  does  not  pay  Global  NAPs  for  the  delivery  of  ISP-  bound  traffic, 
 and  the  interconnection  agreement  does  require  such  payment,  the  appropriate  remedy  is  to  sue  to  enforce  Global  NAPs  right  to  receive  compensation  from  the  Delivering  LEC  under  the 
 terms  of  an  interconnection  agreement.  48  For  another  illustration,  Global  NAPs  claims  that,  if  an  interconnecting  carrier  does  not  actually  pay  compensation,  then  the  Tariff  applies  -  even  if  a 
 state  commission  subsequently  decides  that  some  compensation  must  be  paid  under  the  interconnection  agreement.  If  that  is  true,  then  the  Tariff  allows  double-  charging  for  the  same 
 service    once  under  the  Tariff  and  later  under  the  interconnection  agreement    and  the  Tariff  would  then  clearly  be  unreasonable.  If  the  Tariff  does  not  allow  double-  charging,  then  its 


 42  Global  NAPs  Petition  at  17. 
 43  Global  NAPs  Petition  at  17-  18.  See  id.  at  22-  23;  Global  NAPs  Reply  at  4. 
 44  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)  (Global  NAPs  Tariff)  (emphasis  added).  45  Global  NAPs  Non-  Cost  Brief  at  23-  24,  46;  Bell  Atlantic-  Delaware,  Inc.,  et  al.  v.  Global  NAPs,  Inc.,  Global  NAPs 


 Reply  Brief  on  Non-  Cost  Issues,  E-  99-  22  (filed  Sept.  15,  1999)  at  5,  23-  34  (Global  NAPs  Non-  Cost  Reply  Brief).  46  Global  NAPs  Non-  Cost  Brief  at  5. 
 47  Global  NAPS  Non-  Cost  Reply  Brief  at  23  (emphasis  added). 
 48  Global  NAPs  Tariff,  Section  7A.  1. 
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 application  must  depend  on  a  preceding  determination  that  the  interconnection  agreement  does  not  require  compensation.  Thus,  contrary  to  Global  NAPs  contention,  a  carrier  cannot  simply 
 consult  its  checkbook  to  determine  whether  charges  will  accrue  under  the  Tariff;  a  carrier  must  also  know  what  the  terms  of  its  interconnection  agreement  with  Global  NAPs  require. 


 19.  The  Commission  also  noted  in  the  Order  a  concern  that  the  Tariff  provisions  would  conflict  with  any  bill  and  keep  arrangement  in  an  interconnection  agreement.  49  Global 
 NAPs  raises  a  number  of  objections  to  this  statement,  all  essentially  asserting  that  this  concern  is  merely  a  hypothetical  one,  none  of  which  we  find  persuasive.  First,  Global  NAPs  argues  that  it 
 has  no  such  agreements  with  any  LEC  and  has  a  policy  of  rejecting  such  agreements.  50  Yet,  as  noted  above,  Global  NAPs  entered  into  its  agreement  with  Bell  Atlantic  without  reaching 
 consensus  on  what  traffic  was  covered  by  the  reciprocal  compensation  provisions.  Thus,  it  is  not  clear  what  Global  NAPs  has  agreed  to.  Global  NAPs  argues  further  that  if  it  did  agree  to  a  bill 
 and  keep  provision  in  the  future,  any  such  problem  with  the  Tariff  could  be  resolved  by  inserting  provisions  into  the  interconnection  agreement  about  how  to  apply  the  Tariff  provisions.  51 
 Speculation  about  what  might  be  contained  in  future  interconnection  agreements,  however,  cannot  make  the  current  Tariff  language  sufficiently  definite  to  comply  with  section  201  of  the 
 Act. 
 20.  Global  NAPs  argues  also  that  the  problem  identified  by  the  Commission  could  not  exist  because  a  bill-  and-  keep  clause  in  an  interconnection  agreement  would  not  apply  to 
 jurisdictionally  interstate  ISP-  bound  traffic,  52  but  since  parties  are  free  to  agree  to  any  terms  they  wish  in  negotiating  agreements,  53  such  a  blanket  statement  is  simply  unsupportable.  Finally, 
 Global  NAPs  argues  that  if  it  had,  in  fact,  agreed  to  accept  no  compensation  for  ISP-  bound  calls,  then  it  is  not  clear  that  the  Commission  should  prohibit  it  from  enforcing  a  Tariff  provision  that 
 contradicts  that  agreement.  We  have  already  stated  quite  clearly  in  the  Order,  however,  that  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  partys  interconnection  agreement,  as  construed  by  the  appropriate  state  commission.  Using  the  tariff 
 process  to  circumvent  the  section  251  and  252  process  cannot  be  allowed.  54  We  are  not  persuaded  to  revisit  that  conclusion. 


 21.  In  the  end,  Global  NAPs  argues  that  the  Commissions  concern  should  be  resolved  by  interpreting  the  Tariff  as  considering  the  receipt  of  zero  compensation  for  ISP-  bound 
 calls  as  constituting  compensation  under  an  interconnection  agreement.  Global  NAPs  arguments,  however,  contradict  themselves.  Global  NAPs  has  argued  elsewhere  in  its  petition 


 49  [  I]  t  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.  Order  at  para.  23. 
 50  Global  NAPs  Petition  at  19. 
 51  The  parties    would  be  in  a  position  to  expressly  agree  that  payment  at  a  rate  of  zero  in  the  (hypothetical)  bill-and- 


 keep  contract  constitutes  payment  under  an  interconnection  agreement  for  purposes  of  the  tariff.  Global  NAPs  Petition  at  19. 
 52  Global  NAPs  Petition  at  20. 
 53  See  47  U.  S.  C.    252(  a)(  1). 
 54  Order  at  para.  23. 
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 that  the  Tariff  is  clear  because  one  need  not  look  to  the  terms  of  the  interconnection  agreement  to  determine  whether  compensation  is  due  under  the  Tariff  but  only  to  ones  checkbook.  Yet 
 here,  it  asserts  that  one  must  understand  the  terms  of  the  interconnection  agreement  in  order  to  determine  whether,  where  no  check  has  been  written,  Global  NAPs  has  nevertheless  received 
 compensation  pursuant  to  the  agreement.  Global  NAPs  arguments  on  this  point  simply  demonstrate  further  the  lack  of  clarity  in  its  tariff. 


 22.  In  any  event,  even  assuming,  arguendo,  that  Global  NAPs  interpretation  of  Tariff  Section  7A.  1  is  plausible,  so,  too,  is  the  Commissions  interpretation,  especially  given  the 
 Commissions  judicially  recognized  expertise  in  interpreting  tariffs.  55  The  existence  of  more  than  one  plausible  interpretation  renders  Tariff  Section  7A.  1  ambiguous  about  when  charges 
 accrue.  Even  Global  NAPs  acknowledges  that  ambiguous  tariff  provisions  must  be  construed  against  the  drafting  carrier.  56  Thus,  we  may  properly  construe  Section  7A.  1  of  the  Tariff  against 
 Global  NAPs  and  as  failing  to  convey  with  the  requisite  clarity  whether  charges  will  accrue  thereunder. 


 23.  Global  NAPs  appears  to  rely  on  Tariff  Section  7A.  2,  as  well  as  Tariff  Section  7A.  1,  to  argue  that  the  Commission  erred  in  finding  the  Tariff  to  be  indeterminate.  57  In  our 
 view,  however,  Tariff  Section  7A.  1  purports  to  establish  a  threshold  for  the  application  of  the  Tariff  at  all.  Therefore,  where,  as  here,  Tariff  Section  7A.  1  fails  to  establish  clearly  the  Tariffs 
 applicability,  the  terms  of  any  other  Tariff  provision  are  irrelevant.  Consequently,  for  all  of  the  reasons  described  above,  we  reject  Global  NAPs  contention  that  we  erred  in  concluding  that  the 
 Tariff  was  unlawfully  indeterminate. 
 2.  The  Tariff  Contains  an  Impermissible  Cross-  Reference. 
 24.  In  order  to  implement  section  201(  b)  of  the  Act  (among  other  provisions),  section  61.74(  a)  of  our  rules  provides  that  no  tariff  publication  filed  with  the  Commission  may  make 
 reference  to  any  other  tariff  publication  or  to  any  other  document  or  instrument.  58  Global  NAPs  asserts  that  its  Tariff  does  not  violate  section  61.74(  a),  because  the  Tariff  is  complete  in  itself, 


 55  See,  e.  g.,  Ambassador,  Inc.  v.  United  States,  325  U.  S.  317,  324  (1945);  American  Message  Centers  v.  FCC,  50 
 F.  3d  35,  39  (D.  C.  Cir.  1995);  Allnet  Communications  Serv.  Inc.  v.  National  Exchange  Carrier  Association,  965  F.  2d  1118,  1120  (D.  C.  Cir.  1992);  Total  Telecommunications  Services,  Inc.  v.  AT&  T,  919  F.  Supp.  472,  480 


 (D.  D.  C.  1996),  affd,  99  F.  3d  448  (D.  C.  Cir.  1996).  56  Global  NAPs  Petition  at  21  n.  24.  See,  e.  g.,  Commodity  News  Services,  Inc.  v.  Western  Union,  29  FCC  1208, 
 1213,  affd  29  FCC  1205  (1960).  57  Global  NAPs  Petition  at  17  n.  20.  Section  7A.  2  of  Global  NAPs  Tariff  provides:  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.  Global  NAPs  Tariff,  Section  7A.  2.  58  47  C.  F.  R.    61.74(  a)  (emphasis  added).  See  also  47  U.  S.  C.    201(  b).  Section  61.74(  a)  refers  to  any  document 
 referenced  in  a  tariff,  not  just  to  documents  containing  information  necessary  to  calculate  a  rate.  See,  e.  g.,  Amendments  of  Parts  1  and  61  of  the  Commissions  Rules,  Report  and  Order,  98  F.  C.  C.  2d  855,  876  at  para.  80 
 (1984);  AT&  T  Communications  Revisions  to  Tariff  FCC  No.  15,  Competitive  Pricing  Plan  No.  12,  Transmittal  No.  4742,  DA  93-  383,  Order,  1993  WL  756821  (Com.  Car.  Bur.  rel.  April  2,  1993). 
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 and  none  of  the  terms  of  any  interconnection  agreement  has  any  relevance  to  the  application  of  the  tariff.  59  To  support  this  assertion,  Global  NAPs  repeats  its  argument  that  the  applicability  of 
 the  Tariff  turns  only  on  whether  a  delivering  LEC  has  actually  paid  Global  NAPs,  and  not  also  on  whether  an  interconnection  agreement  requires  a  carrier  to  pay  Global  NAPs. 


 25.  As  we  previously  explained,  60  if  we  are  to  reconcile  the  Tariff  language  with  Global  NAPs  statements  about  deferring  to  the  state  negotiation/  arbitration  processes,  then  to 
 determine  whether  Global  NAPs  Tariff  applies,  Bell  Atlantic  must  consult  the  terms  of  its  interconnection  agreement  to  ascertain  whether  compensation  for  the  delivery  of  ISP-  bound 
 traffic  is  required.  Consequently,  the  Tariffs  cross-  reference  to  the  interconnection  agreement  constitutes  far  more  than  a  technical  defect;  it  constitutes  a  fundamental  flaw  in  the  Tariffs 
 clarity.  Accordingly,  even  assuming,  arguendo,  that  a  tariffs  reference  to  an  exogenous  document  is  improper  only  if  the  exogenous  document  contains  information  necessary  to 
 understand  the  tariff,  the  Tariffs  bare  cross-  reference  to  an  interconnection  agreement  violates  section  61.74(  a)  of  our  rules  and  renders  the  Tariff  unlawful.  61 


 26.  Global  NAPs  also  argues  that  it  is  far  from  clear  that  [s]  ection  61.74(  a)  applies  to  Global  NAPs  Tariff  [,  because]  the  Commission  has  permissively  detariffed  the  provision  of 
 access  services  by  non-  dominant  carriers  62  Thus,  Global  NAPs  seems  to  suggest  that,  in  light  of  our  adoption  of  permissive  detariffing  policies,  it  should  be  excused  from  following  the  law 
 that  applies  to  tariffs  that  a  carrier  chooses  to  file.  63  Again,  we  disagree.  Section  61.74(  a)  by  its  terms  plainly  applies  to  all  tariff  filings.  Our  order  providing  for  permissive  tariff  filing  does  not 
 exempt  non-  dominant  carriers  from  Part  61  tariff  filing  requirements.  If  a  non-  dominant  carrier  chooses  to  file  a  tariff  with  the  Commission,  as  Global  NAPs  has,  it  must  comply  with  Part  61  of 
 our  rules.  64  Global  NAPs  provides  no  compelling  reason  for  us  to  abandon  the  very  rules  intended  to  protect  those  subject  to  filed  tariffs.  Accordingly,  we  affirm  our  conclusion  that 
 Global  NAPs  Tariff  impermissibly  cross-  references  an  external  document  (i.  e.,  an  interconnection  agreement),  in  violation  of  section  61.74(  a)  of  our  rules. 


 E.  The  Massachusetts  DTEs  February  25,  2000  Order  Does  Not  Undermine  Our  Order. 
 27.  On  February  25,  2000,  the  Massachusetts  DTE  ruled,  inter  alia,  that  the  existing  interconnection  agreement  between  Global  NAPs  and  Bell  Atlantic,  as  presently  written,  does 


 59  Global  NAPs  Petition  at  22  (emphasis  in  original). 
 60  See  paras.  16-  18,  supra. 
 61  This  is  not  to  say  that,  in  all  instances,  we  would  declare  a  tariff  unenforceable  for  violations  of  section  61.74(  a). 


 See,  e.  g.,  Berwind-  White  Coal  Mining  Company  v.  Chicago  &  Erie  Railroad  Company,  235  U.  S.  371  (1914)  (upholding  carriers  tariff  because,  unlike  here,  its  defect  was  a  technicality  that  did  not  implicate  any  fundamental 


 aspects  of  the  tariffs  interpretation).  62  Global  NAPs  Petition  at  23. 
 63  Global  NAPs  Petition  at  23. 
 64  See  47  U.  S.  C.    201(  b);  47  C.  F.  R.  Part  61. 
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 not  provide  for  inter-  carrier  compensation  for  ISP-  bound  traffic.  65  The  Massachusetts  DTE  also  ruled,  however,  that  the  parties  could  engage  in  further  negotiations,  mediation,  and  arbitration 
 under  section  252  of  the  Act  to  attempt  to  amend  their  existing  interconnection  agreement  to  provide  for  such  compensation,  apparently  even  retroactively  for  the  period  beginning  when  Bell 
 Atlantic  first  stopped  paying.  66 
 28.  The  Massachusetts  DTE  February  25,  2000  Order  does  not  undermine  the  validity  of  our  Order.  Our  Order  hinged  on  the  conclusion  that,  when  the  Tariff  was  filed  in 
 April  1999,  it  was  indeterminate  and  cross-  referenced  an  exogenous  document.  The  Massachusetts  DTE  February  25,  2000  Order  does  not  cure  those  problems  retroactively. 
 Moreover,  on  February  14,  2000,  Global  NAPs  revised  the  Tariff  at  issue  in  such  a  way  as  to  eliminate  the  provisions  that  were  found  unlawful  in  our  Order.  67  Thus,  the  Massachusetts  DTE 
 February  25,  2000  Order  can  have  no  prospective  effect  on  the  original  Tariff  language.  Consequently,  the  Massachusetts  DTE  February  25,  2000  Order  provides  no  basis  on  which  to 
 reconsider  our  Order. 


 65  See  Massachusetts  DTE  February  25,  2000  Order  at  16-  21.  This  ruling  by  the  Massachusetts  DTE  formed  the 
 primary  basis  on  which  the  Common  Carrier  Bureau  recently  denied  Global  NAPs  peition  for  preemption  pursuant  to  section  252(  e)(  5)  of  the  Act,  47  U.  S.  C.    252(  e)(  5).  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).  66  Massachusetts  DTE  February  25,  2000  Order  at  19-  20.  In  particular,  the  Massachusetts  DTE  February  25,  2000 
 Order  reaffirm[  s]  and  reiterate[  s]  (id.  at  19)  the  Massachusetts  DTEs  prior  direction  that  the  carriers  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.  Massachusetts  DTE 
 May  19,  1999  Order  at  30  (emphasis  added).  67  Specialized  Common  Carrier  Service  Regulations  and  Rates  of  Global  NAPs,  Inc.,  Revised  Tariff  F.  C.  C.  No.  1, 
 at  81-  83.2,  Sections  7,  7.1,  7.2,  7.3,  7.4,  7.5  (effective  February  14,  2000). 
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 Federal  Communications  Commission  FCC  00-  107 
 13 
 IV.  ORDERING  CLAUSE 
 29.  Accordingly,  IT  IS  ORDERED  that,  pursuant  to  sections  1,  4(  i),  4(  j),  201(  b), 
 203(  c),  208,  and  405  of  the  Communications  Act  of  1934,  as  amended,  47  U.  S.  C.    151,  154(  i),  154(  j),  201(  b),  203(  c),  208,  405,  and  section  1.106  of  the  Commissions  rules,  47  C.  F.  R. 


   1.106,  that  the  Petition  for  Reconsideration  filed  by  Global  NAPs,  Inc.  IS  DENIED. 


 FEDERAL  COMMUNICATIONS  COMMISSION 
 Magalie  Roman  Salas  Secretary 
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