3. Discussion

3.1. AT&T's Position

AT&T argues that neither the ICA itself nor the state tariff covers cross-connects via the MDF.¹⁹ Despite conceding that cross-connects are a form of collocation,²⁰ AT&T simultaneously contends that the ICA's reference to "collocation" in Section XI.A (as well as the connections discussed in the definition of the term EISCC and the UNE Appendix, Sections 6.1 and 6.2) covers only connections between XO and AT&T, not between collocated CLECs.²¹ While apparently further conceding that UNE Appendix Section 6.3 addresses both CLEC-to-CLEC direct cross-connects and CLEC-to-CLEC cross-connects via the MDF, AT&T argues that the phrase "at its option" in Section 6.3 gives AT&T the unilateral right to choose what type of cross-connect it will allow, and that AT&T does not have to provide any cross-connect if AT&T allows the CLEC to provide its own.²² AT&T asserts that, because this is a negotiated rather than arbitrated ICA, Section 251 of the Act and the Collocation Order do not apply.²³ If that is so, there is nothing in the ICA for the Commission to enforce and, under the so-called "filed rate doctrine," the applicable rate must be the federal tariff rate under which XO originally ordered the service.²⁴ AT&T states that the $45.68 rate it is currently charging XO for CLEC-to-CLEC cross-connects via the MDF is located in Attachment 1 of the 2005 amendment to the ICA, entitled "Monthly Rec Rates," under the heading "Expanded Interconnection Service Cross Connect (EISCC)" and at the line for a DS3 EISCC.²⁵

3.2. XO's Position

XO argues that Section 6.3 of the UNE Appendix to the ICA gives XO the right to cross-connects via the MDF²⁶ and that the correct rate is the (TELRIC) rate for EISCCs from the ICA's Appendix Pricing Attachment A, as amended in 2005, at lines 443-455 under the heading "EISCC Basic to Collocation."²⁷ XO argues that the federal tariff rate is inapplicable because it addresses only collocation transport arrangements via direct connections, not cross-connects between CLECs via the MDF under Section 251(c)(6).²⁸ XO asserts that, even if the ICA did not provide an explicit right to cross-connects via the MDF or set forth a rate, the Commission must interpret the ICA consistently with the Act and the related FCC orders.²⁹ Although the ICA predates the FCC's 2001 Collocation Order,³⁰ XO argues that the ICA explicitly recognizes that the FCC may act in the future to modify the parties' arrangements memorialized in the ICA (e.g., the phrase "to the extent required by the FCC" in UNE Appendix Section 6.3).³¹

3.3. Analysis of the Issues

Pursuant to Section 251(c)(6) of the Act, ILECs must allow CLECs to collocate their equipment on ILECs' premises, and must provide CLECs with cross-connects to connect the CLEC's equipment both with the ILEC's equipment and other CLECs' collocated equipment.³² ILECs must provide appropriate cross-connects "as requested" by a CLEC.³³ The FCC recognizes cross-connects via the MDF as one of the types of cross-connect configurations that ILECs must provide.³⁴ The rate for cross-connects under Section 251(c)(6) is TELRIC.³⁵

Parties may opt out of the Act's regulatory regime to negotiate different terms and rates, and instead may enter into an ICA.³⁶ The Commission has the authority to enforce the Act's Section 251 interconnection requirements, including interpreting and enforcing existing and approved ICAs.³⁷ The Commission cannot, however, effectively change the terms of the ICA.³⁸

Here, the ICA addresses AT&T's provision of collocation in general. Section XI.A, entitled "Physical Collocation," states, in pertinent part, that AT&T "will provide for physical collocation of transport and termination equipment necessary for interconnection of [XO's] network facilities to [AT&T's] network or access to unbundled network elements at its Wire Center premises." More particularly, the ICA also addresses cross-connects, including the cross-connects between XO and other collocated CLECs.³⁹ However, as the parties agree, the ICA does not explicitly use or differentiate between the types of cross-connects at issue here, direct cross-connects between CLECs' collocated equipment and cross-connects between CLECs' collocated equipment via the MDF.⁴⁰

Section XI.A of the ICA further states that AT&T must provide "such collocation . . . on a non-discriminatory basis according to the rates, terms and conditions" contained in AT&T's state tariff, Schedule Cal. P.U.C. Tariff 175-T, Section 16, "except as modified below [in Subsections XI.A.1 and A.2]." AT&T reads this sentence as limiting collocation to (a) only those cross-connects between AT&T and XO, not between XO and other CLECs (in direct conflict with its own concession that collocation includes cross-connects) and (b) only those services specifically identified in the tariff.⁴¹ We reject AT&T's argument that the state tariff limits XO's right to cross-connects via the MDF.

First, as AT&T has already conceded, collocation is a broad term that includes many different types of cross-connects, including those between CLECs' collocated equipment. Second, the ICA gives XO the right to collocate and to use cross-connects. As set forth above and discussed further below, it also contains rates for cross connects (EISCCs) in (1) the Appendix Pricing Attachment A under the heading "Cross Connects to Collocation" and (2) a March 17, 2005 "Monthly Rec Rates" Attachment 1 to the ICA, both of which conform with the rates AT&T has stipulated that it has charged and is currently charging XO for cross-connects via the MDF. Accordingly, we do not interpret the incorporation of the state tariff (and its failure to set a rate for this particular type of cross-connect) as the parties' deliberate omission of one type of cross-connect, i.e., cross-connects via the MDF. Rather, we read the reference to the state tariff to mean that if the tariff sets a rate for a service provided for in the ICA, then that tariff rate applies; if it does not set a rate, then another rate applies.

AT&T's own course of conduct also supports a conclusion that the ICA includes the right to cross-connects via the MDF at TELRIC rates. Since roughly 2007 (in wire centers deemed "impaired" for dedicated intra-office transport under Section 251(c)(3)), AT&T has been providing XO with cross-connects via the MDF at a TELRIC rate for a DS3 EISCC pursuant to the ICA.⁴² That DS3 EISCC rate appears to come from either the ICA's Appendix Pricing Attachment A or the subsequent 2005 Attachment 1.

AT&T, however, contends that the term "EISCC" does not include CLEC-to-CLEC cross-connection via the MDF (or, for that matter, CLEC-to-CLEC direct cross-connection).⁴³ It is true that the ICA's EISCC definition (No. 23) appears to only refer to cross-connects between a CLEC and AT&T. Yet ICA Section XI.A.2(b) uses the term EISCC to refer to the
cross-connects "between [XO] and another party's [i.e., another CLEC's] collocated network facility in [AT&T's] Wire Center." Moreover, AT&T's argument is inconsistent with its past and current conduct, i.e., charging XO an "EISCC" rate for CLEC-to-CLEC cross-connects via the MDF.

In addition, Section 6.3 of the UNE Appendix (under the caption "Cross Connections") requires AT&T to interconnect XO's network with another collocating CLEC on AT&T's premises, without limiting those connections (i.e., cross-connects) to any particular type or method. It states, in pertinent part:

To the extent required by the FCC, [AT&T] will at its option permit [XO] to interconnect its network with that of another collocating telecommunications carrier at [AT&T's] premises and to connect its collocated equipment to the collocated equipment of another telecommunications carrier within the same premises provided that the collocated equipment is also used for interconnection with [AT&T] or for access to [AT&T's] Unbundled Network Elements. Subject to the conditions above [AT&T] will provide the connection between the equipment in the collocated spaces of two or more telecommunications carriers . . . at the requesting competitive local carriers' expense, unless [AT&T] permits one or more of the collocating telecommunications carriers to provide this connection for themselves.

AT&T argues that the phrase "at its option" allows AT&T to determine the type of cross-connect.⁴⁴ Rather, that phrase refers to AT&T's flexibility to provide the cross-connect or allow XO to construct its own cross-connect. AT&T fails to take into account the effect of the initial modifying phrase "[t]o the extent required by the FCC." In the 2001 Collocation Order, the FCC required ILECs to provide CLECs with collocation (including cross-connects) as requested by the CLEC and concluded that an ILEC need not allow collocated CLECs to install their own CLEC-to-CLEC cross-connects.⁴⁵ AT&T's second contention regarding Section 6.3-that AT&T does not have to provide XO with a CLEC-to-CLEC cross-connect (of either type) if AT&T allows XO to provide its own-also fails. AT&T represents that it offers CLECs the option of installing its own direct cross-connect, not a cross-connect via the MDF.⁴⁶ In addition, Section 6.3's second sentence states that its provisions are "subject to the conditions above," which include the FCC's requirement that ILECs provide cross-connects as requested by the CLEC, as discussed above.

Ultimately, both parties have relied on ICA rate sheets which link the TELRIC rate that AT&T has charged XO for cross-connects via the MDF ($45.68 per month) to EISCC DS3 cross-connects.⁴⁷ Since case law suggests it is reasonable to interpret an ICA based at least in part on the parties' own characterization of the provision of equipment and/or services,⁴⁸ it is reasonable here to also rely on the parties' own submission of these rate sheets to conclude the ICA contains a rate that does apply, and should be applied, to resolve this dispute.⁴⁹

In summary, we find that the terms of the ICA, read individually and as a whole, include the right to collocate, including use of cross-connects via the MDF.⁵⁰

There is no language in the ICA evidencing any intent or agreement to exclude the right to any particular type of collocation, including cross-connects via the MDF. That, in conjunction with AT&T's own conduct, supports a broad and inclusive interpretation of the ICA. The proper rate for cross-connects via the MDF that AT&T provides XO is the rate set forth in the ICA which AT&T has charged and continues to charge XO for cross-connects via the MDF in impaired wire centers, as set forth in paragraph 10 of the parties' Joint Factual Stipulation and the 2005 amendment to the parties' ICA.⁵¹

Finally, we reject the applicability of AT&T's federal tariff, as it contains no terms or rates that actually apply to the disputed service. It is irrelevant that XO originally ordered the cross-connects from that tariff since even the parties now agree and confirm that the federal tariff does not in fact address or apply to cross-connects via the MDF.⁵² Since the federal tariff does not explicitly apply, it is neither relevant nor necessary to address arguments regarding the applicability of the filed rate doctrine.

For the reasons stated above, D.11-07-032 (modifying D.10-07-005) is modified as set forth in the below Ordering Paragraphs of this Order.

¹⁹ Reh'g App. at 2-3; AT&T Petition for Modification at 4-5.

²⁰ AT&T Dec. 8 Responses at 1, 25. AT&T initially argued that cross-connects between CLECs' collocated equipment were UNEs under Section 251(c)(3) of the Act. See, e.g., Answer of AT&T to the Complaint ¶¶ 16-17, 22-23. As we stated in our original decision, D.10-07-005, we reject that argument. Cross-connects are a form of collocation under Section 251(c)(6), and Section 251(c)(3) and the FCC's orders implementing the Section 251(c)(3) unbundling obligation do not apply. D.10-07-005 at 3-4.

²¹ AT&T Dec. 8 Responses at 3-4, 8-9.

²² Id. at 10. AT&T originally argued that the ICA's UNE Appendix covered cross-connects via the MDF (see, e.g., Opening Brief of AT&T, dated February 17, 2010, at 5-6), but now asserts the UNE Appendix is inapplicable. AT&T Reply in Support of its Petition for Modification of Order Modifying Decision (D.) 10-07-005, dated September 26, 2011 (AT&T Sept. 26, 2011 Reply) at 2; AT&T Dec. 8 Responses at 26.

²³ AT&T Sept. 26, 2011 Reply at 3-4; AT&T's Opposition to XO's Petition for Modification of Order Modifying Decision (D.) 10-07-005, dated Sept. 26, 2011 at 2-3.

²⁴ AT&T Petition for Modification at 6.

²⁵ AT&T Dec. 8 Responses at 25 and Attachment D thereto (last line).

²⁶ XO Petition for Modification at 10; Reply of XO in Support of its Petition for Modification of D.11-07-032, dated Oct. 6, 2011 (XO Oct. 6, 2011 Reply), at 2-5. XO also cites to §§ XXXVIII(D) and XVI of the ICA. XO Petition for Modification at 13-14.

²⁷ XO Dec. 8 Responses at 10, 17-18, 22. See also XO Oct. 6, 2011 Reply at 5 and Attachment 1 thereto.

²⁸ XO Dec. 8 Responses at 30. See also Response of XO to AT&T's Petition for Modification of D.11-07-032, dated Sept. 15, 2011, at 9 n.34.

²⁹ XO Petition for Modification at 13-17.

³⁰ Supra n.5.

³¹ XO Petition for Modification at 14; XO Dec. 8 Responses at 22.

³² Local Competition Order, 11 FCC Rcd 154999 ¶¶ 28, 594-95; Collocation Order, 16 FCC Rcd 15435 ¶¶ 79-80, 82.

³³ Collocation Order, 16 FCC Rcd 15435 ¶ 74.

³⁴ Id. ¶ 58.

³⁵ Local Competition Order, 11 FCC Rcd 15499 ¶¶ 29, 618-629.

³⁶ 47 U.S.C. § 252(a); Local Competition Order ¶¶ 66, 618; Verizon California, Inc. v. Peevey, 462 F.3d 1142, 1151 (9th Cir. 2006)

³⁷ See Verizon Maryland, Inc. v. Global Naps, 377 F.3d 364, 366 (4th Cir. 2004); Pacific Bell v. Pac-West Telecomm, Inc., 325 F.3d 1114, 1125 (9th Cir. 2003); Collocation Order, 16 FCC Rcd 15435 ¶ 84.

³⁸ See Pacific Bell v. Pac-West, 325 F.3d at 1127.

³⁹ See, e.g., ICA UNE Appendix § 6.3; ICA § XI.A.2(b) (both discussed below). See also ICA at 7, Definition No. 18 (defining cross-connect); ICA Appendix Pricing Attachment A (containing rates for "Cross Connects to Collocation") (attached to XO's Oct. 6, 2011 Reply).

⁴⁰ See AT&T Dec. 8 Responses at 13, 20; XO Dec. 8 Responses at 2-3, 7-8, 26-28.

⁴¹ AT&T Dec. 8 Responses at 4-5.

⁴² Joint Factual Stipulation ¶ 10.

⁴³ AT&T Dec. 8 Responses at 3.

⁴⁴ AT&T Dec. 8 Responses at 10-11.

⁴⁵ Collocation Order, 16 FCC Rcd 15435 ¶¶ 2, 12, 74. Although there does not appear to be any evidence in the record to explain why the drafters of the ICA put a discussion of Section 251(c)(6) collocation (i.e. CLEC-to-CLEC cross-connects) in the "UNE" Appendix, they did, and it is reasonable to interpret the language contained therein as written.

⁴⁶ AT&T Dec. 8 Responses at 10 & n.2.

⁴⁷ Despite multiple opportunities to do so, until recently the parties have failed to create a record (by citing to and/or providing specific ICA provisions/rate sheets and/or tariff provisions) which clearly identifies a rate that applies to cross-connects via the MDF. In its October 6, 2011 Reply, XO attached a rate sheet (the ICA's Appendix Pricing Attachment A) containing an EISCC DS3 rate for cross-connects comparable to the rate AT&T has been charging, and stated that the parties updated that EISCC DS3 rate in 2005. XO October 6, 2011 Reply, Attachment 1, at 9 of 15, lines 443-455; XO Dec. 8 responses at 10, 17 & n. 45, 18, 22. In its December 8 Responses AT&T also finally submitted a 2005 amended rate sheet containing the identical price that it has been charging XO, also tied to EISCC DS3 service. AT&T Dec. 8 Responses at 25 and Attachment D thereto. This 2005 amended rate sheet on which AT&T relies appears not to be part of the excerpted ICA XO attached to its complaint. Neither the Appendix Pricing Attachment A nor the 2005 amendment identifies or limits how XO is able to use the EISCC, i.e., for interconnection with AT&T, for access to AT&T's UNEs, or to connect with another collocated CLEC. XO states that a 2007 ICA pricing update does not contain an amended rate for cross-connects via the MDF, such that the applicable rate remains the 2005 amended rate. XO Dec. 8 Responses at 17 n. 45. AT&T does not address the 2007 update. It is reasonable to conclude that if the 2007 update does not apply to cross-connects via the MDF, then only the 2005 pricing update is relevant for purposes of this determination.

⁴⁸ See, e.g., Global Naps California, Inc. v. Public Utilities Commission of the State of California, 624 F.3d 1225, 1232 (9th Cir. 2010).

⁴⁹ We note that this result is consistent with the ICA's TBD (to be determined) provision. See XO Oct. 6 Reply, Attachment 2, Appendix Pricing at 3 of 8 ("If no agreement on a rate is reached within thirty (30) days of [XO's] request for a meeting, the Parties shall propose rates for the Network Element or Collocation service in question to the Commission in an appropriate proceeding. The Parties agree that they will jointly seek an expeditious resolution and final decision from the Commission in the proceeding in which the rates in question will be set.").

⁵⁰ Even if we interpret the ICA as being silent on whether XO is entitled to cross-connects via the MDF, there is no language in the ICA indicating that the parties opted out of the Section 251(c)(6) collocation requirement, which includes the right to
cross-connects. Thus, XO's right to cross-connects via the MDF would still exist under Section 251, the Commission would have to set a rate, and that rate should be the TELRIC rate. As the ICA contains a TELRIC rate that AT&T has charged and continues to charge XO for cross-connects via the MDF in impaired wire centers (the TELRIC rate from the ICA's 2005 amendment Attachment 1, entitled "Monthly Rec Rates," for DS3 EISCCs), it would be reasonable to look to that same TELRIC rate in the ICA for all cross-connects via the MDF.

⁵¹ AT&T Dec. 8 Responses at 25 and Attachment D thereto.

⁵² AT&T Dec. 8 Responses at 21; XO Dec. 8 Responses at 28-32.