5. Effect of Intervening Law Provision

Sprint PCS asserts that the ICA clearly gave Sprint PCS certain rights, including the right to invoke the Intervening Law provisions of the ICA. Sprint PCS sent AT&T a letter on July 18, 2007, invoking the Intervening Law provisions of the ICA and requesting AT&T to adjust that transiting rates in accordance with the change of law.

AT&T rejected Sprint PCS' request saying that D.04-09-063 made no mention of transit rates and did not establish a transit rate for carriers. AT&T maintained that it had amended all carriers' ICAs that expressly referenced OANAD rates with the rates that were established by the Commission in the decision. According to Sprint PCS, the reason for having an Intervening Law provision is to address circumstances where the parties agree to one rate in the agreement, but that rate is subsequently modified by a court or regulatory agency. According to Sprint PCS, there can be no question that the Commission's UNE relook decision changed the TELRIC cost for the transiting interconnection service.

AT&T rebuts Sprint PCS' claim, saying that the Intervening law provision of the ICA applies only where rates, terms or conditions of the ICA have been invalidated, modified or stayed by a court, legislature or regulatory agency. Thus, to show that it is entitled to invoke Section 18.1, Sprint PCs must show that this Commission, or some other regulatory agency, court or commission, has invalidated, modified to stay the transiting rates contained in Sprint PCS' ICA.

According to AT&T, Sprint makes two attempts to prove its point, but each one fails. First, Sprint argues that the Commission's act of identifying the TELRIC rate for tandem switching automatically identified the TELRIC rate for transiting. We agree with AT&T that Sprint PCS is incorrect. Nowhere in D.04-09-063 does the Commission say that it is changing the rates for transiting or that transiting and tandem switching are the same or interchangeable.

Second, Sprint relies on D.06-08-029, the arbitration of an ICA between SBC and MCI. The Commission has repeatedly stated that an arbitration decision does not constitute binding precedent and the Commission is not bound by any provision it adopted in any prior arbitration proceeding.¹⁰ In addition, the Act makes clear that negotiated agreements under Section 251(a)(1)-which we are dealing with in this case-are not bound by such precedent. Also, we repeat our finding that pursuant to Section 252(a)(1), TELRIC rates are not required for negotiated agreements. Therefore, the fact that we found that TELRIC pricing was appropriate in the SBC/MCI arbitration, has no impact on the negotiated ICA between AT&T and Sprint PCS.

¹⁰ D.00-08-011, Application by AT&T Communications of California, Inc., et al (U5002C) for Arbitration of an Interconnection Agreement with Pacific Bell Telephone Company (U1001C) Pursuant to Section 252(b) of the Telecommunications Act of 1996, 2000 Cal. PUC LEXIS, at *44 (August 3, 2000).