I. INTRODUCTION
In this Order we dispose of the application for rehearing of Decision
(D.) 08-09-027 (or "Decision") filed by Global NAPs California, Inc. ("GNAPs").
In D.08-09-027, we resolved a complaint filed by Pacific Bell Telephone Company d/b/a/AT&T California ("AT&T") against GNAPs, which sought Commission enforcement of AT&T's interconnection agreement ("ICA") with GNAPs.1 The ICA requires payment of reciprocal compensation charges, intraLATA toll or intrastate access charges, and transiting charges for interconnection and transport services AT&T provides to GNAPs.
In D.08-09-027, we determined that GNAPs had indeed breached the ICA, and owed AT&T charges in the amount of $18,589,494.17 through December 2007, plus any charges that have accrued since that time.
A timely application for rehearing was filed by GNAPs challenging the Decision on the grounds that it: (1) ignores evidence establishing that GNAPs traffic is Voice over Internet Protocol ("VoIP") traffic; (2) misstates and thus fails to apply the Enhanced Service Provider ("ESP") exemption from access charges; (3) wrongly concludes that GNAPs is bound by the terms of its ICA; (4) imposes discriminatory charges; and (5) wrongly denies GNAPs motion to set aside submission and reopen the record to take additional evidence. GNAPs also requests oral argument.2
We have carefully considered the arguments raised in the application for rehearing and are of the opinion that good cause has not been established to grant rehearing of D.08-09-027. Accordingly, GNAPs application for rehearing is denied. We also deny GNAPs request for oral argument.
1 The Telecommunications Act of 1996 ("Act"), Pub. L. No. 104-104, 110 Stat. 56, requires incumbent local exchange arriers ("ILECs" such as AT&T) to allow competitive local exchange carriers ("CLECs" such as GNAPs) to interconnect with their networks. (47 U.S.C. § 251(c)(2).) Interconnection permits customers of one local exchange carrier to make calls to, and receive calls from, customers of other local exchange carriers. The Act requires ILECs to negotiate in good faith the terms of ICAs with the CLECs. (47 U.S.C. § 251(c)(1).) The Act also authorizes the Commission to arbitrate disputed ICA issues. (47 U.S.C. § 252(b).)
The Commission approved the arbitrated ICA between AT&T and GNAPs in In the Matter of Global NAPs, Inc. (U-6449-C) Petition for Arbitration of an Interconnection Agreement with Pacific Bell Telephone Company Pursuant to Section 252(b) of the Telecommunications Act of 1996 ("Order Approving AT&T & GNAPs ICA") [D.02-06-076] (2002) __ Cal.P.U.C.3d __, 2002 Cal.PUC LEXIS 319.
2 On November 12, 2008, GNAPs filed a motion requesting that we take official notice of the Federal Communications Commission's ("FCC") Order on Remand and Report and Order and Further Notice of Proposed Rulemaking ("FCC Order and NPRM"), FCC 08-262, issued November 5, 2008. (Document available at: http://www.fcc.gov. ) According to GNAPs, the FCC Order and NPRM contains directives regarding compensation rates for VoIP and Internet Service Provider bound traffic. The Commission may take official notice of the FCC Order and NPRM pursuant to Rule 13.9 of the Commission's Rules of Practice and Procedure. (Cal. Code of Regs., tit. 20, § 13.9.). While we take notice of the FCC Order and NPRM, we find it has no bearing on the issues in this proceeding for many of the same reasons as recently articulated by the United States District Court Central District of California, in Global NAPs California, Inc. v. PUC ("GNAPs v. PUC") Case No. CV 07-04801-MMM(SSX) ("Summary Judgment Order"). In addition, GNAPs failed to establish that its traffic is VoIP or Internet Service Provider bound. The FCC's Order also does not adopt new rules, and even if it did, they would only operate prospectively. Such rules would not impact our enforcement of the existing ICA between GNAPs and AT&T.
