2. Background
On September 7, 2000, the Commission approved an arbitrated agreement between Roseville and Pac-West Telecomm, Inc. (Pac-West). Pursuant to Commission policy, the agreement required payment of reciprocal compensation by Roseville for Internet service provider (ISP) calls originating on Roseville's network and delivered to Pac-West for termination. Pac-West submitted its executed agreement to the Telecommunications Division on September 20, 2000, by advice letter. 1
On October 6, 2000, ELI filed an advice letter pursuant to Rule 7.1 of the Commission's interconnection rules (Resolution ALJ-181), exercising its right to adopt the Pac-West agreement with Roseville in its entirety. 2 On October 10, 2000, Roseville filed an application for rehearing of the Commission's decision approving the Pac-West agreement. On October 23, 2000, Roseville filed its request for arbitration of the interconnection agreement with ELI.
In its request for arbitration, Roseville does not dispute ELI's right to interconnect with Roseville for exchange of traffic. In fact, Roseville has been interconnected with ELI for exchange of traffic since October 1996 on a bill-and-keep basis. In a bill-and-keep arrangement, there is no reciprocal compensation, and each party bears its own costs of terminating calls that originated with the other.
Roseville, however, seeks to have the Commission prohibit ELI from adopting that portion of the Pac-West agreement providing for reciprocal compensation for ISP traffic. Instead, Roseville would have the Commission compel ELI to accept a bill-and-keep arrangement for this traffic.
ELI moved to dismiss Roseville's request for arbitration on November 9, 2000. 3 Roseville filed its opposition to the motion on November 27, 2000, and ELI, with the permission of the arbitrator/administrative law judge, filed a reply on November 30, 2000. At an Initial Arbitration Meeting conducted on December 1, 2000, the parties agreed that they would waive the nine-month deadline for a decision in the arbitration4 so that the Commission first could consider the motion to dismiss.
1 Pac-West Advice Letter No. 79 (September 20, 2000). 2 Section 252(i) of the Telecommunications Act of 1996 provides that an incumbent local exchange carrier must "make available any interconnection, service, or network element provided under an agreement approved under this section...to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement." (47 U.S.C. § 252(i).) Rule 7.1 of Resolution ALJ-181 implements this provision, authorizing a competitive local exchange carrier to adopt by advice letter either individual provisions of an approved interconnection agreement or the agreement in its entirety. 3 ELI filed a motion to dismiss or, in the alternative, ELI's response to the request for arbitration. Under Rule 2.1(f) of the Rules of Practice and Procedure, a motion to dismiss and a response to a pleading arguably should have been filed as two separate pleadings. In the interest of efficiency, and pursuant to Rule 87, we will waive that requirement as to ELI's combined pleading and accept the pleading as a motion to dismiss. 4 Pursuant to § 252(b)(1) of the Telecommunications Act, a party to interconnection negotiations may petition a state commission for arbitration during the period from the 135th day to the 160th day after the date on which the parties commenced negotiations under § 251 of the Act. Under § 252(b)(4)(C) of the Act, a state commission is to conclude an arbitration proceeding not later than nine months after the date on which the parties commenced negotiations. The parties agree that a reasonable interpretation of these provisions would require the Commission to conclude the arbitration by February 10, 2001.
