4. Discussion

Roseville has the burden of showing that its request for arbitration complies with FCC and Commission requirements. The threshold requirement for a request for arbitration under Rule 7.2 and 47 C.F.R. § 51.809 is that the applicant must prove either (1) that the costs of providing interconnection to the requesting carrier are greater than the costs of providing interconnection to the carrier that originally negotiated the agreement, or (2) that the particular interconnection requested by a carrier is not technically feasible.

Roseville concedes that technical feasibility is not an issue and therefore it does not seek arbitration under that provision. Rather, Roseville seeks arbitration solely on the grounds that the costs of providing interconnection to ELI will be greater than those of providing interconnection only to Pac-West. (47 C.F.R. § 51.809(b)(1).)

By its terms, § 51.809(b)(1) applies only in a situation where due to the differing circumstances of the carrier requesting adoption, the costs of providing service to that carrier would be higher than for the original carrier. ⁵ In this case, Roseville does not argue that there are special circumstances related to the provision of service to ELI such that Roseville will incur greater costs in providing interconnection services to ELI pursuant to the Pac-West agreement than it will in providing Pac-West those same services. Roseville simply argues that its general costs of providing reciprocal compensation for ISP-bound traffic will increase if competitive local exchange carriers like ELI are allowed to adopt the agreement and its ISP compensation requirements.

Roseville's position that its costs, cumulatively, will increase as other carriers adopt the Pac-West agreement does not conform to the plain language of § 51.809(b)(1) and Rule 7.2(b)(1). Even granting that Roseville will experience a general increase in costs of this nature, such a claim regarding its costs of compliance is not grounds for application of § 51.809(b)(1) and Rule 7.2(b)(1) and does not present any issue for arbitration between these individual carriers.

Roseville also asserts that the Commission should stay the reciprocal compensation provisions of the Pac-West agreement with regard to ELI until the FCC rules further, or until the Commission issues a decision on Roseville's application for rehearing of the Pac-West agreement and in the Commission's reciprocal compensation proceeding (Rulemaking 00-02-005). Roseville argues that Commission action in any of these proceedings could "substantially revise the Commission's policy on reciprocal compensation" and that the Commission should prevent ELI from fully adopting the Pac-West agreement until these proceedings are completed.

The narrowly tailored provisions of our Rule 7.2(b) and of 47 C.F.R. § 51.809 do not provide an exception to Roseville's interconnection obligations on the grounds of regulatory developments which may or may not take place in the future. Regardless of the merits of Roseville's contentions, an arbitration under Rule 7 is not the forum in which to raise them. As we stated in the Pac-West decision (D.00-09-032):

"[U]nless and until we adopt a new policy in our rulemaking proceeding, or until the matter is otherwise decided at the federal level, the Commission's current policy requiring the payment of reciprocal compensation for ISP traffic remains in effect and will be followed here. The Commission's OIR and the FCC proceeding are the more appropriate forums in which to consider a change in policy on ISP compensation...." (D.00-09-032, slip op. at 10.)

Because Roseville has failed to make the showing required by Rule 7.2(b) and by 47 C.F.R. §51.809 for arbitration of ELI's request to adopt the interconnection agreement between Roseville and Pac-West, the motion to dismiss Roseville's application for arbitration is granted. Pursuant to Rule 7.3.2, Roseville shall honor ELI's adoption of the terms of the Pac-West agreement with Roseville in its entirety as of the date of the filing of ELI's request.

This proceeding is closed.