8. Appeal and Motion to Set Aside Submission

The Presiding Officer's Decision (POD) in this case was mailed on June 4, 2008. On July 3, 2008, GNAPs filed an appeal. On July 18, 2008, AT&T filed a response to the appeal. GNAPs asserts, as it has throughout the case, that the traffic at issue is exempt from access charges by virtue of it being VoIP traffic, and maintains that the POD therefore errs by ordering GNAPs to pay AT&T termination and transiting charges due and owing under the interconnection agreement. The POD considers and rejects GNAPs' arguments.

GNAPs moved to set aside submission to take, as additional evidence, (1) a list of GNAPs' customers in New York and California, (2) a letter from a GNAPs customer describing the nature of its traffic as "nomadic VoIP," and (3) an affidavit of James Scheltema stating that GNAPs serves the same customers in New York and California and that their traffic is of the same nature in both states. GNAPs asserts that it could not offer this evidence in a timely fashion because it did not know, until AT&T briefed the issue, that the nature of the traffic was at issue. GNAPs' assertion is without merit. The assigned Commissioner's February 4, 2008, Scoping Memo identified the physical configuration of GNAPs' traffic as a factual issue, and directed GNAPs to present evidence on the issue pursuant to the adopted schedule of the proceeding. The motion is denied.

1. GNAPs filed A.01-11-045 for arbitration of an interconnection agreement with AT&T.

2. The Commission approved the interconnection agreement in D.02-06-076 (modified by D.03-07-039, denying rehearing) and ordered the parties to enter into it.

3. GNAPs and AT&T entered into the interconnection agreement in 2003.

4. The interconnection agreement provides that traffic exchanged between the parties will be classified as either local, transit, optional calling area, intraLATA toll, or interLATA toll traffic, and specifies the charges for each.

5. The interconnection agreement specifies the different types of trunks that may be established between the parties' networks to exchange traffic, and provides that local and intraLATA toll traffic may be combined on the same trunk groups, while interLATA traffic must be transported over a trunk group separate from local and intraLATA toll traffic.

6. The interconnection agreement provides that (1) local calls that AT&T terminates to its own end-users are subject to local reciprocal compensation charges, (2) intraLATA toll calls that AT&T terminates to its own end-users are subject to the intraLATA toll or intrastate access charges specified in AT&T's intrastate access tariff, and (3) calls that AT&T transits to a third-party carrier are subject to transit charges.

7. The interconnection agreement requires GNAPs to provide AT&T with quarterly usage reports showing the percent of the traffic delivered over the combined local/intraLATA toll traffic trunks that GNAPs charges as local versus toll, or Percent Local Usage factor (PLU), for AT&T to use for billing purposes.

8. GNAPs submitted Access Service Requests to AT&T requesting combined local/intraLATA toll trunks, and representing that either 99% or 100% of the traffic would be local.

9. AT&T and GNAPs established combined local/intraLATA toll trunks to interconnect the parties' networks.

10. AT&T notified all interconnecting carriers that, in the absence of receiving usage reports, it will apply a default PLU percentage of 83% local traffic and 17% intraLATA toll traffic.

11. Beginning in or about March 2004, GNAPs has used the combined local/intraLATA toll trunks to deliver traffic to AT&T for termination to AT&T end-users and for transiting to third-party carriers.

12. GNAPs has not provided usage reports to AT&T.

13. AT&T applied the default PLU to the traffic that it terminated to its own end-user customers.

14. AT&T has billed for terminating and transiting this traffic pursuant to the interconnection agreement.

15. GNAPs has not paid any of the billed charges.

16. All of GNAPs' customers are ISPs, which are a subclass of ESPs.

17. GNAPs received all of the traffic at issue from its ISP customers.

18. There is no dispute that all of the traffic at issue involved IP at some point in its transmission.

19. GNAPs does not know whether the communication it receives from its customers is voice, data or a mix thereof, and does not know how the traffic was delivered to its ESP customers.

20. We cannot find, on the basis of this record, that the traffic at issue is VoIP traffic.

21. The evidence suggests that the traffic originated on the PSTN, not on the Internet.

22. None of the traffic at issue was delivered to the Internet.

23. AT&T originally brought this claim before a federal court, where GNAPs successfully obtained its dismissal on the ground that this Commission has exclusive jurisdiction over claims for breach of the interconnection agreement.

24. AT&T properly calculated $18,589,494.17 through the December 2007 bill, as the amount due and owed under the interconnection agreement.

1. The interconnection agreement governs the terms and conditions under which GNAPs and AT&T will interconnect their networks and exchange traffic.

2. The doctrine of judicial estoppel bars GNAPs from arguing that the Commission lacks jurisdiction over AT&T's claim.

3. The Commission has authority consistent with state and federal law to resolve interconnection disputes.

4. The use of IP-enabled services in the transport of a call does not deprive the Commission of jurisdiction to resolve interconnection disputes.

5. The FCC's ESP exemption from access charges applies only to traffic that is routed to the Internet; it does not apply to the traffic at issue here.

6. Charges for services under the interconnection agreement are contractual charges, not regulatory access charges.

7. The use of IP format in the transmission of traffic prior to its delivery to AT&T does not exempt it from charges under the interconnection agreement.

8. GNAPs should pay AT&T the claimed charges.

9. This case should be closed.

ORDER

IT IS ORDERED that:

1. Global NAPs California, Inc. shall pay to Pacific Bell Telephone Company, d/b/a AT&T California the amount of $18,589,494.17 through the December 2007 bill, plus any charges that have accrued since that time.

2. Case 07-11-018 is closed.

This order is effective today.

Dated September 18, 2008, at San Francisco, California.

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