4. Assignment of Proceeding

Timothy Alan Simon is the assigned Commissioner and Karl Bemesderfer is the assigned Administrative Law Judge in this proceeding.

Findings of Fact

1. Comcast and Pac-West interconnect indirectly via AT&T California lines and tandem switches.

2. Since 1998, Pac-West has had on file with this Commission a tariff, Schedule Cal. CLC 1-T, that sets forth Pac-West's charges for terminating local and IntraLATA toll traffic originated by CLECs with which Pac-West has not entered into an interconnection agreement. This tariff has been amended several times since 1998.

3. AT&T California delivers all calls from Comcast customers to Pac-West customers to Pac-West in southern California.

4. AT&T California identifies the originating carrier on calls it delivers to Pac-West by assigning an Originating Carrier Number to each such call.

5. Comcast's Originating Carrier Number is 7610.

6. All calls delivered by AT&T California to Pac-West bearing Originating Carrier Number 7610 originated from Comcast customers.

7. On November 19, 2007 Pac-West and AT&T Corp. entered into a Stipulation and Settlement Agreement that included mutual general releases.

8. As of January 1, 2003, Comcast and AT&T Corp. entered into a Network Services Agreement.

9. The Network Services Agreement obligated AT&T Corp. to pay termination charges imposed on Comcast-originated traffic.

10. From at least April 2003 to October 2007, Comcast sent monthly invoices for termination of Comcast-originated calls to AT&T affiliates for payment.

11. The AT&T affiliates to whom the bills were sent did not pay the Comcast invoices.

12. When calculated at the rates set forth in the Pac-West tariff described in Finding of Fact 2, the charges due for the traffic originating on Comcast's network and terminating on Pac-West's network, for the period from April 4, 2004 to August 27, 2007, total $379,346.43.

13. The Commission is not required to award interest in situations where utilities seek to recover unpaid tariff charges pursuant to Pub. Util. Code § 737.

14. The decision whether to award late payment charges on unpaid amounts due under a utility's tariff is a matter within this Commission's equitable discretion.

Conclusions of Law

1. The Commission has jurisdiction to hear a dispute between two California CLECs regarding ISP-bound calls originated by one and terminated by the other.

2. Neither Pac-West's Intrastate Tariff nor the Commission's jurisdiction to enforce it is pre-empted by federal law.

3. Pac-West's Intrastate Tariff applies to so-called ISP-bound traffic including traffic that is disparately rated and routed.

4. A complaint to the Commission is an appropriate means to enforce Pac-West's tariff.

5. Pursuant to the terms of a Network Services Agreement entered into between Comcast and AT&T Corp. as of January 1, 2003, AT&T Corp. is responsible for paying third-party charges on Comcast's behalf.

6. Notwithstanding the payment arrangements contained in the Network Services Agreement, Comcast remains responsible for third-party charges imposed on its traffic.

7. The Release entered into between Pac-West and AT&T Corp. on November 19, 2007 bars Pac-West from recovering the unpaid termination charges for the period from April 4, 2004 to April 30, 2007 directly from AT&T Corp.

8. Pac-West may recover the unpaid termination charges from Comcast.

9. In the absence of either an interconnection agreement or any other reciprocal compensation arrangement between the parties, it is reasonable to require Comcast to compensate Pac-West for terminating ISP-bound traffic originating on Comcast's network at the minute-of-use and set-up rates set forth in the tariff described in Finding of Fact 2.

10. Under the circumstances of this case, it is not reasonable to require Comcast to pay Pac-West interest or late charges on the amounts computed pursuant to the preceding Conclusion of Law.

11. This proceeding should remain open to consider Comcast's indemnity claims against AT&T Corp.

ORDER

IT IS ORDERED that:

1. Comcast Phone of California, LLC, shall pay to Pac-West Telecomm, Inc. (a) $379,446.43 in unpaid termination charges for the period from April 6, 2004 to August 27, 2007 in accordance with Pac-West's Intrastate Tariff and (b) all termination charges for termination services provided by Pac-West to Comcast since August 27, 2007 and all future termination charges Comcast incurs under Pac-West's Intrastate tariff unless and until Comcast and Pac-West enter into an agreement superseding the Intrastate Tariff.

2. Case 07-11-015 remains open. The Administrative Law Judge shall set a prehearing conference to scope the schedule the issue and adopt a schedule for the proceeding.

This order is effective today.

Dated December 4, 2008, at San Francisco, California.

Commissioners

I reserve the right to file a concurrence.

/s/ RACHELLE B. CHONG

Commissioner

Concurrence of Commissioner Rachelle Chong

Decisions on Unpaid Call Termination Fees

Modified Presiding Officers' Decisions - Items 4 and 5

December 4, 2008

We should be closely monitoring what the FCC does in its intercarrier compensation proceeding, CC Docket 01-92. In a recent Further Notice of Proposed Rulemaking, among other issues, the FCC is seeking comment on proposals that would require states to adopt a state-wide uniform reciprocal compensation rate that would apply to all carriers.

It seems increasingly unlikely that the FCC will issue a comprehensive order on intercarrier compensation in the near future, and I would not hold my breath for FCC action. I suggest that we continue to conduct reform at the state level no matter what is going on, or not going on, at the federal level. We should open a proceeding in 2009 to review reciprocal compensation rates in California to follow up on the good work led by President Peevey in recent years reforming intrastate intercarrier compensation.

Dated December 4, 2008, at San Francisco, California.

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