IV. DISCUSSION
At first blush, it appears that this application for rehearing is simply a case of whether the Commission should have granted summary judgment to Cox. It is that and more. The underlying issue in this case is whether GNAPs should be required to honor its Interconnection Agreement with Cox and pay its fair share for using the PSTN, or whether it should be allowed to game the system by obfuscating the real issues and justifying its refusal to pay by misinterpreting the law.18 As D.07-01-004 pointed out, federal policy is to ensure that the cost of terminating calls on the PSTN is shared equitably among all those sending calls to the PSTN, and this includes carriers like GNAPs, which send ISP-originated calls:
As a policy matter, we believe that any service provider that sends traffic to the PSTN should be subject to similar compensation obligations, irrespective of whether the traffic originates on the PSTN, on an IP network, or on a cable network. We maintain that the cost of the PSTN should be borne equitably among those that use it in similar ways. (Emphasis supplied.)19
Under this policy, GNAPs should not be allowed to escape its obligation to pay its fair share for using the PSTN based on the pretext that it did not originate the traffic terminated by Cox. The Commission should not allow this to happen for the reasons elucidated below.
A. GNAPs' argument that the Commission must use Code of Civil Procedure Section 437(c) to dispose of the summary judgment motion has no merit.
GNAPs claims that D.07-01-004 is unlawful partly because the Commission did not follow Code of Civil Procedure Section 437(c). This statement is erroneous and without merit. D.07-01-004 states that although Rule 11.2 of the Commission's Rules of Practice and Procedure does not discuss the standards to be applied when the Commission considers a motion for summary judgment, the Commission generally follows the standard set forth in "Civil Code 437(c)."20 As GNAPs correctly noted, the Commission obviously meant CCP Section 437(c). The point is that the Commission acknowledged that it has generally followed the standard set forth in CCP Section 437(c). Under that standard, a motion for summary judgment shall be granted when the pleadings demonstrate that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Strict compliance with the procedural requirements of CCP Section 437(c) was neither expressed nor implied in D.07-01-004. The Commission is not bound by the procedural requirements of CCP Section 437(c) because it is endowed by Article XII, Section 2 of the California Constitution with the authority to establish its own rules and procedures. 21 The Commission's Rules of Practice and Procedure do not require GNAPs to be given 75 days' notice of Cox's motion, or that Cox must present a separate statement of undisputed facts, as argued by GNAPs.22 Nor is GNAPs' claim of an alleged "right" to oral argument to be evaluated under CCP Section 437(c). Rather, the Commission's specific rules addressing oral argument are controlling.
1. GNAPs Did Not Present Any Disputed Material Facts.
GNAPs' claims that the Commission improperly disregarded disputed material facts it presented in opposition to the motion for summary judgment. GNAPs states that it submitted admissible evidence disputing the following facts: 1) the calls at issue originated from GNAPs' Los Angeles switch; and 2) the calls were intrastate, intraLATA calls.23 GNAPs' allegations have no merit.
With respect to the call origination issue, GNAPs' position is that because the traffic it sent to Cox originated with Internet Service Providers ("ISPs"), the traffic is jurisdictionally interstate and GNAPs is exempt from access charges. D.07-01-004 correctly concluded that GNAPs misreads applicable law because "[t]he only relevant exemption from the access charge regime under Federal Law is for ISP-bound traffic rather than ISP-originated traffic, a conclusion we reached in our recent AT&T-MCImetro decision involving facts very similar to those in this case [citation omitted]."24 Therefore, the issue is not where the calls originate, but where they are bound. None of the calls at issue were ISP-bound.
GNAPs relies on the Masuret Declaration to dispute Cox's assertion that the calls at issue here all originate from a GNAPs switch located in Los Angeles. GNAPs asserts that "Global NAPs provides no origination dial tone services, ... the origination of the communications [at issue] did not originate from Global NAPs switch, [and] ... the communications at issue are received exclusively from [Enhanced Service Providers]...."25 This statement is neither material or relevant, nor is it a fact. As previously discussed, the only relevant exemption from access charges is for "ISP-bound" traffic, rather than "ISP-originated" traffic. Moreover, GNAPs' use of "Enhanced Service Providers" ("ESPs"), as opposed to "ISPs," is not factually accurate and has the effect of confusing the reader.26
Furthermore, for summary judgment purposes, whether or not there is a federal exemption from access charges is a legal, not a factual, question. Thus, GNAPs' submission raises no disputed factual issues. Also, in its response to GNAPs' rehearing application, Cox asserts that the origination of the calls is not a material factual dispute because GNAPs does not dispute that it sent the calls to Cox for termination to Cox end-use customers. 27
The fact is that Cox's motion for summary judgment was based on three undisputed factual assertions:
1. All the calls for which Cox has billed GNAPs are intra-LATA toll calls [footnote omitted].
2. None of the calls for which Cox has billed GNAPs are ISP-bound calls.
3. The Interconnection Agreement between Cox and GNAPs directs the party originating intra-LATA toll calls that are not ISP-bound to pay termination charges to the terminating party.28
Regarding the nature of the calls, it is undisputed that they were intrastate, intraLATA toll calls. As D.07-01-004 points out, GNAPs admitted in its answer to Cox's complaint that the only area of dispute involved intraLATA toll calls in California.29
With respect to the second factual assertion, the Commission determined that none of the calls for which GNAPs has refused to make payment were ISP-bound calls.30 GNAPs has not denied that the calls at issue were not ISP-bound; therefore, this assertion, too, is undisputed.
As to the third factual assertion that the party originating intra-LATA toll calls that are not ISP-bound must pay termination charges to the terminating party, D.07-01-004 determined that the Interconnection Agreement provides for the payment of termination charges for intra-LATA toll calls originated by one party and terminated by the other, and Cox terminated intraLATA toll calls originated by GNAPs.31 GNAPs does not deny the terms of agreement between the parties or that Cox terminated its calls.32
Therefore, GNAPs failed to meet the basic threshold for defeating a motion for summary judgment, i.e., there must be a material, factual dispute. The presence of a factual conflict will not defeat a motion for summary judgment unless the fact in dispute is a material one.33 GNAPs did not prevail because the Commission determined that there was no triable issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.
2. GNAPs is not exempt from terminating access charges.
GNAPs claims to be exempt from terminating access charges because the traffic originated with ESPs. We rejected this appellation in D. 07-01-004, and we reject it now because it has the effect of confusing the reader, among other things. "ESPs," the precursors to the 1996 Act's information service providers, offer data processing services, linking customers and computers via the telephone network.34 The more precise term is "ISPs," which is a subclass of "ESPs." An "ISP" is a company that provides access to the Internet for business and residential customers through a connection, which could be a broadband connection (cable broadband or digital subscriber line ("DSL")), or a dial-up connection. GNAPs may have chosen to describe its traffic as originating with "ESPs" because when the FCC established the access charge regime for long-distance calls in 1983, it exempted ESPs from the access charge system.35 The FCC reaffirmed this decision in 1991, and again in 1997.36 We are not dealing with ESPs here; we are dealing with intraLATA toll calls that are not ISP-bound.
GNAPs misrepresented the ISP Remand Order in its efforts to avoid compensating Cox for terminating its calls. The ISP Remand Order addressed only the question of why ISP-bound traffic should be viewed as interstate. Nowhere in the ISP Remand Order did the FCC address ISP-originated traffic, which is what GNAPs contends it transports to Cox. Since the calls are intraLATA toll traffic that is not ISP-bound, GNAPs has an obligation to pay access charges pursuant to FCC rules, this Commission's order, and the Interconnection Agreement itself.
B. The Commission did not deny GNAPs due process when it ruled on the summary judgment motion.
GNAPs alleges that the Commission denied it due process when it "expressly adopted" CCP Section 437(c) in ruling on the motion for summary judgment, and denied it the "right" to oral argument on the motion. This argument has no merit. Not only did the Commission not pledge to follow CCP Section 437(c) strictly, but oral argument is not a right under the Commission's Rules of Practice and Procedure. The California Supreme Court states as follows: "[An administrative hearing] consists of any confrontation, oral or otherwise, between an affected individual and an agency decision-maker sufficient to allow [an] individual to present his [or her] case in a meaningful manner. Citation omitted]"37 GNAPs has taken advantage of that opportunity with a hearing and a multitude of filings at the Commission.
Article XII, Section 2 of the California Constitution endows the Commission with the authority to establish its own rules and procedures. Accordingly, the Commission has its own rules pertaining to oral argument. Under the Commission's Rules of Practice and Procedure, the Commission has complete discretion to determine whether oral argument is appropriate in any given matter.
The Commission's Rules do not speak specifically to oral argument in summary judgment; however, they address oral argument in a wide variety of proceedings.38 Oral argument may be granted on rehearing, pursuant to Rule 16.3, if the Commission determines that it will materially assist the Commission in resolving the application, and the application or response raises issues of major significance for the Commission.39 GNAPs did not satisfy any of the requirements for oral argument.
GNAPs presented no evidence that it used any of the Commission's procedural vehicles to request oral argument except in this rehearing. Yet, GNAPs asserts that "[t]he ALJ, and then the Commission, exceeded the authority of any other judge hearing and ruling on a motion for summary judgment in that they denied Global NAPs the opportunity to be heard on the Motion. The Decision violates Global NAPs' right to due process."40 The question of whether the Commission exceeded its authority is a legal question for which oral argument is not required.
18 GNAPs has a history of expressing unconventional interpretations of applicable telecommunications law and regulations in order to evade paying access and other network charges. Global NAPs, Inc. v. Verizon New England, Inc., 2006 U.S. App. LEXIS 8805 (April 11, 2006) is one such case with issues similar to the matter before this Commission. GNAPs lost this case and failed to cite to it in its discussion of the law, although not required to do so. The ALJ did not appreciate such litigation tactics and warned against its repetition. (See ALJ Ruling Denying Motion to Dismiss or Stay Proceeding (filed 7/6/06), p. 4, n. 3.)
19 See D.07-01-004, p. 5, citing In the Matter of IP-Enabled Services Notice of Proposed Rulemaking, WC Docket 04-36 (March 10, 2004), ¶¶33, 61.
20 D.07-01-004, p. 3. GNAPs latches onto an obvious clerical error rather than focus on issues of substance. Indeed, GNAPs admits that "it is clear that the Commission intended to apply Code of Civil Procedure Section 437(c)." (GNAPs' Rhg. App., p. 3)
21 Article XII, Section 2 of the California Constitution provides in pertinent part that the Commission may establish its own procedures, subject to statute and due process. (Cal. Const. art XII, Sec. 2) This provision is also contained in Pub. Util. Code, Section 1701(a).
22 GNAPs reluctantly conceded that "Cox's failure to submit a separate statement, by itself, may not render the Decision unlawful." (GNAPs' Rhg. App., p. 8.)
23 GNAPs' Rhg. App., p. 4.
24 D. 07-01-004, p. 5 (emphasis in original).
25 GNAPs' Rhg App., p. 4, quoting Masuret Declaration ¶3, ¶4, and ¶5 (emphasis in original).
26 The more precise term is "ISPs," which is a subclass of "ESPs."
27 Response of Cox California Telcom, LLC to Application for Rehearing of D.07-01-004, p. 6.
28 D.07-01-004, p. 4.
29 D.07-01-004, p. 4, n. 2.
30 See D.07-01-004, p. 7, Finding of Fact No. 6.
31 See D.07-01-004, p. 7, Findings of Fact Nos. 2 and 3.
32 The obligation to pay for the termination of intraLATA toll calls is found under Section 5.7.5 of the Interconnection Agreement.
33 Angelus Chevrolet v. State of California (1981) 115 Cal.App.3d 995, 1002.
34 MCI Telcommunications Corp. v. FCC (D.C. Cir. 1995) 57 F.3d 1136, 1138.
35 In the Matter of MTS & WATS Market Structure (1983) 97 FCC.2d 682, 711-715, ¶¶ 77-83.
36 In the Matter of Amendments of Part 69 of the Commission's Rules Relating to the Creation of Access Charge Subelements for Open Network Architecture (1991) 6 FCC Rcd 4524, 4534, ¶54, and In the Matter of Access Charge Reform (1997) 12 FCC Rcd 15982, respectively.
37 See Lewis v. Superior Ct. (1999) 19 Cal.4th 1232, 1247 (emphasis in original).
38 Under the Commission's Rules of Practice and Procedure, the criteria for final oral argument vary according to the type of proceeding. Rule 11.7 provides that oral argument may occur in discovery disputes and other procedural disputes referred to a Law and Motion Administrative Law Judge for resolution. Rule 13.12 applies to oral argument in adjudicatory proceedings. Rule 13.13 applies to oral argument in ratesetting and quasi-legislative proceedings. Rule 16.13 applies to oral argument in applications for rehearing.
39 Rule 16.3, Cal.Code Regs., tit. 20, Section 16.3.
40 Global NAPs' Rhg. App., p. 9.
