XIII. Definitions
H. Access Switches
The parties dispute "Access Tandem Switch" should be defined as a switching system only for interexchange traffic, or whether it should include intraLATA toll, Section 251(b)(5) and ISP-bound traffic.
Level 3 proposes a definition, taken directly from the Newton's Telecommunications Dictionary, 14th Edition, which defines "Access Tandem Switch" in the conventional sense of the term of applying to interexchange traffic. SBC proposes defining "Access Tandem Switch" as being used to also switch intraLATA toll, Section 251(b)(5) and ISP-bound traffic.
I adopt SBC's proposed language. SBC explains that, notwithstanding the common definition of "access," its California tandem switches that handle exchange traffic also handle intraLATA toll, Section 251(b)(5) and ISP-bound traffic. Accordingly, it is only accurate to adopt SBC's proposed definition.
Level 3 complains that SBC's proposed definition differs depending on the state involved, and urges the Commission to adopt a single, consistent definition as Level 3 proposes. However, SBC's language clearly distinguishes between the states where there is a broader range of traffic switched by access tandems and states where it is not. Level 3`s interest in consistency between state interconnection agreements does not outweigh the Commission's interest in an accurate interconnection agreement for California.
Accordingly, I resolve DEF-1 by adopting SBC's proposed definition of "Access Tandem Switch," and rejecting Level 3's.
I. Local Switches
The parties' dispute over the definitions of tandem switches mirrors their dispute over whether Level 3 should be permitted to exchange all types of traffic over local interconnection trunks.
SBC proposes a list of definitions for tandem switches that limits the traffic that they may be used to switch as follows:
· "Local/Access Tandem Switch" would switch intraLATA, interexchange-carried, and Section 251(b)(5) traffic;
· "Local/IntraLATA Tandem Switch" would switch only Section 251(b)(5) and intraLATA traffic;
· "Local Only Tandem Switch" would switch only Section 251(b)(5) and ISP-bound traffic; and
· "Local Tandem" would refer collectively to all of these switches.
Level 3 opposes SBC's definitions to the extent that they would preclude Level 3 from exchanging all types of traffic over the local interconnection trunks and facilities. Level 3 also opposes SBC's definitions to the extent that they would limit ISP-bound traffic to switching over "Local Only Tandem Switches."
I adopt SBC's proposed definitions. Level 3's concern that SBC's definitions will preclude the exchange of IP-enabled services traffic over local interconnection trunks is addressed by defining "Section 251(b)(5) traffic" to include IP-enabled services traffic, as resolved at Section XIII.L. Likewise, I address Level 3's concern regarding the routing of ISP-bound traffic by requiring a modification to ITR § 5.3.1.1 to clarify that ISP-bound traffic may be routed over local interconnection trunks. (See discussion at Section IV.A.)
Accordingly, I resolve DEF-9, DEF-11, DEF-12 and DEF-14 by adopting SBC's proposed definitions.
J. Call Record
Level 3 proposes, and SBC opposes, a definition of "Call Record" to reflect its proposed language in Intercarrier Compensation Appendix § 4.1 excusing it from necessarily providing Calling Party Number information for IP-originating VoIP traffic. Consistent with the resolution of this issue with respect to Intercarrier Compensation Appendix § 4.1, I resolve DEF-2 by rejecting Level 3's proposed definition.
K. Circuit-Switched
Level 3 proposes to define "Circuit Switched Intra LATA Toll Traffic" to distinguish it from IP-enabled services traffic, in order to clarify that IP-enabled services traffic is not subject to access charges. SBC opposes defining this term because it contends the term should not appear in the agreement.
Although IP-enabled services traffic is currently Section 251(b)(5) traffic subject to reciprocal compensation and not access charges, that determination is made, and clarified in the arbitrated sections of the agreement, without reference to "circuit-switching." Level 3's proposed definition is therefore unnecessary, and I resolve DEF-3 by rejecting Level 3's proposed definition.
L. Declassified/Declassification
SBC proposes to define "Declassified" and "Declassification" to refer to network elements that were (or are) but are not currently (or will not be in the future) subject to unbundled access. SBC uses these terms in its Unbundled Network Elements Appendix and the rider to it, both of which I have adopted. Level 3 opposes these terms on the basis that the Commission should reject SBC's Unbundled Network Elements Appendix and adopt the UNE provisions of the parties' current interconnection agreement. Level 3 offers no other objection to SBC's proposed definitions.
I therefore resolve DEF-4 by adopting SBC's proposed definitions.
M. Demarcation Point
Level 3 and SBC agree to language that tracks 47 C.F.R. § 68.3 by defining "demarcation point" as "the point of demarcation and/or interconnection between the communications facilities of a provider of wireline telecommunications, and terminal equipment, protective apparatus or wiring at a subscriber's premises." Level 3 proposes, and SBC opposes, adding language providing that the demarcation point defines the boundary "for determining [the parties' respective] legal, technical and financial responsibilities."
I resolve DEF-5 by rejecting Level 3's proposed language. As SBC correctly points out, the definitions section is not the place to set out the parties' substantive responsibilities. Rather, its purpose is simply to define terms used elsewhere in the agreement where those substantive responsibilities are laid out.
N. Internet Service Provider
SBC proposes to define "Internet Service Provider (ISP)" as "an Enhanced Service Provider that provides Internet Services, and is defined in paragraph 341 of the FCC's First Report and Order in CC Docket No. 97-158." Level 3 opposes defining "ISP" by reference to this order because it is more than 20 years old. Level 3 proposes defining "ISP" as "defined consistent with the FCC in its Orders and regulations."
By defining "ISP" by reference to a particular statement in a 20-year-old FCC order ignores the fact that this area of regulation is in flux, and that the FCC may in the future change its definition. SBC's proposed language would unduly disregard any future changes in definition, and may preclude invocation of the intervening law provisions.
On the other hand, Level 3's proposed definition is unduly vague and ambiguous.
I therefore resolve DEF-7 by adopting SBC's language, up to and excluding the phrase "and is defined in paragraph 341 of the FCC's First Report and Order in CC Docket No. 97-158."
O. ISP-Bound Traffic
The parties' dispute over the definitions of "ISP-Bound Traffic" mirrors their dispute over whether the FCC's ISP Remand Order and fixed rate of $0.0007 applies to all ISP-bound traffic, or only to traffic that is local as between the ISP and the originating end user. Specifically, SBC and Level 3 dispute whether "ISP-Bound Traffic" should be defined by reference to transmittal of the traffic over the circuit-switched network, as Level 3 proposes, or by limiting it to where the ISP and the originating end user are physically located in the same local exchange area or local calling area. Consistent with my resolution of IC-5, I resolve DEF-8 by adopting SBC's proposed definition and rejecting Level 3's.
In addition, the parties shall modify this section to delete the first, undisputed sentence that reads:
"ISP-Bound Traffic" means traffic that is limited to telecommunications traffic exchanged between CLEC and SBC-13STATE in accordance with the FCC's Order on Remand Report and Order, In the Matter of Implementation of the Local Compensation Provisions in the Telecommunications Act of 1996, Intercarrier Compensation for ISP-Bound Traffic, FCC 01-131, CC Docket Nos. 96-98, 99-68 (rel. April 27, 2001) ("FCC ISP Compensation Order").
This sentence defines "ISP-Bound Traffic" strictly by reference to the obligations of the parties under the FCC's ISP Remand Order. As SBC notes with respect to DEF-5, the definitions section is not the place to set out the parties' substantive responsibilities. Rather, its purpose is simply merely to define terms used elsewhere in the agreement where those substantive responsibilities are laid out. Furthermore, defining "ISP-bound traffic" by reference to the conditions of its exchange under an interim FCC order improperly ignores the fact that this area of regulation is in flux, and may preclude parties from invoking the intervening law provisions.
P. Local Interconnection Trunk Groups
The parties' dispute over the definitions of "Local Interconnection Trunk Groups" and "Local Only Trunk Groups" mirrors their dispute over whether Level 3 should be permitted to route all traffic types over local interconnection trunks, discussed at IV.A. Specifically, SBC proposes that the agreement define "Local Interconnection Trunk Groups" as limited to carrying "Section 251(b)(5)/IntraLATA Traffic only," and that "Local Only Trunk Groups" be defined as limited to Section 251(b)(5) traffic only. Level 3 opposes defining the term "Local Interconnection Trunk Groups" altogether, and proposes that "Local Only Trunk Groups" be defined as carrying "Telecommunications Services" traffic.
Consistent with the earlier determination that Level 3 may not route interexchange traffic over local interconnection trunks, I generally adopt SBC's position. However, SBC's proposed definitions appear to exclude ISP-bound traffic from local interconnection trunks and trunk groups, contrary to the adopted terms of the Interconnection Trunking Requirements Appendix. I therefore resolve DEF-10 and DEF-13 by adopting SBC's proposed definition, except that "ISP-bound traffic" shall be included in both definitions as a traffic type that will be carried over local interconnection trunks and trunk groups.
Q. Network Interconnection Methods
The parties' dispute over the definition of "Network Interconnection Methods" echoes their dispute over whether acceptable methods should include, not only the methods specified in the agreement, but also any method "according to Applicable Law."
As discussed with respect to NIM-7, this agreement is the place to define the parties' rights, and the intervening law provision reserves the parties' rights with respect to changes of law. Accordingly, I reject Level 3's proposed insertion to DEF-15.
R. Out of Exchange Traffic
This issue concerns the definition of terms in the rejected Out of Exchange Traffic Appendix, discussed at XI. As that appendix is rejected in its entirety as beyond the scope of this interconnection agreement, there is no need for these disputed definitions to be included in the agreement.
Accordingly, with respect to DEF-16 and DEF-17, I do not adopt any definitions for "Out of Exchange LEC" or "Out of Exchange Traffic" for purposes of this interconnection agreement.
S. Section 251(b)(5) Traffic
SBC proposes throughout this agreement to use the term "Section 251(b)(5) traffic" for the dual purposes of (1) identifying traffic, other than ISP-bound traffic, that is subject to reciprocal compensation under Section 251(b)(5) as opposed to access charges, and (2) limiting the use of local interconnection trunks to either traffic that is subject to reciprocal compensation under Section 251(b)(5) or the FCC's ISP Remand Order, or interexchange traffic carried by SBC. SBC proposes to define "Section 251(b)(5) Traffic" as traffic between originating and terminating end users that are physically located in the same local exchange area or local calling area.
Level 3 states its objection to SBC's proposed definition of "Section 251(b)(5) Traffic" on the basis that it is not defined in any FCC order and will lead to future litigation. In addition, Level 3 opposes throughout this arbitration language that would subject IP-enabled services traffic to access charges, or preclude Level 3 from routing all traffic types over local interconnection trunks; SBC's proposed definition of "Section 251(b)(5) Traffic" could be interpreted to lead to that result.
I adopt SBC's approach of defining "Section 251(b)(5) Traffic" for the purpose of defining what traffic is subject to reciprocal compensation under that section, and suitable therefore for routing over interconnection trunks. This approach mirrors Section 251. Section 251(b)(5) refers to the obligation of local exchange carriers to establish reciprocal compensation arrangements for the transport and termination of "telecommunications." As the FCC has concluded, Section 251(b)(5) is limited by Section 251(g) which "carves out" certain types of telecommunications, e.g., "exchange access, information access, and exchange services for such access to interexchange carriers and information service providers." Furthermore, as SBC notes, the FCC itself uses the term "Section 251(b)(5) Traffic" for the same purpose of referring to telecommunications traffic that is subject to reciprocal compensation. (See, e.g., ISP Remand Order, ¶¶ 8, 25, 89, 98.)
However, SBC's limitations on the physical location of end users improperly excludes IP-enabled traffic from the definition of "Section 251(b)(5) Traffic." To correct for this, the definition of "Section 251(b)(5) Traffic" shall be modified as follows:
· Insert the word "either" after the word "SBCSTATE" and before the phrase "in which the ..." in the first paragraph,
· Add the following paragraph:
Or IP-enabled services traffic where, to the extent that the traffic is routed over the Public Switched Telephone Network, such routing is entirely within the local exchange area or local calling area.
I resolve DEF-18 by adopting SBC's proposed definition as modified.
T. Switched Access Service
SBC proposes to define "Switched Access Service" by reference to its switched access tariff, which generally describes such service to be subject to interstate and intrastate switched access charges. Level 3 opposes SBC's proposed definition of "Switched Access Service" to the extent that it would improperly apply access charges to IP-enabled services traffic. Level 3 proposes instead to define "Switched Access Service" as an offering that is provided under a switched access tariff.
Although its concern is valid, Level 3's proposed language is incomplete as it is essentially tautological. I resolve DEF-19 by rejecting Level 3's proposed language, and adopting SBC's proposed language, except that the following sentence is to be added to the definition of "Switched Access Service":
Switched Access Services do not include IP-enabled services traffic.
U. FX and VNXX Traffic
This issue concerns the definition of FX, virtual NXX (VNXX), and FX-type traffic. Level 3 does not address this issue in testimony or in briefs. However, it appears from the Disputed Issues Matrix that Level 3 opposes SBC's proposed definition, and proposes its own competing definition, to the extent that SBC's definition would permit FX, VNXX, or FX-like traffic to be rated based on the geographic location of the calling parties.
As discussed at Section III.C, geography matters with respect to FX, VNXX and FX-like traffic. SBC's proposed definition appears to reasonably comport with the resolution of the substantive issues in this arbitration.
Accordingly, I resolve DEF-21 by adopting SBC's proposed definitions regarding virtual foreign exchange, FX-type, and FX telephone numbers, and rejecting Level 3's proposed definition of "Virtual NXX Traffic."
IT IS ORDERED that:
1. Parties are to file and serve comments on the Draft Arbitrator's Report on January 11, 2005, and file and serve reply comments on February 8, 2005.
2. On February 15, 2005, the parties shall file and serve an entire Interconnection Agreement, for Commission approval, that conforms with the decisions of this Final Arbitrator's Report; and a statement which (a) identifies the criteria in the Act and the Commission's Rules (e.g., Rule 4.3.1, Rule 2.18, and 4.2.3 of Resolution ALJ-181), by which the negotiated and arbitrated portions pass or fail those tests; (b) states whether the negotiated and arbitrated portions
3. pass or fail those tests; and (c) states whether or not the Agreement should be approved or rejected by the Commission.
Dated December 22, 2004, at San Francisco, California.
/s/ HALLIE YACKNIN
Hallie Yacknin, Arbitrator
Administrative Law Judge
CERTIFICATE OF SERVICE
I certify that I have by mail this day served a true copy of the original attached Draft Arbitrator's Report on all parties of record in this proceeding or their attorneys of record.
Dated December 22, 2004, at San Francisco, California.
/s/ ELIZABETH LEWIS
Elizabeth Lewis
N O T I C E
Parties should notify the Process Office, Public Utilities Commission, 505 Van Ness Avenue, Room 2000, San Francisco, CA 94102, of any change of address to insure that they continue to receive documents. You must indicate the proceeding number on the service list on which your name appears.
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