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, 14^th 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 "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 the FCC's definition in this order stems from the Modified Final Judgment, which is more than 20 years old. Level 3 proposes defining "ISP" as "defined consistent with the FCC in its Orders and regulations."

The FCC's mention of the 1983 Access Charge Reconsideration Order in paragraph 341 simply notes that that order determined that ISPs should not be required to pay interstate access charges. The FCC's definition of "ISPs" is found in footnote 498 to paragraph 341, and is made entirely by reference to 47 C.F.R. § 64.702(a), which defines "enhanced service," and 47 U.S.C. § 153(20), which defines "information services;" the FCC thereupon defines "ISPs" as providers of enhanced services and information services. Level 3's contention that the FCC defined "ISP" by reference to a 20-year-old order is without merit.

Level 3's proposed definition is unreasonably vague for referring only generally to the FCC's rules and orders. Although Level 3's objection to SBC's proposed language for referencing a 20-year-old order is without merit, SBC's proposed language is also unnecessarily vague and confusing for referring to FCC language that itself refers elsewhere.

I therefore resolve DEF-7 by adopting the following language that refers directly to the basis for the FCC's definition of "ISP":

"Internet Service Provider" (ISP) is a provider of enhanced services, as that term is defined in 47 C.F.R § 64.702(a), or information services, as that term is defined in 47 U.S.C. § 153(20).

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 is unduly vague in that it references an entire order without specifying particular FCC language. Its inclusion in this term also creates undue confusion by presenting two different definitions of "ISP-bound traffic": the first sentence defines "ISP-bound traffic" by reference to an FCC order, while the second sentence offers a competing, substantive definition.

In its comments on the Draft Arbitrator's Report, SBC contends that the Commission does not have the authority to reject the sentence because, according to SBC, neither Level 3 nor SBC raised any issue with respect to the sentence. To the contrary, the parties submitted the issue of how to define "ISP-bound traffic" for arbitration. The fact that neither Level 3 nor SBC opposed this particular sentence does not remove it from arbitration. In any event, SBC's statement of the issue in the joint matrix of disputed issues states, "Should the definition of "ISP-Bound Traffic" reference the FCC's ISP Compensation Order [...]?" As discussed above, I resolve that issue in the negative.

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 IP-enabled and 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 "IP-enabled and ISP-bound traffic" shall be included in both definitions as traffic types 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

The parties' dispute over the definition of "Out of Exchange LEC" (disputed issued DEF-16) concerns whether it should reference a potential successor-in-interest to SBC as the incumbent local exchange carrier. Level 3 requests that reference in order to ensure that the obligation under the Out of Exchange Appendix survives transfer of the exchange area to a successor. SBC opposes Level 3's proposed language on the basis that it is intended to cause the Out of Exchange obligations to somehow remain with SBC instead of passing to the successor entity. I do not read Level 3's proposed language as causing, or its explanation as intending, that result. I adopt Level 3's reference to a potential successor in interest. However, I reject Level 3's reference to Section 251(h) as unnecessarily confusing, in favor of SBC's direct reference to the incumbent local exchange area. "Out of Exchange LEC" is defined as follows:

"Out of Exchange LEC" (OE-LEC) means Level 3 operating within
SBC-13STATE's or its successor in interest's incumbent local exchange area and providing telecommunications services utilizing NPA-NXXs identified to reside in a Third Party Incumbent LEC's local exchange area.

The parties' dispute over the definition of "Out of Exchange Traffic" (disputed issue DEF-17) is the same as their dispute over what traffic types are subject to reciprocal compensation, as discussed with respect to disputed issues IC-2, IC-3, and ITR-5 through ITR-9. Thus SBC opposes Level 3's language to the extent that it would include IP-enabled services traffic and transit traffic.

Consistent with the resolution of these issues and the issue of the definition of "Section 251(b)(5) Traffic" (see Part XIII.L, below), "Out of Exchange Traffic" is defined as follows:

"Out of Exchange Traffic" is defined as Section 251(b)(5) Traffic, ISP-bound traffic, transit traffic, and InterLATA Section 251(b)(5) traffic exchanged pursuant to an FCC approved or court ordered InterLATA boundary waiver, or intraLATA traffic to or from a non-SBC ILEC exchange area.

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 exclude 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 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.

In its comments on the Draft Arbitrator's Report, Level 3 points out that its proposed language defines "virtual NXX traffic" to include and not distinguish between "virtual foreign exchange" and "FX type" traffic. Although SBC's proposed definition uses and does not distinguish between the terms "Virtual FX Traffic" and "FX-type Traffic," it does not reference the additional term "virtual NXX traffic" that Level 3 proposes. In order to clarify that all of these terms are implicated by the use of any one of them, the term "Virtual NXX Traffic" shall be inserted into the first sentence of SBC's proposed definition, following a comma to be inserted after the term "Virtual Foreign Exchange (FX) Traffic."

Accordingly, with this modification, 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."

ORDER

IT IS ORDERED that 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 pass or fail those tests; and (c) states whether or not the Agreement should be approved or rejected by the Commission.

Dated February 8, 2005, at San Francisco, California.

		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 Final Arbitrator's Report on all parties of record in this proceeding or their attorneys of record.

Dated February 8, 2005, at San Francisco, California.

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.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

The Commission's policy is to schedule hearings (meetings, workshops, etc.) in locations that are accessible to people with disabilities. To verify that a particular location is accessible, call: Calendar Clerk (415) 703-1203.

If specialized accommodations for the disabled are needed, e.g., sign language interpreters, those making the arrangements must call the Public Advisor at (415) 703-2074, TTY 1-866-836-7825 or (415) 703-5282 at least three working days in advance of the event.