The threshold issue in dispute here relates to the proper procedural vehicle to address parties' disputes. Parties disagree over whether to use the process described in D.95-12-056, Section III(D), versus that described in Section 42 of the 1999 Agreement, based on the Commercial Arbitration rules of the American Arbitration Association. It is concluded that the dispute resolution process prescribed under the 1999 Agreement is the proper vehicle to resolve the dispute raised by 01.
As its basis for denying that the provisions of the 1999 Agreement apply as the applicable basis for dispute resolution in this instance, 01 merely asserts that it "expressly does not invoke the dispute resolution procedure described in Article III, Section 42." Yet, 01 fails to explain how it can seek dispute resolution of a provision of the 1999 Agreement without invoking the dispute resolution procedure prescribed in Article III, Section 42. The language in the 1999 Agreement does not provide the latitude for either party to pick and choose unilaterally which disputed issues will be resolved through commercial arbitration and which will be resolved through other means. Instead, the 1999 Agreement language indicates that the Parties agreed to use the alternative dispute resolution procedure described in Sections 42.1 and 42.2 "as their sole remedy with respect to any controversy or claim arising out of their Agreement or its breach." (Emphasis added.) The fact is that the dispute at issue here is a "controversy or claim arising out of their Agreement or its breach." Therefore, the 1999 Agreement does not permit use of the dispute resolution process described in D.95-12-056, even though 01 may believe that private arbitration is not well suited for resolving the disputes at issue.
01 argues that the issue of compensation for delivery and receipt of ISP-bound local calls cannot be resolved simply by referring to the terms of the 1999 Agreement, but also requires interpretation and implementation of numerous facets of the FCC ISP Remand Order as well as a determination of the applicability of this Commission's requirements that all amendments and modifications be filed with and approved by this Commission. Verizon responds that private arbitration entities are particularly well equipped to handle a range of issues from the most basic contract disputes to the most complex and employ arbitrators with specific backgrounds in various industries. 01 presents nothing to refute Verizon's claims concerning the level of sophistication and expertise of private arbitration entities. Therefore, 01 provides no basis to conclude that a private arbitration entity would not be able to address competently the pertinent issues relating to interpretation of the FCC ISP Remand Order, or any other legal or regulatory matters necessary to resolve parties' disputes over Verizon's obligations to 01 under the 1999 Agreement.
Accordingly, the motion of 01 to invoke the Commission's dispute resolution process described in D.95-12-056 is denied. 01's proper recourse is to pursue dispute resolution in accordance with the process described in Section 42 of the 1999 Agreement, utilizing the Commercial Arbitration rules of the American Arbitration Association. In issuing this ruling, no prejudgment is made concerning the substantive merits of either parties' claims or arguments as to Verizon's obligations to 01 under the 1999 Agreement.
Therefore, IT IS RULED that:
1. The motion of 01 Communications, Inc. (01) to invoke the expedited dispute resolution process described in Decision 95-12-056 is denied.
2. 01's proper recourse is to pursue dispute resolution in accordance with the process described in Section 42 of its 1999 Agreement, utilizing the Commercial Arbitration rules of the American Arbitration Association.
3. In issuing this ruling, no prejudgment is made concerning the substantive merits of arguments as to parties' rights or obligations under the 1999 Agreement.
Dated December 1, 2005, at San Francisco, California.
/s/ THOMAS R. PULSIFER | ||
Thomas R. Pulsifer Administrative Law Judge |
CERTIFICATE OF SERVICE
I certify that I have by mail this day served a true copy of the original attached Administrative Law Judge's Ruling Denying Motion for Dispute Resolution Pursuant to Decision 95-12-056 Process on all parties of record in this proceeding or their attorneys of record.
Dated December 1, 2005, at San Francisco, California.
/s/ FANNIE SID |
Fannie Sid |
NOTICE
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