Cybertelecom Federal Internet Law & Policy An Educational Project

Interconnection Negotiation Lifecycle

The following is a bird's eye view of telephony Interconnection negotiations under the Telecommunications Act of 1996. The procedure for negotiating, arbitrating, appealing or enforcing an agreement can appear perplexing. And what follows is simply one person's reading of the Act. Varying opinions exist. Note:  The discussion below was created in the Fall of 1996 and may not be up to date.

• NEGOTIATION: The carriers attempt to negotiate an interconnection agreement. "Under the 1996 Act, incumbent local telephone companies and new entrants may voluntarily agree to terms and conditions without regard to the Commission's rules. If the parties cannot reach agreement, the Commission has put in place a baseline of terms and conditions for all arbitrated agreements between local telephone companies and new entrants." Commission Adopts Rules to Implement Local Competition Provisions of Telecommunications Act of 1996, FCC NEWSReport No. D.C. 96-75 (August 1, 1996).

Carriers may pick and choose the elements of previous agreements which they like and desire as a part of their new agreements; they are not required to pick as between agreements as a whole.  In order to achieve this, agreements must be public records and kept on file at the state telecommunications commissions.  First Order, ¶ 1317 & 1322.

Notes:  First Order, ¶ 1310 ("section 252(I) provides that a 'local exchange carrier shall make available any interconnection, service, or network element provided under an agreement . . . to which it is a party to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement.'  Thus, Congress drew a distinction between 'any interconnection, service, or network element[s] provided under an agreement,' which the statute lists individually, and agreements in their totality.  Requiring requesting carriers to elect entire agreements, instead of provisions relating to specific elements, would render as mere surplusage the words 'any interconnection, service, or network element.'")  First Order, ¶ 1296 ("A local exchange carrier shall make available any interconnection, service, or network element provided under an agreement approved under this section to which it is a party to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement.").  See also First Order, ¶ 1314.
 

• STATE REVIEW: If the carriers are able to reach an agreement, then that agreement must be submitted to the state for review.
• STATE DISPUTE RESOLUTION: If a party is dissatisfied with the agreement, it may request mediation or arbitration from the state. However, this is discretionary. There is no requirement that a party exhaust its remedies at the state level before proceeding on to other remedies. ["[I]f the parties fail to reach agreement on all issues, either party may seek arbitration before a state commission." First Order, ¶ 134.]
• APPEAL OF STATE's DECISION: A state's decision (arbitration or review) is appealable only to Federal District Court. First Order, ¶ 124. It is not reviewable by the Commission (a federal district court may decide to turn the complaint over to the Commission under the primary jurisdiction doctrine). See First Order, ¶ 128 ("We note that, in acting on a section 208 complaint, we would not be directly reviewing the state commission's decision, but rather, our review would be strictly limited to determining whether the common carrier's action or omissions were in contravention of the Communications Act."); First Order, ¶ 124 ("Federal district courts may choose to stay or dismiss proceedings brought pursuant to section 252(e)(6), and refer issues of compliance with the substantive requirements of sections 251 and 252 to the Commission under the primary jurisdiction doctrine").
• ENFORCEMENT OF AGREEMENT: A party may complain to the Commission that another party has failed to comply with the state decision. First Order, ¶ 127. But, again, what is at issue before the Commission is the actions of a party and not the decision of the State.

  After an attempt to either negotiate or arbitrate an agreement, a party may file a section 208 complaint with the Commission, alleging that the other party has failed to comply with section 251 or 252. First Order, ¶ 127. For rules and procedures related to section 208 complaints, see 47 C.F.R. Sec. 1.711 et seq. (1995). A party may also file a section 207 complaint for damages with either the Commission or a Federal District Court (choice of one forum is exclusive of the other). First Order, ¶ 128. The Commission notes, however, that "[n]othing is intended to limit the ability of persons to seek relief under the antitrust laws, other statutes, or common law." First Order, ¶ 129.  

• DECLARATORY RULING: At any time in the process any party may move the Commission for a declaratory ruling.
• COMMISSION ACTION: A state may request guidance from the Commission. First Order, ¶ 125. The Commission itself may conduct a review on its own motion. First Order, ¶ 129. Finally, if the state fails to act, the Commission shall preempt the jurisdiction of the state. First Order, ¶ 1269 et seq.; 47 U.S.C. Sec. 252(e)(5).