CoreTel Virginia, LLC v. Verizon Virginia, LLC, No. 13-1765 (4th Cir. 2014)
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This case arose from a dispute between CoreTel and Verizon regarding their respective responsibilities under an interconnection agreement (ICA), a private contract that implements duties imposed by the Telecommunications Act of 1996, 47 U.S.C. 151 et seq. Each party contended that the other improperly billed it for various services. The district court granted summary judgment in Verizon's favor on each claim. The court concluded that CoreTel was entitled to summary judgment in its favor on both its and Verizon's claims for declaratory relief relating to Verizon's facilities charges where the ICA entitled CoreTel to order entrance facilities for interconnection at TELRIC. The court remanded for consideration of CoreTel's claim for injunctive relief. The court affirmed the district court's grant of summary judgment on CoreTel's facilities claims where the facilities CoreTel provided were not entrance facilities under ICA 1.25 and CoreTel pointed to no provision of the ICA that authorized it to simply levy facilities charges for any piece of equipment that handled Verizon's traffic. The court affirmed the district court's grant of summary judgment in Verizon's favor on CoreTel's reciprocal compensation claims. Finally, the court affirmed the district court's grant of summary judgment in Verizon's favor on Verizon's switched-access claims.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1765 CORETEL VIRGINIA, LLC, Plaintiff Appellant, v. VERIZON VIRGINIA, LLC; VERIZON SOUTH, INC.; MCIMETRO ACCESS TRANSMISSION SERVICES, LLC; MCI COMMUNICATIONS SERVICES, INC.; VERIZON BUSINESS GLOBAL LLC; BELL ATLANTIC COMMUNICATIONS, INC., d/b/a Verizon Long Distance, Defendants Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:12-cv-00741-CMH-TCB) Argued: January 30, 2014 Decided: May 13, 2014 Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges. Affirmed in part, reversed in part, and remanded with instructions by published opinion. Judge Duncan wrote the opinion, in which Judge Wilkinson joined. Judge Niemeyer wrote an opinion concurring in part and dissenting in part. ARGUED: Edward Jay Tolchin, OFFIT KURMAN, P.C., Tysons Corner, Virginia, for Appellant. Scott H. Angstreich, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for Appellees. ON BRIEF: Andrew M. Hetherington, KELLOGG, HUBER, HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for Appellees. 2 DUNCAN, Circuit Judge: Two telecommunications carriers, CoreTel Virginia, LLC and Verizon Virginia, LLC, dispute their respective responsibilities under their interconnection agreement ( ICA ), a contract which governs how the carriers connect their networks and exchange data. for Each party contends that the other improperly billed it various services. The district court judgment in Verizon s favor on each claim. granted summary For the reasons that follow, we vacate the district court s decision with respect to Verizon s facilities claims, but affirm as to the others. Ironically, in pursuit of its preferred result, the dissent does exactly what it accuses the majority of doing. As we explain in greater detail below, the dissent interprets the ICA as the dissent imagines it should have been written, and not as it was. With no textual support, and in contravention of the cardinal rule that a contract must be interpreted as a whole, giving effect to all its terms, the dissent elevates § 11 to an isolated and independent status, renders superfluous the only provision altogether that specifically ignores § 2.1, deals with interconnection, which explicitly provides and that headings are to have no substantive effect on the agreement s meaning. 3 I. The CoreTel/Verizon ICA 1 at issue here is a private contract that implements duties imposed by the Telecommunications Act of 1996, Pub. L. 104 104, 110 Stat. 56, codified at 47 U.S.C. § 151 et seq. We therefore begin with a brief discussion of the relevant provisions of the Telecommunications Act and the key provisions of the parties ICA before turning to the procedural history before us. A. The Telecommunications Act seeks to foster competition in the telecommunications market by reducing the competitive advantages enjoyed by the telecommunications carriers, known as incumbent carriers, that enjoyed a monopoly in the market at the time the statute was enacted. The Act requires incumbent carriers networks to entrants, prohibitive share known cost their physical as competing of building carriers, a new with to network. new market mitigate This the appeal implicates two of the duties imposed on incumbent carriers under 47 U.S.C. § 251. First, § 251(c)(3) allows a competing carrier to lease components of an incumbent carrier s physical network for any 1 There are actually two Verizon/CoreTel ICAs. Because they are identical in every term relevant here, we will treat them as a single ICA. 4 purpose would if an impair services. incumbent s the failure competing to provide carrier s these ability to 47 U.S.C. §§ 251(c)(3), 251(d)(2)(B). elements provide An incumbent carrier must provide these network elements at cost-based rates, known as TELRIC, as opposed to higher tariff rates. 2 47 U.S.C. §§ 251(c)(3), 252(d)(1); 47 C.F.R. § 51.505(b) (2010); see also Implementation of the Local Competition Provisions in the Telecommunications Act of 1996 [ Local Competition Order ], 11 F.C.C. 15499, ¶ 29 (1996). These network elements also must be unbundled, meaning that they must be offered individually, and not only as part of a broader package of services. 47 U.S.C. § 251(c)(3); Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2258 (2011); Local Competition Order, 11 F.C.C. 15499, ¶ 27. Second, § 251(c)(2) promotes interconnection, the physical link between two telecommunications networks that allows each carrier s customers to call the other s. The FCC has interpreted § 251(c)(2) to require, among other things, that an incumbent carrier lease a competing 2 carrier entrance Carriers generally may only charge rates under tariffs filed with state and federal regulatory agencies but, in certain cases the Telecommunications Act requires a carrier to charge an even lower, TELRIC rate. See Verizon Commc'ns, Inc. v. FCC., 535 U.S. 467, 478, 489 (2002); AT&T Commc'ns of Va., Inc. v. Bell Atl.-Va., Inc., 197 F.3d 663, 674 (4th Cir. 1999). 5 facilities required for interconnection at TELRIC. 3 See Unbundled Access to Network Elements [ Remand Order ], 20 F.C.C. 2533, ¶ 140 (2005); Review of the Section 251 Unbundling Obligations of Incumbent Local Exch. Carriers [ Triennial Review Order ], 18 F.C.C. 16978, ¶ 366 (2003); see also Talk Am., 131 S. Ct. at 2261. Until 2003, the FCC had also interpreted § 251(c)(3) to require incumbent carriers to provide all entrance facilities at TELRIC. Review However, Order and the FCC Remand reversed Order. It course in concluded its Triennial that because entrance facilities are less costly to build, are more widely available from alternative providers, and have greater revenue potential, an incumbent carrier s failure to provide access to these facilities would not impair the viability of competing carriers. Remand Order, 20 F.C.C. 2533, ¶ 138, 141 (2005). 4 The 3 An entrance facility is the physical infrastructure, such as wires or cables, typically used to connect one network with another ( interconnection ) or to transport data to and from equipment that a carrier has installed on another carrier s premises ( backhauling ). Talk Am., 131 S. Ct. at 2258 59. Backhauling occurs when a competitive [carrier] uses an entrance facility to transport traffic from a leased portion of an incumbent network to the competitor s own facilities. Backhauling does not involve the exchange of traffic between incumbent and competitive networks. Id. at 2259 n.2. 4 The FCC initially concluded, in the Triennial Review Order, that entrance facilities are not covered by § 251(c)(3) because they are not network elements. 18 F.C.C. 16978, ¶ 366. Competitive carriers challenged this interpretation, and (Continued) 6 FCC determined, provide therefore, entrance facilities rates under § 251(c)(3). Significantly, carriers that duties on incumbent an carriers unbundled need basis at not TELRIC Id. at ¶ 137. however, under § the FCC did 251(c)(2), specifically governs interconnection. not the alter incumbent provision Id. at ¶ 140. that Therefore, while an incumbent carrier no longer has a general obligation to provide entrance facilities at TELRIC under § 251(c)(3), it remains obligated to provide entrance facilities at TELRIC when they are used for interconnection under § 251(c)(2). See Talk Am., 131 S. Ct. at 2264-65; Remand Order, 20 F.C.C. 1533, ¶ 140; Triennial Review Order, 18 F.C.C. 16978, ¶¶ 365, 366. B. With this regulatory framework in mind, we now turn to the ICA between Verizon, competing carrier. because the enforceable. § 251 an incumbent carrier, and CoreTel, a A close examination of the ICA is necessary duties discussed above are not See 47 U.S.C. §§ 251(c)(1), 252(a)(1). directly Instead, these duties only apply if they are incorporated into an ICA. See Core Commc ns, Inc. v. SBC Commc ns Inc., 18 F.C.C. 7568, ¶ the United States Court of Appeals for the District of Columbia Circuit remanded the matter to the FCC, observing that the Commission's reasoning appears to have little or no footing in the statutory definition. U.S. Telecom Ass'n v. FCC, 359 F.3d 554, 586 (D.C. Cir. 2004). In response, the FCC promulgated the Remand Order. 20 F.C.C. 2533, ¶ 4. 7 32 (2003), vacated on other grounds by SBC Commc ns Inc. v. FCC, 407 F.3d 1223 (D.C. Cir. 2005). The interplay between the ICA and the relevant statutory provisions is further complicated by the fact that the Verizon/CoreTel ICA is an adoption of an existing ICA under 47 U.S.C. § 252(i). Because the original ICA took effect before the FCC reinterpreted § 251(c)(3) in its Triennial Review Order and Remand Order, the adoption agreement that accompanies the CoreTel/Verizon ICA contains a provision meant to clarify Verizon s duties in light of the changed regulatory backdrop. See ICA Adoption Agreement § 1.B, J.A. 366. Section 1.B of the adoption agreement provides that, adoption of the [ICA] does not include adoption of any provision imposing an unbundling obligation on Verizon that no longer applies to Verizon under [the Triennial Review Order and Remand Order]. J.A. 366. To aid in our analysis, we will discuss four provisions of the ICA. Section 4 addresses interconnection, § 11 addresses the leasing of network elements, § 5.7 sets out a compensation regime for local cross-network calls, and Exhibit A lists the rates that apply to the agreement. We now address each briefly in turn. ICA addresses networks. § 4, the Interconnection physical J.A. 216. and Physical interconnection of the Architecture, parties two This section provides that CoreTel may 8 specify one of three physical methods to connect with Verizon at an agreed-upon interconnection point. ICA § 4.3.1, J.A. 218. One of the methods allows CoreTel to lease an entrance facility from Verizon. 5 Id. CoreTel may request any of the listed interconnection methods at the rates and charges, set forth in this Agreement, in any applicable Tariff(s), subsequently agreed to between the parties. 218. or as may be ICA § 4.3.3, J.A. The ICA provides Verizon analogous rights to interconnect with CoreTel. ICA elements, § ICA § 4.3.4, J.A. 218. 11, Unbundled including Access, entrance enumerates facilities, provide to CoreTel on an unbundled basis. section elements, primarily consists expressed in of highly a detailed technical parameters under which they may be ordered. 6 that the network Verizon will J.A. 240 66. This list terms, of network and the Id. ICA § 5.7, Reciprocal Compensation and other Intercarrier Compensation Arrangements, provides a distinct billing regime 5 The other options allow CoreTel to interconnect through collocation --that is, by installing its equipment inside of Verizon s facility. ICA § 4.3.1, J.A. 218. One option allows CoreTel to use its own collocated equipment, and the other allows CoreTel to use a third-party s collocated equipment. Id. 6 ICA § 11 does not, for example, contain a listing for entrance facilities. Instead, it lists the various, specific types of physical wires and cables that Verizon is to make available, such as 2-Wire HDSL Compatible Loop or 4-Wire DS1compatible Loop. ICA §§ 11.3.5, 11.3.7, J.A. 243. 9 for local calls terminating originating within CoreTel s within network Verizon s (i.e., network and calls from local Verizon customers to CoreTel customers), and vice versa. 222. J.A. These calls are billed per minute of usage as reciprocal compensation by the recipient carrier. See ICA §§ 1.60, 1.60a, 5.7.1, J.A. 212, 222 23; ICA Exhibit A §§ A.I, B.I, J.A. 322, 353. Finally, network ICA Exhibit elements and A lists includes TELRIC rates rates for for leasing facilities under the heading Unbundled Transport. A § A.II.C, J.A. 324. compensation. various entrance ICA Exhibit It also includes rates for reciprocal ICA Exhibit A §§ A.I, B.I, J.A. 322, 353. C. Soon after the parties agreed to their ICA, a dispute arose regarding the interconnection CoreTel pay continued rates CoreTel entrance tariff until facilities. rates 2012 is and when terminate CoreTel s service. CoreTel Verizon required to Verizon refused. finally pay for insisted that This dispute threatened to CoreTel brought suit seeking to enjoin Verizon s threatened service termination. Verizon filed various counterclaims, and CoreTel amended its complaint to add still more claims. claims and The district court ultimately divided these counterclaims into four broad categories: (1) Verizon s facilities claims relating to its bills to CoreTel for 10 the entrance facilities CoreTel leased; (2) CoreTel s facilities claims relating to its bills to Verizon for the entrance facilities that CoreTel contends Verizon leased; (3) Verizon s reciprocal compensation claims; and (4) Verizon s claims that CoreTel improperly billed it for services under CoreTel s tariffs. The district court granted summary judgment in Verizon s favor on each issue, but on liability only. question of damages for trial. It reserved the The parties then jointly moved for a final judgment reflecting the stipulated damages that are required by [the district court s summary judgment] ruling to expedite an appeal. court entered the Joint Motion, J.A. 1500. agreed-to final judgment, and The district this appeal followed. II. Each of the issues discussed below was resolved on motions for summary judgment. Accordingly, we review each under the same familiar standard: We review the district court s order granting summary judgment de novo, viewing the facts in the light most favorable to, and drawing all reasonable inferences in favor of, the nonmoving party. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. 11 Garofolo v. Donald B. Heslep Assocs., Inc., 405 F.3d 194, 198-99 (4th Cir. 2005) (internal citations omitted). While we must draw all reasonable inferences in the light most favorable to the nonmoving party, it is ultimately the nonmovant s burden to persuade us that there is indeed a dispute of material fact. Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). It must provide more than a scintilla of merely evidence--and not conclusory allegations or speculation--upon which a jury could properly find in its favor. Id. Like written any and, other when contract, its terms [w]e are interpret clear ICA] as unambiguous, and [an we construe the contract according to its plain meaning. Cent. Tel. Co. of Va. v. Sprint Commc'ns Co. of Va., Inc., 715 F.3d 501, 517 (4th Cir. 2013) (internal quotation marks and citation omitted). Because an ICA is a private agreement on the one hand, and an instrument of federal regulation on the other, we are guided relevant in our federal interpretation precedent. Id. by at both 517 contract n.20. law When and [t]he contractual duty at issue . . . is a duty imposed by the Act itself . . . the resolution of a claim regarding the scope of that statutory duty . . . depends on the interpretation and application of federal law. Core Commc'ns, Inc. v. Verizon Md. LLC, ___ F.3d ____, 2014 WL 868618 (4th Cir. Mar. 6, 2014). 12 III. On appeal, CoreTel challenges the district court s grant of summary judgment in Verizon s favor on all claims. For clarity, we adopt the district court s categorization of the claims, and address each category in turn. A. We first address Verizon s claims applicable rates for entrance facilities. relating to the Verizon contends that § 1.B of the Adoption Agreement eliminated its obligation under the ICA to purpose. As provide a entrance result, facilities Verizon has at TELRIC for any billed CoreTel for its interconnection entrance facilities at tariff rates since the adoption of the ICA. CoreTel has refused to pay those rates, maintaining that the ICA permits it to pay the lower TELRIC rates. We agree with the dissent that this is, ultimately, a contract dispute and, as with any contract, we interpret the ICA according to its terms. "cardinal principle of But the contract dissent ignores construction . . both . the that a document should be read to give effect to all its provisions," Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 (1995), and the fundamental rule that, when the written terms of an agreement are clear, evidence 13 of the parties' intent "is utterly inadmissible." Moran v. Prather, 90 U.S. 492, 501 (1874). As discussed above, ICA § 4.3 is the only provision of the ICA that deals specifically with interconnection. Within that section, § 4.3.1 authorizes CoreTel to order an Entrance Facility . . . leased from Verizon for interconnection. 218. J.A. ICA § 4.3.3 then provides that CoreTel may order this entrance facility at the rates and charges, set forth in this Agreement, in any applicable Tariff(s), or subsequently agreed to between the parties. the ICA network lists, in elements turn, and entrance facilities. the schedule services, of including Id. as may be Exhibit A of rates for TELRIC various rates ICA Exhibit A § A.II.C, J.A. 324. for Though Verizon contends otherwise, the most natural reading of these provisions is that the TELRIC rates listed at Exhibit A § A.II.C. are the rates and charges, set forth in this Agreement referred to in ICA § 4.3.3. Verizon advances an alternative interpretation of the ICA. ICA § 4.3, it contends, does not give rise to any independent obligation to make entrance facilities available at TELRIC but, instead, simply indicates that entrance facilities may be leased under § 11 for interconnection. In Verizon s view, § 1.B of the adoption its provide agreement entrance eliminates facilities at 14 obligation TELRIC for any under § 11 purpose. to It contends that entrance facilities are therefore unavailable at those rates under § 4.3. Simply put, no provision of the ICA indicates that § 4.3 relies upon § 11 in the way Verizon suggests. As explained above, ICA § 4.3 imposes an obligation on Verizon, independent of § 11, to offer entrance facilities at the TELRIC rates listed in Exhibit A. 7 Therefore we need not consider the impact of § 1.B of the Adoption Agreement on the services available under § 11. Section 1.B of the Adoption Agreement does not affect our analysis of ICA § 4.3 because Verizon s duties under ICA § 4.3 arise under the specific interconnection provisions of 47 U.S.C. § 251(c)(2). These duties were unaltered by the Triennial Review Order and the Remand Order, the FCC orders incorporated by the Adoption Agreement. We further note that our conclusion in no way renders the entrance facility provisions of ICA § 11 superfluous. ICA § 11 permitted CoreTel to purchase entrance facilities for purposes not addressed by ICA § 4.3, such as backhauling. See Talk Am., 131 S. Ct. at 2259. 7 Verizon suggests that, because rates for entrance facilities are listed in Exhibit A only under the heading Unbundled Transport, they are available only to entrance facilities ordered under § 11, Unbundled Access. J.A. 240, 322. The ICA, however, specifically provides that headings are not intended to be a part of or to affect the meaning of the agreement. ICA § 2.1, J.A. 214-15. 15 Verizon s and the dissent s arguments drafters intent are similarly unavailing. based on the ICA Verizon argues, and the dissent accepts, that the drafters of the ICA would never have suspected that 47 U.S.C. § 251(c)(2) imposed a duty, independent of § 251(c)(3), to provide entrance facilities for interconnection at TELRIC because the FCC first explicitly articulated that obligation after the ICA was drafted, in the Triennial reason to Review Order. think the Thus, Verizon drafters argues, intended to there write is no such an obligation into the ICA. This contention fails for at least two fundamental reasons. First, like any contract, an ICA is interpreted according to its written terms. Cent. Tel. Co. of Va., 715 F.3d at 517. If a contract s language is clear, we may not choose to supplement it with evidence of the drafters intent. 501. As explained above, we find the See Moran, 90 U.S. at language of the ICA sufficiently clear to establish that Verizon must offer entrance facilities at TELRIC for interconnection, without resort to the intent of its drafters. Second, we find Verizon s speculation about the drafters subjective views unpersuasive. Contrary to Verizon s and the dissent s contentions, there are indications that the drafters of the ICA regarded § 251(c)(2) as imposing an independent duty to provide entrance facilities for interconnection at cost-based 16 rates. 4.3. The most obvious indication is the very existence of § This section would have been curiously redundant if § 251(c)(3) and ICA § 11 already required that entrance facilities be provided at cost-based 251(c)(2) did not. rates for interconnection but § Moreover, this obligation flows clearly from the text of the Telecommunications Act itself and longstanding FCC regulations. Section 251(c)(2) requires incumbent carriers to provide interconnection at any technically feasible point within the carrier s network, and the FCC had long interpreted the carrier s network to include its entrance facilities. See Talk Am., 131 S. Ct. at 2261; Local Competition Order, 11 F.C.C. 15499, ¶ 26. Therefore, [s]ince the enactment of the 1996 Act, the FCC has consistently construed [47 U.S.C. 251(c)(2)] to mean that an incumbent may be required to provide facilities to a competitor in order to link the two carriers networks. Brief for the United States as Amicus Curiae Supporting Petitioners at 22, Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S.Ct. 2254 (2011) (Nos. 10-313, 10-329). We therefore conclude that the CoreTel/Verizon ICA entitles CoreTel TELRIC. 8 to order entrance facilities for interconnection at Accordingly, CoreTel was entitled to summary judgment 8 We are perplexed by the comfort taken by the dissent in distinguishing entrance facilities as such from interconnection (Continued) 17 in its favor on both its and Verizon s claims for declaratory relief relating to Verizon s facilities charges. the district court for consideration of We remand to CoreTel s claim for injunctive relief and Verizon s damages claim in light of this conclusion. B. We next turn to CoreTel s facilities claims. After CoreTel initiated this case, CoreTel submitted 42 new bills--totaling more than $1.7 million--to beginning in 2009. Verizon for facilities charges These charges, CoreTel contends, are for trunk ports and multiplexers 9 used to handle calls delivered by Verizon to CoreTel. CoreTel concedes that Verizon provided its own means of reaching CoreTel s switch. But it contends that the ports and multiplexers that it provided on its side of the interconnection point qualify as entrance facilities and, as a service, as though the ICA did not specifically link the two by allowing CoreTel to interconnect via entrance facilities. 9 A trunk port is a physical port in a switch. See, e.g., Access Charge Reform for Incumbent Local Exch. Carriers Subject to Rate-of-Return Regulation, 13 F.C.C. 14238, ¶ 49 (1998). A switch is [t]he critical piece of telephone network equipment that . . . connect[s] a call from any customer s line to any other customer s line. Stuart M. Benjamin et al., Telecommunications law and Policy 952 (3d ed. 2012). Multiplexers encode multiple calls so that they may be transmitted on the same wire (and the reverse: extracting a single call from the encoded stream of multiple multiplexed calls). See, e.g., Worldcom, 17 F.C.C. 27039, ¶ 228 (2002). 18 accordingly, may be billed to Verizon under ICA §§ 1.25 and 4.3.5. 10 We agree with Verizon that the multiplexing and trunk ports at issue are not entrance facilities under the ICA. ICA § 4.3.5 therefore provides no basis for CoreTel s facilities charges. As it is defined in the ICA, an entrance facility is a facility connecting and, crucially, lying between the interconnecting carrier s premises and the other party s central office. ICA multiplexers office, not premises. § 1.25, CoreTel between J.A. 208. provided lay CoreTel s But the within central trunk ports CoreTel s office and and central Verizon s Thus, Verizon s facilities, not CoreTel s, spanned the distance between Verizon s premises and CoreTel s central office. Accordingly, the facilities CoreTel provided were not entrance facilities under ICA § 1.25. 11 CoreTel also contends that it was entitled to bill Verizon for its use of these facilities because they were necessary to 10 CoreTel supports its claim with documents that, it contends, reflect orders from Verizon for these facilities. As we explain below, CoreTel was not entitled to bill Verizon for these facilities regardless of whether Verizon submitted orders for them. 11 There is no merit to CoreTel s related contention that Verizon breached the ICA by failing to order an entrance facility. The ICA does not require Verizon to order an entrance facility for interconnection but merely provides that it has the sole right and discretion to do so. ICA § 4.3.4, J.A. 208. 19 the use of Verizon s self-provisioned facilities. But CoreTel points to no provision of the ICA that authorizes CoreTel to simply levy facilities charges for any piece of equipment that handles Verizon s traffic. Instead, the ICA provides that CoreTel is to be compensated for the use of these facilities, on its side of the interconnection point, exclusively under the rubric of reciprocal compensation. We therefore affirm the district court s grant of summary judgment on CoreTel s facilities claims. C. We next address Verizon s reciprocal compensation claims. As discussed above, when a local call is generated on one party s network and terminates on the other network, the party on whose network the call terminates may bill the originating party for 5.7.1, reciprocal J.A. 212, compensation. 222 23. See However, ICA the §§ ICA 1.60, 1.60a, exempts two categories of traffic from this scheme: third-party traffic and interLATA traffic. 12 See ICA § 5.7.2(a)-(c), J.A. 223. 12 Third-party traffic is traffic originated by a third carrier, not a party to the ICA, and merely delivered to the terminating party by way of the other party s network. See ICA § 5.2.1(a)-(b), J.A. 223. Thus, if there were a third carrier, Carrier X that also interconnected with Verizon s network, Carrier X s customers might be able to call CoreTel s customers by way of Verizon s network. Such calls would constitute thirdparty traffic with respect to Verizon and CoreTel. InterLATA traffic is traffic generated outside the local calling area, (Continued) 20 Verizon claims that CoreTel violated these provisions by charging it interLATA calls. Instead, CoreTel reciprocal reciprocal compensation CoreTel argues compensation does that not for contest Verizon charges for third-party a this should call and allegation. have when to pay it does not provide EMI data for it, data CoreTel claims is needed to properly categorize every call. However, neither the ICA nor the FCC order on which CoreTel seeks to rely, Cavalier Telephone LLC, 18 F.C.C. 25887 (2003), support this conclusion. Simply put, there is no provision of the ICA that requires Verizon to provide EMI data for every call delivered over Telephone is arbitration the not order trunk at issue. controlling. under 47 U.S.C. In Cavalier § addition, Telephone 252(e)(5) Cavalier was relating to an a separate interconnection agreement between Verizon and Cavalier Telephone. It required only that a provision be inserted into that particular ICA regarding Verizon s duty to provide EMI data to Cavalier Telephone, not that all carriers provide EMI data independent of the terms of their ICAs. CoreTel s argument would frustrate See Id. ¶ 40. the regulatory Adopting approach articulated by the FCC in its Core Commc'ns order by allowing commonly known as long distance calls. See SBC Commc'ns Inc. v. FCC, 138 F.3d 410, 412 n.1 (D.C. Cir. 1998). 21 carriers to enforce § 251 duties not embodied in their own ICAs. See Core Commc'ns, Inc., 18 F.C.C. 7568, ¶ 32. 13 We therefore affirm the district court s grant of summary judgment in Verizon s favor on CoreTel s reciprocal compensation claims. D. We now address Verizon s claims that billed it for services under its tariffs. CoreTel improperly Verizon contends that it is entitled to recoup, under the filed-rate doctrine, amounts that it paid to CoreTel for end-office switched access because the description inaccurate. 14 of that service in CoreTel s tariff was The filed-rate doctrine requires that, to charge for services under a tariff, a carrier must provide its services in exactly the way the carrier describes them in that tariff. Bryan v. BellSouth Commc'ns, Inc., 377 F.3d 424, 429 (4th Cir. 2004); Brown v. MCI WorldCom Network Servs., Inc., 277 F.3d 1166, 1170 (9th Cir. 2002). 15 13 We conclude that CoreTel s remaining arguments relate only to damages and are foreclosed by the parties stipulated judgment. See J.A. 1518 19. 14 Neither party makes clear which switched-access rate category CoreTel applied in levying the contested charges. See FCC Tariff No. 3, § 3.3, J.A. 474; Va. SCC Tariff No. 3, § 3.3, J.A. 555. The parties appear to agree, however, that end-office switching is the relevant category. See Br. at 54, Op. Br. at 52-53. 15 The parties provide no authority to establish that Virginia applies the filed-rate doctrine to its state tariffs. (Continued) 22 CoreTel s state and federal tariffs provide that CoreTel s end-office switching service will include terminations in the end office of end user lines. FCC Tariff No. 3, § 3.3.2, J.A. 474; Va. SCC Tariff No. 3, § 3.3.1(C), J.A. 555. held that established this tariff meaning: a language a specific and transmission physical carries The FCC has facility that provides a point-to-point connection between a customer premises and a telephone company office. AT&T Corp. v. YMax Comm. Corp. [ YMax ], 26 F.C.C. 5742, ¶ 40 (2011). To provide terminations in the end office of end user lines, a carrier must provide . . . physical transmission facilities that establish point-topoint connections between the premises of Called/Calling Parties and [the carrier s] equipment. YMax, 26 F.C.C. 5742, ¶ 37, 41. The undisputed evidence establishes that CoreTel does not provide the physical infrastructure over which delivered from CoreTel s premises to its customers. calls are Instead, as in YMax, CoreTel converts incoming calls into a data stream once they reach its office and then delivers these calls to its customers over the public internet. See YMax, 26 F.C.C. 5742, ¶ 41; J.A. 390(K), (Q)-(R), (T)-(W). This evidence makes clear CoreTel, however, does not contend otherwise. We therefore conclude that CoreTel has waived this argument and proceed with our analysis assuming, without deciding, that Virginia does indeed follow the filed-rate doctrine. 23 that CoreTel has not deployed its own physical facilities to connect it to its customers and, accordingly, does not provide terminations in the end office of end user lines as required by its tariffs. It is no mere technicality that the language of CoreTel s tariff requires End-office charges recover switching in justified any by the tangible that CoreTel charges carrier s the need substantial connections itself are among tariff, to allow a 40. the facilities. highest that is exchange required themselves throughout their service territory. the price local investment between provide to and recurring ordinarily carriers construct their to the customers YMax, 26 F.C.C., 5742, ¶ A carrier that finds a way to deliver incoming calls to its customers without building physical connections to each of them has far less infrastructure investment to recoup. CoreTel argues in the alternative that its tariffs, unlike those in YMax, explicitly permit it to charge for switchedaccess service provided using IP technology. No. 3, § 1, J.A. 433. But this language See FCC Tariff only appears CoreTel s general definition of switched-access service. in Id. The language interpreted in Ymax, discussed above, appears in CoreTel s more specific definition of the particular type of switched access service at issue, end-office switched access. Id. at § 3.3.2, J.A. 474. The specific governs the general. 24 See RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012). The language of CoreTel s end-office switching service does not permit that specific tariff rate to be applied when CoreTel delivers calls to customers over the public Internet rather than using a physical facility owed by CoreTel. 16 We therefore affirm the district court s grant of summary judgment in Verizon s favor on Verizon s switched-access claims. IV. For the reasons above, the judgment of the district court is AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS. 16 Contrary to CoreTel s contention, a subsequent FCC regulation that incorporates this sort of IP-based termination into a definition of switched exchange access services does not alter our interpretation of CoreTel s tariff. See 47 C.F.R. § 61.26(a)(3)(ii) (2012). This regulation merely defines the term for the purposes of determining what tariffs will be subject to regulation as switched-access tariffs. It does not mandate a definition of switched access as the term is used in a switched-access tariffs, much less one that vitiates the descriptions of narrower switched-access rate categories. 25 NIEMEYER, Circuit Judge, concurring in part and dissenting in part: This is a straightforward contract dispute between two telecommunications companies, CoreTel and Verizon, over the fees each agreed to pay the other in interconnecting their networks. When Verizon pressed CoreTel to pay over $880,000 in past-due amounts for entrance facilities that CoreTel leased from Verizon, CoreTel commenced this action. While each party has disputed various amounts payable to the other, the principal dispute, on which I disagree with the majority, is whether CoreTel agreed to pay Verizon a tariff rate or a lower facilities cost-based for the rate purpose for of lease of Verizon s interconnection. entrance Reading the contract as a whole and in context, I conclude that it clearly required CoreTel to pay tariff rates, as the district court also concluded. I respectfully submit that the majority has rewritten this private agreement to bring it in line with what CoreTel might have been able to obtain through negotiations when it signed the contract, based on changing interpretations of the Telecommunications Act of 1996, which regulates such agreements. That is, it focuses on what CoreTel could have demanded under the law, not on what CoreTel actually agreed to accept when it executed the written contract. No one contends that the written 26 contract was or is unenforceable or not in compliance with the Telecommunications Act. Indeed, the Telecommunications Act itself allows the parties to negotiate the rates and fees to be paid for connecting networks. See 47 U.S.C. § 252. Thus, I would enforce the contract according to its terms and affirm the judgment of the district court. I. Verizon (referring collectively to Verizon Virginia LLC and Verizon South ( incumbent Inc.) LEC ) is that an has incumbent been local providing exchange telephone carrier exchange services throughout Virginia since before the enactment of the Telecommunications Act of 1996. In enacting that Act, Congress sought to introduce competition in the telecommunications market by lowering the barriers to entry for would-be competitors. this end, networks the with Act any requires incumbent competitive LECs local to share exchange To their carrier ( competitive LEC ) and allow the competitive LEC (1) to lease from the incumbent LEC unbundled network elements (i.e., a la carte network elements enabling the competitive LEC to create its own network without having to build every element from scratch, Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2258 (2011)) and (2) to interconnect with the incumbent LEC s network. 27 These obligations are codified in two statutory provisions. Section 251(c)(3) of the 1996 Act requires incumbent LECs to provide competitive LECs with nondiscriminatory network elements on an unbundled basis. (emphasis added). access to 47 U.S.C. § 251(c)(3) And, in a similar vein, § 251(c)(2) requires an incumbent LEC to provide, for the facilities and equipment of any with requesting the local transmission and exchange access. unbundled network telecommunications exchange routing carrier s of carrier, network telephone interconnection . . . the service exchange for and Id. § 251(c)(2) (emphasis added). elements and interconnection, For such the incumbent LEC may only charge rates, terms, and conditions that are just, reasonable, and nondiscriminatory. Id. §§ 251(c)(3). But the Act makes Telecommunications 251(c)(2)(D), clear that those rates, terms, and conditions are subject to negotiation by the parties. CoreTel Verizon, See id. Virginia, serves § 252(a). LLC, customers is in a competitive Virginia. LEC When it that, like requested unbundled network elements and interconnection from Verizon, the parties entered into an agreement on November 16, 2004 ( 2004 Adoption Agreement ), which adopted the terms and conditions of an earlier, Verizon and Agreement ). 2002 Cox arbitrated Virginia interconnection Telcom, Inc. agreement ( 2002 between Interconnection The 2004 Adoption Agreement incorporated all the 28 terms and conditions of the 2002 Interconnection Agreement with several modifications, including a modification that the 2004 Adoption Agreement [did] not include adoption of any provision [in the 2002 Interconnection Agreement] imposing an unbundling obligation on Verizon because, as the 2004 Adoption Agreement explained, that obligation no longer applied to Verizon as a result of a 2003 FCC order, In re Review of Section 251 Unbundling Obligations of Incumbent Local Exch. Carriers ( 2003 Triennial Order ), 18 FCC Rcd. 16978 (2003), and subsequent related decisions. With respect to the entrance facilities that are at issue in this CoreTel case, to the 2002 interconnect Interconnection through, Agreement among other authorized options, an Entrance Facility . . . leased from Verizon . . . in accordance with . . . terms and conditions, including without limitation, rates and charges set forth [1] in this Agreement, [2] in any applicable Tariff(s), or [3] as may be subsequently agreed to between the Parties. 4.3.3. 2002 Interconnection Agreement, §§ 4.3.1, The rates and charges set forth in this Agreement were those described in Exhibit A, entitled Detailed Schedule of Itemized Charges. Exhibit A included a category of rates called Unbundled Transport, under which it specified rates for Entrance Facilities, as are at issue here. And the terms for unbundled transport were set forth in § 11 of the Agreement. 29 The parties agree that Exhibit A s rates and charges were costbased. Under the terms of the 2004 Adoption Agreement, however, Verizon s unbundling obligations were eliminated, leading Verizon to bill CoreTel for entrance facilities not as unbundled elements under the cost-based rate in Exhibit A, but as entrance facilities under Verizon s tariff rates. Although Verizon thus billed CoreTel each month over the course of some eight years for entrance facilities at tariff rates, CoreTel maintained that it should only have been charged cost-based rates and refused even to pay those rates, making only a single payment of $591.95 in February 2006. By the time of this litigation, it had run up a bill of over $880,000, based on Verizon s billings at tariff rates. When Verizon sent CoreTel notice of default and threatened to terminate service, CoreTel commenced this action. While the parties have fought over various amounts owed, the main issue presented to us on appeal is whether the 2002 Interconnection Agreement, as modified by the 2004 Adoption Agreement, entitled CoreTel to pay only cost-based rates for entrance facilities for the purpose of interconnection instead of the tariff rates that Verizon billed. The district court concluded that the 2002 Interconnection Agreement did not give CoreTel a right to lease entrance facilities for interconnection at cost-based rates, even though 30 CoreTel could have insisted on such rates when the 2004 Adoption Agreement was executed. Despite this legal right, the district court noted that CoreTel was bound by the terms of the contract to which it actually agreed. The court thus entered judgment in favor of Verizon. II. Based on the contract as written, I agree with the district court and conclude that CoreTel was required to pay tariff rates for entrance facilities, as Verizon billed it. The structure of the obligations between the parties is readily apparent from the agreement taken as a whole. Section 4.3.1 of the 2002 Interconnection Agreement authorized CoreTel to specify any of three different methods by which to connect with Verizon s Facility. network, including through an Entrance And § 4.3.3 provided that the rates and charges for such facilities were as (1) set forth in this Agreement, (2) set forth . . . in any applicable Tariff(s), or (3) as may be subsequently agreed to between the Parties. But critically, § 4.3.3 did not directly refer to any rates. In fact, the only rates for Agreement, unbundled transmission entrance were facilities referenced access. facilities actually in § 11, set forth which governed Section 11 addressed and provided that 31 in the only interoffice Verizon shall provide [CoreTel] with dedicated local transport, common local transport in conjunction unbundled interoffice with unbundled transmission Agreement, § 11.6 (emphasis added). cost-based rates for and other 2002 Interconnection And part II of Exhibit A unbundled elements, cost-based rate for Entrance Facilities. II.C. switching, facilities, services in accordance with Exhibit A. listed local including a Id. Exhibit A, part No other part of Exhibit A mentioned entrance facilities; they were listed only under Unbundled Transport. In short, the 2002 Interconnection Agreement provided that entrance facilities were to be billed either at tariff rates or, if leased forth as in charges Thus, unbundled Exhibit set under A. Those forth the elements, in 2002 the at rates 2002 Agreement, cost-based were the rates set rates only as and Interconnection if charges Agreement. for entrance facilities were not payable in accordance with Exhibit A, they were only payable at tariff rates. The 2002 Interconnection Agreement s provisions allowing for purchase of unbundled network elements at cost-based rates were, at the 251(c)(3), provide rate. which any unbundled time (in required requesting network 2002), necessitated Verizon, competitive elements at a as an U.S.C. § incumbent LEC, to such CoreTel, LEC, reasonable, by 47 as nondiscriminatory And that rate was established by the FCC, in interpreting 32 § 251(c)(3), to be its cost-based TELRIC rate (standing for Total Element Long-Run Incremental Costs) -- a rate based on the hypothetical efficient local construction network and operation conceivable. GTE of South, the Inc. most v. Morrison, 199 F.3d 733, 747 (4th Cir. 1999). After the 2002 Interconnection Agreement was executed, however, the law regarding § 251(c)(3) s unbundling requirements changed. The FCC, in its 2003 Triennial Order, interpreted § 251(c)(3) not to require incumbents to provide competitive LECs with entrance facilities as unbundled network elements at costbased rates. Instead, the FCC concluded that entrance facilities must be provided at cost-based rates only for the limited purpose of interconnection: We conclude that our previous definition [of § 251(c)(3)] was overly broad. As we explain in this Part, competitive LECs often use transmission links including unbundled transport connecting incumbent LEC switches or wire centers in order to carry traffic to and from its end users. . . . Unlike the facilities that incumbent LECs explicitly must make available for section 251(c)(2) interconnection, we find that the Act does not require incumbent LECs to unbundle transmission facilities connecting incumbent LEC networks to competitive LEC networks for the purpose of backhauling traffic. In reaching this determination we note that, to the extent that requesting carriers need facilities in order to interconnect with the [incumbent LEC s] network, section 251(c)(2) of the Act expressly provides for this and we do not alter the Commission s interpretation of this obligation. 33 2003 Triennial Order, 18 FCC Rcd. ¶ 365, at 17203-04 (alterations in original) (emphasis added) (footnotes omitted) (internal quotation marks omitted). The Supreme Court has since embraced that Order, stating that entrance facilities must be leased at cost-based rates for the purpose of interconnection only. See Talk America, 131 S. Ct. at 2258-60. The parties contracted in eliminating were 2004. any aware of these Accordingly, unbundling developments they obligation in included their when they a provision 2004 Adoption Agreement: For avoidance of doubt, adoption of the Terms does not include adoption of any provision imposing an unbundling obligation on Verizon that no longer applies to Verizon under the [2003 Triennial Order and related case law]. 2004 Adoption Agreement, § 1.B. reason of that language, It is incontrovertible that, by CoreTel was not entitled to lease entrance facilities as unbundled network elements pursuant to § 251(c)(3). Indeed, CoreTel notes in its briefing that it never ordered [an unbundled network element], period. elimination unbundled of the elements unbundling were obligation, rendered And with the the inapplicable, rates including for the rate for Entrance Facilities. But Agreement CoreTel contends nonetheless that required that the 2002 Verizon Interconnection provide entrance facilities under § 251(c)(2) at the cost-based rates in Exhibit 34 A. It argues, and the majority accepts, that § 4.3.3 of the 2002 Interconnection Agreement explicitly provided for interconnection at the rates set forth in this Agreement and that those rates were the cost-based rates provided in Exhibit A, even though the rates in Exhibit A were specifically for unbundled specify elements. leases whether of 251(c)(3) Verizon entrance (its Under CoreTel s had to facilities right to as which view, did not interconnection provide via unbundled was § 4.3.3 elements abrogated under under the § 2004 Adoption Agreement) or for purposes of interconnection only, as under § 251(c)(2). Thus, it argues, its rights to purchase entrance facilities for interconnection were not affected by the 2004 Adoption Agreement, which only eliminated Verizon s unbundling obligation under § 251(c)(3). This argument, however, ignores both the explicit language of the 2002 Interconnection Agreement and the 2004 Adoption Agreement, as well as the underlying litigation that led to the 2002 Agreement. provided Agreement for As pointed out above, the only rates expressly entrance were rates facilities for in unbundled the 2002 Interconnection facilities. And when Verizon s unbundling obligation was eliminated, so too were the corresponding rates for unbundled elements. Thus, the only other rates available for entrance facilities were tariff rates. 35 Just as indicative of this point is the history of the litigation leading to the 2002 Interconnection Agreement. That Agreement, as well as similar agreements involving Verizon, was created as a result of an FCC arbitration Worldcom, Inc., 17 FCC Rcd. 27039 (2002). order. In re And paragraphs 210 through 217 of that order described the dispute between Verizon and Cox (as well as other competitive LECs) as to Interconnection Transport, with the competitive LECs asserting that such network interconnection rates, competitive and LECs had Verizon had to to be arguing purchase provided that Cox entrance at and unbundled the other facilities transport for interconnection from its access tariffs. and ¶ 210, at 27142 (emphasis added). Id. These paragraphs of the FCC order described the provision of interconnection exclusively in the context of the purchase of unbundled elements pursuant to § 251(c)(3). See id. ¶ 215 & n.716, at 27144. discussion was competitive there LECs any having reference the right to Nowhere in this Cox to or purchase the other entrance facilities for the limited purpose of interconnection pursuant to § 251(c)(2). Entrance facilities were instead only discussed in the order as unbundled network elements. See id. ¶¶ 210- 217, at 27142-46. The FCC s reasoning, which is based exclusively on § 251(c)(3), is clearly what gave rise to § 4.3.1 of the 2002 36 Interconnection Agreement. The FCC order defined the proper rates at which Cox and other involved competitive LECs could order [e]ntrance [i]nterconnection. nearly identical [f]acilities and transport Id. ¶ 217, at 27145. to § 4.3.1 of the for This language is 2002 Interconnection Agreement, which allowed Cox to specify an entrance facility and transport as its interconnection method. is clear that § 4.3.3 of the 2002 Based on this, it Interconnection Agreement provided for the purchase of entrance facilities as unbundled network elements, and the obligation to provide unbundled network elements at cost-based rates was eventually removed from the contract through the 2004 Adoption Agreement. This interpretation is also supported by Exhibit A itself. All of the cost-based rates in Exhibit A for entrance facilities were listed under the heading Unbundled Transport. Yet CoreTel now wants to apply those rates to the purchase of entrance unbundled. facilities that it explicitly claims were not It fails to recognize that Exhibit A s rates for unbundled elements were removed from the Agreement through the 2004 Adoption Agreement, and they were never applicable entrance facilities except as an unbundled element. to And absent any Exhibit A rate for entrance facilities, the only rates given by the 2002 Interconnection Agreement for entrance facilities were tariff rates. See 2002 Interconnection Agreement, § 4.3.3. 37 There is a reason why the 2002 Interconnection Agreement did not contain special rates for entrance facilities provided solely for interconnection. Before the FCC s 2003 Triennial Order, the general understanding was that incumbent LECs had no obligation under § 251(c)(2) to provide entrance facilities at cost-based rates. interconnection -- That a section service, not was a limited facility. to Entrance facilities were always provided as unbundled network elements under § 251(c)(3). This was rational, as it allowed the competitive LECs the greatest flexibility in using the entrance facilities. explicitly America, This affirmed to which interpretation. pre-2003 by the the understanding FCC Supreme in its Court of amicus deferred the law was brief in Talk as an agency That brief stated: The FCC s interconnection rules, which were adopted in 1996, do not expressly require incumbents to provide entrance facilities to satisfy their interconnection obligations under Section 251(c)(2). That is because, until 2003 -- when the FCC eliminated unbundled access to entrance facilities in the Triennial Review Order -- a competitive LEC typically would elect to order a cost-priced entrance facility under Section 251(c)(3) since an unbundled network element can be used more expansively than the same facility provided solely for interconnection under Section 251(c)(2). Only after the FCC eliminated access to entrance facilities as unbundled network elements did it have occasion to clarify, in the Triennial Review Order and the Triennial Review Remand Order, that Section 251(c)(2) gives competitive LECs a right of access to such facilities for interconnection at cost-based rates. 38 Brief for the United States as Amicus Curiae Supporting Petitioners, at 22 n.6, Talk America, 131 S. Ct. 2254 (Nos. 10313, 10-329) (emphasis added) (citations omitted). Thus, because § 251(c)(2) was never understood in 2002 to require the provision of entrance facilities, only interconnection as a service, the majority has no support for reading the 2002 Interconnection Agreement now to include such an obligation on Verizon. Instead, the drafting parties uniformly treated entrance facilities in the only way known at the time -- 251(c)(3). as unbundled elements to be provided under § And they included provisions in § 11.6 and Exhibit A allowing for the leasing of entrance facilities as such. CoreTel points to § 27.1 of the 2002 Interconnection Agreement to suggest that Verizon s obligations changed with the 2003 Triennial Order. That paragraph provided: Each Party shall remain in compliance with [a]pplicable . . . federal, state, and local laws, rules and regulations in the course of performing this Agreement. Each Party shall promptly notify the other Party in writing of any governmental action that suspends, cancels, withdraws, limits, or otherwise materially affects its ability to perform its obligations hereunder. But CoreTel can point to no change in the law that materially affect[ed] either party s ability to perform its obligations under the Agreement. The Telecommunications Act always provided that the rates to be paid to an incumbent LEC were subject to 39 negotiation, even as the Act requires reasonable and nondiscriminatory. that any rates be See 47 U.S.C. § 252(a), (d). Moreover, CoreTel s reading of § 27.1 cannot be squared with other provisions of the 2002 Interconnection Agreement. For example, § 27.3 -- which required the parties to negotiate in good faith to incorporate changes in the law -- would be rendered superfluous under CoreTel s reading of § 27.1. Finally, CoreTel Interconnection argues Agreement did that not even explicitly if the allow 2002 for its leasing of entrance facilities at the cost-based rates listed in Exhibit A, the 2004 Adoption Agreement effectively incorporated the FCC s 2003 Triennial Order into the contract to allow it to do so. the This claim, however, finds no support in the language of 2004 does Adoption not include Agreement. That adoption of the Agreement stated provisions that it imposing an unbundling obligation that no longer applies after the 2003 Triennial Order. This is a limitation on the terms of the contract, not an addition to it. If no § 251(c)(2) cost-based pricing duty can be found in the 2002 Interconnection Agreement, the 2004 Adoption Agreement does not add one. Indeed, it adds nothing the at requirements all. in Rather, § 11 of it the strikes 2002 out Interconnection unbundling Agreement because those provisions related to obligations that no longer 40 appl[ied] following the 2003 Triennial Order, just as the 2004 Adoption Agreement explicitly stated. If CoreTel had Interconnection wanted Agreement to as change the modified terms by the of 2004 the 2002 Adoption Agreement, it could have done so at any point under § 27.3. Indeed, it could have sought Verizon in 2004 rather than an entirely agreeing to drafted prior to the 2003 Triennial Order. new adopt Agreement one with that was But CoreTel did none of these things, and thus it is bound by the language of the 2002 Interconnection Agreement as modified by the 2004 Adoption Agreement. See In re Core Commc ns, Inc., 18 FCC Rcd. 7568, 7582 § 32 (2003) (holding that a party to an Interconnection Agreement cannot rely upon the general section 251 duties to circumvent the terms of its agreement ). In sum, based on the language of the 2002 Interconnection Agreement and the 2004 Adoption Agreement, as well as the context of those Agreements, I cannot conclude that CoreTel is now entitled entrance to pay facilities only for cost-based rates interconnection. for its Rather, lease of as the Agreements provide, it is required to pay for those entrance facilities at tariff rates, the only other rate provided for in the Agreements. I would accordingly affirm the judgment of the district court in all respects. 41
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