Verizon Maryland Inc. v. Core Communications, Inc., Civil No. JFM-08-503.

• Decision Date: 30 June 2009
• Docket Number: Civil No. JFM-08-503.
• Citation: 631 F.Supp.2d 690
• Parties: VERIZON MARYLAND INC. v. CORE COMMUNICATIONS, INC., et al.
• Court: U.S. District Court — District of Maryland

631 F.Supp.2d 690

VERIZON MARYLAND INC. v. CORE COMMUNICATIONS, INC., et al.

Civil No. JFM-08-503.

United States District Court, D. Maryland.

June 30, 2009.

Kirsten M. Eriksson, Miles and Stockbridge PC, David Anthony Hill, Verizon Maryland Inc., Baltimore, MD, for Verizon Maryland Inc.

Louis J. Rouleau, Cathy A. Hinger, Womble Carlyle Sandridge and Rice PLLC, Joseph Paul Bowser, Arent Fox LLP, Washington, DC, Douglas R.M Nazarian, Maryland Public Service Commission, Baltimore, MD, for Maryland Public Service Commission, Steven B. Larsen, Harold D. Williams, Allen M. Freifeld and Susanne Brogan Lawrence Brenner.

MEMORANDUM

J. FREDERICK MOTZ, District Judge.

Plaintiff Verizon Maryland Inc. ("Verizon"), formerly known as Bell Atlantic-Maryland, Inc., filed this complaint for declaratory and injunctive relief, alleging that defendant Maryland Public Service Commission ("PSC") issued orders in a proceeding brought by Core Communications, Inc. ("Core") that violated the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 ("1996 Act"). Now pending is Verizon's motion for summary judgment. The issues have been fully briefed and no hearing is necessary. Local Rule 105.6.

I.

Prior to 1996, local telephone companies, also known as local exchange carriers ("LECs"), operated exclusive franchises within their local service areas. The 1996 Act sought to replace this monopoly with a competitive marketplace for local telephone services. To foster competition, the 1996 Act requires incumbent LECs ("ILECs") in local markets to make their existing facilities and networks available to potential competitors. See Verizon Maryland Inc. v. Pub. Ser v. Comm'n of Maryland, 535 U.S. 635, 638, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). Specifically, as relevant here, the ILEC must "provide . . . interconnection with" its existing network to new local carriers, referred to as Competitive LECs ("CLECs"). 47 U.S.C. § 251(c)(2). Interconnection allows callers who subscribe to a competitor's service to receive calls from, and place calls to, individuals who subscribe to the incumbent's service. Under Section 251(c)(2) of the governing statute, interconnection must be "at least equal in quality to that provided by the local exchange carrier to itself or to any subsidiary, affiliate, or any other party to which the carrier provides interconnection," permitted by the incumbent "at any technically feasible point within the carrier's network," and provided "on rates, terms, and conditions that are just, reasonable, and nondiscriminatory." Id. § 251(c)(2)(B)-(D).

To fulfill their duties under the Act, ILECs are required to enter into contracts—termed interconnection agreements ("ICAs")—with CLECs. The parties have a "duty to negotiate in good faith" the terms and conditions of the agreement. Id. § 251(c)(1). A proposed ICA must then be submitted to the state commission for its review and approval. Id. § 252(e)(1)-(2). Any party aggrieved by a "determination" of a state commission under Section 252 may bring an action in the appropriate federal district court "to determine whether the agreement or statement meets the requirements" of Sections 251 and 252. Id. § 252(e)(6).

Defendant Core, a CLEC, sought entry into the Maryland local telecommunications market, where plaintiff Verizon was the ILEC. Rather than negotiating and submitting a new ICA, Core opted-in to an existing, Commission-approved ICA between Verizon and another CLEC, then known as American Communication Services of Maryland, Inc. ("ACSI"). The ICA between Core and Verizon consisted of a short-form adoption agreement in addition to the preexisting ICA. (Pl.'s Ex. B.)

Under Definitions, the ICA states, "Interconnection is As Described in the Act, and means the connection of separate pieces of equipment or transmission facilities within, between, or among networks. The architecture of Interconnection may include, but is not limited to, Collocation Arrangements, entrance facilities, and Mid-Span Meet arrangements." (Id. § 1.33.) Section 4.0, entitled "Interconnection Pursuant to Section 251(c)(2)," contains various provisions about how the parties will interconnect, including the architecture of the facilities and equipment. (Id. § 4.0.) It states that interconnection "shall be established . . . in accordance with the standards set forth in subsection 10.2." (Id.) Subsection 10.2, in turn, provides, "Unless otherwise agreed to by the Parties, Interconnection shall be equal in quality to that provided by each of the Parties to itself or any subsidiary, affiliate, or third party." (Id. § 10.2) The ICA defines "equal in quality" as "the same or equivalent interface specifications, provisioning, installation, maintenance, testing and repair intervals for the same or equivalent services under like circumstances." (Id.)

Because Core was not yet ready to interconnect with Verizon when the ICA was adopted, the "Initial Network Implementation Schedule for Maryland" lists all dates, including "Interconnection Activation Date," as "TBD," or to be determined. (Id. at Schedule 3.0.) Similarly, the location of interconnection points ("IPs") on each carrier's network are "TBD." (Id. at Schedule 4.0.)

On July 7, 1999, Core obtained certification from the PSC as a facilities-based local exchange carrier. (Pl.'s Ex. C, at 8.) On July 27, 1999, Core requested interconnection and an activation date of September 10, 1999—forty-five days following the date of the letter. (Pl.'s Ex. D, at 1.) As required by the ICA, Core provided Verizon with forecasts of Core's trunking requirements and routing information. (Id.) The letter stated, "Please confirm in writing if the requested interconnection activation date is acceptable, or, if it is not acceptable, please propose an alternate date, together with an explanation why such alternate date is appropriate." (Id.) Verizon did not respond in writing.

The parties met on August 11, 1999, to discuss interconnection. The parties agreed to adopt the "entrance facility" model of interconnection.¹ (Pl.'s Ex. C, at 10.) Entrance facilities are "dedicated transmission facilities that connect ILEC and CLEC locations." United States Telecom Ass'n v. FCC, 359 F.3d 554, 585 (D.C.Cir.2004). An entrance facility consists of two multiplexers² with a fiber transport between them. (See Pl.'s Ex. N, at 16.) Verizon describes four major steps for provisioning initial interconnection with Core using the entrance facility method: 1) constructing the physical interoffice facility between the Verizon and Core networks, 2) provisioning DS-3 transport circuits from Verizon's Tandem to Core's Wire Center, 3) provisioning DS-1 transport circuits riding on the DS-3s, and 4) establishing interconnection trunks between Verizon's switch and Core's switch over the DS-1 transport. (Id. at 2 n. 2.)

Core requested interconnection at its Wire Center on the tenth floor of the Court Square Building. The Court Square Building, located about three blocks from Verizon's central office, is known as a "carrier hotel" because many carriers (including Verizon) have facilities there. (Pl.'s Ex. C, at 6, 7.) The Court Square Building was already "on-net" with Verizon, meaning that the building was physically connected to Verizon's central office through underground fiber feeder cables. (Id. at 7.) Certain facilities existed in the building prior to Core's interconnection request on July 27, 1999. A fiber riser was installed by Verizon to bring fiber from the basement of the Court Square Building to the tenth floor. (Id. at 8.) Verizon also installed a fiber patch panel in the Wire Center to terminate the riser cable and provide for cross connects. (Id.) In May 1999, an OC-12 multiplexer ("OC-12 Mux") was installed in the Wire Center and connected to the fiber patch panel. (Id.) In June 1999, Verizon "turned up" an existing OC-12 capacity ring ("Existing OC-12 Loop Ring") in the Wire Center, meaning that physical construction was complete, the optical signals were transmitting, and the ring was service-ready. (Id. at 7-8.) At some point, however, the OC-12 Mux was disconnected from the Existing OC-12 Loop Ring.³ (Id. at 12.)

At the August 11 meeting, Core proposed interconnection using the Existing OC-12 Loop Ring and the OC-12 Mux for interconnection, as this would eliminate the need for Verizon to build new facilities. Verizon representatives agreed that using the Existing OC-12 Loop Ring would be technically feasible. (Id. at 11.) Core then requested an interconnection activation date of September 18, 1999. (Id. at 10; Pl.'s Ex. D, at 45.) Verizon, however, indicated that the provision of entrance facilities would require twelve to fourteen weeks, rather than the forty-five day period requested by Core.⁴ (Pl.'s Ex. D, at 45.)

The parties agree that the Existing OC-12 Loop Ring had sufficient capacity to support Core's initial request for interconnection. (Pl.'s Ex. C, at 11.) However, on August 31, 1999, Verizon informed Core that as a matter of policy, Verizon would not use the Existing OC-12 Loop Ring for interconnection purposes, whether or not it was technically feasible. (Id. at 12.) Verizon stated that instead of using the existing ring, it would need to construct a new OC-12 interoffice facility ring ("New OC-12 IOF Ring"), which would be completed by November 16, 1999. (Id. at 12-13; Pl.'s Ex. A, at 5.)

Meanwhile, around August 15, 1999, Verizon had informed Core that the OC-12 Mux Core desired to use for interconnection was assigned to another customer and therefore could not be used. (Pl.'s Ex. C, at 11.) Verizon would not provide this customer's name to Core, but it was later revealed that Core itself (in an end-user retail capacity, according to Verizon) was the customer of record. (Pl.'s Ex. A, at 6.) Verizon later agreed to use this multiplexer, but stated to Core on September 7, 1999, that the OC-12 Mux would have to be "reinventoried" as a "carrier" facility in order...