                              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.    Each party contends that the other improperly billed it

for    various    services.       The     district     court    granted      summary

judgment in Verizon’s favor on each claim.               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    that    specifically       deals   with    interconnection,            and

altogether       ignores    § 2.1,      which   explicitly          provides    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    to       share     their    physical          networks    with     new    market

entrants,      known     as     “competing              carriers,”    to     mitigate    the

prohibitive      cost     of    building        a       new   network.        This    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    if    an   incumbent’s      failure        to   provide   these     elements

would     impair      the   competing       carrier’s        ability     to     provide

services.       47 U.S.C. §§ 251(c)(3), 251(d)(2)(B).                   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      carrier        “entrance


     2
       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.       However,     the    FCC    reversed     course    in    its   Triennial

Review    Order      and   Remand      Order.    It    concluded       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,    therefore,         that    incumbent       carriers       need    not

provide   entrance   facilities         on     an   unbundled      basis       at   TELRIC

rates under § 251(c)(3).          Id. at ¶ 137.

      Significantly,      however,      the     FCC   did   not     alter      incumbent

carriers’   duties        under     §    251(c)(2),         the     provision         that

specifically governs interconnection.                 Id. at ¶ 140.         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,     an     incumbent         carrier,     and     CoreTel,     a

competing carrier.        A close examination of the ICA is necessary

because   the   §   251    duties       discussed       above     are    not    directly

enforceable.    See 47 U.S.C. §§ 251(c)(1), 252(a)(1).                          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     §    4,    “Interconnection     and    Physical        Architecture,”

addresses    the       physical    interconnection      of    the    parties’   two

networks.        J.A. 216.        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),       or    as    may   be

subsequently agreed to between the parties.”                         ICA § 4.3.3, J.A.

218.       The ICA provides Verizon analogous rights to interconnect

with CoreTel.         ICA § 4.3.4, J.A. 218.

       ICA     §     11,   “Unbundled        Access,”       enumerates          the    network

elements,          including      entrance        facilities,       that     Verizon        will

provide to CoreTel on an unbundled basis.                           J.A. 240–66.            This

section       primarily         consists     of     a    detailed     list      of     network

elements,          expressed      in    highly          technical     terms,          and    the

parameters under which they may be ordered. 6                       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 DS1-
compatible Loop.” ICA §§ 11.3.5, 11.3.7, J.A. 243.


                                              9
for    local     calls       originating       within      Verizon’s       network   and

terminating      within       CoreTel’s      network     (i.e.,    local    calls    from

Verizon customers to CoreTel customers), and vice versa.                             J.A.

222.     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,        ICA   Exhibit    A    lists     TELRIC     rates    for    various

network     elements         and    includes      rates     for    leasing       entrance

facilities under the heading “Unbundled Transport.”                         ICA Exhibit

A § A.II.C, J.A. 324.               It also includes rates for reciprocal

compensation.          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     rates      CoreTel       is      required     to     pay    for

interconnection          entrance      facilities.         Verizon     insisted      that

CoreTel    pay    tariff       rates   and    CoreTel     refused.        This    dispute

continued       until        2012   when     Verizon      finally      threatened      to

terminate CoreTel’s service.                 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.             The district court ultimately divided these

claims    and     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.                          It reserved the

question of damages for trial.                   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.           Joint Motion, J.A. 1500.                    The district

court    entered   the     agreed-to    final          judgment,    and    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     evidence--and          not      merely        conclusory         allegations    or

speculation--upon which a jury could properly find in its favor.

Id.

       Like     any    other       contract,      “[w]e    interpret      [an   ICA]   as

written    and,       when    its    terms     are    clear      and    unambiguous,   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    in    our     interpretation         by    both    contract    law    and

relevant      federal       precedent.       Id.     at    517   n.20.      When   “[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      relating          to    the

applicable rates for entrance facilities.                     Verizon contends that

§ 1.B of the Adoption Agreement eliminated its obligation under

the    ICA    to     provide    entrance      facilities        at    TELRIC        for   any

purpose.       As     a    result,    Verizon     has   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.      But     the    dissent       ignores     both     the

"cardinal      principle       of    contract    construction          .    .   .    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    of    the     parties'        intent    "is



                                           13
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.                                      J.A.

218.      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      as     may        be

subsequently agreed to between the parties.”                            Id.     Exhibit A of

the    ICA   lists,     in    turn,    the     schedule          of    rates     for     various

network      elements     and       services,       including           TELRIC        rates    for

entrance facilities.            ICA Exhibit A § A.II.C, J.A. 324.                         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      agreement       eliminates       its     obligation             under     § 11       to

provide      entrance    facilities       at       TELRIC    for       any     purpose.            It

                                              14
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      based       on   the      ICA

drafters’ intent are similarly unavailing.                            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      Review    Order.            Thus,    Verizon       argues,      there        is    no

reason    to    think        the        drafters    intended          to    write       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.                           See Moran, 90 U.S. at

501.     As    explained       above,       we     find    the    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.      The most obvious indication is the very existence of §

4.3.       This section would have been curiously redundant if §

251(c)(3) and ICA § 11 already required that entrance facilities

be   provided     at     cost-based   rates   for   interconnection   but    §

251(c)(2) did not.         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     to   order    entrance    facilities    for   interconnection   at

TELRIC. 8    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.                  We remand to

the    district     court   for    consideration    of    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   Verizon     for    facilities   charges

beginning in 2009.           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     §   1.25,    J.A.    208.      But    the    trunk    ports    and

multiplexers       CoreTel     provided       lay   within       CoreTel’s    central

office,     not    “between”     CoreTel’s     central     office    and     Verizon’s

premises.         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     reciprocal     compensation.        See    ICA    §§    1.60,   1.60a,

5.7.1,     J.A.   212,     222–23.        However,      the    ICA    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 third-
party 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     reciprocal          compensation              for     third-party         and

interLATA    calls.         CoreTel      does     not       contest       this    allegation.

Instead,     CoreTel      argues      that        Verizon          should       have    to    pay

reciprocal    compensation        charges         for       a    call    when    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     the    trunk      at   issue.               In    addition,      Cavalier

Telephone     is    not     controlling.            Cavalier            Telephone       was       an

arbitration    order      under    47    U.S.C.         §       252(e)(5)   relating         to    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.                          See Id. ¶ 40.         Adopting

CoreTel’s     argument       would      frustrate            the       regulatory      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   CoreTel    improperly

billed it for services under its tariffs.             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     of    that   service    in    CoreTel’s       tariff   was

inaccurate. 14    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.                     The FCC has

held    that     this     tariff       language    carries   a    specific      and

established      meaning:     “a   physical       transmission    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-to-

point 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    calls    are

delivered from CoreTel’s premises to its customers.                  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         that    CoreTel       itself     provide    the       facilities.

End-office      switching          charges    are      among   the     highest      recurring

charges    in    any    carrier’s       tariff,        a    price    that    is   ordinarily

justified       by    the    need     “to    allow     local    exchange       carriers      to

recover    the       substantial       investment          required    to    construct      the

tangible       connections         between        themselves     and    their      customers

throughout their service territory.”                        YMax, 26 F.C.C., 5742, ¶

40.   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 “switched-

access service” provided using IP technology.                               See FCC Tariff

No.   3,   §    1,    J.A.     433.         But    this    language     only      appears    in

CoreTel’s general definition of switched-access service.                                    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       cost-based       rate   for     lease    of   Verizon’s   entrance

facilities        for       the   purpose     of    interconnection.       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    Inc.)   is    an   incumbent         local    exchange      carrier

(“incumbent     LEC”)    that      has   been    providing         telephone   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.                           To

this    end,    the    Act    requires     incumbent        LECs     to   share     their

networks       with     any      competitive          local        exchange       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            access    to

network elements on an unbundled basis.”                      47 U.S.C. § 251(c)(3)

(emphasis added).         And, in a similar vein, § 251(c)(2) requires

an incumbent LEC “to provide, for the facilities and equipment

of   any   requesting       telecommunications           carrier,        interconnection

with    the    local     exchange     carrier’s         network      .    .     .   for   the

transmission      and     routing     of     telephone       exchange          service    and

exchange access.”         Id. § 251(c)(2) (emphasis added).                         For such

unbundled      network    elements      and       interconnection,         the      incumbent

LEC may only charge “rates, terms, and conditions that are just,

reasonable,       and    nondiscriminatory.”                 Id.    §§        251(c)(2)(D),

251(c)(3).        But    the   Telecommunications            Act    makes       clear     that

those rates, terms, and conditions are subject to negotiation by

the parties.      See id.      § 252(a).

       CoreTel    Virginia,      LLC,      is     a   competitive        LEC    that,     like

Verizon,      serves     customers      in      Virginia.          When    it       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,     2002   arbitrated        interconnection          agreement        between

Verizon    and    Cox    Virginia     Telcom,         Inc.   (“2002       Interconnection

Agreement”).       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    case,       the   2002        Interconnection      Agreement         authorized

CoreTel      to       interconnect         through,     among       other    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.”               2002 Interconnection Agreement, §§ 4.3.1,

4.3.3.      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 cost-

based.   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     network,        including      through       “an     Entrance

Facility.”     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   entrance     facilities       actually     “set     forth     in    the

Agreement,”    were      referenced    in     §    11,   which     governed       only

unbundled      access.         Section        11     addressed       “interoffice

transmission     facilities”     and     provided        that     “Verizon        shall


                                        31
provide [CoreTel] with dedicated local transport, common local

transport       in    conjunction         with       unbundled         local        switching,

unbundled       interoffice           transmission          facilities,         and      other

services in accordance with Exhibit A.”                              2002 Interconnection

Agreement, § 11.6 (emphasis added).                        And part II of Exhibit A

listed    cost-based         rates     for     unbundled        elements,      including       a

cost-based rate for “Entrance Facilities.”                           Id. Exhibit A, part

II.C.     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     as   unbundled         elements,      at    cost-based       rates     as    set

forth    in    Exhibit     A.         Those    rates   were      the    only      “rates     and

charges”      “set    forth”     in     the    2002    Interconnection              Agreement.

Thus,     under      the     2002      Agreement,      if       charges      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    time      (in    2002),       necessitated        by   47      U.S.C.    §

251(c)(3),      which      required      Verizon,          as   an    incumbent       LEC,    to

provide       any    requesting         competitive         LEC,      such     as    CoreTel,

unbundled      network     elements       at    a   reasonable,         nondiscriminatory

rate.     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     construction            and    operation      of     the     most

efficient     local     network     conceivable.”           GTE     South,     Inc.    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 cost-

based    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     were    aware     of     these      developments           when    they

contracted      in    2004.      Accordingly,          they       included     a     provision

eliminating      any   unbundling         obligation         in    their    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.                  It is incontrovertible that, by

reason    of   that    language,      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.”                               And with the

elimination      of      the    unbundling         obligation,           the        rates    for

unbundled      elements       were   rendered      inapplicable,            including        the

rate for “Entrance Facilities.”

       But     CoreTel     contends        that        the        2002     Interconnection

Agreement      nonetheless       required       that    Verizon          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       elements.      Under       CoreTel’s      view,       §    4.3.3    did    not

specify     whether     Verizon      had    to     provide          interconnection        via

leases     of   entrance    facilities       as    unbundled          elements      under    §

251(c)(3)       (its   right   to    which       was    abrogated         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.         As pointed out above, the only rates expressly

provided     for   entrance     facilities        in     the    2002       Interconnection

Agreement       were   rates    for     unbundled         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      order.        In     re

Worldcom, Inc., 17 FCC Rcd. 27039 (2002).                          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      interconnection          had     to    be   provided      at    unbundled

network      rates,      and     Verizon     arguing       that    Cox    and    the    other

competitive        LECs    had     to    “purchase        ‘entrance       facilities        and

transport for interconnection’ from its access tariffs.”                                     Id.

¶ 210, at 27142 (emphasis added).                       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.                      Nowhere in this

discussion        was     there    any       reference        to   Cox    or     the    other

competitive         LECs       having      the     right      to    purchase       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             [f]acilities                 and       transport      for

[i]nterconnection.’”            Id. ¶ 217, at 27145.                         This language is

nearly      identical      to      §    4.3.1          of     the     2002     Interconnection

Agreement, which allowed Cox to specify “an entrance facility

and transport” as its interconnection method.                             Based on this, it

is    clear    that    §   4.3.3       of    the       2002    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       facilities       that          it       explicitly         claims     were    not

unbundled.          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   to

entrance facilities except as an unbundled element.                                  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.           That        section        was         limited          to

“interconnection” --       a    service,       not    a    facility.           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.       This     pre-2003      understanding        of        the    law      was

explicitly    affirmed    by    the   FCC     in   its    amicus    brief          in   Talk

America,    to   which    the   Supreme       Court      deferred       as    an    agency

interpretation.     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. 10-

313, 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      --    as     unbundled    elements       to    be    provided    under   §

251(c)(3).       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      that       any    rates    be

reasonable and nondiscriminatory.                      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     argues            that       even     if        the      2002

Interconnection          Agreement        did    not        explicitly     allow       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.     This claim, however, finds no support in the language of

the    2004     Adoption       Agreement.            That    Agreement     stated      that    it

“does     not      include      adoption        of     the       provisions      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       at    all.        Rather,         it     strikes      out    the       unbundling

requirements        in     §   11   of    the        2002    Interconnection          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    wanted       to    change     the    terms    of     the    2002

Interconnection            Agreement      as        modified    by     the     2004    Adoption

Agreement, it could have done so at any point under § 27.3.

Indeed,    it    could       have    sought         an   entirely      new    Agreement       with

Verizon    in    2004       rather      than    agreeing       to     adopt    one     that    was

drafted prior to the 2003 Triennial Order.                            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        to    pay    only    cost-based          rates    for    its     lease    of

entrance     facilities           for     interconnection.               Rather,        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.

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