UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


BELL ATL TELE COS

v.

FCC


99-1094a

D.C. Cir. 2000


*	*	*


Williams, Circuit Judge: The Telecommunications Act of  1996, Pub. L.
No. 104-104, 110 Stat. 56, 47 U.S.C. ss 151-714,  requires local
exchange carriers ("LECs") to "establish recip- rocal compensation
arrangements for the transport and ter- mination of
telecommunications." Id. s 251(b)(5). When  LECs collaborate to
complete a call, this provision ensures  compensation both for the
originating LEC, which receives  payment from the end-user, and for
the recipient's LEC. By  regulation the Commission has limited the
scope of the recip- rocal compensation requirement to "local
telecommunications  traffic." 47 CFR s 51.701(a). In the ruling under
review, it  considered whether calls to internet service providers 
("ISPs") within the caller's local calling area are themselves 
"local." In doing so it applied its so-called "end-to-end"  analysis,
noting that the communication characteristically will  ultimately (if
indirectly) extend beyond the ISP to websites  out-of-state and around
the world. Accordingly it found the  calls non-local. See In the
Matter of Implementation of the  Local Competition Provisions in the
Telecommunications  Act of 1996, Intercarrier Compensation for
ISP-Bound Traf- fic, 14 FCC Rcd 3689, 3690 (p 1) (1999) ("FCC


Having thus taken the calls to ISPs out of s 251(b)(5)'s  provision for
"reciprocal compensation" (as it interpreted it),  the Commission
could nonetheless itself have set rates for  such calls, but it
elected not to. In a Notice of Proposed  Rulemaking, CC Docket 99-68,
the Commission tentatively  concluded that "a negotiation process,
driven by market  forces, is more likely to lead to efficient outcomes
than are  rates set by regulation," FCC Ruling, 14 FCC Rcd at 3707  (p
29), but for the nonce it left open the matter of implement- ing a
system of federal controls. It observed that in the 


meantime parties may voluntarily include reciprocal compen- sation
provisions in their interconnection agreements, and  that state
commissions, which have authority to arbitrate  disputes over such
agreements, can construe the agreements  as requiring such
compensation; indeed, even when the  agreements of interconnecting
LECs include no linguistic  hook for such a requirement, the
commissions can find that  reciprocal compensation is appropriate. FCC
Ruling, 14  FCC Rcd at 3703-05 (p p 24-25); see s 251(b)(1)
(establishing  such authority). "[A]ny such arbitration," it added,
"must be  consistent with governing federal law." FCC Ruling, 14 FCC 


This outcome left at least two unhappy groups. One, led  by Bell
Atlantic, consists of incumbent LECs (the "incum- bents"). Quite
content with the Commission's finding of  s 251(b)(5)'s
inapplicability, the incumbents objected to its  conclusion that in
the absence of federal regulation state  commissions have the
authority to impose reciprocal compen- sation. Although the
Commission's new rulemaking on the  subject may eventuate in a rule
that preempts the states'  authority, the incumbents object to being
left at the mercy of  state commissions until that (hypothetical)
time, arguing that  the commissions have mandated exorbitant
compensation. In  particular, the incumbents, who are paid a flat
monthly fee,  have generally been forced to provide compensation for
inter- net calls on a per-minute basis. Given the average length of 
such calls the cost can be substantial, and since ISPs do not  make


Another group, led by MCI WorldCom, consists of firms  that are seeking
to compete with the incumbent LECs and  which provide local exchange
telecommunications services to  ISPs (the "competitors"). These firms,
which stand to re- ceive reciprocal compensation on ISP-bound calls,
petitioned  for review with the complaint that the Commission erred in
 finding that the calls weren't covered by s 251(b)(5).


The end-to-end analysis applied by the Commission here is  one that it
has traditionally used to determine whether a call  is within its
interstate jurisdiction. Here it used the analysis  for quite a
different purpose, without explaining why such an  extension made
sense in terms of the statute or the Commis-


sion's own regulations. Because of this gap, we vacate the  ruling and
remand the case for want of reasoned decision- making.


* * *


In February 1996 Congress passed the Telecommunications  Act of 1996
(the "1996 Act" or the "Act"), stating an intent to  open local
telephone markets to competition. See H.R. Conf.  Rep. No. 104-458, at
113 (1996). Whereas before local ex- change carriers generally had
state-licensed monopolies in  each local service area, the 1996 Act
set out to ensure that  "[s]tates may no longer enforce laws that
impede[ ] competi- tion," and subjected incumbent LECs "to a host of
duties  intended to facilitate market entry." AT&T Corp. v. Iowa 
Utils. Bd., 119 S. Ct. 721, 726 (1999).


Among the duties of incumbent LECs is to "provide, for  the facilities
and equipment of any requesting telecommunica- tions carrier,
interconnection with the local exchange carrier's  network ... for the
transmission and routing of telephone  exchange service and exchange
access." 47 U.S.C.  s 251(c)(2). ("Telephone exchange service" and
"exchange  access" are words of art to which we shall later return.) 
Competitor LECs have sprung into being as a result, and  their
customers call, and receive calls from, customers of the 


We have already noted that s 251(b)(5) of the Act estab- lishes the
duty among local exchange carriers "to establish  reciprocal
compensation arrangements for the transport and  termination of
telecommunications." 47 U.S.C. s 251(b)(5).  Thus, when a customer of
LEC A calls a customer of LEC B,  LEC A must pay LEC B for completing
the call, a cost  usually paid on a per-minute basis. Although s
251(b)(5)  purports to extend reciprocal compensation to all "telecom-
munications," the Commission has construed the reciprocal 
compensation requirement as limited to local traffic. See 47  CFR s
51.701(a) ("The provisions of this subpart apply to  reciprocal
compensation for transport and termination of local 
telecommunications traffic between LECs and other telecom-


munications carriers."). LECs that originate or terminate 
long-distance calls continue to be compensated with "access  charges,"
as they were before the 1996 Act. Unlike recipro- cal compensation,
these access charges are not paid by the  originating LEC. Instead,
the long-distance carrier itself  pays both the LEC that originates
the call and links the caller  to the long distance network, and the
LEC that terminates  the call. See In the Matter of Implementation of
the Local  Competition Provisions in the Telecommunications Act of 
1996, 11 FCC Rcd 15499, 16013 (p 1034) (1996) ("Local Com- petition


The present case took the Commission beyond these tradi- tional
telephone service boundaries. The internet is "an  international
network of interconnected computers that en- ables millions of people
to communicate with one another in  'cyberspace' and to access vast
amounts of information from  around the world." Reno v. ACLU, 521 U.S.
844, 844 (1997).  Unlike the conventional "circuit-switched network,"
which  uses a single end-to-end path for each transmission, the 
internet is a "distributed packet-switched network, which  means that
information is split up into small chunks or  'packets' that are
individually routed through the most effi- cient path to their
destination." In the Matter of Federal- State Joint Board on Universal
Service, 13 FCC Rcd 11501,  11532 (p 64) (1998) ("Universal Service
Report"). ISPs are  entities that allow their customers access to the
internet.  Such a customer, an "end user" of the telephone system,
will  use a computer and modem to place a call to the ISP server  in
his local calling area. He will usually pay a flat monthly  fee to the
ISP (above the flat fee already paid to his LEC for  use of the local
exchange network). The ISP "typically  purchases business lines from a
LEC, for which it pays a flat  monthly fee that allows unlimited
incoming calls." FCC  Ruling, 14 FCC Rcd at 3691 (p 4).


In the ruling now under review, the Commission concluded  that s
251(b)(5) does not impose reciprocal compensation  requirements on
incumbent LECs for ISP-bound traffic.  FCC Ruling, 14 FCC Rcd at 3690
(p 1). Faced with the  question whether such traffic is "local" for
purposes of its 


regulation limiting s 251(b)(5) reciprocal compensation to lo- cal
traffic, the Commission used the "end-to-end" analysis  that it has
traditionally used for jurisdictional purposes to  determine whether
particular traffic is interstate. Under this  method, it has focused
on "the end points of the communica- tion and consistently has
rejected attempts to divide commu- nications at any intermediate
points of switching or exchanges  between carriers." FCC Ruling, 14
FCC Rcd at 3695 (p 10).  We save for later an analysis of the various
FCC precedents  on which the Commission purported to rely in choosing
this  mode of analysis. Before actually applying that analysis, the
Commission  brushed aside a statutory argument of the competitor LECs.
 They argued that ISP-bound traffic must be either "telephone 
exchange service," as defined in 47 U.S.C. s 153(47), or  "exchange
access," as defined in s 153(16).1 It could not be  the latter, they
reasoned, because ISPs do not assess toll  charges for the service
(see id., "the offering of access ... for  the purpose of the
origination or termination of telephone toll  services"), and
therefore it must be the former, for which  reciprocal compensation is
mandated. Here the Commis- sion's answer was that it has consistently
treated ISPs (and  ESPs generally) as "users of access service," while
treating  them as end users merely for access charge purposes. FCC 


__________

n 1 "Telephone exchange service" is defined as:


(A) service within a telephone exchange, or within a connect- ed system
of telephone exchanges within the same exchange  area operated to
furnish to subscribers intercommunicating  service of the character
ordinarily furnished by a single  exchange, and which is covered by
the exchange service  charge, or (B) comparable service provided
through a system  of switches, transmission equipment, or other
facilities (or  combination thereof) by which a subscriber can
originate and  terminate a telecommunications service.


47 U.S.C. s 153(47). "Exchange access" is defined as:


the offering of access to telephone exchange services or  facilities
for the purpose of the origination or termination of  telephone toll
services.


Id. s 153(16).


Having decided to use the "end-to-end" method, the Com- mission
considered whether ISP-bound traffic is, under this  method, in fact
interstate. In a conventional "circuit-switched  network," the
jurisdictional analysis is straightforward: a call  is intrastate if,
and only if, it originates and terminates in the  same state. In a
"packet-switched network," the analysis is  not so simple, as "[a]n
Internet communication does not  necessarily have a point of
'termination' in the traditional  sense." FCC Ruling, 14 FCC Rcd at
3701-02 (p 18). In a  single session an end user may communicate with
multiple  destination points, either sequentially or simultaneously.
Al- though these destinations are sometimes intrastate, the Com-
mission concluded that "a substantial portion of Internet  traffic
involves accessing interstate or foreign websites." Id.  Thus
reciprocal compensation was not due, and the issue of  compensation
between the two local LECs was left initially to  the LECs involved,
subject to state commissions' power to  order compensation in the
"arbitration" proceedings, and, of  course to whatever may follow from
the Commission's new  rulemaking on its own possible ratesetting.


* * *


The issue at the heart of this case is whether a call to an  ISP is
local or long-distance. Neither category fits clearly.  The Commission
has described local calls, on the one hand, as  those in which LECs
collaborate to complete a call and are  compensated for their
respective roles in completing the call,  and long-distance calls, on
the other, as those in which the  LECs collaborate with a
long-distance carrier, which itself  charges the end-user and pays out
compensation to the  LECs. See Local Competition Order, 11 FCC Rcd at
16013  (p 1034) (1996).


Calls to ISPs are not quite local, because there is some  communication
taking place between the ISP and out-of-state  websites. But they are
not quite long-distance, because the  subsequent communication is not
really a continuation, in the  conventional sense, of the initial call
to the ISP. The Com- mission's ruling rests squarely on its decision
to employ an 


end-to-end analysis for purposes of determining whether ISP- traffic is
local. There is no dispute that the Commission has  historically been
justified in relying on this method when  determining whether a
particular communication is jurisdic- tionally interstate. But it has
yet to provide an explanation  why this inquiry is relevant to
discerning whether a call to an  ISP should fit within the local call
model of two collaborating  LECs or the long-distance model of a
long-distance carrier  collaborating with two LECs.


In fact, the extension of "end-to-end" analysis from juris- dictional
purposes to the present context yields intuitively  backwards results.
Calls that are jurisdictionally intrastate  will be subject to the
federal reciprocal compensation require- ment, while calls that are
interstate are not subject to federal  regulation but instead are left
to potential state regulation.  The inconsistency is not necessarily
fatal, since under the  1996 Act the Commission has jurisdiction to
implement such  provisions as s 251, even if they are within the
traditional  domain of the states. See AT&T Corp., 119 S. Ct. at 730. 
But it reveals that arguments supporting use of the end-to- end
analysis in the jurisdictional analysis are not obviously 
transferable to this context.


In attacking the Commission's classification of ISP-bound  calls as
non-local for purposes of reciprocal compensation,  MCI WorldCom notes
that under 47 CFR s 51.701(b)(1)  "telecommunications traffic" is
local if it "originates and  terminates within a local service area."
But, observes MCI  WorldCom, the Commission failed to apply, or even
to men- tion, its definition of "termination," namely "the switching
of  traffic that is subject to section 251(b)(5) at the terminating 
carrier's end office switch (or equivalent facility) and delivery  of
that traffic from that switch to the called party's premises."  Local
Competition Order, 11 FCC Rcd at 16015 (p 1040); 47  CFR s 51.701(d).
Calls to ISPs appear to fit this definition:  the traffic is switched
by the LEC whose customer is the ISP  and then delivered to the ISP,
which is clearly the "called  party."


In its ruling the Commission avoided this result by analyz- ing the
communication on an end-to-end basis: "[T]he com- munications at issue
here do not terminate at the ISP's local  server ..., but continue to
the ultimate destination or desti- nations." FCC Ruling, 14 FCC Rcd at
3697 (p 12). But the  cases it relied on for using this analysis are
not on point.  Both involved a single continuous communication,
originated  by an end-user, switched by a long-distance communications
 carrier, and eventually delivered to its destination. One, 
Teleconnect Co. v. Bell Telephone Co., 10 FCC Rcd 1626  (1995), aff'd
sub nom. Southwestern Bell Tel. Co. v. FCC, 116  F.3d 593 (D.C. Cir.
1997) ("Teleconnect"), involved an 800 call  to a long-distance
carrier, which then routed the call to its  intended recipient. The
other, In the Matter of Petition for  Emergency Relief and Declaratory
Ruling Filed by the Bell- South Corporation, 7 FCC Rcd 1619 (1992),
considered a  voice mail service. Part of the service, the forwarding
of the  call from the intended recipient's location to the voice mail 
apparatus and service, occurred entirely within the subscrib- er's
state, and thus looked local. Looking "end-to-end,"  however, the
Commission refused to focus on this portion of  the call but rather
considered the service in its entirety (i.e.,  originating with the
out-of-state caller leaving a message, or  the subscriber calling from
out-of-state to retrieve messages).  Id. at 1621 (p 12).


ISPs, in contrast, are "information service providers," Uni- versal
Service Report, 13 FCC Rcd at 11532-33 (p 66), which  upon receiving a
call originate further communications to  deliver and retrieve
information to and from distant websites.  The Commission acknowledged
in a footnote that the cases it  relied upon were distinguishable, but
dismissed the problem  out-of-hand: "Although the cited cases involve
interexchange  carriers rather than ISPs, and the Commission has
observed  that 'it is not clear that [information service providers]
use  the public switched network in a manner analogous to IXCs,' 
Access Charge Reform Order, 12 FCC Rcd at 16133, the  Commission's
observation does not affect the jurisdictional  analysis." FCC Ruling,
14 FCC Rcd at 3697 n.36 (p 12). It  is not clear how this helps the
Commission. Even if the  difference between ISPs and traditional


is irrelevant for jurisdictional purposes, it appears relevant  for
purposes of reciprocal compensation. Although ISPs use 
telecommunications to provide information service, they are  not
themselves telecommunications providers (as are long- distance


In this regard an ISP appears, as MCI WorldCom argued,  no different
from many businesses, such as "pizza delivery  firms, travel
reservation agencies, credit card verification  firms, or taxicab
companies," which use a variety of communi- cation services to provide
their goods or services to their  customers. Comments of WorldCom,
Inc. at 7 (July 17,  1997). Of course, the ISP's origination of
telecommunications  as a result of the user's call is instantaneous
(although  perhaps no more so than a credit card verification system
or  a bank account information service). But this does not imply  that
the original communication does not "terminate" at the  ISP. The
Commission has not satisfactorily explained why  an ISP is not, for
purposes of reciprocal compensation, "sim- ply a
communications-intensive business end user selling a  product to other


The Commission nevertheless argues that although the call  from the ISP
to an out-of-state website is information service  for the end-user,
it is telecommunications for the ISP, and  thus the telecommunications
cannot be said to "terminate" at  the ISP. As the Commission states:
"Even if, from the  perspective of the end user as customer, the
telecommunica- tions portion of an Internet call 'terminates' at the
ISP's  server (and information service begins), the remaining portion 
of the call would continue to constitute telecommunications  from the
perspective of the ISP as customer." Commission's  Br. at 41. Once
again, however, the mere fact that the ISP  originates further
telecommunications does not imply that the  original telecommunication
does not "terminate" at the ISP.  However sound the end-to-end
analysis may be for jurisdic- tional purposes, the Commission has not
explained why view- ing these linked telecommunications as continuous
works for  purposes of reciprocal compensation.


Adding further confusion is a series of Commission rulings  dealing
with a class, enhanced service providers ("ESPs"), of  which ISPs are
a subclass. See FCC Ruling, 14 FCC Rcd at  3689 n.1 (p 1). ESPs, the
precursors to the 1996 Act's  information service providers, offer
data processing services,  linking customers and computers via the
telephone network.  See MCI Telecommunications Corp. v. FCC, 57 F.3d
1136,  1138 (D.C. Cir. 1995).2 In its establishment of the access 
charge system for long-distance calls, the Commission in 1983 
exempted ESPs from the access charge system, thus in effect  treating
them like end users rather than long-distance carri- ers. See In the
Matter of MTS & WATS Market Structure,  97 F.C.C.2d 682, 711-15 (p
77-83) (1983). It reaffirmed this  decision in 1991, explaining that
it had "refrained from apply- ing full access charges to ESPs out of
concern that the  industry has continued to be affected by a number of
signifi- cant, potentially disruptive, and rapidly changing circum-
stances." In the Matter of Part 69 of the Commission's  Rules Relating
to the Creation of Access Charge Subelements  for Open Network
Architecture, 6 FCC Rcd 4524, 4534 (p 54)  (1991). In 1997 it again
preserved the status quo. In the  Matter of Access Charge Reform, 12
FCC Rcd 15982 (1997)  ("Access Charge Reform Order"). It justified the
exemption  in terms of the goals of the 1996 Act, saying that its
purpose  was to "preserve the vibrant and competitive free market that
 presently exists for the Internet and other interactive com- puter
services." Id. at 16133 (p 344) (quoting 47 U.S.C.  s 230(b)(2)).


This classification of ESPs is something of an embarrass- ment to the
Commission's present ruling. As MCI World- Com notes, the Commission
acknowledged in the Access  Charge Reform Order that "given the
evolution in [informa- tion service provider] technologies and markets
since we first 




__________

n 2 The regulatory definition states that ESPs offer "services ... 
which employ computer processing applications that act on the  format,
content, code, protocol or similar aspects of the subscriber's 
transmitted information; provide the subscriber additional, differ-
ent, or restructured information; or involve subscriber interaction 
with stored information." 47 CFR s 64.702(a).


established access charges in the early 1980s, it is not clear  that
[information service providers] use the public switched  network in a
manner analogous to IXCs [inter-exchange  carriers]." 12 FCC Rcd at
16133 (p 345). It also referred to  calls to information service
providers as "local." Id. at 16132  (p 342 n.502). And when this
aspect of the Access Charge  Reform Order was challenged in the 8th
Circuit, the Commis- sion's briefwriters responded with a sharp
differentiation  between such calls and ordinary long-distance calls
covered  by the "end-to-end" analysis, and even used the analogy 
employed by MCI WorldCom here--that a call to an informa- tion service
provider is really like a call to a local business  that then uses the
telephone to order wares to meet the need.  Brief of FCC at 76,
Southwestern Bell v. FCC, 153 F.3d 523  (8th Cir. 1998) (No. 97-2618).
When accused of inconsistency  in the present matter, the Commission
flipped the argument  on its head, arguing that its exemption of ESPs
from access  charges actually confirms "its understanding that ESPs in
 fact use interstate access service; otherwise, the exemption  would
not be necessary." FCC Ruling, 14 FCC Rcd at 3700  (p 16). This is not
very compelling. Although, to be sure, the  Commission used policy
arguments to justify the "exemp- tion," it also rested it on an
acknowledgment of the real  differences between long-distance calls
and calls to informa- tion service providers. It is obscure why those


Because the Commission has not supplied a real explana- tion for its
decision to treat end-to-end analysis as controlling,  Motor Vehicle
Mfrs. Ass'n of U.S., Inc. v. State Farm Mut.  Auto. Ins. Co., 463 U.S.
29, 43 (1983); 5 U.S.C. s 706(2)(A),  we must vacate the ruling and
remand the case.


There is an independent ground requiring remand--the fit  of the
present rule within the governing statute. MCI  WorldCom says that
ISP-traffic is "telephone exchange ser- vice[ ]" as defined in 47
U.S.C. s 153(16), which it claims "is  synonymous under the Act with
the service used to make  local phone calls," and emphatically not
"exchange access" as  defined in 47 U.S.C. s 153(47). Petitioner MCI
WorldCom's  Initial Br. at 22. In the only paragraph of the ruling in
which  the Commission addressed this issue, it merely stated that it


"consistently has characterized ESPs as 'users of access  service' but
has treated them as end users for pricing pur- poses." FCC Ruling, 14
FCC Rcd at 3701 (p 17). In a  statutory world of "telephone exchange
service" and "ex- change access," which the Commission here says
constitute  the only possibilities, the reference to "access service,"
com- bining the different key words from the two terms before us, 
sheds no light. "Access service" is in fact a pre-Act term,  defined
as "services and facilities provided for the origination  or
termination of any interstate or foreign telecommunica- tion." 47 CFR


If the Commission meant to place ISP-traffic within a third  category,
not "telephone exchange service" and not "exchange  access," that
would conflict with its concession on appeal that  "exchange access"
and "telephone exchange service" occupy  the field. But if it meant
that just as ESPs were "users of  access service" but treated as end
users for pricing purposes,  so too ISPs are users of exchange access,
the Commission has  not provided a satisfactory explanation why this
is the case.  In fact, in In the Matter of Implementation of the Non-
Accounting Safeguards of Sections 271 and 272 of the Com- munications
Act of 1934, as amended, 11 FCC Rcd 21905,  22023 (p 248) (1996), the
Commission clearly stated that "ISPs  do not use exchange access."
After oral argument in this  case the Commission overruled this
determination, saying  that "non-carriers may be purchasers of those
services." In  the Matter of Deployment of Wireline Services Offering 
Advanced Telecommunications Capability, FCC 99-413, at  21 (p 43)
(Dec. 23, 1999). The Commission relied on its pre- Act orders in which
it had determined that non-carriers can  use "access services," and
concluded that there is no evidence  that Congress, in codifying
"exchange access," intended to  depart from this understanding. See
id. at 21-22 (p 44). The  Commission, however, did not make this
argument in the  ruling under review.


Nor did the Commission even consider how regarding non- carriers as
purchasers of "exchange access" fits with the  statutory definition of
that term. A call is "exchange access"  if offered "for the purpose of
the origination or termination of  telephone toll services." 47 U.S.C.
s 153(16). As MCI 


WorldCom argued, ISPs provide information service rather  than
telecommunications; as such, "ISPs connect to the local  network 'for
the purpose of' providing information services,  not originating or
terminating telephone toll services." Peti- tioner MCI WorldCom's
Reply Br. at 6.


The statute appears ambiguous as to whether calls to ISPs  fit within
"exchange access" or "telephone exchange service,"  and on that view
any agency interpretation would be subject  to judicial deference. See
Chevron U.S.A. Inc. v. Natural  Resources Defense Council, Inc., 467
U.S. 837, 842-43 (1984).  But, even though we review the agency's
interpretation only  for reasonableness where Congress has not
resolved the  issue, where a decision "is valid only as a
determination of  policy or judgment which the agency alone is
authorized to  make and which it has not made, a judicial judgment
cannot  be made to do service." SEC v. Chenery Corp., 318 U.S. 80,  88
(1943). See also Acme Die Casting v. NLRB, 26 F.3d 162,  166 (D.C.
Cir. 1994); Leeco, Inc. v. Hays, 965 F.2d 1081, 1085  (D.C. Cir.
1992); City of Kansas City v. Department of  Housing and Urban
Development, 923 F.2d 188, 191-92 (D.C.  Cir. 1991).


* * *


Because the Commission has not provided a satisfactory  explanation why
LECs that terminate calls to ISPs are not  properly seen as
"terminat[ing] ... local telecommunications  traffic," and why such
traffic is "exchange access" rather than  "telephone exchange
service," we vacate the ruling and re- mand the case to the
Commission. We do not reach the  objections of the incumbent
LECs--that s 251(b)(5)  preempts state commission authority to compel
payments to  the competitor LECs; at present we have no adequately 
explained classification of these communications, and in the  interim
our vacatur of the Commission's ruling leaves the  incumbents free to
seek relief from state-authorized compen- sation that they believe to


So ordered.