Full opinion text
AMENDED OPINION AND ORDER BRUCE J. McGIVERIN, United States Magistrate Judge. In these consolidated cases, which arise under the Telecommunications Act of 1996 (the “Telecommunications Act” or “Act”), 47 U.S.C. § 251 et seq., the court is asked to review numerous decisions made by the Telecommunications Regulatory Board of Puerto Rico (the “Board” or “TRB”) approving or rejection provisions of an arbitrated interconnection agreement entered into between telecommunications carriers Puerto Rico Telephone Company, Inc. (“PRTC”) and WorldNet Telecommunications, Inc. (“WorldNet”). Before the court are the parties’ cross-motions for summary judgment. The TRB moved for summary judgment, attaching a statement of undisputed facts (“TRB’s Fact Statement”). (Docket Nos. 58, 59, 60). PRTC also moved for summary judgment, attaching a statement of undisputed facts (“PRTC’s Fact Statement”). (Docket Nos. 61, 62, 63). Finally, WorldNet moved for summary judgment, attaching a statement of undisputed facts (“WorldNet’s Fact Statement”). (Docket No. 64). The parties each opposed the others’ motions (Docket No. 71, 74, 75, 78), and PRTC replied to the oppositions to its motion. (Docket No. 84). The TRB and WorldNet each indicated that they did not dispute the opposing parties’ Fact Statements. (Docket No. 69, 70, 72). PRTC opposed TRB’s and WorldNet’s Fact Statements. (Docket No. 76, 77). The parties consented to my jurisdiction (Docket No. 88), and the consolidated cases were referred to me for all proceedings, including entry of judgment. (Docket No. 89). FACTUAL BACKGROUND AND PROCEDURAL HISTORY I. Telecommunications Act of 1996 Congress enacted the Telecommunications Act, 47 U.S.C. § 251 et seq., with the objective of creating competition in local telephone markets. Previously, markets were controlled by “Baby Bell” carriers, spun off of American Telephone & Telegraph as part of the 1982 divestiture ending the national telephone monopoly. AT & T Commc’ns of Ill., Inc. v. Ill. Bell Tel., 349 F.3d 402, 404 (7th Cir.2003). Under the Act, these former monopolistic owners are known as incumbent local exchange carriers (“ILECs” or “incumbent carriers”), and new carriers attempting to enter the market are known as competitive local exchange carriers (“CLECs” or “competitive carriers”). In order for competitive carriers to enter the local telecommunications markets, it is necessary for them to have access to the existing telecommunications lines and infrastructure owned by the incumbent carriers. This access, known as interconnection, “allows customers of the competitor to place calls to, and to receive calls from, customers on the incumbent’s network.” WorldNet Telecomms., Inc. v. Puerto Rico Tel. Co., 497 F.3d 1, 3 (1st Cir.2007) (hereinafter, “WorldNet I”) (citation omitted). The Act requires incumbent carriers to negotiate with any competitive carriers that request to negotiate an agreement, known as an interconnection agreement (“ICA”). If the parties are unable to successfully negotiate an ICA, either party may petition the state regulatory board to arbitrate the agreement. 47 U.S.C. § 252(b)(1). The Act creates a dual regulatory scheme in which the Federal Communications Commission (“FCC”) is the exclusive authority on certain aspects of the Act, while state regulatory boards (“state boards”) are responsible for setting local pricing rules, reviewing generally-applicable terms and conditions, ensuring that all interconnection agreements comply with the Act, and acting as arbitrators, where necessary, in ICA arbitrations. See, e.g., 47 U.S.C. §§ 252(b), 252(d), 252(e)(1), 252(f)(2). A host of substantive provisions govern the terms of an agreement arbitrated pursuant to the Act, 47 U.S.C. § 252(c)(1), and a set of procedures govern the conduct of an arbitration under the Act. 47 U.S.C. § 252(b). The Act requires incumbents to sell their services as “unbundled network elements” (“UNEs”) to competitive carriers at non-discriminatory rates. In establishing rates, there is a tension between a competitive carrier’s desire to purchase UNEs at rates allowing it to combine the elements and sell them at competitive retail rates, and an incumbent’s desire to derive the same income from selling services to its competitors as it does from selling services to customers. AT & T Commc’ns of Ill., 349 F.3d at 404. These rates also affect each party’s incentives to invest in creating or renovating facilities. Id. In implementing the Act, the FCC sought to address these tensions and incentives by directing carriers and state boards to set UNE rates using a forward-looking methodology known as “total element long-run incremental cost” (“TEL-RIC”). 47 C.F.R. §§ 51.505-515. Under TELRIC, prices are based on the long-run costs that would be incurred to produce services using the most-efficient technology presently available regardless of whether the incumbent carrier actually uses the most up-to-date technology. AT & T Commc’ns of Ill., 349 F.3d at 404-05. In addition to these various substantive requirements, the Act sets forth the procedures a state board must follow in reviewing and approving interconnection agreements. The Act requires the state board to make a determination within nine months of the date the ILEC received the CLEC’s request to negotiate. 47 U.S.C. § 252(b)(4)(C). The Act requires that the state board review both negotiated and arbitrated ICAs and either “approve or reject” the agreement with written findings detailing any deficiencies. 47 U.S.C. § 252(e)(1). In the case of arbitrated agreements, the commission may reject an agreement only for limited reasons: (1) the agreement is inconsistent with the requirements of the Act set forth in 47 U.S.C. § 251 or § 252(d), or the Act’s implementing regulations, or (2) the agreement conflicts with other requirements of state law. 47 U.S.C. §§ 252(e)(2)(B), 252(e)(3). If either party is dissatisfied with a state board’s determination, that party may file an action in an appropriate district court to review whether the board’s determination meets the requirements of the Act. 47 U.S.C. § 252(e)(6). If the state board fails to approve or reject the agreement within thirty days after it is submitted by the parties, the ICA is deemed approved and ripe for federal judicial review. 47 U.S.C. § 252(e)(4). Moreover, if the state board fails to take any action to comply with its obligations under the statute, the FCC may intervene. 47 U.S.C. § 252(e)(5). II. Proceedings in this Case PRTC, an incumbent carrier, provides local and long distance telephone services throughout Puerto Rico. (Docket Nos. 63, ¶ 1; 64-3, ¶ 2). WorldNet, a competitive carrier, also provides local and long distance telephone services in Puerto Rico. (Docket Nos. 63, ¶ 2; 64-3, ¶ 2). The TRB is a state board, as defined by the Telecommunications Act. (Docket No. 63, ¶ 3). In October 2006, WorldNet formally requested interconnection agreement negotiations with PRTC. (Docket No. 59, ¶ 3). After engaging in negotiations with PRTC for various interconnection terms, World-Net filed a Petition for Arbitration with the TRB on March 7, 2007, requesting that the Board resolve 374 issues then outstanding. (Docket Nos. 63, ¶4; 59, ¶4). The Board thereby opened an arbitration proceeding, which was assigned Case Number JRT-2007-AR-0001. (Docket No. 63, ¶ 5). The parties resolved many of their disputed issues, and approximately 200 issues were submitted to the arbitrator. (Docket No. 59, ¶ 10,11). In advance of the arbitration, the parties submitted over 1,000 pages of pre-filed direct and rebuttal testimony from a combined total of twenty fact witnesses and eight expert witnesses. (Docket No. 59, ¶ 12-14). From May 22-25, 2007, the parties participated in a hearing consisting of opening statements, cross-examination of fact and expert witnesses, and closing arguments. (Docket No. 59, ¶ 15). Following the hearing, the parties submitted extensive post-hearing briefs addressing the open issues that needed to be resolved by the arbitrator. (Docket No. 59, ¶ 16). On July 2, 2007, the arbitrator issued a ruling resolving approximately 200 outstanding issues. (Docket No. 59, ¶ 17). In compliance with the requirements of Section 252(e)(1), the parties jointly submitted the resulting arbitrated interconnection agreement (the “Agreement”) to the Board for its approval. (Docket No. 63, ¶ 7). On November 2, 2007, the Board issued an order approving the Agreement in its entirety. (Docket No. 63, ¶8). WorldNet and PRTC each sought reconsideration of the Board’s approval as to certain portions of the Agreement, and on February 25, 2008, the Board issued a ruling addressing approximately sixty issues raised in these motions. (Docket Nos. 63, ¶ 9; 59, ¶ 21). For eight pricing issues, the Board determined that neither party had proposed TELRIC-compliant rates, and thereby adopted interim rates and scheduled a follow-on hearing to determine the rates. (Docket No. 59, ¶ 22, 23). The Board conducted the follow-on hearing and issued a ruling on those issues on August 8, 2008. (Docket No. 63, ¶ 10). Next, WorldNet and PRTC each sought reconsideration of the August 8 ruling, and the Board ruled on these motions on November 10, 2008. (Docket No. 63, ¶ 11). The parties then submitted a First Amendment to the Agreement to the Board for its approval. (Docket No. 63, ¶ 13). The parties have provided the record from the arbitration proceedings (containing 116 separate documents) to the court in a Joint Appendix in CD-ROM form (Docket Nos. 59, ¶ 28; 65), and have provided additional documents in a Supplemental Joint Appendix (Docket No. 85). DISCUSSION I. Summary Judgment Standard Summary judgment is appropriate when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is material only if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In determining if a material fact is “genuine,” the court does not weigh the facts but instead ascertains whether the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.; Leary v. Dalton, 58 F.3d 748, 751 (1st Cir.1995). “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the [evidence] ... which it believes demonstrate the absence of a genuine issue of material fact.” Crawford-El v. Britton, 523 U.S. 574, 600 n. 22, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Once this threshold is met, the burden shifts to the nonmoving party. The nonmovant may not rest on mere conclusory allegations or wholesale denials. Fed.R.Civ.P. 56(e); Libertad v. Welch, 53 F.3d 428, 435 (1st Cir.1995). Instead, the nonmoving party must “set forth specific facts showing that there is a genuine issue for trial” and support such facts with “affidavits ... made on personal knowledge ... set[ting] forth such facts as would be admissible in evidence.” Fed.R.Civ.P. 56(e). Further, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Of course, the court draws inferences and evaluates facts “in the light most favorable to the nonmoving party.” Leary, 58 F.3d at 751. Summary judgment is particularly appropriate for this administrative appeal on a closed administrative record. Courts have concluded that in disputes related to interconnection agreements under the Act, “the record created by the state utility commission is closed for the purposes of review.” Bell Atlantic-Delaware, Inc. v. Global NAPS South, Inc., 11 F.Supp.2d 492, 502 (D.Del.1999). See also MCI Telecomms. Corp. v. New York Tel. Co., 134 F.Supp.2d 490, 500 (N.D.N.Y.2001) (“this Court agrees that it is limited to the record created by the state utility commission when reviewing disputes related to interconnection agreements issued under [the Act]”); MCI Telecomms. Corp. v. Ohio Bell Telephone Co., 279 F.Supp.2d 947, 954 (S.D.Ohio 2003) (“[u]nder the provisions set forth in the Act for judicial review, it is most inappropriate for a district court to review matters which have not been fully presented to the Commissioners”). II. Analysis A. Standard of Review State agency determinations resting principally on an interpretation of federal law are subject to de novo review by federal courts, and are not accorded the deferential review reserved for reviews of federal agencies interpreting their own rules and regulations. Global NAPs, Inc. v. Verizon New England, Inc., 444 F.3d 59 (1st Cir.2006). Specifically, in reviewing an arbitrated agreement under the Telecommunications Act, a court reviews de novo whether the agreement is in compliance with the Act and implementing regulations. U.S. West Commc’ns, Inc. v. Wash. Utils. and Transp. Comm’n, 255 F.3d 990, 994 (9th Cir.2001). However, a federal court reviews the state agency’s decisions as to matters of fact, policy, and application of general standards under an arbitrary and capricious standard. WorldNet I, 497 F.3d at 5, U.S. West Commc’ns, Inc., 255 F.3d at 994. While not articulating a position itself, the First Circuit has noted, “other Circuits have held that where no error of law exists, the state agency’s other determinations are reviewed under the arbitrary and capricious standard.” Global NAPs, Inc. v. Verizon New Eng., Inc., 396 F.3d 16, 23 (1st Cir.2005) (“Global NAPs I”) (citing Southwestern Bell Tel. Co. v. Waller Creek Commc’ns, Inc., 221 F.3d 812, 816 (5th Cir.2000); MCI Telecomms. Corp. v. Ohio Bell Tel. Co., 376 F.3d 539, 548 (6th Cir.2004); U.S. West Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1117 (9th Cir.1999); U.S. West Commc’ns, Inc. v. Sprint Commc’ns Co., 275 F.3d 1241, 1248 (10th Cir.2002)). In the absence of any contrary First Circuit authority, the court will apply this widely-used standard. Nevertheless, a different standard applies when the Board is interpreting the Puerto Rico Telecommunications Act of 1996, commonly known as Law 213. 27 L.P.R.A. § 265 et seq. In that situation, the court should give deference to the Board as the agency charged with administering Law 213. WorldNet I, 497 F.3d at 11 (discussing Law 213 and noting, “[although the Board’s authority under local law is a legal issue, it is customary where any doubt exists to give some deference to the agency charged with administering the statute”). See also Antilles Cement Corp. v. Acevedo Vila, 408 F.3d 41, 51 (1st Cir.2005) (“the administrative interpretation given to an act by the [Commonwealth] agency in charge of enforcing it deserves great weight and deference”) (alteration in original) (quoting Zambrana Torres v. Gonzalez, 145 D.P.R. 616, 638 (1998)); Pharm. Research & Mfrs. of Am. v. Concannon, 249 F.3d 66, 75 (1st Cir.2001) (noting that “[a]s the [state agency] is charged with administering the [state program], we owe deference to its interpretation of the [state statute]”); Fitch v. PUC, 261 Fed.Appx. 788, 791 (5th Cir.2008) (“state law determinations by state commissions are reviewed under the more deferential arbitrary and capricious standard”) (internal quotation omitted); Mich. Bell Tel. Co. v. MFS Intelenet of Mich., Inc., 339 F.3d 428, 433 (6th Cir.2003) (noting the “inherent logic of ... allowing state agencies wider deference in state law determinations”). However, in those cases where the Board overturns the arbitrator’s decision, a “further wrinkle exists” in the analysis. WorldNet I, 497 F.3d at 5. As discussed above, the Act provides that either party may petition the state board to arbitrate any open issues. 47 U.S.C. § 252(b)(1). Upon petition, the state board may request further information from the parties to assist it in making a decision. 47 U.S.C. § 252(b)(4). When an agreement is arbitrated, the state board must “approve or reject” the agreement within thirty days of its submission. 47 U.S.C. §§ 252(e)(1), 252(e)(4). In exercising these two options, the state board may reject an arbitrated agreement only if it finds that the agreement does not hold the carriers to their obligations under section 251, or fails to meet the pricing standards of section 252. 47 U.S.C. §§ 252(e)(2)-(3), WorldNet I, 497 F.3d at 5-6. The TRB may also impose other requirements of Puerto Rico law so long as they are not inconsistent with the statute. WorldNet I, 497 F.3d at 6. The First Circuit explained in reviewing the previous WorldNet and PRTC agreement that when the TRB decides to delegate its authority to arbitrate an agreement to an independent arbitrator— as it did here — the Act limits the TRB’s options to either accepting or rejecting the resulting agreement. WorldNet Telecomms., Inc. v. Puerto Rico Tel. Co., 497 F.3d 13 (1st Cir.2007) (hereinafter, “WorldNet II ”) (denying rehearing of WorldNet I). In other words, the TRB should treat an arbitrated agreement as a “presumptive solution” which it “must” accept if it is consistent with the statute, “unless ” the TRB “reasonably” finds that the arbitrated agreement conflicts with Puerto Rico law, TRB rules, or the TRB’s “considered policy determinations”. WorldNet I, 497 F.3d at 7 (original emphasis). A federal court reviewing the board’s decision must accordingly look beneath the surface of the board’s decision to analyze whether it is in fact “reasonable.” WorldNet I, 497 F.3d at 6-7 (analyzing state and federal law and concluding that there was no support for TRB’s assumption that liquidated damages provision was improper). Therefore, when the TRB overturns a decision of the arbitrator, the question is whether the TRB reasonably found that the Arbitrator’s determinations were inconsistent with the statute or conflicted with one of the other referenced bodies of law and policy. B. Disputed Issues 1. Liquidated Damages PRTC challenges the Board’s affirmance of the arbitrator’s decision to include a provision in the agreement for liquidated damages. (Docket No. 62, p. 17). The arbitrator adopted a modified version of WorldNet’s proposed provision imposing liquidated damages on PRTC if it failed to meet specific performance obligations in the Agreement. (JA, Ex. 92, p. 28). The Board affirmed the arbitrator’s decision, finding that (1) the arbitrator’s decision did not violate Law 213; (2) the general principles of Puerto Rico law and policy, as construed by the First Circuit in WorldNet I, are not violated by a liquidated damages clause; (3) there was sufficient evidence in the record for the arbitrator to conclude that the liquidated damages provision should be adopted and did not provide for excessive damages; and (4) as a matter of policy, liquidated damages provide appropriate, pro-competitive incentives to PRTC. (JA, Ex. 92, p. 31-36). PRTC argues that the Board’s decision violated law and exceeded the Board’s legal authority, and that the decision was arbitrary and capricious. In particular, PRTC argues that (1) the Board’s decision violated Law 213, as construed by the Puerto Rico Supreme Court in Caribe Commc’ns v. Puerto Rico Tel. Co., 157 D.P.R. 203 (2002), and 27 L.P.R.A. § 269j-1, as amended, which precludes the Board from awarding damages payable from one telecommunications carrier to another; and (2) no support for the Board’s decision can be found in federal law, which does not permit the imposition of liquidated damages when such an imposition conflicts with state law. (Docket No. 62, p. 11-17). PRTC also argues that Puerto Rico law further prohibits the awarding of punitive damages (p. 17-23), and that the Board acted arbitrarily and capriciously in failing to appropriately address an issue of spoliation of evidence relating to liquidated damages (p. 23-26). WorldNet argues that the Board’s decision was (1) consistent with both Puerto Rico and federal law; (2) not contrary to Puerto Rico law concerning punitive damages; and (3) not arbitrary and capricious because PRTC’s spoliation argument misstates the record. (Docket No. 74, p. 8-23). Finally, the Board argues that its decision to adopt the liquidated damages provision in the Agreement was based on controlling First Circuit precedent, citing WorldNet I, 497 F.3d at 7. (Docket No. 60, p. 36). This court reviews the Board’s decision on the legal issue de novo and the factual and policy decisions under an arbitrary and capricious standard. However, the court reviews the Board’s interpretation of Puerto Rico law with deference. Initially, it is difficult to find fault with the Board’s decision-making on this matter. In its review of the previous WorldNet-PRTC agreement, the Board rejected a liquidated damages provision included in the arbitrated agreement. WorldNet I, 497 F.3d at 5. The First Circuit, in no uncertain terms, found the Board’s decision incorrect as a matter of both procedural and substantive law. Id., at 6-8. The court instructed the Board that “neither the Act nor Puerto Rico precedent forbids incentive-based liquidated damages ... [and] the Board should not assume an inability to use cost-based liquidated damages.” Id., at 8. The court instructed that, on remand, the Board could continue to set aside the arbitrator’s award only if “it violates general agency policy”. Id. (original emphasis). Accordingly, this time the Board took care to follow these clear First Circuit instructions, affirming the arbitrator’s award as consistent with state and federal law, as well as its own policies. Likewise, the arbitrator noted, “I am confused by the PRTC argument because it appears to challenge the holding of [WorldNet I ]”, and she proceeded to rely on WorldNet I as “the law of the First Circuit”. (JA, Ex. 85, p. 30). Nevertheless, PRTC contends that the Board erred as a matter of law because Puerto Rico law prohibits the Board from awarding liquidated damages payable from one telecommunications carrier to another. (Docket No. 62, p. 11). The parties cite: (1) a Puerto Rico Supreme Court case, Caribe Commc’ns, Inc., 157 D.P.R. 203, concerning the jurisdiction and powers of the TRB; (2) the legislative history for 27 L.P.R.A. § 269j-l indicating that it was passed in response to Caribe Communications in order to “clarify” that the Board was “granted express authority to estimate and grant compensation for damages and losses caused”, Laws of Puerto Rico, Act. Nov. 4, 2005, No. 138, Statement of Motives; and (3) Section 269j — 1 itself, which purports to grant authority to the TRB to adjudicate claims for damages “caused by any natural or juridical person to a user”. 27 L.P.R.A. § 269j — 1. It is not clear that this set of laws prevents the Board from including or enforcing a liquidated damages provision in arbitrated agreements. As WorldNet correctly observes, there is “a crucial distinction between the Board as an adjudicator of claims for money damages and the Board as a regulator implementing its federal statutory obligation to resolve disagreements ... about the terms of [a] federally-mandated interconnection agreement.” (Docket No. 74, p. 9). Thus, even if Puerto Rico law does circumscribe the Board’s authority to award liquidated damages, as PRTC urges, such a power is quite different from permitting parties to include a liquidated damages provision in them private contracts. It is improper for this court to attempt to rehash the arguments concerning the winding path of Puerto Rico law on this issue because, first, this court is bound by the First Circuit’s interpretation of that set of laws; second, this court reviews the Board’s interpretation of Puerto Rico law with deference; and third, the parties have not provided the court with English translations of the Puerto Rico cases to which they cite. Nonetheless, it is also unnecessary for the court to provide its own interpretation of Puerto Rico law because it is clear that the Board provided a reasonable interpretation of state law, and moreover, that it correctly interpreted federal law in the First Circuit. PRTC further argues that Puerto Rico law prohibits the Board’s imposition of a punitive damages provision, also known as a “penal clause” under Puerto Rico law, where one of the parties does not agree to the provision. (Docket No. 62, p. 18-23). PRTC suggests that the First Circuit’s WorldNet I decision does not automatically control the outcome here because there the court “focused on the question that was presented — whether liquidated damages could exceed actual damages under Puerto Rico law — and ... did not resolve the instant question.” (Id.). In WorldNet I, the First Circuit held that the Board was incorrect in assuming that “liquidated damages exceeding a reasonable estimate of damages to WorldNet were forbidden either by Puerto Rico law or by something inherent in the concept of liquidated damages.” WorldNet I, 497 F.3d at 6. The First Circuit held, however, that “despite our own holding that neither federal nor Puerto Rico law automatically forbids such ‘penalties’ ” in the context of arbitrating an interconnection agreement, “the Board may reasonably conclude [on remand] that such incentive payments are inconsistent with regulatory policy ...” Id., 497 F.3d at 8. PRTC reads this portion of the World-Net I decision to mean that the “First Circuit asked the Board ... to consider any other statutory provisions, regulations, or policy determinations precluding the imposition of punitive liquidated damages.” (Docket No. 62, p. 21-22). I read World-Net I differently. In my reading of WorldNet I, the First Circuit quite clearly held that “neither the Act nor Puerto Rico precedent forbids incentive-based liquidated damages” and the Board could overturn the arbitrator’s imposition of a punitive damages clause only if “it violates general agency policy”. WorldNet I, 497 F.3d at 8. In other words, the First Circuit’s decision allowed the Board to reach a different result only if such a result was required by the Board’s own policies, not by the Board’s differing view of the law. Moreover, PRTC does not contend that Puerto Rico law has changed since World- Net I was decided. In fact, the First Circuit cited the principal cases on which PRTC relies in support of its conclusion that “Puerto Rico courts have been more solicitous of liquidated damages clauses than their Anglo-American counterparts, seeming even in private contracts to permit coercive and punitive clauses so long as they are not excessively so.” Id., 497 F.3d at 7 (citing Rochester Capital Leasing Corp. v. Williams Int'l Ltd., 3 P.R. Offic. Trans. 226, 103 D.P.R. 163 (1974); Rodriguez Lopez v. Jimenez Aponte, KLCE-97-000040, 1997 PR App. LEXIS 271, at *10 — *13 (P.R. Ct.App., Apr. 29, 1997)). Finally, PRTC contends that Puerto Rico permits “punitive” liquidated damages clauses “only [in] those instances in which parties willingly, expressly, and a prioñ agree on the penalty or compensation to be paid.” (Docket No. 62, p. 19). However, the application of this principle (even if true) is undermined by the reality that “interconnection agreements are not ordinary commercial contracts: the Act dictates their creation; they are imposed by involuntary arbitration and agency review if the parties cannot agree; and their aim is to secure the public benefit of competition.” WorldNet I, 497 F.3d at 7. Indeed, it makes little sense to complain that liquidated damages are permissible only where parties “willingly” agree to such a provision in the context of an entire agreement that may be brought into existence against the will of a party. Therefore, I find that the Board decided the liquidated damages issue correctly as a matter of law. I review the spoliation issue under an arbitrary and capricious standard. The Board addressed PRTC’s argument on this issue, noting, “With regard to charges of deliberate destruction of evidence, the Arbitrator makes no mention of intentional shredding, so we conclude that it was not decisional. Only one sentence in PRTC’s brief mentions the shredding of supporting documentation; it is likely that the arbitrator viewed the shredding as an unfortunate error.” (JA, Ex. 92, p. 33). Having reviewed the record material on which PRTC bases its argument, it is clear that the Board’s and arbitrator’s decisions on this issue were far from arbitrary. PRTC complains that WorldNet’s expert “selectively destroyed] relevant evidence” by shredding the notes containing the underlying data on which WorldNet’s damages proposal was based. (Docket No. 62, p. 24-25). In fact, the expert, Brian Pitkin, testified that as a general rule he took notes and created drafts directly on his computer and that he created paper documents “only as a temporary convenience for reference,” after which he routinely entered those changes into his computer and disposed of the notes. (JA, Ex. 29, p. 9). The arbitrator would have been well within her discretion to find that these work practices, and the destruction of a small quantity of the expert’s working notes which were later copied into his computer, did not require sanctions for either deterrence or remedial purposes. See, e.g., Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 446 (1st Cir.1997) (district court may exclude spoliated evidence “where necessary to prevent the non-offending side from suffering unfair prejudice. ... Although deterrence may play a role, the primary aim is remedial, at least absent willful destruction”). Therefore, I find that on the issue of liquidated damages, the Board correctly interpreted the law and its evidentiary determination was not arbitrary or caprieious. Thus, the Board’s decision is affirmed. 2. Performance Standards WorldNet asserts that the Board and the arbitrator erred by adopting general standards (the “Telecordia Standards” or the “Standards”) for the performance standards portion of the agreement, rejecting the modifications proposed by the parties and incorporating the arbitrator’s own modifications to the standards. (Docket No. 64-2, p. 22; JA, Ex. 92, p. 37). The Telecordia Standards were developed by outside consultants to the Board, Telecordia Technologies, Inc. As of the date of the Board’s decision, the Board had initiated a general rulemaking proceeding to determine whether the Telecordia Standards should be adopted for all Puerto Rico telecommunications carriers. (JA, Ex. 92, p. 37, n. 90). The arbitrator noted that the parties agreed to apply the Standards to their agreement, with certain modifications: “In a rare instance of harmony in this Arbitration, the parties are in agreement as to the adoption of the Telecordia Standards. Each offers modifications, however.” (JA, Ex. 85, p. 25). The arbitrator reasoned that it would be preferable to await the Board’s decision in its pending rulemaking as to any modifications to the Standards, thus rejecting the parties’ proposals and including only those modifications necessary to make the Standards applicable to a two-party agreement rather than a generalized rule. (Id, p. 26). The Board affirmed the arbitrator’s policy determination that standardizing performance measures through generic rules would be more effective than including different standards on an agreement-by-agreement basis. In addition, the Board also affirmed the policy rationale that “standards prepared by an objective party, after a review of comparable standards nationwide, will best serve to improve service quality in Puerto Rico so that it is on a par with that in the rest of the United States.” (JA, Ex. 92, p. 39). I find that on this matter of policy, the Board did not act arbitrarily and capriciously. WorldNet also raises legal arguments on this issue, arguing that the Board and arbitrator erred as a matter of law by failing to resolve this issue by determining, according to the Act’s timetable, whether it complies with the Telecommunications Act. (Docket No. 64-2, p. 23). The cited section of the Act provides that “[t]he State commission shall resolve each issue set forth in the petition and the response, if any, by imposing appropriate conditions as required to implement subsection (c) of this section upon the parties to the agreement,” within a given time frame. 47 U.S.C. § 252(b)(4)(C). Subsection (c), in turn, requires a state board to (1) ensure that the arbitrated agreement satisfies section 251 of the Act, (2) set any rates pursuant to subsection (d); and (3) provide a schedule for implementation of the terms and conditions of the agreement. 47 U.S.C. § 252(c). WorldNet contends that the arbitrator violated the Act but failing to “resolve” the issue, and by failing to resolve it within the time frame required by law because the performance standards are subject to change pursuant to the ongoing rulemaking. However, WorldNet does not accurately characterize the Board’s decision. The Act requires that the state board “shall conclude the resolution of any unresolved issues not later than 9 months after the date on which the [LEC] received the request under this section.” See 47 U.S.C. § 252(b)(4)(C). However, the arbitrator did resolve the issues insofar as there is a term in the contract setting forth the parties’ obligations on the matter; that those obligations are subject to change does not make the disputed issue “unresolved” for purposes of the Act. See, e.g., Petition of DIECA Commc’ns, Inc., No. 00-DCIT-997-ARB, 2000 Kan. PUC LEXIS 110 (Kan.P.U.C. Aug. 18, 2000) (approving rates, terms and conditions for parties to arbitration “to use on an interim basis, subject to modification, and true up if necessary, based on the results of the generic docket”); Application of Cincinnati Bell Tel. Co., No. 96-899-TPALT, 1997 Ohio PUC LEXIS 343 (Ohio P.U.C. May 15, 1997) (“[njeither of these requirements [Section 252(b)(4)(C) or Section 251] mandates a permanent decision.... By proceeding in this matter, we will certainly be resolving the involved arbitration issues even if we are doing so on an interim basis”). WorldNet also claims that the Board violated its due process rights. Although WorldNet included this claim in its complaint, it did not so much as make a passing refei’ence to the “due process” issue in its opening summary judgment brief (Docket No. 64-2); it was only in response to the Board’s discussion of this issue (Docket No. 60, p. 39) that WorldNet included the argument in its reply brief. (Docket No. 74, p. 67). While ordinarily an argument made for the first time in a reply brief cannot be considered, because WorldNet’s reply brief also serves as its opposition to the Board’s and PRTC’s cross-motions for summary judgment, that rule does not strictly apply in this case. Nonetheless, the court may easily dispose of WorldNet’s due process claim on the merits. To state a violation of procedural due process, a plaintiff must show (1) a deprivation of a protected property interest, and (2) a denial of due process. Perez-Acevedo v. Rivero-Cubano, 520 F.3d 26, 30 (1st Cir.2008). Other courts have held that there is no protected property right to particular terms in an interconnection agreement, and specifically, that there is no protected interest in permanent contract terms which would give rise to a due process claim when a state board orders that an interim term be used. e.spire Commc’ns, Inc. v. N.M. Pub. Regulation Comm’n, 392 F.3d 1204, 1210 (10th Cir.2004) (affirming denial of due process claim because a “unilateral expectation that the rate stated in the IA [interconnection agreement] was permanent does not constitute a protectable property right”). Moreover, even if WorldNet did have a protected interest in such a contract term, it has been afforded sufficient process. “The essential requirements of due process ... are notice and an opportunity to respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). WorldNet does not contest that it was given the opportunity to be heard in the proceedings below— which included a hearing before the arbitrator and various motions for reconsideration directed to the Board. Nonetheless, WorldNet argues that its due process rights were violated because the Board failed in its duty to ensure that the arbitrated agreement satisfies the requirements of section 251 of the Act. See 47 U.S.C. § 252(c) (“In resolving by arbitration ... any open issues and imposing conditions upon the parties to the agreement, a State commission shall — (1) ensure that such resolution and conditions meet the requirements of section 251 of this title”). However, WorldNet does not argue now and did not argue before the Board that the arbitrated performance standards in any way fail to meet the substantive requirements of section 251; WorldNet argues merely that the Board procedurally acted improperly in imposing interim terms and terms to be decided in a rulemaking of general applicability. Thus, this argument is without merit. Moreover, WorldNet conveniently ignores the fact that the Act governs both the arbitration of interconnection agreements as well as the setting of general-applicability rates. Thus, there is no merit to WorldNet’s assertion that it has a “property interest in an interconnection agreement that has been properly and fairly determined to comply with the requirements of the Act and Puerto Rico law.” (Docket No. 74, p. 67). As noted, courts have repeatedly found that interim rates do not violate any such right, e.g., Petition of DIECA Commc’ns, Inc., 2000 Kan. PUC LEXIS 110; Application of Cincinnati Bell Tel. Co., 1997 Ohio PUC LEXIS 343; and moreover, the Board’s Telecordia Standards are required to comply with the Act just as much as the arbitrated terms. See 47 U.S.C.A. § 252(d) (“just and reasonable” generic rates must be based on cost, nondiscriminatory, and may include a reasonable profit). For the foregoing reasons, WorldNet’s performance standards arguments are without merit and the Board’s decision is affirmed. 3. Transit Traffic WorldNet asserts that the Board also failed to resolve the issue of transit traffic. The issue here involves the question of an incumbent carrier’s duty to interconnect with competitors “for the transmission and routing of telephone exchange service,” 47 U.S.C. § 251(c)(2)(A), and whether that duty extends to the “indirect” transmission and routing of such traffic to third-party carriers, or is limited to end users. (Docket No. 64-2, p. 26). In other words, there is a question as to whether the incumbent carrier has a duty to provide such indirect interconnection where two competitive carriers negotiate with the incumbent carrier (with whom they are each interconnected) to “transit” traffic between their two networks as an alternative to establishing a direct connection between their respective networks. (Id). In the administrative proceedings below, the arbitrator noted that the question of the extent of PRTC’s transit traffic duties is currently before the Board in a rulemaking proceeding. (JA, Ex. 85, p. 59). The arbitrator thus directed PRTC to continue to carry transit traffic “until the Board issues its decision in that proceeding.” (Id). PRTC challenged this decision before the Board, and the Board held that the arbitrator “erred in creating an uncertain obligation” and accordingly modified the arbitrator’s decision to include a “sunset provision” of 365-days from the latter of the effective date of the Board’s Reconsideration Order or of any court order finalizing any appeal of the Reconsideration Order. (JA, Ex. 92, p. 11-12). The Board noted that this holding would “provide ample time for the completion of the Board’s rulemaking process.” (Id, at p. 12). Here, WorldNet argues that the arbitrator and Board improperly punted on the issue of transit traffic, and under the Act were required to definitively resolve the issue rather than defer resolution pending the completion of the rulemaking proceeding. (Docket No. 64-2, p. 26). Further, WorldNet argues, PRTC is required by federal law to carry WorldNet’s transit traffic, and a decision on the matter does not require awaiting the Board’s determination in the rulemaking. (Id). PRTC does not directly address these arguments, but instead contends that WorldNet is judicially estopped from challenging the Board’s decision on this issue. (Docket No. 78, p. 39-42). PRTC argues that in the proceedings below, WorldNet proposed that PRTC be required to carry transit traffic until the Board resolved the legal issues in the rulemaking proceeding, and thus WorldNet cannot now change position to challenge just such a requirement. (Id.). The Board, for its part, argues that its determination on this issue did resolve these issues for purposes of the Act’s requirement that it resolve all issues put before it. (Docket No. 60, p. 54-55). As a preliminary matter, the court must determine what standard of review applies to this issue. The Board did not fully overturn the arbitrator’s decision, but instead modified the order to include a “sunset provision”. Thus, if the Board has not yet concluded its rulemaking procedure in one year, PRTC will at that time be permitted to cease allowing transit traffic. As noted, the First Circuit has instructed that the Board must accept the arbitrator’s decision if it is consistent with the Act, unless the Board finds that the solution conflicts with state statutes, agency rules, or considered policy determinations. WorldNet I, 497 F.3d at 7. While one might quibble over how much the Board’s modification substantively changed the arbitrator’s decision, it is clear that the Board did not “accept” the arbitrator’s decision. As such, the Board could only modify the arbitrator’s decision on these enumerated grounds. However, the Board’s only explanation for its modification of the arbitrator’s decision was that it created “an uncertain obligation.” (See JA, Ex. 92, p. 11-12). The Board did not explain whether this uncertainty was a violation of state law, federal law, or considered Board policy, or whether the Board simply had a difference of opinion with the arbitrator. In the absence of further explanation, the court is unable to determine whether the Board overturned the arbitrator’s decision on one of the grounds permitted under WorldNet I, 497 F.3d at 8. WorldNet argues that the Board’s result does not constitute a resolution of this issue, and the arbitrator and Board were required to more definitively resolve the issue. However, as discussed above, the Board may satisfy its obligation under the Act by putting a term in the parties’ contract even if that term is subject to change pending a generic rulemaking. See Section II.B.2, supra. Because this argument is without merit, I need not reach PRTC’s assertion that WorldNet is estopped from making the argument. However, none of the parties here specifically requested relief in the form of overturning the Board’s decision and reinstating the arbitrator’s decision, so it is unclear whether the court has the authority to order such a result. Therefore, the issue is remanded to the Board to reconsider the arbitrator’s decision with the options of either (1) accepting the arbitrator’s solution, or (2) overturning or modifying the arbitrator’s solution only on grounds consistent with this decision. 4. Mixed Bundles WorldNet challenges the Board’s decision to overrule the arbitrator on the matter of pricing the telecommunications services offered in a “mixed bundle”-that is, a packaged resale product containing both telecommunications and non-telecommunications services. Section 251(e)(4)(A) provides that an incumbent carrier has an obligation “to offer for resale at wholesale rates any telecommunications service that the carrier provides at retail to subscribers who are not telecommunications carriers.” 47 U.S.C. § 251(c)(4)(A). The question here concerns the appropriate “wholesale rates” for products that the incumbent carrier offers at retail to its own customers in mixed bundles. To illustrate the issue, the Board gave the example of an ILEC that charges $30 for telecommunications service A, $10 for non-telecommunications service B, and packages them together in mixed bundle C for a resale price of $30. (JA, Ex. 92, p. 10). The $30 price-tag of product C reflects a 25% discount over the un-bundled rate of $40 if products A and B were each purchased separately. The arbitrator determined that (1) the ILEC (PRTC) must disaggregate telecommunications product A from this bundle and offer it individually to the CLEC (WorldNet), (2) at a price reflecting this 25% discount, e.g., $22.50 (25% of $30), and (3) and then apply the parties’ agreed-upon wholesale discount (say, 20%) to the $22.50 price. (Id.) (See also JA, Ex. 85, p. 135) (“the retail price of a telecommunications service within a mixed bundle is to be determined and used in conjunction with the wholesale discount to determine charges for resold services”). PRTC argued, and the Board agreed, that the appropriate wholesale price under the Act does not reflect this double-discounting, and in this scenario, PRTC need only offer two options to WorldNet: WorldNet may “choose between two rates for the telecommunications service it seeks to resell: the stand alone rate for the telecommunications service and the rate for the mixed bundle which includes one or more telecommunications service”, thus re-fleeting either the wholesale discount or the bundled discount (Id., at p. 11). Because the Board was overruling the arbitrator on this issue, the Board was required to accept the arbitrator’s solution if it was consistent with the statute, “unless ” the Board “reasonably” found that the arbitrated agreement conflicted with Puerto Rico law, TRB rules, or TRB policy determinations. WorldNet I, 497 F.3d at 7 (original emphasis). The Board’s decision on this issue rested on multiple grounds: (1) as a legal matter, the arbitrator’s decision conflicted with Section 251(c)(4) of the Act; and (2) as a matter of TRB policy, “the Arbitrator should not break new ground, but should apply [established] principles of law....” (JA, Ex. 92, p. 10-11). The first question, then, is whether the Board correctly determined that the arbitrated agreement was inconsistent with the Act. As noted, the Act creates an obligation for ILECs “to offer for resale at wholesale rates any telecommunications service that the carrier provides at retail to subscribers who are not telecommunications carriers.” 47 U.S.C. § 251(c)(4)(A). The FCC has interpreted this provision in the context of mixed bundles to mean that the ILEC must “make available at wholesale rates retail services that are actually composed of other retail services, i.e., bundled service offerings.” Implementation of the Local Competition Provisions in the Telecomms. Act of 1996, 11 FCC Rcd. 15499, 15936, ¶877 (1996) (“First Local Competition Order”). The FCC was clear, however, that the Act “does not impose on incumbent LECs the obligation to disaggregate a retail service into more discrete retail services.” Id. In other words, “The 1996 Act merely requires that any retail services offered to customers be made available for resale.” Id. In 2006, a telecommunications company petitioned the FCC for a declaratory ruling establishing that: for all promotions greater than 90 days, ILECs are required either to offer to telecommunications carriers the value of the giveaway or discount, in addition to making available for resale at the wholesale discount the telecommunications service that is the subject of the ILEC’s retail promotion, or to apply the wholesale discount to the effective retail rate of the telecommunications service that is the subject of the ILEC’s retail promotion; [and] the effective retail rate of the telecommunications service component(s) of a mixed-bundle promotion shall be determined by prorating the telecommunications service component based on the percentage that each unbundled component is to the total of the bundle if added together at their retail, unbundled component prices.... Petition of Image Access, Inc. d/b/a Newphone for Declaratory Ruling, 21 FCC Rcd. 7806 (2006). The FCC requested comments due in July and August 2006, but in the intervening three years, the FCC has not ruled or acted on the petition (according to the parties’ representations and as best as the court is able to determine). Thus, while it may be possible that the Act permits a pricing structure of the sort WorldNet urges, the FCC’s analysis in the First Report and Order — along with its silence as to the proposed declaratory ruling — demonstrates that such a structure is not required by the current law on this matter. It not clear, however, that such a pricing provision is “inconsistent” with the Act: it may not be required by the Act, but it also may not violate the Act. WorldNet I, 497 F.3d at 7. Nonetheless, the Board may also overturn the arbitrator if the Board reasonably finds that a decision conflicts with Board policy. Id. It seems eminently reasonable for the Board to enforce a policy that “the Arbitrator should not break new ground, but should apply principles of law that have already been established.” (JA, Ex. 92, p. 10-11). As discussed above, even if WorldNet’s proposed pricing structure does not violate the Act, the established principles of law on this matter do not require WorldNet’s proposed result. Indeed, that the arbitrated solution “break[s] new ground” is illustrated by the fact that an identical proposed rule has been pending for three years before the FCC without ruling. Therefore, the Board’s decision on this issue is affirmed. 5. OSS Access Issue I: Download, Upload, and Batches OSS Access PRTC challenges the Board’s decision requiring PRTC to provide WorldNet with certain forms of Operations Support Systems (“OSS”) access. Generally, OSS includes “databases or facilities used in the provision of a telecommunications service.” 11 FCC Rcd. 15499, 15763, ¶517 (1996). As the parties characterize it, OSS refers more specifically to computer database systems used to store and provide information related to customer subscription, maintenance and repair, billing, service requests, and other services. (Docket No. 60, p. 25). In particular, PRTC challenges the Board’s determination that PRTC must provide WorldNet with the ability to download and upload OSS information both as individual datum and in batches of data. The Board affirmed the arbitrator’s decision that PRTC was required to provide this access to WorldNet. (JA, Ex. 85, p. 63). The Board held that the FCC Local Competition Order required PRTC to provide WorldNet with access in a manner that provides WorldNet with a meaningful opportunity to compete, and accordingly, that PRTC was required to provide the OSS functionalities at issue. (JA, Ex. 92, p. 62). In the FCC’s Third Local Competition Order, the FCC interpreted the Act’s requirement of “nondiscriminatory access” to require an ILEC to provide access and unbundled network elements to a CLEC “in substantially the same time and manner to that which the incumbent provides to itself.” Implementation of the Local Competition Provisions of the Telecomms. Act of 1996, 15 FCC Rcd. 3696, 3913, ¶490 (1999) (“Third Local Competition Order”) (internal quotation omitted) (citing 47 U.S.C. § 251(c)(3)). However, in those cases where such an analysis is inapplicable because the ILEC does not provide itself with access to the particular network element, the FCC requires the ILEC to provide the CLEC with access “in a manner that provides the requesting carrier with a meaningful opportunity to compete.” Id., ¶ 491. Here, the parties dispute the proper standard and further, the application of that standard to the facts at issue. World-Net seeks access to download and upload PRTC’s customer information and process that information in batches. The Board found that PRTC “would have no reason to provide its own employees with the functionalities at issue” and that accordingly, the “meaningful opportunity to compete” standard applies. (JA, Ex. 92, p. 62). Applying that standard, the Board found that WorldNet “must have upload, download and batch capability to have a meaningful opportunity to compete.” (Id.). In other words, the Board required PRTC to provide WorldNet with the ability to obtain individual datum and batches of data. Where the Board affirms the arbitrator’s holding, this court reviews its interpretation of the law de novo and its decisions as to matters of fact, policy, and application of general standards under an arbitrary and capricious standard. Based on the above explication of the FCC’s rulings on this issue, I find that the Board correctly determined that a “meaningful opportunity to compete” standard applied to issues of access to elements which PRTC does not provide to its own employees. See 15 FCC Rcd. 3696, 3913, ¶491 (“In those situations where an incumbent LEC does not provide access to network elements to itself, we reaffirm our requirement that incumbent LECs must provide access in a manner that provides a requesting carrier with a meaningful opportunity to compete.”). The next question is whether the Board correctly determined that (1) PRTC does not provide the upload, download, and batch functions to itself and thus the “meaningful opportunity to compete” standard applies to those OSS functions, and (2) that WorldNet required upload, download, and batch functions in order to meaningfully compete. Because these are factual matters, the court reviews the issue under an arbitrary and capricious standard. The Board and arbitrator referred to certain facts concerning these issues, but did not provide citations to particular record evidence. (JA, Ex. 85, p. 63, 220; Ex. 92, p. 62). Nonetheless, I find that there is ample evidence in the record on these issues in support of the Board’s decision. First, the record evidence shows that the functionalities at issue are not the kind PRTC provides to itself. WorldNet seeks more streamlined electronic interfaces in order to access PRTC’s databases. (Ex. 28, p. 29). PRTC does not need to provide itself with “electronic interfaces” to access its databases because PRTC’s employees have direct access to PRTC’s own databases. A WorldNet witness explained that when a PRTC customer calls PRTC for a repair, “PRTC keys the repair order directly into its electronic system.” (JA, Ex. 28, p. 29). However, “when a WorldNet customer calls WorldNet, WorldNet does not have an electronic interface to do what PRTC can do for its customers.” (Id.). Currently, WorldNet’s “daily transactions as related to the preorder, order, provisioning and repairs processes” requires duplicative and inefficient data entry processes because information must be entered in multiple systems and cannot be directly uploaded to the PRTC system. (Id., p. 30). There is also sufficient record evidence that the lack of OSS functionalities hinders WorldNet’s ability to compete. World-Net’s inability to download creates an “enormous manual workload in order to try to track [its] orders and repairs and keep any accountability and performance tracking.” (JA, Ex. 28, p. 6-7). In the arbitration hearing, a WorldNet witness testified that the absence of download capability has “greatly impacted WorldNet’s ability to retain its customer base”, hampered its ability to provide effective service to its own customers, and impacted its business in other ways. (JA, Ex. 62, p. 182; 233-39). For example, if a WorldNet customer needs repairs, WorldNet requests that PRTC open a “trouble ticket” in PRTC’s system, but WorldNet is unable to directly open “trouble tickets” itself and has limited ability to obtain detailed information on the status of that service request. (Id., p. 238). Therefore, the Board applied the correct legal standard and, further, was supported by sufficient record evidence in its application of that legal standard to the facts before it such that its decision on OSS functionalities was not arbitrary or capricious. Thus, the Board’s decision is affirmed. 6. OSS Access Issue II-Access to OSS Systems Access PRTC challenges the Board’s determination, affirming the arbitrator’s decision, that PRTC must provide WorldNet with electronic access to certain enumerated OSS interfaces. The Board determined that WorldNet needed access to the OSS systems and not merely to the information contained in the systems in order for it to, in the terms of the legal standard, have a meaningful opportunity to compete. (JA, Ex. 92, p. 90). PRTC challenges this determination on the grounds that (1) as a matter of law, PRTC is not required to provide access to the actual OSS systems so long as it provides access to the OSS functions; and (2) the decision is arbitrary and capricious because it represents an unexplained change in policy by the Board. (Docket No. 62, p. 34-36). The FCC explained in the First Local Competition Order that “nondiscriminatory access to the functions of operations support systems ... would include access to the information they contain.” 11 FCC Rcd. 15499, 15763, ¶ 517 (1996). The FCC continued that this nondiscriminatory access is governed by an ILEC’s duty under Section 251(c)(3) to provide nondiscriminatory access to unbundled network elements and its duty under Section 251(c)(4) to provide resale services under just, reasonable, and nondiscriminatory terms and conditions. Id. This language suggests that the nondiscrimination requirements of the Act extend not only to the “information” contained in OSS, but also to the “functions” of those systems. See 11 FCC Rcd. at 15763, ¶ 517 It is unclear whether the Board interpreted the “functions” language to extend to providing access to the OSS interfaces and to the system itself. However, as a legal matter, it is within the Board’s authority to enforce the nondiscrimination requirements more stringently than that required by law. WorldNet I, 497 F.3d at 9 (“[t]he authority of the Board to adopt under local law additional interconnection requirements not mandated by the Act is explicitly set forth ... the Act sets a federally mandated floor of equal service and State commissions retain authority to raise the bar”) (internal quotation omitted). Therefore, even if the Board’s result was not compelled by law, PRTC provides no evidence that it was contrary to established law. The question then becomes whether the Board’s decision to “raise the bar” was arbitrary and capricious. There is ample evidence in the record supporting the Board’s determination that PRTC must provide WorldNet with access to its OSS systems in order to provide WorldNet a “meaningful opportunity to compete.” The Board noted that its decision was based in part on “the well documented difficulties the parties have had in implementing OSS requirements in their interconnection agreements” making it therefore “appropriate that the agreement enumerate the specific requirements.” (JA, Ex. 92, p. 90). Thus, PRTC’s assertion that this decision represents an arbitrary change in Board policy is without merit. To the contrary, the reason for the Board’s change in position is explained by its effort to address the parties’ past “well documented difficulties.” This documentation includes testimony that the parties have had difficulties implementing WorldNet’s access to OSS functions, resulting in prolonged competitive barriers to WorldNet. (See, e.g., JA, Ex. 26, p. 5). PRTC has not shown any record evidence to the contrary. Thus, I