Michigan Bell Telephone Compan v. Laura Chappelle ( 2010 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0052p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
No. 07-2469
Plaintiff-Appellee, --
MICHIGAN BELL TELEPHONE COMPANY,
-
Nos. 07-2469/2473
,
>
-
v.
-
Intervenors Defendants-Appellants, -
COVAD COMMUNICATIONS COMPANY, et al.,
-
-
-
-
MCLEODUSA TELECOMMUNICATIONS
Intervenors, -
SERVICES, INC., et al.,
-
-
-
Defendants. -
J. PETER LARK, Commissioner, et al.,
-
-
No. 07-2473 -
-
Plaintiff-Appellee, -
MICHIGAN BELL TELEPHONE COMPANY,
-
-
v. -
-
-
Defendants-Appellants, -
LAURA CHAPPELLE, et al.,
-
-
-
Intervenors. -
COVAD COMMUNICATIONS COMPANY, et al.,
N
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 06-11982—Julian A. Cook, Jr., District Judge.
Argued: December 10, 2008
Decided and Filed: February 23, 2010
Before: BATCHELDER, Chief Judge; GILMAN and SUTTON, Circuit Judges.
1
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 2
_________________
COUNSEL
ARGUED: Bill Magness, CASEY, GENTZ & MAGNESS, L.L.P., Austin, Texas, Michael
A. Nickerson, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,
for Appellants. William Julius Champion III, DICKINSON WRIGHT PLLC, Ann Arbor,
Michigan, for Appellee. Scott H. Angstreich, KELLOGG, HUBER, HANSEN, TODD,
EVANS & FIGEL, PLLC, Washington, D.C., for Amici Curiae. ON BRIEF: Bill Magness,
CASEY, GENTZ & MAGNESS, L.L.P., Austin, Texas, Steven D. Hughey, OFFICE OF
THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, Michael S. Ashton,
FRASER, TREBILCOCK, DAVIS & DUNLAP, P.C., Lansing, Michigan, Steven D.
Hughey, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellants. William Julius Champion III, Jeffery V. Stuckey, DICKINSON WRIGHT
PLLC, Ann Arbor, Michigan, for Appellee. Scott H. Angstreich, KELLOGG, HUBER,
HANSEN, TODD, EVANS & FIGEL, PLLC, Washington, D.C., Laurel R. Bergold, P.
Michele Ellison, Richard K. Welch, FEDERAL COMMUNICATIONS COMMISSION,
Washington, D.C., for Amici Curiae.
BATCHELDER, C.J., delivered the opinion of the court, in which GILMAN, J.,
joined. SUTTON, J. (pp. 23-31), delivered a separate dissenting opinion.
_________________
OPINION
_________________
ALICE M. BATCHELDER, Chief Judge. A state telephone-utility commission and
several competitive local exchange carriers appeal a judgment in which the district court
vacated the commission’s order requiring the incumbent local exchange carrier to provide
certain “entrance facilities” at wholesale prices. Finding the appellants’ arguments
unpersuasive, we AFFIRM.
I.
Congress enacted the Telecommunications Act of 1996, 47 U.S.C. § 152 et seq., to
mandate “that local service, which was previously operated as a monopoly overseen by the
several states, be opened to competition.” MCI Telecom. Corp. v. Bell Atl., 271 F.3d 491,
497 (3d Cir. 2001). Congress required the incumbent local exchange carriers (ILECs) to
cooperate with competitive local exchange carriers (CLECs) to allow the CLECs to enter the
market, either by connecting their equipment to the ILEC’s existing network or by
purchasing or leasing existing network elements and services. Id. The ILECs and CLECs,
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 3
through negotiation or arbitration, enter into “interconnection agreements,” which set out the
terms, rates, and conditions. Id. Congress directed the Federal Communications
Commission (FCC) to promulgate implementing regulations, but gave oversight of the
interconnection agreements to the state public-utility commissions. Id.
In the present case, the ILEC is Michigan Bell; the CLECs are Covad
Communications, Talk America, Inc., XO Communications, McLeod USA
Telecommunications, and TDS Metrocom; and the state utility commission is the Michigan
Public Service Commission (MPSC), for which the individual commissioners were J. Peter
Lark, Laura Chappelle, and Monica Martinez. This case concerns the regulation of
“entrance facilities,” a type of transmission facility that connects a CLEC network with an
ILEC network. But, just to be clear, an “entrance facility” is really just a fancy name for a
cable or wire used to transport calls from a CLEC switch to an ILEC switch, and this wire
can be very short (if the two switches are close together), or it can be very long, stretching
for blocks or even miles (if the switches are far apart), depending on the relative locations
of the two switches.
As Congress directed, the FCC promulgated regulations regarding interconnection,
see 47 C.F.R. § 51.1 et seq., and then set about deciding which of the ILEC’s network
elements must be “unbundled”; that is, which of the ILEC’s network elements must be
1
offered for sale or lease to the CLECs at regulated prices or rates. In August 1996, the
FCC issued its Local Competition Order, 11 FCC Rcd. 15499, 1996 WL 452885 (Aug.
8, 1996), in which it purported to apply the Act’s “impairment test”2 and — finding
impairment everywhere — required the ILECs to unbundle all of their interoffice-
1
The FCC created a particular set of regulated rates called “Total Element Long Run Incremental
Cost” (TELRIC) rates. Thus, “unbundled” means “regulated,” which means “at TELRIC rates.” See
Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467, 531 (2002) (citing AT&T Corp. v. Iowa Utils. Bd., 525 U.S.
366, 394 (1999)) (“Bundling is about lease pricing. To provide a network element ‘on an unbundled basis’
is to lease the element, however described, to a requesting carrier at a stated price specific to that
element.”); see also USTA v. FCC (USTA II), 359 F.3d 554, 561-62 (D.C. Cir. 2004) (discussing
“unbundling requirements”).
2
The “impairment test” states:
In determining what network elements should be made available [on an unbundled
basis, i.e., to the CLECs at TELRIC rates], the [FCC] shall consider, at a minimum,
whether . . . the [ILEC’s] failure to provide access to such network elements would
impair the ability of the [CLEC] to provide the services that it seeks to offer.
47 U.S.C. § 251(d)(2)(B).
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 4
transmission facilities (which included entrance facilities). But the Supreme Court
vacated that order, finding the FCC’s analysis of impairment unjustifiably over-broad,
and remanded the issue to the FCC to try again. See AT&T Corp. v. Iowa Utils. Bd., 525
U.S. 366 (1999).
Meanwhile, Michigan Bell had begun to provide for the CLECs to connect to its
network. In so doing, Michigan Bell added “entrance facilities” (i.e., cables or wires)
with which the CLECs could connect, in order to access Michigan Bell’s network.
Acting pursuant to the FCC’s initial directives, Michigan Bell offered its “entrance
facilities” to the CLECs at regulated rates.
The FCC, on remand from the Iowa Utilities Board decision, again required the
ILECs to unbundle all of their interoffice transmission facilities (including entrance
facilities), once again under an “impairment test” in which it found impairment
everywhere. See UNE Remand Order, 15 FCC Rcd. 3696, 1999 WL 1008985 (Nov. 5,
1999). But the reviewing court vacated that order as well, finding the FCC’s analysis
of impairment unjustifiably over-broad, and remanded the issue to the FCC to try a third
time. See USTA v. FCC, 290 F.3d 415 (D.C. Cir. 2002) (“USTA I”).
In its third attempt, on remand from the D.C. Circuit, the FCC — among other
things — removed “entrance facilities” from its description of the ILEC network and
concluded that an impairment test was not even necessary to hold that entrance facilities
need not be unbundled. See Triennial Review Order (TRO), 18 FCC Rcd. 16978, 2003
WL 22175730, ¶ 366 n.1116 (Sept. 17, 2003) (“Our determination here effectively
eliminates ‘entrance facilities’ as UNEs [unbundled network elements] and, therefore,
moots the [FCC’s pending notice of proposed rule making] insofar as it proposes
limitations on obtaining entrance facilities as UNEs.”). But the reviewing court vacated
the order yet again, finding that the FCC’s exclusion of entrance facilities from the
impairment analysis was improper and directing that the FCC must conduct an
impairment analysis for entrance facilities. See USTA v. FCC, 359 F.3d 554 (D.C. Cir.
2004) (“USTA II”).
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 5
Consequently, the FCC issued a fourth order, the Triennial Review Remand
Order (TRRO), 20 FCC Rcd. 2533, 2005 WL 289015 (Feb. 4, 2005), in which it
reestablished that entrance facilities are a part of the ILEC network, but found that
unbundled access was not necessary because the CLECs were not impaired by paying
competitive rates for the use of entrance facilities.3 At the conclusion of this finding,
however, the FCC included the following paragraph:
140. We note in addition that our finding of non-impairment with respect
to entrance facilities does not alter the right of competitive LECs to
obtain interconnection facilities pursuant to section 251(c)(2) for the
transmission and routing of telephone exchange service and exchange
access service. Thus, competitive LECs will have access to these
[interconnection] facilities[4] at cost-based rates to the extent that they
require them to interconnect with the incumbent LEC’s network.
TRRO, 20 FCC Rcd. 2533, 2005 WL 289015, ¶ 140 (footnotes omitted).
As mentioned previously, Michigan Bell had provided entrance facilities for
some time, and had been charging the CLECs regulated (TELRIC) rates for use of those
entrance facilities. But, in light of the TRRO, Michigan Bell decided that it would
henceforth charge higher (i.e., competitive) rates for the entrance facilities it was
providing.5 Thus, Michigan Bell notified the CLECs that it would be changing the
“interconnection agreements” to reflect this new pricing scheme.
3
“In fact, the [USTA II] court expressed skepticism that incumbent LECs should be required to
build entrance facilities under any circumstances.” TRRO, 20 FCC Rcd. 2533, 2005 WL 289015, ¶ 137
n.383 (citing USTA v. FCC, 359 F.3d 554, 586 (D.C. Cir. 2004) (“If (as appears) [entrance facilities] exist
exclusively for the convenience of the CLECs, it seems anomalous that CLECs do not themselves provide
them . . . .”)).
4
Although it may appear obvious, it bears express mention that, in writing this paragraph, the
FCC did not use “interconnection” as a verb, describing the act of interconnecting with the ILEC network.
As used in this paragraph, “interconnection” is an adjective, describing a noun (a certain type of facility)
and thereby creating a new noun, an “interconnection facility,” as something different and distinct from
an “entrance facility.” So, when the FCC says “access to these facilities” in the final sentence, we are
confident that the FCC is referring to these “interconnection facilities” as opposed to those “entrance
facilities” from which it has just drawn a distinction.
5
Michigan Bell continued to provide interconnection with its network at regulated (TELRIC)
rates, as required by the statute and regulations, and nothing in the record suggests otherwise. Michigan
Bell simply understood the TRRO to mean that an “entrance facility” is different from an “interconnection
facility,” such that, so long as it provides an “interconnection facility” at TELRIC rates, it can also offer
an “entrance facility” (i.e., a different apparatus) at competitive rates, should it choose to do so.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 6
The CLECs, none too pleased with this impending price increase, responded by
complaining to the MPSC, arguing that (regardless of the other paragraphs in the TRRO)
paragraph 140 dictates that the CLECs are still entitled to use the entrance facilities at
TELRIC rates for purposes of interconnection with the ILEC network. The MPSC
agreed and ordered Michigan Bell to continue to provide entrance facilities at TELRIC
rates. The parties refer to this as the “September Order.”
Michigan Bell appealed to the district court, which agreed with Michigan Bell
(i.e., disagreed with the MPSC’s interpretation of the TRRO) and reversed the September
Order, explaining:
Th[is] [c]ourt agrees with [] Michigan [Bell] and concludes that the
September Order[,] which pertains to this issue[,] does not comply with
the rules that were adopted by the FCC pursuant to Section 251. It is not
reasonable to interpret an explanatory comment, such as the one found
in ¶ 140 of the TRRO, in a manner that undermines the plain meaning of
the rule. The meaning of ¶ 140 must be interpreted in light of the FCC
rule, which provides that entrance facilities need not be provided by
incumbent carriers to competing carriers on an unbundled basis. The
TRRO conveys the finding by the FCC that entrance facilities should be
offered competitively. A review of the ruling by the MPSC reveals that
the September Order does not comply with this directive, and,
accordingly, must be set aside.
Mich. Bell Tel. Co. v. Lark, No. 06-11982, 2007 WL 2868633, at *7 (E.D. Mich. 2007).
Both the CLECs and the MPSC commissioners appealed the decision to this
court, raising one issue for review. In addition, the FCC and Verizon have submitted
briefs as amicus curiae.
II.
“When a district court’s decision on summary judgment is the result of a review
of a state administrative body’s ruling, de novo review requires that the proper standard
of review of the underlying state administrative ruling be applied.” Quick Commc’ns,
Inc. v. Mich. Bell Tel. Co., 515 F.3d 581, 584 (6th Cir. 2008). That is, we review de
novo the question of whether the MPSC’s order violated the Telecommunications Act,
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 7
but we may overturn the MPSC’s findings of fact and state law only if those findings
were arbitrary and capricious. Id. Because the present case involves no findings of fact
or determinations of state law, review in this case is entirely de novo.6
The key statutory provisions in this case involve “interconnection” and specify
that “each incumbent local exchange carrier [i.e., ILEC] has the following duties:”
(2) Interconnection — The duty to provide, for the facilities and
equipment of any requesting telecommunications carrier [i.e., CLEC],
interconnection with the local exchange carrier’s [i.e., ILEC’s] network
—
(A) for the transmission and routing of telephone
exchange service and exchange access;
(B) at any technically feasible point within the
carrier’s network;
6
The dissent reviews the present case through the prism of Auer deference, through which a
federal agency’s interpretation of its own ambiguous regulation — even an interpretation presented in an
amicus brief — is “controlling unless plainly erroneous or inconsistent with the regulation.” Auer v.
Robbins, 519 U.S. 452, 461 (1997) (quotation marks and citations omitted); Coeur Alaska, Inc. v. Se.
Alaska Cons. Council, 557 U.S. --, 129 S. Ct. 2458, 2470 (2009). The Supreme Court has since added two
additional limitations: (1) a “near equivalence of the statute and regulation belies the [applicability of]
Auer deference,” Gonzales v. Oregon, 546 U.S. 243, 257 (2006); and (2) an agency cannot “under the
guise of interpreting a regulation . . . create de facto a new regulation,” Christensen v. Harris County,
529 U.S. 576, 588 (2000); see also Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 525 (1994) (Thomas,
J., dissenting); Rosales-Garcia v. Holland, 322 F.3d 386, 403 n.22 (6th Cir. 2003) (en banc). And, the
Seventh Circuit has expressed some skepticism about the applicability of Auer deference to amicus briefs
at the circuit court level, explaining:
It is odd to think of agencies as making law by means of statements made in briefs, since
agency briefs, at least below the Supreme Court level, normally are not reviewed by the
members of the agency itself; and it is odd to think of Congress delegating lawmaking
power to unreviewed staff decisions.
Keys v. Barnhart, 347 F.3d 990, 993-94 (7th Cir. 2003) (citations omitted).
The dissent relies on the FCC’s amicus brief to this court (submitted upon our request), in which
the FCC offers an interpretation of the TRRO, which is itself an “interpretive rule” and not a true
“regulation.” See A.D. Transp. Express, Inc. v. United States, 290 F.3d 761, 768 (6th Cir. 2002) (“An
interpretative rule is a rule that clarifies or explains an existing law or regulation.”; “[I]nterpretative rules
fall within an exception to the [Administrative Procedures] Act and do not require notice and comment.”).
For these reasons alone, one might legitimately question the applicability of Auer deference in this appeal.
See Keys, 347 F.3d at 993-94; Coeur, 129 S. Ct. at 2479 (Scalia, J., concurring) (“Auer, however, stands
only for the principle that we defer to an agency’s interpretation of its own ambiguous regulation.”
(emphasis in original)); Boose v. Tri-County Metro. Transp. Dist., 587 F.3d 997, 1005 (9th Cir. 2009)
(“We will not, under the guise of deference, engage in an end-run around notice-and-comment
rulemaking.”).
But, as will be addressed in the body of this opinion, even ignoring these questions of Auer’s
applicability, we find Auer deference unavailing in this appeal because the FCC’s proffered interpretation
is so plainly erroneous or inconsistent with the regulation, see Auer, 519 U.S. at 461, that we can only
conclude that the FCC has attempted to create a new de facto regulation under the guise of interpreting the
regulation, see Christensen, 529 U.S. at 588. We therefore decline the dissent’s invitation to apply Auer
deference to amici FCC’s position in this appeal.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 8
(C) that is at least equal in quality to that provided by
the local exchange carrier to itself or to any
subsidiary, affiliate, or any other party to which
the carrier provides interconnection; and
(D) on rates, terms, and conditions that are just,
reasonable, and nondiscriminatory, in accordance
with the terms and conditions of the agreement
and the requirements of this section and § 252.[7]
(3) Unbundled access — The duty to provide, to any requesting
telecommunications carrier for the provision of a telecommunications
service, nondiscriminatory access to network elements on an unbundled
basis at any technically feasible point on rates, terms, and conditions that
are just, reasonable, and nondiscriminatory in accordance with the terms
and conditions of the agreement and the requirements of this section and
§ 252 of this title.[8] An incumbent local exchange carrier shall provide
such unbundled network elements in a manner that allows requesting
carriers to combine such elements in order to provide such
telecommunications service.
47 U.S.C. § 251(c). Thus, § 251(c)(2) requires the ILEC “to provide . . . interconnection
with [its] network” to the CLEC (i.e., “for the [CLEC’s] facilities and equipment”),
whereas § 251(c)(3) requires the ILEC “to provide . . . any requesting [CLEC with]
nondiscriminatory access to [i.e., use of] [its] network elements on an unbundled basis.”
But the statute further specifies:
In determining what network elements should be made available for
purposes of subsection (c)(3) of this section, the [FCC] shall consider, at
a minimum, whether . . . the [ILEC’s] failure to provide access to such
network elements would impair the ability of the [CLEC] to provide the
services that it seeks to offer.
7
The pertinent provision of § 252 is the “pricing standards” provision, which states:
Interconnection and network element charges — Determinations by a State commission
of the just and reasonable rate for the interconnection of facilities and equipment for
purposes of § 251(c)(2), and the just and reasonable rate for [use of or access to the
ILEC’s] network elements for purposes of § 251(c)(3) shall be based on the cost
(determined without reference to a rate-of-return or other rate-based proceeding) of
providing the interconnection or network element (whichever is applicable) and
nondiscriminatory, and may include a reasonable profit.
47 U.S.C. § 252(d) (statutory citation form altered). This was the origin of, and now means, TELRIC
rates.
8
See the foregoing footnote.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 9
47 U.S.C. § 251(d)(2)(B) (emphasis added). This is the basis for the “impairment
analysis.”
The FCC has promulgated implementing regulations, at least two of which are
pertinent here, the first being its “interconnection” regulation, which tracks 47 U.S.C.
§ 251(c)(2) (quoted above):
An incumbent LEC shall provide, for the facilities and equipment of any
requesting telecommunications carrier, interconnection with the
incumbent LEC’s network:
(1) For . . . telephone exchange traffic . . .
(2) At any technically feasible point within the [ILEC]’s
network . . .
(3) That is at a level of quality [used by the ILEC itself]
...
(4) On terms and conditions that are just. . . .
47 C.F.R. § 51.305. The FCC’s other pertinent regulation — its counterpart to its
“interconnection facility” requirement — is its rule that ILECs are not obligated to
provide “entrance facilities”:
Entrance facilities. An incumbent LEC [i.e., ILEC] is not obligated to
provide a requesting carrier [i.e., CLEC] with unbundled access to
dedicated transport that does not connect a pair of incumbent LEC wire
centers [i.e., an ‘entrance facility’].
47 C.F.R. § 51.319(e)(2)(i). Recall that “[b]undling is about lease pricing,” and “[t]o
provide a network element ‘on an unbundled basis’ is to lease the element . . . to a
requesting carrier at a stated price [i.e., TELRIC rates] specific to that element.” Verizon
Commc’ns, Inc. v. FCC, 535 U.S. 467, 531 (2002). So, this provision could be rewritten
as: an ILEC is not obligated to provide entrance facilities at TELRIC rates. Or, stated
in positive terms: an ILEC can charge competitive rates for the use of its entrance
facilities. The resulting inference is that the ILEC is not obligated to provide an entrance
facility at all if it is inconvenient (or unprofitable) to do so. See, e.g., USTA II, 359 F.3d
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 10
at 586 (“If (as appears) [entrance facilities] exist exclusively for the convenience of the
CLECs, it seems anomalous that CLECs do not themselves provide them . . . .”)).
All of this brings us to the TRRO: what it says and what it means. In the part of
the TRRO that addressed entrance facilities (and its analysis thereof), the FCC stated:
D. Entrance Facilities
136. In the Local Competition Order, the [FCC] defined dedicated
transport as:
incumbent LEC transmission facilities dedicated to a
particular customer or carrier that provide
telecommunications between wire centers owned by
incumbent LECs or requesting telecommunications
carriers, or between switches owned by incumbent LECs
or requesting telecommunications carriers.
The [FCC] reaffirmed this definition, which encompassed entrance
facilities (the transmission facilities that connect competitive LEC
networks with incumbent LEC networks), in the UNE Remand Order.
In the Triennial Review Order, we revised the definition of dedicated
transport to exclude entrance facilities. We determined that entrance
facilities ‘exist outside the incumbent LEC’s local network’ and should
therefore — given section 251’s focus on competition within the local
network — be excluded from the definition of dedicated transport. We
also limited the definition of dedicated transport to ‘those transmission
facilities connecting incumbent LEC switches and wire centers within a
LATA.’ Reviewing the Triennial Review Order, the USTA II court
indicated that our exclusion of entrance facilities from the definition of
dedicated transport was at odds with the definition of ‘network element’
found in section 153(29) of the Act. Specifically, the court found that we
erred in excluding these facilities from the definition of dedicated
transport for purposes of implementing the section 251 unbundling
obligation. The court noted, moreover, that ‘[i]f entrance facilities are
correctly classified as ‘network elements,’ an analysis of impairment
would presumably follow.’
137. The USTA II court did not reject our conclusion that incumbent
LECs need not unbundle entrance facilities, only the analysis through
which we reached that conclusion. In response to the court’s remand, we
reinstate the Local Competition Order definition of dedicated transport
to the extent that it included entrance facilities, but we find that
requesting carriers are not impaired without unbundled access to entrance
facilities.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 11
138. As the court suggested, we now conduct an impairment analysis
with respect to entrance facilities and find that the economic
characteristics of entrance facilities that we discussed in the Triennial
Review Order support a national finding of non-impairment.
Specifically, entrance facilities are less costly to build, are more widely
available from alternative providers, and have greater revenue potential
than dedicated transport between incumbent LEC central offices. As we
noted in the Triennial Review Order, entrance facilities are used to
transport traffic to a switch and often represent the point of greatest
aggregation of traffic in a competitive LEC’s network. Because of this
aggregation potential, entrance facilities are more likely than dedicated
transport between incumbent LEC offices to carry enough traffic to
justify self-deployment by a competitive LEC. Moreover, competitive
LECs have a unique degree of control over the cost of entrance facilities,
in contrast to other types of dedicated transport, because they can choose
the location of their own switches. For example, they can choose to
locate their switches close to other competitors’ switches, maximizing
the ability to share costs and aggregate traffic, or close to transmission
facilities deployed by other competitors, increasing the possibility of
finding an alternative wholesale supply. In addition, they often can
locate their switches close to the incumbent LEC’s central office,
minimizing the length and cost of entrance facilities.
139. The record in this proceeding also demonstrates that competitive
LECs are increasingly relying on competitively provided entrance
facilities. BellSouth notes, for example, that between October 2003 and
September 2004, 10 percent to 20 percent of the entrance facilities it had
provided to competitive LECs were replaced by facilities obtained from
other sources. Verizon states that between early 2003 and mid-2004, it
migrated more than 32,000 entrance facility circuits to non-Verizon
facilities. No commenters in this proceeding have disputed this evidence,
which indicates that wholesale alternatives to entrance facilities provided
by incumbent LECs are widely available. And it appears that incumbent
LECs and competitors alike continue to agree that entrance facilities are
more competitively available than other types of dedicated transport.
140. We note in addition that our finding of non-impairment with respect
to entrance facilities does not alter the right of competitive LECs to
obtain interconnection facilities pursuant to section 251(c)(2) for the
transmission and routing of telephone exchange service and exchange
access service. Thus, competitive LECs will have access to these
[interconnection] facilities at cost-based rates to the extent that they
require them to interconnect with the incumbent LEC’s network.
141. The evidence described above convinces us that competitive LECs
are not impaired without access to entrance facilities. We also conclude
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 12
that it would be inappropriate to apply the same impairment test to
entrance facilities that we have adopted for other types of dedicated
transport. As we have explained, entrance facilities are characterized by
unique operational and economic characteristics that justify separate
treatment: they are less costly to build, are more widely available from
alternative providers, and have greater revenue potential than dedicated
transport between incumbent LEC central offices. For these reasons, we
do not apply our test for other types of dedicated transport to entrance
facilities.
TRRO, 20 FCC Rcd. 2533, 2005 WL 289015, ¶¶ 136-141 (footnotes omitted).
In one sense, the question in this appeal concerns this passage from the TRRO:
what does it say and what does it mean? And the parties’ disagreement as to the
meaning is central to the present dispute. So, let us begin by restating it, as clearly and
succinctly as we can, and then proceed to what it means. Based on our plain reading, we
find the most plausible “translation” to be:
136. In our last order, we drew two conclusions from a single
premise:
Premise: Entrance facilities are not even a
part of (i.e., not ‘within’) the
ILEC’s network. Therefore:
First Conclusion: Entrance facilities do not need to
be unbundled; and
Second Conclusion: We do not even need to conduct
an impairment analysis on
entrance facilities.
Alas, when the USTA II court considered this
proposition, it rejected our premise and our second
conclusion.
137. But the USTA II court did not reject our first conclusion, and we now
reach that same conclusion again, albeit for a different reason.
138. There is nothing monopolistic about entrance facilities. If you are a
CLEC and you don’t like the rates the ILEC is charging for use of its
entrance facility, then build your own (or lease it from another CLEC
that has built its own).
139. Other CLECs are certainly doing that (i.e., building their own).
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 13
140. And, rest assured, if you build your own entrance facility, the ILEC must
still let you hook it up to its network (i.e., use its “interconnection
facility”) at wholesale rates.
141. Therefore, entrance facilities need not be provided at TELRIC rates.
So, the question becomes: does this mean what it says? The appellants contend that it
does not. But, to find a different meaning, it is necessary to complicate this discussion
considerably. That is, the appellants — the FCC, the MPSC Commissioners, and the
CLECs — complicate this considerably. Before explaining their position, however, we
think a simple analogy may be helpful.
Suppose you lived next to a public park that had no electrical hook-up of its own.
And suppose that the village elders decided that, rather than installing an electrical hook-
up in the park, they would allow park-goers to hook up to your electricity at your house
(and because they compensated you enough to cover the added electricity usage plus a
tidy profit, you eagerly agreed). Thereafter, when park-goers arrived at the park needing
electricity, you allowed them to plug into an electrical outlet in your garage. This outlet
is the “interconnection facility.”
But, after a few days of having park-goers trample across your yard and enter
your garage to plug into the electrical outlet on the wall inside the garage, you decide to
buy one of those big orange extension cords, plug it into the outlet in your garage, and
run it across your yard and into the park. This makes access to the electricity closer to
(and hence more convenient for) the park-goers, and they are no longer trampling your
yard or entering your garage. And note, because park-goers can still plug into the outlet
in your garage if they want to (i.e., they need not plug into the big orange extension cord
if they don’t want to), the big orange extension cord is an “entrance facility” and the
outlet in your garage remains the “interconnection facility.” Even if all the park-goers
are plugging into the big orange extension cord, the cord is still an entrance facility. The
interconnection facility remains the outlet in the garage so long as the park-goers could
plug in there if they wanted to.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 14
As more park-goers arrive, you might put out a second big orange extension cord
(i.e., a second “entrance facility”). And suppose that, at this point, all the park-goers are
happily plugged into the big orange extension cords. Now suppose that a couple more
park-goers arrive with their own big orange extension cords (“entrance facilities”),
wanting to hook up to your electricity (as is their right). So, you get one of those surge
protectors with six or eight plug-ins, plug it into the outlet in the garage, and plug your
two big orange extension cords, as well as the two new park-goers’ extension cords, into
this surge protector. The big orange extension cord would still be the entrance facility,
but the outlet in the surge protector would now be the “interconnection facility.” By
forcing the park-goers to plug into the surge protector (rather than the wall outlet), you
have moved the “interconnection facility.” (And here is a critical aside: if you forced
the park-goers to plug in to the big orange extension cord — and forbade them from
plugging into the wall outlet (or the surge protector) — the big orange extension cord
would become the “interconnection facility.” But, to ease the analogy, let’s just assume
you allowed them to plug into the surge protector.9)
Now, some time later, you need a big orange extension cord for some other
purpose (let’s say, Christmas lights), but the park-goers are using your extension cords.
So, you tell the park-goers that you are either going to take the extension cords back or
charge for their use, so that you can buy yourself a new one. But the park-goers
complain to the village that they were promised electricity and now you won’t give it.
The village elders think it over and decide that you are right: the electricity they
promised did not include free use of your big orange extension cords, so they say:
9
Of course, this aside is the very aside that confuses this whole situation in the present case —
the FCC, MPSC, CLECs, and dissent argue (and two courts have agreed) that an “entrance facility” is an
“interconnection facility” just because a CLEC can, could, or would use it to interconnect to the ILEC
network. That is, they would argue that a big orange extension cord is an “interconnection facility”
because the park-goers could or would use it to interconnect with the electrical outlet in the garage. But
all of that misses the point, which is not whether the park-goers “can” use it to interconnect, but whether
they “must.” If you, as the homeowner, had said that they may plug into the surge protector, then the big
orange extension cord is just an “entrance facility.” But, if you had said they must plug into the big orange
extension cord, then the big orange extension cord becomes the “interconnection facility” and,
consequently, the park goers may plug into it for free, under your agreement with the village to provide
them with electricity. So it goes with the ILECs and CLECs — only when the ILEC says that the CLEC
must connect at the entrance facility would that entrance facility become an interconnection facility (and,
consequently, require TELRIC rates). All of this is beside the point, however, because nothing in the
record suggests that Michigan Bell has told the CLECs that they must connect at a purported entrance
facility.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 15
138. There is nothing special about big orange extension cords. If you park-
goers don’t like the rate that the homeowner is going to charge you to use
her extension cords (i.e., ‘entrance facilities’), then bring your own (or
lease one from another park-goer who has brought his or her own, if you
can get a better deal).
139. Other park-goers are certainly doing that (i.e., bringing their own
extension cords).
140. And, rest assured, if you bring your own big orange extension cord (i.e.,
‘entrance facility’), the homeowner must still let you plug it into her
surge protector (i.e., her ‘interconnection facility’) at no cost, just as you
were doing before.
141. Therefore, the homeowner need not provide big orange extension cords
(i.e., ‘entrance facilities’).
That all seems simple enough.
And it appears just as simple when we apply this analogy to the facts of our case.
Michigan Bell offers each CLEC both an interconnection facility and an entrance
facility. So long as Michigan Bell offers an interconnection facility at TELRIC rates
(and in compliance with 47 C.F.R. § 51.305), it may charge competitive rates for the use
of its entrance facilities. Correspondingly, the CLEC may connect directly to the
interconnection facility (at TELRIC rates), connect to Michigan Bell’s entrance facility
(at Michigan Bell’s competitive rate), or connect to a third party’s entrance facility (at
the third party’s rate).
But the MPSC Commissioners, the CLECs, the dissent, and the two Circuit
Courts to have considered this all see it another way. They explain that entrance
facilities are used for two purposes: (1) to carry communications among CLEC
customers (i.e., backhauling); and (2) to interconnect the CLEC to the ILEC network.
And, relying on this — otherwise unmentioned10 — premise, they argue that ¶¶ 137,
10
The dissent contends that “backhauling” is not only mentioned, but that certain footnotes in the
TRRO, ¶ 138 n.389 and ¶ 141 n.396, “draw that precise distinction” between backhauling and
interconnection. Dis. Op. at ¶ 14. This is an overstatement of the TRRO and a misapprehension of the
TRO as it is relied upon in those footnotes. First, the footnotes, which state in their entireties:
¶138, n389. [TRO, 18 FCC Rcd. 16978] at 17204-05, para. 367. The record contains
evidence that competitive LECs are able to obtain entrance facilities from third-party
providers. See NuVox Comments, Exh. A, Declaration of Keith Coker (NuVox Coker
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 16
138, and 141 say that the ILEC can charge competitive rates for the first use (i.e.,
backhauling), but ¶ 140 says that the ILEC must charge TELRIC rates for the other use
(i.e., interconnection with the ILEC network). So, to complete our analogy, suppose a
park-goer had taken the homeowner’s big orange extension cord, strung it over a tree
branch, and connected a light to the dangling end (resulting in a light dangling from the
tree branch, via the big orange extension cord). Under this separate-use theory, the
homeowner could charge the park-goer to use the extension cord for the purpose of
holding the light off the ground, but not for conveying the electricity to that light.11
This separate-use theory requires several assumptions, none of which is easily
defended. First, it requires us to assume that the FCC used two separate terms —
Decl.) at para. 3 (“[W]here available, NuVox utilizes third-party providers for backhaul
from NuVox collocation arrangements to NuVox switches.”)
¶ 141 n.396. See Triennial Review Order, 18 FCC Rcd at 17204, para. 367 (“[T]he
economics of dedicated facilities used for backhaul between networks are sufficiently
different from transport within an incumbent LEC’s network that our analysis must
adequately reflect this distinction.”) We thus reject commenters’ suggestions that
entrance facilities should be subject to the same test that applies to dedicated transport
between incumbent LEC facilities. See AT&T Comments at 50-52; Loop-Transport
Coalition Comments at 87; ATX, Bayring, et al. Reply at 48; McLeod Reply at 37.
TRRO, 20 FCC Rcd. 2533, 2005 WL 289015 (Feb. 4. 2005) (emphasis added).
The first thing to note is that these two, seemingly incidental, references to backhauling — within
the context of six paragraphs and 23 footnotes — are hardly the paragons of “precise distinction” the
dissent suggests. The second thing to note is that the FCC’s reference to backhauling in the TRO ¶ 367
was not in support of a separate-use theory, but rather, was in support of the separate-facilities scheme we
have explained throughout this opinion. Specifically, the FCC used this distinction to support its position
(since reversed) that entrance facilities are not even part of the ILEC’s network, and therefore would not
require any impairment analysis at all. See TRO ¶ 366 n. 1116 (“Our determination here effectively
eliminates ‘entrance facilities’ as [unbundled network elements] and, therefore, moots the [FCC’s pending
notice of proposed rule making] insofar as it proposes limitations on obtaining entrance facilities as
UNEs.”) (overruled by USTA II, 539 F.3d 554).
11
At this point, as we are about to abandon this big-orange-extension-cord analogy, we invite you
to return momentarily to the foregoing paragraph, in which we restated TRRO ¶¶ 138-141 in terms of this
analogy, and attempt to reconcile this separate-use theory with the statement in those paragraphs (138-
141). It cannot be done. Similarly, the backhauling separate-use theory simply cannot be reconciled with
the plain language of TRRO ¶¶ 138-141.
We should also, at this point, pause to address the dissent’s two corollaries to this hypothetical:
its “meet-point” and its “collocation” examples. The first is incorrect and the second is inapposite. The
dissent says that “[a]n incumbent’s portion of a meet-point facility, it turns out, is merely one manifestation
of an entrance facility,” Dis. Op. at ¶ 8, but that is simply untrue. An ILEC’s portion of a meet-point
facility — as described by the dissent and the regulations — is an “interconnection facility,” whereas the
CLEC’s portion of the meet-point is an “entrance facility.” The meet-point example fits perfectly within
our framework. (For further explanation, see the next footnote.) The dissent also cites the “collocation”
example. This is one of virtually limitless examples of an analogy being an imperfect fit, as would be the
case with any analogy. As for the question of whether an interconnection facility is distinct and different
from an entrance facility, however, this collocation example is wholly irrelevant.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 17
“entrance facility” and “interconnection facility” — to describe the same exact wire,
without any explanation why.12
Second, it requires us to assume that the FCC used “entrance facility” to refer to
a particular use of that wire (i.e., for purposes of transporting data among CLEC
customers (backhauling), rather than between the CLEC and ILEC),13 even though the
12
This assumption is the crux of the dissent’s principal argument — that interconnection facilities
and entrance facilities are really one and the same because “[e]ntrance facilities come within the ordinary
meaning of a ‘technically feasible method of obtaining interconnection.’” Dis. Op. at ¶ 7 (quoting 47
C.F.R. § 51.321(a)). That is, the dissent “reasons” that because ILECs must “provide . . . any technically
feasible method of obtaining interconnection” at cost-based rates, see 47 C.F.R. § 51.321(a), and because
entrance facilities are a technically feasible method of obtaining interconnection, the ILECs must therefore
provide entrance facilities at cost-based rates.
We reject this argument for at least three reasons. First, this directly contradicts 47 C.F.R.
§ 51.319(e)(2)(i), which says that an ILEC is not obligated to provide entrance facilities at cost-based rates.
Second, at least in our view, entrance facilities are not actually a “technically feasible means of obtaining
interconnection” because they do not connect the CLEC with the ILEC network directly; entrance
facilities, when used, connect the CLEC with the interconnection facility (i.e., ILEC ø Interconnection
Facility ø Entrance Facility ø CLEC). And finally, even if entrance facilities were a technically feasible
method of interconnection, 47 C.F.R. § 51.321(a) does not require the ILEC to provide an entrance facility
rather than some other (“any”other) technically feasible means. The dissent’s logic is flawed. Suppose,
for example, a public school system was obligated to provide school children with a feasible means of
transportation to and from school. A limousine is a feasible means of transportation — indeed, some
children, at least on television, take limousines to and from school. So, by the dissent’s logic, the school
system would be obligated to provide limousines because limousines are a feasible means of transportation.
13
The dissent eagerly accepts this assumption, suggesting that the TRO and the TRRO should be
read in conjunction and arguing that the TRO establishes the separate-use distinction between backhauling
and interconnection. Dis. Op. at ¶ 15.
“Why [else],” the dissent exclaims, “would the FCC clutter its unbundling analysis [in the TRO]
by stressing the distinction between backhauling and interconnection?” Dis. Op. at ¶ 15 (citing TRO
¶ 365). If we treat this as a real inquiry, and not a rhetorical argument, the answer is plain. The FCC took
an entirely different approach in the TRO — an approach that was later rejected by USTA II and
reconsidered in the TRRO — in which it held that entrance facilities (no matter their use) were outside of
the ILEC’s network, so no impairment analysis was even necessary.
In the paragraph cited by the dissent (TRO ¶ 365), the FCC drew a distinction between
interconnection facilities and entrance facilities, albeit without using those terms. In fact, the FCC did not
use the phrase “interconnection facility” anywhere in the TRO; that is a phrase new to the TRRO. In the
TRO, the FCC referred to what it now calls “interconnection facilities” as “interconnection points” (see,
e.g., TRO ¶¶ 7, 350 n.1058, 367 n.1120), designated certain types of these points (e.g., single point of
interconnection (SPOI), minimum point of entry (MPOE)), and grouped these points by description as “the
facilities that incumbent LECs explicitly must make available for section 251(c)(2) interconnection” (TRO
¶ 365). The FCC did not use the phrase “interconnection points” anywhere in the TRRO; it used the phrase
“interconnection facilities.” See, e.g., TRRO ¶ 140. On the other side of that distinction, the FCC — in
the TRO — described “entrance facilities” as “transmission facilities connecting incumbent LEC networks
to competitive LEC networks for the purpose of backhauling traffic.” TRO ¶ 365. So, the distinction
between backhauling and interconnection is, again, not between uses but between facilities. The paragraph
states, in pertinent part:
[I]n order to access UNEs, including transmission between incumbent LEC switches or
wire centers, while providing their own switching and other equipment, competitive
LECs require a transmission link [i.e., an entrance facility] from the UNEs on the
incumbent LEC network [i.e., interconnection facility] to their own equipment located
elsewhere. Competitive LECs use these transmission connections between incumbent
LEC networks and their own networks [i.e., entrance facilities] both for interconnection
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 18
FCC has never defined entrance facility that way. See TRRO ¶ 136 (“entrance facilities
[are] the transmission facilities that connect competitive LEC networks with incumbent
LEC networks”); 47 C.F.R. § 51.319(e)(2)(i) (“Entrance facilities [are] . . . dedicated
transport that does not connect a pair of incumbent LEC wire centers”).
Third, it requires us to assume that the FCC used the term “interconnection
facility” to refer to a particular use of that wire (i.e., for purposes of transporting data
between the CLEC and ILEC, rather than among CLEC customers), even though neither
the FCC nor any court has ever defined interconnection that way. See Local Competition
Order, 11 FCC Rcd. 15499, 1996 WL 452885, ¶ 176 (Aug. 8, 1996) (“the term
‘interconnection’ under section 251(c)(2) refers only to the physical linking of two
networks”); AT&T Corp. v. FCC, 317 F.3d 227, 234 (D.C. Cir. 2003) (“to ‘interconnect’
and to exchange traffic have distinct meanings”; interconnect “refers only to ‘facilities
and equipment,’ not to the provision of any service”); Competitive Telecom. Ass’n v.
FCC, 117 F.3d 1068, 1071-72 (8th Cir. 1997) (“Congress intended ‘for the transmission
and routing of telephone exchange service and exchange access’ only to describe what
the interconnection, the physical link, would be used for. . . . By its own terms, this
reference [to interconnection] is to a physical link, between the equipment of the carrier
seeking interconnection and the LEC’s network.”).
and to backhaul traffic. Unlike the facilities that incumbent LECs explicitly must make
available for section 251(c)(2) interconnection [i.e., interconnection facilities], 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 [i.e., entrance facilities].
TRO ¶ 365 (footnote omitted). This same paragraph would read as follows if it were translated into the
terms of the TRRO (i.e., using the phrases “entrance facility” and “interconnection facility”):
In order to access the ILEC network, CLECs need a transmission link from the ILEC’s
interconnection facility to their own equipment located elsewhere, and this is called an
“entrance facility.” CLECs use these entrance facilities both for interconnection with
the interconnection facility and to backhaul traffic. Unlike “interconnection facilities,”
which ILECs must make available for interconnection, the Act does not require ILECs
to provide these “entrance facilities.”
So, returning to the dissent’s question: “Why . . . would the FCC clutter its unbundling analysis
by stressing the distinction between backhauling and interconnection?” Dis. Op. at ¶ 15 (citing TRO
¶ 365). The answer is clear: to describe and differentiate two types of facilities for which it had not yet
established names. And, “Why would [the FCC] underscore the incumbents’ continuing obligation to
provide interconnection facilities?” Dis. Op. at ¶ 15. Because interconnection facilities and entrance
facilities are different things.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 19
Finally, it requires us to assume that when Congress used the phrase “provide . . .
interconnection with the [ILEC]’s network,” 47 U.S.C. § 251(c) (emphasis added),
Congress actually meant that the ILEC is obligated to “lease a physical facility (or wire)”
to the CLEC rather than merely “make a plug-in available” for connection with the
CLEC’s facilities and equipment, even though this is an unnatural reading of the phrase,
with no support in the statute.
In Illinois Bell Telephone Co. v. Box, 526 F.3d 1069, 1071-72 (7th Cir. 2008),
the Seventh Circuit considered this issue and held that “[w]hat the FCC said in ¶ 140 is
that ILECs must allow use of entrance facilities for interconnection at ‘cost-based
rates.’” But, the Seventh Circuit began its analysis by assuming the very question to be
decided, stating:
In the [TRRO], the FCC concluded that CLECs do not need entrance
facilities for backhauling and should build their own equipment for
handling CLEC-to-CLEC traffic. ILECs need not provide unbundled
network elements to CLECs that can serve customers without
‘impairment’ through their own network elements. No one contests the
FCC’s conclusion in this litigation.
Id. at 1071 (citation omitted; emphasis added). But, these two14 qualifiers — “for
backhauling” and “for handling CLEC-to-CLEC traffic” — are nowhere to be found in
the text of the TRRO passage at issue here. The Seventh Circuit added these, without
explanation or justification.
If we remove those qualifiers from this passage, we have an interpretation of
¶ 140 that is both drastically different from the Seventh Circuit’s and true to the plain
language of the TRRO:
In the TRRO, the FCC concluded that CLECs do not need [ILEC-
provided] entrance facilities for backhauling and should build their own
14
Obviously, this is actually just one qualifier, inasmuch as “for handling CLEC-to-CLEC traffic”
is the definition of “backhauling,” and why the Seventh Circuit used two separate labels is unclear — other
than as a show of solidarity with the FCC and its claim that it used two separate labels for the same wire:
“entrance facility” and “interconnection facility.” In any event, we note them separately here to emphasize
that neither term is actually included in the TRRO passage at issue here, nor is either term clearly
connected to this passage when used elsewhere in the TRRO.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 20
[entrance-facility] equipment for handling CLEC-to-CLEC traffic.
ILECs need not provide unbundled network elements to CLECs that can
serve customers without ‘impairment’ through their own network
elements. No one contests the FCC’s conclusion in this litigation.
Thus, we cannot join the Seventh Circuit’s interpretation of the TRRO.
Using its qualifier-filled interpretation of ¶ 140 of the TRRO, the Seventh Circuit
declared that this is the proper reading of the TRRO because this is what the FCC said
in the TRRO. But the Seventh Circuit’s “reasoning” is entirely circular. It said:
AT&T protests that [by making entrance facilities available at TELRIC
rates to the CLECs for interconnection, the state commission] nullifies
the FCC’s order. What’s the point of specifying that CLECs cannot
demand access to entrance facilities as unbundled network elements,
AT&T inquires, if state commissions can turn around and require the
same access at the same price anyway? The answer . . . is that CLECs do
not enjoy the ‘same’ access to entrance facilities under the state
commission’s decision as they did before the FCC’s order. Until then
CLECs could use entrance facilities for both interconnection and
backhauling. Under the state’s order, CLECs use entrance facilities
exclusively for interconnection, just as the FCC said in ¶ 140.
Id. (emphasis added). But once we omit the unexplained and unjustified qualifiers, and
thereby remove the artificial distinction that they create (between backhauling and
interconnection), it becomes clear that the act of making entrance facilities available at
TELRIC rates for interconnection (but not backhauling) is insupportable inasmuch as
its sole support (i.e., TRRO ¶ 140) actually says no such thing. Consequently, we reject
both the premise and the conclusion in Illinois Bell.
In Southwestern Bell Telephone, L.P. v. Missouri Public Service Commission,
530 F.3d 676, 683-84 (8th Cir. 2008), the Eighth Circuit considered this issue and
reached the same conclusion as the Seventh Circuit. After acknowledging the clear
statement in the TRRO that CLECs are not impaired without access to entrance facilities,
the Eighth Circuit turned right around and asserted that this finding “does not, however,
alter the right of CLECs to obtain interconnection facilities pursuant to § 251(c)(2) for
transmission and routing of telephone exchange service and exchange access service,
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 21
i.e., CLEC to ILEC and ILEC to CLEC traffic.” Id. Without further explanation or
justification (other than a “see” cite to Box, 526 F.3d at 1071-72), the court asserted:
The FCC determined [that] when a CLEC uses entrance facilities to carry
traffic to and from its own end users, i.e., backhauling or CLEC to
CLEC, the CLEC is not entitled to obtain entrance facilities as UNEs at
TELRIC rates. If a CLEC needs entrance facilities to interconnect with
an ILEC’s network, it has the right to obtain such facilities from the
ILEC. Thus, CLECs must be provided access at TELRIC rates if
necessary to interconnect with the ILEC’s network.
Id. But, as with Box, this conclusion is only true if the (assumed) premise is true, and
it is not — the FCC made no backhauling distinction in the TRRO and the FCC has not
said that CLECs have a right to entrance facilities for some purposes but not others. The
FCC has said that ILECs have no obligation to provide entrance facilities at TELRIC
rates. See 47 C.F.R. § 51.319(e)(2)(i).
We do not find these two cases persuasive. The most plausible reading of the
plain language of the TRRO is that the ILEC must allow the CLEC to connect its
network to the ILEC’s network, and may not charge the CLEC more than TELRIC rates
for this connection. If the ILEC requires the CLEC to connect at some point other than
directly into its network, then the link (or “bridge” if the word “bridge” provides a better
image) between the ILEC’s designated connection point and the ILEC’s network is what
TRRO ¶ 140 refers to as an “interconnection facility,” and the ILEC may charge only
TELRIC rates for the use of that (or any) interconnection facility.
Any facility (link, “bridge,” etc.) outside of the ILEC’s designated connection
point (i.e., the link that connects the CLEC to the ILEC’s designated connection point,
and from there to the ILEC network via the ILEC’s interconnection facility), is not itself
an “interconnection facility”; it is an “entrance facility.” Obviously, the CLEC would
ultimately be using the entrance facility to connect its network with the ILEC’s network
(through the designated point, via the interconnection facility), but that is wholly
immaterial. The material distinction is not between interconnection and some other use
(e.g., backhauling); the material distinction is between the ILEC’s side of the designated
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 22
connection point (i.e., the “interconnection facility”) and the CLEC’s side of the
designated connection point (i.e., the “entrance facility”).
Moreover, the ILEC most assuredly has no obligation to provide any entrance
facility and the CLEC has no obligation to use the ILEC’s entrance facility (the CLEC
can connect directly to the interconnection facility, rent someone else’s entrance facility,
or build its own entrance facility). Of course, if the ILEC chooses to provide an entrance
facility, it must provide it in addition to the interconnection facility, not instead of the
interconnection facility (as that would effectively change the designated connection
point and transform the purported “entrance facility” into an “interconnection facility”).
And, if the CLEC chooses to use the ILEC’s entrance facility, it must pay the rates
determined by the ILEC, in competition with other providers.
As we understand the situation in the case before us, the ILEC (Michigan Bell)
offers its CLECs an interconnection facility at TELRIC rates and entrance facilities at
competitive rates, which is in perfect accordance with the plain language of the TRRO.
The MPSC ordered Michigan Bell to offer the CLECs the use of its entrance facilities
at TELRIC rates, and based this order on its mistaken belief that TRRO ¶ 140 requires
Michigan Bell to treat its entrance facilities as interconnection facilities any time the
CLECs ultimately use them for interconnection. The district court rejected the MPSC’s
reading of the TRRO, and we agree with the district court’s view.
III.
For all of the foregoing reasons, we AFFIRM the judgment of the district court.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 23
__________________
DISSENT
__________________
SUTTON, Circuit Judge, dissenting. The majority admirably pieces together the
statutory, regulatory and technical components of this complicated case. Together, the
majority concludes, they show that the duty of the incumbent telecommunication
provider, Michigan Bell, “to provide . . . interconnection with [its] network” to
competitors at cost-based rates, 47 U.S.C. § 251(c)(2), requires only that Michigan Bell
provide competitors with a place to plug into its local telephone network and that
“entrance facilities” fall outside of this interconnection obligation. That may be a
reasonable interpretation. So too, however, is the FCC’s competing interpretation, one
premised on an interpretation of its own regulations and one that we must respect as a
result. See Auer v. Robbins, 519 U.S. 452, 461 (1997). I accordingly respectfully
dissent.
Prior to the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56,
incumbent local telephone companies, such as Michigan Bell, enjoyed a natural
monopoly. The high fixed costs of recreating a local telephone network, including
running wires to each home and business in a community, together with the low
marginal cost of operating a pre-existing network gave incumbents “an almost
insurmountable competitive advantage.” Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467,
490 (2001). To combat these monopolies, the 1996 Act mandates that incumbents share
their network with competitors at cost-based rates. See id. at 489; AT&T Corp. v. Iowa
Utils. Bd., 525 U.S. 366, 371 (1999).
As part of this sharing obligation, incumbents must lease certain elements of their
network to competitors on an “unbundled”—a la carte—basis and must do so at cost-
based rates. 47 U.S.C. § 251(c)(3), (d)(2). That allows a competitor to connect its
network with other phone networks, to provide enhanced services to its customers or to
expand its network so it can reach a broader potential customer base. See id. § 153(29);
Triennial Review Order, 18 F.C.C.R. 16978 ¶ 59 (2003); 47 C.F.R. § 51.319(a). The
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 24
upshot of this duty is that, if a competitor wishes to offer phone service to everyone in
a given community without incurring the up-front costs of running its own wire to each
potential customer, the Act and implementing regulations facilitate the entrant’s efforts
by requiring the incumbent to offer these services on unbundled terms and at cost-based
rates.
The Act imposes a related, but narrower, sharing obligation, one that also must
be provided at cost-based rates. Incumbents must “provide . . . interconnection with
[their] network” to competitors so customers on one network can seamlessly call
customers on the other network. 47 U.S.C. § 251(c)(2); see id. § 251(d)(1); 47 C.F.R.
§ 51.5 (defining interconnection as the “linking of two networks for the mutual exchange
of traffic”); FCC Br. at 4. In the absence of this obligation, no rational consumer would
switch from the large incumbent to the competing entrant, at least without a steep
discount. Who wants a local phone service that connects customers to just a handful of
other individuals in the community? See Verizon Commc’ns, 535 U.S. at 490. By
requiring cost-based rates for this service, the Act ensures that incumbents do not charge
competition-dampening rates for interconnection, a not insignificant risk given that
entrants need interconnection more than incumbents do.
Which brings me to “entrance facilities,” the part of the network of the
incumbent, Michigan Bell, at issue here. Entrance facilities physically link
telecommunications networks together, see Triennial Review Remand Order (TRRO),
20 F.C.C.R. 2533 ¶¶ 136–39 (2005), and competitors use an incumbent’s entrance
facilities for two purposes: interconnection and backhauling. See Triennial Review
Order ¶ 365. When used for interconnection, entrance facilities route traffic between
one of the competitor’s customers and one of the incumbent’s customers. When used
for backhauling, entrance facilities route traffic between two of the competitor’s
customers, likely because the competitor leases some elements of the incumbent’s
network, rather than between a customer of the competitor and a customer of the
incumbent. See id. ¶¶ 365, 367.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 25
In deciding what incumbents may charge for the use of their entrance facilities,
the FCC interprets its regulations to draw a distinction. On one side of the line,
incumbents must lease their entrance facilities to competitors at cost-based rates when
they use the facilities for interconnection. On the other side, incumbents may charge
market-based rates, or not lease the facilities at all, when competitors use the facilities
for backhauling. See FCC Br. at 15–17, 20. Everyone (at least everyone involved in this
case) agrees that the FCC correctly concluded that incumbents may charge market-based
rates for backhauling. What divides the parties is whether the FCC correctly concluded
that incumbents cannot do the same for interconnection. In answering this question, we
must keep in mind that Congress charged the FCC with administering § 251, see 47
U.S.C. § 251(d)(1), and the FCC wrote the regulations at issue, all of which means that
the FCC’s interpretation binds us unless it flouts the regulations’ text. See Auer, 519
U.S. at 461.
The line drawn by the FCC permissibly interprets its own regulation. In
elaborating on § 251(c)(2)’s duty to “provide . . . interconnection,” the FCC’s regulation
says that incumbents must provide “any technically feasible method of obtaining
interconnection” at cost-based rates. 47 C.F.R. § 51.321(a). Entrance facilities come
within the ordinary meaning of a “technically feasible method of obtaining
interconnection.” They are “designed for the very purpose of linking two carriers’
networks.” Ill. Bell Tel. Co. v. Box, 526 F.3d 1069, 1072 (7th Cir. 2008). And that is
how competitors use them—to bridge the gap between their network and an
interconnection point within the incumbent’s network so that the two networks can
mutually exchange traffic. See U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 586 (D.C. Cir.
2004).
In providing illustrative examples of an incumbent’s interconnection duties in
§ 51.321, the FCC confirms that the regulation uses the phrase “method of obtaining
interconnection” in its ordinary sense—one that applies to entrance facilities. One
example says that incumbents upon request must interconnect with competitors through
meet point facilities, see 47 C.F.R. § 51.321(b)(2), which requires the incumbent and
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 26
competitor to build transmission facilities from their respective networks to a designated
meet point and to link the two transmission facilities together at that point “for the
mutual exchange of traffic,” Local Competition Order, 11 F.C.C.R. 15499 ¶ 553 (1996).
An incumbent’s portion of a meet point facility, it turns out, is merely one manifestation
of an entrance facility, as entrance facilities are “the transmission facilities that connect
competitive LEC networks with incumbent LEC networks.” See TRRO ¶ 136. Another
example—dealing with collocation, which is installing and maintaining equipment for
use solely by the competitor at an incumbent’s physical facilities, see 47 C.F.R.
§ 51.5—also shows that an incumbent’s duty to provide methods of obtaining
interconnection covers facilities that aid in bridging the gap between two networks. See
47 U.S.C. § 251(c)(6) (mandating that incumbents allow physical or virtual “collocation
of equipment necessary for interconnection”); 47 C.F.R. § 51.321(b)(1).
To put all of this in context, it might help to return to the majority’s extension-
cord analogy. The meet-point example is akin to saying that the homeowner sometimes
must provide a park-goer with an extension cord, at a cost-based price, that links the
outlet in the garage with the park-goer’s extension cord, rather than forcing the park-goer
to run an extension cord all the way from the park to the garage or forcing the park-goer
to pay the homeowner market-based rates for the use of one of its cords. The collocation
obligation is akin to saying that the homeowner sometimes must let park-goers store an
extension cord on a reel in the garage and access the garage when they want to extend
the cord from the garage to the park. As these examples show, an incumbent’s
interconnection duty encompasses more than providing competitors with an outlet to
plug into.
The Triennial Review Remand Order does not undermine the FCC’s position.
The TRRO represents the FCC’s fourth attempt to promulgate valid unbundling
regulations, see Covad Commc’ns Co. v. FCC, 450 F.3d 528, 531 (D.C. Cir. 2006), and
it aims to satisfy the D.C. Circuit’s concerns in setting aside the FCC’s previous
unbundling regulations, see TRRO ¶¶ 1–4, 13, 19–20. Nearly a quarter of the order
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 27
clarifies the FCC’s overarching unbundling analysis and not one paragraph discusses
how the FCC analyzes interconnection obligations. See id. ¶¶ 20–65.
The one section that mentions entrance facilities confirms the TRRO’s focus on
unbundling, not interconnection. The section analyzes whether competitors would be
“impair[ed]” without unbundled access to entrance facilities under § 251(c)(3), and it
concludes that they would not be. See TRRO ¶¶ 136–41; see also 47 U.S.C. § 251(d)(2).
Yet, as the FCC points out, an impairment analysis has no role to play under § 251(c)(2),
see 47 U.S.C. § 251(d)(2); FCC Br. at 16, and the FCC has never, to my knowledge,
considered impairment when analyzing an incumbent’s interconnection obligations. See
Ill. Bell, 526 F.3d at 1072 (noting that whether an incumbent can charge market-based
rates for interconnection “is not related to the scope of an [incumbent’s] obligations
under § 251(c)(3) to furnish unbundled network elements”). It would be surprising,
then, if the TRRO exempted entrance facilities from the pre-existing obligations of 47
C.F.R. § 51.321(a) through a novel analysis without comment.
The TRRO’s sole mention of interconnection in the context of entrance facilities
instead sounds a cautionary note: No one should read the FCC’s categorical unbundling
analysis under § 251(c)(3) as affecting incumbents’ interconnection duties under
§ 251(c)(2). See TRRO ¶ 140 (stating “our finding of non-impairment with respect to
entrance facilities does not alter the right of competitive LECs to obtain interconnection
facilities pursuant to section 251(c)(2)”). This cautionary note makes perfect sense if,
as the FCC and both courts of appeals to address this issue have concluded, entrance
facilities used for interconnection fall within § 251(c)(2)’s interconnection obligation.
See Ill. Bell, 526 F.3d at 1071–72 (“What the FCC said in ¶ 140 is that [incumbents]
must allow use of entrance facilities for interconnection at ‘cost-based rates’.”); Sw. Bell
Tel., L.P. v. Mo. Pub. Serv. Comm’n, 530 F.3d 676, 684 (8th Cir. 2008).
The regulations promulgated by the TRRO, moreover, discuss only unbundling
obligations. They say that “in accordance with section 251(c)(3)”—the provision
imposing the unbundling requirement—an incumbent “is not obligated to provide a
requesting carrier with unbundled access” to entrance facilities. 47 C.F.R. § 51.319(e)
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 28
(emphasis added); see also TRRO, 20 F.C.C.R. at 2682. This speaks only to an
incumbent’s unbundling obligation, not its narrower, independent duty to “provide . . .
interconnection” under § 251(c)(2). Michigan Bell disagrees, claiming the regulation
“unequivocal[ly]” states that incumbents have no obligation to provide entrance
facilities, period. Michigan Bell Br. at 23. But this turns the phrase “with unbundled
access” into a useless appendage. See Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47,
59–60 (2007) (noting general rule that courts should give effect to all words in a
provision).
Michigan Bell reads the TRRO differently. The TRRO, it says, draws no
distinction between the functions of an entrance facility (backhauling versus
interconnection), but instead draws a distinction between two distinct and mutually
exclusive types of facilities (entrance versus interconnection). The text of ¶¶ 136–41,
it is true, does not distinguish between backhauling and interconnection. But the
footnotes to those paragraphs draw that precise distinction. See TRRO ¶¶ 138 n.389, 141
n.396. And even if the FCC had not drawn this functional line, that would not eliminate
ambiguity about the point; the silence would create ambiguity, particularly since the
FCC consistently has drawn functional lines when implementing the 1996 Act. See
Triennial Review Order ¶¶ 365–67; Local Competition Order ¶ 553. Either way, Auer
deference applies to the FCC’s position that those paragraphs draw a functional line that
exempts incumbents only from the obligation to lease their entrance facilities at cost-
based rates when competitors use those facilities for backhauling, as opposed to
interconnection.
Michigan Bell’s competing interpretation also fits awkwardly with the TRRO and
its predecessor, the Triennial Review Order. Why, if that interpretation is correct, would
the FCC clutter its unbundling analysis by stressing the distinction between backhauling
and interconnection? See Triennial Review Order ¶ 365. And why would it underscore
the incumbents’ continuing obligation to provide interconnection facilities? See id.;
TRRO ¶ 140. These points of emphasis make little sense if entrance facilities never
function as § 251(c)(2) interconnection facilities.
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 29
To support its mutual exclusivity theory, the majority notes that incumbents may
choose whether a facility counts as an entrance facility or an interconnection facility.
If the incumbent requires that competitors interconnect at that facility, then it is an
interconnection facility. But if the incumbent provides a facility that bridges the gap
between the incumbent-designated interconnection point and the competitor’s network,
then it counts as an entrance facility. This premise, however, does not square with
§ 251(c)(2), which requires incumbents to “provide . . . interconnection” “at any
technically feasible point within [its] network.” 47 U.S.C. § 251(c)(2) (emphasis added);
see also Local Competition Order ¶ 209 (stating that § 251(c)(2) allows competitors “to
select the points in an incumbent[’s] . . . network at which they wish to deliver traffic”).
And in the absence of this premise, I see no workable way to distinguish between these
two supposedly distinct and mutually exclusive types of facilities.
One more point. While the majority’s principal objection to this analysis is that
the regulation is plain as day and thus leaves no room for administrative deference, it
also suggests two reasons for ignoring Auer deference altogether. First, it cites a
Seventh Circuit case, which suggests that agency amicus briefs (like the one filed here)
should get Auer deference only at the Supreme Court, not at the court of appeals. Until
a case reaches the Supreme Court, goes the view, agency briefs represent “unreviewed
staff decisions,” and Congress could not have meant to delegate “the power to make law
to fill gaps in” the law to low-level staff. Keys v. Barnhart, 347 F.3d 990, 993–94 (7th
Cir. 2003).
A deference doctrine that turns on whether a brief was filed in the United States
Supreme Court or a court of appeals has little to commend it. An “inferior” appellate
court, U.S. Const. art. III § 1, has just as many reasons, if not more, to learn the agency’s
interpretation of one of its regulations in the course of resolving a dispute between two
private parties before it issues a decision rather than after. This case is a perfectly good
example. The regulations are intricate and complex, and as a result we called for the
views of the FCC in order to understand how the agency construed its regulations and
to make sure we were not missing something in the process. The Seventh Circuit may
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 30
or may not be right that, when a court of appeals invites an agency to take a position in
a given case, it can expect nothing more than “unreviewed staff decisions.” As for
myself, I doubt it, and if I am wrong that suggests a management problem, not a proper
view of how agencies should operate. It seems likely that agencies take their amicus
briefs—particularly those filed at the request of a court of appeals—at least as seriously
as their more frequent opinion letters, which also receive Auer deference, see Ford
Motor Credit Co. v. Milhollin, 444 U.S. 555, 563–64 (1980). As agencies must well
appreciate, moreover, lower courts reap the same benefits as the Supreme Court from an
agency’s “fair and considered judgment,” Auer, 419 U.S. at 462, including the
advantage of the agency’s “unique expertise and policymaking prerogatives,” Martin v.
Occupational Safety & Health Review Comm’n, 499 U.S. 144, 151 (1991). In any event,
the Supreme Court has strongly hinted that Auer deference does not turn on whether an
agency’s position was prepared by its staff or its head. See Ford Motor Credit Co., 444
U.S. at 566 n.9. There is, in short, no reason why an agency brief—particularly one filed
at the request of a court—becomes less authoritative because it is filed with a court
based in Cincinnati, Ohio rather than one based in Washington, D.C.
Second, the majority suggests that the TRRO does not deserve Auer deference
because it is an interpretive rule, not a legislative one. I disagree with the majority’s
characterization of the TRRO and its suggestion that interpretive rules do not deserve
Auer deference. The FCC had a formal notice-and-comment period before issuing the
TRRO, and the TRRO concludes by adopting seven pages of amendments to the Code
of Federal Regulations. See TRRO ¶¶ 18–19, 239–251, App’x A, App’x B. The TRRO
in point of fact promulgates the version of 47 C.F.R. § 51.319(e)(2)(i) that the majority
quotes. See TRRO at 2677, 2682; Maj. Op. at 9–10. All of this confirms that the TRRO
is a legislative rule. See Lincoln v. Vigil, 508 U.S. 182, 195–196 (1993); St. Francis
Health Care Ctr. v. Shalala, 205 F.3d 937, 949 (6th Cir. 2000) (“[I]f by its action the
agency intends to create new law . . . , the rule is properly considered to be a legislative
rule.”).
Nos. 07-2469/2473 Michigan Bell Telephone Co. v. Lark, et al. Page 31
Perhaps the majority means that ¶¶ 136–40 of the TRRO do not deserve deference
because those paragraphs are part of the “concise general statement” of the TRRO’s
“basis and purpose,” 5 U.S.C. § 553(c), not amendments to the federal code. See Maj.
Op. at 7 n.6 (“[T]he TRRO . . . is . . . not a true ‘regulation.’”). I am unaware of any
court reading such a line into Auer. No one has done so, I believe, because “[c]ourts and
Congress treat the terms ‘regulation’ and ‘rule’ as interchangeable,” Nat’l Treasury
Employees Union v. Weise, 100 F.3d 157, 160 (D.C. Cir. 1996), and “concise general
statements” are part of the rule, see 5 U.S.C. § 553(c); Lincoln, 508 U.S. at 195–96.
Justice Scalia’s concurrence in Couer Alaska is not to the contary. See Couer Alaska,
Inc. v. Se. Alaska Conservation Council, ___ U.S. ___, 129 S. Ct. 2458, 2479 (noting
courts defer under Auer only “to an agency’s interpretation of its own ambiguous
regulation.”). Justice Scalia was distinguishing between regulations and statutes, not
between sections of a legislative rule. See id.
But whether the TRRO is an interpretive or legislative rule is beside the point.
We generally defer to an agency’s interpretation of its own rules because it “make[s]
little sense” to impose our interpretation on the agency when it remains free to rewrite
the rule (largely) however it wants. Auer, 519 U.S. at 463. That rationale applies with
extra force to interpretive rules: An agency could amend its interpretive rule and wipe
a court’s interpretation off the board without even the delay of notice-and-comment
rulemaking.
In the final analysis, the FCC’s interpretation reasonably respects the words of
its regulations and Auer requires us to respect that interpretation. The majority seeing
it differently, I respectfully dissent.