At & T Corp. v. Core Communications, Inc.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
Nos. 14-1499 & 14-1664
____________
AT&T CORP.;
TELEPORT COMMUNICATIONS OF AMERICA, LLC
v.
CORE COMMUNICATIONS, INC.; ROBERT F.
POWELSON, Chairman of the Pennsylvania Public Utility
Commission in his official capacity; JOHN F. COLEMAN,
JR., Vice Chairman of the Pennsylvania Public Utility
Commission in his official capacity; WAYNE E.
GARDNER; JAMES H. CAWLEY; PAMELA A. WITMER,
Commissioners of the Pennsylvania Public Utility
Commission in their official capacity
Robert F. Powelson, John F. Coleman, Jr.,
James H. Cawley, Wayne E. Gardner and
Pamela A. Witmer,
Appellants in No. 14-1499
Core Communications, Inc.,
Appellant in No. 14-1664
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. No. 2-12-cv-07157)
District Judge: Honorable Mary A. McLaughlin
Argued on November 19, 2014
Before: AMBRO, SCIRICA and ROTH, Circuit Judges
(Opinion filed November 25, 2015)
Shaun A. Sparks, Esquire (Argued)
Colin W. Scott, Esquire
Kathryn G. Sophy, Esquire
Pennsylvania Public Utility Commission
P.O. Box 3265
Harrisburg, PA 17105
Counsel for Appellants Robert F.
Powelson, John F. Coleman, Jr.,
James H. Cawley, Wayne E. Gardner
and Pamela A. Witmer,
Christopher F. Van de Verge, Esquire (Argued)
Core Communications, Inc.
209 West Street, Suite 302
Annapolis, MD 21401
2
Mark D. Bradshaw, Esquire
Stevens & Lee
17 North Second Street
16th Floor
Harrisburg, PA 17101
Counsel for Appellant Core
Communications, Inc.
Christopher S. Comstock, Esquire (Argued)
Theodore A. Livingston, Esquire
Mayer Brown
71 South Wacker Drive
Chicago, IL 60606
Counsel for Appellees
Scott H. Angstreich, Esquire
Kellogg Huber Hansen Todd Evans & Figel
1615 M Street, N.W.
Suite 400
Washington, DC 20036
Counsel for Amicus Curiae Verizon
OPINION
ROTH, Circuit Judge:
3
The members of the Pennsylvania Public Utility
Commission (PPUC) and Core Communications, Inc., appeal
the District Court’s ruling granting summary judgment in
favor of AT&T Corp. Core billed AT&T for terminating
phone calls from AT&T’s customers to Core’s Internet
Service Provider (ISP) customers from 2004 to 2009. When
AT&T refused to pay, Core filed a complaint with the PPUC,
which ruled in Core’s favor. AT&T then filed suit in federal
court seeking an injunction on the ground that the PPUC
lacked jurisdiction over ISP-bound traffic because such traffic
is the exclusive province of the Federal Communications
Commission. Because we find that the FCC’s jurisdiction
over local ISP-bound traffic is not exclusive and the PPUC
orders did not conflict with federal law, we will vacate the
judgment of the District Court and remand this case for entry
of judgment in favor of Core and the members of the PPUC.
I.
A.
Congress passed the Telecommunications Act of
1996 (TCA) to “fundamentally restructure[] local telephone
1
markets.”2 Before the TCA, local telephone service
companies operated as government-regulated monopolies.
“States typically granted an exclusive franchise in each local
service area to a local exchange carrier (LEC).”3 One of the
TCA’s principal aims “was to end local telephone monopolies
and develop a national telecommunications policy that
1
47 U.S.C. § 151 et seq.
2
AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 371 (1999).
3
Id.4
strongly favored local telephone market competition.” 4 The
TCA thus created two classes of LECs: the new market
entrants are considered “competitive” LECs (CLECs) and the
former state-regulated monopolies are designated
“incumbent” LECs (ILECs).5
Recognizing the considerable barriers to entry
associated with building out a network, the TCA required
ILECs to allow CLECs to connect to their preexisting
networks.6 “Interconnection allows customers of one LEC to
call the customers of another, with the calling party’s LEC
(the ‘originating’ carrier) transporting the call to the
connection point, where the called party’s LEC (the
‘terminating’ carrier) takes over and transports the call to its
end point.” 7 Without mandatory interconnection, a CLEC’s
customers would not be able to connect with friends or family
who are customers of other phone companies—whether ILEC
or CLEC.
Interconnection, of course, costs money. The TCA
aimed to solve the problem of cost allocation by requiring
reciprocal payment arrangements, best understood as an
4
Global NAPs, Inc. v. Verizon New England, Inc. (Global
NAPs II), 454 F.3d 91, 93 (2d Cir. 2006) (citations omitted).
5
See 47 U.S.C. § 251. The term “competitive local exchange
carrier” does not appear in the statute, but is commonly used
to describe the non-incumbent LECs. See, e.g., MCI
Telecomm. Corp. v. Bell Atl. Pa., 271 F.3d 491, 498 (3d Cir.
2001).
6
See 47 U.S.C. § 251(c)(2).
7
Global NAPs Cal., Inc. v. Pub. Utils. Comm’n of Cal., 624
F.3d 1225, 1228 (9th Cir. 2010).
5
“originator pays” rule. “In basic terms, when a customer of
Carrier A places a local call to a customer of Carrier B,
Carrier A must pay Carrier B for terminating the call, and
vice versa.”8 “The logic behind this system was that, over
time, the number of calls going each way would be essentially
the same, and no LEC would pay more than its fair share of
the costs associated with terminating other LECs’ traffic.”9
Thus, all LECs have “[t]he duty to establish reciprocal
compensation arrangements for the transport and termination
of telecommunications.” 10 But because the incumbents’
established market power gave them a potentially
overwhelming advantage in negotiations, ILECs have a duty
8
Peter W. Huber, et al., Federal Telecommunications Law
§ 5.11.2 (2d ed. 1999). The FCC clarified the compensation
rules shortly after the TCA came into effect. It determined
that reciprocal compensation rules “apply only to traffic that
originates and terminates within a local area”—that is, local
traffic. See In re Implementation of the Local Competition
Provisions in the Telecommunications Act of 1996,
Interconnection Between Local Exchange Carriers and
Commercial Mobile Radio Service Providers, 11 FCC Rcd.
15499, 16013 ¶ 1034 (1996) (Local Competition Order).
Long distance calls, in contrast, are subject to “access
charges,” 47 C.F.R. § 69.2(a), which “long distance
companies are required to pay local-exchange carriers for the
use of local network facilities.” Global NAPs II, 454 F.3d at
95.
9
AT&T Commc’ns of Cal. v. Pac-West Telecomm, Inc., 651
F.3d 980, 984 (9th Cir. 2011).
10
47 U.S.C § 251(b)(5).
6
to negotiate interconnection agreements in good faith (as does
the requesting telecommunications carrier).11
Congress also provided an enforcement mechanism to
ensure the formation of interconnection agreements. Under
47 U.S.C. § 252, either party to an interconnection agreement
may request that the relevant state commission participate in
contract negotiations and mediate any differences. 12 If that
fails, either LEC may petition the same state commission to
arbitrate unresolved issues. 13 But because § 252 proceedings
govern only ILEC-CLEC disputes, it “leaves something of an
enforcement gap: CLECs have statutory duties to
interconnect with other LECs . . ., but there is no procedure
specified for one CLEC to require another CLEC to enter into
an interconnection agreement that would govern the terms of
those duties.” 14 Accordingly, CLECs sometimes transmit
traffic to each other without interconnection agreements.
B.
The advent of dial-up Internet invalidated the
assumptions behind reciprocal arrangements. Suddenly,
many customers called ISPs with longer-duration calls that,
unlike calls to friends and family, were never returned. The
FCC soon realized that this situation “creat[ed] an
opportunity for regulatory arbitrage.” 15 “Because traffic to
11
Id. § 251(c)(1).
12
Id. § 252(a)(2).
13
Id. § 252(b)(1).
14
Pac-West, 651 F.3d at 983 n.3.
15
In re Implementation of the Local Competition Provisions
in the Telecommunications Act of 1996, 16 FCC Rcd. 9151,
9187 ¶ 21 (2001) (ISP Remand Order).
7
ISPs flows one way, so does money in a reciprocal
compensation regime,” 16 and if a carrier could create a
customer base entirely out of ISPs, it could be paid to
terminate calls, without ever reciprocating. Indeed, “[b]efore
long, reciprocal compensation on ISP-bound traffic was
costing ILECs billions.” 17
The FCC sought to address the problem in its 1999
Declaratory Ruling.18 Because the FCC generally has
jurisdiction over interstate communications and not purely
intrastate communications, 19 the FCC first considered its own
jurisdiction using its traditional end-to-end jurisdictional
analysis.20 The FCC found that although calls to the ISP
16
Id.17
Huber, et al., Federal Telecommunications Law § 5.11.2
(emphasis omitted).
18
In re Implementation of the Local Competition Provisions
in the Telecommunications Act of 1996, Inter-Carrier
Compensation for ISP-Bound Traffic, 14 FCC Rcd. 3689
(1999) (Declaratory Ruling).
19
See 47 U.S.C. § 152.
20
Declaratory Ruling, 14 FCC Rcd. at 3690 ¶ 1. In a later
order, the FCC provided a useful breakdown of its end-to-end
jurisdictional approach:
Using an end-to-end approach, when the end
points of a carrier’s service are within the
boundaries of a single state the service is
deemed a purely intrastate service, subject to
state jurisdiction for determining appropriate
regulations to govern such service. When a
service’s end points are in different states or
8
itself were local, “the ultimate destination” is an “Internet
website that is often located in another state,” so it asserted
jurisdiction over ISP-bound traffic.21 More specifically, the
FCC found that local ISP-bound traffic was “jurisdictionally
mixed” because it “appears to be largely interstate.”22
Following the same reasoning, the FCC found that the
reciprocal compensation scheme of § 251, which applies to
local traffic, 23 does not apply to ISP-bound traffic. 24 The
FCC noted that, until it adopted a rule creating a new
compensation structure, parties could voluntarily, but were
not required to, include ISP-bound traffic in their otherwise
mandatory interconnection agreements under §§ 251 and
252.25 Despite the non-local nature of the traffic, the FCC
between a state and a point outside the United
States, the service is deemed a purely interstate
service subject to the Commission’s exclusive
jurisdiction. Services that are capable of
communications both between intrastate end
points and between interstate end points are
deemed to be “mixed-use” or “jurisdictionally
mixed” services.
In re Vonage Holdings Corp., 19 FCC Rcd. 22404, 22413 ¶
17 (2004) (footnotes omitted).
21
Declaratory Ruling, 14 FCC Rcd. at 3697 ¶ 12.
22
Id.
23
See Local Competition Order, 11 FCC Rcd. at 16013 ¶
1034.
24
See generally Declaratory Ruling, 14 FCC Rcd. at 3703-06
¶¶ 21-27.
25
Id. at 3703 ¶ 22.
9
still saw a role for state commissions to decide, as part of the
§ 252 arbitrations, whether reciprocal compensation should
be required in a specific case.26
After the FCC issued the Declaratory Ruling, ILECs
petitioned for review in the Court of Appeals for the District
of Columbia Circuit. 27 The court vacated the ruling
reasoning that, because the FCC considered the traffic local
for some purposes, the FCC had failed to justify why § 251
did not apply to the admittedly local traffic despite its
“largely interstate” character.28 Although the standard end-to-
end jurisdictional analysis was valid on its own terms, the
FCC had extended the reasoning to determine that the traffic
was non-local for substantive rules. The court held that the
FCC provided no rationale for that inferential leap.29
Notably, the court did not question or alter the jurisdictional
analysis; it merely noted that the FCC had not demonstrated
that the analysis was appropriate for any other use.
In 2001, the FCC responded with the ISP Remand
Order, reaching the same substantive conclusion—that local
ISP-bound traffic is not subject to reciprocal compensation—
but on different legal grounds. The FCC found that it had
previously erred by trying to rigidly classify ISP-bound traffic
as either local or long-distance for the purposes of
26
Id. at 3704-05 ¶ 25.
27
Bell Atl. Tel. Companies v. FCC, 206 F.3d 1 (D.C. Cir.
2000).
28
Id. at 8 (noting a prior FCC litigation position “that a call to
an information service provider is really like a call to a local
business that then uses the telephone to order wares to meet
the need”).
29
Id. at 5.
10
§ 251(b)(5), and the Commission should instead have
recognized that such traffic is a hybrid. 30 Accordingly, the
FCC ceased construing § 251(b)(5) using that dichotomy,
instead reading § 251(g) to “limit[] the reach of the reciprocal
compensation regime mandated in section 251(b).”31 Thus,
all local traffic would be governed by the reciprocal
compensation scheme unless it fell into one of the three
categories outlined in § 251(g): “exchange access,
information access, and exchange services.”32 The FCC
found that ISP-bound traffic is indeed “information access,”
and is therefore exempt from § 251(b)(5).
Having established a new rationale for exempting ISP-
bound traffic from reciprocal compensation, the FCC invoked
its general powers under § 201(b) “to address the market
distortions under the current intercarrier compensation
30
ISP Remand Order, 16 FCC Rcd. at 9164 ¶ 26-27 (“Upon
further review, we find that the Commission erred in focusing
on the nature of the service (i.e., local or long distance) and in
stating that there were only two forms of telecommunications
services – telephone exchange service and exchange access –
for purposes of interpreting the relevant scope of section
251(b)(5) . . .. This balancing act reflected the historical view
that there were only two kinds of intercarrier compensation:
one for local telephone exchange service, and a second
(access charges) for long distance services. Attempting to
describe a hybrid service (the nature being an access service,
but subject to a compensation mechanism historically limited
to local service) was always a bit of mental gymnastics.”); id.
at 9172 ¶ 45.
31
Id. at 9166-67 ¶ 34 (citing 47 U.S.C. § 251(g)).
32
Id. at 9170 ¶ 42.
11
regimes for ISP-bound traffic.” 33 The Commission set forth a
new “interim” compensation including four specific rules, the
most important of which is the rate cap: an upper bound to
the prices LECs could charge for ISP-bound traffic. This cap
would, over time, move from $0.0015 per minute of use
(MOU) to $0.0007/MOU, where it now continues to reside. 34
The FCC made clear that these caps are caps, not rates, and as
such they “have no effect to the extent that states have
ordered LECs to exchange ISP-bound traffic either at rates
below the caps or on a bill and keep basis (or otherwise have
not required payment of compensation for this traffic).” 35
In addition, the interim compensation scheme created a
growth cap, limiting the overall number of minutes a LEC
could be compensated for ISP traffic;36 the “new markets
rule,” under which LECs that were not already party to
interconnection agreements would exchange ISP-bound
33
Id..at 9186 ¶ 77; see also 47 U.S.C. § 201(b) (“All charges,
practices, classifications, and regulations for and in
connection with such communication service, shall be just
and reasonable, and any such charge, practice, classification,
or regulation that is unjust or unreasonable is declared to be
unlawful . . .. The Commission may prescribe such rules and
regulations as may be necessary in the public interest to carry
out the provisions of this chapter.”).
34
Id. at 9190-91 ¶ 85.
35
Id. at 9188 ¶ 80. In a “bill-and-keep” compensation
regime, each carrier bills its own customers for “the cost of
both originating traffic that it delivers to the other network
and terminating traffic that it receives from the other
network.” Id. at 9154 ¶ 2 n.6.
36
Id. at 9187 ¶ 78, 9191 ¶ 86.
12
traffic on a bill-and-keep basis;37 and the “mirroring rule,”
under which ILECs that seek to benefit from the rate caps
must also terminate their own traffic at the same rate. 38 In
2004, the FCC granted a petition from Core requesting
forbearance from enforcement of the new markets and growth
cap rules, finding that they were no longer in the public
interest.39
The ISP Remand Order was also challenged in the
Court of Appeals for the D.C. Circuit. 40 The court again
rejected the FCC’s basis for exempting ISP-bound traffic
from §251(b), but determined that there were probably “other
legal bases for adopting the rules chosen by” the FCC. 41 The
court remanded to the FCC for better reasoning, but left the
rules in place. 42
In 2008, after WorldCom successfully petitioned the
Court of Appeals for the D.C. Circuit for a writ of mandamus,
the FCC released the ISP Mandamus Order, in which the
FCC concluded that ISP-bound traffic is subject to
37
Id. at 9188-89 ¶ 81.
38
Id. at 9193-94 ¶ 89.
39
Petition of Core Comm., Inc. for Forbearance under 47
U.S.C. § 160(C) from Application of the ISP Remand Order,
19 FCC Rcd 20179, 20186 (2004) (Core Forbearance
Order), aff’d, In re Core Commc’ns, Inc., 255 F.3d 267 (D.C.
Cir. 2006).
40
Worldcom v. FCC, 288 F.3d 429, 430 (D.C. Cir. 2002).
41
Id.42
Id.13
§ 251(b)(5),43 but reasoned that the traffic could be treated
differently due to the FCC’s broad § 201 authority to regulate
and the savings clause in § 251(i).44 The effect of the order
was to “maintain the $.0007 cap and the mirroring rule
pursuant to [the FCC’s] section 201 authority,” as a
placeholder until the Commission develops a more
comprehensive compensation regime. 45 Of the “interim”
rules set out by the ISP Remand Order, the rate caps and
mirroring rule are still in force today.
C.
Core and AT&T are both CLECs operating in
Pennsylvania. Between 2004 and 2009, AT&T provided
local and long distance telephone service to its customers.
Over the same time period, Core’s only customers were ISPs
that provided dial-up internet connections to at-home internet
users. AT&T’s customers placed calls to Core’s customers in
order to gain dial-up access to the internet. All of the calls at
issue were local, originating and terminating in the same local
43
In re High-Cost Universal Serv. Support Fed.-State Joint
Bd. on Universal Serv. Lifeline & Link Up Universal Serv.
Contribution Methodology Numbering Res. Optimization
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996 Developing A Unified
Intercarrier Comp. Regime Intercarrier Comp. for ISP-Bound
Traffic IP-Enabled Servs., 24 FCC Rcd. 6475, 6478 ¶ 6, 6480
¶ 8 (2008) (ISP Mandamus Order).
44
Id. at 6483 ¶ 18; see also 47 U.S.C. § 251(i) (“Nothing in
this section shall be construed to limit or otherwise affect the
Commission’s authority under section 201 of this title.”).
45
ISP Mandamus Order, 24 FCC Rcd. at 6489 ¶ 29.
14
exchange area. Each AT&T customer’s call was delivered by
AT&T to Verizon (the local ILEC), which then sent the call
to Core, and Core terminated the call to the ISP.
Core did not bill AT&T for these calls immediately.
During the time period at issue, Core had an “intrastate
switched access tariff” on file with the PPUC that specified
Core’s rate for terminating long-distance calls but did not
relate to local calls. In January 2008, Core billed AT&T for
calls dating back to June 2004 at the long-distance rate
specified in its state tariff, $0.014/MOU. AT&T refused to
pay, claiming that it believed the traffic had been exchanged
on a bill-and-keep basis. 46
On May 19, 2009, Core filed a complaint with the
PPUC against AT&T, seeking payment at its long-distance
rate for terminating the calls. AT&T moved to dismiss the
complaint on the ground that the PPUC lacked jurisdiction to
hear the dispute because the calls were subject to the
exclusive jurisdiction of the FCC. On December 5, 2012, the
PPUC issued a final order holding that it had jurisdiction to
hear the dispute, and that federal law, including the ISP
Remand Order, applied. The PPUC found that its ability to
set rates for ISP-bound traffic was preempted by the ISP
Remand Order, and because the rate charged by Core was
greater than the federal cap, the federal cap of $0.0007/MOU
should be applied as the new rate. Accordingly, the PPUC
ordered that AT&T pay Core for terminating calls at the
lower rate. Additionally, pursuant to a four-year state statute
46
AT&T similarly exchanges local traffic on a bill-and-keep
basis with other CLECs in the area. For a definition of “bill-
and-keep,” see supra n. 35.
15
of limitations,47 the PPUC limited Core’s recovery to calls
terminated on or after May 19, 2005. The PPUC ultimately
ordered AT&T to pay a total of $254,029.89 to Core by
September 18, 2013.
AT&T then filed suit in the U.S. District Court for the
Eastern District of Pennsylvania, seeking to enjoin
enforcement of the PPUC’s order. Soon after, AT&T moved
for a preliminary injunction. Because the suit involved only
legal issues, the District Court converted AT&T’s motion to a
motion for summary judgment. In the District Court, as here,
AT&T argued that the PPUC violated federal law because it
1) lacked jurisdiction; 2) awarded charges at a rate not
contained in any federal tariff or contract, violating 47 U.S.C.
§§ 201 and 203; 3) allowed Core to recover reciprocal
compensation without a reciprocal compensation
arrangement, violating 47 U.S.C. § 251(b)(5);
4) impermissibly engaged in retroactive ratemaking; and
5) applied the incorrect statute of limitations. The District
Court agreed that the PPUC lacked jurisdiction, and
accordingly, did not address the remaining four issues. Core
and the members of the PPUC appealed.
After lodging the appeal, the PPUC filed a separate
Petition for Declaratory Order with the FCC asking whether
“state commissions have the authority to apply federal
telecommunications law to adjudicate intercarrier
compensation disputes” between two CLECs that indirectly
exchanged ISP-bound calls without an interconnection
agreement. The formal public comment cycle on the PPUC’s
petition closed July 30, 2014. Before oral argument on
47
See 66 Pa. Cons. Stat. § 1312.
16
November 19, 2014, we asked the FCC to comment on this
case. On November 4, 2014, the FCC sent a letter to the
Court declining to do so, reasoning that it could not comment
because there was an open FCC administrative proceeding
presenting the same question between the same parties.
Accordingly, after oral argument, we held the case c.a.v. until
June 30, 2015, to give the FCC time to make a determination.
As the FCC has yet to rule on the PPUC’s petition, we now
proceed without its input.
II.48
The Communications Act of 1934 created the FCC and
gave it the power to regulate interstate communications. 49
The Act originally designated all communications as either
interstate or intrastate, giving the FCC jurisdiction over solely
interstate communications and leaving the states with
jurisdiction over intrastate communications.50 In 1996,
however, the TCA significantly altered the clean lines of
jurisdiction established in the 1934 Act. 51 “[T]he [TCA]
48
The district court had jurisdiction pursuant to 28 U.S.C.
§ 1331 to review a decision by a state public utility
commission to ensure compliance with federal law. See MCI,
271 F.3d at 498. We have appellate jurisdiction pursuant to
28 U.S.C. § 1291. Because the only issues presented are
issues of law and there are no facts in dispute, our review is
de novo.
49
See 47 U.S.C. § 151(a).
50
See id. § 152.
51
Huber, et al., Federal Telecommunications Law § 3.3.4; see
also Phillip J. Weiser, Federal Common Law, Cooperative
Federalism, and Enforcement of the Telecom Act, 76 N.Y.U.
17
provides that various responsibilities are to be divided
between the state and federal governments, making it an
exercise in what has been termed cooperative federalism.”52
“That is, ‘Congress enlisted the aid of state public utility
commissions to ensure that local competition was
implemented fairly and with due regard to the local
conditions and the particular historical circumstances of local
regulation under the prior regime.’”53
L. Rev. 1692, 1743 (2001) (noting that although several of the
1996 Act’s “provisions clearly anticipated that state agencies
would play an important role and exercise considerable
discretion in its implementation,” the Act nevertheless “failed
to articulate a clear vision of federal-state relations”).
52
Core Commc’ns, Inc. v. Verizon Pa., Inc., 493 F.3d 333,
335 (3d Cir. 2007) (quoting P.R. Tel. Co. v. Telecomms.
Regulatory Bd. of P.R., 189 F.3d 1, 8 (1st Cir. 1999)); see
also Mich. Bell Tel. Co. v. MCIMetro Access Transmission
Servs., Inc., 323 F.3d 348, 351 (6th Cir. 2003) (“The Act has
been called one of the most ambitious regulatory programs
operating under ‘cooperative federalism,’ and creates a
regulatory framework that gives authority to state and federal
entities in fostering competition in local telephone markets.”);
Sw. Bell Tel. Co. v. Pub. Util. Comm’n of Texas, 208 F.3d
475, 480 (5th Cir. 2000) (“The Supreme Court has recognized
that the Act cannot divide the world of domestic telephone
service ‘neatly into two hemispheres,’ one consisting of
interstate service, over which the FCC has plenary authority,
and the other consisting of intrastate service, over which the
states retain exclusive jurisdiction.” (quoting La. Pub. Serv.
Comm’n v. FCC, 476 U.S. 355, 360 (1986))).
53
Id. (quoting Global NAPs, Inc. v. Mass. Dep’t of
Telecomm. and Energy, 427 F.3d 34, 46 (1st Cir. 2005)).
18
The parties ask us to determine whether ISP-bound
traffic is interstate or “jurisdictionally mixed,” with the
supposed attendant implications that, in the former case, the
FCC has exclusive jurisdiction, and, in the latter, state and
federal jurisdiction exist concurrently. The picture, however,
is more complicated.
A.
Whether a particular type of communications is
interstate or intrastate is a technical question. To determine
the answer to that question, we look to the
Telecommunications Act of 1996 and the FCC’s regulations
interpreting that statute. We “defer to an agency’s
interpretation of its regulations, even in a legal brief, unless
the interpretation is plainly erroneous or inconsistent with the
regulations or there is any other reason to suspect that the
interpretation does not reflect the agency’s fair and
considered judgment on the matter in question.”54 This
deference applies whether or not the question at issue is
jurisdictional. 55.
54
Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254, 2261
(2011) (internal formatting removed); accord Christopher v.
SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012).
55
See City of Arlington, Tex. v. FCC, 133 S. Ct. 1863, 1871
(2013) (“[W]e have consistently held that Chevron applies to
cases in which an agency adopts a construction of a
jurisdictional provision of a statute it administers.” (quotation
marks omitted)).
19
As described above, the FCC employs end-to-end
jurisdictional analysis to determine whether communications
are intrastate or interstate. 56 While the parties in this case ask
us to determine whether the traffic is interstate or
jurisdictionally mixed, the FCC has not always been so
precise, often using the terms interchangeably. Thus, while
we read the FCC’s rulings to mean that the traffic is
interstate, the inquiry will not end there.
The FCC’s first pass at the question came in the
Declaratory Ruling, where the Commission found that local
ISP-bound traffic was “jurisdictionally mixed” because it
“appears to be largely interstate.”57 Three more times
throughout the order, the FCC used the phrase “largely
interstate” to describe the traffic. 58 After the D.C. Circuit
vacated the Declaratory Ruling, the FCC revisited its original
finding in the ISP Remand Order. There the FCC used the
terms “jurisdictionally mixed” and “interstate”
interchangeably to describe both the original ruling and the
traffic itself. 59 In other places, the ISP Remand Order
56
Bell Atl., 206 F.3d at 3.
57
14 FCC Rcd. at 3690 ¶ 1.
58
See id. at 3703-06 ¶¶ 23, 25, 27.
59
Compare ISP Remand Order, 16 FCC Rcd at 9152 ¶ 1
(“We previously found in the Declaratory Ruling that such
traffic is interstate traffic subject to the jurisdiction of the
Commission under section 201 of the Act and is not,
therefore, subject to the reciprocal compensation provisions
of section 251(b)(5).” (footnotes omitted)), and id at 9162 ¶
21 (“In the Declaratory Ruling, the Commission concluded
that Internet-bound traffic was jurisdictionally interstate and,
thus, not subject to section 251(b)(5).”), with id. at 9160 ¶ 14
20
referred to ISP-bound traffic as being “predominantly
interstate” 60 or having an “interstate component.”61 In one of
the same paragraphs in which the order refers to the traffic as
“predominantly interstate,” the FCC also noted that it has
“long held” ISP-bound traffic “to be interstate.” 62 Thus, the
ISP Remand Order treats the traffic as interstate, but treats
“jurisdictionally mixed” as a synonym.
The FCC has addressed this question elsewhere as
well. In 2011, the Ninth Circuit decided AT&T
Communications of California v. Pac-West
63
Telecommunications. That case was factually similar to the
one at hand, stemming from an AT&T subsidiary’s refusal to
pay for traffic exchanged with a CLEC with which it did not
have an interconnection agreement. Indeed, the California
Public Utilities Commission (CPUC) ruled against AT&T,
just as the PPUC did here, and AT&T subsequently sued the
CPUC and Pac-West in federal court, challenging, among
other things, CPUC’s jurisdiction to hear the dispute. When
the Ninth Circuit asked the FCC for its view, the Commission
filed an amicus brief, stating that it “has consistently held that
ISP-bound communications are jurisdictionally interstate”
(“The Commission found, therefore, that ISP-bound traffic . .
. is jurisdictionally mixed and largely interstate, and, for that
reason, the Commission found that the reciprocal
compensation obligations of section 251(b)(5) do not apply to
this traffic.”).
60
Id. at 9152 ¶ 1, 9164 ¶ 28, 9165 ¶ 29, 9176 ¶ 54.
61
Id. at 9175 ¶ 52.
62
Id. at 9164 ¶ 28.
63
651 F.3d 980 (9th Cir. 2011).
21
based on its end-to-end jurisdictional analysis.64 But the
same brief also asked the court to refrain from deciding
whether the CPUC had jurisdiction. 65 The CPUC had applied
a state tariff that exceeded the federal rate cap, and the FCC
argued—and the court agreed—that the court did not need to
decide the jurisdictional question because the ISP Remand
Order applied even between two CLECs and the CPUC’s
application of the higher rate was preempted by the federal
rate caps.66 Thus, while we are left to address the question of
a state commission’s jurisdiction for the first time, the FCC’s
amicus brief states its position on its own jurisdiction clearly,
and it accords with the statements in the ISP Remand Order.
Deferring to the FCC’s determination, we find that
local ISP-bound traffic is interstate for jurisdictional
purposes.67 Nevertheless, as a factual matter, the mixed
nature of the traffic is not irrelevant.
B.
We draw two further lessons from the FCC’s treatment
of the jurisdictional question. First, the jurisdictional
determination reflects only a finding about the Commission’s
power to regulate under Section 201, not a view that its
64
Amicus Br. of FCC, Pac-West, 651 F.3d 980 (No. 08-
17030), at 7-8, 29 (Pac-West Amicus Br.).
65
Id. at 29.
66
Pac-West, 651 F.3d at 994.
67
Accord Pac-West, 651 F.3d at 990 (“[T]here is no question
that, for jurisdictional purposes, ISP-bound traffic is interstate
in nature. ISP-bound traffic is therefore subject to the FCC’s
congressionally-delegated jurisdiction.” (citation omitted)).
22
jurisdiction is exclusive. “A matter may be subject to FCC
jurisdiction, without the FCC having exercised that
jurisdiction and preempted state regulation.”68 This makes
sense here because the thrust of the ISP Remand Order’s
analysis focused on how the FCC’s broad § 201 authority
allows it to create the interim rules under the savings clause in
§ 251(i). The analysis established the FCC’s power, but did
not restrict or even address competing power from the states.
Several points further support this conclusion. By
using the terms “interstate” and “jurisdictionally mixed”
interchangeably in the ISP Remand Order, the FCC
demonstrated that it could not have been ruling about
exclusive jurisdiction. Based on the traditional understanding
of the terms, purely interstate traffic is exclusively committed
to the FCC, 69 and jurisdictionally mixed traffic is subject to
68
Global NAPs, Inc. v. Verizon New England, Inc., 444 F.3d
59, 71 (1st Cir. 2006) (Global NAPs I); see alsoPac-West,
651 F.3d at 991 (“[I]t is also well settled that, with the ISP
Remand Order and related pronouncements, the FCC has not
exercised its jurisdiction over all manifestations of ISP-bound
traffic.”).
69
See, e.g., In re Vonage, 19 FCC Rcd. at 22413 ¶ 17 (“When
a service’s end points are in different states or between a state
and a point outside the United States, the service is deemed a
purely interstate service subject to the Commission’s
exclusive jurisdiction.”); In re Am. Tel. & Tel. Co. and the
Assoc. Bell Sys. Cos., 56 FCC. 2d 14, 20 ¶ 21 (1975) (“[T]he
States do not have jurisdiction over interstate
communications.”), aff’d, California v. FCC, 567 F.2d 84(D.C. Cir. 1977) (per curiam).
23
“dual federal/state jurisdiction.”70 If the FCC believed the
TCA committed ISP-bound traffic to its exclusive
jurisdiction, it would have distinguished between the two.
Elsewhere in the text, “the Order also explicitly reserves state
commission authority in certain relevant matters.” 71 Finally,
in the Pac-West amicus brief, the FCC both called ISP-bound
traffic interstate and declined to take a position on whether
the jurisdiction is exclusive. 72 This would make no sense if
interstate traffic necessarily implies exclusive jurisdiction.
Second, according to the FCC, “‘mixed-use’ or
‘jurisdictionally-mixed’ services are generally subject to dual
federal/state jurisdiction, except where it is impossible or
impractical to separate the service’s intrastate from interstate
components and the state regulation of the intrastate
component interferes with valid federal rules or policies.”73
That is to say, where—as here—the interstate and intrastate
components are inseparable, 74 state jurisdiction over mixed
use services such as ISP-bound local traffic is tied to conflict
preemption. This view recognizes the “realities of technology
and economics that belie such a clean parceling of
responsibility” between the state and federal governments. 75
70
In re Vonage, 19 FCC Rcd. at 22413 ¶ 17.
71
Global NAPs II, 454 F.3d at 100 (citing ISP Remand Order
at 9187 ¶ 79 (A carrier may rebut presumptions regarding the
amount of traffic that is ISP-bound by providing evidence “to
the appropriate state commission.”)).
72
Pac-West Amicus Br. at 8, 29.
73
Id.74
See Sw. Bell Tel. Co. v. FCC, 153 F.3d 523, 543 (8th Cir.
1998).
75
La. Pub. Serv. Comm’n, 476 U.S. at 360.
24
A state is therefore both preempted and lacking jurisdiction to
regulate ISP-bound local traffic if and only if the state
regulation conflicts with federal law. Thus, “the question
before us is whether the FCC intended in the ISP Remand
Order to exercise its jurisdiction over the precise issue here,
to the exclusion of state regulation.”76
Discussing its implementation of the new rate caps in
the ISP Remand Order, the FCC was clear that state rates
were preempted and state commissions no longer had
authority to set rates higher than the cap. 77 Because the FCC
“exercise[d] [its] authority under section 201 to determine the
appropriate intercarrier compensation for ISP-bound traffic . .
. state commissions [] no longer have authority to address this
issue.”78 Read in isolation, AT&T’s interpretation—that the
FCC meant to effect field preemption—is plausible. But just
two paragraphs prior, the FCC was equally explicit that the
rate caps are indeed caps and do not apply to rates lower than
those federally mandated.79 If there remain state rates to
which the rate caps do not apply, the FCC cannot have
intended field preemption. 80 This reading is further
confirmed by the ISP Mandamus Order, in which the FCC
“conclude[d] that it is appropriate to retain [the rate cap and
76
Global NAPs I, 444 F.3d at 71.
77
ISP Remand Order, 16 FCC Rcd. at 9189 ¶ 82.
78
Id.79
See id. at 9188 ¶ 80.
80
See Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591, 1595
(2015) (field preemption “foreclose[s] any state regulation in
the area” while conflict preemption “exists where compliance
with both state and federal law is impossible” (internal
quotations omitted)).
25
mirroring rule], but only on a transitional basis until a state
commission . . . has established reciprocal compensation rates
that are at or below $.0007 per minute-of-use.” 81 The FCC
clearly contemplated states’ continued involvement in
ratesetting, and therefore we must conclude that the FCC
meant only to preempt rates that conflict with its own
regulation; that is, rates that exceed the cap. 82
81
ISP Mandamus Order, 24 FCC Rcd. at 6584 ¶ 198.
82
The Pac-West Amicus Brief argued that the FCC “meant to
pre-empt state reciprocal compensation regulation of ISP-
bound traffic,” and in the alternative that states cannot set a
“rate for ISP-bound traffic under state law that exceeded the
prescribed federal rate.” Pac-West Amicus Br. at 26-27.
Unlike a determination of its jurisdiction, however, we do not
defer to an agency’s legal determination regarding
preemption, instead accepting it as influential, “depending on
its thoroughness, consistency, and persuasiveness.” Wyeth v.
Levine, 555 U.S. 555, 577 (2009); see also Pac-West, 651
F.3d at 998 (“Although we do not defer to ‘an agency’s
conclusion that state law is preempted,’ we do defer to the
FCC’s interpretation of the compensation regime it created,
barring some ‘reason to suspect that the interpretation does
not reflect the agency’s fair and considered judgment on the
matter in question.’” (quoting Wyeth, 555 U.S. at 576 and
Chase Bank USA, N.A. v. McCoy, 131 S. Ct. 871, 881
(2011))). As explained above, when read in full, the ISP
Remand Order implies not field preemption but conflict
preemption, and a mere litigation position that argues for the
former first and the latter in the alternative (submitted in a
separate case, no less) is neither thorough, consistent, nor
persuasive enough to merit deference here.
26
When faced with the possibility of applying rates that
exceed the federal cap, the PPUC recognized the primacy of
federal law and reduced the applicable rates to match the
federal limit. This is where this case diverges from the facts
of Pac-West. By lowering the state rates it applied, the PPUC
avoided a conflict with federal law. Because there was no
conflict, the PPUC’s actions were not preempted.
AT&T argues, however, and the District Court
concluded, that state commissions may only act pursuant to
their role in mediating and arbitrating interconnection
agreements under § 252 of the TCA. 83 But the TCA itself
invites state involvement in more than § 252.84 AT&T’s
argument ignores both the FCC’s statements regarding state
commissions’ involvement in ratesetting and the cooperative
federalism principles inherent in the TCA by presuming that
the statute stripped states of all authority to act unless
83
Section 252 clearly does not apply here because there is no
interconnection agreement and both parties are CLECs,
meaning neither party has a duty to negotiate an agreement.
See 47 U.S.C. § 251(c).
84
See 47 U.S.C. § 251(d)(3) (“In prescribing and enforcing
regulations to implement the requirements of this section, the
Commission shall not preclude the enforcement of any
regulation, order, or policy of a State commission that-- (A)
establishes access and interconnection obligations of local
exchange carriers; (B) is consistent with the requirements of
this section; and (C) does not substantially prevent
implementation of the requirements of this section and the
purposes of this part.”).
27
delegated back to them.85 The picture is simply not that
clear-cut.86
AT&T’s reliance on MCI Telecommunications Corp.
v. Bell Atlantic Pennsylvania 87 is similarly misplaced. MCI
concerned sovereign immunity for states arbitrating
interconnection agreements under § 252. Under the Eleventh
Amendment, we held that the states were granted a “gratuity”
and were “voluntarily regulating on behalf of Congress”
because Congress could have withdrawn all power from
states, but instead allowed the states to keep some. 88
Accordingly, such states waived sovereign immunity and
could be sued.89 But we also reasoned that although
“Congress could have made that preemption complete,” it did
not.90 Rather, we stated that Congress “federalized the
regulation of competition for local telecommunications
service.”91 Based on the integrated system of cooperative
85
See AT&T Br. at 27 (“Neither the Communications Act,
the 1996 Act, nor the FCC have delegated jurisdiction to the
PUC to set rates or otherwise regulate interstate traffic outside
of a Section 252 proceeding.”).
86
Accord Iowa Utils. Bd., 525 U.S. at 397 (“It would be gross
understatement to say that the 1996 Act is not a model of
clarity.”).
87
271 F.3d 49188
Id. at 510 (quotation omitted).
89
Id. at 498 (citing Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999)).
90
Id. at 510.
91
Id. at 509 (emphasis added); see also id. at 510 (noting that
“[t]he Act . . . validly preempted state regulation over
competition to provide local telecommunications service” and
that “[r]egulating local telecommunications competition
28
federalism that we have previously endorsed,92 and which we
reiterate today, we hold that although ISP-bound traffic is
interstate, states retain jurisdiction to regulate ISP-bound
traffic where the state regulations do not conflict with federal
law.
III.
Having established that the PPUC had jurisdiction to
hear the dispute, we turn to AT&T’s additional arguments
that the PPUC’s Orders violate federal law in four other ways.
A.
AT&T contends that the PPUC Orders violate 47
U.S.C. §§ 201 and 203 because Core neither filed a federal
tariff that would apply to billing for interstate services nor
negotiated a contract with AT&T; thus, in light of that fact
billing at any rate is “unreasonable.”93 For support, AT&T
looks to a number of FCC adjudications where the “FCC
rejected the idea that a CLEC could bill for interstate services
under the 1996 Act no longer is . . . an ‘otherwise lawful’ or
‘otherwise permissible’ activity for a state . . . [but] is an
activity in which states and state commissions are not entitled
to engage except by the express leave of Congress”
(emphases added)).
92
Verizon Pa., 493 F.3d at 335.
93
Considering that AT&T observes multiple times in its brief
that it, as a CLEC, has no duty to negotiate in good faith,
AT&T Br. at 11, 13, 35, and the PPUC observed in its initial
decision that AT&T refused to negotiate in fact, PPUC Initial
Decision, ¶¶ 42-44, J.A. 196-97, the latter accusation here
that Core “failed to negotiate” a contract rings hollow.
29
without a federal tariff or contract covering the services.” 94
But the cases AT&T cites all involve interstate switched-
access services—that is, intercarrier compensation for long-
distance calls between states.95 As we point out above,
although ISP-bound local traffic is jurisdictionally interstate,
it is still subject to state control unless otherwise preempted
by the FCC. Nothing in the ISP Remand Order requires
federal tariffing; had the FCC intended that ISP-bound traffic
rates be governed by federal tariffs, it would have set rates to
be tariffed, not rate caps that set upper limits to state tariffs.
ISP-bound traffic is therefore fundamentally different from
interstate switched-access services, and there is no federal
tariffing requirement.
B.
AT&T next contends that the PPUC Orders violate 47
U.S.C. § 251(b)(5), which requires all LECs to “establish
reciprocal compensation arrangements for the transport and
termination of telecommunications.” According to AT&T,
the statutory language explicitly requires an “arrangement,”
i.e., a contract, before a LEC can recover § 251(b)(5) charges.
This argument is unpersuasive for several reasons. First,
while § 251(b)(5) applies to ISP-bound traffic, the reciprocal
arrangements for that traffic are governed by the ISP Remand
Order. This is the holding of the ISP Mandamus Order,96 and
94
AT&T Br. 49.
95
See, e.g., AT&T Corp. v. All Am. Tel. Co., 28 FCC Rcd.
3477, 3494 ¶ 37 (2013) (confirming that LECs must file “file
and maintain tariffs with the Commission for interstate
switched access services”).
96
ISP Mandamus Order, 24 FCC Rcd. 6478 ¶ 6 (“[A]lthough
ISP-bound traffic falls within the scope of section 251(b)(5),
30
as the Ninth Circuit held in Pac-West, the ISP Remand Order
applies as much between two CLECs as between and an
ILEC and a CLEC. 97 Thus, because the PPUC complied with
the ISP Remand Order, it also complied with § 251(b)(5).
AT&T’s argument also invites an odd result. Core is
required by statute to terminate AT&T’s traffic irrespective of
a billing arrangement being put in place. Thus, if AT&T
refuses to pay, Core is left no recourse because it followed the
law and terminated all the calls it received even though it did
not first arrange for payment. This view amounts to a default
bill-and-keep arrangement, whereby neither side must pay
unless each side comes to a voluntary agreement. But that
was precisely the “new markets rule” that the FCC deemed no
longer in the public interest in the Core Forbearance Order.98
If that were the meaning of the ISP Remand Order and
§ 251(b)(5), the new markets rule never would have been
necessary. And if we were to interpret § 251(b)(5) this way,
we would render null the FCC’s finding that such a rule is no
longer in the public interest.
C.
AT&T next argues that because no tariff was
established, any rate above $0/MOU is impermissible
retroactive ratemaking. Because these calls were local calls,
the intrastate long distance tariff Core had filed with the
this interstate, interexchange traffic is to be afforded different
treatment from other section 251(b)(5) traffic pursuant to our
authority under section 201 and 251(i) of the Act.”).
97
Pac-West, 651 F.3d at 994.
98
19 FCC Rcd. at 20186 ¶ 21.
31
PPUC filed did not directly apply; it applied only between
two different local exchange areas within the state. To accept
AT&T’s position, we would again be required to find that the
default rate is $0/MOU, which is once again the new markets
rule. But that is not the primary reason this argument fails.
“The purpose of the rule against retroactivity, and the
closely related filed rate doctrine, is to ensure
predictability.” 99 The question is therefore whether, absent an
agreement, it was predictable that the state commission would
apply a rate equal to the federal rate cap. AT&T was on
notice since 2001 that it could be subject to payment for the
exchange of ISP-bound traffic and on notice since 2004 that a
$0/MOU rate would not be the general default. While AT&T
assumed this traffic was being transmitted on a bill-and-keep
basis and it had bill-and-keep arrangements with other
CLECs, Core charges other CLECs it interconnects with,100
so there is no reason to think AT&T’s assumption is the
industry norm.
Though it may have been unclear precisely which rate
the PPUC would apply, the federal cap was not only
foreseeable, but the most likely rate. Four logical possibilities
existed: Core’s intrastate switched access tariff of
$0.014/MOU, the TELRIC rate—a state commission rate
calculated to defray costs 101—of $0.002439/MOU, the federal
99
Qwest Corp. v. Koppendrayer, 436 F.3d 859, 864 (8th Cir.
2006).
100
PPUC Initial Decision ¶ 73, J.A. 200.
101
“Total Element Long-Run Incremental Cost (‘TELRIC’) is
used to figure the cost of phone service based on incremental
cost of new equipment and new labor, or costs that would
32
cap of $0.0007/MOU, or $0/MOU. The first two were clearly
not permissible not only because they conflict with the ISP
Remand Order, but also because the rates are so much higher
than the federal cap that AT&T should have known that
whatever eventual rate the PPUC thought was fair would be
capped by federal law. Of the two remaining choices,
applying the cap as a rate was much more likely than
allowing no compensation at all. Therefore, the PPUC Orders
did not violate the rule against retroactive ratemaking.
D.
Finally, AT&T argues that the PPUC Orders violate
federal law by applying a four-year state statute of limitations
to Core’s claims instead of 47 U.S.C. § 415, which applies to
“[a]ll actions at law by carriers for recovery of their lawful
charges.” But AT&T concedes that § 415(a) applies only to
charges that are subject to federal tariffing requirements. 102
We also need not address whether the federal or state statute
of limitations applies because, as the PPUC noted in its order,
the proper federal statute of limitations is the four-year catch-
all found at 28 U.S.C. § 1658. The catch-all applies to any
federal civil action enacted after 1990 without a specific
associated cause of action.103 This includes § 251(b)(5),
which became law in 1996, and under which this case
apply in a fully competitive environment.” PPUC Initial
Decision at 21 n.12, J.A. 200.
102
See Castro v. Collecto, Inc., 634 F.3d 779, 786 (5th Cir.
2011).
103
28 U.S.C. § 1658.
33
arose.104 Thus, the PPUC’s application of a four-year statute
of limitations is proper.
IV.
AT&T had every reason to believe it could be charged
for its customers’ ISP-bound traffic that Core terminated.
Rather than voluntarily negotiating an interconnection
agreement with Core, AT&T waited, putting the onus on Core
to come forward and negotiate. In reality, the PPUC found
that Core was entitled to compensation for the traffic, and if
AT&T wanted to negotiate a bill-and-keep arrangement, it
should have done so.
Federal law does not require that Core be compensated
for the traffic. The TCA’s system of cooperative federalism
exists specifically so that state public utility commissions can
determine these kinds of questions for themselves, “with due
regard to the local conditions and the particular historical
circumstances of local regulation.”105 The FCC established
the boundary of the PPUC’s jurisdiction by implementing rate
caps. When the PPUC chose to apply a rate equal to the
federal rate cap, it respected that boundary, and furthered the
very purpose of the TCA’s scheme.
104
See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369,
381 (2004) (maintaining that § 1658 applies not only “to
entirely new sections of the United States Code[,]” but also to
“amendment[s] to an existing statute”).
105
Huber, et al., Federal Telecommunications Law § 3.3.4,
quoted in Core Commc’ns, Inc., 493 F.3d at 335.
34
We will therefore vacate the judgment of the District
Court and remand this case with instructions to grant
summary judgment in favor of Core and the members of the
PPUC.
35