Central Telephone Co. v. Sprint Communications Co. of Virginia, Inc.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CENTRAL TELEPHONE COMPANY OF 
VIRGINIA, a Virginia Corporation;
UNITED TELEPHONE SOUTHEAST,
LLC, a Virginia Limited Liability
Company; EMBARQ FLORIDA, INC.,
a Florida Corporation; UNITED
TELEPHONE COMPANY OF INDIANA,
INC., an Indiana Corporation;
UNITED TELEPHONE COMPANY OF
KANSAS, a Kansas Corporation;
UNITED TELEPHONE COMPANY OF
EASTERN KANSAS, a Delaware
Corporation; UNITED TELEPHONE  No. 12-1322
COMPANY OF SOUTHCENTRAL
KANSAS, an Arkansas Corporation;
EMBARQ MISSOURI, INC., a Missouri
Corporation; EMBARQ MINNESOTA,
INC., a Minnesota Corporation;
UNITED TELEPHONE COMPANY OF
THE WEST, a Delaware
Corporation; CENTRAL TELEPHONE
COMPANY, a Delaware Corporation;
UNITED TELEPHONE COMPANY OF
NEW JERSEY, INC., a New Jersey
Corporation;

2 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
CAROLINA TELEPHONE AND 
TELEGRAPH COMPANY, LLC, a
North Carolina Limited Liability
Corporation; UNITED TELEPHONE OF
OHIO, an Ohio Corporation;
UNITED TELEPHONE COMPANY OF
THE NORTHWEST, an Oregon
Corporation; THE UNITED
TELEPHONE COMPANY OF
PENNSYLVANIA, LLC, a
Pennsylvania Limited Liability
Corporation; UNITED TELEPHONE
COMPANY OF THE CAROLINAS LLC, a
South Carolina Limited Liability
Corporation; UNITED TELEPHONE
COMPANY OF TEXAS, INC., a Texas
Corporation; CENTRAL TELEPHONE
COMPANY OF TEXAS, a Texas

Corporation,
Plaintiffs-Appellees,
v.
SPRINT COMMUNICATIONS
COMPANY OF VIRGINIA, INC., a
Virginia Corporation; SPRINT
COMMUNICATIONS COMPANY L.P., a
Delaware Limited Partnership,
Defendants-Appellants.
VERIZON; FEDERAL COMMUNICATIONS
COMMISSION,
Amici Curiae.

CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 3
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert E. Payne, Senior District Judge.
(3:09-cv-00720-REP)
Argued: January 29, 2013
Decided: April 29, 2013
Before NIEMEYER, DUNCAN, and FLOYD,
Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opin-
ion, in which Judge Niemeyer and Judge Floyd joined.
COUNSEL
ARGUED: Timothy J. Simeone, WILTSHIRE & GRANNIS,
LLP, Washington, D.C., for Appellants. Michael J. Lockerby,
FOLEY & LARDNER, LLP, Washington, D.C., for Appel-
lees. Scott H. Angstreich, KELLOGG, HUBER, HANSEN,
TODD, EVANS & FIGEL, PLLC, Washington, D.C., for
Amicus Curiae Verizon. ON BRIEF: Christopher J. Wright,
Rachel W. Petty, WILTSHIRE & GRANNIS, LLP, Washing-
ton, D.C., for Appellants. Jennifer M. Keas, Benjamin R. Dry-
den, FOLEY & LARDNER, LLP, Washington, D.C.; Bradley
D. Jackson, FOLEY & LARDNER, LLP, Madison, Wiscon-
sin, for Appellees. Michael E. Glover, Edward Shakin, Curtis
L. Groves, VERIZON, Arlington, Virginia; Joshua D. Bran-
son, KELLOGG, HUBER, HANSEN, TODD, EVANS &
FIGEL, PLLC, Washington, D.C., for Amicus Curiae Veri-
zon. Peter Karanjia, Deputy General Counsel, Jacob M.
Lewis, Associate General Counsel, Laurel R. Bergold, Coun-
sel, FEDERAL COMMUNICATIONS COMMISSION,
4 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
Washington, D.C., for Amicus Curiae Federal Communica-
tions Commission.
OPINION
DUNCAN, Circuit Judge:
Pursuant to the provisions of the Telecommunications Act
of 1996, 47 U.S.C. §§ 151 et seq., Sprint Communications
Company of Virginia, Inc., and Sprint Communications Com-
pany L.P. (collectively "Sprint" or the "Sprint Defendants")
entered into interconnection agreements with nineteen incum-
bent local exchange carriers (collectively "CenturyLink" or
the "CenturyLink Plaintiffs") providing for the mutual
exchange of telecommunications traffic. When Sprint began
to withhold payments under the agreement, CenturyLink
brought a breach of contract claim in federal district court.
After rejecting Sprint’s threshold argument that its jurisdic-
tion was limited to reviewing determinations by State utilities
commissions, the district court entered judgment in favor of
CenturyLink on the merits. The district court judge subse-
quently also concluded that a belatedly discovered financial
interest in CenturyLink held in a managed Individual Retire-
ment Account did not require his recusal. Sprint appeals all of
the district court’s rulings; for the reasons that follow, we
affirm.
I.
A.
Prior to the Telecommunications Act of 1996 (the "1996
Act"), telephone service within a local calling area was pro-
vided by an incumbent local exchange carrier ("ILEC") oper-
ating as a state-licensed monopoly. The purpose of the 1996
Act was to create competition within these local telephone
markets.
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 5
At the core of the 1996 Act is a requirement that ILECs
"interconnect" their facilities and equipment with competitive
local exchange carriers ("CLECs"), such as Sprint, for the
mutual exchange of traffic. Defined as "the linking of two net-
works for the mutual exchange of traffic," 47 C.F.R. § 51.5,
interconnection allows CLEC customers to call ILEC custom-
ers and vice versa. While the carriers may reach agreement
through arbitration or negotiation, the product of the process
is an interconnection agreement (an "ICA"), which must
include "a detailed schedule of itemized charges for intercon-
nection and each service or network element included in the
agreement." 47 § 252(a)(1).
B.
A brief description of the corporate relationship between
Sprint and CenturyLink, and the latter’s organizational parent-
age, provides necessary background for our consideration of
the recusal issue. We then set out the underlying facts and
procedural history of the appeal before us.
When Sprint sought negotiation of the ICAs at issue in
April 2004, it and the nineteen companies that comprise the
CenturyLink Plaintiffs were wholly owned subsidiaries of
Sprint Corporation.1 The CenturyLink Plaintiffs were a part of
Sprint Corporation’s local telephone division. In May 2006,
Sprint Corporation spun off the CenturyLink Plaintiffs, which
then formed a separate company known as Embarq Corpora-
tion ("Embarq"). In July 2009, CenturyTel, Inc.
("CenturyTel") acquired Embarq and its subsidiaries. The
resulting entity began doing business as "CenturyLink."
Between 2004 and 2005 Sprint and CenturyLink executed the
nineteen ICAs that are the subject of this dispute, and which
were approved by the appropriate State commissions.2
1
We distinguish between Sprint (or the Sprint Defendants), the defen-
dant in this case, and Sprint Corporation, of which the former is a part.
2
The parties stipulated below that each ICA contains terms that are
materially the same as the terms contained in the Master Interconnection
6 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
Some general information about telecommunications traffic
provides context for our discussion of the issues in this case.
There are three ways to place a call: landline, wireless, and
Voice-over Internet Protocol ("VoIP"), which, as its name
suggests, relies on the internet to originate voice communica-
tions. See Vonage Holdings Corp. v. Nebraska Pub. Serv.
Comm’n, 564 F.3d 900, 902 (8th Cir. 2009) ("VoIP is an
internet application used to transmit voice communication
over a broadband internet connection."). Likewise, a call
placed through any of these three formats can be classified
into three categories of traffic, depending on the locational
relationship of those speaking: local,3 long distance intrastate,4
and long distance interstate. The facts giving rise to the under-
lying dispute revolve around the ICA’s compensation struc-
ture for these three categories of traffic.
In assessing the appropriate compensation for a local, long
distance intrastate, and long distance interstate call, the rele-
vant metrics are where a call originated and where it terminated.5
This determination is often referred to in the telecommunica-
tions industry as the "jurisdictionalizing" of a call. All the
calls at issue in this case originated on Sprint’s network and
were terminated by one of the CenturyLink Plaintiffs on its
local network.
Agreement for the State of Virginia (the "Virginia ICA") executed
between Sprint and Central Telephone Company of Virginia, which is one
of the CenturyLink Plaintiffs. J.A. 316. Thus, when considering Centu-
ryLink’s breach of contract claim, we refer to each of the ICAs at issue
simply as "the ICA," and, when discussing the ICA, we look to the provi-
sions of the Virginia ICA found in the J.A. at 710-86.
3
Local calling areas—also known as Local Access and Transport Areas,
or LATAs—were formed in 1984 following the breakup of AT&T. They
do not necessarily follow existing state, province, or area code borders.
4
A long distance intrastate call originates and terminates within the bor-
ders of a state, but travels from one LATA to another.
5
A carrier "terminates" a call by routing it from another carrier to a cus-
tomer in its own network.
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 7
The ICA first addresses local traffic. In salient part, the
ICA defines local traffic as traffic "that is originated and ter-
minated within Sprint’s local calling area." J.A. 718. The ICA
applies to local traffic a practice known as "Bill & Keep" or
"reciprocal compensation." As § 38.1 of the ICA explains,
"[u]nder Bill and Keep, each Party retains the revenues it
receives from end user customers, and neither Party pays the
other Party for terminating Local Traffic which is subject to
the Bill and Keep compensation mechanism." J.A. 744. In
brief, no payments exchange hands for the termination of
local traffic.
By contrast, the ICA provides for "access charges"6 for the
two categories of long distance traffic discussed above: intra-
state and interstate. Under the ICA, the applicable access
charge depends on the category of long distance traffic.
All three categories of traffic—local, long distance intra-
state, and long distance interstate—travel across "trunks." See
47 C.F.R. § 69.2(x) (defining "trunk" as including "transmis-
sion media such as radio, satellite, wire, cable and fiber optic
cable means of transmission"). The parties stipulated below
that Sprint delivers some traffic to CenturyLink via local
interconnection trunks, and other traffic by way of Feature
Group D ("FGD") trunks. J.A. 315. FGD trunks carry long
distance traffic only. Id. at 316. FGD trunks attach to local
interconnection trunks, and thus enable long distance traffic to
be terminated on one of CenturyLink’s local networks.
The dispute in this case only involves VoIP traffic, which
travels over FGD trunks (for a long distance call) and over
6
A carrier typically pays an access charge when a long distance call
originating from its own network is terminated on the local network of
another carrier. See 47 C.F.R. § 69.2(a). The FCC defines "access charge"
as a "fee charged subscribers or other telephone companies by a local
exchange carrier for the use of its local exchange networks." See FCC,
Glossary of Telecommunication Terms, available at http://
transition.fcc.gov/glossary.html.
8 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
local interconnection trunks.7 Section 38.4 of the ICA
addresses the compensation system for the termination of
VoIP traffic: "Voice calls that are transmitted, in whole or in
part, via the public Internet or a private IP network (VoIP)
shall be compensated in the same manner as voice traffic (e.g.
reciprocal compensation, interstate access and intrastate
access)." J.A. 746.
Sprint paid CenturyLink access charges for VoIP traffic as
set out in § 38.4 from the time of the execution of the ICAs
between the parties in 2004 and 2005 until June 2009. At that
point, Sprint began filing written disputes with CenturyLink.
Although the nature of Sprint’s objections changed, its core
contention appeared to be twofold: (1) that the ICA did not
apply to long distance VoIP traffic that traveled over FGD
trunks; and (2) that CenturyLink had billed Sprint at an
improperly high rate for VoIP traffic since May 1, 2007.
Instead of following the Dispute Resolution Procedure
established in the ICA, Sprint unilaterally reduced the rate for
termination of VoIP-originated traffic. It demanded that Cen-
turyLink apply Sprint’s recalculated rate going forward and
remit portions of previous payments made by Sprint which
Sprint deemed to be in excess of what it should have paid.
Sprint withheld payments for both VoIP and non-VoIP traffic,
although no dispute concerning the latter existed.
C.
In November 2009, CenturyLink filed a complaint in the
United States District Court for the Eastern District of Vir-
ginia alleging one count of breach of contract based on the
7
CenturyLink’s breach of contract claim only concerns long distance
VoIP traffic, i.e., VoIP traffic that traveled over FGD trunks before Centu-
ryLink terminated it on a local network. Sprint’s counterclaim, which we
describe in the next section, concerns whether certain VoIP traffic is prop-
erly deemed local or long distance.
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 9
facts recounted above. Sprint moved to dismiss CenturyLink’s
complaint for lack of jurisdiction due to failure to exhaust
administrative remedies, or, alternatively, to stay the case
under the doctrine of primary jurisdiction. Sprint also filed a
counterclaim alleging, inter alia, that CenturyLink breached
the North Carolina ICA (the "NC ICA") by billing Sprint for
local traffic not subject to access charges.
The district court denied Sprint’s motion to dismiss in a
lengthy opinion. It concluded that it had federal question
jurisdiction under Supreme Court and circuit precedent inter-
preting the 1996 Act. It then decided that the 1996 Act
imposed no requirement for CenturyLink to exhaust its reme-
dies before a State commission. Finally, it declined to stay the
case under the doctrine of primary jurisdiction, which allows
a court to refer a case within its jurisdiction to an administra-
tive agency.
The district court conducted a bench trial on CenturyLink’s
breach of contract claim during August and September 2010.
It subsequently entered judgment in favor of CenturyLink,
and issued a memorandum opinion setting out findings of fact
and conclusions of law. The district court concluded that "in
refusing to pay the access charges as billed, Sprint breached
its duties under the ICAs, which clearly included paying
access charges for VoIP-originated traffic according to the
jurisdictional endpoints of the calls." Cent. Tel. Co. of Va. v.
Sprint Commc’ns Co. of Va., Inc., 759 F. Supp. 2d 789, 792
(E.D. Va. 2011). Central to the district court’s decision was
its finding that § 38.4 of the ICA operated to apply the com-
pensation regime for local, long distance intrastate, and long
distance interstate traffic to VoIP calls.8 Although the district
8
In reaching this conclusion, the district court relied on, inter alia, the
prepared direct testimony submitted to the Florida Public Service Com-
mission by James R. Burt, Director of Regulatory Policy for Sprint Corpo-
ration, in 2004. Explaining Sprint’s interpretation of language identical to
§ 38.4 in the ICA at issue in this case, Mr. Burt observed:
10 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
court did not find the relevant portions of the ICA to be
ambiguous, it noted that if ambiguity existed, it would be con-
strued against Sprint as the drafter of the ICA.9 The district
court then awarded CenturyLink $23,376,213.76, which con-
sisted of damages under the breach of contract claim and pre-
judgment interest.
The second phase of the litigation, the bench trial on
Sprint’s counterclaim, took place over two days in December
2010. Unlike CenturyLink’s breach of contract claim, which
focused on long distance VoIP traffic, Sprint’s counterclaim
alleged that CenturyLink had improperly charged it for local
VoIP calls.10 Recognizing that the ICA’s "Bill and Keep" pro-
vision did not provide for access charges for local traffic, the
district court rejected Sprint’s argument that the ICA did not
permit CenturyLink’s use of the Billing Telephone Number
("BTN") method for determining whether a call should be
deemed local. Under the BTN method, a carrier classifies a
call as local or nonlocal for billing purposes based on a
unique account number that is assigned to a specific facility.
Sprint contended that CenturyLink was required to use
another method for "jurisdictionalizing" a call known as the
It is Sprint’s position that a VoIP call that originates or terminates
on Sprint’s network should be subject to the jurisdictionally
appropriate inter-carrier compensation rates. In other words, if
the end points of the call define the call as an interstate call, inter-
state access charges apply. If the end points define the call as
intrastate, intrastate access charges apply. If the end points define
the call as local traffic, reciprocal compensation charges apply.
J.A. 694.
9
The district court found as a factual matter that "the dominant influence
that Sprint employees outside the company’s local telephone division
wielded respecting the ICAs’ terms, for all practical purposes, made Sprint
the singular drafter. . . ." Cent. Tel. Co. of Va., 759 F. Supp. 2d at 804.
Sprint does not challenge this factual finding on appeal.
10
We provide here only a cursory description of the facts relevant to
Sprint’s counterclaim, and discuss them in more detail infra in III.B.
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 11
"Calling Party Number" or "CPN." CenturyLink used BTN
throughout the period in dispute, in part because at the time
the parties executed the NC ICA, CenturyLink did not have
the software in place to use the CPN method. See J.A. 490-91.
The district court found that the NC ICA did not specify a
method for identifying local calls, but instead incorporated by
reference a telecommunications industry publication that
explicitly permitted use of the BTN method. Alternatively, the
district court again construed any ambiguity in the NC ICA
against Sprint as the drafter.
D.
By May 10, 2011, the district court judge had presided over
both bench trials, had ruled on Sprint’s jurisdiction motion,
had entered judgment for CenturyLink on its breach of con-
tract claim, including the issuance of an accompanying 50-
page memorandum opinion, and had begun drafting the opin-
ion on Sprint’s counterclaim. On that date, as the district
judge was preparing his financial disclosure for financial year
2010, he discovered that he had owned eighty shares of Cen-
turyLink in a managed Individual Retirement Account
("IRA") during the time he presided over this case.
Fund managers made decisions to buy and sell stocks in the
IRA, which at any given time held shares in as many as 200
companies, without input from the judge. The fund managers
initially purchased shares in Embarq, which subsequently
converted into forty-seven shares in CenturyTel following its
acquisition of Embarq. The fund managers’ subsequent pur-
chases of CenturyTel stock in October 2009 and March 2010
brought the district court judge’s total holdings up to eighty
shares, which represented between 0.52% and 0.81% of the
value of the IRA. In July 2010, the district court judge had
filed his 2009 financial disclosure form, which reflected that
the IRA held eighty shares in CenturyTel.11 Because Century-
11
In June 2010, the name was changed to CenturyLink. To minimize
confusion, we refer to "CenturyLink shares" throughout.
12 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
Tel was not a party to this case, the computerized system used
to identify potential conflicts did not register any conflict. J.A.
139-40.
As soon as the district court judge discovered that his IRA
owned shares in CenturyLink, he initiated a conference call to
inform the parties. He explained the situation, and stated that
he was "not qualified under the canons of ethics to sit as a
judge in this case." J.A. 129. He then noted: "I don’t know
that there’s any alternative but for me to vacate the orders that
I’ve entered in the case and recus[e] myself and hav[e] the
case reassigned to some other judge to make a decision." J.A.
130. Counsel for CenturyLink requested time to research the
recusal and vacatur issues before the judge took any action.
Hearing no objection from counsel for Sprint, the district
court judge gave CenturyLink one week to conduct research
and, if desired, file a brief.
On May 16, 2011 CenturyLink moved for the district court
judge to divest from CenturyLink, or, in the alternative, to
recuse without vacating any of the previous orders and opin-
ions. In the interval between the conference call and the filing
of CenturyLink’s motion, the district court judge conducted
additional research, and came to the conclusion that his earlier
statements rested on a misinterpretation of the ethical rules.
He therefore had the parties agree to a briefing schedule to
address the recusal issue. He also directed the IRA fund man-
ager to sell the shares of CenturyLink immediately, which
was done on May 17, 2011.
After considering briefing from the parties, the district
court judge concluded that (1) his statements during the con-
ference call did not constitute recusal; (2) allowing briefing of
the recusal issue as a response to CenturyLink’s request was
permissible; and (3) neither relevant subsection of the statu-
tory provision governing recusal, 28 U.S.C. § 455, required
recusal or vacatur. He issued a written opinion on the recusal
issue on December 12, 2011, and, on the following day, a sep-
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 13
arate opinion in which he ruled in favor of CenturyLink on
the merits of Sprint’s counterclaim.
Sprint’s appeal followed.
II.
This appeal raises questions of federal and state jurisdiction
under the 1996 Act, and also implicates a decision of the Fed-
eral Communications Commission (the "FCC"). We therefore
requested the FCC to submit an amicus brief.12 We incorpo-
rate the FCC’s views in our discussion as appropriate.
Sprint advances two reasons why the district court should
not have reached the merits of this case. It first argues that the
district court had no authority under the 1996 Act to interpret
and enforce an ICA because its role is limited to reviewing a
State commission determination, and no such determination
occurred here. It further contends that the district court judge
should have recused himself and vacated all orders and judg-
ments issued in the case. Before considering each argument,
we briefly describe pertinent parts of the 1996 Act.
A.
Section 252 of the 1996 Act requires carriers to submit
their proposed ICA to the applicable State commission, which
"shall approve or reject the agreement, with written findings
as to any deficiencies." 47 U.S.C. § 252(e)(1) If a State com-
mission fails to approve or reject a proposed ICA within
ninety days of an ICA adopted by negotiation or within thirty
days of an ICA adopted by arbitration, the ICA is deemed
12
Specifically, we asked the FCC to address the effect our decision
might have on parallel proceedings pending before the FCC and its posi-
tion, if any, on whether disputes over ICA provisions must be presented
to a State commission before they are subject to review in a federal district
court.
14 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
approved. § 252(e)(4). By contrast, if the State commission
fails to "carry out its responsibility under [section 252] in any
proceeding or other matter under [section 252]," the FCC
must preempt the State commission and assume whatever
responsibility it otherwise possessed. § 252(e)(5). The 1996
Act does not define what constitutes a "responsibility" for
purposes of § 252(e)(5).
Section 252(e)(6) provides for review of State commission
actions in two distinct ways. First, when the FCC preempts a
state commission under section 252(e)(5), section 252(e)(6)
makes the FCC proceeding and any judicial review of that
proceeding the "exclusive remedies for a State commission’s
failure to act." Second, section 252(e)(6) provides that "[i]n
any case in which a State commission makes a determination
under this section, any party aggrieved by such determination
may bring an action in an appropriate Federal district court to
determine whether the agreement or statement meets the
requirements of section 251 of this title and this section."
B.
Sprint urges us to read the 1996 Act as permitting only
State commissions to interpret and enforce ICAs in the first
instance. In Sprint’s view, because no State commission con-
sidered the ICA dispute before the district court did, the dis-
trict court lacked authority to do so. Sprint first argues the
1996 Act contains a statutory exhaustion requirement. Even if
the text and structure of the 1996 Act do not mandate initial
State commission consideration, Sprint contends that we
should impose such a requirement as a prudential matter. Both
arguments raise legal questions, which we review de novo.
See Cavalier Tel., LLC. v. Va. Elec. & Power Co., 303 F.3d
316, 322 (4th Cir. 2002). We begin with the former.
1.
In considering whether the 1996 Act bestows on State com-
missions the exclusive responsibility to interpret and enforce
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 15
ICAs in the first instance, it is useful to begin by identifying
what is not at issue in this case. Following the Supreme
Court’s decision in Verizon Maryland, Inc. v. Public Service
Commission of Maryland, 535 U.S. 635 (2002), and our deci-
sion in Verizon Maryland, Inc. v. Global NAPS, Inc., 377 F.3d
355 (4th Cir. 2004), it is clear that a federal court has jurisdic-
tion to interpret the terms of interconnection-related compen-
sation provisions in an ICA under 28 U.S.C. § 1331. Sprint
does not argue otherwise. Instead, Sprint contends that
although the 1996 Act confers federal question jurisdiction
over the dispute in this case, it restricts federal courts to
reviewing initial determinations made by State commissions.
Sprint’s argument assumes that a State commission has the
authority to interpret and enforce an ICA. Interestingly, noth-
ing in the 1996 Act’s text so provides. Nonetheless, every cir-
cuit to have considered the question has concluded that a State
commission does have such authority. See Core Commc’ns,
Inc. v. Verizon Pa., Inc., 493 F.3d 333, 342–44 (3d Cir. 2007);
Sw. Bell Tel., L.P. v. Pub. Util. Comm’n, 467 F.3d 418, 422
(5th Cir. 2006); E.SPIRE Commc’ns, Inc. v. N.M. Pub. Regu-
lation Comm’n, 392 F.3d 1204, 1207 (10th Cir. 2004); Iowa
Network Servs., Inc. v. Qwest Corp., 363 F.3d 683, 691–92
(8th Cir. 2004); BellSouth Telecomms., Inc. v. MCImetro
Access Transmission Servs., Inc., 317 F.3d 1270, 1277 (11th
Cir. 2003) (en banc); MCI Telecomms. Corp. v. Ill. Bell Tel.
Co., 222 F.3d 323, 337–38 (7th Cir. 2000); Sw. Bell Tel. Co.
v. Brooks Fiber Commc’ns of Ok., Inc., 235 F.3d 493, 497
(10th Cir. 2000).13 The FCC has as well. In re Starpower
Commc’ns, LLC, 15 F.C.C.R. 11277, 11280 (F.C.C. 2000).
13
Although the Ninth Circuit in Pacific Bell v. Pac-West Telecomm, Inc.
did not directly address this question, it used language suggesting that a
State commission had the authority to enforce an ICA. See 325 F.3d 1114,
1126 (9th Cir. 2003) ("It is clear from the structure of the Act, however,
that the authority granted to state regulatory commissions is confined to
the role described in § 252—that of arbitrating, approving, and enforcing
interconnection agreements." (emphasis added)).
16 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
Although we have yet to address this issue,14 we need not do
so here because we reject Sprint’s more particularized claim
that a State commission must interpret an ICA before a fed-
eral district court can do so.
We begin with the text of the 1996 Act. Just as there is no
statutory text granting State commissions the authority to
interpret and enforce the provisions of ICAs, there is similarly
none granting them the exclusive authority to do so in the first
instance. See Core Comm’cns, 493 F.3d at 340 ("[T]he [1996]
Act is simply silent as to the procedure for post-formation dis-
putes."). Congress could have made review by a State com-
mission in the first instance an exclusive remedy; it used this
very phrase when discussing the review of an FCC preemp-
tion action. See 47 U.S.C. § 252(e)(6) ("In a case in which a
State fails to act as described in [§ 252(e)(5)], the proceeding
by the [FCC] under such paragraph and any judicial review of
the [FCC]’s actions shall be the exclusive remedies for a State
commission’s failure to act." (emphasis added)). But Con-
gress did not do so.
Notwithstanding the 1996 Act’s textual silence on this
point, Sprint argues that language in § 252(e)(6) requires a
State commission to make a "determination" before a federal
district court can act. Specifically, Sprint points to the follow-
ing: "In any case in which a State commission makes a deter-
mination under this section, any party aggrieved by such
determination may bring an action in an appropriate Federal
district court. . . ." § 252(e)(6). We disagree. The plain import
of this language is to provide for federal court review of a
State commission’s decision to approve or reject a proposed
ICA.15 This conclusion is reinforced by the fact that the 1996
14
In an unpublished opinion, we have reviewed a State commission’s
interpretation of an ICA without commenting on that State commission’s
authority to interpret the ICA. See dPi Teleconnect LLC v. Owens, 413 F.
App’x 641, 644-45 (4th Cir. 2011).
15
We note that section 252(e) is entitled "Approval by State commis-
sion." It is therefore appropriate to interpret the language of § 252(e)(6) in
light of the section’s overall purpose of providing guidance concerning the
approval process for an ICA.
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 17
Act precludes such review by state courts. See § 252(e)(4)
("No State court shall have jurisdiction to review the action
of a State commission in approving or rejecting [an ICA]
. . . .").
Nonetheless, Sprint seeks to rely on cases that interpret
"determination" in § 252(e)(6) to include a State commis-
sion’s post-formation interpretation or enforcement of an
ICA. See e.g., Bellsouth Telecomms., 317 F.3d at 1277; Sw.
Bell Tel. Co. at 497 ("We next conclude that the district court
had jurisdiction to review the decision of the [Oklahoma Cor-
poration Commission] interpreting the Interconnection Agree-
ment."). Sprint’s reliance is misplaced. In recognizing that a
federal court’s authority to review State commission actions
includes the authority to review a State commission’s inter-
pretation or enforcement of an ICA provision, these cases nei-
ther explicitly nor implicitly hold that parties must bring a
dispute concerning an ICA to a State commission in the first
instance. Rather, they simply acknowledge that where parties
make a State commission the first stop for interpreting or
enforcing a provision in an ICA, the language of § 252(e)(6)
provides that it need not be the last stop.16
What Sprint terms its "structural" argument—that the struc-
ture of the 1996 Act gives State commissions "plenary author-
ity" over the interpretation of an ICA in the first instance, and
limits federal courts to a reviewing role—merely repackages
16
For example, although Sprint characterizes the Eleventh Circuit’s en
banc holding in BellSouth Telecommunications as imposing the type of
initial State commission consideration it advocates in this case, this char-
acterization is inaccurate. Instead, the en banc court, reversing a panel
decision holding that the State commission in Georgia lacked authority
under the 1996 Act to interpret an ICA, concluded that "the Georgia Pub-
lic Service Commission has the authority under federal law to interpret
and enforce the interconnection agreements at issue between the parties
and that its determination is subject to review in the federal courts." 317
F.3d at 1279. The Eleventh Circuit simply did not decide whether the 1996
Act requires a State commission to interpret an ICA in the first instance.
18 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
the same textual argument. Just as Sprint cannot ground its
textual argument in any text, neither can it point to any struc-
tural features of the 1996 Act indicating that Congress
intended to mandate initial State commission consideration.
Nor does Sprint’s vague appeal to "cooperative federalism"
advance its argument. As we have observed, adhering to the
1996 Act’s policy of cooperative federalism requires close
attention to the role that Congress (and the FCC) has actually
assigned to State commissions. See BellSouth Telecomms.,
Inc. v. Sanford, 494 F.3d 439, 449 (4th Cir. 2007) ("States’
continuing exercise of authority over telecommunications
issues forms part of a deliberately constructed model of coop-
erative federalism, under which the States, subject to the
boundaries set by Congress and federal regulators, are called
upon to apply their expertise and judgment and have the free-
dom to do so." (emphasis added)). Here, neither the plain text
of the 1996 Act nor its structure evince congressional intent
to place exclusive authority to interpret an ICA in the first
instance in a State commission.
Sprint further contends that even if the text and structure of
the 1996 Act do not require initial State commission consider-
ation, deference to the FCC’s Starpower decision should lead
us to construe the statute as imposing such a requirement.17 In
Starpower, the FCC considered whether to preempt the Vir-
ginia State Corporation Commission ("Virginia Commis-
sion") when the Virginia Commission took no action on a
disputed issue arising from an ICA. The FCC concluded first
that the Virginia Commission had the authority to interpret
and enforce an ICA, and then decided that preemption was
proper because "a state commission’s failure to ‘act to carry
out its responsibility’ under section 252 can in some circum-
17
We agree that where, as here, Congress has not spoken directly to a
particular question in the legislative text, it is appropriate to defer to a per-
missible construction of that statute by an administrative agency. See FDA
v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000); Chev-
ron v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984).
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 19
stances include the failure to interpret and enforce existing
[ICAs]." Starpower, 15 F.C.C.R. at 11280 (emphasis added).
There is some support for Sprint’s argument that Starpower
advocates initial State commission consideration of ICA pro-
visions. In Core Communications, the Third Circuit purported
to apply Chevron deference to the FCC decision’s in Star-
power. 493 F.3d at 338-39. In what it acknowledged to be a
"broad" reading of Starpower, that court interpreted the
FCC’s observation that a State commission’s responsibility
under § 252(e)(6) can "in some circumstances include the fail-
ure to interpret and enforce existing [ICAs]," Starpower, 15
F.C.C.R. at 11280, as conferring an exclusive authority on
State commissions to resolve disputes over ICAs in the first
instance. Core Commc’ns, 493 F.3d at 342.
In its amicus brief in this case, however, the FCC disputed
that it had taken such a position in Starpower, describing the
Third Circuit’s interpretation as "incorrect."18 FCC Amicus
Br. at 15. The FCC agrees that Starpower gives State commis-
sions the responsibility to interpret and enforce an ICA "when
asked to do so" by the parties, but emphasizes that the deci-
sion "does not hold that state commissions are the only enti-
ties with that responsibility." Id. Moreover, the FCC argues
that reading the Act to grant exclusive authority to State com-
missions to interpret and enforce ICAs would be "inconsistent
with the broad adjudicatory authority that [other sections] of
the [1996] Act confer on the FCC and federal district courts."
Id. at 11. Finding this interpretation of the proper allocation
of decisional authority between federal courts and State com-
missions consistent with our reading of the 1996 Act, we
decline Sprint’s invitation to follow the Third Circuit and
accord Chevron deference to a position the FCC did not take.
18
Verizon also submitted an amicus brief arguing that the district court
had authority to adjudicate CenturyLink’s claims in the first instance
under the 1996 Act. Neither Verizon’s nor the FCC’s amicus brief took
a position on the merits of the dispute between Sprint and CenturyLink.
20 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
Accordingly, we hold that the 1996 Act does not require a
State commission to interpret and enforce an ICA in the first
instance.
2.
Sprint next argues that even if the 1996 Act does not man-
date initial State commission consideration, we should none-
theless impose this step as a prudential exhaustion
requirement. Sprint contends that State commissions neces-
sarily bring a level of expertise to the consideration of inter-
connection issues that federal courts lack. Where, as here,
Congress has legislated no explicit exhaustion requirement,
we are nonetheless "guided by congressional intent in deter-
mining whether application of the [exhaustion] doctrine
would be consistent with the statutory scheme." Cavalier Tel.,
303 F.3d at 322 (quoting Patsy v. Bd. of Regents of Fl., 457
U.S. 496, 501 n.4 (1982)). Cognizant of the "virtually unflag-
ging obligation" to exercise that jurisdiction which we pos-
sess, Colorado River Water Conservation District v. United
States, 424 U.S. 800, 818 (1976), we must use our sound judi-
cial discretion to "balance the interest of the individual in
retaining prompt access to a federal judicial forum against
countervailing institutional interests favoring exhaustion,"
Cavalier Telephone, 303 F.3d at 323 (quotation and citation
omitted). Here, that balance tips against imposing an exhaus-
tion requirement.
An exhaustion requirement would neither align with con-
gressional intent nor serve one of the exhaustion doctrine’s
core purposes. As we have noted, the purpose of the 1996 Act
was to introduce the benefits of competition into the local
telecommunications market. An exhaustion requirement exists
in part to promote efficiency. See Woodford v. Ngo, 548 U.S.
81, 89 (2006) ("Claims generally can be resolved much more
quickly and economically in proceedings before an agency
than in litigation in federal court."). The goals of competition
and efficiency would only be disserved by a requirement that
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 21
the underlying merits of a dispute between Sprint and Centu-
ryLink be considered by multiple individual State commis-
sions with the attendant risk of disparate interpretations and
dispositions. Nor are we persuaded that State commissions
necessarily possess superior expertise to resolve such dis-
putes. Congress certainly did not agree, as it expressly pro-
vided for the FCC to act when a State commission has failed
to do so, and for federal courts to review such disputes in any
event. For these reasons, we conclude that neither the text of
the 1996 Act nor prudential considerations compel federal
deference to State commissions in the first instance.
C.
In its second challenge to the district court’s authority to
decide the merits of this case, Sprint argues that the district
court judge’s discovery of a financial interest in CenturyLink
required recusal and vacatur of all opinions and orders already
issued. We review a district judge’s recusal decision for abuse
of discretion. Newport News Holdings Corp. v. Virtual City
Vision, Inc., 650 F.3d 423, 432 (4th Cir. 2011).
Sprint advances two arguments under the judicial recusal
statute, 28 U.S.C. § 455. First, in Sprint’s view, recusal here
was mandatory because the district court judge knew that he
had a "financial interest in . . . a party to the proceeding."
§ 455(b)(4). Alternatively, Sprint argues that the district court
judge should have recused himself because "his impartiality
might reasonably be questioned." § 455(a). We consider each
in turn.
1.
Relying in part on the Federal Circuit’s decision in Shell
Oil Co. v. United States, 672 F.3d 1283 (Fed. Cir. 2012),
Sprint contends that the 2009 financial disclosure form that
the district court judge completed in July 2010 established
knowledge of his financial interest in CenturyLink before he
22 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
took any significant action in this case. See Appellant’s Br. at
50. Generally, a "financial interest" is "ownership of a legal
or equitable interest, however small . . . in the affairs of a
party." § 455 (d)(4). And "it is well-established that the own-
ership of stock constitutes a ‘financial interest’" for purposes
of § 455(b)(4). Shell Oil, 672 F.3d at 1289.
Sprint’s argument, however, fails to distinguish between
direct ownership of securities and ownership of securities in
a common investment fund over which a judge exercises no
management responsibilities. The judicial recusal statute spe-
cifically carves out the latter situation from the definition of
a "financial interest": "Ownership in a mutual or common
investment fund that holds securities is not a ‘financial inter-
est’ in such securities unless the judge participates in the man-
agement of the fund." § 455(d)(4)(i). Congress created this
exception to enable judges to hold securities without risking
recusal across a broad range of cases. See New York City Dev.
Corp. v. Hart, 796 F.2d 976, 980 (7th Cir. 1986) ("When
Congress amended § 455 in 1974, it designed § 455(d)(4)(i)
as a safe harbor, a way for judges to hold securities without
needing to make fine calculations of the effect of a given suit
on their wealth."). Moreover, the operation of § 455(d)(4)(i)
is "mechanical": "Just as § 455(b)(4) requires disqualification
when there is any financial interest, however small, so
§ 455(d)(4)(i) eliminates any inquiry into the size of the likely
effect of a decision on the value of securities held through a
mutual fund." Id. (citation omitted).
The safe harbor exception created in § 455(d)(4)(i) applies
here. J.A. 514. Although the recusal statute does not define
"common investment fund," the core elements, which include
assets held together in trust in order to provide "satisfactory
diversification" and a "reduction of administrative expenses,"
see 26 C.F.R. § 1.408–2(b)(5)(ii); see also Federal Tax Coor-
dinator ¶ H-12205 (2d.), 1997 WL 511225 (defining "com-
mon investment fund" as "a tax-exempt group trust created to
provide a diversification of investments or a reduction of
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 23
administrative expenses" "into which IRA assets may be com-
mingled"), are found here. The record demonstrates that the
district court judge held the CenturyLink shares in an IRA
"along with the assets of many others who hold similar
accounts." J.A. 514. The record also indicates that
"[d]ecisions to buy and sell stocks in the IRA were made by
the fund managers without input from the presiding judge."
J.A. 128. Thus, the shares at issue here were held in a com-
mon investment fund in whose management the district court
judge did not participate.19 Accordingly, the district court
judge’s ownership of shares in CenturyLink does not consti-
tute a "financial interest" in CenturyLink for purposes of
§ 455(b). See Hart, 796 F.2d at 980 ("Because the underlying
assets are not a ‘financial interest’ of the judge it is unneces-
sary and inappropriate to inquire how a case might affect the
value of the fund’s assets.").
2.
Sprint alternatively argues that § 455(a) required recusal
because the district court judge should have known about his
interest in CenturyLink, and a reasonable observer would
ascribe such knowledge to him and call into question his par-
tiality. We note at the outset that a judge whose conduct has
satisfied the § 455(d)(4)(i) safe harbor will almost certainly
have complied with § 455(a) by acting in a reasonable and
impartial manner. See Hart, 796 F.2d at 980 (noting that using
§ 455(a) as a "back door . . . inquiry into the substantiality of
the effect on the value of assets" held in a managed fund is
inappropriate, and holding that "[a] reasonable person would
not question the impartiality of a judge who holds nothing but
19
If the judge learned that fund managers had purchased stock in a com-
pany which had a case before him, he could instruct the fund managers to
sell that stock. See J.A. 128 n.3. This sensible practice, which the district
court judge employed here soon after learning of his IRA’s ownership of
stock in CenturyLink, does not amount to participation in the management
of the IRA so as to remove the protection of § 455(d)(4)(i)’s safe harbor.
24 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
well diversified mutual funds"). Even if one could imagine a
scenario where § 455(d)(4)(i) applies but a judge’s partiality
might reasonably be questioned, such a scenario is not present
here. Given the small number of shares the district court judge
held, the fact that the CenturyLink shares only came into his
portfolio after a series of mergers about which he was
unaware, and, as we have noted, that he held the shares in an
IRA managed by others, a reasonable observer would have no
cause to question his impartiality. His prompt action to inform
the parties of his stock when he learned of it, and to divest
from CenturyLink shortly thereafter further supports this con-
clusion.
The district court judge did not violate the recusal statute,
and therefore did not abuse his discretion in deciding that nei-
ther recusal nor vacatur was appropriate.
III.
Having concluded that the district court properly reached
the merits of this case, we now consider whether it decided
them correctly. Sprint raises two challenges. First, Sprint
asserts that the district court misconstrued the ICA as apply-
ing to long distance VoIP traffic. Second, it contends that
CenturyLink impermissibly billed Sprint for local calls. When
reviewing a district court’s judgments after a bench trial, we
accept factual findings unless they are clearly erroneous and
examine conclusions of law de novo. Plasterers’ Local Union
No. 96 Pension Plan v. Pepper, 663 F.3d 210, 215 (4th Cir.
2011).
As the district court did, we apply Virginia law to Centu-
ryLink’s breach of contract claim, Cent. Tel. Co. of Va., 759
F. Supp. 2d at 797 n.4, and North Carolina law to Sprint’s coun-
terclaim.20 To succeed on a breach of contract claim, the
20
As relevant to this case, the applicable North Carolina and Virginia
contract principles are substantively alike. Moreover, because an ICA is
a "creation of federal law," Verizon, Md., 377 F.3d at 364, we also look
to our own precedent.
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 25
plaintiff must prove by a preponderance of the evidence that
a legally enforceable obligation existed between it and the
defendant; that the defendant breached that obligation; and
that the plaintiff incurred damages as a result of the breach.
See Sunrise Continuing Care, LLC v. Wright, 671 S.E. 2d
132, 135 (Va. 2009) (citation omitted); Birtha v. Stonemor,
N.C., LLC, 727 S.E.2d 1, 9 (N.C. Ct. App. 2012). Both Centu-
ryLink’s claim and Sprint’s counterclaim implicate the first of
these elements. We interpret a contract as written and, when
its terms are clear and unambiguous, we construe the contract
"according to its plain meaning." City of Chesapeake v. States
Self-Insurers Risk Retention Grp., Inc., 628 S.E. 2d 539, 541
(Va. 2006); State v. Philip Morris USA Inc., 685 S.E.2d 85,
90 (N.C. 2009).
Where ambiguities arise, however, the "basic contract law
principle contra proferentem counsels that we construe any
ambiguities in the contract against its draftsman." Maersk
Line, Ltd. v. United States, 513 F.3d 418, 423 (4th Cir. 2008);
Station Assocs., Inc. v. Dare Cnty., 501 S.E.2d 705, 708 (N.C.
Ct. App. 1998) rev’d on other grounds, 513 S.E.2d 789 (N.C.
1999). Finally, a settled rule of contract interpretation allows
consideration of the "practical construction put by the parties
upon the terms of their own contract." First Nat. Exch. Bank
of Roanoke v. Roanoke Oil Co., 192 S.E. 764, 771 (Va. 1937);
see also id. ("No rule for the construction of written instru-
ments is better settled than that which attaches great weight
to the construction of the instrument by the parties them-
selves." (citation omitted)); Century Commc’ns, Inc. v. Hous.
Auth. of Wilson, 326 S.E.2d 261, 264 (N.C. 1985). Armed
with these principles, we turn to Sprint’s arguments.
A.
Sprint first argues that the ICA does not apply to long dis-
tance VoIP traffic carried over FGD trunks. In its thorough
opinion on CenturyLink’s breach of contract claim, the dis-
trict court explained how local calls are subject to "Bill and
26 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
Keep" reciprocal compensation under § 38.1 of the ICA,
while the ICA set out specific access charges for intrastate
long distance and interstate long distance traffic. In the district
court’s view, § 38.4 of the ICA, which provides that "[v]oice
calls that are transmitted, in whole or in part, via the public
Internet or a private IP network (VoIP) shall be compensated
in the same manner as voice traffic (e.g., reciprocal compen-
sation, interstate access and intrastate access)," J.A. 746,
applied that existing compensation regime to VoIP traffic.
On appeal, instead of directly challenging this interpreta-
tion of the ICA, Sprint argues that the ICA’s "plain language"
only covers interconnection of local networks, of which FGD
trunks are not a part.21 Thus, under Sprint’s view, the compen-
sation regime set out in § 38.4 does not apply to VoIP traffic
carried over FGD trunks. Appellant’s Br. at 35. The "plain
language" which Sprint cites includes provisions that (1)
define the scope of the ICA as relating to the establishment
of "Local Interconnection," § 2.1; (2) set out guidance for the
"Local Interconnection Trunk Arrangement," § 37; and (3)
define the "Physical Point of Interconnection" as "the physical
point that establishes the technical interface, the test point,
and the operational responsibility hand-off between CLEC
and Sprint for the local interconnection of their networks,"
§ 1.55, see Appellant’s Br. at 35. But given that federal law
defines interconnection simply as "the linking of two net-
works for the mutual exchange of traffic," 47 C.F.R. § 51.5,
and nothing in the ICA defines it otherwise, none of these
provisions advances Sprint’s position. Simply put, the ICA is
ambiguous as to whether local interconnection includes or
excludes long distance VoIP traffic carried over FGD trunks.
This ambiguity,22 along with the parties’ previous course of
21
Sprint acknowledges that FGD trunks connect long distance networks
to local networks. See Appellant’s Br. at 37 (quoting J.A. 86).
22
Whether language in a contract is ambiguous is reviewed de novo as
a question of law. Eure v. Norfolk Shipbuilding & Drydock Corp., Inc.,
561 S.E.2d 663, 667 (Va. 2002).
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 27
dealings, compels us to reject Sprint’s argument. The district
court found, and Sprint does not challenge, that it drafted the
ICAs at issue here. Had Sprint intended to exclude FGD
trunks from the scope of the ICA, a simple provision stating
that the established compensation framework for VoIP traffic
in § 38.4 did not apply to any VoIP traffic traveling on FGD
trunks would have accomplished this goal. Instead, Sprint’s
argument seeks to cobble together a handful of other ambigu-
ous provisions—and ignore the language of § 38.4—to sup-
port the proposition that VoIP traffic over FGD trunks is
excluded from the ICA’s coverage. As the district court
observed, "only so much can be gained from Sprint referenc-
ing other provisions in the ICAs, but ignoring the one provi-
sion, Section 38.4, that speaks directly to the issue in
dispute—compensation for termination of VoIP-originated
traffic." Cent. Tel. Co. of Va., 759 F. Supp. at 801. Because
we are required to construe ambiguity against the
drafter—here, Sprint—we conclude that the ICA must be read
to apply to VoIP traffic carried over FGD trunks.
The parties’ own longstanding "practical construction" of
the ICA bolsters our conclusion. See First Nat. Exch. Bank of
Roanoke, 192 S.E. at 771. Sprint paid the CenturyLink plain-
tiffs for VoIP traffic carried over FGD trunks in accordance
with § 38.4 from the execution of the ICAs in 2004 and 2005
until June 2009. Although the fact that the parties were for
some of this time both part of Sprint Corporation may explain
Sprint’s reluctance to challenge this arrangement until the
CenturyLink Plaintiffs split off from Sprint Corporation in
May 2006, it does not explain Sprint’s continued payments
until June 2009. The district court’s unchallenged factual
findings, however, offer an explanation: "In the summer of
2009, Sprint, like many companies at the time, embarked on
company-wide cost-cutting efforts. Notably, during this time
period, Sprint launched a coordinated effort to contest access
charges on VoIP-originated traffic with other carriers across
the telecommunications industry." Cent. Tel. Co. of Va., 759
F. Supp. at 796. Sprint’s change in strategy does not undo the
28 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
parties’ shared interpretation of the ICA over a number of
years. When viewed in conjunction with the ambiguity in the
ICA’s coverage of VoIP traffic over FGD trunks, the parties’
course of dealing reinforces our conclusion that the district
court did not err in entering judgment for CenturyLink on its
breach of contract claim.23
B.
Sprint also challenges the district court’s ruling on its coun-
terclaim, which alleges that CenturyLink improperly billed it
for local traffic under the NC ICA. Sprint does not dispute
that the calls are covered by the ICA, but instead contends
that CenturyLink wrongly identified the calls as intrastate
long distance, using an impermissible method. Specifically, in
Sprint’s view, the plain terms of the NC ICA disallowed Cen-
turyLink’s use of the Billing Telephone Number (the "BTN")
method. We disagree.
As noted above, the "Bill & Keep" compensation
regime—under which neither party pays the other—applies to
local traffic, whereas the ICA requires Sprint to pay the appli-
cable access charges for intrastate long distance traffic. Thus,
while no charge would apply to a call deemed local, Sprint
would have to pay access charges for any traffic deemed
intrastate long distance. Moreover, there are at least two dif-
ferent methods for determining whether a call is deemed
local. The BTN method identifies traffic as local or nonlocal
for billing purposes based on a unique account number that is
assigned to a specific facility. By contrast, the "Calling Party
Number" or "CPN" method identifies the actual originating
location of the call in question. In some instances, traffic that
23
We fail to understand how Sprint’s additional contention that Centu-
ryLink’s interpretation of the ICA "seeks to circumvent a longstanding,
industry-wide dispute" about treatment of VoIP traffic, Appellant’s Br. at
32, aids its argument. That an interpretation would avoid such a dispute
would seem to counsel in favor of, not against, it.
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 29
the BTN method identifies as intrastate long distance—and
therefore subject to access charges—the CPN method would
identify as local.
The crux of the question, then, is whether the ICA estab-
lishes a method for determining when a call is properly con-
sidered local and when it is not. We must therefore determine
whether the ICA required CenturyLink to use the CPN
method instead of the BTN method it actually used.
In its comprehensive opinion, the district court identified
the relevant provisions of the NC ICA at issue. First, § 1.40
defines local traffic under the NC ICA as traffic "that is origi-
nated and terminated within Sprint’s local calling area." J.A.
795. Importantly, the text of the NC ICA "does not prescribe
a specific method of ‘jurisdictionalizing’ traffic as local (sub-
ject to ‘Bill and Keep’) or non-local (subject to the applicable
access charges) for billing purposes." J.A. 164. Instead, § 42.1
provides that "[e]ach Party shall calculate terminating inter-
connection minutes of use based on standard AMA recordings
made within each Party’s network, these recordings being
necessary for each Party to generate bills to the other Party."
J.A. 830. Section 1.6 of the NC ICA defines "AMA" as "Au-
tomated Message Accounting," and notes that "AMA format
is contained in the Automatic Message Accounting document
published by Telcordia as GR-1100-CORE which defines the
industry standard for message recording." J.A. 792. The par-
ties do not dispute that the industry manual known as the Tel-
cordia GR-1100-CORE permits use of the BTN method.
Both Sprint and CenturyLink invoke the express language
of the NC ICA in support of their respective positions. Sprint
claims that § 1.40’s definition of traffic that "is originated and
terminated within [a] local calling area," J.A. 795, required
CenturyLink to use the Calling Party Number or "CPN"
method to jurisdictionalize the originating and terminating
points of a call. According to Sprint, application of the CPN
method to the calls at issue would transform them from long
30 CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT
distance into local calls. And to construe the NC ICA as per-
mitting the BTN method, Sprint contends, would lead to
absurd results—akin to treating a cab ride that began and
ended in Richmond but traveled along Interstate 95 as "origi-
nating" anywhere along that highway, even as far afield as
Portland, Maine. CenturyLink, by contrast, argues that § 42.1
in conjunction with § 1.6 incorporated by reference the indus-
try standard set out in the Telcordia GR-1100-CORE docu-
ment, and therefore explicitly permitted use of the BTN
method. The district court credited the latter view. So do we.
Sprint’s argument that the NC ICA disallowed use of the
BTN method suffers from an insurmountable flaw: the NC
ICA nowhere explicitly so provides. As the district court
observed, Sprint’s reliance on the definition set out in § 1.40
overlooks the more rudimentary question of how a carrier can
determine where a call has originated and terminated. At the
time the parties agreed to the NC ICA, CenturyLink only had
the capability to use the BTN method, and although the CPN
method existed, no provision in the NC ICA required that
CenturyLink adopt this method at any point in the future.
Sprint’s argument that the NC ICA only incorporated the Tel-
cordia document for the purpose of calculating minutes, see
Appellant’s Br. at 47-49, finds no grounding in the text of the
relevant provisions. Accordingly, we agree with the district
court’s conclusion that the NC ICA permitted CenturyLink to
identify the origination and termination points of calls using
the BTN method, and therefore to bill Sprint at the applicable
access charges for those calls identified as nonlocal under that
method.
At best, Sprint’s arguments render ambiguous the propriety
of the BTN method for identifying calls as local under the NC
ICA. But as we explained in the context of CenturyLink’s
breach of contract claim, Sprint must do more than identify an
ambiguity in a contract it drafted. In the face of ambiguity, we
construe the relevant provisions of the NC ICA against Sprint
and in favor of CenturyLink.
CENTRAL TELEPHONE COMPANY OF VIRGINIA v. SPRINT 31
IV.
For the reasons discussed above, we affirm.
AFFIRMED