dPi Teleconnect LLC v. Finley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-2066
DPI TELECONNECT LLC,
Plaintiff – Appellant,
v.
ROBERT V. OWENS, JR.; SAM J. ERVIN, IV; LORINZO L. JOYNER;
JAMES Y. KERR, II; HOWARD N. LEE; WILLIAM T. CULPEPPER,
III; EDWARD S. FINLEY, JR., Chairman, in their official
capacities as Commissioners of the North Carolina Utilities
Commission; BELLSOUTH TELECOMMUNICATIONS, INCORPORATED,
Defendants – Appellees,
and
JO ANNE SANFORD; ROBERT E. KROGER,
Defendants.
No. 09-1617
DPI TELECONNECT LLC,
Plaintiff – Appellant,
v.
ROBERT V. OWENS, JR.; SAM J. ERVIN, IV; LORINZO L. JOYNER;
JAMES Y. KERR, II; HOWARD N. LEE; WILLIAM T. CULPEPPER,
III; EDWARD S. FINLEY, JR., Chairman, in their official
capacities as Commissioners of the North Carolina Utilities
Commission; BELLSOUTH TELECOMMUNICATIONS, INCORPORATED,
Defendants – Appellees,
and
JO ANNE SANFORD; ROBERT E. KROGER,
Defendants.
Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (5:06-cv-00463-D)
Argued: October 28, 2010 Decided: February 3, 2011
Before NIEMEYER and GREGORY, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Niemeyer and Senior Judge Keith joined.
ARGUED: Anton Christopher Malish, MALISH & COWAN, LLP, Austin,
Texas, for Appellant. Matthew Patrick McGuire, ALSTON & BIRD,
LLP, Raleigh, North Carolina; Karen Elizabeth Long, Carrboro,
North Carolina, for Appellees. ON BRIEF: David S. Wisz, BAILEY
& DIXON, LLP, Raleigh, North Carolina, for Appellant. Roy
Cooper, North Carolina Attorney General, Raleigh, North
Carolina, for Appellees Utilities Commissioners. Anitra Goodman
Royster, ALSTON & BIRD, LLP, Raleigh, North Carolina, for
Appellee BellSouth Telecommunications, Incorporated.
Unpublished opinions are not binding precedent in this circuit.
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GREGORY, Circuit Judge:
This case involves a dispute over promotional credits
between dPi Teleconnect LLC (“dPi”) and BellSouth
Telecommunications, Inc. (“BellSouth”). The North Carolina
Utilities Commission (“NCUC”) dismissed dPi’s complaint and
motion for reconsideration, and the district court granted the
NCUC’s and BellSouth’s motions for summary judgment. We affirm
the district court because there is substantial support in the
record that dPi was not entitled to promotional credits.
I.
The Telecommunications Act of 1996 (“the Act”) regulates
Incumbent LECs (“ILECs”) and Competitive LECs (“CLECs”). 47
U.S.C. § 251 et seq. The Act was “designed to enable new Local
Exchange Carriers [] to enter local telephone markets with ease
and to reduce monopoly control of these markets and increase
competition among providers.” Verizon Md. v. Core
Communications, __ F.3d __ (4th Cir. 2010), slip op. at 1
(citations omitted) (unpublished). The Act requires, in
pertinent part, that ILECs “offer for resale at wholesale rates
any telecommunications services that the carrier provides at
retail to subscribers who are not telecommunications carriers.”
47 U.S.C. § 251(c)(4). ILECs’ resale obligations extend to
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promotional offers which last for more than 90 days. 47 C.F.R.
§ 51.613.
The Act employs InterConnection Agreements (“ICAs” or “the
agreement”) as its primary enforcement vehicle. Verizon Md.,
Inc. v. Global Naps, 377 F.3d 355, 364 (4th Cir. 2004). “When
an agreement . . . is submitted to the state commission for
approval, the commission may reject it only if it discriminates
against a carrier not a party, or it is not consistent with ‘the
public interest, convenience, and necessity.’” Id. And “[o]nce
the agreement is approved, the 1996 Act requires the parties to
abide by its terms.” Id.
Here, BellSouth and dPi functioned as ILEC and CLEC,
respectively, and entered into an ICA so dPi could resell retail
telephone services on a prepaid basis. The ICA stated, in
pertinent part, “[w]here available for resale, promotions will
be made available only to End Users who would have qualified for
the promotion had it been provided by BellSouth directly.” From
January 2004 through November 2005, BellSouth offered a
promotion known as the Line Connection Charge Waiver (“LCCW”).
The promotion read as follows:
Planned Promotion
The Line Connection Charge Waiver promotion is
extended to December 26, 2005. Services included in
this promotion are:
• BellSouth® Complete Choice® plan
• BellSouth® PreferredPackSM plan
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• BellSouth® basic service and two (2) customer
calling (or Touchstar® service) local features
Promotion Specifics
Specific features of this promotion are as follows:
Waived line connection charge to reacquisition or
winover residential customers who currently are not
using BellSouth for local service and who purchase
BellSouth® Complete Choice® service, BellSouth®
PreferredPackSM service, or basic service and two (2)
features will be waived.
Restrictions/Eligibility Requirements:
. . .
The customer must switch their local service to
BellSouth and purchase any one of the following:
BellSouth® Complete Choice® plan, BellSouth®
PreferredPackSM plan, or BellSouth® basic service and
two (2) custom calling (or Touchstar® service) local
features.
BellSouth’s North Carolina General Subscriber Service
Tariff (“the Tariff”) further describes “Touchstar® service [a]s
a group of central office call management features offered in
addition to basic telephone services.” The Tariff defines
“features” to include twelve functionalities: (1) call return;
(2) repeat dialing; (3) call tracing; (4) call selector; (5)
preferred call forwarding; (6) call block; (7) basic caller ID;
(8) deluxe caller ID; (9) anonymous call rejection; (10) calling
name/number delivery blocking – per line; (11) calling
name/number delivery blocking – per call; and (12) busy connect.
In another section on rates, the Tariff describes “denial of per
use” call return and call tracing, refers to them as “features”
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in a footnote, and lists their respective Universal Service
Order Codes (USOCs).
dPi proceeded to purchase basic service from BellSouth and
instructed BellSouth to block certain features (“blocks”) that
customers could use on a charge-per-use basis. dPi did so
because it sold pre-paid phone services to customers who were
not creditworthy, and it might have trouble recouping payment
for bills after the fact for charge-per-use features. dPi
specifically asked BellSouth to block call return (known by its
USOC, “BCR”), repeat dialing (“BRD”), and call tracing (“HBG”),
and BellSouth agreed. dPi resold the basic service and ‘blocks’
to customers as a single pre-paid package.
dPi then applied to BellSouth for promotional credits under
the LCCW. BellSouth denied the applications because dPi’s
customers had not purchased basic service and two or more
features other than ‘blocks.’ Next, dPi filed a complaint
before the NCUC, alleging it was entitled to promotional
credits. Before the NCUC, BellSouth’s director of regulatory
organization, Ms. Pam Tipton, testified that only paid features
qualify for LCCW and that ‘blocks’ are not eligible for such
credits. The NCUC decided that they were “not required to
analyze and decide this case based on the language of the
promotion” because “BellSouth and dPi jointly agreed [that]
. . . ‘promotions will be made available only to End Users who
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would have qualified for the promotion had it been provided by
BellSouth directly.’” Instead, the NCUC found Ms. Tipton’s
testimony was “dispositive” and “uncontested by dPi at the
hearing and unrebutted in its post hearing brief.”
The NCUC dismissed dPi’s complaint, reasoning that “[u]nder
the clear terms of the interconnection agreement and the facts
of this case, dPi end users who only order blocking features are
not eligible for the credits because similarly situated
BellSouth End Users are not entitled to such credits.” The NCUC
declined to construe any potentially ambiguous provisions
against the drafter (BellSouth) because dPi voluntarily agreed
to more specific terms in the ICA. While the NCUC acknowledged
problems in BellSouth’s overall system for requesting promotion
credits, it suggested another type of proceeding would be a more
appropriate forum for resolving them. dPi moved for
reconsideration, which the NCUC denied.
dPi next filed a complaint in district court seeking
declaratory and injunctive relief from the NCUC’s order denying
its claims. The court stressed the binding legal effect of the
parties’ ICA and concluded that there was substantial evidence
supporting the NCUC’s interpretation of the ICA, given Ms.
Tipton’s testimony and the clear terms of the ICA. The district
court granted BellSouth and NCUC’s motions for summary judgment,
and dPi appealed to our Court.
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Then, dPi motioned the NCUC to reconsider once more in
light of new evidence about Ms. Tipton’s credibility and data
about BellSouth’s use of waivers in Florida. The NCUC denied
the motion, finding that dPi’s arguments were “mere conjecture”
and that the “record is insufficient to prove by the greater
weight of the evidence that BellSouth granted any, let alone a
significant amount of, LCCW promotion waivers to the customers
in question or to prove that . . . Tipton provided evidence ‘now
known to be false.’” Next, dPi filed a motion pursuant to Fed.
R. Civ. P. 60(b) before the district court, and meanwhile our
Court held dPi’s original appeal in abeyance. The district
court denied that motion, “[i]n light of the NCUC’s findings and
the requirements of Rule 60(b). . . .” dPi again appealed to
our Court, and we consolidated its two appeals.
II.
While we review de novo the NCUC’s interpretation of the
Act, we do not “sit as a super public utilities commission,” and
are “not free to substitute [our] judgment for the agency’s.
. . .” GTE South, Inc., v. Morrison, 199 F.3d 733, 745-46 (4th
Cir. 1999) (citations omitted). Instead, we “must uphold a
decision that has substantial support in the record as a whole
even if [we] might have decided differently as an original
matter.” Id. at 756 (citation omitted).
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There is substantial support for the NCUC’s dismissal of
dPi’s complaint: The ICA states that “promotions will be made
available only to End Users who would have qualified for the
promotion had it been provided by BellSouth directly.” The NCUC
heard unrebutted testimony that BellSouth’s own end users would
not have been entitled to the sorts of promotions for which dPi
applied. Specifically, Ms. Tipton testified that BellSouth did
not count ‘blocks’ as features, since “[i]t really doesn’t make
any sense for BellSouth to develop a promotion to entice
customers to buy additional service when the enticement only
applies to something that’s already free.”
While Ms. Tipton’s testimony went unrebutted before the
NCUC, dPi now seeks to undermine BellSouth’s interpretation by
attacking Ms. Tipton’s testimony as lacking “personal knowledge
of the situation.” While Ms. Tipton stated that her testimony
was based in “part” on what colleagues had told her, she also
said she had reviewed all twenty-four months of promotion credit
claims, and “undertaken [her] own evaluation.” Ms. Tipton also
added that she was “very familiar with” BellSouth’s discount
policy “prior to learning dPi’s filing of any complaints.” She
remarked, “[t]hat’s not something I had to learn.” That is
sufficient for the NCUC to admit Ms. Tipton’s testimony and for
us to consider it now.
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Next, dPi marshals various pieces of data to try to show
BellSouth engaged in a practice of offering promotional
discounts to other customers who purchased basic service and
asked BellSouth to ‘block’ features. The NCUC duly considered
Ms. Tipton’s testimony that the data did not and could not
explain the specific reasons why BellSouth had given waivers to
individual customers in other regions. The NCUC also noted that
“dPi, by its own admission, has done nothing more than review
the data and compile a set of numbers . . . . [or] attempt to
find even one order in which the LCCW waiver was granted to a
customer that it contends was not eligible to receive the
promotion and [BellSouth] contends is not.” We cannot discern
more meaningful inferences from this data, let alone substantial
support for overturning the NCUC.
Finally, dPi argues that it qualified for the LCCW under
the terms of the promotion itself. While the NCUC did not reach
this issue, the face of the promotion and Tariff bolster the
NCUC’s decision. The LCCW refers to customers who purchase “two
(2) custom calling (or TouchStar service) local features,” and
the Tariff explicitly defines TouchStar service to include
twelve features. Nowhere does this definition refer to an
ILEC’s decision to ‘block’ certain charge-per-use features. Nor
are we swayed by dPi’s contentions that ‘blocks’ constitute
features, even though they are free, because they have USOCs.
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The promotion refers to “purchase[d]” features -- not the
costless deactivation of charge-per-use features. Moreover,
there are thousands of USOCs for BellSouth’s functionalities, so
merely having a USOC does not alone make something a ‘feature.’
The Tariff’s passing reference to BCR and BCD as “features” in a
footnote does not change matters, since that same sentence goes
on to say ‘blocks’ “should not be included in the determination
of applicable Multi-Feature Discount Plan [] discounts. . . .”
III.
Last, there is the question of whether the district court
erred in denying dPi’s Rule 60(b) motion. In that motion, dPi
argued that it was entitled to relief from the earlier grant of
summary judgment because new evidence allegedly showed that
BellSouth had awarded LCCW credit to customers who placed orders
identical to dPi’s. The district court denied this motion on
April 16, 2009, concluding that dPi “failed to meet the
threshold requirement of asserting a meritorious claim.” Even
assuming dPi had met that burden, the court found that the new
evidence would not likely have led to a different outcome on the
merits.
This Court reviews a district court’s denial of a Rule
60(b) motion for abuse of discretion. Aikens v. Ingram, 612
F.3d 285, 290 (4th Cir. 2010). Here, however, we need not
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conduct that analysis because dPi has abandoned its Rule 60(b)
claim. dPi mentions the Rule 60(b) issue only once in its
opening brief, in its statement of facts, see Appellant’s Br.
21, and does not raise the issue at all in its reply brief. At
no point does dPi offer any argument as to why the district
court erred in denying its Rule 60(b) motion. Under Fourth
Circuit precedent, dPi’s failure to argue the issue amounts to a
waiver. See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6
(4th Cir. 1999) (“Failure to comply with the specific dictates
of [Fed. R. App. P. 28(a)(9)(A)] with respect to a particular
claim triggers abandonment of that claim on appeal”).
IV.
Accordingly, we affirm the district court’s grant of
summary judgment in favor of the NCUC and BellSouth.
AFFIRMED
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