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Central Telephone v. Sprint Communications, No. 12-1322 (4th Cir.)

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Released: January 16, 2013



BRIEF FOR THE FEDERAL COMMUNICATIONS COMMISSION
AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

12-1322

CENTRAL TELEPHONE COMPANY OF VIRGINIA, INC., ET AL.,
PLAINTIFFS-APPELLEES
V.
SPRINT COMMUNICATIONS CO. OF VIRGINIA, INC.,
DEFENDANTS-APPELLANTS

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA



PETER KARANJIA

DEPUTY GENERAL COUNSEL

JACOB M. LEWIS

ASSOCIATE GENERAL COUNSEL

LAUREL R. BERGOLD

COUNSEL
FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740


TABLE OF CONTENTS

Page



STATEMENT OF INTEREST...................................................................................1
STATEMENT OF ISSUES PRESENTED ................................................................2
STATEMENT OF THE CASE...................................................................................2
A. The
Communications
Act’s
Intercarrier
Compensation Framework. ...................................................................2
B. The
Proceeding Below...........................................................................5
C.
The Pending Proceeding Before The Commission. ..............................6
SUMMARY OF ARGUMENT..................................................................................7
ARGUMENT .............................................................................................................8
I.
THE COURT’S DECISION IN THIS CASE
SHOULD HAVE NO EFFECT ON THE FCC’S
RESOLUTION OF SPRINT’S PETITION FOR
DECLARATORY RULING. ................................................................8
II.
A PARTY MAY INVOKE THE DISTRICT
COURT’S JURISDICTION TO INTERPRET OR
ENFORCE AN INTERCONNECTION
AGREEMENT WITHOUT FIRST PRESENTING
ITS CLAIM TO A STATE COMMISSION. .........................................9
CONCLUSION ........................................................................................................18


i

TABLE OF AUTHORITIES

Page


Cases


AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366 (1999) ...................................12
Boca Airport, Inc. v. FAA, 389 F.3d 185 (D.C. Cir. 1998).............................16
Cassell v. FCC, 154 F.3d 478 (D.C. Cir. 1998) .............................................16
CenturyTel of Chatham, LLC et al. v. Sprint
Communications Co., LP, No. 09-1951 (W.D. La.) ..........................6, 9
Core Communications, Inc. v. Verizon Pennsylvania, Inc.,
493 F.3d 333 (3d Cir. 2007) ............................................... 8, 15, 16, 17
Illinois Bell Tel. Co., Inc. v. Global NAPs Illinois, Inc.,
551 F.3d 587 (7th Cir. 2008) ...............................................................10
In re FCC 11-1161 (10th Cir., filed Dec. 18, 2011).........................................4
Iowa Utils. Bd. v. FCC, 120 F.3d 753 (8th Cir. 1997),
aff ’d in part and rev’d in part, AT&T Corp. v.
Iowa Utils. Bd., 525 U.S. 366 (1999)..................................................12
Nat. Cable & Telecomm. Ass’n v. Brand X Internet Serv.,
545 U.S. 967 (2005) ..............................................................................2
SBC Communications, Inc. v. FCC, 407 F.3d 1223 (D.C.
Cir. 2005).............................................................................................12
Southwestern Bell Tel. Co. v. Public Util. Comm’n, 208
F.3d 475 (5th Cir. 2000) ......................................................................10
Talk America, Inc. v. Michigan Bell Tel. Co., 131 S.Ct.
2254 (2011)..........................................................................................16
Verizon Communications, Inc. v. FCC, 535 U.S. 467
(2002) ....................................................................................................4
Verizon Md., Inc. v. Global NAPS, Inc., 377 F.3d 355 (4th
Cir. 2004)...............................................................................................4

ii

Page

Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S.
635 (2002) .............................................................................................4

Administrative Decisions


Connect America Fund, Report and Order and Further
Notice of Proposed Rulemaking, 26 FCC Rcd
17663 (2011), petitions for review pending sub
nom. In re FCC
11-1161 (10th Cir., filed Dec. 18,
2011) ......................................................................................................4
Core Communications, 18 FCC Rcd 7962 (2003) ........................................12
Core Communications, Inc. and Z-Tel Communications,
Inc., 18 FCC Rcd 7568 (2003), vac’d, SBC
Communications, Inc. v. FCC
, 407 F.3d 1223 (D.C.
Cir. 2005).............................................................................................12
Implementation of the Local Competition Provisions in
the Telecommunications Act of 1996, 11 FCC Rcd
15499 (1996), aff ’d in part and vacated in part,
Iowa Utils. Bd. v. FCC, 120 F.3d 753 (8th Cir.
1997), aff ’d in part and rev’d in part, AT&T Corp.
v. Iowa Utils. Bd., 525 U.S. 366 (1999) ................................... 8, 12, 14
Section 257 Triennial Report to Congress, 19 FCC Rcd
3034 (2004) .........................................................................................13
Starpower Communications LLC, Memorandum Opinion
and Order, 15 FCC Rcd 11277 (2000) ......................... 8, 10, 14, 15, 17

Statutes and Regulations


47 C.F.R. § 51.305(a)(4) ..................................................................................3
47 U.S.C. § 151 et seq. ....................................................................................2
47 U.S.C. § 251(b)(5) ......................................................................................4
47 U.S.C. § 251(c)(1) ......................................................................................3
47 U.S.C. § 251(c)(2)(D).................................................................................3
iii

Page

47 U.S.C. § 251(g)...........................................................................................4
47 U.S.C. § 252(a)(1) ......................................................................................3
47 U.S.C. § 252(b)(1) ......................................................................................3
47 U.S.C. § 252(e)(1) ......................................................................................3
47 U.S.C. § 252(e)(5) ............................................................................... 3, 15
47 U.S.C. § 252(e)(6) ..........................................................................3, 10, 11
47 U.S.C. §§ 206-09 ................................................................................11, 13
Telecommunications Act of 1996, Pub. L. 104-104, Title
VIII, § 601(c)(1), 110 Stat. 143...........................................................13
Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 56 (1996) ................................................................................2


iv




IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

12-1322

CENTRAL TELEPHONE COMPANY OF VIRGINIA, INC., ET AL.,
PLAINTIFFS-APPELLEES
v.
SPRINT COMMUNICATIONS CO. OF VIRGINIA, INC.,
DEFENDANTS-APPELLANTS

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA

BRIEF FOR THE FEDERAL COMMUNICATIONS COMMISSION
AS AMICUS CURIAE IN SUPPORT OF NEITHER PARTY

STATEMENT OF INTEREST

By order dated December 14, 2012, this Court invited the Federal
Communications Commission (FCC) to file an amicus brief addressing (1) the
effect the Court’s decision might have on certain proceedings pending before the
agency, and (2) the agency’s position, if any, on whether disputes involving
interconnection agreements between telecommunication carriers must be presented
to state commissions before they are subject to review in federal district court.


2

The FCC is vested by Congress with the responsibility to interpret and to
administer the Communications Act of 1934, as amended, 47 U.S.C. § 151 et seq.
(“Communications Act” or “Act”), which includes the provisions of the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) (“1996
Act”), at issue in this case. See Nat. Cable & Telecomm. Ass’n v. Brand X Internet
Serv., 545 U.S. 967, 980 (2005). The FCC has an interest in ensuring that the Act
and the agency’s precedents are interpreted correctly.

STATEMENT OF ISSUES PRESENTED

1. Whether a decision in this case might have an effect on parallel
proceedings currently pending before the FCC.
2. Whether a dispute involving an existing interconnection agreement
between telecommunications carriers must be presented to a state commission
before it is subject to review in federal district court.

STATEMENT OF THE CASE

A. The

Communications

Act’s

Intercarrier Compensation

Framework.


Telephone calls often originate over the facilities of one telecommunications
carrier and terminate over the facilities of another carrier. A complex regulatory
regime — known as “intercarrier compensation” — governs the compensation of
such carriers for the origination, transport, and termination of such traffic.


3

The Communications Act requires incumbent local exchange carriers
(“LECs”) — that is, local telephone companies already in existence when the 1996
Act was enacted — to “negotiate and enter into” “binding agreement[s]” with
certain requesting carriers for “interconnection.” 47 U.S.C. § 252(a)(1). These
agreements typically include certain intercarrier compensation obligations. Upon
receiving a § 252(a)(1) request for interconnection, an incumbent LEC generally
must negotiate in good faith the terms and conditions of an interconnection
agreement. 47 U.S.C. §§ 251(c)(1). If an agreement is not reached, the relevant
state commission has responsibility to arbitrate and resolve any disputed terms. 47
U.S.C. §§ 252(b)(1). The state commission also has the responsibility to approve
or reject an interconnection agreement adopted by negotiation or arbitration. 47
U.S.C. § 252(e)(1).1 After the state commission approves an interconnection
agreement, an incumbent LEC must provide interconnection in accordance with
the terms of the agreement. 47 U.S.C. § 251(c)(2)(D). See 47 C.F.R.
§ 51.305(a)(4).
A party aggrieved by a state commission determination approving or
disapproving an interconnection agreement has a right to appeal the state
commission’s decision in federal district court. 47 U.S.C. § 252(e)(6). See

1 If the state commission fails to carry out its duties under section 252, the FCC
preempts its jurisdiction and assumes the state commission’s responsibilities. 47
U.S.C. § 252(e)(5).


4

generally Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 638-39,
641 (2002); Verizon Md., Inc. v. Global NAPS, Inc., 377 F.3d 355, 359 (4th Cir.
2004).
Long-distance telecommunications carriers traditionally have compensated
LECs for their use of the local telephone network (for example, when a LEC
delivers a long-distance call to the LEC’s customer) through uniform, tariffed
“access charges” rather than through charges established by individually negotiated
interconnection agreements.2 The access charges associated with interstate calls
traditionally are specified in tariffs filed with the FCC; access charges associated
with intrastate calls traditionally are specified in tariffs filed with the state
regulatory commissions. See generally Verizon Communications, Inc. v. FCC, 535
U.S. 467, 478 (2002).

2 Section 251(g) of the Communications Act preserves the tariffed access charge
regime until it is “explicitly superseded” by the FCC. See 47 U.S.C. § 251(g). In
2011, the FCC superseded the access charge regime and, subject to a transition
mechanism, established a system for regulating termination of long-distance traffic
in accordance with section 251(b)(5) of the Communications Act. That provision
requires LECs to “establish reciprocal compensation arrangements for the transport
and termination of telecommunications.” 47 U.S.C. § 251(b)(5). See Connect
America Fund
, Report and Order and Further Notice of Proposed Rulemaking, 26
FCC Rcd 17663, 17916 (¶ 764) (2011) (“USF/ICC Transformation Order”)
(further administrative history omitted), petitions for review pending sub nom. In
re FCC
11-1161 (10th Cir., filed Dec. 18, 2011).


5

B. The

Proceeding

Below.

Between 2004 and 2006 CenturyLink (and its predecessors) and Sprint
entered into 18 interconnection agreements that required Sprint to pay
CenturyLink, an incumbent LEC, for terminating Sprint’s traffic on CenturyLink’s
local telephone facilities. J.A. 22 (Docket Entry (“D.E.”) 169, at 3). Each of these
agreements was approved by the appropriate state commission. J.A. 23 (D.E. 169,
at 4).
For some time after the agreements were executed, Sprint paid access
charges for Voice over Internet Protocol (“VoIP”)-to-Public Telephone Switched
Network (“PTSN”) traffic in response to monthly bills sent by CenturyLink.3 In
June 2009, however, Sprint stopped paying those charges, claiming that they were
not authorized under the agreements. J.A. 60-61 (D.E. 180, at 2-3).
CenturyLink subsequently sued Sprint in federal district court. Sprint
moved to dismiss, contending, inter alia, that CenturyLink had failed to exhaust its
administrative remedies: according to Sprint, before seeking judicial review,
CenturyLink was first required to bring its dispute to the state commissions that
had originally approved the agreements. J.A. 36 (D.E. 169, at 17). The district
court denied Sprint’s motion, holding that CenturyLink was not required to

3 This involves calls made to the Public Switched Network using Voice over
Internet Protocol.


6

initially seek relief from the state commissions before filing suit in federal court.
J.A. 25-34, 36-50 (D.E. 169, at 6-15, 17-31).
On the merits, the district court later ruled that Sprint had breached its
contractual obligations under the interconnection agreements by not paying access
charges for VoIP-to-PSTN traffic. J.A. 61 (D.E. 180, at 3).

C. The

Pending

Proceeding Before The Commission.

Since 2009, in a separate case pending in federal district court in Louisiana,
Sprint and CenturyLink have been litigating issues concerning intercarrier
compensation for VoIP-to-PSTN traffic. CenturyTel of Chatham, LLC et al. v.
Sprint Communications Co., LP, No. 09-1951 (W.D. La.). Unlike the case at hand,
the Louisiana litigation is an action for damages “resulting from Sprint’s refusal to
pay . . . fees required by federal and state telecommunications tariffs.” Complaint,
¶ 1 (emphasis added). As noted above, in contrast with individually negotiated
contracts, tariffs are schedules setting forth uniform charges, and they are regulated
by federal and state law.
The Louisiana district court referred the dispute to the FCC under the
primary jurisdiction doctrine. CenturyTel of Chatham v. Sprint, No. 09-1951
(order filed Jan. 25, 2011). Pursuant to that referral, Sprint has petitioned the FCC
to rule that access charge tariffs did not impose compensation obligations on VoIP-
to-PSTN traffic, at least in the period before the effective date of the rules adopted


7

in the USF/ICC Transformation Order. Petition for Declaratory Ruling, WC
Docket No. 12-105 (filed April 5, 2012). The FCC has not acted on that request
for declaratory ruling.

SUMMARY OF ARGUMENT

1. The Court’s decision in this case should not affect the FCC’s resolution
of the issues raised in Sprint’s pending petition for declaratory ruling. The
underlying merits issue here turns on questions of contract law arising under
specific interconnection agreements between Sprint and CenturyLink. By contrast,
the pending declaratory ruling proceeding before the FCC involves the parties’
obligations under access charge tariffs, raising issues that should not be affected by
the Court’s decision in this case.
2. The FCC disagrees with Sprint’s contention that state commissions have
exclusive jurisdiction to interpret and enforce interconnection agreements in the
first instance. Although the Communications Act provides that state commission
determinations may be appealed to federal district courts, nothing in the
Communications Act specifies that parties must bring such a dispute to the state
commission in the first instance. On the contrary, the FCC has long specified that
its jurisdiction to adjudicate such disputes under section 208 of the Act is
concurrent with that of the state commissions, and on at least two occasions, has
accepted complaints involving disputes over existing interconnection agreements.


8

Because federal district courts have parallel jurisdiction to accept complaints under
section 207 of the Act, this agency’s precedent strongly suggests that there is
likewise no exhaustion requirement where relief is sought in federal district court
in the first instance. Confirming this view, the FCC has observed that a party is
not limited to seeking either (a) FCC review of an interconnection agreement in the
first instance or (b) appellate review of a state commission decision in federal
district court; rather, it may directly “file a complaint against a common carrier . . .
in federal district court for the recovery of damages.” Implementation of the Local
Competition Provisions in the Telecommunications Act of 1996, 11 FCC Rcd
15499, 15564 ¶ 128 (1996) (subsequent history omitted). The Third Circuit’s
decision to the contrary in Core Communications, Inc. v. Verizon Pennsylvania,
Inc., 493 F.3d 333 (3d Cir. 2007), is based on a misunderstanding of the FCC’s
decision in Starpower Communications LLC, Memorandum Opinion and Order, 15
FCC Rcd 11277 (2000), and should not be followed by this Court.

ARGUMENT


I.

THE COURT’S DECISION IN THIS CASE SHOULD
HAVE NO EFFECT ON THE FCC’S RESOLUTION OF
SPRINT’S PETITION FOR DECLARATORY RULING.



The Court’s adjudication of the contractual dispute in this case should have
no effect on the FCC’s resolution of Sprint’s pending petition for declaratory
ruling. The case before the Court is a contract dispute. As both Sprint and


9

CenturyLink recognize, the substantive issue raised in this case revolves around
the proper construction of specific interconnection agreements. See Sprint Brief at
1; CenturyLink Brief at 3.
CenturyLink’s claims against Sprint in the Louisiana litigation are not based
on interconnection agreements. Instead, as stated in Sprint’s Petition for
Declaratory Ruling, “CenturyLink’s complaint in the Louisiana action contained
four counts, each of which was predicated on Sprint’s alleged failure to pay
tariffed switched access charges.” Petition for Declaratory Ruling, WC Docket
No. 12-105 (filed April 5, 2012), at 1. See Complaint in CenturyTel of Chatham,
LLC et al. Sprint Communications Co., No. 09-1951 (W.D. La.), at ¶ 1. The
Court’s interpretation of the interconnection agreements in this case thus should
have no bearing on the tariff-related issues before the FCC in the declaratory ruling
proceeding. For that reason, the Court need not (and should not) opine on any of
the tariff-related issues before the FCC.

II. A PARTY MAY INVOKE THE DISTRICT COURT’S

JURISDICTION TO INTERPRET OR ENFORCE AN
INTERCONNECTION AGREEMENT WITHOUT FIRST
PRESENTING ITS CLAIM TO A STATE COMMISSION.


Sprint contends that the court below should not have entertained
CenturyLink’s claim for the enforcement of the interconnection agreements
because CenturyLink did not first seek redress from each of the 18 state


10

commissions that had approved them. Sprint Br. 16-30. As we explain, a party
may — but need not — apply to a state commission to enforce an existing
interconnection agreement before invoking the jurisdiction of a federal district
court.
Section 252(e)(6) of the Communications Act 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.” 47 U.S.C. § 252(e)(6).
The statute thus makes clear that when an enforcement determination is made by a
state commission, an aggrieved party may then appeal to federal district court. But
neither that section, nor any other, specifies that an action to enforce an
interconnection agreement must be brought to the state commission in the first
place.4

4 Although section 252 speaks only to the authority of a state commission to
arbitrate, approve, and disapprove interconnection agreements, such power
“necessarily carries with it the authority to interpret and enforce the provisions of
agreements that state commissions have approved.” Southwestern Bell Tel. Co. v.
Public Util. Comm’n
, 208 F.3d 475, 479-80 (5th Cir. 2000). Accord Illinois Bell
Tel. Co., Inc. v. Global NAPs Illinois, Inc.
, 551 F.3d 587, 594 (7th Cir. 2008);
Starpower, 15 FCC Rcd at 11279-80 (¶ 6).



11

The absence of such a requirement is significant, for when Congress
intended a remedy in section 252 to be exclusive, it used explicit language to that
effect. Thus, the first sentence of 47 U.S.C. § 252(e)(6) specifies the “exclusive
remedies for a State commission’s failure to” carry out its responsibilities under
section 252 (emphasis added). By contrast, nothing in the language of section 252
indicates that the state commissions’ authority to make a “determination”
interpreting or enforcing an interconnection agreement in the first instance is
exclusive.
Moreover, any requirement that parties exhaust their remedies by seeking
relief in the first instance from a state commission is inconsistent with the broad
adjudicatory authority that sections 206-209 of the Act confer on the FCC and
federal district courts. See 47 U.S.C. §§ 206-09. Those provisions allow
aggrieved parties to file a petition with the FCC, 47 U.S.C. § 208, or bring suit in
federal district court, 47 U.S.C. § 207, for damages against a telecommunications
common carrier that commits “any act, matter or thing” that the Communications
Act “prohibit[s] or declare[s] to be unlawful” or “omit[s] to do any act, matter, or
thing” the Act “require[s] to be done,” 47 U.S.C. § 206.
The FCC has long held a party that claims that a common carrier has
violated the Communications Act can “file a section 208 complaint” with the FCC
“alleging that [the] carrier is violating the terms of a negotiated or arbitrated


12

agreement.” Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, 11 FCC Rcd 15499, 15564 ¶ 127 (1996) (“Local
Competition Order”), aff’d in part and vacated in part, Iowa Utils. Bd. v. FCC,
120 F.3d 753 (8th Cir. 1997), aff’d in part and rev’d in part, AT&T Corp. v. Iowa
Utils. Bd., 525 U.S. 366 (1999).5
Thus, in Core Communications, 18 FCC Rcd 7962 (2003) (Core-Verizon),
the Commission granted in substantial part a section 208 complaint that Core had
filed against Verizon. In doing so, the Commission expressly concluded that it had
“jurisdiction under section 208,” 18 FCC Rcd at 7971 ¶ 22, to adjudicate Core’s
claim “that Verizon violated the parties’ interconnection agreement, and thus the
reasonableness standard of section 251(c)(2)(D) of the Act, by failing to
interconnect with Core on just and reasonable terms,” id. at 7962 ¶ 1.
Likewise, in Core Communications, Inc. and Z-Tel Communications, Inc.,
18 FCC Rcd 7568 (2003) (Core/Z-Tel), vac’d on other grounds, SBC
Communications, Inc. v. FCC, 407 F.3d 1223 (D.C. Cir. 2005), the FCC

5 The Eighth Circuit overturned the FCC’s determination that section 208 gives the
agency jurisdiction to interpret and enforce interconnection agreements. 120 F.3d
at 803. The Supreme Court, however, reversed the Eighth Circuit’s ruling. 525
U.S. at 386 (finding the issue unripe).




13

entertained a section 208 complaint alleging that the defendant had violated the
Communications Act by breaching the terms of existing interconnection
agreements. See 18 FCC Rcd at 7571 ¶ 9. In doing so, the agency emphasized that
its “jurisdiction” was, “of course, concurrent with state jurisdiction to interpret and
enforce interconnection agreements.” Id. at 7574 ¶ 13 (emphasis added). See also
Section 257 Triennial Report to Congress, 19 FCC Rcd 3034, 3055 (2004) (FCC’s
section 208 jurisdiction “to resolve disputes arising from interconnection
agreements” is “shared with states.”).6
The FCC’s jurisdiction to entertain complaints under section 208 of the Act
rests on an equal footing with the jurisdiction of the federal district courts under
section 207 of the Act: the Act provides that an aggrieved party “may either” file a
complaint with the FCC or sue in federal district court, “but such person shall not
have the right to pursue both such remedies.” 47 U.S.C. § 207. Accordingly, the
FCC’s precedents establishing that the agency has jurisdiction under section 208 to

6 This understanding is buttressed by a savings clause in section 601 of the 1996
Act. That provision makes clear that the 1996 Act “shall not be construed to
modify, impair, or supersede” existing federal law “unless expressly so provided.”
Pub. L. 104-104, Title VIII, § 601(c)(1), 110 Stat. 143 (reproduced in the notes
following 47 U.S.C. § 152). Section 601 thus ensures that the 1996 Act — which
includes section 252 of the Communications Act, as amended — does not “modify,
impair, or supersede” anything in sections 206-209 of the Communications Act.
Accordingly, section 252(e)(6) should not be read to displace the authority of the
FCC or federal district courts under sections 206-09 to adjudicate in the first
instance disputes concerning the interpretation or enforcement of interconnection
agreements.


14

entertain complaints regarding interconnection agreements in the first instance
strongly suggest that the federal district courts likewise may be called upon to
adjudicate such complaints under section 207 of the Act without first seeking relief
from a state commission. Indeed, the Commission said as much in its Local
Competition Order. See 11 FCC Rcd at 15564, ¶ 128 (“a person aggrieved by a
state determination under sections 251 and 252 of the Act may elect to either bring
an action for federal district court review or a section 208 complaint to the
Commission against a common carrier. Such a person could, as a further
alternative, pursuant to section 207, file a complaint against a common carrier
with the Commission or in federal district court for the recovery of damages.”)
(emphasis added; footnotes omitted).7
The FCC’s decision in Starpower, 15 FCC Rcd 11277, is not to the contrary.
In that case, a state commission expressly declined to consider a request to enforce
an interconnection agreement and encouraged the parties to seek relief from the
FCC. Id. at 11278 (¶ 4). In light of that refusal, Starpower asked the FCC to
exercise its authority under section 252(e)(5) of the Act, which authorizes the FCC

7 In focusing on the second question posed by the Court (i.e., whether a party
invoking a district court’s jurisdiction to interpret or enforce an interconnection
agreement is required first to seek redress from the state commission that approved
the agreement), we take no position on whether CenturyLink adequately invoked
the district court’s subject-matter jurisdiction under section 207 by alleging a
violation of the Communications Act.


15

to “issue an order preempting the State commission’s jurisdiction of [a]
proceeding” whenever “a State commission fails to carry out its responsibility
under” section 252. 47 U.S.C. § 252(e)(5). Finding that a state commission’s
failure to exercise its responsibility under section 252 “can in some circumstances
include the failure to interpret and enforce existing interconnection agreements,”
15 FCC Rcd at 11280 ¶ 6, the FCC granted the request, id. at 11280 ¶ 7.
Starpower holds that state commissions, when asked to do so, have a
responsibility to interpret and enforce interconnection agreements. But it does not
hold that state commissions are the only entities with that responsibility. In
Starpower, the FCC was confronted with a case in which a party had sought
redress from a state commission and been refused. The agency had no occasion to
— and did not — address the circumstances under which a party might be required
to apply in the first instance to a state commission to resolve an interconnection
agreement dispute.
In Core Commc’ns, Inc. v. Verizon Pennsylvania, 493 F.3d 333 (3d Cir.
2007), the Third Circuit construed Starpower as holding that “interpretation and
enforcement actions that arise after a state commission has approved an
interconnection agreement must be litigated in the first instance before the relevant
state commission.” Id. at 344. That understanding of Starpower is incorrect, and
should not be followed by this Court. See Boca Airport, Inc. v. FAA, 389 F.3d 185,


16

190 (brackets in original) (quoting Cassell v. FCC, 154 F.3d 478, 483 (D.C. Cir.
1998) (holding that “‘[a]n agency’s interpretation of its own precedent is entitled
to deference.’”) See also Talk America, Inc. v. Michigan Bell Tel. Co., 131 S.Ct.
2254, 2261 (2011) (rule of deference applies to FCC’s interpretation of its own
regulations, even if set forth in an amicus brief).
The Third Circuit recognized that Starpower could be read simply to
“stand[] for the proposition that state commissions have, at a minimum, the non-
exclusive authority to hear post-formation disputes involving approved
interconnections agreements.” Core Communications, 493 F.3d at 342. Instead,
however, the court of appeals gave the FCC’s decision a “broader reading,”
emphasizing the FCC’s observation that state commissions have “responsibility”
under section 252 of the Act to interpret and enforce interconnection agreements.
Ibid. In the Third Circuit’s view, the term “responsibility” “suggest[ed] that there
is not a shared role for the federal courts in the first instance.” Ibid.
This reads too much into the FCC’s use of that term. In referring to the
“responsibility” of state commissions, the FCC was simply “echoing the language”
of the statute, as the Third Circuit recognized. Ibid. Moreover, the fact that, under
Starpower, a state commission may have a responsibility to interpret and enforce
an interconnection agreement says nothing about whether any party has a


17

corresponding obligation to bring an interconnection agreement dispute to a state
commission in the first instance.
The Third Circuit also reasoned that it could find no “indication in other
FCC decisions that the state commissions’ jurisdiction over post-formation
disputes is shared with the federal courts.” Ibid. But as we have shown, see
pp. 11-14, supra, the FCC’s acceptance of jurisdiction in prior cases over
interconnection agreement disputes under section 208 strongly suggests that the
federal district courts likewise have such jurisdiction (under section 207). And
language in the FCC’s Local Competition Order directly supports that conclusion.
See p. 14, supra.
To be sure, “due to its role in the approval process, a state commission is
well-suited to address disputes arising from interconnection agreements.”
Starpower, 15 FCC Rcd 11280 ¶ 6. Thus, it is perfectly appropriate for “bodies
that consider[] formation problems also [to] resolve interpretation difficulties.”
Core Communications, 493 F.3d at 343. But nothing in the Communications Act
directs that state commissions enjoy exclusive authority over disputes concerning
existing interconnection agreements. Conversely, the FCC’s orders demonstrate
that parties may seek relief under sections 206-208 of the Act from either the FCC
or the district courts in the first instance.


18

CONCLUSION


The Court’s adjudication of this case should not affect the FCC’s disposition
of Sprint’s petition for declaratory ruling, currently pending before the agency.
As the FCC’s orders show, a party invoking the jurisdiction of a district
court to interpret or enforce an existing interconnection agreement is not required,
as a precondition to seeking judicial relief, to first seek redress from the state
commission that approved the agreement.

Respectfully submitted,



PETER KARANJIA

DEPUTY GENERAL COUNSEL


/S/ JACOB M. LEWIS

JACOB M. LEWIS

ASSOCIATE GENERAL COUNSEL



LAUREL R. BERGOLD

COUNSEL


FEDERAL COMMUNICATIONS

COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740 (telephone)
(202) 418-2819 (fax)


January 14, 2013



IN THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT

CENTRAL TELEPHONE COMPANY OF Virginia,
)
Inc., Et Al.,
)
)
PLAINTIFFS-APPELLEES
)
)
V.
)
)
12-1322
SPRINT COMMUNICATIONS CO. OF
)
V
)
IRGINIA, INC.,
)
D

EFENDANTS-APPELLANTS


CERTIFICATE OF COMPLIANCE
Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby certify
that the accompanying “Brief for the Federal Communications Commission As
Amicus Curiae In Support of Neither Party” in the captioned case contains 3878
words.





/s/ Jacob M. Lewis
JACOB M. LEWIS
ASSOCIATE GENERAL COUNSEL

FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740 (TELEPHONE)
(202) 418-2819 (FAX)




12-1322


IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT


CENTRAL TELEPHONE COMPANY OF VIRGINIA,
ET AL., PLANTIFFS-APPELLEES

V.

SPRINT COMMUNICATIONS COMPANY OF VIRGINIA,
ET AL., DEFENDANTS-APPELLANTS

CERTIFICATE OF SERVICE


I, Jacob M. Lewis, hereby certify that on January 14, 2013, I electronically
filed the foregoing “Brief of the Federal Communications Commission As
Amicus Curiae In Support of Neither Party”with the Clerk of the Court for
the United States Court of Appeals for the Fourth Circuit by using the
CM/ECF system. Participants in the case who are registered CM/ECF users
will be served by the CM/ECF system.


Benjamin Rodes Dryden
Bradley D. Jackson
Jennifer M. Keas
Foley & Lardner, LLP
Michael J. Lockerby
150 East Gilman Street
Foley & Lardner, LLP
Madison, WI 53703
3000 K Street, N.W.
Counsel for: Central Telephone
Suite 600
Company of Virginia, et al.
Washington, D.C. 20007
Counsel for: Central Telephone
Company of Virginia, et al.


Rachel W. Petty
Scott H. Angstreich
Timothy J. Simeone
Joshua D. Branson
Christopher J. Wright
Kellogg, Huber, Hansen, Todd,
Wiltshire & Grannis, LLP
Evans & Figel, PLLC
1200 18th Street, N.W.
1615 M Street, N.W.
Suite 1200
Suite 400
Washington, D.C. 20036
Washington, D.C. 20036
Counsel for: Sprint Communications Counsel for: Amicus Curiae
Company of Virginia, Inc., et al.


Michael Eugene Glover
Curtis L. Groves
Edward Shakin
Verizon Communications, Inc.
Verizon
1320 North Courthouse Road
1515 North Courthouse Road
Arlington, VA 22201
Suite 500
Counsel for: Amicus Curiae
Arlington, VA 22201
Counsel for: Amicus Curiae


/s/ Jacob M. Lewis

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