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LSSi Data Corp. v. Comcast Phone, LLC, No. 11-12221 (11th Cir.)

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Released: June 19, 2012

Case No. 11-12221-EE


___________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

___________________________________________

LSSI DATA CORP.,







Plaintiff-Appellee,







v.

COMCAST PHONE, LLC,







Defendant-Appellant.

___________________________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
CASE NO. 1:11-cv-01246-CAP
____________________________________________

AMICUS BRIEF FOR THE

FEDERAL COMMUNICATIONS COMMISSION

IN SUPPORT OF NEITHER PARTY

____________________________________________

SEAN A. LEV
ACTING GENERAL COUNSEL

PETER KARANJIA
DEPUTY GENERAL COUNSEL

RICHARD K. WELCH
DEPUTY ASSOCIATE GENERAL COUNSEL

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

June 18, 2012

CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT



Pursuant to Eleventh Circuit Rule 26.1-1, the Federal Communications
Commission states that it is an independent agency of the U.S. government. The
trial judges, attorneys, persons, associations of persons, firms, partnerships, or
corporations that have an interest in the outcome of this appeal are listed in the
Brief of Appellant Comcast Phone, LLC, as supplemented by the Brief of Appellee
LSSi Data Corp.

TABLE OF CONTENTS



STATEMENT OF INTEREST..................................................................................1

STATEMENT OF THE ISSUE.................................................................................1

STATUTORY AND REGULATORY BACKGROUND.........................................2

SUMMARY OF ARGUMENT .................................................................................7

ARGUMENT .............................................................................................................7

CONCLUSION ........................................................................................................12


ii

TABLE OF CITATIONS


Cases Page


AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366,
119 S. Ct. 721 (1999) .........................................................................................2, 8

Boca Airport, Inc. v. FAA, 389 F.3d 185 (D.C. Cir. 2004)........................................8

Chase Bank, N.A., v. McCoy, 131 S. Ct. 871 (2011) .................................................9

Chevron U.S.A, Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984) ............................................................8

National Cable & Telecomm. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 125 S. Ct. 2688 (2005) ........................................................8

Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254
(2011)..................................................................................................................8, 9

Verizon Commc’ns Inc. v. FCC, 535 U.S. 467,
122 S. Ct. 1646 (2002) ...........................................................................................2

Verizon Md., Inc. v. Public Serv. Comm’n, 535 U.S.
635, 122 S. Ct. 1753 (2002) ...................................................................................2

Administrative Decisions


*Implementation of the Local Competition Provisions
of the Telecommunications Act of 1996, Second
Report and Order and Memorandum Opinion and
Order, 11 FCC Rcd 19392 (1996) ......................................................................5, 9

*Implementation of the Telecommunications Act of 1996,
Third Report and Order in CC Docket No. 96-115,
Second Order on Reconsideration of the Second
Report and Order in CC Docket No. 96-98, and
Notice of Proposed Rulemaking in CC Docket
No. 99-273, 14 FCC Rcd 15550 (1999) .......................................... 2, 3, 5, 6, 9, 10


iii

McLeodUSA Publ’g Co. v. Wood Cnty Tel. Co.,
17 FCC Rcd 6151 (2002) ................................................................................ 4, 11

Provision of Directory Listing Information under
the Telecommunications Act of 1934, As Amended,
First Report and Order, 16 FCC Rcd 2736 (2001) ........................................ 5, 6, 7

Statutes and Regulations


47 U.S.C. § 151 ..........................................................................................................8

47 U.S.C. § 153(54) ...................................................................................................4

47 U.S.C. § 153(55) ...................................................................................................4

47 U.S.C. § 202(a) .....................................................................................................7

47 U.S.C. § 208 ..........................................................................................................4

47 U.S.C. § 217 ........................................................................................................12

47 U.S.C. § 222(e) .................................................................................................2, 3

47 U.S.C. § 222(h)(3).................................................................................................3

47 U.S.C. § 251(b)(3).............................................................................................2, 5

47 C.F.R. § 51.217(e)(1) ............................................................................................6


* Cases and other authorities primarily relied upon are marked with an asterisk.

iv

STATEMENT OF INTEREST


The Federal Communications Commission (“FCC”) has primary
responsibility for implementing and enforcing the Communications Act of 1934, as
amended, 47 U.S.C. §§ 151 et seq. (“the Communications Act” or “the Act” ). The
FCC has an interest in ensuring that the Act, the agency’s implementing rules, and
its precedents are correctly interpreted. At the Court’s invitation, the FCC
respectfully files this brief as amicus curiae in support of neither party.

STATEMENT OF THE ISSUE



By order dated April 12, 2012, the Court invited the FCC to set forth its
position on the following question:

Does a local exchange carrier (LEC) violate the non-
discrimination requirements of Sections 202, 222(e), or 251(b)(3) of the
Communications Act of 1934, as amended by the Telecommunications Act
of 1996 (“the Act”), when the LEC selects a single contractor to serve as its
exclusive agent in selling its directory assistance listing data (DALD) to all
other LECs and directory publishers, when that contractor also acts as an
agent or contractor to other LECs in acquiring DALD and competes with at
least one qualifying directory assistance provider in that regard? See In re
Provision of Directory Listing Information under the Communications Act
of 1934, as amended, 16 F.C.C. Rcd. 2736 (F.C.C. Jan. 23, 2001) (First
Report and Order), available at 2001 WL 55620.

Answer: As explained below, the FCC believes that the answer to the Court’s
question is no.



1

STATUTORY AND REGULATORY BACKGROUND

1. For most of the last century, American consumers could purchase local
telephone service from only one source: their incumbent local exchange carrier
(“LEC”). Until the 1990s, regulators generally treated local telephone service as a
monopoly. States typically granted an exclusive franchise in each local service
area to the LEC that owned and operated the local telephone network. See AT&T
Corp. v. Iowa Utils. Bd., 525 U.S. 366, 371, 119 S. Ct. 721, 726 (1999).
The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56 (“the
1996 Act”), fundamentally altered this regulatory framework “to achieve the
entirely new objective of uprooting . . . monopolies.” Verizon Commc’ns Inc. v.
FCC, 535 U.S. 467, 488, 122 S. Ct. 1646, 1660 (2002). The 1996 Act amended
the Communications Act to create “a new telecommunications regime designed to
foster competition in local telephone markets.” Verizon Md., Inc. v. Public Serv.
Comm’n, 535 U.S. 635, 638, 122 S. Ct. 1753, 1756 (2002). Two components of
the local telephone competition regime are section 222(e) and section 251(b)(3) of
the amended statute, 47 U.S.C. §§ 222(e), 251(b)(3). Implementation of the
Telecommunications Act of 1996, Third Report and Order in CC Docket No. 96-
115, Second Order on Reconsideration of the Second Report and Order in CC
Docket No. 96-98, and Notice of Proposed Rulemaking in CC Docket No. 99-273,
14 FCC Rcd 15550, 15553 (¶ 1) (1999) (“SLI/DA Order and NPRM”).

2

2. Section 222(e). Section 222(e) of the Communications Act mandates that
“a telecommunications carrier that provides telephone exchange service shall
provide subscriber list information gathered in its capacity as a provider of such
service on a timely and unbundled basis, under nondiscriminatory and reasonable
rates, terms, and conditions, to any person upon request for the purpose of
publishing directories in any format.” 47 U.S.C. § 222(e). Subscriber list
information (“SLI”) is defined as “any information: (A) identifying the listed
names of subscribers of a carrier and such subscribers’ telephone numbers,
addresses, or primary advertising classifications . . . , or any combination of such
listed names, numbers, addresses or classifications; and (B) that the carrier or an
affiliate has published, caused to be published, or accepted for publication in any
directory format.” 47 U.S.C. § 222(h)(3).

While section 222(e) provides that SLI shall be provided under
“nondiscriminatory and reasonable rates, terms, and conditions,” 47 U.S.C.
§ 222(e), the FCC has explained that section 222(e)’s nondiscrimination
requirement “does not prohibit all variations in the rates, terms, and conditions
under which a carrier provides subscriber list information to directory publishers.”
SLI/DA Order and NPRM, 14 FCC Rcd at 15582 (¶ 59) (emphasis added). But if a
carrier is charged with violating section 222(e) in a complaint proceeding before

3

the FCC,1 the carrier has the burden of showing that “specific factors, such as
differences in the costs of providing subscriber list information to particular
directory publishers, warrant differences in the rates, terms, and conditions under
which the carrier provides that information to those publishers.” Id. at 15582-83
(¶ 59). See also McLeodUSA Publ’g Co. v. Wood Cnty Tel. Co., 17 FCC Rcd 6151
(2002) (finding that a LEC failed to meet its burden of showing that the rate
charged a directory publisher for access to SLI was reasonable).
3. Section 251(b)(3). Section 251(b)(3) of the Communications Act
requires LECs to allow “competing providers of telephone exchange service and
telephone toll service2 . . . nondiscriminatory access to . . . directory assistance, and

1 Under Section 208 of the Act, “[a]ny person, . . . complaining of anything done or
omitted to be done by any common carrier subject to th[e Act], in contravention of
any provision thereof, may apply to [the FCC] by petition” and the common carrier
“shall be called upon to satisfy the complaint.” 47 U.S.C. § 208.

2 Telephone exchange service is defined as “(A) service within a telephone
exchange, or within a connected system of telephone exchanges within the same
exchange area operated to furnish to subscribers intercommunicating service of the
character ordinarily furnished by a single exchange, and which is covered by the
exchange service charge, or (B) comparable service provided through a system of
switches, transmission equipment, or other facilities (or combination thereof) by
which a subscriber can originate and terminate a telecommunications service.” 47
U.S.C. § 153(54). Telephone toll service is defined as “telephone service
between stations in different exchange areas for which there is made a separate
charge not included in contracts with subscribers for exchange service.” 47 U.S.C.
§ 153(55).

4

directory listing.” 47 U.S.C. § 251(b)(3).3 The FCC has determined that
“‘nondiscriminatory access,’ as used in section 251(b)(3), encompasses both: (1)
nondiscrimination between and among carriers in rates, terms and conditions of
access; and (2) the ability of competing providers to obtain access that is at least
equal in quality to that of the providing LEC.” Local Competition Second Report
and Order, 11 FCC Rcd at 19402 (¶ 12); id. at 19444 (¶ 101).

If a competing provider files a complaint with the FCC alleging that a
providing LEC has violated section 251(b)(3) by failing to offer nondiscriminatory
access to DA, “the providing LEC . . . bear[s] the burden of demonstrating that it is
permitting nondiscriminatory access, and that any disparity in access is not caused
by factors within the providing LEC’s control.” SLI/DA Order and NPRM, 14
FCC Rcd at 15619 (¶ 131) (citing 47 C.F.R. § 51.217(e)(1)).

3 A “providing LEC” is a LEC that is required to permit nondiscriminatory access
to its services pursuant to section 251(b)(3); a “competing provider” is a provider
of telephone exchange service or telephone toll service that seeks
nondiscriminatory access from a providing LEC. See, e.g., Implementation of the
Local Competition Provisions of the Telecommunications Act of 1996
, Second
Report and Order and Memorandum Opinion and Order, 11 FCC Rcd 19392,
19444 n.244 (1996) (“Local Competition Second Report and Order”). The FCC
also has determined that certified competing LECs, providers that offer call
completion service, and providers that are acting as the agents of entities that
otherwise qualify under section 251(b)(3) are likewise entitled to
nondiscriminatory access. See Provision of Directory Listing Information under
the Telecommunications Act of 1934, As Amended
, First Report and Order, 16 FCC
Rcd 2736, 2743-50 (¶¶ 12-29) (“DA First Report and Order”) (2001). In this brief,
the abbreviation DA refers collectively to directory assistance and directory
listings.


5

4.

Section 202(a). A provision of the Communications Act that predates the
1996 amendments, section 202(a), establishes a general bar against unreasonable
discrimination by common carriers in their provision of service to customers. That
section makes it “unlawful for any common carrier to make any unjust or
unreasonable discrimination in charges, practices, . . . , or to make or give any
undue or unreasonable preference or advantage to any particular person, . . . or to
subject any person, . . . to any undue or unreasonable prejudice or disadvantage.”
47 U.S.C. § 202(a). Notwithstanding the conclusion of the FCC’s staff that section
251(b)(3) of the Act does not require LECs to furnish their DA database
information to DA providers that do not provide telephone exchange or telephone
toll service, see SLI/DA Order and NPRM, 14 FCC Rcd at 15632 (¶ 156), the
Commission has explained that the question whether LECs must furnish such
service under section 202(a) of the Act “raises complex issues that have not been
fully developed.” DA First Report and Order, 16 FCC Rcd at 2750 (¶ 31). The
FCC specified, however, that when such DA providers have been designated to act
as the agent of a provider of telephone exchange or telephone toll service, “that
competing DA provider is entitled to nondiscriminatory access to the providing
LECs’ local DA database.” Id. at 2748 (¶ 27).4

4 The FCC also noted its expectation that an agent-DA provider’s request for
access “will be accompanied by a letter or other documentation from the [provider
of telephone exchange service or telephone toll service] evidencing its intent that

6

SUMMARY OF ARGUMENT


Nothing in the Communications Act or the FCC’s implementing rules
precludes a LEC from designating an agent to provide nondiscriminatory access to
its subscriber list information and directory assistance databases, as required by
sections 222(e) and 251(b)(3) of the Act. For purposes of those statutory
provisions, nondiscriminatory access means that the LEC (or its agent) must afford
qualified entities the same access to its databases as it provides to its own directory
publisher under section 222(e), or its own directory assistance provider under
section 251(b)(3), nor may a LEC favor one qualified entity over another with
respect to the rates, terms, or conditions of access to its databases. Thus, so long as
a LEC’s agent provides competing LECs or directory publishers the same access to
the LEC’s databases that it provides to the LEC and other qualified entities, neither
the LEC nor its agent would violate sections 222(e), 251(b)(3), and 202(a) of the
Act.

ARGUMENT


“Congress has delegated to the [FCC] the authority to ‘execute and enforce’
the Communications Act.” National Cable & Telecomm. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 980, 125 S. Ct. 2688, 2699 (2005) (quoting 47 U.S.C. § 151).

the DA provider receive access so that it may fulfill its obligations to [the
principal-competing provider].” DA First Report and Order, 16 FCC Rcd at 2748
(¶ 27).

7

The “ambiguities” that Congress incorporated into the statute “will be resolved by
[the FCC as] the implementing agency.” AT&T, 525 U.S. at 397, 119 S. Ct. at 738.
Thus, “a court may not substitute its own construction of a statutory provision for a
reasonable interpretation made by the [FCC].” Chevron U.S.A, Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782 (1984).
Similarly, the courts owe substantial deference to the FCC’s construction of
its own regulations, see Talk Am., Inc. v. Mich. Bell Tel. Co., 131 S. Ct. 2254,
2260-61 (2011), and precedents, see Boca Airport, Inc. v. FAA, 389 F.3d 185, 190
(D.C. Cir. 2004). The FCC’s construction of its own regulations is controlling
unless that construction is “‘plainly erroneous or inconsistent with the regulation[]’
or there is any other ‘reason to suspect that the interpretation does not reflect the
agency’s fair and considered judgment on the matter in question.’” Talk Am., 131
S. Ct at 2261 (quoting Chase Bank, N.A., v. McCoy, 131 S. Ct. 871, 881 (2011)).
As the Supreme Court has explained, this rule of deference extends to FCC
interpretations set forth in an amicus brief. Talk Am., 131 S. Ct. at 2261 (deferring
to FCC rule interpretation contained in amicus brief).
In response to the Court’s question, nothing in the Communications Act or
FCC rules would preclude a LEC from designating an agent to provide qualified
entities with nondiscriminatory access to the LEC’s SLI and DA databases. Those
qualified entities include publishers of directories under section 222(e) or

8

competing providers of telephone exchange or telephone toll services (including
their designated agents) under section 251(b)(3).5
The nondiscriminatory access requirements of sections 222(e) and 251(b)(3)
require a LEC to provide access that is at least equal to that enjoyed by the LEC
itself, and on the rates, terms, and conditions of access that the LEC provides to
other qualified entities. “[A]ny standard that would allow a LEC to offer access
inferior to that enjoyed by the LEC itself would be inconsistent with Congress’
intention of establishing competitive, deregulated markets for all
telecommunications services.” SLI/DA Order and NPRM, 14 FCC Rcd at 15616 (¶
125) (footnote omitted). See also id. at 15582 (¶ 58) (the FCC has determined that
section 222(e)’s “nondiscrimination requirement . . . obligates each carrier that
gathers subscriber list information in its capacity as a provider of local exchange
service to provide that information to requesting directory publishers at the same
rates, terms, and conditions that the carrier provides the information to its own
directory publishing operation, its directory publishing affiliate, or another
directory publisher”); id. at 15618 (¶ 128) (the FCC affirmed that “under section
251(b)(3), ‘nondiscriminatory access’ means that providing LECs must offer

5 A LEC’s duty to provide nondiscriminatory access to directory assistance and
directory listings “is owed to competing providers of telephone exchange service
and/or telephone toll service, and not to ‘all telecommunications carriers.’” Local
Competition Second Report and Order
, 11 FCC Rcd at 19457 (¶ 133). See also
n.3, supra.

9

access equal to that which they provide to themselves”); id. at 15630 (¶ 152) (the
FCC concluded that “section 251(b)(3) prohibits providing LECs from providing
directory assistance database information in a manner that is inferior to that which
they supply to themselves.”).
For example, consistent with the nondiscriminatory access requirement of
section 251(b)(3), the FCC’s rules require that “a LEC share [with competing
providers] the names and addresses of subscribers with unpublished numbers if the
LEC provides those names to its own directory assistance operators.” Id. at 15638
(¶ 167). And, “[i]f a LEC, in its provision of directory assistance service to itself,
allows its own directory assistance operators to see the names and addresses of
subscribers with unlisted information, this information must also be made available
to the requesting competitive LEC.” Ibid. Similarly, with respect to section
222(e), the FCC has observed that, depending on the circumstances, a failure to
provide competing directory publishers with the names and addresses of their
subscribers with unlisted or unpublished numbers (which are excluded from the
definition of SLI) “may be unreasonable or unreasonably discriminatory within the
meaning of sections 201(b) and 202(a) of the Communications Act” if the LEC
provides such information to its own directory publisher. SLI/DA Order and
NPRM, 14 FCC Rcd at 15575 (¶ 41).

10


At bottom, whether a LEC’s actions constitute a violation of the
nondiscriminatory access requirements of sections 222(e) and 251(b)(3) hinges on
the particular facts of a case – specifically, whether the LEC is providing access to
its DA and SLI databases that is equal to the access the LEC itself enjoys and on
the same rates, terms, and conditions that it provides to others. Thus, a LEC’s use
of an agent to provide access to its DA and SLI databases does not necessarily
constitute a violation of sections 222(e), 251(b)(3), or 202(a) of the Act; nor would
the agent’s status as a competitor in acquiring DA and SLI for other LECs. Rather
it is the LEC’s (or its agent’s) conduct that is most determinative of whether the
LEC has provided nondiscriminatory access to its databases as required by sections
222(e) and 251(b)(3) of the Act. See 47 U.S.C. § 217 (“In construing and
enforcing the provisions of this chapter, the act, omission, or failure of any officer,
agent, or other person acting for or employed by any common carrier or user,
acting within the scope of his employment, shall in every case be also deemed to
be the act, omission, or failure of such carrier or user as well as that of the
person.”). See also McLeodUSA, 17 FCC Rcd 6151 (LEC that employed an agent
to provide its SLI to requesting telephone directory publishers held to be charging
unreasonably high rates under section 222(e)).

11

CONCLUSION


As explained above, the FCC believes that the answer to the Court’s
question is negative.
Respectfully
submitted,








Sean A. Lev







Acting General Counsel








Peter Karanjia







Deputy General Counsel








Richard K. Welch
Deputy
Associate
General
Counsel








/s/ Pamela L. Smith








Pamela L. Smith
Counsel

Federal
Communications
Commission
Washington,
D.C.

20554
(202)
418-1740




June 18, 2012

12

CERTIFICATE OF COMPLIANCE



Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(B), the
undersigned certifies that this brief complies with the applicable type-volume
limitations of FRAP 32(a). It was prepared using a proportionately spaced type:
Times New Roman, 14 point. Exclusive of the portions exempted by FRAP
32(a)(7)(B)(iii) and 11th Circuit Rule 32-4, the brief contains 2776 words. This
certificate was prepared in reliance on the word-count function of the
wordprocessing system used to prepare this brief: Microsoft Office Word 2003.

/s/



Pamela
L.
Smith







Pamela L. Smith

11-12221-EE




IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT



LSSi DATA CORP.,

Plaintiff-Appellee,


v.

COMCAST PHONE, LLC,

Defendant-Appellant.



CERTIFICATE OF SERVICE



I, Pamela L. Smith, hereby certify that on June 18, 2012, I electronically
filed the foregoing Amicus Brief for the Federal Communications
Commission with the Clerk of the Court for the United States Court of
Appeals for the Eleventh 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.

Some of the participants in the case, denoted with asterisks below, are not
CM/ECF users. I certify further that I have directed that copies of the
foregoing document be mailed by First-Class Mail to those persons, unless
another attorney at the same mailing address is receiving electronic service.


Robert P. Williams II
*Michael C. Sloan
Bradley M. Davis
*Robert G. Scott
Claiborne Benson Smith
Davis Wright Tremaine, LLP
Troutman Sanders, LLP
1919 Pennsylvania Ave NW Ste 800
600 Peachtree St NE Ste 5200
Washington, DC 20006-3401
Atlanta, GA 30308-2216
Counsel for Comcast Phone, LLC
Counsel for: LSSi Data Corp.

11-12221-EE






*Samuel S. Woodhouse III
*Jaime A. Bianchi
The Woodhouse Law Firm, LLC
White & Case, LLP
260 Peachtree St NW Ste 1402
200 S Biscayne Blvd Ste 4900
Atlanta, GA 30303-1237
Miami, FL 33131-2346
Counsel for: Comcast Phone, LLC
Counsel for Comcast Phone, LLC



/s/ Pamela L. Smith

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