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New Cingular, et al. v. Finley, et al., No. 10-2221 (4th Cir.)

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Released: March 15, 2012
Appeal: 10-2221 Document: 89 Date Filed: 03/15/2012 Page: 1 of 45

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT


NEW CINGULAR WIRELESS PCS,

LLC, d/b/a AT&T Mobility, on
behalf of itself and its wireless
operating affiliates,
Plaintiff - Appellant,
and
ALLTEL COMMUNICATIONS, LLC,
d/b/a Verizon Wireless,
Plaintiff,
v.
EDWARD S. FINLEY, JR., Chairman
(in his official capacity as
Commissioner of the North

Carolina Utilities Commission);
WILLIAM T. CULPEPPER, III,
Commissioner (in his official
capacity as Commissioner of the
North Carolina Utilities
Commission); BRYAN E. BEATTY,
Commissioner (in his official
capacity as Commissioner of the
North Carolina Utilities
Commission); SUSAN WARREN
RABON, Commissioner (in her
official capacity as Commissioner
of the North Carolina Utilities
Commission);


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2
NEW CINGULAR WIRELESS v. FINLEY

LORINZO L. JOYNER, Commissioner

(in his official capacity as
Commissioner of the North
Carolina Utilities Commission);
ELLERBE TELEPHONE COMPANY;
RANDOLPH TELEPHONE COMPANY;
MEBTEL, INCORPORATED; TONOLA D.
BROWN-BLAND, Commissioner;

No. 10-2221
LUCY T. ALLEN, Commissioner,
Defendants-Appellees.
FEDERAL COMMUNICATIONS
COMMISSION,
Amicus Curiae.

ALLTEL COMMUNICATIONS, LLC,

d/b/a Verizon Wireless,
Plaintiff-Appellant,
and
NEW CINGULAR WIRELESS PCS,

LLC, d/b/a AT&T Mobility, on
behalf of itself and its wireless
operating Affiliates,
Plaintiff,
v.


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NEW CINGULAR WIRELESS v. FINLEY
3


EDWARD S. FINLEY, JR., Chairman
(in his official capacity as
Commissioner of the North
Carolina Utilities Commission);
WILLIAM T. CULPEPPER, III,
Commissioner (in his official
capacity as Commissioner of the
North Carolina Utilities
Commission); BRYAN E. BEATTY,
Commissioner (in his official
capacity as Commissioner of the
North Carolina Utilities
Commission); SUSAN WARREN
RABON, Commissioner (in her
official capacity as Commissioner
of the North Carolina Utilities

No. 10-2243
Commission); LORINZO L. JOYNER,
Commissioner (in his official
capacity as Commissioner of the
North Carolina Utilities
Commission); ELLERBE TELEPHONE
COMPANY; RANDOLPH TELEPHONE
COMPANY; MEBTEL, INCORPORATED;
TONOLA D. BROWN-BLAND,
Commissioner; LUCY T. ALLEN,
Commissioner,
Defendants-Appellees.
FEDERAL COMMUNICATIONS
COMMISSION,
Amicus Curiae.

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4
NEW CINGULAR WIRELESS v. FINLEY
Appeals from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, Senior District Judge.
(5:09-cv-00123-BR)
Argued: October 26, 2011
Decided: March 15, 2012
Before AGEE, DAVIS, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Davis wrote the opin-
ion, in which Judge Agee and Judge Keenan joined.

COUNSEL

ARGUED:

Helgi C. Walker, WILEY REIN, LLP, Washing-
ton, D.C., for Appellants. Margaret Ann Force, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina; Daniel C. Higgins, BURNS, DAY & PRESNELL,
PA, Raleigh, North Carolina, for Appellees.

ON BRIEF:

Dennis Friedman, Jeffrey M. Strauss, MAYER BROWN
LLP, Chicago, Illinois, for Appellant New Cingular Wireless
PCS, LLC; Brett A. Shumate, WILEY REIN, LLP, Washing-
ton, D.C., for Appellant Alltel Communications, LLC. Roy
Cooper, North Carolina Attorney General, Raleigh, North
Carolina, for Appellees Commissioners of the North Carolina
Utilities Commission. James M. Mills, BURNS, DAY &
PRESNELL, P.A., Raleigh, North Carolina, for Appellees
Ellerbe Telephone Company, Mebtel, Inc., and Randolph
Telephone Company. Austin C. Schlick, General Counsel,
Peter Karanjia, Deputy General Counsel, Richard K. Welch,
Acting Associate General Counsel, James M. Carr, FED-
ERAL COMMUNICATIONS COMMISSION, Washington,
D.C., for Amicus Curiae.

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NEW CINGULAR WIRELESS v. FINLEY
5

OPINION

DAVIS, Circuit Judge:
This appeal arises from a dispute between Appellees
Ellerbe Telephone Company, Randolph Telephone Company,
and MebTel, Inc., incumbent local exchange carriers that pro-
vide telephone service in rural areas of North Carolina (col-
lectively, "RLECs") and Appellants New Cingular Wireless
PCS, LLC, d/b/a AT&T Mobility ("AT&T Mobility") and
Alltel Communications, LLC, d/b/a Verizon Wireless
("Verizon"),1 which provide commercial mobile radio service
(collectively, "CMRS Providers") in North Carolina. In 2005,
the RLECs formally requested interconnection with the
CMRS Providers. When the parties were unable to reach
agreement on certain issues, the RLECs filed petitions for
arbitration with the North Carolina Utilities Commission
("NCUC"). The NCUC consolidated the petitions, held an
evidentiary hearing, and issued a Recommended Arbitration
Order ("RAO") on December 20, 2007. After the parties filed
objections, the NCUC issued a final Order Ruling on Objec-
tions and Requiring the Filing of Composite Agreements
("FAO") on December 31, 2008. The parties filed conforming
interconnection agreements ("ICAs") on February 20, 2009.
The NCUC approved the ICAs by order on February 24, 2009
("approval order").
On March 26, 2009, the CMRS Providers filed a complaint
in the U.S. District Court for the Eastern District of North
Carolina against the RLECs and the Commissioners of the
NCUC in their official capacities (referred to as "NCUC" or
"Commissioners"), seeking review of several determinations
made by the NCUC and, ultimately, the NCUC’s approval of
1Verizon is referred to as "Alltel" in the NCUC proceedings and in the
district court order. In 2009, Alltel Communications, LLC, became a
wholly-owned indirect subsidiary of Cellco Partnership d/b/a Verizon
Wireless.

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NEW CINGULAR WIRELESS v. FINLEY
portions of the ICAs. They sought declaratory and injunctive
relief and compensation.
On November 16, 2009, the CMRS Providers, the RLECs,
and the NCUC filed cross motions for summary judgment.
The district court denied the CMRS Providers’ motion for
summary judgment and granted the RLECs’ and the NCUC’s
motions for summary judgment. See New Cingular Wireless
PCS, LLC v. Finley
, No. 5:09-CV-123-BR, 2010 WL
3860384 (E.D.N.C. Sept. 30, 2010). The district court also
affirmed the NCUC’s December 31, 2008 FAO and February
24, 2009 approval order. Id. The CMRS Providers timely
appealed. We affirm.
I.
A.
We begin with a description of the statutory and regulatory
framework in which the present dispute arises. In so doing,
we briefly describe recent revisions to the regulatory regime
administered by the FCC, but we further point out, see infra
n.5, that the effective date of some of those revisions, July 1,
2012, renders it unnecessary for us to accommodate those
changes.
The Telecommunications Act of 1996 aims "to transition
the [telecommunications] industry from regulated monopoly
to unregulated competition." 1 Peter W. Huber et al., Federal
Telecommunications Law
§ 1.9 (2d ed. Supp. 2011) (hereinaf-
ter "Huber"). To achieve this goal, the Act seeks to "clear[ ]
away the obstacles to new entry" for new competitors and
requires incumbent Local Exchange Carriers ("ILECs"), spe-
cifically, "to assist" new competitors entering the market. Id.
Congress recognized "that the provision of local service
required significant infrastructure and that the prohibitive cost
of duplicating an incumbent LEC’s infrastructure would be an
insuperable barrier to entry," and thus "imposed on incum-

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NEW CINGULAR WIRELESS v. FINLEY
7
bents a number of affirmative duties intended to facilitate
market entry by potential competitors." MCImetro Access
Transmission Servs., Inc. v. BellSouth Telecomms., Inc.
, 352
F.3d 872, 874 (4th Cir. 2003).
One way ILECs assist new entrants, which is relevant here,
is through "interconnection." See 47 U.S.C. § 251(c)(2).
While the Act requires all "telecommunications carrier[s]"2
"to interconnect directly or indirectly," id. § 251(a)(1), the Act
requires ILECs, specifically, upon request, to interconnect "at
any technically feasible point within the [ILEC’s] network,"
id. § 251(c)(2)(B); see also MCImetro, 352 F.3d at 875; Atlas,
400 F.3d at 1265 ("[T]he obligation under § 251(c)(2) applies
only to the far more limited class of ILECs, as opposed to the
obligation imposed on all telecommunications carriers under
§ 251(a)."). Interconnection, as used in § 251(c)(2), is defined
as the "physical linking of two networks for the mutual
exchange of traffic." Local Competition Order, 11 F.C.C.
Rcd. at 15590 ¶ 176 (emphasis added); see also 47 C.F.R.
§ 51.5. "[T]ransport and termination" of one carrier’s traffic
by another carrier is not considered "providing interconnec-
tion under the Act." Huber § 5.6.4.1; see also 47 C.F.R.
§ 51.5 (expressly excluding "transport and termination of traf-
fic" from the definition of interconnection). In 2005, the FCC
amended its rules to clarify that "[ILECs] may request inter-
connection from a CMRS provider and invoke the negotiation
and arbitration procedures set forth in section 252 of the Act."
See Developing a Unified Intercarrier Compensation Regime,
2"The FCC has determined that CMRS providers qualify as ‘telecom-
munications carriers,’ and thus are subject to the provisions of § 251(a)."
Atlas Tel. Co. v. Okla. Corp. Comm’n, 400 F.3d 1256, 1262 n.3 (10th Cir.
2005) (citing Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996
, 11 F.C.C. Rcd. 15499, 15598-99 ¶ 1012
(1996) ("Local Competition Order")); see also Local Competition Order,
11 F.C.C. Rcd. at 15998-99 ¶ 1012 ("Incumbent LECs must accordingly
make interconnection available to these CMRS providers in conformity
with the terms of sections 251(c) and 252, including offering rates, terms,
and conditions that are just, reasonable and nondiscriminatory.").

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NEW CINGULAR WIRELESS v. FINLEY
20 F.C.C. Rcd. 4855, 4864-65 ¶¶ 15-16 (2005); see also 47
C.F.R. § 20.11(e).
Without interconnection, "customers of different LECs in
the same local calling area would not be able to call each other."3
MCImetro, 352 F.3d at 875. When a customer of Carrier A
places a phone call to a customer of Carrier B, the call goes
through the network of Carrier A (the "originating" carrier)
and is completed on the network of Carrier B (the "terminat-
ing" carrier). In some instances, the originating carrier and the
terminating carrier are "directly" interconnected. In other
instances, such as the circumstances in this case,4 the originat-
ing and terminating carriers are "indirectly" interconnected.
When a customer of Carrier A calls a customer of Carrier B,
the call originates on Carrier A’s equipment but is delivered
to a third-party transit provider (here, typically AT&T Mobili-
ty’s affiliate, BellSouth Telecommunications, Inc., d/b/a
AT&T North Carolina ("AT&T North Carolina")). The third-
party transit provider delivers the call to Carrier B. Carrier B
then delivers the call to its customer.
The Act also requires all LECs "to establish reciprocal
compensation arrangements for the transport and termination
of telecommunications."5 47 U.S.C. § 251(b)(5). "Under a
(Text continued on page 10)
3Traffic to or from CMRS Providers is treated as "local" if it "originates
and terminates within the same Major Trading Area" ("MTA"). 47 C.F.R.
§ 51.701(b)(2). An MTA "is the largest FCC-authorized wireless license
territory, and might encompass all or part of numerous state-defined local
calling areas." Atlas, 400 F.3d at 1261 (citing Local Competition Order,
11 F.C.C. Rcd. at 16014 ¶ 1036). Here, the calls originate and terminate
within the same MTA. New Cingular Wireless, 2010 WL 3860384, at *5
n.7.
4One reason the CMRS Providers and the RLECs here "do not generally
establish direct interconnection is because the relatively small amounts of
traffic do not justify the costs." New Cingular Wireless, 2010 WL
3860384, at *2 n.3.
5While the FCC declined to treat CMRS Providers as LECs in its Local
Competition Order, the FCC determined "that LECs are obligated under

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NEW CINGULAR WIRELESS v. FINLEY
9
§ 251(b)(5) to enter into reciprocal compensation arrangements with
CMRS providers." Atlas, 400 F.3d at 1263 (citing Local Competition
Order
, 11 F.C.C. Rcd. at 15996-97 ¶ 1006, 1008).
Since we heard oral argument in this case, the FCC released its decision
in Connect America Fund, 2011 WL 5844975 (rel. Nov. 18, 2011)
("Reform Order"), and its sua sponte Order on Reconsideration, Connect
America Fund
, 2011 WL 6778613 (rel. Dec. 23, 2011) ("Reconsideration
Order"). The Reform Order replaces reciprocal compensation with a "de-
fault" "bill-and-keep" system for the exchange of wireless telecommunica-
tions traffic. 2011 WL 5844975, at *186, *269 ¶¶ 736, 994-95. "Under
bill-and-keep arrangements, a carrier generally looks to its end-
users—which are the entities and individuals making the choice to sub-
scribe to that network—rather than looking to other carriers and their cus-
tomers to pay for the costs of its network." Id. at *186 ¶ 737. The FCC
found that "the bill-and-keep default should apply immediately" "for traf-
fic to or from a CMRS provider subject to reciprocal compensation under
either section 20.11 or the Part 51 rules." Id. at *269 ¶ 995. The FCC set
the effective date for the new rules and transition to bill-and-keep for
December 29, 2011. Id. at *373 ¶ 1412; 76 Fed. Reg. 73830 (Nov. 29,
2011).
In the Reform Order, the FCC stated, "[W]e emphasize that our reforms
do not abrogate existing commercial contracts or interconnection agree-
ments or otherwise require an automatic ‘fresh look’ at these agreements."
Id. at *209 ¶ 815; see also id. at *271 ¶ 1000 ("[W]e are not abrogating
existing commercial contracts or interconnection agreements or otherwise
allowing for a ‘fresh look’ in light of our reforms. Thus, incumbent LECs
may have an extended period of time under existing compensation
arrangements before needing to renegotiate subject to the new default bill-
and-keep methodology.") (footnote omitted). The FCC "decline[d] to
require that these existing arrangements be reopened in connection with
the reforms in this Order, and leave such issues to any change-of-law pro-
visions in these arrangements and commercial negotiations among the par-
ties." Id. at *209 ¶ 815.
In the Reconsideration Order, the FCC retained the December 29, 2011
effective date for the new rules but modified the bill-and-keep transition
period. See 2011 WL 6778613, at *2-3 ¶ 5, 6. The FCC ruled that "inter-
carrier compensation for non-access traffic exchanged between LECs and
CMRS providers pursuant to an interconnection agreement in effect as of
the adoption date of this Order, will be subject to a default bill-and-keep
methodology on July 1, 2012 rather than on December 29, 2011." Id. at
*3 ¶ 7.

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NEW CINGULAR WIRELESS v. FINLEY
typical reciprocal compensation agreement between two carri-
ers, the carrier on whose network the call originates bears the
cost of transporting the telecommunications traffic to the
point of interconnection with the carrier on whose network
the call terminates." Atlas, 400 F.3d at 1260. "Having been
compensated by its customer, the originating network in turn
Because the existing ICAs will continue to govern the traffic exchanged
here until they default to bill-and-keep on July 1, 2012, we need not con-
sider the effect of the new default bill-and-keep methodology. Given this
and to avoid confusion, all citations and quotations to the Code of Federal
Regulations do not reflect the most recent amendments, but reference the
rules prior to the most recent amendments.
In its Reform Order, the FCC also adopted "an interim default rule allo-
cating responsibility for transport costs applicable to non-access traffic
exchanged between CMRS providers and rural, rate-of-return regulated
LECs to provide a gradual transition for such carriers." 2011 WL
5844975, at *270 ¶ 998. The interim default rule provides:
For Non–Access Telecommunications Traffic exchanged
between a rate-of-return regulated rural telephone company as
defined in § 51.5 and a CMRS provider, the rural rate-of-return
incumbent local exchange carrier will be responsible for transport
to the CMRS provider’s interconnection point when it is located
within the rural rate-of-return incumbent local exchange carrier’s
service area. When the CMRS provider’s interconnection point is
located outside the rural rate-of-return incumbent local exchange
carrier’s service area, the rural rate-of-return incumbent local
exchange carrier’s transport and provisioning obligation stops at
its meet point and the CMRS provider is responsible for the
remaining transport to its interconnection point. This paragraph
(c) is a default provision and applicable in the absence of an
existing agreement or arrangement otherwise.
47 C.F.R. § 51.709(c). We need not decide whether, as the RLECs con-
tend in supplemental briefing, this interim rule moots the appeal for
Ellerbe Telephone and Randolph Telephone. In the Reconsideration
Order, the FCC also extended the effective date of this rule to July 1,
2012. 2011 WL 6778613, at *3, *6 ¶ 7 n.24 ("We similarly adjust the tim-
ing of the rural transport rule because the basis for this rule was a gradual
transition for these carriers to the default bill-and-keep methodology and
therefore the timing for the two rules should be the same.").

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NEW CINGULAR WIRELESS v. FINLEY
11
compensates the terminating carrier for completing the call."
Id.; see also Local Competition Order, 11 F.C.C. Rcd. at
16013 ¶ 1034 ("[R]eciprocal compensation for transport and
termination of calls is intended for a situation in which two
carriers collaborate to complete a local call. In this case, the
local caller pays charges to the originating carrier, and the
originating carrier must compensate the terminating carrier
for completing the call."). The obligation for transport begins
at the "interconnection point between the two carriers." 47
C.F.R. § 51.701(c).
Reciprocal compensation arrangements must "provide for
the mutual and reciprocal recovery by each carrier of costs
associated with the transport and termination on each carrier’s
network facilities of calls that originate on the network facili-
ties of the other carrier" with costs being determined "on the
basis of a reasonable approximation of the additional costs of
terminating such calls." 47 U.S.C. § 252(d)(2)(A)(i)-(ii). The
regulations implementing the reciprocal compensation
requirement provide that an ILEC’s "rates for transport and
termination of telecommunications traffic shall be established
. . . on the basis of [t]he forward-looking economic costs of
such offerings, using a cost study pursuant to [47 C.F.R.]
§§ 51.505 and 51.111." 47 C.F.R. § 51.705(a)(1). The cost
study measures the "total element long-run incremental cost"
("TELRIC") of transport and termination. Id. § 51.505(a)(1).
The TELRIC "should be measured based on the use of the
most efficient telecommunications technology currently avail-
able and the lowest cost network configuration, given the
existing location of the incumbent LEC’s wire centers." Id.
§ 51.505(b)(1). The reciprocal compensation rate may also
include "[a] reasonable allocation of forward-looking com-
mon costs." Id. § 51.505(a)(2).
"The default rule is that rates for transport and termination
are symmetrical," that is, an ILEC’s transport and termination
rates apply to the competitor. Huber § 5.11.2.5; see 47 C.F.R.
§ 51.711(a) ("[S]ymmetrical rates are rates that a carrier other

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NEW CINGULAR WIRELESS v. FINLEY
than an incumbent LEC assesses upon an incumbent LEC for
transport and termination of telecommunications traffic equal
to those that the incumbent LEC assesses upon the other car-
rier for the same services."). "[I]f the carrier other than the
[ILEC]," 47 C.F.R. § 51.711(b), establishes on the basis of a
forward-looking cost study "that its cost will be greater than
that of the [ILEC] for transport and termination," an "asym-
metrical" rate may be established for the transport and termi-
nation of telecommunications traffic, Local Competition
Order
, 11 F.C.C. Rcd. at 16042-43 ¶¶ 1089, 1091.
Congress recognized that some ILECs, particularly those in
rural areas, were not prepared to assume new duties. Congress
thus exempted "certain rural telephone companies" from
§ 251(c)’s obligations until a state commission determines
that a "request for interconnection, services, or network ele-
ments" "is not unduly economically burdensome." 47 U.S.C.
§ 251(f)(1). Congress also provided that a LEC "with fewer
than 2 percent of the Nation’s subscriber lines installed in the
aggregate nationwide may petition a State commission for a
suspension or modification of the application of a requirement
or requirements of [§ 251] (b) or (c)." Id. § 251(f)(2).
The Act also establishes a "procedural framework" through
which ILECs and other telecommunications carriers must
negotiate and enter into ICAs. MCImetro, 352 F.3d at 875;
see 47 U.S.C. § 252(a)(1). To the extent they cannot reach an
agreement, either carrier "may petition a State commission to
arbitrate any open issues." 47 U.S.C. § 252(b)(1). "In resolv-
ing . . . any open issues and imposing conditions upon the par-
ties to the agreement," the state commission is required,
among other duties, to "ensure that such resolution and condi-
tions meet the requirements of [47 U.S.C. § 251], including
the regulations prescribed by the [FCC] pursuant to [47
U.S.C. § 251]." Id. § 252(c)(1). The state commission must
also "establish any rates for interconnection, services, or net-
work elements according to [47 U.S.C. § 252(d)]." Id.
§ 252(c)(2). The results of the arbitration are then memorial-

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13
ized in an ICA between the carriers that is submitted to the
state commission for approval. See id. § 252(e)(1). "[A]ny
party aggrieved" may then "bring an action in an appropriate
Federal district court to determine whether the [ICA] meets
the requirements of [47 U.S.C. §§ 251 and 252]." Id.
§ 252(e)(6).
B.
1.
We now lay out the background to this appeal. In 2005, the
RLECs filed a petition with the NCUC asking to "be relieved
of any requirement that they provide [TELRIC] studies to any
requesting carrier with respect to reciprocal compensation."
J.A. 41. In its modification order, the NCUC determined that
the RLECs were not "required to perform TELRIC studies to
establish reciprocal compensation rates." J.A. 53. The NCUC
modified the TELRIC requirements and set out seven guide-
lines the RLECs were to follow when performing alternate
cost studies to set reciprocal compensation rates. The guide-
lines are as follows:
1. The cost data should be easily obtainable, verifi-
able, and reflect only the direct costs associated with
the transport and termination of traffic.
2. The cost data may be a surrogate of the compa-
ny’s cost, but should be forward looking and reflect
an efficient network to the extent practicable.
3. The rates for transport and termination of traffic
should be usage based.
4. The capital costs and structure should reflect the
cost and structure approved by the Commission in
previous decisions in Docket No. P-100, Sub 133d.

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NEW CINGULAR WIRELESS v. FINLEY
5. Depreciation should reflect the economic lives
and net salvage values within the ranges established
by the FCC.
6. The study should include a reasonable allocation
of common costs to be added to direct costs.
7. The study should not include retail costs, oppor-
tunity costs, or revenues to subsidize other services.
J.A. 46. The NCUC later affirmed this decision in the Decem-
ber 31, 2008 FAO. The CMRS Providers never appealed the
modification order.
Meanwhile, in September 2006, the RLECs separately filed
petitions for arbitration with the NCUC. The NCUC consoli-
dated the petitions and held an evidentiary hearing in April
2007. On December 20, 2007, the NCUC issued a RAO. Most
relevant, the NCUC ruled that under § 252(c)(2) there was
one point of interconnection ("POI") between the CMRS Pro-
viders and the RLECs that was located on the RLECs’ net-
works. After receiving objections to the RAO, the NCUC
issued its FAO on December 31, 2008.
The NCUC first reaffirmed its conclusion that there was
one POI between the CMRS Providers and the RLECs that
was located on the RLECs’ networks. However, the NCUC
abandoned reliance on § 251(c)(2), finding that specific statu-
tory provision to be not "determinative of the location of the
POI." J.A. 207-08. The NCUC found that § 251(c)(2) could
be triggered only upon request, and is not applicable when, as
here, "an ILEC initiates arbitration." Id. at 208. The only basis
for interconnection in this case could be found in § 251(a)(1).
The NCUC explained, "Unlike the language of Section
251(c)(2), Section 251(a)(1) does not specify the number of
POIs or where the POI or POIs should be located." Id. Thus,
the NCUC determined that "the literal language of Section
251(a)(1), in an arbitration in which an RLEC seeks intercon-

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NEW CINGULAR WIRELESS v. FINLEY
15
nection with a CMRS Provider, would seem to provide the
Commission with the discretion to determine how many POIs
there should be and where they should be located." Id. The
NCUC "proceed[ed] to determine, on the basis of its sound
discretion, the number and location of the POIs for purposes
of the parties’ [ICAs]." Id. at 208-09.
In reaffirming its initial conclusion in the RAO, the NCUC
based its decision on certain, in its terms, "equities." Id. at
209-10. These included,
First, there are the relative sizes of the CMRS Pro-
viders and the RLECs. The RLECs in these dockets
are small, rural telephone companies with limited
service areas, while the CMRS Providers are mas-
sive entities whose local calling areas, or MTAs,
sprawl across states. As such, the CMRS Providers’
network can, with only slight exaggeration, be called
ubiquitous, while those of the RLECs are small and
local. Under that set of circumstances, it is more
equitable for there to be a single POI that is located
on the RLECs’ networks.
Second, the use of a single POI places these
RLECs, practically speaking, in the same position as
they would have been had they been able to rely on
Section 251(c)(2). . . .
Third, the use of a single point in the circum-
stances of these dockets is conceptually less compli-
cated than the use of multiple POIs. . . .
Id. at 210.6 The NCUC also found that the third-party transit
6In its brief, the NCUC clarifies in regard to its second consideration
that, given the absence of further guidance when the FCC adopted its new
rule allowing ILECs to request interconnection, "it was not unreasonable
. . . to adopt the single-POI approach" used "when requests are made upon
[ILECs]" because "that is the only arrangement that is described in the Act
or regulations" and "is considered fair when large [ILECs] are requested
to interconnect." NCUC’s Br. 37.

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NEW CINGULAR WIRELESS v. FINLEY
network is considered to be "a virtual part of the CMRS Pro-
vider’s network." Id.
The NCUC then concluded that "[t]he RLECs are techni-
cally and financially responsible for transporting and deliver-
ing their originating traffic to the chosen POI and for paying
reciprocal compensation to cover the cost of terminating and
completing the call beyond the POI, but they are not responsi-
ble for transit charges, based on the CMRS Providers’ use of
a third party provider’s network facilities, beyond the POI."
Id. at 220 (internal quotation marks omitted). The NCUC
found that "payment of transit charges will be the CMRS Pro-
vider’s responsibility in the first instance in connection with
RLEC-originated calls," but that CMRS Providers could be
reimbursed "in the form of reciprocal compensation paid by
the RLEC." Id. at 211. Further, "[a]ny genuine financial dis-
advantage" is "curable by a proceeding to arrive at an asym-
metric reciprocal compensation rate." Id.
Finally, the NCUC determined,
Because the Commission modified the reciprocal
compensation requirements of Section 251(b)(5) of
the Act in [the modification order], the RLECs are
not required to perform strict TELRIC studies to
establish reciprocal compensation rates, and the rates
proposed for reciprocal compensation do not have to
comply with all of the requirements set forth in Sec-
tion 252(d) of the Act and related FCC rules.
Id. at 224.
The parties filed conforming ICAs, which the NCUC
approved by order on February 24, 2009.
2.
On March 26, 2009, the CMRS Providers filed suit against
the RLECs and the Commissioners of the NCUC in their offi-

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NEW CINGULAR WIRELESS v. FINLEY
17
cial capacities in the U.S. District Court for the Eastern Dis-
trict of North Carolina, seeking review of several
determinations made by the NCUC and of the NCUC’s
approval of portions of the ICAs. They sought declaratory and
injunctive relief and compensation. The CMRS Providers
alleged that (1) "the NCUC’s single-POI and transit-charge
rulings conflict with federal law"; and (2) "the NCUC lacks
authority under Section 251(f)(2) to relieve the RLECs of
their obligation to establish reciprocal compensation rates
consistent with federal pricing standards set forth in Section
252(d)(2)(A) and FCC regulations or to approve arbitrated
rates that do not comply with that provision." CMRS Provid-
ers’ Br. 7 (citing J.A. 23-30).
On November 16, 2009, the parties filed cross motions for
summary judgment. On September 30, 2010, the district court
denied the CMRS Providers’ motion for summary judgment
and granted the NCUC’s and the RLECs’ motions for sum-
mary judgment. The district court affirmed the NCUC’s
December 31, 2008 FAO and the NCUC’s February 24, 2009
approval order.
As an initial matter, the district court agreed with the
NCUC that § 251(a)(1) "provides the only basis for the indi-
rect interconnections," and that § 251(a)(2) "is silent regard-
ing the terms and conditions of indirect interconnections."
New Cingular Wireless, 2010 WL 3860384, at *5. Regarding
the location of the POIs and determination of financial
responsibility for transit costs, the district court held that "it
was not improper for the NCUC to conclude that there was
just one POI for the purposes of allocating financial responsi-
bility for the transit costs in this case." Id. at *7. Moreover,
the district court concluded that imposition of financial
responsibility for paying the transit costs for RLEC-originated
traffic upon the CMRS Providers was not inconsistent with
federal regulations, id. at *8-9, the CMRS Providers’ argu-
ment regarding the NCUC’s findings about asymmetrical
compensation was "without merit," id. at *9-10, and "the

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18
NEW CINGULAR WIRELESS v. FINLEY
equities found in this situation support the result reached," id.
at *10-11.
The district court concluded that "the Act and its accompa-
nying regulations provide very little guidance regarding the
terms of indirect interconnections," "nothing in the Act . . .
mandates the number or location of the POI(s)," and "the Act
does not address the issue of allocation of financial responsi-
bility for interconnection costs." Id. at *11.
On the CMRS Providers’ second claim for relief, the dis-
trict court held that the NCUC possesses authority under
§ 251(f)(2) to modify TELRIC pricing standards for the
RLECs. Id. at *11-14.
II.
The legal issues before us, though complex as a matter of
statutory interpretation and application, are nonetheless easily
stated: whether the district court erred as a matter of law in
concluding that (1) the NCUC’s order adopting a single POI
approach to indirect interconnection and allocating the
responsibility for payment of transit charges for RLEC-
originated traffic to the CMRS Providers is consistent with
the Act and regulations, and (2) the NCUC has authority
under § 251(f)(2) to modify TELRIC pricing standards for the
RLECs.
Prior to oral argument, we solicited an amicus brief from
the FCC on the issues raised in this appeal.7 See Amicus Br.
7The Supreme Court recently noted that an agency’s interpretation of its
regulations in an amicus brief is worthy of deference. See Chase Bank
USA, N.A. v. McCoy
, 562 U.S. ___, ___, 131 S. Ct. 871, 880 (2011)
("[W]e defer to an agency’s interpretation of its own regulation, advanced
in a legal brief, unless that interpretation is ‘plainly erroneous or inconsis-
tent with the regulation.’") (quoting Auer v. Robbins, 519 U.S. 452, 461
(1997)); Talk America, Inc. v. Mich. Bell Tel. Co., 564 U.S. ___, ___, 131
S. Ct. 2254, 2261 (2011) (same).
We decline the FCC’s suggestion to hold this case in abeyance or dis-
miss the case without prejudice and direct the parties to file a pleading at
the FCC requesting an answer to these issues in a declaratory ruling.

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NEW CINGULAR WIRELESS v. FINLEY
19
for the FCC in Support of Neither Party ("FCC Br."). The
FCC indicated that it "has not directly ruled on the precise
issues raised by these cases." Id. at 1. Specifically, the FCC
explained that "[n]o prior FCC order has addressed whether
the originating carrier or the terminating carrier is responsible
for paying transit charges to an intermediate carrier under
[these] facts." Id. "Nor has the FCC clearly opined on whether
the Communications Act authorizes state commissions to sus-
pend or modify the application of federal pricing requirements
to small rural telephone companies." Id. at 1-2.
Because we ultimately agree with the arguments advanced
by the RLECs and the NCUC, we affirm the judgment of the
district court.8
III.
We review de novo the district court’s grant of summary
judgment and the NCUC’s interpretation of the Act and its
accompanying federal regulations.9 MCImetro, 352 F.3d at
8Prior to oral argument, we requested supplemental briefing addressing
whether AT&T North Carolina, the third-party transit provider, is a neces-
sary or indispensible party, as well as whether this matter is ripe for deci-
sion "given that the transit providers apparently have yet to incur any
transit charges." Because we find these issues to be not as close as we
once thought they might be given the benefit of supplemental briefing and
argument, we elect not to address them here.
We also dispense here with the contention that Verizon may not seek
review of the NCUC’s determination of the first issue on appeal because
Verizon resolved the POI issue through negotiation and stipulation with
the RLECs prior to arbitration, not by determination in the NCUC’s order.
Because we affirm the judgment of the district court, we need not address
this issue here. Instead, we assume, without deciding, Verizon may seek
review.
9Despite their labeling as "findings of fact," J.A. 198, to the extent the
NCUC’s conclusions regarding the POI issue, financial responsibility for
transit charges, and the need for TELRIC-based reciprocal compensation
rates are grounded in interpretations of the Act and its accompanying reg-
ulations, and the application of the statutory and regulatory provisions to
the facts presented in this case, we treat them as conclusions of law subject
to de novo review.

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NEW CINGULAR WIRELESS v. FINLEY
876; Bellsouth Telecomms., Inc. v. Sanford, 494 F.3d 439, 447
(4th Cir. 2007) ("Actions of state commissions taken under 47
U.S.C. §§ 251 and 252 are reviewed in federal court de novo
to determine whether they conform with the requirements of
those sections."). While the NCUC’s interpretations of federal
law are accorded no deference, "an order of a state commis-
sion may deserve a measure of respect in view of the commis-
sion’s experience, expertise, and the role that Congress has
given it in the Telecommunications Act." BellSouth Tele-
comms.
, 494 F.3d at 447; GTE S., Inc. v. Morrison, 199 F.3d
733, 745 (4th Cir. 1999). Certainly, state commission orders
construing the Act fall outside the reach of Chevron, U.S.A.
Inc. v. Natural Resources Defense Council, Inc.
, 467 U.S. 837
(1984), but "the views of state commissions may nevertheless
deserve respect under Skidmore[ v. Swift & Co., 323 U.S. 134
(1944)]." BellSouth Telecomms., 494 F.3d at 447-48. The
amount of respect varies according to "‘the degree of the
agency’s care, its consistency, formality, and relative expert-
ness,’ as well as ‘the persuasiveness of the agency’s posi-
tion.’" Id. at 448 (quoting United States v. Mead Corp., 533
U.S. 218, 228 (2001)); see also id. (considering how the state
commission’s orders "align with the decisions of other state
commissions"). According the NCUC’s views some measure
of respect does not trump our independent ability to resolve
this matter; rather, it reflects a realistic recognition of the
expertise of state regulatory bodies dealing daily in a techni-
cal area of the law.
Despite the CMRS Providers’ arguments to the contrary,
the NCUC’s decision is worthy of some deference. Although
we review legal issues of a federal nature, the NCUC has "ex-
pertise and experience in applying [tenets of] communications
law." Id. The NCUC proceedings involved evidence and argu-
ment, and the parties prefiled testimony, participated in an
evidentiary hearing, and briefed the arguments. The NCUC
issued a lengthy RAO and a lengthy FAO, attesting to the
comprehensiveness of the proceedings below. Moreover,
while the NCUC acknowledged that its decision was "incon-

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NEW CINGULAR WIRELESS v. FINLEY
21
sistent" with persuasive federal court authority and decisions
by other state commissions, the NCUC analyzed those deci-
sions "closely" and remained convinced of its own reasoning
and decision. J.A. 97.
The fact that the NCUC changed its basis for the single POI
conclusion between the RAO and FAO does not significantly
weigh against giving the NCUC’s decision a measure of
respect. Notably, the NCUC changed the basis of its conclu-
sion on an issue that was affected by a change recently made
by the FCC—allowing ILECs to initiate arbitration with
CMRS Providers—without "mak[ing] other corresponding
changes to the rights and duties of the parties under the Act."
Id. at 208. The "inconsistency" appears to be a result of a lack
of guidance in a case of first impression, rather than, as in the
case relied upon by the CMRS Providers, an "undulation[ ] in
interpreting a statute" not entitled to deference. A.T. Massey
Coal Co. v. Holland
, 472 F.3d 148, 170 (4th Cir. 2006) (find-
ing that no Skidmore deference should be given to the Com-
missioner of Social Security’s determination because, among
other factors, the Commissioner’s positions were inconsistent
"over the years").10
The NCUC’s factual findings are reviewed under the sub-
stantial evidence standard. GTE S., 199 F.3d at 745 & n.5
("We are aware that in reviewing state commission arbitration
decisions under the Act, some other courts, including the dis-
10There is no danger that giving the NCUC’s decision a measure of def-
erence is contrary to or undermines the "theoretical underpinning" of Skid-
more
"that certain agency rulings should be respected because they
‘constitute a body of experience and informed judgment to which courts
and litigants may properly resort for guidance
.’" CMRS Providers’ Reply
Br. 14-15 (quoting Skidmore, 323 U.S. at 140). The NCUC only used its
discretion in reaching its conclusion after thoroughly examining federal
law and other legal authority and did not, as the CMRS Providers assert,
use a "case-by-case, equitable approach to interconnection, which admit-
tedly will vary according to the facts of each case." Id. at 14. Giving defer-
ence in this instance thus does not frustrate the underpinnings of Skidmore.

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NEW CINGULAR WIRELESS v. FINLEY
trict court in this case, have used the ‘arbitrary and capricious’
standard of review. With respect to review of factfindings,
there is no meaningful difference between this standard and
the substantial evidence standard we apply.") (citations omit-
ted). "In applying the substantial evidence standard, a ‘court
is not free to substitute its judgment for the agency’s . . . ; it
must uphold a decision that has substantial support in the
record as a whole even if it might have decided differently as
an original matter." Id. at 746 (quoting AT & T Wireless PCS,
Inc. v. City Council of Virginia Beach
, 155 F.3d 423, 430 (4th
Cir. 1998)) (internal quotation marks omitted). To the extent
the NCUC relied on findings of fact to determine, in its dis-
cretion, the first issue on appeal, these factual findings are
subject to substantial evidence review.11
IV.
The CMRS Providers challenge the district court’s affir-
mance of the NCUC’s determination that there should be one
POI and that the CMRS Providers should be required to pay
transit costs incurred for RLEC-originated traffic on four
grounds: (A) § 251 itself requires there to be two POIs when
telecommunications carriers are indirectly connected through
a transit provider; (B) the NCUC’s single POI approach vio-
lates FCC regulations by improperly shifting financial respon-
sibility for the RLECs’ transit charges to the CMRS
Providers; (C) the district court erred by deferring to the
NCUC’s consideration of the "equities"; and (D) the district
court’s reliance on the CMRS Providers’ potential recovery of
transit charges through reciprocal compensation does not cure
the NCUC’s legally flawed decision. We address each argu-
ment in turn.
11As we explain infra in Part IV.C, the district court did not err in apply-
ing the applicable standards of review. The district court thoroughly
reviewed the Act and the FCC regulations de novo. The district court only
then extended some measure of deference to the NCUC’s decision. See
New Cingular Wireless
, 2010 WL 3860384, at *10-11.

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NEW CINGULAR WIRELESS v. FINLEY
23
A.
Despite the CMRS Providers’ various attempts to challenge
the NCUC’s conclusion, § 251 and the broader statutory
scheme do not mandate two POIs when telecommunications
carriers are indirectly connected via a third-party transit pro-
vider. Moreover, even if we were to accept the CMRS Provid-
ers’ arguments that there must be two physical POIs, this does
not necessarily mean the RLECs are responsible for paying
the transit costs for RLEC-originated traffic.
Section 251(a)(1) itself does not compel a two POI
approach in the circumstances of this case. Section 251(a)(1)
obligates each telecommunications carrier "to interconnect
directly or indirectly with the facilities and equipment of other
telecommunications carriers." 47 U.S.C. § 251(a)(1). Contrary
to the CMRS Providers’ contention that Congress’s use of "or
indirectly" requires there to be two POIs in the case of indi-
rect interconnection, § 251(a)(1) cannot be read so narrowly.
Section 251(a)(1) neither defines "indirect" nor indicates the
number or location of POIs. The lone mention of the "point"
where interconnection must occur is found in § 251(c)(2)(B),
which establishes a duty specific to ILECs to interconnect
with a "requesting telecommunications carrier" "at any techni-
cally feasible point within the [ILEC’s] network" and does not
apply here.12 Indeed, as the NCUC and the district court con-
cluded, § 251(a)(1) "is silent regarding the terms and condi-
tions of indirect interconnection." New Cingular Wireless,
2010 WL 3860384, at *5.
12The language "or indirect" does not become superfluous when we sep-
arate, below, the concept of a physical POI from an "operative POI" (as
the RLECs term the point where financial responsibility shifts). RLECs’
Br. 10. In other words, there may be two physical POIs in the case of indi-
rect interconnection, but it does not follow that the physical POI is the POI
for financial purposes. For the same reason, the CMRS Providers’ argu-
ment that the district court’s factual findings compel a two POI approach
fails.

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Nor is the single POI approach inconsistent with the statu-
tory scheme. The CMRS Providers attack the NCUC’s con-
clusion as improperly subjecting them under § 251(a)(1) to
the additional obligations of § 251(c)(2)(B). This, they argue,
"impermissibly protects the RLECs from the economic conse-
quences of their decision to send traffic to the CMRS provid-
ers via a third-party transit provider by shifting responsibility
for the transit provider’s charges to the CMRS providers."
CMRS Providers’ Br. 34. In making this argument, they rely
heavily on the Tenth Circuit’s opinion in Atlas Telephone Co.
v. Oklahoma Corp. Commission
, 400 F.3d 1256 (10th Cir.
2005), and the Eighth Circuit’s opinion in WWC License,
L.L.C. v. Boyle
, 459 F.3d 880 (8th Cir. 2006), to argue that
other circuits have rejected similar cost-shifting efforts by
RLECs as inconsistent with the Act, and that affirming the
district court would leave this Circuit with a decision "funda-
mentally at odds" with the decisions of the Tenth and Eighth
Circuits. CMRS Providers’ Br. 18-19.
While the CMRS Providers’ argument may be appealing on
the surface, we are ultimately unpersuaded. Atlas similarly
involved a dispute between CMRS Providers and LECs, spe-
cifically, rural telephone companies, regarding the way to
handle compensation for third-party transferred calls occur-
ring in the same MTA. However, the issue presented was very
different. The CMRS Providers argued that, regardless of the
presence of the interexchange carrier, the third-party carrier,
the exchange was subject to the Act’s reciprocal compensa-
tion obligations under § 251(b)(5). 400 F.3d at 1260. The
LECs argued that the traffic passing through the third-party
carrier was subject to the access charge, or long-distance call-
ing, regime. Id. Under this regime, the originating caller
would pay the third-party carrier, which in turn would com-
pensate the originating and terminating networks; the LECs
thus argued they had no duty to compensate the CMRS Pro-
viders for transport and termination of the traffic. Id.
In Atlas, the district court affirmed various aspects of the
state commission’s orders, including its determination "that

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NEW CINGULAR WIRELESS v. FINLEY
25
reciprocal compensation obligations apply to all calls origi-
nated by an [LEC] and terminated by a wireless provider
within the same [MTA], without regard to whether those calls
are delivered via an intermediate carrier." Id. at 1261 (internal
quotation marks omitted). In reviewing this specific conclu-
sion, the Tenth Circuit analyzed § 251(b)(5) and the FCC’s
regulations and held that LECs "have a mandatory duty to
establish reciprocal compensation agreements with the CMRS
providers for calls originating and terminating within the
same MTA." Id. at 1264 (citation omitted). The court con-
cluded, "Nothing in the text of these provisions provides sup-
port for the [LECs’] contention that reciprocal compensation
requirements do not apply when traffic is transported on [the
intermediary] network." Id.
The court then rejected the LECs’ argument that this hold-
ing was inconsistent with § 251(c)(2), which "mandates that
the exchange of local traffic occur at specific, technically fea-
sible points within an [LEC’s] network, and that this duty is
separate and distinct, though no less binding on interconnect-
ing carriers, from the reciprocal compensation arrangements
mandated by § 251(b)(5)." Id. at 1265 (footnote omitted). The
court explained that § 251(c)(2) only imposes a duty on
ILECs, not all telecommunications carriers governed more
broadly by § 251(a). Id. Adopting the LECs’ interpretation
would "contravene[ ] the express terms of the statute." Id. In
the course of rejecting the argument and holding that
§ 251(c)(2) "does not govern interconnection for the purposes
of local exchange traffic," the court also noted that "the
[LECs’] argument that CMRS providers must bear the
expense of transporting [LEC]-originated traffic on the [inter-
mediary] network must fail." Id. at 1266 n.11.
As the district court correctly found, the Atlas reasoning
and holding are not particularly persuasive here. The RLECs
are not arguing that the access regime applies or that recipro-
cal compensation does not apply to calls they originate.
(Indeed, the parties agree with the Atlas holding, i.e., the

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26
NEW CINGULAR WIRELESS v. FINLEY
reciprocal compensation regime applies. See New Cingular
Wireless
, 2010 WL 3860384, at *6.) Nor are certain findings
made by the Tenth Circuit directly relevant or persuasive here.13
The footnote relied upon by the CMRS Providers in which the
Tenth Circuit disposed of a seemingly additional argument is
dictum not integral to resolve the ultimate issue in the case.
Cf. Pittston Co. v. United States, 199 F.3d 694, 703 (4th Cir.
1999) ("Dictum is statement in a judicial opinion that could
have been deleted without seriously impairing the analytical
foundations of the holding—that, being peripheral, may not
have received the full and careful consideration of the court
that uttered it.") (internal quotation marks omitted); Export
Group v. Reef Indus., Inc.
, 54 F.3d 1466, 1471-72 (9th Cir.
1995) (adopting definition of dictum as "an observation or
remark . . . not necessarily involved in the case or essential
to its determination") (internal quotation marks omitted). The
question in Atlas was whether "reciprocal compensation obli-
gations apply to all calls originated by an [LEC] and termi-
nated by a wireless provider within the same major trading
area, without regard to whether those calls are delivered via
an intermediate carrier," Atlas, 400 F.3d at 1261 (internal
quotation marks omitted); the issues we confront here were
not before the Tenth Circuit. Thus, resolution of the additional
argument was not necessary to the "analytical foundations of
the holding."
Likewise, neither is WWC License controlling or persua-
13Nor do we find persuasive the language in the "background" section
merely describing the indirect interconnection as having two POIs or the
second part of the decision, in which the Tenth Circuit dealt with whether
"the Telecommunications Act requires competing carriers to establish a
physical connection within an ILEC’s network for the exchange of local
traffic." Atlas, 400 F.3d at 1260, 1268. The "background" description was
not integral to the holding. And, as the district court here explained, the
second part of the decision was disposed of in a two paragraph summary
analysis and "has no bearing on the issue of establishing the location of
the POI(s) or on the issue of financial responsibility for transit costs." New
Cingular Wireless
, 2010 WL 3860384, at *7 n.8.

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NEW CINGULAR WIRELESS v. FINLEY
27
sive. The language relied upon throughout the CMRS Provid-
ers’ brief to buttress its cost-shifting argument addresses the
duty to provide local dialing parity. The Eighth Circuit dis-
cussed "interconnection" in the context of local dialing parity
and held that the Act does not permit the state commission "to
impose a direct connection requirement as a condition on the
receipt of local dialing parity." 459 F.3d at 893. Again, the
Eighth Circuit did not address the specific issues before us.
Thus, we are unable to find the NCUC’s conclusion inconsis-
tent with § 251(c)(2)(B).
Nor is the single POI approach inconsistent with § 251’s
"specific statutory vehicles," CMRS Providers’ Br. 39, that
accommodate rural carriers or with § 252’s requirement of
"mutual and reciprocal" recovery. The single POI approach
does not "trump[ ]" or "expand[ ]" the provisions of § 251
enacted by Congress for certain RLECs, id., but is the practi-
cal result of congressional silence in § 251(a)(1) and a lack of
administrative guidance when deciding that RLECs may for-
mally request interconnection with CMRS Providers but pro-
viding no additional instructions.
Moreover, to whatever extent the CMRS Providers’ inter-
pretation of § 252(d)(2)(A)(i) has merit, we do not find the
argument sufficiently persuasive to cast doubt on our analysis
up to this point. The CMRS Providers argue that by identify-
ing a single POI and treating the transit network as a virtual
part of the CMRS Providers’ networks, the NCUC created a
situation where the CMRS Provider is always responsible for
transit costs (both for originating and terminating traffic);
thus, compensation will not be "mutual and reciprocal," as
required by 47 U.S.C. § 252(d)(2)(A)(i), or "for the same ser-
vices," as required by 47 C.F.R. § 51.711(a)(1). CMRS Pro-
viders’ Br. 40. We disagree.
We first note that it appears no transit charges are currently
being assessed by AT&T North Carolina on RLEC-originated
traffic, and that AT&T North Carolina has never assessed

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28
NEW CINGULAR WIRELESS v. FINLEY
transit charges in connection with RLEC-originated indirect
traffic.14 Thus, it is not clear that, as the CMRS Providers
appear ultimately to argue, the reciprocal compensation mech-
anism will not adequately address their concerns. Moreover,
we find it difficult to reconcile the CMRS Providers’ interpre-
tation with, albeit in a different scenario, the FCC’s determi-
nation that a third-party transit provider "may charge a
terminating carrier for the portion of facilities used to deliver
transiting traffic to the terminating carrier," and the terminat-
ing carrier "may seek reimbursement of these costs from orig-
inating carriers through reciprocal compensation." Texcom,
Inc. v. BellAtlantic Corp.
, 17 F.C.C. Rcd. 6275, 6276-77 ¶ 4
(2002).
Even accepting the CMRS Providers’ arguments that § 251
mandates two physical POIs, it does not follow, as the district
court explained, that § 251(a)(1) mandates a two POI
approach in which the financial POI for reciprocal compensa-
tion purposes is located at the POI between the transit carrier
and the CMRS Provider. See New Cingular Wireless, 2010
WL 3860384, at *7. Nowhere in the Act or regulations is
"point of interconnection" defined. Certainly, the most obvi-
ous meaning is the physical point where two carriers’ net-
works meet. Indeed, interconnection, as used in § 251(c)(2),
is defined as "the physical linking of two networks for the
mutual exchange of traffic." Local Competition Order, 11
F.C.C. Rcd. at 15590 ¶ 176. But this definition specifically
does not include the transport and termination of traffic. Id.
Transport and termination are instead addressed in the recip-
rocal compensation arrangements of § 251(b)(5). Thus, while
"POI" has taken on "financial connotations," as here, a dis-
14The CMRS Providers admit "AT&T Mobility has not yet begun to
receive bills from [the third-party transit provider] (or any other transit
provider the RLECs might employ) for the RLECs’ use of those facilities
for RLEC-originated traffic" and that "Verizon Wireless has not received
bills for RLEC transit charges from [the third-party transit provider]
because Alltel agreed to direct interconnection with the RLECs." CMRS
Providers’ Supp. Br. (filed on Oct. 18, 2011) at 9 & n.3.

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NEW CINGULAR WIRELESS v. FINLEY
29
tinction does in fact exist between the POI as a physical loca-
tion and the POI as the "billing point." See New Cingular
Wireless
, 2010 WL 3860384, at *7.
Indeed, the FCC highlighted in its amicus brief that it "pre-
viously has observed that the point at which a carrier bears
financial responsibility for intercarrier compensation (in this
case, the payment of transit charges) may not necessarily be
the physical POI between networks." FCC Br. 5. In a 2001
order, the FCC concluded that Verizon did not violate the Act
or FCC rules by "distinguish[ing] between the physical POI
and the point at which Verizon and an interconnecting com-
petitive LEC are responsible for the cost of interconnection
facilities" because the "issue of allocation of financial respon-
sibility for interconnection facilities" was "an open issue" in
the agency’s intercarrier compensation rulemaking docket.
Application of Verizon Pennsylvania, Inc., 16 F.C.C. Rcd.
17419, 17474 ¶ 100 (2001), aff’d, Z-Tel Commc’ns, Inc. v.
FCC
, 333 F.3d 262 (D.C. Cir. 2003); see also Application by
Verizon Maryland, Inc.
, 18 F.C.C. Rcd. 5212, 5273 ¶ 103
(2003) (finding that Verizon could designate an "interconnec-
tion point" that "is different" from "the physical point of inter-
connection" for the purpose of "determin[ing] financial
responsibility for inter-network calls").
Therefore, the NCUC did not err in determining that there
was a single POI for the purpose of allocating financial
responsibility for transit costs.
B.
The CMRS Providers next argue that the NCUC’s determi-
nation regarding their responsibility to pay transit costs for
RLEC-originated traffic is prohibited by 47 C.F.R.
§ 51.703(b). The CMRS Providers rely in particular on MCI-
metro Access Transmission Services, Inc. v. BellSouth Tele-
communications, Inc.
, 352 F.3d 872 (4th Cir. 2003). The
CMRS Providers essentially argue that carriers must enter

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30
NEW CINGULAR WIRELESS v. FINLEY
arrangements so that each carrier only pays for its originated
traffic. Contrary to this argument, however, we agree with the
district court that 47 C.F.R. § 51.703(b) is not applicable here,
where transit charges are not assessed by the RLECs, but by
a third-party carrier. New Cingular Wireless, 2010 WL
3860384, at *8.
47 C.F.R. § 51.703(b) provides, "A LEC may not assess
charges on any other telecommunications carrier for telecom-
munications traffic that originates on the LEC’s network."
Our conclusion, consistent with the district court’s, is not
"empty formalism," CMRS Providers’ Br. 44, but follows
from the plain language of the rule. Indeed, the FCC has
explained "transiting" and the payment of transiting charges
in a way that supports our conclusion:
Transiting occurs when two carriers that are not
directly interconnected exchange non-access traffic
by routing the traffic through an intermediary carri-
er’s network. Typically, the intermediary carrier is
an incumbent LEC and the transited traffic is routed
from the originating carrier through the incumbent
LEC’s tandem switch to the terminating carrier. The
intermediary (transiting) carrier then charges a fee
for use of its facilities
. . . . The reciprocal compensa-
tion provisions of the Act address the exchange of
traffic between an originating carrier and a terminat-
ing carrier, but the Commission’s reciprocal com-
pensation rules do not directly address the
intercarrier compensation to be paid to the transit
service provider.
Developing a Unified Intercarrier Compensation Regime, 20
F.C.C. Rcd. at 4737-38 ¶ 120 (emphasis added) (footnotes
omitted).
Moreover, the CMRS Providers’ argument that this strict
reading "cannot be squared with the rule’s fundamental pur-

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NEW CINGULAR WIRELESS v. FINLEY
31
pose of ensuring that each carrier bears responsibility for the
costs of traffic originating on its network," CMRS Providers’
Br. 44, fails to acknowledge that transit costs are ultimately
recoverable (if they are ever assessed) through reciprocal
compensation. Indeed, the CMRS Providers ignore the possi-
bility of petitioning the NCUC for an asymmetrical compen-
sation rate if they believe the reciprocal compensation
arrangement does not adequately reimburse them.
Furthermore, it is hard to square the CMRS Providers’
position with the FCC’s acknowledgment of the use of the
reciprocal compensation mechanism in a slightly different
context. As we briefly explained above, in Texcom, Inc. v.
BellAtlantic Corp.
, 17 F.C.C. Rcd. 6275 (2002), the FCC
determined that a third-party transit provider "may charge a
terminating carrier for the portion of facilities used to deliver
transiting traffic to the terminating carrier," and the terminat-
ing carrier "may seek reimbursement of these costs from orig-
inating carriers through reciprocal compensation." 17 F.C.C.
Rcd. at 6276-77 ¶ 4 (citing TSR Wireless, LLC v. US West
Commc’ns, Inc.
, 15 F.C.C. Rcd. 11166, 11184 ¶ 19 n.70
(2000), petitions for review denied, Qwest Corp. v. FCC, 252
F.3d 462 (D.C. Cir. 2001)). While Texcom and other orders
relied upon by the RLECs are not directly on point (the dis-
putes were between transit providers and terminating carriers
where the terminating carrier was a "paging carrier" that only
receives and does not originate telecommunications traffic),
they at least lend a sliver of interpretive assistance. See FCC
Br. 7 & n.3 (distinguishing TSR Wireless, 15 F.C.C. Rcd.
11166; Mountain Commc’ns, Inc. v. Qwest Commc’ns Int’l,
Inc.
, 17 F.C.C. Rcd. 15135 (2002), vacated in part, Mountain
Commc’ns, Inc. v. FCC
, 355 F.3d 644 (D.C. Cir. 2004);
Metrocall, Inc. v. Concord Tel. Co., 17 F.C.C. Rcd. 2252,
2257 ¶ 11 (2002)).15
15In its amicus brief, the FCC acknowledged, "The FCC has yet to spe-
cifically address whether the terminating or originating carrier is responsi-
ble for paying transit charges when (as in this case) the terminating
carrier’s dispute is with the originating carrier (rather than the transit pro-
vider), and the terminating carrier is a provider of wireless voice and data
services (as opposed to a paging carrier)." FCC Br. 7.

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Moreover, the FCC apparently has recognized that "transit"
between carriers is a type of "transport" addressed by recipro-
cal compensation, further suggesting that in a scenario such
as this terminating carriers may recover for transit charges
that are assessed by the third-party carrier from the originat-
ing carrier through reciprocal compensation:
We conclude that transport and termination should
be treated as two distinct functions. We define
"transport," for purposes of section 251(b)(5), as the
transmission of terminating traffic that is subject to
section 251(b)(5) from the interconnection point
between the two carriers to the terminating carrier’s
end office switch that directly serves the called party
(or equivalent facility provided by a non-incumbent
carrier). Many alternative arrangements exist for the
provision of transport between the two networks.
These arrangements include: dedicated circuits pro-
vided either by the incumbent LEC, the other local
service provider, separately by each, or jointly by
both; facilities provided by alternative carriers;
unbundled network elements provided by incumbent
LECs; or similar network functions currently offered
by incumbent LECs on a tariffed basis. Charges for
transport subject to section 251(b)(5) should reflect
the forward-looking cost of the particular provision-
ing method.
Local Competition Order, 11 F.C.C. Rcd. at 16015 ¶ 1039
(emphasis added). The CMRS Providers, however, ignore this
potential route of recovery.
MCImetro, relied upon by the CMRS Providers, is distin-
guishable.16 In MCImetro, MCI, exercising its right under
16We find persuasive the district court’s explanation of T-Mobile USA,
Inc. v. Armstrong, No. 3:08-36-DCR, 2009 WL 1424044 (E.D. Ky. May
20, 2009), in which the RLECs argued that they were responsible for the

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NEW CINGULAR WIRELESS v. FINLEY
33
§ 251(c)(2)(B), decided to interconnect with BellSouth’s net-
work at one point in the North Carolina local access and
transport area through a single switch. 352 F.3d at 877. Due
to this arrangement, all traffic had to pass through that POI,
regardless of the location of the customers, and BellSouth
incurred greater costs for transporting routine local traffic. Id.
BellSouth agreed to pay for transporting calls from the cus-
tomer to the edge of the local calling area without charge. Id.
at 877 n.2. BellSouth urged that MCI should pay the incre-
mental cost of transporting the call from the edge of the local
calling area to the POI. Id. at 877. The NCUC adopted this
proposal. Id. BellSouth, as distinguished from the RLECs
here, was attempting to, in contravention of 47 C.F.R.
§ 51.703(b), directly assess charges on MCI. Thus, the court
held that "the charge that BellSouth seeks to impose" is pro-
hibited because "Rule 703(b) is unequivocal in prohibiting
LECs from levying charges for traffic originating on their
own networks, and, by its own terms, admits of no excep-
tions." Id. at 881. It bears repeating that, in contrast, the
charges here are being assessed by the transit carrier.
Thus, neither 47 C.F.R. § 51.703(b) nor our interpretation
of it requires reversal of the NCUC’s resolution of the first
issue on appeal.
C.
The CMRS Providers next argue that the district court erred
by deferring to the NCUC’s consideration of the "equities."
They first contend that the NCUC exceeded its statutory
authority under § 252(c)(1) by deciding the POI issue based
on the "equities." They also contend that the district court
cost of transporting their originating calls up to the POI they negotiated
and had no further responsibility, as distinguishable. The RLECs here will
compensate the CMRS Providers through reciprocal compensation. See
New Cingular Wireless
, 2010 WL 3860384, at *9.

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34
NEW CINGULAR WIRELESS v. FINLEY
erred under § 252(e)(6) by failing to ensure that the NCUC’s
decision met the requirements of §§ 251 and 252. We dis-
agree with both of these propositions.
Fulfilling its duty as arbitrator to resolve "open issues" and
"impos[e] conditions" in compliance with § 251 and regula-
tions promulgated pursuant to § 251, the NCUC necessarily
undertook the course it did. Section 252(c)(1) provides that
"[i]n resolving by arbitration . . . any open issues and impos-
ing conditions upon the parties to the agreement, a State com-
mission shall ensure that such resolution and conditions meet
the requirements of [§ 251 and its accompanying regula-
tions]." The NCUC did not substitute equitable considerations
for legal requirements. Rather, it is apparent from the RAO
and the FAO that the NCUC first thoroughly reviewed the Act
and persuasive federal authority. The NCUC next concluded
that the Act, particularly § 251(a)(1), did not "specify the
number of POIs or where the POI or POI(s) should be located."17
J.A. 208. Only then did the NCUC "proceed to determine, on
the basis of its sound discretion, the number and location of
the POIs for the purposes of the parties’ interconnection
agreements." Id. at 208-09. This is a far cry from a situation
in which a wayward state commission shirked its duty under
17The NCUC stated in the FAO:
Unlike the language of Section 251(c)(2), Section 251(a)(1) does
not specify the number of POIs or where the POI or POIs should
be located. As a result, the literal language of Section 251(a)(1),
in an arbitration in which an RLEC seeks interconnection with a
CMRS Provider, would seem to provide the Commission with the
discretion to determine how many POIs there should be and
where they should be located.
J.A. 208. Indeed, the NCUC seemed to recognize the predicament of hav-
ing to resolve the instant dispute without clear legal instruction: "The
Telecommunications Act places the burden on state commissions to arbi-
trate such matters, subject to review by federal courts." Id. at 209.

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NEW CINGULAR WIRELESS v. FINLEY
35
the Act, using its discretion to elevate the "equities" in a par-
ticular case above the law.18
Moreover, what the NCUC termed the "equities," but what
were actually the particular facts and administrative consider-
ations underlying the parties’ dispute, were relevant to the
inquiry. We cannot say the NCUC was incorrect in consider-
ing that the chosen approach was "conceptually less compli-
cated," particularly when it noted that the set up "does not
necessarily work to deprive either party of its just compensa-
tion for transit."19 J.A. 210. While the NCUC might too heav-
ily have considered that its conclusion placed the RLECs "in
the same position as they would have been had they been able
to rely on Section 251(c)(2)," id., it is clear this concern
merely expressed the lack of guidance and the NCUC’s belief
that "it was not unreasonable . . . to adopt the single-POI
approach that is established when requests are made upon
incumbent LECs," NCUC’s Br. 37. Given the failure of the
18We are unpersuaded that, as the CMRS Providers argue, the NCUC’s
use of the "equities," and the district court’s "ratification of that approach,
upset the careful balance that Congress and the FCC struck between com-
petition and the protection of rural carriers," and that the NCUC’s "case-
by-case equitable approach undermines" congressional intent that §§ 251
and 252 "‘facilitate consistent resolution of interconnection issues.’"
CMRS Providers’ Br. 49-50 (quoting Local Competition Order, 11 F.C.C.
Rcd. at 16005 ¶ 1024). The discretionary authority exercised here is only
appropriate given the NCUC’s careful review of the law and the specifics
of this case; notably, the FCC was only able to provide us with limited
guidance on the issues raised here. And the authority is only acceptable
because a careful review of the Act and persuasive federal authority left
the NCUC without guidance but required it to resolve the open issues.
19We note that this is especially true considering, as we believe we may
for practical purposes, that AT&T Mobility’s affiliate, AT&T North Caro-
lina, typically provides the third-party transit function. (We do note that
one CMRS Provider, Verizon, has no corporate relationship with AT&T
Mobility. CMRS Providers’ Reply Br. 36.) As counsel for the RLECs
stated at oral argument, the NCUC could have reasonably considered "the
potential risk for the RLEC of being exposed to a transit cost scenario
that’s negotiated between affiliates that it’s not party to." Fourth Circuit
Oral Argument, at 30:40 (Oct. 26, 2011).

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NEW CINGULAR WIRELESS v. FINLEY
Act to provide direction in a case such as this, the NCUC
properly recognized these facts and considerations in reaching
its conclusion.
Finally, the district court did not violate its own statutory
obligation to ensure that the NCUC’s decision met the
requirements of §§ 251 and 252 by deferring to the NCUC’s
reliance on the "equities." Section 252(e)(6) provides that
"any party aggrieved by [a state commission’s] determination
may bring an action in an appropriate Federal district court to
determine whether the agreement or statement meets the
requirements of [§§ 251 and 252]." The district court first
conducted a thorough de novo review of the Act, the FCC’s
regulations, and other legal authorities, making its own con-
clusions about the single POI approach and allocation of
financial responsibility. Only then did the district court evalu-
ate the NCUC’s consideration of the "equities," appropriately
extending some measure of deference under Skidmore. See
New Cingular Wireless
, 2010 WL 3860384, at *10-11.
D.
Finally, the CMRS Providers argue that the "purported
cure" to the NCUC’s legally flawed decision is deficient
because federal regulations do not permit recovery of these
transit charges through reciprocal recovery arrangements.
CMRS Providers’ Br. 51-52. They further argue that even if
the charges could be recovered, any scheme that compels
them to use asymmetrical rates and to perform TELRIC cost
studies to recover the RLECs’ transit costs is inconsistent
with federal law.
We are unpersuaded by the CMRS Providers’ attempt to
use a strict interpretation of 47 C.F.R. § 51.701(e) to under-
mine the NCUC’s conclusion.20 Given the FCC’s discussion
2047 C.F.R. § 51.701(e) states, "[A] reciprocal compensation arrange-
ment between two carriers is one in which each of the two carriers
receives compensation from the other carrier for the transport and termina-
tion on each carrier’s network facilities of telecommunications traffic that
originates on the network facilities of the other carrier."

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NEW CINGULAR WIRELESS v. FINLEY
37
in the Local Competition Order and its explanation in Tex-
com
, it is difficult to find persuasive the CMRS Providers’
position, i.e., because transit services do not occur on either
the CMRS Providers’ or the RLECs’ "network facilities,"
transit charges are not recoverable through reciprocal com-
pensation arrangements. In defining "transport" under
§ 251(b)(5) in its Local Competition Order, the FCC recog-
nized that "[m]any alternative arrangements exist for the pro-
vision of transport between two networks," including
"facilities provided by alternative carriers," 11 F.C.C. Rcd. at
16015 ¶ 1039, thereby suggesting that reciprocal compensa-
tion covers these charges. In addition, as explained earlier, see
supra
Part IV.B, in Texcom the FCC acknowledged the use of
the reciprocal compensation mechanism in a similar context,
recognizing that transit carriers "may charge a terminating
carrier for the portion of facilities used to deliver transiting
traffic to the terminating carrier," and that the terminating car-
rier "may seek reimbursement of these costs from originating
carriers through reciprocal compensation." Texcom, 17 F.C.C.
Rcd. at 6277 ¶ 4.
We are unpersuaded that the NCUC’s findings compel the
CMRS Providers to seek reimbursement through asymmetri-
cal compensation rates.21 Reciprocal compensation might ade-
21The CMRS Providers argue, "Even if these transit charges could be
recovered through reciprocal compensation, which they cannot be, any
scheme that compelled CMRS providers to use asymmetrical rates and
perform TELRIC cost studies in order to recover the RLECs’ transit
costs—as proposed by both the District Court and the NCUC—would
deprive CMRS providers of their legal right to choose between symmetri-
cal and asymmetrical reciprocal compensation rates and the need to do
cost studies." CMRS Providers’ Br. 53 (citations omitted). They believe
that, "[u]nder the NCUC’s single-POI and ‘virtual’ network conclusions
and indeed the terms of the ICAs mandated by the NCUC, the ‘symmetri-
cal’ reciprocal compensation received by a CMRS provider, without any
cost study, for transporting and terminating each RLEC-originated call
would not in fact be ‘symmetrical’ because it would be partially offset by
the charge assessed by the transit provider for delivering the call to the
CMRS Provider." Id. at 54.

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NEW CINGULAR WIRELESS v. FINLEY
quately address transit costs incurred by the CMRS Providers.
As the district court aptly explained, the CMRS Provider pays
an RLEC the same rate of reciprocal compensation for trans-
port and termination of traffic originated by the CMRS Pro-
vider as the RLEC pays the CMRS Provider for transport and
termination of traffic originated by the RLEC. See New
Cingular Wireless
, 2010 WL 3860384, at *10 ("Because the
compensation is ‘reciprocal,’ each carrier pays the other the
same amount for terminating a minute of traffic.") (citing 47
C.F.R. § 51.711(a)(1)). The rate is determined based upon the
RLEC’s cost of terminating a minute of CMRS-originated
traffic, and the CMRS Provider receives the same reciprocal
compensation rate. The differences in costs incurred by RLEC
and CMRS Providers is not considered in determining the
reciprocal compensation rate.
Moreover, no transit charges are currently being assessed
by the transit provider on RLEC-originated traffic. It is not
clear that at the end of the day costs will actually be nonre-
coverable. It might even be the case, as the district court
pointed out, that "the economies of scale and resultant lower
costs [CMRS Providers] . . . would enjoy, could reasonably
be expected to be considerably more favorable than the costs
incurred by the RLECs." Id. (internal quotation marks omit-
ted). Therefore, we are convinced neither that the CMRS Pro-
viders may not adequately recover transit costs in the
reciprocal compensation rate nor that they are "deprive[d] . . .
of the right to choose symmetrical rates without a cost study."
CMRS Providers’ Br. 54. If at some point the CMRS Provid-
ers are invoiced for RLEC transit charges and believe they are
being unfairly compensated, then they may seek an asymmet-
rical compensation rate.22
22We need not address the NCUC’s claim that the compensation
approach advanced by the CMRS Providers would require the RLECs "to
pay twice for transport and termination of calls they originate: through
symmetrical compensation rates to [the CMRS Providers], and again
through transit charges to the transit provider," NCUC’s Br. 49-50, and the

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NEW CINGULAR WIRELESS v. FINLEY
39
V.
We also conclude that the district court did not err in hold-
ing that the NCUC possesses statutory authority under 47
U.S.C. § 251(f)(2) to modify the TELRIC guidelines.23 The
CMRS Providers argue that § 251(f)(2) is plain and unambig-
uous in giving state commissions limited authority to suspend
or modify only the application of a requirement or require-
ments of § 251(b) and (c), not "the mandatory cost-based pric-
ing requirement for reciprocal compensation rates" set forth in
§ 252(d)(2)(A). They contend that the district court failed to
adhere to the plain and unambiguous language and erred in
relying on § 252(d)(2)(A)’s reference to § 251(b)(5) and the
in pari materia doctrine to reach a conclusion that is inconsis-
tent with the Act’s purpose.
We begin by setting out the applicable principles of statu-
tory interpretation.24 In determining whether the NCUC has
the authority under § 251(f)(2) to modify25 the pricing stan-
CMRS Providers’ response that the RLECs would pay the transit provider
"for transit services provided on that carrier’s network between the two
POIs," and "the CMRS providers for their services in terminating the
RLECs’ originating traffic on their networks beyond the second POI,"
CMRS Providers’ Reply Br. 35.
23Because we affirm the district court’s judgment, we assume, but need
not decide, the CMRS Providers may challenge this issue despite their
failure to appeal the NCUC’s modification order at the time it was entered.
Indeed, they do not challenge the NCUC’s modification order, but instead
challenge "whether the [NCUC] has the subject matter jurisdiction to
allow the reciprocal compensation rates of the RLECs to be established by
any methodology other than that established by the Act and the FCC." J.A.
28.
24It is not clear whether the district court found the language of
§ 251(f)(2) plain and unambiguous upon a consideration of the language’s
meaning, placement, and context, or whether the district court found the
language ambiguous and then construed the statute in pari materia with
§ 252(d)(2)(A). See New Cingular Wireless, 2010 WL 3860384, at *13-
14.
25We focus on "modification" as the RLECs’ petition sought "modifica-
tion of certain aspects of requirements under 47 U.S.C. § 251(b)(5)." J.A.
41.

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dards for reciprocal compensation arrangements in
§ 252(d)(2)(A) and the FCC’s implementing regulations, we
first look to the language of § 251(f)(2), the statutory provi-
sion at issue. United States v. Hatcher, 560 F.3d 222, 226 (4th
Cir. 2009). We "determine whether ‘the language at issue has
a plain and unambiguous meaning with regard to the particu-
lar dispute in the case.’" Universal Mar. Serv. Corp. v.
Wright
, 155 F.3d 311, 318 (4th Cir. 1998) (quoting Robinson
v. Shell Oil Co.
, 519 U.S. 337, 340 (1997)). We look "‘to the
language itself, the specific context in which that language is
used, and the broader context of the statute as a whole.’"
McLean v. United States, 566 F.3d 391, 396 (4th Cir. 2009)
(quoting Robinson, 519 U.S. at 341); Universal Mar. Serv.
Corp.
, 155 F.3d at 319 ("[B]ecause the ‘meaning of statutory
language, plain or not, depends on context,’ we must consider
‘not only the bare meaning of the word but also its placement
and purpose in the statutory scheme.’") (quoting Bailey v.
United States
, 516 U.S. 137, 145 (1995)) (internal quotation
marks omitted). This includes examining § 251(f)(2) within
the broader context of the statute. Cf. Universal Mar. Serv.
Corp.
, 155 F.3d at 320 & n.11 (looking to the entire Long-
shore and Harbor Workers’ Compensation Act to determine
whether "the specific context of [the immediate provision] is
. . . diminished by looking to the broader context of the statute
as a whole"); Household Credit Servs., Inc. v. Pfennig, 541
U.S. 232, 239-42 (2004) (examining related provisions of the
Truth in Lending Act to determine whether the statutory pro-
vision at issue is ambiguous); Robinson, 519 U.S. at 340-45
(considering, among other provisions, §§ 701(c), (e), (f),
706(g)(1), and 717(a), (b), (c) of Title VII of the Civil Rights
Act of 1964 to determine whether the meaning of "employ-
ees" in § 704(a) is plain and unambiguous).
If the language is ambiguous, cf. Hatcher, 560 F.3d at 231
(Shedd, J., dissenting) ("A statute is ambiguous if its lan-
guage, when read in context, is susceptible to more than one
reasonable interpretation.") (citing Newport News Shipbuild-
ing & Dry Dock Co. v. Brown
, 376 F.3d 245, 248 (4th Cir.

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NEW CINGULAR WIRELESS v. FINLEY
41
2004)), we then turn to other evidence to interpret the mean-
ing of the provision, such as the rule of in pari materia and
the legislative history, Universal Mar. Serv. Corp., 155 F.3d
at 318; United States v. Broncheau, 645 F.3d 676, 685 (4th
Cir. 2011) ("The principle of in pari materia is applicable . . .
only ‘where the meaning of a statute is ambiguous or doubt-
ful.’") (quoting N. Pac. Ry. Co. v. United States, 156 F.2d
346, 350 (7th Cir. 1946)). The rule of in pari materia "is but
a logical extension of the principle that individual sections of
a single statute should be construed together," Erlenbaugh v.
United States
, 409 U.S. 239, 244 (1972), to resolve ambigui-
ties in the language of a statutory provision, United States v.
Morison
, 844 F.2d 1057, 1064 (4th Cir. 1988) ("When a stat-
ute is a part of a larger Act . . . , the starting point for ascer-
taining legislative intent is to look to other sections of the Act
in pari materia with the statute under review."). We have
explicitly "interpreted the principle to mean that ‘adjacent
statutory subsections that refer to the same subject matter’
should be read harmoniously." Broncheau, 645 F.3d at 685
(quoting Va. Int’l Terminals, Inc. v. Edwards, 398 F.3d 313,
317 (4th Cir. 2005)). That is, "statutes addressing the same
subject matter generally should be read ‘as if they were one
law.’" Wachovia Bank v. Schmidt, 546 U.S. 303, 316 (2006)
(quoting Erlenbaugh, 409 U.S. at 243) (internal quotation
marks omitted); see, e.g., Morison, 844 F.2d at 1064-65 (con-
struing §§ 793(d) and 794 of the Espionage Act in pari mate-
ria
because they were "intended to and did cover separate and
distinct offenses, with separate and distinct punishment" and
"[i]t is important . . . to ascertain the essential element in each
section which made it separate and distinct from the other").
We find that the language of § 251(f)(2)26 is plain and
26Section 251(f)(2) provides:
A local exchange carrier with fewer than 2 percent of the
Nation’s subscriber lines installed in the aggregate nationwide
may petition a State commission for a suspension or modification

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unambiguous in authorizing state commissions to modify the
TELRIC guidelines for the RLECs. To be sure, the pricing
standards of § 252(d)(2)(A) are not specifically mentioned in
the language of § 251(f)(2), which only allows "rural carriers"
to "petition a State commission for a suspension or modifica-
tion of the application of a requirement or requirements of
subsection (b) or (c)."27 It is plain from the broader context of
the statute, however, that modification of § 251(b)(5), explic-
itly provided for in the statutory provision at issue, includes
the authority to modify the pricing standards elucidated in
§ 252(d)(2)(A) and the accompanying regulations.
of the application of a requirement or requirements of subsection
(b) or (c) of this section to telephone exchange service facilities
specified in such petition. The State commission shall grant such
petition to the extent that, and for such duration as, the State com-
mission determines that such suspension or modification—
(A) is necessary—
(i) to avoid a significant adverse economic impact on users
of telecommunications services generally;
(ii) to avoid imposing a requirement that is unduly eco-
nomically burdensome; or
(iii) to avoid imposing a requirement that is technically
infeasible; and
(B) is consistent with the public interest, convenience, and
necessity.
27We reject the CMRS Providers’ argument that the absence of any ref-
erence to § 252(d)(2)(A) in § 251(f)(2) was intentional. Here, as opposed
to the case relied upon by the CMRS Providers, a phrase appearing else-
where is not missing from the particular section under review. See Doe v.
Chao
, 435 F.3d 492, 503 n.15 (4th Cir. 2006) ("[B]ecause other subsec-
tions—not at issue here—of § 552a(g) require a claimant to ‘substantially
prevail’ before a fee award is appropriate, it is implausible to assume that
Congress accidentally omitted the ‘substantially prevail’ language from
subsection 552a(g)(4)(B).") (citations omitted). We also find unpersuasive
the CMRS Providers’ reliance on In re Griffith, 206 F.3d 1389 (11th Cir.
2000), for the proposition that "[w]here Congress knows how to say some-
thing but chooses not to, its silence is controlling." 206 F.3d at 1394
(internal quotation marks omitted).

Appeal: 10-2221 Document: 89 Date Filed: 03/15/2012 Page: 43 of 45
NEW CINGULAR WIRELESS v. FINLEY
43
Section 251(f)(2) explicitly authorizes state commissions to
suspend or modify the requirement or requirements of
§ 251(b). Section 251(b)(5), in turn, imposes on all LECs
"[t]he duty to establish reciprocal compensation arrangements
for the transport and termination of telecommunications." In
order for a state commission to modify the requirement(s) of
this duty, the state commission must be authorized to modify
the requirements of § 252(d), which establishes the pricing
standards for reciprocal compensation arrangements. In other
words, § 252(d)(2)(A),28 which explicitly refers to
§ 251(b)(5), begins to fill in the more specific requirements of
the broad duty established in § 251(b)(5). Likewise, to effec-
tively modify the requirements of § 251(b)(5), the state com-
mission must be authorized to modify the requirements of the
regulations implementing § 252(d)(2). The specific require-
ments developed in § 252(d)(2)(A) and the FCC regulations
fill in what is otherwise a vague duty broadly established in
§ 251(b)(5). The ability to modify the application of the
requirement(s) of § 251(b)(5) must therefore include the abil-
ity to modify the TELRIC pricing requirements for the RLECs.29
28Section 252(d)(2)(A) provides:
For the purposes of compliance by an incumbent local
exchange carrier with section 251(b)(5) of this title, a State com-
mission shall not consider the terms and conditions for reciprocal
compensation to be just and reasonable unless—
(i) such terms and conditions provide for the mutual and recip-
rocal recovery by each carrier of costs associated with the trans-
port and termination on each carrier’s network facilities of calls
that originate on the network facilities of the other carrier; and
(ii) such terms and conditions determine such costs on the
basis of a reasonable approximation of the additional costs of ter-
minating such calls.
29Indeed, this is plain from the language of § 251(f)(2) itself, which
includes both "suspend" and "modify." As the NCUC explained in the
modification order, "[t]he power to modify a reciprocal compensation obli-
gation necessarily implies a power to suspend a TELRIC rate calculation
requirement for good cause shown, given that the relevant statute autho-
rizes both suspension and modification." J.A. 53-54.

Appeal: 10-2221 Document: 89 Date Filed: 03/15/2012 Page: 44 of 45
44
NEW CINGULAR WIRELESS v. FINLEY
Although fatal neither to its ruling nor to our independent
analysis, the district court perhaps too quickly relied on the
FCC’s Local Competition Order in reaching its conclusion. In
the Local Competition Order, the FCC noted that "certain . . .
small incumbent LECs may seek relief from their state com-
missions from our rules under section 251(f)(2)." 11 F.C.C.
Rcd. at 16026 ¶ 1059. The district court read this as an "ex-
plicit[ ] recogni[tion]" by the FCC "that the general rule
requiring rates to be established based on TELRIC studies is
subject to an exception for small and rural LECs." New
Cingular Wireless
, 2010 WL 3860384, at *14. Thus, the dis-
trict court concluded that "the Local Competition Order
leaves no doubt that the FCC intended state commissions to
have the authority to modify the TELRIC pricing require-
ments for RLECs." Id.
We agree with the FCC that the Local Competition Order
does not so clearly support the specific proposition here. Cf.
FCC Br. 9 (explaining that it does not read the same text as
"clearly interpreting" § 251(f)(2) to allow the NCUC to sus-
pend or modify the TELRIC pricing requirements). The para-
graph from which the quoted text is drawn neither mentions
§ 252(d)(2) nor the TELRIC pricing requirements specifi-
cally. Moreover, because the FCC failed specifically to refer
to its pricing rules when describing § 251(f)(2), we might
conclude that the FCC’s reference to § 251(f)(2) was only "a
general description of the statutory remedies available to
The CMRS Providers’ construction, which would require the rates of
compensation to "comport" with § 252(d)(2)(A) whenever the duty to
establish reciprocal compensation under § 251(b)(5) is in effect is
unsustainable. CMRS Providers’ Br. 58. It would leave the RLECs "with
a draconian choice—they could either not enter into reciprocal compensa-
tion arrangements with the CMRS Providers, and thus receive no compen-
sation for terminating cell phone traffic on their network, or they could
perform expensive and time consuming TELRIC cost studies despite the
Act’s plain language permitting modification of FCC regulations."
NCUC’s Br. 55.

Appeal: 10-2221 Document: 89 Date Filed: 03/15/2012 Page: 45 of 45
NEW CINGULAR WIRELESS v. FINLEY
45
small incumbent LECs, not a specific finding that state com-
missions may suspend or modify the Act’s pricing require-
ments." Id.; see also Local Competition Order, 11 F.C.C.
Rcd. at 16118 ¶ 1263 ("declin[ing] . . . to adopt national rules
or guidelines" as to the specific implementation of § 251(f) as
the FCC "may offer guidance on these matters at a later date,
if . . . necessary and appropriate").30 We believe, however,
that the Local Competition Order lends some guidance.
All that said, we are confident that our construction is con-
sistent with the purpose of the Act. Indeed, we think it mani-
fest that the NCUC’s conclusion is consistent with the Act’s
concerns for small ILECs. Furthermore, we are satisfied that
allowing the NCUC to modify the pricing standards of
§ 252(d)(2)(A) furthers, rather than thwarts, the overriding
goal of removing economic barriers to competition within the
telecommunications industry. Cf. Local Competition Order,
11 F.C.C. Rcd. at 15505-06 ¶¶ 1, 3. We reject the exaggerated
fears advanced by the CMRS Providers.
Thus, we find that the NCUC has authority under
§ 251(f)(2) to modify the TELRIC guidelines for the RLECs.
VI.
For the reasons set forth above, the judgment of the district
court is
AFFIRMED.
30We are hesitant to rely on the cases cited by the Appellees. Iowa Utils.
Bd. v. FCC, 219 F.3d 744, 759-61 (8th Cir. 2000), rev’d in part on other
grounds sub nom. Verizon Commc’ns, Inc. v. FCC
, 535 U.S. 467 (2002),
and Verizon Commc’ns, Inc. v. FCC, 535 U.S. 467, 528 n.39 (2002), did
not address the precise issue here. See also RLECs’ Br. 54 ("While [Iowa
Utils. Bd.
] more directly concerned the Section 251(f)(1) rural exemption
rather than the Section 251(f)(2) modification and suspension authority for
two percent ILECs . . . .").

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