Opinion
Civil Action No. 02-12489-RWZ.
September 21, 2005
MEMORANDUM OF DECISION
In 1996, Congress passed the Telecommunications Act that, among other changes, opened the market for local telephone service. The Act required companies with historic control over local telephone service, known as incumbent local exchange carriers ("ILECs"), to negotiate interconnection agreements with competitive local exchange carriers ("CLECs"). Plaintiff Global NAPS, a CLEC, initiated such negotiation with defendant Verizon New England ("Verizon"), an ILEC, in January of 2001. Because these negotiations failed to produce contractual terms acceptable to plaintiff, it requested arbitration by defendant Massachusetts Department of Telecommunications and Energy ("DTE") in July of 2002, as permitted under the Act. DTE issued an Arbitration Order in December of 2002 with terms even less satisfactory to plaintiff. Immediately thereafter, plaintiff filed suit against Verizon and DTE seeking relief from the Arbitration Order. In early 2003, plaintiff attempted to resolve the situation by proposing alternate terms from another competitor's interconnection agreement with Verizon. Because Verizon opposed this proposal, DTE rejected it. Consequently, plaintiff filed a second suit challenging DTE's rejection order, and this second suit was consolidated with the earlier one.
This Court has already decided one round of summary judgment motions by all parties in which plaintiff unsuccessfully challenged the substance and binding nature of DTE's orders. In the instant motion for partial summary judgment, plaintiff tries a different approach to undermining DTE's orders by arguing that DTE lacked jurisdiction over the question of certain access charges for telephone calls to internet service providers ("ISPs"). In response, Verizon moves for partial summary judgment on the same issue. DTE joins Verizon's motion except to the degree that it argues for de novo review of DTE's legal conclusions or as regards the status of future or pending matters before DTE.
Federal law governing interconnection agreements requires DTE to "limit its consideration of any petition . . . to the issues set forth in the petition and in the response, if any. . . ." 47 U.S.C. § 252(b)(4)(A). Issues that directly relate to those raised in the petition and that both parties addressed may also be considered by DTE. See BellSouth Telecommunications, Inc. v. Cinergy Communications Co., 297 F. Supp. 2d 946, 951-952 (E.D. Ky. 2003). See also, MCI Telecommunications Corp. v. Michigan Bell Telephone Co., 79 F. Supp. 2d 768, 774 (E.D. Mich. 1999), and Global NAPS, Inc. v. Verizon New England Inc., 327 F. Supp.2d 290, 298 (D. Vt. 2004). Plaintiff contends that its petition for arbitration never raised the issue of intrastate access charges for interstate telephone traffic and, therefore, never authorized DTE to rule on the matter. This position is entirely at odds, however, with the fact that plaintiff's initial brief in support of its petition for arbitration by DTE specifically addressed, as two of four inter-carrier compensation issues, "whether Verizon can impose access transport charges on [plaintiff] when it utilizes [certain virtual codes for re-routing calls from one exchange to another]" and "whether Verizon can impose access charges for terminating [plaintiff's] local traffic. . . ." O'Malley Decl., Ex. D at 4.
Plaintiff also argues that a certain ruling (the "ISP Remand Order") by the Federal Communications Commission (the "FCC") in 2001 preempted review by state commissions of matters concerning inter-carrier compensation for telephone calls to ISPs. Naturally, Verizon argues to the contrary. Although "several states and state regulatory commissions complain that the order unlawfully preempts their authority to determine the compensation of ISP-serving [local exchange carriers]," the District of Columbia Circuit Court of Appeals questioned the legal support for the order. Worldcom, Inc. v. Federal Communications Commission, 288 F.3d 429, 432-434 (D.C. Cir. 2002). Whether the FCC preempted state commissions such as DTE from resolving compensation disputes regarding telephone traffic to ISPs remains unclear, but resolution of this complex issue is not necessary in order to decide the instant motions. As plaintiff voluntarily sought arbitration by DTE after the FCC issued the ISP Remand Order and thus impliedly consented to DTE's jurisdiction over its petition, it may not now challenge DTE's authority on the basis of unsettled law in order to avoid the consequences of its own business strategy.
Plaintiff voluntarily withdrew a separate argument for partial summary judgment alleging discriminatory treatment of its petition by DTE. See Pl.'s Reply in Supp. of Its Mot. for Summ. J. 4.
Accordingly, plaintiff's motion for partial summary judgment (#76 on the docket) is denied, and defendants' cross-motions for partial summary judgment (#81 and #83 on the docket) are allowed.