Voices for Choices v. Illinois Bell Telephone Co., 03-2735.
| Decision Date | 06 August 2003 |
| Docket Number | No. 03-2766.,No. 03-2735.,03-2735.,03-2766. |
| Citation | 339 F.3d 542 |
| Parties | VOICES FOR CHOICES, et al., Plaintiffs-Appellees, v. ILLINOIS BELL TELEPHONE CO., et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David W. Carpenter, Mark B. Blocker, Sidley, Austin, Brown & Wood, Chicago, IL, for Plaintiff-Appellee Voices for Choices, Inc.
Mark D. Schneider, Jenner & Block, Washington, DC, John R. Harrington, Jenner & Block, Chicago, IL, for Plaintiff-Appellee MCI Metro Access Transmission Services, Inc.
Mark B. Blocker, Sidley, Austin, Brown & Wood, Chicago, IL, for Plaintiffs-Appellees AT & T Communications of Illinois, Inc. and Association for Local Telecommunications Services.
Henry T. Kelly, Kelley, Drye & Warren, Chicago, IL, for Plaintiffs-Appellees Z-Tel Communications, Inc., CoreComm Illinois, Inc., Data Net Systems, L.L.C., TruComm Corp., Focal Communications Co. of Illinois, Inc.
Stephen M. Shapiro, Theodore A. Livingston, Mayer, Brown, Rowe & Maw, Chicago, IL, for Defendants-Appellants Illinois Bell Telephone Co. and Ameritech Corp.
Julian Solotorovsky, Kelley, Drye & Warren, Chicago, IL, Robert J. Kelter, Citizens Utility Board, Chicago, IL, Thomas H. Rowland, Rowland & Moore, Chicago, IL, Barry S. Alberts, Owen E. MacBride, Schiff, Hardin & Waite, Chicago, IL, for Intervenors-Appellees.
Stephen M. Shapiro, Theodore A. Livingston, Mayer, Brown, Rowe & Maw,
I have before me motions for leave to file amicus curiae briefs. Fed. R.App. P. 29. The status of the movants impels me to state publicly my reasons for denying the motions.
The defendants, telephone companies that do business in Illinois and that I shall refer to collectively as "SBC," appeal from the district court's ruling that portions of the Illinois Public Utilities Act are preempted by the provisions of the Federal Telecommunications Act of 1996 that require owners of telecommunications network infrastructure, like SBC, to grant access to their networks by competing carriers on "rates, terms, and conditions that are just, reasonable and nondiscriminatory." 47 U.S.C. § 251(c)(2)(D). The district court found that the Illinois statute conflicts with the federal act in two respects: The statute instructs the Illinois Commerce Commission to determine fill (the percentage of the network capacity that is being utilized), and depreciation costs on the basis of SBC's actual costs, ignoring the Federal Telecommunications Act's "hypothetical efficient provider" standard. And it amounts to "ratesetting," an activity that the federal act requires to be performed by state administrative bodies like the Illinois Commerce Commission rather than by the state legislature itself.
SBC's brief on appeal argues that the Federal Telecommunications Act does not deprive the state legislature of the power to adopt standards for rate setting, that the district court's ruling is contrary to the general principles governing preemption, that anyway the standards adopted by the legislature for fill and depreciation are consistent with federal pricing rules, and that the district court improperly substituted its own view for that of the Illinois legislature in concluding that the public interest would be disserved by the leasing rates that the Illinois statute would permit. The brief is long (58 pages) and comprehensive, despite which there are these two motions for leave to file amicus curiae briefs. The first, submitted jointly by Michael J. Madigan, Speaker of the Illinois House of Representatives, and Emil Jones, Jr., President of the Illinois Senate, claims that their proposed amicus curiae brief "presents the opportunity for the Court to consider certain issues from the viewpoint of state officials who play an instrumental role in establishing telecommunications policy for the States." The brief argues that the Federal Telecommunications Act preserves the legislature's plenary authority to set rate-making policy and that the district court failed to consider all the pertinent evidence in the record in concluding that the Illinois statute conflicts with the federal statute. The second brief is submitted by the Communications Workers of America, which represents more than half a million workers in the telecommunications industry, including employees of SBC. The union asserts that the Illinois statute was intended to remedy problems attributable to artificially low lease rates, including employee layoffs and decreased services to customers, that the legislature can adopt standards for rate setting without violating the Federal Telecommunications Act, and that the district court was mistaken to think that rates are to be set only in adjudicative proceedings before the Illinois Commerce Commission.
This court has held that whether to allow the filing of an amicus curiae brief is a matter of "judicial grace." National Organization for Women, Inc. v. Scheidler, 223 F.3d 615, 616 (7th Cir.2000). The judges of this court will therefore not grant rote permission to file such a brief, and in particular they will deny permission to file an amicus brief that essentially duplicates a party's brief. Id. at 617. The reasons for the policy are several: judges have heavy caseloads and therefore need to minimize extraneous reading; amicus briefs, often solicited by parties, may be used to make an end run around court-imposed limitations on the length of parties' briefs; the time and other resources required for the preparation and study of, and response to, amicus briefs drive up the cost of litigation; and the filing of an amicus brief is often an attempt to inject interest group politics into the federal appeals process. Id. at 616.
All this said, comity might seem to be a compelling reason to allow the filing of an amicus curiae brief by the leaders of a state legislature in an appeal concerning the validity of a statute of their state; and there is no doubt that a union has an interest in the regulatory regime for an employer of its members. It...
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