Union Telephone Co. v. Qwest Corp.

Decision Date27 July 2007
Docket NumberNo. 06-8012.,06-8012.
Citation495 F.3d 1187
PartiesUNION TELEPHONE COMPANY, a Wyoming corporation, Plaintiff-Appellant, v. QWEST CORPORATION, a Colorado corporation f/k/a U.S. West Communications, Inc., Defendant-Appellee.
CourtU.S. Court of Appeals — Tenth Circuit

Bruce S. Asay, Associated Legal Group, LLC, Cheyenne, WY, for Plaintiff-Appellant.

Steven J. Perfrement, Holme, Roberts, & Owen LLP, Denver, CO, (Roy E. Hoffinger, Musgrave, & Theis, LLP, Denver, CO, and Paul Hickey, Hickey & Evans, LLP, Cheyenne, WY, with him on the briefs), for Defendant-Appellee.

Before LUCERO, ANDERSON, and McCONNELL, Circuit Judges.

LUCERO, Circuit Judge.

Union Telephone Company ("Union") brought suit against Qwest Corporation ("Qwest") seeking compensation for telecommunication services provided by Union to Qwest. The district court granted summary judgment in favor of Qwest, and Union now appeals. Because Union has failed to present a valid agreement or tariff that could serve as the basis for its claims for compensation, we AFFIRM.

I

Union is a telecommunications company operating primarily in Wyoming, with some customers in Colorado and Utah. Its activities are subject to the Telecommunications Act of 1996 ("1996 Act"), 47 U.S.C. §§ 153, et seq., as a telecommunications carrier, and, more specifically, an incumbent local exchange carrier ("ILEC").1 As an ILEC, it provides wireline local and long distance services2 to approximately 7000 customers, 6300 of whom are located in Wyoming. Union is also a wireless provider, servicing approximately 40,000 wireless subscribers, 30,000 of whom are located in Wyoming.

Qwest is a wireline telecommunications carrier and an ILEC, providing local and intraLATA service3 in 14 western states, including Wyoming, Colorado, and Utah. Importantly for this appeal, it also provides "transit" services to other carriers in this region, meaning that other telecommunications companies may send calls over Qwest's network pursuant to agreements that must be approved by the appropriate state public utilities commission ("PUC"). When a Qwest customer places a call to a telephone user who subscribes to another LEC, such as Union, Qwest routes the call to that LEC's network for "termination," or completion. Some of the calls Qwest sends to Union are "originated," or placed, by Qwest customers, and some are originated by customers of other carriers and transited over the Qwest network.

Because this case concerns both wireless and wireline telephone calls, a brief summary of the regulatory framework is necessary. Wireless service has been largely deregulated at the state level but remains subject to FCC regulation. See 47 U.S.C. § 332(c). State PUCs regulate local and intrastate wireline traffic, and the FCC sets the rules for interstate wireline traffic. Both wireless and wireline calls may be either local or long distance.4 Compensation for local calls that originate and terminate with different carriers is determined by reciprocal compensation agreements. Long distance calls, that is, calls crossing from one calling area into another, incur a toll, and the originating carrier must compensate the terminating carrier for terminating the call.5 For wireline services, this toll is called a terminating access charge, and rates are based on filed tariffs. Significantly, these tariffs apply only to long distance service. For toll calls traveling between local calling areas within the same state, or intrastate traffic, state PUCS must approve a LEC's proposed tariff. By contrast, interstate long distance service is subject to FCC regulation.

Union and Qwest share a contentious history, having litigated various aspects of their relationship for over a decade. This litigation involves a complaint filed by Union in 2000 with the Wyoming Public Services Commission against U.S. West Communications, Inc. ("U.S.West"), Qwest's predecessor. Union claimed that the interconnection technology U.S. West used to send traffic to Union's network did not allow Union to identify and properly bill the originating carrier. Union also claimed that U.S. West refused to compensate it for toll traffic sent to its network, despite the existence of allegedly applicable Union tariffs, and on these claims requested an order from the Commission, directing U.S. West to pay terminating access charges for all toll traffic routed to Union by U.S. West, regardless of which carrier originated the call.

U.S. West merged with Qwest, and thereafter both Union and Qwest submitted pre-filed testimony and presented witnesses at an evidentiary hearing before the Commission. Most of the testimony related to the interconnection technologies Qwest used to deliver toll traffic. However, the commissioners also inquired into Union's claim that Qwest was responsible for paying terminating access fees for all Qwest to Union traffic, regardless of where the call originated. On January 24, 2001, the Commission issued an order dismissing the vast majority of Union's claims. It found that "Union [had] cited no authority that the `filed rate doctrine' applies to this case" with respect to Qwest's alleged duty to pay termination fees at Union's tariff rates.

Rather than seek reconsideration or judicial review of the Commission's decision, Union filed a complaint in federal court, asserting four claims against Qwest: (1) breach of tariff, (2) breach of contract, (3) discrimination by a common carrier, and (4) quantum meruit or unjust enrichment. These claims relate to two main categories of calls: (1) wireless traffic originated by Qwest and transported or terminated by Union in Wyoming, Colorado, and Utah, and (2) wireline, intrastate, long distance traffic transiting Qwest's network, originated by a third party and sent through Qwest's network for termination by Union in Wyoming, Colorado, and Utah. Wireless calls make up the bulk of the traffic at issue. The district court granted Qwest's motion for summary judgment, dismissing all of Union's claims except for the breach of tariff and contract claims with respect to wireline traffic terminating in Colorado and Utah.6

Union now appeals the district court's grant of summary judgment.

II

We review a district court's grant of summary judgment de novo, "applying the same legal standard used by the district court." Harrison v. Wahatoyas, L.L.C., 253 F.3d 552, 557 (10th Cir.2001). Summary judgment is only appropriate if the evidence shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

III

Union's breach of tariff and contract claims arise with respect to a number of distinct types of traffic. We consider first its wireless traffic claims, which consist of: intraMTA calls; interMTA, intrastate calls; and interMTA, interstate calls. We then consider wireline calls, which on appeal are comprised solely of calls terminated in Wyoming.

A

Pursuant to the 1996 Act, all LECs have a duty to "establish reciprocal compensation arrangements for the transport and termination of telecommunications." 47 U.S.C. § 251(b)(5). Compensation for terminating intraMTA, or local, wireless calls is determined by rates in these interconnection agreements and not by access charges contained in filed tariffs. Local Competition, 11 F.C.C.R at 116014. As the Local Competition Order makes clear, these federal regulations bar Union from applying tariff-based access charges to intraMTA wireless traffic. Despite this fact, Union argues that it may apply its state tariffs to intraMTA wireless traffic based on a 2005 FCC decision, Developing a Unified Intercarrier Compensation Regime, 20 F.C.C.R. 4855 (2005). In that decision, the FCC addressed traffic sent from a commercial mobile radio services ("CMRS") provider to an ILEC. See id. at 4862. In the present case, acting as an ILEC, Qwest routes calls to Union for wireless termination. In other words, this case considers ILEC to CMRS traffic, the opposite of the situation in Developing. This distinction is important, because until Developing an ILEC could not compel a CMRS provider to negotiate a reciprocal compensation agreement. See id. at 4863 n. 54. Thus, tariffs were the only compensation mechanism for an ILEC terminating calls from an uncooperative CMRS provider. Given that Union is now empowered to compel Qwest to negotiate an interconnection agreement under 47 U.S.C. § 252, it can neither avail itself of Developing's stop-gap tariff allowance, because its state tariffs are inapplicable to this type of traffic, nor demand, absent a negotiated agreement, compensation for intraMTA traffic under a theory of breach of contract.

Most traffic at issue in the case before us is intraMTA, but we also consider a small amount of interMTA traffic. Union has duly filed tariffs in Wyoming, Colorado, and Utah, listing its wireline terminating access charges, which it contends should apply to wireless traffic as well. Qwest argues that Union has failed to show either that the filed tariffs apply to wireless traffic or that Union has properly filed rates for wireless services.

Under the filed rate doctrine, "the rate of the carrier duly filed is the only lawful charge, and deviation from it is not permitted." Qwest Corp. v. AT & T Corp., 479 F.3d 1206, 1210 (10th Cir.2007) (quotation and alteration omitted). Duly filed rates bind both carriers and customers with the force of law. Atchison, Topeka & Santa Fe Ry. Co. v. Bouziden, 307 F.2d 230, 234 (10th Cir.1962). Rights and liabilities defined by the tariff "cannot be varied or enlarged by either contract or tort of the carrier." Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 227, 118 S.Ct. 1956, 141 L.Ed.2d 222 (1998).

As previously noted, these parties share a long and litigious history, consequently, it is not entirely surprising that this issue has already been litigated. In U.S. West Communications, Inc. v. Wyoming Public...

To continue reading

Request your trial
23 cases
  • Vanguard Operating, LLC v. Sublette Cnty. Treasurer (In re Vanguard Nat. Res., LLC)
    • United States
    • U.S. Bankruptcy Court — Southern District of Texas
    • January 21, 2021
    ...is an equitable doctrine that "implies a contract so that one party may recover damages from another." Union Telephone Co. v. Qwest Corp., 495 F.3d 1187, 1197 (10th Cir. 2007). To prevail on a claim of unjust enrichment, a plaintiff must prove that: "(1) valuable services were rendered; (2)......
  • CallerID4u, Inc. v. MCI Commc'ns Servs. Inc.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 22, 2018
    ...state law equitable claims instead.The Tenth Circuit reached a similar conclusion in an analogous case. See Union Tel. Co. v. Qwest Corp. , 495 F.3d 1187, 1197 (10th Cir. 2007). In Union Telephone , the Tenth Circuit considered whether the plaintiff, a telecommunications provider that was r......
  • Mich. Elec. Transmission Co. v. Midland Cogeneration Venture, Ltd. P'ship
    • United States
    • U.S. District Court — Eastern District of Michigan
    • August 25, 2010
    ...rate doctrine may also preclude a utility from seeking recovery when there is no contract on file. See, e.g., Union Tel. Co. v. Qwest Corp., 495 F.3d 1187, 1193 (10th Cir.2007) (finding that the plaintiff's failure to file tariffs for wireless services barred its state law claims); BP W. Co......
  • Carbajal v. Serra
    • United States
    • U.S. District Court — District of Colorado
    • August 29, 2012
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT