Bell Atlantic-Delaware v. Global Naps South
| Decision Date | 14 December 1999 |
| Docket Number | No. CIV. A. 99-466-RRM.,CIV. A. 99-466-RRM. |
| Citation | 77 F.Supp.2d 492 |
| Parties | BELL ATLANTIC-DELAWARE, INC., Plaintiff, United States of America, Intervenor, v. GLOBAL NAPS SOUTH, INC.; the Delaware Public Service Commission; Robert J. McMahon; Joshua M. Twilley; Arnetta McRae; Donald J. Puglisi; and John R. McClelland, Defendants, AT & T Communications Of Delaware, Inc., Intervenor. |
| Court | U.S. District Court — District of Delaware |
William E. Manning, Bonnie L. Metz, Duane, Morris & Heckscher LLP, Wilmington, DE, David A. Hill, Bell-Atlantic Delaware, Inc., Wilmington, DE, Mark L. Evans, Sean A. Lev, Antonia M. Apps, Kellogg, Huber, Hansen, Todd & Evans, P.L.L.C., Washington, DC, for plaintiff.
Carl Schnee, United States Attorney, Donald Remy, Acting Assistant Attorney General, Virginia Gibson-Mason, Assistant United States Attorney, United States Attorney's Office, Wilmington, DE, Theodore C. Hirt, David T. Zaring, U.S. Department of Justice, Federal Programs Branch, Washington, DC, for Intervenor United States of America.
Wendie C. Stabler, Scott J. Jensen, Saul, Ewing, Remick & Saul, LLP, Wilmington, DE, Christopher W. Savage, Geoffrey C. Cook, Cole, Raywid & Braverman, L.L.P., Washington, DC, William J. Rooney, Jr., Global NAPs South, Inc. Quincy, Massachusetts, for defendant Global Naps South, Inc.
Francis J. Murphy, Jonathan L. Parshall, Murphy Spadaro & Landon, Wilmington, DE, for defendant Delaware Public Service Commission.
Jeffrey M. Weiner, Law Offices of Jeffrey M. Weiner, Wilmington, DE, Mark A. Keffer, Michael A. McRae, AT & T Communications, Oakton, VA, David M. Levy, David L. Lawson, Michael L. Post, Sidley & Austin, Washington, DC, for intervenor AT & T Communications of Delaware, Inc.
This is a telecommunications case. Plaintiff Bell Atlantic-Delaware ("BA-Del") is a Delaware corporation that provides telecommunications services. Defendant Global NAPs South, Inc. ("GNAPs") is also a telecommunications company. It is a Virginia corporation with its principal place of business in Quincy, Massachusetts. Defendant Delaware Public Service Commission ("PSC") is a regulatory agency created and existing under the laws of Delaware. It has jurisdiction over the intrastate activities of telecommunications companies operating in Delaware, and is headquartered in Dover. Other listed defendants are commissioners of the PSC.
Intervenor AT & T Communications of Delaware, Inc. is a Delaware corporation that provides telecommunications services. Intervenor Federal Communications Commission is a regulatory agency created and existing under the laws of the United States.
BA-Del has invoked the jurisdiction of this court to review the decision of the PSC to approve an arbitration award establishing an interconnection agreement between BA-Del and GNAPs. 47 U.S.C. § 252(e)(6).1 BA-Del contends that the PSC improperly permitted GNAPs to opt into an existing agreement, and that the terms imposed by the PSC contradict the requirements of federal law. 47 U.S.C. § 251.
The court draws the following facts from the complaint, the answer, the affidavits submitted by the parties, and the record of the proceedings before the Delaware PSC.
BA-Del has a monopoly over the provision of local telephone service in Delaware. BA-Del qualifies as an incumbent local exchange carrier (ILEC) under the Telecommunications Act of 1996, Pub.L. No. 104, 110 Stat. 56 (1996) (the "1996 Act"). The 1996 Act imposes certain obligations on incumbent carriers, such as BA-Del, to encourage competition in local telecommunications markets. One of those obligations is the duty of an incumbent carrier to "interconnect" its facilities with those of new entrants. See 47 U.S.C. § 251(c)(2).2 Interconnection allows subscribers to a new entrant's telecommunications service to make calls to, and receive calls from, subscribers to an incumbent's service.
GNAPs seeks to compete with BA-Del in a number of markets for intrastate and interstate telecommunications services in Delaware. One market GNAPs has pursued is offering Internet service providers (ISPs) dial-in connections to the public switched telephone network. GNAPs sought to enter into an interconnection agreement with BA-Del on July 2, 1998, pursuant to § 251(c) and § 252(a) of the 1996 Act. Section 252(a) authorizes parties to enter into interconnection agreements through voluntary negotiations, or through mediation at the State commission.3
By September 1998, GNAPs and BA-Del had yet to arrive at an agreement through voluntary negotiations. In an effort to obtain interim relief to provide telecommunications services before approval of a final interconnection agreement, GNAPs sought to opt into an existing interconnection agreement between BA-Del and another carrier, MFS Intelenet of Delaware, Inc. ("MFS"). The MFS agreement has a three-year duration with a termination date of July 1, 1999. Requesting carriers may opt into existing interconnection agreements pursuant to § 252(i) of the 1996 Act. The 1996 Act requires an incumbent to make available any interconnection service or network element provided under that agreement to any other carrier "upon the same terms and conditions as those provided in the agreement." 47 U.S.C. § 252(i).4
GNAPS and BA-Del did not reach an agreement regarding GNAPs' opt-in rights. On December 9, 1998, GNAPs filed a petition with the Delaware PSC pursuant to § 252(b) and § 252(i) to arbitrate the disputed terms of the proposed opt-in agreement. Section § 252(b) permits a requesting party to petition the State regulatory commission to arbitrate an interconnection agreement when voluntary negotiations between the parties have failed.5 GNAPs argued to the PSC that it is entitled to opt into the MFS agreement for a term of three years, without being bound by the July 1, 1999 termination date recited in the agreement.
On March 9, 1999, the PSC Arbitrator, G. Arthur Padmore, issued an Award which, among other things: (a) permitted GNAPs to opt into the MFS agreement; and (b) extended the termination date in the MFS agreement for GNAPs from July 1, 1999, to December 31, 1999.
On May 11, 1999, the PSC approved the interconnection agreement as interpreted in the Arbitration Award, thus rendering the agreement final. 47 U.S.C. § 252(e)(1).6 On June 22, 1999, the PSC issued additional findings, which substantially adopted the reasoning of the Arbitrator.
On July 21, 1999, BA-Del filed a complaint in this court seeking relief from the PSC ruling. The complaint states three counts. Count I states that the "PSC's decision that GNAPs was entitled to `opt in' to the MFS Agreement with a six-month extension of the termination date violates the 1996 Act and the FCC's rules implementing the 1996 Act, is arbitrary and capricious, and is not the result of reasoned decision making." Counts II and III contest the legality of specific terms of the agreement. BA-Del requests that this court enter an order declaring that the PSC's decision is unlawful; enjoining the defendants from seeking to enforce that unlawful decision; and granting BA-Del such further relief as the Court may deem just and equitable.
The complaint states that the court has jurisdiction over the present matter pursuant to the judicial review provision of the Telecommunications Act of 1996, 47 U.S.C. § 252(e)(6), and pursuant to 28 U.S.C. § 1331.7
On August 12, 1999, GNAPs filed its answer, in which it asserted three affirmative defenses: 1) that the complaint fails to set forth a claim upon which relief may be granted; 2) that plaintiff's claims are barred by waiver and/or estoppel; and 3) that the actions of defendants are not unlawful in that they have complied with all applicable statutes and regulations.
On August 19, 1999, the PSC filed a motion to dismiss the action on the grounds that state sovereign immunity prohibits BA-Del from maintaining the present action, and that BA-Del's claims for relief are not ripe for decision.
On August 20, 1999, BA-Del filed a motion for summary judgment on all claims set forth in its complaint.
On August 26, 1999, the PSC filed a motion to stay briefing of BA-Del's motion for summary judgment pending disposition of the PSC's motion to dismiss.
On August 27, 1999, AT & T filed a motion to intervene in opposition to plaintiff's complaint for declaratory and injunctive relief. AT & T filed therewith an answer to BA-Del's complaint.
On August 31, the court participated in a teleconference with the parties and discussed the PSC's motion to stay briefing on the merits pending resolution of the eleventh amendment issue. The court instructed the parties to complete briefing the merits of the case so that the court could better understand the context of the sovereign immunity dispute.
On September 2, 1999, the PSC filed a motion to stay all proceedings except those related to the PSC's pending motion to dismiss.
On September 27, 1999, GNAPs filed a motion for summary judgment for all affirmative defenses set forth in its answer.
On September 27, 1999, the United States filed an unopposed motion to intervene in opposition to the PSC's motion to dismiss. The court granted the motion to intervene on September 30, 1999.
This is the court's ruling on the motions.
The PSC filed two motions to stay proceedings in this litigation pending resolution of the PSC's motion to dismiss on eleventh amendment grounds. The PSC argues, in particular, that it should not be required to submit briefing on the merits of the case pending resolution of the sovereign immunity issue. In a conference call, the court directed the parties to complete briefing on the merits because of the following reasons.
The present dispute does not require additional...
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