Bellsouth Telecommc'ns Inc. D/b/a At&t North Carolina v. Finley
| Decision Date | 10 December 2010 |
| Docket Number | No. 5:09-CV-517-BR,5:09-CV-517-BR |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | BELLSOUTH TELECOMMUNICATIONS, INC. d/b/a AT&T North Carolina, Plaintiff, v. EDWARD S. FINLEY, JR., CHAIRMAN; LORINZO L. JOYNER,COMMISSIONER; and WILLIAM T. CULPEPPER, III, COMMISSIONER, in their official capacities and not as individuals, and INTRADO COMMUNICATIONS, INC., Defendants. |
This matter is before the court on cross-motions for summary judgment by all parties. The motions have been fully briefed and are ripe for disposition.
Plaintiff BellSouth Telecommunications, Inc. d/b/a AT&T North Carolina ("AT&T") is an incumbent local exchange carrier ("ILEC") in its authorized service territories in North Carolina. Compl. ¶ 9. Defendant Intrado Communications, Inc. ("Intrado") is certified by the North Carolina Utilities Commission ("NCUC") as a competing local provider in North Carolina. Id. ¶ 12; Intrado's Answer ¶ 12. The remaining defendants are Commissioners of the NCUC and are being sued in their official capacities for declaratory and injunctive relief only. Compl. ¶ 10-11.
At issue here is Intrado's provision of "Intelligent Emergency Network" service ("911service"), 1 which is a service that is solely related to 911 emergency telephone calls. Mem. Supp. Intrado's Mot. Summ. J. at 3; Br. Supp. AT&T's Mot. Summ. J. at 3. When an individual ("end user") makes a 911 call, the call is directed to a Public Safety Answering Point ("PSAP"), 2which most people think of as the 911 operator. Each PSAP serves a defined geographic territory. PSAPs need to obtain service from a 911 system service provider in order to have 911 calls directed and delivered to them. AT&T has traditionally served as the 911 system service provider for PSAPs that handle 911 calls from end users in AT&T's service territory. Intrado is seeking to replace AT&T as the 911 system service provider for those PSAPs in North Carolina. To do that, Intrado needs to interconnect with AT&T so that it can receive 911 calls originated by AT&T's end users and then deliver them to Intrado's PSAP customers. Intrado's Arbitration Pet., DE # 25-1 at 3-7; Br. Supp. AT&T's Mot. Summ. J. at 3.
In 2007, Intrado formally requested interconnection with AT&T. Mem. Supp. Intrado's Mot. Summ. J. at 7. On 21 December 2007, when certain issues remained unresolved, Intrado filed a petition for arbitration with the NCUC pursuant to § 252 of the Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C. § 151 etseq. ("the Act"). Id. at n.10; Compl. ¶ 18. After an evidentiary hearing on 13 August 2008, the NCUC issued a Recommended Arbitration Order ("RAO") on 24 April 2009. Compl. ¶¶ 20-21. The parties filed objections, and the NCUC issued a final order on 10 September 2009 ("Arbitration Order"), whereby the NCUC ruled on the objections and directed the parties to file interconnection agreements in accordance with the NCUC's rulings. Id. ¶¶ 22, 25. The parties filed their conforming interconnection agreements on 19 October 2009, and the NCUC approved the agreements by order dated 2 November 2009. Id. ¶ 26; see also Intrado's Composite Agreement, DE # 25-76; AT&T's Composite Agreement, DE # 25-79; Order Approving Composite Agreement, DE # 25-83.
AT&T filed this action on 2 December 2009 pursuant to § 252(e)(6) of the Act to request review of the NCUC's determination that Intrado's 911 service qualifies as "telephone exchange service" under the Act. Compl. ¶¶ 1-2. AT&T seeks declaratory and injunctive relief. Id. at 9 (Prayer for Relief).
AT&T, Intrado, and the NCUC all filed cross-motions for summary judgment on 26 April 2010.3
Under the... Act, the court is to "determine whether a state utility commission's arbitration decision 'meets the requirements' of [sections] 251 and 252 of the Act." GTE S., Inc. v. Morrison, 199 F.3d 733, 742 (4th Cir. 1999) (quoting 47 U.S.C. § 252(e)(6)). The Act, however, contains no particular standard of review. Id. at 745. In GTE South, the Fourth Circuit discussed a state commission's telecommunications arbitration decision and held that, "[a]bsent a statutory command, general standards of judicial review of agency action apply."
Id. ." Id.; see BellSouth Telecomms., Inc. v. Sanford, 494 F.3d 439, 447-48 (4th Cir. 2007). As for factual findings, the GTE S., Inc., 199 F.3d at 745. Rather, a state commission's findings of fact are reviewed under the substantial evidence standard. Id. The Fourth Circuit has described the substantial evidence standard as follows:
[S]ubstantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. While substantial evidence is more than a scintilla, it is also less than a preponderance. 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.
AT & T Wireless PCS, Inc. v. City Council of Va. Beach, 155 F.3d 423, 430 (4th Cir. 1998) (quotations omitted) (citations omitted).
Time Warner Cable Info. Servs. (N.C.), LLC v. Duncan, 656 F. Supp. 2d 565, 574-75 (E.D.N.C. 2009) (some alterations in original).4
Intrado argues that AT&T has a duty to interconnect pursuant to 47 U.S.C. § 251(c)(2), so that Intrado can provide its 911 service in areas where AT&T provides local exchange services. Under this section of the Act, an ILEC, such as AT&T, has the duty to interconnect with a requesting telecommunications carrier "for the transmission and routing of telephone exchange service and exchange access." 47 U.S.C. § 251(c)(2)(A).5 Here, the parties agree thatthere is only one issue to be resolved in this action, which is whether Intrado's 911 service constitutes "telephone exchange service" as defined in the Act.6 If Intrado's 911 service does not qualify as telephone exchange service, then AT&T has no duty to interconnect with Intrado under the Act.
The Act defines "telephone exchange service" as follows:
The term "telephone exchange service" means (A) service within a telephone exchange, or within a connected system of telephone exchanges within the same exchange area operated to furnish to subscribers intercommunicating service of the character ordinarily furnished by a single exchange, and which is covered by the exchange service charge, or (B) comparable service provided through a system of switches, transmission equipment, or other facilities (or combination thereof) by which a subscriber can originate and terminate a telecommunications service.
47 U.S.C. § 153(47).
Because 47 U.S.C. § 153(47) provides two different meanings of the term "telephone exchange service" joined by the word "or, " Intrado's 911 service constitutes telephone exchange service if it meets the requirements of either part of the definition. The NCUC found that Intrado's 911 service satisfies both part (A) and part (B) of the definition of telephone exchange service. As a result, the NCUC held that AT&T has a duty to interconnect with Intrado under § 251(c)(2) of the Act.
AT&T maintains that Intrado's 911 service does not meet the requirements for either part of the definition of the term "telephone exchange service." The court initially notes that several state utility commissions have ruled on the same issue that is before the court in this case, and the results have been split.7
The court will first address the issue of whether Intrado's 911 service constitutes telephone exchange service under 47 U.S.C. § 153(47)(A). AT&T argues that Intrado's 911 service does not permit intercommunication as required under this section of the Act. The term "intercommunicating service, " which is found in 47 U.S.C. § 153(47)(A), is not defined in the Act, and the parties do not dispute this. See Br. Supp. AT&T's Mot. Summ. J. at 14; Mem. Supp. Intrado's Mot. Summ. J. at 16; Mem. Supp. NCUC's Mot. Summ. J. at 10.
In ruling on this issue, the NCUC agreed with the reasoning set forth by the Ohio Public Utilities Commission ("PUC") in a similar proceeding. The Ohio PUC " RAO at 13 (quoting In re Intrado Commc'ns Inc., No. 07-1280-TP-ARB, 2009 WL 585861, at *12 (Ohio Pub. Utils. Comm'n Mar. 4, 2009)). The NCUC also stated that "[i]n construing 47 U.S.C. 153(47), it is important to note that the [Federal Communications Commission ("FCC")] has been expansive in its definition of telephone exchange services." Id. at 12; see also In the Matter of Deployment of Wireline Services Offering Advanced Telecommunications Capability, 15 FCC Rcd. 385, 394-95 ¶ 21 (1999) ("Advanced Services Order"). The NCUC further asserted:
[T]he FCC has even gone so far as to require local exchange companies "to provide access to 911 databases and interconnection to 911 facilities to all telecommunications carriers, pursuant to sections 251(a) and (c) and section 271(c)(2)(B)(vii) of the Act." The FCC continued: "We expect that this would include all the elements necessary for telecommunications carriers to provide 911/E911 solutions...."
RAO at 12 (quoting In re IP-Enabled Servs. & E911 Requirements for IP-Enabled Serv. Providers, 20 FCC Rcd. 10245, 10267-68 ¶ 38 (2005)). As a result, the NCUC determined that the statutory language of 47 U.S.C. § 153(47) "should be given a liberal interpretation that furthers the purpose of telecommunications competition." Id.
The factor of intercommunication is important...
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