Global Naps v. New England Telephone & Telegraph

• Decision Date: 27 August 2002
• Docket Number: CIV.A.00-11513-RCL.,No. CIV.A.00-10407-RCL #.,CIV.A.00-10407-RCL #.
• Citation: 226 F.Supp.2d 279
• Parties: GLOBAL NAPS, INC. and MCI Worldcom Communications, Inc. Plaintiffs, v. NEW ENGLAND TELEPHONE & TELEGRAPH CO. D/B/A Verizon-Massachusetts, and Commonwealth of Massachusetts Department of Telecommunications and Energy and James Connelly, W. Robert Keating, Paul B. Vasington, Deidre K. Manning, Commissioners of the Commonwealth of Massachusetts Department of Telecommunications and Energy in their official capacity, Defendants.
• Court: U.S. District Court — District of Massachusetts

Page 279

226 F.Supp.2d 279

GLOBAL NAPS, INC. and MCI Worldcom Communications, Inc. Plaintiffs, v. NEW ENGLAND TELEPHONE & TELEGRAPH CO. D/B/A Verizon-Massachusetts, and Commonwealth of Massachusetts Department of Telecommunications and Energy and James Connelly, W. Robert Keating, Paul B. Vasington, Deidre K. Manning, Commissioners of the Commonwealth of Massachusetts Department of Telecommunications and Energy in their official capacity, Defendants.

No. CIV.A.00-10407-RCL #.

CIV.A.00-11513-RCL.

United States District Court, D. Massachusetts.

August 27, 2002.

Cameron F. Kerry, Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., Boston, MA, John C. Ottenberg, Ottenberg & Dunkless LLP, Boston, MA, Alan D. Mandl, Mandl & Mandl LLP, Boston, MA, John R. Harrington, Darryl M, Bradford, Jenner & Block, LLC, Chicaho, IL, Swidler Berlin Shereff Friedman, LLP, Washington, DC, for Plaintiff.

Renee S. Orleans, Theodore C. Hirt, James D. Todd, Jr., U.S. Dept. of Justice Civil Div., Washington, DC, Nancy Rue, U.S. Atty's Office, Boston, MA, for U.S.

Daniel J. Hammond, Atty. General's Office, Boston, MA, for Mass. Dept. of Telecommunications and Energy, James Connelly.

MEMORANDUM ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

LINDSAY, District Judge.

Before the court is a motion of plaintiff, Global Naps Inc., for summary judgment or in the alternative for a preliminary injunction (Docket # 4) and a motion of plaintiff, MCI WorldCom Communications, for summary judgment (Docket # 25). The defendants, Verizon New England and Massachusetts Department of Telecommunication and Energy ("DTE") have filed cross motions for summary judgment (Docket # 39 and # 43 respectively). All of these motions were referred to Magistrate Judge Joyce London Alexander for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B).

Judge Alexander filed her report on July 5, 2001. Findings and Recommendations (Docket # 122). In it, she recommended that I grant both plaintiffs' motions for summary judgment and deny both defendants' cross motions for summary judgment. Such a ruling would have the effect of declaring that certain orders issued by the DTE in May 1999, July 2000, and August 2001 violate federal law, and that an order issued by the DTE in October 1998 does not violate federal law. Details concerning these orders are set out in Judge Alexander's very thorough report. Findings and Recommendations passim. Judge Alexander also recommended that I grant the motion for a preliminary injunction,

directing the DTE to undertake an analysis of the interconnection agreements to determine whether those agreements give rise to reciprocal compensation for ISP-bound traffic and that proscribes the DTE from enforcing the 1999 DTE Order, the 2000 DTE Order, and the 2001 DTE Order until such time as that analysis is complete.

Id. at 30. Both defendants have objected to the report and its recommendations.

After conducting a de novo review of the issues raised by the motion, I accept the report and recommendations in part. Thus, the motions for summary judgment of the plaintiffs, MCI WorldCom Communications and Global Naps are GRANTED to the extent that they seek a declaration under 47 U.S.C. § 252(e)(6) that the October 1998 DTE Order complied with federal law and the May 1999, July 2000, and August 2001 orders did not. In making this ruling, I expressly adopt the reasoning set forth by Judge Alexander in the Findings and Recommendations.

With respect to Judge Alexander's recommendation that I issue a preliminary injunction, I conclude that the plaintiffs have not made the requisite showing of irreparable harm. See Philip Morris Inc. v. Harshbarger, 159 F.3d 670, 673-74 (1st Cir.1998) (setting forth the four prong test to determine if an injunction should be issued). The harm claimed must be of "a substantial injury that is not accurately measurable or adequately compensable by money damages ...." Id. A preliminary injunction "is not warranted by a tenuous or overly speculative forecast of anticipated harm. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir.1996). The record here does not establish any such harm. Moreover, in light of my disposition of this matter, as set forth in the following paragraph, no injunction, as such, is necessary. Therefore, to the extent the Judge Alexander recommends that I issue a preliminary injunction, I respectfully reject the recommendation, and the motion for preliminary injunction is denied.

A district court's jurisdiction under § 252(e)(6) extends only to a determination of whether orders of a state utility commission like those at issue in this case comply with federal law. 47 U.S.C. § 252(e)(6); see generally Puerto Rico Telephone Co. v. Telecommunications Regulatory Bd. Puerto Rico, 189 F.3d 1 (1st Cir.1999). Accordingly, having made such a determination in this case, I remand these cases to the DTE for proceedings or deliberations not inconsistent with the rulings herein and with those parts of the Findings and Recommendations that explicate the reasons for granting summary judgment to the plaintiff's and denying summary judgment to the defendants.

SO ORDERED.

FINDINGS AND RECOMMENDATIONS ON THE MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, A PRELIMINARY INJUNCTION BY THE PLAINTIFF, GLOBAL NAPS, INC. (DOCKET # 4),

THE MOTION BY THE PLAINTIFF, MCI-WORLDCOM COMMUNICATIONS, INC., FOR SUMMARY JUDGMENT (DOCKET # 25),

THE CROSS-MOTION BY THE DEFENDANT, VERIZON NEW ENGLAND, FOR SUMMARY JUDGMENT IN ITS FAVOR AN IN OPPOSITION TO THE PLAINTIFFS' MOTIONS FOR SUMMARY JUDGMENT (DOCKET # 39),

THE CROSS-MOTION FOR SUMMARY JUDGMENT BY THE MASSACHUSETTS DEPARTMENT OF TELECOMMUNICATIONS AND ENERGY (Docket # 43)

AND

THE MOTION BY MCI WORLDCOM, INC. REQUESTING THAT THE COURT SET THE DATE FOR ORAL ARGUMENTS OR FOR STATUS CONFERENCE (DOCKET # 118)

ALEXANDER, United States Magistrate Judge.

Introduction

Civil Action No. 00-CV-10407-RCL, one of the two consolidated cases here, was initiated by the plaintiff, Global NAPs, Inc. ("Global NAPs"), against New England Telegraph and Telephone Company d/b/a Bell Atlantic-Massachusetts ("Verizon")¹ and the Massachusetts Department of Telecommunications and Energy ("DTE") and its Commissioners.² In its complaint, Global NAPs alleges that the DTE violated federal law in interpreting an interconnection agreement it entered with Verizon. Global NAPs now seeks judicial review of the DTE orders interpreting that agreement. More specifically, pursuant to Section 252(e)(6) of the Telecommunications Act of 1996 (the "Act"), Global NAPs requests that the District Court find that DTE Order 97-116-C (May 1999), which does not require Verizon to pay Global NAPs reciprocal compensation for telephone calls bound for the Internet³ via Internet Service Providers ("ISPs"),⁴ and subsequent DTE orders to the same effect, violate federal law. Global NAPs also requests that the court declare that a prior decision, DTE Order 97-116 (October 1998), which required Verizon to pay reciprocal compensation to Global NAPs for such calls, is valid.

A similar suit, Civil Action No. 00-CV-11513-RCL, in which the plaintiff MCI Worldcom Communications, Inc. ("MCI"), as the successor in interest to MFS Intelenet Service of Massachusetts, Inc., raises almost identical claims against Verizon, was consolidated with the Global NAPs litigation.⁵ The consolidated cases were referred to this Court by the District Court (Lindsay, J.) pursuant to 28 U.S.C. § 636(b)(1)(B) for purposes of preparing Findings and Recommendations on the motions for summary judgment previously filed by all parties, and on the request for injunctive relief by Global NAPs.

This Court previously issued its first Findings and Recommendations in this case. Therein, the Court held that to the extent that the motion for summary judgment by the DTE and its commissioners was based on claims of sovereign immunity pursuant to the Eleventh Amendment to the United States Constitution and the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the motion should be denied. The DTE filed a timely notice of objection, which was rejected by the District Court when it adopted this Court's Findings and Recommendations. No timely appeal of the District Court's order ensued.⁶

The Court now turns to the remainder of the motions for summary judgment. In its motion, MCI seeks the relief requested in its complaint:

1. Review of three orders issued by the DTE in May 1999, July 2000, and August 2001 and a declaration that those orders "are invalid and violate the [] Act";

2. An injunction to prohibit the DTE from enforcing those Orders;

3. An order setting aside the May 1999, July 2000, and August 2001 DTE Orders;

4. Reinstatement of an Order issued by DTE in October 1998 requiring Verizon to pay MCI reciprocal compensation for calls MCI carried to ISPs.

See MCI's First Amended Complaint for Declaratory, Injunctive and Other Relief, pp. 16-20; MCI's Motion for Summary Judgment, p. 5.

The motion for summary judgment by Global NAPs seeks similar relief. Global NAPs requests:

1. Declarations that DTE erred in the conclusions it sets forth in the May 1999 June 2000, and August 2001 DTE Orders and that those orders are vacated;

2. A declaration that the Order issued by DTE in October 1998 "remains in full force and effect";

3. A declaration that the DTE erred in failing to determine whether the interconnection agreement entered by the parties and an injunction directing the DTE to undertake such an analysis;

4. A declaration that if the DTE finds that reciprocal compensation is not due for ISP calls per the parties' interconnection agreement, that the DTE must establish an alternative compensation mechanism pending the development and implementation of national rules by the Federal Communications Commission ("FCC").

Amended Complaint of Global...