Pub. Serv. Tel. Co. v. the Ga. Pub. Serv. Comm'n

• Decision Date: 04 February 2010
• Docket Number: Civil Action File No. 1:08–CV–1438–CC,Civil Action File No. 1:08–CV–1437–CC
• Citation: 755 F.Supp.2d 1263
• Parties: PUBLIC SERVICE TELEPHONE COMPANY, Plaintiff,v.The GEORGIA PUBLIC SERVICE COMMISSION; et al., Defendants.Public Service Telephone Company, Plaintiff,v.The Georgia Public Service Commission; et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

755 F.Supp.2d 1263

PUBLIC SERVICE TELEPHONE COMPANY, Plaintiff,

v.The GEORGIA PUBLIC SERVICE COMMISSION; et al., Defendants.Public Service Telephone Company, Plaintiff,

v.The Georgia Public Service Commission; et al., Defendants.

Civil Action File Nos. 1:08–CV–1437–CC, 1:08–CV–1438–CC.

United States District Court, N.D. Georgia, Atlanta Division.

Feb. 4, 2010.

Benjamin H. Dickens, Blooston, Mordkofsky, Dickens, Duffy & Prendergast, Larry Craig Dowdy, McKenna Long & Aldridge, for Plaintiffs.Daniel S. Walsh, Office of State Attorney General, for The Georgia Public Service Commission and individual Commissioners.Stephen B. Rowell, Alltel Communications, LLC and Michael Singleton Reeves, Friend Hudak & Harris, LLP, for Alltel Communications, LLC.Elaine D. Critides, Verizon Wireless, Charles Frederick Palmer, Kevin Gregory Meeks, Troutman Sanders, LLP, for Verizon Wireless of the East LP.

ORDER

CLARENCE COOPER, District Judge.

These are related telecommunications cases in which Plaintiff Public Service Telephone Company (“PSTC” or “Plaintiff”) challenges orders issued by the Georgia Public Service Commission (the “Commission”) against PSTC in favor of Alltel Communications, LLC (“Alltel”) (Civil Action No. 1: 08–CV–1437–CC) and Verizon Wireless of the East LP (“Verizon Wireless” and, together with the Commission and Alltel, the “Defendants”) (Civil Action No. 1:08–CV–1438–CC). Before the Court is PSTC's request for injunctive relief pursuant to the Verified Complaints filed in both cases. For the reasons stated below, the Court rules in favor of Defendants in both cases.

I. BACKGROUND

Although PSTC's disputes with Alltel and Verizon Wireless are not identical, they do arise from similar facts and generally depend on the same provisions of law. In addition, the interconnection and reciprocal compensation agreements (the “interconnection agreements” or “ICAs”) that PSTC has entered into with Alltel and Verizon Wireless are the same.

PSTC is a local exchange carrier (“LEC”), as defined by 47 U.S.C. § 153(26), and an incumbent local exchange carrier (“ILEC”), as defined by 47 U.S.C. § 251(h). PSTC provides wireline telephone services to customers in seven exchanges (sometimes called “rate centers”) in certain counties of Georgia, including all or portions of Talbot, Taylor, Muscogee, Crawford, Macon, Marion, Monroe, Upson, and Bibb counties (its local exchange service area). All of PSTC's end offices are inside an Extended Area Service (“EAS”) area and, therefore, PSTC customers inside the PSTC network can call each other with local calls (i.e., without long distance or toll (1+) dialing and without incurring long distance or toll charges). PSTC and its customers have also delineated, with Commission approval, certain geographic areas outside PSTC's local exchange service area that can be dialed and completed as local calls. For example, PSTC customers in its Lizella and Roberta exchanges can call Macon, Georgia exchanges (served by a different ILEC, i.e., AT & T, formerly known as BellSouth Telecommunications) without incurring long distance charges. PSTC customers in Talbotton and Geneva can call Columbus, Georgia exchanges (also served by AT & T) without long distance charges. Therefore, depending on where PSTC customers' calls originate and terminate, the calls to other wireline carriers can be either local or toll.

Alltel and Verizon Wireless are licensed by the FCC as commercial mobile radio service (“CMRS”) carriers to provide wireless telephone service throughout most of Georgia, including in PSTC's local exchange service territory. The parties agree that PSTC's local exchange service area and the Macon and Columbus exchanges are within the same “Major Trading Area” (or “MTA”), as established by 47 C.F.R. § 24.202. 47 C.F.R. § 51.701 establishes that traffic exchanged between local exchange carriers (including incumbent local exchange carriers) and CMRS providers that originates and terminates within the same MTA is subject to the FCC's rules governing reciprocal compensation. See Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, 11 F.C.C.R. 15,499, at ¶ 1036, 1996 WL 452885 (August 8, 1996) (“traffic to or from a [wireless provider's] network that originates and terminates within the same MTA is subject to transport and termination rates under [47 U.S.C. § ] 251(b)(5), rather than interstate and intrastate access charges”).

A. The PSTC–Alltel Dispute

Prior to February 2005, PSTC, through its wireless affiliate, Public Service Cellular, provided wireless communication services. As part of its operations, Public Service Cellular established the 478–672 “NPA–NXX” code (i.e., the number block, containing the area code and the central office code, from which telephone numbers were assigned to the wireless subscribers) and “rated” this number block, for purposes of determining the jurisdiction of and compensation for calls to and from numbers assigned from the code, as local to PSTC's Roberta, Georgia rate center. Accordingly, at all times during PSTC's wireless operations, calls to the numbers assigned from the 478–672 code (the “478–672 numbers”) were dialed as local calls by any wireline customer in any PSTC exchange, regardless of the location of the wireless customer.

In February 2005, Alltel acquired PSTC's wireless operations, including the wireless subscribers assigned the 478–672 numbers. Following the acquisition, PSTC continued to treat calls from its subscribers to Alltel's 478–672 numbers as local calls, and no change was made to the rating of the 478–672 numbers as local to PSTC's local exchange service area. In addition, the parties continued to maintain a direct point of interconnection (“POI”) on PSTC's network facilities in Roberta for the exchange of local traffic between the parties. Calls originating with third party carriers also transited, or routed through, PSTC's Roberta switch and were delivered to Alltel at the Roberta POI. Although not terminating such traffic, PSTC apparently billed access charges to the third-party carriers originating the calls. On its side of the POI in Roberta, Alltel established network facilities and handled the transport to Alltel's wireless switch located in Columbus, Georgia. PSTC incurred no costs associated with the network and transport on Alltel's side of the POI.

In 2006 Alltel “re-homed” (i.e., re-routed) calls to its customers from third-party carriers. Alltel did so by routing such calls to its facilities through the Macon tandem of AT & T, as a consequence of which calls not intended for PSTC's customers would no longer transit PSTC's facilities. According to the Commission order below, Alltel provided PSTC and other carriers with notice of the rerouting consistent with industry guidelines, and the re-home was approved by the North American Numbering Plan Administrator (“NANPA”). The 478–672 numbers remained rated to Roberta. The re-home did not affect the technical ability of PSTC to continue to route calls originated from its customers to Alltel via the Roberta POL Nor did the re-home cause PSTC to incur any additional costs.

Approximately two weeks prior to the stated effective date of the re-home, PSTC provided Alltel notice of its intent to “re-rate” to Macon all calls to the 478–672 numbers. Thus, calls to the 478–672 numbers from PSTC's customers that did not have local calling to Macon would be toll calls. PSTC contended that such calls must be treated the same as calls from a PSTC wireline customer to an AT & T wireline customer in Macon. Alltel objected to the rerating, and provided PSTC with a bona fide request for interconnection agreement negotiations pursuant to 47 U.S.C. §§ 251 and 252. Both before and during negotiations, Alltel requested that the rating of traffic at and routing of traffic through Roberta not change for traffic between PSTC and Alltel.

On September 11, 2006, Alltel filed a complaint with the Commission to prevent PSTC from re-rating the traffic and revoking the local dialing parity required by 47 U.S.C. § 251(b)(3) and 47 C.F.R. § 51.207. PSTC submitted an answer and counterclaim, the latter alleging, in principal part, that Alltel had failed to reciprocally terminate traffic for which PSTC was entitled to reciprocal compensation. On September 28, 2006, the Commission issued a standstill order that directed PSTC not to make dialing, rating, or routing changes pending the resolution of the proceeding.

According to the Commission order below, PSTC insisted that the POI be located in Macon, to which PSTC had extended its network. In November 2006, the parties entered into an interconnection and reciprocal compensation agreement (the “Alltel Agreement” or “Alltel ICA”), which was made effective September 6, 2006. The Alltel Agreement, which was based on the interconnection agreement entered into between PSTC and Verizon Wireless, established the direct interconnection POI at Macon for the exchange of the parties' traffic.

Following the negotiation of the Alltel Agreement, and throughout the proceedings before the Commission and this Court, PSTC has asserted that because calls to the 478–672 numbers were re-routed through Macon rather than through Roberta while the numbers themselves remained rated to Roberta, a “split rating and routing” ¹ process has been established that would unlawfully expand the geographic scope of local calling from PSTC's local exchange service area and cause PSTC to lose reciprocal compensation payments. According to PSTC, the split rating and routing violates the Telecommunications Act of 1996 (the “Act”), Pub. L. No. 104–106, 110 Stat. 56 (1996) (codified in scattered sections of title 47 of the United States Code) and the Alltel ICA. The core of PSTC's argument is essentially that the Alltel ICA—principally, Section IV(B)(3)—and 47 U.S.C. § 252(a)(1) contract around the dialing parity and other requirements of 47 U.S.C. § 251(b), and...