Talk Am., Inc. v. Mich. Bell Tel. Co., Nos. 10–313

CourtUnited States Supreme Court
Writing for the CourtTHOMAS, J.
Citation131 S.Ct. 2254,564 U.S. 50,180 L.Ed.2d 96
Parties TALK AMERICA, INC., Petitioner, v. MICHIGAN BELL TELEPHONE CO. dba AT&T Michigan. Orjiakor Isiogu, et al, Petitioners, v. Michigan Bell Telephone Co. dba AT&T Michigan.
Docket Number10–329.,Nos. 10–313
Decision Date09 June 2011

564 U.S. 50
131 S.Ct.
2254
180 L.Ed.2d 96

TALK AMERICA, INC., Petitioner,
v.
MICHIGAN BELL TELEPHONE CO. dba AT&T Michigan.


Orjiakor Isiogu, et al, Petitioners,
v.
Michigan Bell Telephone Co. dba AT&T Michigan.

Nos. 10–313
10–329.

Supreme Court of the United States

Argued March 30, 2011.
Decided June 9, 2011.


John J. Bursch, Lansing MI, for petitioners.

Eric D. Miller for United States as amicus curiae, by special leave of the Court, supporting the petitioners.

Scott H. Angstreich, Washington, DC, for respondents.

Bill Schuette, Attorney General, John J. Bursch, Michigan Solicitor General, Counsel of Record, Lansing, MI, B. Eric Restuccia, Michigan Deputy Solicitor General, Steven D. Hughey, Public Service Division Chief, Anne M. Uitvlugt, Assistant Attorney General, Public Service Division, for petitioners Orjiakor N. Isiogu, Monica Martinez, and Greg R. White, MPSC Commissioners.

D. Wayne Watts, AT&T Inc., Dallas, TX, John T. Lenahan, Mark R. Ortlieb, AT&T Services Inc., Chicago, IL, Cynthia F. Malone, AT&T Services Inc., Dallas, TX, Scott H. Angstreich, Counsel of Record, Brendan J. Crimmins, Scott K. Attaway, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, DC, Gary L. Phillips, Christopher M. Heimann, AT&T Services Inc., Washington, DC, for Michigan Bell Telephone Company.

THOMAS, J., delivered the opinion of the Court,

564 U.S. 53

In these cases, we consider whether an incumbent provider of local telephone service must make certain transmission facilities available to competitors at cost-based rates. The Federal Communications Commission (FCC or Commission) as amicus curiae1 contends that its regulations require the incumbent provider to do so if the facilities are to be used for interconnection: to link the incumbent provider's telephone network with the competitor's network for the mutual exchange of traffic. We defer to the Commission's views and reverse the judgment below.

I

The Telecommunications Act of 1996 (1996 Act), 110 Stat. 56, imposed a number of duties on incumbent providers of local telephone service in order to facilitate market entry by competitors. AT & T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 371, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999). The incumbent local ex-change carriers (LECs) owned the local exchange networks: the physical equipment necessary

131 S.Ct. 2258

to receive, properly route, and deliver phone calls among customers. Verizon Communications Inc. v. FCC, 535 U.S. 467, 490, 122 S.Ct. 1646, 152 L.Ed.2d 701 (2002). Before the 1996 Act, a new, competitive LEC could not compete with an incumbent

564 U.S. 54

carrier without basically replicating the incumbent's entire existing network. Ibid.

The 1996 Act addressed that barrier to market entry by requiring incumbent LECs to share their networks with competitive LECs in several ways, two of which are relevant here. First, 47 U.S.C. § 251(c)(3) requires incumbent LECs to lease "on an unbundled basis"—i.e., a la carte—network elements specified by the Commission. This makes it easier for a competitor to create its own network without having to build every element from scratch. In identifying which network elements must be available for unbundled lease under § 251(c)(3), the Commission is required to consider whether access is "necessary" and whether failing to provide access would "impair" a competitor's provision of service. § 251(d)(2). Second, § 251(c)(2) mandates that incumbent LECs "provide ... interconnection" between their networks and competitive LECs' facilities. This ensures that customers on a competitor's network can call customers on the incumbent's network, and vice versa. The interconnection duty is independent of the unbundling rules and not subject to impairment analysis. It is undisputed that both un-bundled network elements and interconnection must be provided at cost-based rates. See § 252(d)(1); Brief for Petitioner in No. 10–313, p. 28; Brief for Petitioners in No. 10–329, p. 7; Brief for Respondent 4.

These cases concern incumbent LECs' obligation to share existing "entrance facilities" with competitive LECs. Entrance facilities are the transmission facilities (typically wires or cables) that connect competitive LECs' networks with incumbent LECs' networks. The FCC recently adopted a regulation specifying that entrance facilities are not among the network elements that § 251(c)(3) requires incumbents to lease to competitors on an unbundled basis at cost-based rates. See 47 CFR § 51.319(e)(2)(i) (2005). The Commission noted, however, that it "d[id] not alter the right of competitive LECs to obtain interconnection facilities pursuant

564 U.S. 55

to section 251(c) (2)." In re Unbundled Access to Network Elements, 20 FCC Rcd. 2533, 2611, ¶ 140 (2005) (Triennial Review Remand Order) .

The specific issue here is whether respondent, Michigan Bell Telephone Company d/b/a AT & T Michigan (AT & T), must lease existing entrance facilities to competitive LECs at cost-based rates. The FCC interprets its regulations to require AT & T to do so for the purpose of interconnection. We begin by reviewing the Commission's recent actions regarding entrance facilities and then explain the particular dispute that is before us today.

A

In 2003, the FCC decided, contrary to its previous orders, that incumbent LECs were not obligated to provide cost-based unbundled access to entrance facilities under § 251(c)(3). In re Review of Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, 18 FCC Rcd. 16978, 17202–17205, ¶¶ 365–367 (2003) (Triennial Review Order) . Explaining that its previous approach had been "misguided" and "overly broad," id., ¶¶ 366, 365, the Commission concluded that entrance facilities were not subject to the unbundling requirement because they are not network elements at all. See id., ¶ 366 (entrance facilities "exist outside the incumbent LEC's local network"). The

131 S.Ct. 2259

Commission therefore did not conduct an impairment analysis.

The FCC emphasized, however, the limits of this ruling. Entrance facilities are used for two purposes: interconnection and backhauling.2 It expressly "d[id] not alter" an incumbent

564 U.S. 56

LEC's obligation under § 251(c)(2) to provide "facilities in order to ‘interconnect with the incumbent LEC's network.’ " Id., ¶ 366 (brackets omitted). Thus, although the Commission specified that § 251(c)(3) did not require any unbundled leasing of entrance facilities, it determined in practical effect only that "incumbent LECs [were not obligated] to unbundle [entrance facilities] for the purpose of backhauling traffic." Id., ¶ 365.

On direct review, the D.C. Circuit questioned the Commission's determination that entrance facilities are not network elements under § 251(c)(3), but found the agency rulemaking record insufficient and remanded to the Commission for further consideration. See United States Telecom Assn. v. FCC, 359 F.3d 554, 586, cert. denied, 543 U.S. 925, 125 S.Ct. 313, 316, 345, 160 L.Ed.2d 223 (2004). The court noted that if entrance facilities were in fact " ‘network elements,’ " then "an analysis of impairment would presumably follow." 359 F.3d, at 586.

In 2005, the Commission responded. See Triennial Review Remand Order ¶¶ 136–141. The Commission re-treated from its view that entrance facilities are not network elements but adhered to its previous position that cost-based unbundled access to them need not be provided under § 251(c)(3). Id., ¶¶ 137–138. Treating entrance facilities as network elements, the Commission concluded that competitive LECs are not impaired without access to them. Ibid. The Commission again emphasized that it "d[id] not alter the right of competitive LECs to obtain interconnection facilities pursuant to section 251(c)(2)." Id., ¶ 140.

B

In the wake of the Triennial Review Remand Order , AT & T notified competitive LECs that it would no longer provide entrance facilities at cost-based rates for either backhauling or interconnection, but would instead charge higher

564 U.S. 57

rates. Competitive LECs complained to the Michigan Public Service Commission (PSC) that AT & T was unlawfully abrogating their right to cost-based interconnection under § 251(c)(2). The Michigan PSC agreed with the competitive LECs and ordered AT & T to continue providing entrance facilities for interconnection at cost-based rates.

AT & T challenged the Michigan PSC's ruling in the District Court, which, relying on the Triennial Review Remand Order , ruled in AT & T's favor. The Michigan PSC and several competitive LECs, including petitioner Talk America, Inc., appealed.

The Court of Appeals for the Sixth Circuit affirmed over a dissent. Michigan Bell Telephone Co. v. Covad Communications Co., 597 F.3d 370 (2010). At the court's invitation, the FCC filed a brief as amicus curiae, arguing that the Triennial

131 S.Ct. 2260

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180 practice notes
  • Decker v. Nw. Envtl. Def. Ctr., Nos. 11–338
    • United States
    • U.S. Supreme Court
    • March 20, 2013
    ...to an agency's interpretation of its own regulations.” Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. ––––, ––––, 131 S.Ct. 2254, 2265, 180 L.Ed.2d 96 (2011) (SCALIA, J., concurring). This is generally called Seminole Rock or Auer deference. See Bowles v. Seminole Rock & Sa......
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    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 30, 2018
    ...Mullins v. City of New York, 653 F.3d 104, 106 (2d Cir. 2011) (quoting Talk Am., Inc. v. Michigan Bell Tel. Co. dba AT&T Michigan, 564 U.S. 50 (2011)). Textual ambiguity is a pre-requisite for the application of Auer deference. Christiensen v. Harris Cty., 529 U.S. 576, 588 (2000) (&quo......
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    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 15, 2012
    ...certain aspects of an incumbent LEC's interconnection duties, see [678 F.3d 982]Talk Am., Inc. v. Mich. Bell. Tel. Co., ––– U.S. ––––, 131 S.Ct. 2254, 2262 n. 4, 180 L.Ed.2d 96 (2011) (“The [FCC] suggests here, as it has before, that additional considerations of cost or reasonableness might......
  • Exelon Wind 1, L.L.C. v. Nelson, No. 12–51228.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 8, 2014
    ...or Congress (in PURPA) have spoken directly to the precise issue in question. See Talk Am., Inc. v. Mich. Bell Tel. Co., ––– U.S. ––––, 131 S.Ct. 2254, 2260, 180 L.Ed.2d 96 (2011) (first analyzing whether a “statute or regulation squarely addresses” the issue in that case); Chase Bank USA, ......
  • Request a trial to view additional results
176 cases
  • Decker v. Nw. Envtl. Def. Ctr., Nos. 11–338
    • United States
    • U.S. Supreme Court
    • March 20, 2013
    ...to an agency's interpretation of its own regulations.” Talk America, Inc. v. Michigan Bell Telephone Co., 564 U.S. ––––, ––––, 131 S.Ct. 2254, 2265, 180 L.Ed.2d 96 (2011) (SCALIA, J., concurring). This is generally called Seminole Rock or Auer deference. See Bowles v. Seminole Rock & Sand C......
  • Rodriguez v. Nielsen, 16-CV-7092 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 30, 2018
    ...Mullins v. City of New York, 653 F.3d 104, 106 (2d Cir. 2011) (quoting Talk Am., Inc. v. Michigan Bell Tel. Co. dba AT&T Michigan, 564 U.S. 50 (2011)). Textual ambiguity is a pre-requisite for the application of Auer deference. Christiensen v. Harris Cty., 529 U.S. 576, 588 (2000) ("Auer de......
  • W. Radio Servs. Co. v. Qwest Corp., No. 10–35820.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 15, 2012
    ...certain aspects of an incumbent LEC's interconnection duties, see [678 F.3d 982]Talk Am., Inc. v. Mich. Bell. Tel. Co., ––– U.S. ––––, 131 S.Ct. 2254, 2262 n. 4, 180 L.Ed.2d 96 (2011) (“The [FCC] suggests here, as it has before, that additional considerations of cost or reasonableness might......
  • Exelon Wind 1, L.L.C. v. Nelson, No. 12–51228.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • September 8, 2014
    ...or Congress (in PURPA) have spoken directly to the precise issue in question. See Talk Am., Inc. v. Mich. Bell Tel. Co., ––– U.S. ––––, 131 S.Ct. 2254, 2260, 180 L.Ed.2d 96 (2011) (first analyzing whether a “statute or regulation squarely addresses” the issue in that case); Chase Bank USA, ......
  • Request a trial to view additional results
4 books & journal articles
  • Administering the National Environmental Policy Act
    • United States
    • Environmental Law Reporter Nbr. 45-4, April 2015
    • April 1, 2015
    ...Mar. 9, 2015) Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2168-69 (2012); Talk America, Inc. v. Michigan Bell Tel. Co., 131 S. Ct. 2254, 2265-66 (2011) (Scalia, J., concurring) (volunteering a willingness to revisit Seminole Rock deference) ( citing Manning, Constitutional Str......
  • The Final Auer: How Weakening the Deference Doctrine May Impact Environmental Law
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    • Environmental Law Reporter Nbr. 45-10, October 2015
    • October 1, 2015
    ...Alaska, Inc. v. Southeast Alaska Conservation Council, 557 U.S. 261, 39 ELR 20133 (2009); Talk America, Inc. v. Michigan Bell Tel. Co., 131 S. Ct. 2254 (2011); Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156 (2012); and Decker v. Northwest Envtl. Def. Ctr., 133 S. Ct. 1326, 43 ELR ......
  • Agency Deference After Kisor v. Wilkie
    • United States
    • The Georgetown Journal of Law & Public Policy Nbr. 18-1, January 2020
    • January 1, 2020
    ...Nw. Envtl. Def. Ctr., 568 U.S. 597, 613 (2013); PLIVA, Inc. v. Mensing, 564 U.S. 604, 613 (2011); Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 59–63 (2011); Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 208–11 (2011); Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261......
  • United States v. DTE Energy Co.: A Flawed Decision With Implications for the Future Enforceability of New Source Review
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    • Environmental Law Reporter Nbr. 45-6, June 2015
    • June 1, 2015
    ...See Decker v. Northwest Envtl. Def. Ctr., 133 S. Ct. 1326, 1337, 43 ELR 20062 (2013). 164. Talk America, Inc. v. Michigan Bell Tel. Co., 131 S. Ct. 2254, 2261 (2011) (internal quotation marks omitted). Such deference is commonly known as Auer or Seminole Rock deference. Auer v. Robbins, 519......

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