US W. Communications v. Hamilton, s. 99-35462
| Decision Date | 12 July 2000 |
| Docket Number | 99-35587,99-35586,Nos. 99-35462,s. 99-35462 |
| Citation | 224 F.3d 1049 |
| Parties | (9th Cir. 2000) US WEST COMMUNICATIONS, INC., Plaintiff-Appellee, and UNITED STATES OF AMERICA, Intervenor, v. ROGER HAMILTON, Chairman of the Oregon Public Utility Commission; RON EACHUS, Commissioner of the Oregon Public Utility Commission; JOAN H. SMITH, Commissioner of the Oregon Public Utility Commission; OREGON PUBLIC UTILITY COMMISSION; MCI METRO ACCESS TRANSMISSION SERVICES, INC.; SPRINT COMMUNICATIONS, Defendants, and AT&T COMMUNICATIONS OF THE PACIFIC NORTHWEST, INC., Defendant-Appellant. US WEST COMMUNICATIONS, INC., Plaintiff-Appellee, and UNITED STATES OF AMERICA, Intervenor, v. ROGER HAMILTON, Chairman of the Oregon Public Utility Commission; RON EACHUS, Commissioner of the Oregon Public Utility Commission; JOAN H. SMITH, Commissioner of the Oregon Public Utility Commission; OREGON PUBLIC UTILITY COMMISSION; AT&T COMMUNICATIONS OF THE PACIFIC NORTHWEST, INC.; SPRINT COMMUNICATIONS, Defendants, and MCI METRO ACCESS TRANSMISSION SERVICES, INC., Defendant-Appellant. US WEST COMMUNICATIONS, INC., Plaintiff-Appellee, v. WORLDCOM TECHNOLOGIES, INC., Defendant-Appellant |
| Court | U.S. Court of Appeals — Ninth Circuit |
COUNSEL: Michael C. Thompson, Joyce Grant, Russell P. Rowe, and Phillip L. Douglass, US West Law Department, Denver, Colorado; Sherilyn Peterson and Kirstin S. Dodge, Perkins Coie LLP, Bellevue, Washington, for appellant and cross-appellee US West Communications, Inc.
Thomas F. O'Neil III and William Single, IV, MCI WorldCom, Inc., Washington, D.C., and Donald B. Verrilli, Jr., Maureen F. Del Duca, Jodie L. Kelley, and Cynthia Robertson, Jenner & Block, Washington, D.C., for appellees and cross-appellants MCI Telecommunications Corporation, MCImetro Access Transmission Services, Inc., and WorldCom Technologies, Inc.
Daniel M. Waggoner, Martin L. Fineman, and Kraig L. M. Baker, Davis Wright Tremaine LLP, Seattle, Washington, and Thomas C. Pelto and Rebecca DeCook, AT&T Communications of the Pacific Northwest, Inc., Denver, Colorado, for appellees and cross-appellants AT&T Communications of the Pacific Northwest, Inc.
Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and W. Benny Won, Assistant Attorney General of the State of Oregon, General Counsel Division, Salem, Oregon, for appellees Oregon Public Utility Commission and Commissioners Roger Hamilton, Ron Eachus, and Joan H. Smith.
Theodore C. Hirt, US Attorney's Office, Washington, D.C., for Amicus Federal Communications Commission.
Before: Alfred T. Goodwin, Susan P. Graber, and William A. Fletcher, Circuit Judges. Opinion by Judge W. Fletcher
In these consolidated appeals, AT&T Communications of the Pacific Northwest ("AT&T"), MCI Metro Access Transmission Services ("MCI"), and WorldCom Technologies ("WorldCom") appeal district court judgments invalidating several provisions of arbitrated interconnection agreements with US West Communications ("US West")1 pursuant to the Telecommunications Act of 1996 ("the Act"). We conclude that all the challenged provisions of the interconnection agreements are valid under the Act and its implementing regulations. We therefore reverse the district court's partial summary judgment invalidating those provisions.
The Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 56, codified in part at 47 U.S.C. ' 251-61, is designed to foster competition in local and long distance telephone markets by neutralizing the competitive advantage inherent in incumbent carriers' ownership of the physical networks required to supply telecommunication services. Sections 251 and 252 of the Act require incumbent local exchange carriers (ILECs) to allow competitive local exchange carriers (CLECs) to interconnect with their existing networks and to purchase their finished telecommunications service for resale in return for fair compensation. See 47 U.S.C. ' 251-52. The Act directs the ILECs and CLECs to negotiate in good faith to reach an agreement over the terms of the interconnection. See id. ' 251(c)(1), 252(a). If an ILEC and a CLEC are unable to agree, the Act provides for binding arbitration conducted under the aegis of the state public utilities commission. See id. 252(b). After a state commission approves an arbitrated agreement, any party to the agreement may bring an action in district court"to determine whether the agreement . . . meets the requirements " of the Act. Id. 252(e)(6).
In Oregon, US West is an ILEC; AT&T, MCI, and WorldCom are CLECs; and the Oregon Public Utilities Commission ("OPUC") is the state agency charged with arbitrating and approving interconnection agreements. Following unsuccessful negotiations with US West, all three CLECs petitioned OPUC for arbitration. OPUC arbitrated and ratified interconnection agreements between the parties.
US West challenged the agreements in district court. The cases were consolidated and heard by consent before a magistrate judge who decided them at summary judgment, upholding some provisions of the agreements and invalidating others. US West appealed, and AT&T, MCI, and WorldCom cross-appealed. US West subsequently dismissed its appeals. Only the cross-appeals remain.
We review de novo the district court's grant of summary judgment. See US West Communications v. MFS Intelenet, Inc. , 193 F.3d 1112, 1117 (9th Cir. 1999). In reviewing the district court's decision, we "apply the same standard the district court should apply" in reviewing OPUC's decision. Id. The Act vests district courts with jurisdiction to"determine whether the agreement[s] . . . meet[ ] the requirements" of the Act. 47 U.S.C. 252(e)(6). We therefore "consider[ ] de novo whether the agreements are in compliance with the Act and the implementing regulations, and consider[ ] all other issues under an arbitrary and capricious standard." MFS Intelenet, 193 F.3d at 1117 (footnote and internal citations omitted).
Four issues are raised in these cross-appeals: (1) May US West be prevented from obtaining reciprocal access to the CLECs' poles, ducts, conduits, and rights-of-way under 47 U.S.C. ' 224 and 251(b)(4)? (2) May US West be required to allow MCI to collocate remote switching units on its premises under 47 U.S.C. 251(c)(6)? (3) Did the arbitrator act properly in requiring US West to use for inter-carrier billing the "IABS" system preferred by AT&T and MCI, rather than the "CRIS" system preferred by US West? (4) Did the district court err in remanding to OPUC for further consideration a provision requiring US West to bundle network elements? We consider these issues in turn.
The challenged agreements include a provision that precludes US West from obtaining access to the CLECs' poles, ducts, conduits, and rights-of-way, even though US West must grant these same CLECs access to its own poles, ducts, conduits, and rights-of-way. OPUC upheld this provision, but the district court struck it down as inconsistent with the plain language of the Act.
There is no doubt that the Act obliges ILECs to grant CLECs access to their poles, ducts, conduits, and rights-ofway. See 47 U.S.C. 251(b)(4). There is considerable controversy, however, about whether this obligation is reciprocal -that is, whether CLECs must make their poles, ducts, conduits, and rights-of-way accessible to ILECs like US West.
On the one hand, 251(b) of the Act, entitled"Obligations of all local exchange carriers," provides that"[e]ach local exchange carrier" has the duty "to afford access to the poles, ducts, conduits, and rights-of-way of such carrier to competing providers of telecommunications services on rates, terms, and conditions that are consistent with section 224[of this title]." 47 U.S.C. 251(b)(4). If 251(b) were the only applicable section, it would appear to settle the question in favor of reciprocal access, for under its plain language all "local exchange carriers," whether ILECs or CLECs, must grant access.
On the other hand, 224, entitled "Pole attachments," requires a "utility [to] provide . . . any telecommunications carrier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it. " 47 U.S.C. 224(f)(1). Section 224(a) defines "utility" broadly enough to include both ILECs and CLECs, but it restricts the definition of "telecommunications carrier" -the entity entitled to access -so that CLECs but not ILECs qualify. According to that section, 47 U.S.C. ' 224(a)(1), (5). Section 224 casts doubt on whether the duty under 251(b)(4) is truly a reciprocal one, particularly given the cross-reference in 251(b)(4) to 224.
The FCC addressed this ambiguity in & 1231 of its first Local Competition Order, which it released in August 1996. See In re Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, First Report and Order, 11 F.C.C. Rcd. 15499 (released Aug. 8, 1996) ("First Local Competition Order" or "Order"). The Order provides:
[I]ncumbent LECs cannot use section 251(b)(4) as a means of gaining access to the facilities or property of a LEC. A LEC's obligation under section 251(b)(4) is to afford access "on rates, terms, and conditions that are consistent with section 224. " Section 224 does not prescribe rates, terms, or conditions governing access by an incumbent LEC to the facilities or rights-of-way of a competing LEC. Indeed, section 224 does not provide access rights to incumbent LECs. We cannot infer that section 251(b)(4) restores to an incumbent LEC access rights expressly withheld by section 224. We give deference...
To continue reading
Request your trial
-
Advanced Integrative Med. Sci. Inst., PLLC v. Garland
...the term "final order" under the Hobbs Act was "analytically equivalent" to the term "final agency action" under the APA. 224 F.3d 1049, 1054–55 (9th Cir. 2000). Therefore, we held that " Bennett governs our understanding of ‘final order’ for the purposes of the Hobbs Act." Id. Applying Ben......
-
Cobra Natural Res., LLC v. Fed. Mine Safety & Health Review Comm'n
...involve review of “final agency action.” But the principles apply to “final orders” as well. See, e.g., U.S. W. Commc'ns, Inc. v. Hamilton, 224 F.3d 1049, 1054–55 (9th Cir.2000); Meredith v. FMSHRC, 177 F.3d 1042, 1047 (D.C.Cir.1999). 2. We do not consider two factors. First, “[a] final ord......
-
Mci Telecommunications Corp. v. New York Telephone
...ducts, conduits, and rights-of-way accessible to the incumbent local provider. See 47 U.S.C. § 251(b)(4); US West Comms., Inc. v. Hamilton, 224 F.3d 1049, 1052 (9th Cir. 2000). Under 47 U.S.C. § 224, utilities are required to provide any telecommunications carrier with nondiscriminatory acc......
-
Oregon v. Ashcroft
...reason by analogy and look to general principles of administrative law formulated under the APA. See U.S. West Communications, Inc. v. Hamilton, 224 F.3d 1049, 1054-55 (9th Cir.2000) (using the APA's definition of "final" to interpret "final orders" under the Hobbs Act). For an agency actio......
-
Franchise Fees And The FCC's Mixed-Use Rule ' Oregon Federal Decision For Comcast May Have Wide Impact
...Cir. 2010). Against this background, the Court then relied on the Ninth Circuit's decision in US West Communications, Inc. v. Hamilton, 224 F.3d 1049 (9th Cir. 2000). In Hamilton, "the Ninth Circuit explained that under the Hobbs Act, it was 'not at liberty to review' the FCC's interpretati......