Verizon New England v. Maine Public Util. Com'n

• Decision Date: 20 November 2007
• Docket Number: No. 06-2151.,06-2151.
• Citation: 509 F.3d 13
• Parties: VERIZON NEW ENGLAND, INC., Plaintiff, Appellant, v. MAINE PUBLIC UTILITIES COMMISSION; Stephen L. Diamond, in his official capacity as Commissioner of the Maine Public Utilities Commission; Sharon M. Reishus, in her official capacity as Commissioner of the Maine Public Utilities Commission; Kurt W. Adams, in his official capacity as Commissioner of the Maine Public Utilities Commission, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

509 F.3d 13

VERIZON NEW ENGLAND, INC., Plaintiff, Appellant, v. MAINE PUBLIC UTILITIES COMMISSION; Stephen L. Diamond, in his official capacity as Commissioner of the Maine Public Utilities Commission; Sharon M. Reishus, in her official capacity as Commissioner of the Maine Public Utilities Commission; Kurt W. Adams, in his official capacity as Commissioner of the Maine Public Utilities Commission, Defendants, Appellees.

No. 06-2151.

United States Court of Appeals, First Circuit.

November 20, 2007.

William D. Hewitt, Catherine R. Connors, Pierce Atwood LLP, Portland, ME, Scott H. Angstreich, Kelly P. Dunbar, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, DC, Bruce P. Beausejour, Verizon New England Legal Department, Donald W. Boecke, Verizon Communications, Boston, MA, for Plaintiff, Appellant.

Andrew S. Hagler, Maine State Public Utilities Comm., Augusta, ME, for Maine

Public Utilities Commission, Stephen L. Diamond, In His Official Capacity as Commissioner of the Maine Public Utilities Commission, Sharon M Reishus, in her Official Capacity as Commissioner of the Maine Public Utilities Commission, and Kurt W. Adams, in His Official Capacity as Commissioner of the Maine Public Utilities Commission.

Trina M. Bragdon, for Stephen L. Diamond, in his Official Capacity as Commissioner of the Maine Public Utilities Commission, Sharon M Reishus, in her Official Capacity as Commissioner of the Maine Public Utilities Commission, and Kurt W. Adams, in His Official Capacity as Commissioner of the Maine Public Utilities Commission.

Frederick S. Samp, Bangor Hydro Electric Co., Bangor, ME, Russell M. Blau, Philip J. Macres, Commonwealth Telephone Co., Joshua M. Bobeck, Washington, DC, Rebecca S. Webber, Linnell, Choate & Webber, Auburn, ME, David S. Rosenzweig, Keegan Werlin LLP, Boston, MA, for Kurt W. Adams, in His Official Capacity as Commissioner of the Maine Public Utilities Commission.

Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.

ORDER ON REHEARING

PER CURIAM.

Verizon New England has petitioned for rehearing in No. 06-2151, one of the two cases addressed in our single decision of September 6, 2007. Verizon asks that we alter our judgment to delete our direction to the district court to make a primary jurisdiction referral to the FCC. Verizon proposes instead that the district court decision be vacated with directions to vacate the Maine PUC orders, leaving the Maine PUC free (as it perhaps already is) to consider any claims relating to the GWI agreement that depend solely on contract.

Verizon's main claim is that our decision has already determined that the Maine PUC has no authority under federal law to enforce section 271 because (as our decision explained) section 271 is a grant of authority to the FCC and, unlike sections 251-52, does not provide any express role for the states beyond making recommendations to the FCC to be used in determining whether to grant section 271 applications. Verizon is correct that the Maine PUC cannot rely on section 271 as a grant of authority to it to implement that provision.

However, the district court said that Maine law allowed the state agency to enforce requirements...