Verizon Wireless (Yaw) LLC v. Kolbeck
| Decision Date | 28 December 2007 |
| Docket Number | No. CIV 04-3014.,CIV 04-3014. |
| Citation | 529 F.Supp.2d 1081,2007 DSD 30 |
| Parties | VERIZON WIRELESS (VAW) LLC, Commnet Cellular License Holding LLC, Missouri Valley Cellular, Inc., Sanborn Cellular, Inc., and Eastern South Dakota Cellular, Inc., d/b/a Verizon Wireless, Plaintiffs, v. Steve KOLBECK, Gary Hanson and Dustin Johnson, in their official capacities as the Commissioners of the South Dakota Public Utilities Commission, Defendants, South Dakota.Telecommunications Ass'n and Venture Communications Cooperative, Intervenors. |
| Court | U.S. District Court — District of South Dakota |
Craig A. Pfeifle, Gene N. Lebrun, Steven Joe Oberg, Lynn, Jackson, Shultz & Lebrun, PC, Rapid City, SD, David C. McDonald, Philip R. Schenkenberg, Briggs & Morgan, P.A., Minneapolis, MN, for Plaintiffs.
Rolayne L. Ailts Wiest, Public Utilities Commission, Pierre, SD, for Defendants.
Darla Pollman Rogers, Margo D. Northrup, Riter, Rogers, Wattier & Brown, LLP, Richard D. Coit, SD Independent Telephone Coalition, Pierre, SD, for Intervenors.
[¶ 1] Plaintiffs ("Verizon Wireless") instituted this declaratory judgment action, seeking a declaration that portions of Senate Bill 144, enacted by the 79th Session of the South Dakota Legislature, published as Chapter 284 of the 2004 Session Laws and now codified at SDCL 49-31-109 through 49-31-115, are unconstitutional, as applied to wireless carriers. Governor Rounds signed the measure on February 27, 2004, and the statutes became effective July 1, 2004. The specific claims are that SDCL 49-31-110 and 111 are preempted by the Telecommunications Act of 1996 and the regulations adopted by the Faileral Communications Commission ("FCC"). Plaintiffs also seek a preliminary injunction enjoining enforcement of the statutes pending a decision as to the constitutionality of these statutes.
[¶ 2] South Dakota Telecommunications Association ("SDTA") and Venture Communications Cooperative ("Venture") became parties to this suit after an unopposed motion to intervene. Plaintiffs then filed a motion for summary judgment. This motion was denied by the court due to the existence of several issues of material fact. Namely, the court held that: (1) issues of fact existed as to the relative burdensomeness of the statutes' identification requirements; (2) issues of fact existed as to whether the statutes conflicted with federal regulations; and (3) issues of fact also existed as to the requirement for identification of non-local wireless calls.
[¶ 3] This matter was tried to the Court on August 15-16, 2007. At trial plaintiffs called three witnesses: John Clampit, Ed Harrop, and Abelkader Benaouda. Randy Olson, Assistant General Manager of Venture was called as a joint witness by the defendants and intervenors. The intervenors also presented testimony of Larry Thompson, CEO of Vantage Point Systems ("VPS"), an engineering and consulting firm. The Court received various exhibits into evidence. The Court was required to almost constantly remind the attorneys and the witnesses to speak English rather than use industry parlance with which the Court was not familiar.
[¶ 4] On October 2, 2007, the parties jointly agreed and moved (Doc. 123) the Court pursuant to Fed.R.Civ.P. 21 for an order removing the State of South Dakota as a party defendant in this matter. Also post-trial, the parties have prepared post-hearing briefs and proposed findings of facts and conclusions of law. After considering the stipulations, testimony, documentary evidence, and post-hearing filings, I enter the following Findings and Conclusions.
[¶ 5] Senate Bill 144 became effective July 1, 2004, becoming Chapter 298 of the Session Laws of 2004. This chapter was codified as SDCL 49-31-109 through 49-31-115.
[¶ 6] SDCL 49-31-109 through 49-31-115 provide:
49-31-109. Definitions. Terms used in §§ 49-31-109 to 49-31-115, inclusive, mean:
(1) "Interexchange carrier," a telecommunications carrier providing non-local (sic) telecommunications services;
(2) "Local telecommunications traffic," any wireline to wireline telecommunications traffic that originates and terminates in the same wireline local calling area or wireline to wireless telecommunications traffic that originates within and is delivered to an actual point of presence established by a wireless service provider in the same wireline local calling area. Local telecommunications traffic also includes any wireless to wireline telecommunications traffic that originates and terminates in the same major trading area as defined in 47 CFR § 24.202(a) as of January 1, 2004;
(3) "Nonlocal (sic) telecommunications traffic," any wireline to wireline telecommunications traffic that originates in one wireline local calling area and terminates in another wireline local calling area and wireline to wireless telecommunications traffic that originates in one wireline local calling area and is delivered to an actual point of presence established by a wireless service provider in another wireline local calling area. Nonlocal (sic) telecommunications traffic also includes any wireless to wireline telecommunications traffic that originates in one major trading area and terminates in another major trading area;
(4) "Originating carrier," a telecommunications carrier whose network or service is used by a customer to originate telecommunications traffic. An originating carrier may be a wireline or wireless carrier transmitting local telecommunications traffic or an interexchange carrier transmitting nonlocal (sic) telecommunications traffic;
(5) "Terminating carrier," a telecommunications carrier upon whose network telecommunications traffic terminates to the called party;
(6) "Transiting carrier," a telecommunications carrier that does not originate or terminate telecommunications traffic, but either switches or transports traffic, or both, between an originating carrier and a terminating carrier;
(7) "Transit traffic," telecommunications traffic that an originating carrier has delivered to a transiting carrier or carriers for delivery to a terminating carrier.
49-31-110. Local telecommunications traffic signaling inforniation required to be provided by originating carrier to terminating carrier to assess charges. If necessary for the assessment of transport and termination charges pursuant to 47 U.S.C. § 251(b)(5) as of. January 1, 2004, an originating carrier of local telecommunications traffic shall, in delivering its traffic, transmit signaling information in accordance with commonly accepted industry standards giving the terminating carrier information that is sufficient to identify, measure, and appropriately charge the originating carrier for services provided in terminating the local telecommunications traffic. If the originating carrier is delivering both local and nonlocal (sic) telecommunications traffic, the originating carrier shall separately provide the terminating carrier with accurate and verifiable information, including percentage measurements that enables the terminating carrier to appropriately classify telecommunications traffic as being either local or nonlocal (sic), and interstate or intrastate, and to assess the appropriate applicable transport and termination or access charges. If accurate and verifiable information allowing appropriate classification of the terminated traffic is not provided by the originating carrier, the terminating carrier may classify all unidentified traffic terminated for the originating carrier as nonlocal (sic) telecommunications traffic for service billing purposes.
49-31-111. Nonlocal (sic) telecommunications traffic signaling information required to be provided by originating carrier to terminating carrier to assess charges. An originating carrier of nonlocal (sic) telecommunications traffic shall, in delivering its traffic, transmit signaling information in accordance with commonly accepted industry standards giving the terminating carrier information that is sufficient to identify, measure, and appropriately charge the originating carrier for services provided in terminating the nonlocal (sic) telecommunications traffic. If the originating carrier is delivering both intrastate and interstate nonlocal (sic) telecommunications traffic, the originating carrier shall separately provide the terminating carrier with accurate information including verifiable percentage measurements that enables the terminating carrier to appropriately classify nonlocal (sic) telecommunications traffic as being either interstate or intrastate, and to assess the appropriate applicable access charges. If accurate and verifiable information allowing appropriate classification of the telecommunications traffic is not provided by the originating carrier, the terminating carrier may classify all unidentified nonlocal (sic) telecommunications traffic terminated for the originating carrier as intrastate telecommunications traffic for service billing purposes.
49-31-112. Transiting carrier required to deliver signaling information with telecommunications traffic—Liability for failure to deliver. A transiting carrier shall deliver telecommunications traffic to the terminating carrier by means of facilities and signaling protocols that enable the terminating carrier to receive from the originating carrier all signaling information, as required by §§ 49-31-110 and 49-31-111, the originating carrier transmits with its telecommunications traffic. If any transiting carrier fails to deliver telecommunications traffic to another transiting carrier or to the terminating carrier with all of the signaling information (transmitted by the originating carrier as required by §.§ 49-31-110 and 49-31-111, and this results in telecommunications traffic that is not identifiable and therefore not billable by the terminating carrier to the appropriate originating carrier, the transiting...
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