Wisconsin Bell, Inc. v. Burneatta Bridge
| Decision Date | 26 August 2004 |
| Docket Number | No. 03-C-430-C.,03-C-430-C. |
| Citation | 334 F.Supp.2d 1127 |
| Parties | WISCONSIN BELL, INC., d/b/a SBC Wisconsin, Plaintiff, v. Burneatta BRIDGE, Ave M. Bie and Robert M. Garvin, in Their Capacity as Commissioners of the Public Service Commission of Wisconsin and Not as Individuals, Defendants, and AT & T Communications Of Wisconsin, L.P., TDS Metrocom, LLC and Worldcom, Inc., d/b/a MCI, Intervening Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Diane M. Ramthun, Niles Berman, Wheeler, Van Sickle & Anderson, S.C., Madison, WI, for Defendants.
This is a civil action brought by plaintiff SBC Wisconsin pursuant to 47 U.S.C. § 252(e)(6) and 28 U.S.C. § 1331 to obtain judicial review of several determinations made by defendant commissioners of the Public Service Commission of Wisconsin concerning those portions of plaintiff's network that plaintiff must make available to the intervening defendants and at what cost. .
Under the Act, an incumbent can agree with its competitors on the network elements it will make available to them and the price it will charge for those elements. 47 U.S.C. § 252(a). In this case, however, the parties did not reach agreement. Instead, the Public Service Commission initiated an investigation to make the determinations for the parties. See 47 U.S.C. § 252(b). The commission issued two opinions as a result of its investigation, or "arbitration" as the process is called in § 252. See Final Decision, Docket No. 6720-TI-160 (March 22, 2002); UNE [Unbundled Network Elements] Compliance Order, Docket No. 6720-TI-160 (July 9, 2003). In the Final Decision at 1, the commission considered "[w]hat [unbundled network elements] [plaintiff] must offer and how those [elements] should be priced." However, the commission did not actually set the prices in the decision, but only "determine[d] the details of a methodology that can be used to determine cost base prices." Id. In addition, it ordered both plaintiff and intervening defendants to rerun their cost studies in accordance with the decision.
In the UNE Compliance Order, at 8, the commission "specifie[d] how cost studies should be modified to comply with the Commission's Final Decision." Although the commission set many interim rates, it determined that "further process will be necessary for certain issues to determine the rates that result from the Commission's selected methodologies." Among other things, the commission delegated three issues to the Telecommunications Division Administrator: (1) the discount to which intervening defendants were entitled for DLC electronics; (2) the amount of operating support system testing costs that should be included in the "joint and common costs"; and (3) the amount of the integrated digital loop carrier conversion costs.
Plaintiff challenges many of these determinations; the intervening defendants sought intervention to defend the determinations and to raise challenges of their own. In addition, intervening defendant TDS Metrocom, LLC, seeks a remand of the proceedings to the commission because, it contends, it did not receive the procedural protections it is guaranteed under the Telecommunications Act and the due process clause of the Constitution.
In an order dated April 30, 2004, I dismissed as unripe for review plaintiff's claims that the commission had erred in requiring plaintiff to provide its competitors with access to its digital subscriber line network architecture and the high frequency portion of its copper loop. In addition, I concluded that plaintiff and intervening defendants had failed to prove that they had standing on their remaining claims. I directed the parties to submit materials to the court showing whether the method that the commission had used had led to an increased rate (for intervening defendants) or a decreased rate (for plaintiff).
Now that the parties have shown they have standing to sue, I conclude that the court has jurisdiction to hear the case. In addition, I conclude that the Public Service Commission violated TDS's rights under the Telecommunications Act and the due process clause when it made determinations about the rates that plaintiff could charge without giving TDS an opportunity to respond to all of the evidence and argument presented by plaintiff. Accordingly, I will vacate the order at issue (the UNE Compliance Order) and remand the case to give TDS and the other intervening defendants an opportunity to be heard.
OPINIONIn response to the April 30 order, plaintiff and the intervening defendants have each submitted affidavits showing that the determinations they are challenging caused them economic harm. See Affs. of Michael Starkey, dkt. 81, 84; Aff. of Barbara Smith, dkt. # 86; Aff. of Dale Lundy, dkt. # 87, Aff. of Thomas Makarewicz, dkt. # 88. Although defendants do not dispute the evidence submitted by the other parties, they argue that the court should not consider the affidavits because they were not part of the record before the agency. In addition, defendants argue that plaintiff's affidavits "directly conflict" with the position plaintiff took before the Federal Communications Commission.
With respect to their first argument, defendants rely on TCG Milwaukee, Inc. v. Public Service Commission of Wisconsin, 980 F.Supp. 992, 998 (W.D.Wis.1997), in which I noted, "Generally, review proceedings are confined to the record created in the administrative agency." It is not necessary to repudiate that statement in order to consider the parties' affidavits. Their purpose is not to demonstrate why the commission erred, but to comply with this court's order directing the parties to submit evidence showing that they had standing to challenge the commission's decision. On that issue, the record would be useless because the injury did not occur until the commission had issued its decision, which was after the administrative record was compiled. Allowing the parties to submit new materials on this issue does not evince a lack of deference to the commission or give plaintiff and intervening defendants an unfair advantage. It simply allows the parties to show the existence of a case or controversy within the meaning of Article III.
Although defendants contend that plaintiff's affidavits conflict with its earlier position and for that reason should be ignored, they do not point to any factual discrepancies between the affidavits plaintiff filed in this court and those that it filed with the FCC in connection with an application to provide long distance service. Rather, defendants are restating the judicial estoppel argument that they made in their initial briefs, which is that plaintiff's current legal position (that the rates set by the Public Service Commission violate federal law) is inconsistent with its earlier representation to the FCC that these rates complied with § 271 of the 1996 Act. It is unnecessary to resolve that question for the purpose of deciding whether plaintiff has standing to sue. Accordingly, because defendant has not disputed the evidence submitted by plaintiff and intervening defendants that shows that they suffered economic harm as a result of the commission's decisions, I conclude that the parties have established their standing to sue.
Defendants argue in the alternative that even if plaintiff and intervening defendants have standing, this court still "lacks jurisdiction" to hear this case. Dfts.' Br., dkt. # 92, at 3, 8. They rely primarily on AT&T Communications of Illinois v. Illinois Bell Telephone Co., 349 F.3d 402 (7th Cir.2003), in which the plaintiff brought a pre-enforcement challenge to an Illinois statute that established a method for determining the rates that the plaintiff could charge its competitors for use of its network. The plaintiff argued that the state's calculation of fill factors and depreciation was inconsistent with the "total element long-run incremental cost" (TELRIC), 47 C.F.R. §§ 51.505-515, under which the commission must "set prices based on the long-run costs that would be incurred to produce the services in question using the most efficient telecommunications technology now available, and the most efficient network configuration." AT&T, 349 F.3d at 405. The district court agreed and invalidated the statute. In reviewing the district court's decision, the court of appeals stated that the plaintiff's failure to wait to file suit until the state commission had applied the statute had caused "unnecessary troubles":
Congress provided for federal judicial review of rates set by state commissions; it did not provide for review of individual factors that influence those rates. A lower fill factor, which elevates the rate, may be offset by other factors that depress it. As long as the final rate comports with TELRIC, why should it matter what role particular intermediate factors played? Any effort to analyze a factor in isolation poses a distinct risk of generating an advisory opinion, as well as a certainty of complicating review of the rate ultimately announced. A different way to put this is that review of agency action usually is limited to the agency's final decision, and the choice of one or two legal criteria that the agency will use along the way cannot be called a "final" decision. See, e.g., FTC v. Standard Oil Co. of California, 449 U.S. 232, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980). By the time the district court entered its injunction, the ICC had completed its work (the statute gave it only 30 days, after all); it would have been easy enough to wait...
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Tds Metrocom, LLC v. Bridge
...it did not provide for review of individual factors that influence those rates.") (emphasis in original). However, in Wisconsin Bell, 334 F.Supp.2d at 1136, I concluded that "a court cannot give meaningful review to a rate without looking at the factors that affect the rate." Because courts......