United States Court of Appeals
For the First Circuit
No. 06-2151
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.
Before
Boudin, Chief Judge,
Lynch and Lipez, Circuit Judges.
ORDER ON REHEARING
Entered: November 20, 2007
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 established by section 271. We held that even if this were so (which we did not decide),
the Maine PUC could not adopt requirements (like altered definitions of required elements or a
pricing scheme at odds with that prescribed by the FCC) that would place the state commission in
direct conflict with overriding federal agency determinations. Whether Maine law provides the Maine
PUC with the authority to act to require Verizon's compliance with federal requirements in a matter
that may affect state interests is an issue that was not briefed by Verizon or decided by us.
Perhaps the Maine PUC lacks state law authority to require a carrier to provide
elements consistent with federal standards; or perhaps the threat of state-by-state enforcement
threatens inconsistencies so dangerous that a form of "field" preemption is required to protect federal
interests, rather than merely a ban on state orders that conflict with FCC determinations. But Verizon
developed neither argument in its earlier briefs. Even in its petition for rehearing it attempts neither
argument.
So Verizon is wrong in saying that there is "nothing for the district court to do"
beyond vacating the Maine PUC orders: Verizon and the Maine PUC disagree as to whether certain
disputed elements are required by section 271; and only the FCC can provide a definitive resolution
of these technical issues which our decision did not resolve. Verizon says that any decision reached
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by the FCC would be reviewable directly in a circuit court, 28 U.S.C. § 2342 (2000), but this does
not preclude the reference by the district court. AT&T v. FCC, 551 F.2d 1287 (D.C. Cir. 1977).
Verizon briefly suggests that the Maine PUC lacks standing to seek the FCC's
specification of the elements prescribed under section 271; Verizon suggests that only a competing
carrier deprived of required elements could make such a request. This argument was not made in
Verizon's briefs; it is not developed in its petition; and it is far from self-evident, given that the
facilities are used in common for intrastate as well as interstate communication.
Verizon also argues that it could be prejudiced because, during the FCC reference,
it might be subject to the Maine PUC's outstanding order that it provide the elements in dispute
between the parties. But the district court's refusal to stay the Maine PUC order during the district
court litigation must be reexamined because the court rested importantly on the premise that the
Maine PUC had authority to order elements beyond those required by section 271 and a pricing
scheme rejected by the FCC--a premise that our decision has disapproved.
Whether interim provision of disputed elements should be continued or re-
implemented, and if so on what terms and conditions, is a matter for the district court in the first
instance. A central issue is whether the Maine PUC is likely to prevail in the FCC proceeding.
Verizon is also be free to pursue in the district court its standing and state authority arguments--absent
which we would expect the district court to retain jurisdiction and seek a prompt answer from the
FCC on the merits.
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The petition for rehearing is denied. The mandate shall issue forthwith.
By the Court:
/s/
Richard Cushing Donovan, Clerk
[Certified copies to Hon. Gene Carter, Hon. Paul J. Barbadoro, Mr. William Brownell, Clerk, United
States District Court for the District of Maine and Mr. James Starr, Clerk, United States District Court
for the District of New Hampshire. Copies to Ms. Connors, Mr. Boecke, Mr. Angstreich, Ms. Dunbar,
Mr. Hewitt, Mr. Beausejour, Ms. Bragdon, Ms. Hagler, Mr. Samp, Mr. Blau, Mr. Rosenzweig, Mr.
Bobeck, Mr. Nosal, Mr. Donovan, Mr. Livernois & Mr. DelVecchio.]
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