CGM, LLC v. BellSouth Telecommunications, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

CGM, LLC, 
Plaintiff-Appellant,
v.
BELLSOUTH TELECOMMUNICATIONS,
INCORPORATED; AT&T BILLING  No. 10-1693
SOUTHEAST, LLC, a/k/a AT&T
Billing Southeast, Inc.; AT&T
CORPORATION,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert J. Conrad, Jr., Chief District Judge.
(3:09-cv-00377-RJC-DCK)

Argued: September 20, 2011

Decided: December 8, 2011

Before SHEDD and WYNN, Circuit Judges, and
Damon J. KEITH, Senior Circuit Judge of the United States
Court of Appeals for the Sixth Circuit,
sitting by designation.

Affirmed by published opinion. Judge Wynn wrote the opin-
ion, in which Judge Shedd and Senior Judge Keith concurred.
2 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS
COUNSEL

ARGUED: Ira Thane Kasdan, KELLEY, DRYE & WAR-
REN, LLP, Washington, D.C., for Appellant. Dennis Fried-
man, MAYER BROWN, LLP, Chicago, Illinois, for
Appellees. ON BRIEF: Barbara A. Miller, KELLEY, DRYE
& WARREN, LLP, Washington, D.C., for Appellant. Patrick
W. Turner, AT&T SOUTH CAROLINA, Columbia, South
Carolina; Jeffrey M. Strauss, MAYER BROWN, LLP, Chi-
cago, Illinois, for Appellees.

OPINION

WYNN, Circuit Judge:

"The Telecommunications Act of 1996 . . . represents a
comprehensive effort by Congress to bring the benefits of
deregulation and competition to all aspects of the telecommu-
nications market in the United States, including especially
local markets." Goldwasser v. Ameritech Corp., 222 F.3d 390,
391 (7th Cir. 2000). The 1996 Act imposes new duties on
incumbent local telecommunications carriers, which had pre-
viously enjoyed monopolies in local telecommunications mar-
kets; those duties include the duty to sell telecommunications
services at wholesale rates to would-be competitors for resale
to consumers.

In this case, CGM, LLC, a billing agent for competitive
local exchange carriers ("competitive LECs"), brought a
declaratory judgment action against BellSouth Telecommuni-
cations, Inc., an incumbent local exchange carrier
("incumbent LEC"). CGM claimed that BellSouth offered
long-term promotional discounts to its own customers but
failed, in violation of the 1996 Act and rules implementing it,
to pass the full value of those discounts on to CGM’s client
competitive LECs, none of which is a party to this suit.
 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS 3
Because CGM has no statutory standing under either the 1996
Act or a seemingly broadly worded but nonetheless inapplica-
ble statute from the Federal Telecommunications Act of 1934,
we affirm the district court’s dismissal of CGM’s complaint.

I.

In an effort to introduce competition into local telephone
markets, Congress enacted the 1996 Act, which amended and
supplemented the 1934 Act. See BellSouth Telecomms., Inc.
v. Sanford, 494 F.3d 439, 441, 444 (4th Cir. 2007). The 1996
Act requires, among other things, that large telephone compa-
nies with existing telecommunications infrastructure share
that infrastructure with their smaller competitors. Upon
request, the incumbent LECs must provide network access to
their competitors, the competitive LECs. Id. at 444-45; 47
U.S.C. § 251(c)(2).

In connection with the mandate to provide competitive
LECs with access, the 1996 Act also requires incumbent
LECs to offer competitive LECs "resale at wholesale rates
any telecommunications service that the [incumbent LEC]
provides at retail to subscribers who are not telecommunica-
tions carriers . . . ." Id. § 251(c)(4). Put differently, competi-
tive LECs may purchase services from incumbent LECs at a
discounted rate and then resell those services to individual
customers at market rates.

To implement the provisions of the 1996 Act, the Federal
Communications Commission ("FCC") promulgated regula-
tions. See 47 C.F.R. § 51.1. Under those regulations, the "re-
sale duty" extends to promotional offers incumbent LECs
provide to their retail customers lasting longer than ninety
days. 47 C.F.R. § 51.613(a). 47 C.F.R. § 51.613(a) prevents
incumbent LECs from devising retail promotional schemes
enabling them to offer discounts to their retail customers
without extending the value of those discounts to competitive
LECs.
4 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS
The terms and conditions of the access arrangements
between incumbent LECs and competitive LECs are devel-
oped through private contracts know as "interconnection
agreements." 47 U.S.C. § 252; Verizon Md., Inc. v. Global
NAPs, Inc., 377 F.3d 355, 364 (4th Cir. 2004). Interconnec-
tion agreements can be reached through voluntary negotiation
or compulsory arbitration, but regardless of whether negoti-
ated or arbitrated, all interconnection agreements must be sub-
mitted to and approved by the appropriate state utilities
commissions. Id.; 47 U.S.C. § 252(e).1

Interconnection agreements, not the general duties men-
tioned in Section 251(c), govern incumbent LECs’ 1996 Act
resale duties. In other words, "section 251(c)’s obligations are
not generally self-executing. Rather, incumbents are required
to implement them through voluntary good-faith negotiations
with prospective entrants . . . ." Peter W. Huber et al., Federal
Telecommunications Law § 5.6.2 (2d ed. Supp. 2011); cf.
Verizon Md., 377 F.3d at 364 ("Once the [interconnection
agreement] is approved, the 1996 Act requires the parties to
abide by its terms. Interconnection agreements are thus the
vehicles chosen by Congress to implement the duties imposed
in § 251." (internal citation omitted)).

BellSouth provides local exchange telephone service in a
nine-state region in the southeastern United States.2 In each of
1
The nature of the review varies, however, depending on whether the
interconnection agreement has been negotiated or arbitrated. Negotiated
agreements are reviewed simply to ensure that the interconnection agree-
ment does not discriminate against a non-party carrier and that the inter-
connection agreement is not inconsistent with the public interest,
convenience, or necessity. 47 U.S.C. § 252(e)(2). By contrast, an arbi-
trated agreement is reviewed to ensure its conformity with the require-
ments of Section 251. Id.
2
AT&T Corp. and AT&T Billing Southeast, LLC are affiliates of Bell-
South. Because there are no issues on appeal that specifically relate to
either AT&T Corp. or AT&T Billing, we generally refer only to Bell-
South.
 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS 5
those states, BellSouth operates as an incumbent LEC. CGM
is a billing agent for certain unidentified competitive LEC
resellers of BellSouth telecommunications services in the
nine-state BellSouth region. CGM itself, however, provides
no telecommunications services.

CGM is neither an incumbent LEC nor a competitive LEC
and does not assert that it is a party to an interconnection
agreement. Nevertheless, in 2009, CGM filed a "Complaint
for Expedited Declaratory Judgment" in the Western District
of North Carolina. J.A. 10. CGM is the only named plaintiff,
and nothing in the record indicates that CGM was authorized
to bring, or was in fact bringing, its suit on behalf of anyone
other than itself. CGM’s primary grievance: BellSouth is
overcharging for its services to competitive LECs in violation
of 47 U.S.C. § 251(c)(4) and 47 C.F.R. § 51.613(a). Specifi-
cally, CGM contends that BellSouth provided cash-back pro-
motions to its retail customers but provided CGM’s
competitive LEC clients with only around eighty percent of
the value of those promotions. CGM argues that, absent a
contrary determination by the applicable state utilities com-
mission, the competitive LECs are entitled to the full value of
those promotions.

Significantly, CGM does not contend that BellSouth owes
it money directly. Instead, CGM maintains that BellSouth
owes CGM’s competitive LEC customers over $14 million as
a consequence of this overcharging dispute.3 According to
CGM, those competitive LECs in turn owe CGM over
$360,000 in fees. This is because CGM is paid by its client
competitive LECs based in part on the amount of money that
CGM obtains for the competitive LECs from "Credits/
Rebates/Cashbacks/Winbacks/Offsets" that BellSouth pro-
3
We note that CGM also alleged in its complaint that "the total amount
of money currently in dispute is approximately $10.9 million . . . ." J.A.
16. For purposes of our analysis, however, the precise amount is irrele-
vant.
6 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS
vides to its retail customers and is thus obligated to pass on
to the competitive LECs. J.A. 12. In its complaint, CGM pri-
marily seeks a declaratory judgment that BellSouth "must
credit the CGM [competitive LECs] the full, dollar for dollar,
value of the credit offered to BellSouth’s retail customers in
the absence, as here, of [its] having first proved to the appro-
priate regulatory body that [its] contrary practice to date is
reasonable and nondiscriminatory as required by Sanford and
47 C.F.R. § 51.613(b) . . . ." J.A. 17.

In response, BellSouth filed a motion to dismiss CGM’s
complaint under Federal Rule of Civil Procedure 12(b)(6).
BellSouth argued that CGM lacks standing to assert its claims
and that it fails to state a claim upon which relief can be
granted. With regard to standing specifically, BellSouth con-
tended that the pertinent inquiry is "‘whether the . . . statutory
provision on which the claim rests properly can be understood
as granting persons in the plaintiff’s position a right to judicial
relief.’" J.A. 70 (quoting Warth v. Seldin, 422 U.S. 490, 498
(1975)). BellSouth maintained that "[i]t is not sufficient to
allege—as CGM does (Opp. 6 n.5)—that the defendant is the
‘but for’ cause of some alleged injury. The plaintiff must have
a basis for seeking redress under the statute on which the
claim rests. . . . CGM has no rights under the 1996 Act; it thus
also lacks ‘standing’ to sue . . . ." J.A. 204.

A magistrate judge issued a memorandum and recommen-
dation to grant BellSouth’s motion, to which CGM objected.
Nevertheless, the district court granted BellSouth’s motion to
dismiss on the basis that CGM lacked standing to bring its
claims. In essence, the district court held that the 1996 Act
granted rights and obligations to specific parties and created
a particular framework within which those parties may assert
violations of those rights and obligations. Because CGM is
not a party with rights under the 1996 Act, it has no standing
to assert its claims, which are based on alleged violations of
duties arising under the 1996 Act. And the district court deter-
mined that a general redress provision in the 1934 Act pro-
 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS 7
vided no lifeline to CGM’s failed claims. The district court
further held that the Declaratory Judgments Act provided no
independent basis for CGM’s suit. CGM appealed.

II.

We review de novo the district court’s grant of BellSouth’s
motion to dismiss. Sucampo Pharm., Inc. v. Astellas Pharma,
Inc., 471 F.3d 544, 550 (4th Cir. 2006). When ruling on a
Rule 12(b)(6) motion to dismiss, "a judge must accept as true
all of the factual allegations contained in the complaint."
Erickson v. Pardus, 551 U.S. 89, 94 (2007). Further, "like the
district court, [we] draw all reasonable inferences in favor of
the plaintiff." Nemet Chevrolet, Ltd. v. Consumeraffairs.com,
Inc., 591 F.3d 250, 253 (4th Cir. 2009).

The district dismissed under Civil Procedure Rule 12(b)(6),
that is, for "failure to state a claim upon which relief can be
granted[.]" Fed. R. Civ. P. 12(b)(6). However, in its decision,
the district court focused on standing, which is generally asso-
ciated with Civil Procedure Rule 12(b)(1) pertaining to sub-
ject matter jurisdiction. See, e.g., White Tail Park, Inc. v.
Stroube, 413 F.3d 451, 459 (4th Cir. 2005). That is because
"Article III gives federal courts jurisdiction only over cases
and controversies," and standing is "an integral component of
the case or controversy requirement." Miller v. Brown, 462
F.3d 312, 316 (4th Cir. 2006) (internal quotation marks omit-
ted).

Nevertheless, the district court correctly focused on Civil
Procedure Rule 12(b)(6) because the standing inquiry at the
heart of this case is statutory standing—a concept distinct
from Article III and prudential standing. And typically, "[a]
dismissal for lack of statutory standing is effectively the same
as a dismissal for failure to state a claim." Baldwin v. Univ.
of Pittsburgh Med. Ctr., 636 F.3d 69, 73 (3d Cir. 2011). See
also Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021, 1024
(9th Cir. 2009) ("[A] dismissal for lack of statutory standing
8 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS
is properly viewed as a dismissal for failure to state a claim
rather than a dismissal for lack of subject matter jurisdic-
tion.").

A.

Constitutional standing and prudential standing are well-
covered ground. To possess constitutional standing, a plaintiff
must be injured by the defendant, and a federal court must be
able to redress the injury. See, e.g., In re Mutual Funds Inv.
Litig., 529 F.3d 207, 216 (4th Cir. 2008). Prudential standing
encompasses several judicially-created limits on federal juris-
diction, "such as the general prohibition on a litigant’s raising
another person’s legal rights, the rule barring adjudication of
generalized grievances more appropriately addressed in the
representative branches, and the requirement that a plaintiff’s
complaint fall within the zone of interests protected by the
law invoked." Allen v. Wright, 468 U.S. 737, 751 (1984).

Less well-known is the concept of statutory standing,
which is perhaps best understood as not even standing at all.
Statutory standing "applies only to legislatively-created
causes of action" and concerns "whether a statute creating a
private right of action authorizes a particular plaintiff to avail
herself of that right of action." Radha A. Pathak, Statutory
Standing and the Tyranny of Labels, 62 Okla. L. Rev. 89, 91
(2009). This Court has framed the statutory standing inquiry
as whether the plaintiff "is a member of the class given
authority by a statute to bring suit . . . ." In re Mutual Funds,
529 F.3d at 216 (examining "statutory standing" under ERISA
separately from Article III standing and deeming statutory
standing to exist). As the Third Circuit summed it up in Gra-
den v. Conexant Sys., Inc.:

Though all are termed "standing," the differences
between statutory, constitutional, and prudential
standing are important. Constitutional and prudential
standing are about, respectively, the constitutional
 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS 9
power of a federal court to resolve a dispute and the
wisdom of so doing. Statutory standing is simply
statutory interpretation: the question it asks is
whether Congress has accorded this injured plaintiff
the right to sue the defendant to redress his injury.

496 F.3d 291, 295 (3d Cir. 2007) (internal citations omitted).

In a case where the question is "whether Congress intended
to confer standing on a litigant like [the one at bar] to bring
an action under [the statute at issue]", "[o]ur task is essentially
one of statutory construction." Washington-Dulles Transp.,
Ltd. v. Metro. Washington Airports Auth., 263 F.3d 371, 377
(4th Cir. 2001). "Normally, where the statutory language pro-
vides a clear answer, our analysis begins and ends with that
language." Wilmington Shipping Co. v. New Eng. Life Ins.
Co., 496 F.3d 326, 339 (4th Cir. 2007). In the face of
ambiguities, we then look to legislative intent. Id.; see also
Graden, 496 F.3d at 295 ("[W]e employ the usual tools of
statutory interpretation. We look first at the text of the statute
and then, if ambiguous, to other indicia of congressional
intent such as the legislative history.").

III.

A.

In this appeal, CGM argues that it has standing under the
1934 Act to challenge BellSouth’s alleged failure to comply
with the 1996 Act. CGM relies specifically on 47 U.S.C.
§ 401(b), which states in pertinent part:

If any person fails or neglects to obey any order of
the [FCC] other than for the payment of money,
while the same is in effect, the [FCC] or any party
injured thereby . . . may apply to the appropriate dis-
trict court of the United States for the enforcement
of such order.
10 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS
Id.

The term "order" is not defined, and there is disagreement
amongst the circuits as to what constitutes an "order" for Sec-
tion 401(b) purposes. The First Circuit, in an opinion authored
by then-Judge, now-Justice Breyer, has held that Section
401(b) may be used to enforce only orders that emanate from
the FCC’s adjudicatory process. New Eng. Tel. & Tel. Co. v.
Pub. Utils. Comm’n of Me., 742 F.2d 1, 4–7 (1st Cir. 1984).
Adjudicatory orders are party-specific and "‘concerned with
the determination of past and present rights and liabilities.’"
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 219 (1988)
(quoting with approval the 1947 Attorney General’s Manual
on the Administrative Procedure Act). The First Circuit held
that Section 401(b) may not be used to enforce FCC orders
promulgated through the Commission’s rulemaking process.
New Eng. Tel. & Tel., 742 F.2d at 4–7. Rulemaking orders are
general and "focus on policy considerations and results . . . ."
San Juan Cable LLC v. Puerto Rico Tel. Co., Inc., 612 F.3d
25, 33 n.3 (1st Cir. 2010).

By contrast, other circuits have held that a rule resulting
from a rulemaking proceeding can be considered an order for
purposes of Section 401(b). See, e.g., Hawaiian Tel. Co. v.
Public Utils. Comm’n, 827 F.2d 1264, 1270-72 (9th Cir.
1987). See also Chesapeake & Potomac Tel. Co. v. Public
Serv. Comm’n, 748 F.2d 879, 881 (4th Cir. 1984), vacated
and remanded, 476 U.S. 445 (1986). Those circuits, in other
words, do not limit Section 401(b)’s application to adjudica-
tory orders. Notably, however, even courts that have taken a
more expansive view of the term "order" have indicated that
private enforcement actions under Section 401(b) are avail-
able only when the order or rule at issue "requires a defendant
to take concrete actions." Mallenbaum v. Adelphia Commc’ns
Corp., 74 F.3d 465, 468 (3d Cir. 1996). See also Hawaiian
Tel., 827 F.2d at 1272 ("The language of the particular order
in question, and the proceedings leading up to it, demonstrate
that the FCC intended [it] to require particular actions be
 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS 11
taken by the [defendant] . . . . Under the circumstances, we
conclude that [the FCC order at issue] was appropriately
interpreted as an ‘order’ for enforcement by injunction in the
district court."). Private enforcement is thus improper when a
rule or order is unrelated to specific rights or obligations of
the litigants and is thus "more akin to a general rulemaking
than to an order . . . ." Mallenbaum, 74 F.3d at 469.

In this case, the FCC "orders" on which CGM seeks to rely
are the "Local Competition Order," In the Matter of Imple-
mentation of the Local Competition Provisions in the Tele-
communications Act of 1996, 11 F.C.C.R. 15,499, 1996 WL
452885 (Aug. 8, 1996), and 47 C.F.R. § 51.613. The Local
Competition Order is a general "First Report and Order" lay-
ing out policy considerations, public feedback, and promul-
gating rules. Id. It cannot accurately be characterized as
setting out specific rights and obligations of these litigants
any more so than 47 C.F.R. § 51.613, which was promulgated
in the Local Competition Order. See Mallenbaum, 74 F.3d at
469.

Further, the Local Competition Order suggests that neither
it nor 47 C.F.R. § 51.613 can support CGM’s standing claim.
The Local Competition Order makes clear, for example, that
the rules regarding discount and promotion restrictions are
"best left to state commissions, which are more familiar with
the particular business practices of their incumbent LECs and
local market conditions." Local Competition Order, 1996 WL
452885, at *277. Further, in the Local Competition Order, the
FCC "emphasize[d] that, under the statute, parties may volun-
tarily negotiate agreements ‘without regard to’ the rules that
we establish under sections 251(b) and (c)." Id., at *18
(emphasis added). Therefore, in regulating the 1996 Act, the
FCC established a flexible framework to match the flexibility
that Congress embedded in the 1996 Act itself.

In the 1996 Act at 47 U.S.C § 251(c), Congress set out
incumbent LEC obligations to resell telecommunications ser-
12 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS
vices at discounted rates. Notably, Congress made clear in the
very next section of the 1996 Act that "an incumbent local
exchange carrier may negotiate and enter into a binding
agreement with the requesting [competitive LEC or competi-
tive LECs] without regard to the standards set forth in sub-
sections (b) and (c) of section 251 of this title." 47 U.S.C
§ 252(a) (emphasis added). In other words, Congress
expressly allowed incumbent LECs and competitive LECs
entering into negotiated (as opposed to arbitrated) intercon-
nection agreements to contract freely around the resale obliga-
tions.4 See, e.g., Federal Telecommunications Law § 5.6.2
("the statute expressly permits the negotiating parties to reach
agreement ‘without regard’ to any specific statutory obliga-
tions"); SBC Commc’ns Inc. v. FCC, 407 F.3d 1223, 1226
(D.C. Cir. 2005) ("The Act also makes clear that [incumbent
LECs and competitive LECs] may enter [interconnection
agreements] that differ from the unbundling requirements of
§§ 251(b) or (c). See id. at § 252(a)(1)."); Law Offices of Cur-
tis V. Trinko, L.L.P. v. Bell Atlantic Corp., 305 F.3d 89, 104
(2d Cir. 2002) ("[T]he fact that the Telecommunications Act
allows parties to negotiate interconnection agreements with-
out regard to subsections (b) and (c) of section 251 indicates
that Congress envisioned the possibility that the negotiated
parts of the interconnection agreement could result in a differ-
ent set of duties than those defined by the statute." (internal
citation omitted)), rev’d on other grounds, Verizon Commc’ns
Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398
(2004).
4
This Court’s opinion in AT&T Commc’ns of the S. States, Inc. v. Bell-
South Telecomms., Inc., 229 F.3d 457 (2000), in no way holds other-
wise—nor could it, in the face of the clear statutory language. Instead, in
that opinion, we simply noted that interconnection agreement provisions
that are "not arbitrated are also not necessarily negotiated ‘without regard
to the standards set forth in’" Section 251. Id. at 465. "In other words,
some provisions may be negotiated and agreed upon ‘with regard’ to the
1996 Act and law thereunder . . . ." Id.
 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS 13
Indeed, 47 C.F.R. § 51.613, upon which CGM seeks to rely
for purposes of Section 401(b) standing, goes to these wide-
open resale obligations. The regulation, titled "Restrictions on
resale," provides additional detail regarding the resale duty
addressed in Section 251(c). 47 C.F.R. § 51.613(a). Given
that Congress expressly allowed negotiating parties to con-
tract around Section 251(c)’s resale obligations, and given
that the FCC specifically "emphasize[d]" that "parties may
voluntarily negotiate agreements ‘without regard to’ the rules
that we establish under sections 251(b) and (c)", we cannot
read 47 C.F.R. § 51.613 as an order setting out specific rights
or obligations of these litigants. We find it telling that, for all
we know (based on CGM’s nonspecific allegations), every
one of CGM’s competitive LEC customers could have a
negotiated interconnection agreement that exempts BellSouth
from many of Section 251(c)’s resale requirements and the
related 47 C.F.R. § 51.613 regulation. Under such circum-
stances, BellSouth would have no obligations—and CGM,
certainly, no rights. Consequently, 47 C.F.R. § 51.613 is not
an order for Section 401(b) purposes and cannot provide
CGM with standing. See Mallenbaum, 74 F.3d at 469.

Further, the obligations set out in Section 251(c) are not
free-standing; instead, they exist only to the extent a competi-
tive LEC and incumbent LEC enter into an interconnection
agreement. "For companies that are subject to them, section
251(c)’s obligations are generally not self-executing. Rather,
incumbents are required to implement them through voluntary
good-faith negotiations with prospective entrants . . . ." Fed-
eral Telecommunications Law § 5.6.2. Stated differently,
"[w]hile the duties regulating [incumbent LECs] enumerated
in subsections (b) and (c) of section 251 appear at first glance
to be free-standing, in practice, section 251 envisions that
these duties will be implemented through state approved con-
tracts between the carrier requesting interconnection and the
[incumbent LEC]." Trinko, 305 F.3d at 103. See also Verizon
Md., 377 F.3d at 364 ("Interconnection agreements are thus
14 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS
the vehicles chosen by Congress to implement the duties
imposed in § 251.").

Again, CGM has no interconnection agreement with Bell-
South. CGM has not brought this suit pursuant to any inter-
connection agreement. And no party to an interconnection
agreement is a plaintiff in CGM’s suit. Because Section
251(c)’s resale duties and the related 47 C.F.R. § 51.613 are
not free-standing but exist, to the extent that they do at all
(given parties’ freedom to contract around them), only as
embodied in interconnection agreements, CGM has no rights,
and BellSouth no duties, under the circumstances of this case.

B.

CGM also asserts that it has standing under the Declaratory
Judgments Act, 28 U.S.C. § 2201. That act, however, is reme-
dial only and neither extends federal courts’ jurisdiction nor
creates any substantive rights. Skelly Oil Co. v. Phillips Petro-
leum Co., 339 U.S. 667, 671-72 (1950); Volvo GM Heavy
Truck Corp. v. U.S. Dep’t of Labor, 118 F.3d 205, 210 (4th
Cir. 1997). Stated differently, "[a] request for declaratory
relief is barred to the same extent that the claim for substan-
tive relief on which it is based would be barred." Int’l Ass’n
of Machinists & Aerospace Workers v. Tenn. Valley Auth.,
108 F.3d 658, 668 (6th Cir. 1997). Here, CGM’s substantive
claims fail. Accordingly, so must its Declaratory Judgments
Act claim.

IV.

At the end of the day, CGM seeks to shoehorn claims
against its own competitive LEC clients into a claim against
BellSouth. In reality, CGM appears to complain that its own
client competitive LECs have failed to enforce their rights
under the 1996 Act against BellSouth. Yet neither the 1996
Act nor a seemingly broadly worded but nonetheless inappli-
cable statute from the Federal Telecommunications Act of
 CGM, LLC v. BELLSOUTH TELECOMMUNICATIONS 15
1934 provides statutory standing for CGM to bring this action
against Bellsouth. Accordingly, we hold that the district court
properly dismissed this case.

AFFIRMED