BellSouth Telecommunications, Inc. v. North Carolina Utilities Commission

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KING, Circuit Judge,

dissenting:

For the reasons more fully articulated in my opinion in the companion case, Bell Atlantic Maryland, Inc. v. MCI Worldcom, Inc., 2001 WL 123663, (4th Cir.2001) (King, J., dissenting), I also must dissent in this case. Once again, I heed — and the majority dismisses — the clear admonition of Justice Scalia: “[T]here is no doubt ... that if the federal courts believe a state commission is not regulating in accordance with federal policy they may bring it to heel.” AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 379 n. 6, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999). And, again, I agree with the reasoned decisions of our sister circuits that have considered these issues, *279while the majority isolates itself from them.

In my view, the federal courts possess jurisdiction pursuant to the Telecommunications Act (“Act”), specifically 47 U.S.C. § 252(e)(6), to review the determinations made by State commissions in enforcing interconnection agreements. See Bell Atlantic McL, 2001 WL 123663 (King, J., dissenting); Southwestern Bell Tel. Co. v. Brooks Fiber Communications of Okla., Inc., 235 F.3d 493, 496-97 (10th Cir.2000); Southwestern Bell Tel. Co. v. Connect Communications Corp., 225 F.3d 942, 947 (8th Cir.2000); MCI Telecomms. Corp. v. Illinois Bell Tel. Co., 222 F.3d 323, 337-38 (7th Cir.2000), cert. denied sub nom. Public Serv. Comm’n v. Wisconsin Bell, Inc., — U.S.-, 121 S.Ct. 896, 148 L.Ed.2d 802 (2001), and cert, denied sub nom. Illinois Commerce Comm’n v. MCI Telecomms. Corp., 121 S.Ct. 896 (2001); Southwestern Bell Tel. Co. v. Public Util. Comm’n, 208 F.3d 475, 479-80 (5th Cir.2000).1 Moreover, I believe that a State commission waives sovereign immunity by electing to participate in the regulation of local telecommunications under the Act. See Bell Atlantic Md., 2001 WL 123663 (King, J., dissenting); AT&T Communications v. BellSouth Telecomms. Inc., 238 F.3d 636, 2001 WL 38281, at *10 (5th Cir.2001); Illinois Bell, 222 F.3d at 342; MCI Telecomms. Corp. v. Public Serv. Comm’n, 216 F.3d 929, 938-39 (10th Cir.2000).2 The majority concludes that the district court, by deferring consideration of the Eleventh Amendment issue, “interfered with North Carolina’s sovereignty as protected by the Constitutional structure.” Ante, at 276. Although the district court should have addressed the Eleventh Amendment issue prior to its remand to the State commission, it did not, in my view, interfere with North Carolina’s sovereignty.

Because the majority reaches contrary conclusions on these issues, I respectfully dissent.

. Because the Act confers jurisdiction on federal courts, it is unnecessary to consider whether general federal question jurisdiction also is provided under 28 U.S.C. § 1331.

. Alternatively, the individual members of the State commission could have been — but were not — sued in their official capacities for in-junctive relief pursuant to Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). See Bell Atlantic Md., 2001 WL 123663 (King, J., dissenting); AT&T Communications, 238 F.3d 636, 2001 WL 38281, at *11; Illinois Bell, 222 F.3d at 345; Public Serv. Comm'n, 216 F.3d at 939; Michigan Bell Tel. Co. v. Climax Tel. Co., 202 F.3d 862, 867 (6th Cir.), cert. denied sub nom. Strand v. Michigan Bell Tel., - U.S. -, 121 S.Ct. 54, 148 L.Ed.2d 22 (2000).