U.S. West Communications, Inc. v. Sprint Communications Co.

                                                                F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                                   PUBLISH
                                                                  JAN 4 2002
                    UNITED STATES COURT OF APPEALS
                                                            PATRICK FISHER
                                                                      Clerk
                                TENTH CIRCUIT

U.S. WEST COMMUNICATIONS, INC., a Colorado
corporation,

      Plaintiff-Appellee,

USA and FEDERAL COMMUNICATIONS
COMMISSION,

      Plaintiffs-Intervenors,

v.                                                      No. 00-1401

SPRINT COMMUNICATIONS COMPANY, L.P., a
limited partnership,

      Defendant-Appellant,

ROBERT J. HIX, R. BRENT ALDERFER, and
VINCENT MAJKOWSKI, Commissioners of the Public
Utilities Commission of the State of Colorado; PUBLIC
UTILITIES COMMISSION FOR THE STATE OF
COLORADO; TCG COLORADO, a New York General
Partnership; TELEPORT COMMUNICATIONS
GROUP, INC., a Delaware corporation; ICG TELECOM
GROUP, INC., a Colorado corporation; AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES,
INC., a Colorado corporation; WORLDCOM
TECHNOLOGIES, INC., a Delaware corporation; MCI
TELECOMMUNICATIONS CORPORATION, a
Delaware corporation; MCIMETRO ACCESS
TRANSMISSION SERVICES, INC., a Delaware
corporation,

      Defendants.
U.S. WEST COMMUNICATIONS, INC., a Colorado
corporation,

      Plaintiff-Counter-Defendant-Appellee,

USA and FEDERAL COMMUNICATIONS
COMMISSION,

      Plaintiffs-Intervenors,

v.                                                      No. 00-1402

ROBERT J. HIX, R. BRENT ALDERFER and
VINCENT MAJKOWSKI, Commissioners of the Public
Utilities Commission of the State of Colorado; PUBLIC
UTILITIES COMMISSION FOR THE STATE OF
COLORADO; TCG COLORADO, a New York General
Partnership; TELEPORT COMMUNICATIONS
GROUP, INC., a Delaware corporation; ICG TELECOM
GROUP, INC., a Colorado corporation; AT&T
COMMUNICATIONS OF THE MOUNTAIN STATES,
INC., a Colorado corporation; SPRINT
COMMUNICATIONS COMPANY, L.P., a limited
partnership,

      Defendants,

WORLDCOM TECHNOLOGIES, INC., a Delaware
corporation; MCI TELECOMMUNICATIONS
CORPORATION, a Delaware corporation; MCIMETRO
ACCESS TRANSMISSION SERVICES, INC., a
Delaware corporation; MFS INTELENET OF
COLORADO, INC., a Delaware corporation,

      Defendants-Counter-Claimants-Appellants.
.




                                        2
              APPEAL FROM UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                           (D.C. No. 97-D-152)


David P. Murray, Randy Branitsky, and Kevin M. Miller, Willkie Farr & Gallagher, of
Washington D.C., for the appellant Sprint Communications Company L.P.

Terri L. Mascherin, Andrew M. Spangler, Jr., and John J. Hamill, Jenner & Block, LLC,
of Chicago, Illinois; and William Single, IV, Brian J. Leske, and Thomas F. O'Neill III,
Worldcom, Inc., of Washington D.C., for the appellants MCI Telecommunications
Corporation and MCImetro Access Transmission Services, Inc.

Wendy M. Moser and Todd L. Lundy, Qwest Corporation, of Denver, Colorado; B.
Lawrence Theis, Perkins Coie LLP, of Denver Colorado; Kara M. Sacilotto, Perkins Coie
LLP, of Washington, D.C.; and Kirstin S. Dodge, Perkins Coie LLP, of Bellevue,
Washington, for the appellee Qwest Corporation.


Before BRISCOE, McKAY, and HALL,1 Circuit Judges.


BRISCOE, Circuit Judge.


      Plaintiff U.S. West Communications, Inc., now known as Qwest Corporation

(Qwest), brought these actions pursuant to 47 U.S.C. § 252(e)(6) to challenge provisions

contained in arbitrated interconnection agreements with defendants Sprint

Communications Company L.P. (Sprint), MCI Telecommunications Corporation, and

MCImetro Access Transmission Services, Inc. (collectively MCI). The district court

vacated the provisions, concluding defendant Colorado Public Utilities Commission


      1
         Honorable Cynthia Holcomb Hall, Circuit Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.

                                            3
(CPUC) overstepped its authority and acted contrary to the Telecommunications Act of

1996 in including the provisions in the agreements. Sprint and MCI appeal from that

ruling. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, reverse the judgment of

the district court, and remand with instructions to enter judgment in favor of Sprint and

MCI.

                                             I.

       This case arises out of Congress’ efforts, through the Telecommunications Act of

1996 (the Act), to increase competition in the market for local telephone service. In

AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366 (1999), the Supreme Court briefly

outlined the history of local telephone service, the impact of the Act on such service, and

the methods by which the Act allows new companies to gain entry to a local market:

               Until the 1990’s, local phone service was thought to be a natural
       monopoly. States typically granted an exclusive franchise in each local
       service area to a local exchange carrier (LEC), which owned, among other
       things, the local loops (wires connecting telephones to switches), the
       switches (equipment directing calls to their destinations), and the transport
       trunks (wires carrying calls between switches) that constitute a local
       exchange network. Technological advances, however, have made
       competition among multiple providers of local service seem possible, and
       Congress recently ended the longstanding regime of state-sanctioned
       monopolies.
               The Telecommunications Act of 1996 (1996 Act or the Act), Pub.L.
       104-104, 110 Stat. 56, fundamentally restructures local telephone markets.
       States may no longer enforce laws that impede competition, and incumbent
       LECs are subject to a host of duties intended to facilitate market entry.
       Foremost among these duties is the LEC’s obligation under 47 U.S.C.
       § 251(c) (1994 ed. Supp. II) to share its network with competitors. Under
       this provision, a requesting carrier can obtain access to an incumbent’s
       network in three ways: It can purchase local telephone services at wholesale

                                             4
       rates for resale to end users; it can lease elements of the incumbent’s
       network “on an unbundled basis”; and it can interconnect its own facilities
       with the incumbent’s network. When an entrant seeks access through any
       of these routes, the incumbent can negotiate an agreement without regard to
       the duties it would otherwise have under § 251(b) or § 251(c). See
       § 252(a)(1). But if private negotiation fails, either party can petition the
       state commission that regulates local phone service to arbitrate open issues,
       which arbitration is subject to § 251 and the FCC regulations promulgated
       thereunder.

Id. at 371-73 (footnotes omitted).

       The Act imposes three general conditions a state commission must satisfy in

arbitrating open issues regarding an interconnection agreement. First, it must “ensure that

[its] resolution and conditions meet the requirements of section 251 . . ., including the

regulations prescribed by the [FCC] pursuant to section 251.”2 47 U.S.C. § 252(c)(1).

Second, it must “establish any rates for interconnection, services, or network elements

according to subsection (d) of [section 252],” id. § 252(c)(2), which provides that

interconnection and network element charges “shall be . . . based on the cost . . . of

providing the interconnection or network element, and . . . nondiscriminatory, and . . .

may include a reasonable profit.” Third, it must “provide a schedule for implementation

of the terms and conditions by the parties to the agreement.” Id. § 252(c)(3). As long as

these three requirements are satisfied, a state commission is free, subject to the provisions


       2
          Section 251, entitled “Interconnection,” imposes a variety of duties on
telecommunications carriers in general, and local exchange carriers in particular,
including the duty to “interconnect” with each other. The apparent purpose of the section,
consistent with the Act’s goal of increasing competition, is to smooth entry of new
carriers into the market for local phone service.

                                              5
of 47 U.S.C. § 253,3 to “establish[] or enforc[e] other requirements of State law in its

review of an [interconnection agreement], including requiring compliance with intrastate

telecommunications service quality standards or requirements.” 47 U.S.C. § 252(e)(3).

       Once an interconnection agreement is arbitrated, it must be submitted to the state

commission for final approval. See 47 U.S.C. § 252(e)(1). A state commission may

reject an arbitrated agreement only if the agreement or a provision thereof fails to meet

the requirements of section 251 of the Act or the FCC regulations promulgated under the

Act. See 47 U.S.C. § 252(e)(2)(B).

       Finally, the Act provides for federal court review of interconnection agreements.

Specifically, 47 U.S.C. § 252(e)(6) authorizes “any party aggrieved by” a state

commission decision regarding an interconnection agreement to “bring an action in an

appropriate Federal district court.” For example, if a party to an arbitrated

interconnection agreement is dissatisfied with a particular provision imposed by a state

commission, it can seek review of that provision by filing suit in federal court. Federal

court review is limited to the determination of whether the agreement “meets the

requirements of section 251 . . . and . . . section [252].” Id.




       3
          Section 253, entitled “Removal of barriers to entry,” generally provides that
“[n]o State or local statute or regulation, or other State or local legal requirements, may
prohibit or have the effect of prohibiting the ability of any entity to provide any interstate
or intrastate telecommunications service.” 47 U.S.C. § 253(a).

                                               6
History of interconnection agreements and ensuing litigation

       Plaintiff Qwest is an incumbent local exchange carrier (ILEC) based in the state of

Colorado. MCI and Sprint, along with several other companies, sought entry to Qwest’s

market for local phone service. Under the Act, these companies are generally referred to

as “competing local exchange carriers” (CLECs). MCI and Sprint each attempted,

unsuccessfully, to negotiate interconnection agreements with Qwest. Accordingly, MCI

and Sprint each filed a petition with the CPUC asking for arbitration of unresolved issues

with Qwest. In particular, both MCI and Sprint sought inclusion in their respective

interconnection agreements of “most favored nation” (or “pick and choose”) clauses

affording them the right to (1) pick any clause from any other interconnection agreement

either agreed to or arbitrated by any other carrier who interconnected with Qwest, and (2)

purchase services from Qwest out of any effective tariffs filed by Qwest with the CPUC,4

regardless of the price(s) otherwise established for such services in the parties’

interconnection agreement. Dist. Ct. Order at 26.



CPUC’s decision regarding MCI’s petition

       MCI’s petition, which was filed first, was addressed by the CPUC in a written



       4
          As a local exchange carrier, Qwest is subject to the “jurisdiction, control, and
regulation” of the CPUC. Colo. Rev. Stat. § 40-1-103(1)(a) (2000). It is uncontroverted
that Qwest is required by Colorado law to file tariffs disclosing the prices and terms for
its services.

                                              7
order issued on December 2, 1996. The CPUC agreed with MCI regarding the most-

favored-nation provision and ordered that the interconnection agreement between MCI

and Qwest include a provision allowing MCI (1) “to incorporate and use any

interconnection, service, or network element from another agreement, upon acceptance of

all of the terms and conditions in the agreement related to such interconnection service or

element,” and (2) “to purchase services out of an effective tariff, regardless of prices set

forth in an existing agreement.” MCI App. at 366. The CPUC concluded the first portion

of the provision was required by Section 252(i) of the Act (47 U.S.C. § 252(i)) and FCC

Rule 809, which implemented Section 252(i). The CPUC concluded the second portion

of the provision (i.e., the tariff opt-in portion) was “consistent with the Act and [Qwest’s]

common carrier obligations.” Id. More specifically, the CPUC agreed with MCI that it

“would be unable to fairly compete in serving end-users if it [wa]s required to purchase

services from [Qwest] at unfavorable rates or on less favorable terms and conditions as

compared to other providers.”5 Id.

       After the CPUC issued its decision, the Eighth Circuit vacated FCC Rule 809, the

regulation implementing Section 252(i) of the Act. See Iowa Utilities Bd. v. FCC, 120



       5
         Interestingly, Qwest argued, in response to MCI’s petition, that in the event the
CPUC ordered the inclusion of a most-favored-nations provision, the CPUC should
“develop standardized, tariff-like offerings for interconnection agreements.” MCI App.
at 364-65. The CPUC concluded that such a system was already in place, since its rules
required incumbent providers “to file tariffs establishing rates, terms, and conditions for
interconnection, termination of local traffic, and unbundled elements.” Id. at 367.

                                              8
F.3d 753, 816 (8th Cir. 1997), aff’d in part, rev’d in part sub nom. AT&T Corp v. Iowa

Utilities Bd., 525 U.S. 366 (1999). Accordingly, pursuant to Qwest’s petition for

reconsideration, the CPUC modified the most-favored-nation provision by striking all

references to MCI’s right to incorporate terms from other interconnection agreements.

The CPUC subsequently approved the arbitrated interconnection agreement between MCI

and Qwest, which included the following most-favored-nation provision:

       The provisions of Section 252(i) of the Act shall apply to this Agreement,
       including state and federal interpretive regulations in effect from time to
       time. In the event any governmental authority or agency permits [Qwest],
       via tariff, to provide any service covered by this Agreement in accordance
       with any terms or conditions that individually differ from one or more
       corresponding terms or conditions of this Agreement, [MCI] may elect to
       amend this Agreement to reflect any such differing terms or conditions
       contained in such tariff, with effect from the date [MCI] makes such
       election and for the remainder of the term of this Agreement. The other
       services covered by this Agreement and not covered by such decision or
       order shall remain unaffected and shall remain in full force and effect.
       Notwithstanding the foregoing, [MCI] may purchase services out of an
       effective tariff, regardless of prices set forth in an existing agreement.

MCI App. at 451.



CPUC’s decision regarding Sprint’s petition

       Sprint’s petition was addressed initially by an arbitrator. The arbitrator agreed

with Sprint and ordered, in pertinent part, that the interconnection agreement between

Sprint and Qwest “permit Sprint to purchase services out of an effective tariff, regardless

of prices set forth in [the] existing agreement.” Sprint App. at 100. The arbitrator


                                             9
concluded that this provision was “consistent with the Act and [Qwest’s] common carrier

obligations, and with other Commission orders.” Id. More specifically, the arbitrator

“agree[d] with [Sprint] that a CLEC would be unable to fairly compete in serving end

users if it [wa]s required to purchase services from [Qwest] at unfavorable rates or on less

favorable terms and conditions as compared to other providers.” Id. The arbitrator’s

decision was consistent with the CPUC’s decision on MCI’s petition, which was issued

approximately one week prior to the arbitrator’s decision.

       Qwest filed exceptions to the arbitrator’s decision, triggering review by the CPUC

itself. In particular, Qwest challenged the portion of the arbitrator’s decision requiring

inclusion of the “most favored nation” clause. On January 8, 1997, the CPUC issued an

order rejecting Qwest’s exception to the “most favored nation” clause. Id. at 111. In

doing so, the Commission concluded that the arbitrator’s “Recommended Decision . . .

correctly ruled upon th[e] issue for the reasons stated therein.” Id. at 117. The CPUC

subsequently approved the negotiated/arbitrated interconnection agreement between

Sprint and Qwest, effective July 3, 1997. Id. at 127.

       Consistent with the CPUC’s decision, the interconnection agreement between

Sprint and Qwest included the following most-favored-nation provision:

       [Qwest] shall make available any interconnection, service, or network
       element provided under an agreement approved under Section 252(i) of the
       Act to which it is a party to Sprint upon the same terms and conditions as
       those provided in the agreement. Individual interconnection, service, or
       network elements from another agreement, are available upon acceptance of
       all the terms and conditions in the agreement related to such

                                             10
       interconnection, service or element. Upon proof provided by [Qwest] that
       Sprint causes [Qwest] to incur greater costs in the provision of the service
       than the current carrier’s agreement, Sprint will accept the increased costs
       for the service. [Qwest] shall also permit Sprint to purchase services out of
       an effective tariff, regardless of prices set forth in an existing agreement.
       [Qwest] shall make all agreements available for public viewing within 10
       days of approval by the Commission. Sprint will notify [Qwest] of its intent
       to adopt the provisions of another agreement at least 30 days prior to
       effectuating the change.

Dist. Ct. Order at 28 (citing Sprint Interconnection Agreement, Section 36.2).



District court proceedings

       Qwest, acting pursuant to 47 U.S.C. § 252(e)(6), filed separate actions challenging

the CPUC’s decisions on MCI’s and Sprint’s petitions. With respect to the Sprint

interconnection agreement, Qwest initially opposed the “most-favored-nation” clause in

its entirety. However, following the Supreme Court’s decision in Iowa Utilities Bd.,

Qwest narrowed its challenge to only the portion of the provision affording Sprint the

right to purchase services out of Qwest’s Colorado tariffs.6 Qwest’s actions were

consolidated by the district court for decision.

       The district court ultimately agreed with Qwest and concluded that neither the Act

nor the FCC rules promulgated pursuant to the Act “permit[ted] a requesting carrier to opt


       6
         In Iowa Utilities Bd., the Supreme Court reversed the decision of the Eighth
Circuit and upheld the FCC’s “pick and choose” rule, thereby validating the portion of the
“pick and choose” provision which afforded Sprint the right to “opt-in” to any provision
contained in any other interconnection agreement between Qwest and other CLECs. 525
U.S. at 395-96.

                                              11
into tariff provisions.” Dist. Ct. Order at 30. The district court further concluded that

allowing MCI and Sprint “to use a tariff to supplement or supplant any term, condition, or

price that is covered by the agreement . . . would eviscerate the provisions of 251 and 252

of the Act which require that the parties negotiate the terms of an interconnection

agreement and arbitrate those terms that they are not able to agree to.” Id. More

specifically, the district court concluded there would be little incentive for carriers such as

MCI and Sprint “to negotiate” if they could “simply opt into a more favorable tariff than

the state commission imposes.” Id. at 31. The court also expressed concern that

permitting carriers such as MCI and Sprint to pick and choose from tariffs could

“undermine federal court review of interconnection obligations under the . . . Act.” Id.

Lastly, the court noted that if MCI and Sprint or other similarly-situated carriers wanted

“to have a tariff term incorporated into the[ir] interconnection agreements, they [we]re

free to seek an amendment of the[ir] interconnection agreement[s].” Id. at 33. The

district court therefore vacated the “pick and choose” provisions of the agreements to the

extent they permitted MCI and Sprint to purchase services at tariff rates.7 Id.


       7
          Shortly after the district court's decision was issued, the interconnection
agreement between Sprint and Qwest expired and was replaced by a new agreement (the
2000 Agreement), which is currently in effect. Notably, the 2000 Agreement expressly
anticipates the continuation of this litigation and provides that, in the event this court
reverses the district court's decision, the parties will amend the 2000 Agreement to reflect
the court's decision. See 2000 Agreement, ¶ (A) 1.2. Based upon this language, we
conclude that the expiration of the original interconnection agreement did not moot
Sprint's appeal. See International Bhd. of Teamsters v. Southwest Airlines Co., 875 F.2d
1129, 1132-33 (5th Cir. 1989) (en banc) (concluding expiration of collective bargaining

                                              12
                                               II.

       We review de novo whether the arbitrated interconnection agreements are in

compliance with the Act and the implementing FCC regulations. Southwestern Bell Tel.

Co. v. Brooks Fiber Comm. of Okla., Inc., 235 F.3d 493, 498 (10th Cir. 2000). All other

issues, including state law determinations made by the CPUC, are reviewed under an

arbitrary and capricious standard. Id.

                                              III.

Sprint’s Appeal (Case No. 00-1401)

       The primary question we must address is whether the tariff opt-in provision

violates § 252(i) and/or the FCC’s implementing regulation, 47 C.F.R. § 51.809. Section

252, as its title indicates, generally outlines the “[p]rocedures for negotiation, arbitration,

and approval of [interconnection] agreements.” Section 252(i), entitled “Availability to

other telecommunications carriers,” provides:

       A local exchange carrier shall make available any interconnection, service,
       or network element provided under an agreement approved under this
       section to which it is a party to any other requesting telecommunications
       carrier upon the same terms and conditions as those provided in the
       agreement.

47 U.S.C. § 252(i). In turn, FCC Rule 51.809 provides:

              (a) An incumbent LEC shall make available without unreasonable



agreement that precipitated suit did not render proceedings moot because parties had
negotiated a new agreement that tracked the terms of the original agreement and the
parties did not bargain about or agree to a resolution to the dispute).

                                               13
       delay to any requesting telecommunications carrier any individual
       interconnection, service, or network element arrangement contained in any
       agreement to which it is a party that is approved by a state commission
       pursuant to section 252 of the Act, upon the same rates, terms, and
       conditions as those provided in the agreement. An incumbent LEC may not
       limit the availability of any individual interconnection, service, or network
       element only to those requesting carriers serving a comparable class of
       subscribers or providing the same service (i.e., local, access, or
       interexchange) as the original party to the agreement.
               (b) The obligations of paragraph (a) of this section shall not apply
       where the incumbent LEC proves to the states commission that:
                       (1) The costs of providing a particular interconnection,
               service, or element to the requesting telecommunications carrier are
               greater than the costs of providing it to the telecommunications
               carrier that originally negotiated the agreement, or
                       (2) The provision of a particular interconnection, service, or
               element to the requesting carrier is not technically feasible.
               (c) Individual interconnection, service, or network element
       arrangements shall remain available for use by telecommunications carriers
       pursuant to this section for a reasonable period of time after the approved
       agreement is available for public inspection under section 252(f) of the Act.

47 C.F.R. § 51.809 (2000).

       The district court concluded that § 252(i) and the implementing regulation “govern

only a requesting carrier’s ability to opt into interconnection agreements entered into

under the Act.” Dist. Ct. Order at 29. Proceeding further, the district court interpreted

§ 252(i) and the implementing regulation as precluding a state commission from allowing

a CLEC to opt into the prices and terms set forth in an ILEC’s published tariffs. In other

words, the district court interpreted Section 252(i) as governing the entire universe of so-

called “opt-in” provisions, and concluded that, because “[a] tariff is not ‘an agreement

approved under’ Section 252,” nor “part of the Section 252 negotiation and arbitration


                                             14
process,” it violates § 252(i) if a CLEC is allowed to opt into one or more of an ILEC’s

tariffs. Id. at 29.

       We reject the district court’s interpretation of § 252(i). Nothing in the language of

§ 252(i) suggests that it was intended to govern the entire universe of “opt-in” provisions.

See generally Iowa Utilities Bd., 525 U.S. at 394 (holding that the Act’s language

requiring incumbent carriers to “provide such unbundled network elements in a manner

that allows requesting carriers to combine such elements in order to provide such

telecommunications service” indicates that network elements may be leased in discrete

parts, but “does not say, or even remotely imply, that elements must be provided only in

this fashion and never in combined form”); Illinois Bell Tel. Co. v. Worldcom Tech., Inc.,

179 F.3d 566, 573 (7th Cir. 1999) (noting that simply because “the Act does not require”

something does not mean “that it prohibits it”) (italics in original). Rather, the language

of § 252(i) indicates it was intended only to make clear that, under the Act, ILECs are

required to allow CLECs to opt into provisions in other interconnection agreements. In

other words, § 252(i) allows a CLEC to effectively amend its own interconnection

agreement by taking advantage of more favorable provisions contained in other CLEC

interconnection agreements. As Sprint argues, the provision, by allowing CLECs to

purchase services at equal prices and on equal terms, enables a CLEC to remain

competitive with other CLECs in the local market. The provision does not, however,

address the ability of a CLEC to remain competitive with an ILEC (which appears to be


                                             15
the intended purpose of the tariff opt-in provision).8

       The next question is whether the tariff opt-in provision violates any other portions

of §§ 251 or 252. The district court concluded that allowing Sprint “to use a tariff to

supplement or supplant any term, condition, or price that is covered by the agreement . . .

would eviscerate the provisions of [sections] 251 and 252 . . . which require that the

parties negotiate the terms of an interconnection agreement and arbitrate those terms that

they are not able to agree to.” Dist. Ct. Order at 30. Qwest agrees, and also asserts that

the provision violates §§ 251 and 252 because, by affording Sprint the right to purchase

services out of Qwest’s tariffs, it effectively bypasses the parties’ interconnection

agreement.

       The district court concluded that the tariff opt-in provision violated §§ 251 and 252

because, in the district court’s view, it had the potential to negatively impact the

negotiation of interconnection agreements. According to the district court, “there is little

incentive for carriers to negotiate if they can simply opt into a more favorable tariff than

the state commission imposes.” Dist. Ct. Order at 31.

       We question the district court’s conclusion. At least from the standpoint of a

CLEC,9 an incentive remains to negotiate prices and terms that are more favorable than

       8
        We also note that it makes no sense to conclude that § 252(i) precludes a CLEC
from opting into an ILEC’s tariffs when that precise result can be achieved by a CLEC
simply opting into another interconnection agreement that incorporates the ILEC’s tariffs.
       9
          As the FCC has recognized, ILECs have always had “little incentive to facilitate
the ability of new entrants . . . to compete against them.” MCI’s Opening Br. at 15

                                              16
those set forth in an ILEC’s existing tariffs (assuming it is legally permissible for the

parties to an interconnection agreement to negotiate prices and terms that are more

favorable than those contained in the ILEC’s existing tariffs).10 The tariff opt-in

provision therefore does not diminish the negotiation process, but instead ensures that a

CLEC will be able to obtain the most favorable prices and terms available, thereby

allowing it to remain competitive in the local marketplace.

       In concluding that the tariff opt-in provision would negatively impact the

negotiation of interconnection agreements, the district court relied on MCI

Telecommunications Corp. v. GTE Northwest, Inc., 41 F. Supp. 2d 1157 (D. Or. 1999).

That case, however, is not on point. In MCI Telecommunications, the Oregon Public

Utility Commission (OPUC) ordered an ILEC to publish a tariff listing elements that the

OPUC decided must be unbundled and the prices that the OPUC had fixed for those

elements. The effect of the OPUC’s order was to allow prospective CLECs to order

services from the ILEC “off-the-rack” without entering into an interconnection agreement

with the ILEC. The ILEC challenged the OPUC’s order and the district court struck it

down, concluding it conflicted with the Act and was therefore preempted. Id. at 1176.


(quoting from the FCC’s Local Competition Order ¶ 307). The tariff opt-in provisions
would seem to have little impact in that area.
       10
          MCI, Sprint and Qwest agree that, under Colorado law, a CLEC has the right to
purchase services from an ILEC pursuant to the ILEC’s tariffs without negotiating an
interconnection agreement. Thus, a CLEC already has little incentive to negotiate an
interconnection agreement unless it can obtain rates and terms that are more favorable
than those found in the ILEC’s tariffs.

                                              17
The basis for the district court’s decision was its conclusion that the challenged order

“dispensed with the interconnection agreement altogether and [wa]s allowing CLECs to

order services ‘off the rack’ without an interconnection agreement.” Id. at 1178. That is

not the case here, where Sprint and the other CLECs have in place interconnection

agreements with Qwest.

       Although Qwest repeatedly asserts that the tariff opt-in provision allows Sprint to

bypass its interconnection agreement, we disagree. The fact is that the CPUC is imposing

an alternative price/term scheme as part of the interconnection agreements. Thus, under

the terms of the interconnection agreement, Sprint can purchase services at specific rates

and terms listed in its interconnection agreement, or, alternatively, can purchase services

at the rates and terms set forth in Qwest’s tariffs. Either way, Sprint is acting through its

interconnection agreement and with the approval of the CPUC.

       One of the main cases relied on by Qwest in support of its “bypass” argument,

Verizon North v. Strand, 140 F. Supp. 2d 803 (W.D. Mich. 2000), is inapposite. There,

the plaintiff, an ILEC, was challenging a state commission order that required it “to file

tariffs offering its network elements and services for sale on fixed terms to all potential

entrants without the necessity of negotiating an interconnection agreement.” Id. at 809.

In other words, the tariff the plaintiff was ordered to file would “completely displace[] . . .

interconnection agreement[s].” Id. Here, in contrast, the challenged provision does not

eliminate interconnection agreements, but rather is a part of one. A decision by MCI or


                                              18
Sprint to purchase services at the rates and terms set forth in one or more of Qwest’s

tariffs does not result in abandonment of the interconnection agreement between itself

and Qwest. It simply means that the interconnection agreement is amended to include the

terms of the particular tariff(s). The parties remain bound by the interconnection

agreement at all times, as anticipated by the Act.

       In striking the tariff opt-in provision, the district court also expressed concern that

the provision could undermine federal court review of interconnection obligations:

       [P]ermitting CLECs to “pick and choose” from tariff provisions may
       undermine federal court review of interconnection obligations under the
       Telco Act. The CPUC in other proceedings in this Court, U S West
       Communications, Inc. v. ICG Telecom Group, Inc., Civil Action No. 99-D-
       1827, has taken the position that interconnection agreements and the
       approval or rejection of same are the only thing subject to review in federal
       court under 47 U.S.C. § 252(e)(6). If the CPUC’s argument were accepted,
       the CPUC and/or other carriers could not be sued in federal court for review
       of interconnection tariffs that were opted into by a CLEC, essentially
       eviscerating federal court review of interconnection obligations under the
       Act. The CPUC could simply purport to apply the Act in a tariff and/or the
       CLECs could opt into more favorable provisions in a tariff to avoid the
       exclusive federal court review Congress envisioned.

Dist. Ct. Order at 31. In our view, the district court’s concerns are unfounded. In a case

decided after the district court’s decision, we held that state commissions have inherent

authority to interpret and enforce previously-approved interconnection agreements, and

that federal courts have jurisdiction to review state commission decisions interpreting and

enforcing previously-approved interconnection agreements. Brooks Fiber, 235 F.3d at

497. Thus, if Sprint chooses to exercise its rights under the tariff opt-in provision to


                                              19
purchase services at the rates and terms set forth in Qwest’s Colorado tariffs, Qwest can

ask the CPUC to review the effectively amended interconnection agreement to ensure that

it complies with the terms of the Act. In turn, any of the parties can then seek federal

court review of the CPUC’s decision.11

       Additionally, even if federal courts do not have authority to review state

commission decisions interpreting and enforcing interconnection agreements, it is clear

that state courts do. See Bell Atlantic, 240 F.3d at 307. Thus, Qwest would not be left

without an avenue to assert subsequent challenges to the interpretation and enforcement



       11
           We recognize there is a split of authority among the circuits on the issue of
whether federal courts have authority to review state commission orders interpreting
and/or enforcing previously approved interconnection agreements. The Fifth, Seventh,
Eighth, and Tenth Circuits agree that federal courts have authority to review such orders.
See Southwestern Bell Tel. Co. v. Public Utility Comm’n, 208 F.3d 475, 481 (5th Cir.
2000); Illinois Bell, 179 F.3d at 570; Iowa Utilities Bd., 120 F.3d at 804 n.24; Brooks
Fiber, 235 F.3d at 497. In contrast, the Fourth Circuit recently held that such orders “are
routine State commission determinations made by State commissions within their retained
powers, and accordingly they are reviewable only by State courts in accordance with State
law that the 1996 Act has preserved.” Bell Atlantic Maryland, Inc. v. MCI Worldcom,
Inc., 240 F.3d 279, 307 (4th Cir. 2001). As noted by MCI and Sprint, the Supreme Court
has granted certiorari in a couple of these cases and will presumably decide the issue
sometime this year. See Illinois Bell, 179 F.3d 566, petition for cert granted in part sub
nom. Mathias v. WorldCom Techs., Inc., No. 00-878 (Mar. 5, 2001).
        Even assuming, arguendo, that the Supreme Court reverses our decision in Brooks
Fiber and holds that federal courts do not have jurisdiction to review State commission
orders interpreting and enforcing previously approved interconnection agreements, the
concerns expressed by the district court appear to be minimal. Presumably the CPUC, in
approving the tariff opt-in provision at issue, concluded that it generally complied with
the provisions of §§ 251 and 252, and that, should Sprint exercise its rights under the
provision to opt into any of Qwest’s tariffs, the prices and terms received by it under
those tariffs would likewise comply with the Act.

                                             20
of the agreement. Specifically, it appears that Qwest could seek relief in the Colorado

courts, and those courts would have authority to determine whether the interconnection

agreement complies with the Act. See generally Colo. Rev. Stat. § 40-6-115(1) (2000)

(authorizing state court review of any final decision of the CPUC).

       The only additional argument Qwest makes on this issue is that “federal court

review over state interconnection tariffs is not settled.” Qwest Br. (in the Sprint appeal)

at 21. Qwest’s point is not clear. To the extent a federal court is required to pass on a

tariff opt-in provision, it is only determining whether the provision complies with the Act.

It is not, as Qwest would have it, passing on the legitimacy of the tariffs themselves. In

any event, Qwest readily admits “that parties can agree to incorporate the rates, terms, and

conditions of Colorado tariffs in their interconnection agreements.” Id. at 6. If that is the

case, it is unclear why it was improper for the CPUC in this case to allow Sprint to take

advantage of the rates and terms set forth in Qwest’s tariffs.



MCI’s Appeal (Case No. 00-1402)

       The issues raised in MCI’s appeal are identical to those raised in Sprint’s appeal,

with one exception. The most-favored-nation provision in the interconnection agreement

between MCI and Qwest, in addition to affording MCI the right to permanently amend its

interconnection agreement with terms and conditions contained in Qwest’s tariffs, states

that MCI may also “purchase services out of an effective . . . tariff, regardless of prices


                                              21
set forth in an existing agreement.” MCI App. at 362. At first glance, this clause appears

problematic since it seems to suggest that MCI can operate outside the terms of its

interconnection agreement. Upon closer inspection, however, that is not the case.

Instead, the clause allows MCI to temporarily “opt into” Qwest’s tariffs, without

permanently amending its interconnection agreement to include the tariff rates and terms.

In other words, the most-favored-nation provision, considered as a whole, allows MCI to

take advantage of Qwest’s tariffs in one of two ways: it can either permanently or

temporarily “opt into” terms and conditions contained in those tariffs. Either way, MCI

remains bound by its agreement with Qwest.

       One other aspect of MCI’s appeal must be briefly addressed. In challenging the

district court’s conclusion that the tariff opt-in provision would undermine negotiations of

interconnection agreements, MCI contends that, “[u]nder the Act, interconnection

agreements are not intended to be the sole means for competing carriers to obtain

interconnection, access, or services.” MCI’s Opening Br. at 27. We find it unnecessary

to decide this question because, even if interconnection agreements are the sole means for

competing carriers to obtain interconnection, access, or services, nothing in the most-

favored-nation provision changes that. The fact is that, however MCI utilizes the most-

favored-nation provision, it is acting through the interconnection agreement arbitrated and

approved by the CPUC. Further, for the reasons outlined above, we conclude the tariff

opt-in provision does not undermine the negotiation process.


                                            22
                                            IV.

       The judgment of the district court is REVERSED and the case is REMANDED to

the district court with directions to enter judgment in favor of defendants Sprint and MCI.




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