United States Court of Appeals
For the First Circuit
No. 10-1091
CENTENNIAL PUERTO RICO LICENSE CORP.,
Plaintiff, Appellee,
PUERTO RICO TELEPHONE COMPANY, INC.,
Plaintiff, Appellant,
v.
TELECOMMUNICATIONS REGULATORY BOARD OF PUERTO RICO,
Defendant, Appellee,
VICENTE AGUIRRE ITURRINO; SANDRA TORRES LÓPEZ;
NIXYVETTE SANTINI HERNÁNDEZ,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José Antonio Fusté, U.S. District Judge]
Before
Torruella, Ripple,* and Lipez, Circuit Judges.
Eduardo R. Guzmán-Casas, with whom Joe D. Edge, Christopher C.
Sabis and Drinker Biddle & Reath LLP were on brief, for appellant.
Robert F. Reklaitis, with whom Leslie Paul Machado and LeClair
Ryan were on brief, for appellee Telecommunications Regulatory
Board of Puerto Rico.
*
Of the Seventh Circuit, sitting by designation.
Christopher W. Savage, with whom Davis Wright Tremaine LLP was
on brief, for appellee Centennial Puerto Rico License Corp.
February 7, 2011
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RIPPLE, Circuit Judge. The plaintiff telecommunications
companies brought these consolidated actions in the United States
District Court for the District of Puerto Rico against defendants-
appellees Telecommunications Regulatory Board of Puerto Rico ("the
Board") and various individual commissioners. They alleged
violations of federal and commonwealth law in connection with the
arbitration and approval of the companies' interconnection
agreements. On cross-motions for summary judgment, the district
court issued an opinion and order granting in part and denying in
part summary judgment for the Board, granting in part and denying
in part summary judgment for plaintiff-appellee Centennial Puerto
Rico License Corporation ("Centennial"), vacating in part the
Board’s order on reconsideration and denying in full summary
judgment for plaintiff-appellant Puerto Rico Telephone Company,
Inc. ("PRTC"). PRTC now seeks review of the district court’s
decision. We believe that the Board was correct in all aspects of
its order. Therefore, we affirm in part and reverse in part the
judgment of the district court and remand for proceedings
consistent with this opinion.
I
BACKGROUND
A. The Statutory Scheme
Congress enacted the Telecommunications Act of 1996 ("the
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Act") to reduce regulation of the telecommunications industry and
to end the historical monopoly of incumbent local exchange carriers
("LECs") over local telecommunications services.1 In addition to
removing state regulatory barriers to new entry, see 47 U.S.C. §
253,2 Congress sought to encourage competition by mandating that
carriers interconnect with one another and by requiring incumbent
LECs to share elements of their existing telecommunications
infrastructure with competing LECs. See id. §§ 251-252.
To achieve these goals, the Act creates "a three-tier
system of obligations imposed on separate, statutorily defined
telecommunications entities." Atlas Tel. Co. v. Oklahoma Corp.
Comm'n, 400 F.3d 1256, 1262 (10th Cir. 2005). First, all
telecommunications carriers have a duty "to interconnect directly
or indirectly with the facilities and equipment of other
telecommunications carriers." 47 U.S.C. § 251(a)(1). Second, the
1
Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 56, 56 (1996) (codified as amended in scattered sections of
Title 47 of the United States Code). The stated purposes of the
Act are "[t]o promote competition and reduce regulation in order to
secure lower prices and higher quality services for American
telecommunications consumers and encourage the rapid deployment of
new telecommunications technologies." Id.
2
In particular, subsection 253(a) provides that "[n]o State
or local statute or regulation, or other State or local legal
requirement, may prohibit or have the effect of prohibiting the
ability of any entity to provide any interstate or intrastate
telecommunications service," and subsection 253(d) instructs the
FCC to preempt any state or local laws, regulations or enactments
the FCC determines to be inconsistent with the provisions of
section 253. 47 U.S.C. § 253(a),(d).
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Act imposes a number of duties upon all LECs (both incumbent and
competing), including the duty "not to prohibit, and not to impose
unreasonable or discriminatory conditions or limitations on, the
resale of its telecommunications services." Id. § 251(b)(1).
Finally, the Act obliges incumbent LECs to lease to competitors
unbundled elements of their existing local networks, id. §
251(c)(3), to interconnect calls from customers of one LEC to
customers of another LEC, id. § 251(c)(2), to allow competitors to
purchase the incumbents' services at wholesale rates and resell
those services at retail, id. § 251(c)(4), and to negotiate in good
faith the terms of providing interconnection and services to other
carriers, id. § 251(c)(1). The Act also directs the FCC to
promulgate regulations implementing these provisions and to set
standards of service and interconnection. See id. § 251(d).
Although the incumbent LECs' obligations to furnish
network elements and allow interconnection are mandatory, Congress
intended that the parties negotiate, in the first instance without
government intervention, the terms of use and interconnection. See
id. § 252(a). Section 252 sets forth the procedures for
telecommunications providers to follow in requesting and
negotiating the terms of these agreements.
Upon a request for access from a telecommunications
provider, an incumbent LEC must enter into good-faith negotiations
to reach a voluntary interconnection agreement. Id. § 252(a)(1).
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At any time during the negotiations, a party may ask a state
commission to participate as a mediator. Id. § 252(a)(2). If
negotiations prove unsuccessful, subsection 252(b) establishes a
mechanism through which any party may petition the state commission
to compel arbitration of any unresolved terms. In addition,
subsection 252(e) requires any interconnection agreement reached by
negotiation or arbitration to be submitted to the state commission
for approval; it also specifies the grounds on which the commission
may reject the agreement. See § 252(e)(1)-(2).
Specifically, a state commission may reject an arbitrated
agreement only if it finds that "the agreement prescribed by the
arbitrator (1) does not hold the carriers to their obligations
under section 251 . . . or (2) fails to meet the pricing standards
of section 252(d)." WorldNet Telecomms., Inc. v. Puerto Rico Tel.
Co., 497 F.3d 1, 5-6 (1st Cir. 2007) (citing 47 U.S.C. §
252(e)(2)(B)). In reviewing agreements, the state commission is
also bound by any standards set by the FCC. See AT&T Corp. v. Iowa
Utils. Bd., 525 U.S. 366, 384-85 (1999); Global NAPs, Inc. v.
Verizon New Eng., Inc. (Global NAPs I), 396 F.3d 16, 19 (1st Cir.
2005). Despite these limitations, the Act provides that "nothing
in this section shall prohibit a State commission from establishing
or enforcing other requirements of State law in its review of an
agreement, including requiring compliance with intrastate
telecommunications service quality standards or requirements." 47
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U.S.C. § 252(e)(3). A party dissatisfied with the state
commission's determination can seek review in federal district
court. See id. § 252(e)(6).
The Act thus engages in a process of "cooperative
federalism," Puerto Rico Tel. Co. v. Telecomms. Regulatory Bd. of
Puerto Rico, 189 F.3d 1, 8 (1st Cir. 1999): It sets certain
minimum interconnection and service obligations and provides the
FCC with the power to set general standards. However, it also
leaves room for otherwise consistent state regulations, see 47
U.S.C. § 253(b),3 and it vests in the several state commissions the
authority to implement state policy and to impose additional,
individual requirements on telecommunications providers by
reviewing interconnection agreements. See Verizon New Eng., Inc.
v. Maine Pub. Utils. Comm'n, 509 F.3d 1, 7 (1st Cir. 2007)
(describing the "dual federal-state regime"); WorldNet, 497 F.3d at
9 (stating that "the Act sets a federally mandated floor of equal
service, and State commissions retain authority to ‘raise the
3
Subsection 253(b) provides:
Nothing in this section [prohibiting State and local
governments from creating barriers to entering the market
for telecommunications services] shall affect the ability
of a State to impose, on a competitively neutral basis
and consistent with section 254 of this title,
requirements necessary to preserve and advance universal
service, protect the public safety and welfare, ensure
the continued quality of telecommunications services, and
safeguard the rights of consumers.
47 U.S.C. § 253(b).
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bar'") (quoting Indiana Bell Tel. Co. v. McCarty, 362 F.3d 378,
391-93 (7th Cir. 2004)).
In order to strike a balance between federal and state
interests, the Act provides that the FCC "shall not preclude the
enforcement of any regulation, order, or policy of a State
commission" that is "consistent with the requirements" of § 251 and
"does not substantially prevent implementation of the requirements
of [§ 251] and the purposes" of the Act. 47 U.S.C. § 251(d)(3)(B)-
(C). The Act also disclaims--at least to a certain extent--
preemption of state law:
Nothing in this part precludes a State
from imposing requirements on a
telecommunications carrier for intrastate
services that are necessary to further
competition in the provision of telephone
exchange service or exchange access, as long
as the State's requirements are not
inconsistent with this part or the
Commission's regulations to implement this
part.
Id. § 261(c).
B. Proceedings Before the Board
In 2005, PRTC, an incumbent LEC, and Centennial, a
competing LEC, completed two interconnection agreements, which they
renegotiated in 2008. During the renegotiation, PRTC and
Centennial failed to reach an agreement on eighteen issues, and
Centennial petitioned the Board, the commission responsible for
administering the Act in Puerto Rico, to compel arbitration. The
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Board-appointed arbitrator conducted a hearing, and then the Board
issued a decision resolving the outstanding issues. Later, the
Board modified its decision on reconsideration.4 Three of those
issues are relevant here:
1. Billing Dispute Fees
The 2005 agreements contained a term governing billing
disputes between the parties. Under this term, if an invoiced
party disputed a service bill, that party was required to put the
invoiced amount in escrow. If the invoicing party prevailed in the
dispute, it was entitled to the escrowed funds plus interest and a
"late payment penalty." R.1, Ex. 1 at 9 (Report and Order, Aug. 8,
2008, at 6). The agreement did not provide, however, for a
reciprocal erroneous billing penalty if the invoiced party
prevailed. During renegotiation, Centennial (which, it seems, is
usually the invoiced party) wished to dispense with the late
payment penalty, and PRTC wished to retain it. The Board
determined that the agreements would retain the late payment fee.
On reconsideration, the Board reversed its initial
determination. In order to achieve symmetry, the Board decided
that the parties should either include both a "late payment fee"
4
See R.1, Ex. 1 (Report and Order, Aug. 8, 2008); R.1, Ex.
4 (Order on Reconsideration, Nov. 25, 2008). The Board’s order
addressed the twelve issues remaining after the parties reached a
settlement on six of the eighteen issues.
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and an "erroneous billing fee" or abjure both fees. R.1, Ex. 4 at
10 (Order on Reconsideration, Nov. 25, 2008) (quotation marks
omitted). According to the Board, although it believed at first
that a late payment fee would compensate the party wrongly denied
use of the funds in a way that an erroneous billing fee would not,
upon reconsideration it determined that the party billed
erroneously also was denied use of the funds while in escrow and
that an erroneous billing fee would encourage responsible billing
practices. After the Board's order, the parties chose to include
both billing dispute fees.
2. Direct Connection with Claro
PRTC operates a mobile telephone service carrier division
called Claro.5 When calls are made between customers of Claro and
customers of Centennial or its mobile service division, PRTC
facilitates an indirect connection (that is, a connection running
first from Centennial to PRTC's wired network and then to Claro
rather than directly from Centennial to Claro) and charges
Centennial a transiting fee for the connection. Although
Centennial had reached direct connection agreements with most other
5
Our use of the term "mobile service carrier" refers to
providers of cellular telephone and other wireless
telecommunications services and is intended to capture what the FCC
and the Board call "commercial mobile radio service" providers or
"CMRS providers." See In re Interconnection & Resale Obligations
Pertaining to Commercial Mobile Radio Servs., 10 F.C.C.R. 10666,
10668 (1995); R.1, Ex. 1 at 35 (Report and Order at 32).
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mobile service providers in Puerto Rico, PRTC had refused to
facilitate negotiations between Claro and Centennial. During
renegotiation, Centennial demanded that PRTC either use
commercially reasonable efforts to facilitate a direct connection
or cease charging the transiting fee. The Board agreed in part,
giving PRTC three months to use "commercially reasonable efforts"
to facilitate a direct connection between Claro and Centennial.
R.1, Ex. 1 at 35 (Report and Order at 32) (quotation marks
omitted). If a direct connection did not result, the Board would
require PRTC to explain why a direct connection was infeasible for
business, technical or efficiency reasons. During that period of
explanation, Centennial could withhold transiting fees pending a
further determination by the Board. The Board upheld this
determination on reconsideration.
3. Meet Points
The points at which Centennial's and PRTC's networks
physically interconnect (called "meet points," id. at 15 (Report
and Order at 12),) can be used to exchange many different types of
telecommunications traffic, but the 2005 agreements limited the
types of traffic permitted to be exchanged at the meet points to
certain, specifically enumerated categories. During the
renegotiation, Centennial asserted that federal law provided it
with an absolute right to exchange any type of traffic it wished.
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As such, Centennial asked the Board to amend the agreements to
permit PRTC and Centennial to exchange "any lawful traffic." Id.
(quotation marks omitted). Centennial particularly was interested
in ensuring that the agreement permit voice-over internet protocol
("VOIP") traffic. VOIP refers to calls routed in whole or in part
over the internet rather than over traditional telephone lines.
VOIP users can place telephone calls from their computers to, and
receive calls from, other computers or regular telephones, or can
place calls through VOIP-connected telephones. Although the calls
are routed through the internet for the VOIP user, calls going to
or originating from traditional telephone users are switched
through local exchange carriers, creating a substantial set of
interconnection issues.
The Board ruled against Centennial on this point,
determining that federal law does not give Centennial a right to
exchange all types of traffic at meet points, that the FCC was
still wrestling with how to resolve issues posed by various types
of interconnection traffic, and that it would be more prudent to
limit exchanged traffic to categories specifically enumerated
absent a showing of anti-competitive efforts on the part of an LEC
to refuse reasonable interconnection requests.
On reconsideration, the Board retained its determinations
regarding the enumeration of permissible meet-point traffic. In
addition, the Board refused Centennial's alternative request to
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enumerate specifically VOIP traffic in the agreements. According
to the Board, Centennial had failed to demonstrate
that there is any need to specifically call
out VoIP traffic--which can encompass
different services--for special attention. We
understand that the Parties today exchange
VoIP traffic without difficulty. Obviously,
if the status of VoIP traffic changes in the
future, or if other circumstances warrant, the
Parties can renegotiate this provision.
R.1, Ex. 4 at 7.
C. Proceedings Before the District Court
PRTC and Centennial filed separate petitions for review
in the district court under 47 U.S.C. § 252(e)(6), each alleging
that the Board violated different provisions of federal and
commonwealth law in its approval and modification of the
agreements. After the petitions were consolidated, the companies
and the Board each moved separately for summary judgment. The
district court held that the parties had stipulated that no genuine
issues of material fact existed and resolved which parties were
entitled to judgment as a matter of law on the various disputed
issues. See Centennial Puerto Rico License Corp. v. Telecomms.
Regulatory Bd. of Puerto Rico, Nos. 08-2436, 09-1002, 2009 WL
4407214, at *1 (D.P.R. Nov. 25, 2009).6
6
The district court addressed five issues, only three of
which PRTC contests on appeal. Centennial and the Board do not
appeal the issues decided adversely to them.
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1. Billing Dispute Fees
With respect to the billing dispute fees, the district
court rejected PRTC's contention that Puerto Rico Law 213,7 which
Puerto Rico courts have held does not provide the Board with
jurisdiction to award damages in suits between telecommunications
providers, prohibits the Board from including terms in an
interconnection agreement that require one telecommunications
provider to pay a penalty fee to another. According to the
district court, PRTC's position was foreclosed by our holding in
WorldNet Telecommunications, Inc. v. Puerto Rico Telephone Co., 497
F.3d 1, 8 (1st Cir. 2007), that "neither the Act nor Puerto Rico
precedent forbids [the imposition of] incentive-based liquidated
damages" in an arbitrated interconnection agreement.
2. Direct Connection with Claro
With respect to the transiting fees between Centennial
and Claro, the district court rejected PRTC's claim that the FCC's
decision not to promulgate regulations imposing interconnection
obligations on mobile service carriers preempts state authority to
require PRTC to make commercially reasonable efforts to facilitate
a direct connection between Claro and Centennial. The district
court held, however, that the Board did not impose a direct
connection requirement as such, but only a requirement to
7
P.R. Laws Ann. tit. 27, §§ 265-272.
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facilitate negotiations. The arbitration and approval of an
interconnection agreement did not constitute state regulation of
mobile service carriers. Further, the court noted that the Board's
decision was consistent with the FCC's fears that "'LEC-affiliated
[mobile service] carriers,' like Claro, might unreasonably deny
efficient connection" and with the FCC's suggestion that such a
"denial would justify regulatory intervention." Centennial Puerto
Rico License Corp., 2009 WL 4407214, at *5 (quoting In re
Interconnection & Resale Obligations Pertaining to Commercial
Mobile Radio Servs., 10 F.C.C.R. 10666, 10687-88 (1995)).
3. Meet Points
With respect to VOIP traffic, the district court
disagreed with Centennial's claim that federal law entitles it to
exchange all lawful traffic at meet points. It agreed with
Centennial, however, that the Board's decision not to enumerate
VOIP traffic separately was arbitrary and capricious. According to
the court:
The parties agree that VoIP traffic does not
fall into any of the categories already
enumerated, yet Centennial and PRTC are
allowed to exchange VoIP traffic. Since the
Board decided that Centennial and PRTC must
maintain a list of allowed traffic, thereby
excluding all other traffic, its decision to
allow VoIP traffic without including it on the
enumerated list is arbitrary and capricious.
Thus, the Board erred in excluding VoIP
traffic from the enumerated list, to the
extent that VoIP traffic does not already fall
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under an enumerated category.
Id. at *9. This appeal followed.
II
DISCUSSION
A. Standard of Review
"Where as here judicial review is based on the agency
record, we apply to the agency ordinary review standards, accepting
the district court decision merely as it may be persuasive."
WorldNet, 497 F.3d at 5. We review the Board's interpretations of
federal and state law de novo, see id. at 5, 11; Global NAPs I, 396
F.3d at 23, but we note that "it is customary where any doubt
exists to give some deference to the agency charged with
administering the statute," WorldNet, 497 F.3d at 11.
We have not yet had occasion to determine the correct
standard for reviewing other determinations by the Board, such as
its findings of facts and applications of the law in resolving
disputes over the terms of an agreement; however, we have noted
that other circuits have applied an arbitrary and capricious
standard. See Global NAPs I, 396 F.3d at 24 n.8 (citing MCI
Telecomms. Corp. v. Ohio Bell Tel. Co., 376 F.3d 539, 548 (6th Cir.
2004); U.S. West Commc'ns, Inc. v. Sprint Commc'ns Co., 275 F.3d
1241, 1248 (10th Cir. 2002); Sw. Bell Tel. Co. v. Waller Creek
Commc'ns, Inc., 221 F.3d 812, 816 (5th Cir. 2000); US West
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Commc'ns, Inc. v. MFS Intelenet, Inc., 193 F.3d 1112, 1117 (9th
Cir. 1999)); cf. WorldNet, 497 F.3d at 5 (stating that "[t]he
ordinary standards for reviewing agency decisions are deferential
(in varying degrees) as to matters of fact, policy and application
of general standards, but de novo as to questions of law").
Because we must evaluate the Board's decision regarding VOIP
traffic,8 a decision based on findings of fact and policy
determinations, we now must determine the appropriate standard of
review. The parties all agree that arbitrary and capricious review
applies. Our earlier decisions have implied that this standard of
review is the correct one, and we see no reason that "ordinary
standards for reviewing agency decisions," WorldNet, 497 F.3d at 5,
should not apply. We therefore adopt the position taken by our
sister circuits and explicitly hold that, "where no error of law
exists, the state agency's other determinations are reviewed under
the arbitrary and capricious standard," Global NAPs I, 396 F.3d at
24 n.8.
B. Billing Dispute Fees
We begin with PRTC's contention that, because the Board
lacks jurisdiction under Puerto Rico law to adjudicate claims for
damages between telecommunications carriers, it similarly lacks the
ability, when reviewing an interconnection agreement, to order or
8
See text ante p. 41.
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approve the insertion of monetary penalty provisions that are "akin
to an award of damages." PRTC Br. 27. As support, PRTC invites
our attention to two cases from Commonwealth courts that limited
the ability of the Board to act as a traditional court in
adjudicating actions for damages or for fines that would result
effectively in the payment of damages to a third party (rather than
to the Board itself). See Caribe Commc'ns, Inc. v. Puerto Rico
Tel. Co., 157 P.R. Dec. 203, 228 (2002); Pan Am. Tel. Co. v. Junta
Reglamentadora de Telecomunicaciones de Puerto Rico, Nos. KLRA
0300394, KLRA 0300400, KLRA 0300402, 2004 P.R. App. LEXIS 704 (P.R.
Cir. May 25, 2004). These precedents, PRTC believes, apply with
equal force to the Board's authority to impose terms in arbitrated
interconnection agreements providing for liquidated damages or
penalties without the consent of all of the parties.
This is not the first time we have considered the Board's
authority to adopt liquidated damages provisions in an
interconnection agreement. In WorldNet, we reviewed the Board's
decision to reject an arbitrator's order including a liquidated
damages provision in an interconnection agreement between PRTC and
WorldNet, another LEC, because the amount of liquidated damages did
not correspond to predicted actual damages, and thus was "intended
to punish [PRTC], not to compensate WorldNet." 497 F.3d at 4. We
took this statement to mean that the Board "assumed that liquidated
damages exceeding a reasonable estimate of damages to WorldNet were
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forbidden either by Puerto Rico law or by something inherent in the
concept of liquidated damages." Id. at 6.
We held that this assumption was erroneous. Not only are
Puerto Rico courts "more solicitous of liquidated damages clauses
than their Anglo-American counterparts," id. at 7,9 but the
interconnection agreements are also a special breed of contract,
one that mixes the commercial interests of the parties with the
policy interests of the federal and state governments. We noted
that
interconnection agreements are not ordinary
commercial contracts: the Act dictates their
creation; they are imposed by involuntary
arbitration and agency review if the parties
cannot agree; and their aim is to secure the
public benefit of competition. Incentive
payments not limited to actual damages (e.g.,
civil penalties and criminal fines) are
familiar devices to achieve public ends. So
courts, as a matter of federal law, have
allowed states to approve interconnection
9
This difference can be explained by the fact that courts
grounded in the traditions of the civil law of continental Europe,
such as the courts of Puerto Rico, see Borschow Hosp. & Med.
Supplies, Inc. v. Cesar Castillo Inc., 96 F.3d 10, 15 (1st Cir.
1996), take a more forgiving view of penalty clauses than courts
grounded in the traditions of the English common law. See
Aristides N. Hatzis, Having the Cake and Eating It Too: Efficient
Penalty Clauses in Common and Civil Contract Law, 22 Int'l Rev. L.
& Econ. 381, 383 (2002) (noting that in most civil law European
countries, "liquidated damages are readily enforced, as are penalty
clauses when they are not extravagant (sometimes even then) and
pure[] gambling"); cf. Richard A. Posner, Let Us Never Blame a
Contract Breaker, 107 Mich. L. Rev. 1349, 1352 n.12 (2009) ("[B]y
not distinguishing between liquidated damages clauses and penalty
clauses, the civil law expands freedom of contract, although civil
law judges do refuse to enforce clearly unreasonable damages
clauses." (internal quotation marks omitted)).
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agreements imposing liquidated damages that
include incentive elements exceeding actual
compensation.
Id. at 7. Although we acknowledged that the Board may wish to
prohibit such provisions as an independent policy choice, we held
that, in making that determination, "the Board must recognize that
neither the Act nor Puerto Rico precedent forbids incentive-based
liquidated damages . . . and that the Board should not assume an
inability to use cost-based liquidated damages." Id. at 8.
Recognizing the difficulty that WorldNet poses to its
position, PRTC attempts to explain why the doctrine of issue
preclusion should not prevent it from relitigating this issue even
though it failed to raise its theory about the Board's authority
during the WorldNet litigation. We do not think that the issue
before us is best regarded as one of issue preclusion, but simply
as one of binding precedent. Regardless of whether
WorldNet considered the particular theory now offered by PRTC, the
fundamental holding of WorldNet is that an arbitrated
interconnection agreement may contain liquidated damages provisions
that are designed to create incentives or to approximate costs and
are inserted over the objection of one of the parties.
Nevertheless, PRTC invites us to overrule (or at least to
distinguish) WorldNet based on PRTC's assertion that, despite the
general appropriateness of penalty clauses under commonwealth law,
Puerto Rico courts have denied the Board itself the power to
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require the addition of liquidated damages provisions into
arbitrated interconnection agreements. WorldNet addressed the
Board's perception that Puerto Rico law forbids penalty clauses as
a general matter. However, PRTC now has devised a new theory that
Puerto Rico law does not grant the Board specific jurisdiction to
impose liquidated damages provisions on unconsenting parties. In
other words, the old theory targeted the content of the provision,
and the new theory targets the scope of the Board's authority to
require the provision.
At the outset, we note that the Board did not actually
mandate the inclusion of the erroneous billing fee. Instead, it
declined to order the imposition of any fee related to billing
disputes and left to the parties the option to include--if they so
desired--reciprocal fee provisions. PRTC, apparently believing
that reciprocal fees would be better than no fees at all,
voluntarily agreed to include both the late payment fee and the
erroneous billing fee.10 Thus, PRTC's challenge is not directed at
10
PRTC asserts that it did not agree voluntarily to the
erroneous billing fee. Instead, PRTC was "coerced" into accepting
the lesser of two evils: "either losing something to which it is
lawfully entitled (i.e., the opportunity to recover the costs
associated with not being paid for services rendered) or accepting
a proposal in which PRTC still could recover its costs but at the
expense of being exposed to the risk of an unlawful penalty." PRTC
Br.29 n.6. This contention takes an overly narrow view of
voluntariness. PRTC may be entitled to be paid for its services,
but just as the prevailing party in a breach of contract action
usually is not entitled to its attorney's fees, PRTC is not
entitled to be compensated for the difficulty of collecting debts
owed to it. The standard measure of the lost use of funds is the
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the Board's authority to mandate terms, but instead at the
possibility of including such terms in an interconnection agreement
at all. That question actually is foreclosed by WorldNet: Puerto
Rico law does not prohibit liquidated damages provisions in
arbitrated interconnection agreements.
More fundamentally, PRTC's theory regarding the Board's
jurisdiction is unpersuasive. None of the cases that it relies on
apply to the Board's function in reviewing arbitrated
interconnection agreements. Instead, those cases address the
Board's role in adjudicating lawsuits between carriers. In Caribe
Communications, Inc. v. Puerto Rico Telephone Co., 157 P.R. Dec.
203, 208 (2002), a competing LEC sued PRTC before the Board for
breach of contract. The Board asserted jurisdiction to adjudicate
the matter on the rationale that Law 213 provided it with the power
to adjudicate suits between carriers. Id. at 209. The Supreme
Court of Puerto Rico disagreed, holding that Law 213 does not
permit the Board to hear a suit for damages. Id. at 228.
According to the court, Law 213 does not confer expressly such a
jurisdiction. Id. at 227-28. Moreover, the Board's assertion of
interest those funds would have earned, and the invoicing party
already receives the interest generated by the escrowed funds if it
prevails. The presence or absence of an additional late payment
fee is a matter of contractual agreement dictated in part by
external factors, such as federal and commonwealth policy. The
Commonwealth's policy in this instance is that reciprocal fees will
deter both parties from engaging in petty and meritless billing
disputes and are more equitable than a one-sided late payment fee.
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implicit authority contradicted the purposes of Law 213 by removing
the ability of litigants to utilize judicial procedures designed to
guarantee due process of law and by attempting to usurp a
quintessential aspect of the judicial power traditionally vested in
courts. Id.11
In Pan American Telephone Co. v. Junta Reglamentadora de
Telecomunicaciones de Puerto Rico, Nos. KLRA 0300394, KLRA 0300400,
KLRA 0300402, 2004 P.R. App. LEXIS 704, at *41 (P.R. Cir. May 25,
2004), the Puerto Rico Court of Appeals built upon Caribe's
rationale, holding that Law 213 also does not permit the Board to
impose administrative fines if those fines would be paid by one
telecommunications carrier to a third party, such as another
telecommunications carrier. The Board had promulgated regulations
providing for the imposition of fines upon telecommunications
providers to encourage compliance with the Act, Law 213 and Board
regulations. Some of these fines were payable to the Board, but
others were payable directly to another party harmed by a
violation. See id. at *34-37.
The court determined that this latter arrangement was
11
Subsequently, the Puerto Rico legislature amended Law 213
to provide the Board with "primary and exclusive jurisdiction for
adjudicating any damages and losses claim caused by any natural or
juridical person to a user [of telecommunications services], except
for claims between telecommunications and cable companies," under
$5,000 and arising out of violations of Law 213, Board regulations
or service contracts. P.R. Laws Ann. tit. 27, § 269j-1. This
amendment by its terms excludes suits for damages, of whatever
amount, between telecommunications carriers.
- 23 -
improper. According to the court, because the Board could not
adjudicate actions for damages between telecommunications
providers, it similarly was barred from imposing fines payable to
another provider harmed by a violation, which as a practical matter
was no different than awarding the provider damages. See id. at
*40-41.
At most, Caribe and Pan American stand for the
proposition that the Board may not adjudicate a claim for a billing
penalty filed by Centennial or PRTC against the other company or
decide to award the fee in a suit for breach of the agreement.
That limitation, however, bears no relation to the Board's review
of disputed terms in an arbitrated agreement, a function akin not
to awarding damages but to imposing regulatory requirements. See
Illinois Bell Tel. Co. v. Global NAPs Illinois, Inc., 551 F.3d 587,
591 (7th Cir. 2008) (noting that the "arbitration" specified by the
Act "is really the first stage in a regulatory proceeding"
conducted by the state commission in reviewing and approving the
agreement (quotation marks omitted)).
Although, as PRTC observes, Law 213 applies to the Board
in the exercise of all of its powers, including adjudications,
rulemaking and reviewing interconnection agreements, Caribe and Pan
American reach only the first of those functions. See WorldNet,
497 F.3d at 11 (holding that Caribe does not "establish any general
rule that the Board's powers are to be narrowly construed" in
- 24 -
setting standards in interconnection agreements, a function which
is not "historically associated with judicial authority"). The
Board has not assumed the power to adjudicate claims between
Centennial and PRTC. It did not decide that in a particular
instance a bill was justified or unjustified, nor has it awarded
judgment to Centennial or PRTC for an erroneous billing fee. The
Board simply has employed its review authority to determine that
creating a duty and a corresponding remedy in the contract would
further the goals of the Act. If, down the road, Centennial
believes that it is entitled to a fee and PRTC refuses to pay it,
Centennial still must bring an action against PRTC to recover.
Virtually every contract contains terms that contemplate
a future remedy of monetary damages.12 Thus, whenever the Board
imposes a term in an interconnection agreement, it creates the
framework for a potential award of damages. See, e.g., Global
NAPs, Inc. v. Verizon New Eng., Inc. (Global NAPs IV), 603 F.3d 71
(1st Cir. 2010) (appeal of an award of damages for payments owed
12
See 24 Richard A. Lord, Williston on Contracts § 64:1 (4th
ed. 2002) (explaining that "[t]he primary if not the only remedy
for injuries caused by nonperformance of most contracts is an
action for damages for the breach" and that, usually, "a judgment
for damages will be given for any breach of any contract, unless
the right has been suspended or discharged" (footnote omitted));
Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457,
462 (1897) ("The duty to keep a contract at common law means a
prediction that you must pay damages if you do not keep it,--and
nothing else.").
- 25 -
under an arbitrated interconnection agreement).13 The billing
dispute fees are no different; they create future remedies that the
parties may invoke upon the other party's erroneous billing or
unjustified refusal to pay a bill, and they are designed both to
incentivize attentive billing and payment practices and to
compensate the parties for the lost use of funds.
Although the contract itself specifies the proper amount
of liquidated damages (the "fee"), there is nothing exceptionable
about that arrangement. As WorldNet makes clear, incentive-based
or cost-based liquidated damages--at least as far as
interconnection agreements go--are permissible under Puerto Rico
law. Accordingly, we reaffirm our holding in WorldNet that Puerto
Rico law does not prevent the inclusion--whether voluntarily
negotiated, imposed by an arbitrator, or imposed by the Board--of
incentive- or cost-based liquidated damages in interconnection
agreements between telecommunications carriers.
13
See also, e.g., Illinois Bell Tel. Co. v. Global NAPs
Illinois, Inc., 551 F.3d 587, 591 (7th Cir. 2008) (holding that a
suit to collect charges provided for by an interconnection
agreement is based on state contract law); Core Commc'ns, Inc. v.
Verizon Pennsylvania, Inc., 493 F.3d 333 (3d Cir. 2007)
(determining the proper forum for a suit for damages predicated
upon breach of an interconnection agreement); ICG Telecom Grp.,
Inc. v. Qwest Corp., 375 F. Supp. 2d 1084 (D. Colo. 2005) (action
to compel arbitration over the payment of disputed bills as
provided for in an interconnection agreement); New Access Commc’ns,
L.L.C. v. Qwest Corp., 368 F. Supp. 2d 952 (D. Minn. 2005)
(examining an arbitration award of money damages for overcharges
made in violation of an interconnection agreement).
- 26 -
C. Direct Connection with Claro
We turn next to PRTC's claim that federal law preempts
the Board's decision to require PRTC to make commercially
reasonable efforts to facilitate a direct connection between
Centennial and Claro. PRTC's view is that by requiring PRTC to
facilitate the negotiation of a direct connection or lose its
transiting fees, the Board is using the threat of a penalty
obliquely to require Claro to agree to a direct interconnection
with Centennial, although the Act does not place an obligation on
mobile service carriers to interconnect directly with other
carriers. According to PRTC, this arrangement treads on an area
that Congress and the FCC intended to leave free from state
regulation.
Under the Supremacy Clause of Article VI of the
Constitution,14 Acts of Congress or pronouncements of "'a federal
agency acting within the scope of its congressionally delegated
authority'" may preempt inconsistent state laws or state regulatory
authority. Global NAPs, Inc. v. Verizon New Eng., Inc. (Global
NAPs III), 444 F.3d 59, 71 (1st Cir. 2006) (quoting Louisiana Pub.
Serv. Comm'n v. FCC, 476 U.S. 355, 369 (1986)). Sometimes
14
"This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which
shall be made, under the Authority of the United States, shall be
the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding." U.S. Const. art. VI, § 2.
- 27 -
preemption occurs through a clear statement of intent to preempt
state law. Other times preemption occurs when state law directly
conflicts with the dictates or purposes of federal law or when
Congress or an agency has created a regulatory framework so
comprehensive that it is intended to occupy the field to the
exclusion of state supplementation. See Weaver's Cove Energy, LLC
v. Rhode Island Coastal Res. Mgmt. Council, 589 F.3d 458, 472-73
(1st Cir. 2009); see also Verizon New Eng., Inc., 509 F.3d at 9
("State regulation, even when authorized by local law, must give
way not only ‘where Congress has legislated comprehensively' in a
field with an aim to occupy it, but also ‘where the state law
stands as an obstacle to the accomplishment and execution of the
full objectives of Congress.'" (quoting Louisiana Pub. Serv.
Comm'n, 476 U.S. at 368-69)).15
15
As we explained in Weaver’s Cove Energy, LLC,
To simplify a complex area of law, preemption
arguments are generally divided into three categories.
The first, express preemption, results from language in
a statute revealing an explicit congressional intent to
preempt state law. The second, field preemption, is that
Congress may implicitly preempt a state law by creating
a pervasive scheme of regulation. The third category is
conflict preemption. In this category, state law is pre-
empted to the extent it actually conflicts with federal
law, that is, when compliance with both state and federal
law is impossible, or when the state law stands as an
obstacle to the accomplishment and execution of the full
purposes and objectives of Congress.
Weaver's Cove Energy, LLC v. Rhode Island Coastal Res. Mgmt.
Council, 589 F.3d 458, 472-73 (1st Cir. 2009) (internal citations
and quotation marks omitted).
- 28 -
Certain state laws touching telecommunications, such as
those preventing competing LECs from entering the market, are
preempted by the terms of the Act. See 47 U.S.C. § 253(a).
Congress took pains, however, to preserve traditional state
authority over telecommunications services and to maintain a role
for states within the dual regulatory regime. For instance, § 252
provides that "nothing in this section shall prohibit a State
commission from establishing or enforcing other requirements of
State law in its review of an agreement, including requiring
compliance with intrastate telecommunications service quality
standards or requirements." Id. § 252(e)(3). Section 261
similarly states that the Act does not prevent a state "from
imposing requirements on a telecommunications carrier for
intrastate services that are necessary to further
competition . . . , as long as the State's requirements are not
inconsistent with" the Act or the FCC's implementing regulations.
Id. § 261(c).
Whether the Act or the FCC have preempted state
telecommunications regulation thus depends on a determination that
a specific requirement is "inconsistent" with federal law; that is,
that the state directly has violated a clear statement in the Act
or FCC rules, or that the state's chosen means of regulation
clearly interfere with a federal policy goal or a method of
achieving that goal. See Verizon New Eng., Inc., 509 F.3d at 9;
- 29 -
Global NAPs III, 444 F.3d at 72-75. Making this determination
requires us to examine carefully the specific language in the
congressional and FCC pronouncements that PRTC claims foreclose the
Board's decision.
PRTC locates explicit congressional intent to preempt
state regulation of mobile service interconnection in § 6002 of the
Omnibus Budget Reconciliation Act of 1993.16 Specifically, that act
provides that "no state or local government shall have any
authority to regulate the entry of or the rates charged by any
commercial mobile service . . . , except that this paragraph shall
not prohibit a State from regulating the other terms and conditions
of commercial mobile services." 47 U.S.C. § 332(c)(3)(A). PRTC's
reliance on this section is misplaced. On its face, § 332(c)
preempts only state attempts to prevent new mobile service carriers
from entering the market or to regulate the rates charged for
wireless services, neither of which situation is at issue here.
Any other state regulation of mobile service providers remains
unaffected.
PRTC also contends that direct connection is not required
by law, by which it means that the Act does not specify whether
mobile service carriers must connect directly or indirectly with
other telecommunications carriers. The Act places a general
16
Omnibus Budget Reconciliation Act of 1993 §
6002(b)(2)(A)(iii), Pub. L. No. 103-66, 107 Stat. 312, 394 (1993)
(codified in relevant part in 47 U.S.C. § 332).
- 30 -
interconnection obligation (direct or indirect) on all
telecommunications providers, including mobile service providers,
but imposes the stricter duty of direct connection and state
arbitration only on incumbent LECs. See id. § 251(a)-(c). As PRTC
contends, the FCC has declined to treat mobile service providers as
LECs subject to the more strenuous obligations in the three-tier
framework.17 See Atlas Tel. Co., 400 F.3d at 1262 & n.3 (explaining
that "[t]he FCC has determined that [mobile service] providers
qualify as telecommunications carriers, and thus are subject to the
provisions of § 251(a)" but distinguishing these provisions from
the obligations imposed on LECs in § 251(b)-(c) (internal quotation
marks omitted)); In re Implementation of the Local Competition
Provisions in the Telecomms. Act of 1996, 11 F.C.C.R. 15499, 15995-
96 (1996) (order from the FCC "declin[ing] at this time to treat
CMRS providers as LECs" and determining that "states are preempted
from requiring CMRS providers to classify themselves as 'local
exchange carriers'"). On this view, the Board lacks the authority
to require PRTC to facilitate negotiations because federal law does
not require Claro to connect directly or to engage in mandatory
interconnection arbitration.
Although sections 253 and 332 do not interfere with the
Commonwealth's power to establish regulations for the provision of
17
For an explanation of the three-tiers of obligations
imposed by the Act on various telecommunications entities, see the
discussion in section I.A., supra.
- 31 -
mobile services additional to the requirements of the Act, see 47
U.S.C. §§ 253(b), 332(c)(3)(A), we note, without deciding, that it
is not at all clear that the Act itself gives the Board the
authority to use the interconnection arbitration and review process
to impose interconnection requirements on an incumbent LEC-
affiliated mobile service carrier. See Qwest Corp. v. Arizona
Corp. Comm'n, 567 F.3d 1109, 1117 (9th Cir. 2009) (holding that
"all state commission arbitration authority under Section 252 is
inextricably tied to the duties imposed under Section 251" and
cannot be extended to duties created by other sections of the Act);
Qwest Corp. v. Pub. Utils. Comm'n of Colorado, 479 F.3d 1184, 1197
(10th Cir. 2007) (stating that the commission "may only compel an
[incumbent LEC] to arbitrate with respect to services that it is
under a duty to provide").
Here, however, the Board has set its sights not on Claro,
but on PRTC's transiting fee, a matter subject to arbitration under
the Act. Because of PRTC's refusal to articulate any sort of
justification for why it has impeded negotiations between
Centennial and Claro, the Board concluded that PRTC very likely was
motivated by a desire to raise Centennial's costs. As we have
noted, most mobile service providers in Puerto Rico have agreed to
establish direct connections with Centennial. The reason for this
is simple. By connecting directly where technically feasible, both
companies are able to lower their costs by cutting out the
- 32 -
middleman's transiting fee. The only person who would object to
such an arrangement would be the middleman himself. In this case,
however, the middleman controls Claro, giving it an obvious motive
to prevent direct connection and to impose a transiting fee that
raises Centennial's costs but has less of an effect on its own
(because Claro will not have to pay itself). Therefore, as a
condition of continuing to charge a transiting fee, the Board
included a requirement in the agreement that PRTC would use
commercially reasonable efforts to facilitate a direct connection.
WorldNet again provides important guidance. A second
issue in WorldNet was whether the Board could require PRTC to
provide a competing LEC with service performance standards
"superior to the service [PRTC] . . . provided to its own
customers." WorldNet, 497 F.3d at 8 (emphasis omitted). PRTC
contended that because the Act required incumbent LECs only to
provide service "at least equal in quality to that provided by the
local exchange carrier" to others, 47 U.S.C. § 251(c)(2)(C), the
Board had no authority to oblige incumbent LECs to provide any
greater amount of service. We disagreed. Although the Act does
not establish a right to superior service, we explained, the Act
does not forbid states from imposing requirements above those
mandated by Congress or the FCC. WorldNet, 497 F.3d at 9. We also
determined that Commonwealth law permitted the Board to impose such
requirements: "[T]he Board is endowed with general regulatory
- 33 -
powers and is entitled to read its grant of authority broadly."
Id. at 12.
To be sure, the Act itself also does not require PRTC to
facilitate negotiations as part of its obligation to interconnect
telecommunications carriers. Yet, it certainly does not forbid it,
nor does it forbid state commissions from exercising their own
authority in order to effectuate state policy. See id. at 7
("[L]ocal agencies make policy on their own[,] and section
252(e)(3) reserves the Board's authority to 'establish[] . . .
requirements of State law in its review of an agreement' (emphasis
added). And the Act, although imposing certain federal
requirements, is intended to defer to state agencies on matters
that do not compromise the achievement of federal aims." (third
alteration and ellipsis in original)). Law 213 grants the Board
the power to adopt policies promoting competition, efficient
service and consumer welfare and penalizing anti-competitive
practices. See P.R. Laws Ann. tit. 27, §§ 265, 267(a), 267f. It
was well within the scope of that power to target perceived anti-
competitive behavior and to adopt a policy--the denial of
transiting fees if PRTC's failure to facilitate negotiations cannot
be justified on business, technical or efficiency grounds--designed
to address that behavior and to promote competition, efficiency and
consumer welfare.
Finally, PRTC points to two orders issued by the FCC,
- 34 -
which declined to promulgate regulations that would establish
interconnection standards for mobile service carriers. In those
orders, the FCC stated that, because most mobile service providers
do not possess the same sort of market power in the provision of
local telecommunications services as does an incumbent LEC, the FCC
preferred to rely primarily on voluntary private agreements to
achieve interconnection. See In re Interconnection & Resale
Obligations Pertaining to Commercial Mobile Radio Servs., 15
F.C.C.R. 13523, 13528 (2008); In re Interconnection & Resale
Obligations Pertaining to Commercial Mobile Radio Servs., 10
F.C.C.R. at 10684-86. The FCC also stated that it stood ready to
intervene should later developments--such as attempts by LEC-
affiliated mobile service providers to impede efficient
interconnection--demonstrate a need for general standards. In re
Interconnection & Resale Obligations Pertaining to Commercial
Mobile Radio Servs., 10 F.C.C.R. at 10687-88. PRTC interprets
these decisions as establishing a clear intent on the part of the
FCC both to assert exclusive authority over mobile service
interconnection and to prevent states from interfering with its
scheme of voluntarily negotiated, private interconnection
agreements involving mobile service carriers.
We have stated previously that the structure created by
the Act demands that the FCC make its intent to foreclose state
regulation especially plain:
- 35 -
The requirement of a clear indication of
the agency's intent to preempt is especially
important in the context of the TCA, which
"divide[d] authority among the FCC and the
state commissions in an unusual regime of
'cooperative federalism,' with the intended
effect of leaving state commissions free,
where warranted, to reflect the policy choices
made by their states."
Global NAPs III, 444 F.3d at 72 (quoting Global NAPs, Inc. v.
Massachusetts Dep't of Telecomms. & Energy (Global NAPs II), 427
F.3d 34, 46 (1st Cir. 2005)) (alteration in original).
For example, in Global NAPs III, 444 F.3d 59, 75 (1st
Cir. 2006), we refused to find preemption of all state regulation
of intercarrier compensation for internet service provider traffic
where the FCC had issued a preemption order addressing only one
aspect of such compensation while "deferr[ing] fuller consideration
of a unified system of intercarrier compensation to a future
rulemaking." The order at issue in Global NAPs III provides an
example of the clarity the FCC employs when it intends to preempt
state regulatory authority:
The interim compensation regime we
establish here applies as carriers renegotiate
expired or expiring interconnection
agreements. It does not alter existing
contractual obligations, except to the extent
that parties are entitled to invoke
contractual change-of-law provisions. This
Order does not preempt any state commission
decision regarding compensation for ISP-bound
traffic for the period prior to the effective
date of the interim regime we adopt here.
Because we now exercise our authority under
section 201 to determine the appropriate
intercarrier compensation for ISP-bound
- 36 -
traffic, however, state commissions will no
longer have authority to address this issue.
In re Implementation of the Local Competition Provisions in the
Telecomms. Act of 1996, 16 F.C.C.R. 9151, 9189 (2001) (emphasis
added).
Nothing even approaching such a clear statement exists in
either order at issue in this case. The FCC's orders declined only
to promulgate rules of general applicability. See In re
Interconnection & Resale Obligations Pertaining to Commercial
Mobile Radio Servs., 15 F.C.C.R. at 13532 ("We do not think there
is an adequate record to support regulations addressing such issues
. . . ."); In re Interconnection & Resale Obligations Pertaining to
Commercial Mobile Radio Servs., 10 F.C.C.R. at 10668 (concluding
that "at present it would be premature for the Commission to
propose or adopt rules of general applicability requiring direct
interconnection arrangements between CMRS providers"). A
determination that it would be imprudent to adopt a rule imposing
interconnection standards and obligations on every mobile service
provider at the national level is a far cry from a determination
that state commissions should be barred from imposing requirements
on individual LECs in the context of an arbitrated interconnection
agreement because they might affect wireless interconnection. Cf.
WorldNet, 497 F.3d at 9, 12 (explaining that the FCC's inability to
promulgate general regulations does not circumscribe a state
commission's power to effectuate state policy when reviewing
- 37 -
interconnection agreements); Indiana Bell Tel. Co., 362 F.3d at 393
("[W]e do not agree with the premise . . . that because the FCC may
not implement a blanket regulation requiring superior quality, the
[state commission] may not require acceptance testing when, after
individualized review, it finds it to be in the public interest and
a means of promoting competition in [the state].").
The Board did not adopt a regulation requiring all mobile
service providers in Puerto Rico to agree to direct connections
from all suitors. Indeed, it did not even require Claro to
interconnect directly. Instead, it offered PRTC an opportunity
either to facilitate negotiations or to explain why its failure to
do so was justified on any business, technology or efficiency
ground other than to raise its rival's costs. This obligation
extends only to "commercially reasonable efforts." R.1, Ex. 4 at
14. If PRTC can offer a reason for not connecting Claro directly
with Centennial other than anti-competitive animus, the Board will
decline to take action, thereby preserving Claro's ability "to
provide interconnection . . . either directly or indirectly, based
upon [its] most efficient technical and economic choices." In re
Implementation of the Local Competition Provisions in the
Telecomms. Act of 1996, 11 F.C.C.R. at 15991.
The Board's requirement also does not interfere with the
FCC's policy goal of fostering voluntary interconnection agreements
- 38 -
with mobile service providers.18 In declining for the time being
to promulgate general interconnection obligations for mobile
service carriers, the FCC noted the possibility that "LEC-
affiliated CMRS carriers may have a unique incentive to deny
interconnection so as to keep CMRS-to-CMRS traffic interconnected
through the local exchange landline network, and to continue to
collect CMRS interconnection charges from both sets of CMRS
providers through their access charge structures." In re
Interconnection & Resale Obligations Pertaining to Commercial
Mobile Radio Servs., 10 F.C.C.R. at 10688. The FCC also stated
that "some potential might exist for CMRS providers to raise their
rivals' costs by denying direct interconnection, or increasing the
price of direct interconnection to the price charged by the LEC for
indirect interconnection." Id. at 10682-83.
Given that the FCC's statements focus on the behavior
that the Board is attempting to address here, we cannot find a
clear indication on the part of the FCC to preempt attempts by
state commissions to address the fee structure charged by incumbent
LECs in order to remove an incentive for anti-competitive and
18
Cf. Verizon New Eng., Inc. v. Maine Pub Utils. Comm'n, 509
F.3d 1, 9 (1st Cir. 2007) (finding a state commission's ability to
impose interconnection requirements preempted where the
requirements were "in direct conflict with specific FCC policies"
designed to "free the carriers from such compulsion"); Wisconsin
Bell, Inc. v. Bie, 340 F.3d 441 (7th Cir. 2003) (holding that a
state requirement that incumbent LECs file a tariff directly
frustrated the Act's system of negotiated agreements because it
damaged the bargaining position of the incumbent LECs).
- 39 -
inefficient interconnection arrangements. Moreover, the FCC's
promise to remain "particularly vigilant in policing, where they
exist, any efforts by CMRS providers to deny interconnection in
order to gain an unfair competitive advantage," id. at 10687, was
not, as PRTC asserts, a statement of an intent to occupy the field,
but instead a promise to keep an eye out in case it needed to
"revisit the need for adopting interconnection rules of general
applicability." Id. (emphasis added). On an intent to occupy the
field, "it is, at best, ambiguous . . . , and ambiguity is not
enough to preempt state regulation here." Global NAPs III, 444
F.3d at 72.
To summarize, we hold that because Law 213 authorizes the
Board to foster competition in the market for telecommunications
services and because federal law does not preempt the Board's
decision to require PRTC to use commercially reasonable efforts to
facilitate a direct connection between Centennial and Claro, the
Board's order was proper. First, neither the Act nor the FCC
orders contain a clear statement of "an explicit . . . intent to
preempt state law." Weaver's Cove Energy, LLC, 589 F.3d at 472.
Second, the Act has not "creat[ed] a pervasive scheme of
regulation," id., that implicitly preempts state authority to
regulate anti-competitive practices by incumbent LECs. Quite the
contrary, the Act's scheme of coordinate federalism explicitly
preserves a role for states to implement policy in their review of
- 40 -
interconnection agreements. Finally, the Board's order does not
stand "in direct conflict with specific FCC policies" or "as an
obstacle to the accomplishment and execution of the full objectives
of Congress." Verizon New Eng., Inc., 509 F.3d at 9 (quotation
marks omitted).
D. VOIP Traffic
We turn, then, to PRTC's final contention, which is that
we should reverse the district court's holding that the Board's
decision not to enumerate VOIP separately as a permissible traffic
activity was arbitrary and capricious. According to PRTC, VOIP is
a kind of technology, not a kind of traffic, and thus at least some
of the calls placed through VOIP technology can be covered by
enumerated traffic types. Given this distinction, PRTC asserts,
the Board's decision not to enumerate VOIP was rational and avoided
the possibility of creating new, unforeseen problems. Centennial
asserts, however, that the Board committed a clear, irrational
error of logic by acknowledging that the parties already exchange
VOIP traffic and limiting the meet points to specified classes of
traffic, yet refusing to include VOIP among the permissible types
of traffic. The Board does not defend its decision at all.19
19
The Board does not contest the district court's
determination, nor does it explain how it reached the decision it
did. Instead, its only comment on the matter is:
The Board does not join [PRTC's] argument. The district
- 41 -
Under the arbitrary and capricious standard of review, an
agency's decision will be upheld unless "the agency lacks a
rational basis for making the determination or if the decision was
not based on consideration of the relevant factors." River St.
Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir. 2009)
(quotation marks omitted).
If the district court is correct that VOIP is a kind of
traffic, then one might conclude from reviewing the record that the
Board "commit[ted] a clear error of judgment," Town of Winthrop v.
Fed. Aviation Admin., 535 F.3d 1, 8 (1st Cir. 2008), justifying
reversal. On the other hand, if VOIP is merely a technology
already covered in part by other categories, then that would
explain how the Board could say simultaneously that only enumerated
traffic types could be exchanged at meet points and that the
parties already were exchanging VOIP calls. That decision would,
moreover, be based on a consideration of the relevant factors, such
as a lack of history of disputes over VOIP calls, uncertainty about
future FCC action and the potential that enumerating VOIP traffic
court's opinion held that VOIP traffic should be included
in the enumerated categories to the extent they are not
already covered by those categories. If, as PRTC argues,
VOIP is covered by the existing enumerated categories of
traffic to be exchanged, then there is no issue. If not,
then, given that the parties are already exchanging such
traffic, the Board does not object [to] confirming this
practice by including VOIP traffic in the interconnection
agreement.
Board Br. 36-37 (internal citation omitted).
- 42 -
separately could create new problems.
Unfortunately, whether VOIP already is covered by the
parties' interconnection agreement is an unresolved question. PRTC
asserts that VOIP is a technology, but that does little to resolve
the central question: whether VOIP calls are subsumed by types of
traffic enumerated in the agreement. On that point, PRTC
equivocates, saying only that "VOIP technology may very well be."
PRTC Br. 54. Nor does the Board do much to clarify its decision,
telling us only that if VOIP is already covered, then there is no
issue.
We are hesitant to insert ourselves into the
classification and regulation of VOIP traffic on such a muddled
record. VOIP presents a number of sensitive technical and policy
considerations better left to the FCC and state commissions. Some
VOIP calls originate on a computer and terminate at a telephone, or
vice versa. Other VOIP calls, however, both originate and
terminate on an actual telephone; for this type of call, the
internet provides the medium of transmission on at least one end of
the conversation. There are obvious differences between these
types of calls. The FCC may choose to treat each configuration in
a different way; conversely, it may choose to treat them in the
same way, or not to regulate them at all.
In addition, at argument, counsel for the Board explained
that a key consideration in refusing to enumerate VOIP separately
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was its fear that Centennial would use a general VOIP category as
a Trojan horse to give it access to the meet points for types of
calls for which it would otherwise owe PRTC separate compensation.
Given the possibility for abuse, the lack of past
disputes and the uncertain regulatory environment, we believe the
Board was wise to keep its powder dry and save final resolution of
the VOIP question for a later day. Cf. Town of Winthrop, 535 F.3d
at 13 (holding that, when an agency is faced with an "area of
research . . . still developing," it is not arbitrary and
capricious to decline to take action while "evaluat[ing] the issue
more fully").
Although we agree with the district court that the
Board's language is confusing, we believe that the Board's order
meant to convey that some, if not all, VOIP traffic has been and
will continue to be exchanged at the meet points under other,
specifically enumerated headings. See FCC v. Fox Television
Stations, Inc., 129 S. Ct. 1800, 1810 (2009) (stating that a court
"should 'uphold a decision of less than ideal clarity if the
agency's path may reasonably be discerned'" (quoting Bowman
Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281,
286 (1974))). Nothing in the Act mandates that the Board permit
all types of VOIP traffic to be exchanged, so the exclusion of
certain types of calls not covered by enumerated traffic categories
is permissible. If later disputes create a need for specific
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intervention, then the Board can tailor a remedy to the specific
problems presented before it. Moreover, the Board can certainly
take into account PRTC's representations during this litigation in
assessing a proper response to any future problems.
Conclusion
We hold that neither Puerto Rico nor federal law cabin
the Board's authority as narrowly as PRTC contends. The Board
possesses the power under Puerto Rico law to impose liquidated
damages clauses in telecommunications interconnection agreements.
Moreover, federal law does not prevent the Board from regulating
potentially anti-competitive behavior associated with transiting
fees charged by incumbent local exchange carriers. We also hold
that the Board's reluctance to enumerate VOIP calls separately was
supported by a consideration of relevant factors and possessed a
rational basis. Accordingly, the judgment of the district court is
affirmed in part and reversed in part, and we remand to allow the
district court to enter summary judgment for the Board. The
parties shall bear their own costs in this appeal.
AFFIRMED in PART and REVERSED in PART.
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