Connect Communications Corp. v. Southwestern Bell Telephone, L.P.

467 F.3d 703, 2006 U.S. App. LEXIS 26811, 2006 WL 3040611
CourtCourt of Appeals for the Eighth Circuit
DecidedOctober 27, 2006
Docket05-3698
StatusPublished
Cited by22 cases

This text of 467 F.3d 703 (Connect Communications Corp. v. Southwestern Bell Telephone, L.P.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Connect Communications Corp. v. Southwestern Bell Telephone, L.P., 467 F.3d 703, 2006 U.S. App. LEXIS 26811, 2006 WL 3040611 (8th Cir. 2006).

Opinions

HANSEN, Circuit Judge.

This case involves telephone calls placed from Southwestern Bell Telephone Company (SWBT) telephone customers to the individual customer’s internet service provider (ISP), where the ISP is a telephone customer of a different telephone company, Connect Communications Corporation (Connect). All the involved telephone customers are located within the same local exchange area. After the Arkansas Public Service Commission (APSC) approved an Interconnection Agreement between Connect and SWBT, the parties disputed whether these ISPbound calls were local calls, which would subject them to reciprocal compensation under the Interconnection Agreement, or whether the calls were non-local. After years of litigation and several decisions at various administrative and judicial levels, the APSC determined that the ISP-bound calls were not local calls under the Interconnection Agreement. The district court1 found that determination not to be arbitrary or capricious and upheld the APSC’s decision. Connect appeals, and we affirm.

I. Background

This litigation began in 1998, shortly after SWBT and Connect had entered into an Interconnection Agreement on June 23, 1997. SWBT, as an incumbent local exchange carrier (ILEC), had a duty to negotiate and enter into an interconnection agreement with Connect, a competitive local exchange carrier (CLEC), under the Telecommunications Act of 1996 (the Act). See 47 U.S.C. § 251(c)(1), (2). Rather than negotiate an interconnection agreement of its own with SWBT, Connect chose to adopt the interconnection agreement previously negotiated by SWBT with Brooks Fiber Communications of Arkansas, Inc. (Brooks Fiber) in August 1996, a procedure allowed under the Act. See 47 U.S.C. § 252(1); 47 C.F.R. § 51.809. The APSC approved the SWBT-Connect Interconnection Agreement on October 24, 1997, and neither party sought review of the Interconnection Agreement in federal district court pursuant to 47 U.S.C. § 252(e)(6).

The Interconnection Agreement divides the telecommunications traffic between the two telephone companies into four categories: local traffic, through-put traffic, intraLATA interexchange traffic, and interLATA interexchange traffic. (Appellant’s Add. at 48.) The Interconnection [705]*705Agreement classifies “[c]alls originated by one Party’s end users and terminated to the other Party’s end users ... as local traffic ... if the call originates and terminates in the same SWBT exchange area” (id.) and provides for reciprocal compensation for the termination of local traffic (id. at 49). Although the Interconnection Agreement does not define “terminate,” it does define “terminating traffic” as “a voice-grade switched telecommunications service which is delivered to an end-user(s) as a result of another end user’s attempt to establish communications between the parties.” (Id. at 57.)

At the time that SWBT and Connect were entering into the Interconnection Agreement, the FCC had not determined whether traffic transmitted to ISPs was subject to reciprocal compensation as local traffic under the Act or not. In an FCC Order issued on May 16, 1997, the FCC noted that since an earlier ruling in 1983, ISPs had not been required to pay interstate access charges and were allowed to purchase services from ILECs under the same intrastate tariffs available to end users. See In the Matter of Access Charge Reform Price Cap Performance Review for Local Exchange Carriers Transport Rate Structure and Pricing End User Common Line Charges, 12 F.C.C.R. 15982, 16132-33, 1997 WL 268841 (F.C.C. May 16, 1997) (hereinafter 1997 FCC Order). The FCC concluded in the 1997 FCC Order “that the existing pricing structure for ISPs should remain in place.” Id. at 16133. Thus, for tariff purposes, calls placed to ISPs were treated as local calls. At that time, there was debate in the industry about whether ISPs acted more like end users, such that a call to an ISP is terminated at the ISP’s server, or more like interexchange carriers, providing a connection to the Internet. See id. at 16275 (discussing AOL’s and PacTel’s opposing arguments).

In 1999, the FCC determined that ISP-bound traffic was “largely interstate,” but that this conclusion “does not in itself determine whether reciprocal compensation is due in any particular instance.” See In the Matter of Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, 14 F.C.C.R. 3689, 3690, 1999 WL 98037 (F.C.C. Feb.26, 1999) (ISP Declaratory Ruling). The FCC recognized that prior to this time, it had consistently treated enhanced service provider (ESP) traffic as local for purposes of interstate access charges despite its interstate character, and that parties may have agreed, or state commissions may have mandated, that reciprocal compensation applied to ISP-bound traffic. Thus, the FCC “conclude[d] that parties should be bound by their existing interconnection agreements, as interpreted by state commissions.” Id. The FCC noted that in interpreting prior interconnection agreements, state commissions should consider all of the relevant facts, including the parties’ negotiations in light of the FCC’s “longstanding policy of treating this traffic as local, and the conduct of the parties pursuant to those agreements.” Id. at 3704.

The D.C. Circuit vacated portions of the FCC’s ISP Declaratory Ruling, concluding that the FCC did not adequately explain its reliance on an “end to end” jurisdictional analysis to support its conclusion that ISP-bound traffic was not local and thus not subject to reciprocal compensation. See Bell Atlantic Tel. Cos. v. FCC, 206 F.3d 1, 6-7 (D.C.Cir.2000). On remand from the D.C. Circuit, the FCC again concluded that ISP-bound calls were not subject to reciprocal compensation, though under a different rationale. This time, the FCC concluded that Congress excluded traffic listed in 47 U.S.C. § 251(g) from telecommunications traffic subject to recip[706]*706rocal compensation. One of the items included in § 251(g) is “information access,” which the FCC determined included ISP-bound traffic. See In the Matter of Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, 16 F.C.C.R. 9151, 9153 (F.C.C. Apr.27, 2001) (Remand Order). Again, the FCC reiterated that its order applied prospectively only to renegotiated or expiring interconnection agreements; “[i]t does not alter existing contractual obligations.” Id. at 9189.

Once again, on appeal the D.C. Circuit remanded the case back to the FCC. See WorldCom, Inc. v. FCC, 288 F.3d 429, 430 (D.C.Cir.2002). The court found the FCC’s reliance on § 251(g) misplaced, as that section was merely a transitional device to preserve the status quo until the FCC could adopt rules to implement the Act. Id.

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Bluebook (online)
467 F.3d 703, 2006 U.S. App. LEXIS 26811, 2006 WL 3040611, Counsel Stack Legal Research, https://law.counselstack.com/opinion/connect-communications-corp-v-southwestern-bell-telephone-lp-ca8-2006.