T-Mobile Wins Long-Running Interconnection Dispute in First Circuit
An interconnection agreement between T-Mobile and the Puerto Rico Telephone Company wasn’t discriminatory, because Section 252(i) of the Communications Act allows other entities to opt into an interconnection agreement under certain conditions, the 1st U.S. Circuit Court of Appeals ruled Wednesday. The dispute concerned $2 million in fees (http://xrl.us/bm558j). It’s the first time the 1st Circuit articulated a standard of review for determining when an interconnection agreement (ICA) is discriminatory in violation of Sections 251-252, the Boston court said.
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"We hold that in the circumstances of this case, Section 252(i) and its implementing regulations preclude any finding that the ICA is discriminatory,” wrote Chief Judge Sandra Lynch for the 3-0 court. “There may be other circumstances where Section 252(i) is insufficient to protect against certain forms of discrimination, but PRTC has not explained what they are or demonstrated that those conditions are present here."
The lawsuit stems from a billing disagreement ten years ago. ICAs entered into by T-Mobile and PRTC in 1999 and 2001 said certain “intrastate access” services would be billed at a rate contained in PRTC’s federal tariff filed with the FCC. In 2002, PRTC decided to bill T-Mobile a higher rate found in PRTC’s local tariff. After the Telecommunications Regulatory Board of Puerto Rico ruled in favor of T-Mobile as a matter of Puerto Rico contract law, a district court vacated the order and granted summary judgment for PRTC, saying the decision resulted in the ICA discriminating against third-party carriers.
In reversing the district court, the 1st Circuit said the agreement was neither discriminatory nor in violation of federal law. “On its face, Section 252(i) operates to prevent discrimination in ICAs in usual circumstances,” the court wrote. “If one company adopted an ICA, any other company which felt it was discriminated against could opt-in and gain the benefits of the terms of that agreement, negating any discrimination against that other company.” Section 251(i) says a LEC “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,” Lynch wrote.
The court rejected PRTC arguments that the right to opt-in is not automatic, and that 252(i) can’t prevent discrimination because not every carrier that purchases facilities is eligible to opt into an existing interconnection agreement. “This argument is misplaced,” the court wrote, finding PRTC’s argument was based on substantive rules defining the scope of the interconnection obligations under a different subsection of the act. “The question of the substantive obligations created under the [Act] vis-à-vis different types of carriers is a separate, and antecedent, question from whether there is a limitation on the scope of the opt-in ability under § 252(i),” Lynch wrote.
The court said the regulatory board’s decision didn’t violate the filed rate doctrine, which requires entities who file tariffs with the FCC to apply those rates only if all conditions of the tariff have been complied with. The doctrine wasn’t implicated because the services provided have been classified as intrastate in nature, the court ruled. “Federal law does not prevent the parties to an ICA from agreeing to provide a service with reference to the rate provided in the federal tariff where the special access service is intrastate in nature.”