At & T Communications of CaliFornia, Inc. v. Pac-West Telecomm, Inc.
651 F.3d 980
9th Cir.2011Background
- AT&T and Pac-West, both CLECs in California, exchange ISP-bound traffic indirectly via ILECs and operate without an interconnection agreement.
- Pac-West filed state-tariff-based claims for reciprocal compensation against AT&T for ISP-bound traffic terminated since 2001.
- CPUC ruled that the federal ISP Remand Order did not apply to CLEC-to-CLEC ISP-bound traffic and relied on Pac-West tariffs.
- AT&T sued in federal court seeking preemption of CPUC’s order and return of funds paid.
- The district court granted summary judgment to Pac-West and CPUC, holding no preemption by the ISP Remand Order for CLEC-to-CLEC traffic.
- The Ninth Circuit held the ISP Remand Order does apply to ISP-bound traffic between two CLECs, preempting state tariff-based recovery.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ISP Remand Order governs CLEC-to-CLEC ISP-bound traffic | AT&T contends ISP Remand Order covers CLEC-CLEC ISP-bound traffic | Pac-West/CPUC argue it applies only to CLEC-ILEC traffic | Yes, ISP Remand Order applies to CLEC-CLEC ISP-bound traffic |
| Scope of preemption of state tariffs | Federal regime preempts state tariffs for ISP-bound traffic | State tariff framework remains controlling unless preempted | Preemption applies to the ISP-bound traffic at issue |
| Interpretation of 'new markets' rule versus mirroring rule | New markets rule could apply broadly; mirroring not required | New markets rule limited by mirroring and context | ISP Remand Order applies broadly to ISP-bound traffic, with mirroring ensuring parity; no narrow exclusion for CLECs |
| FCC amicus interpretation deference | FCC interpretation should be given less deference | FCC interpretation should be accorded deference when reasonable | FCC interpretation adopted by the court is reasonable and persuasive |
| NPRM footnote and CLEC-to-CLEC implications | NPRM suggested no need to extend rules to CLECs; not dispositive | NPRM footnote does not limit scope of ISP Remand Order | NPRM context does not bar ISP Remand Order application to CLEC-CLEC ISP-bound traffic |
Key Cases Cited
- Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197 (9th Cir. 2009) (preemption and federal regulatory authority considerations)
- Peevey v. Pacific Gas & Elec. Co., 462 F.3d 1142 (9th Cir. 2006) (intercarrier rules preemption and ISP Remand Order scope)
- WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002) (D.C. Circuit remand and legal justification issues for ISP Remand Order)
- Core Commc'ns, Inc. v. FCC, 592 F.3d 139 (D.C. Cir. 2010) (upholding ISP Remand Order framework and forbearance decisions)
- Global NAPs Cal., Inc. v. Pub. Utils. Comm'n of Cal., 624 F.3d 1225 (9th Cir. 2010) (preemption and intercarrier compensation for ISP-bound traffic)