CGM, LLC v. BellSouth Telecommunications, Inc.
664 F.3d 46
| 4th Cir. | 2011Background
- CGM, LLC, a billing agent for competitive LECs, sues BellSouth for failing to pass the full value of retail promotions to CGM's competitive LEC clients.
- CGM is not an incumbent LEC, not a competitive LEC, and not a party to any interconnection agreement.
- The district court dismissed the case under Rule 12(b)(6) on standing grounds, rejecting CGM's claimed rights under the 1996 Act and related federal law.
- The 1996 Act requires incumbents to sell wholesale to competitive LECs and to offer resale at wholesale rates, with interconnection agreements implementing those duties.
- Interconnection agreements govern the resale duties; the Local Competition Order and 51.613 do not create standalone, enforceable rights for CGM absent a party to an interconnection agreement.
- The Fourth Circuit affirmatively held that CGM lacks statutory standing and that the Declaratory Judgments Act provides no independent basis for relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does CGM have statutory standing to sue BellSouth under the 1996 Act | CGM argues it has rights under §251(c)(4)/§51.613 through interconnection and resale duties. | CGM lacks rights under the 1996 Act because it is not a party to an interconnection agreement. | CGM has no statutory standing; no rights under §251(c)/§51.613 absent an interconnection agreement. |
| Can CGM sue under 401(b) to enforce FCC orders | CGM asserts standing via 47 U.S.C. § 401(b) to enforce FCC orders. | Section 401(b) orders must involve concrete rights/obligations for the plaintiff; here they do not. | Section 401(b) does not confer standing here; the challenged rules are not enforceable against BellSouth as CGM lacks direct rights. |
| Does the Declaratory Judgments Act create standing | CGM seeks declaratory relief based on substantive claims under the 1996 Act. | DJA provides no independent basis where substantive claims fail. | DJA claim fails because the substantive claims fail. |
| Was dismissal appropriate under Rule 12(b)(6) for lack of standing | CGM asserts a cognizable statutory claim capable of redress. | Standing is lacking; complaint fails to state a claim upon which relief can be granted. | Dismissal affirmed; district court properly dismissed for lack of statutory standing. |
Key Cases Cited
- New Eng. Tel. & Tel. Co. v. Pub. Utils. Comm'n of Me., 742 F.2d 1 (1st Cir. 1984) (enforcement of FCC orders under §401(b) depends on nature of order (adjudicatory vs. rulemaking))
- Mallenbaum v. Adelphia Commc'ns Corp., 74 F.3d 465 (3d Cir. 1996) (private enforcement under §401(b) depends on whether order requires concrete actions)
- Verizon Md., Inc. v. Global NAPs, Inc., 377 F.3d 355 (4th Cir. 2004) (interconnection agreements are vehicles to implement §251 duties)
- AT&T Commc'ns of the S. States, Inc. v. BellSouth Telecomms., Inc., 229 F.3d 457 (4th Cir. 2000) (acknowledges negotiated interconnection agreements may differ from §251 requirements)