GLOBAL NAPs, INC., Plaintiff, Appellee/Cross-Appellant, v. MASSACHUSETTS DEPARTMENT OF TELECOMMUNICATIONS AND ENERGY; Paul B. Vasington, in his capacity as Commissioner; James Connelly, in his capacity as Commissioner; W. Robert Keating, in his capacity as Commissioner; Deirdre K. Manning, in her capacity as Commissioner; Eugene J. Sullivan, in his capacity as Commissioner; and Verizon New England, Inc., Defendants, Appellants/Cross-Appellees.
Nos. 04-2313, 04-2334, 04-2397.
United States Court of Appeals, First Circuit.
Heard Sept. 16, 2005. Decided Oct. 18, 2005.
427 F.3d 34
William J. Rooney, Jr., with whom Jeffrey C. Melick was on brief, for Global NAPs, Inc.
Daniel J. Hammond, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for Massachusetts Department of Telecommunications and Energy and Paul B. Vasington, James Connelly, W. Robert Keating, Deirdre K. Manning, and Eugene J. Sullivan, in their official capacities as Commissioners.
Before LYNCH and HOWARD, Circuit Judges, and RESTANI,* Judge.
LYNCH, Circuit Judge.
This case raises a new issue of importance under the
The district court concluded that the Full Faith and Credit Clause compelled application of the doctrine. Its order bound the Massachusetts Department of Telecommunications and Energy (DTE), which was interpreting a Massachusetts interconnection agreement between Global NAPs, Inc. (Global) and Verizon New England, Inc. (Verizon), to follow the earlier decision of the Rhode Island Public Utility Commission (RIPUC) as to the effect of a prior order by the Federal Communications Commission (FCC) on the parties’ Rhode Island interconnection agreement. On de novo review, we reverse. The district court‘s reasoning is contrary to the language of and policies behind the TCA.
The DTE ruled on June 24, 2002 that Verizon did not owe the reciprocal compensation sought. On Global‘s federal court challenge to the DTE order, the court vacated and remanded the DTE order, ruling that the DTE could not base its decision on an interpretation of the interconnection agreement that was contrary to the interpretation reached by the RIPUC on that point; its remand, however, also allowed that differences between Massachusetts and Rhode Island law might lead the DTE to a different ultimate outcome as to payment of reciprocal compensation. Global NAPs, Inc. v. Verizon New Eng., Inc. (Global NAPs II), 332 F.Supp.2d 341, 374-75 (D.Mass.2004). Verizon and the DTE took this interlocutory appeal. We reverse and remand to the district court for further proceedings consistent with this opinion.1
I.
The TCA was enacted to “promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers.”
The TCA imposes a number of duties on local exchange carriers. See
The TCA requires ILECs to negotiate interconnection agreements with CLECs to provide the terms of interconnection and “fulfill the duties” enumerated in
A long-running battle has ensued over whether ISP-bound traffic is “local telecommunications traffic” subject to reciprocal compensation within the meaning of the TCA. See, e.g., Bell Atl. Tel. Cos. v. FCC, 206 F.3d 1, 2-3 (D.C.Cir.2000). The debate centers around the question of whether ISP traffic “terminates” at an ISP when a user in one state dials into a local ISP and visits a website hosted on a server in another state. The issue could be argued both ways. One could consider such calls to terminate at the ISP, with communications between the ISP and the out-of-state website considered a separate transaction unrelated to the call. Alternatively, one might consider the call to have terminated in the state where the web server is located. See id. at 5. Generally, CLECs like Global tend to have more ISP customers than do ILECs like Verizon. Since ISPs receive calls that are generally much longer than voice calls, and do not place calls of their own, carriers with more ISP customers will be net beneficiaries of a reciprocal compensation scheme that includes ISP traffic. CLECs and ILECs, then, have opposing interests. See id. at 3.
In 1998, Global and Verizon began negotiations for an interconnection agreement in Rhode Island. Global NAPs II, 332 F.Supp.2d at 350. Rather than submitting their dispute over reciprocal compensation for ISP traffic to arbitration, Verizon and Global agreed to the following compromise provision, § 5.7.2.3, the language of which is at the heart of the present dispute:
The Parties ... disagree as to whether ... “ISP Traffic” ... constitutes Local Traffic as defined herein, and the charges to be assessed in connection with such traffic. The issue of whether such traffic constitutes Local Traffic on which reciprocal compensation mus[t] be paid pursuant to the [TCA] is presently before the FCC in CCB/CPD 97-30 and may be before a court of competent jurisdiction. The Parties agree that the decision of the FCC in that proceeding, or [of] such court, shall determine whether such traffic is Local Traffic (as defined herein) and the charges to be assessed in connection with ISP Traffic. If the FCC or such court determines that ISP Traffic is Local Traffic, as defined herein, or otherwise determines that ISP Traffic is subject to reciprocal compensation, it shall be compensated as Local Traffic under this Agreement unless another compensation scheme is required under such FCC or court determination. Until resolution of this issue, [Verizon] agrees to pay GNAPS Reciprocal Compensation for ISP traffic .... (emphasis added)
On February 26, 1999, the FCC issued its ruling in Docket No. CCB/CPD 97-30, the proceeding specifically referred to in § 5.7.2.3.2 In this decision, the FCC concluded that ISP-bound traffic is “largely interstate” and thus did not fall under the reciprocal compensation duties imposed by
Soon after the FCC issued the Internet Traffic Order, Verizon stopped making reciprocal compensation payments to Global under the Rhode Island interconnection agreement and other agreements containing § 5.7.2.3. Global filed a complaint with the RIPUC under the Rhode Island agreement, contending that it was entitled to continued payments because the condition for non-payment—“resolution of [the] issue“—had not been met: it argued that the Internet Traffic Order had left to state commissions the ability to determine whether reciprocal compensation payments were required under “contractual principles or other legal or equitable considerations.” Verizon argued to the contrary: that the FCC had effectively resolved the issue in deciding that ISP traffic was non-local interstate traffic not subject to the reciprocal compensation duties imposed by
Meanwhile, in Massachusetts, the story developed quite differently. Global NAPs and Verizon‘s first interconnection agreement in Massachusetts was signed in
On March 24, 2000, in the first appeal of the Internet Traffic Order, the D.C. Circuit vacated the Internet Traffic Order and remanded to the FCC, finding that the FCC‘s rationale for treating ISP-bound traffic as interstate traffic for the purposes of reciprocal compensation was inadequate. See Bell Atl. Tel. Cos., 206 F.3d at 9. The D.C. Circuit was to revisit this issue later.
In the interim, on June 16, 2000, the FCC approved the merger of Verizon‘s predecessors into Verizon. See Application of GTE Corp., Transferor, and Bell Atl. Corp., Transferee (Merger Order), 15 F.C.C.R. 14032 (2000). As one of the conditions for approval of the merger, the FCC required Verizon to allow a CLEC in any one state to adopt any of Verizon‘s interconnection agreements previously approved by a different state commission. Id. app. D at 14310; see also
On July 24, 2000, Global notified Verizon that, pursuant to Paragraph 32, it wished to adopt the Rhode Island interconnection agreement for the parties’ dealings in Massachusetts. However, Verizon and Global disagreed as to whether § 5.7.2.3 could be adopted under Paragraph 32. On November 15, 2000, the parties agreed that, effective back to July 24, 2000, Global could adopt in Massachusetts all provisions of the Rhode Island agreement that were consistent with Paragraph 32, thus reserving Verizon‘s right to contest the adoption of § 5.7.2.3. During pendency of negotiations between the parties, Verizon did not pay Global reciprocal compensation for ISP-bound traffic.
On April 27, 2001, Global filed a complaint with the FCC, claiming it was entitled to adopt § 5.7.2.3 and seeking damages based on its interpretation of that section. On February 21, 2002, the FCC held that Verizon was required to offer the entire Rhode Island agreement, including § 5.7.2.3, to Global in Massachusetts. See Global NAPs, Inc. (Paragraph 32 Order), 17 F.C.C.R. 4031, 4039 (2002). Importantly, it also noted that un-
In the meantime, the FCC issued an order in response to the D.C. Circuit‘s remand of the Internet Traffic Order. See Local Competition Provisions in the Telecomms. Act of 1996 (Order on Remand), 16 F.C.C.R. 9151 (2001). In the Order on Remand, the FCC held once again that the “provisions of section 251(b)(5) do not extend to ISP-bound traffic” but rested its decision on different legal grounds. Id. at 9153. In addition, the FCC set up a new compensation scheme for ISP-bound traffic, which would become effective starting June 14, 2001. The FCC also made clear that it had exclusive regulatory authority to address the issue, so that state commissions no longer have the power to do the same. Id. at 9168-69, 9189. In its consideration of the Order on Remand, the D.C. Circuit held that the FCC could not validly base its actions on the new legal grounds. See WorldCom, Inc. v. FCC, 288 F.3d 429, 433-34 (D.C.Cir.2002). It did not vacate the FCC order, but found the agency needed to provide a different rationale. Id. at 434. The result is that the Order on Remand still remains in force. See Verizon Md. Inc. v. Global NAPs, Inc., 377 F.3d 355, 367 (4th Cir.2004).
Thus, the parties here agree that the Order on Remand “resolved” the question of reciprocal compensation for ISP traffic by setting up a new compensation scheme from June 14, 2001 going forward.5 But in Massachusetts there remains the question of reciprocal compensation for ISP-bound traffic between July 24, 2000 (when the language of the Rhode Island agreement went into effect in Massachusetts through the Massachusetts interconnection agreement) and June 14, 2001 (when the alternative compensation scheme in the Order on Remand went into effect). See Global NAPs II, 332 F.Supp.2d at 355.
In March 2002, Verizon submitted the Massachusetts interconnection agreement containing terms identical to those in the Rhode Island agreement for retrospective approval by the DTE. Before the DTE, Global argued that since it and Verizon had fully litigated the issue of whether the Internet Traffic Order was “resolution of this issue” under the identically worded Rhode Island agreement before the RIPUC, the DTE was collaterally estopped from relitigating the same. The DTE rejected Global‘s argument. The DTE approved the Massachusetts agreement in its entirety on June 24, 2002, but held that it was not bound by RIPUC‘s interpretation and reached its own interpretation. It noted that Paragraph 32 allowed the DTE to ensure that the agreement was “consistent with the laws and regulatory requirements of ... the state for which the request is made.” The DTE made note of its prior precedent—in particular, its May 1999 order finding that the Internet Traffic Order had held that ISP traffic was interstate traffic and thus not subject to reciprocal compensation under the TCA. The DTE concluded that based on this precedent it was required to find that the Internet Traffic Order was resolution of the issue under the meaning of § 5.7.2.3. Therefore, Global was not entitled to reciprocal compensation for ISP-bound traffic
Global filed suit challenging the DTE ruling.6 Global asserted a number of claims in its complaint, including, most importantly for our review, a claim that the DTE‘s decision not to be bound by the RIPUC decision on the issue violated the Full Faith and Credit Clause of the U.S. Constitution. See Global NAPs II, 332 F.Supp.2d at 359. The district court issued a lengthy and thoughtful decision on August 26, 2004, granting in part Global‘s motion for summary judgment. Id. at 375. The court found the RIPUC conclusion regarding the effect of the Internet Traffic Order on § 5.7.2.3 could not be relitigated before the DTE. Id. at 345. The court noted, however, that it was “possible that, in view of the state of the law in Rhode Island in 1999, the issue was not resolved, but, in view of the state of the law in Massachusetts, the issue was resolved.” Id. at 374. Thus, the court remanded the case to the DTE to determine “whether and when Massachusetts state legal or equitable principles that might serve as the foundation of any obligation to pay reciprocal compensation were so well-settled that the issue was resolved within the meaning of the parties’ agreement through a combination of the [Internet Traffic Order] and Massachusetts state law.” Id. at 345—46.
Verizon and the DTE each appealed, arguing that the district court incorrectly applied the Full Faith and Credit Clause. Global cross-appealed, claiming that the district court erred in remanding the case to the DTE rather than reversing the DTE decision outright.
We first address the question of appellate jurisdiction.
II.
While neither party challenges jurisdiction, “[w]e have an obligation to inquire sua sponte into our jurisdiction over the matter.” Doyle v. Huntress, Inc., 419 F.3d 3, 6 (1st Cir.2005) (citing Florio v. Olson, 129 F.3d 678, 680 (1st Cir.1997)).7 It is clear that “the federal courts have subject matter jurisdiction to review state agency determinations under the TCA for compliance with federal law, pursuant to
Verizon and the DTE argue that we nonetheless have jurisdiction over this appeal because it falls in the “category of
This court has recognized our ability to review orders remanding agency proceedings in situations similar to this one. See Colon, 877 F.2d at 151-52; United States v. Alcon Labs., 636 F.2d 876, 884-85 (1st Cir.1981); Lopez Lopez v. Sec‘y of Health, Educ. & Welfare, 512 F.2d 1155, 1156 (1st Cir.1975).
For example, in Colon, the district court had remanded a social security disability insurance benefits case to the Secretary of Health and Human Services, ordering him to reopen an earlier decision that had denied benefits. Colon, 877 F.2d at 151. The Secretary appealed that order. We found that we had appellate jurisdiction because otherwise “the Secretary [was] unlikely to obtain review of this important issue which is distinct from the underlying merits of the claim of disability.” Id. We noted that if the Secretary decided to grant benefits on remand, it would be “doubtful whether the Secretary could then appeal from his own decision to grant benefits.” Id. Even if the Secretary decided to deny benefits, “[a]rguing that the district court has no jurisdiction to order the Secretary to reopen a previous final decision after that decision, in fact, has been reopened is largely an academic exercise.” Id. at 152.
Similarly, the Eleventh Circuit, in considering a TCA case, held that it had jurisdiction to consider the appeal by the Florida Public Service Commission and BellSouth of a district court‘s order remanding the case to the state commission:
[T]here is a widely recognized distinction between remands where a district court simply orders the agency to proceed under a ‘certain legal standard,’ and in situations where a district court remands for further consideration of evidence. A remand order generally is found appealable in the former cases because the agency, forced to conform its decision to the district court‘s mandate, cannot appeal its own subsequent order.
MCI Telecomms. Corp. v. BellSouth Telecomms. Inc., 298 F.3d 1269, 1271 (11th Cir.2002) (internal citation omitted) (citing Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 329-30 (D.C.Cir.1989)). Other circuits considering an appeal under the TCA challenging a district court order that had remanded to a state commission seem to have assumed they had jurisdiction sub silentio. See, e.g., Ind. Bell Tel. Co. v. McCarty, 362 F.3d 378, 382, 395 (7th Cir.2004); Sw. Bell Tel. Co. v. Pub. Util. Comm‘n, 348 F.3d 482, 485, 487 (5th Cir.2003); US W. Commc‘ns, Inc. v. Jennings, 304 F.3d 950, 959 (9th Cir.2002); MCI Telecomm. Corp. v. Bell Atl.-Pa., 271 F.3d 491, 498, 521 (3d Cir.2001); AT & T Commc‘ns of the S. States, Inc. v. BellSouth Telecomms. Inc., 229 F.3d 457, 459 (4th Cir.2000).
For reasons similar to those given in Colon, we hold we have appellate jurisdiction over this matter. The circumstances of this case make clear that if review is denied at this stage, the DTE will be unable to “obtain review of this important issue distinct from the underlying merits of the claim of disability,” see Colon, 877 F.2d at 150, because the district court has “simply order[ed] the agency to proceed under a certain legal standard,” MCI Telecomms., 298 F.3d at 1271 (internal quota-
Since we have jurisdiction over DTE‘s appeal, we may also hear Verizon‘s appeal raising the same issue. See MCI Telecomms., 298 F.3d at 1271 (hearing appeal of both the state commission and a private party); NAACP v. U.S. Sugar Corp., 84 F.3d 1432, 1436 (D.C.Cir.1996) (“[W]hat matters for the purposes of our appellate jurisdiction is whether the district court‘s decision—and not any particular party challenging it—is properly before us....“).
Global‘s cross-appeal is a different matter. Global argues that the district court erred in ordering a remand to the DTE rather than reversing the DTE‘s decision outright. In a nutshell, Global‘s argument is that the DTE is constrained by its own administrative precedent from finding that reciprocal compensation cannot be paid. These arguments go to the heart of the underlying debate between Global and Verizon, and in making these arguments Global asks us to reach issues not decided by the district court. We decline to do so, and find that Global‘s cross-appeal is not properly before us.
III.
We turn now to the merits of the appeal. The district court held:
[A] state public utility commission‘s conclusions of state law relating to an interconnection agreement are entitled to preclusive effect in subsequent proceedings before other states’ public utility commissions to the same extent that they would receive preclusive effect in the first state‘s courts.
Global NAPs II, 332 F.Supp.2d at 366. It implicitly held that Rhode Island law would require the DTE to be bound by the RIPUC‘s decision. The district court based its decision on its view that principles of collateral estoppel, or “issue preclusion,” rooted in the Full Faith and Credit Clause required such a holding. See AVX Corp. v. Cabot Corp., 424 F.3d 28, 31 (1st Cir.2005) (describing the difference between issue and claim preclusion). We review this conclusion of federal law de novo.
The Full Faith and Credit Clause provides: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the Effect thereof.”
There is no claim that the Full Faith and Credit Clause compels full faith and credit be given to the unreviewed decisions of state administrative agencies. And, under Univ. of Tenn. v. Elliott, 478 U.S. 788, 796 (1986), the statute,
To set the scene, we describe briefly the requirements of federal issue preclusion law, but do not rest on that ground. We also assume arguendo that issue preclusion applies to an unreviewed administrative agency proceeding.8 See Bath Iron Works Corp. v. Dir., Office of Workers’ Comp., 125 F.3d 18, 21 (1st Cir.1997) (“[T]he subject [of preclusion in administrative contexts] is a complex one, with many variations; and it is perhaps well not to generalize too broadly.“).9
In Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973 (1st Cir.1995) this court set forth the following “federal preclusion principles“: “(1) both the ... proceedings involved the same issue of law or fact; (2) the parties actually litigated the issue in the [prior] proceeding[ ]; (3) the [first] court actually resolved the issue in a final and binding judgment ...; and (4) its resolution of that issue of law or fact was essential to its judgment (i.e., necessary to its holding).” Id. at 978 (emphases in original); see also In re Bankvest Capital Corp., 375 F.3d 51, 70 (1st Cir.2004). We have serious doubts about whether this test could be met on the facts presented here, because it is not at all clear that the RIPUC and the DTE decided “the same issue of law or fact.”10 The RIPUC here
It is against the backdrop of its May 1999 order that the DTE decided the present question of whether the FCC‘s Internet Traffic Order “resolved” the issue of reciprocal compensation for ISP-bound traffic. No similar “well-established position” guided the RIPUC in making its decision. It is difficult, then, to see for preclusion purposes why the DTE and RIPUC decided the “same issue of law or fact.” See 18C C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4425, at 659 (2d ed. 2002) (“Preclusion ... may be defeated by showing ... that there has been a substantial change in the legal climate suggesting a new understanding of the governing legal rules that may require a different application.“).12
Nonetheless, we do not rest on this ground because there is of necessity a prior analysis. As the Supreme Court made clear in Elliott, we must first answer the preliminary question of whether application of a federal common law rule of issue preclusion would be consistent with Congress‘s intent in enacting the TCA. Elliott, 478 U.S. at 796; see also Solimino, 501 U.S. at 110-11. We find that, on the facts of this case, it would not.
Elliott controls the structure of analysis. In Elliott, a discharged employee of the university had filed a complaint with a state administrative agency, claiming his discharge was racially motivated. Elliott, 478 U.S. at 790. When his claims were denied by the state agency, rather than seeking review in the state courts, the employee went to federal district court with claims under Title VII of the Civil Rights Act of 1964, the Constitution, and the Reconstruction-era civil rights statutes. Id. The district court granted summary judgment for the university on the ground that the state administrative decision was entitled to preclusive effect. Id. at 792. The Supreme Court noted first that the full faith and credit statute,
The district court distinguished Elliott and Solimino because “[a]s they involved decisions to be made by the federal government, rather than a state, they were governed by the common law of issue preclusion rather than the Full Faith and Credit Clause.” Global NAPs II, 332 F.Supp.2d at 366. However, there is nothing in those cases to suggest that their holdings on the preclusive reach of judicially unreviewed decisions of state agencies were limited to situations where the subsequent case was in federal court.
In order to find that issue preclusion applies, the district court held that “there is nothing explicit or implicit in the [TCA] that indicates that Congress intended to depart from the traditional rules of preclusion.” Id. We disagree. Our examination of the TCA leads us to conclude that to apply principles of issue preclusion, at least in the situation presented here, would contravene the intent of Congress.
In a sense, issue preclusion rules are about allocation of authority to decide a question. General application of the federal common law of issue preclusion would threaten two different allocations of power under the TCA: the allocation among the commissions of each state as to the effectuation of their state‘s policies and the allocation of power between the FCC and the states.
The model under the TCA is to divide authority among the FCC and the state commissions in an unusual regime of “cooperative federalism,” see P.R. Tel. Co. v. Telecomms. Regulatory Bd., 189 F.3d 1, 8 (1st Cir.1999), with the intended effect of leaving state commissions free, where warranted, to reflect the policy choices made by their states. See P. Huber et al., Federal Telecommunications Law §§ 3.3.3-3.3.4 (2d ed.1999). Rather than placing the entire scope of regulatory authority in the federal government, “Congress enlisted the aid of state public utility commissions to ensure that local competition was implemented fairly and with due regard to the local conditions and the particular historical circumstances of local regulation under the prior regime.” Id. § 3.3.4, at 227. We see little indication that Congress intended its explicit allocation of authority between state commissions to be generally displaced by common law rules that themselves allocate authority.
The goal of preserving a role for the state regulatory commissions is reflected in a number of provisions in the TCA. Congress expressly left with the states the power to enforce “any regulation, order, or policy of a State commission that ... establishes access and interconnection obligations of local exchange carriers; ... is consistent with the requirements of this section; and ... does not substantially prevent implementation of the requirements of this section and the purposes of
The role played by state commissions is especially important with respect to interconnection agreements. State commissions are given the authority to resolve though arbitration or mediation any open issues in ongoing negotiations for interconnection agreements.
In addition to threatening the allocation of authority under the TCA among the states as to protection of their own state interests, general implementation of default common law issue preclusion rules could threaten the authority allocated to the FCC. Congress gave the federal government an extensive oversight role. Under the TCA, the FCC has authority to preempt state jurisdiction over regulation of intrastate communications in a number of specific situations. For example, if a state commission fails to carry out the duties required of it with respect to its consideration of a particular interconnection agreement, the FCC is given authority to preempt the state commission‘s jurisdiction and assume direct responsibility for that agreement.
Indeed, the FCC has issued its own orders and regulations that have made clear that, at times, individual state commissions are to decide matters and that, at other times, one state commission‘s determination is owed some deference. The FCC, in exercising the power granted to it under the TCA, has indicated that the DTE is the decision-making authority as to the issue here. In Paragraph 32, the FCC noted that the adoption of an interconnection agreement from another state was subject to the proviso that the agreement had to be “consistent with the laws and regulatory requirements of ... the state for which the request is made.” Merger Order, 15 F.C.C.R. 14032 app. D at 14310.
As a result of these orders, the FCC has essentially done three things. It has said that nothing in the TCA itself requires as a matter of federal law that Verizon pay the reciprocal compensation charges. It has also said that each state commission may make its own determination on the issue under state law. And although the FCC required Verizon to enter an agreement with Global using the same language as the Rhode Island agreement, it also recognized that there was a dispute about that language and that the relevant state commission (the DTE) should decide the issue.
For a court to step in and shift the state-by-state decision-making authority from the Massachusetts DTE to the RIPUC on this issue would upset the allocations of authority made out under the TCA. A judicially imposed rule of preclusion here would also set up an opportunity for regulatory arbitrage contrary to the purposes of the TCA. It is common in the telecommunications world for ILECs and CLECs to negotiate multiple interconnection agreements across multiple states simultaneously, and these agreements often contain identical terms. Given this fact, a rule granting preclusive effect to the decision of the first state commission on a particular issue creates the risk of perverse incentives. Carriers looking to lock in a friendly interpretation will race to the state commission with the most amenable views, and perhaps leverage that decision to their advantage in other states. The state commissions themselves would be en-
couraged to decide an issue as quickly as possible, to preserve their independence and to avoid being bound by another state agency‘s interpretations of contractual terms. These results cut directly against Congress‘s desire, as evinced by the text and structure of the TCA, “to ensure that local competition [be] implemented fairly and with due regard to the local conditions and the particular historical circumstances of local regulation under the prior regime.” P. Huber et al., supra, § 3.3.4, at 227.
To be sure, in some other circumstances, deference by one state commission to another state‘s conclusions may be appropriate. For example, the FCC has chosen to give presumptive effect to certain findings regarding technical feasibility by one state commission. See
In part because of the complications of the TCA‘s scheme of cooperative federalism, we do not think it wise to decide this case in the broad terms urged by the parties. We do not address whether the
IV.
We reverse the district court‘s judgment and vacate the order remanding the matter to the DTE; we remand to the district court for further proceedings consistent with this opinion. Costs are awarded to Verizon and the DTE.