442 Mass. 103 | Mass. | 2004
On December 20, 2002, the Department of Telecommunications and Energy (department), pursuant to a remand order of the Federal District Court, see Global NAPs, Inc. v. New England Tel. & Tel. Co., 226 F. Supp. 2d 279, 281 (D. Mass. 2002) (Global NAPs),
Background. Because the context of this case is complex, we begin with an overview of the relevant statutory and regulatory provisions that govern this proceeding. Until the 1990’s, the provision of local telephone service was not competitive. Individual telephone companies, sometimes called “incumbent local exchange carriers” (ELECs), maintained monopolies over defined geographic areas. See Global NAPs, supra at 285, and cases cited. In an effort to dispense with these monopolies and introduce competition into the market, Congress passed the
When two local telephone service networks are interconnected, the issue of costs must be resolved. For example, when a Verizon customer initiates a call to an MCI customer in the same calling area, both Verizon and MCI bear certain costs associated with originating and “terminating” (or completing) the call. However, only the originator, the Verizon customer, pays for the call; the MCI customer does not pay a fee to receive the call, and thus MCI is not compensated for those costs. See Illinois Bell Tel. Co. v. Worldcom Techs., Inc., 179 F.3d 566, 568 (7th Cir. 1999), cert. denied, 535 U.S. 1107 (2002). To correct this imbalance, the Act mandated that interconnection agreements must provide for “[Reciprocal compensation” for local
In the years since Congress passed the Act, however, there has been a dramatic rise in Internet usage and concomitant increase of telephone calls to Internet service providers (ISPs). See Pacific Bell v. Pac-West Telecomm, Inc., supra at 1118. Calls to ISPs (ISP-bound traffic) are primarily one way (ISP server computers tend not to call back), and on average are of greater duration than traditional telephone phone calls. See id.; New England Tel. & Tel. Co. v. Conversent Communications of R.I., L.L.C., supra at 85. As a result, a company with many customers that are ISPs is likely to receive more compensation from carriers with few or no customers that are ISPs. It has been suggested by other courts that some CLECs have targeted ISPs as customers in order to take advantage of this phenomenon. Id.
Because reciprocal compensation is available only for local calls, whether ISP-bound traffic is deemed “local” is an important question. If a customer’s call to a local ISP is considered as terminating at the ISP server, then it is local and subject to reciprocal compensation. Matter of Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, 14 F.C.C.R. 3689, 3694 (1999) (Internet Traffic Order). However, if the call is considered as terminating somewhere on the Internet, for example, at a website that the customer visits after calling her ISP, then the call is not local and not subject to reciprocal compensation. Id. The question of
There is no disagreement about the essential facts. Before the passage of the Act, Verizon was the ILEC for eastern and central Massachusetts, and enjoyed a monopoly over the provision of local telephone service in that region. After passage of the Act, MCI entered the market as a CLEC. On June 26, 1996, MCI and Verizon signed an interconnection agreement (MCI agreement), providing for the interconnection of their respective local networks.
Section 5.81 of the MCI agreement provides that “reciprocal compensation only applies to the transport and termination of [ljocal [tjraffic,” which a customer originates on one network for termination on the other party’s network. Section 5.82 provides that “[tjhe [pjarties shall compensate each other for transport and termination of [ljocal [tjraffic . . . .” “Local [tjraffic” is defined by § 1.38 as “a call which is originated and terminated within a given [local access and transport areaj, in the Commonwealth of Massachusetts, as defined in DPU Tariff 10, Section 5.” Section 1.53 provides that “ ‘[rjeciprocal [cjompensation’ is [ajs [djescribed in the Act, and refers to the payment arrangements that recover costs incurred for the transport and termination of [tjelecommunications originating on one [pjarty’s network and terminating on the other [pjarty’s network.” “As [djescribed in the Act” is defined “as described in or required by the Act and as from time to time interpreted in the duly authorized rules and regulations of the FCC or the [djepartment.” § 1.6. There is no provision in the MCI agreement that explicitly addresses whether ISP-bound traffic is “local” or subject to reciprocal compensation.
After the agreement was approved by the department, Verizon and MCI paid each other reciprocal compensation for calls originating on one network and terminating on the other, including ISP-bound traffic. In April of 1997, Verizon unilaterally discontinued reciprocal compensation payments to MCI for ISP-bound traffic, on the basis that these calls were interstate and not local. At approximately the same time, Verizon entered into negotiations with Global, another CLEC. Global and Verizon were unable to come to terms on whether ISP-bound traffic
On June 26, 1997, MCI filed a petition with the department alleging that Verizon had breached the MCI agreement by refusing to pay reciprocal compensation for ISP-bound traffic. Global and other CLECs intervened in support of MCI. After a hearing, the department concluded that ISP-bound traffic was “local,” and therefore subject to reciprocal compensation. D.T.E. 97-116 at 13 (1998) (1998 department order). The reasoning behind the 1998 order was twofold. First, the department concluded that ISP-bound traffic came under the definition of “[ljocal [traffic” in the MCI agreement, because it was identical to traditional local calling in many important respects (including billing and dialing), and because the premises of the originating and receiving callers were in the same local region. Id. at 11. Second, the department looked to rulings of the Federal Communications Commission (FCC), and found the FCC had implicitly accepted the “two-call” theory, under which ISP-bound traffic is comprised of two separate services: (1) a local call to an ISP server, and (2) a subsequent (possibly interstate) communication from the ISP to the Internet. Id. at 11-12, citing In the Matter of Federal-State Joint Board on Universal Service, Report Order, FCC Docket No. 96-45 at 1789 (May 8, 1997). The department acknowledged, however, that “the FCC may make a determination . . . that could require us to modify our findings in this Order.” Id. at 5 n.11.
In 1999, the FCC issued the Internet Traffic Order, supra, a declaratory ruling that definitively rejected the two-call theory
On the heels of the Internet Traffic Order, Verizon moved for the department to modify the 1998 department order. The department allowed Verizon’s motion, reasoning that because its 1998 department order was based exclusively on a mistake of law, i.e., the two-call theory, it was now “as a practical matter — a nullity.” D.T.E. 97-116-C at 24 (1999) (1999 department order). The department vacated its 1998 order, thereby freeing Verizon from paying reciprocal compensation for ISP-bound traffic. Id. at 40-41.
That could have ended the matter, but in March, 2000, the United States Court of Appeals for the District of Columbia Circuit vacated and remanded the Internet Traffic Order for want of reasoned decision-making. Bell Atl. Tel. Cos. v. FCC, 206 F.3d 1, 3 (D.C. Cir. 2000). Shortly thereafter, Global, joined by MCI and other CLECs, moved for the department to vacate the 1999 department order and reinstate the original 1998
In 2001, the FCC issued another ruling, once again concluding that ISP-bound traffic was not subject to reciprocal compensation under the Act, but basing that conclusion on a different analysis. Matter of Implementation of the Local Competition Provisions in Telecommunications Act of 1996, 16 F.C.C.R. 9151, 9154 (2001) (Order on Remand). The FCC adopted the theory that ISP-bound traffic was “information access” traffic under 47 U.S.C. § 251 (g), and thus exempt from the reciprocal compensation provision of 47 U.S.C. § 251 (b)(5). Id.
Meanwhile, MCI and Global brought their complaint to the Federal District Court, pursuant to 47 U.S.C. § 252 (e)(6). See note 3, supra. MCI and Global requested a declaration that the orders subsequent to the original 1998 department order were in violation of Federal law, and that the original 1998 department
Pursuant to the remand instructions, the department conducted a “contract analysis” of the agreement. D.T.E. 97-116-G at 26 (2002). The department concluded that the plain language of the agreement, which tied the definition of “reciprocal compensation” to the construction of the Act “as from time to time interpreted” by the FCC, manifested an intent of the parties to the agreement to track the FCC’s interpretation of the scope of 47 U.S.C. § 251 (b)(5), the Act’s reciprocal compensation provision. Id. at 28. Therefore, what the FCC has determined is compensable under the act is what is compensable under the agreement. Id. Because only local traffic is compensable under the agreement, and the FCC has consistently ruled since 1999 that ISP-bound traffic is not local, ISP-bound traffic did not fit within the agreement’s definition of local, and was not subject to reciprocal compensation. Id. at 28-29. It is from this decision that Global now appeals, claiming several errors of law.
Standard of review. The standard of review for petitions under G. L. c. 25, § 5, is well settled: “[A] petition that raises no constitutional questions requires us to review the department’s findings to determine only whether there is an error of law. . . .
Moreover, where a case involves interpretation of a complex statutory and regulatory framework, “[w]e give great deference to the department’s expertise and experience in areas where the Legislature has delegated to it decision making authority.” Stow Mun. Elec. Dep’t v. Department of Pub. Utils., 426 Mass. 341, 344 (1997), quoting Wolf v. Department of Pub. Utils., 407 Mass. 363, 367 (1990). Where the FCC has expressly delegated authority to the department, we have accorded deference to the department’s interpretation of that delegation. MCI Telecom. Corp. v. Department of Telecom. & Energy, 435 Mass. 144, 151 (2001). This case presents a situation that is not merely the usual occasion for deference to a State agency. Here, Congress has explicitly delegated the authority to interpret and enforce interconnection agreements to the department. See 47 U.S.C. § 252 (e).
Discussion. Global argues that the department erred in its interpretation of the agreement. Global contends that § 5.8.2 of the agreement, which requires that the parties compensate each other for the transport and termination of “[ljocal [tjraffic,” makes no reference to reciprocal compensation. It further argues that the agreement’s definition of “[ljocal [tjraffic” is express, so that a complete understanding of the term does not require the department to look to Federal law. Therefore, the argument goes, the definition of “[ljocal [tjraffic,” and the requirement that it be compensable, is somehow insulated from the definítian of “reciprocal compensation,” which expressly tracks Federal law. We disagree.
To ascertain the intent of contracting parties, the court considers the words used by the parties, the agreement taken as a whole and the surrounding facts and circumstances. Mas
Against this backdrop, the parties to the MCI agreement explicitly tied the definition of “reciprocal compensation” to the FCC’s interpretation of the Act, i.e., the FCC’s interpretation of the scope of 47 U.S.C. § 251 (b)(5), and expressly contemplated that interpretation changing “from time to time.” § 1.6. Section 5.8.1, in turn, limited reciprocal compensation to local traffic. Section 5.8.2 does not specifically mention “reciprocal compensation,” but addresses compensation for the termination of local traffic, and resides in the section of the agreement addressing reciprocal compensation.
Global further argues that even if the agreement manifests an intention to track Federal law and FCC interpretations, the state of Federal law is still “an open question,” and therefore the department erred in its interpretation of that law. Global’s frustration at the shifting FCC rationale for its rulings is understandable, but we conclude that the department did not err. Prior to the Internet Traffic Order, the FCC had treated ISP-bound traffic as local and not interstate, at least for some purposes. See Internet Traffic Order, supra at 3703. However, since that ruling, the FCC has consistently concluded that ISP-bound traffic is not local and not subject to reciprocal compensation. See Order on Remand, supra at 9154. Neither of the remand orders of the Federal court expressly rejected this underlying premise. See Worldcom, Inc. v. FCC, 288 F.3d 429, 434 (D.C. Cir. 2002); Bell Atl. Tel. Cos. v. FCC, 206 F.3d 1, 9 (D.C. Cir. 2000). The FCC’s Order on Remand was remanded but not vacated, and is still in effect. Worldcom, Inc. v. FCC, supra. See note 12, supra. Therefore, the department was justified in concluding that under Federal law, ISP-bound traffic is not within the scope of the reciprocal compensation statute.
Global also contends that the department had no grounds to reconsider its original 1998 order, once the Massachusetts Federal District Court declared that said order complied with Federal law. See Global NAPs, supra at 280. Global further maintains that the “extraordinary circumstances” necessary for reconsideration were not present in this case, and further that
The department correctly noted that the Federal District Court did not merely remand the matter for the “ministerial” task of reinstating the 1998 order. D.T.E. 97-116-G at 23 (2002). The court remanded the matter in order for the department to determine “whether the interconnection agreements give rise to reciprocal compensation as a matter of Massachusetts contract law,” and explicitly stated that the department was “not required to reach the same result it reached in the 1998 [department order].” Global NAPs, supra at 294. It did not, nor could it, order that the 1998 department order be reinstated, but merely pointed out that in 1998 the department had conducted the proper analysis under Federal law. Id. at 295 & nn.20, 21.
As for reconsideration of the 1998 department order, the department recognizes “extraordinary circumstances” necessary to modify a prior decision “when a motion for reconsideration brings to light previously unknown or undisclosed facts which, if known, would have had a significant impact upon the decision already rendered,” and “when argument contained within a motion for reconsideration demonstrates that the Department’s treatment of an issue was the result of mistake or inadvertence.” MCI WorldCom, Inc., D.T.E. 97-116-D at 17-18 (2000), and cases cited.
Global is correct in arguing that it has a right “to expect and
Finally, Global argues that the decision in the 2002 order was arbitrary and capricious because the department failed to consider “other legal or equitable considerations.” D.T.E 97-116-G at 26 (2002). Specifically, Global contends that it has a cause of action sounding in quantum meruit, that is, for the recovery of the fair value of the services it is providing to Verizon by carrying ISP-bound traffic originated by Verizon customers and continuing on to Global’s network.
The department’s decision was not arbitrary or capricious. In its 2002 order, the department contemplated the possibility of other legal or equitable considerations. Id. at 27 n.18. It concluded that, because the plain language of the agreement provided for the treatment of ISP-bound traffic, further discussion of these considerations was not necessary. Id. The department did not err. Verizon argues that Global failed to raised quantum meruit as a theory of recovery before the department. See Lincoln v. Personnel Adm’r of the Dep’t of Personnel Admin., 432 Mass. 208, 213 n.6 (2000) (argument not raised with Civil Service Commission is waived). But even had the issue been raised, the provisions of the express contract address the disputed issue, and “[Recovery in quantum meruit presupposes that no valid contract covers the subject matter of a dispute.” Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 250 (1993).
So ordered.
The case was filed in the United States District Court for the District of Massachusetts pursuant to 47 U.S.C. § 252(e)(6) (2000) which provides, in relevant part, that “[i]n any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court. . . .”
These parties are successors in interest to MFS Intelenet of Massachusetts, Inc., and the New England Telephone and Telegraph Company, respectively. For ease of reference, we will use only the parties’ current names throughout.
TitIe 47 U.S.C. § 251 (a)(1) (2000) provides that “[e]ach telecommunications carrier has the duty ... to interconnect directly or indirectly with the facilities and equipment of other telecommunications carriers . . . .”
Title 47 U.S.C. § 251 (b)(5)(2000) establishes a duty on the part of local telephone service providers to “establish reciprocal compensation arrangements for the transport and termination of telecommunications.”
For instance, the MCI agreement at issue in this case provides for MCI and Verizon to pay each other $.008 a minute for local calls between their respective networks for the first six months of the agreement.
The Global agreement is identical to the MCI agreement in all aspects relevant to this case.
GlobaTs motion also sought vacatur of D.T.E. 97-116-D (2000), which had affirmed the 1999 department order.
The FCC established a transitional cost-recovery mechanism for interconnection agreements entered into after the effective date of its order, see Matter of Implementation of the Local Competition Provisions in the Telecommunications Act of 1996, 16 F.C.C.R. 9151, 9155-9156 (2001) (Order on Remand), but stated that this new system would not affect or preempt State commission decisions regarding reciprocal compensation for periods prior to that date. Id. at 9189.
The department requested comments on the effect of the Order on Remand. See D.T.E. 97-116-F at 5 (2001). Once again, the department rejected the CLECs’ request to reinstate the original 1998 department order. Id. at 11.
The FCC proceedings are still pending on remand and the Order on Remand remains in effect. See Pacific Bell v. Pac-West Telecomm, Inc., 325 F.3d 1114, 1122-1123 (9th Cir. 2002).
MCI also requested injunctive relief, which was not granted. Global NAPs, Inc. v. New England Tel. & Tel. Co., 226 F. Supp. 2d 279, 280, 282 (D. Mass. 2002).
It has been pointed out that the department used the heading of § 5.8, “Reciprocal Compensation Arrangements —• Section 251(b)(5)” to tie §§ 5.8.1 and 5.8.2 to the Federal statute, despite § 2.0 of the agreement, which states that section headings are not intended to “be a part of or to affect the meaning of this Agreement.” We do not view this error as fatal to the department’s reasoning, and at any rate, a prohibition against considering section headings does not require that we ignore the context and placement of individual provisions within the over-all agreement. Section 2.0 certainly does not require this court to conclude that §§ 5.8.1 and 5.8.2 have nothing to do with 47 U.S.C. § 251 (b)(5).
Global also argues that the reference to tariffs in the agreement’s definition of “local traffic” manifests an intent to pay reciprocal compensation for any call that is billed as “local.” We read this reference as a geographical description only. To argue that the definition of “[l]ocal [t]raffic” is tied exclusively to how Verizon bills these calls pursuant to regulatory schemes ignores the context of the agreement and the fact that to be “local” by the terms of the agreement, a call must “originate!]” and “terminate!]” within a defined geographical area.
Global argues that the 2002 department order does not explicitly address any ground for reconsideration. However, to the extent that it is a reconsideration of the 1998 department order, it implicitly incorporates the “mistake or inadvertence” rationale of its earlier reconsideration, the 1999 department order.
RNK, Inc., in an amicus brief argues that the 1998 department order satisfies the requirements of res judicata and should therefore be given preclusive effect. Global did not raise this argument, and we ordinarily do not consider nonjurisdictional issues raised only by an amicus. Massachusetts Correction Officers Federated Union v. Labor Relations Comm’n, 417 Mass. 7, 9 (1994).