Michigan Bell Telephone Co. v. Covad Communications Co.

Kеisler, 1053, 1057 Morgan v. under 8 U.S.C. holding of removal Cir.2007). (6th (iii). BIA 1231(b)(3)(B) Because the did not corroboration, I lack of do not discuss the IV. that the issue is before us. feel above, set forth For all of the reasons Urbina-Mejia’s petition. DENY

we

SILER, concurring. Judge, Circuit majority judgment

I concur I separately, I because

opinion, but write that we need to discuss certain

do not feel particular, I con- aspects of the case. BELL TELEPHONE MICHIGAN II., L, cur with Parts and III.C. Under COMPANY, Plaintiff- III.C., majority opinion agrees with Appellee, correctly BIA that the IJ found v. statutorily ineligible for Urbina-Mejia was withholding of removal because he admit- COM COVAD COMMUNICATIONS nonpolitical ted that he committed serious PANY, al., Intervenors De et period years. of three As crimes over fendants-Appellants, holds, withholding of removal majority Telecommunications McLeodUsa Attorney is not available General Services, Inc., al., et finds that the alien committed “serious Intervenors, in arriving crime” before nonpolitical U.S.C. United States. Lark, Commissioner, J. Peter (b)(3)(B)(iii). Thus, if affirm § 1231 we on al., et Defendants. issue, it does not matter if the alien particular group was a member of social Michigan Telephone Company, Bell subject persecution on and had been Plaintiff-Appellee, Therefore, adopt I ground. do not v. III.A., majority’s conclusions Part necessary it is not in this ease. I because al., Chappelle, Laura et Defendants- day question would leave to another Appellants, person belonged whether a similar particular group. Company, social Covad Communications al., et Intervenors. III.B.,

Similarly, adopt I do not Part concеrning whether there was sufficient 07-2469, Nos. 07-2473. corroborating testimony evidence to the Appeals, United States Court BIA Urbina-Mejia the IJ. The did before Sixth Circuit. adopt or reach the IJ’s determination Mejia failed to corroborate his testi- Argued: Dec. 2008. mony. Although this issue of insufficient Decided and Filed: Feb. by Urbina-Mejia corroboration was raised brief, the BIA the IJ’s his reviews separate opin- and issues decision

ion, here, as found we review the BIA final

opinion agency as the determination.

ARGUED: Bill Magness, Casey, Gentz L.L.P., Austin, Texas, & Magness, Michael Nickerson, A. Office of the Michigan At- torney General, Lansing, Michigan, for Ap- pellants. III, William Champion Julius PLLC, Wright Arbor, Dickinson Ann Michigan, Appellee. for H. Angstr- Scott eich, Huber, Hansen, Kellogg, Todd, Ev- PLLC, Figel, D.C., ans & Washington, for Amici Curiae. ON BRIEF: Bill Magness, Casey, L.L.P., Gentz & Magness, Austin, Texas, Steven D. Hughey, Office of the Michigan Attorney General, Lansing, Ashton, Fraser, Michigan, Michael S. Tre- bilcock, P.C., Dunlap, Davis & Lansing, Michigan, D. Hughey, Steven Office of the Michigan General, Attorney Lansing, Michigan, for Appellants. William Julius III, Champion Jeffery Stuckey, V. Dickin- PLLC, Arbor, Wright son Ann Michigan, Appellee. Angstreich, Scott H. Kel- Huber, Todd, logg, Hansen, Evans & Fi- PLLC, gel, D.C., Washington, Laurel R. Bergold, Ellison, P. Michele Richard K. Welch, Federal Communications Commis- sion, D.C., Washington, for Amici Curiae. BATCHELDER, Before: Judge; Chief SUTTON, GILMAN and Judges. Circuit BATCHELDER, C.J., delivered the court, opinion GILMAN, J., in which joined. SUTTON, 387-92), (pp. J. separate delivered a dissenting opinion. public- agreements to state nection OPINION utility commissions. Id. BATCHELDER, M. Chief ALICE case, the is Mich- present In the ILEC Judge. Bell; are Covad Com- igan CLECs and commission telephone-utility A state America, Inc., munications, Talk XO carriers competitive exchange local several Communications, Telecom- McLeod USA judgment in which the district a appeal Metrocom; munications, and TDS order re- vacated the commission’s court utility commission is the Michi- the state car- exchange incumbent local quiring (MPSC), Public Service Commission gan facilities” to certain “entrance rier which the individual commissioners Finding appel- prices. at wholesale Lark, Chappelle, Peter Laura were J. we AF- arguments unpersuasive, lants’ This case con- and Monica Martinez. FIRM. regulation of “entrance facili- cerns

ties,” facility type a transmission with an connects CLEC network ILEC I. But, clear, just to be “en- network. Congress enacted the Telecommunica fancy facility” really just trance is name 1996, seq., 47 et Act of U.S.C. 152 tions transport or wire for a cable used to calls service, “that which was to mandate local switch, from a switch to an ILEC CLEC operated monopoly over previously (if can very and this wire be short states, opened to by the several be seen together), two switches close or can v. Bell competition.” Corp. MCI Telecom. very long, for blocks stretching be or (3d Cir.2001). Atl., 491, Con 271 F.3d 497 (if apart), miles are far even switches required the incumbent local ex gress depending on the relative locations (ILECs) change cooperate carriers to two switches. exchange local carriers directed, promul Congress As the FCC (CLECs) allow the enter CLECs gаted regulations regarding interconnec market, by connecting equip either their tion, seq., see 47 C.F.R. et and then 51.1 existing ment to the ILEC’s network or deciding set about which of the ILEC’s ele purchasing leasing existing network “unbundled”; elements network must be ments and services. Id. The ILECs is, which of network the ILEC’s ele CLECs, through negotiation or arbitra must be or lease ments offered for sale

tion, agree into enter “interconnection regulated prices the CLECs or rates.1 ments,” terms, rates, out which set 1996, In its August the FCC issued Local Congress conditions. Id. directed Order, 15499, Red. Competition 11 FCC 1996), Federal Communications Commission 8, (Aug. 1996 WL 452885 which it (FCC) regula promulgate implementing apply “impairment purported the Act’s tions, every- gave impairment the intercon- oversight finding but test”2 and— regulat particular FCC created a set of a network element an unbundled basis’ 'on described, element, Long ed rates called "Total Element Run In to lease the however to a Thus, (TELRIC) specific requesting price cremental Cost” rates. “un carrier at a stated element.”); (USTA “regulated,” see USTAv. FCC means which means also bundled” 554, (dis Commc'ns, II), (D.C.Cir.2004) 561-62 “at rates.” TELRIC See Verizon 531, FCC, 467, cussing “unbundling requirements”). v. 535 122 S.Ct. Inc. U.S. 1646, (2002) (citing L.Ed.2d AT & T 152 701 “impairment 2. The test” states: 394, Bd., 366, Corp. v. Iowa Utils. 525 U.S. 721, (1999)) determining S.Ct. 142 L.Ed.2d 835 network elements 119 what ("Bundling pricing. about To be made [on lease should available unbundled required the ILECs to unbundle things “entrance facilities” from where— —removed description all of their interoffice-transmission facili- of the ILEC network and (which facilities). impairment ties included entrance concluded that an test ‍‌‌​‌​‌‌‌‌‌‌‌​‌​‌​​‌​​​​‌​​​‌​​​‌‌​‌​‌​‌‌‌​‌​​‌‌‌‍was not Supreme necessary But the Court vacated that or- even to hold that entrance facili der, finding analysis impair- the FCC’s ties need not be unbundled. See Triennial over-broad, (TRO), unjustifiably 16978, ment and re- Review Order 18 FCC Red. try again. manded the issue to the FCC to WL 366 n. 1116 (Sept. 2003) (“Our Bd., Corp. AT & T v. Iowa Utils. determination effectively here U.S. S.Ct. L.Ed.2d 835 eliminates ‘entrance facilities’ as UNEs (1999). and, [unbundled network elements] there fore, moots the pending [FCC’s notice of Meanwhile, Michigan begun Bell had to proposed making] rule insofar as it propos provide for the CLECs to connect to its limitations on obtaining es entrance facili doing, Michigan network. In so Bell add- UNEs.”). ties as But the reviewing court (i.e., ed “entrance facilities” cables yet vacated the order again, finding that wires) with which the CLECs could con- the FCC’s exclusion of entrance facilities nect, in Michigan order to access Bell’s impairment from the analysis improp was Acting pursuant network. to the FCC’s er directing and that the FCC must con directives, initial Michigan Bell offered its an impairment analysis duct for entrance “entrance regu- facilities” the CLECs at FCC, facilities. See USTA v. 359 F.3d 554 lated rates. (D.C.Cir.2004) (“USTA II”). FCC, on remand from the Iowa decision, Consequently, the again required Utilities Board FCC issued fourth order, the Triennial the ILECs to unbundle all of their Review Remand inter Or (TRRO), 2533, der 20 office transmission facilities FCC Rcd. (including en 2005 WL (Feb. facilities), 4, 2005), trance again once under an which reestab lished that entrance “impairment pаrt test” which it im facilities are a of found network, pairment everywhere. the ILEC but See UNE found unbun Remand Order, 3696, dled access not necessary was FCC Red. 1999 WL because the (Nov. 1999). impaired by CLECs were not paying But the com review petitive rates for ing well, court vacated that the use of entrance facilit order as find ies.3 At ing the the conclusion of analysis impairment finding, FCC’s un however, over-broad, the FCC justifiably following included the remanded the paragraph: try issue to the FCC to a third time. FCC, (D.C.Cir.

See USTA v. 290 F.3d 415 140. We note in addition that our find 2002) (“USTA I”). ing non-impairment respect with attempt, its third on remand from the entrance facilities does not alter Circuit, D.C. among other right LECs to obtain in FCC — basis, i.e., rates], required CLECs at TELRIC to build entrance facilities under consider, minimum, TRRO, [FCC] shall at a circumstances.” 20 FCC Red. provide whether ... failure [ILEC’s] ¶ (citing 2005 WL 137 n. 383 USTAv. access to such network elements would im- FCC, (D.C.Cir.2004) ("If pair ability of the [CLEC] (as appears) [entrance facilities] exist exclu services it seeks to offer. CLECs, sively for the convenience of the 251(d)(2)(B). 47 U.S.C. seems anomalous that CLECs do them them....”)). selves fact, expressed 3. "In the [USTA II] court skepticism that incumbent LECs should be trance facilities at TELRIC rates. The to sec pursuant

terconnection “September refer to this as the parties for the transmission tion Order.” exchange routing telephone service Thus, access service. exchange to the Michigan appealed Bell distinct will have access to competitive LECs court, agreed Michigan Bell which with fаcilities[4]:i at

these [interconnection] interpre- disagreed with the MPSC’s rates to the extent cost-based TRRO) and reversed the tation of to interconnect with require them Order, explaining: September incumbent LEC’s network. Michigan agrees [] Th[is][c]ourt TRRO, 2533, 2005 WL 20 FCC Red. September and concludes [Bell] ¶ (footnotes omitted). 289015, 140 Order[,] issue[,] to this pertains which comply with the rules that were does not Bell previously, Michigan As mentioned adopted by pursuant the FCC Section provided had entrance facilities some interpret 251. It is not reasonable to time, charging and had been the CLECs comment, the one explanatory such as (TELRIC) of those regulated rates for use in 140 in a manner found of the But, light entrance facilities. plain meaning of that undermines the TRRO, Michigan Bell decided that it would meaning the rule. The of 140 must be (i.e., competitive) charge higher henceforth rule, interpreted light of the FCC pro- rates for the entrance facilities it was provides that entrance facilities which Thus, viding.5 Michigan Bell notified the provided by need not be incumbent car- “in- changing that it would be CLECs competing carriers on an unbun- riers to agreements” to reflect this terconnection conveys dled basis. The TRRO pricing new scheme. finding by the FCC that entrance facili- CLECs, pleased The none too with this A competitively. ties should be offered increase, impending price responded ruling by re- of the the MPSC review MPSC, arguing that complaining to the September veals that the Order does nоt (regardless paragraphs of the other directive, and, comply with this accord- TRRO) paragraph 140 dictates that ingly, must be set aside. en- CLECs are still entitled to use the Lark, 06-11982, Mich. Bell Tel. Co. v. No. pur- trance facilities TELRIC rates (E.D.Mich.2007). 2007 WL at *7 with the poses of interconnection ILEC agreed The and ordered Both the CLECs and the MPSC com- network. MPSC Michigan appealed en- missioners the decision to this Bell to continue obvious, Although may appear just a 4. it it bears ities” from which it has drawn distinc- that, tion. writing para- express mention graph, the FCC did not use “interconnection'' Michigan Bell continued to inter- verb, describing act as a of interconnect- regulated connection with its network at ing the ILEC in this network. As used rates, (TELRIC) required by as the statute and paragraph, adjective, “interconnection” is an regulations, nothing sug- and in the record (a describing type facility) a noun certain simply gests Michigan Bell under- otherwise. noun, thereby creating a new an "inter- mean that an "entrance stood the TRRO to facility,” something different connection facility” different from an “interconnection So, facility.” and distinct from an "entrance that, facility,” long provides such so as it an says the FCC "access to these facilities” rates, facility” at TELRIC "interconnection sentence, we in the final are confident facility” a can also offer an "entrance rates, referring the FCC is to these "interconnection apparatus) different opposed fаcilities” as to those "entrance facil- should choose to do so. is, court, question for review. we review de novo raising one issue addition, whether have sub- MPSC’s order violated the the FCC Verizon Act, curiae. Telecommunications but we over- mitted briefs as amicus findings turn the MPSC’s of fact and state findings arbitrary law those were II. capricious. Id. present Because the court’s decision “When district ease involves findings no of fact or deter- summary judgment on is the result of law, minations of state review in this case body’s rul review of a state administrative entirely de novo.6 ing, requires prop de novo review that the underlying key statutory provisions er standard of review of the in this ruling applied.” specify state administrative be case involve “interconnection” and Commc’ns, Quick Inc. Mich. Bell that “each exchange v. Tel. incumbent local carri (6th Cir.2008). Co., [i.e., That following 515 F.3d er has the ILEC] duties:” present 6. The dissent reviews case The dissent on relies the FCC's amicus brief deference, through prism through (submitted of Auer upon to this request), court our agency’s interpretation which federal of its interpretation which the FCC offers an ambiguous regulation interpre- “interpretive which —even is itself an rule” presented in tation an amicus brief—is "con- “regulation.” Transp. and not a true See A.D. trolling plainly unless erroneous or inconsis- States, Express, Inc. v. United Robbins, regulation." v. tent with the Auer 905, (6th Cir.2002) (“An interpretative rule is 452, 461, U.S. 117 S.Ct. 137 L.Ed.2d explains existing a rule that clarifies or law (1997) (quotation 79 omitted); mаrks and citations regulation.”; "[IJnterpretalive rules fall Alaska, Inc. v. Coeur Se. Alaska exception within an to the [Administrative Cons.Council, -, 557 U.S. 129 S.Ct. require Act and Procedures] do not notice 2470, (2009). Supreme L.Ed.2d The 193 comment.”). alone, and For these reasons Court has since added two additional limita- might legitimately question applica one (1) equivalence tions: a “near of the statute bility appeal. of Auer deference in this regulation [applicability and belies the of] 993-94; Coeur, Keys, 347 F.3d at 129 S.Ct. at deference,” Oregon, Auer v. 546 U.S. Gonzales J., (Scalia, ("Auer, however, concurring) 243, 257, 904, 126 S.Ct. 163 L.Ed.2d 748 only principle stands for the that we defer to (2006); (2) agency an cannot “under the agency's interpretation ambigu its own guise interpreting regulation of ... create of regulation." (emphasis original)); ous regulation,” de a new Christensen v. facto 576, 588, Dist., Tri-County County, Transp. Boose v. Harris 529 U.S. 120 S.Ct. Metro. 1655, (2000); 997, (9th Cir.2009) ("We not, 146 L.Ed.2d 621 see also Thom F.3d will Shalala, 504, deference, as Univ. v. 512 U.S. guise engage under the of in an Jefferson 525, 2381, (1994) 114 S.Ct. 129 L.Ed.2d 405 end-run around notice-and-comment rule- (Thomas, J., dissenting); Rosales-Garda v. making.”). Holland, 386, (6th 322 F.3d 403 n. 22 Cir. But, body will be as addressed in the of this (en And, 2003) banc). the Seventh Circuit opinion, ignoring questions even these of expressed skepticism ap has some about the applicability, Auer's we find Auer deference plicability of Auer deference to amicus briefs unavailing appeal in this because FCC's level, explaining: at the circuit court proffered interpretation plainly is so errone- agеncies making It is odd to think of law regulation, ous or inconsistent with the see briefs, by means of statements made in Auer, 519 U.S. at 117 S.Ct. we briefs, agency since at least below the Su- attempted can conclude that the FCC has level, preme normally Court are not re- regulation to create a new de under the facto itself; agency viewed the members of the guise interpreting regulation, see Chris- Congress delegating and it is odd to think of tensen, 529 U.S. at 120 S.Ct. We lawmaking power to unreviewed staff deci- therefore decline the dissent’s invitation to sions. apply position Auer deference to amici FCC's Barnhart, (7th Keys v. 993-94 appeal. in this Cir.2003) (citations omitted). (2) duty provide such unbundled network ele pro- Interconnection —The vide, equipment request ments in a manner that allows for the facilities and car- any requesting ing telecommunications carriers combine such elements CLEC], ‍‌‌​‌​‌‌‌‌‌‌‌​‌​‌​​‌​​​​‌​​​‌​​​‌‌​‌​‌​‌‌‌​‌​​‌‌‌‍[i.e., provide rier interconnection in order to such telecommunica [i.e., exchange carrier’s local tions service. ILEC’s] network— 251(c). 251(c)(2) Thus, § § 47 U.S.C. re- (A) routing for the transmission quires provide the ILEC “to ... intercon- telephone exchange service and ex- nection with network” to the CLEC [its] access; change equip- “for the facilities and [CLEC’s] (B) any technically feasible ment”), § requires whereas network;

within carrier’s any requesting “to ILEC nondiscriminatory access to (C) [CLEC with] equal quality that is at least [i.e., use network elements on an of] [its] provided by exchange the local unbundled basis.” But the further stаtute any subsidiary, carrier to itself or to specifies: affiliate, any party other to which interconnection; provides the carrier determining what network elements purposes should made be available (D) rates, terms, on and conditions (c)(3) section, subsection of this reasonable, just, and nondis consider, minimum, shall at a [FCC]

criminatory, in accordance with the pro- whether ... the [ILEC’s] failure to agree terms and conditions of the vide access to such network elements requirements ment and the of this impair ability would of the [CLEC] 252.[7] section and the services that seeks to (3) offer. duty Unbundled access—The provide, requesting telecommuni 251(d)(2)(B) added). 47 U.S.C. (emphasis provision cations carrier for the of a “impairment This is the basis for the anal- service, telecommunications nondiscrim ysis.” inatory access to network on elements promulgated implement- has FCC any technically unbundled basis at ing regulations, at least two of which are rates, terms, point

feasible on and con here, pertinent being the first its “inter- reasonable, just, ditions and regulation, connection” which tracks 47 nondiscriminatory in accordance with 251(c)(2) above): § (quoted U.S.C. agree the terms and conditions of the requirements ment and the of this An provide, sec incumbent LEC shall title.[8] § tion and 252 of this An in the facilities and equipment of re- carrier, cumbent local exchange questing carrier shall telecommunications in- § pertinent provision proceed- 7. The 252 is the rate-of-return or other rate-based “pricing provision, standards” which ing) states: providing the interconnection or net- (whichever applicable) and Interconnection network element work element and charges by a State com- nondiscriminatory, include a rea- —Determinations just mission of the and reasonable rate for profit. sonable equip- the interconnection of facilities 252(d) (statutory § 47 U.S.C. citation form 251(c)(2), purposes § ment for and the of, altered). origin was the and now This just and reasonable rate for of or ac- [use means, TELRIC rates. ILEC's] cess to the network elements for § purposes of shall be based on foregoing 8. See the footnote. (determined the cost without reference to a All brings with the incumbent LEC’s of this us to the tereonneetion TRRO: what says network: and what means. In the part of TRRO addressed entrance facili- (1) telephone exchange For ... traffic (and thereof), analysis ties the FCC stated: (2) any technically At feasible D. Entrance Facilities ... within the network [ILEC]’s Order, Competition the Local (3) quality That is at a level of [used defined transport [FCC] dedicated by the ... ILEC itself] as: (4) On terms and conditions that are incumbent LEC transmission facilities just.... particular dedicated to a customer or perti- 47 C.F.R. 51.305.The FCC’s other carrier telecommunica- regulation counterpart nent “in- to its —its tions between wire by centers owned facility” requirement terconnection its—is incumbent requesting LECs or tele- obligated pro- rule thаt ILECs are not carriers, communications or between vide “entrance facilities”: switches owned incumbent LECs Entrance facilities. An incumbent LEC requesting telecommunications car- [i.e., obligated is not ILEC] riers. [i.e., requesting carrier with un- CLEC] definition, The [FCC] reaffirmed this transport bundled access to dedicated encompassed which entrance facilities pair that does not connect a incum- (the transmission facilities that connect [i.e., bent LEC wire centers an ‘entrance competitive LEC networks with incum- facility’]. networks), bent LEC in the UNE Re- 51.319(e)(2)(i). 47 C.F.R. Recall that mand Order. In the Triennial Review Order, “[b]undling pricing,” is about lease we revised the definition of dedi- provide a network ‘on an transport “[t]o element cated to exclude entrance fa- unbundled basis’ is to lease the element cilities. We determined that entrance requesting to a carrier at a stated facilities ‘exist outside the incumbent [i.e., price specific TELRIC to that local network’ rates] LEC’s and should there- ” Commc’ns, element.’ Inc. v. given Verizon section 251’s focus on com- fore— FCC, 467, 531, 1646, 152 petition U.S. S.Ct. within the local network —be ex- (2002). So, L.Ed.2d 701 provision cluded from the definition of dedicated could be rewritten as: an transport. ILEC We limited the also defini- obligated to provide transport entrance facilities at tion of dedicated to ‘those Or, in positive TELRIC rates. stated transmission connecting incum- an charge competitive terms: ILEC can bent LEC switches and wire centers rates for the use of its entrance Reviewing facilities. within a LATA.’ the Trienni- Order, resulting inference is that the ILEC is al II Review the USTA court obligated not an entrance facili that our indicated exclusion of entrance (or ty unprofit at all it is inconvenient from the facilities of dedicated definition able) See, II, e.g., to do so. transport USTA was odds with the definition (“If (as in appears) F.3d of ‘network element’ found section [entrance 153(29) exclusively Specifically, exist for the conven of the Act. facilities] court CLECs, it excluding ience of the seems anomalous found that we erred in these that CLECs do not themselves facilities from the definition of dedicated ”). for transport purposes implementing them.... of switches, maximizing ability to share unbundling obligation. the section noted, moreover, traffic, that en- or close to aggregate ‘[i]f The court costs and correctly classified facilities are deployed by trance transmission facilities other elements,’ of im- analysis as ‘network competitors, increasing possibility of follow.’ presumably would pairment finding supply. an alternative wholesale addition, reject not In often can locate their II court did 137. The USTA that incumbent LECs conclusion switches close to the incumbent LEC’s our facilities, office, entrance minimizing length unbundle central need analysis through which we cost of entrance facilities. response conclusion. that reached proceeding 139. The record in also this rеmand, the Lo- we reinstate the court’s competitive that are demonstrates LECs of dedi- Order definition Competition cal increasingly relying on competitively transport to the extent cated provided entrance facilities. BellSouth facilities, but we find included notes, example, that between Octo- im- requesting carriers are not September per- ber 2003 and paired without unbundled access to en- facili- percent cent to 20 of the entrance trance facilities. provided competitive ties it had LECs we now suggested, 138. As the court replaced by were facilities obtained from analysis with re- impairment conduct other sources. Verizon states that be- spect to entrance facilities and find that mid-2004, early tween 2003 and it mi- characteristics of entrance the economic 32,000 grated than more entrance facili- that we discussed in the Trien- facilities ty circuits to non-Verizon facilities. No support nial Review a national Order proceeding commenters have dis- finding non-impairment. Specifically, of evidence, which puted this indicates costly to less facilities are wholesale alternatives to entrance facili- build, widely are available from more provided by ties incumbent LECs are providers, greater alternative and have widely appears available. And potential revenue than dedicated trans- competitors incumbent LECs alike port between incumbent LEC central agree continue to that entrance facilities offices. As we noted the Triennial are competitively more available than Order, entrance Review types transport. other of dedicated transport used to traffic to a switch and 140. We note in addition that our find- represent greatest often of ing non-impairment respect aggregation competitive of traffic entrance facilities does not alter aggre- LEC’s network. Because of this right competitive in- LECs obtain gation potential, entrance facilities are pursuant terconnection facilities to sec- likely transport more than dedicated be- tion for the transmission and carry tween incumbent LEC offices to routing telephone exchange service enough justify self-deployment traffic to Thus, exchange access service. Moreover, com- LEC. competitive LECs will have access to petitive unique have a degree LECs these facilities at cost- [interconnection] control over the cost of entrance facili- they based rates to the extent that re- ties, in types contrast to other of dedi- in- quire them to interconnect with the transport, they cated because can choose cumbent network. LEC’s the location of their own switches. For 141. example, they can choose to locate their The evidence described above con- not competitors’ switches close other vinces us LECs are again, access to entrance fa- albeit a impaired without rea- for different it also conclude that would cilities. We son. im- inappropriate apply the same be nothing There is monopolistic 138. test to entrance facilities pairment you about entrance facilities. If adopted types for other of dedi-

we have you CLEC and don’t like transport. explained, cated As we have charging the rates ILEC is facilities are characterized entrance facility, use its entrance then unique operational and economic charac- (or your build lease it from justify separate treatment: teristics that another CLEC that has built its build, they costly to are more are less own). widely provid- available from alternative certainly 139. Other CLECs are doing ers, greater potential and have revenue (i.e., own). building their transport than between in- dedicated cumbent LEC central offices. For And, assured, 140. rest you build reasons, apply these we do not our test your own facility, types transport for other of dedicated you ILEC must still let hook upit entrance facilities. (ie., to its network use its “inter- Red. 20 FCC WL facility”) connection at wholesale ¶¶ (footnotes omitted). 136-141 rates. sense, question appeal one this Therefore, need facilities this from passage concerns the TRRO: provided not be at TELRIC rates. say what does it and what does it mean? So, quеstion becomes: does mean this disagreement parties’ And the as to the says? it appellants what contend meaning present dispute. is central to the But, that it So, it, does not. to find a different begin by restating clearly let us can, meaning, necessary it is succinctly complicate this proceed as we and then is, considerably. discussion ap- to what Based on our That plain means. FCC, pellants the MPSC reading, plausible we find most “trans- Commis- —the sioners, complicate lation” to be: and the CLECs— considerably. explaining Before po- their order, 136. In ive our last drew two sition, however, simple analogy we think a single prem- conclusions from helpful. be ise: Premise: Entrance are not facilities Suppose you a public park lived next to ‘within’) part even a hook-up that had no electrical of its own. ILEC’s network. Therefore: suppose village And that the elders decid- First Conclusion: Entrance do that, installing ed rather than an electrical unbundled; not need to be hookup park, they park- would allow Second Conclusion: We do not even goers up your electricity to hook at your impairment need to conduct an anal- (and house because compensated you ysis on entrance facilities. enough electricity to cover the added us- Alas, II when the USTA court consid- age plus tidy profit, you eagerly agreed). proposition, rejected ered this our Thereafter, park-goers arrived

premise and our second conclusion. park needing electricity, you allowed them 137. But the II plug your USTA court did not into electrical outlet in conclusion,

reject garage. our and we This outlet is the “interconnection first facility.” now reach that same conclusion (“en-

But, park- big orange extension days having after a few their cords facilities”), yard wanting up enter trance to hook trample your across goers (as So, your electricity right). you their your plug into the electrical is garage you get surge protectors one of those with six garage, outlet on the wall inside the in buy big orange eight plug-ins, plug one of those or into the outlet decide cords, your in plug garage, plug big orange it into the outlet the two extension cords, your your yard and run it extension as well as the two new garage, across cords, park. park-goers’ surge This access to extension into this and into makes (and electricity protector. big orange closer to hence more extension cord for) park-goers, they facility, convenient would still be the entrance but the longer trampling your yard surge protector no or en- outlet in the would now be are note, tering your garage. facility.” By forcing because the “interconnection And plug park-goers plug surge pro- can still into the outlet in the into the park-goers (rather outlet), they if your garage they you want to need tector than the wall plug big orange facility.” into the extension cord have moved the “interconnection (And to), they big orange if don’t want ex- is a critical if you here aside: forced facility” cord park-goers plug big orange tension “entrance and the to the your “in- garage the outlet remains the extension cord—and forbade them from (or facility.” terconnection if plugging surge Even all into the wall outlet park-goers plugging big protector) big are into the orange extension cord —the cord, orange extension cord is still would become the “interconnection facili- facility. But, ty.” just The interconnection fa- to ease the analogy, let’s cility garage you remains the outlet in the so assume allowed them to plug into the long park-goers as the plug surge protector.9) could there they if wanted to. Now, later, you some time a big need arrive, park-goers you might orange

As more pur- extension cord for some other (let’s put big out a orange pose say, lights), second extension cord Christmas but the (i.e., a facility”). park-goers using your second “entrance And are extension cords. that, suppose point, So, at this park- you park-goers you all the tell the are goers happily plugged big going into the either to take the extension cords orange use, suppose charge extension cords. Now back or you for their so that couple that a more park-goers buy yourself arrive with can park- new one. But the course, But, very just facility.” you Of this aside is the aside that an "entrance had present confuses this whole situation in the they plug big orange said must into the exten- FCC, MPSC, CLECs, case—-the and dissent cord, big orange sion then the extension cord (and argue agreed) two courts have that an and, facility” becomes the "interconnection facility” "entrance is an "interconnection fa- consequently, park-goers may plug into it can, could, cility” just because CLEC free, your agreement under with the vil- would use it to interconnect to the ILEC lage electricity. them with So it is, they argue big network. That would goes with the ILECs and CLECs— orange extension cord is an "interconnection says the ILEC that the CLEC must connect at facility” park-goers because the could or facility the entrance would that entrance facil- would use to interconnect with the electri- (and, ity facility become an interconnection garage. cal outlet in the But all of that miss- rates). consequently, require TELRIC All of point, park- es the which is not whether the however, point, this is beside the because interconnect, goers "can” use it to but wheth- nothing suggests Michigan homeowner, record they you, er "must.” If as the Bell has they may plug surge had told CLECs must con- said that into protector, big orange then the purported facility. extension cord nect at a 141.Therefore, the homeowner need village that complain to the goers big orange not extension you electricity and now promised were facilities’). (i.e., cords ‘entrance village elders think give it. The won’t you right: that are decide over and simple enough. all That seems not include electricity they promised did appears just simple And it as when we your big orange extension free use of analogy apply this to the facts of our ease. cords, they say: so Michigan Bell offers each CLEC both an facility and an entrance fa- interconnection nothing special big about 138. There is cility. long Michigan So as Bell offers an you If orange extension cords. facility interconnection at TELRIC rates that don’t like the rate park-goers (and compliance with 47 C.F.R. charge going the homeowner 51.305), may charge competitive rates you to use her extension cords for the use of its entrance facilities. Cor- facilities’), (i.e., ‘entrance then respondingly, connect di- CLEC (or from bring your own lease one (at rectly facility the interconnection park-goer another who has rates), to Michigan TELRIC connect Bell’s own, if brought you his or her can (at facility Michigan Bell’s com- deal). a better get rate), petitive party’s or connect to a third certainly do- park-goers 139. Other (at rate). facility party’s the third (i.e., bringing their own ing Commissioners, But the MPSC cords). extension CLECs, dissent, and the two Circuit And, assured, you bring 140. rest Courts to have considered this all see it

your big orange extension way. They explain another that entrance (i.e., facility’), (1) cord ‘entrance purpоses: facilities are used for two you plug homeowner must still let carry among communications cus CLEC (i.e., (2) surge protector it into her backhauling); tomers to inter facility’) at no her ‘interconnection to the connect CLEC ILEC network. cost, just And, relying be- on unmen you doing were this —otherwise ¶¶ 137, premise, they argue tioned fore. 10— "backhauling” is economics of dedicated facilities used for 10. The dissent contends that mentioned, sufficiently but that certain footnotes backhaul between networks are TRRO, ¶ ¶ transport n. 138 n. 389 and 141 different from within an incum- precise analysis "draw that distinction” between back- bent LEC's network that our must distinction.”) Op. hauling interconnection. at adequately Dis. reflect We ¶ This overstatement of the TRRO reject suggestions 14. is an thus commenters' misapprehension as it and a TRO subject entrance facilities should be to the First, upon relied notes, in those footnotes. foot- applies same test that to dedicated trans- their entireties: which state in port incumbent LEC facilities. See between 50-52; ¶ [TRO, Loop-Trans- & T at n389. 18 FCC Red. at AT Comments 16978] 87; ATX, 17204-05, port Bayr- para. The record contains Coalition Comments at 367. 48; ing, Reply ‍‌‌​‌​‌‌‌‌‌‌‌​‌​‌​​‌​​​​‌​​​‌​​​‌‌​‌​‌​‌‌‌​‌​​‌‌‌‍Reply are able to et ah McLeod at evidence LECs third-party obtain entrance facilities from 37. Comments, A, providers. Exh. 20 FCC Red. 2005 WL 289015 See NuVox added). (NuVox (Feb. 4.2005) (emphasis Declaration of Keith Coker Coker available, two, Decl.) ("[W]here thing para. Nu- The first to note is that these incidental, seemingly third-party providers references to backhaul- Vox utilizes for back- ing paragraphs arrangements of six haul from NuVox collocation context —within switches.”) hardly paragons 23 footnotes—are to NuVox Order, suggests. “precise Review distinction” the dissent n. See Triennial ("[T]he thing para. to note is that the FCC's 18 FCC Red at second theory, say charge separate-use that ILEC can this the homeowner and 141 (i.e., charge park-goer could to use the ex rates for the first use holding ¶ of purpose tension cord for the says but backhauling), ground, conveying off the but not for light for the charge TELRIC rates ILEC must electricity light.11 to that (i.e., with the other use interconnection network). So, anal complete our ILEC theory requires sever- separate-use This had taken the ogy, suppose park-goer a assumptions, easily al none of which is cord, big orange extension First, homeowner’s requires defended. us to assume branch, and connect strung it over a tree separate used two terms— FCC dangling (resulting facility” a to the end fa- light ed “entrance “interconnection wire, branch, cility” tree via describe the same exact light dangling a from the —to cord). any explanation why.12 orange extension Under without big ¶ backhauling cility.” meet-point example perfectly in the TRO 367 fits reference to (For support separate-use theory, explana- was not in of within our framework. further rather, tion, footnote.) support separate- was in of the but see the next The dissent also explained through- example. facilities we have scheme cites the "collocation” This is one Specifically, opinion. the FCC used virtually examples analogy out this of an of limitless (since fit, support position its being this distinction imperfect as would be the case reversed) that facilities are not even entrance any analogy. question As for the network, part of the ILEC's therefore facility whether an interconnection is distinct analysis require any impairment would not facility, and different from an entrance how- ¶ ("Our ever, all. See TRO 366 n. 1116 determina- example wholly this irrele- collocation is effectively tion here eliminates 'entrance facil- vant. and, [unbundled elements] ities’ as therefore, network pending assumption [FCC’s moots the notice of is the crux This dissent's making] proposed proposes principal argument rule insofar itas interconnection fa- —that obtaining really limitations on entrance facilities as cilities and entrance facilities are one II, UNEs.") (overruled by USTA and the same because facilities "[e]ntrance 554). ordinary meaning come within the of a 'tech- nically obtaining feasible method of intercon- point, 11. At this as we are about to abandon ” ¶ Op. (quoting at 7 nection.’ Dis. 47 C.F.R. big-orange-extension-cord analogy, we in- this is, 51.321(a)). § That the dissent "reasons” you momentarily forego- vite to return to the "provide that because ILECs must ing paragraph, in which we restated TRRO technically obtaining feasible method of inter- ¶¶ analogy, 138-141 in terms of this and at- rates, connection” at cost-based see 47 C.F.R. tempt separate-use theory to reconcile this 51.321(a), § entrance because (138— paragraphs with the statement in those technically obtaining are a feasible method of 141). Similarly, It cannot be done. the back- interconnection, the ILECs must therefore hauling separate-use theory simply cannot be provide entrance facilities at cost-based rates. plain language reconciled with the ¶¶ of TRRO reject argument 138-141. We this for at least three First, directly reasons. contradicts 47 also, point, pause We should at this to ad- 51.319(e)(2)(f), says C.F.R. which that an dress the dissent's two corollaries to this obligated ILEC is not hypothetical: "meet-point” and its "collo- Second, facilities at cost-based rates. at least examples. cation” The first is incorrect and view, in our entrance facilities are actual- inapposite. says the second is The dissent ly "technically obtaining feasible means of portion "[a]n incumbent’s of a meet- out, interconnection” do not connect point facility, merely because it turns one man- directly; the CLEC with the ILEC network facility,” Op. ifestation of an entrance Dis. facilities, used, ¶ connect the simply but that is untrue. An ILEC's (i.e., facility portion meet-point facility CLEC with interconnection of a described —as Facility regulations the dissent and the ILEC Interconnectiоn Entrance "in- 3=± <=> —is CLEC). facility,” Facility finally, even terconnection whereas the CLEC's And if en- <=± portion technically meet-point an "entrance fa- trance facilities were feasible among data CLEC transporting poses that the Second, us to assume requires (backhauling), rather than be- refer to a customers facility” to “entrance used FCC ILEC),13 even the CLEC and pur- tween wire of that use particular See, interconnection, e.g., TRRO 140. On tion 47 C.F.R. method facilities.” distinction, pro- 51.321(a) require the FCC—in the ILEC the other side of does not facility rather than some "entrance facilities” as vide an entrance the TRO—described other) technically feasible ("any” connecting other facilities incumbent "transmission Sup- logic is flawed. The dissent’s means. competitive LEC networks LEC networks to system was example, public pose, school for backhauling purpose traffic.” TRO for awith obligated provide school children So, ¶ between backhaul- the distinction transportation and from means of feasible is, again, ing not be- and interconnection means of is a feasible A limousine school. para- tween uses but between facilities. children, at transportation indeed, some — states, graph pertinent part: television, to and take limousines least on UNEs, including trans- order to access [I]n So, logic, by the dissent’s school. from incumbent LEC switches mission between obligated system be would school centers, providing wire while their feasible because limousines limousines competitive switching equipment, and other transportation. means of [i.e., require link an a transmission LECs accepts assump- eagerly this facility] 13. The dissent the UNEs on the entrance from tion, and the TRRO suggesting [i.e., that the TRO interconnec- incumbent LEC network arguing conjunction and be read should equipment facility] their own located tion separate-use dis- the TRO establishes that Competitive LECs use these elsewhere. backhauling and intercon- tinction between connections between incum- transmission ¶ Op. at 15. nection. Dis. networks and their own networks bent LEC exclaims, [else],” "would “Why the dissent [i.e., both for intercon- facilities] unbundling analysis [in the FCC clutter its Unlike the nection and to backhaul traffic. by stressing the distinction between TRO] explicitly LECs facilities that incumbent Op. backhauling Dis. and interconnection?” available for section must make ¶ 365). ¶ (citing If we treat as TRO [i.e., facili- interconnection interconnection argument, inquiry', a rhetorical a real and not ties], require that the Act does not we find entirely plain. The FCC took the answer is LECs to ttnbundle transmission incumbent approach approach in the TRO—an different connecting incumbent LEC net- facilities rejected by II and recon- USTA that was later competitive LEC networks for the works to which it held that the TRRO—in sidered in [i.e., backhauling en- purpose traffic (no use) were matter their facilities]. trance network, impair- so no of the ILEC's outside ¶ (footnote omitted). This same TRO 365 necessary. analysis was even ment read follows if it were paragraph would (TRO paragraph cited the dissent In the the terms of the TRRO translated into 365), ¶ between the FCC drew a distinction facility” and "in- using phrases "entrance facili- facilities and entrance interconnection facility”): terconnection fact, ties, using terms. without those albeit network, to access the ILEC In order phrase "interconnec- FCC did not use the link from the need a transmission CLECs TRO; facility” anywhere that is a tion facility to their own ILEC's interconnection TRO, FCC In the phrase new to the TRRO. elsewhere, equipment and this is located what it now calls "interconnection referred to facility.” CLECs use called an "entrance (see, points” "interconnection facilities” as for intercon- these entrance facilities both 1120), ¶¶ 7, n. 367 n. e.g., TRO facility nection with the interconnection (e.g., points types these designated certain "intercon- traffic. Unlike and to backhaul (SPOI), mini- single point of interconnection facilities,” make which ILECs must nection (MPOE)), entry grouped mum interconnection, the Act does for available description points by as “the facilities these require provide these “en- ILECs to explicitly must make incumbent LECs that trance facilities.” 251(c)(2) interconnec- available for section So, question: returning ¶ to the dissent’s 365). (TRO not use the The FCC did tion” ” unbun- “Why the FCC clutter its ... would anywhere points phrase "interconnection TRRO; by stressing be- dling analysis the distinction phrase "interconnec- it used the en- though ing the FCC has never defined interconnection and the LEC’s net- work.”). facility way. trance See TRRO 136 (“entrance facilities the transmission [are] Finally, requires us to assume facilities that connect LEC Congress phrase used the “provide networks”); networks incumbent LEC ... interconnection with the net- [ILEC]’s 51.319(e)(2)® (“Entrance fa- C.F.R. 251(c) work,” (emphasis 47 U.S.C. add- transport [are] cilities dedicated ed), Congress actually meant pair does not connect a of incumbent LEC obligated ILEC is physical “lease a centers”).

wire (or wire)” facility to the CLEC rather than Third, requires that the us assume merely a plug-in “make available” con- FCC used the term “interconnection facili nection with the CLEC’s facilities and ty” particular to refer to a use of that wire equipment, though even this is unnatu- (i.e., purposes transporting for of data be ral reading phrase, of the support with no ILEC, tween the CLEC and rather than in the statute. customers), among though even CLEC Box, In Illinois Bell Telephone Co. v. any neither the FCC nor court has ever (7th 1069, Cir.2008), 526 F.3d 1071-72 the way. defined interconnection that See Lo Seventh Circuit considered this issue and Order, Competition cal 11 FCC Red. ¶ held that the “[w]hat FCC said 140 is ¶176 15499, 1996 WL (Aug. that ILECs must allow use of entrance 1996) (“the term ‘interconnection’ under facilities for interconnection at ‘cost-based section only physical refers to the ” But, rates.’ the began Seventh Circuit networks”); linking of two AT T Corp. & analysis by assuming its very question FCC, (D.C.Cir.2003) v. 317 F.3d decided, stating: be (“to exchange ‘interconnect’ and to traffic ], In the [TRRO the FCC concluded that hаve distinct meanings”; interconnect “re CLECs do not need entrance facilities only fers equipment,’ ‘facilities and not backhauling and should build their for service”); provision any of Competi equipment handling CLEC-to- for FCC, tive Telecom. Ass’n v. CLEC provide ILECs need not (8th traffic. Cir.1997) 1071-72 (“Congress intend unbundled network elements to CLECs ed ‘for the transmission routing and that can serve ‘im- customers without telephone exchange service exchange and pairment’ through their own network el- access’ to describe what the intercon ements. No one contests the FCC’s nection, link, physical would be used litigation. conclusion in this terms, By for.... its own this reference (citation link, [to physical omitted; interconnection] is Id. at 1071 emphasis added). equipment between the But, the carrier seek- these qualifiers two —“for backhauling tween and Obviously, interconnection?” actually just qualifi- this is one er, ¶ 365). Op. (citing handling Dis. at 15 inasmuch TRO II The an- as "for CLEC-to- CLEC traffic” is the definition of swer is "backhaul- clear: to describe and differentiate ing,” why and the Seventh Circuit used two types two yet for which it had not facilities separate labels is unclear —other than as a And, “Why established names. would [the solidarity show of with the FCC and claim continuing FCC] underscore the incumbents' separate that it used two labels for the same obligation interconnection facili- facility” wire: "entrance and "interconnec- Op. ties?” Dis. at 15. Because intercon- event, facility.” tion we note them nection facilities and entranсe facilities are separately emphasize here to that neither things. different actually passage term is included in the TRRO here, clearly issue nor is either term con- FCC’s Until could handling and “for CLEC-to- order. then CLECs backhauling” be nowhere to found use entrance facilities for both intercon- traffic”—are CLEC passage at issue nection and backhauling. text of TRRO Under these, order, added facili- The Seventh Circuit state’s CLECs use entrance here. interconnection, just ties for explanation justification. exclusively without ¶ IjO. as FCC said in from this qualifiers remove those If we ¶of 140 interpretation we have an passage, added). (emphasis Id. But once we omit drastically different from both unjustified unexplained qualifiers, and plain and true Circuit’s Seventh thereby remove the artificial distinc- language TRRO: (between backhauling tion that create interconnection), it becomes clear that In the the FCC concluded [ILECprovided] making the act entrance facilities avail- do not need en- CLECs and able rates for interconnection backhauUng TELRIC trance (but [entrance-facility] backhauling) insupportable not in- build them own should handling—QLEC-to- support asmuch its sole equipment TRRO for — ¶ 140) actually says no thing. need such Conse- CLEC trafficILECs quently, reject both premise elements to CLECs we unbundled network serve without ‘im- the conclusion Illinois Bell. that can customers own network el- pairment’ through their Telephone, In Southwestern Bell L.P. v. the ements. No one contests FCC’s Commission, Public Service Missouri in litigation. conclusion this (8th Cir.2008), F.3d Eighth 683-84 the Thus, join cannot the Seventh Circuit’s we Circuit considered this and reached issue of the TRRO. interpretation the same conclusion as the Seventh Cir cuit. acknowledging After the clear state qualifier-filled interpretation Using its of ment in that are not the TRRO CLECs the the Seventh 140 of Circuit impaired access without to entrance facili proper reading declared this is the ties, Eighth right the Circuit turned is what the TRRO because this the FCC around finding and asserted that the said the TRRO. But Seventh Cir- not, however, “does right alter the “reasoning” entirely cuit’s circular. It facilities CLECs to obtain interconnection said: pursuant §to for transmission protests [by AT T making & en- routing telephone exchange and service trance facilities available TELRIC service, i.e., exchange access CLEC to interconnection, to the for rates CLECs ILEC to traffic.” Id. and ILEC CLEC state the commission] the nullifies justification explanation Without further or point speci- order. FCC’s What’s (other Box, than a “see” cite to F.3d at cannot demand fying CLECs access 1071-72), the court asserted: to entrance facilities unbundled net- elements, inquires, T if The work AT & state FCC determined [that] carry commissions can turn around and re- entrance facilities to CLEC uses users, quire price the same access at the same traffic to and from its own end i.e., CLEC, backhauling anyway? answer is that CLEC to enjoy do not the ‘same’ is not entitled to obtain entrance CLECs access CLEC If UNEs at rates. entranсe facilities under state com- facilities as TELRIC to in- they did needs entrance facilities mission’s decision as before CLEC passage to this when used nected elsewhere TRRO. network,

terconnect with an ILEC’s distinction is not between interconnection right has the to obtain such facilities (e.g., and some other backhauling); use Thus, from the ILEC. CLECs must be the material distinction is between the provided access TELRIC rates nec- designated ILEC’s side of the connection essary to interconnect with the ILEC’s point facility”) “interconnection network. CLEC’s side of the designated But, Box, Id. as with this conclusion is point (i.e., connection the “entrance facili- (assumed) true, true if the premise is and ty”).

it is not—-the backhauling FCC made no Moreover, the assuredly ILEC most has distinction and the TRRO FCC has obligation provide no any entrance fa- not said that right CLECs have a to en- cility and the has obligation CLEC no trance purposes some but not (the use the ILEC’s facility entrance others. The FCC has said that ILECs can directly CLEC connect to the inter- have no obligation entrance fa- facility, connection rent someone else’s en- cilities at TELRIC rates. C.F.R. 51.319(e)(2)®. facility, trance or build its own facility). course, Of if the ILEC chooses We do not find these persua- two cases facility, it must sive. plausible The most reading of the provide it in addition to the interconnec- plain language of the TRRO is that facility, tion not instead interconnec- ILEC must allow the CLEC connect its o/the (as facility tion network, effectively network would to the ILEC’s charge change the designated more than CLEC connection TELRIC rates for this connection. If the and transform the purported ILEC “entrance fa- requires the CLEC to connect at some cility” into an facility”). “interconnection point other than directly network, into its And, if the CLEC chooses to use the (or then the link “bridge” if the word ILEC’s facility, it pay must the “bridge” provides a better image) between ILEC, rates determined competi- the designated ILEC’s connection point tion with providers. other and the ILEC’s network is what TRRO As we understand the situation in the ¶ 140 refers to as an “interconnection facil- us, Bell) case before (Michigan ILEC ity,” and may charge only ILEC TEL- offers its CLECs an interconnection facili- (or RIC rates for the use of any) ty at TELRIC rates and entrance facilities facility. interconnection rates, at competitive which in perfect is Amy (link, etc.) facility “bridge,” outside accordance with the plain language of the of the designated ILEC’s connection TRRO. The MPSC ‍‌‌​‌​‌‌‌‌‌‌‌​‌​‌​​‌​​​​‌​​​‌​​​‌‌​‌​‌​‌‌‌​‌​​‌‌‌‍Michigan ordered Bell (i.e., the link that connects the CLEC to to offer the CLECs the use of its entrance designated ILEC’s point, connection rates, facilities at TELRIC and based this and from there to the ILEC network via order on its mistaken belief that TRRO the ILEC’s interconnection facility), is not ¶ requires 140 Michigan Bell to treat its itself an facility”; “interconnection anis entrance facilities as interconnection facili- facility.” “entrance Obviously, the CLEC ties time the ultimаtely CLECs use would ultimately be using the them for facility interconnection. The district connect its network with the rejected court ILEC’s network (through reading MPSC’s of the designated point, via the facility), agree interconnection but and we with the district wholly immaterial. The material court’s view.

387 in sharing obligation, part As this III. certain cumbents must lease elements reasons, we foregoing For all “un competitors network to on an their of the district judgment AFFIRM la carte —basis and must do bundled” —a court. rates. 47 so at cost-based U.S.C. (d)(2). SUTTON, dissenting. 251(c)(3), competi Judge, § That allows Circuit network with other tor to connect its admirably pieces together majority The networks, ser enhanced phone technical statutory, regulatory and expand customers or to vices to its To complicated case. components of potential so can reach a broader network concludes, they show majority gether, 153(29); § customer See id. Trien base. duty of the incumbent that the telecommu Order, 18 F.C.C.R. 16978 nial Review Bell, pro “to Michigan provider, nication 51.319(a). (2003); upshot 47 C.F.R. net with [its] ... interconnection vide that, rates, duty competitor if a of this wishes competitors cost-based work” to 251(c)(2), everyone in a requires only phone to offer service 47 U.S.C. competitors community incurring up without Michigan given Bell telephone its local net plug into each place running front costs its own wire to fall out that “entrance facilities” customer, work and imple the Act and potential obligation. this interconnection side of menting facilitate the regulations entrant’s interpretation. a reasonable That be by requiring the incumbent offer efforts however, too, competing is the FCC’s So on unbundled terms these services an inter premised one on interpretation, cost-based rates. one regulations of its pretation related, but imposes The Act narrow as a result. See respect must that we er, must sharing obligation, one also 452, 461, Robbins, 519 U.S.

Auer v. at cost-based rates. Incum provided be (1997). I ac L.Ed.2d S.Ct. interconnection “provide must bents dissent. cordingly respectfully so competitors network” to with [their] Act of Telecommunications Prior to the seamlessly can one network customers on 104-104, 110 Stat. Pub.L. No. on the other network. call customers companies, such telephone local incumbent 251(d)(1); 251(c)(2); § § 47 see id. U.S.C. Bell, enjoyed a mo Michigan natural as § (defining interconnection C.F.R. 51.5 recreating fixed costs of nopoly. high mutu networks for the “linking of two network, including run telephone a local traffic”); Br. 4. In exchange of FCC at al in a each home and business ning wires to no obligation, of this rational the absence marginal community, together with low large in switch from the consumer would network pre-existing a operating cost of entrant, at competing least cumbent to the insurmounta “an almost gave incumbents a steep discount. Who wants without advantage.” Verizon ble service that connects custom рhone local FCC, 490, Commc’ns, 467, Inc. v. 535 U.S. handful of other individuals just ers to (2001). 1646, L.Ed.2d 701 122 152 S.Ct. Commc’ns, community? See Verizon Act monopolies, 1996 To these combat 490, By 122 1646. re S.Ct. 535 U.S. at their net share that incumbents mandates service, rates for this quiring cost-based rates. at competitors cost-based work with incumbents Act ensures that do 1646; T AT & at 122 S.Ct. id. See for competition-dampening rates Bd., 366, 371, charge 525 Corp. v. Iowa Utils. U.S. (1999). interconnection, insignificant a not risk 721, 142 L.Ed.2d 835 119 S.Ct. 388

given issue, that entrants need regulations interconnection FCC wrote the at all of more than incumbents do. which means that interpretation the FCC’s regulations’ binds us unless it flouts the brings me to “entrance facili Which Auer, text. See 519 U.S. at 117 S.Ct. ties,” part network in 905. cumbent, Bell, Michigan issue here. physically Entrance facilities link telecom The line permissibly drawn the FCC together, munications networks interprets regulation. see Trien its own In elaborat (TRRO), 251(e)(2)’s ing § nial Review Remand Order 20 on duty “provide ¶¶ (2005), interconnection,” F.C.C.R. 2533 136-39 and com regulation the FCC’s petitors use an says incumbent’s entrance facil provide “any incumbents must purposes: technically ities for two interconnection obtaining feasible method of in backhauling. See Triennial Review terconnection” at cost-based rates. 51.321(a). § 365. When used for Order interconnec C.F.R. Entrance facilities tion, entrance facilities route traffic ordinary be come within the meaning of a competitor’s tween one of the “technically customers feasible obtaining method of one the incumbent’s custоmers. They interconnection.” “designed When used for backhauling, very entrance fa purpose linking two carriers’ Box, cilities route traffic between two of the networks.” Ill. Bell Tel. v.Co. competitor’s customers, (7th Cir.2008). likely because the F.3d And that competitor leases some competitors elements of the is how use them —to bridge network, incumbent’s rather than between the gap between their network and an competitor customer of the and a cus point interconnection within the incum ¶¶ 365, tomer of the incumbent. See id. bent’s network so that the two networks 367. mutually can exchange traffic. See U.S. FCC, Telecom Ass’n v. deciding what incumbents (D.C.Cir.2004). charge for the use of their entrance facili- ties, the interprets FCC regulations its In providing examples illustrative of an line, draw a distinction. On one side incumbent’s interconnection duties incumbents must 51.321, lease their entrance facil- the FCC confirms that regu competitors ities to at cost-based phrase rates lation uses the “method of obtain when use the facilities for intercon- ing interconnection” ordinary side, nection. On the other incumbents applies sense—one that to entrance facili may charge rates, market-based or not ties. example says One incumbents all, lease the competitors upon request must interconnect com use the backhauling. facilities for petitors facilities, through meet see (at 15-17, Everyone FCC Br. at 51.321(b)(2), least C.F.R. which requires case) everyоne agrees involved this that the competitor incumbent and to build the correctly FCC concluded that incum- transmission respec facilities from their may charge bents market-based rates for tive networks to a designated point meet backhauling. What parties divides the is and to link the two transmission facilities correctly whether the FCC concluded that together point at that “for the mutual ex incumbents cannot do traffic,” the same for inter- change of Competition Local Or der, (1996). ¶553 connection. In answering question, 11 F.C.C.R. 15499 An we keep must in mind that Congress portion incumbent’s of a meet facili charged out, the with administering ty, FCC it merely turns is one manifesta § 251(d)(1), § see 47 U.S.C. and the tion of an facility, entrance as entrance ¶¶ 1-4, regulations, unbundling facilities see TRRO “the transmission facilities Nearly a of the order quarter 19-20. competitive LEC networks connect that unbundling overarching the FCC’s networks.” See clarifies incumbent LEC with ¶ one discusses analysis paragraph and not example dealing Another TRRO — analyzes collocation, the FCC interconnection ob- installing which how is with ¶¶ solely by See id. 20-65. ligations. equipment for use maintaining physical anat incumbent’s competitor the entrance The one section that mentions § shows facilities, 47 C.F.R. 51.5-also see on confirms the TRRO’s focus facilities meth- duty incumbent’s to that an The sec unbundling, interconnection. fa- covers obtaining interconnection ods would analyzes competitors whether tion gap be- bridging aid the that cilities without unbundled access “impair[ed]” be 47 U.S.C. two networks. tween 251(c)(3), § facilities under to 251(c)(6) (mandating al- § that incumbents they concludes that would not be. See or virtual “collocation physical low ¶¶ 136-41; see also 47 U.S.C. TRRO interconnection”); necessary for equipment 251(d)(2). Yet, out, points § as the FCC 51.321(b)(1). § 47 C.F.R. analysis play has no role to impairment an 251(c)(2), context, § might see 47 U.S.C. all of this in under put To 251(d)(2); Br. § FCC and the FCC majority’s to the extension- help to return never, my example knowledge, to considered meet-point The has analogy. cord analyzing when an incumbent’s impairment homeowner some- saying to akin Bell, obligations. with an See Ill. park-goer interconnection must times an cord, (noting F.3d at 1072 price, at a cost-based whether extension charge with the incumbent can market-based rates garage outlet links the cord, than related to the extension rather for interconnection “is not park-goer’s under scope obligations run an extension of an forcing park-goer [incumbent’s] to 251(c)(3) furnish way § to the unbundled network park all the from the cord elements”). then, surprising, It would be forcing park-goer pay garage or exempted the use TRRO entrance facilities market-based rates for homeowner obligations of 47 pre-existing cords. collocation obli- from the of its of one 51.321(a) analy § a novel through akin to the home- gation saying C.F.R. comment. park-goers let sis without owner sometimes must an extension cord on a reel store sоle of intercon- The TRRO’s mention garage and access garage facilities in the context of entrance nection garage from the want to extend cord cautionary note: No one instead sounds show, these park. examples As categorical read the unbun- should FCC’s duty encom- incumbent’s interconnection affect- analysis under dling providing competitors more than passes ing incumbents’ interconnection duties un- plug into. with outlet 251(c)(2). (stating See TRRO 140 der re- finding non-impairment The Triennial Remand Order “our Review does not alter position. spect not undermine the does FCC’s to obtain represents right the FCC’s fourth LECs The TRRO unbundling pursuant to sec- promulgate valid interconnection facilities attempt 251(c)(2)”). cautionary v. note see Commc’ns Co. tion This regulations, Covad (D.C.Cir.2006), if, FCC, sense FCC and perfect 531 and makes as the 450 F.3d appeals of this issue satisfy the con- both courts to address it aims to D.C. Circuit’s concluded, facilities used setting previous aside have entrance cerns the FCC’s 251(c)(2)’s line, § fall within in functional that would not interconnection eliminate Bell, obligation. point; See 526 ambiguity terconnection Ill. about the the silence (“What ambiguity, particularly F.3d at 1071-72 the said create FCC would ¶ consistently the 140 is that must allow use since FCC has drawn [incumbents] facilities for interconnection at implementing of entrance functional lines when Tel., rates’.”); Bell L.P. v. Act. ‘cost-based Sw. See Triennial Review Order ¶¶ Comm’n, 365-67; Competition Mo. Pub. Serv. Local Order ¶ (8th Cir.2008). way, ap- 553. Either Auer deference position to plies the FCC’s that those promulgated by The regulations paragraphs draw a functional line that TRRO, moreover, only unbundling discuss only from exempts incumbents the obli- obligations. say “in They accordance to gation lease their entrance 251(c)(3)” provision with section im —the competitors rates use cost-based unbundling in posing requirement —an backhauling, op- those facilities for obligated provide cumbent “is not to a ” posed to interconnection. with requesting carrier unbundled access Michigan entrance facilities. 47 C.F.R.. Bell’s competing interpretation 51.319(e) added); § (emphasis awkwardly see also also fits with the TRRO and its TRRO, speaks predecessor, 20 F.C.C.R. 2682. This the Triennial Review Order. unbundling correct, to an incumbent’s ifWhy, interpretation obli narrower, not gation, independent duty its unbundling would FCC clutter anal- “provide ... ysis stressing interconnection” under the distinction between 251(c)(2). Michigan § disagrees, backhauling Bell and interconnection? See ¶ claiming the regulation “unequivocally]” why Triennial Review Order 365. And obligation states incumbents have no would underscore the incumbents’ con- facilities, period. tinuing obligation interconnec- Michigan id.; Br. at Bell 23. But this turns tion facilities? See TRRO 140. phrase “with points unbundled access” into a emphasis These make little sense appendage. useless See Ins. Co. if entrance facilities never function as Safeco Burr, 59-60, Am. v. § 551 U.S. 127 S.Ct. interconnection facilities. (2007) 2201, 167 (noting gen L.Ed.2d 1045 support To exclusivity theory, its mutual eral rule that give courts should effect to majority notes that incumbents in provision). all words facility choose whether counts as an en- Michigan Bell reads the differ- facility TRRO trance or an interconnection facili- ently. The it says, ty. draws no If the requires incumbent that com- distinction petitors between functions that facility, interconnect at then facility (backhauling in- facility. versus it is an interconnection But if the terconnection), but instead a dis- provides facility bridges draws incumbent tinction between two distinct and mutual- gap between the incumbent-designated (entrance ly types exclusive of facilities point competitor’s interconnection and the interconnection). network, versus text then it counts as an entrance ¶¶ 136-41, true, distinguish however, does not facility. premise, This does backhauling 251(c)(2), between square interconnection. which in- requires But paragraphs “provide footnotes those cumbents interconnection” precise draw that technically distinction. “at feasible within ¶¶ 251(c)(2) (em- TRRO 138 n. n. And network.” [its] U.S.C. added); even had not phasis Competition FCC drawn this see Local also

391 than staff decisions.” As allows “unreviewed that (stating 209 Order it, if wrong and I am myself, I doubt points in an “to the select competitors not a suggests management problem, a which network incumbent[’s] agencies oper of how should traffic”). proper view in ab- And the deliver wish to likely agencies ate. It take seems no premise, I see workable of this sеnce particularly their those amicus sup- these distinguish two way to between briefs— appeals— of a request filed at the court mutually exclusive posedly distinct and seriously frequent at least as their more as facilities. types of letters, Auer opinion which also receive majority’s the point. more While One deference, v. Ford Motor Credit Co. see analysis is that objection to this principal 555, Milhollin, 563-64, 444 100 S.Ct. U.S. day thus as and regulation plain (1980). 790, 22 agencies 63 L.Ed.2d As no room for administrative defer leaves moreover, appreciate, must lower well ig ence, suggests two reasons for it also the Su reap courts the same benefits as First, altogether. noring Auer deference from an “fair and preme agency’s Court case, sug a which it cites Seventh Circuit Auer, judgment,” considered 419 U.S. (like briefs gests agency amicus 462, 584, advantage 95 including S.Ct. here) get Auer deference filed should one “unique poli agency’s expertise and Court, not at the Supreme at the prerogatives,” Martin v. Occu cymaking a case appeals. reaches court of Until Com’n, pational Safety & Health Review view, Court, agency goes Supreme 1171, 111 U.S. S.Ct. staff deci represent briefs “unreviewed (1991). event, L.Ed.2d have sions,” Congress could not meant and Supreme strongly has hinted that Court power make to fill delegate “the to law Auer does not turn on whether deference Keys law staff. v. gaps in” the to low-level agency’s position prepared an its was (7th Bаrnhart, 993-94 Cir. staff or Motor Credit its head. Ford 2003). Co., n. at 566 100 S.Ct. 790. U.S. short, is, why agen There no doctrine that turns on reason A deference cy at the re particularly one filed a brief was filed United whether brief— quest of a court—becomes less authorita a Supreme ap- or court of States Court tive filed with based in because a court it. An “inferi- peals has little commend Const, Cincinnati, rather than one based in Ohio court, Ill art. appellate or” U.S. Washington, D.C. reasons, more, 1, just many not has agency’s interpretation of one to learn Second, majority that the suggests resolving regulations in the course its deference TRRO does not deserve Auer private parties be- dispute a between two rule, interpretive not a because it is it issues decision rather than after. fore disagree major- legislative one. I with the perfectly good example. This case is and ity’s characterization of the TRRO complex, and regulations are intricate rules do suggestion interpretive for the as a result we called views FCC had a deserve Auer deference. The in order understand how the the FCC period formal notice-and-comment before regulations construed its con- agency issuing the the TRRO missing something we of amend- by adopting pages make sure were not cludes seven may process. Regulations. Circuit ments of Federal The Seventh Code ¶¶ 18-19, 239-251, A, that, App’x right court of not be See TRRO pro- of fact App’x take a B. The TRRO agenсy position invites an appeals case, mulgates the version of C.F.R. more given expect nothing in a can 392 Auer, 51.319(e)(2)(i) 463, majority quotes.

§ that the it wants. 519 117 S.Ct. U.S. 2677, 2682; Maj. Op. at 376- That applies See TRRO at 905. rationale with extra interpretive All the TRRO is agency 77. of this confirms that force to rules: An legislative Vigil, wipe rule. See Lincoln v. interpretive could amend its rule and 2024, 195-196, 182, 124 U.S. 113 S.Ct. 508 with- interpretation court’s off board (1993); Francis Health L.Ed.2d 101 St. delay out even the of notice-and-comment (6th Shalala, Ctr. v. 205 F.3d 949 Care rulemaking. Cir.2000) (“[I]f by agency its action the analysis, interpre- In the final the FCC’s ..., new rule is

intends to create law reasonably tation respects words its properly to be a legislative considered requires and Auer re- regulations us to rule.”). interpretation. spect majority Perhaps majority means seeing differently, it I respectfully dissent. ¶¶ 136-40 of the do not TRRO deserve paragraphs deference because those

part general the “concise statement” of purpose,”

the TRRO’s “basis and 5 U.S.C. 553(c), not amendments ‍‌‌​‌​‌‌‌‌‌‌‌​‌​‌​​‌​​​​‌​​​‌​​​‌‌​‌​‌​‌‌‌​‌​​‌‌‌‍to the federal (“[T]he Maj. Op. n.

code. See at 375 ”). ‘regulation.’

TRRO ... is ... not a true

I reading am unaware court such a Angela WRIGHT-HINES, so, into line Auer. No one has I done Plaintiff-Appellant, “[cjourts believe, Congress because ‘regulation’ treat the terms and ‘rule’ as v. interchangeable,” Treasury Employ Nat’l COMMISSIONER OF SOCIAL Weise, Union ees v. SECURITY, Defendant- (D.C.Cir.1996), general and “concise state Appellee. rule, part ments” are see 5 U.S.C. 553(c); Lincoln, 195-96, U.S. No. 08-5830. 2024. S.Ct. Justice concurrence in Scalia’s of Appeals, United States Court

Coeur not to contrary. Alaska is Sixth Circuit. Alaska, Coeur Inc. v. Se. Alaska Conserva — Council, -, tion U.S. 129 S.Ct. Submitted: Jan. 2010. 2458, 2479, 174 L.Ed.2d (noting courts Decided and Filed: Feb. defer under Auer “to an agency’s interpretation regu ambiguous

lation.”). Justice Scalia distinguish was

ing regulations statutes, between

between of a legislative sections rule. See

id.

But interpre- whether the is an TRRO legislative

tive or rule is the point. beside generally agency’s

We defer inter-

pretation of its own rules because impose little

“make[s] sense” to our inter-

pretation agency on the remains (largely)

free rewrite the rule however

Case Details

Case Name: Michigan Bell Telephone Co. v. Covad Communications Co.

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Feb 23, 2010

Citation: 597 F.3d 370

Docket Number: 07-2469, 07-2473

Court Abbreviation: 6th Cir.