Opposition Brief — Pennsylvania Public Utility Commission v. MCI Telecommunications and Pennsylvania Public Utility Commission v. MCI Worldcom Network Services, Inc.

; A oe ys US. |

No. 01-1477 JUN 2 2002

er emer ermemmertn erinte ce aneest

IN THE |_ OFFICE OF THE CLERK |

Supreme Court of the Gnited States

PENNSYLVANIA PUBLIC UTILITY COMMISSION, et al.,

Petitioners,

Vv. ‘

MCI TELECOMMUNICATIONS CORPORATION, et al.,

Respondents.

PENNSYLVANIA PUBLIC UTILITY COMMISSION, et al.,

Petitioners,

Vv.

MCI WORLDCOM NETWORK SERVICES, INC., et al.,

Respondents.

On Petitions for Writs of Certiorari to the

United States Court of Appeals

for the Third Circuit

BRIEF IN OPPOSITION OF RESPONDENTS

MCI WORLDCOM NETWORK SERVICES, INC., AND

MCIMETRO ACCESS TRANSMISSION SERVICES LLC

THOMAS F. O’NEIL III PAUL M. SMITH *

WILLIAM SINGLE, IV MICHAEL B,. DESANCTIS

JEFFREY A. RACKOW LARA M. FLINT

WORLDCOM, INC. JENNER & BLOCK, LLC

1133 19th Street, N.W. 601 13th Street, N.W.

Washington, D.C. 20036 Washington, D.C. 20005

(202) 736-6933 (202) 639-6000

* Counsel of Record

Counsel for Respondents MCI WORLDCOM Network Services, Inc. and

MCImetro Access Transmission Services LLC

June 7, 2002

CAL SO IEA CL LAS SLE OEE INT LN. ALA ER FINO LATRINES ITT

WiSONn-EPES PRINTING Co., INC. — (202) 789-0096 -— WASHINGTON, D. C. 20001

~~.

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QUESTIONS PRESENTED

Whether a state utility commission’s acceptance of

Congress’s invitation to arbitrate and approve terms tor

interconnection agreements under the Telecommunications

Act of 1996 constitutes a waiver of the State’s Eleventh

Amendment immunity where such approval

determinations are reviewable exclusively in federal court.

‘Whether this Court’s definitive reasoning in Verizon

Maryland Inc. v. Public Service Commission of Maryland,

122 S. Ct. 1753 (2002), that the doctrine of Ex parte

Young applies in an official capacity action seeking

prospective injunctive relief against state public utility

commissioners for alleged ongoing violations of federal

law, is dispositive in this official capacity suit for

prospective injunctive relief against state public utility

commissioners for alleged ongoing violations of the

Telecommunications Act of 1996 and the FCC’s

implementing regulations. 7

Whether a federal court reviewing a state utility

commission’s interpretation of the _ federal

Telecommunications Act of 1996 exercises de novo review

or whether such interpretations are entitled to deference.

il

RULE 29.6 STATEMENT

Pursuant to Rule 29.6 of the Rules of this Court,

respondents MCI WORLDCOM Network Services, Inc., and

MCImetro Access Transmission Services LLC state as follows:

MCI WORLDCOM Network Services, Inc. (formerly

known as MCI Telecommunications Corp.) and MCImetro

Access Transmission Services LLC (successor to MCImetro

Access Transmission Services, Inc.) are both wholly owned

subsidiaries of WorldCom, Inc. WorldCom, Inc., is a Georgia

corporation that, through its wholly owned subsidiaries,

provides local, long-distance and other telecommunications

services domestically and internationally. WorldCom, Inc., is

a publicly traded company on the NASDAQ National Market

under the symbols “WCOM” and “MCIT.”

WorldCom, Inc., has no parent companies. No publicly

held company owns 10 percent or more of WorldCom, Inc.’s

stock. WorldCom, Inc., owns controlling interests in Embratel

Participacoes, S.A., and Digex, Incorporated, both of which

issue shares to the public.

+ iat sd : : in . _

TABLE OF CONTENTS

Page

eR ee i

Pe Sa RP a se va dh cuca ea cunncveeses il

HERB PS LEMOS oc ccc ccs cececceses iv

rg Ra i See ee ep ee l

l. The Statutory Scheme .................... 2

3 Proceedings Before the PUC and

Ee ee ee +

a Court of Appeals Decisions ............... 7

4. The Verizon Maryland Decision ........... 1]

REASONS FOR DENYING THE WRIT ............. 12

I. THERE IS NO REASON FOR THIS COURT

TO REVIEW THE THIRD CIRCUIT’S

CORRECT REJECTION OF THE PUC’S

ASSERTION OF ELEVENTH AMENDMENT

SU 8 oak 70 ea WS 64 Tn ss sa VEN Ses 13

A. ele on es ¢ aaa Sind wkeu 14

B. ea ee ne 17

Il. THE STANDARD OF REVIEW ISSUE DOES

NOT WARRANT REVIEW BY THIS COURT. .... 20

PION, 90550 24 WG 54a Abd ocd 'ok s kowlks eo eee s 22

iv

TABLE OF AUTHORITIES

Page

CASES

AMISUB (PSL), Inc. v. Colorado Department

of Social Services, 879 F.2d 789 (10th Cir.

ROE ened ah Pah HPO ek eNO We a 01 01a 21

AT&T Communications of the South Central

States, Inc. v. BellSouth Telecommunications,

Inc., 20 F. Supp. 2d 1097 (E.D. Ky. 1998) ......... 20

AT&T Communications v. BellSouth

Telecommunications, Inc., 238 F.3d 636

COD Se rn his a a ok Be SE 16, 18

AT&T Corp. v. Iowa Utilities Board,

Fae Ue ND ch okra ne can kan cs 2, 3, 4, 15, 21

Bell Atlantic-Delaware, Inc. v. McMahon,

80 F. Supp. 2d 218 (D. Del. 2000) ............... 18

Bell Atlantic Maryland, Inc. v. MCI WorldCom,

Inc., 240 F.3d 279 (4th Cir. 2001), vacated

sub nom. Verizon Maryland, Inc. v. Public

Service Commission of Maryland, 122 S. Ct.

en. Been yy Deen) wera earner res 16, 19

Chevron USA, Inc. v. National Resources Defense

Council, Inc., 467 U.S. 837 (1984) ................ 9

College Savings Bank v. Florida Prepaid

Postsecondary Education Expense Board,

Fae Se I CER Aarne s hada es 8

FERC v. Mississippi, 456 U.S. 742 (1982) .......... 15

GTE North, Inc. v. Strand, 209 F.3d 909 (6th Cir.),

cert denied, 331 US. 957 (0GG) 2. ccc cece cciees 19

Vv

TABLE OF AUTHORITIES - continued

Page

GTE South, Inc. v. Morrison, 199 F.3d 733

CO SR Cire Gh he 9 ON KS wa ad ba Rk 20

Global Naps, Inc. v. New England Telephone

and Telegraph Co., 156 F. Supp. 2d 72 (D. Mass.

Fc) PS eS Bye oe OTE PONT eee parE 20

Idaho v. Coeur d'Alene Tribe, 521 U.S. 261

CEMPED Gish iss in Ais che CR ee 8, 15, 15

Lapides v. Board of Regents of the University

System of Georgia, 122 S. Ct. 1640 (2002) ........ 19

Louisiana Public Service Commission v. FCC,

oe et Et PE Pee ou ne ier wr ey 2

MCI v. Bell Atlantic, 36 F. Supp. 2d 419 (D.D.C.

bg BRO Grain re LA PRO gery Us Sart: Are rier oe Gees mean 20

MCI Telecommunications Corp. v. BellSouth

Telecommunications Corp., 112 F. Supp. 2d

eee ee er errr rer 20

MCI Telecommunications Corp. v. BellSouth

Telecommunications, Inc., 9 F. Supp. 2d 766

(FD. EM SOG eid 6 Pea SO ES ee 18

MCI Telecommunications Corp. v. Illinois

Commerce Commission, 168 F.3d 315 (7th

Cir.), amended, 183 F.3d 558 (7th Cir. 1999),

modified on reh'g, 222 F.3d 323 (7th Cir. 2000),

cert. denied, 531 U.S. 1132 (2001) ............ 16, 18

MCI Telecommunications Corp. v. New York

Telephone Co., 134 F. Supp. 2d 490 (N.D.N.Y.

vi

TABLE OF AUTHORITIES - continued

Page

MCI Telecommunications Corp. v. Public Service

Commission of Utah, 216 F.3d 929 (10th Cir.

2000), cert. denied, 531 U.S. 1183 (2001) ......... 18

Mathias v. WorldCom Technologies, Inc.,

ve $ Be Ry [s.r err re er 11,12

Michigan Bell Telephone Co. v. Climax Telephone

Co., 121 F. Supp. 2d 1104 (W.D. Mich. 2000) ... 18, 20

Michigan Bell Telephone Co. v. Climax Telephone

Co., 202 F.3d 862 (6th Cir.), cert. denied,

$31 US: SORGGeeee os v ccavivvexw Peweurecs 8, 16, 19

The Monrosa v. Carbon Black Export, Inc.,

SID UR. CEP ERGSSD 6. cn k dcaekseceetecsseseventa 17

Orthopaedic Hospital v. Belshe, 103 F.3d 1491

te ®t BL Perr Pree cry ree res oy a err ae 21

Puerto Rico Aqueduct and Sewer Authority v.

Metcalf & Eddy, Inc., 506 U.S. 139 (1993) .......... 5

Seminole Tribe of Florida v. Florida, 517 U.S. 44

(CEDOD 4.000 s006n vaecknancestaetieas eee 8

Southwestern Bell Telephone Co. v. Public Utility

Commission of Texas, 208 F.3d 475 (Sth Cir.

FPP AY re Bk aioe ep sapped Yi 20

Southwestern Bell Telephone Co. v. AT&T

Communications of the Southwest, Inc., No.

A 97-CA-132 SS, 1998 WL 657717 (W.D. Tex.

Ray, Sh j TPO nos Belin 64d bck eee eceue 20

Vii

TABLE OF AUTHORITIES - continued

Page

Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379

hi PEAS nya, Oe er pce Spey te ae PE aR dea Shape, Ea 15

Turner v. Perales, 869 F.2d 140 (2d Cir. 1989) ....... 21

US West Communications, Inc. v. MFS Intelenet,

Inc., 35 F. Supp. 2d 1221 (D. Or. 1998) ........... 18

US West Communications, Inc. v. Reinbold, Civil

No. Al-97-25, 1997 U.S. Dist. LEXIS 22606

SPO EEE bk 6 obs Fob edad bos bos be 18

US West Communications v. MFS Intelenet, Inc.,

193 F.3d 1112 (9th Cir. 1999), cert.denied,

Rs CEE 6b cd oach uk cae sud edevecur 20

US West Communications v. TCG Seattle,

971 F. Supp. 1365 (W.D. Wash. 1997) ............ 18

Verizon Communications Inc. v. FCC, 122 S. Ct.

of. EEE fr. eee Core ee eee ae 2

Verizon Maryland Inc. v. Public Service

Commission of Maryland, 122 S. Ct. 1753

EE eee va Uwe aM ae as Fae a Ke ku passim

STATUTES

ee eee EE Os FE ve ede ee ORES Ses ae ks 4

Ee ee aa Vhs ek kath o4.awedebhe es 2

sla coe Eo BRAS E epee ay ara ra a 3

a MRE EEE 6h vv 5 x'ow eae Kéa bie dcciees y ie

ie CE nce ans ciao cece su Woe abks 3

Vili

TABLE OF AUTHORITIES - continued

Page

MF eee EE 6 05k Wu pune bee ened Sh can pee 3

Spt take | | eae are re ems vr a

We Ria ee 8k Cad see osedk pe cews verses 3

BE Ce EE aS oe ees a Weck Siegen PARR? 3

ey Se I ook ho xa So Ga AR POS TE AEEES es 3

OF Eee Ec a chk oe bn da codeerss easbectses 3

47 U.S.C. § 252(€)(4) «0.0 e cece eee eee ees 4,15, 16

OT UDA, Sr iin Boob xe shen eexekiemn tea 3,4

rete Fen & | Rare rea peer 4,19

OF as hd Pics bed epee naan Ocean 2

LEGISLATIVE MATERIALS

FLR. Rem. No. 104-206 C4999) . 2. ccc ec siene es wee 2

STATEMENT

Respondents MCI WORLDCOM Network Services, Inc.,

and MClImetro Access Transmission Services LLC

(collectively, “WorldCom”), through counsel, respectfully

submit this brief in opposition to the petition for certiorari filed

by the Pennsylvania Public Utility Commission and its

Commissioners (collectively, the “PUC’’). Petitioners seek

review of the decision of the United States Court of Appeals for

the Third Circuit (1) rejecting, under Ex parte Young and

principles of waiver, the PUC’s assertion of Eleventh ©

Amendment immunity from suit challenging its approval of

terms for interconnection agreements under the

Telecommunications Act of 1996 (“the Act” or “the 1996

Act”); and (2) exercising de novo review of the PUC’s

interpretation of the federal Act.

Recently, this Court unanimously held that the doctrine of

Ex parte Young permits suit in federal court against state public

utility commissioners for prospective injunctive relief from the

commissioners’ alleged ongoing violations of the 1996 Act.

See Verizon Mad. Inc. v. Public Serv. Comm’n of Md., 122 S. Ct.

1753, 1761 (2002). Recognizing the applicability of Ex parte

Young to claims under the 1996 Act, the Court then declined to

reach, as unnecessary, the question whether the state

commissioners also had waived their Eleventh Amendment

immunity by voluntarily participating in the administration of

the Act. /d. at 1760. That decision fully resolves the Ex parte

Young issue in this appeal and confirms that the waiver issue —

on which there is no disagreement among the decisions of the

courts of appeals — is not independently worthy of this Court’s

review. And because the Third Circuit’s uncontroversial

decision with respect to the standard of review is consistent

with the decisions of every other court of appeals to have ruled

on the issue, this Court should deny the PUC’s petition for

certiorari.

2

1. The Statutory Scheme

The 1996 Act fundamentally changed the regulation of the

local telephone industry throughout the country. In the

Communications Act of 1934, Congress left regulation of

intrastate telecommunications primarily to the states. See 47

U.S.C. § 152(b); Louisiana Pub. Serv. Comm'n v. FCC, 476

U.S. 355 (1986). The states, in turn, historically granted

exclusive franchises to incumbent local telephone companies

like Verizon. See AT&T Corp. v. lowa Utils. Bd., 525 U.S.

366, 371 (1999); H.R. Rep. No. 104-204, at 49 (1995).

Congress enacted the 1996 Act for the express purpose of

ending this monopoly regime and promoting a competitive

market for local telephone service. See Verizon

Communications Inc. v. FCC, 122 S. Ct. 1646, 1654 (2002);

AT&T Corp., 525 U.S. at 371. Toward that end, Congress

altered the prior balance of federal and state regulatory

authority in the area of local telecommunications. Verizon

Communications, 122 S.Ct. at 1660-61; AT&T Corp., 525 US.

at 371. Specifically, the 1996 Act partially supplants state

regulation and imposes a new set of substantive federal

standards and procedures governing interconnection between

incumbent local companies and potential competitors. AT&T

Corp., 525 U.S. at 371-73.

In the Act, Congress expressly preempted all state laws

erecting barriers to entry into telecommunications markets. 47

U.S.C. § 253(a). Congress then created three specified routes

for competitive entry into local telephone markets to speed the

introduction of competition. Verizon Communications, 122 S.

Ct. at 1662. First, the Act requires incumbent local carriers to

“interconnect” their networks with those of new entrants,

thereby enabling subscribers connected to different networks to

call each other. 47 U.S.C. § 251(c)(2). Second, the Act

requires incumbents to lease elements of their networks to new

3

entrants on an unbundled basis. Jd. § 251(c)(3). Third, the Act

requires incumbents to sell new entrants complete services on

a wholesale basis for resale to retail customers. Jd. § 251(c)(4).

In each case, Congress prescribed specific federal standards

governing the relationships between carriers, id. §§ 251(c)(2)-

(4), 252(d); AT&T Corp., 525 U.S. at 371-73, and vested the

Federal Communications Commission (“FCC”) with the

authority to make general rules and regulations to implement

the substantive federal standards created by the Act. AT&T

Corp., 525 U.S. at 377-84 & n.5; 47 U.S.C. § 201(b).

Under the Act, a new entrant that wishes to enter a local

telephone market through any one or combination of these three

routes must contact the incumbent carrier to negotiate the terms

of interconnection. See 47 U.S.C. § 252(a)(1). If the two

carriers cannot reach an agreement, they must ask the

governing state commission to conduct an “arbitration” to

resolve disputed issues. /d. § 252(b)(1). State commissions

can also hold “generic” proceedings to set rates or establish

other terms that satisfy the new federal substantive standards

and that an incumbent carrier must offer to various new

entrants. Finally, the results of the negotiation and arbitration ©

process are memorialized in an “interconnection agreement”

between the carriers, which is then submitted for approval to

the state commission. Jd. § 252(e).

The Act, however, in no way requires state commissions

_ to arbitrate and approve agreements submitted to them. Ifa

state commission declines to participate, the FCC will assume

that function. 47 U.S.C. § 252(e)(5). In the spint of

cooperative federalism, then, Congress vested the FCC with the

primary rulemaking authority to implement the federal

standards created by the Act, AT&T Corp., 525 U.S. at 377-84

& n.5; 47 U.S.C. §§ 201(b), 251(d)(1), while at the same time,

carving out a new, voluntary role for states in approving terms

4

for interconnection agreements, 47 U.S.C. § 252(e)(5).

Whether rendered by a state commission or the FCC,

agency determinations regarding the terms of interconnection

agreements are subject to review in federal court for

compliance with the Act. If the FCC has acted in lieu of a state

commission, its determinations are reviewed by a federal court

of appeals under the Hobbs Act. See 28 U.S.C. § 2342(1). If

a state commission elects to participate in the Act’s

implementation by arbitrating and approving terms for

interconnection agreements, then under section 252(e)(6) of the

Act, entitled “Review of State commission actions,” “any party

aggrieved . . . may bring an action in an appropriate Federal

district court to determine whether the agreement or statement

meets the requirements of section[s] 251 . . . and [252].” 47

U.S.C. § 252(e)(6); see also Verizon Md. Inc., 122 S. Ct. at

1758; AT&T Corp., 525 US. at 378 n.6 (“there is no doubt...

that if the federal courts believe a state commission is not

regulating in accordance with federal policy they may bring it

to heel’). Such review in federal district court, moreover, is

exclusive, as the Act expressly states that “[n]o State court shall

have jurisdiction to review the action of a State commission in

approving or rejecting an agreement under this section.” 47

U.S.C. § 252(e)(4); see also Verizon Mad. Inc., 122 S. Ct. at

1759.

2. Proceedings Before the PUC and the District

Courts

The Middle District Proceedings. In 1996, WorldCom and

AT&T separately began negotiating the terms of

interconnection agreements with incumbent local service

provider Verizon Pennsylvania Inc. (“Verizon”) (then known

as Bell Atlantic-Pennsylvania, Inc.). When the negotiations

reached an impasse, WorldCom and AT&T filed petitions with

the PUC requesting that it arbitrate the differences arising in the

meas

5

course of the negotiations with Verizon. The PUC accepted the

invitation, conducted arbitration proceedings, and issued orders

in which it resolved a number of open issues. It then conducted

a generic proceeding to set permanent rates at which all

competitors would be permitted to lease Verizon’s unbundled

network elements. After directing the parties to incorporate

those new rates into their respective interconnection

agreements, the PUC approved the WorldCom-Verizon

agreement in November 1997.

Thereafter, WorldCom, AT&T and Verizon all challenged

various aspects of the PUC’s determinations in the United

States District Court for the Middle District of Pennsylvania,

pursuant to section 252(e)(6) of the Act and 28 U.S.C. § 1331.

The PUC then filed a motion to dismiss, asserting immunity

under the Eleventh Amendment and challenging the

constitutionality of the 1996 Act under the Tenth Amendment

and the Commerce Clause. That motion was denied in full.

Pet. Supp. App. sa-27-sa-28. With respect to the PUC’s

assertion of Eleventh Amendment immunity, the court found

that the suit for prospective injunctive relief against the state

commissioners was properly brought under the doctrine of Ex

parte Young, and that the PUC voluntarily accepted the offer to

participate in the new federal system set forth in the Act in

exchange for waiving its immunity to federal court jurisdiction.

Id. at sa-34-sa-35.'

Rather than take an immediate interlocutory appeal of that

denial, as was its right, see Puerto Rico Aqueduct and Sewer—

Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 143 (1993),

the PUC instead litigated the merits of the parties’ claims in the

district court. On June 30, 2000, the district court issued a final

'The district court adopted the reasoning and conclusions of the Magistrate

Judge’s recommendations on this issue. See Pet. Supp. App. sa-29-sa-36.

6

order disposing of all claims on their merits. Pet. Supp. App.

sa-3-sa-26. In doing so, the court exercised de novo review

over the PUC’s legal determinations under the Act and refused

to afford those determinations the deference that might

otherwise be due the determinations of a federal agency like the

FCC.

The PUC subsequently appealed the district court’s denial

of its claim of Eleventh Amendment immunity and various

merits determinations to the United States Court of Appeals for

the Third Circuit. It did not appeal the district court’s denial of

its motion to dismiss on Tenth Amendment and Commerce

Clause grounds.

The Eastern District Proceedings. In 1998, while judicial

review of the initial arbitration decision was pending in the

Middle District, the PUC initiated a comprehensive review of

the terms by which Verizon was providing access to its network

under the 1996 Act. After Verizon and the new entrants filed

competing petitions in what became known as the “Global

Proceeding,” the PUC in September 1999 issued the “Global

Order” and directed that its many determinations be

incorporated into interconnection agreements between Verizon

and all competing carriers. Among other things, the Global

Order somewhat reduced the rates at which Verizon was

required to lease its network elements to competitors.

In response, Verizon filed a complaint in the United States

District Court for the Eastern District of Pennsylvania on

October 29, 1999, pursuant to 47 U.S.C. § 252(e)(6) and 28

U.S.C. § 1331. Verizon contended that the PUC’s pricing

determinations in the Global Order were inconsistent with the

1996 Act and the FCC’s implementing regulations. Before the

PUC filed an answer to Verizon’s federal court complaint,

however, the PUC, Verizon, WorldCom, AT&T and other

parties to the Global Proceeding agreed to commence

7

settlement negotiations and to stay all judicial challenges to the

Global Order. Those negotiations proved unsuccessful. Thus,

on February 8, 2000, WorldCom filed a motion to intervene in

the federal action, along with its proposed answer, counterclaim

and cross-claim challenging the lawfulness of the rates set by

the PUC in the Global Order pursuant to 47 U.S.C. § 252(e)(6)

and 28 U.S.C. § 1331. WorldCom’s motion for intervention

was granted on March 2, 2000.

On May 18, 2000, the PUC filed a motion to dismiss the

various parties’ claims and cross-claims. The PUC alleged,

inter alia, that the PUC and the individual commissioners were

immune from suit in federal court under the Eleventh

Amendment. A group of Pennsylvania State Senators who had

participated in the Global Proceeding and intervened in federal

court moved for judgment on the pleadings on the same

grounds. The district court denied both motions to dismiss in

full. Like its counterpart in the Middle District, the Eastern

District court held that the PUC had waived its Eleventh

Amendment immunity by voluntarily participating in the

regulatory scheme designed by Congress under the 1996 Act,

and that, in any event, suit against the individual PUC

Commissioners was proper under the doctrine of Ex parte

Young. Pet. Supp. App. sa-46-sa-56. The PUC and the

Senators then filed interlocutory appeals in the Third Circuit.’

3. Court of Appeals Decisions

In two decisions issued the same day, a unanimous panel

of the Third Circuit affirmed the two district courts’ rejection

*Neither the PUC nor the Senators raised a Tenth Amendment or Commerce

Clause claim before either the Eastern District court or the court of appeals.

8

of the PUC’s assertion of Eleventh Amendment immunity.’

Pet. App. 12a-33a, 48a-53a, 60a, 66a. That court held that the

two suits were proper Ex parte Young actions, and that nothing

in the Act precluded reliance on Zx parte Young as a basis for

federal court review. Jd. at 30a. It thus expressly agreed with

the Sixth Circuit’s statement in Michigan Bell Telephone Co.

v. Climax Telephone Co., 202 F.3d 862, 867 (6th Cir.), cert.

denied, 531 U.S. 816 (2000), that a lawsuit challenging a state

commission’s approval of an interconnection agreement is “‘a

straightforward Ex parte Young case.’” Pet. App. 30a. The

court explained that Ex parte Young continues to apply “any

time a plaintiff seeks prospective relief against individual state

officers from an ongoing violation of federal law,” as the

carriers sought in the cases below. /d. at 3la-32a. It also

rejected the PUC’s contentions that either Seminole Tribe of

Florida v. Florida, 517 U.S. 44 (1996), or Idaho v. Coeur

d’Alene Tribe, 521 U.S. 261 (1997), imposed any limitations on

the application of Ex parte Young to suits under the 1996 Act.

Pet. App. 32a-33a.

In addition, relying on this Court’s decision in College

Savings Bank v. Florida Prepaid Postsecondary Education

Expense Board, 527 U.S. 666 (1999), the Third Circuit held

that, although Congress could not abrogate Pennsylvania’s

sovereign immunity, Pet. App. 13a, Pennsylvania consented to

being subject to suit in federal court when it voluntarily chose

to participate in the Act’s regulatory scheme. Pet. App. 23a

(“the submission to suit in federal court, provided for in

§ 252(e)(6), is valid as a waiver”). Noting the exclusivity of

federal court review under the Act, Pet. App. 28a (citing 47

U.S.C. § 252(e)(4)), the court explained that participation in the

*One member of the panel dissented on a merits issue not relevant to the

instant petition. Pet. App. 53a-54a.

9

Act’s regulatory scheme was a gratuity that Congress granted

to states expressly conditioned on their willingness to waive

their immunity to suit in federal court. Jd. at 24a-25a; se also

id. at 28a (“The statutory language places the state utility

commission on notice that, by choosing to act on an

interconnection agreement and to make a decision as to its

legality, it submits itself to the jurisdiction of the federal

courts.”); id. at 24a (Congress “validly terminated the states’

role in regulating local telephone competition” and then

“permitted the states to resume a role in that process” — thus

creating a “congressionally bestowed gratuity”).‘

Finally, the Third Circuit affirmed the Middle District

court’s exercise of de novo review over the PUC’s legal

interpretations of the 1996 Act. /d. at 34a-36a. In so holding,

the court rejected the PUC’s attempt to carve out an exception

to the general rule that the deferential standard of review under

Chevron USA, Inc. v. National Resources Defense Council,

Inc., 467 U.S. 837, 843-44 (1984), applies only to federal

agencies and not state commissions.

As the court cogently explained:

[D]eference is accorded to the interpretations of

federal statutes by federal administrative agencies, not

to interpretations by state agencies. See GTE South,

199 F.3d at 745 (quoting Orthopaedic Hosp. v.

Belshe, 103 F.3d 1491, 1495-96 (9th Cir. 1997)).

*x * *

Under the Act, there has been no delegation to

state commissions of the power to fill gaps in the

‘The Third Circuit did not address the Tenth Amendment or Commerce

Clause because the PUC did not raise Tenth Amendment or Commerce

Clause arguments before that court. See Pet. App. 10a n.1.

10

statute through binding rulemaking. See [United

States v.] Mead, 121 S. Ct. [2164,] 2171 [(2001)}.

The power to promulgate binding regulations to

implement the requirements of the Act and to fill

statutory gaps was granted to the FCC, see 47 U.S.C.

§ 251(d)(1), and those regulations are entitled to

deference. See Mead, 121 S. Ct. at 2172 (stating that

a good indicator of delegation meriting Chevron

deference is an express congressional authorization

for an agency to engage in the rulemaking

process). ... State commissions have been given

only the power to resolve issues in arbitration and to

approve or reject interconnection agreements, not to

issue rulings having the force of law beyond the

relationship of the parties to the agreement.

In fact, deference to the state commissions

would often be impossible, given the explicit

delegation of rulemaking authority to the FCC in

§ 251(d)(1). The interconnection agreement must

comply with the Act and with FCC regulations; if the

approved agreement, containing the state

commission’s interpretations of the law, conflicts with

the legal interpretations in the FCC regulations, the

FCC interpretation must control under the Supremacy

Clause and under the plain language of the Act. If,

therefore, the PUC’s interpretation conflicts with that

of the FCC, the PUC’s determination must be struck

down.

* * *

We will, therefore, review any PUC legal

interpretations contained in the arbitration and

interconnection agreement de novo.

1]

Pet. App. 34a-36a.

4. The Verizon Maryland Decision

In Verizon Maryland, Verizon Maryland Inc. challenged

the lawfulness of a decision of the Maryland Public Service

Commission (“MPSC”) interpreting and enforcing the

reciprocal compensation provisions of an interconnection

agreement previously approved under the 1996 Act.

Specifically, Verizon alleged, pursuant to 47 U.S.C. § 252(e)(6)

and 28 U.S.C. § 1331, that the MPSC’s decision constituted an

ongoing violation of the 1996 Act and the FCC’s implementing

regulations. In response, the MPSC claimed that the federal

courts lacked subject matter jurisdiction over Verizon’s

challenge to the MPSC’s enforcement determination, and that

the MPSC and its commissioners enjoyed Eleventh

Amendment immunity from suit in federal court.

On May 20, 2002, this Court unanimously rejected voth of

the MPSC’s claims. First, the Court determined that Verizon’s

complaint stated a federal claim cognizable under 28 U.S.C.

§ 1331, regardless of whether Section 252(e)(6) of the 1996

Act might also bestow jurisdiction on the federal courts.

Verizon Md. Inc., 122 S. Ct. at 1759.

The Court then held that Verizon’s suit seeking

‘ prospective injunctive relief for alleged ongoing violations of

the 1996 Act “may proceed against the individual [MPSC]

commissioners in their official capacities, pursuant to the

doctrine of Ex parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L.

Ed. 714 (1908).” Jd. at 1760.° The Court thus rejected the

‘Oral argument in Verizon Maryland was consolidated with argument in

Mathias v. WorldCom Technologies, Inc., No. 00-878. This Court

dismissed the writ of certiorari in Mathias as improvidently granted on the

day that it issued the Verizon Maryland decision. Mathias v. WorldCom

on”

12

Fourth Circuit's reasoning that Ex parte Young did not apply

because the commission’s order likely was consistent with

federal law. /d. at 1760-61. As the Court reaffirmed, it is

enough that the plaintiff's complaint merely allege a non-

frivolous violation of federal law; “the inquiry into whether suit

lies under Ex parte Young does not include an analysis of the

merits.” /d. (citing /daho v. Coeur d'Alene Tribe of Idaho, 521

U.S. 261 (1997)). In addition, the Court refused to impose any

independent limitation, under the principles enunciated in

Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), on

the application of Ex parte Young to claims under the 1996 Act.

It explained that the 1996 Act does not create the type of

limited remedial scheme that was at issue in Seminole Tribe,

and therefore does not demonstrate any intent to foreclose Ex

parte Young jurisdiction. 122 S. Ct. at 1761.

Finally, because it found that Verizon’s suit could proceed

pursuant to Ex parte Young, the Court found it unnecessary to

address the question of whether the state commission had

waived its Eleventh Amendment immunity by voluntarily

participating in the Act’s regulatory scheme. /d. at 1760.

REASONS FOR DENYING THE WRIT

The PUC’s petition should be denied because this Court

has already determined in Verizon Maryland that suits against

state public utility commissioners for prospective relief from

ongoing violations of the 1996 Act are cognizable in federal

court under the doctrine of Ex parte Young. Although that case

arose in the context of a challenge to a state commission’s

enforcement of a previously approved interconnection

agreement, and this case presents a challenge to the PUC’s

approval of terms for interconnection agreements in the first

Techs., Inc., 122 S. Ct. 1780 (2002).

13

instance, the approval context presents the easier, more

straightforward case. A fortiori, Verizon Maryland is

dispositive. And, as the Court explained in Verizon Maryland,

resolution of the Ex parte Young issue obviates the need for

this Court to reach the Eleventh Amendment waiver question.

Moreover, neither of the immunity questions presented

here has divided the courts of appeals. The Third Circuit’s

decisions on the Ex parte Young and waiver issues are

consistent with the rulings of every other court of appeals that

has ruled on those issues in the approval context. This Court

has repeatedly denied petitions for certiorari raising Eleventh

Amendment arguments in approval cases, see infra, note 10

and p. 18, and in light of Verizon Maryland, there is even more

reason for the Court to do so again here.

Finally, the Third Circuit’s exercise of de novo review

over the PUC’s interpretation and application of the 1996 Act

is consistent with the decisions of every other court of appeals

to reach the issue and is not independently certworthy. Federal

courts uniformly have exercised plenary review over a state

agency’s interpretation of any federal statute, including the

1996 Act. There certainly is no reason for the Court to grant

review on this entirely uncontroversial issue.

I. THERE IS NO REASON FOR THIS COURT TO

REVIEW THE THIRD CIRCUIT’S CORRECT

REJECTION OF THE PUC’S ASSERTION OF

ELEVENTH AMENDMENT IMMUNITY.

In Verizon Maryland, this Court had no difficulty

unanimously holding that, for claims seeking prospective relief

against ongoing violations of the 1996 Act, “the doctrine of Ex

parte Young peimits [a carrier’s] suit to go forward against . . .

state commissioners in their official capacities.” Verizon Md.

Inc., 122 S. Ct. at 1761. That decision renders review of both

14

Eleventh Amendment issues presented here unnecessary.

A. Ex parte Young

In the wake of Verizon Maryland, it is now clear that, with

respect to the application of Ex parte Young, there is nothing

unique about the 1996 Act. As with virtually every other

federal statute, suits against state commissioners under the

1996 Act require only the “‘straightforward inquiry into

whether the complaint alleges an ongoing violation of federal

law and seeks relief properly characterized as prospective.”

Verizon Md. Inc., 122 S. Ct. at 1760 (quoting Coeur d ‘Alene

Tribe of Idaho, 521 U.S. at 296).°

For purposes of this “straightforward” Ex parte Young

analysis, the claims for relief in this case are identical in all

material respects to the claims that were properly brought in

federal court in Verizon Maryland. As in Verizon Maryland,

the claims for relief here allege that various orders of the state

utility commissioners constitute ongoing violations of the 1996

Act and the FCC’s implementing regulations, and seek purely

prospective injunctive and declaratory relief to remedy those

violations. Compare Verizon Md. Inc., 122 S. Ct. at 1760-61,

with Pet. App. 3la-32a. Thus, after Verizon Maryland, there

can be no doubt that the Third Circuit properly held that the

parties’ claims here are cognizable in federal court under the

doctrine of Ex parte Young, and the PUC’s petition should be

denied.

Indeed, the only manner in which this case differs from

*In doing so, the Court rejected the application of the limiting principle

articulated in Seminole Tribe because, according to the Court, the 1996 Act

does not “‘impose upon the State a liability that is significantly more limited

than would be the liability imposed upon the state officer under Ex parte

Young.” Verizon Md. Inc., 122 S. Ct. at 1761 (quoting Seminole Tribe, 517

US. at 75-76).

15

Verizon Maryland is that this is a challenge to a state

commission approval determination whereas Verizon Maryland

was a Challenge to a state commission enforcement order. But

that makes this case only easier, not harder. For example,

unlike in Verizon Maryland, here there is no dispute that the

plaintiffs’ claims arise under section 252(e)(6) of the Act and

are within the subject matter jurisdiction of the federal courts.

Pet. at 21, 27; Pet App. at 2la-22a. Here, unlike in Verizon

Maryland, that jurisdiction is exclusive, see 47 U.S.C.

§ 252(e)(4)’; Verizon Md. Inc., 122-S. Ct. at 1759, and the

unavailability of a federal forum for the plaintiffs’ federal

claims would thus render plaintiffs wholly without a remedy at

the approval stage.* Because this case is virtually identical to

’The PUC’s passing suggestion that the Act’s exclusive jurisdiction

provision, section 252(e)(4), is unconstitutional under the Tenth Amendment

and Commerce Clause is not properly before this Court. See Pet. at 26-27.

That issue is not within the scope of the questions presented, was not

addressed by the Third Circuit, and, though soundly rejected by the Middle

District court, Pet. Supp. App. sa27-sa36, was not raised by the PUC in the

court of appeals below. The argument also lacks even a semblance of merit.

This Court has already held that Congress possessed the requisite

constitutional authority to pass the 1996 Act in the first instance, thereby

federalizing those areas of local telephone competition addressed by the Act.

See AT&T Corp., 525 U.S. at 378 n.6; FERC v. Mississippi, 456 U.S. 742,

764 (1982) (“[T]he commerce power permits Congress to pre-empt the

States entirely in the regulation of private utilities.”); Sperry v. Florida ex

rel. Florida Bar, 373 U.S. 379, 403 (1963) (the authority of Congress to

preempt state laws “is no less when the state power which it displaces would

otherwise have been exercised by the state judiciary rather than by the state

legislature”).

*To be sure, the unavailability of state court review is not a prerequisite to

the application of Ex parte Young. See Coeur d'Alene, 521 U.S, at 272.

Even where a state forum may be available (as in the enforcement context),

review in federal court under the doctrine of Ex parte Young is still

permissible. /d.; see also Verizon Md. Inc., 122 S. Ct. at 1760-61 (applying

Ex parte Young even though “it may (or may not) also be true that state

16

— indeed, easier than — Verizon Maryland, there certainly is no

reason for this Court to grant review of the Third Circuit’s

opinion, which is in all respects consistent with that decision.’

Though it is largely irrelevant now, it is nonetheless worth

noting that, contrary to the Petitioners’ suggestion, Pet. at 15-

16, every court of appeals to have addressed the issue has

agreed that Ex parte Young applies in an approval case such as

this. Indeed, five courts of appeals have explicitly held that a

federal law challenge to an approval determination of a state

commission is a “straightforward Ex parte Young case,” and

none has disagreed." In light of Verizon Maryland, there

certainly is no reason to grant review of that conclusion now.

contract law, and not federal law” applied). But where, as here (in the

approval context), state court review is preempted, see 47 U.S.C.

§ 252(e)(4), the need for federal court review under Ex parte Young of a

state actor’s interpretation and application of federal law is paramount. See

Coeur d'Alene, 521 U.S. at 271.

*The PUC’s remaining arguments, that the State here is the real party in

interest and that the state commissioners were “authorized” by Congress to

implement the 1996 Act, Pet. at 22-26, all were fully briefed to this Court

in Verizon Maryland to no avail.

"See Pet. App. 30a-33a (3d Cir.); AT&T Communications v. BellSouth

Telecommunications, Inc. , 238 F.3d 636, 647 (Sth Cir. 2001); Michigan Bell

Tel. Co. v. Climax Tel. Co., 202 F.3d 862, 867 (6th Cir.), cert. denied, 531

U.S. 816 (2000); MC/ Telecommunications Corp. v. Illinois Commerce

Comm'n, 168 F.3d 315 (7th Cir.), amended, 183 F.3d 558 (7th Cir. 1999),

modified on reh'g, 222 F.3d 323, 345 (7th Cir. 2000), cert. denied, 531 U.S.

1132 (2001); MCI Telecommunications Corp. v. Public Serv. Comm'n of

Utah, 216 F.3d 929, 939 (10th Cir. 2000), cert. denied, 531 U.S. 1183

(2001). Of course, the PUC can no longer even attempt to manufacture a

split in the circuits by relying on the Fourth Circuit’s recently vacated

decision in Bell Atlantic Maryland, Inc. vy. MCI WorldCom, Inc., 240 F.3d

279 (4th Cir. 2001), vacated sub nom. Verizon Maryland Inc. v. Public

Service Commission of Maryland, 122 S. Ct. 1753 (2002).

17

B. Waiver -

In Verizon Maryland, this Court explicitly stated that it

was unnecessary for it to decide the waiver issue because “even

absent waiver” the case could proceed in federal court under

the doctrine of Ex parte Young. Verizon Md. Inc., 122 S. Ct. at

1760. It follows that, because Ex parte Young disposes equally

of the assertion of Eleventh Amendment immunity here, the

same restraint articulated in Verizon Maryland dictates that

there is no reason to grant the PUC’s petition on the waiver

issue in this case.

Indeed, it would make little sense for this Court now to

grant review of the very same issue that it declined to reach

when that issue was squarely before-it, and fully briefed, earlier

this Term. Here, the only impact of a reversal on the waiver

question would be to require the ministerial deletion of the

Pennsylvania Commission (as a body) from the caption, and the

case still would proceed against the commissioners in their

official capacities under Ex parte Young. The Court thus

should decline to review the waiver issue at this time, which,

at least as a practical matter, remains purely academic. "'

Moreover, the Third Circuit’s ruling on the waiver issue is

consistent with the decisions of every other court of appeals

''The restraint showed in Verizon Maryland certainly is nothing new.

Where a case can be decided on a ground that is relatively simpler and less

controversial, this Court’s consistent practice is not to reach out and address

additional issues presented by the petitioner or discussed in the lower courts,

particularly where they would not affect the outcome of the case. See, e.g.,

The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 184 (1959)

(“While this Court decides questions of public importance, it decides them

in the context of meaningful litigation. Its function in resolving conflicts

among. the Courts of Appeals is judicial, not simply administrative or

managerial. Resolution [of the question before it] can await a day when the

issue is posed less abstractly.”).

18

that has resolved it. Every court of appeals to have ruled on the

waiver issue in the approval context has faithfully followed this

Court’s teachings in College Savings Bank and agreed that a

state commission that chooses to participate in the Act’s regime

does so in exchange for waiving its immunity to suit in federal

court — and this Court has consistently denied petitions for

certiorari in those cases when presented. See MCI

Telecommunications Corp. v. Illinois Commerce Comm'n, 168

F.3d 315 (7th Cir.), amended, 183 F.3d 558 (7th Cir. 1999),

modified on reh’g, 222 F.3d 323, 340-44 (7th Cir. 2000), cert.

denied, 531 U.S. 1132 (2001); MCI Telecommunications Corp.

v. Public Serv. Comm'n of Utah, 216 F.3d 929, 938-39 (10th

Cir. 20€0), cert. denied, 531 U.S. 1183 (2001).

The PUC nevertheless invokes the decisions of the Fourth

and Sixth Circuits in a transparent attempt to fabricate a split in

the circuits on this issue. Pet. at 15-16. That attempt is

unavailing for two reasons. First, in Verizon Maryland, this

Court vacated the very Fourth Circuit decision on which the

PUC relies. Verizon Md. Inc., 122 S. Ct. at 1761. Moreover,

the Fourth Circuit had held (erroneously in WorldCom’s view)

that the parties’ enforcement challenge there did not arise under

"The overwhelming majority of district courts that have ruled on the waiver

question likewise have held that states voluntarily waive their sovereign

immunity when they voluntarily participate in the Act’s regulatory scheme.

See, e.g., MCI Telecommunications Corp. v. New York Tel. Co., 134 F.

Supp. 2d 490 (N.D.N.Y. 2001); Michigan Beil Tel. Co. v. Climax Tel. Co.,

121 F. Supp. 2d 1104 (W.D. Mich. 2000); Bell Atlantic-Delaware, Inc. v.

McMahon, 80 F. Supp. 2d 218 (D. Del. 2000); US West Communications,

Inc. v. MFS Intelenet, Inc., 35 F. Supp. 2d 1221 (D. Or. 1998); MC/

Telecommunications Corp. v. BellSouth Telecommunications, Inc., 9 F.

Supp. 2d 766 (E.D. Ky. 1998); US West Communications, Inc. v. TCG

Seattle, 971 F. Supp. 1365 (W.D. Wash. 1997); US West Communications,

Inc. v. Reinbold, Civil No. A1-97-25, 1997 U.S. Dist. LEXIS 22606

(D.N.D. Jul 28, 1997). ;

19

section 252(e)(6) of the 1996 Act. See Bell Atlantic Md., 240

F.3d at 301-07. Accordingly, it came as no surprise that the

court also held that section 252(e)(6) failed to put the state

commission on notice that its enforcement of a previously

approved interconnection agreement would waive its immunity

from suit in federal court. /d. Here, there is no dispute that

section 252(e)(6) expressly addresses state commission

approval determinations and subjects those determinations to

review in federal court. See 47 U.S.C. § 252(e)(6); Verizon

Md. Inc., 122 S. Ct. at 1758. Accordingly, the Fourth Circuit’s

rejection of the waiver doctrine in the enforcement context

(even if it had not been vacated) is inapposite.'’

Petitioners also invoke the Sixth Circuit’s decision in GTE

North, Inc. v. Strand, 209 F.3d 909 (6th Cir.), cert. denied, 531

U.S. 957 (2000), as demonstrating a division of authority. But

that case held only that Ex parte Young authorized suit in

federal court. See also Michigan Bell v. Climax Tel., 202 F.3d

at 867. Like this Court in Verizon Maryland, the Sixth Circuit

did not go on to address the waiver issue because its Ex parte

Young determination rendered doing so unnecessary. See 209

F.3d at 922 n.6. . Thus, the Strand court’s discussion of the

waiver doctrine came only in a footnote in pure and

acknowledged dicta. /d. Indeed, the state commission itself

was not even a defendant in Strand. /d. at 912. Accordingly,

the Sixth Circuit’s analysis — of declining to rule on the waiver

'5Ata minimum, the PUC certainly had notice that it would be subject to suit

in federal court by the time that it began the Global Proceeding, as it had

already been sued in the Middle District court and its immunity claims had

already been rejected there. Pet. Supp. App. sa27-sa28. The decision to

arbitrate despite explicit knowledge that a federal court action could ensue

surely constitutes waiver. Cf Lapides v. Board of Regents of the Univ.

System of Ga., 122 S. Ct. 1640 (2002) (state attorney general's litigation

conduct in removing state court action to federal court constitutes waiver of

Eleventh Amendment immunity).

20

issue after holding that Ex parte Young applied — is consistent

with this Court’s reasoning in Verizon Maryland and

underscores the futility of this Court’s granting review on the

waiver issue here.

II. THE STANDARD OF REVIEW ISSUE DOES NOT

WARRANT REVIEW BY THIS COURT.

The appropriate scope of review is not independently

worthy of review by this Court, particularly in a petition like

this one, in which no merits questions are presented. The Third

Circuit’s analysis of this straightforward issue was cogent and

well-reasoned. See supra pp. 9-10. And every court of appeals

that has addressed this uncontroversial issue has agreed that

federal courts should conduct de novo review of a state

commission’s interpretation of the federal 1996 Act. See, e.g.,

Pet. App. at 34a-36a (3d Cir.); GTE South, Inc. v. Morrison,

199 F.3d 733, 745 (4th Cir. 1999); Southwestern Bell Tel. Co.

v. Public Util. Comm'n of Texas, 208 F.3d 475, 482 (Sth Cir.

2000); US West Communications v. MFS Intelenet, Inc., 193

F.3d 1112, 1117 (9th Cir. 1999), cert. denied, 530 U.S. 1284

(2000).'*

Petitioners candidly admit that de novo review is the norm

in such circumstances and are unable to cite a single case

granting deference to a state commission’s interpretation of the

“District courts have consistently reached the same result. See, e.g., Global

Naps, Inc. v. New England Tel. and Tel. Co., 156 F. Supp. 2d 72, 77 (D.

Mass. 2001); Michigan Bell Tel. Co. v. Climax Tel. Co., 121 F. Supp. 2d at

1108-09; MC/ Telecommunications Corp. v. BellSouth Telecommunications

Corp., 112 F. Supp. 2d 1286, 1291-92 (N.D. Fla. 2000); MC/ v. Bell

Atlantic, 36 F. Supp. 2d 419, 422-23 (D.D.C. 1999); AT&T

Communications of the South Central States, Inc. v. BellSouth

Telecommunications, Inc., 20 F. Supp. 2d 1097, 1100 (E.D. Ky. 1998);

Southwestern Bell Tel. Co. v. AT&T Communications of the Southwest, Inc.,

No. A 97-CA-132 SS, 1998 WL 657717, at *3 (W.D. Tex. Aug. 31, 1998).

21

1996 Act or any other federal law. Indeed, federal courts

routinely exercise plenary review over a state agency’s

interpretation and application of federal law. See, e.g.,

AMISUB (PSL), Inc. v. Colorado Dep't of Soc. Servs., 879 F.2d

789, 795-96 (10th Cir. 1989) (reviewing Medicaid Act). They

do so because state agencies simply do not have the expertise

or familiarity that a federal agency has when administering its

own statutory mandate. See Orthopaedic Hospital v. Belshe,

103 F.3d 1491, 1495-96 (9th Cir. 1997) (reviewing Medicaid

Act); Turner v. Perales, 869 F.2d 140, 141 (2d Cir. 1989) (per

curiam) (reviewing National Housing Act). Unlike federal

agencies, state agencies are not typically concerned with “the

need for coherent and uniform construction of federal law

nationwide.” Turner, 869 F.2d at 141. Here, Congress ensured

federal uniformity by granting the FCC exclusive rulemaking

authority, thereby rendering deference to state commissions’

interpretations of the statute wholly inappropriate.

Deference to inconsistent state commission interpretations

of the 1996 Act would cripple the ability of federal courts to

provide guidance on the meaning of the Act and the FCC’s

regulations, and would inject an unacceptable degree of

uncertainty into the implementation of the Act’s pro-

competitive goals. See AT&T Corp., 525 U.S. at 378 n.6, 385

n.10. This Court should deny review of this entirely

uncontroversial issue.

22

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

THOMAS F. O’NEIL III PAUL M. SMITIH*

WILLIAM SINGLE, IV MICHAEL B. DiESANCTIS

JEFFREY A. RACKOW LARA M. FLINT

WORLDCOM, INC. JENNER & BLOCK, LLC

1133 19th Street, N.W. 601 13th Street, N.W.

Washington, D.C. 20036 Washington, D.C. 20005

(202) 736-6933 (202) 639-6000

* Counsel of Record

Counsel for MCI WORLDCOM Network Services, Inc., and

MCImetro Access Transmission Services LLC