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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 941

## Text

; 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1679%3A6. Public record. Not legal advice.