3. Discussion

The CMRS carriers have moved to dismiss Pac-West's complaints on four grounds: (1) the prudential considerations set forth in D.10-06-006 and described above; (2) the asserted attempt by Pac-West to impose its tariffed rates, even though this is expressly prohibited by the T-Mobile Ruling; (3) Pac-West's alleged failure to state a claim because there is no federal obligation to pay compensation under the facts here; and (4) the claimed lack of jurisdiction of this Commission to set a CMRS-CLEC rate.

3.1. D.97-11-024 Does Not Confer a Right Upon Pac-West Under State Law to an Immediate Determination of What Constitutes Reasonable Compensation for Terminating CMRS Traffic, Especially in View of the Pendency of Related Proceedings.

Although Pac-West argues in its papers here that it has stated four valid causes of action under state law, D.97-11-024 (76 CPUC2d 458) is the underlying basis for its claim that under California law, it is entitled to compensation for terminating the defendants' CMRS traffic. In D.97-11-024, the Commission held that under Pub. Util. Code § 558, "all carriers are obligated to complete calls where it is technically feasible to do so regardless of whether they believe that the underlying intercarrier compensation arrangements are proper." However, Pac-West argues, D.97-11-024 stated as a corollary of this obligation that "carriers are entitled to just and reasonable compensation for the completion of calls over their facilities," and that to allow the pursuit of such claims, "the Commission has provided procedural remedies through the complaint process and other formal and informal dispute-resolution measures in which restitution can be achieved." Pac-West concludes that in filing these complaint cases, it is merely pursuing the right to compensation recognized in D.97-11-024, and that the Commission should therefore adjudicate its rights promptly. (Opposition to Motion to Dismiss at 11-13.)

The joint defendants argue that Pac-West reads D.97-11-024 too broadly. They point out that the holding of the decision is that "all carriers are obligated to complete calls where it is technically feasible to do so," regardless of the carriers' views about the relevant intercarrier compensation arrangements. However, defendants continue, in D.97-11-024 the Commission "was not addressing, much less resolving, appropriate compensation arrangements," an issue that the decision -- which was issued in the Commission's Local Competition docket10 -- left to another proceeding. Moreover, defendants continue, "the key issue in the Pac-West complaints - as it was in the NCC Application -- is whether an obligation to [pay] just and reasonable compensation between a CLEC and a CMRS provider attaches in the absence of a tariff or agreement. D.97-11-024 does not address much less resolve that issue." (Joint Reply to Opposition to Motion to Dismiss at 4, 5.)

Although Pac-West is correct that D.97-11-024 recognizes in the abstract a carrier's right to be compensated for calls it terminates, the joint defendants offer a more persuasive reading of the case. As they note in their September 17, 2010 joint reply, the language on which Pac-West relies for its right to seek compensation appears in a single paragraph that follows several others emphasizing the duty of all carriers to complete calls under both § 558 of the Pub. Util. Code and § 251(a)(1) of the Telecommunications Act. The language on which Pac-West relies is as follows:

While carriers are entitled to just and reasonable compensation for the completion of calls over their facilities, the resolution of any disputes over compensation must necessarily be addressed after, and independent of, the physical routing of the calls has been completed. The Commission has provided procedural remedies through the complaint process and other formal and informal dispute-resolution measures in which restitution can be achieved. (76 CPUC2d at 460.)

When read in context, this paragraph merely makes the point that carriers have a remedy if they believe the compensation they are receiving for call completion is inadequate. However, D.97-11-024 says nothing about when this remedy may be available, or how it may be affected by other proceedings. Indeed, apart from announcing the general duty of all carriers to complete calls, one of the few specific things D.97-11-024 does decide is that resolution of the issues in the complaint case that gave rise to D.97-11-024 should take place elsewhere:

We do not address here the merits of the factual dispute in the Pac-West complaint which gave rise to this issue. Nonetheless, in whatever manner we ultimately resolve that complaint, we conclude that all carriers are entitled to have their calls routed and completed by other carriers in the manner they have requested . . . The question of call rating and routing restrictions and compensation arrangements for the routing of calls to distant locations will be resolved as a separate matter in the complaint case or in an alternative procedural forum to be determined by the Commission. (Id. at 460-61.)

Contrary to Pac-West's arguments, nothing in D.97-11-024 suggests that this Commission cannot invoke its regular procedural tools -- such as dismissing complaints without prejudice -- when the use of such procedures is appropriate because related and potentially determinative issues are pending in other forums.

As D.10-06-006 makes clear, there are a large number of issues related to these cases that are pending in other forums. First, as defendants point out, the MetroPCS Review Order did not disturb the holding of the Bureau Merits Order 11 that the FCC was making "no determinations at this time as to whether rule 20.11 imposes obligations to pay compensation in the absence of an agreement, and if so, on what terms . . ."12 If we were to hold prior to the D.C. Circuit's decision on the MetroPCS Review Order that D.97-11-024 creates an obligation under state law to pay compensation in the absence of an interconnection agreement (or that CMRS providers are obligated to enter into such agreements with CLECs despite the T-Mobile Ruling), we might be creating a significant potential for conflict with federal law governing CMRS traffic, an area in which §§ 332 and 201 of the Telecommunications Act give the FCC very broad authority. Iowa Utilities Bd. v. FCC, 120 F.3d 753, 800 n. 21 (8th Cir. 1997), aff'd in part and rev'd in part on other grounds sub nom. AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366 (1999); T-Mobile Ruling at ¶ 14, n. 58.

Second, as noted above, D.97-11-024 was an announcement of general policy issued in this Commission's Local Competition docket. Both the issue stated and the conclusion reached by D.97-11-024 are summarized in its first Ordering Paragraph (OP): "All telecommunications carriers are obligated to complete calls where it is technically feasible to do so regardless of whether they believe that the underlying intercarrier compensation arrangements or rating and routing instructions for completion of calls are proper." This OP sheds no light on the nature of the compensation that CLECs like Pac-West can appropriately receive for the termination services they provide to CMRS providers like the defendants. As discussed elsewhere in this decision, the compensation issues in these cases raise difficult questions that may require protracted cost proceedings. If this Commission is ultimately called upon to decide these questions, we believe we would benefit from guidance by the FCC. We note that the FCC's failure to offer such guidance is one of the grounds for reversal cited in the petition for review of the MetroPCS Review Order.

We conclude that nothing in D.97-11-024 limits our powers to manage the Commission's docket by dismissing these cases without prejudice until related (and potentially determinative) issues have been addressed by the D.C. Circuit in the challenge to the MetroPCS Review Order.

3.2. Commission Precedent Authorizes the Dismissal of These Cases Without Prejudice

In their joint motion to dismiss, the defendants request that these cases should either be dismissed, or "held in abeyance pending at least the resolution" of the petition for review of the MetroPCS Review Order. (Joint Motion to Dismiss at 34.)

We have concluded that where, as here, related and potentially determinative issues are pending in a federal forum, our decisions authorize the dismissal without prejudice of complaint cases such as these. In D.06-04-010, Pacific Bell Telephone Company v. MAP Mobile Communications, Inc., we held that it was appropriate to dismiss a complaint case alleging refusal to pay for interconnection services because the FCC was "considering many, if not all" of the same issues in a complaint case that the defendant had filed at the FCC a few months before.

Pacific opposed the dismissal on grounds that echo the arguments made by Pac-West here. First, Pacific argued that dismissal was inappropriate because the issues pending before the FCC and this Commission were not identical. In response to this, the Commission stated:

We need not resolve whether the issues before the FCC and this Commission are identical, because there are, at the least, many overlapping issues and defenses (e.g., the validity of the interconnection agreement) to resolve. The similarity of the two actions merits [a dismissal without prejudice.] Moreover, Pacific will not be prejudiced if the FCC fails to resolve all of the issues raised in this complaint. Should the FCC's final disposition of the similar case before it fail to resolve the issues between Pacific and MAP presented in this case, Pacific may petition to reopen its complaint in this case to resolve those issues. (D.06-04-010 at 5.)13

Pacific also urged this Commission to stay its complaint rather than dismiss it without prejudice because of concerns about the statute of limitations. In response to this, the Commission stated:

According to Pacific, a stay would not affect the statu[t]e of limitations [on] Pacific's claims, whereas a dismissal may result in some of Pacific's claims being time-barred in a subsequent action before the Commission. However, the decision states that if any of the issues between Pacific and MAP presented in this case are not resolved in the FCC action, that Pacific may petition this Commission to reopen its complaint case to resolve those issues. It is our intention that if the Commission grants Pacific's motion to reopen the complaint case, that case would be processed according to the initial filing date. (Id. at 6; emphasis in original.)

The same relief granted in D.06-04-010 is appropriate here. We will dismiss these four complaint cases without prejudice. If Pac-West wishes to reopen them after the D.C. Circuit has ruled on the petition for review of the MetroPCS Review Order (and the FCC has completed any proceedings resulting directly from that ruling), Pac-West may petition this Commission to do so. If the petition to reopen the proceedings is granted, any claim by Pac-West that was timely on the original filing date of the complaints will be deemed timely upon the reopening of the cases. 14

10 The Local Competition proceeding was a combined rulemaking (R.) and investigation (I.) assigned docket numbers R.95-04-043/I.95-04-044.

11 The formal citation for the Bureau Merits Order is North County Communications Corp. v. MetroPCS California, LLC, Memorandum Opinion and Order (DA 09-719), 24 FCC Rcd 3807 (2009).

12 Bureau Merits Order at ¶ 15, footnote 55.

13 In granting the dismissal without prejudice, D.06-04-010 relied on Pacific Bell v. AT&T Communications of California, Inc., D.97-09-105, 75 CPUC2d 678. At pages 4-5 of D.06-04-010, the Commission described that earlier decision as follows:

In Pacific Bell v. AT&T, the Commission dismissed without prejudice Pacific's complaint that AT&T and MCI were marketing their local and interexchange services as one package, thus violating federal law and an FCC decision, as well as state law. The Commission reasoned that whether violations of federal law occurred were best left to the FCC. The Commission also justified its result with reasoning equally applicable to the instant case:

14 In addition to the other arguments described in the text, Pac-West argues that a dismissal of its complaints here -- even a dismissal without prejudice -- would violate the requirements of both due process and the Equal Protection Clause. (Opposition to Motion to Dismiss at 48-53.)

Pac-West's arguments have not persuaded us that dismissal of these cases without prejudice would violate constitutional requirements. As the defendants point out in their September 17, 2010 joint reply, the argument that dismissal of these complaints would deny Pac-West equal protection is really an attack on the FCC's decision in the T-Mobile Ruling to give only ILECs, and not CLECs like Pac-West, the right to demand negotiation and arbitration with CMRS providers under § 252 of the Telecommunications Act. Pac-West may be dissatisfied with the FCC's rule, but if that is the case, the correct response - as the defendants observe - is to petition the FCC to change the rule, not to ask this Commission to conduct an end-run around it. (Joint Reply to Opposition to Motion to Dismiss at 5-9.)

With respect to Pac-West's due process argument, it seems to be based mainly on the assertion that a dismissal without prejudice would amount to rescinding, altering or amending D.97-11-024 without a hearing, in violation of Pub. Util. Code § 1708. (Opposition to Motion to Dismiss at 49.) Although Pac-West argues that D.97-11-024 "specifically authorizes" the complaints here, the discussion in Section 3.1 of this decision demonstrates that the holding of D.97-11-024 is that all carriers have a duty to complete calls under § 558 of the Pub. Util. Code, whether or not they are satisfied with the relevant compensation arrangements. Nothing in D.97-11-024 suggests that this Commission cannot invoke regular procedural tools such as dismissing complaints without prejudice, especially when potentially determinative issues are pending in related federal proceedings.

Previous PageTop Of PageNext PageGo To First Page