5. Assignment of Proceeding

In C.09-12-014, John A. Bohn was the originally assigned Commissioner and A. Kirk McKenzie was the assigned ALJ. In Cases 10-01-019, 10-01-020, and 10-01-021, Nancy E. Ryan was the originally assigned Commissioner and A. Kirk McKenzie the assigned ALJ. These cases are currently assigned to Commissioner Peevey and ALJ Jacqueline Reed.

Findings of Fact

1. The complaint in C. 09-12-014 was filed on December 9, 2009, and the complaints in Cases 10-01-019, 10-01-020, and 10-01-021 were all filed on January 25, 2010.

2. Apart from the number of minutes at issue and the amount of compensation sought, the allegations in the complaints in Cases 10-01-019, 10-01-020, and 10-01-021 are identical.

3. The complaint in C.09-12-014 is essentially identical (except for minutes of use and amount sought) to those in Cases 10-01-019, 10-01-020, and 10-01-021, except that the undue discrimination theory pleaded as the fifth cause of action in the other three complaints is incorporated as part of the second cause of action in C.09-12-014.

4. None of the defendants has entered into an ICA with Pac-West.

5. Each complaint alleges that the defendants named therein have wrongfully refused to pay Pac-West compensation for terminating intrastate CMRS traffic originated on the defendants' networks.

6. Each of the complaints alleges that under the MetroPCS Review Order and other federal authority, this Commission has the authority and responsibility to determine an appropriate rate to compensate Pac-West for terminating intrastate CMRS traffic that originates on the defendants' respective networks.

7. Each of the complaints asks this Commission to rule that the appropriate termination rate for such traffic is the termination rate set forth in Pac-West's intrastate tariff, which applies to carriers with which Pac-West does not have an ICA.

8. In A.10-01-003, NCC asked this Commission to set an appropriate rate for terminating intrastate CMRS traffic that originates on the networks of CMRS providers with which NCC does not have an ICA.

9. In D.10-06-006, this Commission dismissed A.10-01-003 without prejudice.

10. One of the grounds for dismissal cited in D.10-06-006 was that in the MetroPCS Review Order, the FCC declined to determine whether, under FCC rules, MetroPCS had any liability to NCC for terminating intrastate CMRS traffic originating on MetroPCS's network in the absence of an ICA between the parties.

11. Another ground for dismissal cited in D.10-06-006 was that in the MetroPCS Review Order, the FCC did not disclaim its own jurisdiction to decide an appropriate termination rate for the CMRS traffic at issue, but concluded that this Commission was the more appropriate venue to consider the issue in the first instance.

12. A third ground for dismissal cited in D.10-06-006 was the pendency of a petition for review of the MetroPCS Review Order in the D.C. Circuit. In that proceeding the petitioner alleges, among other things, that the FCC failed to carry out its duties under the Telecommunications Act by refusing to set a termination rate for intrastate CMRS traffic and referring the issue to this Commission instead. In D.10-06-006, the Commission concluded that it would benefit from any guidance offered by the D.C. Circuit on the jurisdictional issues raised in the petition for review.

13. A fourth ground for dismissal cited in D.10-06-006 was that the setting of an appropriate termination rate for CMRS traffic was likely to require a significant investment of Commission resources in complex cost proceedings. In D.10-06-006, the Commission expressed concern that these resources might end up being wasted depending on the rulings of the D.C. Circuit and the FCC in response to the petition for review of the MetroPCS Review Order.

14. On June 30, 2010, the assigned ALJ for these cases issued a ruling tentatively consolidating them and scheduling a PHC for July 22, 2010.

15. In the June 30 Ruling, the ALJ directed the parties to submit PHC statements addressing, among other issues, whether the relief sought in these complaint cases was essentially identical to the relief sought in A.10-01-003, and whether, therefore, these cases should not also be dismissed without prejudice in light of D.10-06-006.

16. On July 12, 2010, Pac-West submitted a 25-page PHC statement, and on July 19, 2010, the defendants submitted a 17-page joint response thereto.

17. A PHC was held on July 22, 2010, during which counsel for Pac-West orally responded to the arguments raised in the defendants' joint response, a thorough discussion of the jurisdictional issues took place, and the parties agreed upon a briefing schedule for a motion to dismiss proposed by the defendants.

18. Pursuant to the schedule agreed upon at the PHC, the defendants filed a 34-page joint motion to dismiss these cases on August 19, 2010, Pac-West filed a 59-page opposition thereto on September 2, and the defendants filed a 14-page joint reply to Pac-West's opposition on September 17, 2010.

19. Paragraphs 1-34 in each of the complaints (a) recite the history of the dispute between the parties, (b) allege that under FCC Rule 20.11, the defendants are obligated to pay Pac-West reasonable compensation for terminating intrastate CMRS traffic originated on the defendants' networks, and (c) allege that under the MetroPCS Review Order and other federal authority, this Commission has the responsibility and authority to determine an appropriate rate for the termination services at issue.

20. The first cause of action in each complaint alleges that (a) Pac-West's intrastate tariff sets forth termination charges applicable to carriers with which Pac-West does not have an ICA, (b) this Commission has approved the rates set forth in this intrastate tariff, and (c) this Commission should find that the termination rates set forth in Pac-West's intrastate tariff also constitute reasonable compensation for the intrastate CMRS traffic that Pac-West terminates for defendants.

21. At the July 22 PHC, Pac-West's counsel acknowledged that the first cause of action is a request for relief under federal law.

22. In its 2005 T-Mobile Ruling, the FCC held that while ILECs would no longer be permitted to use intrastate tariffs to collect compensation for terminating CMRS traffic, ILECs would be allowed to request ICAs with CMRS providers, and would also be allowed to invoke the negotiation and arbitration provisions of § 252 of the Telecommunications Act to obtain such ICAs. Under the T-Mobile Ruling, these rights were not extended to CLECs such as Pac-West.

23. On February 8-9, 2011, the FCC issued the NPRM/FNPRM in CC Docket No. 01-92 and other dockets for the stated purpose of developing a unified intercarrier compensation regime. The NPRM/FNPRM asks affected parties for comments on, among other topics, the impact of the MetroPCS Review Order, and whether the MetroPCS Review Order has had any impact on traffic stimulation.

Conclusions of Law

1. This Commission has authority to dismiss a complaint case without prejudice where the issues raised in the complaint case are also pending before federal agencies or courts, and the decision on those issues by the applicable federal agency or court may be determinative in whole or in part of the issues raised in the Commission complaint case.

2. Although they are cast as complaints for wrongful withholding of compensation, the four complaints at issue here seek essentially the same kind of relief that was sought by NCC in A.10-01-003.

3. D.97-11-024 held that carriers have an obligation under Pub. Util. Code § 558 to complete traffic routed to them, even if they are dissatisfied with the compensation arrangements applicable to such traffic. D.97-11-024 does not specify any specific analysis or methodology for arriving at a reasonable rate where appropriate.

4. For the same reasons set forth in D.10-06-006, the complaints here should be dismissed without prejudice.

5. None of the authority cited by Pac-West in support of the various causes of action pleaded in the four complaints at issue here is inconsistent with the decision herein to dismiss these cases without prejudice.

6. In the event Pac-West wishes to revive these cases after the D.C. Circuit's decision on the petition for review of the MetroPCS Review Order and any FCC proceedings resulting directly from that decision, Pac-West should file with this Commission a petition to reopen the cases.

7. In the event the petition to reopen described in the preceding Conclusion of Law is granted, any claim set forth in these four cases that was timely when the cases were filed will continue to be deemed timely upon the reopening of the cases.

8. Cases 09-12-014, 10-01-019, 10-01-020, and 10-01-021 should be closed.

9. This decision should be effective immediately.

ORDER

IT IS ORDERED that:

1. Cases 09-12-014, 10-01-019, 10-01-020, and 10-01-021 are dismissed without prejudice.

2. Cases 09-12-014, 10-01-019, 10-01-020, and 10-01-021 are closed.

This order is effective today.

Dated March 24, 2011, at San Francisco, California.

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