ALJ/MCK/tcg Date of Issuance 3/29/2011
Decision 11-03-034 March 24, 2011
BEFORE THE PUBLIC UTILITIES COMMISSION OF THE STATE OF CALIFORNIA
Pac-West Telecomm, Inc. (U5266C), Complainant, vs. Sprint Spectrum, L.P., WirelessCo. L.P., Sprint Telephony PCS, L.P., Nextel of California, Inc. and jointly d/b/a Sprint PCS (U3062C, U3064C, and U3066C), Defendants. |
Case 09-12-014 (Filed December 9, 2009) |
And Related Matters. |
Case 10-01-019 Case 10-01-020 Case 10-01-021 |
DECISION DISMISSING COMPLAINTS WITHOUT PREJUDICE
DECISION DISMISSING COMPLAINTS WITHOUT PREJUDICE 1
1. Summary 2
2. Procedural Background 5
2.1. The Allegations in the Complaints 6
2.2. The NCC Application and D.10-06-006 8
2.3. The ALJ Ruling Convening the PHC in These Cases 11
2.4. The Discussion at the July 22 PHC 12
3. Discussion 15
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. 15
3.2. Commission Precedent Authorizes the Dismissal of These
Cases Without Prejudice 20
4. Comments on Proposed Decision 23
4.1. Elimination of Alleged Dicta. 23
4.2. The Complaints Implicate Federal Law. 25
4.3. As a Prudential Matter, this Commission Will Follow Its Earlier
Decision to Defer Adjudicating these Cases in Order to Give the
FCC and the D.C. Circuit the Opportunity to Clarify the Scope of
the Commission's Authority Regarding CMRS-CLEC Traffic. 27
4.4. Arriving at a Reasonable Rate for Asymmetric CMRS-CLEC
Traffic is More Difficult than Pac-West Suggests. 32
5. Assignment of Proceeding 36
Findings of Fact 36
Conclusions of Law 40
ORDER 41
DECISION DISMISSING COMPLAINTS WITHOUT PREJUDICE
1. Summary
In this decision, we dismiss without prejudice four virtually identical complaints that Pac-West Telecomm, Inc. (Pac-West) has filed against four groups of carriers that provide Commercial Mobile Radio Service (CMRS) and transmit CMRS traffic for termination to Pac-West. In each of the complaints, Pac-West alleges that the CMRS providers have wrongfully refused to pay Pac-West (a competitive local exchange carrier, or CLEC) for the termination of certain telecommunications traffic originated by the CMRS providers' customers. Pac-West generally alleges that each of the defendants should be required to pay a rate equal to the termination rate appearing in Pac-West's intrastate tariff, which applies to carriers like the defendants with which Pac-West does not have an interconnection agreement (ICA). Pac-West further alleges that this Commission has jurisdiction to set an appropriate termination rate for CMRS traffic pursuant to the so-called MetroPCS Review Order, 1 which was issued by the Federal Communications Commission (FCC) on November 19, 2009.
In its MetroPCS Review Order, the FCC referred a similar CMRS-CLEC dispute -- between North County Communications Corp. (North County or NCC) and MetroPCS California, LLC (MetroPCS) -- to this Commission for determination of a "reasonable rate." North County then filed an Application (A.10-01-003) with this Commission, asking that we set such a reasonable rate for the termination of intrastate CMRS traffic. We are now dismissing the instant complaints without prejudice for many of the same reasons that we dismissed without prejudice North County's Application for ratesetting pursuant to the MetroPCS Review Order.2
In that Decision (D.10-06-006), we noted that the MetroPCS Review Order is currently the subject of a petition for review in the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit).3 In its petition for review, MetroPCS argues that the FCC acted arbitrarily and capriciously, and failed to engage in reasoned decision making, when it concluded that this Commission is a "more appropriate" forum than the FCC to determine a termination rate for the CMRS traffic at issue. The bases for this argument are that (1) §§ 201 and 332 of the Communications Act give the FCC plenary authority to regulate interconnection between CMRS providers and other common carriers and require the FCC to ensure that rates for such interconnection are just and reasonable, (2) the referral of the rate issue to this Commission is inconsistent with the FCC's 2005 T-Mobile Ruling, 4 (3) the FCC has a duty under § 208 of the Communications Act to decide complaint cases alleging violations of its regulations, and (4) even assuming the referral to this Commission was permissible, the FCC acted arbitrarily and capriciously by failing to give guidance about the parameters of a proper CMRS rate.
Depending on how these issues are decided by the D.C. Circuit, there may be little, if any, role for this Commission to play in determining the proper rate for termination of intrastate CMRS traffic. Thus, if this Commission were to accede to Pac-West's request that it immediately establish a rate for termination of the CMRS traffic at issue, there is a significant risk the Commission would end up wasting the resources devoted to this effort. Conversely, if the D.C. Circuit affirms the FCC's referral and clarifies the scope of this Commission's task, or if the decision is affirmed and the FCC provides guidance about the parameters of reasonableness in this controversial area, it will presumably make sense for this Commission to proceed. In any event, if the D.C. Circuit and/or the FCC fail to act within a reasonable time, the parties herein may once again seek resolution of these matters.
Although Pac-West has argued at length that it is seeking different relief under California law than the relief sought by NCC in A.10-01-003, we find Pac-West's arguments unpersuasive. First, even though it strenuously denies doing so, Pac-West is effectively asking us to apply its intrastate tariff to the CMRS traffic at issue here, even though the FCC in its T-Mobile Ruling has forbidden the setting of termination rates for intrastate CMRS traffic through tariffs. Second, although Pac-West claims that all of its causes of action except one are based on California law, it is clear to us that the complaints as written intertwine federal and state law. Moreover, none of the authority Pac-West cites compels us to consider these claims immediately. In particular, we find unpersuasive Pac-West's argument that, under D.97-11-024, it has an independent and immediate right under California law to be compensated for CMRS traffic.
Finally, we agree with the defendants that Pac-West will suffer no irreparable harm if the complaints here are dismissed without prejudice pending the resolution of these federal issues. As we held in D.06-04-010, where we dismissed a complaint in which many of the issues presented were also pending before the FCC, Pac-West may petition this Commission to reopen these cases to the extent the D.C. Circuit's decision concerning the MetroPCS Review Order (and any subsequent FCC rulings resulting directly from that decision) leave issues for this Commission to decide with respect to intrastate CMRS traffic termination. Moreover, under D.06-04-010, any of Pac-West's claims that were timely when these four complaints were originally filed will remain timely if the cases are reopened.
1 The formal title of the MetroPCS Review Order is North County Communications Corp. v. MetroPCS California, LLC, Order on Review (FCC 09-100), 24 FCC Rcd 14036, issued November 19, 2009.
2 Decision 10-06-006, in Application (10-01-003) of North County Communications Corporation of California (U5631C) for Approval of Default Rate for Termination of Intrastate, IntraMTA Traffic Originated by CMRS Carriers.
3 In the D.C. Circuit, the petition for review is pending under the name of MetroPCS California, LLC v. Federal Communications Commission, Case No. 10-1003. According to Pac-West, the matter was scheduled for oral argument before the D.C. Circuit on October 14, 2010.
4 The formal citation for the T-Mobile Ruling is Developing a Unified Intercarrier Compensation Regime; T-Mobile Petition for Declaratory Ruling Regarding Incumbent LEC Wireless Termination Tariffs, Declaratory Ruling and Report and Order, CC Docket No. 01-92, FCC 05-42, 20 RCC Rcd 4855 (released February 24, 2005) (T-Mobile).
