ENSLEN, Chief Judge.
This matter is before the Court on Defendant John Strand, John Shea and David Svanda's Motion to Dismiss filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Plaintiff Michigan Bell Telephone Company, d/b/a Ameritech Michigan, Inc. [hereinafter Ameritech], filed this action against the Commissioners of the Michigan Public Service Commission (MPSC) and competing local telecommunications carriers pursuant to the federal Telecommunications Act of 1996. Alleging violations of both state and federal law, Plaintiff seeks declaratory and injunctive relief to prevent enforcement of an Order issued by the Defendant Commissioners interpreting interconnection agreements entered into by Plaintiff Ameritech and the Defendant telecommunications carriers. The Defendant Commissioners argue that: 1) the Court lacks jurisdiction to proceed; 2) the Eleventh Amendment bars suit against them as state officials; 3) whether or not jurisdiction exists, the Court must abstain from rendering judgment; and 4) the Johnson Act prohibits the Court from enjoining the agency. Both the Plaintiff and Defendant telecommunications carriers oppose the Commissioners' contentions. Upon review, the Motion to Dismiss is denied.
The Telecommunications Act of 1996, Pub.L. 104-104, 1996 U.S.C.C.A.N. (110 Stat. 56) 10 (codified as amended in scattered sections of Title 47 of the United States Code),
Iowa Utils. Bd., 120 F.3d at 791 (citing 47 U.S.C. § 251(c)(2)-(4)). The Act also requires that the incumbent and competing LECs enter into interconnection agreements fulfilling the duties described in section 251 by following the procedures set forth in section 252. § 251(c)(1).
Section 252 articulates a four-step process to guide the parties toward an interconnection agreement which adheres to the requirements of the Act. First, section 252(a)(1) provides for the parties to attempt to reach an agreement through negotiation or mediation. If no agreement can be reached voluntarily, section 252(b) and (c) set out the specific standards and procedures by which either party may request that the state commission arbitrate any open issues. Once an agreement has been executed, it must be submitted to the state commission for approval pursuant to section 252(e). The state commission may only reject an agreement under certain limited circumstances delineated in section 252(e)(2). Finally, review of any determination made by the state commission approving or rejecting an agreement under this section lies exclusively within the jurisdiction of the federal district court. § 252(e)(4) & (6). If, however, the state commission elects not to participate in this process or fails to act within 90 days to resolve a matter arising under section 252, the Federal Communications Commission (FCC) is granted preemptive jurisdiction by section 252(e)(5).
Ameritech brings this suit pursuant to section 252(e)(6), alleging in part that the Order issued by the Commissioners interprets the interconnection agreements between itself and the Defendant competing LECs in a manner which violates federal law. The case arose when Ameritech ceased paying reciprocal compensation
A. Rule 12(b)(1)
The Sixth Circuit has adopted two standards of dismissal for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). See Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). A facial attack merely questions the sufficiency of the pleading. In that context, the Court will utilize the standard applied to Rule 12(b)(6) motions. On the other hand, where a court reviews a complaint under a factual attack, no presumptive truthfulness applies to the factual allegations. In such cases, the Court has wide discretion to allow affidavits, documents and even a limited evidentiary hearing to resolve disputed jurisdictional facts. Fairport Int'l Exploration, Inc. v. Shipwrecked Vessel Known as the Captain Lawrence, 105 F.3d 1078, 1081 (6th Cir.1997). In the instant case, Defendants' Motion to Dismiss falls within the first category of Rule 12(b)(1) motions. Therefore, this Court will apply a 12(b)(6)-type standard to the 12(b)(1) motion.
B. Rule 12(b)(6)
Under Rule 12(b)(6), a complaint may be dismissed "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." The complaint must be construed in the light most favorable to the plaintiff, and its well-pleaded facts must be accepted as true. The Court, however, need not accept as true legal conclusions or unwarranted factual inferences. Lewis v. ACB Business Serv., Inc., 135 F.3d 389, 405 (6th Cir.1998). The purpose of this motion is to determine whether plaintiff has stated a claim upon which relief may be granted.
A. Subject Matter Jurisdiction
Fundamental to federal court authority is the principle that federal jurisdiction is limited by the restrictions embodied in Article III of the United States Constitution. Plastic Engineered Components, Inc. v. Titan Indemnity Co., 974 F.Supp. 1106, 1109 (W.D.Mich.1997) (citing Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986)). Consequently, whenever it appears by suggestion of the parties or otherwise that the Court
Plaintiff alleges that jurisdiction to hear this matter is specifically provided by section 252(e)(6) of the Act. Section 252(e)(6) provides in pertinent part:
In the instant case, Plaintiff Ameritech alleges that an Order rendered by the Commissioners involving an interconnection agreement created under, and indeed mandated by, this subpart of the Act, is in violation of the Act. Arguing that the Order is a determination within the meaning of 252(e)(6), Plaintiff asserts jurisdiction is proper.
In their motion, the Commissioners argue that, because the MPSC Order involves the interpretation and enforcement of an interconnection agreement, rather than its approval or rejection, this Court is without jurisdiction to proceed. Looking to recent case law interpreting the term "determination" in the context of section 252(e)(6), the Movants assert that the term is limited to those decisions in which the State commission approves or rejects the agreement. Neither the reasoning of those cases nor the structure of the statute support the Commissioners' assertion, however. First, the line of cases to which the Commissioners cite confronts a profoundly different legal question. For example, in GTE North v. Strand, No. 5:97CV01, 1997 WL 811422 (W.D.Mich.), Judge Robert Holmes Bell was called upon to decide whether the Court had jurisdiction to review an MPSC decision arbitrating certain aspects of an interconnection agreement which had not yet been submitted to the state commission for final approval. Like every other federal court confronting the question, after reviewing the structure of the Act, Judge Bell held that the Court had no jurisdiction to review MPSC decisions arising during the § 252 process until after the interconnection agreement had become final by way of commission approval or rejection. See, e.g., GTE Southwest, Inc. v. Graves, 989 F.Supp. 1148, 1150 (W.D.Okla.1997); GTE North Inc. v. Glazer, 989 F.Supp. 922 (N.D.Ohio 1997); GTE Northwest, Inc. v. Nelson, 969 F.Supp. 654 (D.Wash.1997); GTE Florida, Inc. v. Johnson, 964 F.Supp. 333 (N.D.Fla.1997); GTE South Inc. v. Breathitt, 963 F.Supp. 610 (E.D.Ky.1997); GTE South Inc. v. Morrison, 957 F.Supp. 800 (E.D.Va.1997); Contel of Minnesota, Inc. v. Jacobs, No. 97-169, 1997 WL 809628 (D.Minn. May 30, 1997). In the instant case, the Order in question involves an agreement which has already received final approval. Consequently, these cases provide no support for the Commissioners' assertion that Plaintiff's claims should be dismissed.
Furthermore, consideration of the statutory scheme demonstrates that permitting state court review of this type of Order would directly contravene the intent of Congress. The Court's ultimate purpose in interpreting a statute is "to give effect to the intent of Congress[.]" Cummings v. West, 136 F.3d 1468, 1472 (Fed.Cir.1998) (citing Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 138, 111 S.Ct. 478, 112 L.Ed.2d 474 (1990)). To accomplish that goal, the Court must look "not only [to] the particular statutory language, but to the design of the statute as a whole and to its object and policy." Crandon v. United States, 494 U.S. 152, 158, 110 S.Ct. 997, 108 L.Ed.2d 132 (1990)). Thus, the Court must view each individual term as part of the entire statutory scheme so as not to frustrate the purpose Congress sought to achieve.
Reviewing this subpart of the Act as a whole,
The Commissioners, nevertheless, argue that the state courts have concurrent jurisdiction to review MPSC decisions enforcing such agreements in which the MPSC would once again be interpreting federal law. Were this the case, parties could avoid the exclusive jurisdiction provision of the Act by simply waiting to challenge a given issue until an enforcement proceeding had been conducted rather than at the approval stage. Such an interpretation defies logic. Furthermore, as the Eighth Circuit Court of Appeals recently noted, "authority to accept or reject these agreements necessarily carries with it the authority to enforce the provisions of agreements that the state commission has approved." Iowa Utils. Bd., 120 F.3d at 804. Thus, the language of subsection (e)(4) prohibiting state courts from reviewing approval and rejection decisions implicitly encompasses interpretation and enforcement decisions. Given the statutory structure and language of section 252, the Court finds that the MPSC decisions interpreting or enforcing interconnection agreements born of this subpart are also within the exclusive jurisdiction of the federal courts. Because the Court holds that section 252 provides specific, statutory jurisdiction, it need not determine whether section 1331 also supports federal jurisdiction.
Having determined that this Court has exclusive jurisdiction to review the MPSC Order herein challenged, the remainder of the Commissioners' motion loses its force. Indeed, every court that has confronted the questions herein presented has held in favor of Nonmovants' position. Because this Court finds the reasoning of those numerous other courts persuasive, a cursory review of the Defendant Commissioners' remaining arguments will suffice.
B. Eleventh Amendment
The Commissioners contend that whether or not the Act provides jurisdiction, they are immune from suit under the Eleventh Amendment to the United States Constitution. Under the Eleventh Amendment, the federal courts generally lack jurisdiction to hear suits filed by individual citizens against the several states.
A state may effectuate waiver of its immunity "by a state statute or constitutional provision, or by otherwise waiving its immunity to suit in the context of a particular program." Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n. 1, 105 S.Ct. 3142, 87 L.Ed.2d 171 (1985). Although in most instances waiver must be explicit, in certain limited circumstances, the State will be deemed to have constructively waived its Eleventh Amendment protection. MCI Telecomm. Corp. v. BellSouth Telecomm., Inc., 9 F.Supp.2d 766, 770 (E.D. Ky.1998). One such circumstance occurs when a state voluntarily engages in an activity regulated by a federal law that mandates federal review of the activity. MCI Telecomm. Corp., 9 F.Supp.2d at 770; MCI Telecomm. Corp. v. Illinois Bell Tel. Co., No. 97 C 2225, 1998 WL 156678, *8 (N.D.Ill. Mar. 31, 1998). The test for determining whether waiver exists is stringent, however. Atascadero, 473 U.S. at 241, 105 S.Ct. 3142. Waiver will be found "only where stated by the most express language or `by such overwhelming implication from the text as [will] leave no room for any other reasonable construction.'" Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909)). See also Pennhurst, 451 U.S. at 17, 101 S.Ct. 1531 (1981) ("By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation."). Thus, the federal statute must make it clear that state participation in the activity is contingent upon consent to federal jurisdiction. MCI Telecomm. Corp., 9 F.Supp.2d at 770; MCI Telecomm. Corp., 1998 WL 156678 at *8.
In the instant case, Congress has spoken in one such clear voice. U.S. West Comm., Inc. v. TCG Seattle, 971 F.Supp. 1365, 1370 (W.D.Wash.1997). First, the Telecommunications Act demonstrates unequivocally that state participation in the section 252 process is entirely voluntary by providing a mechanism for the FCC to fulfill the State's role if it declines to participate. § 252(e)(5); U.S. West Comm., 971 F.Supp. at 1369; U.S. West Comm. v. Public Serv. Comm'n, 991 F.Supp. 1299, 1301-02 (D.Utah 1998). Second, section 252(e)(6) explicitly states that the federal courts will have jurisdiction to review any determination made by the State commission. Given that there is no other reasonable construction of the statute, the Court finds that "[t]he implication that Congress conditioned state participation in the interconnection agreement process on waiver could hardly be clearer." U.S. West Comm., 971 F.Supp. at 1370. For these reasons, the Court joins the numerous other federal courts which have uniformly held that the State's actions in this context constitute a constructive waiver of its Eleventh Amendment immunity. Michigan Bell Tel. Co. v. Climax Tel. Co., No. 5:97CV197, Transcript of Hearing at 5 (W.D.Mich. Feb. 12, 1998) (Quist, J.); MCI Telecomm. Corp. v. BellSouth Telecomm., Inc., 9 F.Supp.2d at 770
2. Ex parte Young
Turning to Plaintiff's next argument, the Court notes from the outset that the instant case is, as Plaintiff puts it, a "garden variety" Ex parte Young case. In Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, the Supreme Court "recognize[d] that if a state official violates federal law, he is stripped of his official or representative character and may be personally liable for his conduct[.]" Idaho v. Coeur d'Alene, 521 U.S. 261, 117 S.Ct. 2028, 2043, 138 L.Ed.2d 438 (1997) (citing Young, 209 U.S. at 159-60, 28 S.Ct. 441). More recently, the Supreme Court reiterated this position, stating: "[w]here a plaintiff seeks prospective relief to end a state officer's ongoing violation of federal law, such a claim can ordinarily proceed in federal court." Coeur d'Alene, 117 S.Ct. at 2043 (citing Milliken v. Bradley, 433 U.S. 267, 289-290, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977)).
Plaintiff Ameritech seeks an order enjoining the Commissioners from enforcing an Order which Plaintiff alleges violates federal law. Such enforcement constitutes an "ongoing violation" and the relief sought is clearly prospective despite the fact that the Order involves monetary relief. Consequently, this Court, like the many courts cited below, holds that Ex parte Young applies in the instant case to permit this suit to proceed. U.S. West Comm., Inc. v. Public Serv. Comm'n, 991 F.Supp. 1299, 1301 (D.Utah 1998); MCI Telecomm. Corp. v. BellSouth Telecomm., Inc., 9 F.Supp.2d at 771 (E.D.Ky. 1998); U.S. West Comm., Inc. v. Public Serv. Comm'n, 991 F.Supp. 1299, 1301 (D.Utah 1998); MCI Telecomm. Corp. v. Illinois Bell Tel. Co., No. 97 C 2225, 1998 WL 156678, *13 (N.D.Ill. Mar. 31, 1998); AT & T Comm., Inc. v. Michigan Bell Tel., Co., Nos. 97-CV-60018, 97-CV-60176, slip op. at 6-7, 8 (E.D.Mich. Mar. 19, 1998); AT & T Comm., Inc. v. BellSouth Telecomm., Inc., Nos. 1:97-cv-884-RCF, 1:97-cv-1318-RCF, slip op. at 5 (N.D.Ga. Feb. 11, 1998); U.S. West v. TCG Oregon, No. 97-858-JE, slip op. at 17 (D.Ore. Jan. 30, 1998); MCI Telecomm. v. AT & T Comm., No. 3:97-0523, slip op. at 12-16 (M.D.Tenn. Jan. 27, 1998); MCI Telecomm., Inc. v. Bell Atlantic-Virginia Inc., No. 3:97CV629, slip op. at 4 (E.D.Va. Dec. 24, 1997); AT & T Comm. v. BellSouth Telecomm. Inc., No. 97-79, slip op. at 7-8 (E.D.Ky. Dec. 15, 1997); AT & T Comm., Inc. v. BellSouth Telecomm., Inc., Nos. 3:97-2164, 3:97-2388, slip op. at 6 (D.S.C. Dec. 11, 1997); MCI Telecomm., Inc. v. BellSouth Telecomm., Inc., No. 4:97-CV-141-RH, slip op. at 5 (N.D.Fla. Nov. 21, 1997); GTE Florida, Inc. v. Clark, No. 4:97-CV-211-RH, slip op. at 6 (N.D.Fla. Nov. 21, 1997); MCI Telecomm., Inc. v. Sprint-Florida, Inc., No.
The Defendant Commissioners also suggest that because Plaintiff has also filed an appeal of the MPSC Order in state court, this Court should abstain under the doctrines set forth in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and Burford v. Sun Oil Company, 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943). "It is axiomatic ... that `[a]bstention from the exercise of federal jurisdiction is the exception, not the rule.' Abstention rarely should be invoked, because the federal courts have a `virtually unflagging obligation ... to exercise the jurisdiction given them.'" Ankenbrandt v. Richards, 504 U.S. 689, 705, 112 S.Ct. 2206, 119 L.Ed.2d 468 (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). Nevertheless, under certain circumstances, the Abstention doctrines demand that federal courts sitting in equity abstain from judgment in accordance with the principles of comity and federalism. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 723, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). Two such doctrines are embodied in the above-mentioned cases. Application of both doctrines, however, is contingent upon the availability of an adequate state remedy. See GTE Mobilnet v. Johnson, 111 F.3d 469 (6th Cir.1997) (noting abstention inappropriate where federal courts have exclusive jurisdiction over claims); Federal Express Corp. v. Tennessee Pub. Serv. Comm'n, 925 F.2d 962, 968 (6th Cir.1991); Great Lakes Steel v. Deggendorf, 716 F.2d 1101, 1105 (6th Cir. 1983) (citing General Motors Corporation v. Buha, 623 F.2d 455, 459 (6th Cir.1980)). Having determined that the federal courts have exclusive jurisdiction over Plaintiff's 252(e)(6) claim, the Court finds that abstention is not appropriate.
D. Johnson Act
Turning to the Commissioners' last argument, the Court holds that Ameritech's claims are clearly not barred by the Johnson Act. The Johnson Act prohibits federal district courts from enjoining "the operation of, or compliance with, any order affecting rates chargeable by a public utility and made by a state administrative agency or rate-making body of a State political subdivision, where:
28 U.S.C. § 1342. Thus, the Johnson Act deprives a federal court of jurisdiction to review a state commission's order only when all four stated conditions are met. U.S. West Comm., Inc. v. Public Serv. Comm'n, 991 F.Supp. 1299, 1302 (D.Utah 1998). In the instant case, however, the Court has already determined that jurisdiction in this case is not based on either diversity or a question arising under the Federal Constitution as required in subsection (1). Consequently, the Johnson Act does not pose a bar to adjudication. See U.S. West Comm., Inc. v. Public Serv. Comm'n, 991 F.Supp. 1299, 1302 (D.Utah 1998); AT & T Comm., Inc. v. Michigan Bell Tel., Co., Nos. 97-CV-60018, 97-CV-60176, slip op. at 10 (E.D.Mich. Mar. 19,
For the foregoing reasons, the Defendant Commissioners' Motion to Dismiss is denied.
In accordance with the Opinion entered this date,