FORRESTER, District Judge.
This matter is before the court on Plaintiff's petitions for judicial review of four orders of the Georgia Public Service Commission ("PSC").
I. STATEMENT OF THE CASE
A. Procedural History
Plaintiff, BellSouth Telecommunications, Inc. ("BellSouth"), filed the instant actions seeking judicial review, pursuant to 47 U.S.C. § 252(e)(6), of four PSC orders holding that BellSouth must pay reciprocal compensation to its competitors for calls made to Internet service providers ("ISP").
The Telecommunications Act of 1996 ("the Act" or "the 1996 Act") requires all telecommunications carriers "to interconnect directly or indirectly with the facilities and equipment of other telecommunications carriers" so that customers of one carrier can call customers of a different carrier. 47 U.S.C. § 251(a)(1). Important provisions in the Act apply specifically to local exchange carriers ("LECs"). Prior to the Act's passage, local telephone service was thought to be a natural monopoly, and states typically granted exclusive franchises in each local service area to a LEC, which owned the equipment that constitutes a local exchange network. AT & T Corp. v. Iowa Util. Bd., 525 U.S. 366, 119 S.Ct. 721, 726, 142 L.Ed.2d 835 (1999). After the Act, however, states "may no longer enforce laws that impede competition, and the incumbent LECs are subject to a host of duties intended to facilitate market entry." Id. Among the duties imposed on incumbent LECs ("ILECs") are the obligations "to establish reciprocal compensation arrangements for the transportation of telecommunications," 47 U.S.C. § 251(b)(5), and to execute interconnection agreements with competitor LECs ("CLECs") setting forth the terms by which they will compensate each other for the use of the other's network. Id. at § 251(c).
The Act provides that ILECs may voluntarily negotiate the interconnection agreements with CLECs, and any party to the negotiation may request that the state commission charged with such duties may mediate any differences arising in the course of the negotiation. 47 U.S.C. § 252(a). If, within a given time, an agreement is not reached by negotiation or mediation, the Act provides for compulsory arbitration by the state commission. Id. at § 252(b). Once an agreement is reached, whether through negotiation or arbitration, it must be submitted to the state commission for approval. Id. at § 252(e). If the state commission fails or refuses to act on an agreement, the Federal Communications Commission ("FCC") will then issue an order preempting the state commission and shall assume the state commission's responsibilities under the Act. Id. at § 252(e)(5).
Pursuant to the aforementioned obligations, BellSouth entered into four separate interconnection agreements with the CLEC Defendants in late 1996 and early 1997, and each of the agreements was approved by the PSC. Each agreement provided for reciprocal compensation obligations only with regard to "Local Traffic." (Def. Ex. 2, § 5.8.1; Def. Ex. 3, § 2.2.1; Def. Ex. 4, § IV.A-B; Def. Ex. 5, § VI.B). Three of the agreements define "Local Traffic" as "[any] telephone call[s] that originate[s] in one exchange and terminate[s] in either the same exchange, or a corresponding Extended Area Service ... exchange." (Def. Ex. 3, § 2.2.1; Def. Ex. 4, § I.D; Def. Ex. 5, Att. B, ¶ 48). The fourth agreement defined "Local Traffic" as "calls between two or more Telephone Exchange service users where both Telephone Exchange Services bear NPA-NXX designations associated with the same local calling area ...."
After the initiation of the instant actions, the FCC handed down a ruling relevant to reciprocal compensation for ISP-bound traffic. See In the Matter of Implementation of the Local Competition Provisions of the Telecommunications Act of 1996; Inter-Carrier Compensation for ISP-Bound Traffic, 14 F.C.C.R. 3689, 1999 WL 98037 (1999) ("ISP Ruling"). The FCC concluded that "ISP-bound traffic is jurisdictionally mixed and appears to be largely interstate in nature," id. at ¶ 1, and decided to "analyze ISP traffic for jurisdictional purposes as a continuous transmission from the end user to a distant Internet site." Id. at ¶ 13. In so holding, the FCC rejected the idea that "ISP-bound traffic must be separated into two components: an intrastate telecommunications service ... and an interstate information service ...." Id. Because reciprocal compensation is mandated under 47 U.S.C. § 251(b)(5) only for local traffic, id. at ¶ 26, the FCC's ruling that ISP-bound traffic is jurisdictionally interstate removed such traffic from the reciprocal compensation requirement. Nonetheless, the FCC noted that "parties may voluntarily include this traffic within the scope of their interconnection agreements" as those agreements are "interpreted and enforced by the state commissions." Id. at ¶ 22.
On March 24, 2000, the United States Court of Appeals for the District of Columbia Circuit vacated the FCC's ISP Ruling for "want of reasoned decision-making." Bell Atlantic Tel. Co. v. FCC, 206 F.3d 1, 2 (D.C.Cir.2000). The court noted that the FCC's ruling "rest[ed] squarely on its decision to employ an end-to-end analysis for
The instant cases present a maze of constitutional, procedural, and contractual issues. The challenge is to navigate among historic legal structures and emerging legal doctrines when the Congress has provided no maps. In that setting a few courts have struggled, as will this one, to provide the parties with a predictable and sensible means of resolving disputes about business relationships that are important to the development of the Internet.
The PSC Defendants contend they are proper parties and argue that the Eleventh Amendment precludes suit against them, that the exception to the Eleventh Amendment established by Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), is inapplicable, and that the case must be dismissed because they are necessary or indispensable parties. Also, the PSC Defendants argue, in the alternative, that the 1996 Act violates the Tenth Amendment by coercing the states into administering a federal regulatory program.
BellSouth contends that the FCC's ruling that ISP-bound traffic is jurisdictionally interstate both undermines the conclusion of the PSC that such traffic terminates locally and requires reversal of the four PSC orders at issue. BellSouth further contends that the District of Columbia Circuit's decision in Bell Atlantic does not change that result because the FCC has already indicated that it believes it can provide the requested explanations and reach the same conclusion in a manner that will satisfy that court. The CLEC Defendants, for their part, argue that the Bell Atlantic decision completely disposes of BellSouth's position. Moreover, both the CLEC Defendants and the PSC Defendants maintain that the orders at issue are nonetheless valid under the FCC's ISP Ruling because those orders interpreted the interconnection agreements to require reciprocal compensation for ISP-bound traffic, which the FCC indicated was permissible. Finally the parties would have the court review the merits of the PSC's decision.
A. Preliminary Issues and Constitutional Challenges
By extending the scope of federal regulation into the field of local telecommunications competition, while simultaneously permitting the state commissions to play a narrow regulatory role in that field, the 1996 Act creates a scheme that the Supreme Court has described as "decidedly novel." AT & T Corp. v. Iowa Util. Bd., 525 U.S. 366, 119 S.Ct. 721, 733 n. 10, 142 L.Ed.2d 835 (1999). Some courts have characterized this scheme as "cooperative federalism," where "state commissions can exercise their expertise about the needs of the local market and local consumers, but are guided by the provisions of the Act and by the concomitant FCC regulations and checked by federal court review for consistency with federal provisions." Puerto Rico Tel. Co. v. Telecommunications Regulatory Bd. of Puerto Rico, 189 F.3d 1, 14 (1st Cir.1999) (citations omitted); see also Wisconsin Bell, Inc. v. Public Service Comm'n of Wisconsin, 57 F.Supp.2d 710, 711 (W.D.Wis.1999) (noting that the Act created "new universe of cooperative federalism") (internal quotations omitted). As this case bears out, however, the regulatory framework governing interconnection agreements often produces more vacillation than stability between federal and state interests, and this court thinks that "bipolar federalism" is a more apt description of the system created by the Act. This "bipolar federalism" makes it difficult to discern true congressional intent with regard to the enforcement and construction of interconnection agreements.
Indeed, the Act establishes a quagmire, pushing one further into the analytical abyss with each step toward resolution. To begin with, the Act is unclear as to the precise role state commissions are to play. As indicated, § 252 of the Act provides that state commissions may mediate, arbitrate, and ultimately approve interconnection agreements. The statute does not, however, expressly proclaim any power on the part of state commissions to enforce and interpret those agreements after they have been approved. Additionally, the Act does not expressly provide for federal judicial review of state commission orders enforcing and interpreting previously approved interconnection agreements. Section 252(e)(6) provides: "In any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court to determine whether the agreement or statement meets the requirements of section 251 of this title and [section 252]." Because § 252 specifically addresses only the process for negotiating, mediating, arbitrating, and approving interconnection agreements, § 252(e)(6) would appear at first blush to concern only determinations made during that process. Some courts, however, have found that the Act implicitly deals with these issues, maintaining that the power to approve interconnection agreements necessarily encompasses the power to interpret and enforce those agreements. See, e.g., Southwestern Bell Tel. Co. v. Public Util. Comm'n of Texas, 208 F.3d 475, 478 (5th Cir.2000).
With regard to these initial questions, the court faces two possibilities: The court can read the statute narrowly in this regard to preclude jurisdiction over the present actions, or, alternatively, the court can agree that § 252(e)(6) provides, implicitly if not expressly, jurisdiction to review the PSC's interpretive orders. The weight of judicial authority appears to lean in favor of the latter approach. Moreover, the FCC itself clearly views the statute as allowing state commissions to enforce and interpret interconnection agreements after they are approved. See ISP Ruling, at ¶ 22 (indicating that parties are bound by agreements "as interpreted and enforced by the state commissions").
Upon making that determination, another question arises: Does § 252(e)(6) require that the state commission, either itself or through its members, be a party to the federal lawsuit? Some courts have answered in the affirmative, finding that "Congress intended that the state commissions be parties to the federal suits reviewing their actions, just as the FCC is a party to suits seeking review of its actions." MCI Telecommunications Corp. v. Illinois Commerce Comm'n, 183 F.3d 558, 564, rehearing granted, 183 F.3d 567 (7th Cir.1999); Illinois Bell Tel. Co. v. Worldcom Tech., Inc., 179 F.3d 566, 571 (7th Cir.1999). See also Wisconsin Bell, 57 F.Supp.2d at 718 (finding that Seventh Circuit precedent required presence of state commission for court to exercise jurisdiction). Of course, a finding that the state commission must be a party immediately raises the very Eleventh Amendment issues currently facing the court.
The Eleventh Amendment provides that "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. While the text of the Amendment expressly speaks in terms of restricting the diversity jurisdiction of federal courts by barring suits against states that are brought by citizens of other states or countries, the Supreme Court has repeatedly acknowledged that the Amendment stands "not so much for what it says, but for the presupposition ... which it confirms." Kimel v. Florida Bd. of Regents, ___ U.S. ___, ___, 120 S.Ct. 631, 640, 145 L.Ed.2d 522 (2000) (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996)). The Eleventh Amendment repudiated the idea "that the jurisdictional heads of Article III superseded the sovereign immunity that the States possessed before entering the Union." College Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 2223, 144 L.Ed.2d 605 (1999). Accordingly, the Eleventh Amendment "effectively confers an immunity from suit" upon both states and state agencies. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993).
In light of this immunity, the Supreme Court has recognized only two circumstances in which an individual may sue a state directly. First, Congress may abrogate a state's Eleventh Amendment immunity under certain of its constitutional powers. College Savings, 119 S.Ct. at 2223; Seminole Tribe, 517 U.S. at 59, 116 S.Ct. 1114. Second, an individual may directly sue a state when the state waives its sovereign immunity by consenting to suit. College Savings, 119 S.Ct. at 2223. Additionally, the Court in Ex Parte Young carved out an exception to Eleventh Amendment immunity, allowing suits seeking prospective relief, such as an injunction, to be brought against state officials rather than the states themselves, where those suits challenge the constitutionality of official conduct. See generally Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); see also Metcalf & Eddy, Inc., 506 U.S. at 145,
To begin with, the Court's recent jurisprudence makes clear that the Congress could not have abrogated the states' sovereign immunity through the 1996 Act, a statute enacted pursuant to the Commerce Clause. Cf. 47 U.S.C. § 151 (creating FCC for "the purpose of regulating interstate and foreign commerce in communication"). In Seminole Tribe, the Court expressly overruled prior precedent that had allowed such abrogation under congressional power to regulate interstate commerce. See Seminole Tribe, 517 U.S. at 66, 116 S.Ct. 1114 (overruling Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989)). The Seminole Tribe of Florida had sued Florida under the Indian Gaming Regulatory Act ("IGRA"), enacted under the Indian Commerce Clause, which provided for the negotiation of Tribal-State compacts regulating gaming activities conducted by Indian tribes. The IGRA obliged the states to negotiate in good faith with Indian tribes, and it made that obligation judicially enforceable in federal court. The Supreme Court affirmed the dismissal of the lawsuit, holding that "[t]he Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction." Id. at 72-73, 116 S.Ct. 1114. Rather, Congress may abrogate a state's sovereign immunity only pursuant to the remedial powers granted by § 5 of the Fourteenth Amendment. See id. at 59, 116 S.Ct. 1114; see also College Savings, 119 S.Ct. at 2223. Because the 1996 Act is unquestionably premised on the Congress' Commerce Clause powers, not the remedial provisions of the Fourteenth Amendment, the Court's decision in Seminole Tribe precludes any argument that the Act abrogates the PSC's Eleventh Amendment immunity in the instant case. See, e.g., AT & T Communications of South Central States, Inc. v. BellSouth Telecomm., Inc., 43 F.Supp.2d 593, 599 (M.D.La.1999); Wisconsin Bell, Inc. v. Public Service Comm'n of Wis., 27 F.Supp.2d 1149, 1155 (W.D.Wis. 1998).
The Court's decision in College Savings similarly renders suspect any argument that the PSC implicitly waived its immunity by participating in the Act's regulatory scheme.
Underlying the Court's decision was the notion that waivers of constitutional rights must be unequivocal and voluntary, a concept which bears forcefully upon the present inquiry. Based on several prior decisions that had required an express waiver of Eleventh Amendment immunity to be unequivocal, the Court found "little reason to assume actual consent based upon the State's mere presence in a field subject to congressional regulation." Id. Additionally, noting that "[c]ourts indulge every reasonable presumption against waiver of fundamental constitutional rights," the Court saw no reason to treat the right of state sovereignty any differently than other rights guaranteed by the Constitution. Id. at 2229 (internal quotations omitted). Explaining that Seminole Tribe's holding clearly foreclosed abrogation of Eleventh Amendment immunity under Article I, the Court pronounced that "[f]orced waiver and abrogation are not even different sides of the same coin — they are the same side of the same coin." Id. Applying this rationale to the instant dispute reveals the inherent problems associated with any constructive waiver argument. Saying that the PSC waived its immunity by participating in the 1996 Act's regulatory scheme is, at bottom, nothing more than assuming consent based upon the PSC's presence in a field subject to congressional regulation. Similarly, finding that Congress intended to deem a state's participation in the scheme as a waiver of Eleventh Amendment immunity is very different from the state itself making "an `altogether voluntary' decision to waive its immunity." College Savings, 119 S.Ct. at 2228. Finally, given the Court's pronouncement that forced waiver and abrogation are essentially the same animal, it is worth mentioning that the facts of the instant case bear a striking resemblance to the facts of Seminole Tribe. Just as Congress in that case chose to leave to the states certain aspects of the federal regulatory scheme governing Indian gaming, so Congress here has left to the states the primary responsibility for approving, enforcing, and interpreting the mandatory interconnection agreements. Just as the IGRA made the states' obligations judicially enforceable in federal court, so the 1996 Act provides for federal judicial review of decisions made by state commissions. These factual similarities increase the problems associated with finding that the Act does not run afoul of the Eleventh Amendment.
College Savings nonetheless left open the possibility that Congress might condition the receipt of a federal gift on a state's waiver of immunity. See id. at 2231 (discussing Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), and South Dakota v. Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987)). In Petty, the Court held "that a bistate commission which had been created pursuant to an interstate compact (and which [the Court] assumed partook of state sovereign immunity) had consented to suit by reason of a suability provision attached to the congressional approval of the compact." Id. In Dole, the Court concluded "that Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and that acceptance of the funds entails an agreement to the actions." Id. The Court in College Savings distinguished these cases by noting that they involved gifts to the states, in the form of an interstate compact and federal funds, to which the states would not otherwise be entitled. Id.
Accepting this argument also proves problematic. First, the 1996 Act does not clearly condition a state's continued regulation over local telecommunications upon a waiver of Eleventh Amendment immunity, as is required to condition a gift or gratuity. In Dole, for example, the Court noted that if Congress desired to condition the receipt of federal funds, "it `must do so unambiguously ..., enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation.'" Dole, 483 U.S. at 207, 107 S.Ct. 2793 (quoting Pennhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981)). Section 252(e)(6) does not expressly provide for waiver of the state's immunity, and indeed does not mention suits against the state or its agencies at all. As such, a good argument exists that the statute does not provide sufficient notice of a condition such that a state should be deemed voluntarily to have waived immunity simply by participating in the Act's regulatory framework. Cf. College Savings, 119 S.Ct. at 2228 ("... [T]here is little reason to assume actual consent based upon the State's mere presence in a field subject to congressional regulation.").
Second, even assuming that the Act clearly conditions continued regulation on a waiver of immunity, the "choice" presented to the states could be considered so coercive as to destroy any voluntariness potentially associated with the waiver. In College Savings, the Court recognized that, in certain circumstances, Congress can threaten an activity so severely as to destroy the voluntariness of the state's acceptance of the condition attached. In federal funding cases, for example, the Court noted that "the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion." Id. (quoting Dole, 483 U.S. at 211, 107 S.Ct. 2793) (internal quotations omitted). Similarly, the inducement offered by Congress under the 1996 Act could be deemed so coercive as to render the PSC's decision to participate involuntary. As one court has stated: "Upon passage of the 1996 Act, the states were forced to either abide by the federal regulations or cede the power to regulate to the FCC — a classic Hobson's choice." AT & T Communications of the South Central States, Inc., 43 F.Supp.2d at 602. Unlike the activity at issue in College Savings, which the state "realistically could choose to abandon," College Savings, 119 S.Ct. at 2230, the activity in which the state has supposedly "chosen" to engage here is regulation over local industry that has traditionally been considered part of the state's police powers. AT & T Communications of the South Central States, 43 F.Supp.2d at 601. Accordingly, despite the 1996 Act's preemptive effect (or perhaps because of it), these cases could be said to present an even more coercive condition than that found in College Savings.
Finally, BellSouth, the CLEC Defendants, and the United States urge that the Young exception to Eleventh Amendment immunity be applied to exert jurisdiction over the individual PSC members if jurisdiction over the PSC itself is not attainable. As with the doctrines of abrogation and constructive waiver, however, the Court has limited the circumstances in which the Young exception can be applied. In Seminole Tribe, the Court found Young inapplicable because the IGRA set up a
As can easily be seen from the foregoing discussion, requiring state commissions to be parties to actions brought under § 252(e)(6) necessarily places the 1996 Act on a collision course with the Supreme Court's Eleventh Amendment jurisprudence. The court is cognizant that other courts facing these issues have distinguished the relevant Supreme Court opinions and have finessed the problems raised above. See, e.g., Michigan Bell Tel. Co. v. Climax Tel. Co., 202 F.3d 862, 867-68 (6th Cir.2000) (finding that Ex Parte Young provides valid exception to state commission's Eleventh Amendment immunity); MCI, 183 F.3d at 564-67 (finding that Congress intended state commissions to be parties to federal lawsuits "just as the FCC is a party to suits seeking review of its actions" and that states constructively waive immunity by accepting to participate in federal scheme);
The source of these problems in large part is an assumption that the state commissions have to be made parties for suits under § 252(e)(6) to proceed. The court notes, however, that "[t]he starting point for all statutory interpretation is the language of the statute itself." United States v. DBB, Inc., 180 F.3d 1277, 1281 (11th
The court recognizes that this view also runs contrary to conclusions reached by other courts. Most notable are the decisions in MCI and Illinois Bell, where the Seventh Circuit indicated that state commissions are necessary parties to § 252(e)(6) suits. Those decisions rested essentially on two points: (1) section 252(e)(6) provides for "Review of State commission actions"; and (2) the FCC is party to suits seeking review of its actions. MCI, 183 F.3d at 564; Illinois Bell, 179 F.3d at 570-71. Neither of these points is persuasive. First, that § 252(e)(6) is captioned "Review of State commission actions" does not necessarily mean that the state commissions must be parties to the suits. Rather, this phrase could mean simply that "Congress envisioned the review of state commission actions to be similar to garden variety appeals from trial courts to appellate courts or to actions for judicial review of private arbitrations." Wisconsin Bell, 57 F.Supp.2d at 718. In neither of the mentioned proceedings is the first line decision-maker considered a necessary party to the review of its rulings. See id. Second, the plain language of the statute nowhere states or suggests that Congress intended actions brought under § 252(e)(6) to mirror actions reviewing the decisions of the FCC. Indeed, § 252(e)(6) provides an altogether different procedure for review. FCC orders are reviewed by the Courts of Appeals. See 47 U.S.C. § 402; 28 U.S.C. § 2342; see also FCC v. ITT World Communications, Inc., 466 U.S. 463, 468, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984). Actions seeking such review are therefore governed by the Federal Rules of Appellate Procedure, which require that the agency that issued the order under review be named as a respondent. Fed. R.App. P. 15(a). Section 252(e)(6) on the other hand provides for review in the district courts, before a single judge rather than an appellate panel, and the Federal Rules of Appellate Procedure do not apply. See Fed. R.App. P. 1(a)(1) ("These rules govern procedure in the United States courts of appeals."). Furthermore, the court is aware of no comparable rule that requires the state
Nonetheless, the PSC Defendants are parties to the instant actions and seek dismissal on constitutional grounds. The court concludes, however, that the nature of the constitutional issues involved and the concomitant problems make clear the soundness of the "fundamental and longstanding principle of judicial restraint" requiring "that courts avoid reaching constitutional questions in advance of the necessity of deciding them." Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988). Because the PSC Defendants are not necessary to the court's jurisdiction, and because keeping them in these actions could prove far more detrimental to all interests concerned, the court concludes that they should be dismissed from the lawsuit pursuant to Federal Rule of Civil Procedure 21. Rule 21 provides that "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Fed. R.Civ.P. 21 (emphasis added). Although the rule is titled "Misjoinder and Non-Joinder of Parties," courts have recognized that "it may be used to organize problematical issues other than joinder problems." Official Comm. of Unsecured Creditors v. Shapiro, 190 F.R.D. 352, 355 (E.D.Pa.2000); see also Grow v. City of Milwaukee, 84 F.Supp.2d 990, 995-96 (E.D.Wis.2000) (dismissing sua sponte named defendant). It is well recognized that the decision to drop a party under Rule 21 "is left to the sound discretion of the trial court," Lampliter Dinner Theater, Inc. v. Liberty Mutual Ins. Co., 792 F.2d 1036, 1045 (11th Cir.1986), but that discretion is limited by Rule 19(b) because the court may not proceed without indispensable parties. See Lenon v. St. Paul Mercury Ins. Co., 136 F.3d 1365, 1371 (10th Cir.1998). The court must therefore determine whether the PSC Defendants are indispensable parties to these lawsuits.
Rule 19 prescribes four factors to consider in evaluating the indispensability of a party: (1) to what extent a judgment rendered in the party's absence might be prejudicial to the party or other parties; (2) the extent to which any prejudice can be lessened by shaping relief; (3) whether a judgment rendered in the party's absence will be adequate; and (4) whether the plaintiff will have an adequate remedy if the party does not remain in the lawsuit. Fed.R.Civ.P. 19(b). The PSC Defendants argue that these factors weigh in favor of a finding of indispensability because the PSC will be severely prejudiced if these lawsuits proceed without it and because BellSouth would have an adequate remedy in state court. These arguments are unavailing. The court perceives no prejudice by allowing these actions to proceed without the PSC Defendants. While there exists a risk that the court may declare the PSC orders to be invalid, a justiciable controversy nonetheless exists because BellSouth and the CLEC Defendants are on opposing sides of that issue. Therefore, the interest of the PSC in having its rulings upheld is adequately represented. Additionally, the court can fashion appropriate relief by issuing a declaration and an injunction binding both BellSouth and the CLEC Defendants, the real parties in interest to the contract dispute before the court. That the PSC would not also be bound is irrelevant because, if the court declares the PSC orders invalid, there is no place for the PSC to go in attempting to enforce the orders but back to federal court. As demonstrated, the 1996 Act preempts the states with regard to local telecommunications competition, see AT & T Corp., 119 S.Ct. at 730 n. 6, and it expressly takes away any state court jurisdiction over the actions of the state commissions. 47 U.S.C. § 252(e)(4); see also Illinois Bell, 179 F.3d at 571 (concluding
For the foregoing reasons, the court concludes that the PSC Defendants are neither necessary nor indispensable parties and that their presence in the instant actions poses problematic constitutional questions that are best avoided. Accordingly, the court sua sponte DISMISSES the PSC Defendants from these actions. As a result, the court need not reach the constitutional arguments raised by the PSC Defendants.
B. Reciprocal Compensation for ISP-Bound Traffic
The heart of the present disputes involves two questions: First, did the PSC orders violate federal law, as reflected in the 1996 Act and in the FCC's rules and regulations? Second, did the PSC correctly interpret the interconnection agreements under Georgia law?
At the core of BellSouth's arguments lies the ISP Ruling, which, for a time anyway, made clear that calls to ISPs constitute jurisdictionally mixed, largely interstate traffic. ISP Ruling, at ¶¶ 1, 18-19. Moreover, the FCC expressly rejected the distinction between telecommunications services and information services made by the PSC in the instant orders, concluding instead that, for jurisdictional purposes, ISP-bound traffic is "a continuous transmission from the end user to a distant
In any event, the court finds that it need not resolve the debate over whether ISP-bound traffic is local or interstate in nature because, despite BellSouth's statements to the contrary, the PSC permissibly interpreted the interconnection agreements at issue to require reciprocal compensation for calls made to ISPs.
Moreover, the FCC delineated a list of factors that the state commissions may wish to consider in construing the contracts, including: (1) whether ILECS serving ISPs have done so out of intrastate or interstate tariffs; (2) whether revenues associated
Turning to the second inquiry, the court similarly finds, under the aforementioned arbitrary-and-capricious standard, that the PSC orders do not run afoul of state contract law. Georgia law provides: "The cardinal rule of construction is to ascertain the intention of the parties. If that intention is clear and it contravenes no rule of law and sufficient words are used to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary rules of construction." O.C.G.A. § 13-2-3. Thus, unambiguous contracts are to be enforced as written, with the court looking only to the contract itself to find the parties' intent. Georgia Ass'n of Educators, Inc. v. Paragon Prod., Inc., 238 Ga.App. 681, 682, 520 S.E.2d 37 (1999). Where intent cannot be gleaned solely from the terms of the contract, however, Georgia law provides statutorily prescribed rules of construction to facilitate resolving any ambiguities. O.C.G.A. § 13-2-2; see also U.S. Enter. v. Mikado Custom Tailors, 250 Ga. 415, 416, 297 S.E.2d 290 (1982).
As indicated, each of the interconnection agreements at issue provides for reciprocal compensation obligations only with regard to "Local Traffic." (Def. Ex. 2, § 5.8.1; Def. Ex. 3, § 2.2.1; Def. Ex. 4, § IV.A-B; Def. Ex. 5, § VI.B). The term "Local Traffic" is defined in the agreements as follows: (1) "... any telephone call that originates in one exchange and terminates in either the same exchange, or a corresponding Extended Area (EAS) exchange" (Def. Ex. 3, § 2.2.1; Def. Ex. 4, § I.D); (2) "... calls that originate in one exchange and terminate in either the same exchange, or a corresponding Extended Area Service ("EAS") exchange" (Def.Ex. 5, Att.B, ¶ 48); or (3) "... calls between two or more Telephone Exchange service users where both Telephone Exchange Services bear NPA-NXX designations associated with the same local calling area of the incumbent LEC" (Def.Ex. 2, § 1.40). The last definition, which comes from the interconnection between BellSouth and WorldCom, is unambiguous, and the parties' intent must therefore be derived from the contract itself. Paragon, 238 Ga.App. at 682, 520 S.E.2d 37. There is no dispute that, as determined by the PSC, ISP-bound calls bear NPA-NXX designations associated with BellSouth's local calling area. See WorldCom Order, at 5. As such, calls made to ISPs fall within the contractual definition, and the PSC's conclusion to that effect was not arbitrary and capricious. See id. (finding that same NPA-NXX designations "alone causes the calls to meet the definition of `local traffic' contained in Section 1.40 of the ... Agreement, and therefore that reciprocal compensation is owed for the transport and
The other three contracts are not so clear. In each, what constitutes "Local Traffic" turns upon the meaning given to the word "terminate." The agreements neither define this term nor specifically mention the Internet or ISP-bound traffic. Because the meaning of "terminate" cannot be conclusively explained by looking at the contract itself, the decision-maker must resort to the statutory rules of construction. The most immediately pertinent of these is found in O.C.G.A. § 13-2-2(2): "Words generally bear their usual and common signification; but technical words, words of art, or words used in a particular trade or business will be construed, generally, to be used in reference to this peculiar meaning." Although not specifically referenced in the other three orders, the PSC's WorldCom Order acknowledges that "as the term has been and is commonly employed in the telecommunications industry, a call placed over the public switched telecommunications network is considered to be `terminated' when it is delivered to the telephone exchange service number (with the NPA-NXX designation) that has been called, regardless of the identity of the called party." WorldCom Order, at 8. See also 47 C.F.R. § 57.701(d) (defining "termination" as "the switching of local telecommunications traffic at the terminating carrier's end office switch, or equivalent facility, and delivery of such traffic to the called party's premises"). As stated by the Bell Atlantic court, "[c]alls to ISPs appear to fit this definition: the traffic is switched by the LEC whose customer is the ISP and then delivered to the ISP, which is clearly the `called party.'" Bell Atlantic, 206 F.3d at 4. Considering the "peculiar meaning" given to the term "terminate" in the telecommunications industry, the court cannot say that the PSC acted arbitrarily or capriciously in concluding that the interconnections agreements required reciprocal compensation for ISP-bound traffic.
Finally, Georgia law provides that all circumstances surrounding the contract may be proved and any ambiguities may be explained. O.C.G.A. § 13-2-2(1). As indicated, the PSC looked to the manner in which BellSouth treats ISP calls for purposes of intrastate or interstate tariffs, revenues, billing, and the manner in which such calls are handled. Moreover, contrary to BellSouth's argument that decades of federal precedent establish that ISP-bound traffic is non-local, the FCC has expressly noted that its "policy of treating ISP-bound traffic as local for purposes of interstate access charges would, if applied in the separate context of reciprocal compensation, suggest that such compensation is due for that traffic." ISP Ruling, at ¶ 25. All of these things suggest strongly that, at the time the interconnection agreements were executed, the parties, including BellSouth, viewed ISP-bound traffic to be local and intended that traffic to be covered by the reciprocal compensation provision of the agreements. Otherwise, it appears that none of the parties would be compensated for handling ISP calls originating from other carriers, a result that this court finds difficult to believe any of the parties would have intended. The contracts do not segregate or set apart ISP-bound traffic in any manner, and the court cannot find that the PSC's
For the foregoing reasons, the court finds that the PSC Defendants are not necessary or indispensable parties to the instant actions and DISMISSES them sua sponte from these lawsuits. Additionally, the court finds that the PSC orders under review neither violate federal law nor arbitrarily and capriciously interpret the contracts under state law. As such, reciprocal compensation is required under the interconnection agreements for ISP-bound traffic. The court hereby DENIES BellSouth's requests for declaratory and injunctive relief.
Southwestern Bell, 208 F.3d at 478 n. 2.