BellSouth Telecommunications v. MCImetro Access , 278 F.3d 1223 ( 2002 )


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  •                                                           [PUBLISH]
    
               IN THE UNITED STATES COURT OF APPEALS
    
                     FOR THE ELEVENTH CIRCUIT                FILED
                                                    U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                                                        JANUARY 10, 2002
                                                       THOMAS K. KAHN
                             No. 00-12809                   CLERK
    
    
    
                   D. C. Docket No. 99-00248-CV-JOF-1
    
    BELLSOUTH TELECOMMUNICATIONS, INC.,
    
                                            Plaintiff-Counter-Defendant-
                                            Appellant-Cross-Appellee,
    
    UNITED STATES OF AMERICA,
    
                                            Intervenor-Appellant,
    
                                 versus
    
    MCIMETRO ACCESS TRANSMISSION SERVICES, INC.,
    
                                            Defendant-Counter-
                                            Claimant-Appellee,
    
    GEORGIA PUBLIC SERVICE COMMISSION,
    ROBERT B. BAKER, JR., in his
    official capacity as Chairman,
    LAUREN “BUBBA” MCDONALD, in his
    official capacity as Commissioner,
    ROBERT DURDEN, in his official
    capacity as Commissioner,
    STANCIL O. WISE, in his official
    capacity as Commissioner,
                                             Defendants-Appellees-
                                             Cross-Appellants.
    
    
    
                              No. 00-12810
    
    
                    D. C. Docket No. 99-00249 CV-JOF-1
    
    BELLSOUTH TELECOMMUNICATIONS, INC.,
    
                                             Plaintiff-Counter-Defendant-
                                             Appellant-Cross-Appellee,
    
    UNITED STATES OF AMERICA,
    
                                             Intervenor-Appellant,
    
                                  versus
    
    WORLDCOM TECHNOLOGIES, INC.,
    a successor in interest to MFS
    INTELENET OF GEORGIA, INC.,
    
                                             Defendant-Counter-
                                             Claimant-Appellee,
    
    E.SPIRE COMMUNICATIONS, INC.,
    formerly known as American
    Communications Services, Inc.,
    NEXTLINK GEORGIA, INC.,
    TELEPORT COMMUNICATIONS
    ATLANTA, INC.,
    
    
                                             Defendants-Appellees,
    
                                     2
    GEORGIA PUBLIC SERVICE COMMISSION,
    ROBERT B. BAKER, JR., in his
    official capacity as Chairman,
    LAUREN “BUBBA” MCDONALD, in his
    official capacity as Commissioner,
    ROBERT DURDEN, in his official
    capacity as Commissioner,
    STANCIL O. WISE, in his official
    capacity as Commissioner,
    
                                                                Defendants-Appellees-
                                                                Cross-Appellants,
    
    ICG TELECOM GROUP, INC.,
    
                                                                Defendant.
    
    
    
    
                          Appeals from the United States District Court
                              for the Northern District of Georgia
    
                                         (January 10, 2002)
    
    
    Before TJOFLAT, BARKETT and POLITZ*, Circuit Judges,
    
    
    
    *Honorable Henry A. Politz, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
    
    
    
    
                                                    3
    TJOFLAT, Circuit Judge:
    
          In these consolidated appeals, we are asked to review two orders of the
    
    Georgia State Public Commission (the “GPSC”), which interpreted contracts
    
    between telecommunications carriers. The contracts were interconnection
    
    agreements mandated by the federal Telecommunications Act of 1996, 110 Stat.
    
    56, 56 (1996). The United States District Court for the Northern District of
    
    Georgia, believing that the GPSC had the authority to interpret these agreements
    
    under that statute, affirmed the orders. We find no statutory authority for the
    
    action that the GPSC took in these cases and therefore reverse.
    
    
    
                                              I.
    
    
    
                                             A.
    
    
    
          When telephone companies became part of the American scene in the early
    
    part of the twentieth century, local telephone companies competed with one
    
    another for customers. See H.R. Rep. No. 101-204, at 50 (1996), reprinted in 1996
    
    U.S.C.C.A.N. 10, 13. Competing telephone companies did not interconnect their
    
    systems; in order for a customer of one company to call a customer of another
    
    
                                              4
    company, he had to subscribe to the other company. Customers found this
    
    scenario unsatisfactory, and eventually a company emerged in each locality that
    
    provided all of the local service. Id. Thus, when Congress passed the first major
    
    telecommunications law, the Communications Act of 1934, local telephone service
    
    was a “natural monopoly.” AT&T Corp. v. Iowa Utils. Bd., 
    525 U.S. 366
    , 371,
    
    
    119 S. Ct. 721
    , 726, 
    142 L. Ed. 2d 835
     (1999); Stephen Breyer, Regulation and Its
    
    Reform 291 (1982).
    
          A natural monopoly exists, “[i]f the entire demand within a relevant market
    
    can be satisfied at lowest cost by one firm rather than by two or more.” Richard A.
    
    Posner, Natural Monopoly and Its Regulation, 21 Stan. L. Rev. 548, 548 (1969).
    
    The notion that local telephone service was a natural monopoly was driven in large
    
    part by technology: In 1934, local telephone service required local exchanges and
    
    loops consisting of cables under the ground or wires strung on telephone poles, and
    
    competition would have required the inconvenience and duplication involved in
    
    having several exchanges and numerous extra sets of wires and poles. Breyer at
    
    291-92. In the Communications Act of 1934, Congress did not try to break up the
    
    monopolies this technology created, but rather tried to harness it through
    
    regulation. As one leading treatise put it, “[t]he 1934 Communications Act
    
    presumed that [the] end-to-end monopoly would be shadowed by end-to-end
    
    
                                             5
    regulation.” Peter W. Huber, Michael K. Kellogg & John Thorne, Federal
    
    Telecommunications Law § 2.1.3 (2d ed. 1999). The regulation would be provided
    
    by the Federal Communications Commission (the “FCC”).
    
           The Communications Act gave the FCC the responsibility of regulating
    
    interstate and foreign commerce in wire and radio communication.
    
    Communications Act of 1934 §§ 1, 4-5, 47 U.S.C. §§ 151, 154-55 (1991). The Act
    
    did not grant the FCC jurisdiction to regulate local telephone service, however.
    
    Instead, the Act expressly provided that local telephone service would fall under
    
    the exclusive jurisdiction of state commissions. Communications Act of 1934, ch.
    
    652, § 221(b), 48 Stat. 1064, 1080, repealed by Telecommunications Act of 1996,
    
    Title VI, § 601(b)(2), Pub. L. No. 104-104, 110 Stat. 56, 143.1 Free from federal
    
    regulation, “[s]tates typically granted an exclusive franchise in each local service
    
    area to a local exchange carrier (LEC), which owned, among other things, the local
    
    loops (wires connecting telephones to switches), the switches (equipment directing
    
    calls to their destinations), and the transport trunks (wires carrying calls between
    
    
    
          1
           According to the words of the 1934 Act,
          Nothing in this Act shall be construed to apply, or to give the Commission
          jurisdiction, with respect to charges, classifications, practices, services, facilities,
          or regulations for or in connection with wire telephone exchange service, even
          though a portion of such exchange service constitutes interstate or foreign
          communication, in any case where such matters are subject to regulation by a
          State commission or by local governmental authority.
    
                                                      6
    switches) that constitute a local exchange network.” AT&T Corp., 525 U.S. at
    
    371, 119 S. Ct. at 726, 
    142 L. Ed. 2d 835
    .
    
    
    
                                                  B.
    
    
    
           As time passed, the paradigmatic underpinnings of this regulatory structure
    
    began to crumble. Technological developments, like optic fiber transmission and
    
    mobile telephones, created the possibility that local telephone service might be
    
    provided without switches or loops. Breyer at 292; Huber et al. § 2.1.2.2 Perhaps
    
    more importantly, policymakers increasingly saw market competition as a more
    
    efficient method of providing public services than state regulation and sought
    
    deregulation of these services in conjunction with this mindset. See e.g., Huber et
    
    al. § 2.1.2 (“Policy makers have also come to recognize that even if markets are
    
    less than perfectly competitive, regulation is often ineffectual or worse because of
    
    inadequate information about the true costs of efficient production.”). Congress
    
    
    
           2
             In 1982, Stephen Breyer, now an Associate Justice of the United States Supreme Court,
    expressed doubt that new technologies alone would spell the end of local telephone service
    monopolies: “While it has been argued that technological developments such as optic fiber
    transmission or mobile land telephone service may make competition possible in the future, or
    may allow firms to bypass local exchanges when they offer long-distance service, these
    developments seem speculative enough that new firms have not asked to enter the local
    business.” Breyer at 292.
    
                                                  7
    consequently enacted the Federal Telecommunications Act of 1996 (the “Act”) “to
    
    promote competition and reduce regulation in order to secure lower prices and
    
    higher quality services for American telecommunications consumers and
    
    encourage the rapid deployment of new telecommunications technologies.”
    
    Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56, 56 (1996).
    
          To effectuate its goal of promoting competition in local telephone service,
    
    Congress needed to do more than simply remove all regulatory barriers to market
    
    entry. After all, local telephone service, as mentioned, is a natural monopoly.
    
    Congress, therefore, had to take affirmative steps within the 1996 Act to counteract
    
    those unique elements of telephony that deter competition, specifically the high,
    
    fixed initial cost and the need for all customers to interconnect with one another.
    
    Its solution was the establishment of a complex regulatory regime in which
    
    incumbent LECs (“ILECs”) would share access to loops and exchanges with
    
    competing LECs (“CLECs”).
    
          The centerpieces of this regime are sections 251 and 252 of the Act, codified
    
    at 47 U.S.C. §§ 251-252. Section 251 imposes various duties on all LECs,
    
    including the duty not to prohibit the resale of its telecommunication services; the
    
    duty to provide number portability; the duty to provide dialing parity to other
    
    LECs; the duty to afford other LECs access to poles, ducts, conduits, and rights-of-
    
    
                                              8
    way; and most significantly, the duty to establish reciprocal compensation
    
    arrangements for the transport and termination of telecommunications. 47 U.S.C.
    
    § 251(b). Section 251 imposes additional obligation on ILECs. Specifically for
    
    the purpose of this case, an ILEC is required to interconnect its network with that
    
    of any requesting telecommunications carrier “on rates, terms, and conditions that
    
    are just, reasonable, and nondiscriminatory.” 47 U.S.C. §§ 251(c)(2).3 ILECs also
    
    have a duty to negotiate in good faith the agreements establishing the rates, terms,
    
    and conditions of these interconnections. 47 U.S.C. § 251(c)(1).
    
           The exact process for establishing these agreements is detailed in section
    
    252 of the Act, now 47 U.S.C. § 252. Agreements can be formed in two different
    
    ways: voluntary negotiation or compulsory arbitration. After an ILEC receives a
    
    request from a CLEC for interconnection, the two parties may enter into a
    
    voluntary agreement to effectuate the transaction. 47 U.S.C. § 252(a)(1). If the
    
    parties so request, a mediator can be provided by the “State commission” to help
    
    
    
    
           3
             Although not pertinent to this case, ILECs are also obligated “to provide . . .
    nondiscriminatory access to network elements on an unbundled basis at any technically feasible
    point on rates, terms, and conditions that are just, reasonable, and nondiscriminatory,” 47 U.S.C.
    § 251(c)(3), and “to offer for resale at wholesale rates any telecommunications service that
    [they] provide[] at retail to subscribers who are not telecommunications carriers.” 47 U.S.C.
    § 251(c)(4)(A).
    
                                                    9
    negotiations. 47 U.S.C. § 252(a)(2).4 During the period from the 135th to the
    
    160th day after the ILEC receives the applicable request, either party may petition
    
    the State commission to arbitrate any open issues if an agreement cannot be
    
    reached voluntarily. 47 U.S.C. § 252 (b)(1). Upon hearing from both parties and
    
    requesting any further information it needs, the State commission will resolve any
    
    issue set forth in the petition and provide a schedule for implementation of its
    
    ruling. 47 U.S.C. § 252(c).
    
           State commissions must base their rulings on standards prescribed in 47
    
    U.S.C. § 252(d). Specifically, rates for interconnection or network elements must
    
    be nondiscriminatory and based on the cost of providing the interconnection, but
    
    may include a reasonable profit. 47 U.S.C. § 252(d)(1). Similarly, reciprocal
    
    compensation for the transport and termination of phone calls over the parties’
    
    networks must be set at rates that allow each party to recover its costs, including
    
    the additional cost of terminating such calls. 47 U.S.C. § 252(d)(2).
    
           After an agreement between an ILEC and a CLEC is adopted by either
    
    negotiation or arbitration, the agreement must still be submitted to the State
    
    commission for approval, even if the agreement was a product of an arbitration
    
    
    
           4
              Congress uses the words, “State commission,” to refer to the commission created by the
    state, in which the LECs are located, to regulate telecommunications.
    
                                                  10
    conducted by that same State commission. 47 U.S.C. § 252(e)(1). The standard of
    
    review for an agreement produced by arbitration is different from that for one
    
    reached through negotiation. An agreement adopted by arbitration will only be
    
    rejected if it conflicts with one of the statutory duties of LECs enumerated in
    
    section 251 of the 1996 Act or with a regulation prescribed by the FCC in
    
    accordance with the 1996 Act. 47 U.S.C. § 252(e)(2)(B). An agreement reached
    
    through negotiation can be rejected, however, if it discriminates against a third-
    
    party LEC or if it is not consistent with “the public interest, convenience, and
    
    necessity.” 47 U.S.C. § 252(e)(2)(A).
    
          The broadness of these parameters would seem to bestow tremendous
    
    leeway on state commissions when they review agreements made pursuant to
    
    section 252. Indeed, state commissions are free to establish and enforce state law
    
    requirements in their review of these federally mandated agreements. 47 U.S.C.
    
    § 252(e)(3). Nevertheless, the 1996 Act places several checks on the state
    
    commissions’ authority. For instance, if a State commission fails to carry out its
    
    responsibilities under the Act, the FCC can preempt that commission’s jurisdiction
    
    and resolve the matter itself. 47 U.S.C. § 252(e)(5). Furthermore, if the State
    
    commission does conduct a timely review of an agreement, the review is
    
    circumscribed by the dictates of the FCC, which, by the express terms of the
    
    
                                              11
    Communications Act of 1934, has the power to “prescribe such rules and
    
    regulations as may be necessary in the public interest to carry out the provisions of
    
    [either the 1934 Act or the 1996 Act],” including rules to guide state commissions
    
    in their judgments. 47 U.S.C. § 201(b); AT&T Corp., 525 U.S. at 377-86, 119 S.
    
    Ct. at 729-33, 
    142 L. Ed. 2d 835
     (holding that the 1996 Act merely amended the
    
    1934 Act, and thus the non-repealed sections of the 1934 Act -- in particular, 47
    
    U.S.C. § 201(b) -- are applicable to the 1996 Act). Even after a state commission
    
    issues its ruling, accepting or rejecting an interconnection agreement, a party can
    
    still seek relief in a federal district court if it believes that the commission’s order
    
    is inconsistent with sections 251 and 252 of the 1996 Act. 47 U.S.C. § 252(e)(6).
    
    In sum, the 1996 Act ensures that there is federal oversight over all of a State
    
    commission’s actions with regard to the approval of an interconnection agreement.
    
          Once a State commission approves an interconnection agreement, however,
    
    the 1996 Act does not obligate it to perform any further duties. The State
    
    commission has satisfied its duty to ensure that the interconnection agreement
    
    serves the public interest. Presumably, the approved interconnection agreement,
    
    which is then a binding contract between the parties, establishes the terms of their
    
    relationship.
    
    
    
    
                                                12
                                                  C.
    
    
    
           This case involves two interconnection agreements executed by BellSouth
    
    Telecommunications, Inc. (“BellSouth”). BellSouth executed the first agreement
    
    on August 30, 1996, with WorldCom Technologies, Inc. (“WorldCom”).5 The
    
    second agreement was executed on March 7, 1997, with MCImetro Access
    
    Transmission Services, Inc. (“MCImetro”). Pursuant to the 1996 Act, these
    
    agreements were submitted for approval or rejection to the State commission, in
    
    this case, the Georgia Public Service Commission (the “GPSC”), and were
    
    subsequently approved. Both agreements provide that the parties will receive
    
    reciprocal compensation for local traffic only.6 According to the BellSouth-
    
    WorldCom Agreement, “‘Local Traffic’ refers to 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
    
           5
             WorldCom is the successor in interest to MFS Intelenet of Georgia, Inc (“MFS”).
    BellSouth actually executed the agreement with MFS. For convenience, we refer to MFS as
    WorldCom.
           6
               See BellSouth-WorldCom Agreement § 5.8.1 (“Reciprocal Compensation applies for
    transport and termination of Local Traffic (including [ExtendedArea Service (“EAS”)] and EAS-
    like traffic) billable by [BellSouth] or MFS which a Telephone Exchange Service Customer
    originates on [BellSouth]’s or MFS’ network for termination on the other Party’s network.”);
    BellSouth-MCImetro Agreement § 2.2.1 (“The Parties shall bill each other reciprocal
    compensation at the rates set forth for Local Interconnection in this Agreement and the Order of
    the GPSC.”).
    
                                                  13
    incumbent LEC or other authorized area (e.g., Extended Area Service Zones in
    
    adjacent local calling areas).” The BellSouth-MCImetro Agreement similarly
    
    defines “local traffic” as “any telephone call that originates in one exchange and
    
    terminates in either the same exchange, or a corresponding Extended Area (EAS)
    
    exchange.”
    
          Under both agreements, compensation is provided when a party terminates
    
    the call made by another party’s subscriber. For example, according to the
    
    BellSouth-WorldCom Agreement, if a WorldCom subscriber calls a BellSouth
    
    subscriber, the call terminates on BellSouth’s network and WorldCom must pay
    
    BellSouth accordingly; likewise, BellSouth must compensate WorldCom every
    
    time that a BellSouth subscriber calls a WorldCom subscriber. The same
    
    principles hold true with regard to the BellSouth-MCImetro Agreement: BellSouth
    
    and MCImetro compensate each other when one of their subscribers calls a
    
    subscriber on the other’s network.
    
           The actual amount of compensation depends on the period of time that
    
    subscribers are on the phone, with rates being established on a per-minute basis.
    
    This type of arrangement can lead to discrepancies, if the subscribers of one LEC,
    
    e.g., BellSouth, call those of another LEC, e.g., WorldCom or MCImetro, for
    
    longer periods of time than the latter call the former. Such a situation developed
    
    
                                             14
    soon after the agreements were executed, when WorldCom and MCImetro began
    
    billing BellSouth for calls made by BellSouth customers to internet service
    
    providers (“ISPs”) who were customers of WorldCom and MCImetro. Because
    
    people tend to spend long periods of time on the internet, these calls to ISPs often
    
    ran for long periods of time and represented financial boons to the CLECs that
    
    terminated them.
    
          On August 12, 1997 BellSouth sent all CLECs with whom it had
    
    agreements, including both WorldCom and MCImetro, a letter informing them that
    
    it did not consider calls to Enhanced Service Providers (ESPs), including ISPs, to
    
    be local traffic and therefore would “neither pay, nor bill, local interconnection
    
    charges for traffic terminated to an ISP.” In response, WorldCom and MCImetro
    
    filed separate complaints with the GPSC in late 1997, alleging that ISP-bound calls
    
    were local in nature and thus subject to reciprocal compensation under their
    
    respective agreements with BellSouth.7
    
          On December 28, 1998, the GPSC disposed of the two complaints with
    
    separate orders, which are identical for present purposes. Noting in its order
    
    regarding the BellSouth-WorldCom Agreement that “a call to an ISP is placed
    
    
    
          7
          WorldCom filed its complaint on October 10, 1997; MCImetro filed its complaint on
    November 14, 1997.
    
                                               15
    using a local telephone number” and “[w]hatever services the ISP . . . provides are
    
    irrelevant to the fact that the call has terminated locally,” the GPSC concluded that
    
    calls placed by Bell South users to ISPs who were customers of WorldCom were
    
    local calls and therefore subject to reciprocal compensation under the agreement.8
    
    The GPSC found similar facts applicable to the BellSouth-MCImetro Agreement:
    
           The evidence in this case shows that the ISP traffic consists of circuit-
           switched cells that terminate with the customer who happens to be an
           information service provider or Internet service provider. The manner
           in which BellSouth handles the calls, and the manner in which
           MCImetro handles the calls, is the same as the manner in which both
           companies handle local calls carried over their netwroks to any other
           customers who happened to be on the MCImetro network. The only
           distinction that can be drawn is that after the call is carried to the ISP,
           the ISP then provides access to the packet-switched Internet through
           the ISP’s own local server. This is a distinction without a difference,
           so far as BellSouth and MCImetro are concerned as they carry the
           circuit-switched call to the ISP.
    
    Not surprisingly, the GPSC reached the same conclusion, namely “that ISP traffic
    
    is local within the definition of the Interconnection Agreement, so both parties are
    
    contractually obligated to pay reciprocal compensation for ISP traffic.”9
    
    
    
    
           8
             In its order regarding the BellSouth-WorldCom Agreement, the GPSC actually upheld
    and affirmed a May 29, 1998 ruling by a Hearing Officer, for which the full commission granted
    review via an order on August 20, 1998.
           9
            MCImetro’s complaint about BellSouth’s refusal to compensate MCImetro for calls
    made by BellSouth customers to MCImetro subscribers who are ESPs was one of ten counts
    submitted by MCImetro to the GPSC that attest that BellSouth violated the 1996 Act.
    
                                                  16
           On January 27, 1999, BellSouth instituted the two actions in the district
    
    court that are now before us.10 Predicating the district court’s jurisdiction on 47
    
    U.S.C. § 252(e)(6) and 28 U.S.C. § 1331, BellSouth sought the following relief:
    
    (1) vacation of the GPSC’s orders; (2) a declaratory judgment stating, among other
    
    things, that calls transmitted through an ISP over the Internet are interstate in
    
    nature and are not local traffic;11 and (3) an order enjoining the GPSC and its
    
    commissioners from enforcing the orders. Both WorldCom and MCImetro filed
    
    counterclaims in their respective cases seeking an order requiring BellSouth to
    
    comply with the GPSC’s orders.
    
           On May 3, 2000, the district court entered an order denying BellSouth relief
    
    and requiring it to pay reciprocal compensation for calls made to ISPs, as directed
    
    by the GPSC.12 Basing its jurisdiction on 47 U.S.C. § 252(e)(6), the court found
    
    
           10
               The case involving the BellSouth-MCImetro Agreement is Case No. 1:99-CV-0248;
    the case involving the BellSouth-WorldCom Agreement is Case No. 1:99-CV-0249.
           11
              BellSouth sought a declaration in its favor as to the following issues:
           a) calls transmitted through an ISP over the Internet are interstate in nature and
               are not local traffic;
           b) the terms of the Interconnection Agreement[s] between BellSouth and [the
               CLEC defendants] do not require BellSouth to pay reciprocal compensation for
               telecommunications traffic to an end user of [the CLEC defendants] that is also
               an ISP; and
           c) the [G]PSC is without jurisdiction to convert interstate traffic, over which the
               FCC has exclusive jurisdiction, into local traffic.
           12
             In addition to the cases currently before this court, the district court’s order, which was
    handed down in both cases, also disposed of two disputes involving interconnection agreements
    
                                                    17
    that the GPSC was not a necessary party “to determine whether the agreement . . .
    
    meets the requirements of” sections 251 and 252 of the 1996 Act. Nor did the
    
    court find that the GPSC was indispensable, as the court believed it could fashion
    
    appropriate relief without the GPSC by issuing a declaration or an injunction
    
    binding BellSouth and the CLEC defendants and the GPSC’s interest in upholding
    
    its ruling would be well-represented by the CLEC defendants. Consequently, the
    
    court sua sponte dismissed the GPSC commissioners as defendants in the case.
    
           Turning to the actual merits of the controversy, the district court, having
    
    decided that state commissions, like the GPSC, have authority under 47 U.S.C.
    
    § 252 to interpret interconnection agreements, found that the GPSC had not
    
    violated federal law by ruling that ISP-bound telephone calls were local traffic.
    
    The court also found that the GPSC ruling was consistent with the principles of
    
    Georgia contract law, under which the Agreements were explicitly governed.
    
    Accordingly, the court denied BellSouth’s request for declaratory and injunctive
    
    relief and dismissed the cases.
    
    
    
                                                   II.
    
    
    
    BellSouth made with e.spire Communications, Inc., and Intermedia Communications, Inc.
    e.spire settled its dispute with BellSouth before BellSouth brought these appeals, and Intermedia
    settled with BellSouth shortly after we heard oral argument.
    
                                                   18
           As aforementioned, the district court based its jurisdiction over this dispute
    
    on 47 U.S.C. § 252(e)(6), which 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 this section.” The court explicitly held that the disputed GPSC
    
    orders were state commission “determinations” made pursuant to section 252 of
    
    the 1996 Act. In doing so, however, the district court had to draw two other
    
    conclusions, neither of which it mentioned in its dispositive order: first, that the
    
    GPSC had the authority to adjudicate the dispute between BellSouth and the CLEC
    
    defendants, and second, that this authority derived from section 252 of the 1996
    
    Act. As the following discussion indicates, we disagree with not only the latter,
    
    but also the former, of these premises. Instead, we find that the GPSC had no
    
    jurisdiction to issue the orders in this case under the federal and state statutory
    
    bases it cited in its orders.13
    
           13
               Under section 23 of the BellSouth-MCImetro Agreement, “the parties agree[d] that
    any dispute arising out of or relating to this Agreement that the parties themselves cannot
    resolve, may be submitted to the Commission for resolution.” While we acknowledge that
    parties are free to predetermine a forum for dispute resolution, there is no indication in the record
    that the GPSC based its jurisdiction to resolve the dispute between BellSouth and MCImetro on
    section 23. Moreover, section 23 indicates that both parties were under the mutual and mistaken
    
                                                     19
                                                    A.
    
    
    
           To determine whether the GSPC’s orders constitute “determinations” under
    
    section 252 of the 1996 Act, we first look for plain meaning in the pertinent
    
    language of that statute. “Our inquiry must cease if the statutory language is
    
    unambiguous and ‘the statutory scheme is coherent and consistent.’” Robinson v.
    
    Shell Oil Co., 
    519 U.S. 337
    , 340, 117 S. Ct 843, 846, 
    136 L. Ed. 2d 808
     (1997)
    
    (quoting United States v. Ron Pair Enters., 
    489 U.S. 235
    , 240 (1989)). As best we
    
    can tell,14 the GPSC rooted its authority under the 1996 Act in 47 U.S.C.
    
    § 252(e)(1), which provides:
    
           Any interconnection agreement adopted by negotiation or arbitration
           shall be submitted for approval to the State commission. A State
           commission to which an agreement is submitted shall approve or
           reject the agreement, with written findings as to any deficiencies.
    
    The plain meaning of this statutory subsection, however, grants state commissions,
    
    like the GPSC, the power to approve or reject interconnection agreements, not to
    
    
    impression that “the Commission ha[d] continuing jurisdiction to implement and enforce all
    terms and conditions of th[e] Agreement.” Consequently, we do not consider that the GPSC
    acted under any sort of contractual authority when it issued its order interpreting the BellSouth-
    MCImetro Agreement.
           14
              In neither of the disputed orders did the GPSC indicate the particular subsection of 47
    U.S.C. § 252 that it perceived to be the basis for its jurisdiction. Instead, the commission simply
    claimed that it had “authority and jurisdiction over [each] matter pursuant to the
    Telecommunications Act of 1996.”
    
                                                    20
    interpret or enforce them. It would seem, therefore, that the 1996 Act does not
    
    permit a State commission, like the GPSC, to revisit an interconnection agreement
    
    that it has already approved, like the ones in this case.
    
          Subsection 252(e)(6) of the 1996 Act lends further credence to this
    
    interpretation. That subsection provides that “[i]n 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 . . . meets the requirements of section 251 of this
    
    title and this section.” 47 U.S.C. § 252(e)(6). If section 252 truly provided state
    
    commissions with the authority to interpret interconnection agreements, then
    
    subsection 252(e)(6) would imply that federal courts have the right to review their
    
    decisions. If that were the case, one would expect the district court to review the
    
    commission’s construction of the agreement under the applicable state contract law
    
    -- as the district court did in the instant case. The statute, however, only permits
    
    the district court to review whether the agreement, as construed, meets the
    
    requirements of the 1996 Act. A more harmonious interpretation of subsection
    
    252(e)(6) arises if the 1996 Act is read as only giving state commissions the right
    
    to approve or reject interconnection agreements. Under this construction of the
    
    statute, federal courts would only need to determine whether the interconnection
    
    
                                               21
    agreements meet the requirements of section 251 and 252, because that would be
    
    the only information that state commissions consider in reaching their decisions.
    
           Despite this seemingly overwhelming evidence to support the plain meaning
    
    of 47 U.S.C. § 252, those circuit courts of appeal that have previously addressed
    
    whether state commission decisions have authority under the 1996 Act to interpret
    
    previously approved interconnection agreements have reached split decisions.
    
    Some courts have either held that state commission decisions interpreting
    
    interconnection agreements are not determinations pursuant to section 252, see
    
    Bell Atlantic Maryland v. MCI WorldCom, 
    240 F.3d 279
    , 301-07 (4th Cir. 2001),15
    
    or ducked the question altogether. See Puerto Rico Tel. Co. v.
    
    Telecommunications Regulatory Bd. of Puerto Rico, 
    189 F.3d 1
    , 10-13 (1st Cir.
    
    1999) (“Several courts have held that interpretations and enforcements of
    
    [interconnection] agreements are implicitly covered by § 252 and so are covered by
    
    § 252(e)(6). We need not and do not decide this issue . . . .”) (citations omitted).
    
    Others have concluded “that the Act's grant to the state commissions of plenary
    
    authority to approve or disapprove these interconnection agreements necessarily
    
    carries with it the authority to interpret and enforce the provisions of agreements
    
           15
               The Fourth Circuit in Bell Atlantic Maryland did note in dicta that it believed that
    “State commissions have authority to interpret and enforce interconnection agreements,” but
    cited state law, specifically Md. Code Ann., Pub. Util. Cos. § 2-113, rather than section 252, as
    the basis for such authority. Bell Atlantic Maryland, 240 F.3d at 304.
    
                                                    22
    that state commissions have approved.” Southwestern Bell Tel. Co. v. Public Util.
    
    Comm'n of Texas, 
    208 F.3d 475
    , 479-80 (5th Cir. 2000); see Southwestern Bell
    
    Tel. Co. v. Brooks Fiber Communications of Oklahoma, Inc., 
    235 F.3d 493
    , 496-
    
    97 (10th Cir. 2000); see also Illinois Bell Tel. v. WorldCom Techs., Inc., 
    179 F.3d 566
    , 570-71 (7th Cir. 1999) (holding that a district court had jurisdiction under
    
    252(e)(6) to review a state commission order interpreting a interconnection
    
    agreement).16
    
           Courts, which have eschewed the plain meaning of section 252 and held that
    
    state commissions have authority under the 1996 Act to interpret and enforce
    
    interconnection agreements, have used language from FCC rulings to support their
    
    decisions. The Fifth Circuit in Public Utility Commission, for example, cited the
    
    FCC’s now-vacated ruling in Implementation of the Local Competition Provisions
    
    in the Telecommunications Act of 1996 and Inter-Carrier Compensation for ISP-
    
    Bound Traffic [hereinafter Inter-Carrier Compensation for ISP-Bound Traffic], 14
    
    
           16
               Even though the Seventh Circuit in Illinois Bell did not expressly consider whether
    state commissions have the authority to interpret previously approved interconnection
    agreements, both the Fifth Circuit and the FCC have referenced the opinion as support for that
    notion. See Public Util. Comm’n, 208 F.3d at 480; 15 F.C.C.R. 11,277 ¶ 6 n.13. Specifically,
    they cite two sections of dicta from the Illinois Bell opinion: one allegedly noting that a state
    commission “was doing what it was charged with doing” when it determined contractual intent
    under interconnection agreements, Illinois Bell, 179 F.3d at 573, quoted in Public Util Comm’n,
    208 F.3d at 480, and the other emphasizing that “the Act specifically provides state commissions
    with an important role to play in the field of interconnection agreements.” Illinois Bell, 179 F.3d
    at 574, quoted in 15 F.C.C. 11,277 ¶ 6 n.13.
    
                                                    23
    F.C.C.R. 3689 (1996).17 See Public Util. Comm’n., 208 F.3d at 480. In that
    
    ruling, the FCC did not directly address whether state commissions have authority
    
    under the 1996 Act to interpret interconnection agreements, but used language
    
    suggesting that it was operating under the assumption that state commissions had
    
    such authority. For instance, the FCC noted that parties are bound by
    
    interconnection agreements “as interpreted and enforced by the state
    
    commissions,” id. ¶ 22, and it discussed factors state commissions should use in
    
    “construing the parties’ agreements.” Id. ¶ 24. Based on this dicta, the Fifth
    
    Circuit “believe[d] that the FCC plainly expects state commissions to decide
    
    intermediation and enforcement disputes that arise after the approval procedures
    
    are complete,” Public Util. Comm’n, 208 F.3d at 480, and held “that [a state
    
    commission] acted within its jurisdiction in addressing . . . questions pertaining to
    
    interpretation and enforcement of . . . previously approved interconnection
    
    agreements.” Id.; see also Illinois Bell, 179 F.3d at 571-73 (relying on Inter-
    
    Carrier Compensation for ISP-Bound Traffic in holding that state commissions had
    
    
    
    
           17
              In Bell Atlantic Tel. Cos. v. FCC, 
    206 F.3d 1
     (D.C. Cir. 2000), the court of appeals
    vacated the FCC’s ruling in Inter-Carrier Compensation for ISP-Bound Traffic, “[b]ecause the
    Commission [did] not provide[] a satisfactory explanation why LECs that terminate calls to ISPs
    are not properly seen as ‘terminating . . . local telecommunications traffic,’ and why such traffic
    is ‘exchange access’ rather than ‘telephone exchange service.’” Id. at 9.
    
                                                    24
    the authority to resolve disputes over reciprocal compensation of ISP-bound
    
    traffic).
    
           The Tenth Circuit relied on another FCC ruling, In re Starpower
    
    Communications, 15 F.C.C.R. 11,277 (2000) [hereinafter Starpower
    
    Communications], as support for its holding in Brooks Fiber that state
    
    commissions have jurisdiction under section 252 to interpret previously approved
    
    interconnection agreements. See Brooks Fiber, 235 F.3d at 497. In Starpower
    
    Communications, the FCC, in contrast to its ruling in Inter-Carrier Compensation
    
    for ISP-Bound Traffic, expressly considered “whether a dispute arising from
    
    interconnection agreements and seeking interpretation and enforcement of those
    
    agreements is within the states’ ‘responsibility’ under section 252.” 15 F.C.C.R.
    
    11,277 ¶ 6. “[F]ind[ing] federal court precedent to be instructive,” it concluded
    
    that “inherent in state commissions’ express authority to mediate, arbitrate, and
    
    approve interconnection agreements under section 252 is the authority to interpret
    
    and enforce previously approved agreements.” Id. Strangely, the federal
    
    precedents that the FCC found to be so instructive were the aforementioned cases,
    
    Public Utility Commission and Illinois Bell, see 15 F.C.C.R. 11,277 ¶ 6 n.13,
    
    which relied on the FCC’s dicta in Inter-Carrier Compensation for ISP-Bound
    
    Traffic to reach their own conclusions. In essence, Starpower Communications
    
    
                                             25
    represented the proverbial case of the dog chasing its tale: For its determination,
    
    the FCC relied on case law, which had, in turn, relied on now-vacated dicta of the
    
    FCC. Nowhere in this line (or more appropriately, circle) of decisions did either a
    
    court or the FCC put forth a well-reasoned rationale for state commission authority
    
    to interpret interconnection agreements, choosing instead to follow what they
    
    believed the other had said. Despite this absence of logical underpinnings, the
    
    Tenth Circuit in Brooks Fiber nevertheless chose to “defer to the FCC’s view” and
    
    adopt the FCC’s conclusion that state commissions had jurisdiction under
    
    subsection 252(e)(6) to interpret previously approved interconnection agreements.
    
    Brooks Fiber, 235 F.3d at 497.
    
          While this court is not bound by decisions of other circuits, we are required
    
    to give due deference to decisions of administrative agencies, like the FCC –
    
    provided the proper conditions are met. Those conditions, enumerated by the
    
    Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense Council,
    
    Inc., 
    467 U.S. 837
    , 
    104 S. Ct. 2778
    , 
    81 L. Ed. 2d 694
     (1984), are twofold. First,
    
    we must determine whether Congress has directly spoken through statutory
    
    language to the issue at hand. If it has, then our inquiry ends and we must give
    
    effect to Congress’ intent. See id. at 843, 104 S. Ct. at 2781. If, however, “the
    
    statute is silent or ambiguous with respect to the specific issue,” the court must
    
    
                                              26
    secondly ask “whether the agency’s answer is based on a permissible construction
    
    of the statute.” Id. at 843, 104 S. Ct. at 2782. To be permissible, an agency’s
    
    interpretation of a statute must be reasonable, and not “arbitrary, capricious, or
    
    manifestly contrary to the statute.” Id. at 844, 104 S. Ct. at 2782. If the agency’s
    
    interpretation is reasonable, the courts must defer to it rather than form their own
    
    construction of the statute.
    
          In this case, the statute in question, the Federal Telecommunications Act of
    
    1996, is silent as to whether state commissions have the authority to interpret
    
    previously approved interconnection agreements. If the FCC reasonably construed
    
    the 1996 Act as providing such authority, this court would have no choice but to
    
    defer to this statutory construction, because “[47 U.S.C.] § 201(b) explicitly gives
    
    the FCC jurisdiction to make rules governing matters to which the 1996 Act
    
    applies.” AT&T Corp., 525 U.S. at 380 (emphasis in original). The FCC has not
    
    yet made this type of “reasonable” analysis, though. In Starpower
    
    Communications, the only decision in which the FCC has expressly considered
    
    whether state commissions have authority to interpret and enforce interconnection
    
    agreements under section 252 of the 1996 Act, the FCC did not derive its own
    
    construction of section 252, but instead relied blindly upon those allegedly done by
    
    two federal courts:
    
    
                                              27
          In applying Section 252(e)(5), we must first determine whether a
          dispute arising from interconnection agreements and seeking
          interpretation and enforcement of those agreements is within the
          states' "responsibility" under section 252. We conclude that it is. In
          reaching this conclusion, we find federal court precedent to be
          instructive. Specifically, at least two federal courts of appeal have
          held that inherent in state commissions' express authority to mediate,
          arbitrate, and approve interconnection agreements under section 252 is
          the authority to interpret and enforce previously approved agreements.
           These court opinions implicitly recognize that, due to its role in the
          approval process, a state commission is well-suited to address disputes
          arising from interconnection agreements. Thus, we conclude that a
          state commission's failure to "act to carry out its responsibility" under
          section 252 can in some circumstances include the failure to interpret
          and enforce existing interconnection agreements.
    
    Starpower Communications, 15 F.C.C.R. 11,277 ¶ 6. As previously discussed,
    
    however, those courts – the Fifth Circuit in Public Utility Commission and the
    
    Seventh Circuit in Illinois Bell – relied on dicta in the FCC’s now-vacated ruling
    
    in Inter-Carrier Compensation for ISP-Bound Traffic to reach their conclusions.
    
    Hence, the grounds on which the FCC rested in Starpower Communications for its
    
    supposed “interpretation” (if it could be called that) of section 252 could hardly be
    
    described as “reasonable.” We therefore feel no need to be bound by the agency’s
    
    decision.
    
          We instead choose to interpret section 252 in a manner more consistent with
    
    the clear meaning of the statute. See Johnson v. United States R.R. Retirement
    
    Bd., 
    925 F.2d 1374
    , 1378 (11th Cir. 1991) (“Though an agency’s interpretation of
    
    
                                             28
    the statute under which it operates is entitled to some deference, this deference is
    
    limited by our responsibility to honor the clear meaning of a statute, as revealed by
    
    its language, purpose, and history.”) Congress passed the 1996 Act based on a
    
    “belief that more competition, rather than more regulation, will benefit all [local
    
    telephone] consumers.” H.R. Rep. No. 101-204, at 50, reprinted in 1996
    
    U.S.C.C.A.N. 10, 14. Not surprisingly, an integral part of this legislation was the
    
    repeal of a section of the 1934 Federal Communications Act that gave state
    
    commissions exclusive jurisdiction over local telephone service. Admittedly, the
    
    1996 Act “provide[d] state commissions with an important role to play in the field
    
    of interconnection agreements,” Illinois Bell, 179 F.3d at 574, as Congress
    
    granted state commissions the power to arbitrate and approve or reject
    
    interconnection agreements, if they chose to use it. Nevertheless, it would seem
    
    contrary to Congress’ express intent to curtail state commission authority if we
    
    expand the power of state commissions beyond what Congress explicitly provided
    
    and, moreover, beyond the scope of their administrative expertise.
    
          If we allowed state commissions to interpret and enforce interconnection
    
    agreements, we would be opening the floodgates for them to regulate local
    
    telephone service -- in direct contradiction to the stated purpose of the 1996 Act.
    
    State commissions are not bound by the strictures of judicial process and
    
    
                                              29
    procedure, and Congress has provided no guidelines in the 1996 Act for
    
    interpreting interconnection agreements. Hence, the commissioners, who are
    
    selected for their expertise in the quasi-legislative task of rule-making and not for
    
    their knowledge in the legal art of contract interpretation, would be free to construe
    
    agreements as they saw fit. So long as the commissioners’ decisions did not
    
    directly conflict with the broad terms of the 1996 Act, they would be immune to
    
    judicial review -- even if they violated the most basic tenets of contract
    
    interpretation -- since review under 47 U.S.C. § 252(e)(6) is limited to
    
    “determin[ing] whether the [interconnection] agreement meets the requirements of
    
    [47 U.S.C. §§ 251 and 252].”
    
          We cannot accept the proposition that Congress would pass a statute
    
    stripping state commissions of their jurisdiction to regulate local telephone service
    
    but then, in the same statute, give them back that power in another form.
    
    Consequently, we cannot countenance such a reading of the 1996 Act. See
    
    Armstrong Paint & Varnish Works v. Nu-Enamel Corp., 
    305 U.S. 315
    , 333, 59 S.
    
    Ct. 191, 200, 
    83 L. Ed. 195
     (1938) (“[T]o construe statutes so as to avoid results
    
    glaringly absurd, has long been a judicial function.”). We instead adopt a reading
    
    of the statute more consistent with its plain meaning and intent, specifically that
    
    
    
    
                                              30
    state commissions, like the GPSC, are not authorized under section 252 to interpret
    
    interconnection agreements.
    
    
    
                                             B.
    
    
    
          Having determined that the GPSC has no power under federal law to
    
    interpret the interconnection agreements, we must now consider whether there is
    
    some other appropriate basis for the GPSC to interpret these agreements. In the
    
    orders currently disputed before the court, the GPSC cites two such alternative
    
    bases for its jurisdiction: (1) the Telecommunications and Competition
    
    Development Act of 1995 (the “Georgia Act”), Ga. Code Ann. §§ 46-5-160 to -174
    
    (Supp. 2001), and (2) “its general authority over companies subject to its
    
    jurisdiction.” As we shall discuss, though, neither provides the GPSC with
    
    authority to adjudicate a contractual agreement between two corporate entities.
    
    
    
                                             1.
    
    
    
          Even though the Georgia legislature passed the Telecommunications and
    
    Competition Development Act of 1995 (the “Georgia Act”), Ga. Code Ann. §§ 46-
    
    
                                             31
    5-160 et seq. (Supp. 2001), one year before the Federal Telecommunications Act,
    
    the stated goals of the former mirror those of the latter. To wit, the Georgia Act
    
    was enacted “to establish a new regulatory model for telecommunications services
    
    in Georgia to reflect the transition to a reliance on market based competition as the
    
    best mechanism for the selection and provision of needed telecommunications
    
    services at the most efficient pricing.” Id. § 46-5-161(a)(1). The administrative
    
    body charged with implementing the Georgia Act and thus effectuating this
    
    mandate is the GPSC.
    
          According to the Georgia Act, the GPSC’s jurisdiction “shall be construed to
    
    include the authority necessary to implement and administer the express provisions
    
    of [the Georgia Act] through rule-making proceedings and orders in specific
    
    cases.” Id. § 46-5-168(a). The statute actually enumerates several examples of the
    
    GPSC’s authority, including, for instance, the power to “[a]dopt reasonable rules
    
    governing service quality” and to “[r]esolve complaints against a local exchange
    
    company regarding that company’s service.” Id. § 46-5-168(b).18 Nowhere,
    
          18
              Read in its entirety, section 46-5-168(b) of the Georgia Code provides
    that “[t]he commission's jurisdiction shall include the authority to:
              (1) Adopt reasonable rules governing certification of local
           exchange companies;
              (2) Grant, modify, impose conditions upon, or revoke a certificate;
              (3) Establish and administer the Universal Access Fund including
           modifications to the maximum allowable charge for basic local
           exchange service;
              (4) Adopt reasonable rules governing service quality;
              (5) Resolve complaints against a local exchange company regarding
                                             32
    however, is the GPSC given the power to adjudicate contractual disputes between
    
    LECs. Instead, the Georgia Act simply allows the GPSC to adopt rules and impose
    
    conditions for the public good.
    
          To interpret Georgia statutes, courts use “the ‘golden rule’ of statutory
    
    construction, which requires [courts] to follow the literal language of the statute
    
    ‘unless it produces contradiction, absurdity or such an inconvenience as to insure
    
    that the legislature meant something else.’” Telecom*USA, Inc. v. Collins, 
    393 S.E.2d 235
    , 237 (1990) (quoting Department of Transp. v. City of Atlanta, 
    337 S.E.2d 327
    , 337-38 (1985) (Clarke, J. concurring)). The Georgia Act empowers
    
    the GPSC to “implement” and “administer” its provisions. These verbs have
    
    similar connotations, namely that the GPSC is obligated “to give practical effect
    
    to” and “to direct . . . the execution . . . of” the Georgia Act. Webster’s Third New
    
    
    
    
          that company's service;
             (6) Require a telecommunications company electing alternative
          regulation under this article to comply with the rate adjustment
          provisions of this article;
             (7) Approve and if necessary revise, suspend, or deny tariffs in
          accordance with the provisions of this article;
             (8) If necessary, elect another comparable measurement of inflation
          calculated by the United States Department of Commerce;
             (9) Establish reasonable rules and methodologies for performing
          cost allocations among the services provided by a telecommunications
          company; and
             (10) Direct telecommunications companies to make investments
          and modifications necessary to enable portability.
    
    
                                              33
    International Dictionary 27, 1134 (1993).19 Especially when read in conjunction
    
    with those duties of the GPSC that are explicitly mentioned in the statute -- for
    
    example, making rules regarding service quality and issuing certificates of
    
    authority -- this language indicates that the GPSC should play a ministerial and
    
    even quasi-legislative role within the statutory scheme, but provides no such
    
    support for any adjudicatory powers.
    
           Another section of the Georgia Act underscores this distinction. Section 46-
    
    5-168(f) of the Georgia Code allows the GPSC “the authority to petition, intervene,
    
    or otherwise commence proceedings before the appropriate federal agencies and
    
    courts having specific jurisdiction over the regulation of telecommunications
    
    seeking to enhance the competitive market for telecommunications services within
    
    the state.” There would be no need for the GPSC to “commence” proceedings in a
    
    court of law, however, if it had the authority to adjudicate those proceedings itself.
    
    The statute, therefore, contemplates occasions on which the GPSC would not be
    
    the proper forum to adjudicate disputes relating to telecommunications.
    
           Such an occasion arises in the case at hand. Nothing in the Georgia Act
    
    gives the GPSC the right to interpret a contract between two parties, just because
    
    
           19
               According to Webster’s Third New International Dictionary, to “administer” is “to
    direct or superintend the execution, use or conduct of,” id. at 27, while to “implement” is “to
    give practical effect to and ensure of actual fulfillment by concrete measures.” Id. at 1134.
    
                                                    34
    the two parties happen to be certified telecommunications carriers. The reason for
    
    this exclusion is probably as much practical as it is legal. The Georgia Act requires
    
    the GPSC to consider such factors as cost-efficiency and the public good when it
    
    conducts rule-making proceedings. See Ga. Code Ann. § 46-5-168(d) (Supp.
    
    2001).20 Construing the terms of contracts, like the interconnection agreements in
    
    this case, is a purely legal exercise that does not require consideration of these
    
    factors and thus falls outside of the commission’s expertise. Without explicit
    
    statutory instructions to the contrary, it would be inappropriate for this court to find
    
    that the Georgia legislature intended that a question of law should be answered by
    
    an unqualified body like the GPSC and not by a court. We cannot construe the
    
    Georgia Act in such a way. See Tuten v. City of Brunswick, 
    418 S.E.2d 367
    , 370
    
    (Ga. 1992) (“The construction [of statutes] must square with common sense and
    
    sound reasoning.”) (alteration in original) (quoting Blalock v. State, 
    143 S.E. 426
    ,
    
    
    
          20
            Section 46-5-168(d) of the Georgia Code specifically provides that the
    GPSC should consider the following factors in conducting any rule-making
    proceeding:
             (1) The extent to which cost-effective competitive alternatives are
          available to existing telecommunications networks and services; and
             (2) Requirements necessary to prevent any disadvantage or
          economic harm to consumers, protect universal affordable service,
          establish and maintain an affordable Universal Access Fund, protect
          the quality of telecommunications services, prevent anticompetitive
          practices, and prevent abandonment of service to areas where there is
          no competing provider of telecommunications service.
    
    
                                              35
    428 (Ga. 1928)). Accordingly, we hold that the Georgia Act provides no authority
    
    for the GPSC to interpret the interconnection agreements in this case.
    
    
    
                                              2.
    
    
    
          The third, and final, justification the GPSC lists for its authority to interpret
    
    the interconnection agreements between BellSouth and the CLEC defendants is “its
    
    general authority over companies subject to its jurisdiction.” In other words, the
    
    GPSC contends that it has specific jurisdiction in this case, because of an alleged
    
    general jurisdiction over telephone companies – though it fails to cite any statutory
    
    basis for such overarching power.
    
          Of course, the GPSC cannot provide any basis for such power, because none
    
    exists. It is true that Georgia law, specifically section 46-2-20(a) of the Georgia
    
    Code, provides that “the commission shall have the general supervision of all
    
    [public utilities including] telephone and telegraph companies.” There are limits to
    
    this power, however. Georgia courts have long recognized, for example, that
    
    telephone companies and other so-called “public” utilities have the right to be free
    
    of GPSC purview when they act as private entities and enter into contracts with
    
    each other:
    
    
                                              36
           The fact that a business or enterprise is, generally speaking, a public
           utility, does not make every service performed or rendered by it a
           public service, but it may act in a private capacity as distinguished
           from its public capacity, and in so doing is subject to the same rules as
           a private person. . . . Public utilities have the right to enter into
           contracts between themselves or with others, free from the control or
           supervision of the State, so long as such contracts are not
           unconscionable or oppressive and do not impair the obligation of the
           utility to discharge its public duties.
    
    Georgia Power Co. v. GPSC, 
    85 S.E.2d 14
    , 18 (Ga. 1954) (citations omitted); see
    
    also Atlanta Gas Light Co. v. GPSC, 
    185 S.E.2d 403
    , 405-06 (Ga. 1971) (quoting
    
    Georgia Power Co. but concluding that a public utility’s contract to provide total
    
    energy service to two high-rise buildings was subject to GPSC regulation because
    
    it involved furnishing a utility to the public ). In the case at hand, the
    
    interconnection agreements formed between BellSouth and the CLEC defendants,
    
    while compelled by federal law, were basic corporate contracts and did not directly
    
    impact provision of local telephone service to the public. They, therefore, do not
    
    fall within the GPSC’s jurisdiction, as defined by Georgia law.21
    
           There are functional reasons for excluding interpretation of these contracts
    
    from the GPSC’s jurisdiction. The GPSC is a quasi-legislative body charged with
    
    ensuring that utility rates are set appropriately and public services are provided
    
    
           21
              The GPSC’s jurisdiction is established at Ga. Code Ann. §§ 46-2-20 (1992), 46-5-168
    (Supp. 2001). Nothing in this statutory framework gives the GPSC the power to interpret
    contracts such as the ones involved in these cases.
    
                                                 37
    fairly. See, e.g., GPSC v. ALLTEL Ga. Communications Corp., 
    489 S.E.2d 350
    ,
    
    383 (Ga. Ct. App. 1997) (“[T]he [G]PSC has general jurisdiction to make a quasi-
    
    legislative determination of just and reasonable rates.”). For this reason, courts
    
    give deference to the GPSC’s orders on matters, like rate-setting, that fall within its
    
    distinct area of expertise:
    
          [R]atemaking is a legislative function which the Constitution of this
          state has both authorized and required the Legislature to delegate to
          the members of the Commission. To this extent, and to this extent
          only, the Commission is constitutionally charged as a lawmaking
          body, and so long as it does not itself act in an unconstitutional
          manner the courts do not have any right to interfere.
    
    Southern Bell Tel. & Tel. Co. v. Invenchek, Inc., 
    204 S.E.2d 457
    , 459 (Ga. Ct.
    
    App. 1974); see Southern Bell Tel. & Tel. Co. v. GPSC, 
    49 S.E.2d 38
    , 61 (Ga.
    
    1948) (“The function of making telephone rates is legislative in nature, and such
    
    rates can not be judicially fixed by courts.”). Contract interpretation is not an area
    
    within the GPSC’s expertise, however. It would be grossly unwarranted to suggest
    
    that a quasi-legislative body, like the GPSC, would be better suited than a court to
    
    answer the strictly legal questions of contract interpretation.
    
          Of course, until the 1996 Act was enacted, this point was somewhat moot, as
    
    telecommunications regulation involved rate-setting and not contract interpretation.
    
    The regulatory paradigm for local telephone service at that time was based on the
    
    monopolies enjoyed by the incumbent LECs. Since there was no competition
    
                                              38
    among LECs, there were no conflicts and thus no need for either contractual
    
    agreements or judicial interpretation of those agreements. The 1996 Act altered
    
    this regulatory landscape. With the advent of federally mandated interconnection
    
    agreements, courts must be ready to interpret these contracts should the need arise.
    
    At the same time, public commissions, like the GPSC, should recognize when
    
    telecommunications issues arise that do not fall within either their expertise or their
    
    legislative charge.
    
           As telecommunications law shifts from a framework based on governmental
    
    regulation to one modeled on free market competition, the bodies charged with
    
    effectuating this change -- both administrative and judicial -- must be similarly
    
    flexible. In this case, neither the district court nor the GPSC met this challenge and
    
    recognized that the conflict between BellSouth and the CLEC defendants should be
    
    resolved in a court of law and not by the commission. As a result, we must reverse
    
    the district court’s order affirming the GPSC’s decision, as we find that the GPSC
    
    had no authority to issue its decision in the first place.
    
    
    
                                               III.
    
    
    
    
                                               39
           Having determined that the GPSC’s orders were invalid, we turn to
    
    appellant’s other question -- whether the district court acted properly when it
    
    dismissed the GPSC commissioners sua sponte under Rule 21 of the Federal Rules
    
    of Civil Procedure.22 In dismissing the commissioners, who were sued individually
    
    and in their official capacity, the district court utilized a two-step analysis: It first
    
    determined that “neither the [G]PSC nor its members need[ed] [to] be parties to
    
    these suits for the court to exercise jurisdiction,” and then, looking at the relief
    
    BellSouth sought, concluded that the commissioners “[were] neither necessary nor
    
    indispensable parties and that their presence in the instant actions pose[d]
    
    problematic constitutional questions that [were] best avoided.” The district court’s
    
    logic was somewhat flawed, because the court wrongly believed that it had
    
    jurisdiction under 47 U.S.C. § 252(e)(6). Nevertheless, we agree with the court’s
    
    overall conclusion, as the commissioners’ presence in the case is unnecessary for
    
    the only type of relief available to BellSouth: a declaratory judgment that the
    
    GPSC’s orders are void for lack of jurisdiction. To illustrate this point, we
    
    consider BellSouth’s three claims for relief -- judicial review of the GPSC’s orders,
    
    
    
           22
              Fed. R. Civ. P. 21 provides in pertinent part:
           Parties 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. Any
           claim against a party may be severed and proceeded with separately.
    
                                                    40
    a declaratory judgment interpreting the interconnection agreements, and an
    
    injunction against the GPSC commissioners -- in turn.
    
    
    
                                              A.
    
    
    
          In its first claim for relief, BellSouth seeks federal review and reversal of the
    
    GPSC’s orders requiring it to compensate the CLEC defendants for ISP-bound
    
    telephone calls. BellSouth believes that it is entitled to judicial review of the
    
    GPSC’s orders “[p]ursuant to 28 U.S.C. §§ 2201 and 2202, and 47 U.S.C.
    
    § 252(e)(6).” 47 U.S.C. § 252(e)(6), as we have noted, provides that, “[i]n 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 this section.” We decided in part I.A
    
    of this opinion, however, that the GPSC did not have jurisdiction under section 252
    
    to interpret the interconnection agreements between BellSouth and the CLEC
    
    defendants and thus to issue the orders to that effect. Therefore, those orders
    
    cannot be considered determinations under section 252, and the district court had
    
    no jurisdiction to review them substantively under subsection 252(e)(6).
    
    
                                              41
          Obviously, both the district court and this court nevertheless have federal
    
    question jurisdiction under 28 U.S.C. § 1331 to review the orders for their validity:
    
    Whether or not the GPSC has authority under the Federal Telecommunication Act
    
    of 1996 to interpret interconnection agreements is clearly an issue that “arise[s]
    
    under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331;
    
    see Shaw v. Delta Air Lines, Inc., 
    463 U.S. 84
    , 96 n.14, 
    103 S. Ct. 2890
    , 2899, 
    77 L. Ed. 2d
    . 490 (1983) (“It is beyond dispute that federal courts have jurisdiction
    
    over suits to enjoin state officials from interfering with federal rights.”) Because
    
    we have such jurisdiction, this court can issue a declaratory statement under the
    
    Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, regarding the validity of
    
    the orders. See McDougald v. Jenson, 
    786 F.2d 1465
    , 1476 (11th Cir. 1986) (“[I]f
    
    the federal issue [presented in a declaratory judgment action] would inhere in the
    
    claim on the face of the complaint that would have been presented in a traditional .
    
    . . coercive action, then federal jurisdiction exists over the declaratory judgment
    
    action.”) (alteration in original) (citation omitted). Therefore, we declare today
    
    that the orders issued by the GPSC in the disputes between BellSouth and the
    
    CLEC defendants are void, because the GPSC lacked the jurisdiction to issue them.
    
    
    
                                              B.
    
    
                                              42
          BellSouth has also asked this court to issue declaratory judgments pursuant
    
    to 28 U.S.C. §§ 2201 and 2202 that:
    
          a)     calls transmitted through an ISP over the Internet are interstate
                 in nature and are not local traffic
    
          b)     the terms of the Interconnection Agreement[s] between
                 BellSouth and [the CLEC defendants] do not require BellSouth
                 to pay reciprocal compensation for telecommunications traffic
                 to an end user of [the CLEC defendants] that is also an ISP; and
    
          c)     the [G]PSC is without jurisdiction to convert interstate traffic,
                 over which the FCC has exclusive jurisdiction, into local traffic.
    
    As we intimated in the previous subsection, however, “the operation of the
    
    Declaratory Judgment Act is procedural only,” Aetna Life Ins. Co. v. Haworth, 
    300 U.S. 227
    , 240, 
    57 S. Ct. 461
    , 463, 
    81 L. Ed. 617
     (1937), and 28 U.S.C. §§ 2201 and
    
    2202 cannot serve as independent sources for subject matter jurisdiction. See
    
    Skelly Oil Co. v. Phillips Petroleum Co., 
    339 U.S. 667
    , 671-74, 
    70 S. Ct. 876
    , 878-
    
    89, 
    94 L. Ed. 1194
     (1950). Consequently, before we can address any of the issues
    
    on which BellSouth seeks a declaratory judgment, we must determine whether
    
    those issues are ones that “arise under the Constitution, laws, or treaties of the
    
    United States.” 28 U.S.C. § 1331.
    
          The first two matters that BellSouth would like us to address are, first,
    
    whether ISP-bound telephone calls are local traffic, and second, whether LECs are
    
                                              43
    entitled to reciprocal compensation for them. Answering either of these questions
    
    necessarily involves contract interpretation. According to the interconnection
    
    agreements, LECs do not receive reciprocal compensation for telephone calls
    
    unless they are “local traffic” -- as that term is defined by the agreements. To
    
    determine whether ISP-bound calls are “local traffic,” therefore, we would need to
    
    analyze the agreements’ definition of that term using Georgia law, the law chosen
    
    by the parties for interpretation of their contracts.
    
          In effect, BellSouth’s claim, while crafted as one for declaratory judgment
    
    under federal law, is no different than a state-law claim for breach of contract. We
    
    recognized in City of Huntsville v. City of Madison, 
    24 F.3d 169
     (11th Cir. 1994),
    
    “that a declaratory judgment plaintiff . . . may only claim federal question
    
    jurisdiction if the anticipated lawsuit by the declaratory judgment defendant . . .
    
    arises under federal law.” Id. at 172. In the instant case, BellSouth would like us
    
    to declare that it has not breached the interconnection agreements, which it signed
    
    with the CLEC defendants, by refusing to compensate them for ISP-bound calls.
    
    But “[i]f [the CLEC defendants] sought damages from [BellSouth] or specific
    
    performance of their contracts, [they] could not bring suit in a United States
    
    District Court on the theory that [they were] asserting a federal right. And for the
    
    simple reason that such a suit would ‘arise’ under the State law governing the
    
    
                                               44
    contracts.” Skelly Oil Co., 339 U.S. at 672, 70 S. Ct. at 879. Similarly, BellSouth
    
    cannot use the Declaratory Judgment Act to bring suit in a federal court to show
    
    that it does not owe the CLEC defendants any such damages or specific
    
    performance under the same contract law.
    
           One could argue that BellSouth asserts a federal question in this case by
    
    seeking to clarify its rights under federally mandated contracts, i.e., interconnection
    
    agreements required by the 1996 Act. In Jackson Transit Auth. v. Local Div. 1285,
    
    
    457 U.S. 15
    , 
    102 S. Ct. 2202
    , 
    72 L. Ed. 2d 639
     (1982), the Supreme Court held
    
    that a contract enforcement action stated a federal claim, “if Congress intended that
    
    [the contracts] . . . be ‘creations of federal law,’ . . . and that the rights and duties
    
    contained in those contracts be federal in nature. Id. at 23, 102 S. Ct. at 2207
    
    (quoting Machinists v. Central Airlines, Inc., 
    372 U.S. 682
    , 692, 
    83 S. Ct. 956
    ,
    
    962, 
    10 L. Ed. 2d 67
     (1963)). The interconnection agreements signed by BellSouth
    
    and the CLEC defendants are indeed creations of federal law – namely, the 1996
    
    Telecommunications Act – and do contain federal rights and duties – specifically,
    
    those enumerated in section 251 of that Act. The relief that BellSouth seeks,
    
    however, does not require resolution of any question involving the 1996 Act or the
    
    rights and duties contained therein: It is a simple matter of common law contract
    
    interpretation.
    
    
                                                45
          To elaborate, the Supreme Court in Franchise Tax Board v. Construction
    
    Laborers Vacation Trust, 
    463 U.S. 1
    , 
    103 S. Ct. 2841
    , 
    77 L. Ed. 2d 420
     (1983), held
    
    that a case might “arise under” federal law, even though state law creates the cause
    
    of action, “if a well-pleaded complaint established that its right to relief under state
    
    law requires resolution of a substantial question of federal law in dispute between
    
    the parties.” Id. at 13, 103 S. Ct. at 2849. This basis for federal jurisdiction was
    
    narrowed even further by the Court in Merrell Dow Pharmaceuticals Inc. v.
    
    Thompson, 
    478 U.S. 804
    , 
    106 S. Ct. 3229
    , 
    92 L. Ed. 2d 650
     (1986). In that case, the
    
    Court held that “a complaint alleging a violation of a federal statute as an element
    
    of a state cause of action, when Congress has determined that there should be no
    
    private, federal cause of action for the violation, does not state a claim ‘arising
    
    under the Constitution, laws, or treaties of the United States.’” Id. at 817, 106 S.
    
    Ct. at 323 (quoting 28 U.S.C. § 1331). This circuit has hesitated to adopt the
    
    language of Merrell Dow as a bright-line rule for fear of eviscerating the holding of
    
    Franchise Tax Board, but nevertheless has held “that it will be only the exceptional
    
    federal statute that does not provide for a private remedy but still raises a federal
    
    question substantial enough to confer federal question jurisdiction when it is an
    
    element of a state cause of action.” City of Huntsville, 24 F.3d at 174.
    
    
    
    
                                               46
          Today, we need not delve into the vagaries of harmonizing Merrell Dow
    
    with Franchise Tax Board, though, because neither provides a basis for federal
    
    jurisdiction over BellSouth’s quasi-contractual declaratory judgment actions. As
    
    we have noted, adjudication of the dispute between BellSouth and the CLEC
    
    defendants does not require “resolution of a substantial question of federal law,”
    
    but merely interpretation under Georgia law of the term, “local traffic,” as it is used
    
    in the interconnection agreements between the two parties. Moreover, the
    
    Telecommunications Act of 1996 does not provide a private right of action for
    
    interpretation of previously approved interconnection agreements. It simply allows
    
    aggrieved parties to appeal to federal district courts if they are unhappy with a state
    
    commission’s approval or rejection of an interconnection agreement.
    
          In summary, the district court had no justification for exercising its federal
    
    jurisdiction to interpret the agreements between BellSouth and the CLEC
    
    defendants and therefore cannot do so -- even in the context of a declaratory
    
    judgment action. Therefore, the district court could not issue the first two
    
    declarations BellSouth requests. The third declaration BellSouth seeks -- that the
    
    GPSC does not have the power to convert interstate traffic into local traffic -- did
    
    not require the district court to interpret the interconnection agreements, but is
    
    moot in light of our previous finding rendering the GPSC orders invalid for lack of
    
    
                                              47
    jurisdiction. See Connell v. Shoemaker, 
    555 F.2d 483
    , 486 (5th Cir. 1977) (“[T]he
    
    question of the mootness vel non of [a] claim under the Declaratory Judgment Act,
    
    28 U.S.C. § 2201, [is] ‘whether the facts alleged, under all the circumstances,
    
    show that there is a substantial controversy, between parties having adverse legal
    
    interests, of sufficient immediacy and reality to warrant the issue of a declaratory
    
    judgment.’”) (quoting Maryland Cas. Co. v. Pacific Coal & Oil Co., 
    312 U.S. 270
    ,
    
    273, 
    61 S. Ct. 510
    , 512, 
    85 L. Ed. 826
     (1941)). As a result, the district court could
    
    not grant BellSouth any of the declaratory judgment relief that it sought in its
    
    second claim for relief, regardless of whether the GPSC is a party to this litigation.
    
    
    
                                              C.
    
    
    
          In its third and final claim for relief, BellSouth seeks an injunction
    
    “enjoining the Defendants from enforcing the [G]PSC order[s].” It is not clear
    
    whether BellSouth would like the CLEC defendants or the commissioners -- or
    
    both of these two groups of defendants -- enjoined. It matters little, however,
    
    because, regardless of which defendants BellSouth would like enjoined, such
    
    action is not necessary. Given our decision that the commission lacked the
    
    jurisdiction to interpret the interconnection agreements at issue, its orders are
    
    
                                              48
    nothing more than dead letters. Consequently, the parties will either settle their
    
    disputes amicably or seek relief in Georgia superior court, the state court of general
    
    jurisdiction.23
    
    
    
                                                  IV.
    
    
    
           For the reasons we have stated, the judgment of the district court is
    
           REVERSED.
    
    
    
    
           23
              Now that the GPSC and its commissioners -- all residents of Georgia -- have been
    dismissed as parties, diversity may exist between BellSouth -- a Georgia corporation -- and the
    CLEC defendants, and a federal district court may have jurisdiction to resolve this dispute under
    28 U.S.C. § 1332. The parties, however, would first need to show that the statutory prerequisites
    for diversity jurisdiction -- total diversity between the plaintiff and the defendant(s) and an
    amount in controversy greater than $75,000 -- have been met.
    
                                                   49
    BARKETT, Circuit Judge, dissenting:
    
          I respectfully dissent because I believe that the authority granted under 47
    
    U.S.C. § 252 (e)(1) to state commissions to “approve or reject” interconnection
    
    agreements “with written findings as to any deficiencies,” includes the authority to
    
    interpret and enforce those agreements. I agree with the determinations of the
    
    First, Fourth, Fifth, Seventh, Eighth and Tenth Circuits in this regard. See Puerto
    
    Rico Tel. Co. v. Telecomm. Regulatory Bd. of Puerto Rico, 
    189 F.3d 1
    , 10-13 (1st
    
    Cir. 1999); Bell Atlantic Maryland v. MCI WorldCom, 
    240 F.3d 279
    , 304-05 (4th
    
    Cir. 2001); Southwestern Bell Tel. Co. v. Public Util. Comm’n, 
    208 F.3d 475
    ,
    
    479-480 (5th Cir. 2000); Illinois Bell Tel. Co. v. Worldcom Techs., Inc., 
    179 F.3d 566
    , 571-72 (7th Cir. 1999); Iowa Util. Bd. v. F.C.C., 
    120 F.3d 753
    , 804 (8th Cir.
    
    1997), rev’d on other grounds, AT & T v. Iowa Util. Bd., 
    522 U.S. 1089
     (1998);
    
    Southwestern Bell Tel. Co. v. Brooks Fiber Optic Comm’n of Oklahoma, Inc., 
    235 F.3d 493
    , 497 (10th Cir. 2000). Thus, I believe that the Georgia Public Service
    
    Commission (“GPSC”) had the authority to accept, reject, interpret and enforce the
    
    agreements of the parties and, moreover, that under 47 U.S.C. § 252 (e)(6) the
    
    GPSC’s interpretations of the agreements were “determinations” subject to federal
    
    court review in this case. Accordingly, I believe the panel should have resolved
    
    the various merits issues raised by this appeal.
    
    
                                              50
    

Document Info

DocketNumber: 00-12809

Citation Numbers: 278 F.3d 1223

Filed Date: 1/10/2002

Precedential Status: Precedential

Modified Date: 2/19/2016

Authorities (30)

Southwestern Bell v. Pub Util Cmsn TX , 208 F.3d 475 ( 2000 )

Aetna Life Ins. Co. v. Haworth , 300 U.S. 227 ( 1937 )

Armstrong Paint & Varnish Works v. Nu-Enamel Corp. , 305 U.S. 315 ( 1938 )

Maryland Casualty Co. v. Pacific Coal & Oil Co. , 312 U.S. 270 ( 1941 )

Skelly Oil Co. v. Phillips Petroleum Co. , 339 U.S. 667 ( 1950 )

MacHinists v. Central Airlines, Inc. , 372 U.S. 682 ( 1963 )

Jackson Transit Authority v. Transit Union , 457 U.S. 15 ( 1982 )

Franchise Tax Bd. of Cal. v. Construction Laborers Vacation ... , 463 U.S. 1 ( 1983 )

Shaw v. Delta Air Lines, Inc. , 463 U.S. 85 ( 1983 )

Chevron USA Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 ( 1984 )

Merrell Dow Pharmaceuticals Inc. v. Thompson , 478 U.S. 804 ( 1986 )

United States v. Ron Pair Enterprises, Inc. , 489 U.S. 235 ( 1989 )

Robinson v. Shell Oil Co. , 519 U.S. 337 ( 1997 )

At&T Corp. v. Iowa Utilities Bd. , 525 U.S. 366 ( 1999 )

Southwestern Bell v. Brooks Fiber , 235 F.3d 493 ( 2000 )

Bell Atl Tele Cos v. FCC , 206 F.3d 1 ( 2000 )

Puerto Rico v. Telecommunication , 189 F.3d 1 ( 1999 )

Ted C. Connell and Ace Connell v. Lt. General Robert M. ... , 555 F.2d 483 ( 1977 )

Gary McDougald Cross-Appellant v. Vivian L. Jenson, Cross-... , 786 F.2d 1465 ( 1986 )

Claudette P. Johnson v. United States Railroad Retirement ... , 925 F.2d 1374 ( 1991 )

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