United States District Court, D. Maryland, Southern Division
[Copyrighted Material Omitted]
For Broadvox-CLEC, LLC, Plaintiff, Counter Defendant: Charles A Zdebski, LEAD ATTORNEY, Eckert Seamans Cherin & Mellott LLC, Washington, DC; James C Falvey, PRO HAC VICE, Jeffrey Paul Brundage, Eckert Seamans Cherin and Mellott LLC, Washington, DC.
For AT& T Corp., Defendant, Counter Claimant: Michael Joseph Hunseder, LEAD ATTORNEY, Sidley Austin LLP, Washington, DC.
MEMORANDUM OPINION AND ORDER
Paul W. Grimm, United States District Judge.
Plaintiff/Counter-Defendant Broadvox-CLEC, LLC (" Broadvox" ), a competitive local exchange carrier, partners with third-party carriers to provide long-distance telephone access services to Defendant/Counter-Plaintiff AT& T Corporation (" AT& T" ), an interexchange (long-distance) carrier. These calls do not terminate at either Broadvox's or the third-party carriers' facilities. Broadvox seeks payment for those services, alleging that AT& T violated its federal and state tariffs (which set forth the rates it charges for its services) and the Communications Act, 47 U.S.C. § § 201 and 203, through its failure to pay and its allegedly discriminatory payment practices, and also seeks recovery in quantum meruit. AT& T counterclaims to recover any potential overpayment, alleging violations of the Communications Act based on AT& T's view that Broadview neither qualifies as a " domestic access" provider, nor operates an " 'end office' switch,"  and seeking a declaratory judgment confirming AT& T's view of Broadvox's status under the Communications Act. Countercl. ¶ ¶ 61, 74, 92-95.
Some or all of the parties' claims may present issues that fall within the purview of the Federal Communications Commission (the " FCC" or the " Commission" ). In a July 2, 2014 Memorandum Opinion and Order, I ordered the parties to brief the issue of primary jurisdiction. ECF Nos. 40 & 41. The briefing is complete, and Broadvox also has filed a Motion Requesting the Court to Establish a Summary Judgment Briefing Schedule and Memorandum in Support (" Broadvox Supp." ), based on its contention that the FCC " issued an order on February 11, 2015 fully resolving those issues [that may have been appropriate for referral to the FCC] and obviating any perceived need for a referral," ECF Nos. 64 & 64-1. AT& T has filed a response (" AT& T Supp. Resp." ), ECF No. 65, and Broadvox has filed a reply (" Broadvox Supp. Reply" ), ECF No. 66. Because the FCC already has provided sufficient guidance on any issues that otherwise would have been appropriate for referral, I conclude that a primary jurisdiction referral is not necessary with regard to the issues raised in the tariff claims. Nor is a referral necessary at this time with regard to the Communications Act and quantum meruit claims.
Broadvox is a local exchange carrier (" LEC" ) that bills AT& T for two " access services" for which AT& T does not believe it should be charged. The first disputed access service is provided when AT& T
customers place prepaid calling card (" PPCC" ) calls by dialing telephone numbers that Broadvox provides, which AT& T then transmits to a Broadvox facility, from which Broadvox and its PPCC provider partner " route them to a calling 'platform,'" where they terminate in internet protocol (" IP" ) format. AT& T Br. 3; see Broadvox Supp. Reply 13. At that point, the customer dials a second number and an unknown third-party network delivers the call its recipient. AT& T Br. 3. This is called a " two-stage call," and the issue is whether Broadvox may bill AT& T access charges for " routing the call to its routing partner" and then " terminating" the call by routing it to the platform, when Broadvox and its PPCC provider partner deliver the call to the platform at the end of the first stage but not to its ultimate recipient. Id. at 3-4; see Broadvox Resp. 5; Broadvox Supp. Reply 13-14.
The second disputed service is provided when Broadvox receives calls in IP format from AT& T, via a Voice over Internet Protocol (" VoIP" ) provider that Broadvox selects, and then " hand[s] off the call to an over-the-top VoIP provider" that " dump[s] the IP packets for the call . . . into the public Internet." AT& T Br. 6. An unaffiliated internet service provider then transfers the call " to the neighborhood IP broadband facilities used by the called party's broadband service provider," and that provider delivers the call to its recipient. Id. This is called " over-the-top VoIP traffic." The dispute, similar to the two-stage call dispute, is whether Broadvox may bill AT& T for an " 'end office switching' rate element," even though Broadvox is not " involved in the 'last-mile' delivery of the call." Id. at 6-7. Reduced to its essentials, Broadvox argues that AT& T has failed to pay its bills, and AT& T argues that it has been charged improperly because Broadvox charges for terminating calls when it is not, according to AT& T, actually terminating the calls.
These otherwise-simple disputes may " 'require the resolution of issues which, under a regulatory scheme, have been placed within the special competence'" of the FCC, such that, under the primary jurisdiction doctrine, it may be appropriate to stay proceedings in this Court " 'pending referral of such issues to the administrative body for its views.'" Advamtel, LLC v. AT& T Corp., 105 F.Supp.2d 507, 511 (E.D. Va. 2000); see Reiter v. Cooper, 507 U.S. 258, 268, 113 S.Ct. 1213, 122 L.Ed.2d 604 (1993); Piney Run Pres. Ass'n v. Cnty. Comm'rs of Carroll Cnty., 268 F.3d 255, 262 n.7 (4th Cir. 2001). This doctrine applies when a suit filed in district court " raises a difficult, technical question that falls within the expertise of a particular agency." Piney Run, 268 F.3d at 262 n.7. It allows courts to " 'tak[e] advantage of agency expertise and refer issues of fact not within the conventional expertise of judges,'" as well as " 'cases which require the exercise of administrative discretion,'" to the appropriate administrative agency so that the decision-making of the court and the agency is coordinated. Advamtel, 105 F.Supp.2d at 511 (quoting Envtl. Tech. Council v. Sierra Club, 98 F.3d 774, 789 (4th Cir. 1996)).
For example, courts typically refer issues concerning " the reasonableness of a carrier's tariff" to the FCC under the primary jurisdiction doctrine " because that question requires the technical and policy expertise of the agency, and because it is important to have a uniform national standard concerning the reasonableness of a carrier's tariff, as a tariff can affect the entire telecommunications industry." Id. (footnote omitted). In contrast, a court would not refer " an action seeking the enforcement of an established tariff," because
" enforcement of a tariff to collect amounts due under it is well within the ordinary competence of courts," given that " a tariff is essentially an offer to contract," and " such an action is simply one for the enforcement of a contract." Id. (footnote omitted). In Advamtel, the court referred two counts that " require[d] an evaluation of the reasonableness of plaintiffs' rates . .., issues that are plainly within the FCC's special competence and primary jurisdiction." Id. at 512. It did not refer the other four counts, which " involve[d] a threshold legal question, namely whether plaintiffs had a right to bill AT& T for the access services at issue in th[at] case," a question that was " well within the ordinary competence of courts." Id.
Yet, an issue should not be referred if the agency " has already issued guidance on [the] issue." Advamtel, 105 F.Supp.2d at 513 n.13. Moreover, referral is not mandatory; rather, " courts must . . . balance the advantages of applying the doctrine against the potential costs resulting from complications and delay in the administrative proceedings." Id. at 511. Additionally, if a court refers some, but not all, claims to an agency, it needs to determine whether the remaining claims should be stayed. See id. at 513. " A court may, in its discretion, stay proceedings pending determination by an administrative agency pursuant to the doctrine of primary jurisdiction." Id. In Advamtel, the court decided against staying the claims it did not refer because " the referred issue" was " secondary" to " the predicate, or primary issue" posed by the remaining claims, such that determination of the primary issue did " not depend in any way on the resolution of the issues referred to the FCC." Id. The court also reasoned that, " because proceedings before an administrative agency typically take several years, a stay would significantly delay resolution of th[e] case." Id.
I asked the parties to address (1) " whether each claim presents threshold legal questions for the court, or technical or policy questions for the FCC," (2) " whether the FCC has offered guidance on any questions that the claims pose within its expertise," and (3) " whether, with regard to any claim that should be referred to the FCC, the claim presents a primary issue, which requires the stay of the remaining claims, or ...