CoreTel Virginia, LLC v. Verizon Virginia, LLC

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 1:12-cv-00741-CMH-TCB. [999698540]. [15-1008]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1008

CORETEL VIRGINIA, LLC,
Plaintiff – Appellant,
v.
VERIZON VIRGINIA, LLC; VERIZON SOUTH, INC.; MCIMETRO ACCESS
TRANSMISSION SERVICES, LLC; MCI COMMUNICATIONS SERVICES,
INC.;
VERIZON
BUSINESS
GLOBAL
LLC;
BELL
ATLANTIC
COMMUNICATIONS, INC., d/b/a Verizon Long Distance,
Defendants – Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.
Claude M. Hilton, Senior
District Judge. (1:12-cv-00741-CMH-TCB)

Argued:

September 16, 2015

Decided:

November 13, 2015

Before WILKINSON, NIEMEYER, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Wilkinson and Judge Niemeyer joined.

ARGUED: Edward Jay Tolchin, OFFIT KURMAN, P.A., Tysons Corner,
Virginia, for Appellant.
Scott H. Angstreich, KELLOGG, HUBER,
HANSEN, TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for
Appellees. ON BRIEF: Eduardo F. Bruera, KELLOGG, HUBER, HANSEN,
TODD, EVANS & FIGEL, P.L.L.C., Washington, D.C., for Appellees.

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DUNCAN, Circuit Judge:
CoreTel
company,
Verizon

Virginia,

has

entered

Virginia,

“Verizon”)

LLC

in

LLC

(“CoreTel”),

into
and

accordance

a

telecommunications

interconnection
Verizon

with

the

South,

agreements

Inc.

with

(collectively

Telecommunications

Act

of

1996, Pub. L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C.
§ 151

et

seq.).

In

this

second

appeal

arising

out

of

a

disagreement between CoreTel and Verizon over their respective
obligations

under

those

interconnection

agreements,

CoreTel

disputes the district court’s determination that it owes Verizon
$227,974.22
facilities

for
and

the

use

$138,724.47

of
in

Verizon’s
late-payment

telecommunications
fees.

For

the

reasons that follow, we affirm.

I.
The Telecommunications Act of 1996 (the “Act”) provides the
context for this dispute between CoreTel and Verizon.
explained

more

incumbent

local

fully

in

exchange

our

first

carriers

opinion,
such

as

the

Act

Verizon

As we
requires

to

allow

competitive local exchange carriers such as CoreTel to connect
with end users over the incumbent’s network.

See CoreTel Va.,

LLC v. Verizon Va., LLC, 752 F.3d 364, 366–68 (4th Cir. 2014)
(“CoreTel I”).

Using the procedures set out in section 252 of

the Act, 47 U.S.C. § 252, carriers negotiate private agreements
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with each other that establish the rates and terms under which
their networks will be interconnected.

This case involves two

such interconnection agreements: one between CoreTel and Verizon
Virginia,

and

one

between

CoreTel

and

Verizon

South

(the

“ICAs”). 1
The ICAs govern, among other aspects of interconnection,
CoreTel’s
facilities.

use

of

Verizon’s

physical

telecommunications

In CoreTel I, we addressed the parties’ dispute

over what rates CoreTel must pay to use Verizon’s facilities.
See 752 F.3d at 370–72.

Verizon took the position that it was

entitled to charge the rates set out in its tariffs filed with
state

and

accordingly.

federal

regulatory

CoreTel

agencies,

believed

that

the

and
ICAs

billed

CoreTel

entitled

it

to

purchase access to Verizon facilities at a lower “total element
long-run incremental cost,” or “TELRIC” rate. 2

CoreTel declined

to pay not only the amounts set out in Verizon’s tariff-based
bills,

but

also

the

TELRIC-based

amounts

CoreTel

contended

should have been billed.

1

We cite “the ICAs” throughout rather than distinguishing
between the Verizon Virginia ICA and the Verizon South ICA. The
two agreements are identical in all relevant respects except for
pricing, which is dealt in separate “pricing attachments.”
2

TELRIC is a cost-based pricing methodology established by
the Federal Communications Commission to encourage competition
among carriers.
See, e.g., Verizon Commc’ns, Inc. v. Fed.
Commc’ns Comm’n, 535 U.S. 467, 495–96 (2002).
3

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Verizon sued for breach of contract, bringing two claims
associated with CoreTel’s refusal to pay its tariff-based bills.
First, Verizon sought a declaratory judgment that, if CoreTel
failed

to

pay,

service.

Verizon

Second,

was

Verizon

entitled
sought

to

terminate

damages

CoreTel’s

associated

with

CoreTel’s breach of the ICAs.
In

CoreTel

I,

we

held

that

Verizon

should

have

billed

CoreTel for facilities at TELRIC rather than tariff rates, and
that therefore “CoreTel was entitled to summary judgment in its
favor on . . . Verizon’s claim for declaratory relief relating
to Verizon’s facilities charges.”

752 F.3d at 372.

however,

for

resolve

Verizon’s

claim

CoreTel’s breach of the ICAs.

damages

We did not,

associated

with

Rather, we remanded that claim so

that the district court could apply the proper TELRIC rates to
calculate

what

facilities.

CoreTel

owes

Verizon

for

use

of

Verizon’s

Id.

On remand, the district court held a bench trial, during
which Verizon presented the tariff-based monthly bills it had
issued to CoreTel and the “pricing attachments” to the ICAs.
The monthly bills detail (1) what facilities Verizon provided to
CoreTel;

(2)

whether

the

facility

was

provided

by

Verizon

Virginia or Verizon South and, if split between those two, the
percentage of the facility in each company’s service area; and
(3) for transport facilities billed by the mile, the number of
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transport miles provided.

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The ICAs’ pricing attachments set out

the TELRIC rates associated with each type of facility.

Pricing

is the only term on which the Verizon Virginia ICA and the
Verizon South ICA differ; the ICAs are otherwise identical in
all relevant respects.
From that evidence, Verizon developed a summary spreadsheet
containing an entry for every facility it provided to CoreTel
with

the

specific

J.A. 865–99.

The

amount

owed

entries,

for

in

each

total,

at

TELRIC

reflected

rates.

debts

of

$162,871.70 for Verizon Virginia facilities and $65,102.52 for
Verizon South facilities, for a total of $227,974.22 in damages.
Verizon also contended that it was entitled to late-payment
fees of 1.5% per month on the facilities charges under the ICAs.
To

calculate

spreadsheet

the

amount,

detailing

Verizon

the

total

presented
unpaid

another

summary

facilities

charges

accrued (i.e., the principal) for each month and the total late
fees associated with those unpaid facilities charges.
01.

J.A. 900–

The late fees totaled $131,885.25.
CoreTel

raised

numerous

objections

to

Verizon’s

proposed

damages calculation, each of which the district court rejected
in entering judgment in favor of Verizon for the full amount it

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sought--$227,974.22
late fees. 3

in

J.A. 451.

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facilities

charges

and

$138,724.47

in

This appeal followed.

II.
Under Virginia law, 4 “[t]he elements of a breach of contract
action are (1) a legally enforceable obligation of a defendant
to a plaintiff; (2) the defendant’s violation or breach of that
obligation; and (3) injury or damage to the plaintiff caused by
the

breach

of

obligation.”

Ramos

v.

Wells

Fargo

770 S.E.2d 491, 493 (Va. 2015) (citation omitted).

Bank,

NA,

CoreTel has

never disputed that the ICAs are valid contracts that require it
to pay for its use of Verizon’s facilities, that it has in fact
used Verizon facilities without paying for that use, or that its
failure to pay has injured Verizon.
The sole question in this appeal is whether the district
court properly calculated Verizon’s damages for CoreTel’s breach
as we instructed.

CoreTel argues (1) that the district court

violated our mandate in CoreTel I by awarding as damages any
TELRIC-based facilities charges at all; (2) that even if Verizon
3

The $6,839.22 difference between the late fees Verizon
calculated at the time of trial ($131,885.25) and the late fees
the district court awarded represents additional late-fee
accumulation during the two months that passed between the bench
trial and the judgment.
4

The ICAs are governed by Virginia law except to the extent
federal law controls. ICAs § 28.5, J.A. 543.
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can recover such facilities charges, the district court made
several

errors

in

calculating

the

total

amount

owed;

and

(3) that the district court further erred in calculating the
late fees CoreTel owes under the ICAs.

In addressing CoreTel’s

arguments, we review the district court’s factual findings for
clear error and its conclusions of law de novo.

See Helton v.

AT&T Inc., 709 F.3d 343, 350 (4th Cir. 2013).
A.
As we clarify during our discussion, several of CoreTel’s
arguments suffer from the same underlying flaw: a misperception
of the mandate rule.

The mandate rule “is merely a specific

application of the law of the case doctrine.”

United States v.

Pileggi, 703 F.3d 675, 679 (4th Cir. 2013) (citation omitted).
It

“prohibits

lower

courts,

with

limited

exceptions,

from

considering questions that the mandate of a higher court has
laid to rest.”

Moore v. Bennette, 517 F.3d 717, 727 (4th Cir.

2008) (citation omitted).
CoreTel appears to believe that our opinion in CoreTel I
froze not only the law of the case but also all the underlying
facts.

Our remand order in CoreTel I, however, contemplated

that the district court would conduct additional fact-finding to
determine what CoreTel owes Verizon for facilities at TELRIC
rates.

The only matter our mandate in CoreTel I “laid to rest”

with regard to Verizon’s facilities claims is that TELRIC rates
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should apply, not tariff rates.

The district court faithfully

followed that ruling.
B.
We first address CoreTel’s argument, under the guise of the
mandate rule, that our opinion in CoreTel I precludes Verizon
from

recovering

as

damages

any

facilities

charges

at

all.

Essentially, CoreTel interprets that opinion to have mandated
complete

summary

judgment

in

CoreTel’s

favor

on

Verizon’s

facilities-related claims, leaving Verizon without a live claim
on which to seek damages.

Thus, CoreTel argues, the district

court violated our mandate when it nonetheless awarded damages.
CoreTel misunderstands both CoreTel I and Verizon’s claims.
As we explain above, Verizon brought two claims related to its
provision of facilities to CoreTel: a declaratory-judgment claim
and a claim for damages associated with a breach of the ICAs.
In CoreTel I, we held that “CoreTel was entitled to summary
judgment in its favor on . . . Verizon’s claim for declaratory
relief

relating

to

Verizon’s

facilities

charges,”

because

we

agreed with CoreTel that Verizon was limited to charging the
TELRIC rates for its facilities.
added).

752 F.3d at 372 (emphasis

But we expressly did not resolve Verizon’s claim for

damages associated with CoreTel’s breach of the ICAs.

Rather,

we “remand[ed] to the district court for consideration of . . .

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Verizon’s damages claim.”

Id. 5

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Thus, the district court did not

violate our mandate when it considered Verizon’s damages claim. 6
C.
We
court’s

turn

next

to

calculation

CoreTel’s

of

CoreTel owes Verizon.

the

challenges

outstanding

to

the

facilities

the

parties

are

to

establish

Under the

“interconnection

(“IPs”) at particular, agreed-upon locations.
J.A. 469.

charges

To understand CoreTel’s arguments, some

background information about the ICAs is helpful.
ICAs,

district

points”

See ICA § 4.2.2,

When a CoreTel customer calls a Verizon customer,

CoreTel is responsible for delivering that call to the relevant
Verizon IP, either by using its own facilities or by purchasing
access to Verizon’s facilities at the TELRIC rates set out in

5

CoreTel interprets this quotation to be instructing the
district court simply to undertake “the task of adding up the
damages Verizon was awarded, outside of its facilities claims.”
Appellant’s Br. at 30 (emphasis added). But the quotation comes
from a portion of CoreTel I that discusses solely Verizon’s
facilities claims, and the context makes clear that the “damages
claim”
in
question
is
Verizon’s
breach-of-contract
claim
associated with CoreTel’s failure to pay for facilities.
See
CoreTel I, 752 F.3d at 370–72.
6

CoreTel further argues that the district court violated
our mandate by allowing Verizon to recover TELRIC-based damages
after it had contended, prior to CoreTel I, that its facilities
should be billed at tariff rates.
This argument is similarly
unpersuasive. Far from a violation of the mandate, calculating
and awarding TELRIC-based damages to Verizon was the express
purpose for which we remanded this case to the district court
after CoreTel I. See id.
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the ICAs.

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See id. (“Each Party is responsible for delivering

its terminating traffic to the other Party’s relevant IP.”).
Once

CoreTel

delivers

the

call

to

the

IP,

Verizon

is

responsible for delivering it the rest of the way to the call
recipient.
minute

CoreTel pays Verizon for doing so through a per-

“reciprocal

compensation”

752 F.3d at 369, 373.

charge.

See

CoreTel

I,

In fact, the ICAs define “interconnection

point” to mean “the point at which a Party who receives traffic
originating

on

the

network

of

the

other

Party

assesses

Reciprocal Compensation charges for the further transport and
termination of that traffic.”

ICA § 1.37, J.A. 461.

The ICAs label the point at which CoreTel traffic passes
from CoreTel-owned facilities onto Verizon-owned facilities as
the “point of interconnection” (“POI”). 7

When CoreTel is able to

use its own facilities to deliver traffic all the way to the
relevant Verizon IP, the POI and the IP are necessarily at the
same

location.

But

when

CoreTel

uses

Verizon

facilities

to

which it has purchased access to deliver traffic to the Verizon
IP, the POI and the IP are distinct.
For such situations, the ICAs re-affirm the rule that the
mode

of

compensation

does

not

7

switch

from

TELRIC-based

Specifically, the ICAs define “POI” to mean “the physical
location where the originating Party’s facilities physically
interconnect with the terminating Party’s facilities for the
purpose of exchanging traffic.” ICA § 1.54, J.A. 463.
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facilities charges to reciprocal compensation until the traffic
passes the IP.
originating

See ICA § 4.2.3, J.A. 469 (“To the extent the

Party’s

[POI]

is

not

located

at

the

terminating

Party’s relevant IP, the originating Party is responsible for
transporting its traffic from its POI to the terminating Party’s
relevant IP.”).
facilities

In other words, CoreTel must pay TELRIC-based

charges

for

any

Verizon

facilities

it

uses

to

transport traffic between the POI and the relevant Verizon IP.
With

that

background

in

mind,

we

now

turn

to

CoreTel’s

specific objections to the district court’s damages calculation.
CoreTel contends that the district court erred by (1) including
in

its

with

damages

Verizon

calculation

South

at

any

all;

(2)

facilities
using

the

charges

associated

National

Exchange

Carrier Association’s FCC Tariff No. 4 (“NECA Tariff No. 4”) to
allocate

charges

for

facilities

jointly

provided

by

Verizon

Virginia and Verizon South; (3) using Verizon South’s TELRIC
rate to calculate damages for a multiplexer previously billed at
Verizon Virginia’s (lower) TELRIC rate; (4) including in its
damages

calculation

charges

for

transport

between

Verizon’s

“serving wire centers” and its IPs; (5) imposing 100% of the
TELRIC

rate

for

certain

facilities

for

which

Verizon

had

previously billed CoreTel only a percentage of its tariff rates;
and (6) failing to apply the two-year statute of limitations set
out in 47 U.S.C. § 415(a).

We address CoreTel’s arguments in
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turn below, ultimately rejecting each and affirming the district
court’s

calculation

of

the

TELRIC-based

facilities

charges

CoreTel owes Verizon.
1.
CoreTel first argues that it should not owe any facilities
charges at all to Verizon South because CoreTel traffic always
entered

the

Verizon

network

via

Verizon

Virginia

facilities,

even when the traffic terminated with Verizon South.

According

to CoreTel, it should have to pay only Verizon Virginia, through
whose facilities CoreTel’s traffic enters the Verizon network.
If CoreTel’s traffic thereafter uses Verizon South facilities,
CoreTel contends that Verizon Virginia, not CoreTel, should have
to compensate Verizon South for that use.
The ICAs, however, make clear that CoreTel must pay Verizon
Virginia

for

use

of

Verizon

Virginia

facilities

and

Verizon

South for use of Verizon South facilities, regardless of where
CoreTel traffic enters the Verizon network.

Under section 4.2.2

of the ICAs, “[e]ach Party is responsible for delivering its
terminating
J.A. 469.

traffic

to

the

other

Party’s

relevant

IP.”

Moreover, the Verizon Virginia ICA expressly covers

“services in Verizon Virginia’s service territory . . . only,”
J.A.

612,

and

the

Verizon

South

covers

“only

services in Verizon South’s service territory,” J.A. 619.

Thus,

12

ICA

expressly

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the district court properly included Verizon South facilities
charges where CoreTel used Verizon South facilities.
2.
CoreTel

also

contends

that

the

district

court

erred

by

using NECA Tariff No. 4 to determine how to calculate charges
for facilities located partially in Verizon Virginia territory
and partially in Verizon South territory.
an

industry

standard

telecommunications

methodology

facilities

NECA Tariff No. 4 is

used

located

to

in

establish,

multiple

for

companies’

territories, what percentage of a particular facility should be
billed by each company.

It does not establish actual tariff

rates to be charged by those companies.
CoreTel does not contest that, as a general matter, NECA
Tariff

No.

4

provides

a

proper

methodology

charges for jointly provided facilities.

for

apportioning

Instead, it argues

that the district court’s reliance on NECA Tariff No. 4 was
improper because “this Court has ruled that the ICA’s rates,
terms

and

facilities

conditions--not
Verizon

any

provided.”

Verizon

tariff--apply

Appellant’s

Br.

at

to

44.

the
NECA

Tariff No. 4, however, is not a Verizon tariff; it is a tariff
filed by the National Exchange Carrier Association.

Thus, the

district court’s use of NECA Tariff No. 4 did not contravene our
ruling in CoreTel I that Verizon’s tariffs do not apply here.

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Moreover, the ICAs provide no guidance as to how billing
should be apportioned for facilities jointly provided by Verizon
Virginia and Verizon South.

When the parties to a contract

“have not agreed with respect to a term which is essential to a
determination of their rights and duties,” the court supplies “a
term which is reasonable in the circumstances.”

Restatement

(Second) of Contracts § 204 (1981).

Here, the district court’s

decision

standard

to

rely

on

an

industry

methodology

was

eminently reasonable. 8
3.
We

next

address

CoreTel’s

contention

that

the

district

court erred by using Verizon South’s TELRIC rate (rather than
Verizon Virginia’s) to calculate what CoreTel owes Verizon for
CoreTel’s
Virginia.

use

of

a

multiplexer

located

in

Great

Bridge,

Great Bridge is in Verizon South’s territory.

But

between January 2008 and March 2009, Verizon’s monthly bills

8

CoreTel’s other complaints concerning NECA Tariff No. 4
are equally unavailing. CoreTel asserts that NECA Tariff No. 4
is “inconsistent with the TELRIC methodology,” Appellant’s Br.
at 44, but offers neither an explanation of this purported
inconsistency nor any alternative method for apportioning
facilities charges for jointly provided facilities.
CoreTel
also incorrectly claims that Verizon did not introduce NECA
Tariff No. 4 at trial. Although it is true that Verizon did not
introduce the entire nationwide tariff (most of which would have
been irrelevant), Verizon did introduce into evidence the
specific billing percentages from NECA Tariff No. 4 it relied
on.
Those percentages appeared on Verizon’s monthly bills to
CoreTel, and CoreTel did not contest their accuracy at trial.
14

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identified
Virginia.
mistake

Filed: 11/13/2015

that

multiplexer

as

being

provided

by

Verizon

At trial, Verizon introduced evidence that this was a
and

associated

that

the

with

Verizon

Verizon

request,

Pg: 15 of 27

billed

multiplexer
South.
the

should

always

Accordingly,

Great

Bridge

in

have
its

been

damages

multiplexer

at

the

Verizon South TELRIC rate (which is substantially higher than
the Verizon Virginia rate), except for the months for which its
bills had affirmatively associated the multiplexer with Verizon
Virginia.
the

For those months, Verizon gave CoreTel the benefit of

purported

billing

error

and

charged

the

lower

Verizon

Virginia rate.
As

CoreTel’s

president

conceded

at

trial,

there

is

no

dispute that the Great Bridge multiplexer is located in Verizon
South

territory.

See

J.A.

405–06.

Nevertheless,

CoreTel

contends that Verizon did not catch this mistake in previous
estimates of the damages CoreTel owes it, and should not be
permitted

to

“change

the

facts

at

its

whim,

after

remand.”

Appellant’s Br. at 46.
CoreTel’s argument is without merit.
to

present

its

evidence

at

trial

that

Verizon was entitled
the

Great

Bridge

multiplexer should always have been billed at Verizon South’s
rate, just as CoreTel was entitled to counter with Verizon’s
monthly bills and prior damages calculations that showed the
Great Bridge multiplexer being associated with Verizon Virginia
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at times.

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The district court considered both parties’ evidence,

and it did not clearly err in finding that Verizon’s was more
persuasive, particularly given CoreTel’s president’s concession
that the Great Bridge multiplexer is in Verizon South territory.
4.
We turn next to CoreTel’s argument that the district court
erred

by

including

transport

between

in

its

Verizon’s

relevant Verizon IP.

damages

calculation

“serving

wire

facility”

designated

centers”

and

for
the

This is essentially a dispute about the

definition of the term “entrance facility.”
“entrance

charges

to

premises

designated premises.”

mean

and

“the

the

facility

Central

The ICAs define
between

Office

ICA § 1.25, J.A. 460.

a

Party’s

serving

that

CoreTel contends

that when it purchases use of an entrance facility, transport to
the relevant Verizon IP is included in that purchase.

Verizon,

on the other hand, contends that an entrance facility ends at
the Verizon switch nearest to CoreTel’s premises--Verizon calls
this the “serving wire center”--and that CoreTel therefore must
purchase additional transport to get its traffic to the relevant
Verizon IP.
Verizon’s

interpretation

language of the ICAs.
entrance

facility

adheres

more

closely

to

the

The ICAs’ definition establishes that an

begins

at

“[CoreTel]’s

designated

premises”

and ends at Verizon’s “Central Office serving that designated
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premises.”

Id.

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Pg: 17 of 27

The ICAs define “Central Office” as “a local

switching system for connecting lines to lines, lines to trunks,
or trunks to trunks for the purpose of originating/terminating
calls over the public switched telephone network.”

ICA § 1.11,

J.A.

the

458.

Thus,

the

entrance

facility

ends

at

Verizon

switch nearest the point of interconnection, and CoreTel must
pay for any additional transport needed to reach the relevant
Verizon IP, which, as we have explained, may be located at a
different point.

The district court did not err by including

charges for such transport in its damages calculation.
5.
We next address CoreTel’s argument that the district court
erred by imposing 100% of the TELRIC rate for certain facilities
for

which

Verizon

had

previously

percentage of its tariff rates.

billed

CoreTel

only

a

CoreTel contends that Verizon’s

bills show it only partially used the facilities in question and
should therefore be billed only a partial TELRIC rate.

The

district court, however, found that the facilities in question
had

been

completely

dedicated

to

CoreTel’s

use,

and

as

we

explain below, that finding was not clearly erroneous.
Under Verizon’s tariffs, different rates applied to certain
facilities,

depending

on

what

17

type

of

access

the

customer

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required--switched

access

or

Pg: 18 of 27

special

access. 9

When

CoreTel

customers used a single Verizon facility for both special and
switched access, Verizon charged the two rates proportionally on
its tariff-based monthly bills.

See, e.g., J.A. 694 (billing

57.14% of the tariff rate for switched access and 42.86% of the
tariff rate for special access).

The TELRIC rates, however, do

not differentiate between special and switched access.

Thus,

when Verizon re-calculated its bills applying TELRIC rates, it
simply charged 100% of the TELRIC rate for facilities that had
previously been split between special and switched access.
In several instances, Verizon’s tariff-based bills stated a
proportional

charge

for

one

type

counterpart for the other type.
57.14%

of

the

tariff

rate

for

of

access,

but

omitted

a

See, e.g., J.A. 694 (billing
switched

corresponding line-item for special access).

access

without

a

At trial, Verizon

presented evidence that these omissions were billing errors and
that CoreTel had in all cases used the entire facility.
disputed

that

evidence,

arguing

9

that

the

omissions

CoreTel
actually

“Special access” occurs when the facility in question is
used
for
a
dedicated,
exclusive
connection
between
two
particular users.
Under “switched access,” in contrast, a
facility is not dedicated to a particular end user. See, e.g.,
WorldCom, Inc. v. Fed. Commc’ns Comm’n, 238 F.3d 449, 453 (D.C.
Cir. 2001).
A detailed understanding of the difference is not
necessary here--the salient points are that Verizon’s tariffs
establish a different rate for each type of access, and that
Verizon charged a blended rate when a single facility was used
for both types.
18

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showed

Filed: 11/13/2015

that

facilities

CoreTel

and

should

had

Pg: 19 of 27

used

only

therefore

be

part

of

charged

the

only

relevant

part

of

the

do

not

TELRIC rate for those facilities.
The

district

court

found

that

“[t]he

invoices

support CoreTel’s argument,” and that the relevant facilities
“were

entirely

dedicated

to

CoreTel’s

use,”

and

therefore

included 100% of the TELRIC rate for the relevant facilities in
its damages calculation.

J.A. 448.

court’s

as

factual

finding

We will overturn a district

clearly

erroneous

only

if

we

are

“left with a definite and firm conviction that a mistake has
been committed.”

Evergreen Int’l, S.A. v. Norfolk Dredging Co.,

531 F.3d 302, 308 (4th Cir. 2008) (citation omitted).
cases

in

which

assessments

a

of

district
witness

court’s

factual

credibility

or

findings
the

And “[i]n
turn

weighing

on
of

conflicting evidence during a bench trial, such findings are
entitled to even greater deference.”

Helton, 709 F.3d at 350.

Here, the district court’s finding that CoreTel used 100%
of

the

facilities

in

question

was

based

on

its

weighing

of

conflicting evidence--Verizon’s original bills charging CoreTel
for only part of certain facilities against Verizon’s evidence
that those original bills were mistaken.
the

district

court

should

have

CoreTel contends that

weighed

that

evidence

differently, but falls far short of showing that the district
court

clearly

erred.

Accordingly,
19

we

affirm

the

district

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court’s

Filed: 11/13/2015

determination

that

Pg: 20 of 27

CoreTel

owes

Verizon

100%

of

the

TELRIC rate for the facilities CoreTel used.
6.
Finally, we address CoreTel’s contention that the district
court should have applied the two-year statute of limitations
set

out

actions

in

47

at

U.S.C.

law

by

§

415(a),

carriers

which

for

requires

recovery

“[a]ll

their

of

that

lawful

charges . . . be begun within two years from the time the cause
of action accrues.”

Were that statute of limitations to apply,

Verizon would be barred from seeking facilities charges incurred
before

July

2010.

We

hold

that

CoreTel

waived

reliance

on

47 U.S.C. § 415(a) by failing to raise this defense below.
Before
statute
sought

of
to

the

district

limitations
apply

the

court,

in

47

CoreTel

U.S.C.

statute

of

§

never
415(a).

limitations

mentioned
Instead,
set

forth

the
it
in

subsection (b) of the same statute, which applies to “complaints
against

carriers

overcharges.”

for

the

recovery

47 U.S.C. § 415(b).

of

damages

not

based

on

The parties’ briefing before

the district court focused on whether the section 415(b) statute
of

limitations

telecommunications

could

apply

carriers

to

an

concerning

action
a

between

breach

of

two
an

interconnection agreement, as opposed to a complaint against a
telecommunications carrier by a customer of that carrier.

The

district court declined to apply section 415(b), and CoreTel
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Pg: 21 of 27

does not take issue with that decision on appeal.
attempts

to

limitations

show

that

defense

it

sufficiently

based

on

section

fails

to

raise

raised

415(a)

Rather, it

a

to

statute-ofpreserve

the

issue for appeal.
When

a

party

a

statute-of-limitations

defense before the district court, it waives the right to do so
on appeal.

See, e.g., Verizon Md., Inc. v. Global NAPS, Inc.,

377 F.3d 355, 369 (4th Cir. 2004).

It is not enough for a party

to raise “a non-specific objection or claim.”
749 F.3d 276, 287 (4th Cir. 2014).

In re Under Seal,

“[I]f a party wishes to

preserve an argument for appeal, the party must press and not
merely intimate the argument during the proceedings before the
district court.”

Id. (citation omitted).

In other words, the

party must raise the argument in a manner sufficient “to alert
the

district

relief.

court

to

the

specific

reason”

the

party

seeks

United States v. Bennett, 698 F.3d 194, 199 (4th Cir.

2012).
In

support

of

its

contention

that

it

sought

to

apply

section 415(a) before the district court, CoreTel points only to
(1) its statement in its answer that Verizon’s counterclaims are
“barred by the statute of limitations,” J.A. 94; (2) a reference
in its post-bench-trial proposed findings of fact to section 415
in

general

citation

of

(without
a

case

specifying
to

the
21

a

subsection);

district

court

and
that

(3)

its

applied

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Pg: 22 of 27

section 415(b), but whose reasoning (CoreTel asserts) is equally
applicable to section 415(a).

See Reply Br. at 29.

In none of

these instances did CoreTel invoke section 415(a) with anything
close to the specificity that would have been required to alert
the

district

court

that

it

needed

to

analyze

whether

statute might bar certain damages Verizon sought.
CoreTel

has

waived

any

right

it

may

have

that

Accordingly,

had

to

assert

section 415(a)’s statute of limitations on appeal.
D.
Having

affirmed

the

district

court’s

calculation

of

the

TELRIC-based facilities charges CoreTel owes Verizon, we turn to
CoreTel’s challenge of the district court’s award of $138,724.47
in late fees to Verizon.

CoreTel argues (1) that it cannot owe

late fees under the ICAs because Verizon has never issued it
formal bills at the proper TELRIC rates, (2) that Virginia law
limits

any

late

fees

to

5%

per

year

rather

than

the

ICA-

prescribed 18% per year that the district court imposed, and
(3) that the principal on which any late fees are calculated
should be offset by certain payments Verizon has withheld from
CoreTel during the course of this litigation.

As we explain

below, we do not find CoreTel’s arguments persuasive.
1.
CoreTel

argues

that

Verizon’s

failure

to

issue

formal

TELRIC-based bills precludes Verizon from charging late fees.
22

Appeal: 15-1008

As

Doc: 33

a

general

Filed: 11/13/2015

matter,

authorize late fees.

the

Pg: 23 of 27

ICAs’

billing

provisions

plainly

Section 28.8.1 of the ICAs requires each

party to submit “on a monthly basis an itemized statement of
charges

incurred

month(s)

for

hereunder.”

by

the

services,
J.A. 546.

other

Party

facilities

during

or

the

arrangements

preceding
provided

Section 28.8.7 of the ICAs subjects

CoreTel to a late-payment charge on any “[c]harges which are not
paid by the due date stated on Verizon’s bill.”

J.A. 547.

Verizon issued monthly bills to CoreTel, but its bills were
based on tariff rates.
improper.

We have held that those rates were

See CoreTel I, 752 F.3d at 372.

But when the party

receiving a bill disputes the amount purportedly due, the ICAs
do not permit that party to refuse to pay anything at all for
the billed services.

Rather, under Section 28.8.3, the party

remains

“pay

obligated

amounts.”
receive

to

J.A. 546.

facilities

when

due

.

.

.

all

undisputed

CoreTel has never argued that it should

from

Verizon

for

free;

its

always been that it should pay under TELRIC rates.

position

has

But CoreTel

elected not to pay even that undisputed amount--an amount it
could

have

estimated

based

on

23

the

information

in

Verizon’s

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tariff-based bills.

Pg: 24 of 27

CoreTel therefore incurred late fees under

the ICAs. 10
2.
CoreTel further argues that Virginia law requires any latefee award to be limited to 5% per year.

CoreTel relies on Va.

Code Ann. § 6.2-400, which provides that “[a]ny lender or seller
may impose a late charge for failure to make timely payment of
any installment due on a debt, whether installment or single
maturity, provided that such late charge does not exceed five
percent

of

the

Verizon

sought

amount
and

of

the

such

installment

district

court

payment.”

awarded

late

Here,
fees

at

18% per year (1.5% per month) based on the ICAs’ provision in
Section 28.8.7 that late fees “shall be an amount specified by
Verizon

which

percent

.

.

shall
.

of

not
the

exceed
overdue

a

rate

amount

of

one

(including

previously billed late payment charges) per month.”
Once

an

ICA

has

been

approved

and

by

a

one

any

half

unpaid

J.A. 547.

state

utilities

commission, its provisions are not subject to attack on state10

CoreTel also contends that Verizon waived any right to
collect late fees because each of the monthly bills in the
record contain a line item specifying $0.00 in “Late Payment
Charges Applied.”
See J.A. 639, 714, 753.
The ICAs’ antiwaiver provision bars this argument. See ICA § 28.18, J.A. 551
(“A failure or delay of either Party to enforce any of the
provisions hereof, to exercise any option which is herein
provided, or to require performance of any of the provisions
hereof shall in no way be construed to be a waiver of such
provisions or options.”).
24

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law grounds.

Filed: 11/13/2015

Pg: 25 of 27

In Core Commc’ns, Inc. v. Verizon Md. LLC, we

explained that, by requiring state-commission approval of ICAs,
the

Act

“creates

identifying

and

a

narrowly

evaluating

any

defined

time

state-level

and

policy

forum
that

for
might

invalidate part or all of an ICA,” rendering ICAs immune from
“any subsequent attack on the basis of a state law principle.”
744 F.3d 310, 323 (4th Cir. 2014).

Virginia’s state utilities

commission approved both of the ICAs at issue here, including
their late-fee provisions.

Thus, CoreTel may not now claim that

those provisions violate Virginia law. 11
3.
Finally, CoreTel argues that the district court should have
reduced the principal amount on which CoreTel’s late fees were
calculated to account for certain payments Verizon has withheld
from

CoreTel

during

the

course

of

this

litigation.

The

withholdings in question arise from the terms of the stay of
judgment
CoreTel

the
I.

district
Under

court

that

entered

judgment,

pending
Verizon

our

decision

would

have

entitled to a net payment from CoreTel of $890,000.
02, 105.

in

been

J.A. 101–

Rather than posting a bond as a condition for the stay

pending appeal, CoreTel agreed that Verizon would be able to

11

This principle also dooms CoreTel’s argument that the
district court’s late-charges award constitutes impermissible
liquidated damages under Virginia law.
25

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withhold

Filed: 11/13/2015

future

Pg: 26 of 27

reciprocal-compensation

payments

“to satisfy in part the stipulated judgment.”
in

CoreTel

district

I,

we

court’s

reversed
judgment

and

remanded

dealing

with

from

J.A. 104.

the

portion

Verizon’s

CoreTel
After,
of

the

facilities

claims, the parties did not re-negotiate the terms of the stay,
and

Verizon

payments.

continued

to

withhold

reciprocal-compensation

At the time of the bench trial, Verizon had withheld

approximately $92,000.
CoreTel

contends

See J.A. 264.
that

every

time

Verizon

withheld

a

reciprocal-compensation payment that would otherwise have been
due

to

CoreTel,

CoreTel’s

outstanding

balance

for

charges should have been reduced by an equal amount.

facilities
But the

terms of the stay provide no support for CoreTel’s position.
The stay requires only that Verizon apply the withheld payments
“to satisfy in part the stipulated judgment,” and do not specify
any particular portion of the judgment to which the payments
must be applied.

Thus, Verizon was free to apply its withheld

payments however it saw fit.

For example, Verizon could have

paid down the late fees themselves instead of the principal on
which the late fees are calculated.

The evidence before the

district court did not establish exactly how Verizon applied the
withheld

payments,

but

it

did

make

clear

that

Verizon

had

applied them in a way that did not reduce CoreTel’s outstanding
facilities charges.

Thus, the district court properly based its
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late-fee calculation on the entire amount of those outstanding
facilities charges.

III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.

27