AT&T Communications of California, Inc. et al v. Pac-West Telecomm, Inc. et al

Filing 128

ORDER FOLLOWING REMAND. Signed by Judge JEFFREY S. WHITE on 10/11/11. (jjoS, COURT STAFF) (Filed on 10/11/2011)

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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AT&T COMMUNICATIONS OF
CALIFORNIA, INC., et al.

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No. C 06-07271 JSW

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ORDER FOLLOWING REMAND
v.

For the Northern District of California

United States District Court

Plaintiffs,
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PAC-WEST TELECOMM, INC., et al.
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Defendants.
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On June 21, 2011, the United States Court of Appeals for the Ninth Circuit reversed this

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Court’s decision to grant the Defendants’ cross-motion for summary judgment and to deny

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Plaintiffs’ motion for summary judgment. AT&T Telecommunications of California, Inc. v.

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Pac-West Telecomm, Inc., 651 F.3d 980, 2011 WL 2450986 (9th Cir. 2011). The Court held a

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case management conference on September 16, 2011, and the parties were unable to agree on

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the language of a proposed Order or Judgment in light of the Ninth Circuit’s ruling. The Court

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has considered the parties’ positions set forth in a case management statement filed by Plaintiffs

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and Pac-West, and the CPUC Defendants’ separate statement. (Docket Nos. 126-127.) The

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Court notes that when it voiced the opinion that the dispute was finally resolved, it was

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referring only to the proceedings in this Court.

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The parties stipulated to all the material facts and, thus, this Court and the Ninth Circuit

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were presented with the purely legal issue of whether the whether the compensation regime set

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forth in In the Matter of Implementation of the Local Competition Provisions in the

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Telecommunications Act of 1996, Intercarrier Compensation for ISP-Bound Traffic, 16

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F.C.C.R. 9151 (2001) (“ISP Remand Order”) applied to ISP bound traffic exchanged between

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two competitive local exchange carriers (“CLECs”). The Ninth Circuit held that it did and, as a

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result, determined that the California Public Utilities Commission decision to rely on Pac-

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West’s state-filed tariffs to set the rates for such traffic was preempted and invalid. AT&T

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Telecommunications, 651 F.3d at __, 2011 WL 2450986 at *16 & n.20. Accordingly, for the

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reasons set forth in that opinion, AT&T’s motion for summary judgment is granted, and the

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Defendants’ cross-motions for summary judgment are denied.

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AT&T is entitled to a declaration that CPUC Decision 06-06-055 (the “Decision”) is
preempted by the Communications Act of 1934, the Telecommunications Act of 1996, and the

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For the Northern District of California

United States District Court

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FCC’s Implementing Regulations, and therefore is invalid, because the ISP Remand Order’s

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compensation regime applies to ISP bound traffic exchanged between two CLECs. AT&T

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Telecommunications, 651 F.3d at __, 2011 WL 2450986 at *2, *16 & n.20. The Court also

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shall issue the injunction requested by AT&T, specifically, that “[t]he Defendants are enjoined

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from enforcing the Decision against AT&T, and from enforcing Pac-West’s California intrastate

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tariff for payment for any ISP-bound traffic originated by AT&T that is terminated by Pac-

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West.” (See Docket No. 1 (Compl., Prayer for Relief ¶ 2), Docket No. 121 (Proposed Judgment

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¶ 2).)

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It is FURTHER ORDERED that the Court awards to AT&T a judgment in the principal

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sum of $10,112.687.44, together with interest at the applicable rate, which represents the

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amounts paid by AT&T to Pac-West pursuant to the now-void Decision for the period of time

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ending on or about August 21, 2006.

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It is FURTHER ORDERED that all amounts paid by AT&T into the registry of the

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Clerk of the United States District Court for the Northern District of California pursuant to this

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Court’s April 13, 2007 Order, together with all interest accrued thereon, shall be released to

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AT&T, which represents amounts paid by AT&T to Pac-West pursuant to the now-void

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decision for the period of time beginning on or about August 22, 2006 to the present.

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//
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The Court shall issue a separate judgment, and the Clerk shall close this file.

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IT IS SO ORDERED.

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Dated: October 11, 2011
JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

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cc: Finance Department
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For the Northern District of California

United States District Court

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