Michigan Bell Telephone Company v. Lark et al

Filing 43

ORDER re 42 Appeal Order/Opinion/Judgment. Signed by District Judge Julian Abele Cook. (KDoa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHIGAN BELL TELEPHONE COMPANY d/b/a
AT&T MICHIGAN,
Plaintiff,
v.
Case number 06-11982
J. PETER LARK, LAURA CHAPPELLE, and
MONICA MARTINEZ, in their official capacities as
commissioners of the Michigan Public Service
Commission,

Honorable Julian Abele Cook, Jr.

Defendants,
and
COVAD COMMUNICATIONS CO., McLEOD USA
TELECOMMUNICATIONS SERVICES, INC.,
TALK AMERICA, INC., TDS METROCOM, L.L.C.,
and XO COMMUNICATIONS SERVICES, INC.
Defendant-Intervenors.

ORDER
This case involves an appeal by the Plaintiff, Michigan Bell Telephone Company, doing
business as AT&T Michigan (“AT&T”), from an opinion and order that had been issued on
September 20, 2005, by the Defendants, J. Peter Lark, Laura Chappelle, and Monica Martinez, in
their capacities as commissioners of the Michigan Public Service Commission (“MPSC”). The

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Court subsequently granted five telecommunications companies1 leave to intervene as of right as
Defendants in this matter. Dispositive motions followed, in that (1) AT&T filed a motion for
summary judgment in which it raised five separate arguments with respect to the challenged MPSC
order, and (2) the Defendant-Intervenors jointly filed a cross-motion for summary judgment.2 The
Court granted a summary judgment in favor of AT&T regarding three of its arguments and in favor
of the Defendant-Intervenors relating to the remaining two contentions. Mich. Bell Tel. Co. v. Lark,
No. 06-11982, 2007 WL 2868633 (E.D. Mich. Sept. 26, 2007). The Defendant-Intervenors
appealed this order to the Sixth Circuit with respect to only one of the five issues. The Sixth Circuit
affirmed. Mich. Bell Tel. Co. v. Covad Commc’ns, Inc., 597 F.3d 370 (6th Cir. 2010). The Supreme
Court subsequently granted the Defendant-Intervenors’ writ of certiorari, and reversed the decision
by the Sixth Circuit. Talk Am., Inc. v. Mich. Bell. Tel. Co., 131 S. Ct. 2254 (2011). In response to
this decision by the Supreme Court, the Sixth Circuit (1) reversed the prior judgment by this Court,
and (2) remanded the matter to this Court for the entry of an order which would be consistent with
the directive by the Supreme Court. Mich. Bell. Tel. Co. v. Covad Commc’ns, Inc., 674 F.3d 598
(6th Cir. 2012).
The issues that have been raised in this case have been exhaustively detailed in the earlier
decisions by this Court, the Sixth Circuit, and the Supreme Court, and will not be repeated here.
As relevant for present purposes, the Court, in its 2007 order, opined that the MPSC had erred when

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These companies were Covad Communications Co., McLeod USA Telecommunications
Services, Inc., Talk America, Inc., TDS Metrocom, L.L.C., and XO Communications Services,
Inc.
2

The MPSC Defendants did not file a dispositive motion of their own, but did submit a
response in opposition to AT&T’s dispositive motion.
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it determined that AT&T was required to provide entrance facilities to its competitors at cost-based
rates. The Defendant-Intervenors appealed this determination.
During the pendency of the appeal, the Sixth Circuit sought the opinion of the Federal
Communications Commission (“FCC”), which, through a subsequently filed amicus brief, stated
that the MPSC order conformed with its interpretation of the relevant statutes and regulations.
However, the majority of the Sixth Circuit panel disagreed with this viewpoint, finding its
interpretation to be inconsistent with the plain language of an earlier FCC order. Thus, the Sixth
Circuit held - as did this Court - that AT&T could provide access to entrance facilities at market
rather than cost-based rates. In contrast, the dissent argued that, pointing to Auer v. Robbins, 519
U.S. 452, 461 (1997), the court was required to give deference to the FCC’s interpretation as
expressed in its amicus brief.
The Supreme Court concurred with the dissent’s analysis, and held that, even though the
FCC’s evaluation of the relevant regulations was “a novel interpretation,” 131 S. Ct. at 2263, it had
provided a reasonable interpretation of the regulations to which the Court was required to grant
deference. Thus, the Supreme Court held that AT&T must lease its existing entrance facilities,
when used for the purpose of interconnection, at cost-based rather than market rates to competitive
local exchange carriers.
Acting in accordance with the directives by the Sixth Circuit, the Court grants the
Defendant-Intervenors’ cross-motion for the entry of a summary judgment as to whether the MPSC
order properly required AT&T to make entrance facilities available to competitive local exchange
carriers at cost-based rates when they are used for interconnection purposes. All other aspects of
the 2007 order by this Court remain unchanged.

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IT IS SO ORDERED.

Date: May 8, 2012

s/Julian Abele Cook, Jr.
JULIAN ABELE COOK, JR.
U.S. District Court Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective
email addresses or First Class U.S. mail to the non-ECF participants on May 8, 2012.
s/ Kay Doaks
Case Manager

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