Puerto Rico Telephone Company, Inc. v. Telecommunications Regulatory Board of Puerto Rico et al

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATION NUNC PRO TUNC for 26 Report and Recommendation. The Court detected an error in the last paragraph of page 5, which is now corrected. This correction does not alter the final ruling of the Court, hence, there is no need to issue an amended judgment. IT IS SO ORDERED. Signed by Judge Daniel R. Dominguez on 4/5/2014.(JAM)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
P.R. TELEPHONE CO., INC.,
Plaintiff(s),

Civil No. 13-1186 (DRD)

TELECOMM. REGULATORY BOARD OF P.R.
ET., AL.,
Defendant(s).

ORDER ADOPTING REPORT AND RECOMMENDATION NUNC PRO TUNC
Pending before the Court are: Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(6) filed by co-defendant WorldNet Telecommunications, Inc. (hereinafter “WorldNet”),
Docket No. 14; Response to Motion to Dismiss filed by Puerto Rico Telephone Co. (hereinafter “PRTC”)
Docket No. 15; WorldNet’s Reply to Response to Motion to Dismiss, Docket No. 18; (d) Report and
Recommendation issued by the Magistrate Judge Silvia Carreno-Coll (hereinafter “Magistrate Judge”),
Docket No. 25. For the reasons set forth below, defendant WorldNet’s request for voluntary dismissal
without prejudice is granted.
Factual and Procedural Background
The purpose of the Telecommunications Act of 1996 (“The Act”) is to promote competition in the
local telephone services market. See 104 P.L. 104, 2; Puerto Rico Tel. Co. v. Telecommunications
Regulatory Bd., 189 F.3d 1, 7 (1st Cir. 1999). The Act imposes statutory duties on incumbent local exchange
carriers (“ILECs”) to share their networks with competitive local exchange carriers (“CLECs”), 47 U.S.C.
§ 251©. ILECs have the duty to offer its retail services at wholesale rates to competing carriers that will
resell the services at retail prices, 47 U. S.C. § 251(c)(4). The ILEC may negotiate and enter into binding
agreements with CLECs these agreements referred to as interconnection agreements must be submitted to
the state utility commission for approval or rejection, 47 U.S.C. §252(a)(1). When seeking jurisdiction over
a determination other than an approval or rejection, of an interconnection agreement, there must be a

“substantial nexus between the commission’s determination and the interconnection agreement. Puerto Rico
Tel. Co., 189 F.3d at 10.
The Court notes that the Magistrate Judge’s Report & Recommendation is unopposed by either party
therefore the Court hereby adopts all the finding of fact as stated in said Report and Recommendation Docket
No. 25. Suffice it to say that this case concerns the Telecommunications Regulatory Board of Puerto Rico’s
(herein after “the Board”)interpretation of a 2010 interconnection agreement entered into by PRTC and co
defendant WorldNet.

The crux of the matter lies in the Board’s determination that WorldNet could have

a ten (10) day extension to formally request mediation, as to a particular dispute it was having with PRTC.
For obvious reasons PRTC is in disagreement with the ten (10) day extension granted by the Board and its
findings on the matter. As such PRTC filed suit in federal court claiming this Court had jurisdiction to review
the Board’s order granting the extension pursuant to Section 252. WorldNet filed a Motion to Dismiss
Pursuant to Federal Rule of Civil Procedure 12(b)(6), Docket No. 14, alleging this court lacked jurisdiction
over the matter.
As such this matter was referred to the Magistrate Judge for a report and recommendation, (D. E. 14,
15 and 18). On February 6, 2014, the Magistrate Judge entered a Report and Recommendation, Docket
No. 25. The Magistrate Judge recommended that the co-defendant’s motion to dismiss, Docket No. 14, be
GRANTED and the complaint, Docket No. 1 be DISMISSED. As of this date, no objections have been
timely filed, thus, the Court deems this matter submitted. For the reasons set forth below, the Report and
Recommendation issued by the Magistrate Judge, Docket No. 25, is hereby adopted in toto, as supplemented
herein.
Standard of Review
The district court may refer dispositive motions to a United States Magistrate Judge for a report and
recommendation.

28 U.S.C. § 636(b)(1)(B); Rule 72(b) of the Federal Rules of Civil Procedure

(“Fed.R.Civ.P.”); Local Civil Rule 503 of the Local Rules of the United States District Court for the District

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of Puerto Rico (“L.Civ.R.”). See: Mathews v. Weber, 423 U.S. 261 (1976).
An adversely affected party may contest the Magistrate’s report and recommendation; 28 U.S.C. §
636(b)(1), in its pertinent part states: “within ten days of being served with a copy, any party may serve and
file written objections to such proposed findings and recommendations as provided by rules of court. A
judge of the court shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate”. Failure to file objections
within the specified time waives the right to appeal the District Court’s order , See: Local Rule 510.2(A),
Thomas v. Arn., 474 U.S. 140 (1985).
“Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the
magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F. 2d 245, 247 (1st Cir. 1985), cert.
denied, 474 U.S. 1021 (1985). Moreover, “failure to raise objections to the Report and Recommendation
waives that party’s right to review in the district court, and those claims not preserved by such objections
are precluded on appeal.” Nogueras-Cartagena v. United States, 172 F.Supp.2d 296 (D. Puerto Rico, 2001)
affirmed by Nogueras-Cartagena v. United States, 75 Fed. Appx. 795 (1st Cir. (Puerto Rico) 2003) (not
selected for publication in the Federal Reporter, No. 03-1113), cert. denied by Nogueras-Cartagena v.
Department of Justice, 540 U.S. 1183 (2004), Davet v. Maccarone, 973 F. 2d 22, 30-31 (1st Cir. 1992).
In the instant case, no objections to the Magistrate Judge’s Report and Recommendation have been
filed. Thus, in order to accept the unopposed Report and Recommendation, the Court needs only satisfy
itself by ascertaining that there is no "plain error" on the face of the record. Nogueras-Cartagena v. United
States, Id.; See: Douglas v. United Servs. Auto, Ass'n, 79 F.3d 1415, 1419 (5th Cir. 1996)(en
banc)(extending the deferential "plain error" standard of review to the unobjected legal conclusions of a
magistrate judge); Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982)(en banc)(appeal from district
court's acceptance of unobjected findings of magistrate judge reviewed for "plain error"); Garcia v. I.N.S.,

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733 F.Supp. 1554, 1555 (M.D.Pa. 1990)("when no objections are filed, the district court need only review
the record for plain error").
As previously explained, since the Magistrate Judge's Report and Recommendation is unopposed,
this Court has only to be certain that there is no "plain error" as to the Magistrate Judge's conclusions, in
order to adopt the same. Hence, after a careful analysis, the Court finds no "plain error" and agrees with the
Magistrate Judge's conclusions. “There is little point in attempting to reinvent a well-fashioned wheel.
Where, as here, a magistrate judge astutely takes the measure of a case and hands down a convincing, wellreasoned decision, [the Court] should refrain from writing at length to no other end than to hear its own
words resonate.” Nogueras at 305 citing Corrada Betances v. Sea-Land Service, Inc. 248 F.3d 40, 42 (1st Cir.
2001); Lawton v. State Mut. Life Assur. Co., 101 F.3d 218, 220 (1st Cir. 1996).
The Court is particularly impressed by the fact the Seventh Circuit has expressly decided that state
interconnection agreements constitute fundamentally state law questions of contract interpretation. Illinois
Bell Tel. Co. v. Worldcom Technologies, Inc., 179 F.3d 556, 569 (7th Cir.1999) (calling for adjudication by
the states under the law of contracts). The United States Court of Appeals for the First Circuit (“First
Circuit”) has suggested that this decision is correct. Puerto Rico Telephone Company, Inc. v. SprintCom,
Inc., 662 F.3d 74, 87 (1st Cir.2011). The Fifth, Sixth and Ninth Circuits have come to the same conclusion,
as well studied by the Magistrate Judge. See Report and Recommendation, Docket No. 25, pages 8-9 and
Fn.4, citing Global NAPs California, Inc. v. Public Utilities Com’n of State of California, 624 F.3d 1225
(9th Cir.2010); Michigan Bell Telephone Co. v. MCIMetro Access Transmission Services, Inc., 323 F.3d 348
(6th Cir. 2003); Southwestern Bell Telephone Co. v. Public Utility Com’n of Texas, 208 F.3d 475
(5th Cir.2000).
Hence, the facts, as found by the Board and the Magistrate Judge are subject to the “plain error” test.
The Court finds no plain error and agreed with the analysis of the Magistrate Judge, Docket No. 25,
pages 12-14.

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Analysis
As stated above, the Report and Recommendation issued by the Magistrate Judge, Docket No. 25,
stands unobjected. After a careful review and in absence of plain error, the Court hereby ACCEPTS,
ADOPTS and INCORPORATES by reference, the Magistrate Judge’s Report and Recommendation,
Docket No.25, to the instant Order.
Conclusion
For the reasons stated above, the Court finds that there is no plain error in the Magistrate Judge’s
Report and Recommendation, Docket No. 25. Hence, the Report and Recommendation is hereby adopted
in toto, as supplemented herein, and the instant action is DISMISSED WITHOUT PREJUDICE.
Judgment is to be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 5th day of April, 2014.
s/Daniel R. Domínguez
DANIEL R. DOMINGUEZ
United States District Judge

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