Sprint Communications Company LP v. Central Telephone Company of Texas et al

Filing 42

MEMORANDUM OPINION AND ORDER granting Motion to Dismiss filed by Defendants' Lead Counsel, Defendants' Liaison Counsel, with leave to replead plaintiffs' state-law claims; denying MOTION to Dismiss on Primary Jurisdiction Grounds or, in the Alternative, for Stay Pending Referral. (Ordered by Judge Sidney A Fitzwater on 11/17/2015) (Ordered by Judge Sidney A Fitzwater on 11/17/2015) (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
IN RE: INTRAMTA SWITCHED
ACCESS CHARGES LITIGATION

THIS DOCUMENT RELATES TO
CIVIL ACTION NOS.
3:14-CV-1724-D, 3:14-CV-3210-D,
3:14-CV-4418-D, 3:14-CV-4420-D,
3:14-CV-4422-D, 3:14-CV-4423-D,
3:14-CV-4424-D, 3:14-CV-4425-D,
3:14-CV-4426-D, 3:14-CV-4427-D,
3:14-CV-4428-D, 3:14-CV-4429-D,
3:14-CV-4430-D, 3:14-CV-4433-D,
3:14-CV-4445-D, 3:14-CV-4446-D,
3:14-CV-4447-D, 3:14-CV-4460-D,
3:14-CV-4469-D, 3:14-CV-4470-D,
3:14-CV-4472-D, 3:14-CV-4473-D,
3:14-CV-4474-D, 3:14-CV-4546-D,
3:14-CV-4547-D, 3:14-CV-4561-D,
3:14-CV-4564-D, 3:14-CV-4571-D,
3:14-CV-4572-D, 3:14-CV-4573-D,
3:14-CV-4574-D, 3:14-CV-4577-D,
3:14-CV-4579-D, 3:14-CV-4580-D,
3:14-CV-4581-D, 3:14-CV-4585-D,
3:15-CV-0019-D, 3:15-CV-0020-D,
3:15-CV-0021-D, 3:15-CV-0022-D,
3:15-CV-0023-D, 3:15-CV-0033-D,
3:15-CV-0034-D, 3:15-CV-0035-D,
3:15-CV-0036-D, 3:15-CV-0040-D,
3:15-CV-0044-D, 3:15-CV-0045-D,
3:15-CV-0047-D, 3:15-CV-0066-D,
3:15-CV-0078-D, 3:15-CV-0114-D,
3:15-CV-0115-D, 3:15-CV-0128-D,
3:15-CV-0134-D, 3:15-CV-0137-D,
3:15-CV-0142-D, 3:15-CV-0198-D,
3:15-CV-0228-D, 3:15-CV-0260-D,
3:15-CV-0301-D, 3:15-CV-0563-D,
3:15-CV-0705-D, 3:15-CV-0931-D,

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Civil Action No. 3:14-MD-2587-D
(MDL No. 2587)

3:15-CV-1040-D, 3:15-CV-1041-D,
3:15-CV-1052-D, 3:15-CV-1053-D,
3:15-CV-1069-D, 3:15-CV-1070-D,
3:15-CV-1071-D, 3:15-CV-1102-D,
3:15-CV-1177-D, and 3:15-CV-1179-D.

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MEMORANDUM OPINION
AND ORDER
In these MDL proceedings, defendants’ joint motion to dismiss under Fed. R. Civ. P.
12(b)(6) principally presents the question whether local exchange carriers (“LECs”) can
charge interexchange carriers (“IXCs”) access fees for access services that the LECs provide
the IXCs to enable them to exchange interstate wireless intraMTA calls—that is, interstate
wireless calls that originate and terminate within the same Major Trading Area (“MTA”).
Concluding that they can under their filed federal tariffs, the court grants defendants’ joint
motion and dismisses plaintiffs’ federal-law claims with prejudice. Concluding that plaintiffs
have failed to plead plausible claims that the LEC defendants cannot charge access fees
under filed state tariffs, the court grants defendants’ joint motion, but it also grants plaintiffs
leave to replead their state-law claims. Defendant AT&T Corp. (“AT&T”) moves to dismiss
or stay two of these cases, contending that the court should refer the central issues in dispute
to the Federal Communications Commission (“FCC”) under the doctrine of primary
jurisdiction. Because there are no substantial issues for the FCC to decide, the court declines
to make a referral to the FCC, and it denies AT&T’s motion.

-2-

I
Plaintiffs Sprint Communications Company L.P. (“Sprint”) and MCI Communications
Services, Inc. / Verizon Select Services Inc. (“Verizon”) sue hundreds of LECs doing
business throughout the United States, alleging that the LECs have charged and are
continuing to charge IXCs access fees1 on intraMTA wireless calls, in violation of FCC and
court decisions that prohibit this practice for wireless intraMTA calls between Commercial
Mobile Radio Service (“CMRS”) carriers and LECs that originate and terminate within the
same MTA. Verizon Compl. ¶ 1.2 Sprint and Verizon bring claims under 47 U.S.C. §§ 206
and 207 for alleged violations of 47 U.S.C. §§ 201(b) and 203 for charging access fees on
interstate intraMTA wireless calls; assert state-law breach of contract claims based on alleged
breaches of tariffs governing interstate wireless intraMTA calls; and plead state-law breach
of contract claims based on alleged breaches of tariffs governing intrastate wireless

1

Plaintiffs’ complaints refer to these fees as “switched access charges.” Because the
briefing generally omits the term “switched,” the court for convenience will likewise use the
terms “access fees” or “access charges.”
2

Plaintiffs rely on the corrected first amended complaints in Sprint Communications
Co. v. Central Telephone Co. of Texas, No. 3:14-CV-1724-D (“Sprint Complaint”), and MCI
Communications Services, Inc. v. Cameron Telephone Co., No. 3:14-CV-3210-D (“Verizon
Complaint”), as representative of the complaints filed in all the pending cases. The court will
do so as well.
In deciding defendants’ motions, the court construes plaintiffs’ complaints in the light
most favorable to them, accepts as true all well-pleaded factual allegations, and draws all
reasonable inferences in their favor. See, e.g., Lovick v. Ritemoney Ltd., 378 F.3d 433, 437
(5th Cir. 2004). “The court’s review [of a Rule 12(b)(6) motion] is limited to the complaint,
any documents attached to the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V
(U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010) (citation omitted).
-3-

intraMTA calls. They essentially seek declaratory relief that they do not owe access fees,
damages for fees they have paid in the past, and awards of other relief, such as attorney’s
fees.3
The Judicial Panel on Multidistrict Litigation transferred these cases to this court
under 28 U.S.C. § 1407 for coordinated or consolidated pretrial proceedings. See In re:
IntraMTA Switched Access Charges Litig., 67 F.Supp.3d 1378 (J.P.M.L. 2014). The month
before the MDL proceedings were assigned to this court, several LECs filed with the FCC
a Petition for Declaratory Ruling to Clarify the Applicability of the IntraMTA Rule to LECIXC Traffic (“FCC Petition”). The FCC Petition requests that the FCC confirm that plaintiffs
owe access charges, rather than reciprocal compensation, when they use access services to
originate or terminate calls, even if the calls are within the same MTA. The FCC received
public comment through March 11, 2015, and the FCC Petition remains pending.
In general terms,4 LECs typically provide wireline (i.e., landline) local telephone
company service to their customers. They own or lease the equipment that is necessary to
provide wireline telephone service within a specific geographical area, known as a “local
exchange.” Wireline calls originating and terminating within the same local exchange are

3

Sprint and Verizon are also suing each other’s affiliated entities, because each is an
IXC that has LEC affiliates. In an April 20, 2015 order, the court clarified, consistent with
a ruling it made at the initial scheduling conference, that Sprint and Verizon are not required
at this time to file responsive pleadings to each other’s complaints.
4

A more detailed explanation of the background facts is unnecessary to understand the
holdings and reasoning of this memorandum opinion and order.
-4-

considered “local” calls.
IXCs generally provide long distance services, delivering wireline calls between
different local exchanges (i.e., interexchange calls). IXCs generally own only long distance
facilities; they rely on LECs to originate and terminate long distance calls between end-users.
IXCs pay LECs a fee—known as an “access charge”—to obtain access to the LEC’s
network. If a LEC customer places a long distance call, the LEC routes the call to the IXC
selected by the customer, and the LEC charges the IXC an originating access charge. If the
LEC receives a long distance call for termination that has been originated by another LEC’s
customer and delivered by an IXC—generally over “Feature Group D” facilities—the LEC
charges the IXC a terminating access charge. LECs establish their access fees in filed tariffs.
Rates for interstate long distance toll calls are filed with the FCC. Rates for intrastate long
distance toll calls are filed with state public utility or public service commissions.
In 1996, Congress enacted the Telecommunications Act of 1996 (the
“Telecommunications Act”), which brought competition to local telephone markets by
requiring telephone companies to open their networks to competitors. Instead of access fees,
LECs receive “reciprocal compensation” from other carriers for transporting and terminating
traffic that originates on the network facilities of the other carriers. The rates for reciprocal
compensation are set by the terms of interconnection agreements, and reciprocal
compensation rates are typically much lower than access charges.5 LECs often observe a

5

The briefing and oral argument address why access fees are higher due to subsidies
included in such fees.
-5-

“bill-and-keep” arrangement under which a LEC keeps its own local customers’ fees, and
does not charge the other LEC, when the volume of calls between them is roughly balanced.
For wireline calls, a local call is one that originates and terminates within a local
calling area established by LECs in state tariffs or by state regulatory commissions. For
wireless calls, a local call is one that originates and terminates within a single MTA, as
defined by the FCC, that is, an intraMTA call. An MTA is typically much larger
geographically than is a local calling area for wireline calls, and an MTA may encompass
several states. Telecommunications traffic exchanged between a LEC and a CMRS provider
that, at the beginning of the call, originates and terminates within the same MTA, is subject
to reciprocal compensation. An intraMTA call can involve a wireline end-user as the
originator or terminator of a call involving a wireless end-user. If an MTA encompasses
more than one state, some intraMTA traffic within that MTA can be intrastate and other
traffic interstate.
In these MDL proceedings, Sprint and Verizon—both IXCs—allege that the
defendant LECs are not permitted to impose access fees on them for wireless intraMTA
traffic. Almost all defendants jointly move to dismiss plaintiffs’ actions under Rule 12(b)(6)
for failure to state a claim.6 Although not all defendants participating in the joint motion

6

Defendants did not file their Rule 12(b)(6) motion on behalf of Verizon’s LEC
affiliates, Sprint, AT&T, or any defendants for which no counsel has yet filed a notice of
appearance.
-6-

have joined all aspects of the motion,7 most defendants contend that the filed tariff doctrine
bars plaintiffs’ claims; the FCC did not exempt plaintiffs from defendants’ tariffs; if
defendants’ tariffs do not apply, then state contract law—the “voluntary payment
doctrine”—bars plaintiffs’ claims; plaintiffs have not alleged a violation of state law; the
federal two-year statute of limitations applies to any state-law claims; and, in the alternative,
the court should refer the issues to the FCC under the primary jurisdiction doctrine. AT&T
has not joined defendants’ joint motion; it moves separately under Rule 12(b)(6) to dismiss
or stay the two cases in which it is a defendant, contending that the court should refer the
issues to the FCC under the doctrine of primary jurisdiction. Three other defendants jointly
move in a separate motion to dismiss under Rule 12(b)(1) based on tribal immunity.
Plaintiffs oppose the motions. The court has heard oral argument.8
II
Under Rule 12(b)(6), the court evaluates the pleadings by “accept[ing] ‘all
well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby
Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive

7

Certain defendants—the AT&T LECs, various Peerless Network entities, and the
CenturyLink affiliates—have joined defendants’ joint motion but have filed notices that they
do not join specific arguments asserted in the joint motion. None of these notices, however,
relates to a ground on which the court is relying to grant defendants’ joint motion.
8

The Rule 12(b)(1) motion to dismiss that is based on tribal immunity was not orally
argued, and it is decided today in a separate memorandum opinion and order.
-7-

defendants’ motions, plaintiffs’ complaints must allege enough facts “to state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a
‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id.; see also Twombly, 550 U.S. at 555 (“Factual allegations must be
enough to raise a right to relief above the speculative level[.]”). “[W]here the well-pleaded
facts do not permit the court to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’” Iqbal,
556 U.S. at 679 (brackets omitted) (quoting Rule 8(a)(2)). Furthermore, under Rule 8(a)(2),
a pleading must contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Although “the pleading standard Rule 8 announces does not require
‘detailed factual allegations,’” it demands more than “‘labels and conclusions.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 555). And “‘a formulaic recitation of the
elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
III
The court turns first to defendants’ contention that plaintiffs’ federal-law claims are
barred by the filed rate doctrine.

-8-

A
Defendants posit that plaintiffs’ claims fail because, based on the facts pleaded, the
filed rate doctrine requires plaintiffs to pay the access charges specified in defendants’ tariffs
filed with the FCC, and it bars any claim or theory that has the effect of causing plaintiffs to
pay less than the full tariffed amounts.
Plaintiffs respond that, “[f]irst and foremost, the filed tariff defense rises and falls on
whether the intraMTA rule bars access charges on intraMTA traffic.” Ps. Resp. 36. They
maintain that a filed tariff cannot be enforced when it is contrary to law, and that, for the
reasons they have otherwise presented in their briefing, LECs cannot lawfully charge access
fees on intraMTA traffic. Second, plaintiffs posit that defendants’ reliance on the filed rate
doctrine is misplaced because the traffic at issue does not involve access services as
described in defendants’ tariffs, since the tariffed access charges are inapplicable to
intraMTA traffic. Third, plaintiffs assert that defendants have not met their burden of
demonstrating that their tariffs apply to the charges at issue in the complaints because they
have not, for example, presented their tariffs to the court.
B
“[T]he ‘filed rate doctrine[’] . . . forbids a regulated entity to charge rates for its
services other than those properly filed with the appropriate federal regulatory authority.”
Ark. La. Gas Co. v. Hall, 453 U.S. 571, 577 (1981) (citations omitted). The doctrine exists
because “[i]t would undermine the congressional scheme of uniform rate regulation to allow
a[] court to award as damages a rate never filed with the [regulatory agency] and thus never
-9-

found to be reasonable within the meaning of the Act.” Id. at 579. “[T]he rate of the carrier
duly filed is the only lawful charge [and d]eviation from it is not permitted upon any pretext.”
Louisville & Nashville R.R. Co. v. Maxwell, 237 U.S. 94, 97 (1915).
Under the filed rate doctrine, “any ‘filed rate’—that is, one approved by the governing
regulatory agency—is per se reasonable and unassailable in judicial proceedings brought by
ratepayers.” Tex. Commercial Energy v. TXU Energy, Inc., 413 F.3d 503, 508 (5th Cir.
2005) (some internal quotation marks omitted). Accordingly, “once a carrier’s tariff is
approved by the FCC, the terms of the federal tariff are considered to be ‘the law’ and to
therefore ‘conclusively and exclusively enumerate the rights and liabilities’ as between the
carrier and the customer.” Evanns v. AT&T Corp., 229 F.3d 837, 840 (9th Cir. 2000)
(quoting Marcus v. A T & T Corp., 138 F.3d 46, 56 (2d Cir. 1998)). “Not only is a carrier
forbidden from charging rates other than as set out in its filed tariff, but customers . . . may
not bring an action against a carrier that would invalidate, alter or add to the terms of the filed
tariff.” Id. (citations omitted).
“Under the filed-rate doctrine, federal law preempts claims concerning the price at
which service is to be offered, and . . . claims concerning the services that are offered.”
Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d 694, 711 (5th Cir. 1999) (citing
Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 220-26 (1998)).

- 10 -

IV
Plaintiffs first challenge defendants’ reliance on the filed rate doctrine on the ground
that a filed tariff cannot be enforced when it is contrary to law, and that the LECs cannot
lawfully charge access fees on intraMTA traffic.
A
Following divestiture in the telecommunications industry in the 1980s, and at the time
the Telecommunications Act was enacted in 1996, LECs were permitted to charge IXCs
access fees for providing access service. In 1996, FCC regulations defined “[a]ccess service”
as “services and facilities provided for the origination or termination of any interstate or
foreign telecommunication.” 47 C.F.R. § 69.2(b) (1996). Section 69.5(b) provided that
“[c]arrier’s carrier charges shall be computed and assessed upon all [IXCs] that use local
exchange switching facilities for the provision of interstate or foreign telecommunications
services.” 47 C.F.R. § 69.5(b) (1996).
The Telecommunications Act leaves in place the access charge regime between LECs
and IXCs. Concerning LECs’s obligations to other carriers and providers, including IXCs,
the Act explicitly provides:
On and after February 8, 1996, each [LEC], to the extent that it
provides wireline services, shall provide exchange access,
information access, and exchange services for such access to
[IXCs] and information service providers in accordance with the
same equal access and nondiscriminatory interconnection
restrictions and obligations (including receipt of compensation)
that apply to such carrier on the date immediately preceding
February 8, 1996, under any court order, consent decree, or
regulation, order, or policy of the [FCC], until such restrictions
- 11 -

and obligations are explicitly superseded by regulations
prescribed by the [FCC] after February 8, 1996. During the
period beginning on February 8, 1996, and until such
restrictions and obligations are so superseded, such restrictions
and obligations shall be enforceable in the same manner as
regulations of the [FCC].
47 U.S.C. § 251(g) (emphasis added). The Telecommunications Act thus preserves the
restrictions and obligations concerning LECs—“including receipt of compensation”—until
later explicitly superseded by FCC regulations. Id.; see, e.g., Atlas Tel. Co. v. Okla. Corp.
Comm’n, 400 F.3d 1256, 1263 (10th Cir. 2005) (citing D.C. Circuit’s explanation that “§
251(g) is a transitional provision designed to keep in place certain restrictions and
obligations, including the existing access charge regime, until such provisions are
superceded by FCC regulations.” (emphasis added) (citing WorldCom, Inc. v. FCC, 288 F.3d
429, 432-33 (D.C. Cir. 2002))).
Plaintiffs’ challenge to defendants’ invocation of the filed rate doctrine thus turns on
whether the FCC has by regulation explicitly superseded the pertinent compensation scheme
that was the existing practice at the time the Telecommunications Act was enacted. Stated
another way, the question is whether the right of LECs to impose access fees on IXCs for
access services that enable the IXCs to exchange interstate wireless intraMTA calls is still
governed by the compensation practice in effect when the Telecommunications Act took
effect in 1996, or is now prohibited by an FCC regulation promulgated thereafter.

- 12 -

B
Plaintiffs contend that the FCC’s order in In re Implementation of the Local
Competition Provisions in the Telecommunications Act of 1996, Interconnection Between
Local Exchange Carriers and Commercial Mobile Radio Service Providers, First Report and
Order, 11 F.C.C.R. 15499 (Aug. 8, 1996) (“Local Competition Order”), prohibits LECs from
imposing access charges on intraMTA traffic. The court disagrees.
Nothing in the Local Competition Order explicitly supersedes the existing practice
regarding access charges that LECs assess IXCs. Although the Local Competition Order
requires LECs “to enter into reciprocal compensation arrangements with CMRS providers
. . . for the transport and termination of traffic on each other’s networks,” Local Competition
Order, 11 F.C.C.R. at 15517, ¶ 34 (emphasis added), nothing obligates LECs to enter into the
same arrangements with IXCs.

Significantly, ¶ 30 of the Local Competition Order

acknowledges that “[n]othing in this Report and Order alters the collection of access charges
paid by an [IXC] under Part 69 of the Commission’s rules, when the incumbent LEC
provides exchange access service to an [IXC], either directly or through service resale.” Id.
at 15515-16, ¶ 30 (emphasis added). 47 C.F.R. §§ 69.2(b) and 69.5(b) are included in Part
69. As the district court stated in a case that is now part of these MDL proceedings:
the 1996 Local Competition Order distinguishes between
service arrangements between LECs and CMRS providers and
service arrangements between LECs and IXCs, and did not
apply its conclusion that service arrangements involving
intraMTA traffic between CMRS providers and LECs are
subject to reciprocal compensation, not access charges, to
service arrangements involving such traffic between LECs and
- 13 -

IXCs.
Sprint Commc’ns Co. v. Butler-Bremer Mut. Tel. Co., 2014 WL 4980539, at *4 (N.D. Iowa
Oct. 6, 2014) (citation omitted).
Another part of the Local Competition Order—which addresses “CMRS-Related
Issues”—also supports this reading. After two paragraphs that explain that a LEC’s
obligation under § 251(b)(5) to establish reciprocal compensation arrangements applies to
all local traffic transmitted with CMRS providers, and that, under § 251(b)(5), a LEC cannot
charge a CMRS provider or other carrier for terminating LEC-originated traffic, the order
states in ¶ 1043, in pertinent part:
We reiterate that traffic between an incumbent LEC and a
CMRS network that originates and terminates within the same
MTA (defined based on the parties’ locations at the beginning
of the call) is subject to transport and termination rates under
section 251(b)(5), rather than interstate or intrastate access
charges. Under our existing practice, most traffic between LECs
and CMRS providers is not subject to interstate access charges
unless it is carried by an IXC, with the exception of certain
interstate interexchange service provided by CMRS carriers,
such as some “roaming” traffic that transits incumbent LECs’
switching facilities, which is subject to interstate access charges.
Based on our authority under section 251(g) to preserve the
current interstate access charge regime, we conclude that the
new transport and termination rules should be applied to LECs
and CMRS providers so that CMRS providers continue not to
pay interstate access charges for traffic that currently is not
subject to such charges, and are assessed such charges for traffic
that is currently subject to interstate access charges.
Local Competition Order, 11 F.C.C.R. at 16016-17, ¶ 1043 (emphasis added) (footnotes
omitted). Stated differently, under the “existing practice”—which the Local Competition

- 14 -

Order does not change—access charges are owed when an IXC carries interstate wireless
traffic.
The FCC reaffirmed this position in In re TSR Wireless, LLC (TSR Wireless, LLC v.

U S West Commc’ns, Inc.), 15 F.C.C.R. 11166 (June 21, 2000) (“TSR Wireless”):
Section 51.703(b) concerns how carriers must compensate each
other for the transport and termination of calls. It does not
address the charges that carriers may impose upon their end
users. Section 51.703(b), when read in conjunction with Section
51.701(b)(2), requires LECs to deliver, without charge, traffic
to CMRS providers anywhere within the MTA in which the call
originated, with the exception of RBOCs, which are generally
prohibited from delivering traffic across LATA boundaries.
MTAs typically are large areas that may encompass multiple
LATAs, and often cross state boundaries. Pursuant to Section
51.703(b), a LEC may not charge CMRS providers for facilities
used to deliver LEC-originated traffic that originates and
terminates within the same MTA, as this constitutes local traffic
under our rules. Such traffic falls under our reciprocal
compensation rules if carried by the incumbent LEC, and under
our access charge rules if carried by an interexchange carrier.
TSR Wireless, 15 F.C.C.R. at 11184, ¶ 31 (emphasis added) (footnotes omitted). The
italicized sentence is footnoted with a citation to the pages of the Local Competition Order
that contain footnote 1043. Id. at ¶ 31 n.105.
Plaintiffs also rely on the Local Competition Order to argue that the FCC prohibits
LECs from imposing access charges on all wireless intraMTA traffic, which would include
wireless intraMTA traffic carried by an IXC as an intermediate carrier. They cite ¶ 1036 of
the Local Competition Order, contending that traffic to or from a CMRS network that
originates and terminates within the same MTA is subject to transport and termination rates

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under § 251(b)(5) rather than interstate and intrastate access charges. But ¶ 1036 simply sets
out the intraMTA rule; it does not mention IXCs, much less explicitly supersede the existing
access charge regime between LECs and IXCs. Nor is plaintiffs’ reading of ¶ 1036
reasonable given the FCC’s statement that it is defining “the local service area for calls to or
from a CMRS network for the purposes of applying reciprocal compensation obligations
under section 251(b)(5),” Local Competition Order, 11 F.C.C.R. at 16014, ¶ 1036 (emphasis
added), and its clarification in ¶ 1034 that “the reciprocal compensation provisions of section
251(b)(5) for transport and termination of traffic do not apply to the transport or termination
of interstate or intrastate interexchange traffic,” id. at 16013, ¶ 1034 (emphasis added).
Moreover, plaintiffs’ reading of ¶ 1036 cannot be reconciled with the FCC’s statement in
¶ 30 that the Local Competition Order does not alter the collection of access charges paid by
an IXC under Part 69 of the FCC’s rules, which includes 47 C.F.R. § 69.5(b).
C
Plaintiffs also rely on 47 C.F.R. § 51.703(b), which provides: “A LEC may not assess
charges on any other telecommunications carrier for Non-Access Telecommunications
Traffic that originates on the LEC’s network.”9 Plaintiffs contend that § 51.703(b) prohibits
LECs entirely from assessing charges on “any other telecommunications carrier” for
intraMTA wireless traffic that originates on the LEC’s network. Ps. Resp. 9 (quoting

9

The 1996 version of the rule is substantively identical to the current version, but uses
the term “local telecommunications traffic” instead of “Non-Access Telecommunications
Traffic.”
- 16 -

§ 51.703(b)). They cite ¶ 1042 of the Local Competition Order10 for the proposition that this
prohibition applies to a CMRS provider and to an intermediate carrier, like an IXC. The
court disagrees.
Section 51.703(b) is part of Subpart H of Part 51 (Interconnection) of the FCC
Regulations. Subpart H is entitled “Reciprocal Compensation for Transport and Termination
of Telecommunications Traffic.” Reciprocal compensation is distinct from access fees.
Moreover, § 51.701(a) states, in pertinent part, that the provisions of Subpart H apply
to “Non-Access Reciprocal Compensation for transport and termination of Non-Access
Telecommunications Traffic between LECs and other telecommunications carriers.” Section
51.701(b) provides that “Non-Access Telecommunications Traffic” means:

10

Paragraph 1042 provides:
We conclude that, pursuant to section 251(b)(5), a LEC may not
charge a CMRS provider or other carrier for terminating
LEC-originated traffic. Section 251(b)(5) specifies that LECs
and interconnecting carriers shall compensate one another for
termination of traffic on a reciprocal basis. This section does
not address charges payable to a carrier that originates traffic.
We therefore conclude that section 251(b)(5) prohibits charges
such as those some incumbent LECs currently impose on CMRS
providers for LEC-originated traffic. As of the effective date of
this order, a LEC must cease charging a CMRS provider or
other carrier for terminating LEC-originated traffic and must
provide that traffic to the CMRS provider or other carrier
without charge.

Local Competition Order, 11 F.C.C.R. at 16016, ¶ 1042.
- 17 -

(1) Telecommunications traffic exchanged between a LEC and
a telecommunications carrier other than a CMRS provider,
except for telecommunications traffic that is interstate or
intrastate exchange access, information access, or exchange
services for such access; or
(2) Telecommunications traffic exchanged between a LEC and
a CMRS provider that, at the beginning of the call, originates
and terminates within the same [MTA], as defined in
§ 24.202(a) of this chapter.
47 C.F.R. § 51.701(b) (emphasis added). Plaintiffs are therefore relying on provisions that
govern reciprocal compensation and non-access traffic, neither of which applies to an IXC.
As the Ninth Circuit explained in Western Radio Services Co. v. Qwest Corp., 678
F.3d 970 (9th Cir. 2012), traffic carried by an IXC is access-based rather than reciprocalcompensation-based.
[I]n the regulation addressing the scope of the transport and
termination pricing rules, the FCC distinguishes between traffic
exchanged between a LEC and a CMRS provider and traffic
exchanged between a LEC and a non-CMRS provider. See 47
C.F.R. § 51.701(b). In the former situation, reciprocal
compensation applies to all traffic exchanged “that, at the
beginning of the call, originates and terminates within the same
Major Trading Area . . . .” Id. § 51.701(b)(2). In the latter
situation, reciprocal compensation applies to all traffic
exchanged except “telecommunications traffic that is interstate
or intrastate exchange access, information access, or exchange
services for such access . . . .” Id. § 51.701(b)(1). Traffic
carried by an IXC, which is access-based rather than
reciprocal-compensation-based, falls within this regulatory
exception to the reciprocal compensation rules.
Id. at 988 (second emphasis added) (citation omitted). Plaintiffs’ reliance on § 51.703(b)
is therefore misplaced.

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D
Plaintiffs also rely on certain federal cases decided between 2003 and 2012 to argue
that access charges do not apply to wireless intraMTA traffic. But this reliance is misplaced,
because none of these decisions addresses whether a LEC is permitted to charge an IXC
access fees for providing access services that enable the IXC to exchange interstate wireless
intraMTA traffic. See Sprint Commc’ns Co., 2014 WL 4980539, at *4 (“the federal appellate
decisions on which Sprint relies [including those discussed below] also do not involve
interpretation or policy analysis of FCC regulations regarding payment arrangements
between LECs and IXCs.”).
For example, in Atlas the Tenth Circuit addressed a dispute between rural LECs and
CMRS providers regarding whether the LECs were obligated to enter into reciprocal
compensation agreements with the CMRS providers for intraMTA calls delivered via an
intermediate carrier. Atlas, 400 F.3d at 1259, 1261. The court held that the plaintiff LECs
“ha[d] a mandatory duty to establish reciprocal compensation agreements with the CMRS
providers . . . for calls originating and terminating within the same MTA,” and that nothing
in the FCC regulations provided “support for the [LECs’s] contention that reciprocal
compensation requirements do not apply when traffic is transported on an IXC network.”
Id. at 1264 (emphasis added). The Tenth Circuit did not address or decide the question
presented in these MDL proceedings: whether LECs are permitted to charge IXCs access fees
for exchanging interstate wireless intraMTA traffic.
Similarly, in Alma Communications Co. v. Missouri Public Service Commission, 490
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F.3d 619 (8th Cir. 2007), the Eighth Circuit addressed whether a “[LEC] and the cell-phone
provider must share ‘reciprocal compensation’” for landline telephone calls to cellular
phones within the same MTA, even when such calls were routed through a long distance
provider. Id. at 620 (emphasis added). The court did not address whether the LEC could
charge the IXC access charges.
And in Western Radio Services the Ninth Circuit concluded that the application of
access charges “to calls exchanged between a CMRS provider and a LEC,” when those calls
are carried by an IXC, violated the Telecommunications Act, but the court explicitly noted
that “[t]raffic carried by an IXC, which is access-based rather than reciprocal-compensationbased, falls within this regulatory exception to the reciprocal compensation rules.” W. Radio
Servs., 678 F.3d at 973, 988 (emphasis added).
Plaintiffs also rely on Iowa Network Services, Inc. v. Qwest Corp., 466 F.3d 1091 (8th
Cir. 2006) (“INS II”), in which the Eighth Circuit agreed that the FCC’s reciprocal
compensation rules do not directly address intermediary compensation, and upheld, as not
inconsistent with federal law, the district court’s conclusion that Qwest, an intermediary
carrier, “need not pay access charges because access charges are not available for ‘local’
traffic.” Id. at 1096. Key to the district court’s conclusion, however, was the fact that Qwest
was acting as an “intermediate” or “transiting” carrier, not as an IXC. The district court
explained that “[t]he regulatory classification of Qwest is, however, pertinent as there exists
within the reciprocal compensation rules an exception for IXCs.” Iowa Network Servs., Inc.
v. Qwest Corp., 385 F.Supp.2d 850, 871 (S.D. Iowa 2005) (emphasis added), aff’d, 466 F.3d
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1091 (8th Cir. 2006).
Finally, plaintiffs’ reliance on Rural Iowa Independent Telephone Ass’n v. Iowa
Utilities Board, 476 F.3d 572 (8th Cir. 2007), is similarly misplaced because it also dealt
with Qwest, who was not acting as an IXC. Instead, Qwest was “act[ing] as a conduit to
facilitate what is essentially a transaction between a wireless carrier and a local exchange
carrier.” Id. at 577. Moreover, the Eighth Circuit noted that the LEC’s practice of requiring
that its customers dial a “0” or “1” at the beginning of an intraMTA wireless call resulted in
the calls’ “be[ing] carried by an IXC and subject to access charges.” Id. at 578 (emphasis
added).
In sum, none of the court decisions on which plaintiffs rely supports their position that
LECs are precluded by FCC rules from charging IXCs access fees for access services that
they provide the IXCs to enable them to exchange interstate wireless intraMTA calls.
E
Plaintiffs contend that in In re Connect America Fund, A National Broadband Plan
for Our Future, Report and Order and Further Notice of Proposed Rule-Making, 26 F.C.C.R.
17663 (Nov. 18, 2011) (“Connect America Order”), the FCC “define[d] the compensation
regime for intraMTA wireless traffic with reference to the origin and termination of the
traffic, not by the identity of the carriers involved in transporting that traffic.” Ps. Resp. 17.
Plaintiffs rely on ¶ 41, which contains the following sentence: “we affirm that all traffic
routed to or from a CMRS provider that, at the beginning of a call, originates and terminates
within the same MTA, is subject to reciprocal compensation, without exception.” Connect
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America Order, 26 F.C.C.R. at 17678, ¶ 41 (emphasis added). Plaintiffs also cite ¶ 1007,
which states:
In a further pending dispute, some LECs have argued that if
completing a call to a CMRS provider requires a LEC to route
the call to an intermediary carrier outside the LEC’s local
calling area, the call is subject to access charges, not reciprocal
compensation, even if the call originates and terminates within
the same MTA. One commenter in this proceeding asks us to
affirm that such traffic is subject to reciprocal compensation.
We therefore clarify that the intraMTA rule means that all traffic
exchanged between a LEC and a CMRS provider that originates
and terminates within the same MTA, as determined at the time
the call is initiated, is subject to reciprocal compensation
regardless of whether or not the call is, prior to termination,
routed to a point located outside that MTA or outside the local
calling area of the LEC. Similarly, intraMTA traffic is subject
to reciprocal compensation regardless of whether the two end
carriers are directly connected or exchange traffic indirectly via
a transit carrier.
Id. at 18042-43, ¶ 1007. According to plaintiffs, the FCC’s use of the word “traffic,” as
opposed to framing the issue as whether LECs or CMRS providers may impose access
charges on one another for intraMTA calls, evidences a “square[] reject[ion]” of the LECs’s
position regarding access charges on IXCs. Ps. Resp. 17-18. They argue that, by citing
Alma, 490 F.3d 619, INS II, 466 F.3d 1091, and Atlas, 400 F.3d 1256, in footnote 2133 of
the Connect America Order, the “FCC left no doubt that LECs cannot impose access charges
on intraMTA traffic, regardless of which carriers transport it.” Ps. Resp. 18.
Plaintiffs’ reliance on the single sentence they quote from ¶ 41 lacks force. The
Connect America Order does not expressly apply to compensation between a LEC and an
IXC for intraMTA calls. See Sprint Commc’ns Co., 2014 WL 4980539, at *4 (“Likewise,
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the [Connect America Order] only ‘clarified’ payment arrangements between LECs and
CMRS providers, but did not address payment arrangements between LECs and IXCs.”).
And although ¶ 41 does contain the sentence on which plaintiffs rely—“we affirm that all
traffic routed to or from a CMRS provider that, at the beginning of a call, originates and
terminates within the same MTA, is subject to reciprocal compensation, without exception,”
id. (emphasis added)—the sentence must be read in context. Paragraph 41, as a whole, is
addressed to “CMRS-Local Exchange Carrier (LEC) Compensation.” Connect America
Order, 26 F.C.C.R. at 17678, ¶ 41 (italics in original). And the final sentence of ¶ 41—the
sentence on which plaintiffs rely—is preceded by five other sentences, including the
following three that place the final sentence in context:
We clarify certain aspects of CMRS-LEC compensation to
reduce disputes and address existing ambiguity. We adopt billand-keep as the default methodology for all non-access CMRSLEC traffic. To provide rate-of-return LECs time to adjust to
bill-and-keep, we adopt an interim transport rule for rate-ofreturn carriers to specify LEC transport obligations under the
default bill-and-keep framework for non-access traffic
exchanged between these carriers.
Connect America Order, 26 F.C.C.R. at 17678, ¶ 41 (emphasis added). It is therefore
apparent that when the FCC affirmed, without exception, that all traffic routed to or from a
CMRS provider that, at the beginning of a call, originates and terminates within the same
MTA is subject to reciprocal compensation, it was referring to compensation between a
CMRS and a LEC. Paragraph 41 does not mention other carriers that might be involved in
exchanging such traffic. It does not address IXCs or any aspect of the compensation

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permitted between LECs and IXCs. Nor does ¶ 1007, on which plaintiffs also rely, address
compensation between LECs and IXCs. See W. Radio Servs., 678 F.3d at 989 (“Further, we
note that the FCC has issued a new report and order, effective December 29, 2011, that cites
this case law approvingly and clarifies that in the LEC-CMRS context, this is indeed how the
reciprocal compensation rules are to operate.” (emphasis added)).
F
Under 47 U.S.C. § 251(g), the proper methodology for determining whether LECs can
charge IXCs for the access services at issue is to identify the baseline practice on the date
immediately preceding February 8, 1996 and then determine whether the FCC by regulation
has explicitly superseded that practice. Defendants have established that the FCC has not yet
explicitly superseded the baseline compensation practices that applied on the date
immediately preceding February 8, 1996 to the access services that LECs provide IXCs to
enable them to exchange interstate wireless intraMTA calls. And plaintiffs have failed to
show otherwise.
Plaintiffs have pointed to no FCC regulation that explicitly supersedes the authority
of LECs to impose such access fees. The Local Competition Order does not explicitly
address the LEC-IXC compensation regime. And the order explicitly states that it is not
altering the collection of access charges paid by an IXC under Part 69 of the FCC’s rules
when the incumbent LEC provides exchange access service to an IXC, directly or through
service resale. Nor does the Connect America Order explicitly address whether a LEC can
charge an IXC access fees for the access services at issue. And to the extent plaintiffs
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attempt to identify statements in court opinions to establish that LECs cannot charge IXCs
access fees for access services provided on intraMTA calls, none of the decisions on which
they rely is squarely on point.
Plaintiffs essentially attempt to undercut defendants’ reliance on the filed rate
doctrine, and establish that access fees are unlawful, by citing snippets they have pulled from
FCC orders and relying on the reasoning of court opinions that do not decide the question.
The fundamental fallacy in this approach should be apparent. If plaintiffs are relegated to
attempting to divine Delphic clues from FCC orders, compelled to cobble together a series
of excerpts from these orders, and forced to rely on court opinions that do not decide the
question, to maintain that they together establish that access fees are now unlawful, this
means the FCC has not yet by regulation explicitly superseded the relevant pre-February 8,
1996 baseline compensation practices. Indeed, plaintiffs’ approach is in a sense somewhat
akin to attempting to prove a case through circumstantial evidence. But while circumstantial
evidence can appropriately be relied on when proving facts at trial, it is no substitute for
proof of explicit regulation by the FCC.
Given the FCC’s efforts to promote wireless communications, and the literal
explosion of wireless communication devices, the reciprocal compensation regime for which
plaintiffs argue may be the way of the near future. But today, the question is whether the
FCC has by regulation explicitly superseded the pre-February 8, 1996 statutory baseline that
governs how access fees are charged for access services that LECs provide IXCs to enable
them to exchange interstate wireless intraMTA calls. And the answer is, it has not.
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V
Although plaintiffs principally oppose defendants’ reliance on the filed rate doctrine
on the ground that the tariffs are contrary to law, they also rely on two other arguments.
Plaintiffs posit that the filed tariff defense is inapposite because the traffic at issue
does not involve access services as described in defendants’ tariffs, since they are
transporting intraMTA traffic, which is not such a service. Because the court has concluded
above that the services at issue are subject to access fees, this basis for plaintiffs’ opposition
necessarily fails as well.
Plaintiffs also contend that defendants have not met their burden of demonstrating that
their tariffs apply to the charges at issue in the complaint because they have not, for example,
presented their tariffs to the court. This argument is refuted by plaintiffs’ complaints.
Plaintiffs allege that defendants bill originating and terminating switched access charges on
interstate wireless intraMTA calls; that defendants’ interstate access tariffs do not explicitly
exempt wireless intraMTA calls; and that defendants’ tariffs “apply by their terms to wireless
intraMTA calls,” Verizon Compl. ¶ 62.11 Because plaintiffs have specifically alleged that
defendants’ tariffs apply to the charges at issue, it is unnecessary for defendants to present
their tariffs to the court.

11

See supra note 2 for the source of this reference to Verizon’s complaint.
- 26 -

VI
The court now turns to defendants’ contentions that plaintiffs have failed to plead
state-law claims on which relief can be granted.
A
Plaintiffs allege claims for breach of contract based on defendants’ practice of
charging IXCs access charges, via tariffs filed with state public utilities commissions, for
access services relating to intrastate wireless intraMTA calls. Defendants move to dismiss

plaintiffs’ state-law claims, contending that plaintiffs admit that the access charges they paid
were described in defendants’ tariffs, and that they do not allege that the services they
ordered and received were not as described in any tariffs; that plaintiffs do not cite any state
law that prohibits defendants from collecting access charges for plaintiffs’ use of access
services to exchange intrastate intraMTA calls; that plaintiffs’ state-law claims for breach
of the state-filed tariffs fail to detail how, if at all, defendants breached any obligations
described in the tariffs; and that, to the extent plaintiffs contend that federal law prohibits
LECs from charging IXCs access fees for access services related to intraMTA calls, federal
law preempts all state laws on the issue.
Plaintiffs respond that they are not required at the motion to dismiss stage to detail
how defendants breached their tariffs or to attach copies of the hundreds of tariffs defendants
allegedly breached; that a number of defendants’ tariffs expressly prohibit access charges on
intraMTA traffic; that even where defendants’ tariffs do not expressly prohibit access

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charges on intraMTA traffic, the tariffs must be interpreted to incorporate the relevant state
and/or federal laws prohibiting this conduct, and that a number of states have state intraMTA
rules apart from federal law; that even in those states that have not expressly enacted a state
intraMTA rule, the tariffs still must incorporate the federal intraMTA rule for interstate and
intrastate intraMTA traffic; and that defendants are incorrect that all of the state-law breach
of contract claims are entirely preempted by federal law.
B
The court concludes that plaintiffs have failed to plead facially plausible state-law
claims on which relief can be granted. To the extent plaintiffs challenge defendants’ filed
state tariffs on the basis that federal law prohibits access charges, the court has already
concluded above that such charges are permissible under federal law.
To the extent plaintiffs intend to challenge defendants’ filed state tariffs on the basis
that they are prohibited under state law, plaintiffs have not plausibly pleaded any state laws
that prohibit these charges. Although they cite examples of such state laws in their response,
see Ps. Resp. 48,12 the complaints themselves are vague and conclusory, without any
reference to a specific state law that prohibits LECs from charging IXCs access charges on

12

Plaintiffs argue in their response that a number of states have state intraMTA rules
apart from the federal law, citing examples from Ohio, Montana, Texas, South Dakota, and
Missouri. Ps. Resp. 48. But the examples plaintiffs cite are state intraMTA rules that largely
copy the language used in the federal statutes and regulations that the court has discussed
above; none appears to prohibit LECs—to a greater extent than do the federal statutes and
regulations after which they are modeled—from charging access fees when IXCs exchange
intrastate intraMTA calls.
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intrastate intraMTA calls.
Finally, to the extent plaintiffs argue that the state tariffs themselves do not allow
access charges for intrastate intraMTA calls, they have not plausibly pleaded that
defendants’ charges for these types of calls violate the filed state tariffs. Even if plaintiffs
are not required to attach to their complaints copies of the hundreds of tariffs at issue, they
are required to plausibly plead that the filed state tariffs do not allow access charges on
intraMTA calls, which they have not done.13 In support of their state-law claims, plaintiffs
allege the following:
Defendants’ intrastate switched access tariffs on file with the
State Commission constitute contracts between Defendants and
any purchaser of services from those tariffs, which includes
Verizon.
Defendants have charged, and continue to charge, Verizon
switched access charges on wireless intraMTA calls that do not
qualify for such charges, in violation of their respective
intrastate access tariffs.
Defendants are in breach of their respective state tariff
provisions when they bill Verizon for wireless intraMTA calls,
as they do not qualify for such charges. To the extent the tariffs
purport to allow such charges, they are unenforceable.

13

In their response, plaintiffs provide examples of three filed state tariffs that they
argue prohibit LECs from charging IXCs access charges on intrastate intraMTA calls. But
in some of these examples, the tariffs do not go further than incorporating the relevant federal
intraMTA rules, which the court has already concluded do not prohibit LECs from charging
IXCs access charges on interstate wireless intraMTA calls. See, e.g., Ps. Resp. 47 (citing
Georgia tariff with the following parenthetical: “(incorporating the federal intraMTA
regulations into the tariff).”).
- 29 -

Verizon Compl. ¶¶ 71-73 (paragraph numbers omitted).14 These broad allegations could be
interpreted to plead that intrastate intraMTA calls “do not qualify for such charges” because
they are prohibited by federal law, by state law, or by filed state tariffs. But without
additional detail that enables the court to reasonably infer why plaintiffs allege that these
calls do not “qualify” for access charges, and without pleading any specific provision of state
law, federal law, or a specific filed state tariff that the charges allegedly violate, plaintiffs
have failed to plead a facially plausible claim.
Accordingly, the court grants defendants’ motion to dismiss plaintiffs’ state-law
claims.
VII
Because the court concludes that the filed rate doctrine bars plaintiffs’ federal-law
claims and that plaintiffs have failed to plead facially plausible state-law claims, it need not
reach defendants’ other arguments in support of dismissal: that if defendants’ tariffs do not
apply, then state contract law—the “voluntary payment doctrine”—bars plaintiffs’ claims;
and that the federal two-year statute of limitations applies to plaintiffs’ state-law claims.15

14

In the Sprint and Verizon complaints—which are representative, Ps. Resp. 3—
plaintiffs plead state-specific and LEC-specific breach of contract claims. All of the statelaw breach claims in the Sprint and Verizon complaints, however, follow the same format
and incorporate language nearly identical to the example set forth here.
15

Nor need the court consider defendants’ alternative contention that the court should
refer the issues to the FCC under the primary jurisdiction doctrine.
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VIII
AT&T has advised the court by notice that it does not join defendants’ joint motion
to dismiss. It moves separately under Rule 12(b)(6) to dismiss or stay the two cases in which
it is a named defendant16 based on the doctrine of primary jurisdiction, pending a referral to
the FCC.17
“The doctrine of primary jurisdiction attempts to maintain ‘proper relationships
between the courts and administrative agencies’ by suspending judicial process pending the
‘referral’ of certain issues to an administrative agency for its views.” Elam v. Kan. City S.
Ry. Co., 635 F.3d 796, 809 (5th Cir. 2011) (quoting United States v. W. Pac. R.R. Co., 352
U.S. 59, 63-64 (1956)). Primary jurisdiction “applies where a claim is originally cognizable

16

The cases are Nos. 3:14-CV-4571-D and 3:15-CV-0035-D.

17

In a footnote, AT&T distinguishes its capacity as an IXC from its capacity as a LEC
in the two cases in which its motion is filed. It explains that it is a separate corporate entity
from the other AT&T entities participating in these MDL proceedings, but is affiliated with
those AT&T entities.
In the above-captioned cases, AT&T Corp. is named as a
defendant in its capacity as a local exchange carrier (“LEC”)
that provides certain switched access services. AT&T Corp.
also provides long distance services as an interexchange carrier
(“IXC”). AT&T Corp. is a separate corporate entity from the
other AT&T entities participating in this MDL proceeding, but
is affiliated with those other AT&T entities. The other AT&T
entities are generally incumbent LECs, and do not offer long
distance services. AT&T Corp. and the other AT&T entities
have each engaged separate outside counsel.
AT&T Mot. 1 n.1.
- 31 -

in the courts, and comes into play whenever enforcement of the claim requires the resolution
of issues which, under a regulatory scheme, have been placed within the special competence
of an administrative body[.]” W. Pac. R.R., 352 U.S. at 63-64 (quoting Gen. Am. Tank Car
Corp. v. El Dorado Terminal Co., 308 U.S. 422, 433 (1940)). Although “[n]o fixed formula
exists,” agency referral is favored when “(a) it will promote even-handed treatment and
uniformity in a highly regulated area, or when sporadic action by federal courts would disrupt
an agency’s delicate regulatory scheme; or (b) the agency possesses expertise in a specialized
area with which the courts are relatively unfamiliar.” Elam, 635 F.3d at 811 (alteration in
original) (citing W. Pac. R.R., 352 U.S. at 64, and Mercury Motor Express, Inc. v. Brinke,
475 F.2d 1086, 1092 (5th Cir. 1973)). But “the doctrine of primary jurisdiction is not a
doctrine of futility.” Id. (quoting Local Union No. 189, Amalgamated Meat Cutters, &
Butcher Workmen of N. Am., AFL-CIO v. Jewel Tea Co., 381 U.S. 676, 686 (1965)). The
court need not refer a matter to “‘an expensive and merely delaying administrative
proceeding’ when there are no substantial issues for the agency to decide.” Id. (quoting
Jewel Tea, 381 U.S. at 686).
For the reasons explained above, the court holds that defendants are entitled to rely
on the filed rate doctrine because it is lawful under federal law to charge IXCs access fees
for access services that the LECs provide to enable the IXCs to exchange interstate wireless
intraMTA calls. The authority in place in 1996 for LECs to charge access fees for such
services has not been explicitly superseded by FCC regulation. Accordingly, there are no
substantial issues for the FCC to decide.
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IX
Although the court is granting defendants’ joint motion to dismiss, it will permit
plaintiffs to replead their state-law claims. “[D]istrict courts often afford plaintiffs at least
one opportunity to cure pleading deficiencies before dismissing a case, unless it is clear that
the defects are incurable or the plaintiffs advise the court that they are unwilling or unable
to amend in a manner that will avoid dismissal.” In re Am. Airlines, Inc., Privacy Litig., 370
F.Supp.2d 552, 567-68 (N.D. Tex. 2005) (Fitzwater, J.) (citation omitted) (MDL
proceedings). In this case, the defects in plaintiffs’ federal-law claims are incurable: these
claims are barred by the filed rate doctrine regardless how plaintiffs replead, because LECs
are permitted under federal law to charge IXCs access fees for the access services at issue.
But the court cannot say that the defects in plaintiffs’ state-law claims are similarly incurable.
For example, in support of their state-law claims, plaintiffs maintain in their response that
a number of defendants’ state tariffs expressly prohibit access charges for intraMTA calls.
Plaintiffs may therefore be able to plausibly allege a state-law claim, at least on the basis that
a specific state law or a filed state tariff actually prohibits the defendant LEC from charging
IXCs access charges for the intrastate intraMTA calls at issue.
Accordingly, within 28 days of the date this memorandum opinion and order is filed,
plaintiffs may file amended complaints that replead their state-law claims.18

18

For cause, or by agreement of the parties and with court approval, the court will
extend the deadline for plaintiffs to replead.
- 33 -

*

*

*

For the reasons explained, defendants’ joint motion to dismiss is granted. Plaintiffs’
federal-law claims are dismissed with prejudice. Plaintiffs’ state-law claims are dismissed,
but plaintiffs are granted leave to replead their state-law claims. AT&T’s motion to dismiss
on primary jurisdiction grounds, or, in the alternative, for stay pending referral is denied.
SO ORDERED.
November 17, 2015.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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