HomeMy WebLinkAbout20070907Reply in support of motion to stay.pdfRECE
Mary S. Hobson
Attorney & Counselor
999 Main, Suite 1108
Boise, ill 88702
208-885-8666
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September 7, 2007
VIA HAND DELIVERY
Jean D. Jewell, Secretary
Idaho Public Utilities Commission
472 West Washington
Boise, ID 83702-5983
RE:Docket No. QWE-O6-
Dear Ms. Jewell:
Enclosed for filing with this Commission is the original and seven (7) copies of QWEST
CORPORATION'S REPLY IN SUPPORT OF QWEST'S MOTION TO STAY OF
PROCEEDINGS in the above referenced matter.
If you have any questions, please contact me. Thank you for your cooperation in this
matter.
Very truly yours~I/o~
Enclosurescc: Service List
RECEI\)
Mary S. Hobson (ISB. No. 2142)
999 Main, Suite 1103
Boise, ID 83702
Tel: 208-385-8666
mary.hobson~qwest.com
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Peter S. Spivack
Hogan & Hartson LLP
555 13th Street NW
Washington, DC 20004
Tel: 202-637-6400
psspivack~hhlaw.com
Attorneys for Qwest Corporation
BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION
AT&T COMMUNICATIONS OF THE
MOUNTAIN STATES, INC.
Complainant Case No. QWE-O6-
QWEST CORPORATION,
QWEST CORPORATION'S REPLY IN
SUPPORT OF
MOTION FOR STAY OF PROCEEDINGS
Respondent.
INTRODUCTION
Qwest Corporation ("Qwest") files this Reply in Support of its Motion For Stay of
Proceedings before the Idaho Public Utilities Commission (the "Commission ), pending a
decision from the United States District Court for the District of Idaho ("federal Court") on
Qwest's motion to dismiss the complaint filed by AT&T Communications of the Mountain
States, Inc. ("AT&T"). AT&T's opposition provides no sound reason for denying Qwest's
motion for stay. Notwithstanding AT&T's creative descriptions of the federal action, the fact
remains that an identical action is pending before the federal court of Idaho-an action that
QWEST CORPORATION'S REPLY IN SUPPORT OF MOTION FOR STAY OF PROCEEDINGS - 1 -
AT&T, not Qwest, filed and that turns on a dispositive question of federal law that will govern
(and potentially eliminate) AT&T's complaint here.
AT&T skirts the reality that the federal court has concurrent jurisdiction over the case
and instead wastes the majority of its opposition trying to obscure that fact by distorting
Qwest's articulated reasons for the stay. Under well-established abstention principles, there is
no basis for the federal court to stay that action. Moreover, the federal court's ruling on the
statute of limitations question-a question of federal law-will control in the Commission
proceeding and it likely will be decided in response to Qwest's motion to dismiss rather than at
some later point.
Administrative economy is thus served by staying this proceeding until the federal
court rules so that no additional resources are wasted. Because a stay would further the orderly
and efficient cause of justice by simplifying the issues and potentially disposing of the cases in
their entirety, and because AT&T has not demonstrated any compelling reason why the
Commission should not grant Qwest's motion to stay, Qwest respectfully requests that the
Commission grant the motion and stay the current proceedings.
ARGUMENT
The irony in AT&T's opposition to this stay should not be lost on the Commission. In
making its argument, AT&T devotes much of its opposition pleading to a claim that Qwest
should not get a second bite at the apple--even though AT&T has admitted that it filed the
second action itselfin case its efforts fall short before the Commission. AT&T essentially
expects Qwest to concede its legal rights so that AT&T itself may-at its convenience--seek
that second bite. Clearly, this kind of argument warrants no consideration.
And this is clearly a case where the merits warrant a stay ofthis Commission
QWEST CORPORATION'S REPLY IN SUPPORT OF MOTION FOR STAY OF PROCEEDINGS - 2 -
proceeding. AT&T does not challenge the circumstances that would justify granting a stay
here. Rather, the bulk of AT&T's opposition rests on AT&T's mischaracterization of Qwest's
motion, claiming that the ability of the federal Court to hear Qwest's motion to dismiss
depends on the court's jurisdiction to review or hear appeals, and therefore does not provide a
basis for allowing Qwest's motion to dismiss. AT&T Opposition to Stay at 4.
AT&T's argument is both confused and groundless. The federal Court clearly has
concurrent jurisdiction over AT&T's action. As a federal Court with jurisdiction over
questions of federal law, there is no basis under well-established abstention principles for the
federal Court to stay that action. Quite the contrary, the general rule is that federal courts must
exercise their jurisdiction concurrently with courts or agencies of other jurisdictions
Neuchatel Swiss Gen. Ins. Co. v. Lufthansa Airlines 925 F.2d 1193 , 1195 (9th Cir. 1991). Only
exceptional circumstances will justify a stay of the federal proceedings. Moses H Cone
Memorial Hospital v. Mercury Canst. Corp.460 U.S. 1 23-26 (1983); American Int
Underwriters, (Philippines), Inc. v. Continentallns. Co.843 F.3d 1253 (9th Cir. 1987)).
AT &T has not met this high standard and the federal court is unlikely to stay the case
AT &T itself filed, especially given the dispositive issue of federal law before the court.
Indeed, precedent suggests that the federal Court would risk abusing its discretion if it stayed
that proceeding. Cone 460 U.S. at 28 (adding that "(i)fthere is any substantial doubt as to
this, it would be a serious abuse of discretion to grant the stay or dismissal at all"
It follows that this Commission should itself hold its proceedings in abeyance pending
action on the federal question presented by AT&T's federal court complaint. This is especially
appropriate process in this circumstance, where the federal court will be addressing a
potentially dispositive question of federal law. Where a federal ruling will trump or
QWEST CORPORATION'S REPLY IN SUPPORT OF MOTION FOR STAY OF PROCEEDINGS - 3 -
substantially simplify the issues in other proceedings, courts and agencies have not hesitated to
stay such separate proceedings-even if further along than this one before the Commission
in the interest of judicial economy. See e.g., In re Application for Water Rights of us.101
3d 1072, 1083 (Colo. 2004) ("The fact that the state water court obtained jurisdiction over
the Black Canyon case before the federal case was initiated does not persuade us that the water
court abused its discretion in granting the stay" and therefore staying "proceedings pending
resolution of the federal questions raised in the Complaint filed in Federal District Court" was
reasonable). Indeed, this consideration is the primary reason for Qwest's motion here and
weighs heavily in favor of staying this action so that no additional resources are wasted on a
case that is precluded by the federal two-year statute of limitations. AT&T has not disputed
this proposition.
With no legal support, AT&T tries to bolster its baseless opposition by claiming that
Qwest has not cited any authority for the contention that federal courts have exclusive
jurisdiction and that the Federal Act's bar on state court jurisdiction "extends only to 'the
action of a State commission in approving or rejecting an agreement under this section
thereby implying that state courts may have some role in addressing disputes involving
interconnection agreements. Id. at 4 and n.l. Numerous federal and state courts have rejected
this argument as frivolous, including decisions cited in Qwest's motion that AT&T
conveniently ignores. See Qwest Corp. Motion to Stay at 7-8 (citing Southwestern Bell Tel.
Co. v. Brooks Fiber Comm 'cns of Okla. Inc.235 F.3d 493, 497 (lOth Cir. 2000) (finding that
federal court jurisdiction is not limited only to a state commission s approval or rejection of
interconnection agreement, as such a limitation "would lead to results Congress could not have
intended"
);
Southwestern Bell Tel. Co. v. Pub. Uti/. Comm 'n of Tex.208 F.3d 475 (5th Cir.
QWEST CORPORATION'S REPLY IN SUPPORT OF MOTION FOR STAY OF PROCEEDINGS - 4-
2000) (finding that "federal court jurisdiction extends to review of state commission rulings on
complaints pertaining to interconnection agreements and that such jurisdiction is not restricted
to mere approval or rejection of such agreements
);
MCI Telecomm. Corp. v. Bell Atl.Pa.271
3d 491 512 (3d Cir. 2001) (finding "(fJederaljurisdiction for the review of commission
decisions on interconnection agreements is exclusive " given Section 252(e)(4) and 252(e)(6));
MCI Telecomm. Corp. v. Illinois Bell Tel. Co.222 F.3d 323, 337-38 (7th Cir. 2000) (finding
that "Congress envisioned suits reviewing 'actions' by state commissions , as opposed to suits
reviewing only the agreements themselves, and that Congress intended that such suits be
brought exclusively in federal court"
)).
State courts have reached a similar conclusion that should guide the Commission to
grant this stay. See e.g., Union Tel. Co. v. Wyo. Pub. Servo Comm '142 P.3d 678 , 685, 686
(Wyo. 2006) (discussing the clear weight of authority supporting this conclusion and finding
that the state district court correctly determined that it lacked subject matter jurisdiction to
review state commission decision involving an interconnection agreement); MCI WorldCom,
Inc. v. Penn. Pub. Uti/. Comm '844 A.2d 1239, 1249 (Pa. 2004) (finding "that Section
252(e)(5) and 252(e)(6) are indeed meant to be read together and, as a result, it is clear that
jurisdiction over matters involving appeals from state commission decisions on interconnection
agreements lies exclusively in federal courts
Indeed, the exclusive nature of federal jurisdiction over interconnection agreements
under the Federal Act refutes any presumption of concurrent state court jurisdiction. This
presumption ", of course, rebutted if Congress affirmatively ousts the state courts of
jurisdiction over a particular federal claim.Tafflin v. Levitt 493 U.S. 455 , 459 (l990). Here
the federal Act is explicit. See 47 U.C. ~ 252(e)(4). In passing the Federal Act
, "
Congress
QWEST CORPORATION'S REPLY IN SUPPORT OF MOTION FOR STAY OF PROCEEDINGS - 5-
made an explicit statutory directive divesting state courts of jurisdiction to review state
commission determinations on interconnection agreements. Such authority is enjoyed
exclusively by the federal courts.See Bell Atlantic-Pennsylvania, Inc. v. Pennsylvania Public
Utility Comm 295 F. Supp. 2d 529 (E.D. Pa. 2003); Penn. Pub. Uti/. Comm '844 A.2d at
1249 (agreeing that Sections 252(e)(4) and 252(e)(6) made it clear that Congress expressly
divested state courts of jurisdiction to review state commission determinations involving
interconnection agreements); Union Tele. Co.142 P.3d at 685-86 (Wyo. 2006) (same).
Because the federal Court has jurisdiction over AT&T's claim and state courts have no
role in this system, it is unlikely that the federal Court will defer Qwest's motion. Given that
reality, judicial economy is not served by having both actions proceed simultaneously,
particularly when this Commission will be bound by the determinations of the federal Court on
questions of federal law.
This case is thus far from the situation in Roberts v. Hollandsworth 616 P.2d 1058
(Idaho 1980), where comity and federalism considerations made inconsistent judgments a real
concern; there are no comity or federalism concerns here. Under the Federal Act
, "
(g)eneral
principles of comity or federalism do not override that express statement of Congressional
intent, just as they do not override the general grant of jurisdiction provided by 28 U.C. ~
1331 to review precisely the type of question involved in this case.Verizon Del., Inc.
AT&T Telecommc ns of Del. LLC 326 F.Supp.2d 574, 580 (D. Del. 2004) (noting that an
exception to federal jurisdiction simply because state contract principles are required to
interpret an interconnection agreement-products of federal statute--would effectively
swallow the right to bring an action in federal court and render that right illusory, which is an
intolerable result"). As this Commission has found, the Commission is "acting under
QWEST CORPORATION'S REPLY IN SUPPORT OF MOTION FOR STAY OF PROCEEDINGS - 6-
Congressionally delegated power to interpret those (interconnection) agreements" and is
therefore subject to federal court review "regardless of whether the (Commission s) decision is
rooted in state law principles.Verizon Del., Inc.326 F.Supp.2d at 579.
Of course, this case does not even turn on the application of state law principles but
rather the question of whether Section 415 of the Federal Act applies to bar AT&T's action in
the first instance. This is a question that the federal court will have to resolve, and that already
is presented to the court in Qwest's pending motion to dismiss. There simply is no possibility
of conflicting judgments on this question; the federal courts control. Thus, this case presents
the type of circumstances that the Roberts court suggested would justify a state court or agency
in staying a state court action pending the termination of a similar controversy pending ( in)
the federal courts.Roberts 616 P.2d at 1061.
CONCLUSION
For these reasons, Qwest requests that the Commission grant its motion to stay. By
staying this action pending the federal Court's ruling on Qwest's motion to dismiss, the parties
may obtain a prompt and orderly disposition of the action without a risk of inconsistent
decisions. The federal Court's determination of the statute oflimitations question would control
in the Commission proceedings and potentially dispose of both cases.
DATED this l~ay of September, 2007.
Respectfully submitted~(I
999 Main. Suite 1103
Boise, ID 83702
QWEST CORPORATION'S REPLY IN SUPPORT OF MOTION FOR STAY OF PROCEEDINGS - 7-
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct c~y ofthe foregoing Reply in Support of
Motion for Stay of Proceedings was served on theC'day of September , 2007 on the following
individuals:
Jean D. Jewell
Idaho Public Utilities Commission
472 West Washington Street
O. Box 83720
Boise, ID 83702
Telephone (208) 334-0300
Facsimile: (208) 334-3762
i i ewell(ll),puc. state.id. us
Molly O'Leary
Richardson & O'Leary
515 North 27th Street
O. Box 7218
Boise, Idaho 83707
mo 11 y~ri chardsonando I eary. com
Theodore A. Livingston
Dennis G. Friedman
Mayer, Brown, Rowe & Maw LLP
71 South Wacker Drive
Chicago, IL 60606-4637
dfri edman~ma yerbro wn. com
Dan Foley
General Attorney & Assistant General Counsel
AT&T West
O. Box 11010
Reno, Nevada 89520
df6929~att.com
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Mary S. obson
Attorney for Qwest Corporation
QWEST CORPORATION'S REPLY IN SUPPORT OF MOTION FOR STAY OF PROCEEDINGS - 9 -