TITLE 47. TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS CHAPTER 5. WIRE OR RADIO COMMUNICATION COMMON CARRIERS DEVELOPMENT OF COMPETITIVE MARKETS GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION 47 USCS § 252 (2003) § 252.  Procedures for negotiation, arbitration, and approval of agreements (a) Agreements arrived at through negotiation.    (1) Voluntary negotiations. Upon receiving a request for interconnection, services, or network elements pursuant to section 251 [47 USCS § 251], an incumbent local exchange carrier may negotiate and enter into a binding agreement with the requesting telecommunications carrier or carriers without regard to the standards set forth in subsections (b) and (c) of section 251 [47 USCS § 251(b), (c)]. The agreement shall include a detailed schedule of itemized charges for interconnection and each service or network element included in the agreement. The agreement, including any interconnection agreement negotiated before the date of enactment of the Telecommunications Act of 1996 [enacted Feb. 8, 1996], shall be submitted to the State commission under subsection (e) of this section.    (2) Mediation. Any party negotiating an agreement under this section may, at any point in the negotiation, ask a State commission to participate in the negotiation and to mediate any differences arising in the course of the negotiation. (b) Agreements arrived at through compulsory arbitration.    (1) Arbitration. During the period from the 135th to the 160th day (inclusive) after the date on which an incumbent local exchange carrier receives a request for negotiation under this section, the carrier or any other party to the negotiation may petition a State commission to arbitrate any open issues.    (2) Duty of petitioner.       (A) A party that petitions a State commission under paragraph (1) shall, at the same time as it submits the petition, provide the State commission all relevant documentation concerning--          (i) the unresolved issues;          (ii) the position of each of the parties with respect to those issues; and          (iii) any other issue discussed and resolved by the parties.       (B) A party petitioning a State commission under paragraph (1) shall provide a copy of the petition and any documentation to the other party or parties not later than the day on which the State commission receives the petition.    (3) Opportunity to respond. A non-petitioning party to a negotiation under this section may respond to the other party's petition and provide such additional information as it wishes within 25 days after the State commission receives the petition.    (4) Action by State commission.       (A) The State commission shall limit its consideration of any petition under paragraph (1) (and any response thereto) to the issues set forth in the petition and in the response, if any, filed under paragraph (3).       (B) The State commission may require the petitioning party and the responding party to provide such information as may be necessary for the State commission to reach a decision on the unresolved issues. If any party refuses or fails unreasonably to respond on a timely basis to any reasonable request from the State commission, then the State commission may proceed on the basis of the best information available to it from whatever source derived.       (C) The State commission shall resolve each issue set forth in the petition and the response, if any, by imposing appropriate conditions as required to implement subsection (c) upon the parties to the agreement, and shall conclude the resolution of any unresolved issues not later than 9 months after the date on which the local exchange carrier received the request under this section.    (5) Refusal to negotiate. The refusal of any other party to the negotiation to participate further in the negotiations, to cooperate with the State commission in carrying out its function as an arbitrator, or to continue to negotiate in good faith in the presence, or with the assistance, of the State commission shall be considered a failure to negotiate in good faith. (c) Standards for arbitration. In resolving by arbitration under subsection (b) any open issues and imposing conditions upon the parties to the agreement, a State commission shall--    (1) ensure that such resolution and conditions meet the requirements of section 251 [47 USCS § 251], including the regulations prescribed by the Commission pursuant to section 251 [47 USCS § 251];    (2) establish any rates for interconnection, services, or network elements according to subsection (d); and    (3) provide a schedule for implementation of the terms and conditions by the parties to the agreement. (d) Pricing standards.    (1) Interconnection and network element charges. Determinations by a State commission of the just and reasonable rate for the interconnection of facilities and equipment for purposes of subsection (c)(2) of section 251 [47 USCS § 251 (c)(2)], and the just and reasonable rate for network elements for purposes of subsection (c)(3) of such section [47 USCS § 251 (c)(3)]--       (A) shall be--          (i) based on the cost (determined without reference to a rate-of-return or other rate-based proceeding) of providing the interconnection or network element (whichever is applicable), and          (ii) nondiscriminatory, and       (B) may include a reasonable profit.    (2) Charges for transport and termination of traffic.       (A) In general. For the purposes of compliance by an incumbent local exchange carrier with section 251(b)(5) [47 USCS § 251(b)(5)], a State commission shall not consider the terms and conditions for reciprocal compensation to be just and reasonable unless--          (i) such terms and conditions provide for the mutual and reciprocal recovery by each carrier of costs associated with the transport and termination on each carrier's network facilities of calls that originate on the network facilities of the other carrier; and          (ii) such terms and conditions determine such costs on the basis of a reasonable approximation of the additional costs of terminating such calls.       (B) Rules of construction. This paragraph shall not be construed--          (i) to preclude arrangements that afford the mutual recovery of costs through the offsetting of reciprocal obligations, including arrangements that waive mutual recovery (such as bill-and-keep arrangements); or          (ii) to authorize the Commission or any State commission to engage in any rate regulation proceeding to establish with particularity the additional costs of transporting or terminating calls, or to require carriers to maintain records with respect to the additional costs of such calls.    (3) Wholesale prices for telecommunications services. For the purposes of section 251(c)(4) [47 USCS § 251(c)(4)], a State commission shall determine wholesale rates on the basis of retail rates charged to subscribers for the telecommunications service requested, excluding the portion thereof attributable to any marketing, billing, collection, and other costs that will be avoided by the local exchange carrier. (e) Approval by State commission.    (1) Approval required. Any interconnection agreement adopted by negotiation or arbitration shall be submitted for approval to the State commission. A State commission to which an agreement is submitted shall approve or reject the agreement, with written findings as to any deficiencies.    (2) Grounds for rejection. The State commission may only reject--       (A) an agreement (or any portion thereof) adopted by negotiation under subsection (a) if it finds that--          (i) the agreement (or portion thereof) discriminates against a telecommunications carrier not a party to the agreement; or          (ii) the implementation of such agreement or portion is not consistent with the public interest, convenience, and necessity; or       (B) an agreement (or any portion thereof) adopted by arbitration under subsection (b) if it finds that the agreement does not meet the requirements of section 251 [47 USCS § 251], including the regulations prescribed by the Commission pursuant to section 251 [47 USCS § 251], or the standards set forth in subsection (d) of this section.    (3) Preservation of authority. Notwithstanding paragraph (2), but subject to section 253 [47 USCS § 253], nothing in this section shall prohibit a State commission from establishing or enforcing other requirements of State law in its review of an agreement, including requiring compliance with intrastate telecommunications service quality standards or requirements.    (4) Schedule for decision. If the State commission does not act to approve or reject the agreement within 90 days after submission by the parties of an agreement adopted by negotiation under subsection (a), or within 30 days after submission by the parties of an agreement adopted by arbitration under subsection (b), the agreement shall be deemed approved. No State court shall have jurisdiction to review the action of a State commission in approving or rejecting an agreement under this section.    (5) Commission to act if State will not act. If a State commission fails to act to carry out its responsibility under this section in any proceeding or other matter under this section, then the Commission shall issue an order preempting the State commission's jurisdiction of that proceeding or matter within 90 days after being notified (or taking notice) of such failure, and shall assume the responsibility of the State commission under this section with respect to the proceeding or matter and act for the State commission.    (6) Review of State commission actions. In a case in which a State fails to act as described in paragraph (5), the proceeding by the Commission under such paragraph and any judicial review of the Commission's actions shall be the exclusive remedies for a State commission's failure to act. In any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court to determine whether the agreement or statement meets the requirements of section 251 [47 USCS § 251] and this section. (f) Statements of generally available terms.    (1) In general. A Bell operating company may prepare and file with a State commission a statement of the terms and conditions that such company generally offers within that State to comply with the requirements of section 251 [47 USCS § 251] and the regulations thereunder and the standards applicable under this section.    (2) State commission review. A State commission may not approve such statement unless such statement complies with subsection (d) of this section and section 251 [47 USCS § 251] and the regulations thereunder. Except as provided in section 253 [47 USCS § 253], nothing in this section shall prohibit a State commission from establishing or enforcing other requirements of State law in its review of such statement, including requiring compliance with intrastate telecommunications service quality standards or requirements.    (3) Schedule for review. The State commission to which a statement is submitted shall, not later than 60 days after the date of such submission--       (A) complete the review of such statement under paragraph (2) (including any reconsideration thereof), unless the submitting carrier agrees to an extension of the period for such review; or       (B) permit such statement to take effect.    (4) Authority to continue review. Paragraph (3) shall not preclude the State commission from continuing to review a statement that has been permitted to take effect under subparagraph (B) of such paragraph or from approving or disapproving such statement under paragraph (2).    (5) Duty to negotiate not affected. The submission or approval of a statement under this subsection shall not relieve a Bell operating company of its duty to negotiate the terms and conditions of an agreement under section 251 [47 USCS § 251]. (g) Consolidation of State proceedings. Where not inconsistent with the requirements of this Act [47 USCS §§ 151 et seq.], a State commission may, to the extent practical, consolidate proceedings under sections 214(e), 251(f), 253 [47 USCS §§ 214(e), 251(f), 253], and this section in order to reduce administrative burdens on telecommunications carriers, other parties to the proceedings, and the State commission in carrying out its responsibilities under this Act [47 USCS §§ 151 et seq.]. (h) Filing required. A State commission shall make a copy of each agreement approved under subsection (e) and each statement approved under subsection (f) available for public inspection and copying within 10 days after the agreement or statement is approved. The State commission may charge a reasonable and nondiscriminatory fee to the parties to the agreement or to the party filing the statement to cover the costs of approving and filing such agreement or statement. (i) Availability to other telecommunications carriers. A local exchange carrier shall make available any interconnection, service, or network element provided under an agreement approved under this section to which it is a party to any other requesting telecommunications carrier upon the same terms and conditions as those provided in the agreement. (j) Definition of incumbent local exchange carrier. For purposes of this section, the term "incumbent local exchange carrier" has the meaning provided in section 251(h) [47 USCS § 251(h)]. HISTORY:    (June 19, 1934, ch 652, Title II, Part II, § 252, as added Feb. 8, 1996, P.L. 104-104, Title I, Subtitle A, § 101(a), 110 Stat. 66.) NOTES:                           CODE OF FEDERAL REGULATIONS    Federal Communications Commission--Commercial mobile radio services, 47 CFR Part 20.    Federal Communications Commission--Interconnection, 47 CFR Part 51.    Federal Communications Commission--Numbering, 47 CFR Part 52.    Federal Communications Commission--Private land mobile radio services, 47 CFR Part 90.                                CROSS REFERENCES    This section is referred to in 47 USCS §§ 251, 271.                                 RESEARCH GUIDE Federal Procedure:    17A Moore's Federal Practice (Matthew Bender 3d ed.), Access to Courts: Eleventh Amendment and State Sovereign Immunity § 123.41. Am Jur:    74 Am Jur 2d, Telecommunications §§ 16, 26, 169, 184. Law Review Articles:    Weiser. Federal common law, cooperative federalism, and the enforcement of the Telecom Act. 76 NYU L Rev 1692, December 2001.                         INTERPRETIVE NOTES AND DECISIONS I. IN GENERAL  1. Generally  2. Constitutionality  3. Applicability  4. Relationship to other laws  5. Network elements  6. Authority of state commissions  7. Calculation of rates, costs and discounts  8. Adoption of provisions of other interconnection agreement  9. Miscellaneous II. JUDICIAL REVIEW  10. Generally  11. Exhaustion of state administrative remedies  12. Scope of review  13. Standard of review  14. Abstention  15. Standing  16. Parties  17. Immunity  18. Stay of commission decision  19. Miscellaneous I. IN GENERAL 1. Generally    Section 252 (47 USCS § 252) establishes procedures and standards that state commissions must follow when approving and arbitrating agreements under Communications Act (47 USCS §§ 151 et seq.), but nothing in section authorizes FCC to issue regulations regarding which interconnection agreements must be submitted for state approval. Iowa Utils. Bd. v FCC (1997, CA8) 120 F3d 753, 1997-2 CCH Trade Cases P 71876. 2. Constitutionality    State public service commission is denied dismissal of suit by competitor seeking interconnection agreement with incumbent local exchange carrier, where competitor alleges it was not given opportunity to be heard with respect to interconnection and unbundled network rates commission adopted pursuant to incumbent's costs studies, because 47 USCS § 252 is not unconstitutional, and viable claim is stated that commission's failure to provide hearing-deprived competitor of due process of law under § 252. MCI Telcoms. Corp v BellSouth Telcoms. (1998, ED Ky) 9 F Supp 2d 766 (criticized in Bell Atlantic-Maryland, Inc. v MFS Intelenet, Inc. (1999, DC Md) 1999 US Dist LEXIS 16477).    Statutory scheme of Telecommunications Act of 1996 (47 USCS §§ 251 et seq.) does not violate Guarantee Clause, Tenth Amendment, or dual sovereignty of federal and state government established by Constitution, even though, inter alia, § 252(e)(4) and (6) prohibit state court review and provide for federal court review of state commission determinations concerning interconnection agreements, because, although Congress may not compel state to enact any particular legislation, it may induce state to participate in regulatory scheme by conditioning state's receipt of federal funds on taking prescribed action. US West Communs., Inc. v TCG Or. (1998, DC Or) 35 F Supp 2d 1237.    As Congress has power under Commerce Clause, U.S. Const. art. I, § 8, cl. 3, to preempt all state regulation of interconnection agreements, and as 47 USCS § 252 offers states choice to either mediate, arbitrate, approve, or reject interconnection agreements in accord with federal standards or cede authority to take such action to Federal Communications Commission on case-by-case basis, § 252 does not compel states to administer federal regulatory program in violation of Tenth Amendment. Verizon Md., Inc. v RCN Telecom Servs. (2002, DC Md) 232 F Supp 2d 539. 3. Applicability    47 USCS § 252(a)(1) applies to any interconnection agreement which was both negotiated and entered into pursuant to § 251 after Act went into effect, and to agreement which was negotiated before Act went into effect, but which did not become effective until after Act into effect. Iowa Utils. Bd. v FCC (2000, CA8) 219 F3d 744. 4. Relationship to other laws    With respect to local telephone service, provision of Telecommunications Act of 1996 (47 USCS § 252(c)(2)) did not negate jurisdiction of Federal Communications Commission under provision of Communications Act of 1934 (1934 Act) (47 USCS § 201(b)) to design pricing methodology such as "Total Element Long Run Incremental Cost"--based on cost of operating hypothetical telephone network built with most efficient technology available--as set forth in 47 CFR §§ 51.503 and 51.505. AT&T Corp. v Iowa Utils. Bd. (1999) 525 US 366, 142 L Ed 2d 834, 119 S Ct 721, 99 CDOS 633, 99 Daily Journal DAR 773, 1991-1 CCH Trade Cases P 72405, 1999 Colo J C A R 456.    47 USCS § 252(e)(6) does not implicitly grant to district courts jurisdiction that Hobbs Act (28 USCS § 2342) explicitly reserves to courts of appeals on petitions for review of final orders of FCC. GTE South, Inc. v Morrison (1999, CA4 Va) 199 F3d 733 (criticized in New Eng. Tel. & Tel. Co. v Conversent Communs. of R.I. (2001, DC RI) 178 F Supp 2d 81).    District court correctly concluded that state commissioners' order requiring incumbent local telecommunications carrier to offer network elements and services to competitors was preempted under 47 USCS § 261(b) where order provided alternative route around entire interconnection process set forth in 47 USCS § 252. Verizon N., Inc. v Strand (2002, CA6 Mich) 309 F3d 935, 2002 FED App 388P.    Johnson Act (28 USCS § 1342) does not bar federal District Court from exercising jurisdiction over incumbent telephone local exchange carrier's challenge to state public service commission determinations in approving interconnection agreement under 47 USCS § 252(e)(6), because (1) jurisdiction is not based solely on diversity of citizenship or repugnance of order to Constitution, and (2) carrier lacks plain, speedy, and efficient remedy in state courts since they are barred from hearing this claim under § 252(e)(4). U.S. West Communs. v PSC (1998, DC Utah) 991 F Supp 1299 (criticized in Bell Atlantic-Maryland, Inc. v MFS Intelenet, Inc. (1999, DC Md) 1999 US Dist LEXIS 16477) and summary judgment gr, dismd (1999, DC Utah) 75 F Supp 2d 1284.    Having concluded that Public Service Commission of Wisconsin's order was determination under 47 USCS § 252 reviewable in federal court under 47 USCS § 252(e)(6), commissioners' Eleventh Amendment claim was not viable; state's decision to exercise regulatory authority granted to it under 47 USCS §§ 251 and 252 constituted waiver of its Eleventh Amendment immunity. Wis. Bell, Inc. v Bie (2001, WD Wis) 216 F Supp 2d 864.    In its suit under federal antitrust law, competitive local exchange carrier (CLEC) alleged that incumbent local exchange carrier engaged in exclusionary conduct through denial or delay of access to its local network in areas of collocation, access to loops, adequate operations support systems, transport services, and line sharing; court found that CLEC's allegations pertaining to Telecommunciations Act of 1996, 47 USCS § 151 et seq., duties did not constitute exclusionary conduct as matter of antitrust law. Covad Communs. Co. v Bell Atl. Corp. (2002, DC Dist Col) 201 F Supp 2d 123.    In claim that implicated Telecommunications Act of 1996, competing local exchange carrier (CLEC) sufficiently stated claim under § 2 of Sherman Act, codified at 15 USCS § 2, to avoid dismissal for failure to state claim; however, it was doubtful that alleged activities would support antitrust claim in absence of essential facilities violation and whether or not facilities at issue were essential to competition was factual question to be answered at trial; Telecommunications Act did not provide immunity from antitrust action based on preemption, but any claims stating only violation of duty arising solely from Telecommunications Act or interconnection agreement between incumbent local exchange carrier and CLEC did not state claim under antitrust laws. Ohio Bell Tel. Co. v CoreComm Newco, Inc. (2002, ND Ohio) 214 F Supp 2d 810.    Comprehensive remedial provisions under Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in scattered sections of 47 USCS), permitting local-exchange carrier to enforce its right to negotiated, binding interconnection agreement preclude separate cause of action under 42 USCS § 1983. Verizon Md., Inc. v RCN Telecom Servs. (2002, DC Md) 232 F Supp 2d 539.    Even if 47 USCS § 252(e)(6) is construed as empowering federal district courts to hear Fifth Amendment takings claims under Telecommunications Act of 1996 (47 USCS §§ 151 et seq.), there is no basis to conclude that Congress explicitly meant to withdraw Tucker Act (28 USCS § 1491) jurisdiction of Court of Federal Claims to hear those claims as well. Qwest Corp. v United States (2001) 48 Fed Cl 672. 5. Network elements    Directory publishing services qualify as network elements and must be made available by incumbent local exchange carrier to new carrier at cost-based rates. AT&T Communs., Inc. v Bell Atlantic-Virginia, Inc. (1999, CA4 Va) 197 F3d 663.    Remand is required for determination of whether local telephone company's failure to provide access to "dark fiber" impairs interconnecting competitor's ability to provide its services, where dark fiber--fiber-optic cable laid but not yet "lit" by electronics on either end--is network element under FCC regulations, because, according to 47 USCS §§ 251(d)(2) and 252(c)(3), local telephone company must provide competitor nondiscriminatory access to dark fiber if failure to do so would impair ability of competitor to provide services that it seeks to offer. MCI Telecomms. Corp. v BellSouth Telecomms. (1998, ED NC) 7 F Supp 2d 674.    Issue of requiring incumbent local exchange carrier to provide mobile radio service provider access to operational support systems (OSS) is remanded to state public utilities commission for further consideration, where commission determined issue on basis that OSS is network element to be made available to new entrants on unbundled basis according to 47 CFR § 15.319, because Supreme Court recently vacated § 15.319 and whether OSS can be considered unbundled network element is now in doubt. US WEST Communs., Inc. v Minnesota PUC (1999, DC Minn) 55 F Supp 2d 968, motion gr, in part, motion den, in part, remanded (1999, DC Minn) 1999 US Dist LEXIS 22042 and (criticized in U.S. West Communs., Inc. v Hix (2000, DC Colo) 93 F Supp 2d 1115). 6. Authority of state commissions    State commission's power to enforce federally-mandated interconnection agreement arises from § 252, and commission's decision enforcing agreement is "determination" under that section; additionally, authority under § 252 includes grant of jurisdiction to federal courts to review state commission enforcement proceedings for compliance with federal law. Southwestern Bell Tel. Co. v Connect Communs. Corp. (2000, CA8 Ark) 225 F3d 942.    State commission acted within its jurisdiction in interpreting previously approved interconnection agreement between telephone companies, because Telecommunications Act (47 USCS § 252) authorizes state commissions to mediate and arbitrate disputes over interconnection agreements during parties' negotiations, and inherent in this authority is authority to interpret and enforce previously approved agreements. Southwestern Bell Tel. Co. v Brooks Fiber Communs. of Okla., Inc. (2000, CA10 Okla) 235 F3d 493, 2001 Colo J C A R 36 (criticized in BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2002, CA11 Ga) 278 F3d 1223, 15 FLW Fed C 211).    No statutory authority exists to allow state public service commission to interpret contracts between telecommunications carriers. BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2002, CA11 Ga) 278 F3d 1223, 15 FLW Fed C 211.    District court did not err in determining that, although state commission ultimately did not have to accept telecommunications company's proposal for liquidated damages in telecommunications access agreement, state commission did have authority under 47 USCS § 252(b)(4)(C) to impose such conditions and erred by not even considering telecommunications company's proposal. MCI Telecomms. Corp. v BellSouth Telecomms. Inc. (2002, CA11 Fla) 298 F3d 1269, 15 FLW Fed C 852.    Public service commission's decision is declared invalid insofar as it extends termination date of interconnection agreement by 6 months, even though extension was in response to "stonewalling" tactics of incumbent local exchange carrier opposing attempt to opt in to existing interconnection agreement, because FCC did not grant state commissions discretion with respect to modifying termination date of agreements. Bell Atlantic-Delaware, Inc. v Global NAPS South, Inc. (1999, DC Del) 77 F Supp 2d 492.    Under 47 USCS § 252(b), incumbent local exchange carrier's refusal to agree voluntarily to inclusion, in interconnect agreement, of compensation mechanism for breaches of agreement, was "open issue" that competitor local exchange carrier was entitled to submit to, and have resolved by, state public utility commission. MCI Telecomms. Corp. v BellSouth Telecomms., Inc. (2000, ND Fla) 112 F Supp 2d 1286.    Authority of state communications commissioners to arbitrate and interpret interconnection agreements necessarily encompasses power both to interpret and misinterpret (at least in good faith) Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in scattered sections of 47 USCS), and any agreement under it; commissioners exceed scope of their authority, however, and so violate federal law if they enforce their misinterpretation in derogation of right that Act secures. Verizon Md., Inc. v RCN Telecom Servs. (2002, DC Md) 232 F Supp 2d 539. 7. Calculation of rates, costs and discounts    In context of 47 USCS § 252(d)(1), Federal Communications Commission is authorized to require state utility commissions to set rates charged by incumbent local-exchange carriers for leased elements on forward-looking basis untied to incumbents' investment and to require incumbents to combine such elements at entrants' request when they lease them to entrants. Verizon Communs., Inc. v FCC (2002, US) 152 L Ed 2d 701, 122 S Ct 1646, 2002 Daily Journal DAR 5139, 15 FLW Fed S 233.    Nothing in 47 USCS § 252(d)(1) plainly requires reference to historical investment when pegging rates to forward-looking "cost." Verizon Communs., Inc. v FCC (2002, US) 152 L Ed 2d 701, 122 S Ct 1646, 2002 Daily Journal DAR 5139, 15 FLW Fed S 233.    Basing allowable charges for use of incumbent local exchange carrier's existing facilities and equipment on what costs would be if that carrier provided most efficient technology and most efficient configuration available today, utilizing its existing wire center locations, violates plain meaning of Telecommunications Act (47 USCS § 252), since it is clear from language of statute that Congress intended rates to be based on actual cost of providing interconnection or network element, rather than on cost some imaginary carrier would incur by providing newest, most efficient, and least costly substitute for actual item or element furnished. Iowa Utils. Bd. v FCC (2000, CA8) 219 F3d 744.    FCC's use of forward-looking cost methodology in interpreting 47 USCS § 252 (d)(1)(A) was reasonable, since that method of cost calculation was based on incremental costs that incumbent local exchange carrier actually incurred or will incur in providing interconnection to its network or unbundled access to its specific network elements requested by competitor and will produce rates that comply with statutory requirement that incumbent carrier recover its cost of providing shared items. Iowa Utils. Bd. v FCC (2000, CA8) 219 F3d 744.    State commission erred when it concluded that commercial mobile radio service provider should be compensated at end-office rate for incumbent local exchange carrier's traffic terminating on provider's network, rather than at higher tandem rate. U.S. West Communs. v Wash. Utils. & Transp. Comm'n (2001, CA9 Wash) 255 F3d 990, 2001 CDOS 5637, 2001 Daily Journal DAR 6885.    Operator services are not "other costs" under 47 USCS § 252(d)(3), and therefore, resale provision does not require incumbent carrier to eliminate charge for operator services from its retail telephone services package offered to new entrants for resale. AT&T Communs. of the S. States, Inc. v Bellsouth Telcoms., Inc. (2001, CA11 Fla) 268 F3d 1294, 14 FLW Fed C 1381.    Forward-looking model used by state corporation commission in determining pricing standards for interconnection and network element charges was appropriate, even though it did not look at historical costs, where historical costs are "sunk," unavoidable, and bear little relation to current pricing decisions, because 47 USCS § 252(d)(1) is best read as not allowing historical costs. GTE South, Inc. v Morrison (1998, ED Va) 6 F Supp 2d 517 (criticized in US West Communs., Inc. v Garvey (1999, DC Minn) 1999 US Dist LEXIS 22042) and affd (1999, CA4 Va) 199 F3d 733 (criticized in New Eng. Tel. & Tel. Co. v Conversent Communs. of R.I. (2001, DC RI) 178 F Supp 2d 81).    Objection of incumbent local exchange carrier to determination that residential services are subject to wholesale discount must fail, where its net profit or loss on service should be same notwithstanding wholesale discount, because 47 USCS § 252(d)(3) does not exempt residential services from wholesale discount requirement. U S West Communs., Inc. v TCG Or. (1998, DC Or) 31 F Supp 2d 828.    Arbitrator's decision regarding special discount rate for products that are already subject to volume and term discounts is affirmed, where 47 USCS § 252 (d)(3) does not exempt such services per se, because, although less than exact, reduction of wholesale discount rate for those products by one-half is reasonable compromise until public utilities commission obtains data to refine discount rate further. U S West Communs., Inc. v AT&T Communs. (1998, DC Or) 31 F Supp 2d 839, reaffirmed, in part, mod, remanded, count dismd (1999, DC Or) 46 F Supp 2d 1068 (criticized in U.S. West Communs., Inc. v Hix (1999, DC Colo) 57 F Supp 2d 1112).    Competitor's contention that public utilities commission has violated Telecommunications Act of 1996 (47 USCS §§ 153 et seq.) by failing to "deaverage" loop prices must fail, even though Act contemplates competitive world in which services are sold on basis of cost alone, where commission has not refused to deaverage loop prices but wants to do it in orderly fashion, because commission is proceeding with plans to receive input on and address deaveraging. MCI Telcomms. Corp. v U S West Communs., Inc. (1998, DC Or) 31 F Supp 2d 859.    Interconnection agreement violates 47 USCS § 252(d) to extent that competitor must pay carrier common-line charge when it completes intrastate toll calls and must be modified, even though Telecommunications Act of 1996 (47 USCS §§ 153 et seq.) does not preclude public utilities commission from imposing explicit surcharge on all intrastate toll calls in order to fund universal service, because commission errs in having that charge paid to incumbent local exchange carrier under agreement. AT&T Communs. v U S West Communs., Inc. (1998, DC Or) 31 F Supp 2d 861.    In computing cost savings for purposes of setting resale discount rate governing interconnection agreement under 47 USCS § 252(d)(3), state utility regulatory commission was required to take into account new costs that incumbent local exchange carrier would incur as wholesaler. MCI Telcomms. Corp. v GTE Northwest, Inc. (1999, DC Or) 41 F Supp 2d 1157, on reconsideration, clarified, summary judgment gr, remanded (1999, DC Or) 41 F Supp 2d 1157.    Question of whether incumbent local exchange carrier's operations support systems (OSS) access charges are already recovered through its wholesale rates is remanded to state public service commission, where neither hearing examiners nor commission cogently addressed how incumbent arrived at its OSS access costs or how costs attributed to OSS access differ from costs already included in incumbent's wholesale rates, because court cannot determine whether commission or examiners examined cost data or rationally concluded that OSS access charges do not amount to impermissible "double counting." Bell Atlantic-Delaware, Inc. v McMahon (2000, DC Del) 80 F Supp 2d 218 (criticized in BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2000, ND Ga) 97 F Supp 2d 1363).    Incumbent local telephone exchange carrier was required to reduce charges to competitor for wholesale telephone services required to be provided to competitor, under 47 USCS § 252, to reflect extent to which competitor provided its own operator services rather than using operator service made available by incumbent. AT&T Communs. of the S. States, Inc. v GTE Fla., Inc. (2000, ND Fla) 123 F Supp 2d 1318.    Court approved California Public Utilities Commission's decisions as to common cost of incumbent local exchange carrier's leasing unbundled network elements to competitive local exchange carriers to exclude retail service costs. AT&T Communs. of Cal., Inc. v Pac. Bell Tel. Co. (2002, ND Cal) 228 F Supp 2d 1086. 8. Adoption of provisions of other interconnection agreement    Competing local exchange carrier which desired interconnection agreement with incumbent local exchange carrier, but was unable to acquire agreement through negotiations, was properly allowed to adopt certain provisions from interconnection agreement that incumbent had with another carrier which had been approved by appropriate state commission, while arbitrating terms of other provisions which competing carrier desired to have in agreement. Southwestern Bell Tel. Co. v Waller Creek Communs., Inc. (2000, CA5 Tex) 221 F3d 812 (criticized in Verizon North, Inc. v Strand (2000, WD Mich) 140 F Supp 2d 803).    Language of 47 USCS § 252(I) allows competing local exchange carrier to effectively amend its own interconnection agreement by taking advantage of more favorable provisions contained in other competing local exchange carrier interconnection agreements. U.S. West Communs., Inc. v Sprint Communs. Co., L.P. (2002, CA10 Colo) 275 F3d 1241.    Under 47 USCS § 252(i), competing local exchange carrier was entitled to "opt in" to inter-connection, unbundled element, or resale arrangements contained in incumbent local telephone exchange carrier's subsequently approved interconnection agreements with other local exchange carriers. U S W. Communs. v Hix (2000, DC Colo) 183 F Supp 2d 1249. 9. Miscellaneous    Both text of 47 USCS § 251(a)(1) and structure of 47 USCS § 252 strongly indicate that to "interconnect" and to exchange traffic have distinct meanings, as former section refers only to "facilities and equipment," not to provision of any service; thus, FCC correctly interpreted duty to interconnect as referring solely to physical linking of two networks, and not to exchange of traffic between networks. AT&T Corp. v FCC (2003, App DC) 317 F3d 227.    Issue of requiring incumbent local exchange carrier to provide mobile radio service provider access to operational support systems (OSS) is remanded to state public utilities commission for further consideration, where commission determined issue on basis that OSS is network element to be made available to new entrants on unbundled basis according to 47 CFR § 15.319, because Supreme Court recently vacated § 15.319 and whether OSS can be considered unbundled network element is now in doubt. US WEST Communs., Inc. v Minnesota PUC (1999, DC Minn) 55 F Supp 2d 968, motion gr, in part, motion den, in part, remanded (1999, DC Minn) 1999 US Dist LEXIS 22042 and (criticized in U.S. West Communs., Inc. v Hix (2000, DC Colo) 93 F Supp 2d 1115).    Public service commission's requirement that incumbent local exchange carrier provide intraLATA toll service to interconnecting carrier's customers will not be disturbed, where ILEC waived its objections to arbitrators' jurisdiction to decide issue, because refusal to offer such service would have presented substantial roadblock to carrier's entry into local exchange market, and arbitrators acted within their authority pursuant to 47 USCS § 252(e)(3). Michigan Bell Tel. Co. v Climax Tel. Co. (2000, WD Mich) 121 F Supp 2d 1104.    Traditional land-line telephone company could not be liable in cellular telephone customer's products liability action alleging that radiation from use of phones had caused customer's brain cancer, on theory that land lines came into play in transmission of cellular signals between transmission towers and switching stations, where company, as communications carrier regulated by FCC, was required by 47 USCS § 252(a)(1) to make land lines available for leasing and interconnection with wireless carriers. Newman v Motorola, Inc. (2000, DC Md) 125 F Supp 2d 717, CCH Prod Liab Rep P 15994.    Competing local exchange carrier (CLEC) must submit change orders to incumbent via updated electronic interface as provided in interconnection agreement, even though CLEC convinced state public service commission that it should be allowed to fax change orders as provided in state tariff, because, if party to interconnection agreement is unilaterally allowed to rely upon more favorable tariff provisions, once agreed upon contract terms are no longer feasible from business standpoint and Telecommunications Act's (47 USCS §§ 261 et seq.) scheme favoring negotiated contracts will be undermined. Mich. Bell Tel. Co. v MCI Metro Access Transmission Servs. (2001, ED Mich) 128 F Supp 2d 1043.    Incumbent local exchange carrier disputed order by state public service commission which found that competitive local exchange carrier's (CLEC) traffic was local, and thus qualified for Federal Communication Commission's (FCC) safe harbor's provisions, because CLEC's internet service provider traffic did not have to include voice telephone traffic to qualify for safe harbor options. Mich. Bell Tel. Co. v Level 3 Communs., LLC (2002, ED Mich) 218 F Supp 2d 891. II. JUDICIAL REVIEW 10. Generally    With respect to Telecommunications Act of 1996 (47 USCS §§ 251 et seq.), where incumbent, whose federal district court action under 28 USCS § 1331 alleged that state utility commission's order requiring reciprocal compensation for telephone calls to Internet Service Providers violated federal law, sought declaratory judgment that commission's order was unlawful and injunction prohibiting order's enforcement, even if it were assumed, without deciding, that commission had not waived its immunity from suit under Eleventh Amendment, then doctrine of Ex parte Young (1908) 209 US 123, 52 L Ed 714, 28 S Ct 441, permitted incumbent to go forward against individual commissioners in their official capacities, because: (1) Ex parte Young doctrine provided that a federal court had jurisdiction over suit against state officer to enjoin official actions that violated federal law, even if state itself was immune from suit under Eleventh Amendment; (2) incumbent's prayer for injunctive relief called for straightforward inquiry concerning alleged violation of federal law, where United States Supreme Court had approved injunction suits against state regulatory commissioners in like contexts; (3) incumbent's prayer for declaratory relief (a) placed no past liability of the state, or of any of its commissioners, at issue, and (b) insofar as exposure of state was concerned, added nothing to prayer for injunction; and (4) Act did not display any intent to foreclose jurisdiction under Ex parte Young, for (a) even with regard to determinations by state commissions that Act covered, it placed no restriction on relief court could award, (b) Act did not even say whom suit was to be brought against--state commission, individual commissioners, or carriers benefiting from state commission's order--and (c) mere fact that Congress had authorized federal courts to review whether commission's action complied with 47 USCS §§ 251 and 252 did not, without more, impose upon state liability that was significantly more limited than would have been the liability imposed upon state officer under Ex parte Young. Verizon Md. Inc. v PSC (2002, US) 152 L Ed 2d 871, 122 S Ct 1753, 2002 CDOS 4316, 2002 Daily Journal DAR 5466, 15 FLW Fed S 290.    47 USCS § 252(e)(6) does not implicitly grant to district courts jurisdiction that Hobbs Act (28 USCS § 2342) explicitly reserves to courts of appeals on petitions for review of final orders of FCC. GTE South, Inc. v Morrison (1999, CA4 Va) 199 F3d 733 (criticized in New Eng. Tel. & Tel. Co. v Conversent Communs. of R.I. (2001, DC RI) 178 F Supp 2d 81).    State commission's power to enforce federally-mandated interconnection agreement arises from 47 USCS § 252, and commission's decision enforcing agreement is "determination" under that section; additionally, authority under § 252 includes grant of jurisdiction to federal courts to review state commission enforcement proceedings for compliance with federal law. Southwestern Bell Tel. Co. v Connect Communs. Corp. (2000, CA8 Ark) 225 F3d 942.    Federal district court review of state utility commission's determinations under Telecommunication's Act is exclusive means to attain review of such determinations under 47 USCS § 252(e)(6). AT&T Communs., Inc. v Michigan Bell Tel. Co. (1998, ED Mich) 60 F Supp 2d 636.    State Public Utilities Commission's ruling that Internet traffic was local traffic for purposes of telephone interconnection agreement's reciprocal compensation rules, was "determination" under 47 USCS § 252(e)(6), and, thus, was reviewable by federal district court, where Commission's ruling decided meaning of key term in agreement. New Eng. Tel. & Tel. Co. v Conversent Communs. of R.I. (2001, DC RI) 178 F Supp 2d 81.    Order of Public Service Commission of Wisconsin, which directed arbitration panels considering reciprocal compensation to classify Internet-bound calls as local traffic subject to reciprocal payments, was action by state commission that related to interconnection agreements, and was reviewable in federal court under 47 USCS § 252(e)(6). Wis. Bell, Inc. v Bie (2001, WD Wis) 216 F Supp 2d 864.    General four-year statute of limitations under 28 USCS § 1658(a) applies to cause of action under 47 USCS § 252(e)(6) to prevent enforcement of state commission's misinterpretation of interconnection agreement; cause of action arises under Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified as amended in scattered sections of 47 USCS), and did not exist under pre-1996 Telecommunications Act of 1934. Verizon Md., Inc. v RCN Telecom Servs. (2002, DC Md) 232 F Supp 2d 539. 11. Exhaustion of state administrative remedies    Newcomer seeking entry into local exchange market was not required to exhaust administrative remedies established by state law as prerequisites to review of orders of state's public utilities commission by state courts, before seeking judicial review in federal court. AT&T Communs. Sys. v Pacific Bell (2000, CA9 Cal) 203 F3d 1183, 2000 CDOS 1158, 2000 Daily Journal DAR 1657.    District Court scope of review was not extended by 47 USCS § 252(e)(6) to determinations prior to stage of approval or rejection of interconnection agreement or telecommunication operating company's statement of generally available terms, and, thus, court lacked jurisdiction over incumbent telephone local exchange carrier's action against state public service commission and prospective competitive local exchange carrier, where action challenged commission's interconnection arbitration order setting interim wholesale rates and directing that incumbent carrier submit cost studies and that parties submit interconnection agreement for review. GTE South v Breathitt (1997, ED Ky) 963 F Supp 610.    Challenge by incumbent telephone local exchange carrier to arbitrator's order must be dismissed for lack of subject-matter jurisdiction, where order has been incorporated into interconnection agreement with incoming provider which has been submitted to state utilities commission for approval, because language of 47 USCS § 252 and content and structure of Telecommunications Act of 1996 (47 USCS §§ 251 et seq.) show intent of Congress to delay judicial review until interconnection agreement has been acted on by state utility commission. GTE Northwest v Nelson (1997, WD Wash) 969 F Supp 654.    Suit by local telephone company is dismissed for lack of subject-matter jurisdiction, where suit arises from competing telecommunications carrier's effort to interconnect with company but no interconnection agreement has yet been submitted, much less approved, by state public utility commission, because 47 USCS § 252(e)(6) is clear in limiting court's jurisdiction to determining whether agreement meets requirements of Telecommunications Act of 1996 (47 USCS §§ 251 et seq.). GTE Northwest v Hamilton (1997, DC Or) 971 F Supp 1350.    Incumbent local telephone service provider's action against competitors is dismissed without prejudice, where provider seeks judicial review of arbitration orders arising from negotiations regarding "interconnection" agreements, but state utility regulatory commission has not yet ruled on any final agreement, because language, structure, and purpose of Telecommunications Act amendments dealing with local telephone service competition (47 USCS §§ 251 et seq.) make it fairly discernible that Congress intended to preclude judicial review until state commission either approves or rejects final interconnection agreement. GTE North Inc. v McCarty (1997, ND Ind) 978 F Supp 827.    Court challenge to parts of local telephone service interconnection agreement still being worked out is premature, despite challenger's contention that "determination" in 47 USCS § 252(e)(6) should be construed broadly to mean every decision made by public utilities commission leading up to final agreement, because tightly restricted timetables prescribed by § 252 remove any conceivable doubt that Congress intended that state commission administrative processes remain unimpeded until interconnection agreement is completed and approved. GTE North v Glazer (1997, ND Ohio) 989 F Supp 922.    Order of state corporation commission is not reviewable under 47 USCS § 252 (e)(6), where order at issue was mere ruling upon recommendations of arbiter engaged to conduct § 252(b) arbitration between incumbent local exchange carrier and competitor seeking to enter market, not ruling upon final agreement submitted in accordance with § 252(e), because such early interference by court in statutory process would lead to piecemeal litigation disruptive of scheme contemplated by legislation. GTE Southwest v Graves (1997, WD Okla) 989 F Supp 1148.    Counts 4 and 5 of complaint, arising out of negotiation of agreement between incumbent local exchange carrier and competing carrier, must be dismissed, where there has been no determination issued by state public utility commission with respect to those counts, because counts are not ripe for judicial review under 47 USCS § 252(e)(6). AT&T Communs. of Ohio, Inc. v Ohio Bell Tel. Co. (1998, SD Ohio) 29 F Supp 2d 855.    Counterclaims of new entrant to local telephone market are dismissed for lack of subject-matter jurisdiction, where counterclaims regard issues of contract interpretation not arbitrated by state utility regulatory commission, because circumventing commission would jeopardize entire system of review established by Telecommunications Act of 1996 (47 USCS §§ 251 et seq.). Indiana Bell Tel. Co. v McCarty (1998, SD Ind) 30 F Supp 2d 1100 (criticized in Bell Atlantic-Maryland, Inc. v MFS Intelenet, Inc. (1999, DC Md) 1999 US Dist LEXIS 16477).    Telephone company's 47 USCS § 252(e)(6) claims against numerous rural telephone companies are dismissed without prejudice for lack of subject-matter jurisdiction, even though it asserts that extended area service agreements between itself and rural companies are not in compliance with new federal law designed to promote competition in local telephone service markets, where decision of state regulatory commission to postpone final determination on merits of proposed interconnection agreements is not final, reviewable agency action, because company should allow state administrative process to continue. Indiana Bell Tel. Co. v Smithville Tel. Co. (1998, SD Ind) 31 F Supp 2d 628.    Local exchange carrier's "taking" challenge to interconnection agreement with competitor is ripe for review, where carrier alleges that it has executed final binding agreement setting out terms of interconnection with competitor based upon public utility commission orders and that it is required to provide certain services and facilities at prices that will not allow it to recover its costs, because, although identified as "interim," rates at issue here are sufficiently fixed to warrant judicial review. US West Communs., Inc. v MFS Intelenet, Inc. (1998, DC Or) 35 F Supp 2d 1221 (criticized in Bell Atlantic-Maryland, Inc. v MFS Intelenet, Inc. (1999, DC Md) 1999 US Dist LEXIS 16477).    District Court lacked subject-matter jurisdiction under 47 USCS § 252(e)(6) to hear interconnection dispute between telecommunication carriers, where state commission had not issued final order approving interconnection agreement. AT&T Communs. v Southwestern Bell Tel. Co. (1999, DC Kan) 38 F Supp 2d 902. 12. Scope of review    Federal courts may review state commission's actions with respect to agreement only for compliance with requirements of § 251 and § 252 of Telecommunications Act (47 USCS § 251 and § 252), and not for compliance with state law; further, although § 252 does not contain express waiver of states' sovereign immunity, in enacting statute, Congress clearly intended to provide for federal court review of any regulatory determinations made thereunder, whether by state commission or by FCC acting in place of state commission. MCI Telecomms. Corp. v Illinois Commerce Comm'n (1999, CA7 Ill) 168 F3d 315, amd (1999, CA7 Ill) 183 F3d 558 and (criticized in Southwestern Bell Tel. Co. v PUC (2000, CA5 Tex) 208 F3d 475) and (criticized in Michigan Bell Tel. Co. v Climax Tel. Co. (2000, WD Mich) 121 F Supp 2d 1104).    Federal district courts are not limited to reviewing only interconnection agreements, and decisions of state agencies implementing Telecommunications Act of 1996 (47 USCS § 252) are also reviewable; further, state commissions can be parties to federal court suits reviewing their actions Illinois Bell Tel. Co. v Worldcom Techs., Inc. (1999, CA7 Ill) 179 F3d 566, amd (1999, CA7 Ill) 1999 US App LEXIS 20635 and reprinted as amd (1999, CA7 Ill) 1999 US App LEXIS 20828, reh den, reh, en banc, den (2000, CA7 Ill) 2000 US App LEXIS 19163 and ( criticized in Southwestern Bell Tel. Co. v PUC (2000, CA5 Tex) 208 F3d 475) and (criticized in BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2000, ND Ga) 97 F Supp 2d 1363) and (criticized in Michigan Bell Tel. Co. v Climax Tel. Co. (2000, WD Mich) 121 F Supp 2d 1104) and (criticized in Bell Atl. Md., Inc. v MCI Worldcom, Inc. (2001, CA4 Md) 240 F3d 279) and (criticized in BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2002, CA11 Ga) 278 F3d 1223, 15 FLW Fed C 211).    Telecommunications Act did (47 USCS § 252) not provide federal courts with jurisdiction over order by Regulatory Board of Puerto Rico, where challenged board order lacked sufficient nexus with parties' interconnection agreement to be determination which was subject to review. Puerto Rico Tel. Co. v Telecommunications Regulatory Bd. (1999, CA1 Puerto Rico) 189 F3d 1.    Federal court jurisdiction extends to review of state commission rulings on complaints pertaining to interconnection agreements, and such jurisdiction is not restricted to mere approval or rejection of such agreements. Southwestern Bell Tel. Co. v PUC (2000, CA5 Tex) 208 F3d 475, reh den (2000, CA5 Tex) 2000 US App LEXIS 16086 and (criticized in Bell Atl. Md., Inc. v MCI Worldcom, Inc. (2001, CA4 Md) 240 F3d 279) and (criticized in BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2002, CA11 Ga) 278 F3d 1223, 15 FLW Fed C 211).    47 USCS § 252 does not preclude review of order issued by state's public service commission and directed at incumbent local telecommunications carrier, which order was entered in independent state law proceeding. GTE North, Inc. v Strand (2000, CA6 Mich) 209 F3d 909, 2000 FED App 141P (criticized in MCI Telcoms. Corp. v Illinois Bell Tel. Co. (2000, CA7 Ill) 222 F3d 323) and (criticized in Bell Atlantic-Pennsylvania, Inc. v Pennsylvania PUC (2000, ED Pa) 107 F Supp 2d 653) and cert den (2000) 531 US 957, 148 L Ed 2d 293, 121 S Ct 380, summary judgment gr, in part, summary judgment den, in part,, request den, injunction den (2000, WD Mich) 140 F Supp 2d 803.    District court had jurisdiction to review decision of state commission interpreting interconnection agreement between telephone companies, and court's review was not limited to reviewing commission's actions only for compliance with federal law, but could also include reviewing state law determinations, including application of state contract law. Southwestern Bell Tel. Co. v Brooks Fiber Communs. of Okla., Inc. (2000, CA10 Okla) 235 F3d 493, 2001 Colo J C A R 36 (criticized in BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2002, CA11 Ga) 278 F3d 1223, 15 FLW Fed C 211).    In action seeking to enforce decision rendered by state's utilities commission, district court erred in asserting federal jurisdiction under 47 USCS § 252(e)(6) over private parties, since action was primarily contract dispute. BellSouth Telecomms. v North Carolina Utils. Comm'n (2001, CA4 NC) 240 F3d 270.    Action against local exchange carriers seeking declaratory judgment to interpret and injunction to enforce already approved interconnection agreements did not fall into category of actions identified by 47 USCS § 252(e)(6) for resolution in federal court. Bell Atl. Md., Inc. v MCI Worldcom, Inc. (2001, CA4 Md) 240 F3d 279 (criticized in MCI Telcoms. Corp. v N.Y. Tel. Co. (2001, ND NY) 134 F Supp 2d 490) and (criticized in Ohio Bell Tele. Co. v. ICG Telecom Group, Inc. (2001, SD Ohio) 171 F Supp 2d 721) and (criticized in MCI Telcom. Corp. v Bell Atlantic-Pennsylvania Serv. (2001, CA3 Pa) 271 F3d 491) and (criticized in U.S. West Communs., Inc. v Sprint Communs. Co., L.P. (2002, CA10 Colo) 275 F3d 1241).    U.S. Court of Appeals for the Ninth Circuit follows Telecommunications Act of 1996's charge to federal courts to review interconnection agreements for compliance with Act, rather than for correctness of state public utilities commission's decisions; accordingly, court of appeals is required to apply all valid, implementing Federal Communications Commission regulations in effect when court reviews case, including those reinstated and those newly promulgated, to disputed interconnection agreements. US West Communs., Inc. v Jennings (2002, CA9 Ariz) 304 F3d 950, 2002 CDOS 9743, 2002 Daily Journal DAR 10991.    District court properly concluded that it lacked subject matter jurisdiction under 47 USCS § 252(e)(6) over telecommunications provider's challenge to telephone company's agreement to provide asynchronous transfer mode cell relay service to university where, even assuming that agreement was interconnection agreement, provider had not mentioned Telecommunications Act of 1996 in arguing that contract was discriminatory and anticompetitive, and state utilities commission had approved contract as special contract under state statute, but had not made determination approving or rejecting agreement under 47 USCS § 252. Destek Group, Inc. v N.H. PUC (2003, CA1 NH) 318 F3d 32.    Federal Communications Commission's (FCC's) conclusion that 47 USCS § 252 (e)(5) did not empower it to look behind state regulatory agency's dismissal of local exchange carrier's claim to evaluate substantive dismissal was both reasonable interpretation of that provision and consistent with FCC's past precedents and practices; therefore FCC's determination that state regulatory agency did not "fail to act to carry out its responsibility" under Telecommunications Act of 1996, 47 USCS § 609, was reasonable and petition for review of FCC's decision was denied. Global Naps, Inc. v FCC (2002, App DC) 291 F3d 832, subsequent app (2002, App DC) 2002 US App LEXIS 11638.    Incumbent local exchange carrier is denied judicial review of state public service commission rulings in arbitration of interconnection agreements being negotiated by carrier and requesting carriers, even though it claims rulings are inconsistent with requirements of Telecommunications Act (47 USCS §§ 251 et seq.), because court action is only authorized, under § 252(e)(6), to determine whether "agreement" meets requirements of Act and parties have not yet achieved agreement. GTE Fla. v Johnson (1997, ND Fla) 964 F Supp 333.    Declaratory relief from "interconnection agreement" is denied telecommunications carrier attempting to compete with incumbent to offer local exchange service, where nature of carrier's switch was properly before arbitration panel and state commission, because, under 47 USCS § 252, reciprocal compensation rates for local telephone traffic could not be established without determination of pricing of switch. TCG Milwaukee v PSC (1997, WD Wis) 980 F Supp 992.    Court lacked subject-matter jurisdiction under 47 USCS § 252 to review order of Puerto Rico regulatory board determining that telephone local exchange carrier violated carrier's duty to act in good faith pursuant to Puerto Rico law in fulfilling carrier's obligations under interconnection agreement with provider of cellular telephone services. Puerto Rico Tel. Co. v Telecommunications Regulatory Bd. (1998, DC Puerto Rico) 20 F Supp 2d 308, affd (1999, CA1 Puerto Rico) 189 F3d 1.    State Public Utilities Commission's ruling that Internet traffic was local traffic for purposes of telephone interconnection agreement's reciprocal compensation rules, was "determination" under 47 USCS § 252(e)(6), and, thus, was reviewable by federal district court, where Commission's ruling decided meaning of key term in agreement. New Eng. Tel. & Tel. Co. v Conversent Communs. of R.I. (2001, DC RI) 178 F Supp 2d 81. 13. Standard of review    In reviewing state utilities commission's approval of interconnection agreement pursuant to 47 USCS § 252(e)(1), court will use de novo standard with regard to questions of law, and arbitrary and capricious standard otherwise, because this dual standard of review captures essence of pertinent case authorities and strikes appropriate balance between acknowledgment of technical expertise that state commissions have regarding many facets of intrastate telecommunications, novel nature of mission given to state commissions, and duty of court to make sure that state agencies are appropriately applying federal law. U.S. West Communs., Inc. v Hix (1997, DC Colo) 986 F Supp 13 (criticized in US West Communs., Inc. v PSC (1999, DC Utah) 75 F Supp 2d 1284).    Challenge to state public utilities commission decision approving interconnection agreement, on ground that requirement imposed was not authorized under 47 USCS § 252(e), poses question of federal law that must be reviewed de novo. U.S. West Communs., Inc. v Hix (1999, DC Colo) 57 F Supp 2d 1112.    Even if 47 USCS § 252(e)(6) is construed as empowering federal district courts to hear Fifth Amendment takings claims under Telecommunications Act of 1996 (47 USCS §§ 151 et seq.), there is no basis to conclude that Congress explicitly meant to withdraw Tucker Act (28 USCS § 1491) jurisdiction of Court of Federal Claims to hear those claims as well. Qwest Corp. v United States (2001) 48 Fed Cl 672. 14. Abstention    Federal court had exclusive jurisdiction over claim under 47 USCS § 252(e)(6) asserted by telephone local exchange carrier concerning state agency's order interpreting local exchange carrier interconnection agreements, and, thus, abstention under Young and Burford was not appropriate. Michigan Bell Tel. Co. v MFS Intelenet, Inc. (1998, WD Mich) 16 F Supp 2d 817, motions ruled upon (1998, WD Mich) 16 F Supp 2d 828 and (criticized in Southwestern Bell Tel. Co. v Connect Communs., Corp. (1999, ED Ark) 72 F Supp 2d 1043) and (criticized in Bell Atlantic-Maryland, Inc. v MFS Intelenet, Inc. (1999, DC Md) 1999 US Dist LEXIS 16477).    Younger abstention was not warranted in suit under 47 USCS § 252 challenging public utilities commission's rate and network access determinations for competing local exchange carriers, since abstention was not applicable when state-court action was simply challenge to decision of state's ratemaking body. Bell Atlantic-Pennsylvania, Inc. v Pennsylvania PUC (2000, ED Pa) 107 F Supp 2d 653, affd, in part, remanded (2001, CA3 Pa) 273 F3d 337. 15. Standing    Action by Citizens' Utility Ratepayer Board seeking permission to intervene in arbitration proceedings between interconnecting telephone provider and local exchange carrier must be dismissed, where board is not "aggrieved party" within meaning of 47 USCS § 252(e)(6), because board lacks standing to bring this action in federal court. Citizens' Util. Ratepayer Bd. v McKee (1996, DC Kan) 946 F Supp 893. 16. Parties    Federal district courts are not limited to reviewing only interconnection agreements, and decisions of state agencies implementing Telecommunications Act of 1996 (47 USCS § 252) are also reviewable; further, state commissions can be parties to federal court suits reviewing their actions Illinois Bell Tel. Co. v Worldcom Techs., Inc. (1999, CA7 Ill) 179 F3d 566, amd (1999, CA7 Ill) 1999 US App LEXIS 20635 and reprinted as amd (1999, CA7 Ill) 1999 US App LEXIS 20828, reh den, reh, en banc, den (2000, CA7 Ill) 2000 US App LEXIS 19163 and (criticized in Southwestern Bell Tel. Co. v PUC (2000, CA5 Tex) 208 F3d 475) and (criticized in BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2000, ND Ga) 97 F Supp 2d 1363) and (criticized in Michigan Bell Tel. Co. v Climax Tel. Co. (2000, WD Mich) 121 F Supp 2d 1104) and (criticized in Bell Atl. Md., Inc. v MCI Worldcom, Inc. (2001, CA4 Md) 240 F3d 279) and (criticized in BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2002, CA11 Ga) 278 F3d 1223, 15 FLW Fed C 211).    Congress intended state commissions to be parties to federal court suits reviewing their actions and that such suits would review actions of state commissions; further, state's decision to exercise regulatory authority, which would have otherwise remained exclusively under federal control, triggered waiver of its sovereign immunity from suit in federal court. MCI Telcomms. Corp. v Illinois Commerce Comm'n (1999, CA7 Ill) 183 F3d 558 (criticized in BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2000, ND Ga) 97 F Supp 2d 1363).    Commissioners are proper parties in federal action brought under 47 USCS § 252(e)(6), challenging state commission's determination regarding arbitrated agreement between incumbent local exchange carrier and newcomer to market. Michigan Bell Tel. Co. v Climax Tel. Co. (2000, CA6 Mich) 202 F3d 862, 2000 FED App 25A, mod, reh, en banc, den (2000, CA6) 2000 US App LEXIS 2506 and (criticized in BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2000, ND Ga) 97 F Supp 2d 1363) and (criticized in MCI Telcoms. Corp. v Illinois Bell Tel. Co. (2000, CA7 Ill) 222 F3d 323) and cert den (2000) 531 US 816, 148 L Ed 2d 22, 121 S Ct 54. 17. Immunity    Federal courts may review state commission's actions with respect to agreement only for compliance with requirements of § 251 and § 252 of Telecommunications Act (47 USCS § 251 and § 252), and not for compliance with state law; further, although § 252 does not contain express waiver of states' sovereign immunity, in enacting statute, Congress clearly intended to provide for federal court review of any regulatory determinations made thereunder, whether by state commission or by FCC acting in place of state commission. MCI Telecomms. Corp. v Illinois Commerce Comm'n (1999, CA7 Ill) 168 F3d 315, amd (1999, CA7 Ill) 183 F3d 558 and (criticized in Southwestern Bell Tel. Co. v PUC (2000, CA5 Tex) 208 F3d 475) and (criticized in Michigan Bell Tel. Co. v Climax Tel. Co. (2000, WD Mich) 121 F Supp 2d 1104).    Congress intended state commissions to be parties to federal court suits reviewing their actions and that such suits would review actions of state commissions; further, state's decision to exercise regulatory authority, which would have otherwise remained exclusively under federal control, triggered waiver of its sovereign immunity from suit in federal court. MCI Telcomms. Corp. v Illinois Commerce Comm'n (1999, CA7 Ill) 183 F3d 558 (criticized in BellSouth Telecomms., Inc. v MCImetro Access Transmission Servs. (2000, ND Ga) 97 F Supp 2d 1363).    State voluntarily waived its sovereign immunity when its public service commission, through its commissioners, arbitrated interconnection dispute. MCI Telcoms. Corp. v PSC (2000, CA10 Utah) 216 F3d 929, 2000 Colo J C A R 3570, cert den (2001) 531 US 1183, 148 L Ed 2d 1026, 121 S Ct 1167.    Private carriers may sue state commissions and their commissioners in federal court for alleged violations of 47 USCS § 252, and Eleventh Amendment does not bar such suits, because states have waived their Eleventh Amendment immunity by participating in regulatory scheme created by Act. MCI Telcoms. Corp. v Illinois Bell Tel. Co. (2000, CA7 Ill) 222 F3d 323, cert den (2001) 531 US 1132, 148 L Ed 2d 802, 121 S Ct 896 and cert den (2001) 531 US 1132, 148 L Ed 2d 802, 121 S Ct 896 and request den, remanded (2001, WD Wis) 2001 US Dist LEXIS 22580.    Telecommunications carrier was not barred by Eleventh Amendment from bringing suit in federal district court against state public service commission under § 252(e)(6) of Telecommunications Act (47 USCS §§ 151 et seq.) for judicial review of whether commission's arbitration determination with respect to interconnection agreement met requirements of § 151 of Act. AT&T Communs. v BellSouth Telecomms. Inc. (2001, CA5 La) 238 F3d 636, reh den, reh, en banc, den (2001, CA5 La) 252 F3d 437.    Telecommunications Act of 1996 (47 USCS §§ 151-614) may fairly be construed to condition states' participation in regulation under Act on their consent to federal review of state commission determinations made under 47 USCS § 252, but Act makes no reference to any authorization to sue state itself in federal court nor does it suggest that states waive their Eleventh Amendment immunity. BellSouth Telecomms. v North Carolina Utils. Comm'n (2001, CA4 NC) 240 F3d 270.    Neither state's public utilities commission nor its commissioners have Eleventh Amendment immunity from action under 47 § 252(e)(6). Bell Atlantic-Pennsylvania, Inc. v Pa. Pub. Util. Comm'n (2001, CA3 Pa) 273 F3d 337.    State has waived its sovereign immunity and its utilities and transportation commission should be joined in suit challenging commission's approval of local telephone service interconnection agreement, where it appears Congress conditioned state participation in interconnection agreement negotiation, arbitration, and approval process on consent to federal judicial review of state's participatory actions, because 47 USCS § 252(e)(6) provides that where state commission makes determination regarding agreement, any aggrieved party "may bring action in appropriate federal District Court to determine whether agreement meets requirements." US West Communs., Inc. v TCG Seattle (1997, WD Wash) 971 F Supp 1365, 38 FR Serv 3d 1367.    47 USCS § 252(e)(6) provides clear notice to states that their commissions will have to defend their rulings in federal court and, thus, Act satisfies notice requirement for application of implied waiver doctrine, under which Congress may condition state's participation in federally regulated activity upon state's waiver of Eleventh Amendment immunity from lawsuits arising out of activity. Wisconsin Bell v PSC (1998, WD Wis) 27 F Supp 2d 1149, dismd (1999, WD Wis) 57 F Supp 2d 710 (criticized in MCI Telcoms. Corp. v PSC (2000, CA10 Utah) 216 F3d 929, 2000 Colo J C A R 3570) and revd on other grounds, remanded (2000, CA7 Ill) 222 F3d 323, cert den (2001) 531 US 1132, 148 L Ed 2d 802, 121 S Ct 896 and cert den (2001) 531 US 1132, 148 L Ed 2d 802, 121 S Ct 896 and request den, remanded (2001, WD Wis) 2001 US Dist LEXIS 22580.    State agency did not constructively waive Eleventh Amendment immunity from suit in federal court by becoming involved in interconnection process set forth in 47 USCS § 252(e). Wisconsin Bell v PSC (1999, WD Wis) 57 F Supp 2d 710 (criticized in MCI Telcoms. Corp. v PSC (2000, CA10 Utah) 216 F3d 929, 2000 Colo J C A R 3570) and revd on other grounds, remanded (2000, CA7 Ill) 222 F3d 323, cert den (2001) 531 US 1132, 148 L Ed 2d 802, 121 S Ct 896 and cert den (2001) 531 US 1132, 148 L Ed 2d 802, 121 S Ct 896 and request den, remanded (2001, WD Wis) 2001 US Dist LEXIS 22580.    State of Connecticut elected to engage in regulations under Telecommunications Act of 1996, pursuant to 47 USCS § 252, after it received proper notice that doing so would subject it to suit, when state defendants agreed to review interconnection agreement; therefore, court concluded that it had subject matter jurisdiction over plaintiffs' claim against state defendants. WorldCom, Inc. v Conn. Dep't of Pub. Util. Control (2002, DC Conn) 229 F Supp 2d 109. 18. Stay of commission decision    Statutory grant of authority in 47 USCS § 252(e)(6) authorizing federal courts to review and completely reverse decisions of state commission with respect to interconnection agreement between telecommunications carriers includes lesser power to stay commission decisions pending review. Wisconsin Bell, Inc. v TCG Milwaukee (1998, WD Wis) 27 F Supp 2d 1145. 19. Miscellaneous    State public service commission is denied dismissal of suit by competitor seeking interconnection agreement with incumbent local exchange carrier, where competitor alleges it was not given opportunity to be heard with respect to interconnection and unbundled network rates commission adopted pursuant to incumbent's costs studies, because 47 USCS § 252 is not unconstitutional, and viable claim is stated that commission's failure to provide hearing-deprived competitor of due process of law under § 252. MCI Telcoms. Corp v BellSouth Telcoms. (1998, ED Ky) 9 F Supp 2d 766 (criticized in Bell Atlantic-Maryland, Inc. v MFS Intelenet, Inc. (1999, DC Md) 1999 US Dist LEXIS 16477).    Johnson Act (28 USCS § 1342) does not bar federal District Court from exercising jurisdiction over incumbent telephone local exchange carrier's challenge to state public service commission determinations in approving interconnection agreement under 47 USCS § 252(e)(6), because (1) jurisdiction is not based solely on diversity of citizenship or repugnance of order to Constitution, and (2) carrier lacks plain, speedy, and efficient remedy in state courts since they are barred from hearing this claim under § 252(e)(4). U.S. West Communs. v PSC (1998, DC Utah) 991 F Supp 1299 (criticized in Bell Atlantic-Maryland, Inc. v MFS Intelenet, Inc. (1999, DC Md) 1999 US Dist LEXIS 16477) and summary judgment gr, dismd (1999, DC Utah) 75 F Supp 2d 1284.    Incumbent local-exchange carrier stated cause of action under 47 USCS § 252 (e)(6) where it claimed that Public Service Commission of Maryland misinterpreted reciprocal compensation provisions of interconnection agreement and that enforcement of misinterpretation would effectively modify agreement in contravention of 47 USCS § 252(a)(1). Verizon Md., Inc. v RCN Telecom Servs. (2002, DC Md) 232 F Supp 2d 539.