Federal Communications Commission Office Of General Counsel ? Litigation Division 445 12th St. S.W. ? Washington, D.C. 20554 TEL: (202) 418-1740 ? FAX: (202) 418-2819 November 4, 2014 Marcia M. Waldron, Clerk, United States Court of Appeals for the Third Circuit 21400 United States Courthouse 601 Market Street Philadelphia, PA 119106-1790 Re: AT&T Corp., et al. v. Core Communications Inc., et al., Case Nos. 14-1499 & 14-1664 (oral argument scheduled for November 19, 2014) Dear Ms. Waldron: By letter dated October 23, 2014, the Court invited the Federal Communications Commission (“FCC”), “if [it] wishes to respond,” to file a brief as amicus curiae on the following question: In the absence of an interconnection agreement, does the Pennsylvania Public Utilities Commission have jurisdiction to hear a dispute over com- pensation due one competitive local exchange carrier for the termination of indirectly exchanged ISP-bound traffic originating with another com- petitive local exchange carrier? Although we would like to assist the Court – and have done so on several occasions in recent years in response to other requests for our participation as amicus curiae1 – for the reasons discussed below, at this time we are unable to address the question that the Court poses here. First, as the Court notes, the jurisdictional question quoted above is “in essential form” the same question that the Ninth Circuit previously posed to the FCC in AT&T Commc’ns of Cal., Inc. v.Pac-West Telecomm, Inc., 651 F.3d 980 (9th Cir. 2011) (“AT&T v. Pac-West”). See Amicus Brief for the Federal Communications Commission, AT&T v. Pac-West, at 14 (filed Feb. 2, 2011) (“FCC Amicus Br.”) (identifying essentially identical Ninth Circuit request) (JA 386). Although FCC litigation counsel in AT&T v. Pac-West were able to address another posed question that is not in dispute here, FCC counsel informed the Ninth Circuit that “[t]he FCC to date has not directly spoken … in its rules and orders” to the specific jurisdictional question 1 See, e.g., Brief for Amicus Curiae Federal Communications Commission, Verizon Pennsylvania, et al. v. Pennsylvania Pub. Util. Comm’n, Third Circuit No. 11-2712 (filed April 13, 2012); Brief for Amicus Curiae Federal Communications Commission, Paetec Communications, Inc., et al. v. MCI Communications Services, Inc., Third Circuit Nos. 11-2268 (consolidated with 11-2568) & 11-1204 (consolidated with 11-2569) (filed March 14, 2012). Case: 14-1499 Document: 003111784505 Page: 1 Date Filed: 11/04/2014 identified above. FCC Amicus Br. at 29 (JA 401). Accordingly, the agency’s amicus brief “d[id] not take a position on th[at] issue.” Id. We are aware of no intervening action by the FCC in the three-and-a-half years since our AT&T v. Pac-West brief was filed that would enable the agency’s litigation counsel to speak authoritatively to that issue now. Second, we cannot address the posed question for the additional reason that precisely the same question is now pending before the FCC in an administrative proceeding commenced by the appellant in this litigation. Specifically, on April 30, 2014, the Pennsylvania Public Utility Commission (“Pa. PUC”) filed a petition for declaratory ruling with the FCC seeking clarification “whether the Pa. PUC can adjudicate intercarrier compensation disputes when they arise between … [CLECs] outside Sections 251 and 252, 47 U.S.C. § 251 and 252, when they involve the exchange of local dial-up Internet traffic, and when the Pa. PUC decision properly enforces the ISP Remand Order and is consistent with [FCC] rules.” Petition for Declaratory Order of the Pennsylvania Public Utility Commission, WC Docket No. 14-70, at 1 (filed April 30, 2014) (available at http://apps.fcc.gov/ecfs/document/view?id=7521124305). The Pa. PUC asked the FCC to find that “the Pa. PUC has jurisdiction to adjudicate such dispute so long as the result is consistent with the ISP Remand Order and applicable law.” Id.; see also id. at 24 (“The Pa. PUC seeks definitive clarification that it continues to have jurisdiction to apply federal law and [FCC]-developed rates as part of its decisions to resolve such disputes, subject to federal appeal.”) (emphasis in original). The formal public comment cycle on that petition closed July 30, 2014,2 and the agency has not yet completed action on the petition. See Public Notice, DA 14-674 (rel. May 16, 2014) (available at https://apps.fcc.gov/edocs public/attachmatch/DA-14- 674A1_Rcd.pdf). We believe it would be inappropriate for FCC litigation counsel to prejudge the agency’s ultimate disposition of the question in an amicus brief. In sum, although we would like to assist the Court in this matter, regrettably, under current circumstances we are unable to do so. Respectfully submitted, /s/ Laurence N. Bourne Jonathan B. Sallet General Counsel David M. Gossett Acting Deputy General Counsel Richard K. Welch Deputy Associate General Counsel Laurence N. Bourne Counsel 2 Both appellees and the amicus in this litigation filed comments in response to the petition (which are available at http://apps.fcc.gov/ecfs/proceeding/view?z=26vmm&name=14-70). Case: 14-1499 Document: 003111784505 Page: 2 Date Filed: 11/04/2014 14-1499 et al. IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT AT&T CORP., ET AL. ) ) v. ) Nos. 14-1499/14-1664 ) CORE COMMUNICATIONS INC., ET AL., ) CERTIFICATE OF SERVICE I, Laurence N. Bourne, hereby certify that on November 4, 2014, I electronically filed the foregoing Letter Brief with the Clerk of the Court for the United States Court of Appeals for the Third Circuit by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Martin C. Bryce, Jr., Esq. Paul J. Koob, Esq. Ballard Spahr 1735 Market Street 51st Floor Philadelphia, PA 19103 Counsel for: AT&T Corp.et al. Christopher S. Comstock, Esq. Kara Gibney, Esq. Theodore A. Livingston, Esq. Mayer Brown 71 South Wacker Drive Chicago, IL 60606 Counsel for: AT&T Corp.et al. Bohdan R. Pankiw, Esq. Colin W. Scott, Esq. Kathryn G. Sophy, Esq. Shaun A. Sparks Jospeh K. Witmer, Esq. Pennsylvania Public Utility Commission 3rd Floor West 400 North Street Keystone Building Harrisburg, PA 17120 Counsel for: Pennsylvania P.U.C. Mark D. Bradshaw, Esq. Stevens & Lee 17 North Second Street 16th Floor Harrisburg, PA 17101 Counsel for: Core Communications, Inc. Case: 14-1499 Document: 003111784505 Page: 3 Date Filed: 11/04/2014 Christopher F. Van de Verg, Esq. CoreTel Communications Inc. 209 West Street Suite 302 Annapolis, MD 21401 Counsel for: Core Communications, Inc. Scott H. Angstreich, Esq. Kellogg, Huber, Hansen, Todd, Evans & Figel 1615 M Street, N.W. Suite 400 Washington, D.C. 20036 Counsel for: Verizon /s/ Laurence N. Bourne Case: 14-1499 Document: 003111784505 Page: 4 Date Filed: 11/04/2014