Opinion
Civil Action No. 3:04-CV-84-JMH.
September 16, 2005
MEMORANDUM OPINION AND ORDER
In this action, BellSouth Telecommunications, Inc. ("BellSouth") seeks review of the following Kentucky Public Service Commission ("PSC" or "Commission") orders: (1) the PSC's September 29, 2004 Order granting the request of SouthEast Telephone, Inc. ("SouthEast") to adopt a single provision of the interconnection agreement between BellSouth and Cinergy Communications Company ("Cinergy"); and (2) the PSC's November 8, 2004 Order denying BellSouth's motion for reconsideration of the September 29, 2004 Order [Record No. 16]. The defendants, SouthEast and the PSC, responded [Record Nos. 19 20] and the plaintiff replied [Record No. 21].
Background
The Telecommunications Act ("the Act") places a duty on incumbent local exchange carriers ("ILECs"), like the plaintiff BellSouth Telecommunications, Inc. ("BellSouth"), that have traditionally provided local telephone services to an area, to make network elements and interconnection services available to new entrants into the market. New entrants, like the defendant SouthEast, are called competitive local exchange carriers ("CLECs"). 47 U.S.C. § 251. The network elements and services are obtained by CLECs through interconnection agreements that are subject to approval by the PSC, Id. § 252 (e), or CLECs may obtain the services by adopting another interconnection agreement between an ILEC and a CLEC that has been approved by the PSC. Id. § 252 (i).
In the case at hand, SouthEast and BellSouth entered into an interconnection agreement on October 9, 2001 ("SouthEast Agreement"). The SouthEast Agreement was approved by the PSC on November 6, 2001 and provides,
BellSouth shall make available, pursuant to 47 U.S.C. § 252 and the FCC rules and regulations regarding such availability, to SouthEast any interconnection, service, or network element provided under any other agreement filed and approved pursuant to 47 U.S.C. § 252, provided a minimum of six months remains on the terms of such Agreement. The Parties shall adopt all rates, terms and conditions concerning such other interconnection, service or network element and any other rates, terms and conditions that are legitimately related to or were negotiated in exchange for or in conjunction with the interconnection, service or network element being adopted.
(Pl.'s Compl., Ex. 1, SouthEast Agreement at ¶ 15.) As for amendments, the SouthEast Agreement provides,
No modification, amendment, supplement to, or waiver of the Agreement or any of its provisions shall be effective and binding upon the parties unless it is made in writing and duly signed by the Parties.
( Id. at ¶ 16.2.)
At issue in this case is the FCC's change in the rule implementing § 252(i) that provides CLECs the ability to adopt other interconnection agreements. The prior rule, known as the "pick-and-choose rule," permits CLECs to adopt any portion of an interconnection agreement among an ILEC and a CLEC, without being required to adhere to the rest of the provisions in that agreement. The rule has since been changed to the "all-or-nothing rule," wherein CLECs must adopt the entire agreement and can no longer pick the portions of an agreement they want and ignore the other provisions.
On June 8, 2004, SouthEast filed an adoption notice requesting to adopt the dispute resolution provision of BellSouth's agreement ("Cinergy Agreement) with another CLEC, Cinergy. The provision of the Cinergy Agreement that SouthEast noticed to adopt provides,
For issues over which the Commission does not have authority, the Parties may avail themselves of any available legal remedies in the appropriate forum. Furthermore, the Parties agree to carry on their respective obligations under this Agreement, while any dispute resolution is pending.
( Id., Ex. 2, SouthEast's Notice of Intent to Adopt at 2.) On June 22, 2004, BellSouth timely filed objections to the proposed adoption of the dispute resolution provision. On July 8, 2004, the all-or-nothing rule was adopted by the FCC and on July 13, 2004, the new rule was released. The new rule became effective on August 23, 2004, thirty days after publication in the Federal Register.
Procedural History and Issues on Review
On September 29, 2004, the PSC issued an order approving the adoption of the dispute resolution provision. Applying the pick-and-choose rule, the law in effect at the time SouthEast filed the adoption notice, the Commission granted the request. The Commission held that the "[d]ispute resolution procedures which SouthEast seeks are an integral term and condition of a contract and directly relate to the provision of interconnection, service, or network elements." ( Id., Ex. 4, Sept. 29, 2004 PSC Order at 2.)
On November 8, 2004, the PSC issued an order denying BellSouth's petition for rehearing. BellSouth argued that the PSC should have utilized the all-or-nothing rule that was released on July 13, 2004, and effective on August 23, 2004, both prior to the PSC decision on September 29, 2004. The PSC held that "according to the Commission's longstanding practice, SouthEast's adoption notice would have been granted by Order within a few days of receipt by the Commission but for BellSouth's objection. As SouthEast contends, carriers may delay proceedings when matters are pending in order to allow the changed laws to be applied to pending cases." ( Id., Ex. 5, Nov. 8, 2004 PSC Order at 3.) The Commission further held that it would be unjust to apply the new rule to an adoption notice that was released "a month after the Commission would ordinarily have entered its Order, under the circumstances of this particular case." ( Id.)
On appeal, BellSouth argues three grounds for reversal of the PSC orders. First, BellSouth argues that the PSC should have used the all-or-nothing rule to deny the request for adoption of the dispute resolution provision. Second, BellSouth argues that even under the pick-and-choose rule, the dispute resolution provision was not a proper provision to be adopted pursuant to § 252(i). Finally, BellSouth argues that adoption did not comply with the SouthEast Agreement that requires any amendment to be in writing and approved by both of the parties.
Jurisdiction and Standard of Review
The Telecommunications Act provides, "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 U.S.C. § 252(e)(6). Accordingly, this Court has jurisdiction over BellSouth's appeal of the PSC orders approving adoption of the dispute resolution provision.
Along with the majority of other circuits, the Sixth Circuit utilizes a two-tiered review procedure when reviewing a ruling of a state administrative body. The bifurcated standard is employed because arriving at a decision in these disputes involves an understanding of the interplay between federal and state law.
Under the two-tiered approach, the Court reviews whether the PSC's orders comply with the requirements of the Telecommunications Act de novo. The Court also reviews the Commission's interpretation of the Act de novo, according little deference to the Commission's interpretation. Mich. Bell Tel. Co. v. MCIMetro Access Transmission Servs., Inc., 323 F.3d 348, 354 (6th Cir. 2003) (hereinafter, " MCIMetro"); Mich. Bell Tel. Co. v. Strand, 305 F.3d 580, 586 (6th Cir. 2002) (hereinafter, " Strand"). "If no illegality is uncovered during such a review, the question of whether the state commission correctly interpreted the challenged interconnection agreement must then be analyzed, but under the more deferential arbitrary-and-capricious standard of review usually accorded state administrative bodies' assessments of state law principles." Mich. Bell Tel. Co. v. MFS Intelenet of Mich., Inc., 339 F.3d 428, 433 (6th Cir. 2003) (hereinafter, "MFS Intelenet"); accord Sw. Bell Tel. Co. v. Pub. Util. Comm'n of Tex., 208 F.3d 475, 482 (5th Cir. 2000) ; GTE S., Inc. v. Morrison, 199 F.3d 733, 745 (4th Cir. 1999) ; U.S.W. Communc'ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1117 (9th Cir. 1999).
"The arbitrary and capricious standard is the most deferential standard of judicial review of agency action, upholding those outcomes supported by a reasoned explanation, based upon the evidence in the record as a whole." MCIMetro, 323 F.3d at 354. Under this standard, the Court will uphold a decision "`if it is the result of a deliberate principled reasoning process, and if it is supported by substantial evidence.'" Id. (quoting Killian v. Healthsource Provident Adm'rs, Inc., 152 F.3d 514, 520 (6th Cir. 1998)). Thus, under this standard, absent clear error or failure to consider factors that are relevant to the analysis, the PSC orders will be upheld. Id.
In the case at hand, whether the Commission used the correct regulation and the Commission's interpretation of whether dispute resolution provisions are subject to adoption pursuant to the language of the Act are both reviewed de novo. MCIMetro, 323 F.3d at 354 (holding that state commissions' interpretations of the Act are reviewed de novo).
Analysis
A. Mootness
In the responses, the defendants both argue that the plaintiff's appeal is moot because after the PSC rendered the orders at issue in this matter, BellSouth and SouthEast have been negotiating a new agreement. BellSouth counters that while the parties are negotiating a new agreement, the parties are still governed by the current interconnection agreement whose adopted dispute resolution provision is at issue on the appeal.
Article III of the United States Constitution vests the Court with jurisdiction to address actual "cases and controversies." U.S. Const. art. III, §§ 2. The Court, thus, lacks authority to render "a decision that does not affect the rights of the litigants." Coal. for Gov't Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004). "The test for mootness is whether the relief sought would, if granted, make a difference to the legal interests of the parties." McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc) (internal quotations and citations omitted); Bowman v. Corr. Corp. of Am., 350 F.3d 537, 550 (6th Cir. 2003). "An appeal becomes moot if events have taken place during the pendency of the appeal that make it `impossible for the court to grant any effectual relief whatever.'" Fed. Prison Indus., Inc., 365 F.3d at 458 (quoting Church of Scientology v. United States, 506 U.S. 9, 12 (1992)).
In the case at hand, the defendants have not shown that the appeal is moot merely because the parties are negotiating a new agreement. If the parties had, in fact, completed negotiations and agreed to be bound by a new agreement, then, the case perhaps would be moot. As it stands, because the parties are merely in the negotiations phase, the parties are still bound by the interconnection agreement whose adopted dispute resolution provision is the subject of this appeal. Accordingly, the matter is not moot because if the Court grants BellSouth relief and reverses the Commission's orders, then the dispute resolution provision would no longer be in the current interconnection agreement.
B. Applicable Regulation
BellSouth's primary argument is that the PSC did not use the correct regulation in approving SouthEast's adoption notice. The initial September 29, 2004 Order granting SouthEast's request to adopt the dispute resolution provision held, without analysis, that the applicable regulation was the pick-and-choose rule, the rule in effect at the time SouthEast filed its notice, not the all-or-nothing rule, the rule in effect at the time of the PSC decision. The November 8, 2004 Order denied BellSouth's motion to reconsider and held,
[A]ccording to the Commission's longstanding practice, SouthEast's adoption notice would have been granted by Order within a few days of receipt by the Commission but for BellSouth's objection. As SouthEast contends, carriers may delay proceedings when matters are pending in order to allow the changed laws to be applied to pending cases. To apply a change of interpretation a month after the Commission would ordinarily have entered its Order, under the circumstances of this particular case, is unjust.
(Pl.'s Compl., E. 5, PSC Order Nov. 8, 2004 at 3.) BellSouth argues that applying the regulation in effect at the time of decision is not retroactive application, but instead is prospective application of the rule in effect at the time of decision.
BellSouth also argues that the Commission broke with longstanding practice by not applying a new rule in the course of a Commission proceeding. BellSouth has not, however, shown the Court that the Commission was breaking with long-standing practice through the cases cited in support of this proposition.
For instance, none of the cases cited in support discuss a new rule that became effective during the pendency of a Commission hearing. Nat'l-Southwire Aluminum Co. v. Big Rivers Elec. Corp., 785 S.W.2d 503, 516 (Ky.Ct.App. 1990) (PSC fashioned a new variable rate design); S. Cent. Bell Tel. Co. V. PSC, 702 S.W.2d 447, 451 (Ky.Ct.App. 1985) (stating general principle that an agency should not depart from its previous interpretations except for cogent reasons and holding that PSC's refusal to adopt the appellant's adjustment of test-year income procedure was not in error); Ky. CATV Ass'n v. Voltz, 675 S.W.2d 393, 396-97 (Ky.Ct.App. 1983) (upholding the Commission's assertion of jurisdiction over cable television's use of utility poles, despite the Commission's failure to exercise jurisdiction for thirty years).
The Supreme Court set forth the test for retroactivity in Landgraf v. USI Film Products, 511 U.S. 244 (1994), wherein the Court held,
When a case implicates a federal statute enacted after the events in suit, the court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, of course, there is no need to resort to judicial default rules. When, however, the statute contains no such express command, the court must determine whether the new statute would have retroactive effect, i.e., whether it would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed. If the statute would operate retroactively, our traditional presumption teaches that it does not govern absent clear congressional intent favoring such a result. Id. at 280. The Landgraf test applies to determine whether an administrative rule operates retroactively. Ponnapula v. Ashcroft, 373 F.3d 480, 490 (3d Cir. 2004) (holding that "in the absence of a clear command, a consistent line of cases establishes that `congressional enactments and administrative rules will not be construed to have retroactive effect'") (quoting Landgraf, 511 U.S. at 272).
The Supreme Court recently discussed the Landgraf test in Republic of Austria v. Altman, 541 U.S. 677 (2004). In Altman, the Court held that the Foreign Sovereign Immunities Act ("FSIA") applies retroactively. The Court held that the Landgraf test was inapplicable to determine whether FISA applied retroactively because of the nature of foreign sovereign immunity. Id. 692-96. The Court did not hold, however, that the Landgraf test was no longer appropriate in all situations. In fact, the Court held that " Landgraf's anti-retroactivity presumption, while not strictly confined to cases involving private rights, is most helpful in that context." Id. at 696. The instant case clearly involves private parties.
The Supreme Court recently discussed the Landgraf test in Republic of Austria v. Altman, 541 U.S. 677 (2004). In Altman, the Court held that the Foreign Sovereign Immunities Act ("FSIA") applies retroactively. The Court held that the Landgraf test was inapplicable to determine whether FISA applied retroactively because of the nature of foreign sovereign immunity. Id. 692-96. The Court did not hold, however, that the Landgraf test was no longer appropriate in all situations. In fact, the Court held that " Landgraf's anti-retroactivity presumption, while not strictly confined to cases involving private rights, is most helpful in that context." Id. at 696. The instant case clearly involves private parties.
The first inquiry, thus, is whether the new rule specifically sets forth its temporal reach. Bejjani v. INS, 271 F.3d 670, 677 (6th Cir. 2001). The text of the all-or-nothing rule does not set forth any express indication of the rule's retroactivity.
The all-or-nothing rule provides,
(a) An incumbent LEC shall make available without unreasonable delay to any requesting telecommunications carrier any agreement in its entirety to which the incumbent LEC is a party that is approved by a state commission pursuant to section 252 of the Act, upon the same rates, terms, and conditions as those provided in the agreement. An incumbent LEC may not limit the availability of any agreement only to those requesting carriers serving a comparable class of subscribers or providing the same service (i.e., local, access, or interexchange) as the original party to the agreement.
(b) The obligations of paragraph (a) of this section shall not apply where the incumbent LEC proves to the state commission that:
(1) The costs of providing a particular agreement to the requesting telecommunications carrier are greater than the costs of providing it to the telecommunications carrier that originally negotiated the agreement, or
(2) The provision of a particular agreement to the requesting carrier is not technically feasible.
(c) Individual agreements shall remain available for use by telecommunications carriers pursuant to this section for a reasonable period of time after the approved agreement is available for public inspection under section 252(h) of the Act.
2004 CFR § 51.809 (emphasis added).
The next inquiry is determining whether the rule has a retroactive effect "by impairing a vested right, creating a new obligation, imposing a new duty, or attaching a new disability." Id. The Court finds that the all-or-nothing rule has a retroactive effect because it impairs a vested right.
For instance, the Act provides that an ILEC " shall make available any interconnection, service, or network element provided 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." 47 § U.S.C. 252(i) (emphasis added). The pick-and-choose rule similarly provides that an ILEC " shall make available without unreasonable delay to any requesting telecommunications carrier any individual interconnection, service, or network element arrangement . . . which it is a party." 2004 CFR § 51.809 (emphasis added). The mandatory language "shall" supports SouthEast's argument that the right to adoption was vested prior to the effective date of the all-or-nothing rule.
BellSouth argues that the language in SouthEast's adoption notice requesting that the amendment be "effective as of the date of the [PSC] Order" which was after the effective date of the all-or-nothing rule, proves that the rule operates prospectively, instead of retroactively. On the contrary, although the adoption would not be effective until the PSC issued an order approving the adoption, the statutory right to adoption occurred when SouthEast filed notice, prior to the new rule.
BellSouth similarly argues that the SouthEast Agreement provides that an amendment is not effective until both parties sign the amendment. The Court finds this argument is another way of asserting that the SouthEast Agreement precluded the amendment because SouthEast did not obtain BellSouth's consent in writing. As discussed in Section D, the Commission did not reach this issue and, thus, this issue is not appropriate for the Court to review.
Citing a First Circuit case, Pine Tree Medical Associates v. Secretary of Health and Human Services, 127 F.3d 118 (1st Cir. 1997), BellSouth argues that merely filing the notice of adoption does not create a completed transaction and, consequently, the all-or-nothing rule does not operate retroactively. In Pine Tree, the court held that the Secretary of Health and Human Services could use guidelines that were updated after the service provider filed the application for a low-income population to have "medically under-served population" status. Analyzing the case pursuant to Landgraf, the First Circuit held that the new guidelines were not considered a "completed transaction" in which parties could expect stability of the law. Further, the court held that there was no "right" to use the previous guidelines. Id. at 121-22.
Pine Tree is distinguished, however, because it involves applying for a prospective benefit, instead of notifying an agency of a pre-existing right to adopt, which is the case in the matter at hand. The Court likewise does not find the plaintiff's remaining out of circuit cases persuasive because they all involve pricing determinations used for the approval of initial interconnection agreements. Pricing determinations clearly involve prospective relief, as opposed to "the adoption of an existing and currently effective contract term." (Pl.'s Compl., Ex. 5, November 8, 2004 Order at 2.)
For example, the plaintiff cited US West Communications, Inc. v. Jennings, 304 F.3d 950 (9th Cir. 2002), that held newly reinstated FCC regulations concerning pricing determinations had to be considered when a case was pending before the court in challenging an initial interconnection agreement. Id. at 958. The court, analyzing the case under Landgraf, found: 1) that there was "any vested right to methods contrary to those mandated by the FCC's reinstated rules"; 2) that prospective price determinations did not alter completed transactions; and 3) that there was ample notice of the then-stayed FCC rules prior to arbitration on the interconnection agreement. Id. at 957. The court also found that the same reasoning applied to newly promulgated regulations because interconnection agreements govern the future relationship of the parties and do not impose new obligations or duties with respect to past transactions. Id. at 958.
The plaintiff also cited Morrison, 199 F.3d at 740, which held that it was not improper to use reinstated FCC pricing rules to interconnection agreements on appeal that were approved during a time when the FCC pricing rules were erroneously stayed because: 1) there was no vested right to an historical rate under the Act; 2) price determinations are future obligations, not new duties with respect to past transactions; and 3) there were no unsettled expectations because the defendant was on notice that the Supreme Court may reinstate the rules. Plaintiff cited Bell Atl. Tel. Cos. v. FCC, 79 F.3d 1195, 1207 (D.C. Cir. 1996), that held a new regulation requiring carriers to adjust the previous year's earnings solely to determine the next year's price caps was not retroactive application of a new rule because it merely used past information to decide future liability.
See also Ind. Bell Tel. Co. v. McCarty, 362 F.3d 378, 394 (7th Cir. 2004) (citing Jennings and holding that newly reinstated FCC regulations concerning unbundling requirements must be used for pending cases seeking approval of interconnection agreements).
Because the Court finds that application of the all-or-nothing rule to the case at hand would have a retroactive effect, the presumption against retroactivity applies. Accordingly, unless there is clear congressional intent that the law should be applied retroactively, the new regulation will not be applied to the case at hand. The Court finds that there is no clear congressional intent to apply the law retroactively. The FCC Order Adopting the All-or-Nothing Rule provides,
We also clarify that in order to allow this regime to have the broadest possible ability to facilitate compromise, the new all-or-nothing rule will apply to all effective interconnection agreements, including those approved and in effect before the date the new rule goes into effect. As of the effective date of the new rule, the pick-and-choose rule will no longer apply to any interconnection agreement.Review of the Section 251 Unbundling Obligations of Incumbent Local Exchange Carriers, CC Docket No. 01-338, Second Report and Order, at ¶ 10 (July 13, 2004) (hereinafter, "FCC Order Adopting All-or-Nothing Rule"). The Supreme Court has held that merely mentioning the effective date of the rule is insufficient to show clear congressional intent to apply the rule retroactively. Landgraf, 511 U.S. at 257 ("A statement that a statute will become effective on a certain date does not even arguably suggest that it has any application to conduct that occurred at an earlier date.") In Martin v. Hadix, 527 U.S. 343, 354 (1999), the Supreme Court noted that the following language would provide congressional direction to apply a new fees statute retroactively, "No award entered after the effective date of this Act shall be based on an hourly rate greater than the ceiling rate." In contrast, the language quoted above does not speak to the judicial process like the language "award entered." Instead, the language of the FCC Order merely states that the new rule applies after the effective date to all agreements, not just those agreements initially approved after the effective date.
Therefore, because the presumption of retroactivity has not been rebutted by clear congressional intent to apply the rule retroactively, the PSC did not err in refusing to apply the all-or-nothing rule to SouthEast's adoption notice that was filed prior to the effective date of the new rule.
C. Analysis Under Pick-and-Choose Rule
In the alternative, BellSouth argues that under the pick-and-choose rule, the dispute resolution provision was inappropriate for adoption because the Act limits adoption to those provisions involving interconnection, service, or network elements. For instance, the Act provides, " 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." 47 U.S.C. § 252(i) (emphasis added). BellSouth asserts that the dispute resolution provision is not an "interconnection, service, or network element" and, as such, is not an adoptable provision.
The PSC held that adoption was appropriate because dispute resolution provisions "are an integral term and condition of a contract and directly relate to the provision of interconnection, service and network elements." (Pl.'s Compl., September 29, 2004 PSC Order at 2.) The Court agrees.
The text of the Act provides for adoption of "terms and conditions" under which ILECs provide interconnection, service, or network. As the PSC held, dispute resolution provisions are integral terms and conditions under which ILECS provide such services. For instance, the FCC has held that agreements "addressing dispute resolution provisions relating to the obligations set forth in sections 251(b) and (c) are appropriately deemed interconnection agreements. The purpose of such clauses is to quickly and effectively resolve disputes regarding section 251(b) and (c) obligations." The FCC's inclusion of agreements concerning only dispute resolution as "interconnection agreements" that must be approved by state commissions supports the importance of these provisions to providing interconnection services. The FCC further held, "The purpose of such clauses is to quickly and effectively resolve disputes regarding section 251(b) and (c) obligations. The means of doing so must be offered and provided on a nondiscriminatory basis if Congress' requirement that incumbent LECs behave in a nondiscriminatory manner is to have any meaning." Id.
BellSouth also argues that the dispute resolution provision can not be adopted under the "terms and conditions" portion of the Act because the language "terms and conditions" refers back to "terms and conditions" that are provided for the particular interconnection, service, or network element. BellSouth's interpretation strains the statutory language of the Act. In the Cinergy Agreement, BellSouth provides interconnection, service, or network elements to Cinergy under various terms and conditions. Under the SouthEast Agreement, BellSouth similarly provides interconnection, service, or network elements to SouthEast under various terms and conditions. SouthEast merely seeks to adopt a term or condition under which BellSouth offers those services, etc., to Cinergy, which includes the dispute resolution provision.
BellSouth also argues that the pursuant to the pick-and-choose rule, the FCC provides ILECs the ability to require CLECs to adopt all terms that are "legitimately related" to the term that is adopted. (Pl.'s Br. at 13) (citing AT T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 738 (1999)). BellSouth asserts that if the Court accepts the Commission's holding that any integral term, like a dispute resolution provision, may be adopted by SouthEast, then BellSouth can force the remainder of the Cinergy Agreement to be adopted because almost all provisions of the Agreement are "legitimately related" to the dispute resolution provision. However, it is hard to understand how every provision in an interconnection agreement, including pricing, length of service, among others, would be "legitimately related" to the dispute resolution provision. Therefore, the Commission did not err in approving the adoption of the dispute resolution provision from the Cinergy Agreement.
D. The Interconnection Agreement Issues
Finally, BellSouth argues that adoption was in contravention of the SouthEast Agreement's requirement that all amendments be in writing and approved by the parties. Because the Commission did not reach this issue in the orders on review, it would be inappropriate for the Court to interpret the parties' agreement in the first instance. 47 U.S.C. § 252(e)(6) (providing authority for district courts to review "a determination" of the state commission pursuant to § 252); MFS Intelenet, 339 F.3d at 431 (accord); (Pl.'s Br. at 7) (stating that "the Commission never addressed below BellSouth's interpretation of the interconnection agreement and its requirement that all amendments be agreed to in writing by the parties").
Conclusion
Accordingly, and for the foregoing reasons, IT IS ORDERED that the orders of the PSC be, and the same hereby are, AFFIRMED and that this action be REMANDED to the PSC to determine whether the SouthEast Agreement precludes adoption.