No. 00-1531 and 00-1711 

In the Supreme Court of the United States 

VERIZON MARYLAND INC., PETITIONER 

v. 

PUBLIC SERVICE COMMISSION OF MARYLAND, ET AL. 

UNITED STATES OF AMERICA, PETITIONER 

v. 

PUBLIC SERVICE COMMISSION OF MARYLAND, ET AL. 

ON WRITS OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE UNITED STATES 

JOHN A. ROGOVIN 

Deputy General Counsel 
Federal Communications 

Commission 
Washington, D.C. 20554 
THEODORE B. OLSON 
Solicitor General 

Counsel of Record 

GREGORY G. KATSAS 

Acting Assistant Attorney 

General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

BARBARA MCDOWELL 

Assistant to the Solicitor 

General 

MARK B. STERN 
CHARLES W. SCARBOROUGH 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Whether a federal district court has subject-matter 
jurisdiction under 28 U.S.C. 1331 to determine whether 
a state public utility commission’s order interpreting or 
enforcing an interconnection agreement violates the 
Telecommunications Act of 1996. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Constitutional and statutory provisions involved ................... 
2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
13 

Argument: 

Federal district courts have jurisdiction under 

28 U.S.C. 1331 to adjudicate suits “arising under the 

* * * laws * * * of the United States” to chal- 
lenge state commission orders interpreting or enfor- 
ing interconnection agreements ......................................... 

15 

Conclusion ....................................................................................... 26 

TABLE OF AUTHORITIES 

Cases: 

AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366 

(1999) ................................................................................ 

2, 23, 26 

Asarco Inc. v. Kadish, 490 U.S. 605 (1989) ....................... 

25 

Bell Atlantic Tel. Cos. v. FCC, 206 F.3d 1 (D.C. Cir. 

2000) ......................................................................................... 19 

Blatchford v. Native Vill. of Noatak, 501 U.S. 775 

(1991) ........................................................................................ 25 

City of Chicago v. International Coll. of Surgeons, 

522 U.S. 156 (1997) ................................................................. 

25 

District of Columbia Court of Appeals v. Feldman, 

460 U.S. 462 (1983) ................................................................. 

25 

GTE North, Inc. v. Strand, 209 F.3d 909,(6th Cir.), 

cert. denied, 531 U.S. 957 (2000) ......................................... 

24 

Implementation of the Local Competition Provisions 

in the Telecommunications Act of 1996, In re, 

14 F.C.C.R. 3689 (1999), vacated and remanded, 

Bell Atlantic Tel. Cos. v. FCC, 206 F.3d 1 (D.C. 

Cir. 2000) ............................................................................... 18-19 

(III) 

IV 

Cases—Continued: Page 

Lawrence County v. Lead-Deadwood Sch. Dist. 

No. 40-1, 469 U.S. 256 (1985) ............................................... 

18 

MCI Telecomms. Corp. v. Illinois Bell Tel. Co., 

222 F.3d 323 (7th Cir. 2000), cert. denied, 121 

S. Ct. 896 (2001) ...................................................................... 

16 

McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 

479 (1991) ................................................................................. 

21 

Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 

804 (1986) ............................................................................. 

12, 20 

Russello v. United States, 464 U.S. 16 (1983) ................... 

22 

Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) ........... 

25 

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) ........ 

13, 18 

Southwestern Bell Tel. Co. v. Brooks Fiber Commu- 
nications of Okla., Inc., 235 F.3d 493 (10th Cir. 

2000) ......................................................................................... 16 

Southwestern Bell Tel. Co. v. Connect Communica- 
tions Corp., 225 F.3d 942 (8th Cir. 2000) .......................... 

16 

Southwestern Bell Tel. Co. v. Public Util. Comm’n, 

208 F.3d 475 (5th Cir. 2000) ................................................. 

16 

United States v. AT&T Co., 552 F. Supp. 131 

(D.D.C. 1982), aff ’d, 460 U.S. 1001 (1983) .......................... 

3 

Young, Ex parte, 209 U.S. 123 (1908) ................................... 

8 

Your Home Visiting Nurse Servs., Inc. v. Shalala, 

525 U.S. 449 (1999) ................................................................. 

22 

Statutes, regulation and rule: 

U.S. Const. Amend. XI .................................................. 

2, 8, 9, 12 

Hobbs Administrative Orders Review Act, 28 U.S.C. 

2341 et seq. ............................................................................... 

7 

Medicare Act, 42 U.S.C. 405(h) ............................................... 

22 

Sherman Act, 15 U.S.C. 1 et seq. ............................................ 

3 

Telecommunications Act of 1996, Pub. L. No. 104-104, 

110 Stat. 56 .............................................................................. 

2 

Title I, 110 Stat. 61: 

47 U.S.C. 251 (Supp. V 1999) ..................................... 

4, 6 

47 U.S.C. 251(b)(5) (Supp. V 1999) ....................... 4, 7, 9 

V 

Statutes, regulation and rule—Continued: 
Page 

47 U.S.C. 251(c) (Supp. V 1999) ................................ 

5, 6 

47 U.S.C. 251(c)(2) (Supp. V 1999) ........................... 

4 

47 U.S.C. 251(c)(3) (Supp. V 1999) ........................... 

4 

47 U.S.C. 251(c)(4) (Supp. V 1999) ........................... 

5 

47 U.S.C. 251(d)(1) (Supp. V 1999) ........................... 

6 

47 U.S.C. 252 (Supp. V 1999) ................................. 

4, 5, 6, 

11, 12, 14, 16, 17, 21 
47 U.S.C. 252(a) (Supp. V 1999) ................................ 

16 

47 U.S.C. 252(b) (Supp. V 1999) ................................ 

5, 16 

47 U.S.C. 252(e)(1) (Supp. V 1999) ........................... 

5, 6 

47 U.S.C. 252(e)(2)(A) (Supp. V 1999) ..................... 

6 

47 U.S.C. 252(e)(2)(B) (Supp. V 1999) ..................... 

6 

47 U.S.C. 252(e)(4) (Supp. V 1999) .................. 

7, 14, 21 

47 U.S.C. 252(e)(5) (Supp. V 1999) ........................... 

5 

47 U.S.C. 252(e)(6) (Supp. V 1999) ................... 

passim 

28 U.S.C. 1257 ............................................................................ 

25 

28 U.S.C. 1331 .................................................................... 

passim 

47 C.F.R. 51.701(a) (2000) ........................................................ 

7, 19 

Fed. R. Civ. P. 19 ...................................................................... 

9 

Miscellaneous: 

H.R. Rep. No. 204, 104th Cong., 1st Sess. Pt. 1 (1995) ....... 

3 

H.R. Conf. Rep. No. 458, 104th Cong., 2d Sess. (1996) ...... 2, 3 

In the Supreme Court of the United States 

No. 00-1531 

VERIZON MARYLAND INC., PETITIONER 

v. 

PUBLIC SERVICE COMMISSION OF MARYLAND, ET AL. 

No. 00-1711 

UNITED STATES OF AMERICA, PETITIONER 

v. 

PUBLIC SERVICE COMMISSION OF MARYLAND, ET AL. 

ON WRITS OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT 

BRIEF FOR THE UNITED STATES 

OPINIONS BELOW 

The opinion of the court of appeals (reproduced in the 
Appendix to Verizon Maryland’s petition for a writ of 
certiorari in No. 00-1531, [hereinafter Verizon Pet. 
App.] at 1a-72a) is reported at 240 F.3d 279. The opin- 
ion of the district court (Verizon Pet. App. 73a-90a) is 
unreported. The order of the Maryland Public Service 
Commission (Verizon Pet. App. 91a-111a) is unre- 
ported. 

JURISDICTION 

The judgment of the court of appeals was entered on 
February 14, 2001. Verizon Maryland filed a petition 

(1) 

2 

for a writ of certiorari on April 5, 2001, and the United 
States filed a petition for a writ of certiorari on May 15, 
2001. Both petitions were granted on June 25, 2001, 
limited to the second question presented in each 
petition. The jurisdiction of this Court rests on 28 
U.S.C. 1254(1). 

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED 

The Eleventh Amendment to the United States Con- 
stitution, the relevant portions of the Telecommuni- 
cations Act of 1996, the Federal Communications Com- 
mission’s implementing regulations, and 28 U.S.C. 1331 
are set forth at Verizon Pet. App. 112a-134a. Citations 
of the Act are of the 1999 Supplement to the United 
States Code. 

STATEMENT 

The Telecommunications Act of 1996 (1996 Act or 
Act), Pub. L. No. 104-104, 110 Stat. 56, effected a com- 
prehensive overhaul of telecommunications regulation 
designed to “open[] all telecommunications markets to 
competition.” H.R. Conf. Rep. No. 458, 104th Cong., 2d 
Sess. 113 (1996); see generally AT&T Corp. v. Iowa 
Utils. Bd., 525 U.S. 366 (1999). The 1996 Act estab- 
lishes procedures to encourage competition in local 
telecommunications markets, including the requirement 
that incumbent carriers enter into agreements with 
competitors concerning interconnection with, and 
access to elements of, the incumbent’s network. The 
Act authorizes state public utility commissions to 
assume certain regulatory authority respecting those 
agreements (commonly referred to as interconnection 
agreements). This case concerns whether the federal 
district courts have subject matter jurisdiction under 
28 U.S.C. 1331 to review state commission decisions 

3 

construing and enforcing interconnection agreements 
for compliance with federal law. 

1. For many years, most telephone service in the 
United States was provided by AT&T and its local- 
exchange affiliates, collectively known as the Bell Sys- 
tem. In 1974, the United States sued AT&T under the 
Sherman Act, 15 U.S.C. 1 et seq., alleging, among other 
things, that the Bell System had improperly used its 
monopoly power in local markets to impede competition 
in the long-distance market. See United States v. 
AT&T Co., 552 F. Supp. 131 (D.D.C. 1982), aff ’d, 460 
U.S. 1001 (1983). In 1982, AT&T entered into a consent 
decree in settlement of that suit that required AT&T to 
divest its local exchange operations. The newly inde- 
pendent Bell Operating Companies, together with ap- 
proximately 1,500 non-Bell carriers, continued to pro- 
vide monopoly local exchange service in their respec- 
tive service areas. What remained of AT&T continued 
to provide nationwide long-distance service, increas- 
ingly in competition with other long-distance carriers, 
such as MCI and Sprint. See H.R. Rep. No. 204, 104th 
Cong., 1st Sess. Pt. 1, at 48-50 (1995). 

a. In considering how to facilitate the entry of 
competitors into local telephone markets, Congress 
recognized that the economic barriers to entry into 
those markets would remain formidable even if the 
regulatory restrictions on competition were removed. 
H.R. Conf. Rep. No. 458, supra, at 113. It would be 
economically impracticable, at least with the current 
technology, for even the largest prospective competitor 
to duplicate an incumbent carrier’s entire local network 
—i.e., to create a new network of switches and a new 
infrastructure of loops connecting every house and 
business in a calling area to those switches and thus to 
one another. Moreover, without rights of access to the 

4 

existing network, a prospective competitor could not 
gradually enter the market through partial duplication 
of local exchange facilities; the competitor would win 
few customers if, for example, those customers could 
call only one another and not customers of the incum- 
bent’s separate (and already established) network. 

Congress addressed those concerns in Sections 251 
and 252 of the 1996 Act. It imposed various obligations 
on all local exchange carriers, incumbents and new 
entrants alike, including the obligations to provide 
number portability (so that a consumer may change 
carriers without changing telephone numbers), to allow 
competitors to have access to certain services (e.g., 
directory assistance) and facilities (e.g., poles, ducts, 
conduits, and rights-of-way), and “to establish recipro- 
cal compensation arrangements for the transport 
and termination of telecommunications.” 47 U.S.C. 
251(b)(5). The underlying dispute in this case concerns 
an arrangement to pay reciprocal compensation, which 
is a payment made by the carrier whose customer 
originates a call to the carrier whose facilities are used 
to complete the call. 

Congress also imposed on incumbent carriers the 
obligation to open their networks to new entrants in 
three distinct but complementary ways. First, new 
entrants are entitled to “interconnect” their networks 
with the incumbent’s existing network, and to do so at 
rates and on terms and conditions that are “just, rea- 
sonable, and nondiscriminatory.” 47 U.S.C. 251(c)(2). 
Second, new entrants are entitled to gain access to 
elements of an incumbent’s network “on an unbundled 
basis”—i.e., to lease individual network elements (loops, 
switching capability, etc.) at rates and on terms and 
conditions that are “just, reasonable, and nondis- 
criminatory.” 47 U.S.C. 251(c)(3). Third, new entrants 

5 

are entitled to buy an incumbent’s retail services “at 
wholesale rates” and to resell those services to end 
users. 47 U.S.C. 251(c)(4).1 

The 1996 Act requires incumbents to negotiate in 
good faith with new entrants on agreements regarding 
reciprocal compensation, interconnection, access to 
network elements, resale of services, and the other 
arrangements contemplated by the Act. 47 U.S.C. 
251(c), 252. The Act provides for binding arbitration if 
the parties cannot conclude an interconnection agree- 
ment through negotiation. 47 U.S.C. 252(b). 

The 1996 Act permits, but does not require, state 
public utility commissions to assume regulatory author- 
ity over interconnection agreements, set the terms and 
conditions for those agreements (subject to the stan- 
dards set forth in the Act and in regulations promul- 
gated by the Federal Communications Commission 
(FCC) pursuant to the Act), arbitrate disputes that 
arise in the negotiation of the agreements, and exercise 
review and enforcement authority. If a state com- 
mission elects not to assume such authority, the FCC 
will perform that role. 47 U.S.C. 252(e)(5). 

b. All interconnection agreements, whether arrived 
at through negotiation or arbitration, are subject to 
approval by the state commission or, if it declines that 
role, the FCC. 47 U.S.C. 252(e)(1) and (5). A negoti- 
ated agreement may be approved by the state com- 
mission (or the FCC) only if it does not “discriminate[] 
against a telecommunications carrier not a party to the 

1 The Court is currently considering a challenge to the 
methodology developed by the Federal Communications Com- 
mission (FCC) for establishing the rates that incumbents may 
charge new entrants for interconnection and access to network 
elements. See Verizon Communications, Inc. v. FCC, Nos. 00-511 
et al. (to be argued Oct. 10, 2001). 

6 

agreement” and is “consistent with the public interest, 
convenience, and necessity.” 47 U.S.C. 252(e)(2)(A). 

If the parties are unable to conclude an agreement 
through negotiations and proceed to arbitration, the 
state commission (or, if it declines that role, the FCC) 
will resolve any open issue. Such issues may concern 
the rates, terms, and conditions under which competi- 
tors will interconnect with or lease network elements 
from incumbents, as well as the charges that the 
incumbent and the new entrant will pay each other for 
transport and termination of calls. The 1996 Act sets 
forth standards for state commissions to follow in 
setting such rates; the state commissions are also 
required to follow FCC regulations issued pursuant to 
Section 251(d)(1). 47 U.S.C. 252(c). Once an agreement 
has been concluded through arbitration, the parties 
must submit it to the state commission (or, if it declines 
that role, the FCC) for approval. An arbitrated agree- 
ment may be approved only if it complies with Sections 
251 and 252 of the Act and applicable FCC regulations. 
47 U.S.C. 252(e)(1) and (2)(B). 

The 1996 Act provides for federal court “[r]eview of 
State commission actions” with respect to interconnec- 
tion agreements. 47 U.S.C. 252(e)(6) (title). The Act 
states, in relevant part: 

In any case in which a State commission makes a 
determination under this section [i.e., Section 252], 
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 of 
this title and this section. 

47 U.S.C. 252(e)(6). The Act divests state courts of 
“jurisdiction to review the action of a State commission 

7 

in approving or rejecting an agreement under this 
section.” 47 U.S.C. 252(e)(4). 

Where a state commission has elected not to assume 
regulatory authority under the 1996 Act and the FCC 
has acted in its place, the Act provides that the FCC 
proceeding and “any judicial review of the [FCC’s] 
actions shall be the exclusive remedies for a State 
commission’s failure to act.” 47 U.S.C. 252(e)(6). The 
FCC’s final orders with respect to interconnection 
agreements are reviewable, as are other final orders of 
the FCC, in the federal courts of appeals pursuant to 
the Hobbs Administrative Orders Review Act, 28 
U.S.C. 2341 et seq. 

2. The Maryland Public Service Commission 
(MPSC) has elected to exercise regulatory authority 
under the 1996 Act. The MPSC approved interconnec- 
tion agreements, which were arrived at through nego- 
tiations, between Bell Atlantic, the incumbent provider 
of local telecommunications service in Maryland (and a 
predecessor to Verizon Communications, Inc.), and 
prospective entrants into the local telecommunications 
market, including MCI WorldCom. As required under 
the Act and the FCC’s implementing regulations, those 
agreements provided for the payment of reciprocal 
compensation for “local” calls. See 47 U.S.C. 251(b)(5); 
47 C.F.R. 51.701(a) (2000). 

A dispute subsequently arose among the parties as to 
whether Bell Atlantic had an obligation under the 
agreements to pay reciprocal compensation for its 
customers’ calls to Internet service providers (ISPs) to 
gain access to the Internet. The MPSC exercised 
regulatory authority over the dispute. It issued a 
determination that such calls are “local” and ordered 
the payment of reciprocal compensation. 

8 

3. Bell Atlantic sought review of the MPSC’s deci- 
sion in the United States District Court of the District 
of Maryland, asserting that the MPSC’s decision was 
contrary to federal law, as reflected in a recent ruling of 
the FCC under the 1996 Act (see pp. 18-19, infra), and 
invoking the court’s jurisdiction under 47 U.S.C. 
252(e)(6) and 28 U.S.C. 1331. Bell Atlantic named as 
defendants the MPSC, the individual MPSC commis- 
sioners in their official capacities, and the competing 
carriers that are parties to the agreements. 

The MPSC and its commissioners moved to dismiss. 
They argued that federal district courts lack subject- 
matter jurisdiction to review decisions of state public 
utility commissions interpreting and enforcing a pre- 
viously approved interconnection agreement. They also 
argued that state commissions and their commissioners 
are immune from such suits under the Eleventh 
Amendment. The United States intervened to defend 
the constitutionality of the judicial review provisions of 
the 1996 Act. 

The district court dismissed the suit. The court con- 
cluded that the Eleventh Amendment barred suit 
against the MPSC and its individual members. Verizon 
Pet. App. 77a-84a. The court rejected the argument 
that the MPSC had waived its sovereign immunity by 
voluntarily electing to exercise regulatory authority 
under the 1996 Act. Id. at 77a-79a. The court also 
rejected the argument that the suit could proceed 
against the individual commissioners under the doctrine 
of Ex parte Young, 209 U.S. 123 (1908), which permits 
suits against state officers in their official capacities to 
enjoin ongoing violations of federal law. Verizon Pet. 
App. 79a-83a. The court then concluded that the MPSC 
was an indispensable party to the action under Rule 19 
of the Federal Rules of Civil Procedure, and thus that 

9 

the action had to be dismissed against the other 
defendants as well. Id. at 84a-86a. 

4. A divided panel of the United States Court of 
Appeals for the Fourth Circuit affirmed. The court 
held that state public utility commissions and their 
commissioners are immune from suit in federal court 
under the Eleventh Amendment. The court also held 
that the district courts lack subject-matter jurisdiction 
to review state commission decisions enforcing or inter- 
preting previously approved interconnection agree- 
ments. Verizon Pet. App. 1a-51a. 

First, the court held that the MPSC had not waived 
its sovereign immunity by electing to exercise regu- 
latory authority over interconnection agreements 
entered into pursuant to the 1996 Act. Verizon Pet. 
App. 14a-21a. The court accepted that “a State commis- 
sion that elects to make § 252 determinations must, of 
necessity, also be electing to have its determinations 
reviewed by a federal court under § 252(e)(6).” Id. at 
14a-15a. But the court declined to “infer from this 
consent to federal-court review a consent by a State 
commission itself to be made a party to that federal 
review.” Id. at 15a. The court noted that no provision 
of the Act expressly states that a state commission, by 
electing to regulate under the 1996 Act, “thereby 
agrees to be named as a party in federal court or * * * 
waives its Eleventh Amendment immunity.” Ibid. The 
court concluded that, absent such an “unmistakably 
clear and unequivocal” expression of Congress’s intent 
“to condition State utility commissions’ participation in 
the regulation of interconnection agreements on a 
waiver of sovereign immunity from private suit,” no 
such waiver could properly be inferred. Id. at 18a-19a. 

Second, the court held that the individual com- 
missioners could not be made parties to the action 

10 

under Ex parte Young. Verizon Pet. App. 21a-30a. The 
court focused its analysis on “the federal interests 
served by permitting [such] a federal suit.” Id. at 24a. 
The court reasoned that “[t]he federal interest fur- 
thered by the 1996 Act is to have § 252 determinations 
made by State commissions reviewed in federal court,” 
and not “to discipline individual State officials or to 
expose them to any liability.” Ibid. The court con- 
cluded that “this interest would not be frustrated if we 
were to preserve the Eleventh Amendment immunity 
of State officials with respect to such suits.” Id. at 24a- 
25a. 

In addition, the court expressed doubt that “Bell 
Atlantic’s action is designed to prevent an ongoing 
violation of federal law,” noting that federal law does 
not clearly prohibit the treatment of ISP-bound calls as 
“local” traffic. Verizon Pet. App. 25a-27a. The court 
suggested that, “in any suit against State commission- 
ers, it is more likely that State contract-law, rather 
than federal-law, violations would be redressed.” Id. at 
29a. 

The court also suggested that allowing Ex parte 
Young actions to challenge the decisions of state com- 
missions “would improperly expand the federal remedy 
selected by Congress.” Verizon Pet. App. 29a. The 
court construed the 1996 Act as reflecting Congress’s 
determination to limit federal court review to only 
those decisions of state commissions that involve the 
initial approval or rejection of interconnection agree- 
ments. Id. at 28a-29a. 

Third, the court held that federal district courts do 
not have jurisdiction under Section 252(e)(6) to review 
state commission decisions enforcing previously 
approved interconnection agreements, as distinguished 
from decisions approving or rejecting interconnection 

11 

agreements in the first instance. Verizon Pet. App. 
30a-47a. The court noted that Section 252(e)(6) pro- 
vides, by its terms, for review of state commission 
“determination[s] under this section [i.e., Section 252]” 
to ascertain whether those determinations “meet[] the 
requirements of section 251 and this section [i.e., 
Section 252].” Id. at 38a-39a. The court reasoned that 
“in the final analysis, the State commission determina- 
tions under § 252 involve only approval or rejection of 
such agreements.” Id. at 39a. The court concluded that 
other state commission determinations, including those 
enforcing interconnection agreements, are “left for 
review as specified by State law.” Ibid. 

Here, the court noted that the MPSC had approved 
the interconnection agreements between Bell Atlantic 
and MCI WorldCom and that “no party challenged that 
approval” in the district court. Verizon Pet. App. 40a. 
The court concluded that the MPSC’s subsequent deci- 
sion construing and enforcing that agreement “was not 
a § 252 determination and therefore was not reviewable 
in federal court by virtue of § 252(e)(6).” Id. at 43a. 

Finally, the court held that 28 U.S.C. 1331 likewise 
does not provide a basis for federal court jurisdiction to 
review state commission decisions enforcing inter- 
connection agreements. Verizon Pet. App. 47a-50a. 
The court construed Section 252(e)(6) as reflecting a 
congressional intent to confine federal court review to 
state commission decisions approving or rejecting inter- 
connection agreements. “[I]n light of the limited grant 
of federal jurisdiction in 47 U.S.C. § 252(e)(6),” the 
court observed, “the exercise of § 1331 general federal- 
question jurisdiction would ‘flout, or at least undermine, 
congressional intent.’ ” 

Id. at 48a (quoting Merrell Dow 
Pharm. Inc. v. Thompson, 478 U.S. 804 (1986)). 

12 

5. Judge King dissented from the court’s holdings on 
both the jurisdictional issue and the Eleventh Amend- 
ment issue, which he noted were in conflict with 
holdings of the Fifth, Sixth, Seventh, Eighth, and Tenth 
Circuits. Verizon Pet. App. 52a-53a (citing cases). On 
the jurisdictional issue, Judge King concluded that 
federal district courts have jurisdiction under Section 
252(e)(6) to review state commission decisions enforcing 
previously approved interconnection agreements. Veri- 
zon Pet. App. 54a-58a. He reasoned that “the power 
granted to states under § 252 to approve or reject 
interconnection agreements * * * necessarily includes 
the power to enforce the interconnection agreement.” 
Id. at 55a (citation and internal quotation marks 
omitted). He therefore concluded that state commis- 
sion decisions enforcing interconnection agreements are 
“determinations under [Section 252]” within the mean- 
ing of the grant of federal court jurisdiction in Section 
252(e)(6). Id. at 57a. He did not reach the question 
whether federal courts also, or alternatively, have 
jurisdiction under 28 U.S.C. 1331 to review such state 
commission decisions. 

On the Eleventh Amendment issue, Judge King con- 
cluded that the MPSC waived its sovereign immunity 
by electing to exercise regulatory authority under the 
1996 Act. Verizon Pet. App. 59a-67a. He disagreed 
with the court’s determination that Congress had not 
invited the States to waive their sovereign immunity 
with sufficient clarity. He viewed the judicial review 
provisions of the Act as “clearly show[ing] Congress’s 
intent to subject participating states to suits in federal 
court.” Id. at 60a-61a. 

In the alternative, Judge King concluded that the 
individual MPSC commissioners are amenable to suit 
under Ex parte Young. Verizon Pet. App. 67a-71a. He 

13 

reasoned that the 1996 Act does not impose an elabo- 
rate remedial scheme that would be improperly 
“expand[ed]” by allowing such review, id. at 69a-70a, 
and that Maryland has no “special sovereignty interest” 
in the regulation of those aspects of local telecom- 
munications that now are governed by the Act, id. at 
71a. 

SUMMARY OF ARGUMENT 

The federal district courts have subject-matter juris- 
diction over suits that challenge, as contrary to federal 
law, orders of state public utility commissions inter- 
preting or enforcing interconnection agreements. That 
jurisdiction derives from either, or both, of two sources: 
47 U.S.C. 252(e)(6), the judicial review provision of the 
1996 Act, and 28 U.S.C. 1331, the general federal-ques- 
tion jurisdiction statute. The Court is considering in 
Mathias v. WorldCom Technologies, Inc., No. 00-878, 
whether Section 252(e)(6) confers jurisdiction on the 
district courts to review such orders. This case con- 
cerns whether jurisdiction also, or alternatively, exists 
under Section 1331. 

Section 1331 provides, in pertinent part, that “[t]he 
district courts shall have original jurisdiction of all civil 
actions arising under the * * * laws * * * of the 
United States.” Section 1331 thus encompasses suits 
that seek “injunctive relief from state regulation, on the 
ground that such regulation is pre-empted by a federal 
statute which, by virtue of the Supremacy Clause of the 
Constitution, must prevail.” Shaw v. Delta Air Lines, 
Inc., 463 U.S. 85, 96 n.14 (1983). This is such a suit. Bell 
Atlantic contends that the MPSC has construed its 
interconnection agreements in a manner that conflicts 
with, and thus is preempted by, federal law, specifically 

14 

a declaratory ruling issued by the FCC pursuant to the 
1996 Act. 

The court of appeals, while not disputing that Bell 
Atlantic’s suit is one “arising under the * * * laws 

* * * of the United States,” nonetheless held that the 
suit was not within the district court’s jurisdiction 
under Section 1331. The court of appeals construed 
Section 252(e)(6), which provides the district courts 
with jurisdiction to review a state commission’s “deter- 
mination under [Section 252]” of the 1996 Act, as 
applying only to a determination approving or rejecting 
a new interconnection agreement, and not to a deter- 
mination interpreting or enforcing an existing agree- 
ment. The court of appeals then concluded that it 
would “undermine” congressional intent to allow state 
commission determinations that are not (in the court’s 
view) reviewable in district court under Section 
252(e)(6) nonetheless to be reviewable under Section 
1331. 

The court of appeals’ reasoning is not supported by 
the text of Section 252(e)(6) or by the congressional 
purpose underlying the local competition provisions of 
the 1996 Act. Section 252(e)(6) simply provides that the 
district courts possess jurisdiction with respect to 
certain categories of cases arising under the Act. It 
does not purport to curtail the district courts’ existing 
jurisdiction under Section 1331 with respect to cases 
arising under federal law generally. Moreover, in a 
companion provision of the Act, Congress expressly 
provided that “[n]o State court shall have jurisdiction to 
review the action of a State commission” in certain 
contexts, 47 U.S.C. 252(e)(4). Presumably, if Congress 
intended similarly to restrict the jurisdiction of the 
federal courts, Congress would have used similarly 
preclusive language. 

15 

Congress enacted the 1996 Act with the purpose of 
establishing a federal regulatory regime with respect to 
local telecommunications competition. Congress per- 
mitted state commissions, if they chose, to play a role in 
that regime, but only in accordance with the new 
federal standards and procedures. Congress wanted 
the federal district courts to be available to assure that 
state commissions properly apply those federal stan- 
dards; indeed, Congress made the federal courts the 
exclusive forum to review state commissions’ orders 
approving or rejecting interconnection agreements 
under the Act. It does not stand to reason that Con- 
gress at the same time intended to divest the district 
courts of jurisdiction over suits contending that other 
actions of state commissions with respect to inter- 
connection agreements violate controlling federal law. 

ARGUMENT 

FEDERAL DISTRICT COURTS HAVE JURIS- 
DICTION UNDER 28 U.S.C. 1331 TO ADJUDICATE 
SUITS “ARISING UNDER THE * * * LAWS * * * 
OF THE UNITED STATES” TO CHALLENGE STATE 
COMMISSION ORDERS INTERPRETING OR 
ENFORCING INTERCONNECTION AGREEMENTS 

1. This Court granted certiorari in Mathias v. 
WorldCom Technologies, Inc., No. 00-878, to consider, 
among other things, whether 47 U.S.C. 252(e)(6), the 
judicial review provision of the 1996 Act, grants the 
district courts jurisdiction to review state commission 
orders interpreting or enforcing existing interconnec- 
tion agreements for compliance with the Act. Section 

16 

252(e)(6), titled “Review of State commission actions,” 
states, in pertinent part: 

In any case in which a State commission makes a 
determination under this section [i.e., Section 252], 
any party aggrieved by such determination may 
bring an action in an appropriate Federal district 
court to determine whether the agreement or state- 
ment meets the requirements of section 251 of this 
title and this section. 

47 U.S.C. 252(e)(6). 

Section 252 expressly provides that, when an inter- 
connection agreement is concluded through either 
negotiation or arbitration, the agreement must be 
submitted to the state commissions for its approval or 
rejection. See 47 U.S.C. 252(a) and (b). It is therefore 
undisputed that a state commission “makes a deter- 
mination under [Section 252]” when it approves or 
rejects an interconnection agreement in the first in- 
stance. Those are not, however, the only state commis- 
sion decisions that are reviewable under Section 
252(e)(6), as every court of appeals that has addressed 
the question, with the exception of the Fourth Circuit 
here, has recognized.2 A state commission’s authority 
under Section 252 to approve an interconnection agree- 
ment necessarily encompasses the authority to inter- 
pret and enforce the agreement as disputes sub- 
sequently arise in its implementation. Accordingly, a 

2 See Southwestern Bell Tel. Co. v. Brooks Fiber Com- 
munications of Okla., Inc., 235 F.3d 493, 496-497 (10th Cir. 2000); 
Southwestern Bell Tel. Co. v. Connect Communications Corp., 225 
F.3d 942, 946 (8th Cir. 2000); MCI Telecomms. Corp. v. Illinois 
Bell Tel. Co., 222 F.3d 323, 338 (7th Cir. 2000), cert. denied, 121 S. 
Ct. 896 (2001); Southwestern Bell Tel. Co. v. Public Util. Comm’n, 
208 F.3d 475, 479-480 (5th Cir. 2000). 

17 

state commission’s order interpreting or enforcing an 
existing agreement is a “determination under [Section 
252]” that is reviewable in federal district court under 
Section 252(e)(6). See U.S. Br. 16-29, Mathias. 

The question on which the Court granted certiorari 
in this case concerns an alternative basis of federal 
jurisdiction to review orders interpreting or enforcing 
interconnection agreements—namely, 28 U.S.C. 1331, 
the general federal-question jurisdiction statute. The 
Court need not resolve that question if, in Mathias, the 
Court holds that Section 252(e)(6) encompasses such 
orders. In any event, whether or not Section 252(e)(6) 
affirmatively vests the district courts with jurisdiction 
to review state commission orders interpreting or 
enforcing interconnection agreements, that provision 
certainly does not divest the district courts of the 
jurisdiction that they ordinarily possess under Section 
1331 with respect to claims arising under federal law. 
Accordingly, the district court has jurisdiction under 
Section 1331 to adjudicate Bell Atlantic’s claim that the 
MPSC construed and enforced its interconnection 
agreements in a manner that is contrary to, and thus is 
preempted by, controlling federal law. 

2. Section 1331 states that “[t]he district courts shall 
have original jurisdiction of all civil actions arising 
under the Constitution, laws, or treaties of the United 
States.” 28 U.S.C. 1331. This Court has recognized 
that Section 1331 provides the district courts with 
jurisdiction over suits to enjoin state regulatory action 
on the ground that such action is contrary to federal 
law: 

A plaintiff who seeks injunctive relief from state 
regulation, on the ground that such regulation is 
pre-empted by a federal statute which, by virtue of 

18 

the Supremacy Clause of the Constitution, must 
prevail, * * * presents a federal question which 
the federal courts have jurisdiction under 28 U.S.C. 
§ 1331 to resolve. 

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 
(1983) (citing cases); see also, e.g., Lawrence County v. 
Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 259 

n.6 (1985) (noting that a suit seeking “a declaratory 
judgment that [a] state statute conflicted with [a] 
federal Act and was therefore invalid under the Su- 
premacy Clause” was “one arising under federal law 
for purposes of federal jurisdiction under 28 U.S.C. 
§ 1331”). 

This is such a case. The gravamen of Bell Atlantic’s 
complaint in the district court is that the MPSC issued 
an order that “is in direct conflict with a declaratory 
ruling issued February 26, 1999 by the Federal Com- 
munications Commission” pursuant to the 1996 Act. 
Verizon Pet. App. 73a-74a; see also id. at 75a-76a 
(describing allegations of complaint). The interconnec- 
tion agreements between Bell Atlantic and competing 
carriers provide for the payment of reciprocal com- 
pensation “for the transport and termination of Local 
Traffic.” Id. at 109a. The agreements do not specify 
whether the term “Local Traffic” includes calls to ISPs 
to gain access to the Internet. After the agreements 
took effect, the FCC issued a declaratory ruling that, 
among other things, characterized ISP calls as “largely 
interstate,” and thus as outside the scope of any obli- 
gation to pay reciprocal compensation imposed by the 
1996 Act and its implementing regulations. See In re 
Implementation of the Local Competition Provisions in 
the Telecommunications Act of 1996 (Declaratory Rul- 
ing), 14 F.C.C.R. 3689, 3690 (1999), vacated and re- 

19 

manded, Bell Atlantic Tel. Cos. v. FCC, 206 F.3d 1 
(D.C. Cir. 2000). The MPSC nonetheless continued to 
construe the agreements at issue here, with their 
provision for the payment of reciprocal compensation 
for “Local Traffic,” as requiring reciprocal compensa- 
tion for ISP calls.3 

Bell Atlantic’s suit thus turns on the resolution of a 
federal question: whether the FCC’s Declaratory 
Ruling (or the considerations underlying that Ruling) 
precludes state commissions from construing existing 
interconnection agreements to require the payment of 
reciprocal compensation for ISP calls. The task of 
resolving that question on the merits has been com- 
plicated by the decision of the District of Columbia 
Circuit vacating the Declaratory Ruling and the 

3 Although the 1996 Act imposes a general duty to “establish 
reciprocal compensation arrangements for the transport and ter- 
mination of telecommunications,” 47 U.S.C. 251(b)(5), the FCC’s 
implementing regulations at that time limited the requirement to 
“local telecommunications traffic,” 47 C.F.R. 51.701(a) (2000). See 
Verizon Pet. App. 26a-27a. In the Declaratory Ruling, the FCC 
concluded that calls to ISPs are primarily interstate, reasoning 
that the communication does not terminate with the local ISP, but 
instead extends to out-of-state websites. See 14 F.C.C.R. at 3690 
(para. 1). The FCC also stated, however, that parties may include 
in their interconnection agreements a provision for the payment of 
reciprocal compensation for ISP calls and that state commissions 
may construe existing agreements as requiring such payment. Id. 
at 3703-3705 (paras. 24-25). On review, the D.C. Circuit principally 
held that the FCC had not adequately justified the use of a so- 
called “end-to-end” analysis, which the FCC has traditionally used 
to determine whether a call is within its interstate jurisdiction, to 
determine whether ISP calls are local or non-local for purposes of 
47 U.S.C. 251(b)(5) and 47 C.F.R. 51.701(a). See Bell Atlantic Tel 
Cos. v. FCC, 206 F.3d at 4-5. The court vacated the Declaratory 
Ruling and remanded the matter to the FCC for further pro- 
ceedings. 

20 

pendency of further FCC proceedings on remand. See 
note 3, supra. But that does not affect the jurisdictional 
question on which this Court has granted review; nor 
does it detract from the quintessentially federal charac- 
ter of the underlying question sought to be resolved by 
the invocation of the district court’s jurisdiction in this 
case. 

3. The court of appeals, although holding that the 
federal courts do not have jurisdiction over Bell Atlan- 
tic’s suit pursuant to Section 1331, did not dispute that 
the suit is one “arising under the * * * laws * * * of 
the United States” within the meaning of Section 1331.4 
Instead, the court of appeals perceived the grant of 
jurisdiction to federal courts in 47 U.S.C. 252(e)(6) as 
curtailing the jurisdiction otherwise available to 
federal courts under 28 U.S.C. 1331. Verizon Pet. App. 
48a. Thus, the court of appeals reasoned, “in light of the 
limited grant of federal jurisdiction in 47 U.S.C. 
§ 252(e)(6), the exercise of § 1331 general federal- 
question jurisdiction would ‘flout, or at least undermine, 
congressional intent.’ ” 

Ibid. (quoting Merrell Dow 
Pharm. Inc. v. Thompson, 478 U.S. 804 (1986)). That 
conclusion is incorrect. 

4 In holding that this suit could not proceed against the state 
commissioners under Ex parte Young, the court of appeals sug- 
gested that a carrier, such as Bell Atlantic here, could not “allege 
an ongoing violation of federal law when the State commission 
determines as a matter of State contract law that the parties 
agreed to treat ISP-bound calls as local for purposes of reciprocal 
compensation.” Verizon Pet. App. 27a-28a. But that suggestion 
itself depends on the court of appeals’ conclusion concerning a 
question of federal law: that the FCC’s Declaratory Ruling 
“explicitly allows for a result of the kind reached by the State 
commission in this case.” Id. at 28a. 

21 

a. Nothing in the text of Section 252(e)(6), which 
makes clear that the federal courts possess jurisdiction 
with respect to certain cases arising under the 1996 
Act, purports to restrict the federal courts’ jurisdiction 
under Section 1331 with respect to other cases. Con- 
gress enacted the 1996 Act, including its judicial review 
provisions, against the backdrop of Section 1331, with 
its conferral of jurisdiction over “all civil actions arising 
under the Constitution, laws, or treaties of the United 
States.” 28 U.S.C. 1331 (emphasis added). Congress 
must be presumed to understand that, in order to 
withdraw the federal courts’ existing jurisdiction over 
some category of cases arising under federal law, a 
statute would have to speak in language of divestment. 
See McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 
494 (1991) (recognizing that the district courts’ “general 
federal-question jurisdiction under 28 U.S.C. § 1331 to 
hear [an] action remains unimpaired” unless Congress 
has clearly precluded such jurisdiction). But Congress 
did not employ such language in Section 252(e)(6).5 
Moreover, in a companion provision of Section 252, 
Congress declared, in no uncertain terms, that “[n]o 
State court shall have jurisdiction to review the action 
of a State commission in approving or rejecting an 
agreement under this section.” 47 U.S.C. 252(e)(4). 

5 The MPSC argued to the court of appeals, as the state com- 
missioners argue to this Court in Mathias, that Section 252(e)(6) 
does not confer federal jurisdiction to review orders interpreting 
or enforcing interconnection agreements, because the 1996 Act 
does not specifically refer to such orders. At the same time, the 
MPSC argued that Section 252(e)(6) revokes federal court juris- 
diction under Section 1331 with respect to suits challenging such 
orders as contrary to federal law, even though the Act does not 
specifically refer to such orders. Both of those propositions cannot 
be correct; but both may be, and in fact are, incorrect. 

22 

Presumably, if Congress intended similarly to deprive 
the federal courts of jurisdiction over certain categories 
of cases arising under federal law, Congress would have 
spoken in similar terms. Instead, however, Congress 
used entirely different language in Section 252(e)(6), 
which is consistent with federal court jurisdiction over 
all cases arising under the 1996 Act, whether jurisdic- 
tion is based on Section 252(e)(6) or Section 1331. See 
Russello v. United States, 464 U.S. 16, 23 (1983) 
(“[W]here Congress includes particular language in one 
section of a statute but omits it in another section of the 
same Act, it is generally presumed that Congress acts 
intentionally and purposely in the disparate inclusion or 
exclusion.”). 

Congress knows quite well how to preclude judicial 
review under Section 1331 if it so desires. For example, 
in Your Home Visiting Nurse Services, Inc. v. Shalala, 
525 U.S. 449 (1999), this Court confirmed that a pro- 
vision of the Medicare Act, 42 U.S.C. 405(h), bars suits 
under Section 1331. That provision states, in relevant 
part, that “[n]o action against * * * the [Secretary] or 
any officer or employee thereof shall be brought under 
section 1331 * * * of title 28 to recover on any claim 
arising under this subchapter.” 525 U.S. at 456. No 
comparable language in the 1996 Act purports to divest 
the federal courts of jurisdiction under Section 1331 
with respect to suits contending that certain orders of 
state commissions violate federal law. 

b. Nor is there any indication in the purpose or 
history of the 1996 Act that Congress intended to 
deprive the district courts of the jurisdiction that they 
ordinarily possess with respect to cases arising under 
federal law. Indeed, all indications are to the contrary. 
In the 1996 Act, Congress established a new federal 
regulatory regime to govern local telecommunications 

23 

competition; as this Court has observed, “[w]ith regard 
to the matters addressed by the 1996 Act,” Congress 
“unquestionably” has “taken the regulation of local 
telecommunications competition away from the States.” 
AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 379 n.6 
(1999). Congress allowed the States, through their 
state commissions, to play a role in that new regime, 
but only in accordance with the new federal standards 
(and any consistent state standards). Congress wanted 
the federal courts to be available to assure that state 
commissions properly apply those federal standards. 
Thus, Congress made the federal courts the exclusive 
forum to review state commissions’ orders approving or 
rejecting interconnection agreements under the 1996 
Act. It does not stand to reason that Congress at the 
same time stripped the federal courts of jurisdiction 
over suits contending that other regulatory actions of 
state commissions with respect to interconnection 
agreements are contrary to federal law. 

Congress would have understood that important 
issues of federal law would be implicated by state com- 
missions’ decisions interpreting and enforcing intercon- 
nection agreements as well as by decisions approving or 
rejecting such agreements in the first instance. It may 
often be the case that such issues do not arise until an 
agreement has been in place for some time. For 
example, given the rapidity of technological change 
within the telecommunications industry, disputes may 
arise during the term of the agreement as to whether, 
or to what extent, old terminology applies to new cir- 
cumstances. The underlying dispute in this case con- 
cerning the characterization of calls to ISPs is illustra- 
tive. Congress could not have intended to deprive the 
district courts of jurisdiction to consider whether a 

24 

state commission has resolved such a dispute in a 
manner contrary to federal law. 

c. The Sixth Circuit has held that certain state com- 
mission orders, although not reviewable in district 
court under Section 252(e)(6), are nonetheless review- 
able under Section 1331. GTE North, Inc. v. Strand, 
209 F.3d 909, 919-920, cert. denied, 531 U.S. 957 (2000).6 
In so holding, the Sixth Circuit rejected the jurisdic- 
tion-stripping interpretation of Section 252(e)(6) 
adopted by the Fourth Circuit in this case, concluding 
that Section 252(e)(6) is not “the exclusive basis” for 
district court review of “state commission actions that 
in any way relate to interconnection agreements.” Id. 
at 919. The court noted that construing Section 
252(e)(6) to preclude the district courts from exercising 
jurisdiction over federal preemption challenges to state 
commission orders that are not themselves reviewable 
under that provision “would have enormous negative 
implications.” Ibid. The court suggested, for example, 
that such a construction of Section 252(e)(6) would 
enable “state commissions [to] insulate regulatory 
requirements that violate the [1996 Act] from federal 

* * * court review,” and would undermine “Congress’s 
decision to establish federal procedures for negotiating 
interconnection rights and to concentrate judicial 
review of interconnection agreements in the federal 
courts.” Ibid. 

4. Finally, the court of appeals perceived that “it 
would violate basic tenets of federalism” to allow 

6 Strand did not concern judicial review of a state commission 
order, such as the one at issue here, that construes and enforces an 
existing interconnection agreement. Rather, Strand concerned 
judicial review of a state commission order that imposed certain 
requirements on incumbent carriers independent of any inter- 
connection agreement. See Strand, 209 F.3d at 914. 

25 

federal court review of the decisions of a state com- 
mission “in the absence of specific federal authoriza- 
tion.” Verizon Pet. App. 50a (citing Rooker v. Fidelity 
Trust Co., 263 U.S. 413 (1923), and District of Columbia 
Court of Appeals v. Feldman, 460 U.S. 462 (1983)). 
This Court has recognized, however, that general statu- 
tory language is sufficient to confer jurisdiction on the 
district courts over suits challenging the decisions of a 
state agency or state official as contrary to federal law. 
See, e.g., City of Chicago v. International College of 
Surgeons, 522 U.S. 156, 169 (1997) (“federal jurisdiction 
generally encompasses judicial review of state admini- 
strative decisions”); Blatchford v. Native Vill. of 
Noatak, 501 U.S. 775, 786-787 n.4 (1991). 

The assertedly “quasi-judicial” status of the MPSC 
under state law (Verizon Pet. App. 50a) does not alter 
the analysis. The Rooker-Feldman abstention doctrine, 
which bars the lower federal courts from entertaining 
challenges to the decisions of state courts, rests on a 
rationale that does not extend to the decisions of state 
commissions. “The Rooker-Feldman doctrine in- 
terprets 28 U.S.C. § 1257 as ordinarily barring direct 
review in the lower federal courts of a decision reached 
by the highest state court, for such authority is vested 
solely in this Court.” Asarco Inc. v. Kadish, 490 U.S. 
605, 622 (1989); see Rooker, 263 U.S. at 415-416. Section 
1257 does not itself address judicial review of the 
decisions of state commissions. Nor is there any statu- 
tory counterpart to Section 1257 that applies to deci- 
sions of state commissions, even those commissions that 
might arguably be characterized as performing “quasi- 
judicial” functions. 

Finally, any federalism concerns presented by federal 
court review in the circumstances of this case are 
significantly attenuated. As noted above, the States 

26 

have chosen to participate in the federal regulatory 
scheme established by the 1996 Act, which requires the 
application of federal standards set by Congress and 
the FCC. Even the court of appeals acknowledged that 
States made that choice on the understanding that 
many state commission decisions would be reviewable 
in federal court. Verizon Pet. App. 14a-15a. It is thus 
neither surprising nor offensive to federalism principles 
for Congress to have contemplated that, “if the federal 
courts believe a state commission is not regulating in 
accordance with federal policy they may bring it to 
heel,” Iowa Utils. Bd., 525 U.S. at 379 n.6, either under 
Section 252(e)(6) or under Section 1331. 

CONCLUSION 

The judgment of the court of appeals should be 
reversed and the case should be remanded for further 
proceedings, which may, if appropriate, include further 
consideration in light of the Court’s decision in Mathias 

v. WorldCom Technologies, Inc., No. 00-878. 

Respectfully submitted. 

JOHN A. ROGOVIN 

Deputy General Counsel 
Federal Communications 

Commission 
THEODORE B. OLSON 
Solicitor General 

GREGORY G. KATSAS 

Acting Assistant Attorney 

General 

LAWRENCE G. WALLACE 

Deputy Solicitor General 

BARBARA MCDOWELL 

Assistant to the Solicitor 

General 

MARK B. STERN 
CHARLES W. SCARBOROUGH 

Attorneys 

SEPTEMBER 2001