UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-1401

MCIMETRO ACCESS TRANSMISSION SERVICES OF VIRGINIA, 

INCORPORATED, d/b/a Verizon Access Transmission Services of 

Virginia, 

 Plaintiff - Appellant, 

 v. 

MARK C. CHRISTIE, in his official capacity as Chairman of 

the State Corporation Commission of Virginia; THEODORE V. 

MORRISON, JR., in his official capacity as Commissioner of 

the State Corporation Commission of Virginia; JUDITH 

WILLIAMS JAGDMANN, in her official capacity as Commissioner 

of the State Corporation Commission of Virginia, 

 Defendants - Appellees, 

 and 

XO COMMUNICATION SERVICES, INCORPORATED; CAVALIER TELEPHONE, 

LLC; DIECA COMMUNICATIONS, INCORPORATED, d/b/a Covad 

Communications Company, 

 Intervenors/Defendants – Appellees, 

 and 

STATE CORPORATION COMMISSION OF VIRGINIA, 

 Defendant. 

------------------------------------- 

UNITED STATES OF AMERICA; FEDERAL COMMUNICATIONS COMMISSION, 

 Amici Curiae. 
Appeal from the United States District Court for the Eastern 

District of Virginia, at Richmond. James R. Spencer, Chief 

District Judge. (3:06-cv-00740-JRS) 

Argued: December 5, 2008 Decided: February 11, 2009 

Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges. 

Dismissed, vacated, and remanded by unpublished per curiam 

opinion. 

ARGUED: Scott H. Angstreich, KELLOGG, HUBER, HANSEN, TODD, EVANS 

& FIGEL, P.L.L.C., Washington, D.C., for Appellant. Robert A. 

Dybing, THOMPSON & MCMULLAN, Richmond, Virginia, for Appellees. 

ON BRIEF: Michael E. Glover, Michael D. Lowe, VERIZON, 

Arlington, Virginia; Lydia R. Pulley, VERIZON, Richmond, 

Virginia; Gregory G. Rapawy, KELLOGG, HUBER, HANSEN, TODD, EVANS 

& FIGEL, P.L.L.C., Washington, D.C.; Robert M. Tyler, 

MCGUIREWOODS, L.L.P., Richmond, Virginia, for Appellant. John 

F. Dudley, William H. Chambliss, STATE CORPORATION COMMISSION OF 

VIRGINIA, Richmond, Virginia, for Appellees. Matthew B. Berry, 

General Counsel, Joseph R. Palmore, Deputy General Counsel, 

Richard K. Welch, Acting Deputy Associate General Counsel, 

Christopher L. Killion, Deputy Associate General Counsel, 

Nicholas A. Degani, Counsel, FEDERAL COMMUNICATIONS COMMISSION, 

Washington, D.C.; Thomas O. Barnett, Assistant Attorney General, 

James J. O’Connell, Jr., Deputy Assistant Attorney General, 

Catherine G. O’Sullivan, Attorney, Nancy C. Garrison, Attorney, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Amici 

Curiae.

Unpublished opinions are not binding precedent in this circuit. 

2
PER CURIAM: 

 Verizon Access appeals the district court’s dismissal of 

its challenge to conditions placed on its interstate 

communications services by the Virginia State Corporation 

Commission (“VSCC”). The VSSC moved this court to dismiss the 

appeal as moot because of its subsequent rescission of the 

contested conditions and its explicit recognition of exclusive 

FCC jurisdiction over the interstate communications services at 

issue. For the reasons that follow, we agree that the appeal is 

moot and dismiss on that basis. 

I.

 “Verizon Access,” the plaintiff here, is the result of the 

2005 merger of the Virginia subsidiaries of telecommunications 

companies MCI and Verizon Communications. The merger of MCI 

into Verizon required the approval of federal and state 

regulatory agencies, including the Federal Communications 

Commission (“FCC”) and the VSCC, both of which imposed certain 

conditions. The FCC, pursuant to its authority over regulation 

of interstate communications services under the Communications 

Act, 47 U.S.C. § 151, issued an order (“FCC Order”) requiring 

that, for a period of 30 months following the merger date, 

Verizon/MCI “shall not increase the rates paid by MCI’s existing 

customers.” JA 91. The FCC also stated that its conditions were 

3
not intended “to restrict, supersede, or otherwise alter state or 

local jurisdiction under the Communications Act.” JA 90. 

 The VSCC considered and ultimately approved the merger 

pursuant to its authority under the Transfers Act, Va. Code § 

56-88.1 However, its order required that Verizon Access 

“continue to offer to [current and future] wholesale customers 

in Virginia its available intrastate and interstate special 

access private line or its equivalent [which provide dedicated 

bandwidth for a customer’s usage] . . . at pre-merger terms and 

conditions and at prices that do not exceed pre-merger rates.” 

VSCC Order I; JA 58. Unlike the FCC’s rate constraints, which 

were to continue for 30 months, the VSCC’s condition was to 

remain in effect indefinitely, until the VSCC lifted it. JA 52-

53, 58. 

 In April 2006, Verizon Access petitioned the VSCC to remove 

the restriction, arguing that regulation of interstate 

 

1

The Transfers Act requires VSCC approval of any transaction 

that involves the acquisition or disposal of control of a 

telephone company in Virginia. The Act provides that the VSCC 

must issue conditions “as it may deem proper and the 

circumstances require” in order to ensure that the proposed 

combination will neither impair nor jeopardize “adequate service 

to the public at just and reasonable rates.” Va. Code § 56-90.

The Act defines “control” as “(1) the acquisition of twenty-five 

percent or more of the voting stock or (ii) the actual exercise 

of any substantial influence over the policies and actions of 

any . . . telephone company.” Va. Code § 56-88.1. 

4
communications services falls exclusively under federal 

jurisdiction. In July 2006, the VSCC denied the petition. 

 These arguments were then repeated in federal district 

court, with Verizon Access asserting, and the VSCC resisting, 

federal preemption. In March 2007, the district court found 

that the VSCC’s authority was not preempted and granted its 

motion to dismiss. This appeal followed. 

 In January 2008, this court requested that the federal 

government file an amicus brief setting forth its view on 

whether the challenged conditions on the merger are preempted by 

federal law. In February 2008, the FCC and the Department of 

Justice (“DOJ”) filed their joint amicus brief (“FCC/DOJ Brief”) 

supporting Verizon Access’s preemption argument. The government 

offered extensive statutory, regulatory and judicial authority2

 

2

For instance, the government pointed out that the 

provisions of the Communications Act, which created the FCC and 

granted it oversight authority, “apply to all interstate and 

foreign communication by wire.” 47 U.S.C. § 152(a) (emphasis 

added). The government also presented several FCC orders 

supporting its preemption argument. See, e.g., In re Vonage 

Holdings Corp., 19 FCC Rcd. 22404, 22412, para. 16 (2004) 

(stating that the FCC has “exclusive jurisdiction over all 

interstate and foreign communication”) (quotation and citation 

omitted); Mobile Telecomm. Techs. Corp., 6 FCC Rcd. 1938, 1941 

n.6 (1991) (“The [Communications] Act grants this Commission 

exclusive authority to regulate the charges and services of 

interstate common carriers.”). Finally, the government cited 

extensive judicial precedent on point. See, e.g., Global 

Crossing Telecomms., Inc. v. Metrophones Telecomms., Inc., 127 S. 

(Continued) 

5
in support of its argument that “the general rule that the FCC 

has exclusive jurisdiction over interstate communications 

services applies” here. FCC/DOJ Br. at 12. Specifically, the 

brief asserted that the Communications Act generally grants the 

FCC exclusive authority to regulate the rates, terms, and 

conditions on interstate communications services. The federal 

government concluded that in light of the FCC’s exclusive 

jurisdiction, the VSCC lacked jurisdiction to regulate Verizon 

Access’s interstate communications services.3 Id. at 7; 14. 

 On May 30, 2008, the VSCC issued a superseding order 

accepting the federal government’s position regarding the 

exclusivity of the FCC’s regulatory jurisdiction in this context 

 

Ct. 1513, 1516–17 (2007) (noting that the Communications Act sets 

up a “traditional regulatory system” in which the FCC was 

“granted broad authority to regulate interstate telephone 

communications,” including the authority to “determine a rate’s 

reasonableness.”); Crockett Tel. Co. v. FCC, 963 F.2d 1564, 1566 

(D.C. Cir. 1992) (“The FCC has exclusive jurisdiction to regulate 

interstate common carrier services including the setting of 

rates.”). 

3

In order to clarify its jurisdiction, the FCC has drawn a 

bright line to distinguish interstate communications (over which 

it has jurisdiction) and intrastate communication (over which 

the states retain jurisdiction). Communications services are 

classified as “interstate” for rate regulation and other 

purposes “if the interstate traffic on the line involved 

constitutes more than ten percent of the total traffic on the 

line.” 47 C.F.R. § 36.154(a). 

6
and rescinding the contested conditions. See VSCC Order, Case 

No PUC-2008-00023 (May 30, 2008) (“VSCC Order II”). VSCC Order 

II stated, in part: 

On February 19, 2008, . . . the [DOJ] and the FCC 

filed an amicus curiae brief . . . Therein, the DOJ 

and FCC declared the . . . requirements on interstate 

rates, terms, and conditions contained in [VSCC Order 

I] is preempted by federal regulation. Upon 

consideration of the foregoing, it is hereby ordered 

that . . . [t]he condition . . . from [VSCC Order I] 

is rescinded insofar as it applies to interstate 

special, private line or its equivalent, and high 

capacity loop and transport facilities. 

 

VSCC Order II at 2 (emphasis added; original emphases deleted). 

 On June 9, 2008, the VSCC moved this court to dismiss 

Verizon Access’s appeal for mootness. Motion to Dismiss (June 

9, 2008) (“VSCC Motion”). The VSCC Motion reaffirmed the VSCC’s 

recognition of the FCC’s exclusive authority to regulate the 

interstate communications services at issue here, stating that 

“the [VSCC] expressly recognized the scope of that federal 

preemption in its May 30, 2008 Order [i.e., VSCC Order II].” 

VSCC Motion at 5. 

 We deferred ruling on this motion until after oral 

argument. At oral argument, the VSCC again reiterated its 

recognition and acceptance of the FCC’s exclusive authority to 

regulate the interstate communications services at issue here. 

The VSCC stated that it did not object to this court basing a 

finding of mootness, in part, on the VSCC’s recognition of FCC 

7
preemption; that the government’s analysis was correct; and that 

the FCC had spoken with authority. 

 We turn now to the VSCC’s mootness argument 

II. 

 A case is not necessarily mooted by a defendant’s voluntary 

cessation of allegedly offensive conduct. As the Supreme Court 

has held, “It is well settled that a defendant’s voluntary 

cessation of a challenged practice does not deprive a federal 

court of its power to determine the legality of the practice.” 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.

528 U.S. 167, 189 (2000) (quotation and citation omitted). The 

Court explained that if such voluntary cessation resulted in 

deprivation of jurisdiction to hear the case, “the courts would 

be compelled to leave the defendant free to return to his old 

ways.” Id. (punctuation and citation omitted). To prevent a 

party from evading judgment by stopping and restarting 

challenged conduct, the Court narrowly defined conduct in which 

mootness following voluntary cessation might be appropriate: “A 

case might become moot if subsequent events made it absolutely 

clear that the allegedly wrongful behavior could not reasonably 

be expected to recur.” Id. (quotation and citation omitted). 

Explaining this “stringent” principle, the Court held that the 

party asserting mootness bears the “heavy burden of persuading 

8
the court that the challenged conduct cannot reasonably be 

expected to start up again.” Id. (quotation and citation 

omitted). 

 Here, the VSCC voluntarily rescinded its conditions that 

affected Verizon Access’s interstate communications services. 

Standing alone, this rescission would be insufficient for the 

VSCC to meet its “heavy burden” of persuading this court that 

one could not reasonably expect that it would attempt to 

regulate Verizon Access’s interstate communications services in 

the future. However, the VSCC also offers its explicit 

endorsement of the FCC’s position (and so, the plaintiff’s 

identical position) on preemption.4 VSCC Motion at 5. Given our 

general reluctance to assume that a state agency such as the 

VSCC would not comply with a properly recognized law,5 we agree 

that the VSCC has met its heavy burden. Consequently, we find 

there is no reasonable likelihood that the VSCC would seek to 

 

4

As the VSSC states, “[h]aving . . . acknowledged federal 

preemption over the challenged conditions, it is, at the very 

least, extremely unlikely that the Commissioners would flout 

that statement of preemption . . . .” VSCC Motion at 5. 

5

See, e.g., Blackwell v. Thomas, 476 F.2d 443, 445-46 (4th 

Cir. 1973) (holding that this court cannot hypothesize that a 

state jury commission would not comply with the law). 

9
10

regulate interstate communications services in this manner in 

the future. 

III. 

 Because the VSCC rescinded the contested conditions and 

explicitly recognized the FCC’s exclusive authority to regulate 

the interstate communications services at issue, we conclude 

that the complained of activity is unlikely to recur and the 

appeal is moot. Therefore, in accordance with established 

practice,6 we vacate the judgment below and remand with a 

direction to dismiss. 

DISMISSED, VACATED, AND REMANDED

 

6

See Arizonans for Official English v. Arizona, 520 U.S. 43, 

71 (1997); United States v. Munsingwear, Inc., 340 U.S. 36, 39 

(1950).