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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

BELLSOUTH TELECOMMUNICATIONS, INC.,

Plaintiff,

v. CASE NO. 4:03cv212-RH

FLORIDA DIGITAL NETWORK, INC.,

et al.,

Defendants.

_________________________________________/

ORDER ON MERITS

Under the Telecommunications Act of 1996, incumbent local exchange

carriers must make certain services and facilities available to competitive carriers. 

See 47 U.S.C. §251(c); MCI Telecomms. Corp. v. BellSouth Telecomms., Inc., 2000

WL 1239840 (N.D. Fla. 2000) (describing these duties in detail), aff’d, 298 F.3d

1269 (11th Cir. 2002). If an incumbent and competitive carrier are unable to agree

on which services and facilities will be made available and on what terms, the Act

authorizes the appropriate state commission to resolve the dispute through an

“arbitration” proceeding. See 47 U.S.C. §252(b)(1). Determinations of state

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Case No: 4:03cv212-RH

commissions are reviewable in actions filed in federal district court. See 47 U.S.C.

§252(e)(6). This is such an action.

Plaintiff BellSouth Telecommunications, Inc. (an incumbent), and defendant

Florida Digital Network, Inc. (a competitor), agreed on all terms under which

BellSouth services and facilities would be made available to Florida Digital, with

one exception. They disagreed with respect to digital subscriber line (“DSL”)

service. That issue went to arbitration before the defendant Florida Public Service

Commission, which determined, over BellSouth’s objections, that BellSouth must

make BellSouth DSL service available to customers who choose Florida Digital as

their local exchange carrier. BellSouth now challenges that decision in this court. 

BellSouth ordinarily provides DSL service to a customer over the same loop

BellSouth uses to provide local service to that same customer. The Federal

Communications Commission has made clear, in response to a petition for

declaratory ruling filed by BellSouth explicitly in response to the Florida

Commission ruling now at issue (as well as similar rulings of other state

commissions) that, at least to the extent based on an incumbent’s obligation to

provide services or facilities to a competitor under federal law, the Florida

Commission’s determination was wrong. The FCC said:

[A] state commission may not require an incumbent local exchange

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1

 Reasonable arguments could be made on both sides of the issue of whether

requiring an incumbent to provide DSL service over the same loop a competitor

uses to provide local service to the same customer promotes or hinders overall

competition for voice or broadband services. The FCC, whose views are entitled

to deference, see, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Counsel,

467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), has resolved the issue in

BellSouth’s favor.

Case No: 4:03cv212-RH

carrier (LEC) to provide digital subscriber line (DSL) service to an

end user customer over the same unbundled network element (UNE)

loop facility that a competitive LEC uses to provide voice services to

that end user. . . . [W]e conclude that state decisions that impose such

an obligation are inconsistent with and substantially prevent the

implementation of the [1996] Act and the [FCC’s rules and policies

implementing the Act].

. . . .

We find that each of the state commission decisions at issue

here – either expressly or implicitly – conditions the terms on which

BellSouth must offer competitive LECs unbundled access to its local

loops in a manner inconsistent with the 1996 Act and our

implementing regulations.

In re BellSouth Telecomms., Inc. Request for Declaratory Ruling, WC Docket No.

03-251 at ¶¶1, 21 (FCC March 25, 2005). 

Defendants do not deny that the FCC’s ruling will be controlling on the

issues it addresses, at least if ultimately upheld on appeal. I accept the FCC ruling

as an accurate statement of federal law.1

Defendants assert, however, that the Florida Commission’s determination is

nonetheless sustainable under Florida law, separate and apart from any federal

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Case No: 4:03cv212-RH

requirements. Thus, they say, the Florida Commission, which has authority to

regulate BellSouth’s provision of local telephone service, simply ruled that

BellSouth cannot withhold DSL service from customers who choose not to obtain

their local service from BellSouth. But beyond any question, DSL service—used

primarily as broadband internet access—is jurisdictionally interstate, not intrastate,

and thus is subject to regulation by the FCC, not by state commissions. BellSouth

provides DSL service pursuant to a federal tariff. The Florida Commission cannot

properly compel BellSouth to provide such service beyond the requirements of its

federal tariff.

The Florida Commission asserts, however, that the ruling at issue merely

regulates local service, not (jurisdictionally interstate) DSL service. This is plainly

wrong. The Florida Commission has required BellSouth to provide DSL to

customers to whom BellSouth does not provide local service; that is the whole

point of the Florida Commission’s ruling. When the one and only service a carrier

provides a customer is interstate, the regulator with jurisdiction is the FCC, not a

state commission.

To be sure, the FCC, in conjunction with its declaratory ruling, gave notice

of its initiation of an inquiry into whether a carrier should be allowed to deny DSL

service to customers of other carriers. Reasonable arguments can be made on both

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Case No: 4:03cv212-RH

sides of that issue, and the FCC, in due course, presumably will address the matter. 

But this merely underscores the point. This is a federal issue, not an issue properly

resolved in a §252 arbitration proceeding or by a state commission.

For these reasons, 

IT IS ORDERED:

The clerk shall enter judgment stating, “The order of the Florida Public

Service Commission requiring BellSouth Telecommunications, Inc. to provide

digital subscriber line service to customers who do not subscribe to BellSouth’s

local telephone service is vacated. The provisions of the Interconnection

Agreement between BellSouth and Florida Digital Network, Inc. relating to digital

subscriber line service to customers who do not subscribe to BellSouth’s local

telephone service are declared invalid. The defendant Commissioners of the

Florida Public Service Commission shall take such further action relating to the

Interconnection Agreement as may be appropriate in light of the Court’s Order on

Merits and this judgment. All other claims in this action are dismissed. All claims 

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against the Florida Public Service Commission, in its name, are dismissed as

redundant.” The clerk shall close the file.

SO ORDERED this 14th day of June, 2005.

s/Robert L. Hinkle 

Chief United States District Judge 

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