IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MCI WORLDCOM COMMUNICATIONS, INC.,

a Delaware corporation; MCIMETRO

ACCESS TRANSMISSION SERVICES LLC,

a Delaware corporation, and intervenor

FLORIDA DIGITAL NETWORK, INC.,

Plaintiffs,

vs. CASE NO.: 4:01cv492-SPM

BELLSOUTH TELECOMMUNCATIONS, INC.,

a Georgia corporation; the FLORIDA PUBLIC 

SERVICE COMMISSION; E. LEON JACOBS,

JR., in his official capacity as Chairman of the

Florida Public Service Commission; and J.

TERRY DEASON, LILA A. JABER, BRAULIO 

L. BAEZ and MICHAEL A. PALECKI, in their 

official capacities as Commissioners of the 

Florida Public Service Commission,

Defendants.

______________________________________/

ORDER

Pending before the Court is MCI’s petition for further relief (doc. 73). MCI

seeks a post-judgment order from this Court directing the Florida Public Service

Commission (Commission) to ensure that MCI is recompensed for alleged

overpayments MCI made to BellSouth pursuant to UNE rates that the Court

invalidated. The Commission and BellSouth filed responses in opposition to the

relief sought (docs. 78, 80). MCI requested leave to file a reply (docs. 89 and 90),

Case 4:01-cv-00492-SPM-AK Document 102 Filed 07/27/05 Page 1 of 5
which the Commission opposes (doc. 91).

MCI describes the relief that it seeks as a “true-up” to account for any

overpayments made by MCI to BellSouth during the period that the invalidated UNE

rates were in effect. Ordering this relief post-judgment, MCI contends, is authorized

under 28, United States Code, Section 2202, which states: “Further necessary or

proper relief based on a declaratory judgment or decree may be granted, after

reasonable notice and hearing, against any adverse party whose rights have been

determined by such judgment.” In the alternative, MCI cites to Federal Rule of Civil

Procedure 59(e) as a means to alter the judgment to include the requested relief.

BellSouth and the Commission contest the relief sought by MCI on procedural

and equitable grounds. Both BellSouth and the Commission complain about the

lateness of MCI’s request, noting that MCI did not request a true-up in its pleadings

or anytime prior to the entry of final judgment. BellSouth further claims prejudice as

a result of MCI’s lateness, contending that had BellSouth known MCI would request

a true-tup, BellSouth would have sought an expedited decision from this Court to

avoid the possibility of a significant monetary claim or BellSouth would have

otherwise accounted for the claim as a business matter. The Commission contends

MCI’s failure to give prior notice precludes relief under 28 U.S.C. § 2202. The

Commission further contends that MCI could have requested a true-up prior to

judgment and therefore Rule 59 is not an appropriate vehicle to seek such relief. 

On equitable grounds, BellSouth argues that ordering a true-up for MCI is not

appropriate because no similar true-up is available to BellSouth. BellSouth explains

that MCI has had access to elements of BellSouth’s network as the result of prior

Case 4:01-cv-00492-SPM-AK Document 102 Filed 07/27/05 Page 2 of 5
1

 “The equitable doctrine of laches will bar a claim when three elements

are present: ‘(1) delay in asserting a right or claim; (2) that the delay was not

excusable; and (3) that there was undue prejudice to the party against whom the

claim is asserted.’” Venus Lines Agency, Inc. v. CVG Int’l Am. Inc., 234 F.3d

1225, 1230 (quoting Kason Indus., Inc. v. Component Hardware Group, Inc., 120

F.3d 1199, 1203 (11th Cir. 1997).

FCC regulations that have since been invalidated. MCI benefitted from the access

and BellSouth was harmed, but there is no means to recompense BellSouth.

Both BellSouth and the Commission argue in the alternative that, if further

relief is not denied, the matter should be deferred until the pending appeal to the

United States Court of Appeals, Eleventh Circuit, is resolved. The Commission

further argues that determining the propriety of a true-up at this time is premature

because the new UNE rates, if required after appeal, could be higher than the rates

that were invalidated.

As an initial matter, the Court finds that MCI’s request for further relief in the

form of a true-up is not fatally late. Relief in the form of monetary recompense may

be ordered under 28 U.S.C. § 2202 after a declaratory judgment, even if the relief

was not specifically demanded in the complaint. Edward B. Marks Music Corp. v.

Charles K. Harris Music Publ’g Co., 252 F.2d 518, 522, 523 (2d Cir. 1958). It is

enough that the complaint for declaratory judgment request further relief as the

Court deems just and proper, which MCI has done. See doc. 1 at ¶ 57. 

Although BellSouth claims prejudice as a result of MCI’s delay, BellSouth

does not argue that further relief would be barred by laches1

. The record,

furthermore, shows that MCI’s claim for further relief was adequately pleaded, that

it could be reasonably anticipated by BellSouth and, if not, then MCI’s delay in

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2

 In February 2005, the United States Court of Appeals, Eleventh Circuit,

held that monetary recompense, such as a true-up, is available in cases brought

under the Telecommunications Act of 1996, 47 U.S.C. § 252. Prior to that ruling,

MCI’s position was that the state public service commission should have the

opportunity to decide first whether to grant such relief or not before a court could

order it. 

specifying the further relief was excusable2

. So long as a petition for further relief

is not barred by laches, and MCI’s petition is not, the petition can be heard. Horn

& Hardart Co. v. Nat’t R,R, Passenger Corp., 659 F.Supp. 1258, 1263 (D.D.C.

1987). A petition made even after a case is returned on appeal can be heard absent

laches. Id. 

In fact, BellSouth and the Commission make an alternative argument that the

decision to grant or deny further relief should be deferred until after the appeal of

this case. The Commission also argues that any decision on further relief would be

premature until the new UNE rates are determined, which would require a further

deferral. 

The Court agrees that the new UNE rates are an important consideration in

determining whether MCI is entitled to further relief. A determination of the equities

in this case is further complicated by the fact that prior FCC regulations allowing MCI

to lease certain network elements from BellSouth have been invalidated. A

reasoned decision on MCI’s request for further relief cannot be made until these

factors can be weighed. The Commission, furthermore, is in the best position to

fashion any relief that may be appropriate on remand. Accordingly, it is

ORDERED AND ADJUDGED:

1. MCI’s motion for leave to file a reply (doc. 89) is granted and the reply

Case 4:01-cv-00492-SPM-AK Document 102 Filed 07/27/05 Page 4 of 5
(doc. 90) is accepted.

2. MCI’s petition for further relief (doc. 73) is denied. The denial is

without prejudice to MCI’s opportunity to renew its petition for further relief within 30

days of the Commission’s final order on remand.

3. On remand the Commission may order relief in the form of a true-up

upon consideration of the new UNE rates as compared to the invalidated UNE rates,

the harm suffered by BellSouth due to the invalidated FCC regulations, and any

other factor that may be appropriate. 

DONE AND ORDERED this 27th day of July, 2005.

 s/ Stephan P. Mickle 

Stephan P. Mickle

United States District Judge

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