IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-30634

CENTURYTEL OF CHATHAM, LLC, ET AL.

Plaintiffs - Appellees

v.

SPRINT COMMUNICATIONS COMPANY, L.P.

Defendant - Appellant

Appeals from the United States District Court

for the Western District of Louisiana

Before BARKSDALE, GRAVES, and HIGGINSON, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Regarding the amount Sprint Communications Company, L.P., was 

required to pay for the right to access the telephone-service subscribers of 

various local administrators (collectively, CenturyLink), primarily at issue is 

the proper application of the 1996 Telecommunications Act as applied by the 

Federal Communications Commission (FCC). Sprint partnered with cable 

companies to, inter alia, convert calls from Internet-based calling technology 

for delivery to CenturyLink customers with otherwise-incompatible 

traditional-format telephone services. Pursuant to federal and state 

regulatory regimes, CenturyLink billed Sprint at CenturyLink’s exchangeUnited States Court of Appeals

Fifth Circuit

FILED

June 27, 2017

Lyle W. Cayce

Clerk

 Case: 16-30634 Document: 00514050733 Page: 1 Date Filed: 06/27/2017
No. 16-30634

2

access tariff rates for Sprint’s being able to connect to CenturyLink’s 

subscribers; and Sprint paid these rates without dispute until 2009, when it 

began claiming its transfer service was exempt from the tariff rates. 

Following a bench trial, the district court concluded, inter alia, that 

Sprint’s transfer service was subject to the tariff rates. CenturyTel of 

Chatham, LLC, et al. v. Sprint Commc’ns Co., L.P., 185 F. Supp. 3d 932, 946

(W.D. La. 2016). Also at issue is the court’s imposing, inter alia, attorney’s fees 

against Sprint for violating the 1996 Act by using “unjust and unreasonable” 

practices. Id. AFFIRMED.

I.

It goes without saying that, for a bench trial, “findings of fact are 

reviewed for clear error”. In re Mid-South Towing Co., 418 F.3d 526, 531 (5th 

Cir. 2005). In any event, neither party challenges the court’s factual findings. 

Accordingly, they are relied upon and cited. 

Plaintiffs (again, CenturyLink) are various entities operating in 

numerous States as “local exchange carriers” (local administrators). 

CenturyTel, 185 F. Supp. 3d at 933–34. This action against Sprint claimed

damages resulting from, inter alia, Sprint’s refusal to pay over $8.7 million in 

“access charges”. Id. at 934. Sprint counterclaimed, seeking a declaration it 

was not required to pay CenturyLink the higher statutory “tariff” rates under 

federal and state laws. Id. 

Beginning in 2004, Sprint partnered with cable companies offering 

“voice-over-internet-protocol services” (VoIP) to provide, inter alia, the 

conversion of VoIP telephone calls to a “time division multiplexing” protocol 

(traditional format) to facilitate calls between the two types of networks. Id.

at 935–36. Conversion for these two types of calling is necessary because they 

are otherwise incompatible; VoIP is a newer technology that delivers telephone 

 Case: 16-30634 Document: 00514050733 Page: 2 Date Filed: 06/27/2017
No. 16-30634

3

calls by splitting data into tiny packets traveling the most efficient pathways 

available, rather than the traditional format, which transmits data over a 

single pathway. Id. at 935 n.4. 

Therefore, for a VoIP subscriber to call someone still using traditionalformat technology, a conversion is required. Id. at 935. Once converted, Sprint 

transmitted the calls to, inter alia, local administrators, like CenturyLink, 

which administer the distribution of telephone calls for termination to their 

subscribers. Id. at 936. 

But, Sprint also transferred calls originating in traditional format to 

CenturyLink’s traditional-format customers. Id. During the period relevant 

to this dispute, CenturyLink did not distinguish between the originating 

format of calls it received from Sprint, and, concomitantly, charged Sprint the 

same rates for calls from both VoIP callers and traditional-format callers; by 

the time CenturyLink received the calls from Sprint, they had already been 

converted. Id. “The VoIP-originated calls were thus in the same format as and 

intermingled with [traditional-format-originated] calls.” Id. 

Historically, for a company like Sprint to connect long-distance

telephone-service subscribers to local administrators’ customers, like

CenturyLink’s, it must pay an exchange-access tariff, as approved either by 

the FCC for interstate calls, or by state regulators for intrastate calls. Id. 

CenturyLink “properly filed with [the FCC] one or more tariffs for the provision 

of interstate switched access service”, and accordingly, “its federal tariffs were 

legally binding”. Id. The same was true for its state tariffs, relevant to the 

intrastate calls. Id. As discussed infra, the rates varied, based on the type of 

service being provided.

Prior to July 2009, Sprint paid, without dispute, the tariffs billed by 

CenturyLink, which, as discussed, included traditional-format and VoIP-

 Case: 16-30634 Document: 00514050733 Page: 3 Date Filed: 06/27/2017
No. 16-30634

4

originated calls. Id. Beginning in July 2009, however, Sprint began disputing 

the tariff-rate access charges assessed in invoices from CenturyLink, 

specifically the rates applied to VoIP-originated calls. Id. For those invoices, 

instead of paying the billed tariff rates, Sprint instead paid $0.0007 per 

minute—the rate the FCC applied to local Internet-service-provider-bound 

traffic—for its VoIP-originated calls converted for transfer to CenturyLink’s 

traditional-format customers; but, CenturyLink “did not agree or acquiesce”. 

Id. at 937 & n.7. On the other hand, Sprint continued to pay the undisputed 

amount billed for its calls originating in traditional format. Id. With its 

resulting partial payments, it submitted an explanation: “To date, although 

the FCC has asserted jurisdiction over VoIP services and has determined that 

information services [as discussed infra] are not subject to access [tariffs], the 

FCC has not yet rendered a determination as to the applicable inter-carrier 

compensation for VoIP traffic”. Id. at 937. Sprint stated it would continue this 

partial-payment practice until guidance was offered by the FCC. Id.

In addition to withholding the amount it deemed unjustified for ongoing 

VoIP-originated calls transferred to CenturyLink, Sprint retroactively 

estimated a percentage of VoIP-originated calls transferred to CenturyLink for 

the period August 2007 to July 2009, and calculated an amount of 

“overpayment” for that period. Id. Sprint deducted this “overpayment” from 

its July 2009 approved payments going forward. Id. 

The disputed period ended October 2011, when the FCC’s 

Comprehensive Reform Order was issued. Id. at 935, 938 (citing In the Matter 

of Connect Am. Fund, Report and Order and Further Notice of Proposed 

Rulemaking, 26 FCC Rcd. 17663 (2011) (Comp. Reform Order)). That order, 

inter alia, expressly clarified that, going forward, VoIP-originated calls would 

be subject to the interstate exchange-access tariff rates, Comp. Reform Order, 

 Case: 16-30634 Document: 00514050733 Page: 4 Date Filed: 06/27/2017
No. 16-30634

5

26 FCC Rcd. at 18002, ¶ 933; but, the tariff regime would be phased out 

completely by 2020. Id. at 17934, ¶ 801.

This action originated in 2009, before being transferred to multidistrict 

litigation in the northern district of Texas, with the claims at issue here being 

severed and remanded to the western district of Louisiana. See In re IntraMTA 

Switched Access Charges Litig., No. 3:14-MD-2587, 2015 WL 7252948 (N.D. 

Tex. 17 Nov. 2015). After a two-day bench trial, followed by post-trial briefing, 

the court ruled in favor of CenturyLink. CenturyTel, 185 F. Supp. 3d at 934, 

946.

Regarding the federal tariffs, at issue was the proper application of 

§ 251(g) of the 1996 Telecommunications Act, 47 U.S.C. § 251(g). CenturyTel, 

185 F. Supp. 3d at 940–41. That provision is a grandfather clause, preserving 

the pre-Act “restrictions and obligations (including receipt of compensation) 

that apply . . . under any court order, consent decree, or regulation, order or 

policy of the [FCC], until such restrictions and obligations are explicitly 

superseded by regulations prescribed by the [FCC]”. 47 U.S.C. § 251(g).

Prior to the passage of the 1996 Act, local administrators, like 

CenturyLink, were allowed monopolies over local services. See AT&T Corp. v. 

Iowa Utils. Bd., 525 U.S. 366, 371 (1999). An “interexchange carrier” (IXC), 

like Sprint, provided the long-distance service, connecting callers in one 

locality to those in others. CenturyTel, 185 F. Supp. 3d at 940. (As discussed 

infra, Sprint’s being an “IXC” is critical to resolving this appeal.) Under the 

pre-Act framework, the local monopolies could impose an exchange-access

tariff on the long-distance provider in exchange for access to that local network. 

Id. (citing In re IntraMTA, 2015 WL 7252948, at *2, *4–5). 

Although these local monopolies were abolished under the 1996 Act, the

already-established local administrators continued to be permitted to charge 

 Case: 16-30634 Document: 00514050733 Page: 5 Date Filed: 06/27/2017
No. 16-30634

6

tariffs to telecommunications carriers for access unless and until the FCC

explicitly superseded that system. Id. at 940–41. In that regard, however, the 

FCC in 1980 had recognized an exemption from the higher-tariff rates for

“enhanced service” providers. See Nat’l Cable & Telecomm. Ass’n v. Brand X 

Internet Svcs., 545 U.S. 967, 976–77 (2005) (citing In re Amendment of Section 

64.702 of the Comm’n’s Rules and Regulations (Second Computer Inquiry), 77 

FCC 2d 384, 420–22 (1980)). Enhanced services were distinct from “basic 

services”. 

Basic services “meant a communications path that enabled the consumer 

to transmit an ordinary-language message to another point, with no computer 

processing or storage of the information, other than the processing or storage 

needed to convert the message into electronic form and then back into ordinary 

language for purposes of transmitting it over the network—such as via a 

telephone or facsimile”. Id. at 976. Enhanced services, on the other hand, were 

services “in which ‘computer processing applications [were] used to act on the 

content, code, protocol, and other aspects of the subscriber’s information,’ such 

as voice and data storage services, as well as ‘protocol conversion’ (i.e., ability 

to communicate between networks that employ different data-transmission 

formats)”. Id. at 976–77 (quoting Second Computer Inquiry, 77 FCC 2d at 420–

22, ¶¶ 97, 99) (internal citations omitted). Basic services were subject to 

common-carrier regulation; but, enhanced services were exempt, in order to 

avoid negatively restraining “the fast-moving, competitive market”. Id. at 977 

(quoting Second Computer Inquiry, 77 FCC 2d at 434, ¶ 129). 

In Brand X, the Supreme Court determined these terms were carried 

over, under new nomenclature, by the 1996 Telecommunications Act, with 

basic services restyled as “telecommunications services”, and enhanced 

services as “information services”, as referenced supra, in the explanation 

 Case: 16-30634 Document: 00514050733 Page: 6 Date Filed: 06/27/2017
No. 16-30634

7

Sprint provided CenturyLink for why Sprint was paying less than it was billed. 

Id. at 977. Both services are “telecommunications”, which is “the transmission, 

between or among points specified by the user, of information of the user’s 

choosing, without change in the form or content of the information as sent and 

received”. 47 U.S.C. § 153(50). 

Telecommunications service is “the offering of telecommunications for a 

fee directly to the public . . . regardless of the facilities used”, id. § 153(53), 

while information service is “the offering of a capability for generating, 

acquiring, storing, transforming, processing, retrieving, utilizing, or making 

available information via telecommunications”, id. § 153(24). Of these two 

services, only telecommunications services are subject to common-carrier 

regulation and the exchange-access tariffs, while information services enjoy 

the enhanced-services exemption. Brand X, 545 U.S. at 977.

Despite Sprint’s emphasis on these differences, the district court 

concluded it need not determine whether Sprint’s VoIP-to-traditional-format 

transfer services qualified as information services or telecommunications 

services. CenturyTel, 185 F. Supp. 3d at 941. Instead, citing the FCC’s 2011 

Comprehensive Reform Order, the court stated that the FCC “reject[ed] the 

claim that intercarrier compensation for VoIP[-to-traditional-format] traffic is 

categorically excluded from” the Act’s grandfather clause, 47 U.S.C. § 251(g),

which maintained aspects of the exchange-access tariff regime. CenturyTel, 

185 F. Supp. 3d at 942 (quoting Comp. Reform Order, 26 FCC Rcd. at 18016–

17, ¶ 957). Accordingly, such calls were still subject to pre-1996 exchangeaccess charges, even if classified as “information services”. Id. 

The district court also found persuasive that “the FCC was ‘mindful of 

the need for a measured transition for carriers that receive substantial 

revenues from intercarrier compensation’”. Id. at 942 (quoting Comp. Reform 

 Case: 16-30634 Document: 00514050733 Page: 7 Date Filed: 06/27/2017
No. 16-30634

8

Order, 26 FCC Rcd. at 18003, ¶ 935). The court noted the FCC did not 

expressly state the tariff regime was superseded, but instead was being phased

out to ultimately be completely replaced by 2020. Id. (quoting Comp. Reform 

Order, 26 FCC Rcd. at 17934, ¶ 801). 

Accordingly, the court upheld the imposition of the federal tariff rates 

against Sprint. Id. The court also ruled in favor of CenturyLink with regard 

to state tariffs, holding, inter alia, they were not preempted. Id. at 945. 

Therefore, the court awarded damages against Sprint for the total access 

charges and applicable late-payment fees. Id. at 946. At issue were $1.1 

million in interstate tariff charges, and $7.6 million for intrastate. 

CenturyLink claimed an additional approximate $3.2 million in late fees 

accrued through February 2016, with approximately $650,000 for interstate,

and $2.5 million for intrastate. 

Finally, the court ruled in favor of CenturyLink on its claim that Sprint 

violated the 1996 Act’s bar against “unjust and unreasonable” practices. Id.

Under 47 U.S.C. § 201(b), a private right of action exists for damages for “any 

‘practice’ in connection with providing communications services ‘that is unjust 

or unreasonable’”. CenturyTel, 185 F. Supp. 3d at 945 (quoting § 201(b)); see 

also Global Crossing Telecomms., Inc. v. Metrophones Telecomms., Inc., 550 

U.S. 45, 53 (2007). 

Section 207 provides that “[a]ny person claiming to be damaged by any 

common carrier . . . may bring suit for the recovery of damages for which such 

common carrier may be liable under the provisions of this chapter”. 47 U.S.C. 

§ 207. A carrier is liable for “damages sustained in consequence of” the carrier’s 

doing “any act, matter, or thing in this chapter prohibited or declared to be 

unlawful”, as well as “a reasonable counsel or attorney’s fee”. Id. § 206. 

 Case: 16-30634 Document: 00514050733 Page: 8 Date Filed: 06/27/2017
No. 16-30634

9

Accordingly, because § 201(b) declares “unjust or unreasonable” 

practices to be unlawful, a remedy for damages is available. Global Crossing, 

550 U.S. at 52–53. The court construed Sprint’s retroactively withholding 

payment as improper “self-help”, and, therefore, an “unjust or unreasonable” 

practice in violation of § 201(b), entitling CenturyLink to, inter alia, attorney’s 

fees. CenturyTel, 185 F. Supp. 3d at 945–46. 

II.

Sprint challenges the district court’s concluding Sprint: was required to 

pay CenturyLink the challenged tariff-rate access charges; and engaged in 

“unjust or unreasonable” practices when it retroactively “clawed-back” funds 

by not paying charges it undisputedly owed. Sprint contends: the court erred 

in holding the tariff rates applied to its VoIP-to-traditional-format transfer; 

and its claw-back practices were reasonable under industry standards. 

The parties do not dispute the well-known standard of review. The 

district court’s conclusions of law and application of the law to the facts are 

reviewed de novo, e.g., Dresser v. Meba Med. & Benefits Plan, 628 F.3d 705, 

708 (5th Cir. 2010); its findings of fact, for clear error, e.g., In re Mid-South 

Towing Co., 418 F.3d at 531. As stated supra, the findings of fact are not 

challenged.

A.

Sprint disputes two categories of tariff-rate charges: state and federal. 

Many States imposed their own tariff rates for exchange-access transfer 

services, similar to those imposed by the FCC. We address the two categories 

separately.

1.

As noted, the vast majority of the challenged amounts are state-imposed 

access charges ($7.6 million), rather than federal charges ($1.1 million). And, 

 Case: 16-30634 Document: 00514050733 Page: 9 Date Filed: 06/27/2017
No. 16-30634

10

more than one-third of the total disputed amounts are charges based on 

intrastate traffic in Missouri. CenturyTel, 185 F. Supp. 3d at 943. Missouri

explicitly dictates that VoIP-originated calls are subject to its intrastate access 

tariffs. Mo. Rev. Stat. § 392.550(2). 

In district court, Sprint challenged all of the state-imposed amounts as 

being preempted by the federal tariff scheme. The court concluded, however:

“the state access tariff rates are not preempted”, based on deference to the 

FCC’s 2011 Comprehensive Reform Order’s explicitly rejecting federal 

preemption as applied to VoIP-to-traditional-format transfers. CenturyTel, 

185 F. Supp. 3d at 944–45 (citing Comp. Reform Order at 18002–03, ¶ 934; 

18017–18, ¶ 959). 

In its opening brief here, Sprint did not challenge the court’s preemption 

ruling, nor did it challenge any particular State’s tariff regime as being 

misapplied here, as noted by CenturyLink in its response brief. In that regard, 

CenturyLink stated Sprint “abandoned its preemption argument on appeal”,

and “has come forth with no basis for avoiding its payment obligations under 

any of CenturyLink’s State Access Tariffs”. (Emphasis in original.) In its reply

brief, Sprint contends it “straightforwardly” presented its preemption 

contentions in its opening brief, and that CenturyLink simply appears “not to 

understand”. To support this assertion, however, Sprint cites only the

jurisdictional statement in its opening brief, which invoked “the Constitution 

and laws of the United States, including the Supremacy Clause . . . and the 

Communications Act of 1934”. 

Pressed for clarification during its opening oral argument here, Sprint 

conceded it did not raise the issue, stating “it’s not an argument we’ve made 

here” in response to being asked if it waived preemption; CenturyLink urged 

preemption was therefore waived; and, on rebuttal, Sprint reversed course 

 Case: 16-30634 Document: 00514050733 Page: 10 Date Filed: 06/27/2017
No. 16-30634

11

from its earlier concession and claimed it was not raising on appeal a fieldoccupation preemption theory, but rather its preemption contention is based 

on conflict preemption. In that regard, however, Sprint conceded the reference 

to the Supremacy Clause in its opening brief’s statement of jurisdiction is the 

only manner in which it could be deemed to have raised conflict preemption on 

appeal.

Sprint never raised preemption in its opening brief, and its reply-brief 

efforts are not availing. At best, the issue was insufficiently briefed; at worst, 

abandoned. Under either rubric, Sprint failed to raise preemption on appeal; 

as a result, the state-law tariffs cannot be challenged here. See Cinel v. 

Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“An appellant abandons all issues 

not raised and argued in its initial brief on appeal. . . . A party who 

inadequately briefs an issue is considered to have abandoned the claim.”)

(emphasis in original). 

Even assuming arguendo Sprint’s reply-brief contentions could be 

construed as adequate, “this court will not consider issues raised for the first 

time in a reply brief”. Wright v. Excel Paralubes, 807 F.3d 730, 736 (5th Cir. 

2015). Our court has recognized an exception to this rule “whereby we will 

consider a point of error not raised on appeal when it is necessary to prevent a 

miscarriage of justice”. United States v. Whitfield, 590 F.3d 325, 346–47 (5th

Cir. 2009) (internal quotation marks omitted). Although the general rule is 

“view[ed] . . . differently when a new issue is raised in the appellee’s brief and 

the appellant responds in his reply brief”, United States v. Ramirez, 557 F.3d 

200, 203 (5th Cir. 2009), that exception does not apply here; in its response 

brief, CenturyLink merely points out Sprint’s failure to brief the issue. 

 Case: 16-30634 Document: 00514050733 Page: 11 Date Filed: 06/27/2017
No. 16-30634

12

2.

For the federal tariffs, the key disputes rest in the application, vel non, 

of terms defined under the 1996 Telecommunications Act. According to Sprint, 

the key to resolving this action in its favor is whether its VoIP-to-traditionalformat transfer service qualified as an information service or a 

telecommunications service under 47 U.S.C. § 153. CenturyLink counters that

this distinction is irrelevant; it asserts the proper distinction is between 

interexchange carriers (again, IXCs) and information-service providers, and 

that the FCC’s rulemaking applicable to IXCs requires affirmance. 

a.

The FCC’s Comprehensive Reform Order makes clear the 1996

Telecommunications Act’s grandfather clause maintained the exchange-access

tariff regime, including its tariff rates and exemptions. 26 FCC Rcd. at 18016,

¶ 957 (“[T]o the extent that interexchange VoIP services are transmitted to the 

[local administrator] directly from an information service provider, such traffic

is subject to pre-1996 Act obligations regarding ‘exchange access,’ although the 

access charges imposed on information service providers were different from

those by IXCs.”). Sprint asserts this statement favors its contention: the FCC 

declined to clarify “whether particular VoIP services are telecommunications 

services or information services”, but stated, “because they were subject to 

these exchange access charges, interexchange information service traffic was 

subject to the over-arching [FCC] rules governing exchange access prior to the 

1996 Act, and therefore subject to the grandfathering provision of [47 U.S.C. §]

251(g)”. Id. at 18016–17, ¶ 957. This grandfathering would include the earlierdiscussed enhanced-service exemption, as applied to information services. Id. 

at 18016, ¶ 957.

 Case: 16-30634 Document: 00514050733 Page: 12 Date Filed: 06/27/2017
No. 16-30634

13

According to Sprint, the next step is determining its VoIP-to-traditionalformat transfer service qualified as an information, not a telecommunications,

service. It points to the language of the 1996 Act’s defining information service 

as “the offering of a capability for . . . transforming . . . information via 

telecommunications”. 47 U.S.C. § 153(24). In support, Sprint relies on two 

unpublished district court opinions from outside our circuit, as well as an FCC 

ruling the parties refer to as “IP-in-the-Middle”. See PAETEC Comms., Inc. v. 

CommPartners, LLC, No. 08-0397, 2010 WL 1767193 (D.D.C. 2010); Sw. Bell 

Tel., L.P. v. Mo. Pub. Serv. Comm’n, 461 F. Supp. 2d 1055 (E.D. Mo. 2006); In 

re Petition for Declaratory Ruling That AT&T’s Phone-to-Phone IP Tel. Svcs. 

Are Exempt From Access Charges, 19 FCC Rcd. 7457 (2004) (IP-in-the-Middle). 

Sprint contends these authorities stand for the proposition that, when 

there is a “net protocol conversion” from Internet-protocol format (like VoIP) 

into another format (like traditional format), the service is an “information 

service”. Sprint urges its proposed rule applies here, and states that, because 

the calls at issue originated in VoIP and terminated in traditional format, there 

was a net protocol conversion, making Sprint’s transfer service an information 

service exempted from the tariff rate. 

CenturyLink responds that the distinctions posited by Sprint are 

irrelevant. Instead, CenturyLink maintains, the key distinction is between the 

way the FCC, in its 2011 Comprehensive Reform Order, treats IXCs and 

information-service providers. Paragraph 957 of that order makes this 

distinction in explaining that the rates for IXCs and information-service 

providers were “different”. Comp. Reform Order, 26 FCC Rcd. at 18016, ¶ 957. 

Crucial to this issue, the district court made the following finding of fact: 

“Sprint acts as a telecommunications carrier providing telecommunications 

services as a common carrier and as an interexchange carrier (‘IXC’)”. 

 Case: 16-30634 Document: 00514050733 Page: 13 Date Filed: 06/27/2017
No. 16-30634

14

CenturyTel, 185 F. Supp. 3d at 934–35. The court then stated: “It is Sprint’s 

role as an IXC that is at issue in this case”. Id. Accordingly, the court expressly 

found Sprint to be an IXC for the purposes of this action; that finding, of course,

can only be overturned on a showing of clear error. Hall v. Nat’l Gypsum Co., 

105 F.3d 225, 228 (5th Cir. 1997). But, as noted supra, Sprint does not even

challenge the district court’s findings of fact.

b.

Presented with this factual finding, the FCC’s Comprehensive Reform 

Order controls the outcome if it is entitled to deference under Chevron v. 

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). When 

considering an agency’s interpretation of a statute it is charged with

administering, two questions arise: whether Congress has “directly spoken to 

the precise question at issue”; but if, instead, “the statute is silent or 

ambiguous with respect to the specific issue, the question for the court is 

whether the agency’s answer is based on a permissible construction of the 

statute”. Id. at 842–43. “A court’s prior judicial construction of a statute 

trumps an agency construction otherwise entitled to Chevron deference only if 

the prior court decision holds that its construction follows from the 

unambiguous terms of the statute and thus leaves no room for agency 

discretion.” Brand X, 545 U.S. at 982. 

Along that line, although the two district-court decisions cited by Sprint 

addressed the question now before us, both did so while conceding the FCC’s 

specific guidance would settle the matter. See PAETEC, 2010 WL 1767193, at 

*3 n.3; Sw. Bell, 461 F. Supp. 2d at 1081. Because, for the following reasons,

the FCC’s ruling in its 2011 Comprehensive Reform Order is reasonable, we 

defer to the FCC’s interpretation of the 1996 Act as applied to the issues at 

hand. See Chevron, 467 U.S. at 844.

 Case: 16-30634 Document: 00514050733 Page: 14 Date Filed: 06/27/2017
No. 16-30634

15

The FCC expressly delineates between IXCs and information-service 

providers. In its Comprehensive Reform Order, the FCC frames the issue as 

“whether there was a ‘pre-Act obligation relating to intercarrier compensation 

for’ particular traffic exchanged between a [local administrator] and ‘[IXC] and 

information service providers’”. 26 FCC Rcd. at 18015, ¶ 956. The order states:

“Regardless of whether particular VoIP services are telecommunications 

services or information services, there are pre-1996 Act obligations regarding 

[local administrators’] compensation for the provision of exchange access to an 

IXC or an information service provider”. Id. at 18015–16, ¶ 957. And, the 

order notes “the [FCC] has already found that toll telecommunications services 

transmitted (although not originated or terminated) in [Internet protocol] were 

subject to the access charge regime, and the same would be true to the extent 

that telecommunications services originated or terminated in [Internet 

protocol]”. Id. at 18016, ¶ 957. 

This statement is crucial because it makes clear that telephone calls 

originating in VoIP format can qualify as telecommunications services even if 

they terminate in a different format. Therefore, the net-protocol-conversion 

rule proposed by Sprint fails, and the telecommunications-services-versusinformation-services distinction does not resolve the dispute.

Rather, the decisive distinction is the FCC’s analysis regarding IXCs and 

information-service providers:

[T]o the extent that interexchange VoIP services are 

transmitted to the [local administrator] directly from 

an information service provider, such traffic is subject 

to pre-1996 Act obligations regarding “exchange 

access,” although the access charges imposed on 

information service providers were different from 

those paid by IXCs. Specifically, under the [enhancedservices] exemption, rather than paying intercarrier 

 Case: 16-30634 Document: 00514050733 Page: 15 Date Filed: 06/27/2017
No. 16-30634

16

access charges, information service providers were 

permitted to purchase access to the exchange as end 

users, either by purchasing special access services or 

“pay[ing] local business rates and interstate 

subscriber line charges for their switched access 

connections to local exchange company central offices.”

Id. In other words, IXCs were required to pay the higher tariff rates under the 

pre-1996 regime that was maintained through 47 U.S.C. § 251(g), and 

information-service providers were not. 

During the disputed time period, this grandfathered system governed 

Sprint’s VoIP-to-traditional-format transfer service. And, because the district 

court did not clearly err—as discussed supra—in finding Sprint was operating 

as an IXC in providing this service, rather than as an information-service 

provider, Sprint was obligated to pay the federal tariff rates billed by 

CenturyLink. (Concerning the partial dissent, we do not hold Sprint

Communications Company, L.P., is only an IXC; of course, it provides a wide 

variety of services. Here, however, we are bound by the district court’s 

undisputed finding that Sprint functioned as an IXC in administering the 

transfer service at issue.)

B.

As noted, the court imposed, inter alia, attorney’s fees against Sprint for 

violating § 201(b) of the 1996 Telecommunications Act. That provision

dictates: “All charges, practices, classifications, and regulations for and in 

connection with [a] communication service, shall be just and reasonable, and 

any such . . . practice . . . that is unjust or unreasonable is declared to be 

unlawful”. 47 U.S.C. § 201(b). A private right of action is available for 

“person[s] claiming to be damaged by any common carrier subject to” the 1996

Act, and damages may be recovered. Id. § 207. An entity found liable for 

 Case: 16-30634 Document: 00514050733 Page: 16 Date Filed: 06/27/2017
No. 16-30634

17

violating the Act “shall be liable to the person . . . injured thereby for the full 

amount of damages sustained in consequence of any such violation . . . together 

with a reasonable counsel or attorney’s fee”. Id. § 206.

The district court ruled “[t]he FCC has recognized that self-help is an 

unlawful telecommunications practice”. CenturyTel, 185 F. Supp. 3d at 945

(citing In re Bus. WATS, Inc., 7 FCC Rcd. 7942 (1992); In re MCI Telecomm. 

Corp., 62 F.C.C. 2d 703, 706 (1976)). Accordingly, the court concluded Sprint 

violated § 201(b) when it “unjustly and unreasonably withheld payments . . . 

to reduce its retroactive refund claim”. Id. at 946. 

In challenging this conclusion, Sprint asserts “the FCC expressly 

interpreted section 201(b) to hold that a failure to pay a tariffed charge does 

not violate the provision”, citing All American Telephone Co., et al. v. AT&T 

Corp., 26 FCC Rcd. 723, 727 (2011). Moreover, it contends, the FCC has never 

held “self-help” constitutes a § 201(b) violation, also citing All American

Telephone, 26 FCC Rcd. at 729. 

CenturyLink agrees Sprint’s withholding the disputed amounts 

prospectively did not violate the 1996 Act. On the other hand, CenturyLink 

takes issue with Sprint’s clawing-back retroactively-disputed amounts it had 

already paid by deducting them from undisputed charges billed by 

CenturyLink. 

a.

The deductions, which began in July 2009, were based on estimates 

calculated by a Sprint engineer. CenturyTel, 185 F. Supp. 3d at 937. Before 

August 2009, however, Sprint never provided the exact or estimated minutes 

of VoIP-originated calls it transferred to CenturyLink for termination. Id. at 

936. Moreover, Sprint’s estimate was based solely on its engineer’s review of 

VoIP-originated versus traditional-format-originated calls delivered to 

 Case: 16-30634 Document: 00514050733 Page: 17 Date Filed: 06/27/2017
No. 16-30634

18

CenturyLink during the month of February 2009, with that amount applied

each month during the August 2007 to July 2009 disputed period. Id. at 937. 

Quoting In re Business WATS, CenturyLink asserts a customer in 

Sprint’s position “is not entitled to the self-help measure of withholding 

payment for tariffed services duly performed but should first pay, under 

protest, the amount allegedly due and seek redress”. The proper procedure, 

according to CenturyLink, was to initiate a grievance proceeding with the FCC 

pursuant to 47 U.S.C. § 208. 

The FCC has not squarely addressed the propriety of the claw-back 

scheme Sprint utilized, and at issue are the terms “unjust or unreasonable”. 

See id. § 201(b). For the reasons that follow, Sprint violated the Act’s 

prohibition against “practices” that are “unjust or unreasonable”. 

While it is true the FCC stated “[t]he law is settled that a carriercustomer’s failure to pay tariffed access charges does not violate” the statute, 

the practices at issue in that matter are not contested here. All Am. Tel., 26 

FCC Rcd. at 732, ¶ 21. There, a local administrator claimed AT&T “engaged 

in ‘unlawful self-help’ . . . by failing to bring a ‘rate complaint’ against the [local 

administrators] if AT&T believed their access charges were unlawful and 

instead refusing to pay the charges”. Id. at 726, ¶ 7. There was no allegation 

that AT&T retroactively deducted, from undisputed invoices, amounts already 

paid. In fact, AT&T alleged payments it made for a few invoices were “paid by 

mistake” and “requested a refund”. Id. at 725, ¶ 4.

Moreover, as the district court correctly determined, FCC precedent 

makes clear “self-help” is not necessarily permissible. See In re MCI 

Telecomm., 62 F.C.C. 2d at 705–06 (“We cannot condone MCI’s refusal to pay 

the tariffed rate for voluntarily ordered services.”). The District of Columbia

circuit, exercising its jurisdiction over FCC appeals, instructed: “Any carrier 

 Case: 16-30634 Document: 00514050733 Page: 18 Date Filed: 06/27/2017
No. 16-30634

19

that engages in self-help . . . runs the risk that the [FCC] will find against it –

even if its underlying position is vindicated – and hold it liable solely for 

engaging in self-help”. AT&T Corp. v. FCC, 317 F.3d 227, 234 (D.C. Cir. 2003). 

In that action, the D.C. circuit affirmed the FCC’s ruling no violation occurred

when AT&T blocked calls from its customers to those under the administration 

of a “sham” local administrator charging rates it was not entitled to impose, 

and refused to pay for ten million minutes of calls already terminated. Id. at 

231. The D.C. circuit made clear, however, the facts at issue there fit “the 

seemingly narrow exception [to the prohibition against self-help] for [refusing 

payment to] a sham entity charging an unreasonable rate”. Id. at 234. Here, 

there is no allegation of bad faith in CenturyLink’s billing Sprint at tariff rates.

b.

The FCC’s determination that improper “self-help” can be a violation of 

the 1996 Telecommunications Act is a reasonable application of § 201(b)’s 

prohibition against “unjust or unreasonable” practices, and we accord it 

deference. See Chevron, 467 U.S. at 844. Because the FCC has not squarely 

addressed Sprint’s claw-back practice, however, the question is the proper 

application of the statute’s language and the guidance provided by the FCC to 

the facts at hand. 

Here, Sprint took the extraordinary measure of acting on its own to 

recoup money it had already paid without any judicial or administrative 

intervention. The parties’ stipulated facts establish that, for more than two 

years, Sprint withheld payments to CenturyLink for undisputed traditionalformat-to-traditional-format calls until Sprint had recovered $4.8 million. 

Moreover, Sprint’s utilization of one month’s worth of calls as applicable to all 

months during a two-year period, without adjustment for seasonal calling 

trends or other extrapolation, was not reasonable. Accordingly, Sprint’s 

 Case: 16-30634 Document: 00514050733 Page: 19 Date Filed: 06/27/2017
No. 16-30634

20

retroactive claw-back against undisputed charges based on unreasonable 

estimates constitutes unlawful self help, in violation of 47 U.S.C. § 201(b). 

III.

For the foregoing reasons, the judgment is AFFIRMED. 

 Case: 16-30634 Document: 00514050733 Page: 20 Date Filed: 06/27/2017
No. 16-30634

21

STEPHEN A. HIGGINSON, Circuit Judge, concurring in part and dissenting 

in part:

The majority opinion concludes that because Sprint is an interexchange 

carrier (“IXC”) (1) it cannot be an information service provider, (2) it cannot 

benefit from the ESP exemption, and accordingly, (3) it must pay the tariff 

rates on its VoIP services. Each conclusion contravenes longstanding 

precedent holding that IXCs can provide information services, and when they 

do, they can benefit from the ESP exemption. I thus respectfully dissent from 

Part II.A.2 and II.B of the majority opinion. 

First, an IXC can also be an information service provider (that is, the 

IXCs can provide information services). The FCC has long recognized that 

IXCs can provide information (or before 1996, enhanced) services.1 And in line 

 

1 See, e.g., In Re Policy & Rules Concerning Interstate, Interexchange Marketplace, 16 F.C.C. 

Rcd. 7418, 7442 (¶ 40) (F.C.C. 2001) (“[C]arriers not subject to the separate subsidiary 

requirement [the Bell Operating Companies] acquire transmission capacity pursuant to the 

same prices, terms, and conditions reflected in their tariffs when their own facilities are used, 

does not prohibit them from offering packages of telecommunications service, including 

interstate, domestic, interexchange service or local exchange service, and enhanced services 

at a single price.”); Policy & Rules Concerning the Interstate, Interexchange Marketplace 

Implementation of Section 254(g) of the Commc’ns Act of 1934, 13 F.C.C. Rcd. 21531, 21552 

(¶ 39) (F.C.C. 1998) (“We seek comment on whether there are any anticompetitive effects of 

allowing nondominant interexchange carriers to bundle, or provide discounts on packages of, 

enhanced services and interstate, domestic, interexchange services, when such services, in 

turn, are packaged with local exchange services.”); Policies & Rules Implementing the Tel. 

Disclosure & Dispute Resolution Act, 8 F.C.C. Rcd. 6885, 6892 n. 62 (¶ 40) (F.C.C. 1993) (“We 

also note that an IXC who is also an IP [information provider] may not tariff the charge for 

the information service, as this would violate the prohibition against an IXC tariffing its 

enhanced services.”); Mountain States Tel. & Tel. Co., Nw. Bell Tel. Co., Pac. Nw. Bell Tel. 

Co. Petition for Waiver of Section 64.702 of the Comm’n’s Rules & Regulations to Provide 

Protocol Conversion as an Adjunct to a Basic Packet Switched Network, 3 F.C.C. Rcd. 3135, 

3137 (¶ 11) (F.C.C. 1988) (“[I]f an interexchange carrier also provides an enhanced service in 

conjunction with packet switching, it would be afforded the protections established in the 

Protocol Waiver Order the same as any other competitive enhanced packet service 

provider.”); Pleading Cycle Established for Comments on Amendment to Bellsouth’s Plan for 

Comparably Efficient Interconnection for Voice Messaging Servs., 3 F.C.C. Rcd. 5584, 5584 (¶ 

2) (F.C.C. 1988) (“These network services will be made available to all local exchange 

 Case: 16-30634 Document: 00514050733 Page: 21 Date Filed: 06/27/2017
No. 16-30634

22

with those precedents, the FCC has specifically noted that Sprint offers 

information services. Policies & Rules Implementing the Tel. Disclosure & 

Dispute Resolution Act, 9 F.C.C. Rcd. 6891, 6893 (¶ 14) (F.C.C. 1994); 

Application for Consent to Assignment of Licenses & Transfer of Control of 

Certain Subsidiaries of GTE Corp. & United Telecomms., Inc. to U.S. Sprint 

Commc’ns Co., 1752-CF-AL-(534)-86, 1986 WL 291870, at *4 (F.C.C. June 18, 

1986). 

Second, when an IXC offers information services, it benefits from the 

ESP exemption. 47 C.F.R. § 69.5 (“Carrier’s carrier charges shall be computed 

and assessed upon all interexchange carriers that use local exchange switching 

facilities for the provision of interstate or foreign telecommunications services.” 

(emphasis added)); Petition for Declaratory Ruling That AT&T’s Phone-toPhone IP Telephony Servs. are Exempt from Access Charges (“IP in the 

Middle”), 19 F.C.C. Rcd. 7457, 7465 (¶ 14) (F.C.C. 2004) (“Under our rules, 

access charges are assessed on interexchange carriers that use local exchange 

switching facilities for the provision of interstate or foreign telecommunications 

services.” (emphasis added)). Indeed, the FCC expressly rejected the majority 

opinion’s view that the ESP exemption cannot benefit IXCs. See In the Matters 

of Nw. Bell Tel. Co. Petition for Declaratory Ruling & Wats Related & Other 

Amendments of Part 69 of the Comm’n’s Rules., 7 F.C.C. Rcd. 5644, 5645 (¶ 5)

(F.C.C. 1992) (“Nw. Bell Tel.”); In the Matter of Wats Related & Other 

Amendments of Part 69 of the Comm’n’s Rules, 3 F.C.C. Rcd. 496, 497 (¶ 10)

(F.C.C. 1988). The FCC explained:

 

customers on an optional basis, including interexchange carriers using those facilities to 

provide enhanced services.”); see also United States v. GTE Corp., 603 F. Supp. 730, 733 

(D.D.C. 1984) (“The decree in this case, by contrast, permits GTE to enter the interexchange 

business (by acquiring Sprint) and to remain in the information services business even 

though it will also continue to engage in the local telephone business.”).

 Case: 16-30634 Document: 00514050733 Page: 22 Date Filed: 06/27/2017
No. 16-30634

23

[A commenter] argues that this Commission 

exempted enhanced service providers, rather than 

enhanced services, from interstate access charges and 

that [an IXC] should not receive an access charge 

exemption even when it is offering enhanced services. 

This argument misconstrues our rules. Under those 

rules entities that offer both interexchange services 

and enhanced services are treated as carriers with 

respect to the former offerings, but not with respect to 

the latter. Thus, interexchange carriers . . . are 

eligible for an interstate access charge exemption for 

their enhanced service offerings. Although the access 

charge orders refer to “enhanced service providers,” we 

have never limited that category to entities that 

provide only enhanced services. Rather, any entity 

that actually provides enhanced services should be 

treated as an “enhanced service provider,” regardless 

of any other services that entity might provide.

Nw. Bell Tel., 7 F.C.C. Rcd. at 5645 (¶ 5). And the FCC’s decision that an IXC 

providing information services can be regulated like an information service 

provider is consistent with both the FCC’s and the courts’ longstanding view 

that “one can be a common carrier with regard to some activities but not 

others.” Nat’l Ass’n of Regulatory Util. Comm’rs v. F.C.C., 533 F.2d 601, 608 

(D.C. Cir. 1976); accord Verizon v. F.C.C., 740 F.3d 623, 653 (D.C. Cir. 2014);

Cellco P’ship v. F.C.C., 700 F.3d 534, 538 (D.C. Cir. 2012); In the Matters of 

Amendment of Sections 64.702 of the Comm’n’s Rules & Regulations (Third 

Comput. Inquiry), 2 F.C.C. Rcd. 3035, 3060–61 (¶ 179) (F.C.C. 1987), vacated 

and remanded on other grounds sub nom. California v. F.C.C., 905 F.2d 1217 

(9th Cir. 1990).

These twin errors result in the majority opinion’s adopting a rule of 

decision that has never been blessed by either the FCC or another court. Every 

other case or administrative decision to decide whether a VoIP service provider 

 Case: 16-30634 Document: 00514050733 Page: 23 Date Filed: 06/27/2017
No. 16-30634

24

was required to pay tariff rates or rates pursuant to the ESP exemption focused 

on the specifics of the VoIP service at issue to determine whether it was an 

information service or a telecommunication.2 The majority opinion is alone in 

focusing on whether the VoIP provider happens to be an IXC. Indeed, even the 

Comprehensive Reform Order, the only authority the majority cites, indicates

that determining which payment regime governs VoIP services depends on the 

“particular traffic exchanged between a LEC and interexchange carriers and 

information service providers.” Comp. Reform Order, 26 F.C.C. Rcd. 17,663, 

18,015 (¶ 956) (F.C.C. 2011) (emphasis added) (quotations and citations 

omitted).

Moreover, the majority opinion’s justification for its unique approach is 

thin. The majority opinion exclusively relies on one paragraph of the 

Comprehensive Reform Order, paragraph 957, which provides: 

[T]o the extent that interexchange VoIP services 

are transmitted to the LEC directly from an 

information service provider, such traffic is subject to 

pre-1996 Act obligations regarding “exchange access,”

although the access charges imposed on information 

service providers were different from those paid by 

IXCs. Specifically, under the ESP exemption, rather 

than paying intercarrier access charges, information 

service providers were permitted to purchase access to 

the exchange as end users, either by purchasing 

special access services or “pay[ing] local business rates 

and interstate subscriber line charges for their 

 

2 See, e.g., Charter Advanced Servs. (MN), LLC v. Lange, 15-cv-3935 (SRN/KMM), 2017 WL 

1901414, at *5 (D. Minn. May 8, 2017); PAETEC Commc’ns, Inc. v. CommPartners, LLC, No. 

08-0397(JR), 2010 WL 1767193, at *3 (D.D.C. Feb. 18, 2010); Sw. Bell Tel., L.P. v. Mo. Pub. 

Serv. Comm’n, 461 F. Supp. 2d 1055, 1082 (E.D. Mo. 2006), aff’d, 530 F.3d 676 (8th Cir. 2008); 

Vonage Holdings Corp. v. Minn. Pub. Utils. Comm’n, 290 F. Supp. 2d 993, 999 (D. Minn. 

2003); IP in the Middle, 19 F.C.C. Rcd. at 7465–66 (¶¶ 12–14); Petition for Declaratory Ruling

(Pulver), 19 F.C.C. Rcd. 3307, 3314 (¶¶ 12–14) (F.C.C. 2004); Fed.-State Joint Bd. on 

Universal Serv., 13 F.C.C. Rcd. 11501, at * 28 (¶¶ 86–88) (F.C.C. 1998).

 Case: 16-30634 Document: 00514050733 Page: 24 Date Filed: 06/27/2017
No. 16-30634

25

switched access connections to local exchange 

company central offices.” 

Comp. Reform Order, 26 F.C.C. Rcd. at 18,015–16 (¶ 957). The majority 

opinion seizes on paragraph 957’s statement that IXCs paid different exchange 

access rates than information service providers. In doing so, the majority 

opinion ignores the longstanding FCC authority that permitted IXCs to benefit 

from the ESP exemption when they provided information services (that is, 

acted as information service providers). Nothing in Paragraph 957 was 

intended to depart from this settled rule. On its face, Paragraph 957 is a 

historical description of the pre-1996 regulatory regime, not an announcement 

of a new regulatory policy. Accordingly, in my view, the better reading of 

Paragraph 957 is that it accurately described the established regulatory 

regime: IXCs paid tariff access charges when they acted as IXCs and paid the 

ESP exemption rate when they acted as information service providers. 

And unfortunately, the majority opinion’s interpretation is not costless;

it contravenes the FCC’s policy decisions. Providing the ESP exemption to only 

non-IXCs “raise[s] questions of discrimination and would bestow an unfair 

advantage on non-carrier competitors.” Nw. Bell Tel., 7 F.C.C. Rcd. at 5645 

(¶5). For this reason the FCC has been careful to ensure that its decisions 

classifying VoIP services do not place IXCs at competitive disadvantages. See

IP in the Middle, 19 F.C.C. Rcd. at 7469–70 (¶ 19) (“Commenters argue that it 

is inequitable to impose access charges on AT&T’s specific service if access 

charges do not apply to other types of IP-enabled voice services. The 

Commission is sensitive to the concern that disparate treatment of voice 

services that both use IP technology and interconnect with the PSTN could 

have competitive implications. . . . [O]ur ruling here should not place AT&T at 

 Case: 16-30634 Document: 00514050733 Page: 25 Date Filed: 06/27/2017
No. 16-30634

26

a competitive disadvantage.”).

Consequently, I would remand to the district court to determine whether 

the VoIP calls here are information services or telecommunications. The 

district court did not reach the issue, holding instead that because Sprint owed 

CenturyLink access charges regardless of whether the VoIP calls were a 

telecommunications or an information service, Sprint was required to pay 

CenturyLink’s tariffs. I believe that this district court’s holding is also 

erroneous.

Under Section 251(g) Sprint was required to pay CenturyLink in 

accordance with pre-1996 law. The district court correctly found that before

1996, Sprint owed CenturyLink access charges regardless of whether Sprint 

was providing telecommunications or information services. Comp. Reform 

Order, 26 F.C.C. Rcd. at 18,015–16 (¶ 957) (“Regardless of whether particular 

VoIP services are telecommunications services or information services, there 

are pre-1996 Act obligations regarding LECs’ compensation for the provision 

of exchange access to an IXC or an information service provider.”). But the 

district court erred in concluding that the access charge Sprint owed must have 

been the tariffed rate. Instead, if the VoIP calls are information services, 

Sprint’s access charge would be an end user rate set pursuant to the ESP 

exemption. Id. at 18,016 (¶ 957) (“Similarly, to the extent that interexchange 

VoIP services are transmitted to the LEC directly from an information service 

provider, such traffic is subject to pre-1996 Act obligations regarding ‘exchange 

access,’ although the access charges imposed on information service providers 

were different from those paid by IXCs. Specifically, under the ESP exemption, 

rather than paying intercarrier access charges, information service providers 

were permitted to purchase access to the exchange as end users, either by 

purchasing special access services or ‘pay[ing] local business rates and 

 Case: 16-30634 Document: 00514050733 Page: 26 Date Filed: 06/27/2017
No. 16-30634

27

interstate subscriber line charges for their switched access connections to local 

exchange company central offices.’”(emphases added)).

This error is understandable. The FCC “at times has used the term 

‘access charges’ colloquially as synonymous with carrier’s carrier access 

charges [charges at the telecommunications rate], notwithstanding the fact 

that access charges actually encompass a broader category of charges.” Id. at 

18,016 n.1961. However, properly understood, “access charge” refers to both 

the tariff rate IXCs pay to LECs and the end user rate that subscribers pay to 

LECs (including entities that pay a subscriber rate under the ESP exemption). 

See, e.g., id. at 18,015–16 (¶ 957); Petitions of Qwest Corp. for Forbearance 

Pursuant to 47 U.S.C. § 160(c) in the Denver, Minneapolis-St. Paul, Phx., & 

Seattle Metro. Statistical Areas, 23 F.C.C. Rcd. 11729, 11748 (¶ 25) (F.C.C. 

2008); Deployment of Wireline Services Offering, 15 F.C.C. Rcd. 385, 406 (¶ 45) 

(F.C.C. 1999), vacated in part on other grounds sub nom. WorldCom, Inc. v. 

F.C.C., 246 F.3d 690 (D.C. Cir. 2001); Mts & Wats Mkt. Structure, 93 F.C.C.2d 

241, 250 (¶ 23) (F.C.C. 1983).

The district court failed to determine whether Sprint was required to pay 

CenturyLink’s tariffs or end user access charges under the ESP exemption. 

Because this determination governs the rates that Sprint owed to 

CenturyLink, I would vacate the district court’s conclusion as to the federal 

tariff claim and remand to the district court. Likewise, because the district 

court’s Section 201(b) ruling is contingent on a federal law violation, I would 

vacate and remand that claim as well. 

I respectfully dissent in part.

 Case: 16-30634 Document: 00514050733 Page: 27 Date Filed: 06/27/2017