### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE May 3, 1999 Sess

ion
BELLSOUTH AD

VERTISING & P

UBLISHING COR

PORATION v. TENNESSEE REGULATORY AUTHORITY, ET AL 

### . Appeal from the Tennessee Regulatory Authority

at Nashville, Tennessee Nos. 96-01692 & 98-00654

No. M1998-00987-COA-R12-CV & M1998-01012-COA-R12-CV

Filed February 16, 2001

In these cases consol ida ted on appeal, Bellsouth Advertising & Publishing Corporation (BAPCO) appealsfrom the action of the Tennessee Regulatory Authority re

quiring it to bran

d the covers of its “White Pages Directory” with the names and commercial log os of local tel ecom munication comp anies in competiti on with its p arent cor poration B ellsouth T

elecommu

nications , Inc. (

BST). We reverse the judgment of the Tennessee Regulatory Authority. Judge Cottrell dissents. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Tennessee Regulatory Authority Reversed

W ILLI AM B. C AIN , J., delivered the opinion of the court. W ILLI AM C. K OCH , J R ., J., filed a concurring opinion withJudge Cain specifically concurring in Part VI thereof. P ATRICIA J. C OTTRELL , J., filed a dissenting opinion.
Paul S. Davidson and Guilford F. Thornton, Jr., Nashville, Tennessee, and James F. Bogan, III

and Daniel J. Thompson, Jr., Atlant a , Georg ia, for the appellant, Bellsouth Advertising & Publishing Corporation. Henry Walker and K. David Waddell, Nashville, Tennessee, for the appellees, Nextlink Tennessee, L.L.C . an d Te nne sse e Re gula tor y Aut hor ity.
OPINION

This case represents the consolidation of two different, bu

t intricately

linked, administrative appealsconcerning BellSouth Advertising & Publishing Corporation (BAPCO). The first, BellSouth Advertising and Pubublishing Corp. v. Tennessee Regulatory Authority, et al (t he AT&T c ase hereinafter) concerned

a claim originally brought by American Telephone & Telegraph, Inc. (AT&T) seeking to have its name and logo placed on the covers of the “White Pages” directories published-2-

by BAPCO. By order entered March 19, 1998, the Tenne ssee Regulatory Authority (TRA) Require d BAPCO to place AT&T’s name and logo on the cover of its “White Pages”.

The aforementioned AT&T declaratory order was interpreted and applied in a proce e ding wherein NEXTLINK L.L

.C., and similar ly situated telecommunications companies sought to “brand” BAPCO’s “White

Pages” cover

along with AT&T . Because of the substantial similar

ity of the issu

es, these two cases were consolidated for consideration in t

his court. While ce

rtain issues raised in the Nextlink case are

of no consequence in the AT&T case, and thus must be considered separately, the crucial issues a

re common to both ca

ses.
This crucial, sub-constitutional issue presents thequestion of whether or not the TRA, under Te nnes see law and Tennesse e Regulatory

Authority Rul

e 1220-4-2-.15, c

an compel BellSou

th Advertising and Publishing Corporation t o displ ay, on the cover of its “White Pages” telephone dir ect ory, the name and commercial logo of local telecommunication companies that are competitors of BellSouth Telecommunications, Inc., giving such competing names and commercial logos equal prominence with the “BellSouth” name and logo.

I. HISTORICAL BACKGROUND

In the decade of the 1990's, many states, including Tenn essee, were running le

gislatively parallel to the Congress of the United States in converting, from a monopoly environment to a competitive envir

onment, the providi

ng of local tele

phone services.

On January 25, 1999, the United States Supreme Court issued its decision in AT&T Corp. v. Iowa Utilities Bd. , 525 U.S. 366 (1999) . This decision was a deta iled const

ruction of the Telecommunications Act of 1996, 47 U.S.C. § 251 e t se q. Justice Thomas, concurring in part and dissenting in part, traced the history of telecommunications in the United States and the effect of the Telecommunications Act of 1996.

From the time that the commerc ial offering of telephone service began in 1877 until the expiration of key patents in 1893 and 1894, A lexander Graham Bell's telephone company--which came to be known as the American Tele phone and Telegraph Company--enjoy ed a monopoly. In the decades that followed, thousands of independent phone companies emerged to fill in the gaps left by the telephone giant and, in most larger markets, to build rival networks in direct competition with it. As competition developed, many municipal iti es began to adopt ordinances regulating telephone service. During the 1900's, state legislatures came under increasing pressure to centra lize the regulation of telephone service. A lthough the quasicompetitive system had
s ignificant

drawbacks from the consumers' standpoint--principally the re fu sal o f competing systems to inte rconnect--per

haps the stronge

st advocate of stat

e regulation1 As this e xtensi ve quotat

ion is f or hist orical ba ckground,many cit

ations of supporting authority in the opini on have been omi

tted.
-3- was AT&T itself. The company's arguments that telepho ne service was naturally monopolistic and that competition was resulting in wasteful duplication of facilities appealed to Progressive-

era legislatur

es. By 1915 , most States had est ablished public utility commissions and charged them with regulating telephone service. Over time, the Bell Companies' policy of buying out independent pr

oviders coupled w

ith the state commissions' practice of prohibiting co mpetitive entry

led back to the mono

poly provision of local telephone service.

. . . . In the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq. , Congress transferred authority over interstate communications fr om the ICC to the newly created Federal Communi cations Commission (FCC or Commission). As in the Mann-Elkins Act, Congress chose not to displace the States' authority over intrastate communications. . . . Congress enacted the Telecommunications Act of 1996 (Act), Pu b. L. 104-104, 110 Stat. 56, against this backdrop. To be sure, the 1996 A ct marked a significant change in federal tel e-co mmu nic ati ons pol icy. Most important, Congress ended the States' longstanding practice of granting and maintaining local exchange monopo lies. It also required incumbent

local exchange carriers to allow their competitors

to access their faciliti es in three differe nt ways. . . . [I

]ncumbents must: inte

rconnect their networks with requesting

carriers' fa

cilities and equipment, provide nondis criminatory
accessto network elemen ts on an unbundled ba

sis at an y t echnically

feasible point, and offer to resell at wholesale rates any telecommunications service that they provide to subscribers who are not telecommunications carriers. The Act sets forth additional obligations applicable to all t elecommunication

s carriers and a

ll lo ca l exchange carriers. To facilitate rapid transition from monopoly to competitive provision of local telephone service, Congress set forth a process to ensure that the incumbent and competing carriers fulfill these obligations.

Section 252 sets up a preference for negotiated interconnection agre ements. To the extent that the incumbent and competing carriers cannot agree, the Act g ives the state commissions primary responsibility for med i ating and arbitr

ating agree

ments. Spe cif ica lly, Congress directed the state commissions to mediate di sput es between carriers during the voluntary negotiation period and--after the neg otiations have run their course--to arbitrate any “open issues.” I n conducting the se arbitra tions, state commissions are directed to ensure that open issues are resolved in

accordance w

ith the requirements of

§251, “establish . . . rates for interconnection, services, or network elements” according to the standards that Congress set forth in §252(d), and to provide a schedule for implementing the agreement reached during a rbitration. 1-4-

AT&T Corp., 525 U.S. at 402-06. (Thomas, J., concurring in part and dissenting in part).

While both cases at bar

are based on Ten

nessee law, it is w

ell to note that this d

ispute firs t came before the TRA in 1996 when American Telephone and Telegraph Company filed a petition for arbitration against BellSou th Telecommunica

tions, Inc. (BST), the incumbent local exchange carrier, under section 252 of the F

ederal Teleco

mm unicatio ns Act of 1996. In this action, AT&T asserted that the T R A should resolve, under the federal act, the

question of whethe

r AT&T had the r

ight to have its com merci al logo displayed on the cover of directories published by BAPCO for BST. Following the le ad of Georgi a (Georgia PSC D ocket No. 6801-U S ept. 26, 1996), Mas sachusetts (Order of Massachusetts DPU in NYTEX/AT&T/MCI/Sprint Arbitration Dec. 4, 1996), and North Carolina (Order of North Carolina Utilities Commission in AT&T/BST Arbitration Dec. 23, 1996), the TRA held that the directory cover issue was not ar bi trable under the federal act and stated that “private negotiations are the preferred method of resolving this issue, and the parties are encouraged to resolve th is matter t hrough nego tiation.” Private negotia tions, however, r

eached an impas se because AT&T would not agree to cease the display of its com mercial logo on the covers of directories published by competitors of BAPCO.

II. CHRONOLOGY OF THE TENNESSEE LI TIGATION

BAPCO is a wholly owned subsidiary of BellSouth Enterpr

ises, Incorp

orated, which is it

self
a wholly owned s ubsidiary of Be llSouth C orporatio n. BST is th e “incumben t local ex change telephone company” as defined in our state act, Tennes see Code An notated section 65-4-101(d) (1999) and is also a wholly owned subsidiary of B ellSouth Corporation.

AT&T and

interveners Nextlink

Tennessee, L.L.C. (Nextlink), M.C.I. Telecommunications Corporation (MCI), and Am erican Communica

tions Services,

Inc. ( ACSI) are “competing telecommunications service providers” within the meaning of Tennessee Code Annotated section 65- 4-101(e).

Both federal law [47 U.S.C. §271(c)(2 )(B)(vii i)] and Tennessee law [Tenn .Code Ann. § 65-4- 124(c)] require BST

to publish a directory of “White Pages”, containing not only the names of its own subscribers but alsothe names of subsc ribers of compet

ing carriers.

It is undisputed

that the “White Pages”of BellSouth are published in full compliance with both federal and state law. Th e “White Pages”directories required of BellSouth Telecommunications Company are, i n fact, pu blished by BAPCO under contract w it h BST. The issues in this case inv olve only the

covers of BellSo

uth “White Pages” dir

ectories.

The Tennessee legislative parallel to theTelecommunications Act of 1996 actually predates the federal act. Chapter 408 of the Public Acts of 1995 became effective on Ju ne 6, 1995. This Te nne ssee act amended sev eral sections of

Title 65 of the Ten

nessee Code and e

stablished certa

in
new sections relative to the regulation of telecommunications carriers in Tennessee. See Tenn. Code Ann. §§ 65-5-208 to -213 (1999).-5-

Following the refusal of the TRA to arbitrate the “cover” issueunder the federal act and the failure of negotiations betwee n th e parties, AT&T filed its petition for a declaratory ruling on December

16, 1996. This

proceeding sought a decision from the TRA as to whether Tennessee Code Annotatedsections 65-4-104, 65-4-114(1), 65 -4-117(3) and 65 -4-122(c), alo ng with TRA Ru le 1220- 4-2-.15 a pply to the covers of “White Pages” telephone directories, published and distributed on behalf of BST by BAPCO and containing the names and telephone numbers of customers of AT&T. In its petition, AT&T requested the TRA to convene a conte sted case under

Tennessee law w

ith BAPCO and BST as partie s respondent. AT&

T sought a decisi

on from TRA

regarding w

hether this statutory and rule authority required BAPCO to place AT&T's name and logo on the covers of such directories.Ther eafter, TRA convened a contested case pursuant to Tennessee Code Annotated section 4-5-223 and Tennessee Code Annotated section 65-2-104. In its petition, AT&T asserted:
[T]he TRA [should] issue a declaratory order declaring that telephone director ies are
an essential aspect of the telephone or teleco mmunicat ions services of telephone utilities such as BST; and that the covers of directories, published and distributed by BAPCO on behalf of BST which include the names and numbers of customers of AT&T, must be nondiscriminatory and competitively neutral, and either must include the name and logo of AT&T in like manner to the name and logo of BST, or include no company's name and logo, including the name “B ellSouth.”

In Re: Petition of AT&T for Declaratory Order , Petition of AT&T to the Tenn. Regulatory Auth., No. 96-01692 (filed Dec. 16, 1996). By order dated February 20, 1997, TRA grante d the request of AT&T to convene a contested case proceeding with BST and BAPCO as party

respondents. I

n the process,

the TRA also granted intervention to MC I, ACSI and Nextlink so that each party

would have an oppo

rtunity to pa

rticipate in the proceeding. On July 17, 1997, the hearing was held before the TRA. On September 23, 1997, the TRA publicly delibe

rate d and announced i

ts decision. On Mar

ch 19, 1998, the TRA

issued its order holding that TPSC

Rule 1220-4-2-.15

required the app

earance of the

name and logo of AT&T
on the cover of the “White Pages” director y published by

BAPCO under the same terms and conditions as were provided to BST by contract. O n May 15, 1998, BAPCO filed its Petition for Review in this cour

t.

III. THE DECISI

ON OF TRA

TRA Rule 1220-4-2- .15 provides in its e ntirety as f

ollows: (1) Telephone directories shall be regularly published, listing the name[,] address, and telephone num ber of all c

ust omers, except publi

c telephones and nu

mber unlisted at cu

stomer's reque

st.-6-

(2) Upon issuance, a copy of each directory shall be d istribut ed to all customers served by that

directory and a copy of each directory shall be furnished to the Co

mmission upon reque

st. (3) The name of

the telephone utility, the area included in the directory and the month and ye

ar of issue shall

appear on the front cover. Information

pertaining to em

ergency calls such as f

or the police and fire departments shall appear con spicu ously in the front part of the directory pages. (4) The directory shall contain such instructions concerning placing local and long distance c

alls, calls to

re pair and information services, and location of telephone company business offices as may be appr

opriate to t he ar ea se rved by th e di rect ory. (5) Information

operator s s hall have acce ss to records whic

h include all listed telephone number s (except telephon

e numb ers n ot listed or published at customer requ est)in the area

for which they

are responsible for furnishing information service. (6) In the event of an error in the listed number of any customer, the telephone utility shall intercept all calls to the listed number for a reasonable

period of time provided existing central office equipment will permit and the number is not in service. In the event of an error or omission in the name listing of a customer, suc h customer's correct name and telephone number shall be in the files of the information or intercept operators and the correct number furnished the calling party either upon request or interception. (7) Whenever

any cust omer's telephon e number is changed after a directory is published, the utilit

y shallintercept all calls to the former number for
a reasonable

period of time, and give the calling party the new number providedexisting central office equipment will permit, a nd the custom er so d esi res . Pr ovi ded , ho wev er, t he t ele pho ne u til ity ma y refuse to take such action for good and sufficient reason. (8) When additions or changes in plant, reco rds or operations which will necessitate

a large group of number changes are scheduled,

reasonable notice s hall be given to all customers so affected even though the additions or changes may be coincident with a directory issue. (9) The ins ide cover of the directory all contain the Commission ' s telephone number: 1-800-342-8359 (toll free).

This rule, adopted in 1968, long before federal and state statutory policy c hanges mandating the conversion from a

monopolistic envir

o nment to a competitive environment in the provision of local telephone servic

es, provides only

that the cover of the “Whit e Pages” direc

tory should di

sclose the name of the telephone utility, the area included in the directory , and the month and year of issue of the directory. In the monopoly environment of 1968, there was only one tele phone utility; that-7-

utility was the only

local service pr

ovider, and thus,

it was the only telephone utility locally serving the customers listed in the directory. The policy o

f the Tennessee

Telecommunicati

ons Act of 1995 is sta

ted as follows:

The general asse

mbly declar

es that the policy

of this state is to foster

the development of an efficient, technologically advanced, statewide system of telecommunicat ion s serv ice s by permitting competition in all telecommunications services markets, and by permitting alter

native forms of re

gulation for tel

ecommunications s

e rvices and telecommuni ca tions services provide rs. To that end, the

regulation of te

lecommunications serv ices and telecommunications services providers shall protect the interests of consumers without unreasonabl e prejudice or disadvantage to any telecommunications services provide r; universal service shall be maintained ; and rates charged to residential customers for essential tel ecommu nications servic es shall remain affordable. Tenn. Code Ann. § 65-4-123 (Supp. 1999).

The majority of the TRA held that the policy declara tions in Tenn essee C ode Annotated section 65-4-123, toget

her wit h proper construction o f Rule 1220-4-2-. 15, provide suffic ient authority to compel BST throug

h BAPCO to display

, on the cover of i

ts “White Pages” directory, the name and commercial logo of AT&T in e qual prominence w

ith the BellSouth na

me and commerc ial logo and
on the same ter ms and cond itions as are given by BAPC O to BST. Th e dissenti ng m ember of the TRA agreed that the

end result was co

rrect but felt tha

t it should not be attained in a contested case construing the Rule but rather that a rule-making proceeding was needed to re vise the Rule so as to apply in a competitive environment. This issue is so clearly drawn and artic

ulated in the majority and dissenting o pinions o f the TRA that extens ive quotation from

the declarator

y order is de

sirable in order to focus appellate consideration.

Chairman Greer, speaking for himself and Director Ky le, stated the majority position of the TRA in the declara

tory order of March 19, 1998 a

s follows: Following the disposition of t he pending motions, ea ch Director openly deliberated in great detail on the merits of the case and stated his or her position as to the proper disposition of the issues. After the deliberations were concluded, the motion as stated by Chairman Greer

prevailed. The motion and supporting comments are as follows:

As a regulator in T

ennessee, I

am bound by th

e parameters of

federal law, sta

te law and existing rules of this Agency. However, I am also charged with the duty of promoting telecommunications competition in this state accord ing to the [state and federal] Telecommunications Act[s] of 1995 and 1996, and with the duties of protecting the interest of bo th the consumers of Tennessee and the utility providers. Sometim

es the fulfillment o

f all of these dutie

s conflicts,not-8- only with each othe r bu t with the applicable laws involved. I feel that the production of one complete phone book containing the names and numbers of all customers, promot

es competition, re

duces consumer c

onfusion and best
serves the needs of Tennesse e. I feel this solution of one complete directory fulfill s my po lic y goals and I would encourage this action to be taken by the parties involved.

All of that said, however, I must now determine what I am allowed

to do under the law. The original petition brought four (4) statutesand one (1) Tennessee Public Service Commission/TRA rule in question. And I will explore each of these.
First, [ Ten n. Code Ann. §] 65-4-104 deals with the TRA's jurisdiction over public utilities. The TRA ob vio usly has juri sdiction over Be

llSouth Telecommunications and the fulfi llmen t of their obligations as a utility. By virtue of contract, then, B

APCO, as BellSouth'

s agent, become

s responsible

for the fulfillment of BellSouth's utility obligations under the law. . . .
[Tenn. Code Ann. §] 65-4-11 4(1) empowers th e Au thority to require every public utility to provide safe, adequate and proper servi ce, but i t does not require that utility to p

rovide such serv

ice to cu stomers other than its own. This statute, then, in my opinion, is not really applicable to this case.
[Tenn. Code Ann. §] 65-4-117(3) enables the Authority, after hearing, by order in writing, to fix just a

nd reasonable sta

ndards to be applie

d to any utility

. This statute seems to be envisioning rules, whi ch t ruly requires a rule-making proceeding. Thus, this statute is not applicable, in my opinion, to this case.
[Tenn. Code Ann. §] 65-4-12 2(c) mandates th

at a public utility shall not make
or give any u

ndue preferen

ce to anyon

e. However, this

statute applies mor

e to the ratepayers than to the utilities, as evidenced in New River Lumber Company versus Tennessee Railway , 1921, thus, this statute is not re levant to this case either.
Now, Tennessee Public Service CommissionRule [TRA Rule] 1220-4-2-.15 mandates that a telephone directory be published regul a rly containing the
names and numbers of all customers and distributed to all customers served by that directory. The directory

must have the name of

the uti lit y, the area served, and the month and year of issue on the cover. . . .

I have been charged

with the interpre

tation of this rule

in resolving this issue. I feel that it

is important to note that this rule was created in 1968, long before the 1996 Telecommunications Act and the push for compe

tition. Keeping th

is-9-

in mind, and realizing that no more than one utility existed at the time of this statute to address, I

believe that the p

lain language

of the rule envis

ions the
name and utility whose customers are inside the directory . Following the sa me logic, then, I believe that if more than one utility's customers ar e inside the
samedirectory, then more than one utility's name would be on the cover. I do notbelieve I have the au

thority to all

ow a telephone bo

ok with no name on the
cover.
The charges of law in this docket bring anot he r important statute

into focus, and that is [Tenn. Code Ann. §] 65-4-123. This statute discusses not only the policy of thi

s state to permit competition in all telecom services markets, but also that this regulation s hall protec t the interest of the consumers. This Agency has ruled that directory assis tance is not a basic service for Tennessee consumers,

therefore, in m

y opinion, the white page s listing is
a basic service and an esse

ntial tool the custo

mer needs to effic

iently and fairlyuse the

network. This telephone directory, then, needs to be complete and as easy to understand as possible. In my opinion, the names of local p roviders on the cover would be helpful to consu

mers. This would not

only
serve a s information, but would also promote competition by showing
consumers they have a choice in servi ce pro viders. This method also allows smallcompanies to continue to provide service without the financial burden of having to produce their owndirectory. They may contract with another carrier or publisher to sat

isfy their T

RA Rule requireme

nts and still

have their name on t he co ver o f th e di rect ory. Therefore, after reading all of the testimony and briefs filed in this docket, and after a hea rin g on t he m eri ts, and aft er co nte mpl ati on o f bo th m y dutie s as a r egulator a nd my interpretation of the applicable rules and the statutes, I feel that the name or names of the utility or utilities, whose customers are inside the dir ect ory, by contract, should be allowed to be included in the cover in the
sameformat. So, if a

carrier contr

acts with another

carrier or publ

isher to have their customers included in c ombined directory, then the included carrier should hav e its name on the directory cover in a like format. Thus, I mo v e that AT&T be allowed to contract with BAPC O to have its name on the
cover of the directory unde

r the same ter

ms and condi

t ions as that of BellSouth's

name. And

further, BAPCO and/or BellSouth must offer the same terms and conditions to AT&T in a just and reasonable manner.

In Re: Petition of AT&T Communications , Declaratory Order, Tenn. Regulatory Auth., , No. 96- 01692 (March 19, 1998) (citations and footnotes omitted)(emphasis in original).-10-

Thus, does the majority of the TRA hold in clear and unambiguous language that the policy of Tennessee Code A

nnotated section 6

5-4-123 and Rule 1 220-4-2-.15, in its prese nt form, a uthorize the action sought by AT&T in a “contested case” pr oceeding for a declaratory orde r.
With equal clarity, Di

rector Melvin Ma

lone asserts

that the result re

ached by th

e majority is correct but should be accomplished in a “rule-making” proced ure rather than a “contested case” proceeding for a declaratory or der. Says Director Malone:

In this declaratory

order action, AT

&T has requeste

d that the Auth

ority issue a declaratory

ruling on w hether T.C.A. §§ 65-4-104, 65-4-114(1), 65-4-117(3), 65-4- 122(c), or TRA Rule 1220-4-2-.15 require BellSouth to place AT&T's name an d logo
on the front cover of the local directory that is published by BellSouth Advertising and Publishing Company (“BAPCO”) on behalf of BellSouth.

Consistent wit h th e ma

jor ity, in my opinion, this case turns upon the application of the Rule, as opposed to other state statutes relied upon by AT&

T in this cause. The plain language of

TRA Rule 1220-4-2-.15 mandates that “the name of the telephone utility” must appear on the front cover of the local phone directory. The controlling question here is whether

the Rule requires

BellSouth

to place AT&T 's name and lo go on th e cover of BellSouth's local phone directory, or the local phone director y pub lis hed on i ts b ehal f, w hen AT&T 's cu sto mer s ar e li ste d in sai d di rect ory.
Unlike the majority, how ever, I have con cluded that applying the pl ain language of the Rule, irrespective of its original intent and purpose, in the current environment would result in each loc

al telecommunica

ti ons serv ices provider distributing or providing, directly or indirectly, its own phone book with its name

on the front cover to its customers. No la

w was submitted nor

phalanx of langua

ge offered in

this case that resulted in

a metamorphic ef

fect on the plain m

eaning or inten

t of the Rule

into anything other than what it is. Nonetheless, I am persuaded that the imposition of such a daunting requ

irement as would be

mandated by

the plain langua

ge of the Rule and its origin al intent a t this sta ge in Tenness ee's transi tion to a competitive environment

may result in

crippling conse

quences to

the development of competition.

For the forego ing and ot her reasons, I have concluded t

hat the most approp

riate path in this case is to declare that neither the Rule nor §§ 65-4-114(1), 65-4-117(3),
or 65-4-122(c) re

quire BellSouth to

place AT&T's

name and logo on the front cover of the loc al d ire cto ry pu bli she d by BAPC O on behalf o f BellSout h when AT&T's customers are listedtherein. Being ever mindful of the clear and unambiguous policy of the State of Tennessee to foster the development of an ef ficient, t echnologically adv anced, statewide system of telecommunic ations services by permitting competition in all telecommunications services marke ts and this agency's genera l supervisory and-11-

regulatory

power, jurisdiction, and control under § 65-4-104, I am persuaded that the most judicious manner

in which to procee

d is with a rulemaking to r

evise TRA Rule 1220-4-2-.15 and/or to develop a rule to apply in a competitive environment.

In Re: Petition of AT&T Communications , Separate Opinion of Director Me lvin Malone, Tenn. Regulatory Auth., No. 69-01692 (March 19, 1998) (footnotes omitted).

While Director Malone asserted that a rule-making procedure was the pref era ble way to dispose of the case, he chose in the end to join with the ma

jority in result, observing

“Hence, while I conclude that the

path that I

would choose

to resolve this matter is more appropriate than that chosen by the majority, the result is the same - all competitors names on the front cover of Bell South’s local phone Directory.” Id.

IV. JURISDICTION OF TENNESSEE REGUL ATORY AUTHORITY

Th e question in this cas

e is not the method us

ed by TRA in he

aring and deci

ding thiscase , butrather whether or not

TRA had jurisdictio

n to compel BAPCO a

gainst its wishes t

o display the
name and commercial lo

go of AT&T on the

cover of its “White

Pages”directory. We conclude that neither federal nor state law provides the authority with such jurisdiction.

As stated supra , before this contested case was ever filed, AT&T had filed a petition for arbitration against Bells outh Telecommunications, Inc. under section 252 of the Federal Telecommunications Act of 1996. The TR A held that the issue of whether or not AT&T was entitled to have its commercial logo displayed on the cover of directories publ

ished by BA

PCO for Bellsouth Telecommunications Company was not a subject for

arbitration unde

r section 252 of the

Federal Act. Administrative agencies in Alabama, Florida, Georgia, Kent ucky, I llinois, Louisia

na, Massachuset

ts, Mississippi, New Hampshire, New York, North Carolina, Oregon, Rhode Island , South Carolina, Texas and Vermont have reached the same conclusion. Administrative agencies in Arizona, Iowa, Kentucky, Montana, and Washington have concluded otherwise.

Inherent i n the findings of the majority of state regulatory agencies considering the issue (including Tennessee in this c ase), is a finding t hat the cover of t he incumbent’s “Wh

ite Pages” directory is not a “network e

lement” within the

meaning of 47 U. S.C. § 153 (29) which provides:

The term “network element” means a facility or equipment used in the provision of a telecommunications service. Such term also includes features, functions, and
ca p abilities that are provided by means of such facility or equipment, including subscriber

numbers, databases, signaling sy stems, and information sufficient for billing and collection or used in the transmission, routing, or other provision of a telecommunications service. 47 U.S.C. § 153(29)( ).-12-

Bellsouth’s obligation under the federal act is to provide “White Pages directory listings for customers of the other carrier’s telephone exchange service.” 47 U.S.C. § 271(c)( 2)(B)(viii)( ).

The TRA rightly

acknowledges

that the goal in a

ll of the legislative law in these cases is to “unbundle” the network elements of an in cumbent local exchange carrier in order to foster nondiscriminatory

entry into th

e competive mark

et of telecommunic

ations services.

With very little by the way of

explanation, the TRA held that the branding of “Whi te Pages” dire

ctory cove

rs was in the nature of a

network or utility

function. This hold

ing, if correc

t, brings the issue of directory cover branding within the ambit of the Telecomunications Act of 1996, the FCC rules regarding enforcement of the act’s provisions, and Tennessee’s Telecommunications Act of 1995.

The term “network element” is broadly defined to include mor e than simply the physical facilities and equipment of an ILEC. AT&T Corp. v. Iowa Utilities Bd ., 525 U.S. 366 (1999). Providing directory

listings necessary to

local customer service is in the nature of a “network element” to be provided at cost-based rate. See AT&T of Va. v. Bell-Atlantic Va., Inc. , 197 F.3d 663, 674 (4th Cir. 1999). Yet

inherent in the TRA’s ruling was the finding that the branding of the cover of a local white pages directory is an element of B ST’s network as well, and thus, must be provided to competing L

EC’s on an unbundle

d basis. In this discussion the following is persuasive:

There is a point, though, at which a partic

ular servic

e is too r emote to justify inclusion as a network ele ment.

. . . Some things the CL EC’s must do for them

selves. The unbundling requirement is aimed at making

available to CLEC’s, those network features,which a CLEC needs to provide competitive local telephone service, . . . or which competitors could

not otherwise dupl

icate in a timely

manner or

at a reasonable cost. The unbundling requirement ordinarily should not extend to g

eneral business services that ca

n be replicated b

y competitor

s. MCI Telecomm. Corp. v. GTE Northwest, Inc. , 41 F.Supp. 2d 1157, 1180-81 (D.Or. 1999).

The inc umb ent ’s “ Whi te P ages ” di rect ory cover is among “items tha

t do not (as they

must) meet the statutory definition of ‘network element’ ” AT&T Corp. , 525 U.S. at 386.

So ends the federa

l in quiry in this

case. We now turn to Tennessee law, primarily the Telecommunications Act of 1995 codifiedas part of Tennessee Code Annotated Title 65, chapters 4 and 5. First, it is wellto observe that the Federal Telecommunications Act of 1996 is not preemptive of state legisla tion, but rather c

ompatible therew

ith, and state law i

s preempted only

to the extent that it conflicts with the federal act. See Bellsouth Telecomm. v. Greer , 972 S.W.2d 663, 671 (Tenn. Ct. App. 1997).

This Court has held:-13-

The Commission, like any other administra tive agency,

must conform its ac

tions to its enabling legislation. Tennessee Pub. Serv. Comm’n v. Southern Ry., 554 S.W.2d 612, 613 (Tenn.1977); Pharr v. Nashville, C. & St. L. Ry. , 186 Tenn. 1 54, 161, 208 S.W.2d 1013, 1016 (1948). It has no authority or power except that found in the statutes. Tennessee-Caroli na Transp., Inc. v. Pentecost , 206 Tenn. 551, 556, 334 S.W.2d 950, 95 3 (1960). While its statutes are remedial and should be interpreted lib eral ly, see Tenn. Code Ann. § 65-4-106 (Supp.1996), they should not be construed
so broadly as to permit the Commission to exercise

authority not specifically gra nted by law. Pharr v. Nashville, C. & St. L. Ry., , 186 Tenn. at 161, 208 S.W.2d at 1016.
Bellsouth Telecomm., 972 S.W.2d at 680 (Tenn. Ct. App. 1997.)

The Supreme Court of Tennessee has held: Any authority exercised by the Public

Service Commission m

ust be as the resul

t of an express grant of authority by statute or arise by necessary

implication fromthe expressed statutory grant of power. Pharr v. Nashville, Ch at tanooga and St. Louis Railway , 186 Tenn. 154, 208 S.W.2 d 1013 (1 948); Nashville, Chattanoo ga and St. Louis Railway v . Railroad and Public Utilities Commission et al , 159 Tenn. 43, 15 S.W.2d 751 (1929). In either circumstance, the grant of power

to the Commission is strictly construed. Tennessee Pub. Serv. Comm’n v. Southern Ry. Co. , 554 S.W.2d 612, 613 (Tenn. 1977). As with the question of

arbitration unde

r the federal sta

tute we are dea

ling in this case w

ith
a very limited issue. We are conce rn ed not with the “White Pages” listings of competing local telecommunications service providers, which BST, as the incumbe nt local exchange telephone
com pan y, is required by both federal and state law to provide, but rather with the bra nding of th e cover of s uch “Wh ite Page s” d ire cto ry.
Tennessee Code A

nnotated section 6

5-4-124 provides

in pertinent part a

s follows: (a) All telecommunications services providers shall provide non -di scriminatory interconnectionto their public netw orks under reas

onable terms

and conditions;

and all telecommunications services providers shall, to the extent th at it is technically

and financially

feasible, be provided desired fea tures, functions and services promptly, and
on an unbundl ed an d non-discriminatory basis from all other telecommunications services provide

rs. (b) Prior to Janu ary 1, 199 6, the commission sha ll, at a minimum, promu lgate rules and issue such orders as necessary to implement the requirements of subsection (a) and to provide for

unbundling of service elements and functions, terms for resale, interLATA

presubscription, numb er portability, and packaging of a basic loca l-14-

exchange telephone service or unbundled featuresor functions with services of other providers. (c) These rules shall also ensure that all tele-communications services providers who prov ide basic local exchange telephone service or its equivalent provide each customer a ba sic WhitePages directory listing, provide access to 911 emerg ency servic es, provide free blocking service for 900/976 type servic es, provide acces s t o telecommunications relay services, provide Lifeline a nd Link-Up Tennessee services to qualifying citizens of the state and provide

educational disc

ounts existing on June 6, 1995. Tenn. Code Ann. § 65-4-125(a-c) (Supp. 1999).

The same reasons that impelled the TRA, and a majority of other state reg ulatory commissions, to reject arbitr ation of the brand

ing of “White

Pages” directory

covers under the federal act impel the conclusio

n that branding o

f “White Pages”

directory covers is not an essential pu

blic service, subject to regulation by the TRA. National Merchandising Corp. v. Public Serv. Comm’n , 5 N.Y.2d 485, 490, 158 N.E.2d 714, 716, 186 N.Y.2d 47, 50 (1959). The TRA is mandated by Code sect ion 65-4-124(c) to, by rule, insure that each “customer” of a ll telecommunications ser vic e providers who provide basic loc al exchange tele

phone service g

et a “White

Pages” direc tory listing, and it is undisputed in this record that Bellsouth and BAPCO have compli

ed - rule or no rule - with this statutory mandate, which is the same mandate required by federal law.

The TRA held that under section 65-4-104of the Code, it had jurisdiction over BST and the fulfillmentof its obligation a s a utility. I

t further held: “By virtue of contract, then, BAPCO, as Bellsouth’s agent becomes responsible for the fulfillment

of Bellsouth’s utility obligations under the law.” While it is corre ct to say tha t B ST may not avoid the fulfillment of its statutorily mandated utility functions by either agency or contract, See Smith v. Southern Bell Tele. and Tel. Co. , 51 Tenn. App. 146, 151, 364 S.W.2d 95 2, 955 (1962); Loring v. Bellsouth Adver. & Publ’g. Corp. , 339 S.E.2d 372, 374 (Ga. Ct.App. 1985), it does not follow that TRA has jurisdiction to regulate the activities of BAPCO in non-uti

lity endeav

ors.
At this point, t he sepa rate identity of BST and BAPCO b

ecomes critical . Both are wholly
ow ned subsidiaries of Bellsouth C orporation. BST is a “telecommunications services provider” under Title65, Chapters 4-5 of Tennessee Code Annotated and thus subject to regulation by the TRA. BST is also an “incumbent local exchange” company under the Federa l Telecommunications Act of 1996. On the other hand, BAPCO is not a public utility company, subject to reg ulat ion by Tennessee Regulatory

Authority, but rather a corporation engage d in t he competitive business of publishing tele phone directories. Having fulfilled the utility obligations of BST by providing “each custome r a basic White Page directory listing” [Tenn. Code Ann. § 65-4- 124(c )], BAPCO has fulfi lled all utility functions mandated by Tennessee statute and TRA has no further power under either state law
or federal law to regulate the non-utility activities of BAPCO. See U. S. West Communications, Inc. v. Minnesota Pub. U

tils. , 55 F.Supp. 2d 968, 983-985 (D. Minn. 1999).-15-

Tennessee Reg

ulatory Auth

ority corr ectly held t

hat sections 65-4-114 (a), 65-4-117(3) and 65- 4-122(c) of t he C ode , st atu tes rel ied on b y AT&T in its petition for a declaratory ruling, were inapplicable

to this case. The authority based its decision on the gener al policy statement of Tennessee Code Annotated section 65-4-123, the jurisdictional provisions of the Code section 65-4- 104 and the provisions o

f TRA Rule 1220-4-2-.15 . The rule is broug ht unchanged int

o a statutorily mandated competitive environment. As observed by Director Malone: [A]pplying the plain language of the Rule, irrespe ctive of its original intent and purpose, in the current environment would result in each local telecom municatio ns services provider distributing or providing, directly or indirectly , its own phone book withits name on the fro

nt cover to its custo

mers. No law was submitted nor phalanx of language off

ered in this case

that resulted in a meta

morphic effect

on the plain meaning or inten

t of the Rule into any

thing other than w

hat it is. Opinion Director Malone, Tenn. Regulatory Auth., In R e: P eti tio n of AT&T

. It is well to add that this obse

rvation comports

precisely with Tennessee Code Annotated § 65-4-124, which applies by its terms not to j ust an “i ncu mbe nt l ocal exc han ge te lep hon e com pan y” butrather to “all telecommunications services providers” who provide basic loca l exchange te lephone service.

However laudable the desire of the Tennessee

Regulatory Authority to have produc ed “one complete phone book containing the names and numbers of all customers,” the language of the controlling statutes and of TRA Rule 1220-4-2-.15

simply cannot be stretched to pr

ovide TRA with authority to compel a non-uti

lity publishing company to brand the cov er of its Whi te P ages dir ect ory, notjust with the name, but also the commercial logo of a telephone utility in competition with BST.

We hold thatTRA is without authority under present statutes and rules to compel BAPCO to brandits “White

Pages” directory cover with the name and commer cial logo of AT&T or any other telecommunications service provider who provides basic, local exchange telephone service.

V. CONSTITUTIONAL QUESTI ONS

BAPCO on appeal asser

ts that the action of

TRA in compelling BAPCO to brand the cover of its White Pages directory with the name and commercial logo of AT& T con stitutes “forced speech” in violation of the First Amendment of the Constitution of UnitedStates. Miami Herald Publ’g. Co.
v. Tornillo , 4 18 U.S . 241, 257 (1974). BAPCO further asse rts that the TRA ord

er effects a confiscatory

taking of prope

rty in violati

on of the Fifth and Fourteenth Amendments to the Constitution of the United States and in violation of Article 1 section 8 of the Constitution of Tennessee.
Since the majority

of this Court is

in agreement th

at the TRA order u

nderlying this appeal is invalid on g rounds otherthan those constitutional issues presented, I would prefer to pretermit the-16-

constitutional issues under Teague v. Campbel l County , 920 S.W.2d 219 (Tenn. Ct. App. 1995) and Watts v. Memphis Transit Management Co. , 224 Tenn. 721, 462 S.W.2d 49 5 (Tenn. 197 1). Judge Koch, however, prefers to address the First Amendment “forced speech” question, and since on the meri ts of this constitutional question I agree with him, I concur in section VI of his sep arat e concurring opinion entitled “Constitutional Limits on the TRA’s Authority to Compel Speech.”

VI. TRADEMARK ISSUES

BAPCO asserts that the TRA order violates state an d federal trademark law and promotes marketplace confusion.

We have held that TRA

has no jurisdiction

over BAPCO in

its non-utility

functions. The onl

y utility function performed by BAP CO i n this case was und er its contract w

ith BST whereby

it undertook to perform

for BST the utility

duties mandated by

federal and sta

te law. It is undisputed that BAPCO

has performed

these utility duties for BST. We have further held that the branding of the “White

Pages” directory cover produced by BAPCO is a non-utility function. These rulings have disposed of

all issues necessary to the determination of this case. We therefore pre termit the tradema rkissues. See General Outdoor Adver. Co. v. Coley , 23 Tenn. App. 292, 131 S.W.2d 305 (1938); Deaton v. Evans , 192 Tenn. 348, 241 S.W.2d 423 (1951); Tennessee Cable Television Ass’n v. Public Serv. Comm’n , 844 S.W.2d 151 (Tenn. Ct. App. 1992).

VII. THE NEXTLI

NK CASE

In the disposition of these consolidated cases, our holdi ng in the AT&T case is necessarily dispositive of the Nextlink case.

Nextlink Tennessee LLC, MCI Telec ommunications Corporation and A m erican Communications Services, Inc. are all “competing telecommunications service providers” within the meaning of Tennessee Code Annotated § 65-4-101(e) in competition with BST. All of these parties
were allowed to intervene in the AT&T case and participate therein. Their application to intervene sought no specific relief for themselves but rather strongly supported the position of AT&T. When the TRA released i ts 1998 ord er sustaining the position of AT&T, it granted the relief sought by AT&T without spec

ific adjudication

of the Nextlink, MCI

, and ACSI inter

ventions. When BAPCO appealed theMarch 19, 1998 order in the AT&T case, no stay order issued, and the March 19, 1998

order remained

effective. Ten

n. Code Ann. § 4-5- 322(c); Underwood v. Liberty Mut. Ins. Co. , 782 S.W.2d 175, 177 (Tenn. 1989). Nextlink then approached BAPCO about putting the name and commercial logo of Nextlink on the front cove r of the BAPCO “Whit

e Pages” dir ect ory, only to be rebuffed by B APCO on an assertion that the March 19, 1998 o rder only adjudicated

the claim of AT&T

and did not apply

to Nextlink. On September 23, 1998, Nextlink filed its petition in this case

seeking to

compel BAPCO to comply with the declaratory order of March 19, 1998 as it related to Nextlink and to implement sanctions against BAPCO.-17-

The N extlink case was heard on oral argument on October 15, 1998, and on Novembe r 2 , 1998, TRA entered an or

der enforcing

Rule 1220-4-2-.15

against BAPCO ho

lding in pertinen

t part:
The fundamental issue

rais ed b y NEXTL

INK’s petitio

n and BAPCO’s res

ponse is whether th

e Authority may enforce T RA Rule 1220-4-2-.15, as interpreted in the Declaratory

Order, pending appeal of the Declaratory Order. OnOctober

15, 1998, following the submission of br iefs and oral ar

guments, the Authority

deliberated and concluded

that, in the absenc

e of a stay o

f the Declarato

ry Order, BAPCO m ust comply with TRA Rule 1220-4-2-.15 as interpreted in the Authority’s Declaratory Order of March 19, 1998, and as applied to all similarly situated carriers. In support of that decision, the Authority makes the following findings of fact and conclusions of law.

1. NEXTLINK

is a c ertified, competitive l ocal exchange telephone company. See Docket No. 95-02502 (September 29, 1995) and Docket No. 96 -00728 ( April 12, 1996). NEXTLIN K off

ers local telephone service to subscribers in Memphis and Nashville in competition with BellSouth. See Docket No. 97 -0030 9, Tr. Vol. V III B, p ages 112-113. NEXTLINK’s customer listings are containe d within the White Pag e s directories published by BAPCO on behalf of BellSouth. See Docket No. 97-00309, Tr. Vol. XIA, pages 10-11. As req uired by federal law, the White Page Directories published by BAPCO on

behalf of BellSouth must include the names and telephone numbers of NEXTLINK’s loc al custome rs. The fact s from the fo rego ing docke ts were officially noticed by the Authority in a let ter dated October 16, 1998, without objection from the parties.

2. In its Declaratory Order, the A uthority declared

that the rule on White Pages directories applies to competitive local exchange carriers and that such car riers should be allowed the opportunity to appear on the cover of the White Pages under the same terms and conditions as BellSouth itself. Although the ordering clause of the decision grantsrelief only to AT&T, the Order was based squarely on the Authority’ s interpretati

on and a pplication of the agency’s rule on White Pages directories a nd therefore, the agency’s holding c oncerning the interpretation of the rule must not be applied only to AT&T but it must equally be applied to all similarly situated carriers that seek the same relief. By definition, an agency

ruleis a “statement of general applicability.” See Tenn. Code Ann. § 4-5-102(10 ). Consequentl

y, an i nterpretation of

a rule necessar

ily applies to all similarly

situated companie

s. NEXTLINK is similarly situated to AT&T in that it too is a certificated c ompetin g local exchange provider. Moreover, NEX TLINK, is in fact, providing service. Therefore, since there are no releva n t differences between NEXTLINK and AT&T r egardingthe application of the rule on White Pages directories, no contested case hearing was required on this issue.-18- 3. In the absence of a

stay, the Au

thority’s de

cision in it s Declar atory Order remains in effect pending appeal. Under Tennessee law, the filing of a pe tition for review “do es not itself stay enforcement of the agency decision.” See Tenn. Code Ann. § 4-5-322(c). BAPCO itself conce des that the Declaratory Order is now in effect, at least as it applies to BAPCO and AT&T. See also Transcript of October 15, 1998, at 32. Therefore, the Authority’s

interpretation of

Rule 1220-4-2-.15

is effective and enforceable. See Underwood v. Liberty Mutual , 782 S.W.2d 175, 177 (Tenn. 1989) holding that “judgment may continue to be enforced pending an appeal unless a stay is ordered.”

4. BAPCO’s argument that NEXTLIN

K’s claim is

barr ed b y res judicata

is not persuasive. Sim ila rly, BAPCO’s argument that the Authority cannot now modify the terms of the Declaratory

Order has no mer

it, because

NEXTLINK has not asked the Authority to amend its Declaratory Order nor is any such modi fication necess ary to grant NEXTLINK’s petition. The Declaratory Order interprets and applies the Authority’s rule as to White Pages directories and that interpretat ion necessarily applies to any other, similarly situated carrier covered by that rule.

5. In its Declaratory

Order, the Autho

rity direct

ed BAPCO to nego

tiate with AT & T for “the same terms and conditions” which BAPCO offers to BellSouth. BAPCO acknowledges

that no such terms a

nd conditions exist at t

his time. S ee Transcript

of October 15, 1998, at p. 6. BAPCO is therefore obliged to nego

tiate with NEXTLINK

for the opportunity to appear on the cover of the White Pages directorie s in a size and style comparable to the name and logo of BellSouth.

In Re: Petition of Nex

tlink to Sanction Be

llsouth , Order enforcing T.R .A. Rule 120-4-2-.15 and denying sanctions, Tenn. Regulatory Auth. No. 98-00654 (Nov. 2, 1998)(footnotes omitted).

TRA declined to impose

sanctions upon BAPCO and BAPCO timely appealed the November 2, 1998 order. BAPCO on appeal a

sserts three issue

s.
1. That BAPCO’s proc edural due proc ess rights were

violated when the

TRA refuse

d to allo w BAPCO to submit evidence on whether or not Ne xtlink was a

“similarly situated competitive local exchange carrier.” 2. The March 19, 1998 order, which is the subject of the AT&

T appeal, is res judicata

of the claims of Nextlink. 3. That BAPCO’s appeal o

f the AT&T orde

r divested the TRA o

f any jurisd

ic tion of t he Nextlink case.

The TRA’s November 2, 1998 order isso completely and correctly dispositive of these thr ee issues on appeal as to require little discussion. Nextlink is a certified, competitive loca l ex change-19-

telephone company providing local service in competition with BST, and its White Pages customers
are published in

the BAPCO “W hite Pages” directories. It is, thus, in the only context at issue, “similarly situated” as a matter of law, and further proof is neither nec essary nor proper.
If the agency and

the individual disagree only with respect to the way in which the law applies to an unco

ntroverted set of

facts, additio nal procedures cannot possibly enhancethe accuracy

of the factfindin

g process, simply beca

use the agency does not needto resolve any

factual controv

ersies. This is a familiar principle that administra tive law borrows from the concept of summary judgment in civil procedure

. Kenneth C. Davis & Richard S. Pierce, Sr., Administrative Law Treaties , § 9.5 (3d ed.1994).
Likewise, res judicata

is not applicable to

this case. Intervention in this case is governed by Tennessee Code Annotated § 4-5-310 and not by Rule 24 of t

he Tennessee Rul

es of Civil

Procedure. Rule 24.03 Tennessee

Rules of Civil Proce

dure provides tha

t one seeki ng to intervene must accompany

his intervention motion with a “ ... pleading setting forth the claim or defense for which intervention is sought.” Tenn. R. App. P. R. 24.03. Tennessee Code Annotated § 4-5-310 does not require a petitioner for i

ntervention to see

k affirmative re

li ef. In the A T&T case Nextlink did not seek or receive specific affirmative relief.

In t he AT&T action for

a declaratory

order TRA Rule 122

0-4-2-.15 was al

ready long

in existence having been adopted in1968. The AT&T adjudication sought an interpretation of this rule.

A dministrative agencies ty pically per

form both legisla

tive and adjudic

ativ e functions. Th ese functi ons are closely related, and the line between them is not always clear.

Rule making is essenti

ally a legislative fu

nction because it

is primarily concerned withconsiderations of

p olicy. It is the process by which an agency lay

s down new pres cri pti ons to go vern the fut ure c ond uct of t hos e su bje ct t o it s au tho rit y.
Tennessee Cable , 844 S.W.2d at 160-61 (citations omitted).

In the AT&T

case the T RA interpreted its rule. The Nextlink case sought to enforce the previous interpretation of this same rule. Application of this rule is an executive or administrative function. In re: Cumberland Power Co. , 147 Tenn. 504, 509-513, 249 S.W. 818, 819-20 (1923). The TRA corr ect ly he ld t hat Nex tli nk i s no t ba rred by res judicata

. Fin all y, no stay order

having been issu

ed in the AT&T ap

peal, the TRA

was free to enforce its decision in the Nextlink proceeding. See Tenn. Code Ann. § 4-5-322(c).-20-

IX. CONCLUSION

Because we findthat neither

state nor federal law allows the TRA to compel BAPCO to brand its White Pages cover

withthe name and commercial logo of “competing telecommunications service providers”

in competition with B ST, and because we further find,

as articulated b

y Judge Koc

h in his separate concurring opinion, that such order imposes “forced speech” upon BAPCO in violation of the First Amendment of

the Constitution of th

e United States, bo

th the AT&T case and the Nextlink
case are reversed.

The issues of alle

ged vio lation o f the Fifth and Fourteenth Amendments to the Constitution of the United States, together with the trademark issues asserted in the AT&T case, are pretermitted. The other issues r aised by BA

PCO in the Nextlink cas

e are without merit.

Costs of the AT&T case are asses sed against AT& T. Costs of the Nextlin

k case are asse

ssed one-half against Nextlink and one-half against BAPCO.

_______________________________________________ WILLIA M B. CAIN, JUDGE