UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MCI TELECOMMUNICATIONS

CORPORATION, A DELAWARE

CORPORATION; MCI

TELECOMMUNICATIONS CORPORATION OF

VIRGINIA,

Plaintiffs-Appellees,

v.

No. 98-2026

STATE CORPORATION COMMISSION OF THE

COMMONWEALTH OF VIRGINIA; HULLIHEN

W. MOORE; I. CLINTON MILLER;

THEODORE V. MORRISON, JR., in their

official capacities as Commissioners of

the Commonwealth of Virginia State

Corporation Commission,

Defendants-Appellants.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

Richard L. Williams, Senior District Judge.

(CA-98-284-3)

Argued: April 8, 1999

Decided: May 10, 1999

Before WIDENER and TRAXLER, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Vacated and remanded by unpublished opinion. Senior Judge Butzner

wrote the opinion, in which Judge Widener and Judge Traxler joined.

_________________________________________________________________
COUNSEL

ARGUED: Robert A. Dybing, SHUFORD, RUBIN & GIBNEY,

Richmond, Virginia, for Appellants. Adam Howard Charnes, MCI

COMMUNICATIONS CORP., Washington, D.C., for Appellees. ON

BRIEF: James C. Dimitri, William H. Chambliss, Robert M. Gillespie, Allison Leigh Held, STATE CORPORATION COMMISSION

OF VIRGINIA, Richmond, Virginia, for Appellants. Thomas F.

O'Neil, III, MCI COMMUNICATIONS CORP., Washington, D.C.;

David G. Shuford, LECLAIR RYAN, Richmond, Virginia; Donald B.

Verrilli, Jr., JENNER & BLOCK, Washington, D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

BUTZNER, Senior Circuit Judge:

After the Virginia State Corporation Commission (SCC) issued an

order barring MCI Telecommunications Corporation of Virginia

(MCIV) from collecting certain charges from customers making intrastate telephone calls, the district court enjoined the SCC from enforcing its order. The SCC appealed. Because all parties now agree that

MCIV neither imposed nor collected the charges, we vacate the order

of the district court and remand with instructions to dismiss this case

as moot.

I

Telecommunication companies doing business in Virginia are regulated under a bipartite structure. The Federal Communications Commission (FCC) regulates interstate telephone service, while the

Virginia State Corporation Commission (SCC) oversees intrastate service. See 47 U.S.C. § 152 (1994); Va. Const. art. IX, § 2. Pursuant to

this regime, MCI Telecommunications Corporation (MCIT), a Dela-

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ware corporation, provides interstate telephone service to customers

in Virginia and other states in accordance with a schedule, or tariff,

filed with the FCC. MCIT provides intrastate service through a Virginia subsidiary, MCI Telecommunications Corporation of Virginia

(MCIV), which operates under a tariff filed with the SCC.

In 1997 and 1998, MCIT amended its FCC tariff to add certain

charges, the Federal Universal Service Fee and the National Access

Fee, to business customers. This amendment applied to customers in

Virginia. The SCC believed that MCIV had imposed the charges on

intrastate calls within Virginia, a position that MCIV did not deny

until proceedings before the district court. The SCC issued an order

enjoining MCIV from collecting the charges, and directing MCIV to

return monies already collected. MCIT and MCIV filed suit in federal

court seeking an injunction against the SCC order. The district court

found upon agreement of the parties that MCIT, not MCIV, had

issued and collected the charges, and enjoined enforcement of the

SCC order. The SCC filed this appeal.

II

The only question before this court is whether the district court

properly enjoined the SCC from enforcing its order. The SCC has initiated a proceeding before the FCC challenging MCIT's imposition of

the charges under MCIT's federal tariff. We express no opinion on

the merits of that case. Likewise, the Supreme Court of Virginia is

holding in abeyance a proceeding initiated by MCIT and MCIV

appealing the SCC order.

Federal courts sit only to decide cases or controversies. U.S. Const.

art. III, § 2; see Preiser v. Newkirk, 422 U.S. 395, 401 (1975). "[A]

federal court has neither the power to render advisory opinions nor to

decide questions that cannot affect the rights of litigants in the case

before them." Id. (internal quotation and citation omitted). Mootness

can arise at any stage of litigation. See Calderon v. Moore, 518 U.S.

149, 150 (1996).

The SCC initially found that MCIV had collected the charges at

issue. The SCC now agrees that MCIT had imposed and collected the

charges, and concedes that its order rests upon a mistake of fact, albeit

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a justifiable mistake under the circumstances. Since there is no controversy concerning this key fact, there is no jurisdictional ground

upon which this court may adjudicate the rights of the litigants.

Preiser, 422 U.S. at 401. This case has "lost its character as a present,

live controversy" and is moot. Maryland Highways Contractors Ass'n

v. State of Maryland, 933 F.2d 1246, 1249 (4th Cir. 1991).

III

Because the SCC order is based upon a mistake of fact, we vacate

the order of the district court and remand with instructions to dismiss

as moot. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership,

513 U.S. 18, 25 (1994) (vacatur is appropriate where mootness occurs

in a nonsettlement context); see also Arizonans for Official English

v. Arizona, 520 U.S. 43, 71-72 (1997).

VACATED AND REMANDED

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