FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AUTOTEL, a Nevada corporation, 

Plaintiff-Appellant, No. 10-15663

v. D.C. No.  2:07-cv-01423- NEVADA BELL TELEPHONE COMPANY,

ECR-GWF DBA AT&T of Nevada, FKA

SBC, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, Senior District Judge, Presiding

Argued and Submitted

August 29, 2011—San Francisco, California

Filed September 4, 2012

Before: Raymond C. Fisher and Johnnie B. Rawlinson,

Circuit Judges, and Otis D. Wright, II, District Judge.*

Opinion by Judge Fisher

*The Honorable Otis D. Wright, II, United States District Judge for the

Central District of California, sitting by designation. 

10547
COUNSEL

Marianne Dugan, Eugene, Oregon, for the plaintiff-appellant.

Roger A. Moffitt, AT&T Nevada, Reno, Nevada; Dennis G.

Friedman (argued) and James C. Schroeder, Mayer Brown

LLP, Chicago, Illinois, for the defendant-appellee.

OPINION

FISHER, Circuit Judge:

This case arises out of a dispute between two telecommunications carriers. Plaintiff-Appellant Autotel is a Commercial

Mobile Radio Service (CMRS) provider wishing to provide

wireless service in and around Pahrump, Nevada. It seeks digital interconnection with the facilities and equipment of

Defendant-Appellee Nevada Bell Telephone Co. (AT&T

Nevada), the incumbent local exchange carrier (LEC) in the

area. After the parties’ efforts to negotiate an interconnection

agreement failed, Autotel brought suit in federal court, alleging that AT&T Nevada violated the Telecommunications Act

of 1996 by (1) refusing to negotiate in good faith; and (2) failing to provide digital interconnection with symmetrical pricing on an interim basis during negotiations, as required by

Federal Communications Commission (FCC) regulations.

The district court dismissed Autotel’s first cause of action

and granted summary judgment to AT&T Nevada on Auto10550 AUTOTEL v. NEVADA BELL TELEPHONE COMPANY
tel’s second cause of action. Autotel appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 

We hold that the district court properly dismissed Autotel’s

good faith claim because Autotel did not exhaust its administrative remedies under our circuit’s prudential exhaustion

requirement. Instead, Autotel appeals from the state public

utilities commission’s summary dismissal of its complaint as

procedurally deficient without addressing its merits. With

respect to Autotel’s second cause of action, we hold that the

interim arrangement and symmetrical pricing requirements

described in 47 C.F.R. §§ 51.715 and 20.11(e) apply only

when the competing carrier does not have an existing interconnection arrangement with the incumbent LEC that provides for the transport and termination of telecommunications

traffic. Because Autotel had such an arrangement with AT&T

Nevada at all relevant times, AT&T Nevada had no obligation

to provide Autotel an interim arrangement with symmeterical

rates.

We remand, however, to permit the district court to consider what, if any, relief is available to Autotel under 47

C.F.R. § 51.717.

BACKGROUND

The Telecommunications Act of 1996 (“the 1996 Act”),

Pub. L. No. 104-104, 110 Stat. 56 (1996), “introduced a competitive regime for local telecommunications services[,]” W.

Radio Servs. Co. v. Qwest Corp. (Western Radio I), 530 F.3d

1186, 1190 (9th Cir. 2008). Before its passage, a single company within each local area typically provided local telephone

service pursuant to a state-sanctioned monopoly. See Verizon

California, Inc. v. Peevey, 462 F.3d 1142, 1146 (9th Cir.

2006). To encourage competition, the 1996 Act imposed on

incumbent LECs, such as AT&T Nevada, the duty to provide

interconnection to competing telecommunications carriers,

such as Autotel. See 47 U.S.C. § 251(c)(2). Interconnection is

AUTOTEL v. NEVADA BELL TELEPHONE COMPANY 10551
the “physical act of linking one network to another through

facilities and equipment.” W. Radio Servs. Co. v. Qwest Corp.

(Western Radio II), 678 F.3d 970, 986 (9th Cir. 2012)

(emphasis, citations and internal quotations marks omitted). It

“allows customers of one LEC to call the customers of

another, with the calling party’s LEC (the ‘originating’ carrier) transporting the call to the connection point, where the

called party’s LEC (the ‘terminating’ carrier) takes over and

transports the call to its end point.” Verizon California, 462

F.3d at 1146. 

The 1996 Act adopted several substantive requirements

relating to the quality and nature of the interconnection. For

example, an incumbent LEC must provide interconnection “at

any technically feasible point within [its] network” that is “at

least equal in quality to that provided by the local exchange

carrier to itself.” 47 U.S.C. § 251(c)(2)(B), (C). In addition,

interconnecting carriers must “establish reciprocal compensation arrangements for the transport and termination of telecommunications.” 47 U.S.C. § 251(b)(5). “Under a reciprocal

compensation arrangement, the originating LEC must compensate the terminating LEC for delivering its customer’s call

to the end point.” Verizon California, 462 F.3d at 1146.1

If a carrier requests interconnection, both parties have a

“duty to negotiate in good faith . . . the particular terms and

conditions of” an interconnection agreement. 47 U.S.C.

§ 251(c)(1). The 1996 Act sets forth a procedural framework

for these negotiations. An incumbent LEC and a requesting

carrier may negotiate a voluntary agreement, and either party

1The FCC has determined that this reciprocal compensation requirement

applies only ‘to traffic that originates and terminates within a local area.’ ”

Verizon California, 462 F.3d at 1146 (quoting In re Implementation of the

Local Competition Provisions in the Telecomms. Act of 1996 (Local Competition Order), 11 FCC Rcd. 15499, 16013, ¶ 1034 (Aug. 8, 1996) (subsequent history omitted)). The parties do not address this limitation, and

it appears from the record that their dispute centers around Autotel’s provision of local service.

10552 AUTOTEL v. NEVADA BELL TELEPHONE COMPANY
may ask a state public utilities commission (PUC) to “mediate

any differences arising in the course of the negotiation.” 47

U.S.C. § 252(a). If the parties fail to reach a complete agreement through voluntary negotiations or mediation, either party

may petition the state PUC to resolve the open issues through

compulsory arbitration. See 47 U.S.C. § 252(b).

Autotel first interconnected with AT&T Nevada’s network

in 1994 through five analog loops connecting to the AT&T

Nevada switch in Pahrump, Nevada. AT&T Nevada charged

Autotel a flat monthly fee pursuant to AT&T Nevada’s standard retail tariff for such lines.

In August 1996, Autotel requested digital interconnection

with AT&T Nevada’s network pursuant to §§ 251 and 252 of

the 1996 Act. Voluntary negotiations were unsuccessful, and

in August 2002, Autotel filed a petition with the Public Utilities Commission of Nevada (PUCN) seeking arbitration of an

interconnection agreement. After nearly two years, the PUCN

dismissed Autotel’s petition. It found that Autotel had failed

to comply with the PUCN’s discovery procedures and orders,

and thus had violated its duty to negotiate in good faith. See

47 U.S.C. § 252(b)(5).

In March 2005, the FCC promulgated new rules prohibiting

LECs from charging CMRS providers tariff-based rates for

transport and termination of local traffic. See Intercarrier

Compensation, 70 Fed. Reg. 16,141 (Mar. 30, 2005); 47

C.F.R. § 20.11(d) (2005). The FCC explained that as of April

29, 2005, the effective date of the new rules, “any existing

wireless termination tariffs shall no longer apply” and “[a]fter

that date, in the absence of a request for an interconnection

agreement, no compensation will be owed for termination of

[local] traffic.” Intercarrier Compensation, 70 Fed. Reg. at

16,141. The new rule authorized incumbent LECs to initiate

negotiation of interconnection agreements under the 1996

Act, see 47 C.F.R. § 20.11(e), and in November 2005, AT&T

Nevada took advantage of this provision and requested an

AUTOTEL v. NEVADA BELL TELEPHONE COMPANY 10553
interconnection agreement with Autotel, presumably in an

effort to secure a new compensation arrangement. The parties

still could not agree. Autotel alleges that AT&T Nevada

refused to provide Autotel with the same digital interconnection that it used in its own network unless Autotel accepted

AT&T Nevada’s standard terms and conditions, which were

unacceptable to Autotel.

On August 8, 2006, Richard Oberdorfer, Autotel’s president and sole shareholder, filed a complaint with the PUCN

on behalf of Autotel alleging that AT&T Nevada refused to

negotiate in good faith, and asking the PUCN to order AT&T

Nevada to provide digital interconnection on Autotel’s terms.

The PUCN rejected the complaint without prejudice for failure to comply with the Commission’s procedural requirements for telecommunications complaints. It did not address

the merits. Oberdorfer refiled the complaint a few days later.

The PUCN again summarily rejected the complaint as procedurally deficient. Rather than correct and refile the complaint

with the PUCN, Autotel filed suit in federal district court

under 47 U.S.C. § 207.2

Autotel asserted three claims before the district court. Only

two remain on appeal. We consider each claim in turn.

DISCUSSION

I. Standard of Review

We review de novo the district court’s order granting a

2

47 U.S.C. § 207 provides, in relevant part: 

Any person claiming to be damaged by any common carrier subject to the provisions of this chapter may either make complaint

to the [FCC] as hereinafter provided for, or may bring suit for the

recovery of the damages for which such common carrier may be

liable under the provisions of this chapter, in any district court of

the United States of competent jurisdiction . . . . 

10554 AUTOTEL v. NEVADA BELL TELEPHONE COMPANY
motion to dismiss under Rule 12(b)(6). See Western Radio II,

678 F.3d at 975-76. We “ ‘generally consider only allegations

contained in the pleadings, exhibits attached to the complaint,

and matters properly subject to judicial notice.’ ” Id. at 976

(quoting Manzarek v. St. Paul Fire & Marine Ins. Co., 519

F.3d 1025, 1030-31 (9th Cir. 2008)). We accept as true all

well-pleaded factual allegations and construe them in the light

most favorable to the plaintiff. See id.

We likewise review de novo a district court’s grant of summary judgment. Verizon California, 462 F.3d at 1150. “We

must determine, viewing the evidence in the light most favorable to . . . the non-moving party, whether there are any genuine issues of material fact and whether the district court

correctly applied the substantive law.” Olsen v. Idaho State

Bd. of Med., 363 F.3d 916, 922 (9th Cir. 2004).

II. Failure to Negotiate in Good Faith

Autotel claims that AT&T Nevada violated 47 U.S.C.

§§ 251(c) and 252(a) by failing to negotiate in good faith “to

provide interconnection that comports with the [1996 Act].”

We hold that the district court properly dismissed this claim

because Autotel did not exhaust its administrative remedies.

[1] In Western Radio I, 530 F.3d at 1196, we held that

“prudential concerns require that [the plaintiff] present its

good faith claim to the PUC before bringing suit in district

court under § 207.” See also id. at 1200 (“[G]iven the nature

of [the plaintiff ’s] asserted cause of action and the role allotted to state commissions by Congress, . . . the PUC must

address [the plaintiff ’s] good faith claim before that claim

may be brought in district court.”). The parties agree that this

prudential exhaustion requirement applies to Autotel’s good

faith claim but disagree as to whether Autotel satisfied it. 

The PUCN twice rejected Autotel’s complaint without prejudice and without considering the merits because the comAUTOTEL v. NEVADA BELL TELEPHONE COMPANY 10555
plaint did not comply with the PUCN’s procedural rules. With

respect to the second filing, the PUCN noted that Autotel had

simply “changed the title of the document without addressing

any of the substantive deficiencies or inconsistencies.” The

PUCN “strongly recommended that [Autotel] retain or at least

consult with competent legal counsel” before refiling because

the incomplete submission “demonstrate[d] a lack of required

expertise and familiarity with the Commission’s rules and

regulations.” It explained that it would apply any filing fee

that Autotel had already paid to any new submission.

[2] Autotel contends that its actions were sufficient to satisfy the prudential exhaustion requirement set forth in Western Radio I. We disagree. In the words of the district court:

Were we to conclude that Autotel’s efforts were sufficient, parties seeking to avoid the state regulatory

process would have an easy row to hoe: they would

need only to present a noncompliant application with

the PUCN, wait for the claim to be dismissed, and

then file suit in federal court. 

Such an administrative bypass would undermine the statutory

and regulatory framework underlying the 1996 Act. See Western Radio I, 530 F.3d at 1201 (adopting prudential exhaustion

requirement to discourage bypass of the administrative process). 

In addition, it is undisputed that the PUCN did not decide

Autotel’s good faith claim on the merits. Western Radio II

presented a similar scenario. There, the plaintiff attempted to

raise its good faith claim before the state PUC by an improper

request for arbitration. See Western Radio II, 678 F.3d at 975.

The PUC summarily dismissed the petition without reaching

the merits. See id. We concluded that the PUC’s dismissal of

the petition “in no way represented a ruling on any good faith

claim” and therefore did not support the plaintiff ’s contention

that it had exhausted its claim. Id. at 978. We therefore

10556 AUTOTEL v. NEVADA BELL TELEPHONE COMPANY
affirmed the district court’s dismissal for failure to exhaust

because the good faith claim “was never properly presented

to, nor decided by, the PUC.” Id. at 979. 

The same is true here. The PUCN summarily rejected

Autotel’s complaint on procedural grounds and made no mention of the substantive merits of Autotel’s claim. It dismissed

the complaint without prejudice and explained that Autotel

could refile without paying additional fees. In addition to

eviscerating Western Radio I’s exhaustion requirement, permitting this sort of purely procedural decision to constitute

administrative exhaustion would undermine the “uniquely

prominent role” that Congress intended state PUCs to have in

the process of negotiation and approval of interconnection

agreements under the 1996 Act, “including the duty to interpret and enforce the obligation to negotiate in good faith.”

Western Radio I, 530 F.3d at 1200-01. It would upset the balance that we struck in Western Radio I “between the rights of

parties to bring their private causes of action in federal court

and a statutory scheme providing an alternative means of resolution before an agency.” Id. at 1202.

Autotel also argues that its complaint to the PUCN was not

procedurally flawed and that any failure to exhaust should be

excused because returning to the PUCN, which “refuses to

address the good faith issue,” would be futile. These arguments are unpersuasive. The PUCN did not refuse to address

Autotel’s good faith claim. Rather, it enforced the procedural

requirements of the Nevada Administrative Code. See, e.g.,

Nev. Admin. Code §§ 704.68035-.680365 (regarding telecommunications complaints); Nev. Admin. Code §§ 703.280-

.296 (regarding petitions submitted to the PUCN pursuant to

47 U.S.C. §§ 251 and 252). There is no reason to believe that

had Autotel submitted a procedurally conforming filing, the

PUCN would have rejected it.3 Nor do we agree that because

3For the first time in its reply brief, Autotel argues that state law does

not provide a process through which it can exhaust its claim that AT&T

AUTOTEL v. NEVADA BELL TELEPHONE COMPANY 10557
Autotel appeared before the PUCN pro se, the Commission

should have overlooked any procedural defects in Autotel’s

complaint. See Western Radio II, 678 F.3d at 978-79 (rejecting the same argument). We are not reviewing the PUCN

decision, and the PUCN is not a party to this action. In addition, unlike the pleadings rejected in the cases Autotel cites in

support of this argument, Autotel’s nonconforming complaints were dismissed without prejudice. This is not “an

unjust and excessive sanction.” Cripps v. Life Ins. Co. of N.

Am., 980 F.2d 1261, 1268 (9th Cir. 1992). 

Finally, we reject Autotel’s contention — unsupported by

citation to authority — that the procedures set forth in the

Nevada Administrative Code do not apply to its PUCN complaint because its claim was based on federal law. To the contrary, Nevada law expressly provides that the provisions of

the Nevada Administrative Code govern practice before the

PUCN, including in proceedings under the 1996 Act. See,

e.g., Nev. Admin. Code § 703.105 (general practice before the

PUCN); Nev. Admin. Code § 703.280 (petitions submitted

under the 1996 Act); Nev. Admin. Code § 704.680351 (complaints relating to public utilities, including telecommunications carriers). We recognized that state procedural rules

would govern such proceedings when we cited the Oregon

PUC’s procedures as pertinent to our prudential exhaustion

analysis in Western Radio I. See 530 F.3d at 1198.

Nevada violated its duty to negotiate in good faith because there is no “applicable law that requires the state commissions to even decide issues

regarding bad faith in negotiation.” (Emphasis omitted.) “[A]rguments

raised for the first time in a reply brief are waived.” Turtle Island Restoration Network v. U.S. Dep’t of Commerce, 672 F.3d 1160, 1166 n.8 (9th

Cir. 2012) (internal quotation marks omitted). In addition, Autotel cites no

authority in support of this proposition, and nothing in the PUCN’s notices

rejecting Autotel’s complaints suggests the Commission believed it lack

authority to adjudicate the claim. “We will not do an appellant’s work for

it, either by manufacturing its legal arguments, or by combing the record

on its behalf for factual support.” Western Radio II, 678 F.3d at 979. 

10558 AUTOTEL v. NEVADA BELL TELEPHONE COMPANY
III. Failure to Provide Interim Interconnection

Autotel contends that AT&T Nevada violated 47 C.F.R.

§§ 51.715 and 20.11(e) by refusing to provide digital interconnection with symmetrical pricing on an interim basis during negotiation of a permanent interconnection agreement.

We agree with the district court that because Autotel had an

existing interconnection arrangement with AT&T Nevada,

AT&T Nevada had no obligation to provide interim interconnection or symmetrical pricing under these sections.4

First, Autotel argues that under 47 C.F.R. § 51.715, once it

initiated negotiation of an interconnection agreement under

the 1996 Act (in August 1996), AT&T Nevada was required

to provide interim digital interconnection for the transport and

termination of telecommunications traffic at symmetrical rates.5

Autotel contends that the analog interconnection arrangement

between Autotel and AT&T Nevada did not satisfy AT&T

Nevada’s interconnection obligation because it was established before Congress passed the 1996 Act and did not provide for reciprocal compensation. We disagree.

[3] By its terms, 47 C.F.R. § 51.715 requires an incumbent

LEC such as AT&T Nevada to provide transport and termination of local traffic under an interim arrangement only when

it receives such a request from a telecommunications carrier

that does not already have an interconnection arrangement

4The district court also found that even if AT&T Nevada did have such

an obligation, Autotel’s claim was time barred. Because we agree with the

district court that AT&T Nevada had no regulatory obligation to provide

an interim interconnection arrangement, we do not address this alternate

holding. 

5Under a symmetrical compensation arrangement, “the rate paid by an

incumbent LEC to another telecommunications carrier for transport and

termination of traffic originated by the incumbent LEC is the same as the

rate the incumbent LEC charges to transport and terminate traffic originated by the other telecommunications carrier.” Local Competition Order,

11 FCC Rcd. at 16031, ¶ 1069. 

AUTOTEL v. NEVADA BELL TELEPHONE COMPANY 10559
providing for the transport and termination of telecommunications traffic by the incumbent. See 47 C.F.R. § 51.715(a).6

Similarly, the obligation to provide interim transport and ter6Until recently, 47 C.F.R. § 51.715 provided, in relevant part: 

(a) Upon request from a telecommunications carrier without an

existing interconnection arrangement with an incumbent LEC,

the incumbent LEC shall provide transport and termination of

telecommunications traffic immediately under an interim

arrangement, pending resolution of negotiation or arbitration

regarding transport and termination rates and approval of such

rates by a state commission under sections 251 and 252 of the

Act. 

(1) This requirement shall not apply when the requesting carrier has an existing interconnection arrangement that provides

for the transport and termination of telecommunications traffic

by the incumbent LEC. 

(2) A telecommunications carrier may take advantage of such

an interim arrangement only after it has requested negotiation

with the incumbent LEC pursuant to § 51.301. 

(b) Upon receipt of a request as described in paragraph (a) of this

section, an incumbent LEC must, without unreasonable delay,

establish an interim arrangement for transport and termination of

telecommunications traffic at symmetrical rates. 

(1) In a state in which the state commission has established

transport and termination rates based on forward-looking economic cost studies, an incumbent LEC shall use these statedetermined rates as interim transport and termination rates. 

(2) In a state in which the state commission has established

transport and termination rates consistent with the default price

ranges and ceilings described in § 51.707, an incumbent LEC

shall use these state-determined rates as interim rates. 

(3) In a state in which the state commission has neither established transport and termination rates based on forward-looking

economic cost studies nor established transport and termination

rates consistent with the default price ranges described in

§ 51.707, an incumbent LEC shall set interim transport and termination rates at the default ceilings for end-office switching (0.4

cents per minute of use), tandem switching (0.15 cents per minute

of use), and transport (as described in § 51.707(b)(2)). 

47 C.F.R. § 51.715 (2001) (emphasis added). The FCC amended the rule,

effective December 29, 2011. See Establishing Just and Reasonable Rates

for Local Exchange Carriers, 76 Fed. Reg. 73,830, 73,856 (Nov. 29,

2011). Because the amendments do not alter the outcome, we refer to the

regulation as it was in effect when the parties briefed and argued the case.

10560 AUTOTEL v. NEVADA BELL TELEPHONE COMPANY
mination of telecommunications traffic at symmetrical rates is

triggered “[u]pon receipt of a request as described in paragraph (a) of this section,” 47 C.F.R. § 51.715(b), which refers

to a “request from a telecommunications carrier without an

existing interconnection arrangement,” 47 C.F.R. § 51.715(a)

(emphasis added). The FCC promulgated this regulation to

accelerate the pace at which new entrants to the local market

could initiate service:

We are concerned that some new entrants that do not

already have interconnection arrangements with

incumbent LECs may face delays in initiating service solely because of the need to negotiate transport

and termination arrangements with the incumbent

LEC. . . . To promote the Act’s goal of rapid competition in the local exchange, we order incumbent

LECs upon request from new entrants to provide

transport and termination of traffic, on an interim

basis, pending resolution of negotiation and arbitration regarding transport and termination prices, and

approval by the state commission. . . . We also conclude that interim prices for transport and termination shall be symmetrical. Because the purpose of

this interim termination requirement is to permit

parties without existing interconnection agreements

to enter the market expeditiously, this requirement

shall not apply with respect to requesting carriers

that have existing interconnection arrangements that

provide for termination of local traffic by the incumbent LEC.

Local Competition Order, 11 FCC Rcd. at 16029, ¶ 1065

(emphasis added). 

[4] It is undisputed that at all relevant times, Autotel had

an existing interconnection arrangement with AT&T Nevada

that provided for the transport and termination of local telecommunications traffic. Thus, AT&T Nevada had no obligaAUTOTEL v. NEVADA BELL TELEPHONE COMPANY 10561
tion under § 51.715 to establish an interim arrangement with

symmetrical rates.

[5] Autotel also argues that the FCC voided Autotel’s

existing arrangement with AT&T Nevada when it amended

47 C.F.R. § 20.11 to prohibit incumbent LECs from imposing

tariff-based compensation obligations on CMRS providers.

See supra at 10553; Intercarrier Compensation, 70 Fed. Reg.

16,141, 16,141 (Mar. 30, 2005) (prohibiting LECs “from

imposing compensation obligations for non-access traffic pursuant to tariff” and providing that “any existing wireless termination tariffs shall no longer apply upon the effective date

of these amendments to our rules”); 47 C.F.R. § 20.11(d)

(“Local exchange carriers may not impose compensation obligations for traffic not subject to access charges upon commercial mobile radio service providers pursuant to tariffs.”). The

FCC adopted this rule after several CMRS providers argued

that LECs who charged CMRS providers by tariff were effectively bypassing the negotiation and reciprocal compensation

regime contemplated by the 1996 Act and FCC regulations.

See In re Developing a Unified Intercarrier Compensation

Regime (T-Mobile Order), 20 FCC Rcd. 4855, 4855, ¶ 1 (Feb.

24, 2005). 

[6] Although the rule change may have prohibited AT&T

Nevada from continuing to charge Autotel tariff-based rates

for transport and termination of local traffic,7 nothing suggests

that it disrupted Autotel’s interconnection with AT&T

Nevada’s network. It appears to be undisputed that even after

the rule’s effective date, Autotel retained its analog interconnection, which continued to provide for the transport and termination of local telecommunications traffic.

Next, Autotel seeks to leverage the fact that in November

2005, AT&T Nevada invoked 47 C.F.R. § 20.11(e) to revive

7The district court found as much, but this question is not before us on

appeal, and we do not decide it. 

10562 AUTOTEL v. NEVADA BELL TELEPHONE COMPANY
the parties’ negotiation of an agreement under the 1996 Act.

See supra at 10553-54. Autotel contends that under

§ 20.11(e), when an incumbent LEC initiates negotiations

under the 1996 Act, the interim pricing requirement in

§ 51.715(b) operates independently of § 51.715(a), and

applies even when there is an existing interconnection

arrangement between the parties.

As adopted in March 2005, § 20.11(e) provided, 

An incumbent local exchange carrier may request

interconnection from a commercial mobile radio service provider and invoke the negotiation and arbitration procedures contained in section 252 of the Act.

A commercial mobile radio service provider receiving a request for interconnection must negotiate in

good faith and must, if requested, submit to arbitration by the state commission. Once a request for

interconnection is made, the interim transport and

termination pricing described in § 51.715 of this

chapter shall apply.

47 C.F.R. § 20.11(e) (emphasis added).8 Autotel contends that

the italicized sentence refers only to the transport and termination rates described in § 51.715(b)(1)-(3) and does not

incorporate § 51.715(a), which expressly limits the rule’s

application to circumstances in which there is not already an

existing interconnection arrangement. AT&T Nevada, for its

part, argues that § 20.11(e)’s cross-reference to § 51.715

encompasses § 51.715 in its entirety and therefore — like

§ 51.715 — applies only when there is no existing intercon8The FCC amended § 20.11, effective January 11, 2012. See Developing an Unified Intercarrier Compensation Regime, 77 Fed. Reg. 1,637,

1,640 (Jan. 11, 2012). Because the amendments do not alter the outcome

— if anything, they further undermine Autotel’s argument by eliminating

the final sentence of subparagraph (e) — we refer to the regulation as it

was in effect when the parties briefed and argued the case. 

AUTOTEL v. NEVADA BELL TELEPHONE COMPANY 10563
nection arrangement between the incumbent LEC and the

CMRS provider — essentially creating parallelism between

the two regulations.

That § 20.11(e) refers to “the interim transport and termination pricing described in § 51.715” lends some support to

Autotel’s position. Id. (emphasis added). It is plausible that

this sentence refers only to the rates set forth in § 51.715(b)

for interim transport and termination of telecommunications

traffic, and not to § 51.715(a)’s obligation to provide such

transport and termination in the first place, which, as we

explain above, applies only if the competing carrier does not

have an existing interconnection arrangement. This is, to

some extent, consistent with the FCC’s explanation of the

rule. See Intercarrier Compensation, 70 Fed. Reg. at 16141

(explaining that under § 20.11(e), “during the period of negotiation and arbitration, the parties will be entitled to compensation in accordance with the interim rate provisions set forth

in § 51.715” (emphasis added)). 

[7] Nevertheless, considering the applicable regulations

together, we conclude that Autotel has not established that

§ 20.11(e) created an independent pricing obligation. On its

face, § 20.11(e)’s cross-reference cites “§ 51.715 of this chapter” generally, rather than subsection (b) specifically. In addition, § 51.715 is titled “Interim transport and termination

pricing.” Section 20.11(e)’s use of that phrase is thus more

naturally read as a reference to § 51.715 generally, not as an

implied reference to subsection (b) alone. We therefore conclude that § 20.11(e)’s cross-reference incorporates all of

§ 51.715. Autotel’s argument might have traction if Autotel

could show that the interim transport and termination requirement in § 51.715(a) had no relevance or practical application

in the circumstances contemplated by § 20.11(e) — when an

incumbent LEC initiates negotiation of an interconnection

agreement — or that an incumbent LEC would never invoke

§ 20.11(e) to initiate negotiations with a CMRS provider with

whom it did not have an existing interconnection arrange10564 AUTOTEL v. NEVADA BELL TELEPHONE COMPANY
ment. Autotel has not made this argument, however, and the

record does not appear to support it.

[8] To the contrary, the administrative history of the rule

suggests that the FCC expected incumbent LECs to use

§ 20.11(e) to secure agreements with CMRS providers with

whom they did not previously have interconnection arrangements. In its order announcing the amendments to § 20.11, the

FCC acknowledged that by relying on intermediary networks,

many CMRS providers were able to exchange telecommunications traffic with incumbent LECs without entering into

interconnection agreements or other compensation arrangements with the incumbents. See T-Mobile Order, 20 FCC

Rcd. at 4857, ¶ 5. It recognized that without the ability to

charge by tariff (which the amendments prohibited, see supra

at 10562 (discussing § 20.11(d))), incumbent LECs “may

have . . . difficulty obtaining compensation from CMRS providers” because they could not compel CMRS providers to

negotiate or arbitrate interconnection agreements under the

1996 Act. T-Mobile Order, 20 FCC Rcd. at 4864, ¶ 15. The

FCC promulgated paragraph (e) to remedy this gap in the regulatory regime — it granted to incumbent LECs the same

ability as CMRS providers to compel negotiation and arbitration under § 252 of the 1996 Act. See id. at 4864-65, ¶ 16.

Because negotiations might take several months, the FCC “establish[ed] interim compensation requirements under section

20.11 consistent with those already provided in section

51.715.” Id. at 4865, ¶ 16 (emphasis added). As we explained

above, § 51.715 requires an incumbent to provide an interim

arrangement with symmetrical pricing only to a competing

carrier that does not already have an existing interconnection

arrangement with the incumbent.

The unfairness that Autotel perceives in this regime appears

to have been ameliorated, at least for CMRS providers such

as Autotel, by § 51.717, which long provided for symmetrical

reciprocal compensation during renegotiation of existing

AUTOTEL v. NEVADA BELL TELEPHONE COMPANY 10565
arrangements between CMRS providers and incumbent LECs.

Section 51.717 provided,

(a) Any CMRS provider that operates under an

arrangement with an incumbent LEC that was established before August 8, 1996 and that provides for

non-reciprocal compensation for transport and termination of telecommunications traffic is entitled to

renegotiate these arrangements with no termination

liability or other contract penalties.

(b) From the date that a CMRS provider makes a

request under paragraph (a) of this section until a

new agreement has been either arbitrated or negotiated and has been approved by a state commission,

the CMRS provider shall be entitled to assess upon

the incumbent LEC the same rates for the transport

and termination of telecommunications traffic that

the incumbent LEC assesses upon the CMRS provider pursuant to the pre-existing arrangement.

47 C.F.R. § 51.717. In promulgating § 51.717, the FCC determined that CMRS providers operating pursuant to arrangements that predated enactment of the 1996 Act should be

permitted to renegotiate those arrangements under the more

favorable post-1996 Act regime without termination liability

or other contractual penalty. See Local Competition Order, 11

FCC Rcd. at 16044-45, ¶¶ 1094-1095. 

Autotel alleged in its complaint that AT&T Nevada “refused to pay reciprocal compensation as required by 47 CFR

51.717(b).” It reiterated this allegation in opposition to summary judgment and in briefing before this court. Autotel did

not, however, assert a claim under § 51.717, and the district

court did not address it. Likewise, on appeal AT&T Nevada

did not respond in briefing or at oral argument to Autotel’s

arguments relating to § 51.717.

10566 AUTOTEL v. NEVADA BELL TELEPHONE COMPANY
Whether relief is available to Autotel under § 51.717 turns

on a number of factual and legal issues that the district court

has not yet addressed. Among other things, we note that the

FCC recently revised the reciprocal pricing regulations at

issue here and eliminated § 51.717 altogether. See Establishing Just and Reasonable Rates for Local Exchange Carriers,

76 Fed. Reg. at 73,856. We leave it to the district court to

consider in the first instance what, if any, impact these

changes have on any claim Autotel may have under § 51.717.9

[9] We therefore (1) affirm the district court’s dismissal of

Autotel’s good faith claim; (2) affirm the district court’s

grant of summary judgment on Autotel’s claim under 47

C.F.R. §§ 51.715 and 20.11; and (3) remand to the district

court for the limited purpose of considering whether Autotel

adequately pled a claim for relief under § 51.717 and, if so,

for further proceedings as appropriate.

The parties shall bear their own costs on appeal.

AFFIRMED AND REMANDED.

9Autotel argues in a single sentence in its opening brief that AT&T

Nevada violated §§ 51.715 and 20.11 by “disconnect[ing] existing interconnection.” This contention appears to refer to AT&T Nevada’s disconnection of a single line that Autotel used to test and administer its switch,

not for subscriber traffic. Although Autotel raised this argument before the

district court, the conclusory statement in its opening brief, unaccompanied by argument or citation to the record, is insufficient to preserve the

issue for appeal, and we do not address it. See Maldonado v. Morales, 556

F.3d 1037, 1048 n.4 (9th Cir. 2009) (“Arguments made in passing and

inadequately briefed are waived.”); Retlaw Broad. Co. v. NLRB, 53 F.3d

1002, 1005 n.1 (9th Cir. 1995) (“Although the issue . . . is summarily mentioned in [appellant’s] opening brief, it has not been fully briefed, and we

therefore decline to address it.”). 

AUTOTEL v. NEVADA BELL TELEPHONE COMPANY 10567