IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

November 16, 2005 Session

CONSUMER ADVOCATE DIVISION OF THE OFFICE OF THE

ATTORNEY GENERAL v. TENNESSEE REGULATORY AUTHORITY

A Direct Appeal from the Tennessee Regulatory Authority

Nos. 03-00512, 03-00554, 03-00624

Nos. M2004-01481-COA-R12-CV - Filed February 1, 2006

M2004-01482-COA-R12-CV - Filed February 1, 2006

M2004-01485-COA-R12-CV - Filed February 1, 2006

This is a consolidation of three appeals involving three tariffs filed by BellSouth

Telecommunications, Inc. with the Tennessee Regulatory Authority. All three tariffs contained

bundled offerings of telecommunications services and non-telecommunications services. The

Consumer Advocate Division ofthe Office of the Attorney General was allowed to intervene in these

proceedings in order to address the question of BellSouth’s obligation, under the Federal

Telecommunications Act of 1996, to offer for resale the telecommunications services contained in

the bundled offerings. The Tennessee Regulatory Authority entered orders allowing the tariffs to

go into effect without the telecommunications service portions thereof being offered for resale. The

Consumer Advocate appealed and the cases were consolidated for that purpose. In 2005, during the

pendency of this appeal, the Tennessee General Assembly enacted T.C.A.§65-37-103 (Supp. 2005).

This statute specifically exempts retail offerings of combinations or bundles of products or services

from the jurisdiction of the Tennessee Regulatory Authority. In addition, all three of the tariffs at

issue in this case expired, by their own terms, during the pendency of this appeal, rendering the

appeal moot. Because we do not find that these appeals fall within any of the exceptions to the

mootness doctrine, we dismiss the appeal as moot. 

Tenn. R. Civ. P. 12, Petition for Review; Appeal of the Tennessee Regulatory Authority

Dismissed

W. FRANK CRAWFORD, P.J., W.S., delivered the opinion of the court, in which ALAN E. HIGHERS,

J. and HOLLY M. KIRBY, J., joined.

Paul G. Summers, Attorney General and Reporter; Vance L. Broemel, Assistant Attorney General;

Joe Shirley, Assistant Attorney General for Petitioner, Consumer Advocate and Protection Division
 “Incumbent telephone companies” are generally the former monopoly service providers that existed when the 1

Federal Telecommunications Act of 1996 was enacted, as opposed to those companies that enter the local markets to

compete with incumbents, which are generally known as “competing companies.” Companies that compete with

incumbents by resale are also know as “resellers.” 

 “Resale” is a legally-prescribed method of opening local telecommunications markets to competition whereby 2

competing companies (or resellers) purchase the incumbent companies’ retail telecommunications services at wholesale

prices established by state utility commissions and then “resell” these services to their own retail customers. See 47

U.S.C.A. §§ 251(c)(4), 252(d)(3).

 “Bundling” is the practice of offering multiple services to consumers in one deal, usually at a discounted price.

3

For example, a telephone company may “bundle” local telephone service (a telecommunications service) that normally

costs consumers $30 per month and Internet service (a non-telecommunications service) that normally costs $25 per

month into one package that is offered to consumers at a discounted price of $45 per month (as opposed to the $55 cost

if purchased separately).

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J. Richard Collier, General Counsel; Carolyn E. Reed, Counsel; Randal L. Gilliam, Counsel; Monica

Smith-Ashford, Counsel of Nashville for Respondent-Appellee, Tennessee Regulatory Authority

R. Dale Grimes and Kristin J. Hazelwood of Nashville; Guy M. Hicks and Joelle Phillips of

Nashville for Respondent-Appellee, BellSouth Telecommunications, Inc.

OPINION

During the Fall and Winter of 2003, the Tennessee Regulatory Authority (the “TRA”) opened

four dockets to address an incumbent telephone company’s legal obligation to make its retail 1

telecommunications services available for resale to customers of competing companies when such 2

telecommunications services and other non-telecommunications services are bundled into a single

discounted offering. The four dockets are as follows: 3

Sprint’s Safe and Sound Tariff

TRA Docket No. 03-00442, In re: Sprint United Tariff 2003-710 to Introduce Safe and

Sound Solution, was opened to address the validity of a tariff filed by Sprint-United (“Sprint”) on

June 30, 2003 (the “Safe and Sound Tariff”). Although the Safe and Sound Tariff is not the subject

of the instant appeal, the procedural history of that tariff bears upon the issue presented for review

in the case at bar. Specifically, in the context of the Combined Bill Reward proceedings (see infra),

BellSouth Telecommunications, Inc. (“BellSouth” and, together with the TRA, “Appellees”)

conceded that the Safe and Sound docket would be the forum in which to resolve the issue of the

extent to which federal resale requirements under §251(c) of the Federal Telecommunications Act

of 1996 (the “Act”) apply to telecommunications services that are bundled with nontelecommunications services. Consequently, we will address the history of the Safe and Sound
 On November 21, 2003, and subsequent to the filing of all briefs responding to the legal issues presented at 4

the October 4, 2003 Authority Conference (see infra), AT&T petitioned to intervene in the Safe and Sound docket. In

its petition, AT&T joined the Consumer Advocate’s position that approval of the Safe and Sound Tariff could result in

allowing carriers to circumvent the federal resale requirements. At the December 15, 2003 Authority Conference, the

Panel voted to allow AT&T to intervene in the Safe and Sound docket on a going-forward basis but did not permit AT&T

to file briefs or further argue the threshold issues identified on October 6, 2003 regarding resale obligations for bundled

offerings.

 After the parties submitted their briefs, both the Integrated Solutions and Wireless Answers panels decided, 5

on November 24, 2003, to hold those dockets in abeyance indefinitely “to permit deliberations and a decision on the issue

(continued...)

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Tariff. The Safe and Sound Tariff offered discounts on two of Sprint’s regulated services, access

lines and caller ID. 

The Consumer Advocate Division of the Office of the Attorney General (“Consumer

Advocate,” or “Appellant”) filed a petition to intervene in the Safe and Sound docket on September

5, 2003 on the basis that the Safe and Sound Tariff allegedly sought to exempt certain

telecommunications services from the resale requirements of the Act without identifying support for

such exemptions. The Consumer Advocate stated that the TRA should not approve the Safe and

Sound Tariff, but rather should convene a contested case proceeding and permit the Consumer

Advocate to intervene in that case. BellSouth also filed a petition to intervene in the Safe and Sound

docket on September 11, 2003 on the basis that the Safe and Sound Tariff was similar to offers made

by competitors in the industry, and based on BellSouth’s own activities in providing discounted

offers and packages to Tennessee Customers.

On September 16, 2003, Sprint filed its response to the Consumer Advocate’s petition to

intervene, stating that the Safe and Sound Tariff was not subject to the resale requirements of the Act

and asking that the tariff be allowed to go into effect. Following an October 4, 2003 Authority

Conference, on October 21, 2003, the TRA entered an Order Convening a Contested Case

Proceeding and Granting Intervention in the Safe and Sound docket. The Panel found that 4

BellSouth and the Consumer Advocate “have demonstrated a vested interest in this matter and,

therefore, voted unanimously to convene a contested case proceeding and to grant intervention to

both BellSouth and the [Consumer Advocate].” The Safe and Sound panel “also found that the

resale requirement is a threshold issue...[and] that it may present a case of first impression.”

Accordingly, the Panel ordered Sprint, BellSouth, and the Consumer Advocate to file briefs and

reply briefs on the question of whether any law requires an incumbent telephone company to offer

for resale at wholesale prices all or any part of a retail offering that bundles regulated

telecommunications services and other non-regulated services. Sprint, BellSouth, and the Consumer

Advocate submitted briefs and reply briefs on October 20, 2003 and October 27, 2003 respectively.

Both Sprint and BellSouth argued that incumbent companies have no duty to make their

telecommunications services available for resale at wholesale prices if such services are bundled

with non-telecommunications services. The Consumer Advocate argued that such

telecommunications services are subject to applicable resale requirements and, therefore, must be

made available, via resale, to the customers of companies that compete with incumbent companies.5
(...continued) 5

of federal resale requirements in [Safe and Sound]” (see discussion infra).

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At the Authority Conference held on December 15, 2003, the TRA decided the threshold

resale issue. After finding that the Act “requires incumbent local exchange carriers to make

telecommunicationsservices that are provided by the carrier at retail available for resale at wholesale

rates [and that] the telecommunications services offered as bundled in this [Safe and Sound]

tariff...are retail offerings that must be available for resale,” the Safe and Sound panel unanimously

decided that “the tariff as it exists today cannot be approved.” 

On December 29, 2003, BellSouth filed a motion requesting the TRA to reconsider its Safe

and Sound decision. The panel never ruled on BellSouth’s motion. Rather, on December 29, 2003,

Sprint filed a letter withdrawing its Safe and Sound Tariff. In the letter, Sprint asserted that the

company’s position, as stated in its Safe and Sound pleadings, was appropriate, and that Sprint

would rather withdraw the tariff than negotiate with the intervening parties to amend the tariff to

conform with the agency’s Safe and Sound decision.

The remaining tariffs were submitted by BellSouth and are the subject of this consolidated

appeal. We review their respective histories, to wit:

BellSouth’s Integrated Solutions Tariff

TRA Docket No. 03-00512, In re: Promotion to Introduce BellSouth Integrated Solutions

Program Tariff Number 2003956, opened to address the validity of a tariff filed by BellSouth on

August 29, 2003 (the “Integrated Solutions Tariff”). The Consumer Advocate filed a “Complaint

and Petition to Intervene” on September 12, 2003. Specifically, the Consumer Advocate asserted

that BellSouth had offered no legal authority for exempting the Integrated Solutions Tariff (or at least

the telecommunications services “bundled” therein) from the resale requirements of the Act.

Accordingly, the Consumer Advocate asserted that the TRA should not approve the Integrated

Solutions Tariff, asked that a contested case be convened, and asked that it be permitted to intervene

in the contested case.

At the September 22, 2003 Authority Conference, the Panel voted to suspend the Integrated

Solutions Tariff for 30 days and ordered BellSouth to respond to the Consumer Advocate’s petition

to intervene within seven days. On September 25, 2003, BellSouth filed the “Comments of

BellSouth Telecommunications, Inc. in support of its Tariff to Introduce BellSouth Integrated

Solutions and in Opposition to Position of Consumer Advocate Division.” On October 21,

2003, the Panel voted to suspend the Integrated Solutions Tariff for an additional 45 days (until

December 10, 2003) pending the outcome of the Safe and Sound docket. At the November 24, 2003

Authority Conference, the Panel voted to suspend the Integrated Solutions Tariff indefinitely,

pending the outcome of the Safe and Sound docket. On December 8, 2003, BellSouth filed a request

that the TRA hear oral argument in the Integrated Solutions docket at the regularly scheduled

December 15, 2003 Authority Conference. On December 15, 2003, the Panel moved to defer
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consideration of the Integrated Solutions Tariff until January 5, 2004. On December 29, 2003, Sprint

filed its letter in the Safe and Sound docket withdrawing the Safe and Sound Tariff.

During the January 5, 2004 Authority Conference, the Panel voted to approve the Integrated

Solutions Tariff on the grounds that the bundled services offered in the tariff foster competition and

are individually available for resale under BellSouth’s General Subscriber Tariff. The Panel voted

to allow the Integrated Solutions Tariff to go into effect immediately. The Consumer Advocate

asserts that this decision was in error. Specifically, it states that “although the Safe and Sound panel

had ruled just three weeks earlier, on December 15, that bundled service tariffs, such as the ones at

issue in [the] Safe and Sound and Integrated Solutions, must be made available for resale at

wholesale prices, the Integrated Solutions panel reversed course [in reaching its decision on the

Integrated Solutions Tariff].”

BellSouth’s Combined Bill Reward Tariff

TRA Docket No. 03-00624, In re: Tariff to Establish Consumer Wireless Combined Bill

Reward Offer–Tariff Number 2003-1379, opened to address the validity of a tariff filed by BellSouth

on December 3, 2004 (the “Combined Bill Reward Tariff”). The Combined Bill Reward Tariff was

offered by BellSouth as a promotion set to begin on January 2, 2004 and to conclude on December

27, 2004. The Combined Bill Reward Tariff included BellSouth landline service and Cingular

Wireless service.

On December 3, 2003, the Telecommunications Division requested that the Combined Bill

Reward Tariff be assigned a docket number and be added to the TRA’s agenda for consideration at

its regularly-scheduled Authority Conference on December 15, 2003. On December 5, 2003, the

Telecommunications Division sent a data request to BellSouth regarding the Combined Bill Reward

Tariff’s availability for resale.

On December 8, 2003, the Consumer Advocate filed its “Complaint and Petition to

Intervene,” in which the Consumer Advocate asserted that the Combined Bill Reward Tariff did not

explicitly provide that the tariff was subject to the resale requirements of the Act. The Consumer

Advocate stated that the TRA should not approve the Combined Bill Reward Tariff, asked that a

contested case be convened, and asked that it be permitted to intervene in that case. On December

11, 2003, BellSouth filed “BellSouth Telecommunications, Inc.’s Response to Consumer Advocate

Division’s Complaint and Petition to Intervene.” In this Response, BellSouth objected to the

convening of a contested case on the basis that so doing would result in a delay in bringing the

promotion to Tennessee customers. In the alternative, BellSouth asserted that, if the Authority was

inclined to convene a contested case in the matter, then the Authority should nonetheless allow the

Combined Bill Reward Tariff to go into effect pending resolution of the Consumer Advocate’s

Intervention.

On December 12, 2003, BellSouth filed its responses to the Telecommunications Division’s

data request. Therein, BellSouth explained its position that the Combined Bill Reward Tariff was
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not a “bundle” to the extent that it did not offer customers two or more products at a single price and

that, because the tariff does not provide regulated services at a discount, it was not available for

resale. BellSouth further explained that the telecommunications services offered in the Combined

Bill Reward Tariff were “available for resale, on a stand-alone basis, at the standard tariff price

minus the wholesale discount established by the TRA for such services” and that there was no

additional “obligation to make individual BellSouth-provided telecommunications services available

for resale at a rate that is not available in the retail marketplace.”

The Authority considered the Combined Bill Reward Tariff at the regularly scheduled

Authority Conference on December 15, 2003. At the Conference, the Consumer Advocate stated

its position that the Combined Bill Reward Tariff was dependent upon the proceedings in the Safe

and Sound docket. The Consumer Advocate stated that the Combined Bill Reward Tariff presented

a factual issue of whether the tariff would adversely affect competition and that BellSouth should

bear the burden of proof in resolving the issue. BellSouth appeared through counsel and argued that

the Combined Bill Reward docket presented only legal issues and that a contested case was not

warranted. At the close of the December 15, 2003 proceeding, and with the agreement of the parties,

the Panel voted to require each party to submit a brief addressing the issue of whether a contested

case should be convened in the Combined Bill Reward docket. The Panel voted to suspend the

Combined Bill Reward Tariff until January 5, 2004. BellSouth filed its brief on December 22, 2003,

and the Consumer Advocate filed its brief on December 30, 2003.

At the January 5, 2004 Authority Conference, the Panel re-suspended the Combined Bill

Reward Tariff until January 8, 2004. The Panel reconvened on January 8, 2004 to consider the

Combined Bill Reward Tariff and Wireless Answers Tariff, see discussion infra. At that conference,

the Panel determined that consideration of the resale issue was premature based on the fact that no

reseller had expressed an interest in reselling the tariffs. The Panel voted to allow the Combined Bill

Reward Tariff and the Wireless Answers Tariff to take effect immediately.

BellSouth’s Wireless Answers Tariff

TRA Docket No. 03-00554, In re: Tariff to Establish Wireless Answers Promotion-Tariff

Number 2003-1036, opened to address the validity of a tariff filed by BellSouth on September 19,

2003 (the “Wireless Answers Tariff”). The Wireless Answers Tariff included various BellSouth

landline services, voicemail, and Cingular Wireless service. On October 16, 2003, the Consumer

Advocate filed its “Petition to Intervene in the Wireless Answers Docket.” In its petition, the

Consumer Advocate alleged that the Wireless Answers Tariff did not explicitly provide that the

offering was subject to the resale requirements of the Act. As with the Integrated Solutions Tariff,

the Consumer Advocate asked that the Wireless Answers Tariff not be approved, that a contested

case be convened, and that the Consumer Advocate be permitted to intervene in that contested case.

The Wireless Answers Tariff was considered during the regularly scheduled Authority

Conference held on October 21, 2003. The Panel voted to suspend the tariff for 45 days to allow

BellSouth to respond to the Consumer Advocate’s petition to intervene, and to allow for the filing
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of briefs in the Safe and Sound docket. BellSouth filed its “Response of BellSouth to Petition of

Consumer Advocate to Intervene” on November 12, 2003. In its Response, BellSouth objected to

the convening of a contested case on the basis that the Consumer Advocate had made no showing

of any need to engage in the delay involved in a contested case. The Wireless Answers Tariff was

re-suspended at the November 24, 2003 Authority Conference.

At the December 15, 2003 Authority Conference, the Panel considered the Wireless Answers

Tariff. At the close of that proceeding, and with the agreement of the parties, the Panel voted to

require each party to submit a brief addressing the issue of whether a contested case should be

convened in the Wireless Answers docket. The parties agreed that each would file a single brief in

the Wireless Answers and Combined Bill Reward dockets. BellSouth filed its brief on December

22, 2003, and the Consumer Advocate filed its brief on December 30, 2003.

The Panel convened on January 8, 2004 to consider the Combined Bill Reward Tariff and

the Wireless Answers Tariff. As discussed above, at this meeting, a majority of the Panel

determined that consideration of the resale issue was premature on the basis that no reseller had

expressed an interest in reselling these tariffs. The Panel voted to allow the Combined Bill Reward

Tariff and the Wireless Answers Tariff to take effect immediately and to consider BellSouth’s resale

obligations only upon complaint from a reseller alleging that the telecommunications services at

issue were not available for resale at the discounted bundled rates.

The TRA entered final orders in BellSouth’s cases in April 2004. The Integrated 

Solutions Tariffs was approved by Order entered on April 22, 2004. The Wireless Answers Tariff

and the Combined Bill Rewards Tariff were approved by final order entered on April 28, 2004. On

the basis of the TRA’s decision concerning resale obligations in the Safe and Sound case, the

Consumer Advocate appeals from these final orders in the BellSouth cases. In its brief, the

Consumer Advocate raises the following issues:

I. Whether the TRA erred in holding that bundled

telecommunications services do not have to be offered for resale at

wholesale prices under federal law.

II. Whether the TRA abused its discretion or acted arbitrarily or

capriciously:

A. when the agency abandoned without explanation

the process it had established to address the threshold

legal issue of whether bundled telecommunications

services must be offered for resale at wholesale prices;

B. when the agency made inconsistent decisions

regarding the issue of whether bundled
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telecommunications services must be offered for

resale at wholesale prices;

C. when the agency entered a final order approving

one tariff without ever directly addressing the

threshold resale question that the agency itself deemed

to be the central issue in the case; and

D. when the agency entered final orders allowing two

tariffs to take effect based on the TRA’s finding that

the Consumer Advocate had not presented a

justiciable issue.

III. Whether the TRA erred in approving or allowing tariffs to take

effect without making the findings required under federal law to

overcome the presumption that bundled telecommunications services

must be offered for resale at wholesale prices.

By letter filed August 3, 2005, BellSouth notified this Court of the legislature’s amendment

of Title 65 of the Tennessee Code, to wit:

On May 28, 2005, Governor Phil Bredesen signed into law

2005 Tenn. Pub. Acts 270, which amended Title 65 of the Tennessee

Code by removing retail offerings of combinations or bundles of

products or services from the jurisdiction of the Tennessee Regulatory

Authority (the “TRA”). The legislation provides, in pertinent part, as

follows:

The TRA shall retain regulatory jurisdiction

established in this title for specific, individual

telecommunications services. Except as provided in

this section, the TRA shall not assert regulatory

jurisdiction over the retail offering of combinations or

bundles of products or services, whether or not such

combinations or bundles of products or services are

subject to a tariff or other regulatory filing with the

TRA as of the effective date of this act and whether or

not comprised of products or services provided by a

local exchange carrier alone or with another company.

Thus, subsequent to May 28, 2005 [the effective date of the

amendment], combinations of products or services, such as the
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combinations at issue in these consolidated appeals are no longer

subject to the regulatory jurisdiction of the TRA.

The parties to this appeal briefed the issue of mootness in the

context of promotions that expire according to their terms during the

pendency of an appeal in Office of the Attorney General, Consumer

Advocate and Protection Division v. The Tennessee Regulatory

Authority, Case No. M2003-01363-COA-T12-CV. Because the

promotions at issue in these consolidated appeals have expired

according to the terms and any new promotions will not be subject to

the regulatory jurisdiction of the TRA, BellSouth submits these postjudgment facts in support of its argument that the consolidated

appeals should be dismissed as moot.

(Footnote omitted).

By letter of August 8, 2005, the Consumer Advocate filed its response with this Court, to wit:

...Petitioner respectfully submits its response to Respondent

BellSouth Telecommunications Inc.’s letter of August 3, 2005,

regarding passage of 2005 Tenn. Pub. Acts 270....

Section 4 of Chapter No. 270 states in pertinent part:

(a)(1)...Except as provided in this section, the

TRA shall not assert regulatory jurisdiction over the

retail offering of combinations or bundles of products

or services, whether or not such combinations or

bundles of products or services are subject to a tariff

or other regulatory filing with the TRA as of the

effective date of this act....

* * *

(c) Nothing in this section shall affect, alter or

be construed to affect or alter the applicability of state

or federal antitrust law or federal telecommunications

law or the TRA’s authority under federal

telecommunications law.

* * *
 The TRA and BellSouth filed their respective supplemental briefs on December 1, 2005. The Consumer

6

Advocate filed its supplemental brief on December 16, 2005.

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(e) Nothing in this section shall alter or expand

the TRA’s jurisdiction to hear complaints alleging

price discrimination as prohibited by Tennessee law

or anti-competitive practices regarding the provision

of retail telecommunications services within its

jurisdiction as its jurisdiction existed immediately

prior to the effective date of this act, except to the

extent that such jurisdiction is reduced pursuant to

exemption by the TRA subsequent to the effective

date of this act.

Thus, subsequent to [the] passage of Chapter No. 270,

combinations of products or services, such as the combinations at

issue in these consolidated appeals, remain subject to the regulatory

jurisdiction of the Tennessee Regulatory Authority for the issues

presented for review in these cases.

Following oral argument in this appeal, it became apparent that mootness (based upon the

new legislation and the alleged expiration of the tariffs at issue) would be a threshold issue in this

appeal. Consequently, by Order of November 16, 2005, this Court ordered the parties to file

supplemental briefs and reply briefs “regarding the effect of the new legislation and the issue of

mootness in these appeal. The Appellees should include any authority concerning the action of the

FCC that involve the issues in this litigation.”6

On December 16, 2005, the Consumer Advocate filed a “Motion to Consider Facts Relating

to the Issue of Mootness,” along with a Memorandum of Law, and other documentation in support

thereof. In its Motion, the Consumer Advocate contends that two of tariffs at issue in this appeal

(Wireless Answers, and Combined Bill Reward) have not expired or gone out of effect (as argued

by BellSouth and the TRA). Rather, the Consumer Advocate argues that, since BellSouth has filed

several “versions” of these tariffs with the TRA, which filings allegedly functioned to extend the

expiration dates of the Wireless Answers Tariff to April 16, 2004 and of the Combined Bill Reward

Tariff to December 31, 2005, the tariffs are still in effect and, consequently, the appeal cannot be

deemed moot. The Consumer Advocate asked thisCourt to consider the filing ofthe new “versions”

of the tariffs as amendments or revisions of the original tariffs, as opposed to new tariffs in and of

themselves.

BellSouth and the TRA filed their responses on December 27, 2005 and argued that the

subsequent filings were new tariffs, as opposed to amendments or revisions of the tariffs at issue in

the appeal. Because the Consumer Advocate could allegedly have objected to the filing of these

independent tariffs at the time BellSouth present them to the TRA, BellSouth and the TRA took the
 The relevant portions of T.C.A. §65-37-103 (Supp. 2005) are included in the August 3, 2005 and August 8, 7

2005 letters filed with this Court, see supra. However, in the interest of clarity, we include the full text of the statute

here:

(a)(1) The Tennessee regulatory authority (TRA) shall retain regulatory jurisdiction

established in this title for specific, individual telecommunications services. Except

as provided in this section, the TRA shall not assert regulatory jurisdiction over the

retail offering of combinations or bundles of products or services, whether or not

such combinations or bundles of products or services are subject to a tariff or other

regulatory filing with the TRA as of May 28, 2005, and whether or not comprised

of products or services provided by a local exchange carrier alone or with another

company. Nothing in this section shall require any company to engage in joint

marketing with another company when it does not choose to do so.

(2) In order to transition to the changes in regulatory jurisdiction established by this

part, telecommunications carriers shall provide customers with the following notice,

as part of the terms and conditions for bundles or combinations: "This offer contains

telecommunications services that are also available separately. Should you desire

to purchase only the telecommunications services included in this offer, without

additional products or services, you may purchase those telecommunications

services individually at prices posted on [company website] or filed with the

Tennessee Regulatory Authority."

(3) The TRA shall issue a statewide public service announcement, no less than once

per year, to inform Tennesseans that telecommunications services they purchase

may be available at different prices, depending upon whether they are bought

individually or bought bundled, and to inform Tennesseans that functionally

equivalent services may be available from providers who do not offer service using

wire line technology. Scripts for these announcements shall be posted for comments

from industry and consumers or their representatives before being used and shall

not favor any one provider or technology over others.

(b) Unless otherwise agreed by the end-user, the terms and conditions established

(continued...)

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stance that this Court should not consider these facts. This Court felt that, in order to review the

disputed documents, the motion should be granted. The motion was granted by separate Order. 

After a thorough review of the supporting documentation, which consisted of Affidavits and

the actual filings with the TRA, this Court concluded that the subsequent filings were, indeed, new

tariffs and not merely amendments or revisions to the existing tariffs, which are the subject of this

appeal; see discussion infra. 

Based upon our findings concerning the Consumer Advocate’s “Motion to Consider Facts

Relating to the Issue of Mootness,” and discussed above, the specific tariffs involved in this appeal

(i.e. the Wireless Answers Tariff, the Integrated Solutions Tariff, and the Combined Bill Rewards

Tariff) have expired by their own terms and are no longer in effect. This fact, coupled with the

amendment of T.C.A. §65-37-103 (Supp. 2005), which specifically removes these types of bundled

offerings from the jurisdiction of the TRA, raises a substantial question of mootness, which we must

address at the outset. 

7
(...continued) 7

by tariffs or other filings at the TRA for combinations or bundles of products or

services shall remain effective as to end-users who have selected such combinations

or bundles prior to May 28, 2005, for the duration of a term selected by the

end-user. If no term was selected by the end-user for a combination or bundle of

products or services, or if no term limit applied to such combination or bundle, then

the terms and conditions governing that combination or bundle of products or

services, at the time the end-user subscribed, shall remain in effect until the end-user

agrees or elects otherwise or until the end-user is noticed of a change in terms by

the service provider. Terms and conditions originally established by approved

tariffs, which are changed and noticed to customers subsequent to May 28, 2005,

shall bind end-users. End-users who terminate service within thirty (30) days of

issuance of the notice of a change in such terms and conditions shall not be affected

by such changed terms and conditions for the period between issuance of the notice

and termination of service.

(c) Nothing in this section shall affect, alter or be construed to affect or alter the

applicability of state or federal antitrust law or federal telecommunications law or

the TRA's authority under federal telecommunications laws.

(d) Any provider of local exchange service shall permit any end-user of basic local

exchange telephone service to terminate that service upon request and shall take all

administrative steps necessary, including "number portability," as that term is used

in 47 U.S.C. § 153(30), of the end-user's existing telephone number, to permit such

end-user to begin receiving replacement service from another certificated provider

in a timely manner.

(e) Nothing in this section shall alter or expand the TRA's jurisdiction to hear

complaints alleging price discrimination, as prohibited by Tennessee law, or

anti-competitive practices regarding the provision of retail telecommunications

services within its jurisdiction as its jurisdiction existed immediately prior to May

28, 2005, except to the extent that such jurisdiction is reduced pursuant to

exemption by the TRA subsequent to May 28, 2005. This chapter does not confer

jurisdiction on the TRA relating to services outside its jurisdiction as of May 28,

2005. In evaluating claims of anti-competitive practices in any retail

telecommunications services market, the TRA shall apply applicable federal or state

law and shall consider all relevant factors, including, but not limited to, the

following:

(1) The geographical and economic extent of commercial demand for

functionally-equivalent services;

(2) The number and relative longevity of companies providing

functionally-equivalent services;

(3) The relative gain or loss of revenues attributable to functionally-equivalent

services and customers who purchase functionally-equivalent services;

(4) The relative increase or decrease in facilities-based investment attributable to

providing functionally-equivalent services;

(5) The degree to which marketing, pricing and business strategies are utilized to

(continued...)

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(...continued) 7

acquire or maintain revenues attributable to functionally-equivalent services and

customers who purchase functionally-equivalent services; and

(6) The relationship between pricing policies and costs of functionally-equivalent

services.

(f) Nothing in this section shall alter the TRA's jurisdiction to review price

regulation filings or conduct rate of return ratemaking analysis, as applicable, for

incumbent local exchange carrier (ILEC) telecommunications providers. Revenue

for telecommunications services provided in combinations or bundles shall be

considered regulated revenue for purposes of price regulation or rate of return rate

analysis.

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In Office of the Attorney General, Consumer Advocate and Protection Division v.

Tennessee Regulatory Authority, No. M2003-01363-COA-R12-CV, 2005 WL 3193684 (Tenn. Ct.

App. Nov. 29. 2005), this Court discussed the law of mootness in the context of these types of cases,

to wit:

The requirements for litigation to continue are essentially the

same as the requirements for litigation to begin. Charter Lakeside

Behavioral Health Sys. v. Tennessee Health Facilities Comm'n, No.

M1998-00985-COA-R3-CV, 2001 WL 72342, at *5 (Tenn.Ct.App.

Jan. 30, 2001) (No Tenn. R.App. P. 11 application filed). A case must

remain justiciable throughout the entire course of the litigation,

including any appeal. State v. Ely, 48 S.W.3d 710, 716 n. 3

(Tenn.2001); Cashion v. Robertson, 955 S.W.2d 60, 62-63

(Tenn.Ct.App.1997). A case is not justiciable if it does not involve a

genuine, existing controversy requiring the adjudication of presently

existing rights. State v. Brown & Williamson Tobacco Corp., 18

S.W.3d 186, 193 (Tenn.2000); Ford Consumer Fin. Co. v. Clay, 984

S.W.2d 615, 616 (Tenn.Ct.App.1998).

A moot case is one that has lost its justiciability because it no

longer involves a present, ongoing controversy. McCanless v. Klein,

182 Tenn. 631, 637, 188 S.W.2d 745, 747 (1945); County of Shelby

v. McWherter, 936 S.W.2d 923, 931 (Tenn.Ct.App.1996). A case will

be considered moot if it no longer serves as a means to provide some

sort of judicial relief to the prevailing party. Knott v. Stewart County,

185 Tenn. 623, 626, 207 S.W.2d 337, 338-39 (1948); Ford

Consumer Fin. Co. v. Clay, 984 S.W.2d at 616. Determining whether

a case is moot is a question of law. Charter Lakeside Behavioral

Health Sys. v. Tennessee Health Facilities Comm'n, 2001 WL

72342, at *5; Orlando Residence, Ltd. v. Nashville Lodging Co., No.
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M1999-00943-COA-R3-CV, 1999 WL 1040544, at *3 (Tenn.Ct.App.

Nov. 17, 1999) (No Tenn. R.App. P. 11 application filed).

When a case is determined to be moot and when it does not fit

into one of the exceptions to the mootness doctrine, an appellate court

should ordinarily vacate the judgment below and remand the case to

the trial court with directions that it be dismissed. Ford Consumer

Fin. Co. v. Clay, 984 S.W.2d at 617; McIntyre v.. Traughber, 884

S.W.2d 134, 138 (Tenn.Ct.App.1994). However, if the case falls into

one of the recognized exceptions to the mootness doctrine, the

appellate court has the discretion to reach the merits of the appeal in

spite of the fact that the case has become moot. Alliance for Native

Am. Indian Rights in Tenn., Inc. v. Nicely, No.

M2002-02555-COA-R3-CV, 2005 WL 1111192, at *3 (Tenn.Ct.App.

May 10, 2005) perm. app. denied (Tenn. Oct. 17, 2005).

The courts have recognized several exceptions to the

mootness doctrine. The three most common exceptions include:

issues of great public importance, issues affecting the administration

of justice, and issues capable of repetition yet evading review. The

courts invoke the “capable of repetition yet evading review”

exception only where (1) there is a reasonable expectation that the

official act that provoked the litigation will occur again, (2) there is

a risk that effective judicial remedies cannot be provided in the event

that the official act reoccurs, and (3) the same complaining party will

be prejudiced by the official act when it reoccurs. A mere theoretical

possibility that an act might reoccur is not sufficient to invoke the

exception. Rather, there must be a reasonable expectation or a

demonstrated probability that the same controversy will recur

involving the same complaining party. Alliance for Native Am.

Indian Rights in Tenn., Inc. v. Nicely, 2005 WL 1111192, at *4

(citing Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1184

(1982)).

(Footnotes omitted).

In its supplemental brief, the Consumer Advocate first argues that these consolidated appeals

are not moot because the tariffs involved therein are still in effect. The Consumer Advocate’s

argument is based upon the additional filings made with the TRA, as discussed supra, which it

contends were merely extensions, revisions, or amendments to the existing tariffs. As discussed

above, we disagree. Having reviewed these supplemental filings, we conclude that the filings

constitute new, distinct tariffs. Although the offerings in the subsequent filings are identical to the

original tariffs at the heart of this appeal, all subsequent filings specifically indicate that that filing
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“cancels” the one immediately preceding it. Also, in discussing these subsequent filings in his

Affidavit (filed in support of the Consumer Advocate’s position), Robert T. Buckner, a Regulatory

Analyst with the Consumer Advocate, does not state that BellSouth “extended,” “revised,’ or

“amended” its existing tariffs. Rather, he refers to these subsequent filings as instances in which

“BellSouth filed a tariff” (emphasis added). Although the effect of the filing of these new tariffs was

to extend the effective date of the existing tariffs, from the evidence before us, we conclude that the

supplemental filings are new tariffs. Accordingly, we find that the tariffs at issue in this appeal

expired by their own terms during the pendency of this appeal.

The Consumer Advocate argues that, even if this Court were to find that the tariffs have

expired by their own terms, the appeals are not moot because they meet at least two of the exceptions

to the mootness doctrine. We will address each of the Consumer Advocate’s contentions in turn.

 The Consumer Advocate first asserts that the consolidated appeals present a justiciable issue

that is likely to repeat yet evade review. While Tennessee courts recognize the “capable of repetition

yet evading review” exception to the mootness doctrine, State ex rel. McCormick v. Burson, 894

S.W.2d 739, 742 (Tenn. Ct. App.1994), as discussed by this Court, in Alliance for Native American

Indian Rights in Tennessee, Inc. v. Nicely, No. M2002-02555-COA-R3-CV, 2005 WL 1111192

(Tenn. Ct. App. May 10, 2005), perm. app. denied (Tenn. Oct. 17, 2005), courts will invoke the

“capable of repetition yet evading review” exception to the mootness doctrine only in exceptional

cases, to wit:

 Parties requesting a court to invoke the exception must demonstrate

(1) a reasonable expectation that the official acts that provoked the

litigation will occur again, (2) a risk that effective judicial remedies

cannot be provided in the event that the official acts reoccur, and (3)

that the same complaining party will be prejudiced by the official act

when it reoccurs. A mere theoretical possibility that an act might

reoccur is not sufficient to invoke the “capable of repetition yet

evading review” exception. Rather, “there must be a ‘reasonable

expectation’ or a ‘demonstrated probability’ that the same

controversy will recur involving the same complaining party.”

Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 1184, 71

L.Ed.2d 353 (1982); 1 Ronald D. Rotunda & John E. Nowak, Treatise

on Constitutional Law § 2.13, at 37 (3d ed. Supp.2005).

Id. at *4 (footnotes omitted).

At the time that the tariffs at issue in this case were brought before the TRA, the General

Assembly had not enacted T.C.A. §65-37-103 (Supp. 2005). Consequently, at that time, incumbent

telephone companies such as BellSouth were required to submit its bundled offerings to the TRA,

and the TRA had the power, upon either written complaint or its own initiative, to, among other

things, hear and determine whether such tariffs were reasonable. With the enactment of T.C.A.
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§65-37-103 (Supp. 2005), which became effective May 28, 2005, the General Assembly removed

bundled offerings (such as the ones at issue in the instant appeal) from the jurisdiction of the TRA.

Consequently, since May 28, 2005, incumbent telephone companies no longer must present these

bundled offerings to the TRA. Currently, the TRA may review these bundled offerings only in

response to a properly filed complaint alleging price discrimination, as prohibited by Tennessee law,

or anti-competitive practices regarding the provision of retail telecommunications services. See

T.C.A. §65-37-103(e) (Supp. 2005). In light of the new legislation, the actions of the TRA, to which

the Consumer Advocate takes issue in this appeal, are not capable of repetition, since these types of

bundled offerings will no longer be presented to the TRA. Because the TRA no longer has

regulatory jurisdiction to require tariffing of bundles or combinations of products or services, the

question remains whether the Consumer Advocate has any other administrative or judicial remedies

in which it may pursue the question of whether and to what extent the federal resale requirements

apply to such bundles or combinations. 

Because the Tennessee General Assembly has, by the enactment of T.C.A. §65-37-103

(Supp. 2005), removed these types of bundled offerings from the jurisdiction of the TRA, any

recourse the Consumer Advocate may have must be found in the federal arena. However, under the

Act, such recourse does exist. 47 U.S.C. §207 (2004) provides that:

Any person claiming to be damaged by any common carrier subject

to the provisions of this chapter may either make complaint to the

Commission 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; but such person shall not

have the right to pursue both such remedies.

Furthermore, 47 U.S.C. §208 provides, in relevant part, that:

(a) Any person, any body politic, or municipal organization, or State

commission, complaining of anything done or omitted to be done by

any common carrier subject to this chapter, in contravention of the

provisions thereof, may apply to said Commission by petition which

shall briefly state the facts, whereupon a statement of the complaint

thus made shall be forwarded by the Commission to such common

carrier, who shall be called upon to satisfy the complaint or to answer

the same in writing within a reasonable time to be specified by the

Commission. If such common carrier within the time specified shall

make reparation for the injury alleged to have been caused, the

common carrier shall be relieved of liability to the complainant only

for the particular violation of law thus complained of. If such carrier

or carriers shall not satisfy the complaint within the time specified or

there shall appear to be any reasonable ground for investigating said
-17-

complaint, it shall be the duty of the Commission to investigate the

matters complained of in such manner and by such means as it shall

deem proper. No complaint shall at any time be dismissed because of

the absence of direct damage to the complainant.

Clearly, under the Act, the Consumer Advocate has an avenue for review of the resale obligations

of incumbent telephone carriers on these bundled products. Consequently, and in light of the fact

that T.C.A. §65-37-103 precludes the possibility that the resale question on bundled tariffs will be

brought before the TRA, we conclude that the consolidated cases before us do not fall under the

“capable of repetition yet evading review” exception to the mootness doctrine.

The Consumer Advocate next asserts that the appeals before us are not moot because they

involve “a matter of public interest and concern.” The applicability of the public interest exception

to themootness doctrine was discussed by this Court in Dockery v. Dockery, 559 S.W.2d 952 (Tenn.

Ct. App. 1977), to wit:

“The decision as to whether to retain a moot case in order to

pass on a question of public interest lies in the discretion of the court

and generally a court will determine a moot question of public

importance if it feels that the value of its determination as a precedent

is sufficient to overcome the rule against considering moot

questions.” 5 Am.Jur.2d, Appeal and Error, s 768, pp. 210-211.

 Because the general rule is to dismiss an appeal which has

become moot, with the retention of such cases in the public interest

being the exception to the rule, courts are inclined to refuse dismissal

only under exceptional circumstances where the public interest clearly

appears.

“It is not easy to state any hard and fast rules by which

questions which are of sufficient public interest to justify refusal to

dismiss an appeal which has become moot . . . may be distinguished

from questions which are not of such interest, since the matter rests

generally in the discretion of the appellate court in each particular

case.”132 A.L.R. 1188-1189. However, the starting point is to

determine the meaning of “public interest.” Generally, public interest

“means something more than that the individual members of the

public are interested in the decision of the appeal from motives of

curiosity or because it may bear upon their individual rights or serve

as a guide for their future conduct as individuals.”132 A.L.R. 1189.

The types of issues the courts are likely to resolve despite their

mootness are:

(1) questions that are likely to arise frequently;
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(2) questions involving the validity or construction of statutes;

(3) questions relating to elections;

(4) questions relating to taxation, revenue, or governmental financial

affairs;

(5) questions relating to the conduct of public officers or bodies;

(6) questions involving the governmental regulation of public

utilities; and

(7) questions which must necessarily become moot before the appeal

can be heard.

See the Annotation at 132 A.L.R. 1185-1190 for cases from different

jurisdictions supporting each category.

In this State a mooted issue is within the public interest if “it

is one of great public importance, as where it involves a

determination of public rights or interests under conditions which

may be repeated at any time.”McCanless v. Klein, supra 188 S.W.2d

at 747. 

Id. at 954-55.

Here, the Consumer Advocate asserts that the appeals fall within the public interest exception

because they involve three of the Dockery exception examples. Specifically, the Consumer

Advocate contends that the issues involve the “governmental regulation of public utilities,” the

“validity or construction of statutes,” and issues that are “likely to arise frequently”. We have

previously addressed the question of whether the issues raised in this appeal are likely to arise

frequently and have determined that, with the enactment of T.C.A. § 65-37-103, the TRA will no

longer have jurisdiction over these bundled offerings or the question of the resale obligations arising

therefrom. The Consumer Advocate’s argument that these appeals contain matters of public interest

because they involve the “validity or construction of statutes” is likewise tenuous. This case

involves no issue of statutory construction. T.C.A. § 65-37-103 is clear on its face. The statute

unambiguously states that the TRA “shall not assert regulatory jurisdiction over the retail offering

of combinations or bundles of products or services....” However, even if we concede that the issues

before us involve the construction and application of federal statutes and/or rules and orders of the

FCC, the issue would be whether, or to what extent, those federal statutes, rules, and orders apply

to bundled offerings such as those giving rise to this appeal. Following the enactment of T.C.A. §

65-37-103, these issues are no longer within the state’s jurisdiction but, as discussed above, would

be properly raised in the federal system. The Consumer Advocate further asserts that these appeals

are not moot because they involve questions concerning the government regulation of public utilities.

Although we concede that this case does involve governmental regulation of public utilities, that

fact, in and of itself, is not sufficient to invoke the public interest exception to the mootness doctrine.

Under the law, as it existed at the time of the introduction of these tariffs to the TRA, the TRA had

jurisdiction to determine whether, and to what extent, BellSouth was obligated to offer the

telecommunications services contained in the offerings for resale. Before the enactment of T.C.A.
-19-

§ 65-37-103, the TRA exercised its jurisdiction in determining that the three tariffs at issue here, and

other similar tariffs, could be offered without resale. However, with the enactment of the new

legislation, telecommunications providers have no ongoing obligation to submit tariffs or other

regulatory filings with the TRA concerning bundled products or offerings. Consequently, with the

expiration of the offerings, comes the elimination of any possibility that the circumstances

underlying these appeals will be repeated in future matters before the TRA. Thus, any ruling based

on the facts of the consolidated appeals would be merely theoretical in nature and would have no

bearing whatsoever on new questions or disputes concerning bundled offerings and the TRA’s role

in regulating same because the TRA’s role has been legislatively removed in these types of cases.

It is well settled that courts will decline to provide judicial relief in cases that do not involve genuine

existing controversies requiring the adjudication of present rights, State ex rel. Lewis v. State, 208

Tenn. 534, 537, 347 S.W.2d 47, 48 (1961); Ford Consumer Fin. Co. v. Clay, 984 S.W.2d 615, 616

(Tenn. Ct. App.1998), and will likewise decline to render declaratory judgments to decide theoretical

questions or render advisory opinions. State v. Brown & Williamson Tobacco Corp., 18 S.W.3d

186, 193 (Tenn.2000). 

 In light of the new legislation and the expiration of the tariffs involved, and for the foregoing

reasons, we find that these consolidated appeals are moot. Consequently, we dismiss the appeals.

Costs of these appeals are assessed against the Appellant, The Consumer Advocate Division of the

Office of the Attorney General, and its surety.

__________________________________________

W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.