Communications Act of 1934, as amended by the Telecommunications Act of 1996, codified at 47 U.S.C. § 151 et seq. (collectively, the Act). AT&T also requested that the ALJ suspend the instant proceeding while the Motion to Dismiss was pending. By letter dated December 9, 2009, Core responded, stating that it objected to any suspension of further testimony while the Motion to Dismiss was pending as well as to the Motion itself. On December 28, 2009, Core filed its Answer to AT&T’s Motion to Dismiss. Core stated that the FCC has never preempted the Commission’s authority to address issues relating to intercarrier compensation between two competitive local exchange companies (CLECs). Core contended that the ISP Remand Order applied only to intercarrier compensation between an incumbent local exchange company (ILEC) and a CLEC. In this case, the exchange of traffic is between two CLECs; thus, Core is of the opinion that the ISP Remand Order is not applicable. Core also contended that, even if the ISP Remand Order applied, the Commission still would have jurisdiction because the Telecommunications Act of 1996 (TA-96) contemplated shared state and federal authority over all aspects of competition. Core also argued that AT&T Communications v. Pac-West Telecomm, Inc., 2008 U.S. Dist. LEXIS 61740 (N.D. Cal Aug. 12, 2008) (Pac-West District Court Decision) was directly on point with the issues in this proceeding and makes clear that state commissions have not been preempted from applying intrastate tariff rates to ISP-bound traffic exchanged between two CLECs. By Order dated February 26, 2010 (Order No. 6), the ALJ granted the Motion to Dismiss regarding the traffic prior to September 2009 and denied the Motion to Dismiss regarding traffic after September 2009. On March 5, 2010, both Core and AT&T filed separate Petitions for Interlocutory Review and Answer to Material Questions with respect to Order No. 6. On
Exceptions to the Initial Decision were filed by Core and AT&T on June 13, 2011, and Replies to Exceptions were filed by Core and AT&T on June 23, 2011. In addition, on July 7, 2011, Core filed a Motion for Leave to File Update to Core’s Reply to the Exceptions of AT&T to which AT&T filed an Answer in opposition on July 15, 2011. On July 15, 2011, we granted the Motion and indicated that we also would consider AT&T’s responsive argument to Core’s updated Replies to Exceptions. On June 21, 2011, two days before the deadline for filing Reply Exceptions, the Ninth Circuit issued its decision in the Pac-West proceeding. AT&T Communications of California v. Pac-West Telecomm, 651 F.3d 980 (9th Cir. 2011) (PacWest). The Ninth Circuit reversed the Pac-West District Court Decision, and held that the FCC’s ISP Remand Order applied to all LEC-originated ISP-bound traffic, including CLEC-to-CLEC traffic. The Ninth Circuit preempted the California Public Utility Commission’s decision that relied upon state-filed tariffs to set rates for ISP-bound traffic, and instead deferred to the FCC’s compensation regime established by the ISP Remand Order. Our December 2012 Order sustained Core’s Formal Complaint against AT&T, in part. More specifically, we determined that the FCC had not preempted state regulation of local ISP-bound CLEC-to-CLEC traffic in a manner that is consistent with the FCC’s intercarrier compensation regime. December 2012 Order at 24. We further concluded that, in light of the Ninth Circuit’s decision in Pac-West, the FCC had preempted the States from establishing rates for ISP-bound local CLEC-CLEC traffic that are inconsistent with the FCC’s ISP Remand Order. Id. at 49, 79-80. Accordingly, we held that Core was entitled to compensation from AT&T at the FCC’s capped rate of $0.0007 per minute of use (MOU) for traffic terminated by Core on or after May 19, 2005. Id. at 81-82. dialed
federal law, either because it is impossible to comply with both or because the state law stands as an obstacle to the accomplishment and execution of Congressional objectives. International Paper v. Ouellette, 479 U.S. 481 (1987). None of these three scenarios are present in the instant case. There is no express statutory language in the federal Act that governs the assessment of interest. Second, because telecommunications regulation is shared between the FCC and the States in a dual regulatory system, Congress clearly has not “occupied the field” of telecommunications regulation. Ting v. AT&T, 319 F.3d 1126, 1136-37 (9th Cir. 2003); Northwest Central Pipeline Corp. v. State Corporation Commission of Kansas, 489 U.S. 493 (1989) (Northwest Central Pipeline) (under Natural Gas Act’s system of dual federal and state regulation, a finding that Congress has occupied the field would be an extravagant interpretation of federal power and would undermine the dual regulatory field established by Congress.). Finally, AT&T has cited to no specific federal law or regulation that conflicts with an award of interest to Core, or explained how interest on an overdue bill for utility service would frustrate the objectives of Congress. In the telecommunications arena, the U.S. Supreme Court has held that the FCC is barred from preempting state regulation over depreciation of dual jurisdiction property for intrastate ratemaking purposes. The Court relied on the express jurisdictional limitations on the powers of the FCC contained in Section 152(b) of the Communications Act of 1934, 47 U.S.C. § 152(b). Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355 (1986) (Louisiana PSC). Section 152(b) provides, in part, that “[Nothing] in this Act shall be construed to apply or to give the [FCC] jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication service by wire or radio of any carrier . . .” The Court observed that this statutory provision “fences off from FCC reach or regulation intrastate matters – indeed, including matters ‘in connection’ with intrastate service.” Louisiana PSC at 370. The Court stated that the language fencing off intrastate matters from the reach of the FCC in this dual regulatory
proceeding, and that it was within our authority to utilize the four-year statute of limitation set forth at Section 1312 of the Code. As discussed above, Section 1312 establishes a four-year statute of limitations applicable to refunds paid by utilities, and it has been our established practice, as matter within our discretion, to apply the four-year statute of limitations to the amounts owed to utilities by customers, as follows: Section 1312 of the Public Utility Code permits ratepayers to seek rate refunds when certain findings are made, up to a four-year past period measured from the date that the improper billing was discovered. Parity and equity warrant that a utility should likewise be limited to a four-year past period for recoupment of underbillings. Also, while expressly applying to residential customers, an analogy can be drawn from the four-year limitations contained in the Commission’s regulations at Section 56.35 and 56.83(7). We can find no distinguishing factor which would suggest that a different time limitation for commercial customers should be applied. Angie’s Bar at 12. The Commission has followed the precedent established by Angie’s Bar in a series of cases dating from 1990. See e.g., Petition of PECO Energy Company for Approval of its Revised Electric Purchase of Receivables Program, Docket No. P2009-2143607 (Order entered August 24, 2010); Encarnacion v. PPL Electric Utilities Corp., Docket No. C-20078087 (Order entered September 29, 2008); Berry v. PGW, Docket No. F01184412 (Order entered April 15, 2004). Thus, while Section 1312 does not mandate a four-year limitation on the collection by utilities of unpaid amounts due for service, the Commission has exercised its discretion and applied the four year-statute of limitations under Section 1312 to these situations since at least 1990. The instant Complaint was filed by Core under its state Switched Access Tariff, which we determined is not applicable to the traffic at issue. December 2012 Order at 61. Instead, we resolved Core’s Complaint by applying the FCC’s capped rate of $0.0007 established by the FCC’s ISP Remand Order to the traffic at issue. Id. at 80.