Ninth Circuit Alphabet Soup Of Acronyms Yields Tidbits Regarding Arbitration In Regulatory Context

 

Watch Deadlines And Exhaustion Requirements And Hope That It Works Out . . .

     The next case would be even more impenetrable without the helpful glossary of 15 acronyms at the end. Some of our favorites: CMRS (Commercial Mobile Radio Service), DTMF (Dual Tone Multi-Frequency signaling), LEC (Local Exchange Carrier), ILEC (Incumbent Local Exchange Carrier), PUC (Oregon Public Utility Commission),Wink-start MF (Wink-start Multi Frequency signaling). Yes, Dear Reader, we are in the land of telecommunications regulation. Western Radio Services Co. v. Qwest Corporation, et al., No. 10-35820 (9^th Cir. March 15, 2012) (Opinion byJudge Ebel) (for publication).

     Plaintiff-Appellant Western is a CMRS (hey, we just told you what that means). Defendant-Appellee Qwest is an LEC. The case arose between two telecommunications carriers over their ICA.

     The Ninth Circuit affirmed the district court’s dismissal of Western’s claim for Qwest’s alleged failure to negotiate an ICA in good faith. Regarding a challenge to the district court’s decision affirming an order of the PUC, which order adopted results of arbitration leading to the ICA and the approval of the ICA, the Ninth Circuit affirmed in part and denied in part.

     What are the tidbits concerning arbitration?

     First, the regulatory scheme results in a complex process in which arbitration plays an important part. The carriers are required to negotiate in good faith, if they cannot agree (“Mommy, Jimmy won’t share”) they arbitrate, the arbitrator files a decision with the PUC, if the PUC adopts the arbitrator’s decision, the carrier submits an ICA to the PUC in compliance with the decision, objections can be made, and at some point, when all the steps of the administrative process are exhausted, there can be judicial review of the PUC’s decision. This is actually an incomplete summary of the complete process of review and remand that occurred here.

     The factual findings of the PUC’s decision adopting the arbitrator’s decision will be reviewed under an “arbitrary and capricious standard.”

     Administrative procedures present fiendish issues of exhaustion of remedies and narrow deadlines. The words bramble bush, maze, quicksand, and land mine spring to mind. Alas for Western, the Telecommunications Act provides “a strict window of time for the submission of a petition for arbitration: ‘the 135th to the 160^th day (inclusive) after the date on which [a carrier] receives a request for negotiation under this section. . . .’” This deadline tripped up Western on one of its issues – Qwest’s alleged failure to negotiate in good faith.

     Western submitted two petitions for arbitration. The first submission failed to properly identify Qwest’s failure to negotiate in good faith as an “open issue.” After the ICA had already been approved by the PUC, Western submitted a second petition.

     But Western could not rely on the second petition for arbitration. Why?

“[I]t was not clear whether Western sought to reopen arbitration of the already-approved ICA or whether Western sought to start over again from scratch. If the former, Western’s argument fails because the PUC’s ability to address a good faith claim ended when it approved the ICA. Any good faith claim pertaining to those negotiations and not already raised would be barred because a party’s window for raising that claim would have closed. If the latter, Western’s argument fails because Western was statutorily unable to petition the PUC for arbitration until 135 days after it had received a qualifying “request for negotiation.” The PUC’s finding that there had been no new “request for negotiation” was supported by substantial evidence in the record that Qwest had not requested another negotiation.”

     In the thicket that is the administrative process, one must watch the deadlines closely, and make certain that one has jumped through all the hoops necessary to proceed to the next step. Even so, one may discover that the district court refuses to review for “prudential” reasons.

     Blawg Trivia: David Ebel assumed senior status in 2006. His successor appointee, Neil Gorsuch, clerked for Justice Byron White – as did David Ebel! A possible first, according to Wikipedia.