which services the specialized common carriers have been authorized to provide.
Plaintiffs have offered the Court two easy ways of solving this problem, neither of which the Court can accept as conclusive. The first is the letter from Bernard Strassburg, Chief of the Common Carrier Bureau of the FCC, to Laurence Harris, Vice-President of MCI dated October 19, 1973 which specifies that interconnections for FX, CCSA, and interexchange were among those ordered by the FCC. Plaintiffs assert that Strassburg is authorized by the Commission's regulations to interpret the Commission's orders,
and that his interpretations are as binding as Commission orders.
We cannot accept plaintiffs' contention. The Commission's regulations only permit Strassburg authority in the administration of the tariff regulations; in other words, Strassburg is authorized to modify the Commission's procedures for the filing and consideration of tariffs, but he is not granted authority to interpret any order relating to the substance of a tariff. This becomes especially clear when Strassburg's authority under § 0.297 is compared with his authority under § 0.295, which specifically permits him to "interpret and to act upon the administration of such regulations promulgated by the Commission pursuant to section 220 of the Communications Act, relating to accounts, records and memoranda to be kept by carriers subject to the jurisdiction of the Commission." It would be incongruous to imply the power to interpret Commission's orders relating to tariffs when the power to interpret orders is spelled out in a similar section.
However, 47 CFR § 0.91 empowers the Common Carrier Bureau to "advise  and assist members of the public and the industries regulated on communications matters."
Strassburg's letter seems to fit within the framework of this subsection. Strassburg's letter was "advice" to MCI and can likewise be taken by this Court as advice, from a knowledgeable if not an authoritative source, on the question of whether the requested interconnections were comprehended by the Commission's orders.
The second piece of conclusive evidence which plaintiff seeks to offer on this question of whether the requested services are within the Commission's orders is the testimony of Kelley E. Griffith, Chief of the Domestic Rates Division of the FCC's Common Carrier Bureau. Mr. Griffith testified at the hearing on the preliminary injunction that the Commission had meant to include FX, CCSA, and interexchange in their orders in Docket No. 18920 and October 4. However, the Court cannot accept Griffith's conclusions concerning the orders because Griffith, like his superior, Strassburg, lacked authority to interpret them. Moreover, the Court feels that it cannot even take Griffith's testimony into account on an advisory basis, since Griffith's testimony was not general advice to the public but specifically designed to be introduced as expert opinion evidence in this Court. Defendant has cited several cases barring expert testimony on domestic law.
Although the Court finds these cases inopposite, because they were concerned that testimony as to domestic law would undermine the effect of the Judge's charge to the jury, the general principle enunciated by these cases -- that a Judge is as much an expert on domestic law as any possible witness -- is still valid. The testimony of an expert witness as to the FCC's laws and regulations should be rejected by a Court, not because such testimony is legally forbidden, but because reliance on it would reveal the limitation on the Court's competence and thus the need for preliminary referral of the case to the expert agency, in this case the FCC.
The elimination of the above two easy answers to the question of whether the types of interconnection MCI wants were among those the FCC ordered does not make the question of what services are included unanswerable. Although FX, CCSA, and interexchange were not mentioned by name in the comments submitted in Docket No. 18920, the manner in which the Commission discussed private line services and particular subgroups thereof leads to the conclusion that these services were included in the order in Docket No. 18920. The reasoning that leads to this conclusion is adequately discussed in the Findings of Fact, supra. Basically, the reasoning is as follows: Throughout its opinion in Docket No. 18920, the Commission rarely mentions particular kinds of interstate private line (voice) services. The Commission did mention wide area telephone service (WATS) and long-distance toll service, but only to exclude them from the scope of the decision. If FX, CCSA, and interchange were to have been excluded also, they would have been singled out as were WATS and private long-distance toll calls. But more conclusively, the Commission in their estimates of the effect of private line competition on AT&T's revenues, took into account all of AT&T's private line revenues (except for WATS and long-distance toll) and stated that even if AT&T lost all the private line market, its revenues would not shrink to the point where its ability to provide local exchange service would be jeopardized. Since the Commission was taking into account AT&T's revenues from all private line services, and since the Commission recognized the possibility that all these revenues might be diverted to AT&T's competitors, the Commission must have foreseen -- and approved -- competition in the provision of FX, CCSA, and interexchange services. And since these services were approved, the Commission's order that defendants interconnect to allow their competitors to provide private line service covers these kinds of services as well.
Defendants claim that the order in Docket No. 18920 does not embrace switched network communications, that is, calls that must go through a central switchboard on Bell's premises rather than from one private switchboard to another. To bolster this claim defendants point to a number of comments filed by MCI with the Commission in Docket No. 18920 which state that MCI does not intend to provide service that requires connection into a local exchange. Even assuming that MCI's comments did not cover the provision of FX, CCSA, or interexchange services, this would in no way limit the scope of the Commission's order in Docket No. 18920. That order states that it took into account competition with all the private line services which the Bell companies offered (except WATS and long-distance toll), and its decision was to permit competition in all private line services. MCI's authorizations subsequent to the decision in Docket No. 18920 are broad enough to permit it to provide these services.
III. The Legality of Defendants' actions under Section 202 of the Communications Act
In order to assert jurisdiction over this case, the Court would have to find that the defendants were discriminating against the plaintiffs in the provision or the terms of provision of services. The Court did so find, and asserted jurisdiction (see pp. 4-5, supra). However, this finding is not equivalent to a finding that defendants, as plaintiffs contend, violated § 202 of the Act, which prohibits a common carrier from making "any unjust or unreasonable discrimination in charges, practices, . .. or services . . . for or in connection with like communication service. . . ." This section, unlike the section vesting jurisdiction in the district courts to issue a mandatory injunction, prohibits only unjust or unreasonable discrimination. We feel that the reasonability of a difference in charge or service between customers is a question that the FCC rather is better qualified than is this Court to answer. Questions as to the justice and reasonability of discriminations, like questions as to the reasonability of tariffs, necessitate the marshalling of factual data and the weighing of factual data which is particularly within the competence of the Commission. Most of the cases which have been brought under this section have been appeals from FCC decisions enforcing the section, and these cases have stressed the discretion of the Commission in interpreting and implementing the prohibitions of the section. See, e.g. Associated Press v. FCC, 146 U.S. App. D.C. 361, 452 F.2d 1290 (1971); American Trucking Associations, Inc. v. F.C.C., 126 U.S. App. D.C. 236, 377 F.2d 121, cert. denied 386 U.S. 943, 87 S. Ct. 973, 17 L. Ed. 2d 874 (1966).
IV. Exclusivity of FCC Jurisdiction over the Types of Interconnection Requested
In its order of October 4, 1973, the Commission, besides commanding defendants to interconnect with the specialized common carriers for the purpose of FX, CCSA, and interexchange services, also informed defendants that the Commission had jurisdiction over facilities necessary for the provision of interstate private line services, at least insofar as their interstate usage was concerned, and that the state utility commissions with which AT&T had shortly before filed tariffs covering certain interconnections lacked any jurisdiction over those interconnections. The Commission based this decision in part on its earlier decision in Dial Restoration Panel, 38 FCC 2d 803 (1973), in which it was held that even if facilities were used for both interstate and intrastate communications, tariffs regarding the interstate usage should be filed with the Commission. Subsequent to its receipt of the Commission's Order, and one day before the Court's hearing on this matter, AT&T filed with the FCC tariffs similar to the ones they filed with the state commissions, under protest. This protest was later transformed into an appeal of the Commission's October 4 Order.
We agree with the Commission's interpretation of its own orders, and we find that these decisions are in line with the decisions of the Courts on the ambit of the FCC's jurisdiction. The Courts have held that transmission facilities located entirely within one state are not thereby immune from Commission regulation if those facilities are used in an interstate transmission network. United States v. Southwestern Cable Co., 392 U.S. 157, 88 S. Ct. 1994, 20 L. Ed. 2d 1001 (1968); Ward v. Northern Ohio Telephone Company, 300 F.2d 816 (6th Cir.), cert. denied, 371 U.S. 820, 83 S. Ct. 37, 9 L. Ed. 2d 61 (1962); California Interstate Telephone Co. v. F.C.C., 117 U.S. App. D.C. 255, 328 F.2d 556 (1964). It has also been held that Commission regulation of interstate communications does not end with the local switchboard, but continues to the transmission's ultimate destination. United States v. American Telephone and Telegraph Co., 57 F. Supp. 451 (S.D.N.Y. 1944), aff'd. sub nom. Hotel Astor, Inc. v. United States, 325 U.S. 837, 65 S. Ct. 1401, 89 L. Ed. 1964 (1945). And when a local transmission facility is included in an interstate transmission network, the regulation of the interstate uses of that facility lies exclusively with the FCC. Ivy Broadcasting Company v. AT&T, 391 F.2d 486 (2d Cir. 1968).
The above discussion does not mean that the tariffs filed by defendants which were approved by the Pennsylvania Utilities Commission on November 30, 1973 are invalid or without effect. It merely means that defendant Bell of Pa. may not further delay plaintiffs interconnections of the kinds requested in this suit on the grounds that tariffs governing such interconnections must be filed with the state regulatory commission, since, as explained above, the state body lacks jurisdiction over terms and conditions of such interconnections.
And now, to wit, this 31st day of December, 1973, the motion of plaintiffs in the above captioned matter for a preliminary injunction is hereby granted. Defendants The Bell Telephone Company of Pennsylvania and the American Telephone and Telegraph Company are ordered to provide to plaintiffs:
(a) Interstate "Foreign Exchange" service, comparable to AT&T's Series 2006-FX service offered under AT&T interstate Tariff 260, involving an MCI interstate circuit connected at MCI's local terminal to a business telephone arrangement supplied by defendant The Bell Telephone Company of Pennsylvania.