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Digital Freedom v. Commonwealth Telephone Co.

March 20, 2006

DIGITAL FREEDOM., PLAINTIFF,
v.
COMMONWEALTH TELEPHONE COMPANY, DEFENDANT.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court is Plaintiff Digital Freedom's Combined Motion For Temporary Restraining Order And Preliminary Injunction. (Doc.1) For the following reasons, the Court finds that there is no jurisdiction over this matter. Accordingly, Plaintiff's motion for a preliminary junction will be denied without prejudice.

BACKGROUND

Digital Freedom, LLC ("Digital") is an internet service provider ("ISP") providing internet service capabilities to the residents of the 570 dialing area in the Northeastern Pennsylvania area. (Doc. 2 at 2) Digital uses the telephone lines and switching equipment of the Defendant, Commonwealth Telephone Company ("CTC"), to provide access to the internet for its customers. (Id.) In November, 2005, Digital obtained from Blue Frog, Inc., a New York company, an 800 toll free number (800-279-7920) number, which uses the telephone lines and switching equipments of CTC. (Id.) Digital contracted directly with CTC up until May, 2005 when Digital switched to Dial Assurance and then to Blue Frog. (Id.) CTC blocked access to the internet for this 800 number on December 8, 2005. (Id.) Digital acquired two additional 800 toll free numbers (866-951-9105, 866-252-7200) from VIAPops, Inc. , an Iowa company. (Doc. 2 at 3) CTC blocked access to the internet for all three 800 numbers on December 14, 2005. (Id.) On December 29, 2005 Digital was informed by CTC that these three numbers will not be unblocked. (Id.)

Digital filed a Combined Motion For Temporary Restraining Order And Preliminary Injunction (Doc.1) on January 9, 2006, alleging that it is losing customers as it does not have 800 numbers to provide to its customers to access the internet. (Doc. 2 at 3) The Court conducted a hearing on the motion for a temporary restraining order ("TRO") on January 9, 2006. (Docs. 5,6) The Court granted a TRO that was to commence upon posting of a bond and remain active until the date of the preliminary injunction ("PI") hearing. (Doc. 8) The Court conducted a PI hearing on January 17, 2006, at which time, the Court asked both sides to file supplemental briefs on the issue of jurisdiction. (Doc. 13). Both parties did so and this matter is now ripe for disposition.

DISCUSSION

Digital seeks a PI requiring CTC to unblock the three 800 toll free numbers used by Digital. (Doc. 2 at 4) To obtain a PI, plaintiff must establish: (1) a reasonable likelihood of success on the merits; (2) that irreparable harm will result if the Court denies relief; (3) that even greater harm will not befall Defendant if the Court should grant relief; and (4) that granting preliminary relief will be in the public interest. Forum For Academic and Institutional Rights v. Rumsfield, 390 F.3d 219, 228 (3d Cir. 2004).

Before going to the merits of whether Digital has met its burden of establishing these four factors, the Court must address whether it has jurisdiction over this matter. For the following reasons, the Court does not have jurisdiction over this matter.

1. Jurisdiction Under 47 U.S.C.A. §§ 251-276

Digital argues that the Court has subject matter jurisdiction under 18 U.S.C. § 1331 and 47 U.S.C.A. §§ 251-276. (Doc. 2 at 4-7) Specifically, Digital directs the Court to 47 U.S.C.A. § 252(e)(6) which states:

(6) Review of State commission actions

In a case in which a State fails to act as described in paragraph (5), the proceeding by the Commission under such paragraph and any judicial review of the Commission's actions shall be the exclusive remedies for a State commission's failure to act. In any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court to determine whether the agreement or statement meets the requirements of section 251 of this title and this section. (West 2004). Digital argues that the Court has jurisdiction over this matter because the case turns on the issue of interconnection sought by Digital to the network elements of CTC and thus, it is a federal question matter. (Doc. 2 at 7) Digital concedes that the law is not clear as to the proper jurisdiction over claims under the Telecommunication Act of 1996 ("Act") for matters not related to interconnection agreements. Even so, Digital argues that the Court has jurisdiction over this matter and cites to two cases in support of its position.

The first case, MCI Worldcom, Inc. v. Pennsylvania Pub. Util. Comm'n, ruled that jurisdiction over state commission decisions under the Act lies exclusively in federal courts. 577 Pa. 294, 299 (Pa. 2004). The Supreme Court of Pennsylvania acknowledged that Congress has not been explicit as to the question of proper jurisdiction for review of other claims, aside from appeals involving state commission's approval or rejection of an interconnection agreement, under the Act. Id. at 307. Citing authority which support federal court jurisdiction, the Supreme Court of Pennsylvania concluded that federal courts have jurisdiction over state commission's determinations involving interconnection agreements which arise under Section 252(e)(6) regardless of whether they involve approval or rejection on appeal. Id. The second case, MCI Telecomm. Corp. v. Bell Atlantic-Pennsylvania, is offered for the same proposition. 271 F. 3d 491, 497 (3d Cir. 2001)(holding that "District Court had jurisdiction to review the interconnection agreement pursuant to 47 U.S.C. § 252(e)(6)").

Digital wants the Court to base jurisdiction under the Act based on these cases. CTC agrees that the Court has jurisdiction over review of interconnection agreements under the Act but points out that Digital, as an ISP, is not entitled to obtain interconnection under the Act. (Doc. 11 at 6-7) The Court agrees that Section 252(e)(6) gives federal court jurisdiction over state commission's decisions on interconnection agreements. This, however, cannot be read to give the Court jurisdiction over this case since it is not only questionable as to whether the issue is about interconnection agreements, but there is also an absence of any state commission determination on this matter. Furthermore, upon the absence of state commission action, the Federal Communication's Commission ("FCC")is to act in its place. 47 ...


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