Before the FEDERAL COMMUNICATIONS COMMISSION Washington D.C

Before the FEDERAL COMMUNICATIONS COMMISSION Washington D.C. 20544 In the Matter of ) ) Motion of Union Electric Company d/b/a ) WC Docket No. 13-307 Ameren Missouri for Declaratory Ruling ) Concerning VoIP Service Offered Using ) Cable One s Pole Attachments ) REPLY COMMENTS OF UNION ELECTRIC COMPANY d/b/a AMEREN MISSOURI Union Electric Company d/b/a Ameren Missouri ( Ameren ), respectfully submits these Reply Comments in support of its request for a declaratory ruling. I. This is not the proper context for the Commission to decide the VoIP classification issue. To be clear, Ameren does not believe that its motion for declaratory ruling is an appropriate use of 47 C.F.R. 1.2; Ameren filed the motion because it was required to do so by a federal court. Nor does Ameren believe that the Commission should regularly decide partyspecific issues through a motion for declaratory ruling, particularly where (as here) those issues are non-dispositive in pending litigation. The majority of the comments filed in this proceeding fail to address the procedural issue that is squarely before the Commission: whether utilities should be required to seek a declaratory ruling pursuant to 47 C.F.R. 1.2 on the classification of certain communications services offered over attachments to their poles before proceeding with a breach of contract action to collect unpaid pole attachment rentals, or whether the proper means of invoking the Commission s jurisdiction is, as has been the case historically, through a pole attachment 1326107.3

complaint filed by a cable television system or provider of telecommunications services pursuant to 47 C.F.R. 1.1401, et seq. Most of the comments that do address the procedural issue seem to agree on one specific point: this is not the appropriate proceeding to decide the VoIP classification question. See American Cable Association Comments at 1 ( a generic regulatory classification is not ripe for decision in this proceeding the proper regulatory treatment of VoIP and other IP-based services is pending in, and more appropriately addressed in, a generic rulemaking ) 1 ; AT&T Comments at 1 ( Because we believe that this is an inappropriate forum for determining the classification of VoIP services and that, under existing law, the Commission need not classify Cable One s VoIP service in order to terminate a controversy and remove uncertainty with respect to the license agreement between Ameren and Cable One ) and 5 ( Because of the broad and far-reaching impacts any decision to classify VoIP service will have, we contend that it ought not be decided in the context of a contractual dispute between individual litigants. ); Electric Utilities Comments at 5 ( The Commission should make clear that the pole attachment complaint process, and not 47 C.F.R. 1.2, is the proper means of invoking the Commission s jurisdiction over a pole attachment rate dispute between two parties. ). 1 Upon information and belief, Cable One, Inc. the party in the underlying federal court proceeding which took the position that it was Ameren s responsibility to seek a declaratory ruling before proceeding with its collection action is a member of the American Cable Association ( ACA ). See List of ACA Board of Directors available at http://www.americancable.org/about_us/aca_overview/list_aca_board_directors (identifying Tom Might, President and CEO of Cable One, as an ACA board member) (last visited February 3, 2014). 1326107.3 3

II. Cable One s comments are inconsistent with its positions in the underlying federal court proceeding and embrace a peculiar position regarding the scope of pole attachment complaints. A. Despite its position in the underlying proceeding, Cable One does not request a VoIP classification from the Commission. Ameren and Cable One are before the Commission because Cable One successfully represented to the Eastern District of Missouri that classification of the VoIP issue was necessary for disposition of Ameren s contract action. Cable One also successfully represented that 47 C.F.R. 1.2 is the proper means of initiating a Commission proceeding to answer questions that might prove helpful in a pending contract dispute. Cable One s representations to the Commission in this proceeding, though, are not the same. Here, Cable One expressly asks the Commission not to decide the VoIP classification issue. See Cable One Comments at 13 ( By contrast, the Commission has expressly declined to address the statutory classification of VoIP services. Such a decision is not necessary for the Commission to reaffirm that the telecom rate for pole attachments only applies to telecommunications carriers or providers of telecommunications services. ) (emphasis added). 2 The requested relief in Cable One s comments makes no mention of the VoIP issue. Rather, it asks for a declaration that (1) there are only two applicable rates for pole attachments the telecom rate and cable rate; and (2) the telecom rate for pole attachments applies only to telecommunications carriers or providers of telecommunications services. See Comments of Cable One at 15. Even if the Commission grants both requests, the Eastern District of Missouri 2 Cable One s specific request to the Eastern District of Missouri was to defer to the FCC and its pending determination of how VoIP services should be classified, including whether VoIP services fall within the definition of telecommunications service or whether providers of such services are considered telecommunications carriers as those terms are defined in the Communications Act. See Cable One s February 22, 2011 Memorandum of Points and Authorities in Support of Cable One Inc. s Motion to Dismiss or in the Alternative for a Stay, in Deference to the Primary Jurisdiction of the FCC at 5. 1326107.3 4

will have no more guidance than it already does. Indeed, these requests seek a declaration regarding issues not in dispute. 3 B. Cable One does not believe rate disputes are proper issues for pole attachment complaints. In the underlying federal court breach of contract action, Cable One disputes the applicable pole attachment rate under the Master Facilities Licensing Agreement. In essence, Cable One contends that Ameren is charging unjust or unreasonable rates by allegedly subjecting attachments used to provide VoIP services to the telecom rate. 4 The proper vehicle for making this argument is a pole attachment complaint filed through 47 C.F.R. 1.1401 et seq. 5 Yet, Cable One claims that the situations contemplated by the pole attachment complaint procedures are not present here and therefore, a pole attachment complaint is 3 Ameren agrees that the telecom rate for pole attachments applies only to attachments used to provide telecommunications services. That is not the issue; the issue, as framed in Ameren s breach of contract action, is whether Cable One is providing telecommunications services over attachments to Ameren s poles. 4 Ameren takes exception to the notion that its right of recovery is based on the classification of VOIP telephone services. As Ameren noted in it filings in the underlying federal court proceeding and in its motion for declaratory ruling, Cable One is (or may be) offering other services that unquestionably constitute telecommunications service under the Commission s existing precedent. See Ameren s Motion for Declaratory Ruling at 5-6 ( even if VoIP service itself does not subject pole attachments to the telecom rate, the provision of other telecommunications services (including those commonly offered by cable companies within their suite of business services) over these same attachments does. ); Ameren s Reply in Support of Motion to Lift Stay (attached as Exhibit A), at 2, ( As Cable One well knows, there are numerous other services that indisputably trigger the applicability of the telecom rate. The FCC has specifically determined that numerous other services provided by cable operators are telecommunications services, including data transport, virtual private network, gigabit Ethernet services, and private line services. ) 5 The Commission itself recognized as much in its January 30, 2014 Public Notice. See DA-14-99 (Jan. 30, 2014) available at http://transition.fcc.gov/daily_releases/daily_business/2014/db0130/da-14-99a1.pdf ( Primary jurisdiction referrals in cases involving common carriers or utilities generally are appropriately filed as complaints with the Enforcement Bureau pursuant to Sections 208 or 224 of the Act. ) 1326107.3 5

unwarranted. See Cable One Comments at 7 n.31. This is an interesting position, indeed, for a cable television system to take. Respectfully, Ameren submits that Cable One s opportunism may have outpaced its perspective. Though the notion of cable television systems being procedurally barred from filing pole attachment complaints under these circumstances is intriguing to say the least, it is inconsistent with the law and Ameren cannot support it. III. VoIP services should be classified as telecommunications services subject to the telecom rate. The parties are before the Commission because the Eastern District of Missouri seeks clarity on the regulatory classification of VoIP services. As the comments here explain, there is a substantial basis for classifying VoIP services as telecommunications services. See Comptel Comments at 1 ( The service at issue in this proceeding clearly falls within the statutory definition of a telecommunications service ); Electric Utilities Comments at 3 ( Because VoIP is functionally indistinguishable from traditional telephone service, the Commission already subjects VoIP service to many of the same regulations that apply to telephone service provided by telecommunications carriers. ) The notion that Ameren s motion for declaratory ruling was filed as part of a sly litigation strategy aimed at convincing a non-expert court to apply the defunct, pre-2011 telecommunications rate, see Mediacom Comments at 2, is flawed for at least three reasons. First, it fails to acknowledge the procedural history of the underlying lawsuit; second, it fails to appreciate that, even after the Commission s 2011 Pole Attachment Order, telecommunications attachments are indeed subject to a different (and potentially higher) pole attachment rate. Third, it fails to recognize that Ameren seeks telecom rates only for attachments used to provide telecommunications services. Moreover, Ameren s suit to recover unpaid telecom pole 1326107.3 6

attachment fees is hardly as sly as filing a motion for primary jurisdiction referral and then subsequently requesting that the agency not address the referred issue. CONCLUSION Ameren reiterates the requests included in its initial Motion and respectfully seeks a declaratory ruling that: the VoIP service offered over Cable One s attachments is a telecommunications service for purposes of determining the appropriate pole attachment rental; Or, alternatively, that: Ameren is not required under Commission rules to seek a declaratory ruling on the classification of Cable One s services prior to seeking collection under contract in state or federal court; The Commission does not intend to adjudicate the classification of Cable One s specific services through a motion for declaratory ruling filed by Ameren pursuant to 47 C.F.R. 1.2; and/or The appropriate avenue for presenting the substance of the pole attachment dispute between Ameren and Cable One to the Commission is through a pole attachment complaint, filed by Cable One, pursuant to 47 C.F.R. 1.1401, et seq. Respectfully submitted, By: /s/ Eric B. Langley Eric B. Langley Joseph D. Leavens BALCH & BINGHAM LLP 1901 Sixth Ave. North Suite 1500 Birmingham, AL 35203 Phone: 205-251-8100 Fax: 205-226-8799 February 5, 2014 Attorneys for Movant Union Electric Co. d/b/a Ameren Missouri 1326107.3 7

EXHIBIT A

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 1 of 15 PageID #: 1123 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION UNION ELECTRIC COMPANY ) d/b/a Ameren Missouri, ) ) Plaintiff, ) ) Case No.: 4:11-CV-00299 v. ) ) CABLE ONE, INC., ) ) Defendant. ) PLAINTIFF S REPLY IN SUPPORT OF MOTION TO LIFT STAY

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 2 of 15 PageID #: 1124 TABLE OF CONTENTS Page I. INTRODUCTION... 1 II. ARGUMENT... 3 A. Cable One s reliance on the VoIP issue is a red herring.... 3 B. Neither the September 27, 2011 Order nor the primary jurisdiction doctrine require Ameren to seek relief from the FCC.... 4 C. Even if Ameren were required to petition the FCC it would be a wasted effort.... 6 D. This Court has jurisdiction and should lift the stay because the FCC will not take action. 7 III. CONCLUSION... 11 i

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 3 of 15 PageID #: 1125 TABLE OF AUTHORITIES Cases Page Central Telephone Co. of Virginia, 759 F.Supp.2d at 788... 6, 10 City of Stamps, Arkansas v. Alcoa, Inc., No. 05-1049, 2006 WL 2254406 (W.D. Ark. 2006)... 7 Gamble v. Pinnoak Resources, LLC, 511 F.Supp.2d 1111, 1126-127 (N.D. Ala. 2007).7,8, 10 Global Naps North Carolina, Inc. v. Bellsouth Telecommunications, Inc., 455 F.Supp.2d 447 (E.D.N.C. 2006)... 6 Lipton v. MCI Worldcom, Inc., 135 F.Supp.2d 182 (D.D.C. 2001)... 5, 11 Maryland-National Capital Park and Planning Commission v. Washington Nat. Arena, 386 A.2d 1216 (Md. Ct. App. 1978)... 5 NCTA v. Gulf Power Co., 534 U.S. 327 (2002)... 4 Rogers v. Columbia/HCA of Central Louisiana, Inc., 961 F.Supp. 960 (W.D. La. 1997)... 5 Salsgiver Telecom, Inc. v. N. Pittsburgh Tel. Co., 22 FCC Rcd 9285(2007)... 2 Swartzman, Inc. v. Atchison, Topeka & Santa Fe Ry. Co., 857 F.Supp. 838 (D.N.M. 1994)... 10 Verizon New York, Inc. v. Global NAPS, Inc., 463 F.Supp.2d 330 (E.D.N.Y. 2006)... 8, 9 Verizon Wireless (VAW) LLC v. City of Rio Rancho, NM, 476 F. Supp. 2d 1325 (D. N.M. 2007)... 10 Vonage Holdings Corp. v. FCC, 489 F.3d 1232 (D.C.Cir. 2007)... 9 Regulations 47 C.F.R. 1.1401 et seq... 3, 6 47 C.F.R. 1.2(a)... 6 47 C.F.R. Pt. 211, sec. 211.0, et seq.... 2 FCC Decisions 20 FCC Rcd 10245 (2005)... 9 21 FCC Rcd 7518 (2006)... 9 22 FCC Rcd 11275 (2007)... 9 DQE Comms. Network Svs., LLC v. N. Pittsburg Tel. Co., 22 FCC Rcd 2112 (2007)... 2 FCC Wireline Competition Bureau Docket 09-154, Petition of American Electric Power Service Corporation, et. al for a Declaratory Ruling (Aug. 17, 2009)... 7 Fiber Techs. Networks, LLC v. N. Pittsburgh Tel. Co., 22 FCC Rcd 3392 (2007)... 2 In re Amendment of Commission s Rules and Policies Governing Pole Attachments, 16 F.C.C.R. 12103, 86... 4 In re Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 FCC Rcd 14853 (2005)... 2, 3 ii

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 4 of 15 PageID #: 1126 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION UNION ELECTRIC COMPANY ) d/b/a Ameren Missouri, ) ) Plaintiff, ) ) Case No. 4:11-CV-00299 v. ) ) CABLE ONE, INC., ) ) Defendant. ) PLAINTIFF S REPLY IN SUPPORT OF MOTION TO LIFT STAY Plaintiff Union Electric Company d/b/a Ameren Missouri ( Ameren ) submits the following Reply in Support of its Motion to Lift Stay: I. INTRODUCTION This is a breach of contract lawsuit. Cable One s Opposition to Ameren s Motion to Lift Stay rests upon at least three flawed premises: That Cable One s obligation to pay the telecom pole attachment rate depends exclusively upon the regulatory classification of VOIP telephone service; That Ameren bears the burden of seeking some sort of declaratory relief from the FCC prior to seeking to enforce its rights under the Master Facilities License Agreement ( MFLA ) between the parties; and That FCC procedures provide Ameren an efficient means of resolving the issue, as unilaterally framed by Cable One. No party disputes that Cable One is obligated to pay Ameren the telecom rate for pole attachments used to provide telecommunications services. That much is certain under the MFLA 1

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 5 of 15 PageID #: 1127 and the law. In its complaint, Ameren seeks only to recover underpaid telecom rate back rents for those Cable One attachments used (by Cable One itself or a third-party fiber lessee) to provide telecommunications services. By virtue of the stay in this case, no discovery has been completed to allow Ameren to determine what portion of Cable One s system is properly subject to the telecom pole attachment rate (and during what period of time). It is both presumptuous and premature for Cable One to suggest that Ameren s entitlement to the telecom pole attachment rate rests exclusively upon the regulatory classification of Cable One s VOIP telephone service. As Cable One well knows, there are numerous other services that indisputably trigger the applicability of the telecom rate. The FCC has specifically determined that numerous other services commonly provided by cable operators are telecommunications services, including data transport, virtual private network, gigabit Ethernet services, and private line services. See Salsgiver Telecom, Inc. v. N. Pittsburgh Tel. Co., 22 FCC Rcd 9285, at 18 (2007) ( Salsvier Telecom s tariffed private line services are clearly telecommunications services ); DQE Comms. Network Svs., LLC v. N. Pittsburg Tel. Co., 22 FCC Rcd 2112, at 15-17 (2007) ( DQE CNS s tarried private line services are telecommunications services within the meaning of section 153(46) of the Act. ) ; Fiber Techs. Networks, LLC v. N. Pittsburgh Tel. Co., 22 FCC Rcd 3392, at 21-26 (2007) ( Carriers can choose to offer the transmission component (of internet service) as a telecommunications service on a stand-alone, wholesale common carrier basis ; see also 47 C.F.R. Pt. 211, sec. 211.0, et seq. (providing that restoration of private line telecommunications services would be a restoration priority in cases of national emergency or international crisis); In re Matters of Appropriate Framework for Broadband Access to the Internet over Wireline Facilities, 20 FCC 2

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 6 of 15 PageID #: 1128 Rcd 14853 9 (2005) (noting gigabit Ethernet service is a telecommunications service subject to Title II requirements). In the event Cable One believes that Ameren is seeking (or the Court is imposing) the telecom rate on pole attachments over which no telecommunications services are provided, Cable One can seek relief as cable operators often do under similar circumstances through the FCC s specific pole attachment complaint procedures. See 47 C.F.R. 1.1401 et seq. The solution Cable One urges that Ameren seek regulatory relief before pursuing its contract rights is unorthodox, to say the least. But even if the procedure Cable One urges was technically proper, it would be a huge waste of time. As Cable One itself notes in its Opposition, the FCC has been sitting for nearly four years on the very petition for declaratory ruling that Cable One argues Ameren should have joined. Even if Ameren s breach of contract lawsuit depended upon the regulatory classification of VOIP telephone service (and it does not), surely interminable delay is not what Cable One views as meeting the goals of judicial economy or the ends of justice. II. ARGUMENT A. Cable One s reliance on the VoIP issue is a red herring. In its September 27, 2011 Order the Court wrote: Despite plaintiff s representations, the Court does not believe that any of the specific services plaintiff points to on defendant s website VoIP, dedicated line business data transport, and E-rate services can be easily classified under prior FCC precedent. See ORDER September 27, 2011 at p.7. The Court also wrote, it is enough that one service addressed by plaintiff s complaint implicates the primary jurisdiction doctrine. Id. 3

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 7 of 15 PageID #: 1129 As described above, the additional services referenced in the Court s September 2011 Order have been classified by the FCC and can be easily addressed by this Court. If a pole attachment is used to provide telecommunications service whether in whole or in part it is subject to the telecommunications rate, regardless of whether another service offered over the same attachment would, standing alone, be subject to the cable rate. See In re Amendment of Commission s Rules and Policies Governing Pole Attachments, 16 F.C.C.R. 12103, 86 ( We affirm our holding in the Telecom Order that if an attachment previously used for providing solely cable services would, as a result of the leasing of dark fiber, also be used for providing telecommunications services, the rate for the attachment would be determined using the Telecom Formula. ) (May 25, 2001); see also NCTA v. Gulf Power Co., 534 U.S. 327, at 357 n.7 (2002) (Thomas, J., concurring in part) ( Rates for attachments used to provide telecommunications service are covered by 224(e) s rate methodology regardless of whether these attachments are also used to provide cable service and/or other types of service as well. ). In other words, so long as at least one of the services offered over an attachment is a telecommunications service, it does not matter whether some or all of the other services are unclassified or otherwise classified. The telecom rate still applies. Discovery of the actual services offered over Cable One s attachments, where those services are offered, and how those services are offered will resolve this dispute. B. Neither the September 27, 2011 Order nor the primary jurisdiction doctrine require Ameren to seek relief from the FCC. Cable One repeatedly argues that, pursuant to the September 27, 2011 Order, Ameren was required to petition the FCC to resolve the VoIP classification issue. As an initial matter, 4

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 8 of 15 PageID #: 1130 Ameren disagrees with Cable One s interpretation of the Court s Order. 1 But perhaps more importantly, to the extent Cable One s argument implies that this issue must be resolved by an agency before Ameren can pursue its legal rights under the MFLA, it mistakes the doctrine of primary jurisdiction for the exhaustion of remedies doctrine. The two are not the same and Ameren is not required to exhaust administrative remedies before initiating this action. See Rogers v. Columbia/HCA of Central Louisiana, Inc., 961 F.Supp. 960, 965 (W.D. La. 1997) (stating Courts and counsel have frequently confused the closely related judicial doctrines of administrative exhaustion and primary jurisdiction, and [e]xhaustion applies where a claim is cognizable in the first instance by an administrative agency alone. ); Maryland-National Capital Park and Planning Commission v. Washington Nat. Arena, 386 A.2d 1216, 1226 (Md. Ct. App. 1978) (contrasting exclusive administrative remedies under the exhaustion of remedies doctrine and the doctrine of primary jurisdiction which requires a Court to retain jurisdiction while referral takes place). The doctrine of primary jurisdiction does not require a plaintiff to seek relief before the relevant agency. And unless a defendant presents a valid failure-to-exhaust-administrativeremedies defense, the failure to pursue administrative relief cannot serve as an indefinite bar to a plaintiff s right to legal recourse. In fact, at least one court recognized that where neither party had sought relief from the FCC, it would be improper to apply the primary jurisdiction doctrine. See Lipton v. MCI Worldcom, Inc., 135 F.Supp.2d 182, 191-192 (D.D.C. 2001) ( Finally, the court must consider whether a prior application has been made to a particular agency. There is no indication that the plaintiff made a prior application to the FCC. Accordingly, the court will decline the defendants invitation to refer this matter to the FCC under the doctrine of primary 1 Specifically, Ameren does not read the word its in the final line of the Court s Order to refer to Ameren. Rather, Ameren interprets this line to refer to the FCC s pending proceeding in Docket 09-154 5

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 9 of 15 PageID #: 1131 jurisdiction. ) Furthermore, at least one court has held that where the party seeking to impose the stay has not filed a petition to resolve the issue, the exercise of primary jurisdiction is improper. See Central Telephone Co. of Virginia, 759 F.Supp.2d at 788 (declining to exercise primary jurisdiction and noting: Curiously though, none of the pending matters, which Sprint highlights as fundamental to the action at bar, were brought by Sprint itself. The fourth prong of the four-factor test outlined above contemplates that a party to the present suit made prior application to the FCC. ) (emphasis in original); Global Naps North Carolina, Inc. v. Bellsouth Telecommunications, Inc., 455 F.Supp.2d 447, 449 (E.D.N.C. 2006) (where party requested stay to allow FCC to determine status of VoIP service, court held doctrine of primary jurisdiction inapplicable because no prior application to the agency has been made by [plaintiff] or [defendant] ). C. Even if Ameren were required to petition the FCC it would be a wasted effort. Cable One repeatedly argues that Ameren is a victim of its own failure to seek relief from the FCC. See Defendant s Memorandum of Points and Authorities in Opposition to Plaintiff s Motion to Vacate Stay at p. 7. This argument glosses-over two important points. First, this is a case about unpaid pole attachment rentals. There are specific FCC complaint procedures governing pole attachments. 47 C.F.R. 1.1401 et seq. Yet, Cable One implicitly concedes (as it must) that Ameren cannot seek relief from the FCC under the pole attachment complaint procedures. Instead, Cable One argues that Ameren can petition the FCC pursuant to the generic FCC petition process under 47 C.F.R. 1.2(a) which states [t]he Commission may, in accordance with section 5(d) of the Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling terminating a controversy or removing uncertainty. 47 C.F.R. 1.2(a). 6

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 10 of 15 PageID #: 1132 Second, although the dispute in this case does not require a resolution of a VoIP issue, the solution offered by Cable One would actually do nothing to move this case along. Cable One cites FCC Wireline Competition Bureau Docket 09-154, Petition of American Electric Power Service Corporation, et. al for a Declaratory Ruling (Aug. 17, 2009) (hereafter, Docket 09-154 ) as evidence of an FCC proceeding where other public utilities utilized the generic FCC petition process to resolve the VoIP issue. Electric utilities filed this petition in August 2009, and the FCC established a pleadings cycle that same month. Since that time, the FCC has done absolutely nothing with the petition. And, as Cable One seems to concede, the FCC has no intention of taking action on the petition for all it appears. See Defendant s Memorandum of Points and Authorities in Opposition to Plaintiff s Motion to Vacate Stay at 8. ( Further, the 2009 declaratory ruling proceeding initiated by the utilities on the issue of how VoIP services should be treated for purposes of pole attachment rates remains open, although the issue presented in that proceeding has been effectively rendered moot as explained below. ) If the Court declines to lift this stay based on the expectation that the FCC will categorize VoIP telephone services, then the doctrine of primary jurisdiction will become an exercise in futility. D. This Court has jurisdiction and should lift the stay because the FCC will not take action. The federal courts have a virtually unflagging obligation to exercise the jurisdiction given them. City of Stamps, Arkansas v. Alcoa, Inc., No. 05-1049, 2006 WL 2254406, at *13 (W.D. Ark. 2006). A court may refer a matter to a regulatory agency or dismiss the case in deference to an agency s expertise under the primary jurisdiction doctrine only where a strong possibility exists that an agency decision would put an end to the dispute or at least would serve as a material aid in ultimately deciding the issues presented to the district court. Gamble v. 7

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 11 of 15 PageID #: 1133 Pinnoak Resources, LLC, 511 F.Supp.2d 1111, 1126-127 (N.D. Ala. 2007). Additionally, the court must also balance the advantages of applying the doctrine against the potential costs resulting from complications and delay in administrative proceedings. Verizon New York, Inc. v. Global NAPS, Inc., 463 F.Supp.2d 330, 340 (E.D.N.Y. 2006). There is not a strong possibility that an FCC decision will resolve this dispute because (1) a decision from the FCC is both unlikely and unnecessary, and (2) even if the FCC rendered a decision on the VOIP issue, it would not resolve the dispute. As noted above, FCC classification of Cable One s VOIP telephone service is unnecessary to resolve this case. Further, given the fact that the specific question of whether VOIP telephone service triggers the telecom pole attachment rate has been before the FCC for nearly four years now, an actual decision on the question is highly unlikely. Even assuming the FCC reached a decision, that decision would only materially aid this Court if the FCC determined that VoIP telephone service is indeed a telecommunications service. If the FCC classified VoIP telephone service as some other type of service, discovery would still be required to determine what other services are offered over Cable One s attachments and whether those attachments are subject to the telecom rate. Given the unlikelihood of FCC action, the costs resulting from complications and delay in administrative proceedings does not balance with the advantages of applying the primary jurisdiction doctrine. At least two courts have recognized that asking the FCC to decide the VoIP issue is like waiting for Godot. In Verizon New York, Inc. v. Global NAPS, Inc., 463 F.Supp.2d 330 (E.D.N.Y. 2006) two telecommunications providers disputed the rates owed for services provided on a shared telecommunications network. Just as Cable One has done here, the defendant asked the Court to exercise the doctrine of primary jurisdiction to allow the FCC to 8

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 12 of 15 PageID #: 1134 categorize VoIP services, and the Court declined. Verizon New York, Inc., 463 F.Supp.2d at 344. The Court noted that the action was actually just a breach of contract dispute and that the FCC was in no hurry to resolve issues surrounding VoIP services: Ultimately, Verizon is correct: at its essence, the dispute is a billing dispute. There is no reason to wait for Godot or the adoption of a regulatory scheme for VoIP traffic by the FCC. The determination of disputed contractual obligations is well within the conventional experience of the district court. Verizon New York, Inc., 463 F.Supp.2d at 342. This decision was issued five years before this Court ordered a stay in this action. In other words, seven years ago, a federal district court recognized that the FCC was unlikely to resolve the issue. Cable One, like the defendant in Verizon New York v. Global NAPS, would prefer to wait on the FCC even though the FCC has demonstrated that it is unwilling to definitely answer VoIP issues that arise in private contract disputes. 2 See generally Defendant s Opposition to Plaintiff s Motion to Vacate Stay and Verizon New York, Inc., 463 F.Supp.2d at 342. ( Obviously, the FCC had to be well aware of the existence of substantial VoIP traffic in the telecommunications marketplace otherwise it would not be pondering overall regulation. Equally obvious, the FCC had to be aware also that the existing VoIP traffic was moving at someone s expense. ) The Court considered the fact that the FCC had not taken action on existing proceedings and concluded that the FCC s failure to take action demonstrated the FCC s comfort with federal 2 To the extent the Court requests guidance on whether VoIP services are subject to the telecom rate, the FCC actually treats such service as a telecommunications service for numerous purposes. See, e.g., IP-Enabled Services: E911 Requirements for IP-Enabled Service Providers, First Report and Order and Notice of Proposed Rulemaking, 20 FCC Rcd 10245, 25 (2005) (requiring 911 emergency calling capabilities); Universal Service Contribution Methodology, Report and Order and Notice of Proposed Rulemaking, 21 FCC Rcd 7518, 7538-43, 38-49 (2006), aff d in part, vacated in part sub nom. Vonage Holdings Corp. v. FCC, 489 F.3d 1232, 1244 (D.C.Cir. 2007) (addressing universal service contribution obligations); Implementation of Sections 255 and 251(a)(2) of the Communications Act of 1934, as Enacted by the Telecommunications Act of 1996: Access to Telecommunications Service, Telecommunications Equipment and Customer Premises Equipment by Persons with Disabilities: Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, Report and Order, 22 FCC Rcd 11275, 11291-97 (2007) (addressing disability access obligations and Telecommunications Relay Service). 9

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 13 of 15 PageID #: 1135 courts answering these questions. See id; see also Central Telephone Co. of Virginia, 759 F.Supp.2d at 787-88 ( Notwithstanding Sprint s protestations to the contrary, the central issue in this action involves interpretation of a contract, a task well within the conventional experience of judges. ) Other courts have also recognized that referring issues to agencies in hopes of resolving disputes in pending litigation is often an unfruitful exercise. See Swartzman, Inc. v. Atchison, Topeka & Santa Fe Ry. Co., 857 F.Supp. 838, 842-843 (D.N.M. 1994) ( Administrative delay constitutes reason to retain jurisdiction. ); Gamble v. Pinnoak Resources, LLC, 511 F.Supp.2d 1111, 1127 (N.D. Ala. 2007) ( Because the MSHA s jurisdiction and willingness to pursue remedial action are dubious, this court doubts that Plaintiffs claim could be resolved before the agency. ) This Court has the expertise necessary to resolve this dispute; there is no need to wait for an FCC resolution that is never going to come. The key issue in this case is whether (and to what extent) Cable One s attachments to Ameren s poles are (or were) used to provide telecommunications services. Without discovery, there is no way to resolve this issue. It is not enough for Cable One to simply say VOIP is an unclassified service, the classification of which belongs at the FCC. Even if true, this fails to address the broader questions presented in Ameren s complaint. The mere fact that this case touches on the issue of regulatory classification of certain communications services does not mean the Court should indefinitely suspend this proceeding and wait for the FCC to act. See Verizon Wireless (VAW) LLC v. City of Rio Rancho, NM, 476 F. Supp. 2d 1325, 1340 (D. N.M. 2007) ( The primary jurisdiction doctrine does not require that all claims within an agency s purview be decided by the agency. Nor is it intended to secure expert advice for the courts from regulatory agencies every time a court is presented with an issue conceivably within the agency s 10

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 14 of 15 PageID #: 1136 ambit. ); Lipton v. MCI Worldcom, Inc., 135 F. Supp. 2d 182, 190 (D.D.C. 2001) ( Although resolving this dispute may require the court to read and understand the tariff, the defendants have not demonstrated that this will pose any insurmountable technical or intellectual hurdles. ) III. CONCLUSION Ameren respectfully requests that the Court lift the stay in this action and allow the parties to begin discovery. To the extent Cable One actually believes there is an issue that requires FCC intervention, it is free to seek relief under the FCC s pole attachment complaint procedures. The fact that Cable One has not yet done so demonstrates that it either does not believe there is an issue for FCC resolution or that it seeks only to entangle this case in a procedural black hole. Ameren respectfully requests that this Court lift the stay entered on September 27, 2011 and allow the parties to proceed on the merits. Respectfully submitted, HERZOG CREBS LLP By: /s/ Gene J. Brockland Gene J. Brockland - #32770MO James D. Maschhoff - #41821MO Brian M. Wacker - #61913MO 100 North Broadway, 14th Floor St. Louis, MO 63102 Phone: 314-231-6700 Fax: 314-231-4656 Attorneys for Plaintiff Union Electric Co. d/b/a Ameren Missouri 11

Case: 4:11-cv-00299-CEJ Doc. #: 31 Filed: 04/25/13 Page: 15 of 15 PageID #: 1137 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing was sent on the 25th day of April, 2013, electronically by ECF notification, to: Leland B. Curtis Carl J. Lumley Curtis, Heinz, Garrett & O Keefe, P.C. 130 S. Bemiston, Suite 200 Clayton, Missouri 63105 lcurtis@lawfirmemail.com clumley@lawfirmemail.com Cherie R. Kiser Angela F. Collins Cahill Gordon & Reindel LLP 1990 K Street, NW, Suite 950 Washington, CD 20006 ckiser@cgrdc.com acollins@cgrdc.com Thorn Rosenthal Megan A. Sramek Cahill Gordon & Rendel LLP 80 Pine Street New York, NY 10005 trosentahl@cahill.com msramek@cahill.com /s/ Gene J. Brockland p:\7900\7954\7954-102 - voip\pleadings\cable one\federal court\ameren's reply in support of motion to lift stay - 4-25-13.docx 12