Opinion
CONSOLIDATED Civil Actions No. 00-10407-RCL, 00-11513-RCL, #137
August 27, 2002
Cameron F. Kerry, Mintz, Levin, Cohn, Ferris, Glovsky Popeo, P.C., Boston, MA, John C. ottenberg, Ottenberg Dunkless LLP, Boston, MA, Alan D. Mandl, Mandl Mandl LLP, Boston, MA, John R. Harrington, Darryl M. Bradford, Jenner Block, LLC, Chicago, IL, Swidler Berlin Shereff Friedman, LLP, Washington, DC, for plaintiff.
Renee S. Orleans, Theodore C. Hirt, James D. Todd, Jr., U.S. Dept. of Justice, Civil Div., Washington, DC, Nancy Rue, U.S. Atty's Office, Boston, MA, for U.S.
Daniel J. Hammond, Atty. General's Ofice, Boston, MA, for Mass. Dept. of Telecommunications and Energy, James Connelly.
MEMORANDUM ORDER ON MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Before the court is a motion of plaintiff, Global Naps Inc., for summary judgment or in the alternative for a preliminary injunction (Docket # 4) and a motion of plaintiff, MCI WorldCom Communications, for summary judgment (Docket # 25). The defendants, Verizon New England and Massachusetts Department of Telecommunication and Energy ("DTE") have filed cross motions for summary judgment (Docket #39 and #43 respectively). All of these motions were referred to Magistrate Judge Joyce London Alexander for a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B).
Judge Alexander filed her report on July 5, 2001. Findings and Recommendations (Docket #122). in it, she recommended that I grant both plaintiffs' motions for summary judgment and deny both defendants' cross motions for summary judgment. Such a ruling would have the effect of declaring that certain orders issued by the DTE in May 1999, July 2000, and August 2001 violate federal law, and that an order issued by the DTE in October 1998 does not violate federal law. Details concerning these orders are set out in Judge Alexander's very thorough report. Findings and Recommendations passim. Judge Alexander also recommended that I grant the motion for a preliminary injunction,
directing the DTE to undertake an analysis of the interconnection agreements to determine whether those agreements give rise to reciprocal compensation for ISP bound traffic and that proscribes the DTE from enforcing the 1999 DTE Order, the 2000 DTE Order, and the 2001 DTE Order until such time as that analysis is complete.
Id at 30. Both defendants have objected to the report and its recommendations.
After conducting a de novo review of the issues raised by the motion, I accept the report and recommendations in part. Thus, the motions for summary judgment of the plaintiffs, MCI WorldCom Communications and Global Naps are GRANTED to the extent that they seek a declaration under 47 U.S.C. § 252(e)(6) that the October 1998 DTE Order complied with federal law and the May 1999, July 2000, and August 2001 orders did not. In making this ruling, I expressly adopt the reasoning set forth by Judge Alexander in the Findings and Recommendations.
With respect to Judge Alexander's recommendation that I issue a preliminary injunction, I conclude that the plaintiffs have not made the requisite showing of irreparable harm. See Philip Morris Inc. v. Harshbarger, 159 F.3d 670, 673-74 (1st Cir. 1998) (setting forth the four prong test to determine if an injunction should be issued). The harm claimed must be of "a substantial injury that is not accurately measurable or adequately compensable by money damages. . . ." Id A preliminary injunction "is not warranted by a tenuous or overly speculative forecast of anticipated harm. Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 19 (1st Cir. 1996). The record here does not establish any such harm. Moreover, in light of my disposition of this matter, as set forth in the following paragraph, no injunction, as such, is necessary. Therefore, to the extent the Judge Alexander recommends that I issue a preliminary injunction, I respectfully reject the recommendation, and the motion for preliminary injunction is denied.
A district court's jurisdiction under § 252(e)(6) extends only to a determination of whether orders of a state utility commission like those at issue in this case comply with federal law. 47 U.S.C. § 252(e)(6); see generally Puerto Rico Telephone Co. v. Telecommunications Regulatory Bd Puerto Rico, 189 F.3d 1 (1st Cir. 1999). Accordingly, having made such a determination in this case, I remand these cases to the DTE for proceedings or deliberations not inconsistent with the rulings herein and with those parts of the Findings and Recommendations that explicate the reasons for granting summary judgment to the plaintiffs and denying summary judgment to the defendants.
SO ORDERED.