Harrisonville Telephone v. Illinois Commerce

472 F.Supp.2d 1071

HARRISONVILLE TELEPHONE COMPANY, Marseilles Telephone Company, and Metamora Telephone Company, Plaintiffs, v. ILLINOIS COMMERCE COMMISSION, Charles E. Box, Chairman, Erin M. O'Connell Diaz, Commissioner, Lula M. Ford, Commissioner, Robert F. Lieberman, Commissioner, and Kevin K. Wright, Commissioner, in their official capacities as Commissioners of the Illinois Commerce Commission and not as individuals, and Sprint Communications, LP, agent of Sprint Communications Company, LP, Defendants.

No. CIV. 06-73-GPM.

United States District Court, S.D. Illinois.

December 13, 2006.

COPYRIGHT MATERIAL OMITTED

Donald E. Weihl, Greensfelder, Hemker et al., Belleville, IL, Jason L. Ross, Kirsten M. Ahmad, Greensfelder, Hemker et al., St. Louis, MO, Troy A. Fodor, Law Offices of Troy A. Fodor, Springfield, IL, for Plaintiffs.

Thomas R. Stanton, John P. Kelliher, Illinois Commerce Commission, Chicago, IL, Kirsten J. Daru, Michele Floyd, Raymond A. Cardozo, Reed Smith, San Francisco, CA, Haran C. Rashes, Roderick S. Coy, Clark Hill PLC, Lansing, MI, for Defendants.

MEMORANDUM AND ORDER

MURPHY, Chief Judge.

This matter is before the Court on the Emergency Motion (1) for a Protective Order, or in the Alternative (2) for Reconsideration of Prior Discovery Order, or in the Further Alternative (3) for Certification for Interlocutory Appeal under 28 U.S.C. § 1292(b) Ruling or a Telephonic Hearing Requested by November 14, 2006, brought by Defendant Sprint Communications, LP ("Sprint") (Doc. 71). For the following reasons the motion is GRANTED in part and DENIED in part.

This is an action pursuant to section 252(e)(6) of the Telecommunications Act of 1996, 47 U.S.C. § 251 et seq., ("Telecommunications Act") in which Plaintiffs Harrisonville Telephone Company, Marseilles Telephone Company, and Metamora Telephone Company, who are Illinois-based rural local exchange carriers ("RLECs"), seek judicial review of decisions by Defendant Illinois Commerce Commission ("ICC") pertaining to interconnection agreements between the RLECs and Sprint for the provision of local telephone service. See 47 U.S.C. § 251(a)(1), (c)(1). By Order entered October 24, 2006, the Court directed Sprint to provide to the RLECs an unredacted copy of a contract between Sprint and Mediacom, a cable company that wishes to provide local telephone services in the RLECs' service areas, and to produce a witness knowledgeable about the agreement within thirty days of the date of entry of the Order. Sprint now has moved for reconsideration of that ruling, contending that pricing information contained in the agreement is confidential business information that should be redacted from the agreement. In the event reconsideration is denied, Sprint requests that the Court certify the ruling for interlocutory appeal.

District courts have inherent power to reconsider interlocutory orders. See Koelling v. Livesay, No. 04-C00375-MJR, 2006 WL 3360502, at *1 (S.D.Ill. July 27, 2006) (citing A. Hollow Metal Warehouse, Inc. v. U.S. Fidelity & Guar. Co., 700 F.Supp. 410, 411-12 (N.D.Ill.1988)). Reconsideration of an interlocutory order is committed to a court's sound discretion. See Fisher v. National R.R. Passenger Corp., 152 F.R.D. 145, 149 (S.D.Ind.1993) (noting the "practically unbridled discretion of a district court to reconsider a previous interlocutory order."). The considerations that govern the reconsideration of interlocutory orders are essentially equitable. See Atchley v. Heritage Cable Vision Assocs., 926 F.Supp. 1381, 1383 (N.D.Ind.1996) ("Interlocutory judgments are ... subject to the complete power of the court rendering them to afford such relief as justice requires."); Akzo Coatings, Inc. v. Aigner Corp., 909 F.Supp. 1154, 1160 (N.D.Ind.1995) ("[A] motion to reconsider an interlocutory order may be entertained and granted as justice requires."); Acme Printing Ink Co. v. Menard, Inc., 891 F.Supp. 1289, 1295 (E.D.Wis.1995) ("In contrast to a motion to reconsider a final judgment, which must meet the requirements of Federal Rules of Civil Procedure 59 or 60, a motion to reconsider an interlocutory order may be entertained and granted as justice requires."). In general, a district court's rulings "are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure," and "ill-founded requests for reconsideration of matters previously decided ... needlessly take the court's attention from current matters and visit inequity upon opponents who, prevailing in an earlier proceeding, must nevertheless defend their position again and again." Berger v. Xerox Ret. Income Guar. Plan, 231 F.Supp.2d 804, 820 (S.D.Ill.2002).

To the extent Sprint suggests that discovery is improper in this instance because this is a case involving judicial review of agency action based on an administrative record, the Court has addressed this issue already in its Order entered October 24, 2006. Although judicial review of agency decisions is generally limited to review of the administrative record, this rule is subject to certain exceptions. Specifically, judicial review of an agency decision may expand beyond the record in the following circumstances: (1) if necessary to determine whether the agency has considered all relevant factors and has explained its decision; (2) when the agency has relied on documents not in the record; (3) when supplementing the record is necessary to explain technical terms or complex subject matter; or (4) when the plaintiff makes a showing of agency bad faith. See Southwest Ctr. for Biological Diversity v. U.S. Forest Serv., 100 F.3d 1443, 1450 (9th Cir.1996). Cf. Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973) (when the Comptroller of Currency failed to explain an administrative action denying a national bank charter and thereby frustrated effective judicial review, the remedy was to obtain from the agency, either through affidavits or testimony, such additional explanation of the reasons for the agency decision as might prove necessary); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419-20, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971) (a court reviewing an action of the Secretary of Transportation authorizing use of federal funds for the construction of an expressway through a public park could require the administrative officials who participated in the decision to give testimony explaining their action upon a showing of administrative bad faith).

Correspondingly, limited discovery may be permitted in administrative review proceedings to ensure that an agency considered all relevant factors in reaching a decision. As the court noted in Public Power Council v. Johnson, 674 F.2d 791 (9th Cir.1982), discovery "facilitate[s] expeditious review" of agency actions and ensures "full presentation of the issues" to a court reviewing such action. Id. at 795. See also Conservation Law Found. of New England, Inc. v. Clark, 590 F.Supp. 1467, 1474 (D.Mass.1984) (discovery will be permitted to determine if the administrative record submitted by the agency is "self-serving, incomplete or unclear."); Exxon Corp. v. Department of Energy, 91 F.R.D. 26, 33 (N.D.Tex.1981) ("[L]imited discovery to complete the record is ... proper where the Court determines the agency has failed to file the ... whole record."); Tenneco Oil Co. v. Department of Energy, 475 F.Supp. 299, 317 (D.Del.1979) ("Tenneco correctly asserts that it is entitled to discover any materials necessary to complete the administrative record."); Smith v. FTC, 403 F.Supp. 1000, 1008-09 (D.Del. 1975) (quoting Citizens to Preserve Overton Park, Inc., 401 U.S. at 416, 91 S.Ct. 814) (discovery permits courts to make the requisite "searching and careful" inquiry to determine whether an agency considered all relevant factors in making a decision).

The threshold for permitting limited discovery in administrative review proceedings is not high. In Public Power Council, the court suggested that such discovery should be permitted upon a showing that a party's need for discovery was not "insubstantial or frivolous." 674 F.2d at 795. See also Dopico v. Goldschmidt, 687 F.2d 644, 654 (2d Cir.1982) (permitting limited discovery in an administrative review proceeding upon "a strong suggestion that the record before the Court was not complete."). In this instance, the record before the Court indicates that no discovery was conducted in the administrative proceedings before the ICC and that at least one of the administrative orders challenged by the RLECs was issued without the benefit of either discovery or an evidentiary hearing. See Pension Benefit Guar. Corp. v. LTV Steel Corp., 119 F.R.D. 339, 342 (S.D.N.Y.1988) ("There are compelling reasons to allow limited discovery to proceed at this stage and to reserve a determination of what should constitute the record before the court.... [T]he absence of both a formal agency proceeding and formal administrative findings suggests that some limited discovery will be useful to ensure that all matters considered by the [agency] are brought before the court.").

Moreover, the essential theory of the RLECs' case appears to be that Sprint is not a "common carrier" and thus not a "telecommunications carrier" within the meaning of the Telecommunications Act because Sprint offers its services only to private business partners like Mediacom pursuant to individually-negotiated contracts. See 47 U.S.C. § 251 (setting out the duty of "telecommunications carriers" to negotiate interconnection agreements); 47 U.S.C. § 153(44) (defining "telecommunications carrier"); U.S. Telecom Ass'n v. FCC, 295 F.3d 1326, 1330-32 (D.C.Cir.2002) (citing, inter alia, Virgin Islands Tel. Corp. v. FCC, 198 F.3d 921, 922, 925-26 (D.C.Cir.1999)) (a "telecommunications carrier" must be a "common carrier" that holds itself out to serve all potential users indifferently and that allows customers to transmit information of the...