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AT&T Says N.C. Can’t Force It to Include Nextel

GREENVILLE, N.C. (CN) - The North Carolina Utilities Commission lacks the authority to enforce federal merger conditions, AT&T North Carolina claims in Federal Court. It says the commission tried to force AT&T and Sprint to include Nextel in their interconnection agreement in violation of federal law.

AT&T says the Telecommunications Act of 1996 regulates agreements between carriers, allowing them to interconnect to each other's facilities and equipment.

These agreements are then submitted to a state commission for approval, but AT&T stresses that state commissions "are bound to follow federal law, including rules issued by the (Federal Communications Commission) that implement the 1996 Act."

In some circumstances, a carrier can "opt in" to an existing agreement between telecommunications carries that has already been approved by a state commission.

Nextel sought to do that with AT&T's existing agreement with various Sprint entities. AT&T opposed the opt-in request, saying its agreement with Sprint had expired two years earlier.

Nextel countered that the plaintiff had since extended the agreement. It urged the commission to grant summary judgment in its favor.

In September 2008, the commission issued an order approving Nextel's request, concluding that it had "concurrent jurisdiction with the FCC to construe and enforce" the federal merger conditions placed on AT&T as a condition of its merger with BellSouth.

The commission also allowed Nextel to join the agreement retroactively, setting an effective date of June 22, 2007, the lawsuit claims.

"The commission thus made the agreement effective at a time when Nextel was seeking to adopt an expired agreement, even though the commission never made a determination that Nextel could have adopted that date," AT&T claims (emphasis in original).

The plaintiff calls the commission's orders "arbitrary and capricious, not adequately reasoned, inconsistent with the record of evidence, and ... otherwise unlawful and pre-empted."

It seeks an injunction barring the defendants from enforcing those orders. The plaintiff is represented by M. Gray Styers Jr. with Blanchard, Miller, Lewis & Styers in Raleigh.

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