The opinion of the court was delivered by: Legge, District Judge.
ORDER: DEFENDANT'S MOTION TO
DISMISS AND PLAINTIFF'S MOTION
TO CONFIRM ARBITRATION AWARD
Plaintiff AT & T Communications of California brings this action, and
makes the present motion, to confirm an arbitration award in its favor
against defendant Pacific Bell. Plaintiff asks this court to: confirm the
award on the issue of liability, compel defendant to proceed with
arbitration of damages, and enjoin defendant from proceeding before the
California Public Utilities Commission.
Defendant moves to dismiss on two grounds. First, Pacific Bell asserts
that this court lacks subject matter jurisdiction over the action.
Second, Pacific Bell asserts that the arbitration award is not final and
cannot be confirmed by this court because it is interlocutory only.
The pending motions have been briefed, argued and submitted for
decision. The court has reviewed the moving and opposing papers, the
record of the case and the applicable authorities. For the reasons
discussed below, the court denies plaintiffs motion and grants
defendant's motion to dismiss.
Plaintiff and defendant entered into an Interconnection Agreement in
December 1996, pursuant to the Telecommunications Act of 1996,
47 U.S.C. § 252. Under that Agreement, AT & T purchased certain
services from Pacific Bell, which allowed AT & T to connect to Pacific
Bell's telecommunications network, as opposed to building its own local
network. The agreement provides for commercial arbitration of certain
AT & T alleges that Pacific Bell has been imposing "access charges"*fn1
for local calls carried over AT & T's network that originated and ended
on Pacific Bell's facilities within the area which the agreement defines
as "local" traffic. AT & T protested the access charges, arguing that the
agreement precludes Pacific Bell from imposing them.
The parties agreed to arbitration as provided in the Interconnection
Agreement, and selected the Honorable Walter P. Capaccioli as the
arbitrator. The parties agreed to bifurcate the arbitration proceedings,
whereby the arbitrator would first determine the issue of liability. Both
parties apparently "agreed that the parties would submit only the issue of
liability to Judge Capaccioli at the arbitration hearing, since the
amount of damages would likely be readily ascertainable and the parties
could likely agree thereon after a finding as to liability."
The arbitrator ruled on the liability issue, finding that plaintiff
should not have been billed for the access charges. Specifically, the
arbitrator ruled that,
Pacific shall abide by the `bill and keep' system for
all local calls as the agreement requires. AT & T is
not required to pay access charges for its use of
switched access services to terminate its local
calls. Pacific shall refund all of the improper access
charges it has received since December 19, 1996. The
amount of the refund is subject to proof by AT & T in
further proceedings before this Arbitrator in the
event the parties are unable to agree on the amount.
AT & T seeks to have this court confirm the arbitration award on the
liability issue, and seeks an order compelling Pacific Bell to submit the
damages issue to the arbitrator. AT & T further seeks an order enjoining
Pacific Bell from pursuing its complaint before the CPUC.
AT & T moves to confirm the arbitration award under the federal
Arbitration Act, 9 U.S.C. § 9. And plaintiffs request to return the
question of damages to the arbitrator also invokes Section 4 of that
Act. Pacific Bell ...