In the
United States Court of Appeals
For the Seventh Circuit

No. 98-2127

MCI TELECOMMUNICATIONS CORPORATION, a Delaware
Corporation, and MCI METRO ACCESS TRANSMISSION
SERVICES, INCORPORATED, a Delaware Corporation,

Plaintiffs-Appellees,

and

UNITED STATES OF AMERICA and FEDERAL
COMMUNICATIONS COMMISSION,

Intervenors-Appellees,

v.

ILLINOIS BELL TELEPHONE COMPANY, doing business as
Ameritech Illinois, Incorporated,

Defendant-Appellee,

and

ILLINOIS COMMERCE COMMISSION, TERRY HARVILL,
RUTH K. KRETSCHMER, in their official capacities as
Commissioners of the Illinois Commerce Commission
and not as individuals, et al.,

Defendants-Appellants.


Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 2225--David H. Coar, Judge.

Argued November 6, 1998--Reargued December 2, 1999--
Decided July 24, 2000


No. 99-2805

WISCONSIN BELL, INCORPORATED, doing business as
AMERITECH WISCONSIN,

Plaintiff-Appellant,

v.

PUBLIC SERVICE COMMISSION OF WISCONSIN, CHERYL L.
PARRINO, in her official capacity as a member of
the Commission, DANIEL J. EASTMAN, in his official
capacity as a member of the Commission, et al.,

Defendants-Appellees.
No. 99-2806

WISCONSIN BELL, INCORPORATED, doing business as
AMERITECH WISCONSIN,

Plaintiff-Appellant,

v.

PUBLIC SERVICE COMMISSION OF WISCONSIN, CHERYL L.
PARRINO and JOSEPH P. METTNER, Commissioners of the
Public Service Commission of Wisconsin,

Defendants-Appellees.


No. 99-2811

WISCONSIN BELL, INCORPORATED, doing business as
Ameritech Wisconsin,

Plaintiff-Appellant,

v.

PUBLIC SERVICE COMMISSION OF WISCONSIN, CHERYL L.
PARRINO, DANIEL J. EASTMAN, et al.,

Defendants-Appellees.


No. 99-2873

MCI METRO ACCESS TRANSMISSION SERVICES,
INCORPORATED, and MCI TELECOMMUNICATIONS
CORPORATION,

Plaintiffs-Appellants,

v.

PUBLIC SERVICE COMMISSION OF WISCONSIN, CHERYL L.
PARRINO, DANIEL J. EASTMAN, in their official
capacities as members of the Commission, et al.,

Defendants-Appellees.

No. 99-2992

WISCONSIN BELL, INCORPORATED, doing business as
Ameritech Wisconsin,

Plaintiff,

v.

PUBLIC SERVICE COMMISSION OF WISCONSIN, CHERYL L.
PARRINO, DANIEL J. EASTMAN, et al.,
Defendants-Appellees,

and

UNITED STATES OF AMERICA,

Intervenor-Appellant.


Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 97 C 566; 98 C 11; 98 C 153;
98 C 366--Barbara B. Crabb, Judge.


Argued December 2, 1999--Decided July 24, 2000



  Before RIPPLE, KANNE and DIANE P. WOOD, Circuit
Judges.

  RIPPLE, Circuit Judge. These consolidated
appeals challenge determinations made by state
regulatory commissions exercising their authority
under the Telecommunications Act of 1996 ("the
1996 Telecommunications Act" or "the Act"), Pub.
L. No. 104-104, 110 Stat. 56 (1996) (codified in
scattered sections of Title 47 of the United
States Code). We must decide whether private
carriers may sue state commissions and their
commissioners in federal court for alleged
violations of sec.sec. 251 and 252 of the Act.
These sections set forth the process by which
Congress sought to bring competition to local
telephone exchange markets through
interconnection agreements between incumbent and
new carriers. See 47 U.S.C. sec.sec. 251 & 252
(Supp. II 1996).

  One of the consolidated cases, 98-2127, is
before us on rehearing. In this case, Illinois
Bell, Inc. (doing business as Ameritech Illinois)
("Ameritech Illinois") and MCI Telecommunications
and MCI Metro Access Transmission Services, Inc.
(collectively "MCI") claim that the Illinois
Commerce Commission ("the ICC") and various
individual Commissioners ("the ICC
Commissioners") violated the Act with respect to
the ICC’s arbitration and approval of the
carriers’ interconnection agreement. The ICC and
the ICC Commissioners filed motions to dismiss on
Eleventh Amendment immunity grounds. The district
court denied those motions, see MCI Telecomms.
Corp. v. Illinois Bell Tel. Co., No. 97 C 2225,
1998 WL 156678 (N.D. Ill. 1998), and the ICC and
the ICC Commissioners have appealed.

  We affirmed the district court’s judgment in a
previous opinion. See MCI Telecomms. Corp. v.
Illinois Commerce Comm’n, 168 F.3d 315, amended
by 183 F.3d 558 (7th Cir. 1999). Thereafter,
however, the Supreme Court issued a trio of
opinions addressing the scope of Eleventh
Amendment immunity. See Alden v. Maine, 527 U.S.
706 (1999); College Savings Bank v. Florida
Prepaid Postsecondary Educ. Expense Bd., 527 U.S.
666 (1999); Florida Prepaid Postsecondary Educ.
Expense Bd. v. College Savings Bank, 527 U.S. 627
(1999). We therefore granted rehearing, restored
98-2127 to our calendar for oral argument, and
requested that the parties file supplemental
briefs addressing the impact of the Supreme
Court’s decisions on this case. See 183 F.3d 567,
567-68 (7th Cir. 1999).

  The other cases, all from Wisconsin, are before
us for the first time. Although aligned in
various ways, the parties involved in the
disputes include Wisconsin Bell, Inc. (doing
business as Ameritech Wisconsin) ("Ameritech
Wisconsin"), MCI,/1 the Public Service
Commission of Wisconsin ("the PSCW") and various
members of that commission ("the PSCW
Commissioners"). In each case, the PSCW or the
PSCW Commissioners or both were named as
defendants, and they filed motions to dismiss the
lawsuits against them on Eleventh Amendment
grounds. The district court granted the motions,
see Wisconsin Bell, Inc. v. Public Serv. Comm’n,
57 F. Supp.2d 710 (W.D. Wis. 1999), and the
carriers now appeal the district court’s
judgment.

  For the reasons that follow, we hold that the
Eleventh Amendment does not bar these suits
against the state commissions and their
commissioners because, in the particular
circumstances present in these cases, the states
have waived their Eleventh Amendment immunity by
participating in the regulatory scheme created by
the Act. We also hold, as an independent basis
for decision, that the carriers may proceed with
their respective federal claims for equitable
relief against the individual commissioners under
the Ex parte Young doctrine.

I
BACKGROUND
A. The Statutory Scheme

  Congress enacted the 1996 Telecommunications Act
"[t]o promote competition and reduce regulation
in order to secure lower prices and higher
quality services for American telecommunications
consumers and encourage the rapid deployment of
new telecommunications technologies." Pub. L. No.
104-104, 110 Stat. 56, 56 (1996). The Act
"fundamentally restructures local telephone
markets" by transforming the "long-standing
regime of state-sanctioned monopolies" into a
competitive market. AT&T Corp. v. Iowa Utils.
Bd., 525 U.S. 366, 371 (1999). Congress
recognized that, even after the removal of
regulatory restrictions on competition,
significant economic barriers would remain to
block entry into local telephone markets.
Prospective market entrants would face the cost
of duplicating an incumbent provider’s local
network infrastructure. To remove this economic
barrier, the Act essentially requires incumbent
local exchange carriers ("LECs") to share their
networks with competitors. Section 251 of the Act
requires incumbent LECs to allow new entrants to
interconnect with existing local networks, to
lease elements of existing local networks at
reasonable rates, and to purchase the incumbents’
services at wholesale rates and resell those
services to retail customers. See 47 U.S.C. sec.
251 (Supp. II 1996).

  Section 252 sets out the process by which
incumbent LECs and prospective carriers establish
interconnection agreements. First, incumbent LECs
and prospective carriers must negotiate in good
faith to reach voluntary interconnection
agreements. At any time during the negotiations,
a party may ask the appropriate state commission
to participate as a mediator in the negotiations.
See id. sec. 252(a)(2). If negotiations prove
unsuccessful, subsection 252(b) provides for
compulsory arbitration of any open issues. During
the period from the 135th to the 160th day after
an incumbent LEC receives a request for
negotiation, any party to the negotiation may
petition the state commission to arbitrate any
open issues. See id. sec. 252(b)(1). Sections 251
and 252 establish certain standards that the
state commission must follow in resolving open
issues by arbitration and in imposing conditions
on the parties. The state commission is also
bound by Federal Communications Commission
("FCC") regulations issued pursuant to sec. 251.

  Subsection 252(e) requires any interconnection
agreement reached by negotiation or arbitration
to be submitted to the state commission for
approval and specifies the grounds on which a
state commission can reject an agreement.
Specifically, state commissions may reject
negotiated interconnection agreements only if the
commission finds (1) that the agreement
discriminates against a carrier that is not a
party to the agreement or (2) that implementation
of the agreement (or a part thereof) would be
inconsistent with "the public interest,
convenience, and necessity." Id. sec.
252(e)(2)(A). A state commission may reject an
arbitrated interconnection agreement only if the
agreement (or part thereof) (1) does not meet the
requirements of sec. 251 and its implementing
regulations or (2) fails to meet the pricing
standards set forth in subsection 252(d). See id.
sec. 252(e)(2)(B).

  Subsection 252(e)(5) further provides that, if
a state commission fails to carry out any of its
responsibilities under sec. 252, then the FCC
must assume responsibility for the proceeding and
act for the state commission in carrying out its
functions. An implementing regulation to sec. 252
provides that a state commission "fails to act"
for purposes of subsection 252(e)(5)--thus
prompting the FCC to step in and assume the state
commission’s responsibilities--if it fails to
respond within a reasonable time to a request for
mediation or a request for arbitration, or if it
fails to complete an arbitration within the
established time limits. See 47 C.F.R. sec.
51.801(b). A state commission will not be deemed
to have failed to act, however, if it merely
fails to approve or reject an agreement within
the established time limits. See id. sec.
51.801(c). In such a case, the agreement will be
deemed approved. See 47 U.S.C. sec. 252(e)(4)
(Supp. II 1996).

  Therefore, subsections 252(e)(1), (e)(4), and
(e)(5), taken together and read in conjunction with
the FCC regulations, create a scheme that provides
regulatory oversight of interconnection agreements,
either by a state commission or by the FCC in the
state commission’s place. Only one scenario, not
present in our cases, appears to be a variation to
this scheme: when the parties reach a voluntarily
negotiated agreement without any request for
mediation or arbitration and the state commission
fails to act to approve or reject the agreement.
When these two circumstances occur, the resulting
agreement will be deemed approved by the state
commission, see id. sec. 252(e)(4); the FCC will
not step in to assume the approval function.

  The Act provides that federal district courts
have exclusive jurisdiction to review FCC or
state commission actions relating to
interconnection agreements. In subsection
252(e)(4), Congress expressly eliminated state
court jurisdiction to review actions of state
commissions in approving or rejecting agreements
under sec. 252. Moreover, subsection 252(e)(6),
titled "Review of State commission actions,"
provides that, whenever a state commission fails
to act, the exclusive remedies for that failure
to act will be proceedings by the FCC and any
judicial review of the FCC’s actions. Subsection
252(e)(6) also provides that, "[i]n any case in
which a State commission makes a determination
under this section, any party aggrieved by such
determination may bring an action in an
appropriate Federal district court to determine
whether the agreement or statement meets the
requirements of section 251 [and section 252]."

  On a separate but related note, Congress also
has opened up long distance service competition.
The Act allows Bell operating companies/2
("BOCs"), such as Ameritech Illinois or Ameritech
Wisconsin in our cases, to provide long distance
service to their customers--a service generally
off limits to BOCs under the pre-1996
Telecommunications Act regime--once certain
conditions have been met. Section 271 of the Act
allows BOCs to provide "out-of-region" long
distance service. See id. sec. 271(b)(2). For a
BOC to provide "in-region" long distance service,
however, the BOC must obtain FCC approval. See
id. sec. 271(b)(1). To obtain FCC approval, the
BOC must satisfy numerous requirements, one of
which is to show that the BOC has opened up its
local network to interconnection with new
competitors. See id. sec. 271(c). A BOC may make
this showing either by entering into
interconnection agreements with "one or more
unaffiliated competing providers of telephone
exchange service," id. sec. 271(c)(1)(A), or, if
no new entrants have requested interconnection
with the BOC, by showing that the appropriate
state commission has approved "a statement of the
terms and conditions that the [BOC] generally
offers to provide such access and
interconnection," id. sec. 271(c)(1)(B). These
two "methods" of obtaining FCC approval are
commonly known as "Track A" and "Track B." See
generally SBC Communications Inc. v. F.C.C., 138
F.3d 410, 413-21 (D.C. Cir. 1998) (discussing the
tracks by which BOCs may obtain FCC approval
under sec. 271 to provide in-region long distance
services).

  For a BOC seeking to obtain FCC approval using
the Track B approach, subsection 271(c)(1)(B)
requires the BOC to file with the appropriate
state commission a statement of generally
available terms and conditions (a "SGAT") and to
obtain approval of the SGAT as provided by
subsection 252(f). The SGAT sets forth the terms
and conditions the company intends to offer new
entrants seeking interconnection and access to
the BOC’s network. Once a BOC has filed a SGAT
with a state commission, that commission has 60
days within which to complete a review of it, see
47 U.S.C. sec. 252(f)(3)(A) (Supp. II 1996), or
to permit the statement to take effect, see id.
sec. 252(f)(3)(B). According to subsection
252(f)(2), a state commission may not approve an
SGAT unless the SGAT complies with subsection
252(d) and sec. 251 and the FCC regulations
thereunder. The Act also allows state commissions
to establish and enforce state law requirements
in their review of an SGAT, but the commissions
may do so only if those standards do not conflict
with the Act. See id. sec. 252(f)(2). Even after
an SGAT has been allowed to take effect under
subsection 252(f)(3)(B), however, the state
commission may continue to review such an SGAT
and may approve or disapprove it under subsection
252(f)(2) at any time. See id. sec. 252(f)(4). As
with the interconnection process, if a state
commission fails to act and the FCC has been made
aware of that failure to act, the FCC must assume
responsibility for the SGAT and act in place of
the state commission within 90 days. See id. sec.
252(e)(5). Similarly, the judicial review
provision in subsection 252(e)(6) also applies to
state commission determinations regarding SGATs.

B.   The Illinois Litigation
1.   The Lawsuit

  Appeal 98-2127 began as a lawsuit over an
interconnection agreement between Ameritech
Illinois and MCI. After negotiations failed to
produce an interconnection agreement between the
two companies, MCI petitioned the ICC, in
accordance with subsection 252(b)(1) of the Act
to arbitrate the unresolved issues. The ICC held
arbitration hearings and eventually approved a
final interconnection agreement for the two
companies. MCI then filed suit against Ameritech
Illinois, the ICC, and various individual ICC
Commissioners in their official capacities. MCI
alleged that the ICC had violated certain
sections of the Act when conducting the
arbitration proceedings and approving the terms
of the interconnection agreement. Ameritech
Illinois filed a cross-claim against MCI, the
ICC, and the ICC Commissioners in their official
capacities, asserting that one aspect of the
approved interconnection agreement was contrary
to the Act. In their complaints, both MCI and
Ameritech Illinois sought declaratory and other
equitable relief./3

2.   The Motions to Dismiss

  The ICC and the ICC Commissioners moved to
dismiss the claims against them on Eleventh
Amendment sovereign immunity grounds. The ICC and
the ICC Commissioners argued to the district
court that the Act could not abrogate Illinois’
immunity. They pointed out that Illinois had not
explicitly authorized waiver of its immunity
through any statute or constitutional provision.
They further contended that their participation
in the arbitration and review process under the
Act did not constitute waiver of sovereign
immunity because no provision of the Act required
the state to submit to suit as a condition for
exercising the authority granted it.

  Ameritech Illinois and MCI replied that Congress
had conditioned state commissions’ participation
in the arbitration and approval process on their
submission to federal court jurisdiction. Thus,
they argued, the ICC and the ICC Commissioners
waived any Eleventh Amendment immunity when they
elected to implement the federal regulatory
scheme set forth in the Act with full knowledge
that their determinations would be reviewable
exclusively in federal court.

  In reply, the ICC and the ICC Commissioners
reemphasized that the Act contains no specific
language expressly conditioning state commission
participation in the regulatory process on
consent to suit in federal court. Rather, they
contended, the Act provides only for federal
court review of the agreements themselves.

3.    Decision of the District Court

  The district court denied the motions to
dismiss. The district court determined that the
ICC defendants constructively had waived their
Eleventh Amendment immunity and, in the
alternative, that there was no Eleventh Amendment
barrier to the suits against the ICC
Commissioners because of the Ex parte Young
doctrine. The district court’s decision in this
case preceded the Supreme Court’s decisions in
Alden, College Savings and Florida Prepaid, and,
therefore, the district court could not have
accounted for any impact those decisions might
have on the Eleventh Amendment analysis.

(a)

  The district court first determined that
Seminole Tribe v. Florida, 517 U.S. 44 (1996),
had not invalidated the doctrine of implied
waiver. In the court’s view, although Seminole
Tribe restricted Congress’ ability to abrogate
directly the states’ sovereign immunity, the
Supreme Court’s decision left untouched the
"unremarkable and completely unrelated" doctrine
of waiver. MCI Telecomms. Corp. v. Illinois Bell
Tel. Co., No. 97 C 2225, 1998 WL 156678, at *6
(N.D. Ill. 1998) (quoting Seminole Tribe, 517
U.S. at 63) (internal quotation marks omitted).
The district court then concluded that the ICC
had participated voluntarily in the regulatory
scheme established by the 1996 Telecommunications
Act because the Act provided states with the
option to arbitrate and to approve the
interconnection agreements themselves or,
instead, to let the FCC perform that function.
Additionally, the district court noted, Congress
had made it expressly clear in subsection
252(e)(6) that, if a state opted to participate
in the regulatory scheme, its actions would be
reviewable in federal court. Thus, the court
concluded, the ICC had waived immunity from suit
in federal court by participating voluntarily in
the arbitration and approval process.

(b)

  In the alternative, the district court also held
that the doctrine of Ex parte Young provided a
basis for the ICC Commissioners’ lack of Eleventh
Amendment immunity from this suit. The district
court first noted that, contrary to the ICC
Commissioners’ arguments, the relief sought by
Ameritech Illinois and MCI was prospective in
nature. The companies sought no money damages but
only declaratory and injunctive relief to redress
ongoing violations of federal law.

  The district court also rejected the ICC
Commissioners’ argument that an Ex parte Young
action is available only when plaintiffs allege a
constitutional (as opposed to statutory)
violation. Relying on our decision in Marie O. v.
Edgar, 131 F.3d 610 (7th Cir. 1997), the court
held that an Ex parte Young action can be brought
to vindicate violations of a federal statute.

  The district court then concluded that the
limitations placed on the Ex parte Young doctrine
by Seminole Tribe and Idaho v. Coeur d’Alene
Tribe, 521 U.S. 261 (1997), did not affect the
application of the Ex parte Young doctrine to
this case. Seminole Tribe limited, the district
court acknowledged, the reach of Ex parte Young
in cases in which Congress has created a detailed
and comprehensive remedial scheme. But, the
district court held, the provisions of the 1996
Telecommunications Act at issue in this case did
not create any such detailed scheme that would
limit the type of remedies available to a
district court. The district court further held
that the narrow exception to Ex parte Young
created in Coeur d’Alene also did not apply to
this case. The district court explained that "the
issues of sovereign immunity presented by review
of state actions taken pursuant to the
Telecommunication Act are not nearly as
compelling as those presented by the state of
Idaho in the dispute over lands that it has
historically considered a part of its territory."
1998 WL 156678, at *12.

  Finally, the district court rejected the ICC
Commissioners’ argument that Congress did not
intend to make states parties to the federal
suits reviewing interconnection agreements, but
instead meant only to provide review of the
agreements themselves. In rejecting this
argument, the district court pointed out that the
subsection providing for federal court review was
titled "Review of State Commissions Actions." Id.
at *14.

C. The Wisconsin Litigation
1. The Lawsuits
(a)

  Appeals 99-2805, 99-2873 and 99-2992 are the
result of a dispute over an interconnection
agreement entered into by Ameritech Wisconsin and
MCI and approved by the PSCW. Ameritech Wisconsin
and MCI had entered into interconnection
negotiations as provided under subsection 252(a)
of the Act, but because the parties failed to
reach an agreement on some issues, MCI petitioned
the PSCW under subsection 252(b)(1) to arbitrate
the remaining issues. The PSCW held arbitration
hearings and ultimately approved a final
interconnection agreement between Ameritech
Wisconsin and MCI.

  The final agreement satisfied neither party.
Thus, Ameritech Wisconsin filed suit against MCI,
the PSCW, and the PSCW Commissioners in their
official capacities to challenge portions of the
final agreement approved by the PSCW. In its
complaint, Ameritech Wisconsin alleged that
certain provisions of the final agreement were
contrary to the 1996 Telecommunications Act. The
complaint sought declaratory and injunctive
relief to enjoin the enforcement of the
challenged provisions. Thereafter, MCI filed its
own suit against Ameritech Wisconsin, the PSCW,
and the PSCW Commissioners in their official
capacities to challenge other portions of the
same agreement. Like Ameritech Wisconsin, MCI
alleged in its complaint that various provisions
of the final agreement violated the 1996
Telecommunications Act. MCI also sought
declaratory and injunctive relief. The district
court consolidated the two cases, and the United
States later intervened. After the district court
issued its decision in this case, each party
filed its own notice of appeal.

(b)
  Appeal 99-2806 involves the PSCW’s
interpretation and enforcement of previously
approved interconnection agreements between
Ameritech Wisconsin and TCG of Milwaukee, Inc.
("TCG") and between Ameritech Wisconsin and Time
Warner Communications of Milwaukee L.P. ("Time
Warner"). Ameritech Wisconsin and TCG entered
into their agreement, which was approved by the
PSCW, following negotiations and arbitration;
Ameritech Wisconsin and Time Warner arrived at
their final agreement, which the PSCW also
approved, after negotiations only.
  Ameritech Wisconsin’s interconnection agreements
with TCG and Time Warner require "reciprocal
compensation" only for "local traffic" calls
(calls "beginning" and "terminating" within the
"local calling area"). After the PSCW had
approved these agreements, a dispute arose over
whether Ameritech Wisconsin was required, under
its respective interconnection agreements with
TCG and Time Warner, to pay reciprocal
compensation for calls placed by Ameritech
Wisconsin customers to the Internet via Internet
service providers who were, in turn, customers of
TCG or Time Warner. Because Ameritech Wisconsin
believed that the disputed Internet calls did not
"terminate" within the local calling area, it
deemed these calls not to be "local traffic" and
therefore refused to pay reciprocal compensation
for them.

  TCG and Time Warner, however, understood their
respective interconnection agreements to entitle
them to reciprocal compensation for the disputed
Internet calls. Thus, they filed separate
complaints with the PSCW. The companies alleged
that Ameritech Wisconsin was not complying with
the reciprocal compensation provisions of their
respective interconnection agreements, and they
asked the PSCW to enforce those provisions. The
PSCW adopted the interpretation proffered by TCG
and Time Warner and later entered separate
enforcement orders against Ameritech Wisconsin
ordering it to pay the requested reciprocal
compensation. Ameritech Wisconsin then filed suit
in the district court and named as defendants
TCG, Time Warner, the PSCW, and the PSCW
Commissioners in their official capacities. In
its complaint, Ameritech Wisconsin alleged that
the PSCW’s enforcement orders were contrary to
the 1996 Telecommunications Act, FCC regulations,
and Wisconsin law. The complaint sought
declaratory and other equitable relief.
(c)

  The final appeal, 99-2811, stems from the PSCW’s
rejection of an SGAT filed with the PSCW by
Ameritech Wisconsin. In proceedings before the
PSCW, a number of new entrants opposed portions
of the SGAT filed by Ameritech Wisconsin. The
PSCW adopted the views of those that opposed
Ameritech Wisconsin’s SGAT, and the PSCW
eventually rejected the SGAT. Ameritech Wisconsin
filed suit in the district court against the PSCW
and the PSCW Commissioners in their official
capacities to obtain judicial review of that
decision. Ameritech Wisconsin’s complaint alleged
violations of the 1996 Telecommunications Act,
and, to the extent that the PSCW had purported to
rely on state law to make its decision, the
complaint further alleged that the Act preempted
the state laws. Ameritech Wisconsin sought
declaratory and other equitable relief./4

2.    The Motions to Dismiss

  Like their Illinois counterparts, the PSCW and
the PSCW Commissioners filed motions to dismiss
each of these cases. They argued that the
Eleventh Amendment provided them with immunity
from suit in federal court.

  Ameritech Wisconsin and MCI argued that
Wisconsin had waived its immunity by choosing to
regulate interconnection agreements in accordance
with the 1996 Telecommunications Act. By
exercising the power granted by the Act,
according to Ameritech Wisconsin and MCI, the
PSCW and the PSCW Commissioners had consented
implicitly to being sued in federal court under
subsection 252(e)(6). Alternatively, Ameritech
Wisconsin and MCI argued that the PSCW
Commissioners could be sued under the Ex parte
Young doctrine.

3.    Decision of the District Court

  The district court issued two decisions relevant
to our discussion. In both opinions, the district
court held that Eleventh Amendment immunity
barred the suits against the PSCW and the PSCW
Commissioners.

(a)

  In its first opinion, reported at Wisconsin
Bell, Inc. v. Public Serv. Comm’n, 27 F. Supp.2d
1149 (W.D. Wis. 1998), the district court granted
the motions to dismiss. According to the court,
the PSCW had not waived its immunity by
performing its role under sec. 252 of the 1996
Telecommunications Act. Furthermore, the district
court concluded that the suits against the PSCW
Commissioners could not proceed under the Ex
parte Young doctrine.

  The district court first analyzed whether the
PSCW and the PSCW Commissioners could have waived
their immunity by acting on the interconnection
agreements and SGAT at issue in the cases before
it. In the court’s estimation, Congress had made
its intention sufficiently clear in the 1996
Telecommunications Act that state commissions
would be subject to suit in federal court to
defend their rulings. Nevertheless, the district
court concluded, the Act did not obtain a valid,
voluntary waiver of immunity from states. The
court reached this conclusion after evaluating
the Supreme Court’s decisions in Parden v.
Terminal Railway of the Alabama State Docks
Department, 377 U.S. 184 (1964), and Employees of
the Department of Public Health & Welfare v.
Department of Public Health & Welfare, 411 U.S.
279 (1973), both of which concerned the so-called
"constructive waiver" doctrine.

  According to the district court, under these
cases the constructive waiver doctrine could not
apply to the 1996 Telecommunications Act for
several reasons. First, the court noted that,
despite the many changes in telecommunications
regulation wrought by the Act, the Act preserved
the states’ role as the primary regulators of
local telephone service; the district court
understood the Supreme Court’s holding in
Employees to preclude the application of the
constructive waiver doctrine "when the federal
government amends or enacts a law making a state
subject to suit merely by continuing in existing
activities to protect its citizens." 27 F.
Supp.2d at 1158 (citing Employees, 411 U.S. at
296 (Marshall, J., concurring)). The district
court next observed that when state commissions
are asked to review voluntarily negotiated
interconnection agreements, state commissions
must review that agreement "or accept the
consequence that the agreement will go into
effect without any form of government oversight."
Id. Finally, the district court explained its
view that "staying out of the interconnection
process cannot be said to be a realistic option
for a state commission" because the commission
cannot be expected to abandon its mandate to
protect the public interest. Id. For these
reasons, the district court explained, any waiver
obtained from Wisconsin under the Act could not
have been voluntary.

  The district court also determined that the Ex
parte Young doctrine was inapplicable to these
cases. The court reached this conclusion based on
its reading of the Supreme Court’s decision in
Seminole Tribe. According to the district court,
in order for it to determine whether application
of the Ex parte Young doctrine was appropriate
here, Seminole Tribe required the court to engage
in a two-step inquiry. Thus, it analyzed (1)
whether Congress created a remedy for the rights
created in the 1996 Telecommunications Act and
(2) whether the remedy created by Congress
contemplated a suit against a state official. The
district court never reached the second aspect of
this inquiry because it concluded that, with the
Act, Congress had created an adequate remedy to
secure federal rights such that Seminole Tribe
precluded the application of the Ex parte Young
doctrine in these cases. The district court
explained that, although the remedy created in
subsection 252(e)(6) was "much less ’detailed’"
than the statutory remedy at issue in Seminole
Tribe, the court believed that it would be
improper simply to compare the two statutory
schemes to see which one was more detailed. Id.
at 1161. Rather, the court stated, "a ’simple’
remedy may be all that is necessary to secure
federal rights." Id. The district court concluded
that Congress made a choice in the Act to limit
the available remedy under sec. 252 "to having a
commission’s ruling tested in federal court." Id.
This "limited review" scheme, said the court,
allowed federal courts "to cure errors in federal
law without subjecting state commissioners to the
full remedial powers of a federal district
court." Id. Under Seminole Tribe, the court
concluded, the Ex parte Young doctrine could not
be used here "because the remedy Congress chose
secures federal rights adequately." Id. That
Congress had chosen, as it turns out, an
unconstitutional remedy did not change the result
here, the district court explained, because under
Seminole Tribe it was "prevented from ’rewriting
the statutory scheme in order to approximate what
[it thought] Congress might have wanted.’" Id.
(quoting Seminole Tribe, 517 U.S. at 76).

(b)

  Although the district court had ruled that the
suits against the PSCW and the PSCW Commissioners
should be dismissed, the court stayed the
enforcement of its ruling pending further
briefing and argument by the parties on whether
the PSCW and the PSCW Commissioners were
necessary parties under Rule 19(b) of the Federal
Rules of Civil Procedure. The district court also
allowed the PSCW and the PSCW Commissioners to
amend their answers to include a Tenth Amendment
defense.

  Before the district court issued an opinion
addressing the remaining Rule 19(b) issues,
however, we issued our initial decision in 98-
2127. See MCI Telecomms. Corp. v. Illinois
Commerce Comm’n, 168 F.3d 315, amended by 183
F.3d 558 (7th Cir. 1999). The district court
ordered further briefing and argument from the
parties on the effect our opinion had on the
cases before the district court. Then, the
Supreme Court issued its rulings in Alden,
College Savings and Florida Prepaid. After
hearing argument from the parties, the district
court issued a final opinion, reported at
Wisconsin Bell, Inc. v. Public Serv. Comm’n, 57
F. Supp.2d 710 (W.D. Wis. 1999), dismissing the
suits.

  In this second ruling, the district court
explained that our initial decision in 98-2127
was no longer controlling in light of the Supreme
Court’s intervening decision in College Savings.
According to the district court, it was obligated
to follow the most recent Supreme Court
precedent, and College Savings, the court
believed, compelled the dismissal of the suits
against the PSCW and the PSCW Commissioners. The
district court recognized that College Savings
preserved "some apparent constructive waivers,"
such as when Congress provides a gift to a state
in return for the state’s waiver of immunity, but
it concluded that the Supreme Court’s decision
precluded the finding of such a waiver in the
context of the 1996 Telecommunications Act. Id.
at 715. Instead, the court explained, "[t]here is
no arguable basis to a claim that equates a gift
with a state’s participation in the act’s
cooperative federalism (supervising the
regulation of local telephone carriers in the
state)." Id. Within the context of the 1996
Telecommunications Act, the district court
explained, a state’s acceptance of the "gift" of
being able to participate in the interconnection
process could not be equated with the kind of
"gifts" found acceptable by the Supreme Court in
College Savings. "A state’s continued regulation
of local enterprise (local telephone carriers),"
the district court reasoned, "is an ’otherwise
permissible activity’ that can yield no inference
as to a state’s motivation for doing it." Id.

  The district court also reaffirmed its prior
ruling on the applicability of the Ex parte Young
doctrine. In addition to the points it had raised
in its first decision, the court further noted
two other problems with proceeding under the Ex
parte Young doctrine in these cases. First, the
court noted that "one must acknowledge the
conceptual difference between a state official
performing state functions in a way that violates
federal law and a state official who is
performing federally authorized functions but is
alleged to have performed those functions
improperly." Id. at 713. Second, the court noted
"the oddity" of allowing an Ex parte Young suit
to proceed against individual commissioners, some
of whom may have dissented from the decision
being challenged in court. Id. In the end,
however, the district court explained that, even
if these hurdles to applying the Ex parte Young
doctrine could be overcome, Seminole Tribe
precluded the application of the doctrine to
these cases because the 1996 Telecommunications
Act provided a limited remedy for violations of
the Act./5

II
DISCUSSION

  The Eleventh Amendment to the Constitution of
the United States provides:

The Judicial power of the United States shall not
be construed to extend to any suit in law or
equity, commenced or prosecuted against one of
the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.
U.S. Const. amend. XI. The Supreme Court has long
held that this Amendment bars federal
jurisdiction over suits brought against a state,
not only by citizens of another state or a
foreign state, but also by its own citizens. See,
e.g., College Savings Bank v. Florida Prepaid
Postsecondary Educ. Expense Bd., 527 U.S. 666,
669-70 (1999); Edelman v. Jordan, 415 U.S. 651,
662-63 (1974); Hans v. Louisiana, 134 U.S. 1, 13-
15 (1890). The immunity conferred on a state by
the Eleventh Amendment extends to state agencies
as well. See, e.g., Puerto Rico Aqueduct & Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144
(1993). Subject to the exception carved out in Ex
parte Young, 209 U.S. 123 (1908), the Eleventh
Amendment also bars federal jurisdiction over
suits against state officials acting in their
official capacities when the state is the real
party in interest. See, e.g., Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02
(1984) ("Pennhurst II").

  The immunity afforded to states by the Eleventh
Amendment, however, is not absolute. See College
Savings, 527 U.S. at 670. Congress may exercise
its power under the Fourteenth Amendment and
thereby authorize private suits against
unconsenting states. See id.; Fitzpatrick v.
Bitzer, 427 U.S. 445, 456 (1976). A state also
may waive its immunity from suit. See College
Savings, 527 U.S. at 670; Atascadero State Hosp.
v. Scanlon, 473 U.S. 234, 238 (1985); Marie O. v.
Edgar, 131 F.3d 610, 615 (7th Cir. 1997).
Additionally, the Ex parte Young doctrine allows
private parties to sue individual state officials
for prospective relief to enjoin ongoing
violations of federal law. See, e.g., Ex parte
Young, 209 U.S. at 159-60; Dean Foods Co. v.
Brancel, 187 F.3d 609, 613 (7th Cir. 1999); Marie
O., 131 F.3d at 615.

  We review de novo a district court’s judgment on
whether to dismiss a claim on Eleventh Amendment
immunity grounds. See Goshtasby v. Board of
Trustees of the Univ. of Ill., 141 F.3d 761, 764
(7th Cir. 1998), abrogated on other grounds by
Kimel v. Florida Bd. of Regents, 120 S. Ct. 631
(2000).

A.   Threshold Matters

  As a threshold matter, the ICC and the ICC
Commissioners, relying on subsection 252(e)(6),
submit that we need not concern ourselves with
the application of the Eleventh Amendment because
the 1996 Telecommunications Act does not even
provide for suits against states in federal
court, but instead provides only for federal
court review of the interconnection agreements
themselves. We cannot accept this contention; the
provisions of the Act, read as a whole, will not
permit such a construction and, indeed, make
clear that Congress’ intent was to the contrary.

  At the outset, we note that the subsection
providing for judicial review is titled "Review
of State commission actions," not "Review of
interconnection agreements," thus signaling that
Congress intended that the state commissions be
parties to the federal court suits reviewing
their actions, just as the FCC is a party to
suits seeking review of its actions. Moreover,
subsection 252(e)(4), when read in conjunction
with subsection 252(e)(6), provides additional
evidence that Congress contemplated suits against
state defendants in federal court. Subsection
252(e)(4) provides that "[n]o State court shall
have jurisdiction to review the action of a State
commission in approving or rejecting an agreement
under this section." 47 U.S.C. sec. 252(e)(4)
(Supp. II 1996). This language indicates that
Congress envisioned suits reviewing "actions" by
state commissions, as opposed to suits reviewing
only the agreements themselves, and that Congress
intended that such suits be brought exclusively
in federal court.

  In a similar vein, the PSCW and the PSCW
Commissioners contend that we lack subject matter
jurisdiction in case 99-2806 because that case
involves the enforcement of previously approved
interconnection agreements. According to the PSCW
and the PSCW Commissioners, subsection 252(e)(6)
does not confer jurisdiction on federal courts to
review enforcement or other post-approval
determinations made by state commissions.
Instead, they submit, the plain language of
subsection 252(e)(6) limits federal jurisdiction
to reviewing a state commission’s approval or
rejection of an interconnection agreement or
SGAT.

  We decline to read subsection 252(e)(6) so
narrowly. See Southwestern Bell Tel. Co. v.
Public Util. Comm’n, 208 F.3d 475, 479-81 (5th
Cir. 2000). A state commission’s authority to
approve or reject interconnection agreements
under the Act necessarily includes the authority
to interpret and enforce, to the same extent, the
terms of those agreements once they have been
approved by that commission. See id. at 479-80;
Iowa Utils. Bd. v. F.C.C., 120 F.3d 753, 804 &
n.24 (8th Cir. 1997) (stating that "the state
commissions’ plenary authority to accept or
reject these [interconnection] agreements
necessarily carries with it the authority to
enforce the provisions of agreements that the
state commissions have approved"), aff’d in part
and rev’d in part on other grounds sub nom. AT&T
Corp. v. Iowa Utils. Bd., 525 U.S. 366 (1999)./6
In sum, we believe that subsection 252(e)(6)
contemplates that state commissions will be
parties to suits brought by those aggrieved by
their determinations. This provision confers
federal jurisdiction to review "state commission
rulings on complaints pertaining to
interconnection agreements and . . . such
jurisdiction is not restricted to mere approval
or rejection of such agreements." Southwestern
Bell, 208 F.3d at 481; see also Illinois Bell
Tel. Co. v. Worldcom Techs., Inc., 179 F.3d 566,
570-71 (7th Cir. 1999) (stating that federal
courts have jurisdiction under subsection
252(e)(6) to review "actions" by state
commissions that relate to interconnection
agreements).

B.   Abrogation

  Unquestionably, Congress could not have
abrogated state sovereign immunity with the 1996
Telecommunications Act. The Act is an exercise of
Congress’ Commerce Power under Article I of the
Constitution, see 47 U.S.C. sec. 151 (Supp. II
1996), and as the Supreme Court has made
inescapably clear, Congress may not abrogate
Eleventh Amendment immunity through the exercise
of its Article I powers. See College Savings, 527
U.S. at 672; Florida Prepaid Postsecondary Educ.
Expense Bd. v. College Savings Bank, 527 U.S.
627, 636 (1999); Seminole Tribe v. Florida, 517
U.S. 44, 72 (1996) ("Even when the Constitution
vests in Congress complete lawmaking authority
over a particular area, the Eleventh Amendment
prevents congressional authorization of suits by
private parties against unconsenting States.").
Thus, because the states’ immunity cannot be
abrogated by the 1996 Telecommunications Act, we
must look to whether Illinois and Wisconsin have
waived their Eleventh Amendment immunity in the
cases before us.

C.   Waiver

  1.

  The decision to waive Eleventh Amendment
immunity lies solely with the state, see College
Savings, 527 U.S. at 675, and we "indulge every
reasonable presumption against" a state’s waiver
of its immunity, see id. at 682 (quotation marks
and citation omitted). Thus, the test "for
determining whether a State has waived its
immunity from federal-court jurisdiction is a
stringent one." Id. at 675 (quoting Atascadero,
473 U.S. at 241 (internal quotation marks
omitted)). We may find that a state has waived
its immunity when "the State voluntarily invokes"
federal jurisdiction or when "the State makes a
’clear declaration’ that it intends to submit
itself" to federal jurisdiction. College Savings,
527 U.S. at 675-76 (citations omitted). In either
case, there must be an "unequivocal indication
that the State intends to consent to federal
jurisdiction that otherwise would be barred by
the Eleventh Amendment." Atascadero, 473 U.S. at
238 n.1; see also College Savings, 527 U.S. at
680 ("The whole point of requiring a ’clear
declaration’ by the State of its waiver is to be
certain that the State in fact consents to
suit."); Mueller v. Thompson, 133 F.3d 1063, 1064
(7th Cir. 1998) ("No magic words are required,
but implicit waivers won’t do; the court must be
highly confident that the state really did intend
to allow itself to be sued in federal court."
(citations omitted)).

2.

  The Supreme Court’s recent decisions in Alden,
College Savings and Florida Prepaid have refined
the jurisprudence with respect to state sovereign
immunity. The Court’s decisions in Alden and
Florida Prepaid, although impacting Eleventh
Amendment jurisprudence in other important ways,
do not bear directly on the questions of waiver
that we confront in our cases. In contrast, the
Court’s decision in College Savings is especially
pertinent to our analysis here because that
decision squarely addressed Congress’ power to
obtain waivers of state immunity when Congress
acts within its Article I powers. In College
Savings, the Court held that states do not
"constructively" waive their sovereign immunity
by engaging in activities in interstate commerce
that are regulated by Congress under its Article
I power. See College Savings, 527 U.S. at 680. By
so holding, the Court overruled Parden v.
Terminal Railway of the Alabama Docks Department,
377 U.S. 184 (1964), a case in which the Court
had held that Alabama waived its sovereign
immunity by operating a railroad that was
regulated by Congress under its Commerce Power.
  At issue in College Savings was whether the
state of Florida had "constructively" waived its
immunity by marketing a college savings plan in
interstate commerce. By an amendment to the
Lanham Act,/7 Congress had subjected states to
suit in federal court for false representations
in commerce, and the plaintiff, College Savings
Bank, argued that Florida had waived its immunity
by engaging in the activity regulated by that
federal statute. The Supreme Court disagreed.
According to the Court, Florida could not waive
its immunity merely by engaging in the regulated
activity because "there is little reason to
assume actual consent based upon the State’s mere
presence in a field subject to congressional
regulation." College Savings, 527 U.S. at 680;
see also Burnette v. Carothers, 192 F.3d 52, 60
(2d Cir. 1999) (holding, in a post-College
Savings case, that a state did not consent to
suit for CERCLA violations by operating a prison
that had released toxic chemicals).

  The commissions in our cases argue that the
Court’s decision in College Savings has
eliminated all so-called "constructive" or
"implied" waivers. We, however, cannot agree with
their assessment of that case. The Court in
College Savings limited its abandonment of
"constructive" or "implied" waivers to the "ill
conceived" "constructive-waiver experiment of
Parden." College Savings, 527 U.S. at 680.
Indeed, the Court did not call into question
other types of "constructive" waivers obtained by
Congress acting within its Article I powers.
Rather, the Court simply held that states cannot
"constructively" waive their immunity by being
forced by Congress to choose between preserving
their sovereign immunity and engaging in an
"otherwise lawful activity." Id. at 687.

  To illustrate the types of "constructive"
waivers that Congress may still obtain from
states, the Court provided two examples of
constructive waivers that are "fundamentally
different" from Parden-style waivers and that are
viable after College Savings. Id. at 686. In the
first example, Petty v. Tennessee-Missouri Bridge
Commission, 359 U.S. 275 (1959), Congress
required Tennessee and Missouri to waive their
immunity as a condition for Congress’ approval of
the interstate compact made between the two
states. The Court in College Savings explained
that the constructive waiver exacted by Congress
in that case was valid because, under the Compact
Clause of the Constitution, states cannot form
interstate compacts without congressional
approval. As the Court explained it, Congress’
consent to an interstate compact is a "gratuity"
that Congress could give or withhold. College
Savings, 527 U.S. at 686.

  In the second example, South Dakota v. Dole, 483
U.S. 203 (1987), the Court held that Congress
could impose conditions on a state’s acceptance
of federal funds allocated under the Spending
Power. In Dole, Congress had conditioned the
allocation of federal highway funds on South
Dakota’s raising its drinking age. The Court in
College Savings explained that its holding in
Dole made clear that "Congress may, in the
exercise of its spending power, condition its
grant of funds to the States upon their taking
certain actions that Congress could not require
them to take, and that acceptance of the funds
entails an agreement to the actions." College
Savings, 527 U.S. at 686. Just as it was a
"gratuity" for Congress to approve an interstate
compact, the Court in College Savings noted that
federal funds were a "gift" from Congress that it
was under no obligation to give. Id. at 686-87.

  Because the Court in College Savings endorsed
some kinds of "constructive" waivers, we cannot
accept the commissions’ argument that all
constructive waivers are now foreclosed. We
instead understand the Court’s holding in College
Savings to set boundaries for congressional
attempts to obtain waivers from states. See id.
at 690 (stating that "[o]ur opinion today has
sought to discern what the bounds [of federal
power] are"). In Seminole Tribe, the Court had
held that Congress could not abrogate state
sovereign immunity through the exercise of its
Article I powers. Parden-style waivers--in which
a state was deemed to have waived its immunity
simply by engaging in an activity regulated by
Congress in the exercise of its Article I powers-
-nevertheless effectively allowed Congress to
circumvent the holding of Seminole Tribe. See id.
at 683. As the Court explained in College
Savings, the type of "forced waiver" exacted by
Congress under Parden, whereby the state is
threatened with the sanction of waiving its
immunity if it engages in a regulated enterprise,
was really an abrogation of the state’s immunity
prohibited by Seminole Tribe. See id. (noting
that forced waiver and abrogation are "the same
side of the same coin"); see also Chavez v. Arte
Publico Press, 204 F.3d 601, 604 n.5 (5th Cir.
2000) ("College Savings expressly overruled
Parden and its implied waiver theory. That theory
is no longer available to support an Article I
abrogation of Eleventh Amendment Immunity."
(emphasis added) (citation omitted)). The Court’s
decision in College Savings closed the "forced
waiver" loophole left open by Parden.

  With these principles in mind, we shall now turn
to the cases before us to examine whether there
is a valid waiver.

3.

  We first examine, as a threshold matter, whether
Congress, in inviting the states to waive their
Eleventh Amendment immunity, has done so with
sufficient clarity. When it intends to obtain a
waiver of immunity from the states, Congress must
"speak with a clear voice" so that the states may
exercise their choice to waive their immunity
"knowingly, cognizant of the consequences of
their participation." Pennhurst State Sch. &
Hosp. v. Halderman, 451 U.S. 1, 17 (1981)
("Pennhurst I"); accord Atascadero, 473 U.S. at
238-40 (stating that the Court has required "an
unequivocal expression of congressional intent"
to obtain an Eleventh Amendment waiver from
states (citation omitted)); see also Dole, 483
U.S. at 207 (quoting Pennhurst I and stating that
Congress must state the condition
"’unambiguously’").

  The commissions submit that there can be no
waiver of sovereign immunity in these cases
because the language of the 1996
Telecommunications Act contains no clear and
unambiguous expression of Congress’ intent to
condition the states’ participation in the Act’s
regulatory scheme on their consent to suit in
federal court. The commissions point out that the
Act does not even mention sovereign immunity or
indicate an intent to give states a choice
between carrying out their responsibilities under
the Act or retaining their sovereign immunity by
letting the FCC fulfill their responsibilities.
The absence of these elements from the statutory
language negates, in the commissions’ view, any
possibility of a valid waiver; the statutory
language contains no explicit manifestation that
Congress clearly intended to condition the
states’ participation under the Act on their
waiver of sovereign immunity.

  We cannot accept this argument. Although the
language of the statute does not contain the
express waiver language that the commissions
seek, the structure of the pertinent section of
the statute, notably 47 U.S.C. sec. 252 (Supp. II
1996), nevertheless makes clear that Congress
intended to provide for federal court review of
any regulatory determination made under the
section, whether by a state commission or, if the
state commission chooses not to act, by the FCC
acting in its place. Section 252 first describes
the duties of the carriers seeking to enter into
an interconnection agreement and then details the
role of the state commissions in the mediation,
arbitration and review process. It sets forth the
standards by which the state commissions may
impose terms upon the parties to the
interconnection agreements during arbitration as
well as the standards by which the state
commissions must approve or reject an agreement.
Subsection 252(e)(5) then provides that, if a
state commission does not carry out its
responsibilities under sec. 252, the FCC will act
in place of the state commission. Subsection
252(e)(6), titled "Review of State commission
actions," then provides that the exclusive remedy
for a state commission’s failure to act will be
the proceedings before the FCC and any judicial
review of the FCC’s actions. It further provides
that any party aggrieved by a state commission’s
determination under sec. 252 may obtain review
"in an appropriate Federal district court to
determine whether the agreement or statement
meets the requirements of section 251 [and
section 252]." 47 U.S.C. sec. 252(e)(6) (Supp. II
1996).

  Thus, under the terms of sec. 252, the state
commission or, if that body chooses not to act,
the FCC will exercise regulatory authority over
interconnection agreements. That administrative
action, whether taken by a state administrative
tribunal or by the FCC, is subject to review in
federal court. If the reviewing body is a state
commission, the statute provides that the
commission’s actions are reviewable in federal
court under subsection 252(e)(6); if the
reviewing body is the FCC, its actions are
reviewable in federal court under 28 U.S.C. sec.
2342(1). In short, Congress has expressed
unmistakably that, under the 1996
Telecommunications Act, states could participate
in the federal regulatory function delegated to
them by the federal government on the condition
that their participation be reviewable in federal
court. We therefore conclude that the 1996
Telecommunications Act satisfies the requirement
that Congress clearly state that participation by
the state in the regulatory scheme entails a
waiver of immunity from suit in federal court.
Accord MCI Telecomms. Corp. v. Public Serv.
Comm’n, No. 99-4203, 2000 WL 783382, at *8 (10th
Cir. June 20, 2000) (concluding that sec. 252
puts states on notice that Congress intends to
subject them to suit in federal court if they act
under sec. 252).

4.

  We now turn to the question of whether the
states have unequivocally waived their Eleventh
Amendment immunity. As the Supreme Court has
noted, there is "a fundamental difference"
between "Congress’s expressing unequivocally its
intention that if the State takes certain action
it shall be deemed to have waived [its] immunity"
and "a State’s expressing unequivocally that it
waives its immunity." College Savings, 527 U.S.
at 680-81. Therefore, we must determine whether
the states made a clear declaration that they
desired to waive their immunity.

  The carriers do not contend that Illinois or
Wisconsin waived their immunity by statute.
Rather, they maintain that these states have
waived their Eleventh Amendment immunity by
accepting the federal government’s invitation to
act as regulators of the local telephone market
in accordance with sec. 252 of the 1996
Telecommunications Act. We agree with that
assessment and therefore hold, as the Tenth
Circuit held in MCI Telecommunications Corp. v.
Public Service Commission, No. 99-4203, 2000 WL
783382, (10th Cir. June 20, 2000), that states
voluntarily waive their sovereign immunity by
accepting that invitation.

  The commissions endeavor to distinguish the
Petty- and Dole-style waivers endorsed by the
Supreme Court in College Savings from the
situations in the cases before us. According to
the commissions, the waivers obtained by the 1996
Telecommunications Act are fundamentally
different than those in Petty and Dole. They
point out that Petty involved Congress’ Compact
Power and Dole its Spending Power, while the 1996
Telecommunications Act is an exercise of
Congress’ Commerce Power. We do not believe that
this distinction is helpful to the analysis
required by College Savings. In College Savings,
the Supreme Court’s analysis did not hinge on
whether Congress was acting within its Commerce
or Spending or Compact Powers, all of which are
Article I powers. Rather, the validity of a
purported waiver turns on whether the waiver is
conditioned on the state’s truly voluntary
acceptance of a federal "gratuity." Accord Public
Serv. Comm’n, 2000 WL 783382, at *7 ("[F]or a
constructive waiver of sovereign immunity to be
valid under College Savings Bank, it must be
altogether voluntary and not forced from a state
by Congress."). The significant commonality
between Dole and Petty is not that each involved
a power other than the Commerce Power; the key in
those cases was that Congress had the prerogative
to bestow a gratuity and that, by accepting the
gratuity, the states agreed to undertake certain
actions that Congress could not otherwise have
required them to take.

  It is clear that Congress, in exercising its
Commerce Power, could determine that all
regulation of the telecommunications industry
ought to be entrusted to the federal government.
See F.E.R.C. v. Mississippi, 456 U.S. 742, 764
(1982) ("[T]he commerce power permits Congress to
pre-empt the States entirely in the regulation of
private utilities."); Public Serv. Comm’n, 2000
WL 783382, at *8. And with the 1996
Telecommunications Act, we believe it equally
clear that Congress did take over some aspects of
the telecommunications industry. See AT&T Corp.,
525 U.S. at 378-79 n.6 (stating that, as to those
aspects addressed by the 1996 Telecommunications
Act, Congress has "unquestionably" taken the
regulation of local telecommunications
competition away from the states); Public Serv.
Comm’n, 2000 WL 783382, at *8. Although Congress
cannot abrogate state sovereign immunity by
exercising its Article I powers, see Seminole
Tribe, 517 U.S. at 72-73, and cannot "commandeer"
state regulatory agencies with legislation
forcing them to regulate on behalf of Congress,
see Printz v. United States, 521 U.S. 898, 935
(1997); New York v. United States, 505 U.S. 144,
168 (1992), these limitations on congressional
power do not prohibit Congress from obtaining a
state’s voluntary consent to federal
jurisdiction. With the 1996 Telecommunications
Act, Congress has created a complex federal
regulatory scheme for many aspects of the
telecommunications industry. One component of
that scheme is the invitation from Congress to
the states to participate in the federal
regulation of interconnection agreements and
other aspects of the local telephone market.
Congress certainly had the power to take up the
regulation of these areas on its own, and it
certainly can invite the states to act on its
behalf in carrying out those regulatory
functions.

  After the 1996 Telecommunications Act, the
regulation of interconnection agreements and the
approval of SGATs are no longer, in the terms
employed by the Supreme Court in College Savings,
"otherwise permissible activit[ies]" for the
states. 527 U.S. at 687; cf. Public Serv. Comm’n,
2000 WL 783382, at *8 ("[W]ith the passage of the
1996 Act, Congress essentially transformed the
regulation of local phone service from an
otherwise permissible state activity into a
federal gratuity."). Congress, exercising its
authority to regulate commerce has precluded all
other regulation except on its terms. Unlike the
situation in Parden and in College Savings, the
states are not merely acting in an area regulated
by Congress; they are now voluntarily regulating
on behalf of Congress./8 Unlike the situation in
Parden, in which Alabama exercised its sovereign
authority to operate a railroad, the state
commissions have conducted arbitrations for
interconnection agreements, have approved and
enforced those agreements, and have acted on an
SGAT under a federal grant of power. Their
authority to act was derived from provisions of
the Act and not from their own sovereign
authority.

  The commissions submit that the waivers in our
cases cannot be likened to the kind of waiver
obtained by Congress in the exercise of its
Spending Power. This is so, the commissions tell
us, because with Spending Clause waivers the
states effectively enter into a "contract" with
Congress--in exchange for the federal funding,
the state agrees to the terms offered by
Congress. We think that the commissions’ analogy,
however, tends to support, rather than weaken,
our conclusion. The state commissions have
entered into the same kind of exchange with
Congress that takes place when Congress offers
federal funds conditioned on a state’s acceptance
of the federal terms./9 The only difference
between the classic example of a Spending Clause
gratuity of federal funds and the waivers in our
cases is that, with the 1996 Telecommunications
Act, Congress has offered the states, not federal
funds, but a role as what the carriers have
called a "deputized" federal regulator. In
exchange for this grant of regulatory power,
Congress has required the states to agree to
submit to federal jurisdiction to review their
actions. In Dole, the gratuity was money; the
condition was a higher drinking age. Here, the
gratuity is federal regulatory power; the
condition is waiver of the state’s immunity.
Having accepted the regulatory power offered by
Congress, Illinois and Wisconsin now must accept
the condition that was attached to that grant of
power. Cf. Board of Educ. of Oak Park v. Kelly
E., 207 F.3d 931, 935 (7th Cir. 2000) (noting
that "[o]ne string attached to money under the
IDEA is submitting to suit in federal court" and
holding that "having accepted the money, [states]
must litigate in federal court"), petition for
cert. filed, 69 U.S.L.W. 3001 (U.S. June 16,
2000) (No. 99-2027)./10

  We believe that College Savings does not alter
the principle that states may waive their
immunity by accepting a benefit from Congress
that has conditions attached to that
acceptance./11 Congress could--and did--take
over regulation of a part of the
telecommunications industry in accordance with
its Commerce Power. Such regulation is no longer
an "otherwise permissible activity" for states.
Congress may choose to "give back" to states some
of the regulatory power Congress has taken away,
and Congress may attach conditions to the return
of that power. Cf. College Savings, 527 U.S. at
686-87 (explaining that, when Congress bestows a
gift or gratutity, it may attach conditions to a
state’s acceptance of that gift or gratuity).
States are free to accept or reject the terms
Congress has offered the states if they want a
continued role in regulating this segment of the
local telephone service market./12

D.   Ex parte Young
1.

  As an independent basis for decision, we also
believe that the Eleventh Amendment does not bar
the carriers from pursuing injunctive relief
against the individual members of the state
commissions. Under the Ex parte Young doctrine, a
private party may sue individual state officials
in federal court to obtain prospective relief for
an ongoing violation of federal law. See Ex parte
Young, 209 U.S. at 159-60; Idaho v. Coeur d’Alene
Tribe, 521 U.S. 261, 294 (1997) (O’Connor, J.,
concurring); id. at 298-99 (Souter, J.,
dissenting) ("The plaintiff must allege that the
officers are acting in violation of federal law,
and must seek prospective relief to address an
ongoing violation, not compensation or other
retrospective relief for violations past."
(internal citation and footnote omitted)); Marie
O., 131 F.3d at 615. Under this doctrine, federal
courts are enabled to "vindicate federal rights
and hold state officials responsible to ’the
supreme authority of the United States.’"
Pennhurst II, 465 U.S. at 105 (quoting Ex parte
Young, 209 U.S. at 160)./13 The Supreme Court’s
decisions in Alden, College Savings and Florida
Prepaid have not called the Ex parte Young
doctrine into question. Indeed, the Court in
Alden reaffirmed the doctrine’s role in the
sovereign immunity context. See Alden v. Maine,
527 U.S. 706, 748 (1999) (calling the Ex parte
Young doctrine an "essential" part of the Court’s
sovereign immunity jurisprudence).

   We agree with the Sixth and Tenth Circuits that
these suits are "straightforward" Ex parte Young
cases. Public Serv. Comm’n, 2000 WL 783382, at *9
(holding that state commissioners may be sued
under the Ex parte Young doctrine for their
approval and enforcement of a sec. 252
interconnection agreement); Michigan Bell Tel.
Co., 202 F.3d at 867 (same). The carriers seek
injunctive relief from what they allege to be
determinations made by the commissioners that are
contrary to the 1996 Telecommunications Act. The
commissioners argue that, if any violations
occurred, they occurred in the past, and that
therefore the Ex parte Young doctrine should not
apply. We cannot accept this argument. The
challenged determinations are still in place, and
the carriers seek to have the commissioners
conform their future actions, including their
continuing enforcement of the challenged
determinations, with federal law. See Entergy,
Arkansas, Inc. v. Nebraska, 210 F.3d 887, 898
(8th Cir. 2000) ("While the relief granted under
Ex parte Young may only be prospective, proof for
the claim necessitating relief can be based on
historical facts, and most often will be."). Such
relief is precisely the type contemplated by the
Ex parte Young doctrine. Thus, the carriers’
suits fit squarely within the traditional
framework of Ex parte Young.
2.

  The commissioners submit that the Supreme
Court’s decision in Seminole Tribe renders the Ex
parte Young doctrine inapplicable to the cases
before us. In Seminole Tribe, the Supreme Court
admonished that "where Congress has prescribed a
detailed remedial scheme for the enforcement
against a State of a statutorily created right, a
court should hesitate before casting aside those
limitations and permitting an action against a
state officer based upon Ex parte Young."
Seminole Tribe, 517 U.S. at 74. According to the
commissioners, Congress has created in sec. 252 a
"detailed remedial scheme" that is on par with
the remedial scheme at issue in Seminole Tribe.
Consequently, the commissioners argue, an Ex
parte Young suit against them would run afoul of
the Court’s decision in Seminole Tribe.

  We cannot accept the commissioners’
characterization of the available remedies under
the 1996 Telecommunications Act and,
consequently, find their analogy to the situation
in Seminole Tribe to be flawed. Section 252 of
the Act does not create a "detailed remedial
scheme" that manifests Congress’ intent to limit
the scope of statutory remedies available to
parties aggrieved by the commissioners’
interconnection determinations. The enforcement
provision implicated in our cases merely states:
"In any case in which a State commission makes a
determination under this section, any party
aggrieved by such determination may bring an
action in an appropriate Federal district court
to determine whether the agreement or statement
meets the requirements of section 251 [and
section 252]." 47 U.S.C. sec. 252(e)(6) (Supp. II
1996). The power of the court under subsection
252(e)(6) stands in stark contrast with the
court’s powers to impose what the Supreme Court
called a "modest set of sanctions" under the
statute at issue in Seminole Tribe. Seminole
Tribe, 517 U.S. at 75.

  In Seminole Tribe, the Court addressed the
judicial enforcement scheme created by the Indian
Gaming Regulatory Act ("the IGRA"). Congress had
passed the IGRA in 1988 in order to provide a
statutory framework for the operation and
regulation of tribal gaming operations. Under the
IGRA, Indian tribes could enter into the most
heavily regulated class of gaming (i.e., slot
machines, casino games, banking card games, dog
racing, and lotteries) only after certain
conditions had been met. One of those conditions
imposed by the IGRA was that the tribe’s
operations had to conform to a valid compact
between the tribe and the state in which the
gaming operations were located. See 25 U.S.C.
sec. 2710(d)(1).

  The IGRA set forth the process by which tribes
and states were to enter into these compacts.
First, a tribe was required to request that the
state enter into compact negotiations. Once a
request had been made, the state was obligated
under the IGRA to "negotiate with the Indian
tribe in good faith" to enter into a compact. Id.
sec. 2710(d)(3)(A). Still other provisions of the
IGRA made the state’s obligation to negotiate in
good faith judicially enforceable. See id. sec.
2710(d)(7)(A)(i) and (B)(i). Other provisions set
forth what the Supreme Court described as "an
elaborate remedial scheme" designed to ensure
that a Tribal-State compact would be formed. See
id. sec. 2710(d)(7)(B)(ii)-(vii)./14 Under this
scheme, if the district court determined that the
state had failed to negotiate in good faith, the
IGRA only allowed the court to issue an order
mandating that the tribe and the state enter into
a compact within 60 days. See Seminole Tribe, 517
U.S. at 74. If the parties disregarded this
order, the only recourse available to the
district court was to order each party to submit
a proposed compact to a mediator, who would then
choose one. See id. at 74. And if the state
refused to accept the compact chosen by the
mediator, the IGRA provided that the mediator was
to inform the U.S. Secretary of the Interior, who
would then issue regulations to govern the
tribe’s gaming operations. See id. at 74-75.

  Unlike the IGRA, in which "Congress chose to
impose upon the State a liability that is
significantly more limited than would be the
liability imposed upon the state officer under Ex
parte Young," Seminole Tribe, 517 U.S. at 75-76,
Congress has not limited the court’s remedial
power under subsection 252(e)(6) of the 1996
Telecommunications Act. We reach this conclusion
guided by our decision in Marie O. v. Edgar, 131
F.3d 610 (7th Cir. 1997). In Marie O., a case
decided in the wake of Seminole Tribe, we held
that the Individuals with Disabilities Education
Act ("the IDEA") did not contain an "explicit
remedial scheme" that would prevent an Ex parte
Young suit. Marie O., 131 F.3d at 616. The IDEA
section involved in that case empowered a
district court to grant "’such relief as it
determines is appropriate’" to ensure compliance
with certain provisions of the IDEA. Id. (quoting
20 U.S.C. sec. 1480(1)). Importantly, we noted
that the remedial measures available under the
IDEA did not expressly limit the role of the
district court in redressing complaints with
regard to the IDEA. Similarly, subsection
252(e)(6) does not limit the role or the power of
the district court. Quite the contrary,
subsection 252(e)(6) is silent as to how a
district court would enforce its ruling under
that section. Thus, we hold that Seminole Tribe
does not preclude an Ex parte Young suit against
the state commissioners here.

3.
  Nor can we accept the contention that the
Supreme Court’s decision in Coeur d’Alene Tribe
bars Ex parte Young suits by the carriers against
the commissioners. The commissioners maintain
that Ex parte Young suits against them would
trammel "special sovereignty interests" of their
states and, thus, should be precluded by Coeur
d’Alene Tribe.

  In Coeur d’Alene Tribe, a majority of the Court
held that a federal court cannot grant
prospective equitable relief under the Ex parte
Young doctrine when that relief would implicate
"special sovereignty interests" of the state and
would be the "functional equivalent" to a form of
legal relief otherwise barred by the Eleventh
Amendment. Coeur d’Alene Tribe, 521 U.S. at 281-
82. More precisely, the Court held that the Ex
parte Young doctrine was inapplicable to the
"particular and special circumstances" present in
that case. Id. at 287. A majority of the Court
held that the lawsuit against Idaho could not
proceed under the Ex parte Young doctrine because
the suit, in which the Coeur d’Alene Tribe sought
to have the federal court divest the state of its
ownership of land under Lake Coeur d’Alene, in
essence would affect "Idaho’s sovereign interest
in its lands and waters" to a degree "fully as
intrusive as almost any conceivable retroactive
levy upon funds in its Treasury." Id. at 287; see
also id. at 296 (O’Connor, J., concurring)
(agreeing that the Ex parte Young doctrine should
not be extended to reach the Tribe’s claim "to
quiet title to sovereign lands" because such a
lawsuit is really a suit against the state). The
Court explained that the Tribe’s lawsuit could
not proceed under the Ex parte Young doctrine
because the suit was the "functional equivalent
of a quiet title action which implicates special
sovereignty interests." Id. at 281.

  Illinois’ and Wisconsin’s interests in the
regulation of telecommunications providers in
their respective states cannot be equated with
Idaho’s interest in its land, which the Court in
Coeur d’Alene Tribe found so fundamental. In the
wake of the 1996 Telecommunications Act, any
"sovereign" interest Illinois and Wisconsin may
have in regulating interconnection agreements and
SGATs is derived solely from the regulatory role
Congress has bestowed upon the states. Thus, the
suits against the state commissioners to require
compliance with the 1996 Telecommunications Act
do not strike at core functions or fundamental
powers of either Illinois or Wisconsin./15
Therefore, the availability of an Ex parte Young
suit in our cases is not affected by the special
limitation recognized by a majority of the Court
in Coeur d’Alene Tribe. Accord Public Serv.
Comm’n, 2000 WL 783382, at *9 n.8.


Conclusion

  We hold that, by deciding to exercise the power
delegated to them by the Act, the states agreed
to the conditions attached to that grant of power
and thereby waived their Eleventh Amendment
immunity from suit in federal court. The federal
regulatory scheme set forth in sec.sec. 251 and
252 of the Act bestowed upon states a "gratuity."
Acceptance of that federal invitation to share in
the regulation of the telecommunications industry
is conditioned on a waiver of Eleventh Amendment
immunity. A state’s decision to exercise that
regulatory authority--which would otherwise lie
with the federal government--necessarily
constitutes a waiver of its immunity from suit in
federal court.

  We also hold that, under Ex parte Young, the
Eleventh Amendment does not bar the carriers’
lawsuits against the individual commissioners.
Because the carriers have alleged ongoing
violations of federal law and because they seek
prospective equitable relief, their lawsuits fit
squarely within the traditional framework of Ex
parte Young. Moreover, the more recent
limitations on Ex parte Young suits that the
Supreme Court announced in Seminole Tribe and
Coeur d’Alene Tribe are not applicable here. The
1996 Telecommunications Act does not contain a
specific remedial scheme, and these lawsuits do
not implicate special sovereignty interests.

  Accordingly, we affirm the judgment of the
district court in 98-2127. We reverse the
judgment of the district court in 99-2805, 99-
2806, 99-2811, 99-2873, and 99-2992, and we
remand these cases to the district court for
further proceedings consistent with this opinion.

98-2127 AFFIRMED;
99-2805, 99-2806, 99-2811,
99-2873 & 99-2992 REVERSED and REMANDED




/1 Again, both MCI Telecommunications Corp. and MCI
Metro Access Transmission Services, Inc.

/2 A "Bell operating company" is one of the local
"Baby Bells" split off from AT&T in the
divestiture decree. See Peter W. Huber et al.,
Federal Telecommunications Law 1362 (2d ed.
1999); see also 47 U.S.C. sec. 153(4) (Supp. II
1996) (listing the individual Bell operating
companies).
/3 Ameritech Illinois also filed a separate action
against the ICC Commissioners, challenging their
approval of two negotiated interconnection
agreements between Ameritech Illinois and other
telecommunications carriers. An appeal in that
case, 98-2256, originally was part of this
appeal. The agreements at issue in 98-2256 were
made through private negotiations without
mediation or arbitration by the ICC. During the
pendency of the appeal in 98-2256, however,
Ameritech Illinois filed a motion requesting that
we remand 98-2256 to the district court so that
it may be dismissed voluntarily with prejudice.
We have granted that motion and therefore need
not address the applicability of the Eleventh
Amendment to litigation involving such privately
negotiated agreements.

    We also have remanded to the district
court a different case, 98-
2566, which was originally part of this
consolidated appeal, so that it too may be
dismissed voluntarily.
/4 Three new entrants sought to intervene in
Ameritech Wisconsin’s suit over the SGAT, but the
district court denied the motions because it
concluded that the PSCW would adequately
represent the prospective intervenors’ interests.
The district court’s denial of the motions to
intervene is not before us on appeal.

/5 In its second decision, the district court also
held that, in light of this circuit’s decision in
Illinois Bell Telephone Co. v. Worldcom
Technologies, Inc., 179 F.3d 566 (7th Cir. 1999),
the PSCW and the PSCW Commissioners were
necessary parties to these suits. Because the
PSCW and the PSCW Commissioners were necessary
parties and because the district court had
concluded that they were entitled to immunity,
the district court held that the cases had to be
dismissed in their entirety for failure to join
necessary parties. We hold today, however, that
the PSCW and the PSCW Commissioners may be sued
in federal court; thus, we need not address the
Rule 19(b) arguments raised by the parties.

/6 See also Puerto Rico Tel. Co. v.
Telecommunications Regulatory Bd., 189 F.3d 1, 10
(1st Cir. 1999) (assuming, without deciding, that
state commission interpretations and enforcements
of agreements are subject to federal court review
under subsection 252(e)(6)).

/7 See 15 U.S.C. sec.sec. 1122, 1125(a) (as amended
by the Trademark Remedy Clarification Act, Pub.
L. No. 102-542, sec. 3(b)-(c), 106 Stat. 3567,
3567-68 (1992)).
/8 See also Public Serv. Comm’n, 2000 WL 783382, at
*8 ("47 U.S.C.A. sec. 252 invites states to
participate in the federal government’s
regulation of local telephone service."); Peter
W. Huber et al., Federal Telecommunications Law
sec. 3.3.4, at 227 (2d ed. 1999) ("As a backdrop
to its primary reliance on privately negotiated
agreements, however, Congress enlisted the aid of
state public utility commissions to ensure that
local competition was implemented fairly and with
due regard to the local conditions and the
particular historical circumstances of local
regulation under the prior regime.").

/9 Cf. Litman v. George Mason Univ., 186 F.3d 544,
555 (4th Cir. 1999) (holding that a public
university had waived its immunity by accepting
Title IX funding and thus agreeing to the
condition of waiver Congress had attached to
those funds), cert. denied, 120 S. Ct. 1220
(2000); In re Innes, 184 F.3d 1275, 1284 (10th
Cir. 1999) (holding that a state had waived
voluntarily its immunity by agreeing to
participate in the federal Perkins Loan Program,
a federal program in which states are required to
undertake certain actions in federal bankruptcy
court proceedings), cert. denied, 120 S. Ct. 1530
(2000).

/10 It has been suggested to us that the
commissioners do not have the power to waive the
immunity of their respective states; that only
the state legislatures can waive their states’
Eleventh Amendment immunity. We believe, however,
that the waivers of immunity have come from the
states themselves (and not the commissions). It
is the states that have authorized the
commissions to regulate the telecommunications
industry, see Ill. Comp. Stat. 5/2-101; Wis. Stat. sec.
196.02, and, despite the clear warning from
Congress in subsection 252(e)(6) of the 1996
Telecommunications Act, neither Illinois nor
Wisconsin have taken any steps to forbid their
respective commissions from exercising the
authority granted to them by Congress. Indeed,
the states have agreed unmistakably and
affirmatively to waive their immunity. By
accepting the grant of regulatory power offered
by Congress, and by allowing the state
commissions to exercise that power, Illinois and
Wisconsin cannot contend now that they are not
bound by the conditions attached to that grant of
power.

/11 At one time, privately negotiated agreements were
at issue in a case before us. But as we have
explained, supra note 3, we have granted
Ameritech Illinois’ motion to remand 98-2256 to
the district court for a voluntary dismissal with
prejudice. We therefore need not decide--and
reserve for another day--whether a state
commission might have no true choice but to
involve itself in the review process of a
privately negotiated interconnection agreement in
order to avoid the consequence of having the
agreement be "deemed approved" under 47 U.S.C.
sec. 252(e)(4) (Supp. II 1996). Cf. College
Savings, 527 U.S. at 687 (stating that, in some
instances, the inducement offered by Congress
might be so coercive that the voluntariness of
the waiver is destroyed).

/12 We are not unmindful that our colleagues in the
Sixth Circuit have expressed the view that, in
light of the Supreme Court’s decisions in College
Savings and Florida Prepaid, "it is virtually
certain that a state utility commission’s
decision to accept regulatory authority under the
[1996 Telecommunications Act] cannot legitimately
be construed as a valid waiver of sovereign
immunity." GTE North, Inc. v. Strand, 209 F.3d
909, 922 n.6 (6th Cir. 2000); see also Michigan
Bell Tel. Co. v. Climax Tel. Co., 202 F.3d 862,
867 & n.2 (6th Cir. 2000) (declining to find that
the state had waived its immunity by regulating
under the Act and instead relying on the Ex parte
Young doctrine to allow suits against individual
state commissioners), petition for cert. filed,
68 U.S.L.W. 3742 (U.S. May 15, 2000) (No. 99-
1878). As we have already indicated, however, we
believe that the Court of Appeals for the Tenth
Circuit has expressed the correct view, and we
agree with its analysis. See Public Serv. Comm’n,
2000 WL 783382, at *8.

/13 The Ex parte Young doctrine may not be used to
enjoin violations of state law. See Pennhurst II,
465 U.S. at 106.

/14 To illustrate the elaborate nature of this
remedial scheme, we shall set out the Supreme
Court’s full description of it:

Sections 2710(d)(7)(B)(ii)-(vii) describe
an elaborate remedial scheme
designed to ensure the formation of a
Tribal-State compact. A tribe that brings an
action under sec. 2710(d)(7)(A)(i) must show that
no Tribal-State compact has been entered and that
the State failed to respond in good faith to the
tribe’s request to negotiate; at that point, the
burden then shifts to the State to prove that it
did in fact negotiate in good faith. sec.
2710(d)(7)(B)(ii). If the district court
concludes that the State has failed to negotiate
in good faith toward the formation of a
Tribal-State compact, then it "shall order the
State and Indian Tribe to conclude such a compact
within a 60-day period." sec. 2710(d)(7)(B)(iii).
If no compact has been concluded 60 days after
the court’s order, then "the Indian tribe and the
State shall each submit to a mediator appointed
by the court a proposed compact that represents
their last best offer for a compact." sec.
2710(d)(7) (B)(iv). The mediator chooses from
between the two proposed compacts the one "which
best comports with the terms of the Act and any
other applicable Federal law and with the
findings and order of the court," ibid., and
submits it to the State and the Indian tribe,
sec. 2710(d)(7)(B)(v). If the State consents to
the proposed compact within 60 days of its
submission by the mediator, then the proposed
compact is "treated as a Tribal-State compact
entered into under paragraph (3)." sec.
2710(d)(7)(B)(vi). If, however, the State does
not consent within that 60-day period, then the
Act provides that the mediator "shall notify the
Secretary of the Interior" and that the Secretary
"shall prescribe procedures under which class III
gaming may be conducted on the Indian lands over
which the Indian tribe has jurisdiction." sec.
2710(d) (7)(B)(vii).

Seminole Tribe, 517 U.S. at 50.

/15 Compare J.B. ex rel. Hart v. Valdez, 186 F.3d
1280, 1287 (10th Cir. 1999) (holding that "[a]
state’s interest in administering a welfare
program at least partially funded by the federal
government is not such a core sovereign interest
as to preclude the application of Ex parte
Young"), and Branson Sch. Dist. RE-82 v. Romer,
161 F.3d 619, 632-33 (10th Cir. 1998) (holding
that an action, which was "the functional
equivalent of a breach of trust action" against
the state for planned changes to its management
of public lands, was within the scope of the Ex
parte Young doctrine because the relief sought
would not alter the nature of the state’s
ownership in the land but would affect only the
manner in which the state managed the lands at
issue), cert. denied, 119 S. Ct. 1461 (1999),
with MacDonald v. Village of Northport, 164 F.3d
964, 972 (6th Cir. 1999) (holding that a state’s
"great interest in maintaining access to the
Great Lakes" was a "special sovereignty interest"
that precluded an Ex parte Young suit), and ANR
Pipeline Co. v. Lafaver, 150 F.3d 1178, 1193
(10th Cir. 1998) (holding that a state’s power to
tax is akin to the "special sovereignty
interests" identified in Coeur d’Alene Tribe),
cert. denied, 525 U.S. 1122 (1999).
