                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 07-2066


DPI TELECONNECT LLC,

                Plaintiff – Appellant,

          v.

ROBERT V. OWENS, JR.; SAM J. ERVIN, IV; LORINZO L. JOYNER;
JAMES Y. KERR, II; HOWARD N. LEE; WILLIAM T. CULPEPPER,
III; EDWARD S. FINLEY, JR., Chairman, in their official
capacities as Commissioners of the North Carolina Utilities
Commission; BELLSOUTH TELECOMMUNICATIONS, INCORPORATED,

                Defendants – Appellees,

          and

JO ANNE SANFORD; ROBERT E. KROGER,

                Defendants.



                              No. 09-1617


DPI TELECONNECT LLC,

                Plaintiff – Appellant,

          v.

ROBERT V. OWENS, JR.; SAM J. ERVIN, IV; LORINZO L. JOYNER;
JAMES Y. KERR, II; HOWARD N. LEE; WILLIAM T. CULPEPPER,
III; EDWARD S. FINLEY, JR., Chairman, in their official
capacities as Commissioners of the North Carolina Utilities
Commission; BELLSOUTH TELECOMMUNICATIONS, INCORPORATED,

                Defendants – Appellees,
           and

JO ANNE SANFORD; ROBERT E. KROGER,

                 Defendants.



Appeals from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
District Judge. (5:06-cv-00463-D)


Argued:   October 28, 2010            Decided:   February 3, 2011


Before NIEMEYER and GREGORY, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.


Affirmed by unpublished opinion.       Judge Gregory wrote the
opinion, in which Judge Niemeyer and Senior Judge Keith joined.


ARGUED: Anton Christopher Malish, MALISH & COWAN, LLP, Austin,
Texas, for Appellant.   Matthew Patrick McGuire, ALSTON & BIRD,
LLP, Raleigh, North Carolina; Karen Elizabeth Long, Carrboro,
North Carolina, for Appellees. ON BRIEF: David S. Wisz, BAILEY
& DIXON, LLP, Raleigh, North Carolina, for Appellant.       Roy
Cooper,   North  Carolina   Attorney   General,  Raleigh, North
Carolina, for Appellees Utilities Commissioners. Anitra Goodman
Royster, ALSTON & BIRD, LLP, Raleigh, North Carolina, for
Appellee BellSouth Telecommunications, Incorporated.


Unpublished opinions are not binding precedent in this circuit.




                                2
GREGORY, Circuit Judge:

       This    case    involves     a    dispute      over     promotional         credits

between        dPi      Teleconnect        LLC        (“dPi”)        and      BellSouth

Telecommunications,          Inc.   (“BellSouth”).             The    North    Carolina

Utilities      Commission      (“NCUC”)    dismissed         dPi’s     complaint       and

motion for reconsideration, and the district court granted the

NCUC’s and BellSouth’s motions for summary judgment.                          We affirm

the district court because there is substantial support in the

record that dPi was not entitled to promotional credits.



                                          I.

       The Telecommunications Act of 1996 (“the Act”) regulates

Incumbent LECs (“ILECs”) and Competitive LECs (“CLECs”).                                  47

U.S.C. § 251 et seq.           The Act was “designed to enable new Local

Exchange Carriers [] to enter local telephone markets with ease

and to reduce monopoly control of these markets and increase

competition          among    providers.”             Verizon         Md.     v.      Core

Communications,        __    F.3d   __   (4th    Cir.    2010),       slip    op.    at    1

(citations      omitted)      (unpublished).             The    Act      requires,        in

pertinent part, that ILECs “offer for resale at wholesale rates

any   telecommunications        services       that    the     carrier      provides      at

retail to subscribers who are not telecommunications carriers.”

47    U.S.C.   § 251(c)(4).         ILECs’      resale    obligations         extend      to




                                           3
promotional offers which last for more than 90 days.                           47 C.F.R.

§ 51.613.

      The Act employs InterConnection Agreements (“ICAs” or “the

agreement”) as its primary enforcement vehicle.                             Verizon Md.,

Inc. v. Global Naps, 377 F.3d 355, 364 (4th Cir. 2004).                             “When

an   agreement     . . .   is    submitted         to   the   state    commission      for

approval, the commission may reject it only if it discriminates

against a carrier not a party, or it is not consistent with ‘the

public interest, convenience, and necessity.’”                        Id.    And “[o]nce

the agreement is approved, the 1996 Act requires the parties to

abide by its terms.”        Id.

      Here,    BellSouth        and    dPi       functioned    as     ILEC    and   CLEC,

respectively, and entered into an ICA so dPi could resell retail

telephone     services     on    a    prepaid      basis.      The    ICA    stated,    in

pertinent part, “[w]here available for resale, promotions will

be made available only to End Users who would have qualified for

the promotion had it been provided by BellSouth directly.”                           From

January     2004    through          November      2005,      BellSouth      offered    a

promotion known as the Line Connection Charge Waiver (“LCCW”).

The promotion read as follows:

      Planned Promotion
      The   Line  Connection   Charge   Waiver  promotion  is
      extended to December 26, 2005.     Services included in
      this promotion are:
         • BellSouth® Complete Choice® plan
         • BellSouth® PreferredPackSM plan



                                             4
       •   BellSouth® basic service and two (2) customer
           calling (or Touchstar® service) local features

     Promotion Specifics
     Specific features of this promotion are as follows:
     Waived line connection charge to reacquisition or
     winover residential customers who currently are not
     using BellSouth for local service and who purchase
     BellSouth®   Complete    Choice®  service,   BellSouth®
     PreferredPackSM service, or basic service and two (2)
     features will be waived.

    Restrictions/Eligibility Requirements:
    . . .
    The customer must switch their local service to
    BellSouth and purchase any one of the following:
    BellSouth®    Complete    Choice®   plan,  BellSouth®
    PreferredPackSM plan, or BellSouth® basic service and
    two (2) custom calling (or Touchstar® service) local
    features.

    BellSouth’s     North    Carolina       General    Subscriber      Service

Tariff (“the Tariff”) further describes “Touchstar® service [a]s

a group of central office call management features offered in

addition   to   basic   telephone   services.”         The    Tariff   defines

“features” to include twelve functionalities:                (1) call return;

(2) repeat dialing; (3) call tracing; (4) call selector; (5)

preferred call forwarding; (6) call block; (7) basic caller ID;

(8) deluxe caller ID; (9) anonymous call rejection; (10) calling

name/number     delivery    blocking    –     per     line;    (11)    calling

name/number delivery blocking – per call; and (12) busy connect.

In another section on rates, the Tariff describes “denial of per

use” call return and call tracing, refers to them as “features”




                                    5
in    a    footnote,       and     lists       their       respective       Universal       Service

Order Codes (USOCs).

          dPi proceeded to purchase basic service from BellSouth and

instructed BellSouth to block certain features (“blocks”) that

customers         could    use     on     a    charge-per-use          basis.        dPi    did    so

because it sold pre-paid phone services to customers who were

not creditworthy, and it might have trouble recouping payment

for       bills    after     the    fact       for       charge-per-use        features.          dPi

specifically asked BellSouth to block call return (known by its

USOC, “BCR”), repeat dialing (“BRD”), and call tracing (“HBG”),

and BellSouth agreed.               dPi resold the basic service and ‘blocks’

to customers as a single pre-paid package.

          dPi then applied to BellSouth for promotional credits under

the       LCCW.      BellSouth          denied       the     applications         because       dPi’s

customers          had    not    purchased           basic     service      and     two    or    more

features          other   than     ‘blocks.’              Next,    dPi      filed   a     complaint

before       the     NCUC,       alleging        it      was    entitled       to    promotional

credits.           Before the NCUC, BellSouth’s director of regulatory

organization, Ms. Pam Tipton, testified that only paid features

qualify for LCCW and that ‘blocks’ are not eligible for such

credits.           The    NCUC     decided       that       they     were    “not    required      to

analyze       and    decide        this       case    based     on    the    language       of    the

promotion”          because      “BellSouth           and    dPi     jointly      agreed    [that]

. . . ‘promotions will be made available only to End Users who


                                                     6
would have qualified for the promotion had it been provided by

BellSouth    directly.’”           Instead,     the    NCUC    found      Ms.   Tipton’s

testimony    was     “dispositive”       and    “uncontested        by    dPi    at   the

hearing and unrebutted in its post hearing brief.”

      The NCUC dismissed dPi’s complaint, reasoning that “[u]nder

the clear terms of the interconnection agreement and the facts

of this case, dPi end users who only order blocking features are

not   eligible       for     the     credits     because       similarly        situated

BellSouth End Users are not entitled to such credits.”                          The NCUC

declined     to     construe       any   potentially          ambiguous     provisions

against the drafter (BellSouth) because dPi voluntarily agreed

to more specific terms in the ICA.                While the NCUC acknowledged

problems in BellSouth’s overall system for requesting promotion

credits, it suggested another type of proceeding would be a more

appropriate       forum      for     resolving        them.         dPi     moved     for

reconsideration, which the NCUC denied.

      dPi    next    filed     a    complaint     in    district       court     seeking

declaratory and injunctive relief from the NCUC’s order denying

its claims.       The court stressed the binding legal effect of the

parties’ ICA and concluded that there was substantial evidence

supporting    the     NCUC’s       interpretation      of     the   ICA,    given     Ms.

Tipton’s testimony and the clear terms of the ICA.                        The district

court granted BellSouth and NCUC’s motions for summary judgment,

and dPi appealed to our Court.


                                          7
       Then,    dPi   motioned   the   NCUC    to   reconsider       once   more     in

light of new evidence about Ms. Tipton’s credibility and data

about BellSouth’s use of waivers in Florida.                    The NCUC denied

the motion, finding that dPi’s arguments were “mere conjecture”

and that the “record is insufficient to prove by the greater

weight of the evidence that BellSouth granted any, let alone a

significant amount of, LCCW promotion waivers to the customers

in question or to prove that . . . Tipton provided evidence ‘now

known to be false.’”          Next, dPi filed a motion pursuant to Fed.

R. Civ. P. 60(b) before the district court, and meanwhile our

Court held       dPi’s   original    appeal    in   abeyance.        The    district

court denied that motion, “[i]n light of the NCUC’s findings and

the requirements of Rule 60(b). . . .”                dPi again appealed to

our Court, and we consolidated its two appeals.



                                        II.

       While we review de novo the NCUC’s interpretation of the

Act, we do not “sit as a super public utilities commission,” and

are “not free to substitute [our] judgment for the agency’s.

. . .”      GTE South, Inc., v. Morrison, 199 F.3d 733, 745-46 (4th

Cir.   1999)     (citations    omitted).       Instead,   we    “must       uphold   a

decision that has substantial support in the record as a whole

even   if    [we]     might   have   decided   differently      as    an    original

matter.”       Id. at 756 (citation omitted).


                                         8
      There is substantial support for the NCUC’s dismissal of

dPi’s complaint:       The ICA states that “promotions will be made

available only to End Users who would have qualified for the

promotion had it been provided by BellSouth directly.”                 The NCUC

heard unrebutted testimony that BellSouth’s own end users would

not have been entitled to the sorts of promotions for which dPi

applied.      Specifically, Ms. Tipton testified that BellSouth did

not count ‘blocks’ as features, since “[i]t really doesn’t make

any   sense    for   BellSouth    to   develop      a    promotion   to    entice

customers to buy additional service when the enticement only

applies to something that’s already free.”

      While    Ms.   Tipton’s    testimony   went       unrebutted   before   the

NCUC, dPi now seeks to undermine BellSouth’s interpretation by

attacking Ms. Tipton’s testimony as lacking “personal knowledge

of the situation.”       While Ms. Tipton stated that her testimony

was based in “part” on what colleagues had told her, she also

said she had reviewed all twenty-four months of promotion credit

claims, and “undertaken [her] own evaluation.”                Ms. Tipton also

added that she was “very familiar with” BellSouth’s discount

policy “prior to learning dPi’s filing of any complaints.”                    She

remarked, “[t]hat’s not something I had to learn.”                        That is

sufficient for the NCUC to admit Ms. Tipton’s testimony and for

us to consider it now.




                                       9
      Next, dPi marshals various pieces of data to try to show

BellSouth      engaged      in     a    practice        of      offering        promotional

discounts to other customers who purchased basic service and

asked BellSouth to ‘block’ features.                     The NCUC duly considered

Ms.   Tipton’s      testimony      that    the    data       did   not    and    could      not

explain the specific reasons why BellSouth had given waivers to

individual customers in other regions.                    The NCUC also noted that

“dPi, by its own admission, has done nothing more than review

the data and compile a set of numbers . . . . [or] attempt to

find even one order in which the LCCW waiver was granted to a

customer     that    it    contends       was    not    eligible         to   receive       the

promotion and [BellSouth] contends is not.”                          We cannot discern

more meaningful inferences from this data, let alone substantial

support for overturning the NCUC.

      Finally, dPi argues that it qualified for the LCCW under

the terms of the promotion itself.                 While the NCUC did not reach

this issue, the face of the promotion and Tariff bolster the

NCUC’s decision.          The LCCW refers to customers who purchase “two

(2) custom calling (or TouchStar service) local features,” and

the   Tariff     explicitly        defines       TouchStar         service      to    include

twelve     features.        Nowhere       does   this     definition          refer    to    an

ILEC’s decision to ‘block’ certain charge-per-use features.                                 Nor

are   we   swayed    by    dPi’s       contentions       that      ‘blocks’      constitute

features, even though they are free, because they have USOCs.


                                            10
The   promotion         refers    to       “purchase[d]”       features     --       not    the

costless     deactivation         of       charge-per-use       features.        Moreover,

there are thousands of USOCs for BellSouth’s functionalities, so

merely having a USOC does not alone make something a ‘feature.’

The Tariff’s passing reference to BCR and BCD as “features” in a

footnote does not change matters, since that same sentence goes

on to say ‘blocks’ “should not be included in the determination

of applicable Multi-Feature Discount Plan [] discounts. . . .”



                                              III.

      Last, there is the question of whether the district court

erred in denying dPi’s Rule 60(b) motion.                        In that motion, dPi

argued that it was entitled to relief from the earlier grant of

summary    judgment       because          new   evidence      allegedly    showed         that

BellSouth had awarded LCCW credit to customers who placed orders

identical to dPi’s.              The district court denied this motion on

April     16,    2009,     concluding            that    dPi   “failed     to    meet       the

threshold requirement of asserting a meritorious claim.”                                   Even

assuming dPi had met that burden, the court found that the new

evidence would not likely have led to a different outcome on the

merits.

      This      Court    reviews       a    district     court’s   denial       of    a    Rule

60(b) motion for abuse of discretion.                          Aikens v. Ingram, 612

F.3d 285, 290 (4th Cir. 2010).                          Here, however, we need not


                                                 11
conduct that analysis because dPi has abandoned its Rule 60(b)

claim.    dPi mentions the Rule 60(b) issue only once in its

opening brief, in its statement of facts, see Appellant’s Br.

21, and does not raise the issue at all in its reply brief.          At

no point does dPi offer any argument as to why the district

court erred in denying its Rule 60(b) motion.           Under Fourth

Circuit precedent, dPi’s failure to argue the issue amounts to a

waiver.   See Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6

(4th Cir. 1999) (“Failure to comply with the specific dictates

of [Fed. R. App. P. 28(a)(9)(A)] with respect to a particular

claim triggers abandonment of that claim on appeal”).



                                  IV.

     Accordingly,   we   affirm   the   district   court’s   grant   of

summary judgment in favor of the NCUC and BellSouth.

                                                              AFFIRMED




                                  12
