                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-1-2001

AT&T Comm of NJ Inc v. Verizon NJ Inc
Precedential or Non-Precedential:

Docket 00-2000




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Recommended Citation
"AT&T Comm of NJ Inc v. Verizon NJ Inc" (2001). 2001 Decisions. Paper 255.
http://digitalcommons.law.villanova.edu/thirdcircuit_2001/255


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Filed November 1, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2000

AT&T COMMUNICATIONS OF NEW JERSEY, INC.;

STATE OF NEW JERSEY DIVISION OF THE
RATEPAYER ADVOCATE,

       Plaintiff-Intervenor
       in district court

v.

*VERIZON NEW JERSEY, INC.;
THE NEW JERSEY BOARD OF PUBLIC UTILITIES,
an agency; HERBERT H. TATE; CARMEN J. ARMENTI,
in their capacities as Commissioners of the
Board of Public Utilities

State of New Jersey Division of the Ratepayer Advocate,

       Appellant

*(Amended-See Clerk's order dated December 19, 2000)

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. Civ. No.: 97-cv-05762)
District Court Judge: The Honorable Katherine S. Hayden

Argued June 21, 2001

Before: ROTH, AMBRO and FUENTES, Circuit Judge s

(Opinion Filed: November 1, 2001)
       Blossom A. Peretz, Esq. (argued)
       Ratepayer Advocate
       Division of the Ratepayer Advocate
       31 Clinton Street, 11th Floor
       P.O. Box 46005
       Newark, New Jersey 07101

        Attorney for Appellant
       New Jersey Division of the
       Ratepayer Advocate

       Frederic K. Becker, Esq. (argued)
       Wilentz, Goldman & Spitzer
       A Professional Corporation
       90 Woodbridge Center Drive
       P.O. Box 10
       Woodbridge, New Jersey 07095-0958

        Attorney for Appellee
       Verizon New Jersey, Inc.

       Eugene P. Provost, Deputy Attorney
        General (argued)
       John J. Farmer, Jr.
       Attorney General of New Jersey
       R.J. Hughes Justice Complex
       P.O. Box 112
       Trenton, New Jersey 08625

        Attorney for Appellees
       New Jersey Board of Public
       Utilities, Herbert H. Tate and
       Carmen J. Armenti in their
       capacities as Commissioners of the
       Board of Public Utilities

OPINION OF THE COURT

FUENTES, Circuit Judge:

This case arises out of a special proceeding conducted by
the New Jersey Board of Public Utilities ("Board") to
determine rates that would be generally available to
telecommunications carriers seeking to negotiate or

                                  2
arbitrate interconnection agreements under the
Telecommunications Act of 1996, Pub. L. No. 104-104, 110
Stat. 56 (1996) ("Telecommunications Act" or"1996 Act").
The Board decided to substitute these newly determined
rates for the previously arbitrated rates in an
interconnection agreement between AT&T Communications
of New Jersey ("AT&T") and Bell-Atlantic New Jersey ("Bell
Atlantic") (now known as Verizon New Jersey, Inc.
("Verizon")). AT&T brought suit challenging the Board's
substitution. Thereafter, the District Court entered an order
affirming the Board's decision to substitute rates but
reversing the Board on its methodology. On appeal, the New
Jersey Division of the Ratepayer Advocate ("the Advocate"),
which had been allowed to intervene in the proceedings,
contends that the District Court erred in holding that the
Board had the legal and statutory authority to substitute
its own rates for those set by arbitration. We will not reach
this issue, however, because we conclude that the Advocate
lacks constitutional standing to bring this appeal.

I.

A.

There are three main parties to this appeal. The
appellant, the Advocate, is an independent agency of the
State of New Jersey that is authorized to appear as a party
on behalf of ratepayers in all utility matters that are before
the Board. N.J.S.A. S 13:1D-1. On the opposing side, the
Board is an independent agency within the Executive
Branch of the New Jersey State government, N.J.S.A.
S 48:2-1, that has "general supervision and regulation of
and jurisdiction and control over all public utilities,"
N.J.S.A. S 48:2-13(a). The Board is a state public utility
commission. Federal law defines such entities as those
which, under state law, have regulatory jurisdiction over
intrastate operations of telecommunications carriers. 47
U.S.C. S 153(41). The other main appellee is Verizon, a
telecommunications carrier previously known as Bell
Atlantic.

To understand the somewhat complex procedural history
of this case, we will begin with the statutory framework that

                               3
Congress established to deregulate local telephone markets.
On February 8, 1996, Congress enacted the
Telecommunications Act of 1996. See Pub. L. No. 104-104,
110 Stat. 56 (1996). Section 101 of the Telecommunications
Act inserted sections 251 to 261 into Title 47 of the United
States Code. 110 Stat. at 61-80.

For much of the history of telecommunications, federal
law has carved out a regulatory role for state commissions
such as the Board. Prior to 1996, state commissions
pervasively regulated local telephone service and granted
exclusive franchises to incumbent local exchange carriers
("ILECs"), such as Bell Atlantic in New Jersey, to provide
service in particular areas.1See In re Implementation of the
Local Competition Provisions in the Telecommunications Act
of 1996, 11 FCC Rcd. 15,499, at P I.A.[hereinafter Local
Competition Order], amended on other grounds by 11 FCC
Rcd. 22,301 (1996).

The Telecommunications Act ended these legal barriers to
competition by providing that "[n]o State or local statute or
regulation, or other State or local legal requirement, may
prohibit or have the effect of prohibiting the ability of any
entity to provide any interstate or intrastate
telecommunications service." 47 U.S.C. S 253(a). With
respect to local telephone service, Congress sought to
create a transition mechanism from the pre-1996 ILEC area
monopolies to a system of "facilities-based competition,"
i.e., competition based on network facilities other than
those owned by the ILECs. See H.R. Conf. Rep. No. 104-
458, at 148 (1996), reprinted in 1996 U.S.C.C.A.N. 124,
124, 160. Network facilities are the physical infrastructure
through which telecommunications carriers deliver their
phone services.

Congress recognized that removing the legal protections
_________________________________________________________________

1. A local exchange carrier, or LEC, is "any person that is engaged in the
provision of telephone exchange service or exchange access." 47 U.S.C.
S 153(26). In laymen's terms, a LEC is a provider of local telephone
service, and an incumbent local exchange carrier, or ILEC, is the LEC
that, at the time of the adoption of the 1996 Act, provided exclusive
telephone exchange service in a particular area. In 1996, Bell Atlantic
was one of three ILECs in New Jersey.

                               4
traditionally afforded the ILECs would not, by itself,
accomplish "facilities-based competition." In particular,
Congress believed that the ILECs were gatekeepers of
telephone consumers in their respective areas, in part,
because of their control over local network facilities. See
H.R. Conf. Rep. No. 104-204, at 74, reprinted in 1996
U.S.C.C.A.N. 10, 39-40. Congress further believed that new
telecommunications carriers (a.k.a. "CLECs") 2 entering local
telephone markets could not effectively compete with the
ILECs if the new entrants were required to duplicate the
ILECs' networks before providing local service. See Local
Competition Order, at P I.C.10.

Because of these concerns, Congress imposed certain
affirmative duties on ILECs to advance the transition
toward facilities-based competition. Thus, among other
things, ILECs must: (1) permit requesting
telecommunications carriers to interconnect their facilities
with the ILEC's network, 47 U.S.C. S 251(c)(2); (2) lease
certain elements of their local network to carriers"on an
unbundled basis," that is, allow the use of individual pieces
of the network, id. S 251(c)(3); (3) sell carriers, at wholesale
rates, any telecommunications services that the ILEC
provides to its own customers at retail rates, in order to
allow those carriers to resell the services, id. S 251(c)(4);
and (4) allow carriers to construct facilities necessary for
interconnection on the ILEC's premises, id.S 251(c)(6).

The Telecommunications Act sets forth a procedure for
arriving at the prices that an ILEC may charge
telecommunications carriers for interconnection to the
ILEC's local network ("interconnection rates"), as well as for
the other services detailed above. Id. S 252. Thus, the 1996
Act invites carriers to "negotiate" binding interconnection
agreements with the ILEC. Id. S 252(a)(1). The 1996 Act
allows parties to interconnection negotiations to petition the
designated State Commission to mediate or to arbitrate any
unresolved issues. Id. SS 252(a)(2), (b). Furthermore, State
Commissions have certain powers with respect to arbitrated
_________________________________________________________________

2. A competitive local exchange carrier, or CLEC, is a LEC that is a new
entrant into the local telephone service market. AT&T is a CLEC in New
Jersey.

                               5
agreements, such as the power to accept or reject
agreements. See generally id. S 252.

B.

In New Jersey, the enactment of the Telecommunications
Act in February 1996 led to the commencement of several
proceedings. In December 1995, in anticipation of the
passage of the Telecommunications Act, the Board began
an investigation of the appropriate terms for local telephone
competition in New Jersey. On June 19, 1996, after the
enactment of the Telecommunications Act, the Board
instituted a proceeding to establish the terms and
conditions under which the local exchange market in New
Jersey should be opened to competition (the "Generic
Proceeding"). Thereafter, the Board stated that it would
review interconnection agreements reached through
arbitration, mediation, or negotiation in conformity with 47
U.S.C. SS 251 and 252. The Board also stated that the
Generic Proceeding would set rates, terms, and conditions
that would be generally available for parties to adopt freely
in negotiating and arbitrating interconnection agreements.

After the Generic Proceeding was underway, a number of
telecommunications carriers sought to avail themselves of
the provisions of the Telecommunications Act by
negotiating or arbitrating interconnection agreements with
ILECs. One of these carriers was AT&T, which, on March 1,
1996, asked Bell Atlantic to enter into an interconnection
agreement pursuant to 47 U.S.C. S 252(a). Following
negotiations with Bell Atlantic, AT&T petitioned the Board
on July 15, 1996 to arbitrate several unresolved issues. The
Board allowed the arbitration ("AT&T/Bell Atlantic
arbitration") to be conducted by outside experts.

On August 7, 1996, the Board noted the existence of
ongoing negotiations and arbitrations between carriers and
ILECs to set interconnection rates, but nevertheless decided
to continue with the Generic Proceeding, stating that "the
information developed in [the Generic Proceeding] may well
be relevant in assisting the Board to avoid disparate or
inconsistent decisions with respect to the issues in[the]
arbitrations." (App. at 38sa). A short while later, on August

                               6
15, 1996, the Board rejected the Advocate's request to
participate in the arbitrations, reasoning that the
arbitrations were two-party affairs and that the Advocate
would have the opportunity to comment in the Generic
Proceeding before the Board ruled on individual agreements
resulting from the pending negotiations and arbitrations.

The Board invited numerous parties to participate in the
Generic Proceeding. Testimony began on November 4, 1996,
and lasted for twenty days. The Advocate and
representatives of 11 segments of the telecommunications
industry attended the hearings. Fifteen parties submitted
briefs and four different cost studies were presented. At the
conclusion, the Board determined a number of rates and
conditions for interconnection and other services under the
Telecommunications Act (the "generic rates").

Four days after the beginning of testimony in the Generic
Proceeding, the AT&T/Bell Atlantic arbitration concluded
with the arbitrator's decision on November 8, 1996. The
arbitrator found that AT&T's cost analysis, a computer-
based model called the Hatfield Model Version 2.2 ("Hatfield
Model"), properly calculated the economic costs of
interconnection. Using a modified version of the Hatfield
model, the arbitrator established rates that would last for
the term of the AT&T/Bell Atlantic agreement.

The arbitrator rejected Bell Atlantic's argument that the
arbitrated rates should have only interim status pending
the Board's ongoing action to establish the generic rates
and terms. The AT&T/Bell Atlantic agreement was unique
in that, while all other negotiated and arbitrated
agreements between telecommunications carriers and Bell
Atlantic had used rates that would remain effective only
until the conclusion of the Generic Proceeding, the
AT&T/Bell Atlantic agreement incorporated arbitrated rates
that would last for the duration of the agreement without
regard to the Generic Proceeding.

Following the arbitrator's decision, Bell Atlantic
petitioned the Board to reverse the arbitrator. On July 17,
1997, at a public meeting, the Board ruled that the higher
generic rates would supercede the arbitrated rates in the
AT&T/Bell Atlantic interconnection agreement. On

                                7
September 9, 1997, the Board ordered AT&T to submit a
fully executed agreement reflecting the Board's decision to
use the generic rates. Under protest, AT&T complied. At a
public meeting on October 8, 1997, the Board approved the
AT&T/Bell Atlantic agreement incorporating the generic
rates.

On December 2, 1997, the Board issued a written order
memorializing the decisions that it had rendered at its
previous public meetings. In the memorandum, the Board
explained what it considered to be the flaws of the
AT&T/Bell Atlantic arbitration, specifically with regard to
the Hatfield Model. The Board wrote that the information
before the arbitrator was neither as extensive nor as
accurate as that before the Board during the Generic
Proceeding. Furthermore, the Board expressed concern that
"different arbitrators, looking essentially at the same facts,
may arrive at inconsistent decisions, and that the generic
proceeding could be of assistance in ensuring consistency
in the setting of rates . . . with [Bell Atlantic] between and
among the competitive LECs seeking such interconnection."
(App. at 129a). The Board stated that of "great importance
is the fact that this generic proceeding has allowed the
Board to establish rates, terms and condition[s] for
interconnection with [Bell Atlantic] . . . which are consistent
statewide." (App. at 147a). In this respect, the Board noted
that the separate arbitrations of AT&T and MCI with Bell
Atlantic had yielded different results, even though the
information considered was materially the same. Moreover,
the Board noted, the AT&T/Bell Atlantic agreement was the
only agreement that did not establish interim rates pending
the Generic Proceeding. At the end of the memorandum,
the Board provided a summation of its decision, in which it
found that it was in the public interest to substitute the
generic rates for the arbitrated rates in the AT&T/Bell
Atlantic Interconnection agreement.

On November 24, 1997, AT&T filed a complaint in the
District Court seeking review of, among other things, the
Board's decision to replace the arbitrated rates with the
generic rates. On February 2, 1998, the District Court
entered an order permitting the Advocate to intervene,
aligned as a plaintiff. The Advocate subsequently adopted
AT&T's pleadings.

                               8
Following briefing and oral argument, the District Court
issued an opinion on June 6, 2000, "affirming the Board's
decision to substitute generic rates for arbitrated rates
as a proper exercise of authority under the
[Telecommunications] Act." (App. at 13a-16a). The District
Court also held, however, that the specific generic rates for
interconnection established by the Board were the result of
"arbitrary and capricious" decision-making. Thus, the
District Court reversed the Board's generic rate
determinations and remanded the case to the Board for
further proceedings. The Advocate filed a notice of appeal
from that portion of the District Court's decision which
affirmed the Board's action of substituting the generic rates
for the arbitrated rates. AT&T is not a party to this appeal.

The District Court had jurisdiction over this case under
47 U.S.C. S 252(e)(6), which provides that any party
objecting to a final agreement approved by a State
Commission may seek judicial review in a federal district
court. We have jurisdiction over the Advocate's appeal from
the District Court's affirmance of the Board's decision
under 28 U.S.C. S 1291.

II.

On appeal, the Advocate argues that the District Court
erred in holding that the Telecommunications Act
authorized the Board to substitute generic rates for the
arbitrated rates in the AT&T/Bell Atlantic interconnection
agreement. Initially, the appellees respond by arguing that
the Advocate lacks standing to bring this appeal because
the Advocate has not been aggrieved by the District Court's
disposition, and because this Court's resolution of the
issues raised in this appeal would afford the Advocate no
actual affirmative relief.

Because standing is a fundamental jurisdictional
question, challenges to standing must be addressed before
reaching the merits of an appeal. Steel Co. v. Citizens for a
Better Env't, 523 U.S. 83, 102 (1998). We have plenary
review over questions of standing. Gen. Instrument Corp. of

                               9
Del. v. Nu-Tek Elecs. & Mfg., Inc., 197 F.3d 83, 86 (3d Cir.
1999).3

A.

Before delving into the doctrinal specifics of standing, we
must first resolve a dispute between the parties as to the
proper characterization of the Board's substitution of rates,
as that dispute will, in part, determine the outcome of the
standing issue. Throughout its briefs, the Advocate argues
that the Board adopted a blanket policy that generic rates
will supercede arbitrated rates in every instance and that
the Board applied this policy to the AT&T/Bell Atlantic
interconnection agreement. By contrast, the appellees view
the Board's action to substitute the generic rates for the
arbitrated rates in the AT&T/Bell Atlantic agreement as a
fact-specific decision which was motivated by the peculiar
deficiencies of the AT&T/Bell Atlantic arbitration. We
believe that the latter view is more congruent with the
record.

To begin, the Board's December 2, 1997, memorandum
(the Board's only written document addressing rate
substitution) is, by its terms, a fact-specific decision to
substitute rates only into the agreement between AT&T and
Bell Atlantic. Indeed, as we mentioned before, the end of
the memorandum provides a summary that expressly notes
the peculiar circumstances of the AT&T/Bell Atlantic
arbitration and makes a finding only as to that arbitration:

       In summary, because the generic proceeding produced
       a complete factual and legal record which has
       permitted the Board to thoroughly evaluate all the
       issues related to the introduction of local exchange
       competition through interconnection, purchase of
       unbundled network elements and resale, because it
       was appropriate in the arbitrations to set interim rates
       which would be modified upon issuance of the Board's
       determinations in this proceeding, because the
_________________________________________________________________

3. Because we ultimately dismiss the Advocate's appeal for lack of
standing, we need not address the standard under 47 U.S.C. S 252(e)(6)
for reviewing the merits of a State Commission's determination.

                               10
       arbitrator in the AT&T/[Bell Atlantic] arbitration did
       not have a complete cost study record upon which to
       rely, because the Board in the instant proceeding has
       found significant flaws with the Hatfield model thus
       convincing the Board that the Hatfield model cannot
       alone form the basis of just and reasonable rates for
       interconnection and unbundled network elements,
       because of the uncertain legal landscape upon which
       the parties, arbitrators and the Board have had to rely,
       in light of all the considerations discussed herein, and
       pursuant to the Board's inherent . . . authority, the
       Board FINDS that it is in the public interest and in
       accordance with law to apply the generic rates, terms
       and conditions set forth in this Order to the
       interconnection agreement to be entered between AT&T
       and [Bell Atlantic] to the extent that those rates, terms
       and conditions have not been successfully negotiated by
       AT&T and [Bell Atlantic].

(App. at 155-56) (emphasis added). The "SUMMARY
CONCLUSION AND ORDER" attached to the December 2,
1997 memorandum is limited in a similar fashion:

       The following is a summary of Board directives
       contained herein for the convenience of the reader.
       Details are contained in the text of this Decision and
       Order.

        . . . .

       4) The Board ORDERS that this 60/40 weighting
       factor is to be used for developing the cost of all
       elements for which Hatfield 2.2.2 model results and
       [Bell Atlantic] model results exists, utilizing the
       appropriate inputs as discussed herein. [This sets
       generic rates.]

       5) The Board ORDERS that for those elements for
       which only one cost study result exists [i.e. the
       AT&T/Bell Atlantic agreement rates], that result is
       to be used utilizing the appropriate inputs
       discussed herein.
       [This substitutes generic rates for arbitrated rates.]

(App. at 156).

                               11
The narrow focus of the December 2, 1997 memorandum
is reflected in the actual effect of the Board's decision. At
the conclusion of the Generic Proceeding, there were only
two categories of rates (apart from the generic rates) in
existence in New Jersey: (1) those contained in approved or
pending agreements, which were effective only until rates
were determined in the Generic Proceeding, and (2) the
arbitrated rates in the AT&T/Bell Atlantic agreement,
which, because of the arbitrator's decision, were permanent
rates. Because the first category of rates was already,
through consent, scheduled to give way to the generic rates,
the Board's substitution of rates only affected the arbitrated
rates in the AT&T/Bell Atlantic interconnection agreement.

Another important factor in characterizing the Board's
action is its current position that its action, culminating in
the December 2, 1997 memorandum, constituted a specific
and one-time event. Specifically, the Board states in its
briefs that it did not enact a general policy, and that "the
Generic Order [i.e., the December 2, 1997 memorandum]
does not preclude the prospective of negotiations or
arbitrations" to arrive at rates different, and possibly more
favorable, than the generic rates.

We apply de novo review to a state agency's legal
interpretation of the 1996 Act. See MCI Telecomm Corp v.
Verizon Pennsylvania, Inc., ___ F.3d ___ (3d Cir. 2001)
[typescript at 43]. Such a legal interpretation would include
the board's determination of the scope of its authority to
alter rates determined by the parties to an interconnection
agreement. Under this standard of review and with
consideration of the clear language of the December 2,
1997, memorandum and of the Summary Conclusion and
Order, we find that the Board's current position on the
limited nature of its rate substitution action is reasonable.
Thus, we construe the Board's action as substituting
specific rates into only the AT&T/Bell Atlantic arbitration,
rather than as a generally applicable policy.

B.

With this understanding of the Board's action, we now
address the appellees' challenge to the Advocate's standing

                               12
on appeal. That challenge focuses on the constitutional
requirements stemming from Article III, Section 2 of the
United States Constitution. To demonstrate Article III
standing, a plaintiff bears the burden of establishing three
elements:

       First, the plaintiff must have suffered an injury in fact
       --an invasion of a legally protected interest which is (a)
       concrete and particularized; and (b) actual or
       imminent, not conjectural or hypothetical. Second,
       there must be a causal connection between the injury
       and the conduct complained of--the injury has to be
       fairly . . . trace[able] to the challenged action of the
       defendant, and not . . . th[e] result[of] the independent
       action of some third party not before the court. Third,
       it must be likely, as opposed to merely speculative,
       that the injury will be redressed by a favorable
       decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(citations and internal quotations and footnote omitted); see
also Pitt News v. Fisher, 215 F.3d 354, 359 (3d Cir. 2000)
(observing that the three elements of Article III standing are
injury-in-fact, causation, and redressability), cert. denied,
121 S. Ct. 857 (2001). We conclude that the Advocate can
demonstrate neither injury-in-fact nor redressability.

As to injury-in-fact, the Advocate observes that New
Jersey law expressly authorizes it to appear as a party on
behalf of ratepayers in all utility matters before the Board.
See N.J.S.A. S 13:1D-1. Relying on this statutory directive,
the Advocate claims that there are five types of direct,
palpable injury that it seeks to remedy. According to the
Advocate: (1) retail prices charged by CLECs are higher
because the Board's generic rates are higher than the
arbitrated rates; (2) ratepayers will lose the benefits of
continuous cost-cutting; (3) the Board's substitution of
generic rates for arbitrated rates eliminates product and
price diversity; (4) the Board's action will deter competitive
entry into the local exchange market by raising entry costs
and discouraging differentiation; and (5) the Advocate will
suffer an increased workload arising from the foregoing four
harms. We conclude that none of these alleged injuries

                               13
meets the rigorous constitutional standards for an injury-
in-fact.

First, because the District Court ordered the Board to
redetermine its generic rates, it is unclear whether
ratepayers will actually pay more or whether they will pay
an improperly high rate. In the future, ratepayers will not
be harmed by the rates set unless the Board improperly
sets generic rates on remand. Cf. Envtl. Action v. FERC, 996
F.2d 401, 406-07 (D.C. Cir. 1993) (finding injury-in-fact
where a regulator sets rates higher than those sought by
consumers). As to the latter four injuries, each of them
depends upon continuing harms arising from the Board
repeatedly substituting improperly high generic rates in the
future. However, because the Board made a case specific
decision to substitute rates into the AT&T/Bell Atlantic
interconnection agreement and because those rates will be
redetermined, we are constrained to reject these four
alleged injuries. Therefore, having concluded that there is
no injury-in-fact, we hold that the Advocate lacks standing
to bring this appeal.

Even if we were to determine that the Advocate suffered
an injury-in-fact, we would still conclude that the Advocate
lacks standing because its alleged injury is not redressable.
There is no appropriate remedy that we can grant to the
Advocate. Here, the District Court remanded the case to the
Board for a redetermination of the rates in the Generic
Proceeding. Under these circumstances, it is difficult to
conceive of a remedy that would benefit the Advocate. That
is, if we were to adopt the Advocate's position and reverse
the District Court with respect to the Board's authority to
substitute rates, that reversal would not change the result
of the District Court's decision to remand the case for a
redetermination. See Armotek Indus., Inc. v. Employers Ins.
of Wausau, 952 F.2d 756, 759 n.3 (3d Cir. 1991) ("[A] party
may appeal only if aggrieved by the district court's
judgment. . . . [A] non-aggrieved party with no personal
stake in the appeal may [not maintain the appeal]."). Thus,
we conclude that the Advocate is asking us to render a
purely theoretical opinion on the legal propriety of rate
substitution under the Telecommunications Act. This is not
a remedy we can provide, however, for we are prohibited

                                14
from issuing advisory opinions. See Roe v. Operation
Rescue, 919 F.2d 857, 861 (3d Cir. 1990).

The Advocate argues that a possible remedy is for this
Court to extend the terms of the AT&T/Bell Atlantic
interconnection agreement beyond July 31, 2000, its
original termination date, and to impose arbitrated rates
during that extended term. We deny this request. Before
the District Court, both AT&T and Bell Atlantic explicitly
rejected any use of the arbitrated rates after July 31, 2000.
Moreover, the parties are now arbitrating a new
interconnection agreement. Under these circumstances, we
think that the Advocate's requested relief is neither
available nor desired by the parties to the interconnection
agreement. Thus, all told, we conclude that the Advocate's
alleged injuries are not redressable and that therefore the
Advocate lacks standing.

Because the Advocate lacks standing to bring this appeal,
we express no opinion on the arguments the Advocate
raises concerning the Board's authority under the
Telecommunications Act to substitute the generic rates for
the arbitrated rates in the AT&T/Bell Atlantic
interconnection agreement.

III.

For these reasons, we will dismiss the appeal.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                15
