                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
               FOR THE FOURTH CIRCUIT


MCI WORLDCOM NETWORK SERVICES,        
INCORPORATED,
              Plaintiff-Appellant,
                v.
OSP CONSULTANTS, INCORPORATED,                  No. 02-1262
              Defendant-Appellee.
NATIONAL UTILITY CONTRACTORS
ASSOCIATION,
                   Amicus Curiae.
                                      
           Appeal from the United States District Court
        for the Eastern District of Virginia, at Alexandria.
              Claude M. Hilton, Chief District Judge.
                         (CA-01-150-A)

                     Argued: December 4, 2002

                     Decided: October 27, 2003

    Before MICHAEL, TRAXLER, and KING, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: James J. Proszek, HALL, ESTILL, HARDWICK,
GABLE, GOLDEN & NELSON, P.C., Tulsa, Oklahoma, for Appel-
lant. John P. Lavelle, Jr., BALLARD, SPAHR, ANDREWS &
INGERSOLL, L.L.P., Philadelphia, Pennsylvania, for Appellee. ON
2      MCI WORLDCOM NETWORK SERVICES v. OSP CONSULTANTS
BRIEF: Anthony J. Jorgensen, HALL, ESTILL, HARDWICK,
GABLE, GOLDEN & NELSON, P.C., Tulsa, Oklahoma; Caroline E.
Petro, PIPER, MARBURY, RUDNICK & WOLFE, L.L.P., Washing-
ton, D.C.; Thomas F. O’Neil, III, Chief Litigation Counsel, John A.
Stackhouse, Associate Litigation Counsel, WORLDCOM, INC.,
Washington, D.C., for Appellant. Sally M. Williams, BALLARD,
SPAHR, ANDREWS & INGERSOLL, L.L.P., Philadelphia, Pennsyl-
vania; Jeffrey R. DeCaro, Mary-Lee Miller, DECARO, DORAN,
SICILIANO, GALLAGHER & DEBLASIS, L.L.P., Lanham, Mary-
land; Harvey B. Dikter, INFRASOURCE, INC., Norristown, Pennsyl-
vania, for Appellee. David J. Cynamon, SHAW PITTMAN, L.L.P.,
Washington, D.C., for Amicus Curiae.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   We previously certified to the Supreme Court of Virginia a state-
law question that was determinative of the issue presented in this
appeal. The Supreme Court of Virginia has issued an opinion answer-
ing that certified question, and we now affirm the decision of the dis-
trict court.

   MCI Worldcom Network Services, Inc., a provider of telecommu-
nications services, sued OSP Consultants, Inc., after OSP severed one
of MCI’s underground fiber-optic cables. Because MCI has built
excess capacity into its network, it was able to quickly re-route within
its own network the telecommunications traffic carried by the dam-
aged cable. MCI thus was not required to seek additional capacity
from a third-party during the time that its cable was unavailable. MCI
thereafter brought this action against OSP, seeking damages for the
cost of repairing the cable and damages for the loss of use of the
cable. After a bench trial, the district court awarded MCI more than
       MCI WORLDCOM NETWORK SERVICES v. OSP CONSULTANTS                3
$30,000 for the repair costs, but the court refused to award damages
for the loss of use of the cable. The district court concluded that MCI
suffered no damages from the loss of use because it was not required
to obtain capacity from outside of its own network.

   Under Virginia law, it was not entirely clear whether MCI was
entitled to loss-of-use damages when it was not required to go outside
its network to replace the capacity lost when the cable was severed.
We therefore certified the following question to the Supreme Court
of Virginia:

    Is a telecommunications services carrier entitled to damages
    for the loss of use of a fiber-optic cable damaged by a defen-
    dant when the carrier intended to have the full capacity of
    the damaged cable available for its use should the need have
    arisen, but the carrier was able to accommodate within its
    own network the telecommunications traffic carried by the
    damaged cable and the carrier presented no evidence that it
    suffered loss of revenue or other damages during the time
    that the cable was unavailable?

MCI Worldcom Network Servs. v. OSP Consultants, Inc., No. 02-
1262 (4th Cir. Feb. 10, 2003).

   On September 12, 2003, the Supreme Court of Virginia answered
that question in the negative. The Court explained:

    [T]he evidence shows that [MCI] maintains excess network
    capacity primarily for the general use of its business so that
    it can accommodate varying levels of telecommunications
    traffic. While it is true that the excess capacity enables
    [MCI] to reroute traffic in the event of emergencies, [MCI]
    does not reserve particular cables for use exclusively in
    emergencies . . . . Accordingly, . . . we hold that, in the cir-
    cumstances of this case, [MCI] is not entitled to loss-of-use
    damages.

MCI Worldcom Network Servs. v. OSP Consultants, Inc., 585 S.E.2d
540, 544 (Va. 2003).
4     MCI WORLDCOM NETWORK SERVICES v. OSP CONSULTANTS
   The decision of the Supreme Court of Virginia is dispositive of the
single issue raised on appeal by MCI. Because the district court cor-
rectly anticipated that Virginia law does not permit an award of loss-
of-use damages in this case, we hereby affirm the decision of the dis-
trict court.

                                                         AFFIRMED
