                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                    File Name: 06a0256p.06

                   UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                                        X
                                  Plaintiff-Appellant, -
 BELLSOUTH TELECOMMUNICATIONS, INC.,
                                                         -
                                                         -
                                                         -
                                                             No. 05-5674
            v.
                                                         ,
                                                          >
 UNIVERSAL TELECOM, INC.; PUBLIC SERVICE                 -
                                                         -
                                                         -
 COMMISSION OF KENTUCKY; MARK DAVID GOSS,

                                                         -
 Chairman of the Public Service Commission of

                                                         -
 Kentucky; TERESA J. HILL, Vice-Chairman of the
                                                         -
 Public Service Commission of Kentucky; W.
                                                         -
 GREGORY COKER, Commissioner for the Public
 Service Commission of Kentucky,                         -
                               Defendants-Appellees. -
                                                         -
                                                        N
                         Appeal from the United States District Court
                       for the Eastern District of Kentucky at Frankfort.
                   No. 04-00035—Joseph M. Hood, Chief District Judge.
                                   Argued: June 1, 2006
                             Decided and Filed: July 21, 2006
            Before: BOGGS, Chief Judge; KEITH and SUTTON, Circuit Judges.
                                    _________________
                                        COUNSEL
ARGUED: Mark R. Overstreet, STITES & HARBISON, Frankfort, Kentucky, for Appellant.
Holly C. Wallace, DINSMORE & SHOHL, Louisville, Kentucky, John E.B. Pinney, PUBLIC
SERVICE COMMISSION OF KENTUCKY, Frankfort, Kentucky, for Appellees. ON BRIEF:
Mark R. Overstreet, STITES & HARBISON, Frankfort, Kentucky, Dorothy J. Chambers,
BELLSOUTH TELECOMMUNICATIONS, INC., Louisville, Kentucky, for Appellant. Holly C.
Wallace, John E. Selent, DINSMORE & SHOHL, Louisville, Kentucky, John E.B. Pinney, Amy E.
Dougherty, PUBLIC SERVICE COMMISSION OF KENTUCKY, Frankfort, Kentucky, for
Appellees.




                                              1
No. 05-5674           BellSouth Telecommunications v. Universal Telecom, et al.               Page 2


                                       _________________
                                           OPINION
                                       _________________
       SUTTON, Circuit Judge. BellSouth Telecommunications challenges the district court’s
affirmance of an order of the Kentucky Public Service Commission allowing Universal Telecom to
adopt an existing interconnection agreement between BellSouth and MCI. See 47 U.S.C. § 252(i).
Finding no error by the Commission, we affirm.
                                                  I.
        In enacting the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified
at 47 U.S.C. § 151 et seq.), Congress sought to enhance competition in the telecommunications
industry. To that end, the Act requires incumbent providers of local phone service to offer
“interconnection” services—to share their network, in other words—with other telecommunications
companies, 47 U.S.C. § 251(a)(1), and provides three mechanisms for doing so: The incumbent and
the competitor may negotiate the terms of an interconnection agreement, § 252(a); they may go
through arbitration to establish the terms of an interconnection agreement, § 252(b); or a carrier may
adopt an existing interconnection agreement between the incumbent and another
telecommunications company, § 252(i). Once the parties have reached an agreement via one of
these paths, the Act “entrusts state commissions with the job of approving interconnection
agreements.” AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 385 (1999); see 47 U.S.C. § 252(e)(1).
        At issue here is the adoption provision, § 252(i), which permits an entrant to a local
telephone market (like Universal) to forgo negotiation or arbitration with an incumbent (like
BellSouth) by adopting a previously negotiated or arbitrated interconnection agreement between the
incumbent and another carrier, see id. (“A local exchange carrier shall make available any
interconnection, service, or network element provided under an agreement approved under this
section to which it is a party to any other requesting telecommunications carrier upon the same terms
and conditions as those provided in the agreement.”).
       The right to adopt an existing interconnection agreement contains several limitations, one
of which is time. Under a regulation promulgated by the Federal Communications Commission
(FCC), an entrant seeking to adopt an approved agreement must do so within “a reasonable period
of time after the approved agreement is available for public inspection,” 47 C.F.R. § 51.809(c),
which is to say a reasonable time after the state commission has approved the underlying agreement,
47 U.S.C. § 252(e)(1), (h).
         On July 29, 2002, BellSouth and MCI completed the negotiation of an interconnection
agreement, and on August 28, 2002, the Kentucky Public Service Commission approved the
agreement. On March 12, 2004, and again on April 12, Universal communicated with BellSouth
that it wished to adopt the MCI agreement. BellSouth responded on May 3 with roughly 200 pages
of changes that the company believed had to be made to the existing agreement in order to bring it
into compliance with federal law. On May 11, apparently disagreeing with BellSouth’s position,
Universal filed a notice with the Commission conveying its intent to adopt the BellSouth-MCI
agreement. On May 19, the Commission granted Universal’s request.
         On May 24, BellSouth filed a motion for reconsideration with the Commission. It noted that
intervening FCC orders had invalidated provisions of the MCI agreement and argued that, as a
result, the “reasonable period of time” in which Universal could adopt that agreement had expired.
JA 45. On June 14, the Commission again approved Universal’s adoption of the agreement, noting
that Universal was “not seeking to adopt” the provisions affected by one of the orders, id. at 58, and
that the orders in question at any rate did not prohibit adoption of existing agreements.
No. 05-5674           BellSouth Telecommunications v. Universal Telecom, et al.               Page 3


        On July 2, 2004, BellSouth filed a complaint in federal court against Universal, the
Commission and the individual commissioners (in their official capacities), challenging the
Commission’s decision. See 47 U.S.C. § 252(e)(6). On March 28, 2005, the district court affirmed
the Commission’s adoption order. In addressing BellSouth’s argument that the reasonable period
of time to adopt the MCI agreement had lapsed due to changes in telecommunications law, the court
noted that BellSouth “fails to state how and in what regard the [intervening FCC] orders affect the
Agreement,” D. Ct. Op. at 6, and that “[i]f the law has changed, the adopted BellSouth-MCI
Agreement may be modified via the change of law provision located therein,” id. at 9.
                                                 II.
       “We review the Commission’s interpretation of the Act de novo” but will uphold its decision
approving the adoption of the MCI agreement “if it is the result of a deliberate principled reasoning
process, and if it is supported by substantial evidence.” Mich. Bell Tel. Co. v. MCIMetro Access
Transmission Servs., Inc., 323 F.3d 348, 354 (6th Cir. 2003) (internal quotation marks omitted). Put
another way, we will not “reverse the Commission’s decision absent a clear error of judgment or the
Commission’s failure to consider relevant factors or aspects of the problem.” Id.
         The three parties to this appeal share considerable common ground. All agree that § 252(i)
required BellSouth to make the MCI interconnection agreement available for adoption. All agree
that the FCC required Universal to make that adoption within a reasonable period of time. All agree
that the reasonable-period standard is a flexible one. See BellSouth Br. at 24 (“[T]he
FCC . . . explained the necessity for employing a flexible standard . . . .”). And all agree that
intervening changes in federal law made certain provisions of the MCI agreement unadoptable under
47 C.F.R. § 51.809. See Comm’n Br. at 8 (“Neither the [Commission] nor Universal Telecom
disputes” that “portions of [the] agreement with MCI conflicted with federal law.”) (internal
quotation marks omitted).
       That leaves us with two points of contention—one procedural, one substantive.
Procedurally, BellSouth argues that the Commission and the district court failed to consider whether
a “reasonable period [of time] had lapsed since the Commission approved the MCI Agreement.”
BellSouth Br. at 14. Substantively, BellSouth suggests that a reasonable period of time necessarily
expires when intervening regulatory developments establish that portions of an interconnection
agreement no longer comport with federal law.
        The procedural argument lacks merit because the Commission and the district court each
addressed BellSouth’s objection. Soon after Universal moved the Commission to approve its
adoption of the BellSouth-MCI agreement, the Commission did so. After receiving the
Commission’s order, BellSouth filed a motion for reconsideration arguing that intervening legal
changes made the agreement unfit for adoption: “BellSouth has no objection to the Commission
allowing Universal Telecom to adopt an agreement after it is conformed to the requirements of the
ISP Remand Order and [Triennial Review Order].” JA 47. In its reconsideration order, the
Commission characterized BellSouth’s argument as being that “the MCI agreement is not
appropriate [for adoption] because that agreement does not comply with the [FCC] determinations
made in the Triennial Review Order or the ISP compensation order.” Id. at 58 (footnotes omitted).
Then, in response, it reasoned (1) that “Universal Telecom . . . does not provide ISP service and so
is not seeking to adopt that particular provision,” id., and (2) that “the FCC did not indicate in its
Triennial Review Order that all existing agreements were no longer valid,” which stands in contrast
with the ISP order, which affirmatively precluded the adoption of terms affected by the order. Id.
at 59.
       It is true, as BellSouth points out, that the Commission did not describe its ruling in
“reasonable time” terms. But the Commission plainly addressed, and rejected, the premises of
No. 05-5674           BellSouth Telecommunications v. Universal Telecom, et al.               Page 4


BellSouth’s “reasonable time” argument. BellSouth had “no objection,” it told the Commission, to
the adoption of the MCI agreement so long as the agreement was made to “conform[] to the
requirements” of two intervening orders. Id. at 47. And in response, the Commission, quite
understandably, explained why neither regulation precluded adoption of the MCI agreement.
BellSouth, in short, cannot claim that the Commission failed to address its argument.
        The district court likewise addressed this argument. In its brief to the district court,
BellSouth stated that the “issue in this action is whether the reasonable period for adopting an
approved interconnection agreement expires when subsequent significant regulatory developments
render the agreement, or portions of it, contrary to federal law.” Id. at 64. Based on this argument,
the district court characterized BellSouth’s position to be “that the ‘reasonable period of time’ for
adopting a previously approved agreement expires upon subsequent regulatory developments that
render the agreement, or portions thereof, contrary to federal law.” D. Ct. Op. at 6. The court also
noted that “BellSouth’s brief . . . fails to state how and in what regard the orders affect the
Agreement.” Id. The court then considered the intervening orders and determined either that they
did not apply to Universal’s business or that, “[i]f the law has changed, the adopted BellSouth-MCI
Agreement may be modified via the change of law provision located therein.” Id. at 9.
         BellSouth’s substantive argument fares no better. The question, BellSouth submits, is
whether the Commission erred in determining that Universal adopted the MCI agreement within “a
reasonable period of time.” 47 C.F.R. § 51.809(c). In claiming error, BellSouth initially argues (as
it did before the Commission and district court) that two intervening FCC orders—the ISP Remand
Order, see In re Implementation of Local Competition Provisions in the Telecommunications Act of
1996 (Order on Remand), 16 F.C.C.R. 9151 (2001), and the Triennial Review Order, see In the
Matter of Review of the § 251 Unbundling Obligations of Incumbent Local Exchange Carriers, 18
F.C.C.R. 16978 (2003)—show that a reasonable period of time lapsed before Universal sought to
adopt the BellSouth-MCI agreement. But in making this contention, BellSouth fails to explain how
or why these orders affect the agreement. It does not complain that the costs of providing this
agreement to Universal exceed the costs of providing it to MCI, see 47 C.F.R. § 51.809(b)(1), and
it does not complain that Universal’s adoption of the MCI agreement “is not technically feasible,”
id. § 51.809(b)(2).
        The ISP order “govern[s] telecommunications traffic bound for Internet service providers
[ISPs],” see In re Core Commc’ns, Inc., --- F.3d ----, 2006 WL 1789003, at *1 (D.C. Cir. June 30,
2006), and Universal is not an internet service provider. It thus was in no position to adopt that
component of the MCI-BellSouth agreement. To be sure, in issuing the ISP order, the FCC provided
“that any ‘reasonable period of time’ for making available rates applicable to the exchange of
[certain] traffic expires upon the Commission’s adoption [of] this Order.” ISP Remand Order, 16
F.C.C.R. at 9189 n.155. Even assuming for the sake of argument that the FCC properly construed
§ 51.809(c) in issuing this order, it shows only that some orders so change the regulatory landscape
that the agency feels compelled to prohibit other carriers from adopting agreements after the order.
But the reasonable-period-of-time component of the ISP order does not bear the weight BellSouth
places on it because Universal does not offer internet services and thus is not seeking to adopt that
portion of the MCI-BellSouth agreement.
        More pertinently, the ISP order shows that the FCC well knows how to issue an order
providing that a significant change in the regulatory landscape runs out the clock on the “reasonable
period of time.” Yet it included no such proviso with respect to the other intervening order invoked
by BellSouth—the Triennial Review Order. Nor has BellSouth explained what it is about the
Triennial Review Order that makes adoption of the BellSouth-MCI agreement infeasible, unduly
costly, or otherwise indicative that an unreasonable time for adopting the agreement has run. The
company also has failed to explain why the MCI agreement’s change-of-law provision does not
No. 05-5674           BellSouth Telecommunications v. Universal Telecom, et al.              Page 5


solve this problem and indeed acknowledged at oral argument that it has not yet sought relief under
this provision.
        In addition to arguing that these intervening orders establish that a “reasonable period of
time” has run, BellSouth seems to suggest that any change in law causes this period to lapse—no
matter how soon it occurs after the state agency approves the underlying agreement, no matter how
material (or immaterial) the change and no matter whether the adoption agreement contains a
change-in-law provision that allows for the parties to account for regulatory changes. As an initial
response, it bears emphasizing that the regulation by its terms links the reasonableness of an
adoption to the passage of time, not to the passage of new laws. See 47 C.F.R. § 51.809(c)
(“Individual agreements shall remain available for use by telecommunications carriers pursuant to
this section for a reasonable period of time after the approved agreement is available for public
inspection . . . .”) (emphasis added). We have no doubt that intervening changes in the law are one
of the reasons for the “reasonable period of time” limitation, and it may well be that the FCC has
authority in construing its own regulation to say that certain significant orders necessarily run out
the reasonable-period clock. But that hardly proves that any change in law, no matter how soon after
approval of the underlying agreement and no matter how irrelevant to that agreement, necessarily
establishes that a “reasonable period of time” has run. Were that the FCC’s objective, one would
not expect the agency to promulgate a regulation using time and time alone as its measure.
        Not just the word “time” but the word “reasonable” also undermines BellSouth’s categorical
argument. The FCC, to our knowledge, has yet to construe “reasonable” period of time under
§ 51.809(c), but as BellSouth acknowledges elsewhere in its brief, “a flexible standard is implicit
in the FCC’s use of the term ‘reasonable.’” BellSouth Br. at 24. “Reasonable” plainly is a relative
term, dependent on context and circumstances, and the FCC’s invocation of that term here casts
considerable doubt on the contention that a change in law necessarily establishes that a reasonable
period of time has lapsed.
        In the final analysis, the FCC established a “time” limit of “reasonable” length for carriers
to adopt existing interconnection agreements. BellSouth does not complain about the “time”
between the approval of the underlying MCI agreement and Universal’s adoption of it or about the
“reasonable[ness]” of that interval. It instead says that two intervening FCC orders necessarily
establish that Universal has exceeded this time limit, even though one order does not apply to
Universal’s adoption request and even though BellSouth has yet to explain how the other order
applies to the agreement or prejudices it. While we do not doubt that the FCC promulgated the time
limitation in part to account for intervening changes in law, BellSouth errs in contending that any
change in law or that these particular changes establish that a “reasonable period of time” has come
and gone.
                                                III.
       For these reasons, we affirm.
