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IN THE SUPREME COURT OF IOWA
No. 44 / 05-1212 Filed September 14, 2007 EAST BUCHANAN TELEPHONE COOPERATIVE, an Iowa Cooperative, Appellant, vs. IOWA UTILITIES BOARD, a Division of the Iowa Department of Commerce, and U.S. CELLULAR CORPORATION, QWEST CORPORATION, and OFFICE OF CONSUMER ADVOCATE, Appellees,

Appeal from the Iowa District Court for Polk County, Scott D. Rosenberg, Judge.

A telephone cooperative appeals from a district court decision holding the Iowa Utilities Board had authority to temporarily and permanently enjoin the cooperative from blocking wireless transit traffic delivered to it by another carrier. AFFIRMED.

Thomas G. Fisher, Jr., of Parrish, Kruidenier, Dunn, Boles, Gribble, Cook, Parrish, Gentry & Fisher, L.L.P., Des Moines, for appellant.

David J. Lynch and Penny G. Baker, Des Moines, for appellee Iowa Utilities Board.

2 Bret A. Dublinske of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellee U.S. Cellular Corporation.

David S. Sather and Timothy J. Goodwin, Des Moines, for appellee Qwest Corporation.

3 HECHT, Justice. The Iowa Utilities Board issued orders temporarily and permanently enjoining East Buchanan Telephone Cooperative (EBTC) from blocking the delivery of telephone calls originated by customers of wireless

telecommunications carriers and transmitted to EBTC by Qwest Corporation. EBTC sought judicial review, contending the board has no authority to issue temporary or permanent injunctions; and asserting in the alternative, if the board has such authority, the evidence does not support injunctive relief against EBTC in this case. EBTC appeals from the district court's ruling affirming the board's decision. I. Background Facts and Proceedings.

EBTC provides phone, cable television, and internet services to four small communities in Buchanan County: Winthrop, Quasqueton, Aurora, and Stanley. EBTC generates part of its income by charging "access

charges"1 to other telecommunications carriers, including Qwest, whose customers place calls to EBTC's members. Qwest is one of several regional Bell operating companies referred to as "Baby Bells."2 Qwest earns part of its revenue from fees charged for transmitting wireless calls placed by the customers of other wireless carriers such as U.S. Cellular to the customers of local exchange carriers such as EBTC. Prior to 1999, EBTC billed and Qwest paid access charges for all wireless traffic transmitted by Qwest to EBTC without regard either to the identity of the originating carrier or whether the traffic originated from within or outside EBTC's local exchange area.
charges are fees charged by local exchange carriers for the use of their infrastructure in the delivery of calls originated by customers of other carriers. Iowa Network Servs., Inc v. Qwest Corp., 363 F.3d 683, 686 (8th Cir. 2004).
2See 1Access

http://www.bell.com/rbocs.htm.

4 Qwest notified EBTC in 1999 that Qwest would no longer pay access charges for wireless calls originated by customers of other wireless carriers and transited by Qwest to EBTC, claiming it had no legal obligation to do so. EBTC continued, however, to bill Qwest for such traffic. On July 12, 2004, EBTC, dissatisfied with its continuing uncompensated delivery of wireless transit traffic originated by other carriers and transmitted to it by Qwest, sent two letters intended to force a resolution of the commercial dispute. One of the letters was sent to Qwest demanding that it stop transmitting telephone traffic to EBTC, except those calls for which Qwest was willing to pay access charges; and notifying Qwest that EBTC would begin blocking the delivery of all other calls transmitted by Qwest for delivery to EBTC's customers on August 16, 2004. The other letter sent by EBTC notified U.S. Cellular of EBTC's demand to Qwest and EBTC's intent to block traffic in the event Qwest failed to meet the demand for payment of EBTC's access charges. Qwest and U.S. Cellular filed complaints with the Iowa Utilities Board on August 13, 2004, requesting "emergency injunctive relief" against EBTC. The complainants asserted a prior decision of the board established that EBTC had no legal right to block the wireless traffic transmitted to it by Qwest for other carriers.3 The board found EBTC's threat to block calls to its customers constituted an immediate danger to public safety because wireless callers would be unable to reach "family, friends, police, or a doctor in EBTC's exchange in an emergency."4 On August 13, 2004, the board
Proposed Decision & Order, In re Exch. Of Transit Traffic, SPU-00-7 (Iowa Utils. Bd. Nov. 26, 2001), aff'd, Order Affirming Proposed Decision & Order (Iowa Utils. Bd. Mar. 18, 2002) (concluding that a transiting carrier is not obligated to pay access charges on "intraMTA traffic" - wireless originated or terminated traffic within a federally-defined major trading area).
4The 3See

board made this finding notwithstanding EBTC's claim that it would not block

911 calls.

5 issued what it characterized as a "temporary injunction" forbidding EBTC from blocking calls transmitted by Qwest. The board also docketed the matter for investigation, consolidated the complaints filed by Qwest and U.S. Cellular, and scheduled a hearing on the question whether it was lawful for EBTC to block all telephone traffic received from Qwest except calls properly identified as Qwest toll traffic.5 After a hearing, the board concluded EBTC's plan to block calls would (1) discontinue or impair service to a community or part of a community in violation of Iowa Code section 476.20(1) (2003), and (2) disadvantage customers who had chosen to receive services from another On

telecommunications carrier in violation of section 476.101(9).

December 23, 2004, the board issued what it characterized as an "Order Granting Injunctive Relief" permanently "enjoining" EBTC from blocking transit traffic, without board approval, transmitted by Qwest.6 EBTC filed a petition for judicial review urging the district court to dissolve the permanent injunction on the ground the board lacked authority to grant injunctive relief under chapter 17A.7 The district court concluded the board has authority to issue temporary injunctive relief in emergency adjudicative proceedings to avert an immediate danger to the public health, safety, or welfare under section 17A.18A(1), and that substantial evidence supported the board's determination that such a danger would be created if
at all times conceded it owed, and it in fact paid to EBTC, access charges on the toll traffic originated by Qwest's own customers. board's order noted that although EBTC could not legally block the disputed traffic under the circumstances of this case, a local exchange carrier is entitled to compensation for the delivery of wireless traffic originated by wireless carriers such as U.S. Cellular. The board recommended remedial options for EBTC including a negotiated interconnection agreement with wireless carriers or a request for arbitration.
7Qwest, U.S. Cellular, and the Office of Consumer Advocate intervened in the judicial review proceeding. 6The 5Qwest

6 EBTC's plan to block wireless traffic were not enjoined. The district court further concluded the board's order of December 23, 2004 "permanently enjoin[ing]" EBTC from blocking the traffic at issue was within the board's broad powers under chapter 476 because it merely directed EBTC to follow the law. EBTC asserts on appeal to this court that the board has no authority to issue temporary or permanent injunctions. EBTC claims in the

alternative that even if the board has authority to grant temporary injunctive relief in emergency adjudicative proceedings under

section 17A.18A(1), there is no factual basis for a grant of such relief in this case because the complainants failed to establish (1) the existence of an immediate danger to the public health, safety, or welfare arising from EBTC's plan to block calls; and (2) equitable grounds for injunctive relief (an invasion or threatened invasion of a right, substantial injury or damages will result if an injunction is not granted, and no adequate legal remedy is available).8 II. Scope and Standards of Review.

Our review in this case is governed by section 17A.19 of the Iowa Administrative Procedure Act (IAPA). AT&T Commc'ns of the Midwest, Inc. v. Iowa Utils. Bd., 687 N.W.2d 554, 557 (Iowa 2004). "We review the district court's decision by applying the standards of the [IAPA] to the agency action to determine if our conclusions are the same as those reached by the district court." Univ. of Iowa Hosp. & Clinics v. Waters, 674 N.W.2d 92, 95 (Iowa 2004). We must " `reverse, modify, or grant other appropriate relief' if we conclude a person's substantial rights have been prejudiced because of
does not challenge on appeal the merits of the board's determinations that (1) Qwest does not owe access charges to EBTC on the disputed traffic, and (2) EBTC has no legal right to block the traffic.
8EBTC

7 the agency action," and the agency action is a type listed in Iowa Code section 17A.19(10).

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