ACS of Fairbanks, Inc. v. GCI Communication Corp.

ORDER

Plaintiffs-Appellees ACS of Fairbanks, Inc., ACS of Alaska, Inc., and ACS of Northland, Inc., collectively referred to as “ACS,” seek declaratory and injunctive relief against the enforcement of interconnection contracts arbitrated and approved by the Regulatory Commission of Alaska (“RCA”) at the request of GCI Communication Corporation d/b/a/ General Communication, Inc., d/b/a GCI (“GCI”) under the Tele-communications Act of 1996, 47 U.S.C. § 251 et seq.

At oral argument, counsel for RCA offered to allow the individual commissioners to be reinstated as parties to this action in substitution for RCA. Counsel acknowledged that the doctrine of Ex parte Young, 209 U.S. 123 , 28 S.Ct. 441 , 52 L.Ed. 714 (1908), permits suit against the commissioners in their official capacities. We hold that the federal courts have jurisdiction under 28 U.S.C. § 1331 to entertain such a suit against the commissioners. See Verizon Md., Inc. v. Public Serv. Comm’n of Md., et al., 535 U.S. 635 , 122 S.Ct. 1753, 1758 , 152 L.Ed.2d 871 (2002).

We do not need to decide the Eleventh Amendment immunity issue as against RCA “because ... even absent waiver, [ACS] may proceed against the individual…