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Voices for Choices v. Ill. Bell Tel. Co. - 339 F.3d 542 (7th Cir. 2003)


No matter who a would-be amicus curiae is, the criterion for deciding whether to permit the filing of an amicus brief should be the same: whether the brief will assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties' briefs. The criterion is more likely to be satisfied in a case in which a party is inadequately represented; or in which the would-be amicus has a direct interest in another case that may be materially affected by a decision in this case; or in which the amicus has a unique perspective or specific information that can assist the court beyond what the parties can provide.


The defendants, telephone companies that do business in Illinois (“SBC”), appealed from the district court's decision that portions of the Illinois Public Utilities Act were preempted by the provisions of the Federal Telecommunications Act of 1996 that require owners of telecommunications network infrastructure, like SBC, to grant access to their networks by competing carriers on rates, terms, and conditions that are just, reasonable and nondiscriminatory. The district court found that the Illinois statute conflicted with the federal act in two respects: (i) it instructed the Illinois Commerce Commission to determine fill (the percentage of the network capacity that is being utilized), and depreciation costs on the basis of SBC's actual costs, ignoring the Federal Telecommunications Act's "hypothetical efficient provider" standard and (ii) it amounted to "rate-setting," an activity that the federal act required to be performed by state administrative bodies like the Illinois Commerce Commission rather than by the state legislature itself. Pursuant to the district court’s decision, the SBC, and the President of the Illinois Senate and the Speaker of the Illinois House of Representatives, each filed motions for leave to file amicus curiae briefs pursuant to Fed. R. App. P. 29. The brief filed by the President of the Senate and Speaker of the Illinois House claimed that their proposed amicus curiae brief presented the opportunity for the court to consider certain issues regarding the telecommunications industry. The second brief filed by the union asserted that the Illinois statute was intended to remedy problems attributable to artificially low lease rates, among other arguments. 


Taking into consideration the circumstances of the case, should the motions for leave to file amicus curiae briefs be granted?




The U.S. Circuit Court of Appeals held that the decision on whether to allow the filing of an amicus curiae brief was a matter of "judicial grace." The Court concluded that the briefs covered the same ground, and pursuant to the practice of the judges to deny permission to file an amicus brief that essentially duplicated a party's brief, the Court denied the motions of SBC and the President of the Illinois Senate and the Speaker of the Illinois House of Representatives. 

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