AVENTURE COMMUNICATION TECHNOL. v. IOWA UTILITIES

e party may meet that burden by showing that its interests at risk in the litigation are not shared by the general citizenry. See Mille Lacs Band, 989 F.2d at 1001 (noting that a specific property interest in the outcome of the litigation goes beyond the general public interest in the preservation of natural resources); Ubbelohde, 330 F.3d at 1025 (noting that when the government is forced to weigh competing interests, such as weighing upstream and downstream interests in the management of a river system, it may favor one over another and therefore be unable to adequately represent the conflicting interests). It is not sufficient that the party seeking intervention merely disagrees with the litigation strategy or objectives of the party representing its interests. Chiglo, 104 F.3d at 188. Little Rock Sch. Dist. v. North Little Rock Sch. Dist., 378 F.3d 774, 780 (8th Cir. 2004). Here, even assuming that the IUB is a government agency that adequately represents the public's interest, the intervening IXCs have shown that they have peculiar interests that are distinct from the public interest in available, efficient, economical telecommunications services that the IUB can be expected to protect. The IXCs' interests are unique operational, competitive, and financial interests.

Therefore, the IXCs' unresisted motions to intervene as of right will be granted; the court need not consider Verizon's, AT T's, and Sprint's alternative arguments for permissive intervention. As a result of their intervention as of right, the court will give full consideration to the IXCs' arguments, as well as the IUB's, in resistance to Aventure's Motion For Preliminary Injunction.

B. Qwest's "Jurisdictional" Challenges

It is an intervenor, Qwest, rather than the IUB, that raises "jurisdictional" challenges to Aventure's Motion For Preliminary Injunction and, presumably, Aventure's Complaint. In essence, Qwest's "jurisdictional" challenges are as follows: The HVAS Order is subject to judicial review in Iowa state courts, so this court should abstain from hearing Count I; all of Aventure's claims, to the extent that they are based on Aventure's allegations regarding related, pending IUB proceedings, require the court to abstain under the Younger Doctrine; and, as to Counts II through IX, Aventure has not exhausted its administrative remedies pursuant to the prudential doctrine. Because Aventure did not

address any such "jurisdictional" issues in its Motion For Preliminary Injunction, the court treated Qwest as the movant for purposes of raising these "jurisdictional" issues.

Qwest's "jurisdictional" challenges need not detain the court long, however, because the court finds that they are red herrings. First, it is well-settled that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights. See, e.g., Independent Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1050, 1056 (9th Cir. 2008) ("It is beyond dispute that federal courts have jurisdiction over suits to enjoin state officials from interfering with federal rights."); Planned Parenthood of Houston and Southeast Tex. v. Sanchez, 403 F.3d 324, 334 (5th Cir. 2005) ("While there may be some lack of harmony in the case law, the rule that there is an implied right of action to enjoin state or local regulation that is preempted by a federal statutory or constitutional provision — and that such an action falls within the federal question jurisdiction — is well-established."); Qwest Corp. v. City of Santa Fe, New Mex., 380 F.3d 1258, 1264 (10th Cir. 2004) ("[T]his court has concluded that federal district courts have jurisdiction over actions seeking to enjoin the enforcement of a state regulation," citing ANR Pipeline Co. v. Corporation Comm'n of Okla., 860 F.2d 1571, 1576 (10th Cir. 1988), in turn relying on Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n. 14 (1983)); Local Union No. 12004 v. Massachusetts, 377 F.3d 64, 75 n. 8 (1st Cir. 2004) ("`[T]he rule that there is an implied right of action to enjoin state or local regulation that is preempted by a federal statutory or constitutional provision — and that such an action falls within the federal question jurisdiction — is well-established.'" (quoting Richard H. Fallon et al., Hart Wechsler's The Federal Courts The Federal System 903 (5th ed. 2003)); Ammex, Inc. v. Cox, 351 F.3d 697, 702-03 (6th Cir. 2003) ("The Supreme Court's decision in Shaw v. Delta Air Lines, Inc. makes clear that a federal court has subject matter jurisdiction when a person seeks to enjoin state officials from enforcing a state regulation against the person on the ground that the regulation violates federal rights.").

Second, Qwest's "jurisdictional" challenges are based on mischaracterizations of Aventure's Complaint and Motion For Preliminary Injunction. Aventure is not seeking judicial review of the IUB's rule-making proceedings, and certainly is not seeking judicial review of related pending administrative proceedings in this action, which it identifies primarily for the purpose of showing that the IUB's application of the HVAS Order is causing Aventure irreparable harm. Rather, Aventure is asserting that enforcement of the HVAS Order would violate federal rights, falling squarely within this federal court's jurisdiction.

Third, Qwest has cited no authority that a complainant in a federal action for injunctive relief from a state regulation must first "exhaust" state administrative remedies — either as a prudential or a jurisdictional matter — by bringing all of its federal law challenges to the regulation before the administrative agency in the proceedings that produced the challenged regulation.

Fourth, the rule-making proceedings that produced the HVAS Order have terminated. Thus, the circumstances presented here fail the first prong of the Younger abstention doctrine. See Plouffe v. Ligon, 606 F.3d 890, 892 (8th Cir. 2010) ("The Younger abstention doctrine, as it has evolved, provides that federal courts should abstain from exercising jurisdiction when (1) there is an ongoing state proceeding, (2) which implicates important state interests, and (3) there is an adequate opportunity to raise any relevant federal questions in the state proceeding," citing Middlesex County Ethics Comm'n v. Garden State Bar Ass'n, 457 U.S. 423, 432 (1982)). In other words, there is no state judicial or administrative proceeding to be disrupted by Aventure's action to enjoin implementation of the HVAS Order. Aaron v. Target Corp., 357 F.3d 768, 774 (8th Cir.

2004) (the "first Middlesex inquiry" considers "whether there is an ongoing state judicial proceeding that would be disrupted by the federal action").

The court rejects Qwest's "jurisdictional" challenges to Aventure's action and, therefore, turns to consideration of the merits of Aventure's Motion For Preliminary Injunction.

C. Standards For Preliminary Injunctive Relief

As this court has explained in past cases, it is well-settled in this circuit that applications for preliminary injunctions are generally measured against the factors set forth in the seminal decision in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 113 (8th Cir. 1981) ( en banc). See Wachovia Sec., L.L.C. v. Stanton, 571 F. Supp. 2d 1014, 1031 (N.D. Iowa 2008); Interbake Foods, L.L.C. v. Tomasiello, 461 F. Supp. 2d 943, 954-55 (N.D. Iowa 2006); McLeodUSA Telecommc'ns Servs., Inc. v. Qwest Corp., 361 F. Supp. 2d 912, 918 (N.D. Iowa 2005); Doctor John's, Inc. v. City of Sioux City, Iowa, 305 F. Supp. 2d 1022, 1033-34 (N.D. Iowa 2004); Branstad v. Glickman, 118 F. Supp. 2d 925, 937 (N.D. Iowa 2000); Uncle B's Bakery, Inc. v. O'Rourke, 920 F. Supp. 1405, 1411 (N.D. Iowa 1996); accord Straights and Gays for Equality v. Osseo Area Sch. Dist., 471 F.3d 908, 911 (8th Cir. 2006) (same factors); Lankford v. Sherman, 451 F.3d 496, 503 (8th Cir. 2006) (same factors). The so-called " Dataphase factors" that courts must weigh to decide whether or not to grant a preliminary injunction are the following: (1) the movant's probability or likelihood of success on the merits, (2) the threat of irreparable harm or injury to the movant absent the injunction, (3) the balance between the harm to the movant and the harm that the injunction's issuance would inflict on other interested parties, and (4) the public interest. Dataphase, 640 F.2d at 114; accord Stanton, 571 F. Supp. 2d at 1032; Interbake Foods, L.L.C., 461 F. Supp. 2d at 955; Doctor John's, Inc., 305 F. Supp. 2d at 1033; Branstad I, 118 F. Supp. 2d at 937 (quoting similar factors from Entergy, Ark., Inc. v. Nebraska, 210 F.3d 887, 898 (8th Cir. 2000)); FED. R. CIV. P. 65(b)(1).

The burden is on the movant to establish that injunctive relief is appropriate. Lankford, 451 F.3d at 503; Baker Elec. Co-op., Inc. v. Chaske, 28 F.3d 1466, 1472 (8th Cir. 1994); Modern Computer Sys., Inc., v. Modern Banking Sys., Inc., 871 F.2d 734, 737 (8th Cir. 1989) ( en banc). "`No single [ Dataphase] factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance they weigh towards granting the injunction.'" Baker Elec. Co-op., 28 F.3d at 1472 (quoting Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir. 1987) (citing Dataphase)); accord Lankford, 451 F.3d at 503 ("No single factor is dispositive, as the district court must balance all factors to determine whether the injunction should issue.") (citing Baker Elec. Co-op.); Bandag, Inc. v. Jack's Tire Oil, Inc., 190 F.3d 924, 926 (8th Cir. 1999) ("These factors are not a rigid formula."). "`A district court has broad discretion when ruling on requests for preliminary injunctions, and [the appellate court] will reverse only for clearly erroneous factual determinations, an error of law, or an abuse of that discretion.'" Entergy, Ark., Inc., 210 F.3d at 898 (quoting United Indus. Corp, 140 F.3d at 1179); accord Lankford, 451 F.3d at 503. The court abuses its discretion "where the district court rests its conclusion on clearly erroneous factual findings or erroneous legal conclusions." Lankford, 451 F.3d at 503-04.

D. Application Of The Standards

As a matter of completeness, the court will consider, at least briefly, each of the four " Dataphase factors." See Lankford, 451 F.3d at 503 ("No single factor is dispositive, as the district court must balance all factors to determine whether the injunction should issue.") (citing Baker Elec. Co-op., 28 F.3d at 1472).

1. Likelihood of success a. Applicable standards

The first " Dataphase factor" that courts must consider when ruling on an application for a preliminary injunction is the likelihood or probability of success on the merits. Dataphase, 640 F.2d at 114. There are two prongs to the "likelihood of success" factor.

First, likelihood of success on the merits requires that the movant find support for its position in governing law. See, e.g., Baker Elec. Co-op., 28 F.3d at 1473-74 (Indian tribe's sovereignty to regulate electrical services); ILQ Inv., Inc. v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir. 1994) ( first amendment and prior restraint of expression); City of Timber Lake v. Cheyenne River Sioux Tribe, 10 F.3d 554, 556-58 (8th Cir. 1993) (Indian tribe's regulatory authority and authority of states to regulate activities on tribal lands); Aziz v. Moore, 8 F.3d 13, 15 (8th Cir. 1993) (denial of injunctive relief was proper because federal courts "must abstain from imposing injunctions on prison officials [in an action under 42 U.S.C. § 1983 action] `in the absence of a concrete showing of a valid claim and constitutionally mandated directives for relief,'" quoting Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982)).

Second, this factor requires some assessment of how likely the movant is to succeed. When determining likelihood of success, the court does not decide whether the movant for a preliminary injunction will ultimately win. Heather K. v. City of Mallard, 887 F. Supp. 1249, 1258 (citing Glenwood Bridge, Inc. v. City of Minneapolis, 940 F.2d 367, 371 (8th Cir. 1991)). Rather, "at the early stage of a preliminary injunction motion, the speculative nature of this particular [`likelihood of success'] inquiry militates against any wooden or mathematical application of the test. Instead, a court should flexibly weigh the case's particular circumstances to determine whether the balance of equities so favors the movant that justice requires the court to intervene to preserve the status quo until the merits are determined." United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998) (internal citations and quotation marks omitted). More specifically, the Eighth Circuit Court of Appeals has explained, " Dataphase rejected the notion that the party seeking relief must show `a greater than fifty per cent likelihood that he will prevail on the merits,' holding instead that `where the balance of other factors tips decidedly toward plaintiff a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation.'" Planned Parenthood Minnesota, North Dakota, South Dakota v. Rounds, 530 F.3d 724, 731 (8th Cir. 2008) (citing Dataphase, 640 F.2d at 113). In other words, courts should assess whether the plaintiff has a "fair chance of prevailing." Id. at 732.

Aventure acknowledges that, in Planned Parenthood Minnesota, North Dakota, South Dakota, 530 F.3d at 731-32, the Eighth Circuit Court of Appeals adopted a heightened standard for success, a "likely to prevail on the merits" standard, where the movant seeks a preliminary injunction against the implementation of a state statute. Aventure argues, however, that this standard is not applicable to a preliminary injunction against implementation of a state regulation, because the IUB's promulgation of the challenged regulations did not involve both the legislative and executive branches in the formulation of policy in the name of the public interest, but formulation solely by the executive branch, citing Able v. United States, 44 F.3d 128, 131-32 (2d Cir. 1995) ( per curiam), on which the court in Planned Parenthood relied. Qwest and the IUB, in particular, take issue with this contention. They argue that the Planned Parenthood "substantial likelihood" test, rather than the "fair chance" standard, applies in this case,

because the requested injunctive relief would stay governmental action pursuant to a statute or a regulatory scheme that is the result of the full play of the democratic process.

In Planned Parenthood, the Eighth Circuit Court of Appeals expressly reaffirmed "that a party seeking a preliminary injunction of the implementation of a state statute must demonstrate more than just a `fair chance' that it will succeed on the merits. We characterize this more rigorous standard . . . as requiring a showing that the movant `is likely to prevail on the merits.'" Planned Parenthood, 530 F.3d at 731-32 (quoting Doran v. Salem Inn, Inc., 422 U.S. 922, 931 (1975), and citing Able, 44 F.3d at 131). The court also noted that, "[w]here preliminary injunctions are sought to enjoin city ordinances or administrative actions by federal, state or local government agencies, we note that the Second Circuit has examined the circumstances surrounding such government actions to determine to what extent the challenged action represents `the full play of the democratic process' and, thus, deserves the deference of the traditional test," meaning a "substantial likelihood of success," rather than the "fair chance" standard adopted in Dataphase. Id. at 733 n. 6 (citing Able, 44 F.3d at 131-32).

Here, contrary to Aventure's contentions, the court concludes that the rule-making procedures of the IUB did not involve mere policy-making action of the executive branch, but public debate to determine the public interest. Id.; Able, 44 F.3d at 131-33. This is so, because the IUB promulgated the HVAS Order only after opening the proposed regulations for public comment and attempting to address concerns in those public comments. Thus, the applicable standard for "likelihood of success" here is whether Aventure has "a substantial likelihood of success" on its claims.

Yet, even if the court considers only whether Aventure has a "fair chance" of prevailing on the merits of its claims, the less rigorous standard for which Aventure argues, Aventure's Motion For Preliminary Injunction fails. b. Analysis

Aventure argues that it has a "fair chance" of prevailing on the merits of its claims that the HVAS Order is unreasonably vague, conflicts with federal law by imposing unlawful barriers to competition, unlawfully interferes with interstate commerce, and violates the filed rate doctrine and Iowa law. The court will consider each of these contentions in turn.

i. Vagueness. Aventure argues that the HVAS Order is unconstitutionally vague, because it does not permit the ordinary person to understand what conduct is prohibited and it encourages arbitrary and discriminatory enforcement. Specifically, Aventure argues that the definition of "HVAS" in terms of an increase in total billings is inherently vague and confusing, because it is not clear whether the increase in question is measured against a LEC's total billings or against a LEC's billings for a single IXC. Aventure also argues that the definition of "HVAS" is so vague that it could apply to a carrier that does not provide service to any conference operator. Aventure also argues that "HVAS customer," "HVAS traffic," and "HVAS situation" are not defined in the regulations. Aventure also argues that the ability of IXCs to raise complaints if they simply believe that a situation with the same general concerns exists means that a LEC that tries to comply with the specific provisions of the HVAS Order and does not experience an increase in traffic may nevertheless be found to have violated the regulations. Aventure also argues that the revised regulations make failure to bill high-volume intrastate access charges in accordance with the new regulations synonymous with providing "inadequate telephone service or facilities" and allow an IXC, not just a customer, to initiate proceedings for revocation of a LEC's certificate of authority, but does so without adopting any standard at all. Thus, Aventure contends that the new regulatory scheme is based on generalities with no safe harbor for attempts at technical compliance.

The IUB and the intervening IXCs counter that there is nothing "vague" about the regulations, but they point out that the "vagueness" test for a civil regulation is less strict than the "vagueness" test for a criminal statute or regulation. They contend that the HVAS Order establishes a clear definition of "HVAS" and establishes a clear process for setting HVAS rates and services. More specifically, they contend that the language of the HVAS definition plainly resolves Aventure's supposed confusion about the benchmark for the increase in "total billings." Similarly, they contend that, plainly, the right of an IXC to bring a complaint, if it merely suspects a LEC is engaging in HVAS behavior, must be based on a significant increase in billings, even if the 100 percent threshold is not met, not on no increase, as Aventure fears. Moreover, Verizon points out that none of the public comments about these provisions suggested that they were "vague."

A regulation is not unconstitutionally vague, if "an ordinary person would know what the regulation requires." Trans States Airlines, Inc. v. F.A.A., 439 F.3d 863, 865 (8th Cir. 2006) (citing Thomas v. Hinson, 74 F.3d 888, 889 (8th Cir. 1996), which states the test as whether the regulation "fails to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited"). Put the other way around, "[t]o overcome a vagueness challenge, statutes [and regulations] must `give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,' and `must provide explicit standards for those who apply them.'" Leib v. Hillsborough County Pub. Transp. Comm'n, 558 F.3d 1301, 1310 (11th Cir. 2009) (applying this standard to a challenge to a transportation commission's regulation concerning "limousine" service permits, quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)); G.K. Ltd. v. City of Lake Oswego, 436 F.3d 1064, 1084 (9th Cir. 2006) (noting, in a case involving regulation of signs, "A government regulation may be unconstitutionally vague for two reasons. First, the regulation may fail to give persons of ordinary intelligence adequate notice of what conduct is proscribed; second, it may permit or authorize `arbitrary and discriminatory enforcement.'" (quoting Hill v. Colorado, 530 U.S. 703, 732 (2000)). The degree of vagueness that the Constitution will tolerate depends upon the nature of the regulation; thus, there is greater tolerance in the civil context than the criminal context, such that a civil regulation is unconstitutionally vague only if it is so indefinite as "`really to be no rule or standard at all.'" Id. (quoting Seniors Civil Liberties Ass'n, Inc. v. Kemp, 965 F.2d 1030, 1036 (11th Cir. 1992)). The meaning of the regulation may also be guided by common sense, id. at 1310-11, and plain meaning. Trans States Airlines, 439 F.3d at 865.

Aventure's first claim that the regulations adopted in the HVAS Order are unconstitutionally vague is not even colorable, let alone one on which it has a "fair chance of prevailing." Planned Parenthood, 530 F.3d at 732. Aventure contends that the most glaring deficiency is in the critical definition of "HVAS" as "any service that results in an increase in total billings for intrastate exchange access for a local exchange utility in excess of 100 percent in less than six months." HVAS Order, Utilities Division [199] at 3 (amending 199 IAC 22.1(3)). Aventure argues that this provision is vague, because an ordinary person would not know whether the reference point for the 100 percent increase is its total billings for all IXCs for intrastate exchange access or its total billings for any particular IXC. Looking to plain meaning, TransState Airlines, 439 F.3d at 865, and common sense, Lieb, 558 F.3d at 1310, "total billings for intrastate exchange access for a local exchange utility" means the LEC's total billings, not the LEC's total billings to a particular IXC. To find the ambiguity that Aventure sees, the court would have to read into the regulation language that simply is not there.

Aventure's next "vagueness" argument, that the definition of "HVAS" could apply to a carrier that does not provide service to any conference operator, fares no better. At this point, the court has found nothing in the HVAS Order that indicates that it was the intention of the IUB to limit HVAS regulation to service to any conference operator; rather, as the "Background" in the HVAS Order indicates, service to conference operators (and, specifically, service to "conference bridges") was only one example of the kinds of service that might lead to a sudden increase in the volume of incoming or outgoing interexchange calls, other specific examples being services to chat lines and help desks. HVAS Order at 1-2. Moreover, as the IUB argued at oral arguments, the specific "target" of the new regulations was not the kinds of services provided by a customer of the LEC, but the sudden increase in service minutes for which a LEC might bill an IXC without a comparable increase in service costs for switched access services. Id.; see also id. at 3-8. Thus, the possibility that the HVAS regulations might apply to a LEC that does not service any conference operator does not make the HVAS regulations vague, in any sense.

Although the court acknowledges that the HVAS Order does not expressly define "HVAS customer," "HVAS traffic," or "HVAS situation," the lack of such definitions does not make the regulations unconstitutionally vague. As explained above, looking to plain meaning, TransState Airlines, 439 F.3d at 865, and common sense, Lieb, 558 F.3d at 1310, where the "target" of the new regulations is the sudden increase in service minutes for which a LEC might bill an IXC without a comparable increase in service costs for switched access services, a "HVAS situation" is one involving such an increase in service minutes without a comparable increase in costs, a "HVAS customer" is a customer whose addition causes such an increase in service minutes without a comparable increase in costs, and "HVAS traffic" is the call traffic that results in a sudden increase in service minutes without a comparable increase in costs. In other words, where "HVAS" is not unconstitutionally vague, neither are "HVAS situation," "HVAS traffic," or "HVAS customer."

Similarly, the court does not perceive any possibility that the new regulations are vague, because they create no safe harbor for technical compliance, in that they allow IXCs to raise complaints if they simply believe that a situation with the same general concerns exists, so that a LEC that does not experience an increase in traffic may nevertheless be found to have violated the regulations. In pertinent part, new paragraph 22.14(2)"e" provides, "Any interexchange utility that believes a situation has occurred or is occurring that does not specifically meet the HVAS threshold requirements defined in subrule 22.1(3), but which raises the same general concerns and issues as an [sic] HVAS situation may file a complaint with the board pursuant to these rules." HVAS Order, Utilities Division [199], at 3-5. The "threshold requirements" identified in subrule 22.1(3) are "any service that results in an increase in total billings for intrastate exchange access for a local exchange utility in excess of 100 percent in less than six months." HVAS Order, Utilities Division [199] at 3 (amending 199 IAC 22.1(3)). Thus, plain meaning, TransState Airlines, 439 F.3d at 865, and common sense, Lieb, 558 F.3d at 1310, require that some significant increase in total billings for intrastate exchange access, albeit less than 100 percent, within some period, perhaps less than or greater than six months, is required to "raise[] the same general concerns and issues" as a true "HVAS situation," as defined in Rule 22.1(3).

Finally, Aventure does not have a "fair chance of prevailing," Planned Parenthood, 530 F.3d at 732, on its claim that the revised regulations are unconstitutionally vague, because they make failure to bill high-volume intrastate access charges in accordance with the new regulations synonymous with providing "inadequate telephone service or facilities" and allow an IXC, not just a customer, to initiate proceedings for revocation of a LEC's certificate of authority, purportedly without adopting any standard at all. Reading the pertinent new portion of Rule 22.20(5), in light of plain meaning, TransState Airlines, 439 F.3d at 865, and common sense, Lieb, 558 F.3d at 1310, "failure to bill high-volume intrastate access (HVAS) charges in a manner consistent with the requirements of 199 IAC 22.14," Amended Rule 22.20(5) (emphasis added), is not "standardless," and the remaining, unamended portions of this rule establish the required procedures for the IUB's disposition of the complaint. Id. ("While similar in nature to a complaint filed under rule 199-6.2(476), a petition under this rule shall be addressed by the board under the following procedure and not the procedure found in 199 — Chapter 6.").

While there may be other colorable claims that there are constitutional or other problems with the new regulations, vagueness is not one of those problems, at least on Aventure's present showing. Thus, preliminary injunctive relief is not warranted on the basis of likelihood of success on Aventure's "vagueness" claims.

ii. Barriers to competition. Aventure argues, next, that it has sufficient likelihood of success on its claim that the HVAS Order violates the Supremacy Clause by contravening the federal regulatory scheme under 47 U.S.C. § 253(a), which bars any state or local authority from prohibiting or having the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service. Here, Aventure argues that the HVAS Order empowers IXCs to petition for a LEC's certificate of authority to be rescinded based on failure to bill for access services in accordance with the new rules adopted by the IUB, and if the IUB revoked a certificate for the failure to bill appropriately, a LEC would not be permitted to provide telephone service in the state. The lack of a certificate would also mean that the LEC would be unable to obtain telephone numbers from the NANPA, so that it could not provide interstate or intrastate services.

Aventure also argues that the HVAS Order does not fall within the "saving clause" of § 253(b), because it is not competitively neutral, consistent with § 254, or necessary to preserve and advance universal service. The HVAS Order is not competitively neutral, Aventure argues, because it withdraws from LECs the option to opt into association tariffs, thereby imposing an excessive burden on all carriers that provide HVAS. Aventure also argues that the HVAS Order creates a back door to regulate the rates for all new LECs in Iowa, because all new providers might experience a 100 percent increase in business during their initial six months of operation and, thus, be forced into HVAS negotiations which, if unsuccessful, could result in the IUB setting rates for the new entrant. Finally, Aventure argues that the HVAS Order is not competitively neutral, because it harms the competitive conference calling business by treating conference calling services differently from other services.

The IUB and invervening IXCs assert that Aventure's argument depends on the notion that the hypothetical possibility of a certificate revocation for violation of IUB rules, after notice and opportunity for hearing, is enough to violate 47 U.S.C. § 253(a). They contend, however, that the test is whether there is an "actual or effective prohibition," not merely a hypothetical one. Here, they argue, the challenged rules do not provide for an "automatic" revocation of a certificate, but only the possibility of revocation after due process. They also argue that the new regulations clearly fall within the savings clause in § 253(b), because they are competitively neutral, in that they do not distinguish between incumbents and new entrants at the local exchange level. They point out that small rural LECs are not similarly situated to large incumbents in the first place, so that Aventure's competitive neutrality argument fails on its point of comparison.

The parties agree that the controlling case on this issue is Level 3 Communications, L.L.C. v. City of St. Louis, Mo., 477 F.3d 528 (8th Cir. 2007). That decision states, in pertinent part, the following:

Section 253(a) states: "No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service." Under a plain reading of the statute, we find that a plaintiff suing a municipality under section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition. We again acknowledge that other courts hold otherwise and suggest that possible prohibition will suffice. Qwest Commc'ns Inc. v. City of Berkeley, 433 F.3d 1253, 1256 (9th Cir. 2006); Qwest Corp. v. City of Portland, 385 F.3d 1236, 1239 (9th Cir. 2004), cert. denied, 544 U.S. 1049, 125 S.ct. 2300, 161 L. Ed. 2d 1089 (2005); Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1270 n. 9 (10th Cir. 2004); City of Auburn v. Qwest Corp., 260 F.3d 1160, 1175 (9th Cir. 2001) ; see also Puerto Rico v. Municipality of Guayanilla, 450 F.3d 9, 18 (1st Cir. 2006); Puerto Rico Tel. Co. v. Telecomms. Regulatory Bd., 189 F.3d 1, 9 (1st Cir. 1999).

We disagree with the approach of our sister circuits because they reach a conclusion contrary to a complete analysis of the section. Examination of the entirety of section 253(a) reveals the subject of the sentence, "[n]o State or local statute or regulation, or other State or local legal requirement" is followed by two discrete phrases, one barring any regulation which prohibits telecommunications services, and another barring regulations achieving effective prohibition. However, no reading results in a preemption of regulations which might, or may at some point in the future, actually or effectively prohibit services, as our sister circuits seem to suggest. By inserting the word "that" before "may," as one circuit has done, Puerto Rico v. Municipality of Guayanilla, 450 F.3d at 18 (1st Cir. 2006), or by creative quotation, as another circuit has found convenient, e.g., Qwest Corp. v. City of Portland, 385 F.3d at 1239 (9th Cir. 2004), the most precise meaning of section 253(a) has been distorted.

When the language of a statute is clear, as we believe is the case with section 253(a), our only duty is to enforce the enactment according to its terms. E.g., Lamie v. United States Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). Thus, we hold that a plaintiff suing a municipality under section 253(a) must show actual or effective prohibition, rather than the mere possibility of prohibition. The plaintiff need not show a complete or insurmountable prohibition, see TCG New York, Inc. v. City of White Plains, 305 F.3d 67, 76 (2d Cir. 2002), but it must show an existing material interference with the ability to compete in a fair and balanced market. Cal. Payphone Ass'n, 12 F.C.C.R. 14,191, 14,206, 1997 WL 400726 (FCC) ¶ 31 (July 17, 1997).

Level 3 Communications, 477 F.3d at 532-33.

The court must agree with the IUB and the IXCs that, not only does Aventure have no "substantial likelihood" of success on its claim of a violation of § 253(a), it does not even have a "fair chance" of success on that claim. See Planned Parenthood, 530 F.3d at 731-33 (recognizing these two standards for "success on the merits," each applicable in appropriate circumstances). Aventure's entire argument that the regulations impose illegal barriers to competition within the meaning of § 253(a) depends upon hypothetical, speculative, or possible harms, not a showing of "actual or effective prohibition," because all are based on the possibility of revocation of a LEC's certificate for non-compliance with the HVAS Order. Id. However, before revocation of a certificate or a bar on obtaining telephone numbers from the NANPA could be imposed, the new regulations put in place numerous procedural steps, including notice and the opportunity to be heard. The "revocation" provisions are not self-executing or automatic. Thus, Aventure has cited no "actual or effective" prohibition. This claim does not warrant issuance of a preliminary injunction. iii. Interference with interstate commerce. Aventure argues that the HVAS Order improperly interferes with interstate commerce, because it has extraterritorial reach, in the authorization to revoke certificates, in that the effect of the regulation could be to force LECs to cease providing interstate telecommunications services. Aventure points out that approximately 98% of its traffic is interstate in nature, so that revoking its certificate would have the effect of controlling a considerable amount of conduct beyond Iowa in violation of the Commerce Clause. The burden, Aventure argues, is clearly excessive in relation to the putative local benefit, because the IUB's implicit goal of making unviable competitive conferencing services in Iowa from LECs and conference call providers is heavily outweighed by the harm the HVAS Order imposes by putting LECs out of business and generally impeding competition. Aventure argues that only the national IXCs stand to benefit from using Aventure's services without providing reasonable compensation, but the IUB has not identified any legitimate local public interest that warrants the radical disruption of interstate commerce that would result from enforcement of the HVAS Order.

Under these circumstances, the court never reaches Aventure's "safe harbor" and "competitive neutrality" arguments under § 253(b).

The IUB and the IXCs counter that Aventure offers an absurd argument that Iowa would not be able to revoke Aventure's state-issued certificate for violating Board rules due to an alleged effect on interstate commerce. They point out that the federal regulatory regime left regulation of intrastate telecommunications services to the states. They argue that, to the extent that the hypothetical revocation of a certificate would have any effect on a LEC's ability to offer interstate services, the FCC has delegated to the states its jurisdiction over the North American Numbering Plan. They also argue that Aventure's "commerce clause" or "dormant commerce clause" argument fails, because there is no extraterritorial regulation; instead, Aventure again relies on the consequences of certificate revocation, which can only result from repeated failure to comply with the HVAS rules. To the extent a balancing test is implicated, they argue that Iowa has a strong interest in regulating public utilities, that traffic-pumping schemes disrupt the purposes of the access charge regime, and that the IUB has a legitimate interest in ending such abuse of the system, where there are no countervailing interests to balance.

A statute, and presumably a regulation, may violate the "dormant Commerce Clause" in three ways: "(1) the statute clearly discriminates against interstate commerce in favor of in-state commerce, Jones v. Gale, 470 F.3d 1261, 1267 (8th Cir. 2006); (2) it imposes a burden on interstate commerce that outweighs any benefits received, Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970); or (3) it has the practical effect of extraterritorial control of interstate commerce, see Healy v. Beer Inst., 491 U.S. 324, 336, 109 S.Ct. 2491, 105 L.Ed.2d 275 (1989)." Grand River Enters. Six Nations, Ltd. v. Beebe, 574 F.3d 929, 942 (8th Cir. 2009). Aventure appears to rely on the second and possibly the third kinds of violations.

As the Eighth Circuit Court of Appeals has explained, "State legislation is valid under the Pike balancing test if `the statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental.'" Id. (quoting Pike, 397 U.S. at 142). "The statute will be upheld `unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.'" Id. (again quoting Pike). Aventure has no "substantial likelihood" of success on its "interference with interstate commerce" claim under this test, nor even a "fair chance" of success on that claim. See Planned Parenthood, 530 F.3d at 731-33 (recognizing these two standards for "success on the merits," each applicable in appropriate circumstances). The new regulations plainly serve a legitimate local public interest of preventing abuse of the intrastate tariff regime by traffic-pumping, that is, pursuing high volume access clients to take advantage of tariff rates established on the basis of relatively low volume and relatively high cost. Moreover, any effect of the potential decertification penalties under

the new regulations has, at most, only an incidental effect on interstate commerce. See Grand River Enterprises, 574 F.3d at 942. In short, the burden imposed upon interstate commerce by the possibility of decertification is not clearly excessive in relation to the putative local benefit. Id.

Aventure's "interference with interstate commerce" claim is similarly flawed, to the extent that it is a claim that the new regulations have the practical effect of extraterritorial control of interstate commerce. Id. at 942. The test is not just "extraterritorial reach" of the regulation, as Aventure suggests, but "extraterritorial control of interstate commerce." Id. As the IUB and the IXCs point out, there is perhaps some extraterritorial effect of the new regulations, to the extent that they could lead to decertification of a LEC, making it impossible for the LEC to provide interstate services, but that incidental effect falls far short of any "extraterritorial control" of interstate commerce.

Aventure is not entitled to a preliminary injunction on the basis that it is likely to succeed on this claim, either.

iv. Violation of Iowa law and the filed rate doctrine. Finally, Aventure argues that it has sufficient likelihood of success on its claim that the HVAS Order violates the filed rate doctrine and Iowa law for the court to enter a preliminary injunction against implementation of that order. Aventure argues, as an initial matter, that the IUB has unilaterally preempted the normal tariff filing process by requiring LECs providing HVAS to negotiate with all IXCs simultaneously, rather than following the normal tariff filing procedures. Aventure also argues that IOWA CODE § 476.11, upon which the IUB relies, establishes a complaint-based regulatory system, but does not permit the IUB to establish access rates on a complaint prior to the filing of a tariff. Aventure also argues that the IUB's new regulations conflict with IOWA CODE § 476.29(9), because they improperly expand "failure of a utility to furnish reasonably adequate telephone service and facilities" with failure to bill properly for HVAS.

Aventure argues, further, that the HVAS Order is in irreconcilable conflict with the filed-rate doctrine and the Iowa Code, because it provides that, "No access charges shall apply to the HVAS traffic until an access tariff for HVAS is accepted for filing by the board and has become effective," but the IUB has not limited the application of the HVAS Order to carriers that do not currently have a tariff on file. Thus, Aventure argues, a carrier currently providing service to conference call companies, for example, may be required by statute to bill pursuant to its filed tariff, IOWA CODE § 476.3(1), while simultaneously being found to violate the IUB's new regulations prohibiting the assessment of charges for HVAS traffic until a new tariff is accepted by the IUB. Aventure argues that the conflicting requirements of the filed rate doctrine and the IUB's new regulations means that it is impossible for the carrier to comply with both.

The IUB and intervenors point out that the negotiation of rates for the services in question has been contemplated by Iowa law for half a century. They point out that IOWA CODE § 476.11 already provides that carriers are expected to attempt to reach agreement as to the terms and procedures for the exchange of toll traffic, and if they cannot agree, the IUB has the authority and obligation to determine those terms and conditions. They point out that the Iowa Supreme Court determined that the authority over "terms and conditions" includes authority over financial matters or rates for the exchange of traffic, citing Northwestern Bell Tel. Co. v. Hawkeye State Tel. Co., 165 N.W.2d 771, 775 (Iowa 1969). They also point out that IOWA CODE § 476.4, which requires the filing of tariffs, also establishes the IUB's authority over the procedures that govern those filings. They also argue that the IUB's determination that failing to bill at appropriate rates constitutes

a failure to provide adequate service warranting revocation of a certificate is entitled to deference.

The IUB and the IXCs also argue that the new regulations are not in conflict with the filed rate doctrine. They argue that, if a LEC were to try to charge its normal intrastate access rates for HVAS traffic, it would be violating the filed rate doctrine, because such traffic is no longer included in any tariff, pursuant to the Final Order in the IUB Proceedings.

Again, Aventure has no "substantial likelihood" of success on its "violation of Iowa law and filed rate doctrine" claim, nor even a "fair chance" of success on that claim. See Planned Parenthood, 530 F.3d at 731-33 (recognizing these two standards for "success on the merits," each applicable in appropriate circumstances). First, contrary to Aventure's contention that "terms and conditions" within the IUB's authority under § 476.11 do not include financial matters, such as rates, the Iowa Supreme Court long ago settled the question, under a nearly identical predecessor statute, finding that "terms and conditions" include, but are not limited to, financial matters. Northwestern Bell Tel. Co., 165 N.W.2d at 775 (interpreting former IOWA CODE § 490A.11). Section 476.11 also expressly establishes a procedure involving negotiation, rather than the filing of a tariff, as the first step in the determination of rates, so that imposing such a requirement for HVAS does not, as Aventure contends, preempt the normal tariff filing process. Nor is amended Rule 22.20(5), which equates failure to bill for HVAS appropriately with failure to furnish reasonably adequate telephone service and facilities, in irreconcilable conflict with IOWA CODE § 476.29(9). Issuance of bills is reasonably understood to be part of a LEC's services, and the IUB's interpretation of what falls within the scope of § 475.29(9) is entitled to deference. See Iowa Telecommunications Ass'n v. City of Haywarden, 589 N.W.2d 245 (Iowa 1999).

IOWA CODE § 476.11 provides, in pertinent part, as follows: "Whenever toll connection between the lines or facilities of two or more telephone companies has been made, or is demanded under the statutes of this state and the companies concerned cannot agree as to the terms and procedures under which toll communications shall be interchanged, the board upon complaint in writing, after hearing had upon reasonable notice, shall determine such terms and procedures." The predecessor statute discussed in Northwestern Bell, IOWA CODE § 490A.11, provided as follows: "`Whenever toll connection between the lines or facilities of two or more telephone companies has been made, or is demanded under the statutes of this state and the companies concerned cannot agree as to the terms and procedures under which toll communications shall be interchanged, the commission upon complaint in writing, after hearing had upon reasonable notice, shall determine such terms and procedures." See Northwestern Bell, 165 N.W.2d at 774-75.

IOWA CODE § 476.29(9) provides, in pertinent part, as follows: "A certificate may, after notice and opportunity for hearing, be revoked by the board for failure of a utility to furnish reasonably adequate telephone service and facilities."

Second, the court does not find even a "fair chance" that the new regulations violate the filed rate doctrine. IOWA CODE § 476.5 does provide, in pertinent part, as follows:

No public utility subject to rate regulation shall directly or indirectly charge a greater or less compensation for its services than that prescribed in its tariffs, and no such public utility shall make or grant any unreasonable preferences or advantages as to rates or services to any person or subject any person to any unreasonable prejudice or disadvantage.

IOWA CODE § 476.5. However, as the IUB and the IXCs point out, Aventure currently has no filed tariff for HVAS, as its tariff based on the associational rate was invalidated by the new regulations and by the Final Order in the IUB Proceedings. The court also simply does not see how requiring that HVAS be subject to a separate tariff violates the filed rate doctrine, where the regulations ultimately require that a tariff rate be filed for such services.

Thus, this claim also does not warrant preliminary injunctive relief.

2. Threat of irreparable harm

Notwithstanding that the court has found no likelihood of success on any of Aventure's claims, the court will consider, at least briefly, the other requirements for preliminary injunctive relief, assuming that, contrary to its conclusions, Aventure does have some sufficient likelihood of success. The court turns, therefore, to the second " Dataphase factor," the threat of irreparable harm to the movant absent the injunction. Dataphase, 640 F.2d at 114.

a. Applicable standards

In this circuit, "a party moving for a preliminary injunction is required to show the threat of irreparable harm," Baker Elec. Co-op., 28 F.3d at 1472 (citing Modern Computer Sys., 871 F.2d at 738, and Dataphase), and the lack of irreparable harm is sufficient ground for denying or vacating a preliminary injunction. Aswegan v. Henry, 981 F.2d 313, 314 (8th Cir. 1992) (citing Modern Computer Sys., 871 F.2d at 738). Stated differently, "[t]he threshold inquiry is whether the movant has shown the threat of irreparable injury." Glenwood Bridge, 940 F.2d at 371 (quoting Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir. 1987)). More specifically, the Eighth Circuit Court of Appeals has held that

the movant's failure to sustain its burden of proving irreparable harm ends the inquiry "and the denial of the injunctive request is warranted." [ Gelco, 811 F.2d] at 420. Accord Modern Computer Sys., 871 F.2d at 738; Dataphase, 640 F.2d at 114 n. 9. We must inquire, then, whether [the movant] has met its burden of proving that it will suffer irreparable harm absent a preliminary injunction.

Id. The Eighth Circuit Court of Appeals has also explained,

"[T]he basis of injunctive relief in the federal courts has always been irreparable harm and inadequacy of legal remedies." Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 506-07 (1959). Thus, to warrant a preliminary injunction, the moving party must demonstrate a sufficient threat of irreparable harm. See Adam-Mellang v. Apartment Search, Inc., 96 F.3d 297, 299 (8th Cir. 1996).

Bandag, Inc. v. Jack's Tire Oil, Inc., 190 F.3d 924, 926 (8th Cir. 1999); see Baker Elec. Co-op., 28 F.3d at 1472 ("No single factor in itself is dispositive; in each case all of the factors must be considered to determine whether on balance, they weigh towards granting the injunction. However, a party moving for a preliminary injunction is required to show the threat of irreparable harm.") (internal quotation marks and citations omitted).

Sufficient showing on this second factor in the Dataphase analysis can be made, for example, by showing that the movant has no adequate remedy at law. Baker Elec. Co-op., 28 F.3d at 1473. Conversely, where the movant has an adequate legal remedy, a preliminary injunction will not issue. Frank B. Hall Co. v. Alexander Alexander, Inc., 974 F.2d 1020, 1025 (8th Cir. 1992) (but finding in that case that the district court's conclusion that there was an adequate remedy was based on an erroneous legal premise, and requiring a proper balance of Dataphase factors).

b. Arguments of the parties

Aventure argues that, because it cannot obtain damages for the IUB's violation of federal law, even if it prevails on its claims, it has no adequate remedy at law, which is sufficient, standing alone, to satisfy the "irreparable harm" requirement for a preliminary injunction. Moreover, Aventure argues that the denial of a constitutional right is sufficient to demonstrate irreparable harm. However, Aventure argues that it faces more concrete irreparable harms. First among these, Aventure argues, is the failure of the IUB to establish a baseline for determining whether Aventure has experienced an increase in traffic that would satisfy the IUB's definition of HVAS, so that it has no way of knowing when it must comply with the new regulations. Aventure also argues that it will be forced to forego billing for interstate access services pursuant to its tariff during a negotiation process, and it would never be able to recover those lost revenues, because the HVAS Order does not permit retroactive application of the rate ultimately negotiated for HVAS. Aventure also contends that it could lose its certificate to provide telecommunications services in Iowa and, if it does, it might never be able to recover its business, because of the loss of customers and the injury to its reputation. Finally, Aventure argues that the HVAS Order has twice been used to deny it certification to serve the Sioux City, Iowa, area.

The IUB and the IXCs argue that Aventure's claims of a threat of immediate harm ring hollow, where it waited nearly two months, until the eve of the effective date of the new regulations, before moving to enjoin them. They also contend that Aventure's claims of irreparable harm are undermined by the insufficiency of Aventure's claims for relief. They also contend that the purely hypothetical possibility of revocation of Aventure's certificate cannot demonstrate the required threat of irreparable harm. They argue that Aventure's reluctance to state its intent to comply with the HVAS Order is only one of several reasons that the IUB has denied or has required further investigation of Aventure's tariff applications to serve the Sioux City, Iowa, area.

c. Analysis

Aventure's arguments concerning "irreparable harm" are premised on the viability of its claims, but the court has not found any of those claims to be viable. Thus, Aventure has no denial of constitutional rights by which it can be harmed, and cannot be harmed by the lack of a "baseline" for determining whether it fits the HVAS decision, where the court found that the regulation did, indeed, plainly state the applicable baseline. Moreover, even if there is a possibility that Aventure could lose its certificate, that possibility depends upon Aventure repeatedly failing to comply with the new regulations and having been found to be derelict for not doing so after notice and an opportunity to be heard. Aventure cannot reasonably argue that, where avoidance of the possible harm lies within its power, and it will be afforded adequate due process before the prospective harm, revocation of its certificate, is imposed, it faces any immediate threat of irreparable harm. Baker Elec. Co-op., 28 F.3d at 1472. The court also rejects Aventure's contention that it is being irreparably harmed by use of the new HVAS regulations to deny or delay acceptance of its new tariffs. A review of the record shows that Aventure's reluctance to comply with the HVAS regulations is but one of several reasons that the IUB has delayed action on Aventure's requests for approval of tariffs. Other reasons include Aventure's failure to comply with other IUB regulations or the IUB's requests for information.

This factor does not weigh in favor of a preliminary injunction.

3. Balance of harms a. Applicable standards

The third " Dataphase factor" is the "balance of harms." See Dataphase, 640 F.2d at 114 (the third factor is the balance between the harm and the injury that the injunction's issuance would inflict on other interested parties). The "balance of harms" analysis is not identical to the "irreparable harm" analysis. Pottgen v. Missouri State High Sch. Activities Ass'n, 40 F.3d 926, 929 (8th Cir. 1994). Irreparable harm focuses on the harm or potential harm to the movant of the opposing party's conduct or threatened conduct. Dataphase, 640 F.2d at 114. In contrast, the balance of harms analysis examines the harm of granting or denying the injunction upon both of the parties to the dispute and upon other interested parties, including the public. Id.; see also Glenwood Bridge, 940 F.2d at 372 (considering the effect of granting or denying the injunction on the public's interest in a public works construction project as well as upon the parties in the balance of harm analysis); Modern Computer Sys., 871 F.2d at 737-38 (harm to other interested parties also considered).

In conducting the "balance of harms" analysis required under Dataphase, it is obvious that an illusory harm to the movant will not outweigh any actual harm to the non-movant. Frank B. Hall, 974 F.2d at 1023. To determine what must be weighed, the court finds that courts of this circuit have looked at the threat to each of the parties' rights that would result from granting or denying the injunction. Baker Elec. Co-op., 28 F.3d at 1473. Also, the potential economic harm to each of the parties and to interested third parties of either granting or denying the injunction is relevant. Id. Another consideration in the balance of harms calculus is whether the defendant has already voluntarily taken remedial action. Sanborn Mfg., 997 F.2d at 489. Where the non-movant has taken such action, the balance of harms is readjusted, because the potential for economic or other harm to the movant has been eliminated. Id. (citing Burndy Corp. v. Teledyne Indus., Inc., 748 F.2d 767, 774 (2d Cir. 1984), which held that injunctive relief was "wholly unnecessary" when the defendant had voluntarily brought his product labeled with the UL mark into compliance with UL standards and where there was not a likelihood of repetition or hazard to the public). Similarly, present harm as the result of past misconduct is not sufficient to justify the injury to the non-movant of granting a preliminary injunction requiring some additional corrective action, because such relief "goes beyond the purpose of a preliminary injunction." Id. at 490. b. Arguments of the parties

Aventure argues that it is "clear" that the harms it has alleged significantly outweigh any conceivable harm to other interested parties. This is so, Aventure argues, because the entry of a preliminary injunction cannot harm a state agency, which would only lose its right to hear complaints and establish rates under the new rules. Aventure also argues that no harm will befall the state or to the IXCs, because granting the preliminary injunction will only maintain the status quo. Aventure notes that most IXCs have not paid Aventure for intrastate access charges for many months, or even years, so that they cannot demonstrate that any harm would flow to them from restricting application of the New HVAS rules.

The IUB and the IXCs argue that Aventure has little, if any, potential harm, if no preliminary injunction issues, because Aventure is harmed, at most, by delay in collection of revenues. They argue that the countervailing interest is that a preliminary injunction would allow Aventure to inflict injury on IXCs by billing at unreasonable rates for HVAS, which the IXCs may never be able to recover, even if refunds are ordered.

c. Analysis

Even if Aventure had some likelihood of success on the merits of its claims, the court concludes that the balance of harms does not weigh in favor of issuance of a preliminary injunction. The potential harm to Aventure, if the regulations are implemented unimpeded is not, as Aventure suggests, its imminent demise. Indeed, the speculative possibility of revocation of its certificate borders on, if not crosses the line, into realm of an illusory harm that will not outweigh any actual harm to the non-movant. Frank B. Hall, 974 F.2d at 1023. On the other hand, the harm to the IUB of an injunction is the IUB's inability to administer reasonable rates for telecommunications services, and the harm to the IXCs is continued payment of unreasonable rates for HVAS. In balance, the potential harm to the IUB and the IXCs of enjoining the regulations outweighs the illusory harm to Aventure if no injunction is entered. This factor also does not weigh in favor of a preliminary injunction.

4. The public interest

The final " Dataphase factor" is "the public interest." See Branstad I, 118 F. Supp. 2d at 943; see also Pottgen, 40 F.3d at 929; Dataphase, 640 F.2d at 114. The "public interest" factor frequently invites the court to indulge in broad observations about conduct that is generally recognizable as costly or injurious. Id. However, there are more concrete considerations, such as reference to the purposes and interests any underlying legislation was intended to serve, a preference for enjoining inequitable conduct, and the public's interest in minimizing unnecessary costs to be met from public coffers. B D I, 231 F. Supp. 2d at 912 (citations and quotation marks omitted).

Aventure argues that there is no benefit to the public from implementation or enforcement of an order that exceeds the IUB's authority and that is unconstitutional. Aventure also argues that there will be no negative impact on the public interest, if Aventure is not forced to enter into negotiations or if the IUB is not allowed to set rates for intrastate access services during the pendency of this case. The IUB and the IXCs, on the other hand, argue that there is a significant public interest in ending abuse of the existing rates regime, which allows LECs to impose unreasonable rates for HVAS, as well as an interest in allowing properly promulgated regulations to go into effect.

The court agrees with the IUB and the IXCs that the public interest factor also does not favor issuance of a preliminary injunction. The public interest favors allowing regulations promulgated for the ostensible purpose of maintaining a reasonable relationship between rates and costs to go into effect, in the absence of an adequate showing of any of the deleterious effects that Aventure alleges the public will suffer from such regulations.

III. CONCLUSION

Upon consideration of the pertinent factors in light of the arguments of the parties and the record in the case, the court denies Aventure's August 3, 2010, Motion For Preliminary Injunction (docket no. 12). On the other hand, the Motions To Intervene by Verizon (docket no. 20), Qwest (docket no. 24), AT T (docket no. 33), and Sprint (docket no. 35) are granted.

IT IS SO ORDERED.

DATED this 17th day of August, 2010.