American Broadcasting Companies, Inc. v. F.C.C., Nos. 1588

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore MESKILL and KEARSE, Circuit Judges, and MARKEY; MARKEY
Citation662 F.2d 155
PartiesAMERICAN BROADCASTING COMPANIES, INC., CBS Inc., National Broadcasting Company, Inc., Ad Hoc Telecommunications Users Committee, and United Press International, Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Telephone and Telegraph Company, and The Associated Press, Intervenors. to 1590, Dockets 81-4080, 81-4082, and 81-4084.
Docket NumberNos. 1588
Decision Date19 October 1981

Page 155

662 F.2d 155
AMERICAN BROADCASTING COMPANIES, INC., CBS Inc., National
Broadcasting Company, Inc., Ad Hoc
Telecommunications Users Committee, and
United Press International,
Inc., Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION and United States of
America, Respondents,
American Telephone and Telegraph Company, and The Associated
Press, Intervenors.
Nos. 1588 to 1590, Dockets 81-4080, 81-4082, and 81-4084.
United States Court of Appeals,
Second Circuit.
Argued Aug. 12, 1981.
Decided Oct. 19, 1981.

Edward P. Taptich, Washington, D.C. (Joseph M. Kittner, Lawrence J. Movshin, James S. Blaszak, William K. Keane, McKenna, Wilkinson & Kittner, Washington, D.C., of counsel), for petitioners ABC, Inc., CBS Inc., NBC, Inc. and Ad Hoc Telecommunications Users Committee.

Donald P. Zeifang, Washington, D.C. (James C. Schultz, Jeffrey D. Southmayd, Washington, D.C., of counsel), for petitioner United Press International.

Robert Kaufman, New York City of counsel, for petitioner ABC, Inc.

Page 156

Joseph DeFranco, Washington, D.C., of counsel, for petitioner CBS Inc.

Howard Monderer, Washington, D.C., of counsel, for petitioner NBC, Inc.

John E. Ingle, Deputy Associate Gen. Counsel, F.C.C. Washington, D.C. (Stephen A. Sharp, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, Jane E. Mago, Counsel, F.C.C., Washington, D.C., of counsel), for respondent F.C.C.

James H. Laskey, Dept. of Justice, Washington, D.C. (William F. Baxter, Asst. Atty. Gen., Robert B. Nicholson, Dept. of Justice, Washington, D.C., of counsel), for respondent United States of America.

Jules M. Perlberg, Chicago, Ill. (Alfred A. Green, New York City, Raymond F. Burke, Saul Fisher, Bedminster, N. J., David J. Lewis, Sidley & Austin, Washington, D.C., of counsel), for intervenor American Telephone and Telegraph Co.

Aloysius B. McCabe, Michael Yourshaw, Robert J. Butler, Kirkland & Ellis, Washington, D.C., of counsel, for intervenor The Associated Press.

Before MESKILL and KEARSE, Circuit Judges, and MARKEY, Chief Judge of the United States Court of Customs and Patent Appeals. *

MARKEY, Chief Judge:

Background

AT&T is a telecommunications common carrier, offering private line services, Message Telecommunications Services (MTS), and Wide Area Telecommunications Services (WATS).

Concerned that AT&T's monopoly services (MTS and WATS) might be providing a cross-subsidy for its private line offerings, the FCC instituted an investigation in 1965 into the lawfulness of all AT&T rates and services. A primary goal of that investigation was development of a costing methodology which would permit AT&T to compete effectively but prevent it from engaging in cross-subsidization.

In 1976, in Docket 18128, the FCC established general principles to govern the development and evaluation of rates for AT&T's various services. One such principle required that AT&T set rates for individual services that would produce for each an authorized system-wide rate of return.

Finding the Docket 18128 principles inadequate, on January 6, 1981 the FCC adopted an Interim Cost Allocation Manual (ICAM) listing detailed procedures which AT&T was to follow in allocating its costs among four broad service categories private line services, MTS, WATS, and Exchange Access Facilities. The FCC ordered that each category earn the authorized interstate rate of return.

On February 13, 1981, AT&T filed tariff revisions proposing an across-the-board rate increase of 16.4% covering each of its various private line services. 1 AT&T provided cost data showing that the increase would result in the private line category earning in the aggregate the then authorized interstate rate of 10.5%, but submitted no information relating to the individual earnings level of each of the private line services.

Petitioners and other private line users requested the FCC to reject or suspend the tariff revisions, urging that because AT&T failed to provide cost justification for each of the various private line service rates affected by the increase, the tariff filing was defective and in violation of § 201(b) of the Communications Act (Act) (47 U.S.C.

Page 157

§ 201(b)) 2 and FCC Rule 61.38 (47 C.F.R. § 61.38). 3 Petitioners did not file a complaint under § 208 of the Act. 4

The FCC declined to reject, or suspend and investigate, the tariff filing, but acknowledged that AT&T remained obligated to fully justify its tariff rates in individual tariff proceedings. Petitioners then brought this appeal, asserting that the FCC had unlawfully abdicated its statutory obligation under § 201(b) to ensure just and reasonable rates.

Issue

Whether this court has jurisdiction to review the FCC's refusal to reject, or suspend and investigate, tariff filings.

OPINION

A statute, 28 U.S.C. § 2342, limits the jurisdiction of the courts of appeals to review of final decisions of the FCC. In denying petitions to reject, or suspend and investigate, AT&T's tariff filings, the FCC did not rule here on the lawfulness of those tariffs, that is, on whether the tariffs comply with § 201(b). The FCC exercised its discretionary authority under § 204 of the Communications Act to allow tariffs to go into effect without suspension and investigation. 5 That exercise constitutes a preliminary decision within the Commission's exclusive discretion. It does not result in a final order reviewable in this court.

In Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 83 S.Ct. 984, 10 L.Ed.2d 52 (1963) (Arrow), the Court held Interstate Commerce Commission exercises of its suspension powers nonreviewable. The Court pointed out that judicial review at that stage would undermine the...

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5 practice notes
  • American Broadcasting Companies, Inc. v. F. C. C., No. 350
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 27, 1982
    ...review of the proposed tariffs. We lack jurisdiction to review the FCC's decision to forego pre-effectiveness review. ABC, Inc. v. FCC, 662 F.2d 155 (2d Cir. 1981) (hereinafter "ABC I "). Further, we find no violation of the APA in the FCC's grant of AT&T's special permission ......
  • US W. Communications v. Hamilton, Nos. 99-35462
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 12, 2000
    ...no authority to review the guidelines of a non-governmental organization such as the CVSA."). In American Broad. Cos., Inc. v. FCC, 662 F.2d 155 (2d Cir. 1981), the court declined to exercise its jurisdiction because the challenged agency action was "a preliminary decision within ......
  • Maine Public Advocate v. F.C.C., Nos. 87-1213
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 14, 1987
    ...American Broadcasting Companies, Inc. v. F.C.C., 682 F.2d 25 (2d Cir.1982) (F.C.C.); American Broadcasting Companies, Inc. v. F.C.C., 662 F.2d 155 (2d Cir.1981) (F.C.C.); Aeronautical Radio, Inc. v. F.C.C., 642 F.2d 1221 (D.C.Cir.1980), cert. denied, 451 U.S. 920, 976, 101 S.Ct. 1998, 68 L.......
  • Leal v. F.C.C.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 3, 1985
    ...appeals have jurisdiction to review only final decisions of the Federal Communications Commission. American Broadcasting Companies v. FCC, 662 F.2d 155, 157 (2nd Cir. 1981); 28 U.S.C. Sec. 2342(1); 47 U.S.C. Sec. It is ORDERED that the petition for review be and hereby is dismissed for lack......
  • Request a trial to view additional results
5 cases
  • American Broadcasting Companies, Inc. v. F. C. C., No. 350
    • United States
    • U.S. Court of Appeals — Second Circuit
    • May 27, 1982
    ...review of the proposed tariffs. We lack jurisdiction to review the FCC's decision to forego pre-effectiveness review. ABC, Inc. v. FCC, 662 F.2d 155 (2d Cir. 1981) (hereinafter "ABC I "). Further, we find no violation of the APA in the FCC's grant of AT&T's special permission ......
  • US W. Communications v. Hamilton, Nos. 99-35462
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 12, 2000
    ...no authority to review the guidelines of a non-governmental organization such as the CVSA."). In American Broad. Cos., Inc. v. FCC, 662 F.2d 155 (2d Cir. 1981), the court declined to exercise its jurisdiction because the challenged agency action was "a preliminary decision within ......
  • Maine Public Advocate v. F.C.C., Nos. 87-1213
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • September 14, 1987
    ...American Broadcasting Companies, Inc. v. F.C.C., 682 F.2d 25 (2d Cir.1982) (F.C.C.); American Broadcasting Companies, Inc. v. F.C.C., 662 F.2d 155 (2d Cir.1981) (F.C.C.); Aeronautical Radio, Inc. v. F.C.C., 642 F.2d 1221 (D.C.Cir.1980), cert. denied, 451 U.S. 920, 976, 101 S.Ct. 1998, 68 L.......
  • Leal v. F.C.C.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 3, 1985
    ...appeals have jurisdiction to review only final decisions of the Federal Communications Commission. American Broadcasting Companies v. FCC, 662 F.2d 155, 157 (2nd Cir. 1981); 28 U.S.C. Sec. 2342(1); 47 U.S.C. Sec. It is ORDERED that the petition for review be and hereby is dismissed for lack......
  • Request a trial to view additional results

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