Cellular Telecommunications & Internet v. F.C.C., 02-1264.

Decision Date06 June 2003
Docket NumberNo. 02-1264.,02-1264.
PartiesCELLULAR TELECOMMUNICATIONS & INTERNET ASSOCIATION and Cellco Partnership, d/b/a Verizon Wireless, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Cingular Wireless LLC, et al., Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

Andrew G. McBride argued the cause for petitioners. With him on the briefs were John T. Scott III, Michael F. Altschul, and R. Michael Senkowski.

John E. Ingle, Deputy Associate General Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were R. Hewitt Pate, Acting Assistant Attorney General, U.S. Department of Justice, Catherine G. O'Sullivan and Andrea Limmer, Attorneys, John A. Rogovin, Acting General Counsel, Federal Communications Commission, Richard K. Welch, Associate General Counsel, and Rodger D. Citron, Counsel. Stewart A. Block, Counsel, entered an appearance.

L. Andrew Tollin, L. Charles Keller, Craig E. Gilmore, Glenn S. Rabin, Douglas I. Brandon, Laura R. Handman, Carol L. Tacker, Luisa L. Lancetti, and Lawrence J. Movshin were on the brief for intervenors Cingular Wireless LLC, et al., in support of petitioners. Kenneth D. Patrich entered an appearance.

James Bradford Ramsay was on the brief for intervenor National Association of Regulatory Utility Commissioners in support of respondent.

Richard P. Bress and James H. Barker were on the brief for intervenor Leap Wireless International, Inc., urging affirmance.

Before: EDWARDS, RANDOLPH and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

Currently, a wireless telephone customer who wishes to switch from one wireless service provider to another must also change telephone numbers. In 1996, the Federal Communications Commission ("Commission" or "FCC") promulgated regulations requiring wireless carriers to provide "number portability" — the ability of consumers to keep their phone numbers when they switch wireless carriers — and set a compliance date of June 30, 1999. See Telephone Number Portability, First Report and Order and Further Notice of Proposed Rule, 11 F.C.C.R. 8352, 1996 WL 400225 (1996) ("First Report and Order"); 47 C.F.R. § 52.31. In 1999, the Commission granted a request from petitioner Cellular Telecommunications & Internet Association ("CTIA"), pursuant to 47 U.S.C. § 160(a), for temporary forbearance from enforcement of the Commission's wireless number portability rules, and extended the compliance deadline to November 24, 2002. See CTIA's Petition for Forbearance From Commercial Mobile Radio Services Number Portability Obligations, Memorandum Opinion and Order, 14 F.C.C.R. 3092, 1999 WL 58618 (1999) ("Temporary Forbearance Order"). Petitioner Verizon Wireless then sought permanent forbearance from the Commission's wireless number portability rules. On July 26, 2002, the Commission denied Verizon Wireless' forbearance petition, but extended the enforcement deadline to November 24, 2003. See Verizon Wireless's Petition for Partial Forbearance from the Commercial Mobile Radio Services Number Portability Obligation, Memorandum Opinion and Order, 17 F.C.C.R. 14,972, 2002 WL 1733284 (2002) ("Order").

In the instant case, petitioners CTIA and Verizon Wireless seek review of the Commission's Order denying permanent forbearance from enforcement of the Commission's 1996 rules requiring wireless carriers to provide number portability. Petitioners challenge the Commission's statutory authority to impose wireless number portability. Petitioners also contend that the Commission misinterpreted and misapplied § 10(a) of the Telecommunications Act of 1996, 47 U.S.C. § 160(a), which requires the Commission to forbear from enforcement of its regulations if three standards are met, including the condition that "enforcement ... is not necessary for the protection of consumers."

We dismiss the petition for review in part and deny the petition in part. We first find that petitioners' challenge to the FCC's authority to impose wireless number portability is time-barred. A petition for judicial review to challenge a final order of the Commission must be filed "within 60 days after its entry." See 28 U.S.C. § 2344; see also 47 U.S.C. § 402(a). The FCC promulgated the number portability rules in July 1996 and the petition for review in this case was not filed until August 2002. The petition for review is clearly untimely. The statutory time limit is jurisdictional. Therefore, we are constrained to dismiss the untimely petition for review for want of jurisdiction.

On petitioners' challenge to the Commission's decision not to forbear from enforcement of the wireless number portability rules, we conclude that the Commission's interpretation and application of the second prong of the enforcement test under § 10(a) ("enforcement ... is not necessary for the protection of consumers") was permissible and reasonable. The statutory term "necessary" does not have a plain meaning under Step One of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). And, in the context of the forbearance statute, "necessary" certainly cannot plainly mean "absolutely required" or "indispensable," as petitioners would have it, for that would leave the second prong of the forbearance test with no obvious applications. The Commission construed the term "necessary" to mean that there must be a strong connection between what the agency does by way of regulation and what the agency permissibly seeks to achieve with that regulation. Under this reasonable interpretation of the forbearance statute, the Commission found that number portability rules are required to achieve the desired statutory goal of consumer protection. The Commission therefore did not err in declining to forbear from enforcement of the wireless number portability rules. We therefore deny the petition for review of the Commission's forbearance decision.

I. BACKGROUND

Congress passed the Telecommunications Act of 1996, Pub.L. No. 104-104, 110 Stat. 56, codified at 47 U.S.C. § 151 et seq. ("the 1996 Act" or "the Act"), to "promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies." 1996 Act, preamble. In pursuit of that goal, § 10(a) directs that the Commission shall forbear from applying any regulation or any provision of this chapter to a telecommunications carrier or telecommunications service, or class of telecommunications carriers or telecommunications services, in any or some of its or their geographic markets, if the Commission determines that—

() enforcement of such regulation or provision is not necessary to ensure that the charges, practices, classifications, or regulations by, for, or in connection with that telecommunications carrier or telecommunications service are just and reasonable and are not unjustly or unreasonably discriminatory;

() enforcement of such regulation or provision is not necessary for the protection of consumers; and

() forbearance from applying such provision or regulation is consistent with the public interest.

47 U.S.C. § 160(a).

The Act defines "number portability" as "the ability of users of telecommunications services to retain, at the same location, existing telecommunications numbers without impairment of quality, reliability, or convenience when switching from one telecommunications carrier to another." Id. § 153(30). Section 251(b) of the Act requires all local exchange carriers "to provide, to the extent technically feasible, number portability in accordance with requirements prescribed by the Commission." Id. § 251(b)(2). The Act defines "local exchange carrier" ("LEC") as

any person that is engaged in the provision of telephone exchange service or exchange access. Such term does not include a person insofar as such person is engaged in the provision of a commercial mobile service under section 332(c) of this title, except to the extent that the Commission finds that such service should be included in the definition of such term.

Id. § 153(26). The Commission has not made a determination that commercial mobile radio service ("CMRS" or "wireless") service should be included in the definition of "local exchange carrier." The Act thus does not expressly require wireless carriers to provide number portability.

On July 2, 1996, the Commission promulgated rules requiring wireless carriers to provide number portability. See First Report and Order, 11 F.C.C.R. 8352. Although wireless carriers are not LECs, the Commission, in its First Report and Order, concluded that it had independent authority, under 47 U.S.C. §§ 151, 152, 152 & 332, to require wireless carriers to provide number portability. Id. at 8355. The Commission set a compliance date of June 30, 1999 for wireless carriers. Id. On petition for reconsideration, the Commission reaffirmed its principal findings. See Telephone Number Portability, First Memorandum Opinion and Order on Reconsideration, 12 F.C.C.R. 7236, 7315-17, 1997 WL 106479 (1997) ("First Reconsideration Order").

On May 30, 1997, petitioner Verizon Wireless' predecessor in interest, Bell Atlantic NYNEX Mobile, filed a petition for review of the Commission's wireless number portability rules in this court, challenging the Commission's authority to impose wireless number portability. The petition was supported by a number of intervenors, including petitioner CTIA. The case was transferred to the Tenth Circuit and briefed.

Meanwhile, on December 16, 1997, CTIA filed a forbearance petition with the Commission under § 10(a) of the Act, 47 U.S.C. § 160(a), seeking...

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