ITT World Communications, Inc. v. F.C.C., s. 80-1721
| Decision Date | 01 February 1983 |
| Docket Number | 80-2324 and 80-2401,Nos. 80-1721,s. 80-1721 |
| Citation | 226 U.S.App.D.C. 67,699 F.2d 1219 |
| Parties | ITT WORLD COMMUNICATIONS, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Southern Pacific Communications Company, RCA Global Communications, Inc., Intervenors. ITT WORLD COMMUNICATIONS, INC. v. FEDERAL COMMUNICATIONS COMMISSION, Appellant. ITT WORLD COMMUNICATIONS, INC., Appellant, v. FEDERAL COMMUNICATIONS COMMISSION. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Grant S. Lewis, New York City, with whom John S. Kinzey and Howard A. White, New York City, were on the brief for ITT World Communications, Inc., petitioner-appellant in 80-1721 and 80-2401 and cross-appellee in 80-2324. Samuel J. Abate, New York City, also entered an appearance in 80-1721 and Eugene R. Fidell, Washington, D.C., also entered an appearance in 80-2324 and 80-2401.
Gregory M. Christopher, Counsel, F.C.C., Washington, D.C., for respondents. Stephen A. Sharp, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, John E. Ingle, Deputy Associate Gen. Counsel, Nancy E. Stanley, Asst. Gen. Counsel, Jane E. Mago, Counsel, F.C.C., and Barry Grossman and Marion L. Jetton, Attys., Dept. of Justice, Washington, D.C., were on the brief for respondents in 80-1721. Robert R. Bruce, John P. Greenspan, and Keith H. Fagan, Attys., F.C.C., Washington, D.C., also entered an appearance for respondents in 80-1721.
Frank A. Rosenfeld, Atty., Dept. of Justice, Washington, D.C., with whom Charles F.C. Ruff, U.S. Atty., Washington, D.C., at the time the brief was filed, and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellee in 80-2401 and cross-appellant in 80-2324.
Alexander P. Humphrey, Washington, D.C., entered an appearance for intervenor, RCA Global Communications, Inc., in 80-1721.
John V. Kenny, Washington, D.C., entered an appearance for intervenor, Southern Pacific Communications Co., in 80-1721.
Before TAMM and MIKVA, Circuit Judges, and BAZELON, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
TABLE OF CONTENTS
Page
Introduction ................................... 1223
I. BACKGROUND ............................... 1224
A. The Closed CP Meetings ............... 1224
B. The Rulemaking Proceeding ............ 1226
C. The District Court Action ............ 1228
II. THE ULTRA VIRES COUNT .................... 1229
A. Subject Matter Jurisdiction .......... 1229
B. Standing ............................. 1231
C. Ripeness ............................. 1232
III. THE FOIA COUNT ........................... 1233
A. Material Pertaining to Commission
Docket Proceedings ................... 1234
B. Material Preparatory to the CP
Discussions .......................... 1236
C. Material Reporting the CP
Discussions .......................... 1238
IV. THE SUNSHINE ACT COUNT ................... 1239
A. The Authorization Requirement ........ 1240
B. "Conduct or Disposition of Official
Agency Business" ..................... 1241
1. "Official Agency Business" ........ 1241
2. Meetings "of" the Agency .......... 1242
3. "Informal Background
Discussions" ..................... 1243
C. Policy Arguments ..................... 1244
V. THE RULEMAKING DENIAL .................... 1245
A. The Sunshine Act ..................... 1246
B. The Commission's Authority ........... 1246
C. Delegation of Authority to the
Telecommunications Committee ......... 1248
CONCLUSION ..................................... 1249
These appeals present a variety of important questions arising under the Communications Act of 1934, 1 the Freedom of Information Act ("FOIA"), 2 the Government in the Sunshine Act ("Sunshine Act"), 3 and the Administrative Procedure Act ("APA"). 4 The issues all grow out of a series of international conferences organized by the Federal Communications Commission ("FCC" or "Commission"). Since 1974, the FCC's Telecommunications Committee ("Committee") has periodically met with representatives of foreign telecommunications administrations and carriers to discuss matters of common concern, particularly the planning of shared facilities. These gatherings, known as "consultative process" ("CP") meetings, have routinely been transcribed and open to all interested parties, including representatives of American carriers. Beginning late in 1979, however, the Committee moved to expand the focus of the CP meetings and to exclude American carriers from the expanded discussions. 5
One of the excluded carriers, ITT World Communications, Inc. ("ITT"), has since engaged in a two-front campaign to have these meetings reopened. The present appeals concern both prongs of that campaign. In Numbers 80-2324 and 80-2401, ITT appeals a judgment of the district court dismissing its complaint that the Committee's actions at the closed meetings are ultra vires. The Commission cross-appeals accompanying judgments rendered against it under FOIA and the Sunshine Act. 6 In Number 80-1721, ITT petitions for review of a Commission order denying its petition for a rulemaking that would establish regulations governing the conduct of the CP. 7
For the reasons set forth below, we
(1) reverse the district court's dismissal of ITT's ultra vires complaint and remand for further proceedings;
(2) affirm in part, reverse in part, and remand in part the district court's order directing the Commission to disclose all materials identified in response to ITT's FOIA request;
(3) affirm the district court's determination that the CP meetings are governed by the provisions of the Sunshine Act; and
(4) reverse in part and remand in part the Commission's rulemaking denial.
International record service 8 has long been dominated, at the American end, by four firms known as the International Record Carriers ("IRCs"). 9 ITT is one of those carriers. 10 In an effort to foster greater competition in this field, 11 the Commission in 1977 authorized two smaller common carriers, GTE Telenet Communications Corp. ("Telenet") and Graphnet Systems, Inc. ("Graphnet"), to offer specialized international service. 12 The Commission's competition policy, however, has met a formidable obstacle: American carriers obviously cannot provide international service without links to correspondent carriers abroad, 13 and to date Telenet and Graphnet have been unable to secure interconnection agreements with European administrators. 14 The foreign administrations apparently oppose greater competition in the private sector, preferring instead to deal exclusively with the established American carriers. 15
In response, the Commission in 1979 turned to the consultative process as a forum for encouraging foreign cooperation with the newly authorized carriers. The CP had been initiated five years earlier as a means to exchange and discuss technical information related to the operation of jointly owned communications facilities; meetings were transcribed and open to all interested parties. 16 At the October 1979 CP meeting in Dublin, Ireland, however, the Telecommunications Committee persuaded its foreign counterparts to expand the meeting's focus to include "the United States' authorization of new telecommunications services and carriers," and to exclude representatives of American carriers from this part of the meeting. 17 In addition to the Dublin meeting, a February 1980 meeting in Ascot, England, and an October 1980 meeting in Madrid, Spain, were closed during discussions of this topic.
The specific nature of these off-the-record discussions is sharply contested and cuts to the heart of these appeals. Conceding that "international negotiation is the province of the State Department," 18 the Commission characterizes the closed encounters as merely "informal talks" that, like the public CP meetings, facilitate "the exchange of information and views." 19 More precisely, the sessions are designed "to improve foreign understanding of the bases for and the nature of our pro-competition policies and, at the same time, to increase our knowledge of any unique telecommunications problems or policies which may exist in a particular country." 20 According to the Commission, the Committee does not officially lobby on the Commission's behalf: To the extent that "some commissioners have encouraged the foreign entities to cooperate with the policies of the FCC," as opposed to merely informing them of Commission policies, "these comments represent the personal views of the Commissioners, not official agency policy ...." 21
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