Maine Public Advocate v. F.C.C., s. 87-1213

Citation828 F.2d 68
Decision Date14 September 1987
Docket NumberNos. 87-1213,87-1399,s. 87-1213
PartiesMAINE PUBLIC ADVOCATE, Representative John A. Cashman and Representative Joseph W. Mayo, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, U.S. Sprint Communications Company, et al., and New York State Public Service Commission, et al., Intervenors. VERMONT DEPARTMENT OF PUBLIC SERVICE and Vermont Public Service Board, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Telephone and Telegraph Company, Intervenor.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

John E. Ingle, Deputy Associate Gen. Counsel, Linda L. Oliver, Washington, D.C., F.C.C., Francine J. Berry, New York City, Judy Sello, Basking Ridge, N.J., David W. Carpenter, Chicago, Ill., Cynthia A. Gray, and Sidley & Austin, Washington, D.C., on motion to dismiss for F.C.C. and American Tel. and Tel. Co.

William C. Black, Acting Public Advocate, Augusta, Me., Crombie Garrett, Asst. Atty. Gen., Samuel H. Press, Washington, D.C., Director for Public Advocacy, and Joel B. Shifman, Gen. Counsel, Charleston, W.V., on opposition to motion to dismiss.

Before CAMPBELL, Chief Judge, BOWNES and TORRUELLA, Circuit Judges.

PER CURIAM.

Respondent Federal Communications Commission has moved to dismiss for lack of jurisdiction the instant petitions for review of an F.C.C. order allowing certain tariff revisions to become effective and denying requests that the F.C.C. reject or suspend and investigate those tariff revisions. Intervenor American Telephone and Telegraph Co. ("AT & T") has joined in the motion to dismiss. Upon consideration, we grant the motion.

In an order released January 29, 1987, the F.C.C. affirmed an order of its Common Carrier Bureau allowing certain tariff revisions filed by AT & T to become effective without suspension or investigation. In so doing the F.C.C. approved the Bureau's decision to deny petitions filed by a number of parties--including petitioners to this court--arguing that the revisions were unlawful and urging that they be rejected or suspended pending investigation. The tariff revisions in question modified AT & T's long-distance telephone rates so that the interstate portion of AT & T's gross receipts tax expenses would be recovered in the interstate rates charged to customers in each state that imposes gross receipts taxes on AT & T. Petitioners seek review in this court of the F.C.C. order.

It is well-settled that agency orders declining to reject or to suspend and investigate tariff revisions, and permitting those tariff revisions to take effect, are not ordinarily subject to judicial review. Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) (Interstate Commerce Commission); Direct Marketing Association, Inc. v. F.C.C., 772 F.2d 966 (D.C.Cir.1985) (F.C.C.); 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.Ed.2d 311 (1981) (F.C.C.); Papago Tribal Utility Authority v. F.E.R.C., 628 F.2d 235 (D.C.Cir.), cert. denied, 449 U.S. 1061, 101 S.Ct. 784, 66 L.Ed.2d 604 (1980) (F.E.R.C.). Such orders are unreviewable because they do not determine the ultimate lawfulness of the filed tariffs. A party aggrieved by the tariff may avail itself of the complaint procedure established by 47 U.S.C. Sec. 208 to challenge the tariff's lawfulness and ultimately obtain a final and reviewable determination. American Broadcasting Companies, Inc., supra, 662 F.2d at 158-59; Aeronautical Radio, Inc., supra, 642 F.2d at 1234-35. In addition, 47 U.S.C. Sec. 204 provides that the F.C.C. "may" suspend the effectiveness of new or revised tariffs and "may" initiate an investigation into them. Accordingly, the agency's decision whether or not to do so is unreviewable because it is committed to the exclusive discretion of the agency. American Broadcasting Companies, Inc., supra, 662 F.2d at 157; Aeronautical Radio, Inc., supra, 642 F.2d at 1234-35.

Petitioners assert that, despite the clear dictate of the above-cited precedents, the F.C.C. order appealed from should be treated as a final order because it amounted to a decision on the merits of petitioners' claims that the tariff revisions were unlawful. However, nothing in petitioners' opposition suffices to suggest that the order may constitute a final determination of that issue. The F.C.C. considered evidence and issued a fully-elaborated decision to...

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2 cases
  • Mci Telecom. v. Com. of Virginia State Corp. Com'n, Civil Action No. 3:98CV284.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • June 15, 1998
    ...in front of the FCC. What it may not do is challenge the FCC tariff, indeed rule on it, in a SCC proceeding. See Maine Pub. Advocate v. FCC, 828 F.2d 68, 69 (1st Cir.1987); Direct Marketing Ass'n, Inc. v. FCC, 772 F.2d 966, 969 Conclusion The SCC's Order invades the FCC's exclusive authorit......
  • Connecticut Office of Consumer Counsel v. F.C.C.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 20, 1990
    ...a tariff is not a final judgment of an administrative agency and thus is not subject to appellate review. See Maine Public Advocate v. FCC, 828 F.2d 68 (1st Cir.1987). On March 18, 1988, petitioners filed with the FCC the complaint in the instant matter. It alleged that AT & T, in collectin......

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