MCI Telecommunications Corp. v. F.C.C.
| Decision Date | 24 June 1983 |
| Docket Number | Nos. 82-1553,82-1659,82-1657,82-2199 and 82-2251,82-1650,82-1554,82-2194,s. 82-1553 |
| Citation | 229 U.S.App.D.C. 203,712 F.2d 517 |
| Parties | MCI TELECOMMUNICATIONS CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Southern Pacific Communications Company, U.S. Telephone Communications, Inc., National Telephone Cooperative Association, et al., U.S. Independent Telephone Association, American Telephone & Telegraph Company, et al., GTE Service Corporation, et al., Western Union Telegraph Company, National Association of Regulatory Utility Commissioners, United States Transmission Systems, Inc., Association of Long Distance Telephone Companies, Intervenors. MCI TELECOMMUNICATIONS CORPORATION, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Southern Pacific Communications Company, U.S. Telephone Communications, Inc., National Telephone Cooperative Association, et al., U.S. Independent Telephone Association, American Telephone & Telegraph Company, et al., GTE Service Corporation, et al., Western Union Telegraph Company, National Association of Regulatory Utility Commissioners, Association of Long Distance Telephone Companies, Intervenors. UNITED STATES TRANSMISSION SYSTEMS, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, MCI Telecommunications Corporation, American Telephone & Telegraph Company, et al., Southern Pacific Communications Company, National Telephone Cooperative Association, et al., GTE Service Corporation, et al., Western Union Telegraph Company, Association of Long Distance Telephone Companies, Intervenors. SATELLITE BUSINESS SYSTEMS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, MCI Telecommunications Corporation, American Telephone & Telegraph Company, et al., U.S. Transmission Systems, Inc., U.S. Independent Telephone Association, Western Union Telegraph Company, National Telephone Cooperative Association, et al., GTE Service Corporation, et al., Southern Pacific Communications Company, Association of |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On petitions for review of orders of the Federal Communications commission. William J. Byrnes, Washington, D.C., with whom Michael H. Bader, Kenneth A. Cox and Joel Rothstein Wolfson, Washington, D.C., were on brief, for petitioner and intervenor, MCI Telecommunications Corp. Philip S. Nyborg and Ruth S. Baker-Battist, Washington, D.C., also entered appearances for intervenor.
William E. Willis, New York City, with whom Margaret K. Pfeiffer, Robert B. Bell, William D. English, F. Thomas Tuttle and Kevin H. Cassidy, Washington, D.C., were on brief, for petitioner and intervenor, Satellite Business Systems. J. Laurent Scharff, W. Theodore Pierson, Jr., Richard M. Singer and Michael M. Maney, Washington, D.C., also entered appearances for petitioner.
Leo I. George, Washington, D.C., with whom Donald J. Evans, Washington, D.C., was on brief, for petitioner and intervenor, U.S. Telephone Communications, Inc.
David I. Shapiro, New York City, with whom Howard J. Trienens, Raymond F. Scully, Judith A. Maynes, Richard J. Cunningham, New York City, James VanR. Springer, Walter J. Walvick and Daniel Stark, Washington, D.C., were on brief, for petitioners and intervenors, Bell Operating Companies and American Telephone & Telegraph Company.
Grant S. Lewis, John S. Kinsey, Howard A. White, Joseph J. Jacobs, New York City, and Randall B. Lowe, Washington, D.C., were on brief for petitioner and intervenor, U.S. Transmission Systems, Inc. Samuel J. Abate, Jr., New York City, also entered an appearance for petitioner.
John E. Ingle, Deputy Asst. Gen. Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel, Daniel M. Armstrong, Asst. Gen. Counsel, F.C.C., Jane E. Mago, Atty., F.C.C., Washington, D.C., were on brief, for respondent. Stephen A. Sharp, C. Grey Pash, Jr., Attys., F.C.C., Barry Grossman, Nancy C. Garrison, and Andrea Limmer, Attys., Dept. of Justice, Washington, D.C., also entered appearances for respondent.
J. Roger Wollenberg, William T. Lake, Roger M. Witten, Margaret L. Tobey and James M. Tobin, Washington, D.C., were on brief for intervenor, Southern Pacific Communications Co.
Thomas J. O'Reilly, Daniel J. Greenwald, III, Shelley Sternard Dempsey, Washington, D.C., were on brief for intervenor, U.S. Independent Telephone Ass'n.
Richard McKenna and James R. Hobson, Washington, D.C., were on brief for intervenors, GTE Service Corp., et al. Gail L. Polivy, Washington, D.C., also entered an appearance for intervenors.
Paul Rodgers, Charles D. Gray and Deborah A. Dupont, Washington, D.C., were on brief for intervenor, Nat. Ass'n of Regulatory Utility Com'rs.
David Cosson and Amy S. Gross, Washington, D.C., entered appearances for intervenor, Nat. Telephone Coop. Ass'n.
Ellen S. Deutsch, Washington, D.C., entered an appearance for intervenor, Organization for the Protection and Advancement of Small Telephone Companies.
Allan C. Hubbard, Reston, Va., entered an appearance for intervenor, Western Union Telegraph Co.
Victor J. Toth, Reston, Va., entered an appearance for intervenor, Ass'n of Long Distance Telephone Companies.
Before ROBINSON, Chief Judge, EDWARDS, Circuit Judge, and FAIRCHILD, * Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.
Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.
The petitioners in these consolidated cases attack, from various angles, three Federal Communications Commission ("FCC" or "Commission") orders concerning interim charges paid by Other Common Carriers ("OCCs") providing interstate service for access to local telephone exchanges pending implementation of more permanent access charges beginning in January 1984. The first of the challenged orders established that the public interest would be served by continuing in effect an industry-wide agreement that had established a formula for computing the interim charges. Exchange Network Facilities for Interstate Access, 90 F.C.C.2d 6 (1982) ("Extension Order "). The second order suspended for five months and set for investigation a tariff filed by the American Telephone & Telegraph Company ("AT & T") that purported to implement the negotiated agreement because the Commission could not conclude that the tariff rates were consistent with the agreement. AT & T, 90 F.C.C.2d 202 (1982) ("Suspension Order "). The third challenged order concluded that AT & T's tariff was both inconsistent with the interim agreement and unreasonable, and required AT & T to modify the tariff in several respects. AT & T, 91 F.C.C.2d 1079 (1982) ("Order After Investigation ").
The multifarious challenges to these orders require us to determine, first, whether the FCC properly extended the industry-wide interim agreement and, if so, whether the Commission properly interpreted several disputed terms of the agreement. To resolve the first of these questions, we must decide whether (1) the Extension Order was promulgated in a timely manner, (2) the Commission properly concluded that it could extend the agreement while important questions concerning the public interest were left unresolved and deferred to an ongoing rulemaking proceeding in which those questions were being exhaustively considered, and (3) the manner in which the Commission specified the access charges for the second phase of the interim period satisfied its obligations under the agreement. We affirm the FCC's decisions on each of these disputed issues and conclude that the negotiated interim agreement was properly extended. We conclude, however, that the FCC gave inadequate consideration to the status of OCCs that had not signed the interim agreement, and that certain aspects of the Commission's decisions deserve reconsideration in light of the conclusions reached in the rulemaking proceeding to which it properly deferred when extending the agreement.
The second question is more easily resolved....
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