MCI Telecommunications Corp. v. F.C.C., s. 89-1382
| Decision Date | 23 October 1990 |
| Docket Number | 89-1390,89-1384,Nos. 89-1382,89-1695 and 89-1733,s. 89-1382 |
| Citation | 917 F.2d 30 |
| Parties | MCI TELECOMMUNICATIONS CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Telephone and Telegraph Company, Mountain States Telephone and Telegraph Company, US Sprint Communications Company Limited Partnership, ITT Communications Services, Inc., Competitive Telecommunications Association, Independent Data Communications Manufacturers Association, Inc., Southwestern Bell Telephone Company, Ad Hoc Telecommunications Users Committee, Intervenors. US SPRINT COMMUNICATIONS COMPANY LIMITED PARTNERSHIP, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Telephone and Telegraph Company, MCI Telecommunications Corporation, Mountain States Telephone and Telegraph Company, et al., ITT Communications Services, Inc., Competitive Telecommunications Association, Independent Data Communications Manufacturers Association, Inc., Southwestern Bell Telephone Company, Ad Hoc Telecommunications Users Committee, Intervenors. INDEPENDENT DATA COMMUNICATIONS MANUFACTURERS ASSOCIATION, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, US Sprint Communications Company Limited Partnership, MCI Telecommunications Corporation, Ad Hoc Telecommunications Users Committee, Mountain States Telephone and Telegraph Company, et al., ITT Communications Services, Inc., Southwestern Bell Telephone Company, Competitive Telecommunications Association, American Telephone and Telegraph Company, Intervenors. INDEPENDENT DATA COMMUNICATIONS MANUFACTURERS ASSOCIATION, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, US Sprint Communications Company Limited Partnership, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Inc., Michigan Bell Telephone Company, The Ohio Bell Telephone Company, and Wisconsin Bell, Inc. (Ameritech Operating Companies), MCI Telecommunications Corporation, American Tel |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Anthony C. Epstein, with whom Chester T. Kamin, Thomas S. Martin, Michael H. Salsbury, Carl S. Nadler, John M. Scorce, and Donald J. Elardo were on the brief, for MCI Telecommunications Corp., petitioner in No. 89-1382, and intervenors in Nos. 89-1384, 89-1390, and 89-1695.
Herbert E. Marks, with whom David Alan Nall was on the brief, for Independent Data Communications Mfrs. Ass'n, Inc., petitioner in Nos. 89-1390 and 89-1695, and intervenors in No. 89-1733.
Leon M. Kestenbaum and H. Richard Juhnke were on the brief for US Sprint Communications Co. Ltd. Partnership, petitioner in No. 89-1384, and intervenors in Nos. 89-1390, 89-1695 and 89-1733. Michael B. Fingerhut also entered an appearance.
William L. Fishman and Eric Fishman were on the brief for petitioner Williams Telecommunications Group, Inc. in No. 89-1733.
John E. Ingle, Deputy Associate Gen. Counsel, with whom Robert L. Pettit, Gen. Counsel, Jane E. Mago and Laurence N. Bourne, Counsel, F.C.C., James F. Rill, Asst. Atty. Gen., Catherine G. O'Sullivan and Robert J. Wiggers, Attys., Dept. of Justice, were on the brief, for respondents in all cases. Daniel M. Armstrong, Atty., F.C.C., also entered an appearance for respondents.
David W. Carpenter, with whom Gene C. Schaerr and Francine J. Berry were on the brief, for intervenor AT & T in Nos. 89-1384, 89-1390, 89-1695 and 89-1733. David J. Lewis, Michael J. Morrissey, and Albert M. Lewis also entered appearances for intervenor.
Genevieve Morelli, W. Theodore Pierson, Jr., and Robert J. Aamoth were on the brief for intervenors Competitive Telecommunications Ass'n and Communications Services, Inc. in No. 89-1384. James M. Smith also entered an appearance for intervenors.
Dana A. Rasmussen and Robert B. McKenna for the Mountain States Tele
phone and Telegraph Co., et al.; William C. Sullivan, Richard C. Hartgrove, and Joseph E. Cosgrove, Jr. for Southwestern Bell Telephone Co.; Floyd S. Keene and Alfred Winchell Whittaker for Illinois Bell Telephone Co., et al., were on the joint brief for intervenors in Nos. 89-1384, 89-1390, 89-1695 and 89-1733. Patricia J. Nobles also entered an appearance for intervenors.
James S. Blaszak, Patrick J. Whittle, and Kevin S. DiLallo were on the brief for intervenors Ad Hoc Telecommunications Users Committee in Nos. 89-1382, 89-1384, 89-1390, 89-1695 and 89-1733.
W. Theodore Pierson, Jr., James M. Smith, and John A. Ligon entered appearances for intervenor ITT Communications Services, Inc. in Nos. 89-1384 and 89-1390.
J. Roger Wollenberg, William T. Lake, and Carl Willner entered appearances for intervenor Intern. Business Machines Corp. in Nos. 89-1695 and 89-1733.
Before MIKVA, EDWARDS and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
MCI Telecommunications, US Sprint, Williams Telecommunications, and Independent Data Communications Manufacturing Association ("IDCMA") petition for review of an order by the Federal Communications Commission concerning the lawfulness of a tariff filed by AT & T. We grant the petition in part.
This case involves four of AT & T's "Tariff 12" (or "integrated service package" or "VTNS") offerings which are composites of different individually-tariffed AT & T telecommunications services. The specific services, service amounts, and rates for each package are arrived at through negotiation between AT & T and a particular customer, each of whom is a large corporation. The rates for the package are lower than the aggregate rates the customers would have paid had they purchased each service individually from AT & T, but the customer generally commits to accepting the service package on a long-term basis and sacrifices the flexibility of determining exactly how AT & T will provide service. Non-dominant carriers--petitioners included, we are told--offer integrated service packages to large users in competition with AT & T.
The four options at issue here were filed as tariffs in accordance with the FCC requirement that AT & T offer telecommunications services only in this manner, see 47 U.S.C. Sec. 203 (1988). Each tariff designated the services constituting the package and the rate to be charged and also restricted the package's availability to certain areas of the nation. Shortly after each tariff was filed, petitioners asked the FCC to reject it as unlawful, or alternatively to suspend it and investigate its lawfulness. The FCC concluded that each tariff was not so patently unlawful as to warrant rejection but that certain issues regarding the tariffs merited further investigation. See AT & T Communications, Tariff F.C.C. Transmittal Nos. 1018 and 1102 No. 12, Memorandum Opinion and Order, 3 F.C.C.Rcd 995 (Feb. 9, 1988) ("February 9 Order "); AT & T Communications, Revisions to Tariff F.C.C. No. 12, Memorandum Opinion and Order, 3 F.C.C.Rcd 2837 (Apr. 28, 1988); AT & T Communications, Revisions to Tariff F.C.C. No. 12, Memorandum Opinion and Order, 4 F.C.C.Rcd 811 (Oct. 28, 1988); AT & T Communications, Revisions to Tariff F.C.C. No. 12, Memorandum Opinion and Order, 4 F.C.C.Rcd 1342 (Jan. 27, 1989).
The Commission accordingly set the tariffs for a hearing (under 47 U.S.C. Sec. 204 (1988)), and designated for inquiry, inter alia, the questions: whether the lower rates charged for the integrated packages constitute an unreasonable discrimination in provision of like communication service, whether the tariffs comply with the FCC's Private Line Rate guidelines (located at 47 C.F.R. Part 61.40), and whether integrated packages comport with the FCC's policies of encouraging resale of telecommunications services. See February 9 Order, 3 F.C.C.Rcd at 998-99. The FCC permitted the tariffs to remain in effect pending the outcome of the hearing.
After reviewing the tariffs, AT & T's direct case, petitioners' opposition, and comments from numerous interested parties, but declining to examine the contracts between AT & T and its customers, the FCC issued an order declaring each tariff unlawful. See AT & T Communications, Revisions to Tariff F.C.C. No. 12, Memorandum Opinion and Order, 4 F.C.C.Rcd 4932 (Apr. 18, 1989) ("April 18 Order "). The Commission focused primarily on the question whether or not the integrated service packages and an aggregation of their component services are "like communications services" within the meaning of Section 202 of the Communications Act, 47 U.S.C. Sec. 202 (1988) ().
The Commission determined that the two are not "like," and consequently that AT & T did not have to justify the lower prices for the integrated packages. It rejected petitioners' contention that the different offerings were essentially the same because a customer receives exactly the same communications capabilities and technology whether it purchases the services separately or in integrated form. It held instead that integrated packages are functionally different, reasoning that AT & T retains the flexibility to alter "the particular proportion of separately tariffed component services" and the facilities used to...
To continue reading
Request your trial
-
AT&T v. New York City Human Resources Admin.
...the ICA, the rationale underlying these decisions clearly applies to tariffs under the Communications Act. See MCI Telecommunications Corp. v. FCC, 917 F.2d 30, 38 (D.C.Cir.1990) ("The Communications Act, of course, was based upon the ICA and must be read in conjunction with it."); American......
-
Telstar Resource Group, Inc. v. Mci, Inc.
...Panatronic USA v. AT&T Corp., 287 F.3d 840, 843 (9th Cir.2002); Nat'l Commc'ns Assoc., 238 F.3d at 129-31; MCI Telecomms. Corp. v. FCC, 917 F.2d 30, 39 (D.C.Cir.1990). Telstar has not met the first element because it has not alleged that other customers who were not double-taxed for USF fee......
-
Ting v. At&T
...Regulatory Util. Comm'rs v. FCC, 737 F.2d 1095, 1133 (D.C.Cir.1984)) (second brackets in the original); see also MCI Telecomms. Corp. v. FCC, 917 F.2d 30, 41 (D.C.Cir. 1990). Accordingly, even when courts interpreted § 202(a) in the tariffed framework, contractual differences between custom......
-
Mci Telecommunications Corp. v. American Telephone
...of the Communications Act. In the context of the Interstate Commerce Act, which served as its model, see e.g., MCI Telecommunications Corp. v. FCC, 917 F.2d 30, 38 (CADC 1990), this Court has repeatedly stressed that rate filing was Congress's chosen means of preventing unreasonableness and......
-
Detariffing and the death of the filed tariff doctrine: deregulating in the "self" interest.
...(47.) See AT&T Co. v. New York City Human Res. Admin., 833 F. Supp. 962, 979 (S.D.N.Y. 1993); see also MCI Telecomm. Corp. v. FCC, 917 F.2d 30, 38 (D.C. Cir. 1990) ("The Communications Act, of course, was based upon the ICA and must be read in conjunction with it."); see also ABC v. FCC......
-
Dialing for dollars: should the FCC regulate Internet telephony?
...Section 202 attempts to prevent would be the grounds for finding that section inapplicable." MCI Telecommunications Corp. v. FCC, 917 F.2d 30, 39 (D.C. Cir. 1990). "Consideration of cost differentials and competitive necessity are properly excluded from the likeness determination and introd......