North American Telecommunications Ass'n v. F.C.C.
| Citation | 772 F.2d 1282 |
| Decision Date | 13 June 1985 |
| Docket Number | 84-2853,Nos. 84-2216,84-2853 and 85-1425,s. 84-2216 |
| Parties | NORTH AMERICAN TELECOMMUNICATIONS ASSOCIATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. New England Telephone and Telegraph Co., et al., Intervening Respondents. U.S. WEST, INC., Petitioner, and AMERICAN INFORMATION TECHNOLOGIES CORPORATION, et al., Intervening Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. Rolm Corporation, et al., Intervening Respondents. U.S. WEST, INC., Petitioner, and AMERICAN INFORMATION TECHNOLOGIES CORPORATION et al., Intervening Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. North American Telecommunications Association, et al., Intervening Respondents. . Argued () |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Denise Bonn, Albert H. Kramer, on the brief, Wood, Lucksinger & Epstein, North American Telecommunication Assn'n. , Washington, D.C., for petitioner.
Linda L. Oliver, F.C.C., Washington, D.C., for respondents.
Before BAUER and POSNER, Circuit Judges, and SWYGERT, Senior Circuit Judge.
Last summer, in Illinois Bell Tel. Co. v. FCC, 740 F.2d 465 (7th Cir.1984), we upheld an order by the Federal Communications Commission establishing conditions under which the Bell operating companies, having been divested from American Telephone and Telegraph Company as part of the settlement of the government's antitrust suit against AT & T, could resume the marketing of telephone handsets and other "customer premises equipment" (as well as "enhanced services," but they are not important in the present case) to their subscribers. We had thought that, having upheld the order, and review by the Supreme Court of our decision not having been sought, we were through with the matter; but, alas, no. Two of the three review proceedings that we have consolidated for decision involve challenges to aspects of the order that were not before us last year, under the guise of challenging the Commission's denial of petitions to reconsider the order we upheld. The third involves a challenge to a subsequent order of the Commission further reaffirming a provision of the original order. The reason that there are three petitions to review two orders is that two petitions challenging one order were originally filed in two circuits, the District of Columbia circuit and this circuit, and the Court of Appeals for the District of Columbia Circuit transferred its petition to us. See North American Telecommunications Ass'n v. FCC, 751 F.2d 207, 208 (7th Cir.1984) (per curiam).
Until 1984 the American Telephone and Telegraph Company had a powerful hold over the market for telephone handsets and other customer premises equipment. AT & T's Western Electric subsidiary manufactured the equipment and sold it to the Bell operating companies, which in turn leased (or in recent years, sold) the equipment to their subscribers. The operating companies also bought some equipment from independent manufacturers to sell or lease to their subscribers and in recent years their subscribers bought or leased some equipment from independent manufacturers directly. But most of the customer premises equipment in areas served by the Bell operating companies was equipment that the companies had bought from Western Electric and leased to their subscribers.
This condition changed completely in 1984, when the consent decree settling the government's massive antitrust suit against AT & T took effect. The decree spun off the operating companies from AT & T but did not make them free-standing. Instead it authorized the creation of a new tier of companies, the "Regional Bell Operating Companies," each a holding company set up to own several former Bell operating companies serving contiguous areas. Another provision of the decree transferred to AT & T all of the customer premises equipment formerly owned by the Bell operating companies and leased to subscribers. Hence the regional companies, and their Bell operating company subsidiaries, were out of the equipment business. But the decree did not require that they keep out; it left it up to the FCC to decide under what conditions they could come in.
The order we upheld last summer was the order setting those conditions. Policy and Rules Concerning the Furnishing of Customer Premises Equipment, Enhanced Services and Cellular Communications Services by the Bell Operating Companies, 95 F.C.C.2d 1117 (1984). We shall call this, the first of the three orders involved in this case, the "separate-subsidiary" order. It requires the regional companies if they want to get into the equipment business to create subsidiaries for this purpose that have their own personnel and premises. The Bell companies challenged this requirement as too harsh but we upheld it. The North American Telecommunications Association, which comprises independent companies (i.e., not affiliated with telephone companies) that make, sell, or install customer premises equipment, challenged the Commission's order as too gentle but we dismissed the Association's challenge as untimely. 740 F.2d at 477. The Association had appeared as an intervening respondent, filing its brief at the same time as the parties supporting the Commission's order rather than the parties attacking it, even though the Association was one of the attackers. By filing when it did the Association prevented the Commission and the true intervening respondents from filing a responsive brief, and this could not be allowed. But cf. California Public Broadcasting Forum v. FCC, 752 F.2d 670, 683 n. 10 (D.C.Cir.1985).
That did not stop the Association, however, for along with other parties it had filed motions asking the Commission to reconsider the separate-subsidiary order, and three days before we upheld that order the Commission had reaffirmed it in In re Petitions for Reconsideration of an Order in Policy and Rules Concerning the Furnishing of Customer Premises Equipment, Etc., 49 Fed.Reg. 26056 (June 26, 1984), the "reconsideration order." The Association has filed a petition for judicial review of the reconsideration order and that is one of the petitions before us. In addition, some of the regional companies, in their motions asking the Commission to reconsider the separate-subsidiary order, had questioned the Commission's jurisdiction over them, as distinct from over the operating companies; and two of the regional companies have filed petitions for review challenging the part of the reconsideration order in which the Commission held that it had jurisdiction and that the regional companies must get the Commission's approval for their plans of capitalization.
Finally, the same two regional companies ask us to set aside a third order by the Commission, in which it reaffirmed its jurisdictional holding and made clear that the regional companies face sanctions if they do not file the required plans of capitalization. In re American Information Technologies, Inc., et al., Capitalization Plans for the Furnishing of Customer Premises Equipment and Enhanced Services, FCC Mimeo No. 85-28 (Feb. 4, 1985). This is the "capitalization order." We accelerated briefing on the petitions to review this order so that we could resolve as many of the related controversies among the parties as possible at the same time. This, then, is the set of challenges that we have consolidated for decision today.
The Association's challenge is to three exceptions that the Commission allowed to the stringent separation required between the Bell operating companies and the equipment subsidiaries of the regional companies. Before taking up the merits of the challenge we remark its unusual procedural posture. Having a year ago dismissed the Association's challenge to the FCC's separate-subsidiary order as untimely, we are now asked to consider the identical challenge on review of the FCC's refusal on reconsideration to change the order.
This duplication of review proceedings would be impossible if the reconsideration order had been issued by a district court rather than the Federal Communications Commission. A party to a district court proceeding who wants the court to reconsider its judgment must within 10 days file a motion under Fed.R.Civ.P. 59(e) to alter or amend the judgment. See A.D. Weiss Lithograph Co., v. Illinois Adhesive Products Co., 705 F.2d 249 (7th Cir.1983) (per curiam). A timely filing precludes an appeal from the district court's decision until the motion is decided, Fed.R.App.P. 4(a)(4), at which time both the original judgment and the decision (if itself a final decision within the meaning of 28 U.S.C. Sec. 1291) on the Rule 59(e) motion are appealable within the time provided by Fed.R.App.P. 4(a)(1), see, e.g., Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 652 (7th Cir.1984). If the party does not file a Rule 59(e) motion within the appointed time, then he may of course appeal the district court's decision immediately. But if he fails to take a timely appeal, he cannot get appellate review of that decision indirectly, by filing a motion under Fed.R.Civ.P. 60(b) to vacate the district court's judgment and then appealing from the denial of that motion. See, e.g., Bank of California v. Arthur Andersen & Co., 709 F.2d 1174, 1176-78 (7th Cir.1983); Schildhaus v. Moe, 335 F.2d 529, 531 (2d Cir.1964) (Friendly, J.). This is essentially the end run tried by the North American Telecommunications Association in this case; and if successful it will nullify our action in dismissing its challenge to the Commission's original order as untimely.
But we conclude, although with reluctance, that the Association's end run has succeeded. Section 405 of the Communications Act of 1934, as amended, 47 U.S.C. Sec. 405, gives a person aggrieved by an FCC order 30 days to ...
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