NTCH, Inc. v. Fed. Commc'ns Comm'n, 16-1277

• Decision Date: 15 December 2017
• Docket Number: No. 16-1277,16-1277
• Citation: 877 F.3d 408
• Parties: NTCH, INC., Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Cellco Partnership, d/b/a Verizon Wireless, Intervenor
• Court: U.S. Court of Appeals — District of Columbia Circuit

877 F.3d 408

NTCH, INC., Petitioner

v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, RespondentsCellco Partnership, d/b/a Verizon Wireless, Intervenor

No. 16-1277

United States Court of Appeals, District of Columbia Circuit.

Argued October 16, 2017

Decided December 15, 2017

Donald J. Evans, Arlington, VA, argued the cause for petitioner. With him on the briefs was Ashley Ludlow, Arlington, VA. Jonathan Markman, Arlington, VA, entered an appearance.

Maureen K. Flood, Counsel, Federal Communications Commission, argued the cause for respondents. On the brief were Robert B. Nicholson and Jonathan H. Lasken, Attorneys, Washington, DC, U.S. Department of Justice, David M. Gossett, Deputy General Counsel, Richard K. Welch, Deputy Associate General Counsel, and Matthew J. Dunne, Counsel. Jacob M. Lewis, Associate General Counsel, entered an appearance.

David L. Haga, Arlington, VA, argued the cause for intervenor. With him on the brief was Christopher M. Miller, Arlington, VA. Andre J. Lachance, Washington, DC, entered an appearance.

Before: Rogers and Tatel, Circuit Judges, and Edwards, Senior Circuit Judge.

Edwards, Senior Circuit Judge:

NTCH, Inc. ("NTCH"), a regional Commercial Mobile Radio Service carrier in a number of markets around the United States, petitions this court for review of an order issued by the Enforcement Bureau ("Bureau") of the Federal Communications Commission ("Commission"). The Bureau acted pursuant to delegated authority under 47 U.S.C. § 155(c)(1), but NTCH never sought Commission review of the Bureau order before petitioning for judicial review. The Communications Act of 1934 ("Act") requires complaining parties who seek to challenge any such action taken by the Bureau to first seek review with the Commission as "a condition precedent to judicial review." 47 U.S.C. § 155(c)(7) (2012). Therefore, this court has no jurisdiction to entertain NTCH's challenge to the order issued by the Bureau. Int'l Telecard Ass'n v. FCC , 166 F.3d 387, 388 (D.C. Cir. 1999) (per curiam).

NTCH argues that because the Bureau's order concluded an investigation into the lawfulness of a charge, classification, regulation, or practice under 47 U.S.C. § 208, it was a "final order" under § 208(b) and, thus, subject to judicial review. NTCH is mistaken. Even if NTCH's claim falls within the compass of § 208(b), this court still does not have jurisdiction to address it. As we explain below, the order issued by the Bureau is not an order of the Commission.

And without a final order from the Commission, we have no jurisdiction to address NTCH's petition for review.

Because NTCH failed to seek Commission review before petitioning for review in this court, we are constrained to dismiss the petition for lack of jurisdiction.

I. BACKGROUND

This case concerns NTCH's attempt to challenge Commission rules governing disputes over voice and data "roaming" rates. "[W]hen wireless subscribers travel outside the range of their own carrier's network and use another carrier's network infrastructure to make a call," the rate the latter carrier charges the "roaming" carrier's customer is the "roaming" rate. Cellco P'ship v. FCC , 700 F.3d 534, 537 (D.C. Cir. 2012). Voice roaming allows customers to make telephone calls when they go outside of their mobile operator's cellular network; data roaming, in turn, allows customers to access data services, such as the internet. Smaller carriers such as NTCH, with only limited networks, have obvious concerns about the roaming charges they may absorb on behalf of their wireless subscribers.

The Commission issued orders governing voice roaming in 2007, see In the Matter of Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers , 22 FCC Rcd. 15817 (2007), and 2010, see In the Matter of Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services , 25 FCC Rcd. 4181 (2010) (collectively, " Voice Roaming Orders "). In 2011, the Commission issued an order governing data roaming. See In the Matter of Reexamination of Roaming Obligations of Commercial Mobile Radio ServiceProviders and Other Providers of Mobile Data Services ("Data Roaming Order "), 26 FCC Rcd. 5411 (2011). In 2015, the Commission issued an order classifying retail broadband internet access service as a "telecommunications service" subject to common carriage regulation under Title II of the Act. See In the Matter of Protecting and Promoting the Open Internet ("Open Internet Order "), 30 FCC Rcd. 5601, 5743 ¶ 331 (2015), aff'd , U.S. Telecom Ass'n v. FCC , 825 F.3d 674 (D.C. Cir. 2016).

In its Voice Roaming Orders , the Commission found that § 208 applied to the provisioning of voice roaming as a common carrier service. In the Matter of NTCH, Inc., Complainant v. Cellco P'ship d/b/a Verizon Wireless, Defendant , 31 FCC Rcd. 7165, 7167–68 ¶ 7 (2016). The Commission's rules provide that the Bureau resolves complaints filed under § 208. Compare 47 C.F.R. § 0.311 (2016) (stating that "[t]he Chief, Enforcement Bureau, is delegated authority to perform all functions of the Bureau, described in § 0.111," except for certain matters not germane here and "[o]rders concluding an investigation under section 208(b) of the Communications Act and orders addressing petitions for reconsideration of such orders," which "shall be referred to the Commission en banc for disposition"), with id. § 0.111(a)(1) (stating that the Bureau shall "[r]esolve complaints, including complaints filed under section 208 of the Communications Act, regarding acts or omissions of common carriers (wireline, wireless and international)"); see also 47 U.S.C. § 155(c)(1) (2012) (stating that the Commission "may ... delegate any of its functions," with the exception of actions referred to in § 208(b) and other sections not germane here). The Commission's Data Roaming Order set forth procedures for resolving disputes over its data roaming rule, providing that parties could file complaints under 47 C.F.R. § 20.12(e)(2) and delegating authority to the Bureau to adjudicate data roaming complaints. 47 C.F.R. § 0.111(a)(11) (2016) ; Data Roaming Order , 26 FCC Rcd. at 5451 ¶ 82 ("We further clarify that the Enforcement Bureau has delegated authority to resolve complaints arising out of the data roaming rule.") & n.238 ("We add appropriate clarifying language to this effect to the rule governing the functions of the Enforcement Bureau." (citing modifications to 47 C.F.R. § 0.111(a)(11) (2016) )). NTCH concedes that the Bureau acted pursuant to delegated authority, but contends that the Commission's delegation of authority to the Bureau violated 47 U.S.C. § 155(c)(1).

On November 22, 2013, after the Commission's Data and Voice Roaming Orders were released (but before the Commission's Open Internet Order reclassified mobile broadband as a Title II service subject to common carriage regulation), NTCH filed a complaint against Verizon Wireless ("Verizon"). The complaint alleged that Verizon had violated the Commission's Voice Roaming Orders and Data Roaming Order by offering roaming rates that were unjust and unreasonable, unreasonably discriminatory, and commercially unreasonable. The complaint noted that voice roaming is a common carrier service whose rates are subject to the standards of § 201(b), which requires just and reasonable rates, and § 202(a), which forbids discriminatory pricing. The complaint also contended that data roaming is a common carrier service subject to Title II's just and reasonable and nondiscrimination obligations, but that in any case the data rate was not "commercially reasonable" under the standards the Commission had adopted in its Data Roaming Order .

NTCH's complaint also alleged that the rates offered by Verizon were unreasonably discriminatory vis à vis rates offered to other carriers and Mobile Virtual Network Operators ("MVNOs") for similar or identical services. It alleged that Verizon's data roaming practices restrained trade because they permitted MVNOs, particularly one called Straight Talk, to offer predatorily low rates to customers in competition with smaller carriers targeting the prepaid market, thus undercutting the smaller carriers' ability to survive. NTCH asked the Commission to force Verizon to make its roaming rates to all carriers public on the grounds that nondisclosure agreements prevented anyone (including the Commission) from discovering whether the rates Verizon offered to different carriers were discriminatory.

NTCH's complaint did not mention § 208(b)(1), which provides that the "Commission shall" issue an order concluding an investigation into the lawfulness of a charge or practice of a common carrier "within 5 months" after the filing of a complaint. On July 2, 2014, NTCH filed an amended complaint, again without including any assertion that the complaint proceeding was governed by § 208(b)(1) or its five-month deadline. On September 18, 2015, NTCH for the first time (and without any analysis or explanation) cursorily asserted in a brief filed in support of its complaint that the complaint must be resolved within five months under § 208(b)(1). On June 30, 2016, the Bureau issued its order denying NTCH's complaint. It found that Verizon's proffered voice roaming rate was not unjust or unreasonable, or unreasonably discriminatory, under the Commission's rules; that Verizon's proffered data roaming rates were commercially reasonable and not in violation of the Commission's data roaming rules; and that NTCH's proposed factors for consideration in evaluating Verizon's proffered rates (cost of service, comparison to retail rates, and comparisons to carriage with MVNOs) should be rejected as inappropriate and not comparable. NTCH then filed a petition for review with this court without seeking review by the Commission.

NTCH now asks this court to declare the roaming rates offered by Verizon unjust and unreasonable and unreasonably...