People of the State of Cal. v. F.C.C.

• Decision Date: 22 August 1997
• Docket Number: 96-4082 and 96-4083,96-4080,ATLANTIC-DELAWAR,INC,Nos. 96-3519,s. 96-3519
• Citation: 124 F.3d 934
• Parties: 9 Communications Reg. (P&F) 501 The PEOPLE OF THE STATE OF CALIFORNIA; The Public Utilities Commission of the State of California, Petitioners, Bell Atlantic Corporation; Bellsouth Corporation; Pacific Telesis Group; SBC Communications, Inc.; Maryland Public Service Commission; US West, Inc.; US Telephone Association; Arkansas Public Service Commission; ALLTEL Telephone Services Corporation; Ameritech Corporation; Oregon Public Utility Commission; North State Telephone Company; Western Alliance; Independent Telephone and Telecommunications Alliance; Roseville Telephone Company; Concord Telephone Company; Rock Hill Telephone Company; Public Utilities Commission of the State of Hawaii; American Public Communications Council, Inc.; ICG Telecom Group, Inc.; Minnesota Public Utilities Commission; Southern New England Telephone Company; The Ad Hoc Coalition of Telecommunications Manufacturing Companies; Pacific Telecom, Inc.; Minnesota Independent Coalition; Kentucky Public Service Commission; Kansas Corporation Commission; Public Service Commission of the State of Wyoming; Rhode Island Public Utilities Commission; Public Service Commission of Wisconsin; State of Texas; Alabama Public Service Commission; Citizens Telephone Company of Kecksburg; New Mexico State Corporation Commission; Public Service Commission of the State of Montana; GTE Service Corporation; Utah Department of Commerce, Division of Public Utilities; Public Service Commission of Utah; Public Service Commission of the State of South Carolina; Tennessee Regulatory Authority; Aging Forum, Inc., doing business as National Silver Haired Congress; U.S. Coalition on Aging; College for Living; Council of Silver Haired Legislatures; Missouri Alliance of Area Agencies on Aging; Missouri Association for the Deaf; Missouri Council of the Blind; Presidents' Club for Telecommunications Justice; Paraquad, Rural Advocates for Independent Living; Services for Independent Living; Public Utilities Commission of the State of
• Court: U.S. Court of Appeals — Eighth Circuit

Page 934

124 F.3d 934

9 Communications Reg. (P&F) 501

The PEOPLE OF THE STATE OF CALIFORNIA; The Public Utilities

Commission of the State of California, Petitioners,

Bell Atlantic Corporation; Bellsouth Corporation; Pacific

Telesis Group; SBC Communications, Inc.; Maryland Public

Service Commission; US West, Inc.; US Telephone

Association; Arkansas Public Service Commission; ALLTEL

Telephone Services Corporation; Ameritech Corporation;

Oregon Public Utility Commission; North State Telephone

Company; Western Alliance; Independent Telephone and

Telecommunications Alliance; Roseville Telephone Company;

Concord Telephone Company; Rock Hill Telephone Company;

Public Utilities Commission of the State of Hawaii;

American Public Communications Council, Inc.; ICG Telecom

Group, Inc.; Minnesota Public Utilities Commission;

Southern New England Telephone Company; The Ad Hoc

Coalition of Telecommunications Manufacturing Companies;

Pacific Telecom, Inc.; Minnesota Independent Coalition;

Kentucky Public Service Commission; Kansas Corporation

Commission; Public Service Commission of the State of

Wyoming; Rhode Island Public Utilities Commission; Public

Service Commission of Wisconsin; State of Texas; Alabama

Public Service Commission; Citizens Telephone Company of

Kecksburg; New Mexico State Corporation Commission; Public

Service Commission of the State of Montana; GTE Service

Corporation; Utah Department of Commerce, Division of

Public Utilities; Public Service Commission of Utah;

Public Service Commission of the State of South Carolina;

Tennessee Regulatory Authority; Aging Forum, Inc., doing

business as National Silver Haired Congress; U.S. Coalition

on Aging; College for Living; Council of Silver Haired

Legislatures; Missouri Alliance of Area Agencies on Aging;

Missouri Association for the Deaf; Missouri Council of the

Blind; Presidents' Club for Telecommunications Justice;

Paraquad, Rural Advocates for Independent Living; Services

for Independent Living; Public Utilities Commission of the

State of Colorado; Department of Public Utilities of the

Commonwealth of Massachusetts; Oklahoma Corporation

Commission; Public Service Commission of the State of

Connecticut, Department of Public Utility Control; New York

Telephone Company; New England Telephone and Telegraph

Company, Intervenors on Appeal, v. FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents,

AT & T Corp.; Competitive Telecommunications Association;

MFS Communications Company, Inc.; Airtouch Communications,

Inc.; Nextlink Communications, L.L.C.; Sprint Spectrum,

L.P.; National Cable Television Association, Inc.; MCI

Telecommunications Corporation; Sprint Corp.; Cox

Communications, Inc.; Vanguard Cellular Systems, Inc.;

Western Wireless Corporation; American Communications

Services, Inc.; KMC Telecom, Inc.; The Competition Policy

Institute; Association for Local Telecommunications

Services; Cellular Telecommunications Industry Association;

GST Telecom, Inc.; ACC Corp.; General Communication,

Inc.; Telecommunications Resellers Association; Consumer

Federation of America; Ad Hoc Telecommunications Users

Committee; Information Technology Industry Council;

America's Carriers Telecommunication Association; Jones

Intercable, Inc.; Telecommunications, Inc.; Teleport

Communications Group, Inc.; Rural Telecommunications Group;

Allied Associated Partners; Geld Information Systems;

Pronet, Inc.; Winstar Communications, Inc.; U.S. One

Communications Services; Comcast Corporation; Frontier

Corporation; Anaheim, California Public Utilities

Department; City of Long Beach, California; City of

Manassas, Virginia; Cable & Wireless, Inc.; National

Association of State Utility Consumer Advocates; Time

Warner Communications Holdings, Inc.; Personal

Communications Industry Association; Excel

Telecommunications, Inc.; Worldcom, Inc., Paging Network,

Inc.; Nextwave Telecom, Inc.; Small Cable Business

Association; Metrocall, Inc.; Texas Office of Public

Utility Counsel, Intervenors on Appeal,

Consumers' Utility Counsel Division, Georgia Governor's

Office of Consumer Affairs; Honorable John D. Dingell;

Honorable W.J. (Billy) Tauzin; Honorable Rick Boucher;

Honorable Dennis Hastert, Amici on Behalf of Petitioner,

Honorable Thomas J. Bliley, Jr.; Honorable Ernest F.

Hollings; Honorable Ted Stevens; Honorable Daniel K.

Inouye; Honorable Trent Lott; Honorable Edward J. Markey,

Amici on Behalf of Respondent.

BELL ATLANTIC-DELAWARE, INC.; Bell Atlantic-Maryland, Inc.;

Bell Atlantic-New Jersey, Inc.; Bell

Atlantic-Pennsylvania, Inc.; Bell Atlantic-Virginia, Inc.;

Bell Atlantic-Washington, D.C., Inc.; Bell Atlantic-West

Virginia, Inc., Petitioners,

Maryland Public Service Commission; SBC Communications,

Inc.; New York Telephone Company; New England Telephone

and Telegraph Company; US Telephone Association; GTE

Service Corporation; US West, Inc.; Bellsouth Corporation;

Bellsouth Telecommunications, Inc.; Ameritech Corporation, Intervenors on Appeal, v. FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents,

Sprint Corp.; Competitive Telecommunications Association;

Telecommunications Resellers Association; AT & T Corp.;

National Cable Television Association, Inc.; GST Telecom,

Inc.; MFS Communications Company, Inc.; KMC Telecom, Inc.;

ACC Corp.; Winstar Communications, Inc.; MCI

Telecommunications Corporation; America's Carriers

Telecommunication Association; Jones Communications, Inc.;

Airtouch Communications, Inc.; Cox Communications, Inc.,

Intervenors on Appeal.

PACIFIC TELESIS GROUP, Petitioner,

Maryland Public Service Commission; SBC Communications,

Inc.; New York Telephone Company; New England Telephone

and Telegraph Company; US Telephone Association; GTE

Service Corporation; US West, Inc.; Bellsouth Corporation;

Bellsouth Telecommunications, Inc.; Ameritech Corporation, Intervenors on Appeal, v. FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents,

Sprint Corp.; Competitive Telecommunications Association;

Telecommunications Resellers Association; AT & T Corp.;

National Cable Television Association, Inc.; GST Telecom,

Inc.; MFS Communications Company, Inc.; KMC Telecom, Inc.;

ACC Corp.; Winstar Communications, Inc.; MCI

Telecommunications Corporation; America's Carriers

Telecommunication Association; Jones Communications, Inc.;

Airtouch Communications, Inc.; Cox Communications, Inc.,

Intervenors on Appeal.

SBC COMMUNICATIONS, INC., Petitioner,

Maryland Public Service Commission; New York Telephone

Company; New England Telephone and Telegraph Company; US

Telephone Association; GTE Service Corporation; US West, Inc.; Bellsouth Corporation; Bellsouth Telecommunications, Inc.; Ameritech Corporation, Intervenors on Appeal, v. FEDERAL COMMUNICATIONS COMMISSION; United States of

America, Respondents,

Sprint Corp.; Competitive Telecommunications Association;

Telecommunications Resellers Association; AT & T Corp.;

National Cable Television Association, Inc.; GST Telecom,

Inc.; MFS Communications Company, Inc.; KMC Telecom, Inc.;

ACC Corp.; Winstar Communications, Inc.; MCI

Telecommunications Corporation; America's Carriers

Telecommunication Association; Jones Communications, Inc.;

Air touch Communications, Inc.; Cox Communications, Inc.,

Intervenors on Appeal.

Nos. 96-3519, 96-4080, 96-4082 and 96-4083.

United States Court of Appeals Eighth Circuit.

Submitted April 16, 1997.

Decided Aug. 22, 1997.

Mark Fogelman, San Francisco, CA, argued, for petitioners Public Utilities and People of the State of California.

Mark L. Evans, Washington, DC, argued, for petitioners Bell Atlantic, Pacific Telesis and SBC Communications, Inc. and intervenor GTE entities.

Christopher J. Wright, Washington, DC, argued, for respondents Federal Communications Commission and United States of America.

David W. Carpenter, Chicago, IL, argued, for intervenor AT & T Corp. et al.

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

HANSEN, Circuit Judge.

Before us are the petitions of the California Public Utilities Commission and various providers of local telecommunications services seeking review of certain rules issued by the Federal Communications Commission (FCC or Commission) pursuant to the Telecommunications Act of 1996. ¹ The petitioners and the intervenors supporting them (collectively "petitioners") argue that the FCC exceeded its jurisdiction in part in issuing dialing parity rules that encompass some purely intrastate telecommunications services, and they assert that one of the Commission's rules on numbering administration violates the terms of the Act. Consistent with our decision in the related case, Iowa Utils. Bd. v. FCC, 120 F.3d 753 and consolidated cases, 120 F.3d 753 (8th Cir.1997), we vacate the FCC's dialing parity rules in part, concluding that the FCC exceeded the scope of its jurisdiction. We find that the petitioners' challenge to the FCC's numbering administration rule, however, is not ripe for review.

I.

One of Congress's goals in passing the Telecommunications Act of 1996 was to open the local telephone markets to competition. See Telecommunications Act of 1996, Pub.L. No. 104-104, purpose statement, 110 Stat. 56 (1996). To accomplish this objective, the Act imposes several duties on the current providers of local telecommunications service (known as "incumbent local exchange carriers" or "incumbent LECs") including the duties to provide competing carriers with interconnection and unbundled access to the incumbents LECs' networks and to allow competing carriers to resell any telecommunications service that the incumbent LECs provide to their subscribers on a retail basis. 47 U.S.C.A. § 251(c)(2)-(4) (West Supp.1997). ² The FCC issued numerous rules in its First Report and Order ³ purporting to implement these as well as other provisions of the Act. In our earlier decision in Iowa Utils. Bd., we reviewed many of the Commission's regulations contained in its First Report and Order and held, in part, that the FCC exceeded its...