Public Utility Com'n of Texas v. F.C.C., 88-1274
| Decision Date | 04 October 1989 |
| Docket Number | No. 88-1274,88-1274 |
| Citation | 886 F.2d 1325 |
| Parties | , 105 P.U.R.4th 437 PUBLIC UTILITY COMMISSION OF TEXAS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, The Utilities Telecommunications Council, United States Telephone Association, Contel Corporation, Atlantic Richfield Company, Ameritech Operating Companies, et al., GTE Southwest Incorporated, The People of the State of California, et al., The Organization for the Protection and Advancement of Small Telephone Companies, The Independent Coalition, The Association of American Railroads, Southwestern Bell Telephone Company, The Ad Hoc Telecommunications Users Committee, The Mountain States Telephone and Telegraph Company, International Business Machines Corporation, Intervenors. , et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Steven Baron and James R. Hobson, with whom Paul Rodgers, Charles D. Gray, Washington, D.C., and William Malone were on the joint brief, for petitioners in Nos. 88-1274, 88-1287 and 88-1294.
Lisa M. Zaina also entered an appearance for petitioners in 88-1287 for intervenor Nat. Ass'n of Regulatory Com'n in Nos. 88-1274 and 88-1294.
Paul Rodgers and Charles D. Gray, Washington, D.C., also entered appearances for intervenor Nat. Ass'n of Regulatory Com'n in Nos. 88-1274 and 88-1294.
John E. Ingle, Deputy Associate Gen. Counsel, F.C.C., with whom Diane S. Killory, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel, and Linda L. Oliver, Counsel, F.C.C., Washington, D.C., were on the joint brief for respondents in Nos. 88-1274, 88-1287 and 88-1294.
Catherine G. O'Sullivan and Andrea Limmer, Attys., Dept. of Justice, Washington, D.C., were on the brief for respondents in Nos. 88-1274, 88-1287 and 88-1294.
Marion L. Jetton, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for respondents in Nos. 88-1274, 88-1287 and 88-1294.
Richard Kennon Willard, with whom Philip Malet, Washington, D.C., was on the brief, for intervenor Atlantic Richfield Co. in Nos. 88-1274, 88-1287 and 88-1294.
Tyrone Brown also entered an appearance for intervenor Atlantic Richfield Co. in Nos. 88-1287 and 88-1294.
E. William Henry, Rodney L. Joyce, Edwin N. Lavergne, and Frederick M. Joyce, Washington, D.C., were on the brief for intervenor Southern New England Telephone Co., et al. in Nos. 88-1274, 88-1287 and 88-1294.
Harvey J. Shulman, Washington, D.C., also entered an appearance for intervenor Southern New England Telephone Co., et al. in Nos. 88-1274, 88-1287 and 88-1294.
Charles M. Meehan, Shirley S. Fujimoto, Wayne V. Black and G. William Frick, Washington, D.C., were on the joint brief for intervenors-respondents, Utilities Telecommunications Council, American Petroleum Institute and Ass'n of American Railroads in Nos. 88-1274, 88-1287 and 88-1294.
Hollis G. Duensing, John T. Sullivan, George Petrutsas, Leonard R. Raish, Washington, D.C., and Barry Lambergman also entered appearances for intervenor Ass'n of American Railroads in No. 88-1274.
C. Douglas Jarrett, Washington, D.C., also entered an appearance for intervenor American Petroleum Institute in Nos. 88-1274, 88-1287 and 88-1294.
Janice E. Kerr, J. Calvin Simpson, San Francisco, Cal., and Ellen S. LeVine were on the brief for intervenor The People of the State of Cal., et al. in Nos. 88-1274, 88-1287 and 88-1294.
Martin T. McCue, Roselle, Ill., entered an appearance for intervenor U.S. Telephone Ass'n in Nos. 88-1274, 88-1287 and 88-1294.
John C. Wohlstetter entered an appearance for intervenor Contel Corp. in Nos. 88-1274 and 88-1294.
Alfred Winchell Whittaker, Richmond, Va., Floyd S. Keene, Milwaukee, Wis., and Michael J. Karson entered appearances for intervenor Ameritech Operating Companies, et al. in Nos. 88-1274 and 88-1287.
James R. Hobson also entered an appearance for intervenor GTE Southwest Inc. in Nos. 88-1274 and 88-1287.
Ellen S. Deutsch, Washington, D.C., entered an appearance for intervenor Independent Coalition in Nos. 88-1274 and 88-1287.
Andrew G. Mulitz, Washington, D.C., entered an appearance for intervenor Organization for Protection and Advancement of Small Telephone Companies in Nos. 88-1274, 88-1287 and 88-1294.
William C. Sullivan, Michael J. Zpevak, Dan T. Foley and Liam S. Coonan, St. Louis, Mo., entered appearances for intervenor Southwestern Bell Telephone Co. in Nos. 88-1274, 88-1287 and 88-1294.
James S. Blaszak, Charles C. Hunter and Laura C. Mow, Washington, D.C., entered appearances for intervenor Ad Hoc Tele communicationsUsers Committee in Nos. 88-1274, 88-1287 and 88-1294.
Dana A. Rasmussen and Robert B. McKenna, Denver, Colo., entered appearances for intervenor Mountain States Tele. and Tele. Co., et al. in Nos. 88-1274, 88-1287 and 88-1294.
Howard C. Davenport, Mary J. Sisak, Charles A. Tievsky and Peter G. Wolfe entered appearances for intervenor Public Service Com'n of the District of Columbia in No. 88-1274.
John F. Povilaitis, Harrisburg, Pa., Daniel P. Delaney and Lawrence F. Barth, Halifax, Pa., entered appearances for intervenor Pennsylvania Public Utility Com'n in Nos. 88-1274, 88-1287 and 88-1294.
J. Roger Wollenberg, Roger M. Witten, Washington, D.C., and Kevin H. Cassidy, Purchase, N.Y., entered appearances for intervenor International Business Machines Corp. in Nos. 88-1274, 88-1287 and 88-1294.
Saul Fisher, Bedminster, N.J., Mary McDermott and Martin J. Silverman entered appearances for intervenor New York Telephone Co., et al. in No. 88-1274.
James R. Young and Lawrence W. Katz entered appearances for intervenor Bell Atlantic Telephone Companies in Nos. 88-1274, 88-1287 and 88-1294.
Lawrence G. Malone, Albany, N.Y., entered an appearance for intervenor New York Public Service Com'n in No. 88-1287.
Joseph G. Donahue, Portland, Me., Peter G. Ballou, Mitchell M. Tannenbaum, Augusta, Me., and Joel B. Shifman, Charleston, W.Va., entered appearances for intervenor Maine Public Utilities Com'n in No. 88-1287.
Donald I. Howell and Marsha H. Smith, Boise, Idaho, entered appearances for intervenor Idaho Public Utilities Com'n in Nos. 88-1287 and 88-1294.
Gregory John Krasovsky entered an appearance for intervenor Florida Public Service Com'n in No. 88-1287.
Frank J. Kelley, Detroit, Mich., Louis J. Caruso, Don L. Keskey, Lansing, Mich., Ronald D. Eastman, Washington, D.C., and Lynda S. Mounts entered appearances for intervenor State of Mich. and the Michigan Public Service Com'n in Nos. 88-1287 and 88-1294.
Steven Baron also entered an appearance for intervenor Public Utility Com'n of Texas in No. 88-1287.
Before ROBINSON, EDWARDS and SILBERMAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Petitioners seek review of a Federal Communications Commission order pre-empting an order of the Public Utility Commission of Texas ("Texas PUC") that, in turn, prohibited the Southwestern Bell Telephone Company ("Southwestern") from providing the Atlantic Richfield Company ("ARCO") with additional interconnections to the public switched telephone network in Dallas, Texas. Petitioners argue that the FCC's pre-emption of the Texas PUC's order exceeds the authority delegated to the FCC under the Communications Act of 1934, as amended. 1 Petitioners further contend that the FCC's order arbitrarily departed from Commission precedent and unreasonably held that the Texas PUC's order violated ARCO's federal right of interconnection with the public network. We conclude that the FCC permissibly pre-empted the Texas PUC's order and that the Commission was neither arbitrary nor capricious in reaching its decision. Accordingly, we deny the petition for review.
ARCO's Texas headquarters are in Dallas, and it maintains a research complex in Plano, a Dallas suburb, 19 miles away. Southwestern, a Basic Operating Company ("BOC") formerly part of the Bell System, is the state-certificated telephone monopoly for the area that includes Dallas. GTE Southwest (formerly the independent General Telephone Company), a wholly-owned subsidiary of GTE Corporation, enjoys a similarly exclusive state franchise for the area that includes Plano.
ARCO operates a private FCC-licensed microwave communications network, ARCOnet, that transmits voice and data among ARCO's offices throughout the United States. Both ARCO's facilities in Dallas and Plano are connected to ARCOnet. ARCO's telecommunications to or from locations not served directly by ARCOnet must, as is true of any other private network, be routed through the public network which interconnects locations in the United States. Customers like ARCO gain access to the public network by obtaining trunk lines from a telephone company which typically interconnect a customer's private branch exchange 2 ("PBX") switchboard to the local office of the telephone company.
Prior to 1983, ARCO leased trunk lines connecting its Dallas PBX from Southwestern and trunk lines connecting its Plano lab from GTE. But because of ARCOnet, it was possible for ARCO to route a call through its microwave network from the Plano lab to the Dallas PBX and thereafter to the public network through Southwestern's facilities--thereby entirely bypassing GTE. The trunk lines ARCO used in both locations were primarily Direct Inward Dialing ("DID") trunks 3 available to customers with PBXs. When provided with DID trunks, a customer is also given a corresponding set of DID telephone numbers which the customer is free to assign to telephone stations "behind" its PBX in any way it chooses. Thus, ARCO could have assigned (the record does not show whether it did) a certain number of DID numbers provided by Southwestern to Plano stations which could then be connected to ARCO's Dallas PBX through ARCOnet.
In 1983 ARCO, dissatisfied with the quality and reliability of GTE's service, notified GTE that ARCO would no longer need 73...
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