Telecommunications Research and Action Center v. F.C.C.

Citation750 F.2d 70,242 U.S.App.D.C. 222
Decision Date24 October 1984
Docket Number84-5077,Nos. 84-1035,s. 84-1035
PartiesTELECOMMUNICATIONS RESEARCH AND ACTION CENTER, et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Telephone & Telegraph Company, GTE Service Corporation, Intervenors. In re TELECOMMUNICATIONS RESEARCH AND ACTION CENTER, et al., Petitioners. American Telephone & Telegraph Company, Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Petition for Writ of Mandamus of an Order of the Federal Communications Commission

Petition for Review of an Order of the Federal Communications Commission

Herman Schwartz, Washington, D.C., with whom Robert M. Hausman, Washington D.C., was on brief, for petitioners in 84-1035 and 84-5077.

Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel, John E. Ingle, Jane E. Mago and Linda L. Oliver, Counsel, and Alexander P. Starr, law student intern, F.C.C., Washington, D.C., were on brief, for respondent in 84-1035 and 84-5077. Robert B. Nicholson and Nancy C. Garrison, Attys.; U.S. Dept. of Justice, Washington, D.C., also entered appearances for respondent United States of America in 84-1035.

Jules M. Perlberg, Chicago, Ill., Francine J. Berry and Alan C. Geolot, New York City, were on brief, for intervenor, American Telephone & Telegraph Co. in 84-1035 and 84-5077. Alfred A. Green, New York City, also entered an appearance for American Telephone & Telegraph Co.

William Malone and James R. Hobson, Washington, D.C., were on brief, for intervenor GTE Service Corp. in 84-1035. Richard McKenna, Washington, D.C., also entered an appearance for GTE Service Corp.

Before TAMM, WILKEY and EDWARDS, Circuit Judges.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

HARRY T. EDWARDS, Circuit Judge:

The Telecommunications Research & Action Center ("TRAC") and several other not-for-profit corporations and public interest groups petition this court for a writ of mandamus to compel the Federal Communications Commission ("FCC" or "the Commission") to decide certain unresolved matters now pending before the agency. The essence of TRAC's claim is that the FCC has unreasonably delayed determining whether American Telephone and Telegraph Company ("AT&T") must reimburse ratepayers for two separate instances of allegedly unlawful overcharges. The first instance relates to the rate of return earned by AT&T and the Bell System on interstate and foreign services furnished during 1978. The second concerns the treatment of expenses incurred by AT&T's manufacturing subsidiary, Western Electric, in its development of "customer premises equipment" ("CPE") 1 during 1980-1982.

The most important question that we face in our consideration of this interlocutory appeal is a threshold jurisdictional issue. Our resolution of this issue is of particular significance because it is dispositive of both the instant case and a similar appeal involving the Civil Aeronautics Board that was argued before this panel on the same day as this case. See note 22 infra.

Our jurisdictional inquiry focuses on whether a petition to compel unreasonably delayed agency action properly lies in this court or in the District Court, or whether the two courts have concurrent jurisdiction, when any final agency action in the matter would be directly reviewable only in the Court of Appeals. Although we find the precedent in this circuit to be less than clear on this question, we conclude that, where a statute commits final agency action to review by the Court of Appeals, the appellate court has exclusive jurisdiction to hear suits seeking relief that might affect its future statutory power of review.

On the merits of the instant appeal, we decide that, because the agency has assured us that it is now moving expeditiously to resolve the pending overcharge claims, we need not determine whether the cited delays are so egregious as to warrant mandamus. The court, however, will retain jurisdiction over this case until final disposition by the agency.

A. The Rate of Return on Interstate and Foreign Services in 1978

In 1976, acting under the ratemaking authority conferred by 47 U.S.C. Sec. 205(a), the FCC set the maximum rate of return for AT&T interstate and foreign operations at 9.5 percent, with a .5 percent additional margin to encourage productivity and efficiency. 2 The Commission agreed not to reduce AT&T's interstate rates provided that its overall rate of return did not exceed ten percent. 3 In order "to fully protect the public," however, the FCC required that AT&T maintain an accounting of its relevant revenues to facilitate refunds if an excessive rate of return should occur. 4

AT&T's 1978 interstate rate of return was either 10.22, 10.1, 10.02, or 9.89 percent, depending on the methodology used to calculate it. 5 On July 20, 1979, the petitioners filed a Petition for Enforcement of Accounting with the FCC in which they requested that the Commission determine whether AT&T had received excess revenues and, if so, that the FCC order appropriate relief to the ratepayers. 6 Rather than acting directly on this petition, the Commission issued a Notice of Inquiry on October 1, 1979, soliciting comments on several issues related to AT&T's earnings. 7 Both comments and reply comments were filed by the end of 1979. The Commission has taken no further action during the almost five years since the filing of comments.

Representative Timothy Wirth, Chairman of the Subcommittee on Telecommunications, Consumer Protection and Finance of the House Committee on Energy and Commerce, has twice written to the FCC to inquire about the unexplained delay in agency action. In 1981, FCC officials responded that they expected a staff recommendation that fall. 8 However, no such recommendation was produced. In the spring of 1984, agency officials modified their response and estimated that a staff recommendation would be issued that summer. 9 The agency failed on this commitment, too. Now, in the face of this court action, the Commission has recently indicated that it plans to resolve the matter on or before November 30, 1984. 10

B. The Treatment of CPE Expenses

In May of 1980, the FCC decided that CPE and enhanced telecommunications services 11 should no longer be regulated 12 under Title II of the Communications Act. 13 It is unnecessary to detail here the effects of this order on ratemaking and carrier accounting. It suffices to note that, in order to shield the regulated market from costs appropriately allocated to the competitive market and from anticompetitive activities, the Commission required AT&T to create a separate subsidiary to act in the enhanced services and CPE markets. 14 The FCC also required that all costs associated with competitive activities, such as CPE development costs, be charged solely to this subsidiary, not passed along to the regulated ratepayer. 15

Between May 1980, and January of 1983, Western Electric spent about $500 million developing CPE. Because these development costs were expensed as they were incurred, the Commission, in an order dated November 10, 1982, expressed concern that between 1980 and 1982 regulated service ratepayers might have impermissibly contributed to recovery of these development expenses. But because the FCC concluded that it could not determine from the existing record whether ratepayer reimbursement for these expenses was warranted, it ordered AT&T to provide it with additional information. 16 Due to the importance of this question and because of the significant amount of money involved the FCC also invited public comments. 17 AT&T filed its comments in December of 1982 and other comments were filed in January and February 1983. 18

On November 15, 1983, petitioners Florida Consumers Federation and others filed a Petition for Intervention and Expeditious Resolution. 19 On May 22, 1984, Chairman Wirth inquired about the status of this matter and was told that action was expected during the summer of 1984. 20 The Commission now says it will act with respect to the ratemaking treatment of these CPE development expenses on or before June 28, 1985. 21 To date, though, the Commission has not acted, either on the petition or on its own inquiry into Western Electric's CPE development expenses.


As an initial matter, this case raises two significant and recurrent jurisdictional questions. First, where a statute commits final agency action to review by the Court of Appeals, does that court have jurisdiction to hear suits seeking relief that would affect its future statutory power of review? Second, if the Court of Appeals does have jurisdiction, is that jurisdiction exclusive or concurrent with that of the District Courts? 22

We recognize that our precedent concerning jurisdiction over interlocutory appeals from agency action (or inaction) is somewhat inconsistent and may be confusing for litigants attempting to select the proper forum for these claims. 23 We are convinced that this state of disarray in which we find the law is the product of innocent inadvertence, sometimes attributable to a desire by the court and parties to promptly resolve claims of unreasonable delay, and sometimes attributable to a failure by the parties to raise or to pursue jurisdictional inquiries. Nevertheless, "[j]urisdiction is, of necessity, the first issue for an Article III court. The federal courts are courts of limited jurisdiction, and they lack the power to presume the existence of jurisdiction in order to dispose of a case on any other grounds." Tuck v. Pan American Health Organization, 668 F.2d 547, 549 (D.C.Cir.1981). We are therefore obliged to consider and finally resolve the question pertaining to the jurisdiction of the Court of Appeals to hear claims of the sort raised in this case and in the companion ALPA case. See note...

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