TeleSTAR, Inc. v. F.C.C., s. 88-1153
| Decision Date | 06 October 1989 |
| Docket Number | 88-1419,Nos. 88-1153,s. 88-1153 |
| Parties | , 58 USLW 2229 TeleSTAR, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and the United States of America, Respondents, MCI Telecommunications Corporation, Intervenor. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
On Petition for Review of an Order of the Federal Communications commission.
Donald F. Beach, for petitioner.
John E. Ingle, Deputy Associate Gen. Counsel, F.C.C., with whom Sue Ann Preskill, Atty., were for respondent.
William J. Byrnes, with whom John Wells King and James E. Dunstan, Washington, D.C., appeared on the motion to dismiss filed by intervenor.
Also entering an appearance for respondent was John J. Powers, III, Atty., U.S. Dept. of Justice, Washington, D.C.
Before MIKVA, EDWARDS and WILLIAMS, Circuit Judges.
Opinion for the Court filed PER CURIAM ON MOTION TO DISMISS PETITION FOR REVIEW NO. 88-1419
The question before us is whether a petition for review, unripe because of the pendency of a request for agency reconsideration, ripens so as to vest this court with jurisdiction once the agency issues its final decision on reconsideration. We hold that this court does not have jurisdiction to consider the prematurely-filed petition for review, even after the agency rules on the rehearing request. In order to obtain review of a now-final agency order, a new petition for review must be filed.
This action involves an application filed by TeleSTAR, Inc., and its principal shareholders, Doyal Evan Stewart and Walter Noel Stewart, for revocation of a license issued to MCI Telecommunications Corporation ("MCI") by the Federal Communications Commission ("FCC" or "Commission"). TeleSTAR's application alleged unlawful premature construction, unauthorized operation and failure to coordinate frequency usage.
In two orders dated January 25, 1988 and February 18, 1988, the FCC denied TeleSTAR's application. The FCC did find, however, that MCI had violated section 319(a) of the Communications Act ("the Act"), 47 U.S.C. Sec. 319(a) (1982), by commencing station construction prior to the receipt of Commission authorization. The Commission determined that the violations were willful and repeated as defined in 47 U.S.C. Sec. 503(b)(1) (1982), and that two were actionable under that section. Based on these findings, the FCC issued to MCI a Notice of Apparent Liability for forfeiture in the amount of $10,000.
The instant petition for review, No. 88-1419, filed on June 13, 1988, challenges the Commission's June 2, 1988 ruling denying TeleSTAR's "Petition for Revocation of MCI's FCC Authority Revisited--New FCC Violations by MCI during 1988." On June 2, 1988, TeleSTAR also filed "Comments on Reconsideration" with the FCC. The Commission treated these comments as a petition for reconsideration, and the agency denied TeleSTAR's reconsideration request in an order dated November 21, 1988. Because the petition for review was filed five months before the agency ruled on TeleSTAR's petition for reconsideration, MCI moved to dismiss the petition for review as premature. Although a petition for review from the November 21, 1988 reconsideration order was filed, it has been dismissed as untimely pursuant to separate order of the court. See TeleSTAR, Inc. v. FCC, No. 89-1156.
This court recently held that "a pending petition for administrative reconsideration renders the underlying agency action nonfinal, and hence unreviewable, with respect to the petitioning party." United Transportation Union v. ICC, 871 F.2d 1114 (D.C.Cir.1989) ("UTU "). Therefore, a party can no longer simultaneously move for reconsideration before the agency and petition this court for review. See ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270, 284, 107 S.Ct. 2360, 2368-69, 96 L.Ed.2d 222 (1987) ().
Based on UTU, TeleSTAR's June 13, 1988 petition for review was premature when filed. If TeleSTAR's motion for reconsideration were still pending before the agency, the petition for review clearly would have to be dismissed. Although the agency has since acted on the motion for reconsideration and there are presently no related matters pending before the FCC, the question still remains as to whether this court now has jurisdiction over the prematurely-filed petition for review.
This court has in the past dismissed challenges to non-final agency action, even after final agency action has been taken. See Public Citizen v. NRC, 845 F.2d 1105 (D.C.Cir.1988) (); Western Union Telegraph Co. v. FCC, 773 F.2d 375 (D.C.Cir.1985) (...
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