Consumer Federation of America v. Federal Communications Commission

348 F.3d 1009, 358 U.S. App. D.C. 271, 2003 U.S. App. LEXIS 22397
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 31, 2003
DocketNos. 02-1337 & 02-1347
StatusPublished
Cited by15 cases

This text of 348 F.3d 1009 (Consumer Federation of America v. Federal Communications Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Consumer Federation of America v. Federal Communications Commission, 348 F.3d 1009, 358 U.S. App. D.C. 271, 2003 U.S. App. LEXIS 22397 (D.C. Cir. 2003).

Opinion

Opinion for the Court filed by Circuit Judge RANDOLPH.

RANDOLPH, Circuit Judge:

This dispute arose during the Federal Communications Commission’s review of a proposed merger between AT&T Broadband Corp. (“AT&T”) and Comcast Corp. The Commission rejected a request from several consumer groups to place in the record an agreement between AT&T and Time Warner, Inc.1 The agreement established the terms by which Time Warner’s AOL subsidiary would provide internet service to customers of the merged firm. The consumer groups - the Consumer Federation of America, Consumers Union, and the Center for Digital Democracy - immediately petitioned for judicial review of this decision. They later filed an appeal in this court from the Commission’s Order approving the license transfers required to consummate the merger.

I.

At the time they decided to merge, AT&T was the nation’s largest cable company, while Comcast was its third largest. AT&T also owned an interest in Time Warner Entertainment, L.P. (“TWE”), a limited partnership with Time Warner and the nation’s second-largest cable provider. The Commission may not have approved the merger if the new firm - AT&T Com-cast Corp. - maintained its interest in all three cable systems. So the merging parties proposed that, pending an eventual divestiture, AT&T would insulate its TWE interest by placing it in an irrevocable trust. The parties executed an agreement with Time Warner to implement this arrangement (the “Restructuring Agreement”).

In connection with the Restructuring Agreement, the parties also negotiated the agreement at the center of this case - the AOL ISP Agreement. The AOL ISP Agreement is not in the record, but the parties agree that it establishes the terms by which customers of AT&T Comcast would be able to choose AOL as their internet service provider (“ISP”). The parties also agree that the AOL ISP Agreement contains two additional features. First, the agreement is non-exclusive - that is, AT&T Comcast could negotiate similar agreements with other ISPs, giving its customers a choice of providers. Second, the agreement prohibited AOL from providing streaming video to AT&T Comcast’s customers.

[273]*273At the request of the Commission staff, the merging parties filed the Restructuring Agreement with the Commission. Initially they withheld its exhibits, the AOL ISP Agreement among them. The merging parties were reluctant to file the exhibits wholesale because of their commercially sensitive nature, and because they did not think the exhibits were relevant. They asked the Commission staff to review the exhibits at the Department of Justice, where they had submitted them in connection with the Department’s merger review process. If the staff identified any particular exhibit as relevant to the merger, the merging parties would then file it with the Commission. The staff agreed to this proposal, reviewed the documents and determined that the AOL ISP Agreement was not relevant to the Commission’s inquiry.

Meanwhile, the consumer groups learned of the AOL ISP Agreement through press reports. They filed a motion asking the Commission to force AT&T and Comcast to file the AOL ISP Agreement and make it part of the administrative record. The Commission denied the motion, In re Applications for Consent to the Transfer of Control of Licenses from Comcast Corp. and AT&T Corp. to AT&T Comcast Corp., 17 F.C.C.R. 22,633, 2002 WL 31477644 (2002) (“the Motion Order”), and the groups petitioned this court for review pursuant to 47 U.S.C. § 402(a) and 28 U.S.C. § 2342(1). The following month, the Commission approved the license transfers required to consummate the merger. In re Applications for Consent to the Transfer of Control of Licenses from Comcast Corp. and AT&T Corp. to AT&T Comcast Corp., 17 F.C.C.R. 23,246, 2002 WL 31526762 (2002) (“the Merger Order”). The consumer groups appealed that decision pursuant to 47 U.S.C. § 402(b)(6). We consolidated the petition and the appeal.

II.

There are two preliminary matters. The first deals with the petition for judicial review. The Motion Order was not a “final” order within the meaning of the Hobbs Act, 28 U.S.C. § 2342(1). It did not finally decide whether the Commission would approve transfer of the licenses and it did not end the proceedings before the Commission. See Illinois Citizens Comm. for Broad. v. FCC, 515 F.2d 397, 402 (D.C.Cir.1974). While we therefore lack jurisdiction over the petition for review, and will dismiss it, this is of little consequence.2 The Merger Order is appealable under 47 U.S.C. § 402(b)(6), and the Administrative Procedure Act, 5 U.S.C. § 704, provides that an agency “ruling not directly reviewable” - such as the Motion Order - may be reviewed with the final agency action.

The second matter deals with standing. The intervenors - AT&T, Com-cast and Comcast Holdings Corp. - argue that the consumer groups lack standing. An association has standing to pursue litigation “on behalf of its members when its members would have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires members’ participation in the lawsuit.” Hunt v. Washington State Apple Adver. Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977). Here no one questions that the consumer groups meet the last two Hunt conditions. The dispute is about the first condition - whether any member can establish individual standing, which requires a showing [274]*274that the member has suffered (1) injury-in-fact (2) traceable to the Merger Order (3) that could be redressed by vacating and remanding the Merger Order. See Tel. & Data Sys., Inc. v. FCC, 19 F.3d 42, 46 (D.C.Cir.1994). It is enough if just one member of the groups has standing. City of Waukesha v. EPA, 320 F.3d 228, 235-37 (D.C.Cir.2003) (per curiam); Nat’l Lime Ass’n v. EPA, 233 F.3d 625, 636 (D.C.Cir.2000).

To establish standing, the Consumer Federation of America submitted a short affidavit from its research director (and member), Mark Cooper.3 Cooper asserts that he subscribed to Comcast’s cable service both before and after the merger.4 He identifies two injuries he suffered as a result of the Commission’s decision to approve the merger. The first is that his cable rates have risen since then.

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Bluebook (online)
348 F.3d 1009, 358 U.S. App. D.C. 271, 2003 U.S. App. LEXIS 22397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/consumer-federation-of-america-v-federal-communications-commission-cadc-2003.