MCI Telecommunications Corp. v. Federal Communications Commission

917 F.2d 30, 286 U.S. App. D.C. 316
CourtCourt of Appeals for the D.C. Circuit
DecidedOctober 23, 1990
DocketNos. 89-1382, 89-1384, 89-1390, 89-1695 and 89-1733
StatusPublished
Cited by1 cases

This text of 917 F.2d 30 (MCI Telecommunications Corp. 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
MCI Telecommunications Corp. v. Federal Communications Commission, 917 F.2d 30, 286 U.S. App. D.C. 316 (D.C. Cir. 1990).

Opinion

SILBERMAN, Circuit Judge:

MCI Telecommunications, US Sprint, Williams Telecommunications, and Independent Data Communications Manufacturing Association (“IDCMA”) petition for review of an order by the Federal Communications Commission concerning the lawfulness of a tariff filed by AT & T. We grant the petition in part.

I.

This case involves four of AT & T’s “Tariff 12” (or “integrated service package” or “VTNS”) offerings which are composites of different individually-tariffed AT & T telecommunications services. The specific services, service amounts, ’and rates for each package are arrived at through negotiation between AT & T and a particular customer, each of whom is a large corporation. The rates for the package are lower than the aggregate rates the customers would have paid had they purchased each service individually from AT & T, but the customer generally commits to accepting the service package on a long-term basis and sacrifices the flexibility of determining exactly how AT & T will provide service. Non-dominant carriers — petitioners included, we are told — offer integrated service packages to large users in competition with AT & T.

The four options at issue here were filed as tariffs in accordance with the FCC requirement that AT & T offer telecommunications services only in this manner, see 47 U.S.C. § 203 (1988). Each tariff designated the services constituting the package and the rate to be charged and also restricted the package’s availability to certain areas of the nation. Shortly after each tariff was filed, petitioners asked the FCC to reject it as unlawful, or alternatively to suspend it and investigate its lawfulness. The FCC concluded that each tariff was not so patently unlawful as to warrant rejection but that certain issues regarding the tariffs merited further investigation. See AT & T Communications, Tariff F. C. C. Transmittal Nos. 1018 and 1102 No. 12, Memorandum Opinion and Order, 3 F.C.C.Red 995 (Feb. 9, 1988) (“February 9 Order”); AT & T Communications, Revisions to Tariff F.C.C. No. 12, Memorandum Opinion and Order, 3 F.C.C.Rcd 2837 (Apr. 28, 1988); AT & T Communications, Revisions to Tariff F. C. C. No. 12, Memorandum Opinion and Order, 4 F.C. C.Rcd 811 (Oct. 28,1988); AT & T Communications, Revisions to Tariff F.C.C. No. 12, Memorandum Opinion and Order, 4 F.C.C.Rcd 1342 (Jan. 27, 1989).

The Commission accordingly set the tariffs for a hearing (under 47 U.S.C. § 204 (1988)), and designated for inquiry, inter alia, the questions: whether the lower rates charged for the integrated packages constitute an unreasonable discrimination in provision of like communication service, whether the tariffs comply with the FCC’s Private Line Rate guidelines (located at 47 [320]*320C.F.R. Part 61.40), and whether integrated packages comport with the FCC’s policies of encouraging resale of telecommunications services. See February 9 Order, 3 F.C.C.Rcd at 998-99. The FCC permitted the tariffs to remain in effect pending the outcome of the hearing.

After reviewing the tariffs, AT & T’s direct case, petitioners’ opposition, and comments from numerous interested parties, but declining to examine the contracts between AT & T and its customers, the FCC issued an order declaring each tariff unlawful. See AT & T Communications, Revisions to Tariff F.C.C. No. 12, Memorandum Opinion and Order, 4 F.C.C.Rcd 4932 (Apr. 18, 1989) (“April 18 Order”). The Commission focused primarily on the question whether or not the integrated service packages and an aggregation of their component services are “like communications services” within the meaning of Section 202 of the Communications Act, 47 U.S.C. § 202 (1988) (if services are “like,” any unreasonable price disparity between them is prohibited).

The Commission determined that the two are not “like,” and consequently that AT & T did not have to justify the lower prices for the integrated packages. It rejected petitioners’ contention that the different offerings were essentially the same because a customer receives exactly the same communications capabilities and technology whether it purchases the services separately or in integrated form. It held instead that integrated packages are functionally different, reasoning that AT & T retains the flexibility to alter “the particular proportion of separately tariffed component services” and the facilities used to provide them without changing the price or informing the customer; that AT & T can isolate and respond to system trouble more easily when it sells services as a package and can eliminate duplicative engineering and administrative reviews by not selling each service separately; that the large volume involved in integrated packages results in cost savings to AT & T; and that customers perceive a difference between the two services, both because integrated service packages allow them to avoid the management and transaction costs associated with piecing together a communications system from individual services and overseeing that system and because integrated service packages offer greater price stability but entail longer commitments than individual services. See April 18 Order, 4 F.C.C.Rcd at 4936-37.

The FCC did determine that the packages are like each other and consequently that AT & T had to demonstrate that the price disparities among the different packages were not unreasonable. It decided this last issue rather cursorily, however, noting only that the difference in the services comprising each package “account for differences among customers’ bills or differences among packages in pricing.” April 18 Order, 4 F.C.C.Rcd at 4938.

The Commission flatly rejected the contention of one petitioner, that integrated packages are per se violations of the nondiscrimination requirement of the Communications Act, see 47 U.S.C. § 202(a), merely because they are based on contractual negotiations with a single customer and are specifically designed to meet the needs of only that customer. Relying upon our decision in Sea-Land Service, Inc. v. ICC, 738 F.2d 1311 (D.C.Cir.1984), it held that integrated packages could be consistent with a carrier’s non-discrimination duty if the carrier then made the package “generally available” to all potential customers with the same or similar communications needs. April 18 Order, 4 F.C.C.Rcd at 4938-39. Each Tariff 12 option contained geographical restrictions on availability, however, and for that reason alone the FCC determined that AT & T had not made them generally available and that they were thus unlawful. It allowed AT & T to continue providing the integrated service but required it either to refile the tariffs without the geographical restrictions or to withdraw the service within 30 days.

By striking down the tariffs on the geographical restriction ground, the FCC [321]

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Related

MCI Telecommunications Corporation v. Federal Communications Commission and United States of America, American Telephone and Telegraph Company, Mountain States Telephone and Telegraph Company, Us Sprint Communications Company Limited Partnership, Itt Communications Services, Inc., Competitive Telecommunications Association, Independent Data Communications Manufacturers Association, Inc., Southwestern Bell Telephone Company, Ad Hoc Telecommunications Users Committee, Intervenors. Us Sprint Communications Company Limited Partnership v. Federal Communications Commission and United States of America, American Telephone and Telegraph Company, MCI Telecommunications Corporation, Mountain States Telephone and Telegraph Company, Itt Communications Services, Inc., Competitive Telecommunications Association, Independent Data Communications Manufacturers Association, Inc., Southwestern Bell Telephone Company, Ad Hoc Telecommunications Users Committee, Intervenors. Independent Data Communications Manufacturers Association, Inc. v. Federal Communications Commission and United States of America, Us Sprint Communications Company Limited Partnership, MCI Telecommunications Corporation, Ad Hoc Telecommunications Users Committee, Mountain States Telephone and Telegraph Company, Itt Communications Services, Inc., Southwestern Bell Telephone Company, Competitive Telecommunications Association, American Telephone and Telegraph Company, Intervenors. Independent Data Communications Manufacturers Association, Inc. v. Federal Communications Commission and United States of America, Us Sprint Communications Company Limited Partnership, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Inc., Michigan Bell Telephone Company, the Ohio Bell Telephone Company, and Wisconsin Bell, Inc. (Ameritech Operating Companies), MCI Telecommunications Corporation, American Telephone and Telegraph Company, Ad Hoc Telecommunications Users Committee, International Business MacHines Corporation, Southwestern Bell Telephone Company, Intervenors. Williams Telecommunications Group, Inc. v. Federal Communications Commission and United States of America, Independent Data Communications Manufacturers Association, Inc., Ad Hoc Telecommunications Users Committee, Us Sprint Communications Company Limited Partnership, International Business MacHines Corporation, American Telephone and Telegraph Company, Southwestern Bell Telephone Company, Intervenors
917 F.2d 30 (D.C. Circuit, 1990)

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Bluebook (online)
917 F.2d 30, 286 U.S. App. D.C. 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mci-telecommunications-corp-v-federal-communications-commission-cadc-1990.