Southwestern Bell Corporation v. Federal Communications Commission, and United States of America, United States Telephone Association, Intervenors

43 F.3d 1515, 310 U.S. App. D.C. 90, 76 Rad. Reg. 2d (P & F) 1589, 1995 U.S. App. LEXIS 1071
CourtCourt of Appeals for the D.C. Circuit
DecidedJanuary 20, 1995
Docket93-1562, 93-1568, 93-1590 and 93-1624
StatusPublished
Cited by9 cases

This text of 43 F.3d 1515 (Southwestern Bell Corporation v. Federal Communications Commission, and United States of America, United States Telephone Association, Intervenors) 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
Southwestern Bell Corporation v. Federal Communications Commission, and United States of America, United States Telephone Association, Intervenors, 43 F.3d 1515, 310 U.S. App. D.C. 90, 76 Rad. Reg. 2d (P & F) 1589, 1995 U.S. App. LEXIS 1071 (D.C. Cir. 1995).

Opinions

Opinion for the Court filed by Chief Judge EDWARDS.

Concurring opinion filed by Circuit Judge SILBERMAN.

HARRY T. EDWARDS, Chief Judge:

This case presents yet another chapter in the Federal Communications Commission’s (“FCC” or “Commission”) series of attempts to relax the tariff-filing requirements for [1517]*1517nondominant common carriers. After initially adopting rules permitting nondominant common carriers to avoid filing tariffs, the FCC later adopted rules forbidding such filing. Courts struck down both attempts under the view that Congress’s mandate in the rate-filing section of the Communications Act of 1934 (“Communications Act” or “Act”), that “[e]very common carrier ... shall ... file” tariffs with the FCC, 47 U.S.C. § 203(a) (1988), prevented such rules. Despite the Commission’s policy rationales, courts found that the FCC had no authority to change Congress’s clear command.

In this case, the FCC has attempted again to relax the filing requirements for nondomi-nant common carriers, only this time it has proposed to adopt a policy of permitting non-dominant common carriers to file a range of rates as opposed to fixed rates showing a schedule of charges. Tariff Filing Requirements for Nondominant Common Carriers, 8 F.C.C.R. 6752 (1993) (“Range Tariff Order"). Under this most recent proposal, non-dominant carriers are given a competitive advantage over dominant common carriers. Petitioners American Telephone and Telegraph Company (“AT & T”) and three Bell Operating Companies (“BOCs”), dominant common carriers under the FCC’s rules, challenge the Range Tariff Order, alleging that it violates section 203(a) of the Communications Act, which requires all common carriers to file “schedules showing all charges.” 47 U.S.C. § 203(a).

The Commission offers two principal arguments supporting the disputed Range Tariff Order. First, the FCC contends that section 203(a)’s mandate, that common carriers file “schedules showing all charges,” does not preclude the use of a range of rates for particular charges. Because the Act does not define “schedules,” the Commission argues, it reasonably could conclude that the Act allows the filing of a range of rates. Second, the FCC contends that, even if section 203(a) cannot reasonably be interpreted to allow some common carriers to file range tariffs, the Commission could adopt the Range Tariff Order under section 203(b), which grants the Commission authority to “modify any requirement” of the section. 47 U.S.C. § 203(b)(2) (1988 & Supp. V 1993). We are not persuaded by these arguments.

We find that the Supreme Court’s recent decision in MCI Telecommunications Corp. v. AT & T, — U.S. -, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994) (“MCI v. AT & T”), which held that Congress granted the Commission very modest modification authority under section 203(b), largely disposes of the FCC’s second argument. With respect to the Commission’s first argument, we find that the Range Tariff Order violates the clear mandate of section 203(a), that every common carrier file “schedules showing all charges.” 47 U.S.C. § 203(a). Because the Commission disregarded Congress’s mandate in section 203(a) and overstepped the limited modification authority that it retains under section 203(b), we vacate the Range Tariff Order.

I. Background

A Congress and the Communications Act

Title II of the Communications Act contains the scheme Congress established to regulate the telecommunications industry. 47 U.S.C. §§ 201-228 (1988 & Supp. V 1993). The Act authorizes the FCC to regulate the rates charged for communication services to ensure that they are reasonable and nondiscriminatory. Section 203(a), the rate-filing provision, commands that, “[e]very common carrier ... shall ... file ... schedules showing all charges ... and showing the classifications, practices, and regulations affecting such charges.” Id. § 203(a). Section 203(c) mandates that carriers charge only the filed rate, stating, “no carrier shall ... charge ... a greater or less or different compensation ... than the charges specified in the schedule.” Id. § 203(e). Other provisions in title II are premised on the rate-filing provision. For example, if common carriers do not charge their filed rates, the Commission, by its own motion or upon complaint, may hold hearings and declare unlawful rate increases under section 204, and prescribe reasonable charges under section 205. Id. §§ 204, 205. Section 203(b) grants the Commission authority to “modify any requirement ... of this section either in par[1518]*1518ticular instances or by general order applicable to special circumstances or conditions.” Id. § 203(b)(2).

In 1934, when Congress enacted the Communications Act and created the FCC, AT & T held a virtual monopoly over the Nation’s telephone service. The regulatory scheme Congress devised in title II meant to respond to that situation, to ensure competition among interstate common carriers and reasonable rates for consumers. In the 1970s, technological, advances allowed competitors to enter the long-distance-service market. The Commission, recognizing the feasibility of greater competition, passed regulations to facilitate competitive entry. In 1979, with long-distance-service competition established, the FCC decided to reexamine tariff-filing requirements fearing that they served only to impose unnecessary costs on new entrants, and initiated a series of rulemakings, collectively known as the Competitive Carrier proceedings.

B. The Commission and the Competitive Carrier Proceedings

In the Competitive Carrier proceedings, the Commission moved toward gradual deregulation of the nondominant common carriers in the interstate telephone industry. In its First Report and Order, 85 F.C.C.2d 1, 20-24 (1980), the FCC distinguished between dominant carriers, those possessing market power, and nondominant carriers, those not found to be dominant, and relaxed some of the filing procedures for nondominant carriers. Id. at 30-49. In the long-distance market, this amounted to a distinction between AT & T and the BOCs, dominant carriers, and everyone else.

In the Second Report and Order, 91 F.C.C.2d 59 (1982), the Commission adopted a policy of permissive detariffing, or optional filing, for some nondominant carriers, and extended that permissive detariffing to other nondominant carriers in the Fourth Report and Order, 95 F.C.C.2d 554 (1983). In its Sixth Report and Order, 99 F.C.C.2d 1020 (1985), the Commission made mandatory the detariffing policy, prohibiting nondominant carriers from filing tariffs.

MCI Telecommunications Corporation (“MCI”) challenged the Sixth Report and Order which required MCI and other non-dominant carriers not only to stop filing tariffs with the Commission in the future, but to cancel their tariffs then on file.

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43 F.3d 1515, 310 U.S. App. D.C. 90, 76 Rad. Reg. 2d (P & F) 1589, 1995 U.S. App. LEXIS 1071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southwestern-bell-corporation-v-federal-communications-commission-and-cadc-1995.