Interpretation of Federal Communication Commission Regulations

Author: LegalEase Solutions 

Introduction

 The research below indicates that the law pertaining to the Federal Communications Commission is interpretative to a large extent.  The Chevron principle, taken from the Chevron case discussed below, affirms that when there is a question of interpretation of a regulatory rule, the agency’s interpretation would prevail over that of the court, as the agency has been appointed specifically for the particular purpose.  The FCC is authorized by the constitution to oversee the activities of the state Public Commission and in case of error on its part, the FCC would preempt the State commission.

The State commission caters to the interconnections between carriers within the state, the compensation issues involved therein, and other intrastate telecommunication carrier issues. These interconnections and compensations are imposed upon local carriers by the FCC for the sake of better communication facilities for the public. Any appeal against orders of the State Commission would be entertained by the District Federal Court.  On the other hand, all carriers interconnection issues beyond the state limits-matters of intrastate jurisdiction, and foreign carriers based in the US would come under the jurisdiction of the FCC and any appeals, reviews or annulment of FCC orders would need to go to Court of Appeals in whose jurisdiction the business takes place or in some cases to the Court of Appeals in the District of Columbia.

Further appeals would finally lie from Court of Appeals to the Supreme Court which would be final.  However, the FCC has been recognized by the constitution and congress as being legally binding on its subjects unless, clear injury, and not hypothetical injury can be shown.  The burden of showing this lies on the Plaintiff who needs to prove the imminent injury, and has to follow  the specific procedure laid down by the statute for appeals, as discussed above.  As discussed in the Qwest case (see below) the standing of the plaintiff is a matter to be proven to show the presence of the injury. Evidence can be taken for this purpose. Most importantly, appeals cannot lie to the court of appeals from orders of FCC unless there is proof of application of review of its own orders to the FCC itself prior to filing the appeal to the court. This means that administrative remedies are to be exhausted before approaching court on appeal or review.

 Statutory and Case Law

  • 152.  Application of Telecommunications Act, 47 USC § 152

 (a) The provisions of this Act shall apply to all interstate and foreign communication by wire or radio and all interstate and foreign transmission of energy by radio, which originates and/or is received within the United States, and to all persons engaged within the United States in such communication or such transmission of energy by radio, and to the licensing and regulating of all radio stations as hereinafter provided; but it shall not apply to persons engaged in wire or radio communication or transmission in [the Philippine Islands or] the Canal Zone, or to wire or radio communication or transmission wholly within [the Philippine Islands or] the Canal Zone. The provisions of this Act shall apply with respect to cable service, to all persons engaged within the United States in providing such service, and to the facilities of cable operators which relate to such service, as provided in title VI [47 USCS §§ 521 et seq.].
 

  • 151.  Purposes of Act; Federal Communications Commission created, 47 USC §151

    For the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, without discrimination on the basis of race, color, religion, national origin, or sex, a rapid, efficient, nationwide, and world-wide wire and radio communication service with adequate facilities at reasonable charges, for the purpose of national defense, for the purpose of promoting safety of life and property through the use of wire and radio communication, and for the purpose of securing a more effective execution of this policy by centralizing authority heretofore granted by law to several agencies and by granting additional authority with respect to interstate and foreign commerce in wire and radio communication, there is hereby created a commission to be known as the “Federal Communications Commission”, which shall be constituted as hereinafter provided, and which shall execute and enforce the provisions of this Act.
  • 402.  Judicial review of Commission’s orders and decisions 47 USCS § 402

(a) Procedure. Any proceeding to enjoin, set aside, annul or suspend any order of the Commission under this Act (except those appealable under subsection (b) of this section) shall be brought as provided by and in the manner prescribed in chapter 158 of title 28, United States Code [28 USCS §§ 2341 et seq.].

(b) Right to appeal. Appeals may be taken from decisions and orders of the Commission to the United States Court of Appeals for the District of Columbia in any of the following cases:

(1) By any applicant for a construction permit or station license, whose application is denied by the Commission.
(2) By any applicant for the renewal or modification of any such instrument of authorization whose application is denied by the Commission.
(3) By any party to an application for authority to transfer, assign, or dispose of any such instrument of authorization, or any rights thereunder, whose application is denied by the Commission.
(4) By any applicant for the permit required by section 325 of this Act [47 USCS § 325] whose application has been denied by the Commission, or by any permittee under said section whose permit has been revoked by the Commission.
(5) By the holder of any construction permit or station license which has been modified or revoked by the Commission.
(6) By any other person who is aggrieved or whose interests are adversely affected by any order of the Commission granting or denying any application described in paragraphs (1), (2), (3), (4), and (9) hereof.
(7) By any person upon whom an order to cease and desist has been served under section 312 of this Act [47 USCS § 312].
(8) By any radio operator whose license has been suspended by the Commission.
(9) By any applicant for authority to provide interLATA services under section 271 of this Act [47 USCS § 271] whose application is denied by the Commission……”
.
 In case of Remand ,….
“(h) Remand. In the event that the court shall render a decision and enter an order reversing the order of the Commission, it shall remand the case to the Commission to carry out the judgment of the court and it shall be the duty of the Commission, in the absence of the proceedings to review such judgment, to forthwith give effect thereto, and unless otherwise ordered by the court, to do so upon the basis of the proceedings already had and the record upon which said appeal was heard and determined…..

(j) Finality of decision; review by Supreme Court. The court’s judgment shall be final, subject, however, to review by the Supreme Court of the United States upon writ of certiorari on petition therefor under section 1254 of title 28 of the United States Code, by the appellant, by the Commission, or by any interested party intervening in the appeal, or by certification by the court pursuant to the provisions of that section.”

28 USCS § 2341 and 2342 (2005)

The following statute defines exhaustively the administrative agencies which have been established for particular purposes and derive their authority by virtue of being administrative agencies: 28 USCS § 2341 (2005)

  • 2341.  DefinitionsAs used in this chapter–

(1) “clerk”  ………………
(2) “petitioner ……………..
(3) “agency” means—
(A) the Commission, when the order sought to be reviewed was entered by the Federal Communications Commission, the Federal Maritime Commission, or the Atomic Energy Commission, as the case may be;……………….
28 USCS § 2342.  Jurisdiction of court of appeals

The Court of Appeals (other than the United States Court of Appeals for the Federal Circuit) has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of—
(1) all final orders of the Federal Communications Commission made reviewable by section 402(a) of title 47;…..

Judicial review of FCC decisions

 Under 47 USCS § 155(c)(7), filing of application for review by Commission is condition precedent to judicial review of decision taken pursuant to delegated authority; consequently, petition seeking review of decision issued by staff of Federal Communications Commission must be dismissed for failure to exhaust administrative remedies where petitioner failed to first ask Commission to review decision of staff. Richman Bros. Records v FCC (1997, App DC) 326 US App DC 330, 124 F3d 1302. 

Judicial review cannot be obtained when Commission review has been sought, but not yet obtained, since act of filing request for Commission review was not, by itself, sufficient to satisfy judicial review prerequisites of 47 USCS § 155. International Telecard Ass’n v FCC (1999, App DC) 334 US App DC 259, 166 F3d 387. 

Role of State Public Commissions

The ILECs and CLECs, known generally as Local Exchange Carriers (“LECs”), are supervised in their interconnection and reciprocal compensation obligations by state public service commissions, such as the PSC. See, e.g., 47 U.S.C. § 252(b)(4), (c), and (e). Not surprisingly, this regime of enforced cooperation has spawned numerous legal disputes, see, e.g., Verizon Maryland, Inc. v. Public Service Comm’n of Maryland, 535 U.S. 635, 152 L. Ed. 2d 871, 122 S. Ct. 1753 (2002); MCI Telecomms. Corp. v. Bell Atlantic-Pennsylvania Serv., 271 F.3d 491 (3d Cir. 2001), cert. denied, 537 U.S. 941, 154 L. Ed. 2d 247, 123 S. Ct. 340 (2002); Bell Atlantic-Delaware, 80 F. Supp. 2d 218

State commissions have a certain amount of control over telecommunication carriers at the state level as can be seen in Global NAPs, Inc. v. Mass. Dep’t of Telcoms. & Energy, in which it was held that:

“The model under the TCA is to divide authority among the FCC and the state commissions in an unusual regime of “cooperative federalism,” see P.R. Tel. Co. v. Telecomms. Regulatory Bd., 189 F.3d 1, 8 (1st Cir. 1999),   with the intended effect of leaving state commissions free, where warranted, to reflect the policy choices made by their states.

Rather than placing the entire scope of regulatory authority in the federal government, the Congress enlisted the aid of state public utility commissions to ensure that local competition was implemented fairly and with due regard to the local conditions and the particular historical circumstances of local regulation under the prior regime.

 Congress gave the federal government an extensive oversight role. Under the TCA, the FCC has authority to preempt state jurisdiction over regulation of intrastate communications in a number of specific situations. For example, if a state commission fails to carry out the duties required of it with respect to its consideration of a particular interconnection agreement, the FCC is given authority to preempt the state commission’s jurisdiction and assume direct responsibility for that agreement. See 47 USC. § 252(e)(5). Direct review of the state commission’s   failure to act is foreclosed; the FCC’s actions in response to an alleged failure to act, and judicial review of those actions, are the “exclusive remedies.” Id. § 252(e)(6). In addition, the FCC may preempt the enforcement of a state or local law if it finds, after notice and an opportunity for comment, that the law acts as a barrier to entry. Id. § 253(e). In addition to these specific grants of authority, the FCC has broad regulatory authority over the TCA. See id. § 201(b) (“The Commission may prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions of this chapter.”); AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 378, 142 L. Ed. 2d 834, 119 S. Ct. 721 (1999) (interpreting § 201 to extend to the local competition provisions of the TCA).”
A party aggrieved by a “determination” of a state commission under § 252 may bring an action in federal district court. See 47 U.S.C. § 252(e)(6).State courts, however, do not have jurisdiction to review decisions of state commissions .”approving or rejecting an agreement” under § 252. See 47 U.S.C. § 252(e)(4).  

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,  &  Chevron U.S.A. Inc. v. NRDC


Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 125 S. Ct. 2688 (U.S. 2005)

Excerpts from the Court’s opinion:

The Commission’s conclusion that broadband cable modem companies are exempt from mandatory common-carrier regulation is a lawful construction of the Communications Act under Chevron and the Administrative Procedure Act. Pp. 8-32.

Congress has delegated to the Commission the authority to “execute and enforce” the Communications Act, § 151, and to “prescribe such rules and regulations as may be necessary in the public interest to carry out the provisions” of the Act, § 201(b); AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 377-378, 142 (Id at 2700).

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984)

Chevron governs this Court’s review of the Commission’s construction. See, e.g., Nat’l Cable & Telecomms. Ass’n v. Gulf Power Co., 534 U.S. 327, 333-339, 151 L. Ed. 2d 794, 122 S. Ct. 782 (2002). Chevron requires a federal court to defer to an agency’s  construction, even if it differs from what the court believes to be the best interpretation, if the particular statute is within the agency’s jurisdiction to administer, the statute is ambiguous on the point at issue, and the agency’s construction is reasonable. 467 U.S. 837, at 843-844, and n. 11, 865-866, 81 L. Ed. 2d 694, 104 S. Ct. 2778.

 Chevron‘s premise is that it is for agencies, not courts, to fill statutory gaps.

  The Commission’s statutory authority to “execute and enforce” the Communications Act, § 151, and to “prescribe such rules and regulations as may be necessary . . . to carry out the [Act’s] provisions,” § 201(b), give the Commission power to promulgate binding legal rules; the Commission issued the order under review in the exercise of that authority; and there is no dispute that the order is within the Commission’s jurisdiction.

Qwest Communs. Int’l, Inc. v. FCC, 240 F.3d 886 (10th Cir. 2001)

In  Qwest Communs. Int’l, Inc. v. FCC, 240 F.3d 886 (10th Cir. 2001), the Court held that:

“Although subsequent to briefing the Commission has withdrawn its argument that Qwest lacks standing to bring its petition, we consider the issue sua sponte in examining our own jurisdiction. Skrzypczak v. Kauger, 92 F.3d 1050, 1052 (10th Cir. 1996)  . To establish standing under Article III of the Constitution, a plaintiff “must demonstrate [among other things] an injury in fact — a harm that is both concrete and actual or imminent, not conjectural or hypothetical.” Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 120 S. Ct. 1858, 1861, 146 L. Ed. 2d 836 (2000) (internal quotations and citation omitted).

“The party invoking federal jurisdiction bears the burden of establishing this element[].” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). Standing must exist throughout the litigation. In re Yellow Cab Co-op Ass’n, 132 F.3d 591, 594 (10th Cir. 1997).

Bonnichsen v. United States, Dep’t of the Army, 969 F. Supp. 628, 632 (D. Or. 1997)
The Court held,  “The question of standing “involves both constitutional limitations on federal-court   jurisdiction and prudential limitations on its exercise.” Warth v. Seldin, 422 U.S. 490, 498, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). The “constitutional limitations” are those that are necessary to satisfy Article III’s requirement of a “case” or “controversy,” without which this court lacks jurisdiction.

 To satisfy the “case” or “controversy” requirement of Article III, which is the “irreducible constitutional minimum” of standing, a plaintiff must, generally speaking, demonstrate that:

(1) he or she has suffered (or is about to suffer) an “injury in fact”: an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical;

(2) there must be a causal connection between the injury and the conduct complained of: the injury has to be fairly traceable to the challenged action   of the defendant, and not the result of the independent action of some third party not before the court; and

(3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 119 L. Ed. 2d 351, 112 S. Ct. 2130 (1992). Plaintiffs, as the party invoking federal jurisdiction, bear the burden of establishing these elements. Id. at 561.

ACLU v. FCC, 774 F.2d 24, 25 (1st Cir. 1985)

The court held that:

Any “party aggrieved” by a final order of the FCC may file a petition for review of that order. 28 U.S.C. § 2344. The courts have consistently interpreted the term “party aggrieved” to require that a petitioner have participated in the agency proceedings. See, e.g., Simmons v. I.C.C., 230 U.S. App. D.C. 236, 716 F.2d 40, 42-43 (D.C. Cir. 1983); Blackstone Valley National Bank v. Board of Governors of the Federal Reserve System, 537 F.2d 1146, 1147 (1st Cir. 1976).

A petition for review of an FCC final order may be filed “in the judicial circuit in which the petitioner resides or has its principal office, or in the United States Court of Appeals for the District of Columbia Circuit.” 28 U.S.C. § 2343.  Courts have uniformly held that for venue purposes the residence of a corporate plaintiff is the place of its incorporation. E.g.,Rosenfeld v. SFC.