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Cellco Partnership v.

February 13, 2004

CELLCO PARTNERSHIP, D/B/A VERIZON WIRELESS, PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS
VERIZON TELEPHONE COMPANIES, ET AL., PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS
AT&T CORPORATION AND CINGULAR WIRELESS LLC, INTERVENORS



Before: Randolph, Rogers and Garland, Circuit Judges.

The opinion of the court was delivered by: Rogers, Circuit Judge

Argued December 15, 2003

Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.

On Petitions for Review of an Order of the Federal Communications Commission

Section 11 of the Telecommunications Act of 1996 (''1996 Act'') requires the Federal Communications Commission, upon biennial review, to repeal or modify any regulation that is ''no longer necessary in the public interest as the result of meaningful economic competition between providers of such service.'' 47 U.S.C. § 161 (2002). Cellco Partnership d/b/a Verizon Wireless (''Verizon Wireless'') and Verizon Telephone Companies (''Verizon'') petition for review of the Commission's Biennial Regulatory Reviews for 2000 and 2002, respectively, challenging the Commission's interpretation of § 11. Verizon Wireless also challenges the Commission's determination to retain two rules, 47 C.F.R. § 43.61(a) and § 63.21(i). Because of the chameleon-like nature of the term ''necessary,'' whose meaning depends on its statutory context, we defer to the Commission's reasonable interpretation of § 11 as requiring it to apply the same standard used to adopt regulations under 47 U.S.C. § 201(b) to determinations of whether the regulations remain necessary in the public interest, and as imposing a time limit for Commission action only in § 11(a). Absent direction by Congress for a contrary interpretation, this interpretation provides internal statutory consistency, avoids absurd results, and is consistent with Congress' deregulatory purpose.

We therefore hold, upon rejecting the Commission's challenges to our jurisdiction and Verizon Wireless' standing, that because § 11 neither mandates the completion of the § 11(b) proceedings within the biennial year itself nor requires the Commission to repeal or modify every rule that the Commission does not determine to be absolutely essential, and thus does not impose a special evidentiary burden, the Commission provided an adequate explanation for retention of the two rules challenged by Verizon Wireless. Accordingly, we deny Verizon Wireless' petition challenging the Commission's interpretation of § 11 and its determination to retain the two rules. In light of our disposition of Verizon Wireless' petition, we dismiss Verizon's petition for lack of jurisdiction.

I.

The Communications Act of 1934 vested broad discretion in the Commission to regulate interstate and international wire and radio communications services. See 47 U.S.C. § 151. Among the responsibilities that Congress assigned to the Commission is the duty to ''prescribe such rules and regulations as may be necessary in the public interest.'' Id. § 201(b). Its rulemaking authority thus extends to adopting rules so long as they ''are not an unreasonable means'' to achieve ''permissible public-interest goals.'' FCC v. Nat'l Citizens Comm. for Broad., 436 U.S. 775, 796 (1978).

In 1993, Congress amended the Communications Act to provide for the regulation of mobile communications services. See Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103–66, Title VI, § 6002(c), 107 Stat. 312 (1993). Commercial mobile radio services (''CMRS'') were to be treated as common carriers subject to Title II of the Communications Act, which authorizes the Commission to ensure that carriers comply with applicable statutes. See 47 U.S.C. §§ 201–234. Congress, however, authorized the Commission to forbear from applying the provisions of Title II to such carriers upon determining, among other things, that forbearance ''is consistent with the public interest.'' 47 U.S.C. § 332(c)(1)(A)(iii). In making that determination, the Commission must consider ''whether the proposed [forbearance] regulation TTT will promote competitive market conditions, including the extent to which such regulation TTT will enhance competition among providers of commercial mobile services.'' Id. § 332(c)(1)(C). Congress further directed the Commission to review CMRS competitive market conditions and to analyze these conditions in its annual report. Id.

In 1996, by further amendment to the Communications Act, Congress enacted the Telecommunications Act of 1996 to ensure ''a pro-competitive, de-regulatory national policy framework designed to accelerate rapidly private sector development of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition.'' S. Rep. No. 230, 104th Cong., 2d Sess. 1 (1996). Congress' broad policy was to be implemented through Commission rules, but the 1996 Act provided that it ''shall not be construed to modify, impair or supersede'' the Communications Act ''unless expressly so provided.'' Pub. L. No. 104–104, § 601(c)(1), 110 Stat. 56 (1996), 47 U.S.C. § 152 note. See also AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 378 n.5 (1999). The 1996 Act directed the Commission to expedite rulemaking in a variety of areas, for instance, local competition, universal service, and portability, see 47 U.S.C. §§ 251(d), 254, 251(b), but also vested the Commission with general forbearance authority, id. § 160. As pertinent here, the 1996 Act, Pub. L. No. 104– 104, § 402, amended Title I of the Communications Act by adding a new § 11, which directed the Commission to undertake biennial assessments of its rules to determine whether they should be repealed or modified. 47 U.S.C. § 161. Section 11 provides:

(a) Biennial review of regulations. In every evennumbered year (beginning with 1998), the Commission (1) shall review all regulations issued under this chapter in effect at the time of the review that apply to the operations or activities of any provider of telecommunications service; and (2) shall determine whether any such regulation is no longer necessary in the public interest as the result of meaningful economic competition between providers of such service.

(b) Effect of determination. The Commission shall repeal or modify any regulation it determines to be no longer necessary in the public interest.

Id. (emphasis added).

Consequently, the Commission has undertaken a wholesale review of its regulations. Initially, the Commission's approach was to examine all its rules, not merely those that were specifically implicated in ยง 11, to determine whether repeal or modification might be appropriate. As a result of the 1998 Biennial Regulatory Review, the Commission initiated 32 proceedings to remove unnecessary regulatory ...


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