Appeal and Petition for Review of an Order of the Federal Communications Commission
Before: Edwards, Sentelle, and Rogers, Circuit Judges.
The opinion of the court was delivered by: Edwards, Circuit Judge
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.
This case involves petitioner PanAmSat Corporation's requests to the Federal Communications Commission (''FCC'' or ''Commission'') for partial refunds of satellite regulatory fees it paid for fiscal years 1995, 1997, and 1999. For fiscal years 1995, 1997, 1998, and 1999, the FCC exempted COMSAT Corporation, a competitor of PanAmSat, from satellite regulatory fees. COMSAT's exemption caused the other parties subject to satellite regulatory fees, including PanAmSat, to pay fee amounts that covered COMSAT's regulatory costs. In PanAmSat Corp. v. FCC, 198 F.3d 890, 895 (D.C. Cir. 1999), we found that the Commission's exemption of COMSAT in fiscal year 1998 was premised on an impermissible interpretation of § 9 of the Communications Act, and remanded to the Commission for further proceedings. On remand, in the order under review in this case, the Commission held that in light of this court's decision in PanAmSat, COMSAT should have been assessed the regulatory fee for fiscal year 1998. In the Matter of Assessment and Collection of Regulatory Fees for Fiscal Year 1998, 18 F.C.C.R. 6944, 6944 (2003) ('' Order ''). Accordingly, it assessed fees on COMSAT for fiscal year 1998 and later granted PanAmSat a partial refund of the fees overpaid in 1998 as a result of COMSAT's exemption. At the same time, the Commission declined to apply PanAmSat to fiscal years 1995, 1997, and 1999 to assess fees on COMSAT for those fiscal years.
PanAmSat petitions this court for review of the Commission's decision on remand, arguing that it is entitled to refunds of the portion of fees it paid to cover COMSAT's regulatory costs for 1995, 1997, and 1999. However, PanAm-Sat did not file timely challenges to the Commission's orders assessing fees and exempting COMSAT in 1995, 1997, and 1999, and PanAmSat reached no conclusion on the permissibility of COMSAT's exemption for those years. Therefore, we hold that the FCC violated no law and engaged in no arbitrary or capricious action in denying PanAmSat's refund requests for fiscal years 1995, 1997, and 1999. Accordingly, we deny the petition for review.
Petitioner PanAmSat Corporation and intervenor COMSAT Corporation are both operators of geosynchronous space stations, which are domestic and international satellites that provide communication. Pursuant to its authority under § 9 of the Communications Act, the Commission assesses regulatory fees on satellite operators to recover costs of ''enforcement activities, policy and rulemaking activities, user information services, and international activities.'' 47 U.S.C. § 159(a)(1) (2000). The Commission divides its total satellite regulatory costs among operational space stations and assesses fees on each operator based on this calculation. As a result, the Commission's exemption of any space station operator from these fees increases the fees assessed on other space station operators. During the fiscal years in question, COMSAT operated as the United States signatory to two satellite systems, the International Telecommunications Satellite Organization (''Intelsat'') and the International Maritime Satellite Organization (''Inmarsat''). At the time, Intelsat and Inmarsat were international organizations that owned satellites used by their signatories to provide international communication.
In 1995, 1997, 1998, and 1999, the Commission exempted COMSAT from space station fees for its Intelsat and Inmarsat satellites. Believing that Congress only intended for space station fees to be assessed on space stations directly licensed by the FCC under Title III of the Communications Act, and not on space stations operated by international organizations subject to the International Organization Immunities Act, see In the Matter of Assessment and Collection of Regulatory Fees for FY 1995, 10 F.C.C.R. 13,152, 13,550 (1995), the Commission exempted COMSAT from the satellite regulatory fee in separate orders for the years 1995, 1997, 1998, and 1999, see id.; In the Matter of Assessment and Collection of Regulatory Fees for Fiscal Year 1997, 12 F.C.C.R. 17,161, 17,187 (1997); In the Matter of Assessment and Collection of Regulatory Fees for Fiscal Year 1998, 13 F.C.C.R. 19,820 (1998), 1998 WL 320272 n.108 (F.C.C.); In the Matter of Assessment and Collection of Regulatory Fees for Fiscal Year 1999, 14 F.C.C.R. 9868, 9982-83 (1999). As a result, in each of those fiscal years, PanAmSat paid fee amounts that partially covered regulatory costs attributable to COMSAT.
PanAmSat petitioned this court for review of the order assessing fees for fiscal year 1998. While the appeal was pending, the Commission issued an order assessing fees and exempting COMSAT for fiscal year 1999. PanAmSat did not petition for review of the Commission's orders assessing regulatory fees for 1995, 1997, or 1999.
In PanAmSat's challenge to the 1998 fee assessment order, the court faced a jurisdictional problem, because, ''[a]lthough PanAmSat attacks a 1998 Order, the decisions it complain[ed] of [were] identical to the formulations reached by the Commission in its 1997 Order.'' PanAmSat, 198 F.3d at 892. We noted that ''[t]he statute authorizing judicial review states that petitions for review must be filed within 60 days of the final order.'' Id. (citing 28 U.S.C. § 2344). We concluded that ''PanAmSat's petition [was] timely for the 1998 Order but not for that of 1997,'' id., and thus reached the merits of PanAmSat's attack on the FCC's exemption of COMSAT from regulatory fees in 1998.
On the merits, PanAmSat held that § 9 of the Communications Act ''plainly does not require – and may not permit – Comsat's exemption from space station regulatory fees.'' Id. at 895. We noted that the ''plain terms of § 9'' did not require COMSAT's exemption, and that the Commission had ''relied solely'' on legislative history when it first granted the exemption in 1995. Id. at 895-96. The decision concluded that, even if the House report upon which the Commission relied were taken ''as gospel,'' ''the key passage seems most plausibly to leave Comsat subject to fees for the regulatory activity it generates, and to exempt organizations like Intelsat and Inmarsat themselves.'' Id. at 896. Thus, we found that the legislative history did not support COMSAT's exemption. At the same time, we recognized that ''[p]erhaps there is some ambiguity in the coverage of the 'space station' category in § 9, such that the Commission might 'permissibly' read the statute as allowing a Comsat exemption.'' Id. Therefore, the case was remanded to the Commission for reconsideration of COMSAT's exemption.
The Commission released its order assessing fees for fiscal year 1999 on June 18, 1999. PanAmSat was decided on December 21, 1999. Even though PanAmSat was still pending when the FCC's 1999 fee order was issued, PanAmSat did not file a petition for reconsideration of the 1999 fee order within 30 days of the order as required by 47 U.S.C. § 405(a). Rather, on September 22, 1999, PanAmSat paid its regulatory fees for fiscal year 1999 ''under protest,'' and requested a ''partial refund in the event that the court invalidate[d] elements of the fees as a result of the appeal.'' See Letter from Joseph Godles, Attorney for PanAmSat Corp. to FCC of 9/22/99 at 1, Joint Appendix (''J.A.'') 16. Subsequently, following release of the PanAmSat decision, PanAmSat requested a refund of regulatory fees for fiscal years 1995, 1997, 1998, and 1999. See Letter from Henry Goldberg, Attorney for PanAmSat Corp. to Christopher J. Wright, General Counsel, FCC of 2/15/00 at 4, J.A. 41.
In the order assessing fees for fiscal year 2000, the Commission concluded that COMSAT's exemption was contrary to Congress's intent: ''It would unreasonably frustrate the intent of Congress to suppose that it framed the fee schedule in a way that made a category of costs either unrecoverable or not chargeable against the party most directly related to them, without creating an express exemption.'' In the Matter of Assessment and Collection of Regulatory Fees for Fiscal Year 2000, 15 F.C.C.R. 14,478, 14,488 (2000). Accordingly, for fiscal year 2000, the Commission assessed regulatory fees on COMSAT. This court affirmed the Commission's ...