United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 2002 Decided January 21, 2003

No. 01-1266

Sprint Corporation, et al.,

Petitioners

v\.

Federal Communications Commission and

United States of America,

Respondents

American Public Communications Council, Inc., et al.,

Intervenors

Consolidated with

Nos. 01-1521, 01-1522, 02-1041, 02-1042

On Petitions for Review of Orders of the

Federal Communications Commission

David P. Murray argued the cause for petitioners. With him on the briefs
were H. Richard Juhnke, John E. Benedict, Randy J. Branitsky, Thomas F.
O\'Neil III, William Single IV, Jodie L. Kelley, Mark C. Rosenblum and
Daniel Meron. Kurt W. Hague, David L. Lawson and Peter D. Keisler
entered appearances.

Joel Marcus, Counsel, Federal Communications Commission, argued the
cause for respondents. With him on the briefs were Robert B. Nicholson
and Robert J. Wiggers, Attorneys, U.S. Department of Justice, John A.
Rogovin, Deputy General Counsel, Federal Communications Commission, and
John E. Ingle, Deputy Associate General Counsel. Lisa E. Boehley,
Counsel, entered an appearance.

Albert H. Kramer argued the cause for intervenors American Public
Communications Council, et al. With him on the brief were Robert F.
Aldrich, Michael K. Kellogg, Aaron M. Panner, Roger K. Toppins, Gary L.
Phillips, James D. Ellis, Michael E. Glover, Edward Shakin, and James G.
Harralson. Edward G. Modell entered an appearance.

Before: Ginsburg, Chief Judge, and Rogers and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Rogers.

Rogers, Circuit Judge: Sprint Corp., AT&T Corp., and Worldcom, Inc.
(collectively, \"Sprint\"), petition for review of a Federal
Communications Commission rule governing the means by which payphone
service providers are compensated for certain calls made from their
payphones. Sprint contends that the rule was promulgated in violation of
the notice and comment requirements of the Administrative Procedure Act
(\"APA\"), 5 U.S.C. § 553(b) (2000), and is also arbitrary and
capricious. Because the Commission failed to provide adequate notice and
opportunity to comment, we grant the petition and remand the case to the
Commission.

I.

Section 276(b)(1)(A) of the Telecommunications Act of 1996 (\"1996
Act\") directs the Federal Communications Commission to \"establish a
per call compensation plan to ensure that all payphone service providers
\[\"PSPs\"\] are fairly compensated for each and every completed
intrastate and interstate call using their payphone\....\" 47 U.S.C. §
276 (2000). Two types of calls may be placed from a payphone. The first
and most common type is the \"coin call,\" in which the caller inserts a
coin directly into the payphone before making the call; the rates for
coin calls are set by State commissions. At issue here is the second
type of call\--\"coinless calls\"\--which a caller places by using a
service such as directory assistance, operator service, an access code,
or a subscriber 800 number.

The Commission explains in its brief that when a caller places a
coinless payphone call, the call is initially received by the local
exchange carrier (\"LEC\") that services the payphone. If the call is
local, the LEC completes the call itself; if it is long distance, the
LEC routes the call to a long-distance carrier, typically an
interexchange carrier (\"IXC\"). The IXC, such as Sprint, AT&T, and
Worldcom, is the first facilities-based carrier to receive the call. If
the recipient of the call is a customer of the IXC, the IXC will simply
transmit the call to the LEC that serves the customer; the IXC is
thereby able, Sprint acknowledges, to \"track\" completion of the call.
If the call recipient is not a customer of the IXC, however, the IXC
transfers the call to a \"reseller\" of the IXC\'s services. Two types
of resellers exist. The first, known as switchless resellers, do not
possess their own switching facilities and must rely on an IXC to
perform the switching and transmission functions that are required to
complete a call. When the IXC transfers the call to a switchless
reseller, the IXC handles the call as if it were transferring it to one
of its own customers, and the IXC is again able to track the call to
completion. By contrast, the second type, switch-based resellers
(\"SBRs\"), possess their own switching capacities; hence, when an IXC
routes a call to an SBR, the SBR assumes control of the call, and,
Sprint asserts in its brief, the IXC can no longer track the call to
completion. As the parties acknowledge, in some instances the SBR
transfers the call to another SBR, which in turn routes the call to yet
another SBR, and so on.

In 1996, the Commission issued a Notice of Proposed Rulemaking
(\"NPRM\") proposing a method for compensating PSPs for coinless calls.
Notice of Proposed Rulemaking, 11 F.C.C.R. 6716 (1996). A summary of
this NPRM was also published in the Federal Register. 61 Fed. Reg.
31,481. After a period of notice and comment, the Commission determined
that \"the primary economic beneficiary\" should bear the burden of both
tracking coinless payphone calls to completion and compensating PSPs for
those calls. Payphone Docket, Report and Order, 11 F.C.C.R. 20,541,
20,584 p 83 (1996) (\"First Payphone Order\"). The Commission therefore
concluded that the IXC, or the \"underlying, facilities-based carrier,\"
should, as the primary economic beneficiary, compensate the PSP \"in
lieu of a non-facilities-based carrier that resells services.\" Id. at
20,586 p 86. The Commission did not define the terms \"facilities-based
carrier\" or \"reseller.\" The Commission determined, in response to
petitions for reconsideration or clarification, that SBRs possess the
switching capabilities necessary to track payphone calls and accordingly
clarified that SBRs are \"facilities-based carriers\" within the meaning
of the initial rule. Payphone Docket, Order on Reconsideration, 11
F.C.C.R. 21,233, 21,277 p 92 (1996) (\"First Reconsideration Order\").

As facilities-based carriers, then, SBRs were obligated under the First
Reconsideration Order to compensate PSPs for all completed coinless
payphone calls they handled. Id. IXCs, in turn, were required to
compensate PSPs only for those calls that the IXCs terminated on their
own behalf or on behalf of a switchless reseller, and not for those
calls the IXCs transferred to an SBR. Id. The Commission\'s Common
Carrier Bureau (\"Bureau\"), in granting, two years later, a waiver to
IXCs that had not complied with the First Payphone Order within the
required one-year period, further clarified that IXCs must provide
requesting PSPs with information about the SBRs to which the IXCs route
their calls so that the PSPs could identify precisely which SBRs owed
them compensation. Payphone Docket, Mem. Opinion and Order, 13 F.C.C.R.
10,893, 10,915-16 p 38 (1998). On review, the court upheld the portions
of the Commission\'s 1996 rules that are pertinent here. Illinois Pub.
Telecomms. Ass\'n v. FCC, 117 F.3d 555, 566-67 (D.C. Cir. 1997).

In 1999, a coalition of the largest PSPs (\"Coalition\") submitted to
the Commission a petition for clarification of the payphone compensation
orders (\"Coalition Petition\"). The Coalition requested that the
Commission \"clarify, on a going-forward basis, which interexchange
carrier is the party responsible for payment of per-call compensation
when a dial-around or subscriber call is made from a payphone.\" The
Coalition explained that \"\[t\]he Commission\'s effort to assign this
obligation\" jointly to IXCs and SBRs \"has led to disagreements among
PSPs and IXCs, and has encouraged some IXCs to shirk their payment
responsibilities. This has in turn contributed to a serious shortfall in
payments of per-call compensation.\" The Coalition suggested that \"the
best way to reduce the shortfall would be to place the obligation for
payment of per-call compensation on the entity identified by the Carrier
Identification Code (\'CIC\') used to route the compensable call from
the Local Exchange Carrier\'s network.\"

In April 1999, the Common Carrier Bureau issued a \"Public Notice\"
seeking \"comment on the issues raised in \[the Coalition Petition\'s\]
request for clarification for payment responsibility of per-call
compensation when a dial-around or subscriber call\[ \] \[is\] made from
a payphone.\" Common Carrier Bureau Seeks Comment on the RBOC/GTE/SNET
Payphone Coalition Petition for Clarification, 14 F.C.C.R. 6476 (1999).
The Bureau\'s Notice summarized the Coalition Petition\'s general
request for clarification and its suggested method of using CICs to
identify the entity responsible for compensating the PSP. Id. The Notice
included filing dates for comments and reply comments, id., but the
Bureau did not publish the Notice in the Federal Register or issue a
notice of proposed rulemaking. Sprint and others filed comments that
focused mainly on the Coalition\'s proposal to rely on CICs, with little
discussion of the general method of requiring both IXCs and SBRs to
compensate PSPs for coinless payphone calls. Sprint also registered a
procedural objection, in a letter to the Bureau, noting that the
Commission could substantively alter the existing compensation rules
only after providing notice and an opportunity for comment.

Two years after the Bureau issued its Notice, however, the Commission
largely jettisoned the approach adopted in the First Reconsideration
Order. In the Second Order on Reconsideration, 16 F.C.C.R. 8098 (2001)
(\"Second Reconsideration Order\"), the Commission stated that it was
\"revis\[ing\]\" and \"modify\[ing\]\" its \"rules to address the
difficulty which PSPs face in obtaining compensation for coinless calls
placed from payphones which involve a switch-based telecommunications
reseller in the call path.\" Id. at 8098 p 1. Declining to adopt the
Coalition\'s proposed method of using CICs to identify the carrier
responsible for compensating the PSP, id. at 8107 p 22, the Commission
instead shifted the burden of tracking all calls to completion and
compensating PSPs to the IXCs alone, while permitting the IXCs to
recover these costs from the SBRs to which they transferred the calls.
Id. at 8098 p 2, 8106 p 18. The Commission explained that the IXCs were
in the best position to track calls and to make reporting a condition of
their contracts for providing services. Id. at 8105 p 16. The Commission
also broadened IXCs\' reporting obligations to require IXCs to inform
each PSP of the volume of calls for each access-code and 800 number that
the IXC received from that PSP\'s payphones. Compare First Payphone
Order, 11 F.C.C.R. at 20,596 p 110, with Second Reconsideration Order,
16 F.C.C.R. at 8106 p 18. Finally, the Commission noted that PSPs could
continue to arrange alternative compensation schemes through private
contracts with IXCs and SBRs. Second Reconsideration Order, 16 F.C.C.R.
at 8106-07 p 19. The Commission amended its regulations to reflect these
changes. See 47 C.F.R. §§ 64.1300, 64.1310 (2001). Denying
reconsideration, the Commission rejected the IXCs\' objections to the
new rule. Third Order on Reconsideration and Order on Clarification, 16
F.C.C.R. 20,922 (2001). Sprint now petitions the court for review.

II\.

Sprint\'s contention that the Commission erred by failing to issue a new
NPRM prior to promulgating a new rule in the Second Order on
Reconsideration is based on the notice requirement of § 553(b) of the
APA, which provides in relevant part: \"General notice of proposed rule
making shall be published in the Federal Register, unless persons
subject thereto are named and either personally served or otherwise have
actual notice thereof in accordance with law.\" 5 U.S.C. § 553(b). The
court has observed that the notice requirement of the APA does not
simply erect arbitrary hoops through which federal agencies must jump
without reason. Rather, the notice requirement \"improves the quality of
agency rulemaking\" by exposing regulations \" \'to diverse public
comment,\' \" ensures \" \'fairness to affected parties,\' \" and
provides a well-developed record that \"enhances the quality of judicial
review.\" Small Refiner Lead Phase-Down Task Force v. United States EPA,
705 F.2d 506, 547 (D.C. Cir. 1983) (citations omitted). In contrast to
an informal adjudication or a mere policy statement, which \"lacks the
firmness of a \[prescribed\] standard,\" an agency\'s imposition of
requirements that \"affect subsequent \[agency\] acts\" and have a
\"future effect\" on a party before the agency triggers the APA notice
requirement. Sugar Cane Growers Coop. v. Veneman, 289 F.3d 89, 95-96
(D.C. Cir. 2002) (internal quotations and citation omitted).

At the same time, agencies possess the authority in some instances to
clarify or set aside existing rules without issuing a new NPRM and
engaging in a new round of notice and comment. For example, in City of
Stoughton v. United States EPA, 858 F.2d 747, 751 (D.C. Cir. 1988), the
court held that the EPA was not required to engage in a new round of
notice and comment where it merely adjusted a score under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, Pub. L. No. 96-510, 94 Stat. 2767, in response to public comments.
The authority to clarify or reconsider a rule may arise directly from a
statute, as in the Natural Gas Act, see Tennessee Gas Pipeline Co. v.
FERC, 871 F.2d 1099, 1108 (D.C. Cir. 1989), or pursuant to agency
rulemaking authority, as in the case of the Commission, whose procedures
authorize it to set aside an existing rule, on its own motion, within
thirty days of promulgating the rule. FCC Practice and Procedure, 47
C.F.R. § 1.108 (2001).

Underlying these general principles is a distinction between rulemaking
and a clarification of an existing rule. Whereas a clarification may be
embodied in an interpretive rule that is exempt from notice and comment
requirements, 5 U.S.C. § 553(b)(3)(A), see Am. Mining Cong. v. Mine
Safety & Health Admin., 995 F.2d 1106, 1109 (D.C. Cir. 1993), new rules
that work substantive changes in prior regulations are subject to the
APA\'s procedures. Thus, in National Family Planning & Reproductive
Health Ass\'n v. Sullivan, the court described as \"a maxim of
administrative law\" the proposition that, \" \'\[i\]f a second rule
repudiates or is irreconcilable with \[a prior legislative rule\], the
second rule must be an amendment of the first; and, of course, an
amendment to a legislative rule must itself be legislative.\' \" 979
F.2d 227, 235 (D.C. Cir. 1992) (quoting Michael Asimow, Nonlegislative
Rulemaking and Regulatory Reform, 1985 Duke L.J. 381, 386); see also Am.
Mining Cong., 995 F.2d at 1109. The Commission proceedings at issue
illustrate the distinction. In the First Reconsideration Order, the
Commission clarified its initial rule by providing a definition of the
phrase \"facilities-based carriers.\" 11 F.C.C.R. at 21,277 p 92 (1996).
Although definitions may vary in a way that would trigger the APA notice
requirements, see Nat\'l Family Planning, 979 F.2d at 235 (citing
Homemakers North Shore, Inc. v. Bowen, 832 F.2d 408, 412 (7th Cir.
1987)), the Commission\'s clarification in the First Reconsideration
Order merely illustrated its original intent. By contrast, when an
agency changes the rules of the game\--such that one source becomes
solely responsible for what had been a dual responsibility and then must
assume additional obligations, as occurred in the Commission\'s Second
Reconsideration Order\--more than a clarification has occurred. To
conclude otherwise would intolerably blur the line between when the APA
notice requirement is triggered and when it is not.

With these principles in mind, we turn to the Commission\'s position
that the APA notice requirement is inapplicable to its determinations in
the Second Reconsideration Order. The Commission concedes that it did
not publish a NPRM\--or even the Bureau\'s Notice\--in the Federal
Register. It also acknowledges that, because the Bureau\'s Notice did
not specifically name Sprint, any \"actual notice\" that the agency
provided to Sprint does not suffice under § 553(b). See Util. Solid
Waste Activities Group v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001).
Instead, the Commission contends that its determinations in the Second
Reconsideration Order did not necessitate a new NPRM and that Sprint in
fact received adequate notice and opportunity to comment. The Commission
offers several alternative theories in support of its position.

First, the Commission maintains that it is permitted sua sponte to
reconsider its rules where a reconsideration order is pending, so long
as the original proposed rule supplied notice. This principle, however,
is inapposite in the context of new rulemakings. The Commission points
to a regulation that authorizes the Commission, \"on its own motion,\"
to \"set aside any action made or taken by it within 30 days from the
date of public notice of such action\....\" Practice and Procedure, 47
C.F.R. § 1.108 (2001). This thirty-day deadline, the Commission
maintains, may be tolled by pending motions for reconsideration, citing
Central Florida Enterprises v. FCC, 598 F.2d 37, 48 n.51 (D.C. Cir.
1978). But the Commission\'s effort to take refuge in its regulation
fails. The court in Central Florida merely stated that \"where \...
several petitions are consolidated for hearing and decision, a petition
for reconsideration of any of the ensuing orders tolls the thirty day
period as to all orders in the case.\" Id. Although Central Florida\'s
holding might assist the Commission were it merely setting aside an
existing rule, in the instant case the Commission, more than four years
after issuing its original rule, changed the payment and reporting
obligations of affected parties. While maintaining that it was merely
setting aside a previous action, the Commission itself stated in the
Second Reconsideration Order that it was \"revis\[ing\]\" and
\"modify\[ing\]\" its rules. 16 F.C.C.R. at 8098 p 1. Moreover, the
Commission changed the text of the regulation appearing in the Code of
Federal Regulations. This stands in contrast to the First
Reconsideration Order, when the Commission simply clarified the
definition of a phrase that it had used in the initial rule. 11 F.C.C.R.
at 21,277 p 92.

The Commission\'s reliance on American Mining Congress v. United States
EPA, 907 F.2d 1179 (D.C. Cir. 1990), is similarly unavailing. In that
case, the court held that the agency had complied with the APA\'s notice
requirements where it reinstated a rule that it had withdrawn eight
years earlier. 907 F.2d at 1182. Because the petitioners had two
opportunities for notice and comment before the agency promulgated the
reinstated rule, the court held that \"\[t\]his was more than enough to
satisfy the requirements of the APA.\" Id. Here, by contrast, the
Commission has not simply reinstated a previously withdrawn rule, much
less the rule it promulgated in the First Payphone Order. The rule
embodied in the Second Reconsideration Order differs from the initial
rule, which provided that the \"underlying, facilities-based carrier,\"
without defining that term, should compensate the PSPs. First Payphone
Order, 11 F.C.C.R. at 20,586 p 86 (1996). When the Commission later
defined the phrase in the First Reconsideration Order, it clarified that
\"facilities-based carriers\" include SBRs. 11 F.C.C.R. at 21,277 p 92
(1996). Thus, the initial rule embodied a dual system of payment
responsibility involving both the IXCs and the SBRs. Because the Second
Reconsideration Order departs from that understanding and effects a
change in the regulation, it is not identical to the initial rule. It
also differs from the initial rule because the Second Reconsideration
Order increases the IXCs\' reporting obligations substantially beyond
those contained in the First Payphone Order. 16 F.C.C.R. at 8106 p 18;
see also Miscellaneous Rules Relating to Common Carriers, 47 C.F.R. §
64.1310(a) (2001). Given the changes to the payment-responsibility
requirements, the rule promulgated in the Second Reconsideration Order
is not a reinstatement of the original rule, and consequently nothing in
American Mining Congress would exempt the Commission\'s determinations
from the APA notice requirement.

Second, the Commission maintains that it was not required to issue a new
NPRM because its determination in the Second Reconsideration Order was a
\"logical outgrowth\" of the Bureau\'s Notice. \"\[A\]n agency may make
changes in its proposed rule on the basis of comments without triggering
a new round of comments, at least where the changes are a \'logical
outgrowth\' of the proposal and previous comments.\" City of Stoughton,
858 F.2d at 751. In order for a final rule to be a \"logical outgrowth\"
of a proposal, however, the agency first must have provided proper
notice of the proposal. \"The necessary predicate \... is that the
agency has alerted interested parties to the possibility of the
agency\'s adopting a rule different than the one proposed.\" Kooritsky
v. Reich, 17 F.3d 1509, 1513 (D.C. Cir. 1994). Whereas in Kooritsky, id.
at 1512, and City of Stoughton, 858 F.2d at 749, the agencies began
their rulemaking processes with NPRMs, here the Commission did not
publish a notice in the Federal Register. Instead, it purported to act
through the Common Carrier Bureau, which lacks the authority under the
Commission\'s regulations to issue notices of proposed rulemaking.
Commission Organization, 47 C.F.R. § 0.291(g) (2001). Sprint, therefore,
was not on notice that the Commission was proposing to \"revise\" its
initial rule, much less that it would shift the locus of payment
responsibility in any manner other than the Coalition Petition\'s CIC
proposal. We leave open the question whether adoption of the CIC
approach also would have necessitated a new NPRM. See Nat\'l Family
Planning, 979 F.2d at 235. Suffice it to say, there can be no \"logical
outgrowth\" of a proposal that the agency has not properly noticed. See
McClouth Steel Prods. Corp. v. Thomas, 838 F.2d 1317, 1323 (D.C. Cir.
1988).

Third, the Commission maintains that the Coalition Petition and the
Bureau\'s Notice placed Sprint on actual notice of the new rule, and
that this actual notice cures any procedural deficiencies in the
Commission\'s promulgation of a new rule. But, as noted, the authority
delegated to the Bureau by the Commission to issue public notices does
not extend to issuance of NPRMs, 47 C.F.R. § 0.291(g), and Sprint could
reasonably assume that the Commission would not undertake, as a result
of the Bureau\'s Notice, consideration of more than the proposal in the
Coalition\'s Petition. Furthermore, the comments submitted in response
to the Bureau\'s Notice demonstrate that the parties did not appreciate
that the Commission was contemplating revision of the dual scheme of
payment responsibility. Nor did anything in the Bureau\'s Notice suggest
that the Commission would impose additional reporting requirements on
IXCs, and the commenters understandably submitted no comments on this
point. See MCI Telecomms. Corp. v. FCC, 57 F.3d 1136, 1142-43 (D.C. Cir.
1995). Necessarily, then, the Bureau\'s Notice did not provide \"actual
notice\" sufficient to remedy the Commission\'s procedural shortcomings.

In a last gasp, the Commission contends that even if the APA notice
requirement applied to the Commission\'s revision of the initial rule in
the Second Reconsideration Order and the Commission failed to follow the
requirement, the APA incorporates a prejudicial error rule, and Sprint
has failed to show prejudice from the Commission\'s procedural
shortcomings. The APA instructs that reviewing courts take \"due account
\... of the rule of prejudicial error.\" 5 U.S.C. § 706. In Sugar Cane
Growers Cooperative v. Veneman, 289 F.3d 89 (D.C. Cir. 2002), the court
noted the standard established in McLouth, 838 F.2d at 1324, and
explained that \"an utter failure to comply with notice and comment
cannot be considered harmless if there is any uncertainty at all as to
the effect of that failure.\" Sugar Cane Growers, 289 F.3d at 96. The
court observed that broadening the harmless error rule would

virtually repeal section 553\'s requirements: if the government could
skip those procedures, engage in informal consultation, and then be
protected from judicial review unless a petitioner could show a new
argument\--not presented informally\--section 553 obviously would be
eviscerated. The government could avoid the necessity of publishing a
notice of a proposed rule and perhaps, most important, would not be
obliged to set forth a statement of the basis and purpose of the rule,
which needs to take account of the major comments\--and often is a major
focus of judicial review.

Id. at 96-97.

The same dangers are present here. First, as noted, the Commission\'s
description of its determination in the Second Reconsideration Order as
a \"revis\[ion\]\" and \"modif\[ication\]\" of its rules, as well as the
Commission\'s amendment of its regulations, indicates that more than a
clarification of the initial rule was involved. This fact alone may have
prejudiced Sprint insofar as it is procedurally more difficult to obtain
reversal of a new rule than to petition for reconsideration of a
clarification. Cf. Stuart-James Co. v. SEC, 857 F.2d 796, 801 (D.C. Cir.
1988). Second, although a showing of actual prejudice is not required
under the prejudicial error rule, Sprint has made a colorable claim that
it would have more thoroughly presented its arguments had it known that
the Commission was contemplating a rulemaking. See Sugar Cane Growers,
289 F.3d at 97. The Second Reconsideration Order assumes, for example,
that the IXCs are in a superior position to track calls because they may
use their market leverage to impose client reporting requirements as a
condition of service. IXCs might have been able to affect this
determination (notwithstanding the Commission\'s view that the
technology exists for IXCs to track calls) by presenting additional
information demonstrating shortcomings and burdens that the Commission
had not adequately considered. Without notice of the Commission\'s
assumption that IXCs alone were in a superior position, however, the
IXCs had no opportunity to present their evidence. Third, the Commission
provided inadequate notice that it was considering a change in reporting
requirements, which under the new rule are more burdensome than in the
initial rule. Under the circumstances, the Commission \"has offered no
persuasive evidence that possible objections to its final rule\[ \] have
been given sufficient consideration.\" Shell Oil v. EPA, 950 F.2d 741,
752 (D.C. Cir. 1991). Thus, the effect of the Commission\'s procedural
errors is uncertain, and the Commission\'s \"utter failure\" to afford
proper notice and comment was not harmless. Sugar Cane Growers, 289 F.3d
at 96.

Although the Commission must have flexibility to adjust a regulatory
scheme as concerns and problems arise in an obviously complex and
developing area, it must conform its conduct to the APA notice
requirement. Because the Commission failed to issue a new NPRM to afford
proper notice and opportunity for comment, we grant the petition and
remand the case to the Commission. In light of the remand, we do not
reach Sprint\'s contention that the rule is arbitrary and capricious.