United States Court of Appeals  
 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
 
Argued October 7, 2008                   Decided October 31, 2008 
No. 07-1381 
CORE COMMUNICATIONS, INC., 
PETITIONER 
 
v. 
  
FEDERAL COMMUNICATIONS COMMISSION AND UNITED 
STATES OF AMERICA, 
RESPONDENTS 
 
VERIZON, ET AL., 
INTERVENORS 
 
On Petition for Review of an Order 
of the Federal Communications Commission 
 
Michael B. Hazzard argued the cause for petitioner.  With 
him on the briefs was Stephanie A. Joyce. 
Nandan M. Joshi, Counsel, Federal Communications 
Commission, argued the cause for respondents.  With him on 
the brief were Thomas O. Barnett, Assistant Attorney General, 
Robert B. Nicholson and Robert J. Wiggers, Attorneys, 
Matthew B. Berry, General Counsel, Federal Communications 
Commission, Joseph R. Palmore, Deputy General Counsel, 
 2
Richard K. Welch, Acting Deputy Associate General Counsel, 
and Laurence N. Bourne, Counsel. 
Bruce A. Olcott and Herbert E. Marks were on the brief 
for intervenor State of Hawaii. 
Gregory J. Vogt, Richard A. Askoff, Scott H. Angstreich, 
Derek T. Ho, Michael E. Glover, Karen Zacharia, Daniel 
Mitchell, Karlen J. Reed, Thomas J. Moorman, Joshua 
Seidemann, Gary L. Phillips, and Gerald J. Duffy were on the 
joint brief for intervenors in support of respondents.  Judith L. 
Harris and Robert H. Jackson entered appearances. 
Before: ROGERS and TATEL, Circuit Judges, and 
WILLIAMS, Senior Circuit Judge. 
Opinion for the Court filed by Senior Circuit Judge 
WILLIAMS.  
WILLIAMS, Senior Circuit Judge:  Core Communications, 
a competitive local exchange carrier (LEC), petitioned the 
Federal Communications Commission for forbearance 
under  10(c) of the Telecommunications Act of 1996, 47 
U.S.C.  160(c).  Specifically it asked the Commission to 
forbear from rate regulation preserved by  251(g), from 
rate averaging and rate integration required by  254(g), 
and, in each case, from related implementing rules.  In re 
Petition of Core Communications, Inc. for Forbearance from 
Sections 251(g) and 254(g) of the Communications Act and 
Implementing Rules, 22 FCC Rcd 14,118 at 14,118 (2007) 
(Order).  The FCC denied the petition in full.  Id.  Core now 
seeks review of the Order.   
We have no occasion to get into the merits; Core has not 
shown a basis for Article III standing.  Specifically Core has 
failed to make clear how the requirements it mentions under 
those statutory provisions, or their related implementing 
 3
rules, cause Core any harm.  Accordingly, we dismiss Cores 
petition. 
*  *  * 
Because the parties in agency cases on direct review will 
have had no prior occasion to dispute Article III standing, we 
have insistedto avoid having either to decide standing on an 
incomplete record or to order additional submissionsthat the 
petitioner should, except where standing is self-evident, 
establish its standing by the submission of its arguments and 
any affidavits or other evidence appurtenant thereto at the first 
appropriate point in the review proceedings.  Sierra Club v. 
EPA, 292 F.3d 895, 900 (D.C. Cir. 2002) (emphasis added).  
In the absence of a prior motion to dismiss for want of 
standing, the first appropriate point is the petitioners 
opening briefand not . . . [the] reply to the brief of the 
respondent agency.  Id.  As we explained, experience 
teaches that full development of the arguments for and against 
standing requires the same tried and true adversarial 
procedure we use for the presentation of arguments on the 
merits.  Id. 
Our circuits rules restate the requirement: 
In cases involving direct review in this court of 
administrative actions, the brief of the appellant or 
petitioner must set forth the basis for the claim of 
standing.  . . . When the appellants or petitioners 
standing is not apparent from the administrative record, 
the brief must include arguments and evidence 
establishing the claim of standing. 
Circuit Rule 28(a)(7) (citing Sierra Club, 292 F.3d at 900
01).  Whats more, in an order setting forth the briefing 
schedule, we specifically reminded Core of its obligation to 
 4
comply with Sierra Club and Circuit Rule 28(a)(7).  Core 
Communications, Inc. v. FCC, No. 07-1381 (D.C. Cir. Feb. 
28, 2008). 
Core did allude to the standing problem in its opening 
brief, but it offered only a pair of conclusory assertionsthat 
Core is subject to (1) disparate intercarrier competition 
[compensation?] regimes preserved by 251(g) and (2) 
ongoing application of section 254(g)s rate averaging and 
integration rules, which preclude Core from utilizing 
differentiated pricing for long distance services and further 
chills Cores entry into rural market areas where incumbents 
receive implicit subsidies through this provision.  Core Br. 
18. 
Core failed to explain how it was being injured by the 
application of  251(g) and 254(g).  It did not reveal what 
services it offered or planned to offer that are or would be 
affected by these statutory provisions.  Nor, to the extent that 
the services might be in markets that Core might enter, did 
Core say anything to indicate the seriousness of its plans, 
which might range from a gleam in managements eye to a 
well-developed business plan.  As a result, the FCC in its 
response brief was left to flail at the unknown in an attempt 
to prove the negative.  Sierra Club, 292 F.3d at 901.   
Conceivably Cores reply brief (or even the FCCs 
response, or the combination), might have shown that in fact 
standing was self-evident, id. at 900, or apparent from the 
administrative record, Circuit Rule 28(a)(7).  They did not; 
but they did disclose an invalid theory that seems to lie at the 
heart of Cores idea of its injury.   
The FCC observed in its brief that to the extent 
information can be gleaned from other litigation before this 
Court and public sources . . . Core is a competitive LEC 
 5
engaged in delivering large quantities of incumbent LEC-
originated Internet-bound dial-up traffic to Internet service 
providers.  FCC Br. 21.  Core responded in its reply brief and 
at oral argument that the Core traffic that the FCC described 
would indeed benefit from the forbearance sought in its 
petition.   
Heres the attempted logical chain:  The Commission, 
finding in 2001 that the then-existing reciprocal 
compensation obligations of section 251(b)(5) gave 
competitive LECs such as Core opportunities for regulatory 
arbitrage, issued an order removing ISP-bound traffic from 
those obligations.  In re Implementation of the Local 
Competition Provisions in the Telecommunications Act of 
1996: Intercarrier Compensation for ISP-Bound Traffic, 16 
FCC Rcd 9151, 915354,  23 (2001) (ISP Remand 
Order).   In place of the  251(b)(5) regime, the ISP Remand 
Order imposed both a bill-and-keep system, under which 
each carrier recovers its costs from its own end-users, and a 
set of interim cost-recovery rules to aid in the transition to that 
regime.  See WorldCom, Inc. v. FCC, 288 F.3d 429, 431 (D.C. 
Cir. 2002).  In adopting the order, the Commission relied 
solely on  251(g).  Id. at 430. 
Had matters stopped there, Cores standing would be 
clear.  Forbearance from enforcement of rate regulation under 
 251(g) and related implementing rules would remove the 
force of the ISP Remand Order, which had been adopted 
under  251(g) precisely to thwart the regulatory arbitrage 
employed by firms like Core.   
But matters did not stop there.  An array of firms, 
including Core, challenged the ISP Remand Order in this 
court, which held unequivocally that  251(g) did not provide 
a legal basis for the order.  Id. at 433-34.  We nonetheless did 
not vacate the ISP Remand Order.  Not only did many of the 
 6
orders challengers themselves favor a bill-and-keep regime, 
but there was a non-trivial likelihood that the Commission 
ha[d] authority to elect such a system (perhaps under 
 251(b)(5) and 252(d)(B)(i)).  Id. at 434.  Accordingly, we 
simply remanded the matter to the Commission; the ISP 
Remand Order thus entered a kind of regulatory limbo, from 
which it has yet to emerge.  (We note, however, that we 
recently directed the Commission to explain by November 5, 
2008 the legal authority for the [ISP Remand Order].  In re 
Core Communications, Inc., 531 F.3d 849, 862 (D.C. Cir. 
2008).) 
But the passage of time, of course, has not miraculously 
pulled the ISP Remand Order back under  251(g).  
Accordingly, removal of rate regulation under  251(g) and 
related implementing rules would have no effect on Core.   
There remains the possible link between Cores business 
or future business and rate averaging and integration under 
 254(g).  On this issue Core has pointed us to its website, 
www.coretel.net, which it says provides links to its tariffed 
local exchange, exchange access, and long distance (i.e., 
IXC) offerings.  Reply Br. 3.  While the webpage does 
indeed link to an interstate access tariff, there is no indication 
that Core provides any service thereunder.  At no point
much less in the opening brief, as required for any element of 
standing that is not self-evidentdoes Core show how its 
position, with respect to some specific service, would be 
improved by grant of its petition for forbearance from 
regulation under  254(g).   
*  *  * 
Cores petition for review is 
Dismissed.