United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 5, 2008 Decided February 10, 2009 

No. 08-1234 

VERIZON CALIFORNIA, INC., ET AL., 

PETITIONERS

v. 

FEDERAL COMMUNICATIONS COMMISSION AND UNITED 

STATES OF AMERICA, 

RESPONDENTS

QWEST COMMUNICATIONS INTERNATIONAL INC., ET AL., 

INTERVENORS

On Petition for Review of an Order 

of the Federal Communications Commission 

Michael K. Kellogg argued the cause for petitioners. On 

the briefs were Aaron M. Panner, Andrew G. McBride, 

William P. Barr, Michael E. Glover, and Karen Zacharia. 

Bennett L. Ross, Joshua S. Turner, Thomas R. McCarthy, 

Joshua H. Seidermann, and Robert B. McKenna Jr. were on 

the briefs for intervenors United States Telecom Association 

and Independent Telephone & Telecommunications Alliance. 

Craig E. Gilmore, Lawrence C. Keller, and Lewis A. Tollin

entered appearances. 
2

James M. Carr, Counsel, Federal Communications 

Commission, argued the cause for respondents. With him on 

the brief were Thomas O. Barnett, Assistant Attorney General, 

U.S. Department of Justice, Catherine G. O’Sullivan and 

Nancy C. Garrison, Attorneys, Matthew B. Berry, General 

Counsel, Federal Communications Commission, Joseph R. 

Palmore, Deputy General Counsel, and Richard K. Welch, 

Acting Deputy Associate General Counsel. Joel Marcus, 

Counsel, Federal Communications Commission, entered an 

appearance. 

Donald B. Verrilli Jr. argued the cause for intervenors 

Comcast Corporation, et al. With him on the brief were Mark 

D. Schneider, Christopher W. Savage, Matthew A. Brill, J. 

Scott Ballenger, Brian W. Murray, and Lori Alvino McGill. 

Daniel L. Brenner, Neal M. Goldberg, and Michael S. 

Schooler were on the brief for amicus curiae National Cable 

& Telecommunications Association in support of respondents. 

Gene Kimmelman and Chris Murray were on the brief for 

amicus curiae Consumers Union in support of respondents. 

Before: SENTELLE, Chief Judge, and TATEL, Circuit 

Judge, and WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, Senior Circuit Judge: When a telephone 

service provider loses a phone customer, the customer is 

entitled to “port” the existing phone number to the new 

service provider. The latter initiates a Local Service Request 

(“LSR”), which spurs the original provider into the necessary 

technical action. The LSR also, of course, alerts the outgoing 

provider to its imminent loss of a customer, and providers 
3

may naturally be tempted to seize the chance to make a last 

plea to the customer to remain loyal. 

Verizon California, Inc., an incumbent local exchange 

carrier, faces competition from cable companies that provide 

voice services over Internet Protocol. It has in fact used 

information provided by the LSR process to contact defecting 

customers and offer them various incentives to stay with 

Verizon, all before the number port is completed. (Verizon’s 

efforts to win back customers after the completion of LSRs 

are not at issue.) 

Three cable companies—Bright House Networks, LLC, 

Comcast Corporation, and Time Warner Cable Inc.—filed a 

complaint about Verizon’s practice with the Federal 

Communications Commission. They argued that Verizon’s 

retention efforts violated the Telecommunications Act’s 

restrictions on carriers’ use of other carriers’ proprietary 

information for marketing purposes. 47 U.S.C. § 222(b). The 

FCC agreed and ordered Verizon to cease and desist from 

these efforts. Bright House Networks, LLC v. Verizon Cal., 

Inc., 23 FCC Rcd 10704, 10723 ¶ 48 (2008) (“Order”). 

Verizon petitioned for review of the Order, mainly 

arguing that the FCC had misinterpreted § 222(b) by applying 

it where a telecommunications service is provided only by a 

carrier submitting an LSR (here, the cable companies), not the 

one receiving it (Verizon). Finding the FCC’s interpretation 

of § 222(b) reasonable, and rejecting Verizon’s other 

contentions, we deny the petition. 

* * * 

Section 222(b) (“Confidentiality of carrier information”) 

reads, 
4

A telecommunications carrier that receives or obtains 

proprietary information from another carrier for purposes 

of providing any telecommunications service shall use 

such information only for such purpose, and shall not use 

such information for its own marketing efforts. 

47 U.S.C. § 222(b). 

Before proceeding to the main issue, we note our 

agreement with the Commission “that advance notice of a 

carrier change that one carrier is required to submit to another 

is carrier ‘proprietary information’ under section 222(b).” 

Order, 23 FCC Rcd at 10709 ¶ 13 & n.42. Of course the 

receiving carrier already knows its own customer’s name and 

phone number, but the information that a competitor has just 

won the customer over, which is vital to the timing of 

Verizon’s retention marketing, is proprietary information that 

the competitor discloses only because it must do so in order to 

effect the number port, id. ¶ 12. 

The main disagreement between the parties revolves 

around the phrase “for purposes of providing any 

telecommunications service.” 47 U.S.C. § 222(b). Does it 

refer only to information received for purposes of the 

receiving carrier’s provision of a telecommunications service 

(Verizon’s position) or does it also cover situations where 

information is received for purposes of the submitting 

carrier’s provision of such service (the FCC’s position)? At 

least without classifying the receiving carrier’s role in the 

porting process as provision of a telecommunications service 

(a view that presents some difficulties), the distinction is 

critical, as the information provided to Verizon via an LSR is 

to enable the submitting carrier, and not Verizon, to provide a 

telecommunications service. 
5

 Under the familiar Chevron framework, we defer to the 

FCC’s reasonable interpretation so long as it doesn’t 

contradict the Act’s unambiguous text. Chevron U.S.A. Inc. v. 

NRDC, 467 U.S. 837, 842–44 (1984). Of course, as with all 

agency actions subject to the Administrative Procedure Act, 

the interpretation also must not be arbitrary and capricious. 5 

U.S.C. § 706(2)(A). 

We do not believe that the statutory language is 

unambiguously contrary to the FCC’s interpretation. Section 

222(b) does not explicitly state which carrier is to provide the 

telecommunications service. Granted, the first reading that 

comes to mind is that the statute covers only situations where 

the receiving carrier is the one providing such a service. To 

use an example offered by Verizon, in the sentence “Joe 

received information from Mary for purposes of drafting a 

brief,” it is overwhelmingly likely that the speaker expects Joe 

to do the drafting. But one can imagine contexts where Mary 

would be understood as the prospective drafter—where, for 

example, Joe was to use the information to develop a legal 

argument or to organize factual material and provide the 

results to Mary for her brief-writing. The context is key. 

Understandably, therefore, the FCC looked to the context 

of § 222(b), including its own precedent. The FCC had 

earlier tackled the problem of so-called “slamming”—the 

practice of submitting or executing an unauthorized change in 

a subscriber’s telephone service provider. There, similarly, a 

new provider submits information to its predecessor to enable 

the submitting carrier to provide service. The Commission 

held that information so received “may only be used by the 

executing carrier [the losing competitor] to effectuate the 

provision of service by the submitting carrier to its 

customers.” In re Implementation of the Subscriber Carrier 

Selection Changes Provisions of the Telecommunications Act 

of 1996: Policies and Rules Concerning Unauthorized 
6

Changes of Consumers’ Long Distance Carriers, 18 FCC Rcd 

5099, 5109 ¶ 25 (2003) (emphasis added), quoted in Order, 

23 FCC Rcd at 10712 ¶ 21. To be sure, the ruling did not 

offer a linguistic exegesis of § 222(b), but in treating § 222(b) 

as binding the executing carrier even though it is not to be 

providing the service at issue, the ruling at the very least 

constitutes a precedent. Verizon seems not to dispute the 

existence of the precedent, nor its soundness as a matter of 

statutory interpretation. Rather it asserts the anti-slamming 

ruling “cannot be read this way because it addressed local 

carriers’ provision of exchange access service—a wholesale 

telecommunications service that is provided to the carrier 

submitting the information.” Verizon Reply Br. 13 n.8. But 

the point of the ruling, for our purposes, is simply the 

application of § 222(b) where the service in question was only 

the service to be provided by the submitting carrier. 

Verizon’s interpretation, moreover, would lead to an 

anomalous result. Its argument against the cable company 

complainants turns entirely on the point that they will provide 

the new telecommunications service exclusively with their 

own facilities. As Verizon reads it, the statute would protect 

carriers that purchased telecommunications service from 

Verizon on a wholesale basis and then resold it to their own 

customers, and carriers that leased unbundled network 

elements from Verizon for the provision of 

telecommunications service, but not carriers like the 

complainants that simply submitted LSRs to Verizon so that 

they could provide telephone service with their own facilities. 

Yet, the Commission noted, it has read the basic statute, the 

Telecommunications Act of 1996, as having the promotion of 

facilities-based local competition as its fundamental policy, 

Order, 23 FCC Rcd at 10714 ¶ 27, a reading which we have 

readily accepted, U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 

577 (D.C. Cir. 2004). 
7

Verizon argues that the FCC’s interpretation raises 

serious First Amendment difficulties and accordingly should 

enjoy less than full Chevron deference. It is true that there are 

certain oddities in the Commission’s justification of the rule. 

It confined itself to cross-referencing In re Implementation of 

the Subscriber Carrier Selection Changes Provisions of the 

Telecommunications Act of 1996: Policies and Rules 

Concerning Unauthorized Changes of Consumer Long 

Distance Carriers, 14 FCC Rcd 1508, 1573–75 ¶¶ 107–11 

(1998) (the “1998 Anti-Slamming Decision”), where it had 

justified a similar application of § 222(b) largely in terms of 

“eliminating restraints on competition,” id. at ¶ 108. But of 

course the Order itself imposes a restraint on competition; 

and Verizon submitted a study, undiscussed by the 

Commission, setting forth claims that continuation of its 

marketing program would generate $75–79 million in benefits 

for telephone customers over a five-year period, Joint 

Appendix (“J.A.”) 259 ¶ 28. 

But a study of the Order and the 1998 Anti-Slamming 

Decision makes clear that the Commission’s concern is really 

to assure the losing carrier’s neutral role in the execution 

process (here, execution of porting). Order, 23 FCC Rcd at 

10713 ¶ 22. Neutrality, as the FCC explained at oral 

argument, helps avoid the “two-masters problem,” to make 

sure that Verizon’s incentive on receiving an LSR is 

unambiguously to complete it promptly and effectively. Oral 

Arg. Tr. 28–30. For example, despite the parties’ stipulation 

that “Verizon does not have a practice of delaying the porting 

of numbers in order to engage” in retention marketing, J.A. 

272, there is evidence in the record that the combination of 

Verizon’s retention marketing with its LSR process has 

introduced unnecessary errors into its number porting, 

Supplemental Appendix 60–62. Thus the FCC’s basic 

determination was to eliminate the apparent conflict of 

interest, compelling Verizon to focus first on completing the 
8

result of another carrier’s successful marketing before 

engaging in its own. 

This analysis compels our rejection of Verizon’s First 

Amendment argument. The Order limits commercial speech, 

and thus need satisfy only intermediate scrutiny. See Central 

Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 

U.S. 557, 564 (1980). We agree with the FCC that curing the 

two-masters problem is a substantial interest and that the 

prohibition against retention marketing during the short time 

period while an LSR is pending advances that interest directly 

and is “designed carefully” to achieve the stated goal. Order, 

23 FCC Rcd at 10721 ¶ 44 n.109 (citing the 1998 AntiSlamming Decision, 14 FCC Rcd 1508, 1573–75 ¶¶ 107–11 

(1998)). As the Commission noted in the 1998 AntiSlamming Decision, the executing carrier is disabled only 

from using an opportunity fortuitously placed in its hands by a 

technological necessity—the fact that its technical cooperation 

is essential to implementation of the submitting carrier’s 

competitive victory. See 14 FCC Rcd at 1574–75 ¶¶ 109–10. 

We thus do not find a First Amendment violation, nor even 

the sort of serious constitutional difficulty that would counsel 

against extending Chevron deference to the FCC’s 

interpretation of § 222(b). Cf. AFL-CIO v. FEC, 333 F.3d 

168, 175 (D.C. Cir. 2003) (“[W]e do not accord [an agency] 

deference when its regulations create serious constitutional 

difficulties.” (quotation omitted)). 

* * * 

Verizon also contends that at the very least we should 

vacate the Order with respect to two carriers affiliated with 

and serving Comcast and Bright House. These affiliates, the 

argument goes, are not “telecommunications carriers” within 

the meaning of the Act because they do not hold themselves 
9

out as common carriers, “undertak[ing] to carry for all people 

indifferently.” V.I. Tel. Corp. v. FCC, 198 F.3d 921, 926 

(D.C. Cir. 1999) (quoting Nat’l Ass’n of Regulatory Util. 

Comm’rs v. FCC, 525 F.2d 630, 641 (D.C. Cir. 1976), and 

citing the Act’s definition of the term “telecommunications 

service” as “offering of telecommunications for a fee directly 

to the public, or to such classes of users as to be effectively 

available directly to the public, regardless of the facilities 

used,” 47 U.S.C. § 153(46)). (Verizon does not dispute that 

Sprint Communications Company L.P., the carrier serving 

Time Warner, is in fact a common carrier.) Though the issue 

is closer, we do not find the Commission’s classification 

unlawful. 

The FCC found that three pieces of evidence, taken 

together, amounted to a prima facie case that the affiliates had 

held themselves out as common carriers. First, they selfcertified that they do and will continue to operate as common 

carriers, serving all similarly situated customers equally. 

Order, 23 FCC Rcd at 10718 ¶ 39. Second, the carriers 

entered into publicly available interconnection agreements 

with Verizon, something that Verizon was obligated to do 

only if the other entities were in fact telecommunications 

carriers. Id. at 10718–19 ¶¶ 39–40 & n.99. Verizon’s 

behavior is telling. Interconnection obligations curtail 

potential anticompetitive advantages that network effects 

might afford a local exchange carrier, see Jonathan E. 

Nuechterlein & Philip J. Weiser, Digital Crossroads 80 

(2005), advantages Verizon would presumably be loath to 

give up. Finally, each carrier obtained a state certificate of 

public convenience and necessity, thereby giving public 

notice of its intent to act as a common carrier. Order, 23 FCC 

Rcd at 10718 ¶ 39. While none of the three facts by itself 

seems compelling, in the aggregate they appear enough to 

render the Commission’s conclusion reasonable. 
10

Like the Commission, we are not troubled by the fact that 

Bright House and Comcast-affiliated carriers are currently 

serving only their affiliates. As the FCC explained, “[i]f a 

voice services provider similarly situated to Comcast and 

Bright House were looking for a provider of these services, 

the Comcast and Bright House Competitive Carriers would be 

obvious choices.” Id. at 10719 ¶ 40. Verizon does not 

present any evidence to suggest that the disputed affiliates 

would turn away such a customer. 

In our court, Verizon makes much of the fact that the 

Commission, having concluded that the two carriers were 

telecommunications carriers for purposes of § 222(b), left 

open a possibility that they might not be telecommunications 

carriers for purposes of other provisions of the Act. See id. 

¶ 41. That, says Verizon, is the very definition of arbitrary 

and capricious decisionmaking. But the Commission simply 

refrained from reaching any decision as to the classification of 

the affiliates in other statutory contexts. It said, “We leave 

those determinations for another day.” Id. Although a phrase 

in a statute is typically assumed to have the same meaning 

throughout, “it is not impermissible under Chevron for an 

agency to interpret an imprecise term differently in two 

separate sections of a statute which have different purposes.” 

Abbott Labs. v. Young, 920 F.2d 984, 987 (D.C. Cir. 1990), 

quoted in Order, 23 FCC Rcd at 10719–20 ¶ 41 n.100. 

“Identical words may have different meanings where [among 

other things] the conditions are different.” Weaver v. U.S. 

Info. Agency, 87 F.3d 1429, 1437 (D.C. Cir. 1996) (quoting 

Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 

427, 433 (1932)). Because of that possibility—different 

contexts dictating different interpretations—courts addressing 

the meaning of a term in one context commonly refrain from 

any declaration as to its meaning elsewhere in the same 

statute. We cannot see that the Commission’s non-resolution 
11

of these other issues rendered its reasoning any more 

questionable than would a court’s similar exercise of caution. 

* * * 

Verizon’s petition for review is accordingly 

Denied.