United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3519

___________ The People of the State of California; * The Public Utilities Commission of * the State of California, *
* Petitioners, *
* Bell Atlantic Corporation; Bellsouth * Corporation; Pacific Telesis Group; * SBC Communications, Inc.; Maryland * Public Service Commission; US West, * Inc.; US Telephone Association; * On Petitions for Review of Arkansas Public Service Commission; * an Order of the Federal ALLTEL Telephone Services * Communications Commission. Corporation; Ameritech Corporation; * Oregon Public Utility Commission; * North State Telephone Company; * Western Alliance; Independent * Telephone and Telecommunications * Alliance; Roseville Telephone * Company; Concord Telephone * Company; Rock Hill Telephone * Company; Public Utilities * Commission of the State of Hawaii; * American Public Communications * Council, Inc.; ICG Telecom Group, * Inc.; Minnesota Public Utilities * Commission; Southern New England * Telephone Company; The Ad Hoc * Coalition of Telecommunications * Manufacturing Companies; Pacific *-2-

Telecom, Inc.; Minnesota Independent * Coalition; Kentucky Public Service * Commission; Kansas Corporation * Commission; Public Service * Commission of the State of Wyoming; * Rhode Island Public Utilities * Commission; Public Service * Commission of Wisconsin; * State of Texas; Alabama Public * Service Commission; Citizens * Telephone Company of Kecksburg; * New Mexico State Corporation * Commission; Public Service * Commission of the State of Montana; * GTE Service Corporation; Utah * Department of Commerce, Division of * Public Utilities; Public Service * Commission of Utah; Public Service * Commission of the State of South * Carolina; Tennessee Regulatory * Authority; Aging Forum, Inc., doing * business as National Silver Haired * Congress; U.S. Coalition on Aging; * College for Living; Council of Silver * Haired Legislatures; Missouri * Alliance of Area Agencies on Aging; * Missouri Association for the Deaf; * Missouri Council of the Blind; * Presidents' Club for * Telecommunications Justice; * Paraquad, Rural Advocates for * Independent Living; Services for * Independent Living; Public Utilities * Commission of the State of Colorado; * Department of Public Utilities of the * Commonwealth of Massachusetts; * Oklahoma Corporation Commission; *-3-

Public Service Commission of the * State of Connecticut, Department of * Public Utility Control; New York * Telephone Company; New England * Telephone and Telegraph Company, *
* Intervenors on Appeal, *
*
v. *
* Federal Communications * Commission; United States of * America, *
* Respondents, *
* AT&T Corp.; Competitive Tele- * communications Association; MFS * Communications Company, Inc.; * Airtouch Communications, Inc.; * Nextlink Communications, L.L.C.; * Sprint Spectrum, L.P.; National Cable * Television Association, Inc.; MCI * Telecommunications Corporation; * Sprint Corp.; Cox Communications, * Inc.; Vanguard Cellular Systems, Inc.; * Western Wireless Corporation; * American Communications Services, * Inc.; KMC Telecom, Inc.; The * Competition Policy Institute; * Association for Local * Telecommunications Services; * Cellular Telecommunications * Industry Association; GST Telecom, * Inc.; ACC Corp.; General * Communication, Inc.; Telecom- * munications Resellers Association; *-4-

Consumer Federation of America; Ad * Hoc Telecommunications Users * Committee; Information Technology * Industry Council; America's Carriers * Telecommunication Association; * Jones Intercable, Inc.; * Telecommunications, Inc.; Teleport * Communications Group, Inc.; Rural * Telecommunications Group; Allied * Associated Partners; Geld Information * Systems; Pronet, Inc.; Winstar * Communications, Inc.; U.S. One * Communications Services; * Comcast Corporation; Frontier * Corporation; Anaheim, California * Public Utilities Department; City of * Long Beach, California; City of * Manassas, Virginia; Cable & * Wireless, Inc.; National Association of * State Utility Consumer Advocates; * Time Warner Communications * Holdings, Inc.; Personal * Communications Industry * Association; Excel * Telecommunications, Inc.; Worldcom, * Inc., Paging Network, Inc.; Nextwave * Telecom, Inc.; Small Cable Business * Association; Metrocall, Inc.; Texas * Office of Public Utility Counsel, *
* Intervenors on Appeal, *

_______________ *
* Consumers' Utility Counsel Division, * Georgia Governor's Office of * Consumer Affairs; Honorable John D. * Dingell; Honorable W.J. (Billy) *-5-

Tauzin; Honorable Rick Boucher; * Honorable Dennis Hastert, *
* Amici on Behalf of Petitioner, *
* Honorable Thomas J. Bliley, Jr.; * Honorable Ernest F. Hollings; * Honorable Ted Stevens; Honorable * Daniel K. Inouye; Honorable Trent * Lott; Honorable Edward J. Markey, *
* Amici on Behalf of Respondent. *
*

___________ *
* No. 96-4080 *

___________ *
* Bell Atlantic-Delaware, Inc.; Bell * Atlantic-Maryland, Inc.; Bell * Atlantic-New Jersey, Inc.; Bell * Atlantic-Pennsylvania, Inc.; Bell * Atlantic-Virginia, Inc.; Bell Atlantic- * Washington, D.C., Inc.; Bell Atlantic- * West Virginia, Inc., *
* Petitioners, *
* Maryland Public Service Commission; * SBC Communications, Inc.; New York * Telephone Company; New England * Telephone and Telegraph Company; US * Telephone Association; GTE Service * Corporation; US West, Inc.; Bellsouth * Corporation; Bellsouth * Telecommunications, Inc.; Ameritech * Corporation, *-6-

Intervenors on Appeal, *
*
v. *
* Federal Communications Commission; * United States of America, *
* Respondents, *
* Sprint Corp.; Competitive * Telecommunications Association; * Telecommunications Resellers * Association; AT&T Corp.; National * Cable Television Association, Inc.; GST * Telecom, Inc.; MFS Communications * Company, Inc.; KMC Telecom, Inc.; * ACC Corp.; Winstar Communications, * Inc.; MCI Telecommunications * Corporation; America's Carriers * Telecommunication Association; Jones * Communications, Inc.; Airtouch * Communications, Inc.; Cox * Communications, Inc., *
* Intervenors on Appeal. *
*

___________ *
* No. 96-4082 *

___________ *
* Pacific Telesis Group, *
* Petitioner, *
* Maryland Public Service Commission; * SBC Communications, Inc.; New York *-7-

Telephone Company; New England * Telephone and Telegraph Company; US * Telephone Association; GTE Service * Corporation; US West, Inc.; Bellsouth * Corporation; Bellsouth * Telecommunications, Inc.; Ameritech * Corporation, *
* Intervenors on Appeal, *
*
v. *
* Federal Communications Commission; * United States of America, *
* Respondents, *
* Sprint Corp.; Competitive * Telecommunications Association; * Telecommunications Resellers * Association; AT&T Corp.; National * Cable Television Association, Inc.; GST * Telecom, Inc.; MFS Communications * Company, Inc.; KMC Telecom, Inc.; * ACC Corp.; Winstar Communications, * Inc.; MCI Telecommunications * Corporation; America's Carriers * Telecommunication Association; Jones * Communications, Inc.; Airtouch * Communications, Inc.; Cox * Communications, Inc., *
* Intervenors on Appeal. *

___________ *
* No. 96-4083 *

___________ *-8-

SBC Communications, Inc., *
* Petitioner, *
* Maryland Public Service Commission; * New York Telephone Company; New * England Telephone and Telegraph * Company; US Telephone Association; * GTE Service Corporation; US West, Inc.; * Bellsouth Corporation; Bellsouth * Telecommunications, Inc.; Ameritech * Corporation, *
* Intervenors on Appeal, *
*
v. *
* Federal Communications Commission; * United States of America, *
* Respondents, *
* Sprint Corp.; Competitive * Telecommunications Association; * Telecommunications Resellers * Association; AT&T Corp.; National * Cable Television Association, Inc.; GST * Telecom, Inc.; MFS Communications * Company, Inc.; KMC Telecom, Inc.; * ACC Corp.; Winstar Communications, * Inc.; MCI Telecommunications * Corporation; America's Carriers * Telecommunication Association; Jones * Communications, Inc.; Airtouch * Communications, Inc.; Cox * Communications, Inc., * * Intervenors on Appeal. *Telecommunications Ac t of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified 1 as amended in scattered sections of Title 47, United States Code).
-9- _____________ Submitted: April 16, 1997 Filed: August 22, 1997

_____________ Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

_____________
HANSEN, Circuit Judge.

Before us are the petitions of the California Public Utilities Commission an d various providers of local telec ommunications services seeking review of certain rules issued by the Federal Communications Commi ssion (FCC or Commission) pursuant to the Telecommunications Ac t of 1996. The petitioners and the intervenors supporting 1 them (collectively "petitioners ") argue that the FCC exceeded its jurisdiction in part in issuing dialing par

ity rules that encompass some purely intrastate telecommunications services, and they assert that one of the Commission's rules on numberin g administration violates the terms of the Act. Consistent w ith our decision in the related
case, Iowa Utils. Bd. v . FCC , No. 96-3321 and consolidated cases, 1997 WL 403401 (8 thCir. July 18, 1997), we vacate the FCC's dialing parity rules in part, concludin g that the FCC exceeded the scope of its jurisdiction. We find that the petitioners ' challenge to the FCC's number ing administration rule, however, is not ripe for review.

I.Allreferences in this opinion to sections and subsections of th e 2 Telecommunications Act of 1 996 in West's United States Code Annotated (U.S.C.A.) are to the 1997 supplement. First Report and Order, Implementat ion of the Local Competition Provisions in 3 the Telecommunications Act of 1996, CC Docket No. 96-98 (Aug. 8, 1996). Second Report and Order, Implementation of the Local Competition Provisions 4 of the Telecommunications Act of 1996, CC Docket No. 96-98 (Aug. 8, 1996 ) [hereinafter Second Report and Order].
-10- One of Congress's goals in passing the Telecommunications Act of 1996 was to open the local telephone markets to competition. See Telecommunications Act o f 199 6, Pub. L. No. 104-104, purpose statement, 110 Stat. 56 (1996). To accomplis h this objective, the Act imposes several duties on the current providers of loca l telecommunications service (known as "incumbent local exchange carriers" o r "i ncumbent

LECs") including the duties to provide competing carriers with interconnection and unbundl ed access to the incumbents LECs' networks and to allow competing c arriers to resell any telecommunications service that the incumbent LECs provide to their subscribers on a retail basis. 47 U.S.C.A. § 251(c)(2)-(4) (West Supp. 199 7). The FCC issued numerous rules in its First Report and Order purporting t o

2 3 implement these as well as other pro visions of the Act. In our earlier decision in Iowa Utils. Bd. , we reviewed many of the Commission's regulations contained in its Firs t Report and Order and held, in part, that the FCC exceeded its autho rity in promulgating rules go verning the prices that incumbent LECs may charge competing carriers fo r interconnection, unbundled access, and resale of services. See Iowa Utils. Bd. 1997 WL 403401, at *9.

In the present case, the petitioners challenge several portions of th e Commissi on's Second Report and Order, which contains additional FCC comment s 4 and regulations regarding provisions of the Te lecommunications Act of 1996 that were not addressed in the First Report and Order. In par ticular, the petitioners challenge the-11-

FCC's rules implementing the Act's requirement that all local exchange carriers provide di aling parity to competing providers of local and long-distance service. See 4 7 U.S.C.A. § 251(b)(3) (statutory dialing parity requirement); 47 C.F.R. §§ 51.205

- 51. 215 (1996) (FCC dialing parity rules). Additionally, the petitioners challenge th e FCC's rul e, 47 C.F.R. § 52.17, implementing the Act's mandate that the costs o f creating te lecommunications numbering administration arrangements be shared by all telecommu nications carriers on a competitively neutral basis. See 47 U.S.C.A

. § 251(e)(2) (statutory numbering administration requirement).

II.

We have juri sdiction to review final orders of the FCC pursuant to 28 U.S.C

. § 2342(1) (1994) and 47 U.S.C. § 402(a) (1994). Courts of appeals may set asid e agency rules that

(1) conflict with the plain meaning of a statute, (2) are unreasonable interp retations of ambiguous statutes, or (3) are the product of arbitrary or capricious action by the agency. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 842-45 (1984).

A. Dialing Parity Rules The petitioners argue that the FCC exceeded its jurisdiction in promulgating its dialing pa rity rules, 47 C.F.R. §§ 51.205-51.215. Dialing parity is a technologica l capabi lity that enables a telephone customer to route a call over the network of th e customer's preselected carrier without having to dial an access code of extra digits. See 47 U.S.C.A. § 153 (15). The petitioners claim that the FCC did not have authority to issue thes e dialing parity rules to the extent that the rules involve intraLAT A telecommu nications. The petitioners rely heavily on section 2(b) of th e Communications Act of 1934, 47 U.S.C. § 152(b) (1994), to support the ir jurisdictional-12-

atta ck on the FCC's dialing parity rules. Section 2(b) provides that "nothing in thi s chapter shall be construed to apply or to give the [FCC] jurisdiction with respect to .

. . charges, classifications, practices, services, facilities, or regulations for or i n connection with intrastate communications service. I d. The petitioners assert that even though the Commission's dialing parity rules are not phrased explicitly in terms o f "intrastate" or "interstate," but rather use the terms "intraLATA," "interLATA," "local," and "toll" to describe the telecommunications they regulate, 47 C.F.R. §§ 51.205

- 51.215, the intraLATA aspects of the rules overwhelmingly pertain to intrastat e communications servic e and are thus beyond the scope of the FCC's authority. Given the importance of th e terminology in this case, we find it necessary initially to explain our understanding of the "LATA" concept and the difference between "local" and "toll" calls.

The acronym "LATA" stands for "local acc ess and transport area," 47 U.S.C.A. § 1 53(25), and was initially adopted by the district court administering the 198 2 consent decree that broke up AT&T. See United States v. Western Elec. Co. , 569 F. Supp. 990, 993-94 (D.D.C. 1983). The consent decree divided the former Be ll territory into geographic units known as "LATAs." Id. The 1982 consent decree limited LECs' transpor tationof telecommunications to traffic between points within a LATA, i.e. , "intraLATA" traffic, while traffic bet ween telephones located in two different LATAs, i.e. "inte rLATA" traffic, was allotted to long-distance carriers such as AT&T, MCI , and S print. The boundaries of LATAs generally center around cities or othe r identifi able communities of interest; in some instances, one LATA encompasses a n entire state. The United States is currently divided into 192 LATAs, and for the most part, LATAs do not cross state lines. ( See Joint Br. of Intervenors in Support of the FCC at 9.) We are told that approximately 98% of all intraLATA calls are intrastate in nature. (Bell Atlantic Br. at 14.)

Intra LATAcalls can be either "local" or "toll" calls, but interLATA calls ar e exclusively "toll" calls. Calls t hat remain within a caller's immediate local calling area-13-

(a smaller geographic area within a LATA) are int raLATA local calls and are currently made without incurring any additional charge beyond the flat monthly rate t hat one pays for local phone service. Calls that are co mpleted outside of a caller's local calling area

are "toll" calls and a separate charge or "toll" is incurred for making these calls. See 47 U.S.C.A. § 153(48). A single LATA can and frequently does encompass more than one immediate local calling area. Thus "intraLATA" is not synonymous with "local." A cal l that is completed outside of the caller's immediate local calling area but within the same LATA is an intraLATA toll call, while a call that i s completed outside of both the caller's immediate local calling area an d his or her LATA is an interLATA toll call.

The FCC argues that because the rules refer to "LATAs" and because "LATAs" do not necessarily correspond to state boundaries, section 2(b), which remove s intrastate communication s ervices from the FCC's reach, is not relevant to the issue of the Co mmission's authority over dialing parity. Contrary to the FCC's assertion , ho wever, the different nomenclature used in the FCC's dialing parity rules neithe r renders section 2(b) irrelevant nor weakens its effect with respect to this jurisdictional i s sue. The fact remains that approximately 98% of all intraLATA calls (local or toll)

are in trastate in nature. The FCC itself has acknowledged that the vast majority o f intraLATA calls are intrastate and not within its jurisdiction. See Notice of Proposed Rulemaking, In the

Matter of Administration of the North American Numbering Plan , 9 FCC Rcd 2068, 2077 n.93 (1994). More importantly, we believe that section 2(b) preserves intrastate communications for state regulat ion regardless of what other labels may be applied to these commu nications. Although section 2(b) does not apply to the portion of intraLATA calls that are interstate in nature, it does apply to the portion of intraL ATAcalls that are intrastate in nature. Consequently, section 2(b) remains a n obstacle that the FCC must overcome in order to save its intraLATA dialin g parity rules from the petitioners' jurisdictional attack. In Lo uisiana Pub. Serv. Comm'n v. FCC , 476 U.S. 355, 370, 377 (1986), th e Supreme Court

explained that section 2(b) "fences off" intrastate telecommunications-14-

matters from FCC regulation and indicated that the 2(b) fence could be hurdled onl y by an unambiguous congressional grant of intrastate auth ority to the FCC or an express amendm ent

to section 2(b) itself. The Court further stated that section 2(b) als o operates as a rule of statutory construction requiring that nothing in the Act, whic h includes the 1996 amendments, be construed to pro vide the FCC with jurisdiction over intrastate telecommunications service. Id. at 376-77 n.5. The FCC and its supporting intervenors initially contend that merely the federal Act's application to intrastat e telecomm unications matters is sufficient to supply the Commission with the authority to regulate such matters, even in light of section 2(b). The Commission argues that it has plenary authority to implement all of the requirements of federa l
te lecommunications statutes and that section 2(b) restricts only the Commission' s ancillary authority. We previously rejected the same argument in Io wa Utils. Bd. , 1997 WL 40 3401, at *7, and now, we do so again for the same reasons. Our reading o f Lou isiana indicates that a federal act must expressly apply to intrastat e telecommunications matters andexplicitly direct the FCC to implement the act' s intrasta te requirements before the Commission will have jurisdiction over intrastat e tel ecommunications matters. While subsection 251(b)(3) does require dialing parity at the intrastate level, it ma kes no reference whatsoever to the FCC. See 47 U.S.C.A. § 251(b)(3). Without a clear grant of intrastate authority to the FCC, section 2(b ) stands as a fortification against the Commission's intrusion into telecommunication s matters that are intrastate in character. Alte rnatively, the FCC argues that several statutory provisions supply th e Agency with suffi ciently straightforward grants of broad intrastate authority to enable the Agency to overcome section 2(b)'s limitation. The Commission claims that subsecti on251(d)(1) directly grants the Agency authority to implement all of th e
re quirements in section 251, including the dialing parity provision in subsectio n 251(b)(3) . Subsection 251(d)(1) reads, "Within 6 months after February 8, 1996, the Commission shall complete all act ions necessary to establish regulations to implement the requirements of this section." 47 U.S.C.A. § 251(d)(1). As we found in Iowa Utils.-15-

Bd. , 1997 WL 403401, at *4, this subsection is merely a ti me limit on the Commission, directing it to complete expeditiously its rulemaking rela ted to those portions of section 25 1 that expressly call for the Commission's involvement. This provision does no t authorize the FCC to issue intraLATA dialing parity rules, because the subsectio n address ing dialing parity, § 251(b)(3), does not mention the FCC. We also reject the FCC's argument that its ge neral rulemaking authority contained in subsections 201(b), 154(i), and 303(r) of the Co mmunications Act is a legitimate source of jurisdiction for the Commission's intraLATA dialing parity rules. The FC C's jurisdiction under section 201 is specifically limited to interstate or foreign communications services. See 4 7 U.S.C. § 201(a). Meanwhile, subsections 154(i) and 303(r) merely provide the FCC with anci llary authority to promulgate additional regulations that might be required in order for the Commission to meet its principal obligations contained in other provisions of the statute. See id. §§ 154(i), 303(r); California v. FCC , 905 F.2d 1217, 1241 n.35 (9th Cir. 1990). Neither 154(i) nor 303(r) supplies the FCC with additional substantive authority sufficient to overcome section 2(b).

The group of intervenors supporting the FCC a rgues that section 160 of the Act, 47 U.S.C.A. § 160, implies that the Commission has authority to issue regulation s pursuant to the entire Act

because this section allows the Commission to forbear from applying regulations or provisions of the Act. They reason that the power to forbear from regulating necessarily presumes the power to regulate in the first plac e. While this sectio n does provide the Commission with the power to forbear from applyin g provisions of the Act, we believe that this p ower is limited to forbearing from applying those provisions that pertain to interstate telecommuni cations or the portions of the Act addressing intrastate telecommunications that also specifically call for the FCC' s involve ment

such as subsection 251(b)(2) (number portability) or subsectio n 251(c)(4)(B) (prevention of discriminatory conditions on r esale). Section 160's general authorizationallowing the FCC to forbear from applying provisions of the Act is not the type o f straightforward and unambiguous grant of intrastate authority that lifts the FCC over the section 2(b) fence. When Congress intends to vest the FCC withDialing parity is considered to be a type of "equal access obligat ion." ( See Joint 5 Br. of Intervenors in Support of the FCC at 23-24.)
-16- intrastate authority, it is well aware of how to draft a statute that overcomes sectio n 2(b). In the Telecommunications Act itself, one provision explicitly directs the FCC to "establish a per call compensation plan to ensure that all payphone service providers are fairly compensated for each and every completed intrastate and interstate call using their payph one. . . ." 47 U.S.C.A. § 276(b)(1)(A) (emphasis added). Neither section 160 nor any other provisi on in the Act supplies the FCC with such an explicit grant of intrastate authority over dialing parity. As we have stated, subsection 251(b)(3), the provis iondirectly addressing dialing parity, makes no reference to the FCC, in star k contrast to s everal other subsections of the very same section of the Act, such a s subs ection 251(b)(2) (number portability) and subsection 251(e) (numberin g administ ration), that expressly call for the FCC's participation in implementing thei r req uirements. "`[W]here Congress includes particular language in one section of a statute but om its it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.' " Russello v. United States , 464 U.S. 16, 23 (1983) (quoti ng United States v. Wong Kim Bo , 4 72 F.2d 720, 722 (5th Cir. 1972)). We believe the argument is even stronge r whe n different subsections of the same section demonstrate the difference. W e conclud e that the Act's different treatment of dialing parity signifies Congress's intent to leave regulation of this mat ter to the states. See Lindh v. Murphy , 117 S. Ct. 2059, 2064 (199 7) (finding that "a different intent explains the different treatment" of tw o provisions in the Antiterrorism and Effective Death Penalty Act of 1996).

The FCC 's last hope of justifying its intraLATA dialing parity rules rests with subsection 251(g). Although not expressly addressing dialin g parity, subsection 251(g) prese rves all of the equal access obligations and interconnection restrictions tha t 5 existed prior to February 8, 1996 "under any court order , consent decree, or regulation,-17-

order, or policy of the Commission, until such restriction s and obligations are explicitly superseded by regulations prescribed by the Commission after February 8, 1996." Id. § 251(g). This subsection also provides that such obligations and restrictions ar e enforceabl e as regulations of the Commission. The FCC contends that the 198 2 consent decree that broke up the former Bell monopoly contained intraLATA dialing parity requirements, in additio n to interLATA ones, that the FCC is now authorized to supersede under subse ction 251(g). While the court administering the consent decree did discuss matters related to intraLATA diali ng parity and attempted to provide LECs with an incentive to allow intraLATA toll competition, see Western Elec. Co. , 569 F. Supp. at 1006; United States v. Western Elec. Co. , 569 F. Supp. 1057, 1108-0 9 (D. D.C.), aff'd by California v. United States , 464 U.S. 1013 (1983), the consen t decree's provisions involving dialing parity pertained only to interLATA calls; th e decree did n ot provide any specific intraLATA dialing parity rules. See United States v. Western Elec. Co. , 552 F. Supp. 131, 233 (D.D.C. 1982). In fact, the district court expressly stated that "intrastate as well as intra-LATA regulation is not preempted by the decree and, hence, that state regulatory bodies will control tr affic within the LATAs themselves." 569 F. Supp. at 1005; s ee also , Western Elec. Co. , 569 F. Supp. at 1109 (explaining that a proposed intraLATA dialin g parity rule to be included in the consent decree "would inappropriately override state regulators' authority to decide wha t intra state calling arrangements are best suited to the public interest within thei r state s."). Moreover, the FCC itself concedes that subsection 251(g) "contains n o refe rence or cross reference to dialing parity or to section 251(b)(3)" and merel y preserves the dialing parity requirements already imposed on incum bent LECs. Second Report and Order, ¶ 29. Conseque ntly, subsection 251(g) does not authorize the FCC to issue dialing parity rules governing intraLATA telecommunications. Finally, the petitioners point out that subse ction 271(e)(2)(B) indicates that state commissions, not the F CC, have the authority to issue intraLATA dialing parity rules. In limiting a state's ability to require a Bell operating company to implement intraLATA toll dialing parity until the Bell company has received the authority to provideBe cause section 2(b) prevents the FCC from having jurisdiction only ove r 6 intra statete lecommunications matters, our decision to vacate the FCC's dialing parity
ru les does not apply to the extent that the Commission's rules govern the very smal l percentage of intraLATA, toll, interstate telecommuni cations. Our vacation order does include, ho wever, the rules' application to the even smaller percentage of intraLATA, loca l , interstate calls, despite their interstate nature. See 47 U.S.C. § 221(b); Publi c Util. Comm' n of Texas v. FCC , 886 F.2d 1325, 1331 n.5 (D.C. Cir. 1989); North Carolina Utils. Comm'n v. FCC , 552 F.2d 1036, 1045 (4t h Cir.), cert. denied , 434 U.S. 874 (1977). Because the petitioners limited their challenges to the intraLATA aspects of the FCC's dialing parity rules, we make no determination regarding the validity of the FCC's dialing parity rules as they apply to interLATA telecommunications.
-18- inte rLATAservices, this provision implies that jurisdiction to regulate intraLAT A dialing pa rity rests with the states. See 47 U.S.C.A. § 271(e)(2)(B). The FC C maintains that this subsection merely reveals that the states and the Commission have parallel jurisdiction over dialing parity. As we have demonstrated above, however , section 2(b) fences off the intrastate aspects of intraLATA dialing parity from the FCC, th us refuting the Commission's theory of parallel jurisdiction. Consequently, w e conclude that the FCC exceeded its jurisdiction in promulgating its dialing parity rules, 47 C.F.R. §§ 51.205-51 .215 (inclusive), but we set aside such rules only to the extent that they pertain to intraLATA telecommunications traffic. 6

B. Numbering Administration Rule

The pe titioners also challenge the FCC's method for recouping the costs o f estab lishing numbering administration arrangements. Numbering administratio n involves the coordination and distribution of all telephone numbers in the United States. In parti cular, the incumbent LECs target the Commission's provision that allow s carriers t o deduct the amounts they pay to other carriers for telecommunication s services and facilities from t heir gross revenues in calculating a carrier's portion of the

cos ts involved in administering a numbering administration program. See 47 C.F.R

. § 52.17(b). The petitioners contend that this rule violates the Act's requirement thatWe recently held that state commissions have the authority to establish th e 7 prices that incumbent LECs may charge their competitors for interconnection , unbund ledaccess, resale of services, and transport and termination o f te lecommunications traffic. Iowa Utils. Bd. , 1997 WL 403401, at *9. Accordingly , the question of whether or not incumbent LECs wil l be permitted to include numbering administration costs in those prices will be decided by the state commissions.
-19- numbe ring administration costs "be borne by all telecommunications carriers on a competiti vely neutral basis." 47 U.S.C.A. § 251(e)(2). The petitioners claim that i f
state commissions do not allow incumbent LECs to include their numberin g 7 adminis trationcosts in the prices they charge to their competitors fo r te lecommunications services and facilities, the deduction will afford the incomin g competitors a cost advantage and result in a noncompetitively neutral cost allocation method. On the o ther hand, the parties appear to agree that if such costs are included in the prices that incumbent LECs are permitted to charge to their competitors, then the FCC's numbering administration rule would be valid.

Articl e III of the Constitution limits our jurisdiction to deciding actual cases or controversies that are ripe for review.

The basic rationale of the ripeness doctrine is to prevent the courts , through avoidance of premature adjudicatio n, from entangling themselves in abstract disagreements over administ rative policies, and also to protect the agencies from judicial interference until an administrative decision has b e en formalized and its effects felt in a concrete way by the challenging parties.

State of Missouri v. Cuffl ey , 112 F.3d 1332, 1337 (8th Cir. 1997) (internal quotations and citation s omitted). Because the validity of this rule depends on the stat e commissions' determinations of the rates that incumbent LECs will be able to charge theirc ompeting carriers for interconnection, unbundled access, and othe r telecommunications servi ces and facilities, and none of those determinations is before-20-

us in this proceeding, we find that the alleged harm to the petitioners is speculative at this juncture and conclude that this issue is not ripe for review.

III.

In sum, we vacate the FCC's dialing parity rules, 47 C.F.R. §§ 51.205-51.215, but only to the extent that they a pply to intraLATA telecommunications and subject to the conditions noted above, see supra note 6 and accompanying text, and we find the Commission's numbering administration rule, 47 C.F.R. § 52.17, not ripe for review.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.