dc/3669294.json

"{\"id\": \"3669294\", \"name\": \"U S WEST COMMUNICATIONS, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. AT&T Corporation, et al., Intervenors\", \"name_abbreviation\": \"U S West Communications, Inc. v. Federal Communications Commission\", \"decision_date\": \"1999-06-08\", \"docket_number\": \"Nos. 98-1468, 98-1469 and 98-1471\", \"first_page\": \"224\", \"last_page\": \"228\", \"citations\": \"336 U.S. App. D.C. 224\", \"volume\": \"336\", \"reporter\": \"United States Court of Appeals for the District of Columbia Circuit\", \"court\": \"United States Court of Appeals for the District of Columbia Circuit\", \"jurisdiction\": \"District of Columbia\", \"last_updated\": \"2021-08-10T19:27:41.949517+00:00\", \"provenance\": \"CAP\", \"judges\": \"Before: SILBERMAN, WILLIAMS and TATEL, Circuit Judges.\", \"parties\": \"U S WEST COMMUNICATIONS, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. AT&T Corporation, et al., Intervenors.\", \"head_matter\": \"177 F.3d 1057\\nU S WEST COMMUNICATIONS, INC., et al., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. AT&T Corporation, et al., Intervenors.\\nNos. 98-1468, 98-1469 and 98-1471.\\nUnited States Court of Appeals, District of Columbia Circuit.\\nArgued May 3, 1999.\\nDecided June 8, 1999.\\nWilliam T. Lake argued the cause for petitioners U S WEST Communications, Inc., and Ameritech Corporation. With him on the briefs were William R. Richardson, Jr., Lynn R. Charytan, Theodore A. Livingston, John E. Muench and Raspar J. Stoffelmayr.\\nDrew S. Days, III, argued the cause for petitioner Qwest Communications Corporation. With him on the briefs was Robert H. Loeffler. Kenneth W. Irvin entered an appearance.\\nRichard K. Welch, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the brief were Joel I. Klein, Assistant Attorney General, U.S. Department of Justice, Catherine G. O\\u2019Sullivan and Adam D. Hirsh, Attorneys, Christopher J. Wright, General Counsel, Federal Communications Commission, Daniel M. Armstrong, Associate General Counsel, and John E. Ingle, Deputy Associate General Counsel.\\nDavid W. Carpenter argued the cause for intervenors AT&T Corporation, et al. With him on the brief were Peter D. Keisler, Mark C. Rosenblum, Roy E. Hoffinger, William Single, IV, Jerome L. Epstein, Donald B. Verrilli, Jr., Howard J. Symons, Sara F. Seidman, Albert H. Kramer, Andrew D. Lipman, Richard M. Rindler, W. Anthony Fitch, Brian Conboy, Thomas Jones and Robert M. McDowell. Genevieve Morelli and Michael J. Shortley, III, entered appearances.\\nJohn Thorne, Michael E. Glover, Mark L. Evans and M. Robert Sutherland were on the brief for amici curiae Bell Atlantic Telephone Companies.\\nBefore: SILBERMAN, WILLIAMS and TATEL, Circuit Judges.\", \"word_count\": \"2652\", \"char_count\": \"16347\", \"text\": \"Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.\\nSTEPHEN F. WILLIAMS, Circuit Judge:\\nUntil various conditions relating to competition in local (\\\"intraLATA\\\") telephone service are satisfied, the Telecommunications Act of 1996 generally bars each Bell operating company (\\\"BOC\\\") from providing long distance (\\\"interLATA\\\") service originating in the region where it provides local service:\\nNeither a Bell operating company, nor any affiliate of a Bell operating company, may provide interLATA services except as provided in this section.\\n\\u00a7 271(a) of the Communications Act, 47 U.S.C. \\u00a7 271(a).\\nIn May 1998 two of the BOCs, U S WEST and Ameritech, announced deals with Qwest Communications Corporation under which each BOC would market Qwest's long distance service to its customers. Each BOC employed a special label for the resulting package (\\\"Buyer's Advantage\\\" for U S WEST, \\\"CompleteAccess\\\" for Ameritech); each offered the customer \\\"one-stop shopping\\\" for both local and long distance, with all customer support (sign-up and servicing) through the BOC's own toll-free number. Qwest was to compensate each BOC with a fixed fee for every customer obtained.\\nCompetitors of Qwest in the long distance market filed complaints in two federal district courts, which referred them to the FCC. The Commission invited the filing of administrative complaints, which duly followed. The Commission held adjudicative proceedings and ultimately issued the order under review here, finding the agreements in violation of \\u00a7 271. AT&T Corp. v. Ameritech Corp., 13 FCC Red 21,438 (1998). U S WEST, Ameritech, and Qwest petitioned for review.\\nThe statutory term \\\"provide\\\" appears to us somewhat ambiguous in the present context. The Commission believes that the disputed arrangements would give the two BOCs positions in the market for local and long distance service that would greatly advantage them once they become explicitly entitled to provide long distance service. Given the reasonableness of that belief, and its relation to the overall purposes of the Act, we find the Commission's interpretation here permissible.\\nAs we said, \\u00a7 271 says that a BOC may not \\\"provide interLATA services except as provided in this section.\\\" Exceptions in the Act allow several forms of interLATA service immediately; the rest \\u2014 including the sort of service at issue here- \\u2014 is permitted, on a state-by-state basis, only upon application and FCC approval pursuant to \\u00a7 271(d). See generally SBC Communications Inc. v. FCC, 138 F.3d 410, 412-14 (D.C.Cir.1998) (explaining history and structure of \\u00a7 271(c)(d)). Neither U S WEST nor Ameritech has received \\u00a7 271(d) approval for any state: each is therefore subject to the general \\u00a7 271(a) prohibition.\\nUnder Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), we of course honor Congress's clearly expressed answer to the \\\"question\\\" confronted by the agency. See id. at 842-43, 104 S.Ct. 2778. Petitioners claim that \\u00a7 271(a)'s ban clearly cannot apply to any marketing arrangements; as the two Qwest arrangements are a form of market ing, they reason that the Commission necessarily erred in its expansive view of \\\"provide.\\\"\\nPetitioners base this claim on \\u00a7 272 of the Act. It requires that each BOC, even after receiving \\u00a7 271(d) approval, provide most interLATA services only through a separate affiliate. See 47 U.S.C. \\u00a7 272(a). Further, \\u00a7 272(g)(2) places the following restriction on the BOC and its affiliate:\\nA Bell operating company may not market or sell interLATA service provided by an affiliate required by this section within any of its in-region States until such company is authorized to provide interLATA services in such State under section 271(d) of this title.\\nId. \\u00a7 272(g)(2). The BOCs argue that since this section prevents them from marketing the interLATA service of an affiliate until they receive the go-ahead under \\u00a7 271(d), it carries a clear implication that they may, before that date, market the interLATA services of a non-affiliate such as Qwest. The Commission agreed \\u2014 to the extent of reading \\u00a7 272(g)(2) as showing that the forbidden \\\"provision]\\\" of \\u00a7 271(a) cannot cover all marketing relationships. See 13 FCC Red at 21,463, \\u00b6 32. But some arrangements that are marketing in the conventional sense of the word, it thought, could also qualify as provision of service forbidden under \\u00a7 271(a). See id. at 21,463-64, \\u00b6 33.\\nAddressing this precise question first, we think it plain that the Commission's reading of the two sections has not led it into any logical contradiction. So long as there remains some non-trivial range of marketing of non-affiliate services that does not fall under the \\u00a7 271(a) ban, the Commission preserves some scope for \\u00a7 272(g)(2)'s implicit authorization. The BOCs argue that the Commission in fact leaves no such room, pointing to language in the Order saying that although a BOC could offer its marketing services to a long distance supplier, it could not \\\"represent[ ] that [the marketed] product or service is associated with its name or services.\\\" Id. at 21,474, \\u00b6 50. Thus the Commission's view would, they say, allow a marketing arrangement only if it \\\"has no conceivable business purpose.\\\" The exact meaning of \\\"associated with its name or services\\\" is not before us, but we read the phrase together with the Commission's expression of concern about the BOCs' developing a \\\"first mover's advantage\\\" over long distance carriers in the as yet undeveloped full-service market. Id. at 21,467-68, 21,-473, \\u00b6 40-41, 49. Thus, although the Commission's view bars the BOCs from taking advantage of some of the synergies that their marketing of interLATA service might exploit, it cannot be said to cut the implicitly permissible marketing down to zero or its functional equivalent. For example, the Commission's decision explicitly allows a BOC to offer the services of its marketing department for sale of interLATA services, subject to the proviso noted above. The Commission cannot be said to have squeezed the life out of \\u00a7 272(g)(2)'s implied permission. Thus, the BOCs' argument from \\u00a7 272(g)(2) doesn't compel the narrow reading they claim for \\u00a7 271(d).\\nNor are there other reasons to suppose Congress clearly intended such a narrow interpretation. Unlike numerous other terms in the Telecommunications Act of 1996, neither the word \\\"provide\\\" nor the phrase \\\"provide interLATA services\\\" is anywhere defined in the Act. Cf. 47 U.S.C. \\u00a7 153 (definitions). \\\"InterLATA service\\\" is defined \\u2014 as \\\"telecommunications between a point located in a local access and transport area and a point located outside such area,\\\" id. \\u00a7 153(21)\\u2014 but that doesn't help: the definition does not specify some necessary relation of an actor to such telecommunications. Nor do any of the various ordinary meanings of \\\"provide\\\" appear necessarily superior in this context. See 13 FCC Red at 21,460, \\u00b6 27 (comparing dictionary definitions).\\nPetitioners also point to numerous other places where the Act uses the term \\\"provide\\\" or its cognates, see 47 U.S.C. \\u00a7 153(44) (\\\"provider of telecommunications services\\\"); id. \\u00a7 153(45) (\\\"provide telecom munications services\\\"); id. \\u00a7 271(c) (\\\"providing access and interconnection\\\"); id. \\u00a7 272(a) (\\\"provide\\\" various services, including interLATA services); id. \\u00a7 275 (\\\"provision of alarm monitoring services\\\"), arguing that the Commission's assignment of narrow meanings to \\\"provide\\\" in those instances compels equal narrowness here. But although we normally attribute consistent meanings to statutory terms, \\\"[ijdentical words may have different meanings where the subject-matter to which the words refer is not the same in the several places where they are used, or the conditions are different.\\\" Weaver v. USIA 87 F.3d 1429, 1437 (D.C.Cir.1996) (internal quotation omitted). As the Commission noted, no other section besides \\u00a7 271(a)-(b) uses \\\"provide\\\" to describe a restriction on BOCs' entry into a market where the lifting of the restriction depends on the BOCs themselves. 13 FCC Red at 21,462, \\u00b6 30. A narrow reading would thus tempt the BOCs to defer conduct that Congress hoped to accelerate \\u2014 acts facilitating the development of competition in the intraLATA market.\\nFCC's reading of \\\"provide\\\" to include the BOCs' actions here, moreover, appears clearly reasonable in the specific context of \\u00a7 271. See Chevron, 467 U.S. at 845, 104 S.Ct. 2778. As the Commission noted, \\u00a7 271 both gives the BOCs an opportunity to enter the long-distance market and conditions that opportunity on the BOCs' own actions in opening up their local markets. See 13 FCC Red at 21,645, \\u00b636. The Commission viewed the powerful incentive set up by this scheme as shedding light on the market entry prohibition:\\n[I]n order to determine whether a BOC is providing interLATA service within the meaning of section 271, we must assess whether a BOC's involvement in the long distance market enables it to obtain competitive advantages, thereby reducing its incentive to cooperate in opening its local market to competition.\\nId. at 21,465, \\u00b6 37.\\nThis seems reasonable as a general approach. Of course too-broad a notion of \\\"competitive advantage\\\" or ' incentive ' could make it nonsensical, turning it into an excuse to stifle the BOCs at every opportunity. But the FCC found that the arrangements here would have afforded the BOCs in question a serious advantage, namely a \\\"first mover's advantage\\\" over any non-BOC firms hoping to secure a position in the anticipated full-service market. See id. at 21,467-68, 21,473, \\u00b6 40-41, 49. By offering one-stop shopping for local and long distance under their own brand name and with their own customer care, see id. at 21,466, \\u00b6 38, U S WEST and Ameritech could build up goodwill as full-service providers, positioning themselves in these markets before \\u00a7 271 allows them actually to enter. There appears to have been specific congressional concern over the impact of jointly marketed local and long distance service; this is manifested in the \\u00a7 271(e) rule barring the major interLATA carriers from jointly marketing their interLATA service with local service obtained from a BOC, for three years or until the BOC in question gains access to the long distance market under \\u00a7 271, whichever is first. See id. at 21,473-74, \\u00b6 49; 47 U.S.C. \\u00a7 271(e)(1). If the BOCs could secure this advantage without opening their local service markets, the blunting of the intended incentive would be considerable \\u2014 or so the Commission could reasonably find.\\nPetitioners seek to press the \\u00a7 271(e) likeness further. They note that the Commission, despite what they claim is an incentive structure similar to \\u00a7 271(a)'s, relied on the First Amendment in allowing long distance carriers covered by \\u00a7 271(e) to engage in certain advertising activities paralleling what is forbidden here. See In the Matter of Implementation of the Non-Accounting Safeguards of Sections 271 and 272 of the Communications Act of 193k, as amended, 11 FCC Red 21905, 22,040-41, \\u00b6 279-80. But \\u00a7 271(e) allows the long distance carriers to (1) offer and market separately their long distance service plus resold BOC services, and (2) offer and market jointly their long distance service and local service not based on resold BOC services. In that context, the Commission allowed a covered carrier to proclaim its offers both of long distance and of resold BOC local service in a single ad, so long as it did not offer such service as a \\\"bundle\\\" or otherwise with \\\"one-stop\\\" shopping. Id. In short, it let them truthfully advertise the services they could lawfully provide, but no more. As the BOCs are barred from providing interLATA service until they have surmounted the \\u00a7 271(d) hurdles, the present case presents no real analogy.\\nContext also explains the Commission's application of the \\\"engage in the provision of alarm monitoring\\\" language of \\u00a7 275. The Commission and the petitioners spar over whether the Commission's approach here is genuinely different, but we need not resolve the clash, as the differences in the statutory contexts justify different outcomes. See 13 FCC Red at 21,462-63, \\u00b6 31. Incentives are not as crucial in a situation where the business prohibition will be lifted in a fixed time, as they will for alarm monitoring, see 47 U.S.C. \\u00a7 275(a)(1), as where its duration depends on the BOC's own actions.\\nThe Commission's action here of course does not represent a complete demarcation of the border between permitted marketing and forbidden provision. That is entirely reasonable. Apart from the Commission's general authority to choose between adjudication and rulemaking, see NLRB v. Bell Aerospace Co., 416 U.S. 267, 294, 94 S.Ct. 1757, 40 L.Ed.2d 134 (1974), it makes sense for it to proceed through case-by-case judgments of a questioned action's likely effect \\u2014 whether, for example, the marketing materials will cause consumers to identify the services with the BOC. While \\u2014 as we've noted \\u2014 some of the Commission's language on incentives is rather broad, it is not inconsistent with future judgments balancing the interests that are relevant under \\u00a7 271(a). We are also puzzled by the Commission's concern that the two BOCs in each instance laid down the terms for the transaction, which Qwest humbly accepted. 13 FCC Red at 21,449-50, 21,452, \\u00b6 10, 14. As the BOCs had unique advantages to offer Qwest, this course of events was hardly surprising; we cannot see that the issue of who first proposed what to whom has much bearing on the policy values at stake. But the Commission's detours on the subject do not appear to have played a decisive role in its decision.\\nPetitioners also assert a want of substantial evidence. They regard the Commission's ultimate finding as belied by Qwest's repeated identification in the BOCs' marketing materials as the long distance provider. But that identification is still consistent with the view that the materials as a whole would lead consumers to link long-distance service to the BOCs, particularly as long distance was offered only as part of a full-service package with a BOC brand name. Nor does it appear that the FCC, by pointing to various activities characterized as \\\"typically performed by those who resell interLATA services,\\\" 13 FCC Red at 21,471-73, \\u00b6 46, 48, was somehow suggesting that the ultimate finding of \\\"provider\\\" status depended on an intermediate finding of \\\"reseller\\\" status; petitioners' arguments that they are not actually resellers are thus misguided.\\nThe petitions are\\nDenied.\"}"