Comsat Corp. v. Federal Communications Commission

that, supported by assuming cause Gonzalez’s sentence is even this court concluded contrary-to that the not plain error standard the record and is law. under the Furthermore, to state its reason- alleged failure failure by district court’s error that was ing in court was an open court does not rise to level of district obvious, not defendant had clear or fairness, “seriously affeet[ing] integri- rights substantial had been shown that his public judicial proceed- ty, reputation or of 441. Iza- 219 F.3d at The affected. See Izaguirre-Losoya, 219 F.3d 441. ings.” be- explained court that guirre-Losoya within dis- cause court was its the district V. CONCLUSION impose cretion to consecutive sentences reasons, we foregoing For the AFFIRM criminal background defendant’s

given the terms of im- imprisonment the consecutive informed the parties and because after its posed the district court revoca- against of reasons for and con- court terms tion of Gonzalez’s concurrent of su- im- sentencing, “the secutive sentence release. pervised by the and posed supported was record Therefore, the contrary to law.” Id. not that the defendant’s sub-

court concluded id. were not affected. rights

stantial 442; Zanghi, States v. United cf. (10th Cir.2000) (conclud- standard, an abuse discretion

ing, under need make particular- that court not CORPORATION; COMSAT AT&T factor). each findings ized on Petitioners, Corporation, failed demon Gonzalez has v. any alleged part error strate that his the district court affected substantial FEDERAL COMMUNICATIONS our in Part III su rights. As discussion COMMISSION; United States indicates, the not pra district court was America, Respondents. required impose a concurrent sentence Petitioner, impose and within its discretion to Corporation, was AT&T court consecutive sentences. district parties extensively discussed Commission; Federal Communications imposing consecutive sen propriety America, United States of tences. The record demonstrates Respondents. ensuring effort went into substantial appropriate, sentence con Gonzalez’s was No. 00-60044. history his criminal and the dis sidering Appeals, Court of United States re trict court’s belief that Gonzalez would Fifth Circuit. Moreover, as we noted peat the offense.

above, pre judge the same district court 3,May hearing over the revocation sided original sentencing hearing and was well background. criminal

aware of Gonzalez’s assuming even there

Accordingly, plain,

was and it was we conclude error imposed the total sentence did be- rights

affect substantial Gonzalez’s McKenna, Qwest B.

Robert Communica- Beck, Inc., R. tions International Steven Denver, West, West, CO, Inc. US US Communications, Inc. and West US M. (argued), Lisa Gelb Daniel Serene III, E. Armstrong, Ingle, John Christo- Wright, Joseph Federal Communica- pher Commission, DC, for Washington, tion F.C.C. Garrison,

Nancy G. O’Sulli- C. Catherine Div., Justice, van, Dept, of Antitrust U.S. Section, DC, for Washington, United App. of America. States DAVIS and EMILIO M. Before POGUE*, GARZA, Judges, Circuit Judge. GARZA, Judge: M.

EMILIO Circuit AT&T, along with interve- Comsat WorldCom, Inc., Sprint Corpo- nors MCI ration, Resellers and Telecommunications Association, Federal- petition for review of Service, Board Joint on Universal State 96-45, Docket No. Sixteenth Order CC Reconsideration, 99-290, 15 FCC FCC J. Danny (argued), E. Adams Rebekah (released 1679, WL Oct. Red. 809713 Kinnett, Warren, Kelley, Drye Washing- & (“Remand Order”). 8, 1999) Finding that DC, ton, Corp. for Comsat standing, lacks we dismiss Com- Comsat P. With jurisdiction. lack (argued), petition C. Schaerr James sat’s for Gene DC, and the Austin, of AT&T Sidley Washington, respect & Young, intervenors, we and remand. reverse Corp. AT&T for Inc., WorldCom, IV, Single, William I O’Neil, III, F. MCI Telecommuni- Thomas Act Pursuant Telecommunications DC, Corp., Washington, for MCI cations 104-104, Pub.L. No. 110 Stat. WorldCom. (codified sections as amended in scattered Hunter, M. Han- C. Charles Catherine (“the Act”), Code) title United States nan, Group, Hunter Communications Law Commission the Federal Communications DC, for Washington, Telecommunications Commission”) (“the its 1997 Univer- issued Resellers Ass’n. Order. See Federal-State sal Service Service, Juhnke, 12 FCC Corp., Richard on Universal Sprint Harold Joint Board (1997). Nu- DC, WL Washington, Sprint Corp. Red. * Trade, designation. sitting by Judge, United States of International Court order, parties challenged TOPUC,

merous explicit. and versal service be part it in 183 F.3d at 425. agreed affirmed and reversed it in We and conclud- ed plain part language in of 47 U.S.C. our decision Texas Office of did not “permit the to main- Utility Public Counsel v. tain any implicit (5th Cir.1999) (“TOPUC”). subsidies for universal support.” service Id. We further found TOPUC, we addressed portions two forcing ILECs to “recover their perti- the 1997 Universal Service Order universal service contributions ac- First, petitions nent to the now before us. charges, cess interpretation the FCC’s Comsat, party also attacked subsidy maintain[ed] the inclusion of international services reve- Accordingly, ILECs.” Id. we reversed determining nue carrier’s universal and remanded to the FCC. service fund contribution. con- Comsat In response to the Commission itself, tended that for carriers like who issued the Remand agency Order. The generate minimal interstate services reve- adopted bright-line a percentage rule for nues, the FCC’s rule it required pay a when a carrier’s international revenues universal service contribution that exceed- would be included in the base from which ed its interstate services revenues. Com- agency calculates the carrier’s univer- sat maintained that this outcome violated sal service contribution. Under the new 254(d)’s § requirement that all universal rule, if a carrier per- derives less than 8 support service equitable be and nondis- cent of its revenue from interstate ser- criminatory. agreed We and found that vices, its international revenues will not be interpretation the Commission’s of used in calculating the contribution. For 254(d), § impose which it found it could those carriers receiving percent 8 or more carriers, such “arbitrary costs on was and services, of their revenues from interstate capricious manifestly contrary and the FCC will include their international statute.” Id. at 434-35. revenue in the base determining their Second, that requiring GTE asserted in- contributions. The Commission also re- cumbent local exchange carriers vised its rule regarding ILEC access (“ILECs”)1 to recovér their universal ser- charges by permitting, rather than requir- through vice costs charges access to inter- ing, ILECs to recover their universal ser- (“IXCs”)2 exchange carriers contravened vice through costs to inter- support Act’s mandate that all for uni- state carriers.3 exchange provides FCC, 1. A local carrier local tele Southwestern Bell Tel. Co. v. 168 F.3d (D.C.Cir.1999). phone particular geographi a 1347 service within calling cal area. ILECs were those local ex order, subsequent a 3.In the Commission nar- change historically granted carriers exclusive permissive rowed its apply only rule to it provide franchises to local service. See Assoc. non-price cap competitive ILECs and LECs. Communications Enter. v. Charge Reform, See In re Cap Access Price (D.C.Cir.2001); 153(26) § 664 47 U.S.C. Exchange Review Local Carri- Performance carrier”); (defining exchange “local 47 ers, Users, Long Low Volume Distance and 153(47) § (defining “telephone U.S.C. ex Federal-State Joint Board on Universal Ser- service”). change vice, Report Sixth and Order in CC Docket 94-1, Report No. 96-26 and and Order in CC IXCs, carriers, long distance “must obtain 99-249, Docket No. Report and Eleventh and telephone access to local customers in order 96-45, 00-193, Order in CC Docket 15 to sell their services. An IXC connects to 56, 69.158, its app. FCC Red. B at long-distance by using spe- (2000) customers either price WL (requiring cap ILECs cial access or switched access facilities.” through to recover universal service costs end Third, likely opposed it must be as AT&T filed for review each Comsat will merely speculative injury in the District that the of the Remand Order Then- Appeals. Court of a Id. Columbia Circuit redressed favorable decision.” (internal they 560-61, made quota cases were consolidated 112 S.Ct. at 2136 Circuit, transfer the to our omitted); motion to case citations Bertulli tions and see Inc., granted. Pilots, which was MCI WorldCom Indep. Assoc. Continental Re- Sprint Corp., and Telecommunications (5th Cir.2001). 290, 294-95 Comsat Association intervened.4 Comsat sellers demonstrating the burden it bears percent challenges the Commission’s requirements. Lujan, has met these challenges rule. AT&T the Commission’s 561, 112 at 2136. 504 U.S. S.Ct. uni- recover permit decision to ILECs to makes no currently pay Comsat fund versal service contributions fund, nor are ment to universal service charges to interstate carriers. trigger its revenues sufficient to Thus, injury is rule. Comsat’s percent II makes pay that it now a universal service matter, must preliminary As it subject percent ment nor that to the 8 the Commission’s assertion address Instead, it suf posits rule. Comsat chal standing bring lacks to this Comsat First, injuries. two fers from interrelated per fund 8 lenge to the universal service it the threat of it contends faces lacks rule. If cent contribution Comsat universal payment massive service should jurisdiction we lack to consider standing, percent the 8 its interstate revenues reach challenge. its See Steel Co. v. Citizens for Second, the cost of that contri threshold. Env’t, 83, 94, 523 118 S.Ct. a Better U.S. be to great would so as render bution (a (1998) 1003, party’s L.Ed.2d 210 140 into the entry interstate services market must be first because standing addressed and, therefore, the threat of unprofitable, jurisdiction court cannot the “[without operates as a barrier to payment this cause”) Ex proceed (quoting at all In entry sup into that market. Comsat’s McCardle, 514, 506, parte 7 Wall. 19 L.Ed. argument, of its Comsat maintains port J.). (1868)) Scalia, of (opinion 264 of it faces is payment that the threat anal The “irreducible constitutional injury by the the ogous to suffered New standing” requires minimum of three City Hospitals Corp. Health and York Lujan v. Wild things. See of Defenders York, (“NYCHHC”) in v. New 524 Clinton 2130, 2136, 555, 560, 112 life, 504 U.S. S.Ct. 2091, 141 L.Ed.2d 118 S.Ct. 393 U.S. (1992). plain 119 351 the L.Ed.2d “First (1998), Supreme which the Court found tiff, ‘injury have must suffered an standing to confer on NYCHHC. sufficient protected invasion of a legally fact’—an disagree. We (a) particu which is concrete and interest Clinton, Supreme In the Court conclud- (b) imminent, larized, actual and or standing the NYCHHC had to ed Second, there conjectural hypothetical. or the constitutionality of Line challenge a causal between must be connection Act, §§ 2 Item Veto U.S.C. 691-692. injury complained and the conduct of—the challenged the President’s can- the NYCHHC injury fairly to be traceable to has provision of a that would have action of defendant.... cellation challenged WorldCom, Inc., AT&T, leaving cap charges, price ILECs 4. Hereinafter MCI user non Corporation, Sprint the Telecommunica- and competitive LECs their costs to recover collectively are re- tions Resellers Association IXCs). through access to as AT&T. ferred to 936 real, contingent speculative. of its liabili threat is rather than See

relieved NYCHHC Arkansas, 149, 158, States, which remained v. the United Whitmore 495 U.S. ty to 1717, 1724-1725, 109 contingent because of a pending 110 S.Ct. L.Ed.2d 135 Clinton, (1990) (“A liability. waiver of the See injury for a threatened cer must be 422, 118 S.Ct. at 2095. Comsat 524 U.S. injury in tainly impending to constitute an that it suffers a contin fact.”) (internal contends too from quotations and citations i.e., liability, universal gent possible Trominski, omitted); Loa-Hetera 231 payment. compari In making service (5th (“Mere Cir.2000) F.3d threat son, Comsat on NYCHHC’s still focuses sufficient, injury ened and the threat waiver for relief pending potential and the real.”). Here, in this case is order provided apart from that which this waiver payment threat of a universal service be provision have would been afforded concrete, sufficiently Comsat must be able comparison not been had it canceled. This expand into the interstate services mar to NYCHHC is flawed because Comsat ket so increase its as revenue contingent assumes NYCHHC’s requisite percent. Ange City Los liability per gave se injury was the 95, 105, Lyons, les v. S.Ct. U.S. standing. Supreme NYCHHC (1983) 1660, 1667, (“Lyons’ 75 L.Ed.2d 675 reasoning demonstrates otherwise. Court’s injunction seek the standing requested rejecting government’s contention depended likely whether he to suf was injury speculative that NYCHHC’s was too injury fer future from the use waived, liability might because still officers.”); by police Prestage chokeholds injury compared the Court NYCHHC’s Supervisors Farms v. Bd. Noxubee setting aside of a verdict favorable Miss., (5th County, Cir. remanding for a new The Court trial. 2000) (denying standing party where failed stated: “Even if the the second outcome of challenged to show ordinance had a “con reversal, speculative, is trial like the endeavors). crete effect” its business cancellation, signifi President’s causes time, however, At this there are various injury by depriving cant immediate regulations, unrelated to chal of the defendant benefit of a favorable rule, that lenged prevent from ex Comsat 431, judgment.” final Id. at 118 at S.Ct. panding its interstate services. Comsat injury 2099. NYCHHC’s occurred when argu asserted for first time at oral the President provision, canceled the de it had an application pending ment that it priving liability. of immediate from relief regulat FCC to before the remove these liability might The fact that NYCHHC’s assuming arguendo ions.5 Even that this later have been relieved waiver did this us, is allegation properly before Comsat not affect the Court’s that the conclusion that also admitted the FCC could remove cancellation caused to lose a NYCHHC part. Obviously, in or in these whole already benefit which it in hand. had also decide FCC could not to remove Comsat, contrast, does not contend that regulatory Consequent of these barriers. Thus, it inappo- lost benefit. is Clinton ly, pay the threat of a universal service site the case at to bar. conjectural ment is because cannot Comsat

A injury expand threatened satisfies the its interstate services those due to injury requirement long barriers, fact that so as and the likelihood that will be it argued argument 5. Comsat are for the first time oral waived. See Food Whitehead v. Miss., Inc., 265, (5th argument merger that its with Lockheed Mar- Max Thus, 1998). standing argument. Argu- tin bore on its Cir. we do not this ar consider presented gument. ments for the at oral first time recovery eliminate cost speculative. agency must ILEC merely so is to do able Therefore, con alleged charges) fails to to the Com- injury through this IXC injury in filing petition an fact. prior stitute the instant mission review, hearing we are from barred for second assertion As for Comsat’s disagree. for review. We petition AT&T’s payment bars Comsat this threatened ¶ Order, 32, the Com- In the Remand mar- entering the interstate services from Fifth stated: “We believe that the mission ket, this need not determine whether only intended hold section Circuit in fact. injury an injury would constitute in- requiring barred the FCC from inability to the interstate enter Comsat’s universal ser- cumbent LECs recover to meet the ability market undermines its charges.” challenged that the action vice contributions requirement ¶ (“To alleged injury. fairly comply traceable also id. at 33 with inability to the interstate enter incum- expand Comsat’s Fifth Circuit’s order we will regula- market other results from services options recovering their bent LEC’s rule; tions, than percent contributions.”). rather the 8 In do- universal service therefore, standing have Comsat does not so, the no- the Commission discarded ing Seldin, 422 on this basis. See Warth v. holding required tion that our TOPUC 490, 506, S.Ct. U.S. subsidy. elimination (1975) (finding failure to dem- L.Ed.2d considered Where the Commission has appeared causation it onstrate where § 405 does review argument, preclude partic- financial petitioners’ situations petitioner’s of a claim. See Time Warner housing needs their suggested ular Entertainment, Co., FCC, 144 F.3d L.P. v. inability purchase in the town homes (D.C.Cir.1998) (“So the issue long as from actions but respondents’ resulted not necessarily implicated by argument housing the “economics of the area from Commission, made to the section 405 does market”). Accordingly, because neither review.”). not bar our succeeds, standing bases proffered reviewing ac the Commission’s for lack of we dismiss Comsat’s claims, we on the merits of AT&T’s tions jurisdiction. two-step set forth apply inquiry Inc. v. Natural Res.

Ill Chevron U.S.A. Def. Council, 842-843, 837, 467 U.S. 104 S.Ct. proceeding Before to the merits (1984). 2781-2783, 2778, 81 L.Ed.2d 694 the petition, we must address AT&T’s one, we “Con step In determine whether that 47 U.S.C. Commission’s contention spoken directly precise gress has peti § AT&T’s 405 bars consideration of 842, at question at issue.” Id. at S.Ct. 405, § must afford party tion. Under so, we must Congress If has done 2781. pass to opportunity the Commission [Congress’s] unambiguously to effect “give judi arguments party presents the the 843, at intent.” Id. at 104 S.Ct. expressed § The review. See 47 405.6 cial U.S.C. ambig If we find the statute is 2781. contends that because AT&T Commission issue, (i.e., to at respect question with the present failed to its assertion uous resulting provides part party proceedings § in relevant not a to 6. 47 U.S.C. order, (2) decision, report, that: or action or such upon questions law filing of a relies on of factor for reconsideration Commission, [by designate shall not be a condi- au- Commission] or which precedent judicial review of tion thority has been within Commission action, order, decision, report, ex- such or opportunity pass. afforded no (1) cept party seeking where the review was Alenco, 425; proceed step question we two and “the 201 F.3d at (finding 254(e) agency’s § [us] is whether answer is that all universal “mandat[es] ser- permissible and, thus, upon support by based construction.” vice explicit” DEM eliminated). Id. at 104 S.Ct. at 2782. If we weighting reach had to be may only step, second reverse Relying on our decisions in TOPUC and agency’s decision if we find that the deci- Alenco, AT&T contends that the Commis- “arbitrary, capricious, sion was or mani- sion cannot permit ILECs to recover their festly contrary to the Id. statute.” universal service costs via access charges 104 S.Ct. at 2782. 254(e). § to interstate carriers because re- quires the implicit elimination of all subsi- 254(e) provides Section that univer response, dies. In the Commission main- support sal explicit.” service “should be holding tains that our in TOPUC was TOPUC, plain we concluded that “the narrower, much precluding only the FCC language §of permit does not from requiring ILECs recover costs any implicit FCC to maintain subsidies.” through charges. access See Remand Or- (5th Cir.1999). 183 F.3d at 425 In this ¶ der, Moreover, the Commission case, TOPUC, in contrast to it is not dis asserts that this rule harmonizes TOPUC puted recovery that the of universal ser Eighth with the Circuit’s decision in vice through charge costs access to IXCs FCC, Southwestern Bell Tel. Co. v. concedes, is an implicit subsidy. The FCC (8th Cir.1998). F.3d 523 See Remand Or- and we agree, that TOPUC forecloses such ¶ der, at 33.7 id.; an argument. see See also Alenco Communications, Inc. v. The Commission contends that our hold- (5th Cir.2000) (“We made clear in ing merely proscribed requir- TOPUC implicit/explicit TOPUC that distinc ing ILECS recover universal service tion turns on the between distinction direct costs through charges access to IXCs. In support subsidies from recovery support contention, funds and of this agency (1) through charges access and rate points struc to: scope argument GTE’s tures.”). TOPUC; (2) Congress directly Because has that we declined to spoken to this issue and the charge grant standing to MCI as an intervenor. is an subsidy, we review the chal The Commission is correct that at- GTE lenged rule step-one. under Chevron tacked the FCC rule requiring it to recoup Thus, what we must resolve is whether the universal service costs from access charges FCC decision to permit ILECs to continue to IXCs on the ground that the absence of to recover universal service costs choice in its recovery cost methods would to interstate vio put carriers it at a competitive disadvantage with 254(e). lates We hold that permitting potential competitors. new recovery method of cost Nevertheless, not, countermands F.3d 425. we did Congress’s directive, legislative clear as we as the Commission suggested argu- at oral articulated in ment, TOPUC and in reject reaffirmed recovery the of universal ser- Alenco, that universal service support vice through costs access charges because TOPUC, must be explicit. See unfairly 183 F.3d at it forced to ILECs use this meth- ever, issue, The Commission also contends that the rule raising failed to brief this it for the and, permitting charges access Thus, is transitional argument. first time at oral the Com therefore, step-two applies, thereby Chevron argument. mission has waived this See Zuc granting it the discretion to continue the im- Corp., carello v. Exxon 756 F.2d 407-08 plicit subsidy during the to the ex- transition (5th Cir.1985). plicit Commission, subsidy system. The how- ” (quoting vice Id. at 438 recovery. argu- lenges and versa.’ od cost While GTE’s choice, the on the ment focused absence Tel. ll. Bell Co. v. I between “re- agency distinction the draws (D.C.Cir.1990)). so, doing we In sim a differ- quire” “permit” one without that, of the ply indicated as a result differ previous that We found the FCC’s ence. argument ence between MCI’s those require subsi- implicit to “continuefd] rule proffered by petitioners, possibility the the recovery dies,” that cost requiring not denying the petitioners existed for relief charges implicit the access was through it to It was not a com granting but MCI. added). short, (emphasis In subsidy. Id. we not hold. As ment on what did or did 254(e) § in did holding our TOPUC that result, decision in not to our TOPUC ad require the Commission to permit argument not impinge dress MCI’s does costs to recover universal service ILECs 254(e) § holding our does not upon charges recovery the via access turned on maintain any the Commission “to permit se, not per whether the Commis- method at 425. implicit subsidies.” Id. Thus, we sion or mandated it. permitted charges that the access constituted held next maintains it Commission in subsidy violation of the clear implicit permit recoup needed to ILECs to their for support directive that congressional charges in universal service cost via explicit. be id. universal service See in comply holding to with our order TO Second, the contends Commission Eighth and the decision in PUC Circuit’s argument to consider declining MCI’s disagree. Bell. Our Southwestern We sis TOPUC, invali- holding we limited our to recovery ter circuit concluded that charges requirement of access dating costs did not con contribution from IXCs Specifically, to the Commission IXCs. was “a implicit subsidy, stitute an but real that our of MCI’s description maintains doing cost of business.” Southivestem seeking assertions as “the elimination Bell, finding F.3d at 554. This cannot holding. implicit subsidies” cabins our holding harmonized with our that the glean to much from our The FCC tries too recovery of universal service costs declining grant to MCI interve- decision subsidy. charges implicit is an MCI, filing than nor-standing. rather TOPUC, Furthermore, F.3d at 425. review, intervene sought Eighth reached this because Circuit re- challenge plan order FCC’s conclusion, ques pass upon it did not charges by the amount re- duce access tion of whether allowed subsi- explicit ceived as universal service permit a continuation of subsi asserted the access dies. MCI Finally, contrary Commis for- dies. should be reduced “to the charges contention, agency complied level it could have ward-looking by cost used sion’s support high-costs to calculate areas” Bell with both TOPUC and Southwestern the failure to so violated because do by precluding the access IXCs. im- “statutory eliminate mandate to FCC’s Thus, argument unavailing. find this plicit implements when it subsidies short, holding in we find that our plan.” new universal service makes it clear that “FCC TOPUC chal- We found that this 437-38. any implicit maintain subsidies” cannot from lenge presented differed those permissive mandatory ba- whether on or such, petitioners. grant As we declined to “ We hold that the FCC’s Remand sis. ‘we could standing, finding that MCI recoup ILECs to permitting the Order grant intervenor full relief it seeks chal- universal services costs access rejecting petitioners’ all of the while charges contrary plain language is to the explicit” “shall be or be explicit,” “must as 254(e). §of acknowledged is TOPUC itself ad- dressing part a different of the statute.

IV TOPUC, (“Generally See 183 F.3d at 418 reasons, foregoing For the we DISMISS speaking, courts have read ‘shall’ as a petition jurisdiction. Comsat’s for want of statutory more direct command than We GRANT AT&T’s for review ”) (foot- words such as ‘may.’ ‘should’ or REMAND we REVERSE and to the omitted). Moreover, note the statute is proceedings Commission for not inconsis- silent insofar as it any does not define tent with opinion. the relevant (“explicit,” terms “implicit,” “support” “subsidy”), or and the TOPUC POGUE, Judge, concurring: recognized court that ambig- the statute is I agree majority with the that the deci- uous to the meaning “explicit.” as sions Texas Pub. Util. Counsel Office of TOPUC, 183 F.3d at 425. It is also rele- (5th FCC, Cir.1999) (“TO- 183 F.3d 393 254(b) statute, vant § that of the which PUC’), Communs., and Meneo Inc. v. lists principles,” “Universal service states (5th Cir.2000), 201 F.3d 608 control that support spe- mechanisms “should be the outcome in this case. I write separate- cific, predictable and sufficient ... pre- ly my express concerns with the TO- serve and advance universal service.” 47 PUC court’s that conclusions 254(b)(5). 254(b)(5) § § U.S.C. That does subsidies, charges are implicit and that suggest that support mechanisms 254(e) plain § “the language does not should also be explicit makes it even more permit any the FCC to maintain 254(e) § difficult for me agree is subsidies,” preventing thus the court from unambiguous on its face. “afford[ing] step- Chevron two deference in light unambiguous of this 254(e) Assuming that language § TOPUC, Congressional intent.” See ambiguous, is then step Chevron two 425; F.3d at see also Chevron U.S.A. Inc. TOPUC, apply. should the FCC ad- Council, v. Natural Resources Defense argument vanced an 837, 842-43, 2778, 2781-82, U.S. 104 S.Ct. could be they maintained because are ex- (1984) 81 L.Ed.2d 694 (holding that if carrier, plicit to the even though implicit to “Congress directly spoken has pre- to the TOPUC, the consumer. See 183 F.3d at issue,” question cise at the court must 425. It is not evident interpret- to me that “give to [Congress’s] unambiguously effect ing the statute “explicit to mean intent”; expressed if the statute is silent carrier” is unreasonable interpretation or ambiguous respect with question of the language explicit.” “should be issue, the court agen- asks “whether the statute does not answer question of to cy’s answer permissible is based on a con- statute”). support whom the explicit, should be struction of nor suggest does it support be explicit to Section provides that “support parties. all It thus seems to me that the should explicit and sufficient to achieve FCC’s interpretation may well be reason- purposes of this section.” 47 U.S.C. able, especially support where the mecha- 254(e) (1986) added). (emphasis It “specific, nism is otherwise predictable and simply not clear to me language that this sufficient ... preserve uni- advance amounts to a “plain, statutory direct com- service,” and, versal generally, mand.” “to achieve In- deed, it is accepted purposes that “should” of this does not section.” U.S.C. convey (e). 254(b)(5), §§ command in way the same effect controlling Although respect I disposition of and Alenco on the

of TOPUC case, that the TOPUC my opinion it is interpreta- afford the FCC’s failed to

court required deference the statute the

tion of these For doctrine.

under the Chevron

reasons, I concur. America, STATES

UNITED

Plaintiff-Appellee, MARTINEZ, Defendant-

Alfredo

Appellant.

No. 00-40565. Appeals, Court of

United States

Fifth Circuit.

8,May Lee Snyder, James

Kathlyn Giannaula TX, Houston, Turner, Atty., Asst. U.S. Plaintiff-Appellee. Def., Dahlin, If, Fed. Pub.

Roland E. Cordova, Newton, A. Joseph Brent Evan Houston, TX, Defendant-Appellant. GARWOOD, HALL and Before BARKSDALE, Judges. Circuit PER CURIAM: pos- pleaded guilty Martinez Alfredo of mari- kilograms less than 50 session of distribute, in violation with intent to juana 841(b)(1)(D). 841(a)(1) §§ of 21 U.S.C. sentencing hearing, May 2000 At his 15 impris- term of imposed a 36-month court supervised four-year term of and a onment fine, release; and, in of a the court lieu Circuit, designation. sitting by Judge Ninth of the 1. Circuit

Case Details

Case Name: Comsat Corp. v. Federal Communications Commission

Court Name: Court of Appeals for the Fifth Circuit

Date Published: May 23, 2001

Citation: 250 F.3d 931

Docket Number: 00-60044

Court Abbreviation: 5th Cir.