In Re Core Communications, Inc.

849 how to treat decide granted discretion COMMUNICATIONS, In re CORE The Sec- population. waiver expansion INC., Petitioner. than policies rather to issue

retary chose practical and to base them regulations No. 07-1446. constraints. instead concerns Appeals, United States Court of See, Interme- Program Memorandum e.g., District of Columbia Circuit. A-99-62; Fed.Reg. diaries, No. Trans. Argued May 2008. Decided July 2008. conclude lead us to These considerations unclear, prior to the Deficit it was Act, Secretary had whether the Reduction waiver expansion to exclude

discretion share disproportionate

population It there adjustment. follows that

hospital The Deficit retroactivity. problem retroactively alter Act did not

Reduction law; simply ambigui clarified an

settled legislation. Deficit

ty existing in the 5002(a).7 so, doing Act

Reduction Secretary’s ratified the earlier

Congress “including policy regard

policies, January occurring discharges prior Secretary 2000,” emphasize that the authority. discretionary

always had this 5002(b)(3)(A).8

§Id.

Affirmed. ambiguity in Thompson, 257- Because the Act resolves an v. See Brown Cir.2004); law, (4th hospitals’ nothing Piamba v. Am. Air Cortes there is Inc., lines, (11th Cir. F.3d Process violates, the Act Due claim Belshe, 1999); Beverly Hosp. Comm. Ass’n Comm., Beverly 132 F.3d at 1267. Clause. See (9th Cir.1997); Liquilux F.3d Sales, Corp. Gas v. Martin Gas (1st Cir. legal

be able to state a valid basis for its rule. justification

No such has been forthcom- Communications, Inc., ing. Core which is injured by rules, the FCC’s has filed a mandamus, petition seeking for a writ of compelling an order the Commission to explain legal authority upon which the based, rules are pain of vacatur if it fails to do so within a fixed time. This is petition seeking Core’s second such relief. We dismissed its first in “without prejudice refiling signifi- the event of cant delay.” delay additional That pass. years now come to It has been three B. since argued Michael Hazzard the cause we dismissed Core’s first petitioner. for him on the six since we With briefs remanded the case to was P. to do Joseph nothing Bowser. more than state the legal justification for its rules. At this Palmore, Deputy R. Joseph General point, the FCC’s in responding to Counsel, argued respondent. the cause for our egregious. remand is With him on the brief were Matthew B. grant We therefore the writ of manda- Counsel, Berry, General Richard K. sought by mus Core and direct the Welch, Acting Deputy Associate General explain basis its ISP-bound Counsel, Joshi, and Nandan M. Counsel.

compensation rules within six months of GARLAND, TATEL, Before: the date of argument the oral in this case. GRIFFITH, Judges. Circuit There will be no extensions of that dead- line. The will day rules be vacated on the Opinion by for the Court filed Circuit deadline, after the unless the court is noti- Judge GARLAND. fied that complied Commission has with our direction. Concurring opinion filed Circuit Judge GRIFFITH. I

GARLAND, Judge: Circuit opinion in Our In re Core Communica- tions, Inc., The Federal (D.C.Cir.2006), Communications Commis- 455 F.3d 267 (FCC) sion has twice failed to articulate a sets forth much background neces- justification valid legal govern- sary to understand how this case arrived intercarrier for telecom- juncture, its current and we therefore munications traffic bound for Internet ser- liberally borrow exposition. from that As (ISPs). providers vice In March this we explained in high-speed before (such vacated and remanded the Commis- broadband connections as cable mo- sion’s justification. (DSL) first attempt at a digital dem and subscriber line ser- May vice) rejected attempt, its second widely available, became consumers in that case remanding vacating without generally gained access to the Internet because we thought there was a “non- through “dial—up” provided connections trivial likelihood” the Commission would by telephone local companies. Under the method, required line would for the rangements uses a be consumer dial—up described, hand-off exchange a local ILEC-to-CLEC provided ex- (LEC)—usually required compen- local ILECs would incumbent (ILEC)—to the local completing dial sate CLECs—like Core—for change carrier 1996, anof Internet service In telephone number their customers’ calls to ISPs. (ISP), connects the however, “recipro- which then provider the FCC construed the the ISP Typically, Internet. call to the compensation arrangements” provision cal ILEC, in- 251(b)(5) to but does not subscribe §of to traffic “apply only to com- to another LEC—a stead subscribes a local originates terminates within (CLEC)— exchange carrier petitive local Implementation area.” the Local Com- of with the incumbent. interconnects petition Provisions in the Telecommuni- up dials Accordingly, a consumer who 1996, 15,499, Red cations Act 11 FCC of usually obligates originat- ¶ an (1996). the Internet 16,013, 1034, 1996 WL 452885 CLEC, transfer the call to a ing ILEC Ruling, in its 1999 Declaratory And the ISP. which then delivers call to dial-up Commission concluded that calls to id. at 270. Core is a CLEC. See an for connection the Internet are ISP 251(b)(5) non-local, inap- § and thus that is paid for at the center How this call is plicable. Implementation the Local dispute of with the FCC. Section Core’s of Competition Provisions in the Telecom- 251(b)(5) Act of of the Communications 1996, Act Inter-Carrier munications 1934, by amended the Telecommunica- of Traffic, 14 Compensation ISP-Bound 1996, requires to “es- tions Act of LECs 3689, FCC Red 1999 WL 98037 compensation arrange- reciprocal tablish Instead, (“Declaratory Ruling”). of transport and termination ments for the concluded that calls con- FCC ISP-bound 47 U.S.C. telecommunications.” traffic, subject interstate to FCC stitute 251(b)(5). reciprocal compen- § Under jurisdiction § under 201 of the Act.1 See of arrangement, sation a customer “[w]hen Competition Local Implementation a local carrier A makes call to customer in the Act Provisions Telecommunications B, carrier B its facili- carrier uses 1996, Compensation Intercarrier connect, ‘terminate,’ or that call to ties to Trafic, FCC Red ISP-Bound customer, the carrier ‘originating’ its own (2001) (“ISP 9152, ¶1, 2001 WL 455869 ordinarily required compensate A is Order”) Declara- (construing Remand ‘terminating’ carrier B for the of carri- use Ruling). FCC, tory er Inc. B’s facilities.” SBC v. (3d Cir.2005) (citing F.3d Global In March court held FCC,

NAPs, Inc. v. its explained Declara inadequately (D.C.Cir.2001)); In see re traffic is determination ISP-bound at 270. FCC, See Bell Atl. Tel. Cos. non-local. The If traffic governed ISP-bound were said, 251(b)(5), explana- ar- failed to an reciprocal compensation “provide had interest, to provides, part: essary public desirable 1. Section 201 relevant in the charges applicable thereto and (a) establish ... duty every common It shall be charges.... engaged of such in interstate ... communi- the divisions carrier (b) wire or such charges cation radio to furnish ... All for and in connection service, upon service re- communication reasonable shall with such communication therefor; and, in quest accordance with reasonable.... where orders of the in cases U.S.C. action nec- the Commission finds such why inquiry is rele- sought [end-to-end] FCC next “to establish an th[e] discerning appropriate recovery vant to whether a call to ISP cost mechanism for delivery the local call model ... or should fit within of this traffic.” [ISP-bound] Id. ¶ long-distance model.” Id. at 5. We The Commission concluded Declaratory and remanded the existing vacated “the intercarrier compensa- directing justify ..., Ruling, tion mechanism originat- which the pays determination. the carrier that serves the ISP, opportunities has created for regula- responded our deci tory arbitrage and distorted the economic sion Bell Atlantic with the ISP Remand competitive entry incentives related to into again, Order. Once the Commission con the exchange exchange local and access cluded that calls delivered to are not ISPs ¶2. markets.” Id. at And it an- subject compensation reciprocal to the ob issuing—in nounced that it was tandem 251(b)(5). ligations §of See ISP Remand with its ISP Remand Order—a notice of ¶ Order, 16 FCC Red at 3. But this proposed rulemaking to consider whether time, rather than base conclusion on the Commission replace existing should in- that determination ISP-bound calls are tercarrier compensation schemes with a subject non-local and hence not Id.; “bill-and-keep” regime. see Notice of 251(b)(5), § the Commission relied on a Proposed Rulemaking, Developing a Uni- section, different 47 U.S.C. Intercarrier Compensation Regime, fied ¶ § 251(g).2 See id. at 1. According 16 FCC Red 2001 WL 455872 FCC, § 251(g) the was to ex intended (“NPRM”). Under such a regime, “nei- of traffic clude kinds enumerated in ther of two interconnecting networks subsection, that specifically “exchange ac charges the terminating other for traffic cess, access, exchange information and ser originates on the other network. In- access,” vices for such from reciprocal stead, each network recovers [its costs] 251(b)(5). compensation requirement §of from its own end-users.” ISP Remand ¶ 9166-67, (quoting § Id. at 251(g)). Order, Thus, 16 FCC Red at 9153 n. 6. And it found that calls made to ISPs locat typical above, scenario discussed ed within the caller’s local calling area fall originating ILEC would recover its costs within those categories—spe- enumerated call, customer who initiated the spe cifically, they constitute “information while the CLEC would recover its costs ¶42. calls, at access.” Id. Those from the ISP customer to which it deliv- concluded, subject are thus not ered the call. 251(b)(5), § subject but are instead § regulatory authority FCC’s under 201. Although the FCC issued the NPRM ¶ ¶ 9152-53, 1; 9165, 30; See id. at id. at looking toward a bill-and-keep regime, the ¶¶ 9175-81, id. at 52-65. “pru- nonetheless deemed it 251(g) provides, 2. part: gations Section (including relevant receipt compensa- tion) apply to such carrier on the [the On and after date of enactment of 1996], immediately date preceding date [the Telecommunications Act of exchange regulation, pro- enactment] each local under ... shall or- der, access, access, exchange policy vide information until exchange obligations such services for such restrictions and access to ex- interexchange plicitly superseded by regulations carriers pre- information providers service in accordance with the scribed the Commission after date [the equal nondiscriminatory same access and of enactment]. interconnection 251(g). § restrictions obli- 47 U.S.C. WorldCom, FCC, immediately “to a new Inc. 288 F.3d 429 not switch dent” upset regime that would (D.C.Cir.2002), compensation we reviewed Re- the ISP of carriers expectations business legitimate opinion, mand May Order. Our issued on ¶ It Id. at and their customers.” 3, 2002, rejected the FCC’s conclusion interim intercarrier adopted “an therefore § 251(g) authorizes it to carve out ISP- regime for ISP-bound traffic requirement bound calls from end, limit, the oppor- if not that serves 251(b)(5). id. at 430. “Because arbitrage, while tunity regulatory simply section worded a transitional ‘flash market-disruptive cut’ to avoiding device,” held, rely we cannot Id. at regime.” bill and 9186- pure keep § 251(g) to exclude ISP-bound calls ¶ regime, 87, 77. 251(b)(5). scope Id. Section said, govern compensa- intercarrier “will 251(g), provide not said “does a basis until we have for ISP-bound traffic Commission’s action.” Id. at 434. in the intercarri- resolved issues raised ” ¶ compensation NPRM. er however, time, This vacate did not “a According to the this would be the FCC’s order. Nor did we “address compensa- interim intercarrier three-year petitioners’ attacks on pro- various interim exchange of mechanism for the ISP- by the visions devised Commission.” Id. ¶ 9199, (emphasis traffic.” Id. at bound Instead, thought because we added). might there “well be other bases for regime pro- has four The FCC’s interim adopting the rules chosen the Commis- to Core. Of particularly relevant visions origi- for compensation sion between the these, are the “rate important the most nating terminating and the in calls LECs gradually which establish a declin- caps,” ISPs,” merely to remanded to the (typically, maximum rate that a carrier ing proceedings, Commission for further thus CLEC) carrier charge (typi- can another Id.; leaving interim rules effect. ILEC) delivering a call to an cally, an for id. at see 434. ¶ 9187, adjunct at As an to 78. ISP. also caps, rate estab- Commission au- The Telecommunications Act of 1996 rule,” provides which “mirroring lished carrier to any thorizes telecommunications rate traffic caps on ISP-bound petition apply- to “forbear from the FCC only if also to apply the ILEC offers any provision” of the regulation capped same rate to charge CLEC the 160(a). 2003, July On Act. 47 U.S.C. originates local traffic that terminate asking petition filed a the FCC Core ¶ 9193-94, network. Id. at the CLEC’s the four interim applying forbear two provisions “growth The other On provisions of the ISP Remand Order. a limit on total impose which caps,” 8, 2004, granted October for minutes which a number ISP-bound and petition part Core’s denied compensa- can receive intercarrier part. granted request FCC rule,” tion, “new which de- and a markets enforcing caps the growth forbear from ISP- nies intercarrier rule, new but Core’s and markets denied the carrier bound traffic markets where caps to the and petition respect with rate exchanging pursuant traffic was “not mirroring sought then review rale. Core prior to agreement[] interconnection [an] court, us to asking in this reverse ¶ 86; Id. at adoption” Order. petition ¶ of its for for- partial FCC’s denial 9188-89, generally at In re id. Core, request and at bearance. We denied Core’s 273-74. (Mar. 4, the Commission’s decision. In re

upheld Supp. Report FCC.” Status at 1 2005). 275-80.3 Based on the representa- FCC’s tions regarding the draft order Meanwhile, the FCC still had not re- FNPRM, pe- we denied Core’s mandamus sponded to the WorldCom remand. in May prejudice tition “without after two passed June had refiling in significant the event of addition- response, petitioned without a Core this Commc’ns, Inc., delay.” al In re Core No. court for a writ of mandamus. In its (D.C.Cir. 2005). May 24, August response, argued premature that mandamus was because later, year A in April there was no recently completed staff “Commission word from the FCC on the fate of the forwarded to the Chairman of the draft WorldCom order release of addressing draft order the WorldCom re- permanent in response Resp. mand.” of FCC to Pet. for ofWrit FNPRM. Core then filed a second for (Aug. Mandamus at 1 It further bearance with the argued was “not long as again asking, among other things, for the egregious delays historically have (remain FCC to forbear from applying the been found warrant mandamus relief.” ing) interim rules that carve out ISP- (internal quotation Id. at 11 marks omit- bound traffic obligation pay ted). “When Court has found the reciprocal compensation. The Commission remedy appropriate,” mandamus to be rejected petition, Core’s Petition stated, “it generally has been con- Communications, Inc. Forbearance delays fronted with of at least three 251(g) Sections 251(g) and the of years.” Id. Communications Act and Implementing response, Based on this we deferred Rules, 14,118, 22 FCC Red 2007 WL consideration mandamus (2007),4 and Core appealed has us, the and directed FCC to advise at 90- that decision. currently The case is on intervals, day progress “of its in respond- this circuit’s docket. ing the remand in to WorldCom.” In re Commc’ns, Inc., October Core filed its second Core No. 04-1179 (D.C.Cir. Nov.22, petition, mandamus which is now before On March us. It asks that reported compel FCC counsel that the the Com- FCC to order, enter an days, mission had a within 60 responding released “Further No- tice to our Proposed of WorldCom Rulemaking explana- remand with an [FNPRM] the Compensation Intercarrier tion of the docket in basis for the rules that which it seeking, has been exclude among other ISP-bound calls from recipro- things, adopt permanent cal requirement rules to suc- of 251(b)(5). ceed § the interim intercarrier compensation requests Core further that regime for Internet-bound traffic that this we vacate those rules if the FCC does not WorldCom, Court reviewed Inc. v. issue such an order. opinion, that, 3. In the same stating also denied a re- if "the Commission were to for- quest by group a of ILECs to reverse bear regulation preserved from the rate partial grant pe- FCC's of Core’s forbearance 251(g), section regula- there would be no rate tition. In re 455 F.3d at 280-83. governing exchange tion of traffic current- ly subject charge regime.” to the access disagreed The FCC also with Core's conten- 14,126, ¶ FCC Red at tion that forbearance would return ISP-bound reciprocal compensation regime, traffic to a fac- analysis. cautioned that those We

II “ironclad,” are tors are not but rather a of mandamus seeks writ provide guidance intended to “useful Act, All 28 U.S.C. under Writs TRAC, assessing agency delay.” claims of 1651(a), action unlaw “compel agency § impor- 750 F.2d The first and most delayed,” unreasonably or fully withheld factor “the time take agencies tant is that 706(1) (Administrative Procedure U.S.C. governed by a to make must decisions Act). jurisdiction court’s authori This ” remaining ‘rule of Id. The five reason.’ undisputed.5 that request ty grant are: mandamus peti of consideration Our (2) has Congress provided where premise that issuance “starts or other indication of the timetable extraordinary remedy, the writ is of expects agency speed with which only transparent most reserved statute, enabling proceed in the duty to act.” In re of clear violations may supply content for scheme Network, Bluewater (3) reason; delays might this rule is, course, There sphere in the be reasonable of economic “clear duty” has a doubt hu- regulation are less tolerable when “In our remand. respond to WorldCom (4) stake; man welfare health and are at inaction,” however, agency “we case of the court should consider the effect satisfy must ourselves there not action ac- delayed agency expediting duty, such but that indeed exists higher competing priority; tivities of a ‘unreasonably delayed’ con agency (5) the also into ac- court should take (quoting action.” templated U.S.C. inter- count the nature extent of the 706(1)). evaluat question central by delay; prejudiced ests is delay” “a claim unreasonable any impropriety not “find need egre is so agency’s “whether lurking agency lassitude in order behind as to warrant mandamus.” Telecom gious hold action ‘unreason- agency ” & Action Ctr. v. munications Research ably delayed.’ (D.C.Cir. (“TRAC”), 70, 79 In re Mine Am. Int’l United Workers of 1984). question below. We consider Union, 545, (D.C.Cir.1999) F.3d 549 190 80). TRAC, at 750 F.2d (quoting A dutifully ad- Both Core and per long rule as to “There is se how individually, dress the TRAC factors six In long agency too to wait for action.” drawing is different conclusions. party each 19-27; Rivers But re American Rivers & Idaho Unit- Pet’r Br. FCC Br. 13-23. See 413, (D.C.Cir.2004). ed, unimportant In factors are not 372 F.3d 419 while those here, TRAC, begin by noting we factors relevant to must we outlined six United, F.3d & Rivers & Idaho Rivers 372 5. See Telecommunications Research Action Network, (D.C.Cir.2004); (“TRAC”), re 414 In Bluewater v. FCC 750 F.2d 75 Ctr. (D.C.Cir.2000); 1984) re (D.C.Cir. statutory In 1315 commitment C'[T]he Union, 190 Ap Am. Int’l to the Court United Workers of review of action Mine (D.C.Cir. generally peals, conjunction with the All Writs 549 read 1651(a) ("The Act, Supreme Court jurisdiction this over claims U.S.C. affords (citation Congress by delay.” and all established Act of courts of unreasonable Commission omitted)); necessary may appropriate (“Congress at has issue all writs id. instructed jurisdictions respective compel agency in aid review to ac of their courts delayed. agreeable usages principles of unreasonably has to tion that been law.”). 706(1).”); In re American U.S.C. see also ehallenge of this procedural posture case is different to the lawfulness of railroad of this circuit’s from that of most unrea- freight charges. Five earlier we had TRAC, delay and all of the sonable cases. challenge remanded to PEPCO’s the Com- parties that employ cases cited consideration, mission for further in re- delay by methodology, agencies involved in sponse to reopened which the Commission rulemakings own or in concluding their the proceedings, began then an entirely by private parties responding requests to hearing, reopened new pro- and then prob- to take administrative action.6 The ceedings again. Relying 1029-30. lem that confronts us here is different. In on “our power inherent to construe the case, agency’s this faced with the decision,” mandate of our earlier we re- years—to respond failure—for six to our viewed “question whether PEPCO’s doing, In agency own remand. so right timely to a decision the Com- effectively nullified our determination that mission violated.” ha[d] been Id. at 1032. invalid, its interim rules are because our We concluded it had. Noting left remand without vacatur those rules in “[a]gain and again Commission has Moreover, place. until the FCC states its promised matter, expedite but with- explanation for its a final out delivering,” we ordered the Commis- order, cannot mount a challenge sion reach a final decision on PEPCO’s way, those rules. In this the FCC insu- challenge days. within 60 Id. at 1035. lates of our its nullification decision from precedent The second is Radio-Televi- further But a federal review. court has sion News Directors Ass’n v. authority to issue a writ of mandamus to (D.C.Cir.2000), F.3d 269 a case that cites “prevent the frustration of previ- orders TRAC but does address not its six ously Elec. factors issued.” Potomac Power Co. v. (“PEPCO”), individually. ICC See id. Radio-Tele- “[bjecause began challenge vision a And the statu- to the FCC’s tory a obligation personal political of Court of Appeals rules, attack and editorial may review on the merits subject defeated which had been the of a agency an that fails to disputes, resolve rescind since the Commis- may Circuit resolve Court claims of vote) unrea- sion (by equally decided divided protect sonable order its future rules, repeal not to but it offered no TRAC, jurisdiction.” 76; 750 F.2d at see justification affirmative for that decision. Rivers, (“[T]he American 372 F.3d at “[wjithout appeal that, On held primary purpose of the writ in circum- explanation rules, clear for the the court stances like is these to ensure that an in position not they to review whether agency does not juris- [the thwart court’s] continue public to serve the interest.” Ra- by withholding diction a reviewable deci- FCC, dio-Television Dirs. News Ass’n v. sion.”). (D.C.Cir.1999). 184 F.3d “Ac- cordingly,

Two rather than precedents enjoining deci enforce- most relevant to our disposition existing ment of of this case. The rules the might first is PEP- CO, a pre-TRAC justify,” F.2d able to we case in “remand[ed] the which we held that the ICC had unreason- ease for the explain further its ably delayed disposition the of PEPCO’s decision not repeal modify them.” See, Rivers, e.g., 413; 6. Labor, ing American 372 F.3d & Department Health v. 100 F.3d Council, Mashpee Wampanoag (D.C.Cir.1996); Labs., Tribal Inc. v. re In Barr 930 F.2d Norton, (D.C.Cir.2003); (D.C.Cir.1991); 336 F.3d 1094 United re In Monroe Commc’ns Workers, 545; Mine Corp., 190 F.3d Action on Smok- 840 F.2d 942 “in a did in and Radio-Television—to That, said, the court PEPCO put we would Id. rules it has articulated enforce for which the FCC’s rationale” to test position PEPCO, we no lawful basis. In issued the challenge be made to “a further should respond failed to to our Id. writ when ICC remand.” FCC’s decision on years. remand within five Radio-Tele- later, the FCC taken had Nine months vision, we did Radio-Tele when the FCC failed to action, a petitioners peti- filed and within nine months.7 respond responded The FCC tion for mandamus. temporarily suspend- by issuing an order above, As noted the first TRAC factor is order, days. That for 60 make that “the take to agencies time deci- held, to the court’s responsive was “not by a ‘rule of governed sions must be rea- ” Radio-Television, 229 at remand.” TRAC, at 80. son.’ PEPCO justification for It provide did not clear and make Radio-Television rules, “simply effect of ha[d] and our delay responding in to World- FCC’s by a final decision further postponing reasonable, anything remand but Com is court Noting Id. “[t]he Commission.” Indeed, here. and that factor is decisive opportunities for repeated has afforded delays we have several times found similar action,” final to take requests unreasonable when the even suggesting to the “[djespite filings parties. came For private action from ex- happen, would something court that in MCI ample, Corp. Telecommunications nothing has done again, once (D.C.Cir.1980), F.2d 322 of which it has cure deficiencies “rule of which TRAC derived its reason” aware,” “a we issued writ long been standard, four-year we found the FCC’s im- directing the Commission mandamus just and delay determining in reasonable mediately personal attack repeal tariff to be unreasonable. And rules.” Id. at 272. political editorial Rivers, in we found that American responding years FERC’s of six between PEPCO The similarities than “nothing egre- to a less was hand, on the one and Radio-Television at 419.8 gious.” 372 F.3d other, are clear. It is and this case on the factor, the fifth TRAC it In the words of put since the FCC years now seven “preju- been also clear that Core has rules that said would is place interim TRAC, 750 F.2d at 80. delay.” diced It is now six since last three. held, time, years—since the ISP Remand the For seven for the second established the rules—Core justification for the rules was Order FCC’s that it subject caps to rate esti- for the to has been agency invalid remanded “result in rates 300-400% lower all mates justification. During provide valid 251(b)(5) intercarrier com- time, proceeded—as it than other this give judgment Although remand Radio-Television our forthwith effect" added)). expressly (emphasis that "the FCC need act had stated expeditiously,” timeliness court, implicit every remand see Ass’n, Int’l v. Civil 8. See also Air Line Pilots PEPCO, ("[0]ur in F.2d at 1034 remand 81, Bd., (D.C.Cir. Aeronautics implicitly in- appeal to this court the earlier 1984) delay five-year (finding a unreason understanding that cluded Commis- able); Group v. Health Research Public Citizen respond our mandate in a sion would (D.C.Cir. Auchter, 1150, 1157-59 402(h) manner.”); timely 47 U.S.C. cf. 1983) three-year (finding a unreason court, that, (providing remand from this able). duty "it shall of the Commission be the rates.” Pet’r Br. 14. It pensation has and ordered reports. status subject caps to those In its March notwithstanding report, been 2005 status further only- has found invalid advised that it had that this court issued a Proposed “Further Notice of Rulemaking the FCC has basis articulated to in the Compensation Intercarrier docket support suggests them. The FCC’s brief seeking, which has been among other urgency that Core’s concerns have less things, adopt permanent rules to suc- “[ijncreasingly, because end users are not ceed the interim intercarrier using dial-up connections to connect to the regime for Internet-bound traffic that this Internet, but, rather, modem, DSL, cable WorldCom, Court reviewed in Inc. v. platforms.” and other broadband (Mar. Supp. 4, Report FCC.” Status at 1 omitted). (emphasis Br. 17 Perhaps this 2005). inspection, On further it appears makes urgent Core’s concerns less question FNPRM in contained FCC, but it urgent makes them less only single, a footnote reference to the below, Core. As discussed in Part II.B WorldCom order: “In proceeding, seeking only Core is relief not for the hopes compen- to address the future, period but for the since when regime sation types traffic, for all in- dial-up to the Internet yet access was not cluding ISP-bound traffic.” Further No- as outmoded as the slide rule. Proposed tice Rulemaking, Developing urges stay The FCC us to our hand until a Compensation Intercarrier Re- Unified ongoing conclusion of its rulemaking gime, FCC Red 4694 n. proceeding considering “in which it is com- added). (emphasis WL 495087 prehensive, industry-wide reforms to the Nonetheless, on hope we denied the system compensation.” intercarrier petition, “without prejudice refiling FCC Br. 1. broad rulemaking,” “[T]his significant the event of delay.” additional told, “will, among things, other address 2005). In re No. (May 24, raised issues this Court’s remand in later, More than years three “sig- when WorldCom, Indeed, Inc. v. FCC.” Id. coun- nificant delay” additional had indeed tran- sel suggests that the Commission is on the spired, Core filed the petition. instant concluding brink of rulemaking and re- Then, one day business before we heard sponding to our remand. We have heard argument case, oral in this FCC counsel this refrain before. informed us that the Commission had is- ago, April Seven the Com- sued an order adopting an interim cap on mission issued NPRM that announced support that certain telecommunica- promulgate its intention to comprehen- tions carriers can receive from the Univer- regime sive to supersede what it said sal Service Fund. Quoting press release only “three-year” would be interim re- from the Competition FCC’s Wireline Bu- “ gime under the ISP Remand Order. See reau calling the order ‘a crucial step’ first NPRM, 16 FCC Red 9610. In August ‘comprehensive toward reform’ not response to Core’s first mandamus Universal Service but also of intercarrier petition, the FCC advised us that “Com- compensation,” counsel stated: “Now that recently mission completed staff and for- the Commission capped payments warded to the Chairman of the FCC a fund, the Commission can ‘move addressing draft order the WorldCom re- forward expeditiously on comprehensive Resp. mand.” of FCC to Pet. for Writ of reform’ of compensation.” intercarrier (Aug. at 1 Mandamus In light Letter, 28(j) FCC Rule May (quot- advice, of this we deferred Release, consideration of Press Interim Cap unsupported pending been found the issu- Comprehensive Reform Path Clears 2008)). “comprehensive ance of procedures”: But the Commission order (May not “[TJhere touts does men- must be some limit to the time press the release unjustified of intercarrier tariffs under the law can re- comprehensive reform Otherwise, in specific let the main prob- regulato- alone effect.... the compensation, Rather, ry it has Congress traffic. refers scheme crafted becomes lem of ISP-bound high-cost at “comprehensive reform of anarchic....” 627 F.2d are only to 325. We also, High-Cost always, “acutely lim- support.” universal service aware of the of our Support, competence Service Commc’ns its institutional [a] Universal ¶ F) (P 1, 3, 4, area,” highly Canyon 2008 WL 1930572 technical Air Reg. & Grand (2008). event, FAA, any it is now too Tour And far Coal. v. (D.C.Cir.1998), taking to be and loath to with

late for “interfere processes,” even if it a “crucial” one. internal step,” agency’s “first is United Workers, Mine F.3d at 553. But what day argument, of oral FCC On the asks neither us to do is technical nor another declaration yet made last-minute intrusive. not Core does ask the FCC to action. informed the of imminent Counsel promulgate any particular policy; rule or time—that the court—for first Chair- it asks Commission state him the FCC had authorized to man of legal authority for the rule that current fully that “the intends represent Chairman right refuses to reciprocal Core the com- everything respond he can to to do pensation. the FCC au- Either has such within six months.” remand WorldCom thority or not. If the it does FCC believes Arg. Recording at 22:18-23:03. The Oral it should authority, not take six advised, counsel attempt, will Chairman put in writing. its rationale Even comprehensive inter- “achieve broad-based ultimately if the Commission decides to compensation reform within six include traffic in com- a more ISP-bound months,” part would be of “WorldCom scheme, prehensive it still must have statu- representation Id. While this is that.” See, tory authority e.g., to do so. FDA v. welcome, doing “every- the Chairman’s Corp., Brown & Tobacco Williamson suffice, may may he can” not as he thing 120, 161, 120 S.Ct. 146 L.Ed.2d U.S. his to enforce his will on fellow not be able (2000) (“[A]n agency’s administrative event, repre- In Commissioners. always power regulate must not unless enforceable backed sentation grant authority of grounded in a valid point, of writ. At some up by issuance now Congress.”). Stating rationale enough, no longer and we promises rule- impede should not FCC’s broader game “administrative must end of making project. Rivers, American keep-away.” B mandamus, granting writ us, in we do second-guess urges the event policy not the FCC’s do reject out- request not mandamus judgment pursue comprehensive solu- Core’s final until this right, to defer a resolution problem compen- tion to the of intercarrier appeal the FCC’s Smoking & circuit rules on Core’s See Action on Health sation. Labor, petition. forbearance 994 denial its second Department MCI, petition, In that Core asked But as we said applying forbear from plea to a similar response appeal, cap compensation. On it to in effect rates that had allow continue argue only intends to not that its retroactive relief as well. In the late petition forbearance should have been 1990s-—-priorto the FCC’s carve-out of it granted” but that was “deemed granted, ISP-bound traffic—Core entered into con- law by operation of because the FCC did with provided tracts various that ILECs deny petition not until after the reciprocal compensation statu- for the ISP-bound passed.. had tory deadline See 47 U.S.C. traffic that Core terminated. The ISP 160(c) § (providing any that forbearance Remand Order capped compensa- Core’s if granted “shall be deemed tion at lower levels. deny” does not within the Core maintains that only grant of a specified period). time Core further in- writ of mandamus will make it by whole that, argue consequence,' tends to making retroactive relief available. If we compensation for ISP-bound traffic is no compel legal justifica- the FCC to state its longer governed by the interim intercarri- rules, justi- for the interim if that rules, compensation er but is gov- instead invalid, fication is not forthcoming or is 251(b)(5)’s by reciprocal erned compen- will vacate those argues rules. Core regime. sation this will mean there never was lawful Although the justification Commission believes for the caps compensa- on its position i.e., Core’s lacks merit and intends to tion: that “the FCC has enforced an oppose appeal of the denial of forbear- ultra compensation regime vires since ance, argues counsel we should result, 2001.” Pet’r Br. Reply And contends, defer consideration of mandamus until that Core will entitle it to retroactive appeal prevail is decided. If Core were to compensation under its pre-existing con- appeal, argues, its forbearance counsel tracts with the ILECs. FCC counsel does longer apply contention, Commission could no deny not saying only that rules and “very Core’s it is a complex question ... which I problem would be solved. Because man- really speak can’t Arg. to.” Oral Record- extraordinary remedy, damus is an avail- ing at 20:33. We thus cannot conclude party able if a has “no adequate other appeal Core’s of the FCC’s denial of desires,” means to attain the relief [it] forbearance an adequate offers alternative Inc., Corp. Daiflon, Allied Chem. 449 means of attaining the relief Core desires. 33, 35, U.S. 101 S.Ct. 66 L.Ed.2d 193 We also note that the resolution of an (1980), the FCC contends that we should appeal from the FCC’s denial of forbear- not issuing consider the writ unless and regarding ance the interim compensation until the alternative of a forbearance ap- rules will not vindicate this court’s own peal is foreclosed. interest in seeing that its mandate is hon- appeal

But Core’s of the denial of for- ored. That mandate was to explain the adequate bearance is not an means to at- basis for those rules so that their tain the relief it seeks. explains, As Core validity ultimately could be evaluated. An only prospective forbearance offers appeal relief: forbearance, from the denial forbearance ap- contrast, Commission “from looks the reasonableness of the plying” the interim rules in the future. 47 FCC’s determination of quite three differ- 160(a). Core, however, U.S.C. seeks ent issues.9 The point additional Core in- 9. The requires Telecommunications Act munications carrier or telecommunications applying any FCC to “forbear service” regulation if it determines that: any provision or [of the Act] to telecom- regulation pro- enforcement of such necessary vision is not to ensure that the that the raise, must be When we concluded WorldCom its that tends invalid, second rationale was also FCC’s to 47 U.S.C. pursuant granted” “deemed authority again. had to vacate plainly we 160(c), unrelated to § is likewise (stating 5 U.S.C. that a review- inter- its interim legal authority for FCC’s action agency court shall “set aside” compensation scheme. statutory jurisdic- to be “in of found excess limitations, tion, authority, of or or short C statutory right”); Allied-Signal, see also question only the remains There Comm’n, Regulatory v. U.S. Nuclear Inc. that we will issue. writ content In- promul- FCC to us to direct the Core asks remand, stead, believing we chose explains gate an order that that there was a “non-trivial likelihood” rules, its and to va- authority for interim that the Commission would be able to state not issue those rules if the FCC does cate legal its a valid basis for rules. World- days. Although order within 60 such an Com, 434; Allied-Signal, 288 F.3d at see a dead- impose 60-day us urges that, (noting F.2d at 151 there is when a line, obtaining fixed dead- it is clear that possibility that “serious Arg. foremost concern. Oral line is Core’s able decision on will be substantiate its Recording at 28:56-29:35. remand,” may remand without vacat- above, stave time, noted effort to prompt As we This there was no re- ing). represent- request, promises FCC counsel six sponse—only off Core’s in- delay. the Commission’s Chairman ed that further intercarri- comprehensive to achieve tends mistakenly, Having repeatedly, put months. compensation reform within six er faith in we will not do our reform, advised, in- counsel would Such cannot, If within six again. so the FCC re- response to our WorldCom clude a months, explain legal authority for the the Chairman a give We will mand. rules, only presume that we can schedule, to meet and will chance is in no such this is because there fact explana- the Commission to issue its direct conditions, authority. those vacatur Under 5, 2008—six months November Allied-Signal, 988 F.2d is indicated. See day representation was Accordingly, the rules will be at 150-51. made. 6, 2008, unless vacated November that the Commission has notified Core, however, with that this agree We complied with our direction before de- the end of the Commission’s must be date. lay. The first time we determined invalid, for the was in Bell rationale Ill

Atlantic, we as well as remanded. vacated reasons, grant the year, foregoing than a For the F.3d at 9. In less and direct the FCC new with a new rationale. writ of mandamus order issued (3) applying provi- such regulations ... in connection with that forbearance regulation carrier or telecommu- with the telecommunications sion or is consistent and reasonable nications service public interest. unjustly unreasonably are not or dis- 160(a); In re 47 U.S.C. see criminatory; regulation pro- enforcement of such necessary protection is not vision consumers; and such.”); Daugirdas, remand treat it as to our WorldCom Kristina respond Note, response Evaluating That must Remand Without Vaca November final, appealable Remedy order tur: A New Judicial the form of be in Defective authority for the explains Agency Rulemakings, REV. N.Y.U.L. 278, compen- (describing interim intercarrier 301-05 of instances Commission’s delay). traffic multi-year Today’s rules that exclude ISP-bound is a sation decision require- reciprocal compensation point. waiting case After vain from 251(b)(5). of respond No extensions this FCC to its own ment of WorldCom of volition, granted. will be The rules are we are forced to deadline resort 6, 2008, “extraordinary un- hereby remedy” vacated on November of mandamus compel agency the court is notified that Commis- to act. less In re Bluewater Network, 1305, (D.C.Cir. before 234 complied with our direction F.3d 1315 sion join panel today’s date. This of the will I break decision to jurisdiction big stick, over case to ensure hope retain out the I in the but MCI, compliance greater with our decision. future we will take to avoid care putting 627 F.2d at 325. doing ourselves situations where necessary. so is ordered. So In writing separately, I address do not GRIFFITH, Judge, concurring: Circuit disputed legality of without remand join opinion. I the court’s well-reasoned vacatur under the Proce Administrative today’s circumstances that occasion The 706(2)(A). Act, dure 5 Compare U.S.C. question decision lead me to the wisdom of SEC, 452, v. Checkosky 23 F.3d 462-66 vacatur. open-ended remand without (D.C.Cir.1994) (separate opinion of Silber- WorldCom, opted Inc. v. man, J.) lawful), (declaring practice remedy concluding after such and Cane Sugar Growers Vene Co-op. v. Communications Commission Federal man, (D.C.Cir.2002) 89, F.3d 289 98 (“FCC”) had issued an order without es- (same), Checkosky, with 23 F.3d at 490-93 tablishing authorization. 288 (declar J.) (separate opinion Randolph, (D.C.Cir.2002). 429, The F.3d ing practice unlawful), Milk request explana- ignored our for a better Train, Veneman, v. Inc. 310 F.3d statutory authority, tion of its and six (D.C.Cir.2002) (Sentelle, J., dissenting) up later we are forced to clean (same). simply urge I panels future helped mess we create. There is a lesson consider the open-ended alternatives to the here. See, remand without vacatur. A.L. e.g., Pharma, Remand Shalala, without vacatur is common in Inc. v. 62 F.3d circuit, (D.C.Cir.1995) especially decision in this after our without (remanding Allied-Signal, Regu- Inc. v. Nuclear ordering U.S. vacatur but a rule auto “vacated latory 988 F.2d 150-51 matically” adequate justification absent experience suggests But agency days); Rodway within 90 remedy agency USDA, (D.C.Cir. that this invites sometimes 514 F.2d 817-18 1975) indifference. See Natural Res. Coun- (remanding without but vacatur or Def. EPA, cil v. 1262-64 dering “completion the new rule-mak of] (D.C.Cir.2007) J., (Randolph, concurring) within process days of the issuance (“A effect, remand-only is, in disposition opinion”); Cement Recycling Kiln stay (D.C.Cir. indefinite effectiveness the Coal. v. EPA 2001) curiam) court’s agencies naturally decision and (per (vacating regulations “a inviting motion issuance but Int’l, mandate”); Inc. v. Honeywell (D.C.Cir.

EPA (“It 2004) J., concurring) (Randolph,

easy forget that when vacate

remand, here, doing there will as we are safety agency,

be a valve. side, op will have the

intervenors on its motions post-decision file

portunity

demonstrating why an unlawful order during pro in place

rule should remain remand.”) Tel.

ceedings (citing U.S. (D.C.Cir. v.

Ass’n

1999)). INTERNATIONAL,

ALIRON Appellant

INC., INDUSTRIES, NATION

CHEROKEE

INC., Appellee. 06-7130.

No. of Appeals,

United States Court

District of Columbia Circuit. Dec.

Argued July

Decided

Case Details

Case Name: In Re Core Communications, Inc.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 8, 2008

Citation: 531 F.3d 849

Docket Number: 07-1446

Court Abbreviation: D.C. Cir.