*1 CORP. v. AMERICAN MCI TELECOMMUNICATIONS CO. & TELEGRAPH TELEPHONE 17, 1994* 21, 1994 June March Argued No. 93-356. Decided 93-521, United et al. v. American Tele with No. States *Together al., et on to the same court. phone & Co. also certiorari Telegraph *2 Scalia, J., Rehnquist, opinion Court, in delivered the J., JJ., C. Thomas, J., Kennedy, Ginsburg, joined. Stevens, and and JJ., dissenting opinion, Souter, filed a joined, which Blackmun and J., post, p. O’Connor, part 235. took no in the consideration or decision cases. Christopher Wright J. for the the cause federal argued Solicitor General on With him the brief petitioners. were Days, Attorney Bingaman, Deputy Assistant General and Solicitor Verrilli, Jr., General Wallace. Donald B. argued the cause for in No. With him petitioner 93-356. on the Salsbury, T. Kamin, Chester H. Michael An- briefs were thony Epstein, B. Morris, Jr., John Donald Elardo, J. Krogh, Frank and Richard G. Taranto. W Carpenter David W. for argued the cause respondents both cases. With him on the brief for respondent American Merrill, W. Thomas Peter Telephone & were Co. Telegraph Joseph Kearney, Keisler, D. D. Rosenblum, Mark C. and Langhauser. John J. Leon M. Kestenbaum, Michael B. Fingerhut, Theodore Case Whitehouse, and W. Theodore Pierson, Jr., brief filed a Communi respondent Sprint al.† cations Co. L. P. et †Briefs urging of amici curiae reversal filed for were International Business Corporation by Machines T. Roger Wollenberg, Lake, William T. II,
John H. Harwood McCartney; Sheila for the California Bankers Clearing Levine, House Association et Henry Block, al. D. Ellen G. Fletcher, Jr.; Francis E. Wiltel, Inc., and for by David G. Leitch. of the Court. opinion delivered the Scalia
Justice re- Code 203(a) the United States of Title Section with carriers to file tariffs common communications quires 203(b) Commission, the Federal Communications any requirement “modify” the Commission authorizes whether These cases present question §203. for all tariff filing optional to make decision exercise of its is a valid long-distance nondominant authority. modification
I role the American Tele- involving cases Like most (AT&T) in our national tele- Company and Telegraph phone *3 a An un- long history. these have system, communication of the brief review of the cases derstanding requires and then deregulate regulate efforts to created When industry. telecommunications AT&T, integrated 1934, through vertically over the Nation’s tele- held virtual monopoly Bell system, Act of 1934, The Stat. service. Communications phone Commission to amended, regulate authorized the 1064, services to ensure they for communication charged rates The nondiscriminatory. requirements reasonable and were with the carriers file their rates Com- §203 of that common rate and the filed were charge only centerpiece mission Act’s scheme. regulatory reduced the 1970’s, entry advances technological In the of in the market costs for AT&T competitors long- Commission, service. The recognizing distance telephone of greater regulations the feasibility competition, passed in the 1979, entry. By competition facilitate competitive established, was and of service well long-distance provision tariff fil- some the continuation extensive urged costs impose unnecessary served ing requirements only The on new entrants and to facilitate collusive pricing. Competitive see matter, Commission held on the hearings Carrier Notice and Inquiry Proposed Rulemaking, 2d 308 (1979), F. C. C. which it issued a series of following that have rules this produced litigation. Report
The First and Order, 1,20-24 (1980), 85 F. C. C. 2d (those between dominant carriers market distinguished with and nondominant carriers —in the mar power) long-distance ket, this amounted to a distinction between AT&T and every one else —and relaxed some of the for non- filing procedures Report id., In the Second and dominant carriers, at 30-49. Order, 91 F. C. C. 2d 59 (1982), the Commission elim entirely inated the filing for resellers of terrestrial com requirement mon carrier services. This policy optional filing, per missive was detariffing, resellers, extended to all other and common specialized carriers, MCI petitioner including Report Order, Fourth Telecommunications by Corp., (1983),1 F. C. C. 2d 554 and to all cate virtually remaining Report of nondominant gories Fifth Order, 98 F. C. C. 2d 1191 Then, the Com mission shifted to a mandatory detariffing policy, pro See Sixth hibited nondominant carriers from tariffs. filing Report Order, 99 F. C. C. 2d The 1020. United States Court for the Appeals District of Circuit, Columbia how Report’s ever, struck down the Sixth mandatory detariffing in a policy challenge brought as it now ironically —somewhat Corp. by MCI. See MCI Telecommunications appears v. — C., F. J.). F. 2d 1186 (Ginsburg, Court of *4 203(a)’s § reasoned Appeals that command that com “[e]very mon carrier . . . shall. . file” tariffs . was And mandatory. 203(b) although authorizes the Commission to “modify any in the requirement” section, Court of concluded Appeals that that phrase “suggested] circumscribed not, alterations — as the FCC now would it, have wholesale abandonment or Id., elimination of requirement.” at 1192. Report Order, The Third Reg. (1983), 48 Fed. extended the
Competitive Rulemakings Carrier to providing service to domes points tic outside the States, Hawaii, continental United such as Puerto Rico, and the Virgin United States Islands. detariffing mandatory invalidation of of the In the wake of not its continued practice MCI the Court Appeals, services, permissive certain pursuant tariffs for filing Au Fourth and Order. On Report of the detariffing policy third- to the pursuant filed 7, 1989, complaint, AT&T gust Act, of the Communications provision complaint party un collection of that MCI’s 208(a), which alleged U. S. 203(a) (c). responded §§ MCI rates violated ified had rule, and so MCI was a substantive Report the Fourth rejoined to file rates. AT&T no obligation legal and Order was a statement Fourth Report simply did immu not nonenforcement policy, Commission’s if the actions; and that enforcement nize from private MCI rule, it and Order established a substantive Fourth Report did The Commission of statutory authority. in excess was almost ZVz on until complaint take final action AT&T’s MCI See AT&T Communications v. filing. after years (1992). It char Corp., Telecommunications 7 FCC Rcd the Fourth substantive rule Order as a Report acterized that MCI on the ground and dismissed AT&T’s complaint address, It refused to with that rule. compliance was vires, rule was ultra however, AT&T’s contention that to consider that instead a rulemaking announcing proposed Interstate Filing Requirements See question. for Tariff Carriers, Notice 7 FCC Proposed Rulemaking, Common Red 804 alia, inter review, for arguing,
AT&T petitioned to a later rulemaking lacked to defer of an adjudi consideration of an issue which was dispositive The United States Court complaint. Appeals catory for re the District of Circuit granted petition Columbia C., v. F. C. view. See American & Co. Telephone Telegraph J.). (Silberman, 2d 727 The Court Appeals 978 F. its author characterized the failure address as “a sort ity permissive detariffing policy promulgate id., law shell at 731-732. Address- of administrative game,”
223 ing question Appeals itself, the Court concluded detariffing Report permissive policy of the the Fourth by Order was indefensible the 1985 MCI rendered decision: detariffing mandatory, is made Sixth Re “Whether the port, permissive, simply Report, the as in Fourth obligation the are, event, relieved file either tariffs 203(a). step under That exceeds author section the limited 203(b) ity ‘modify’ granted the Commission in section re quirements Appeals Id., of the Act.” 736. The Court then the remanded case so that the could award appropriate id., relief. See at 736-737. We certio denied Corp. rari. MCI Telecommunications v. American Tele (1993). phone Telegraph Co., & U. S.
Moving
dispatch,
with
now
admirable
less than two weeks
by
Appeals concerning
after the decision
the Court of
adjudicatory proceeding,
Report
Commission released
rulemaking proceeding
Order from
commenced
response
complaint.
Filing
to AT&T’s
See In re
Re
Tariff
quirements
Interstate
Carriers,
Common
FCC Rcd
for
(1992),stayed pending
further notice, 7
Red 7989
FCC
(1992).
Report
That is the
and Order at
in this
issue
case.
203(b)
relying upon
authority
The Commission,
“modify”
rejected by
that had
then been twice
the Dis
permissive
trict of Columbia Circuit, determined detariffing policy
was within its
under
Commu
nications Act. AT&T filed a motion with the District of Co
seeking summary
lumbia Circuit
reversal of the Commis
granted
sion’s
unpublished per
order.
motion was
in an
stating:
curiam
[Ameri
order
“The decision of this court in
Telephone Telegraph
can
(1992),]
&
FCC,
Co.v.
F. 2d
conclusively
per
determined that the FCC’s authorization of
203(a)
detariffing
missive
violates Section
of the Communica
App.
tions Act.”
to Pet. for Cert. 2a. Both
MCI
Commission)
(together
United States
petitioned
with the
granted
petitions
certiorari. We
and consolidated them.
II both Act contains the Communications 203 of Section dis- Act the Commission’s of the and rate provisions filed in relevant part: It authority. provides modification puted “(a) display. Filing; public carriers, carrier, connecting except common
“Every as the Commission time such reasonable shall, within and and print file with shall designate, all schedules showing inspection open public keep are or separate, charges joint whether such ..., charges and classifications, regula- practices, showing and charges.... such affecting tions of Commission “(b) schedule; in discretion Changes modify requirements. in the classifi-
“(1) be made charges, No shall change so which have been or cations, practices regulations, and twenty one hundred and after except filed published the public, notice to the Commission days such infor- in such form and contain shall be published regulations prescribe. as the Commission may by mation “(2) in its discretion and for may, The Commission made or shown, requirement by cause modify any good either in particular of this section under the authority cir- order to special instances or by general applicable the Commission cumstances or conditions except notice period specified paragraph may require (1) days. and twenty to be more than one hundred “(c) and rebates. Overcharges or under carrier, unless otherwise provided
“No this shall or participate chapter, engage have been filed such communication unless schedules this accordance with published provisions thereunder; and with the made regulations chapter (1) or demand, collect, no carrier shall receive charge, or less or different for such com- greater compensation munication than the ... in the schedule charges specified (2) then in or refund effect, or remit or means by any any device so or ex- portion charges specified, tend to or facilities in such any person any privileges communication, or or enforce classifications, employ any such regulations, practices affecting charges, except (1988 in such §203 schedule.” U. specified S. C. *7 IV). ed. and Supp. between the on turns the of dispute parties meaning 203(b)(2).
the §in phrase “modify any Petition- requirement” ers it the argue Commission gives to make even basic and fundamental in the changes scheme created that section. We The word disagree. “modify” —like number of other words English the root “mod-” employing from the Latin (deriving word for “measure”), such as “mod- erate,” “modulate,” “modest,” and “modicum” —has a conno- tation of increment or limitation. Virtually every dictionary we are aware of that “to says means to mod- modify” change g., e. Random House Dic- or in minor erately See, fashion. (2d 1987) (“to
tionary 1236 English Language ed. somewhat the form or change qualities of; alter partially; amend”); Webster’s Third New International Dictionary (1981) (“to 1452 make minor in the form or changes structure of: alter without 9 transforming”); Oxford Diction- English (2d 1989) (“[t]o 952 ary ed. make partial changes in; change (an object) of some respect of its to alter or qualities; vary without radical transformation”); Black’s Law Dictionary (6th 1990) (“[t]o alter; ed. change incidental or sub- ordinate features; reduce”). enlarge; extend; amend; limit;
In support their position, petitioners cite dictionary definitions in, contained or derived from, a source, single Webster’s Third New International Dictionary (Webster’s Third), which includes among meanings in.”2 Peti important change make a basic or “to
“modify,” ambiguity sufficient this establishes contend tioners in its acceptance to deference entitle of its in turn approval requires meaning, the broader A. Inc. S. v. See Chevron U detariffing policy. permissive Inc., 837, 467 U. S. Council, Natural Resources Defense must (1984). the courts short, contend they In dictionary defi available among to the choice agency’s defer v. Passenger Railroad nitions, Corporation National citing U. S. Corp., Boston & Maine not for that proposition. Maine does stand But Boston & statutory term whether That case involved question or could mean “demanded as essential” could only “required” In holding that mean “demanded as appropriate.” also to which Chevron was interpretation, latter a permissible owed, did rely exclusively was the opinion deference definitions, but also contextual indica- dictionary upon upon cases, S., present see 503 U. 417-419—which tions, Moreover, see, shall contradict petitioners’ position. as we of “alternative dic- when the Boston & Maine opinion spoke *8 ibid., did refer to what we have definitions,” it not tionary contradicts one whose dictionary suggested meaning here: all It referred to alternative definitions others. virtually 2 Collegiate Dictionary cite Ninth New 763 Petitioners also Webster’s (1991), “modify,” make among which includes its definitions of “to basic give a changes in often to new orientation to or to serve a fundamental might eighth They also have cited the version of Webster’s new end.” Dictionary (1973), definition; Collegiate 739 which contains that same New (1963), Collegiate Dictionary New and Webster’s Seventh 544 which con Dictionary as the same definition Webster’s Third New International tains Dictionaries, quoted Collegiate published by in text. The New Webster’s Company Springfield, Massachusetts, essentially G. & C. Merriam are abridgments Dictionaries, company’s of that Webster’s New International they upon lengthier are those and recite based works. last New upon International, Collegiate to be based Webster’s New Second rather Third, change” than Webster’s does not include “basic or fundamental “modify.” among accepted meanings Collegiate New See Webster’s (6th 1949). Dictionary 541 ed. dictionary (Webster’s within the cited it Third, as happens), only dictionary which was not be represented giving those To the the Court said “these alternatives. contrary, alternative are as old as the interpretations jurisprudence Maryland, Court,” id., McCulloch v. this citing also Webster’s International Wheat. See New (2d 1934); ed. New Shorter Oxford Dictionary English alternatives). both Dictionary (giving Bos- involve, Most cases of verbal statutes as ambiguity ton & Maine did, a selection between alternative accepted shown as such dictionaries. One can en- meanings by many vision a court case does not come to (though immediately mind) to choose between alternative mean- having accepted one of which is so that it has been ings, newly only accepted (Some recorded a must single lexicographer. dictionary have been the first to record the use of very widespread “forecast.”) to mean But what “projection,” example, demand that we an petitioners accept ambiguity creating here is even rarer than that: a set forth in rarity meaning (and, as we single dictionary say, progeny) supplements contained in all other diction- only meaning contradicts one of the but aries, contained in virtu- meanings Indeed, all other contradicts ally dictionaries. one of the alternative contained meanings out-of-step dictionary itself —for as we have observed, Webster’s Third itself de- to connote both fines “modify” (specifically) major change minor It is hard to see (specifically) change. how that has come to mean both “to can be. When the word “modify” and “to in some change it respects” change fundamentally” will in fact mean neither of those It will things. simply mean “to and some adverb change,” will have to be called *9 into service to indicate the or small great of the degree change.
If that is what Webster’s peculiar Third definition means to has suggest happened what petitioners sug- —and to gest by appealing Webster’s Third —we simply disagree.
228 It change. might moderate connotes view, in our
“Modify,” “modi French Revolution to say English be good because nobility only French the status fied” —but and a liter called understatement figure speech there is be unsurprising And it might known sarcasm. device ary release saying House 1972 White press to discover regard with its modifying position Administration “the because only press in the war Vietnam” —but prosecution called Such “spin.” is nowadays what impart tend agents misuse, careless distortions, ignorant or simply intentional for the that Webster’s usage the basis formed must have It is alone, perhaps Third reported.3 Third, and Webster’s 1934, this: In when Communica to add lily gilding time for determin law —the most relevant Act became tions States, see Perrin v. United term’s meaning, a statutory ing was not even yet Third 37, 42-45 444 U. S. —Webster’s all dictionaries our knowledge English To contemplated. those “modify,” including definition of the narrow provided See Webster’s C. Merriam Company. G. & published (2d 1934); ed. Webster’s International Dictionary New 1934). (4th have not the ed. We Dictionary Collegiate the statute intended. doubt that is the meaning slightest indication that itself, the word a further Beyond 203(b)(2) funda- does not authority “modify” contemplate is the sole to that mental changes exception unlikely long-awaited appearance hypothesis. Upon That is an 1961, widely portrayal Webster’s Third was criticized for its of common See, g., Follett, e. Sabotage Springfield, 209 At proper usage. error as (Jan. 1962); Barzun, Dictionary? The lantic 73 What is a American 1963); Macdonald, Unwound, (spring String 38 The Scholar (Mar. 1962). (with 130,156-157 approval example An is its New Yorker give “infer” qualification) “imply”: out of the use of “infer” to mean “5: to (did concerning: part to draw an inference HINT not take reason question inferring except the constitution must be debate to ask a changed Weekly).” Guardian Webster’s Third New Inter —Manchester Dictionary national *10 §203 is the requirements One of section provides. 120 days’ after can be made only to filed tariffs changes 203(b)(1). The and the public. notice to the Commission only 203(b)(2) modification to the Commission’s exception may that the Commission is as follows: “except (1) to be in notice period specified paragraph require it conceivable Is hundred and twenty days.” than one more power is indifferent the statute for all except entirely eliminate the tariff-filing requirement out the sector, and strains yet in the long-distance one firm tariff revision be- of extending waiting period gnat ri- is not as think The exception We not. days? yond be because it is to in London only diculous as Lilliputian “modifications,” in the world of small-scale Lilliput: found it is a deal. big not entitled of a statute is an interpretation
Since agency’s that the stat meaning when it goes beyond to deference Group g., Sebben, e. Pittston Coal v. bear, see, ute can Chevron, 842-843, S., (1988); U. U. S. can be detariffing policy justified Commission’s permissive than radical or fundamental change if it makes a less only at The Commission’s the Act’s tariff-filing requirement. that no more than that is involved greatly to establish tempt from the understates the extent to which its deviates policy undervalues the importance filing requirement, greatly itself. filing requirement law, To consider the latter For the of a point body first: of a whether minor or for the body person, change major the item to some extent depends upon importance to the whole. Loss of an entire toenail is changed insignifi- entire cant; loss of an arm tragic. tariff-filing require- is, ment this the heart of the common- pursue analogy, carrier section of the Communications In the context Act. of the Interstate Commerce as its Act, model, served g., Corp. see, e. FCC, MCI Telecommunications v. 917 F. 2d stressed (CADC has 1990), repeatedly this Court
30,38 unrea means of preventing chosen was Congress’s rate filing is not charges: “[T]here and discrimination sonableness *11 between provi indissoluble relation, unity but an only cor of rates until and maintenance the establishment sion for and the the statute prohibitions accordance with rected in Texas & and discrimination.” preferences against Pacific Co., (1907); 440 Abilene Cotton Oil 426, 204 U. S. R. v. Co. Co., R. Baltimore Ohio 506, 222 U. S. Robinson v. & see also with the Commis “The to file rates duty 508-509 to charge and the 203(a)], obligation to sion, analog [the been 203(c)], §to have rates, always analog [the those only and to discrimination considered essential preventing price Industries, S., Inc. Pri Maislin U. v. rates.” stabilizing Arizona Inc., Steel, (1990); 126 see also 116, 497 U. S. mary Atchison, Co., T. F. R. & S. 370, 284 U. S. 384 Co. v. Grocery certain, and “render rates definite (filing requirements Armour abuses”); and other . discrimination . . prevent (1908) (elimina States, Co. v. United 56, 81 Packing U. S. the door to “opens possibility tion of filing requirement it was the design of the abuses of rates which very unequal As the Maislin Court the statute to prohibit punish”). “is cen with these concluded, provisions ‘utterly compliance S., 132, at tral’ to the administration Act.” U. Common Carrier v. United quoting Regular Conference 1986). (CADC States, 2d F. of the rest of the Communications Act subchapter
Much Carriers, §§201-228, to see 47 U. S. Common applicable the Act’s Procedural and Administrative Provisions, §§401-416, S. C. are premised upon tariff-filing U. §203. §415 For defines “over- requirement example, (which recover) customers are entitled to ref- charges” erence to the filed rate. See 415(g). provisions customers and to rates as un- allowing competitors challenge reasonable or as see 47 206- discriminatory, §§204, U. S. C. not be if 208,406, would of effective enforcement susceptible supra, Maislin, rates were filed.4 See 132. publicly are, in of a fact, Rate essential characteristic rate- filings It that regulated industry. highly unlikely would leave the determination of an will whether industry be even rate-regulated entirely, substantially, agency discretion —and even more that it would achieve unlikely such a subtle device through permission “modify” rate-filing requirements. in mind, then,
Bearing enormous to the importance scheme of the we turn to statutory provision, tariff-filing has whether what occurred here can be considered mere “modification.” The stresses its detariff- ing applies carriers, nondominant policy only so rates to over half of charged all consumers long- *12 distance market are on file with It the is not Commission. clear to that the affected, us of customers proportion rather than the affected, of carriers is the proportion meas- proper course all (of ure of the extent of the in exemption carriers AT&T). the market are long-distance But exempted, except even is, it think assuming we an elimination of the crucial of the provision statute 40% of a of the major sector in- is much too extensive dustry to be considered a “modifica- tion.” What we have here, is a fundamental revi- reality, sion of the statute, a it from changing scheme rate regulation long-distance common-carrier communications 4The misrepresents sentence, dissent say post, what we in this see 242, and paragraphs addresses two argument made, to an we not have post, at 242-244. say, We simply Court, as did the Maislin that eliminat ing tariff-filing requirement the complaint would frustrate proceedings; eliminating not requirements, that those eliminating or indeed even the complaint proceedings, would frustrate purposes the ultimate of the Act. Perhaps, asserts, as not; the dissent it perhaps eliminating would even the (and FCC) FCC do bound, would not so. But we are only by purposes Congress by ultimate selected, has but the means it has deemed appropriate, prescribed, pursuit for the purposes. of those competi- where effective rate only regulation
to a scheme idea, it was not a but good That bemay exist. does not tion law 1934. enacted into Congress the idea “modification,” there to qualify its failure from Apart detariffing reason independent why is an 203(b)(2) to modify. § come within cannot policy proceeds that when requires That provision (as when it acts “in particular order” opposed general “by instances”) only the order can modification, apply make a that is a Although conditions.” circumstances “to special so. It is hard to it not infinitely phrase, elastic somewhat all shared 40% of by long-distance a condition imagine one, qual- all customers, long-distance except of this limitation.5 within intent as “special” ifies has mani- sides of this contend dispute Both their with respective in later legislation agreement fested Act. Petitioners of the Communications interpretations to require operator 1990 amendment of Act to the point (OSP’s) tariffs, informational which file providers service four Telephone Operator out after see years, can be phased (TOCSIA), Act Consumer Services Improvement IV). 226(h) (1988 Petition- ed., S. Supp. Stat. 47 U. C. background permis- reason that this must envision ers of infor- phaseout since otherwise the filing, permitted sive 203(c) Act, ignore prohibits suggests we The dissent *13 pro absence a filed “unless providing from service the of rate by authority or the this Act.” The asserts that vided under of dissent 203(b)(2). § authority of phrase must refer to the modification See that post, though all Perhaps at 239-240. it does that would not at contra so— §203(b)(2), acknowledged, have interpretation dict our of which we see infra, 234, might permit at limited the Commission some circumstances 203(c) (in more) fact, § requirement. just filing to waive the But could §203(a)’s easily referring express exemption connecting be read as to of 201(b) §§ carriers, pur and 211’s authorization of services between carriers §332(c)(l)(A)’s rates, carriers, exemptions suant to contractual for mobile exemptions requirements. express statutory filing other from and rigorous phase-in mational tariffs would be a of even more requirements. AT&T, hand, on other that claims Con- gress agreement position in has manifested with its the re- 332(c)(1)(A) gives of 47 cent amendment U. S. that authority requirement tariff-filing Commission limit authority for commercial mobile that would be un- carriers — §203 necessary if the Commission’s view of is correct. At conflicting arguments most, these was indicate that decade-long tug aware of the of war between of the District Columbia Circuit over the requirements, filing proceeded relax different times assumptions on different as to who would win. We have history legislation here not a consistent of one to which interpretation other, essential; of the Act is but rather legislation pieces two one, to which first and then the interpretation congenial. other, is the Act more That is enough change anything. Finally, petitioners earnestly urge interpreta- that their 203(b) pur- tion of furthers the Communications Act’sbroad pose promoting telephone They efficient service. claim although filing requirement prevented price discrim- practices ination and unfair while AT&T maintained a mo- nopoly long-distance over service, it those frustrates same goals greater competition now there in that market. Specifically,they filing contend costs raise bar- artificial entry publication riers to and that the of rates facilitates parallel pricing price competition. and stifles We have con- sympathy arguments (though siderable with these we doubt it sense, makes if one is concerned about the use of filed pricing require tariffs to filing communicate information, to likely price carrier, dominant the firm most to be a leader). policed The Court itself has trade associations rate under precisely bureaus the antitrust laws because the sharing pricing price fixing, information can facilitate see, g., Sugar e. Institute, Inc. v. United States, U. S. 553 *14 States, v. United Lumber Co. Column & American
(1936); regulated has (1921), protected and the Court 257 U. S. on the basis suits brought of antitrust some types from firms Fron Niagara D e. Co. v. Square g., rates, see, filed of their (1986). As we noted Bureau, Inc., 476 U. S. tier Tariff in other fo “debate Term, there considerable is this earlier doctrine,” Security rate of the filed the wisdom about rums (1994), and, Corp., Inc. v. Kmart 511 U. S. Services, of the regulation value of continued about the broadly, more estimations, and the But our industry. telecommunications estimations, desirable cannot alter of policy Commission’s For Act of 1934. federal Communications meaning filed- a rate-regulation, the Act establishes worse, or better and the communications, for common-carrier system tariff “to ‘increase cannot competition' pro desire Commission’s filed well-established statutory to alter the authority vide [it] we Maislin, at As ob S., 497 U. 135. rate requirements,” over the filed-rate doctrine the context of dispute served address them “such considerations than 80 years ago, more courts,” Armour Packing, not to the to Congress, selves S., at 82. U. require- not mean to the tariff-filing
We do suggest is modi- existing ment so inviolate it all. does not reach Certainly fication contents, and form, location modify Commission can and can even waive defer filings, filing perhaps required in limited But what we have it circumstances. altogether is the introduc- beyond here well that. It goes effectively (or new of free-market tion a whole regime regulation is not well be a better but may regime competition), one that established. of the Court judgment Appeals Affirmed. no in the Justice O’Connor took consideration or part of these cases. decision
Justice Stevens, with whom Blackmun and Justice Justice Souter join, dissenting.
The communications has an industry dynamic unusually In 1934, character. authorized the Federal Com Congress (FCC Commission) munications Commission to regulate “a field of enterprise dominant characteristic of which was the of its National Broadcast rapid pace unfolding.” Co. ing States, v. United (1943). 190,219 319 U. S. The Com (Act) munications Act of 1934 gives FCC broad unusually discretion to meet new and in order unanticipated problems to fulfill its mandate sweeping available, “to make so far as possible, to all the of the people States, United a rapid, efficient, Nation-wide and world-wide wire and radio com munication service with facilities adequate at reasonable charges.” U. S. C. This 151. Court’s consistent inter pretation the Act has afforded the Commission lee ample toway and interpret apply statutory powers respon e. United States See, sibilities. g., v. Southwestern Cable Co., 392 U. S. 172-173 (1968); FCC v. Pottsville Broad Co., casting 309 U. 134, 138 S. The Court aban today dons that approach favor of a literalism that rigid deprives of the FCC flexibility meant it to have in order to implement the core policies Act in rapidly chang ing conditions.
I At the time the Act was passed, telephone industry was dominated by the American & Telephone Telegraph (AT&T) Company and its affiliates. Title II of the Act, which establishes the framework for FCC of com- regulation mon carriers by wire, was to that domi- clearly response nance. As the Senate Report explained, “[under existing provisions the Interstate Commerce Act the regulation the telephone has been monopoly nil. This practically vast monopoly so immediately serves the needs of the peo- regu- effectively life must be social their daily pie (1934).1 Sess., 2d 781, 73d Cong., No. Rep. lated.” S. of the Act address provisions The wire communications Section monopoly. with associated distinctly problems . communication to “furnish . . carriers telephone requires and mandates therefor,” request reasonable service upon classifications, regula- practices, their “charges, §201. Section 47 U. S. C. and reasonable.” “just tions” be dis- or unreasonable any unjust “make 202 forbids *16 classifications, regulations, in charges, practices, crimination or unreasonable undue services ... or facilities, give any or class of person, or to advantage any particular preference 202(a). Commission, § The or U. S. locality.” persons, hold hearings upon, own motion, may or its upon complaint § increases, 204, rate of, declare the lawfulness proposed and a find- charges upon and reasonable may just prescribe are illegal, or charges that a carrier’s actual proposed ing of the stat- carrier’s violation § damaged by 205. Persons §§206-207, and any person may ute have a to right damages, of the of violation with the Commission a complaint file §208. Act, the filed rate 203, provisions modeled
Section upon §§ 10761-10762; S. Act, Commerce see 49 U. C. Interstate swpra, 781, 4, that common requires S. No. Rep. carriers “file with other than connecting for schedules showing and keep public inspection print open S. for carriers.” U. C. charges all itself its connecting 203(a). 120-day A carrier must allow a telephone period “unless other- effect, and, lead tariff time before a into goes States, Investigation Industry in United H. R. Telephone See (1939) Sys 340, Cong., Sess., (chronicling No. Bell Doc. 76th 1st 145-146 “Nation-wide, system monopolize to development tem’s of a unified telephone through “preven part of the national field” communication Rep. H. competition”). tion and elimination See also R. No. of effective Cong., Sess., pt. 1, (“Telephone 73d 2d p. XXXI business is a monopoly supposed regulated”). be —it wise or under of this by provided authority chapter,” may communication not services to a provide except according (d). §§ schedule, 203(c), filed section of the tariff-filing Act, however, contains a that states: proviso
“(b) in schedule; discretion of Commission to Changes modify requirements.
“(2) The Commission in its discretion and may, shown, cause made good modify any requirement by under the of this section either particular instances or order cir- by general applicable special cumstances or conditions the Commission except the notice may require period specified paragraph (1) to be more than one hundred and twenty days.” 203(b)(2) (1988 IV). ed., U. S. C. Supp. provisions doubtless viewed the filed rate as an
important guard against practices mechanism to abusive monopolies. quite wrong wire communications But it is suggest process filing the mere rate sched- duty reasonably priced ules-rather than the substantive nondiscriminatory *17 and service-is "the heart of the Ante, common-carrier section of the Communications Act." 229~ II In in communications in- new conditions the response of in the dustry, including stirrings competition long-distance the in 1979 market, FCC re-examining telephone began The concluded scheme. Commission regulatory tentatively were and unnecessary costly tariff-filing requirements to nondominant car- actually counterproductive applied e., i. riers, those lack of market leaves them whose power unable to extract rates discriminatory supracompetitive Competitive Rulemaking, Carrier from customers. See (1979). F. 2d C. C. burdens Relaxing regulatory new entrants foster would into the tele- upon competition the forces of com time, at the same markets; communications power firms without monopoly ensure that would petition on “unreasonable with the Act’s prohibitions comply would id., As See at 334-338. discrimination. and price rates” for 1981, obligations tariff-filing explained the Commission as a firms were simultaneously “superfluous nondominant circumscribes device, since competition protection consumer inimical to these and and of practices companies” the prices and innovation.” marketing and service competition “price Services, 84 F. C. C. 2d Telecommunications Deregulation of (1981). rulings a series of Accordingly, 445, 478-479 1980’s, issued orders progressively the Commission early from of nondominant carriers classes specified exempting e. Second g., Report See, to file schedules. tariff obligation Order, and Third Order, Report (1982); 91 F. 2d 59 and C. C. The Commission’s Fourth Report Reg. 48 Fed. Order, 95 F. C. (1983), and 2d 554 extended reaffirmed under dominant detariffing” policy, its “permissive whereas must file tariff schedules non- long-distance carriers, to the Act’s subject prohibitions although dominant discrimination, may, unreasonable rates but price on not, file them. need In re Inter Filing Requirements
In the instant Tariff Carriers, state Common (1992), 7 FCC Red 8072 FCC to its nondominant adhered policy excusing providers §203 from telephone service long-distance filing require and codified that forbearance ment, longstanding policy. reaffirmed its commitment . . “adapt . telecommunications common carriers regulation circumstances of and to changed competition develop regu that furthers the of the Act latory approach while purposes innovation and the efficient fostering development id., telecommunications industry,” explained *18 in once its again why, view, furthered permissive detariffing id., these at 8079-8080. As it had since its goals, initial stages detariffing, see 2d, 84 F. at 479-480, C. C. the Com- principal statutory detariffing mission found 203(b)(2). “modify any requirement” language experience “[AJctual per- Red, at FCC 8074-8075. under detariffing,” including missive an increase in the number of long-distance carriers from 12 in 1982 to 482 a decade later, confirmed] [the approach FCC’s] “further the success of furthering statutory goals of the Communications Act.” Id., at 8079-8080.
Ill Although majority observes that further relaxation of tariff-filing requirements might effectively more enhance competition, ante, at 233-234, it does not take issue with the mandatory filing Commission’s conclusions that of tariff purpose actually schedules serves no useful and is counter- productive in power. the case of carriers who lack market prior As detariffing the Commission had noted in its orders, g., see, e. 2d, F. C. C. at 479-480, if a nondominant carrier sought charge simply inflated rates, “customers would move to other carriers.” 7 Red, FCC at 8079. Moreover, power an ordinarily preclude absence of market will firms of any engaging price kind from g., See, discrimination. e. (“A Sullivan, L. Law of Antitrust 89 firm will not dis- criminate power”); unless it has market 9 Areeda, P. Anti- ¶ pp. trust Law 1711a, 119-120 The Commission plausibly any slight concluded that enforcement benefits a tariff-filing requirement might outweighed offer were put burdens it would on new entrants and consumers. Thus, question the sole for us policy, is whether the FCC’s however sensible, is inconsistent nonetheless with the Act. my
In view, each of detariffing orders squarely was power within “modify any requirement” 203(b)(2) of 203. Section plainly confers at least some dis- modify general cretion to rule that carriers file tariffs, *19 “any 203(c) Section requirement.”2 it of for spéaks posi- the FCC’s Court, supports Act, squarely ignored by without a service it carriers from tion; providing prohibits authority provided or under “unless otherwise tariff of 203(b)(2) Act” Section this one is plainly provision with- authorizes, service and thereby provides,” “otherwise §203’s authority modify The to filed schedule. FCC’s out a or order by “general instances” “particular requirements emphasizes or conditions” to circumstances special applicable modi- authority: character the Commission’s expansive the Com- broad, narrow or may depending upon be fications vantage of current From the conditions. mission’s appraisal mo- to an almost seeking regulate completely of a surely the advent of is competition industry, nopolized legitimately circumstance condition” might “special different treatment. regulatory for call modifi- to the Commission’s statutory The only exception not that it extend may 120-day cation authority provides 203(b)(2). 203(b)(1). § The set out See notice period author- limit on the Commission’s Act thus imposes specific carriers, on but does to that regulatory imposition ity stiffen relax it. to It confine the was authority from this unidirec- no stretch for the FCC draw single, limitation on its modification authority tional statutory is otherwise unlimited. See 7 authority inference Red, at 8075. FCC Court, the term
According explicated “modify,” dictionaries, ante, 225-228, in all but the most unreliable at 3, and n. rules out Commission’s claimed relieve nondominant the basic to file carriers of obligation be tariffs. Dictionaries can useful aides inter- statutory but are no for close analysis substitute pretation, they words used what mean as in a particular statutory context. 203(b)(2) merely do more allow Section must than the Commission to 203(b)(1) filings, separately dictate the form and contents tariff grants authority. it that 1945) (CA2 Markham, (Hand, Cabell 2d
Cf. v. F. J.). Even if the sole were to “modify” possible meaning ante, 225,3 make “minor” further changes, elaboration needed to show why should fail. detariffing policy *20 Commission came to its a series of present policy through that relaxed the rulings gradually filing requirements nondominant carriers. Whether the current should policy count as a an cataclysmic merely incremental departure 203(a) from the baseline on one whether focuses depends (in on carriers’ particular file which case the obligations shift)4 Commission’s policy works a or on the arguably major (which behind the statutory policies tariff-filing requirement remain satisfied because market constraints on nondominant carriers obviate the §203 need for rate When is filing). viewed of a as statute aim is part whose to constrain monop- the oly power, Commission’s decision to nondominant exempt rational a and “measured” to novel adjustment circumstances —one that remains faithful to the core purpose of the tariff-filing section. See Black’s Law 1198 Dictionary (3d 1933) ed. “modification” as “A an (defining alter- change; ation which introduces new details, elements into the or can- them, cels some of but the leaves general purpose effect intact”). the subject-matter of The Court seizes a upon particular sense of word at the “modify” expense another, long-established meaning 3 petitioner points out, As MCI revolutionary provid consent decree ing breakup was, for the System the Bell per proposal, own AT&T’s entitled Judgment.” “Modification of Final See United v. Ameri States Telephone Co., (D. Telegraph can & Supp. 1982), aff’d, F. U. S. 1001 imposes Because the statute no limit on the shorten the interval between filing bringing effect, tariff and it into sign because anyone there is no actually pays attention tariffs carriers, filed nondominant step eliminating the additional filing requirement important is less than Court would it. have Even the appears Court to recognize that the Commission could sometimes excuse filing ante, carriers from tariffs. See 234. word is That position. the Commission’s
that fully supports (4th ed. Dictionary Collegiate in Webster’s defined first degree.”5 in extent or 1934) or reduce “to limit meaning fits comfort- detariffing policy permissive The Commission’s of the term. The understanding this common within ably “if stating you rule has in effect adopted general FCC you nondominant file, if are you must but you are dominant detariffing policy— The Commission’s partial not.” need on condition filing from nondominant carriers excuses of a a relaxation simply nondominant —is remain they had that recent developments costly regulatory requirement in a class certain and counterproductive rendered pointless of cases. like order 203(b)(1), any §to other modification pursuant
A with consistent must of course be Act, under issued asserts On Court point, the statute. this purposes *21 and discrimi- unreasonable against that the Act’s prohibition enforce- not be of effective susceptible rates “would natory Ante, at 231. That if were not filed.” ment rates publicly make in is to determination, course, Commission But the has ex- the first instance. repeatedly 5 1989) (2d (“2. Dictionary To English 952 ed. alter in See also 9 Oxford severe, rigorous, lenity; or to make less or direction of moderation decided; Pseudo-martyr .... 184 ‘For qualify, to tone down 1610 Donne Doctrine, any his that the Prince should not execute so Mariana modefies man, ”); Dictionary though Random House Clergy deser[v]e hee it’ (“5. (2d 1987) degree 1236 ed. to reduce or lessen in or English Language demands")', extent; moderate; soften; modify to one’s Webster’s Third (“1: (1981) temperate Dictionary 1452 to make New International more of; severity . . . rules and less extreme: lessen the ‘traffic were modified (“1. (1973) ”); Dictionary pass’ Collegiate New to let him Webster’s 739 to extreme; MODERATE”); Collegiate less Webster’s Seventh New make (1963) (same); Dictionary Dictionary 544 Webster’s New International (“2. (2d 1934) moderate; degree; qualify; ed. To reduce extent or to as, Webster, lower; modify heat, pain, punishment”); N. American to (“To (1828) Dictionary moderate; English Language qualify; to to grace/ Of degree. reduce extent or his He his first severe modifies Dryden”). decree. (1) a carrier that lacks plained market is power entirely (2) to unreasonable or unlikely charge rates, discriminatory bans on unreasonable statutory dis- charges price crimination with full force apply of whether carri- regardless (3) ers have file tariffs, violations non- any suspected dominant carriers can be addressed on the Commission’s own motion or on a damages §206,6 filed complaint pursuant can FCC a tariff should reimpose requirement g., e. violations See, occur. Red, FCC at 8078-8079. Court does not adequately to the respond FCC’s explana- tions, and no reason gives whatsoever to doubt the Commis- sion’s considered judgment tariff un- filing altogether g., id., e. in the necessary case of competitive carriers, see, 8073, 8079; the ineffective majority’s enforcement argument lacks any evidentiary historical support.
The Court’s argument is also A incorrect. demonstrably cousin of contemporary the Communications Act of 1934— the Robinson-Patman Price Discrimination Act, U. S. C. §§ 13(a), 13a, 13b, enacted in 1936—contains a much broader prohibition against price discrimination than does the Com munications Act. That statute has its mission for performed almost 60 without years any to the filed rate counterpart Indeed, doctrine. the substantive II requirements Title of the Communications Act itself apply carri “connecting ers” 203(a) even though exempts such carriers from the §203 tariff-filing provisions. National See 152(b); U. S. C. Regulatory As Utility sn. C., Commr’s F. v. 2d (CADC F. 1095, 1115, 23n. 1984), cert. denied, 469 U. S. *22 (1985). 1227 The small fraction of carriers competitive 6The Court suggests that the detarifñng policy disrupts statutory the scheme § because 47 415(g) U. S. C. defines recoverable ante, ‘“overcharges’” by reference to filed tariffs. See at 230. Over charge suits, by definition, depend presence tariffs, on the of they but are not only the means for aggrieved telephone customers to recover. Section 206 allows them to recover damages from carriers who have violated the Act and does not turn on the 415(b). 208, §§ existence of a tariff. See also this market; 40% of the about in now represents
existed has in been detariffing policy while the has occurred growth of filed sched- the absence indication that effect without any or unreasonable pricing discriminatory ules has produced impor- the “enormous Extolling carriers. nondominant by to ante, dictionary 231, resorting at rates, filed tance” of substi- unsatisfactory are and colorful metaphors definitions statute requires of why explanation for a reasoned tutes no useful purpose serves practice even when rate filing consumers. harms actually Act are the Communications tariff of The filed provisions several but one of themselves, merely proce are not ends do ensure that carriers to means for the Commission dural rates. or See discriminatory not unreasonable charge con has 2d, reasonably The Commission F. 483. C. C. the statute’s enforcing this means of particular cluded in the will counterproductive mandates prove substantive Even if the carriers. nondominant long-distance case of of the Commission’s scope did define Congress this with scholarly precision, modification authority perfect case for deference to the is a surely paradigm, judicial statutory interpretation, particularly regime agency’s so meant to maximize administrative obviously flexibility.7 §203(b)(2), the Commission’s reading Whatever best It is cannot in view be termed unreasonable. my reading majority Congress have unlikely it would conferred The considers power supposedly pivotal to from exempt on the Commission ante, obligation. surely delegation But rate-filing See at 231-232. such FCC, place empowers example, also not out a statute that convenience, interest, necessity” the “public requires, decide what g., see, 303, § e. regulations 47 U. S. such “prescribe rules and §154(i). may necessary interest,” 201(b); public be in the see also 202(b)(2) step rigid reading prior recognition Court’s is out with our Act “supple that the 1934 was meant to be a instrument for the exercise body expert charged carry of discretion has out Co., Broadcasting FCC Pottsville legislative policy.” v. 309 U. S. *23 not) (as understanding informed ours is practical (or thereof) modern lack that filed tariffs play role industry. and in the telecommunications climate regulatory measures originally the FCC has sought adapt Since new market condi to control designed monopoly power man has and consistently explained tions. It carefully interest rules frustrate the core statutory datory tariff-filing the “dis use of in rate reasonableness. 203(b)(2) reason reflects “a cretion” conferred by expressly interests accommodation of manifestly competing able scheme is technical to deference: the regulatory is entitled in a detailed considered the matter complex, agency involves reconcil fashion, and reasoned and the decision A. Inc. v. Natural Chevron U S. ing conflicting policies.” 837, 865 Council, Inc., Resources 467 U. S. Defense (footnotes omitted). interpreted The FCC has permissibly 203(b)(2) service goals eminently sustain its set forth in the Act. We should sound, uncommonly well-explained experience-tested, judgment.
I dissent. respectfully