Motion to dismiss, or transfer to the Court of Appeals for the District of Columbia Circuit, a petition for review of an order of the Federal Communications Commission. Motion denied.
Before Lumbard, Mansfield and Newman, Circuit Judges.
This motion to dismiss or transfer a petition for review of a decision of the Federal Communications Commission involves determination of when and where such decisions are reviewable. The Commission moves to dismiss the petition, filed by ITT World Communications, Inc., for lack of jurisdiction, alleging that it was filed prematurely, and that the first timely petition for review was filed in the Court of Appeals for the District of Columbia Circuit.*fn1 See 28 U.S.C. § 2112. This motion essentially requires determination of which of the circuits should consider a petition for review of the same agency order in other words, who has won the all too familiar "race to the courthouse." However, unlike many cases where the issue is who won the race, the question here is when did the race begin.
The subject matter of the FCC decision concerns international record, or non-voice, communications services, most notably "telex." When the Western Union Telegraph Company (Western Union) acquired its virtual monopoly of the domestic telegraphy market, it was required to divest itself of its existing facilities for overseas services, 47 U.S.C. § 222.*fn2 The divested facilities were acquired by Western Union International, Inc. (WUI), an unrelated company. At present, overseas record service is provided by a group of common carriers, the largest of which are ITT, the petitioner, and WUI, RCA Global Communications, Inc. (RCA), and TRT Telecommunications Corp. These carriers are restricted in their United States operations to a small number of "gateway" cities; they communicate with United States customers outside these cities by means of telegraphic connections with domestic carriers, primarily Western Union.
In September, 1979, Western Union began offering direct overseas services to its customers, not through the gateway cities, but through overland connections to Canada and Mexico.*fn3 After protesting this action to the Federal Communications Commission, ITT brought suit against Western Union in the United States District Court for the Southern District of New York. The Court (Charles L. Brieant, Jr., Judge) invited the Commission to participate in the proceedings. The Commission responded that it would deal with the substance of the matter raised by the ITT petition in a proceeding of its own, consisting of a public meeting to be held on December 12, 1979.
At the December 12 meeting, the Commission by formal vote adopted F.C.C. Order 79-845, which decided that Western Union's overseas service did not violate 47 U.S.C. § 222. The Commission did not at that time release a written opinion stating its findings and conclusions; however, on that day it distributed the summary minutes of the meeting, listing adoption of the order, and also issued a news release announcing and describing the decision. The Commission's general counsel then wrote to Judge Brieant that same day, informing him that the Commission had acted on ITT's complaint. This subsequently led Judge Brieant to dismiss ITT's action against Western Union as moot. Also on December 12, 1979, ITT filed in this Court its petition for review of the Commission's December 12 decision naming the Commission as the respondent.*fn4 This was the first petition filed after the December 12 meeting.
Some three weeks later, on January 3, 1980, a representative of RCA Global Communications was informed by the Commission staff that the full text of the FCC's opinion in the ITT matter would be released that day, at 11:00 a. m. This time was consistent with announced Commission policy of releasing public documents at 11:00 a. m. and 3:00 p. m. each day. On the basis of this information, a representative of RCA proceeded to the Commission's Washington headquarters that very morning. According to the uncontradicted affidavit of the RCA representative, she arrived at about 10:20 a. m. to find the Commission's final opinion set out on a counter with a written note beside it stating that it had been released at 9:30 a. m. She immediately telephoned New York to arrange for the filing of a petition for review in the Second Circuit, which was RCA's, as well as ITT's circuit of choice. Apparently, however, a Western Union representative had arrived earlier at the FCC office, for Western Union's petition was filed in the District of Columbia Circuit, some thirteen minutes before RCA's petition was filed here. As a result, the Western Union petition was the first to be filed after release of the Commission's full opinion.
Both Western Union and the Commission contend that ITT's petition is premature and that Western Union's petition, filed in the D.C. Circuit after the January 3 opinion, is the first one validly invoking appellate jurisdiction. On this basis, the Commission moves to dismiss ITT's present suit before this Court, and leave the matter pending in the D.C. Circuit. ITT responds that its petition, filed after the December 12 meeting, gives this Court jurisdiction because it has temporal priority over the D.C. Circuit petition. Alternatively, the Commission moves to transfer ITT's petition to the District of Columbia Circuit. We deny the motion to dismiss for lack of jurisdiction, though, as will appear in Part II, the members of the panel reach this conclusion by different routes. We also deny the motion to transfer, and on this issue we share the same reasons, see Part III, infra.
The rules determining the proper court for appellate review of administrative decisions are found in 28 U.S.C. §§ 2112, 2344. Section 2344 provides, in part:
On the entry of a final order reviewable under this chapter, the agency shall promptly give notice thereof by service or publication in accordance with its rules. Any party aggrieved by the final order may, within 60 days after its entry, file a petition to review the order in the court of appeals wherein venue lies.
Section 2112(a) provides, in part:
If proceedings have been instituted in two or more courts of appeals with respect to the same order the agency, board, commission, or officer concerned shall file the record in that one of such courts in which a proceeding with respect to such order was first instituted. The other courts in which such proceedings are pending shall thereupon transfer them to the court of appeals in which the record has been filed. For the convenience of the parties in the interest of ...