Petition for review of an order of the Federal Communications Commission declining to reject or suspend and investigate an American Telephone and Telegraph Company tariff filing. Petition dismissed for lack of jurisdiction.
Before Meskill and Kearse, Circuit Judges, and Markey, Chief Judge of the United States Court of Customs and Patent Appeals.*fn*
AT&T is a telecommunications common carrier, offering private line services, Message Telecommunications Services (MTS), and Wide Area Telecommunications Services (WATS).
Concerned that AT&T's monopoly services (MTS and WATS) might be providing a cross-subsidy for its private line offerings, the FCC instituted an investigation in 1965 into the lawfulness of all AT&T rates and services. A primary goal of that investigation was development of a costing methodology which would permit AT&T to compete effectively but prevent it from engaging in cross-subsidization.
In 1976, in Docket 18128, the FCC established general principles to govern the development and evaluation of rates for AT&T's various services. One such principle required that AT&T set rates for individual services that would produce for each an authorized system-wide rate of return.
Finding the Docket 18128 principles inadequate, on January 6, 1981 the FCC adopted an Interim Cost Allocation Manual (ICAM) listing detailed procedures which AT&T was to follow in allocating its costs among four broad service categories private line services, MTS, WATS, and Exchange Access Facilities. The FCC ordered that each category earn the authorized interstate rate of return.
On February 13, 1981, AT&T filed tariff revisions proposing an across-the-board rate increase of 16.4% covering each of its various private line services.*fn1 AT&T provided cost data showing that the increase would result in the private line category earning in the aggregate the then authorized interstate rate of 10.5%, but submitted no information relating to the individual earnings level of each of the private line services.
Petitioners and other private line users requested the FCC to reject or suspend the tariff revisions, urging that because AT&T failed to provide cost justification for each of the various private line service rates affected by the increase, the tariff filing was defective and in violation of § 201(b) of the Communications Act (Act) (47 U.S.C. § 201(b))*fn2 and FCC Rule 61.38 (47 C.F.R. § 61.38).*fn3 Petitioners did not file a complaint under § 208 of the Act.*fn4
The FCC declined to reject, or suspend and investigate, the tariff filing, but acknowledged that AT&T remained obligated to fully justify its tariff rates in individual tariff proceedings. Petitioners then brought this appeal, asserting that the FCC had unlawfully abdicated its statutory obligation under § 201(b) to ensure just and reasonable rates.
Whether this court has jurisdiction to review the FCC's refusal to reject, or suspend and investigate, tariff filings.
A statute, 28 U.S.C. § 2342, limits the jurisdiction of the courts of appeals to review of final decisions of the FCC. In denying petitions to reject, or suspend and investigate, AT&T's tariff filings, the FCC did not rule here on the lawfulness of those tariffs, that is, on whether the tariffs comply with § 201(b). The FCC exercised its discretionary authority under § 204 of the Communications Act to allow tariffs to go into effect without suspension and investigation.*fn5 That exercise constitutes a preliminary decision within the Commission's exclusive discretion. It does not result in a final order reviewable in this court.
In Arrow Transportation Co. v. Southern Railway Co., 372 U.S. 658, 83 S. Ct. 984, 10 L. Ed. 2d 52 (1963) (Arrow), the Court held Interstate Commerce Commission exercises of its suspension powers nonreviewable. The Court pointed out that judicial review at that stage would undermine the agency's primary jurisdiction by bringing the courts ...