[00:00:02] Speaker 00:
Case number 16-1277, NTCH, Inc.

[00:00:05] Speaker 00:
Petitioner versus Federal Communications Commission, et al.

[00:00:10] Speaker 00:
Mr. Evans for the petitioner, Ms.

[00:00:12] Speaker 00:
Flood for the respondent, Mr. Haga for the intervener.

[00:00:43] Speaker 06:
Good morning.

[00:00:44] Speaker 02:
Good morning, and may it please the court.

[00:00:46] Speaker 02:
I am Donald Evans on behalf of Petitioner NTCH, and I believe the court's aware that there are elements of the case that are under seal.

[00:00:54] Speaker 06:
We think you should begin by discussing jurisdiction.

[00:00:59] Speaker 02:
That's exactly what I was planning to do, Your Honor, so I'll start there.

[00:01:03] Speaker 02:
Excellent.

[00:01:04] Speaker 02:
In 1988, Congress enacted a statute to deal with some particular problems that were being experienced in the handling of these types of complaints at the FCC.

[00:01:13] Speaker 02:
It was taking too long for the FCC to resolve them.

[00:01:17] Speaker 02:
And they were being resolved by delegated authorities.

[00:01:20] Speaker 02:
And then that decision had to be appealed to the full commission before the decision of the commission could be appealed to court.

[00:01:28] Speaker 02:
So Congress enacted a statute that addressed those particular issues directly.

[00:01:33] Speaker 02:
It said the Commission had to act, at the time of the 1988 act, in 12 months.

[00:01:38] Speaker 02:
That's since been reduced to five months.

[00:01:40] Speaker 02:
And it said the Commission couldn't delegate its authority to act on these complaints to the relevant Bureau.

[00:01:49] Speaker 02:
What we have here is a situation where the Commission, I guess, is admitting that it violated the statute by delegating its authority to the Bureau to resolve the case.

[00:01:59] Speaker 02:
And the question is, does that completely negate the congressional statutory scheme by then permitting the commission to require an internal review within the commission to the full commission before you can go to the Court of Appeals?

[00:02:15] Speaker 02:
That can't be right.

[00:02:18] Speaker 02:
I mean, how can the commission violate the law and then use that as a vehicle for completely abnegating what the law otherwise requires and permits?

[00:02:29] Speaker 02:
Also, if you take the language of 208b3, which says any order terminating a complaint proceeding of this sort is a final order and may be appealed to the Court of Appeals, that has to be given some meaning.

[00:02:46] Speaker 06:
So explain to me.

[00:02:47] Speaker 06:
You understood you weren't proceeding before the full commission, correct?

[00:02:53] Speaker 02:
Well, no.

[00:02:53] Speaker 02:
When the case began.

[00:02:54] Speaker 06:
You filed your complaint.

[00:02:56] Speaker 06:
All right, and it was transferred, or I don't know the internal operations, but it ended up with the enforcement.

[00:03:07] Speaker 02:
Bureau, yes.

[00:03:08] Speaker 06:
Bureau.

[00:03:09] Speaker 02:
And we were told at the time, at the very initial sort of preliminary hearing that we had with the bureau, that the case would have to be resolved by the commission.

[00:03:19] Speaker 06:
And then you proceeded to make your case before the bureau.

[00:03:22] Speaker 02:
Yes, and that would have been, it would have been permissible in my view for the Bureau to gather the facts and analyze the facts, but then refer it to the full Commission to actually make the decision.

[00:03:32] Speaker 02:
And that's what I thought was going to happen.

[00:03:34] Speaker 02:
Instead, you know, in, I guess it was in June of 2016, the Enforcement Bureau issues a decision, which is completely, you know, violative of what Congress directed in 1988.

[00:03:48] Speaker 02:
So,

[00:03:50] Speaker 06:
And you filed something at that point to object?

[00:03:55] Speaker 02:
No, because I thought that Section 208B3 gave me the absolute right to treat that as a final order of the Commission.

[00:04:01] Speaker 02:
I mean, as an order of the Commission, terminating the investigation, which is exactly what that order did.

[00:04:07] Speaker 06:
I understand your point, but you didn't ever say to the Commission,

[00:04:19] Speaker 06:
This is not, you must refer this to the full commission.

[00:04:25] Speaker 02:
Well, if I had done that, think about it, if I had filed like a petition for reconsideration with the Bureau, then they could have sat on that for another couple of years.

[00:04:35] Speaker 02:
I mean, they were already way beyond the five-month statutory limit.

[00:04:40] Speaker 06:
But you hadn't filed anything objecting to that earlier, had you?

[00:04:46] Speaker 02:
Well, I hadn't known that they were going to treat it, they were going to handle it as a bureau decision.

[00:04:50] Speaker 06:
I mean, you knew the five months had passed at the moment.

[00:04:52] Speaker 02:
The five months, I continually told the commission staff, you know, there's a five-month limit here.

[00:04:58] Speaker 02:
And at one point they said, oh, we didn't know that you expected us to comply with that.

[00:05:03] Speaker 02:
And I was sort of flabbergasted.

[00:05:04] Speaker 06:
So did you file something so it's in writing so we just don't have these oral representations?

[00:05:09] Speaker 02:
Well, certainly in the, well, one of the oddities of the way this thing was handled was there were a lot of sort of meanings between the commission staff and the litigants.

[00:05:18] Speaker 02:
that were not on the record in any case.

[00:05:19] Speaker 06:
So that's one reason why... That's why I asked if you filed it.

[00:05:22] Speaker 02:
I filed in the initial brief that we filed with the Bureau, where we sort of laid out... But that's at the very end of the process, says the Commission in its brief.

[00:05:31] Speaker 02:
Well, that was at the end of sort of the fact-finding process that the Bureau undertook.

[00:05:37] Speaker 02:
They could at that point, and should at that point, have realized that we have to have the full Commission rule on this, and also that we've got a time limit that we should be paying some attention to.

[00:05:47] Speaker 02:
Yes, we did file that, and the Commission, even after we filed that, the Bureau took another seven months, I think, before the actual order came out or longer.

[00:05:55] Speaker 05:
I'm sorry, were you done too?

[00:06:01] Speaker 05:
Let me just say what bothers me about your theory here.

[00:06:05] Speaker 05:
So let's assume that your complaint implicates a 208b1 issue.

[00:06:14] Speaker 05:
Let's just assume that.

[00:06:16] Speaker 05:
That is, charge, classification, regulation of practice, OK?

[00:06:20] Speaker 02:
I don't think you even have to assume that.

[00:06:21] Speaker 05:
Well, why don't you just take it for my purposes.

[00:06:27] Speaker 05:
I don't see anything in 208b3, what in 208b3 or anywhere else suggests that that was intended to be an exception to the longstanding principle in the statute, in our case law, that you can't come to this court without first taking your case to the commission.

[00:06:50] Speaker 02:
Just the very words of the statute, because they say it is a final order.

[00:06:55] Speaker 05:
The action of the commission.

[00:06:57] Speaker 05:
And what that means is they were trying to speed this up, right?

[00:07:01] Speaker 05:
So it means you don't have to file a petition for re-hearing before the commission.

[00:07:05] Speaker 05:
That's what it means.

[00:07:07] Speaker 05:
I mean, for Congress to have suddenly created this enormous exception,

[00:07:16] Speaker 05:
to the statute in our case law that you have to exhaust your remedies before your commission with this language.

[00:07:22] Speaker 05:
I just don't see it there.

[00:07:24] Speaker 02:
Well, where is it?

[00:07:25] Speaker 02:
Well, think about it this way.

[00:07:26] Speaker 02:
What Congress was trying to do was to, and they stated this in the legislative history, that they were trying to give the commission basically one bite at the apple to handle an investigation of this type of complaint.

[00:07:37] Speaker 02:
And they did that.

[00:07:38] Speaker 05:
They said, you've got to do it in five months, right?

[00:07:40] Speaker 05:
And the commission has to do it in five months.

[00:07:43] Speaker 05:
And when it's done, you don't have to file a petition for a hearing.

[00:07:47] Speaker 05:
That expedites this.

[00:07:49] Speaker 02:
Yes, and any order that's in it.

[00:07:51] Speaker 02:
Well, you agree with that, right?

[00:07:52] Speaker 02:
It does expedite it, but any order that's issued terminating the investigation is a final order.

[00:07:58] Speaker 02:
By the Commission.

[00:08:01] Speaker 02:
Well, but the problem here is the Commission violated the rule that the Commission was supposed to act on it in the first place.

[00:08:08] Speaker 02:
So then what do we do?

[00:08:08] Speaker 03:
I don't know, you're saying the Commission can never have delegated authorities?

[00:08:12] Speaker 02:
In this particular in this particular type of complaint, yes, because that's what that's what Congress ordained.

[00:08:18] Speaker 02:
They said for this particular type of complaint, the commission cannot delegate it to a bureau.

[00:08:23] Speaker 05:
It says it says I'm looking at it.

[00:08:26] Speaker 05:
I'm looking at B one.

[00:08:31] Speaker 05:
Okay, except it's right in paragraph one.

[00:08:33] Speaker 05:
The commission, the commission shall, with respect to any of these things, right, do it within five months.

[00:08:40] Speaker 05:
And then three says any order, that is an order of the commission, concluding an investigation, shall be a final order.

[00:08:50] Speaker 05:
So that says the commission has to do it in five months, and its final order is appealable.

[00:08:58] Speaker 05:
There isn't one here.

[00:08:59] Speaker 05:
The problem you have here is the FCC is saying here... No, I think the problem you've got here is that I don't see anything... You're relying completely on this section, right?

[00:09:11] Speaker 05:
Any order concluding an investigation.

[00:09:13] Speaker 05:
That's your whole case, right?

[00:09:14] Speaker 02:
Well, and I'm relying on the fact that the Commission violated the law by screwing up the statutory scheme.

[00:09:21] Speaker 02:
In other words, they were supposed to issue the decision in the first instance, and they didn't.

[00:09:26] Speaker 03:
So where does that leave us in terms of... That's an unreasonable delay claim, which you didn't file.

[00:09:32] Speaker 03:
In other words, let's assume you're right in all of your assumptions.

[00:09:36] Speaker 03:
You file a claim under the APA saying there's an unreasonable delay by the Commission.

[00:09:41] Speaker 03:
Wherever it is in this agency, they're supposed to be doing it within five months, and they haven't done it, and I'm petitioning the court for mandamus relief.

[00:09:50] Speaker 02:
Well, there certainly was a reasonable delay, but you're right.

[00:09:53] Speaker 02:
We did not petition the court for that, and while it certainly bothers me that they ignored the five-month requirement, what bothers me more is that instead of doing what the statute required and making the decision themselves, they completely turned the statute on its head by letting the Bureau do it.

[00:10:11] Speaker 02:
And then that created the need for an appeal within the commission.

[00:10:14] Speaker 02:
If you ignore the language of B3, which says any order.

[00:10:21] Speaker 05:
But the purpose of B3 was to tell the commission in these kinds of cases, presumably, that you better do this yourself, because you've got to get it done in five months.

[00:10:28] Speaker 02:
Well, but there wouldn't be any need for B3.

[00:10:30] Speaker 02:
Think about this, Your Honor.

[00:10:31] Speaker 02:
Any order of the full commission is a final order, which would be directly appealable.

[00:10:36] Speaker 02:
No, I know.

[00:10:36] Speaker 05:
I know you made that argument in the brief.

[00:10:38] Speaker 05:
But there wouldn't be any need.

[00:10:40] Speaker 05:
But if you look at it in context, there is a need for two OAP.

[00:10:44] Speaker 05:
What it did was it provided that in this subset of cases, they had to be handled expeditiously.

[00:10:50] Speaker 05:
That's what this adds.

[00:10:52] Speaker 05:
It's not surplusage at all.

[00:10:55] Speaker 02:
It wasn't – it's not just expedition, because the five-month rule gives you the expedition.

[00:11:00] Speaker 05:
Well, so does the opportunity to come here without filing a petition for a hearing.

[00:11:06] Speaker 05:
That gives you a lot of expedition.

[00:11:09] Speaker 02:
It does, and if you don't apply that rule – So you agree with me, right?

[00:11:13] Speaker 05:
It does.

[00:11:15] Speaker 02:
It does give you expedition, yes.

[00:11:16] Speaker 05:
Yeah, and that's what the purpose of this provision was.

[00:11:18] Speaker 05:
You even agree with that, according to your brief.

[00:11:21] Speaker 05:
So, you know, when you say, if we rule, if we agree with the commission, this whole provision is just surplus, it doesn't add anything?

[00:11:30] Speaker 05:
That's your argument, right?

[00:11:32] Speaker 05:
It does add a dramatic speeding up of cases that fall into this category.

[00:11:38] Speaker 02:
Well, it doesn't add anything if you assume that the commission is actually going to do what the statute required, which was to decide the case itself, which it didn't do.

[00:11:46] Speaker 05:
Well, that goes back to Judge Edwards' question.

[00:11:48] Speaker 05:
You could have asked the commission to expy it or come here, but you didn't do that.

[00:11:53] Speaker 02:
There's definitely an expedition problem, but we're not so worried about that.

[00:11:57] Speaker 02:
What we're concerned about is

[00:11:59] Speaker 02:
The language of the statute that says any order by the commission terminating an investigation is a final order.

[00:12:06] Speaker 02:
And to me, that is as clear as Congress can possibly be that we're taking this out of the usual case where you have to go through the internal appeal process.

[00:12:15] Speaker 02:
And it was for the reason that they didn't want to have litigants have to have two bites at the apple, one at the bureau level and one at the commission level.

[00:12:25] Speaker 06:
So do you see, so I'm clear, the five months start after the final officer exchange?

[00:12:32] Speaker 02:
No, they start when the complaint is filed.

[00:12:34] Speaker 06:
All right, that's what I thought you were going to say.

[00:12:36] Speaker 02:
And it is, and to be honest with you, we didn't push the five months with the Bureau that much because it's a tough time for the Commission to meet.

[00:12:45] Speaker 06:
But at what point did you think you were going to get to the Commission?

[00:12:49] Speaker 02:
I thought the Commission was going to issue the initial ruling, which is what the statute required.

[00:12:53] Speaker 02:
When they didn't do that, I assumed that Section 208B3, because it was a final order, because it was an order terminating the case, was a final order.

[00:13:02] Speaker 06:
So you anticipated a recommended decision from the Enforcement Bureau to the Commission?

[00:13:09] Speaker 02:
Yes, and I actually thought the Bureau was going to do that because this was a novel case.

[00:13:16] Speaker 02:
It was the first, you know, rape case of this type that had ever been presented, and typically those have to be ruled on by the full commission anyway.

[00:13:25] Speaker 02:
So yes, it was a surprise.

[00:13:26] Speaker 02:
And once the Bureau did issue its order, what can I do?

[00:13:29] Speaker 02:
If I filed a petition for reconsideration, and two months had gone by, the Commission could have come back and said, hey, that decision before was a final order, and you've now forfeited your right to go to court.

[00:13:41] Speaker 02:
No, then you can come to court.

[00:13:46] Speaker 02:
I mean, I thought that Congress had been very clear about setting up a specific procedure to handle these cases, that 208B3, you know, the clear language of it says that if it's an order terminating a case, then that's a final order that we would be able to rely upon that.

[00:14:04] Speaker 02:
And for the Commission to say, well, in these paragraphs that we're talking about, it says the Commission, not the delegated authority of the Commission,

[00:14:11] Speaker 02:
Everywhere in the Communications Act it says the Commission, including right in Section 208.

[00:14:17] Speaker 02:
It frequently, or it always says, the Commission shall do something or may do something, and yet the Commission always handles that by delegated authorities, whether that's... Are you assuming you could not contest what the Enforcement Bureau issued?

[00:14:31] Speaker 03:
You could not contest that with the Commission?

[00:14:35] Speaker 03:
Is that your assumption?

[00:14:38] Speaker 02:
I'm not assuming that.

[00:14:39] Speaker 02:
I suppose I could have filed some sort of appeal of what the Bureau did.

[00:14:44] Speaker 02:
But as I said, I think that would have put me in some peril.

[00:14:48] Speaker 03:
Well, forgetting the peril of trying to wander through these agencies and their administrative scheme is an important question.

[00:14:57] Speaker 03:
It's implicit in your argument that you could not, the Bureau decision,

[00:15:03] Speaker 03:
is it doesn't go to the commission.

[00:15:06] Speaker 03:
I could not appeal it to the commission.

[00:15:08] Speaker 03:
I had no such right.

[00:15:11] Speaker 03:
And you can't put me in a bind, therefore, and saying it's not final for judicial review.

[00:15:16] Speaker 03:
Are you saying you could not have taken it to the commission?

[00:15:19] Speaker 02:
No, I'm not saying that.

[00:15:20] Speaker 03:
That's the problem for you.

[00:15:21] Speaker 03:
Because if you acknowledge that it can be to forget the delay,

[00:15:26] Speaker 03:
If you're acknowledging that it can be taken to the Commission, the case law is certainly legion, that we can't act until the Commission

[00:15:46] Speaker 02:
No, I'm saying it is final because of the particular character of the order that was issued.

[00:15:52] Speaker 06:
That's what I thought your argument was.

[00:15:54] Speaker 02:
Yeah, any order terminating a case is a final order.

[00:15:56] Speaker 06:
By the Commission.

[00:15:58] Speaker 02:
Well, by the Commission.

[00:15:59] Speaker 06:
I mean by the Bureau on behalf of the Commission.

[00:16:03] Speaker 06:
The Commission hereby issues this order or decision by the Enforcement Division.

[00:16:10] Speaker 06:
So you took that to be the Commission's decision.

[00:16:13] Speaker 02:
Yes, because that was the only decision that I had.

[00:16:16] Speaker 03:
Why didn't you just say to me, yes, I could have appealed to the commission?

[00:16:22] Speaker 02:
Well, because there is an appellate process within the commission.

[00:16:26] Speaker 03:
Well, that's your problem.

[00:16:27] Speaker 03:
If there really is an appellate process, the commission says, I must say it's a little bit confusing, more than I would have thought.

[00:16:37] Speaker 03:
If there is an appellate process, it's just old administrative law that you've got to follow it.

[00:16:42] Speaker 03:
The delay question is a different question.

[00:16:46] Speaker 03:
And that's a different APA challenge.

[00:16:49] Speaker 03:
Unreasonable delay.

[00:16:50] Speaker 03:
I'm going to take on the agency now.

[00:16:52] Speaker 03:
They're playing games.

[00:16:53] Speaker 03:
What this provision is your claim.

[00:16:55] Speaker 03:
And they're never meeting the five month.

[00:16:57] Speaker 03:
And I'm now trapped in a tube.

[00:16:59] Speaker 03:
And I want mandamus relief.

[00:17:01] Speaker 03:
That's a different theory.

[00:17:04] Speaker 03:
But if you have a right of appeal, if you're acknowledging yes,

[00:17:08] Speaker 03:
I can go to the Commission, and then when they say something is final, then that kills your case.

[00:17:15] Speaker 03:
Because we don't have, we don't have authority to hear it.

[00:17:18] Speaker 02:
Well remember Judge Edwards, you can have a final decision even with the full Commission, and you can still file a petition for reconsideration.

[00:17:24] Speaker 03:
And it's not final if reconsideration is required.

[00:17:27] Speaker 03:
If reconsideration is required in an administrative statute, you don't have a final decision.

[00:17:34] Speaker 02:
I'm not saying it's required.

[00:17:37] Speaker 03:
Then you don't have to go to the agency and you can come to court.

[00:17:40] Speaker 03:
It all depends on whether reconsideration is required.

[00:17:44] Speaker 03:
If it is required, yes, you have to pursue it before you can come to court.

[00:17:48] Speaker 03:
If it's not required, you do not have to avail yourself of it.

[00:17:51] Speaker 02:
But you may.

[00:17:52] Speaker 02:
And I thought what you were saying was that as long as I could possibly have appealed it to the full commission, even though it was a final decision, that I was precluded from going to court.

[00:18:02] Speaker 03:
The problem is the case law says that under these statutes, under 55155C7, it makes the filing of an application review by the commission a condition to judicial review.

[00:18:13] Speaker 02:
That's absolutely true, and this cannot be viewed, I don't think, as anything but an exception to that.

[00:18:20] Speaker 03:
What's the exception?

[00:18:21] Speaker 02:
Because it specifically says any order... Are you talking back to 2088?

[00:18:25] Speaker 03:
Yeah.

[00:18:27] Speaker 03:
I don't see how you get to 208b3, because that's referring to 1 and 2, and 1 and 2 are referring to the Commission.

[00:18:35] Speaker 03:
I mean, that's a weak argument, quite frankly, respectfully.

[00:18:40] Speaker 03:
It's a weak argument, because three refers to one and two.

[00:18:44] Speaker 03:
And one and two clearly say the commission.

[00:18:47] Speaker 02:
Well, but when you say the commission, Your Honor, you're saying the commission as though it doesn't include the delegated authorities, where everywhere else it includes the delegated authorities.

[00:18:54] Speaker 03:
Well, that's where I'm trying to bring you back to what I think is the underlying question here.

[00:19:00] Speaker 03:
You would be fine if you would meet B1.

[00:19:05] Speaker 03:
If you are right that the Bureau's decision on behalf of the Commission is a Commission decision, then you'd be fine.

[00:19:15] Speaker 03:
in my view.

[00:19:16] Speaker 03:
But I'm confused now about what your theory is, and I'm confused about what the agency's response is.

[00:19:21] Speaker 02:
Well, what I'm saying is it is a final decision of the Commission, so I don't know whether you call that a decision of the Commission or who you call it a decision by, but if it's the final decision of the agency, that's, I think, what we need to focus on, and I think that's what Congress intended.

[00:19:39] Speaker 06:
But the problem you face is the non-delegation provision Congress enacted.

[00:19:47] Speaker 06:
I mean, you acknowledged that in your brief.

[00:19:51] Speaker 02:
Well, I mean, the Commission created this whole problem by violating that commission.

[00:19:55] Speaker 06:
No, see, that's the problem here.

[00:19:56] Speaker 06:
I don't think that is correct.

[00:19:58] Speaker 06:
I'm not suggesting everything was perfect here, but it seems to me you file a complaint and you have to say what you want and what provision you are proceeding under.

[00:20:13] Speaker 02:
And we did.

[00:20:13] Speaker 02:
We said we were filing our complaint under sections 201 and 202 of the Act and the commercial... I understand.

[00:20:21] Speaker 06:
So where is the Commission on Notice that you think this is a five-month proceeding?

[00:20:27] Speaker 02:
Because section 208 is the part of the Act that... I agree, but don't you have to say that somewhere?

[00:20:35] Speaker 06:
In other words, a complaint comes in.

[00:20:36] Speaker 06:
No, I'm quite serious about this, and maybe this is a problem for the Commission in terms of its internal rules.

[00:20:42] Speaker 06:
But it can't be that you can negotiate for years and then all of a sudden say to the commission, oh, your five months was up three years ago.

[00:20:53] Speaker 02:
I didn't say that.

[00:20:54] Speaker 06:
No, I know you didn't.

[00:20:55] Speaker 06:
This is my hypothetical.

[00:20:57] Speaker 06:
But at some point, if you want to go under this expedited proceeding, don't you have to make it clear that your complaint is to be processed under that?

[00:21:09] Speaker 06:
And if it isn't,

[00:21:11] Speaker 06:
Either you file something before the commission or you come to the court and say the commission is acting beyond its authority.

[00:21:19] Speaker 06:
I mean, it's an odd situation.

[00:21:21] Speaker 05:
Well, actually, it seems to me, just to pick up on what Judge Rogers is saying here, I mean, I think your problem is even a little more serious because, so am I right, you didn't say to the commission this was a 2-OAP case then, right?

[00:21:35] Speaker 02:
I said it was a complaint about a common carrier charge, and that's what that 208 says.

[00:21:40] Speaker 05:
Right, but your theory has been, but what do you do, but why, 155 says, 155 says, when necessary, the proper functioning of the HC, the commission may delegate any of its functions, and then it says, accept any action, and one of them is 208B.

[00:22:01] Speaker 05:
So if you thought this was a 208B case, why didn't you tell the commission the moment it sent this to the Bureau, you can't do that?

[00:22:09] Speaker 02:
Because... Do you see my point?

[00:22:12] Speaker 02:
Yeah.

[00:22:13] Speaker 05:
I mean, that would have been the place to put the commission on notice that it had to get this done within five months, but it couldn't delegate it.

[00:22:21] Speaker 02:
Well, I actually didn't anticipate or expect that the five commissioners would be handling the processing of this complaint.

[00:22:28] Speaker 06:
Why not?

[00:22:29] Speaker 02:
You have to assume that.

[00:22:30] Speaker 06:
You're seeking that.

[00:22:31] Speaker 06:
You're seeking the benefit of that.

[00:22:33] Speaker 02:
Right.

[00:22:34] Speaker 02:
There's actually a rule.

[00:22:35] Speaker 02:
It's section 0.331, which tells the Enforcement Bureau what authority it has.

[00:22:41] Speaker 02:
And it says in cases of 208B complaints, it has to refer the decision to the full commission.

[00:22:49] Speaker 02:
That's what I thought would happen.

[00:22:51] Speaker 02:
If they would gather the facts, they would conduct the proceeding, they might even make a recommendation, but the decision would be made by the full commission, which is what the commission's own internal delegation of authority rules require.

[00:23:03] Speaker 02:
They didn't do that.

[00:23:04] Speaker 02:
That was at the end of this whole process that you've described.

[00:23:08] Speaker 02:
judge rogers where we went back and forth there were discussions or mediations there were there were interrogatories and so forth i thought it was appropriate for the bureau to be handling that but the decision was supposed to be made by the full commission i guess i just don't understand the process in terms of if you want a decision by the full commission in five months you have to start there

[00:23:37] Speaker 06:
If you're going to work with the commission through a delegation, that's a different procedure.

[00:23:45] Speaker 06:
That's all I'm trying to understand.

[00:23:46] Speaker 06:
If Congress had in mind, we want this done in five months, the commissioners have to be on notice.

[00:23:53] Speaker 06:
They've got to readjust their docket.

[00:23:57] Speaker 02:
But I didn't think that I had, well, first of all, I actually did tell the Bureau this, as I said.

[00:24:02] Speaker 02:
And they said, oh, we didn't know that you wanted that.

[00:24:04] Speaker 02:
I actually didn't think I had to tell them that the statute requires you to do something in part one.

[00:24:08] Speaker 06:
Even in the district court, you file a complaint, and if you want some expedited processing, you tell the district court that.

[00:24:16] Speaker 06:
Otherwise, you get in line.

[00:24:19] Speaker 02:
But if there's a statute that says this... Well, suppose there is a statute.

[00:24:23] Speaker 02:
Suppose there is a statute?

[00:24:24] Speaker 06:
Yeah.

[00:24:24] Speaker 06:
I mean, I'm thinking of a district court hypothetical.

[00:24:27] Speaker 06:
You say the district court this has... We have cases where the statute tells us we have to act within 72 hours.

[00:24:34] Speaker 06:
All right, and that statute is cited to us.

[00:24:40] Speaker 06:
No one assumes we remember that in the back of our head.

[00:24:43] Speaker 06:
That's all I'm getting at.

[00:24:44] Speaker 02:
Okay, and really, I'm not complaining that much about their failure to act on it within five months.

[00:24:50] Speaker 02:
What I am saying is I think that once the Bureau took it upon itself to violate the statute and issue a decision- But that's the point at which it seems to me you have to say something.

[00:25:01] Speaker 02:
Well, I said something seven months before that.

[00:25:03] Speaker 06:
In writing.

[00:25:04] Speaker 02:
In writing, I said it seven months before.

[00:25:06] Speaker 06:
Where was it?

[00:25:06] Speaker 02:
That was at the end of my initial brief.

[00:25:08] Speaker 06:
Oh, I know.

[00:25:09] Speaker 06:
That's way down the road.

[00:25:10] Speaker 02:
No, that was, but this was the initial brief before the Bureau.

[00:25:13] Speaker 06:
I understand, but you have been negotiating this.

[00:25:17] Speaker 06:
When, you filed your complaint.

[00:25:19] Speaker 02:
In 2013.

[00:25:20] Speaker 02:
That's right.

[00:25:22] Speaker 06:
And when did you file your first brief?

[00:25:25] Speaker 02:
It was like 2015.

[00:25:26] Speaker 06:
That's right.

[00:25:28] Speaker 06:
That's not,

[00:25:29] Speaker 02:
But Judge Rogers, I'm not here.

[00:25:31] Speaker 06:
No way the commission could act within five months.

[00:25:35] Speaker 02:
But I'm not complaining about that.

[00:25:37] Speaker 02:
All I'm saying here is that, I mean, I wanted a decision from the commission, from somebody at the commission.

[00:25:43] Speaker 02:
The full commission should have acted on it, but it didn't.

[00:25:47] Speaker 02:
The Bureau acted on it, and B3 says, any order terminating a case is a final order of commission.

[00:25:52] Speaker 06:
Well, the argument might be that you had a chance when your complaint was filed to insist on a 208B process.

[00:25:59] Speaker 06:
All right?

[00:26:00] Speaker 06:
You didn't.

[00:26:01] Speaker 02:
But there's no other process that I could have.

[00:26:04] Speaker 02:
That's all there is.

[00:26:05] Speaker 02:
That's all the act affords a complainant that's challenging a common-curricular rate.

[00:26:12] Speaker 06:
I'm done.

[00:26:13] Speaker 06:
All right.

[00:26:13] Speaker 06:
Let us hear from the commission, and then we'll give you some time.

[00:26:16] Speaker 02:
All right.

[00:26:16] Speaker 02:
Thank you, Your Honor.

[00:26:26] Speaker 04:
Good morning.

[00:26:26] Speaker 04:
May it please the court.

[00:26:27] Speaker 04:
Maureen flood for the Federal Communications Commission.

[00:26:31] Speaker 03:
Before you start, that's right.

[00:26:32] Speaker 03:
Yes.

[00:26:32] Speaker 03:
Could you please tell us because you had looking at your responses and I don't know what you mean to say.

[00:26:39] Speaker 03:
I don't mean to say.

[00:26:41] Speaker 03:
Is this?

[00:26:41] Speaker 03:
The matter that's in dispute here.

[00:26:46] Speaker 03:
Within the compass of non delegatable authorities or delegatable authorities under 155.

[00:26:53] Speaker 04:
It is encompassed within delegated authorities because NTCH's complaint was not subject to Section 208B.

[00:27:01] Speaker 03:
Well, there was one part of it that you hedged on and you said, well, we haven't really decided that.

[00:27:09] Speaker 03:
And that's what confused me, like one piece of it may have been within non-delegated.

[00:27:15] Speaker 03:
I mean, you're not taking a clear position, which is really not acceptable.

[00:27:20] Speaker 04:
Well, Your Honor, we're not taking a clear position because the Commission has never decided on that issue.

[00:27:24] Speaker 04:
So let me start by saying the data roaming portion of NTCH's complaint clearly was not subject to Section 208B.

[00:27:32] Speaker 04:
In fact, it wasn't subject to Section 208 because when NTCH filed its complaint, data roaming was a Title I service.

[00:27:39] Speaker 03:
And it could be delegated.

[00:27:40] Speaker 04:
That one could be delegated.

[00:27:42] Speaker 04:
And in fact, the commission has a rule, 20.12e, that sets up a specific process outside section 208 to resolve data roaming complaints.

[00:27:52] Speaker 03:
So the only- All right.

[00:27:53] Speaker 03:
Let's go down.

[00:27:54] Speaker 03:
Let's assume that person.

[00:27:55] Speaker 03:
Let's assume at least some portion of this case is within the permissible delegated authority so it could go to the bureau.

[00:28:03] Speaker 04:
Yes.

[00:28:08] Speaker 03:
that when the Bureau issues its order, as far as the Commission is concerned, it's over or not?

[00:28:14] Speaker 04:
No, Your Honor.

[00:28:14] Speaker 04:
Well, first of all, the data roaming.

[00:28:16] Speaker 04:
Are we talking about the data roaming portion?

[00:28:17] Speaker 03:
I'm talking about whatever you think.

[00:28:19] Speaker 03:
Let's talk about voice.

[00:28:20] Speaker 03:
Well, whatever you think could be delegated in this case, stay there first.

[00:28:27] Speaker 03:
So you think part of it could be delegated to the Bureau, right?

[00:28:30] Speaker 04:
The data roaming portion, because it fell outside Section 208.

[00:28:33] Speaker 03:
Okay, so you think it could be delegated when the Bureau issues its decision.

[00:28:38] Speaker 03:
Is that it?

[00:28:39] Speaker 03:
Commissions done?

[00:28:40] Speaker 04:
No, Your Honor.

[00:28:41] Speaker 04:
First of all, it's not subject to Section 208.

[00:28:44] Speaker 04:
But, Your Honor, to answer that specific question, under the data-roaming rule, which sets up a complaint process outside Section 208, a Bureau order, like any other order, could, has to be... No, wait.

[00:28:57] Speaker 03:
It's important.

[00:28:59] Speaker 03:
Don't say could or has to be.

[00:29:01] Speaker 03:
It's real.

[00:29:01] Speaker 03:
That's one of the problems here.

[00:29:03] Speaker 03:
Must it or... They don't know.

[00:29:05] Speaker 03:
Obviously, and I'm not sure any of us do either.

[00:29:08] Speaker 03:
When the bureau issues an order, is there some statutory or regulatory provision that says no matter how strong the language is in that order, it is not final unless and until the commission acts on it?

[00:29:22] Speaker 04:
There is no exception to the requirement in section 150, or in section 5C7 of the Act.

[00:29:29] Speaker 04:
An application for review to the full commission is a condition precedent to judicial review of an order issued on delegated authority.

[00:29:38] Speaker 04:
Counsel for NTCH is trying to assert that section 208B3... No, no, we understand that.

[00:29:45] Speaker 03:
What he's really asserting in fairness to him is the language of the order.

[00:29:49] Speaker 03:
Looks like this is the Commission.

[00:29:50] Speaker 03:
We're issuing this on behalf of the Commission, as if to suggest it's done.

[00:29:55] Speaker 03:
There's nothing there, which seems to me it would be fair, apart from the five months that you never meet, to say, and if you don't like it, you have to appeal to the Commission, otherwise you can't go to court.

[00:30:05] Speaker 04:
Your Honor, it's an order issued on delegated authority, and there's no exception from 5C7 of the Act to provide that an order by the Enforcement Bureau resolving a roaming complaint or any other complaint is exempt from Section 5C7 of the Act.

[00:30:23] Speaker 03:
That isn't what I'm asking.

[00:30:23] Speaker 03:
I'm just trying to understand what folks on the petitioner's side are facing.

[00:30:29] Speaker 03:
They get an order, it looks like it says, on behalf of the Commission, this is it.

[00:30:35] Speaker 03:
Why doesn't that order say this is what we think if you want to contest it?

[00:30:41] Speaker 03:
You go to the commission.

[00:30:42] Speaker 03:
Otherwise, you're not going to be able to go to court.

[00:30:44] Speaker 03:
Why don't you give them that notice?

[00:30:45] Speaker 04:
Because, Your Honor, the order says it is by the Enforcement Bureau, not by the commission.

[00:30:51] Speaker 03:
It says on behalf of the commission.

[00:30:53] Speaker 04:
On behalf of the commission.

[00:30:54] Speaker 04:
But that's what every order issued on delegated authority says.

[00:30:57] Speaker 03:
That doesn't mean they're fair.

[00:30:58] Speaker 03:
That means that's what you're doing.

[00:31:00] Speaker 03:
What I'm asking is, why don't you do something that's fair, which says, we're doing this on behalf of the commission.

[00:31:05] Speaker 03:
But if you want to appeal the commission, you can.

[00:31:07] Speaker 03:
And if you think you want to get to court, you must.

[00:31:09] Speaker 04:
Your Honor, every order issued on delegated authority says, issued by the Enforcement Bureau, the Media Bureau, it's well established that there is no exception to the application for review requirement in Section 5C7.

[00:31:23] Speaker 04:
This order is no different than any other order resolved with a complaint by the Enforcement Bureau.

[00:31:29] Speaker 03:
What you're saying is you give bad notice all the time.

[00:31:30] Speaker 04:
That's not my question.

[00:31:31] Speaker 04:
The statute gives them notice, Your Honor.

[00:31:32] Speaker 03:
All right.

[00:31:33] Speaker 06:
Let's turn it to voice, if you will, for a moment.

[00:31:36] Speaker 06:
All right.

[00:31:37] Speaker 06:
I come in with my complaint.

[00:31:39] Speaker 06:
I want an expedited proceeding.

[00:31:45] Speaker 06:
All right?

[00:31:46] Speaker 06:
What happens?

[00:31:47] Speaker 04:
Well, first of all, as you pointed out, the petitioners in their complaint did not invoke... But suppose they had.

[00:31:53] Speaker 05:
We're asking you the question, what happens when someone brings a case that clearly falls under 208B?

[00:31:59] Speaker 05:
What does the commission do?

[00:32:01] Speaker 04:
This is not that case, but if the case did fall under Section 208B, what would happen is the Enforcement Bureau would immediately notify the Commission that it has a Section 208B complaint and it would create an expedited administrative process

[00:32:24] Speaker 04:
so that the Bureau would send a recommendation up to the Commission in an order for the Commission to vote within five months.

[00:32:31] Speaker 06:
Is that by rule?

[00:32:33] Speaker 04:
There is no rule in effect on that, but the Enforcement Bureau is going to codify one, but that is practice.

[00:32:39] Speaker 06:
So when this complaint came in, and just thinking about this case, I thought bureaucratically, it was assigned to the Enforcement Division.

[00:32:50] Speaker 06:
All right?

[00:32:51] Speaker 06:
Yes.

[00:32:52] Speaker 06:
And the first brief file talks about 208B.

[00:32:56] Speaker 06:
The first brief, yes.

[00:32:59] Speaker 06:
Your brief says that.

[00:33:00] Speaker 06:
OK.

[00:33:01] Speaker 06:
So then my question is, what happens then?

[00:33:05] Speaker 04:
So the first time petitioner raised the 208B issue was 22 months into the proceeding.

[00:33:12] Speaker 06:
I'm with you, counsel.

[00:33:13] Speaker 06:
I read your brief and what you said at the end of the process.

[00:33:16] Speaker 06:
I'm not debating that.

[00:33:17] Speaker 06:
I want to know, in the first brief,

[00:33:20] Speaker 06:
That's filed.

[00:33:22] Speaker 06:
Council says 208B.

[00:33:25] Speaker 06:
Now what happens?

[00:33:27] Speaker 04:
At that point, the Enforcement Bureau continued under its presumption that the data roaming piece was not subject to 208, and that the voice roaming piece was subject to Section 208A, because that was their assumption at the beginning of the proceeding.

[00:33:43] Speaker 04:
Based on what?

[00:33:45] Speaker 04:
Based on the fact that, two things.

[00:33:48] Speaker 04:
The Commission itself had never ruled on the issue of whether voice roaming was subject to Section 208A or Section 208B.

[00:33:55] Speaker 04:
So the Bureau had to look for guidance in the Commission's rules and precedent.

[00:33:59] Speaker 04:
The Commission had, in prior orders, interpreted Section 208B to only apply to services that were tariffed or could have been tariffed.

[00:34:08] Speaker 04:
CMRS services were de-tariffed back in 1993.

[00:34:12] Speaker 04:
This is also mentioned in the Orloff case, which we cite in our brief.

[00:34:17] Speaker 04:
The Bureau reasonably determined that the case was subject to Section 208, and petitioner did not dispute that fact.

[00:34:26] Speaker 04:
Petitioner after the five-month period passed, if this was a commission, if the complaint had to be reviewed by the commission because it was a Section 208B complaint, presumably the petitioner would have come in and asked the Enforcement Bureau to refer the matter to the commission at that point or at least raise the issue with the Enforcement Bureau.

[00:34:44] Speaker 04:
It didn't.

[00:34:45] Speaker 04:
As you pointed out, this is an unreasonable delay case.

[00:34:47] Speaker 06:
So when you file a complaint with the FCC,

[00:34:51] Speaker 06:
It automatically is referred to the Enforcement Bureau.

[00:34:55] Speaker 04:
It goes to the, it's filed to the Enforcement Bureau.

[00:34:58] Speaker 06:
No, no.

[00:34:59] Speaker 06:
I just need to know.

[00:35:00] Speaker 06:
I'm out of town or I practice abroad.

[00:35:05] Speaker 06:
I file a complaint with the FCC.

[00:35:08] Speaker 06:
I mail it to the FCC.

[00:35:11] Speaker 06:
What happens?

[00:35:13] Speaker 04:
It goes to the enforcement bureau.

[00:35:15] Speaker 06:
So it automatically goes to the enforcement bureau?

[00:35:19] Speaker 04:
Yes.

[00:35:19] Speaker 04:
The commissioner's legal advisors don't decide these complaints.

[00:35:22] Speaker 04:
I understand that.

[00:35:23] Speaker 06:
I want to know.

[00:35:24] Speaker 06:
So I get a notice that this is now before the enforcement division.

[00:35:30] Speaker 06:
Yes.

[00:35:30] Speaker 06:
Is that right?

[00:35:32] Speaker 06:
So at that point, is it the Commission's position that I am obligated to tell the Enforcement Division I want to proceed under 208B?

[00:35:41] Speaker 04:
It certainly helps the process, but putting that aside, Your Honor, the issue here is, can this Court assert jurisdiction over this order, notwithstanding the restriction in Section 5C7, to

[00:35:58] Speaker 04:
remedy this alleged error that was made by the Enforcement Bureau.

[00:36:02] Speaker 06:
Hold on.

[00:36:03] Speaker 06:
I'm not even there.

[00:36:04] Speaker 06:
I'm still before the Commission.

[00:36:06] Speaker 06:
My complaint has been administratively sent over to the Enforcement Division.

[00:36:12] Speaker 06:
I say, in writing to the Enforcement Division, my complaint is to be processed under 208B.

[00:36:23] Speaker 06:
then what happens?

[00:36:24] Speaker 04:
In that circumstance, the Enforcement Bureau would determine whether or not it's the Section 208B complaint.

[00:36:30] Speaker 04:
And if it believed that it was, it would let the Commission know that there was a 208B complaint.

[00:36:37] Speaker 04:
It would put it on a fast-track administrative process so the Commission could vote and order before the five-month period ended.

[00:36:45] Speaker 06:
And that's all set out in the rules somewhere?

[00:36:47] Speaker 04:
It's not set out in the rules.

[00:36:48] Speaker 04:
It is a Bureau-level practice.

[00:36:50] Speaker 06:
All right, so when do I get notice that the Enforcement Bureau has decided my complaint is not a 208B complaint?

[00:37:02] Speaker 04:
The Enforcement Bureau would get back to you immediately because if they dispute... Do they send me a letter?

[00:37:11] Speaker 04:
they would most likely call you because at that point, if you file your complaint, they would want to give you an immediate response.

[00:37:21] Speaker 04:
And so my understanding is that they would call you and that if you disputed their determination that it was not subject to Section 208B, that they at that point probably would issue a written letter or something like that so you could challenge it up to the full commission.

[00:37:38] Speaker 06:
Now, historically, do you know whether or not the Enforcement Bureau has been taking the position that the word tariff or like proceeding basically doesn't apply to this type of complaint against an individual entity's rates?

[00:37:56] Speaker 04:
it's not just the rates, Your Honor, it's voice roaming and data roaming rates, although actually... I'm only talking about voice, all right?

[00:38:04] Speaker 04:
Okay.

[00:38:04] Speaker 06:
I'm trying to make that clear from the beginning.

[00:38:07] Speaker 04:
Okay.

[00:38:07] Speaker 04:
With respect to the voice roaming rates, Petitioner's Council is correct that this was the first formal voice roaming complaint filed with the Commission.

[00:38:17] Speaker 04:
So it was

[00:38:18] Speaker 04:
An issue that the Enforcement Bureau was dealing with for the first time, it had to follow commission precedent, and commission precedent said that Section 208B broadly only applies to tariffed services or services that could have been tariffed.

[00:38:34] Speaker 04:
The Enforcement Bureau reasonably determined that because CMRS services were de-tariffed in 1993, that this was a Section 208 case, 208A case.

[00:38:46] Speaker 06:
So there is no way to move this type of complaint under 208B.

[00:38:57] Speaker 04:
That's correct, Your Honor.

[00:38:59] Speaker 04:
And if petitioners believed, again, that this was subject to Section 208B, presumably they would have raised that with the Enforcement Bureau, or they would have raised it with the Commission, and they could have, if the agency did not respond to that argument quickly enough, filed a petition for a writ of mandamus with the Court.

[00:39:19] Speaker 04:
Now if petitioners think that the Commission, that the Enforcement Bureau, rather, got

[00:39:23] Speaker 04:
it wrong in deciding their complaint under Section 208A, they should raise that issue in an application for review before the full Commission.

[00:39:35] Speaker 04:
But the Enforcement Bureau acting on delegated authority had to do the best that it could.

[00:39:39] Speaker 04:
A petitioner never put Section 208, never invoked Section 208B1 in its complaint, and it never disputed the fact that the Enforcement Bureau was proceeding and exceeded the Section 208B deadline.

[00:39:52] Speaker 03:
Did they get notice of that?

[00:39:53] Speaker 03:
Did they know that that's how they were proceeding?

[00:39:55] Speaker 03:
Do you know that they got notice?

[00:39:58] Speaker 04:
I do not know that they got notice, but presumably if they thought it was subject to Section 208B, they would have raised it.

[00:40:03] Speaker 03:
I understand your argument there.

[00:40:05] Speaker 03:
I'm really trying to just think about the administrative process, which is

[00:40:10] Speaker 03:
For those of us who consume your processes, which seem to be less than ideal, they don't have notice of this.

[00:40:16] Speaker 03:
You say there's no codification of these procedures you're now talking about.

[00:40:21] Speaker 03:
So none of this is known to anybody.

[00:40:23] Speaker 03:
Where the cases are being tracked and what the time requirements are.

[00:40:28] Speaker 04:
At that point, there were no formal rules.

[00:40:31] Speaker 03:
There still aren't any.

[00:40:32] Speaker 04:
That's correct.

[00:40:33] Speaker 04:
It's my understanding that the Enforcement Bureau, to avoid confusion, is going to codify rules.

[00:40:40] Speaker 04:
That being said, Your Honor, if the petitioners, again, thought that this was a Section 208B case, presumably they would have raised it.

[00:40:48] Speaker 04:
I mean, the Enforcement Bureau had to make a determination on the basis of the complaint

[00:40:53] Speaker 04:
whether or not this is a Section 208A or Section 208B complaint.

[00:40:57] Speaker 04:
And given the Commission precedent, they reasonably put it under Section 208A.

[00:41:01] Speaker 04:
Part of this issue could have been avoided if petitioners

[00:41:05] Speaker 04:
told the Enforcement Bureau when they filed their complaint whether they thought this was a Section 208A or Section 208B case.

[00:41:14] Speaker 06:
And so your point is that the Bureau would have advised that this simply is not 208B eligible?

[00:41:22] Speaker 04:
That's correct.

[00:41:23] Speaker 06:
As to both of your counts?

[00:41:28] Speaker 04:
That's correct, yeah.

[00:41:30] Speaker 03:
Based on what?

[00:41:31] Speaker 03:
How do you make that assertion?

[00:41:32] Speaker 03:
How do you know the Bureau would have advised them of anything?

[00:41:34] Speaker 04:
Because, Your Honor, it was the Bureau's position, because the Bureau proceeded under Section 208A.

[00:41:39] Speaker 04:
No, no, no.

[00:41:40] Speaker 03:
That's not my question.

[00:41:41] Speaker 03:
How do you know that they would have advised you, no, this is what we're doing.

[00:41:46] Speaker 03:
We're not going to do what you prefer?

[00:41:49] Speaker 03:
Because there are no processes, in effect.

[00:41:51] Speaker 04:
There are no processes.

[00:41:52] Speaker 04:
I cannot... You don't know.

[00:41:56] Speaker 04:
I don't know, Your Honor.

[00:41:57] Speaker 03:
I don't know.

[00:41:57] Speaker 03:
We don't know what would happen.

[00:41:58] Speaker 03:
I mean, that's the unfairness of all of this.

[00:42:00] Speaker 03:
That's different from the legal questions that

[00:42:03] Speaker 03:
It's just patently unfair that those who are petitioning the commission have no idea of all the things that you've asserted.

[00:42:11] Speaker 04:
Well, Your Honor, if it's unfair, then the petitioners should file an application for review of the commission.

[00:42:15] Speaker 03:
I understand what attorneys could do and spend more billable hours trying to sort through this.

[00:42:20] Speaker 03:
I'm just trying to understand why in heaven's name you don't have procedures laid out so they will understand what they're facing.

[00:42:27] Speaker 04:
I understand that, Your Honor, but presumably if Petitioner thought that this complaint was subject to Section 208B1, they would have raised it with the Enforcement Bureau.

[00:42:35] Speaker 04:
And what this really boils down to here is Petitioner is saying, I am harmed by the Enforcement Bureau's decision to process my complaint under Section 208A.

[00:42:44] Speaker 04:
The delay was unreasonable, and I am asking the Court to remedy the Enforcement Bureau's error.

[00:42:49] Speaker 04:
by circumventing the requirement in Section 5C7 that I file an application for review and having you hear my case.

[00:42:57] Speaker 04:
If the petitioner was so concerned about delay, and I know I keep hammering this point, but it begs the question of why they didn't come in and tell the Enforcement Bureau

[00:43:06] Speaker 04:
at five months and one day that they thought their complaint was a Section 208B-1 complaint and that they wanted it referred to the full commission.

[00:43:17] Speaker 04:
Instead, they decided to adopt this novel reading of Section 208B-3, which is not an exception from Section 5C7 of the Act.

[00:43:28] Speaker 04:
There's nothing in Section 208B that refers to Bureau-level orders.

[00:43:32] Speaker 06:
Well, hopefully

[00:43:34] Speaker 06:
powers that be are going to provide some notice such that you just say voice roaming is not eligible because it's de-tariffed and neither is data under Title I, so 208 is not available.

[00:43:50] Speaker 06:
And then that can be challenged and we'll go from there.

[00:43:54] Speaker 04:
That's correct.

[00:43:55] Speaker 04:
That would give the Commission an opportunity to pass on this policy issue.

[00:43:58] Speaker 06:
Because at this point, it's difficult to see what is going to reach the Commission under 208B.

[00:44:04] Speaker 06:
And there was some purpose that Congress had in mind.

[00:44:07] Speaker 06:
That's all we're getting at.

[00:44:08] Speaker 04:
I understand, Your Honor.

[00:44:09] Speaker 06:
All right.

[00:44:09] Speaker 06:
Thank you, Council.

[00:44:10] Speaker 06:
Thank you.

[00:44:12] Speaker 06:
Council for the Intervener?

[00:44:16] Speaker 06:
I think Council for the Intervener has a couple of minutes.

[00:44:22] Speaker 01:
May it please the court, David Haga for intervener Verizon.

[00:44:26] Speaker 01:
And Verizon does not have a position on the first question.

[00:44:29] Speaker 06:
I was going to say, yes, exactly.

[00:44:30] Speaker 01:
So I'd be happy to address the underlying merits if the court would like, but no.

[00:44:34] Speaker 06:
No, I think not.

[00:44:34] Speaker 06:
All right.

[00:44:35] Speaker 06:
Thank you.

[00:44:35] Speaker 06:
Thank you.

[00:44:36] Speaker 06:
All right.

[00:44:37] Speaker 06:
Counsel for petition.

[00:44:42] Speaker 02:
Your Honor, I do have to take issue with one of the statements the Council for the FCC made.

[00:44:47] Speaker 02:
The application of 202-08-B applies to common carrier charges that either are tariffed or

[00:44:58] Speaker 02:
or would have been tariffed but for a forbearance by the Commission.

[00:45:02] Speaker 02:
And back in 1994, the Commission expressly stated that it was forbearing from requiring tariff requirements on mobile services like this.

[00:45:13] Speaker 02:
So it was a precise case where the Commission said this would have been tariff or forbearing, and that leaves it squarely within the 208B bailiwick.

[00:45:23] Speaker 02:
And the business about us having to tell the Commission that we wanted it to be under... Well, first of all, the Commission is saying, so they took this under 208A because they thought it was not a previously tariff service that had been foreborn from.

[00:45:38] Speaker 02:
That's plainly wrong.

[00:45:40] Speaker 02:
And the commission never at any point told me or anybody else involved in the case that they were treating this as a 208A case.

[00:45:48] Speaker 02:
This whole procedure that was described to you, Your Honor, it's just, it's absolutely news to me.

[00:45:53] Speaker 02:
Nobody ever told me about it.

[00:45:55] Speaker 02:
And I've got another companion case that's coming up the pipeline.

[00:45:58] Speaker 05:
I just don't understand why when you look at this statute and you follow your complaint,

[00:46:02] Speaker 05:
You wouldn't say to the Commission, I'm filing this under 208B.

[00:46:07] Speaker 02:
Well, I said I was filing it under 201 and 202, and 208B is the part of the statute that handles 201 and 202 complaint.

[00:46:14] Speaker 05:
But how would the Commission know that it was supposed to expedite it unless you told them that you thought this was a rate of one of these four things?

[00:46:22] Speaker 02:
I mean – Because it was – because 201B – You agree.

[00:46:26] Speaker 05:
It would have been – if you had done it, you would have – were you here for our last argument?

[00:46:30] Speaker 05:
Yes, I was.

[00:46:32] Speaker 02:
Same point.

[00:46:33] Speaker 05:
We could have avoided this whole thing if you had simply said, this is a 208B case.

[00:46:38] Speaker 05:
I didn't think I needed to tell the Commission.

[00:46:40] Speaker 05:
That's exactly what counsel said in the last case.

[00:46:42] Speaker 02:
Well, it was a case that involved a challenge to the reasonableness of a common carrier rate.

[00:46:48] Speaker 02:
That's 208B1.

[00:46:49] Speaker 02:
I didn't have to tell the Commission.

[00:46:52] Speaker 06:
Well, in any event, we'll take the case under advice.

[00:46:56] Speaker 02:
Thank you.