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NTCH, Inc. v. Federal Communications Commission

United States Court of Appeals, District of Columbia Circuit

December 15, 2017

NTCH, Inc., Petitioner
v.
Federal Communications Commission and United States of America, Respondents Cellco Partnership, d/b/a Verizon Wireless, Intervenor

          Argued October 16, 2017

         On Petition for Review of an Order of the Federal Communications Commission

          Donald J. Evans argued the cause for petitioner. With him on the briefs was Ashley Ludlow. Jonathan Markman entered an appearance.

          Maureen K. Flood, Counsel, Federal Communications Commission, argued the cause for respondents. On the brief were Robert B. Nicholson and Jonathan H. Lasken, Attorneys, U.S. Department of Justice, David M. Gossett, Deputy General Counsel, Richard K. Welch, Deputy Associate General Counsel, and Matthew J. Dunne, Counsel. Jacob M. Lewis, Associate General Counsel, entered an appearance.

          David L. Haga argued the cause for intervenor. With him on the brief was Christopher M. Miller. Andre J. Lachance entered an appearance.

          Before: Rogers and Tatel, Circuit Judges, and Edwards, Senior Circuit Judge.

          OPINION

          EDWARDS, SENIOR CIRCUIT JUDGE

         NTCH, Inc. ("NTCH"), a regional Commercial Mobile Radio Service carrier in a number of markets around the United States, petitions this court for review of an order issued by the Enforcement Bureau ("Bureau") of the Federal Communications Commission ("Commission"). The Bureau acted pursuant to delegated authority under 47 U.S.C. § 155(c)(1), but NTCH never sought Commission review of the Bureau order before petitioning for judicial review. The Communications Act of 1934 ("Act") requires complaining parties who seek to challenge any such action taken by the Bureau to first seek review with the Commission as "a condition precedent to judicial review." 47 U.S.C. § 155(c)(7) (2012). Therefore, this court has no jurisdiction to entertain NTCH's challenge to the order issued by the Bureau. Int'l Telecard Ass'n v. FCC, 166 F.3d 387, 388 (D.C. Cir. 1999) (per curiam).

         NTCH argues that because the Bureau's order concluded an investigation into the lawfulness of a charge, classification, regulation, or practice under 47 U.S.C. § 208, it was a "final order" under § 208(b) and, thus, subject to judicial review. NTCH is mistaken. Even if NTCH's claim falls within the compass of § 208(b), this court still does not have jurisdiction to address it. As we explain below, the order issued by the Bureau is not an order of the Commission. And without a final order from the Commission, we have no jurisdiction to address NTCH's petition for review.

         Because NTCH failed to seek Commission review before petitioning for review in this court, we are constrained to dismiss the petition for lack of jurisdiction.

         I. Background

         This case concerns NTCH's attempt to challenge Commission rules governing disputes over voice and data "roaming" rates. "[W]hen wireless subscribers travel outside the range of their own carrier's network and use another carrier's network infrastructure to make a call, " the rate the latter carrier charges the "roaming" carrier's customer is the "roaming" rate. Cellco P'ship v. FCC, 700 F.3d 534, 537 (D.C. Cir. 2012). Voice roaming allows customers to make telephone calls when they go outside of their mobile operator's cellular network; data roaming, in turn, allows customers to access data services, such as the internet. Smaller carriers such as NTCH, with only limited networks, have obvious concerns about the roaming charges they may absorb on behalf of their wireless subscribers.

         The Commission issued orders governing voice roaming in 2007, see In the Matter of Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers, 22 FCC Rcd. 15817 (2007), and 2010, see In the Matter of Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services, 25 FCC Rcd. 4181 (2010) (collectively, "Voice Roaming Orders"). In 2011, the Commission issued an order governing data roaming. See In the Matter of Reexamination of Roaming Obligations of Commercial Mobile Radio Service Providers and Other Providers of Mobile Data Services ("Data Roaming Order"), 26 FCC Rcd. 5411 (2011). In 2015, the Commission issued an order classifying retail broadband internet access service as a "telecommunications service" subject to common carriage regulation under Title II of the Act. See In the Matter of Protecting and Promoting the Open Internet ("Open Internet Order"), 30 FCC Rcd. 5601, 5743 ¶ 331 (2015), aff'd, U.S. Telecom Ass'n v. FCC, 825 F.3d 674 (D.C. Cir. 2016).

         In its Voice Roaming Orders, the Commission found that § 208 applied to the provisioning of voice roaming as a common carrier service. In the Matter of NTCH, Inc., Complainant v. Cellco P'ship d/b/a Verizon Wireless, Defendant, 31 FCC Rcd. 7165, 7167-68 ¶ 7 (2016). The Commission's rules provide that the Bureau resolves complaints filed under § 208. Compare 47 C.F.R. § 0.311 (2016) (stating that "[t]he Chief, Enforcement Bureau, is delegated authority to perform all functions of the Bureau, described in § 0.111, " except for certain matters not germane here and "[o]rders concluding an investigation under section 208(b) of the Communications Act and orders addressing petitions for reconsideration of such orders, " which "shall be referred to the Commission en banc for disposition"), with id. § 0.111(a)(1) (stating that the Bureau shall "[r]esolve complaints, including complaints filed under section 208 of the Communications Act, regarding acts or omissions of common carriers (wireline, wireless and international)"); see also 47 U.S.C. § 155(c)(1) (2012) (stating that the Commission "may . . . delegate any of its functions, " with the exception of actions referred to in § 208(b) and other sections not germane here). The Commission's Data Roaming Order set forth procedures for resolving disputes over its data roaming rule, providing that parties could file complaints under 47 C.F.R. § 20.12(e)(2) and delegating authority to the Bureau to adjudicate data roaming complaints. 47 C.F.R. § 0.111(a)(11) (2016); Data Roaming Order, 26 FCC Rcd. at 5451 ΒΆ 82 ("We further clarify that the Enforcement Bureau has delegated authority to resolve complaints arising out of the data ...


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