United States Court of Appeals, District of Columbia Circuit
October 16, 2017
Petition for Review of an Order of the Federal Communications
J. Evans argued the cause for petitioner. With him on the
briefs was Ashley Ludlow. Jonathan Markman entered an
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.
L. Haga argued the cause for intervenor. With him on the
brief was Christopher M. Miller. Andre J. Lachance entered an
Before: Rogers and Tatel, Circuit Judges, and Edwards, Senior
EDWARDS, SENIOR CIRCUIT JUDGE
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).
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.
NTCH failed to seek Commission review before petitioning for
review in this court, we are constrained to dismiss the
petition for lack of jurisdiction.
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
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).
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 ¶ 82 ("We further clarify that the
Enforcement Bureau has delegated authority to resolve
complaints arising out of the data ...