International Telecard Ass'n. v. Federal Communications Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Filed February 23, 1999

No. 98-1291

International Telecard Association

and WorldCom, Incorporated,

Petitioners

v.

Federal Communications Commission

and United States of America,

Respondents

On Petition for Rehearing

Glenn B. Manishin and Christy C. Kunin were on the
petition for rehearing, for petitioner International Telecard
Association.

Before: Ginsburg, Sentelle, and Rogers, Circuit Judges.

Opinion for the court filed Per Curiam.

Per Curiam: In Richman Bros. Records, Inc., v. Federal
Communications Commission, 124 F.3d 1302 (D.C. Cir.
1997), we dismissed a petition for review because the petition-
ers had not yet sought review of the agency order by the full
Federal Communications Commission, as required by 47
U.S.C. s 155(c)(7). The question presented in this case is
whether judicial review can be obtained when Commission
review has been sought, but not yet obtained. In other
words, is the act of filing a request for Commission review in
itself sufficient to satisfy the judicial review prerequisites of
s 155(c)(7). We hold that it is not.

The order under review in this petition was issued March 9,
1998, by the Chief of the FCC's Common Carrier Bureau,
Implementation of the Payphone Reclassification and Com-
pensation Provisions of the Telecommunications Act of 1996,
Order No. DA 98-481, 13 FCC Rcd 4998 (Com. Car. Bur.
1998). The order was issued pursuant to authority delegated
by the full Commission to the Common Carrier Bureau Chief.
See 47 U.S.C. s 155(c)(1); 47 C.F.R. ss 0.91 & 0.291. In
April 1998, petitioners filed an application for full Commission
review of the March 9 order, pursuant to 47 U.S.C.
s 155(c)(1) (orders issued on authority delegated by the Com-
mission "may be adopted, amended, or rescinded only by a
vote of the majority of the members of the Commission then
holding office"). Petitioners filed a petition for judicial re-
view in June 1998. The FCC moved to dismiss for lack of
jurisdiction because the full Commission had not yet resolved
the application for administrative review. In an unpublished
order filed September 15, 1998, we granted the FCC's motion
and dismissed the petition for review.

Petitioner International Telecard Association (ITA) filed a
petition for rehearing arguing that the act of filing an applica-
tion for Commission review satisfies the statutory prerequi-
site to judicial review, and that petitioners need not await the
Commission's decision on review before petitioning this court.
ITA's argument is based on the language of 47 U.S.C.
s 155(c)(7), which provides that "[t]he filing of an application
for review [by the full Commission] shall be a condition
precedent to judicial review of any order taken pursuant to"

delegated authority, but does not explicitly require a petition-
er to await the Commission's disposition.

ITA's reading of s 155(c)(7), however, conflicts with the
reasoning of Richman Bros. The petition at issue in Rich-
man Bros. arose out of a primary jurisdiction referral from a
district court to the FCC's Common Carrier Bureau. We
disallowed Richman's attempt to obtain judicial review of the
resulting staff decision without first seeking Commission re-
view. Richman Bros. rejected the claim that s 155(c)(7)'s
"exhaustion requirement" is inapplicable to primary jurisdic-
tion referrals, reasoning that "the Congress did not intend
that the court review a staff decision that has not been
adopted by the Commission itself." Id., 124 F.3d at 1304.
The Richman Bros. reasoning applies equally to the situation
presented here. Because ITA's interpretation of s 155(c)(7)
would permit judicial review of a staff decision before the
Commission has "adopted, amended, or rescinded" that deci-
sion, see s 155(c)(1), it must be rejected.

Lest there be any misunderstanding, we expressly hold
that a petition for review filed after a bureau decision but
before resolution by the full Commission is subject to dismiss-
al as incurably premature. Ongoing agency review renders
an order nonfinal for purposes of judicial review, and a
petition for review of the order is incurably premature. Cf.
BellSouth Corp. v. FCC, 17 F.3d 1487, 1490 (D.C. Cir. 1994)
(while party's request for agency reconsideration remains
pending, petition for judicial review incurably premature);
Wade v. FCC, 986 F.2d 1433, 1434 (D.C. Cir. 1993) ("danger
of wasted judicial effort ... attends the simultaneous exercise
of judicial and agency reconsideration").

Because ITA's petition for review was properly dismissed,
we deny the petition for rehearing.