United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 22, 2000 Decided August 8, 2000
No. 99-1220
Hi-Tech Furnace Systems, Inc. and
Robert E. Kornfeld,
Petitioners
v.
Federal Communications Commission and
United States of America,
Respondents
Sprint Communications Company L.P.,
Intervenor
On Petition for Review of an Order of the
Federal Communications Commission
Michael C. Spencer argued the cause and filed the briefs
for petitioner. Steven G. Schulman entered an appearance.
Laurel R. Bergold, Counsel, Federal Communications Com-
mission, argued the cause for respondent. With her on the
brief were Joel I. Klein, Assistant Attorney General, U.S.
Department of Justice, Robert B. Nicholson and Robert J.
Wiggers, Attorneys, Christopher J. Wright, General Counsel,
Federal Communications Commission, and John E. Ingle,
Deputy Associate General Counsel.
Leon M. Kestenbaum and Michael B. Fingerhut were on
the brief for intervenor Sprint Communications Company
L.P.
Before: Edwards, Chief Judge, Tatel and Garland, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Garland.
Garland, Circuit Judge: Hi-Tech Furnace Systems, Inc.
and its president, Robert E. Kornfeld,1 filed a complaint with
the Federal Communications Commission (FCC) concerning
revisions Sprint Communications made in a long distance
calling program known as "Fridays Free." Concluding that
the revisions were lawful, the FCC denied the complaint. We
affirm.
I
Sprint, a common carrier regulated under the Communica-
tions Act of 1934, provides long distance telephone service to
the public. See 47 U.S.C. ss 153(h), 203. Hi-Tech is a small
business located in the state of Michigan. On December 14,
1995, Sprint filed tariff provisions proposing to offer its new
and existing "Business Sense" customers a promotion under
which they would be able to make free domestic and interna-
tional long distance calls on one day of the week for twelve
months. Sprint selected Friday as the day for free service
and promoted its new offering as "Fridays Free." The
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1 For ease of reference, Hi-Tech and its president will be re-
ferred to collectively as "Hi-Tech" or "petitioner."
Fridays Free tariff provisions went into effect on January 1,
1996.2
On February 29, 1996, Hi-Tech enrolled in the Fridays
Free program by signing Sprint's standard agreement form.
The agreement committed subscribers to a minimum enroll-
ment term of two years and a minimum monthly usage
requirement of $50. In compliance with the agreement, Hi-
Tech switched its long distance service to Sprint.
Shortly after initiating Fridays Free, Sprint began experi-
encing a substantial increase in international call volume on
Fridays. The growth was so pronounced that it produced
capacity problems at Sprint's international gateway switch in
New York.3 The volume of traffic impaired the carrier's
ability to complete calls to many international locations and
threatened to crash Sprint's international network. See Hi-
Tech Furnace Sys. v. Sprint Communications Co., 14
F.C.C.R. 8040, 8047-48 (1999) [hereinafter Hi-Tech]. Sprint
tried to handle the overload by installing a new, more power-
ful processor at the New York gateway. Nonetheless, call
volume on Fridays remained at dangerously high levels and
continued to increase. See id. at 8042, 8047.
On April 4, 1996, in an effort to ameliorate the overload
problem, Sprint filed a tariff revision to take effect on April
18. Under the revision, Sprint removed 10 countries4 with
high numbers of calls from the list of approximately 220
foreign locations to which free calling was permitted under
the Fridays Free program. Sprint subsequently restored one
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2 Section 203(a) of the Communications Act requires every com-
munications common carrier to file with the FCC a schedule of its
charges, and the "classifications, practices, and regulations affecting
such charges." 47 U.S.C. s 203(a). In this case, the Fridays Free
promotion was a revision of Sprint's existing Business Sense tariff.
3 During the period at issue in this case, an international call had
to go through the "gateway switch" that connected with the interna-
tional cable system serving the country to which the call was made.
See Sprint Br. at 4 n.7.
4 The deleted countries were Bolivia, China, the Dominican Re-
public, Ecuador, India, Iran, Israel, Myanmar, Pakistan, and Thai-
land.
country, the Dominican Republic, to the list, leaving a total of
nine deletions. Sprint notified its subscribers of the modifica-
tions by mailgram. In lieu of free Friday calling to the
deleted countries, Sprint offered subscribers a 25% discount
on calls to those countries every day of the week. Sprint also
allowed Fridays Free customers who did not want to continue
in the program to terminate their subscription without penal-
ty--although it did not advise subscribers of this option
unless they affirmatively communicated their lack of contin-
ued interest.
The tariff revisions immediately remedied Sprint's system
capacity problems. The occupancy level of the New York
gateway switch declined from 109% on April 12, to 59% on
April 19, the day after the program was revised. The total
number of calls made to those countries dropped from 3.69
million on April 12 to 1.43 million on April 19, 1996. See Hi-
Tech, 14 F.C.C.R. at 8048.
On April 18, 1996, the day the tariff revisions became
effective, Hi-Tech filed a class action in Missouri state court,
alleging that Sprint had breached its contract with its Fridays
Free subscribers. Sprint removed the case to the United
States District Court for the Western District of Missouri.
There, the district court concluded that Hi-Tech's complaint
required a determination of the reasonableness of Sprint's
revised tariff, and that such a determination was within the
primary jurisdiction of the FCC. See Hi-Tech Furnace Sys.
v. Sprint Communications Co., No. 96-0566-CV-W-3 (W.D.
Mo. May 9, 1997). The court permitted Hi-Tech to amend its
complaint to add counts alleging violations of the Communica-
tions Act, and thereafter referred the case to the FCC "for all
further proceedings." Hi-Tech Furnace Sys. v. Sprint Com-
munications Co., No. 96-0566-CV-W-3 (W.D. Mo. Aug. 29,
1997). At the same time, it dismissed Hi-Tech's contract
claim without prejudice and denied its motion for class certifi-
cation as moot.
On April 17, 1998, Hi-Tech filed a complaint against Sprint
with the FCC, alleging that Sprint's curtailment of the Fri-
days Free program violated section 201(b) of the Communica-
tions Act because it was unjust and unreasonable,5 and sec-
tion 203(c) because it was in breach of Sprint's existing
tariffs.6 On April 16, 1999, the Commission ruled against Hi-
Tech on both claims. See Hi-Tech, 14 F.C.C.R. at 8041. Hi-
Tech then petitioned for review in this court, limiting its
petition to the claim that Sprint violated section 201(b). See
Hi-Tech Br. at 4 n.1. Petitioner challenges the FCC's deci-
sion on both procedural and substantive grounds, and we
consider those challenges in turn.
II
Hi-Tech levels two procedural attacks against the FCC's
decision. First, it contends that the Commission improperly
assigned it the burden of proof on the question of whether
Sprint's tariff revisions were just and reasonable. Second, it
argues that the Commission improperly denied its requests
for discovery from Sprint.
A
The FCC assigned Hi-Tech the burden of proof, holding
that "[i]t is well established that, in a formal complaint
proceeding brought under section 208 of the Act, the com-
plainant has the burden of proof to demonstrate that the
carrier has violated the Act." Hi-Tech, 14 F.C.C.R. at 8044.
Hi-Tech argues that this allocation was error. First, it
contends that it brought this proceeding not under Communi-
cations Act section 208,7 but rather under section
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5 Section 201(b) requires that "[a]ll charges, practices, classifica-
tions and regulations" of communications common carriers "shall be
just and reasonable." 47 U.S.C. s 201(b).
6 Section 203(c) provides that "no carrier shall (1) charge, de-
mand, collect, or receive a greater or less or different compensation
... for any service ... than the charges specified in the [tariff]
then in effect." 47 U.S.C. s 203(c).
7 Section 208, entitled "Complaints to the Commission," states:
(a) Any person ... complaining of anything done or omitted to
be done by any common carrier subject to this chapter, in
contravention of the provisions thereof, may apply to said
Commission by petition.... If such common carrier within
the time specified shall make reparation for the injury alleged
204,8 which expressly places the burden of proof on the
carrier. See 47 U.S.C. s 204 ("At any hearing involving a
new or revised charge, or a proposed new or revised charge,
the burden of proof to show that the new or revised charge,
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to have been caused, the common carrier shall be relieved of
liability to the complainant.... If such carrier ... shall not
satisfy the complaint within the time specified or there shall
appear to be any reasonable ground for investigating said
complaint, it shall be the duty of the Commission to investigate
the matters complained of in such manner and by such means
as it shall deem proper.
47 U.S.C. s 208.
8 Section 204, entitled "Hearings on new charges," states:
(a)(1) Whenever there is filed with the Commission any new or
revised charge ... or practice, the Commission may either
upon complaint or upon its own initiative without complaint ...
enter upon a hearing concerning the lawfulness thereof; and
pending such hearing and the decision thereon ... may sus-
pend the operation of such charge ... or practice, ... but not
for a longer period than five months beyond the time when it
would otherwise go into effect; and after full hearing the
Commission may make such order with reference thereto as
would be proper in a proceeding initiated after such charge ...
or practice had become effective. If the proceeding has not
been concluded and an order made within the period of the
suspension, the proposed new or revised charge ... or practice
shall go into effect at the end of such period.... At any
hearing involving a new or revised charge, or a proposed new
or revised charge, the burden of proof to show that the new or
revised charge, or proposed charge, is just and reasonable shall
be upon the carrier....
(b) Notwithstanding the provisions of subsection (a) of this
section, the Commission may allow part of a charge ... or
practice to go into effect, based upon a written showing by the
carrier or carriers affected ... that such partial authorization
is just, fair, and reasonable. Additionally, or in combination
with a partial authorization, the Commission, upon a similar
showing, may allow ... a charge ... or practice to go into
effect on a temporary basis pending further order of the
Commission.
47 U.S.C. s 204.
or proposed charge, is just and reasonable shall be upon the
carrier...."). Second, even if the proceeding had been
brought under section 208, Hi-Tech contends it would be
unlawful to allocate the burden differently under that section.
We agree with the FCC that the complaint was brought,
and properly so, under section 208 rather than section 204.9
That Hi-Tech brought the complaint under section 208 is
apparent from its own pleadings, which attached a form
identifying section 208(a) as the statutory basis for the claims.
See Formal Complaint Intake Form (J.A. at 79). That sec-
tion 208 was the proper avenue derives from an analysis of
the purposes of the two sections.
The FCC interprets section 204 as granting it a quasi-
legislative authority to evaluate a carrier's proposals for new
or revised rates. It understands section 208, by contrast, as
granting it authority, upon complaint by an injured party, to
adjudicate the lawfulness of a carrier's past and present rates
and practices. See, e.g., National Exchange Carrier Ass'n, 2
F.C.C.R. 3679, 3679 (1987) ("[I]ssues [that] ... relate to
currently effective tariff provisions ... cannot be raised in a
petition for a Section 204 investigation. Objections to an
existing tariff provision may be presented in a Section 208
complaint."). We have previously expressed the same under-
standing,10 and the distinction is similar to that which courts
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9 At oral argument, petitioner verified that these are the only
sections at issue. Hi-Tech did not, it conceded, endeavor to bring
its complaint under another possibly relevant section, section 205,
which permits the FCC (on its own initiative or upon complaint) to
determine that an existing rate is unjust or unreasonable and to
provide prospective relief. See 47 U.S.C. s 205; Illinois Bell Tel.
Co. v. FCC, 966 F.2d 1478, 1482 (D.C. Cir. 1992).
10 Compare Southwestern Bell Tel. Co. v. FCC, 168 F.3d 1344,
1350 (D.C. Cir. 1999) ("Section 204(a) gives the Commission the
authority to approve or suspend a proposed charge...."), and
Southwestern Bell Corp. v. FCC, 43 F.3d 1515, 1524 (D.C. Cir. 1995)
("Upon complaint or on its own initiative, the Commission may hold
hearings and declare unlawful proposed rate increases under sec-
tion 204."), with AT&T v. FCC, 978 F.2d 727, 732 (D.C. Cir. 1992)
have made with respect to analogous provisions in both the
Interstate Commerce Act (ICA)11 and the Natural Gas Act
(NGA).12 As the FCC's construction constitutes a reasonable
interpretation of the statutory language,13 we are bound to
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(describing s 208 proceeding as one in which the FCC's task was,
"as an adjudicator of private rights," to determine "whether or not
[the carrier] has been, and currently was, violating the law"). See
also Direct Mktg. Ass'n v. FCC, 772 F.2d 966, 969 (D.C. Cir. 1985).
11 49 U.S.C. ss 10101 et seq. See Southern Ry. v. Seaboard
Allied Milling Corp., 442 U.S. 444, 446, 450, 454 (1979) (noting
distinction between proceedings under ICA s 15(8)(a) to challenge
proposed rate increases, and "posteffective proceedings" to protect
"aggrieved" parties under ICA s 13(1)); Baer Bros. Mercantile Co.
v. Denver & Rio Grande R.R., 233 U.S. 479, 486 (1914) ("[A]warding
reparation for the past and fixing rates for the future involve the
determination of matters essentially different. One is in its nature
private and the other public. One is made by the Commission in its
quasi-judicial capacity to measure past injures sustained by a
private shipper; the other, in its quasi-legislative capacity, to
prevent future injury to the public."); see also MCI Tel. Corp. v.
FCC, 59 F.3d 1407, 1418 (D.C. Cir. 1995) ("Because the Congress
borrowed heavily from the Interstate Commerce Act when it draft-
ed the Communications Act of 1934 ... both this court and the
[FCC] often turn to decisions under the ICA for guidance in
interpreting the Communications Act."). The Interstate Commerce
Commission was abolished in 1996, and its remaining functions were
transferred to the Surface Transportation Board. See ICC Termi-
nation Act of 1995, Pub. L. No. 104-88, 109 Stat. 803 (1995).
12 15 U.S.C. ss 717 et seq. See Public Serv. Comm'n v. FERC,
866 F.2d 487, 488 (D.C. Cir. 1989) (noting distinction between
proceedings concerning "proposed rates" under NGA s 4, and
proceedings concerning existing rates under s 5); see also Las
Cruces TV Cable v. FCC, 645 F.2d 1041, 1047 (D.C. Cir. 1981)
(stating that ratesetting provisions of Communications Act are
analogous to provisions of NGA and "trace their lineage" to ICA).
13 Section 204 contains repeated indications of its intended appli-
cation to charges not yet in effect. It applies to "any new or
revised" charge or practice; it permits suspension of such charge or
practice for not longer than five months "beyond the time when it
would otherwise go into effect"; if an order has not been issued
defer to it. See Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837,
842-45 (1984).
Hi-Tech did not file a complaint with the Commission
before the Fridays Free revisions went into effect. Instead,
it challenged them two years after they had been in place.
Accordingly, under the foregoing interpretation of the two
statutory provisions, Hi-Tech's complaint falls within section
208.
Unlike section 204, section 208 is silent as to which party
bears the burden of proof. Hi-Tech argues that it is unlawful
for the FCC to place the burden on the complainant in section
208 proceedings, when the statute places it on the carrier in
proceedings under section 204. We disagree.
Well-established FCC precedent imposes the burden of
proof on the complainant in section 208 proceedings.14 So
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within the period of the suspension, it provides that "the proposed
new or revised" charge or practice "shall go into effect"; and it
authorizes the Commission to allow a charge or practice "to go into
effect on a temporary basis" pending further order. Section 208, by
contrast, contains repeated indications of its intended application to
past actions. For example, it permits any person complaining of
anything "done or omitted to be done" by any common carrier to
petition the FCC, and it relieves the carrier of liability if it makes
reparations "for the injury alleged to have been caused." See 47
U.S.C. s 204, set out at supra note 8; 47 U.S.C. s 208, set out at
supra note 7.
14 See Beehive Tel., Inc., 12 F.C.C.R. 17950, 17961-62 (1995)
("Although carriers who file new or revised rates bear the burden of
proof in Section 204 proceedings, it is well settled that complainants
in Section 208 formal complaint proceedings bear the burden of
proof."), aff'd on other grounds, 179 F.3d 941 (D.C. Cir. 1999); see
also Ascom Communications, Inc. v. Sprint Communications Co.,
15 F.C.C.R. 3223, 3230 n.41 (2000); AT&T v. Bell Atlantic, 14
F.C.C.R. 556, 570 (1998); Directel, Inc. v. AT&T, 11 F.C.C.R. 7554,
7560 (1996); Connecticut Office of Consumer Counsel, 4 F.C.C.R.
8130, 8133 (1989), aff'd on other grounds, 915 F.2d 75 (2d Cir. 1990).
The petitioner's references to FCC opinions in agency proceedings
initiated under sections other than s 208 are inapposite.
does our own.15 Such an allocation is consistent with the
Administrative Procedure Act (APA), which takes into ac-
count the distinction between statutory provisions that do and
do not mention the burden of proof, and which directs that:
"Except as otherwise provided by statute, the proponent of a
rule or order has the burden of proof." 5 U.S.C. s 556(d). It
is likewise consistent with the Supreme Court's allocation of
the burden of proof under the analogous provisions in the
ICA,16 and with our own allocation of the burden under the
analogous provisions in the NGA.17 Accordingly, we find
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15 See American Message Ctrs. v. FCC, 50 F.3d 35, 41 (D.C. Cir.
1995) (stating, regarding a case brought under s 208, that "[t]he
rules place the burden of pleading and documenting a violation of
the Act on [the complainant]. They do not require [the carrier] to
prove it has not violated the Act."); Aeronautical Radio, Inc. v.
FCC, 642 F.2d 1221, 1235 n.34 (D.C. Cir. 1980) (noting that the
complaint procedure of ss 206-209 "shifts the burden of proof onto
the aggrieved party"). See generally Copley Press, Inc. v. FCC, 444
F.2d 985, 988 (D.C. Cir. 1971) (holding s 204 burden-allocation
provision may not be relied upon to assess burden in non-204
proceeding).
16 See Southern Ry., 442 U.S. at 446, 450, 454 (noting that burden
of proof is on carrier in s 15(8)(a) proceeding, while burden is on
shipper (customer) in s 13(1) proceeding); Aeronautical Radio, 642
F.2d at 1235 n.34 (relying on Southern Railway for conclusion that
ss 206-209 of Communications Act "shift[ ] the burden of proof
onto the aggrieved party"). See generally supra note 11.
17 In Public Service, we held that "[u]nder s 4 [of the NGA] the
company has the burden of showing that [its] proposed rates are
just and reasonable, while under s 5 the Commission must show
that the [filed] rates it would alter are not just and reasonable....
The unifying principle is that the proponent of change bears the
burden." 866 F.2d at 488. Section 4 of the NGA, 15 U.S.C.
s 717c(e), like section 204 of the Communications Act, expressly
provides that "[a]t any hearing involving a rate or charge sought to
be increased, the burden of proof to show that the increased rate or
charge is just and reasonable shall be upon the natural-gas compa-
ny." Section 5 of the NGA, like section 208 of the Communications
Act, is silent as to the burden of proof. See ANR Pipeline v.
nothing unlawful about the FCC's decision to impose upon
Hi-Tech the burden of proof regarding the reasonableness of
the tariff revisions.
B
After filing its complaint with the FCC, Hi-Tech served
Sprint with a set of seven interrogatories. Sprint objected
and, Hi-Tech contends, FCC counsel declined to direct the
carrier to respond.18 Instead, the Commission undertook its
own investigation, making its own demands for information
from the parties and following up with supplemental inquiries.
Hi-Tech contends that the agency acted unlawfully in failing
to allow petitioner to conduct its own discovery.
The FCC responds that this court has no jurisdiction to
review its decision not to permit discovery. It asserts that
discovery is agency action "committed to agency discretion by
law" within the meaning of the APA, 5 U.S.C. s 701(a)(2), and
thus is not subject to judicial review. See generally Heckler
v. Chaney, 470 U.S. 821, 828-29 (1985). For support, the
FCC points to the broad language of Communications Act
s 208(a), which states that "it shall be the duty of the
Commission to investigate the matters complained of in such
manner and by such means as it shall deem proper." And it
further cites our decision in Sprint Communications Co. v.
FCC, 76 F.3d 1221, 1231 (D.C. Cir. 1996), which it reads as
declaring, albeit in dictum, that the Commission's refusal to
permit discovery under section 208(a) is a matter within its
unreviewable discretion.
The United States, represented by the Department of
Justice, is by law a co-respondent with the FCC in this case.
See 28 U.S.C. ss 2344, 2348. In contrast to the FCC, the
United States believes that the agency's decision regarding
discovery is reviewable. See Resp'ts Br. at 32 n.69. We
agree. The FCC's position confuses the narrow category of
agency action wholly committed to agency discretion under
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FERC, 771 F.2d 507, 513 (D.C. Cir. 1985) (discussing different
burdens of proof under NGA). See generally supra note 12.
18 The FCC contends that Hi-Tech never filed a motion to compel
a response.
APA s 701(a)(2), with the primary category of agency action
that is subject to review for "abuse of discretion" under APA
s 706(2)(A). See Heckler, 470 U.S. at 828-29. We do not
lightly place a matter within the former category, as the APA
embodies "a 'basic presumption of judicial review.' " Lincoln
v. Vigil, 508 U.S. 182, 190 (1993) (quoting Abbott Labs. v.
Gardner, 387 U.S. 136, 140 (1967)). The exception for agency
action "committed to agency discretion by law" is a "very
narrow" one, reserved for "those rare instances where stat-
utes are drawn in such broad terms that in a given case there
is no law to apply." Citizens to Preserve Overton Park v.
Volpe, 401 U.S. 402, 410 (1971) (internal quotation omitted);
see Lincoln, 508 U.S. at 191.
As the United States correctly points out, this court's
dictum in Sprint Communications does not support the
FCC's claim to immunity from judicial review. Sprint stated
that "it appears that the FCC's decision whether to investi-
gate a particular matter is an 'agency action ... committed
to agency discretion by law.' " 76 F.3d at 1231 (emphasis
added).19 The court suggested, by its immediately-following
citation to Heckler v. Chaney, that an agency's decision not to
commence an investigation is analogous to an agency's deci-
sion not to take enforcement action--which the Supreme
Court held unreviewable in Heckler. See Heckler v. Chaney,
470 U.S. at 832. An agency's decision not to permit discov-
ery, however, is not analogous to a decision not to take
enforcement action. Unlike the latter, which the Court noted
has long been regarded as committed to an agency's absolute
discretion, see id. at 831 (citing precedent dating to 1869), this
court and others have long reviewed agency decisions regard-
ing discovery.20 In fact, in American Message Centers v.
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19 Although the Sprint opinion noted the petitioner's objection "to
the FCC's failure to permit discovery or to conduct an evidentiary
proceeding in order to investigate the alleged fraudulent conceal-
ment," the court's comment on reviewability mentioned only the
"decision whether to investigate a particular matter." Sprint Com-
munications, 76 F.3d at 1231 (emphasis added). Moreover, not-
withstanding its comment, the court went on to review the FCC's
failure and found no abuse of discretion. See id.
20 See Lakeland Bus Lines v. ICC, 810 F.2d 280, 287-88 (D.C. Cir.
1987) (reversing in part ICC denial of petitioner's discovery request
FCC, 50 F.3d 35, 40-41 (D.C. Cir. 1995), we reviewed for
abuse of discretion the FCC's refusal to compel discovery in a
section 208 proceeding. We follow that course here as well.
This court reviews such a determination, however, with
"extreme deference." Lakeland Bus Lines v. ICC, 810 F.2d
280, 286 (D.C. Cir. 1987). "[T]he conduct and extent of
discovery in agency proceedings is a matter ordinarily en-
trusted to the expert agency in the first instance and will not,
barring the most extraordinary circumstances, warrant the
Draconian sanction of overturning a reasoned agency deci-
sion." Trailways Lines v. ICC, 766 F.2d 1537, 1546 (D.C.
Cir. 1985). Although we have concluded that the Commis-
sion's actions are reviewable for abuse of discretion, we agree
with both the United States and the Commission that there
has been no such abuse here.
In this case, a body of evidence was generated by the
formal written submissions of the litigants. In addition, the
FCC made its own inquires, directing the parties to respond
to detailed requests for information. The Commission also
had available Sprint's responses to the discovery requests
served by Hi-Tech during proceedings in the district court.
As our analysis in Part III below makes clear, the sum of
these measures created the record necessary to make the just
and reasonableness determination contemplated by 47 U.S.C.
s 201(b).
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on ground that denial relied on inaccurate factual premise); Trail-
ways Lines v. ICC, 766 F.2d 1537, 1546 (D.C. Cir. 1985) (reviewing,
but upholding as reasonable, ICC's rejection of petitioners' discov-
ery request); Cross-Sound Ferry Svcs., Inc. v. ICC, 738 F.2d 481,
486-87 (D.C. Cir. 1984) (holding that ICC's failure to gather suffi-
cient evidence from applicant for common carrier authority was
arbitrary and capricious); McClelland v. Andrus, 606 F.2d 1278,
1286 (D.C. Cir. 1979) (reviewing agency discovery decision and
remanding for further consideration); Virginia Petroleum Jobbers
Ass'n v. FPC, 293 F.2d 527, 529 (D.C. Cir. 1961); see also, e.g.,
Pacific Gas and Elec. Co. v. FERC, 746 F.2d 1383, 1387-88 (9th Cir.
1984); Armstrong, Jones & Co. v. SEC, 421 F.2d 359, 364 (6th Cir.
1970); NLRB v. Gala-Mo Arts, Inc., 232 F.2d 102, 106 (8th Cir.
1956).
Hi-Tech's real dispute is not with the discovery measures
the FCC took, but with additional measures it did not take.
Specifically, petitioner insists that the Commission should
have permitted Hi-Tech itself to take discovery from Sprint,
in the form of its own interrogatories and depositions, in
order to test Sprint's responses "through normal adversarial
proceedings." Hi-Tech Br. at 17. But Hi-Tech's demand
misapprehends the nature of the administrative process it
entered into when its complaint was ousted from the district
court and referred to the FCC. As we have pointed out
before in affirming an FCC decision not to compel discovery
sought by a petitioner: Complaint proceedings under the
Communications Act, "unlike court litigation or
administrative-trial type hearings, are often resolved solely on
the written pleadings," and the Commission has properly
"placed limitations on the scope and methods of discovery in
its formal complaint proceedings that do not exist in trials
governed by the Federal Rules." American Message Ctrs.,
50 F.3d at 41; see McClelland v. Andrus, 606 F.2d 1278, 1285
(D.C. Cir. 1979) ("The extent of discovery that a party
engaged in an administrative hearing is entitled to is primari-
ly determined by the particular agency: ... courts have
consistently held that agencies need not observe all the rules
and formalities applicable to courtroom proceedings.").
Nothing in either the Communications Act or the APA
entitles a party to the specific procedures Hi-Tech demands.
To the contrary, and as the FCC properly emphasizes, section
208 of the Communications Act expressly authorizes the
Commission "to investigate the matters complained of in such
manner and by such means as it shall deem proper." 47
U.S.C. s 208; cf. FCC v. Schreiber, 381 U.S. 279, 289 (1965).
Moreover, the Supreme Court has firmly instructed us that
"courts are not free to impose upon agencies specific proce-
dural requirements that have no basis in the APA" or statute.
Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 654
(1990). Although "[a]gencies are free to grant additional
procedural rights in the exercise of their discretion,"21 "re-
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21 FCC regulations permit complainants to file requests for inter-
rogatories, but leave it to Commission staff to "determine the
viewing courts are generally not free to impose them if the
agencies have not chosen to grant them." Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 524 (1978).
Cross-Sound Ferry Services, Inc. v. ICC, cited by petition-
er, is not to the contrary. 738 F.2d 481, 486-87 (D.C. Cir.
1984). In that case, a ferry company challenged the ICC's
decision to grant common carrier authority to its competitor,
the Bridgeport & Port Jefferson Steamboat Company
(B&PJ). On appeal from the agency, this court held that the
ICC had acted arbitrarily in failing to gather the information
necessary to make the statutory determination of whether the
proposed service was " 'required by the present or future
public convenience and necessity.' " Id. at 482-84 (quoting 49
U.S.C. s 10922(a)). We did not, however, say that the error
was the ICC's failure to permit discovery by the complainant.
Rather, the error was the Commission's refusal to generate
an appropriate record--"by requiring greater specificity from
B&PJ or by permitting Cross-Sound to ferret out relevant
evidence through discovery"--which left the ICC without
"sufficient record evidence to permit a reasoned application of
statutory directives." Id. at 484 (emphasis added).
As we have noted above, the FCC did compile a record
sufficient to make the statutory determination at issue in this
case. Hi-Tech does not specify any additional information
that should have been obtained, nor does it point out any way
in which conducting its own discovery would have made a
difference--other than to emphasize its skepticism of the
"self-serving" nature of Sprint's responses and the need to
test them by the adversary process. Since the Supreme
Court has made clear that we are not permitted to impose
any such testing procedure on an agency, we have no basis
for setting aside the FCC's decision.
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interrogatories, if any, to which parties shall respond." 47 C.F.R.
s 1.729(d). The regulations also authorize the Commission, in its
discretion, to allow additional discovery, including depositions. See
47 C.F.R. s 1.729(h).
III
With these preliminary matters attended to, we now reach
the merits of Hi-Tech's complaint. We review the FCC's
denial only to determine whether it was "arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accordance
with law." 5 U.S.C. s 706(2)(A); see American Message
Ctrs., 50 F.3d at 39.
The gravamen of Hi-Tech's complaint is that the changes
Sprint made in its Fridays Free program breached the
requirement of section 201(b) that "charges, practices, classi-
fications, and regulations ... be just and reasonable." 47
U.S.C. s 201(b). To determine whether the revisions met the
statutory standard, Hi-Tech urged the Commission to employ
its so-called "substantial cause" test: that is, to determine
whether Sprint had "substantial cause" to amend the tariff.
See Hi-Tech Br. at 21-23; see generally Showtime Networks
Inc. v. FCC, 932 F.2d 1 (D.C. Cir. 1991) (discussing "substan-
tial cause" test for determining whether tariff modifications
are just and reasonable); RCA American Communications,
Inc., 86 F.C.C.2d 1197, 1201-02 (1981) (holding that a carri-
er's decision "to revise material provisions in the middle of a
term" will be considered "reasonable" if the carrier can make
a showing of "substantial cause" for so doing). The FCC
noted that it had previously applied the substantial cause test
only to revisions of individually-negotiated contract tariffs and
to revisions of generic, long-term service tariffs filed by
dominant carriers. See Hi-Tech, 14 F.C.C.R. at 8045-46.
The Commission had not yet decided, however, whether the
test should be applied to "a nondominant carrier's generic,
long-term service tariff, such as the Fridays Free promotion
at issue here." Id. at 8046. Nonetheless, the FCC agreed to
apply the standard, arguendo, to Sprint's tariff revisions. See
id.
Under the substantial cause test, the FCC measures the
reasonableness of a tariff modification by weighing two princi-
pal considerations: the "carrier's explanation of the factors
necessitating the desired changes at that particular time,"
and the "position of the relying customer." RCA American,
86 F.C.C.2d at 1201; see Hi-Tech, 14 F.C.C.R. at 8045. The
FCC resolved the first factor in Sprint's favor, concluding
that "Sprint has demonstrated that the tariff revisions were
necessary to prevent the overloading of Sprint's network,
despite reasonable efforts by Sprint to preserve the Fridays
Free promotion in its original form." Hi-Tech, 14 F.C.C.R.
at 8046. The Commission found that on each successive
Friday after the promotion began, call volume increased
dramatically. See id. By late March, "the extraordinarily
high call volumes on Fridays threatened to bring down
Sprint's New York international gateway switch ... which
repeatedly reached over 100% of designed traffic capacity."
Id. at 8047. Moreover, "because of this international over-
load, the New York domestic switch ... also approached
overload levels." Id. Together, "[t]hese system overloads
prevented the completion of many international calls from all
over the country." Id.
The FCC also found that Sprint had taken steps to try to
resolve the overload problem short of deleting countries from
the Fridays Free program. See id. Sprint purchased and
installed a new processor, and it changed the routing of calls
so that the domestic New York switch would receive less
traffic. See id. Despite these efforts, "[t]raffic loads contin-
ued to increase dangerously" and threatened to crash the
gateway switch. Id. at 8047-48. Sprint then filed its tariff
revisions, and on the first Friday after they took effect, call
volume dramatically decreased and the threat was eliminated.
See id. at 8048.
These findings reasonably support the FCC's conclusion
that Sprint satisfied the first half of the substantial cause
test, by establishing its need for the revisions in the Fridays
Free program. This was not a case in which the carrier
sought midterm changes based merely on a "generalized
assertion of rising costs," RCA American, 86 F.C.C.2d at
1205, or on a claim "that it will make less money" without
them, AT&T Communications, 5 F.C.C.R. 6777, 6779
(1990)--rationales the agency has found unpersuasive in the
past. Here, the FCC concluded that revisions were neces-
sary "to protect the integrity of [Sprint's] network"--to pre-
vent the crash of key switches with consequent disruption for
all of Sprint's subscribers. Hi-Tech, 14 F.C.C.R. at 8050.
Although Hi-Tech argues that Sprint could have expanded its
facilities rather than curtail the program, the FCC reasonably
noted that Sprint had already tried that to no avail, and that
further expansion of Sprint's international capacity would
have required negotiations with a foreign carrier, a process
that could not have been completed in time to resolve the
capacity crisis. See id. at 8048.
Hi-Tech also argues that Sprint should have employed a
"less onerous" alternative than deletion of the nine countries.
Hi-Tech Br. at 26. Of course, deletion was itself a less
drastic alternative than canceling the entire program: Sprint
continued to permit free Friday calling to more than 200
foreign locations, as well as to all domestic locations. None-
theless, Hi-Tech argues that Sprint could have retained free
calling to the nine countries, but "spread the program bene-
fits over more days of the week" by "designating different
days of the week for different segments of customers." Id. at
26-27 (quoting Compl. p 27). Sprint should not be permitted
to revise its tariff "in a way that is economically beneficial to
the carrier," Hi-Tech insists, "when better and fairer alterna-
tives are available." Id. at 27.
The FCC rejected this demand. The Commission noted
Sprint's representations that such a plan would have been
impractical, and noted that Hi-Tech had failed to offer any
evidence to the contrary. See Hi-Tech, 14 F.C.C.R. at 8049.
It further pointed out that Hi-Tech had failed to show why
free calling on one day of the week was any more reasonable
than the alternative Sprint adopted: a 25% discount every
day. The FCC's statutory mandate is only to ensure that
tariff revisions are "just and reasonable," 47 U.S.C. s 201(b),
not that they are the "least onerous" alternative available.
See Showtime, 932 F.2d at 4 (holding that substantial cause
test is only an aid in ascertaining whether newly filed modifi-
cations to long-term tariffs are "within the zone of reason-
ableness," and "not an additional hurdle" for carriers to
overcome). And our statutory mandate is only to ensure that
the agency's determinations are themselves reasonable, re-
gardless of whether there may be other "better and fairer"
alternatives. Cf. Serono Labs., Inc. v. Shalala, 158 F.3d 1313,
1321 (D.C. Cir. 1998). The FCC's finding with respect to
Sprint's need for the tariff revisions meets that standard.
Turning to the second half of the substantial cause test, the
FCC looked for evidence of Hi-Tech's reliance on the provi-
sions of the Fridays Free plan--and found it to be minimal.
Hi-Tech's president conceded that he had switched to Sprint
not only because of the Fridays Free promotion, but also
because Sprint's "rate was attractive in itself." J.A. at 228
(Kornfeld Dep.). There was no evidence that, during the
month and a half in which it subscribed to the unrevised
Fridays Free program, Hi-Tech had made any calls to any of
the nine deleted countries--with the exception of three calls
its president made after Sprint announced the revisions, calls
he conceded making to take advantage of the last free-calling
opportunity under the program. See Hi-Tech, 14 F.C.C.R. at
8049; J.A. at 237, 239, 241 (Kornfeld Dep.). Nor did the
company offer evidence to show that it had been any better
off under Fridays Free than it was under the new 25%-
discount plan. And while Hi-Tech contends that it should be
able to support its case by showing the detrimental reliance
of Sprint customers other than itself--because it initially filed
the case in court as a class action22--there is no evidence of
such reliance in the record. To the contrary, the Commission
concluded that because Sprint permitted Fridays Free cus-
tomers to terminate their contracts without penalty if they
were dissatisfied with the revisions, they were "no worse off
than if they had never enrolled in Sprint's Fridays Free
promotion." Hi-Tech, 14 F.C.C.R. at 8050.23
__________
22 But see Krauss, 14 F.C.C.R. 2770, 2774 (1999) (finding it
inappropriate to determine carrier's liability for injuries to other
subscribers, as that "would, in effect, transform this section 208
complaint proceeding into a class action suit, a result neither
contemplated by, nor consistent with, the private remedies created
under sections 206 through 209 of the Act"); Certified Collateral
Corp., 2 F.C.C.R. 2171, 2173 (1987) (noting that FCC rules "do not
contemplate class action complaints").
23 The FCC also noted that the standard order form signed by
Hi-Tech stated that the promotion was "governed by the applicable
In sum, we discern no abuse of discretion in the agency's
conclusion that the tariff revisions were just and reasonable
under both prongs of the substantial cause test.
IV
As a final argument, Hi-Tech contends that the FCC
should have used "commercial contract law principles" to
resolve this case, and that if it had, Hi-Tech would have
prevailed. It further argues that because the FCC did not
employ such principles, we are obliged to vacate the Commis-
sion's order. Without deciding what the result would be
under "commercial contract law principles," it is clear that
petitioner has misperceived both the Commission's role in this
dispute and our own.
Hi-Tech's breach-of-contract claims were dismissed by the
district court in Missouri, and we have no jurisdiction (and
have not been asked) to review that decision. Instead, un-
der review here is the FCC's determination of whether
Sprint's tariff revisions were just and reasonable--which is,
as we have noted above, the only authority the Commission
has under section 201(b) of the Communications Act. At
Hi-Tech's own request, the Commission agreed to evaluate
reasonableness under the "substantial cause" standard.
That test requires an evaluation of the carrier's need for
tariff revisions and of the subscriber's reliance on the tariff's
original terms. Although these factors may reflect familiar
contract law principles, see, e.g., Restatement (Second) of
Contracts s 261 (1979), they are not intended to replicate
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Sprint tariffs, as they may be amended from time to time." Hi-
Tech, 14 F.C.C.R. at 8050. The Commission did not rest on this
point in stating its ultimate conclusion, see id. at 8050, and we would
not regard it as sufficient to establish lack of justified reliance on
the part of Hi-Tech. Although Sprint was free to amend its tariff,
it could not do so--regardless of the boilerplate language--unless
the amendment was "just and reasonable" under s 201. See RCA
American, 86 F.C.C.2d at 1202 ("[T]he mere presence of some
sweeping reservation to unilaterally change any and all terms and
conditions will not serve to lessen our original concerns.").
contract law analysis, but only to assist the FCC in deter-
mining whether the revisions were "within the zone of rea-
sonableness" required by the statute. Showtime, 932 F.2d
at 4; see Cahnmann v. Sprint Corp., 133 F.3d 484, 488 (7th
Cir. 1998) (holding that "[a]ny rights that the plaintiff has to
complain about a breach of contract" in a tariff revision case
are evaluated "by the principle of reasonableness that the
FCC uses to determine the validity of ... an amendment to
a tariff.")
As we have also stressed above, our authority is limited to
determining whether the FCC's determination was itself rea-
sonable--that is, whether the agency's decision was "arbi-
trary, capricious, [or] an abuse of discretion." 5 U.S.C.
s 706(2)(A). Finding no violation of that deferential stan-
dard, we deny the petition for review.