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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 4, 2003 Decided June 17, 2003
No. 02-1129
SPRINT CORPORATION,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
SBC COMMUNICATIONS, INC., ET AL.,
INTERVENORS
On Petition for Review of Orders of the
Federal Communications Commission
Michael Deuel Sullivan argued the cause for petitioner
Sprint Corporation and intervenor Cingular Wireless. With
him on the briefs were L. Charles Keller, Luisa L. Lancetti,
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
L. Andrew Tollin and Carol L. Tacker. Jay C. Keithley
entered an appearance.
James M. Carr, Counsel, Federal Communications Com-
mission, argued the cause for respondents. With him on the
brief were R. Hewitt Pate, Acting Assistant Attorney Gener-
al, U.S. Department of Justice, Robert B. Nicholson and
Robert J. Wiggers, Attorneys, John A. Rogovin, Acting Gen-
eral Counsel, Federal Communications Commission, John E.
Ingle, Deputy Associate General Counsel, and Pamela L.
Smith, Counsel. Stewart A. Block, Counsel, entered an ap-
pearance.
Helen M. Mickiewicz argued the cause for intervenors
People of the State of California and California Public Utili-
ties Commission. With her on the brief was Gary M. Cohen.
Before: SENTELLE, ROGERS and GARLAND, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: This petition for review of three
orders of the Federal Communications Commission arises out
of the Commission’s efforts to regulate the creation of tele-
phone area codes and the allocation of telephone numbers in
an equitable manner that will conserve numbering resources
in the United States. See Report & Order & Further Notice
of Proposed Rulemaking, In re Numbering Res. Optimiza-
tion, 15 F.C.C.R. 7574 (2000) (‘‘First Order’’); Second Report
& Order, Order on Reconsideration in CC Docket No. 96–98
and CC Docket 99–200 & Second Further Notice of Proposed
Rulemaking in CC Docket No. 99–200, In re Numbering Res.
Optimization, 16 F.C.C.R. 306 (2000) (‘‘Second Order’’);
Third Report & Order & Second Order on Reconsideration
in CC Docket No. 96–98 and CC Docket No. 99–200, In re
Numbering Res. Optimization, 17 F.C.C.R. 252 (2001)(‘‘Third
Order’’); see also Notice of Proposed Rulemaking, In re
Numbering Res. Optimization, 14 F.C.C.R. 10,322 (1999)
(‘‘NPRM’’). At issue are the Commission’s decisions to (1)
lift the ban on specialized overlay area codes and consider
state applications for specialized overlays on a case-by-case
basis; (2) authorize states to implement rationing of tele-
3
phone numbers in limited circumstances; and (3) delegate
some auditing authority to the states.
Sprint Corporation, joined by intervenor Cingular Wireless
LLC (together, ‘‘Sprint’’), challenges the Commission’s deci-
sion to lift the ban on specialized overlays as contrary to law
and arbitrary and capricious in view of the Commission’s
continuing view that the practice is discriminatory and the
lack of relevant changed circumstances justifying the practice.
We hold that this challenge is not ripe for judicial review, for
Sprint’s contentions are intertwined with how the Commission
might exercise its discretion in the future. In the meantime,
Sprint is free to conduct its business as it sees fit as the
Commission’s decision to lift the ban does not require Sprint
to do or refrain from doing anything. We therefore dismiss
that part of the petition as unripe. In addition, Sprint
Corporation alone challenges the Commission’s decisions on
rationing, as contrary to Commission rules, and on auditing,
as contrary to preemption of state authority. We hold that
these challenges are unpersuasive and deny the remainder of
the petition.
I.
The telephone numbering system for North America, the
North American Numbering Plan (‘‘NANP’’), was established
in the 1940s by AT&T and created the familiar ten-digit
dialing pattern for all telephone numbers, with the first three
digits commonly known as the area code, and the second
three digits referred to as the central office code or exchange.
Third Order, 17 F.C.C.R. at 254 & n.1. After years of private
arrangements for allocation of numbers (by the local tele-
phone companies and a private corporation called Bellcore,
see NPRM, 14 F.C.C.R. at 10,330; see also In re Admin. of
the North Am. Numbering Plan, 11 F.C.C.R. 2588, 2593–94
(1995)), Congress, as part of the Telecommunications Act of
1996, Pub. L. No. 104–104, 110 Stat. 56 (1996), amended the
Communications Act, 47 U.S.C. §§ 151 et seq., to vest exclu-
sive authority in the Commission over all aspects of number-
ing administration in the United States, with authority to
4
delegate that authority to state commissions or other entities,
47 U.S.C. § 251(e)(1). Coincidently, a ‘‘numbering crisis’’
began to emerge in the United States with the proliferation of
fax machines, modems, and wireless telephones, all demand-
ing numbers. See New York v. FCC, 267 F.3d 91, 94 (2d Cir.
2001). Simultaneously, with the rise of competition in local
telephone services multiple service providers required the
allocation of large blocks of telephone numbers in order to be
able to serve potential new customers. See NPRM, 14
F.C.C.R. at 10,325. Traditionally, each telephone service
provider would be given at least one central office code with
approximately 10,000 telephone numbers in each area code to
allocate to new customers. Id. at 10,324–25, 10,331. With
the new demands, the ‘‘exhaustion’’ of area codes, i.e., the
allocation of all available central office codes, rapidly in-
creased. Id. at 10,325, 10,331–32. To provide ‘‘area code
relief’’ upon exhaustion of an area code, the Commission
identified three alternatives that the states could adopt: (1)
split the old area code geographically, with approximately half
of the existing phone numbers allocated to a new area code;
(2) create a new ‘‘overlay’’ area code that is geographically
coextensive with the old area code, with all new phone
numbers assigned to the new overlay code; or (3) readjust
area code boundaries. Id. at 10,424. Each alternative might
result in significant costs for consumers and telephone service
providers. Id. at 10,332–34.
With the threat of exhaustion of all available area codes
before 2010 and the enormous costs of conversion to an
eleven digit system (preliminary estimates placing the cost at
between $50 and $150 billion, id. at 10,326 n.8), the Commis-
sion turned its attention to ways to ‘‘conserve’’ numbering
resources, id. at 10,326. Beginning in 2000, the Commission
issued three orders designed ‘‘to slow the rate of number
exhaust[ion] TTT and to prolong the life of the [NANP].’’ Id.
at 10,324; see First Order 15 F.C.C.R. at 7578. Among the
key conservation actions called for by the Commission was
‘‘thousands-block number pooling,’’ in which service providers
are allocated numbers in batches of 1,000, rather than 10,000,
in order to reduce inefficient allocation of numbers and
5
control requests. Second Order, 16 F.C.C.R. at 322. Anoth-
er key action was requiring service providers to demonstrate
their need before additional numbers are allocated in order to
end abuse of ‘‘stockpiling’’ unused numbers. Id. at 314–15.
Of the various other actions aimed at conservation, only three
are challenged by Sprint. The first challenge involves ‘‘spe-
cialized overlay’’ area codes, in which area codes are restrict-
ed for the exclusive use of certain types of technologies or
services (e.g., wireless telephones). Id. at 359. The Commis-
sion had banned specialized overlays in 1995 and decided to
reconsider its decision in 1999. Id. at 359–60; NPRM, 14
F.C.C.R. at 10,431. Under the new regime, the Commission
could approve on a case-by-case basis, upon consideration of a
series of factors, a new overlay area code that would be
available (either temporarily or permanently) for certain
kinds of telecommunications services or technologies. Third
Order, 17 F.C.C.R. at 285–94. The second challenge involves
‘‘rationing.’’ The Commission delegated authority to state
commissions to ration the distribution of central office codes
when the area code without rationing would be exhausted
before an area code relief plan could be implemented; ration-
ing can be used only where a state has ordered specific area
code relief and established an implementation date, and the
industry has been unable to agree on a rationing plan. See
In re Petition for Declaratory Ruling & Request for Expedit-
ed Action on the July 15, 1997 Order of the Pa. Pub. Util.
Comm’n Regarding Area Codes 412, 610, 216, and 717, 13
F.C.C.R. 19,009, 19,025–26 (1998) (‘‘Pennsylvania Numbering
Order’’); see also Second Order, 16 F.C.C.R. at 333–34. The
third challenge involves the scope of audits under state law
pursuant to the Commission’s delegation of authority. Sec-
ond Order, 16 F.C.C.R. at 344–50; Third Order, 17 F.C.C.R.
at 294–300.
II.
The Commission contends, as a threshold matter, that
Sprint’s challenge to its decision to lift the ban on specialized
overlays is not ripe for review because the Commission has
yet to authorize any overlays and that Sprint lacks standing
6
to challenge it. According to the Commission, in light of the
discretionary and case-by-case nature of its decision on spe-
cialized overlays, the need for additional facts with respect to
any particular specialized overlay that the Commission might
approve, and the lack of any hardship to Sprint from the
Commission’s decision to consider possible specialized over-
lays in the future, there is no need for the courts to address
Sprint’s challenge now. Sprint responds that the only issues
it raises are legal issues, that the Commission’s decision is
final and binding, and that it would suffer hardship were
judicial review delayed because this may be the only mean-
ingful opportunity for judicial review if area code relief is
urgently needed and an overlay is implemented before the
court reaches a decision.
The seminal case of Abbott Laboratories v. Gardner, 387
U.S. 136, 149 (1967), overruled on other grounds by Califano
v. Sanders, 430 U.S. 99, 105 (1977), set forth two separate
prongs for analysis of whether a case is ripe for judicial
review: ‘‘the fitness of the issues for judicial decision and the
hardship to the parties of withholding court consideration.’’
More recently in Ohio Forestry Ass’n v. Sierra Club, 523 U.S.
726, 733 (1998), the Court described a three-part test: wheth-
er delay in judicial review will ‘‘cause hardship to the plain-
tiffs,’’ whether ‘‘judicial intervention would inappropriately
interfere with further administrative action,’’ and ‘‘whether
the courts would benefit from further factual development of
the issues presented.’’ In either event, the fundamentals of
the analysis remain the same. See United States Air Tour
Association v. FAA, 298 F.3d 997, 1013–14 (D.C. Cir. 2002),
cert. denied, 123 S. Ct. 1783 (2003).
Fitness of the issues for judicial decision is more likely to
be found where ‘‘the issue tendered is a purely legal one,’’
Abbott Labs., 387 U.S. at 149, and this court has held that the
question of whether an agency decision is arbitrary and
capricious is a purely legal question, Fox Television Stations,
Inc. v. FCC, 280 F.3d 1027, 1039 (D.C. Cir.), opinion modified
on reh’g on other grounds by 293 F.3d 537 (D.C. Cir. 2002).
Final agency action pursuant to the Administrative Procedure
Act (‘‘APA’’) is a ‘‘crucial prerequisit[e]’’ to ripeness, Better
7
Government Association v. Dep’t of State, 780 F.2d 86, 88
(D.C. Cir. 1986); see Abbott Labs., 387 U.S. at 149, and it is
clear that the Third Order is ‘‘final’’ for purposes of the APA.
However, issues still may not be fit for review where the
agency retains considerable discretion to apply the new rule
on a case-by-case basis, particularly where there is a complex
statutory scheme or there are other difficult legal issues that
are implicated by the agency action. Toilet Goods Ass’n v.
Gardner, 387 U.S. 158, 163–64 (1967). In such circumstances,
judicial review ‘‘is likely to stand on a much surer footing in
the context of a specific application of [the] regulation than
could be the case in the framework of [a] generalized chal-
lenge.’’ Id. at 164. Guided by this instruction, this court has
held that where the agency retains substantial discretion to
implement its decision, the decision is not ripe for judicial
review until it has been implemented in particular circum-
stances. See, e.g., Office of Communication of the United
Church of Christ v. FCC, 826 F.2d 101, 105–08 (D.C. Cir.
1987); ACLU v. FCC, 823 F.2d 1554, 1576–77 (D.C. Cir.
1987); see also Action Alliance of Senior Citizens v. Heckler,
789 F.2d 931, 940–42 (D.C. Cir. 1986). On the other hand,
where the agency has replaced a prohibition or right with a
discretionary process and applied its new process, the court
has held that a challenge to the agency decision is ripe for
judicial review: the agency has crystalized its position and to
that extent it has been applied so that it has a direct and
immediate impact. See Better Gov’t Ass’n, 780 F.2d at 92–93;
cf. Media Access Project v. FCC, 883 F.2d 1063, 1070–71 (D.C.
Cir. 1989).
The fundamental purpose of the ripeness doctrine is ‘‘to
prevent the courts, through avoidance of premature adjudica-
tion, from entangling themselves in abstract disagreements
over administrative policies, and also to protect the agencies
from judicial interference until an administrative decision has
been formalized and its effects felt in a concrete way by the
challenging parties.’’ Nat’l Park Hospitality v. Dep’t of the
Interior, 71 U.S.L.W. 4399, 4400 (U.S. May 27, 2003) (quoting
Abbott Labs., 387 U.S. at 148–49). Sprint’s challenge to the
Commission’s decision to lift the ban on specialized overlays
8
rests on the ground that the Commission did not adequately
explain its change from an absolute ban to a discretionary
review process and that circumstances have not adequately
changed to justify the Commission’s change in position. So
understood, Sprint’s challenge focuses on whether the Com-
mission unlawfully reached its decision, i.e., whether it might
ever be able lawfully to exercise its discretion to approve a
specialized overlay, such that the court would review whether
the Commission has provided a reasonable explanation for
why such discretion might be necessary. See Natural Res.
Def. Council, Inc. v. United States Envtl. Prot. Agency, 859
F.2d 156, 168 (D.C. Cir. 1988).
To determine whether the Commission has adequately
explained its changed position, however, would require the
court to address Sprint’s claims that the discriminatory flaws
of specialized overlays that were identified by the Commis-
sion in imposing the ban are still present, and that specialized
overlays will not be viable in the near future because the
Commission is about to implement number portability allow-
ing users of both landline and wireless telephones to switch
their service without changing their telephone number.
These claims concern how the Commission might improperly
exercise its discretion in the future. Because the Commission
has reserved judgment on whether to approve any specialized
overlays that might mandate ‘‘take backs’’ (requiring wireless
consumers to change their phone numbers) or that might
result in inefficient uses of numbering resources, resolution of
Sprint’s claims will depend on the concrete facts of a particu-
lar specialized overlay proposal. As for number portability,
because (at the time of the Orders on review) the Commission
concluded that number portability was a requirement for
thousands-block number pooling, Second Order, 16 F.C.C.R.
at 363, its analysis of whether specialized overlays should be
restricted to non-pooling service providers and phased out
when pooling is introduced, Third Order, 17 F.C.C.R. at 288–
91, also left the question to future case-by-case decisionmak-
ing. In a future decision by the Commission to approve,
disapprove, or approve with conditions a specialized overlay
proposal, these concerns might well be addressed, and the
9
Commission as a result might never apply the specialized
overlay exception in a manner that will harm Sprint. See,
e.g., Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1296–97
(D.C. Cir. 2000). Indeed, Sprint conceded during oral argu-
ment that if the specialized overlays were limited to phone
numbers that were not tied to particular geographic locations,
such as ATMs, faxes, or OnStar services, it might suffer no
injury.
In the end, while Sprint’s contention that the Commission
has not adequately explained its decision to lift the ban might
theoretically be ripe for review on its own, the success of its
challenge, which is based on claims of discriminatory effect
and inefficiency, will depend in large part on the particular
specialized overlays that the Commission might approve in
the future. In light of the Commission’s enumeration of the
factors it will consider in evaluating a specialized overlay
proposal, factors reflecting Sprint’s concerns, the Commission
might approve a proposal in a manner such that Sprint’s
concerns may never be realized. We therefore conclude that
Sprint’s general challenge to the Commission’s decision to lift
the ban is not readily detached from its contentions in
support of that general challenge. Office of Communication,
826 F.2d at 108. By declining to decide Sprint’s general
challenge now, we ‘‘preserve ‘our own ability to decide intelli-
gently,’ ’’ id. (quoting Am. Trucking Ass’ns v. ICC, 747 F.2d
787, 790 (D.C. Cir. 1984)), not only Sprint’s challenge but any
future challenges to specific specialized overlay proposals.
See also Midwestern Gas Transmission Co. v. FERC, 589
F.2d 603, 620 (D.C. Cir. 1978); cf. Natural Res. Def. Council,
859 F.2d at 168; Ark. Power & Light Co. v. ICC, 725 F.2d 716
(D.C. Cir. 1984).
With respect to hardship, until and unless the Commission
approves a specialized overlay proposal, Sprint is ‘‘free to
conduct its business as it sees fit,’’ Nat’l Park Hospitality
Ass’n, 71 U.S.L.W. at 4401. Nor are there any ‘‘adverse
effects of a strictly legal kind’’ from the Commission’s Orders,
because the decision to lift the ban ‘‘does not command
anyone to do anything, or to refrain from doing anything; it
does not grant, withhold, or modify any formal legal license,
10
power, or authority; it does not subject anyone to any civil or
criminal liability; and it creates no legal rights or obli-
gations,’’ id. (quoting Ohio Forestry Ass’n, 523 U.S. at 733).
Unnecessary uncertainties and costs associated with challeng-
ing future specialized overlay proposals are not expenses of
the kind ‘‘sufficient by itself to justify review in a case that
would otherwise be unripe.’’ Ohio Forestry Ass’n, 523 U.S.
at 734–35; see also Webb v. Dep’t of Health & Human Servs.,
696 F.2d 101, 107 & n.40 (D.C. Cir. 1982). Sprint’s sugges-
tion that there may not be time for judicial review in the
future because of the urgency of area code relief proceedings
ignores the possibility of judicial stays and expedited review,
or, where a specialized overlay has already been implemented
by a state, conversion of the specialized overlay to an all-
services overlay after the fact. See Office of Communication,
826 F.2d at 109.
For these reasons, we hold that Sprint’s challenge to the
Commission’s decision to lift the ban on specialized overlays is
not ripe for judicial review, and we dismiss that part of the
petition.
III.
Sprint also challenges the Commission’s decisions authoriz-
ing states to implement rationing of telephone numbers and
authorizing state auditing. Consistent with our standard of
review that examines whether the Commission’s orders are
arbitrary or capricious, an abuse of discretion, or contrary to
law, see United States Telecom Ass’n v. FCC, 227 F.3d 450,
461 (D.C. Cir. 2000), we hold that Sprint’s challenges are
unpersuasive.
A.
As a threshold matter, we reject the contention of the
California Public Utilities Commission (‘‘CPUC’’) as interve-
nor that Sprint’s challenge to state rationing is moot. CPUC
asserts that ‘‘the need for rationing has been all but eliminat-
ed,’’ Intervenor’s Br. at 17, as wireless carriers have entered
into thousands-block number pooling as of November 2002.
11
However, CPUC’s brief shows that the need for rationing has
not been entirely eliminated, for it is careful to state that ‘‘the
need for rationing has been all but eliminated,’’ and that
‘‘rationing will most likely be unnecessary.’’ Intervenor’s Br.
at 17–18 (emphasis added). Moreover, Sprint points out that
pooling is only occurring in some geographic areas in the
United States.
Sprint interprets the Commission’s orders as establishing a
blanket rule that numbers should only be allocated on a
needs-based, first-come, first-served basis, and that rationing
is an unexplained violation of this principle. Yet Sprint does
not dispute that states were authorized to undertake ration-
ing in the Pennsylvania Numbering Order, which preceded
the Orders on review. Further, in the Second Order, the
Commission referred to rationing as an authority that had
been delegated to states. 16 F.C.C.R. at 331–34; see also
Third Order, 17 F.C.C.R. at 293–94.
Thus, even though the First Order did not refer to ration-
ing in developing the needs-based, first-come, first-served
principles for general number allocation, there is no conflict
between the rationing rules in the Pennsylvania Numbering
Order and the allocation principles developed in the First
Order. In the First Order, the Commission developed new
principles for the general allocation of numbers, but did not
disturb its authorization in the Pennsylvania Numbering
Order for states to use rationing in specified exigent circum-
stances. See 15 F.C.C.R. at 7610–21. That is confirmed by
Sprint’s characterization of the Second Order as mentioning
rationing without stating that it had been eliminated.
The Commission defends the reasonableness of its decision
by emphasizing the limited circumstances in which it has
authorized rationing, i.e., where an area code will be exhaust-
ed before timely and expeditious implementation of an al-
ready developed area code relief plan and where industry has
been unable to develop a plan to allocate remaining numbers.
See Second Order, 16 F.C.C.R. at 333–34. Sprint does not
dispute that, in order to qualify for rationing, a service
provider must first show need. Further, the Commission
12
emphasizes that in the extreme circumstances when rationing
is authorized, the lottery that most rationing programs use is
necessary to distribute extremely limited numbering re-
sources in a more equitable manner than first-come, first-
served distribution. Under the circumstances, we conclude
that the Commission adequately developed its rationale that
rationing is superior to first-come, first-served distribution in
exigent circumstances in the Pennsylvania Numbering Order
when it stated that there is a need to ensure distribution on
‘‘an equitable basis until [a] new area code is introduced.’’ 13
F.C.C.R. at 19,026. Not only is rationing permissible under
current Commission policy but Sprint’s position would result
in a race-to-the-regulator filing system when area codes are
about to be exhausted, potentially resulting in an inefficient
and inequitable distribution of numbers among carriers who
have demonstrated a need for numbers.
Although we conclude, contrary to the Commission’s brief,
that Sprint preserved in comments to the Commission its
contention that a rationing system is a state barrier to entry
in violation of 47 U.S.C. § 332(c)(3)(A), the contention fails.
Section 332(c)(3)(A) generally prohibits a state or local gov-
ernment from ‘‘regulat[ing] the entry of or the rates charged
by any commercial mobile [phone] service.’’ However, Com-
mission policy requires states to establish a ‘‘safety valve’’
that grants numbering resources to providers that otherwise
would have no opportunity to enter into the telecommunica-
tions market. See Second Order, 16 F.C.C.R. at 330–31;
Third Order, 17 F.C.C.R. at 279–82; see also Second Order,
16 F.C.C.R. at 334, 343; Pennsylvania Numbering Order, 13
F.C.C.R. at 19,039. While Sprint may object that the safety
valve provision is inadequate to ensure that carriers’ needs
are met, that issue is best addressed in the context of a
specific proposal rather than in a general challenge to the
Commission’s regulations. See Toilet Goods Ass’n, 387 U.S.
at 163–64; Ark. Light & Power, 725 F.2d at 725.
Sprint’s other rationing objections fail. The Commission
was not required to respond in the Orders to Sprint’s conclu-
sory comments that § 332(c)(3)(A) prevents rationing because
rationing ‘‘constitute[s] entry regulation that the Act prohib-
13
its.’’ Petitioner’s Br. at 37; cf. Reytblatt v. United States
Nuclear Regulatory Comm’n, 105 F.3d 715, 722 (D.C. Cir.
1997). As for Sprint’s general contention that the Commis-
sion’s rationing decision is inconsistent with a first-come,
first-served, needs-based distribution system, the Commission
‘‘need not address every comment,’’ but need only ‘‘respond in
a reasoned manner to those [comments] that raise significant
problems’’ in order to refute a conclusion that ‘‘the agency’s
decision was not based on a consideration of the relevant
factors.’’ See City of Waukesha v. EPA, 320 F.3d 228, 257–58
(D.C. Cir. 2003) (quotations omitted). As discussed, there
was no inconsistency that required a response. Also, Sprint’s
passing references that rationing is not ‘‘equitable,’’ in viola-
tion of 47 U.S.C. § 251(e)(1), either state an ‘‘asserted but
unanalyzed’’ claim that is not properly presented to the court,
see City of Waukesha, 320 F.3d at 254, or fail to consider that
a § 251(e)(1) claim based on alleged disparate treatment by
rationing programs of wireless carriers that do not participate
in pooling is met by the expansion of pooling to most wireless
carriers in November, 2002. See Second Order, 16 F.C.C.R.
at 328–30 & n.126; Third Order, 17 F.C.C.R. at 263 & n.51;
In re Verizon Wireless’s Petition for Partial Forbearance
from the Commercial Mobile Radio Servs. Number Portabili-
ty Obligation, 17 F.C.C.R. 14,972, 14,981–83, 14,986 (2002).
Moreover, Sprint fails to explain how the random assignment
of limited numbers by lottery is, in general, any less equitable
than assignment on a first-come, first-served basis.
B.
Regarding state audits, Sprint contends that § 251(e)(1)
has preempted all state authority in telephone numbering
administration, and consequently, the Commission’s attempt
to authorize state audits is unlawful. Section 251(e)(1) does
provide that the Commission has ‘‘exclusive jurisdiction over
those portions of the [NANP] that pertain to the United
States.’’ 47 U.S.C. § 251(e)(1). But it also provides that
‘‘[n]othing in this paragraph shall preclude the Commission
from delegating to State commissions or other entities all or
any portion of such jurisdiction.’’ Id. The only question then
14
is what audit authority the Commission has delegated to state
commissions.
The Commission declined in the Second Order ‘‘to delegate
authority to the states to conduct’’ audits of service providers’
use of telephone numbers or compliance with the numbering
regulations. 16 F.C.C.R. at 347. The Commission also stat-
ed, however, that ‘‘[i]n declining to delegate authority to
states to perform audits under the national program, we do
not intend to preempt any state authority to perform audits
under state law.’’ Id. In the Third Order the Commission
stated that:
in recognition that states can serve a valuable role in
helping the Commission to monitor carriers’ number
use, we clarify that states may conduct audits, at
their own expense, to determine whether a particu-
lar carrier is in compliance with the Commission’s
numbering rules to discharge their own responsibili-
ties. For example, state audits that seek to gather
information needed to facilitate area code relief deci-
sions would be appropriate to the extent that the
information sought is not available through another
source.
17 F.C.C.R. at 297. Although the Commission did not use the
word ‘‘delegate,’’ it is clear that the Commission was referring
to its prior delegation to state commissions. In the First
Order, the Commission addressed whether states could re-
quire regular reporting of data from service providers with
respect to number utilization:
We will not delegate authority to the states to
impose additional regularly scheduled reporting re-
quirements on any carriers. Such independent au-
thority would undermine the purpose of establishing
regularly scheduled federal reporting requirements,
namely a uniform standard that all carriers could
use in their record keeping and reporting activi-
tiesTTTT Thus, we supersede the authority specifi-
cally delegated to some states to require such re-
porting. We do not intend, however, to supplant
15
independent state authority exercised pursuant to
state law unrelated to number administration, but
we encourage state commissions to rely on the re-
porting requirements that we adopt herein. More-
over, we do recognize that from time to time a state
may need to audit a specific carrier and will need
access to more granular data. Therefore, our prohi-
bition on state-ordered reporting does not apply in
instances where states need to gather data for a
specific purpose, as long as these data reporting
requirements do not become regularly scheduled
state-level reporting requirement[s].
16 F.C.C.R. at 7606–07. Moreover, the Commission specifi-
cally granted authority to state commissions to ‘‘investigate
and determine whether code holders have ‘activated’ [central
office codes] assigned to them within the time frames speci-
fied.’’ 15 F.C.C.R. at 7680.
Considering the First Order and Third Order together, we
agree with the Commission’s statement in its brief that the
Commission did not intend to prevent state commissions from
performing audits in areas in which the Commission has
delegated authority to the state commissions to the extent
that the commissions have auditing authority under state law.
Respondent’s Br. at 36–38. Examples discussed in the Or-
ders are area code relief, where the Commission has delegat-
ed authority to state commissions, see, e.g., Third Order, 17
F.C.C.R. at 297, and utilization reports, which are necessary
in order for the states ‘‘to meet their obligations with respect
to area code relief,’’ First Order, 15 F.C.C.R. at 7606. Be-
cause this analysis is sufficiently developed in the Orders on
review, Sprint’s post hoc attack fails. Moreover, to the
extent that Sprint responds that state audits might serve no
particular purpose because of the conditions that the Commis-
sion has imposed, see Third Order, 17 F.C.C.R. at 297, or that
state audits might pose an unnecessary burden on its opera-
tions, its challenge is unripe as a response will depend on the
particular context of a state audit. See Beach Communica-
tions, Inc. v. FCC, 959 F.2d 975, 983–85 (D.C. Cir. 1992); see
also Atl. States Legal Foundation v. EPA, 325 F.3d 281, 284–
16
85 (D.C. Cir. 2003). Sprint has identified no hardship that it
would suffer in leaving such objections to a case-by-case
review.
Accordingly, we dismiss that part of the petition for review
in which Sprint’s challenge is not ripe for judicial review and
we deny the remainder of the petition.