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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2003 Decided November 25, 2003
No. 02-1221
AT&T CORPORATION,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
QWEST COMMUNICATIONS INTERNATIONAL INC., ET AL.,
INTERVENORS
Consolidated with
Nos. 02-1240, 02-1263, 02-1275
On Petitions for Review of an Order of the
Federal Communications Commission
David W. Carpenter argued the cause for IXC and LEC
petitioner-intervenors. With him on the briefs were Peter H.
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
Jacoby, Judy Sello, Daniel Meron, Jonathan F. Cohn, Robert
B. McKenna, William Single IV, and Jeffrey A. Rackow.
Andrew G. McBride argued the cause for petitioners Sprint
Spectrum L.P. and Cellco Partnership. With him on the
briefs were John T. Scott III, Luisa L. Lancetti, and R.
Michael Senkowski. Kenneth D. Patrich and Lewis A. Tol-
lin entered appearances.
John E. Ingle, Deputy Associate General Counsel, Federal
Communications Commission, argued the cause for respon-
dents. With him on the brief were R. Hewitt Pate, Acting
Assistant Attorney General, U.S. Department of Justice, Rob-
ert B. Nicholson and Robert J. Wiggers, Attorneys, John A.
Rogovin, General Counsel, Federal Communications Commis-
sion, and Richard K. Welch and Laurel R. Bergold, Counsel.
Luisa L. Lancetti, Caressa D. Bennet and Gregory W.
Whiteaker were on the brief for intervenors Sprint Spectrum
L.P. and Rural Telecommunications Group. Kenneth D. Pat-
rich entered an appearance.
Peter H. Jacoby, Judy Sello, David W. Carpenter, Daniel
Meron, Robert B. McKenna, William Single IV, and Jeffrey
A. Rackow were on the brief for IXC and LEC intervenors in
Case Nos. 02-1263 and 02-1275. Jonathan F. Cohn and Mark
C. Rosenblum entered appearances.
Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,
Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: AT&T Corporation (‘‘AT&T’’) and
Sprint Spectrum L.P. (‘‘Sprint PCS’’ or ‘‘Sprint’’), along with
Cellco Partnership, petition this court for review of a declara-
tory ruling of the Federal Communications Commission
(‘‘FCC’’ or ‘‘Commission’’) responding to a primary jurisdic-
tion referral from the United States District Court for the
Western District of Missouri. The referral arose during the
course of litigation between AT&T and Sprint in Missouri in
3
which Sprint sought compensation from AT&T for its use of
Sprint’s wireless network. AT&T removed the case from
state court to the federal district court, which then referred
specific questions to the FCC under the doctrine of primary
jurisdiction. In its referral order, the district court inquired
of the FCC (1) whether Sprint may charge access fees to
AT&T for access to the Sprint PCS wireless network and, if
so, (2) the reasonableness of Sprint’s charges.
After receiving petitions for declaratory rulings from both
AT&T and Sprint, along with public comments, the Commis-
sion held that Sprint is entitled to collect access charges from
AT&T only to the extent that a contract between the parties
imposes a payment obligation on AT&T. The FCC declined
to determine the reasonableness of any rate until after the
district court determined whether the parties are bound by a
contract. Both AT&T and Sprint raise numerous challenges
to the Commission’s ruling, none of which are properly before
this court for review. Accordingly, we dismiss the petitions
for review.
I. BACKGROUND
The facts underlying this case are largely undisputed.
Because this information is adequately set forth in the Com-
mission’s ruling that is the subject of review here, see In the
Matter of Petitions of Sprint PCS and AT&T Corp. for
Declaratory Ruling Regarding CMRS Access Charges, 17
F.C.C.R. 13,192, at 13,193-95 (2002), reported at 67 Fed. Reg.
49,242 (F.C.C. 2002) (hereinafter ‘‘Declaratory Ruling’’), we
will simply summarize the most important facts to highlight
what is at issue.
In 1998, petitioner Sprint PCS, a commercial mobile tele-
phone service (‘‘CMRS’’) provider, started billing AT&T for
the costs of terminating interexchange traffic bound for its
customers. AT&T refused to pay the Sprint invoices. De-
claratory Ruling, 17 F.C.C.R. at 13,193. On August 8, 2000,
Sprint sought to enforce payment by filing suit in state court
in Missouri seeking a monetary judgment against AT&T on
three causes of action: breach of contract, quantum meruit,
4
and action on account. Id. AT&T then removed the case to
federal district court in the Western District of Missouri.
Sprint moved to remand the case back to state court, which
AT&T opposed. Sprint denied the existence of diversity
between the parties and claimed that its state-law claims in
no way raised any federal question. Plaintiff’s Motion to
Remand at 1-2, Sprint Spectrum L.P. v. AT&T Communica-
tions, Inc., No. 00-0973-CV-W-5 (W.D. Mo. 2001), Joint Ap-
pendix (‘‘J.A.’’) 61-62. In its opposition, AT&T argued, inter
alia, that Sprint’s state-law claims were wholly preempted by
47 U.S.C. § 332, because they would require the court to
establish a rate for terminating access. Defendant’s Sugges-
tions in Opposition to Plaintiff’s Motion to Remand at 4-11,
Sprint Spectrum L.P. v. AT&T Communications, Inc., No.
00-0973-CV-W-5 (W.D. Mo. 2001), J.A. 95-102.
The district court denied Sprint’s motion to remand, hold-
ing that it had jurisdiction based upon the diversity of the
parties without addressing whether or not Sprint’s action
raised federal claims. Sprint Spectrum L.P. v. AT&T Com-
munications, Inc., No. 00-0973-CV-W-5 (W.D. Mo. Feb. 8,
2001) (order denying Sprint’s motion to remand), reprinted in
J.A. 169. AT&T then asked the district court to refer the
case to the Commission under the doctrine of primary juris-
diction. See Sprint Spectrum L.P. v. AT&T Corp., 168 F.
Supp. 2d 1095, 1096 (W.D. Mo. 2001). Sprint opposed that
motion, arguing that it was simply seeking payment for
services rendered using state-law theories that do not involve
the Communications Act or the FCC’s special expertise. Id.
at 1099.
On July 24, 2001, the district court referred two issues to
the Commission under the doctrine of primary jurisdiction.
Id. at 1096. The court was very precise in setting forth the
terms of its referral:
ORDERED that Defendant AT&T Corporation’s
Motion for Referral of Issues to the FCC Under the
Doctrine of Primary Jurisdiction and for Dismissal
or a Stay Proceedings Pending the Referral is
GRANTED. The questions of whether Sprint may
5
charge access fees to AT&T for access to the Sprint
PCS wireless network and, if so, the reasonableness
of Sprint’s charges for such services are referred to
the FCC for further consideration. It is further
ORDERED that Defendant AT&T Corporation is
directed to prepare and submit the appropriate fil-
ings to bring these issues before the FCC by Friday,
August 24, 2001.
Id. at 1102.
On October 22, 2001, AT&T and Sprint filed separate
petitions seeking declaratory rulings from the FCC. The
Commission described these filings, as follows:
In its petition, Sprint PCS asks the Commission to
find that there is no federal law or Commission
policy that bars Sprint PCS from recovering its call
termination costs from AT&T. Sprint PCS also
asks [the Commission] to find that AT&T’s refusal to
pay access charges to Sprint PCS is unreasonably
discriminatory under section 202(a) of the Communi-
cations Act of 1934, as amended (the Act), and
unjust and unreasonable under section 201(b) of the
Act. In its petition, AT&T asks the Commission to
find that CMRS carriers should continue to recover
their costs from their end users, not by imposing
access charges on IXCs. If CMRS carriers are
permitted to impose access charges, AT&T asks that
those charges be capped at the reciprocal compensa-
tion rate for local traffic and assessed only prospec-
tively.
Declaratory Ruling, 17 F.C.C.R. at 13,193-94.
Because the parties’ petitions for declaratory rulings were
much wider in scope than the district court’s referral order,
the FCC’s Declaratory Ruling is somewhat free-wheeling in
its discourse. As a consequence, there are numerous obser-
vations in the Declaratory Ruling that do not purport to
respond to the district court’s referral order or to otherwise
pass judgment on any issue. Cut to its core, however, the
6
FCC Declaratory Ruling is fairly precise in responding to the
referral order. The principal terms of the Declaratory Rul-
ing are as follows:
7. Sprint PCS is correct that neither the Communi-
cations Act nor any Commission rule prohibits a
CMRS carrier from attempting to collect access
charges from an interexchange carrier.
Id. at 13,195.
8. That Sprint PCS may seek to collect access
charges from AT&T does not, however, resolve the
question whether Sprint PCS may unilaterally im-
pose such charges on AT&T.
Id. at 13,196.
9. We find that there is no Commission rule that
enables Sprint PCS unilaterally to impose access
charges on AT&T.
Id. at 13,196.
12. There being no authority under the Commis-
sion’s rules or a tariff for Sprint PCS unilaterally to
impose access charges on AT&T, Sprint PCS is
entitled to collect access charges in this case only to
the extent that a contract imposes a payment obli-
gation on AT&T. While it is preferable for carriers
to memorialize such contracts in a written agree-
ment, the parties here agree that there is no written
agreement or any express contract between AT&T
and Sprint PCS. Nevertheless, the law recognizes –
as has the Commission – that an agreement may
exist even absent an express contract.
13. Turning to the question whether there was
such an agreement here, we believe that it is an
issue that should be resolved by the Court. We
interpret the Court’s primary jurisdiction referral as
seeking our input on the federal communications law
questions related to this dispute. Because the exis-
tence of a contract is a matter to be decided under
7
state law, we defer to the court to answer this
question.40
40 Sprint PCS also has advanced a quantum meruit
argument under Missouri law in the pending litigation.
Quantum meruit is premised on the notion that a party
receiving service would be unjustly enriched if it were not
required to pay for that service. Although we defer to the
court to address this state law claim, we note that an
award of quantum meruit would require the court to
establish a value (i.e., set a rate) for the service provided in
the past. We note that there is a substantial question
whether a court may award quantum meruit or other
equitable relief under state law without running afoul of
section 332(c)(3)(A). 47 U.S.C. § 332(c)(3)(A); see, e.g.,
Bastien v. AT&T Wireless, 205 F.3d 983, 986 (7th Cir.
2000) (‘‘If Bastien’s complaint in fact raises regulatory
issues preempted by Congress, then the claims would fail
as a matter of law since they are couched in terms of two
state law actions.’’); Gilmore v. Southwestern Bell Mobile
Services, 156 F. Supp. 2d 916, 925 (N.D. Ill. 2001) (state
law claim based on unjust enrichment preempted under
section 332(c)(3)(A)).
Id. at 13,198.
Paragraph 18 of the Declaratory Ruling rejects Sprint’s
claims under §§ 201(b) and 202(a) as premature:
18. We need not address Sprint PCS’s claims un-
der sections 201(b) and 202(a) at this time. Until
the court determines the respective obligations of
the parties, in particular whether AT&T has any
obligation to pay Sprint PCS under a contract, the
Commission has no basis on which to assess whether
AT&T is subject to sections 201(b) or 202(a) in these
circumstances and, if so, whether its actions violate
those statutory provisions.
Id. at 13,200. The Commission also declined to entertain
issues relating ‘‘either to the prospective treatment of CMRS-
IXC interconnection or to issues beyond the scope of those
presented for Commission resolution in the primary jurisdic-
8
tion referral.’’ Id. Rather, the Commission firmly stated
that the Declaratory Ruling merely ‘‘clarifies requirements
under [the FCC’s] existing rules.’’ Id.
In its petition for review, AT&T argues that the Declarato-
ry Ruling is contrary to law, because, in allegedly allowing a
state court to determine whether it owes access charges
under an implied contract or quantum meruit, the Commis-
sion departed from its precedent holding that states are
preempted by 47 U.S.C. § 332(c)(3)(A) from setting rates for
intercarrier compensation. Sprint contends, in its petition,
that the Declaratory Ruling is arbitrary and capricious in not
requiring AT&T to pay access charges. Sprint also argues
that the FCC favored one set of providers and one type of
communication technology over another in violation of the
Communications Act. And, finally, Sprint challenges obser-
vations in the Declaratory Ruling that appear adverse to
Sprint’s interests but which have no binding legal effect. We
deny both petitions, because neither AT&T’s nor Sprint’s
claims are ripe for consideration by this court.
II. ANALYSIS
A. Standard of Review
In order to succeed in their challenges, AT&T and Sprint
must demonstrate that the Declaratory Ruling is ‘‘arbitrary,
capricious, an abuse of discretion, or otherwise not in accor-
dance with law.’’ See 5 U.S.C. § 706(2)(A) (1996).
Highly deferential, [the arbitrary and capricious]
standard presumes the validity of agency action,
requiring us to determine whether the agency has
considered the relevant factors and ‘‘articulate[d] a
rational connection between the facts found and the
choice made.’’ Motor Vehicle Mfrs. Ass’n of the
United States, Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443
(1983) (internal quotation marks omitted). We ‘‘may
reverse only if the agency’s decision is not supported
by substantial evidence, or the agency has made a
9
clear error in judgment.’’ Kisser v. Cisneros, 14
F.3d 615, 619 (D.C. Cir. 1994).
AT&T Corp. v. FCC, 220 F.3d 607, 616 (D.C. Cir. 2000).
The court reviews Commission constructions of the Com-
munications Act in accordance with Chevron USA Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984),
and its progeny. Under Chevron, ‘‘[i]f the intent of Congress
is clear,’’ the court ‘‘must give effect to the unambiguously
expressed intent of Congress.’’ Chevron, 467 U.S. at 842-43.
If ‘‘Congress has not directly addressed the precise question
at issue,’’ the agency’s statutory interpretation is entitled to
deference, as long as it is reasonable. Id. at 843-44. Chevron
deference is due, however, only if the agency has acted
pursuant to ‘‘delegated authority’’ and the agency action has
the ‘‘force of law.’’ See Christensen v. Harris County, 529
U.S. 576, 587 (2000); United States v. Mead Corp., 533 U.S.
218, 226-27 (2001).
In applying these standards, ‘‘[t]he job of judges is to ask
whether the Commission made choices reasonably within the
pale of statutory possibility.’’ Verizon Communications Inc.
v. FCC, 535 U.S. 467, 539 (2002).
B. Standing
The Commission initially argues that AT&T has suffered no
actual or imminent injury as a result of the Declaratory
Ruling and, therefore, lacks standing to challenge it. We
reject this argument. The Declaratory Ruling holds that
AT&T may be obligated to Sprint pursuant to an implied-in-
fact contract and it leaves the matter to the district court to
determine whether a contract exists. This portion of the
Declaratory Ruling clearly causes a cognizable injury to
AT&T which would be redressed with a favorable ruling from
this court.
In AT&T Corp. v. FCC, 317 F.3d 227, 238 (D.C. Cir. 2003),
we held that AT&T had standing to challenge an FCC order
determining that AT&T was liable for access charges to a
local exchange carrier, even though the order did not require
payment, because the order exposed AT&T to liability in
10
pending litigation. Similarly, AT&T has standing in this case
because the Declaratory Ruling exposes it to liability for
access charges in its pending litigation with Sprint.
C. Ripeness
The Commission argues, in the alternative, that AT&T’s
section 332(c)(3)(A) preemption claim is unripe for review,
because, first, the issue is presently unfit for decision by this
court and, second, a delay in judgment will cause no hardship
to AT&T. Likewise, the Commission argues that it reason-
ably deferred resolution of Sprint’s section 201(b) and 202(a)
claims until after the district court in Missouri decides wheth-
er AT&T has a contractual obligation to pay access charges.
The FCC also contends that Sprint’s remaining claims relate
to matters with respect to which the agency has issued no
final judgment; thus, according to the Commission, these
matters surely are not subject to judicial review.
The framework for assessing ripeness was established in
Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967), in
which the Supreme Court provided a two-pronged test that
requires a reviewing court to evaluate ‘‘both the fitness of the
issue for judicial decision and the hardship to the parties of
withholding court consideration.’’ As we noted in City of
Houston v. Department of Housing & Urban Development,
24 F.3d 1421, 1430-31 (D.C. Cir. 1994), ‘‘the ‘primary focus’ of
the ripeness doctrine is to balance ‘the petitioner’s interest in
prompt consideration of allegedly unlawful agency action
against the agency’s interest in crystallizing its policy before
that policy is subject to review and the court’s interest in
avoiding unnecessary adjudication and in deciding issues in a
concrete setting.’ ’’ Id. at 1430 (citing Eagle-Picher Indus-
tries v. EPA, 759 F.2d 905, 915 (D.C.Cir.1985)).
Under the ‘‘fitness of the issues’’ prong, the first question
for a reviewing court is ‘‘whether the disputed claims raise
purely legal questions and would, therefore, be presumptively
suitable for judicial review.’’ Better Gov’t Ass’n v. Dep’t
State, 780 F.2d 86, 92 (D.C. Cir. 1986); see also Payne
Enters., Inc. v. United States, 837 F.2d 486, 492 (D.C. Cir.
1988); Eagle-Picher, 759 F.2d at 915. We next consider
11
whether the court or the agency would benefit from postpon-
ing review until the policy in question has sufficiently ‘‘crys-
tallized’’ by taking on a more definite form. See Better Gov’t,
780 F.2d at 92.
The ‘‘hardship’’ prong of the Abbott Laboratories test is not
an independent requirement divorced from the consideration
of the institutional interests of the court and agency. Payne,
837 F.2d at 493. Thus, where there are no institutional
interests favoring postponement of review, a petitioner need
not satisfy the hardship prong. See, e.g., Consol. Rail Corp.
v. United States, 896 F.2d 574, 577 (D.C.Cir.1990). However,
where there are strong interests militating in favor of post-
ponement, we must weigh the potential hardship of delay on
the appellant. City of Houston, 24 F.3d at 1430-31 & n.9.
Under the ‘‘hardship’’ prong, we consider a claimant’s ‘‘inter-
est in immediate review.’’ Better Gov’t, 780 F.2d at 92. If
‘‘[t]he only hardship [a claimant] will endure as a result of
delaying consideration of [the disputed] issue is the burden of
having to [engage in] another suit,’’ this will not suffice to
overcome an agency’s challenge to ripeness. City of Hous-
ton, 24 F.3d at 1431-32.
In applying these standards to the instant petitions for
review, we agree with the Commission that the matters at
hand should be dismissed as unripe.
1. AT&T’s Petition
As noted above, the Commission’s Declaratory Ruling re-
sponded to the two questions referred by the district court:
whether Sprint may charge access fees to AT&T for access to
the Sprint PCS wireless network and, if so, the reasonable-
ness of Sprint’s charges for such services. See Sprint Spec-
trum L.P., 168 F. Supp. 2d at 1102. As to the first question,
the Commission held that AT&T was not required to pay
such charges absent a contractual obligation to do so. As to
the second question, the Commission responded, ‘‘until the
Court decides whether there was a contract, it is premature
to address the court’s second question regarding the reason-
ableness of any rate charged.’’ Declaratory Ruling, 17
F.C.C.R. at 13,192.
12
AT&T’s principal claim is that the FCC’s Declaratory
Ruling implicitly suggests that a state court might properly
determine that Sprint is entitled to access fees on the basis of
an implied-in-fact contract with no fixed price term (which
would require a state court determination of the ‘‘reasonable-
ness’’ of the access charges) or on the basis of quantum
meruit (which is an equitable claim not based on a contractual
commitment). AT&T argues, in particular, that, because all
of Sprint’s state-law claims would require the district court to
set a ‘‘reasonable’’ price for Sprint PCS’s services, those
claims are expressly preempted by 47 U.S.C. § 332(c)(3)(A).
Therefore, according to AT&T, the failure of the Declaratory
Ruling to hold Sprint’s state-law claims preempted is both
contrary to law and arbitrary. AT&T also contends that, in
failing to declare Sprint’s claims preempted, the Declaratory
Ruling is an unexplained departure from the FCC’s ruling in
In the Matter of Wireless Consumers Alliance, Inc., 15
F.C.C.R. 17,021 (2000) (also cited as ‘‘CMRS Preemption
Order’’) (interpreting § 332(c)(3)(A) to preempt state courts
from ‘‘determin[ing] the reasonableness of a prior rate’’).
The problem with AT&T’s argument is that it rests on
faulty premises: First, the Commission did not, as AT&T
suggests, declare that the district court was free to determine
the reasonableness of a prior rate. Second, the Commission
did not purport to depart from its ruling in Wireless Consum-
ers Alliance. And, third, the Commission did not resolve the
preemption issue, either explicitly or implicitly.
The Declaratory Ruling says that, ‘‘[b]ecause the existence
of a contract is a matter to be decided under state law, we
defer to the [district] court to answer this question.’’ Declar-
atory Ruling, 17 F.C.C.R. at 13,198. The Commission also
noted that ‘‘an agreement may exist even absent an express
contract.’’ Id. On this latter point, the Commission suggest-
ed that AT&T could be liable to Sprint on ‘‘[a]n implied-in-
fact contract,’’ which ‘‘is ‘founded upon a meeting of minds,
which, although not embodied in an express contract, is
inferred, as a fact, from conduct of the parties showing, in
light of the surrounding circumstances, their tacit under-
standing.’ ’’ Id. at n.38 (quoting Hercules, Inc. v. United
13
States, 516 U.S. 417, 424 (1996)). These determinations are
neither surprising, nor are they adverse to AT&T’s position.
Notably, AT&T and the Commission agree on three impor-
tant points: First, state courts may not determine the reason-
ableness of a prior rate or set a prospective charge for
service. Second, state courts may determine whether the
parties have in place a contract that fixes access charges.
And, third, access charges may be established by an express
contract or an implied-in-fact contract in which the price was
already fixed (such that the state court would not inquire into
the reasonableness of the rate). AT&T does not contest
these points and nothing in the Declaratory Ruling calls
these matters into question. Rather, AT&T essentially ar-
gues that the real dispute in this case concerns whether
Sprint may prevail against AT&T on state-law claims based
on either an implied-in-fact contract in which the price is open
or on a theory of quantum meruit.
AT&T does not seriously contest the Commission’s treat-
ment of the quantum meruit issue, for the agency left little
room for confusion on this point, strongly suggesting that a
claim based on quantum meruit would be preempted. See
Declaratory Ruling, 17 F.C.C.R. at 13,198 n.40. Instead,
AT&T’s major complaint is over the failure of the Declarato-
ry Ruling to hold that an open-price implied-in-fact contract
is preempted. In particular, AT&T fears that the district
court has already determined that Sprint may pursue an
implied-in-fact claim that, under Missouri law, will require the
court to determine the reasonableness of the rates for
Sprint’s services. See Petitioner AT&T’s Reply Br. at 3.
AT&T thus concludes that the FCC’s failure to decide the
preemption issue is arbitrary. We disagree.
The district court’s referral order asks the Commission
‘‘whether Sprint may charge access fees to AT&T for access
to the Sprint PCS wireless network and, if so, the reasonable-
ness of Sprint’s charges for such services.’’ See Sprint
Spectrum L.P., 168 F. Supp. 2d at 1102. Plainly, the referral
order does not assume the answers to the questions that are
being asked. And, in answer to these questions, the Declara-
14
tory Ruling merely ‘‘clarifies requirements under [the FCC’s]
existing rules.’’ Declaratory Ruling, 17 F.C.C.R. at 13,200.
In other words, in giving guidance to the district court, the
Commission merely recounted the established legal rules that
were in place during the time periods covering the dispute
between Sprint and AT&T. Id. at n.51. Therefore, AT&T’s
claim that the Declaratory Ruling is an arbitrary and capri-
cious departure from the existing legal regime as defined by
Wireless Consumers Alliance is simply mistaken. Indeed,
during oral argument, FCC counsel acknowledged that Wire-
less Consumers Alliance accurately reflects the legal land-
scape that was in place during the periods for which Sprint
seeks access fees from AT&T. Nothing in the Declaratory
Ruling counters this.
Wireless Consumers Alliance makes it clear that a state
court would ‘‘overstep its authority under Section 332 if, in
determining damages, it does enter into a regulatory type of
analysis that purports to determine the reasonableness of a
prior rate or it sets a prospective charge for services.’’
Wireless Consumers Alliance, 15 F.C.C.R. at 17,041. Howev-
er, Wireless Consumers Alliance also holds that § 332 does
not generally preempt state courts from awarding monetary
damages for breach of contract. Id. at 17,040. Rather, the
Commission stated that ‘‘whether a specific damage award or
damage calculation is prohibited by Section 332 will depend
on the specific details of the award and the facts and circum-
stances of the case,’’ and noted that ‘‘a consideration of the
price originally charged, for the purposes of determining the
extent of the harm or injury involved, is not necessarily an
inquiry into the reasonableness of the original price and
therefore is permissible.’’ Id. at 17,041.
AT&T concedes that if the Declaratory Ruling does not
abrogate the teachings of Wireless Consumers Alliance, and
if it merely defers the preemption issue to the district court,
and if it does not preclude AT&T from pursuing the preemp-
tion defense in district court, then the Declaratory Ruling
would be a simple deferral and maintenance of the status quo
and AT&T would have no viable claims at this time. See
Petitioner AT&T’s Reply Br. at 2. This is a telling conces-
15
sion from AT&T, because the Declaratory Ruling has pre-
cisely the effect sought by AT&T. The Declaratory Ruling
does not hold that the district court may avoid the preemp-
tion issue if it is raised by AT&T. In other words, if the
district court were to find only an open-price implied-in-fact
contract (or a claim based on quantum meruit) between
Sprint and AT&T, the Declaratory Ruling in no way fore-
closes AT&T from raising a preemption defense. Thus, as
AT&T concedes, it has no viable claims to pursue in this court
at this time.
Lacking finality, the issue raised by AT&T is not fit for
review. Furthermore, both the agency and the court would
benefit from postponing review until the district court in
Missouri determines whether there is any contract between
Sprint and AT&T. Under Wireless Consumers Alliance,
Sprint’s state-law claims may well be preempted if the district
court finds only an open-price, implied-in-fact contract (or a
claim based on quantum meruit) that requires it to set a
reasonable rate. The Commission reasonably declined to
decide that question until it had taken on a more definite
form.
Finally, where, as here, there are strong interests militat-
ing in favor of postponement, we must weigh the potential
hardship of delay in assessing whether to dismiss for want of
ripeness. On the record in this matter, AT&T has not
demonstrated hardship to overcome the FCC’s contention
that the case is unripe for review. The only hardship assert-
ed by AT&T is the ‘‘burden of fighting Sprint’s claims in
district court.’’ See Petitioner AT&T’s Reply Br. at 9-10, 12.
But the burden of participating in further administrative and
judicial proceedings does not constitute sufficient hardship to
overcome the agency’s challenge to ripeness. See Florida
Power & Light Co. v. EPA, 145 F.3d 1414, 1421 (D.C. Cir.
1998); see also Clean Air Implementation Project v. EPA,
150 F.3d 1200, 1205-06 (D.C. Cir. 1998). Since the preemp-
tion issue raised by AT&T before this court satisfies neither
the fitness nor the hardship requirements for ripeness, we
dismiss AT&T’s claims for want of ripeness.
16
2. Sprint’s Petition
Sprint has not alleged any hardship, so we only inquire
whether the issues it raises are fit for judicial review. Sprint
asks this court to vacate the observations in the Declaratory
Ruling that ‘‘CMRS carriers have never operated under the
same calling party’s network pays (CPNP) compensation
regime as wireline LECs,’’ that ‘‘[u]ntil 1998 TTT all CMRS
carriers recovered the cost of terminating long distance calls
from their end users, and not from interexchange carriers,’’
and that ‘‘[b]ecause both carriers charge their customers for
the service they provide, it does not necessarily follow that
IXCs receive a windfall in situations where no compensation
is paid for access service provided by a CMRS carrier.’’ See
Petitioner Sprint’s Br. at 28 (citing Declaratory Ruling, 17
F.C.C.R. at 13,198-99). Sprint claims that these historical
observations are somehow preclusive, in that they may influ-
ence the district court’s judgment on the contract claim or be
cited by other IXCs who refuse to pay Sprint’s access
charges.
It is clear that the passages from the Declaratory Ruling
cited by Sprint are merely descriptive statements by the
agency, not legal conclusions. The statements have no force
of law, so they cannot conclusively cause the adverse collater-
al consequences suggested by Sprint. In short, Sprint is
quibbling over FCC observations that have no binding effect
whatsoever. This is never a basis for review in this court.
Cf. Panhandle E. Pipe Line Co. v. FERC, 198 F.3d 266 (D.C.
Cir. 1999) (holding that there is nothing for a court to review
when an agency has never issued a final and binding judg-
ment that has the force of law).
Sprint further argues that the FCC unreasonably failed to
determine that AT&T’s refusal to pay was unjust and dis-
criminatory in violation of 47 U.S.C. §§ 201(b) and 202(a).
See Petitioner Sprint’s Br. at 35-37. The Declaratory Ruling
held that it need not address this question until the trial court
determined whether there was a contract. Declaratory Rul-
ing, 17 F.C.C.R. at 13,200. And during oral argument,
counsel for Sprint acknowledged that the Commission has
17
considered claims of discrimination and unreasonableness in
the past through complaints filed pursuant to § 208 of the
Communications Act. Therefore, the Commission was not
obliged to review these discrimination claims in a declaratory
ruling issued to address the two specific questions referred by
the district court. Whether AT&T’s refusal to pay violates
§§ 201 and 202 is beyond the scope of the referral. If the
occasion arises, the parties agree that Sprint is free to file a
complaint under 47 U.S.C. § 208 seeking redress for alleged
unjust and discriminatory practices. Since the Commission
properly deferred consideration of Sprint’s claims, there is
nothing for this court to review.
Finally, Sprint argues that the FCC failed in its statutory
duty to regulate interstate access charges and CMRS carriers
by not requiring AT&T to pay the termination charges Sprint
billed to AT&T. Petitioner Sprint’s Br. at 19-21. Sprint did
not raise this argument with the Commission, so it is not
properly before this court. Furthermore, the FCC’s regula-
tion of access charges and CMRS carriers is a matter of
policy that is beyond the scope of the referral questions
answered by the Declaratory Ruling. The basic rationale for
the ripeness doctrine is to prevent courts ‘‘from entangling
themselves in abstract disagreements over administrative pol-
icies.’’ Abbott Labs., 387 U.S. at 148. The regulation of
access charges for CMRS providers and other carriers is
currently the subject of proposed rulemaking. See In the
Matter of Developing a Unified Intercarrier Compensation
Regime, Notice of Proposed Rulemaking, 16 F.C.C.R. 9610
(2001), reported at 66 Fed. Reg. 28,410 (F.C.C. 2001). We
decline to interfere with those proceedings.
III. CONCLUSION
For the foregoing reasons, the petitions for review are
dismissed.