United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 15, 2007 Decided December 7, 2007
No. 06-1111
SPRINT NEXTEL CORPORATION,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
QWEST CORPORATION, ET AL.,
INTERVENORS
Consolidated with
06-1113, 06-1115, 06-1167, 06-1200
On Petitions for Review of an Order of the
Federal Communications Commission
Christopher J. Wright and David P. Murray argued the
cause for Carrier Petitioners. With them on the briefs were John
W. Butler, Robert K. Magovern, Russell M. Blau, Patrick J.
Donovan, Joshua M. Bobeck, Timothy J. Simeone, Thomas
Jones, Randy J. Branitsky and Mary C. Albert. Richard M.
Rindler entered an appearance.
2
Christopher J. White was on the brief for petitioner New
Jersey Division of Rate Counsel.
Colleen L. Boothby was on the brief for intervenor Ad Hoc
Telecommunications Users Committee in support of petitioner.
Joseph R. Palmore, Deputy General Counsel, Federal
Communications Commission, argued the cause for respondents.
With him on the brief were Samuel L. Feder, General Counsel,
Jacob M. Lewis, Associate General Counsel, John E. Ingle,
Deputy Associate General Counsel, and Nandan M. Joshi,
Attorney. Robert J. Wiggers, Alisa B. Klein, Isaac J. Lidsky,
Mark B. Stern, and Robert B. Nicholson, Attorneys, U.S.
Department of Justice, entered appearances.
Scott H. Angstreich argued the cause for intervenors
Verizon, et al. With him on the brief were James D. Ellis, Gary
L. Phillips, Robert B. McKenna, Michael K. Kellogg, Mark L.
Evans, Gregory G. Rapawy, Michael E. Glover, Edward H.
Shakin, and William H. Johnson.
Before: RANDOLPH and GARLAND, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
RANDOLPH, Circuit Judge: The Verizon telephone
companies filed a petition requesting the Federal
Communications Commission to refrain – to forbear – from
applying several regulatory requirements1 to its broadband
1
Verizon requested forbearance from Title II of the
Communications Act of 1934, 47 U.S.C. § 201 et seq., and the
Computer Inquiry rules. See In re Regulatory and Policy Problems
Presented by the Interdependence of Computer and Communication
Services and Facilities, 28 F.C.C.2d 267, 1971 WL 22948 (1971); In
3
services. Forbearance petitions are governed by 47 U.S.C.
§ 160. The Commission must forbear if it determines that a
petition meets the requirements of § 160(a). If the Commission
“does not deny the petition for failure to meet” the § 160(a)
requirements within a specified amount of time, the “petition
shall be deemed granted.” § 160(c). In Verizon’s case, the
Commissioners deadlocked with a 2-2 vote on a draft
memorandum opinion and order that would have granted the
petition in part and denied it in part.2 After failing to adopt any
order before the statutory deadline, the Commission issued a
press release announcing that Verizon’s petition “was deemed
granted by operation of law.” Individual statements of the
Commissioners were also released.
Several telecommunications carriers, a national trade
association representing communications companies, and the
New Jersey Division of Rate Counsel sought judicial review of
the Commission’s disposition of Verizon’s forbearance petition.
Petitioners’ main point is that the deadlocked vote on the draft
order had the effect of denying Verizon’s petition. In the
alternative, they contend that the “deemed” grant constitutes
agency action that should be vacated as arbitrary and capricious.
The Hobbs Act grants the courts of appeals exclusive
jurisdiction over “all final orders of the” Commission. 28
U.S.C. § 2342(1); see 47 U.S.C. § 402(a). And the
re Amendment of Section 64.702 of the Commission’s Rules and
Regulations (Second Computer Inquiry), 77 F.C.C.2d 384, 1980 WL
356789 (1980); In re Computer III Further Remand Proceedings: Bell
Operating Company Provision of Enhanced Services, 14 F.C.C. Rcd.
4289, 1999 WL 125819 (1999).
2
One of the five Commission seats was vacant at the time of
the vote. See 47 U.S.C. § 154(a).
4
Administrative Procedure Act renders final “agency action”
subject to judicial review.3 But in this case where is the
Commission “order,” and where is the “agency action”? The
Commission did not engage in any “circumscribed, discrete” act.
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62 (2004).
It did nothing, which is why the “deemed granted” provision
kicked in.
The deadlocked vote cannot be considered an order of the
Commission nor can it constitute agency action. The votes were
actions of the individual Commissioners, not the Commission.
Petitioners think the deadlock had the effect of denying the
forbearance petition. They point to the general rule that a tied
vote retains the status quo. Affirmed by an equally divided
court is a judicial example. See, e.g., Neil v. Biggers, 409 U.S.
188, 191–92 (1972). A similar rule applies in the legislature.
See, e.g., THOMAS JEFFERSON, A MANUAL OF PARLIAMENTARY
PRACTICE § 41, at 91 (Hogan & Thompson 1850) (“[I]f the
House be equally divided . . . the former law is not to be
changed but by a majority.”). These consequences follow from
the “almost universally accepted common-law rule” that only a
“majority of a collective body is empowered to act for the
body.” FTC v. Flotill Prods., Inc., 389 U.S. 179, 183 (1967).
The Commission, too, acts by majority vote. Ties therefore
do not result in Commission action. See, e.g., WIBC, Inc. v.
FCC, 259 F.2d 941, 943 (D.C. Cir. 1958). The Commission did
not grant Verizon’s petition and it did not deny it. In those
instances in which the Commission does not deny a forbearance
petition, Congress has spelled out the legal effect: the petition
3
“Agency action” encompasses any reviewable action that an
agency might take and “includes the whole or a part of an agency rule,
order, license, sanction, relief, or the equivalent or denial thereof, or
failure to act.” 5 U.S.C. § 551(13).
5
“shall be deemed granted.” 47 U.S.C. § 160(c). The grant does
not result in reviewable agency action. Congress, not the
Commission, “granted” Verizon’s forbearance petition. That
conclusion is compelled by AT&T Corp. v. FCC, in which we
addressed the expiration of regulatory safeguards for certain
long-distance telephone providers. See 369 F.3d 554, 555–56
(D.C. Cir. 2004). The statute in that case included a sunset
provision, which stated that the safeguards “shall cease to apply
. . . 3 years after the date such [provider] is authorized to
provide” long-distance services, “unless the Commission
extends such 3-year period by rule or order.” 47 U.S.C.
§ 272(f)(1). Three years after Verizon was authorized to
provide long-distance services, the Commission issued a public
notice announcing that the safeguards had ceased to apply
pursuant to § 272. AT&T, 369 F.3d at 558. AT&T petitioned
this court, arguing that the Commission had to explain its
decision to permit the sunset to occur. Id. at 559. We dismissed
the petition for review, holding that “AT&T incorrectly assumes
that the decision whether to sunset the § 272 safeguards lies with
the FCC. This is simply wrong. Congress made the decision to
extinguish the protections of § 272 by operation of law.” Id. at
560. The same is true here. Congress made the decision in
§ 160(c) to “grant” forbearance whenever the Commission “does
not deny” a carrier’s petition. When the Commission failed to
deny Verizon’s forbearance petition within the statutory period,
Congress’s decision – not the agency’s – took effect.
AT&T also made clear that the public notice announcing the
sunset was not reviewable agency action. See id. at 561–62.
The Commission’s press release here is analogous. Because the
Commission had taken no action (beyond the implicit decision
to treat the vote as a failure to deny the petition), the press
release was “purely informational . . . ; it imposed no obligations
and denied no relief.” Indep. Equip. Dealers Ass’n v. EPA, 372
F.3d 420, 427 (D.C. Cir. 2004). Nor are the Commissioners’
6
individual statements accompanying the press release
reviewable. Their statements are not institutional Commission
actions. See Ill. Citizens Comm. for Broad. v. FCC, 515 F.2d
397, 402 (D.C. Cir. 1975).
That the Commission took no action in this case is clearer
still in light of the implications of a contrary ruling. The
Administrative Procedure Act instructs courts to set aside
agency action “found to be arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). We therefore require more than a result; we need
the agency’s reasoning for that result. See Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971). Even
when we agree with an agency’s ultimate judgment, “[i]n
administrative law, we do not sustain a ‘right-result, wrong-
reason’ decision of an agency. We send the case back to the
agency so that it may fix its reasoning or change its result.”
People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d
17, 23 n.7 (D.C. Cir. 1999) (citing SEC v. Chenery Corp., 318
U.S. 80, 88 (1943)).
If we found reviewable action in this case, where would we
find the Commission’s reasoning? The Commission must
explain its decision only when it “grant[s] or den[ies] a petition
in whole or in part.” 47 U.S.C. § 160(c). Petitioners suggest
that judicial review of the “deemed granted” petition should turn
on the reasoning contained in the joint statement of the two
Commissioners who voted in favor of the draft order. But that
makes no sense. Their individual statements do not represent
the Commission’s views, and their position was not that
Verizon’s petition should be granted in full, which is what
“deemed granted” means. Compare Ill. Citizens Comm., 515
F.2d at 402.
7
Petitioners also argue that failing to review a “deemed
granted” forbearance petition will enable the Commission, by
simply not acting, to evade judicial review of any forbearance
petition the Commission wants to grant. But that is the
consequence of the system Congress mandated in § 160(c).
There is no indication that the Commission or individual
Commissioners have abused this provision or have acted in bad
faith. Absent such evidence, it is appropriate to assume that
their behavior is regular and proper. See FCC v. Schreiber, 381
U.S. 279, 296 (1965); United States v. Morgan, 313 U.S. 409,
421 (1941). The Commissioners are appointed by the President
with the advice and consent of the Senate. 47 U.S.C. § 154(a).
We presume those elected bodies select individuals of
“conscience and intellectual discipline” who will perform their
duties diligently. Morgan, 313 U.S. at 421.
We also recognize that because a deadlocked vote is
unreviewable, we lack jurisdiction in what may be the hardest
cases – cases in which the forbearance petition raises such
difficult issues that it produces an equally divided vote among
the Commissioners. Be that as it may, the statute is clear.
Section 160(c) directs that a petition is deemed granted if the
Commission “does not deny” it.
One final point needs to be mentioned. Petitioners argue
that the Commission must have decided, before issuing its press
release, that the deadlocked vote did not deny the forbearance
petition;4 otherwise, the petition could not have been “deemed
granted.” See Br. of Carrier Pet’rs 26; Reply Br. of Carrier
Pet’rs 4. A press release creating binding legal obligations may
sometimes provide reviewable agency action. See, e.g., Croplife
4
Each of the Commissioners’ statements recognizes that the
forbearance petition was “deemed granted” due to the Commission’s
inaction.
8
Am. v. EPA, 329 F.3d 876, 883 (D.C. Cir. 2003). But even if we
viewed the case this way, the result would be the same. We
agree that the deadlocked vote did not represent the
Commission’s denial of the forbearance petition and that in
§ 160(c) Congress directed the Commission to treat a petition it
does not deny as granted by operation of law.
For the foregoing reasons, the petitions for judicial review
are denied.
So ordered.