In Re Core Communications, Inc.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 5, 2008 Decided July 8, 2008

No. 07-1446

IN RE: CORE COMMUNICATIONS, INC.,
PETITIONER

On Petition for Writ of Mandamus
to the Federal Communications Commission

Michael B. Hazzard argued the cause for petitioner. With
him on the briefs was Joseph P. Bowser.

Joseph R. Palmore, Deputy General Counsel, argued the
cause for respondent. With him on the brief were Matthew B.
Berry, General Counsel, Richard K. Welch, Acting Deputy
Associate General Counsel, and Nandan M. Joshi, Counsel.

Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

Concurring opinion filed by Circuit Judge GRIFFITH.

GARLAND, Circuit Judge: The Federal Communications
Commission (FCC) has twice failed to articulate a valid legal
justification for its rules governing intercarrier compensation for
telecommunications traffic bound for Internet service providers
(ISPs). In March 2000, this court vacated and remanded the
 2

Commission’s first attempt at a justification. In May 2002, we
rejected its second attempt, in that case remanding without
vacating because we thought there was a “non-trivial likelihood”
the Commission would be able to state a valid legal basis for its
rule.

No such justification has been forthcoming. Core
Communications, Inc., which is injured by the FCC’s rules, has
filed a petition for a writ of mandamus, seeking an order
compelling the Commission to explain the legal authority upon
which the rules are based, on pain of vacatur if it fails to do so
within a fixed time. This is Core’s second petition seeking such
relief. We dismissed its first in 2005, “without prejudice to
refiling in the event of significant additional delay.” That delay
has now come to pass. It has been three years since we
dismissed Core’s first petition and six years since we remanded
the case to the FCC to do nothing more than state the legal
justification for its rules. At this point, the FCC’s delay in
responding to our remand is egregious.

We therefore grant the writ of mandamus sought by Core
and direct the FCC to explain the legal basis for its ISP-bound
compensation rules within six months of the date of the oral
argument in this case. There will be no extensions of that
deadline. The rules will be vacated on the day after the
deadline, unless the court is notified that the Commission has
complied with our direction.

I

Our opinion in In re Core Communications, Inc., 455 F.3d
267 (D.C. Cir. 2006), sets forth much of the background
necessary to understand how this case arrived at its current
juncture, and we therefore borrow liberally from that exposition.
As we explained in Core, before high-speed broadband
 3

connections (such as cable modem and digital subscriber line
(DSL) service) became widely available, consumers generally
gained access to the Internet through “dial-up” connections
provided by local telephone companies. Under the dial-up
method, a consumer uses a line provided by a local exchange
carrier (LEC) -- usually an incumbent local exchange carrier
(ILEC) -- to dial the local telephone number of an Internet
service provider (ISP), which then connects the call to the
Internet. Typically, the ISP does not subscribe to the ILEC, but
instead subscribes to another LEC -- a competitive local
exchange carrier (CLEC) -- that interconnects with the
incumbent. Accordingly, a consumer who dials up to the
Internet usually obligates an originating ILEC to transfer the call
to a CLEC, which then delivers the call to the ISP. Core is a
CLEC. See id. at 270.

How this call is paid for is at the center of Core’s dispute
with the FCC. Section 251(b)(5) of the Communications Act of
1934, as amended by the Telecommunications Act of 1996,
requires LECs to “establish reciprocal compensation
arrangements for the transport and termination of
telecommunications.” 47 U.S.C. § 251(b)(5). Under a
reciprocal compensation arrangement, “[w]hen a customer of
carrier A makes a local call to a customer of carrier B, and
carrier B uses its facilities to connect, or ‘terminate,’ that call to
its own customer, the ‘originating’ carrier A is ordinarily
required to compensate the ‘terminating’ carrier B for the use of
carrier B’s facilities.” SBC Inc. v. FCC, 414 F.3d 486, 490 (3d
Cir. 2005) (citing Global NAPs, Inc. v. FCC, 247 F.3d 252, 254
(D.C. Cir. 2001)); see In re Core, 455 F.3d at 270.

If ISP-bound traffic were governed by § 251(b)(5),
reciprocal compensation arrangements would be required for the
ILEC-to-CLEC hand-off just described, and ILECs would be
required to compensate CLECs -- like Core -- for completing
 4

their customers’ calls to ISPs. In 1996, however, the FCC
construed the “reciprocal compensation arrangements” provision
of § 251(b)(5) to “apply only to traffic that originates and
terminates within a local area.” Implementation of the Local
Competition Provisions in the Telecommunications Act of 1996,
11 FCC Rcd 15,499, 16,013, ¶ 1034, 1996 WL 452885 (1996).
And in its 1999 Declaratory Ruling, the Commission concluded
that dial-up calls to an ISP for connection to the Internet are
non-local, and thus that § 251(b)(5) is inapplicable. See
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, Inter-Carrier Compensation
for ISP-Bound Traffic, 14 FCC Rcd 3689, 1999 WL 98037
(1999) (“Declaratory Ruling”). Instead, the FCC concluded that
ISP-bound calls constitute interstate traffic, subject to FCC
jurisdiction under § 201 of the Act.1 See Implementation of the
Local Competition Provisions in the Telecommunications Act of
1996, Intercarrier Compensation for ISP-Bound Traffic, 16 FCC
Rcd 9151, 9152, ¶ 1, 2001 WL 455869 (2001) (“ISP Remand
Order”) (construing the Declaratory Ruling).

1
Section 201 provides, in relevant part:

(a) It shall be the duty of every common carrier engaged in
interstate . . . communication by wire or radio to furnish
such communication service upon reasonable request
therefor; and, in accordance with the orders of the
Commission, in cases where the Commission . . . finds such
action necessary or desirable in the public interest, to
establish . . . charges applicable thereto and the divisions of
such charges . . . .

(b) All charges . . . for and in connection with such
communication service, shall be just and reasonable . . . .

47 U.S.C. § 201.
 5

In March 2000, this court held that the Commission had
inadequately explained its determination that ISP-bound traffic
is non-local. See Bell Atl. Tel. Cos. v. FCC, 206 F.3d 1, 7-8
(D.C. Cir. 2000). The FCC, we said, had failed to “provide an
explanation why th[e] [end-to-end] inquiry is relevant to
discerning whether a call to an ISP should fit within the local
call model . . . or the long-distance model.” Id. at 5. We
vacated and remanded the Declaratory Ruling, directing the
FCC to justify its determination. Id. at 9.

In 2001, the FCC responded to our decision in Bell Atlantic
with the ISP Remand Order. Once again, the Commission
concluded that calls delivered to ISPs are not subject to the
reciprocal compensation obligations of § 251(b)(5). See ISP
Remand Order, 16 FCC Rcd at 9154, ¶ 3. But this time, rather
than base its conclusion on a determination that ISP-bound calls
are non-local and hence not subject to § 251(b)(5), the
Commission relied on a different statutory section, 47 U.S.C. §
251(g).2 See id. at 9153, ¶ 1. According to the FCC, § 251(g)

2
Section 251(g) provides, in relevant part:

On and after [the date of enactment of the
Telecommunications Act of 1996], each local exchange
carrier . . . shall provide exchange access, information
access, and exchange services for such access to
interexchange carriers and information service providers in
accordance with the same equal access and
nondiscriminatory interconnection restrictions and
obligations (including receipt of compensation) that apply
to such carrier on the date immediately preceding [the date
of enactment] under any . . . regulation, order, or policy of
the Commission, until such restrictions and obligations are
explicitly superseded by regulations prescribed by the
Commission after [the date of enactment].
 6

was intended to exclude the kinds of traffic enumerated in that
subsection, specifically “exchange access, information access,
and exchange services for such access,” from the reciprocal
compensation requirement of § 251(b)(5). Id. at 9166-67, ¶ 34
(quoting § 251(g)). And it found that calls made to ISPs located
within the caller’s local calling area fall within those enumerated
categories -- specifically, that they constitute “information
access.” Id. at 9171, ¶ 42. Those calls, the FCC concluded, are
thus not subject to § 251(b)(5), but are instead subject to the
FCC’s regulatory authority under § 201. See id. at 9152-53, ¶ 1;
id. at 9165, ¶ 30; id. at 9175-81, ¶¶ 52-65.

The FCC next sought “to establish an appropriate cost
recovery mechanism for delivery of this [ISP-bound] traffic.”
Id. at 9154, ¶ 4. The Commission concluded that “the existing
intercarrier compensation mechanism . . . , in which the
originating carrier pays the carrier that serves the ISP, has
created opportunities for regulatory arbitrage and distorted the
economic incentives related to competitive entry into the local
exchange and exchange access markets.” Id. at 9153, ¶ 2. And
it announced that it was issuing -- in tandem with its ISP
Remand Order -- a notice of proposed rulemaking to consider
whether the Commission should replace existing intercarrier
compensation schemes with a “bill-and-keep” regime. Id.; see
Notice of Proposed Rulemaking, Developing a Unified
Intercarrier Compensation Regime, 16 FCC Rcd 9610, 2001
WL 455872 (2001) (“NPRM”). Under such a regime, “neither
of two interconnecting networks charges the other for
terminating traffic that originates on the other network. Instead,
each network recovers [its costs] from its own end-users.” ISP
Remand Order, 16 FCC Rcd at 9153 n.6. Thus, in the typical
scenario discussed above, the originating ILEC would recover
its costs from the customer who initiated the call, while the

47 U.S.C. § 251(g).
 7

CLEC would recover its costs from the ISP customer to which
it delivered the call.

Although the FCC issued the NPRM looking toward a
bill-and-keep regime, the Commission nonetheless deemed it
“prudent” not to switch immediately “to a new compensation
regime that would upset the legitimate business expectations of
carriers and their customers.” Id. at 9186, ¶ 77. It therefore
adopted “an interim intercarrier compensation regime for
ISP-bound traffic that serves to limit, if not end, the opportunity
for regulatory arbitrage, while avoiding a market-disruptive
‘flash cut’ to a pure bill and keep regime.” Id. at 9186-87, ¶ 77.
The interim regime, the FCC said, “will govern intercarrier
compensation for ISP-bound traffic until we have resolved the
issues raised in the intercarrier compensation NPRM.” Id. at
9187, ¶ 77. According to the FCC, this would be “a three-year
interim intercarrier compensation mechanism for the exchange
of ISP-bound traffic.” Id. at 9199, ¶ 98 (emphasis added).

The FCC’s interim regime has four provisions particularly
relevant to Core. Of these, the most important are the “rate
caps,” which establish a gradually declining maximum rate that
a carrier (typically, a CLEC) can charge another carrier
(typically, an ILEC) for delivering a call to an ISP. Id. at 9187,
¶ 78. As an adjunct to the rate caps, the Commission also
established a “mirroring rule,” which provides that the rate caps
on ISP-bound traffic apply only if the ILEC also offers to charge
the CLEC the same capped rate to terminate local traffic that
originates on the CLEC’s network. Id. at 9193-94, ¶ 89. The
other two provisions are “growth caps,” which impose a limit on
the total number of ISP-bound minutes for which a carrier can
receive intercarrier compensation, and a “new markets rule,”
which denies intercarrier compensation for ISP-bound traffic in
markets where the carrier was “not exchanging traffic pursuant
to [an] interconnection agreement[] prior to adoption” of the
 8

Order. Id. at 9191, ¶ 86; id. at 9188-89, ¶ 81. See generally In
re Core, 455 F.3d at 273-74.

In WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir. 2002),
we reviewed the ISP Remand Order. Our opinion, issued on
May 3, 2002, rejected the FCC’s conclusion that § 251(g)
authorizes it to carve out ISP-bound calls from the requirement
of § 251(b)(5). See id. at 430. “Because that section is worded
simply as a transitional device,” we held, the FCC cannot rely
on § 251(g) to exclude ISP-bound calls from the scope of §
251(b)(5). Id. Section 251(g), we said “does not provide a basis
for the Commission’s action.” Id. at 434.

This time, however, we did not vacate the FCC’s order.
Nor did we “address petitioners’ attacks on various interim
provisions devised by the Commission.” Id. at 430. Instead,
because we thought that there might “well be other legal bases
for adopting the rules chosen by the Commission for
compensation between the originating and the terminating LECs
in calls to ISPs,” we merely remanded to the Commission for
further proceedings, thus leaving the interim rules in effect. Id.;
see id. at 434.

The Telecommunications Act of 1996 authorizes any
telecommunications carrier to petition the FCC to “forbear from
applying any regulation or any provision” of the Act. 47 U.S.C.
§ 160(a). On July 14, 2003, Core filed a petition asking the FCC
to forbear from applying the four interim provisions of the ISP
Remand Order. On October 8, 2004, the Commission granted
Core’s petition in part and denied it in part. The FCC granted
the request to forbear from enforcing the growth caps and new
markets rule, but denied Core’s petition with respect to the rate
caps and mirroring rule. Core then sought review in this court,
asking us to reverse the FCC’s partial denial of its petition for
 9

forbearance. We denied Core’s request and upheld the
Commission’s decision. In re Core, 455 F.3d at 270, 275-80.3

Meanwhile, the FCC still had not responded to the
WorldCom remand. In June 2004, after two years had passed
without a response, Core petitioned this court for a writ of
mandamus. In its August 2004 response, the FCC argued that
mandamus was premature because “Commission staff recently
completed and forwarded to the Chairman of the FCC a draft
order addressing the WorldCom remand.” Resp. of FCC to Pet.
for Writ of Mandamus at 1 (Aug. 19, 2004). It further argued
that the delay was “not as long as the egregious delays that
historically have been found to warrant mandamus relief.” Id.
at 11 (internal quotation marks omitted). “When this Court has
found the mandamus remedy to be appropriate,” the FCC stated,
“it generally has been confronted with delays of at least three
years.” Id.

Based on this response, we deferred consideration of the
mandamus petition and directed the FCC to advise us, at 90-day
intervals, “of its progress in responding to the remand in
WorldCom.” In re Core Commc’ns, Inc., No. 04-1179 (D.C.
Cir. Nov. 22, 2004). On March 4, 2005, FCC counsel reported
that the Commission had just released a “Further Notice of
Proposed Rulemaking [FNPRM] in the Intercarrier
Compensation docket in which it has been seeking, among other
things, to adopt permanent rules to succeed the interim
intercarrier compensation regime for Internet-bound traffic that
this Court reviewed in WorldCom, Inc. v. FCC.” Supp. Status
Report at 1 (Mar. 4, 2005). Based on the FCC’s representations
regarding the draft order and FNPRM, we denied Core’s

3
In the same opinion, we also denied a request by a group of
ILECs to reverse the FCC’s partial grant of Core’s forbearance
petition. In re Core, 455 F.3d at 270, 280-83.
 10

mandamus petition in May 2005, “without prejudice to refiling
in the event of significant additional delay.” In re Core
Commc’ns, Inc., No. 04-1179 (D.C. Cir. May 24, 2005).

A year later, in April 2006, there was no word from the
FCC on the fate of the draft WorldCom order and no release of
permanent rules in response to the FNPRM. Core then filed a
second forbearance petition with the Commission, again asking,
among other things, for the FCC to forbear from applying the
(remaining) interim rules that carve out ISP-bound traffic from
the obligation to pay reciprocal compensation. The Commission
rejected Core’s petition, Petition of Core Communications, Inc.
for Forbearance from Sections 251(g) and 254(g) of the
Communications Act and Implementing Rules, 22 FCC Rcd
14,118, 2007 WL 2159638 (2007),4 and Core has appealed that
decision. The case is currently on this circuit’s docket.

In October 2007, Core filed its second mandamus petition,
which is now before us. It asks that we compel the FCC to enter
an order, within 60 days, responding to our WorldCom remand
with an explanation of the legal basis for the rules that exclude
ISP-bound calls from the reciprocal compensation requirement
of § 251(b)(5). Core further requests that we vacate those rules
if the FCC does not issue such an order.

4
The FCC also disagreed with Core’s contention that forbearance
would return ISP-bound traffic to a reciprocal compensation regime,
stating that, if “the Commission were to forbear from the rate
regulation preserved by section 251(g), there would be no rate
regulation governing the exchange of traffic currently subject to the
access charge regime.” 22 FCC Rcd at 14,126, ¶ 14.
 11

II

Core seeks a writ of mandamus under the All Writs Act, 28
U.S.C. § 1651(a), to “compel agency action unlawfully withheld
or unreasonably delayed,” 5 U.S.C. § 706(1) (Administrative
Procedure Act). This court’s jurisdiction and authority to grant
that request are undisputed.5 Our consideration of any
mandamus petition “starts from the premise that issuance of the
writ is an extraordinary remedy, reserved only for the most
transparent violations of a clear duty to act.” In re Bluewater
Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000). There is, of
course, no doubt that the FCC has a “clear duty” to respond to
our WorldCom remand. “In the case of agency inaction,”
however, “we not only must satisfy ourselves that there indeed
exists such a duty, but that the agency has ‘unreasonably
delayed’ the contemplated action.” Id. (quoting 5 U.S.C. §
706(1)). The central question in evaluating “a claim of
unreasonable delay” is “whether the agency’s delay is so
egregious as to warrant mandamus.” Telecommunications
Research & Action Ctr. v. FCC (“TRAC”), 750 F.2d 70, 79
(D.C. Cir. 1984). We consider that question below.

5
See Telecommunications Research & Action Ctr. v. FCC
(“TRAC”), 750 F.2d 70, 75 (D.C. Cir. 1984) (“[T]he statutory
commitment of review of FCC action to the Court of Appeals, read in
conjunction with the All Writs Act, affords this court jurisdiction over
claims of unreasonable Commission delay.” (citation omitted)); id. at
79 (“Congress has instructed statutory review courts to compel agency
action that has been unreasonably delayed. 5 U.S.C. § 706(1).”); see
also In re American Rivers & Idaho Rivers United, 372 F.3d 413, 414
(D.C. Cir. 2004); In re Bluewater Network, 234 F.3d 1305, 1315 (D.C.
Cir. 2000); In re United Mine Workers of Am. Int’l Union, 190 F.3d
545, 549 (D.C. Cir. 1999). See generally 28 U.S.C. § 1651(a) (“The
Supreme Court and all courts established by Act of Congress may
issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.”).
 12

A

“There is no per se rule as to how long is too long to wait
for agency action.” In re American Rivers & Idaho Rivers
United, 372 F.3d 413, 419 (D.C. Cir. 2004). In TRAC, we
outlined six factors relevant to the analysis. We cautioned that
those factors are not “ironclad,” but rather are intended to
provide “useful guidance in assessing claims of agency delay.”
TRAC, 750 F.2d at 80. The first and most important factor is
that “the time agencies take to make decisions must be governed
by a ‘rule of reason.’” Id. The remaining five are:

(2) where Congress has provided a timetable or other
indication of the speed with which it expects the
agency to proceed in the enabling statute, that statutory
scheme may supply content for this rule of reason; (3)
delays that might be reasonable in the sphere of
economic regulation are less tolerable when human
health and welfare are at stake; (4) the court should
consider the effect of expediting delayed action on
agency activities of a higher or competing priority; (5)
the court should also take into account the nature and
extent of the interests prejudiced by delay; and (6) the
court need not “find any impropriety lurking behind
agency lassitude in order to hold that agency action is
‘unreasonably delayed.’”

In re United Mine Workers of Am. Int’l Union, 190 F.3d 545,
549 (D.C. Cir. 1999) (quoting TRAC, 750 F.2d at 80).

Both Core and the FCC dutifully address the six TRAC
factors individually, each party drawing different conclusions.
See Pet’r Br. 19-27; FCC Br. 13-23. But while those factors are
not unimportant here, we must begin by noting that the
procedural posture of this case is different from that of most of
 13

this circuit’s unreasonable delay cases. TRAC, and all of the
cases cited by the parties that employ its methodology, involved
delay by agencies in concluding their own rulemakings or in
responding to requests by private parties to take administrative
action.6 The problem that confronts us here is different. In this
case, we are faced with the agency’s failure -- for six years -- to
respond to our own remand. In so doing, the agency has
effectively nullified our determination that its interim rules are
invalid, because our remand without vacatur left those rules in
place. Moreover, until the FCC states its explanation for its
interim rules in a final order, Core cannot mount a challenge to
those rules. In this way, the FCC insulates its nullification of
our decision from further review. But a federal court has
authority to issue a writ of mandamus to “prevent the frustration
of orders previously issued.” Potomac Elec. Power Co. v. ICC
(“PEPCO”), 702 F.2d 1026, 1032 (D.C. Cir. 1983). And
“[b]ecause the statutory obligation of a Court of Appeals to
review on the merits may be defeated by an agency that fails to
resolve disputes, a Circuit Court may resolve claims of
unreasonable delay in order to protect its future jurisdiction.”
TRAC, 750 F.2d at 76; see American Rivers, 372 F.3d at 419
(“[T]he primary purpose of the writ in circumstances like these
is to ensure that an agency does not thwart [the court’s]
jurisdiction by withholding a reviewable decision.”).

Two precedents are most relevant to our disposition of this
case. The first is PEPCO, 702 F.2d 1026, a pre-TRAC case in
which we held that the ICC had unreasonably delayed the

6
See, e.g., American Rivers, 372 F.3d 413; Mashpee Wampanoag
Tribal Council, Inc. v. Norton, 336 F.3d 1094 (D.C. Cir. 2003); United
Mine Workers, 190 F.3d 545; Action on Smoking & Health v.
Department of Labor, 100 F.3d 991 (D.C. Cir. 1996); In re Barr
Labs., 930 F.2d 72 (D.C. Cir. 1991); In re Monroe Commc’ns Corp.,
840 F.2d 942 (D.C. Cir. 1988).
 14

disposition of PEPCO’s challenge to the lawfulness of railroad
freight charges. Five years earlier we had remanded PEPCO’s
challenge to the Commission for further consideration, in
response to which the Commission reopened the proceedings,
then began an entirely new hearing, and then reopened the
proceedings again. Id. at 1029-30. Relying on “our inherent
power to construe the mandate of our earlier decision,” we
reviewed the “question whether PEPCO’s right to a timely
decision from the Commission ha[d] been violated.” Id. at
1032. We concluded that it had. Noting that “[a]gain and again
the Commission has promised to expedite this matter, but
without delivering,” we ordered the Commission to reach a final
decision on PEPCO’s challenge within 60 days. Id. at 1035.

The second precedent is Radio-Television News Directors
Ass’n v. FCC, 229 F.3d 269 (D.C. Cir. 2000), a case that cites
TRAC but does not address its six factors individually. See id.
at 272. Radio-Television began as a challenge to the FCC’s
personal attack and political editorial rules, which had been the
subject of a petition to rescind since 1980. In 1997, the
Commission decided (by an equally divided vote) not to repeal
the rules, but it offered no affirmative justification for that
decision. On appeal in 1999, we held that, “[w]ithout a clear
explanation for the rules, the court is not in a position to review
whether they continue to serve the public interest.” Radio-
Television News Dirs. Ass’n v. FCC, 184 F.3d 872, 875 (D.C.
Cir. 1999). “Accordingly, rather than enjoining enforcement of
existing rules that the FCC might be able to justify,” we
“remand[ed] the case for the FCC to further explain its decision
not to repeal or modify them.” Id. That, we said, would put the
court “in a position to test the FCC’s rationale” should “a further
challenge be made to the FCC’s decision on remand.” Id.

Nine months later, the FCC had taken no action, and the
petitioners filed a petition for mandamus. The FCC responded
 15

by issuing an order temporarily suspending the rules for 60 days.
That order, we held, was “not responsive to the court’s remand.”
Radio-Television, 229 F.3d at 271. It did not provide a
justification for the rules, and “simply ha[d] the effect of further
postponing a final decision by the Commission.” Id. Noting
that “[t]he court has afforded repeated opportunities for the
Commission to take final action,” and that “[d]espite its filings
suggesting to the court that something would happen, the
Commission, once again, has done nothing to cure the
deficiencies of which it has been long aware,” we issued “a writ
of mandamus directing the Commission immediately to repeal
the personal attack and political editorial rules.” Id. at 272.

The similarities between PEPCO and Radio-Television on
the one hand, and this case on the other, are clear. It is now
seven years since the FCC put in place the interim rules that it
said would last only three. It is now six years since we held, for
the second time, that the FCC’s legal justification for the rules
was invalid and remanded for the agency to provide a valid
justification. During all this time, the FCC has proceeded -- as
it did in PEPCO and Radio-Television -- to enforce rules for
which it has articulated no lawful basis. In PEPCO, we issued
the writ when the ICC failed to respond to our remand within
five years. In Radio-Television, we did so when the FCC failed
to respond within just nine months.7

7
Although our remand in Radio-Television had expressly stated
that “the FCC need act expeditiously,” 184 F.3d at 889, timeliness is
implicit in every remand by this court, see PEPCO, 702 F.2d at 1034
(“[O]ur remand in the earlier appeal to this court implicitly included
the understanding that the Commission would respond to our mandate
in a timely manner.”); cf. 47 U.S.C. § 402(h) (providing that, on
remand from this court, “it shall be the duty of the Commission . . . to
forthwith give effect” to the judgment of the court (emphasis added)).
 16

As noted above, the first TRAC factor is that “the time
agencies take to make decisions must be governed by a ‘rule of
reason.’” TRAC, 750 F.2d at 80. PEPCO and Radio-Television
make clear that the FCC’s delay in responding to our WorldCom
remand is anything but reasonable, and that factor is decisive
here. Indeed, we have several times found similar delays
unreasonable even when the requests for action came from
private parties. For example, in MCI Telecommunications Corp.
v. FCC, 627 F.2d 322 (D.C. Cir. 1980), from which TRAC
derived its “rule of reason” standard, we found the FCC’s four-
year delay in determining a just and reasonable tariff to be
unreasonable. Id. at 325. And in American Rivers, we found
that FERC’s delay of six years in responding to a petition was
“nothing less than egregious.” 372 F.3d at 419.8

In the words of the fifth TRAC factor, it is also clear that
Core has been “prejudiced by delay.” TRAC, 750 F.2d at 80.
For seven years -- since the ISP Remand Order established the
interim rules -- Core has been subject to rate caps that it
estimates “result in rates 300-400% lower than other § 251(b)(5)
intercarrier compensation rates.” Pet’r Br. 14. It has been
subject to those caps notwithstanding that this court has found
invalid the only statutory basis the FCC has articulated to
support them. The FCC’s brief suggests that Core’s concerns
have less urgency because “[i]ncreasingly, end users are not
using dial-up connections to connect to the Internet, but, rather,
cable modem, DSL, and other broadband platforms.” FCC Br.
17 (emphasis omitted). Perhaps this makes Core’s concerns less
urgent to the FCC, but it makes them no less urgent to Core. As
discussed in Part II.B below, Core is seeking relief not only for

8
See also Air Line Pilots Ass’n, Int’l v. Civil Aeronautics Bd., 750
F.2d 81, 86 (D.C. Cir. 1984) (finding a five-year delay unreasonable);
Public Citizen Health Research Group v. Auchter, 702 F.2d 1150,
1157-59 (D.C. Cir. 1983) (finding a three-year delay unreasonable).
 17

the future, but for the period since 2001, when dial-up access to
the Internet was not yet as outmoded as the slide rule.

The FCC urges us to stay our hand until the conclusion of
its ongoing rulemaking proceeding “in which it is considering
comprehensive, industry-wide reforms to the system of
intercarrier compensation.” FCC Br. 1. “[T]his broad
rulemaking,” we are told, “will, among other things, address the
issues raised by this Court’s remand in WorldCom, Inc. v.
FCC.” Id. Indeed, counsel suggests that the Commission is on
the brink of concluding its rulemaking and responding to our
remand. We have heard this refrain before.

Seven years ago, in April 2001, the Commission issued an
NPRM that announced its intention to promulgate a
comprehensive regime to supersede what it said would be only
a “three-year” interim regime under the ISP Remand Order.
See NPRM, 16 FCC Rcd 9610. In August 2004, in response to
Core’s first mandamus petition, the FCC advised us that
“Commission staff recently completed and forwarded to the
Chairman of the FCC a draft order addressing the WorldCom
remand.” Resp. of FCC to Pet. for Writ of Mandamus at 1 (Aug.
19, 2004). In light of this advice, we deferred consideration of
the petition and ordered status reports. In its March 2005 status
report, the FCC further advised that it had just issued a “Further
Notice of Proposed Rulemaking in the Intercarrier
Compensation docket in which it has been seeking, among other
things, to adopt permanent rules to succeed the interim
intercarrier compensation regime for Internet-bound traffic that
this Court reviewed in WorldCom, Inc. v. FCC.” Supp. Status
Report at 1 (Mar. 4, 2005). On further inspection, it appears that
the FNPRM in question contained only a single, footnote
reference to the WorldCom order: “In this proceeding, the
Commission hopes to address the compensation regime for all
types of traffic, including ISP-bound traffic.” Further Notice of
 18

Proposed Rulemaking, Developing a Unified Intercarrier
Compensation Regime, 20 FCC Rcd 4685, 4694 n.48, 2005 WL
495087 (2005) (emphasis added). Nonetheless, on that hope we
denied the petition, “without prejudice to refiling in the event of
significant additional delay.” In re Core, No. 04-1179 (May 24,
2005).

More than three years later, when “significant additional
delay” had indeed transpired, Core filed the instant petition.
Then, one business day before we heard oral argument in this
case, FCC counsel informed us that the Commission had issued
an order adopting an interim cap on the support that certain
telecommunications carriers can receive from the Universal
Service Fund. Quoting a press release from the FCC’s Wireline
Competition Bureau calling the order “‘a crucial first step’
toward ‘comprehensive reform’ not only of Universal Service
but also of intercarrier compensation,” counsel stated: “Now
that the Commission has capped payments from the fund, the
Commission can ‘move forward expeditiously on
comprehensive reform’ of intercarrier compensation.” FCC
Rule 28(j) Letter, May 2, 2008 (quoting Press Release, FCC,
Interim Cap Clears Path for Comprehensive Reform (May 2,
2008)). But the Commission order that the press release touts
does not mention comprehensive reform of intercarrier
compensation, let alone the specific problem of ISP-bound
traffic. Rather, it refers only to “comprehensive reform of high-
cost universal service support.” High-Cost Universal Service
Support, 45 Commc’ns Reg. (P & F) 1, 3, ¶ 4, 2008 WL
1930572 (2008). And in any event, it is now far too late for the
Commission to be taking a “first step,” even if it is a “crucial”
one.

On the day of oral argument, the FCC made yet another
last-minute declaration of imminent action. Counsel informed
the court -- for the first time -- that the Chairman of the FCC had
 19

authorized him to represent that “the Chairman fully intends to
do everything he can to respond to the WorldCom remand within
six months.” Oral Arg. Recording at 22:18-23:03. The
Chairman will attempt, counsel advised, to “achieve broad-
based comprehensive intercarrier compensation reform within
six months,” and “WorldCom would be part of that.” Id. While
this representation is welcome, the Chairman’s doing
“everything he can” may not suffice, as he may not be able to
enforce his will on his fellow Commissioners. In any event, the
representation is not enforceable unless backed up by issuance
of the writ. At some point, promises are no longer enough, and
we must end the game of “administrative keep-away.”
American Rivers, 372 F.3d at 420.

In granting the writ of mandamus, we do not second-guess
the FCC’s policy judgment to pursue a comprehensive solution
to the problem of intercarrier compensation. See Action on
Smoking & Health v. Department of Labor, 100 F.3d 991, 994
(D.C. Cir. 1996). But as we said in MCI, in response to a
similar plea by the FCC to allow it to continue in effect rates
that had been found unsupported pending the issuance of
“comprehensive procedures”: “[T]here must be some limit to
the time tariffs unjustified under the law can remain in effect .
. . . Otherwise, the regulatory scheme Congress has crafted
becomes anarchic . . . .” 627 F.2d at 325. We are also, as
always, “acutely aware of the limits of our institutional
competence in [a] highly technical area,” Grand Canyon Air
Tour Coal. v. FAA, 154 F.3d 455, 476 (D.C. Cir. 1998), and
loath to “interfere with the agency’s internal processes,” United
Mine Workers, 190 F.3d at 553. But what Core asks us to do is
neither technical nor intrusive. Core does not ask the FCC to
promulgate any particular rule or policy; it asks only that the
Commission state the legal authority for the current rule that
refuses Core the right to reciprocal compensation. Either the
FCC has such authority or it does not. If the FCC believes it has
 20

authority, it should not take six years to put its rationale in
writing. Even if the Commission ultimately decides to include
ISP-bound traffic in a more comprehensive scheme, it still must
have statutory authority to do so. See, e.g., FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 161 (2000) (“[A]n
administrative agency’s power to regulate . . . must always be
grounded in a valid grant of authority from Congress.”). Stating
that rationale now should not impede the FCC’s broader
rulemaking project.

B

The FCC urges us, in the event we do not reject Core’s
mandamus request outright, to defer a final resolution until this
circuit rules on Core’s appeal of the FCC’s denial of its second
forbearance petition. In that petition, Core asked the FCC to
forbear from applying the interim rules that cap its
compensation. On appeal, Core intends to argue not only that its
forbearance petition should have been granted, but that it was
“deemed granted” by operation of law because the FCC did not
deny the petition until after the statutory deadline had passed.
See 47 U.S.C. § 160(c) (providing that any forbearance petition
“shall be deemed granted if the Commission does not deny” it
within the specified time period). Core further intends to argue
that, as a consequence, compensation for ISP-bound traffic is no
longer governed by the interim intercarrier compensation rules,
but is instead governed by § 251(b)(5)’s reciprocal
compensation regime.

Although the Commission believes Core’s position lacks
merit and intends to oppose its appeal of the denial of
forbearance, FCC counsel argues that we should defer
consideration of mandamus until that appeal is decided. If Core
were to prevail in its forbearance appeal, counsel argues, the
Commission could no longer apply the interim compensation
 21

rules and Core’s problem would be solved. Because mandamus
is an extraordinary remedy, available only if a party has “no
other adequate means to attain the relief [it] desires,” Allied
Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980), the FCC
contends that we should not consider issuing the writ unless and
until the alternative of a forbearance appeal is foreclosed.

But Core’s appeal of the denial of forbearance is not an
adequate means to attain the relief it seeks. As Core explains,
forbearance offers only prospective relief: forbearance by the
Commission “from applying” the interim rules in the future. 47
U.S.C. § 160(a). Core, however, seeks retroactive relief as well.
In the late 1990s -- prior to the FCC’s carve-out of ISP-bound
traffic -- Core entered into contracts with various ILECs that
provided reciprocal compensation for the ISP-bound traffic that
Core terminated. The ISP Remand Order capped Core’s
compensation at lower levels.

Core maintains that only the grant of a writ of mandamus
will make it whole by making retroactive relief available. If we
compel the FCC to state its legal justification for the interim
rules, and if that justification is not forthcoming or is invalid, we
will vacate those rules. Core argues that this will mean there
never was any lawful justification for the caps on its
compensation: i.e., that “the FCC has enforced an ultra vires
compensation regime since 2001.” Pet’r Reply Br. 2. And that
result, Core contends, will entitle it to retroactive compensation
under its pre-existing contracts with the ILECs. FCC counsel
does not deny this contention, saying only that it is a “very
complex question . . . which I can’t really speak to.” Oral Arg.
Recording at 20:33. We thus cannot conclude that Core’s
appeal of the FCC’s denial of forbearance offers an adequate
alternative means of attaining the relief Core desires.
 22

We also note that the resolution of an appeal from the
FCC’s denial of forbearance regarding the interim compensation
rules will not vindicate this court’s own interest in seeing that its
mandate is honored. That mandate was to explain the legal basis
for those rules so that their validity could ultimately be
evaluated. An appeal from the denial of forbearance, by
contrast, looks at the reasonableness of the FCC’s determination
of three quite different issues.9 The additional point Core
intends to raise, that its petition must be “deemed granted”
pursuant to 47 U.S.C. § 160(c), is likewise unrelated to the
FCC’s legal authority for its interim intercarrier compensation
scheme.

C

There remains only the question of the content of the writ
that we will issue. Core asks us to direct the FCC to promulgate

9
The Telecommunications Act requires the FCC to “forbear from
applying any regulation or any provision [of the Act] . . . to a
telecommunications carrier or telecommunications service” if it
determines that:

(1) enforcement of such regulation or provision is not
necessary to ensure that the . . . regulations . . . in
connection with that telecommunications carrier or
telecommunications service are just and reasonable and are
not unjustly or unreasonably discriminatory;

(2) enforcement of such regulation or provision is not
necessary for the protection of consumers; and

(3) forbearance from applying such provision or regulation
is consistent with the public interest.

47 U.S.C. § 160(a); see In re Core, 455 F.3d at 277.
 23

an order that explains the statutory authority for its interim rules,
and to vacate those rules if the FCC does not issue such an order
within 60 days. Although Core urges us to impose a 60-day
deadline, it is clear that obtaining a fixed deadline is Core’s
foremost concern. Oral Arg. Recording at 28:56-29:35.

As we noted above, in an effort to stave off Core’s request,
FCC counsel represented that the Commission’s Chairman
intends to achieve comprehensive intercarrier compensation
reform within six months. Such reform, counsel advised, would
include a response to our WorldCom remand. We will give the
Chairman a chance to meet that schedule, and will direct the
Commission to issue its explanation by November 5, 2008 -- six
months from the day that representation was made.

We agree with Core, however, that this must be the end of
the Commission’s delay. The first time we determined that the
rationale for the rules was invalid, in Bell Atlantic, we vacated
as well as remanded. 206 F.3d at 9. In less than a year, the FCC
issued a new order with a new rationale. When we concluded in
WorldCom that the FCC’s second rationale was also invalid, we
plainly had authority to vacate again. See 5 U.S.C. § 706
(stating that a reviewing court shall “set aside” agency action
found to be “in excess of statutory jurisdiction, authority, or
limitations, or short of statutory right”); see also Allied-Signal,
Inc. v. U.S. Nuclear Regulatory Comm’n, 988 F.2d 146, 150-51
(D.C. Cir. 1993). Instead, we chose only to remand, believing
that there was a “non-trivial likelihood” that the Commission
would be able to state a valid legal basis for its rules.
WorldCom, 288 F.3d at 434; see Allied-Signal, 988 F.2d at 151
(noting that, when there is a “serious possibility that the
Commission will be able to substantiate its decision on remand,”
we may remand without vacating). This time, there was no
prompt response -- only six years of promises and further delay.
 24

Having repeatedly, and mistakenly, put our faith in the
Commission, we will not do so again. If the FCC cannot, within
six months, explain its legal authority for the interim rules, we
can only presume that this is because there is in fact no such
authority. Under those conditions, vacatur is indicated. See
Allied-Signal, 988 F.2d at 150-51. Accordingly, the rules will
be vacated on November 6, 2008, unless the court is notified
that the Commission has complied with our direction before that
date.

III

For the foregoing reasons, we grant the writ of mandamus
and direct the FCC to respond to our 2002 WorldCom remand by
November 5, 2008. That response must be in the form of a final,
appealable order that explains the legal authority for the
Commission’s interim intercarrier compensation rules that
exclude ISP-bound traffic from the reciprocal compensation
requirement of § 251(b)(5). No extensions of this deadline will
be granted. The rules are hereby vacated on November 6, 2008,
unless the court is notified that the Commission has complied
with our direction before that date. This panel of the court will
retain jurisdiction over the case to ensure compliance with our
decision. See MCI, 627 F.2d at 325.

So ordered.
 GRIFFITH, Circuit Judge, concurring: I join the court’s
well-reasoned opinion. The circumstances that occasion
today’s decision lead me to question the wisdom of the open-
ended remand without vacatur. In WorldCom, Inc. v. FCC, we
opted for such a remedy after concluding that the Federal
Communications Commission (“FCC”) had issued an order
without establishing statutory authorization. 288 F.3d 429,
434 (D.C. Cir. 2002). The FCC ignored our request for a
better explanation of its statutory authority, and six years later
we are forced to clean up a mess we helped create. There is a
lesson here.

Remand without vacatur is common in this circuit,
especially after our decision in Allied-Signal, Inc. v. U.S.
Nuclear Regulatory Commission, 988 F.2d 146, 150–51 (D.C.
Cir. 1993). But experience suggests that this remedy
sometimes invites agency indifference. See Natural Res. Def.
Council v. EPA, 489 F.3d 1250, 1262–64 (D.C. Cir. 2007)
(Randolph, J., concurring) (“A remand-only disposition is, in
effect, an indefinite stay of the effectiveness of the court’s
decision and agencies naturally treat it as such.”); Kristina
Daugirdas, Note, Evaluating Remand Without Vacatur: A
New Judicial Remedy for Defective Agency Rulemakings, 80
N.Y.U. L. REV. 278, 301–05 (2005) (describing instances of
multi-year delay). Today’s decision is a case in point. After
waiting in vain for the FCC to respond to WorldCom of its
own volition, we are forced to resort to the “extraordinary
remedy” of mandamus to compel the agency to act. In re
Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000). I
join in today’s decision to break out the big stick, but I hope
that in the future we will take greater care to avoid putting
ourselves in situations where doing so is necessary.

In writing separately, I do not address the disputed
legality of remand without vacatur under the Administrative
Procedure Act, 5 U.S.C. § 706(2)(A). Compare Checkosky v.
SEC, 23 F.3d 452, 462–66 (D.C. Cir. 1994) (separate opinion
 2
of Silberman, J.) (declaring the practice lawful), and Sugar
Cane Growers Co-op v. Veneman, 289 F.3d 89, 98 (D.C. Cir.
2002) (same), with Checkosky, 23 F.3d at 490–93 (separate
opinion of Randolph, J.) (declaring the practice unlawful),
and Milk Train, Inc. v. Veneman, 310 F.3d 747, 758 (D.C.
Cir. 2002) (Sentelle, J., dissenting) (same). I simply urge
future panels to consider the alternatives to the open-ended
remand without vacatur. See, e.g., A.L. Pharma, Inc. v.
Shalala, 62 F.3d 1484, 1492 (D.C. Cir. 1995) (remanding
without vacatur but ordering a rule “vacated automatically”
absent adequate justification from the agency within 90 days);
Rodway v. USDA, 514 F.2d 809, 817–18 (D.C. Cir. 1975)
(remanding without vacatur but ordering “complet[ion of] the
new rule-making process within 120 days of the issuance of
this opinion”); Cement Kiln Recycling Coal. v. EPA, 255 F.3d
855, 872 (D.C. Cir. 2001) (per curiam) (vacating regulations
but inviting “a motion to delay issuance of the mandate”);
Honeywell Int’l, Inc. v. EPA, 374 F.3d 1363, 1374–75 (D.C.
Cir. 2004) (Randolph, J., concurring) (“It is easy to forget that
when we vacate and remand, as we are doing here, there will
be a safety valve. The agency, and any intervenors on its side,
will have the opportunity to file post-decision motions
demonstrating why an unlawful order or rule should remain in
place during proceedings on remand.”) (citing U.S. Tel. Ass’n
v. FCC, 188 F.3d 521, 531 (D.C. Cir. 1999)).