People v. Federal Communications Commission

Related Cases

Opinion Per Curiam.

Dissenting Opinion filed by SPOTTSWOOD W. ROBINSON, III, Circuit Judge.

PER CURIAM:

The only substantial issue raised on appeal is whether the Commission possesses statutory authority to regulate the facilities in question. As the Commission recognized, the Communications Act grants the Commission broad powers over interstate communications, 47 U.S.C. § 151, but specifically reserves for the states authority to regulate intrastate communications, 47 U.S.C. §§ 152(b), 221(b). The jurisdictional conflict in this case arose because the Foreign Exchange (FX) and Common Control Switching Arrangement (CCSA) facilities in question can be used for both inter- and intra-state communications.

Even though these facilities are located entirely within single states, we conclude that the Commission did not exceed its authority. At the outset, the Commission properly recognized that it may regulate facilities used in both inter- and intrastate communications to the extent it proves “technically and practically difficult” to separate the two types of communications. 56 F.C.C.2d 14, 19, 20 (1975), citing U. S. Dept. of Defense v. General Telephone Co., 38 F.C.C.2d 803, aff’d sub nom. St. Joseph Telephone & Telegraph Co. v. F. C. C., 164 U.S.App.D.C. 369, 505 F.2d 476 (1974); AT&T-TWX, 38 F.C.C. 1127, 1133 (1965); and Telerent Leasing Corp., 45 F.C. C.2d 204 (1974), aff’d sub nom. North Carolina Utilities v. F. C. C., 537 F.2d 787 (4 Cir. 1976). We agree with the Commission that the opposite conclusion would leave a substantial portion of the interstate communication service unregulated . . .”56 F.C.C.2d at 20, and that inconsistent state regulations could frustrate the congressional goal of developing a “unified national communications service.” 56 F.C.C.2d at 20.

The Commission next observed that “the physical location of the facilities is not determinative of whether they are interstate or intra-state for regulatory purposes.” Id. The Commission supported this proposition with substantial case authority. See cases cited at id. Thus it was logical for the Commission to conclude that “[t]he key issue ... is the nature of the communications which pass through the facilities, not the physical location of the lines.” Id. at 21. United States v. Southwestern Cable Co., 392 U.S. 157, 168-9, 88 S.Ct. 1994, 20 L.Ed.2d 1001 (1968). Nothing presented to us casts doubt on the Commission’s conclusion that the “facilities are an integral part of a dedicated interstate communications network.” Id. Consequently, Commission jurisdiction was present.

In addition, we note that the Commission refused to assert jurisdiction over those purely local services that could be practicably separated from inter-state services supplied through the same facilities. The Commission refused to assert authority over local exchange service, leaving any regulation over such service to the appropriate state bodies. It was suggested that the Commission also attempted to separate inter-state FX service from intra-state FX service and assert jurisdiction only over the former. The Commission reasonably concluded that this suggestion was impractical. As the Commission noted, “requiring the customer to maintain two redundant facilities or to invest in expensive additional equipment” would frustrate the Commission’s responsibility “to make available, so far as possible to all the people of the United States, a rapid, efficient, Nationwide and world-wide wire and radio communications service with adequate facilities at reasonable charges.” Id. at 19, quoting 47 U.S.C. § 151.

*220Quite recently, the Fourth Circuit had occasion to evaluate many of the arguments raised here. In finding that the Commission’s assertion of jurisdiction was proper in that case, the court succinctly articulated the principles that govern this case as well:

We have no doubt that the provisions of section 2(b) deprive the Commission of regulatory power over local services, facilities and disputes that in their nature and effect are separable from and do not substantially affect the conduct or development of interstate communications. But beyond that, we are not persuaded that section 2(b) sanctions any state regulation, formally restrictive only of intrastate communication, that in effect encroaches substantially upon the Commission’s authority under sections 201 through 205. In this view of the interrelation of the provisions of the Act, the Commission’s declaratory statement of its authority over the interconnection of terminal equipment with the national telephone network is a proper and reasonable assertion of jurisdiction conferred by the act.

North Carolina Util. Comm’n v. F. C. C., 537 F.2d 787, 793-4 (1976), cert. denied, 429 U.S. 1027, 97 S.Ct. 651, 50 L.Ed.2d 631 (1976).

Consequently, the order of the Federal Communications Commission is

Affirmed.