Global Crossing Telecommunications, Inc. v. Federal Communications Commission

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 15, 2001 Decided August 21, 2001

No. 00-1204

Global Crossing Telecommunications, Inc.,
Petitioner

v.

Federal Communications Commission and
United States of America,
Respondents

Bell Atlantic-Delaware, Inc., et al.,
Intervenors

On Petition for Review of an Order of the
Federal Communications Commission

Michael J. Shortley, III argued the cause for petitioner.
With him on the briefs were Danny E. Adams and Steven A.
Augustino.

 Rodger D. Citron, Counsel, Federal Communications Com-
mission, argued the cause for respondent. On the brief were
Christopher J. Wright, General Counsel, John E. Ingle, Dep-
uty Associate General Counsel, Laurel R. Bergold, Counsel,
A. Douglas Melamed, Acting Assistant Attorney General,
U.S. Department of Justice, and Catherine G. O'Sullivan and
Andrea Limmer, Attorneys.

Michael E. Glover, Edward Shakin, Gilbert E. Geldon and
John M. Goodman were on the brief for intervenors Verizon
Telephone Companies.

Before: Sentelle, Tatel, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

Garland, Circuit Judge: Global Crossing Telecommunica-
tions, Inc. petitions for review of an order of the Federal
Communications Commission (FCC), requiring Global Cross-
ing to pay Verizon Telephone Companies compensation for
payphone calls originating from Verizon payphones and rout-
ed over Global Crossing's network.1 Finding the FCC's
decision consistent with the statutory scheme and neither
arbitrary nor capricious, we deny the petition for review.

I

In s 276 of the Telecommunications Act of 1996,2 Congress
directed the FCC to:

prescribe regulations that--

(A) establish a per call compensation plan to ensure
that all payphone service providers are fairly compen-
sated for each and every completed intrastate and
interstate call using their payphone ...; [and]

__________
1 At the time of the proceedings below, Global Crossing was
known as Frontier Communications Services, Inc., and Verizon was
known as Bell Atlantic.

2 Pub. L. No. 104-104, 110 Stat. 56 (1996) (codified in scattered
sections of 47 U.S.C.).

(B) discontinue ... all intrastate and interstate pay-
phone subsidies from basic exchange and exchange
access revenues, in favor of a compensation plan as
specified in subparagraph (A).

47 U.S.C. s 276(b)(1)(A), (B).3 Pursuant to Congress' di-
rection, the FCC issued orders in 1996 that implemented the
provisions of s 276, including paragraphs (A) and (B). See
Report and Order, Implementation of the Pay Telephone
Reclassification and Compensation Provisions of the Tele-
communications Act of 1996, 11 FCC Rcd 20,541 (1996);
Order on Reconsideration, 11 FCC Rcd 21,233 (1996), aff'd in
part and remanded in part sub nom. Illinois Pub. Telecomm.
Ass'n, 117 F.3d 555 (D.C. Cir. 1997) (collectively, Payphone
Orders).

With respect to paragraph (A), the FCC required interex-
change carriers (IXCs) that carry calls originating from pay-
phones to compensate the payphone service provider (PSP).4
See 47 C.F.R. s 64.1300(a) ("[E]very carrier to whom a
completed call from a payphone is routed shall compensate
the payphone service provider for the call at a rate agreed
upon by the parties by contract."); Report and Order, Pay-
phone Orders, 11 FCC Rcd at 20,566, p 48; id. at 20,584, p 83.
Previously, PSPs had received no revenue for originating
certain calls (such as subscriber 800 and other toll-free num-
ber calls) and were prohibited from blocking callers from
making some of those calls (such as access code calls). See
Bell Atlantic-Delaware v. Frontier Communications Servs.,
Inc., 14 FCC Rcd 16,050, 16,053-54, p 5 (Com. Car. Bur. 1999)

__________
3 For background regarding s 276, see American Pub. Commu-
nications Council v. FCC, 215 F.3d 51, 53 (D.C. Cir. 2000); Illinois
Pub. Telecomm. Ass'n v. FCC, 117 F.3d 555, 558-61 (D.C. Cir.
1997).

4 "Long-distance telephone traffic is ordinarily transmitted by a
local exchange carrier ('LEC') from its origin to a long-distance
carrier (or interexchange carrier or 'IXC'). The IXC carries the
traffic to its region of destination and hands it off to the LEC
there." U.S. Tel. Ass'n v. FCC, 188 F.3d 521, 523-24 (D.C. Cir.
1999).

(hereinafter "Bureau Order"). The Commission concluded
that PSPs must be compensated for all such calls, and
determined that IXCs, as the primary beneficiaries of those
calls, should be responsible for providing that compensation.
See id. at 16,054, p 5; Report and Order, Payphone Orders,
11 FCC Rcd at 20,584, p 83.

To implement paragraph (B), the FCC ruled that in order
to receive compensation for completed calls originating from
its payphones, a PSP that is also a local exchange carrier
(LEC PSP), see supra note 4, "must be able to certify" that it
has complied with several requirements, including the institu-
tion of "effective intrastate tariffs reflecting the removal of
charges that recover the costs of payphones and any intra-
state [payphone] subsidies." Order on Reconsideration, Pay-
phone Orders, 11 FCC Rcd at 21,293, p 131. The FCC
delegated to its Common Carrier Bureau the authority to
make "any necessary determination as to whether a LEC has
complied with all requirements" for compensation. Id. at
21,294, p 132.

Verizon is a LEC PSP that offers local exchange and
payphone services in the northeast and mid-Atlantic states.
Global Crossing is an IXC that provides both interstate and
intrastate telephone toll service. Since October 1997, when
the per call compensation requirement became effective, Veri-
zon has delivered calls from its payphones to Global Crossing.

In June 1997, in order to obtain compensation for calls
originating from Verizon's payphones and carried by Global
Crossing, Verizon presented Global Crossing with signed
letters attesting that it had complied with all of the conditions
for receiving compensation, including the elimination of intra-
state subsidies. Global Crossing replied that it would not pay
compensation until Verizon provided additional information,
specified by Global Crossing, establishing that Verizon had in
fact satisfied the compensation eligibility prerequisites--par-
ticularly the removal of those subsidies. In June 1998,
representatives of Verizon and Global Crossing met with staff
of the Common Carrier Bureau, who advised that under the
FCC's rules and orders, "IXCs must compensate a LEC

payphone service provider upon receipt of the LEC's certifi-
cation of eligibility without further inquiry or requirements."
Bureau Order, 14 FCC Rcd at 16,058, p 10. Nonetheless,
Global Crossing continued to refuse to pay, and, on July 15,
1998, Verizon filed a formal complaint with the FCC pursuant
to 47 U.S.C. s 208.5 The complaint alleged that Global
Crossing had violated 47 U.S.C. s 276, as well as 47 C.F.R.
s 64.1300, by failing to compensate Verizon for more than
11,200,000 calls. Complaint pp 33-35.

In September 1999, the Common Carrier Bureau held that
Verizon had adequately certified its compliance with the
prerequisites for receiving compensation and ordered Global
Crossing to pay Verizon for applicable past and future calls.
Bureau Order, 14 FCC Rcd at 16,052, p 3. The Bureau
determined that "[t]he term 'certification' ... does not man-
date that a LEC payphone service provider prove to the IXC
payor that it has satisfied each compensation eligibility pre-
requisite," but rather requires that a LEC "attest[ ] authori-
tatively to an IXC payor that such LEC payphone service
provider has satisfied each prerequisite." Id. (emphasis add-
ed). The Bureau found that interpretation to be consistent
with prior Commission orders, and permissible under the
language of s 276. Id. at 16,063-65, pp 18-19, 22. And it
held that if Global Crossing (or any other IXC) wished to
question "the veracity of a LEC's certification," it was obliged
to do so by filing its own complaint with the Commission,

__________
5 Section 208, entitled "Complaints to Commission," states:

a) Any person ... complaining of anything done or omitted to
be done by any common carrier subject to this chapter, in
contravention of the provisions thereof, may apply to said
Commission by petition.... If such carrier ... shall not
satisfy the complaint within the time specified or there shall
appear to be any reasonable ground for investigating said
complaint, it shall be the duty of the Commission to investigate
the matters complained of in such manner and by such means
as it shall deem proper.

47 U.S.C. s 208.

rather than by simply refusing to make payment. Id. at
16,068, p 27.

The FCC affirmed the Bureau's decision in all respects.
Order on Review, Bell Atlantic-Delaware v. Frontier Com-
munications Servs., Inc., 15 FCC Rcd 7475, 7480, p 11 (2000)
(hereinafter "FCC Order"). The Commission also refused to
consider Global Crossing's "affirmative defense" that Verizon
"in fact, had not qualified for payphone compensation." Id. at
7479, p 9. The Commission held that this "so-called 'affirma-
tive defense' " was "irrelevant to evaluating [Global Cross-
ing's] obligation to pay upon receiving certification," and "was
not properly before the Bureau in the context of" a complaint
filed by a LEC PSP. Id. "[T]he proper way for an IXC to
challenge a LEC's failure to remove unlawful subsidies," the
FCC declared, "is to initiate a Section 208 proceeding at the
Commission." Id. at 7479-80, p 9.

II

Global Crossing contends that the FCC's determination,
that an IXC must pay a LEC PSP compensation merely upon
certification that the LEC has discontinued subsidizing its
payphone service, is neither consistent with s 276 of the
Telecommunications Act nor the product of reasoned deci-
sionmaking. We consider these two arguments below.

A

In addressing Global Crossing's statutory argument, we
apply the two-step framework of Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837
(1984).6 We first ask "whether Congress has directly spoken
to the precise question at issue," in which case we "must give
effect to the unambiguously expressed intent of Congress."

__________
6 In United States v. Mead Corp., the Supreme Court confirmed
the applicability of the Chevron test to a case like this one, where
"Congress delegated authority to the agency generally to make
rules carrying the force of law, and ... the agency interpretation
claiming deference was promulgated in the exercise of that authori-
ty." 121 S.Ct. 2164, 2171 (2001).

Id. at 842-43. If, however, the "statute is silent or ambigu-
ous with respect to the specific issue," we move to the second
step and defer to the agency's interpretation as long as it is
"based on a permissible construction of the statute," id. at
843, and is "reasonable in light of the Act's text, legislative
history, and purpose," Southern Cal. Edison Co. v. FERC,
116 F.3d 507, 511 (D.C. Cir. 1997).

Global Crossing asserts that permitting Verizon to receive
compensation merely upon its certification that it has discon-
tinued subsidies is inconsistent with the express language of
s 276, which requires the Commission to promulgate regula-
tions that "discontinue ... all intrastate and interstate pay-
phone subsidies ... in favor of a compensation plan." 47
U.S.C. s 276(b)(1)(B). That language, Global Crossing ar-
gues, "ties the timing of the receipt of compensation to the
removal of the subsidies," rendering Verizon unqualified to
receive compensation until it first removes all of its subsidies.
Reply Br. at 10. By allowing Verizon to rely on certification
alone, petitioner continues, the FCC permitted the LEC PSP
to receive per call compensation without regard to whether it
had in fact discontinued its payphone subsidies.

The FCC does not disagree that s 276 requires Verizon to
discontinue subsidies before it may receive compensation.
Indeed, the Bureau's decision "emphasize[s] that a LEC's
certification letter does not substitute for the LEC's obli-
gation to comply" with the requirements for compensation,
and that "LECs must satisfy the requirements ... to be
eligible to receive compensation." Bureau Order, 14 FCC
Rcd at 16,068, p 28. The Commission rightly notes, however,
that the statute is silent regarding the mechanism the FCC
should adopt to ensure that the statute's requirements are
carried out. See id. at 16,065, p 22. That being so, the only
question for us is whether, under Chevron step two, the
FCC's interpretation "is based on a reasonable construction
of the statutory term[s]." Chevron, 467 U.S. at 840. And we
see nothing unreasonable about the FCC's conclusion that the
statute permits it to adopt a certification regime.

 Global Crossing contends that by relying upon certifica-
tion--upon nothing more than the word of the LEC PSP--
the FCC cannot ensure that subsidies have been discontinued
"in favor of" compensation, and hence cannot ensure compli-
ance with that statutory requirement. But the FCC does not
rely solely upon certification; certification is merely the initial
step in the Commission's enforcement scheme. If an IXC
believes that a LEC PSP's certification is false or otherwise
unsupported, the IXC may file a complaint under s 208 of the
Communications Act and, if correct, will recover damages,
including its payments and interest thereon. See 47 U.S.C.
ss 206-09. Moreover, if a LEC PSP is found to have certi-
fied falsely, it faces additional penalties, including fines and
forfeitures, in an enforcement action brought by the Commis-
sion. See 47 U.S.C. ss 501-04. Taken together, these proce-
dural mechanisms appear reasonably calculated to accomplish
the congressional purpose.

Although the enforcement regime chosen by the Commis-
sion may not be the only one possible, we must uphold it as
long as it is a reasonable means of implementing the statuto-
ry requirements. See New England Tel. & Tel. Co. v. FCC,
826 F.2d 1101, 1107-08 (D.C. Cir. 1987). Certification is the
mechanism the FCC employs for a broad range of its other
statutory functions.7 There is nothing about the language or
purpose of s 276 to indicate that certification is an inappro-

__________
7 See, e.g., Cellular Phone Taskforce v. FCC, 205 F.3d 82, 92-93
(D.C. Cir. 2000) (rejecting a challenge to the FCC's decision to
allow undocumented self-certification of compliance with environ-
mental guidelines by FCC license applicants); CHM Broad. Ltd.
P'ship v. FCC, 24 F.3d 1453, 1455-56 (D.C. Cir. 1994) (noting that
the FCC uses self-certification to implement the statutory require-
ment that applicants for radio station licenses demonstrate their
financial qualifications); Supplemental Order Clarification, Imple-
mentation of the Local Competition Provisions of the Telecommu-
nications Act of 1996, 15 FCC Rcd 9587, 9602-03, p 29 (2000)
(clarifying that "incumbent LECs must allow requesting carriers to
self-certify" that they meet certain requirements, and noting that "a
letter sent to the incumbent LEC by a requesting carrier is a
practical method of certification").

priate method of fulfilling the payphone requirements of the
Telecommunications Act as well.

B

In addition to its statutory argument, Global Crossing
advances two further arguments that are best characterized
as claims that the FCC's certification policy does not repre-
sent reasoned decisionmaking. As to these claims, we apply
the deferential standard of the Administrative Procedure Act
(APA), and will uphold the Commission's policy judgments as
long as they are not "arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law." 5
U.S.C. s 706(2)(A). To satisfy that standard, an agency must
"examine the relevant data and articulate a satisfactory expla-
nation for its action including a 'rational connection between
the facts found and the choice made.' " Motor Vehicle Mfrs.
Ass'n of United States, Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines,
Inc. v. United States, 371 U.S. 156, 168 (1962)).

In an argument that largely overlaps with its claims under
Chevron step two, Global Crossing asserts that the FCC
failed to articulate any reasoned basis for relying on a policy
of certification. We are not persuaded. As discussed in Part
II.A, the Commission reasonably concluded that certification
of compliance, coupled with provisions for complaint and
enforcement proceedings, will accomplish the statutory pur-
pose of discontinuing payphone subsidies. At the same time,
the FCC reasonably determined that requiring IXCs to pay
immediately upon certification for calls routed over their
networks will promote certainty in the achievement of Con-
gress' other purpose: " 'ensur[ing] that all payphone service
providers are fairly compensated for each and every ...
call.' " Bureau Order, 14 FCC Rcd at 16,064, p 20 (quoting 47
U.S.C. s 276(b)(1)(A)). Global Crossing may be correct in
arguing that certainty of compensation can also be ensured
by permitting an IXC to decide whether a LEC PSP's proof
of compliance is sufficient, and then requiring the LEC to file
a complaint with the Commission if it is dissatisfied. But

Congress has delegated the authority to make the choice
between such alternatives to the FCC, and our only responsi-
bility is to ensure that the choice the FCC has made is a
reasonable one.

Global Crossing also contends that, in requiring payment
upon mere certification, the FCC departed from its prior
orders and precedents without explanation. It is true that
"an agency changing its course by rescinding a rule" or
departing from precedent "is obligated to supply a reasoned
analysis for the change." State Farm, 463 U.S. at 42; see
Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852
(D.C. Cir. 1970). But it is also true that we must defer to an
agency's reading of its own regulations unless that reading is
"plainly erroneous or inconsistent with the regulation[s],"
Auer v. Robbins, 519 U.S. 452, 461 (1997), and that we must
accord deference to an agency's reasonable interpretation of
its own precedents, see Cassell v. FCC, 154 F.3d 478, 483
(D.C. Cir. 1998). We perceive no unexplained departure from
the agency's prior policies here.

To implement s 276(b)(1)(B), the FCC issued an order
providing that a LEC PSP "must be able to certify" that it
has, inter alia, removed intrastate subsidies before it may
receive compensation for calls originating from its payphones.
Order on Reconsideration, Payphone Orders, 11 FCC Rcd at
21,293, p 131. The Commission's order did not specify the
requirements for such certification, but instead delegated to
the Common Carrier Bureau the authority to make "any
necessary determination as to whether a LEC has complied
with all requirements" for compensation. Id. at 21,294, p 132.
Global Crossing maintains that "to certify" means more than
merely to attest to compliance; rather, it requires the LEC
PSP to provide the IXC with full proof that it has satisfied all
regulatory conditions. The Bureau, however, interpreted the
phrase as requiring only attestation, and the FCC confirmed
that as the correct construction of the Commission's own
language. FCC Order, 15 FCC Rcd at 7479, p 7.

 The Bureau's interpretation of the Commission's order is a
reasonable one. The Bureau relied upon "the ordinary mean-
ing of the term 'to certify,' " defined by Black's Law Dictio-
nary as "the formal assertion in writing of some fact," and by
Webster's as "to attest as being true." Bureau Order, 14
FCC Rcd at 16,062, p 16 (citing Black's Law Dictionary 227
(6th ed. 1990); Webster's Ninth New Collegiate Dictionary
223 (1989)). It also noted that the Commission has used this
meaning of "certify" in other contexts. Id. at 16,062-63, p 17
(citing 47 C.F.R. s 1.734(c) (providing that the signature of a
party on a pleading "shall be a certificate that ... to the best
of his or her knowledge [the pleading] is well grounded in
fact")); see also CHM Broad. Ltd. P'ship v. FCC, 24 F.3d
1453, 1455 (D.C. Cir. 1994) (noting that an applicant for an
FM radio license "certifies" that it has sufficient assets to
construct and operate a station by checking "yes" on an FCC
form).

The Bureau further observed, correctly, that this interpre-
tation of "to certify" is consistent with decisions issued by the
FCC and the Bureau since the promulgation of the initial
1996 Payphone Orders. The Bureau pointed out, for exam-
ple, that the Commission had ruled that LEC PSPs are not
required to file a certification with any state or federal
regulatory agency, or to obtain a formal certification of
compliance from either the states or the FCC, in order to be
eligible to receive compensation. Bureau Order, 14 FCC Rcd
at 16,054-55, p 6 (citing Second Report and Order, 13 FCC
Rcd at 1780, p 1 n.9). The Bureau also noted that, in its
Intrastate Tariffing Waiver Order, it specifically refused
AT&T's request to declare that "a LEC is not eligible for
payphone compensation 'until it has provided proof of state
action verifying the LEC's compliance with section 276.' " Id.
at 16,063, p 18 (quoting 12 FCC Rcd at 21,377, p 16). Instead,
the Bureau "reiterated that the Commission's previous orders
required only that a LEC 'be able to certify' compliance with
the payphone compensation prerequisites." Id. (quoting 12
FCC Rcd at 21,380, p 22). And in two further orders, the
Bureau declared that "LECs that have certified to the IXC
that they comply with the requirements of the Payphone
Orders must receive per-call compensation." Implementa-

tion of the Pay Telephone Reclassification and Compensa-
tion Provisions of the Telecommunications Act of 1996, 13
FCC Rcd 4998, 5002, p 4 (Com. Car. Bur. 1998) (emphasis
added); see also Implementation of the Pay Telephone Re-
classification and Compensation Provisions of the Telecom-
munications Act of 1996, 13 FCC Rcd 10,893, 10,899, p 12
(Com. Car. Bur. 1998).

In sum, the agency order at issue in this case reflects
neither a failure to articulate a reasonable basis for decision,
nor a departure from FCC policy and precedent. We there-
fore find it to be consistent with the APA's standards for
reasoned decisionmaking.

III

Global Crossing also challenges the Commission's determi-
nation that an IXC seeking to contest the veracity of a LEC
PSP's certification must file its own complaint for damages
under 47 U.S.C. s 208, and may not assert lack of compliance
as an "affirmative defense" to a complaint brought by a LEC
PSP. Petitioner contends that by directing it to pay Verizon
without considering its defense of noncompliance, the Com-
mission abdicated its "duty to adjudicate issues raised in
complaint proceedings." Global Crossing Br. at 12. Citing
our opinion in American Telephone & Telegraph Co. v. FCC,
978 F.2d 727 (D.C. Cir. 1992), Global Crossing argues that by
refusing to address its affirmative defense, the FCC breached
its duty to consider Global Crossing's claim on the merits.

We do not agree. First, as the FCC points out, there was
no failure to consider an "affirmative defense" here because
the FCC has not designated noncompliance as an affirmative
defense; rather, it is part of the case-in-chief that an IXC
must initiate on its own. Second, this approach is not con-
trary to our ruling in American Telephone. In that case, the
Commission relied on the validity of an earlier FCC order in
dismissing a complaint brought by AT&T against a competi-
tor--without adjudicating AT&T's claim that the order was
unlawful. The Commission said that it would instead consid-
er the validity of the order in a new rulemaking. We held

that the Commission could not postpone a question concern-
ing the application of existing law by declaring its intent to
consider a future change in that law. The Commission, we
said, appeared to be trying to "avoid judicial review" of its
order by engaging in "a sort of administrative law shell
game." American Tel. & Tel., 978 F.2d at 731-32; see id. at
729, 731-32.

Here, however, there is no shell game, because the FCC
has made quite clear under which shell the pea lies. The
Commission has advised Global Crossing several times that if
it wishes to contest Verizon's qualifications for payphone
compensation, it should bring a separate action under s 208.
And the Commission has also made clear that if Global
Crossing brings such an action, it will decide the matter in
that forum. Although the Commission does have an obli-
gation to adjudicate claims raised by a party filing a com-
plaint, see American Tel. & Tel., 978 F.2d at 732, it will fulfill
that obligation by considering Global Crossing's allegations
when they are properly filed.8

Nor has Global Crossing been able to articulate how it is
disadvantaged by the Commission's requirement that it be a
complainant rather than a respondent. As petitioner con-
ceded at oral argument, there is no difference in the alloca-
tion of the burden of proof: Although the party that brings a
s 208 complaint bears the burden, see Hi-Tech Furnace Sys.,
Inc. v. FCC, 224 F.3d 781, 787 (D.C. Cir. 2000), so does a
party that asserts an affirmative defense to such a complaint,
see AT&T v. Business Telecom, Inc., FCC 01-185, 2001 WL
575527, at p 46 (rel. May 30, 2001). At oral argument, Global
Crossing also denied that it would derive any economic
benefit from being a respondent rather than a complainant:
It noted that because it would recover its payments with
interest if it prevailed on a s 208 complaint, there was no
difference between asserting noncompliance as an affirmative

__________
8 See AT&T v. FCC, 220 F.3d 607, 631 (D.C. Cir. 2000) (holding
that the FCC may, consistent with American Telephone, bar collat-
eral challenges to other FCC orders in proceedings brought to
adjudicate applications to provide in-region long distance service).

defense to nonpayment, and paying upon demand and then
filing a complaint to recover. Indeed, Global Crossing even
denied that cash-flow considerations made the position of
respondent preferable. But if Global Crossing truly has
nothing to gain from the alternative for which it presses, and
hence suffers no disadvantage from the procedural posture to
which the FCC has assigned it, then it would appear to have
little basis for complaining about the FCC's decision.

It is well-settled that the Commission "enjoys wide discre-
tion in fashioning its own procedures." City of Angels
Broad., Inc. v. FCC, 745 F.2d 656, 664 (D.C. Cir. 1984).
Section 208 authorizes the FCC to investigate a complaint "in
such manner and by such means as it shall deem proper." 47
U.S.C. s 208. More generally, 47 U.S.C. s 154(j) provides
that "[t]he Commission may conduct its proceedings in such
manner as will best conduce to the proper dispatch of busi-
ness and to the ends of justice." Although Global Crossing
contends that designation of an issue as part of an affirmative
case rather than as an affirmative defense is a matter of
substance, not procedure, we disagree. The Supreme Court
has interpreted s 154(j) "as explicitly and by implication
delegating to the Commission power to resolve subordinate
questions of procedure such as the scope of the inquiry,
whether applications should be heard contemporaneously or
successively, whether parties should be allowed to intervene
in one another's proceedings, and similar questions." FCC v.
Schreiber, 381 U.S. 279, 289 (1965) (internal quotations omit-
ted). The question of whether an issue is properly designat-
ed as an affirmative defense falls well within that rubric. Cf.
Fed. R. Civ. P. 8(c) (designating certain issues as "affirmative
defenses" rather than "counterclaims"); AT&T, 220 F.3d 607,
630 (D.C. Cir. 2000) (according deference, in a proceeding
under 47 U.S.C. s 271, to the FCC's decision to bar a
collateral challenge to a prior FCC order and instead to
require the filing of a separate petition for review). And
because there is nothing arbitrary about the FCC's decision
to require Global Crossing to raise its claim of noncompliance
by separate complaint, the Commission's decision "may not be

impeached merely because reasonable minds might differ on
the wisdom thereof." Id. at 292.

IV

For the foregoing reasons, Global Crossing's petition for
review is denied and the FCC's order on review is

Affirmed.