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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 15, 2003 Decided June 6, 2003
No. 02-1264
CELLULAR TELECOMMUNICATIONS & INTERNET ASSOCIATION AND
CELLCO PARTNERSHIP, D/B/A VERIZON WIRELESS,
PETITIONERS
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
CINGULAR WIRELESS LLC, ET AL.,
INTERVENORS
On Petition for Review of an Order of the
Federal Communications Commission
Andrew G. McBride argued the cause for petitioners.
With him on the briefs were John T. Scott III, Michael F.
Altschul, and R. Michael Senkowski.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
John E. Ingle, Deputy Associate General Counsel, Federal
Communications Commission, argued the cause for respon-
dents. With him on the brief were R. Hewitt Pate, Acting
Assistant Attorney General, U.S. Department of Justice,
Catherine G. O’Sullivan and Andrea Limmer, Attorneys,
John A. Rogovin, Acting General Counsel, Federal Communi-
cations Commission, Richard K. Welch, Associate General
Counsel, and Rodger D. Citron, Counsel. Stewart A. Block,
Counsel, entered an appearance.
L. Andrew Tollin, L. Charles Keller, Craig E. Gilmore,
Glenn S. Rabin, Douglas I. Brandon, Laura R. Handman,
Carol L. Tacker, Luisa L. Lancetti, and Lawrence J. Movsh-
in were on the brief for intervenors Cingular Wireless LLC,
et al., in support of petitioners. Kenneth D. Patrich entered
an appearance.
James Bradford Ramsay was on the brief for intervenor
National Association of Regulatory Utility Commissioners in
support of respondent.
Richard P. Bress and James H. Barker were on the brief
for intervenor Leap Wireless International, Inc., urging affir-
mance.
Before: EDWARDS, RANDOLPH and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
EDWARDS, Circuit Judge: Currently, a wireless telephone
customer who wishes to switch from one wireless service
provider to another must also change telephone numbers. In
1996, the Federal Communications Commission (‘‘Commis-
sion’’ or ‘‘FCC’’) promulgated regulations requiring wireless
carriers to provide ‘‘number portability’’ – the ability of
consumers to keep their phone numbers when they switch
wireless carriers – and set a compliance date of June 30, 1999.
See Telephone Number Portability, First Report and Order
and Further Notice of Proposed Rule, 11 F.C.C.R. 8352, 1996
WL 400225 (1996) (‘‘First Report and Order’’); 47 C.F.R.
§ 52.31. In 1999, the Commission granted a request from
petitioner Cellular Telecommunications & Internet Associa-
tion (‘‘CTIA’’), pursuant to 47 U.S.C. § 160(a), for temporary
3
forbearance from enforcement of the Commission’s wireless
number portability rules, and extended the compliance dead-
line to November 24, 2002. See CTIA’s Petition for Forbear-
ance From Commercial Mobile Radio Services Number Port-
ability Obligations, Memorandum Opinion and Order, 14
F.C.C.R. 3092, 1999 WL 58618 (1999) (‘‘Temporary Forbear-
ance Order’’). Petitioner Verizon Wireless then sought per-
manent forbearance from the Commission’s wireless number
portability rules. On July 26, 2002, the Commission denied
Verizon Wireless’ forbearance petition, but extended the en-
forcement deadline to November 24, 2003. See Verizon Wire-
less’s Petition for Partial Forbearance from the Commercial
Mobile Radio Services Number Portability Obligation, Mem-
orandum Opinion and Order, 17 F.C.C.R. 14,972, 2002 WL
1733284 (2002) (‘‘Order’’).
In the instant case, petitioners CTIA and Verizon Wireless
seek review of the Commission’s Order denying permanent
forbearance from enforcement of the Commission’s 1996 rules
requiring wireless carriers to provide number portability.
Petitioners challenge the Commission’s statutory authority to
impose wireless number portability. Petitioners also contend
that the Commission misinterpreted and misapplied § 10(a) of
the Telecommunications Act of 1996, 47 U.S.C. § 160(a),
which requires the Commission to forbear from enforcement
of its regulations if three standards are met, including the
condition that ‘‘enforcement TTT is not necessary for the
protection of consumers.’’
We dismiss the petition for review in part and deny the
petition in part. We first find that petitioners’ challenge to
the FCC’s authority to impose wireless number portability is
time-barred. A petition for judicial review to challenge a
final order of the Commission must be filed ‘‘within 60 days
after its entry.’’ See 28 U.S.C. § 2344; see also 47 U.S.C.
§ 402(a). The FCC promulgated the number portability
rules in July 1996 and the petition for review in this case was
not filed until August 2002. The petition for review is clearly
untimely. The statutory time limit is jurisdictional. There-
fore, we are constrained to dismiss the untimely petition for
review for want of jurisdiction.
4
On petitioners’ challenge to the Commission’s decision not
to forbear from enforcement of the wireless number portabili-
ty rules, we conclude that the Commission’s interpretation
and application of the second prong of the enforcement test
under § 10(a) (‘‘enforcement TTT is not necessary for the
protection of consumers’’) was permissible and reasonable.
The statutory term ‘‘necessary’’ does not have a plain mean-
ing under Step One of Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). And, in
the context of the forbearance statute, ‘‘necessary’’ certainly
cannot plainly mean ‘‘absolutely required’’ or ‘‘indispensable,’’
as petitioners would have it, for that would leave the second
prong of the forbearance test with no obvious applications.
The Commission construed the term ‘‘necessary’’ to mean
that there must be a strong connection between what the
agency does by way of regulation and what the agency
permissibly seeks to achieve with that regulation. Under this
reasonable interpretation of the forbearance statute, the
Commission found that number portability rules are required
to achieve the desired statutory goal of consumer protection.
The Commission therefore did not err in declining to forbear
from enforcement of the wireless number portability rules.
We therefore deny the petition for review of the Commis-
sion’s forbearance decision.
I. BACKGROUND
Congress passed the Telecommunications Act of 1996, Pub.
L. No. 104-104, 110 Stat. 56, codified at 47 U.S.C. § 151 et
seq. (‘‘the 1996 Act’’ or ‘‘the Act’’), to ‘‘promote competition
and reduce regulation in order to secure lower prices and
higher quality services for American telecommunications con-
sumers and encourage the rapid deployment of new telecom-
munications technologies.’’ 1996 Act, preamble. In pursuit
of that goal, § 10(a) directs that the Commission
shall forbear from applying any regulation or any
provision of this chapter to a telecommunications
carrier or telecommunications service, or class of
telecommunications carriers or telecommunications
5
services, in any or some of its or their geographic
markets, if the Commission determines that–
(1) enforcement of such regulation or provision is
not necessary to ensure that the charges, prac-
tices, classifications, or regulations by, for, or in
connection with that telecommunications carrier
or telecommunications service are just and reason-
able and are not unjustly or unreasonably discrim-
inatory;
(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).
The Act defines ‘‘number portability’’ as ‘‘the ability of
users of telecommunications services to retain, at the same
location, existing telecommunications numbers without im-
pairment of quality, reliability, or convenience when switching
from one telecommunications carrier to another.’’ Id.
§ 153(30). Section 251(b) of the Act requires all local ex-
change carriers ‘‘to provide, to the extent technically feasible,
number portability in accordance with requirements pre-
scribed by the Commission.’’ Id. § 251(b)(2). The Act de-
fines ‘‘local exchange carrier’’ (‘‘LEC’’) as
any person that is engaged in the provision of tele-
phone exchange service or exchange access. Such
term does not include a person insofar as such
person is engaged in the provision of a commercial
mobile service under section 332(c) of this title,
except to the extent that the Commission finds that
such service should be included in the definition of
such term.
Id. § 153(26). The Commission has not made a determina-
tion that commercial mobile radio service (‘‘CMRS’’ or ‘‘wire-
less’’) service should be included in the definition of ‘‘local
6
exchange carrier.’’ The Act thus does not expressly require
wireless carriers to provide number portability.
On July 2, 1996, the Commission promulgated rules requir-
ing wireless carriers to provide number portability. See First
Report and Order, 11 F.C.C.R. 8352. Although wireless
carriers are not LECs, the Commission, in its First Report
and Order, concluded that it had independent authority,
under 47 U.S.C. §§ 151, 152, 152 & 332, to require wireless
carriers to provide number portability. Id. at 8355. The
Commission set a compliance date of June 30, 1999 for
wireless carriers. Id. On petition for reconsideration, the
Commission reaffirmed its principal findings. See Telephone
Number Portability, First Memorandum Opinion and Order
on Reconsideration, 12 F.C.C.R. 7236, 7315-17, 1997 WL
106479 (1997) (‘‘First Reconsideration Order’’).
On May 30, 1997, petitioner Verizon Wireless’ predecessor
in interest, Bell Atlantic NYNEX Mobile, filed a petition for
review of the Commission’s wireless number portability rules
in this court, challenging the Commission’s authority to im-
pose wireless number portability. The petition was sup-
ported by a number of intervenors, including petitioner CTIA.
The case was transferred to the Tenth Circuit and briefed.
Meanwhile, on December 16, 1997, CTIA filed a forbear-
ance petition with the Commission under § 10(a) of the Act,
47 U.S.C. § 160(a), seeking temporary forbearance from en-
forcement of the number portability requirements for wire-
less carriers until completion of a five-year build-out period
prescribed by the Commission. On February 9, 1999, the
Commission granted the petition and extended the wireless
number portability enforcement deadline to November 24,
2002. See Temporary Forbearance Order, 14 F.C.C.R. at
3093, 3116-17. The Commission found that the three-prong
test for forbearance under § 10(a) had been met. It found
that wireless number portability was not necessary at that
time to ensure just and reasonable charges and practices,
because competition in the wireless market had increased
significantly. Nor was wireless number portability necessary
at that time to protect consumers, because the demand for
7
number portability among consumers was low. Finally, the
Commission found temporary forbearance consistent with the
public interest because the industry needed additional time to
develop number portability technology and improvements
likely to enhance service and competition. See id. at 3101-09.
But the Commission rejected permanent forbearance, be-
cause, in the longer term, wireless number portability was
expected to become increasingly important to consumers as
wireless phones became potential substitutes for their wire-
line phones. See id. at 3103-04.
On March 19, 1999, in light of the Commission’s extension
of the enforcement deadline to November 24, 2002, Bell
Atlantic and the Commission agreed to dismiss without preju-
dice the case that was pending before the Tenth Circuit. The
stipulated dismissal provided that the Commission ‘‘shall not
object to Bell Atlantic Mobile’s presentation of the same
issues and arguments presented in this appeal in any other
present or future proceeding involving review of an FCC
action or order concerning CMRS number portability.’’ Joint
Motion for Dismissal, Bell Atlantic NYNEX Mobile, Inc. v.
FCC, No. 97-9551 (10th Cir. filed Mar. 19, 1999), reprinted in
Joint Appendix (‘‘JA’’) 1055.
On July 26, 2001, with the November 2002 enforcement
deadline approaching, Verizon Wireless filed a petition with
the Commission, seeking permanent forbearance from the
wireless number portability rules under § 10(a). Verizon
Wireless claimed that the wireless market was already suffi-
ciently competitive; that the industry should not be required
to implement wireless number portability while attempting to
comply with other regulatory requirements; and that the
costs of implementing wireless number portability would ex-
ceed the benefits. See Verizon Wireless’ Petition Pursuant to
47 U.S.C. § 160 for Partial Forbearance from the CMRS
Number Portability Obligation, JA 305-07. On July 26, 2002,
the Commission issued the Order that is the subject of the
instant petition for judicial review. The Commission denied
Verizon Wireless’ petition for permanent forbearance, but
extended the implementation deadline by another year, to
November 24, 2003. See Order, 17 F.C.C.R. at 14,972.
8
The Commission found that permanent forbearance was
not justified under the second and third prongs of the § 10(a)
forbearance test. On the second prong (‘‘enforcement TTT is
not necessary for the protection of consumers’’), the Commis-
sion reasoned that the market was developing as anticipated
in the 1999 Temporary Forbearance Order, such that more
consumers viewed their wireless phones as potential substi-
tutes for their wireline phones, and that wireless service was
competing directly with wireline service. Id. at 14,978-79.
‘‘As these trends continue, and as wireless service subscribers
increase the frequency with which they give out their mobile
telephone number, we anticipate that an increasing number of
consumers will be reluctant to change wireless service provid-
ers unless they can keep the same number,’’ and ‘‘will find
themselves forced to stay with carriers with whom they may
be dissatisfied because the cost of giving up their wireless
phone number in order to move to another carrier is too
high.’’ Id. at 14,979-80. The Commission thus concluded
that ‘‘a permanent forbearance from the [number portability]
requirements for CMRS carriers is not consistent with the
protection of consumers.’’ Id. at 14,978.
On the third prong (‘‘forbearance TTT is consistent with the
public interest’’), the Commission worried about market fail-
ure, reasoning that
it is unlikely for the entire industry to agree to move
to wireless [number portability] voluntarily. In ad-
dition, there may be economic disincentives for any
individual carrier to be the first to voluntarily adopt
full [number portability], which would provide its
subscribers the flexibility to switch to a different
carrier while retaining their current phone numbers.
This is because, absent the implementation of full
[number portability] by other wireless carriers, that
carrier could not gain any new wireless customers
from the non-participating wireless carriers. As a
result, to ensure that consumers have the ability to
switch carriers while retaining their phone numbers,
9
we must require wireless carriers to implement
[number portability].
Id. at 14,981. The Commission again emphasized the trend of
consumers’ use of wireless phones as their main phones, and
the importance of wireless number portability to eliminating a
disincentive to switch among wireless carriers based on com-
petitive factors such as price, service, and coverage. Id.
Thus, the Commission deemed permanent forbearance incon-
sistent with the public interest.
Although the Commission denied permanent forbearance, it
found that further extension of the implementation deadline
to November 24, 2003 was warranted, to provide adequate
time to resolve technical and non-technical issues. See id. at
14,981-83.
This petition for review of the Commission’s Order fol-
lowed.
II. ANALYSIS
A. Standard of Review
In reviewing the Commission’s construction of the test for
forbearance under § 10(a), we are governed by the principles
enunciated in Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). In Chevron, the
Court held that, ‘‘[i]f the intent of Congress is clear, that is
the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Congress.’’ 467 U.S. at 842-43. If ‘‘Congress has not directly
addressed the precise question at issue,’’ and the agency has
acted pursuant to an express or implicit delegation of authori-
ty, the agency’s interpretation of the statute is entitled to
deference so long as it is ‘‘reasonable’’ and not otherwise
‘‘arbitrary, capricious, or manifestly contrary to the statute.’’
Id. at 843-44. See also Motion Picture Ass’n of Am., Inc. v.
FCC, 309 F.3d 796, 801 (D.C. Cir. 2002).
The Commission’s Order is also subject to review under the
traditional ‘‘arbitrary and capricious’’ standard. As the Su-
preme Court explained in Motor Vehicle Manufacturers
10
Ass’n v. State Farm Mutual Automobile Insurance Co., 463
U.S. 29, 43 (1983),
[t]he scope of review under the ‘‘arbitrary and capri-
cious’’ standard is narrow and a court is not to
substitute its judgment for that of the agency. Nev-
ertheless, the agency must examine the relevant
data and articulate a satisfactory explanation for its
action including a ‘‘rational connection between the
facts found and the choice made.’’ Burlington
Truck Lines, Inc. v. United States, 371 U.S. 156, 168
(1962). In reviewing that explanation, we must
‘‘consider whether the decision was based on a con-
sideration of the relevant factors and whether there
has been a clear error of judgment.’’ Bowman
Transportation, Inc. v. Arkansas-Best Freight Sys-
tem, Inc., [419 U.S. 281, 285 (1974) ]; Citizens to
Preserve Overton Park v. Volpe, [401 U.S. 402, 416
(1971) ].
B. Timeliness of Challenge to FCC’s Statutory Authority
to Impose Number Portability
In conjunction with their petition for review of the FCC’s
decision not to forbear from enforcing the wireless number
portability requirement, petitioners also seek to challenge the
Commission’s statutory authority to impose wireless number
portability. See Petitioners’ Br. 35-36. We hold that the
question of the Commission’s statutory authority to impose
wireless number portability is not properly before this court.
First, petitioners’ challenge to the Commission’s statutory
authority is nothing more than a challenge to the underlying
regulations, promulgated in 1996, requiring wireless carriers
to provide number portability. See First Report and Order,
11 F.C.C.R. 8352; First Reconsideration Order, 12 F.C.C.R.
7236. The Commission specifically addressed the issue of its
authority to require wireless number portability in the First
Report and Order, 11 F.C.C.R. at 8433, and in the First
Reconsideration Order, 12 F.C.C.R. at 7315-16. Petitioners
challenged the Commission’s authority to require wireless
11
number portability in their petition for review of the First
Report and Order and the First Reconsideration Order,
thereby satisfying the statutory requirement that a petition
for judicial review of a final order of the Commission must be
filed ‘‘within 60 days after its entry.’’ See 28 U.S.C. § 2344;
see also 47 U.S.C. § 402(a). However, petitioners later volun-
tarily dismissed their petition for review, see Joint Motion for
Dismissal, JA 1053-58, and did not refile their petition within
the statutory time limit. Petitioners’ challenge to the Com-
mission’s authority to promulgate the underlying regulations
in the instant case is therefore untimely.
It does not matter whether the Commission agreed, in
settling the case before the Tenth Circuit, not to object to the
presentation of the same issues and arguments in any future
proceeding involving review of an order concerning wireless
number portability. See id. at 1055. The 60-day statutory
deadline is jurisdictional. Natural Res. Def. Council v. Nu-
clear Regulatory Comm’n, 666 F.2d 595, 601-02 (D.C. Cir.
1981); see Freeman Eng’g Assocs., Inc. v. FCC, 103 F.3d 169,
177 (D.C. Cir. 1997) (‘‘An untimely appeal must be dismissed
for lack of jurisdiction’’) (citation and internal quotation
marks omitted; emphasis in original). And this court is not
bound by any agreement between the parties that purports to
abrogate this jurisdictional requirement.
We recognize that statutory time limits are not always
inviolate. For example, there are at least two notable cir-
cumstances in which the court will entertain challenges be-
yond a statutory time limit to the authority of an agency to
promulgate a regulation: (1) following enforcement of the
disputed regulation; and (2) following an agency’s rejection of
a petition to amend or rescind the disputed regulation. See
NLRB Union v. FLRA, 834 F.2d 191, 195-97 (D.C. Cir. 1987).
Neither of those situations is present here. The Commission
has not yet enforced the wireless number portability require-
ment against petitioners. When the November 24, 2003
enforcement date arrives, if the Commission in fact enforces
the regulation against petitioners, then petitioners may be
able to challenge the underlying regulation as applied to
them. But because the 60-day statutory limitations period
12
has expired, petitioners cannot challenge the regulation be-
fore it is enforced against them.
In short, the challenge to the FCC’s authority to impose
wireless number portability is untimely. We therefore dis-
miss this claim.
C. Forbearance
The statutory test for forbearance under § 10(a) has three
prongs that must all be satisfied before the Commission is
obligated to forbear from enforcing a regulation or a statuto-
ry provision: (1) ‘‘enforcement TTT is not necessary to ensure
that the charges, practices, classifications, or regulations TTT
are just and reasonable and are not unjustly or unreasonably
discriminatory’’; (2) ‘‘enforcement TTT is not necessary for
the protection of consumers’’; and (3) ‘‘forbearance TTT is
consistent with the public interest.’’ See 47 U.S.C. § 160(a).
The three prongs of § 10(a) are conjunctive. The Commis-
sion could properly deny a petition for forbearance if it finds
that any one of the three prongs is unsatisfied. Because we
conclude that the Commission did not err in finding that the
second prong was not met, it is unnecessary for us to address
the FCC’s decision with respect to the other two prongs.
Petitioners’ challenge to the Commission’s application of
§ 10(a)’s second prong centers on the meaning of statutory
term ‘‘necessary.’’ Petitioners contend that, in applying the
second prong (‘‘not necessary for the protection of consum-
ers’’), the Commission erred in failing to construe ‘‘necessary’’
to mean ‘‘absolutely required,’’ ‘‘indispensable,’’ or ‘‘essential.’’
Petitioners’ position is that the Commission must forbear
from enforcement of its wireless number portability rules if
enforcement is not absolutely required to protect consumers.
See Petitioners’ Br. 23-28. Petitioners argue that enforce-
ment of the wireless number portability rules is not absolute-
ly required to protect consumers, because, in petitioners’
view, the rate of wireless consumers switching carriers is high
even absent number portability. See id. at 26.
Petitioners contend that this reasoning is compelled by the
plain meaning of the adjective ‘‘necessary,’’ which, they point
13
out, often is defined as ‘‘absolutely required,’’ ‘‘indispensable,’’
or ‘‘essential.’’ See Petitioners’ Br. 23 (citing MERRIAM WEB-
STER’S COLLEGIATE DICTIONARY 744 (10th ed. 2000)). But dueling
over dictionary definitions is pointless, for it fails to produce
any plain meaning of the disputed word. See A. Raymond
Randolph, Dictionaries, Plain Meaning, and Context in Stat-
utory Interpretation, 17 HARV. J.L. & PUB. POL’Y 71 (1994). If
we focus on legal contexts, BLACK’S LAW DICTIONARY 1052 (7th
ed. 1999) defines ‘‘necessary and proper’’ to mean ‘‘[b]eing
appropriate and well adapted to fulfilling an objective.’’ For
example, in the context of the Necessary and Proper Clause
of the Constitution, U.S. CONST. art. I, § 8, cl. 18, the Supreme
Court ‘‘long ago rejected the view that the Necessary and
Proper Clause demands that an Act of Congress be ‘‘‘abso-
lutely necessary’’’ to the exercise of an enumerated power.
See McCulloch v. Maryland, 4 Wheat. 316, 414-15 (1819).
Rather, it suffices that ‘‘a statute is ‘conducive to TTT’ and is
‘plainly adapted’ to [its] end, id., at 417, 421.’’ Jinks v.
Richland County, 123 S. Ct. 1667, 1671 (2003) (emphasis in
original). Hence the word ‘‘necessary’’ does not always mean
absolutely required or indispensable.
Indeed, there are many situations in which the use of the
word ‘‘necessary,’’ in context, means something that is done,
regardless of whether it is indispensable, to achieve a particu-
lar end. See Randolph, supra, at 72-74. For example, ‘‘nec-
essary improvement’’ is defined as ‘‘an improvement to prop-
erty that is made to prevent its deterioration.’’ WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LAN-
GUAGE UNABRIDGED 1511 (1976). The point is simple: it is
crucial to understand the context in which the word is used in
order to comprehend its meaning. See McCulloch, 17 U.S. (4
Wheat.) at 414 (stating that the word ‘‘necessary’’ ‘‘admits of
all degrees of comparison; and is often connected with other
words, which increase or diminish the impression the mind
receives of the urgency it imports’’).
In AT&T Corp. v. Iowa Utilities Board, 525 U.S. 366, 390
& n.11 (1999), the Supreme Court applied a narrow construc-
tion of ‘‘necessary’’ in reviewing a challenge to the Commis-
sion’s interpretation of the term in 47 U.S.C. § 251(d)(2).
14
This court followed suit in GTE Service Corp. v. FCC, 205
F.3d 416, 423 (D.C. Cir. 2000), in reviewing the Commission’s
interpretation of ‘‘necessary’’ in 47 U.S.C. § 251(c)(6), holding
that,
[a]s is clear from the Court’s judgment in Iowa
Utilities Board, a statutory reference to ‘‘necessary’’
must be construed in a fashion that is consistent
with the ordinary and fair meaning of the word, i.e.,
so as to limit ‘‘necessary’’ to that which is required
to achieve a desired goal.
It is significant that GTE Service Corp. applied a definition
of ‘‘necessary’’ – ‘‘that which is required to achieve a desired
goal’’ – that does not foreclose a particular means to an end
merely because other means are hypothetically available to
achieve the desired end. This is entirely understandable,
because a definition of ‘‘necessary’’ that embraces only a
narrow construction in all contexts makes no sense. For
example, if a house foundation is weakening due to excess
water on the property, and the goal of a home improvement
project is to eliminate the water problem, viable solutions
might include rebuilding the foundation to make it strong
enough to withstand any water, digging around the house to
divert water away from the house, or adding sump pumps to
the house interior to expel water excesses. A solution is
‘‘required to achieve the desired goal,’’ thus ‘‘necessary.’’
None of the solutions is ‘‘indispensable’’ in the sense that it is
absolutely required, because either of the other two might do
as well to achieve the desired goal. But the selection of any
one of the solutions is ‘‘necessary’’ to achieve the desired goal.
Thus, the solution that is selected is necessary to achieve the
desired goal.
‘‘[C]ourts have frequently interpreted the word ‘necessary’
to mean less than absolutely essential, and have explicitly
found that a measure may be ‘necessary’ even though accept-
able alternatives have not been exhausted.’’ Natural Res.
Def. Council v. Thomas, 838 F.2d 1224, 1236 (D.C. Cir. 1988)
(citing FTC v. Rockefeller, 591 F.2d 182, 188 (2d Cir. 1979)
(finding that a subpoena could be ‘‘necessary’’ to an FTC
15
investigation even though the agency had not pursued ‘‘rea-
sonably available alternatives’’)). Context is relevant to the
interpretation of the term ‘‘necessary.’’ The ‘‘meaning varies
with context,’’ Thomas, 838 F.2d at 1237, and a dictionary
definition by no means tells us what ‘‘necessary’’ means in
every statutory context.
We do not read Iowa Utilities Board or GTE Service Corp.
to suggest that ‘‘necessary’’ has precisely the same meaning
in every statutory context, or that context is irrelevant to the
meaning of ‘‘necessary.’’ It is also noteworthy that neither
Iowa Utilities Board nor GTE Service Corp. involved the
application of the forbearance provision of the 1996 Act.
Rather, those cases involved disputes between LECs and new
carriers seeking market access. The 1996 Act fundamentally
restructures local telephone markets, ending the monopolies
that States historically granted to LECs and subjecting in-
cumbent LECs to a host of duties intended to facilitate
market entry, including the obligation under 47 U.S.C.
§ 251(c) to share their networks with competitors. A re-
questing carrier can obtain such shared access by purchasing
local telephone services at wholesale rates for resale to end
users, by leasing elements of the incumbent’s network ‘‘on an
unbundled basis,’’ and by interconnecting its own facilities
with the incumbent’s network.
In Iowa Utilities Board, the Supreme Court held that the
FCC did not adequately consider the ‘‘necessary and impair’’
standard under § 251(d)(2) when it gave requesting carriers
blanket access to incumbent carriers’ network elements. The
FCC’s rule implementing § 251(d)(2) implicitly regarded the
‘‘necessary’’ standard as having been met regardless of
whether the requesting carriers could obtain the disputed
proprietary elements from a source other than the incumbent,
and it regarded the ‘‘impairment’’ standard as having been
met if an incumbent’s failure to provide access to a network
element would decrease the quality, or increase the cost, of
the service a requesting carrier seeks to offer, compared with
providing that service over other unbundled elements in the
incumbent LEC’s network. The Court held that the FCC
could not, consistent with the statute, blind itself to the
16
availability of elements outside the incumbent’s network in
implementing the ‘‘necessary and impair’’ standard. The
Court also held that the FCC’s assumption that any increase
in cost (or decrease in quality) imposed by denial of a network
element renders access to that element ‘‘necessary,’’ and
causes the failure to provide that element to ‘‘impair’’ the
entrant’s ability to furnish its desired services, was simply not
in accord with the ordinary and fair meaning of those terms.
Rather, the Court held, § 251(d)(2) requires the FCC to
determine on a rational basis which network elements must
be made available, taking into account the 1996 Act’s objec-
tives and giving some substance to the ‘‘necessary’’ and
‘‘impair’’ requirements. Similarly, in GTE Service Corp., the
court was concerned that a ‘‘broad[ ] construction of ‘neces-
sary’ under § 251(c)(6) might result in an unnecessary taking
of private property.’’ 205 F.3d at 423 (emphasis in original).
We face no such concerns in this case. This case does not
involve a dispute between incumbent LECs and their compet-
itors over entry into local markets. Nor does it involve a
challenge to an FCC rule that allegedly and impermissibly
favors competitors at the expense of LECs. Rather, what is
at issue here is a Commission denial of a request that it
forebear from enforcing a rule that petitioner claims is not
necessary for the protection of consumers.
In the instant forbearance context, application of petition-
ers’ definition of ‘‘necessary’’ would lead to an absurd result,
because it is difficult to imagine a regulation whose enforce-
ment is absolutely required or indispensable to protect con-
sumers. Indeed, when counsel for petitioners was questioned
about this, he could not give a viable example of a ‘‘necessary’’
regulation. None. In the forbearance context, we think that
it would defy common sense to adopt a construction of
‘‘necessary’’ that results in a criterion that can never be met.
What would follow is that every regulation would, strictly
speaking, be ‘‘not necessary for the protection of consumers.’’
The second prong would be a nullity. The Commission
always would be required to forbear from enforcement (pro-
vided that the other two prongs of § 10(a) are satisfied).
17
Adopting petitioners’ rigid construction of ‘‘necessary’’ in
the forbearance context would result in a further absurdity.
Under petitioners’ view, the FCC, which is permitted to
promulgate regulations which are subject to limited review
under an arbitrary and capricious standard, could be re-
quired, the very next day, to forbear from enforcement of the
same regulations, because the unattainable criterion of ‘‘nec-
essary’’ cannot be met. In fact, under petitioners’ view of
§ 10(a), the Commission must also forbear from enforcement
of all statutory provisions (not only agency regulations) that
are not ‘‘absolutely required’’ or ‘‘indispensable.’’ We can
find no evidence that this is what Congress intended when it
enacted § 10(a), especially when petitioners’ definition of
‘‘necessary’’ admits of no obvious applications.
This context informs our view of the term ‘‘necessary’’ here.
In this context, we cannot conclude that, in using the term in
the forbearance statute, Congress has ‘‘directly spoken to the
precise question at issue.’’ Chevron, 467 U.S. at 842. Peti-
tioners cannot prevail under Chevron Step One because the
meaning of the term in this statutory context is certainly not
plain in the way that petitioners contend. Cf. United States
v. Consumer Health Servs. of Am., 108 F.3d 390, 396 (D.C.
Cir. 1997) (finding that it was ‘‘not entirely clear what Con-
gress meant by ‘necessary’’’ in 42 U.S.C. § 1395g(a), and
turning to Chevron Step Two). Congress did not speak
clearly by using the term ‘‘necessary’’ in the forbearance
statute. Thus, we cannot conclude that ‘‘necessary’’ clearly
means ‘‘absolutely required’’ or ‘‘indispensable.’’
Nor can petitioners prevail under Chevron Step Two. On
the record at hand, and in light of the deference owed to the
agency under Chevron Step Two, we find the Commission’s
interpretation of ‘‘necessary’’ eminently reasonable. In the
forbearance context, for the reasons already stated, it is
reasonable to construe ‘‘necessary’’ as referring to the exis-
tence of a strong connection between what the agency has
done by way of regulation and what the agency permissibly
sought to achieve with the disputed regulation. In other
words, the number portability rules are required to achieve
the desired goal of consumer protection. That is essentially
18
the definition of ‘‘necessary’’ that the Commission embraced
and applied in its Order. We therefore find that deference to
the agency’s reasonable interpretation under Chevron Step
Two is appropriate.
Under this reasonable interpretation of ‘‘necessary,’’ the
Commission concluded that the second prong of § 10(a), 47
U.S.C. § 160(a) (‘‘enforcement TTT is not necessary for the
protection of consumers’’), was not satisfied, and that forbear-
ance from the Commission’s number portability rules was
therefore not justified. We find that this conclusion also
satisfies arbitrary and capricious review. Evidence that the
rates of switching between wireless carriers are high even
without number portability does not demonstrate that num-
ber portability is not necessary for the protection of consum-
ers. On the record before the agency, it was reasonable for
the FCC to conclude that wireless consumers would switch
carriers at even higher rates if they could keep their phone
numbers. The current high switching rate does no more than
establish that some consumers are willing to pay the addition-
al costs associated with changing numbers in order to change
service providers. See Respondent’s Br. 26.
The simple truth is that having to change phone numbers
presents a barrier to switching carriers, even if not a total
barrier, since consumers cannot compare and choose between
various service plans and options as efficiently. As the
Commission reasoned, consumers ‘‘will find themselves forced
to stay with carriers with whom they may be dissatisfied
because the cost of giving up their wireless phone number in
order to move to another carrier is too high.’’ Order, 17
F.C.C.R. at 14,980.
Petitioners also contend that the word ‘‘protect’’ in the
second prong of § 10(a) should be given a strict interpreta-
tion, to mean ‘‘prevent injury, damage, or loss’’ rather than
‘‘benefit’’ or ‘‘enhance.’’ Petitioners’ Br. 26-28. We do not
take this argument seriously, and thus do not dwell on it,
because it is obvious that any regulation that frees consumers
from staying with carriers with whom they are dissatisfied
affords them protection.
19
Finally, petitioners make much of the so-called inconsisten-
cy between the Order under review and the Commission’s
1999 Temporary Forbearance Order, 14 F.C.C.R. 3092, in
which the Commission found the three prongs of § 10(a)
satisfied and granted temporary forbearance from enforce-
ment until November 24, 2002. In the forbearance decision
at issue here, the Commission examined new record evidence
and reached a reasonable conclusion that § 10(a) was not
satisfied for the purpose of permanent forbearance. The two
orders are perfectly consistent in rejecting permanent for-
bearance. The Commission’s 1999 Temporary Forbearance
Order rejected the arguments for permanent forbearance
based on the Commission’s projection that wireless phones
increasingly would become potential substitutes for wireline
phones, and that consumers accordingly would become more
invested in keeping their wireless phone numbers. Three
years later, the Commission’s Order confirmed that the pre-
dicted trend in fact came to pass and would continue, and
again rejected permanent forbearance. There is no inconsis-
tency between the two orders.
The Commission reasonably concluded that the second
prong of § 10(a), 47 U.S.C. § 160(a), was not satisfied, such
that permanent forbearance from the Commission’s number
portability rules was not justified.
III. Conclusion
For the foregoing reasons, we dismiss the petition for
review with respect to the Commission’s statutory authority,
and deny the petition for review with respect to the Commis-
sion’s forbearance decision.