United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 8, 2008 Decided July 8, 2008
No. 07-1475
CTIA - THE WIRELESS ASSOCIATION,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS
T-MOBILE USA, INC., ET AL.,
INTERVENORS
Consolidated with 07-1477 and 07-1480
On Petitions for Review of
Orders of the Federal Communications Commission
Helgi C. Walker argued the cause for petitioners CTIA -
The Wireless Association and Sprint Nextel Corporation. With
her on the briefs were Thomas M. Messner and Christopher J.
Wright.
Matthew A. Brill argued the cause for petitioner USA
Mobility, Inc. With him on the briefs were Barry J. Blonien and
Erica R. Goldberg.
2
Michael T. Fitch, Lynn R. Charytan, Samir C. Jain,
Craig E. Gilmore, Travis E. Litman, Carl W. Northrop, Thomas
J. Sugrue, Sara Leibman, T. Scott Thompson, and Christopher
A. Fedeli were on the brief for intervenors in support of
petitioners.
Nandan M. Joshi, Counsel, Federal Communications
Commission, argued the cause for respondents. With him on the
briefs were Thomas O. Barnett, Assistant Attorney General,
Robert B. Nicholson and James J. Fredricks, Attorneys,
Matthew B. Berry, General Counsel, Federal Communications
Commission, Joseph R. Palmore, Deputy General Counsel,
Daniel M. Armstrong, Associate General Counsel, and Richard
K. Welch, Acting Deputy Associate General Counsel.
Before: SENTELLE, Chief Judge, and RANDOLPH and
ROGERS, Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
Concurring opinion filed by Circuit Judge ROGERS.
RANDOLPH, Circuit Judge: Hurricane Katrina exposed
several weaknesses in the Gulf Coast’s communications
infrastructure, among which was the loss of power for critical
communications networks. To address this problem, the Federal
Communications Commission promulgated a rule requiring
commercial mobile radio service (CMRS) providers1 to maintain
a minimum amount of emergency backup power for “all assets
necessary to maintain communications that are normally
powered from local commercial power.” In the Matter of
Recommendations of the Independent Panel Reviewing the
1
The Commission’s rules include cellular and paging
service providers as CMRS providers. See 47 C.F.R. § 20.9(a).
3
Impact of Hurricane Katrina on Communications Networks, 22
F.C.C. Rcd 18,013, 18,035 (2007) (“Reconsideration Order”).
The rule thus requires a backup power source (e.g., batteries or
generators) for every cell site and paging transmitter unless an
exemption is met.2 Petitioners, who are wireless and paging
service providers, oppose the backup power rule on the grounds
that the Commission adopted it without statutory authority, that
the parties lacked notice, and that the Commission acted
arbitrarily and capriciously. We decline to address these
contentions now because the case is not ripe for review.
The backup power rule’s provisions do not take effect
until the Office of Management and Budget (OMB) approves
the information collection provisions contained in the rule’s
extensive reporting mechanism. See id. at 18,025, 18,026.
Providers must submit, within six months of the effective date
of the rule, lists of: each asset that is in compliance with the
backup power requirement; each asset that is not in compliance
but comes within one of the three exemptions; and each asset
that is not in compliance and not exempted. Id. at 18,024–25.
For a noncompliant asset that meets an exemption, providers
“must include a description of facts supporting the basis of the
. . . claim of preclusion from compliance.” Id. at 18,025. For a
noncompliant asset that does not meet an exemption, providers
must modify the asset or file an “emergency backup power
compliance plan” demonstrating how the “provider intends to
2
The Commission provided exemptions for when
compliance with the backup power rule “is precluded by: (1)
federal, state, tribal or local law; (2) risk to safety of life or
health; or (3) private legal obligation or agreement.” 22 F.C.C.
Rcd at 18,024. For assets falling outside these specific
exemptions, a provider can submit an alternative compliance
plan that “ensure[s] backup power is available for 100 percent
of the area covered by any non-compliant asset.” Id. at 18,025.
4
provide emergency backup power to 100 percent of the area
covered by [the] non-compliant asset.” Id. This information is
crucial to the operation of the backup power rule. Without it,
the Commission would have difficulty enforcing the rule, and
the exemptions and alternative compliance plan might be
unworkable.
The need for OMB approval for information collections
derives from the Paperwork Reduction Act (“the Act”), 44
U.S.C. § 3501 et seq. Whenever an agency seeks to collect
information from the public, it must submit the collection plan
to OMB, which can approve, disapprove, or “instruct the agency
to make substantive or material change.” 44 U.S.C.
§ 3507(e)(1). OMB must “provide at least 30 days for public
comment prior to making a decision.” § 3507(b). Though the
Act only requires OMB approval of collections of information,
the Commission ordered that the entire backup power rule,
including the substantive minimum power requirements, “shall
be effective on the date of Federal Register notice announcing
OMB approval of the information collection.” Reconsideration
Order, 22 F.C.C. Rcd at 18,022. The Commission has not yet
submitted the rule’s information collection provisions to OMB
for review, and thus OMB has not reached any decision.
Because none of the backup power rule’s requirements
takes effect until OMB approves the information collections, the
case is unripe and we shall hold it in abeyance pending OMB’s
decision. The “basic rationale” of the ripeness doctrine “is to
prevent the courts, through avoidance of premature adjudication,
from entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from
judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way by the
challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136,
148–49 (1967). The inquiry involves “a two-part analysis,
5
evaluating ‘[1] the fitness of the issues for judicial decision and
[2] the hardship to the parties of withholding court
consideration.’” Nat’l Treasury Employees Union v. United
States, 101 F.3d 1423, 1431 (D.C. Cir. 1996) (quoting Abbott
Labs., 387 U.S. at 149).
The fitness of an issue for review depends, among other
things, “on whether it is ‘purely legal, whether consideration of
the issue would benefit from a more concrete setting, and
whether the agency’s action is sufficiently final.’” Atl. States
Legal Found., Inc. v. EPA, 325 F.3d 281, 284 (D.C. Cir. 2003)
(quoting Clean Air Implementation Project v. EPA, 150 F.3d
1200, 1204 (D.C. Cir. 1998)). Though claims that the rule was
adopted without statutory authority and is arbitrary and
capricious “present purely legal issues[,] . . . even purely legal
issues may be unfit for review.” Id. Importantly, a “claim is not
ripe for adjudication if it rests upon ‘contingent future events
that may not occur as anticipated, or indeed may not occur at
all.’” Texas v. United States, 523 U.S. 296, 300 (1998) (quoting
Thomas v. Union Carbide Agric. Prods., 473 U.S. 568, 580–81
(1985)).
These considerations weigh heavily in favor of holding
the case in abeyance. We did so in analogous circumstances in
Devia v. NRC, 492 F.3d 421 (D.C. Cir. 2007). That case arose
from a company’s desire to build and operate a spent nuclear
fuel storage facility on land belonging to an Indian tribe. Id. at
422. The company needed a license from the Nuclear
Regulatory Commission (NRC), a right-of-way from the Bureau
of Land Management (BLM), and a lease from the Bureau of
Indian Affairs (BIA). Id. After NRC granted the license, an
association of tribal members petitioned for review in this court.
Id. at 423. Later BLM and BIA denied the company’s
applications for the right-of-way and lease. Id. at 423. We
concluded that the petition for review of NRC’s decision was
6
not ripe for adjudication because the “denials of approval by the
BLM and BIA appear to block the activity” of which the
petitioners complained. Id. at 425. It was possible that the
company could successfully petition for review of the BLM and
BIA decisions or that the agencies could reverse themselves,
thus clearing the way for construction of the facility, but those
possibilities were too speculative to render the case ripe for
review. Id. at 425–26. We made clear that the “question of
fitness does not pivot solely on whether a court is capable of
resolving a claim intelligently, but also involves an assessment
of whether it is appropriate for the court to undertake the risk.”
Id. at 424 (citation omitted).
As in Devia, the effects of the Commission’s action are
contingent upon future action by another administrative agency.
Though the other agencies in Devia had already denied
approval, the court indicated that even “await[ing] uncertain
approvals from other agencies” counsels against justiciability.
Id. at 426. OMB must evaluate the information collections, and
its disapproval would have a direct effect on the backup power
rule. Cf. Atl. States Legal Found., 325 F.3d at 285 (“[B]efore
the regulations have any effect, . . . New York must act and in
acting might alter EPA’s product.”).
As an independent regulatory agency, the Commission
does have the power to overrule OMB, see 44 U.S.C.
§ 3507(f)(1), but that contingency cannot render this case
justiciable.3 Cf. Am. Petroleum Inst. v. EPA, 906 F.2d 729,
740–41 (D.C. Cir. 1990). The Commission might take that
course and then again it might not. If OMB disapproves and the
Commission fails to exercise its authority under § 3507(f)(1),
any opinion on the merits would have addressed questions that
3
The Commission has not represented that it will exercise
this authority.
7
have become moot. See Devia, 492 F.3d at 426. If the
Commission only overrules OMB in part, for instance declining
to reinstate one of the exemptions, that would undoubtedly
impact our review of whether the rule is arbitrary and
capricious. OMB’s action and the Commission’s response are
entirely speculative at this point. Something more must happen
before the rule’s “effects [are] felt in a concrete way by the
challenging parties.” Abbott Labs., 387 U.S. at 148–49. This
case exemplifies “the usually unspoken element of the rationale
underlying the ripeness doctrine: If we do not decide it now, we
may never need to.” Nat’l Treasury Employees Union, 101 F.3d
at 1431.
As to the second prong of the ripeness test, we see little
hardship to the parties in not deciding the case now. Petitioners
note “the burden of extended uncertainty, as well as the cost of
committing resources to compliance or preparation for
compliance for an indefinite period of time.” Pet’rs Supp. Br.
13. But “mere uncertainty as to the validity of a legal rul[ing]”
does not “constitute[] a hardship for purposes of the ripeness
analysis.” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior,
538 U.S. 803, 811 (2003). Petitioners’ concern over preparation
costs is more substantial – the Commission partially justified the
time-frame for complying with the rule on grounds that the
OMB process “giv[es] providers additional time to come into
compliance,” suggesting that providers should begin preparing
before the rule takes effect. Reconsideration Order, 22 F.C.C.
Rcd at 18,026. Nonetheless, until the rule does take effect,
petitioners “are ‘not required to engage in, or to refrain from,
any conduct’ during the time the case is held in abeyance.”
Devia, 492 F.3d at 427 (quoting Atl. States Legal Found., 325
F.3d at 285). Because petitioners are not required to do
anything to comply with the backup power rule while this case
is held in abeyance, the delay they cite does not overcome the
8
judiciary’s “theoretical role as the governmental branch of last
resort.” Nat’l Treasury Employees Union, 101 F.3d at 1431.
We recognize that parties still must petition for judicial
review of the Commission’s final orders within 60 days to
preserve their rights, even though the case may be nonjusticiable
due to pending OMB review. See 28 U.S.C. § 2344. We are not
concerned that the Commission will use this holding to delay
unnecessarily judicial review of its rules going forward. An
agency has no interest in putting off review in these
circumstances; its desire is to have its regulations take effect.
And we have long presumed that executive agency officials will
discharge their duties in good faith. See Sprint Nextel Corp. v.
FCC, 508 F.3d 1129, 1133 (D.C. Cir. 2007) (citing United
States v. Morgan, 313 U.S. 409, 421 (1941)).
We will therefore hold this case in abeyance pending
OMB’s action.
So ordered.
ROGERS, Circuit Judge, concurring: While I agree that the
petition for review of the Commission’s emergency/backup
power rule is unripe, I write to emphasize that neither this
court’s interim stay of the rule nor the Paperwork Reduction Act
(“PRA”), 44 U.S.C. § 3501 et seq., justified the postponement
of PRA review of the rule’s information collection provisions by
the Office of Management and Budget (“OMB”). This
misguided agency decision necessitates a holding that
potentially complicates and delays review under the Hobbs Act,
28 U.S.C. § 2344.
A brief history of the rule illustrates the odd posture of this
case, an approach whose eventual results include delay of
potentially life-saving regulations and, ironically, significant
additional paperwork all around. On May 31, 2007, the Federal
Communications Commission adopted the emergency/backup
power rule, 47 C.F.R. §§ 12.1 & 12.2. In the Matter of
Recommendations of the Independent Panel Reviewing Impact
of Hurricane Katrina on Communications Networks, 22 F.C.C.
Rcd. 10,541, 10,587-88 (released June 8, 2007). In adopting the
rule the Commission explained that it was implementing
recommendations in a study of communications problems that
endangered public safety and health during Hurricane Katrina.
See id. at 10,541. The rule set “requirements that will help
ensure the resiliency, redundancy and reliability of
communications systems, particularly 911 and E911 networks
and/or systems,” id. at 10,587 and these sections were to take
effect August 10, 2007, see Recommendations of the
Independent Panel, Final Rule, 72 Fed. Reg. 37,655 (2007).
Upon reconsideration, the Commission modified section
12.2 to include, among other things, the filing of inventory
reports and any claims of preclusion from compliance within six
months of the date of this requirement. In the Matter of
Recommendations of the Independent Panel Reviewing Impact
of Hurricane Katrina on Communications Networks, 22 F.C.C.
2
Rcd. 18,013, 18,035-38 (Oct. 2, 2007) (“Order on
Reconsideration”). Notwithstanding the emergency/backup
power rule’s public safety and health rationale, and the
Commission’s acknowledgment that in emergencies “the cost of
failing to have [backup] power may be measured in lives lost,”
id. at 18,027, the Commission also ordered that all provisions of
the rule, including section 12.2 “shall be effective on the date of
the Federal Register notice announcing OMB approval of the
information collection now contained in that rule,” id. at 18,032.
The OMB has yet to begin review of the emergency/backup
power rule. This is because the Commission deferred to OMB’s
request not to submit the rule for review. In its supplemental
brief of May 19, 2008 the Commission states that “after this
Court issued its February 28, 2008 order in this case staying the
effective date of the rule pending judicial review, OMB
informally informed FCC staff that it would prefer that the
Commission not initiate the PRA process while the stay
remained in effect.” FCC Supplemental Br. at 5 (May 19,
2008).1 No further explanation is offered. In the period
between filing its responsive and supplemental briefs, however,
the Commission appears to have altered its view concerning the
significance of the information gathering provisions. Although
the petitioners do not challenge the information and record-
keeping provisions of the rule, and the Commission never
suggested in its responsive brief that these provisions were
1
By contrast, the Commission’s responsive brief of Mar. 24,
2008 stated that submission of the rule to OMB was “expected . . .
shortly.” Resp. Br. at 18. Since the Commission’s supplemental brief
was filed, the court has not been notified of any change in the status
of the rule.
3
inseparable from the backup requirement itself,2 the
Commission, in responding to the court’s sua sponte concern
about justiciability, see Order of May 9, 2008, has adopted the
view that the reporting requirements are so integral a part of the
rule that judicial consideration of the petition for review is
premature. FCC Supplemental Br. at 8. See Order on
Reconsideration, 22 F.C.C. Rcd. at 18,024-27; cf. Op. at 3-4.
Given the importance of the emergency/backup power rule
to human life, public safety and health, the initial postponement
of OMB review can only be explained by assuming that the
court’s interim stay of the rule or the PRA were incorrectly
viewed as providing a basis for delaying mandated agency
review of regulations. In issuing a stay, the court is required to
determine whether there is a substantial likelihood that the
petitioner would succeed in its challenges to the rule, and
whether a stay would be in the public interest and not cause
undue prejudice to any party. See Wash. Metro. Area Transit
Comm. v. Holiday Tours Inc., 559 F.2d 841, 843 (D.C. Cir.
1977). However, this analysis does not consider, and should not
be used as a proxy for, the question of whether an agency rule
is so obviously unlawful that it is not worthwhile to carry out
statutory procedures prescribed by the PRA. Regardless of
which party might prevail upon appeal, the Commission
2
Even in its supplemental brief the Commission does no
more than repeat the provisions of the rule to the effect that it will not
become effective until approved by OMB or reaffirmed by the
Commission over an OMB disapproval pursuant to the PRA, 44
U.S.C. § 3507(f)(1) . FCC Supp. Br. at 9. During oral argument on
May 8, 2008, Commission counsel stated in response to the court’s
sua sponte concern about ripeness only that “the FCC seemed to
indicate in its reconsideration order that . . . th[e] [information
gathering provision] is not severable.” Oral Arg. Tr. at 21(emphasis
added).
4
determined that the emergency/backup power rule was
necessary to protect public safety and health and the petitioners
have a right to judicial review pursuant to the Hobbs Act.
Similarly, nothing in the PRA suggests that it was intended to
interfere with the Commission’s rulemaking determinations, see
44 U.S.C. § 3507 (f)(1), or the Hobbs Act.3 See generally S.
COMM. ON GOVERNMENTAL AFFAIRS, PAPERWORK REDUCTION
ACT OF 1980, S. REP. NO. 96-930 (1980), reprinted in 1980
U.S.C.C.A.N. 6241.
Notwithstanding the inappropriate postponement of OMB
review, the court correctly accepts that the petition for review is
not prudentially ripe because OMB has not reached any decision
regarding the rule’s information gathering requirements, Op. at
4-5; see Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538
U.S. 803, 808 (2003); Town of Stratford v. FAA, 285 F.3d 84, 88
(D.C. Cir. 2002), and the Commission has not advised that it
would overrule any disapproval by OMB. The court relies on
Devia v. NRC, 492 F.3d 421 (D.C. Cir. 2007), in concluding that
the rule should be held in abeyance pending OMB review. Op.
at 5-6. But the court’s necessary response to the delay in
submission of the rule to OMB is not costless: In relying on the
dictum in Devia, 492 F.3d at 424; Op. at 6, the court
acknowledges the potential of a conundrum under the Hobbs
Act, 28 U.S.C. § 2344, Op. at 8, for this court has held that the
finality of a rule published in the federal register is not affected
by the fact that the agency has not received OMB approval at
3
To avoid “uncertainty and gamesmanship in the process by
which FCC orders are appealed,” Petrs’ Supp. Br. of May 19, 2008 at
4, it may be the better part of discretion for the court, sua sponte, to
state in its stay orders that the stay of a rule shall not affect prompt
submission to OMB for PRA review. Otherwise delayed submissions
would produce “anomalous results . . . contrary to the court’s settled
construction of the Hobbs Act,” Petrs’ Supp. Br. at 4.
5
time of promulgation, Career Coll. Ass’n v. Reilly, 74 F.3d
1265, 1269 (D.C. Cir. 1996).4 It also leaves uncertain the
propriety of the interim stay itself.
As a result of today’s holding that the petition for review is
prudentially unripe, the Commission should promptly submit the
final rule for OMB review, see Op. at 8, as its apparent
justifications for not doing so are not persuasive. More broadly,
the court’s holding should serve as a warning against using
unrelated interim stays to justify delay in mandated interagency
reviews.
4
Unlike the emergency/back-up power rule, which as a whole
does not become effective until after OMB review, only the
information collection provisions of the rule in Career College were
subject to OMB approval under the PRA. 74 F.3d at 1267-68.