MCI TELECOMMUNICATIONS CORP. v. F.C.C.

Nos. 89-1382, 89-1384, 89-1390, 89-1695 and 89-1733.

917 F.2d 30 (1990)

MCI TELECOMMUNICATIONS CORPORATION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Telephone and Telegraph Company, Mountain States Telephone and Telegraph Company, US Sprint Communications Company Limited Partnership, ITT Communications Services, Inc., Competitive Telecommunications Association, Independent Data Communications Manufacturers Association, Inc., Southwestern Bell Telephone Company, Ad Hoc Telecommunications Users Committee, Intervenors. US SPRINT COMMUNICATIONS COMPANY LIMITED PARTNERSHIP, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, American Telephone and Telegraph Company, MCI Telecommunications Corporation, Mountain States Telephone and Telegraph Company, et al., ITT Communications Services, Inc., Competitive Telecommunications Association, Independent Data Communications Manufacturers Association, Inc., Southwestern Bell Telephone Company, Ad Hoc Telecommunications Users Committee, Intervenors. INDEPENDENT DATA COMMUNICATIONS MANUFACTURERS ASSOCIATION, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, US Sprint Communications Company Limited Partnership, MCI Telecommunications Corporation, Ad Hoc Telecommunications Users Committee, Mountain States Telephone and Telegraph Company, et al., ITT Communications Services, Inc., Southwestern Bell Telephone Company, Competitive Telecommunications Association, American Telephone and Telegraph Company, Intervenors. INDEPENDENT DATA COMMUNICATIONS MANUFACTURERS ASSOCIATION, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, US Sprint Communications Company Limited Partnership, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Inc., Michigan Bell Telephone Company, The Ohio Bell Telephone Company, and Wisconsin Bell, Inc. (Ameritech Operating Companies), MCI Telecommunications Corporation, American Telephone and Telegraph Company, Ad Hoc Telecommunications Users Committee, International Business Machines Corporation, Southwestern Bell Telephone Company, Intervenors. WILLIAMS TELECOMMUNICATIONS GROUP, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Independent Data Communications Manufacturers Association, Inc., Ad Hoc Telecommunications Users Committee, US Sprint Communications Company Limited Partnership, International Business Machines Corporation, American Telephone and Telegraph Company, Southwestern Bell Telephone Company, Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided October 23, 1990.

As Amended October 23, 1990.


Attorney(s) appearing for the Case

Anthony C. Epstein, with whom Chester T. Kamin, Thomas S. Martin, Michael H. Salsbury, Carl S. Nadler, John M. Scorce, and Donald J. Elardo were on the brief, for MCI Telecommunications Corp., petitioner in No. 89-1382, and intervenors in Nos. 89-1384, 89-1390, and 89-1695.

Herbert E. Marks, with whom David Alan Nall was on the brief, for Independent Data Communications Mfrs. Ass'n, Inc., petitioner in Nos. 89-1390 and 89-1695, and intervenors in No. 89-1733.

Leon M. Kestenbaum and H. Richard Juhnke were on the brief for US Sprint Communications Co. Ltd. Partnership, petitioner in No. 89-1384, and intervenors in Nos. 89-1390, 89-1695 and 89-1733. Michael B. Fingerhut also entered an appearance.

William L. Fishman and Eric Fishman were on the brief for petitioner Williams Telecommunications Group, Inc. in No. 89-1733.

John E. Ingle, Deputy Associate Gen. Counsel, with whom Robert L. Pettit, Gen. Counsel, Jane E. Mago and Laurence N. Bourne, Counsel, F.C.C., James F. Rill, Asst. Atty. Gen., Catherine G. O'Sullivan and Robert J. Wiggers, Attys., Dept. of Justice, were on the brief, for respondents in all cases. Daniel M. Armstrong, Atty., F.C.C., also entered an appearance for respondents.

David W. Carpenter, with whom Gene C. Schaerr and Francine J. Berry were on the brief, for intervenor AT & T in Nos. 89-1384, 89-1390, 89-1695 and 89-1733. David J. Lewis, Michael J. Morrissey, and Albert M. Lewis also entered appearances for intervenor.

Genevieve Morelli, W. Theodore Pierson, Jr., and Robert J. Aamoth were on the brief for intervenors Competitive Telecommunications Ass'n and Communications Services, Inc. in No. 89-1384. James M. Smith also entered an appearance for intervenors.

Dana A. Rasmussen and Robert B. McKenna for the Mountain States Telephone and Telegraph Co., et al.; William C. Sullivan, Richard C. Hartgrove, and Joseph E. Cosgrove, Jr. for Southwestern Bell Telephone Co.; Floyd S. Keene and Alfred Winchell Whittaker for Illinois Bell Telephone Co., et al., were on the joint brief for intervenors in Nos. 89-1384, 89-1390, 89-1695 and 89-1733. Patricia J. Nobles also entered an appearance for intervenors.

James S. Blaszak, Patrick J. Whittle, and Kevin S. DiLallo were on the brief for intervenors Ad Hoc Telecommunications Users Committee in Nos. 89-1382, 89-1384, 89-1390, 89-1695 and 89-1733.

W. Theodore Pierson, Jr., James M. Smith, and John A. Ligon entered appearances for intervenor ITT Communications Services, Inc. in Nos. 89-1384 and 89-1390.

J. Roger Wollenberg, William T. Lake, and Carl Willner entered appearances for intervenor Intern. Business Machines Corp. in Nos. 89-1695 and 89-1733.

Before MIKVA, EDWARDS and SILBERMAN, Circuit Judges.


Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

MCI Telecommunications, US Sprint, Williams Telecommunications, and Independent Data Communications Manufacturing Association ("IDCMA") petition for review of an order by the Federal Communications Commission concerning the lawfulness of a tariff filed by AT & T. We grant the petition in part.

I.

This case involves four of AT & T's "Tariff 12" (or "integrated...

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