SOUTHWESTERN BELL TELEPHONE CO. v. F.C.C.

Nos. 91-1416, 91-1417, 91-1440, 91-1446, 91-1447, 91-1453, 91-1454 and 93-1360.

19 F.3d 1475 (1994)

SOUTHWESTERN BELL TELEPHONE COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, EDS Corporation, Ameritech Operating Companies, Metropolitan Fiber Systems, Pacific Bell and Nevada Bell, WilTel, Inc., Bell Atlantic Telephone Companies, NYNEX, MCI Telecommunications Corporation, Intervenors. SOUTHWESTERN BELL TELEPHONE COMPANY, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, EDS Corporation, Metropolitan Fiber Systems, Pacific Bell and Nevada Bell, WilTel, Inc., Bell Atlantic Telephone Companies, NYNEX, MCI Telecommunications Corporation, Intervenors. U S WEST COMMUNICATIONS, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, Bell Atlantic Telephone Companies, NYNEX, Ameritech Operating Companies, Southwestern Bell Telephone Company, WilTel, Inc., Pacific Bell and Nevada Bell, MCI Telecommunications Corporation, Metropolitan Fiber Systems, Inc., Intervenors. (Two Cases) SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY and South Central Bell Telephone Company, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, NYNEX, Ameritech Operating Companies, Southwestern Bell Telephone Company, WilTel, Inc., MCI Telecommunications Corporation, Pacific Bell and Nevada Bell, Metropolitan Fiber Systems, Inc., Bell Atlantic Operating Companies, Intervenors. (Two Cases) The BELL ATLANTIC TELEPHONE COMPANIES, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, NYNEX, Ameritech Operating Companies, Southwestern Bell Telephone Company, WilTel, Inc., MCI Telecommunications Corporation, Pacific Bell and Nevada Bell, Metropolitan Fiber Systems, Inc., Intervenors. (Two Cases) U S WEST COMMUNICATIONS, INC., BellSouth Telecommunications, Inc., Bell Atlantic Telephone Companies, Southwestern Bell Telephone Company, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, WilTel, Inc., EDS Corporation, International Business Machines Corporation, Intervenors.

United States Court of Appeals, District of Columbia Circuit.

Decided April 5, 1994.


Attorney(s) appearing for the Case

Robert B. McKenna, Denver, CO, argued the cause, for petitioners. With him on the briefs were Robert M. Lynch, Richard C. Hartgrove, Robert J. Gryzmala, St. Louis, MO, M. Robert Sutherland, Atlanta, GA, and Lawrence W. Katz, Washington, DC. Leo J. Bub, San Antonio, TX, entered an appearance in No. 91-1416. William B. Barfield and R. Frost Branon, Jr., Atlanta, GA, entered appearances in Nos. 91-1446 and 91-1447. John Thorne, Michael D. Lowe, Washington, DC, J. Manning Lee, McLean, VA, Mark J. Mathis, Philadelphia, PA, James R. Young and Lawrence W. Katz, Washington, DC, entered appearances in Nos. 91-1453 and 91-1454. Durward D. Dupre, St. Louis, MO, entered an appearance in No. 93-1360.

Laurence N. Bourne, Counsel, F.C.C., Washington, DC, argued the cause, for respondents. With him on the brief was Renee Licht, Acting General Counsel, F.C.C., Daniel M. Armstrong, Associate General Counsel, F.C.C., John E. Ingle, Deputy Associate General Counsel, F.C.C., Anne K. Bingaman, Asst. Atty. Gen., U.S. Dept. of Justice, Robert B. Nicholson and Robert J. Wiggers, Attorneys, U.S. Dept. of Justice, Washington, DC.

On the joint brief for intervenors Electronic Data Systems Corp., MCI Telecommunications Corp., and WilTel, Inc., were Randolph J. May, Richard S. Whitt, Frank W. Krogh, Donald J. Elardo, Eric Fishman and William L. Fishman, Washington, DC. Floyd S. Keene, Milwaukee, WI, Alfred Winchell Whittaker, Andrew D. Lipman, Washington, DC, James P. Tuthill, Margaret deB. Brown, John W. Bogy, Stanley J. Moore, San Francisco, CA, John Thorne, Michael D. Lowe, Washington, DC, J. Manning Lee, McLean, VA, Mark J. Mathis, Philadelphia, PA, Donald W. Boecke, William T. Lake, J. Roger Wollenberg, Washington, DC, entered appearances.

Before: MIKVA, Chief Judge, WALD and EDWARDS, Circuit Judges.


Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

Petitioners Southwestern Bell Telephone Company, US West Communications, Inc., BellSouth Telecommunications, Inc., and the Bell Atlantic Telephone Companies challenge a series of Federal Communications Commission ("FCC" or "Commission") orders which prescribed rates for so-called "dark fiber" communications services, directed petitioners to provide these services as a general offering...

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