Qwest Corp. v. Federal Communications Commission ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
August 6, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
QWEST CORPORATION,
Petitioner,
v.
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents.
COMPTEL; XO COMMUNICATIONS,
LLC; CBEYOND, INC; INTEGRA
TELCOM, INC.; TW TELECOM INC;
CAVALIER TELEPHONE LLC;
VERIZON; COVAD No. 10-9543
COMMUNICATIONS COMPANY;
PAETEC HOLDING CORP.; TDS
METROCOM, LLC; U.S.
TELEPACIFIC CORP., d/b/a
TelePacific Communications;
MPOWER COMMUNICATIONS
CORP., d/b/a TelePacific
Communications; NATIONAL
ASSOCIATION OF STATE UTILITY
CONSUMER ADVOCATES; PUBLIC
KNOWLEDGE; AT&T, INC.;
ARIZONA CORPORATION
COMMISSION; AD HOC
TELECOMMUNICATIONS USERS
COMMITTEE; SPRINT NEXTEL
CORPORATION,
Intervenors.
Petition for Review of Order
Of The Federal Communications Commission
(FCC Docket No. 09-135)
Jonathan E. Nuechterlein, Wilmer Cutler Pickering Hale and Dorr LLP,
Washington, D.C. (Heather M. Zachary and Elvis Stumbergs, Wilmer Cutler
Pickering Hale and Dorr LLP, Washington, D.C.; Craig J. Brown, Robert B.
McKenna, and Harisha Bastiampillai, Qwest Corporation, Denver, Colorado, with
him on the briefs) for Petitioner Qwest Corporation.
Richard K. Welch, Acting Associate General Counsel, Federal Communications
Commission (Christine A. Varney, Assistant Attorney General, Katherine B.
Forrest, Deputy Assistant Attorney General, Catherine G. O’Sullivan, Attorney,
and Nancy C. Garrison, Attorney, United States Department of Justice; Austin C.
Schlick, General Counsel, Peter Karanjia, Deputy General Counsel, and Laurence
N. Bourne, Counsel, Federal Communications Commission, with him on the brief)
for Respondent Federal Communications Commission.
Scott H. Angstreich, Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC,
Washington, D.C. (Jeffrey M. Harris, Kellogg, Huber, Hansen, Todd, Evans &
Figel PLLC, Washington, D.C.; Michael E. Glover, Edward Shakin, and
Katharine R. Saunders, Verizon; Peter D. Keisler, C. Frederick Beckner III, and
Brendan J. McMurrer, Sidley Austin LLP; Christopher M. Heiman, Gary L.
Phillips, and Paul K. Mancini, AT&T Inc., with him on the brief) for Intervenors
AT&T Inc. and Verizon.
Christopher J. Wright of Wiltshire & Grannis LLP, Washington, D.C. (Genevieve
Morelli of Kelley Drye & Warren LLP, Washington, D.C.; David P. Murray,
Thomas Jones, and Nirali Patel, Willkie Farr & Gallagher LLP, Washington,
D.C.; Colleen Boothby and Andrew M. Brown, Levine, Blaszak, Block, and
Boothby LLP, Washington, D.C.; Maureen A. Scott, Arizona Corporation
Commission, Phoenix, Arizona; Samuel L. Feder, Jenner & Block, Washington,
D.C.; Mary C. Albert, COMPTEL, Washington, D.C.; Russell M. Blau, Bingham
McCutchen LLP, Washington, D.C.; David C. Bergmann, Office of Ohio
Consumers’ Counsel, Columbus, Ohio; John Bergmayer and Harold Feld, Public
Knowledge, Washington, D.C.; Timothy J. Simeone, Wiltshire & Grannis LLP,
Washington, D.C., with him on the brief) for Intervenors COMPTEL et al.
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Before BRISCOE, Chief Judge, BALDOCK and HOLMES, Circuit Judges.
HOLMES, Circuit Judge.
Petitioner Qwest Corporation (“Qwest”) seeks our review of an order of the
Federal Communications Commission (“Commission”) denying Qwest’s petition
for regulatory forbearance pursuant to 47 U.S.C. § 160(a). Qwest filed a petition
with the Commission in March 2009 seeking relief from certain regulations
pertaining to telecommunications services that it provides in the Phoenix,
Arizona, metropolitan statistical area (“MSA”). The Commission denied the
petition, citing insufficient evidence of sufficiently robust competition that would
preclude Qwest from raising prices, unreasonably discriminating, and harming
consumers. Qwest challenges the Commission’s decision only as it pertains to
Qwest’s mass-market retail services in the Phoenix MSA. For the reasons set
forth below, we deny Qwest’s petition.
I
In the Telecommunications Act of 1996 (“1996 Act”), Congress upended
the existing telecommunications regulatory regime and imposed on the
monopolistic local phone companies (called “local exchange carriers” or “LECs”)
several new requirements designed to enhance competition in the market for local
telephone service. See Qwest Corp. v. Colo. Pub. Utils. Comm’n, 656 F.3d 1093,
1096 (10th Cir. 2011). Foremost among these is the requirement that incumbent
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carriers share their networks with competitors. Because new market entrants
would find it prohibitively costly to replicate the infrastructure necessary to
provide local service, the 1996 Act requires incumbent carriers to provide
competitors with access to existing network elements on an unbundled basis at
“just” and “reasonable” rates. See 47 U.S.C. § 251(c)(3). The Commission is
responsible for determining which unbundled network elements (“UNEs”) an
incumbent LEC must make available to competitors. See id. § 251(d)(2)(B).
A second critical feature of the 1996 Act is section 10, codified at 47
U.S.C. § 160. Because newly competitive conditions could make the
heavy-handed regulation of incumbent carriers obsolete, section 10 provides that
the Commission “shall forbear” from applying certain statutory or regulatory
requirements to an incumbent carrier if it determines that those requirements are
(1) not necessary to ensure just, reasonable, and nondiscriminatory terms of
service, (2) not necessary to protect consumers, and (3) consistent with the public
interest. See 47 U.S.C. § 160(a). A carrier can petition the Commission for
forbearance. Id. § 160(c). The petition “shall be deemed granted if the
Commission does not deny the petition for failure to meet the requirements for
forbearance under subsection (a) . . . within one year.” Id. (emphasis added).
The Commission may extend that one-year deadline by an additional ninety days.
See id.
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The dispute here arises out of a June 2010 order of the Commission
denying Qwest’s petition for forbearance from unbundling obligations and
dominant-carrier regulations pertaining to Qwest’s provision of mass-market
services in the Phoenix MSA. See In the Matter of Petition of Qwest Corporation
for Forbearance Pursuant to 47 U.S.C. § 160(c) in the Phoenix, Arizona
Metropolitan Statistical Area, 25 FCC Rcd. 8622, 8677, ¶ 109 (2010) [hereinafter
Phoenix Order]. Before reviewing that order, however, some additional
background is necessary. In particular, we summarize three prior orders of the
Commission that provide a central backdrop to the issues in this appeal. After
providing key background information, we describe the Phoenix Order and the
Commission’s reasons for denying forbearance to Qwest.
A
In 2004, Qwest filed a petition for forbearance from unbundling
requirements and dominant-carrier regulations in the MSA of Omaha, Nebraska,
where it competes extensively with Cox Communications, a cable provider. In
response to the petition, the Commission found that “sufficient facilities-based
competition . . . exists in certain of Qwest’s Omaha MSA wire center service
areas to justify forbearance.” In the Matter of Petition of Qwest Corporation for
Forbearance Pursuant to 47 U.S.C. § 160(c) in the Omaha Metropolitan
Statistical Area, 20 FCC Rcd. 19,415, 19,447, ¶ 64 (2005) [hereinafter Omaha
Order]. To reach this conclusion, the Commission essentially applied a two-
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prong test. Under the first prong (the “market-share test”), the Commission
assessed the level of retail competition in the Omaha market and found it
“compelling” that Qwest’s market share for retail mass-market customers was
“less than” a specified percentage. 1 Id. at 19,430, ¶ 28; see also id. at 19,448,
¶ 66. Under the second prong (the “coverage test”), the Commission considered
the geographic reach of Cox’s cable network and found that, in certain locations
called “wire centers,” Cox had deployed facilities capable of reaching a very
significant percentage of end-users. See id. at 19,446, ¶ 62. Concluding that Cox
could successfully compete with Qwest, the Commission granted forbearance to
Qwest with respect to those wire centers. See id. at 19,447, ¶ 64.
Then, in 2006, Verizon Telephone Companies (“Verizon”) sought
regulatory forbearance in six MSAs where it provided services as an incumbent
carrier. The Commission denied Verizon’s petition, finding insufficient evidence
of facilities-based competition. See In the Matter of Petitions of the Verizon
Telephone Companies for Forbearance Pursuant to 47 U.S.C. § 160(c) in the
Boston, New York, Philadelphia, Pittsburgh, Providence and Virginia Beach
1
Some documents relevant to our disposition of this case contain
competitively sensitive information (e.g., certain market-share data) that is the
subject of FCC protective orders and not available in publicly accessible
materials. In the publicly accessible versions of these documents, this sensitive
information has been redacted. Although we have been furnished access to this
sensitive information by the parties in sealed filings, we cite in this opinion to
materials that do not contain this information—having no need to do otherwise,
and to facilitate public access. Consequently, in some instances we do not supply
precise figures, as they are redacted in the publicly accessible documents.
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Metropolitan Statistical Areas, 22 FCC Rcd. 21,293, 21,313, ¶ 37 (2007)
[hereinafter Verizon Six-MSA Order]. Specifically, the Commission stated,
“Overall, in all of the 6 MSAs, it appears that cable operators are presently
making some competitive gains against Verizon by providing voice service to
consumers in the residential markets, however competition from cable operators
does not yet present a sufficient basis for relief.” Id. at 21,314 n.116. In
assessing Verizon’s market share in a given MSA, the Commission looked to the
number of Verizon customers as a percentage of both the total number of
customers who subscribed to landline (“wireline”) service in the MSA and the
total number of customers who subscribed exclusively to mobile wireless
service—viz., customers who had “cut the cord.” See id. at 21,323, App. B; see
also id. at 21,308 n.89, ¶ 27 (“[B]ased on the record here, and consistent with
recent precedent, we include [in market-share computations] cut-the-cord wireless
substitution.”). Estimates for the latter group of customers were not available on
an MSA-specific basis, so the Commission utilized a national estimate and
“assume[d]” that 12.8% of households in a given MSA had cut the cord. Id. at
21,323, App. B.
In 2007, Qwest sought regulatory forbearance in four MSAs, including
Phoenix. The Commission acknowledged that the coverage test articulated in the
Omaha Order was met because Cox, Qwest’s primary competitor in Phoenix, was
capable of reaching at least seventy-five percent of end-users with its own
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facilities. See In the Matter of Petitions of Qwest Corporation for Forbearance
Pursuant to 47 U.S.C. § 160(c) in the Denver, Minneapolis-St. Paul, Phoenix, and
Seattle Metropolitan Statistical Areas, 23 FCC Rcd. 11,729, 11,754, ¶ 35 & n.127
(2008) [hereinafter Qwest Four-MSA Order]. Focusing on the market-share test,
the Commission opined:
In calculating market shares, we believe it is appropriate to
include wireless-only households (i.e., residential telephone
customers who have “cut the cord”). In particular, we find that
mobile wireless service should be included in the local services
product market to the extent that it is used as a complete
substitute for all of a consumer’s voice communications needs.
Over the past several years, as wireless substitution rates have
continued to rise, the Commission has begun including such
intermodal substitution in its competitive analyses of the local
services market.
Id. at 11,742, ¶ 19 (footnote omitted).
The Commission nevertheless found that Qwest did not meet the market-
share test. The Commission noted that it had previously sought to determine
whether carriers have “a retail market share of less than 50 percent.” Id. at 11750,
¶ 28. In particular, the Commission found fault with the geographic scope and
the reliability of Qwest’s market-share data. In this regard, the Commission
declined to rely on “national wireless-only household data published by the
Center for Disease Control (CDC) or the more localized information,” id. at
11,743, ¶ 21, which the Commission considered to be uninformative and
unreliable, see id. at 11,744–45, ¶ 21. In sum, the Commission stated, “Qwest
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seeks regulatory relief for particular MSAs based on the specific competitive
conditions in those markets, but the CDC estimates and the record generally do
not contain reliable data of this type.” Id. at 11,744, ¶ 21. More specifically, the
Commission concluded:
Qwest has not sufficiently supported its case for forbearance on
the basis of reliable, geographically-specific data regarding the
measure of wireless substitution in the four MSAs. . . . We
emphasize that petitioners relying on mobile wireless substitution
to support forbearance relief should submit complete and reliable
data that is geographically specific to the areas for which
forbearance is sought.
Id. at 11,745, ¶ 22. Because reliable Phoenix-specific data was not available in
the record, the Commission calculated Qwest’s market share without accounting
for cut-the-cord customers and denied the request for forbearance. See id.Verizon, and then Qwest, appealed the Commission’s orders to the D.C.
Circuit. That court stayed Qwest’s appeal and heard Verizon’s challenge first.
Verizon argued that the Commission’s exclusive reliance on existing market share
to deny forbearance was arbitrary and capricious, and the D.C. Circuit agreed.
See Verizon Tel. Cos. v. FCC, 570 F.3d 294, 302 (D.C. Cir. 2009). The court
noted that the Commission had “zeroed in on Verizon’s market share as the
dispositive factor in its . . . analysis.” Id. at 301. However, in previous orders,
including the Omaha Order, the Commission had considered both actual
competition (as represented by existing market share) and the potential for
competition from other carriers. See id. at 303–04. The court concluded that the
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“per se market share test” applied in the Verizon Six-MSA Order marked an
“unexplained departure from [the Commission’s] precedent.” Id. at 296. The
court remanded the order, directing the Commission either to consider factors
other than a market-share benchmark or to “justify its departure from . . .
precedent.” Id. at 305. Because the Qwest Four-MSA Order employed a similar
analytical approach, the Commission sought and was granted a voluntary remand
of that order. Order, Qwest Corp. v. FCC, No. 08-1257 (D.C. Cir. Aug. 5, 2009).
B
Following remand of the two orders, in March 2009, Qwest filed a petition
for forbearance specific to the Phoenix MSA. In particular, it sought to explain
its low and dwindling retail market share in the Phoenix MSA by providing the
Commission with Phoenix-specific cut-the-cord data. See Joint App. at 261–65
(Petition of Qwest Corp. for Forbearance Pursuant to 47 U.S.C. § 160(c), dated
Mar. 24, 2009). Qwest acknowledged that, in the Qwest Four-MSA Order, the
Commission had rejected its forbearance request in part because of its “lack of
Phoenix-specific wireless substitution data that the Commission deemed reliable.”
Id. at 245. “To address concerns raised by the Commission as to the reliability
and generality of its wireless substitution study,” Qwest retained a consulting firm
“to determine the penetration of wireless-only households in the Phoenix MSA.”
Id. at 261.
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Qwest said that its data indicated that Qwest’s market share, taking cord-
cutting into account, was “substantially less than the 50% market share figure the
Commission has previously relied upon.” Id. at 246; see id. at 262 (noting that
“25 percent of surveyed Phoenix households reported that they are relying upon
wireless services for all of their communication needs”). Highlighting that it
previously had demonstrated in the Qwest Four-MSA Order proceeding that Cox’s
facilities-based coverage in certain areas of Phoenix surpassed seventy-five
percent, Qwest noted “publicly available information” indicated that “Cox
currently appears to offer voice services even more widely in Phoenix” than
Qwest had shown earlier. Id. at 246–47. Thus, Qwest believed it qualified for
forbearance. Significantly, Qwest expressly noted that “[t]he analysis of
competition in [its] Petition is designed to be consistent with the analytical
framework applied by the Commission in Qwest’s earlier request for forbearance
in the Omaha MSA, as well as the analysis applied in the subsequent Verizon Six
MSA and Qwest 4 MSA proceedings.” Id. at 245–46 (footnotes omitted).
However, at that time, the Commission was reconsidering its analytical
framework for forbearance petitions. In August 2009, it sought comments on the
analytical approach that it should employ in resolving the forbearance issues
presented in the remanded orders. In particular, it sought input regarding whether
it should “depart from its recent precedent regarding marketplace analysis in
forbearance petitions,” and concerning the kinds of evidence beyond “market
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share for a particular product market” that are relevant in determining “whether
forbearance from unbundling regulations is warranted.” Wireline Competition
Bureau Seeks Comment on Remands of Verizon 6 MSA Forbearance Order and
Qwest 4 MSA Forbearance Order, 24 FCC Rcd. 10,881, 10,883 (2009)
[hereinafter Remand Comment Request].
Most significantly, in April 2010, the Commission also issued a public
notice requesting additional comments and data specifically related to Qwest’s
request for forbearance in the Phoenix MSA. See Joint App. at 1198 (Request for
Additional Comment and Data Related to Qwest Corporation’s Petition for
Forbearance, dated Apr. 15, 2010). The notice stated that a number of
commenters had urged the Commission to analyze Qwest’s petition in light of
“basic principles of competition policy and the [Federal Trade Commission-
Department of Justice] Horizontal Merger Guidelines” and to “examine Qwest’s
market power in discrete product and geographic markets under the standards of
the FTC-DOJ Horizontal Merger Guidelines and the similar market power
analysis that the Commission has conducted in recent merger decisions.” Id.(quoting Opposition of Integra Telecom, Inc., WC Docket No. 09-135, at 2 (filed
Sep. 21, 2009)) (internal quotation marks omitted).
The Commission specifically noted its interest in determining the proper
analytical approach toward the cut-the-cord phenomenon, seeking comment on
“whether, for mass market consumers, mobile wireless service is in the same
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relevant product market as wireline telephone service.” Id. at 1199. The
Commission observed, “A key element of the [FTC-DOJ Horizontal Merger]
Guidelines, as they relate to product market definition, includes an inquiry into
whether a hypothetical monopoly provider of a service [i.e., wireline voice
service] profitably could impose a ‘small but significant and nontransitory’
increase in the price of such service.” Id. and 1199 n.4. (quoting U.S. Dep’t of
Justice & Fed. Trade Comm’n, Horizontal Merger Guidelines §§ 1.11, 1.12 (Apr.
2, 1992, revised Apr. 8, 1997), available at
http://www.justice.gov/atr/public/guidelines/hmg.htm). “We ask Qwest and other
interested persons,” the notice concluded, “to cite specific evidence in the record
or provide new data as needed to support their pleadings in response to these
issues.” Id. (emphasis added).
Two months later, in June 2010, the Commission denied Qwest’s
forbearance request. See Phoenix Order, 25 FCC Rcd. at 8677, ¶ 109. The
Commission began by repudiating the test it had articulated in the Omaha Order,
finding that test “problematic” and “not adequately justified as a matter of
economics.” Id. at 8633–34, ¶¶ 24, 26. It explained that the first prong, the
market-share test, was unduly narrow in focus and inadequate for assessing a
carrier’s market power—i.e., its ability to maintain prices above competitive
levels. See id. at 8635, ¶ 28. The second prong of the test—the extent of
facilities-based coverage by a single competitor such as Cox—“inappropriately
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assumed that a duopoly always constitutes effective competition.” 2 Id. at
8635–36, ¶ 29. The Commission explained that duopolies pose “significant risks
of collusion and supracompetitive pricing” that are inconsistent with consumer
welfare. Id. at 8636, ¶ 29.
The Commission also found that real-world developments in the Omaha
market following its grant there of forbearance were not consistent with
predictions it had made in the Omaha Order. See id. at 8639–41, ¶ 34. For
example, the Omaha Order predicted that Qwest and other providers in the area
would continue to offer wholesale services at competitive prices despite
elimination of the requirement that Qwest share some of its UNEs. See id. at
8640, ¶ 34. However, the record showed that competition in Omaha had actually
decreased since the order was issued: McLeod USA, “the only other competitor of
significant size” in the Omaha area, had significantly curtailed its operations
there, and Integra, which had been contemplating entry into the Omaha market,
had abandoned its plans to do so after issuance of the order. Id. at 8640–41, ¶ 34.
“With the benefit of hindsight and upon further consideration,” id. at 8633,
¶ 24, the Commission decided to adopt “a more comprehensive analytical
framework” to evaluate the state of competition in telecommunications markets,
id. at 8642, ¶ 37. As the April 2010 public notice had hinted, the Commission
2
A “duopoly” has been defined as “[a] market in which there are only
two sellers of a product.” Black’s Law Dictionary 577 (9th ed. 2009).
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“return[ed] to a traditional market power framework,” an analytical approach
employed in earlier proceedings and embodied in the FTC-DOJ Horizontal
Merger Guidelines. Id. As the Commission explained it, a market-power analysis
begins by delineating the relevant product and geographic markets and identifying
market participants, then examines market-share data, and finally considers
whether the potential for competitive market entry is sufficient to constrain an
incumbent carrier’s ability to maintain prices above competitive levels. See id. at
8646–47, ¶ 42. The Commission found that this analysis was consistent with
approaches used by other U.S. and foreign regulators; was “better suited” for
analyzing competitive conditions in a given market; was more consistent with the
letter and spirit of section 10; and adequately accounted for both actual and
potential competition. Id. at 8642–44, ¶¶ 37–38.
With its new framework in place, the Commission proceeded to analyze
Qwest’s petition. As relevant to this appeal, 3 the Commission began by defining
the relevant product market for Qwest’s mass-market retail services. Id. at 8649,
¶ 51. This included traditional wireline service, as well as facilities-based (but
not over-the-top) VoIP services. 4 Id. at 8650, ¶¶ 53–54.
3
Qwest has challenged only that portion of the Phoenix Order
pertaining to mass-market retail services. Qwest Opening Br. at 4 n.1.
4
Facilities-based voice-over-Internet-protocol (“VoIP”) services are
voice services offered by cable providers over their own networks. By contrast,
over-the-top VoIP providers such as Vonage do not operate their own networks
(continued...)
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The Commission then discussed whether to include mobile wireless
services in the product market. Id. at 8651, ¶ 55. Under the new market-power
framework, inclusion depended on whether the Phoenix residents’ increasing use
of wireless services “materially constrain[ed] the price of residential wireline
voice service[s].” Id. The Commission elaborated on this point:
These two services should be in the same relevant market only if
the prospect of buyer substitution to mobile wireless access
constrains the price of wireline access. The first question before
us then is whether a hypothetical profit-maximizing firm that was
the only present and future seller of wireline local access services
could profitably impose a small but significant and nontransitory
increase in price (SSNIP). In other words, we consider whether
there are a sufficient number of wireline service customers who,
in response to a price increase in wireline local access service,
would stop subscribing to their wireline service and instead rely
exclusively on mobile wireless service, so as to render the price
increase unprofitable.
Id. at 8651–52, ¶ 56 (footnote omitted).
The Commission averred that the issue was “complicated” and “one that is
evolving over time.” Id. at 8651, ¶ 55. On the one hand, the Commission
observed that “[t]he increasing percentage of residential customers that rely solely
on mobile wireless voice service suggests that an increasing percentage of voice
4
(...continued)
and instead require customers to obtain access from an incumbent carrier such as
Qwest. See Phoenix Order, 25 FCC Rcd. at 8650 n.163, ¶ 54. The Commission
has traditionally viewed facilities-based VoIP services as “sufficiently close
substitutes for local service to include them in the relevant product market.” Id.
at 8650, ¶ 54. It has traditionally not viewed over-the-top VoIP the same way.
See id. at 8650, ¶ 54 & n.163.
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customers view wireless and wireline services as close substitutes,” thus
“increasing the likelihood” that wireless services “may materially constrain the
price of residential wireline voice service” and belong in the same product market
as wireline services. Id. On the other hand, it noted that “the Commission, the
DOJ, and foreign regulators have previously found that mobile wireless service
does not constrain the price of wireline service.” Id. at 8652, ¶ 57.
Ultimately, the Commission determined that the record before it did not
allow it to make a finding “for purposes of Qwest’s forbearance request” that
wireless voice services have a material price-constraining effect with respect to
wireline voice services. Id. at 8651, ¶ 55. The Commission elaborated on the
point and, significantly, identified certain deficiencies in Qwest’s evidentiary
showing:
[N]either Qwest nor any other commenter has submitted evidence
that would support a conclusion that mobile wireless service
constrains the price of wireline service. For example, Qwest has
produced no econometric analyses that estimate the cross-
elasticity of demand between mobile wireless and wireline access
services.[ 5] Nor has it produced any evidence that it has reduced
5
The economic concept of elasticity of demand—more specifically,
cross-elasticity of demand—is relevant in determining the appropriate scope of a
product market. See, e.g., Brown Shoe Co. v. United States, 370 U.S. 294, 325
(1962) (“The outer boundaries of a product market are determined by the
reasonable interchangeability of use or the cross-elasticity of demand between the
product itself and substitutes for it.”); United States v. Archer-Daniels-Midland
Co., 866 F.2d 242, 246 (8th Cir. 1988) (“The boundaries of the product market of
a particular product can be determined by the reasonable interchangeability or
cross-elasticity of demand between itself and possible substitutes for it.”). We
(continued...)
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prices for its wireline services or otherwise adjusted its
marketing for wireline service in response to changes in the price
of mobile wireless service. Nor has it produced any marketing
studies that show the extent to which consumers view wireless
and wireline access services as close substitutes.
Id. at 8653–54, ¶ 58 (footnotes omitted). The Commission noted that, although
Qwest had provided evidence concerning the percentage of households in the
Phoenix area that depend exclusively on mobile wireless services, that “cannot
alone establish whether mobile wireless services should be included in the same
relevant product market as residential wireline voice service.” Id. at 8654, ¶ 59.
Notably, the Commission observed, “Knowing the percentage of households that
rely exclusively upon mobile wireless is insufficient to determine whether mobile
5
(...continued)
have had occasion to discuss the concept in a helpful manner: “The basic relevant
product market test is ‘reasonable interchangeability.’ Interchangeability may be
measured by, and is substantially synonymous with, cross-elasticity. A market is
elastic if demand goes down as price goes up. A market is cross-elastic if rising
prices for product A cause consumers to switch to product B.” Telecor
Commc’ns, Inc. v. Sw. Bell Tel. Co., 305 F.3d 1124, 1131 (10th Cir. 2002)
(citations omitted) (quoting SCFC ILC, Inc. v. Visa USA, Inc., 36 F.3d 958, 966
(10th Cir. 1994)); see Westman Comm’n Co. v. Hobart Int’l, Inc., 796 F.2d 1216,
1221 (10th Cir. 1986) (“Defining the relevant market first requires a
determination of the product market. This inquiry necessitates an examination of
which commodities are ‘reasonably interchangeable by consumers for the same
purposes.’” (quoting United States v. E.I. du Pont de Nemours & Co., 351 U.S.
377, 395 (1956))). See generally A Dictionary of Economics 100 (John Black et
al. eds., 3d ed. 2009) (defining “cross-price elasticity of demand” as the “[t]he
ratio between the proportional change in demand for a good and the proportional
change in the price of a different good” (emphases added)). Generally speaking,
as relevant here, the Commission was inquiring into the extent to which the
demand for access to wireless voice services would increase in response to an
increase in the price of wireline voice services.
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wireless services have a price-constraining effect on wireline access services.”
Id. In this regard, it stated that “while . . . the number of customers that rely
solely on mobile wireless service has been growing steadily, we find that other
reasons may explain the growth in the number of wireless-only customers, besides
an increasing cross-elasticity of demand between mobile wireless and wireline
services.” Id.Thus, the Commission excluded mobile wireless services from its analysis.
See id. at 8655, ¶ 60. It noted, however, that it was “mak[ing] no affirmative
finding that mobile wireless services do not currently, or may not soon, belong in
the same product market as residential wireline voice services.” Id. It also
“acknowledge[d] . . . that more consumers may view mobile wireless as a closer
substitute for wireline voice service than in the past.” Id. However, in the
Commission’s view, there was “insufficient data in the record to make such a
determination here.” Id.
Having excluded mobile wireless services, the Commission identified the
market participants in the Phoenix area as Qwest, Cox, and various smaller
competitors that relied predominantly, if not exclusively, on Qwest facilities. Id.
at 8657, ¶¶ 64–67. It found that retail mass-market services in the region were
“highly concentrated with two dominant providers, Qwest and Cox.” Id. at 8664,
¶ 80. That duopolistic structure, with the potential for tacit price coordination,
necessitated an inquiry into whether any other competitors in the Phoenix MSA
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had deployed or could deploy their own facilities to any significant degree and
also into the potential for de novo entry by new competitors. See id. at 8665–67,
¶¶ 82–84. On both fronts, the Commission found competition in the area
insufficiently robust to put downward pressure on Qwest’s prices. See id. at
8667–68, ¶ 86.
That finding formed the basis for the Commission’s conclusion that
regulatory requirements, particularly unbundling, remained necessary for
continued assurance of “just, reasonable, and non-discriminatory” terms of
service. See id. at 8673, ¶ 98. The Commission also held that these requirements
“remain[ed] necessary to protect consumers,” id. at 8674, ¶ 101, and that
forbearance was not in the public interest because it would not “promote
competitive market conditions,” id. at 8675, ¶ 104 (quoting 47 U.S.C. § 160(b))
(internal quotation marks omitted). The Commission denied forbearance.
Qwest now challenges that decision in its petition for review.
II
A
“We have jurisdiction to review final orders of the [Commission] under 28
U.S.C. § 2342(1).” Qwest Corp. v. FCC, 258 F.3d 1191, 1198 (10th Cir. 2001).
We ordinarily defer under Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984), to the Commission’s formal interpretations of
- 20 -
the 1996 Act made in, for instance, notice-and-comment rulemaking. See Qwest
Commc’ns Int’l, Inc. v. FCC, 398 F.3d 1222, 1229–30 (10th Cir. 2005); see also
United States v. Mead Corp., 533 U.S. 218, 230 (2001) (“[T]he overwhelming
number of our cases applying Chevron deference have reviewed the fruits of
notice-and-comment rulemaking or formal adjudication.”); Mead Corp., 533 U.S.
at 230 (“It is fair to assume generally that Congress contemplates administrative
action with the effect of law when it provides for a relatively formal
administrative procedure tending to foster the fairness and deliberation that
should underlie a pronouncement of such force.”). If “Congress has not directly
addressed the precise question at issue,” we ask whether the Commission’s formal
interpretation is a “permissible construction of the statute,” and we will not
substitute our own views for a “reasonable interpretation” by the Commission.
Chevron, 467 U.S. at 843–44.
In reviewing the Commission’s decisionmaking process, we ask whether
the Commission’s action was “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with the law.” Sorenson Commc’ns, Inc. v. FCC, 659
F.3d 1035, 1045 (10th Cir. 2011) (“Sorenson II”) (quoting 5 U.S.C. § 706(2)(A))
(internal quotation marks omitted). This is a “narrow” standard of review, and we
require only that the Commission “examine the relevant data and articulate a
satisfactory explanation for its action.” FCC v. Fox Television Stations, Inc., 556
U.S. 502, 513 (2009) (quoting Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
- 21 -
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)) (internal quotation marks
omitted).
Generally, when a decision by the Commission represents a change in
policy, our review is no more searching; in other words, no heightened level of
scrutiny attends a policy change. See Rivera Barrientos v. Holder, 666 F.3d 641,
645 (10th Cir. 2012) (“This standard of review is not more searching where the
agency’s decision is a change from prior policy.” (citing Fox Television, 556 U.S.
at 513–14)); see also Sorenson Commc’ns, Inc. v. FCC, 567 F.3d 1215, 1221
(10th Cir. 2009) (“Sorenson I”) (“The same standard of review applies to both
initial policy decisions and subsequent changes in policy.”). “[I]t suffices that the
new policy is permissible under the statute, [and] that there are good reasons for
it . . . .” Fox Television, 556 U.S. at 515. However, some additional justification
is required if the Commission’s new policy “rests upon factual findings that
contradict those which underlay its prior policy” or the prior policy “has
engendered serious reliance interests that must be taken into account.” Id.Brushing aside such matters would be arbitrary and capricious, and thus we would
require the Commission to offer a “reasoned explanation . . . for disregarding
facts and circumstances that underlay or were engendered by the prior policy.”
Id. at 516.
B
- 22 -
Qwest challenges the Commission’s Phoenix Order on two grounds. First,
it argues that section 10 requires the Commission to make affirmative findings on
the substantive prerequisites for granting forbearance; that the Commission here
made no such affirmative findings; and, therefore, that the request for forbearance
should be “deemed granted” by operation of law. Second, Qwest argues that the
Commission’s decision was irrational. We reject both contentions. We conclude
that the Phoenix Order was a reasoned and reasonable decision.
1
With respect to a petition for forbearance, section 10(c) of the 1996 Act
provides as follows:
Any such petition shall be deemed granted if the Commission
does not deny the petition for failure to meet the requirements for
forbearance under subsection (a) of this section within one year
after the Commission receives it . . . . The Commission may
grant or deny a petition in whole or in part and shall explain its
decision in writing.
47 U.S.C. § 160(c).
Qwest reads this provision as a “default rule”—a “statutory thumb on the
scale in favor of forbearance”—and argues that the Phoenix Order was
tantamount to a default triggering a “deemed grant[]” of forbearance because the
Commission did not affirmatively deny Qwest’s petition on the merits. Qwest
Opening Br. at 29–30. In Qwest’s view, it “met all preexisting standards for
forbearance,” and the Commission denied its petition, not because it failed to
- 23 -
meet those standards, but because the Commission “wished to suspend judgment
on whether those standards are in fact the right ones.” Id. at 28. Qwest argues
that “the legal consequence of such bureaucratic indecision is to ‘deem[]’ the
petition ‘granted’ by operation of law.” Id. at 29 (quoting 47 U.S.C. § 160(c)).
The Commission counters that Qwest is improperly attempting to reverse
the burden of proof in forbearance proceedings. See Aplee. Br. at 28–29. In the
Commission’s view, section 10(c) does not make forbearance the “default,” and it
does not put the onus on the Commission to prove that the prerequisites for
forbearance are not satisfied. Rather, section 10(c) “simply means” that the
Commission must attend promptly to forbearance petitions, and the burden is on
the petitioner to show that a regulatory obligation is not needed and that
forbearance is consonant with the public interest. Id. at 29–30 (citing 47 U.S.C. §
160(a)(1)–(3)). The Commission says that Qwest failed to meet that burden here
and the Phoenix Order so concluded. See id. at 32–33.
We first address the issue of burden of proof. Although the statute says
nothing about it, the Commission has determined through a notice-and-comment
proceeding that the burden of proof—encompassing the burdens of both
production and persuasion—is on the petitioner. See In the Matter of Petition to
Establish Procedural Requirements to Govern Proceedings for Forbearance
Under Section 10 of the Communications Act of 1934, As Amended, 24 FCC Rcd.
9543, 9554–55, ¶ 20 (2009) [hereinafter Forbearance Procedures Order]. That
- 24 -
construction of section 10(c) is entitled to our deference. See Mead Corp., 533
U.S. at 230 (holding that agency interpretations promulgated by notice-and-
comment rulemaking warrant Chevron deference). And we believe the
construction to be a reasonable one. See Schaffer ex rel. Schaffer v. Weast, 546
U.S. 49, 57 (2005) (concluding that, where a statute was silent on the burden of
persuasion and “[a]bsent some reason to believe that Congress intended
otherwise,” the burden “lies where it usually falls, upon the party seeking relief”);
see also Zhang v. Slattery, 55 F.3d 732, 756 (2d Cir. 1995) (holding that in the
absence of an express statutory allocation of the burden of proof, the Board of
Immigration Appeals’s placement of the burden on the alien was reasonable under
Chevron), superseded by statute on other grounds, 8 U.S.C. § 1101(a)(42);
Panhandle Producers & Royalty Owners Ass’n v. Econ. Regulatory Admin., 847
F.2d 1168, 1175–76 (5th Cir. 1988) (holding that an agency’s policy shift,
reallocating the burden of proof from natural gas importers to parties opposing
importation, “was based on a reasonable interpretation of the Natural Gas Act”).
Even so, a plain reading of section 10 makes clear that the Commission has
obligations of its own when a party petitions for forbearance. To avoid a
“deemed grant[]” of forbearance, the Commission must: (1) deny a petition “for
failure to meet the requirements for forbearance” under section 10(a), (2) explain
its decision in writing, and (3) do so within the statutorily prescribed period (i.e.,
one year, with a possible extension of up to ninety days). 47 U.S.C. § 160(c)
- 25 -
(emphasis added). That is, the Commission must, within the statutorily
prescribed period, affirmatively find that at least one of the substantive
prerequisites for forbearance is not satisfied—for example, that enforcement
remains necessary to ensure just, reasonable, and nondiscriminatory terms of
service, id. § 160(a)(1); that enforcement remains necessary to protect consumers,
id. § 160(a)(2); or that forbearance would not be consistent with the public
interest, id. § 160(a)(3)—and offer a written explanation to that effect. The
Commission need only find that one of the prerequisites for forbearance is not
met to justify denying the petition. See Cellular Telecomms. & Internet Ass’n v.
FCC, 330 F.3d 502, 509 (D.C. Cir. 2003) (“The three prongs of § 10(a) are
conjunctive. The Commission could properly deny a petition for forbearance if it
finds that any one of the three prongs is unsatisfied.”). But at least one such
finding is necessary for a proper denial and to avoid a “deemed grant[].”
Qwest argues that the Commission dropped the ball here; that the Phoenix
Order “fail[ed] to make the requisite statutory findings” under section 10(a); and
that we should therefore “deem[]” Qwest’s petition “granted.” Qwest Opening
Br. at 30. We are not persuaded. In the Phoenix Order, the Commission
explicitly found that maintaining Qwest’s unbundling obligations was necessary
both for continued assurance of just, reasonable, and nondiscriminatory terms of
service and for protection of Phoenix consumers, see 22 FCC Rcd. at 8673–74,
¶¶ 98, 101 (citing 47 U.S.C. §§ 160(a)(1), (a)(2)), and that forbearance would not
- 26 -
be consistent with the public interest, see id. at 8675, ¶ 105 (citing 47 U.S.C.
§ 160(a)(3)). Moreover, as we explain below, the Commission adequately
justified those conclusions, both on the merits and in light of the conscious policy
shift it was making.
Qwest attempts to frame the Phoenix Order as doing nothing more than
expressing the Commission’s “uncertainty” about its prior forbearance standards
and “thank[ing]” Qwest for its submission. Qwest Opening Br. at 29–30. We
need not opine on whether that kind of order would trigger a “deemed grant[]”
under section 10(c) because we disagree with Qwest’s characterization. In our
view, the Commission rendered a reasoned decision on the merits of Qwest’s
petition in writing and within the statutorily prescribed time frame. To be sure, as
we explicate further below, the Phoenix Order altered precisely how the merits of
forbearance petitions are assessed, and it might well be true (though we need not
say) that Qwest “met all preexisting standards for forbearance.” Id. at 28(emphasis added). But we decline to hold that a forbearance petition is “deemed
granted” under section 10(c) whenever the Commission embarks upon a policy
shift—at least when, as here, we cannot conclude that the Commission’s policy
shift was arbitrary or capricious.
We hold that the Commission met its procedural obligations under section
10 in denying Qwest’s forbearance petition. In other words, the petition was not
“deemed granted” through some procedural omission of the Commission.
- 27 -
Accordingly, we proceed to Qwest’s merits-based challenges to the Phoenix
Order.
2
Qwest attacks the Phoenix Order as irrational, arguing that the Commission
“ignored” the cut-the-cord phenomenon, contrary to its own precedent, and that
the Commission’s assessment of competitive conditions in the Phoenix market
was unreasonable. We reject both arguments and conclude that the Commission’s
decision was not “arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with the law.” Sorenson II, 659 F.3d at 1045 (quoting 5 U.S.C. §
706(2)(A)) (internal quotation marks omitted).
a
We begin with Qwest’s arguments concerning the Commission’s treatment
of the Phoenix-specific cut-the-cord data supplied by Qwest. We acknowledge
that the Commission engaged in some goalpost-moving on this issue. We
nevertheless hold that the exclusion of the cut-the-cord data in the Phoenix Order
was not arbitrary and capricious based on the unique circumstances of this case
and the Commission’s adequate explanation for its shift to a market-power
framework.
In its Verizon Six-MSA Order, the Commission used a national cut-the-cord
estimate to calculate Verizon’s market share in various MSAs. See 22 FCC Rcd.
- 28 -
at 21,323, App. B. It found that Verizon did not satisfy the market-share
benchmark even including the cut-the-cord data. See id. at 21,307–08, ¶ 27.
Subsequently, in the Qwest Four-MSA Order, the Commission found that it was
“appropriate to include wireless-only households” in calculating a carrier’s
market share and observed that “[o]ver the past several years, as wireless
substitution rates have continued to rise, the Commission has begun including
such intermodal substitution in its competitive analyses of the local services
market.” 23 FCC Rcd. at 11,742, ¶ 19 (citing several past orders). The
Commission, however, faulted Qwest for relying on national estimates of
wireless-only households—despite the Commission’s prior reliance on such
national data in the Verizon Six-MSA Order. It insisted that Qwest provide
reliable cut-the-cord data related to the Phoenix MSA and noted that the more
localized data in the record was neither informative nor reliable. The
Commission noted that “Qwest might have qualified for some forbearance upon a
better evidentiary showing.” Id. at 11,745, ¶ 22. But it went on to “emphasize
that petitioners relying on mobile wireless substitution to support forbearance
relief should submit complete and reliable data that is geographically specific to
the areas for which forbearance is sought.” Id.In the Phoenix Order, Qwest delivered precisely the sort of reliable data
that was lacking in the Qwest Four-MSA Order concerning the percentage of
wireless-only voice customers in the Phoenix MSA. And the Commission seemed
- 29 -
to acknowledge as much. See Phoenix Order, 25 FCC Rcd. at 8,654, ¶ 59 &
n.178 (noting that “Qwest submitted studies that estimate the percentage of
households that exclusively rely upon mobile wireless services in the Phoenix
area” and “acknowledg[ing] that the Commission in the Qwest 4 MSA
Forbearance Order suggested that geographically disaggregated evidence of the
percentage of voice subscribers that rely on mobile wireless only might
demonstrate that Qwest was entitled to forbearance in the Phoenix MSA.”).
However, the Commission moved the goalpost. It criticized Qwest’s evidentiary
showing again, this time because Qwest failed to present evidence that consumers
consider wireline voice services and wireless voice services to be substitutes,
such that the latter materially constrains the price of the former. Specifically, the
Commission observed, “Knowing the percentage of households that rely
exclusively upon mobile wireless is insufficient to determine whether mobile
wireless services have a price-constraining effect on wireline access services.”
Id. at 8654, ¶ 59.
This kind of goalpost-moving does not reflect an optimal mode of
administrative decisionmaking. And we do not foreclose the possibility that
under some circumstances an agency’s shifting of the policy goalpost (e.g., the
evidentiary requirements for satisfying a particular statutory or regulatory
standard) may lead us to conclude that the agency has acted arbitrarily or
capriciously. See Smiley v. CitiBank (South Dakota), N.A., 517 U.S. 735, 742
- 30 -
(1996) (noting that “[s]udden and unexplained change [in an agency’s position],
or change that does not take account of legitimate reliance on prior interpretation,
may be arbitrary, capricious [or] an abuse of discretion” (alteration in original)
(citations omitted) (quoting 5 U.S.C. § 706(2)(A)) (internal quotation marks
omitted)); Hatch v. Fed. Energy Regulatory Comm’n, 654 F.2d 825, 834–35 (D.C.
Cir. 1981) (holding that an agency’s sudden shift in the nature of proof required
of the regulated party was not sufficiently explained and necessitated remand);
Pub. Serv. Co. of Ind., Inc. v. Fed. Energy Regulatory Comm’n, 584 F.2d 1084,
1087–88 (D.C. Cir. 1978) (holding that an agency’s sudden, unexplained shift in
the kind of data that a regulated party was required to submit was arbitrary);
Verizon Tel., 570 F.3d at 304 (“[I]t is arbitrary and capricious for the FCC to
apply such new approaches without providing a satisfactory explanation when it
has not followed such approaches in the past.”); see also Fed. Energy Regulatory
Comm’n v. Triton Oil & Gas Corp., 750 F.2d 113, 116 (D.C. Cir. 1984) (“The
Commission may not abuse its discretion by arbitrarily choosing to disregard its
own established rules and procedures in a single, specific case. Agencies must
implement their rules and regulations in a consistent, evenhanded manner.”); cf.
Fox Television, 556 U.S. at 518 (“[T]he agency’s decision not to impose any
forfeiture or other sanction precludes any argument that it is arbitrarily punishing
parties without notice of the potential consequences of their action.”).
- 31 -
However, this is not a case where a conclusion of arbitrary or capricious
agency action is warranted. Two factors provide the central pillars supporting our
view: first, the unique factual circumstances surrounding the issuance of the
Phoenix Order, which should have provided Qwest with at least some (albeit
limited) notice that a policy shift to a market-power analytical framework might
be in the offing; and second, the Commission did not ignore the cut-the-cord
phenomenon, but rather offered a reasonable explanation for why under the
circumstances of this proceeding wireless voice services were excluded from the
product market.
The factual circumstances surrounding the issuance of the Phoenix Order
are somewhat unusual. Qwest filed the earlier petition associated with the Qwest
Four-MSA Order while Verizon’s appeal of the Verizon Six-MSA Order was
pending. Upon review of the Verizon order, the D.C. Circuit disapproved the
Commission’s unexplained policy shift toward an exclusive reliance upon a
carrier’s market share, and it remanded the order. See Verizon Tel., 570 F.3d at
305. In the meantime, the Commission had issued its decision in the Qwest Four-
MSA Order. Because that order embraced an analytical approach similar to the
Verizon order, the D.C. Circuit’s decision applied equally to it. That order, too,
was remanded (at the Commission’s request). Both remands were an opportunity
for the Commission to reconsider its reasoning in those orders and, more
generally, its approach to forbearance petitions.
- 32 -
The Commission sought comment on the analytical approach that it should
adopt for the remanded orders. Among other things, the Commission sought input
regarding whether it should “depart from its recent precedent regarding
marketplace analysis in forbearance petitions,” and concerning the kinds of
evidence beyond “market share for a particular product market” that are relevant
in determining “whether forbearance from unbundling regulations is warranted.”
Remand Comment Request, 24 FCC Rcd. at 10,883; see also Phoenix Order, 25
FCC Rcd. at 8632, ¶ 20 (discussing the regulatory history concerning
forbearance). At the time, Qwest’s Phoenix-MSA petition was pending before the
Commission.
Although the request for comments in connection with the remanded orders
was quite general, the Commission was more specific when it requested
comments in connection with Qwest’s Phoenix-MSA petition in April 2010.
There, the Commission indicated that it was reconsidering its analytical approach
to forbearance petitions; that, specifically, it was pondering adopting a market-
power approach as reflected in the FTC-DOJ Horizontal Merger Guidelines; that
“[a] key element of the Guidelines, as they relate to product market definition,
includes an inquiry into whether a hypothetical monopoly provider of a service
[e.g., wireline voice service] profitably could impose a ‘small but significant and
nontransitory’ increase in the price of such service,” Joint App. at 1199 n.4
(quoting FTC-DOJ Horizontal Merger Guidelines §§ 1.11, 1.12); and the
- 33 -
Commission invited Qwest to “cite specific evidence in the record or provide new
data . . . in response to these issues,” id. at 1199.
The Commission, to be sure, did not commit to a definite policy shift in the
April 2010 notice. And this more specific signal that a policy change might be
coming came pretty late in the day. The notice was issued only a little more than
two months before the Commission actually issued the Phoenix Order. However,
the foregoing factual circumstances suggest to us that the Commission did not act
whimsically or rashly in altering its forbearance policy—the D.C. Circuit remands
gave the Commission a concrete reason to step back and assess its current policy
direction—and that the Commission did provide Qwest with some notice (albeit
of a temporally and substantively limited sort) that a policy move to a market-
power approach might be in the offing, thus significantly diminishing the reliance
that Qwest reasonably could have placed on the Commission’s previous policy
stance. Therefore, we conclude that these unique circumstances counsel against a
determination that the Commission acted arbitrarily or capriciously in moving the
policy goalpost. 6
6
Indeed, in the Phoenix Order, the Commission expressly referred to
this unique set of circumstances in justifying its policy shift:
We acknowledge that the Commission in the Qwest 4 MSA
Forbearance Order suggested that geographically disaggregated
evidence of the percentage of voice subscribers that rely on
mobile wireless only might demonstrate that Qwest was entitled
to forbearance in the Phoenix MSA. See Qwest 4 MSA
(continued...)
- 34 -
Furthermore, the Commission offered a reasonable explanation for its
movement to a market-power analytical framework, which necessitated the
production of qualitatively different evidence to warrant regulatory forbearance.
As the Commission indicated, the market-power framework necessitated a more
rigorous inquiry than the Commission had undertaken in prior orders (such as the
Omaha Order), and part of the inquiry entailed a specific delineation of the
relevant product market for evaluating competitive conditions in the Phoenix
MSA. See Phoenix Order, 25 FCC Rcd. at 8646, ¶¶ 41–42. Further, the product-
market analysis required more than a facile reliance on cut-the-cord percentages.
See id. at 8654–55, ¶ 59. Rather, under the market-power rubric, the relevant
question was the degree to which the cut-the-cord phenomenon materially
constrained the prices that a wireline carrier like Qwest could charge its existing
customers. Id. at 8651–52, ¶ 56. That in turn required an inquiry, not simply into
6
(...continued)
Forbearance Order, 23 FCC Rcd at 11745, para. 22. Since those
statements were made, however, the D.C. Circuit remanded the
Verizon 6 MSA Forbearance Order and instructed the
Commission to provide a more complete economic analysis of its
decision to deny forbearance. The D.C. Circuit, at the
Commission’s request, also remanded the Qwest 4 MSA
Forbearance Order. After the remands, the Wireline
Competition Bureau issued a Public Notice in the present
proceeding seeking new record data that might show that, under
a traditional market power analysis, mobile wireless service is in
the same relevant product market as mass market wireline
telephone service.
Phoenix Order, 25 FCC Rcd. at 8654 n.178, ¶ 59.
- 35 -
the number of wireless-only customers, but into the cross-elasticity of demand
between wireline and wireless services—that is, roughly speaking, the likelihood
that customers can and will switch between the two forms of service in response
to price changes. As to that inquiry, the Commission found that Qwest had
offered no evidence.
In sum, the Commission offered an extensive discussion of its reasons for
abandoning the two-part test in the Omaha Order and for adopting the market-
power approach—an approach with some basis in the Commission’s precedent
and, in the Commission’s view, better in keeping with the underlying purposes of
section 10. 7 See id. at 8633–45, ¶¶ 24–40. The Commission, therefore, was
conscious of the change it was making, believed it to be better, explained why it
was necessary, and offered a sound basis for repudiating its prior decisions. See
Fox Television, 556 U.S. at 515–16; cf. Verizon Tel., 570 F.3d at 304 (stating that
“[t]he flaw” in the Commission’s policy shift was “not in the th[e] change, but
rather in the [Commission’s] failure to explain it”). No doubt, the Commission
7
It also bears mention that Qwest has not challenged the market-power
approach as inconsistent per se with section 10. Furthermore, because “Congress
did not prescribe a ‘particular mode of market analysis’ or otherwise dictate how
the [Commission] must make predictive judgments ‘within [its] field of discretion
and expertise,’ such as those required under § 10,” Verizon Tel., 570 F.3d at 304(second alteration in original) (quoting EarthLink, Inc. v. FCC, 462 F.3d 1, 8, 12
(D.C. Cir. 2006)), the Commission’s construction of section 10 is entitled to
deference, see Chevron, 467 U.S. at 843–44 (“If Congress has explicitly left a gap
for the agency to fill, . . . [the agency’s] regulations [filling in that gap] are given
controlling weight unless they are arbitrary, capricious, or manifestly contrary to
the statute.”).
- 36 -
did move the goalpost here, but it did so under somewhat unique circumstances
and it “articulate[d] a satisfactory explanation” for doing so. Fox Television, 556
U.S. at 513 (quoting State Farm, 463 U.S. at 43) (internal quotation marks
omitted). We conclude, therefore, that its decision was not arbitrary or
capricious. 8
8
Qwest vigorously objects that the Commission misapplied antitrust
concepts by relying on the fact that Qwest had not decreased its prices in the
Phoenix area in response to the cut-the-cord phenomenon. See Phoenix Order, 25
FCC Rcd. at 8653, ¶ 58 (noting that Qwest did not “produce[] any evidence that it
has reduced prices for its wireline services . . . in response to changes in the price
of mobile wireless service.”). Qwest argues that the Commission’s reliance on
this observation is unreasonable because Qwest is a regulated entity that cannot
decrease prices for some customers while maintaining them at current levels for
others. Qwest suggests that, insofar as the Commission relies on proof of a price
reduction in making its product-market determination, it erects an unreasonable
and virtually insurmountable evidentiary hurdle for regulated entities like Qwest.
However, we do not believe that the Commission has acted unreasonably.
As noted in text supra, the Commission specifically identified other types of
proof—besides evidence indicating that Qwest lowered its prices—that Qwest
could have relied upon to support its position that wireline and wireless voice
services should be in the same product market: (1) econometric studies that
“estimate the cross-elasticity of demand between mobile wireless and wireline
access services”; (2) documentation revealing that Qwest has “adjusted its
marketing for wireline service in response to changes in the price of mobile
wireless service”; or (3) “marketing studies that show the extent to which
consumers view wireless and wireline access services as close substitutes.”
Phoenix Order, 25 FCC Rcd. at 8653–54, ¶ 58. Thus, the Commission explicitly
left open the door for Qwest to demonstrate, through various forms of evidence,
that wireless voice services belong in the same product market as traditional
wireline voice services. We would expect, therefore, that with persuasive market
surveys or econometric studies on substitutability, Qwest’s failure to lower its
prices would not, of itself, be an insurmountable hurdle—viz., standing alone, it
would not preclude the Commission from concluding that wireless voice services
should be in the same product market as Qwest’s wireline voice services. Finally,
(continued...)
- 37 -
b
We turn to Qwest’s second major challenge to the Phoenix Order. Qwest
assails as unreasonable the Commission’s assessment of competitive conditions in
the retail mass market in Phoenix, arguing that the Commission unreasonably
declined to assess competition from wireless companies and unreasonably viewed
the Phoenix market as an anti-competitive duopoly. We reject Qwest’s
arguments.
In the Phoenix Order, after delineating the product market and excluding
mobile wireless services, the Commission went on to identify the participants in
the retail mass market in Phoenix. See Phoenix Order, 25 FCC Rcd. at 8657,
¶ 67. It found that Qwest faced competition from Cox and a smattering of
“fringe” competitors that were “able to compete only by relying extensively on
UNEs and other Qwest wholesale services.” 9 Id. at 8664, ¶ 80 (internal quotation
marks omitted).
8
(...continued)
we cannot conclude that it is necessarily unreasonable for the Commission to
consider Qwest’s pricing behavior. See id. at 8653 n.175 (citing a Department of
Justice study reasoning that an incumbent carrier would lower prices in response
to customer cord-cutting “if the loss of revenue from cord-cutting is expected to
be greater than the loss of revenue from reducing the fees paid by customers who
would not switch”).
9
As the Commission explained, “[a] fringe competitor is a small firm
operating in a market that is dominated by a single firm or a few firms. The
fringe competitors take the price set by the dominant firm(s) as given and
maximize their profits given this price.” Phoenix Order, 25 FCC Rcd. at 8664
n.241, ¶ 80.
- 38 -
Qwest faults the Commission for ignoring competition from national
wireless providers such as AT&T and Verizon Wireless. But the market
participants that the Commission identified flowed logically from its definition of
the relevant product market. Because it had determined that the product market
excluded mobile wireless services—and because that exclusion was not arbitrary
in this case—it followed that the pool of service providers in the Phoenix MSA
did not include the national wireless companies. Furthermore, given the market
dominance of Qwest and Cox in wireline services, it was proper for the
Commission to treat the Phoenix MSA as effectively a duopoly. See id.
(observing that “Cox is Qwest’s only competitor that now provides or is soon
likely to provide retail service to mass market customers over its own last-mile
network to any significant extent in the Phoenix MSA”). While the Commission
acknowledged that “under certain conditions duopoly will yield a competitive
outcome,” id. at 8637, ¶ 30, it observed that “[e]conomists, courts, and the
Commission have long recognized that duopolies may present significant risks of
collusion and supracompetitive pricing,” id. at 8636, ¶ 29 (footnotes omitted).
Qwest counters that the Commission justified this conclusion only by
reference to antitrust literature concerning “ordinary duopoly markets” and
ignored the unique characteristics of the telecommunications industry: high fixed
costs and low marginal costs. Qwest Reply Br. at 24; see Qwest Opening Br. at
51. Qwest points out that the Commission has found in previous orders that even
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a single new entrant who has successfully established extensive facilities
coverage, such as Cox, has “demonstrated a deep commitment to compete
vigorously for customers,” thus “lessening the need for regulatory intervention.”
In the Matter of the Petition of ACS of Anchorage, Inc. Pursuant to Section 10 of
the Communications Act of 1934, As Amended, for Forbearance from Sections
251(c)(3) and 252(d)(1) in the Anchorage Study Area, 22 FCC Rcd. 1958, 1977,
¶ 31 (2007); see also Omaha Order, 20 FCC Rcd. at 19,432, ¶ 33 (“The
Commission has repeatedly found that residential customers are highly demand-
elastic, and willing to switch to or from their provider to obtain price reductions
and desired features.”).
The Commission had good reasons, however, to call this prior finding into
question, or at least to question the breadth of its applicability. In explaining why
the test articulated in the Omaha Order was inadequate, the Commission noted
that post-forbearance developments in the Omaha market gave it pause. See
Phoenix Order, 25 FCC Rcd. at 8639–42, ¶¶ 33–36. Among other things,
competition for retail mass-market services in Omaha declined following the
Commission’s grant of forbearance to Qwest, even though the Omaha Order
predicted the contrary outcome. In the Omaha Order, the Commission believed
that forbearance would not cause Qwest to curtail competitor access to network
elements. See 20 FCC Rcd. at 19,455, ¶ 81. In the Commission’s view, Cox’s
aggressive competition would motivate Qwest to offer retail and wholesale
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services at competitive rates in order to minimize customer defections to Cox’s
service. See id.
That prediction, however, did not pan out. As the Commission noted in the
Phoenix Order:
[T]he Commission has long recognized that a vertically
integrated firm with market power in one market--here upstream
wholesale markets where, as discussed below, Qwest remains
dominant--may have the incentive and ability to discriminate
against rivals in downstream retail markets or raise rivals’ costs.
. . . [T]here is little evidence, either in the record or of which we
otherwise are aware, that . . . incumbent LECs have voluntarily
offered wholesale services at competitive prices once regulatory
requirements governing wholesale prices were eliminated. For
example, other than Cox, McLeodUSA was the only other
competitor of significant size cited by the Commission in the
Qwest Omaha Forbearance Order. The record indicates that
subsequent to the Qwest Omaha Forbearance Order, Qwest, with
one exception, was not spurred to offer McLeodUSA any
wholesale alternatives to UNEs that were not already offered
prior to the grant of forbearance. Moreover, the record indicates
that McLeodUSA has removed most of its employees from the
Omaha marketplace, has limited its operations primarily to
serving its existing customer base, and has ceased sales of
residential and nearly all business services in Omaha. This
suggests that McLeodUSA likewise no longer should be
considered a significant competitor in the Omaha marketplace.
We also note record evidence that Integra, which had been
contemplating entry into the Omaha market, abandoned its plans
to do so after the Commission issued the Qwest Omaha
Forbearance Order.
25 FCC Rcd. at 8640–41, ¶ 34 (footnotes omitted). The Commission
acknowledged that “multiple factors” could explain this decline and that it was
“beyond the scope of this proceeding to estimate the extent of competition in
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Omaha today.” Id. at 8640 n.105, 8641, ¶ 34. However, the Commission was
entitled to consider this new data as probative of the soundness (or lack thereof)
of its prior conclusions. See George E. Warren Corp. v. U.S. EPA, 159 F.3d 616,
626–27 (D.C. Cir. 1998) (holding that it was not arbitrary and capricious for an
agency to change course when “one of its basic assumptions in [earlier]
rulemaking was contradicted by new data”), amended on other grounds by 164
F.3d 676 (D.C. Cir. 1999).
Finally, the Commission evaluated whether potential competition in the
Phoenix MSA could ameliorate the risks of duopolistic price coordination. See
Phoenix Order, 25 FCC Rcd. at 8666, ¶ 83. It observed that there were no
competitors for mass-market services in Phoenix that had deployed or could
deploy their own facilities to any meaningful degree, and that the potential for de
novo entry by new competitors was limited. See id. at 8665–67, ¶¶ 82–84.
Taking these factors together—specifically, the well-documented anti-
competitive risks of duopoly, the subsequent developments in Omaha, and the
lack of effective competition in the Phoenix market—the Commission could
rationally call into question its earlier predictions, perceive the need for a
different approach, and proceed cautiously regarding the possibility of granting
forbearance in the Phoenix MSA, given the real-world understanding that doing
so might result in a Qwest-Cox duopoly similar to the one in Omaha. Based upon
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the foregoing reasoning, we reject Qwest’s contention that the Phoenix Order is
unreasonable.
III
Our task here is a “narrow” one. Fox Television, 556 U.S. at 513 (quoting
State Farm, 463 U.S. at 43) (internal quotation marks omitted). We are not a
“panel of referees on a professional economics journal,” but a “panel of generalist
judges obliged to defer to a reasonable judgment by an agency acting pursuant to
congressionally delegated authority.” City of L.A. v. U.S. Dep’t of Transp., 165
F.3d 972, 977 (D.C. Cir. 1999). For the reasons articulated above, we find that
the Phoenix Order was not “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.” Qwest Commc’ns, 398 F.3d at 1229(quoting 5 U.S.C. § 706(2)(A)) (internal quotation marks omitted). Accordingly,
we DENY Qwest’s petition for review.
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