PanAmSat Corp v. FCC ( 1999 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 1999 Decided December 21, 1999
No. 98-1408
PanAmSat Corporation,
Petitioner
v.
Federal Communications Commission and
United States of America,
Respondents
BellSouth Wireless, Inc.,
Intervenor
On Petition for Review of an Order of the
Federal Communications Commission
Henry Goldberg argued the cause for petitioner. With him
on the briefs were Joseph A. Godles and W. Kenneth Ferree.
C. Grey Pash, Jr., Counsel, Federal Communications Com-
mission, argued the cause for respondent. With him on the
brief were Christopher J. Wright, General Counsel, Daniel
M. Armstrong, Associate General Counsel, Joel I. Klein,
Assistant Attorney General, U.S. Department of Justice,
Catherine G. O'Sullivan and Nancy C. Garrison, Attorneys.
Before: Williams, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Williams.
Williams, Circuit Judge: Congress requires that the Fed-
eral Communications Commission collect fees to finance its
regulatory activities. In 1985, as part of the Consolidated
Omnibus Budget Reconciliation Act, it amended the Commu-
nications Act of 1934 by adding a section 8, 47 U.S.C. s 158,
which created a schedule of "application fees" for regulatees
to pay to the FCC. In 1993, again as part of the Omnibus
Budget Reconciliation Act, it expanded FCC fee collection by
adding a section 9, which mandated the collection of "regula-
tory fees" to recover the costs of "enforcement activities,
policy and rulemaking activities, user information services,
and international activities." 47 U.S.C. s 159(a)(1).
PanAmSat Corporation, an operator of satellites for tele-
communications purposes, petitions for review of two separate
aspects of the FCC's 1998 assessment of regulatory fees.
See Assessment and Collection of Regulatory Fees for Fiscal
Year 1998, 13 FCC Rcd 19820 (1998) ("1998 Order"). Both
challenges relate to the Commission's interpretation of s 9.
In the first PanAmSat attacks the FCC's exemption of Com-
sat Corporation from "space station fees," 47 U.S.C. s 159(g),
for satellites Comsat operates as part of the Intelsat and
Inmarsat systems. In the second it challenges the FCC's
assessment of fees on PanAmSat for "international circuits."
Id.Both challenges confront a jurisdictional problem. Al-
though PanAmSat attacks a 1998 Order, the decisions it
complains of are identical to the formulations reached by the
Commission in its 1997 Order. See Assessment and Collec-
tion of Regulatory Fees for Fiscal Year 1997, 12 FCC Rcd
17161, 17187-89 (1997) ("1997 Order"). The statute authoriz-
ing judicial review states that petitions for review must be
filed within 60 days of the final order, see 28 U.S.C. s 2344;
PanAmSat's petition is timely for the 1998 Order but not for
that of 1997. We assume without deciding that the clock does
not automatically start fresh on each new annual iteration of
an order that imposes burdens with respect to a specific year.
Even with that assumption, PanAmSat has brought itself
within standard exceptions to any inference of preclusion to
be drawn from the 60-day limit. See Independent Comm.
Bankers of Am. v. Board of Governors of the Fed. Reserve
Sys., 1999 U.S. App. LEXIS 28145, at *19 (D.C. Cir. Nov. 2,
1999) (noting that typical statutory review periods rarely
contain an "explicit bar" to challenges brought after the time
limit). Because the exceptions are different, we address the
jurisdictional issue separately for each substantive challenge.
Space Station Fees for Comsat
Comsat is a private corporation formed pursuant to the
Communications Satellite Act of 1962. See 47 U.S.C. s 701
et seq. At Comsat's creation Congress designated it the
United States's sole representative and signatory to the In-
ternational Telecommunications Satellite Organization ("Intel-
sat"), 47 U.S.C. s 731, and later the International Maritime
Satellite Organization ("Inmarsat"), 47 U.S.C. s 752; see also
Comsat Corp. v. FCC, 114 F.3d 223, 225 (D.C. Cir. 1997).
These organizations own satellites that are used by signato-
ries, such as Comsat, to provide international communica-
tions. Comsat provides such services as a common carrier
and is "fully subject to the provisions of title II and title III
of [the Communications] Act," 47 U.S.C. s 741. Title II
governs regulation of common carriers, 47 U.S.C. s 201 et
seq.; Title III governs radio communication, 47 U.S.C. s 301
et seq. To participate in the launch of an Intelsat satellite,
for example, Comsat must seek authority from the FCC
pursuant to 47 U.S.C. s 309. See, e.g., In the Matter of
Comsat Corporation Application for authority to participate
in a program for the construction of up to four Intelsat VIII
satellites and to provide its authorized Intelsat services via
these facilities, 12 FCC Rcd 15971 (1997) ("Authority to
Participate").
Until 1985 the FCC required (with limited exceptions) that
international fixed satellite services be provided via the Intel-
sat system. In that year it authorized provision of separate
international satellite services; in 1988 PanAmSat became the
first U.S. provider of a separate system and it now operates
its own worldwide fleet of satellites. Unlike Comsat, PanAm-
Sat operates as a non-common carrier.
Both Comsat and PanAmSat pay s 8 application fees for
space stations. 47 U.S.C. s 158. Such fees apply to those
who "launch and operate" space stations. 47 U.S.C. s 158(g)
(Schedule of Application Fees, Common Carrier Services
(16)(b)). PanAmSat launches and operates its own satellites,
so it obviously must pay the fees; in 1987 the FCC concluded
that Comsat must do so as well insofar as it "participate[s] in
the construction, or in the launch and operation, of [a station
in the Intelsat or Inmarsat system]." In the Matter of
Establishment of a Fee Collection Program to Implement the
Provisions of the Consolidated Omnibus Budget Reconcilia-
tion Act of 1985, 2 FCC Rcd 947, 974 & n.226 (1987) ("1987
Order"). But when Congress established regulatory fees for
space stations in 1993 under s 9, the FCC concluded that
Comsat was exempt from such fees for its Intelsat and
Inmarsat space stations, even though companies like PanAm-
Sat were required to pay the new s 9 fees. See 47 U.S.C.
s 159(g) (Schedule of Regulatory Fees, Common Carrier
Bureau); Assessment and Collection of Regulatory Fees for
Fiscal Year 1995, 10 FCC Rcd 13512 (1995) ("1995 Order").
Comsat's exemption from these fees persists through the
1998 Order.
PanAmSat says that its challenge to the Comsat exemption
is timely for two reasons. It argues first that an intervening
decision of this circuit, Comsat Corp. v. FCC, 114 F.3d 223(D.C. Cir. 1997), reopened the issue, and second that the
FCC's 1997 decision, although deciding the issue for 1997,
explicitly kept the issue open for the future.
The FCC exempted Comsat from space station fees back in
1995, but in 1996 it noted that Comsat was not being charged
for the regulatory costs it imposed on the FCC.1 This
prompted the agency to adopt a "signatory fee" that applied
to Comsat as the United States's signatory in organizations
like Intelsat. See Comsat, 114 F.3d at 225-26. Comsat
challenged the fee, and in an opinion filed May 30, 1997, this
court invalidated it because the FCC had not adopted the
signatory fee as a consequence of any identified "rulemaking
proceedings or changes in law," a requisite for changes in
regulatory fees under 47 U.S.C. s 159(b)(3). See Comsat,
114 F.3d at 227-28. At that point, the FCC had already
proposed retaining the signatory fee for 1997 in a March 5,
1997 notice of proposed rulemaking. The FCC's final order,
filed June 26, 1997, dropped the signatory fee, because of the
judicial intervention, and put nothing in its stead. Noting our
decision, the FCC said, "Accordingly, we will not, at this time,
assess a fee to recover the costs of our regulatory activities in
connection with Comsat's role as U.S. Signatory." 1997
Order, 12 FCC Rcd at 17187. The Commission noted that
those costs amounted to "approximately 7.8% of all interna-
tional costs." Id. at 17187 n.26. In the 1998 Order, the FCC
made no attempt to recover these costs and did not discuss
possible space station fees for Comsat, even though PanAm-
Sat argued in its comments that Comsat should not be
exempt. See 1998 Order, 13 FCC Rcd at 19835-36 (discuss-
ing fees for geostationary satellites without mentioning any
attempt to recoup signatory-related costs attributable to
Comsat).
PanAmSat argues that this court's decision in Comsat
reopened the issue of Comsat's fees sufficiently to render a
challenge to the 1998 Order timely. We said in Kennecott
Utah Copper Corp. v. United States Dep't of Interior, 88 F.3d
1191, 1214 (D.C. Cir. 1996), that judicial review of agency
__________
1 Even in its 1995 Order exempting Comsat the FCC noted that
Comsat was escaping fees for its regulatory costs to the FCC. See
1995 Order, 10 FCC Rcd at 13550 ("[W]e intend to explore other
ways to recover the regulatory costs imposed on the Commission on
behalf of Comsat's participation in the Intersat [sic] and Inmarsat
programs.").
action can sometimes amount to a "constructive reopening" of
a prior agency decision, where "[f]or us to foreclose review of
the agency's [new] decision to adhere to the status quo ante
under changed circumstances, on the ground that the agency
had not evidenced a willingness to reconsider the issue, would
be to deny the significance of our own earlier ruling." But
we qualified the reopening concept by saying that it would not
be available where the "parties had adequate notice of a
forthcoming change that might alter their incentive to seek
judicial review," id., and indeed found in that case that the
"potential litigants were on notice by the petition for review"
which led to the intervening change, id. at 1215.
PanAmSat may have had adequate notice of Comsat's
petition for review of the signatory fee. Certainly it had
notice of the intervening decision in Comsat when the FCC
issued its 1997 Order. But we need not decide whether the
timing of our decision in Comsat was such that a challenge
should have been brought to the 1997, and not the 1998,
Order. In the 1997 Order the FCC itself made statements
that kept the issue open enough for a challenge to the 1998
Order.
The FCC said in the 1997 Order that it would not "at this
time, assess a fee to recover the costs of our regulatory
activities in connection with Comsat's role as U.S. Signatory."
1997 Order, 12 FCC Rcd at 17187 (emphasis added). We
think this statement is most reasonably read as stating an
intention by the FCC to hold its approach to recovery of costs
from Comsat open, especially given "the entire context of the
rulemaking," see National Ass'n of Reversionary Property
Owners v. Surface Transp. Bd., 158 F.3d 135, 141 (D.C. Cir.
1998) (quoting Public Citizen v. NRC, 901 F.2d 147, 150 (D.C.
Cir. 1990)): the 1995 statement that the Commission would
"explore other ways to recover the regulatory costs," 1995
Order, 10 FCC Rcd at 13550, the 1996 imposition of the
signatory fee, and the initial 1997 proposal (thwarted by our
decision) to continue the signatory fee. With that back-
ground the Commission's statement that it would not seek to
recover the costs "at this time," far from merely "reaffirming
[the agency's] prior position," Kennecott, 88 F.3d at 1213, was
a commitment to continue the quest for a solution. Accord-
ingly, we find PanAmSat's challenge to the 1998 Order timely
and reach the merits of PanAmSat's attack on the exemption
of Comsat from the regulatory fees under s 9.2
The Commission's theory is that exemption is commanded
by the statute's "plain legislative history," though not by the
text itself. See Respondent's Br. at 24. We examine this
theory under the standard principle that if Congress has
spoken to the precise question at issue, we must "give effect
to the unambiguously expressed intent of Congress," but if
Congress has not, we defer to a permissible agency construc-
tion of the statute. Chevron U.S.A. Inc. v. NRDC, 467 U.S.
837, 842-43 (1984).
The statute itself seems to have no suggestion that Comsat
should be exempt. Section 9 directs the Commission to
"assess and collect regulatory fees to recover the costs of ...
enforcement activities, policy and rulemaking activities, user
information services, and international activities." 47 U.S.C.
s 159(a)(1). Fees are derived from a number of "factors,"
including the number of Commission employees in various
"bureaus," and "the benefits provided to the payor of the fee
by the Commission's activities, including such factors as
service area coverage, shared use versus exclusive use, and
other factors that the Commission determines are necessary
in the public interest." 47 U.S.C. s 159(b)(1)(A). If the
Commission wants to adjust or amend the schedule of fees, it
must satisfy certain preconditions. See Comsat, 114 F.3d at
227-28. The statute then provides a starting schedule of
fees, which includes a "space station" category, under which
Congress assessed a fee "per operational station in geosynch-
__________
2 PanAmSat has standing to challenge a decision to exempt
Comsat from space station fees because Congress sets a fixed
amount the FCC must recover through s 9 fees. Thus an exemp-
tion for Comsat from certain fees increases the amount that must
be extracted from other regulatees, such as PanAmSat.
ronous orbit." 47 U.S.C. s 159(g) (Schedule of Regulatory
Fees, Common Carrier Bureau).
The Commission's invocation of legislative history of course
presupposes some obscurity in the statute. "[W]e do not
resort to legislative history to cloud a statutory text that is
clear." Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994);
see also Sutton v. United Air Lines, Inc., 119 S. Ct. 2139,
2146 (1999); Connecticut Nat'l Bank v. Germain, 503 U.S.
249, 253-54 (1992); United States v. Bost, 87 F.3d 1333, 1336
(D.C. Cir. 1996). It is most unclear to us where the neces-
sary statutory ambiguity lurks.
The plain terms of s 9 have already been quoted; they
clearly do not require an exemption for Comsat, and there is
no obvious hook in the language on which to hang an exemp-
tion. Moreover, the Commission conceded in its 1995 Order
that "regulatory costs [are] imposed on the Commission on
behalf of Comsat's participation in the Intersat [sic] and
Inmarsat programs." 1995 Order, at 13550. Thus Comsat's
payment of regulatory fees for its space stations would serve
s 9's general purpose of recovering the Commission's costs
for its regulatory activities. And s 9 contains a category of
"Exceptions" to the fee schedule, 47 U.S.C. s 159(h), saying
that the fees should not apply to "(1) governmental entities or
nonprofit entities; or (2) to amateur radio operator licenses
under part 97 of the Commission's regulations." If Congress
intended an exception for Comsat, we might expect to find it
there.
Further, the FCC's treatment of the analogous provision in
s 8 argues for non-exemption. Section 8 calls for a fee for an
"application for authority to launch and operate" for "space
stations," 47 U.S.C. s 158(g) (Schedule of Application Fees,
Common Carrier Services (16)(b)), and the Commission in
1987 concluded that Comsat must pay such a fee when it
participates in the launch and operation of stations in the
Intelsat and Inmarsat systems. See 1987 Order, 2 FCC Rcd
at 974 & n.226. It is hard to see why the "space station"
application fee under s 8 covers Comsat, but the "space
station" regulatory fee under s 9 does not. The Commis-
sion's reading of s 8 was in place when Congress enacted s 9.
At oral argument the Commission cautioned that a parallel
construction of the two sections would force the Commission
to extract s 9 fees when, for example, Comsat and other U.S.
companies use Canadian and Mexican satellites; according to
Commission counsel, U.S. companies pay s 8 fees when ap-
plying to use foreign satellites. When pressed, however,
counsel did not know whether such use of foreign satellites
actually causes the Commission any regulatory burdens--a
prerequisite for s 9 fees and a conceded reality for Comsat's
participation in Intelsat and Inmarsat.
Thus the statute plainly does not require--and may not
permit--Comsat's exemption from space station regulatory
fees. Nor would the legislative history change the result,
assuming the statute to be ambiguous enough to allow its
consideration. The Commission points to the Conference
Report for the 1993 amendments, which explicitly incorporat-
ed by reference, "[t]o the extent applicable, the appropriate
provisions of the House Report (H.R. Rep. 102-207)." See
Conf. Rep. H. Rep. No. 213, 103d Cong., 1st Sess. 499 (1993).
The latter explicated a virtually identical bill that passed the
House in 1991 but failed to be enacted. The relevant passage
of the incorporated report reads as follows:
The Committee intends that [space station fees] be as-
sessed on operators of U.S. facilities, consistent with
FCC jurisdiction. Therefore, these fees will apply only
to space stations directly licensed by the Commission
under Title III of the Communications Act. Fees will
not be applied to space stations operated by international
organizations subject to the International Organizations
Immunities Act, 22 U.S.C. s 288 et seq.
H.R. Rep. 102-207, at 26 (1991). In exempting Comsat from
s 9 space station regulatory fees the Commission relied solely
on this legislative history and on the fact that Intelsat and
Inmarsat are both, by executive order, international organiza-
tions subject to the International Organizations Immunities
Act. See 1995 Order, 10 FCC Rcd at 13550 & n.30.
The legislative history does not seem to us anywhere near
as conclusive as it did to the Commission. The 1991 report
speaks of granting cost recovery authority "consistent with
FCC jurisdiction" for "space stations directly licensed by the
Commission under Title III of the Communications Act."
H.R. Rep. 102-207, at 26. Comsat must seek FCC authoriza-
tion under Title III (i.e., "application for license," 47 U.S.C.
s 309) for its launch and operation of Intelsat and Inmarsat
satellites. See Statement of Policy Concerning Procedures
Applicable to Comsat's Applying for Commission Authoriza-
tion to Participate in Certain Intelsat Activities, 46 FCC 2d
338, 338 & n.2 (1974); see, e.g., Authority to Participate, 12
FCC Rcd 15971, 15971 n.1 (1997). Thus imposing s 9 fees on
Comsat is consistent with the FCC's Title III licensing juris-
diction. It was this precise rationale that led the FCC to
include Comsat in the s 8 application fees. See 2 FCC Rcd
at 974 & n.226.
At oral argument the Commission attempted a delicate
distinction between, on the one hand, applications for satellite
licenses, and on the other hand, Comsat's applications for
approvals of its participation in the launch and operation of
Intelsat satellites. The Commission insisted that, even
though it issues its approvals of the latter under the authority
of 47 U.S.C. s 309, see Authority to Participate, 12 FCC Rcd
at 15971 n.1, which relates exclusively to licensing, it does not
"license" Intelsat satellites. But it seems perfectly reason-
able to say under these circumstances that the Commission
"licenses" Comsat's operation of Intelsat satellites. Thus, the
legislative history's embrace of fees for satellites "directly
licensed by the Commission under Title III" seems reason-
ably to encompass Comsat.
Even if we take the 1991 House report as gospel, the key
passage seems most plausibly to leave Comsat subject to fees
for the regulatory activity that it generates, and to exempt
only organizations like Intelsat and Inmarsat themselves.
Both organizations are covered by the International Organi-
zations Immunities Act, 22 U.S.C. s 288 et seq., and their
exemption would be consistent with the many privileges,
exemptions, and immunities such organizations enjoy. See,
e.g., 22 U.S.C. s 288a(d) ("Insofar as concerns customs duties
and internal-revenue taxes imposed upon or by reason of
importation, and the procedures in connection therewith; the
registration of foreign agents; and the treatment of official
communications, the privileges, exemptions, and immunities
to which international organizations shall be entitled shall be
those accorded under similar circumstances to foreign gov-
ernments."). Comsat, on the other hand, has no claim to such
privileges.
Given the ambiguity of the legislative history, and more
importantly the absence of any clear exemption in the statute,
the FCC was mistaken in its conclusion that the statute
compelled an exemption for Comsat. Neither the statute nor
its legislative history speaks precisely to an exemption for
Comsat. Perhaps there is some ambiguity in the coverage of
the "space station" category in s 9, such that the Commission
might "permissibly" read the statute as allowing a Comsat
exemption. But the FCC reached its conclusion via a plain
misreading of the statute, finding exemption compelled. "An
agency action, however permissible as an exercise of discre-
tion, cannot be sustained 'where it is based not on the
agency's own judgment but on an erroneous view of the
law.' " Sea-Land Service, Inc. v. Department of Transporta-
tion, 137 F.3d 640, 646 (D.C. Cir. 1998) (quoting Prill v.
NLRB, 755 F.2d 941, 947 (D.C. Cir. 1985)). We accordingly
grant the petition and remand the case to the Commission for
reconsideration of Comsat's exemption from the s 9 space
station fees.
Non-common Carrier International Circuits
PanAmSat's second challenge is to the FCC's assessment
of fees on PanAmSat for "international circuits." The statute
explicitly covers such circuits. 47 U.S.C. s 159(g) (Schedule
of Regulatory Fees, Common Carrier Bureau). Until 1997
the FCC collected such fees only from common carriers,
leaving PanAmSat off the hook. But in 1997 it extended the
fees to non-common carriers. See 1997 Order, 12 FCC Rcd
at 17188. This assessment persists in the 1998 Order.
Responding to the Commission's invocation of the time bar
implicit in the 60-day limit of 28 U.S.C. s 2344, PanAmSat
argues that the Commission itself reopened the issue in 1998,
by responding in detail to comments and by not relying on its
prior resolution of the issue. We agree.
The controlling principle is that if an agency's response to
comments "explicitly or implicitly shows that the agency
actually reconsidered the rule, the matter has been reopened
and the time period for seeking judicial review begins anew."
National Ass'n of Reversionary Property Owners, 158 F.3d
at 141; see also Public Citizen, 901 F.2d at 150.
Here we find that the FCC did reconsider the issue in
adopting the final rule, and did not expressly reaffirm its
prior position as if the matter were settled in 1997. Both
findings are important. First, the 1998 Order states that "we
[the FCC] proposed [in the NPRM] to again assess the
bearer circuit fee." 1998 Order, 13 FCC Rcd at 19837. The
Order then devotes five paragraphs to defending the fee
against the various comments that were made, including
PanAmSat's, and concludes by stating "we continue to believe
that our regulation of these entities has sufficiently changed
so that it is now appropriate for them to contribute to the
recovery of Commission costs through payment of the bearer
circuit fee." Id. at 19839.
Moreover, the FCC did not suggest in 1998 that it had
settled the matter conclusively in 1997. In a sense, then, the
Commission's characterization of the petition for review as
untimely invokes reasoning that it failed to make in its
response to comments. We do not ordinarily consider agency
reasoning that "appears nowhere in the [agency's] order."
Graceba Total Communications, Inc. v. FCC, 115 F.3d 1038,
1041 (D.C. Cir. 1997); see also SEC v. Chenery Corp., 332
U.S. 194, 196 (1947). Our reopening analysis does not create
a disincentive to an agency's responding to the substance of a
renewed attack on a rule: without risking loss of the benefits
of the 60-day rule, the Commission could have first relied on
the fact that the matter was settled in 1997, and then
discussed the continued justification of the fee. But it opted
only for the latter, and in a manner that reasonably reads as
a reopening. PanAmSat's claim is therefore not time-barred.
The attack on the "international circuits" assessment has
two elements. First, PanAmSat says that the "international
circuit" category as created by Congress applies only to
common carriers, which PanAmSat is not. Second, if the
FCC has amended the fee schedule (which must be true if the
first argument is sound), then it must justify the change on
the basis of "changes in the nature of its services as a
consequence of Commission rulemaking proceedings or
changes in law," 47 U.S.C. s 159(b)(3); see also Comsat, 114
F.2d at 227, which PanAmSat says the Commission has failed
to do. We need not consider the first challenge: assuming in
PanAmSat's favor that the "international circuit" category
originally excluded non-common carriers, we find that the
Commission's decision to include non-common carriers is jus-
tifiable on the basis of changes in the Commission's services
that flow from earlier rulemakings.
PanAmSat does not deny that regulatory changes have
occurred in the services non-common carriers may offer. The
most noteworthy development was progressive relaxation of a
prior ban on interconnection between non-common carriers
and the public switched telephone network. The Commission
invoked this and other rulemaking changes in justifying the
new fee assessment in its 1997 Order and represented that
"the steady expansion of services offered by the non-common
carrier satellite operators has greatly increased the need for
our oversight of their commercial activities and imposed a
greater burden on [Commission] staff and other resources."
1997 Order, 12 FCC Rcd at 17189 & nn.30-32 (citing other
rulemakings). The Commission reiterated this rationale in
the 1998 Order, and noted that "Commission staff [have] also
spent considerable time representing non-[common] carrier
satellite operators in international forums," which corre-
sponds directly with one of the purposes of the regulatory
fees, the recovery of costs for "international activities." 1998
Order, 13 FCC Rcd at 19839; 47 U.S.C. s 159(a)(1).
PanAmSat concedes that such changes may have "argu-
ably" increased the Commission's oversight responsibilities,
but says that the increased costs to the FCC have not been
enough to justify the fee changes, and that the fees from the
common carriers suffice to cover costs. Another theme from
PanAmSat is that deregulation (which has admittedly oc-
curred) does not logically entail an increase in regulatory
costs for the Commission. The Commission's response is that
deregulation has indeed entailed greater regulatory costs.
This response, that deregulation has made the Commission
busier than ever, might at first glance seem worthy of Sir
Humphrey Appleby, hero of the comedy "Yes Minister":
"Naturally, as an experienced civil servant, a proposal to
reduce and simplify the administration of government con-
jured up in Humphrey's mind a picture of a large intake of
new staff specifically to deal with the reductions." Jonathan
Lynn and Antony Jay, eds., The Complete Yes Minister 113
(1987). But it is not difficult to imagine deregulatory scenar-
ios that would in fact place greater burdens on the regulator.
A deregulatory change that generates significant growth in
both the number of providers and the array of satellite
services they may offer (which are activities to be overseen by
the agency), may decrease regulation per provider or per unit
of activity and yet sharply increase total regulatory action.
Given PanAmSat's grudging concession that the Commis-
sion's oversight responsibilities have "arguably" increased
and no evidence that the Commission has been deceitful about
its burdens, we find that the Commission has adequately
pointed to regulatory changes and to apparently contributory
changes in law. See Comsat, 114 F.3d at 227-28.
* * *
We grant the petition in part, remanding the case to the
Commission for reconsideration of Comsat's exemption from
s 9 space station fees. We deny the petition with respect to
the assessment of international circuit fees on PanAmSat.
So ordered.