Conference Group, LLC v. Federal Communications Commission , 720 F.3d 957 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 15, 2013 Decided July 2, 2013
No. 12-1124
THE CONFERENCE GROUP, LLC,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS
CISCO WEBEX LLC,
INTERVENOR FOR PETITIONER
VERIZON AND VERIZON WIRELESS,
INTERVENORS FOR RESPONDENTS
On Petition for Review of An Order of
the Federal Communications Commission
Ross A. Buntrock argued the cause for petitioner. With him
on the briefs was Michael B. Hazzard.
Christopher J. Wright argued the cause for intervenor Cisco
WebEx LLC. With him on the briefs was Brita D. Strandberg.
Joel Marcus, Counsel, Federal Communications
Commission, argued the cause for respondent. On the brief were
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Robert B. Nicholson and Nickolai G. Levin, U.S. Department of
Justice, Attorneys, and Sean A. Lev, General Counsel, Federal
Communications Commission, Peter Karanjia, Deputy General
Counsel, Richard K. Welch, Deputy Associate General Counsel,
and Laurel R. Bergold, Attorney.
Helgi C. Walker argued the cause for intervenors Verizon,
et al. With her on the brief were Elbert Lin, Michael E. Glover,
and Christopher M. Miller.
Before: GARLAND, Chief Judge, ROGERS, Circuit Judge,
and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: In 2008 the Federal
Communications Commission decided that the audio bridging
services provided by InterCall, Inc. are properly classified as
“telecommunications” under the Communications Act of 1934,
as amended, and thereby obligate it and “similarly situated”
providers to contribute directly to the Universal Service Fund
(“USF”), 47 U.S.C. § 254(d). The Conference Group, joined by
intervenor Cisco WebEx, contends that the Commission
converted an unlawful decision by the administrator of the USF
as to InterCall, Inc.’s contribution obligation into an industry-
wide legislative rule without adequate notice or comment, in
violation of section 553 of the Administrative Procedure Act
(“APA”), and that the Commission’s action was arbitrary and
capricious because it ignored uncontroverted facts and legal
precedent.
The Conference Group has standing to challenge the
Commission’s decision as procedurally unlawful rulemaking,
but we conclude that there is no merit to that challenge. The
Commission’s decision involved a statutory interpretation that
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could be rendered in the form of an adjudication, not only in a
rulemaking. Because the decision was an adjudication and the
The Conference Group was not a party, it lacks standing to
challenge the merits of that adjudication. Although the
Commission stated its decision would apply to “similarly
situated” providers, that is true of all precedents. And this court
has held that the mere fact that an adjudication creates a
precedent that could harm a non-party does not create the injury-
in-fact required for Article III standing. If the Commission
applies its rule of decision for InterCall, Inc. to The Conference
Group, The Conference Group can present its substantive
arguments in its own adjudication. Intervenor Cisco WebEx’s
lack of standing is a fortiori because it claims it is not similarly
situated to InterCall, Inc. and thus can claim no injury as a
consequence of the Commission’s decision. Accordingly, we
deny The Conference Group’s petition in part and dismiss it in
part for lack of jurisdiction.
I.
The Communications Act of 1934, as amended by the
Telecommunications Act of 1996, 47 U.S.C. § 151 et seq. (“the
Act”), defines two categories of regulated entities relevant here:
telecommunications carriers and information-service providers.
See generally Nat’l Cable & Telecomm. Ass’n v. Brand X
Internet Serv., 545 U.S. 967, 975 (2005) (“Brand X”). The Act
regulates the former as common carriers, and providers of
telecommunications services are required to contribute to the
USF. 47 U.S.C. § 254(d). It also authorizes the Commission to
impose additional regulatory obligations on non-common
carriers under its Title I ancillary jurisdiction to regulate
interstate and foreign communications. See Brand X, 545 U.S.
at 975 (citing 47 U.S.C. §§ 151–161). The Act defines
“telecommunications” as “the transmission, between or among
points specified by the user, of information of the user’s
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choosing, without change in the form or content of the
information as sent and received.” 47 U.S.C. § 153(50). Thus,
“telecommunications service” is “the offering of
telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the
public, regardless of the facilities used.” Id. § 153(53). In
contrast, “information service” is “the offering of a capability
for generating, . . . or making available information via
telecommunications, and includes electronic publishing, but
does not include any use of any such capability for the
management, control, or operation of a telecommunications
system or the management of a telecommunications service.”
Id. § 153(24).
Section 254, on universal service, provides, in relevant part:
Every telecommunications carrier that provides
interstate telecommunications services shall contribute,
on an equitable and nondiscriminatory basis, to the
specific, predictable, and sufficient mechanisms
established by the Commission to preserve and
advance universal service. . . . Any other provider of
interstate telecommunications may be required to
contribute to the preservation and advancement of
universal service if the public interest so requires.
Id. § 254(d) (emphases added). By regulation, the Commission
announced that, in addition to “telecommunications services”
providers such as common carriers, “[c]ertain other providers of
interstate telecommunications . . . also must contribute to the
universal service support mechanisms.” 47 C.F.R. § 54.706(a).
Specifically:
Interstate telecommunications include, but are not
limited to: (1) Cellular telephone and paging services;
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(2) Mobile radio services; (3) Operator services; (4)
Personal communications services (PCS); (5) Access
to interexchange service; (6) Special access service; (7)
WATS; (8) Toll-free service; (9) 900 service; (10)
Message telephone service (MTS); (11) Private line
service; (12) Telex; (13) Telegraph; (14) Video
services; (15) Satellite service; (16) Resale of interstate
services; (17) Payphone services; and (18)
Interconnected VoIP services[;] (19) Prepaid calling
card providers.
Id. (emphasis added). Required USF contributions are based on
a provider’s projected net end-user telecommunications
revenues, id. § 54.706(b), and filed in accordance with the
Telecommunications Reporting Worksheet (FCC Form 499), id.
§ 54.711(a), (c). Since 2002 the instructions accompanying the
FCC Form 499 for annual filings have provided that “toll
teleconferencing” is subject to direct USF contributions. See
FCC Form 499-A Telecommunications Reporting Worksheet at
20 (Feb. 2002).
The Commission has delegated administration of the USF
to the Universal Service Administrative Company (“USAC”),
see In re Changes to the Board of Directors of the National
Exchange Carrier Association, Inc. and Federal-State Joint
Board on Universal Service, 12 FCC Rcd. 18400, 18407 ¶ 11
(1997) (“Second Order on Reconsideration”). It has no policy
or interpretive role, see 47 C.F.R. § 54.702(c), and must seek
guidance from the Commission where the Act or the
Commission’s rules are unclear or do not address a particular
situation, id. Upon appeal of the USAC’s contribution
decisions, the Commission conducts de novo review of “novel
questions of fact, law, or policy.” Id. § 54.723(b).
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In 2007, the USAC initiated an audit of InterCall, Inc. for
the purpose of determining whether it owed USF contributions.
As self-described, InterCall, Inc. offers an audio bridging
service that “allows multiple end users to communicate and
collaborate with each other using telephone lines” by “link[ing]
multiple communications together and feed[ing] to each station
a composite audio input minus the user’s own audio.” See In the
Matter of Request for Review by InterCall, Inc. of Decision of
the Universal Service Administrator at 4, CC Docket No. 96-45
(Feb. 1, 2008) (“Request for Review”). “The audio bridge also
performs conference validation functions, collects billing and
participant information . . . and enables numerous conference
control features, including recording, delayed playback, mute
and unmute of callers and operator assistance.” Id. InterCall,
Inc. provides a “stand-alone” audio bridge service and
“purchases toll-free, international and/or local number-based
services from one or more telecommunications vendors” in
order to obtain the telecommunications input required to operate
its service. Id. at 5.
The USAC found that the audio bridging services provided
by InterCall, Inc. are toll teleconferencing services subject to
direct USF contribution obligations. See Letter from USAC to
Steven A. Augustino, Esq. (Jan. 15, 2008) (“USAC Decision”).
InterCall, Inc. sought review by the Commission and a stay,
arguing that the USAC acted beyond its authority, and that
InterCall, Inc.’s audio bridging service is an information service
that is not obligated to make USF payments. See Request for
Review at 1, 6-10. It argued that the Commission had to
proceed by rulemaking to modify audio bridging providers’ USF
contribution requirements, id. at 23-25, and, alternatively, that
even if audio bridging services were telecommunications,
InterCall, Inc. and other stand-alone audio bridging service
providers are not subject to common carrier regulations and thus
not subject to § 254(d)’s mandatory contribution obligations, see
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id. at 12-17. The Commission issued a public notice on
February 14, 2008, seeking comment on InterCall, Inc.’s request
for review of the USAC Decision and a stay. Comments by
interested parties were due, and comments were received, by
February 25, 2008 as were reply comments due, and in fact
received, by March 3, 2008.
The Commission denied in part and granted in part
InterCall, Inc.’s request for review. In re Request for Review by
InterCall, Inc. of Decision of Universal Service Administrator,
23 FCC Rcd. 10731 (2008) (“InterCall Order”). The
Commission found that “the audio-bridging services InterCall
provides are equivalent to teleconferencing services and are
‘telecommunications’ under the Telecommunications Act of
1996 (1996 Act) and the Universal Service First Report and
Order.” InterCall Order, 23 FCC Rcd. at 10731 ¶ 1 (citing
Federal-State Joint Board on Universal Service, 12 FCC Rcd.
8776 (1997) (“Universal Service First Report and Order”), aff’d
in part, rev’d in part, remanded in part sub nom, Texas Office
of Public Utility Counsel v. FCC, 183 F.3d 393 (5th Cir. 1999),
cert. denied, 530 U.S. 1210 (2000), cert. dismissed, 531 U.S.
975 (2000)). It explained that such audio bridging services are
properly classified as “telecommunications” because “the
purpose and function of the bridge is simply to facilitate the
routing of ordinary telephone calls.” Id. at 10735 ¶ 11. As it
had “previously determined in performing a similar analysis,”
the Commission observed that “this results in no more than the
creation of the transmission channel chosen by the customer.”
Id. (citing In re North American Telecommunications
Association Petition for Declaratory Ruling Under § 64.702 of
the Commission’s Rules Regarding the Integration of Centrex,
Enhanced Services, and Customer Premises Equipment, ENF
84-2, Mem. Op. & Order, 101 FCC 2d 349, 363 ¶ 31 (1985)
(“No. Am. Telecomm. Petition”)).
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The Commission further found that the add-on “features
offered in conjunction with InterCall’s service are not
‘integrated,’” id., and thus “do not change a service from
telecommunications to an information service,” id. at 10735
¶ 12. Such “features perform validation functions, collect
billing and participant information, and enable the participants
to record, delete playback, mute and unmute, and access
operator assistance,” id. (citing In re Regulation of Prepaid
Calling Card Services, 21 FCC Rcd. 7290, 7295-96 ¶¶ 14-15
(2006) (“Prepaid Calling Card Order”)), and “do not alter the
fundamental character of InterCall’s telecommunications
offering so that the entire offering becomes an information
service,” id. at 10735 ¶ 13. Rather, “[c]onsistent with the
decision in the Prepaid Calling Card Order, these separate
capabilities are part of a package in which the customer can still
conduct its conference call with or without accessing these
features.” Id. They “therefore, are not sufficiently integrated
into the offering to convert the offering into an information
service.” Id. Because “[p]roviders of [telecommunications]
services must contribute directly to the USF based on revenues
from these services,” the Commission denied InterCall, Inc.’s
request to reverse the USAC Decision in that regard. Id. at
10731 ¶ 1.
The Commission granted InterCall, Inc.’s request for
review insofar as the USAC had required contributions based on
past revenues, and instead chose to apply its decision on a
prospective basis, partly in view of the lack of clarity regarding
the direct contribution obligations of stand-alone audio bridging
service providers. Id. at 10738 ¶ 24. The Commission directed
the USAC “to implement the findings in this order with respect
to all audio bridging service providers,” id. at 10739 ¶ 25, “and
reiterate[d] that all similarly situated providers, i.e., stand-alone
teleconferencing providers as well as integrated teleconferencing
providers, are, at a minimum, providers of telecommunications
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for the purposes of contributing to the [USF] . . . .” Id. at 10739
¶ 26. InterCall, Inc. was ordered to “contribute directly to the
USF beginning as of the calendar quarter immediately following
the next scheduled FCC Form 499-Q[uarterly] filing after the
release date of this order.” Id. at 10731 ¶ 1. The Commission
“further direct[ed] USAC to ensure that all similarly situated
audio bridging service providers contribute directly to the USF
beginning as of this same time frame.” Id.
Other audio bridging service providers, but not InterCall,
Inc., petitioned for reconsideration and clarification. After
providing public notice and receiving comments, the
Commission denied the petitions. In re Universal Service
Contribution Methodology, 27 FCC Rcd. 898 (2012)
(“Reconsideration Order”). The Conference Group, joined by
intervenor Cisco WebEx, petitions for review of the InterCall
Order, invoking the court’s jurisdiction under 47 U.S.C.
§ 402(a).
II.
As a threshold matter, the court must address whether
petitioner The Conference Group and intervenor Cisco WebEx
have standing to challenge the InterCall Order, as it implicates
our jurisdiction. See Am. Library Ass’n v. FCC, 401 F.3d 489,
492 (D.C. Cir. 2005); Fund for Animals, Inc. v. Norton, 322 F.3d
728, 733 (D.C. Cir. 2003) (citing Sierra Club v. EPA, 292 F.3d
895, 898 (D.C. Cir. 2002)); see also Steel Co. v. Citizens for a
Better Environment, 523 U.S. 83, 93 (1998). Neither was the
specific company whose audio bridging service was addressed
in the InterCall Order, and The Conference Group and Cisco
WebEx each has the burden of establishing its standing. See
Am. Library Ass’n, 401 F.3d at 492–93 (citing Sierra Club, 292
F.3d at 899–901). Of the three elements of standing under
Article III of the U.S. Constitution — injury-in-fact, causation,
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and redressability — the Supreme Court has instructed that the
first requires a showing of “an invasion of a legally protected
interest which is (a) concrete and particularized, and (b) actual
or imminent, not conjectural or hypothetical.” Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal
citations and quotations omitted). If The Conference Group or
Cisco WebEx has shown the requisite injury, that it has shown
the other two elements is not in doubt here.
We hold that The Conference Group has standing to
challenge the Commission’s decision as procedurally unlawful
rulemaking, but lacks standing to challenge the merits of the
decision adopted in the InterCall Order if it was an adjudication.
In contending that the Commission engaged in unlawful
rulemaking, The Conference Group states that it “is ‘similarly
situated’ to InterCall, Inc., . . . the immediate subject of both the
USAC determination and the [InterCall] [O]rder at issue in this
case,” Pet’r. Br. at 4, as it too “provides audio, web, and video
conferencing services which allow multiple parties to
communicate with each other through an audio bridging
device,” id. at iv. It claims that it has suffered a concrete injury
because the InterCall Order “erroneously requires The
Conference Group now to make direct payments to the USF as
a provider of ‘telecommunications service’ based upon its
conference bridging service revenues, an obligation that has
significantly increased the cost of The Conference Group’s
overhead.” Id. at 14–15. For purposes of standing, the court
must assume The Conference Group would prevail on the merits
of its claim that the InterCall Order “improperly imposed new
legislative rules on the entire conference bridging industry
without providing the notice and comment safeguards required
by Section 553 of the APA,” id. at 25. See City of Waukesha v.
EPA, 320 F.3d 228, 235 (D.C. Cir. 2003) (citing Warth v. Seldin,
422 U.S. 490, 502 (1975)). So understood, The Conference
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Group has identified a cognizable harm to it as a result of the
InterCall Order in the form of additional financial costs and
regulation. See Sea-Land Serv., Inc. v. Dep’t of Transp., 137
F.3d 640, 648 (D.C. Cir. 1998). This injury-in-fact, its causation
and redressability show that The Conference Group has Article
III standing to challenge the InterCall Order as unlawful
rulemaking. The Conference Group has also established that it
has prudential standing, for “‘the interest it seeks to protect is
arguably within the zone of interests to be protected or regulated
by the statute . . . in question’ or by any provision ‘integral[ly]
relat[ed]’ to it.” Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 179
(D.C. Cir. 2012) (quoting Nat’l Petrochem. Refiners Ass’n v.
EPA, 287 F.3d 1130, 1147 (D.C. Cir. 2002) (quoting Ass’n of
Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153
(1970))); see Kowalski v. Tesmer, 543 U.S. 125, 129–130
(2004) (citing Warth v. Seldin, 422 U.S. 490, 499 (1975));
Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987).
The Conference Group lacks Article III standing, however,
to challenge the merits of the InterCall Order if it was an
adjudication. The court has rejected the view that “the mere
potential precedential effect of an agency action affords a
bystander to that action a basis for complaint.” Shipbuilders
Council of Am. v. United States, 868 F.2d 452, 457 (D.C. Cir.
1989); see Am. Family Life Assurance Co. v. FCC, 129 F.3d
625, 629 (D.C. Cir. 1997) (quoting Radiofone, Inc. v. FCC, 759
F.2d 936, 939 (D.C. Cir. 1985) (Scalia, J., sep. op.)); Sea-Land
Serv., 137 F.3d at 648; Gulf Oil Corp. v. Brock, 778 F.2d 834,
838 (D.C. Cir. 1985). Because The Conference Group’s claimed
injury was due merely to the unfavorable precedent created by
the InterCall Order, its “plea is essentially, a request for judicial
advice — a declaration that a line of agency rulings should
henceforth have no precedential effect.” Shipbuilders Council
of Am., 868 F.2d at 456.
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Although “merely foreseeable future litigation resulting
from a statutory interpretation that an agency has adopted in an
adjudication is ‘alone,’— i.e., without more — too speculative
to satisfy Article III's injury-in-fact requirement,” Teva
Pharmaceuticals USA, Inc. v. Sebelius, 595 F.3d 1303, 1313
(D.C. Cir. 2010) (citing Sea-Land, 137 F.3d at 648), there are
circumstances where the court has “allowed a party to challenge
in advance an agency policy adopted via adjudication when the
prospect of impending harm was effectively certain,” id. at
1314. For instance, Teva had sought a declaratory judgment in
the district court for a mandatory injunction that the Food and
Drug Administration (“FDA”) grant its generic drug application
so as to give Teva a statutory six-month period of market
exclusivity. Absent that grant Teva faced immediate
competition from other generic drug manufacturers with no
possibility of an adequate remedy on appeal. The court held that
Teva had standing to challenge FDA’s statutory interpretation
because “[a]ny imminent deprivation of Teva’s allegedly
deserved exclusivity would be directly attributable to the FDA’s
statutory interpretation,” and a declaratory judgment would
redress its injury. Id. at 1312.
Notably, in Teva, the FDA’s policy had been announced in
previous adjudications but Teva was not appealing the
adjudication of another party, as The Conference Group seeks
to do here. Rather, Teva brought its own action in the district
court. Moreover, in Teva the plaintiff could “point[] to a
particular imminent application of the disputed agency policy .
. . , the firmness of which is not in dispute, on a fast-arriving
date certain.” Id. at 1313. Here, The Conference Group does
not identify any imminent Commission enforcement action
against it. Finally, if the Commission decides to apply the rule
of decision in the InterCall Order to The Conference Group,
The Conference Group has the option to raise its substantive
arguments in its own adjudication. In Teva, by contrast, the
13
imminent threat was not the FDA’s decision but third-party
competition whose effects on the market a reviewing court
would be unable to unscramble, and it seems unlikely that Teva
could have obtained a stay to stop this presumably lawful third-
party conduct that the FDA declined to block. The situation
here is quite different, for The Conference Group can raise its
substantive argument before being forced to contribute to the
USF.
Cisco WebEx’s lack of standing to challenge both the
method of adopting and the merits of the InterCall Order is a
fortiori. Cisco WebEx states that “[t]he [InterCall] Orders
addressed a service . . . that differs significantly from WebEx’s
service, as InterCall’s service provides only audio bridging and
does not include any of the other advanced capabilities
[provided by Cisco WebEx].” Cisco WebEx Intervenor Br. at
3; see Cisco WebEx Rule 28(j) letter at 2 (Apr. 11, 2013). If it
is not “similarly situated” to InterCall, Inc., then it can claim no
injury from those orders. Cisco WebEx’s brief is silent on the
question of whether it has standing, but see Sierra Club, 292
F.3d at 900, and states, as relevant, only that it “is concerned
that the [InterCall] Orders may have adopted a classification
standard that, if given precedential value, would lead to
improper future classification decisions,” id. at 3. Before the
Commission its parent corporation similarly stated regarding the
InterCall Order: “[W]e think it is clear that the Commission did
not sub silentio narrow or modify its long-standing tests for
whether a service is functionally integrated and ‘alters the
fundamental character of [a] telecommunications offering,’” and
suggested only that “the Commission would do well to re-
emphasize that it was merely applying existing law, not
rewriting it.” Comments of Cisco Systems, Inc. at 4 (Sept 18,
2008) (quoting InterCall Order, 23 FCC Rcd. at 10735 ¶ 13).
These comments underscore the speculative nature of Cisco
WebEx’s “concern[].” As this court stated in Capital Legal
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Foundation v. Commodity Credit Card Corporation, 711 F.2d
253, 258 (D.C. Cir. 1983), a “sincere, vigorous interest in the
action challenged, or in the provisions of law allegedly violated,
will not do to establish standing” because to satisfy Article III
standing there must be an injury-in-fact. Cisco WebEx has
shown no “concrete and particularized” or “no[n] conjectural”
injury, Lujan, 504 U.S. at 560, stemming from the InterCall
Order.
Because neither petitioner The Conference Group, nor
Cisco WebEx as intervenor in support of petitioner, has standing
to challenge the merits raised in another party’s case, it follows
that defendant intervenor Verizon and Verizon Wireless, which
seeks to appear only to defend the merits of the Commission’s
decision in the InterCall Order, cannot have standing either.
III.
The Conference Group contends that the Commission
converted an unlawful decision by the USAC as to one audio
bridging provider’s contribution obligation into an industry-wide
legislative rule imposing new substantive duties on all audio
bridging service providers without adequate notice and
comment, in violation of APA section 553. For the following
reasons, we hold that the statutory interpretation by the
Commission in the InterCall Order was neither a legislative nor
an interpretative rule. Rather it was simply an interpretation
given in the course of an informal adjudication. Cf. Sugar Cane
Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 95–96 (D.C.
Cir. 2002); Harborlite Corp.v. ICC, 613 F.2d 1088, 1093 n.11
(D.C. Cir. 1979).
In interpreting and administering its statutory obligations
under the Act, the Commission has very broad discretion to
decide whether to proceed by adjudication or rulemaking. See
15
Qwest Services Corp. v. FCC, 509 F.3d 531, 536 (D.C. Cir.
2007); Time Warner Entm’t Co. v. FCC, 240 F.3d 1126, 1141
(D.C. Cir. 2001); see also 47 U.S.C. § 154(j). The InterCall
Order has none of the hallmarks of legislative rulemaking that
this court has identified, such as amending a prior legislative
rule or explicitly invoking the Commission’s general legislative
authority. See Am. Mining Congress v. MSHA, 995 F.2d 1106,
1112 (D.C. Cir. 1993); Fertilizer Institute v. EPA, 935 F.2d
1303, 1308 (D.C. Cir. 1991). In concluding that InterCall, Inc.
was required to make direct payments to the USF, the
Commission relied primarily on the statutory definitions of
“telecommunications” and “information service” as interpreted
in its Universal Service Orders and implementing regulations.
See InterCall Order, 23 FCC Rcd. at 10731-32 ¶¶ 2-3 (citing
Universal Service Orders First Report and Order, 12 FCC Rcd.
at 9183-84 ¶ 795, 9207 ¶¶ 846-47; Second Order on
Reconsideration, 12 FCC Rcd. at 18499-513, Appendix A). (In
the former, the Commission extended the USF contribution
obligation to private providers of interstate telecommunications,
see Universal Service First Report and Order, 12 FCC Rcd. at
9183-84 ¶ 795; the latter set forth how the amount of the
contribution is calculated and filed, see Second Order on
Reconsideration, 12 FCC Rcd. at 18499-513, Appendix A.) The
Commission also relied on its relevant classification precedent,
including that addressing when add-on features change
“transmission service” into an “information service.” See
InterCall Order, 23 FCC Rcd. at 10735 ¶ 13 (citing Prepaid
Calling Card Order, 21 FCC Rcd. at 7295-96 ¶¶ 14-15);
Reconsideration Order, 27 FCC Rcd. 898, 903-04 ¶¶ 12-13
(same).
The Commission thus proceeded as it had in the order under
review in AT&T v. FCC, 454 F.3d 329, 333 (D.C. Cir. 2006),
where the court viewed the Commission’s order classifying
AT&T’s prepaid calling cards for the first time to be an
16
adjudication. There, the court concluded that, as here, “[t]he
Commission’s rulings reflect a highly fact-specific, case-by-case
style of adjudication.” Here too, the Commission’s
classification order “is simply the latest application of this
approach,” id.The only remaining question is whether the Commission’s
inclusion of the “similarly situated” phrase in the InterCall
Order, 23 FCC Rcd. at 10731 ¶ 1, transmutes that adjudication
into a rulemaking. It does not. Without the phrase, the
precedential effect of the order would be the same. “[T]he nature
of adjudication is that similarly situated non-parties may be
affected by the policy or precedent applied, or even merely
announced in dicta.” Goodman v. FCC, 182 F.3d 987, 994 (D.C.
Cir. 1999); see also NLRB v. Bell Aerospace Co., 416 U.S. 267,
292 (1974); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 765–66
(1969) (plurality opinion); id. at 772 (concurring opinion).
Similarly, the statements in paragraphs 25 and 26 of the
InterCall Order, on which counsel for The Conference Group
focused during oral argument, elaborate upon the Commission’s
statutory interpretation of when a stand-alone service like
InterCall, Inc.’s is subject to direct USF contributions, but
represent no more than an interpretative precedent for the
Commission to apply. The fact that an order rendered in an
adjudication “may affect agency policy and have general
prospective application,” New York State Comm’n on Cable
Television v. FCC, 749 F.2d 804, 814 (1984) (quoting Chisholm
v. FCC, 538 F.2d 349, 365 (D.C. Cir. 1976)), does not make it
rulemaking subject to APA section 553 notice and comment.
The Commission, accordingly, could properly proceed by
adjudication in addressing for the first time the proper
classification of audio bridging service provided by InterCall,
Inc., cf. Bell Aerospace, 416 U.S. at 292–93, and was not
required to provide more notice than it did. The APA’s notice
and comment requirements do not apply (unless required by
17
statute) to “interpretative rules” or “general statements of
policy.” 5 U.S.C. § 553(b)(3)(A).
Accordingly, because the Commission rendered its
classification interpretation by adjudication rather than
legislative rulemaking, and because The Conference Group was
not a party to that adjudication and fails to show it has standing
to object to the merits of the adjudication, we dismiss in part and
deny in part The Conference Group’s petition for review.