Fones4All Corp. v. Federal Communications Commission

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FONES4ALL CORPORATION, 
Petitioner,
No. 06-75388
VERIZON; AT&T,
Intervenors, FCC No.
v.  WC05-261
OPINION
FEDERAL COMMUNICATIONS DENYING
COMMISSION; UNITED STATES OF REHEARING
AMERICA,
Respondents.

On Petition for Review of an Order of the
Federal Communications Commission
Argued and Submitted
September 12, 2008—Pasadena, California
Filed April 7, 2009
Before: Mary M. Schroeder and Johnnie B. Rawlinson,
Circuit Judges, and Brian E. Sandoval,* District Judge.
Opinion by Judge Schroeder
COUNSEL
Michael B. Hazzard, Washington, DC, for petitioner
Fones4All Corporation.
*The Honorable Brian E. Sandoval, United States District Judge for the
District of Nevada, sitting by designation.
4129
4130 FONES4ALL CORP. v. FCC
Scott H. Angstreich, Washington, DC, for the intervenors.
James M. Carr, Washington, DC, for respondents Federal
Communications Commission, et al.
OPINION
SCHROEDER, Circuit Judge:
Fones4All has filed a petition for rehearing and petition for
rehearing en banc, suggesting there is a conflict between the
opinion in this case, published at 550 F.3d 811 (9th Cir.
2008), and Great Falls Community TV Cable Co. v. FCC, 416
F.2d 238 (9th Cir. 1969), and Washington Utilities & Trans-
portation Commission v. FCC, 513 F.2d 1142 (9th Cir. 1975),
overruled on other grounds by Nevada v. Burford, 918 F.2d
854 (9th Cir. 1990).
In both of those cases, this court did in fact require the par-
ties to exhaust their administrative remedies, as we did here.
There is no direct conflict. Great Falls and Washington Utili-
ties do contain some language suggesting that this court has
discretion to refuse to defer to the Federal Communications
Commission (“FCC” or “Commission”), by not requiring
exhaustion, even though section 405’s exhaustion requirement
is statutory. In Great Falls this court stated that “section 405
is not inflexible,” 416 F.2d at 239, but then declined to reach
the merits of the petitioner’s claim because the Commission
had no opportunity to consider the question the petitioner
brought before the court, id. at 242-43. In Washington Utili-
ties this court reiterated that “section 405 is not inflexible,”
513 F.2d at 1167, but concluded that “the balance should be
struck against possible review,” id. at 1168. Accordingly,
although these two cases say that there could be a futility
exception to section 405’s exhaustion requirement, neither
case found one.
FONES4ALL CORP. v. FCC 4131
To the extent those early cases reflect a flexible attitude
toward exhaustion, however, they represent a prior era of
administrative law. Both predate Chevron USA v. Natural
Resources Defense Council, 467 U.S. 837 (1984), where the
Supreme Court emphasized that courts should generally defer
to administrative agencies’ expertise. The Supreme Court
later urged federal courts not to apply judicial doctrines, such
as futility, to statutory exhaustion requirements, where Con-
gress has “provided otherwise.” See Booth v. Churner, 532
U.S. 731, 741 n.6 (2001). Here, Congress has provided other-
wise by expressly stating that the FCC be given an “opportu-
nity to pass” on issues. 47 U.S.C. § 405. The D.C. Circuit has
more recently described this exhaustion requirement as one
that is “strictly construed” by that circuit. In re Core
Commc’ns, 455 F.3d 267, 276 (D.C. Cir. 2006). Any validity
that the disputed language in Great Falls and Washington
Utilities may once have had has been superseded by interven-
ing Supreme Court authority and is no longer binding. Miller
v. Gammie, 335 F.3d 889, 900 (9th Cir. 2005) (en banc).
For these reasons, there is no basis for granting the petition
for rehearing. The full court has been advised of the petition
for rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. The petition for rehear-
ing and rehearing en banc are denied.
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