Legal Case Summary

. So- And you filed something at that point, you object? We- no. Because I thought that Section 208B3 gave me the absolute right to treat that as the final order of the commission. It was- I mean, as an order of the commission, terminating the investigation, which is exactly what that order did. I just need to understand- I understand your point, but- but you didn't ever say to the commission. This is not- you must refer this to the full commission. Well, if- if I had done that, think about it. If I had filed like a petition for reconsideration with the bureau, then- then they could have sat on that for another couple of years. I mean, they were already way beyond the five-month statutory limit. And- But you hadn't filed anything objecting to that earlier, had you? Well, I hadn't known that they were going to treat- they were going to handle this bureau decision. I mean, you knew the five months had passed as my point. The five months, I- I continually told the commission staff, you know, there's a five-month limit here. And at one point, they said, oh, we didn't know that you expected us to comply with that. And I- I was sort of flabbergasted. So did you file something? So it's in writing. So we just don't have these oral representations. Well, certainly in the- well, one of the oddities of the way this thing was handled was there were a lot of sort of meanings between the commission staff and the litigants that were not on the record in that case. So that's one reason why I can't- That's why I asked if you filed it. I filed in- in the- in the initial brief that we filed with the bureau, or sort of- But that's the very end of the- sort of end of the process as the commission in its brief. Well, that was- that was at the end of sort of the fact- fact- finding process that the bureau undertook. They could at that point and should at that point have realized that we have to have the full commission rule on this. And also that we've got a fine limit that we should be paying some attention to. Yes, we did file that and that- and the commission even after we filed that, the bureau took another seven months, I think, to put the actual order, came out or walked. Yeah. Um, so are we done? Yeah, go ahead. Um, let me just say what bothers me about your theory here. Um, so, uh, assume- let's assume that, uh, your complaint implicates a 208B1 issue. Let's just assume that. That is charge classification regulation or practice, okay? I don't think you even have to assume that

. Well, why don't you just take it from my purposes? I don't see anything in 28B3. What- what in 28B3 or anywhere else suggests that that was intended to be an exception to the long standing principle in the statute in our case law that you can't come to this court without first taking your case to the commission? Just the- the- the very words of the statute because they say they say it is a final order. The action of the commission and what that means is, you know, they were trying to speed this up, right? So it means you don't have to file a petition for re-hearing before the commission. That's what it means. I- I mean, I just, you know, for- I mean, I just- I just don't see it there. Well, where is it? Well, think about this way. What Congress was trying to do was to- and they stated this in the legislative history that they were- they were trying to give the commission basically one bite at the apple to handle an investigation of this type of complaint. Well, they did that. That's what you got to do in five months, right? And the commission has to do it in five months. Yeah. And when it's done, you don't have to file a petition for re-hearing. That's what you do. So, I just expedite this. Yes. And- and any order that's right? It does expedite it. Okay. So- But any order that's issued terminating the investigation is a final order. By the commission. Well, but the- the- the problem here is the commission violated the rule that the commission was supposed to act on it in the first place. So then what did we do? You said the commission had never had delegated your funds? In this particular- in this particular type of complaint, yes. Because that's what- that's what Congress were saying. They said for this particular type of complaint, the commission cannot delegate it to a bureau. Well, it says- it says. I'm looking at- I'm looking at- the- one. Okay. Except it's right in Paragraphone. The commission- the commission shall with respect to any of these things, right? Do it within five months. And then three says any order that is in order of the commission, concluding an investigation, shall be a final order

. So that says the commission has to do it in five months, and its final order is a people. Well, I know- It isn't one here. Well, the- the- the problem you have here is the FCC is saying here- You're- you're relying completely on this section, right? Any order concluding an investigation? That's your whole case, right? Well, and I'm relying on the fact that the commission violated the law by- by screwing up the statutory scheme. In other words, they were supposed to issue- issue the decision in the first instance, and they didn't. So where does that leave us in terms of- That's an unreasonable delay claim, which didn't file. Yeah. In other words, let's assume you're right in order of assumption. You file a claim under the APA saying there's an unreasonable delay by the commission. Wherever it is in the- in this agency, they're supposed to be doing it within five months, and they haven't done it, and I'm petitioning the court for Monday, is really- Well, there certainly was an unreasonable delay, but you're right. We did not petition the court for that, and- And while it certainly bothers me that they ignored the- The- the five month requirement, what bothers me more is that instead of doing what the statute required, and making the decision themselves, they completely turned the statute on its head by letting the bureau do it, and then that created the- the need for an appeal within the commission. If you- if you ignore the- the- the language of B3, which is a standard- What the purpose of B3 was to tell the commission in these kinds of cases, presumably, that you better do this yourself, because you gotta get it done in five months. Well, but what- there wouldn't be any need for B3- think about this, Your Honor. Any- any- where of the full commission is a final order, which would be directly- No, no, no, you made that argument in the brief. But- but there wouldn't be any need, but if you look at it in context, there is a need for two AP, what it did was it provided that in the subset of cases they had to be handled expeditiously. That- that's what this adds. It- it's not surplusage at all. It wasn't- it- it's not just expedition, because the- the five month rule gives you the expedition. Well, so does- so does the- so does the- so does the opportunity to come here without filing a petition for re- hearing. That gives you a lot of expedition. What- it does, and if you don't- so you agree with me, right? It does. It does give you expedition, yes. And that's what the purpose of this provision was, you even agree with that, according your brief. So, you know, when you say, if- if we rule, if we- if we- if we agree with the commission, this whole provision is just surplus. It doesn't add anything that you're arguing with, right? It does add a dramatic- speeding up of cases that fall into this category. Well, it doesn't add anything if you assume that the commission is- is actually going to do with the statute required, which was to decide the case itself, which- Well, that goes back to Joe Edwards' question. You know, you could have asked the commission to expire or come here, but you didn't do that. There's definitely an expedition problem, but we're not- we're not so worried about that. What we were- what we're concerned about is the language of the statute that says any- any order by the commission terminating investigation is a final order

. And to me, that is as clear as Congress can possibly be that we're taking this out of the usual case where you have to go through the internal, you know, a field process. And it was for the reason that- that they didn't want to have- lit against have to have two bites at the apple. One of the bureau level and one of the commission level. So, do you see- so I'm clear- the five months start after the final officer exchange? No, they start when the complaint is filed. All right, that's what I thought you were. And it is- and to be honest with you, we didn't push the five months with the bureau that much because it's a tough, you know, a permanent permit for- for the commission to me. But what point did you think you were going to get to the commission? I thought the commission was going to issue the initial ruling, which is what the statute required. When they didn't do that, I assumed that- that- that Section 208B3, because it was a final order, because it was in an order terminating the case, was a final order. So you anticipated what- a recommended decision from the enforcement bureau to the commission? Yes, and I- I- I actually thought that the bureau was going to do that because this was a novel case. It was the first, you know, a rate case of this type that had ever been presented. And typically those have to be ruled on letter four commission anyway. So yes, it was a surprise. And once the bureau did issue its order, what can I do? If I followed a petition for reconsideration and two months had gone by, the commission could have come back and said, hey, that decision before was a final order, and you've now forfeited your right to go to court. No, then you can come to court. I'm sorry. I mean, I thought that- that Congress have been very clear about setting up a specific procedure to handle these cases, that- that 208B3, you know, the clear language of it says that if it's- if it's a order terminating a case, then that's a final order that we would be able to rely upon that. And for the commission to say, well, in these- in these paragraphs that we're talking about, it says the commission, not the delegated authority of the commission, everywhere in the- in the Communications Act it says the commission, including right in Section 208. It frequently- or it always says the commission shall- shall do something or may do something. And if the commission always handles that by delegated authorities rather than- By you assuming you could not contest what the enforcement bureau issued, you could not contest that with the commission? Um- That's your assumption. I'm not assuming that. I- I suppose I put it file to some sort of appeal of what the- what the bureau did. But I think- as I said, I think that would have put me in some peril, because- I think that's a question. Are you- is implicit in your argument that you could not- the bureau decision is yet it doesn't go to the commission, I could not appeal it to the commission. I had no such right. And you can't put me in a bind therefore in saying it's not final for judicial review. Are you saying you could not have taken it to the commission? No, I'm not saying that. I- That's the problem for you. Because if you acknowledge that it can be- to forget the delay, if you're acknowledging that it can be taken to the commission, in the case law and in certain legion, that we can act until the commission has issued something flat, you're not arguing that the bureau's decision- in fact, you're not arguing that the bureau's decision is final

. Because you acknowledge that the commission could have been petitioned. No. I'm saying it is final because of the particular character of the order that was issued. That's what I thought you're arguing. Why the order, because it's said- by the commission. I mean by the bureau on behalf of the commission. The commission hereby issues this order or decision by the enforcement division. So you took that to be the commission's decision. Yes, because that was the only decision that I had. I mean, how did you just say to me yes, I could have appealed to the commission? Well, because, you know, there is an appellate process within the commission. Well, that's your problem. There really is an appellate process. You're a commission, so I must say it's a little bit confusing. There is. Well, I would've thought if there is an appellate process, it's just all administrative law that you don't follow it. The delay question is a different question. That's a different APA challenge. On reasonable delay, I'm going to take on the agency now. They're playing games with this provision as your claim. And they're never meeting the five more than I'm now trapped in it too. And I want mandamus for the moment. That's a different. Well, if you have a right of appeal, if you're acknowledging yes, I can go to the commission. And then when they say something is final, then that kills your case. Because we don't have authority to hear. Well, remember, Judge Edwards, you can have a final decision, even with the full commission. And you can still file a petition for reconsideration. It's not final if reconsideration is required

. If reconsideration is required in a administrative statute, you don't have a final decision. Well, I'm not saying it's I'm not saying it's required. Well, then you don't have to go to the agency and you can come to court. It all depends on whether the reconsideration is required. If it is required, yes, you have to pursue it before you can come to court. But if it's not required, when you do not have to avail yourself of it, it's required. But you may. And I think what you were saying was that as long as I could possibly have appealed it to the full commission, even though it was a final decision that I was precluded from the last. The case law says an under these statutes under 55, 155, the following of an application reviewed by the commission of condition to judicial review. That's absolutely true. And this cannot be viewed. I don't think is anything but an exception to that because it's specifically what's the exception because it specifically says any order. I'm going to talk to you back to the two. Yeah, yeah, we can't honestly how you get to two or three because that's referring to one and two and one and two are referring to the commission. I mean, that's a weak argument. But it's a weak argument because three refers to one and two and one and two clearly say the commission. Well, but when you say the commission, you're out of your saying the commission is though it doesn't include the delegated authorities were everywhere else that I'm trying to bring you back to what I think is the underlying question here. You would be fine if you would meet the one. If you are right that the bureau's decision on behalf of the commission is a commission decision, then you'd be fine. In my view, but I'm confused about what your theory is and what and I'm confused about what the agency's responsive. Well, what I'm saying is it is a final decision of the commission. So I don't know what you call that a decision of the commission or who you call it a decision by, but if it's the final decision of the agency, that's I think what we need to focus on. I think that's what Congress intended, but the problem you face is the non delegation provision Congress enacted. Well, I mean, you acknowledge that in your brief. Well, I mean, the commission created this whole problem by by the way. I mean, that's that's the problem here. I don't think that is correct. I'm not suggesting everything was perfect here, but it seems to me you file a complaint

. And you have to say what you want and what provision you are proceeding under. And I did we said we were filing our complaint under sections to a one and to a two of the act and the commercial. I understand so where is the commission on notice that you think this is a five month proceeding because section 208 is the part of the act that I agree. Don't you have to say that somewhere. In other words, a complaint comes in. No, I'm quite serious about this and maybe this is a problem for the commission in terms of its internal rules. But it can't be that you can negotiate for years and then all of a sudden say to the commission, well, your five months was up three years ago. I didn't say that. And I know you didn't this is my hypothetical. But at some point if you want to go under this expedited proceeding, don't you have to make it clear that your complaint is to be processed under that. And if it isn't either you file something before the commission or you come to the court and say the commission is acting beyond its authority. I mean, it's an odd situation. Well, actually, it seems to me just to pick up on what Judge Rogers is saying here. I mean, I think your problem is even a little more serious because so am I right? You didn't say to the commission. This was a two o a p case. Right. I said it was a complaint about a common carrier. Read the presentation. That's okay. But why are theories been, but what do you do? But why? The 155 says, 155 says, when necessary, the proper functioning of the HC, the commission may delegate any of its functions. And then it says accept any action and one of them is to a B. So if you thought this was a two o a p case, why didn't you tell the commission the moment it sent this to the bureau, you can't do that. Because the, do you see my point? Yeah. I mean, that would have been the place to put the commission on notice that it had to get this done within five months, but it couldn't delegate it. Well, I actually didn't anticipate or expect that the five commissioners would be handling, you know, the processing of this complaint. But why not? You have to be thinking that. Yeah. So I know there's actually a rule at section 0

.331, which tells the enforcement bureau what authority it has. And it says it, it, it, in cases of two, two, eight, the complaints, it, it has to refer the decision of the full commission. That's what I thought would happen if they would gather the facts. They would conduct a proceeding. They might even make a recommendation, but the decision would be made by the full commission, which is what the commission's own internal delegation of authority. Rules require. They didn't do that. That was, that was at the end of this whole process that you've described. Judge Rogers, where we went back and forth, there were discussions, there were mediations, there were, there were interrogatories and so forth. And I thought it was appropriate for the bureau to be handling that, but the decision was supposed to be made by the full commission. I guess I just don't understand the process in terms of if you want to decision by the full commission in five months. You have to start there. All right. Ah. And if you're going to work with the commission through a delegation, that's a different procedure. That's all I'm trying to understand. If Congress had in mind, we want this done in five months. The commissioners have to be on notice. They've got to readjust their docket. But I didn't think that I had, well, first of all, I actually did tell the bureau this as I said and they said, oh, we didn't know that you wanted that. But I actually knew that I had to tell them that the statute requires you to do something. Even in the district court, you file a complaint. And if you want some expedited processing, you tell the district court that. Otherwise, you get in line. But if there's a statute that says, Well, I'll suppose there is a statute. Suppose there is a statute. Yeah. I mean, I'm thinking of a district court hypothetical

. You say the district court this has, we have cases where the statute tells us we have to act within 72 hours. All right. And that statute is cited to us. No one assumes, you know, we remember that in the back of our head. That's all I'm getting at. Okay. And really, I'm not complaining that much about their failure to act on it within five months. What I am saying is I think that once the bureau took it upon itself to violate the statute and issue a decision to. But that's the point at which it seems to me you have to say something. Well, I said something seven months before that. In writing. In writing, I said it several years ago. Where was it? That was at the end of my initial brief. Oh, I know. That's way down the. I know. That was. But this was the initial brief before the bureau. I understand, but you have been negotiating this. When you filed your complaint. In 2013. That's right. Okay. And when did you file your first brief? It was like 2015. That's right. That's not. But Judge Rogers, I'm not. No way the commission could act within five months

. But I'm not complaining about that. All I'm saying here is that I mean, I wanted a decision from the commission. From somebody at the commission. It's the full commission should have acted on it, but it didn't. The bureau acted on it. And B3 says anywhere terminating in cases. Well, the argument might be that you had a chance when your complaint was filed to insist on a 208B process. All right. You didn't. But there's no other process to that I could. That's all there is. That's all the act. You know, affords are complaining that's challenging a comment. I'm sure you're right. I'm done. All right. Let us hear from the commission and then we'll give you some time. All right. Thank you. Good morning. May it please the Court, Maureen Flunned for the Federal Communications Commission. Can you, we, for you, start? That's right. Yes. Could you please tell us? Because you had, looking at your responses. Right. I don't know what you mean to say. I don't mean to say. Is this the matter that's in dispute here within the compass of non-delegate authorities or delegatable authorities from the 155? It is within, it is encompassed within delegated authorities because NTCH's complaint was not subject to section 208B. Well, there was one part of it that you had shown and you said, well, we haven't really decided that. And that's what's confusing me. Like one piece of it may have been within non-delegated. I mean, you're not taking a clear position, which is not really not acceptable. Well, Your Honor, we're not taking a clear position because the commission has never decided on that issue. So let me start by saying the data roaming portion of NTCH is complaint clearly was not subject to section 208B. In fact, it wasn't subject to section 208 because when NTCH filed its complaint, data roaming was a Title I service. And it could be delegated. That one could be delegated. And in fact, the commission has a rule, 20.12E, that sets up a specific process outside section 208 to resolve data roaming complaint. So let's assume that. Let's assume at least some portion of this case is within the permissible delegated authority. So it could go into the Bureau. Yes. What does that mean? Does that mean that when the Bureau issues its order as far as the commission is concerned, it's over? No, Your Honor. Well, first of all, the data roaming, are we talking about the data running person? Talk about whatever you think we can come back to. Let's talk about voice. Whatever you think could be delegated in this case. Okay. Stay there first. Okay. So you think part of it could be delegated to the Bureau, right? The data roaming portion because it fell outside section 208. Okay. So you think it could be delegated when the Bureau issues its decision. Is that it? The commission's done? No, Your Honor. First of all, it's not subject to section 208, but Your Honor to answer that specific question under the data roaming rule, which says a complaint process. Outside section 208, a Bureau order like any other order could have to be

. Well, there was one part of it that you had shown and you said, well, we haven't really decided that. And that's what's confusing me. Like one piece of it may have been within non-delegated. I mean, you're not taking a clear position, which is not really not acceptable. Well, Your Honor, we're not taking a clear position because the commission has never decided on that issue. So let me start by saying the data roaming portion of NTCH is complaint clearly was not subject to section 208B. In fact, it wasn't subject to section 208 because when NTCH filed its complaint, data roaming was a Title I service. And it could be delegated. That one could be delegated. And in fact, the commission has a rule, 20.12E, that sets up a specific process outside section 208 to resolve data roaming complaint. So let's assume that. Let's assume at least some portion of this case is within the permissible delegated authority. So it could go into the Bureau. Yes. What does that mean? Does that mean that when the Bureau issues its order as far as the commission is concerned, it's over? No, Your Honor. Well, first of all, the data roaming, are we talking about the data running person? Talk about whatever you think we can come back to. Let's talk about voice. Whatever you think could be delegated in this case. Okay. Stay there first. Okay. So you think part of it could be delegated to the Bureau, right? The data roaming portion because it fell outside section 208. Okay. So you think it could be delegated when the Bureau issues its decision. Is that it? The commission's done? No, Your Honor. First of all, it's not subject to section 208, but Your Honor to answer that specific question under the data roaming rule, which says a complaint process. Outside section 208, a Bureau order like any other order could have to be. No way. It's important. Don't say could. Well, has to be. It's real. That's one of the problems here. It's mustard or they don't know. Obviously. And I'm not sure any of us do either. When the Bureau issues an order, is there some statutory or regulatory provision that says, no matter how strong the language is in that order, it is not final. Unlessonant or commission acts on it. There is no exception to the requirement in section 150 or in section 5C7 of the act. An application for review to the full commission as a condition precedent to judicial review of an order issued on delegated authority. Council for NTCH is trying to assert that section 208 be three. No, no, we understand that what he's really asserting fairness to him is the language in the order looks like this is a commission. We're issuing this on behalf of the commission. As if to suggest it's done. There's nothing there. It seems to me it would be fair, apart from the five months that you never meet. To say. And if you don't like it, you have to appeal to the commission otherwise you can't go to court. Your Honor, it's an order issued on delegated authority and there's no exception from five C7 of the act to revive that. An order by the enforcement bureau resolving a Roman complaint or any other complaint is exempt from section 5C7 of the act. I'm just trying to understand what folks on his petitioner's side are facing. They get an order. It looks like it's fine. It says on behalf of the commission. This is it

. No way. It's important. Don't say could. Well, has to be. It's real. That's one of the problems here. It's mustard or they don't know. Obviously. And I'm not sure any of us do either. When the Bureau issues an order, is there some statutory or regulatory provision that says, no matter how strong the language is in that order, it is not final. Unlessonant or commission acts on it. There is no exception to the requirement in section 150 or in section 5C7 of the act. An application for review to the full commission as a condition precedent to judicial review of an order issued on delegated authority. Council for NTCH is trying to assert that section 208 be three. No, no, we understand that what he's really asserting fairness to him is the language in the order looks like this is a commission. We're issuing this on behalf of the commission. As if to suggest it's done. There's nothing there. It seems to me it would be fair, apart from the five months that you never meet. To say. And if you don't like it, you have to appeal to the commission otherwise you can't go to court. Your Honor, it's an order issued on delegated authority and there's no exception from five C7 of the act to revive that. An order by the enforcement bureau resolving a Roman complaint or any other complaint is exempt from section 5C7 of the act. I'm just trying to understand what folks on his petitioner's side are facing. They get an order. It looks like it's fine. It says on behalf of the commission. This is it. Why doesn't that order say this is what we think if you want to contest it, you go to the commission. Otherwise you're not going to be able to go to court. Why don't you give them that notice? Because your Honor, the order says it is by the enforcement bureau not by the commission. It says on behalf of the commission. On behalf of the commission, but that's when every order issued on delegated authority. That doesn't mean they're fair. That means that's what you're doing. One of the S's, he's wanted to do something that's fair, which says we're doing this on behalf of the commission. But if you want to appeal a commission, you can't add if you think you want to get the court, you must. Your Honor, every issue, every order issued on delegated authority says issued by the enforcement bureau, the media bureau, it's well established that there is no exception to the application for review requirement in Section 5C7. This order is no different than any other order, resolve and complaint any force that you're on. The statute gives them notice, Your Honor. All right, let's turn it to voice if you will. I'll turn it to your moment. All right. I come in with my complaint. All right. I want an expedited proceeding. All right. What happens? Well, first of all, as you pointed out, the petitioners in their complaint did not vote. What's the press they had? We're asking you the question. What happens? What someone brings a case, it clearly falls under 208B. Okay. What does the commission do? This is not that case, but if it can be still, we'll be in a second. Thank you. We'll be in a second. You heard a struggling from the pellet. In this case, fell under Section 208B or any case, falling under Section 208B

. Why doesn't that order say this is what we think if you want to contest it, you go to the commission. Otherwise you're not going to be able to go to court. Why don't you give them that notice? Because your Honor, the order says it is by the enforcement bureau not by the commission. It says on behalf of the commission. On behalf of the commission, but that's when every order issued on delegated authority. That doesn't mean they're fair. That means that's what you're doing. One of the S's, he's wanted to do something that's fair, which says we're doing this on behalf of the commission. But if you want to appeal a commission, you can't add if you think you want to get the court, you must. Your Honor, every issue, every order issued on delegated authority says issued by the enforcement bureau, the media bureau, it's well established that there is no exception to the application for review requirement in Section 5C7. This order is no different than any other order, resolve and complaint any force that you're on. The statute gives them notice, Your Honor. All right, let's turn it to voice if you will. I'll turn it to your moment. All right. I come in with my complaint. All right. I want an expedited proceeding. All right. What happens? Well, first of all, as you pointed out, the petitioners in their complaint did not vote. What's the press they had? We're asking you the question. What happens? What someone brings a case, it clearly falls under 208B. Okay. What does the commission do? This is not that case, but if it can be still, we'll be in a second. Thank you. We'll be in a second. You heard a struggling from the pellet. In this case, fell under Section 208B or any case, falling under Section 208B. What would happen is the enforcement bureau would immediately notify the commission that it has a Section 208B complaint and it would create an expedited administrative process so that the bureau would send a recommendation up to the commission in an order for the commission to vote within five months. Is that a rule? There is no rule. In fact, on that, but the enforcement bureau is going to codify one. But that is practiced, particularly. So when this complaint came in, and just thinking about this case, I thought bureaucratically, it was assigned to the enforcement division. All right. Yes. And the first brief file talks about 208B. The first brief, yes. Your brief says that. Okay. So then my question is, what happens then? So the first time a petitioner raised the 208B issue was 22 months into the procedure. I'm with you, Council. I read your brief and what you said at the end of the process, I'm not debating that. Right. I want to know in the first brief that's filed, Council says 208B. Now what happens? At that point, the enforcement bureau considered continued under its presumption that the data roaming piece was not subject to 208, and that the voice roaming piece was subject to section 208A. Because that was their assumption at the beginning of the procedure. Based on the fact that two things. The commission itself had never ruled on the issue of whether voice roaming was subject to section 208A or section 208B. So the bureau had to look for guidance in the commission's rules and precedent. The commission had in prior orders interpreted section 208B to only apply to services that were tariffed or could have been tariffed. CRRS services were de-tariffed back in 1993. So the commission, this is also mentioned in the Oral Off case, which we cite in our brief. So the bureau reasonably determined that the case was subject to section 208, and petitioner did not dispute that fact. Petitioner after the five-month period passed, if this was a commission, if it completely had to be reviewed by the commission because it was a section 208B complaint, presumably the petitioner would have come in and asked the enforcement bureau to refer the matter to the commission at that point or at least raise the issue with the enforcement bureau. It didn't, as you pointed out, this is an unreasonable delay. So when you file a complaint with the FCC, it automatically is referred to the enforcement bureau

. What would happen is the enforcement bureau would immediately notify the commission that it has a Section 208B complaint and it would create an expedited administrative process so that the bureau would send a recommendation up to the commission in an order for the commission to vote within five months. Is that a rule? There is no rule. In fact, on that, but the enforcement bureau is going to codify one. But that is practiced, particularly. So when this complaint came in, and just thinking about this case, I thought bureaucratically, it was assigned to the enforcement division. All right. Yes. And the first brief file talks about 208B. The first brief, yes. Your brief says that. Okay. So then my question is, what happens then? So the first time a petitioner raised the 208B issue was 22 months into the procedure. I'm with you, Council. I read your brief and what you said at the end of the process, I'm not debating that. Right. I want to know in the first brief that's filed, Council says 208B. Now what happens? At that point, the enforcement bureau considered continued under its presumption that the data roaming piece was not subject to 208, and that the voice roaming piece was subject to section 208A. Because that was their assumption at the beginning of the procedure. Based on the fact that two things. The commission itself had never ruled on the issue of whether voice roaming was subject to section 208A or section 208B. So the bureau had to look for guidance in the commission's rules and precedent. The commission had in prior orders interpreted section 208B to only apply to services that were tariffed or could have been tariffed. CRRS services were de-tariffed back in 1993. So the commission, this is also mentioned in the Oral Off case, which we cite in our brief. So the bureau reasonably determined that the case was subject to section 208, and petitioner did not dispute that fact. Petitioner after the five-month period passed, if this was a commission, if it completely had to be reviewed by the commission because it was a section 208B complaint, presumably the petitioner would have come in and asked the enforcement bureau to refer the matter to the commission at that point or at least raise the issue with the enforcement bureau. It didn't, as you pointed out, this is an unreasonable delay. So when you file a complaint with the FCC, it automatically is referred to the enforcement bureau. It goes to the, it's filed with the enforcement bureau. No, no, I just need to know. I'm out of town. Or I'm practice of broad. I file a complaint with the FCC. I mail it to the FCC. What happens? It goes to the enforcement bureau. So it automatically goes to the enforcement bureau. Yes, the commissioners legal advisers don't decide these complaints. I understand that. I want to know, so I get a notice that this is now before the enforcement division. Yes, that right? So at that point, is it the commission's position that I am obligated to tell the enforcement division I want to proceed under 208B? It certainly helps the process, but putting that aside, Your Honor, one of the issue here is, can this court assert jurisdiction over this order, notwithstanding the restriction in Section 5C7 to remedy this alleged error that was made? Hold on. Hold on. Hold on. I'm not even there. I'm still before the commission. My complaint has been administratively sent over to the enforcement division. I say in writing to the enforcement division, my complaint is to be processed under 208B. Then what happens? In that circumstance, the enforcement bureau would determine whether or not it's the Section 208B complaint, and if it believed that it was, it would send it, it would let the commission know that there was a 208B complaint, it would put it on a fast track administrative process so the commission could vote and order before the five month period. And that's all set out in the rule somewhere? It's not set out in the rules. It is a bureau level practice. All right. So when do I get notice that the enforcement bureau has decided my complaint is not a 208B complaint? The enforcement bureau would get back to you immediately because if they dispute it, they send me a letter. They would most likely call you because at that point, if you file your complaint, they would want to give you an immediate response. And so my understanding is that they would call you and that if you disputed their determination that it was not subject to Section 208B, that they at that point probably would issue a written letter or something like that so you could challenge it up to the full commission. Now, historically, do you know whether or not the enforcement bureau has been taking the position that the word tariff or like proceeding basically doesn't apply to this type of complaint against an individual entity's rates? It's not just the rates, Your Honor. It's voice roaming and data roaming, right? Although actually I'm only talking about voice. All right

. It goes to the, it's filed with the enforcement bureau. No, no, I just need to know. I'm out of town. Or I'm practice of broad. I file a complaint with the FCC. I mail it to the FCC. What happens? It goes to the enforcement bureau. So it automatically goes to the enforcement bureau. Yes, the commissioners legal advisers don't decide these complaints. I understand that. I want to know, so I get a notice that this is now before the enforcement division. Yes, that right? So at that point, is it the commission's position that I am obligated to tell the enforcement division I want to proceed under 208B? It certainly helps the process, but putting that aside, Your Honor, one of the issue here is, can this court assert jurisdiction over this order, notwithstanding the restriction in Section 5C7 to remedy this alleged error that was made? Hold on. Hold on. Hold on. I'm not even there. I'm still before the commission. My complaint has been administratively sent over to the enforcement division. I say in writing to the enforcement division, my complaint is to be processed under 208B. Then what happens? In that circumstance, the enforcement bureau would determine whether or not it's the Section 208B complaint, and if it believed that it was, it would send it, it would let the commission know that there was a 208B complaint, it would put it on a fast track administrative process so the commission could vote and order before the five month period. And that's all set out in the rule somewhere? It's not set out in the rules. It is a bureau level practice. All right. So when do I get notice that the enforcement bureau has decided my complaint is not a 208B complaint? The enforcement bureau would get back to you immediately because if they dispute it, they send me a letter. They would most likely call you because at that point, if you file your complaint, they would want to give you an immediate response. And so my understanding is that they would call you and that if you disputed their determination that it was not subject to Section 208B, that they at that point probably would issue a written letter or something like that so you could challenge it up to the full commission. Now, historically, do you know whether or not the enforcement bureau has been taking the position that the word tariff or like proceeding basically doesn't apply to this type of complaint against an individual entity's rates? It's not just the rates, Your Honor. It's voice roaming and data roaming, right? Although actually I'm only talking about voice. All right. Okay. So I have tried to make that clear from the beginning. Okay. With respect to the voice roaming rates, Petitioner's Council is correct that this was the first formal voice roaming complaint filed with the commission. So it was an issue that the enforcement bureau was dealing with for the first time. It had to follow commission precedent and commission precedent said that Section 208B broadly only applies to tariff services or services that could have been tariffed. The enforcement bureau reasonably determined that because CMRS services were detaired in 1993 that this was a Section 208 case. 208 case. So there is no way to move this type of complaint under 208B. That's correct, Your Honor. And if Petitioners believed, again, that this was subject to Section 208B presumably they would have raised that with the enforcement bureau or they would have raised it with the commission. And they could have if the agency did not respond to that argument quickly enough filed a petition for a rid of mandamus with the court. Now if Petitioners think that the commission, that the enforcement bureau rather got it wrong in deciding their complaint under Section 208A, they should raise that issue in an application for review before the full commission. But the enforcement bureau acting on delegated authority had to do the best that it could. But Petitioner never put Section 208, never invoked Section 208B wanted its complaint. And it never disputed the fact that the enforcement bureau was proceeding and exceeded the Section 208B deadline. Did they notice that? Did they know that that's how they were proceeding? Did they know that they got noticed? I do not know that they got noticed, but presumably if they thought it was subject to Section 208B they would have raised it. I understand your argument there. I'm really trying to just think about the administrative process which is for those of us who consume your processes, which seem to be less than ideal. They don't have notice of this. You say there is no codification of these procedures you're now talking about. So none of this is known to anybody. Where are the cases of being tracked and what the time required was all. At that point there were no formal rules. That's correct. Is my understanding that the enforcement bureau to avoid confusion is going to codify rules? That being said your honor. If the petitioners again thought that this was a Section 208B case presumably they would have raised it. I mean the enforcement bureau had to make a determination on the basis of the complaint whether or not this is a Section 208A or Section 208B complaint

. Okay. So I have tried to make that clear from the beginning. Okay. With respect to the voice roaming rates, Petitioner's Council is correct that this was the first formal voice roaming complaint filed with the commission. So it was an issue that the enforcement bureau was dealing with for the first time. It had to follow commission precedent and commission precedent said that Section 208B broadly only applies to tariff services or services that could have been tariffed. The enforcement bureau reasonably determined that because CMRS services were detaired in 1993 that this was a Section 208 case. 208 case. So there is no way to move this type of complaint under 208B. That's correct, Your Honor. And if Petitioners believed, again, that this was subject to Section 208B presumably they would have raised that with the enforcement bureau or they would have raised it with the commission. And they could have if the agency did not respond to that argument quickly enough filed a petition for a rid of mandamus with the court. Now if Petitioners think that the commission, that the enforcement bureau rather got it wrong in deciding their complaint under Section 208A, they should raise that issue in an application for review before the full commission. But the enforcement bureau acting on delegated authority had to do the best that it could. But Petitioner never put Section 208, never invoked Section 208B wanted its complaint. And it never disputed the fact that the enforcement bureau was proceeding and exceeded the Section 208B deadline. Did they notice that? Did they know that that's how they were proceeding? Did they know that they got noticed? I do not know that they got noticed, but presumably if they thought it was subject to Section 208B they would have raised it. I understand your argument there. I'm really trying to just think about the administrative process which is for those of us who consume your processes, which seem to be less than ideal. They don't have notice of this. You say there is no codification of these procedures you're now talking about. So none of this is known to anybody. Where are the cases of being tracked and what the time required was all. At that point there were no formal rules. That's correct. Is my understanding that the enforcement bureau to avoid confusion is going to codify rules? That being said your honor. If the petitioners again thought that this was a Section 208B case presumably they would have raised it. I mean the enforcement bureau had to make a determination on the basis of the complaint whether or not this is a Section 208A or Section 208B complaint. And given the commission precedent they reasonably put an under Section 208A. Part of this issue could have been avoided if petitioners told the enforcement bureau when they found they're complaint whether they thought this was a Section 208A or Section 208B case. And so your point is that the bureau would have advised that this simply is not a is not 208B eligible. That's correct. I just have both of your. That's correct. Based on what? How do you make that a session? How do you know that the bureau moved the virus to a different level than that? Because your honor is the commission's it was the bureau's because the bureau proceeded under Section 208A. No, no, no, that's not my question. How do you know that they would have advised to know this is what we're doing? We're not going to do what you prefer. Because there are no processes in effect. There are no processes I cannot. You don't know. I don't know your honor. I don't know. I mean that's the unfairness of all of this that different from the legal questions that we're facing. But it's just patently unfair that those who are petitioning permission have no idea of all the things that you've asserted. Well, your honor, if it's unfair than the petitioner's the trial and advocacy for a view of the commission. The point that attorneys could do and spend more billable hours trying to sort through this. I'm just trying to understand why in heaven's name you don't have procedures laid out so they will understand what they're facing. I understand that, your honor, but presumably if petitioner thought that this complaint was subject to Section 208B1, they would have raised it with the enforcement bureau. And what this really boils down to here is petitioners saying, I am harmed by the enforcement bureau's decision to process my complaint under Section 208A. The delay was unreasonable and I am asking the court to remedy the enforcement bureau's error by circumventing the requirement in Section 5C7 that I file an application for review. And having you here in my case, if the petitioner was so concerned about delay, and I know I keep hammering this point, but it begs the question of why they didn't come in and tell the enforcement bureau at five months and one day that they thought their complaint was a Section 208B1 complaint, and that they wanted it referred to the full commission. Instead they decided to adopt this novel reading of Section 208B3, which is not an exception from Section 5C7 of the Act. There's nothing in Section 208B that refers to bureau level orders. Well, hopefully, powers that be are going to provide some notice such that you just say voice roaming is not eligible because it's de-tariff. And neither is data because it's under Title 1, so 208 is not available. And then that can be challenged and we'll go from there

. And given the commission precedent they reasonably put an under Section 208A. Part of this issue could have been avoided if petitioners told the enforcement bureau when they found they're complaint whether they thought this was a Section 208A or Section 208B case. And so your point is that the bureau would have advised that this simply is not a is not 208B eligible. That's correct. I just have both of your. That's correct. Based on what? How do you make that a session? How do you know that the bureau moved the virus to a different level than that? Because your honor is the commission's it was the bureau's because the bureau proceeded under Section 208A. No, no, no, that's not my question. How do you know that they would have advised to know this is what we're doing? We're not going to do what you prefer. Because there are no processes in effect. There are no processes I cannot. You don't know. I don't know your honor. I don't know. I mean that's the unfairness of all of this that different from the legal questions that we're facing. But it's just patently unfair that those who are petitioning permission have no idea of all the things that you've asserted. Well, your honor, if it's unfair than the petitioner's the trial and advocacy for a view of the commission. The point that attorneys could do and spend more billable hours trying to sort through this. I'm just trying to understand why in heaven's name you don't have procedures laid out so they will understand what they're facing. I understand that, your honor, but presumably if petitioner thought that this complaint was subject to Section 208B1, they would have raised it with the enforcement bureau. And what this really boils down to here is petitioners saying, I am harmed by the enforcement bureau's decision to process my complaint under Section 208A. The delay was unreasonable and I am asking the court to remedy the enforcement bureau's error by circumventing the requirement in Section 5C7 that I file an application for review. And having you here in my case, if the petitioner was so concerned about delay, and I know I keep hammering this point, but it begs the question of why they didn't come in and tell the enforcement bureau at five months and one day that they thought their complaint was a Section 208B1 complaint, and that they wanted it referred to the full commission. Instead they decided to adopt this novel reading of Section 208B3, which is not an exception from Section 5C7 of the Act. There's nothing in Section 208B that refers to bureau level orders. Well, hopefully, powers that be are going to provide some notice such that you just say voice roaming is not eligible because it's de-tariff. And neither is data because it's under Title 1, so 208 is not available. And then that can be challenged and we'll go from there. That's correct. That would give the commission an opportunity to pass on this policy issue of... Because at this point, it's difficult to see what is going to reach the commission under 208B. And there was some purpose that Congress had in mind. That's all we're getting at. I understand, Your Honor. All right. Thank you, Council. Thank you. Councillor, Councillor for the intervener? I think Councillor for the intervener has a couple of minutes. May I please the court, David Haga for intervener Verizon. And Verizon does not have a position. I was going to say, yes, so I'd be happy to address the underlying merits of a court would like. No, I think not. All right. Thank you. Thank you. All right. Councillor for petition. Your Honor, I do have to take issue with one of the statements that the Council for the FCC made. The application of 208B applies to common carrier charges that either are tariffed or would have been tariffed for... But forbearance by the commission. And back in 1994, the commission expressly stated that it was forbearance from, you know, required tariff requirements on mobile services like this. So it was a precise case where the commission said this would have been tariffed or forbearance

. That's correct. That would give the commission an opportunity to pass on this policy issue of... Because at this point, it's difficult to see what is going to reach the commission under 208B. And there was some purpose that Congress had in mind. That's all we're getting at. I understand, Your Honor. All right. Thank you, Council. Thank you. Councillor, Councillor for the intervener? I think Councillor for the intervener has a couple of minutes. May I please the court, David Haga for intervener Verizon. And Verizon does not have a position. I was going to say, yes, so I'd be happy to address the underlying merits of a court would like. No, I think not. All right. Thank you. Thank you. All right. Councillor for petition. Your Honor, I do have to take issue with one of the statements that the Council for the FCC made. The application of 208B applies to common carrier charges that either are tariffed or would have been tariffed for... But forbearance by the commission. And back in 1994, the commission expressly stated that it was forbearance from, you know, required tariff requirements on mobile services like this. So it was a precise case where the commission said this would have been tariffed or forbearance. And that leads it squarely within the 208B, you know, Baileywick. And the business about us having to tell the commission that we wanted it to be under... Well, first of all, the commission is saying so they took this under 208A because they thought it was not a previously tariff service that had been forborn from. That's plainly wrong. And the commission never at any point told me or anybody else involved in the case that they were treating this as a 208A case. This whole procedure that was described to you, Your Honor, is just... It's absolutely news to me. Nobody ever told me about it. And I've got another companion case that's coming up the five point. I just don't understand why when you look at the statute and you follow your complaint, you wouldn't say to the commission, I'm filing this under 208B. Well, I said I was filing it under 201 and 202 and 208B is the part of the statute that handles 201 and 202 complaint. But how would the commission know that it was supposed to expedite unless you told them that you thought this was a rate of one of these four things? Because it was because 201B... You agree. It would have been... If you had done it, you would have been... Were you here for our last argument? Yes, I was. Same time. We could have avoided this whole thing

. If you would simply said, this is a 208 case. I didn't think I needed to tell the commission. That's exactly what council said in our asking. Well, it was a case that involved a challenge to the reasonableness of a common curial rate. That's to a 208B bond. I didn't have to tell the commission. Well, in any event, we'll take the case under advised