PanAmSat Corp v. FCC

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.