The opinion
On Petition for Rehearing
Opinion for the Court filed by Circuit Judge ROBB.
ROBB, Circuit Judge:
The American Telephone & Telegraph Company (AT&T) seeks a rehearing, asserting, among other things, that this panel erred in (1) reviewing the decision of the FCC to accept the TELPAK rate filing and (2) ordering the FCC to reject the filing on the ground that the agency abused its discretion in waiving Rule 61.38 ( 47 C.F.R. § 61.38 ). (Petition of AT&T at 2) AT&T argues that this panel’s decision conflicts with the decision of another panel of this court, Papago Tribal Utility Authority v. FERC, 628 F.2d 235 (D.C.Cir. 1980), cert. denied, - U.S. -, 101 S.Ct. 784 , 66 L.Ed.2d 604 (1980) as well as with a Supreme Court decision relied upon by the Papago court, Southern Railway Co. v. Seaboard Allied Milling Corp., 442 U.S. 444 , 99 S.Ct. 2388 , 60 L.Ed.2d 1017 (1979). (Petition of AT&T at 2-3) Because we are in substantial agreement with these contentions we grant the petition for rehearing and amend the panel decision by the attached order.
Our initial decision to review the Commission actions and to compel rejection of the filing was based on our conclusion that the agency had been unjustifiably summary in its procedures, given the $100 million per year impact of this tariff revision. The events preceding the acceptance of the TELPAK filing suggest that but for the Commission’s rescinded order of discontinuance, the agency would likely have required the § 61.38 cost justification date. As noted in the original panel opinion, Aeronautical Radio, Inc., et a1. v. FCC, 642 F.2d 1221 at 1227-1228 (D.C.Cir. 1980), the FCC initially ordered AT&T to discontinue TELPAK. Such agency-initiated rate changes are not subject to the § 61.38 requirements. Subsequently, after the FCC ordered resale and sharing of the TELPAK service and withdrew its termination order, the tariff revision at issue (a carrier-initiat *280 ed discontinuance) was filed by AT&T. Id. The Commission, we felt, employed the summary acceptance procedures which were appropriate for an agency-initiated discontinuance but which were inappropriate in the new circumstances. For this reason we ordered rejection of the tariff filing and left open the possibility of a refiling with cost justification data by AT&T. (At 1235-1236)
On rehearing, although our discontent with the Commission’s actions remains, we think upon further reflection that the Papa-go and Southern Railway cases preclude us from reviewing the FCC order. Both these decisions, in which courts declined to review agency orders regarding acceptance of rate revisions, might be distinguished as involving agency procedures less summary than those employed by the FCC here. The Papago customers had the protection of (1) cost justification data, (2) suspension of the increased rates, (3) an ordered hearing on the merits of the rate increase, and (4) a refund order of the full overcharge if rate increases were found unlawful. Papago, at 240-241. In Southern Railway, although there was no suspension or ordered hearing, the customers had the protection of (1) cost justification data, (2) ICC orders requiring the Railroad to document the effects of the rate changes, and (3) agency monitoring of the Railroad’s financial condition. 442 U.S. at 449-50 , 99 S.Ct. at 2391-92 . The AT&T customers had none of these protections. Their only resort is to the complaint procedure of the Communications Act. ( 47 U.S.C. §§ 206-209 ) Under both Papago and Southern Railway, however, this remedy alone suffices to render the FCC order non-final and unreviewable. The factual differences between those cases and this case are differences without a distinction.
Judgment in accordance with this opinion.