noting that section 405 limits review to issues raised before the Commission
How later courts described this case
- noting that section 405 limits review to issues raised before the Commission
- consolidated for argument with the petitions in this case, but disposed of separately
- “Special Access Order ”
Written by the judges who cited it.
The opinion
BUCKLEY, Circuit Judge,
dissenting in part:
I concur in all but one aspect of the majority opinion, and that is its conclusion that MCI had failed, in the agency proceedings, to assert its claim that section 211 required that SNFAs be filed with the FCC. My reading of the record suggests the contrary.
The majority cites ambiguous language from the MCI Opposition to Direct Cases (“Opposition”) in support of its position that MCI had failed to raise the issue because it did not make specific reference to subsection 211(a) (which requires the filing of certain contracts), thereby leaving the FCC in doubt as to whether MCI was merely requesting that it exercise its discretion, under subsection 211(b), to require the filing of “other contracts.” Maj. op. at 1302. MCI made it clear in language the majority did not quote that it considered the filing of the SNFAs to be mandatory: “With these exclusive and discriminatory arrangements placed in tariffs or contracts on file at the FCC, the public will be able to exercise its statutory right to scrutinize these arrangements. 47 U.S.C. §§ 203 , 204, and 211.” Opposition at 6, J.A. at 448 (emphasis added.) It seems self-evident that the public can only exercise a statutory right to scru *1308 tinize contracts if those contracts are required by statute to be filed.
I am unimpressed by the argument that because MCI had failed to underscore the obvious, it failed to provide the FCC with “reason to address the question whether SNFAs had to be filed pursuant to section 211(a).” Maj. op. at 1302. Accordingly, I would have required the FCC to address the issue on remand.