Opposition — Western Union Telegraph Co. v. Federal Communications Commission

No. 76-683 wg 3917

IN THE b amis

L

Supreme Court of the United States a

OctTosBer TERM, 1976

THE WESTERN UNION TELEGRAPH ComPaANy, Petitioner,

v.

FEDERAL COMMUNICATIONS CoMMISSION, UNITED STATES

or AMERICA, AMERICAN TELEPHONE AND TELEGRAPH

ComPany, and the Bett System Oprratine Com-

PANIES, Respondents.

OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

E. Epwarp Bruce

Mark D. Nozerre

Covinaton & BuRLING

888 Sixteenth Street, N.W.

Washington, D. C. 20006

ALFRED C. PARTOLL

Lee 8. Curciirr

M. JEAN DABNEY

195 Broadway

New York, New York 10007

Attorneys for Respondents

American Telephone and Tele-

graph Company and the Bell

Of Counsel: System Operating Companies

F.. Mark GARLINGHOUSE

195 Broadway

New York, New York 10007

Be ee

TABLE OF CONTENTS

Page

I DUD oo bd 6. Kk civcodeesédecdececéceves 2

SRATEMENT OF THB CASS 2. ncccccccccccccccccccccces 2

Reasons FOR OppostInc THE WRIT .............-0000: 8

cubist crltiicdbddtccccddantadensteueens 15

TABLE OF AUTHORITIES

CAsEs:

Bell Telephone Co. v. FCC, 503 F.2d 1250 (1974), cert.

dented, 422 U.S. 1026 (1975) .........cccceceecs 4

Far East Conference v. United States, 342 U.S. 570

SEE ccncetnnsedddedtbinsesaridcihedussudssal 9

FPC vy. Florida Power & Light Co., 404 U.S. 453 (1972) 11

Gordon v. New York Stock Exchange, Inc., 422 U.S. 659

EEE, Onc6ekcnensedecesusessnencualebesunse 11

Gunther v. San Diego & Arizona E. Ry., 382 U.S. 257

Dn, sledasddsissonbissudneseutdsddnsaadekes 9

Indiana Harbor Belt Railroad Co. v. United States, 510

F.2d 644 (7th Cir.), cert. denied, 422 U.S. 1042

DEE « Sn asbnideeeeeneednseeeudydesceeseresenes 14

Mississippi Power & Light Co. v. United Gas Pipe Line

Co., 582 F.2d 412 (Sth Cir. 1976) ............... 9

NLRB v. Marcus Trucking Co., 286 F.2d 583 (2d Cir.

SEY -dandedanchensenesecascsdueteseeesssncien 9

North Atlantic Westbound Freight Ass’n v. FMC, 397

ae ee Gs Gh EEE oc evdeinéccddtececcess 9

SEC v. Chenery Corp., 318 U.S. 80 (1943) .......... 11

ii Table of Authorities Continued

Page

Specialized Common Carrier Services, 29 F.C.C.2d 870,

reconsideration denied, 31 F.C.C.2d 1106 (1971),

aff’d, Washington UTC v. FCC, 513 F.2d 1142 (9th

Cir.), cert. denied, 423 U.S. 836 (1975) ......... 3

St. Petersburg Bank & Trust Co. v. Boutin, 445 F.2d

ee Gy I ED kos c.cecncdoencveccesoseseve 9

Texas Gas Transmission Corp. v. Shell Oil Co., 363 U.S.

EE Sabu eee ck une ddon Caebesabnneedsciesén 10

United Gas Pipe Line Co. v. Memphis Light, Gas and

Water Div., 358 U.S. 103 (1958) ...........ee08 9

Washington UTC v. FCC, 513 F.2d 1142 (9th Cir.),

cert. denied, 423 U.S. 836 (1975) .............5. 3

IN THE

Supreme Court of the United States

OcTOBER TERM, 1976

No. 76-683

THE WESTERN UNION TELEGRAPH CoMPANY, Petitioner,

Vv.

FEDERAL COMMUNICATIONS CoMMISSION, UNITED STATES

or AMERICA, AMERICAN TELEPHONE AND TELEGRAPH

Company, and the BeLL System OPERATING Com-

PANIES, Respondents.

OPPOSITION TO PETITION FOR A WRIT OF

CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT

Respondents, American Telephone and Telegraph

Company (‘‘AT&T’’) and the Bell System Operating

Companies herein oppose the petition for a writ of

certiorari filed by The Western Union Telegraph Com-

pany (‘‘Western Union’’) on November 15, 1976.

2

QUESTION PRESENTED '

Whether the Court of Appeals erred in refusing to

overturn the decision of the Federal Communications

Commission (‘‘FCC’’) (1) that under contracts

between the Bell System and Western Union whieh

will expire in 1978 Western Union may not lease

facilities from the Bell System for Western Union’s

use in providing FX and CCSA services; and (2) that

Western Union must instead obtain those facilities

pursuant to tariffs under the same rates, terms and

conditions as other carriers with whom it competes?

STATEMENT OF THE CASE

In 1970, Western Union and the Bell System re-

newed and modified long-standing contracts pursuant

to which Western Union leases facilities for its use in

rendering service to the public. Those contracts will

expire in 1978. Until that time, Western Union de-

sires to obtain facilities for its provision of so-called

' In its petition, Western Union sets forth a single question pre-

sented dealing solely with the lower court’s review of the FCC's

construction of the Bell System-Western Union contracts. How-

ever, Western Union claims in a footnote (p. 3 n. 4) that the

question presented ‘‘is also applicable to the Commission’s hold.

ing that Western Union waived its contract rights by accepting

a domestic satellite grant.’’ The Bell System does not concede

that Western Union has properly sought certiorari with respect

to the waiver issue by its footnote reference to this quite dif-

ferent question. Indeed, Western Union’s argument as to the

construction of the Bell System-Western Union contracts turns

upon a supposed distinction between the deference due an admin-

istrative agency’s constructiou of a contract and its resolution of

other issues, such as the interpretation of its prior orders, which

was the basis for the FCC’s resolution of the waiver issue. In any

event, the argument which the Bell System will advance concern-

ing the contract construction issue applies, as the lower court held

(Petn. 17a), a fortiori to the waiver issue.

3

FX and CCSA services’ from the Bell System under

the 1970 contracts, rather than pursuant to tariffs

which the Bell System was ordered to file by the FCC

and which set forth the rates that other carriers, in-

eluding many of Western Union’s competitors, must

pay for their FX /CCSA facilities.

The present dispute has its origin in a series of FOC

orders post-dating the 1970 agreements, which have

substantially changed the nature of the domestic com-

munications industry. In a major departure from

prior regulatory policy and practice, the FCC in 1971

determined to authorize so-called ‘‘Specialized Com-

mon Carriers’’ (‘‘SOCs’’) to engage in the provision

of interstate common carrier private line service in

competition with the Bell System and Western Union.*

In commencing operations, the SCCs provided only

‘*noint-to-point’’ (i.e. non-switched) private line serv-

ice and required from the Bell System solely the local

distribution facilities necessary to originate or termi-

nate that service. Thus, at this stage of their opera-

tions the SCCs neither required nor sought connection

with the Bell System’s switched telephone network.

Later, however, some of the SCCs began demand-

ing the right to offer FX and CCSA services. Al-

though previously providing the SCCs with facilities

necessary for their point-to-point services, the Bell

System took the position that connection of the SCCs

2 Western Union does not challenge the lower court’s descrip-

tion (Petn. 4a n.1) of FX and CCSA services. See Petn. 5 n.7.

8 See Specialized Common Carrier Services, 29 F.C.C.2d 870,

reconsideration denied, 31 F.C.C.2d 1106 (1971), aff’d, Washing-

ton UTC v. FCC, 513 F.2d 1142 (9th Cir.), cert. denied, 423 U.S.

836 (1975).

4

with the switched public telephone network for

switched services, such as FX and COSA, would in-

terfere with the planning and coordination necessary

to insure efficient service via that network and would

increase the costs associated with its operation.

Ultimately, the issue of SCC provision of FX and

COSA services via Bell facilities and through con-

nection with Bell’s switched public telephone network

was resolved by the FCC, which on April 23, 1974,

ruled that the Bell System should intereonnect with

the SCCs for their provision of FX and CCSA serv-

ices. (46 F.C.C.2d 413). To implement this require-

ment, the FCC directed that the Bell System file inter-

state tariffs setting forth a schedule of charges for

its provision of FX /CCSA facilities to other carriers

and for its interconnection with them.

Up to this point in time, Western Union had not

provided nor sought to provide FX/CCSA services.

It had not sought to lease facilities from the Bell Sys-

tem under the 1970 (or earlier) contracts for this

purpose, nor had it indicated a desire to interconnect

with Bell switched services.

However, after the Bell System sought judicial re-

view of the FCC’s April 23, 1974, order, Western

Union began to assert its right to provide FX and

OCSA services. Subsequently, it registered an in-

formal complaint with the FCC concerning the Bell

System’s refusal both to provide connections and to

allow Western Union to lease facilities under the 1970

contracts for its provision of these services. (A. 23).

Prior to the FCC’s ruling upon this complaint, its

earlier order was affirmed. Bell Telephone Co. v.

FCC, 503 F.2d 1250 (3d Cir. 1974), cert. denied, 422

2 a etl ie

5

U.S. 1026 (1975). Since that decision rested upon a

rationale which was broad enough to mandate the Bell

System’s provision of FX/CCSA interconnections

and facilities to Western Union and not merely the

new SCCs, the Bell System agreed to permit Western

Union to obtain facilities and to connect its services

with Bell System switched services in the manner nee-

essary to allow Western Union to provide FX and

OCCSA services. However, the Bell System took the

position that Western Union must pay for these inter-

connections and facilities under the same tariffed rates

applicable to the SCCs, rather than under the lower

rates for facilities contained in the 1970 contracts,

arguing that those contracts did not extend to West-

ern Union’s provision of FX /CCSA services.

On October 16, 1974, the FCC, acting on Western

Union’s complaint, handed down an order which rec-

ognized and affirmed that the Bell System was required

by the April 23, 1974, order to provide facilities and

to connect with Western Union to enable it to provide

FX and COSA services. (Petn. 64a). Declaring that

for certain purposes Western Union was an SCO

within the meaning of its earlier orders, the FCC held

that

“Thus Bell is obligated, pursuant to the Commis-

sion’s Decision in Specialized Common Carrier

Services [29 F.C.C.2d 870, 31 F.C.C.2d 1106

(1971) ], to make available, on a non-diserimina-

tory basis, its monopoly facilities to all carriers,

including Western Union, for the provision of

FX and CCSA services.’’ (Petn. 65a).

The FCC was unable on the record then before it,

however, to determine whether the rates for the facili-

ties involved in providing FX and CCSA services

6

should be determined by the 1970 Bell System-Western

Union contracts or whether the charges for such fa-

cilities should instead be determined by Bell’s tariffs.

Accordingly, the FOC directed the parties to brief this

question.

Following the submission of copious briefs by both

sides (A. 47, 65, 124, 137) bearing on construction of

the 1970 contracts, the FCC on June 24, 1975, issued

the final order underlying Western Union’s instant

petition. (Petn. 45a). After discussing the terms of

the Bell System-Western Union contracts and other

evidence bearing upon the intent of the parties, the

FCC found that ‘‘Western Union may not obtain

under the contracts facilities which would be used in

the provision of FX and CCSA services,’’ but instead

must obtain such facilities ‘‘pursuant to Bell tariffs

on file with this Commission, in the same manner and

at the same rates as other common carriers offering

FX and CCSA type services.”’ (Petn. 57a).*

Unsatisfied with the decision (which Western

Union’s own complaint had precipitated) that it must

pay the same tariff rates as other carriers for FX/

COSA facilities, Western Union filed a petition for

review in the Third Cireuit. In briefing and arguing

the case, Western Union contended, in the lower

court’s words, that the FCC had ‘‘no particular ex-

pertise’’ with respect to the issue involved in the con-

* As to the facilities used in the provision of domestic satellite

services, the FCC analyzed its prior orders and reaffirmed that

‘Western Union willingly and knowingly waived its contract

rights [if any existed] when it accepted its authorization’’ for

its own domestic satellite facilities. (Petn. 63a). Thus, here, too,

Western Union was required to obtain facilities pursuant to Bell

tariffs on file at the FCC rather than at preferential contract

rates.

7

struction of the Bell System-Western Union contracts

and that its decision was, therefore, ‘‘entitled to no

greater deference from [that] court than would be due

a district court in a breach of contract action.’’ (Petn.

lla).

After analyzing the relevant sections of the Admin-

istrative Procedure Act and recognizing that ‘‘[t]}hese

agreements involve complex, sophisticated, and rap-

idly-evolving, communications technology * * * * im-

plicat[ing] questions of national regulatory policy”’

(Petn. 1la-12a), the Third Circuit rejected Western

Union’s argument and held that it would upset the

FOC’s construction of the contracts ‘‘only if it is*arbi-

trary, capricious, an abuse of discretion, or otherwise

not in accordance with law.’’ (Petn. 12a). Then turn-

ing to an analysis of the several provisions of the con-

tracts, the Court of Appeals refused to adopt Western

Union’s construction and concluded that the FCC’s

rejection of Western Union’s position should not be

set aside under the standard of review prescribed by

the Administrative Procedure Act.

The petition for certiorari filed by Western Union

in this Court complains that the Third Cireuit did not

review de novo the contractual issue decided by the

FCC. It also seeks to have this Court so construe

the contracts and render a decision which would enable

Western Union to have the advantage until 1978 of

contract, as opposed to tariff, rates for the lease of

facilities used in its provision of FX and CCSA serv-

ices. See Petn. p. 13 n.18.°

° Western Union in its petition relies heavily upon the dissenting

opinion of Judge Garth below, which, based upon a de novo review

of the issues decided by the FCC, concluded that the contracts

(footnote continued )

8

REASONS FOR OPPOSING THE WRIT

Western Union has failed to advance anything in

its petition that would justify the exercise of this

Court’s certiorari jurisdiction. Certainly, the inher-

ent significance of the dispute between Western Union

and the Bell System and any attending considerations

of equity are not such as to prompt this Court to grant

review. The disputed contracts will terminate in

1978. Moreover, what Western Union has unsuccess-

fully sought from both the FCC and the Third Circuit

is a construction of the contracts that would put it in

a preferred position, vis-a-vis other carriers, in obtain-

ing facilities from the Bell System for the provision

of FX and CCSA services.

Just as the Bell System-Western Union dispute

fails to raise any significant issues of national policy,

it similarly fails to raise any legal issues commonly

did extend to Western Union’s provision of FX and CCSA services.

Because of the inappropriateness of this Court’s exercise of its cer-

tiorari jurisdiction to resolve this issue, we will do no more here

than point out that Judge Garth failed even to recognize many of

the principal arguments advanced in support of the FCC’s con-

struction of the contracts—(1) that in 1970, when the contracts

were renewed, Western Union was explicitly precluded from pro-

viding FX services by Bell System tariffs then in effect (A.61) ;

(2) that the Bell System did not interconnect its switched services,

such as are used in the provision of FX and CCSA services,

with non-telephone communications common carriers, like Western

Union, until the FCC’s 1974 order; (3) that under Section 2(g)

of one of the 1970 contracts (Petn. 74a) and Section 2(f) of the

other 1970 contract (Petn. 91a), Western Union is prohibited from

leasing facilities where they are available under tariff; and (4)

that under Section 3(b) of the agreements (Petn. 75a, 91-92a)

Western Union would require the written consent of the Bell Sys-

tem (which it neither sought nor obtained) to interconnect circuits

in the manner necessary for the provision of FX and CCSA

services and thus could not claim an open-ended obligation from

the Bell System to make facilities available for FX/CCSA services,

9

recognized as a prerequisite to the exercise of this

Court’s certiorari jurisdiction. Instead, the position

taken by Western Union in this Court rests solely

upon its reading of the record of the proceedings un-

derlying the FOC’s June 24, 1975, order.

Western Union does not and cannot claim that no

deference should ever be paid to an administrative

agency’s construction of a contract properly brought

before it. A long line of judicial authority, both in

this and in other courts, which mandates judicial de-

ference to administrative agency adjudication of con-

tract disputes,® as well as elementary precepts of pri-

mary jurisdiction,’ prevent Western Union from tak-

ing any such broad legal position.

* United Gas Pipe Line Co. v. Memphis Light, Gas and Water

Div., 358 U.S. 103, 114 (1958) (recognition of FPC’s ‘‘special

competence’’ in construing contract); Gunther v. San Diego &

Arizona E. Ry., 382 U.S. 257 (1965) (deference due decisions of

National Railway Adjustment Board which bring to ‘‘thorny prob-

lems’’ of contract construction expertise based upon knowledge of

‘‘the industry’s language, customs, and practices’’); NLRB v.

Mareus Trucking Co., 286 F.2d 583 (2d Cir. 1961) (deference paid

to NLRB’s conclusion that a contract existed between the parties,

notwithstanding the court’s conclusion that evidence for the con-

tract was ‘‘synthetic’’); North Atlantic Westbound Freight Ass’n

v. FMC, 397 F.2d 683, 685 (D.C. Cir. 1968) (‘‘[e]ertainly where

underlying issues of fact or policy are involved an agency’s in-

terpretation of agreements is due judicial respect and deference’’) ;

St. Petersburg Bank & Trust Co. v. Boutin, 445 F.2d 1028, 1033

(5th Cir. 1971) (deference paid to SBA’s construction of ambigu-

ous provision of a loan agreement).

7 See, e.g., Far East Conference v. United States, 342 U.S. 570,

574 (1952); Mississippi Power & Light Co. v. United Gas Pipe

Line Co., 5382 F.2d 412 (5th Cir. 1976) (recognizing the primary

jurisdiction of the FPC to construe a contract between a pipe-

line company and one of its customers in the light of the FPC’s

general regulatory authority over and involvement in the natural

*

10

Instead, disagreeing with the lower court’s assess-

ment that the Bell System-Western Union agreements

‘‘involve complex, sophisticated, and rapidly-evolving

communications technology’? (Petn. lla), Western

Union contends that the issue before the FCC involved

‘‘a simple question of the interpretation of written

agreements’’ (Petn. 8) and that ‘‘[n]o factors derived

from FCC ‘expertise’ played any part whatsoever in

the agency decision.”’ (Petn. 9). Although its entire

petition rests upon this proposition, Western Union

relies upon nothing other than the force of its own

assertions to establish this element of its argument.

Certainly, the FCC did not here “disavow . . . re-

liance on any special agency competence or expertise

and profess . .. instead to be acting as would a court

...?? (Petn. 10), like the agencies whose orders were

under review in the two decisions of this Court relied

upon by Western Union in its petition. In Teras Gas

Transmission Corp. v. Shell Oil Co., 363 U.S. 263, 268

(1960), this Court was able to hold that

‘‘the record nowhere discloses that the Commission

arrived at its interpretation of the [contract]...

on the basis of specialized knowledge gained from

experience in the regulation of the natural gas

business ... .”’

There, the contract issue arose in a routine rate-making

ease in which the hearing examiner ‘‘concluded that

gas curtailment issues which gave rise to the contract dispute).

Significantly, Western Union in its petition here does not quarrel

with the Third Circuit’s observation that, had Western Union

not chosen the FCC as the forum to resolve its contract dispute

with the Bell System and had it instead proceeded directly to fed-

eral district court, its action probably would have been referred

to the FCC under the doctrine of primary jurisdiction. (Petn. lla

n.7).

11

‘elemental principles of contract law . .. too commonly

known to the legal profession to require citation in

support thereof’ compelled the decision he reached.”

(Id. at 269).

Similarly, in SEC v. Chenery Corp., 318 U.S. 80, 87

(1943), the SEC had explicitly ‘‘stated that it was

merely applying ‘the broad equitable principles enunci-

ated’ ’’ in judicial precedents. This Court was thus

able to hold that the SEC ‘‘purported to be acting only

as it assumed a court of equity would have acted in a

similar case.’’ (Id.) In Texas Gas, Chenery and simi-

lar cases, where the agency has made clear by its ac-

tion and its words that it is relying only upon general

legal principles and that it is not in any better position

than a court to articulate those principles, it may well

be appropriate that a court review the agency’s deci-

sion in the same manner that it would review the judg-

ment of a trial court.*

This unexceptionable proposition, however, hardly

supports the position which Western Union has taken

in this case. As was recognized by both the lower court

(Petn. 5a-6a) and by the FCC (Petn. 64°-67a; 45a-

*To be sure, the FCC did not explicitly refer to or discuss

the expertise which it could bring to the resolution of the Western

Union-Bell System contract dispute. But regulatory agencies sel-

dom proclaim their own expertise in dealing with issues properly

brought before them, yet courts regularly presume that it his been

exercised absent express indication by the agency to the contrary.

See, e.g., FPC v. Florida Power & Light Co., 404 U.S. 453 (1972),

where this Court affirmed an FPC decision (37 FPC 244 (1967))

based upon its expertise in analyzing scientific and engineering

data, notwithstanding the FPC’s failure to refer to that expertise.

Cf. Gordon v. New York Stock Exchange, Ine., 422 U.S. 659

(1975), relying upon the SEC’s expertise in regulating brokerage

commissions in the light of its presumed familiarity with these

matters.

12

57a), the FCC has been intimately involved in all of

the matters giving rise to the instant dispute through

its enunciation of the national regulatory policy bear-

ing upon SCC and Western Union provision of FX/

CCSA services; its issuance of prior orders defining

the Bell System’s obligation to assist these carriers in

the provision of these services ; its familiarity with the

long course of dealing between Western Union and the

Bell System, as most recently expressed in the 1970

version of their contracts; its jurisdiction over Bell

System tariffs for the provision of facilities and con-

nections involved in Western Union’s and the SCC’s

provision of FX/CCSA services; ete. It was thus

eminently qualified to pass upon the issues underlying

construction of the Bell System-Western Union con-

tracts.

That this is so is clearly revealed by Western Union’s

principal argument in support of its construction of

the disputed contracts. Overridingly, that argument

turned upon whether the parties had reference to the

status quo of 1970 when they fixed Bell System’s obli-

gations to provide facilities to Western Union for

interconnected services or whether instead they con-

templated an open-ended obligation that would force

the Bell System to provide facilities at contract rates

to Western Union for any new (post-1970) intercon-

nected services.

As indicated above (p. 7 n.5), there were a variety of

arguments advanced by the Bell System which support

the conclusion that the Bell System-Western Union

1970 contracts did not contemplate the open-ended Bell

System obligation urged by Western Union. However,

the FCC’s rejection of Western Union’s construction

of one of the provisions of the 1970 agreement, Sec-

13

tion 3(d) (Petn. 76a-77a), sufficiently demonstrates

the expertise that the FOC brought to the Western

Union-Bell System contract dispute.

Western Union contended that under Section 3(d)

it was entitled to receive facilities for interconnected

services, if, at any time after 1970, the Bell System

filed tariffs with the FOC permitting such interconnec-

tion. The FCC rejected Western Union’s construc-

tion of Section 3(d) as one which would render the

section ‘‘superfluous,’’ since

‘‘{i]f there were no Section 3(d) in the contract,

then the terms and conditions governing the con-

nection of Bell services with the services of other

common carriers would be found in the then effec-

tive applicable Bell System customer tariffs.”’

(Petn. 56a-57a).

Thus, under the FCC’s view of the matter, for Section

3(d) to provide any meaningful role in defining the

Bell System’s obligations, the reference to ‘‘tariffs’’

in that section must be to those which were on file as of

1970 when the contracts were renewed, not those which

might subsequently be filed by the Bell System. (Petn.

o7a).

An examination of the opinions of the FCC and of

the record upon which they were based clearly shows

that the FOC was correct in construing Section 3(d)

and other provisions of the Bell System-Western Union

contracts as not extending to Western Union’s lease of

facilities for FX and CCSA services. But that is not

really the point here.

What is determinative is that the Third Circuit both

articulated and applied the applicable standard of

14

judicial review under the Administrative Procedure

Act in declining to upset the FCC’s construction of the

contracts because it was not ‘‘arbitrary, capricious,

an abuse of discretion, or otherwise not in accordance

with law.’’ (Petn. 12a). Given the FCC’s special in-

sight into the nature of the Western Union-Bell Sys-

tem dispute and its unique appreciation of the various

factors bearing upon the conflicting constructions of

the contracts urged by the parties, including its aware-

ness of the obligations imposed upon the Bell System

by its tariffs—the basis for the FCC’s rejection of

Western Union’s construction of Section 3(d)—the

record here clearly demonstrates the FCC’s expertise

in construing the contracts and supports the lower

court’s refusal to engage in the type of de novo review

urged by Western Union.°

Thus, the essential premise underlying the Tezras Gas

and Chenery cases—that there was no basis in the rec-

ord for assuming agency expertise—is absent here; the

FCC’s knowledge of the issues presented and its gen-

eral expertise in this area are readily apparent. Cer-

tainly, in arguing that the record inadequately sup-

ports the deference paid by the court below to the

FCC’s decision, Western Union does not present a

question worthy of this Court’s certiorari jurisdiction,

let alone one that is suitable for the summary disposi-

tion suggested in the petition.

® Indeed, the close interrelationship between Bell System tariffs

and the contractual issue decided by the FCC brings this case

within the line of authority deferring to administrative agency

expertise in interpreting and applying tariffs. See, e.g., Indiana

Harbor Belt Railroad Co. v. United States, 510 F.2d 644 (7th

Cir.), cert. denied, 422 U.S. 1042 (1975).

15

CONCLUSION

For the reasons stated herein, Western Union’s peti-

tion should be denied.

Respectfully submitted,

E. Epwarp Bruce

Mark D. Nozertre

Covineton & BuRLING

888 Sixteenth Street, N.W.

Washington, D. C. 20006

ALFRED C, PARTOLL

Lee S. Cutciirr

M. JEAN DABNEY

195 Broadway

New York, New York 10007

Attorneys for Respondents

American Telephone and Tele-

graph Company and the Bell

System Operating Companies

Of Counsel:

F. Mark GARLINGHOUSE

195 Broadway

New York, New York 10007