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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1977
- **Citation:** 429 U.S. 1092

## Text

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

---

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