Opposition — Rosner v. United States

Nos. 77-420, 77-421, and 77-436 OCT 17 1977

«IN THE MICHAEL RODAK, JR. CLE

Supreme Court of the Anited States

OctoBer TERM, 1977

Untrep States INDEPENDENT TELEPHONE ASSOCIATION,

AMERICAN TELEPHONE AND TELEGRAPH CoMPANY,

and Freprra, CoMMUNICATIONS CoMMISSION,

Petitioners,

Vv.

MCI TELecoMMUNICATIONS CORPORATION, MICROWAVE

CoMMUNICATIONS, Inc. and N-TRIPLE C Inc.,

Untrep States or America, Data TRANSMISSION

Company (Darran), and SovurHern Paciric Com-

MUNICATIONS CoMPaNny, Respondents.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

_

BRIEF FOR THE RESPONDENT SOUTHERN PACIFIC

COMMUNICATIONS COMPANY IN OPPOSITION

THORMUND A. MriLeR

Ricnarp S. Kopr

JAMES M. Torn

One Market Plaza

San Francisco, Cal. 94105

Hersert E. Forrest

1250 Connecticut Ave., N.W.

Washington, D.C. 20036

Attorneys for Respondent

Southern Pacific

Communications Company

Srerror & JoHNson

1250 Connectient Avenne, N.W.

Washington, D.C. 20036

Of Counsel |

Supreme Court, U.S,

FILED

j

|

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Page

ee es eee ena cébeeeueedteeses tue 1

IR 6 ee Cet te cle peedeneeueas 2

SE TI nS kas creas decrees cccceccsedes 2

I de Fe a de Cadineeennatenns 2

EE oie teenie bai badéicaethbetcanweNeds 3

PE rk Se RR Cree eee 6

1. The Decision of the Court of Appeals Is Not in

Conflict With Decisions of Other Courts of Ap-

MED ochev chines tee ieuneechessssacueseeeses 6

2. The Court of Appeals Decision Is a Proper Con-

struction of the Governing Statute ........... 9

3. A Review By This Court of the Decision of the

Court of Appeals Would At Best Be Premature

Se Sy SEE 6 dcuédbenSeninuddkedecesucs 10

4. There Are No Special and Important Reasons

for a Review on Writ of Certiorari .......... 11

RIESE Rr Se ck Ne Fe SEG eS Se Re 15

CITATIONS

CaSsEs:

AT&T v. FCC, 487 F.2d 865 (2d Cir. 1973) .......... 7

AT&T v. FCC, 539 F.2d 767 (D.C.Cir. 1976) ......... 8

Bell Telephone Co. of Pennsylvania v. FCC, 503 F.2d

1250 (3rd Cir. 1974), cert. denied, AT&T v. FCC,

422 U.S. 1026 (1975), rehearing denied, 423 U.S.

Se EE chdcuepeaedeiGWestcedeiweesbheteus 7, 8,9

Economic Implications and Interrelationships Arising

From Policies and Practices Relating to Customer

Interconnection, Jurisdictional Separations and

Rate Structures, Docket No. 20003, 61 F.C.C. 2d

Se: PO CED Bebe dere see rekees eet ccbsbessen 13

ii Citations Continued

Page

Establishment of Rules Pertaining to the Authoriza-

tion of New or Revised Classifications of Com-

munications on Interstate or Foreign Common

Carrier Facilities, Docket No. 19117, 39 F.C.C.2d

Bae CRUSD ve ccu as vvctwcdccerccavsesesesecsess 4,10

MCI Telecommunications Corp., Investigation Into the

Lawfulness of Tariff F.C.C. No. 1 Insofar As It

Purports to Offer Execunet Service, Docket No.

21640, 60 F.C.C.2d 45 (1976), Pet.App. 32a, re-

versed, MCI Telecommunications Corp. v. FCC,

No. 75-1635 (D.C.Cir. July 28, 1977), Pet.App. 2a . 2,5

MCI Telecommunications Corp. v. FCC, No. 75-1635

(D.C.Cir. July 28, 1977), Pet.App. 2a .. 1,2, 5, 6, 10, 11

Microwave Communications, Inc., 18 F.C.C.2d 953

(1969), reconsideration denied, 21 F.C.C.2d 190

(1970), modifications granted, 27 F.C.C.2d 380 ,

are eT ee eT eee

Nort! Carolina Utilities Commission v. FCC, 537 F.2d

797 (4th Cir. 1976), cert. denied, 429 U.S. 1027

errr rer eer rrr ete Tore bee 7

North Carolina Utilities Commission v. FCC, 552 F.2d

1036 (4th Cir. 1977), cert. denied, No. 76-1675, 46

TR 8 rene ee 7,13

People of State of California v. FCC, No. 75-2060 (D.C.

Cir. June 20, 1977), petition for cert. pending, No.

SU EE bn chandnenvedes tentaaouennes ans 8

Press Wireless, Inc., 25 F.C.C. 1466 (1958), affirmed,

Press Wireless, Ine. v. FCC, 105 U.S.App.D.C. 86,

i+ § F: | Sr rrr 7

Public Utilities Commission of California v. United

States, 356 F.2d 236 (9th Cir. 1966), cert. denied,

ee OED cc tenin's xsdebabasenl duteeses 7

Puerto Rico Telephone Co. v. FCC, 553 F.2d 694 (1st

RD, RRO rrr ore eee ne 8

Specialized Common Carrier Services, Docket No.

18920, 29 F.C.C.2d 870 (1971), reconsideration

denied, 31 F.C.C.2d 1106 (1971), affirmed, Wash-

ington Utilities & Transportation Commission v.

FCC, 513 F.2d 1142 (9th Cir. 1975), cert. denied,

National Assn. of Regulatory Utility Commission-

ers v. FCC, 423 U.S. 836 (1974) ............... 3, 5, 6

United Telegraph Workers, AFL-CIO v. FCC, 141 U.S.

App.D.C. 190, 436 F.2d 920 (1970) ............ 7

create eres ae

Citations Continued iii

Page

Washington Utilities & Transportation Commission v.

FCC, 513 F.2d 1142 (9th Cir. 1975), cert. denied,

National Assn. of Regulatory Utility Commission-

ers v. FCC, 423 U.S. 836 (1975) ................ 7,8

Western Union Telegraph Co. v. FCC, 541 F.2d 346

SEE S6bU died daénbavetckebscas veeces 7

STATUTES:

Communications Act of 1934, as amended, 47 U.S.C.

151 et seq.:

Section 214, 47 U.S.C. 214 ........... 2-3, 5, 6, 9, 10, 12

28 U.S.C. 1254(1)

IN THE

Supreme Court of the United States

OctToBER TERM, 1977

Nos. 77-420, 77-421, and 77-436

Unitep States INDEPENDENT TELEPHONE ASSOCIATION,

AMERICAN TELEPHONE AND TELEGRAPH COMPANY,

and FreprraL COMMUNICATIONS COMMISSION,

Petitioners,

Vv.

MCI TELECOMMUNICATIONS CORPORATION, MICROWAVE

CoMMunIcaTiIons, Inc., and N-TrrLte C Inc.,

Unttep States or AMERICA, Data TRANSMISSION

CoMPANY (DatTRAN), and SouTHERN PactFic Com-

MUNICATIONS CoMPANY, Respondents.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the Disirict of Columbia Circuit

BRIEF FOR THE RESPONDENT SOUTHERN PACIFIC

COMMUNICATIONS COMPANY IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (Pet.App.2a-

30a) * is not yet reported. The decision of the Federal

***Pet.App.’’ refers to ‘‘Petitioner’s Appendix’’ of the Federal

Communications Commission in No. 77-436.

9

Communications Commission (Pet.App.32a-168a) is

reported at 60 F.C.C.2d 25 (1976).

JURISDICTION

The judgment of the Court of Appeals was entered

on July 28, 1977 (Pet.App. 2a). Motions to stay the

issuance of the mandate were granted by the Court of

Appeals on August 22, 1977. The petitions in Nos. 77-

420 and 77-421 were filed on September 16, 1977. The

petition in No. 77-436 was filed on September 19, 1977.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

QUESTION PRESENTED

Whether restrictions on the services which may be

offered by a communications carrier may be implied,

where the Federal Communications Commission has

granted a certificate of publie convenience and neces-

sity to the carrier for the construction and operation

of communieations facilities under Section 214 of the

Communications Act without express conditions, and

without an affirmative finding under Section 214 that

the publie convenience and necessity require the impo-

sition of terms and conditions on the certificate.

STATUTE INVOLVED

Section 214 of the Communications Act of 1934, as

amended, 47 U.S.C. 21+, provides in pertinent part:

See. 214. (a) No carrier shall undertake the con-

struction of a new line or any extension of any

line, or shall acquire or operate any line, or exten-

sion thereof, or shall engage in transmission over

or by mean: of such additivnal or extended line,

unless and until there shall first have been ob-

tained from the Commission a certificate that the

3

present or future public convenience and neces-

sity require or will require the construction, or

operation, or construction and operation, of such

additional or extended line * * *.

(c) The Commission shall have power to issue

such certificate as applied for, or refuse to issue it,

or to issue it for a portion or portions of a line, or

extension thereof, or discontinuance, reduction, or

impairment of service, described in the applica-

tion, or for partial exercise only of such right or

privilege, and may attach to the issuance of the

certificate such terms and conditions as in its judg-

ment the public convenience and necessity may

require * * *,

STATEMENT

In 1969, the Federal Communications Commission

granted applications by Microwave Communications,

Ine. (MCT) to construct microwave facilities between

Chieago and St. Louis ‘‘to offer to its subscribers a

limited common carrier microwave radio service de-

signed to meet the interoffce and interplant communi-

cations needs of small businesses’’.? No express condi-

tions on the services which could be offered by MCT

were stated in the certificate of public convenience and

necessity issued to MCT at that time, or in later certifi-

cates. In 1971, the Commission granted applications

by MCI to improve its facilities, observing that while

MCI’s services would meet the unfulfilled needs of

small businesses, the Commission did not intend to con-

fine the services which could be offered by MCI to

customers having ‘‘only limited needs’’ for microwave

services.”

2 Microwave Communications, Inc., 18 F.C.C.2d 953, 960-61

(1969), reconsideration denied, 21 F.C.C.2d 190, 194 (1970).

* Microwave Communications, Inc., 27 F.C.C.2d 380, 383 (1971).

+

Following MCI’s grant, numerous applications were

filed by MCI and its affiliated companies, and by

Southern Pacifie Communications Company (SPCC)

and others, to construct microwave facilities to pro-

vide specialized communications services in various

parts of the country. After an extensive rule making

proceeding in Specialized Common Carrier Services,

the Commission concluded that a general policy in

favor of new carriers in the specialized communica-

tions field would serve the public interest, convenience,

and necessity.’ Thereafter, the Commission dismissed

a rule making proceeding which would have required

prior approval from the Commission before a carrier

could offer new or revised services over its authorized

facilities.°

Under tariff revisions which became effective on

October 10, 1974, MCI offered a new ‘metered use’’

service over its authorized facilities which it called

‘‘Exeeunet’’. The American Telephone and Telegraph

Company (AT&T) complained to the Commission that

MCT was offering ordinary long distance telephone

service, ealled Message Telecommunications Service

(MTS), under the guise of Execunet, and that MCI

was only authorized to provide private line services

to its customers.

‘Specialized Common Carrier Services, Docket No. 18920, 29

F.C.C.2d 870, 920 (1971), reeon. denied, 31 F.C.C.2d 1106 (1971),

affirmed, Washington Utilities & Transportation Commission Vv.

FCC, 513 F.2d 1142 (9th Cir. 1975), cert. denied, National Assn. of

Regulatory Utility Commissioners v. FCC, 423 U.S. 836 (1975).

> Establishment of Rules Pertaining to the Authorization of New

or Revised Classifications of Communications on Interstate or For-

eign Common Carrier Facilities, Docket No. 19117, 39 F.C.C.2d 131

(1973).

eS

5)

The Commission rejected the Execunet tariff as un-

lawful. The Commission ruled that ‘‘[o]ur discussion

in the Specialized Common Carrier decision makes it

quite clear that we intended and did open competition

only in the limited portion of AT&T’s and Western

Union’s business represented by private line ser-

vices’, and that Execunet had many characteristics

similar to those of MTS, and not to any actual private

line service being offered by any carrier.’

In a unanimous decision here under review, the Dis-

trict of Columbia Circuit reversed.* The Court of

Appeals rejected the Commission’s position that there

were implicit restrictions on the facilities authoriza-

tions of specialized carriers which limited them to pro-

viding only ‘‘private line’’ services. It noted that the

Commission’s interpretation represented a substan-

tial departure from its prior administrative practice,

when it wished to impose limitations, of writing re-

strictions into a carrier’s certification or prescribing

by rule the services to be rendered by a class of

stations.’

The Court of Appeals held that under the express

terms of Section 214(c) of the Communications Act,

the Commission may attach restrictions, or require

prior approval for services to be provided over au-

thorized facilities, but only after it has made an affirm-

* MCI Telecommunications Corp., 60 F.C.C.2d 25, 36 (1976), Pet.

App. 32a, at 51a.

* Id., 60 F.C.C.2d at 42, Pet. App. at 61a.

* MCI Telecommunications Corp. v. FCC, No. 76-1635 (D.C. Cir.

July 28, 1977), Pet. App. 2a.

*Id., Pet. App. at 16a-17a.

6

ative determination that ‘‘in its judgment the public

convenience and necessity * * * require’’ terms and

conditions to be attached to the certificate.” It ruled

that the Specialized Common Carrier decision cannot

reasonably be read to have made an affirmative deter-

mination restricting specialized carriers to private

line services," nor did the Commission make a deter-

mination at anv time that the public interest would be

served by ereating or perpetuating an AT&T monop-

oly in interstate MTS to justify restrictions on spe-

cialized carrier competition.” Accordingly, it was held,

since no prior approval for new services to be carried

on authorized facilities was required, the Commission

eould not reject Execunet for not having been given

prior approval.”

ARGUMENT

1. The Decision of the Court of Appeals Is Not in Conflict With

Decisions of Other Courts of Appeals.

This ease presents (1) a narrow question of statu-

tory interpretation, i.e., whether Section 214 of the

Communications Act permits the Commission to im-

pose restrictions by implication on a carrier’s certifi-

eate of public convenience and necessity without an

affirmative finding that the restrictions are required,

and (2) a narrow question of fact, i.e., whether the

—

se Note 8 supra, Pet. App. at 20a-24a.

1 Id., Pet. App. at 28a.

121d. Pet. App. at 29a-30a.

3 1d., Pet. App. at 30a-3la.

‘

Commission has done so by restricting specialized

carriers to private line services.

This is the first court decision to address those

issues. In holding that the implied restrictions may not

be and have not been imposed, the Court of Appeals

followed established precedents of Courts of Appeals

in Commission cases that unless the regulatory agency

has promulgated rules setting out limitations on ser-

vices to be offered over the authorized facilities,”

or bas made an affrmative determination that the

public convenience and necessity require the imposi-

tion of restrictions, it may not interfere with the

right of a carrier to initiate tariffs proposing new

services or rates.”

There is no inconsistency with the series of recent

decisions in which various Courts of Appeals have

uniformly affirmed Commission decisions ertending

competition by new entrants in services and facilities

heretofore offered only by the telephone companies.”

** Press Wireless, Inc., 25 F.C.C. 1466 (1958), affirmed, Press

Wireless, Inc. v. FCC, 105 U.S. App. D.C. 86, 264 F.2d 372 (1959).

** Western Union Telegraph Co. v. FCC, 541 F.2d 346, 355 (3rd

Cir. 1976).

**United Telegraph Workers, AFL-CIO v. FCC, 141 U.S. App.

D.C. 190, 436 F.2d 920 (1970); AT&T v. FCC, 487 F.2d 865 (2d

Cir. 1973). Cf. Public Utilities Commission of California v. United

States, 356 F.2d 236 (9th Cir. 1966), cert. denied, 385 U.S. 816

(1966).

‘* Washington Utilities & Transportation Commission v. FCC, 513

F.2d 1142 (9th Cir. 1975), cert. denied, National Assn. of Regula-

tory Utility Commissioners v. FCC, 423 U.S. 836 (1975); North

Carolina Utilities Commission v. FCC, 537 F.2d 797 (4th Cir. 1976),

cert. denied, 429 U.S. 1027 (1976); North Carolina Utilities Com-

mission v. FCC, 552 F.2d 1036 (4th Cir. 1977), cert. denied, No.

76-1675, 46 L.W. 3190 (Oct. 3, 1977) ; Bell Telephone Co. of Penn-

8

Not one Court in its holdings imposed any restrictions

on the services and facilities which could be offered,

but rather each Court rejected challenges by AT&T

and others to competition in the specific area under

inquiry.

Not one Court has ruled on the issues decided by

the Court of Appeals below, whether restrictions can

be or have been imposed by implication. In Washing-

ton Utilities d& Transportation Commission v. FCC *

cited by petitioners, the Ninth Circuit addressed dif-

ferent questions of procedure, i.e., whether the Com-

mission’s decision to permit the entry of new carriers

in the specialized communications field was reasonable

and supported by appropriate findings on the record,

and subject to resolution by rule making. In Bell Tele-

phone Co. of Pennsylvania v. FCC,” also cited by

petitioners, the Third Circuit held that FX and CCSA

were within the category of private line services clearly

open to specialized carriers; it did not reach the ques-

tion whether FX and CCSA could be furnished if they

were not classified as private line.

The Commission suggests” that the District of

Columbia’s decision is inconsistent with the holding

of the Third Cireuit in Bell Telephone Co. of Penn-

sylvania v. FCC, 503 F.2d 1250 (3rd Cir. 1974), cert. denied,

AT&T v. FCC, 422 U.S. 1026 (1975), rehearing denied, 423 U.S.

886 (1975); AT&T v. FCC, 539 F.2d 767 (D.C. Cir. 1976) ; People

of State of California v. FCC, No. 75-2060 (D.C. Cir. June 20,

1977), petition for cert. pending, No. 77-406 (S.Ct.). Cf. Puerte

Rico Telephone Co. v. FCC, 553 F.2d 694 (1st Cir. 1977).

8 Thid.

'® Tbid.

2° FCC petition at 22.

9

sylvania that the Commission is the appropriate

agency, by statute as well as by experience, to decide

whether competition should be authorized and to what

extent. To the contrary, the thrust of the decision of

the Court of Appeals below is fully in conformity with

the Third Cireuit decision in ruling that the Commis-

sion should proceed to make that decision by an affirma-

tive determination under its statutory mandate.

2. The Court of Appeals Decision Is A Proper Construction Of

The Governing Statute.

The express command of Section 214(c) of the Com-

munications Act™ is that the Commission

may attach to the issuance of a certificate such

terms and conditions as in its judgment the public

convenience and necessity may require.

It is unchallenged that the Commission has never made

a specific affirmative determination under the statute

that the public convenience and necessity require that

specialized carriers be restricted to private line ser-

vices. The Commission itself concedes * that the estab-

lished telephone companies have a de facto monopoly

in MTS, but it has never granted AT&T a de jure

monopoly. No record has ever been made before the

Commission to demonstrate why restrictions should be

imposed on the specialized carriers in order to pro-

tect a monopoly which the Commission has never ad-

judicated to be proper.

47 U.S.C. 214(e).

7? FCC petition at 18 fn. 34.

10

Significantly, none of the petitioners even adverts

to the Commission’s proceeding in Docket No. 19117,”

although this was an important consideration in the

decision by the Court of Appeals below.” As the Cir-

cuit Court points out, the Commission there recog-

nized that in the absence of restrictions imposed under

Section 214 in the facilities authorizations, carriers

could offer any service which could physically be pro-

vided over their existing systems simply by filing a

tariff. In the proceeding, the Commission clearly in-

dicated its understanding of Section 214 as requiring

explicit action in order to restrict a carrier to the ser-

vice offerings it proposed when it sought authority to

build, operate, or extend its communications lines. In

terminating the proceeding, the Commission deter-

mined not to require its prior approval as a condition

for any new service by a carrier over its authorized

facilities.

3. A Review By This Court of the Decision of the Court of

Appeals Would At Best Be Premature At This Time.

The ultimate issue remaining for decision by the

Commission is one which it has never properly con-

sidered and resolved, viz., how much further does and

should competition in communications services extend.

The decision of the Court of Appeals below has not

resolved this issue. It has made no ruling on the

lawfulness of Execunet, or of the AT&T monopoly in

MTS services, or on the proper dividing line, if any,

which may be drawn between MTS and private line

services, or between authorized and non-authorized

23 Note 5 supra.

*# Note 8 supra, Pet. App. at 16a-17a.

11

services. All these matters are left for the Commis-

sion to decide. Indeed, the Court of Appeals has ex-

pressly noted: *

In so holding we have not had to consider, and

have not considered, whether competition like

that posed by Execunet is in the public interest.

That will be the question for the Commission to

decide should it elect to conduct these proceed-

ings.

The compass of the Court of Appeals’ ruling is thus

too narrow to justify present review by this Court.

The decision below only calls upon the Commission

to conduct appropriate proceedings and to reach pub-

lie interest determinations before it imposes restric-

tions upon the authorized facilities of specialized

carriers. The Commission has not yet conducted these

proceedings. For this Court to grant review at this

time would affect the merits of the Commission’s

determination of the issues, before the Commission

has had an opportunity to make an informed decision

upon a proper administrative record. Until there has

been a disciplined examination in an appropriate pro-

ceeding of the extent, if any, to which competition

should be circumscribed under public interest stand-

ards, based upon a specific factual record and not

unsupported assumptions and vague suppositions, the

issues are not properly ripe for review by this Court.

4. There Are No Special and Important Reasons For A Review

On Writ of Certiorari.

The petitions present no constitutional issue, or im-

portant question of federal law which should be set-

7° Note 8 supra, Pet. App. at 30a.

12

tled by the Court at this time, or any occasion for an

exercise of this Court’s power of supervision. The

matter before the Court of Appeals below involved

a narrow question of statutory interpretation and

administrative procedure, i.e., whether the agency

below was required to make an affirmative determina-

tion (as the language of the statute explicitly dic-

tates) that ‘‘in its judgment the public convenience

and necessity * * * require’’ that terms and conditions

be attached to an otherwise unqualified certificate of

public convenience and necessity. The Court of Ap-

peals specifically reached no resolution on the pro-

pricty of the tariff offering rejected by the the Com-

mission. Rather, it remanded the question for decision

by the Commission in an appropriate proceeding,

whether restrictions should be imposed on the au-

thorizations of specialized carriers which presently

contain no express conditions. These are matters

properly left for the Commission to consider, subject

to judicial review under accepted judicial standards.

Contrary to the assertions of petitioners, the deci-

sion of the Court of Appeals will have only a minimal

effect if permitted to become fully effective. The exist-

ing Section 214 authorizations of specialized carriers

are restricted as to the lines or routes on which ser-

vices may be offered, and the number of circuits on

each route. Any expansion of MCI’s presently limited

authorizations will require Sectson 214 applications to

the Commission subject to the Commission’s process-

ing procedures and its review of certification policies.

Other specialized carriers such as SPCC are even

more restricted, because they do not have tariffs in

effect which permit them to offer Execunet-type ser-

vice, and the tariffs which must be filed to offer this

13

or any new service are subject to the notice require-

ments and the suspension and investigation powers

of the Commission before they can become effective.

In addition, the specialized carriers with their limited

facilities have continuing obligations to their present

customers which do not permit them to change sub-

stantially the character of the services they are now

offering on their authorized facilities.

Thus, the projections of injury by the telephone

companies and their supporters are conjectual and

unrealistic. Consistently over the years, they have

claimed that competition would have a severe effect

on telephone revenues and upon the funds available

in the interstate revenues pool to support local ex-

change service. The Commission itself has never found

any significant adverse effect on telephone company

revenues or on the rates for basic telephone services

as a result of competition.” In this regard, the Fourth

‘irecuit has said :*

[P]etitioners cannot create an economic impact

with the volume of their jeremiad. Their claims

of economic impact are refrains of assertions that

the FCC has consistently found to be unsub-

stantiated by evidence, conclusory, and based on

unrealistic assumptions about market behavior.

[ Citations. ]

*° Economic Implications and Interrelationships Arising From

Policies and Practices Relating to Customer Interconnection, Juris-

dictional Separations and Rate Structures, Docket No. 20003, 61

F.C.C.2d 766, 776 (1976).

** North Carolina Utilities Commission v. FCC, 552 F.2d 1036,

1055-56 (4th Cir. 1977), cert, denied, No. 76-1675, 46 L.W. 3190

(Oct. 3, 1977).

14

Conversely, if review is granted, the specialized car-

riers will continue to be deprived of the opportunity

to offer services to the public which the Court of Ap-

peals has ruled to be permissible under existing

authorizations. They will thus continue to be sharply

circumscribed in their ability to provide a viable opera-

tion and new and innovative services in competition

with the established carriers.

In sum, no valid, much less urgent or compelling,

reason has been shown for granting the writ. The al-

leged conflict between Circuits simply does not exist.

In addition, as right as was the District of Columbia

Circuit's interpretation of the applicable statute and

the Commission’s procedures, a review of that decision

would at best be premature at this time, since the effect

of that decision will depend upon its implementation

by the Commission.

15

CONCLUSION

For the foregoing reasons, the petitions for a writ

of certiorari should be denied.

Respectfully submitted,

THORMUND A. MILLER

Ricuarp S. Kopr

JAMES M. Tosin

One Market Plaze

San Francisco, Cal. 94105

Hersert E. Forrest

1250 Connecticut Ave., N.W.

Washington, D.C. 20036

Attorneys for Respondent

Southern Pacific

Communications Company

Steptor & JOHNSON

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

Of Counsel

October 17, 1977