Supplemental Brief — Rosner v. United States

Supreme Court, U. S.

FILED

NOV 29 1977

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

IN THE ) MICHAEL RODAK, JR., CLERK

Supreme Cot of the United:

OctToseR TERM, 1977

Untrep States INDEPENDENT TELEPHONE ASSOCIATION,

AMERICAN TELEPHONE AND TELEGRAPH COMPANY,

and FEDERAL COMMUNICATIONS COMMISSION,

Petitioners,

Vv.

MCI TELECOMMUNICATIONS CORPORATION, MICROWAVE

Communications, Inc., and N-Tripte C INc.,

Untrep States oF America, Data TRANSMISSION

Company (DaTRAN), and SouTHERN Paciric Com-

MUNICATIONS CoMPANY, Respondents.

On Petitions for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

SUPPLEMENTAL BRIEF FOR THE RESPONDENT

SOUTHERN PACIFIC COMMUNICATIONS

COMPANY IN OPPOSITION

THORMUND A. MILLER

Ricwarp S. Kopr

James M. Tosin

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

STEPTOE & JOHNSON

1250 Conneeticut Avenue, N.W.

Washington, D.C. 20036

Of Counsel

Paess or Brsonw S. Apams Printina, INc., WASHINGTON, D. C.

IN THE

Supreme Court of the United States

OcToBeR TERM, 1977

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

UniTep States INDEPENDENT TELEPHONE ASSOCIATION,

AMERICAN TELEPHONE AND TELEGRAPH COMPANY,

and FEepERAL COMMUNICATIONS COMMISSION,

Petitioners,

Vv.

MCI TELECOMMUNICATIONS CORPORATION, MICROWAVE

CoMMUNICATIONS, INc., and N-TripLe C INc.,

Unitep States oF AMERICA, Data TRANSMISSION

CoMPANY (DaTRAN), and SOUTHERN PaciFric Com-

MUNICATIONS COMPANY, Respondents.

On Petitions for a Writ of Certiorari io the United States

Court of Appeals for the District of Columbia Circuit

| SUPPLEMENTAL BRIEF FOR THE RESPONDENT

SOUTHERN PACIFIC COMMUNICATIONS

COMPANY IN OPPOSITION

This supplemental brief for the respondent South-

ern Pacific Communications Company in opposition

is directed solely to the Memorandum of the United

States stating that this Court should grant review be-

cause the decision of the court of appeals presents im-

2

portant issues as to services which may be offered by

specialized carriers under certificates granted under

Section 214 of the Communications Act (p. 6). The

Memorandum acknowledges that the decision of the

court of appeals rests upon substantial grounds, and

reserves the position of the United States on the merits

(ibid.).

1. The Memorandum appears to suggest (p. 6) that

the United States supports the grant of review because

it supported the Commission in the court below. How-

ever, the failure of the Government to anticipate the

reasoning of the court below which it now concedes

‘‘rests upon substantial grounds’’ (ibid.) is hardly an

adequate reason for review. The Government’s evalu-

ation of the lower court’s decision, and its reservation

of its position on the merits, constitute a recognition

by the Government that the court of appeals may well

have been correct in its decision on the merits. The

limited resources of this Court should not be invoked

in order to secure this Court’s affirmance of lower court.

decisions.

2. The Memorandum fails completely to address the

question why review by this Court at this time would

be appropriate. The court of appeals has explicitly left

to the Commission’s decision in an appropriate pro-

ceeding (Pet. App. at 30a) the extent to which the

certificates of specialized carriers should be limited. The

Commission has not yet undertaken to, conduct this

proceeding. The Memorandum concedes (p. 5) that

the Commission has not made the affirmative determi-

nation necessary under Section 214(c) of the Act that

‘the public convenience and necessity * * * require’’

that limitations be imposed upon specialized carrier

certificates. Until the Commission makes this determi-

c= Uz?

3

nation in an appropriate proceeding, review by this

Court would be premature, and based on a wholly in-

adequate record on the public convenience and neces-

sity issues. A grant of the petitions will delay substan-

tially the resolution by the Commission of these im-

portant issues. A denial of the petitions will provide

the best assurance that a proceeding will be initiated

and conducted expeditiously by the Commission, and

presented to this Court opportunely on an adequate

record.

3. The Memorandum states that the Third’ and

Ninth* Circuits have viewed the Commission’s Spe-

cialized Common Carrier® decision as involving only

private line service (p. 5). Both courts affirmed Com-

mission decisions e.rtending competition by specialized

carriers. Neither imposed any restrictions on the ser-

vices and facilities which could be provided, or reached

the question whether the public convenience and neces-

sity require that limitations be imposed (see South-

ern Pacific Communications Company brief in oppo-

sition, pp. 7-9).

4. The issue is not whether the Commission and the

earriers described the specialized carrier services in

terms of private line services, but whether the Commis-

* 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. 886 (1975).

? Washington Utilities & Transportation Commission v. FCC,

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

Regulatory Utility Commissioners v. FCC, 423 U.S. 836 (1974).

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

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

(1971).

4

sion has effectively limited their offering to private line

by making the affirmative determination required by

statute that the public convenience and necessity so

require. The Commission granted certificates of public

convenience and necessity to specialized carriers for

the lines or facilities ‘‘applied for’’ under Section

214(c) of the Communications Act. It is undisputed

that it made no affirmative determination then or at any

other time, as also provided under the same subsection

of the Act, that ‘‘the public convenience and neces-

sity * * * require’’ that limitations be placed upon their

use of the lines or facilities.

Respectfuily submitted,

THORMUND A. MILLER

RicHarp S. Kopr

JamMeES M. Tosin

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

STEPTOE & JOHNSON

1250 Connecticut Avenue, N.W.

Washington, D.C. 20036

Of Counsel

November 29, 1977

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