Amicus Brief — United States Independent Telephone Ass'n v. MCI Telecommunications Corp.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

vo. 77-436

FEDERAL COMMUNICATIONS COMMISSION,

Petitioner,

’

MCI TELECOMMUNICATIONS CORPORATION, MICROWAVE

COMMUNICATIONS, INC., and N-TRIPLE-C, INC..

Respondents.

On Petition for Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF OF THE

TENNESSEE PUBLIC SERVICE COMMISSION

EUGENE W. WARD

General Counsel

T. E. MIDYETT, JR.

Assistant General Counsel

TOM ELDRIDGE

Assistant General Counsel

Tennessee Public Service Commission

Cordell Hull Building

Nashville, Tennessee 37219

(615) 741-3191

October 12, 1977

ES TR RE A AR ME SE

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INDEX

Table of Authorities

MCI Telecommunications Corp. Investigation Into the

Lawfulness of Tariff FCC No. 1 Insofar as It Purports

to Offer Execunet Service, 60 F.C.C. 2d 25 (1976) ...

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

ks ChbGkerdddees + Neha V bee seek eauecioees

Washington Utilities & Transp. Comm'n. v. FCC, 513 F.

2d 1142 (9th Cir.), cert. denied, 423 U.S. 836 (1975) .

Miscellaneous Cited

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

_ pee

FEDERAL COMMUNICATIONS COMMISSION,

Petitioner,

v.

MCI TELECOMMUNICATIONS CORPORATION, MICROWAVE

COMMUNICATIONS, INC., and N-TRIPLE-C, INC.,

Respondents.

On Petition for Writ of Certiorari to the United States Court of Appeals

for the District of Columbia Circuit

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE AND BRIEF OF THE

TENNESSEE PUBLIC SERVICE COMMISSION

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE

Comes now Bob Clement, Chairman, Z. D. Atkins, Commis-

sioner, and Frank D. Cochran, Commissioner, duly-elected Ten-

nessee Public Service Commissioners, and respectfully move the

an tian

Court for leave to file the attached Brief Amicus Curiae in

Support cf the Petition for Writ of Certiorari in the above-cap-

tioned cause.

In support of this Motion, the TPSC would show:

That the Tennessee Public Service Commission is an agency

of the State of Tennessee created in its present form by the Act

of the Tennessee General Assembly in 1897. That it is the

agency in the State of Tennessee with authority to regulate,

supervise and control all public utilities, pursuant to the Public

Acts of 1919. That it sets the rates, services and charges of

all public utilities in this State, including the granting of fran-

chises, certificates, etc. That its duties are to see that-the rate-

payers of this State receive the best and highest service possible

for their rate dollar. That it is a member of the National As-

sociation of Regulatory Utility Commissioners, a quasi-govern-

mental non-profit organization founded in 1889. That the

TPSC hereby moves the Court for leave to file Amicus Curiae

Brief in Support of the Amicus Curiae Brief of the National As-

sociation of Regulatory Utility Commissioners.

This case is before this Court on a Petition for a Writ of

Certiorari to the United States Court of Appeals for the District

of Columbia Circuit. The Court of Appeals had before it a peti-

tion for review, initiated by MCI Telecommunications Corpora-

tion, Microwave Communications, Inc., and N-Triple-C, Inc.

(MCT), of a decision of the Federal Communications Commis-

sion (FCC) holding that MCI had exceeded its authorization,

limited to the offering of private line services, by providing a

a service called “Execunet”, which the FCC found was not a

private line service at all but instead was the equivalent of mes-

sage telephone service (ordinary long distance service). MCI

Telecommunications Corp. Investigation Into the Lawfulness of

Tariff FCC No. 1 Insofar as It Purports to Offer Execunet Serv-

ice, 60 F.C.C. 2d 25 (1976). The FCC’s decision with respect

on tian

to Execunet was predicated upon its earlier decision, Specialized

Common Carrier Services, 29 F.C.C. 2d 870 (1971), in which

it had articulated the findings and evidence in support of its con-

clusion that the entry of MCI and other specialized common car-

riers, limited to the offering of private line services, was in the

public interest. That decision was affirmed by the Court of Ap-

peals for the Ninth Circuit in a decision which this Court elected

not to review further. Washington Utilities & Transp. Comm'n.

v. FCC, 513 F. 2d 1142 (9th Cir.), cert. denied, 423 U.S. 836

(1975). In disrega:d of those decisions and the FCC's con-

tinued rearticulation and reapplication of its now settled policy

determination limiting MCI and other specialized common car-

riers to the provision of private line services, the Court of Ap-

peals below held that MCI, and presumably all other specialized

common carriers, are not limited to the offering of private line

services and can offer ordinary long distance service and any

other services they choose between and among the states through-

out the country.

The Tennessee Public Service Commission, like the NARUC,

has an historic and vital interest in the disposition of the Petition

for Writ of Certiorari now pending before this Court. The de-

cision of the Court of Appeals, by improperly setting aside the

FCC’s determination that MCI was not and is not authorized to

provide Execunet service and, thereby, for the first time per-

mitting competition for message telephone service in addition to

private line service, will have a direct and potentially staggering

effect both upon regulatory policies developed over decades to

promote the availability of local telephone service at reasonable

rates and upon the rates for those services themselves.

This Court’s disposition of this case will have a direct impact

upon the ability of State regulatory commissions to discharge

their responsibilities on behalf of the citizens within their re-

spective borders. Accordingly, the TPSC submits that its par-

ticipation in these proceedings is essential to insure the full and

evtian

adequate representation of the interests of the State of Ten-

nessee.

Wherefore, it is respectfully requested that this Court grant

leave for the filing of a brief by the Tennessee Public Service

Commission, as amicus curiae, in this case.

Dated this 10th day of October, 1977.

EUGENE W. WARD

General Counsel

T. E. MIDYETT, JR.

Assistant General Counsel

TOM ELDRIDGE

Assistant General Counsel

Tennessee Public Service Commission

Cordell Hull Building

Nashville, Tennessee 37219

(615) 741-3191

—_—

BRIEF FOR THE TENNESSEE PUBLIC

SERVICE COMMISSION

AMICUS CURIAE

The Tennessee Public Service Commission submits, as pro-

vided by Rule 42 of the Rules of this Court, the following brief

amicus curiae in support of the Petition for Writ of Certiorari

filed by the Federal Communications Commission.

OPINION BELOW

The opinion of the United States Court of Appeals for the

District of Columbia Circuit, dated July 28, 1977, is not re-

ported. The opinion of the Federal Communications Commis-

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

QUESTION PRESENTED

This case presents questions vital to the Tennessee Public

Service Commission and to the consumers throughout the State

of Tennessee. .

INTEREST OF AMICUS CURIAE

The interests of the Tennessee Public Service Commission as

amicus curiae are set forth in the attached motion for leave to

file this brief.

STATEMENT

The Tennessee Public Service Commission, being a member

of the NARUC, does here and now adopt the statement hereto-

fore filed by the NARUC amicus curiae on September 27, 1977.

REASONS FOR GRANTING THE WRIT

The Decision of the Court of Appeals Is in Conflict With the

Decisions of This Court and the Court of Appeals Permitting

Administrative Agencies to Utilize Rulemaking Proceedings to

Establish Policies for Application in Subsequent Proceedings.

The Tennessee Public Service Commission hereby adopts

pages 18-25 of the NARUC’s Amicus Curiae Brief filed on Sep-

tember 27, 1977.

CONCLUSION

For the foregoing reasons, the Tennessee Public Service Com-

mission respectfully requests that this Court grant the Petition

for Writ of Certiorari and summarily reverse the Court of Ap-

EUGENE W. WARD

General Counsel

T. E. MIDYETT, JR.

Assistant General Counsel

TOM ELDRIDGE

Assistant General Counsel

Tennessee Public Service Commission

Cordell Hull Building

Nashville, Tennessee 37219

(615) 741-3191

October 10, 1977

Certificate of Service

I certify that I have served a copy of this Motion and Brief

on the following parties:

John E. Ingle

1919 M. Street, N.W.

Washington, DC 20554

John Shevefield

Acting Asst. Attorney General

Department of Justice

Washington, DC 20530

Michael H. Bader

Haley, Bader, Potts

1730 M. Street, NW

Washington, DC 20036

Michael Boudin

888 16th Street, NW

Washington, DC 20006

Thomas J. O’Reilley

Chadbourne Parke

Whiteside & Wolff

1150 17th Street, NW

Washington, DC 20036

Charles A. Schneider

Assistant Generali Counsel

1102 ICC Building

P. O. Box 684

Washington, DC 20044

Herbert E. Forrest

Steptoe & Johnson

1250 Connecticut Avenue NW

Washington, DC 20036

Dickstein, Shipiro & Morin

Attorneys at Law

2101 L Street, NW

Washington, DC 20037

David A. Donohoe, Trustee

Akin, Gump, Haven, Feld

1155 15th Street, NW

Washington, DC 20005

Wade H. McCree

Department of Justice

Washington, DC 20530

Paul Rodgers

General Counsel

1102 ICC Building

P. O. Box 684

Washington, DC 20044

William R. Nusbaum

Deputy Assistant General Counsel

1102 ICC Building

P.O. Box 684

Washington, DC 20044

This 10th day of October, 1977.

EUGENE W. WARD