# Amicus Brief — United States Independent Telephone Ass'n v. MCI Telecommunications Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2567%3A06 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1040 ## Text 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 St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477 eR —~ « . C4 a * . . . « ‘ - . y ae Bs oe, - . t i -~ “ ba . wv oh A 4 i a . . é i » = af re - * - « - . ° . ; a . 4 « * — i « < é . a > = . 7 7 4 mn ee « . ie - s é = * 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 PECUD CE TRG con cod ceccccsbesvcwes veces 2 eee ee ee ee er ere ee re + 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2567%3A06. Public record. Not legal advice.