Reply Brief — FEDERAL COMMUNICATIONS COMMUNICATIONS COMMISSION v. MCI COMMUNICATIONS CORP. (Nos. 78-216, 78-217)

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No. 78-270

re TITK, J, LENE

| Iu the Supreme Court of the United States

OCTOBER TERM, 1978

FEDERAL COMMUNICATIONS COMMISSION, PETITIONER

Vv.

MCI TELECOMMUNICATIONS CORPORATION, ET AL,

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

PETITIONER’S REPLY

ROBERT R. BRUCE

General Counsel

DAVID J. SAYLOR

Deputy General Counsel

DANIEL M. ARMSTRONG

Associate General Counsel

JOHN E. INGLE

Counsel

Federal Communications

Commission

Washington, D.C. 20554

(202) 632-7112

: 7a § ee One eh ey ee ee

; Q a

Te eee ee

INDEX

Page

1. Intrusion into Administrative Process... 2

2. Expansion of Mandate. 4

8. Error in Statutory Construction Ww 7

4. Conflict with the ect, Ait, PEC ele 9

5. Ripeness and Timeliness aN OO ROT 14

CONCLUSION . ws als 16

CITATIONS

Court decisions:

Atchison, T. & S.F. R. Co. v. Wichita Bd. of Trade,

8 US. 0 (18) 10

Bell Telephone Co. of Penn. Vv. FCC, 508 F.2d 1250

(8rd Cir. 1974), cert. denied, 422 U.S. 1026, reh.

denied, 423 U.S. 886 ARE aa aa 2, 8, 9-14

Federal Communications Comm’n v. Pottsville

Broadcasting Co., 309 U.S. 184 (1940) ..... ataleas 12

Federal Trade Comm’n vy. Colgate-Palmolive Co.,

Wer Oh ON COD 15

Securities & Exchange Comm’n. v. Chenery Corp.,

OO Sane ie 12

Securities & Exchange Comm’n V. Chenery Corp.,

seh aanhot 4, TE DET tg 12

Washington Util. & Transp. Comm’n v. FCC, 518

F.2d 1142 (9th Cir.), cert. denied, 423 U.S. 886

SOF iahisiintinisiincedihantccordgtegc Sal 7,11

Agency decisions:

Bell System Tariff Offerings, 46 FCC 2d 418

(1974), aff'd sub nom. Bell Telephone Co. of

Penn. Vv. FCC, 508 F.2d 1250 (8rd Cir. 1974),

cert. denied, 422 U.S. 1026, reh. denied, 423 U.S.

eosin custnce Cr OEE ct al 12

Microwave Communications, Inec., 18 FCC 2d 958

(1969), 21 FCC 2d 190 ee 7

(1978) .. 14

Agency decisions—Continued Page

Specialized Common Carrier Services, 29 FCC 2d

870, 31 FCC 2d 1106 (1971), aff'd sub nom.

Washington Util. & Transp. Comm’n v. FCC,

518 F.2d 1142 (9th Cir.), cert. denied, 423 U.S.

836 (1975) om 7, 8, 9, 12, 13

Specialized Common Carrier Services (Notice),

24 FCC 2d 318 (1970) 8

Other citations:

Communications Act of 1934, 48 Stat. 1064, as

amended, 47 U.S. § 151-609:

Section 201 A, 5, 6, 7, 8, 9, 10, 11

Section 214..... ; 4, 6, 7,8

Iu the Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-270

FEDERAL COMMUNICATIONS COMMISSION, PETITIONER

Vv.

MCI TELECOMMUNICATIONS CORPORATION, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

PETITIONER’S REPLY

The Federal Communications Commission, in re-

sponse to oppositions filed by MCI Telecommunica-

tions Corp. and Southern Pacific Communications Co.,

respectfully submits this reply in support of its peti-

tion for a writ of certiorari." The Commission’s peti-

tion rests on (1) a direct and irreconcilable conflict

between the decision below (Pet. App. 1A-24A) and

an earlier decision of the Third Circuit construing the

1 Companion petitions were filed by the United States Inde-

pendent Telephone Ass’n (No. 78-216) and the American

Telephone & Telegraph Co. (No. 78-217).

(1)

same FCC interconnection orders (Pet. 22-26);* (2)

the court of appeals’ improper expansion of its previ-

ous mandate* to govern matters that court had not

considered or decided in the earlier case (Pet. 27-29) ;

(3) judicial intrusion into the administrative process,

by making and implementing substantive-communi-

cations policy (Pet. 29-32); and (4) error in statu-

tory interpretation and construction of fundamental

communications policy decisions of the FCC (Pet. 32-

36).*

The oppositions have not refuted our arguments in

support of certiorari. In this brief reply, we address

several basic failings in the oppositions which reflect

similar failings in the decision of the court of appeals.

1. Intrusion into Administrative Process.

The court of appeals plainly has performed an

administrative function by directly requiring inter-

connection to implement “the intended effect” of its

own earlier policy decision in Execunet I. The oppo-

* Bell Telephone Co. of Penn. v. FCC, 503 F.2d 1250 (3rd

Cir. 1974), cert. denied, 422 U.S. 1026, reh. denied, 423 U.S.

886 (1975). The Third Circuit’s opinion is reproduced in

the Appendix to AT&T’s petition in No. 78-217, pp. 1g-63g.

*MCI Telecommunications Corp. v. FCC, 561 F.2d 365

(D.C. Cir. 1977), cert. denied, 434 U.S. 1040 (1978) (Pet.

App. 1B-33B).

* The opinion of the court of appeals now has been reported

at 580 F.2d 590.

° See Pet. App. 18A, where the court of appeals stated that

the FCC’s declaratory order on interconnection “deliberately

frustrates the purpose of the litigation, the basis on which

it was presented by the parties, and the intended effect of

our decree.”

sitions of MCI and Southern Pacific, although deny-

ing in abstract terms that this is the case,° do not

contend that the court of appeals merely remanded

the matter to the FCC for correction of legal error.

Indeed, they could not make such an argument, as

an examination of the proceedings below shows.

MCI phrased its request for relief in Execunet II

as follows:

It is requested that the Federal Communications

Commission be ordered to direct the American

Telephone and Telegraph Company (AT&T) and

its local operating companies (Bell Companies)

to continue to provide the local interconnections

required by MCI to provide, over its existing

facilities, Execunet service and all of its other

authorized services. It is further requested that

the Court rule * * * that AT&T and the Bell

companies must provide such interconnections.

MCI’s Motion for an Order Directing Compliance

with Mandate, pp. 1-2." The court of appeals granted

the motion without any indication that it was order-

ing anything less than or different from the relief

MCI had requested. App. 1A-2A, 4A-5A, 24A. Nor

did anything in the order or the attached opinion

purport to remand the matter to the FCC for correc-

tion of legal error. Instead, the court of appeals

directly performed the administrative act of requir-

® MCI Opposition 25-27; Southern Pacific Opposition 15, 19-

20.

* See also, id., p. 8; MCI’s Reply to Oppositions (to its mo-

tion for an order directing compliance with mandate), pp. 50-

51.

ing interconnection * to effectuate MCI’s judicially

created “right to enter the [long distance telephone

service] market now.” Pet. App. 10E. This Court

should grant certiorari to restore the appellate proc-

ess to its proper and lawful bounds. See Pet. 29-32.

2. Expansion of Mandate

The oppositions argtie, in effect, that the court of

appeals did not improperly expand its mandate in

Execunet II, because its interconnection order was

essential to implement the “intended effect” of the

earlier decree.’ The fundamental flaw in this reason-

ing is that the court of appeals simply may not have

an “intended effect” other than the correction of error

it has perceived and identified in review proceedings.

As we pointed out in our petition—and, indeed, as

the court of appeals itself was at pains to state in

FE.cecunet I, and as MCI and Southern Pacific assured

this Court in their oppositions to certiorari in that

earlier stage of proceedings—the Commission was re-

versed in Execunet I on the sole ground that the

agency had not “properly exercised” its authority

under Section 214(c) to restrict MCI’s use of its

own facilities to private line services. Pet. App. 22B-

® Section 201(a) gives the FCC the authority to require

carrier interconnection after opportunity for hearing and

on the basis of an affirmative public interest finding. 47 U.S.C.

§ 201(a). The FCC believes that it has had no hearing and

made no finding that would justify an order of interconnection

for ordinary long distance telephone service. Pet. App. 36C-

44C.

® MCI Opposition 15-18; Southern Pacific Opposition 12-16.

31B. The mandate arising from such a decision—as

any other judicial mandate—can govern only those

matters the court considered and decided directly.

See Pet. 27-29, and cases cited.

The oppositions also parrot a distortion of the ear-

lier Execunet I holding by which the court of appeals

tried to justify its interconnection order as a mere

enforcement of mandate. The Commission had taken

the position in its declaratory ruling that intercon-

nection for MTS, WATS and similar services (such

as Execunet) was not encompassed in its prior Sec-

tion 201(a) orders because those services had been

“excluded from both the considerations and holdings”

of the proceedings that led to the orders. Pet. App.

39C-40C. The court of appeals rejected that reason-

ing, stating:

[The Commission] formulates the final and dis-

positive question for resolution as that of “what

services were explicitly excluded from considera-

tion in Specialized Common Carrier, Bell System

Tariff Offerings, and Bell Tel. Co. of Pennsyl-

vania.” * * * And that is precisely the question

we addressed and answered in Execunet, finding

that Execunet services were not explicitly ex-

cluded.

Pet. App. 23A-24A, 5E. See MCI Opposition 16-17;

Southern Pacific Opposition 14.

But the court of appeals in Execunet I answered

no such question. In fact, it assumed, for the sake of

argument, that the FCC had not considered services

like Execunet in its policy-making proceedings. Pet.

App. 27B, 30B, 32B. On that assumption, the court

stated:

Nonetheless, it is readily apparent that failure

to consider the public interest ramifications of a

service—either pro or con—during resolution of

a Section 214(a) application is simply not the

same thing as an affirmative determination that

the “public convenience and necessity may re-

quire” a restriction on a facility authorization

limiting a carrier to provision solely of these

services proposed in its Section 214(a) applica-

tion.

Pet. App. 27B-28B (emphasis added). Thus, the

court of appeals found in Execunet I that exclusion

of certain services from consideration was not a suffi-

cient basis for inferring that those services were for-

bidden.” The court plainly did not find “that Exec-

unet services were not explicitly excluded.” Pet. App.

24A. The court’s gross distortion now of its own

earlier opinion is justification alone for this Court

to grant certiorari and properly construe the Execu-

net I mandate on the basis of matters actually con-

sidered and decided.

1 The FCC’s analysis of the Section 201(a) interconnection

question is entirely consistent with the court of appeals’ rea-

soning in Execunet I. Because Section 201(a) requires an

affirmative determination that MTS/WATS interconnection

is “necessary or desirable in the public interest,” a failure to

consider those services (i.e., exclusion of those services from

the scope of the inquiry in the Specialized Common Carrier

Services proceeding) is not sufficient to create the intercon-

nection obligation in question. Pet. App. 28C-43C, 55C-57C;

Pet. 14-19.

3. Error in Statutory Construction.

MCI and Southern Pacific evade any direct re-

sponse to our assertion that the FCC has never pro-

vided the requisite opportunity for hearing or made

the requisite public interest finding to support an

unbounded interconnection order. Instead, the argu-

ment appears to be merely that the “expansive in-

terpretation” the court of appeals gave to MCI’s

facilities authorizations under Section 214 “man-

dates an equally expansive view of the scope of the

interconnection obligations of AT&T * * *.” MCI

Opposition 23-24; Southern Pacific Opposition 10, 14,

18; Pet. App. 17A.

But interconnection rights and obligations under

Section 201(a) are not mere corollaries to facilities

authorization under Section 214." Pet. 15-16, 32-36.

“ The history of MCI’s entry into the communications busi-

ness bears witness to the distinction between the right to

erect and operate one’s own facilities and the right to inter-

connect those facilities with other carriers. In Microwave Com-

munications, Inc., 18 FCC 2d 953 (1969), 21 FCC 2d 190

(1970), the FCC granted MCI its first authorizations to erect

facilities to offer private line services; but it expressly re-

served jurisdiction to resolve the separate question of inter-

connection. 18 FCC 2d at 965. On reconsideration, the FCC

rejected claims that its Section 214 grants had prejudged

the Section 201(a) question, pointing out that it had not

ordered interconnection but had “retained jurisdiction” tc re-

soive that matter if MCI should present a “particular applica-

tion.” 21 FCC 2d at 193. See also Specialized Common Serv-

ices, 29 FCC 2d 870, 31 FCC 2d 1106 (1971), aff'd sub nom.

Washington Util. & Transp. Comm. v. FCC, 513 F.2d 1142

(9th Cir.), cert. denied, 423 U.S. 836 (1975), where the FCC

posed and resolved separate issues as to facilities authoriza-

tion, on the one hand, and interconnection on the other, in-

Congress provided a separate statutory provision to

govern interconnection, expressly requiring an “op-

portunity for hearing” and affirmative public interest

findings before the agency may order unwilling car-

riers to make their facilities available to other

carriers.” The court’s interconnection order disre-

gards the crucial hearing and public interest findings

that Section 201(a) requires, and thus misconstrues

and misapplies the relevant statute.

Southern Pacific “responds” to one argument that

the petitioners did not make: that the statute re-

quires an “evidentiary” hearing. Southern Pacific

Opposition 18. See also MCI Opposition 23. The FCC

acknowledges—indeed, it argued the point success-

fully in the Third Circuit “—that its notice and com-

ment rulemaking in Specialized Common Carrier

voking both Section 214 and Section 201 (a) as statutory

authority for its actions. 29 FCC 2d at 878. See also 24 FCC

2d 318, 327, 349 (1970) (Notice of Inquiry to Formulate

Policy, Notice of Proposed Rule Making, and Order).

2 The court’s assertion that the FCC did not rest its de-

claratory ruling on current public interest findings is wholly

beside the point. Pet. App. 9E-10E; Southern Pacific Opposi-

tion 15. The FCC was disposing of a request for clarification

of existing interconnection obligations under prior orders.

Surely the proper inquiry for the agency was not “what clari-

fication of those prior orders would best serve the public inter-

est,” but rather “what do those orders mean.” The FCC may

consider further interconnection in further proceedings which

give proper notice and afford an opporiunity for meaningful

participation. But the FCC may not revise history and dis-

tort its own past orders on the basis of current notions of the

public interest.

8 Bell Telephone Co. of Penn. v. FCC, 503 F.2d at 1259-68.

)

Services “ satisfied the hearing requirement of Sec-

tion 201(a) insofar as that proceeding ordered pri-

vate line services interconnection. Our hearing argu-

ment in this case is that Specialized Common Carrier

Services could not justify an interconnection order

embracing services that were not considered. It is

no answer to that argument to assert merely that the

denial of interconnection “frustrates the purpose” of

MCI’s litigation and the “intended effect” of the

court’s decree. Pet. App. 18A. Neither the court of

appeals nor the parties opposing our petition can

claim that the FCC gave notice of or an opportunity

to comment on interconnection for MTS, WATS and

similar services. Our contention thus remains unre-

futed.

4. Conflict with the Third Circuit.

MCI and Southern Pacific, like the court of appeals,

lose sight entirely of the issues the Third Circuit

decided, in their efforts to reconcile Bell of Pennsyl-

vania™” with Execunet II. Pet. App. 18A-24A, 6E-

9E; MCI Opposition 18-21; Southern Pacific Opposi-

tion 16-19. The Third Circuit necessarily considered

and ruled on the scope of AT&T’s interconnection

obligation under the same orders the D.C. Circuit

considered in Execunet II. Pet. 22-26. The Third

Circuit expressly found and held that the FCC had

limited the obligation to private line services, 503

4 Supra, 29 FCC 2d 870, 31 FCC 2d 1106.

15 Supra, 503 F.2d 1250.

F.2d at 1262, 1270-74; the D.C. Circuit, finding that

the interconnection obligation was “equally expan-

sive” with MCI’s unlimited service authorizations,

held in effect that there was no limitation at all on

AT&T’s obligation and MCI’s rights, Pet. App. 13A-

18A, 23A-24A, 9E-11E. The conflict could hardly be

more direct and irreconcilable.”

The conflict also pervades the reasoning behind the

disparate opinions. The D.C. Circuit disregarded the

fact that the Third Circuit analyzed the interconnec-

tion orders in depth to determine (1) whether the

FCC had satisfied Section 201(a); (2) what the FCC

had considered in its inquiry; (3) the adequacy of

notice and of hearing opportunities; and (4) whether

the orders were fatally vague or overbroad. In each

aspect of its analysis, the Third Circuit came back

to and relied upon the central fact that the FCC was

ordering interconnection only for private line serv-

ices. 503 F.2d at 1259-74. This was crucial to its

1% AT&T’s argument that the Third Circuit has exclusive

jurisdiction to construe the FCC’s interconnection order has

practical as well as legal force. See AT&T Pet. 17-22; Pet. 33

n.38. If the D.C. Circuit had deferred to that court as the

proper forum to review the FCC’s declaratory ruling, there

would be no question of conflict between the circuits and no

cause to invoke this Court’s jurisdiction on that ground. While

conflicts may not always be avoided, this one plainly was not

necessary. The D.C. Circuit was well aware of the Third Cir-

cuit’s prior decision and of the petitioners’ position that the

Third Circuit’s decision was controlling. The D.C. Circuit’s

insistence on granting MCI’s motion demonstrates the court’s

preoccupation with its own policy determination in Execunet

I and its zeal to implement that policy. Cf. Atchison, T. &

S.F. R. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973).

resolution of arguments about the adequacy of notice

and hearing, claims that the order was vague and

overbroad,” and allegations that the FCC was un-

lawfully expanding its own policy to encompass serv-

ices that its rulemaking proceeding had not contem-

plated. Id. See Pet. 22-26.

The D.C. Circuit, in contrast, virtually ignored the

requirements of Section 201(a) and the problems of

overbreadth, notice and hearing that had been the

focus in the Third Circuit. Instead, it considered the

motion in terms of consistency with the “basic

themes” of Execunet I,” its own (unexpressed) con-

templation in the earlier case that interconnection

was required,” its notion of what would be “strikingly

17The parties supporting the FCC’s orders in the Third

Circuit—including MCI, Southern Pacific and the Department

of Justice through its Antitrust Division—assured the court

that the orders extended only to private line services. Pet.

App. 32C-33C, 37C. The court’s reliance on those assurances

is evident in its opinion. See Pet. n.28 at 24-25. MCI made

similar representations to this Court—as did the FCC and

the Department of Justice—in opposing a petition for certio-

rari to the Third Circuit. AT&T v. FCC, No. 74-1229, 422

U.S. 1026. MCI’s condemnation now of “dissimulation” and

“holding back of arguments,” MCI Opposition 14, invites

critical comparison of its own positions now with those it took

before the FCC and the courts in earlier stages of specialized

common carrier development. Pet. App. 32C-33C, 37C; Pet.

n.26 at 16-17. See also MCI’s oppositions to certiorari in

AT&T v. FCC, No. 74-1229, supra, and National Ass’n of Reg.

Util. Commissioners V. FCC, No. 74-1550, 423 U.S. 836.

18 Pet. App. 17A.

19 Pet, App. 12A, 17A.

unfair’ to MCI,” and concern for the “intended effect

of [its] decree.” *

The D.C. Circuit thus posed a simple syllogism to

resolve the interconnection question:

1. The FCC in Specialized Common Carrier Serv-

ices, supra, and Bell System Tariff Offerings™ or-

dered AT&T to interconnect with the specialized car-

riers for all their authorized services;

0 Pet. App. 12A.

21 Pet. App. 18A. The D.C. Circuit also discussed “represen-

tations and actions” by AT&T in the earlier case which the

court regarded as concession of the interconnection issue. Pet.

App. 12A-13A. Although the court did not rest its decision in

Ezxecunet II on estoppel, Pet. App. 13A, the oppositions make

much of this point, MCI Opposition 15-16; Southern Pacific

Opposition 12-13. But there can be no estoppel here. See Pet.

n.32 at 27-28. When the court of appeals reversed the Com-

mission in Execunet I on grounds that MCI’s certificates were

not limited, the Commission was entirely free on remand to

take into account issues and factors that the court had not

foreclosed in its decision. Securities & Exchange Comm’n V.

Chenery Corp., 332 U.S. 194, 200-01 (1947); Federal Com-

munications Comm’n V. Pottsville Broadcasting Co., 309 U.S.

134, 145 (1940). There can be no legitimate claim that the

FCC has resorted to “piecemeal” litigation, holding the inter-

connection point in reserve. There simply was no reason for

the FCC to consider alternative grounds for rejecting MCI’s

Execunet offering, because there had been no suggestion before

Execunet I that MCI had authority beyond private line serv-

ices. As a procedural matter, of course, FCC counsel could not

have raised the interconnection question in the courts because

it had not been the basis for the agency’s decision. See Securi-

ties & Exchange Comm’n V. Chenery Corp., 318 U.S. 80, 87

(1943).

22 46 FCC 2d 413 (1974), aff'd sub nom. Bell Telephone Co.

of Penn. v. FCC, supra, 503 F.2d 1250.

2. Execunet I established that MCI, a specialized

carrier, was authorized to offer Execunet (as well as

any other service its facilities were. capable of pro-

viding) ; and

3. Therefore, AT&T has been ordered to inter-

connect with MCI for purposes of offering Execunet

(as well as any other service MCI’s facilities are

capable of providing). Pet. App. 13A-18A.

The court’s attempt to reconcile its decision with

the Third Circuit’s* is not responsive to our claim

of conflict. The Third Circuit had to determine the

reach of the interconnection requirement. It found

that FX and CCSA were within that reach because

they were private line services. Moreover, that court

found that the interconnection orders were not over-

broad because they were limited, when read in con-

text, to private line services. The entire theory of

that case, as well as its express holdings on issues

that AT&T raised directly, requires the conclusion

that the Third Circuit held the interconnection orders

to be limited to private line services.

The D.C. Circuit and the oppositions would have

this Court disregard the essential analysis and hold-

ings of Bell Telephone Co. of Penn. and to entertain

the fiction that no conflict exists. But the D.C. Cir-

2° “TJjust as the Third Circuit found Specialized Carrier

sufficiently broad to include FX and CCSA service, notwith-

standing the absence of specific references to those services,

so too we have found that decision broad enough to encompass

Execunet, notwithstanding the similar absence of specific ref-

erences.” Pet. App. 21A; 7E-8E.

** Pet. 22-26.

cuit could not amend or erase the Third Circuit’s

decision by means of a subsequent decision resolving

a “very different issue.” Pet. App. 27B n.59. This

Court should grant the petition to resolve the con-

flicting mandates, so that the Commission will know

which to obey.

5. Ripeness and Timeliness.

The oppositions appear to argue that the petitions

come both too early and too late.” They are too early,

it is claimed, because the court of appeals really has

not done anything yet; and they are too late because

this Court denied certiorari in Execunet I.

Review now surely would not be premature. The

D.C. Circuit already has adopted and implemented

communications policy in derogation of the FCC’s

responsibility. It has improperly ordered intercon-

nection in violation of the applicable statute. It has

expanded its prior mandate to cover matters it had

not considered and decided before. It has ruled in

direct and irreconcilable conflict with the Third Cir-

cuit. There is no reason for this Court to wait fur-

ther.” .

25 Compare MCI Opposition 14, 18 and Southern Pacific Op-

position 14-15, with MCI Opposition 25-27 and Southern Pa-

cific Opposition 19-21.

2¢ The Commission’s ongoing inquiry into MTS/WATS com-

petition, MTS and WATS Market Structure (CC Docket No.

78-72), 67 FCC 2d 757 (1978), cannot correct the serious

judicial errors the D.C. Circuit has committed. While that

proceeding will consider interconnection questions in the con-

text of broad agency policy, it cannot restore the proper roles

of agency and court that Ezecunet II has grossly distorted.

The argument of prematurity, moreover, sounds

now like a cry of “wolf” in the light of similar argu-

ments opposing certiorari in Execunet I. See Pet.

13. MCI and Southern Pacific may not evade review

in this Court by denying breadth in the orders below,

while the court of appeals purports to enforce those

orders according to their most “expansive interpreta-

tion.” ” )

As for lateness, we have made clear that our peti-

tion seeks review of Execunet II. E.g., Pet. 8 n.3.

Our petition assumes that Execunet I is now binding

on the Commission. Jd. We do not dismiss the possi-

bility that the Court, upon granting our petition, will

look to the underlying decision as well.” But our

petition looks to Execunet II only and plainly is

timely filed. Pet. 2.

** Compare Pet. App. 32B-33B with id. 17A-18A and 10E.

*® By adopting the device of an order enforcing the Execunet

I mandate and interpreting that mandate expansively to gov-

ern matters not previously considered and decided, the D.C.

Circuit itself may have opened the earlier decision to review.

Cf. Federal Trade Comm’n V. Colgate-Palmolive Co., 380 U.S.

374, 378-84 (1965), and cases cited at 379.

CONCLUSION

The Court should grant the petition.

Respectfuly submitted,