Before Campbell, Chief Judge, Breyer, Circuit Judge, and Gierbolini,*fn* District Judge.
MEMORANDUM AND ORDER
This court held that private parties could not use § 402(b) of the Communications Act to enforce an FCC rule because the word "order" in that section does not include agency rules, but, rather, refers to "adjudicatory" orders. New England Telephone, with support from the FCC, seeks a rehearing. The panel's opinion considered most of the arguments they raise; but three points require further comment.
First, New England Telephone now argues that the district court enforced, not only the FCC's Preemption Order (a "rulemaking" order), but also the Prescription Order (an "adjudicatory" order); it adds that the latter order provides adequate basis for § 401(b) jurisdiction. This case, however, concerns an effort to apply the FCC's depreciation rules to intra-state rates. And, as we explained in our opinion, the Prescription Order expressly left open the question of where its rules would apply. The FCC decided to apply them intra-state in its later Preemption decision. Hence, this case is most naturally viewed as an effort to enforce the FCC's Preemption Order, which, in turn, incorporates the pre-existing Prescription Order depreciation rules. New England Telephone apparently began this case with this view, for it alleged in its complaint that it was "being substantially and irreparably harmed by Defendant PUC's unlawful refusal to obey the FCC's Preemption Order" (Complaint P10(a)); and New England Telephone asked that the PUC's action be declared unlawful in part "because it violates the Preemption Order, the Communications Act, and the United States Constitution," id. at 10. The FCC, in its amicus brief filed below, also characterized the case as one seeking enforcement of the Preemption Order. See Memorandum of Federal Communications Commission as Amicus Curiae, at 3. ("The FCC order that is before this Court for enforcement" is the Preemption Order.) The district court thought the same. See 570 F.Supp. 1558, 1565 (D. Me. 1983); 565 F. Supp. 949, 954 (D. Me. 1983). The first serious effort to recharacterize this case as one to enforce the Prescription Order (and to bring it via that route within 401(b)'s scope) appears in New England Telephone's rehearing petition. To accept its argument now would be unfair to other parties in the case. Thus, we reject it for that reason and because we believe it an unnatural, and hence incorrect, characterization of this federal suit.
Second, the FCC argues that our opinion runs contrary to precedent.But, that is not so. The main case the FCC cites, Ambassador, Inc. v. United States, 325 U.S. 317 (1945), appears to involve, not Communications Act § 401(b), but, rather, § 401(a). The Ambassador suit was brought by the Attorney General on behalf of the FCC to enforce a rule contained in a telephone company tariff. The Supreme Court found jurisdiction because "a departure" from the tariff "is forbidden by the Act," id. at 325, thus bringing the suit within the terms of § 401(a) (suit by Attorney General authorized "at the request of the Commission, alleging . . . a violation of any of the provisions of this chapter. . . ."). The suit also involved joinder of subscribers as parties under 47 U.S.C. § 411, which (in language that appears to apply to suits under 401(a), but not under 401(b)) authorizes joinder in proceedings "for the enforcement of the provisions of this chapter" (emphasis added). The FCC correctly points out that the Ambassador court does not cite § 401(a). It cites only to § 401 in general, without specifying "(a)" or "(b)". This fact, however, could at most show no more than that Ambassador is ambiguous. Ambiguity and court silence do not amount to controlling precedent. The second case the FCC relies upon, Brookhaven Cable TV, Inc. v. Kelly, 428 F.Supp. 1216 (N.D.N.Y. 1977), aff'd, 573 F.2d 765 (2d Cir. 1978), cert. denied, 441 U.S. 904 (1979) involved, not rulemaking, but a declaratory order as to which the defendant was a party. The Brookhaven court explicitly refused to decide the 401(b) question and instead rested jurisdiction on other grounds. The remaining cases, in district courts, arise out of the current depreciation controversy. As we said before, in none of them does the court directly address the question here at issue. Thus, we believe this a case of first impression. And the fact that we can find no reported instance in section 402(b)'s fifty year history in which a private party has used it to enforce an FCC rule is some evidence that it has not conventionally been thought designed for that purpose.
Third, the FCC appeals to "expertise" and "administrative convenience" to bolster its support for the telephone company's position. We do not believe that these considerations are sufficiently powerful here, however, to turn the tide. For one thing, the FCC's claim of an administrative "need" to enlist private, § 401(b), rule-enforcement efforts is not totally plausible in light of the lack of precedent. Perhaps such private enforcement efforts would help the FCC deal with potentially hostile state commissions in the immediate context of current telephone deregulation. But, if one steps back to ask the broader question -- whether, in general, a private right to enforce FCC rules is likely to serve the Communications Act's regulatory ends -- one must be more doubtful. As we previously stated, given the general language and broad scope of many FCC rules, to allow private rule enforcement risks significant court interference with FCC control over its own docket, with the FCC's power to interpret its own rules, and with the FCC's ability to set its own communications policy. The FCC now argues that, when rules are unclear, a § 402(b) court could use the doctrine of "primary jurisdiction" to obtain commission clarification. The primary jurisdiction doctrine, however, lacks both the clarity and the practical efficacy that would be necessary to repair such a contorted court/agency relationship. See Distrigas of Massachusetts Corp. v. Boston Gas Co., 693 F.2d 1113, 1119 (1st Cir. 1982); cf. Jaffe, Primary Jurisdiction, 77 Harv. L. Rev. 1037 (1964). Rather than rely upon this complex, ad hoc legal device, we draw the simpler conclusion that Congress did not intend Commission rules to fall within the scope of § 401(b)'s word "order," thereby leaving control of their interpretation and enforcement primarily in the hands of the FCC.
For another thing, we cannot accept the FCC's claim that we should simply defer to its view of the law, see Chevron U.S.A., Inc. v. Natural Resources Defense Council, 52 U.S.L.W. 4845, 4847 (U.S. June 25, 1984). Its "views" here do not reflect agency policy reached after debate among staff or commissioners. Rather, as far as we can tell, they simply represent the General Counsel's interpretation of the statute; they are contained only in his brief. Cf. Investment Company Institute v. Camp, 401 U.S. 617, 626-28 (1971) (counsel's efforts in course of litigation are "hardly tantamount to an administrative interpretation" of a statute); see generally Mayburg v. Secretary of Health and Human Services, Slip Op. No. 84-1022 (1st Cir. August 2, 1984) (discussing factors determining weight to be given to administrative interpretations of statutes). While counsel's experience entitles his opinion to respect, it cannot bind a court as to the meaning of a jurisdictional statute. Moreover, theFCC's legal argument here threatens a highly anomalous result. Its view of statutory construction is one that would place primary authority to decide pure questions of statutory law in the hands of the agency. At the same, its interpretation of the statute in question is one that would place considerable authority to decide questions of communications policy in the hands of the courts. Each institution -- court and agency -- would receive comparatively greater power in the area in which it, comparatively, lacks expertise. The resulting picture is one of classical administrative law principle turned upside down. At least, the position seems inconsistent with the sound court/agency working partnership that administrative law traditionally has sought.
The petition for rehearing is denied.
* Of the District of Puerto Rico, sitting by designation.