F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

JUL 31 2001

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
QWEST CORPORATION,
v.

Petitioner,

FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES
OF AMERICA,
Respondents,
AT&T CORP. (AT&T); RURAL
TELEPHONE COALITION;
VERMONT DEPARTMENT OF
PUBLIC SERVICE; STATE OF
CALIFORNIA AND THE PUBLIC
UTILITIES COMMISSION OF THE
STATE OF CALIFORNIA; THE
MAINE PUBLIC UTILITIES
COMMISSION (MAINE); PUERTO
RICO TELEPHONE COMPANY,
INC.; WORLDCOM, INC., formerly
known as MCI WORLDCOM, INC.;
BELL ATLANTIC-DELAWARE,
INC.; BELL ATLANTICMARYLAND, INC.; BELL
ATLANTIC-NEW JERSEY, INC.;
BELL ATLANTIC-PENNSYLVANIA,
INC.; BELL ATLANTIC-VIRGINIA,
INC.; BELL ATLANTICWASHINGTON, D.C., INC.; BELL
ATLANTIC-WEST VIRGINIA, INC.;
NEW YORK TELEPHONE
COMPANY; NEW ENGLAND

No. 99-9546

PATRICK FISHER
Clerk

TELEPHONE AND TELEGRAPH

COMPANY; THE WYOMING
PUBLIC SERVICE COMMISSION;
GTE SERVICE CORPORATION,
Intervenors.
QWEST CORPORATION,
v.

Petitioner,

FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES
OF AMERICA,
Respondents,
AT&T CORP. (AT&T); RURAL
TELEPHONE COALITION; PUERTO
RICO TELEPHONE COMPANY,
INC.; GTE SERVICE
CORPORATION; BELL ATLANTICDELAWARE, INC.; BELL
ATLANTIC-MARYLAND, INC.;
BELL ATLANTIC-NEW JERSEY,
INC.; BELL ATLANTICPENNSYLVANIA, INC.; BELL
ATLANTIC-VIRGINIA, INC.; BELL
ATLANTIC-WASHINGTON, D.C.,
INC.; BELL ATLANTIC-WEST
VIRGINIA, INC.; NEW YORK
TELEPHONE COMPANY; NEW
ENGLAND TELEPHONE AND
TELEGRAPH COMPANY;
WORLDCOM, INC., formerly known
as MCI WORLDCOM, INC.,

No. 99-9547

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Intervenors.
VERMONT DEPARTMENT OF
PUBLIC SERVICE; MONTANA
PUBLIC SERVICE COMMISSION;
MONTANA CONSUMER COUNSEL,
v.

Petitioners,

FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES
OF AMERICA,
Respondents,
AT&T CORP. (AT&T); BELL
ATLANTIC-DELAWARE, INC.;
BELL ATLANTIC-MARYLAND,
INC.; BELL ATLANTIC-NEW
JERSEY, INC.; BELL ATLANTICPENNSYLVANIA, INC.; BELL
ATLANTIC-VIRGINIA, INC.; BELL
ATLANTIC-WASHINGTON, D.C.,
INC.; BELL ATLANTIC-WEST
VIRGINIA, INC.; NEW YORK
TELEPHONE COMPANY; NEW
ENGLAND TELEPHONE AND
TELEGRAPH COMPANY; QWEST
CORPORATION,

No. 00-9505

Intervenors.
Petitions for Review of Orders of the
Federal Communications Commission
(CC Docket No. 96-45)

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Matthew A. Brill of Wilmer, Cutler & Pickering, Washington, D.C. (John H.

Harwood II, William R. Richardson, Jr., Francesca Bignami of Wilmer, Cutler &
Pickering, Washington, D.C.; Robert B. McKenna of Qwest Corporation, Denver,
Colorado; Steven R. Beck of Qwest Corporation, Washington, D.C., with him on
the briefs) for Petitioner Qwest Corporation.
Elisabeth H. Ross of Birch, Horton, Bittner and Cherot, Washington, D.C.
(Douglas S. Burdin, Allison M. Ellis of Birch, Horton, Bittner and Cherot,
Washington, D.C.; John Sayles of Vermont Department of Public Service,
Montpelier, Vermont; Martin Jacobson of Montana Public Service Commission,
Helena, Montana; Robert A. Nelson, Thomas S. Muri of Montana Consumer
Counsel, Helena, Montana, with her on the briefs) for Petitioners Vermont
Department of Public Service et al.
James M. Carr, Counsel (Christopher J. Wright, General Counsel, John E. Ingle,
Deputy Associate General Counsel, Lisa S. Gelb, Counsel, with him on the brief),
Federal Communications Commission, Washington, D.C., for Respondent Federal
Communications Commission.
Gene S. Schaerr of Sidley & Austin, Washington, D.C. (David L. Lawson, James
P. Young, Christopher T. Shenk of Sidley & Austin, Washington, D.C.; Mark C.
Rosenblum, Peter H. Jacoby, Judy Sello of AT&T Corp., Basking Ridge, New
Jersey; Thomas F. ONeil III, William Single, IV of WorldCom, Inc.,
Washington, D.C., with him on the brief) for Intervenors AT&T Corp. et al.
Elisabeth H. Ross of Birch, Horton, Bittner and Cherot, Washington, D.C.
(Douglas S. Burdin, Allison M. Ellis of Birch, Horton, Bittner and Cherot,
Washington, D.C.; John Sayles of Vermont Department of Public Service,
Montpelier, Vermont; Joel B. Shifman of Maine Public Utilities Commission,
Augusta, Maine, with her on the brief) for Intervenors Vermont Department of
Public Service et al.
Before EBEL, BALDOCK and KELLY, Circuit Judges.
EBEL, Circuit Judge.

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Agencies play an important role in rational governance because they

develop expertise in specialized areas. Principles of checks and balances,
however, demand that agencies provide full explanation for their actions to enable
effective judicial review.
In the cases before us, we reverse and remand the Ninth Order of the
Federal Communications Commission (FCC) because it does not provide
sufficient reasoning or record evidence to support its reasonableness. The order
established a federal funding mechanism to support universal telecommunications
services in high-cost areas. The consolidated petitions for review challenge the
sufficiency of this funding mechanism in view of certain statutory principles, such
as achieving reasonably comparable rates for basic telephone services in rural and
urban areas. We do not decide the underlying issue of whether the funding is in
fact sufficient; rather, we conclude that the FCC has not supported why the
funding is sufficient. In particular, the FCC did not (1) define key statutory terms
adequately; (2) set forth a rational basis for the particular benchmark it selected;
(3) adequately induce state mechanisms to support universal service; or (4)
explain how this piece of federal support for universal service relates to other
funding mechanisms. In this posture, we must reverse and remand the Ninth
Order for further agency proceedings.

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We review and uphold the FCCs computer model of the costs of providing
service in a given area. Several technical aspects of the model have been
challenged, but we find that these fall squarely within the FCCs discretion as an
expert agency. None of the alleged problems undermine the utility of the model
for estimating costs. We also uphold the FCCs practice of fixing minor errors in
the computer model without full notice-and-comment procedures. Accordingly,
we affirm the Tenth Order.

BACKGROUND
A. Introduction
The goal of universal service is that customers in all regions of the nation
have access to telecommunications services. Ninth Report & Order and
Eighteenth Order on Reconsideration 1, FCC 99-306, CC Docket No. 96-45
(Nov. 2, 1999) [hereinafter Ninth Order]. Universal service is an evolving level
of telecommunications services considering such factors as whether a service
has, through the operation of market choices by customers, been subscribed to by
a substantial majority of residential customers. 47 U.S.C. 254(c)(1). It
comprises, among other things, local telephone service and access to emergency,
directory-assistance, and long-distance services. See 47 C.F.R. 54.101(a).

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The cost of providing these services to customers varies widely. For

example, it is generally more expensive for a telephone company to provide
service in a rural area, where customers are dispersed, than it is to provide the
same service in an urban area, where customers are more concentrated. Ninth
Order 15. To address this disparity, states and the federal government have
established policies that support access to basic services in high-cost areas. Id.
13, 15.
When the local telephone markets were regulated monopolies, these
policies relied on a combination of explicit monetary payments to local phone
companies and implicit subsidies through rate designs. Id. 12. For example,
many states set uniform rates throughout a companys service area, which enabled
the company to charge above-cost rates in urban areas to support below-cost rates
in rural areas. Id. 15. Similarly, the federal interstate access charge system was
designed to subsidize local service through long-distance rates. Id. These
implicit subsidies are suited to a monopoly environment, but become difficult to
sustain as competition increases. Id. 16.

B. Telecommunications Act of 1996

The Telecommunications Act of 1996 sought to introduce competition to
local telephone markets. See Telecommunications Act of 1996 101, Pub. L. No.

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104-104, 110 Stat. 56, 61-80 (codified as amended at 47 U.S.C. 251-261). At

the same time, however, Congress codified its continued commitment to
preserving universal service. See 47 U.S.C. 254. Several provisions of 254
are relevant to this case.
The Act established a Federal-State Joint Board to recommend changes to
the federal regulations on universal service, which the FCC then implements in its
own proceedings. See 47 U.S.C. 254(a). The Joint Board and the FCC must
base their policies on seven enumerated principles. Id. 254(b). The two
principles directly relevant to this case are that (1) consumers in rural, insular,
and high cost areas should have access to services that are reasonably
comparable to those provided in urban areas at reasonably comparable rates,
id. 254(b)(3), and (2) [t]here should be specific, predictable and sufficient
Federal and State mechanisms to preserve and advance universal service, id.
254(b)(5).
Every company that provides interstate telecommunications services must
contribute to the federal universal-service mechanisms. Id. 254(d). Federal
funding should be explicit and sufficient to achieve the purposes of universal
service. Id. 254(e).

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C. FCC Orders
The FCC attempted to implement these provisions in its Report and Order,
FCC 97-157, CC Docket No. 96-45 (as amended June 4, 1997) [hereinafter First
Order], which on review was affirmed in part, reversed in part, and remanded in
part by the Fifth Circuit. Texas Office of Pub. Util. Counsel (TOPUC) v. FCC,
183 F.3d 393 (5th Cir. 1999), cert. dismissed sub nom. GTE Serv. Corp. v. FCC,
121 S. Ct. 423 (2000). Since then, the FCC has received further recommendations
from the Joint Board and has reconsidered and refined its policies in a series of
orders. This case involves challenges to the Ninth and Tenth Orders, released on
the same date. See Ninth Order; Tenth Report and Order, FCC 99-304, CC
Docket Nos. 96-45, 97-160 (Nov. 2, 1999) [hereinafter Tenth Order].
The orders at issue in this case concern universal service support for nonrural carriers only. Rural carriers, discussed more fully below, are carriers that
serve only rural areas or that are small in size. See infra section II.B.4. Nonrural carriers such as Qwest are larger and serve at least some urban areas. For
rural carriers, the FCC has recently adopted an interim funding mechanism for the
next five years and continues to develop a long-term plan. See Fourteenth Report
and Order, Twenty-Second Order on Reconsideration, and Further Notice of
Proposed Rulemaking, CC Docket Nos. 96-45, 00-256 1 (May 23, 2001)
[hereinafter Fourteenth Order].

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1. Pre-Ninth Order
The challenges by the petitioners concern whether the FCC has provided
sufficient funding to meet the statutes principle that rates and services for
universal services be reasonably comparable. Before the Ninth Order, the FCC
had established several aspects of its universal service policy. First, states would
bear the responsibility to marshall state and federal support resources to achieve
reasonable comparability of rates. Seventh Report & Order and Thirteenth Order
on Reconsideration 31, FCC 99-119, CC Docket Nos. 96-45, 96-262 (May 28,
1999) [hereinafter Seventh Order]. 1 Second, the federal mechanism would not
consider rates directly; rather, it would use costs as an indicator of a states
ability to maintain reasonable comparability of rates within the state and relative
to other states . . . because rates are generally based on costs. Id. 32. 2 Finally,
funding would be available in areas where the average cost of providing service
exceeded some national benchmark defined in terms of the average cost across the
nation. Id. 31.

The FCC informs us that there are no pending petitions for review of the
Seventh Order. To the extent we address matters from the Seventh Order in this
case, it is because they are inextricably linked to the Ninth Order. Cf. discussion
infra part III (rejecting a challenge to our ability to review the Tenth Order on
similar grounds).
1

Petitioners do not challenge the use of costs as a proxy for rates, and we
express no opinion on this.
2

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The FCC also had begun developing an algorithm to estimate the costs of
providing service, which is available in the form of a computer program on the
FCCs web site. See Fifth Report & Order 92, FCC 98-279, CC Docket Nos.
96-45, 97-160 (Oct. 28, 1998) [hereinafter Fifth Order]. In the Fifth Order, the
FCC adopted a model platform, which determined aspects of the model that are
essentially fixed, such as assumptions about soil and terrain. Id. 2. It did not
select inputs for the model, such as the cost of cables and switches. Id.

2. Ninth Order
In the Ninth Order, the FCC finalized its federal funding mechanism. To
determine the amount of money that a state may receive, the FCC employs a twopart method. First, using its cost model, it set a benchmark at 135% of the
national average cost per line. 3 Ninth Order 55. Second, it computes the
average cost per line within a given state. Id. 45. If the statewide average cost
exceeds the benchmark, then the FCC provides funding for costs in excess of the
benchmark. 4 Id. 42. Once the FCC determines a states level of support, it

This average, like the statewide average discussed below, is of lines

served by non-rural carriers only. Ninth Order 45 n.136, 55. Thus, it is
somewhat inaccurate to refer to these averages as the national average and
statewide average, as do Petitioners. For simplicitys sake, however, we adopt
the same shorthand.
3

Currently, this mechanism provides support only for 76% of costs

(continued...)
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generally distributes the money directly to carriers. The funding is targeted based
on the costs at the wire-center level, with each carrier receiving its proportionate
share, although a state may ask that the targeting rules be waived. Id. 73, 76.
The state must certify that a carrier is using the funding appropriately. Id. 95.
The FCC found that this methodology would implement its goal of
enabl[ing] states to ensure the reasonable comparability of non-rural carriers
intrastate rates. Id. 6 (emphasis added). It reiterated that the states have the
primary responsibility for ensuring reasonable comparability of rates within their
borders. The federal mechanism leaves this state role intact, but provides support
to carriers in states with average costs substantially in excess of the national
average. Id. 46.

3. Tenth Order
In the Tenth Order, the FCC selected input values for its cost model,
thereby completing the model. Tenth Order 2. The FCC found that the model

(...continued)
exceeding the benchmark, because interstate access rates already subsidize on
average 24% of these costs. Ninth Order 63. The FCC noted that because the
24% is an average, limiting support to 76% of costs may cause some areas to
receive more or less than 100% of costs above the benchmark. Id. 63 n.191.
Nonetheless, it concluded that the administrative burden of computing the
percentage in each case would outweigh the benefits of a more accurate
accounting. Id. Petitioners do not challenge this determination.
4

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provides reasonably accurate estimates of costs. Id. 23. The FCC anticipates
updating the model as technology and other conditions change. Id. 28. In
addition, the FCC has delegated to the Common Carrier Bureau the authority to
make changes to the model as necessary and appropriate to ensure that the
platform of the federal mechanism operates as described in the orders. Id. 20.

D. Petitions for Review

We have consolidated three petitions for review filed against the Ninth and
Tenth Orders. In No. 99-9546, Qwest challenges several aspects of the Ninth
Order. In particular, Qwest argues that (1) the FCC must itself provide full
funding for universal services instead of relying on the states to take action; (2)
the use of statewide averages and a benchmark set at 135% of the national
average do not satisfy the principle that rates in rural and urban areas be
reasonably comparable or that federal funding be sufficient to achieve the
purposes of the Act; and (3) the FCC failed to explain adequately its decisions.
In No. 00-9505, the States of Vermont and Montana argue that (1) the
combination of a national average and a 135% benchmark provides too little
funding and (2) the FCC failed to make adequate factual findings to justify its

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funding mechanism. 5 In No. 99-9547, Qwest attacks the model finalized in the
Tenth Order as violating the Administrative Procedure Act and the
Telecommunications Act. The Wyoming Public Service Commission filed a
Notice of Joinder in Qwests brief. Other parties, including Vermont, Maine, and
AT&T, have intervened to defend some or all of the FCCs decisions.

DISCUSSION
I. Jurisdiction and Standard of Review
We have jurisdiction to review final orders of the FCC under 28 U.S.C.
2342(1). Our task is to determine whether the FCCs orders are arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law. 5
U.S.C. 706(2)(A). To meet this standard, the agency must examine the
relevant data and articulate a satisfactory explanation for its action including a
rational connection between the facts found and the choice made. Motor Vehicle
Mfrs. Assn v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
If the agency has failed to provide a reasoned explanation for its
action, or if limitations in the administrative record make it
impossible to conclude the action was the product of reasoned
decisionmaking, the reviewing court may supplement the record or

The Vermont and Montana petition was originally filed in the United
States Court of Appeals for the District of Columbia. It was transferred to this
court under 28 U.S.C. 2112(a).
5

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remand the case to the agency for further proceedings. It may not
simply affirm.
Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1575 (10th Cir. 1994)
(citation omitted).
When it appears that Congress delegated lawmaking authority to an agency,
we review the agencys statutory interpretation promulgated in the exercise of that
authority under the two steps set out in Chevron U.S.A. v. NRDC, 467 U.S. 837
(1984). See United States v. Mead Corp., 121 S. Ct. 2164, 2171 (2001). If the
statute is clear, we apply its plain meaning. Chevron, 467 U.S. at 843. If it is
silent or ambiguous, however, we apply the agencys construction so long as it is
a reasonable interpretation of the statute. Id. at 843-44.

II. Challenges to the Ninth Order

A. Statutory Language
Both sets of Petitioners argue that the Ninth Order does not provide enough
money to support universal service. They assert this level of support will not
achieve the statutory principle of providing sufficient support such that rates in
rural and urban areas are reasonably comparable. The FCC denies that 254(b)
imposes such a duty. We begin by examining the relevant statutory provisions.

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1. Section 254(b)
Section 254(b) provides that the FCC shall base its universal-service
policies on a number of listed principles. Two of these principles are relevant to
this case:
(3) Access in rural and high cost areas
Consumers in all regions of the Nation, including low-income
consumers and those in rural, insular, and high cost areas, should
have access to telecommunications and information services,
including interexchange services and advanced telecommunications
and information services, that are reasonably comparable to those
services provided in urban areas and that are available at rates that
are reasonably comparable to rates charged for similar services in
urban areas.
....
(5) Specific and predicable support mechanisms
There should be specific, predictable and sufficient Federal
and State mechanisms to preserve and advance universal service.
The FCC may balance the principles against one another, but must work to
achieve each one unless there is a direct conflict between it and either another
listed principle or some other obligation or limitation on the FCCs authority. Cf.
Alenco Communications v. FCC, 201 F.3d 608, 621 (5th Cir. 2000) (noting that
the FCC may ignore a listed principle [t]o satisfy a countervailing statutory

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principle). 6 We reach this conclusion by using basic principles of statutory

interpretation.
The plain text of the statute mandates that the FCC shall base its
universal policies on the principles listed in 254(b). This language indicates a
mandatory duty on the FCC. See Forest Guardians v. Babbitt, 174 F.3d 1178,
1187 (10th Cir. 1999). However, each of the principles in 254(b) internally is
phrased in terms of should. The term should indicates a recommended course
of action, but does not itself imply the obligation associated with shall. See
United States v. Maria, 186 F.3d 65, 70 (2d Cir. 1999) (citing Websters Third
New International Dictionary 2085, 2104 (1st ed. 1993), and Blacks Law
Dictionary 1375, 1379 (6th ed. 1990)). Thus, the FCC must base its policies on
the principles, but any particular principle can be trumped in the appropriate case.
We hold the FCC may exercise its discretion to balance the principles against one
another when they conflict, but may not depart from them altogether to achieve
some other goal.

There is some language in an earlier Fifth Circuit case arguably

suggesting an even weaker reading of the 254(b) principles. See TOPUC, 183
F.3d at 421 (noting that the list of principles hardly constitutes a series of
specific statutory commands). TOPUC holds only that the principles may be
overcome by the limitations of the FCCs jurisdiction under 152(b), however.
This is consistent both with our analysis above and with the Alenco opinion. See
also id. at 434 (noting that the FCCs discretion is not absolute).
6

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The FCC and AT&T suggest that the goal of limiting federal expenditures
provides a competing principle. Cf. Alenco, 201 F.3d at 620 ([E]xcessive
funding may itself violate the sufficiency requirements of the Act. . . . [E]xcess
subsidization in some cases may detract from universal service by causing rates
unnecessarily to rise, thereby pricing some consumers out of the market.).
Arguably 254(b)(1) encompasses the principle that long-distance services, as
well as universal services, should be kept affordable, and thus excessive
subsidization of universal services by long distance may violate the principle
found in 254(b)(1). However, at most that means that the principles of
universal service have to be balanced against the burden on long distance of
providing contributions toward universal service. 7
The FCC also contends that it can have no duty to ensure the reasonable
comparability of rural and urban rates because it lacks ultimate jurisdiction to set
those rates. See 47 U.S.C. 152(b); Ninth Order 37 (Congress would not have
imposed on the Commission obligations regarding intrastate rates that the
Commission does not have the legal authority to effectuate.). This argument
misconstrues the nature of the FCCs duty under 254(b). The FCC may not
have jurisdiction with respect to intrastate rates, but it is nevertheless obligated to

Of course, the FCC and Joint Board could adopt this as an explicit
principle under 254(b)(7), but to date they have not done so.
7

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formulate its policies so as to achieve the goal of reasonable comparability by

inducing sufficient . . . State mechanisms to do so. We explain this further
below, in Section II.B.3.

2. Section 254(e)
The other relevant provision of the Act is 254(e), which provides in part
that any federal support for universal service should be explicit and sufficient to
achieve the purposes of this section. The Fifth Circuit held that the plain
language of 254(e) makes sufficiency of universal service support a direct
statutory command. TOPUC, 183 F.3d at 412; see also id. at 425. This holding
has been criticized (cogently, we think) for overstating the force of the word
should. See Comsat Corp. v. FCC, 250 F.3d 931, 940 (5th Cir. 2001) (Pogue,
J., concurring). We need not decide in this case whether to reject the Fifth
Circuits interpretation, however. Even assuming 254(e) sets forth a principle
that can be overcome by competing statutory concerns rather than an absolute
command, we ultimately conclude the FCC has not explained how its funding
mechanism is sufficient.

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B. Problems with the Ninth Order

For the reasons set forth below, we hold the FCC has not articulate[d] a
satisfactory explanation for its decisions, Motor Vehicle Mfrs. Assn, 463 U.S.
at 43, that would enable us to review the rationality of the Ninth Order. As we
indicated in Olenhouse, when the agency has failed to provide a reasoned
explanation for its action, it is appropriate to remand to the agency for further
proceedings. 42 F.3d at 1575. We do so here to allow the FCC to establish an
adequate legal and factual basis for the Ninth Order and, if necessary, to
reconsider the operative mechanism promulgated in that Order.
We find four significant problems with the Ninth Order: (1) The FCC did
not define adequately key terms including reasonably comparable and
sufficient; (2) it did not sufficiently justify setting the funding benchmark at
135% of the national average; (3) it did not provide any inducements for the state
mechanisms that it concedes are necessary to implement universal service; and (4)
it did not explain how this funding mechanism will interact with other universalservice programs.

1. Failure To Define Key Terms Adequately

One of the main points of contention in this case is whether the FCC has
endeavored to ensure that rates in rural and urban areas for universal services are

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reasonably comparable. The FCCs definition of reasonably comparable is

inadequate: a fair range of urban/rural rates both within a states borders, and
among states nationwide. Seventh Order 30; Ninth Order 54. 8 This
definition does not help answer the questions that arise about reasonable
comparability. For example, Vermont and Montana assert that some rural rates
will be 70-80% higher than urban rates under the FCCs funding mechanism. We
fail to see how the FCCs definition of reasonably comparable illuminates this
dispute. Does the FCC contend, for example, that a 70-80% discrepancy is within
a fair range of rates? We doubt that the statutory principle of reasonabl[e]
comparab[ility] can be stretched that far.
At least twice, the FCC has provided what purport to be further definitions
of reasonably comparable: (1) [S]upport levels must be sufficient to prevent
pressure from high costs and the development of competition from causing
unreasonable increases in rates above current, affordable levels. Seventh Order
30. (2) [S]ome reasonable level above the national average forward-looking
cost per line. Ninth Order 54. Even if these definitions were more precise
than the first one given (which we doubt), we do not believe they can be

At oral argument, counsel for the FCC also stated that the Commission had
not defined the terms rural area and urban area. This appears to be only
partly correct. Rural area is defined by regulation in 47 C.F.R. 54.5. We are
not aware of any comparable definition of urban area and express no opinion as
to whether urban means non-rural in this context.
8

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considered reasonable interpretations of the statutory language. The Act calls for
reasonable comparability between rural and urban rates; these definitions simply
substitute different standards.
The FCC also has not defined what it means for federal support for
universal service to be sufficient. It simply asserted without explanation that
the mechanism it chose would be sufficient. See Ninth Order 56. This
conclusory statement is inadequate to enable appellate review of the sufficiency
of the federal mechanism and, if accepted, would provide only a circular
argument in support of the FCCs position.
Assuming that the terms reasonably comparable and sufficient are
ambiguous, we would be obligated under Chevron to defer to the FCCs
definitions if they were reasonable constructions of the statute. When the FCC
has failed to define the terms at all or has provided a definition that replaces a
statutory command with some other standard, however, deference is inappropriate.
Without a limiting standard, rationally related to the goals of the Act, AT&T
Corp. v. Iowa Utils. Bd., 525 U.S. 366, 388 (1999), we are unable to conclude
that the FCCs actions are rational. On remand, we require the FCC to define
these terms more precisely in a way that can be reasonably related to the statutory
principles, and then to assess whether its funding mechanism will be sufficient for
the principle of making rural and urban rates reasonably comparable.

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2. Failure To Justify 135% Benchmark

In a related vein, the FCC has failed to explain how its 135% benchmark
will help achieve the goal of reasonable comparability or sufficiency. As noted
above, the FCC has substituted a comparison of national and statewide averages
for the statutory comparison of urban and rural rates. If, however, the FCCs
135% benchmark actually produced urban and rural rates that were reasonably
comparable, however those terms are defined, we likely would uphold the
mechanism. 9 Various parties submitted information to the FCC during the
proceedings below comparing rural and urban costs under the FCCs proposal.
There is no record of the FCCs evaluation of this data; it apparently adopted the
benchmark without explicit empirical findings in this regard. See Ninth Order
54. Indeed, the agency may very well have a difficult time making such
findings because, as explained in the next section, it has no assurances that the
states will do anything to support universal service.
The FCC gave four justifications for setting the benchmark at 135%: (1) It
falls within the range recommended by the Joint Board, 115-150%; (2) such a
level is consistent with the precedent of the existing support mechanism, which
uses a range of 115-160%; (3) that level is near the midpoint of the current

We therefore reject Qwests argument that the use of statewide and

national averages is necessarily inconsistent with 254.
9

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range; and (4) it is a reasonable compromise of commenters proposals. Ninth

Order 55. We find these justifications insufficient to support the benchmark.
The FCC is not a mediator whose job is to pick the midpoint of a range or to
come to a reasonable compromise among competing positions. As an expert
agency, its job is to make rational and informed decisions on the record before it
in order to achieve the principles set by Congress. Merely identifying some range
and then picking a compromise figure is not rational decision-making.
We recognize that the FCCs determination of a benchmark will necessarily
be somewhat arbitrary. That recognition might justify arbitrarily picking a point
within a narrow range, but does not justify doing so in the wide range present
here. We also acknowledge that the agency is entitled to deference in its linedrawing when it makes a reasoned decision. Here, however, the FCC has not
established that it made an informed and rational choice. The Ninth Order
contains conclusory statements that a 135% benchmark will provide sufficient
support to enable reasonably comparable rates, Ninth Order 56, but does not
reference any of the data on rural and urban averages that the states presented to
the agency and before us. On remand, the FCC should address the relevant data
and provide adequate record support and reasoning for whatever level of support
it ultimately selects upon remand.

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3. Lack of State Inducements

The FCC acknowledges that the Ninth Order will result in reasonably
comparable rates only if the states implement their own universal-service policies.
E.g., Ninth Order 56 (We believe that this level of [federal] support will
provide states with the ability to provide for a fair range of urban and rural rates
within their borders . . . .). Yet there is nothing in the Ninth Order to induce
such state mechanisms, and there is nothing in the Order requiring such
inducements in the future if the states fail to provide for reasonable comparability
between urban and rural rates as required by the statute. To the contrary, the
Ninth Order expressly adopts the Joint Boards recommendation that the FCC
abstain from requiring any state action as a condition for receiving federal highcost universal service support other than the certifications required by 254(e). 10
Ninth Order 67 (emphasis added). 11 As noted above, the Act requires the FCC
to base its policies on the principle that there should be sufficient state
mechanisms to promote universal service. Thus, the FCC must ensure that these
mechanisms exist.

This certification process is insufficient to meet our concerns. It requires

only that the state certify that the carrier is eligible to receive the federal funds
and that the funds are being used for universal service as intended. See Ninth
Order 93-110.
10

At oral argument, counsel for the FCC conceded that there were no
mechanisms in place to induce state action.
11

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We recognize that the FCC may not be able to implement universal service
by itself, since it lacks jurisdiction over intrastate service. See 47 U.S.C.
152(b). Indeed, the Fifth Circuit has held that the FCC may not consider
intrastate revenues in assessing a carriers contribution to the federal universalservice support mechanism. TOPUC, 183 F.3d at 447-48. It would be impossible
for the FCC alone to ensure reasonably comparable rates in urban and rural areas
unless it were willing to commit massive federal support toward ensuring that
rates in rural areas are no higher than those currently in place in urban areas.
The Telecommunications Act plainly contemplates a partnership between
the federal and state governments to support universal service. See, e.g.,
254(b)(5) (There should be specific, predictable and sufficient Federal and
State mechanisms to preserve and advance universal service.); 254(f) (Every
telecommunications carrier that provides intrastate telecommunications services
shall contribute, on an equitable and nondiscriminatory basis, in a manner
determined by the State to the preservation and advancement of universal service
in that State.); 254(k) (placing complementary duties on the FCC and the states
to ensure that services included in the definition of universal service bear no
more than a reasonable share of the joint and common costs of facilities used to
provide those services.); see also TOPUC, 183 F.3d at 424 ([T]here is
substantial support in the statute for a dual regulatory structure in the

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administration of the universal service program.). Thus, it is appropriate even

necessary for the FCC to rely on state action in this area. We therefore reject
Qwests argument that the FCC alone must support the full costs of universal
service. Although 254(e) requires federal support to be explicit and 254(k)
prevents carriers from using non-competitive services to provide implicit
subsidies for competitive services, we see nothing in 254 requiring the FCC
broadly to replace implicit support previously provided by the states with explicit
federal support. 12
Nevertheless, the FCC may not simply assume that the states will act on
their own to preserve and advance universal service. It remains obligated to
create some inducement a carrot or a stick, for example, or simply a binding
cooperative agreement with the states for the states to assist in implementing
the goals of universal service. For example, the FCC might condition a states
receipt of federal funds upon the development of an adequate state program, an
approach the FCC at oral argument conceded was possible. The FCCs
fundamental error is in concerning itself only with enabl[ing] reasonable
comparability among states. Ninth Order 38. But 254 requires a comparison
of rural and urban areas, not states. The FCC wishes to take credit for the states

Qwest also notes that some states will need more extensive programs than
others to ensure reasonably comparable urban and rural rates. We see nothing
problematic about this.
12

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actions in achieving reasonable comparability, but to do so it must also undertake

the responsibility to ensure that the states act. On remand, the FCC is required to
develop mechanisms to induce adequate state action.

4. Lack of Information About the Full Extent of Federal Support

The orders challenged in this case concern only a piece of federal support
for universal service. As noted above, they do not address funding for rural
carriers, which will be covered by later orders. See Ninth Order 11. The Act
defines rural carriers as
a local exchange carrier operating entity to the extent that such
entity
(A) provides common carrier service to any local
exchange carrier study area that does not include either
(i) any incorporated place of 10,000 inhabitants or
more, or any part thereof, based on the most recently
available population statistics of the Bureau of the
Census; or
(ii) any territory, incorporated or unincorporated,
included in an urbanized area, as defined by the Bureau
of Census as of August 10, 1993;
(B) provides telephone exchange service, including
exchange access, to fewer than 50,000 access lines;
(C) provides telephone exchange service to any local
exchange carrier study area with fewer than 100,000 access
lines; or
(D) has less than 15 percent of its access lines in
communities of more than 50,000 on February 8, 1996.
47 U.S.C. 153(37). In short, a rural carrier is one that serves rural, sparsely
populated areas or that is small in size. Because the FCC has reserved the

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possibility of applying a different funding mechanism for rural carriers than for
non-rural carriers, we cannot yet properly assess the total level of federal support
for universal service to ensure sufficiency. 13 According to FCC Commissioner
Furchtgott-Roth, dissenting from the Ninth Order, support for universal service
historically has been targeted mostly at rural carriers. Commissioner FurchtgottRoth argued that the Ninth Order substantially increased the funding for nonrural carriers, and he feared that no money would be left for rural carriers.
In addition, the present orders deal with reforming explicit federal support.
The FCC intends to address the implicit federal support built into interstate access
charges in a separate order. See Ninth Order 2 n.9. In a later order, the FCC
adopted a proposal to remove $650 million in implicit universal service support
from access charges and to replace it with an explicit mechanism of the same size.
See Sixth Report and Order, Report and Order, Eleventh Report and Order, CC
Docket Nos. 96-262, 94-1, 99-249, 96-45, 30 (May 31, 3000) [hereinafter
Eleventh Order].
We do not necessarily require the FCC to resolve finally all of these issues
at once. At this stage, however, we do not know the full extent of federal support

Indeed, a Rural Task Force has recommended to the Joint Board that the
Tenth Orders computer model not be extended to cover rural carriers. Rural
Task Force Recommendation to the Federal-State Joint Board on Universal
Service at 18, CC Docket No. 96-45 (Sept. 29, 2000).
13

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for universal service. This makes our task of reviewing the sufficiency of the
FCCs actions considerably more difficult. At the very least, we cannot say that
the FCC has shown that it is providing sufficient support for universal service.
On remand, the FCC will have an opportunity to explain further its complete plan
for supporting universal service.

5. Conclusion
The FCC has not provided an adequate basis for us to review the rationality
of the Ninth Order. It has not explained or supported its decisions adequately and
therefore has acted arbitrarily and not in accordance with 254. We therefore
must reverse the order and remand for further proceedings.
Because we remand for further consideration, we need not address at this
stage Petitioners contention that the actual level of federal funding is too low to
be sufficient to support universal service. Petitioners also assert that the Ninth
Order represents an unjustified change in FCC policy, cf. Motor Vehicle Mfrs.
Assn, 463 U.S. at 57 ([A]n agency changing its course must supply a reasoned
analysis . . . .), and that the FCC ignored various concerns raised during the
administrative process, cf. id. at 43 ([A]n agency rule would be arbitrary and
capricious if the agency . . . entirely failed to consider an important aspect of the
problem). These issues may become moot upon remand when the FCC provides

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further explanation for its decisions. If they do not become moot, Petitioners may
re-assert them in a later appeal to this court.

III. Challenges to the Tenth Order

Qwest challenges the cost model finalized in the Tenth Order, asserting that
it was written in an obsolete computer language (Turbo Pascal), produces
inaccurate computations, and has been changed without adequate notice-andcomment periods. As a preliminary matter, the FCC and AT&T assert that this
challenge is not properly before us since Qwest did not petition for review of the
Fifth Order, which selected the platform. We disagree.
While a petition from an agency order cannot be filed after the
statutory period for filing has run, it may be that some of the issues
that might have been raised in that appeal are so inextricably linked
to a subsequent agency opinion on another aspect of the same case,
that those issues may be raised in a timely appeal from the second
opinion.
Kansas Cities v. FERC, 723 F.2d 82, 85-86 (D.C. Cir. 1983) (Scalia, J.) (emphasis
omitted). Thus, in Kansas Cities, the court reviewed such an issue, noting in
particular that the earlier order had left it unclear what effect it would have on the
petitioners. Id. at 86. Likewise, before Qwest knew the input values, which were
adopted in the Tenth Order, it could not use the model to calculate costs
accurately. Therefore, Qwest could not have determined whether the model
benefitted or harmed its interests. Like the Kansas Cities court, we see no reason

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to require a party to petition for review of an agency action before it can know
whether it will be damaged by the action.
In addition, the Fifth Order clearly stated that its implementation plan
would not be finalized until it had taken other steps, including selecting the input
values. Fifth Order 2. We do not see the Fifth Order as a final agency action,
because it does not mark the consummation of the agencys decisionmaking
process, but rather is of an interlocutory nature. Bennett v. Spear, 520 U.S.
154, 178 (1997) (quotation marks omitted). We therefore consider the merits of
Qwests challenge and uphold the Tenth Order.
[B]ecause agency ratemaking is far from an exact science and involves
policy determinations in which the agency is acknowledged to have expertise,
courts are particularly deferential when reviewing ratemaking orders.
Southwestern Bell Tel. Co. v. FCC, 168 F.3d 1344, 1352 (D.C. Cir. 1999)
(quotation marks omitted). The computer model of costs at issue in the Tenth
Order is in the nature of rate-making and deserves strong deference to agency
expertise for the same reasons. Absent the most unusual circumstances, the FCC
is far better situated than is this court to decide basic technical specifications,
such as choosing an appropriate computer language for its model. While Qwest

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takes issue with the choice of Turbo Pascal, it has not convinced us that this
choice was so manifestly unreasonable as to be unlawful. 14
Similarly, while Qwest notes analytic problems with some of the
subroutines in the model, 15 it has not presented any evidence that the model
overall produces such inaccurate results that it cannot form the basis of rational
decision-making. The model is meant to estimate the costs of providing service.
See Tenth Order 17. It need not reflect physical reality in all aspects if it
produces reasonably accurate estimates, as the FCC has found it does. Id. 23.
Indeed, the FCC cites the outcome of a study showing that the models results are
highly correlated with dispersion of customers, and lists several factors that can
explain most of the differences between the models estimates and actual bookcost data. Id. 25, 27.
Finally, the FCC is not required to begin a new notice-and-comment period
every time it fixes a technical bug in its computer program. Cf. International
Union, UAW v. OSHA, 938 F.2d 1310, 1325 (D.C. Cir. 1991) (finding that
technical corrections did not trigger a notice-and-comment requirement of the
Occupational Safety and Health Act). The Fifth Order authorizes such changes as

We note that the FCC has translated the model into the Delphi computer
language and is currently seeking comments on whether to use the Delphi model
rather than the Turbo Pascal model. See Notice, 66 Fed. Reg. 34447 (June 28,
2001).
14

15

The parties dispute whether all of these problems have yet been fixed.
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are necessary and appropriate to ensure that the platform of the federal
mechanism operates as described in this Order. Fifth Order 13. As we
understand this, the changes made do not require the FCC actually to amend the
Fifth or Tenth Orders. Qwest does not appear to dispute that the changes made
were necessary to bring the model into compliance with these Orders. It therefore
has not shown any violation of administrative law.
The D.C. Circuits recent opinion in Utility Solid Waste Activities Group v.
EPA, 236 F.3d 749 (D.C. Cir. 2001), is not to the contrary. That case invalidated
the EPAs minor technical amendments to a published regulation because the
agency had not followed the usual notice-and-comment procedures or justified its
actions as falling within a statutory exception to the notice-and-comment
requirement. Id. at 752-53. Here, by contrast, the FCC has not actually amended
a published regulation; it has simply fixed its computer program to bring it into
compliance with the regulation. Cf. id. (distinguishing a case in which the agency
corrected an earlier mistake by issuing a binding memorandum instructing those
charged with enforcing the regulation to forbear applying it in certain cases).
Utility Solid Waste Activities Group is therefore inapposite to our decision.
In sum, we see no reason to disturb the Tenth Order.

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CONCLUSION
In Nos. 99-9546 and 00-9505, we GRANT the petitions for review,
REVERSE the Ninth Order, and REMAND to the FCC for further proceedings
consistent with this opinion. In No. 99-9547, we DENY the petition for review
and AFFIRM the Tenth Order.

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