In an unusual case, the U.S. Court of Appeals for the District of Columbia Circuit recently determined that a 2–2 vote by the Federal Communications Commission (FCC) did not represent agency action reviewable under the Hobbs Act or the Administrative Procedure Act (APA) (Sprint Nextel v. FCC, No. 06-1111, December 7, 2007).
Under Section 10 of the Communications Act, a telecom carrier may petition the FCC to “forbear” from enforcing other provisions of the Act or the FCC’s Rules if enforcement is no longer necessary to protect consumers. If the FCC does not act on the petition within one year (a deadline that the FCC can extend an additional 90 days), the petition is deemed granted.
Verizon petitioned for forbearance from having certain regulations applied to its broadband services. At the statutory deadline for acting on Verizon’s petition, there was a vacancy on the five-member FCC, with two commissioners voting to deny the petition and two voting to grant it in part. Without a majority vote to deny the petition, the FCC issued a public notice announcing that Verizon’s petition had been granted by operation of law.
On appeal, the court determined that Verizon’s petition was effectively granted by Congress, and that the FCC’s issuance of a public notice announcing the grant was not agency action reviewable under the Hobbs Act or the APA. The deadlocked vote only represented the views of individual commissioners, and without a statement of reasons by the FCC the court had nothing on which to base a decision under the APA. Although the “deemed granted” language of Section 10 means that the FCC could evade judicial review by simply allowing a forbearance petition to be granted by operation of law, the court noted that was a consequence of the system Congress created in Section 10, and absent evidence of abuse or bad faith by the FCC commissioners, the court will not intervene.