at&t Corporation v. Federal Communications Commission and United States of America

Notice: This opinion is subject to formal revision before publication in the
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 15, 2004 Decided June 1, 2004
No. 03-1035
AT&T C ORPORATION,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
VERIZON TELEPHONE COMPANIES, ET AL.,
INTERVENORS
–————
On Petition for Review of an Order of the
Federal Communications Commission
–————
Virginia A. Seitz argued the cause for petitioner. With
her on the briefs were David W. Carpenter, David L. Law-
son, Michael J. Hunseder, and Brian T. Fitzpatrick. Mark
C. Rosenblum entered an appearance.
Nandan M. Joshi, Counsel, Federal Communications Com-
mission, argued the cause for respondents. With him on the
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.

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brief were Robert H. Pate, III, Assistant Attorney General,
U.S. Department of Justice, Catherine G. O’Sullivan and
Nancy C. Garrison, Attorneys, John A. Rogovin, General
Counsel, Federal Communications Commission, Richard K.
Welch, Associate General Counsel, and John E. Ingle, Deputy
Associate General Counsel. Daniel M. Armstrong, James M.
Carr, and Rodger D. Citron, Attorneys, entered appearances.
Scott H. Angstreich argued the cause for intervenors.
With him on the brief were Mark L. Evans, Michael K.
Kellogg, Sean A. Lev, Michael E. Glover, Edward H. Shakin,
Joseph DiBella, James G. Harralson, Robert B. McKenna,
Jr., James D. Ellis, and Gary L. Phillips.
Before: EDWARDS, SENTELLE , and TATEL , Circuit Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: Under § 271 of the Telecommunications Act
of 1996 (the ‘‘Act’’), a Bell Operating Company (‘‘BOC’’) or its
affiliate may apply to the Federal Communications Commis-
sion (‘‘FCC’’ or ‘‘Commission’’) for authorization to provide
interLATA (long-distance) telephone service originating in
any in-region State. 47 U.S.C. § 271(d)(1). The FCC may
grant such authorization if: (1) the BOC demonstrates that it
provides competitors access and interconnection to its local
network pursuant to the ‘‘competitive checklist’’ under 47
U.S.C. § 271(c)(2)(B), (2) the Commission finds that the re-
quested authorization is consistent with the public interest,
and (3) the requested authorization ‘‘will be carried out in
accordance with the requirements of section 272.’’ 47 U.S.C.
§ 271(d)(3). Section 272 adopts regulatory ‘‘safeguards,’’ in-
cluding structural and transactional requirements, nondiscri-
mination provisions, and enforcement mechanisms to deter a
BOC from leveraging its local market power into long-
distance markets. 47 U.S.C. § 272. The Act makes it clear,
however, that the § 272 safeguards ‘‘shall cease to apply TTT
3 years after the date [when a BOC] is authorized to provide
interLATA telecommunications services under section 271(d)
TTT , unless the Commission extends such 3–year period by
rule or order.’’ 47 U.S.C. § 272(f)(1). On December 22,

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1999, Verizon in New York was the first BOC to obtain FCC
approval to provide long-distance service under § 271.
On December 23, 2002, Verizon reached the automatic
sunset date under § 272(f)(1) with respect to its long-distance
operations in New York. The Commission issued a public
notice on this date stating that ‘‘[t]he provisions of section 272
TTT sunset for Verizon’s operations in New York by operation
of law.’’ Public Notice, Section 272 Sunsets for Verizon in
New York State by Operation of Law on December 23, 2002
Pursuant to Section 272(f)(1), 17 F.C.C.R. 26,864 (2002)
(‘‘Public Notice’’). On this same date, the Commission issued
a Memorandum Opinion and Order, holding that the § 272
safeguards sunset on a state-by-state (not on a BOC-by-BOC)
basis. In the Matter of Section 272 (f)(1) Sunset of the BOC
Separate Affiliate and Related Requirements, 17 F.C.C.R.
26,869, 26,871 (2002) (‘‘Memorandum Opinion and Order’’).
The Commission also noted that, pursuant to prior Notice of
Proposed Rulemaking, In the Matter of Section 272(f)(1)
Sunset of the BOC Separate Affiliate and Related Require-
ments, 17 F.C.C.R. 9916 (2002) (‘‘NPRM’’), the agency still
had under consideration ‘‘possible alternative safeguards for
BOC provision of in-region, interLATA services after sunset
of the 272 structural and related requirements.’’ Memoran-
dum Opinion and Order, 17 F.C.C.R. at 26,869. ‘‘Moreover,’’
the FCC stated, ‘‘we plan to issue a [further] Notice of
Proposed Rulemaking in the coming months to seek comment
on whether there is a continued need for dominant carrier
regulation of BOC in-region, interLATA, domestic, interex-
change telecommunications services provided outside of a
section 272 affiliate. We will take further action to address
these issues in the future as appropriate.’’ Id. at 26,869–70.
In this action, petitioner AT&T Corporation contends that
the FCC acted arbitrarily and violated its duty of reasoned
decisionmaking when it issued a public notice stating that the
§ 272 safeguards sunset for Verizon’s operations in New York
‘‘by operation of law.’’ AT&T argues that the record here
demonstrates that Verizon retains significant market power,
justifying the need for continued application of the § 272
safeguards in New York. Thus, according to AT&T, the FCC

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was obligated to provide a reasoned explanation for its failure
to extend the § 272 safeguards. We reject these claims.
As the Commission indicated in its public notice, the § 272
safeguards sunset ‘‘by operation of law,’’ not by Commission
action. The FCC’s public notice did not purport to be an
order or rule addressing the continued need for § 272 safe-
guards, and the Act does not require any decision from the
Commission in order for the sunset provision under
§ 272(f)(1) to take effect. Therefore, the Commission was not
obligated to engage in ‘‘reasoned decisionmaking’’ when it
issued the public notice. Finally, AT&T’s claims regarding
the need for alternative safeguards, covering BOC provision
of interLATA services after sunset of the § 272 structural
and related requirements, remain under consideration by the
FCC. Therefore, those claims are not ripe for review. Ac-
cordingly, we dismiss AT&T’s petition for review.
I. BACKGROUND
The regional Bell Operating Companies are incumbent local
exchange carriers (‘‘LECs’’). They control the local tele-
phone networks in several regions throughout the country.
The BOCs came into existence pursuant to the consent decree
resolving the United States’ antitrust suit against AT&T. See
United States v. Am. Tel. & Tel. Co., 552 F. Supp. 131, 165
(D.D.C. 1982), aff’d sub nom. Maryland v. United States, 460
U.S. 1001 (1983). The consent decree found that AT&T had
engaged in anti-competitive behavior by using its control of
local networks to impede long-distance competitors’ access to
the local networks. Id. at 162. Long-distance carriers need
such access in order to connect calls from different regions.
The consent decree not only required AT&T to divest from
the BOCs, but also barred BOCs from providing long-distance
telephone services. See id. at 165. See also United States v.
Western Elec. Co., 569 F. Supp. 990, 993–94 (D.D.C. 1983)
(stating that a ‘‘LATA’’ marks boundaries beyond which a
BOC may not carry telephone calls).

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The Telecommunications Act of 1996 changed this land-
scape by permitting a BOC to apply to the Commission for
authorization to provide interLATA services originating in
any in-region state. 47 U.S.C. § 271(d)(1). As noted above,
the FCC may grant such authorization if: (1) the BOC
demonstrates that it provides competitors access and inter-
connection to its local network pursuant to the ‘‘competitive
checklist’’ under 47 U.S.C. § 271(c)(2)(B), (2) the Commission
finds that the requested authorization is consistent with the
public interest, and (3) the requested authorization ‘‘will be
carried out in accordance with the requirements of section
272.’’ 47 U.S.C. § 271(d)(3). Section 272 adopts regulatory
‘‘safeguards’’ to deter a BOC from leveraging its local market
power into long-distance markets. See 47 U.S.C. § 272. Any
BOC authorized to offer interLATA services must do so only
through a separate affiliate that is subject to certain structur-
al, transactional, and audit requirements. See 47 U.S.C.
§ 272(a)-(e).
More specifically, the separate affiliate is required to ‘‘oper-
ate independently’’ from the BOC, maintain separate books,
records, and accounts, have separate officers and directors,
have separate credit arrangements, and conduct all transac-
tions with the BOC on an arm’s length basis with any such
transactions reduced to writing and available for public in-
spection. 47 U.S.C. § 272(b). The BOC is prohibited from
discriminating in favor of its separate affiliate in the procure-
ment of goods, services, facilities, and information, or in the
establishment of standards. 47 U.S.C. § 272(c)(1). The BOC
must account for all transactions with an affiliate ‘‘in accor-
dance with accounting principles designated or approved by
the Commission.’’ 47 U.S.C. § 272(c)(2). In addition, the
separate affiliate is required to obtain an independent audit
every two years to determine compliance with the require-
ments, the results of which are to be submitted to the
Commission. 47 U.S.C. § 272(d). Section 272(e) prohibits
the BOC from discriminating in favor of an affiliate in the
fulfillment of requests for exchange service or access, the
provision of facilities, services, or information concerning

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exchange access, or charges for exchange service. 47 U.S.C.
§ 272(e).
The Act provides for the sunset of most of these § 272
safeguards, however. Section 272(f)(1) reads:
The provisions of this section (other than sub-
section (e) of this section) shall cease to apply
with respect to the manufacturing activities or
the interLATA telecommunications services of
any Bell operating company 3 years after the
date such Bell operating company or any Bell
operating company affiliate is authorized to pro-
vide interLATA telecommunications services
under 271(d) of this title, unless the Commission
extends such 3–year period by rule or order.
47 U.S.C. § 272(f)(1). Only the prohibition of discrimination
under § 272(e) is not subject to sunset pursuant to
§ 272(f)(1).
On December 22, 1999, the Commission granted Verizon’s
application under § 271 to provide interLATA services in
New York. See In the Matter of Application by Bell Atlantic
New York for Authorization Under Section 271 of the Com-
munications Act To Provide In–Region, InterLATA Service
in the State of New York, 15 F.C.C.R. 3953 (1999), aff’d sub
nom. AT&T Corp. v. FCC, 220 F.3d 607 (D.C. Cir. 2000). In
June 2000, the Commission approved SBC’s application for
Texas. See In the Matter of Application by SBC Communica-
tions, Inc., Southwestern Bell Telephone Co., and Southwest-
ern Bell Communications Services, Inc., d/b/a/ Southwestern
Bell Long Distance, 15 F.C.C.R. 18,354 (2000). Thereafter,
the Commission granted BOCs’ § 271 applications in Kansas,
Oklahoma, Massachusetts, Connecticut, Pennsylvania, Arkan-
sas, Missouri, Rhode Island, Vermont, Georgia, and Louisi-
ana.
As the § 272(f)(1) sunset date approached for Verizon’s
New York long-distance operations, the Commission initiated
a rulemaking regarding the separate affiliate and related
requirements. See NPRM, 17 F.C.C.R. at 9916. The Com-
mission solicited views from interested parties concerning:

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(1) whether the structural safeguards estab-
lished in section 272 should be extended by the
Commission, despite the three-year sunset pro-
vision in the statute; and
(2) whether any alternative safeguards should
be put in place in states where the statutory
requirements have sunset.
Id. at 9917. The Commission also invited comment on
‘‘whether, and if so, under what conditions, the structural and
nondiscrimination safeguards established in section 272
should be extended by the Commission either generally or
with respect to specific states.’’ Id. AT&T submitted com-
ments urging the Commission to extend the § 272 safeguards
for at least another three years, alleging that the BOCs
continued to retain significant market power in all markets.
In the Matter of Section 272(f)(1) Sunset of the BOC Separate
Affiliate and Related Requirements, WC Docket No. 02–112,
Comments of AT&T Corp. at 10–11, Joint Appendix (‘‘J.A.’’)
74–75. Several BOCs and state utility commissions also
submitted comments in response to the NPRM.
On December 23, 2002, the Commission issued a public
notice, which reads:
The provisions of section 272 (other than section
272(e)) of the Communications Act of 1934, as
amended (the Act), applicable to BOC provision of
in-region, interLATA telecommunications services
sunset for Verizon’s operations in New York by
operation of law as provided in section 272(f)(1),
effective December 23, 2002.
Section 272 of the Act requires BOCs to provide in-
region, interLATA telecommunications services
through separate corporate affiliates, subject to cer-
tain safeguards. 47 U.S.C. § 272(a)(2). Section
272(f)(1) provides that the provisions in section 272
(other than section 272(e)) expire three years after a
BOC or BOC affiliate is authorized under section
271 to provide in-region, interLATA services, unless
the Commission extends such 3–year period by rule
or order. 47 U.S.C. § 272(f)(1).

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The Commission granted its first section 271 author-
ization for BOC provision of in-region interLATA
services to Verizon for New York State in an order
released on December 22, 1999. Pursuant to section
272(f)(1), section 272 (other than section 272(e)) sun-
sets by operation of law for Verizon in New York
State, effective December 23, 2002.
Public Notice, 17 F.C.C.R. at 26,864. Two Commissioners
dissented, arguing that ‘‘Congress clearly gave the Commis-
sion the charge to determine whether these structural, ac-
counting, and auditing safeguards remain necessary to pre-
vent anti-competitive discrimination in the market. Yet the
Commission has neglected to consider whether there is a
need for these or alternative safeguards.’’ Id. at 26,866
(Commissioners Jonathan S. Adelstein and Michael J. Copps,
dissenting). Another Commissioner stated concern ‘‘that the
Commission’s decision to summarily allow the section 272
requirements to sunset was made through a public notice
rather than a Commission order responding to questions
raised on the record.’’ Id. at 26,868 (Commissioner Kevin J.
Martin, concurring).
On the same day, the Commission released a Memorandum
Opinion and Order, holding that the § 272 safeguards sunset
on a state-by-state basis. Memorandum Opinion and Order,
17 F.C.C.R. at 26,871. That order also stated:
We continue to review the broader issues in this
proceeding as well as related issues concerning
incumbent independent LEC provision of in-
region, interexchange service before the Com-
mission in a separate proceeding. Moreover,
we plan to issue a Notice of Proposed Rulemak-
ing in the coming months to seek comment on
whether there is a continued need for dominant
carrier regulation of BOC in-region, interLATA,
domestic, interexchange telecommunications
services provided outside of a section 272 sepa-
rate affiliate. We will take further action to

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address these issues in the future as appropri-
ate.
Id. at 26,869. Two Commissioners dissented from the Memo-
randum Opinion and Order. Id. at 26,881 (Commissioners
Adelstein and Copps, dissenting in part). Commissioner
Martin issued a concurring statement expressing his concern
over the Commission’s failure to respond to the questions
raised in the record. Id. at 26,883 (Commissioner Martin,
concurring).
AT&T now petitions this court for review, claiming that the
Commission was obligated to provide a reasoned explanation
of its decision to allow the § 272 safeguards to sunset in New
York and to respond to the comments and evidence it solic-
ited in its Notice of Proposed Rulemaking.
II. ANALYSIS
There are three principal issues in this case: (1) whether
the FCC was obligated under § 272(f)(1) to issue a reviewable
decision as to whether to allow the § 272 safeguards to sunset
in New York; (2) whether the agency’s December 23, 2002,
Public Notice reflected a final agency action not to extend the
protections of § 272 in New York; and (3) whether the
agency’s December 23, 2002, Memorandum Opinion and
Order, holding that § 272(f)(1) provides for state-by-state
sunset, and deferring judgment on ‘‘alternative safeguards for
BOC provision of in-region, interLATA services after sunset
of the § 272 structural and related requirements,’’ see 17
F.C.C.R. at 26,689, is ripe for review on the latter point.
A. The Commission Was Not Obligated to Issue a Re-
viewable Decision
Section 272(f)(1) clearly states that, after three years, the
safeguards of § 272 ‘‘shall cease to apply’’ ‘‘unless the Com-
mission extends’’ the protections by rule or order. 47 U.S.C.
§ 272(f)(1). AT&T argues that, under this provision, the
FCC was obligated to provide a reasoned explanation of ‘‘its
decision’’ to allow the § 272 safeguards to sunset. See Peti-
tioner’s Br. at 25. Implicit in this argument is the assump-
tion that the FCC was obligated to make a decision. In
other words, AT&T suggests that because the Commission
has the authority to extend the requirements of § 272, it

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necessarily must reach a decision not to extend the protec-
tions of § 272 if the sunset provision is allowed to take effect.
The FCC argues, in turn, that it was not required to say
anything in the face of the sunset provision in § 272(f)(1).
Thus, under the Commission’s view, if the agency said noth-
ing, the protections afforded by the § 272 requirements
would cease by operation of law. See Respondent’s Br. at 47.
The FCC has the better of this argument. The FCC has
the statutory authority to extend the requirements of § 272,
but it does not follow that the agency must explain inaction
which effectively results in the non-extension of the § 272
safeguards. The opening words of § 272(f)(1) are: ‘‘The
provisions of this section (other than subsection (e) of this
section) shall cease to apply TTT ’’ These words clearly
indicate that Congress intended for the statute’s protections
to expire by operation of law on a date certain. There is
nothing in the statutory provision that requires the Commis-
sion to consider whether to allow the sunset provision to go
into effect.
AT&T argues that ‘‘there is a substantial question whether
§ 272(f)(1) is an unconstitutional delegation of legislative pow-
er,’’ because any FCC decision to extend the protections of
§ 272 would admit of no ‘‘intelligible principle to which the
person or body authorized to [act] is directed to conform.’’
Petitioner’s Reply Br. at 8 (quoting Whitman v. Am. Truck-
ing Ass’ns, Inc., 531 U.S. 457, 472 (2001)). This argument,
however, rests on a faulty premise. AT&T incorrectly as-
sumes that the decision whether to sunset the § 272 safe-
guards lies with the FCC. This is simply wrong. Congress
made the decision to extinguish the protections of § 272 by
operation of law. Congress did not ‘‘delegate’’ this decision
to the Commission.
Any decision by the FCC to extend or not to extend the
protections of § 272 is a matter entirely separate from Con-
gress’s decision to sunset the statutory provision. The main
point here is that the § 272 safeguards expired by ‘‘operation
of law,’’ not by decision of the FCC.

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We also note that the legislative history of the Act does not
support AT&T’s arguments in this case. The Senate bill
included provisions to impose separate subsidiary require-
ments and other safeguards on the activities of Bell compa-
nies in the provision of interLATA services. The bill included
a provision allowing the FCC to grant exceptions to the
separate subsidiary requirements upon a showing that grant-
ing such an exception would be ‘‘necessary for the public
interest, convenience, and necessity.’’ See S. REP. NO. 104–23,
at 24 (1995). The Senate Committee noted that the exception
should only be used whenever a requirement ‘‘is not neces-
sary to protect consumers or to prevent anti-competitive
behavior.’’ Id. The Senate bill did not contain a sunset
provision; it merely delegated discretion to the FCC to grant
exceptions to the separate affiliate requirements by applying
the ‘‘public interest’’ standard. The House bill included an
18–month sunset provision for the separate subsidiary re-
quirements, and did not include a provision permitting the
FCC to extend the requirements at the end of 18 months.
See H.R. R EP. NO. 104–223, at 7 (1995). The bill that was
ultimately adopted reflected a compromise between the Sen-
ate and House versions:
The conference agreement adopts the Senate
provisions with several modificationsTTTT The
conferees deleted the Senate provisions provid-
ing for Commission exceptions to the require-
ments of this section. Instead, the conferees
adopted a three year ‘‘sunset’’ of the separate
affiliate requirement for interLATA services
and manufacturing activitiesTTTT In any case,
the Commission is given authority to extend the
separate affiliate requirement by rule or order.
H.R. C ONF. REP. NO. 104–458, at 152 (1996). The Conference
Report makes it clear that ‘‘the conferees adopted a three
year ‘sunset’ of the separate affiliate requirement.’’ Id. Con-
gress did not leave the decision to the Commission.
Even more telling are the provisions of the Act in which
Congress is clear when it means to require the agency to
weigh qualitative standards before a sunset provision may

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take effect. Two good examples are found in 47 U.S.C.
§ 273(d)(6) and 47 U.S.C. § 549(e), in which Congress ex-
pressly provided that the requirements of the statute would
sunset ‘‘when the Commission determines’’ that certain crite-
ria have been satisfied. There is no such qualifying language
in § 272(f)(1). The absence of such language supports the
Commission’s position that the § 272 safeguards sunset by
operation of law.
B. The Public Notice Is Not a Final, Reviewable Agency
Decision
AT&T attempts to overcome the problem that the FCC
was not obligated to issue a reviewable decision as to whether
to allow the § 272 safeguards to sunset in New York by
arguing that the agency’s December 23, 2003, Public Notice
was just such a decision. AT&T argues further that this
‘‘decision’’ is presumptively reviewable and that it is arbitrary
for want of reasoned explanation. The problem with AT&T’s
position is that it incorrectly assumes that the Public Notice
was something more than a ‘‘public notice.’’
The disputed notice merely says that
[t]he provisions of section 272 TTT sunset for
Verizon’s operations in New York by operation
of law. TTT Section 272(f)(1) provides that the
provisions in section 272 TTT expire three years
after a BOC or BOC affiliate is authorized
under section 271 to provide in-region, inter-
LATA services, unless the Commission extends
such 3–year period by rule or order.
Public Notice, 17 F.C.C.R. at 26,864 (emphasis added). That
is all. The dissenting Commissioners argued that the Public
Notice was a ‘‘decision’’ on the question whether to extend the
protections of § 272. Id. at 26,866 (Commissioners Adelstein
and Copps, dissenting). But that is not what the Public
Notice says. Indeed, the record indicates that the Commis-
sion has reserved judgment on whether to extend the protec-
tions of § 272 or institute new structural protections. See
NPRM, 17 F.C.C.R. at 9917; In the Matter of Section
272(f)(1) Sunset of the BOC Separate Affiliate and Related

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Requirements, 2000 Biennial Regulatory Review Separate
Affiliate Requirements of Section 64.1903 of the Commis-
sion’s Rules, Further Notice of Proposed Rulemaking, 18
F.C.C.R. 10,914, 10,914 (2003).
AT&T contends that the Public Notice in this case cannot
be squared with the FCC’s action in In the Matter of Request
for Extension of the Sunset Date of the Structural, Nondis-
crimination, and Other Behavioral Safeguards Governing
Bell Operating Company Provision of In–Region, Inter-
LATA Information Services,15 F.C.C.R. 3267 (2000). That
action addressed § 272(f)(2), which sunsets § 272 safeguards
applying to a BOC’s provision of interLATA information
services four years after the effective date of the Act. See 47
U.S.C. § 272(f)(2). AT&T argues that, ‘‘[w]hen [the sunset]
date approached, and in response to a petition to extend the
safeguards [of § 272(f)(2)], the FCC issued an order that
rejected the petition and provided at least some rationale for
its decision.’’ Petitioner’s Br. at 19 n.39. AT&T claims that
the FCC was required to do no less here.
The fact that the Commission issued an order in the earlier
instance does not necessarily dictate that it was required to
so here. Even if that decision were taken to be precedent,
AT&T could not successfully rely on it as it did not file a
petition to extend the safeguards in this case. AT&T did file
comments on the Commission’s NPRM, but these comments
did not specifically petition to extend the protections of § 272
in New York before the sunset date. Rather, AT&T sought a
nationwide extension of the § 272 protections to all BOCs for
an additional three years. See Comments of AT&T at 7, J.A.
71. The FCC’s rulemaking proceeding, to which AT&T
submitted these comments, is still ongoing.
So we need not decide here whether the FCC is obligated
to respond to a petition to extend the § 272 safeguards if one
is filed, and, if so, what the standard of review would be.
AT&T did file a petition to extend the § 272 safeguards for
BOC provision of in-region interLATA services in Texas, see
Petition of AT&T Corp., In the Matter of Extension of
Section 272 Obligations of Southwestern Bell Telephone Co.

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in the State of Texas, WC Docket No. 02–112, J.A. 433–58,
and the FCC issued a public notice there stating that ‘‘the
provisions of section 272 TTT applicable to BOC provision of
in-region, interLATA telecommunications services sunset for
SBC’s operations in Texas by operation of law as provided in
section 272(f)(1).’’ Public Notice, Section 272 Sunsets for SBC
in the State of Texas by Operation of Law on June 30, 2003
Pursuant to Section 272(f)(1), 18 F.C.C.R. 13,566 (2003).
AT&T has challenged this notice in a separate petition for
review, so the issue will be addressed in due course.
C. Finality and Ripeness
AT&T’s principal concern in this case is that safeguards of
the sort previously in place under § 272 are still necessary to
detect and deter BOCs’ leveraging of market power in con-
nection with their provision of in-region, interLATA services.
There is no doubt that this issue remains a matter of some
concern to the Commission, because the FCC said as much in
its December 23, 2002, Memorandum Opinion and Order.
However, the Commission deferred judgment on ‘‘alternative
safeguards for BOC provision of in-region, interLATA ser-
vices after sunset of the § 272 structural and related require-
ments’’ pending further review of the matter in ongoing
rulemaking proceedings. See 17 F.C.C.R. at 26,869.
An administrative action must be ‘‘final’’ in order to be
reviewable. See FTC v. Standard Oil Co., 449 U.S. 232, 246
(1980) (declining to review issuance of a complaint by the
FTC against a company because it was not final agency
action); Bethlehem Steel Corp. v. EPA, 669 F.2d 903, 910 (3rd
Cir. 1982) (holding that an EPA notice of noncompliance
triggering further proceedings was not final and therefore not
reviewable). Because the FCC has reserved judgment on
whether safeguards of the sort previously in place under
§ 272 are still necessary, there is no apparent final agency
action on this matter. The issue is not quite so simple,
however, because AT&T maintains that the Commission’s
failure to act before the § 272 safeguards sunset was agency
action sufficient to satisfy the finality requirement. We need

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not quibble over this, however, because it is clear that, no
matter how the case is characterized, the issue regarding
‘‘alternative safeguards’’ is not ripe for review.
The ripeness doctrine aims to balance a petitioner’s interest
in prompt consideration of allegedly unlawful agency action
against the agency’s interest in crystallizing its policy before
that policy is subject to review and the court’s interests in
avoiding unnecessary adjudication and in deciding issues in a
concrete setting. City of Houston v. Dep’t of Housing &
Urban Dev., 24 F.3d 1421, 1430 (D.C. Cir. 1994) (citing Eagle-
Picher Indus. v. EPA, 759 F.2d 905, 915 (D.C. Cir.1985)).
Here, the issue of whether the FCC should adopt § 272–type
safeguards is unfit for review, because the matter is still
under consideration in ongoing rulemaking proceedings.
This case does not pose a situation in which statutory protec-
tions have expired and the agency has stated that it will not
give consideration to extending the protections or adopting
alternative protections. Quite the contrary, in the Memoran-
dum Opinion and Order, the Commission promised to take
further action to address the issues raised by AT&T.
It is also noteworthy here that, after the Public Notice was
issued, the Commission issued a Further Notice of Proposed
Rulemaking, inviting comment on the ‘‘appropriate classifica-
tion of Bell Operating Companies’ (BOCs) and incumbent
independent local exchange carriers’ (independent LECs)
provision of in-region interstate and international interex-
change telecommunications services,’’ including ‘‘how changes
to the competitive landscape within the interexchange market
should affect this classification and on what approach is
appropriate for BOCs and independent LECs, if and when
these carriers may provide in-region, interexchange services
outside of a separate affiliate.’’ 18 F.C.C.R. at 10,914. The
Commission invited comments on, inter alia, ‘‘if and when’’ a
BOC can provide interLATA services outside of a separate
affiliate. To ask if a BOC can provide interLATA services
outside of a separate affiliate is to consider the possibility that
separate affiliate requirements continue to be necessary.
Therefore, it remains an open question as to whether the

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Commission will adopt alternative safeguards covering BOCs
authorized to provide in-region, interLATA service.
On this record, it is clear that both the Commission and the
court will benefit from postponing review of whether safe-
guards are necessary for BOCs’ provision of interLATA
services until the policy in question has crystallized into a
more definite form.
III. CONCLUSION
For the foregoing reasons, we dismiss the petition for
review.

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