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Airtouch Paging v. Federal Communications Commission and United States of America, Us West, Inc., Bell Atlantic Telephone Companies, Bell Atlantic-Delaware, Inc., Bell Atlantic-Maryland, Bell Atlantic-New Jersey, Inc., Bell Atlantic-Pennsylvania, Bell Atlantic-Virginia, Inc., Bell Atlantic-Washington, D.C., Inc., Bell Atlantic-West Virginia, Inc., New York Telephone Company & New England Telephone & Telegraph Company & Sbc Communications, Inc., Intervenors

Citation: 234 F.3d 815Docket: 2000

Court: Court of Appeals for the Second Circuit; December 11, 2000; Federal Appellate Court

Narrative Opinion Summary

In this case, AirTouch Paging petitioned for judicial review of two Federal Communications Commission (FCC) orders related to the definition of 'telephone exchange service' under the Telecommunications Act of 1996. The primary legal issue involved whether paging services fall within this definition, which impacts their regulatory treatment. The FCC had previously ruled that paging carriers do not qualify as providers of telephone exchange service, a decision AirTouch sought to contest. AirTouch argued that this exclusion affected its access to nondiscriminatory telephone numbers, dialing parity, and network change notices. However, the court found that AirTouch lacked standing to challenge the FCC's orders as it did not demonstrate a concrete, actual, or imminent injury. The FCC's Third Order on Reconsideration confirmed that paging carriers are entitled to nondiscriminatory access to telephone numbers and deferred reconsideration of other issues to future orders. Consequently, the court dismissed AirTouch's petition for review, affirming that mere disagreement with agency reasoning does not establish Article III standing. The outcome left the FCC's classification intact, with AirTouch's separate petition regarding related issues still pending.

Legal Issues Addressed

Definition of Telephone Exchange Service

Application: The FCC clarified that paging services do not qualify as 'telephone exchange service' under the Telecommunications Act of 1996, impacting their regulatory classification.

Reasoning: The Commission clarified that paging carriers do not qualify as providers of telephone exchange service, which is why they are not covered under §251(b)(3).

Judicial Review of Agency Decisions

Application: The court dismissed AirTouch's petition for review, indicating that disagreement with an agency's reasoning does not suffice for judicial review under Article III.

Reasoning: Disagreement with an agency's rationale does not suffice for Article III standing.

Protection Against Discriminatory Fees

Application: Despite not being classified as telephone exchange service providers, paging carriers are still protected against discriminatory numbering fees under common carrier provisions.

Reasoning: The Third Order reaffirms AirTouch's protection against discriminatory numbering fees.

Standing to Challenge Agency Orders

Application: AirTouch Paging lacked standing to challenge FCC orders as it failed to demonstrate an 'injury in fact' that was concrete, actual, or imminent.

Reasoning: AirTouch lacks standing because the injuries claimed are not sufficiently concrete, actual, or imminent.