InContact, Inc. v. FCC & USA, No. 12-1133 (D.C. Cir.)
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
September Term, 2012FILED ON: JANUARY 16, 2013
FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA,
On Petition for Review of an Order of
the Federal Communications Commission
Before: GARLAND and GRIFFITH, Circuit Judges, and RANDOLPH, Senior
J U D G M E N TThis petition for review was considered on the record and on the briefs and
arguments of the parties. The court has accorded the issues full consideration and has
determined that they do not warrant a published opinion. See D.C. CIR. R. 36(d). It
ADJUDGEDthat the petition for review be denied.
The Federal Communications Commission issued an order dismissing in part
and denying in part inContact’s application for review of a Wireline Competition
Bureau order. Universal Service Contribution Methodology, 27 F.C.C.R. 632 (2012)
(“FCC Order”). The Bureau’s order denied inContact’s request for review of an
invoice it received from the Universal Service Administrative Company or “USAC.”
Universal Service Contribution Methodology, 25 F.C.C.R. 4739 (2010). The Bureau
ruled that the USAC invoice was an “Administrator decision” within the meaning of
47 C.F.R. § 54.720, that § 54.720 requires such requests to be filed within 60 days of
USCA Case #12-1133 Document #1415394 Filed: 01/16/2013 Page 2 of 2
the decision, and that inContact filed its request after the 60-day period had expired.
Id. at 4739. The Commission agreed, stating that “[f]or purposes of 47 C.F.R.
§ 54.720, USAC’s invoice is a decision by the Administrator. See Federal-State
Joint Board on Universal Service, Request for Review by Big River Telephone
Company, LLC, Order, 22 FCC Rcd. 4974, 4976, at n.17 (Wireline Comp. Bur.
2007).” FCC Order, 27 F.C.C.R. at 632 n.3. We see no basis for upsetting the
Commission’s interpretation of its rule. Desert Citizens Against Pollution v. EPA,
699 F.3d 524, 529 (D.C. Cir. 2012) (“We must give ‘controlling weight’ to the
agency’s interpretation ‘unless it is plainly erroneous or inconsistent with the
regulation.’” (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994))).
When an aggrieved party appeals an invoice directly to the FCC, as occurred here,
there is not necessarily anything other than the invoice itself that the agency is being
asked to review.
inContact did not argue before the Commission that its due process rights were
violated because it had no notice that an invoice would be treated as an Administrator
decision under 47 C.F.R. § 54.720. Instead, inContact’s cursory due process
argument in its application for review merely stated that it was denied the opportunity
to challenge the accuracy of the charges because of the Bureau’s determination.
These are very different arguments. Because inContact did not raise the issue of
notice before the Commission, we may not consider it. See 47 U.S.C. § 405; see also
AT&T Corp. v. FCC, 86 F.3d 242, 246 (D.C. Cir. 1996).
The Clerk is directed to withhold the issuance of the mandate herein until seven
days after the disposition of any timely petition for rehearing. See FED. R. APP. P.
41(b); D.C. CIR. R. 41(a)(1).
FOR THE COURT:
Jennifer M. Clark