Federal Communications Commission v. ITT World Communications, Inc.

PETITIONER:Federal Communications Commission
RESPONDENT:ITT World Communications, Inc.
LOCATION:Alpha House

DOCKET NO.: 83-371
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 466 US 463 (1984)
ARGUED: Mar 21, 1984
DECIDED: Apr 30, 1984

ADVOCATES:
Albert G. Lauber, Jr. – on behalf of Petitioners
Grant S. Lewis – on behalf of Respondents

Facts of the case

Question

Audio Transcription for Oral Argument – March 21, 1984 in Federal Communications Commission v. ITT World Communications, Inc.

Warren E. Burger:

We will hear arguments next in Federal Communications Commission against ITT World Communications, Incorporated.

Mr. Lauber, I think you may proceed whenever you’re ready.

Albert G. Lauber, Jr.:

Mr. Chief Justice and may it please the Court:

This case arose out of a multinational telecommunications conference held in Dublin, Ireland, in 1979.

That conference was attended by representatives of six European nations, of Canada, and by three members of our Federal Communications Commission.

Respondent ITT believes that the three attending Commissioners had engaged at Dublin in certain discussions that were hurtful to ITT’s financial interest.

In particular, ITT suspected that the three attending Commissioners had tried to encourage their European counterparts to enter into operating agreements with two American companies that the FCC had recently authorized to compete with ITT in the Atlantic market.

Accordingly, ITT launched a three-pronged attack designed to prevent such discussions from happening again.

First, it filed a rulemaking petition with the FCC challenging the authority of the attending Commissioners to take part in the kind of discussion held in Dublin and seeking the promulgation of rules to govern any future multinational conferences if any were in fact held.

Secondly, ITT filed a complaint in the district court which also challenged the authority of the Commissioners to take part in the kinds of discussions held in Dublin and which sought declaratory and injunctive relief against such asserted ultra vires conduct in the future.

And third, in a different count of the district court complaint, ITT contended that the Dublin gathering and other European gatherings were meetings of the FCC within the meaning of the Sunshine Act and that those gatherings therefore had to be open to the European public and be governed by all of the other procedural requirements that the Sunshine Act imposes.

The case as it comes here presents two questions.

The first concerns the jurisdiction of the district court to entertain ITT’s charge that the Commission had engaged in ultra vires conduct.

The second question concerns the proper construction of the Sunshine Act.

Sandra Day O’Connor:

May I raise a preliminary inquiry, I understand now from the reply brief that your office filed that the Telecommunications Committee has now been eliminated?

Albert G. Lauber, Jr.:

It’s been disbanded, that’s correct.

Sandra Day O’Connor:

And also, the number of Commissioners has been reduced from seven to five?

Albert G. Lauber, Jr.:

From seven to five, right.

Sandra Day O’Connor:

Is there any question of movement now on the Sunshine Act issue?

Albert G. Lauber, Jr.:

I don’t think there is, Justice O’Connor, because the FCC has scheduled additional conferences.

There is one meant to be held in Toronto next month, and they plan to attend.

Sandra Day O’Connor:

At least three of the Commissioners plan to attend?

Albert G. Lauber, Jr.:

Well, that may depend on what the Court decides, who goes.

But since the Commission intends to have future consultations, I think the problem is likely to arise again.

I would like to address the jurisdictional question very briefly first.

Our position here is that the district court had no jurisdiction to consider ITT’s charges of ultra vires conduct by the Commission, because ITT had already submitted that same ultra vires argument to the Commission in its petition for rulemaking.

The Commission considered that ultra vires charge in denying the petition for rulemaking.

That denial was a final order of the FCC and under Section 402(a) of the Communications Act exclusive jurisdiction to review that final order lay in the Court of Appeals.

William H. Rehnquist:

Do you say the district court would have had no jurisdiction, Mr. Lauber, even had the ITT not submitted the matter to the Commission?

Albert G. Lauber, Jr.:

Well, I guess I have two answers to that.

Albert G. Lauber, Jr.:

ITT claims both that there is enough difference between the two causes of action to give the district court jurisdiction.

We disagree with that because, even if there is some difference, they are similar enough that under this Court’s reasoning in Whitney National Bank the district court would still lack jurisdiction.

But as a third position we say that, even if they had failed to make the ultra vines claim before the Commission, under the doctrine of primary jurisdiction the district court would have been required to stay its hand until the–

William H. Rehnquist:

That’s not quite the same thing as saying they have no jurisdiction.

Albert G. Lauber, Jr.:

–That’s correct, that’s absolutely correct.

We contend, therefore, that because the claim was pending before the FCC the district court lacked jurisdiction to consider what was in effect a collateral attack on the FCC decision and an attempt to evade the statutory review procedures that Congress has mandated.

We think that reversal of the Court of Appeals on this issue is required by this Court’s decision in Whitney National Bank, a case that ITT has not cited or discussed in either of its briefs in this Court.

If there are no further questions, I will now turn to the Sunshine Act issue.

The Sunshine Act’s open meeting rules apply only to meetings of an agency, as defined in the Act.

Under the Act’s definitions, a gathering that is attended by members of an agency is a meeting of the agency only if four distinct elements are present–

Harry A. Blackmun:

Incidentally, Mr. Lauber, at whose instigation was the Dublin meeting closed?

The American Commissioners?

Albert G. Lauber, Jr.:

–I am informed that the way… these date back to 1974, and I understand at the close of every multinational session, as the last item on the agenda, the various foreign participants and the Americans would decide when to have the next meeting and what might usefully be discussed there.

Then the staff level people would arrange the detailed agenda, the place to have it, and so forth.

So that all the meetings were called by consensus, as it were, and the Dublin session I think was no exception to that rule.

The four requirements of a meeting of the agency under the Act are:

First, that the members who attend must be a quorum of the full agency or a quorum of a subdivision authorized to act on behalf of the agency;–

Second, the attending members must engage in deliberations;–

Third, those deliberations must determine or result in joint conduct or disposition of official agency business;–

And finally, if those three things are met, the meeting, if such it is, must be a meeting of the agency.

If any one of these four definitional components is absent, the Sunshine Act can have no application.

We contend that, with respect to the multinational gatherings involved here, all four elements were missing.

But today I’d like to focus on just two of the definitional components: the first component, that is, a requirement of authorization to act on behalf of the agency; and the fourth element, that is, the requirement that the meeting be a meeting of the agency.

In our view, upon a proper construction of the Sunshine Act the district court was required as a matter of law to award summary judgment to the FCC on either of these two independently sufficient grounds.

First, then, as to the authorization to act requirement.

All parties here agree that the members who attended these European gatherings were not a quorum of the full Commission.

At all relevant times, the Commission had seven members, so a quorum was four.

However, at no time did more than three members of the Commission attend the consultative process.

However, those three attending members were members and a quorum of a subdivision of the Commission, that is, the Telecommunications Committee.

The question therefore is whether that committee, those three attending members, were authorized to act on behalf of the Commission at the European sessions.

Warren E. Burger:

So as to bind all seven, or a majority of seven, is that what you mean?

Albert G. Lauber, Jr.:

Well, whatever the term “authorization” means, and I will now explain what we think it means.

We think it must be interpreted to involve some kind of power to bind the others.

We think that was absent here.

Now, in order to define whether or not the three attending members were in fact authorized to act on behalf of the entire body in Europe, one must turn to the organic statute that created the FCC, the Communications Act.

That statute, like most such statutes, has a provision which empowers the FCC to delegate its authority, either to panels of Commissioners, to individual Commissioners, to boards of employees, or to single employees.

The Communications Act provides that such a delegation of authority can be made only by published rule or by order.

It further provides that such a rule or order can be adopted, modified, or rescinded only by a majority vote of the full Commission.

Now, in fact the FCC by rule has delegated a great deal of authority to various groups and individuals within the Commission.

Those delegation orders occupy some 20 pages in 47 CFR Subpart F.

Now, among these many delegation orders, only one delegates authority to the Telecommunications Committee as it formerly was.

That delegation order formerly authorized the committee to act upon applications for certificates of public convenience and necessity filed by common carriers under Section 214 of the Act above a certain dollar range.

Now, Section 214 applications are required to be filed by common carriers before they can acquire facilities to initiate new service.

Section 214 applications are handled in a relatively formal proceeding where the applicant submits a brief in support of his application, opponents, typically competitors, file opposing briefs, called petitions to deny, and the applicant then submits a reply brief.

On the basis of the pleadings, the committee or the full Commission will then either grant or deny the application.

Neither court below found or even suggested that the three attending Commissioners were acting on Section 214 applications in Europe.

Moreover, those three attending Commissioners of that committee had received no other delegation of authority from the FCC to act on behalf of the Commission in Europe or anywhere else.

Accordingly, in our view it’s perfectly plain that those European… because the Commissioners had not been authorized to act on behalf of the FCC, those gatherings were not meetings of the FCC as a matter of law, and that’s the end of the case.

Now, the Court of Appeals agreed that the three attending Commissioners had received no formal delegation of authority from the full FCC.

Rather, the D.C. Circuit hypothesized that the FCC, in violation of the Communications Act, had made a sub rosa delegation of authority, not evidenced by a published rule or order, to the three attending Commissioners.

The court below based this hypothesis entirely upon inference, an inference it drew from the facts that the attending Commissioners went to Europe in their official roles and that they there discussed matters that were important to the FCC.

In our view, this reasoning is just plain wrong.

First of all, we know of no authority for the proposition that an agency, in the face of an explicit delegations of powers provision in its statute, can somehow delegate authority in any other way.

Warren E. Burger:

Is there any authority to hold meetings outside of the continental limits of the United States?

Is there anything, as with courts, that fixes the place that they must meet?

Albert G. Lauber, Jr.:

I’m not sure, Mr. Chief Justice.

I believe that there is something in the statute of the FCC which requires that it normally meet in Washington, D.C. I’m not aware if panels could conduct activities elsewhere.

Warren E. Burger:

It would be somewhat unusual, would it not, for a regulatory agency to hold meetings to take action in Dublin or Paris or Rome?

Albert G. Lauber, Jr.:

I think it would be unusual, but I am not sure whether there is any express provision mandating that they hold meetings in the continental U.S. But we will try and find out before the reply.

Secondly, the second reason the unofficial delegation theory will not work, is that the assumption of an illegal delegation by the court below was wholly contrary to the presumption of regularity that normally is accorded administrative action.

Albert G. Lauber, Jr.:

Thirdly, the Court of Appeals’ theory we think proves too much.

It has no limiting principle.

If unofficial delegation can be inferred in the absence of an explicit delegation, a meeting could be held to be held whenever members of an agency go somewhere in their official roles and talk about important business.

It would apply to seminars, lectures, trade group meetings, and all the rest of it.

William H. Rehnquist:

Mr. Lauber, what does it mean when you use the term

“go somewhere in their official role? “

Does that mean they’re getting paid for transportation and per diem?

Albert G. Lauber, Jr.:

Well, I think that’s what the Court of Appeals must have meant, that they were going on Government time; they were being invited because of who they were, i.e., Commissioners, not tourists or the like; and that they were there because they were Commissioners.

The Europeans wanted them there as Commissioners.

The whole process grew out of misunderstanding by the Europeans, who are accustomed to–

William H. Rehnquist:

Well, what does it mean to be somewhere as a Commissioner?

Albert G. Lauber, Jr.:

–I guess it means to be somewhere and be able to speak with some authority about the Commission’s interests and objectives, what it hopes to accomplish.

The Court of Appeals… we agreed below that they were attending in their official roles.

No one said what that meant.

William H. Rehnquist:

Well then, why did you agree to it?

Albert G. Lauber, Jr.:

Well, because we agreed–

William H. Rehnquist:

If you didn’t know what it meant?

Albert G. Lauber, Jr.:

–that the whole… it wasn’t down there, but–

[Laughter]

Because it was clear that the Europeans wanted the Commissioners there because they were Commissioners and because they had some kind of authority to speak about what was important.

They weren’t just commentators or lecturers or scholars.

They were part of the American Government bureaucracy.

And the Europeans in the past have been frustrated because they would cut a deal with a carrier and the Commission would come in and veto it, and they didn’t like not knowing what was going on.

They wanted to meet the Commissioners and talk to them personally.

William H. Rehnquist:

And cut a deal with them, too.

[Laughter]

Albert G. Lauber, Jr.:

A fourth problem with the Court of Appeals’ theory we think is that it will make it impossible to administer the Sunshine Act as Congress intended.

The Act’s rules operate generally prospectively.

That is, if an agency plans to hold a meeting it must announce the time of the meeting, the place, agenda, in advance of the meeting.

It must also announce in advance whether or not the meeting will be open or closed to the public.

Albert G. Lauber, Jr.:

Congress therefore, we think, must clearly have presumed that–

Harry A. Blackmun:

Mr. Lauber, that’s the question I really wanted to get at.

Who makes that determination as to whether it will be open or closed to the public?

Albert G. Lauber, Jr.:

–Well, under the Sunshine Act it requires the agency to vote by a majority vote whether or not to close the meeting under one of the ten exceptions under the Sunshine Act, and they must record those votes, publish who voted how on the record within a week, I think, after the votes are taken.

Harry A. Blackmun:

But in these European meetings, who makes the determination?

Albert G. Lauber, Jr.:

Well, they’ve never really been forced to face the issue until this lawsuit began.

I assume it would have to be done by some kind of consensus.

There were people from seven or eight European nations and from the United States, and if it were simply a majority vote–

Harry A. Blackmun:

At least the record, then, does not show that the American representatives requested and obtained the closed–

Albert G. Lauber, Jr.:

–Oh, no, I’m sorry.

That’s not correct.

I think the record does show that it was the FCC that requested that the Dublin session be closed when discussion came around to the issue of new carriers and services, and that the Europeans went along with that.

But what I’m talking about is the power to effect this.

Congress clearly presumed that an agency would be able to know ahead of time whether it was going to have a meeting or not, and if the status of a gathering as a meeting depends not on an objective indicia of a delegation of authority by statute, but on some appellate court’s inference about whether delegation had been illegally conferred, the agency can never know ahead of time whether a gathering will be a meeting or not.

Finally, we think that the Court of Appeals theory would facilitate a great deal of harassment of regulatory bodies by those who wish to frustrate the administrative process.

If authority to act can be inferred in the absence of an explicit delegation of power, people can go around filing lawsuits challenging almost any discussions members have as putative meetings under the Sunshine Act.

Such litigants would typically demand the right to have discovery as to all items, all information that might bear upon the existence vel non of a sub rosa illegal delegation.

And we think this would convert the Sunshine Act into just another weapon that litigants can use to stifle administrative action they don’t want to see happen.

So for all these reasons, it is our contention that the Court of Appeals was wrong in believing that authorization to act on behalf of an agency can be inferred in the absence of an explicit delegation of authority made pursuant to statute.

Accordingly, because there was no official delegation made here, summary judgment was dictated in favor of the Commission.

I would like to pass over the next two components of the definition and go to the fourth one, that is, the requirement that the meeting be a meeting of the agency.

It is our position that even if one could infer authorization to act here, the European gatherings would not be covered by the Act, because even if meetings, they were not meetings of the FCC.

Now, requiring that a meeting be an agency meeting, Congress we think clearly intended that the meeting must be run by and under the control of the agency in question.

John Paul Stevens:

–May I interrupt just to ask, what statutory language do you rely on for this fourth requirement?

I don’t see this requirement there in so many words.

Albert G. Lauber, Jr.:

Well, it’s the prepositional phrase (b) of “agency meeting”.

John Paul Stevens:

But it’s

“take action on behalf of the agency. “

That’s where the “of” appears.

Albert G. Lauber, Jr.:

Right, but I think there’s a section–

John Paul Stevens:

I thought you relied on the joint conduct.

You don’t rely on the joint conduct language?

Albert G. Lauber, Jr.:

–Well, we do rely upon that, but only on the briefs.

I’m not going to address that orally now.

We do rely upon the other two, the deliberations requirement and the joint conduct requirement.

John Paul Stevens:

But I’m still… I must confess, I have the statute in front of me: I don’t know what language you say requires that it be a meeting of the agency.

I guess it would be helpful to me to be able to know.

We’re talking about, I take it, 552(b)(A)(2), the definition of the term “meeting”?

Albert G. Lauber, Jr.:

I think what I’m talking about is subsection 552(b)(B).

It says at the end there, the bottom of page 1A of the appendix:

“Except as provided, every portion of every meeting of an agency shall be open to public observation. “

That’s where the public observation requirement comes in.

John Paul Stevens:

Thank you.

Okay, I was lost.

I’m sorry.

Albert G. Lauber, Jr.:

So that’s our fourth test, that the meeting must be a meeting of the agency, and we think that Congress meant that that implied the meeting be run by, under the control of, the agency.

Otherwise, clearly the agency could not ensure that the Act’s various rules were complied with.

In fact, the statute uniformly presupposes that the agency will be in control of the meeting.

For example, it presumes that the agency can set the time, place and agenda of the meeting unilaterally.

The Act presumes that the agency can issue rules that will govern the meeting and bind all concerned.

And the Act assumes that the presiding officer of the meeting will be a member of the agency.

Here we think the multinational gatherings held in Europe were plainly not under the control of or run by the members of the FCC who attended.

Byron R. White:

Would you say there was no meeting that took place if there had been an explicit delegation to the people who attended this international meeting with authority to vote in favor of a certain resolution in a way that would bind, would purport to bind the agency?

Albert G. Lauber, Jr.:

We would contend that, because even then–

Byron R. White:

It still wouldn’t be a meeting?

Albert G. Lauber, Jr.:

–It would not be a meeting of the agency.

Byron R. White:

Even if that action was within the scope of the authority and would bind the agency?

Albert G. Lauber, Jr.:

That’s our position, because even if they had authority to take action, they could not control the meeting so as to ensure the Act was complied with.

Byron R. White:

Well, there were just two meetings going on at the same time.

They certainly were in control of their part of the meeting.

Byron R. White:

They voted.

Albert G. Lauber, Jr.:

But all they could do would be to leave.

Byron R. White:

They voted in accordance with their instructions.

Albert G. Lauber, Jr.:

And our position–

Byron R. White:

They were in complete charge of their part of the meeting.

Albert G. Lauber, Jr.:

–They were, but they could not force the other attendees to let the public come in and see them vote.

All they could do would be to walk out of the meeting.

And our position is that–

Sandra Day O’Connor:

Well, couldn’t it be kind of like a caucus within the meeting?

I mean, the three of them caucusing among themselves to react to whatever was going on at the larger meeting, and it’s a meeting within the meeting sort of thing.

Albert G. Lauber, Jr.:

–Well, I don’t know how that would… how you could administer that in the real world.

I guess it’s possible in some way to excise the–

Byron R. White:

Well, in the real world that happens all the time in big meetings.

[Laughter]

Is it correct… may I ask this, just as I am sorting it out… that you don’t deny that it’s a meeting for this argument?

You’re just saying it’s not a meeting that must be open to the public?

Albert G. Lauber, Jr.:

–Right.

The delegation argument is entirely separate.

John Paul Stevens:

I understand.

Albert G. Lauber, Jr.:

We’re now saying that, even if you say it’s a meeting, they have authority to do something, still it would not be a meeting of the FCC that they could control and open up to the public if they didn’t run it.

John Paul Stevens:

Well, the statute doesn’t require that it be open to the public unless it’s a meeting of the agency.

Albert G. Lauber, Jr.:

Right, that’s correct.

William H. Rehnquist:

Even though it is a meeting.

Albert G. Lauber, Jr.:

Now, here the meetings, if such they were, were held on foreign soil, they were hosted by foreign governments, they were chaired by foreign officials, they were attended by foreign representatives of foreign governments who outnumbered the attending Commissioners and equaled them in rank.

We think it is quite clear here that the attending Commissioners were in no position to decree that the meetings be governed by U.S. law or be open to the public.

And if the Europeans objected to having the meetings open to the public and governed by U.S. law, as well they might, the Commissioners would be forced to have in effect a Hobson’s choice: Either not to go to the meeting or to go and violate the Sunshine Act.

William H. Rehnquist:

What are the sanctions for a violation of the Sunshine Act?

Albert G. Lauber, Jr.:

I believe, Justice Rehnquist, they’re all prospective.

The Act provides that you cannot invalidate something that was done at an improperly closed meeting.

Byron R. White:

But you have to appear before the Supreme Court.

Byron R. White:

[Laughter]

Albert G. Lauber, Jr.:

What the remedies are, in district court you can get an injunction enjoining compliance with the Act in the future, and you can get release of a transcript which would be required to be made of a closed meeting if the Act were applicable.

And we think that to require the Commissioners to either forego the meeting or go and violate the law was not what Congress would have intended when it enacted the statute, because the Act was meant to impose procedural restraints on existing meetings, not to impose substantive restrictions on agency action.

Therefore, again, even if one were to assume these were meetings, they were not meetings of the agency because they were not controlled by the agency, and therefore on that separate ground summary judgment was dictated in favor of the Commission.

If there are no further questions, I’ll reserve the balance of my time.

Warren E. Burger:

Mr. Lewis.

Grant S. Lewis:

Mr. Chief Justice, may it please the Court:

Before addressing the FCC’s legal arguments, there are a number of additional facts that I think should be called to the Court’s attention to put this litigation in its proper context.

In the mid-1970’s there was a significant disagreement between the FCC and representatives of European governments as to the nature of the facilities that should be constructed to handle the increasing trans-Atlantic communications traffic.

Basically, the FCC favored use of satellites, the European governments favored the use of cable.

As a result of the give and take of the consultative process, meetings which had been going on, the FCC basically agreed to defer to the Europeans and authorized the construction of so-called TAT, for trans-Atlantic, 7, the TAT-7 cable.

Now, at about the same time the FCC, which of course for many years has sought to foster domestic competition in the provision of communications services, also sought to apply these policies to the international arena and, in a significant departure from prior practice, it authorized a number of new companies to provide international service, even though they had never entered into agreements with the European governments with which they would have to deal.

At about the time… and this is about the same time.

At the time of the TAT-7 decision, authorizing TAT-7, Commissioner Fogerty, a key member of the Telecommunications Committee of the Commission, the committee charged with its express delegation of authority with authorizing construction of major new facilities, issued a concurring opinion.

He stated that the FCC was deferring to the European governments even though he didn’t believe that a new cable was appropriate.

But he went on to say, we expect the tit for the TAT, and specifically threatened that unless the European governments agreed to deal with the new American carriers the FCC would not listen to them in the future.

This is October 1978.

The text is set forth in paragraph 8 of our complaint.

In March ’79 at a consultative process meeting, Commissioner Fogerty again made a speech seeing the tit for TAT, the quid pro quo, and making it clear he is not just speaking for himself but for the full FCC.

In May of 1979, Chairman Ferris of the Commission, and of course a member of the Telecommunications Committee, testified before Congress that the Commission was in the process of trying to apply leverage on the European governments.

But despite all this, when it came time for the October 1979 consultative process meeting in Dublin, not a single European government had backed down, not a single European government had acceded to the FCC demands.

It’s at this point that the FCC convened the closed meeting from which representatives of the American carriers were excluded.

This was a basic departure from past consultative process meetings, which were open to all interested parties.

There’s no question that this was done at the instance of the FCC.

The FCC so admitted in its answer to interrogatories that we served, which are contained in joint appendix page 116.

They also admitted so in their brief to the Court of Appeals, as the Court of Appeals’ decision memorializes on page 6 of that decision.

The FCC then called this special meeting.

I would also point out that there were nine representatives of the FCC, three Commissioners, six members of Commission staff, at the meeting, as compared to single representatives of six of the foreign governments.

That’s in an interrogatory answer at joint appendix 108, 109.

ITT, being excluded from this meeting for the first time, it’s correct, tried to find out what happened.

Grant S. Lewis:

It served a Freedom of Information Act request asking for documents about the meeting.

And it also filed a petition for rulemaking, basically questioning the wisdom and propriety of what the FCC was doing, but saying that at the very least the Commission should define what its representatives would be doing and establish some procedural safeguards for the future.

The Commission took no action.

The FOIA request was denied in principal part by the Common Carrier Bureau.

We appealed to the full Commission.

The Commission did not act within the time required by statute.

The Commission took no action on the petition for rulemaking that we filed.

They did, however, announce that there was going to be another closed meeting in England, this time in Ascot.

And at this point ITT filed the lawsuit that gives rise to the argument today.

Unlike ITT’s petition for rulemaking, which focused on the future, basically calling on the FCC to establish some rules for the future, ITT basically bit the bullet and challenged the past propriety of what the Commission had been doing.

We specifically quoted what Commissioner Fogerty had said about threatening the European governments.

We urged and alleged that such conduct on behalf of an American administrative agency is ultra vines, that negotiations with foreign governments is the province of the State Department, not a regulatory agency, and we asked that that conduct be enjoined.

We also stated that the conduct involving the joint conduct of agency business was subject to the Sunshine Act.

There was some preliminary discovery and a motion to dismiss was filed by the Commission.

We cross-moved for summary judgment.

Pursuant to the local rule, we identified eight statements of the Commission, of its… of Commissioners and of its general counsel, which described what the Commission was doing at consultative process meetings, what it proposed to do.

William H. Rehnquist:

Mr. Lewis, let me go back just a minute with you if I may.

Grant S. Lewis:

Certainly, sir.

William H. Rehnquist:

The general provision for review of actions of the Federal Communications Commission provides that review lies with the Court of Appeals, doesn’t it?

Grant S. Lewis:

Justice Rehnquist, review of FCC orders lies with the Court of Appeals.

Review of administrative agency action would lie in the district court.

We did take an appeal when they denied our petition… they ultimately, after the lawsuit was filed, they denied our petition for rulemaking, and we did take an appeal from that.

But that order dealt with whether the Commission would establish rules for the future.

It did not involve in any way an adjudication of the propriety of its past conduct.

William H. Rehnquist:

Well, did you get into the district court under the Administrative Procedure Act?

Grant S. Lewis:

We get into the district court… the Administrative Procedure Act provides for review of agency action that’s not otherwise subject to review, which would be the basis for going to the district court rather than the Court of Appeals where we’re challenging an action rather than an agency order.

William H. Rehnquist:

And is that distinction well established in the cases?

Grant S. Lewis:

We believe it is, sir, yes.

I will return to that in a moment, but basically there are many doctrines that narrow the jurisdiction of the district court where there will subsequently be a remedy if you just wait and abide the administrative proceeding.

But the district court jurisdiction is residual.

Grant S. Lewis:

The FCC basically elected not to join issue with us on our statement of undisputed facts.

They specifically represented to the court that there were no material facts in dispute in the case, and that’s the posture then in which the case arose and in which summary judgment was granted.

The statements that we called to the court’s attention, the district court and Court of Appeals, did not show general informal discussions, as the Commission states in the question that it presented to this Court when it asked that certiorari be granted.

Rather, the statements clearly establish, to quote them, that the Commission was in a negotiating stance, was seeking a tit for TAT or a quid pro quo, that the Commission was applying leverage on the European governments.

And basically, at one point Commission Fogerty said: Well, we’re going to go overseas and show we really mean business.

These are simply not informal discussions involving general exchange of information.

With that background, I’d like to respond, then, obviously, to the FCC’s arguments as to why the Sunshine Act they claim should not apply.

We of course urge that it has been correctly applied, recognizing that the legislative history shows that there is to be a presumption of openness in government and that the burden of proof is on the administrative agency to justify departure from those principles.

The first point the FCC argues is that, and we all admit, no question, that there was not a quorum of the FCC as it then existed, although in all likelihood there will now… any future meeting involving the same three Commissioners will of course involve a quorum of the Commission as it now exists.

The Sunshine Act is clear that the FCC applies… excuse me, the Act applies, not only to meetings of an agency, but to subdivisions of an agency that are authorized to act on behalf of the agency.

Now, the Commission’s argument before this Court is that because the Telecommunications Committee was not expressly authorized to participate in consultative process meetings and because its authority was limited to passing on applications for construction of major new facilities, whatever it did was unauthorized and therefore the Sunshine Act can’t be applicable.

Now, we’d submit there can be no serious question as to the applicability of the Act.

We alleged in paragraph 10 of our complaint, joint appendix page 64, for several years representatives of the FCC, through its Telephone and Telegraph Committee and staff, as it was then called, have met with the Canadian and European telecommunications administrations to discuss facility planning.

The FCC’s answer to our complaint, set forth at joint appendix 73:

“Defendant admits that meetings of the type described in paragraph 10 have occurred. “

In its order denying our petition for rulemaking, one of the statements on which we relied in support of our motion for summary judgment, set forth at page 165 of the joint appendix, this was the Commission’s statement, the Commission:

“We have undertaken to have Commission representatives meet face to face with them. “

–that is, representatives of the foreign governments…

“to discuss mutual present and future telecommunications needs. “

I might add, to the extent there is any question, Commissioner Fogerty had no doubt about his authority when he addressed the consultative process meeting in Montreal.

At joint appendix page 165: “I think the Commission”, he said…

“I can speak for myself and I’m sure for the Chairman and Mr. Lee. “

–he’s the third member of the committee…

“and for the other Commissioners who are not present. “

“We want to meet you halfway, but we do request, I think, that the quid pro quo would be. “

He clearly advises the European representatives he is speaking for the entire Commission.

Warren E. Burger:

Do you say that’s decisionmaking?

Grant S. Lewis:

That speech obviously is not decisionmaking.

Warren E. Burger:

My question is, do you say that is decisionmaking or not?

Grant S. Lewis:

We are saying that he is participating in a meeting.

Grant S. Lewis:

When he delivered the speech he was not involved in decisionmaking.

I am really simply addressing the fact that he recognized his authority, and the Commission has consistently recognized the authority of the Telecommunications Committee: that as indicated, they represented to the Court of Appeals, they stated that Commissioners were participating in their official capacity, in their official role and qua the Telecommunications Committee.

Warren E. Burger:

But are you going to at some point tell us what decisions were made in Dublin?

Grant S. Lewis:

We don’t know what decisions were made in Dublin.

We were excluded from the meeting.

We do know, and we have set forth in our statement of undisputed facts, what the Commission said it would be trying to do in Dublin.

It would be seeking a tit for tat.

Commissioner Fogerty was planning to go and show we really mean business, to basically engage in the conduct of the business of the agency.

Sandra Day O’Connor:

Mr. Lewis, do you think that simply implementing a decision previously reached by an agency would constitute… would fall under the Sunshine Act, and that the deliberations or the actions resulting in joint conduct?

I mean, if you have a situation, maybe apart from yours, where a decision has already been made and the agency just sends somebody out to implement it, does that invoke, the implementation part, invoke the Sunshine Act?

Grant S. Lewis:

Justice O’Connor, when the agency sends someone out the answer is no.

When they send a group of Commissioners out to see to it that the decision is implemented, they are then involved in the joint conduct of agency business.

Sandra Day O’Connor:

But perhaps not deliberations.

If they’re just sent out to implement something, I’m not sure that it meets all the requirements of the Sunshine Act, if that’s the fact.

Grant S. Lewis:

This is basically… where the Court of Appeals went is exactly where I believe Your Honor is going.

Namely, it concluded its analysis on the question of authority, whatever the scope of the Commission’s endeavors, which is what I think you’re addressing, there’s no question that they’re undertaken on behalf of the Commission.

Let’s then go to the question, what were they doing at these meetings, something that the FCC is avoiding mentioning today before this Court.

That’s something they’ve said they’d rather not argue, which we can understand given the undisputed statements that were made below as to the scope of the activities.

Thurgood Marshall:

Explain to me just simply, what authority does Congress have over Dublin?

Grant S. Lewis:

Your Honor, Congress is not seeking to subject Dublin or any foreign administration to the scope of the Sunshine Act.

All that Congress has done is said that when the FCC engages in agency business that it doesn’t matter where they do it.

The policies favoring openness in government are as applicable in Dublin, if that’s where the Commission goes to do its business and to get its business done.

I agree, we’re dealing with a very unusual situation.

Thurgood Marshall:

But I mean, how can the Commission or anybody else in the United States make Dublin do anything?

Grant S. Lewis:

Nobody… the only thing Congress is doing is telling the Commission what to do.

Normally, of course, dealings with foreign governments–

Thurgood Marshall:

Well, what could the Commission do to make the meeting in Dublin public?

Grant S. Lewis:

–Your Honor, the Commission closed the meeting.

It’s undisputed that the only reason the American carriers were excluded from the meeting was because the FCC asked that that be done.

There’s no question that this was totally the doing of the Commission.

Grant S. Lewis:

Interested American parties have been participating in open meetings for five years, and it’s only when the Commission, unable to persuade the Europeans to do what it wanted to have done in the open, that they then sought to go into the dark and to exclude the Americans.

This is precisely the kind of conduct that Congress sought to expose to the sunlight when it enacted the Sunshine Act.

Thurgood Marshall:

I agree fully with what you say.

But my point is, I am as certain as I am sitting here that Congress didn’t intend to move in a situation like this in a foreign country.

Grant S. Lewis:

Your Honor, I’m equally sure that Congress didn’t intend for representatives–

Thurgood Marshall:

Yes, but I mean, you agree with that, don’t you?

Grant S. Lewis:

–Congress certainly did not intend… the legislative history is clear that the question is what is the agency doing, not where is it being done?

Thurgood Marshall:

I mean, when we’re negotiating the arms agreement, has he got to be public?

Grant S. Lewis:

No, Your Honor.

That’s exactly… that’s not the province of a regulatory agency.

That’s going to be done by agencies that are not subject to the Sunshine Act.

Dealings with foreign governments is not the province of an administrative agency.

That’s our ultra vires count, and we ultimately expect to establish that the FCC has done what we’ve alleged, namely engaged in ultra vires negotiations.

But if they’re not, if what they’re doing is proper, then they’re still engaged in agency business which is subject to the Sunshine Act.

Sandra Day O’Connor:

But the use of the word “business” troubles me a little bit, in view of the precise requirements of the statute.

And to try to bring you back to the question which still isn’t answered, how does implementation of a prior decision constitute a deliberation?

Grant S. Lewis:

Justice O’Connor, the word “deliberation”… I think the legislative history on this is clear that deliberations simply meant, that phrase was used simply to exclude totally informal contacts.

And the examples that are given in the legislative history are casual conversations on the golf course or at the lunch table.

The key phrase is the joint conduct or disposition of agency business, and if the agency is involved in decisionmaking… I don’t believe the Commission disagrees with this.

If the agency is actually involved in decisionmaking, then it should be done in the public or not at all.

The FCC’s proposed–

Sandra Day O’Connor:

Well, if the decision has already been made and they are just implementing it, then does that fall within the Sunshine Act?

Grant S. Lewis:

–The FCC… agencies normally don’t implement decisions.

I mean, agencies write decisions, they publish them, and the decisions speak for themselves.

When the FCC goes overseas to try to bang heads–

Sandra Day O’Connor:

Well, but you are saying that in this instance the agency was trying to implement its decision–

Grant S. Lewis:

–Yes, it was trying–

Sandra Day O’Connor:

–as I understand your claim.

Grant S. Lewis:

–The only thing the agency authorized was Grafnet and Telenet to engage in international operations.

Now, the policies underlying that were policies that the agency sought to foster.

Grant S. Lewis:

We believe the history is clear that any time an agency is engaged in action in furtherance of the business that it’s to be done in the sunshine.

The only things to be excluded are casual conversations and the like.

When they went… as I say, the fact that they went overseas is unusual, because regulatory agencies typically don’t get involved trying to negotiate with foreign governments.

But when they do that, then it’s agency business subject to the Act.

We don’t understand the FCC to deny that if the commission is… and I think their brief is clear on this… if they’re doing what they said they’re doing in the undisputed statements of fact, that that conduct is subject, is within the definition of “meeting”… the joint deliberations involving the joint conduct or disposition of agency business.

They do reserve their point in the reply brief, which I think is what they’re saying here, that even if they are involved in the joint conduct or disposition of agency business, the Sunshine Act is not applicable, either on the one hand because whatever they did was unauthorized or on the other because whatever they did they didn’t do at meetings of the FCC in Washington.

But we don’t understand them to deny that if in fact they were in a negotiating stance, as they admitted, if they were seeking a quid pro quo, that the Act would be applicable.

We point out that they proposed… when you get away from decision, formal decision making itself, they’ve proposed a standard based on Bergen Klitzman’s Interpretive Guide to the Sunshine Act.

As we indicate in our brief, we fully accept that standard and we believe that on the undisputed facts we come within it.

With respect to the question, the final question which is put, their final point, which is the question, are these meetings of the FCC?

The Senate report with respect to what is a meeting makes it clear, and I quote from page 19:

“The test is what the discussion involves, not where or how it is conducted. “

Now, yes, it’s unusual, as we say, to have the Sunshine Act applied overseas, but that’s only because of the wholly unusual nature of the conduct.

When the agency is involved, as seems admitted virtually here, in the joint conduct of agency business, then the fact that the Act is being applied in some place other than the United States simply is not relevant.

The meetings here were called by the FCC, there’s no question of that.

The closed meeting in Dublin was called by the Commission.

The American carriers were excluded by the Commission.

Again, the question as to whether, Justice Stevens, are these meetings of the FCC.

We’d invite the Court’s attention to joint appendix page 171, our statement of material facts not in dispute:

“On February 20-21, 1980, the Telecommunications Committee of the FCC and other FCC representatives again conducted a closed and off the record meeting in Ascot. “

The FCC replied on joint appendix page 173: “No objection”.

In the Court of Appeals the FCC–

John Paul Stevens:

Read the full sentence: conducted a meeting with representatives of these European–

Grant S. Lewis:

–Yes, that they conducted the meeting–

John Paul Stevens:

–Does the FCC normally conduct meetings within the meaning of this provision with representatives of other–

Grant S. Lewis:

–The Sunshine Act is clear that the fact that representatives even of the public are there does not affect the question of whether these are in fact meetings of the Commission.

If joint conduct of business is involved, the fact that others are there still makes it subject to the coverage of the Act.

John Paul Stevens:

–It still makes it subject to the coverage, but his point is that the requirement that it be open doesn’t apply unless it’s a meeting of a agency.

Grant S. Lewis:

What he is citing from, sir, is not the definition either of meeting or the definition of agency–

John Paul Stevens:

No, it’s not the definition.

John Paul Stevens:

It’s the requirement that the meeting be open.

Grant S. Lewis:

–And we think it’s clear that if there is a meeting as defined of the agency as defined, that the use of the preposition “of” and argument about that does not excuse compliance.

If it’s an agency involved and if there’s a meeting involved, we think that’s–

John Paul Stevens:

So you say there are really only three requirements?

Grant S. Lewis:

–We would actually say that there are two.

There are two definitions at issue here, sir.

One is the meaning of the word “agency”; the other is the meaning of the word “meeting”.

We invite the Court’s attention to an affidavit submitted by the FCC in the Court of Appeals.

Now, it’s an affidavit that’s entitled to very little weight.

They offered it to support an application for a stay.

We asked to take the deposition of the affiant.

The FCC refused to produce the affiant, and then the Court of Appeals denied the stay.

So but even there, when he’s explaining his expertise… this is joint appendix 177, Mr. Demerie.

This is speaking now about the closed meetings.

Mr. Demerie is Assistant Bureau Chief of the Commission.

“I organize and coordinate these meetings, and have also overseen the Commission’s efforts to expand the consultative process dialogue to include discussions of non-facilities communications issues. “

We believe this is a kind of conduct that Congress sought to expose to the sunshine.

Now, with respect to the question of the Court’s jurisdiction.

As you recognized, Justice Rehnquist, it’s generally recognized that appeals from agency orders go to the Court of Appeals.

William H. Rehnquist:

And it’s also generally recognized, isn’t it, Mr. Lewis, under cases like Myers against Bethlehem Shipbuilding, that the appellate court or any sort of reviewing court just doesn’t step right into the middle of an agency proceeding?

You wait ’til the agency’s done what it’s going to do.

Grant S. Lewis:

That’s precisely correct, sir, and therefore there are many doctrines… exhaustion as articulated in Myers, finality, ripeness… which all stand for the proposition that premature interruption of an ongoing agency proceeding is inappropriate, assuming the plaintiff is not prejudiced by the delay.

Now, we believe that even those doctrines have a very important exception, namely the Litem v. Kine exception for patently ultra vires conduct such as we allege here.

But this isn’t that kind of a case.

We’re not waiting for some future FCC order that will then be appealable.

If the FCC achieves everything it sets out to do, if it persuades the French to deal with Graphnet or Telenet, to give it the quid pro quo or the tit for tat, then there’s nothing more for the Commission to do.

That action’s going to be taken in Europe, in France, and all that will happen is that Graphnet or Telenet will be authorized by the French Government.

This is not a case–

William H. Rehnquist:

Well, why isn’t that damnum absque inuria so far as you’re concerned?

Grant S. Lewis:

–We believe we have a right to challenge ultra… the standing issue is… they argued that–

William H. Rehnquist:

Well, what right do you have to challenge ultra vires, if it isn’t going to result in any Commission order that would affect you?

Grant S. Lewis:

–It’s the Commission action.

We have a right to challenge ultra vires Commission action.

William H. Rehnquist:

Why do you say that?

Grant S. Lewis:

That’s I believe set forth in the Administrative Procedure Act.

That’s not disputed by the Commission.

They didn’t raise that argument here.

The Court of Appeals addresses standing.

William H. Rehnquist:

Yes, but you can’t just walk in off the street and say that the Commission is about to do something in the future that might affect my client.

You’ve got to point to an order of the Commission.

Grant S. Lewis:

No, the Commission is taking action.

It’s really the question–

William H. Rehnquist:

Not official action.

Grant S. Lewis:

–When it goes overseas and urges the French Government to grant an operating agreement to our competitors, and when the French Government only wishes to deal with a limited number of American carriers… I think all that is undisputed… we are threatened with immediate danger if the Commission enters… if the French Government acts.

Our right to standing was litigated by the Commission below.

They lost in the Court of Appeals.

The Court of Appeals decision on this I think establishes our standing.

William H. Rehnquist:

Well, unless it’s wrong.

Grant S. Lewis:

As a competitor of the company that they’ve authorized, we believe we’ve got standing.

The Commission’s not… that’s not dispositive, I recognize, before this Court.

But the residual jurisdiction of the Court to review wrongful administrative agency action is something that I think is generally recognized.

Now, the only question… and as I say, the standing of a competitor to complain.

We will be hurt very definitely if the French Government knuckles under to the Commission.

That’s why we’re in court.

The cases that say that a competitor has standing to challenge ultra vires action–

Thurgood Marshall:

Are you in court for that?

I thought you were in court because you weren’t allowed at the meeting?

Grant S. Lewis:

–Your Honor, we’ve got two complaints.

We’re in court because we were excluded from the meeting.

Thurgood Marshall:

As you answered the Chief Justice’s question, you don’t know what was decided.

Grant S. Lewis:

Pardon me?

Thurgood Marshall:

You don’t know what the decision was.

At least that’s what you said.

Grant S. Lewis:

We know what the Government set out to do, because they’ve stated that.

Thurgood Marshall:

Well, didn’t you tell the Chief Justice you didn’t know what the decisions were?

Grant S. Lewis:

That’s correct.

We do not know.

Thurgood Marshall:

Well, why don’t you find out?

Grant S. Lewis:

That’s why we’re… the Government in the Sunshine Act–

Thurgood Marshall:

If we say the Sunshine Act should have been, that won’t tell you what the decisions are.

Grant S. Lewis:

–Well, that will give us perspective of–

Thurgood Marshall:

Is there some form of action where you can get the decisions?

Grant S. Lewis:

–The only way to find out what happened is in discovery in the district court.

I mean, I think it’s recognized–

Thurgood Marshall:

Well, you have to have a case before you can get discovery, don’t you?

Grant S. Lewis:

–We filed one, sir.

Thurgood Marshall:

Yes, but you want a case to have an open hearing.

Grant S. Lewis:

No, we have two claims for relief.

One is that in the future the meetings should be subject to the Sunshine Act.

Thurgood Marshall:

I guess I know, nowadays you can file conflicting causes of action.

But this is the biggest conflict I’ve seen in a long time.

Grant S. Lewis:

Justice Marshall, that’s not… I’d like to change your mind about that, because the Sunshine Act claim looks to the future and wants to get these meetings open for the future.

The first claim for relief, challenging ultra vires conduct, is looking to the past.

We’re seeking an adjudication after discovery of the Commission, what they’ve done in Dublin… that’s the only way for us to find out… and then such relief as is appropriate.

Thank you.

Warren E. Burger:

Do you have anything further, Mr. Lauber?

Albert G. Lauber, Jr.:

I have two brief points.

On the authorization to act requirement, ITT would interpret the words

“authorization to act on behalf of the agency. “

to mean something like “allowed to be there”.

Albert G. Lauber, Jr.:

We’re not contending that the three Commissioners were acting illegally or improperly in going to Europe.

Our contention is they were not authorized to act on behalf of the FCC in Europe because they had no official delegation of authority.

Secondly, apropos of Justice Marshall’s question, if it were held that the Act applied to these European gatherings, that would require the FCC not only to dictate the open or closed nature of the meeting, but also to dictate the time, the place, the agenda, and all the rest of it.

Congress could not possibly have intended that.

Thurgood Marshall:

But the fact that you won’t tell them what the decisions were does lend credit to his position that you shouldn’t have had a closed meeting.

Albert G. Lauber, Jr.:

Justice Marshall–

Thurgood Marshall:

Am I right on that?

Albert G. Lauber, Jr.:

–I think the way that ITT should have dealt with that is… they presented their argument to the FCC in a rulemaking petition that the Commissioners were doing bad stuff over in Dublin.

Now, if they had wanted to get the fullest possible evidentiary investigation of the ultra vires charges, what they should have done was file a motion for a declaratory ruling with the Commission.

That’s an adjudicatory proceeding.

There would have been an ALJ appointed by the Commission.

He could have investigated the entire question.

He could have taken evidence, heard witnesses, and all the rest of it.

They went into a notice and comment proceeding instead.

That was their fault.

They had within the FCC a mechanism to have a full flushing out of what happened at those European meetings.

Thurgood Marshall:

It’s sort of one-sided, though, isn’t it?

Albert G. Lauber, Jr.:

Well, no more one-sided than a contested radio broadcast–

Thurgood Marshall:

It’s more one-sided than a courtroom.

Albert G. Lauber, Jr.:

–Well, I wouldn’t agree with that, Justice Marshall.

I mean–

Thurgood Marshall:

Well, which one-sided court are you talking about?

[Laughter]

Albert G. Lauber, Jr.:

–What I’m saying is, in any kind of contested–

Thurgood Marshall:

I don’t think you realize what you said.

Albert G. Lauber, Jr.:

–True, the opponent in the proceeding would be the FCC, not a competitor.

But I think they could have hoped to get fair relief within the Commission, subject to review by the Court of Appeals.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.