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Tuesday, November 20, 2012

Eleventh Circuit Affirms District Court's Determination on Jurisdiction to Challenge to FCC Rule

11thCircuitSealMartha Self entered into a contract for cell phone service with AT&T in 1995.  AT&T subsequently notified her that, beginning in January 1998 she would be subject to a Universal Service Support charge, which consisted of charges under a Federal Communications Commission (FCC) Universal Service Order that AT&T passed on to its customers. Displeased with the new charges, Self filed a putative class action, alleging breach of contract, unjust enrichment and (in the Fifth Amended Complaint) violations of federal statutory law, in Alabama state court,which AT&T removed to federal court.  

At that point, the case went dormant for nearly a decade as the federal court system awaited resolution of disputes between the FCC and AT&T.  Eventually, in Texas Office of Public Utility Council v. FCC, the Fifth Circuit determined that the FCC Universal Service Fund (USF) inappropriately included fees for intrastate revenues.  However, the court's ruling did not call for refunds of payments that carriers had already paid into the USF.  Between January 1, 1998 and November 1, 1999, the FCC collected $1.6 billion in USF fees.  It ceased collecting such funds after the Texas Office opinion went into effect, but it did not refund any part of the money previously collected and found improper in Texas Office.  AT&T petitioned the FCC seeking a refund of that money, and it 2008, the FCC issued a Final Order declining to refund the money, apparently because the carriers had been permitted to pass the costs on to consumers and recovery of those costs was no longer feasible. 

The issue before the Eleventh Circuit in Self v. Bell South Mobility was whether the District Court had jursidiction over Self's various claims in light of Texas Office and the 2008 Final Order.  The District Court held that it did not, to the extent that Self sought retroactive application of Texas Office -- that is, to the extent that Self sought to recover her portion of fees paid in to the USF in 1998 and 1999.  The basis for that decision is 28 U.S.C. § 2342, which grants to the Federal Courts of Appeal exclusive jurisdiction over challenges to FCC final orders.  The Eleventh Circuit affirmed the District Court's finding that it lacked urisdiction to review the 2008 Final Order.

Judge Carnes, who authored the opinion for the panel, begins with a Holmesian aphorism: 

[W]hen you walk up to the lion and lay hold the hide comes off and the same old donkey of a question of law is underneath.

Throughout the opinion, Judge Carnes refers to his donkey metaphor.  That aspect of the opinion is quite witty.  Judge Carnes effectively uses Justice Holmes's remark as an organizational principle to separate the complex procedural background of the case from the rather straightforward legal question presented.  Nicely done.



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