IV. PROCEDURAL ISSUES

Section 271(d) delineates the procedural framework governing the Commission's evaluation and disposition of BOC interLATA applications. It fixes the time frame within which the Commission must act, identifies the government agencies with which it must consult, and adumbrates the sort of order the Commission must issue. As was the case with section 271(c), however, the statutory text does not furnish definitive answers to a number of important questions -- notably, the scope and effect of the Commission's consultation with the DOJ and State public utility commissions and the scope of review.

A. Consultation with State Regulatory Commissions

Section 271(d)(2)(B) provides that before the Commission may act on a BOC's interLATA application, it "shall consult with the State commission of any State that is the subject of the application in order to verify the compliance of the [BOC] with the requirements of subsection (c)."⁽³⁴¹⁾ It cannot be said that the State commission's task is limited to factfinding;⁽³⁴²⁾ in order to assess whether a BOC has complied with "the requirements of section (c)," the State commission must form some opinion of the legal standards that must be satisfied.

At the same time, and in sharp contrast to the Act's provision concerning the Commission's consultation with the DOJ, section 271(d)(2)(B) does not require the Commission to accord any weight to the State commission's findings, whether factual or legal. The Commission must consult with the State commission "in order to verify" the BOC's compliance with section (c). Although the State commission advises, however, the task of verification is plainly the Commission's alone. In allocating decisionmaking authority in this fashion, Congress abandoned the approach taken by the House of Representatives in H.R. 1555, which had charged State commissions with certifying a BOC's compliance with the competitive checklist and made the State's findings binding on the Commission in most instances.⁽³⁴³⁾

Although section 271(d) does not oblige the Commission to defer to a State commission's findings of fact, sound administrative practice and Federal/State comity counsel against relegating States to a purely advisory role. Given the tight timetable that the Act establishes for considering a BOC's application, and the likelihood that there will be multiple applications pending before the Commission at any one time, the Commission may be hard pressed to resolve the myriad factual issues raised by the typical BOC application within the brief time allowed if it does not take advantage of the resources and expertise of State commissions. Additionally, because State commissions will be more familiar than the Commission with local competitive conditions and will have reviewed and, in many instances, arbitrated interconnection agreements between a BOC and potential competitors, State commissions should be well- positioned to assist the Commission in determining whether a BOC has complied with its obligations under section 271(c).⁽³⁴⁴⁾

For these reasons, in determining whether a BOC has satisfied the requirements of Section 271(c), the Commission should respect the factual findings of the State commissions with which it is legally obligated to consult.⁽³⁴⁵⁾ A reasonable approach would be for the Commission to accord State commissions the same degree of deference that Federal courts must give to the factual findings of state administrative agencies. The Supreme Court has articulated that standard as follows:

when a state agency "acting in a judicial capacity

. . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate," federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts.⁽³⁴⁶⁾

The court has also stated that the suitability of "administrative estoppel" may vary from case to case "according to the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures."⁽³⁴⁷⁾

Thus, before deferring to the factual determinations of a State commission, the Commission should satisfy itself that (1) the State commission has the authority to act,⁽³⁴⁸⁾ (2) the procedures employed by the State commission to "resolve disputed issues of fact" have given interested parties "an adequate opportunity to litigate" their claims, and (3) State courts would be bound to accept the facts as found by the State commission.⁽³⁴⁹⁾ With respect to the second requirement, the obligation to "act[] in a judicial capacity" suggests that a State commission must, at a minimum, conduct an adjudicatory hearing. Moreover, the case law indicates that such hearing must also include rigorous procedural safeguards to ensure that each party has an opportunity to make its case.⁽³⁵⁰⁾

A fair process may not guarantee a reasonable decision on the merits, however. Procedures that allow the contending parties to present their cases fairly and completely will amount to nothing if the decisionmaker selectively reviews evidence gathered to substantiate a predetermined outcome, whether for or against the petitioning BOC. In this regard, opponents of BellSouth's interLATA application for South Carolina allege that the State public service commission adopted almost without change a proposed order submitted by BellSouth and ignored evidence unfavorable to BellSouth's application.⁽³⁵¹⁾ If those assertions are true, the State commission's order merits little, if any, deference. As a general rule, the Commission should not give weight to a State commission's decision concerning a section 271 application unless the Commission assures itself that the State agency not only employed procedures that permit full discussion of the underlying issues, but also conducted a searching and independent examination of the record developed.

B. Consultation with the DOJ

Section 271(d)(2)(A) of the Act requires the Commission to notify the Attorney General (AG) of any BOC interLATA application, to consult with the AG about that application, and to include any DOJ comments in the Commission's record of its decision. The Act also directs the DOJ to provide the Commission with "an evaluation of the [BOC's] evaluation using any standard the Attorney General considers appropriate." Finally, the Commission must give substantial weight, though not preclusive effect to the DOJ's evaluation.

1. Scope of DOJ Review

The question of the DOJ's proper role in the Commission's review of a BOC interLATA application pervaded the congressional debates over telecommunications reform legislation. The language of section 271(d)(2)(A) represents the culmination of repeated and bipartisan efforts by many Members of Congress to increase the DOJ's role beyond that contemplated in either S. 652 or H.R. 1555. That language demonstrates that they were at least partially successful. On its face, Section 271(d)(2)(A) creates an important and expansive role for the DOJ in the Commission's review of a BOC's application.

BOCs, however, contend that the DOJ's participation is circumscribed in important respects. BellSouth claims, for example, that the DOJ's role "is limited to an analysis of the impact of BOC competitive entry into the in-region, interLATA market."⁽³⁵²⁾ The Commission properly rejected that argument.⁽³⁵³⁾ As BellSouth concedes, Congress intended the DOJ to conduct a "substantial competition-oriented analysis" of a BOC's interLATA application.⁽³⁵⁴⁾ There is nothing in the text of the Act or in the legislative history to suggest that the DOJ's examination must be limited to the interLATA market. As discussed above, Congress was principally concerned about the effects of BOC interLATA entry on the introduction and growth of competition in local -- as opposed to interLATA -- markets.⁽³⁵⁵⁾ It is therefore difficult to believe that Congress would then have excluded local markets from the DOJ's competition analysis.

The legislative history confirms that Congress did not restrict the DOJ's review to interLATA markets. During the debate on the conference agreement, Senator Dorgan noted that "[t]here will now be a strong role for the Justice Department in evaluating competition in local exchanges before allowing the [BOCs] to go out and compete in long distance service."⁽³⁵⁶⁾ Senator Kerrey stated that approval of a BOC's interLATA application:

requires an FCC finding that such entry is in the public interest, and that a facilities-based competitor is present. On both of these issues, the DOJ's expertise in telecommunications and competitive issues generally should be of great value to the FCC.⁽³⁵⁷⁾

In contrast, there is nothing in the legislative history to support BellSouth claim that DOJ's may only consider effects of BOC entry on interLATA markets.⁽³⁵⁸⁾

Both BellSouth and SBC allege that Congress restricted the DOJ's participation in the Commission's review of BOC application to consideration of antitrust issues.⁽³⁵⁹⁾ As a result, they conclude that the DOJ has nothing to contribute to the question of whether a BOC has complied with the competitive checklist.⁽³⁶⁰⁾ But, as the Commission determined, it is not at all clear that Congress confined the DOJ to an antitrust review of BOC applications.⁽³⁶¹⁾ Although one can easily cull statements to that effect from the congressional debates,⁽³⁶²⁾ the statute plainly says that DOJ may use "any standard the Attorney General considers appropriate."⁽³⁶³⁾

That that standard gives the DOJ considerable latitude is reinforced by a comparison of section 271(d)(2)(A) with the parallel language of the House and Senate bills. H.R. 1555, as passed by the House, required DOJ to evaluate "whether there is a dangerous probability that the [BOC] or its affiliates would successfully use market power to substantially impede competition" in the interLATA market -- clearly an antitrust-type analysis.⁽³⁶⁴⁾ As adopted by the Senate, S. 652 directed DOJ to apply "any appropriate standard," thereby at least permitting an inference that the Senate meant for an antitrust agency to employ an antitrust standard.⁽³⁶⁵⁾ Congress' retreat from these formulations to the open-ended language that appears in section 271(c)(2)(A) defeats the claim that the latter provision restricts the DOJ to an antitrust examination of BOC applications.

2. According "Substantial Weight" to the DOJ's Views

Although Congress required the Commission to give substantial weight to the DOJ's evaluation of a BOC's application, it gave no clear guidance about how that standard should be applied in practice.⁽³⁶⁶⁾ The statute merely recites the phrase with the added caveat that the Commission may not give preclusive effect to the DOJ's conclusions. The conference report is silent on the matter and the legislative history is only slightly more illuminating.⁽³⁶⁷⁾ Representative Goodlatte, a member both of the House Judiciary Committee and the conference committee, emphasized the limitations of the statutory standard: "the FCC is free to give substantial weight -- indeed greater weight if justified by the proffer -- to the evidence offered by the applicant [BOC]."⁽³⁶⁸⁾ Representative Sensenbrenner, on the other hand, suggested that the Commission had considerably less freedom to reject the DOJ's conclusions and recommendations:

In those instances when the cumulative effect of all other factors clearly and significantly outweighs the Justice Department's competitive concerns, the FCC should not be precluded from acting accordingly. However, I expect that the FCC will not take actions that, in the Justice Department's view, would be harmful to competition.⁽³⁶⁹⁾

Senator Thurmond also addressed the standard at some length, but he was primarily concerned with consideration of DOJ's views on appeal of an FCC decision:

The substantial weight requirement will also ensure that the expertise of the Antitrust Division will be brought to bear in any appeal of a decision made on long distance entry. If the FCC rejects the Antitrust Division's recommendation, the court must look to the weight the FCC accorded the Attorney General's evaluation in ascertaining whether the FCC correctly followed the law.

Review of this legal requirement should be governed by the standard that generally applies to questions of law. As a practical matter, this legal requirement ensures that the reviewing court will consider the Antitrust Division's position on the merits -- and will assess for itself the views and evidence put forward in support of that position -- and will not discount that position out of customary judicial deference to the FCC's decision.⁽³⁷⁰⁾

That very day, on the other side of the Capitol, Representative Goodlatte, took the opposite position:

[The substantial weight] provision is also not intended to give the views of the Attorney General any special weight or entitle them to any special deference upon judicial review of an FCC decision under [section 271]. . . . The courts will accord that FCC determination "full Chevron deference."⁽³⁷¹⁾

Although it is difficult to conclude anything definitive from the available evidence, one can reasonably construe the substantial weight requirement as declaring Congress' intent that DOJ's conclusions are sufficient to provide a prima facie support for any Commission decision under section 271. If DOJ concluded that a BOC's interLATA entry would harm competition in local or interLATA markets, a Commission decision to that effect should withstand appeal. If the Commission chooses not to follow a DOJ recommendation either for or against entry, it would need to justify that decision by citing clear and significant evidence to the contrary in the record.

C. Appellate Review

Because section 271 establishes no procedures governing appeals of a Commission decision on a BOC's interLATA application, any such appeal will be subject to the terms of the Administrative Procedure Act (APA).⁽³⁷²⁾ Section 10 of the APA states that, in most instances, a "court must uphold a federal agency's action unless it is 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.'"⁽³⁷³⁾ Court review under the more stringent "substantial evidence" test occurs only when a Federal agency issues a decision after an adjudicatory hearing⁽³⁷⁴⁾ or if the governing statute requires the agency to conduct a rulemaking "on the record."⁽³⁷⁵⁾

Section 271 does not require the Commission to hold an adjudicatory hearing on the BOCs' interLATA application and the Commission has decided not to hold one its own motion.⁽³⁷⁶⁾ Similarly, the 1996 Act does not direct the Commission to conduct its review of a BOC's application "on the record." Indeed, in fashioning the final version of section 271(d), the conference committee rejected language in S. 652 that commanded the Commission to grant or deny a BOC application "on the record after a hearing an opportunity for comment."⁽³⁷⁷⁾ The Senate bill would also have required the Commission's order to based "on substantial evidence on the record as a whole."⁽³⁷⁸⁾

Thus, the APA's arbitrary and capricious standard -- rather than its substantial evidence test -- will control an appellate court's review of a Commission order disposing of a BOC's interLATA application. Although some recent court decision's have conflated the two standards,⁽³⁷⁹⁾ it is generally thought that the former is a less exacting standard of review.⁽³⁸⁰⁾ Although the court's inquiry under the arbitrary and capricious test "is to be searching and careful, the ultimate standard of review is a narrow one."⁽³⁸¹⁾ In particular, "[t]he court is not empowered to substitute its judgment for that of the agency."⁽³⁸²⁾

Furthermore, where the meaning of the statute is unclear, the reviewing court should defer to the construction given by the Commission, the agency charged by Congress to implement the statutory scheme that Congress adopted.⁽³⁸³⁾ "[I]f the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute."⁽³⁸⁴⁾ The court's task is to determine whether the agency's interpretation is a reasonable one and, again, the court "may not substitute its own construction . . . for a reasonable interpretation made by the agency."⁽³⁸⁵⁾

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341. 47 U.S.C. § 271(d)(2)(B). Because the statute refers to the requirements of section (c), the Federal/State consultation must address both checklist issues (subsection (c)(2)) and the facilities-based competitor requirement (subsection (c)(1)). Thus, the Commission erred when it concluded that the checklist "is the one subject on which the Commission is required to consult with the state commissions." Ameritech Order, supra note 12, ¶ 34.

342. See Reply of Sprint Communication Company L.P. at 3 (filed May 27, 1997) ("specific task set out for the states is one of factfinding").

343. H.R. 1555, 104th Cong., 1st Sess. § 101(a) (1995) (adding new sections 245(b)(1) and 245(c)(1), (2) to the Communications Act of 1934), reprinted at 141 Cong. Rec. H9980, H9981 (daily ed. Oct. 12, 1995). Under the House bill, the Commission could conduct a de novo review of the State commission's certification "only if a State commission lacks, under relevant State law, the jurisdiction or authority to make the required certification, fails to act within ninety (90) days of receiving a BOC request for certification, or has attempted to impose a term or condition that exceeds its authority." House Report, supra note 50, at 78, 1996 U.S.C.C.A.N. at 44.

The Senate bill did not create any role for the States in the Commission's review of BOC interLATA applications. See S. 652, 104th Cong., 1st Sess. § 221(a) (1995) (adding a new section 255(c)(2)(A) to the Communications Act of 1934), reprinted at 141 Cong. Rec. H9966 (daily ed. Oct. 12, 1995).

344. See SBC Oklahoma Reply, supra note 101, at ii-iii.

345. There is less reason for the Commission to defer to a State commission's views on the legal requirements of section 271(c). The Commission is arguably under no legal obligation to do. Cf. Orthopaedic Hosp. v. Belshe, 103 F.3d 1491, 1495 (9th Cir. 1997) (Federal courts do not need to afford state agency's interpretation of a Federal statute the same deference that courts must give to construction of the same law by the Federal administrative agency charged with its implementation and enforcement). Accord AMISUB (PSL), Inc. v. Colorado Dept. of Social Serv., 879 F.2d 789, 795-96 (10th Cir. 1989), cert. denied, 496 U.S. 935 (1990); Turner v. Perales, 869 F.2d 140, 141 (2d Cir. 1989).

Further, while State commissions can contribute much to the Commission's assessment of the factual questions presented by section 271 applications, they have no special expertise concerning the interpretation of a Federal statute. Finally, whereas the same factual issues (e.g., checklist compliance) will tend to recur with each BOC application (because the underlying facts themselves will generally differ), the doctrine of stare decisis will ensure that the same will not be true of legal questions. As a result, legal issues should not impose the sort of demands on the Commission's time and resources that militate in favor of close Federal/State cooperation to resolve factual questions.

The Commission should also not be bound in any respect by a State commission's conclusions as to whether grant of a BOC's application will or will not be in the public interest. As noted, section 271(d)(2) only mandates Federal/State consultations concerning the requirements of section (c). The public interest test is contained in section 271(d)(3).

346. University of Tennessee v. Elliott, 478 U.S. 788, 799 (1986) (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)).

347. Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 110 (1991).

348. In the SBC proceeding, for example, the Oklahoma Attorney General claimed that it, and not the Oklahoma Corporation Commission, was "the only state entity that is statutorily authorized and obligated to represent the collective interests of all Oklahoma consumers of regulated telecommunications services in any 'state or federal judicial or administrative proceeding.'" Comments of the Oklahoma Attorney General Regarding the Issues raised in ALTS' Motion to Dismiss at 2 (filed Apr. 28, 1997). If true, the doctrine of administrative estoppel would not have obliged the Commission to respect the State commission's factual determinations.

349. The Commission has decided to adopt a variant of this approach, which links the degree of deference afforded to the factfinding procedures that a State commission employs:

The Commission, therefore, has discretion in each section 271 proceeding to determine what deference the Commission should accord to the state commission's verification in light of the nature and extent of state proceedings to develop a complete record concerning the applicant's compliance with section 271 and the status of local competition. We will consider carefully state determinations of fact that are supported by a detailed and extensive record, and believe the development of such a record to be of great importance to our review of section 271 applications.

Ameritech Order, supra note 12, ¶ 30.

350. See, e.g., Plough v. West Des Moines Community School Dist., 70 F.3d 512, 515 n.8 (8th Cir. 1995) (administrative estoppel applied when agency conducted a two-day evidentiary hearing that was adversarial and adjudicative in nature; allowed parties to call witnesses, to testify under oath, and to cross-examine); Kleenwell Biohazard Waste and Gen. Ecology Consultants, Inc. v. Nelson, 48 F.3d 391, 394-395 (9th Cir. 1995) (administrative estoppel applied to factual findings of Washington regulatory commission after it held an adjudicatory hearing in accordance with the State's Administrative Procedure Act; gave proper notice and opportunity to be heard; accepted briefs and exhibits; allowed both direct and cross-examination; and heard evidentiary objections).

If multiple State agencies should consider a particular BOC application, the amount of deference that the Commission affords to their factual findings should depend on the degree of agreement as to the facts found and the conclusions to be drawn from those facts. In Oklahoma, for example, although the State commission decided by a 2-1 vote that SBC had satisfied the competitive checklist, the Administrative Law Judge who held hearings on SBC's applications concluded otherwise. See Comments of the Oklahoma Corporation Commission on the Application of SBC Communications Inc., Southwestern Bell Telephone Company and Southwestern Bell Long Distance for Provision of In-Region InterLATA Services in Oklahoma at 3 (filed May 1, 1997). Indeed, of the Oklahoma officials that considered SBC's application, the two-man majority of the Corporation Commission appears to have been alone in its conclusion that SBC had satisfied the checklist. DOJ Oklahoma Evaluation, supra note 188, at 25-26.

351. See, e.g., Comments of AT&T Corp. in Opposition to BellSouth's Section 271 Application for South Carolina at 47-48, Application by BellSouth Corporation, BellSouth Telecommunications, Inc. and BellSouth Long Distance, Inc. for Provision of In-Region, InterLATA Services in South Carolina, CC Docket No. 97-208 (filed Oct. 20, 1997); Comments of MCI Telecommunications Corporation at 9-10, Application by BellSouth Corporation, BellSouth Telecommunications, Inc. and BellSouth Long Distance, Inc. for Provision of In-Region, InterLATA Services in South Carolina, CC Docket No. 97-208 (filed Oct. 20, 1997).

352. BellSouth Oklahoma Reply, supra note 272, at 2.

353. Ameritech Order, supra note 12, ¶ 37.

354. BellSouth Oklahoma Reply, supra note 272, at 2-3 n.1 (quoting with approval DOJ Oklahoma Evaluation, supra note 188, at 8, 37, 39 n.46).

355. See supra notes 263-267 and accompanying text.

356. 142 Cong. Rec. S690 (daily ed. Feb. 1, 1996).

357. Id. at S698 (daily ed. Feb. 1, 1996).

358. The statements that BellSouth cites indicate only that some in Congress wanted DOJ to conduct an "antitrust" review of a BOC's application. BellSouth Oklahoma Reply, supra note 272, at 3 and n.3 (referencing remarks by Representatives Sensenbrenner and Hyde). The statements contain nothing to suggest that such antitrust review must be limited to only one of the markets implicated by a BOC's application -- interLATA services.

359. Id. at 3-4; SBC Oklahoma Reply, supra note 101, at 14.

360. BellSouth Oklahoma Reply, supra note 272, at 6-7; SBC Oklahoma Reply, supra note 101, at 14-15 (suggesting that issues of checklist compliance are "outside" the DOJ's "area of specialized knowledge"). The notion that the DOJ is "quite obviously ill suited to play the role of evaluating compliance with the checklist" or is "beyond its expertise when assessing the details of network operations," BellSouth Oklahoma Reply, supra note 272, at 7, is fatuous. In fact, the DOJ has spent at least two decades learning the intricacies of telephone operations, first to litigate the AT&T antitrust case, then to draft, implement, and enforce the consent decree that terminated that litigation. During that time, the agency has likely acquired considerable knowledge and expertise about network operations and the sorts of access and interconnection arrangements that could foster local telephone competition. While the DOJ's views may not represent the final word on any question, they are, at a minimum, deserving of respect.

BellSouth's statement that DOJ's views on the legal interpretation of section 271 "are no more important than anyone else's" is likewise without merits. Id. at 5. Because DOJ is the Federal agency responsible for enforcing the nation's laws, it probably has developed some facility for construing the statutes it is charged with enforcing. More importantly, DOJ was actively involved, on behalf of the Administration, in the congressional debates, deliberations, and negotiations on the 1996 Act. As such, it arguably is more qualified than most to assist the Commission in determining what that statute means.

361. Ameritech Order, supra note 12, ¶¶ 38-39.

362. See, e.g., 142 Cong. Rec. H1175 (daily ed. Feb. 1, 1996) (statement of Rep. Goodlatte) (DOJ "may submit an evaluation to the FCC using any antitrust standard that the Attorney General believes the FCC should consider"); id. at H1157 (daily ed. Feb. 1, 1996) (statement of Rep. Hyde) (DOJ "will apply any antitrust standard it considers appropriate").

363. 47 U.S.C. § 271(d)(2)(A) (emphasis added). BellSouth correctly cites the conference report as indicating that DOJ can employ the "dangerous probability" or "substantial possibility" tests, which are indeed antitrust standards. BellSouth Oklahoma Reply, supra note 272, at 3 (citing Conference Report, supra note 2, at 149, 1996 U.S.C.C.A.N. at 161). It neglects to mention, however, that the report then repeats the "any standard" verbiage that appears in the statute. See Ameritech Order, supra note 12, ¶ 39.

364. H.R. 1555, 104th Cong., 1st Sess. § 101(a) (1995) (adding a new section 245(c)(3) to the Communications Act of 1934), reprinted at 141 Cong. Rec. H9981 (daily ed. Oct. 12, 1995).

365. S. 652, 104th Cong., 1st Sess. § 221(a) (1995) (adding new section 255(c)(2)(A) to the Communications Act of 1934), reprinted at 141 Cong. Rec. H9966 (daily ed. Oct. 12, 1995).

366. BellSouth asserts that the Commission must give substantial weight "only to an evaluation grounded in the DOJ's expertise in antitrust matters." BellSouth Oklahoma Reply, supra note 272, at 3. However, the statute plainly instructs DOJ to evaluate a BOC application using "any standard the Attorney General considers appropriate," even non-antitrust standards. The Commission must then give substantial weight to that evaluation and, implicitly, the standard on which the evaluation is based. Further, as the Commission observed, while Congress limited State commissions to addressing the requirements of section (c), it imposed no such constraints on the DOJ. Ameritech Order, supra note 12, ¶ 37. Thus, while some statements can be found suggesting that substantial weight should be accorded only to DOJ's antitrust conclusions, see 142 Cong. Rec. H1178 (daily ed. Feb. 1, 1996) (statement of Rep. Sensenbrenner), the weight of the evidence indicates that the Commission's reliance on DOJ's may extend further. See, e.g., id. at S711 (daily ed. Feb. 1, 1996) (statement of Sen. Thurmond) ("[t]hrough its work investigating the telecommunications industry and enforcing the MFJ, [DOJ] has accumulated important knowledge, evidence, and experience that can be constructively brought to bear on these evaluations"); id. at S698 (daily ed. Feb. 1, 1996) (statement of Sen. Kerrey) ("DOJ's expertise in telecommunications and competitive issues generally should be of great value to the FCC"); id. at H1175 (daily ed. Feb. 1, 1996) (statement of Rep. Goodlatte) (indicating that Commission must give substantial weight to DOJ's "conclusions and . . . recommendations concerning public interest, convenience and necessity or concerning competitive issues").

367. Because the substantial weight standard did not appear until the conference committee's deliberations, evidence as to its meaning can only be gleaned from the statute itself, the conference report, or the congressional debates on the conference agreement. In the latter debates, most of the congressmen who addressed the issue simply restated the standard or indicated how its inclusion strengthened the DOJ's role in the section 271 process.

368. 142 Cong. Rec. H1175 (daily ed. Feb. 1, 1996).

369. Id. at H1178 (daily ed. Feb. 1, 1996).

370. Id. at S711 (daily ed. Feb. 1, 1996). See also id. at H1171 (daily ed. Feb. 1, 1996) (statement of Rep. Conyers) ("final conference agreement therefore ensures that the Justice Department's views will be given serious substantive merits by the courts of appeal as well as the FCC").

371. Id. at H1175 (daily ed. Feb. 1, 1996).

372. 5 U.S.C. § 551 et seq. (1994). That appeal must be filed in the United States Court of Appeals for the District of Columbia Circuit. 47 U.S.C. § 402(b)(6), (9).

373. Metropolitan Council of NAACP Branches v. FCC, 46 F.3d 1154, 1160 (D.C. Cir 1995).

374. See 5 U.S.C. §§ 556, 557 (1994).

375. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 414 (1971).

376. In the absence of a specific statutory mandate, Federal agencies have broad discretion to choose the procedures they will use. See Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 524 (1978) ("[a]gencies are free to grant additional procedural rights in the exercise of their discretion, but reviewing courts are generally not free to impose them if the agencies have not chosen to grant them").

377. S. 652, 104th Cong., 1st Sess. § 221(a) (1995) (adding new section 255(c)(2)(A) to the Communications Act of 1934), reprinted at 141 Cong. Rec. H9966 (daily ed. Oct. 12, 1995).

378. Senate Report, supra note 218, at 44.

379. See, e.g., Kisser v.Cisneros, 14 F.3d 615, 619 (D.C. Cir 1994) (under arbitrary and capricious standard, court "must determine whether the agency has articulated 'a rational connection between the facts found and the choice made'" (quoting Bowman Transp. v. Arkansas-Best Freight Sys., 419 U.S. 281, 285 (1975)) and "may reverse only if the agency's decision is not supported by substantial evidence or the agency has made a clear error in judgment").

380. See, e.g., Senate Report, supra note 218, at 44; 141 Cong. Rec. S7961 (daily ed. June 8, 1995) (statement of Sen. Stevens).

381. Citizens to Preserve Overton Park, 401 U.S. at 416.

382. Id.

383. "The power of an administrative agency to administer a congressionally created and funded program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress." Morton v. Ruiz, 415 U.S. 199, 231 (1974).

384. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984) (footnote omitted).

385. Id. at 844. Section 271(d)(3) provides that the Commission "shall issue a written determination approving or denying" a BOC's interLATA application "[n]ot later than 90 days after receiving" that application. Given the many difficult and controversial issues raised by the typical BOC application, such a tight deadline might be at war with reasoned decisionmaking, especially with respect to the first applications. Although the Commission should obviously process each BOC application with all deliberate speed, its principal objective should be a complete and through evaluation of the application. It is worth noting, therefore, that despite the mandatory language of section 271(d)(3), the deadline specified is not inviolable. The Supreme Court has ruled that when a statute creates a seemingly mandatory schedule for agency action, but (like section 271(d)(3)) does not specify any consequence for noncompliance, the agency will not lose jurisdiction to act if it fails to meet that deadline. See Brock v. Pierce County, 476 U.S. 253, 258-266 (1986). The Commission should not hesitate to take additional time to complete its evaluation of a BOC application, if the alternative is to dismiss the application and compel the BOC to begin again, or to forego a complete, through, and sustainable review of that application.