Fones4all Corp. v. Federal Communications Commission

This is a petition for review of a decision of the Federal Communications Commission (“FCC”) denying Fones4All’s petition for forbearance from the application of an FCC regulation. That regulation removed any requirement that incumbent local exchange carriers (“ILECs”) provide unbundled services to competitive local exchange carriers (“CLECs”), like the petitioner, Fones4All. The principal issue for us to resolve relates, not to the merits of the regulation, but to Fones4Airs contention that the order denying its petition was untimely, and that the petition therefore must be “deemed granted” within the provisions of the Telecommunications Act of 1996. See 47 U.S.C. § 160 (c).

The timeliness issue involves the practice of the FCC of announcing a decision on the last possible day and then “backdating” the later explanation for that decision to the date on which it was announced. We join the D.C. Circuit in holding that a challenge to the practice is not properly before us because it was never raised before the FCC and, therefore, administrative remedies were not exhausted. See 47 U.S.C. § 405 ; In re Core Commc’ns, 455 F.3d 267 (D.C.Cir.2006); Qwest Corp. v. FCC, 482 F.3d 471…