Fones4All Corp. v. Federal Communications Commission

Fones4All has filed a petition for rehearing and petition for rehearing en banc, suggesting there is a conflict between the opinion in this case, published at 550 F.3d 811 (9th Cir.2008), and Great Falls Community TV Cable Co. v. FCC, 416 F.2d 238 (9th Cir.1969), and Washington Utilities & Transportation Commission v. FCC, 513 F.2d 1142 (9th Cir.1975), overruled on other grounds by Nevada v. Burford, 918 F.2d 854 (9th Cir.1990).

In both of those cases, this court did in fact require the parties to exhaust their administrative remedies, as we did here. There is no direct conflict. Great Falls and Washington Utilities do contain some language suggesting that this court has discretion to refuse to defer to the Federal Communications Commission (“FCC” or “Commission”), by not requiring exhaustion, even though section 405’s exhaustion requirement is statutory. In Great Falls this court stated that “section 405 is not inflexible,” 416 F.2d at 239, but then declined to reach the merits of the petitioner’s claim because the Commission had no opportunity to consider the question the petitioner brought before the court, id. at 242-43. In Washington Utilities this court reiterated that…