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^;C`ddCCCdCCCCddddddddddCCdxxxsCYoxxdoxxooCCCddCddYdY8dd88Y8ddddLL8dYYYLYdYd4dddddCddddddddd8xdxdxdxdxdYxYxYxYxYC8C8C8C8dddddddddoYxddddoYdxdxdxdxdXXddxxXxdxdxXdddddddD8ddddCdddddp8pHodp8p8dxddddxLxLxddLdLdLddpHp8odddddddodpLpLpLdoddddododxCddCCCWxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxNdddCd]]ddddddFddddFCCddd88ddxxdddkddCddF"ddd9dCCxCdxdoddCdYds]xUvdYYCCCCxxxoxoYxLoYdYC8YooYdYxxdxddoYoYxxoxxxxxCdooxYxxxxCCddddxdddoooxCsdYC\   pxtll\tll@\@\`L Y3#&G\  Pu&P##Xj\  P6G;ynXP# "#Q #Xw PE37|XP# "#Q United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT m Argued April 18, 1997 Decided May 30, 1997 HNo. 961325  YH3!COMSAT Corporation,  Y13aJPetitioneră fv.  Y 3 Federal Communications Commission and United States of America,  Y 3DRespondentsă On Petition for Review of an Order of the Federal Communications Commission  Y43 """Daniel E. Troy argued the cause for petitioner, with whom Lawrence W. Secrest, III,  Y3 $C#"William B. Baker, Warren Y. Zeger, and Robert A. Mansbach were on the briefs. Richard E.  Y 3Wiley entered an appearance.  Y3 "" "C. Grey Pash, Jr., Counsel, Federal Communications Commission, argued the cause for  Y3 $#"respondent, with whom William E. Kennard, General Counsel, Daniel M. Armstrong, Associate  Y3 $v#"General Counsel, Joel I. Klein, Acting Assistant Attorney General, U.S. Department of Justice,  Y3Robert B. Nicholson and Andrea Limmer, Attorneys were on the brief.  Ys3Before: Edwards, Chief Judge, Silberman and Williams, Circuit Judges.  YG3Opinion for the Court filed by Chief Judge Edwards.  Y3 "" "Edwards, Chief Judge: Petitioner COMSAT, a common carrier offering a broad range  $2#"of satellite-based services, requests review of the Federal Communications Commission ("FCC  $!#"or the Commission") rulemaking amending its regulatory fee schedule. The FCC promulgated  $!"an amendment to the fee schedule charging COMSAT a "signatory fee" for costs allegedly  $""incurred by the agency as a result of COMSAT's status as the United States' signatory to two  $4!"international bodies, the International Telecommunications Satellite Organization and the  $""International Mobile Satellite Organization (hereinafter referred to as the "Organizations").  $y "Because we find that the FCC acted outside the scope of its statutory authority when it promulgated this amendment, we grant the petition for review.  """First, we find that the statutory language of section 9 of the Communications Act of  $$"1934, which provides that "[i]ncreases or decreases in fees made by amendments pursuant to this  $g!"paragraph shall not be subject to judicial review," 47 U.S.C.  159(b)(3) (1994), does not" )0*0*0*/"  $#"deprive this court of jurisdiction to review the Commission's action in this case. This language  $#"provides that there shall be no judicial review where the Commission has amended the statutory  $#"fee schedule pursuant to the terms of  159(b)(3). However, there is no preclusion of judicial  $""review where, as here, the Commission has acted outside the scope of its authority under   $""159(b)(3). Thus, consideration of this court's jurisdiction merges with consideration of the  $ $"question whether the Commission possessed the requisite statutory authority to charge COMSAT a signatory fee.  """Second, consistent with our finding of jurisdiction, we find that, on the merits, the  $$"Commission exceeded its statutory authority when it charged COMSAT a signatory fee. Section  $T#"159(b)(3) permits amendments to the statutory fee schedule where the "Commission determines  $""that the Schedule requires amendment to comply with the requirements of paragraph (1)(A)  $!"[which mandates that the Commission allocate fees to cover the costs of certain regulatory  $d$"activities in accord with the benefits provided to the payor and other factors that the Commission  $!#"determines are in the public interest]." 47 U.S.C.  159(b)(3). However, the next sentence of  Y 3 $"" 159(b)(3) states that, "[i]n making such amendments, the Commission shall add, delete, or  Y3 $#"reclassify services in the Schedule to reflect additions, deletions, or changes in the nature of its  Y}3 $!"services as a consequence of Commission rulemaking proceedings or changes in law." Id.  $C#"(emphasis added). This latter sentence clearly limits the Commission's authority to promulgate  $!"amendments under the first sentence. The Commission conceded at oral argument that the  $#"signatory fee was not imposed in response to any such "rulemaking proceeding[ ] or change[ ]  $""in law." Thus, the Commission had no lawful basis for its signatory fee, for it was neither  $#"authorized nor justified by  159(b)(3). Accordingly, we vacate the Commission's rule charging COMSAT signatory fees.  Y3?I. Backgroundă  Y3A. COMSAT  ""$ "COMSAT, a private corporation formed pursuant to the Communications Satellite Act  YV3 $D""of 1962, see 47 U.S.C.  70144 (1994), serves by congressional designation as the United  $ "States' sole representative and signatory to the Organizations. Both Organizations are  $h "multinational and were created pursuant to international agreements for the purpose of  $#"establishing and operating world-wide satellite communications systems. The United States is a party to both Organizations through congressionally authorized Executive Agreements.  Y 3B. The Commission's Regulatory Fee Regime  """Congress has authorized the Commission to assess and collect two types of fees:  Y#3 $"application fees, which are not at issue here, and regulatory fees. Section 9 of the  $2#"Communications Act of 1934 authorizes the Commission to collect regulatory fees "to recover  $ "the costs of ... enforcement activities, policy and rulemaking activities, user information  $""services, and international activities." 47 U.S.C.  159(a)(1) (1994). The revenues collected  $$"under this section should equal the amounts appropriated by Congress for that fiscal year for the  Y(3performance of these activities. See 47 U.S.C.  159(b)(1)(B) (1994). ")0*0*0*/"Ԍ """Congress established an initial regulatory fee schedule under section 9 which did not  $""include a charge for "signatory fees." By statute, the Commission must proportionally adjust  $#"the fee schedule to ensure that the total revenue generated by the fees satisfies the targets set by  Y3 $v#"Congress in the appropriations acts. See 47 U.S.C.  159(b)(2) (1994). Congress also gave the  $#"Commission the authority to amend the fee schedule where the "Commission determines that the  $!"Schedule requires amendment to comply with the requirements of paragraph (1)(A) [which  $e#"mandates that the Commission allocate fees to cover the costs of certain regulatory activities in  $$"accord with the benefits provided to the payor and other factors that the Commission determines  $""are in the public interest.]" 47 U.S.C.  159(b)(3). However, the statute provides that, "[i]n  $ "making such amendments, the Commission shall add, delete, or reclassify services in the  $#"Schedule to reflect additions, deletions or changes in the nature of its services as a consequence of Commission rulemaking proceedings or changes in law." 47 U.S.C.  159(b)(3).  Y 3XVC. The Commission's Decision to Charge COMSAT a "Signatory Fee"(#  """On April 15, 1996, in a notice of proposed rulemaking, the Commission proposed to  $ $"amend the regulatory fee schedule under section 9 to create a new category of fees, the so-called  Y}3 $"""signatory fee." See Assessment and Collection of Regulatory Fees for Fiscal Year 1996, 61  $ "Fed. Reg. 16,432, 16,436 (1996). The Commission explained that, in fiscal year 1995,  $!"COMSAT had not been required to pay a "geosynchronous satellite regulatory fee" for its  $""Organization satellites "because the legislative history of Section 9 states that regulatory fees  Y#3 $$ "should not be assessed upon space stations operated by international bodies." Id. The  $2#"Commission indicated that the signatory fee, thus, was being proposed as an alternative means  $g!"of recovering the regulatory costs incurred as a result of "COMSAT's participation in the  Y3[Organizations'] programs." Id.  ""7"COMSAT opposed the signatory fee proposal. It filed comments challenging the  $4!"Commission's authority to create such a signatory fee and the methodology by which the  Y3 $T#"Commission calculated the fee. See Comments of COMSAT Corporation, MD Docket No. 96 Yq3 $U""84 (Apr. 29, 1996), reprinted in J.A. 62. COMSAT argued that no change in circumstances  $""or law had occurred to trigger the Commission's authority to amend the fee schedule and that  $!"section 9, which requires the Commission "to take into account factors that are reasonably  $""related to the benefits provided to the payor of the fee by the Commission's activities ... and  $""other factors that the Commission determines are necessary in the public interest," 47 U.S.C.  $#" 159(b)(1)(A), did not authorize the Commission to create a signatory fee because the proposed  $"""fee was not "reasonably related" to "benefits" conferred on COMSAT by the Commission's  $#"activities since COMSAT's signatory status was conferred by Congress, and not by the agency.  Y!3 $!"See Comments of COMSAT Corporation, MD Docket No. 9684 (Apr. 29, 1996) at 6, 10,  Y"3 $e#"reprinted in J.A. 71, 75. COMSAT also argued that the proposed "signatory fee" could not be  $""based on the agency activities cited by the Commission, because, to the extent these activities  $""conferred any "benefits" on COMSAT, the associated regulatory costs were already recouped  $#"through the application fees and other regulatory fees that COMSAT pays to the Commission.  YL&3See id. at 14, reprinted in J.A. 79.  """The Commission rejected COMSAT's arguments in its final rule, concluding that the  Y )3 $#"signatory fee classification "fully satisfies the statutory requirements in Section 9." Assessment" )0*0*0*/"  Y3 $!#"and Collection of Regulatory Fees for Fiscal Year 1996, 61 Fed. Reg. 36,629, 36,635 (1996).  $#"The Commission said, "We also have no doubt that Comsat benefits significantly from its status  $""as signatory and the regulatory oversight that is necessitated by that status. Therefore, taking  $B$"into account these benefits, we perceive no public interest basis for relieving Comsat of the costs  Y3that the Commission incurs in regulating its activities." Id. at 36,63536 (footnote omitted).  ""Y"COMSAT paid the fees in full under protest. On September 10, 1996, COMSAT petitioned this court for review.  Y53GII. Analysisă  Y 3XVA. The Jurisdiction of this Court Under Section 9 of the Communications Act(#  "" "As with most administrative agency decisions, we start with the assumption that there is  Y 3 $2#"a "strong presumption" of reviewability. Bowen v. Michigan Academy of Family Physicians,  $E!"476 U.S. 667, 670 (1986). Under the Administrative Procedure Act, "agency actions are  $!"judicially reviewable "except to the extent that"(1) statutes preclude judicial review; or (2)  Y3 $#"agency action is committed to agency discretion by law.' " Natural Resources Defense Council,  Yl3 $4!"Inc. v. SEC, 606 F.2d 1031, 1043 (D.C. Cir. 1979) (quoting 5 U.S.C.  701(a)). Neither  $ $"exception is applicable here. As section 9 articulates standards that the Commission must follow  $""in amending the statutory fee schedule, we can quickly dispense with the second exception to  Y)3 $""the presumption of judicial reviewability. See Heckler v. Chaney, 470 U.S. 821, 830 (1985)  $w""(This exception "is applicable in those rare instances where statutes are drawn in such broad terms that in a given case there is no law to apply." (quotation omitted)).  """We also find that the first exception to the presumption of judicial reviewability is  $S$"inapplicable here, because the provision of the statute that limits judicial review is not applicable  Y3 $""to this case. See Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971)  $#"(There must be a "showing of clear and convincing evidence of a ... legislative intent to restrict  $""access to judicial review." (internal quotation omitted)). The statutory language of section 9  Y^3 $!"only provides that "[i]ncreases or decreases in fees made by amendments pursuant to this  YI3 $3""paragraph shall not be subject to judicial review." 47 U.S.C.  159(b)(3) (emphasis added).  $4!"Thus, the statute says that the courts may not review the Commission's actions where the  $ "Commission has acted within the scope of its authority under section 9. The no-review  $""provision of section 9, accordingly, merges consideration of the legality of the Commission's  $!"action with consideration of this court's jurisdiction in cases in which the challenge to the  $!"Commission's action raises the question of the Commission's authority to enact a particular  $f""amendment. Where, as here, we find that the Commission has acted outside the scope of its statutory mandate, we also find that we have jurisdiction to review the Commission's action.  """Our construction of section 9 does not strip the statute of meaning, for there are  $#"numerous amendments that could be made consonant with the terms of  159(b)(3) that would  $3""not be subject to judicial review. For example, an amendment to increase the amount of an  $4!"existing fee"for a statutorily permissible reason"would be covered by section 9. This case, however, does not present such a situation. " )0*0*0*/"Ԍ ""#!"At oral argument, counsel for the FCC suggested that the no-review provision of section  $u$"9 could be read to shield from judicial review any Commission action purportedly taken pursuant  $#"to section 9. Thus, according to counsel, the Commission could impose a tax on an unregulated  $#"railroad or a tax on an individual for eating ice cream, so long as the FCC claimed to be acting  $D""under section 9. This is a preposterous position, one that we will not countenance. As this  Y3 $""court said in Railway Labor Executives Ass'n. v. National Mediation Bd., 29 F.3d 655 (D.C.  Yx3 $""Cir. 1994) (en banc), "it goes without saying that the bald assertion of power by [an] agency  Yc3 $""cannot legitimize it." Id. at 669. "Unable to link its assertion of authority to any statutory  $!"provision, the [FCC's] position in this case amounts to the bare suggestion that it possesses  Y73 $#"plenary authority to act within a given area simply because Congress has endowed it with some  Y" 3authority to act in that area. We categorically reject that suggestion." Id. at 670.  Y 3 ""!"XVB. The Scope of the Commission's Authority to Amend the Regulatory Fee Schedule Under  W 3Section 9 of the Communications Act(#  ""!"We are faced with the simple question of whether the Commission possessed the authority  $!"to institute a signatory fee under  159(b)(3). Section 159(b)(3) permits amendments to the  $4!"regulatory fee schedule adopted by Congress where the "Commission determines that the  $!"Schedule requires amendment to comply with the requirements of paragraph (1)(A) [which  $e#"mandates that the Commission allocate fees to cover the costs of certain regulatory activities in  $$"accord with the benefits provided to the payor and other factors that the Commission determines  $#"are in the public interest]." 47 U.S.C.  159(b)(3). The next sentence of  159(b)(3), however,  Y3 $ "says that, "[i]n making such amendments, the Commission shall add, delete, or reclassify  Y3 $""services in the Schedule to reflect additions, deletions, or changes in the nature of its services  Y3 $D""as a consequence of Commission rulemaking proceedings or changes in law." Id. (emphasis  $""added). The second sentence, thus, limits the authority granted to the Commission under the  $""first sentence. The Commission may amend the fee schedule in the circumstances articulated  Y3 $#"by the first sentence only where the requirements of the second sentence are met. This is clear,  $#!"because the second sentence begins with the words "[i]n making such amendments," thus  $ "showing that the first and second sentences are not separate sources of authority for the promulgation of amendments.  """In this case, counsel for the Commission conceded at oral argument that the signatory  $C#"fee imposed on COMSAT was not charged pursuant to any rulemaking or change in law. The  $!"Commission, thus, acknowledged that, when it charged COMSAT a signatory fee, it acted  $!"outside the scope of its statutory authority to amend the fee schedule under section 9. The  $S$"Commission's amendment was neither authorized nor justified by  159(b)(3). We therefore find  $!"that the disputed fee cannot survive this petition for review; accordingly, we hold the fee  Y"3 $#"unlawful and set aside the action of the Commission. See 5 U.S.C.  706(2)(C) (The reviewing  $ $"court "shall hold unlawful and set aside agency action ... in excess of statutory jurisdiction [and] authority.").  YP&3{=III. Conclusionă  """We grant petitioner COMSAT's request for review and vacate the Commission's rule charging a signatory fee.