WPC- 2L- ZB10m+HP LaserJet 5Si/5Si MXx  @X@Opinion Template Ana KhanAna Khan 4X0Í ÍX0Í Íҫx  @X@<  9`((Courier 10 PitchXT\  PP(9 Z 6Times New Roman RegularT\  PP(9 Z 6Times New Roman RegularRn\  PRP(9 Z 6Times New Roman RegularRXN\  PXP(9 Z 6Times New Roman RegularX[\  PP(9 Z 6Times New Roman RegularXN\  PXP(9 Z 6Times New Roman RegularXa\  PP(9 Z 6Times New Roman RegularXN\  PXP(9 Z 6Times New Roman RegularXT\  P P(9 Z 6Times New Roman RegularXN\  P XP(9 Z 6Times New Roman RegularXP X9XT\  P P(9 Z 6Times New Roman RegularT\  PP(9 Z 6Times New Roman RegularXN\  PXP(9 Z 6Times New Roman RegularXT\  PP(9 Z 6Times New Roman RegularXN\  PXP(9 Z 6Times New Roman RegularXT\  PP(Fa Z6Times New Roman RegularT\  PP(9 Z 6Times New Roman RegularT\  PP(Fa Z6Times New Roman RegularT\  PP(9 Z 6Times New Roman RegularT\  PP(Fa Z6Times New Roman RegularT\  PP(9 Z 6Times New Roman RegularT\  PP(9 Z 6Times New Roman RegularXN\  PXP(9 Z 6Times New Roman RegularXT\  PP(9 Z 6Times New Roman RegularXN\  PXP(9 Z 6Times New Roman RegularXT\  PP(9 Z 6Times New Roman RegularXN\  PXP(9 Z 6Times New Roman RegularXT\  PP(9 Z 6Times New Roman RegularXN\  PXP(9 Z 6Times New Roman RegularXT\  PP(9 Z 6Times New Roman RegularXN\  P XP(9 Z 6Times New Roman RegularXT\  P!P(9 Z 6Times New Roman RegularXN\  P"XP(9 Z 6Times New Roman RegularXT\  P#P(9 Z 6Times New Roman RegularXN\  P$XP(9 Z 6Times New Roman RegularXT\  P%P(9 Z 6Times New Roman RegularXN\  P&XP(9 Z 6Times New Roman RegularXT\  P'P(9 Z 6Times New Roman RegularXN\  P(XP(9 Z 6Times New Roman RegularXT\  P)P(9 Z 6Times New Roman RegularXN\  P*XP(9 Z 6Times New Roman RegularXT\  P+P(9 Z 6Times New Roman RegularXN\  P,XP(9 Z 6Times New Roman RegularXT\  P-P(9 Z 6Times New Roman RegularXN\  P.XP(9 Z 6Times New Roman RegularXT\  P/P(9 Z 6Times New Roman RegularXN\  P0XP(9 Z 6Times New Roman RegularXT\  P1P(9 Z 6Times New Roman RegularXN\  P2XP(9 Z 6Times New Roman RegularXT\  P3P(9 Z 6Times New Roman RegularXN\  P4XP(9 Z 6Times New Roman RegularXT\  P5P(9 Z 6Times New Roman RegularXN\  P6XP(9 Z 6Times New Roman RegularXT\  P7P(9 Z 6Times New Roman RegularXN\  P8XP(9 Z 6Times New Roman RegularXT\  P9P(9 Z 6Times New Roman RegularXN\  P:XP(9 Z 6Times New Roman RegularXT\  P;P(9 Z 6Times New Roman RegularXN\  P<XP(9 Z 6Times New Roman RegularXT\  P=P(9 Z 6Times New Roman RegularXN\  P>XP(9 Z 6Times New Roman RegularXT\  P?P(9 Z 6Times New Roman RegularXN\  P@XP(9 Z 6Times New Roman RegularX2~--3|x nx #T\  PP# ,,  H dddd 1 dddd 1   #T\  PP# d #Rn\  PRP# d FILED d #XN\  PXP# dd United States Court of Appeals Tenth Circuit  #[\  PP#AUG 18 1999#XN\  PXP# #a\  PP#PATRICK FISHER#XN\  PXP# #T\  P P#Clerk#XN\  P XP# ī ,,   & PUBLISH ă  UNITED STATES COURT OF APPEALS 8"TENTH CIRCUIT ă y ` dddy @-  -@ӑ#P X#  #T\  P P# J dTd0 m dTd0 m J 2U.S. WEST, INC.2, lll 3Petitioner3, lllv. 4FEDERAL COMMUNICATIONSCOMMISSION4, and UNITED STATES OFAMERICA, lll Respondents, AIRTOUCH COMMUNICATIONS, INC.(AIRTOUCH); SPRINT CORPORATION;AT&T CORPORATION; SBCCOMMUNICATIONS, INC. (SBC);SOUTHWESTERN BELL TELEPHONECOMPANY; PACIFIC BELL; NEVADA BELL;MCI TELECOMMUNICATIONSCORPORATION; COMPETITIVETELECOMMUNICATIONS ASSOCIATION;COMPETITION POLICY INSTITUTE;BELLSOUTH CORPORATION; FRONTIERCORPORATION, lll Intervenors55, llland INFORMATION INDUSTRY ASSOCIATION, lll Amicus Curiae. "9No. 69895186 \\ y (%dddy  ON PETITION FOR REVIEW OF AN ORDER OF THE FEDERAL COMMUNICATIONS COMMISSION77 (FCC 9827)  y  )dddy Laurence H. Tribe, Cambridge, Massachusetts (Jonathan S. Massey, Cambridge,Massachusetts; Dan L. Poole, Robert B. McKenna, and Kathryn Marie Krause,U.S. West, Inc., Washington, D.C.; Charles R. Morgan, M. Robert Sutherland,and A. Kirven Gilbert, III, BellSouth Corp., Atlanta, Georgia; James D. Ellis,Robert M. Lynch, Durward D. Dupre, Michael J. Zpevak, Robert J. Gryzmala,SBC Communications, Inc., Southwestern Bell Telephone Co., Pacific Bell,Nevada Bell, Dallas, Texas, with him on the briefs), appearing for Petitioner andIntervenors BellSouth Corp., SBC Communications, Inc., Southwestern BellTelephone Co., Pacific Bell and Nevada Bell. John E. Ingle, Deputy Associate General Counsel, Federal CommunicationsCommission, Washington, D.C. (Christopher J. Wright, General Counsel, andCarl D. Lawson, Counsel, Federal Communications Commission, Washington,D.C., and Frank Hunger, Assistant Attorney General, Mark Stern and JacobLewis, Attorneys, United States Department of Justice, Washington, D.C., withhim on the brief), appearing for Respondent. Donald B. Verrilli, Jr., Jenner & Block, Washington, D.C. (Ann M. Kappler,Elizabeth A. Cavanagh, and Elena N. Broder, Jenner & Block, Washington, D.C.; Thomas F. ONeil, III, Matthew B. Pachman, and Maria L. Woodbridge, MCITelecommunications, Inc., Washington, D.C.; Genevieve Morelli, CompetitiveTelecommunications Association, Robert J. Aamoth, Steven A. Augustino,Kelley, Frye & Warren LLP; Jay C. Keithley and Michael B. Fingerhut, SprintCorp., with him on the brief), appearing for Intervenors MCITelecommunications, Inc., Sprint Corporation and CompetitiveTelecommunications Association. Steven J. Metalitz, Smith & Metalitz, LLP, Washington, D.C., and Charlene B.Flick, Information Industry Association, Washington, D.C., filed an amicuscuriae brief on behalf of Information Industry Association. John D. Windhausen, Jr., General Counsel, Competition Policy Institute,Washington, D.C., Glenn B. Manishin, Kenneth R. Boley, and Elise P.W. Kiely,Blumenfeld & Cohen, Washington, D.C., filed a brief for Intervenor CompetitionPolicy Institute.y  dddy Before 9 TACHA 9, 10 EBEL 10, and 11 BRISCOE 11, Circuit Judges. y p"dddy TACHA , Circuit Judge. y $dddy Pursuant to 28 U.S.C.  2342(1) and 47 U.S.C.  402(a), U.S. West, Inc.petitions for review of a Federal Communication Commission ( FCC) orderrestricting the use and disclosure of and access to customer proprietary networkinformation ( CPNI). See Second Report and Order and Further Notice ofProposed Rulemaking: In the Matter of Implementation of theTelecommunications Act of 1996; Telecommunications Carriers Use ofConsumer Proprietary Network Information and Other Customer Information;Implementation of NonAccounting Safeguards of Sections 271 and 272 of theCommunications Act of 1934, as Amended, 63 Fed. Reg. 20,326 (1998) ( CPNIOrder). Petitioner argues that the regulations adopted by the CPNI Orderconstitute an arbitrary and capricious interpretation of the controlling provisionsof 47 U.S.C.  222 and are impermissible because they violate the First and FifthAmendments of the United States Constitution. The regulations requiretelecommunications companies, in most instances, to obtain affirmative approvalfrom a customer before the company can use that customers CPNI for marketingpurposes. We vacate the FCCs CPNI Order, concluding that the FCC failed to adequately consider the constitutional ramifications of the regulationsinterpreting  222 and that the regulations violate the First Amendment.  I. Introduction This case involves classic issues of separation of powers and the courtsnecessary role as guardians of constitutional interests. It is seductive for us toview this as just another case of reviewing agency action. However, this case is aharbinger of difficulties encountered in this age of exploding information, whenrights bestowed by the United States Constitution must be guarded as vigilantlyas in the days of handbills on public sidewalks. In the name of deference toagency action, important civil liberties, such as the First Amendments protectionof speech, could easily be overlooked. Policing the boundaries amongconstitutional guarantees, legislative mandates, and administrative interpretationis at the heart of our responsibility. This case highlights the importance of thatrole.  II. Background The dispute in this case involves regulations the FCC promulgated toimplement provisions of 47 U.S.C.  222, which was enacted as part of theTelecommunications Act of 1996. Section 222, entitled Privacy of customerinformation, states generally that [e]very telecommunications carrier has a dutyto protect the confidentiality of proprietary information of, and relating to . . . customers. 47 U.S.C.  222(a). To effectuate that duty,  222 placesrestrictions on the use, disclosure of, and access to certain customer information. At issue here are the FCCs regulations clarifying the privacy requirements forCPNI.Ѝ#T\  PP# The statute recognizes three types of customer information: (1) CPNI; (2)aggregate customer information; and (3) subscriber list information. The statute definesCPNI as: (A) information that relates to the quantity, technical configuration,type, destination, and amount of use of a telecommunications servicesubscribed to by any customer of a telecommunications carrier, and that ismade available to the carrier by the customer solely by virtue of the carriercustomer relationship; and (B) information contained in the bills pertaining to telephoneexchange service or telephone tool service received by a customer of acarrier; except that such term does not include subscriber list information. 47 U.S.C.  222(f)(1)(A)(B). Given the sensitive nature of some CPNI, such as when,where, and to whom a customer places calls, Congress afforded CPNI the highest levelof privacy protection under  222. By way of comparison, aggregate customerinformation is collective data that relates to a group or category of services orcustomers, from which individual customer identities and characteristics have beenremoved, id.  222(f)(2), and subscriber list information consists of the type ofinformation normally published in telephone directories, such as names, numbers,addresses and primary advertising classifications, see id.  222(f)(3). Congress affordedthese other types of customer information substantially less privacy protection under 222. See id.  222(c)(3), (e).#XN\  PXP#ѿ The central provision of  222 dealing with CPNI is  222(c)(1), whichstates: Except as required by law or with the approval of thecustomer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provisionof a telecommunications service shall only use, disclose, or permitaccess to individually identifiable customer proprietary networkinformation in its provision of (A) the telecommunication servicefrom which such information is derived, or (B) services necessary to,or used in, the provision of such telecommunications service,including the publishing of directories. Section 222(d) provides three additional exceptions to the CPNI privacyrequirements. Those exceptions allow a telecommunications carrier to use,disclose or permit access to CPNI: (1) to initiate, render, bill, and collect for telecommunicationsservices, (2) to protect the rights or property of the carrier, or to protect users of those services and other carriers from fraudulent, abusive,or unlawful use of, or subscription to, such services, or (3) to provide any inbound telemarketing, referral, oradministrative services to the customer for the duration of the call, ifsuch call was initiated by the customer and the customer approves ofthe use of such information to provide such service. 47 U.S.C.  222(d). Therefore, the essence of the statutory scheme requires atelecommunications carrier to obtain customer approval when it wishes to use,disclose, or permit access to CPNI in a manner not specifically allowed under 222. Section 222 is not the first time the government has placed restrictions ontelecommunications carriers use or disclosure of CPNI. Prior to the enactmentof  222, the FCC had imposed CPNI requirements on the enhanced service operations of several major telecommunications carriers. See CPNI Order  7. The FCC imposed these CPNI requirements primarily to prevent large carriersfrom gaining a competitive advantage in the unregulated enhanced servicesmarkets through the use of CPNI, thereby protecting smaller carriers. See id. Incontrast, Congress made  222, which is much broader in scope than previousCPNI requirements, applicable to all carriers, not just the dominant ones. Thissuggests that Congress enacted  222 for a substantially different purpose thanprevious FCC CPNI requirements. Faced with the new CPNI restrictions, various telecommunicationscompanies and trade associations sought FCC guidance regarding theirobligations under  222. See id.  6 & n.25. These requests, along with apetition for a declaratory ruling regarding the interpretation of the term telecommunication service under  222(c)(1), prompted the FCC to commencea rulemaking on May 17, 1996. See id.  6; In the Matter of Implementation ofthe Telecommunications Act of 1996: Telecommunication Carriers Use ofCustomer Proprietary Network Information and Other Customer Information,Notice of Proposed Rulemaking, 61 Fed. Reg. 26,483 (1996) ( CPNI NPRM). The CPNI NPRM sought comment on, among other things: (1) the scope of thephrase telecommunications service, as it is used in section 222(c)(1) . . . ; (2)the requirements for customer approval; and (3) whether the Commissions existing CPNI requirements should be amended in light of section 222. CPNIOrder  6 (citing CPNI NPRM  2033, 3842). On February 26, 1998, the FCCreleased the CPNI Order we now review. The CPNI Order addresses the meaningand scope of  222 and adopts regulations to implement the statutes CPNIrequirements. See 47 C.F.R. pt. 64, subpt. U (1998). The regulations adopted by the CPNI Order interpret  222(c)(1) through aframework known as the total service approach. That approach divides theterm telecommunications service into three service categories: (1) local; (2)interexchange (which includes most longdistance toll service); and (3)commercial mobile radio service ( CMRS) (which includes mobile or cellularservice). See 47 C.F.R.  64.2005(a). Broadly stated, the regulations permit atelecommunications carrier to use, disclose, or share CPNI for the purpose ofmarketing products within a category of service to customers, provided thecustomer already subscribes to that category of service. See id. However, thecarrier may not, without customer approval, use, disclose, or permit access toCPNI for the purpose of marketing categories of service to which the customerdoes not already subscribe. See id.  64.2005(b). Ѝ#T\  PP# The regulations treat affiliated entities of a carrier as separate for the purposes ofuse or disclosure. Thus, the regulations permit unapproved disclosure of CPNI betweenaffiliated entities of a telecommunications carrier only when the carrier provides differentcategories of service and the customer subscribes to more than one category of service. See id.  64.2005(a)(1)(2).#XN\  PXP#  For example, petitioner could use CPNI obtained through the provision of local service to market other localservice products, but not cellular services. Moreover, if the customer subscribesto both local and longdistance services, petitioner could use the CPNI to marketeither service and could exchange the CPNI between affiliates that provide suchservices, but petitioner could still not use the CPNI to market cellular services. In addition, the regulations prevent telecommunications carriers from using,without customer approval, CPNI gained from any of the three categoriesdescribed above to: (1) market customer premises equipment ( CPE) orinformation services (such as call answering, voice mail, or Internet accessservices); (2) identify or track customers that call competitors; and (3) regain thebusiness of customers who have switched to another carrier. See id. 64.2005(b)(1)(3). The regulations also set forth some additional narrowexceptions to the CPNI requirements, other than those stated in  222(d). See id. 64.2005(c). The regulations also describe the means by which a carrier must obtaincustomer approval. Section 222(c)(1) did not elaborate as to what form thatapproval should take. The FCC decided to require an optin approach, inwhich a carrier must obtain prior express approval from a customer throughwritten, oral, or electronic means before using the customers CPNI. See 47C.F.R.  64.2007(b). The government acknowledged that the means of approval could have taken numerous other forms, including an optout approach, inwhich approval would be inferred from the customercarrier relationship unlessthe customer specifically requested that his or her CPNI be restricted.  Petitioner challenges the FCCs chosen approval process, claiming itviolates the First Amendment by restricting its ability to engage in commercialspeech with customers. In addition, petitioner argues that the CPNI regulationsraise serious Fifth Amendment Takings Clause concerns because CPNI representsvaluable property that belongs to the carriers and the regulations greatly diminishits value. The respondents assert that the FCCs CPNI regulations raise noconstitutional concerns, are reasonable, and are entitled to deference under theChevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837(1984).  III. Discussion  A. Standard of Review Under the Administrative Procedure Act, we review a final FCC order todetermine whether it is arbitrary, capricious, an abuse of discretion, or otherwisenot in accordance with law, 5 U.S.C.  706(2)(A), or contrary to constitutionalright, power, privilege, or immunity, id.  706(2)(B). See Long v. Board ofGovernors of the Fed. Reserve Sys., 117 F.3d 1145, 1151 (10th Cir. 1997); Cityof Albuquerque v. Browner, 97 F.3d 415, 424 (10th Cir. 1996). In addition, when the question before us involves an agencys interpretation of a statute itadministers, we utilize the twostep approach announced in Chevron. See, e.g.,Sierra Club v. EPA, 99 F.3d 1551, 1555 (10th Cir. 1996). When Congress hasspoken to the precise question at issue, we must give effect to the express intentof Congress. See Chevron, 467 U.S. at 84243. However, if the statute is silentor ambiguous, we defer to the agencys interpretation, if it is reasonable. See id.at 84344. The agencys interpretation of the statute need not be the onlyreasonable or most reasonable interpretation, see id. at 843 n.11, but anunconstitutional interpretation is not entitled to Chevron deference. In addition, deference to an agency interpretation is inappropriate not onlywhen it is conclusively unconstitutional, but also when it raises seriousconstitutional questions. See Rust v. Sullivan, 500 U.S. 173, 19091 (1991);Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. TradesCouncil, 485 U.S. 568, 57576 (1988); #T\  PP#Williams v. Babbitt, 115 F.3d 657, 66162 (9th Cir. 1997), cert. denied sub nom. Kawerak Reindeer Herders Assn v.Williams, 118 S. Ct. 1795 (1998)#T\  PP#; #T\  PP#Chamber of Commerce of the United States v.FEC, 69 F.3d 600, 605 (D.C. Cir. 1995); Kohler Co. v. Moen Inc., 12 F.3d 632,634 n.2 (7th Cir. 1992). When faced with a statutory interpretation #T\  PP#that wouldraise serious constitutional problems, the [c]ourt[s] will construe the statute toavoid such problems unless such construction is plainly contrary to the intent of Congress. DeBartolo Corp., 485 U.S. at 575. We follow this approach becausewe assume that Congress legislates with constitutional limitations in mind andwill speak clearly when it seeks to test those limitations. See Rust, 500 U.S. at191; DeBartolo Corp., 485 U.S. at 575; Williams, 115 F.3d at 662; #T\  PP#InternationalUnion, United Auto., Aerospace & Agric. Implement Worker of Am., UAW v.OSHA, 938 F.2d 1310, 1317 (D.C. Cir. 1991) ( In effect we require a clearstatement by Congress that it intended to test the constitutional waters.). TheWilliams court aptly explained the doctrine as it applies to agencies: [J]ust as we will not infer from an ambiguous statute that Congressmeant to encroach on constitutional boundaries, we will not presumefrom ambiguous language that Congress intended to authorize anagency to do so. At the core of DeBartolo lies #T\  PP#the presumption that,if Congress means to push the constitutional envelope, it must do soexplicitly. Williams, 115 F.3d at 662. Petitioner raises First and Fifth Amendment challenges to the approvalprocedure adopted by the FCC. The parties agree that Congress did notexplicitly set forth the form of customer approval carriers must obtain. Therefore, if we determine that the FCCs customer approval rule presents aserious or grave constitutional question, we will owe the FCC no deference, evenif its CPNI regulations are otherwise reasonable, and will apply the rule ofconstitutional doubt. B. Do the CPNI regulations violate the First Amendment? Petitioner argues that the CPNI regulations interpreting 47 U.S.C.  222violate the First Amendment. The First Amendment states, Congress shall makeno law . . . abridging the freedom of speech. U.S. Const. amend. I. Althoughthe text of the First Amendment refers to legislative enactments by Congress, it isactually much broader in scope and encompasses, among other things,regulations promulgated by administrative agencies. See, e.g., Rust, 500 U.S. at192 (subjecting Department of Health and Human Services regulations limitingthe ability of Title X fund recipients to engage in abortion-related activities toreview under the First Amendment).  1. Do the CPNI regulations restrict speech? As a threshold requirement for the application of the First Amendment, thegovernment action must abridge or restrict protected speech. The governmentargues that the FCCs CPNI regulations do not violate or even infringe uponpetitioners First Amendment rights because they only prohibit it from usingCPNI to target customers and do not prevent petitioner from communicating withits customers or limit anything that it might say to them. This view isfundamentally flawed. Effective speech has two components: a speaker and anaudience. A restriction on either of these components is a restriction on speech. Cf. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 75657 (1976) (noting that the First Amendment protects thecommunication, whether the speech restriction applies to its source or impingesupon the audiences reciprocal right to receive the communication); Martin v.City of Struthers, 319 U.S. 141, 143 (1943) (noting the First Amendment embraces the right to distribute literature and necessarily protects the right toreceive it). In other words, a restriction on speech tailored to a particularaudience, targeted speech, cannot be cured simply by the fact that a speakercan speak to a larger indiscriminate audience, broadcast speech. Perhaps the Supreme Court case of Florida Bar v. Went For It, Inc., 515U.S. 618 (1995), best illustrates this. In Went For It, a lawyer referral serviceand an individual lawyer challenged a Florida Bar rule that prohibited attorneysfrom using direct mail advertisements to solicit wrongful death and personalinjury clients within thirty days of the accident or disaster causing death orinjury. See 515 U.S. at 62021. Despite the fact that the attorney couldindiscriminately mail solicitations for his services, the court found that thetargeted speech constituted commercial speech and that the restriction on thetargeted speech implicated the First Amendment. See id. at 623Ѝ #T\  PP#The court did, however, consider this fact in determining whether the speechrestriction was narrowly tailored. See id. at 63334.#XN\  PXP#; see also Fickerv. Curran, 119 F.3d 1150, 115356 (4th Cir. 1997) (applying First Amendment analysis to direct mail solicitations by attorneys to criminal and trafficdefendants); Revo v. Disciplinary Bd. of the Sup. Ct. for the State of N.M., 106F.3d 929, 93233 (10th Cir.) (determining that lawyers direct mail advertising topersonal injury victims and family members of wrongful death victimsconstituted protected commercial speech), cert. denied, 117 S. Ct. 2515 (1997). Therefore, the existence of alternative channels of communication, such asbroadcast speech, does not eliminate the fact that the CPNI regulations restrictspeech.  2. What kind of speech is restricted? Because petitioners targeted speech to its customers is for the purpose ofsoliciting those customers to purchase more or different telecommunicationsservices, it does no more than propose a commercial transaction, Virginia StateBd. of Pharmacy, 425 U.S. at 762 (quoting Pittsburgh Press Co. v. HumanRelations Commn, 413 U.S. 376, 385 (1973)). Consequently, the targetedspeech in this case fits soundly within the definition of commercial speech. Seeid.; Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 66 (1983); Cardtoons,L.C. v. Major League Baseball Players Assn, 95 F.3d 959, 970 (10th Cir. 1996);see also, e.g., Bad Frog Brewery, Inc. v. New York State Liquor Auth., 134 F.3d87, 97 (2d Cir. 1998) ( The core notion of commercial speech includes speechwhich does no more than propose a commercial transaction. (internal quotation marks and citation omitted)). It is well established that nonmisleadingcommercial speech regarding a lawful activity is a form of protected speechunder the First Amendment, although it is generally afforded less protection thannoncommercial speech. See, e.g., Went For It, 515 U.S. at 623; Central HudsonGas & Elec. Corp. v. Public Serv. Commn of N.Y., 447 U.S. 557, 56263(1980). The parties do not dispute that the commercial speech based on CPNI istruthful and nonmisleading. Therefore, the CPNI regulations implicate the FirstAmendment by restricting protected commercial speech.o Ѝ #T\  PP#Petitioner argues that because the CPNI regulations also burden its internalbusiness communications (e.g., communications between its affiliates, divisions, andemployees), we should subject the regulations to the more stringent level of FirstAmendment scrutiny applied to restrictions on noncommercial speech. Without decidingwhether the incidental burden on internal business communications necessarilyimplicates the First Amendment or whether petitioner has standing to assert such anargument, we find that, in this case, the intracarrier speech is properly categorized ascommercial speech and consequently its existence does not impact our analysis. Petitioner asserts that the intracarrier speech does not directly propose acommercial transaction to customers and therefore falls outside the definition ofcommercial speech. We disagree. Although speech that merely proposes a commercialtransaction is at the core of commercial speech, it does not constitute the universe ofcommercial speech. Indeed, the Supreme Court has defined commercial speech inbroader terms as expression related solely to the economic interests of the speaker andits audience. Central Hudson, 447 U.S. at 561. It is, admittedly, unclear to what extentCentral Hudson broadened the definition of commercial speech. As another circuitrecently stated, the Court has not offered any nuanced distinctions between the twostandards [, i.e., the Virginia Pharmacy and Central Hudson definitions], and the Courtnoted in Discovery Network that it had not utilized the broader test in its recentcommercial speech cases. Commodity Trend Serv., Inc. v. Commodity Futures TradingCommn, 149 F.3d 679, 685 (7th Cir. 1998) (citing City of Cincinnati v. DiscoveryNetwork, Inc., 507 U.S. 410, 422 (1993)). Consequently, we are hesitant to broadly expand the definition of commercial speech. However, in this case, when the solepurpose of the intracarrier speech based on CPNI is to facilitate the marketing oftelecommunications services to individual customers, we find the speech integral to andinseparable from the ultimate commercial solicitation. Therefore, the speech is properlycategorized as commercial speech. #XN\  PXP#o ֌ 3. Central Hudson analysis We analyze whether a government restriction on commercial speechviolates the First Amendment under the fourpart framework set forth in CentralHudson. First, we must conduct a threshold inquiry regarding whether thecommercial speech concerns lawful activity and is not misleading. See CentralHudson, 447 U.S. at 566. If these requirements are not met, the government mayfreely regulate the speech. See Went For It, 515 U.S. at 62324; Revo, 106 F.3dat 932. If this threshold requirement is met, the government may restrict thespeech only if it proves: (1) it has a substantial state interest in regulating thespeech, (2) the regulation directly and materially advances that interest, and (3)the regulation is no more extensive than necessary to serve the interest. Revo,106 F.3d at 932 (citing Central Hudson, 447 U.S. at 56465).$Ѝ #T\  PP#In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), the SupremeCourt established a slight modification to the Central Hudson framework by giving forceto a footnote contained in Central Hudson. Justice Stevens, writing for a four Justiceplurality, stated that when a regulation constitutes a blanket prohibition against truthful,nonmisleading speech about a lawful product and the ban serves an interest unrelated toconsumer protection, it will be subject to a heightened form of First Amendment scrutinyakin to strict scrutiny. See id. at 504 (opinion of Stevens, J.) (citing Central Hudson, 447U.S. at 566 n.9). Under such circumstances, we must review the regulation underCentral Hudson with special care, mindful that speech prohibitions of this type rarely survive constitutional review. Id. (opinion of Stevens, J.) (internal quotation marks andcitation omitted). Although only four Justices subscribed to this view, given JusticeThomas concurrence in which he stated that he would abandon Central Hudsonaltogether and apply traditional strict scrutiny under similar circumstances, see id. at 518(Thomas, J., concurring), it is the narrowest majority holding, and we are bound by it. In this case, however, the regulation at issue does not constitute a blanketprohibition of speech. Indeed, the telecommunications carriers may utilize a multitude ofcommunication channels to say whatever they want to their customers. They simplycannot use CPNI to target customers for marketing efforts. Thus, the CPNI regulationsare not subject to heightened scrutiny under 44 Liquormart. #XN\  PXP#$ As noted above, no one disputes that the commercial speech based on CPNI is truthful andnonmisleading. We therefore proceed directly to whether the government hassatisfied its burden under the remaining three prongs of the Central Hudson test.  a. Does the government have a substantial state interest in regulating speech involving CPNI? The respondents argue that the FCCs CPNI regulations advance twosubstantial state interests: protecting customer privacy and promotingcompetition. While, in the abstract, these may constitute legitimate andsubstantial interests, we have concerns about the proffered justifications in thecontext of this case. Privacy considerations of some sort clearly drove the enactment of  222. The concept of privacy, though, is multifaceted. Indeed, one can apply themoniker of a privacy interest to several understandings of privacy, such as theright to have sufficient moral freedom to exercise full individual autonomy, the right of an individual to define who he or she is by controlling access toinformation about him or herself, and the right of an individual to solitude,secrecy, and anonymity.LЍ #T\  PP#We emphasize that the privacy interest in this case is distinct and different fromthe more limited notion of a constitutional right to privacy which is addressed in casessuch as Griswold v. Connecticut, 381 U.S. 479, 48486 (1965), and Roe v. Wade, 410U.S. 113, 15256 (1973) (stating that the constitutional right to privacy covers onlypersonal rights deemed fundamental or implicit in the concept of ordered liberty(internal quotation marks and citations omitted)). Here, the question is solely whetherprivacy can constitute a substantial state interest under Central Hudson, not whether theFCC regulations impinge upon an individuals right to privacy under the Constitution.#XN\  PXP#L See Fred H. Cate, Privacy in the Information Age 1922 (1997); Joseph I. Rosenbaum, Privacy on the Internet: Whose Information IsIt Anyway?, 38 Jurimetrics J. 565, 56667 (1998). The breadth of the concept ofprivacy requires us to pay particular attention to attempts by the government toassert privacy as a substantial state interest. When faced with a constitutional challenge, the government bears theresponsibility of building a record adequate to clearly articulate and justify thestate interest. [T]he Central Hudson standard does not permit us to supplant theprecise interests put forward by the State with other suppositions. Edenfield v.Fane, 507 U.S. 761, 768 (1993). Although we agree that privacy may rise to thelevel of a substantial state interest, see, e.g., Went For It, 515 U.S. at 625 ( Ourprecedents leave no room for doubt that the protection of potential clientsprivacy is a substantial state interest (quoting Edenfield, 507 U.S. at 769)), the government cannot satisfy the second prong of the Central Hudson test by merelyasserting a broad interest in privacy. It must specify the particular notion ofprivacy and interest served. Moreover, privacy is not an absolute good because itimposes real costs on society.LЍ #T\  PP#Professor Cate lists a number of costs privacy imposes. For example, privacy facilitates the dissemination of false information, by making it more difficult forindividuals and institutions to discover falsities. Cate, supra, at 28. Privacy also protects the withholding of relevant true information, such as when an employee failsto disclose a medical condition that would affect his or her job performance. Id. Inaddition, privacy interferes with the collection, organization, and storage of informationwhich can assist businesses in making rapid, informed decisions and efficientlymarketing their products or services. In this sense, privacy may lead to reducedproductivity and higher prices for those products or services. See id. at 2829. Privacymay even threaten physical safety by interfering with the publics ability to accessinformation needed to protect themselves, such as whether an individual has a history ofchild abuse or molestation, sexual offenses, or communicable diseases. See id. at 29. Finally, privacy impedes upon individual voyeuristic curiosity which opens peopleseyes to opportunities and dangers. Id. at 2930. #XN\  P XP#L Therefore, the specific privacy interest must besubstantial, demonstrating that the state has considered the proper balancing ofthe benefits and harms of privacy. In sum, privacy may only constitute asubstantial state interest if the government specifically articulates and properlyjustifies it. In the context of a speech restriction imposed to protect privacy by keepingcertain information confidential, the government must show that thedissemination of the information desired to be kept private would inflict specificand significant harm on individuals, such as undue embarrassment or ridicule, intimidation or harassment, or misappropriation of sensitive personal informationfor the purposes of assuming anothers identity. Although we may feeluncomfortable knowing that our personal information is circulating in the world,we live in an open society where information may usually pass freely. A generallevel of discomfort from knowing that people can readily access informationabout us does not necessarily rise to the level of a substantial state interest underCentral Hudson for it is not based on an identified harm. Neither Congress nor the FCC explicitly stated what privacy harm  222seeks to protect against. The CPNI Order notes that CPNI includes informationthat is extremely personal to customers . . . such as to whom, where, and when acustomer places a call, as well as the types of service offerings to which thecustomer subscribes, CPNI Order at  2, and it summarily finds calldestinations and other details about a call . . . may be equally or more sensitive[than the content of the calls], id. at  94. The government never states itdirectly, but we infer from this thin justification that disclosure of CPNIinformation could prove embarrassing to some and that the government seeks tocombat this potential harm. We have some doubts about whether this interest, as presented, rises to thelevel of substantial. We would prefer to see a more empirical explanation andjustification for the governments asserted interest. Cf. Went For It, 515 U.S. at 630 (describing the record provided by the Bar cataloguing citizen outrage atbeing solicited just after injury or family tragedy). In addition, the authorityrelied upon by the government, Edenfield v. Fane, recognizes a states interest inprotecting against unwanted intrusions caused by solicitations, see 507 U.S. at769; see also Went For It, 515 U.S. at 625, but it says nothing about thedisclosure of allegedly sensitive information. On the other hand, we recognize the government may have a legitimate interest in helping protect certain information. Cf. Lanphere & Urbaniak v. Colorado, 21 F.3d 1508, 1514 (10thCir. 1994) (finding a substantial state interest in the need to protect the privacyof those charged with traffic offenses and DUI against dissemination of charginginformation for commercial purposes). Therefore, notwithstanding ourreservations, we assume for the sake of this appeal that the government hasasserted a substantial state interest in protecting people from the disclosure ofsensitive and potentially embarrassing personal information.xЍ In its brief and at oral argument, the FCC intimated thatconsumer privacy concerns might also encompass an interest inpreventing the customer intrusion that accompanies broad use ofCPNI for telemarketing purposes. However, this particularprivacy justification is lacking from the FCC record. In fact,the only reference to marketing intrusion into customer privacycomes in paragraph 100 of the CPNI Order in response to U.S.Wests attempts to explain why it had such difficulty obtainingauthorization to use CPNI in a telemarketing and directmailstudy it conducted. In paragraph 100, the FCC stated: [E]ven if U S WEST is correct, and customers do notgrant approval simply because they do not want to be marketed to, this finding would not support permittingnotice and optout. Indeed, it would suggest, as MCIobserves, that contrary to U S WESTs claim, customersdo not want to hear about expanding serviceofferings, and in particular do not want their CPNIused towards that end. CPNI Order  100. Such a terse statement, made only in thelimited context of refuting U.S. Wests expansive reading of itsprior market study, provides insufficient evidence that the FCCsought to promote customer privacy by limiting intrusion intocustomer households through telemarketing made possible by CPNIsharing.x֌We harbor different reservations about the governments asserted interestin competition. While we afford agencies broad deference in interpreting astatute they are charged to administer, they must obey the dictates of Congressand administer the statute true to Congress intent. See Ernst & Ernst v.Hochfelder, 425 U.S. 185, 21314 (1976). We are not satisfied that the interestin promoting competition was a significant consideration in the enactment of 222. While the broad purpose of the Telecommunications Act of 1996 is tofoster increased competition in the telecommunications industry, Ѝ #T\  P!P#The preamble to the Act states: An act to promote competition and reduceregulation in order to secure lower prices and higher quality services for Americantelecommunications consumers and encourage the rapid deployment of newtelecommunications technologies. Pub. L. No. 104104, 110 Stat. 56, 56 (1996).#XN\  P"XP#ѵ the language of 222 reveals no such concern. Ѝ #T\  P#P#While the broad purposes of an Act frequently provide useful insight into thepurposes served by a narrow provision of the Act, blind adherence to broad purposes can obfuscate Congress true intent regarding a particular provision, particularly when thatprovision has an unambiguous, specific, and dominant purpose. See Board of Governorsof the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361, 37374 (1986)( Application of broad purposes of legislation at the expense of specific provisionsignores the complexity of the problems Congress is called upon to address and thedynamics of legislative action. . . . Invocation of the plain purpose of legislation at theexpense of the terms of the statute itself takes no account of the processes of compromiseand, in the end, prevents the effectuation of congressional intent.). #XN\  P$XP# Rather, the specific and dominant purpose of  222 is the protection of customer privacy. Indeed, the FCC and members ofCongress characterize  222 as striv[ing] to balance both the competitive andconsumer privacy interests with respect to CPNI, Joint Statement of Managers,S. Conf. Rep. No. 104230, at 205 (1996) (emphasis added), which suggests that 222's purpose in fostering privacy may even run counter to the broad procompetition purpose of the Telecommunications Act. In any event, three otherconsiderations persuade us that Congress did not intend for competition to be asignificant purpose of  222. First, and most important, the plain language of thesection deals almost exclusively with privacy. Section 222 is entitled Privacy ofcustomer information and is replete with references to privacy andconfidentiality of customer information. In contrast,  222 contains no explicitmention of competition. Although  222(c)(3) and  222(e) imposenondiscrimination requirements with respect to disclosure of aggregate customerand subscriber list information which could be construed as procompetitionmeasures, we find that these do not sufficiently indicate that increasing competition was a purpose of  222. Moreover, the provisions of  222 relatingto CPNI which the challenged regulations interpret contain no reference tonondiscrimination requirements and reflect solely a concern for customerprivacy. See 47 U.S.C.  222(c)(1)(2), (d). Second,  222 differs from previousCPNI restrictions designed to foster competition because it applies to alltelecommunications carriers, not just the dominant ones. This indicates adifferent purpose for the new restriction. Finally,  222 contains measures thatwill allow full use, disclosure, and access to CPNI if customer approval isobtained. Assuming that a carrier is able to obtain a high rate of customerapproval, the alleged competitive effect of  222's CPNI restrictions is minimaland can perhaps even be nullified. Consequently, we find that Congress primarypurpose in enacting  222 was concern for customer privacy, not the broaderpurpose of increasing competition. Even though we conclude that competition did not constitute the primarypurpose of the section, we recognize that Congress may not have completelyignored competition in drafting  222. While we believe that the asserted interestin increasing competition would not suffice, by itself, to justify the FCCs rule,we will, in this case, consider it in concert with the governments interest inprotecting consumer privacy.  b. Does the Regulation Directly and Materially Advance the States Interests? Under the next prong of Central Hudson, the government must demonstrate that the harms it recites are real and that its restriction will in factalleviate them to a material degree. Edenfield v. Fane, 507 U.S. 761, 771(1993); accord Rubin v. Coors Brewing Co., 514 U.S. 476, 487 (1995). Thisburden is not satisfied by mere speculation or conjecture. Edenfield, 507 U.S.at 770. On the record before us, the government fails to meet its burden. The government presents no evidence showing the harm to either privacyor competition is real. Instead, the government relies on speculation that harm toprivacy and competition for new services will result if carriers use CPNI. InEdenfield, the Supreme Court struck down a Florida ban on CPA inpersonsolicitation because the state had presented no evidence anecdotal or empirical that such solicitation created the dangers of fraud, overreaching, orcompromised independence that the state sought to combat. See 507 U.S. at771; cf. Florida Bar v. Went For It, Inc., 515 U.S. 618, 62627 (1995) (upholdingrestriction on solicitation of accident victims within thirty days of accident, basedon twoyear study and written report analyzing statistically and anecdotally theimpacts of such solicitation). The FCC faces the same problem here. Whileprotecting against disclosure of sensitive and potentially embarrassing personalinformation may be important in the abstract, we have no indication of how it may occur in reality with respect to CPNI. Indeed, we do not even haveindication that the disclosure might actually occur. The government presents noevidence regarding how and to whom carriers would disclose CPNI. By its ownadmission, the government is not concerned about the disclosure of CPNI withina firm. See CPNI Order at  55, n.203 ( [W]e agree . . . that sharing of CPNIwithin one integrated firm does not raise significant privacy concerns becausecustomers would not be concerned with having their CPNI disclosed within afirm in order to receive increased competitive offerings.). Yet the governmenthas not explained how or why a carrier would disclose CPNI to outside parties,especially when the government claims CPNI is information that would give onefirm a competitive advantage over another. This leaves us unsure exactly whowould potentially receive the sensitive information. Similarly, the FCC can theorize that allowing existing carriers to marketnew services with CPNI will impede competition for those services, but itprovides no analysis of how or if this might actually occur. Beyond its ownspeculation, the best the government can offer is that [t]he vigor of US Westsprotests against the rules . . . indicates that US West also believes that thisrestriction will be effective in promoting Congresss competitive interest. Appellees Br. at 30. This is simply additional conjecture, and it is inadequate tojustify restrictions under the First Amendment. See Edenfield, 507 U.S. at 77071.  c. Are the CPNI regulations narrowly tailored? Even assuming, arguendo, that the state interests in privacy andcompetition are substantial and that the regulations directly and materiallyadvance those interests, we do not find, on this record, the FCC rules regardingcustomer approval properly tailored. The CPNI regulations must be no moreextensive than necessary to serve [the stated] interest[s]. Rubin, 514 U.S. at486. In order for a regulation to satisfy this final Central Hudson prong, theremust be a fit between the legislatures means and its desired objective ! a fitthat is not necessarily perfect, but reasonable; that represents not necessarily thesingle best disposition but one whose scope is in proportion to the interestserved. Board of Trustees of the State Univ. of N.Y. v. Fox, 492 U.S. 469, 480(1989) (internal quotation marks omitted). While clearly the government neednot employ the least restrictive means to accomplish its goal, it must utilize ameans that is narrowly tailored to its desired objective. Id.; Florida Bar v.Went For It, Inc., 515 U.S. 618, 632 (1995). Narrow tailoring means that thegovernments speech restriction must signify a carefu[l] calculat[ion of] thecosts and benefits associated with the burden on speech imposed by itsprohibition. Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 (1993)(internal quotation marks omitted). The availability of less burdensome alternatives to reach the stated goal signals that the fit between the legislaturesends and the means chosen to accomplish those ends may be too imprecise towithstand First Amendment scrutiny. 44 Liquormart, Inc. v. Rhode Island, 517U.S. 484, 529 (1996) (OConnor, J., concurring); see also, e.g., Went For It, 517U.S. at 632; Rubin, 514 U.S. at 49091; Discovery Network, 507 U.S. at 417n.13. This is particularly true when such alternatives are obvious and restrictsubstantially less speech. Ѝ #T\  P%P#While this pronouncement, in effect, imposes a burden on the government toconsider certain less restrictive means those that are obvious and restrict substantiallyless speech it does not amount to a least restrictive means test. We do not require thegovernment to consider every conceivable means that may restrict less speech and strikedown regulations when any less restrictive means would sufficiently serve the stateinterest. We merely recognize the reality that the existence of an obvious andsubstantially less restrictive means for advancing the desired government objectiveindicates a lack of narrow tailoring.#XN\  P&XP# See Fox, 492 U.S. at 479 ( [A]lmost all of therestrictions disallowed under Central Hudsons fourth prong have beensubstantially excessive, disregarding far less restrictive and more precisemeans. (quoting Shapero v. Kentucky Bar Assn, 486 U.S. 466, 476 (1988))). It is difficult, if not impossible, for us to conduct a full and proper narrowtailoring analysis, given the deficiencies that we have already encountered withrespect to the previous portions of the Central Hudson test. Nevertheless, on thisrecord, the FCCs failure to adequately consider an obvious and substantially lessrestrictive alternative, an optout strategy, indicates that it did not narrowly tailor the CPNI regulations regarding customer approval. The respondents argue thatthe record contains adequate support that the CPNI regulations are narrowlytailored because a study conducted by petitioner U.S. West shows that a majorityof individuals, when affirmatively asked for approval to use CPNI, refused togrant it. The U.S. West study shows that 33% of those called refused to grantapproval to use their CPNI, 28% granted such approval, and 39% either hung upor asked not to be called again. See CPNI Order  99 n.380. Additionally, U.S.West secured a 72% affirmative response rate from customers whom it solicitedafter they initiated contact with the company for some other reason.k Ѝ #T\  P'P#U.S. West also solicited approval from customers by mail. Only six to elevenpercent of residential customers and only five to nine percent of business customersresponded to the direct mail trial. See CPNI Order  99 n.378. #XN\  P(XP#k See id. 99 n.378. This study does not provide sufficient evidence that customers do notwant carriers to use their CPNI. The results may simply reflect that a substantialnumber of individuals are ambivalent or disinterested in the privacy of theirCPNI or that consumers are averse to marketing generally. The FCC stated thatthe study supported an equally plausible interpretation . . . that many customersvalue the privacy of their personal information and do not want it shared forpurposes beyond the existing service relationship. CPNI Order  100. We arenot convinced that the study supports the FCCs interpretation, and the FCCprovides no additional evidence to bolster its argument. Even assuming that telecommunications customers value the privacy ofCPNI, the FCC record does not adequately show that an optout strategy wouldnot sufficiently protect customer privacy. The respondents merely speculate thatthere are a substantial number of individuals who feel strongly about theirprivacy, yet would not bother to optout if given notice and the opportunity to doso. Such speculation hardly reflects the careful calculation of costs and benefitsthat our commercial speech jurisprudence requires. Finally, respondents assert that under FCC v. National Citizens Comm. forBroad., 436 U.S. 775 (1978), the FCC can rely upon its common sense judgmentbased on experience, notwithstanding the inclusiveness of the rulemaking record. We refuse to extend the rule announced in National Citizens in the mannerrespondents suggest. National Citizens involved agency conclusions regarding elusive concepts, not easily defined let alone measured without makingqualitative judgments, id. at 79697 (internal quotation marks omitted), andinformation that was difficult to compile. We see no such problems in this case. Furthermore, in National Citizens, the FCCs common sense judgment onlysupported a finding that it acted rationally in promulgating a rule. Id. at 796. The burden under the fourth prong of Central Hudson is significantly higher. The FCC must not only demonstrate that it acted rationally, but that it narrowlytailored its regulations to meet its stated goals. In sum, even assuming that respondents met the prior two prongs ofCentral Hudson, we conclude that based on the record before us, the agency hasfailed to satisfy its burden of showing that the customer approval regulationsrestrict no more speech than necessary to serve the asserted state interests.Ѝ#T\  P)P# We reiterate that even if the optin approach is narrowly tailored with respect toprotecting competition, the interest advanced in protecting competition here isinsufficient by itself to justify the CPNI regulations under the Central Hudson test. Seesupra Part III.B.3.a.#XN\  P*XP#ў Consequently, we find that the CPNI regulations interpreting the customerapproval requirement of 47 U.S.C.  222(c) violate the First Amendment.NЍ#T\  P+P# Because we vacate the CPNI restrictions on First Amendment grounds, we neednot address whether they have effected a taking under the Fifth Amendment orwhether they are otherwise arbitrary and capricious.#XN\  P,XP#N ÐIV. Conclusion The FCC failed to adequately consider the constitutional implications of itsCPNI regulations. Even if we accept the governments proffered interests andassume those interests are substantial, the FCC still insufficiently justified itschoice to adopt an optin regime. Consequently, its CPNI regulations must fallunder the First Amendment. At the very least, the foregoing analysis shows thatthe CPNI regulations clearly raise a serious constitutional question, invoking therule of constitutional doubt. Accordingly, we VACATE the FCCs CPNI Order and the regulations adopted therein.tЍ#T\  P-P# The dissent accuses us of advocating an optout approach. We do not advocate any specific approach. We merely find fault in the FCCs inadequateconsideration of the approval mechanism alternatives in light of the First Amendment. #XN\  P.XP#t   No. 989518, U.S. West v. FCC  BRISCOE , Circuit Judge, dissenting: I respectfully dissent. When properly considered, neither of theconstitutional challenges asserted by US West warrants setting aside the FCCsCPNI Order, which I believe represents a reasonable interpretation of 47 U.S.C.222. I would therefore deny the petition for review and affirm the CPNI Order. )I. Before addressing US Wests challenges to the CPNI Order, I begin bybriefly recounting how this dispute arose. In 1996, Congress decided to placerestrictions on the use of CPNI collected by telecommunications carriers. Inparticular, Congress chose to require carriers to obtain customer approval prior tousing, disclosing, or allowing access to individually identifiable CPNI. See 47U.S.C.  222. Following enactment of  222, the FCC received several informalrequests from members of the telecommunications industry for guidance ininterpreting the statutes customer approval requirement. The FCC responded byissuing a Notice of Proposed Rulemaking tentatively conclud[ing] . . . thatregulations interpreting and specifying in greater detail a carriers obligationsunder section 222 would be in the public interest, and seeking public commenton various aspects of  222, including the statutes customer approvalrequirement. CPNI Order, at 12. On February 26, 1998, the FCC issued its CPNI Order interpreting  222's customer approval requirements. In pertinent part, the FCC concluded  222 wasambiguous in that it did not specify what kind of approval [wa]s required to beobtained by a carrier prior to use of individually identifiable CPNI. Id. at 67. Inresolving this ambiguity, the FCC noted that interested parties (including USWest) had offer[ed] three separate views, ranging from a most restrictiveinterpretation that would require approval to be in writing, to a permissive one,where carriers merely would need to provide customers with a notice of theirintent to use CPNI, and a mechanism for customers to optout from thisproposed use (notice and optout). Id. After weighing these proffered options,the FCC adopted an optin approach whereby carriers must give customersexplicit notice of their CPNI rights prior to any solicitation for approval, andthen must obtain from the customer express written, oral, or electronic approvalfor CPNI uses. Id. at 68. Dissatisfied with the FCCs selection of the optin approach, rather thanits suggested optout approach (which is allegedly cheaper and results in a higher approval rate than the optin approach), US West filed this action challengingthe validity of the FCCs CPNI Order. In particular, US West contends theportion of the CPNI Order interpreting  222's approval requirement violates the First and Fifth Amendments of the United States Constitution.ZЍ #T\  P/P#This litigation strategy is apparently not unique to this case. In another casefiled in this circuit involving substantially different facts, US West asserted strikinglysimilar constitutional#XN\  P0XP# #T\  P1P#arguments. See U.S. West, Inc. v. Tristani, 1999 WL 462446 (10thCir. July 8, 1999) (asserting First and Fifth Amendment challenges to rate order of theNew Mexico State Corporation Commission).#XN\  P2XP#Z US West alsocontends that portion of the CPNI Order is a gratuitously severe constructionof  222. })II.  United States Courts of Appeals have been granted exclusive statutoryjurisdiction to review the FCCs final orders pursuant to 28 U.S.C.  2342(1)(1994) and 47 U.S.C.  402(a) (1994). Iowa Utilities Bd. v. FCC, 120 F.3d 753,793 (8th Cir. 1997), affd in part and revd in part, 118 S.Ct. 879 (1998). Inreviewing the CPNI Order at issue in this case, which represents the FCCsconstruction of a statute it is charged with administering, we are initially confronted with two questions. Chevron U.S.A., Inc. v. Natural ResourcesDefense Council, Inc., 467 U.S. 837, 842 (1984). First, always, is the questionwhether Congress has directly spoken to the precise question at issue. Id. Ifthe intent of Congress is clear, that is the end of the matter; for [we], as well asthe agency, must give effect to the unambiguously expressed intent of Congress. Id. at 84243. If, however, [we] determine[] Congress has not directlyaddressed the precise question at issue, [we] do[] not simply impose [our] own construction on the statute. Id. at 843. Rather, if the statute is silent orambiguous with respect to the specific issue, the question for [us] is whether theagencys answer is based on a permissible construction of the statute. Id. In my view,  222, in particular subsection (c)(1), is unambiguous in thesense that Congress made it abundantly clear it intended for telecommunicationscarriers to obtain customer approval prior to using, disclosing, or permittingaccess to individually identifiable CPNI. Although Congress did not specificallydefine the term approval in the statute, its ordinary and natural meaning clearly implies knowledge and exercise of discretion after knowledge. Blacks LawDictionary at 102 (6th ed. 1990); see United States v. Roberts, 88 F.3d 872, 877(10th Cir. 1996) (if Congress does not define statutory term, its common andordinary usage may be obtained by reference to a dictionary); United States v.Floyd, 81 F.3d 1517, 1523 (10th Cir. 1996) ( In interpreting Congressional intent, a reviewing court must determine whether the language used in a statute isambiguous, or whether it has an ordinary meaning.). In other words, it is clearfrom the statute that Congress intended for customers to make an informeddecision as to whether they would allow their individually identifiable CPNI tobe used.Ѝ #T\  P3P#US West does not deny that the statute requires it to obtain informed consentfrom each of its customers regarding their individually identifiable CPNI.#XN\  P4XP#֌The remaining issue is whether the statute indicates the precise method acarrier must use to obtain customer approval. On this point, I agree with theFCC that the statute is ambiguous. See CPNI Order at 70. Although it is clearfrom the statute that a customer must be made aware of his or her rightsregarding CPNI and be allowed to make an informed decision regarding its use,the statute is silent with respect to precisely how a carrier must obtain thisapproval from its customers. The question therefore becomes whether the FCCsconstruction of the statute (to remedy the ambiguity) is reasonable. In decidingthis question, we may not substitute [our] own construction of [the] statutoryprovision for a reasonable interpretation made by the FCC. Chevron, 467 U.S.at 844. Because the approval requirement imposed by Congress in  222 is fairlyrigorous in that it requires customer knowledge and exercise of discretion afterknowledge, the methods available for obtaining such approval were obviouslylimited. Indeed, the CPNI Order indicates interested parties proposed only threepossible methods for obtaining approval: (1) requiring express written approval,(2) requiring express written, oral, or electronic approval (the optin method), or(3) requiring only implied approval by allowing carriers to notify customers oftheir intent to use CPNI and affording customers a mechanism to optout ifthey did not want their CPNI to be used (the optout method). After quickly disposing of the most restrictive of these three options (i.e., the method requiringexpress written approval)nЍ #T\  P5P#See CPNI Order at 87 ( Given that nothing in section 222(c)(1) expresslylimits approval to only written means, we conclude that carriers should be givenflexibility to secure approval through written, oral or electronic methods.).#XN\  P6XP#n, the FCC carefully weighed the advantages anddisadvantages of the two remaining options, i.e., the optin and the optoutapproaches. CPNI Order at 6785. Ultimately, the FCC concluded the optinapproach was best suited to forwarding the purpose of the statute: We conclude . . . that an express approval mechanism is the bestmeans to implement [ 222's approval requirement] because it willminimize any unwanted or unknowing disclosure of CPNI. Inaddition, such a mechanism will limit the potential for untowardcompetitive advantages by incumbent carriers. Our conclusion isguided by the natural, common sense understanding of the term approval, which we believe generally connotes an informed anddeliberate response. An express approval best ensures such aknowing response. In contrast, under an optout approach, . . .because customers may not read their CPNI notices, there is noassurance that any implied consent would be truly informed. Weagree with the observations of MCI and Sprint that, insofar ascustomers may not actually consider CPNI notices under a noticeand optout approach, they may be unaware of the privacyprotections afforded by section 222, and may not understand thatthey must take affirmative steps to restrict access to sensitiveinformation. We therefore find it difficult to construe a customersfailure to respond to a notice as constituting an informed approval ofits contents. Accordingly, we adopt a mechanism of expressapproval because we find that it is the best means at this time toachieve the goal of ensuring informed customer approval. Id. at 7071. After reviewing the CPNI Order and the administrative record, I am convinced the FCCs interpretation of  222, more specifically its selection of theoptin method for obtaining customer approval, is entirely reasonable. Indeed,the CPNI Order makes a strong case that, of the two options seriously consideredby the FCC, the optin method is the only one that legitimately forwardsCongress goal of ensuring that customers give informed consent for use of theirindividually identifiable CPNI. Accordingly, in applying the rubric set forth inChevron, and barring any serious constitutional problems posed by the CPNIOrder, we must defer to the FCCs selection of the optin method in resolving thestatutory ambiguity presented in this case. U)III. Having concluded the CPNI Order is worthy of deference under thestandards outlined in Chevron, I now turn to the constitutional challengesasserted by US West. See Rust v. Sullivan, 500 U.S. 173, 190 (1991) (reviewingchallenged regulation under Chevron standards before addressing plaintiffsconstitutional challenges). It is true that courts need not defer to an agencysinterpretation of a federal statute if that interpretation raises seriousconstitutional questions. See DeBartolo Corp. v. Florida Gulf Coast Bldg. andConst. Trades Council, 485 U.S. 568, 574 (1988) (although NLRBsinterpretation of NLRA was normally entitled to deference, Court refused todefer in this instance because the NLRBs interpretation raised serious First Amendment issues). This canon of statutory construction, however, is notapplied in every case where an agency interpretation is challenged onconstitutional grounds. Rather, courts [should] scrutinize constitutionalobjections to a particular agency interpretation skeptically, and  [o]nly if theagencys proffered interpretation raises serious constitutional concerns [should] acourt refuse to defer under Chevron. Williams v. Babbitt, 115 F.3d 657, 662(9th Cir. 1997) (italics in original), cert. denied, 118 S.Ct. 1795 (1998); see Rust500 U.S. at 19192 (although regulations were challenged on constitutionalgrounds, Court granted Chevron deference to regulations and addressedconstitutional question on the merits); Republican Natl Comm. v. FederalElection Commn, 76 F.3d 400, 409 (D.C.Cir. 1996) (court applied Chevrondeference because it was able to easily resolve . . . First Amendment challenges[to the regulation] through the application of controlling precedent). In short, constitutional narrowing should displace Chevron only when the constitutionalproblems are truly grave and never when it would effectively preclude allpolicy options because all possible interpretations raise constitutional problems. Williams, 115 F.3d at 663. For the reasons that follow, I conclude neither of the constitutionalchallenges asserted by US West is serious enough to warrant abandoning thetraditional deference we grant agency interpretations under Chevron.First Amendment challenge US West contends the CPNI Order violates the First Amendment byrequiring that carriers secure prior affirmative consents from customers beforeusing individuallyidentifiable customer information to speak with theircustomers on an individualized basis about services beyond the categories oftelecommunications services to which they currently subscribe. US WestsOpening Brief at 22. In other words, US West suggests the CPNI Order undulylimits its ability to engage in commercial speech with its existing customersregarding new products and services it may offer. US West also claims the CPNIOrder restricts the ability of carriers to share and use CPNI internally!to havedifferent divisions, affiliates, and personnel within the same carrier communicateinformation to each other (i.e., to speak to each other), absent a prior affirmativeconsent from the customer. Id. The problem with US Wests arguments is they are more appropriatelyaimed at the restrictions and requirements outlined in  222 rather than theapproval method adopted in the CPNI Order. As outlined above, it is the statute,not the CPNI Order, that prohibits a carrier from using, disclosing, or permittingaccess to individually identifiable CPNI without first obtaining informed consentfrom its customers. Yet US West has not challenged the constitutionality of222, and this is not the proper forum for addressing such a challenge even if it was raised.Ѝ #T\  P7P#I have found no authority that would allow us, in the context of reviewing theCPNI Order, to pass on the constitutionality of  222. Indeed, the most this court can dois strike the CPNI Order, which would have no effect on the continued validity of thestatute. #XN\  P8XP#ч Thus, we must assume the restrictions and requirements outlined inthe statute are constitutional. More specifically, we must assume the statutesrestrictions on the use of CPNI, and its requirement that a carrier obtain customerapproval prior to using, disclosing, or permitting access to individuallyidentifiable CPNI, do not violate the First Amendment. Focusing strictly, then, on the portion of the CPNI Order challenged by USWest, I find nothing that warrants First Amendment scrutiny. As previouslynoted, the portion of the CPNI Order at issue in this case simply adopts from anextremely limited range of choices the particular method a carrier must use inobtaining customer approval. In my view, nothing about this selection method,viewed alone, impacts expressive activity. At bottom, the CPNI Order narrowlyimpacts a carriers nonexpressive activity by requiring it to obtain express, ratherthan implied, customer approval. The CPNI Order does not, however, directlyimpact a carriers expressive activity (by, for example, limiting the manner inwhich a carrier can speak), nor does it indirectly impact a carriers expressiveactivity in such a manner as to warrant First Amendment scrutiny. See generallyArcara v. Cloud Books, Inc., 478 U.S. 697, 70207 (1986) (discussing when First Amendment scrutiny will and will not be applied to a statute). Although the majority attempts to explain how the CPNI Order impacts USWests free speech rights, its analysis is frustratingly vague.Ѝ #T\  P9P#Although the majority cites Florida Bar v. Went For It, Inc., 515 U.S. 618(1995) in support of its limited analysis, that case is quite different from the instantaction. At issue in Went For It was a Florida Bar rule that restricted attorneys use ofdirect mail advertisements; in other words, a rule that directly impacted attorneyscommercial speech. Here, in contrast, the CPNI Order does not directly affect any formof expressive activity engaged in by US West or other telecommunications carriers.#XN\  P:XP#щ Indeed, themajoritys discussion of this critical point contains no reference to the optinmethod selected by the FCC in the CPNI Order. Instead, the majority strays fromthe narrow scope of the CPNI Order and effectively takes into account thestatutory restrictions on CPNI usage. Unfortunately, this error permeates notonly the majoritys threshold analysis of whether the CPNI Order implicates USWests free speech rights, but its subsequent First Amendment analysis as well.Ѝ #T\  P;P#It is difficult to tell from the majoritys opinion where its analysis of the CPNIOrder ends and its analysis of the statute begins. For much of the opinion, the majorityappears to be reviewing the constitutionality of  222 rather than the CPNI Order.#XN\  P<XP# In order to highlight the deficiencies in the majoritys First Amendmentanalysis, I will assume, for purposes of argument only, that the CPNI Orderimpacts a carriers free speech rights in a manner sufficient to warrant FirstAmendment scrutiny. I will also accept, for purposes of the following discussion, the majoritys conclusions that the speech affected by the CPNI Orderis commercial speech subject to First Amendment analysis under the test outlinedin Central Hudson Gas & Elec. Corp. v. Public Serv. Commn, 447 U.S. 557(1980). As noted by the majority, protected commercial speech (i.e., commercialspeech that is neither misleading nor unlawful) may be regulated only if thegovernment can show that (1) it has a substantial state interest in regulating thespeech, (2) the regulation directly and materially advances that interest, and (3)the regulation is no more extensive than necessary to serve the interest. Revo v.Disciplinary Bd. of the Supreme Ct. of New Mexico, 106 F.3d 929, 932 (10thCir.) (outlining Central Hudson test). A review of  222 indicates Congress had a twofold interest in regulatingthe disclosure of CPNI: the protection of consumer privacy and the promotion offair competition among telecommunications carriers. In my view, Supreme Courtand circuit precedent clearly supports the conclusion that both of these interestsare substantial for First Amendment purposes. See, e.g., Turner BroadcastingSystem, Inc. v. FCC, 117 S.Ct. 1174, 1186 (1997) (concluding federalgovernment had substantial interest in promoting fair competition in market fortelevision programming); Went For It, 515 U.S. at 62425 (concluding FloridaBar Association had substantial interest in protecting privacy of personal injuryvictims by prohibiting invasive and unsolicited contact by lawyers); Van Bergen v. State of Minnesota, 59 F.3d 1541, 1555 (8th Cir. 1995) (concludinggovernment had substantial interest, motivated by protecting consumer privacy,in limiting use of unsolicited sales calls by autodialing/announcing devices);Lanphere & Urbaniak v. State of Colorado, 21 F.3d 1508, 151415 (10th Cir.1994) (concluding government had substantial interest in protecting privacy ofpersons charged with misdemeanor traffic offenses and DUI); Curtis v.Thompson, 840 F.2d 1291, 1300 (7th Cir. 1988) ( When the fundamental right toprivacy clashes with the right of free expression, the interest in privacy does notplay second fiddle when the speech is merely intended to propose a commercialtransaction.). Although the majority ultimately accepts Congress interest in protectingcustomer privacy, it does so only after disparaging that interest and offering itsown views concerning the advantages and disadvantages of protecting theprivacy of consumer information. Judges are not experts in the field [beingregulated], and are not part of either political branch of the Government. Chevron, 467 U.S. at 865. The majority also criticizes the FCC for failing tooffer a more empirical explanation and justification for the privacy interest. Majority Opinion at 21. The problem with this criticism is that, once again, themajority ignores the procedural context of this case. The privacy interest did notoriginate with the FCC or the CPNI Order; rather, it originated with Congress when it enacted the restrictions outlined in  222. Precisely how the FCC couldhave or, for that matter, why it would have included in the administrative record more empirical explanation and justification for an interest that originated withCongress, and thus predated the administrative process in this case, is unclear.Ѝ #T\  P=P#The majority holding presents a serious dilemma for the FCC. Because USWest has not challenged the constitutionality of  222, carriers remain statutorily boundto obtain customer approval prior to using, disclosing, or granting access toindividually identifiable CPNI. Further, the question of how this approval is to beobtained remains open. Thus, it would seem that, in light of the majoritys opinion, theFCC must again attempt to formulate a method for obtaining such approval. It is unclearwhether the FCC will now effectively be bound to adopt the optout method advocatedby US West and the majority.#XN\  P>XP# As an administrative agency, and not an independent branch of government, theFCC was obligated to implement without question Congress directive to requiresome form of customer approval. Even more disturbingly, the majority rejects outright any Congressionalinterest in promoting competition. Although I agree protection of customerprivacy is perhaps the dominant purpose of  222, it is impossible to ignore thefact that  222 was enacted as part of the Telecommunications Act of 1996, theentire purpose of which was [t]o promote competition . . . in order to securelower prices and higher quality services for American telecommunicationsconsumers. Pub. L. No. 104104, 110 Stat. 56, 56 (1996); see In re Graven, 936F.2d 378, 385 (8th Cir. 1991) (when interpreting statute, court looks not only to its express language, but also to overall purpose of act of which it is a part). Indeed, the notion that promotion of competition was one of Congress purposesin enacting  222 is entirely consistent with the plain language of the statuteitself. By restricting carriers usage of CPNI,  222 helps diminishanticompetitive barriers in the telecommunications market by requiring carriers(both large and small) to rely on methods other than analysis of existing CPNI topromote their products, and thereby reduces the possibility that a carrier willeasily convert its existing customers for a particular product or service intocustomers for its new products or services. Turning to the next prong of Central Hudson, I conclude the restrictionsoutlined in  222 directly and materially advance Congress twin interests ofprotecting customer privacy and promoting competition. By preventing a carrierfrom using, disclosing, or permitting access to individually identifiable CPNIwithout customer approval,  222 directly promotes the goal of protectingcustomer privacy. Indeed,  222 arguably promotes the First Amendment rightsof consumers by allowing them to call whom they wish when they wish withoutfear that their calling records will be disclosed to others. Likewise,  222slimitations on the use of CPNI appear to promote competition by leveling theplaying field among carriers offering new types of telecommunications markets. For example,  222 makes it more difficult for a large longdistance carrier (such as AT&T) to develop an immediate monopoly in a new telecommunicationsmarket (e.g., PCS) by limiting its use of CPNI obtained from its longdistancecustomers. In addressing this prong of Central Hudson, the majority once againignores the procedural context of the case and criticizes the FCC for present[ing] no evidence showing the harm to either privacy or competition isreal. Majority Opinion at 25. As stated above, because the two interestsoriginated with Congress and thus predated the administrative process that led tothe issuance of the CPNI Order, it is unclear precisely what the majority believesthe FCC should have done to bolster the administrative record. Indeed, I submitit was wholly unnecessary for the FCC to collect or consider any evidenceregarding these two Congressional interests. Instead, the FCCs much morenarrow responsibility, which I believe it reasonably fulfilled, was to fill in thegaps left by Congress when it enacted  222. Finally, I turn to the last prong of Central Hudson, which asks whether therestrictions at issue are narrowly tailored to achieving the governments interests. In Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 480 (1989), theSupreme Court emphasized the fit between the restrictions and thegovernmental interests need not be necessarily perfect, but reasonable. Inother words, the restrictions do not have to represent the single best disposition but one whose scope is in proportion to the interest served. Id. Beforeaddressing the CPNI Order, I again note US West has not challenged  222, andhas thus effectively conceded the requirement of customer approval is narrowlytailored to achieving the interests of privacy and competition. As for the CPNIOrder itself, I am convinced it is also narrowly tailored to achieving these sameinterests. The administrative record convincingly demonstrates that, of thelimited options available to the FCC, the optin method of obtaining customerapproval was the most reasonable solution. As the FCC concluded in the CPNIOrder, the method of implied approval suggested by US West (i.e., the optoutmethod) did not ensure that the Congressional goal of informed customer consentwould be satisfied. As for the two express methods of approval available to it,the FCC chose the least restrictive method available. More specifically, the FCCrejected the express written approval method as too restrictive, and adopted theoptin method which allows carriers to obtain express written, oral, or electronicapproval from customers. Ultimately, I conclude the FCCs selection satisfiesthe last Central Hudson prong because it represents a carefu[l] calculat[ion of]the costs and benefits associated with the burden on speech imposed by itsprohibition. Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 (1993)(internal quotation marks omitted). The majority, focusing at this point on the CPNI Order rather than the statute, concludes the FCC failed to adequately consider the optout method,which the majority characterizes as an obvious and substantially less restrictivealternative than the optin method. Majority Opinion at 29. Notably, however,the majority fails to explain why, in its view, the optout method is substantiallyless restrictive. Presumably, the majority is relying on the fact that the optoutmethod typically results in a higher approval rate than the optin method. Were mere approval percentages the only factor relevant to our discussion, themajority would perhaps be correct. As the FCC persuasively concluded in theCPNI Order, however, the optout method simply does not comply with  222'srequirement of informed consent. In particular, the optout method, unlike theoptin method, does not guarantee that a customer will make an informeddecision about usage of his or her individually identifiable CPNI. To thecontrary, the optout method creates the very real possibility of uninformedcustomer approval. In the end, I reiterate my point that the optin methodselected by the FCC is the only method of obtaining approval that serves thegovernmental interests at issue while simultaneously complying with the expressrequirement of the statute (i.e., obtaining informed customer consent). In summary, as US West has not challenged the constitutionality of  222,there is no need to subject the CPNI Order to First Amendment scrutiny. Evenassuming, arguendo, such scrutiny is required, I conclude the CPNI Order does not violate US Wests First Amendment rights. In my view, US West has notposed a grave First Amendment challenge to the CPNI Order. Fifth Amendment challenge US West also contends the FCCs restrictions on the disclosure of CPNIare so severe they constitute a regulatory taking of property without justcompensation, in violation of the Takings Clause of the Fifth Amendment. Aswith its First Amendment claim, US West is again, in my view, aiming at thestatutory restrictions rather than the narrow portion of the CPNI Order at issue inthis case. Even assuming, for purposes of argument, that US Wests takingsargument is focused solely on the CPNI Order, I find no merit to it.hЍ #T\  P?P#I find US Wests takings claim inconsistent with its First Amendment claim. In particular, the more accessible CPNI is to various employees within the company, theless likely it is that CPNI will be deemed a trade secret and thereby be entitled toprotection under the Fifth Amendments Taking Clause. Moreover, if CPNI is disclosedto outside companies, it would clearly lose any protection as a trade secret and would notbe considered property protectable under the Fifth Amendment.#XN\  P@XP#h The Fifth Amendment provides, in pertinent part: nor shall privateproperty be taken for public use, without just compensation. U.S. Const.amend. V. The purpose of the Fifth Amendment is to prevent the [g]overnmentfrom forcing some people alone to bear public burdens which, in all fairness andjustice, should be borne by the public as a whole. 767 Third Avenue Assoc. v.United States, 48 F.3d 1575, 1580 (Fed.Cir. 1995) (quoting Penn Central Transp. Co. v. New York City, 438 U.S. 104, 123 (1978)). In addressing US Wests takings argument, the threshold question iswhether CPNI constitutes property for purposes of the Takings Clause. USWest gives short shrift to this issue, arguing the decision in Ruckelshaus v.Monsanto Co., 467 U.S. 986 (1984), establishes that CPNI is protectable propertyfor purposes of the Takings Clause. In Monsanto, plaintiff Monsanto, a pesticidemanufacturer doing business in Missouri, filed suit challenging certainamendments to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA),7 U.S.C.  136 et seq., requiring it to disclose to the EPA various health,environmental, and safety data related to its products. In addressing Monsantosassertion that the challenged regulations constituted a takings under the FifthAmendment, the Court held that to the extent that Monsanto ha[d] an interest inits health, safety, and environmental data cognizable as a trade secret propertyright under Missouri law, that property right [wa]s protected by the TakingClause of the Fifth Amendment. 467 U.S. at 100304. Although Monsanto certainly sets the stage for treatment of CPNI asproperty for Fifth Amendment purposes, US West has failed to take the requisitestep of demonstrating that CPNI qualifies as trade secret property, or any otherkind of protectable property interest, under state law. Therefore, there is no basisfor concluding US West has presented a grave or serious Fifth Amendment challenge to the CPNI Order. R)IV. In conclusion, I view US Wests petition for review as little more than arunofthemill attack on an agency order clothed by ingenious argument in thegarb of First and Fifth Amendment issues. Zemel v. Rusk, 381 U.S. 1, 1617(1965). Because there is no merit to those constitutional arguments, and becausethe FCCs CPNI Order is an entirely reasonable interpretation of 47 U.S.C.222, I would deny US Wests petition for review and affirm the CPNI Order.