                   �nii£o �tai£s Olourt of J\pp£als
                            FOR THE DISTRICT OF COLUMBIA CIRCUIT



No. 15-1461                                                September Term, 2016
                                                                         FCC-80FR79136
                                                        Filed On: August 4, 2017
Global Tel*Link,

             Petitioner

      V.

Federal Communications Commission and
United States of America,

             Respondents

--·---------------
Centurylink Public Communications, Inc., et
al.,
             lntervenors

Consolidated with 15-1498, 16-1012,
16-1029, 16-1038, 16-1046, 16-1057

      BEFORE:        Pillard*, Circuit Judge; Edwards and Silberman, Senior Circuit
                     Judges

                                        ORDER

      It is ORDERED, on the court's own motion, that the opinion issued June 13,
2017, be amended by appending to the opinion the "Clarification and Amendment of
the Majority Opinion," attached to this order.

      The Clerk is directed to issue the amended opinion.

                                       Per Curiam
                                                         FOR THE COURT:
                                                         Mark J . Langer, Clerk
                                                  BY:    /s/

                                                         Ken Meadows
                                                         Deputy Clerk
*Circuit Judge Pillard does not join in the "Clarification and Amendment of the Majority
Opinion."
                CLAmFIcATI0N AND AMENDMENT OF THE MAJ0IUTY OPINION

        After the opinions in this case were issued, the Wright Petitioners filed a petition for
rehearing en bane, challenging the panel majority’s decision on three points relating to the FCC’s
Order on interstate and intrastate prison phone rates. On the three points in issue, the majority
opinion reaches the following judgments:

   •   We hold that the Order’s proposed caps on intrastate rates exceed the FCC’s
       statutory authority under the 1996 Act. We therefore vacate this provision.

   •   We further hold that the use of industry-averaged cost data as proposed in the
       Order is arbitrary and capricious because it lacks justification in the record and
       is not supported by reasoned decisionmaking. We therefore vacate this
       provision.

   •   We find that the Order’s proposed wholesale exclusion of site commission
       payments from the FCC’ s cost calculus is devoid of reasoned decisionmaking
       and thus arbitrary and capricious. This provision cannot stand as presently
       proposed in the Order under review; we therefore vacate this provision and
       remand for further proceedings on the matter.
Global Tel*Linkv. FCC, $59 F.3d 39,45 (D.C. Cir. 2017).

        In its petition for rehearing en bane, the Wright Petitioners complain that, “[a]lthough this
case involves an ambiguous statute administered by the FCC, the panel did precisely what Chevron
disclaimed: it ‘impose[d] its own construction on the statute’ rather than defer to the FCC’s
detailed analysis of an ambiguous statute.  .   . The panel opinion creates a dangerous loophole to
                                                    .



evade judicial review when agencies are unable or unwilling to justify changed positions.” Br. for
Wright Petitioners at 6, $ (quoting Chevron, U$.A., Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837, $43 (1984)). These claims are meritless.

       Lest there be any confusion over the majority’s opinion going forward, there are two points
that warrant clarification. first, the majority opinion carefully analyzes the terms of the FCC’s
Order and the agency’s justifications in support of the Order. The majority does not second-guess
the agency. Rather, the majority found the FCC’s justifications for the proposed caps on intrastate
rates “manifestly contrary to the statute,” Chevron, 467 U.S. at $44, and clearly unworthy of
deference.
        Second, as noted above, after reviewing the entire record in this case, the majority opinion
concludes that “the Order’s proposed caps on intrastate rates exceed the FCC’s statutory authority
under the 1996 Act.” It goes without saying that if an agency action exceeds its statutory authority,
the agency is entitled to no deference under Chevron. See, e.g., Sullivan v. Zebley, 493 U.S. 521,
541 (1990); Goldstein v. SEC, 451 F.3d 873, 880—81 (D.C. Cir. 2006). As the concurring opinion
notes, “the statute’s structure and context demonstrates that the agency’s interpretation would fail
at Chevron’s second step; it is an unreasonable (impermissible) interpretation of section 276.” If
this point was lost in the original opinion issued by the majority, we make it clear now. We need
not and do not decide whether we were required to follow Chevron Step Two even though the
agency declined to defend its position before the court. The important point here is that we have
carefully analyzed the contested provisions of the FCC’s Order and found that they cannot survive
review under either the “best reading” of the statute standard, Miller v. Clinton, 687 F.3d 1332,
1342 (D.C. Cir. 2012) (quoting Landmark Legal Found v. IRS, 267 F.3d 1132, 1136 (D.C. Cir.
2001)), or pursuant to Chevron Step Two.
        There is no Chevron question with respect to the majority’s decision on the use of industry-
averaged cost data as proposed in the Order. The majority found that provision arbitrary and
capricious because it lacks justification in the record and is not supported by reasoned
decisionmaking. The same is true with respect to the majority decision on the Order’s proposed
wholesale exclusion of site commission payments from the FCC’s cost calculus. We found that
provision devoid of reasoned decisionmaking and thus arbitrary and capricious. It is clear that no
Chevron deference is due to agency decisions that are unsupported by reasoned decisionmaking.
