 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued October 16, 2017           Decided December 15, 2017

                        No. 16-1277

                        NTCH, INC.,
                        PETITIONER

                             v.

   FEDERAL COMMUNICATIONS COMMISSION AND UNITED
               STATES OF AMERICA,
                  RESPONDENTS

      CELLCO PARTNERSHIP, D/B/A VERIZON WIRELESS,
                     INTERVENOR


           On Petition for Review of an Order of
         the Federal Communications Commission


    Donald J. Evans argued the cause for petitioner. With him
on the briefs was Ashley Ludlow. Jonathan Markman entered
an appearance.

     Maureen K. Flood, Counsel, Federal Communications
Commission, argued the cause for respondents. On the brief
were Robert B. Nicholson and Jonathan H. Lasken, Attorneys,
U.S. Department of Justice, David M. Gossett, Deputy General
Counsel, Richard K. Welch, Deputy Associate General
Counsel, and Matthew J. Dunne, Counsel. Jacob M. Lewis,
Associate General Counsel, entered an appearance.
                               2

    David L. Haga argued the cause for intervenor. With him
on the brief was Christopher M. Miller. Andre J. Lachance
entered an appearance.

   Before: ROGERS and TATEL, Circuit Judges, and
EDWARDS, Senior Circuit Judge.

   Opinion for the Court filed by Senior Circuit Judge
EDWARDS.

     EDWARDS, Senior Circuit Judge: NTCH, Inc. (“NTCH”),
a regional Commercial Mobile Radio Service carrier in a
number of markets around the United States, petitions this
court for review of an order issued by the Enforcement Bureau
(“Bureau”) of the Federal Communications Commission
(“Commission”). The Bureau acted pursuant to delegated
authority under 47 U.S.C. § 155(c)(1), but NTCH never sought
Commission review of the Bureau order before petitioning for
judicial review. The Communications Act of 1934 (“Act”)
requires complaining parties who seek to challenge any such
action taken by the Bureau to first seek review with the
Commission as “a condition precedent to judicial review.” 47
U.S.C. § 155(c)(7) (2012). Therefore, this court has no
jurisdiction to entertain NTCH’s challenge to the order issued
by the Bureau. Int’l Telecard Ass’n v. FCC, 166 F.3d 387, 388
(D.C. Cir. 1999) (per curiam).

     NTCH argues that because the Bureau’s order concluded
an investigation into the lawfulness of a charge, classification,
regulation, or practice under 47 U.S.C. § 208, it was a “final
order” under § 208(b) and, thus, subject to judicial review.
NTCH is mistaken. Even if NTCH’s claim falls within the
compass of § 208(b), this court still does not have jurisdiction
to address it. As we explain below, the order issued by the
                              3
Bureau is not an order of the Commission. And without a final
order from the Commission, we have no jurisdiction to address
NTCH’s petition for review.

     Because NTCH failed to seek Commission review before
petitioning for review in this court, we are constrained to
dismiss the petition for lack of jurisdiction.

                      I. BACKGROUND

     This case concerns NTCH’s attempt to challenge
Commission rules governing disputes over voice and data
“roaming” rates. “[W]hen wireless subscribers travel outside
the range of their own carrier’s network and use another
carrier’s network infrastructure to make a call,” the rate the
latter carrier charges the “roaming” carrier’s customer is the
“roaming” rate. Cellco P’ship v. FCC, 700 F.3d 534, 537 (D.C.
Cir. 2012). Voice roaming allows customers to make telephone
calls when they go outside of their mobile operator’s cellular
network; data roaming, in turn, allows customers to access data
services, such as the internet. Smaller carriers such as NTCH,
with only limited networks, have obvious concerns about the
roaming charges they may absorb on behalf of their wireless
subscribers.

    The Commission issued orders governing voice roaming
in 2007, see In the Matter of Reexamination of Roaming
Obligations of Commercial Mobile Radio Service Providers,
22 FCC Rcd. 15817 (2007), and 2010, see In the Matter of
Reexamination of Roaming Obligations of Commercial Mobile
Radio Service Providers and Other Providers of Mobile Data
Services, 25 FCC Rcd. 4181 (2010) (collectively, “Voice
Roaming Orders”). In 2011, the Commission issued an order
governing data roaming. See In the Matter of Reexamination of
Roaming Obligations of Commercial Mobile Radio Service
                                4
Providers and Other Providers of Mobile Data Services (“Data
Roaming Order”), 26 FCC Rcd. 5411 (2011). In 2015, the
Commission issued an order classifying retail broadband
internet access service as a “telecommunications service”
subject to common carriage regulation under Title II of the Act.
See In the Matter of Protecting and Promoting the Open
Internet (“Open Internet Order”), 30 FCC Rcd. 5601, 5743 ¶
331 (2015), aff’d, U.S. Telecom Ass’n v. FCC, 825 F.3d 674
(D.C. Cir. 2016).

    In its Voice Roaming Orders, the Commission found that §
208 applied to the provisioning of voice roaming as a common
carrier service. In the Matter of NTCH, Inc., Complainant v.
Cellco P’ship d/b/a Verizon Wireless, Defendant, 31 FCC Rcd.
7165, 7167–68 ¶ 7 (2016). The Commission’s rules provide
that the Bureau resolves complaints filed under § 208.
Compare 47 C.F.R. § 0.311 (2016) (stating that “[t]he Chief,
Enforcement Bureau, is delegated authority to perform all
functions of the Bureau, described in § 0.111,” except for
certain matters not germane here and “[o]rders concluding an
investigation under section 208(b) of the Communications Act
and orders addressing petitions for reconsideration of such
orders,” which “shall be referred to the Commission en banc
for disposition”), with id. § 0.111(a)(1) (stating that the Bureau
shall “[r]esolve complaints, including complaints filed under
section 208 of the Communications Act, regarding acts or
omissions of common carriers (wireline, wireless and
international)”); see also 47 U.S.C. § 155(c)(1) (2012) (stating
that the Commission “may . . . delegate any of its functions,”
with the exception of actions referred to in § 208(b) and other
sections not germane here). The Commission’s Data Roaming
Order set forth procedures for resolving disputes over its data
roaming rule, providing that parties could file complaints under
47 C.F.R. § 20.12(e)(2) and delegating authority to the Bureau
to adjudicate data roaming complaints. 47 C.F.R. §
                                5
0.111(a)(11) (2016); Data Roaming Order, 26 FCC Rcd. at
5451 ¶ 82 (“We further clarify that the Enforcement Bureau has
delegated authority to resolve complaints arising out of the data
roaming rule.”) & n.238 (“We add appropriate clarifying
language to this effect to the rule governing the functions of the
Enforcement Bureau.” (citing modifications to 47 C.F.R. §
0.111(a)(11) (2016))). NTCH concedes that the Bureau acted
pursuant to delegated authority, but contends that the
Commission’s delegation of authority to the Bureau violated
47 U.S.C. § 155(c)(1).

     On November 22, 2013, after the Commission’s Data and
Voice Roaming Orders were released (but before the
Commission’s Open Internet Order reclassified mobile
broadband as a Title II service subject to common carriage
regulation), NTCH filed a complaint against Verizon Wireless
(“Verizon”). The complaint alleged that Verizon had violated
the Commission’s Voice Roaming Orders and Data Roaming
Order by offering roaming rates that were unjust and
unreasonable, unreasonably discriminatory, and commercially
unreasonable. The complaint noted that voice roaming is a
common carrier service whose rates are subject to the standards
of § 201(b), which requires just and reasonable rates, and §
202(a), which forbids discriminatory pricing. The complaint
also contended that data roaming is a common carrier service
subject to Title II’s just and reasonable and nondiscrimination
obligations, but that in any case the data rate was not
“commercially reasonable” under the standards the
Commission had adopted in its Data Roaming Order.

     NTCH’s complaint also alleged that the rates offered by
Verizon were unreasonably discriminatory vis à vis rates
offered to other carriers and Mobile Virtual Network Operators
(“MVNOs”) for similar or identical services. It alleged that
Verizon’s data roaming practices restrained trade because they
                               6
permitted MVNOs, particularly one called Straight Talk, to
offer predatorily low rates to customers in competition with
smaller carriers targeting the prepaid market, thus undercutting
the smaller carriers’ ability to survive. NTCH asked the
Commission to force Verizon to make its roaming rates to all
carriers public on the grounds that nondisclosure agreements
prevented anyone (including the Commission) from
discovering whether the rates Verizon offered to different
carriers were discriminatory.

     NTCH’s complaint did not mention § 208(b)(1), which
provides that the “Commission shall” issue an order concluding
an investigation into the lawfulness of a charge or practice of a
common carrier “within 5 months” after the filing of a
complaint. On July 2, 2014, NTCH filed an amended
complaint, again without including any assertion that the
complaint proceeding was governed by § 208(b)(1) or its five-
month deadline. On September 18, 2015, NTCH for the first
time (and without any analysis or explanation) cursorily
asserted in a brief filed in support of its complaint that the
complaint must be resolved within five months under §
208(b)(1). On June 30, 2016, the Bureau issued its order
denying NTCH’s complaint. It found that Verizon’s proffered
voice roaming rate was not unjust or unreasonable, or
unreasonably discriminatory, under the Commission’s rules;
that Verizon’s proffered data roaming rates were commercially
reasonable and not in violation of the Commission’s data
roaming rules; and that NTCH’s proposed factors for
consideration in evaluating Verizon’s proffered rates (cost of
service, comparison to retail rates, and comparisons to carriage
with MVNOs) should be rejected as inappropriate and not
comparable. NTCH then filed a petition for review with this
court without seeking review by the Commission.
                               7
     NTCH now asks this court to declare the roaming rates
offered by Verizon unjust and unreasonable and unreasonably
discriminatory, and to reverse and remand the disputed order
issued by the Bureau. NTCH also asks the court to instruct the
Commission to reassess roaming costs and reasonable rates of
return, permit appropriate discovery into those costs, and direct
Verizon to charge NTCH no more that it charges any other
carrier for roaming services. Finally, NTCH challenges the
Commission’s decision in the Open Internet Order, 30 FCC
Rcd. at 5857–58 ¶ 526, to forbear from applying §§ 201(b) and
202(a) to data roaming.

     For the reasons indicated below we dismiss the petition for
review for lack of jurisdiction.

                         II. ANALYSIS

A. Standard of Review

     “We defer to the Commission’s interpretation of the . . .
Act so long as the Congress has not unambiguously forbidden
it and it is otherwise permissible.” Cal. Metro Mobile
Commc’ns, Inc. v. FCC, 365 F.3d 38, 43 (D.C. Cir. 2004).
However, questions concerning the jurisdiction of the court are
reviewed de novo. Gentiva Healthcare Corp. v. Sebelius, 723
F.3d 292, 297 (D.C. Cir. 2013).

B. NTCH’s Challenge to the Order Issued by the Bureau

     As noted above, the disputed order in this case was issued
by the Bureau. The Bureau was acting pursuant to delegated
authority, 47 U.S.C. § 155(c)(l), (3); 47 C.F.R. § 0.111(a)(11),
and applying rules and guidelines set out by the Commission
in three previous orders, see In the Matter of NTCH, Inc.,
Complainant, 31 FCC Rcd. 7165 (discussing Commission
                                8
actions that had addressed wireless carriers’ obligation to
provide roaming to carriers requesting roaming agreements).
And the Bureau’s disposition of NTCH’s complaint was a
staff-level order that was subject to review by the Commission.
See 47 U.S.C. § 155(c)(4). At no time during the proceeding
before the Bureau did NTCH ever seek review by the
Commission; nor did NTCH’s complaint before the Bureau
assert that its claims were subject to 47 U.S.C. § 208(b)(l)’s
five-month deadline. NTCH’s first invocation of that limit
appeared in its initial brief to the Bureau when no resolution of
its administrative complaint had occurred for almost two years.
After the Bureau issued the order denying NTCH’s complaint,
NTCH proceeded directly to seek review by this court.

    Given these circumstances, we are constrained to dismiss
NTCH’s petition for review for want of jurisdiction. The Act
expressly provides that, after a bureau has acted pursuant to
delegated authority,

       (4) Any person aggrieved by any such order,
    decision, report or action may file an application for
    review by the Commission . . .

       (7) The filing of an application for review under
    this subsection shall be a condition precedent to
    judicial review of any order, decision, report, or
    action made or taken pursuant to a delegation under
    paragraph (1) of this subsection.

47 U.S.C. § 155(c)(4), (7). In light of these statutory provisions,
it is well established that “a petition for review filed after a
bureau decision but before resolution by the full Commission
is subject to dismissal as incurably premature.” Int’l Telecard
Ass’n, 166 F.3d at 388; see also Verizon Tel. Cos. v. FCC, 453
                               9
F.3d 487, 500 (D.C. Cir. 2006); Richman Bros. Records v.
FCC, 124 F.3d 1302, 1303 (D.C. Cir. 1997).

C. NTCH’s Claim that the Bureau’s Order Is Subject to
   Judicial Review Under 47 U.S.C § 208(b)

    NTCH argues that its petition for review should not be
dismissed under 47 U.S.C. § 155(c)(7) because the Bureau’s
action was a “final order” that is subject to review under 47
U.S.C. § 208(b)(3). We disagree.

    Section 208(b) states:

    (1) Except as provided in paragraph (2), the
    Commission shall, with respect to any investigation
    under this section of the lawfulness of a charge,
    classification, regulation, or practice, issue an order
    concluding such investigation within 5 months after
    the date on which the complaint was filed.

    (2) The Commission shall, with respect to any such
    investigation initiated prior to November 3, 1988,
    issue an order concluding the investigation not later
    than 12 months after November 3, 1988.

    (3) Any order concluding an investigation under
    paragraph (1) or (2) shall be a final order and may be
    appealed under section 402(a) of this title.

47 U.S.C. § 208 (b)(1), (2), (3) (2012). As is clear from the
terms of the statute, § 208(b)(3) refers to orders issued under §
208(b)(1) or (2), which refer to orders issued by “the
Commission.” When Congress says “the Commission,” it
means the Commission. When Congress means to refer to
delegated subdivisions of the Commission, it does so explicitly.
                               10
For example, the Act’s exhaustion requirement, 47 U.S.C. §
405(a) (2012), provides that “[t]he filing of a petition for
reconsideration shall not be a condition precedent to judicial
review of any such order, decision, report, or action, except
where the party seeking such review . . . (2) relies on questions
of fact or law upon which the Commission, or designated
authority within the Commission, has been afforded no
opportunity to pass,” id. (emphasis added).

     Section 208(b)(3) does not refer to any “delegated
subdivisions” of the Commission. Therefore, the “final order”
to which § 208(b)(3) refers is an order of the Commission.
Furthermore, § 208(b)(3) refers to orders issued under §
208(b)(1) and (2), which refer to orders issued by “the
Commission.” 47 U.S.C. § 208(b). Section 208(b)(3) also says
that “[a]ny order concluding an investigation under paragraph
(1) or (2) shall be a final order and may be appealed under [47
U.S.C.] section 402(a).” Id. And “[u]nder 28 U.S.C. § 2342(1)
(1994), this court has jurisdiction to determine the validity of
all final orders of the . . . Commission made reviewable by
section 402(a).” Verizon Tel. Cos. v. FCC, 269 F.3d 1098, 1103
(D.C. Cir. 2001) (internal quotation marks omitted); see also
Verizon Tel. Cos., 453 F.3d at 494. The Bureau’s order was not
a Commission order and, therefore, it was not an order subject
to judicial review.

     In its reply brief, NTCH contends that because its
complaint ostensibly fell under § 208(b) rather than § 208(a),
the Commission’s delegation of the complaint to the Bureau
was improper. However, this “improper delegation” argument
also fails for lack of jurisdiction. As noted above, “47 U.S.C.
§ 155(c)(7) . . . makes the filing of an application for review by
the Commission ‘a condition precedent to judicial review’ of a
decision taken pursuant to delegated authority.” Richman Bros.
                              11
Records, 124 F.3d at 1303. As we explained in Environmentel,
LLC v. FCC:

    [A]pplications for review are designed to ensure
    that if a delegated authority, such as the Wireless
    Bureau, renders a decision, the Commission itself
    has the opportunity to review the decision before
    this Court considers it. The FCC Rules provide that
    “[a]ny person aggrieved by any action taken
    pursuant to delegated authority may file an
    application requesting review of that action by the
    Commission.” “The filing of an application for
    review shall be a condition precedent to judicial
    review of any action taken pursuant to delegated
    authority.” FCC Rules § 1.115(a), (k) (47 C.F.R. §
    1.115(a), (k)). This rule prevents a party from
    appealing directly to this Court from a decision
    made by a delegated authority.

         Under these two provisions, the full FCC must
    have the opportunity to review all cases and all
    aspects of those cases before parties may exercise
    their statutory right to appeal to this Court under 47
    U.S.C. § 402(b) (providing that “[a]ppeals may be
    taken from decisions and orders of the Commission
    to the United States Court of Appeals for the District
    of Columbia” in ten categories of cases).

661 F.3d 80, 83–84 (D.C. Cir. 2011); see also Verizon Tel.
Cos., 453 F.3d at 500; Int’l Telecard Ass’n, 166 F.3d at 388. It
does not matter whether some of NTCH’s complaint was meant
to contest matters that arguably should not have been
delegated. If NTCH meant to oppose the Bureau’s order on any
terms, it was required to seek Commission review before
petitioning for review in this court. See Environmentel, 661
                               12
F.3d at 84. Indeed, if the Commission erred by delegating to
the Bureau a dispute Congress intended the full Commission to
resolve, requiring Commission review before appeal is the only
way to honor Congress’ command – otherwise a Bureau
decision could be appealed and affirmed by this court without
the Commission ever having spoken on the matter. NTCH has
not claimed that review before the Commission was
unavailable. NTCH’s failure to seek Commission review
leaves this court without jurisdiction to consider this case on
the merits.

     Finally, NTCH complains that the Bureau’s disputed order
in this case was delayed far beyond § 208(b)(1)’s five-month
deadline. But NTCH never raised this concern with the
Commission, nor did it file a claim with this court under 5
U.S.C. § 706(1) to “compel agency action unlawfully withheld
or unreasonably delayed.” Therefore, even if NTCH’s
complaint is arguably within the compass of § 208(b) and its
attendant time constraint, NTCH did not properly raise and
preserve any issue regarding an unreasonable delay in the
issuance of the Bureau’s order.

                       III. CONCLUSION

     For the reasons set forth above, we dismiss the petition for
review for lack of jurisdiction.
                                                    So ordered.
