FEDERAL COMMUNICATIONS COMMISSION, ET AL., PETITIONERS V. ITT WORLD
COMMUNICATIONS, INC., ET AL.

   No. 83-371

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the United States Court of Appeals for the
District of Columbia Circuit

   Brief for the Petitioners

                       PARTIES TO THE PROCEEDING

   In addition to the parties named in the caption, the United States
is a petitioner, and Southern Pacific Communications Company and RCA
Global Communications, Inc., are respondents.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
   Statutes involved
   Statement
   Summary of argument
   Argument:
      I. The Consultative Process sessions were not meetings
          of the FCC, and thus were not subject to the Sunshine
          Act's open meeting requirements
          A. The Consultative Process sessions were attended
             neither by a quorum of the FCC nor by a quorum of a
             subdivision authorized to act on its behalf
          B. The Consultative Process sessions did not involve
             "deliberations"
          C. The Consultative Process sessions did not "determine
             or result in the joint conduct or disposition of
             official agency business"
          D. The Consultative Process sessions were not "meetings
             of the FCC"
      II. The district court lacked jurisdiction to consider
          ITT's ultra vires claim
          A. The courts of appeals have exclusive jurisdiction
             to review FCC orders, and this exclusivity is based
             on sound considerations of policy and practicality
          B. ITT's ultra vires claim could have been reviewed
             by the court of appeals under 47 U.S.C. 402(a), and
             the district court thus had no jurisdiction to
             consider it
   Conclusion
   Appendix

                            OPINIONS BELOW

   The opinion of the court of appeals (Pet. App. 1a-54a) is reported
at 699 F.2d 1219.  The opinion of the district court (Pet. App.
60a-66a) is not reported.  The opinion of the Federal Communications
Commission (Pet. App. 70a-87a) is reported at 77 F.C.C.2d 877.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 55a-56a) was
entered on February 1, 1983.  A timely petition for rehearing (Pet.
App. 57a-58a) was denied on April 6, 1983.  By order dated July 1,
1983, the Chief Justice extended the time within which to file a
petition for a writ of certiorari to and including September 3, 1983.
The petition was filed on September 2, 1983, and was granted on
October 31, 1983 (J.A. 180).  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

                           STATUTES INVOLVED

   The relevant portions of 5 U.S.C. 552b, 28 U.S.C. 2342, and 47
U.S.C. 402 are set forth in a statutory appendix (App., infra, 1a).

                          QUESTIONS PRESENTED

   1. Whether the Government in the Sunshine Act, 5 U.S.C. 552b, which
generally requires that agency meetings be open to public observation,
applies when members of an administrative agency, who do not
constitute a quorum and have not been authorized to conduct official
business on the agency's behalf, participate in informal, general
discussions with their foreign counterparts concerning issues of
mutual interest.

   2. Whether suit may be brought in the district court to enjoin
allegedly ultra vires action by the Federal Communications Commission,
even though jurisdiction to review that agency's orders is vested
exclusively in the court of appeals and the precise issue raised in
the district court could have been reviewed by this method.

                               STATEMENT

   1. The Government in the Sunshine Act, 5 U.S.C. 552b, requires that
agency "meetings" generally be open to the public.  The term "meeting"
is defined (5 U.S.C. 552b(a)(2)) to mean

      the deliberations of at least the number of individual agency
      members required to take action on behalf of the agency where
      such deliberations determine or result in the joint conduct or
      disposition of official agency business * * * .

   If a covered agency plans to hold a "meeting" as defined in the
Act, it must publicly announce, at least one week in advance, "the
time, place, and subject matter of the meeting (and) whether it is to
be open or closed to the public" (5 U.S.C. 552b(e)(1)).  A meeting may
be called on shorter notice only if "a majority of the members of the
agency determines by a recorded vote that agency business (so)
requires * * * " (Ibid.).  Once a "meeting" has been publicly
announced, its format may be changed only by similar recorded vote (5
U.S.C. 552b(e)(2)).

   With narrow exceptions, "every portion of every meeting of an
agency shall be open to public observation" (5 U.S.C. 552b(b).  The
ten exceptions, set forth in Section 552b(c), "are based in most
respects on (those) contained in the Freedom of Information Act." S.
Rep. 94-354, 94th Cong., 1st Sess. 3 (1975), citing 5 U.S.C. 552(b).
An agency may close a meeting (or portion of a meeting) on the basis
of these exceptions only by taking a formal, recorded vote (5 U.S.C.
552b(d)(1)).  Within one day of voting to close a meeting, the agency
must publish the votes cast by each member and "a full written
explanation of its action * * * " (5 U.S.C. 552b(d)(2)).  For any
closed meeting, the agency must prepare a complete transcript or
recording (or, in some cases, a set of detailed minutes) and must
permit public inspection of any portion thereof not protected by the
exception under which the meeting was closed (5 U.S.C. 552b(f)(1) and
(2)).

   "(A)ny person" may seek judicial review of an agency's compliance
with the Sunshine Act by bringing suit in federal district court.  5
U.S.C. 552b(h)(1).  Venue lies in "the district in which the agency
meeting is held or in which the agency * * * has its headquarters, or
in * * * the District of Columbia." If the court finds that the agency
has conducted a meeting in violation of the Act, it "may grant such
equitable relief as it deems appropriate," including disclosure of the
transcript (if any) or an injunction against future violations.  Ibid.

   2. The Communications Act grants the Federal Communications
Commission (FCC) power to regulate "interstate and foreign commerce in
communication by wire and radio * * * ." 47 U.S.C. 151.  As part of
this mission, the FCC regulates common carriers of record (non-voice)
communications, such as telex, in the international market.  A common
carrier may acquire facilities to initiate new service only after
obtaining from the FCC a certificate of "public convenience and
necessity." 47 U.S.C. 214.  Yet the Commission has the power to
authorize new service only on the American end of an international
telecommunications link.  Thus, as a practical matter, an
international record carrier cannot begin operations until it reaches
agreements with government agencies in the foreign countries it hopes
to serve.

   Respondents ITT World Communications, Inc. (ITT), and RCA Global
Communications, Inc., are two of the companies that now "dominate()"
the international record carrier market (Pet. App. 3a).  In 1977, the
FCC authorized two new companies, Graphnet Systems, Inc., and GTR
Telenet Communications Corp., to compete with respondents in this
field.  See In re Graphnet Systems, Inc., 63 F.C.C.2d 402.  ITT
challenged these authorizations, in part on the ground that the new
companies had not yet obtained interconnection agreements with foreign
telecommunications agencies, but the Second Circuit rejected this
challenge.  ITT World Communications, Inc. v. FCC, 595 F.2d 897, 903
(1979).

   Despite the FCC's authorizations, the European agencies, with which
respondents had been doing business for years, refused to enter into
agreements with Graphnet and Telenet (Pet. App. 4a).  /1/ On three
occasions between October 1979 and October 1980, several members of
the the FCC held informal discussions with their European and Canadian
counterparts that to some extent touched upon this situation.  These
discussions took place in Europe, as part of an on-going series of
conferences among telecommunications administrators known as the
"Consultative Process." Pet. App. 78a.

   The Consultative Process, begun in 1974, "reflect(ed) the mutual
desire of all participants to improve * * * the usage planning of
jointly-owned telecommunications facilities in the North Atlantic
Region" (Pet. App. 78a).  European administrators often misunderstood
the basis for FCC regulatory decisions;  the Consultative Process
originated as a way to help alleviate such misunderstandings, its
format -- typically described as an "exchange of views" -- being
dictated by a strong European preference for "informality" (J.A. 80,
87, 92, 159).  European and American officials recognized that their
views on telecommunications matters, such as the need for standardized
facilities (J.A. 128-129) or additional trans-Atlantic cables (J.A.
82), often diverged.  The Consultative Process was seen as a useful
way "to identify the different approaches being used by the different
parties, to narrow differences, and to move toward consensus" (J.A.
78).  Consultative Process sessions have never been open to the
public.  Until October 1979, however, the major U.S. international
record carriers were invited to attend (Pet. App. 5a).

   In October 1979 a Consultative Process conference was held in
Dublin, Ireland.  It was attended by three FCC Commissioners and by
representatives of the British, Canadian, French, Italian, Swedish,
and Swiss telecommunications agencies (Pet. App. 5a-6a;  J.A. 109).
The Commissioners suggested expanding the agenda to include
non-facilities topics such as new carriers and services (Pet. App.
78a).  Incumbent U.S. record carriers, including respondents, were
excluded from this part of the session.  /2/ The agenda was expanded
to include these topics in the hope that the "consultative process
(might) provide a mechanism for increasing cooperation" in the area of
new overseas service arrangements (J.A. 52, 80).  The Commissioners,
in correspondence with their European counterparts, emphasized that
they were "not seeking to negotiate the resolution of difference(s)
but only to establish a mechanism to facilitate the exchange of
information and views" (J.A. 87).  Indeed, the Commissioners "often *
* * observed (that) the FCC cannot, and should not, negotiate final
facilities arrangements;" that the Commission "must remain under U.S.
law unhindered to make its best determination about an overall
facilities plan;" and that the FCC "cannot be in a position of
prejudging or seeming to prejudge any final determinations by reaching
prior agreements in an international forum" (J.A. 78).  European
participants realized "the limited scope of authority" of the
attending Commissioners, explicitly recognizing that "it was not
within the terms of the (Consultative Process) to make
recommendations, take decisions, or to change the situation" (J.A.
128).  Rather, the hope was that, if participants understood others'
strongly held views, national agencies in their internal
decisionmaking would be more willing to make accommodations, thus
achieving a measure of "comity" (J.A. 82, 167), "reciprocity" (id. at
64), and "greater cooperation in the introduction of new services"
(id. at 52).

   3.  Apparently concerned that the Consultative Process agenda, as
expanded in Dublin, "could ultimately lead to greater competition in
the provision of international communications services," ITT filed, on
October 24, 1979, a rulemaking petition that "in effect challenge(d)
(the FCC's) authority to engage in any form of foreign consultative
discourse" (Pet. App. 78a-79a).  First, ITT asserted that the
Commission "lack(ed) authority to participate in" the kind of
discussions held in Dublin and asked the FCC to "issue a policy
statement delineating the proper scope of (the Consultative Process)
and the authority of Commissioners and staff to participate" therein
(J.A. 33).  ITT correctly noted (id. at 34) that the Commission has no
authority "to 'negotiate' with foreign governments." While
acknowledging that the FCC in the past had "exercised care in
consulting rather than negotiating," ITT expressed concern that
foreign officials might misinterpret the expanded Dublin consultations
"as efforts to negotiate" (id. at 35).  ITT urged the Commission
"expressly (to) disclaim any intention to negotiate with foreign
administrations, or to attempt to subject (them) to its regulatory
jurisdiction" (id. at 47).  Furthermore, in the event the Commission
decided that its members could permissibly engage in foreign
discussions, ITT sought the issuance of procedural rules to govern the
Consultative Process.  ITT submitted that its proposed rules comported
"with the spirit and the letter" of the Sunshine Act (Pet. App. 72a).
/3/

   The Commission denied ITT's rulemaking petition (Pet. App.
70a-87a).  It stated that it had never "negotiated" with foreign
telecommunications officials and that the later fully understood the
limited scope of the attending Commissioners' role (id. at 78a-80a).
The FCC outlined the background of the Consultative Process,
explaining that it "provides a valuable if not indispensable source of
information * * * as to future foreign communications needs and the
solutions to those needs that will be acceptable to other countries"
(id. at 79a).  By the same token, the FCC noted, the Consultative
Process gave the attending Commissioners the opportunity "to explain
and promote (the FCC's) statutory mandate" among foreign officials
accustomed to legal and economic systems less procompetitive than
ours.  See id. at 81a-82a.  This process "(wa)s not a process of
negotiation," the Commission explained, because "it recognize(d) that
each participant must independently adopt positions" in accordance
with its domestic laws (id. at 82a).  Yet to the extent that the
informal discussions "result(ed) in a cooperative telecommunications
climate" and "enhance(d) the prospect for foreign acceptance" of
FCC-authorized services, the discussions advanced the FCC's "progress
toward realization of (its) statutory goals (and were thus) a
necessary and natural corollary of its international licensing
authority" (ibid.).

   Having decided that its Commissioners could properly take part in
foreign discussions, the FCC rejected ITT's request for promulgation
of procedural rules.  ITT's proposed rules, the Commission noted, were
largely based on the assumption that Consultative Process sessions
were covered by the Sunshine Act, an assumption the Commission
determined to be erroneous (Pet. App. 83a-84a).  However,
"recogniz(ing) and support(ing) the desirability of conducting its
activities, both formal and informal, within public view," the
Commission adopted notice and reporting procedures concerning its
informal contacts with foreign administrators (id. at 84a).

   4. While its rulemaking petition was pending (see Pet. App. 12a),
ITT filed suit against the Commission in the United States District
Court for the District of Columbia.  One count of the complaint
alleged that the Commissioners were acting ultra vires by engaging in
impermissible "negotiations" at the Consultative Process (J.A. 63-69).
 Another count alleged that Consultative Process sessions were
"meetings of (the FCC)" for purposes of the Sunshine Act, and that the
Commission had violated the Act by excluding ITT and other carriers
from them (id. at 69-71).  In support of its motion for summary
judgment on the latter count, ITT submitted a "Statement of Material
Facts" (id. at 170-172) alleging that there were no material facts in
dispute, and that ITT was entitled to summary judgment because it had
been excluded from the Consultative Process and certain statements had
been "made by the FCC and its representatives at, or with respect to,"
those sessions.  ITT asked the court "to rely solely on (these)
statements," which, in its view, established as a matter of law that
"the FCC (was) engaged in the 'conduct or disposition of official
agency business'" at the Consultative Process (id. at 164).  /4/

   The district court dismissed the ultra vires count for lack of
jurisdiction (Pet. App. 61a-63a).  The court "seriously doubt(ed)"
that it had subject matter jurisdiction, noting that ITT "sought
essentially the same relief in 402(a) "(j)urisdiction over appeals
from FCC orders rests exclusively in the Court of Appeals." Pet. App.
62a.  The court saw no need to decide that question, however, because
it concluded that ITT lacked standing and that the case was not ripe
for review.  /5/

   The district court granted ITT's motion for summary judgment on the
Sunshine Act count, holding that Consultative Process conferences are
"meetings of (the FCC)" within the meaning of the Act.  The court
stated that the Commission "can(not) deny that FCC business is
'conducted'" at those sessions (Pet. App. 65a).  The court also
determined that the three attending Commissioners "ha(d) been
delegated the authority to act for the FCC," asserting that "(i)t is
beyond dispute that (they were) authorized to submit recommendations
to the full Commission" and that "(i)t cannot be contested that the
(Consultative Process) is designed to effectuate the decision-making
process" (id. at 66a).  The court enjoined the FCC to "comply with the
* * * Sunshine Act * * * forthwith" (id. at 59a), although it stayed
its order for three weeks to permit a previously scheduled
Consultative Process session to be held in Madrid, Spain, provided
that the session was "memorialized in transcript form" (id. at 68a).
/6/

   5. The court of appeals consolidated ITT's petition for review of
the order denying rulemaking with cross-appeals from the district
court's judgment.  It reversed the district court's dismissal of the
ultra vires count (Pet. App. 13a-21a), reversed in part the FCC's
denial of rulemaking (id. at 45a-53a), and held that the Sunshine Act
applies to the Consultative Process (id. at 34a-45a).

   a. Conceding that "(a) strong presumption against concurrent
district court jurisdiction would be appropriate if the issues
presented by ITT's rulemaking petition and its ultra vires count were
indeed identical," the court of appeals determined that the issues
were actually "very different" (Pet. App. 14a).  Whereas the
rulemaking petition, as the court of appeals read it, asked the FCC to
declare "that 'negotiation' (was) outside the scope of (its)
authority," ITT's ultra vires count alleged "that the Commission,
irrespective of what it acknowledges as the proper scope of its
authority, has in fact secretly exceeded that authority and will not
admit to having done so" (ibid.).  The court viewed the rulemaking
record as "manifestly inadequate" to permit appellate review and
concluded that ITT's "colorable ultra vires claim can therefore be
tested only through the kind of independent, de novo factfinding
appropriate in the district court" (id. at 15a).

   b. Again citing the "patent() inadequa(cy)" of the record, the
court of appeals reversed the Commission's denial of ITT's rulemaking
petition (Pet. App. 48a).  The court, however, declined to follow the
"normal course" of simply remanding to the agency with instructions
"to consider the issues further and develop an adequate record for
judicial review," noting that it was remanding the ultra vires count
to the district court with instructions to do precisely the same thing
(id. at 51a).  The court allowed that there might be some "tension in
such a 'double remand.'" Indeed, it acknowledged that "the practical
effect of (its) decision (was) fraught with the potential for
duplication, conflicting resolutions, and further delay" (ibid.).  Yet
it concluded that these difficulties were "largely of the Commission's
own making," and suggested that the FCC minimize them "through the
simple expedient of staying further action of ITT's rulemaking
petition pending the district court's resolution of the ultra vires
issue" (id. at 51a-52a).

   c. Turning to the Sunshine Act, the court of appeals held that
Consultative Process sessions were "meetings of (the FCC)" as defined
in 5 U.S.C. 552b.  First, the court determined that the attending
Commissioners were a "subdivision * * * authorized to act on behalf of
the agency." 5 U.S.C. 552b(a)(1).  The court acknowledged (Pet. App.
36a) that a subdivision of the FCC can properly be authorized to act
on its behalf only by an express delegation of power pursuant to 47
U.S.C. 155(d)(1).  The court likewise acknowledged (Pet. App. 36a)
that no such delegation of power had been made to the Commissioners
attending the Consultative Process.  But the court inferred that such
authority had nevertheless been granted -- unofficially and in
violation of the Communications Act -- reasoning that the
Commissioners attended "in their 'official roles,'" that "their goal
(was) to build a 'consensus' that will 'lead ultimately to operating
agreements for ITT's competitors,'" and that "they convey the
information and views 'exchanged' at the meetings to the full
Commission for its consideration" (id. at 37a).

   The court of appeals also concluded that the Consultative Process
discussions were "deliberations (that) determine or result in the
joint conduct or disposition of official (FCC) business." 5 U.S.C.
552b(a)(2).  The court remarked (Pet. App. 37a) that the term
"deliberations" might be "read narrowly to encompass solely the
internal process of weighing and examining proposals that precedes a
formal decision," but it did not explain why it declined to adopt that
reading or how the term could be read otherwise.  The court relied
heavily on a sentence in the legislative history of the Sunshine Act
stating that the term "meeting" was meant to encompass "hearings and
meetings with the public" (id. at 38a, quoting S. Rep. 94-354, supra,
at 18), and concluded that the FCC "ha(d) advanced no reason to
distinguish" Consultative Process discussions from such gatherings
(Pet. App. 38a).  Finally, the court deemed the Consultative Process
to "involve() agency business of the first import" because the
information gathered there "is essential in (the FCC's) deliberations
regarding the future structure of international communications" and
because the sessions are designed to achieve a "'consensus' and
'favorable climate' with foreign administrations" on the subject of
new services (id. at 39a).

                          SUMMARY OF ARGUMENT

   I. Congress enacted the Sunshine Act to open agencies'
"decisionmaking processes" to public view, yet at the same time to
protect agencies' ability to discharge their regulatory
responsibilities efficiently.  That being Congress's goal, common
sense suggests that the Act's open meeting rules should apply only to
relatively formal sessions at which agency members with decisionmaking
authority deliberate over concrete proposals for action and reach
fairly firm views about the pending proposals.  Common sense likewise
suggests that the meetings at which these events occur must be
conducted by the agency, for otherwise the agency would be in no
position to ensure compliance with the Act's various strictures.

   Happily, the statute's language and legislative history vindicate
this common sense view.  The Act applies only to "meeting(s) of an
agency," as defined, and its openmeeting rules thus come into play
only if a gathering satisfies four discrete tests.  The people who
attend must constitute a quorum of the agency or of a "subdivision
authorized to act on (its) behlaf." 5 U.S.C. 552b(a)(1).  The
attending members must engage in deliberations," that is,
"consideration and discussion of alternatives before reaching a
decision." Webster's New World Dictionary 373 (2d college ed. 1974).
The deliberations must "determine or result in the joint conduct or
disposition of official agency business," that is, must involve
"discussions which effectively predetermine official actions." S. Rep.
94-354, supra, at 19.  And the "meeting" must be a "meeting of (the)
agency," that is must be run by the agency and be within its control.

   The Consultative Process sessions did not satisfy any of these
tests.  First, the Commissioners who attended were neither a quorum of
the FCC nor a quorum of a subdivision authorized to act on its behalf.
 Under the Communications Act, the Commission may authorize a
subdivision to act on its behalf only by a formal delegation of power,
and it is conceded that no such delegation was effected here.  Second,
the Consultative Process discussions did not constitute
"deliberations," for they involved, not a formal evaluation of
concrete proposals, but an informal exchange of views on extremely
general topics, and had no relationship to any FCC decision, pending
or prospective.  Third, the discussions did not "predetermine official
actions," both because they did not involve any matter pending or
likely to arise before the FCC, and because, given their informal
nature, they could not have caused the attending Commissioners' views
on any issue to become "fixed." Finally, even if the Consultative
Process sessions were "meetings," they were not "meetings of (the
FCC)." The conferences were held on foreign soil, hosted by foreign
officials, and attended by foreign representatives who outnumbered the
Commissioners and equalled them in rank.  Under these circumstances,
the attending Commissioners were in no position to dictate the terms
of the gatherings, to decide unilaterally whether they would be open
to the public, or to decree that they be governed by United States
law.  Faced with foreign objections to American open-meeting rules,
the Commissioners would have been forced to choose between the
meetings or violating the Sunshine Act, a Hobson's choice that
Congress cannot possibly have envisioned. .  II. The court of appeals
likewise erred in sustaining district court jurisdiction of ITT's
ultra vires claim.  ITT presented a substantially identical ultra
vires argument to the FCC, and the Commission fully addressed that
argument in its order denying rulemaking.  It is hornbook
administrative law that review of the FCC's order was committed
exclusively to the court of appeals.  In holding otherwise, the court
below has licensed collateral attacks on agency orders, in
contravention of this Court's decisions, that will seriously disrupt
the administrative process.

                               ARGUMENT

 I. THE CONSULTATIVE PROCESS SESSIONS WERE NOT MEETINGS OF THE FCC,
AND THUS WERE NOT SUBJECT TO THE SUNSHINE ACT'S OPEN MEETING
REQUIREMENTS

   In passing the Sunshine Act, Congress struck a balance between two
principles.  On the one hand, it declared that "the public is entitled
to the fullest practicable information regarding the decisionmaking
processes of the Federal Government." Pub. L. No. 94-409, Section 2,
90 Stat. 1241.  On the other hand, it stressed that enhanced public
access must be accomplished "while protecting * * * the ability of the
Government to carry out its responsibilities" (ibid.).  Congress
endeavored to accommodate these principles by crafting detailed
definitions of the Act's operative terms.  These definitions, like
those contained in the Freedom of Information Act, indicate that,
while "Congress undoubtedly sought to expand public rights of access
to Government information(,) * * * that expansion was a finite one."
Forsham v. Harris, 445 U.S. 169, 178 (1980).  The question presented
here, accordingly, is not to be resolved, as the court of appeals
evidently believed, by generalized incantations about the Act's "broad
sweep" (Pet. App. 39a, 44a) or its "presumption of openness" (id. at
40a, 42a, 43a, 44a).  The Sunshine Act "sweeps" only as broadly as its
words, construed in light of English usage and legislative intent,
permit.

   The Sunshine Act applies to "meeting(s) of an agency." 5 U.S.C.
552b.  It defines "agency" to mean a "collegial body" consisting of
two or more presidential appointees, including "any subdivision
thereof authorized to act on behalf of the agency." 5 U.S.C.
552b(a)(1).  It defines "meeting" to mean "the deliberations of at
least the number of individual agency members required to take action
on behalf of the agency where such deliberations determine or result
in the joint conduct or disposition of official agency business." 5
U.S.C. 552b(a)(2).  Thus, a gathering attended by agency members is
covered by the Sunshine Act only if four distinct elements are
present:  (1) the attending members must constitute a quorum of the
full agency or of a "subdivision thereof authorized to act on behalf
of the agency";  (2) the attending members must engage in
"deliberations";  (3) the deliberations must "determine or result in
the joint conduct or disposition of official agency business";  and
(4) the gathering must be a "meeting of (the) agency." Absent any one
of these elements, the Sunshine Act's openmeeting rules do not apply.
Not one of these prerequisites was met here.

 A. The Consultative Process sessions were attended neither by a
quorum of the FCC nor by a quorum of a subdivision authorized to act
on its behalf

   1. It is undisputed that a "quorum" of the Commission -- i.e., "the
number of individual (FCC) members required to take action on (its)
behalf" -- was not present at any Consultative Process discussion.  At
all relevant times, the Commission had seven members, and a quorum was
four.  47 U.S.C. 154(h).  /7/ No more than three Commissioners,
however, ever participated in the Consultative Process.  As the court
of appeals noted (Pet. App. 2a, 36a), the three attending
Commissioners were also members of, and represented a quorum of, the
"Telecommunications Committee," which is a subdivision of the FCC.
But it is clear that these Commissioners were not "authorized to act
on behalf of the (FCC)" at those gatherings.

   The Communications Act permits the Commission to delegate certain
of its functions to a "panel of commissioners (or) an individual
commissioner." 47 U.S.C. 155(d)(1).  /8/ Such delegation of authority
may be made only "by published rule or by order," and "(a)ny such rule
or order may be adopted, amended, or rescinded only by a vote of a
majority of the members of the Commission then holding office"
(ibid.).  The Telecommunications Committee is one of the FCC's two
standing committees (47 C.F.R. 0.4).  The Commission by rule has
delegated specific, limited functions to that Committee, i.e., the
authority to act upon applications by common carriers for certificates
of public convenience (47 U.S.C. 214) and the authority to act upon
certain applications for radio construction permits (47 U.S.C. 319).
See 47 C.F.R. 0.215.  It has never been suggested that the attending
Commissioners performed either of these functions at the Consultative
Process.  Nor has the FCC, "by published rule or by order," delegated
the Telecommunications Committee authority to perform any other
function there.  The attending Commissioners, therefore, having
received no delegation of authority under 47 U.S.C. 155(d)(1), were
not "authorized to act on behalf of the (Commission)" at those
sessions, and, had they purported so to act, their actions would have
been void.

   2. The court of appeals, while acknowledging that the attending
Commissioners had received no express delegation of authority,
nevertheless concluded (Pet. App. 36a) that the Commission had
conferred such authorization unofficially.  The court inferred a sub
rosa delegation of authority from the facts that the Commissioners
attended in their "official roles," that their goal was to "build a
'consensus,'" and that they "convey(ed) the information and views
'exchanged'" to the full Commission upon their return (id. at
36a-37a).  This reasoning cannot withstand analysis.

   a. To begin with, the court of appeals cited no authority (and we
know of none) for the proposition that, where there exists an express
"delegation of powers" provision in an agency's organic statute, the
agency may nevertheless authorize members to act on its behalf by
informal and unofficial means.  Indeed, the court of appeals assumed
(Pet. App. 36a) that the FCC had conferred the supposed
"authorization" illegally, and proceeded to direct that the attending
Commissioners henceforth play their role in the Consultative Process
"only pursuant to a proper and precise delegation of authority from
the Commission" (id. at 53a).  The court of appeals' assumption of an
illegal delegation, based entirely on inference, is wholly contrary to
the presumption of regularity normally accorded agency action.  See
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415
(1971);  United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15
(1926).

   b. Even if an unofficial delegation of authority were possible
under the Communications Act, the language and operation of the
Sunshine Act indicate that a "subdivision" is not "authorized to act
on behalf of the agency" /9/ absent officially delegated power.  The
word "subdivision" connotes a body that has been officially created
and that has well-defined duties.  Indeed, a leading treatise on the
Sunshine Act concludes that, "(a)t a minimum, a subdivision must have
a specified membership and fixed responsibilities;  an informal
working group authorized to report back to the body is not a
subdivision." R. Berg & S. Klitzman, An Interpretive Guide to the
Government in the Sunshine Act 3 (1978) (hereinafter cited as
Interpretive Guide).  Because the term "subdivision" betokens a
reasonable level of formality, its use presupposes an official
delegation of power.

   The quorum requirement likewise suggests that a "subdivision" must
be an entity empowered to take official action capable of binding the
agency, rather than a loose group informally assigned to assist it in
some way.  A quorum, obviously, is not necessary to perform duties of
the later sort, and it is difficult to see why Congress included the
quorum rule if it intended the Act to cover groups that discharge only
such tasks.  Rather, a quorum is needed to take formal action that at
some stage will require a vote.  The quorum requirement thus makes
perfect sense if the Act is construed to reach only those agency
subdivisions possessing officially delegated powers.

   The "collegiality" requirement, finally, militates against the
court of appeals' "informal authorization" theory.  For Sunshine Act
purposes, a "subdivision," like its parent agency, must funtion as a
"collegial body." See Interpretive Guide 3.  A "collegial" body is one
"with authority or power shared equally among colleagues." Webster's
New World Dictionary 279 (2d college ed. 1974).  Agency members act
"collegially" when they debate and vote on proposals with the majority
view prevailing, actions of the sort for which an official delegation
of authority is needed.  It is hard to see how agency members act
"collegially" when they attend an informal gathering in Europe and
report on what they heard.  Such action is not predicated on an "equal
sharing" of power;  indeed, it has nothing to do with the exercise of
power at all.  /10/

   c. Even if an informal delegation of authority were sufficient for
Sunshine Act purposes, the court of appeals offered no convincing
explanation of what it was that the attending Commissioners were
unofficially authorized to do.  ITT consistently has asserted that the
Commissioners were "negotiating" with their European counterparts.
All parties to the case agree, however, that the FCC has no authority
to "negotiate" with foreign governments (see page 6, supra), and an
agency obviously cannot delegate authority that it does not possess.
The Commission (Pet. App. 80a & n.5, 83a;  J.A. 121-122) and the
attending Commissioners (J.A. 175) repeatedly stated that the latter
were not authorized to act for the FCC in any way, but the court of
appeals dismissed these averments as "vague" and "conclusory" (Pet.
App. 45a n.179).  The court noted (id. at 36a-37a) that the
Commissioners attended in their "official roles" and sought to "build
a 'consensus,'" but it is hard to construe this as "taking action on
behalf of the FCC." At bottom, the court of appeals seems to have
based its inference of unofficial authorization on the fact that the
attending Commissioners "convey the information and views 'exchanged'
at the (Consultative Process) to the full Commission for its
consideration" (id. at 37a).  The legislative history plainly shows,
however, that this does not constitute "act(ion) on behalf of the
(FCC)" either.

   Congress frequently manifested its understanding that a
"subdivision" for Sunshine Act purposes "need not have authority to
take agency action which is final in nature." S. Rep. 94-354, supra,
at 17.  "It is not sufficient for the purposes of open government,"
the Senate Report explained, merely to "have the public witness final
agency votes," or to have open meetings be "reruns staged for the
public after agency members have discussed the issue in private and
determined their views." Id. at 18.  The Report accordingly says that
"(p)anels or boards composed of two or more agency members and
authorized to submit recommendations, preliminary decisions, or the
like to the full commission, or to conduct hearings on behalf of the
agency, are required * * * to open their meetings to the public." Id.
at 17.  Accord, H.R. Rep. 94-880 (Pt. I), 94th Cong., 2d Sess. 7
(1976).

   The district court (Pet. App. 66a) and the court of appeals (id. at
39a) seized upon this language to support an inference of delegation,
on the theory that the attending Commissioners were "authorized to
submit recommendations" to the FCC.  But it seems clear that the
Senate Report, in referring to "submi(ssion of) recommendations," had
more in mind than "conveyance of information and views." The Report
speaks of subdivisions authorized "to conduct hearings" and "to submit
recommendations, preliminary decisions, or the like." The conduct of
hearings and the submission of preliminary decisions are
well-recognized forms of agency action, and both possess a high degree
of formality.  Employing the principle of noscitur a sociis (see
National Muffler Dealers Ass'n, Inc. v. United States, 440 U.S. 472,
475, 487-488 (1979)), it would seem that "submi(ting) recommendations"
likewise denotes a step more formal than simply "coming back and
telling the Commission what happened." Indeed, the leading treatise on
the Sunshine Act concludes that, "where a committee of members has
been directed to draw up and submit an informal recommendation to the
full collegial body, which recommendation is then open to full
consideration by the body, it is hard to regard such an assignment as
an authorization to act on behalf of the agency in any meaningful
sense." Interpretive Guide 2-3.  See id. at 3 (concluding that "an
informal working group authorized to report back to the (agency)" is
not a subdivision authorized to act on its behalf).

   By basing an inference that the attending Commissioners were
"unofficially authorized" to act for the FCC on a finding that "they
convey the information and views 'exchanged' * * * to the full
Commission" (Pet. App. 37a), the court of appeals has twisted both the
legislative history and the English language out of recognizable
shape.  Authorization "to act on behlaf of an agency" means more than
to "be present," to "discuss agency matters," or to "report what
transpired." If it did not, agency members would be deemed to have
"acted on behalf of the agency" each time they went to a lecture,
attended a briefing session, or participated in a continuing legal
education seminar.  High-level government officials have a duty to
educate themselves about their work, and Congress can scarcely have
intended that the Sunshine Act will apply -- without more -- unless
they remain mute about what they learn.

   d. Finally, the court of appeals' "unofficial delegation" theory
portends practical problems of no small scope.  If the Sunshine Act
were satisfied by unofficial authorization or by authorization in
contravention of governing statutes and rules, a colorable
open-meeting claim could be asserted when agency members engage in any
activity related to their regulatory tasks.  Persons asserting claims
of sub rosa authorization would predictably demand the right to
discover all information bearing on the question, and such evidentiary
proceedings would obviously create potential for harassment and
interference with the agency's proper functioning.  Such a doctrine,
moreover, would make it impossible to administer the Sunshine Act in
accord with Congress's intent.  The statute, with its requirements
that the time, place, subject matter, and open-or-closed status of a
meeting be announced in advance, is predicated on the assumption that
an agency can know ahead of time whether a gathering will be a
"meeting" or not.  If this determination hinges on an appellate
court's inference about whether attending members, despite their
repeated protestations to the contrary, have been endowed with sub
rosa delegations of authority, the Act's prospective rules will be
unadministrable.

 B. The Consultative Process sessions did not involve "deliberations"

   The Sunshine Act defines "meeting" to mean "the deliberations" of a
quorum.  5 U.S.C. 552b(a)(2).  The court of appeals itself suggested a
useful definition of the word "deliberations," explaining (Pet. App.
37a) that it might be read "to encompass solely the internal process
of weighing and examining proposals that precedes a formal decision by
the agency." The court refused to adopt that construction, or to
propose any other, and declined to explain why.  Yet the language and
legislative history of the statute show that the reading the court
rejected is correct.

   The word "deliberations" is defined as "consideration and
discussion of alternatives before reaching a decision." Webster's New
World Dictionary 373 (2d college ed. 1974);  see Black's Law
Dictionary 384 (5th ed. 1970).  As used in the Sunshine Act, the term
presupposes a "discussion which is sufficiently focused on discrete
proposals or issues" to cause participants to form reasonably firm
views (Interpretive Guide 9).  The term thus excludes the furnishing
of information or the exchange of views when no concrete proposal is
presented for decision.

   The evolution of the statute's language shows that "deliberations"
should be read in this narrow, dictionary sense.  The House bill, as
reported by the Judiciary Committee, defined "meeting" as "an assembly
or simultaneous communication" concerning agency business.  H.R.
11656, 94th Cong., 2d Sess. Section 552b(a)(2) (1976).  The definition
was amended on the floor to read, "a gathering to jointly conduct * *
* agency business," and passed the House in that form.  122 Cong. Rec.
24203 (1976).  The Senate bill originally defined "meeting" as "any
procedure by which official agency business is considered or
discussed." S. 5, 94th Cong., 1st Sess. Section 201(a) (1975);  see
121 Cong. Rec. 244 (1975).  The definition was subsequently revised to
read, "a gathering, electronically or in person, (which) results in
the consideration" of agency business.  S. 5, Section 201(a), S. Comm.
Print No. 2, 94th Cong., 1st Sess. (1975).  As reported by the Senate
Government Operations Committee, however, the definition was amended
to read much as it now does, i.e., "the deliberations of (a quorum)
where such deliberations concern the joint conduct or disposition of
official agency business." S. 5, 94th Cong., 1st Sess. Section 201(a)
(1975) (emphasis added).  The Senate Report explained that this
redrafting was designed "to exclude many discussions which are
informal in nature." S. Rep. 94-354, supra, at 10.  Indeed, the Report
states (id. at 18) that the word "deliberations" was "carefully chosen
to indicate that some degree of formality is required before a
gathering is considered a meeting for purposes of (the Act)." The
Conference Report, with a modification not relevant here, adopted "the
Senate definition, as explained in the Senate report." S. Conf. Rep.
94-1178, 94th Cong., 2d Sess. 11 (1976).  In consciously choosing the
word "deliberations" in lieu of words like "gathering," "assembly,"
"procedure," or "communication," Congress surely suggested that the
term should be construed, in the court of appeals' words, "to
encompass solely the internal process of weighing and examining
proposals that precedes a formal decision by the agency." /11/

   The Consultative Process discussions, as the court below
recognized, cannot possibly be held to constitute "deliberations"
under this standard.  Those talks consisted, not of a formal
evaluation of concrete proposals, but of an informal exchange of views
on extremely general subjects.  See pages 4-5, supra.  The information
the Commissioners gathered did not precede, and had no relationship
to, any formal decision, pending or prospective.  /12/ Indeed, to the
extent that the Consultative Process related to any FCC decision at
all, it related to the Telenet and Graphnet decisions that the
Commission had already made, decisions whose procompetitive rationale
the attending Commissioners sought to explain, and whose
procompetitive effects they urged their foreign counterparts to help
realize.

 C. The Consultative Process sessions did not "determine or result in
the joint conduct or disposition of official agency business"

   The Sunshine Act defines "meeting" to include agency deliberations
only "where such deliberations determine or result in the joint
conduct or disposition of official agency business." The legislative
history (see page 22, supra) makes clear that the reach of this
language is not confined to gatherings at which final votes are taken.
 Yet it is equally clear that its reach does not extend to informal
sessions, like those involved here, where agency business is simply
discussed.

   1. The evolution of the statutory language reveals a deliberate
effort by Congress to narrow the categories of gatherings subject to
the Act's openmeeting rules.  The Senate bill, as passed by that
chamber, covered deliberations that "concern the joint conduct or
disposition of official agency business." S. 5, 94th Cong., 1st Sess.
Section 4(a) (1975).  Early versions of the House bill read the same.
See, e.g., H.R. 9868, 94th Cong., 1st Sess. Section 4(a) (1975);  H.R.
10315, 94th Cong., 1st Sess. Section 552b(a)(2) (1975).  The House
Government Operations Committee, however, amended the formula by
omitting the word "official." H.R. 11656, 94th Cong., 2d Sess. Section
552b(a)(2) (1976).  The Judiciary Committee followed suit.  H.R.
11656, 94th Cong., 2d Sess. Section 552b(a)(2) (1976).  Representative
Horton noted that this omission had the effect of "immediately
broaden(ing) the range of member conversations which (the bill)
covered." 122 Cong. Rec. 24203 (1976).  The definition was somewhat
tightened on the floor by defining "meetings" with reference to their
purpose, but in the definition as it passed the House -- "a gathering
to jointly conduct or dispose of agency business" -- the word
"official" was still left out.  122 Cong. Rec. 24203 (1976).

   The Conference Report adopted the Senate definition, with its
"official business" gloss, but made one significant modification.
Whereas S. 5 had referred to deliberations that "concern the joint
conduct or disposition of official agency business," the statute as
enacted refers to deliberations that "determine or result in the joint
conduct or disposition of official agency business." The Congerence
Report highlights, but does not expalin, this change.  See S. Conf.
Rep. 94-1178, supra, at 11.  Representative Fascell, however, a member
of the Conference Committee and one of the bill's chief sponsors, said
that the substituted language was "intended to permit casual
discussions between agency members that might invoke the bill's
requirements under the less formal 'concern' standard." 122 Cong. Rec.
28474 (1976).  See Interpretive Guide 7 (noting that the substituted
language "can only be interpreted as intending some limiting and
narrowing effect").

   2. The committee reports show that Congress, in restricting the
definition of "meeting" to deliberations that determine or result in
the conduct or disposition of official agency business, intended to
reach only formal sessions where members' positions on a matter become
fixed.  The Senate Report states that the key consideration is whether
"agency members have discussed the issue * * * and predetermined their
views," that an agency's deliberations "cross over the line" and
become a "meeting" when members "engage in discussions which
effectively predetermine official actions." S. Rep. 94-354, supra, at
18, 19 (emphasis added).  A leading treatise on the Sunshine Act
likewise concludes that "the controlling distinction is between
discussions which 'effectively predetermine official actions' and
those which do not." Interpretive Guide 6.  See id. at 8.

   At the same time, the legislative history shows that informal,
exploratory talks are outside the Act's scope.  The Senate Report says
that "meetings" exclude "informal and preliminary" discussions, and
that "(i)t (was) not the intent of the bill to prevent * * * agency
members * * * from engaging in informal background discussions which
clarify issues and expose varying views." S. Rep. 94-354, supra, at
19.  /13/ The test is whether the discussion is "decision-oriented,"
that is, "sufficiently focused on discrete proposals or issues as to
cause or be likely to cause the individual participating members to
form reasonably firm positions regarding matters pending or likely to
arise before the agency." Interpretive Guide 9 & n.16.

   3. There can be little question that the Consultative Process
discussions did not constitute "meetings" under this standard.  It is
no doubt true, in the court of appeals' words (Pet. App. 38a), that
the discussions "involve(d) agency business," in the sense that the
Commissioners attended as Commissioners, rather than as tourists, and
that they broached matters of importance to the FCC.  But it is not
sufficient that discussions "involve" or "concern" agency business.
The statute says that they must "determine or result in the joint
conduct or disposition of official agency business."

   The Consultative Process discussions did not do that.  The court
below did not identify any action of the FCC, or any position of its
individual Commissioners, that became "predetermined" or "fixed" at
those gatherings.  Nor did the court find the discussions to have
focused on any concrete proposal pending or likely to arise before the
agency.  Rather, the Consultative Process sessions involved precisely
the sort of "informal background discussions" that, according to the
Senate Report, the Sunshine Act was not meant to cover.  Those
attending the gatherings constantly referred to -- indeed, repeatedly
insisted upon -- the sessions' "informality." See pages 4-5, supra.
And, to the extent that the Commissioners sought the views of foreign
administrations, it was as a background for future FCC decisionmaking,
decisionmaking that would in the normal course itself be subject to
the Act's openmeeting rules.

   4. In support of its conclusion that the Consultative Process
"determined or resulted in the joint conduct or disposition of
official (FCC) business," the court of appeals asserted that "(t)hese
encounters play an integral role in the Commission's policymaking
processes in at least two ways" (Pet. App. 38a).  First, the court
observed (id. at 38a-39a) that "the meetings are an important means
for gathering information and opinions from foreign administrations"
and that this information would be useful in future FCC deliberations.
 This observation, while correct, is irrelevant to the proposition the
court set out to prove.  The fact that discussions yield useful data
for future decisionmaking -- "informal background discussions" do just
that -- does not mean that they "effectively predetermine official
actions" (S. Rep. 94-354, supra, at 19).

   Second, the court of appeals found (Pet. App. 39a) that the FCC had
chosen the Consultative Process "as the vehicle to assist Graphnet and
Telenet in obtaining interconnection agreements." However, assuming
arguendo the accuracy of this finding, such efforts on the part of the
attending Commissioners did not "predetermine" any FCC position or
relate to any matter pending or likely to arise before it, since the
Commission had already issued final decisions authorizing Graphnet and
Telenet to enter the trans-atlantic market.  /14/ Rather, the
Commissioners sought merely to explain the basis for, and thus
facilitate the implementation of, decisions the FCC had previously
made.  Although the court of appeals believed that the "broad sweep of
the Sunshine Act does not support a distinction between an agency's
predecisional activities and its postdecisional efforts to implement,
interpret, and promote its policies" (Pet. App. 39a), that belief was
ill-founded.  The goal of the Sunshine Act, as expressed in its
preamble, was to give the public the fullest practicable information
about "the decisionmaking processes" of the government.  Pub. L. No.
94-409, Section 2, 90 Stat. 1241.  The legislative history
consistently echoes this theme.  See, e.g., S. Rep. 94-354, supra, at
11, 17, 18.  Once does not need a dictionary to recognize that
"postdecisional" efforts to explain a decision are not part of "the
decisionmaking process." See NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 151-152 (1975).

   5. Finally, the court of appeals (Pet. App. 38a) sought support in
the legislative history for its conclusion that the Consultative
Process "determined or resulted in the joint conduct or disposition of
official (FCC) business." Both the Senate and House Reports state that
panels authorized "to conduct hearings on behalf of the agency" must
open their meetings to the public.  See page 22, supra.  And the
Senate Report says that, "(i)n addition to business meetings of the
agency, (the term 'meeting') includes hearings and meetings with the
public." S. Rep. 94-354, supra, at 18.  The court of appeals cited
these three passages and held that the FCC "ha(d) advanced no reason
to distinguish the (Consultative Process discussions) from 'hearings'
or 'meetings with the public'" (Pet. App. 38a).

   The court of appeals "read too much into these scattered bits of
legislative history." Pennhurst State School v. Halderman, 451 U.S. 1,
20 (1981).  To begin with, there is a vast difference between "agency
hearings" and the international consultations involved here.  Hearings
are usually formal, focus upon a particular problem or proposal, and
are generally open to the public.  /15/ Earlier drafts of the Sunshine
Act had defined "meeting" explicitly to include "meetings to conduct
hearings," /16/ and both Reports suggest (see pages 22-23, supra) that
the "conduct of hearings" should be read in pari materia with "the
submission of preliminary decisions," i.e., as exemplifying formal and
decision-oriented agency action.

   Nor does the statement that "meeting" includes "meetings with the
public" justify the court of appeals' result.  The court viewed that
statement (see Pet. App. 42a-43a) as establishing a virtual per se
rule that discussions with outsiders are "meetings" for Sunshine Act
purposes.  That plainly was not the intendment of the Senate Report.
The Report surely meant to signify no more in the quoted passage than
it did in a passage three pages earlier, where it stated that
"meeting" includes "meetings of (an agency) when agency staff or
outside individuals are also present." S. Rep. 94-354, supra, at 15
(emphasis added).  Both passages indicate (quite properly) that, if an
agency gathering otherwise qualifies as a "meeting" under Section
552b(a)(2), the "meeting" is no less a "meeting" because outside
parties happen to be there.  The passages cannot be read to suggest
that the attendance vel non of outside parties is a relevant
consideration in determining whether the gathering is a "meeting" to
begin with.  Indeed, any such suggestion would contradict Section
552b(a)(2), which says that the only persons whose attendance is
relevant are "agency members."

  D. The Consultative Process sessions were not "meetings of the FCC"

   The Sunshine Act's open-meeting requirements apply only to
"meeting(s) of an agency" (5 U.S.C. 552b(b)).  Even if the
Consultative Process sessions were "meetings," therefore, they would
not be covered by the Act unless they were also shown to be "meetings
of (the FCC)." The circumstances under which the sessions were held
make it clear that they cannot be so denominated.

   The structure of the Sunshine Act shows that a meeting does not
become a "meeting of (the) agency" merely because some agency members
happen to be present.  Rather, the Act's operative provisions
uniformly proceed on the assumption that "an agency meeting" (5 U.S.C.
552b(c)) is a meeting that is run by, and under the control of, the
agency in question.  The procedures for closing a meeting, for
example, presume that the agency is in a position unilaterally to
decide, "by recorded vote," whether the meeting will be open to the
public (5 U.S.C. 552b(d)(1) and (2)).  The Act permits an agency to
"provide by regulation for the closing of (certain) meetings,"
evidently assuming that the agency's regulations will bind all
concerned (5 U.S.C. 552b(d)(4)).  The Act's notice provisions are
predicated on the assumption that the agency is in a position to
prescribe the meeting's time, place, and subject matter, and to
dictate any changes therein "by a recorded vote," solely by reference
to whether "agency business so requires" (5 U.S.C. 552b(e)(1) and
(2)).  The Act states that "(t)he agency shall make promptly available
to the public" the transcript of any closed meeting, evidently
assuming that the agency has discretion to make such disclosure
unilaterally (5 U.S.C. 552b(f)(2)).  And the Act assumes that the
"presiding officer" of the meeting will be an agency member (5 U.S.C.
552b(f)(1)).

   The Consultative Process sessions were plainly not run by the
attending Commissioners or within their unilateral control.  Those
sessions were hosted by foreign governments and were held on foreign
soil.  They were variously attended by representatives of six or more
foreign countries.  The foreign attendees were officials of national
telecommunications agencies;  they outnumbered the attending
Commissioners and equalled them in rank.  Under these circumstances,
the attending Commissioners were in no position to decide unilaterally
whether the sessions would be open or closed, to decree that the
sessions would be governed by FCC regulations, or to dictate changes
in their format as "(FCC) business * * * require(d)." indeed, any such
attempt would have implied that the gatherings were subject to
American regulatory constraints, whereas the whole point of the
Consultative Process was to enable "foreign entities (to) participate
without being subjected 'to U.S. regulatory jurisdiction in fact or
appearance.'" Pet. App. 79a, quoting In re AT&T Co., 73 F.C.C.2d 248,
254 (1979).  Faced with foreign objections, the Commissioners would
have had to choose between forgoing the sessions or violating the
Sunshine Act.  This Hobson's choice would in effect have converted the
Act's procedural rules into a substantive restriction of FCC action,
contrary to Congress's explicit intent not to "change( ) the
substantive laws governing * * * any agency." S. Rep. 94-354, supra,
at 1.

   Common sense likewise suggests that international meetings attended
by representatives of this country are not "meetings of (the) agency"
in question.  Congress surely recognized that foreign nations'
progress toward "government in the sunshine" was less precipitous than
ours, and surely realized that foreign officials would bristle at
being subjected to such peculiarly American rules.  Congress generally
acts circumspectly when extending the jurisdiction of our laws
extraterritorially, and there is nothing in the statute or its
legislative history to suggest such a design here.  The exceptions to
the Act's openmeeting requirements are couched in terms of United
States law (see, e.g., 5 U.S.C. 552b(c)(1), (3) and (10)), and would
thus prevent foreign participants from demanding closure of a session,
even though they might allege policy grounds identical to those
underlying the statutory exceptions.  These considerations counsel
against regarding the Dublin, Ascot, and Madrid multinational
gatherings as "meetings of the FCC." /17/

   Finally, strong considerations of policy and practicality militate
against the court of appeals' result.  Its decision, taken as a whole,
gives the words "meeting of an agency" no coherent denotation.  In
limiting the term only by such vague strictures as the requirement
that discussions "involve agency business of the first import" or
"play an integral role in the (agency's) policymaking processes" (Pet.
App. 38a), the opinion gives the courts vast, ad hoc discretion to
expand the Act's coverage in unpredictable ways.  A "meeting" will be
deemed to have occurred whenever a court concludes that something
meaningful was said.

   More importantly, the decision below will severely impede agency
consultations with their foreign counterparts, in defiance of
Congress's intention that the Sunshine Act not impose substantive
restrictions on agency action.  Rapid technological advances have
heightened the need for international coordination in many regulatory
fields, from banking and telecommunications to shipping and aviation.
Such coordination demands that administrators from different countries
understand each other's objectives and strategies, as well as the
technical, economic, legal and political constraints under which they
work.  This mutual understanding is often achieved best through
face-to-face conferences at which officials engage in free-wheeling,
wide-ranging, and informal discussions.  If such gatherings must be
open to the public, be recorded or transcribed, and be governed by a
formal agenda, their utility -- assuming that foreign representatives
are willing to participate at all -- will be greatly reduced.  /18/
This will not mean more government in the sunshine.  It will mean more
global misunderstanding and less effective regulatory coordination.
No one will benefit, except regulatees like respondents, who will have
found an ingenious new way to thwart the administrative process.

 II. THE DISTRICT COURT LACKED JURISDICTION TO CONSIDER ITT'S ULTRA
VIRES CLAIM

   ITT alleged in its complaint, not only that closure of the
Consultative Process violated the Sunshine Act, but also that the
attending Commissioners' participation in those discussions was
"unlawful and ultra vires, and in excess of the authority conferred *
* * by the Communications Act" (J.A. 68).  The court of appeals held
that the district court had jurisdiction of the latter count, even
though exclusive jurisdiction to review FCC orders is vested in the
courts of appeals, even though ITT had presented an identical (or
virtually identical) ultra vires argument to the FCC in its petition
for rulemaking, and even though the FCC's order denying that
rulemaking petition was simultaneously before the court of appeals for
review.

   The court of appeals' holding is an egregious departure from
settled principles of administrative law.  It undermines the statutory
review procedure that Congress has mandated for review of FCC action.
And it permits parties to subject administrative orders to collateral
attacks that are duplicative, that waste judicial and agency
resources, and that threaten to produce conflicting results.

 A. The courts of appeals have exclusive jurisdiction to review FCC
orders, and this exclusivity is based on sound considerations of
policy and practicality

   It is undisputed that, under the special statutory review
provisions set forth in the Communications Act, exclusive jurisdiction
to review final FCC orders lies in the courts of appeals.  28 U.S.C.
2342(1);  47 U.S.C. 402(a).  /19/ While the district courts retain
residual jurisdiction to review final agency action under 28 U.S.C.
(Supp. V) 1331 and the Administrative Procedure Act, they may exercise
such jurisdiction only "in the absence or inadequacy" of special
statutory review.  5 U.S.C. 703.  See 5 U.S.C. 704 (permitting
district court review of agency action where "there is no other
adequate remedy in a court").  This Court has emphasized that, "where
Congress has provided statutory review procedures designed to permit
agency expertise to be brought to bear on particular problems, these
procedures are to be exclusive." Whitney National Bank v. Bank of New
Orleans, 379 U.S. 411, 420 (1965) (citing cases).  Accord, e.g., Port
of Boston Marine Terminal Ass'n v. Rederiaktiebolaget Transatlantic,
400 U.S. 62, 68-70 (1970);  City of Peoria v. General Electric
Cablevision Corp., 690 F.2d 116, 119, 121-122 (7th Cir. 1982);  City
of Rochester v. Bond, 603 F.2d 927, 934 (D.C. Cir. 1979).  The courts
have repeatedly rejected litigants' attempts to evade these procedures
by bringing district court actions that raise "collateral( )
attack(s)" on administrative orders.  Whitney National Bank, 379 U.S.
at 421-422;  Gaunce v. deVincentis, 708 F.2d 1290, 1292-1293 (7th Cir.
1982) (per curiam) (citing cases).  District court jurisdiction is
precluded where "the questions raised by the (plaintiffs) in the
District Court * * * are cognizable by the (agency)," and are thus
capable of being presented to the court of appeals on statutory
review.  Whitney National Bank, 379 U.S. at 417.

   The statutory review procedure serves important policy objectives.
It ensures that challenges to administrative action are presented to
the agency before they are presented to the courts.  It guarantees
that agency action will be delayed or set aside only by an appellate
panel, not by a single district court judge.  It ensures review by a
tribunal with far greater cumulative expertise about sometimes arcane
regulatory matters.  It streamlines the administrative process by
removing a layer of judicial review.  It reinforces the rule that
agency decisions should be reviewed on the administrative record, not
on the basis of de novo judicial factfinding.  It prevents
interference with agency work and harassment of agency staff through
time-consuming discovery requests and trial court proceedings.  And it
prevents "unnecessary duplication and conflicting litigation" about
the same issue.  Whitney National Bank, 379 U.S. at 422.  See
generally Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48-50
(1938);  Note, Jurisdiction to Review Federal Administrative Action:
District Court or Court of Appeals, 88 Harv L. Rev. 980, 983 (1975).

 B. ITT's ultra vires claim could have been reviewed by the court of
appeals under 47 U.S.C. 402(a), and the district court thus had no
jurisdiction to consider it

   The court below acknowledged that exclusive jurisdiction to review
FCC orders is generally committed to the courts of appeals (Pet. App.
13a).  Yet it held that concurrent district court jurisdiction was
nevertheless appropriate here, for two principal reasons.  Neither
reason justifies that holding.

   1. First, while conceding that "(a) strong presumption against
concurrent district court jurisdiction would be appropriate if the
issues presented by ITT's rulemaking petition and its ultra vires
count were indeed identical," the court of appeals believed that the
issues were actually "very different" (Pet. App. 14a).  ITT's
rulemaking petition, as the court read it, "asked the Commission for a
declaration of the nature of its authority * * * and argued that
'negotiation' (was) outside the scope of that authority." ITT's
complaint, on the other hand, was viewed as "assert(ing) that the
Commission, irrespective of what it acknowledges as the proper scope
of its authority, has in fact secretly exceeded that authority and
will not admit to having done so" (ibid.; emphasis in original).

   This exercise in hair-splitting cannot withstand analysis.  ITT in
its rulemaking petition quite plainly presented, among other
arguments, an ultra vires argument identical to that set forth in its
district court complaint.  And even if it were possible to perceive
some distinction between the two claims, it would be a distinction
without a difference for purposes of answering the jurisdictional
question posed here.

   ITT's rulemaking petition expressly contended that the FCC "lacks
authority to participate in" Consultative Process discussions of new
carriers and services.  See J.A. 32-33, 42, 46, 51 and 68.  /20/ The
petition and the complaint cited the same evidence -- a series of
statements by FCC representatives -- in support of this ultra vires
charge.  Compare J.A. 35 n.2 and 52 with J.A. 64-68.  The petition and
the complaint sought essentially the same, prospective, relief -- a
prohibition (whether effected by agency rule or court injunction)
against the FCC's engaging in ultra vires conduct at future
Consultative Process sessions.  Compare J.A. 47-48 with J.A. 70-71.
/21/ The Commission itself interpreted the petition to present an
ultra vires claim, summarizing the first issue raised by ITT as
"whether the Commission has engaged in 'negotiations'" (Pet. App.
77a), and concluding that "ITT's argument, reduced to its essentials,
is that the Commission lacks authority to engage in discussion with
foreign governments and telecommunications entities" (id. at 71a).
And the Commission, in its order denying the petition for rulemaking,
comprehensively addressed ITT's ultra vires contention, concluding
(id. at 82a) that the Consultative Process discussions were a
"necessary and natural corollary" of its statutory authority to
regulate "foreign commerce in communication by wire and radio" (47
U.S.C. 151).

   Even if it were possible to discern some distinction between the
ultra vires argument raised in ITT's rulemaking petition and the ultra
vires claim presented in its district court complaint, the
jurisdictional outcome would be the same.  Any such variation was
wholly a result of the way ITT chose to frame its pleadings.  But this
Court has emphasized that, where a statute vests exclusive
jurisdiction to review agency action in the courts of appeals, nice
distinctions of pleading will not enable collateral attacks to be
brought before a district judge.  In Whitney National Bank, the Court
expressly ruled such formal distinctions irrelevant;  it held that the
district court was without jurisdiction because "the thurst of (the)
complaint" (379 U.S. at 417) and "the heart of (the) argument" (id. at
418, 423) raised questions cognizable by the agency and exclusively
reviewable in the courts of appeals.  /22/

   There can be no question here that "the thrust" of ITT's complaint
and "the thrust" of its rulemaking petition were substantially
identical.  Each challenged the Commissioners' authority to discuss
new carriers and services at the Consultative Process.  If ITT
entertained any doubt about its ability to have this challenge
resolved in the rulemaking proceeding, it could have moved the FCC for
a declaratory ruling (see 47 C.F.R. 1.2) concerning the legality of
the attending Commissioners' conduct, and judicial review of that
ruling would likewise have been available in the court of appeals.
/23/ What ITT could not do was circumvent these statutory review
procedures by crafting razor-thin distinctions between the claim it
asserted before the Commission and the claim it asserted before the
district court.

   In sum, by alleging that the FCC's participation in the
Consultative Process was "unlawful and ultra vires, and in excess of
the authority conferred * * * by the Communications Act," ITT's
complaint asserted a claim identical, or virtually identical, to that
presented in its rulemaking petition.  The FCC had fully addressed
that claim in its order denying rulemaking, the order denying
rulemaking was pending before the court of appeals, and the court of
appeals' jurisdiction to review that order was, under 47 U.S.C.
402(a), exclusive.  Accordingly, the district court lacked
jurisdiction of the ultra vires count.  /24/

   2. The court of appeals' second reason for sustaining district
court jurisdiction was that "de novo judicial factfinding (was)
necessary for a fair examination of the disputed issues" (Pet. App.
14a).  The court found the rulemaking record "manifestly inadequate"
and concluded that "ITT's colorable ultra vires claim (could)
therefore be tested only through the kind of independent, de novo
factfinding appropriate in the district court" (id. at 15a).

   This reasoning stands administrative procedure on its head.  If an
appellate court "finds itself unable to exercise informed judicial
review because of an inadequate administrative record," the proper
course is to "remand (the) case to the agency for further
consideration." Harrison v. PPG Industries, Inc. 446 U.S. 578, 593-594
(1980).  An agency is not foreclosed from dealing with a question
merely because a claim is made (as here) that it has exceeded its
statutory authority.  See, e.g., FCC v. Midwest Video Corp., 440 U.S.
689 (1979).  Nor is a remand for further factfinding inappropriate
merely because a claim is made (as here) that the agency has been
guilty of ex parte contacts or other impropriety.  /25/ If, following
a remand for further factfinding, the appellate court still finds the
agency record inadequate, it may refer the case, under 28 U.S.C.
2347(b)(3), to a district court judge, who will act as special master
in accordance with the court of appeals' specific guidelines and
instructions.  /26/ Whatever procedure is adopted, the objective is to
create a record adequate for judicial review -- judicial review that,
under the governing statutes, is committed exclusively to the courts
of appeals.  Neither law nor logic supports the notion that an
inadequate administrative record, in and of itself, can somehow serve
to abrogate the statutory review procedure and invest a district court
with jurisdiction it would not otherwise have.  Jurisdiction cannot so
lightly be conferred.  /27/

   3. The court of appeals' decision to remand the ultra vires count
to the district court is particularly problematic when viewed in
conjunction with its decision simultaneously to remand the rulemaking
petition to the FCC.  The court acknowledged that both tribunals would
be required on remand to investigate precisely the same thing -- "the
nature of the (attending Commissioners') off-the-record activities" at
the Consultative Process (see Pet. App. 15a n.54).  The court also
acknowledged that this "double remand" was "fraught with the potential
for duplication, conflicting resolutions, and further delay." Id. at
51a.  Yet the court's suggested way out of this dilemma -- that the
Commission "stay() further action on ITT's rulemaking petition pending
the district court's resolution of the ultra vires issue" (Pet. App.
51a-52a) -- only illustrates the court's cumulative errors.  That
suggestion inverts the doctrine of "primary jurisdiction" (see pages
44-45 n.24, supra) and flouts this Court's decision in Whitney
National Bank.  The Court there noted, as did the court below, that
concurrent district court jurisdiction would create the potential for
"unnecessary duplication" and "conflicting determinations" (379 U.S.
at 422).  But the Court's solution was not to stay the agency
proceedings and order the matter determined in the first instance by
the district court.  Its solution, rather, was to order dismissal of
the district court complaint and have "the determination of the plan's
propriety (be made) in the first instance" by the agency (id. at 421).

   In short, neither rationale advanced by the court of appeals /28/
justifies its decision to permit concurrent district court
jurisdiction.  That holding is an unprecedented departure from
established principles of administrative law, and offers regulated
parties yet another tool for disrupting the administrative process
/29/ by bringing time-consuming collateral attacks on agency
decisions.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   RICHARD K. WILLARD

      Acting Assistant Attorney General

   KENNETH S. GELLER

      Seputy Solicitor General

   ALBERT G. LAUBER, JR.

      Assistant to the Solicitor General

   LEONARD SCHAITMAN

   FRANK A. ROSENFELD

      Attorneys

   BRUCE E. FEIN

      General Counsel

   DANIEL M. ARMSTRONG

      Associate General Counsel

   C. GREY PASH, JR.

      Attorney Federal Communications Commission

   JANUARY 1984

   /1/ In recent years, these companies have obtained operating
agreements with some foreign nations, and now offer limited service in
competition with respondents.

   /2/ Respondents were likewise excluded from those portions of two
subsequent Consultative Process sessions -- held in Ascot, England, In
February 1980, and Madrid, Spain, in October 1980 -- during which new
carriers and services were discussed.  See Pet. App. 6a;  J.A. 92,
127-141, 177-179.

   /3/ ITT's proposed rules would require the FCC to publish 30 days'
advance notice of all Consultative Process sessions and of the topics
to be discussed there (J.A. 47).  Any interested carrier could object
to the scheduled topics, propose additional topics, and generally
express its views (id. at 48).  The Commission would be required to
indicate its disposition of all comments received.  All international
discussions would have to be held on the record and be open to the
public.  And any interested party would be permitted to present its
position, orally or in writing, at the Consultative Process.  Ibid.

   /4/ These statements, nine in number, included comments by the full
Commission that participation in the Consultative Process flows from
the FCC's "duty to authorize international (services) in the public
interest" and that "these informal discussions * * * are a necessary
and natural corollary of (its) international licensing authority"
(J.A. 164-165);  a statement by the FCC's General Counsel that "(t)he
consultative process may provide a mechanism for increasing
cooperation" in the area of new services (id. at 168);  a comment by
the chief of the FCC's Common Carrier Bureau that the Consultative
Process was designed to facilitate "meaningful dialogue on matters of
international scope" (id. at 169);  a comment by Commissioner Fogarty
that the FCC "really mean(t) business" in seeking to foster
competition in overseas services (id. at 166);  an observation by FCC
Chairman Ferris, in colloquy with Senator Hollings at a Senate
subcommittee hearing, that the FCC possessed some "leverage in
international (facilities) planning" (id. at 167);  an except from a
speech by Commissioner Fogarty in Montreal, Canada, urging foreign
administrators to "recognize that (the FCC was) trying to promote
competition," and describing the hoped-for-European response as a
"quid pro quo" (id. at 165-166);  a comment by Commissioner Lee during
an April 1980 FCC meeting that he "wouldn't object to having this very
subject on an agenda * * * to see what (the Europeans) would be
willing to bargain" (id. at 166);  and a comment by Commissioner
Washburn, during the same FCC meeting, opposing ITT's Sunshine Act
request on the ground that public meetings inhibit frank discussion
"when (one is) in a negotiating stance abroad" (ibid.).  In the case
of the latter two statements, the context makes clear that the
"subject" Commissioner Lee was referring to was not new
telecommunications services, but ITT's request that Consultative
Process sessions be open to the public (see J.A. 161);  and the
context makes clear that Commissioner Washburn used the word
"negotiating" in a colloquial sense to mean a frank exchange of views.
 See id. at 157-158.  Indeed, the subsequent colloquy explicitly
affirmed that Consultative Process discussions "are not for the
purpose of negotiating operating agreements or entering into explicit
tradeoffs with respect to one issue or another" (id. at 158).

   /5/ The district court construed ITT's ultra vires claim to be
based on the Logan Act, 18 U.S.C. 963, which makes it a crime for
unauthorized persons to negotiate with foreign governments, and held
that the State Department alone has standing to complain of that
statute's violation (Pet. App. 63a).  The court also concluded that
the ultra vires claim would not be ripe until the two new carriers had
been accepted by foreign telecommunications agencies, at which time
ITT could "object through the formal rulemaking process" (ibid.).  The
court of appeals reversed these two rulings (id. at 17a-21a).  Neither
is presented here.

   /6/ ITT also sought disclosure under the FOIA of certain documents
related to the Consultative Procews (see Pet. App. 71a n.1).  The
district court ordered disclosure of the documents (id. at 63a-65a),
but the court of appeals reversed as to all but two of them (id. at
21a-34a).  The FOIA question is not presented here.

   /7/ Effective July 1, 1983, the Commission's membership was reduced
to five, thus reducing the size of a quorum from four to three.  Pub.
L. No. 97-253, tit. V, Section 501(b), 96 Stat. 805.

   /8/ Section 155(d)(1) was renumbered as Section 155(c)(1) in 1982.
See Pub. L. No. 97-259, Section 105(b), 96 Stat. 1091 (to be codified
at 47 U.S.C. 155(c)(1)).

   /9/ Earlier versions of the Sunshine Act, like the version enacted,
required that a subdivision be "authorized to act on behalf of the
agency" before a "meeting" could occur.  Both bills before the
Conference Committee contained this requirement.  See S.5, 94th Cong.,
1st Sess. Section 4(a) (1975);  H.R. 11656, 94th Cong., 2d Sess.
Section 552b(a)(1) (1976).  Previous drafts did the same.  See, e.g.,
H.R. 5075, 94th Cong., 1st Sess. Section 4(a) (1975).  The legislative
history nowhere discusses the meaning of this phrase.

   /10/ In holding that "unofficial authorization" sufficed, the court
of appeals reasoned (Pet. App. 36a) that "(t)he applicability of the
Sunshine Act manifestly cannot turn on whether an agency has in fact
followed proper procedures for delegating authority to a subdivision,
for the requirements of the Act could otherwise be evaded at will."
This reasoning is spurious.  An agency will have little incentive to
make improper delegations of power, since, if its members purport to
take official action in reliance thereon, their actions will be void
and may be set aside.  On the other hand, if the "unofficially
authorized" members do not purport to take official action, but merely
assist the agency informally in some way, any official action
subsequently taken will be fully subject to the Sunshine Act's
constraints.  Besides, an agency willing to delegate authority to
escape the Act's strictures need not resort to the sort of skulduggery
hypothesized by the court of appeals, for agencies have at their
disposal perfectly legal methods of accomplishing that result.  The
agency, for example, could authorize a single member to act on its
behalf.  See 5 U.S.C. 552b(a)(2) (defining "meeting" to mean "the
joint conduct" of agency business);  S. Rep. 94-354, supra, at 17
(indicating that the Act does not apply where only one agency member
is present).  Cf. 47 U.S.C. 155(d)(1) (permitting FCC to "delegate any
of its functions * * * to * * * an individual Commissioner").  Or the
agency could authorize employees, rather than members, to act for it.
See 5 U.S.C. 552b(a)(1) & (2) (defining "agency" as a collegial body
headed by "two or more * * * members" appointed by the President, and
defining "meeting" as the deliberations of a quorum of "members").
Cf. 47 U.S.C. 155(d)(1) (permitting FCC to "delegate any of its
functions * * * to * * * an employee board, or an individual
employee").  While Congress recognized such possibilities (see S. Rep.
94-354, supra, at 17), it chose not to make the Act's coverage
absurdly broad solely to preclude all chance of avoidance.

   /11/ The use of the term "deliberations" elsewhere in the Sunshine
Act is consistent with this conclusion.  The Act provides (5 U.S.C.
552b(a)(2)) that "the term 'meeting' means * * * deliberations * * * ,
but does not include deliberations required or permitted by subsection
(d) or (e)." The "deliberations" referred to in subsections (d) and
(e), significantly, are all of a formal, evaluative, decision-oriented
sort.  See, e.g., 5 U.S.C. 552b(d)(1) (providing that an agency may
close a meeting "only when a majority * * * votes to take such
action," and specifying the procedure for such vote);  5 U.S.C.
552b(d)(2) (providing that, upon request of an interested party, "the
agency * * * shall vote by recorded vote whether to close" a meeting);
 5 U.S.C. 552b(d)(4) (stating that an agency "may provide by
regulation" for the closing of certain meetings);  5 U.S.C. 552b(e)(2)
(providing that an agency may change a meeting's format only if it
"determines by a recorded vote that agency business so requires").

   /12/ The court of appeals suggested that the information gathered
at the Consultative Process "is essential in (the FCC's) deliberations
regarding the future structure of international telecommunications"
(Pet. App. 39a).  But the fact that an event furnishes information
useful in future deliberations does not mean that the event itself
involves deliberations.  Reading documents or inspecting facilities
may also furnish such information, but those activities can hardly be
termed "deliberations."

   /13/ The quoted passage makes this point (S. Rep. 94-354, supra, at
19) by reference to a three-member agency, but "the passage
necessarily has broader application, since there is nothing in the
statute which supports a special definition of 'meeting' for agencies
where two members make up a quorum." Interpretive Guide 6.  The court
of appeals (Pet. App. 41a n.163) so understood the passage.

   /14/ In its Brief in Opposition, ITT asserts (at 23 & n.17) that
the Consultative Process discussions may have touched on at least one
matter that was "likely to arise before" the FCC, since, under the
terms of the Commission's authorizations to Telenet and Graphnet (see
ITT World Communications, 595 F.2d at 902), any operating agreements
they reached with European administrations would "require (FCC)
approval." This assertion is misleading.  The Commission in
authorizing Telenet and Graphnet did conclude that its "regulatory
needs (could) be adequately satisfied by conditioning (their)
authorizations (on) the execution and filing of satisfactory
agreements prior to initiation of these services, rather than prior to
their authorization." 63 F.C.C.2d at 408.  The filing of such
agreements, however, was merely a reporting requirement, not a
substantive condition of licensing (In re International Relay, Inc.,
77 F.C.C.2d 819, 826 (1980)), and in reviewing the agreements the FCC
would be performing only a routine oversight function.  (The
Commission has since eliminated, effective May 1980, the requirement
that operating agreements be filed prior to the carrier's commencing
service (77 F.C.C.2d at 825-828)).  At all events, any link between
the generalized discussion of "new carriers and services" held at the
Consultative Process, and the particularized terms of hypothetical
operating agreements foreign administrations might sign with Telenet
or Graphnet, was utterly remote and speculative.

   /15/ See, e.g., 47 U.S.C. 154(j) (FCC hearings open to the public
upon request, but may be closed to protect secret national defense
information);  cf. 5 U.S.C. 552b(c)(1) (Sunshine Act exception for
similar information).

   /16/ See, e.g., S. 3881, 92d Cong., 2d Sess. Section 1(a) (1972);
S. 261, 93d Cong., 1st Sess. Section 201(a) (1973);  S. 5, 94th Cong.,
1st Sess. Section 201(a) (1975);  H.R. 5075, 94th Cong., 1st Sess.
Section 4(a) (1975).

   /17/ It is of course true, as the court below noted, that "the mere
setting of a gathering is not determinative" of its status as a
Sunshine Act "meeting" (Pet. App. 40a n.158, quoting S. Rep. 94-354,
supra, at 18).  The Senate Report indicates that "(d)isucssions held
in the board room or the Chairman's office are not the only gatherings
covered," and that "(c)onference telephone calls and meetings outside
the agency are equally subject to the bill if they * * * meet the
requirements of this subsection." S. Rep. 94-354, supra, at 18-19.
But we are not contending that the geographical location of the
Consultative Process sessions, per se, put them outside the Act's
scope.  We submit, rather, that the totality of the circumstances
under which the sessions were held -- including the facts that they
took place outside U.S. regulatory jurisdiction and were attended by
foreign officials who outnumbered and had equal status with the
attending FCC members -- shows that the sessions could not have been
controlled by, and were thus not "meetings of," the agency.

   /18/ As noted above (see pages 10-11, supra), the October 1980
Consultative Process session, held in Madrid, was taped pursuant to
the district court's order.  The European attendees objected
strenuously (J.A. 177), and the gathering proved far less useful than
its predecessors, with the Europeans abstaining from candid discussion
and "confin(ing) themselves instead to listening to the U.S. statement
of position" (id. at 178).  Although the Consultative Process has not
been terminated entirely (see ITT's Br. in Opp. 13), sessions held
since Madrid have dealt only with facilities planning, to the
exclusion of the topics -- new carriers and services, and the
desirability of increased competition -- that were added to the agenda
at Dublin.  The decisions below, in short, have caused cessation of
the discussions that gave rise to this litigation.

   /19/ Section 402(a) of Title 47 provides that "(a)ny proceeding to
enjoin, set aside, annul, or suspend any order of the Commission under
this chapter * * * shall be brought as provided by and in the manner
prescribed" in 28 U.S.C. 2342(1).  The latter section provides that
the courts of appeals have "exclusive jurisdiction to enjoin, set
aside, suspend (or) determine the validity of * * * all final orders
of the Federal Communication Commission * * * ."

   /20/ The petition begins by saying that "ITT Worldcom questions the
wisdom of such proposed activities (i.e., Consultative Process
discussions of new carriers and services), and contends that the
Commission lacks authority to participate in them" (J.A. 33).  The
petition ends by asserting that "the Commission must, at the
threshold, face the issue of whether its contemplated course is a
permissible one" (id. at 46).  ITT described as "the primary
underlying issue" the FCC's asserted "lack of authority for the course
upon which it is apparently embarking" (id. at 51).  ITT urged the
Commission to adopt procedural rules only in the event that it
"determine(d), on the basis of (ITT's proposed) policy evaluation,
that it may proceed with an exchange of information with foreign
administrations" (id. at 42).  ITT's district court complaint itself
acknowledged that its rulemaking petition "questioned the Commission's
authority to engage in the negotiations and discussions with foreign
governments" (id. at 68).

   /21/ In its brief in the court of appeals, ITT tried to articulate
a distinction between the modes of relief sought, arguing that its
petition was "entirely prospective in nature" and did not "ask the FCC
to determine the legality of its past actions," whereas its complaint
"asked the District Court to review the legality of past actions the
Commission had actually taken at the closed meetings" (C.A. Br.
39-40).  ITT urges the same distinction here.  Br. in Opp. 26.  This
post hoc distinction is illusory.  ITT did not ask the district court
to grant (and the district court had no power to grant) any
retrospective relief;  rather, ITT sought declaratory and injunctive
relief as to future Consultative Process sessions.  See J.A. 70-71.
It is of course true that both the FCC and the district court, in
considering ITT's request for prospective relief, would have had to
examine the attending Commissioners' past conduct to determine, as a
general matter, the permissible scope of FCC activity.  But this does
not change the prospective character of the relief sought.  ITT has
never contended that previous Consultative Process sessions from which
it was excluded differ in any material respect from the sessions the
FCC contemplated attending in the future.

   /22/ The complaint in Whitney National Bank requested an injunction
against the Comptroller of the Currency's issuance to a
newly-organized bank of a certificate of authority to do business (379
U.S. at 414, 417).  This Court concluded, however, that the
plaintiffs' "quarrel(,) in actuality," was with the Federal Reserve
Board's approval of a bank holding company that included the
newly-organized bank as a subsidiary.  See id. at 417-419.  The Court
accordingly held that the district court lacked jurisdiction of the
injunctive action and required the plaintiffs to submit their
objections initially to the Board (id. at 419-423).

   /23/ For cases involving appellate review of FCC declaratory
rulings, see Chisholm v. FCC, 538 F.2d 349, 364-365 (D.C. Cir.), cert.
denied, 429 U.S. 890 (1976);  New York State Broadcasters' Ass'n v.
United States, 414 F.2d 990 (2d Cir. 1969).  At least one court of
appeals has cited the availability of a declaratory ruling under 47
C.F.R. 1.2 as a basis for foreclosing district court consideration of
issues cognizable by the FCC.  See City of Peoria, 690 F.2d at 121.

   /24/ Even if ITT's two claims were genuinely heterogeneous, it
would not follow that the district court would have jurisdiction to
proceed to the merits of the claim before it.  In determining whether
district court jurisdiction lies, the question is not whether the
complaint tenders issues that have in fact been presented to the
agency.  The question, rather, is whether the "complaint tenders
issues cognizable by the (agency)." Whitney National Bank, 379 U.S. at
419.  Under the doctrine of "primary jurisdiction," a litigant does
not have an election as to the forum in which he will raise a matter
within the compass of an agency's regulatory expertise;  rather, he
must permit the agency to "have first crack at" the problem's
resolution.  City of Peoria, 690 F.2d at 120-121.  Accord, e.g., Ricci
v. Chicago Mercantile Exchange, 409 U.S. 289, 295-306 (1973);  Writers
Guild of America, Inc. v. American Broadcasting Companies, Inc., 609
F.2d 355, 365-366 (9th Cir. 1979), cert. denied, 449 U.S. 824 (1980).
See generally L. Jaffe, Judicial Control of Administrative Action
121-135 (1965).  If an agency has primary jurisdiction over an issue,
the district court must either dismiss the complaint (e.g., Whitney
National Bank, 379 U.S. at 421, 426;  Far East Conference v. United
States, 342 U.S. 570, 574, 577 (1952)), or stay proceedings before it
pending completion of the related agency action (e.g., Ricci, 409 U.S.
at 291;  City of Peoria, 690 F.2d at 122).  Where there are no issues
in the district court other than those properly referrable to the
agency, the agency is capable of offering the full relief requested,
and the agency's action will be exclusively reviewable in the court of
appeals, dismissal of the complaint is usually the proper course.  See
L. Jaffe, supra, at 137-141 (discussing cases).  Thus, even if ITT had
not raised the ultra vires point in its rulemaking petition, dismissal
of the ultra vires count would still have been proper under the
"primary jurisdiction" doctrine.

   /25/ See, e.g., PATCO v. FLRA, 672 F.2d 109 (D.C. Cir. 1982);  HBO,
Inc. v. FCC, 567 F.2d 9, 58-59 (D.C. Cir.), cert. denied, 434 U.S. 829
(1977);  Sangamon Valley Television Corp. v. United States, 269 F.2d
221 (D.C. Cir. 1959).  See also Writers Guild of America, 609 F.2d at
363-364, 366 (holding that FCC had primary jurisdiction over claim of
official misconduct by FCC Commissioner).

   /26/ See, e.g., California Ass'n of the Physically Handicapped,
Inc. v. FCC, No. 80-6088 (9th Cir. Dec. 8, 1983), slip op. 5728-5729;
Lake Carriers' Ass'n v. United States, 414 F.2d 567 (6th Cir. 1969).
See also City of Rochester, 603 F.2d at 938 (suggesting transfer under
28 U.S.C. 2347(b)(3) "when petitioner's allegations necessitate
factfinding beyond the competence of the agency").

   /27/ The court of appeals' reliance (Pet. App. 14a-15a n.52) on
cases like Investment Company Institute v. Board of Governors of the
Federal Reserve System, 551 F.2d 1270, 1278 (D.C. Cir. 1977), and
Deutsche Lufthansa Aktiengesellschaft v. CAB, 479 F.2d 912, 916 (D.C.
Cir. 1973), is misplaced.  Those cases hold only that, where an agency
takes certain kinds of informal action, the existence vel non of an
adequate record is a useful factor in determining whether such action
is a reviewable "order" for purposes of a direct review statute.
There is no question here that the FCC's denial of ITT's petition for
rulemaking is an "order." Indeed, ITT petitioned for review of that
order and the court below assumed jurisdiction.

   /28/ The court of appeals also reasoned (Pet. App. 16a) that
"subsequent judicial or administrative proceedings would not likely
provide an adequate remedy for the Commission's alleged misconduct"
because that misconduct "(was) not calculated to result in a final
order, but rather to lead to unreviewable action by foreign
administrations." This argument adds nothing to, but is merely
derivative of, the two arguments discussed above.  If, as we contend,
ITT's ultra vires argument was in fact presented (or was capable of
being presented) to the FCC in a petition for rulemaking or motion for
declaratory ruling (see pages 41-44, supra), to be followed by
statutory review under 47 U.S.C. 402(a), ITT had a completely adequate
remedy for the Commission's alleged misconduct, and it is immaterial
that the Consultative Process would not itself yield any "final
orders" subject to judicial review.

   /29/ For example, in Municipal Electric Utilities Ass'n v. Regan,
Civ. No. 83-0595 (D.D.C. 1983), a suit alleging that the Federal
Energy Regulatory Commission relied on ex parte communications in
taking certain action, plaintiffs have predicated jurisdiction in
large measure on the court of appeals' reasoning below.  The
jurisdictional question has arisen in at least two challenges to FCC
action since the opinion below was issued.  See California Ass'n of
the Physically Handicapped, Inc. v. FCC, supra;  Faith Center, Inc. v.
FCC, Civ. No 83-1463 (D.D.C. filed May 23, 1983).

                               APPENDIX

   APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.