SOUTHERN BELL TELEPHONE & TELEGRAPH CO., ET AL., PETITIONERS V.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.

   NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY, ET AL., PETITIONERS V.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.

   No. 88-1249, No. 88-1250

   In The Supreme Court Of The United States

   October Term, 1988

   On Petitions For A Writ Of Certiorari To The United States Court Of
Appeals For The District Of Columbia Circuit

   Supplemental Memorandum For The Federal Respondents

   In its amicus brief in support of petitioners, the Communications
Satellite Corp. (COMSAT) correctly observes (at 4) that in 1988 the
Federal Communications Commission ordered COMSAT to refund amounts
collected in excess of a previously prescribed rate of return (COMSAT,
3 F.C.C. Rcd 2643 (1988)) and that the Commission there relied on the
court of appeals' ruling in the present case to reject the claim that
the refund order was beyond the Commission's statutory authority (id.
at 2645).  That Commission decision is currently on review in the D.C.
Circuit, which has deferred briefing pending the disposition of the
petitions in these cases.  We file this brief supplemental memorandum
in response to COMSAT's amicus submission, since we had overlooked the
COMSAT case in preparing our brief in opposition to the petitions for
a writ of certiorari in these cases.

   Notwithstanding the Commission's reliance in COMSAT on the ruling
at issue here, the pendency of the COMSAT decision in the court of
appeals does not undermine our submission that the continuing
importance of the present ruling is insufficient to warrant review.
First, besides COMSAT, there is no other outstanding decision raising
the refund issue decided by the court of appeals here.  Second, in
COMSAT itself, as in the present cases, the Commission ordered refunds
only with respect to rates that took effect subject to investigation
and were made subject to an accounting order under Section 204.  /*/
See 3 F.C.C. Rcd at 2644, 2645-2647;  COMSAT, 2 F.C.C. Rcd 3706, 3708
(1987) (proposing refund order).  Third, COMSAT's appeal from the
Commission's COMSAT decision may well raise other issues that might
make it unnecessary for the court of appeals to consider the
Commission's refund authority at all.  Thus, the question presented by
petitioners here -- the Commission's refund authority outside the
Section 204 context -- might not be or have to be resolved by the
court of appeals on review of the COMSAT decision, and there is no
other pending case raising the issue.

   Accordingly, for the reasons set forth in our brief in opposition,
the present petitions should be denied.

   Respectfully submitted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   APRIL 1989

   /*/ COMSAT, CC No. 80-634, Mem. Op. & Order (released Aug. 2, 1984)
(allowing tariff changes to take effect subject to investigation with
issues to be designated in subsequent order, citing Section 204);
COMSAT, CC No. 86-634, Mem. Op. & Order (released Nov. 8, 1985)
(designating issues and requiring accounting under Section 204(a)).