I hope to post regular updates on recent CA5 admin decisions here. To kick things off, I've looked at cases decided over the past few months. I'll cover the ones I think are particularly interesting or important and will break this initial update up into two or three separate posts.  

Worldcall Interconnect, Inc. v. FCC, 2018 WL 5315220 (5th Cir. 2018) (King, Elrod, Haynes)

Worldcall filed a complaint with the FCC after its negotiations with AT&T Mobility, LLC over a roaming agreement failed. Worldcall alleged that AT&T had proposed terms that violated the FCC's roaming rules and refused to accept terms that complied with these rules. The FCC's Enforcement Bureau found that AT&T's proposed rates did not violate its roaming rules. Worldcall petitioned the FCC for review of the Bureau's order, and the FCC denied the petition. Worldcall petitioned for review in the CA5, and the appellate court also denied its petition. The CA5 denied its petition. Judge King wrote the majority opinion, which Judge Haynes joined. Judge Elrod concurred in the judgment only.

To understand what's going on in this case, at least some understanding of the regulatory backdrop is essential. A roaming transaction involves three parties: (1) the subscriber (the cellphone user), (2) the host provider, and (3) the home provider. The subscriber buys wireless service from the home provider. When traveling outside of the home provider's network area, the subscriber uses the host provider's network infrastructure to receive mobile services. To facilitate this, the home provider and the host provider enter into an agreement granting the host provider's subscribers use of the host provider's network.

The FCC regulates roaming services under the Communications Act of 1934, 47 U.S.C. §§151-624. Two major regulatory developments are relevant to the Worldcall case. The first is the FCC's 2007 Automatic Roaming Order, 22 FCC Rcd. 15817, 15818, which defined automatic roaming as a service in which "a roaming subscriber is able to originate or terminate a call in the host carrier's service area without taking any special actions." Automatic roaming is defined in contrast to manual roaming, which typically requires the subscriber to provide a credit-card number to the carrier before the other network can be used. The Automatic Roaming Rule does not cover non-interconnected data services, including mobile broadband internet access services (MBIAS).

The second regulatory development occurred in 2011 when FCC promulgated the Data Roaming Order, which applied to all facilities-based providers of commercial mobile data services (CMDS). The Data Roaming Order defined CMDS as "any mobile data service that is not interconnected with the public switched network and is (1) provided for profit, and (2) available to the public or to such classes of eligible users as to be effectively available to the public. Under the Data Roaming Order, CMDS providers may negotiate the terms of their roaming arrangements on an individualized basis.

All of this gives rise to a distinction between the Automatic Roaming Order and the Data Roaming Order that is critical to the Worldcall case: Under the Automatic Roaming Order, discrimination in terms is not permissible, but under the Data Roaming Order, it is.

In Worldcall, Worldcall Interconnect, Inc. (referred to in the CA5 opinion as WCX) approached AT&T seeking a data-roaming services agreement and felt that the rates AT&T proposed for the service violated these FCC regulations. After the FCC's Enforcement Bureau denied WCX's complaint, it petitioned the FCC for review. WCX's primary argument was that the Automatic Roaming Order governed the transaction and that AT&T's proposed rates were discriminatory. In the alternative, WCX argued that if the Data Roaming Order applied, then AT&T's proposed rates were commercially unreasonable. The FCC concluded that because WCX had requested an MBIAS service (a non-interconnected service), the Data Roaming Order applied.  It also concluded that AT&T's proposed rates were not commercially unreasonable. WCX petitioned the CA5 for review.

Before the CA5, WCX argued that the FCC erred in finding that WCX had requested MBIAS as opposed to a roaming agreement. According to WCX, because the FCC applied the Data Roaming Order on that basis, it also erred by failing to apply the Automatic Roaming Order. The CA5 found that the parties had "inadequately briefed" this point, but concluded that it "need not wade into" the issue because even assuming that the Commission erred in its determination that WCX requested MBIAS, any such error was harmless.

Next, the court addressed WCX's argument that the Automatic Roaming Order should apply. WCX offered a "who-what" interpretation of the Automatic Roaming Rule, which appears at 47 C.F.R. §20.12. Under that interpretation, §§20.12(a)(2) and (a)(3) supply the "who"--namely the parties that are subject to the automatic and data roaming obligations, respectively--and §§20.12(d) and (e) supply the "what"--the requirements the parties must follow. According to WCX, AT&T is a §20.12(a)(2) "who" because it supplies interconnected services to its retail customers, and it is therefore subject to the §20.12(d) "what," namely the obligation to provide automatic roaming upon reasonable request. WCX contended that it had requested automatic roaming, and therefore insisted that the Automatic Roaming Rule applied.

The CA5 majority rejected WCX's argument. Concluding that "the text of §20.12 leads to the conclusion that the regulation is, at the very least, ambiguous," the majority deferred to the FCC's interpretation of its own regulation under Auer v. Robbins, 519 U.S. 452, 461 (1997). The majority explained that

[e]ven assuming that this section provides the “who,” and section (d) provides the “what,” neither section expressly provides the “when.” Consider the word “offer” under (a)(2). The regulation does not specify whether the Automatic Roaming Rule applies when the host provider “offers” interconnected services to its retail customers, or only when it “offers” such services to roaming customers. Nor does the language of section (d) fill this gap in the regulatory scheme. It can therefore scarcely be said that the text is “clear and unambiguous.” Accordingly, Auer deference applies.
Mindful of our deferential standard of review, we conclude the Commission’s interpretation—that it is the service being supplied by the host carrier, rather than the home carrier, that determines whether the Automatic Roaming Rule applies—is permissible.  

The CA5 also agreed with the FCC's determination that AT&T's proposed rates were commercially reasonable. Notably, the panel majority refused to consider certain of WCX's arguments in this regard because WCX had not raised them adequately for consideration before the FCC.

Judge Elrod concurred in the judgment only and wrote separately to explain that

The Data Roaming Rule applies to this agreement. I write separately to reach this conclusion not through the labyrinth of Auer deference, but through the straightforward application of the regulation’s text. We defer to an agency’s interpretation of its own regulation only when the regulation is “ambiguous.” Tex. Clinical Labs v. Sebelius, 612 F.3d 771, 777 (5th Cir. 2010) (citing Auer v. Robbins, 519 U.S. 452, 461, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) ). But the regulation at issue here is not. The Automatic Roaming Rule imposes duties only on a “host carrier subject to [subsection] (a)(2).” 47 C.F.R. § 20.12(d). To fall within the scope of subsection (a)(2), the host must be a “CMRS carrier[ ]” that “offer[s] real-time, two-way switched voice or data service that is interconnected with the public switched network.” Id. § 20.12(a)(2). By definition, CMDS, the service that AT&T offered to WCX, is “not interconnected with the public switched network.” Id.§ 20.3. When, as here, a carrier provides commercial mobile data services to a customer, it is (unsurprisingly) a “provider[ ] of commercial mobile data services.” Id. § 20.12(a)(3). That means that the Data Roaming Rule applies. Id.
Moreover, “[w]hen presented with two plausible readings of a regulatory text,” we “prefer[ ] the reading that does not render portions of that text superfluous.” Exelon Wind 1, LLC v. Nelson, 766 F.3d 380, 399 (5th Cir. 2014). WCX’s interpretation would render the Data Roaming Rule superfluous. If a provider of CMDS became subject to the CMRS roaming rule simply by providing CMRS service to the public, there would be no reason for a separate Data Roaming Rule for such carriers. WCX does not identify any data roaming request that it or another wireless provider could make to AT&T or another host that would be subject to the data roaming rule.

Davis v. Fort Bend County, 893 F.3d 300 (5th Cir. 2018) (King, Jones, Elrod)

This case resolves an intra-circuit split over whether Title VII's administrative exhaustion requirement is a jurisdictional requirement that implicates subject matter jurisdiction or merely a prerequisite to suit (and thus subject to waiver or estoppel), holding that failure to exhaust is not jurisdictional bar. In so holding, the CA5 joined the First, Second, Sixth, Seventh, Eighth, Ninth, and D.C. Circuits. Only the Tenth and Fourth Circuits have held that such a failure to exhaust is jurisdictional. Judge Jones concurred in the judgment only but did not write a separate opinion.

Guerrero v. Nielsen, 2018 WL 3387534 (5th Cir. 2018) (Higginbotham, Higginson)

Guerrero is an interesting, though unpublished, immigration opinion. Judge Prado was on the original panel but he "retir[ed] from the court on April 2, 2018, [and before this case was decided] to become His Excellency the United States Ambassador to the Argentine Republic."  As a result, Guerrero is a quorum decision. See 5th Cir. R. 47.5.4.

The issue was whether "temporary protected status" under 8 U.S.C. §1254(a) trumps §1255(c)(1)'s exclusion of "alien crewman" from the mechanism available to certain nonpermanent residents under Section 1255(a) to obtain permanent lawful status. Given the limited precedential value of the opinion, I won't go over it in detail here. Worth noting, however, is this passage from the decision:

Guerrero responds by pointing to the developing circuit split on whether TPS-holders automatically fulfill §1255(a)'s requirement of having been "inspected and admitted or paroled into the United States." §1255(a) Compare Ramirez v. Brown, 852 F.3d 954, 958 (9th Cir. 2017) (yes), and Flores v. USCIS, 718 F.3d 548, 551, 554 (5th CIr. 2013 (yes), with Serrano v. U.S. Atty. Gen., 665 F.3d 1260, 1265 (11th Cir. 2011) (no).  But this case as presented does not implicate that issue.
Fifth Circuit Update Number 1, Part 1
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