UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


INTL TELECARD ASSN

v.

FCC


98-1291a

D.C. Cir. 1999


*	*	*


Opinion for the court filed Per Curiam.


Per Curiam: In Richman Bros. Records, Inc., v. Federal  Communications
Commission, 124 F.3d 1302 (D.C. Cir.  1997), we dismissed a petition
for review because the petition- ers had not yet sought review of the
agency order by the full  Federal Communications Commission, as
required by 47  U.S.C. s 155(c)(7). The question presented in this
case is  whether judicial review can be obtained when Commission 
review has been sought, but not yet obtained. In other  words, is the
act of filing a request for Commission review in  itself sufficient to
satisfy the judicial review prerequisites of  s 155(c)(7). We hold
that it is not.


The order under review in this petition was issued March 9,  1998, by
the Chief of the FCC's Common Carrier Bureau,  Implementation of the
Payphone Reclassification and Com- pensation Provisions of the
Telecommunications Act of 1996,  Order No. DA 98-481, 13 FCC Rcd 4998
(Com. Car. Bur.  1998). The order was issued pursuant to authority
delegated  by the full Commission to the Common Carrier Bureau Chief. 
See 47 U.S.C. s 155(c)(1); 47 C.F.R. ss 0.91 & 0.291. In  April 1998,
petitioners filed an application for full Commission  review of the
March 9 order, pursuant to 47 U.S.C.  s 155(c)(1) (orders issued on
authority delegated by the Com- mission "may be adopted, amended, or
rescinded only by a  vote of the majority of the members of the
Commission then  holding office"). Petitioners filed a petition for
judicial re- view in June 1998. The FCC moved to dismiss for lack of 
jurisdiction because the full Commission had not yet resolved  the
application for administrative review. In an unpublished  order filed
September 15, 1998, we granted the FCC's motion  and dismissed the


Petitioner International Telecard Association (ITA) filed a  petition
for rehearing arguing that the act of filing an applica- tion for
Commission review satisfies the statutory prerequi- site to judicial
review, and that petitioners need not await the  Commission's decision
on review before petitioning this court.  ITA's argument is based on
the language of 47 U.S.C.  s 155(c)(7), which provides that "[t]he
filing of an application  for review [by the full Commission] shall be
a condition  precedent to judicial review of any order taken pursuant


delegated authority, but does not explicitly require a petition- er to
await the Commission's disposition.


ITA's reading of s 155(c)(7), however, conflicts with the  reasoning of
Richman Bros. The petition at issue in Rich- man Bros. arose out of a
primary jurisdiction referral from a  district court to the FCC's
Common Carrier Bureau. We  disallowed Richman's attempt to obtain
judicial review of the  resulting staff decision without first seeking
Commission re- view. Richman Bros. rejected the claim that s
155(c)(7)'s  "exhaustion requirement" is inapplicable to primary
jurisdic- tion referrals, reasoning that "the Congress did not intend 
that the court review a staff decision that has not been  adopted by
the Commission itself." Id., 124 F.3d at 1304.  The Richman Bros.
reasoning applies equally to the situation  presented here. Because
ITA's interpretation of s 155(c)(7)  would permit judicial review of a
staff decision before the  Commission has "adopted, amended, or
rescinded" that deci- sion, see s 155(c)(1), it must be rejected.


Lest there be any misunderstanding, we expressly hold  that a petition
for review filed after a bureau decision but  before resolution by the
full Commission is subject to dismiss- al as incurably premature.
Ongoing agency review renders  an order nonfinal for purposes of
judicial review, and a  petition for review of the order is incurably
premature. Cf.  BellSouth Corp. v. FCC, 17 F.3d 1487, 1490 (D.C. Cir.
1994)  (while party's request for agency reconsideration remains 
pending, petition for judicial review incurably premature);  Wade v.
FCC, 986 F.2d 1433, 1434 (D.C. Cir. 1993) ("danger  of wasted judicial
effort ... attends the simultaneous exercise  of judicial and agency
reconsideration").


Because ITA's petition for review was properly dismissed,  we deny the
petition for rehearing.