## Facts

- The Federal Communications Commission issued an order addressing intermodal number portability, specifying when wireline carriers must port telephone numbers to wireless carriers.
- United States Telecom Association and CenturyTel, representing wireline carriers, petitioned for review.
- Petitioners argued the order imposed new obligations and therefore was a legislative rule requiring Administrative Procedure Act (APA) notice-and-comment rulemaking and compliance with the Regulatory Flexibility Act (RFA).
- The FCC characterized the order as interpretative, contending it merely interpreted existing number-portability rules and was exempt from APA notice-and-comment and related RFA procedures.
- Wireless-industry participants intervened in support of the FCC.

## Issues

1. Whether the FCC’s intermodal number portability order was an interpretative rule or a legislative rule under the APA.
2. If the order was legislative, whether the FCC satisfied the APA’s notice-and-comment requirements.
3. Whether any procedural deficiencies under the APA or the RFA required setting aside the order.

## Decision

- The court held the FCC’s order was a legislative rule because it made a substantive change to prior regulatory obligations rather than merely clarifying existing rules.
- The court denied the petitions for review, leaving the order in effect.
- The court concluded the FCC nevertheless effectively satisfied APA notice-and-comment in substance, despite mislabeling the order as interpretative.
- Any procedural missteps were treated as harmless error because petitioners did not show prejudice or that the outcome was affected.
- The court rejected the request to vacate based on asserted RFA shortcomings on the record presented.

## Legal Principles

- A rule is legislative, not interpretative, when it effects a substantive change in existing regulations or adopts a position inconsistent with prior rules or interpretations.
- Courts evaluate the practical effect of an agency action on regulated parties, not the agency’s label.
- Legislative rules generally require APA notice and an opportunity for meaningful comment under 5 U.S.C. § 553.
- Procedural errors in rulemaking do not warrant vacatur absent prejudice; the APA’s harmless-error principle may preserve agency action when the purposes of notice-and-comment were met in substance.
- RFA-related procedural objections, without a showing warranting judicial relief on the record, may be insufficient to set aside an agency rule.

## Conclusion

The D.C. Circuit determined the FCC’s intermodal number portability order was legislative because it imposed new binding obligations on wireline carriers, but upheld the order because the agency’s process effectively provided notice and an opportunity to comment and any procedural defects were harmless and did not justify vacatur.


U.S. Telecom Ass’n v. FCC, 400 F.3d 29 (D.C. Cir. 2005)