The opening shots in the DC Circuit's review of the Triennial Review Order concluded on December 31st, with briefs filed by the FCC and state commissions, among others. Given the accelerated timeline that the DC Circuit is reviewing the case under, one overarching issue which did not make the parties' briefs (perhaps due, in part, to strict word limitations) is worth noting: did the FCC engage in an unlawful rulemaking process under the Administrative Procedure Act?

To recall some of the lowlights: the FCC voted on a press release in February. In his own press release following the vote on the Order, Commissioner Adelstein candidly acknowledged that some of the Order "quite frankly give[s] me pause" and that the vote on the Order took place "before we have seen a draft reflecting the latest cuts." Commissioner Adelstein added that some of the offices "reached some agreements on major issues at the eleventh hour" and I mean that literally, around 11:00" and that he was "very uncomfortable voting on this item before the offices have seen the draft order, because as we all know, the devil is in the details."

Then Winter turned into Spring, and then Summer. And Saddam was toppled. And Major League Baseball played out much of its regular season. And then, the text of the Order was finally released in early August. (With an errata making substantive changes to the Order a short time thereafter, no less, after a number of challenges already had been filed in various circuit courts). In the end, the FCC's development of the TRO after its supposed vote on it took its practice of issuing a press release before releasing a final decision to a new level, crushing the previous FCC record for dilly-dallying of fifty days.

Prior to the DC Circuit's consolidation of the case (and the fresh round of filings), and through emergency stay petitions before the FCC, parties such as Allegiance and Sage Telecom had made plausible arguments that substantive changes to the TRO following the vote on the press release, following ex parte meetings and the errata, violated the APA. And there would still seem to be a justiciable issue as to whether unprincipled compromises were made before the votes were cast. Unfortunately, the FCC's actions may never receive the scrutiny they so seemingly deserve. Or perhaps this issue was just so 2003.