Cite as: 535 U. S. 467 (2002)
Opinion of the Court
combination rules, 47 CFR §§ 51.315(c)-(f) (1997), draws the incumbents' threshold objection that the challenge is barred by waiver, since the 1999 petition to review the 1997 invalidation of Rule 315(b) did not extend to the Eighth Circuit's simultaneous invalidation of the four companion rules, Rules 315(c)-(f), 120 F. 3d, at 813, 819, n. 39.40 The incumbents must, of course, acknowledge that the Court of Appeals sua sponte invited briefing on the status of Rules 315(c)-(f) 41 on
remand after this Court's reinstatement of Rule 315(b), Iowa Utilities Bd., 525 U. S., at 395, and specifically struck them down again, albeit on its 1997 rationale, 219 F. 3d, at 758-759. But the incumbent carriers argue that the Eighth Circuit exceeded the scope of this Court's mandate when it revisited the unchallenged portion of its earlier holding, so that this Court should decline to reach the validity of Rules 315(c)-(f) today. To do so, they say, would encourage the sort of strategic, piecemeal litigation disapproved in Communist Party of United States v. Subversive Activities Control Bd., 367 U. S. 1, 30-31 (1961):
"The demands not only of orderly procedure but of due procedure as the means of achieving justice according to law require that when a case is brought here for review of administrative action, all the rulings of the agency upon which the party seeks reversal, and which are then available to him, be presented. Otherwise we would be promoting the 'sporting theory' of justice, at the potential cost of substantial expenditures of agency time. To allow counsel to withhold in this Court and save for a later stage procedural error would tend to foist upon
40 AT&T did not raise the issue in the relevant petition for certiorari as it claims. See Pet. for Cert. in AT&T Corp. v. Iowa Utilities Bd., O. T. 1998, No. 97-826, pp. 9-10, 13.
41 See Order in Iowa Utilities Bd. v. FCC, No. 96-3321, etc. (CA8, June 10, 1999), pp. 2-3 ("The briefs should also address whether or not, in light of the Supreme Court's decision, this court should take any further action with respect to . . . § 315(c)-(f)").
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