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Accipiter Communications, Inc. v. FCC & USA, No. 12-1258 (D.C. Cir.)

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Released: August 28, 2012
USCA Case #12-1258 Document #1386366 Filed: 07/30/2012 Page 1 of 5
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Accipiter Communications, Inc.,


)
Petitioner,
)








)
v.
) No.
12-1258








)
Federal
Communications
Commission
)
and United States of America,


)
Respondents. )

MOTION TO DISMISS

AND TO DEFER FILING OF THE RECORD




The Federal Communications Commission moves to dismiss this case for
lack of jurisdiction. The Commission also respectfully moves for leave to defer
the filing of the record in this case until the Court has ruled on the motion to
dismiss.

In the order on review, Connect America Fund, FCC 12-52 (released May
14, 2012) (“Third Order on Reconsideration”), the FCC addressed several
petitions for reconsideration and/or clarification of a November 2011 rulemaking
order, Connect America Fund, 26 FCC Rcd 17663 (2011) (“Transformation
Order”). The Transformation Order, which fundamentally revised the
Commission’s universal service and intercarrier compensation rules, is the subject

USCA Case #12-1258 Document #1386366 Filed: 07/30/2012 Page 2 of 5

2
of pending litigation in the Tenth Circuit. In re FCC 11-161, No. 11-9900 (10th
Cir. filed Dec. 8, 2011).1

Accipiter seeks review only of the Third Order on Reconsideration. It is
well settled, however, that an agency order denying a petition for reconsideration
“is unreviewable except insofar as the request for reconsideration was based upon
new evidence or changed circumstances.” Entravision Holdings, LLC v. FCC, 202
F.3d 311, 313 (D.C. Cir. 2000). Accipiter did not base its reconsideration petition
on either new evidence or changed circumstances. See Third Order on
Reconsideration ¶ 24 (describing Accipiter’s request for reconsideration).
Therefore, the Third Order on Reconsideration – the only order specified in
Accipiter’s petition for review – “is unreviewable,” and the Court “must dismiss
[Accipiter’s] petition for lack of jurisdiction.” Entravision, 202 F.3d at 313; see
also ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 280 (1987).
The Court cannot “fairly infer from [Accipiter’s] petition for review or
nearly contemporaneous filings an intent to seek review” of any order other than
the Third Order on Reconsideration. Entravision, 202 F.3d at 313. Accipiter
attached only the Third Order on Reconsideration to its petition for review.

1 Numerous parties (but not Accipiter) petitioned for review of the Transformation
Order
in several different courts of appeals. On the basis of a lottery conducted by
the Judicial Panel on Multidistrict Litigation, the petitions were consolidated for
review in the Tenth Circuit. See In re Federal Communications Commission,
Connect America Fund
, Consolidation Order (JPML Dec. 14, 2011).

USCA Case #12-1258 Document #1386366 Filed: 07/30/2012 Page 3 of 5

3
Neither the petition for review nor Accipiter’s docketing statement identified any
other order. Likewise, Accipiter’s certificate as to parties, rulings, and related
cases named only the Third Order on Reconsideration as the “Ruling Under
Review.” In addition, its preliminary statement of issues listed only matters
pertaining to that reconsideration order.
In past cases involving similar circumstances, this Court declined to infer
that the petitioner intended to challenge any order other than a reconsideration
order. See, e.g., Entravision, 202 F.3d at 313; Southwestern Bell Tel. Co. v. FCC,
180 F.3d 307, 313 (D.C. Cir. 1999); City of Benton v. NRC, 136 F.3d 824, 825-26
(D.C. Cir. 1998). The Court should reach the same conclusion here. The

USCA Case #12-1258 Document #1386366 Filed: 07/30/2012 Page 4 of 5

4
reconsideration order that Accipiter seeks to challenge is unreviewable.
Accordingly, the Court should dismiss this case for lack of jurisdiction.
Respectfully
submitted,









Sean A. Lev
General
Counsel









Peter Karanjia







Deputy General Counsel









Jacob M. Lewis
Associate
General
Counsel









/s/James M. Carr







James M. Carr
Counsel

Federal
Communications
Commission
Washington,
DC

20554
(202)
418-1740

July 30, 2012

USCA Case #12-1258 Document #1386366 Filed: 07/30/2012 Page 5 of 5
12-1258


IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


Accipiter Communications, Inc., Petitioners

v.

Federal Communications Commission and the
United States of America, Respondents


CERTIFICATE OF SERVICE



I, James M. Carr, hereby certify that on July 30, 2012, I electronically filed
the foregoing Motion to Dismiss with the Clerk of the Court for the United
States Court of Appeals for the D.C. Circuit by using the CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by
the CM/ECF system.

Some of the participants in the case, denoted with asterisks below, are not
CM/ECF users. I certify further that I have directed that copies of the
foregoing document be mailed by First-Class Mail to those persons, unless
another attorney at the same mailing address is receiving electronic service.

Robert F. Reklaitis
Catherine G. O’Sullivan
Leslie Paul Machado
U.S. Department of Justice
LeClairRyan, a Professional Corp.
Antitrust Division, Appellate Section
1101 Connecticut Avenue, N.W.
Room 3224
Suite 600
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20036
Washington, D.C. 20530-0001
Counsel for: Accipiter
Counsel for: USA
Communications, Inc.




/s/ James M. Carr

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