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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 #1389651 Filed: 08/16/2012 Page 1 of 7
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. )

REPLY IN SUPPORT OF FCC’S MOTION TO DISMISS


Introduction


The Federal Communications Commission (“FCC” or “Commission”)
respectfully submits this reply in further support of its July 30, 2012 motion to
dismiss this case for want of jurisdiction.
As the FCC pointed out in its motion, Accipter filed a petition for review of
the Third Order on Reconsideration in Connect America Fund, 27 FCC Rcd 5622
(May 14, 2012) (“Third Order on Reconsideration”). That order addressed several
petitions for reconsideration and/or clarification of a November 11, 2011
rulemaking order, Connect America Fund, 26 FCC Rcd 17663 (2011)
(“Transformation Order”), which is the subject of pending litigation in the Tenth
Circuit. In re FCC 11-161, No. 11-9900 (10th Cir. filed Dec. 8, 2011).
It is well settled that “except insofar as the request for reconsideration was
based upon new evidence or changed circumstances,” an agency order denying a

USCA Case #12-1258 Document #1389651 Filed: 08/16/2012 Page 2 of 7

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petition for reconsideration “is unreviewable.” Entravision Holdings, LLC v. FCC,
202 F.3d 311, 313 (D.C. Cir. 2000). Because Accipiter relied on neither ground in
its petition for agency reconsideration, the Court “must dismiss” this case “for lack
of jurisdiction.” Id.
In opposing the Commission’s motion to dismiss, Accipiter contends (Resp.
4-9) that documents contemporaneously filed with the petition for review
demonstrated that it is also appealing the Transformation Order. As explained
below, Accipiter is wrong. But even if Accipiter had clearly indicated its intent to
challenge the Transformation Order in addition to the Third Order on
Reconsideration, and even if Accipiter’s characterization of the Third Order on
Reconsideration were correct, the Court would lack jurisdiction over this case on
the independent ground that Accipiter’s purported challenge to the Transformation
Order is “incurably premature.” BellSouth Corp. v. FCC, 17 F.3d 1487, 1489-90
(D.C. Cir. 1994). Thus, Accipiter’s arguments fail to stave off dismissal for want
of jurisdiction.
Discussion

1. Accipiter identified only the Third Order on Reconsideration in its
petition for review, and attached only that Order as Exhibit 1 to its petition. It
specified the Third Order on Reconsideration as “the Ruling Under Review” in its
certificate as to parties, rulings and related cases, and it filed a copy of the Third

USCA Case #12-1258 Document #1389651 Filed: 08/16/2012 Page 3 of 7

3
Order on Reconsideration – and no other FCC order – as the underlying decision
from which its petition arose. It also specified that the Commission’s
Transformation Order was being challenged, not in this case, but in a “related
case” in the U.S. Court of Appeals for the Tenth Circuit. Accipiter thus indicated
that it was seeking review of the Third Order on Reconsideration, and not of the
underlying Transformation Order.
Relying
on
Sinclair Broad. Group, Inc. v. FCC, 284 F.3d 148, 158 (D.C.
Cir. 2002), Accipiter seeks to resurrect its case by contending that its Statement of
Issues “makes clear that it is challenging the Transformation Order.” Resp. 5.
Sinclair is inapposite. In that case, petitioner’s “statement of issues named the
‘new local television ownership regulations’ as the source of each of its issues,”
which “gave notice” that the petitioner “intended to make a substantive challenge
to the underlying [rulemaking order] and not only to the Reconsideration Order.”
Sinclair, 284 F.3d at 323. Here, by contrast, Accipiter’s Statement of Issues refers
simply to “the Order” – repeatedly identified by Accipiter as the Third Order on
Reconsideration. Accipiter, moreover, did not identify a specific Commission
policy or rule in its Statement of Issues that would have made clear any intent to
challenge the Transformation Order. By contrast, the petitioner in Sinclair
specified in its Statement of Issues that it was challenging the FCC’s “new local
television ownership regulations.” Sinclair, 284 F.3d at 323. Because that

USCA Case #12-1258 Document #1389651 Filed: 08/16/2012 Page 4 of 7

4
statement clearly referred to the underlying order from which reconsideration was
sought, the Sinclair Court held that the petitioner had sufficiently indicated its
intent to challenge the underlying order. Sinclair applies when petitioner’s
statement of issues “can only refer” to the underlying order, id. That is not the
case here.
2. Accipiter separately claims that the Court may consider its challenge to
the Third Order on Reconsideration because its petition for reconsideration before
the agency “was based, in part, on new evidence” consisting of “specific data …
showing the financial impact of the Transformation Order on Accipiter.” Resp.
10. However, this “alleged … new evidence … is not evidence at all, but simply
an argument that the Commission made a material error” when it adopted the
Transformation Order. Sw. Bell Tel. Co. v. FCC, 180 F.3d 307, 312 (D.C. Cir.
1999). Specifically, Accipiter relies on these data in an effort to demonstrate that
certain models and inputs in the Transformation Order are erroneous. But under
this Court’s precedent, that does not constitute “new evidence” – only “argument.”
Compare Resp. at 8-10 (describing the impact of alleged errors in certain data and
cost models) with Sw. Bell, 180 F.3d at 312 (holding that “a demonstration that the
method the Commission chose … is less accurate than [petitioner’s] method” is not
“new evidence”).

USCA Case #12-1258 Document #1389651 Filed: 08/16/2012 Page 5 of 7

5
3. Finally, accepting the arguments raised in Accipiter’s opposition, the
Court should dismiss this case for lack of jurisdiction. Even assuming for the sake
of argument that (a) Accipiter’s Statement of Issues had sufficiently demonstrated
an intent to challenge the Transformation Order (see Resp. 4-9), and (b) “[a]ll of”
the issues identified in Accipiter’s Statement of Issues “were raised in [its] petition
for reconsideration/clarification and none was addressed or decided in the Third
Order on Reconsideration” (id. at 7 (emphasis added)), the Court would lack
jurisdiction over this case on the independent ground that Accipiter’s challenge is
“incurably premature.” BellSouth Corp., 17 F.3d at 1498-90.

If Accipiter’s characterization of the agency’s reconsideration order were
correct, that would mean that (a) the Third Order on Reconsideration did nothing
to foreclose Commission consideration of Accipiter’s arguments, which remain
pending before the agency,1 and (b) any challenge to the Transformation Order is
therefore “incurably premature.” BellSouth Corp. v. FCC, 17 F.3d at 1498-90. As
this Court has repeatedly held, a petition for reconsideration pending before the

1 The FCC in the Third Reconsideration Order (27 FCC Rcd at 5631 (¶ 24))
rejected Accipiter’s request to abandon or eliminate the “rate floor” rule, which
limits high-cost universal service support to incumbent LECs charging artificially
low end-user rates. The issues raised by Accipiter in its petition for
reconsideration that were not addressed in paragraph 24 of the Third Order on
Reconsideration
remain pending before the agency. See 27 FCC Rcd at 5645
(¶ 68) (denying Accipiter’s petition for reconsideration “IN PART”).


USCA Case #12-1258 Document #1389651 Filed: 08/16/2012 Page 6 of 7

6
Commission renders the FCC’s order non-final with respect to that party, thereby
requiring the Court to dismiss the case for lack of jurisdiction. Id.; see also
TeleSTAR, Inc. v. FCC, 888 F.2d 132, 133 (D.C. Cir. 1989). Thus, Accipiter’s
arguments in its opposition to the FCC’s motion to dismiss fail to show that the
Court has jurisdiction over this case.
Conclusion

This 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/Maureen K. Flood








Maureen K. Flood
Counsel
Federal
Communications
Commission
Washington,
DC

20554
(202)
418-1740

August 16, 2012

USCA Case #12-1258 Document #1389651 Filed: 08/16/2012 Page 7 of 7
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, Maureen K. Flood, hereby certify that on August 16, 2012, I electronically
filed the foregoing Reply In Support of FCC’s 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/ Maureen K. Flood

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