Accipiter Communications, Inc. v. FCC & USA, No. 12-1258 (D.C. Cir.)
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Accipiter Communications, Inc.,
and United States of America,
RESPONSE OF THE FCC TO ACCIPITER COMMUNICATIONS, INC.’S
MOTION TO STRIKE OR, IN THE ALTERNATIVE,
FOR LEAVE TO FILE A RESPONSE
The Federal Communications Commission (“FCC” or “Commission”)
respectfully submits this response to Accipiter Communications, Inc.’s
(“Accipiter”) motion to strike a purportedly “new” argument presented in the
FCC’s August 16, 2012 reply in support of its motion to dismiss this appeal.
Because the FCC properly replied to an argument raised in Accipiter’s response to
the Commission’s motion to dismiss, the Court should deny both Accipiter’s
motion to strike and its alternative request to allow Accipiter to file a surreply.
On July 30, 2012, the FCC moved to dismiss this case for want of
jurisdiction on the ground that Accipiter filed a petition for review of an order that
denied petitions for reconsideration of a prior rulemaking order. See Third Order
on Reconsideration in Connect America Fund, 27 FCC Rcd 5622 (May 14, 2012)
(“Third Order on Reconsideration”). Opposing the FCC’s motion, Accipiter
contended that documents contemporaneously filed with its petition for review –
notably, its Statement of Issues – demonstrated that Accipiter also sought to appeal
the underlying rulemaking order that was the subject of its petition for
reconsideration (see Connect America Fund, 26 FCC Rcd 17663 (2011)
(“Transformation Order”)). Resp. 4-9. According to Accipiter, “[a]ll of” the
issues identified in Accipiter’s Statement of Issues “were raised in [its] petition for
reconsideration and none was decided in the Third Order on Reconsideration,”
Resp. 7, providing the Court jurisdiction to hear its challenges to the underlying
Transformation Order and, by extension, the Third Order on Reconsideration.
Responding to that argument, the FCC in its reply explained that “[i]f
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
consideration of Accipiter’s arguments, which remain pending before the agency,
and (b) any challenge to the Transformation Order is therefore ‘incurably
premature.’” Reply 5 & n.1, quoting BellSouth Corp. v. FCC, 17 F.3d 1487, 1489-
90 (D.C. Cir. 1994) (petition for reconsideration pending before the Commission
renders the FCC’s order non-final with respect to that party, thereby requiring the
Court to dismiss for lack of jurisdiction).
Accipiter now claims that the FCC improperly presented a new argument for
the first time in its reply brief. It is wrong, and its motion to strike should be
It was permissible and appropriate for the FCC to point out on reply that
Accipiter’s argument in response to the FCC’s motion to dismiss would render
incurably premature any challenge to the Transformation Order because that
observation directly “relate[d] to the response” filed by Accipiter. Fed. R. App.
Proc. 27(a)(4). The FCC was addressing Accipiter’s claim that its Statement of
Issues demonstrated an intent to challenge the Transformation Order as well as the
Third Order on Reconsideration and that “[a]ll of” the issues identified in
Accipiter’s Statement of Issues “were raised in [its] petition for reconsideration
and none was decided in the Third Order on Reconsideration.” Resp. 7. The FCC
simply pointed out that if Accipiter’s arguments were correct, the Court still would
lack jurisdiction over the petition for review.1
Nor is it surprising that the FCC did not make this point in its moving
papers: as the FCC showed, Accipiter had not sufficiently indicated any intention
1 See Reply 5 (“Even assuming for the sake of argument that … Accipiter’s
Statement of Issues demonstrated an intent to challenge the Transformation Order
… the Court would lack jurisdiction over this case on the independent ground that
Accipiter’s challenge is ‘incurably premature.’”) (quoting BellSouth, 17 F.3d at
to challenge the Transformation Order. Thus, there was no need for the FCC to
note that a hypothetical challenge to that order also would fail because it would be
incurably premature. But after Accipiter argued in its response to the motion to
dismiss that it did indeed seek to challenge the Transformation Order, it was
entirely appropriate for the FCC to note the infirmities of any such challenge.
Because the FCC’s observation related directly to Accipiter’s response to the
FCC’s motion to dismiss this case, Accipiter’s motion to strike is meritless and
should be denied.
Nor is there any foundation for Accipiter’s concern (Mot. at 3-5) that the
FCC may unreasonably delay action on the remaining issues raised by its petition
for reconsideration. In addition to resolving part of Accipiter’s petition for
reconsideration, see Third Order on Reconsideration, 27 FCC Rcd at 5631, 5645
(¶¶ 24, 68),2 the FCC, as Accipiter concedes (Accipiter Mot. 4, n.1), already has
issued four separate orders addressing multiple petitions for reconsideration of the
November 11, 2011 Transformation Order. To the extent Accipiter believes the
2 As we noted in our reply at 5 n.1, “[t]he FCC in the Third Order on
Reconsideration (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 local exchange carriers 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’).”
FCC in the future unreasonably is delaying action on the remainder of its petition
for reconsideration, it may seek relief under the All Writs Act, 28 U.S.C. § 1651.
This Court should deny Accipiter’s motion to strike or, in the alternative, its
request to file a surreply.
Sean A. Lev
Deputy General Counsel
Richard K. Welch
/s/Maureen K. Flood
Maureen K. Flood
August 28, 2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Accipiter Communications, Inc., Petitioners
Federal Communications Commission and the
United States of America, Respondents
CERTIFICATE OF SERVICE
I, Maureen K. Flood, hereby certify that on August 28, 2012, I electronically
filed the foregoing Response of the Federal Communications Commission to
Accipiter Communications, Inc.’s Motion to Strike Or, In the Alternative,
For Leave to File a Response 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.
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20036
Washington, D.C. 20530-0001
Counsel for: Accipiter
Counsel for: USA
/s/ Maureen K. Flood
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