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FCC Brief, Blanca Tel. Co. v. FCC, No. 12-1365 (D.C. Cir.)

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Released: April 5, 2013
ORAL ARGUMENT NOT YET SCHEDULED
BRIEF FOR RESPONDENTS
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 12-1365

BLANCA TELEPHONE COMPANY, ET AL.,
PETITIONERS,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.

ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

WILLIAM J. BAER
SEAN A. LEV
ASSISTANT ATTORNEY GENERAL
GENERAL COUNSEL


ROBERT B. NICHOLSON
PETER KARANJIA
JAMES J. FREDRICKS
DEPUTY GENERAL COUNSEL
ATTORNEYS


JACOB M. LEWIS
UNITED STATES
ASSOCIATE GENERAL COUNSEL
DEPARTMENT OF JUSTICE

WASHINGTON, D.C. 20530
LAUREL R. BERGOLD

COUNSEL

FEDERAL COMMUNICATIONS COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740


CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES



1. Parties.
The petitioners are Blanca Telephone Company, CTC Telecom, Inc.,
and Farmers Cellular Telephone Company, Inc. The respondents are the
Federal Communications Commission and the United States of America. All
parties that appeared before the agency are referenced in the brief of
petitioners.
2. Rulings under review.
Petitions for Waiver of Section 20.19 of the Commission’s Rules, WT
Docket No. 01-309, Memorandum Opinion and Order, 23 FCC Rcd 3352
(2008) (J.A. 1) and Petitions for Waiver of Section 20.19 of the Commission’s
Rules, WT Docket No. 01-309, Order on Reconsideration, 27 FCC Rcd 9814
(2012) (J.A. 55).
3. Related cases.
This case has not previously been before this Court or any other court.
Commission counsel are unaware of any pending cases related to this one.






TABLE OF CONTENTS


Table Of Authorities ........................................................................................ iii 
Glossary ........................................................................................................... vi 
Statement Of Issues Presented .......................................................................... 1 
Statutes And Regulations .................................................................................. 2 
Counterstatement Of The Case ......................................................................... 2 
A.  Hearing Aid Compatibility Act And
Implementing Rules .................................................................. 2 
B.  Compliance With Section 20.19(d)(2) ...................................... 6 
C.  Order On Review ...................................................................... 8 
D.  Reconsideration Proceedings .................................................. 11 
Standard Of Review ........................................................................................ 15 
Summary Of Argument ................................................................................... 16 
Argument ......................................................................................................... 19 
I.  The Commission Reasonably Denied The Waivers
Because Blanca, CTC, And Farmers Had Not Shown
Diligent Efforts To Procure And Offer Inductive
Coupling-Compliant Handsets. ........................................................ 19 
II.  The Commission Reasonably Determined That
Petitioners Were Not Similarly Situated To Carriers
That Received Waivers. ................................................................... 22 
A.  Petitioners Were Not Similarly Situated With The
Group Of Carriers Achieving Full Compliance
By January 1, 2007. ................................................................ 23 
B.  Petitioners Were Not Similarly Situated With i
Wireless. .................................................................................. 28 
i

C.  Petitioners Were Not Similarly Situated With The
Carriers Granted Waivers In The 2007 GSM
Waiver Order
. ......................................................................... 31 
III.  The Commission Used Lawful Procedures In
Adjudicating Petitioners’ Waiver Petitions. .................................... 34 
A.  The Commission’s Waiver Decisions Did Not
Require Notice-And-Comment Rulemaking
Procedures. .............................................................................. 34 
B.  The Commission Did Not Violate The Paperwork
Reduction Act. ........................................................................ 36 
IV.  The Ex Parte Submission Did Not Taint The
Administrative Process. ................................................................... 37 
Conclusion ....................................................................................................... 41 
ii

TABLE OF AUTHORITIES

CASES

 
Ad Hoc Telecomm. Users Comm. v. FCC, 572 F.3d
903 (D.C. Cir. 2009) .................................................................................... 33
Air Canada v. DOT, 148 F.3d 1142 (D.C. Cir.
1998) ............................................................................................................ 40
AT&T Corp. v. FCC, 220 F.3d 607 (D.C. Cir. 2000) ..................................... 26
BDPCS, Inc. v. FCC, 351 F.3d 1177 (D.C. Cir.
2003) ............................................................................................................ 15
*
Benkelman Tel. Co. v. FCC, 220 F.3d 601 (D.C.
Cir. 2000) ..................................................................................................... 37
Dixon v. District of Columbia, 666 F.3d 1337 (D.C.
Cir. 2011) ..................................................................................................... 16
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313
(1993) .......................................................................................................... 16
FCC v. Fox Television Stations., Inc., 556 U.S. 502
(2009) .......................................................................................................... 35
Freeman Eng’g Assocs. v. FCC, 103 F.3d 169 (D.C.
Cir. 1997) ..................................................................................................... 39
Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S.
356 (1973) ................................................................................................... 16
Lichoulas v. FERC, 606 F.3d 769 (D.C. Cir. 2010) ................................. 38, 39
*
Mobile Relay Assocs. v. FCC, 457 F.3d 1 (D.C. Cir.
2006) ..................................................................................................... 23, 26
*
Morris Commc’ns, Inc. v. FCC, 566 F.3d 184 (D.C.
Cir. 2009) ..................................................................................................... 15
Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) ............................................ 15
Mountain Solutions Ltd. v. FCC, 197 F.3d 512
(D.C. Cir. 1999) ........................................................................................... 19
Nat’l Ass’n of Broadcasters v. FCC, 569 F.3d 416
(D.C. Cir. 2009) ........................................................................................... 36
iii

Nat’l Tel. Co-op. Ass’n v. FCC, 563 F.3d 536 (D.C.
Cir. 2009) ..................................................................................................... 15
Nuvio Corp. v. FCC, 473 F.3d 302 (D.C. Cir. 2006) ...................................... 26
Occidental Petroleum Corp. v. SEC, 873 F.2d 325
(D.C. Cir. 1989) .................................................................................... 34, 35
Omnipoint Corp. v. FCC, 213 F.3d 720 (D.C. Cir.
2000) ............................................................................................................ 19
Press Broad. Co. v. FCC, 59 F.3d 1365 (D.C. Cir.
1995) ............................................................................................................ 38
Prof. Air Traffic Controllers Org. v. FLRA, 685
F.2d 547 (D.C. Cir. 1982) ........................................................................... 39
United States Telecom Ass’n v. FCC, 400 F.3d 29
(D.C. Cir. 2005) .................................................................................... 35, 40

STATUTES

 
5 U.S.C. § 553(b) ............................................................................................. 34
5 U.S.C. § 553(c) ............................................................................................. 34
5 U.S.C. § 554(a) ............................................................................................. 35
5 U.S.C. § 554(b)(3) ........................................................................................ 35
5 U.S.C. § 554(c)(1) ........................................................................................ 35
5 U.S.C. § 557(c)(1) ........................................................................................ 35
5 U.S.C. § 557(c)(2) ........................................................................................ 35
*
5 U.S.C. § 706 ................................................................................................. 40
5 U.S.C. § 706(2)(A) ....................................................................................... 15
44 U.S.C. §§ 3501 et seq. ................................................................................ 36
44 U.S.C. § 3507(a) ......................................................................................... 36
*
47 U.S.C. § 405(a) ........................................................................................... 33
47 U.S.C. § 610 ................................................................................................. 2
47 U.S.C. § 610(b)(1) ........................................................................................ 2
47 U.S.C. § 610(b)(2)(B) .................................................................................. 3
iv

REGULATIONS

 
47 C.F.R. § 1.1206 .......................................................................................... 38
47 C.F.R. § 1.1208 .......................................................................................... 38
*
47 C.F.R. § 1.925(b)(3) ........................................................................ 8, 27, 28
47 C.F.R. § 20.19(b)(1) (2007) ......................................................................... 4
47 C.F.R. § 20.19(b)(2) (2007) ......................................................................... 4
47 C.F.R. § 20.19(c) (2007) .............................................................................. 5
47 C.F.R. § 20.19(d) (2007) .............................................................................. 5
47 C.F.R. § 20.19(d)(2) (2007) .......................................................... 4, 5, 6, 35

ADMINISTRATIVE DECISIONS

 
In the Matter of Blanca Tel. Co., Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd
9398 (2008) ................................................................................................. 14
In the Matter of CTC Telecom, Inc., Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd
3906 (2008) ................................................................................................. 14
In the Matter of Farmers Cellular Telephone, Inc.,
Notice of Apparent Liability for Forfeiture, 23
FCC Rcd 8622 (2008) ................................................................................. 14
*
Section 68.4(a) of the Commission’s Rules
Governing Hearing Aid-Compatible Services,
Report and Order, 18 FCC Rcd 16752 (2003) ..................................... 3, 4, 5
Section 68.4(a) of the Commission’s Rules
Governing Hearing Aid-Compatible Telephones,
Memorandum Opinion and Order, 22 FCC Rcd
20459 (2007) .................................................................................. 13, 31, 32


* Cases and other authorities principally relied upon are marked with
asterisks.

v

GLOSSARY

APA



Administrative Procedure Act
Blanca



Blanca Telephone Co.
CDMA



Code Division Multiple Access
Commission


Federal Communications Commission
CTC



CTC Telecom, Inc.
Farmers



Farmers Cellular Telephone Company
GSM



Global System for Mobile Communications
HAC Act


The Hearing Aid Compatibility Act of 1988
OMB



Office of Management and Budget
PRA



Paperwork Reduction Act




vi

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

NO. 12-1365

BLANCA TELEPHONE COMPANY, ET AL.,
PETITIONERS,
V.
FEDERAL COMMUNICATIONS COMMISSION
AND UNITED STATES OF AMERICA,
RESPONDENTS.

ON PETITION FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION

BRIEF FOR RESPONDENTS

STATEMENT OF ISSUES PRESENTED

Three digital wireless service providers – petitioners Blanca Telephone
Co. (“Blanca”), CTC Telecom, Inc. (“CTC”), and Farmers Cellular
Telephone Co. (“Farmers”) – challenge an order of the Federal
Communications Commission (“Commission”), denying their petitions for
waiver of an FCC rule requiring the providers to offer by September 18, 2006
telephone equipment that is compatible with certain types of hearing aids.
Section 68.4(a) of the Commission’s Rules Governing Hearing Aid-
Compatible Telephones, Memorandum Opinion and Order, 23 FCC Rcd 3352

(2008) (“Order”) (J.A. 1), recon. denied, 27 FCC Rcd 9814 (2012)
(“Reconsideration Order”) (J.A. 55). The issues before the Court are:
1. Whether the Commission reasonably denied the waivers.
2. Whether the Commission used lawful procedures in denying the
waivers.
3. Whether the Commission properly concluded that the filing of an
impermissible ex parte pleading in the administrative docket did not so taint
the administrative process as to preclude denial of the waivers.

STATUTES AND REGULATIONS

Pertinent statutes and regulations are set forth in the statutory
addendum to this Brief.

COUNTERSTATEMENT OF THE CASE

A. Hearing Aid Compatibility Act And Implementing

Rules

The Hearing Aid Compatibility Act of 1988 (“HAC Act”), 47 U.S.C.
§ 610, ensures that hearing-impaired persons have reasonable access to
telephone service. With enumerated exemptions (including one for wireless
telephones), the HAC Act requires that all telephones manufactured or
imported for use in the United States must meet technical standards for
compatibility with hearing aid devices. 47 U.S.C. § 610(b)(1). The HAC Act
directs the Commission periodically to “assess the appropriateness of
2

continuing in effect” the statutory exemptions and to “revoke or otherwise
limit” any exemption if specified criteria are met. 47 U.S.C. § 610(b)(2)(B).
In 2003, the Commission modified the HAC Act’s exemption for
wireless telephones by requiring digital wireless telephones to be accessible
to individuals with hearing aids. See Section 68.4(a) of the Commission’s
Rules Governing Hearing Aid-Compatible Services, Report and Order, 18
FCC Rcd 16752, 16757 (¶ 8) (2003) (“2003 Rulemaking Order”). In doing
so, the Commission determined that the public interest required “extend[ing]
to individuals with hearing disabilities the social, professional, and
convenience benefits” offered by digital wireless service. Id. at 16755 (¶ 4).
Moreover, given the significant number of calls to 911 for emergency
services placed by digital wireless telephones, the Commission found that
access to such telephones by individuals with hearing loss is “critical” to the
preservation of public health and safety. Id.

In its 2003 Rulemaking Order, the Commission adopted two sets of
technical standards for determining whether digital wireless handsets are
accessible with hearing aids or cochlear implants: (1) a standard for radio
frequency interference to enable use of digital wireless telephones by persons
with hearing aids operating in acoustic coupling mode, 47 C.F.R.
3

§ 20.19(b)(1) (2007),1 and (2) a standard for handset production to enable use
of wireless phones by persons with hearing aids operating in telecoil mode,
47 C.F.R. § 20.19(d)(2) (2007).2 The first type of hearing aid-telephone
compatibility is known as “acoustic coupling”; the second type as “inductive
coupling.” (The Commission amended section 20.19 effective June 6, 2008.
All references in this brief are to the version in effect prior to that
amendment.)

Within a specified deadline, the Commission’s rules required digital
wireless telephone manufacturers to make available to wireless providers –
and those providers, in turn, to offer to their retail consumers – specified
numbers or percentages of digital handsets per air interface that were

1 A hearing aid that operates in acoustic coupling mode contains a
microphone that “picks up surrounding sounds, desired and undesired, and
converts them into electrical signals. The electrical signals are amplified as
needed and then converted back into sound by the hearing aid speaker.” 2003
Rulemaking Order
, 18 FCC Rcd at 16763 (¶ 22).
2 A hearing aid that operates in telecoil mode works differently from one
that operates in acoustic coupling mode. “In telecoil mode, with the
microphone turned off, the telecoil picks up the audio signal-based magnetic
field generated by the voice coil of a dynamic speaker in hearing aid-
compatible telephones, audio loop systems, or powered neck loops. The
hearing aid converts the magnetic field into electrical signals, amplifies them
as needed, and converts them back into sound via the speaker.” Id.
4

compliant with each technical standard. See 47 C.F.R. § 20.19(c),(d) (2007).3
As relevant here, the Commission generally required affected digital wireless
service providers to make available in their retail stores at least two handset
models per air interface that meet the compatibility standard for inductive
coupling. See 47 C.F.R. § 20.19(d)(2). The Commission’s rule specified that
they were to do so by no later than September 18, 2006. Id.

The Commission also required digital wireless handset manufacturers
and service providers to file reports enabling the Commission to monitor their
progress in implementing the hearing aid compatibility requirements and to
ascertain the date by which they became compliant. The Commission
required these compliance reports to be filed on a biannual basis in the first
three years of implementation and then thereafter on an annual basis through
the fifth year of implementation. See 2003 Rulemaking Order, 18 FCC Rcd
at 16787 (¶ 89).

3 “The term ‘air interface’ refers to the technical protocol that ensures
compatibility between mobile radio service equipment, such as handsets, and
the service provider’s base stations.” Order, 23 FCC Rcd at 3353 n.3 (J.A.
2). Examples of air interfaces are Code Division Multiple Access (“CDMA”)
and Global System for Mobile Communications (“GSM”). Id.
5

B. Compliance With Section 20.19(d)(2)

A large number of digital wireless service providers, primarily “Tier
III” carriers,4 failed to meet the deadline prescribed in section 20.19(d)(2) for
offering a sufficient number of handset models equipment satisfying the
hearing aid compatibility standard for inductive coupling. As a result, more
than one hundred service providers – including petitioners CTC, Farmers, and
Blanca – asked the FCC to waive the September 18, 2006 deadline. See
Order, 23 FCC Rcd at 3353 (¶ 1) (J.A. 2). Many of the parties seeking
waivers told the Commission that they had not complied with section
20.19(d)(2) “because the requisite hearing aid-compatible handsets were
unavailable to them.” Order, 23 FCC Rcd at 3355-56 (¶ 5) (J.A. 4-5).
Blanca, CTC, and Farmers, however, urged the Commission to waive section
20.19(d)(2) because they could not purchase inductive coupling-compliant
handsets from their existing equipment suppliers, i.e., those suppliers from
which they had purchased equipment previously. Blanca Waiver Petition
(Sept. 18, 2006) at 2 (J.A. 147); CTC Waiver Petition (Sept. 18, 2006) at 2
(J.A. 150); Farmers Waiver Petition (Sept. 18, 2006) at 2 (J.A. 153).

4 “Tier III carriers are non-nationwide wireless radio service providers with
500,000 or fewer subscribers as of the end of 2001.” Order, 23 FCC Rcd at
3353 n.2. (J.A. 2).
6

According to their compliance reports, CTC and Farmers failed to offer
two handset models that met the inductive coupling standard until March 13,
2007 and June 6, 2007, respectively. See CTC Report (June 7, 2007) at 2
(J.A. 207); Farmers Report (June 12, 2007) at 1 (J.A. 209).5 On March 29,
2007, Blanca initially reported to the Commission that it had satisfied the
agency’s rule by offering four handset models that met the compatibility
standard for inductive coupling. Blanca Report (March 29, 2007) at 2 (J.A.
197). But the company subsequently admitted, in a supplemental report, that
it had not achieved full compliance with the inductive coupling requirement
until June 20, 2007. Blanca Supplemental Report (June 21, 2007) at 2, 3
(J.A. 215, 216).6

5 CTC subsequently informed the Commission that its reported compliance
date of March 13, 2007 “may have been a factual error[,]” because an invoice
“appears to show that CTC received its second inductive coupling compliant
handset . . . in January 2007.” Blanca, CTC & Farmers Reconsideration
Petition (Mar. 28, 2008) at 3 n.4 (J.A. 286)
6 Blanca attributed its earlier, incorrect claim about compliance by March
29, 2007 to its “confusion … about the meaning of ‘HAC compliance.’” Id. at
2 (J.A. 215). According to Blanca, it “had overlooked that the T-
coil/inductive coupling requirement had become effective” and
acknowledged that the four handsets reported in its March 29, 2007 Report as
compliant as to inductive coupling actually were “acoustic coupling . . .
compliant handsets.” Id. Blanca told the Commission that once it “realized”
it was in violation of the Commission’s hearing aid compatibility rules, it
“promptly ordered and received” inductive coupling-compliant equipment.
Id. at 3 (J.A. 216).
7


C. Order On Review

On February 27, 2008, the Commission released the Order granting,
denying, or dismissing 46 waiver petitions for extensions of the September
18, 2006 deadline to provide handsets that meet the hearing aid compatibility
standard for inductive coupling. Order, 23 FCC Rcd 3352 (J.A. 1).
The Commission explained that, under its rules, an applicant for a
waiver must show that (a) “the underlying purpose of the rule[] would not be
served or would be frustrated by application to the instant case, and grant
would be in the public interest,” or (b) “in view of [the] unique or unusual
factual circumstances, application of the rule[] would be inequitable, unduly
burdensome, or contrary to the public interest, or the applicant[s] ha[ve] no
reasonable alternative.” Id. at 3356-57 (¶ 7) (J.A 5-6). See 47 C.F.R.
§ 1.925(b)(3).
The Commission held that a group of Tier III waiver applicants that
had achieved full compliance with the inductive coupling compatibility
requirements by January 1, 2007 had satisfied that “rigorous waiver
standard[].” Order, 23 FCC Rcd at 3361 (¶ 15) (J.A. 10). The Commission
explained that only very few handset models had been received and certified
as compliant with the hearing aid compatibility standards for inductive
8

coupling before August and September of 2006. Id. at 3357, 3362 (¶¶ 8, 16)
(J.A. 6, 11). As a result, the Commission explained that carriers had “little
time . . . to purchase such [models] and make them available in all company
stores in time to comply” with the inductive coupling compatibility
requirement – a process that “typically takes weeks or even months” after
certification has occurred. Id. at 3362, 3383 (¶¶ 16, 75) (J.A. 11, 32).
Compounding that difficulty, the Commission noted, an additional eight
handset models had not been certified until after that deadline had passed and
thus had been unavailable to service providers on September 18, 2006. Id. at
3357 (¶ 8) (J.A. 6). Even after they had purchased inductive coupling-
compliant handsets, the Commission explained, the Tier III applicants had
“typically experienced significant delays in obtaining shipping commitments
from their handset suppliers because handset manufacturers filled orders first
for the larger Tier I and II carriers.” Id. at 3362 (¶ 16) (J.A. 11).
Given these circumstances, the Commission determined that the failure
of this group of Tier III carriers to offer at least two inductive coupling-
compliant handset models by the September 18, 2006 deadline “could not
reasonably have been avoided.” Id. at 3361 (¶ 15) (J.A. 10). The
Commission further concluded that the “time frames within which these
carriers came into compliance” – “on or shortly before January 1, 2007” –
9

were “reasonable under the circumstances and reflect the diligence of their
efforts.” Id. at 3362 (¶ 17) (J.A. 11). Indeed, the agency explained, “a Tier
III carrier exercising reasonable diligence might have required this much time
to resolve issues involved in identifying, testing, and ultimately selling
inductive coupling-compliant handsets.” Id. The Commission therefore
granted these carriers waivers for the “modest amount of additional time [that
they needed] to come into compliance with the inductive coupling
compatibility requirement.” Id. at 3361 (¶ 15) (J.A. 10).
In contrast, the Commission denied the more extended waivers sought
by a number of other Tier III carriers, including Blanca, CTC, and Farmers,
because those carriers had failed to show they had exercised sufficient
diligence in seeking to obtain inductive coupling-compliant handsets. Id. at
3364-65 (¶ 22) (J.A. 13-14). The Commission explained, for example, that
these carriers could not show sufficient diligence simply by “contact[ing]
[their] existing vendors on a monthly basis.” Id. at 3365 (¶ 22) (J.A. 14).
The Commission pointed out that “the great majority of the Tier III carriers
were able to achieve compliance within a few months of the deadline,” and
that Blanca, CTC, and Farmers had not presented any “unique facts or
circumstances to clearly distinguish their situation from other Tier III carriers
that were able to comply by January 1, 2007, or before.” Id.
10

D. Reconsideration Proceedings

In an order released August 14, 2012, the Commission ruled on several
petitions for reconsideration of the Order that had been filed by Tier III
service providers that had been denied waivers of section 20.19(d)(2).
Reconsideration Order, 27 FCC Rcd at 9814-15 (¶¶ 1-2) (J.A. 55-56). The
Commission granted some of the reconsideration petitions, such as the joint
petition filed by Iowa Wireless Services, LLC and other related licensees
doing business as i wireless (collectively “i wireless”), and denied others,
including the joint petition filed by Blanca, CTC, and Farmers. Id. at 9815
(¶ 2) (J.A. 56).
Even though i wireless had not achieved full compliance until March
22, 2007, the Commission on reconsideration determined that it had
demonstrated due diligence in its efforts to obtain inductive coupling-
compliant handsets and thus granted its waiver petition. The Commission
pointed out, for example, that i wireless had shown, through inter alia regular
contacts with manufacturers and distributors, that it had identified the
authorized distributors for particular manufacturers, had ascertained when
compliant handsets would become available from these distributors, and had
purchased those handsets as soon as they were available. Reconsideration
Order, 27 FCC Rcd at 9819 (¶ 12) (J.A. 60). The Commission pointed out
11

further that i wireless’ petition, supported by a sworn declaration and
affidavit, documented with detailed timelines i wireless’ conscientious efforts
to obtain fourteen different handset models. Id. See i wireless
Reconsideration Petition (March 27, 2008) (J.A. 221).
In contrast, the Commission explained that Blanca, CTC, and Farmers
“provide[d] very little in the way of new information to demonstrate that they
[had] exercised reasonable diligence in their attempts to obtain compliant
handsets.” Reconsideration Order, 27 FCC Rcd at 9823-24 (¶ 22) (J.A. 64-
65). “Regardless of how often these carriers contacted their existing vendors
. . . they do not suggest that they investigated alternative suppliers, as they
should have done in the exercise of reasonable diligence when their existing
vendors could not satisfy their requirements.”
7
Id.
In addition, the Commission rejected the carriers’ objection that the
agency had established an “alternate deadline” of January 1, 2007 “without
notice.” Id. at 9822 (¶ 19) (J.A. 63). To the contrary, the Commission
pointed out, it had simply “granted waivers” of the clearly established

7 The Commission found that CTC’s submission of a January 25, 2007
invoice for inductive coupling-compliant equipment did not warrant the grant
of a waiver. The Commission reasoned not only that CTC had failed to
“provide a sworn declaration establishing the authenticity of [its] invoice,”
but also that its purported purchase of an inductive coupling-compliant
handset at the end of January 2007 did not show due diligence. Id.

12

September 18, 2006 deadline to carriers that had demonstrated “reasonably
diligent efforts to come into compliance” with that deadline. Id. The
Commission explained that it had inferred that those Tier III carriers that had
expended the effort necessary to achieve full compliance by January 1, 2007
“were more likely to have met the standard of reasonable diligence.” Id.
The Commission also rejected the claim that its denials of waivers
were inconsistent with its grant of waivers of the acoustic coupling
compatibility requirements in a prior order. See Section 68.4(a) of the
Commission’s Rules Governing Hearing Aid-Compatible Telephones,
Memorandum Opinion and Order, 22 FCC Rcd 20459 (2007) (“2007 GSM
Waiver Order”). The Commission explained that the parties in the 2007
GSM Waiver Order reasonably, but mistakenly, thought they were compliant
based upon erroneous information provided by their vendors. In this case, by
contrast, Blanca, CTC, and Farmers had been “‘correctly advised by their
vendors that they could not be timely supplied with [hearing aid-compatible]
handsets.’” Reconsideration Order, 27 FCC Rcd at 9823 (¶ 21) (J.A. 64)
(quoting Blanca, CTC & Farmers Reconsideration Petition at 13 n.17 (J.A.
296) (emphasis added).
Finally, the Commission rejected the contention that it should have
granted the waivers on the basis of a “procedural violation” resulting from the
13

Commission’s receipt of the Consolidated Opposition filed by two
organizations for people with hearing loss urging that any waivers granted
should not extend the deadline for compliance beyond January 1, 2007. Id.
at 9824 (¶ 23) (J.A. 65). Although the Commission agreed that the
Consolidated Opposition had been filed in violation of the Commission’s
rules, it found that Blanca, CTC, and Farmers had not suffered prejudice,
since the Commission “would have reached the same result with or without
consideration” of the improper filing. Id. at 9825-26 (¶ 26) (J.A. 66-67). The
Commission also observed that Blanca, CTC and Farmers “had ample
opportunity to discuss and address the Consolidated Opposition in several of
their filings, and vacating the [Order] to give them a further such opportunity
would serve no purpose.” Id. at 9826 (¶ 26) (J.A. 67).8

8 In 2008, the Commission’s staff instituted monetary forfeiture proceedings
against Blanca, CTC, and Farmers for their “willful and repeated” failure to
comply with the Commission’s inductive coupling-compatible handset
deployment requirements. In the Matter of Blanca Tel. Co., Notice of
Apparent Liability for Forfeiture, 23 FCC Rcd 9398, 9404 (¶ 13) (2008); In
the Matter of CTC Telecom, Inc.
, Notice of Apparent Liability for Forfeiture,
23 FCC Rcd 3906, 3912 (¶ 13) (2008); In the Matter of Farmers Cellular
Telephone, Inc.
, Notice of Apparent Liability for Forfeiture, 23 FCC Rcd
8622, 8628 (¶ 13) (2008). Those proceedings remain pending before the
Commission and are not at issue in this case.

14

STANDARD OF REVIEW

Blanca, CTC, and Farmers bear a heavy burden to establish that the
Order on review is “arbitrary, capricious [or] an abuse of discretion.” 5
U.S.C. § 706(2)(A). Under this “highly deferential” standard, this Court
presumes the validity of agency action. E.g., Nat’l Tel. Co-op. Ass’n v. FCC,
563 F.3d 536, 541 (D.C. Cir. 2009). The Court must affirm unless the
Commission failed to consider relevant factors or made a clear error in
judgment. E.g., Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
This Court’s application of the arbitrary-and-capricious standard is
particularly deferential when reviewing an agency decision declining to
waive a generally applicable rule. “[R]eview of an agency’s denial of a
waiver” may result in reversal “only when ‘the agency’s reasons are so
insubstantial as to render that denial an abuse of discretion.’” Morris
Commc’ns, Inc. v. FCC, 566 F.3d 184, 188 (D.C. Cir. 2009) (quoting
BDPCS, Inc. v. FCC, 351 F.3d 1177, 1181-82 (D.C. Cir. 2003) (citation
omitted).
Blanca, CTC, and Farmers also bear a heavy burden in seeking to
establish that the Commission violated the Fifth Amendment’s Due Process
Clause guarantee of equal protection. Where, as here, the government
15

“neither proceeds along suspect lines nor infringes fundamental constitutional
rights,” its classification “must be upheld against equal protection challenge if
there is any reasonably conceivable state of facts that could provide a rational
basis” for it. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). See
Dixon v. District of Columbia, 666 F.3d 1337, 1339, 1342-44 (D.C. Cir.
2011). To establish such an equal protection violation, petitioners have the
“burden ‘to negative every conceivable basis which might support’” the
challenged action. Beach, 508 U.S. at 314 (quoting Lehnhausen v. Lake
Shore Auto Parts Co., 410 U.S. 356, 364 (1973)).

SUMMARY OF ARGUMENT

1. The Commission reasonably denied petitioners Blanca, CTC and
Farmers waivers of the September 18, 2006 deadline for offering hearing aid-
compatible digital wireless handsets because those carriers failed to show that
they diligently sought to comply with the Commission’s inductive coupling-
compatibility equipment requirement.
Substantial record evidence shows that, even after compliant handsets
became widely available in the marketplace, petitioners made little effort to
obtain them: instead of identifying the vendors that offered compliant
equipment and seeking out that equipment from those vendors, petitioners did
nothing more than make intermittent inquiries of their existing equipment
16

suppliers. In light of their limited efforts, and given that they remained non-
compliant longer than the many Tier III carriers that achieved full compliance
by January 1, 2007, the Commission acted well within its discretion in
denying petitioners’ requests for more substantial extensions of time.
2. Nor was the Commission compelled to grant petitioners’ waiver
requests because it had granted other waiver requests that had involved
different circumstances. The Commission granted waivers to a group of Tier
III carriers that that came into compliance by January 1, 2007 – which neither
Blanca, CTC nor Farmers did – because those carriers engaged in reasonably
diligent efforts to satisfy the inductive coupling rule. The Commission
granted i wireless and related carriers waivers because they had documented
their conscientious efforts to identify and to procure compliant equipment.
Petitioners did no such thing.
Nor are petitioners similarly situated to those who received waivers
under the Commission’s 2007 GSM Waiver Order. Those persons had
reasonably (albeit erroneously) believed that they were in compliance with
the Commission’s rule because their suppliers represented that the equipment
purchased satisfied the relevant technical standard for hearing aid
compatibility. In contrast, petitioners here had not obtained equipment that
17

they had any reason to believe complied with the Commission’s inductive
coupling rule.
3. The Commission’s waiver decisions were also procedurally proper.
The Commission was under no obligation to employ notice-and-comment
rulemaking procedures to resolve the waiver petitions. Nor did it amend the
September 18, 2006 compliance deadline by explaining that compliance by
January 1, 2007 was evidence of reasonable diligence that might support a
waiver. There was also no violation of the Paperwork Reduction Act
(“PRA”) when the Commission noted that CTC’s late-filed invoice had not
been authenticated by a sworn declaration. In any event, the Commission
determined that the invoice, whether or not properly authenticated, did not
show that CTC exercised due diligence in seeking to comply with the
Commission’s rules.
4. Finally, the fact that the Commission received an impermissible ex
parte Consolidated Opposition to the waiver requests from two groups
representing persons with hearing loss did not so taint the administrative
process as to preclude the Commission from denying the waivers. Because
the Consolidated Opposition was filed in the public docket, petitioners had
ample opportunity to address it in the administrative proceedings. In any
event, as the Commission explained, it would have reached the same result
18

even if the Consolidated Opposition had not been filed. Any error was
therefore plainly harmless.

ARGUMENT

I.

THE COMMISSION REASONABLY DENIED THE
WAIVERS BECAUSE BLANCA, CTC, AND
FARMERS HAD NOT SHOWN DILIGENT
EFFORTS TO PROCURE AND OFFER INDUCTIVE
COUPLING-COMPLIANT HANDSETS.

The Commission reasonably denied waivers to Blanca, CTC, and
Farmers because the companies failed to show that they had made reasonably
diligent efforts to procure and to offer to consumers inductive coupling-
compliant equipment as required by the Commission’s hearing aid
compatibility rule. See Order, 23 FCC Rcd at 3364-65 (¶ 22) (J.A. 13-14);
Reconsideration Order, 27 FCC Rcd at 9824 (¶ 22) (J.A. 65). On review,
Blanca, CTC, and Farmers fail to satisfy their “‘heavy’ burden” to
demonstrate that the Commission abused its discretion. Omnipoint Corp. v.
FCC, 213 F.3d 720, 721 (D.C. Cir. 2000) (quoting Mountain Solutions Ltd. v.
FCC, 197 F.3d 512, 517 (D.C. Cir. 1999).
Even after most other Tier III carriers were offering compliant
equipment models, Blanca, CTC, and Farmers remained in violation of the
Commission’s inductive coupling-compatible handset deployment
requirement. Order, 23 FCC Rcd at 3365 (¶ 22) (J.A. 14). As the record
19

evidence shows, Blanca, CTC, and Farmers sought inductive coupling-
compliant equipment only from their existing vendors instead of seeking out
alternative sources of compliant equipment when their vendors were unable
to provide them with that equipment. See Reconsideration Order, 27 FCC
Rcd at 9824 (¶ 22) (J.A. 65); Blanca Waiver Petition at 2 (J.A. 147); CTC
Waiver Petition at 2 (J.A. 149); Farmers Waiver Petition at 2 (J.A. 153).
Moreover, these carriers provided no explanation for their failure to seek out
alternative suppliers. In other words, the companies chose to remain out of
compliance with the requirement that they offer inductive coupling-compliant
equipment until such time as they were able to procure compliant equipment
from their preferred suppliers. Id. The Commission reasonably determined
that petitioners’ actions demonstrated a lack of due diligence. Id.
Moreover, Blanca all but admitted that its non-compliance with the
Commission’s rule was its own fault. As it told the Commission in its March
29, 2007 compliance report, it had completely “overlooked” that the
“inductive coupling requirement had become effective” over six months
earlier. Blanca Supplemental Report at 2 (J.A. 215). Blanca acknowledged
that it made an “embarrassing” “error”: it thought that it had fully complied
with the Commission’s hearing aid compatibility rules simply by offering
equipment that complied with the acoustic coupling-compatibility
20

requirement. Id. at 2, 3 (J.A. 215, 216). As to the separate inductive
coupling-compatibility requirement, Blanca conceded that “the ball was . . .
dropped.” Id. at 3 (J.A. 216). Blanca cannot claim to have made diligent
efforts to comply with the inductive coupling-compatibility requirement
when, by its own admission, it did not know that this requirement existed
more than six months after it became effective.
Before this Court, petitioners contend that because “the Commission
did not previously require that carriers alter their established business
relationships to comply with the HAC requirements,” they lacked “prior
notice” of this requirement. Petitioners’ Brief at 33. But the Commission’s
rules required petitioners to offer in their retail stores two handset models that
complied with the Commission’s inductive coupling compatibility standards.
Petitioners were on notice of that legal requirement. In order to satisfy that
obligation, Blanca, CTC, and Farmers needed to take whatever steps were
necessary to procure inductive coupling-compatible equipment, even if that
meant purchasing such equipment from sources other than their existing
vendors.
Petitioners also contend that the Commission erred in stating that “the
great majority of the Tier III carriers were able to achieve compliance within
a few months of the deadline” (Order, 23 FCC Rcd at 3365 (¶ 22) (J.A. 14)),
21

because 59 percent of “Tier III carriers seeking waiver did not obtain
compliant handsets” until after January 1, 2007. Petitioners’ Brief at 24
(emphasis added).
As the Commission explained, however, petitioners’ calculation
“ignores those Tier III carriers that did not seek waivers[,]” Reconsideration
Order, 27 FCC Rcd at 9822 n. 57 (J.A. 63) – presumably because they had
been able to comply by the September 18, 2006 deadline. In any event,
petitioners’ dispute over whether a “majority” of Tier III carriers were in
compliance with the Commission’s inductive coupling rules as of January 1,
2007 is beside the point. As the Commission explained on reconsideration,
the undisputable fact that a “large number” of Tier III carriers “achieved
compliance on or before January 1, 2007” provides sufficient evidence that a
Tier III carrier could have obtained inductive coupling-compliant equipment
by that date “through reasonably diligent efforts.” Id.

II.

THE COMMISSION REASONABLY DETERMINED
THAT PETITIONERS WERE NOT SIMILARLY
SITUATED TO CARRIERS THAT RECEIVED
WAIVERS.

Petitioners argue that the Commission erred in denying them waivers
because the agency had granted waivers to three other groups of allegedly
similarly situated carriers: (1) the Tier III carriers that were not compliant
with the inductive coupling-compatibility requirements by the September 18,
22

2006 deadline but had achieved full compliance by January 1, 2007; (2) the
Tier III carriers operating as “i wireless”; and (3) the Tier III carriers that had
been granted waivers of the acoustic coupling requirements in the 2007 GSM
Waiver Order.
As shown below, the circumstances that justified waivers for those sets
of carriers were starkly different from those presented by petitioners’ waiver
applications. Because petitioners’ circumstances are not similar to carriers
that were granted waivers, “the Commission acted reasonably in treating
them differently.” Mobile Relay Assocs. v. FCC, 457 F.3d 1, 10 n.11 (D.C.
Cir. 2006).9

A. Petitioners Were Not Similarly Situated With The

Group Of Carriers Achieving Full Compliance By
January 1, 2007.

The Commission reasonably granted waivers to a group of 22 Tier III
carriers that had achieved full compliance by January 1, 2007 because this
group of carriers, notwithstanding their failure to meet the September 18,

9 Petitioners fault the Commission for denying their waiver requests while
granting a waiver to Kyocera, an equipment manufacturer. Petitioners’ Brief
at 32. Petitioners, however, do not even attempt to show that their
circumstances are similar to those of Kyocera – and with good reason. In
contrast to petitioners’ lengthy period of non-compliance, Kyocera missed the
September 18, 2006 deadline by only three days, in part attributable to “the
delays that Kyocera encountered during the testing process.” Order, 23 FCC
Rcd at 3383 (¶ 75) (J.A. 32).
23

2006 deadline, had made diligent efforts to satisfy the FCC’s inductive
coupling handset deployment requirement. Order, 23 FCC Rcd at 3361-62
(¶¶ 15-17) (J.A. 10-11).
As the Commission pointed out, several circumstances prevented this
group of Tier III carriers from complying with that requirement by the
September 18, 2006 deadline. Very few handset models had been certified as
compliant with the hearing aid compatibility standards for inductive coupling
until shortly before the Commission’s deadline, leaving carriers with very
little time in which to procure and to make inductive coupling-compliant
equipment available to consumers in their retail stores. Order, 23 FCC Rcd.
at 3362 (¶ 16) (J.A. 11). Moreover, even after compliant equipment became
available for purchase, Tier III carriers experienced significant delays in
securing shipping commitments because the equipment manufacturers chose
first to fill the orders of larger carriers. Id. Taking into account these factors,
the Commission reasonably concluded that “the time frames within which
these carriers came into compliance” – “on or shortly before January 1, 2007”
– were “reasonable under the circumstances and reflect[ed] the diligence of
their efforts.” Id. at 3362 (¶ 17) (J.A. 11).
Petitioners argue that the compliance difficulties identified in the
Order were “industry-wide,” and therefore not only justified waivers for
24

those Tier III carriers achieving compliance by January 1, 2007, but also
required the Commission to grant waivers to other Tier III carriers, including
petitioners themselves, that had been non-compliant for longer periods of
time. Petitioners’ Brief at 29. Petitioners are mistaken. The Commission
reasonably determined that compliance difficulties justified only “a modest
amount of additional time,” i.e., up to January 1, 2007, for Tier III carriers to
procure and make available inductive coupling-compliance equipment.
Order, 23 FCC Rcd at 3361 (¶ 15) (J.A. 10). Petitioners point to nothing in
the record showing that widespread impediments to full compliance
continued after January 1, 2007 – a period during which many models of
inductive coupling-compliant equipment had been certified for substantial
time periods and compliant equipment generally had become widely
available. To the contrary, the large number of Tier III carriers that were
able to achieve full compliance by January 1, 2007 indicated that by that date
widespread impediments no longer existed.
Moreover, the Commission granted waivers to the group of 21 Tier III
carriers achieving full compliance by January 1, 2007 because those carriers
had exercised due diligence in procuring and offering inductive coupling
compliant-equipment. Id. at 3361-62 (¶¶ 15-16) (J.A. 10-11). Unlike those
carriers, Blanca, CTC, and Farmers failed to exercise due diligence in
25

purchasing and offering inductive coupling compatible equipment. As the
Commission explained, even after January 1, 2007, petitioners sought to
purchase compliant equipment only from their existing suppliers instead of
seeking out all possible sources of compliant equipment. Id. at 3365 (¶ 22)
(J.A. 14); Reconsideration Order , 27 FCC Rcd at 9824 (¶ 22) (J.A. 65).
Because petitioners are not similarly situated with the group of Tier III
carriers achieving full compliance by January 1, 2007 either by the length of
their non-compliance with the inductive coupling requirement or by the
diligence of their efforts to obtain compliant equipment, it was not unlawful
for the Commission to treat them differently. See Mobile Relay Assocs., 457
F.3d at 10 n.11. The Commission’s identification of January 1, 2007 as a
relevant date for the exercise of its broad discretion to deny waivers is
essentially a matter of line-drawing, as to which the Commission’s discretion
is equally broad. See Nuvio Corp. v. FCC, 473 F.3d 302, 309 (D.C. Cir.
2006) (quoting AT&T Corp. v. FCC, 220 F.3d 607, 627 (D.C. Cir. 2000))
(“[T]he Commission [has] ‘wide discretion to determine where to draw
administrative lines.’”)
Petitioners also argue that the Commission improperly applied a
different standard of review to the waiver petitions of the group of Tier III
carriers that achieved full compliance by January 1, 2007 than it applied to
26

their petitions. According to petitioners, the Commission granted the waiver
petitions of the former group based “upon a showing of ‘sufficient
diligence,’” whereas it required a more demanding “‘compelling’ justification
from Petitioners.” Petitioners’ Brief at 13, 40, 42.
Petitioners are incorrect. The Commission applied the standard of
review set forth in section 1.925(b)(3) of its rules to all the Tier III carriers
seeking waivers of the inductive coupling-compatible handset deployment
requirements. 47 C.F.R. § 1.925(b)(3). See Order, 23 FCC Rcd at 3356-57
(¶ 7) (J.A. 5-6); Reconsideration Order, 27 FCC Rcd at 9816, 9822 (¶¶ 4, 19)
(J.A. 57, 63). In applying that standard, the Commission used the same
phrase – “sufficient diligence” – both in granting waivers to the group of Tier
III carriers that achieved full compliance by January 1, 2007 and in denying
waivers to petitioners here. Order, 23 FCC Rcd at 3361, 3365 (¶¶ 15, 22)
(J.A. 10, 14). The Commission thus did not require petitioners to satisfy a
higher burden, but simply to demonstrate, like other Tier III waiver
27

applicants, that they had been diligent in their efforts to comply with the
inductive coupling rule.10

B. Petitioners Were Not Similarly Situated With i Wireless.

Petitioners next argue that the Commission “treated similarly situated
carriers differently” because it granted waivers to i wireless while denying
waivers to petitioners. Petitioners’ Brief at 12. That argument is baseless.
The Commission granted i wireless a waiver because it had “provide[d]
sufficient information to show that its efforts to obtain compliant handsets . . .
were . . . reasonably diligent.” Reconsideration Order, 27 FCC Rcd at 9819
(¶ 12) (J.A. 60). For example, i wireless’ Inventory Manager showed that he
“regularly contacted manufacturers and distributors, and asked them for
information regarding the availability of compliant handsets, a process that
included identifying the authorized distributors for particular manufacturers,
obtaining information regarding handset availability from these distributors,

10 Petitioners focus on a separate portion of the Order in which the
Commission denied the waiver petitions of Rural Cellular Corporation and
Virgin Mobile USA, noting that those parties had failed to submit
“compelling” reasons for why they failed to offer a second compliant handset
by the deadline applicable to their operations. Order, 23 FCC Rcd at 3381,
3382 (¶¶ 69, 72) (J.A. 30, 31). Contrary to petitioners’ contention, the
Commission did not establish any different (“compelling”) standard for
resolving those waiver applications; the need for a “compelling” showing is
simply an application of the “rigorous” standard, see Order, 23 FCC Rcd at
3361 (¶ 15) (J.A. 10), that the Commission’s waiver rule demands. See 47
C.F.R. § 1.925(b)(3).
28

and obtaining and testing handsets for network compatibility.” Id. In
addition, i wireless documented with detailed timelines its efforts to procure
fourteen different handset models. Id. See i wireless Reconsideration
Petition (J.A. 220).
Furthermore, unlike petitioners, i wireless had shown that its efforts to
achieve full compliance were hampered by erroneous information provided
by an equipment supplier. Reconsideration Order, 27 FCC Rcd at 9819
(¶ 13). (J.A. 60). For example, i wireless purchased a handset model based
upon the suppliers’ representation that the model was compliant with the
Commission’s inductive coupling compatibility standards. When i wireless
discovered that the handset in fact was not compliant, it purchased an
alternative model. However, the supplier failed to provide i wireless with the
alternative model by the promised date. Id. at 9820 (¶ 13) (J.A 61).
Finally, i wireless’ efforts to achieve full compliance were hampered
further because its network used “GSM technology[] for which hearing aid-
compatible handset availability was significantly more limited” than for
29

digital wireless carriers – like CTC and Blanca – using the alternative CDMA
technology. Id. at 9822 n.59 (J.A. 63); see id. at 9820 (¶ 17) (J.A. 61).11
The diligent efforts of i wireless to obtain inductive coupling-compliant
equipment stand in stark contrast with the efforts of petitioners: as the
Commission explained, Blanca, CTC, and Farmers simply contacted their
existing vendors without “investigat[ing] alternative suppliers as they should
have done in the exercise of reasonable diligence when their existing vendors
could not satisfy their requirements.” Reconsideration Order, 27 FCC Rcd at
9824 (¶ 22) (J.A. 65). The Commission reasonably concluded that, even
though i wireless did not become fully compliant until March 22, 2007, it had
satisfied its burden to demonstrate diligent efforts to procure and to offer
inductive coupling-compliant equipment.12

11 As the Commission observed, the only one of the petitioners that
employed GSM technology was Farmers, which did not achieve compliance
until June 6, 2007, “more than two months after i wireless and its related
licensees.” Id. at 9822 n.59 (J.A. 63) (emphasis added).
12 Petitioners fault the Commission for granting what they characterize as a
“tagalong[] coattail waiver” to South Slope Wireless. Petitioners’ Brief at 32.
The record shows, however, that South Slope Wireless participated in i
wireless’ bulk discount equipment program and operated its systems as an
integrated part of the i wireless network. South Slope Wireless
Reconsideration Petition (Mar. 27, 2008) at 14-15 (¶¶ 21-22) (J.A. 277-78).
The Commission thus acted reasonably in granting South Slope Wireless a
waiver on the ground that “its circumstances are indistinguishable from those
of i wireless and its other associated carriers.” See Reconsideration Order,
27 FCC Rcd at 9820 (¶ 16) (J.A. 61).
30

C. Petitioners Were Not Similarly Situated With The

Carriers Granted Waivers In The 2007 GSM
Waiver Order

.
Petitioners’ final disparate-treatment argument focuses on the
Commission’s 2007 grant of waivers to carriers that had failed to timely
comply with the separate acoustic coupling-compatible handset deployment
requirement. See Petitioners Br. 33-39 (citing 2007 GSM Waiver Order, 22
FCC Rcd 20459). Because the recipients of those waivers were not similarly
situated to petitioners here, that argument likewise fails.
As the Commission explained in the Reconsideration Order, the
waivers in the 2007 GSM Waiver Order were based upon “unique and
unusual circumstances” not present in this case. Reconsideration Order, 27
FCC Rcd at 9823 (¶ 21) (quoting 2007 GSM Waiver Order, 22 FCC Rcd at
20472 (¶ 30)) (J.A. 64). The carriers that obtained waivers in the 2007 GSM
Waiver Order had purchased handsets that their vendors had represented were
compliant with the Commission’s standards for acoustic coupling. Because
those carriers had “no ready means” to identify compliant handsets from the
Commission’s records, they had “no practical alternative” but to rely on the
vendors and manufacturers for information concerning the compatibility of
specific handset models. 2007 GSM Waiver Order, 22 FCC Rcd 20472
(¶ 30). Accordingly, the Commission determined that they hadacted
31

diligently and reasonably, although erroneously, based on the information
available to them.” Id. at 20473(¶ 30).
In contrast, Blanca, CTC, and Farmers do not contend that they
purchased equipment in the reasonable belief that it was compliant. CTC and
Farmers did not timely obtain equipment at all, and Blanca’s belief that it had
obtained compliant equipment was, by its own admission, a mistake for
which it was solely responsible. Blanca Supplemental Report at 3 (J.A. 216).
Blanca, CTC, and Farmers claim that they are similarly situated with
the carriers granted waivers in the 2007 GSM Waiver Order not because they
timely obtained compliant equipment, but because they relied upon their
vendors’ representations that compliant equipment was unavailable. But, as
the Commission emphasized, petitioners were thereby placed “on notice of
their non-compliance.” Reconsideration Order, 27 FCC Rcd at 9823 (¶ 21)
(J.A. 64) (emphasis added). In contrast, the recipients of waivers in the 2007
GSM Waiver Order “reasonably concluded, . . . based on information from
[their] vendors, that they had already achieved compliance.” Id. at 9823
(¶ 20) (J.A. 64) (emphasis added). In short, a carrier’s reasonable reliance on
a vendor’s representation that a particular handset is compliant (as in the 2007
GSM Waiver Order) is very different from its reliance “on a vendor that the
32

carrier knows cannot provide compliant handsets.” Id. at 9823 (¶¶ 20-21)
(J.A. 64).
Blanca, CTC, and Farmers contend that “if Petitioners’ vendors were
correct and no HAC compliant handsets were available,” then it would have
been “futile” to seek compliant equipment from other sources. Petitioners’
Brief at 35. Because petitioners failed to raise that contention before the
Commission, section 405(a) of the Communications Act bars petitioners from
raising it on review. 47 U.S.C. § 405(a). See Ad Hoc Telecomm. Users
Comm. v. FCC, 572 F.3d 903, 912 (D.C. Cir. 2009) (“Under 47 U.S.C.
§ 405(a), the FCC's “opportunity to pass” on an issue is a ‘condition
precedent to judicial review.’”)
In any event, petitioners’ newly proffered argument is undercut by the
many Tier III carriers that were able to obtain compliant equipment when
petitioners’ vendors said it was unavailable and petitioners point to nothing in
the record to support their view. To the contrary, in the proceedings below
each of the petitioners pointed only to an inability to obtain compliant
equipment “from its handset distributors.” Blanca Waiver Petition at 2 (J.A.
147) (emphasis added); accord CTC Waiver Petition at 2 (J.A. 150); Farmers
Waiver Petition at 2 (J.A. 153). See also Blanca, CTC & Farmers
Reconsideration Petition at 2 (claiming inability “to obtain HAC compliant
33

handsets from their vendors”) (J.A. 285). At no point did petitioners attempt
to demonstrate that it would have been futile to obtain compliant equipment
from other sources – indeed, they acknowledge that other vendors might have
had “different or better information.” Petitioners Brief at 35. They should
have asked.

III. THE COMMISSION USED LAWFUL

PROCEDURES IN ADJUDICATING PETITIONERS’
WAIVER PETITIONS.

A. The Commission’s Waiver Decisions Did Not

Require Notice-And-Comment Rulemaking
Procedures.

Petitioners argue that, in adjudicating their waiver petitions, the
Commission established a January 1, 2007 compliance deadline on a
retroactive basis without following the notice-and-comment rulemaking
procedures required by the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 553(b), (c). See Petitioners’ Brief at 20. Petitioners’ contention confuses
the Commission’s explanation of its adjudication of requests for waivers of
an existing rule with the agency’s adoption of a new regulation. It is well
established that the APA does not require the Commission to use notice-and-
comment rulemaking procedures when engaging in informal adjudications
such as the waiver proceedings on review. See Occidental Petroleum Corp.
v. SEC, 873 F.2d 325, 337 (D.C. Cir. 1989); see also FCC v. Fox Television
34

Stations., Inc., 556 U.S. 502, 529 n.8 (2009); United States Telecom Ass’n v.
FCC, 400 F.3d 29, 34 n.9 (D.C. Cir. 2005). 13
The only compliance deadline in this case, which was established after
formal notice-and-comment rulemaking procedures, is embodied in section
20.19(d)(2). That rule required digital service providers to offer equipment
that satisfied the Commission’s inductive coupling–compatibility standards
by September 18, 2006. 47 C.F.R. § 20.19(d)(2). Contrary to petitioners’
contention (Petitioners’ Brief at 12, 20-21), January 1, 2007 was not “an
alternate deadline.” Reconsideration Order, 27 FCC Rcd at 9822 (¶ 19) (J.A.
63). It was instead part of the framework by which the Commission
explained the basis for its grant (or denial) of petitions for waiver of the
September 18, 2006 deadline, which at all times remained in force and of
which petitioners had ample notice and on which they had a full and fair
opportunity to comment. As we have shown, a waiver adjudication is not a
rulemaking proceeding requiring notice and comment.14 See p. 31, supra.

13 The APA imposes certain procedural requirements on formal trial-type
adjudications generally “required by statute to be determined on the record.”
5 U.S.C. § 554(a). See 5 U.S.C. §§ 554(b)(3), 554(c)(1), 557(c)(1), (2). The
waiver proceedings below, however, were not formal adjudications. See
Occidental Petroleum Corp
, 873 F.2d 325.
14 As the Commission emphasized, “compliance by January 1, 2007, although
indicative of reasonably diligent efforts, was not conclusive.”
Reconsideration Order, 27 FCC Rcd at 9822 n.58 (J.A. 63). SLO Cellular,
35

Nor does an agency convert an adjudication into a rulemaking simply because
it summarizes its reasoning – or employs a date in explaining a presumption –
in the course of disposing of a number of cases. See Nat’l Ass’n of
Broadcasters v. FCC, 569 F.3d 416, 425 (D.C. Cir. 2009).

B. The Commission Did Not Violate The Paperwork

Reduction Act.

Petitioners take issue with the Commission’s statement in the
Reconsideration Order that “CTC did not provide a sworn declaration
establishing the authenticity of” a late-filed invoice purporting to show that
the carrier had purchased an inductive coupling-compliant handset on January
25, 2007, see Reconsideration Order, 27 FCC Rcd at 9824 (¶ 22) (J.A. 65),
and suggest that the requirement to provide such a declaration would be a
violation of the PRA, 44 U.S.C. §§ 3501 et seq. See Petitioners Brief at 43-
45.
The PRA, which governs the “collection of information” by federal
agencies, see 44 U.S.C. § 3507(a), has no application to CTC’s claim. CTC
voluntarily submitted the January 25, 2007 invoice to support its contention

for example, was denied a waiver even though it had achieved compliance by
December 1, 2006. Id. See also Order, 23 FCC Rcd at 3368 (¶¶ 32, 34) (J.A.
17). Conversely, a number of carriers, including i wireless and its related
entities, were granted waivers even though they achieved compliance after
January 1, 2007. See Reconsideration Order, 27 FCC Rcd at 9819-20 (¶¶ 12-
13) (J.A. 60-61).
36

that its efforts at compliance were diligent. The Commission’s observation
that the carrier did not submit a sworn declaration supporting the authenticity
of the invoice goes only to the Commission’s evaluation of the probative
value of the evidence before it, a matter with which the PRA has no concern.
See Benkelman Tel. Co. v. FCC, 220 F.3d 601, 607 (D.C. Cir. 2000) (PRA
applies only to requirements to report information to agencies, and not to
agency algorithm evaluating information that has been provided to it).
In any event, the Commission made clear that whether or not it had
been authenticated by a sworn declaration, CTC’s January 25, 2007 invoice
showed only that the carrier did not request a compliant device “until the end
of January,” and thus, the invoice “would not support a finding of reasonably
diligent efforts.” Reconsideration Order, 27 FCC Rcd at 9824 (¶ 22) (J.A.
65). The Commission thus did not deny CTC’s petition for a waiver because
the carrier failed to authenticate the January 25, 2007 invoice.

IV.

THE EX PARTE

SUBMISSION DID NOT TAINT
THE ADMINISTRATIVE PROCESS.

Lastly, petitioners contend (Brief at 45-47) that their waiver denials
were infirm because the Commission received, in violation of the agency’s ex
parte rules, a Consolidated Opposition from two organizations representing
people with hearing loss stating that “[a]ny waiver granted should be only for
37

a limited time, and in no case later than January 1, 2007.” Consolidated
Opposition (Nov. 6, 2006) at 13 (J.A. 172).15
A court will not reverse an agency’s decision “unless ‘the agency’s
decisionmaking process was irrevocably tainted so as to make the ultimate
judgment of the agency unfair.’” Lichoulas v. FERC, 606 F.3d 769, 778
(D.C. Cir. 2010) (quoting Press Broad. Co. v. FCC, 59 F.3d 1365, 1369
(D.C. Cir. 1995)). The factors in determining whether the agency’s processes
were “irrevocably tainted” include “‘the gravity of the ex parte
communications; whether the contacts may have influenced the agency’s
ultimate decision; whether the party making the improper contacts benefited
from the agency’s ultimate decision; whether the contents of the
communications were unknown to opposing parties, who therefore had no
opportunity to respond; and whether vacation of the agency’s decision and

15 At the time the Consolidated Opposition was filed, the waiver proceeding
was a “restricted proceeding” in which ex parte presentations (i.e.,
presentations, if written, that are not served on all the parties to the
proceeding) were prohibited. 47 C.F.R. § 1.1208. On January 18, 2007,
however, the Commission’s staff by Public Notice announced that the
proceeding (among others) would thereafter be governed by the
Commission’s “permit but disclose” rule, 47 C.F.R. § 1.1206, under which ex
parte
filings are permitted if disclosed in the public docket. See Public
Notice, 22 FCC Rcd 535 (2007) (J.A. 180). A number of parties, including
Blanca, CTC, and Farmers, subsequently filed ex parte pleadings in the
administrative docket. See, e.g., Blanca, CTC & Farmers Ex Parte
Supplemental Reply Comments (July 28, 2008) (J.A. 327).
38

remand for new proceedings would serve a useful purpose.’” Freeman Eng’g
Assocs. v. FCC, 103 F.3d 169, 184 (D.C. Cir. 1997) (quoting Prof. Air Traffic
Controllers Org. v. FLRA, 685 F.2d 547, 565(D.C. Cir. 1982)).

The record shows that the administrative process was not “irrevocably
tainted,” Lichoulas, 606 F.3d at 778, by the filing of the Consolidated
Opposition in this case. Only a single ex parte rule violation occurred, and
that violation was “inadvertent.” Reconsideration Order, 27 FCC Rcd at
9826 n.83 (J.A. 67). Moreover, the Consolidated Opposition, although not
served on the parties to the proceeding, was “post[ed] . . . to the correct
docket, thereby making it available electronically to the petitioners.” Id.
Indeed, petitioners “had ample opportunity to discuss and address the
Consolidated Opposition in several of their filings.” Id. at 9825-26 (¶ 26)
(J.A. 66-67). Finally, given the lack of a showing of diligence on petitioners’
part, the Commission found that it “would have reached the same result with
or without consideration of the Consolidated Opposition.” Id. To be sure,
the Commission’s determination that a carrier was more likely to have
exercised reasonable diligence if it came into compliance by January 1, 2007
“was ‘consistent’ with” the views expressed in the Consolidated Opposition,
39

but, as the Commission made clear, it did not “rel[y] on” that opposition to
reach its own independent conclusion. Id. 16
The “harmless error rule” in the APA “requires the party asserting
error to demonstrate prejudice from the error.” Air Canada v. DOT, 148 F.3d
1142, 1156 (D.C. Cir. 1998). See 5 U.S.C. § 706. The ex parte violation
relied upon by petitioners did not affect the outcome and thus “was plainly
harmless.” United States Telecom Ass’n, 400 F.3d at 41.

16 Petitioners fault the Commission for “ignor[ing]” that the Consolidated
Opposition was untimely filed. Petitioners’ Brief at 47. But once the
Commission determined that the Consolidated Opposition had been filed in
violation of the ex parte rules, Reconsideration Order, 27 FCC Rcd at 9825
(¶ 25) (J.A. 66), it had no need to consider whether to disregard the pleading
on the additional ground that it had been untimely filed.

40

CONCLUSION

The petition for review should be denied.

Respectfully submitted,
WILLIAM J. BAER
SEAN A. LEV
ASSISTANT ATTORNEY GENERAL
GENERAL COUNSEL


ROBERT B. NICHOLSON
PETER KARANJIA
JAMES J. FREDRICKS
DEPUTY GENERAL COUNSEL
ATTORNEYS


JACOB M. LEWIS
UNITED STATES
ASSOCIATE GENERAL COUNSEL
DEPARTMENT OF JUSTICE

WASHINGTON, D.C. 20530
/s/ Laurel R. Bergold


LAUREL R. Bergold
COUNSEL

FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
41

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


BLANCA TELEPHONE COMPANY, ET AL.,
PETITIONERS,
v.
NO. 12-1365
FEDERAL COMMUNICATIONS COMMISSION AND

UNITED STATES OF AMERICA,
RESPONDENTS.



CERTIFICATE OF COMPLIANCE

Pursuant to the requirements of Fed. R. App. P. 32(a)(7), I hereby
certify that the accompanying Brief for Respondents in the captioned case
contains 8,502 words.

/s/ Laurel R. Bergold
Laurel R. Bergold

Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1740 (Telephone)
(202) 418-2819 (Fax)




















STATUTORY APPENDIX






5 U.S.C. § 553
5 U.S.C. § 705

44 U.S.C. § 3507(a)

47 U.S.C. § 405
47 U.S.C. § 610

47 C.F.R. § 1.925
47 C.F.R. § 20.19(c) & (d) [prior to June 6, 2008]




5 U.S.C. § 553




UNITED STATES CODE ANNOTATED
TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 5. ADMINISTRATIVE PROCEDURE
SUBCHAPTER II. ADMINISTRATIVE PROCEDURE


§ 553. Rule making

(a) This section applies, according to the provisions thereof, except to the
extent that there is involved--

(1) a military or foreign affairs function of the United States; or

(2) a matter relating to agency management or personnel or to public
property, loans, grants, benefits, or contracts.

(b) General notice of proposed rule making shall be published in the Federal
Register, unless persons subject thereto are named and either personally
served or otherwise have actual notice thereof in accordance with law. The
notice shall include--

(1) a statement of the time, place, and nature of public rule making
proceedings;

(2) reference to the legal authority under which the rule is proposed; and

(3) either the terms or substance of the proposed rule or a description of the
subjects and issues involved.

Except when notice or hearing is required by statute, this subsection does not
apply--


(A) to interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice; or

(B) when the agency for good cause finds (and incorporates the finding and
a brief statement of reasons therefor in the rules issued) that notice and
public procedure thereon are impracticable, unnecessary, or contrary to the
public interest.

(c) After notice required by this section, the agency shall give interested
persons an opportunity to participate in the rule making through submission
of written data, views, or arguments with or without opportunity for oral
presentation. After consideration of the relevant matter presented, the agency
shall incorporate in the rules adopted a concise general statement of their
basis and purpose. When rules are required by statute to be made on the
record after opportunity for an agency hearing, sections 556 and 557 of this
title apply instead of this subsection.

(d) The required publication or service of a substantive rule shall be made
not less than 30 days before its effective date, except--

(1) a substantive rule which grants or recognizes an exemption or relieves a
restriction;

(2) interpretative rules and statements of policy; or

(3) as otherwise provided by the agency for good cause found and
published with the rule.

(e) Each agency shall give an interested person the right to petition for the
issuance, amendment, or repeal of a rule.





5 U.S.C. § 706




UNITED STATES CODE ANNOTATED
TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES
PART I. THE AGENCIES GENERALLY
CHAPTER 7. JUDICIAL REVIEW


§ 706. Scope of review

To the extent necessary to decision and when presented, the reviewing court
shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms
of an agency action. The reviewing court shall--

(1) compel agency action unlawfully withheld or unreasonably delayed;
and

(2) hold unlawful and set aside agency action, findings, and conclusions
found to be--

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law;

(B) contrary to constitutional right, power, privilege, or immunity;

(C) in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right;

(D) without observance of procedure required by law;

(E) unsupported by substantial evidence in a case subject to sections 556
and 557 of this title or otherwise reviewed on the record of an agency
hearing provided by statute; or

(F) unwarranted by the facts to the extent that the facts are subject to trial
de novo by the reviewing court.


In making the foregoing determinations, the court shall review the whole
record or those parts of it cited by a party, and due account shall be taken of
the rule of prejudicial error.




44 U.S.C. § 3507(a)





UNITED STATES CODE ANNOTATED
TITLE 44. PUBLIC PRINTING AND DOCUMENTS
CHAPTER 35. COORDINATION OF FEDERAL INFORMATION
POLICY
SUBCHAPTER I. FEDERAL INFORMATION POLICY

§ 3507. Public information collection activities; submission to Director;
approval and delegation


(a) An agency shall not conduct or sponsor the collection of information
unless in advance of the adoption or revision of the collection of
information--

(1) the agency has--

(A) conducted the review established under section 3506(c)(1);

(B) evaluated the public comments received under section 3506(c)(2);

(C) submitted to the Director the certification required under section
3506(c)(3), the proposed collection of information, copies of pertinent
statutory authority, regulations, and other related materials as the
Director may specify; and

(D) published a notice in the Federal Register--

(i) stating that the agency has made such submission; and

(ii) setting forth--

(I) a title for the collection of information;

(II) a summary of the collection of information;


(III) a brief description of the need for the information and the
proposed use of the information;

(IV) a description of the likely respondents and proposed frequency of
response to the collection of information;

(V) an estimate of the burden that shall result from the collection of
information; and

(VI) notice that comments may be submitted to the agency and
Director;

(2) the Director has approved the proposed collection of information or
approval has been inferred, under the provisions of this section; and

(3) the agency has obtained from the Director a control number to be
displayed upon the collection of information.

* * * * * *




47 U.S.C. § 405




UNITED STATES CODE ANNOTATED
TITLE 47. TELEGRAPHS, TELEPHONES, AND RADIOTELEGRAPHS
CHAPTER 5. WIRE OR RADIO COMMUNICATION
SUBCHAPTER IV. PROCEDURAL AND ADMINISTRATIVE
PROVISIONS


§ 405. Petition for reconsideration; procedure; disposition; time of
filing; additional evidence; time for disposition of petition for
reconsideration of order concluding hearing or investigation; appeal of
order


(a) After an order, decision, report, or action has been made or taken in any
proceeding by the Commission, or by any designated authority within the
Commission pursuant to a delegation under section 155(c)(1) of this title,
any party thereto, or any other person aggrieved or whose interests are
adversely affected thereby, may petition for reconsideration only to the
authority making or taking the order, decision, report, or action; and it shall
be lawful for such authority, whether it be the Commission or other authority
designated under section 155(c)(1) of this title, in its discretion, to grant such
a reconsideration if sufficient reason therefor be made to appear. A petition
for reconsideration must be filed within thirty days from the date upon
which public notice is given of the order, decision, report, or action
complained of. No such application shall excuse any person from complying
with or obeying any order, decision, report, or action of the Commission, or
operate in any manner to stay or postpone the enforcement thereof, without
the special order of the Commission. The filing of a petition for
reconsideration shall not be a condition precedent to judicial review of any
such order, decision, report, or action, except where the party seeking such
review (1) was not a party to the proceedings resulting in such order,
decision, report, or action, or (2) relies on questions of fact or law upon
which the Commission, or designated authority within the Commission, has
been afforded no opportunity to pass. The Commission, or designated
authority within the Commission, shall enter an order, with a concise
statement of the reasons therefor, denying a petition for reconsideration or

granting such petition, in whole or in part, and ordering such further
proceedings as may be appropriate: Provided, That in any case where such
petition relates to an instrument of authorization granted without a hearing,
the Commission, or designated authority within the Commission, shall take
such action within ninety days of the filing of such petition.
Reconsiderations shall be governed by such general rules as the Commission
may establish, except that no evidence other than newly discovered
evidence, evidence which has become available only since the original
taking of evidence, or evidence which the Commission or designated
authority within the Commission believes should have been taken in the
original proceeding shall be taken on any reconsideration. The time within
which a petition for review must be filed in a proceeding to which section
402(a) of this title applies, or within which an appeal must be taken under
section 402(b) of this title in any case, shall be computed from the date upon
which the Commission gives public notice of the order, decision, report, or
action complained of.

(b)(1) Within 90 days after receiving a petition for reconsideration of an
order concluding a hearing under section 204(a) of this title or concluding an
investigation under section 208(b) of this title, the Commission shall issue
an order granting or denying such petition.

(2) Any order issued under paragraph (1) shall be a final order and may be
appealed under section 402(a) of this title.





47 U.S.C. § 610





UNITED STATES CODE ANNOTATED
TITLE 47. TELEGRAPHS, TELEPHONES, AND
RADIOTELEGRAPHS
CHAPTER 5. WIRE OR RADIO COMMUNICATION
SUBCHAPTER VI. MISCELLANEOUS PROVISIONS

§ 610. Telephone service for disabled

(a) Establishment of regulations

The Commission shall establish such regulations as are necessary to ensure
reasonable access to telephone service by persons with impaired hearing.

(b)(1) Except as provided in paragraphs (2) and (3) and subsection (c), the
Commission shall require that customer premises equipment described in
this paragraph provide internal means for effective use with hearing aids that
are designed to be compatible with telephones which meet established
technical standards for hearing aid compatibility. Customer premises
equipment described in this paragraph are the following:

(A) All essential telephones.

(B) All telephones manufactured in the United States (other than for
export) more than one year after August 16, 1988 or imported for use in
the United States more than one year after such date.

(C) All customer premises equipment used with advanced communications
services that is designed to provide 2-way voice communication via a
built-in speaker intended to be held to the ear in a manner functionally
equivalent to a telephone, subject to the regulations prescribed by the
Commission under subsection (e).

(2)(A) The regulations prescribed by the Commission under paragraph (1),
shall exempt from the requirements established pursuant to subparagraphs

(B) and (C) of paragraph (1) only--

(i) telephones used with public mobile services;

(ii) telephones used with private radio services; and

(iii) secure telephones.

(iv) Redesignated (iii)

(B) The Commission shall periodically assess the appropriateness of
continuing in effect the exemptions for telephones and other customer
premises equipment described in subparagraph (A) of this paragraph. The
Commission shall revoke or otherwise limit any such exemption if the
Commission determines that--

(i) such revocation or limitation is in the public interest;

(ii) continuation of the exemption without such revocation or limitation
would have an adverse effect on hearing-impaired individuals;

(iii) compliance with the requirements of subparagraph (B) or (C) of
paragraph (1) is technologically feasible for the telephones to which the
exemption applies; and

(iv) compliance with the requirements of subparagraph (B) or (C) of
paragraph (1) would not increase costs to such an extent that the telephones
to which the exemption applies could not be successfully marketed.

(C) Redesignated (B)

(3) The Commission may, upon the application of any interested person,
initiate a proceeding to waive the requirements of paragraph (1)(B) of this
subsection with respect to new telephones, or telephones associated with a
new technology or service. The Commission shall not grant such a waiver
unless the Commission determines, on the basis of evidence in the record of
such proceeding, that such telephones, or such technology or service, are in
the public interest, and that (A) compliance with the requirements of
paragraph (1)(B) is technologically infeasible, or (B) compliance with such
requirements would increase the costs of the telephones, or of the

technology or service, to such an extent that such telephones, technology, or
service could not be successfully marketed. In any proceeding under this
paragraph to grant a waiver from the requirements of paragraph (1)(B), the
Commission shall consider the effect on hearing-impaired individuals of
granting the waiver. The Commission shall periodically review and
determine the continuing need for any waiver granted pursuant to this
paragraph.

(4) For purposes of this subsection--

(A) the term “essential telephones” means only coin-operated telephones,
telephones provided for emergency use, and other telephones frequently
needed for use by persons using such hearing aids;

(B) the term “telephones used with public mobile services” means
telephones and other customer premises equipment used in whole or in part
with air-to-ground radiotelephone services, cellular radio
telecommunications services, offshore radio, rural radio service, public
land mobile telephone service, or other common carrier radio
communication services covered by title 47 of the Code of Federal
Regulations, or any functionally equivalent unlicensed wireless services;

(C) the term “telephones used with private radio services” means
telephones and other customer premises equipment used in whole or in part
with private land mobile radio services and other communications services
characterized by the Commission in its rules as private radio services; and

(D) the term “secure telephones” means telephones that are approved by
the United States Government for the transmission of classified or
sensitive voice communications.

(c) Technical standards

The Commission shall establish or approve such technical standards as are
required to enforce this section. A telephone or other customer premises
equipment that is compliant with relevant technical standards developed
through a public participation process and in consultation with interested
consumer stakeholders (designated by the Commission for the purposes of
this section) will be considered hearing aid compatible for purposes of this
section, until such time as the Commission may determine otherwise. The

Commission shall consult with the public, including people with hearing
loss, in establishing or approving such technical standards. The Commission
may delegate this authority to an employee pursuant to section 155(c) of this
title. The Commission shall remain the final arbiter as to whether the
standards meet the requirements of this section.

(d) Labeling of packaging materials for equipment

The Commission shall establish such requirements for the labeling of
packaging materials for equipment as are needed to provide adequate
information to consumers on the compatibility between telephones and
hearing aids.

(e) Costs and benefits; encouragement of use of currently available
technology

In any rulemaking to implement the provisions of this section, the
Commission shall specifically consider the costs and benefits to all
telephone users, including persons with and without hearing loss. The
Commission shall ensure that regulations adopted to implement this section
encourage the use of currently available technology and do not discourage or
impair the development of improved technology. In implementing the
provisions of subsection (b)(1)(C), the Commission shall use appropriate
timetables or benchmarks to the extent necessary (1) due to technical
feasibility, or (2) to ensure the marketability or availability of new
technologies to users.

(f) Periodic review of regulations; retrofitting

The Commission shall periodically review the regulations established
pursuant to this section. Except for coin-operated telephones and telephones
provided for emergency use, the Commission may not require the retrofitting
of equipment to achieve the purposes of this section.

(g) Recovery of reasonable and prudent costs

Any common carrier or connecting carrier may provide specialized terminal
equipment needed by persons whose hearing, speech, vision, or mobility is
impaired. The State commission may allow the carrier to recover in its tariffs



for regulated service reasonable and prudent costs not charged directly to
users of such equipment.

(h) Rule of construction

Nothing in the Twenty-First Century Communications and Video
Accessibility Act of 2010 shall be construed to modify the Commission's
regulations set forth in section 20.19 of title 47 of the Code of Federal
Regulations, as in effect on October 8, 2010.







47 C.F.R. § 1.925





CODE OF FEDERAL REGULATIONS
TITLE 47. TELECOMMUNICATION
CHAPTER I. FEDERAL COMMUNICATIONS COMMISSION
SUBCHAPTER A. GENERAL
PART 1. PRACTICE AND PROCEDURE
SUBPART F. WIRELESS RADIO SERVICES APPLICATIONS
AND PROCEEDINGS
APPLICATION REQUIREMENTS AND PROCEDURES

§ 1.925 Waivers.

(a) Waiver requests generally. The Commission may waive specific
requirements of the rules on its own motion or upon request. The fees for
such waiver requests are set forth in § 1.1102 of this part.

(b) Procedure and format for filing waiver requests.
(1) Requests for waiver of rules associated with licenses or applications
in the Wireless Radio Services must be filed on FCC Form 601, 603, or
605.
(2) Requests for waiver must contain a complete explanation as to why
the waiver is desired. If the information necessary to support a waiver
request is already on file, the applicant may cross-reference the specific
filing where the information may be found.
(3) The Commission may grant a request for waiver if it is shown that:
(i) The underlying purpose of the rule(s) would not be served or would be
frustrated by application to the instant case, and that a grant of the
requested waiver would be in the public interest; or
(ii) In view of unique or unusual factual circumstances of the instant
case, application of the rule(s) would be inequitable, unduly burdensome

or contrary to the public interest, or the applicant has no reasonable
alternative.
(4) Applicants requiring expedited processing of their request for waiver
shall clearly caption their request for waiver with the words “WAIVER--
EXPEDITED ACTION REQUESTED.”

(c) Action on Waiver Requests.
(i) The Commission, in its discretion, may give public notice of the filing
of a waiver request and seek comment from the public or affected parties.
(ii) Denial of a rule waiver request associated with an application renders
that application defective unless it contains an alternative proposal that
fully complies with the rules, in which event, the application will be
processed using the alternative proposal as if the waiver had not been
requested. Applications rendered defective may be dismissed without
prejudice.





47 C.F.R. § 20.19(c) & (d)





CODE OF FEDERAL REGULATIONS
TITLE 47. TELECOMMUNICATION
CHAPTER I. FEDERAL COMMUNICATIONS COMMISSION
SUBCHAPTER B. COMMON CARRIER SERVICES
PART 20. COMMERCIAL MOBILE RADIO SERVICES
[CHANGED TO “COMMERCIAL MOBILE SERVICES”
EFFECTIVE JUNE 6, 2011]

Effective: May 16, 2007 to June 5, 2008



§ 20.19 Hearing aid-compatible mobile handsets.

<Text of section effective until June 6, 2008.>

* * * * *

(c) Phase-in for public mobile service handsets concerning radio frequency
interference.
(1) Each manufacturer of handsets used with public mobile services for
use in the United States or imported for use in the United States must:
(i) Offer to service providers at least two handset models for each air
interface offered that comply with § 20.19(b)(1) by September 16, 2005;
and
(ii) Ensure at least 50 percent of their handset offerings for each air
interface offered comply with § 20.19(b)(1) by February 18, 2008.
(2) And each provider of public mobile radio services must:
(i)(A) Include in its handset offerings at least two handset models per air
interface that comply with § 20.19(b)(1) by September 16, 2005, and
make available in each retail store owned or operated by the provider all
of these handset models for consumers to test in the store; or


(B) In the event a provider of public mobile radio services is using a
TDMA air interface and plans to overbuild (i.e., replace) its network
to employ alternative air interface(s), it must:

(1) Offer two handset models that comply with § 20.19(b)(1) by
September 16, 2005, to its customers that receive service from the
overbuilt (i.e., non–TDMA) portion of its network, and make
available in each retail store it owns or operates all of these handset
models for consumers to test in the store:

(2) Overbuild (i.e., replace) its entire network to employ alternative
air interface(s), and

(3) Complete the overbuild by September 18, 2006; and
(ii) Ensure that at least 50 percent of its handset models for each air
interface comply with § 20.19(b)(1) by February 18, 2008, calculated
based on the total number of unique digital wireless handset models the
carrier offers nationwide.
(3) Each Tier I carrier must:
(i)(A) Include in its handset offerings four digital wireless handset
models per air interface or twenty-five percent of the total number of
digital wireless handset models offered by the carrier nationwide
(calculated based on the total number of unique digital wireless handset
models the carrier offers nationwide) per air interface that comply with §
20.19(b)(1) by September 16, 2005, and make available in each retail
store owned or operated by the carrier all of these handset models for
consumers to test in the store; and

(B) Include in its handset offerings five digital wireless handset
models per air interface or twenty-five percent of the total number of
digital wireless handset models offered by the carrier nationwide
(calculated based on the total number of unique digital wireless
handset models the carrier offers nationwide) per air interface that
comply with § 20.19(b)(1) by September 16, 2006, and make
available in each retail store owned or operated by the carrier all of
these handset models for consumers to test in the store; and

(ii) Ensure that at least 50 percent of their handset models for each air
interface comply with § 20.19(b)(1) by February 18, 2008, calculated
based on the total number of unique digital wireless phone models the
carrier offers nationwide.

(d) Phase-in for public mobile service handsets concerning inductive
coupling.
(1) Each manufacturer of handsets used with public mobile services for
use in the United Sates or imported for use in the United States must
offer to service providers at least two handset models for each air
interface offered that comply with § 20.19(b)(2) by September 18, 2006.
(2) And each provider of public mobile service must include in their
handset offerings at least two handset models for each air interface that
comply with § 20.19(b)(2) by September 18, 2006 and make available in
each retail store owned or operated by the provider all of these handset
models for consumers to test in the store.




12-1365


IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Blanca Telephone Co., et al., Petitioners

v.

Federal Communications Commission and the
United States of America, Respondents

CERTIFICATE OF SERVICE


I, Laurel R. Bergold, hereby certify that on April 4, 2013, I electronically
filed the foregoing Final Brief for Respondents 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.


Timothy E. Welch
Robert B. Nicholson
Hill & Welch
James J. Fredricks
1025 Connecticut Ave., NW #1000
U.S. Department of Justice
Washington, D.C. 20036
Antitrust Division, Appellate Section
Counsel for: Blanca Telephone Co.,
Room 3224
et al.
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530-0001
Counsel for: USA



/s/ Laurel R. Bergold

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