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Federal ICC Brief, In Re: FCC 11-161, No. 11-9900 (10th Cir.)

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Released: March 6, 2013

Appellate Case: 11-9900 Document: 01019014097 Date Filed: 03/06/2013 Page: 1
FEDERAL RESPONDENTS’ UNCITED RESPONSE TO THE JOINT INTERCARRIER COMPENSATION
PRINCIPAL BRIEF OF PETITIONERS
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

NO. 11-9900

IN RE: FCC 11-161

ON PETITIONS 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
ROBERT J. WIGGERS
DEPUTY GENERAL COUNSEL
ATTORNEYS


RICHARD K. WELCH
UNITED STATES
DEPUTY ASSOCIATE GENERAL COUNSEL
DEPARTMENT OF JUSTICE

WASHINGTON, D.C. 20530
LAURENCE N. BOURNE

JAMES M. CARR
MAUREEN K. FLOOD
COUNSEL

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


Appellate Case: 11-9900 Document: 01019014097 Date Filed: 03/06/2013 Page: 2

TABLE OF CONTENTS


Table Of Authorities ........................................................................................ iii 
Glossary ........................................................................................................... ix 
Issue Presented .................................................................................................. 1 
Introduction And Summary Of Argument ........................................................ 1 
Argument ......................................................................................................... 10 
I. 
The FCC Reasonably Determined That Multiple Provisions
Of The Communications Act Authorize The Adoption Of A
Bill-And-Keep Ratemaking Methodology For The
Exchange Of Telecommunications With LECs. ...................................... 10 
A.  The FCC Reasonably Found That It Has Regulatory
Authority To Establish The Applicable Ratemaking
Regime For Telecommunications Exchanged With A
LEC. ..................................................................................................... 11 
1. 
Section 251(b)(5) Authorizes The FCC’s Intercarrier
Compensation Reforms. .................................................................. 12 
2. 
Sections 201(b) And 332 Provide The FCC
Independent Substantive Authority To Establish The
Order’s Regulatory Framework. ..................................................... 22 
a. 
Section 201(b) Provides The FCC Authority Over
Interstate Traffic Exchanged With A LEC. ................................ 23 
b. 
Section 332 Provides The FCC With Authority Over
All Wireless Traffic Exchanged With A LEC. ........................... 24 
3. 
The FCC’s Statutory Authority Provides Ample Basis
For The Order’s Narrow And Tailored Preemption Of
State Regulation. ............................................................................. 25 
B.  The FCC Reasonably Concluded That It Has Regulatory
Authority To Adopt Bill-And-Keep As The Default For
Telecommunications Exchanged With A LEC. .................................. 33 
i

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1. 
The Bill-And-Keep Methodology Is Consistent With
Section 252(d)(2) Ratemaking Standards. ...................................... 33 
2. 
Section 201(b) Independently Authorizes Bill-And-
Keep As A Ratemaking Methodology For Interstate
Traffic. ............................................................................................. 37 
3. 
The FCC’s Bill-And-Keep Framework Does Not
Impermissibly Intrude On State Authority To Establish
Actual Rates. ................................................................................... 41 
II.  The Recovery Mechanism Adopted In The Order Is A
Reasonable Interim Measure To Offset Reduced Intercarrier
Compensation Revenues During The Transition To Bill-
And-Keep. ................................................................................................ 45 
III.  Petitioners’ Challenge To The FCC’s Tentative Prediction
That States Likely Could Not Suspend Or Modify The
Order’s Bill-And-Keep Framework Is Unripe And, In Any
Event, Unsound. ....................................................................................... 55 
IV.  Petitioners’ Administrative Process And Constitutional
Claims Fail. .............................................................................................. 58 
A.  The Administrative Record Was Developed Consistent
With The APA, The FCC’s Ex Parte Rules, And Notions
Of Fundamental Fairness. ................................................................... 58 
B.  The Order Poses No Unconstitutional Burden On State
Sovereignty. ......................................................................................... 64 
Conclusion ....................................................................................................... 66 
ii

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TABLE OF AUTHORITIES

CASES

 
Air Transport Ass’n v. CAB, 732 F.2d 219 (D.C.
Cir. 1984) ..................................................................................................... 63
American Mining Congress v. Marshall, 671 F.2d
1251 (10th Cir. 1982) .................................................................................. 63
AT&T Co. v. FCC, 487 F.2d 865 (2d Cir. 1973) ............................................ 40
AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366
(1999) ................................................................. 6, 11, 24, 26, 27, 43, 49, 55
AT&T v. FCC, 572 F.2d 17 (2d Cir. 1978) ..................................................... 40
Bell Atl. Tel. Cos. v. FCC, 79 F.3d 1195 (D.C. Cir.
1996) ............................................................................................................ 38
Blumenthal v. FERC, 613 F.3d 1142 (D.C. Cir.
2010) ..................................................................................................... 61, 64
Chevron USA, Inc. v. Natural Res. Def. Council,
467 U.S. 837 (1984) ........................................... 7, 10, 16, 17, 21, 22, 37, 39
Core Commc’ns Inc. v. FCC, 592 F.3d 139 (D.C.
Cir. 2010) ........................................................................................ 17, 23, 24
EchoStar Satellite LLC v. FCC, 457 F.3d 31 (D.C.
Cir. 2006) .............................................................................................. 59, 61
Farina v. Nokia Inc., 625 F.3d 97 (3d Cir. 2010) ........................................... 28
FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944) ..................................... 38
Franklin Sav. Ass’n v. Dir., Office of Thrift
Supervision, 934 F.2d 1137 (10th Cir. 1991) .............................................. 54
Friends of Marolt Park v. United States Dep’t of
Transp., 382 F.3d 1088 (10th Cir. 2004) .................................................... 57
Geier v. Am. Honda Motor Co., 529 U.S. 861
(2000) .......................................................................................................... 28
Global Crossing Telecomms., Inc. v. Metrophones
Telecomms., Inc., 550 U.S. 45 (2007) ......................................................... 39
Hemenway v. Peabody Coal Co., 159 F.3d 255 (7th
Cir. 1998) ..................................................................................................... 23
iii

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Hillsdale Envt’l Loss Prevention, Inc. v. U.S. Army
Corps of Eng’rs, 702 F.3d 1156 (10th Cir. 2012) ....................................... 63
Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C.
Cir. 1977) ..................................................................................................... 61
In re Dawes, 652 F.3d 1236 (10th Cir. 2011) ................................................. 18
Iowa Utils. Bd. v. FCC, 120 F.3d 753 (8th Cir.
1997), vacated and remanded in part on other
grounds
, AT&T Corp. v. Iowa Utils. Bd., 525
U.S. 366 (1999) ........................................................................................... 24
Iowa Utils. Bd. v. FCC, 219 F.3d 744 (8th Cir.
2000) ..................................................................................................... 41, 58
Jama v. Immigration & Customs Enforcement, 543
U.S. 335 (2005) ........................................................................................... 16
Louisiana PSC v. FCC, 476 U.S. 355 (1986) ................................................. 27
MCI Telecomms. Corp. v. U.S. West Commc’ns,
204 F.3d 1262 (9th Cir. 2000) ..................................................................... 37
MetroPCS California, LLC v. FCC, 644 F.3d 410
(D.C. Cir. 2011) ........................................................................................... 24
NARUC v. FCC, 737 F.2d 1095 (D.C. Cir. 1984) ................................... 42, 64
Nat’l Cable & Telecomms. Ass’n v. FCC, 567 F.3d
659 (D.C. Cir. 2009) .................................................................................... 10
Nat’l Federation of Ind. Businesses v. Sebelius, 132
S. Ct. 2566 (2012) .......................................................................... 64, 65, 66
New Mexico v. EPA, 114 F.3d 290 (D.C. Cir. 1997) ...................................... 63
New York v. United States, 505 U.S. 144 (1992) ..................................... 65, 66
Pacific Bell v. Cook Telecom, Inc., 197 F.3d 1236
(9th Cir. 1999) ............................................................................................. 15
Phillips Petroleum Co. v. EPA, 803 F.2d 545 (10th
Cir. 1986) .............................................................................................. 61, 62
Printz v. United States, 521 U.S. 898 (1997) .................................................. 65
Qwest Corp. v. FCC, 689 F.3d 1214 (10th Cir.
2012) ............................................................................................................ 36
iv

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Qwest Corp. v. Minn. Pub. Utils. Comm’n, 684 F.3d
721 (8th Cir. 2012) ...................................................................................... 28
Qwest Corp. v. Pub. Utils. Comm’n of Colorado,
479 F.3d 1184 (10th Cir. 2007) ................................................................... 37
Rivera-Barrientos v. Holder, 666 F.3d 641 (10th
Cir. 2012) .............................................................................................. 17, 39
Rural Cellular Ass’n v. FCC, 588 F.3d 1095 (D.C.
Cir. 2009) ..................................................................................................... 42
Rural Cellular Ass’n v. FCC, 685 F.3d 1083 (D.C.
Cir. 2012) ....................................................................................................... 5
Smith v. Illinois Bell Tel. Co., 282 U.S. 133 (1930) .......................... 47, 48, 49
Sorenson Commc’ns, Inc. v. FCC, 659 F.3d 1035
(10th Cir. 2011) ...................................................................................... 7, 28
Sw. Bell Tel. Co. v. FCC, 153 F.3d 523 (8th Cir.
1998) ............................................................................................................ 40
Time Warner Entm’t Co. v. FCC, 56 F.3d 151 (D.C.
Cir. 1995) ..................................................................................................... 54
TOPUC v. FCC, 183 F.3d 393 (5th Cir. 1999) ................................................. 9
TOPUC v. FCC, 265 F.3d 313 (5th Cir. 2001) ............................................... 40
United States Telecom Ass’n v. FCC, 359 F.3d 554
(D.C. Cir. 2004) ................................................................................ 9, 56, 57
United States v. AT&T, 552 F. Supp. 131 (D.D.C.
1982) ............................................................................................................ 20
United States v. Manatau, 647 F.3d 1048 (10th Cir.
2011) ............................................................................................................ 13
Verizon New England, Inc. v. Me. Pub. Utils.
Comm’n, 509 F.3d 1 (1st Cir. 2007) ........................................................... 31
WorldCom, Inc. v. FCC, 288 F.3d 429 (D.C. Cir.
2002) ............................................................................................................ 19

STATUTES

 
5 U.S.C. §553(b)(3) ......................................................................................... 59
5 U.S.C. §553(c) ......................................................................................... 9, 61
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5 U.S.C. §706(2)(F) ......................................................................................... 63
47 U.S.C. §152(b)..................................................................................... 25, 27
47 U.S.C. §153(16).......................................................................................... 13
47 U.S.C. §153(35).......................................................................................... 29
47 U.S.C. §153(43).......................................................................................... 13
47 U.S.C. §153(47).......................................................................................... 13
47 U.S.C. §153(48).......................................................................................... 13
47 U.S.C. §201(b).................................................................................... passim
47 U.S.C. §203 ................................................................................................ 39
47 U.S.C. §205 ......................................................................................... 39, 40
47 U.S.C. §251(b)(5) ............................................................................... passim
47 U.S.C. §251(c)(3) ................................................................................ 29, 56
47 U.S.C. §251(d)(2) .......................................................................... 29, 30, 56
47 U.S.C. §251(d)(3) ................................................................................ 25, 29
47 U.S.C. §251(d)(3)(C) ................................................................................. 31
47 U.S.C. §251(f)(1) ....................................................................................... 58
47 U.S.C. §251(f)(2) ............................................................................ 8, 55, 58
47 U.S.C. §251(f)(2)(B) ........................................................................... 56, 58
47 U.S.C. §251(i) ............................................................................................ 24
47 U.S.C. §252(a)(1) ....................................................................................... 37
47 U.S.C. §252(b)(1) ....................................................................................... 44
47 U.S.C. §252(c) ............................................................................... 36, 43, 44
47 U.S.C. §252(d)..................................................................................... 43, 44
47 U.S.C. §252(d)(2) .......................................................................... 23, 41, 44
47 U.S.C. §252(d)(2)(A) ................................................................................. 33
47 U.S.C. §252(d)(2)(A)(i) ............................................................................. 45
47 U.S.C. §252(d)(2)(B) ................................................................................. 33
47 U.S.C. §252(d)(2)(B)(i) ......................................................................... 7, 14
47 U.S.C. §254(d)............................................................................................ 13
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47 U.S.C. §254(e) .............................................................................................. 5
47 U.S.C. §271(c)(2)(B)(iv) – (vi) .................................................................. 13
47 U.S.C. §332 ............................................................................. 24, 25, 39, 44
47 U.S.C. §332(c)(1)(B) ....................................................................... 6, 12, 25
47 U.S.C. §332(c)(3)(A) ................................................................................. 25
47 U.S.C. §405(a) ............................................................................................ 28
Telecommunications Act of 1996, Pub. L. No. 104-
104, §601(c)(1), 110 Stat. 56 (1996) ........................................ 25, 27, 28, 29

REGULATIONS

 
47 C.F.R. §1.1203(a) ....................................................................................... 60
47 C.F.R. §1.1203(b) ................................................................................ 60, 62
47 C.F.R. §1.1206 ........................................................................................... 60
47 C.F.R. §1.1206(b)(1) .................................................................................. 60
47 C.F.R. §1.1206(b)(2)(i) .............................................................................. 60
47 C.F.R. §1.1206(b)(2)(ii) ............................................................................. 60
47 C.F.R. §1.1206(b)(2)(iii) ............................................................................ 60
47 C.F.R. §1.1206(b)(2)(iv) ..................................................................... 60, 62

ADMINISTRATIVE DECISIONS

 
Access Charge Reform, 12 FCC Rcd 15982 (1997),
aff’d, Sw. Bell Tel. Co. v. FCC, 153 F.3d 523 (8th
Cir. 1998) ..................................................................................................... 40
Access Charge Reform, 15 FCC Rcd 12962 (2000),
aff’d in pertinent part, TOPUC v. FCC, 265 F.3d
313 (5th Cir. 2001) ...................................................................................... 40
BellSouth Telecommunications, Inc. Request for
Declaratory Ruling, 20 FCC Rcd 6830 (2005) ........................................... 29
Developing a Unified Intercarrier Compensation
Regime, 24 FCC Rcd 6475 (2008), aff’d Core
Commc’ns Inc. v FCC
, 592 F.3d 139 (D.C. Cir.
2010) ............................................................................................................ 17
vii

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Implementation of the Local Competition
Provisions in the Telecommunications Act of
1996
, 11 FCC Rcd 15499 (1996) ..................... 15, 17, 20, 21, 22, 31, 34, 35
Intercarrier Compensation for ISP-Bound Traffic,
16 FCC Rcd 9151 (2001) ............................................................................ 17
Policy and Rules Concerning Rates for Dominant
Carriers, 5 FCC Rcd 6786 (1990) .............................................................. 53
Review of the Section 251 Unbundling Obligations
of Incumbent Local Exchange Carriers, 18 FCC
Rcd 16978 (2003) ........................................................................................ 56

OTHER AUTHORITIES

 
Webster’s Third New Int’l Dictionary (2002) ................................................ 34


viii

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GLOSSARY


1996 Act

Telecommunications Act of 1996
ACA
Affordable
Care
Act
Act

Communications Act of 1934
APA

Administrative Procedure Act
ARC
Access Recovery Charge
Br. Petitioners’
Brief
CAF
Connect America Fund
CLEC
Competitive Local Exchange Carrier
FCC
Federal
Communications
Commission
ICC Intercarrier
Compensation
ILEC
Incumbent Local Exchange Carrier
IP
Internet Protocol
IXC
Interexchange Carrier
JA Joint
Appendix
LEC
Local Exchange Carrier
LSS
Local Switching Support
VoIP

Voice over Internet Protocol

ix

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IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

NO. 11-9900

IN RE: FCC 11-161

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

FEDERAL RESPONDENTS’ UNCITED RESPONSE TO THE JOINT INTERCARRIER
COMPENSATION PRINCIPAL BRIEF OF PETITIONERS

ISSUE PRESENTED

Whether the FCC lawfully reformed its intercarrier compensation rules
to implement – following a gradual transition that minimizes disruption to
consumers and service providers – a bill-and-keep regulatory framework for
all telecommunications traffic exchanged with local telephone companies.

INTRODUCTION AND SUMMARY OF ARGUMENT

1
In the Order on review, the FCC comprehensively reformed an
antiquated intercarrier compensation (“ICC”) regime. That regime had
developed at a time when local phone companies – also known as incumbent
local exchange carriers (“incumbent LECs” or “ILECs”) – were regulated
monopolies and the cost of providing local phone service was effectively

1 Connect America Fund, 26 FCC Rcd 17663 (2011) (“Order”) (JA__).

Appellate Case: 11-9900 Document: 01019014097 Date Filed: 03/06/2013 Page: 12
subsidized by “access charges” paid to LECs by long-distance carriers
(known as “interexchange carriers” or “IXCs”). While technology and
market changes developed at a rapid pace, until the FCC adopted its Order,
the ICC framework largely had remained frozen in time. This resulted in
regulatory distortions, extensive arbitrage, and waste – with IXCs paying
LECs rates well above the incremental cost of initiating (“originating”) or
delivering (“terminating”) telephone calls. As described in greater detail in
the FCC Preliminary Brief (at 1-5, 13-20), this archaic regime was an
obstacle to the deployment of more advanced and efficient Internet Protocol
(“IP”) networks and gave traditional phone companies an economically
unsound regulatory advantage over their wireless and Voice-over-IP (“VoIP”)
competitors. The regime also had become increasingly unstable, as ICC
revenues were eroding at an uncertain pace, making it difficult for companies
to plan and make investment decisions. See Order ¶9 (JA ___) (summarizing
shortcomings of the existing ICC systems).
To modernize ICC – and in lieu of a patchwork of 50 different state
regimes that had produced intrastate access charge rates as high as 13 cents a
minute, even though the incremental cost of call termination was close to
2

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2
zero – the FCC adopted a ratemaking methodology known as bill-and-keep.
Under the bill-and-keep framework, carriers recover their costs from their
own customers (supplemented by explicit universal service subsidies, when
necessary), rather than from their competitors.
In essence, the FCC adopted for local telephone companies the same
model that was already in place and continues to work well for the wireless
industry. The FCC concluded that a “uniform national bill-and-keep
framework” for “all telecommunications traffic exchanged with a LEC”
would best serve the goals of the Communications Act of 1934 (“the
Communications Act” or “the Act”) while also preserving the state-federal
partnership that Congress envisioned in the Telecommunications Act of 1996
(“the 1996 Act”). Order ¶¶34, 776 (JA__, __).
The FCC explained that, in addition to its other benefits, a bill-and-
keep approach would more accurately reflect “cost causation” principles (the
economic theory that costs should be borne by those who cause them) than
the existing intercarrier compensation systems. Order ¶744 (JA__). Those
existing systems relied on a “calling-party-network-pays” approach
predicated on “the assumption that the calling party [is] the sole beneficiary

2 Order ¶753 (JA__); Connect America Fund, 26 FCC Rcd 4554 ¶54 (2011)
(“2011 NPRM”) (JA__).
3

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and sole cost causer of a call.” Id. For example, under that approach, when
someone in Dallas makes a conventional long-distance call to someone in
Denver, the access charges that both the Dallas and Denver LECs impose on
the caller’s IXC ultimately are paid – through elevated long-distance charges
– by the caller in Dallas. Similarly, when someone makes a local call, any
charges that the originating LEC pays the terminating LEC for delivering the
call are ultimately paid by the originating LEC’s end users.
The FCC, however, credited “recent analyses” recognizing that “both
parties generally benefit from participating in a call, and therefore, that both
parties should split the cost of the call.” Order ¶744 & n.1304 (JA__)
(emphasis added) (cataloguing economic analyses). Bill-and-keep reflects
that shared benefit and thus better adheres to cost causation principles.
Regardless of the direction of the call, both the calling and called parties pay
their own providers for the costs those providers incur in carrying the call on
their respective networks.
To the extent carriers in costly-to-serve areas are unable to recover
their costs through affordable charges to their end users, they may do so
through universal service support. Thus, where necessary, affordable service
will be ensured by explicit subsidies, not implicit subsidies contained in
inefficiently high ICC rates. That result follows directly from “the direction
4

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from Congress in the 1996 Act” that subsidies should be “explicit rather than
implicit.” Id. ¶747 (JA__); see 47 U.S.C. §254(e); Rural Cellular Ass’n v.
FCC, 685 F.3d 1083, 1085 (D.C. Cir. 2012) (“[Congress] directed the
Commission to replace the system of implicit subsidies with explicit ones.”).
The FCC also determined that a bill-and-keep regime, when compared
with existing ICC-based systems, would improve consumers’ ability to
choose lower-cost, more efficient carriers. Order ¶745 (JA__). Because each
carrier could recover its costs only from its own subscribers (and could not
shift costs to users of other networks through intercarrier charges), bill-and-
keep “helps reveal the true cost of the network to potential subscribers.” Id.
That transparency, in turn, provides appropriate incentives to efficient carriers
that offer the best mixes of service in terms of features, quality, and price. Id.
n.1307 (JA__).
The FCC concluded that, because of these varied benefits, bill-and-
keep is an essential component of the comprehensive universal service and
ICC reforms adopted in the Order – reforms that would provide consumer
benefits “outweigh[ing] any costs by at least 3 to 1.” Order ¶14 (JA__); see
generally id. ¶¶6, 9, 736-54 (JA__, __, __-__).
In their brief, petitioners do not challenge the need for ICC reform or
dispute the benefits of adopting bill-and-keep. Instead, they argue that the
5

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Order is ultra vires and conflicts with the Administrative Procedure Act (“the
APA”) and the Constitution. Those claims lack merit.

I.A.

Section 251(b)(5) of the Act, 47 U.S.C. §251(b)(5), imposes upon
LECs the “duty to establish reciprocal compensation arrangements for the
transport and termination of telecommunications” (emphasis added), without
regard to historical distinctions based on the interstate or intrastate nature of
the traffic. Moreover, 47 U.S.C. §201(b) authorizes the FCC to “prescribe
such rules … as may be necessary in the public interest to carry out the
provisions of this [Act],” including section 251(b)(5). See AT&T Corp. v.
Iowa Utils. Bd., 525 U.S. 366, 378 & n.6, 381 n.7 (1999) (“AT&T”). The
FCC reasonably determined that, together, these provisions authorize it to
regulate the default compensation arrangements applicable to all
telecommunications traffic exchanged with a LEC. Order ¶¶760, 770 (JA__,
__).
With respect to traffic exchanged with wireless carriers and interstate
traffic, other statutory sections provide additional, independent authority for
the FCC to adopt its reforms. See Order ¶¶771, 779 (JA__, __) (citing 47
U.S.C. §§201(b), 332(c)(1)(B)).
As to all these points, the FCC’s statutory interpretations are uniformly
reasonable and should be affirmed under Chevron USA, Inc. v. Natural Res.
6

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Def. Council, 467 U.S. 837, 842-43 (1984). See Sorenson Commc’ns, Inc. v.
FCC, 659 F.3d 1035, 1042 (10th Cir. 2011).

B.

The FCC reasonably concluded that the Act authorizes the bill-and-
keep ratemaking methodology adopted in the Order. Order ¶¶771-776
(JA__-__).
Section 252(d)(2) expressly authorizes “arrangements that waive
mutual recovery (such as bill-and-keep arrangements).” 47 U.S.C.
§252(d)(2)(B)(i) (emphasis added). End-user charges under bill-and-keep
also comply with the first sentence of section 201(b), which requires carrier
rates to be “just and reasonable.” Id. §201(b).
In the face of that language, petitioners nevertheless argue that they
have a statutory right to be compensated through charges to other carriers.
In fact, however, nothing in the statute compels the FCC to permit recovery
of the costs of telecommunications traffic from other carriers, as opposed to
end users or direct universal service subsidies. In the absence of such a clear
statutory command, the FCC’s reasonable result must be upheld.

II.

The FCC was fully justified in adopting a recovery mechanism
designed to enable ILECs to recover some – but not all – of the ICC revenues
that are reduced under the new rules. Order ¶¶847-853 (JA__-__). Historical
trends – which the FCC reasonably predicted were likely to continue in the
7

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absence of reform – showed that rate-of-return LECs were already losing
access revenues at an annual rate of approximately 7 percent. Order ¶894
(JA__). The record also suggested that existing access charge levels – which,
for rate-of-return carriers, reflected a 20-year-old 11.25 percent rate-of-return
prescription – were overly generous. Id. ¶¶638, 892, 894 (JA__, __, __). In
these circumstances, the FCC reasonably determined that limiting revenue
reductions under ICC reform to 5 percent per year – less than had been
occurring before the Order – would be “more than sufficient to provide
carriers reasonable recovery for regulated services.” Id. ¶924 (JA__).
Contrary to petitioners’ argument (Br. 49-50), there was no need formally to
separate interstate and intrastate costs associated with the recovery
mechanism, because all of the traffic at issue is subject to FCC jurisdiction.

III.

The Act permits small LECs to petition state commissions to
suspend or modify section 251(b) obligations upon demonstrating, among
other things, that such relief would serve the “public interest.” 47 U.S.C.
§251(f)(2). Petitioners challenge the FCC’s prediction (Order ¶824 (JA__))
that any future state commission decision to suspend or delay the bill-and-
keep methodology would be “highly unlikely” to satisfy section 251(f)(2)’s
“public interest” component. Br. 45-49. That claim is unripe because the
agency’s prediction is not final agency action. See United States Telecom
8

Appellate Case: 11-9900 Document: 01019014097 Date Filed: 03/06/2013 Page: 19
Ass’n v. FCC, 359 F.3d 554, 594 (D.C. Cir. 2004) (“USTA”). In any event,
the FCC’s explanation of the need to replace the ICC system fully justified its
predictive statements regarding section 251(f)(2). See Order ¶¶741-759, 788-
797, 824 (JA__-__, __-__, __).

IV.A.

Petitioners provide no support for their contention (Br. 58) that
the FCC violated the APA and principles of due process by relying on filings
that lawfully were placed in the record. The FCC’s permit-but-disclose filing
rules are designed to enable the agency and the public to evaluate the record
before the agency acts. The FCC followed those rules and gave all parties the
“opportunity to participate” that the APA requires. 5 U.S.C. §553(c).
Indeed, petitioners actively employed the agency’s procedures to make
numerous filings, including filings late in the proceeding.

B.

The FCC has well-established authority to place conditions on the
receipt of universal service subsidies. TOPUC v. FCC, 183 F.3d 393, 444
(5th Cir. 1999). Petitioners present no support for their contention (Br. 62-
63) that certain universal service conditions and other requirements adopted
in the Order unconstitutionally burden state sovereignty.
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ARGUMENT

I.

THE FCC REASONABLY DETERMINED THAT
MULTIPLE PROVISIONS OF THE COMMUNICATIONS
ACT AUTHORIZE THE ADOPTION OF A BILL-AND-
KEEP RATEMAKING METHODOLOGY FOR THE
EXCHANGE OF TELECOMMUNICATIONS WITH
LECS.

Having detailed why bill-and-keep promotes the goals of the
Communications Act, see Order ¶¶736-759 (JA__-__), the FCC also
explained its legal authority to adopt it, see id. ¶¶760-781 (JA__-__). This
legal analysis addresses two questions: (1) whether particular sources of
regulatory authority reach the traffic at issue, and (2) whether those
provisions permit bill-and-keep as a default methodology for that traffic. As
to both questions, petitioners assert (Br. 3) that the FCC’s statutory analysis
fails under Chevron “step one.” To succeed on such a challenge, petitioners
must demonstrate that the statute “unambiguously forecloses the
Commission’s interpretation.” Nat’l Cable & Telecomms. Ass’n v. FCC, 567
F.3d 659, 664 (D.C. Cir. 2009). Petitioners cannot show that the FCC
breached any such unambiguous requirement. The agency’s reasonable
interpretation of the law, which comports with Congress’s explicit policy
goals, should be affirmed.
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A. The FCC Reasonably Found That It Has Regulatory

Authority To Establish The Applicable Ratemaking
Regime For Telecommunications Exchanged With A
LEC.

The FCC determined in the Order that it had rulemaking authority to
establish a regulatory structure for “telecommunications” that a LEC delivers
to or receives from another telecommunications provider in the course of
originating or completing a call. The FCC further explained that its authority
to establish rules as to that traffic flows directly from the last sentence of
section 201(b), which grants the agency broad power to “prescribe such rules
and regulations as may be necessary in the public interest to carry out the
provisions of this Act.” Order ¶760 (JA__) (quoting section 201(b)); see
AT&T, 525 U.S. at 378 (“[T]he grant in §201(b) means what it says: The
FCC has rulemaking authority to carry out the ‘provisions of this Act,’ which
include §§251 and 252.”).
As we demonstrate below, in adopting the Order’s ICC reforms, the
FCC reasonably employed this broad grant of rulemaking power to
implement three of the Act’s substantive provisions: (1) section 251(b)(5),
which imposes on LECs a “duty to establish reciprocal compensation
arrangements for the transport and termination of telecommunications,”
Order ¶760 (JA__) (quoting section 251(b)(5)); (2) section 201(b), the first
sentence of which requires that interstate communications traffic be provided
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on “just and reasonable” rates and terms, id. ¶771 (JA__) (quoting section
201(b)); and (3) section 332(c)(1)(B), which obligates LECs to interconnect
with wireless carriers “pursuant to the provisions of section 201,” id. ¶779
(JA__) (quoting section 332(c)(1)(B)).
1. Section 251(b)(5) Authorizes The FCC’s Intercarrier

Compensation Reforms.

The FCC lawfully concluded that its authority to adopt rules
implementing section 251(b)(5) empowered it to establish a regulatory
structure to govern how LECs are compensated when they exchange any
telecommunications traffic that originates or terminates on their networks.
Specifically, the FCC reasonably interpreted that provision to reach not just
local traffic (i.e., traffic exchanged between carriers operating within the
same service area), but also to cover the exchange of access traffic involving
the use of LEC facilities to originate or terminate long-distance calls (also
known as interexchange or “IXC” traffic). See Order ¶¶761-762 (JA__-__).
Petitioners’ challenges (Br. 7-26) to the FCC’s interpretation lack merit.
First, and most importantly, reading section 251(b)(5) to apply to
interstate and intrastate traffic comports with the statutory text. Section
251(b)(5) provides, by its terms, that the traffic to which the reciprocal
compensation regulatory structure applies is “the transport and termination of
telecommunications.” Order ¶761 (JA__) (emphasis added) (quoting section
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251(b)(5)). “[T]elecommunications,” in turn, is in no way limited to local
traffic. It “means the ‘transmission, between or among points specified by
the user, of information of the user’s choosing, without change in the form or
content of the information as sent and received’ and thus encompasses
communications traffic of any geographic scope (e.g., ‘local,’ ‘intrastate,’ or
‘interstate’) or regulatory classification (e.g., ‘telephone exchange service,’
‘telephone toll service,’ or ‘exchange access).” Id. (emphasis added)
(quoting 47 U.S.C. §153(43), (47), (48), (16)).
Moreover, when Congress wants to refer to narrower subsets of
“telecommunications,” it does so clearly. See, e.g., 47 U.S.C. §254(d)
(requiring carriers “that provide[] interstate telecommunications services” to
contribute to the federal universal service fund (emphasis added)); id.
§271(c)(2)(B)(iv) – (vi) (referencing “local loops,” “local transport,” and
local switching” (emphasis added)). The fact that Congress did not do so in
section 251(b)(5) strongly supports the FCC’s reading that that provision
applies to all telecommunications exchanged with a LEC. See United States
v. Manatau, 647 F.3d 1048, 1052 (10th Cir. 2011) (“Where Congress
includes particular language in one section of a statute but omits it in another
section of the same Act, it is generally presumed that Congress acts
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intentionally and purposely in the disparate inclusion or exclusion.” (citation
omitted)).
Petitioners’ arguments are thus all contrary to the defined meaning of
the specific term that Congress used – “telecommunications” – to establish
the set of traffic subject to section 251(b)(5). Petitioners nevertheless claim
(Br. 7-9) that section 251(b)(5)’s reference to “reciprocal compensation”
indicates that that provision applies only to local (that is, non-access) traffic.
The term “reciprocal compensation,” however, does not establish the scope of
section 251(b)(5) – that is what the broad, statutorily defined term
“telecommunications” does. Rather, it refers to a method of compensation,
specifically including the “bill-and-keep” methodology the FCC adopted
here. See 47 U.S.C. §252(d)(2)(B)(i).
Nor can petitioners establish a clear statutory limitation on the traffic
covered by section 251(b)(5) by suggesting that, historically, all access
charge payments ran in one direction – from the IXC to the LEC, and never
the other way around. Such payments, they assert, are not “reciprocal” in the
sense of being made “by ‘each to the other.’” Br. 10 (quoting dictionary
definition). But the historical direction of access charge payments is merely a
relic of the existing calling-party-network-pays ICC system that the Order
replaces. There is no logical reason that compensation for this traffic must
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flow in only one direction, and Congress did not dictate any such result.
Thus, even from its earliest orders construing the 1996 Act, the FCC has
rejected the view that traffic direction controls the scope of section 251(b)(5).
See Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, 11 FCC Rcd 15499, 15517 ¶34, 15997
¶1008 (1996) (“Local Competition Order”) (ruling that the exchange of
telecommunications between LECs and paging carriers is subject to section
251(b)(5), even though the flow of and compensation for that traffic ran in
only one direction); see also Pacific Bell v. Cook Telecom, Inc., 197 F.3d
1236, 1242-45 (9th Cir. 1999) (affirming as lawful the application of section
251(b)(5) to one-way traffic from a LEC to a paging carrier).
Petitioners also indirectly cite general trade press accounts (Br. 8 n.4)
to suggest that the term “reciprocal compensation arrangement[]” in section
251(b)(5) was clearly understood in 1996 to extend only to local traffic and
not to long-distance traffic. Br. 7-9. Those accounts, however, simply list
early (pre-1996 Act) state commission efforts to accommodate the advent of
competition in the local telephone markets within their jurisdictions by
adopting “reciprocal compensation” regulatory structures, including “bill-
and-keep.” Those accounts of the existing regime in no way undermine the
fact that section 251(b)(5) applies to all “telecommunications” or indicate that
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any regulatory structure under that provision must be confined to the
3
exchange of local traffic.
Petitioners similarly cite (Br. 9 n.5) a two-and-a-half-year-old “Issues
of Interest” informational page on the FCC’s public website, which describes
how “reciprocal compensation” previously operated under FCC rules that
pre-dated the Order. There is no dispute here that FCC rules under section
251(b)(5) previously applied more narrowly. That does not mean, however,
that the statute plainly precludes the creation of a broader regime, as
petitioners must establish to prevail on their Chevron Step I claim. As noted
above, in fact, the statutory text strongly supports the FCC’s authority to
adopt a broader regime under section 251(b)(5). See Order ¶¶763-764
(JA__-__). Nothing petitioners have cited indicates that the statute must be
read in a way that contradicts that text; accordingly, the FCC’s reasonable
interpretation must be upheld.
Nor is there merit to petitioners’ contention (Br. 13) that the FCC’s
reading of section 251(b)(5) to reach beyond local telecommunications is an
“unexplained departure from prior interpretations.” The agency

3 Cf. Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 349
(2005) (courts do not presume that Congress intended to incorporate prior
judicial constructions unless “the supposed judicial consensus [is] so broad
and unquestioned that [the Court] must presume Congress knew of and
endorsed it”).
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acknowledged and explained its change of views. The FCC stated that it
once had construed section 251(b)(5) “to ‘apply only to traffic that originates
and terminates within a local area.’” Order ¶761 (JA__) (quoting Local
Competition Order, 11 FCC Rcd at 16013 ¶1034). But it changed its reading
of the statute – and fully explained that change – more than a decade ago
4
“[i]n the 2001 ISP Remand Order.” It “reiterated” that view in 2008 in the
5
6
Second ISP Remand Order, and “proposed [it again] in the [2011 NPRM].”
Finally, as discussed above (at 12-16), the FCC fully explained its current
position in the Order on review. See Order ¶¶761-765 (JA__,__). Chevron
requires no more. See Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th
Cir. 2012) (so long as an agency acknowledges its prior interpretation, review
under Chevron is “no[] more searching where the agency’s decision is a
change from prior policy”).

4 Order ¶761 (JA__) (citing Intercarrier Compensation for ISP-Bound
Traffic, 16 FCC Rcd 9151, 9165-67 ¶¶31-34 (2001) (“ISP Remand Order”)).
The FCC explained in the ISP Remand Order that, but for the temporary
preservation of access charge regulation in section 251(g), “section 251(b)(5)
would require reciprocal compensation for transport and termination of all
telecommunications traffic” exchanged with a LEC. 16 FCC Rcd at 9166
¶32.
5 Order ¶761 (JA__) (citing Developing a Unified Intercarrier
Compensation Regime, 24 FCC Rcd 6475, 6479 ¶¶7-8 (2008) (“Second ISP
Remand Order
”), aff’d, Core Commc’ns Inc. v. FCC, 592 F.3d 139 (D.C. Cir.
2010).
6 Order ¶761 (JA__) (citing 2011 NPRM ¶514 (JA__-__)).
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Although the broad scope of section 251(b)(5) itself is adequate to
support the FCC’s conclusion that it reaches exchange access traffic, that
result is buttressed by the text of section 251(g). Order ¶¶763, 766 (JA__,
__). Section 251(g) requires LECs to continue to “provide exchange access
… to interexchange carriers … in accordance with the same equal access and
nondiscriminatory interconnection restrictions and obligations (including
receipt of compensation)” that were applicable prior to the 1996 Act “until
such restrictions and obligations are explicitly superseded by regulations
prescribed by the Commission.” 47 U.S.C. §251(g). If section 251(b)(5), by
its terms, did not otherwise reach exchange access traffic, there would have
been no reason for Congress to enact section 251(g) to preserve the pre-
existing access charge regime “until” the FCC affirmatively takes action to
“supersede[]” that regime. 2011 NPRM ¶514 (JA__). The very existence of
section 251(g) thus suggests that Congress envisioned the kind of
comprehensive reform the FCC adopted in the Order. Petitioners’ narrow
reading of section 251(b)(5), by contrast, would render section 251(g)
essentially a nullity, contrary to established canons of statutory construction.
In re Dawes, 652 F.3d 1236, 1242 (10th Cir. 2011) (statutes should be
construed so that no part will be superfluous).
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Petitioners nevertheless suggest that preservation of access charges for
a time pursuant to section 251(g) somehow permanently limited the scope of
section 251(b)(5). The FCC, however, reasonably concluded, in accord with
its text, that section 251(g) “preserves access charge rules only during a
transitional period, which ends when we adopt superseding regulations.”
Order ¶766 (JA__) (emphasis added); see WorldCom, Inc. v. FCC, 288 F.3d
429, 430 (D.C. Cir. 2002) (section 251(g) “is worded simply as a transitional
device, preserving various LEC duties that antedated the 1996 Act until such
time as the Commission should adopt new rules pursuant to the Act”).
Nor does the fact that section 251(g) expressly preserves, among other
things, interstate access charge regulations “of the [Federal Communications]
Commission” for a transitional period, without mentioning state commission
(that is, intrastate) access charge regulations, mandate that the FCC preserve
the latter indefinitely. See Br. 23-25. To the contrary, if the absence of an
express reference to intrastate access in section 251(g) were read to imply
anything, it would be that Congress intended the broad language of section
251(b)(5) to displace the intrastate access regime immediately – without a
transitional period. Such a reading would have limited practical effect today,
however, given that “all traffic” exchanged with a LEC “will, going forward,
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be governed by section 251(b)(5) regardless of whether section 251(g)
previously covered the state intrastate access regime.” Order n.1374 (JA__).
In any event, the FCC explained that, although section 251(g) does not
refer to intrastate access charge mechanisms by name, “it would be
incongruous to conclude that Congress was concerned about the effects of the
potential disruption to the interstate access charge system, but had no such
concerns about the effects on analogous intrastate mechanisms.” Order
n.1374 (JA__) (quoting Local Competition Order, 11 FCC Rcd at 15869
¶732). The FCC found support for this view in the fact that (1) section
251(g) expressly does preserve access charge mechanisms created by any
“court order [or] consent decree,” and (2) the court order accompanying the
consent decree that broke up the Bell System “made clear that the decree
required access charges to be used in both the interstate and intrastate
jurisdictions.” Order n.1374 (JA__) (citing United States v. AT&T, 552 F.
Supp. 131, 169 n.161 (D.D.C. 1982)). “Because both the interstate and
intrastate access charge systems were created by the same consent decree,”
the FCC explained, it is “reasonable to conclude that both systems were
preserved by section 251(g)” until they are superseded by FCC regulations.
Order n.1374 (JA__).
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Finally, even if petitioners’ section 251(g) arguments created an
ambiguity as to the proper interpretation of the scope of section 251(b)(5),
they again do not establish that the FCC violated a clear statutory command,
and thus the agency’s reasonable understanding of the relevant statutory
provision should be affirmed under Chevron.
Petitioners are no more successful in arguing that section 251(b)(5)
does not apply to originating access traffic. They claim that, because section
251(b)(5) addresses reciprocal compensation arrangements for “the transport
and termination of telecommunications,” not for the origination of
telecommunications, Congress intended to exempt that traffic from the
section 251(b)(5) regime. Br. 26. As the FCC has long determined, however,
the absence of any reference to originating traffic means that – apart from
access charge rules temporarily preserved by section 251(g) – the originating
carrier is barred from charging another carrier for delivery of traffic that falls
within the scope of section 251(b)(5). See Local Competition Order, 11 FCC
Rcd at 16016 ¶1042 (finding that because section 251(b)(5) does not specify
“charges payable to a carrier that originates traffic,” it is best read to
“prohibit[]” a LEC from “charg[ing] a [wireless] provider or other carrier for
terminating LEC-originated traffic”); Order ¶817 (JA__) (reaffirming that
view of section 251(b)(5) in the context of a bill-and-keep regime).
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Relatedly, petitioners appear to argue (Br. 12-13, 26-27) that, because
the FCC’s initial discussion of section 251(b)(5) in the 1996 Local
Competition Order separately defined “transport” and “termination” with
reference only to “terminating traffic,” the current Order’s conclusion that
section 251(b)(5) reaches originating access is an unlawful sub silentio repeal
of the agency’s earlier definitions. Not so. The purpose of those definitions
was not to narrow the scope of section 251(b)(5) traffic, but to establish that
“transport and termination should be treated as two distinct functions,”
because each has “its own cost.” Local Competition Order, 11 FCC Rcd at
16015-16 ¶¶1039-1040. Neither in form nor substance does the Order repeal
those definitions.
2. Sections 201(b) And 332 Provide The FCC

Independent Substantive Authority To Establish The
Order

’s

Regulatory Framework.

For the reasons discussed above, petitioners’ arguments that section
251(b)(5) does not reach some or all access traffic do not meet Chevron
standards for overturning an agency decision. Even if their section 251(b)(5)
argument were accepted, however, that would not prevent the FCC from
establishing a regulatory framework for interstate access or for the exchange
of any traffic, access or otherwise, between LECs and wireless providers.
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a. Section 201(b) Provides The FCC Authority Over

Interstate Traffic Exchanged With A LEC.

With respect to interstate traffic generally, the first sentence of section
201(b) of the Act empowers – indeed requires – the FCC to ensure that a
carrier’s rates and terms of service are “just and reasonable.” 47 U.S.C.
§201(b) (cited in Order ¶771 (JA__)). Section 201(b) thus supplies a
separate and independent statutory basis to reach interstate traffic exchanged
by a LEC.
Petitioners allege that section 201(b) is only a general provision that is
trumped by the “specific instructions with respect to pricing” in sections
251(b)(5) and 252(d)(2). Br. 38. However, the D.C. Circuit rejected that
same argument in upholding the FCC’s prior reliance on section 201(b) as an
independent basis for regulating traffic that also fell within the scope of
section 251(b)(5). Core, 592 F.3d at 143-46. The court determined that “it is
inaccurate to characterize §201 as a general grant of authority and §§251-252
as a specific one.” Id. at 143. Rather:
“When . . . two statutes apply to intersecting sets . . . , neither is
more specific.” Hemenway v. Peabody Coal Co., 159 F.3d 255,
264 (7th Cir. 1998). That is the case here. Not all inter-LEC
connections are used to deliver interstate communications, just
as not all interstate communications involve an inter-LEC
connection.
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Core, 592 F.3d at 143-44. The court found added support for this reading in
47 U.S.C. §251(i), which provides that “[n]othing in this section shall be
construed to limit or otherwise affect the [FCC’s] authority under section
201.” 592 F.3d at 143 (quoting section 251(i)). “Given th[e] overlap”
between section 201(b) and 251(b)(5) traffic, the court determined that
“§251(i)’s specific saving[s]” clause protects the FCC’s authority under
section 201(b) from “any negative implications from §251.” Id. at 144;
accord Order ¶¶770-771 (JA__-__) (citing Core and section 251(i)).
Contrary to petitioners’ assertion (Br. 40), nothing in the court’s analysis is
logically limited to the specific traffic at issue in that case (Internet Service
Provider-bound traffic), which was just one subset of the overlapping “inter-
LEC connection[s]” described in its analysis.
b. Section 332 Provides The FCC With Authority Over

All Wireless Traffic Exchanged With A LEC.

The Eighth and D.C. Circuits have confirmed that 47 U.S.C. §332
provides the FCC with independent authority to establish reciprocal
compensation terms with respect to wireless traffic exchanged with a LEC.
See Iowa Utils. Bd. v. FCC, 120 F.3d 753, 800 n.21 (8th Cir. 1997), vacated
and remanded in part on other grounds, AT&T, 525 U.S. 366; MetroPCS
California, LLC v. FCC, 644 F.3d 410, 414 (D.C. Cir. 2011) (recognizing
that the FCC “can issue [rate] guidance” under section 332 in connection
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with the exchange of intrastate traffic between LECs and wireless carriers,
although it need not do so).
These holdings follow from the fact that section 332 “obligates LECs
to interconnect with wireless providers ‘pursuant to the provisions of section
7
201,’” and preempts states from “regulating the entry of or the rates charged
8
by [wireless] providers.” They also follow from the language in section 2(b)
of the Act that “[e]xcept[s]” section 332 from any limitation on the FCC’s
jurisdiction over intrastate wireless communications that otherwise might
9
apply. Petitioners’ brief nowhere challenges this basis for ICC reform.
3. The FCC’s Statutory Authority Provides Ample Basis

For The Order

’s Narrow And Tailored Preemption Of
State Regulation.

Relying on the proposition that preemption of state law is “not lightly
10
to be presumed,” as well as on two statutory provisions that assertedly limit
11
the FCC’s power to override pre-existing state regulations, petitioners

7 Order ¶779 (JA__) (quoting 47 U.S.C. §332(c)(1)(B)).
8 Id. (quoting 47 U.S.C. §332(c)(3)(A)).
9 Id. (quoting 47 U.S.C. §152(b)).
10 Br. 14 & nn.13-14.
11 Br. 15-16 (citing the 1996 Act, §601(c)(1), and 47 U.S.C. §251(d)(3)).
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contend that the FCC lacks the power to preempt state regulatory authority
over intrastate access.
These claims are foreclosed by controlling Supreme Court precedent.
The Court has squarely held that section 251 applies to both interstate and
intrastate traffic, and section 251(b)(5), as discussed, applies broadly to all
“telecommunications” traffic exchanged by LECs within both those
categories. In AT&T, which involved (among other things) the claim that the
FCC lacked authority to adopt regulations applying section 251(b)(5) to
intrastate traffic, the Supreme Court acknowledged the existence of a
“presumption against the pre-emption of state police power regulations” that
would ordinarily require a “clear and manifest showing of congressional
intent to supplant.” 525 U.S. at 378 n.6. But the Court emphasized that
section 251(b)(5) – among other provisions added by the 1996 Act –
“unquestionably” has “taken the regulation of local telecommunications
competition away from the States.” Id. Moreover, Congress has “explicitly
… given rulemaking authority” with respect to that provision to the FCC. Id.
at 381 n.7; see also id. at 378 n.6, 381 n.8 (holding that the 1996 Act
established a “new federal regime [that] is to be guided by federal-agency
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regulations” and “removed a significant area from States’ exclusive
12
control”).
In this regard, petitioners notably do not dispute that the reference to
“telecommunications” in section 251(b)(5) displaces state regulation of local
(non-access) intrastate traffic exchanged by LECs; in fact, they (wrongly)
contend (Br. 10) that it applies only to that form of intrastate traffic. Nothing
in the text of that provision suggests that Congress intended to include one
species of intrastate traffic but exclude another within the scope of federal
regulation (more specifically, to cover intrastate local traffic while leaving
out intrastate access traffic). Petitioners’ argument thus relies on a distinction
between types of intrastate traffic that has no basis in the statutory text.
Petitioners also contend that section 601(c)(1) of the 1996 Act – which
provides that “[t]his [1996] Act and the amendments made by this Act shall
not be construed to modify, impair, or supersede Federal, State, or local law
unless expressly so provided in such Act or amendments” – prevents the FCC

12 The Supreme Court in AT&T also rejected the argument, which
petitioners make only in passing here (Br. 14, 19), that section 2(b) of the Act
and Louisiana PSC v. FCC, 476 U.S. 355 (1986), deny the FCC authority to
implement section 251(b)(5) with respect to intrastate matters. See AT&T,
525 U.S. at 378-81; Order ¶760 (JA__). Although AT&T did not specifically
address intrastate access service, its analysis applies with equal force here: as
explained above, such service falls comfortably within the term
“telecommunications” in section 251(b)(5).
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from applying section 251(b)(5) to preempt state regulation of intrastate
access charges. Br. 15. No party raised the section 601(c)(1) issue before the
FCC. Judicial review of that question thus is barred by 47 U.S.C. §405(a),
which prevents review of “questions of fact or law upon which the
Commission ... has been afforded no opportunity to pass.” E.g., Sorenson,
659 F.3d at 1044 (quoting section 405(a)).
The claim is baseless in any event. Courts have properly read section
601(c)(1) narrowly, because “it is a general rule in preemption analysis that a
savings provision does not ‘bar the ordinary working of conflict preemption
principles’ ... lest [it] ‘permit[ a] law to defeat its own objectives, or
potentially ... to destroy itself.’” Farina v. Nokia Inc., 625 F.3d 97, 131 (3d
Cir. 2010) (quoting Geier v. Am. Honda Motor Co., 529 U.S. 861, 869, 872
(2000)); accord Qwest Corp. v. Minn. Pub. Utils. Comm’n, 684 F.3d 721, 731
(8th Cir. 2012). Section 251(b)(5), by its terms, applies to all
“telecommunications” traffic exchanged by a LEC, and the access traffic that
LECs exchange with other providers indisputably is “telecommunications,”
as that term is defined in the Communications Act. Moreover, section 251(g)
expressly contemplates that the FCC will adopt new regulations
“supersed[ing]” existing exchange access rules, including those governing
“receipt of compensation.” 47 U.S.C. §251(g). Accordingly, ordinary
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conflict preemption principles displace intrastate access charge regulation
here, and section 601(c)(1) does not apply.
Petitioners also incorrectly assert (Br. 16-19) that section 251(d)(3) of
the Communications Act bars preemption of state access charge regulation.
That section preserves any regulation, order, or policy of a state commission
that:
(A) establishes access and interconnection obligations of local
exchange carriers; (B) is consistent with the requirements of this
section [251]; and (C) does not substantially prevent
implementation of the requirements of this section and the
purposes of this part [sections 251 through 261 of the
Communications Act].
47 U.S.C. §251(d)(3).
Section 251(d)(3), as a threshold matter, is inapplicable here because it
“addresses state authority to prescribe regulations relating to [network
element] unbundling” by incumbent LECs for the benefit of new
13
“competitive” LECs (“CLECs”), as provided in the 1996 Act. See 47
U.S.C. §251(c)(3) & (d)(2) (providing for network element unbundling); see
also id. §153(35) (defining “network element”). The “access” at issue under
section 251(d)(3) is thus “access” to “network elements,” which are piece-
parts of ILEC telephone networks that Congress authorized CLECs to lease to

13 BellSouth Telecommunications, Inc. Request for Declaratory Ruling, 20
FCC Rcd 6830, 6841 ¶23 (2005).
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provide competing services. The provision is not relevant to the wholly
distinct issue of access charges for delivering interexchange traffic.
The text and structure of section 251(d) support this understanding.
Section 251(d)(2), the immediately preceding subsection, is titled “Access
standards” and requires the FCC to consider whether “access” to ILEC
network elements should be required. See 47 U.S.C. §251(d)(2). Thus, when
section 251(d)(3) refers to “access … obligations of local exchange carriers,”
it is referring back to access to network elements, not to the distinct issue of
access charges for interexchange service.
Even if that were incorrect, however, there is no merit to petitioners’
assertion (Br. 16) that the FCC “conduct[ed] no analysis of §251(d)(3) and
fail[ed] to articulate any criterion that allows the agency to override this
express reservation of State authority.” To the contrary, the agency explained
that “section 251(d)(3) does not speak to the preemptive effect of the statute”
itself. Order n.1374 (JA__); see id. ¶¶767-768 (JA__-__). Because intrastate
access involves “telecommunications” exchanged with a LEC within the
meaning of section 251(b)(5), the statute itself preempts states’ intrastate
access charge regimes, except as temporarily preserved by section 251(g).
See Order ¶¶761-762 (JA__-__).
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Finally, section 251(d)(3) cannot bar the preemptive force of the FCC’s
ICC reforms because that provision does not preserve state regulations that
“substantially prevent implementation of the requirements of this section and
the purposes of [sections 251 through 261],” 47 U.S.C. §251(d)(3)(C)
14
(emphasis added). As discussed above (at 1-5), the FCC determined in the
Order that a uniform national approach that brings all telecommunications
traffic exchanged by LECs within the section 251(b)(5) framework would
best implement “the objectives of section 251(b)(5) and other provisions of
the Act.” Order ¶767 (JA__). State-by-state departures from that approach
would “substantially prevent implementation” of a national framework. Id.
¶¶767, 793-794, 824 (JA__, __-__, __); cf. Verizon New England, Inc. v. Me.
Pub. Utils. Comm’n, 509 F.3d 1, 5, 12 (1st Cir. 2007) (holding that “state
agency may [not] require [ILECs to offer certain unbundled network]
elements that the FCC has delisted” as a matter of national policy).

Citing Pennsylvania’s regime of access charge regulation and the
state’s broadband deployment efforts by way of general example, petitioners
contend that there was “[n]o record evidence” that state regulation would
interfere with federal intercarrier compensation reforms. Br. 21-23.

14 Order ¶767 (JA__) (citing, e.g., Local Competition Order, 11 FCC Rcd
at 15550 ¶103).
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Regardless of the activities of any one state, there was substantial record
evidence supporting the FCC’s conclusion that “a uniform national
framework for the transition of intercarrier compensation to bill-and-keep”
was warranted to advance the legitimate goals of “accelerating the migration
to all-IP networks, facilitating IP-to-IP interconnection, and promoting
deployment of new broadband networks by providing certainty and
predictability to carriers and investors.” Order ¶790 (JA__).

In particular, the record established that intrastate access rates “vary
widely” – creating “incentives for arbitrage and pervasive competitive
distortions within the industry.” Order ¶791 & nn.1467-68 (JA__).
Moreover, the states that have initiated intrastate access reforms “have taken
a variety of approaches,” id. ¶794 & nn.1473-76 (JA__), while some state
commissions “lack authority to address intrastate access reform” at all, id.
¶794 & n.1478 (JA__). As a consequence, the FCC determined (with some
state support in the record) that “a state-by-state process would likely result in
significant variability and unpredictability of outcomes,” id. ¶794 & n.1479
(JA__), while a uniform nationwide approach would “ensure that the
intercarrier compensation modernization effort will continue apace without
unnecessary delays needed to harmonize disparate state actions,” id. ¶793
(JA__).
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B. The FCC Reasonably Concluded That It Has Regulatory

Authority To Adopt Bill-And-Keep As The Default For
Telecommunications Exchanged With A LEC.

1. The Bill-And-Keep Methodology Is Consistent With

Section 252(d)(2) Ratemaking Standards.

The Communications Act itself identifies bill-and-keep as a
permissible ratemaking methodology. Specifically, section 252(d)(2)(A)
states that a “just and reasonable” recovery under that section must include
“mutual and reciprocal recovery by each carrier of costs associated with …
transport and termination.” 47 U.S.C. §252(d)(2)(A). Crucially, section
252(d)(2)(B) then states that section 252(d)(2) “shall not be construed” to
“preclude” “arrangements … that waive mutual recovery (such as bill-and-
keep arrangements).” 47 U.S.C. §252(d)(2)(B). That should be the end of
the matter. Congress explicitly contemplated that the specific methodology
of bill-and-keep would be permissible, i.e., would not be precluded.
Moreover, beyond its reliance on that explicit statutory authorization of
bill-and-keep, the FCC reasonably concluded that such a methodology
ensures “just and reasonable” compensation and “mutual and reciprocal
recovery by each carrier of costs” associated with transport and termination,
as contemplated by section 252(d)(2)(A)(i). The FCC explained that the
statute “does not specify from whom each carrier may (or must) recover those
costs.” Order ¶775 (JA__). The FCC thus found that the statute permits it to
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establish a regime in which “each carrier will ‘recover’ its costs from its own
end users or from explicit support mechanisms such as the federal universal
service fund.” Id. Such recovery would be “reciprocal” within the meaning
of section 252(d)(2) because “a bill-and-keep framework” entitles carriers
exchanging traffic “to recover their costs through the same mechanism, i.e.,
through the rates they charge their own customers.” Id. n.1408 (JA__).
This reading of “reciprocal” also comports with standard dictionary
definitions. See Webster’s Third New Int’l Dictionary 1895 (2002) (defining
“reciprocal” to mean “corresponding to each other: being equivalent or
complementary”). Bill-and-keep meets this definition because, under such
arrangements, both carriers recover their costs from “equivalent” sources –
their own customers.
Petitioners nevertheless contend (Br. 36-37) that adopting bill-and-
keep as the default for all telecommunications exchanged with a LEC departs
without explanation from the FCC’s 1996 view that, in general, bill-and-keep
would be consistent with section 252(d)(2) only when rates are symmetrical
and the traffic in each direction is roughly in balance. See Local Competition
Order, 11 FCC Rcd at 16055 ¶1112. Although the FCC did depart from that
position in the Order, it acknowledged and fully explained the departure.
Order ¶¶756, 774 n.1405 (JA__, __).
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The prior position was predicated on the view, rejected in the Order,
“that the calling party’s network should bear all the costs of a call.” Order
¶756 (JA__). Given the FCC’s finding “that both the calling and called party
benefit from a call, the ‘direction’ of the traffic” – and thus its relative
balance – “is no longer relevant.” Id. “Additionally,” the FCC explained,
“bill-and-keep is most consistent with the models used for wireless and IP
networks … that have flourished and promoted innovation and investment
without any symmetry or balanced traffic.” Id.
Further supporting its rejection of a traffic symmetry requirement, the
FCC found that new technology makes the incremental cost of call
termination “very near $0.” Order ¶¶746 & n.1309, 752-753 (JA__, __-__).
Even in its earlier analysis of the issue, the FCC had recognized that slight
differences in traffic balance or relative costs could be outweighed by the
“administrative burdens and transaction costs” associated with calculating
ICC payments. Local Competition Order, 11 FCC Rcd at 16055 ¶1112.
Reprising that earlier theme, the FCC explained that “[e]xact identification of
efficient termination charges would be extremely complex,” and the “costs of
metering, billing, and contract enforcement that come with a non-zero
termination charge” would be significant. Order ¶753 (JA__). Given these
difficulties and the fact that the cost of termination was likely “very nearly
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zero,” the FCC determined that any “benefits obtained from imposing even a
very careful estimate of the efficient interconnection charge would be more
than offset by the considerable costs of doing so.” Id. In short, the FCC
acknowledged and fully justified its changed position on the application of
bill-and-keep. That is all the APA requires. See Qwest Corp. v. FCC, 689
F.3d 1214, 1224 (10th Cir. 2012).
Petitioners further assert (Br. 36) that, for traffic subject to section
252(d)(2), the statutory reference to “waive[r]” of mutual recovery means that
bill-and-keep may only be voluntarily adopted, and may not be imposed by
regulation. But the FCC reasonably determined that such a construction
would render Congress’s express endorsement of the bill-and-keep
ratemaking methodology “superfluous” because, under the statute, the section
252(d)(2) pricing standards apply only to terms imposed by arbitration, and
not to “voluntarily-negotiated agreements.” Order n.1407 (JA__).
In particular, section 252(c) provides that “[i]n resolving by arbitration
under subsection (b) of this section any open issues …, a State commission
shall – … (2) establish any rates … according to subsection (d).” 47 U.S.C.
§252(c) (emphasis added). By contrast, section 252(a)(1) provides that “an
incumbent local exchange carrier may negotiate and enter into a binding
agreement with the requesting telecommunications carrier or carriers without
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regard to the standards set forth in subsections (b) and (c) of section 251
[which include reciprocal compensation].” Id. §252(a)(1) (emphasis added);
see Qwest Corp. v. Pub. Utils. Comm’n of Colorado, 479 F.3d 1184, 1188
(10th Cir. 2007) (voluntary agreements may “contradict the specific statutory
requirements that an incumbent must follow”).
Accordingly, petitioners’ argument that the statutory reference to bill-
and-keep applies only to voluntary agreements has it exactly backwards. See
MCI Telecomms. Corp. v. U.S. West Commc’ns, 204 F.3d 1262, 1270-71 (9th
Cir. 2000) (upholding state arbitrator’s imposition of bill-and-keep under
section 252(d)(2)). At the very least, their argument does not show that the
FCC’s contrary understanding conflicts with the plain meaning of the statute
or is so unsupported as to be unreasonable, as would be necessary to prevail
under Chevron.
2. Section 201(b) Independently Authorizes Bill-And-

Keep As A Ratemaking Methodology For Interstate
Traffic.


Section 201(b) provides, with respect to communications common
carriers engaged in interstate or foreign communications by wire or radio, that
“[a]ll charges, practices, classifications, and regulations for and in connection
with such communication service, shall be just and reasonable.” 47 U.S.C.
§201(b). The “generality” of the terms “just and reasonable” “opens a rather
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large area for the free play of agency discretion.” Bell Atl. Tel. Cos. v. FCC,
79 F.3d 1195, 1202 (D.C. Cir. 1996). That discretion is cabined only by the
requirement that the FCC engage in reasoned decisionmaking and that it
produce a constitutional “end result.” Id. (citing FPC v. Hope Natural Gas
Co., 320 U.S. 591, 602 (1944)).
In the Order, the FCC determined that the adoption of bill-and-keep for
interstate traffic exchanged with a LEC was fully consistent with this flexible
ratemaking standard. Order ¶771 (JA__). In particular, because bill-and-
keep allows carriers to charge their own end users “just and reasonable” rates
for the transport and termination of interstate traffic, section 201(b)
authorized that ratemaking method. Id.
Petitioners contend (Br. 41) that, by phasing out ICC payments from
the originating carrier to the terminating carrier, bill-and-keep fails section
201(b)’s “just and reasonable” rate standard. This argument wrongly
assumes, however, that the only relevant source of compensation for purposes
of section 201(b) is the carrier with which the LEC exchanges traffic.
Nothing in section 201(b) compels that result – which is a relic of the calling-
party-network-pays regime that the FCC’s new bill-and-keep framework
replaces for local and access traffic. See Order ¶¶771, 775 n.1409 (JA__,
__). Under the new regime, carriers are free to recover their costs with just
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and reasonable charges to their end users. The FCC’s conclusion that bill-
and-keep comports with section 201(b) is reasonable and entitled to Chevron
15
deference. Rivera-Barrientos, 666 F.3d at 645.
Finally, this Court should reject petitioners’ contention (Br. 43-44) that
the FCC may not, under section 201(b), prescribe “just and reasonable” rates
for the exchange of interstate traffic without first conducting a rate
prescription proceeding under 47 U.S.C. §205. Section 205 provides
remedies that may be available when the FCC investigates the lawfulness of
an individual carrier’s rates, such as those filed under tariff pursuant to
section 203 of the Act. See 47 U.S.C. §§203, 205. Section 205 does not limit
the FCC’s authority to adopt general pricing methodologies using its section
201 ratemaking and rulemaking authority. See Global Crossing Telecomms.,
Inc. v. Metrophones Telecomms., Inc., 550 U.S. 45, 53 (2007) (providing that
FCC can implement section 201(b) either through section 205 rate
prescription or through general “rules that … insist upon certain carrier
practices”). Indeed, as noted in the Order (¶641 (JA__)), the agency
previously has capped rate levels through general notice-and-comment

15 Petitioners contend that, because section 332 incorporates the standards
of section 201, section 332 provides no authority to adopt bill-and-keep with
respect to wireless traffic. Br. 44. This contention fails for the same reasons
as petitioners’ section 201(b) argument.
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rulemaking proceedings, rather than through hearings on particular tariff
16
filings.
AT&T Co. v. FCC, 487 F.2d 865 (2d Cir. 1973), is not to the contrary.
See Br. 44. That case simply “held that the Commission may not require a
carrier to seek permission to file a tariff effecting a rate increase, but instead
must process such a tariff in accordance with the procedures set forth in
sections 203 to 205 of the Act.” Order n.1390 (JA__). “Nothing in that
decision calls into question” the FCC’s “authority to adopt rules to define
what constitutes a just and reasonable rate for purposes of section 201.” Id.
In any event, even if section 205 were applicable to the ratemaking rules
adopted in the Order, the notice-and-comment procedures the FCC employed
here fully satisfied the hearing requirements of that provision. See AT&T v.
FCC, 572 F.2d 17, 22 (2d Cir. 1978) (holding that notice-and-comment
provides a “full opportunity to be heard” sufficient under section 205); Order

16 See, e.g., Access Charge Reform, 12 FCC Rcd 15982, 16012-18 ¶¶75-87
(1997) (prescribing new limits on subscriber line charges through general
rulemaking procedures), aff’d, Sw. Bell Tel. Co. v. FCC, 153 F.3d 523 (8th
Cir. 1998); Access Charge Reform, 15 FCC Rcd 12962, 12984 ¶58, 12988-
991 ¶¶70-75 (2000) (prescribing revised rate ceilings through general
rulemaking procedures), aff’d in pertinent part, TOPUC v. FCC, 265 F.3d
313 (5th Cir. 2001).
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¶641 (JA__) (“[A] formal evidentiary hearing is not required under section
17
205.”).
3. The FCC’s Bill-And-Keep Framework Does Not

Impermissibly Intrude On State Authority To
Establish Actual Rates.

Petitioners argue that bill-and-keep is a rate (as opposed to a
methodology), and that sections 252(c)(2) and 252(d)(2) permit only a state
entity, not the FCC, to impose such a rate. In this regard, petitioners
analogize bill-and-keep to the default proxies that the FCC established in
1996 and that the Eighth Circuit struck down in Iowa Utils. Bd. v. FCC, 219
F.3d 744, 757 (8th Cir. 2000).
That analogy does not withstand scrutiny. The FCC considered the
Eight Circuit precedent but reasonably determined that, unlike the default
proxies – which established the full and specific amount of compensation that
carriers could receive – its bill-and-keep framework does not impermissibly
“intrude[] on the states’ right to set the actual rates pursuant to §252(c)(2).”
Order ¶773 (JA__) (quoting Iowa Utils. Bd., 219 F.3d at 757). In this regard,

17 Petitioners’ undeveloped two-sentence claim (Br. 45) that the FCC
unlawfully amended its Part 36 rules without a Joint Board referral overlaps
claims presented at greater length in the petitioners’ Additional Universal
Service Fund Issues Brief. It is addressed in our response to that brief. See
FCC Additional USF Issues Brief, Argument II.
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the FCC’s action was lawful both as to the interim transitional rate caps set
by the Order and as to the ultimate bill-and-keep framework.
Although the FCC’s interim regime caps some of the rates states may
establish for intercarrier compensation, that is so only because the agency
sensibly decided to transition to bill-and-keep gradually, rather than adopting
a “flash cut” that could “entail significant market disruption.” Order ¶¶809-
810 (JA__-__). The FCC has well-established discretion to exercise statutory
powers flexibly when moving from one regulatory regime to another. See
NARUC v. FCC, 737 F.2d 1095, 1135-36 (D.C. Cir. 1984). Thus, although
the FCC could, under the statute, have “mov[ed] to bill-and-keep
immediately,” Order ¶809 (JA__), its decision to move gradually was
reasonable and is entitled to “substantial deference,” id. (quoting Rural
Cellular Ass’n v. FCC, 588 F.3d 1095, 1106 (D.C. Cir. 2009)).
Moreover, the effect of the intercarrier rate caps the FCC imposed is
not to prescribe the precise amount carriers may charge for section 251(b)(5)
traffic, but to control the source of a carrier’s section 251(b)(5) revenues – a
quintessential methodological issue. Specifically, the caps do not determine
how much carriers may collect for transporting and terminating traffic; they
simply require that any further recovery come from end users, not other
carriers. Significantly, with respect to intrastate traffic, states retain authority
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“to regulate the rates that the carriers will charge their end users to recover
the costs of transport and termination.” Order ¶776 (JA__). Accordingly,
state commissions ultimately have discretion and responsibility (subject to
federal standards) in determining the aggregate amount carriers may recover
for section 251(b)(5) traffic.
Furthermore, state commissions retain additional “important
responsibilities in the implementation of a bill-and-keep framework,” such as
determining the point on the terminating carrier’s network – known as the
“edge” – to which a carrier must deliver traffic “to avail itself of bill-and-
keep.” Order ¶776 (JA__). This determination has significant implications
for intercarrier compensation. The FCC explained that, “[d]epending upon
how the ‘edge’ is defined … [intercarrier] payments still could change
hands.” Id. Because states will make that determination in arbitration
proceedings, the FCC’s conclusion is consistent with the Supreme Court’s
statement that the states “determin[e] the concrete result in particular
circumstances.” Id. (quoting AT&T, 525 U.S. at 384).
In any event, the FCC also concluded that the rate-versus-methodology
limitation of sections 252(c) and (d) does not control the agency’s authority
with respect to “most of the traffic that is the focus of this Order.” Order
¶774 (JA__). First, the distinction between rate and methodology has no
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bearing on the interstate and wireless traffic for which the FCC has
independent regulatory authority under sections 201(b) and 332. See id.
¶¶771, 779 (JA__, __) (recognizing independent authority under those
sections).
Moreover, even where section 251(b)(5) provides the FCC’s sole
source of authority, the distinction has limited significance. Section 252
applies only to arbitration proceedings involving “traffic exchanged with an
ILEC,” the former monopoly provider in each local area. Id. ¶774 (JA__)
(emphasis added); see 47 U.S.C. §252(b)(1) (providing that an ILEC’s
receipt of “a request for negotiation” triggers application of section 252
procedures); id. §252(c)(2) (providing that in resolving arbitrations “under
subsection (b),” state commissions shall “establish” rates “according to
subsection (d)” (emphasis added)); id. §252(d)(2) (establishing ratemaking
standard “[f]or the purposes of compliance by an incumbent local exchange
carrier with section 251(b)(5)” (emphasis added)). Thus, traffic exchanged
between CLECs and IXCs, between two CLECs, and between CLECs and
wireless providers are all “categorically beyond [the] scope” of the pricing
provisions of section 252(c) and (d). See Order ¶774 (JA__).
Finally, the Order explains that even some ILEC traffic – specifically,
that exchanged between ILECs and IXCs – is excluded from the rate-versus-
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methodology limitation. The section 252(d) pricing standard applies, by its
terms, only where the traffic “originate[s] on the network facilities of the
other carrier.” 47 U.S.C. §252(d)(2)(A)(i). IXCs, however, “typically do not
originate (or terminate) calls on their own network facilities but instead
transmit calls that originate and terminate on distant LECs.” Order ¶774
(JA__). Accordingly, the bill-and-keep framework the FCC adopted does
“not implicate any question of the states’ authority under section 252(c) or (d)
or the Eighth Circuit’s interpretation of those provisions,” even as to most
traffic exchanged between ILECs and IXCs. Id.

II.

THE RECOVERY MECHANISM ADOPTED IN THE
ORDER

IS A REASONABLE INTERIM MEASURE TO
OFFSET REDUCED INTERCARRIER COMPENSATION
REVENUES DURING THE TRANSITION TO BILL-AND-
KEEP.

The Order establishes a multi-year transition to bill-and-keep that
initially caps existing intercarrier rates for terminating access and local traffic
at existing levels, and then gradually reduces those rates each year until they
reach bill-and-keep (in six years for price cap carriers, and nine years for rate-
of-return carriers). See Order ¶801 & Figure 9 (JA__, __). The FCC sought
further comment on how to transition to bill-and-keep for originating access
and other rate elements not specifically affected by the Order. Id. ¶¶1297-
1305 (JA__-__). In the meantime, the Order caps all originating access
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charges for price cap carriers and interstate originating switched access
charges for rate-of-return carriers. Id. ¶¶739, 800-801 & Figure 9 (JA__, __-
__).
To mitigate the effect of its reforms on incumbent LECs’ revenues, the
FCC created a “recovery mechanism” designed to enable those LECs to
recover some of the ICC revenues that are reduced during the transition to
18
bill-and-keep. Order ¶¶847-853 (JA__-__). For rate-of-return LECs, the
Order establishes a formula that determines eligible revenues on the basis of
an initial baseline, consisting of (a) the carrier’s 2011 revenue requirement for
the interstate access elements subject to reform, (b) the carrier’s Fiscal Year
2011 revenues from the intrastate access elements subject to reform, plus (c)
the carrier’s net reciprocal compensation revenues for Fiscal Year 2011
(generated under the FCC’s prior reciprocal compensation rules governing
local traffic). See id. ¶¶851, 892, 899 (JA__, __, __). Each rate-of-return
ILEC is entitled to recover that amount – which is reduced by 5 percent each
year. See id. ¶¶851, 899 (JA__, __).
This revenue recovery comes from three sources. First, carriers receive
revenues from their remaining ICC charges, some of which are not currently

18 Petitioners, which (on this issue) consist mainly of rural rate-of-return
carriers, do not challenge the recovery mechanism as it applies to price cap
carriers. See Br. 52-57.
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19
being transitioned to bill-and-keep. Order ¶896 (JA__). Second, carriers
may recover revenues by assessing a new, federally tariffed Access Recovery
Charge (“ARC”) on their end users (subject to certain limitations). See id.
¶¶896, 906-916 (JA__, __-__). Finally, if the remaining ICC charges and the
ARC do not produce all of the revenues eligible for recovery, carriers may
recover the remainder through direct subsidies from the Connect America
Fund (“CAF”), which was created as part of the Order’s universal service
reforms. See id. ¶¶896, 917-919 (JA__, __-__).
The FCC predicted that this recovery mechanism “will be more than
sufficient to provide carriers reasonable recovery for regulated services.”
Order ¶924 (JA__). Nevertheless, as an added measure of protection, the
FCC provided for a “Total Cost and Earnings Review” process “to allow
individual carriers to demonstrate that ... additional recovery is needed to
prevent a taking.” Id.
Petitioners challenge the bill-and-keep transition and the recovery
mechanism as arbitrary and capricious on several grounds. First, citing Smith
v. Illinois Bell Tel. Co., 282 U.S. 133 (1930), petitioners contend that the
FCC arbitrarily failed to apportion the costs of the services subject to reform
between the state and federal jurisdictions. Br. 49-50. In Smith, the Illinois

19 See Order ¶801 (JA__) (outlining transition schedule).
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regulatory agency had set Chicago telephone rates based on the total cost of
the telephone company’s property in the city, even though that property was
used to provide not just intrastate service, but also interstate service. See 282
U.S. at 146-47. The statutory scheme for telephone regulation then in place,
however, granted the federal Interstate Commerce Commission exclusive
jurisdiction over interstate communications and the various state
commissions jurisdiction only over intrastate communications. See id. at
148-49. The Court ruled that, although “extreme nicety is not required” in
separating regulated costs between jurisdictions, the Illinois agency’s
decision to set local rates on the basis of the total (interstate and intrastate)
cost of the carrier’s property improperly “ignore[d] altogether the actual uses
to which property is put.” Id. at 150 (emphasis added). The Court thus set
aside the rate order, finding, on those facts, that “separation of the intrastate
and interstate property, revenues and expenses of the company” was
“essential to the appropriate recognition of the competent governmental
authority in each field of regulation.” Id. at 148.
Smith is inapplicable here. First, while the statutory scheme in that
case gave the Interstate Commerce Commission exclusive jurisdiction over
interstate communications, sections 251(b)(5) and 201(b) give the FCC
jurisdiction over all of the traffic subject to reform – both interstate and
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intrastate. See AT&T, 525 U.S. at 381 n.7; see also Argument I.A., above.
Moreover, although the Order asserts jurisdiction over some intrastate access
traffic that previously was regulated by the states, states are not left with
responsibility for recovering intrastate access revenues that are reduced by
ICC reform. Order ¶795 (JA__). Rather, the Order’s federal recovery
mechanism “provide[s] carriers with recovery for reductions to eligible
interstate and intrastate revenue.” Id.; see id. ¶¶847-920 (JA__-__). Thus,
far from “ignor[ing] altogether,” Smith, 282 U.S. at 150, the use to which
carrier property is put, that mechanism takes into account the previously
separated costs of section 251(b)(5) traffic by starting the transition to bill-
and-keep with existing interstate and intrastate rates and determining eligible
revenue recovery on the basis of a formula that is tied initially to existing
interstate and intrastate revenues, see Order ¶892 (JA__). And the additional
safeguard of the Total Cost and Earnings Review process – which includes a
separations study requirement – permits carriers to make a comprehensive
cost showing to the FCC that additional recovery is needed. See id. ¶¶924,
932 (JA__, __). Accordingly, no formal reapportionment was necessary, at
this time, to ensure that only “the competent governmental authority”
exercises jurisdiction. Smith, 282 U.S. at 148.
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Petitioners’ remaining arbitrary-and-capricious claims – apparently
intended to show that the recovery mechanism denies carriers an opportunity
to recover their costs – consist largely of undeveloped references to decades-
old FCC decisions addressing past regulatory policies. See generally Br. 51-
56 (citing various FCC access charge orders from 1986, 1990, 1998, 2000,
and 2001). Nothing in the cited references suggests that the fully articulated
reforms adopted in the Order are unreasonable, especially in light of
intervening statutory and technological changes, and the deference due to
transitional mechanisms.
In this regard, the FCC’s recovery mechanism, by design, does not
“provide 100 percent revenue neutrality relative to today’s revenues.” Order
¶881 (JA__). The agency nevertheless reasonably predicted that it would be
“more than sufficient to provide carriers reasonable recovery for regulated
services.” Id. ¶924 (JA___).
Numerous factors supported that conclusion. First, an annual 5 percent
decline in revenues was likely an improvement over recent trends. The FCC
observed that interstate access revenue requirements for rate-of-return carriers
recently had declined on average by 3 percent per year, and projections in the
record suggested that that trend would continue for the next five years. Order
¶892 (JA__). At the same time, intrastate access revenues for rate-of-return
50

Appellate Case: 11-9900 Document: 01019014097 Date Filed: 03/06/2013 Page: 61
20
carriers had been declining by about 10 percent per year. Id. ¶893 (JA__).
The FCC determined that a weighted average of these interstate and intrastate
revenue declines “could justify a possible Baseline reduction of
approximately seven percent annually.” Id. ¶894 (JA__). The selection of a
5 percent annual reduction for the recovery mechanism was thus “a
conservative approach.” Id. ¶¶894, 900-901 (JA__, __-__). The chart below
illustrates rate-of-return LECs’ projected revenue losses under the status quo.

20 The downward trends in interstate and intrastate access revenues had
resulted largely from the combined effects of lost lines and minutes of use to
competitors (e.g., wireless and VoIP providers) and decreasing switching
costs. See Order ¶¶885-886, 892-894 (JA__-__, __-__).
51

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21
Id. ¶893, Figure 11 (JA__).
Rate of return ICC projected revenue under status quo
ICC recip comp net (5% decline)
$, in billions
ICC intrastate revenue (10% decline)
1.3
1.26
ICC interstate revenue (3% decline)
1.2
1.18
LSS revenue (2% decline)
1.10
1.1
1.03
1.0
0.97
0.91
0.9
0.85
0.80
0.8
0.75
0.7
0.6
0.5
0.4
0.3
0.2
0.1
0.0
2009
2010
2011
2012
2013
2014
2015
2016
2017
In addition, the FCC had sound reasons to believe that existing access
charge rates were above levels required for efficient operation. Because the
existing regime permitted rate-of-return ILECs to increase their rates to offset
declining minutes of use, such carriers “had insufficient incentive to reduce
costs.” Order ¶892 (JA__). Those incentives are reversed under the new
recovery mechanism, because “carriers that realize … efficiencies will not
experience a resulting reduction in support” (beyond the 5 percent annual

21 “LSS” in the chart refers to Local Switching Support explicit subsidies.
See Order ¶892 (JA__).
52

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reduction to the recovery baseline), but rather can increase their profits. Id.
22
¶902 (JA__).
Additionally, although the Order expressly “takes interstate rate-of-
return carriers off of rate-of-return based recovery … for interstate switched
access” rate elements subject to reform, Order ¶900 (JA__), the FCC was
well aware that the existing interstate switched access revenue requirement
included a potentially excessive authorized rate of return of 11.25 percent.
See Order n.1736 (JA__). The FCC tentatively found that “the current rate of
return of 11.25 percent is no longer consistent with the Act and today’s
financial conditions.” Id. ¶638 (JA__). The existing rate-of-return
prescription (set in 1990) was more than two decades old, and “fundamental
changes in the cost of debt and equity” had occurred in the intervening years.
See id. ¶1046 (JA__). Accordingly, even rate-of-return carrier associations
had, as part of a broader proposal, suggested a reduction in the prescribed rate

22 Petitioners contend that the FCC’s concern with improving rate-of-return
ILECs’ cost-cutting incentives conflicts with its decision in 1990 to make the
incentive-based price cap regime optional for smaller LECs. Br. 54 (citing
Policy and Rules Concerning Rates for Dominant Carriers, 5 FCC Rcd 6786,
6799 (1990)). That claim is misdirected. The FCC simply decided there that
the record failed to establish that small carriers could afford to reduce their
rates as rapidly as the price cap formula required large carriers to do. 5 FCC
Rcd at 6799 ¶¶103-104. Here, the FCC has separately analyzed the
circumstances of price cap and rate-of-return carriers and adopted a less
demanding schedule of revenue reductions for rate-of-return carriers. See
Order
¶¶851, 867-904 (JA__, __-__).
53

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of return from 11.25 percent to 10 percent, and the state members of the
Federal-State Joint Board had proposed a greater reduction to 8.5 percent.
See id. The FCC’s record-based concern that the existing rate-of-return
prescription was too high supports its predictive judgment that the transitional
recovery mechanism would give carriers a reasonable opportunity to recover
their costs. See id. ¶¶924, 1046 (JA__, __); see also Franklin Sav. Ass’n v.
Dir., Office of Thrift Supervision, 934 F.2d 1137, 1146 (10th Cir. 1991)
(“[R]eviewing courts should be particularly deferential when they are
reviewing an agency’s predictive judgments, especially those within the
agency’s field of discretion and expertise.”).
Finally, the Total Cost and Earnings Review process the FCC
established, which “allow[s] individual carriers to demonstrate that …
additional recovery is needed to prevent a taking,” eliminates any remaining
risk that the recovery mechanism arbitrarily denies carriers an opportunity to
recover their costs. Order ¶924 (JA__); see Time Warner Entm’t Co. v. FCC,
56 F.3d 151, 169 (D.C. Cir. 1995) (upholding as reasonable FCC rules that
required across-the-board 17 percent cable rate reductions, but provided a
cost-of-service “safety valve” for cable systems for which the “reduction
would result in unreasonably low rates”).
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III. PETITIONERS’ CHALLENGE TO THE FCC’S

TENTATIVE PREDICTION THAT STATES LIKELY
COULD NOT SUSPEND OR MODIFY THE ORDER’

S

BILL-AND-KEEP FRAMEWORK IS UNRIPE AND, IN
ANY EVENT, UNSOUND.

Section 251(f)(2) provides that certain small LECs “may petition a
State commission for a suspension or modification” of the requirements of
section 251(b) or (c), and that the “State commission shall grant such
petition” if it determines that such suspension or modification
(A) is necessary – (i) to avoid a significant adverse economic
impact on users of telecommunications services generally; (ii) to
avoid imposing a requirement that is unduly economically
burdensome; or (iii) to avoid imposing a requirement that is
technically infeasible; and (B) is consistent with the public
interest, convenience, and necessity.
47 U.S.C. §251(f)(2). Although this provision “entrusts state commissions
with the job” of acting on section 251(f)(2) petitions, the FCC is authorized to
issue “rules to guide the state commission judgments” on such matters.
AT&T, 525 U.S. at 385.
The FCC nevertheless declined “at this time” to adopt “specific rules
regarding section 251(f)(2).” Order ¶824 (JA__). The agency observed,
though, that “suspensions or modifications of the bill-and-keep methodology
[adopted in the Order] would, among other things, re-introduce regulatory
uncertainty, shift the costs of providing service to a LEC’s competitors and
the competitor’s customers, increase transaction costs for terminating calls,
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and undermine the efficiencies gained from adopting a uniform national
framework.” Id. Accordingly, although the FCC did not preempt states, it
suggested that it was “highly unlikely that any attempt by a state” to grant a
suspension or modification petition “would be ‘consistent with the public
interest, convenience and necessity’ as required by section 251(f)(2)(B).” Id.
Petitioners contend that the FCC’s discussion of section 251(f)(2)(B)
“unlawfully circumscribes” carrier rights under that provision and “infringes
on State jurisdiction to address lawful suspension and modification requests.”
Br. 45. This claim is unripe and, in any event, lacks merit.
In USTA, 359 F.3d 554, the D.C. Circuit held unripe a closely
analogous claim. The case arose out of a rulemaking in which the FCC had
determined that incumbent LECs need not unbundle certain network elements
for requesting carriers pursuant to section 251(c)(3) and (d)(2). The FCC had
also “predict[ed] that state unbundling requirements for elements that the
FCC has determined need not be unbundled under §251(d)(2) are ‘unlikely’
to be found consistent with the Act.” USTA, 359 F.3d at 594 (emphasis
added) (quoting Review of the Section 251 Unbundling Obligations of
Incumbent Local Exchange Carriers, 18 FCC Rcd 16978, 17101 ¶195
(2003)). On judicial review, the petitioners claimed that the FCC had
unlawfully preempted state unbundling authority with respect to the network
56

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elements at issue. The court of appeals, however, dismissed the claim
because “[t]he general prediction voiced in [the order] [did] not constitute
final agency action, as the Commission ha[d] not taken any view on any
attempted state unbundling order.” Id. “Besides,” the court explained, “the
state petitioners ha[d] not – and probably could not [have] – identif[ied] any
substantial hardship that they would suffer by deferring judicial review of the
preemption issues until the FCC actually issue[d] a ruling that a specific state
unbundling requirement [was] preempted.” Id.
The same result should obtain here. As in USTA, the FCC has not
taken final action. Rather, the FCC has merely made “predictions” about
whether state modification grants would be consistent with the statute. Also
as in USTA, petitioners here do not identify any substantial hardship they
might suffer by deferring judicial review unless and until the FCC actually
rules with respect to a state’s action under section 251(f)(2). See Friends of
Marolt Park v. U.S. Dep’t of Transp., 382 F.3d 1088, 1093-94 (10th Cir.
2004) (ordinarily, the ripeness of an agency order “depends on whether the
plaintiffs challenge a final agency action,” but “[e]ven where an agency
action is considered final, … a claim may not be ripe if there is no direct,
immediate effect on plaintiffs”).
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Petitioners’ challenge to the merits of the FCC’s section 251(f)(2)(B)
discussion is mistaken, in any event. First, contrary to petitioners’ claim (Br.
48), the FCC’s section 251(f)(2) discussion is wholly unlike the rule that the
Eighth Circuit set aside in Iowa Utils. Bd. v. FCC, 219 F.3d 744. The Eighth
Circuit interpreted that rule to remove two of three statutory prerequisites for
terminating a rural ILEC’s exemption (under 47 U.S.C. §251(f)(1)) from
section 251(c) obligations. Id. at 760. The section 251(f)(2)(B) discussion at
issue here does not remove any statutory suspension or modification criteria.
Moreover, the FCC’s public interest discussion was reasonable. The
FCC provided a detailed explanation of the need to replace the broken legacy
system of intercarrier compensation with a bill-and-keep framework. See
generally Order ¶¶741-759, 788-797, 824 (JA__-__, __-__, __). The FCC’s
findings justified its prediction that the grant of a section 251(f)(2) petition
would likely fail the “public interest, convenience and necessity” prong of
section 251(f)(2)(B).

IV.

PETITIONERS’ ADMINISTRATIVE PROCESS AND
CONSTITUTIONAL CLAIMS FAIL.

A. The Administrative Record Was Developed Consistent

With The APA, The FCC’s Ex Parte

Rules, And Notions
Of Fundamental Fairness.

In the administrative proceedings culminating in the Order, the FCC
sought comment on the “subjects and issues involved” in the rulemaking, 5
58

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23
U.S.C. §553(b)(3), through the issuance of four formal notices. Those
notices generated more than 650 formal comments and reply comments from
approximately 300 parties, including petitioners, and thousands more
24
informal comments. In addition, the FCC held “over 400 meetings with a
broad cross-section of industry and consumer advocates,” held “three open,
public workshops, and engaged with other federal, state, Tribal, and local
officials throughout the process.” Order ¶12 (JA__). As permitted by its ex
25
parte rules, the FCC also received numerous lawful presentations from

23 2011 NPRM, 26 FCC Rcd 4554 (JA__); Mobility Fund NPRM, 25 FCC
Rcd 14716 (2010) (JA__); Mobility Fund Tribal Public Notice, 26 FCC Rcd
5997 (WTB 2011) (JA__); August 3, 2011, Public Notice, 26 FCC Rcd 11112
(WCB 2011) (JA__).
24 See Order Apps. J, K, L, M (JA__-__).
25 See EchoStar Satellite LLC v. FCC, 457 F.3d 31, 39 (D.C. Cir. 2006).
59

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26
stakeholders, including petitioners. See Order ¶12 (JA__) (describing the
“enormous interest in and public participation in” the reform process).
Petitioners nevertheless claim that the FCC violated the rulemaking
provisions of the APA and their due process rights “by relying in part on
unchallenged ex parte filings submitted so late in the decision-making
process” that petitioners allegedly were denied “a meaningful opportunity to

be heard.” Br. 58. This claim is without merit.
The APA requires, in informal notice-and-comment rulemaking
proceedings, that the agency “give interested persons an opportunity to
participate … through submission of written data, views, or arguments with
or without opportunity for oral presentation.” Phillips Petroleum Co. v. EPA,

26 See 47 C.F.R. §1.1206 (providing permit-but-disclose standards for
informal rulemaking proceedings). Under these ex parte rules, parties must
place copies of all written ex parte presentations in the record, and must
expeditiously follow up oral presentations with written summaries of “all data
presented and arguments made” during the presentations. Id. §1.1206(b)(1)
& (b)(2)(iii). Ex parte filings, including written summaries of oral
presentations, must be submitted to the FCC Secretary and are included in the
administrative record for public inspection. See id. §1.1206(b)(2)(i); see also
id.
§1.1206(b)(2)(ii) (establishing special procedures for submissions
containing confidential information). The rules also establish a period of
repose (referred to as the “sunshine period”), which runs from about a week
before the public meeting at which the FCC votes on the rulemaking order
until the text of the order is released. See id. §1.1203(b). During that period,
ex parte presentations are generally prohibited, see id. §1.1203(a), although
the rules permit expeditious written replies during the sunshine period to
filings made on the eve of the period of repose, see id. §1.1206(b)(2)(iv).
60

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803 F.2d 545, 559 (10th Cir. 1986) (quoting 5 U.S.C. §553(c)). That
“opportunity to participate is all that the APA requires.” Id.
Due process likewise “generally requires a ‘meaningful opportunity’ to
be heard” before an agency takes action that may adversely affect a party’s
property interests. Blumenthal v. FERC, 613 F.3d 1142, 1145 (D.C. Cir.
2010) (citation omitted). Nevertheless, “informal contacts between agencies
and the public are the ‘bread and butter’ of the process of administration and
are completely appropriate so long as they do not frustrate judicial review or
raise serious questions of fairness.” EchoStar, 457 F.3d at 39 (quoting Home
Box Office, Inc. v. FCC, 567 F.2d 9, 57 (D.C. Cir. 1977)).
Petitioners have not come close to establishing that the FCC breached
these standards. Although they complain of various filings pursuant to the
FCC’s ex parte rules in the days and weeks prior to the Order’s adoption,
they identify only one – a two-page filing by Verizon that urged the FCC to
allow the ARC to be recovered “at the holding company level.” Br. 59
(citing Letter from Chris Miller, Verizon, to FCC Secretary, at 1 (Oct. 20,
2011) (JA__)). That letter, however, merely elaborated briefly on aspects of
the ARC that had already been discussed in the “ABC Plan” submitted by a
group of price cap LECs. See Order ¶910 & n.1791 (JA__). That Plan had
been a prominent part of the record for over two-and-a-half months at the
61

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time of Verizon’s filing and was the subject of a separate request for public
27
comment by the agency. Petitioners were not denied a reasonable
opportunity to participate or even to address the specific plan they identify.
Petitioners also complain generally about unidentified ex parte
presentations submitted by AT&T and Verizon in the days immediately
before the “sunshine period” (see n.26, above) commenced on October 21,
2011. Br. 60. But every administrative process must have an end point, and
the FCC’s rules – including both the sunshine period deadline and the
opportunity provided for expeditious response to filings made on the eve of
that deadline (see 47 C.F.R. §§1.1203(b) & 1.1206(b)(2)(iv)) – are designed
to enable both the FCC and the public to evaluate filings before the agency
acts. Indeed, petitioners actively employed those rules to exercise the
“opportunity to participate” that the APA requires. Phillips Petroleum, 803
28
F.2d at 559.

27 Letter from Robert W. Quinn, et al., to FCC Secretary (July 29, 2011)
(JA__) (presenting ABC Plan); August 3, 2011, Public Notice, 26 FCC Rcd
11112 (WCB 2011) (JA__) (soliciting public comment on the ABC Plan).
28 Notably, the Order addresses October 2011 ex parte letters submitted by
the petitioners, as well as Verizon and AT&T submissions. See, e.g., Order
n.2224 (JA__) (citing petitioner NASUCA October 2011 ex parte), id. n.1506
(JA__) (citing petitioner Gila River Telecommunications Inc. October 2011
ex parte).
62

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In any event, petitioners’ APA and due process claims fail under the
“rule of prejudicial error.” 5 U.S.C. §706(2)(F). Even where a procedural
error exists (and there was no such error here), a mistake by the agency “does
not require reversal unless a [petitioner] demonstrates prejudice resulting
from the error.” Hillsdale Envt’l Loss Prevention, Inc. v. U.S. Army Corps of
Eng’rs, 702 F.3d 1156, 1165 (10th Cir. 2012). Specifically, it is “incumbent
upon a petitioner objecting to an agency’s late submission of documents to
indicate with ‘reasonable specificity’ what portions of the documents it
objects to and how it might have responded if given the opportunity.” Air
Transport Ass’n v. CAB, 732 F.2d 219, 224 n.11 (D.C. Cir. 1984) (citation
omitted). The petitioner must also demonstrate that the agency actually relied
upon the late-filed documents and that they were “critical to the formulation
of the rule.” American Mining Congress v. Marshall, 671 F.2d 1251, 1261
(10th Cir. 1982); accord New Mexico v. EPA, 114 F.3d 290, 295 (D.C. Cir.
1997) (explaining that late-filed comments are not problematic if the agency
“can justify its rules entirely by reference to” timely filed documents in the
29
record (citation omitted)).

29 If, as here, the agency’s procedures permit aggrieved parties to contest
late-filed pleadings through petitions for administrative reconsideration, the
availability of such a process also may render harmless any procedural
63

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Petitioners make no effort to satisfy any of these requirements. They
offer no explanation (and cannot properly provide one only on reply) of how
the cited Verizon letter – or any of the other, wholly unidentified filings to
which they object – harmed them.

B. The Order

Poses No Unconstitutional Burden On State

Sovereignty.

Petitioners claim that the Order unconstitutionally undermines state
sovereignty by imposing on states a “regulatory ‘gun to the head.’” Br. 62-63
(quoting Nat’l Federation of Ind. Businesses v. Sebelius, 132 S. Ct. 2566,
2604 (2012)). Although their brief cites no specific section of the Order,
petitioners presumably intend to challenge the FCC’s decision to limit federal
high-cost universal service support to carriers where end-user rates “do not
meet a specified local rate floor,” see Order ¶¶235, 237 (JA__, __), and the
agency’s decision to “permit carriers to determine at the holding company
level how Eligible Recovery will be allocated among their incumbent LECs’
ARCs,” id. ¶910 (JA__). The FCC adopted the “rate floor” rule to ensure that
the universal service fund did not “subsidize[] artificially low local rates in
rural areas.” Id. ¶235 (JA__). The FCC adopted the “holding company” rule,
among other things, to enable carriers to “spread [eligible recovery through

irregularity that allegedly exists. See Blumenthal, 613 F.3d at 1146; NARUC,
737 F.2d at 1121.
64

Appellate Case: 11-9900 Document: 01019014097 Date Filed: 03/06/2013 Page: 75
the ARC] among a broader set of customers, minimizing the increase
30
experienced by any one customer.” Id. ¶910 (JA__).
Petitioners’ Sebelius arguments are unsound. Sebelius dealt with the
state-operated and partially state-funded Medicaid program. It did not, as do
the challenged portions of the Order, deal with subsidies to and regulation of
private parties. Thus, in setting aside a provision of the Affordable Care Act
(“ACA”) that withdrew all federal Medicaid funding to states if they declined
to participate in the statute’s Medicaid expansion, the Court relied heavily on
precedent that “the Framers explicitly chose a Constitution that confers upon
Congress the power to regulate individuals, not States.” Printz v. United
States, 521 U.S. 898, 920 (1997) (quoting New York v. United States, 505
U.S. 144, 166 (1992)); see Sebelius, 132 S. Ct. at 2601-02 (citing Printz and

30 Separate challenges to the FCC’s statutory (as opposed to constitutional)
authority to adopt both rules are presented in other petitioners’ briefs. As
demonstrated in our separate briefs in response to those filings, those
challenges are unavailing. See FCC Principal USF Brief, Argument V.A.
(addressing the rate floor condition on federal universal service support);
FCC Response to NASUCA Brief, Argument III (addressing a challenge to
the ARC holding company allocation).
65

Appellate Case: 11-9900 Document: 01019014097 Date Filed: 03/06/2013 Page: 76
New York). Petitioners point to nothing in the Order that violates that
31
principle.

CONCLUSION

For the foregoing reasons, the petitions for review should be dismissed
in part and otherwise denied.

31 Even if Sebelius somehow applied to the challenged reforms, petitioners
make no showing of coercion remotely like that imposed on states by the
ACA. Cf. 132 S. Ct. at 2604-05 (because “Medicaid spending accounts for
over 20 percent of the average State’s total budget, with federal funds
covering 50 to 83 percent of those costs,” the ACA’s threatened withdrawal
of all federal Medicaid funding constituted “economic dragooning that leaves
the States with no real option but to acquiesce”) (emphasis added).
66

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


ROBERT B. NICHOLSON
PETER KARANJIA
ROBERT J. WIGGERS
DEPUTY GENERAL COUNSEL
ATTORNEYS


RICHARD K. WELCH
UNITED STATES
DEPUTY ASSOCIATE GENERAL
DEPARTMENT OF JUSTICE
COUNSEL
WASHINGTON, D.C. 20530


/s/ Laurence N. Bourne

LAURENCE N. BOURNE
JAMES M. CARR
MAUREEN K. FLOOD
COUNSEL

FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
March 6, 2013
67

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CERTIFICATE OF COMPLIANCE

Certificate of Compliance With Type-Volume Limitations, Typeface

Requirements, Type Style Requirements, Privacy Redaction

Requirements, and Virus Scan


1.
This brief complies with the type-volume limitation of the Second Briefing
Order. It does not exceed 15% of the size of the brief to which it is responding. The
Joint Intercarrier Compensation Principal Brief of Petitioners was certified to be
11,805 words in length. Therefore, the FCC may file a response brief up to 13,575
words in length. This brief contains 13,507 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii). If the words in the chart on p.52
were included, the total would be 13,571 words.

2.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and 10th Cir. R. 32(a) and the type style requirements of Fed. R. App. P.
32(a)(6) because this filing has been prepared in a proportionally spaced typeface
using Microsoft Word 2010 in 14-point Times New Roman font.

3.
All required privacy redactions have been made.

4.
This brief was scanned for viruses with Symantec Endpoint Protection,
version 11.0.7200.1147, updated on March 6, 2013, and according to the program
is free of viruses.




/s/ Laurence N. Bourne
Laurence N. Bourne
Counsel


March 6, 2013









Appellate Case: 11-9900 Document: 01019014097 Date Filed: 03/06/2013 Page: 79

CERTIFICATE OF SERVICE



I hereby certify that on March 6, 2013, I caused the foregoing Federal
Respondents’ Uncited Response to the Joint Intercarrier Compensation Principal
Brief to be filed by delivering a copy to the Court via e-mail at
FCC_briefs_only@ca10.uscourts.gov. I further certify that the foregoing document
will be furnished by the Court through (ECF) electronic service to all parties in this
case through a registered CM/ECF user. This document will be available for
viewing and downloading on the CM/ECF system.




/s/ Laurence N. Bourne
Laurence N. Bourne
Counsel


March 6, 2013 

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