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NASUCA Principal Brief - In Re: FCC 11-161 (10th Cir.)

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Released: October 31, 2012
Appellate Case: 11-9900 Document: 01018937271 Date Filed: 10/23/2012 Page: 1
No. 11-9900
___________________________________________________________

IN THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

___________________________________________________________
IN RE: FCC 11-161
___________________________________________________________
On Petitions for Review of an Order of
The Federal Communications Commission
___________________________________________________________

UNCITED BRIEF OF

THE NATIONAL ASSOCIATION OF STATE UTILITY

CONSUMER ADVOCATES

___________________________________________________________

Paula M. Carmody, NASUCA
President
Maryland People’s Counsel
Office of People’s Counsel
6 St. Paul Street, Suite 2102
Baltimore, MD 21202
(410) 767-8150
FAX (410) 333-3616
paulaC@opc.state.md.us

David C. Bergmann
Counsel for NASUCA
3293 Noreen Drive
Columbus, OH 43221-4568
(614) 771-5979
david.c.bergmann@gmail.com



Appellate Case: 11-9900 Document: 01018937271 Date Filed: 10/23/2012 Page: 2

Christopher J. White
Deputy Rate Counsel
New Jersey Division of
Rate Counsel
P.O. Box 46005
Newark, NJ 07101
Phone (973) 648-2690
Fax (973) 624-1047
cwhite@rpa.state.nj.us








October 23, 2012








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TABLE OF CONTENTS


TABLE OF AUTHORITIES .............................................................................. II
GLOSSARY ....................................................................................................... IV
I. INTRODUCTION ......................................................................................... 1
II. JURISDICTIONAL STATEMENT ............................................................. 1
III. SUMMARY OF ISSUE PRESENTED...................................................... 1
IV. STANDING ................................................................................................... 2
V. THE ARC....................................................................................................... 4
VI. THE FCC CITES NO AUTHORITY FOR ADOPTING THE ARC ....... 5
VII.
THE ARC IS NOT “REASONABLY ANCILLARY” TO THE
FCC’S AUTHORITY. ................................................................................... 6
VIII. THE ARC IS READILY DISTINGUISHABLE FROM THE
PREVIOUS LOST-ACCESS REVENUE RECOVERY
MECHANISM THAT WAS WITHIN FCC JURISDICTION. ................ 8
IX. THE FCC’S ARC IS OTHERWISE ARBITRARY AND
CAPRICIOUS, ESPECIALLY BECAUSE IT IS IMPOSED ON
A HOLDING COMPANY BASIS. .............................................................11
X. CONCLUSION ............................................................................................14


Certificate of Compliance

Certificate of Service
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TABLE OF AUTHORITIES

CASES









PAGE

American Library Ass’n v. FCC, 406 F.3d 689 (D.C. Cir.
2005)……………………………………………………………………..7
City of Arlington v. FCC, 668 F.3d 229 (5th Cir. 2012), cert.
granted, Sup. Ct. Docket 11-1545 (October 5, 2012)……….12
Comcast Corp. v. FCC, 600 F.3d 542 (D.C. Cir. 2010)…..6, 7, 8
Connecticut Office of Consumer Counsel v. FCC, 915 F.2d 75
(2nd Cir. 1990)…………………………………………………………13
Nat’l Ass’n of State Regulatory Util. Comm’rs v. FCC, 533 F.3d
642 (D.C. Cir. 1976)……………………………………………………7
Nat’l Ass’n of State Util. Consumer Advocates v. FCC, 372 F.3d
454 (D.C. Cir. 2004)………………………………………………….10
Qwest Comm’ns Int’l v. FCC, 398 F.2d 1222 (10th Cir.
2005)...................................................................................10
SEC v. Chenery, 318 U.S. 80 (1943)………………………………..6


STATUTES


47 U.S.C. 202(a)……………………………………………………….13
47 U.S.C. §254………………………………………………………….5


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AGENCY DECISIONS

In the Matter of Connect America Fund, WC Docket No. 10-90, A
National Broadband Plan for Our Future,
GN Docket No. 09-51,
Establishing Just and Reasonable Rates for Local Exchange
Carriers,
WC Docket No. 07-135, High-Cost Universal Service
Support,
WC Docket No. 05-337, Developing an Unified
Intercarrier Compensation Regime,
CC Docket No. 01-92,
Federal-State Joint Board on Universal Service, CC Docket No.
96-45, Lifeline and Link-Up, WC Docket No. 03-109, Universal
Service – Mobility Fund,
WT Docket No. 10-208, Report And
Order And Further Notice of Proposed Rulemaking (“Order”)
(adopted October 27, 2011, released November 18, 2011), FCC
11-161…………………………………..1, 4, 5, 6, 7, 8, 9, 11 13, 14
In the Matter of Applications Filed for the Transfer of Certain
Spectrum Licenses and Section 214 Authorizations in the States
of Maine, New Hampshire, and Vermont from Verizon
Communications Inc. and its Subsidiaries to FairPoint
Communications, Inc.
, WC Docket No. 07-22, Memorandum
Opinion and Order, rel. January 9, 2008………………………..12
In the Matter of Multi-Association Group (MAG) Plan for
Regulation of Interstate Services of Non-Price Cap Incumbent
Local Exchange Carriers and Interexchange Carriers
, 16 FCC
Rcd 19613 (2001) (“MAG Order”)…………………………………..9
Access Charge Reform, Price Cap Performance Review for Local
Exchange Carriers
, Low-Volume Long-Distance Users, Federal-
State Joint Board on Universal Service
, 15 F.C.C.R. 12962
(2000) (“CALLS Order”)………………………………………..9, 11

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GLOSSARY

1996 Act
Telecommunications Act of
1996, Pub. L. No. 104-104,
110 Stat. 56, codified at 47
U.S.C. §§151-276
APA
Administrative
Procedures
Act, 5 U.S.C. §553
ARC
Access Recovery Charge
CAF
Connect America Fund
Commission or FCC
Federal
Communications
Commission
ER
Eligible Recovery
ICC
Intercarrier compensation
ILEC
Incumbent Local Exchange
Carrier
LEC
Local Exchange Carrier
SLC
Subscriber line charge


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I.

INTRODUCTION

As discussed in the “Joint Preliminary Brief” and the “Joint
Intercarrier Compensation Brief,” the FCC’s decision to reduce
intercarrier compensation (“ICC”) rates to the bill-and-keep rate of
zero necessarily reduced the ICC revenues of incumbent local
exchange carriers (“ILECs”). The Order allows them, but not other
local carriers, to replace some, but not all, revenues lost due to
reductions in ICC rates, through a recovery mechanism consisting
of two components: (1) the Access Recovery Charge (“ARC”), which
allows the ILEC to impose rate increases on end users and (2)
Connect America Fund (“CAF”) support, where the ILEC is eligible.
Order at ¶849. This brief focuses on the ARC.

II.

JURISDICTIONAL STATEMENT

(Not required per Amended First Briefing Order [August 7,
2012] at 3.)

III. SUMMARY OF ISSUE PRESENTED

Whether the FCC has the authority to impose an ARC on end
users to replace ILECs’ lost interstate and intrastate ICC revenues.
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IV. STANDING

NASUCA is a voluntary, national association of consumer
advocates in more than 40 states and the District of Columbia,
organized in 1979. NASUCA’s members are designated by the laws
of their respective states to represent the interests of utility
consumers before state and federal regulators and in the courts.
Associate and affiliate NASUCA members also serve utility
consumers, but have not been created by state law or do not have
statewide authority. NASUCA participated in the informal
rulemaking proceedings before the FCC.
NASUCA and its members are aggrieved by many aspects of
the Commission’s ruling. This is particularly true for the ARC,
which imposes unlawful, unreasonable and unjust charges on the
end-use customers whom NASUCA members represent.

V.

SUMMARY OF ARGUMENT1

The FCC cites no authority that would allow it to directly
impose a new charge on end users to recover ILECs’ lost revenues

1 These arguments are presented as supplemental to the APA
arguments on the ARC presented in the Joint USF Brief.
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caused by the FCC’s decision to move to a bill-and-keep (zero rate)
ICC regime. This is particularly true because a significant part of
those lost revenues are intrastate revenues — derived from calls
that begin and end within a single state.
In 2001, the FCC replaced lost interstate ICC revenues
through increases in the interstate subscriber line charge (“SLC”)
and increased disbursements from the federal USF. This action
was within its established authority, but does not stand as
precedent to allow the creation of a new, separate ARC to recover
intrastate lost revenues.
The ARC is particularly unreasonable because it is imposed on
a holding company basis, rather than on a state jurisdictional
basis. Thus lost revenues from states that have had high intrastate
access charges are to be recovered from other states — served by
the same holding company — that have lowered their intrastate
charges or, indeed, from jurisdictions like the District of Columbia
that do not have “intrastate” access revenues.

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V.

THE ARC

The FCC’s “mechanism allows LECs to recover ICC revenues
reduced as part of our intercarrier compensation reforms, … from
alternate revenue sources: incremental, and limited increases in
end user rates and, where appropriate, universal service support
through the” CAF Order, ¶847. The FCC notes that “[t]he recovery
mechanism is limited in time” and claims that it “carefully balances
the benefits of certainty and a gradual transition with our goal of
keeping the federal universal service fund on a budget and
minimizing the overall burden on end users.” Id.
The ARC is the first source for lost access revenue
replacement. Id., ¶908. As a second recourse, ILECs can seek
additional CAF funding. Id., ¶918. Although there are many
problematic aspects to this use of the CAF for revenue recovery —
especially the recovery of lost intrastate access revenues — the
CAF at least purports to be established under §254. See Order,
¶919. That is not the case for the ARC.

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VI. THE FCC CITES NO AUTHORITY FOR ADOPTING THE ARC

The Order repeatedly cites the purported benefits — to
consumers and the industry — of its access charge restructuring,
and the limitations placed on the ARC. See, e.g., id., ¶861. But
despite the almost 29,000 words of the Order devoted to the
Recovery Mechanism,2 there is no mention of the Commission’s
legal authority to adopt such a mechanism.
This is in distinct contrast to the rest of the Order. For
example, in the immediately preceding section of the Order, the FCC
discusses “The Duty to Negotiate Interconnection Agreements.” Id.,
¶¶825-846. There the Commission sets forth both its “direct”
authority, id., ¶¶834-836 and its “ancillary” authority. Id., ¶¶837-
839. The best that the FCC can do for the ARC, however, is discuss
its “policy approach to recovery.” Id., ¶854.
The FCC agreed “with commenters who maintain that the
Commission has no legal obligation to ensure that carriers recover
access revenues lost as a result of reform, absent a showing of a
taking.” Id., ¶924. It was thus all the more important for the FCC
to have identified a source of legal authority for its voluntary

2 Order, ¶¶847-932.
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adoption of the ARC. But it did not do so. The rationalizations of
the FCC in its briefs here cannot substitute for the lack of
discussion in the Order. SEC v. Chenery, 318 U.S. 80, 94 (1943).
The FCC’s attempts to minimize the impacts of the ARC, Order
¶¶852, 909, cannot obscure the lack of authority for it to order this
novel charge on customers. An unlawful charge is no more lawful
because it is limited; the ARC amounts, in total, to multiple millions
of dollars each year.

VII. THE ARC IS NOT “REASONABLY ANCILLARY” TO THE

FCC’S AUTHORITY.

As noted, the FCC cites no direct authority for the adoption of
the ARC. It may argue, however, that the adoption falls within its
“ancillary” authority. That subject was extensively discussed in
Comcast Corp. v. FCC, 600 F.3d 642, 646 (D.C. Cir. 2010), where
the D.C. Circuit quoted the “two-part test” it had adopted in
American Library Ass'n v. FCC, 406 F.3d 689, 691-692 (D.C. Cir.
2005): “The Commission ... may exercise ancillary jurisdiction only
when two conditions are satisfied: (1) the Commission's general
jurisdictional grant … covers the regulated subject and (2) the
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Appellate Case: 11-9900 Document: 01018937271 Date Filed: 10/23/2012 Page: 13
regulations are reasonably ancillary to the Commission's effective
performance of its statutorily mandated responsibilities.” The first
condition is met only if the FCC’s assertion that it has jurisdiction
over intrastate access charges and rate setting for reciprocal
compensation is accepted. The “Joint ICC Brief” shows the error in
this assertion.
To meet the conjunctive test, the FCC’s claim of ancillary
jurisdiction would also have to be “independently justified,”
Comcast, 600 F.3d at 651, quoting National Ass'n of Regulatory
Utility Comm'rs v. FCC, 533 F.2d 601, 612 (D.C.Cir.1976). The
Commission cannot point to mere “policy statements.” Comcast,
600 F.3d at 654.

As discussed, in the Order, the FCC has cited neither direct
authority nor ancillary authority for the creation of the ARC. In this
regard, the conclusion of the Comcast court is compelling:
It is true that “Congress gave the [Commission] broad
and adaptable jurisdiction so that it can keep pace with
rapidly evolving communications technologies.” Resp't's
Br. 19. It is also true that “[t]he Internet is such a
technology,” id., indeed, “arguably the most important
innovation in communications in a generation,” id. at 30.
Yet notwithstanding the “difficult regulatory problem of
rapid technological change” posed by the
communications industry, “the allowance of wide latitude
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in the exercise of delegated powers is not the equivalent
of untrammeled freedom to regulate activities over which
the statute fails to confer ... Commission authority.”
NARUC II, 533 F.2d at 618 (internal quotation marks and
footnote omitted).

Comcast, 600 F.3d at 661. As in Comcast, “[B]ecause the
Commission has failed to tie its assertion of ancillary authority … to
any ‘statutorily mandated responsibility,’” id. (citation omitted), to
adopt the ARC, the Order should be reversed.

VIII. THE ARC IS READILY DISTINGUISHABLE FROM THE

PREVIOUS LOST-ACCESS REVENUE RECOVERY
MECHANISM THAT WAS WITHIN FCC JURISDICTION.

The FCC misleadingly states, “Consistent with past ICC
reforms, we permit carriers to recover a limited portion of their
Eligible Recovery from their end users through a monthly fixed
charge called an ARC.” Order, ¶852. There is no such consistency,
because the ARC is an entirely new charge. In the previous
iteration, the “monthly fixed charge” through which carriers
recovered a limited portion of their lost access interstate revenues
was the SLC. Here, the FCC emphasizes that the ARC “is
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Appellate Case: 11-9900 Document: 01018937271 Date Filed: 10/23/2012 Page: 15
calculated independently from, and has no bearing on, existing
SLCs….” Id.
As the FCC states,
SLCs today are designed to recover common line
revenues as defined by Commission regulation. We are
not formally recategorizing any costs or revenues to be
included in that regulatory category, and the calculation
of Eligible Recovery for purposes of the reforms we adopt
today is completely independent of SLC rate calculations.

Id
., ¶912.

The scope and purpose of the ARC is distinctly different from
the last time the FCC reduced access charges, in 2000. Then, in
the CALLS Order, it reduced interstate access charges, and allowed
revenue recovery though increased SLCs and additional USF
support.3

The increased USF support was implemented as a means of
reducing implicit support in interstate access charges. CALLS
Order, ¶30. (As this court recognized, Congress’ directive in the
1996 Act dealt with removing implicit support in interstate access
charges, not intrastate charges. Qwest Comm’s Int’l v. FCC, 398

3 CALLS Order, ¶30. The CALLS Order covered price-cap ILECs.
Similar provisions were adopted for rate-of-return ILECs in the
subsequent MAG Order.
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Appellate Case: 11-9900 Document: 01018937271 Date Filed: 10/23/2012 Page: 16
F.2d 1222, 1231 (10th Cir. 2005).) Similarly, the FCC found that
the SLC increases were “within the Commission’s statutory
authority to order proper recovery of the portion of common line
costs that has been allocated to the interstate jurisdiction through
charges imposed on telephone subscribers.” CALLS Order, ¶76; see
also id., ¶93.4

In the Order, however, the FCC made no pretense at the
recovery of only interstate revenues or costs. See Order, ¶851.
Indeed, there is no pretense of a connection with cost recovery at
all. Id. Yet the FCC itself cites to evidence that a very substantial
portion of the recovery will come from the intrastate access charge
reduction. Id., ¶791.5

Thus what the FCC did with SLCs in the CALLS Order cannot
be used as precedent to support the adoption of even a limited ARC

4 This use of the SLC for interstate cost recovery was upheld in Nat’l
Ass’n of State Util. Consumer Advocates v. FCC
, 372 F.3d 454 (D.C.
Cir. 2004).
5 The Order cites a Letter from Joe A. Douglas, Vice President,
Government Relations, NECA, to Marlene H. Dortch, Secretary,
FCC, CC Docket Nos. 96-45, 80-286, Attach. (filed Dec. 29, 2010)
(NECA Dec. 29, 2010 Ex Parte Letter) showing relative interstate
and intrastate access charge and revenue levels.
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Appellate Case: 11-9900 Document: 01018937271 Date Filed: 10/23/2012 Page: 17
here. And it underscores the FCC’s lack of authority to adopt the
ARC.

IX. THE FCC’S ARC IS OTHERWISE ARBITRARY AND

CAPRICIOUS, ESPECIALLY BECAUSE IT IS IMPOSED ON A
HOLDING COMPANY BASIS.

Intrastate access charges and reciprocal compensation rates
are calculated on a state-by-state basis, and vary, often
considerably, between states. Thus the impact of the reduction to a
zero bill-and-keep rate will also vary considerably between states.
Despite this, the FCC has permitted the ARC to be calculated at the
holding company level. Order, ¶910.
Telephone holding companies serve numerous different states.
For example, Verizon provides access and wholesale services in 27
states across the country and the District of Columbia.6 This
includes states where Verizon does not provide local service7 and

6 See Reply Comments of the Wyoming Public Service Commission
(September 6, 2011) (“WyPSC Reply Comments”) at 12.
7 E.g., Maine, New Hampshire and Vermont. In the Matter of Applications
Filed for the Transfer of Certain Spectrum Licenses and Section 214
Authorizations in the States of Maine, New Hampshire, and Vermont
from Verizon Communications Inc. and its Subsidiaries to FairPoint

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Appellate Case: 11-9900 Document: 01018937271 Date Filed: 10/23/2012 Page: 18
the District of Columbia, where there are no “intrastate” access
charges.8 Likewise, AT&T serves 22 different states across the
country.9
This means that consumers in states that have previously
reduced their intrastate access charges10 as well as jurisdictions
that have no such charges will be required to pick up the burden
from states that have not done so. Prior to the Order, rates for
intrastate access charges — and methods by which intrastate
access charge revenue changes were addressed — were set by the
states. Now the FCC — as part of its usurpation of state authority
over ICC11 — has made customers in one state responsible for the
ratemaking decisions of other states. The FCC’s justification, that

Communications, Inc., WC Docket No. 07-22, Memorandum Opinion
and Order, rel. January 9, 2008.
8 See Petition for Reconsideration of the Public Service Commission
of the District of Columbia (December 29, 2011) at 3. The FCC has
not ruled on the D.C. PSC’s Petition for Reconsideration. The
presentation of an issue in one party’s (the D.C. PSC’s) Petition for
Reconsideration does not bar appellate review of the issue when
raised by another party. City of Arlington v. FCC, 668 F.3d 229,
238 (5th Cir. 2012), cert. granted on separate issue, Sup. Ct. Docket
11-1545 (October 5, 2012).
9 See footnote 7, supra.
10 Id.
11 See, generally, Joint ICC Brief.
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“[b]y providing this flexibility, carriers will be able to spread the
recovery of Eligible Recovery among a broader set of customers,
minimizing the increase experienced by any one customer,” Order,
¶910, actually highlights the arbitrariness of its decision.
This (mis)allocation of lost ICC revenue also violates 47 U.S.C.
§202(a), which prohibits “unjust or unreasonable discrimination in
charges” and, specifically “subject[ing] any … locality to any undue
or unreasonable prejudice or disadvantage.” In Connecticut Office of
Consumer Counsel v. FCC, 915 F.2d 75 (2nd Cir. 1990), the Court
upheld the FCC’s preventing the pass-through of a Connecticut tax
to customers in other states. The holding-company-wide ARC here
allows state-specific costs to be passed on to customers in other
states.
In this context, the lack of record support for the holding-
company-based ARC is notable. The FCC cites only to the ABC
Plan’s proposal to have lost ICC revenue calculated at the holding
company level, linked to recovery through increased SLCs and USF
support. Order, ¶910, n.1801. This issue was also not addressed
in the comments or reply comments of the ABC Plan proponents.

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X.

CONCLUSION

The FCC cites no authority for adopting a revenue-replacing
ARC. Although previous increases to the SLC as a means of
recovering interstate costs may have been lawful, the creation of the
ARC as a means to recover intrastate revenues — with no link to
costs — has no basis in the statutes and must be reversed.
Respectfully submitted,
Paula M. Carmody, NASUCA President
Maryland People’s Counsel
Office of People’s Counsel
6 St. Paul Street, Suite 2102
Baltimore, MD 21202
(410) 767-8150
FAX (410) 333-3616
paulaC@opc.state.md.us

David C. Bergmann
Counsel for NASUCA
3293 Noreen Drive
Columbus, OH 43221-4568
(614) 771-5979
david.c.bergmann@gmail.com

Christopher J. White
Deputy Rate Counsel
New Jersey Division of
Rate Counsel
P.O. Box 46005
Newark, NJ 07101
Phone (973) 648-2690
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Fax (973) 624-1047
cwhite@rpa.state.nj.us







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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 filing complies with the type-volume limitation of the
Amended First Briefing Order because it contains 2429 words,
excluding the parts of the filing exempted by Fed. R. App. P.
32(a)(7)(B)(iii).

2. This filing 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 Bookman Old Style font.

3. All required privacy redactions have been made.

4. This filing was scanned for viruses with AVG Antivirus, updated
on, October 22, 2012, and according to the program is free of
viruses.

/s/ David C. Bergmann
October 23, 2012


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CERTIFICATE OF SERVICE


I hereby certify that, on October 23, 2012, I caused the foregoing
document to be electronically filed with the Court. I also certify this
document was furnished through ECF electronic service to all
parties in this case through a registered CM/ECF user. This
document is available for viewing and downloading on the CM/ECF
system.

/s/ David C. Bergmann
October 23, 2012

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