Skip Navigation

Federal Communications Commission

English Display Options

Commission Document

Preliminary Brief of Petitioners In Re: FCC 11-161 (10th Cir.)

Download Options

Released: October 31, 2012
Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 1


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
____________

UNCITED JOINT PRELIMINARY BRIEF OF THE PETITIONERS
(DEFERRED APPENDIX APPEAL)
____________









[Counsel for Petitioners Listed on Following Pages]






September 24, 2012








Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 2
Adak Eagle Enterprises LLC, Adams Telephone Cooperative, Alenco
Communications, Inc., Arlington Telephone Company, Bay Springs
Telephone Company, Inc., Big Bend Telephone Company, Inc., The
Blair Telephone Company, Blountsville Telephone LLC, Blue Valley
Telecommun ications, Inc., Bluffton Telephone Company, Inc., BPM,
Inc., Brantley Telephone Company, Inc., Brazoria Telephone
Company, Brindlee Mountain Telephone LLC, Bruce Telephone
Company, Bugs Island Telephone Cooperative, Cameron Telephone

Company, LLC, Chariton Valley Telephone Corporation,
Chequamegon Communications Cooperative, Inc., Chickamauga
Telephone Corporation, Chickasaw Telephone Company, Chippewa
County Telephone Company, Clear Lake Independent Telephone
Company, Comsouth Telecommunications, Inc., Copper Valley
Telephone Cooperative, Cordova Telephone Cooperative, Crockett
Telephone Company, Inc., Darien Telephone Company, Deerfield
Farmers' Telephone Company, Delta Telephone Company, Inc., East
Ascension Telephone Company, LLC, Eastern Nebraska Telephone
Company, Eastex Telephone Coop., Inc., Egyptian Telephone

Cooperative Association, Elizabeth Telephone Company, LLC, Ellijay
Telephone Company, Farmers Telephone Cooperative, Inc., Flatrock
Telephone Coop., Inc., Franklin Telephone Company, Inc., Fulton
Telephone Company, Inc., Glenwood Telephone Company, Granby
Telephone LLC, Hart Telephone Company, Hiawatha Telephone
Company, Holway Telephone Company, Home Telephone Company
(St. Jacob, Ill.), Home Telephone Company (Moncks Corner, SC),
Hopper Telecommunications Company, Inc., Horry Telephone
Cooperative, Inc., Interior Telephone Company, Kaplan Telephone

Company, Inc., KLM Telephone Company, City Of Ketchikan, Alaska,
Lackawaxen Telecommunications Services, Inc., Lafourche Telephone
Company, LLC, La Harpe Telephone Company, Inc., Lakeside
Telephone Company, Lincolnville Telephone Company, Loretto
Telephone Company, Inc., Madison Telephone Company, Matanuska
Telephone Association, Inc., McDonough Telephone Coop., Inc., MGW
Telephone Company, Inc., Mid Century Telephone Coop., Inc.,
Midway Telephone Company, Mid-Maine Telecom LLC, Mound Bayou
Telephone & Communications, Inc., Moundville Telephone Company,

Inc., Mukluk Telephone Company, Inc., National Telephone of
Alabama, Inc., Ontonagon County Telephone Company, Otelco Mid-
Missouri LLC, Otelco Telephone LLC, Panhandle Telephone

ii

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 3
Cooperative, Inc., Pembroke Telephone Company, Inc., People's
Telephone Company, Peoples Telephone Company, Piedmont Rural
Telephone Cooperative, Inc., Pine Belt Telephone Company, Pine Tree
Telephone LLC, Pioneer Telephone Cooperative, Inc., Poka Lambro
Telephone Cooperative, Inc., Public Service Telephone Company,
Ringgold Telephone Company, Roanoke Telephone Company, Inc.,
Rock County Telephone Company, Saco River Telephone LLC,
Sandhill Telephone Cooperative, Inc., Shoreham Telephone LLC, The

Siskiyou Telephone Company, Sledge Telephone Company, South
Canaan Telephone Company, South Central Telephone Association,
Star Telephone Company, Inc., Stayton Cooperative Telephone
Company, The North-Eastern Pennsylvania Telephone Company,
Tidewater Telecom, Inc., Tohono O'Odham Utility Authority, SD,
Unitel, Inc., War Telephone LLC, West Carolina Rural Telephone
Cooperative, Inc., West Tennessee Telephone Company, Inc., West
Wisconsin Telcom Cooperative, Inc., Wiggins Telephone Association,
Winnebago Cooperative Telecom Association, and Yukon Telephone
Co., Inc.

By Their Counsel

David Cosson


H. Russell Frisby, Jr.

2154 Wisconsin Avenue, N.W.

Dennis Lane

Washington, DC 20007

Harvey Reiter


Tel: 202-333-5275
Stinson Morrison Hecker LLP
dcosson@klctele.com
1775 Pennsylvania Ave., NW

Suite 800

Washington, DC 20006
Tel: 202-785-9100
rfrisby@stinson.com
dlane@stinson.com
hreiter@stinson.com
iii

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 4
Allband Communications
Arizona Corporation Commission
Cooperative
By Its Counsel
By Its Counsel


Maureen A. Scott

Don L. Keskey

Wesley Van Cleve

Public Law Resource Center

Janet F. Wagner

PLLC
Arizona Corporation Commission
139 W. Lake Lansing Road
Legal Division
Suite 210
1200 West Washington
East Lansing, MI 48823
Phoenix, AZ 85007
Tel: 517-999-7572
Tel: 602-542-3402
donkeskey@
mscott@azcc.gov
publiclawresourcecenter.com
wvancleve@azcc.gov
jwagner@azcc.gov

iv

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 5
Cellular South, Inc.
CenturyLink, Inc.
By Its Counsel
By Its Counsel


Rebecca Hawkins

Yaron Dori

Michael B. Wallace

Robert Allen Long, Jr.

Wise Carter Child & Caraway

Mark W. Mosier

401 East Capitol Street

Gerard J. Waldron

Suite 600
Covington & Burling
P.O. Box 651
1201 Pennsylvania Avenue, NW
Jackson, MS 39205
Washington, DC 20004
Tel: 601-968-5500
Tel: 202-662-6000
rwh@wisecarter.com
ydori@cov.com
mbw@wisecarter.com
rlong@cov.com

gwaldron@cov.com

Russell Lukas

mmosier@cov.com

David LaFuria

Lukas, Nace, Gutierrez &
Sachs, LLP
8300 Greensboro Drive
Suite 1200
McLean, VA 22102
Tel: 703-584-8678
rlukas@fcclaw.com
dlafuria@fcclaw.com

v

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 6
Choctaw Telephone Company
Core Communications, Inc.
By Its Counsel
By Its Counsel


Benjamin H. Dickens, Jr.

James Christopher Falvey

Mary J. Sisak

Charles Anthony Zdebski

Robert M. Jackson

Eckert Seamans Cherin & Mellott
Blooston, Mordkofsky, Dickens, 1717 Pennsylvania Avenue, NW
Duffy, & Prendergast, LLP
12th Floor
2120 L Street, NW, Suite 300
Washington, DC 20006
Washington, DC 20037
Tel: 202-659-6655
Tel: 202-659-0830
jfalvey@eckertseamans.com
bhd@bloostonlaw.com
czdebski@eckertseamans.com
mjs@bloostonlaw.com

rmj@bloostonlaw.com

Craig S. Johnson


Johnson & Sporleder
304 East High Street, Suite 200
Jefferson City, MO 65102
Tel: 573-659-8734
cj@cjaslaw.com

vi

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 7
Direct Communications Cedar
Gila River Indian Community and
Valley, LLC, Totah
Gila River Telecommunications,
Communications, Inc., H & B
Inc.
Communications, Inc. The
By Its Counsel
Moundridge Telephone

Company of Moundridge,

Patricia A. Millett

Pioneer Telephone Association,

Sean Conway

Inc. Twin Valley Telephone, Inc., Akin Gump Strauss Hauer & Feld
and Pine Telephone Company,
LLP
Inc.
1333 New Hampshire Avenue, NW
By Their Counsel
Washington, DC 20036-1564

Tel: 202-887-4000

David R. Irvine


pmillett@akingump.com
Attorney and Counselor at Law sconway@akingump.com
747 East South Temple, Suite

130

Salt Lake City, UT 84102
Tel: 801-579-0802
drirvine@aol.com

Alan Lange Smith


1169 East 4020 South
Salt Lake City, UT 84124
Tel: 801-262-0555
Alanakaed@aol.com

vii

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 8
National Association of
National Association of State Utility
Regulatory Utility
Consumer Advocates
Commissioners
By Its Counsel
By Its Counsel


David Bergmann


James Bradford Ramsay


David C. Bergmann, Attorney at
National Association of
Law
Regulatory Utility
3293 Noreen Drive
Commissioners
Columbus, OH 43221-4586
1101 Vermont Avenue, NW
Tel: 614-771-5979
Suite 200
david.c.bergmann@gmail.com
Washington, DC 20005

Tel: 202-898-2200

Paula Marie Carmody


jramsay@naruc.org
Maryland Office of People's
Counsel
6 St. Paul Street, Suite 2102
Baltimore, MD 21202
Tel: 410-767-8150
paulac@opc.state.md.us

Christopher J. White


New Jersey Division of Rate
Counsel
31 Clinton Street, 11th Floor
Newark, NJ 07101
Tel: 973-648-7575
cwhite@rpa.state.nj.us

viii

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 9
National Telecommunications
Nex-Tech Wireless, LLC and
Cooperative Association, U.S.
Cellular Network Partnership
TelePacific Corp., and
By Their Counsel
Consolidated Communications

Holdings, Inc.

Russell Lukas

By Their Counsel

Todd Bradley Lantor


Lukas, Nace, Gutierrez & Sachs,

Russell Blau


LLP

Tamar Finn


8300 Greensboro Drive
Bingham McCutchen LLP
Suite 1200
2020 K Street, NW
McLean, VA 22102
Washington, DC 20006
Tel: 703-584-8678
Tel: 202-373-6000
rlukas@fcclaw.com
russell.blau@bingham.com
tlantor@fcclaw.com
tamar.finn@bingham.com


North County Communications
Pennsylvania Public Utility
Corporation
Commission
By Its Counsel
By Its Counsel


Roger Dale Dixon, Jr.


Bohdan R. Pankiw

Law Offices of Dale Dixon

Kathryn G. Sophy

7316 Esfera Street

Joseph K. Witmer

Carlsbad, CA 92009

Shaun A. Sparks

Tel: 858-688-6292
Pennsylvania Public Utility
dale@daledixonlaw.com
Commission

400 North Street, 3rd Floor
Harrisburg, PA 17120
Tel: 717-783-3190
bpankiw@state.pa.us
ksophy@pa.gov
joswitmer@pa.gov
shsparks@pa.gov

ix

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 10
PR Wireless, Inc. and DOCOMO Public Utilities Commission of Ohio
Pacific, Inc.
By Its Counsel
By Their Counsel


John H. Jones


Russell Lukas

Office of the Ohio Attorney

David LaFuria

General

Todd Bradley Lantor

Public Utilities Section
Lukas, Nace, Gutierrez &
180 East Broad Street
Sachs, LLP
6th Floor
8300 Greensboro Drive
Columbus, OH 43215-3793
Suite 1200
Tel: 614-466-4395
McLean, VA 22102
john.jones@puc.state.oh.us
Tel: 703-584-8678

rlukas@fcclaw.com
dlafuria@fcclaw.com
tlantor@fcclaw.com

x

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 11
Rural Independent Competitive
The Kansas State Corporation
Alliance, Rural Telephone
Commission
Service Company, Inc.,
By Its Counsel
By Their Counsel


Robert A. Fox


David Cosson


Kansas Corporation Commission
2154 Wisconsin Avenue, N.W.
1500 S.W. Arrowhead Road
Washington, DC 20007
Third Floor
Tel: 202-333-5275
Topeka, KS 66606
dcosson@klctele.com
Tel: 913-271-3100

b.fox@kcc.ks.gov

H. Russell Frisby, Jr.
Dennis Lane
Harvey Reiter


Stinson Morrison Hecker LLP
1775 Pennsylvania Ave., NW
Suite 800
Washington, DC 20006
Tel: 202-785-9100
rfrisby@stinson.com
dlane@stinson.com
hreiter@stinson.com

xi

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 12
The Voice on the Net Coalition,
Transcom Enhanced Services, Inc.
Inc.
By Its Counsel
By Its Counsel


Walter H. Sargent, II


Jennifer P. Bagg

Walter H. Sargent, a professional

E. Ashton Johnston

corporation

Donna N. Lampert

1632 North Cascade Avenue
Lampert, O'Connor &
Colorado Springs, CO 80907
Johnston, P.C.
Tel: 719-577-4510
1776 K Street, NW, Suite 700
wsargent@wsargent.com
Washington, DC 20006

Tel: 202-887-6230

W. Scott McCollough


bagg@lojlaw.com
McCollough Henry, P.C.
johnston@lojlaw.com
1250 South Capital of Texas
lampert@lojlaw.com
Highway

Building 2-235

Glenn Richards


Austin, TX 78746
Pillsbury Winthrop Shaw
Tel: 512-888-1112
Pittman
wsmc@dotlaw.biz
2300 N Street, NW

Washington, DC 20037-1122

Steven H. Thomas


Tel: 202-663-8000
McGuire, Craddock & Strother,
glenn.richards@pillsburylaw.co
P.C.
m
2501 North Harwood

Suite 1800
Dallas, TX 75201
Tel: 214-954-6800
sthomas@mcslaw.com

xii

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 13
tw telecom inc.
United States Cellular Corporation
By Its Counsel
By Its Counsel


David P. Murray

Russell Lukas

Thomas Jones

David LaFuria

Nirali Patel

Lukas, Nace, Gutierrez & Sachs,
Willkie Farr & Gallagher
LLP
1875 K Street, NW
8300 Greensboro Drive
Washington, DC 20006
Suite 1200
Tel: 202-303-1000
McLean, VA 22102
dmurray@willkie.com
Tel: 703-584-8678
tjones@willkie.com
rlukas@fcclaw.com
npatel@willkie.com
dlafuria@fcclaw.com


Vermont Public Service Board

By Its Counsel

Bridget Asay


Office of the Attorney General
for the State of Vermont
109 State Street
Montpelier, VT 05609-1001
Tel: 802-828-3181
basay@atg.state.vt.us


xiii

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 14

TABLE OF CONTENTS

Table of Contents ................................................................ xiv
Table of Authorities ............................................................. xvi
Statement of Related Cases ................................................ xxii
Glossary ........................................................................... xxiii
Jurisdictional Statement ....................................................... 1
Summary of Issues Presented ............................................... 2
Statement of the Case ........................................................... 4
Statement of Facts ................................................................ 6
I. Introduction
.................................................................. 6
II. Statutory
Background
................................................... 7
III. Regulatory
Background
................................................ 15
A. ICC
......................................................................
15
B. USF
.....................................................................
18
C. Broadband Plan ................................................... 21
D. Comcast
Corp. v. FCC .......................................... 23
IV. The
NPRM
.................................................................... 24
V. The
Order
....................................................................
25
A.
USF Rule Changes ............................................... 26
B. ICC
Rule Changes ................................................ 33
xiv


Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 15
Standard of Review .............................................................. 39
Certificate of Compliance

Certificate of Service

xv

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 16

TABLE OF AUTHORITIES

Cases

 
American Library Ass’n v. FCC, 406 F.3d 689 (D.C. Cir.
2005) ................................................................................ 40
AT&T Corp. v. FCC, 292 F.3d 808 (D.C. Cir. 2002) ................. 6
AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366 (1999) ........ 9, 10
AT&T v. FCC, 349 F.3d 692 (D.C. Cir. 2003) ......................... 15
AT&T v. Illinois Bell, 349 F.3d 402 (7th Cir. 2003) ................. 10
BellSouth Telecommunications v. Sanford, 494 F.3d 439
(4th Cir. 2007) ................................................................... 9
Carpenters and Millwrights v. NLRB, 481 F.3d 804 (D.C.
Cir. 2007) ......................................................................... 42
Chevron USA v. Natural Resources Defense Council, 467
US 837 (1984) .................................................................. 39
Comcast Corp. v. FCC, 600 F.3d 642 (D.C. Cir. 2010) ............ 23
Core Communications v. FCC, 592 F.3d 139 (D.C. Cir.
2010) ................................................................................ 18
FCC v. Fox Television Stations, 556 U.S. 502 (2009) .............. 42
General Dynamics Land Sys. v . Cline, 540 U.S. 581
(2004) ............................................................................... 40
Iowa Utilities Bd. v FCC, 219 F.3d 744 (8th Cir. 2000) .......... 17
Marsh v. Oregon Natural Res. Council, 490 U.S. 360
(1989) ............................................................................... 41
Medtronic v. Lohr, 518 U.S. 470 (1996) ................................. 41
NCTA v. Brand X Internet Servs., 545 U.S. 967 (2005) ..... 19, 40
xvi


Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 17
NorAm Gas Transmission Co. v. FERC, 148 F.3d 1158
(D.C. Cir. 1990) ................................................................ 42
North American Coal Corporation v. Director, Office of
Workers’ Compensation Programs, 854 F.2d 386 (10th
Cir. 1988) ......................................................................... 42
PSEG Energy Res. & Trade LLC v. F.E.R.C., 665 F.3d 203
(D.C. Cir. 2011) ................................................................ 40
Qwest Corp. v. FCC, 258 F.3d 1191 (10th Cir. 2001) .............. 7
Qwest Corp. v. FCC, 398 F.3d 1222 (10th Cir. 2005) ............. 13
Reno v. ACLU, 521 U.S. 844 (1997) ....................................... 8
Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) .............. 42
Smith v. Illinois Bell Telephone Co., 282 U.S. 133 (1930) ........ 15
Texas Office of Public Utility Counsel v. FCC, 183 F.3d
393 (5th Cir. 1999) ........................................................... 12
Thomas Brooks Chartered v. Burnett, 920 F.2d 634 (10th
Cir. 1990) ......................................................................... 41
Time Warner Telecom v. FCC, 507 F.3d 205 (3d Cir.
2007) ............................................................................ 8, 20
U.S. v. Microsoft, 253 F.3d 34 (D.C. Cir. 2001) ....................... 7
U.S. West v. FCC, 182 F.3d 1224 (10th Cir. 1999) ................. 41
Universal Camera Corporation v. NLRB, 340 U.S. 474
(1951) ............................................................................... 42
Verizon Communications v. FCC, 535 U.S. 467 (2000) ........... 17

Statutes

 
05 U.S.C. § 553 .................................................................... 4
28 U.S.C. § 2342(1) ............................................................... 2
xvii

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 18
47 U.S.C. § 151 .................................................................... 6
47 U.S.C. § 152(b) ................................................................ 15
47 U.S.C. § 153(24) ............................................................... 8
47 U.S.C. § 153(51) ............................................................... 8
47 U.S.C. § 153(53) ............................................................... 8
47 U.S.C. § 154(i) .................................................................. 1
47 U.S.C. § 201(a) ................................................................. 1
47 U.S.C. § 214(e) .......................................................... 11, 12
47 U.S.C. § 251(a) ................................................................. 9
47 U.S.C. § 251(b) ................................................................. 9
47 U.S.C. § 251(c) ................................................................. 9
47 U.S.C. § 251(f) .................................................................. 9
47 U.S.C. § 252(d) .......................................................... 10, 11
47 U.S.C. § 254 ............................................................... 1, 11
47 U.S.C. § 254(a) ................................................................. 4
47 U.S.C. § 254(b) ................................................................ 13
47 U.S.C. § 254(c) .................................................... 11, 13, 14
47 U.S.C. § 254(e) ................................................................ 12
47 U.S.C. § 254(f) ................................................................. 19
47 U.S.C. § 254(h) ................................................................ 14
47 U.S.C. § 303(r) ................................................................. 1
47 U.S.C. § 402(a) ................................................................. 2
xviii

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 19
Broadband Data Improvement Act, Pub. L. No. 110-385,
122 Stat. 4096 (2008) ....................................................... 14
Telecommunications Act of 1996, Pub. L. No. 104-104,
Title VII, § 706(a), 110 Stat. 56, 153 (1996) ....................... 14

Legislative Materials

 
Reviewing the National Broadband Plan: Hearing before
the Senate Comm. on Commerce, Science, and
Transportation
, 111th Cong. 44 (2010) .............................. 23

Agency Decisions

 
76 Fed. Reg. 73830 (2011) .................................................... 1
Appropriate Framework for Broadband Access to the
Internet Over Wireline Facilities, 20 F.C.C.R. 14853
(2005), aff’d, Time Warner Telecom v. FCC, 507 F.3d
205 (3d Cir. 2007) ............................................................ 20
Appropriate Regulatory Treatment for Broadband Access
to the Internet Over Wireless Networks, 22 F.C.C.R.
5901 (2007) ...................................................................... 20
Classification of Broadband Over Power Line Internet
Access Service as an Information Service, 21 F.C.C.R.
13281 (2006) .................................................................... 20
Connect America Fund, 26 F.C.C.R. 17663 (2011)
(“Order”) .................................................................... passim
Connect America Fund, 26 F.C.C.R. 4554 (2011) (“NPRM”)
........................................................................ 5, 18, 24, 31
Connect America Fund, 27 F.C.C.R. 4648 (2012) .................. 38
Federal-State Joint Board on Universal Service, 12
F.C.C.R. 8776 (1997) (“First USF Order”)...................... 18, 19
Federal-State Joint Board on Universal Service, 13
F.C.C.R. 11501 (1998) ....................................................... 8
xix

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 20
Federal-State Joint Board on Universal Service, 14
F.C.C.R. 20432 (1999) ...................................................... 19
Federal-State Joint Board on Universal Service, 17
F.C.C.R. 14015 (Jt. Bd. 2002) ........................................... 20
Framework for Broadband Internet Service, 25 F.C.C.R.
7866 (2010) ...................................................................... 23
Further Inquiry into Certain Issues in the USF-ICC
Transformation Proceeding, 26 F.C.C.R. 11112 (WCB
2011) ................................................................................. 5
High-Cost Universal Service Support, 22 F.C.C.R. 20477
(Jt. Bd. 2007) ................................................................... 20
High-Cost Universal Service Support, 24 F.C.C.R. 6475
(2008) ......................................................................... 20, 21
High-Speed Access to the Internet Over Cable and Other
Facilities, 17 F.C.C.R. 4798 (2002), aff’d, NCTA v.
Brand X Internet Servs., 545 U.S. 967 (2005) ..................... 19
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, 11 F.C.C.R. 15499
(1996) (“Local Competition Order”) .......................... 10, 16, 17
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, Intercarrier
Compensation for ISP-Bound Traffic
, 16 F.C.C.R. 9151
(2001), vacated and remanded, WorldCom, Inc. v. FCC,
288 F.3d 429 (D.C. Cir. 2002), aff’d on other grounds,
Pennsylvania P.U.C. et al. v. FCC
and Core
Communications v. FCC
, 592 F.3d 139 (D.C. Cir. 2010),
rehrg. en banc denied (Mar. 26, 2010), cert. denied,
131 S.Ct. 597 (Nov. 15, 2010) ........................................... 18
Joint Statement on Broadband, 25 F.C.C.R. 3420 (2010) ....... 21
National Broadband Plan, FCC, 2010 WL 972375 (2010) 21, 22

xx

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 21

Other

 
Consolidation Order of the Judicial Panel on Multidistrict
Litigation, FCC 11-1914, MCP No. 108 (Dec. 14, 2011) ....... 1
Ronan Tel. Co. et al. v. FCC et al. (9th Cir. Case No. 05-
71995) ............................................................................ xxii
Windstream Corp. et al. v. FCC et al. (Case No. 12-9575) ..... xxii


xxi

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 22

STATEMENT OF RELATED CASES

There are no prior appeals, and all related cases have
been consolidated into this omnibus case, except Windstream
Corp. et al. v. FCC et al. (Case No. 12-9575), which was
transferred to this Court from the D.C. Circuit, but has not
been consolidated into this case. A previous order arising
from one of the administrative proceedings in which the Order
below was entered is before the Ninth Circuit in Ronan Tel. Co.
et al. v. FCC et al. (9th Cir. Case No. 05-71995).
xxii

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 23

GLOSSARY

1996 Act
Telecommunications Act of 1996
Act, or 1934 Act
Communications Act of 1934, as
amended
APA
Administrative Procedure Act
ARC
Access Recovery Charge
Board
Federal-State Joint Board on
Universal Service
BOC
Bell Operating Company
CAF
Connect America Fund
CETC Competitive
Eligible
Telecommunications Carrier
CLEC
Competitive Local Exchange Carrier
CMRS
Commercial Mobile Radio Service
COLR
Carrier of Last Resort
ER Eligible
Recovery
ETC
Eligible Telecommunications Carrier
ESP
Enhanced Service (or Information
Service) Provider
FCC, or Commission
Federal Communications Commission
HCLS
High Cost Loop Support
HCMS
High Cost Model Support
IAS
Interstate Access Support
ICC Intercarrier
Compensation
xxiii


Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 24
ICLS
Interstate Common Line Support
ILEC
Incumbent Local Exchange Carrier
IP Internet
Protocol
ISP Internet
Service
Provider
IXC Interexchange
Carrier
JA Joint
Appendix
LEC Local
Exchange
Carrier
LSS
Local Switching Support
Mobility Fund
CAF Mobility Fund
MTA Major
Trading
Area
NPRM
Notice of Proposed Rulemaking
POTS
Plain Old Telephone Services
PSTN
Public Switched Telephone Network
RLEC Rate-of-Return
ILEC
ROFR
Right of First Refusal
RTC
Rural Telephone Company
Separations Joint
Federal-State Joint Board on
Board
Jurisdictional Separations
SNA
Safety Net Additive
TDM Time
Division
Multiplexing
TELRIC
Total Element Long-Run Incremental
Cost
USAC
Universal Service Administrative
Company
xxiv

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 25
USF
Universal Service Fund
VoIP
Voice over Internet Protocol
WCB
The FCC’s Wireline Competition
Bureau


xxv

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 26

JURISDICTIONAL STATEMENT

The FCC has jurisdiction under the Act, 47 U.S.C.
§§154(i), 201(a), 254, 303(r), to prescribe rules and regulations
to implement provisions of the Act. Petitioners seek judicial
review of its order prescribing USF and ICC rules and
regulations. Connect America Fund, 26 F.C.C.R. 17663 (2011)
(“Order”).
Petitioners were parties to the FCC’s rulemaking
proceeding below.1 The Order, final for purposes of judicial
review as to each of them, was published on November 29,
2011. 76 Fed. Reg. 73830 (2011). Within sixty days,
Petitioners filed timely petitions for review. The Judicial Panel
on Multidistrict Litigation consolidated these in this Court.
Consolidation Order of the Judicial Panel on Multidistrict
Litigation, FCC 11-1914, MCP No. 108 (Dec. 14, 2011).
Petitioners ask this Court to hold unlawful and set aside
the Order, and have standing to seek such relief. This Court

1 Petitioner AT&T does not join this brief.
1


Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 27
has jurisdiction under the Act, 47 U.S.C. §402(a), and the
Hobbs Act, 28 U.S.C. §2342(1).

SUMMARY OF ISSUES PRESENTED

Did the FCC violate the APA or act arbitrarily and
capriciously, or contrary to statutory and constitutional
provisions, by:
1) preempting the states’ authority to set intrastate
rates;
2) preempting state regulation of intrastate rates and
recovery of prudently incurred costs with rate ceilings, floors,
and surcharges on intrastate rates with no support;
3) adopting auctions that preempt and conflict with
the states’ authority to designate ETCs and establish service
areas;
4) providing USF support for services not designated
as “telecommunications services” and conditioning USF
support on provision of unregulated “information service”;
2

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 28
5) requiring recipients of USF support to provide
information services without additional support for the costs of
those services;
6) modifying and eliminating high-cost support
mechanisms, including limiting support payments and
eligibility for support programs differently for various classes
of telecommunications carriers;
7) retaining federal COLR obligations while denying
federal high-cost support;
8) regulating information services provided by wireless
CETCs;
9) making USF support available exclusively to ILECs
in their service areas;
10) eliminating the identical support rule and adopting
a single-winner reverse auction to award support to wireless
CETCs;
11) budgeting insufficient USF support to wireless
CETCs;
12) failing to address the need for a USF support
mechanism for insular areas;
3

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 29
13) retroactively reversing past approvals so as to
curtail USF revenues that certain small LECs relied upon to
construct existing networks and operations;
14) prescribing ICC revisions including a “bill-and-keep”
rate of zero for all intercarrier traffic;
15) imposing carrier or quasi-carrier status on ESPs for
purposes of its ICC and “phantom traffic” rules;
16) imposing an obligation barring call blocking on VoIP
providers;
17) allowing ILECs to impose end-user surcharges and
ILECs but not CLECs to receive CAF support for some, but not
all, lost ICC revenues; and
18) infringing Tribal sovereignty.
Petitioners’ subsequent briefs will describe these issues
in more detail; not all Petitioners will join in all arguments.

STATEMENT OF THE CASE

The Order resulted from a notice-and-comment
rulemaking under the Act, 47 U.S.C. §254(a), and the APA, 5
U.S.C. §553. The FCC released an NPRM on February 9, 2011,
4

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 30
consolidating seven long-pending proceedings with it, for the
stated purpose of modernizing and refocusing USF and ICC “to
make affordable broadband available to all Americans.”
Connect America Fund, 26 F.C.C.R. 4554, 4560 (2011)
(“NPRM”).
The FCC received (1) four rounds of comments, Order at
Appendix J, including on a filing by state members of the
Board at the FCC’s request and other proposals by price-cap
companies and RLEC associations,2 Further Inquiry into
Certain Issues in the USF-ICC Transformation Proceeding, 26
F.C.C.R. 11112 (WCB 2011) and (2) oral and written ex parte
presentations submitted until days before it adopted rules.
Order, ¶12.
The Order amended Parts 0, 1, 36, 51, 54, 61, 64, and 69
of the Rules, Order, ¶1428, and disposed of many other

2 Price-cap carriers are larger carriers that serve both
urban/suburban and rural areas, and are subject to incentive
regulation. Order, ¶21. RLECs are mostly rural carriers,
whose interstate rates are regulated under a traditional rate
base/return methodology.
5

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 31
pending proceedings, including petitions for waivers and for
declaratory rulings. Id. ¶¶979, 1003-1007, 1415-1427.

STATEMENT OF FACTS

I.

INTRODUCTION

Telephone calls, whether across the street, the Nation, or
the world, use the Public Switched Telephone Network (PSTN),
a collection of carrier-owned networks. The calling party pays
one carrier to complete the call, but calls often travel across
more than one network. When that happens, carriers
transmitting a call may receive payments from other carriers
using their networks. AT&T Corp. v. FCC, 292 F.3d 808, 809
(D.C. Cir. 2002). This is intercarrier compensation. The FCC
historically regulated rates for interstate ICC and states
regulated intrastate ICC.
National policy, since 1934, has been “to make available,
so far as possible, to all the people of the United States … a
rapid, efficient … communication service with adequate
facilities at reasonable charges.” 47 U.S.C. §151. This is
universal service.
6

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 32
This Court recognizes that “… it is generally more
expensive for a telephone company to provide service in a rural
area, where customers are dispersed, than it is to provide the
same service in an urban area, where customers are more
concentrated.” Qwest Corp. v. FCC, 258 F.3d 1191, 1195 (10th
Cir. 2001). Carriers serving an area where network costs are
high may get federal and/or state support to make service
more affordable. The more customers who can afford service,
the greater the “network effect”; i.e., the network is more
valuable to each user the more other users are connected.3
II.

STATUTORY BACKGROUND

This case concerns the 1996 Act,
an unusually important legislative
enactment … [whose] primary purpose was to
reduce regulation and encourage “the rapid
deployment of new telecommunications
technologies.” The major components of the
statute have nothing to do with the Internet;
they were designed to promote competition in
the local telephone service market, the

3 See, e.g., U.S. v. Microsoft, 253 F.3d 34, 49 (D.C. Cir.
2001).
7

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 33
multichannel video market, and the market
for over-the-air broadcasting.4
The 1996 Act introduced “two new important regulatory
classifications,” Time Warner Telecom v. FCC, 507 F.3d 205,
213 (3d Cir. 2007), by defining “telecommunications service,” a
common-carrier service subject to regulation under Title II, 47
U.S.C. §153(53); and “information service,” a service exempt
from Title II regulation, id. §153(24). Federal-State Joint Board
on Universal Service, 13 F.C.C.R. 11501, 11508 (1998). The
definition of “telecommunications carrier” provided that such a
carrier “shall be treated as a common carrier … only to the
extent that it is engaged in providing telecommunications
services.” 47 U.S.C. §153(51).
The 1996 Act redesignated most of Title II’s existing
provisions as “Part 1− Common Carrier Regulation,” and
restructured regulation of the local telecommunications
marketplace by adding a new “Part II – Development of
Competitive Markets,” which gave all telecommunications
carriers a duty to interconnect their networks. 47 U.S.C.

4 Reno v. ACLU, 521 U.S. 844, 857-58 (1997).
8

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 34
§251(a). LECs, which are local telephone companies, have
additional duties including reciprocal compensation. 47 U.S.C.
§251(b). Larger ILECs (LECs in existence before 1996) have
further obligations, including to open their networks to
competitors, and to negotiate in good faith with any requesting
telecommunication carrier the terms of reciprocal
compensation and interconnection agreements. See generally
47 U.S.C. §251(c); cf. 47 U.S.C. §251(f)(1).
Part II continued Section 152(b)’s joint federal-state
regulation of telecommunications – today called “cooperative
federalism.” BellSouth Telecommunications v. Sanford, 494
F.3d 439-40, 448-49 (4th Cir. 2007). Although Ҥ201(b)
explicitly gives the FCC jurisdiction to make rules governing
matters to which the 1996 Act applies,” it is “the States that
will … implement that methodology, determining the concrete
results in particular circumstances.” AT&T Corp. v. Iowa
Utilities Bd., 525 U.S. 366, 380, 384 (1999)
Relationships between CLECs (newer companies that
compete with the older ILECs) and ILECs are governed by
“interconnection agreements” negotiated between carriers and
9

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 35
approved by the relevant state commissions. If negotiations fail,
states conduct arbitrations, applying FCC rate-setting
methodologies to set rates, subject to federal district court
review. AT&T v. Illinois Bell, 349 F.3d 402, 405 (7th Cir. 2003);
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996, 11 F.C.C.R. 15499, 15554-61
(1996) (“Local Competition Order”). Under this authority, state
commissions “establish any rates” in dispute between the
parties, ensuring that they meet specific statutory pricing
standards. 47 U.S.C. §252(d)(1); Iowa Utilities Bd., 525 U.S. at
384.
The 1996 Act obliged LECs to “establish reciprocal
compensation agreements for the transport and termination of
telecommunications,” 47 U.S.C. §251(b)(5), and section 252
requires states to ensure that reciprocal compensation rates
allow for “the mutual and reciprocal recovery by each carrier of
costs associated with the transport and termination on each
carrier’s network facilities of calls that originate on the
network facilities of the other carrier.” 47 U.S.C.
§252(d)(2)(A)(i).
10

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 36
States must base reciprocal compensation rates on “a
reasonable approximation of the additional costs of
terminating such calls.” Id. §252(d)(2)(A)(ii). “[A]rrangements
that afford the mutual recovery of costs through the offsetting
of reciprocal obligations, including arrangements that waive
mutual recovery (such as bill-and-keep arrangements)” are not
precluded. Id. §252(d)(2)(B)(i).
Congress recognized that competition in local
communications markets would threaten the existing revenue
flows that traditionally supported universal service. Therefore,
the 1996 Act both codified universal service policy and created
a statutory USF program in Parts I and II of Title II. See 47
U.S.C. §§214(e), 254.
The 1996 Act mandates that only common carriers
designated as ETCs under Section 214 by states5 are eligible
for USF support; they must offer FCC-defined supported
telecommunications services throughout their service areas.
Id. §§214(e)(1)(A), 254(c)(1). States may designate more than

5 The FCC makes ETC designations if the state lacks
jurisdiction. 47 U.S.C. §214(e)(6).
11

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 37
one ETC per RTC-served area, but must do so in an area not
so served. See id. §§214(e)(2), 254(c)(1). An ETC can use USF
support “only for the provision, maintenance, and upgrading
of facilities and services for which the support is intended.” Id.
§254(e).
Service areas are established by states, or by the FCC
where the ETCs are not state regulated. Id. §214(e)(5). An
RTC’s “service area” is defined as its “study area,” unless the
FCC and the state, after considering the Board’s
recommendation, establish a different definition. 47 U.S.C.
§214(e)(5).
Congress established the Board, composed of state and
federal regulators and a consumer advocate, to “coordinate
federal and state regulatory interests” related to universal
service. Texas Office of Public Utility Counsel v. FCC, 183 F.3d
393, 406 (5th Cir. 1999). It defined universal service as “an
evolving level of telecommunications services that the [FCC]
shall establish periodically … taking into account advances in
telecommunications and information technologies and
services,” and directed the Board to recommend, and the FCC
12

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 38
to establish, the definition of the telecommunications services
supported by the USF. 47 U.S.C. §254(c)(1). When defining
the supported services, the Board and the FCC must consider,
inter alia, the extent to which the telecommunications services:
are essential to education, public health, or public safety; have
been subscribed to by a substantial majority of residential
customers; and “are being deployed in public
telecommunications networks by telecommunications carriers.”
Id. §254(c)(1)(A)-(C).
The FCC’s USF rules must be based on six statutory
universal service principles and additional Board-
recommended principles adopted by the FCC. Id. §254(b)(1)-
(7). These principles include, inter alia, that “[q]uality services
should be available [and] affordable”; services in all areas of
the Nation should be “reasonably comparable” to services
available in cities, at “reasonably comparable rates”; and
“[t]here should be specific, predictable, and sufficient …
mechanisms to preserve and advance universal service.” See
also Qwest Corp. v. FCC, 398 F.3d 1222, 1234 (10th Cir. 2005).
13

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 39
Separately, §254(h) authorized the FCC to designate by
rule “special services,” including advanced
telecommunications and information services, to which “public
institutional telecommunications users” (schools, libraries,
and rural healthcare providers) were to have access at
discounted prices. 47 U.S.C. §254(c)(3), (h)(2).
The miscellaneous provisions of Title VII of the 1996 Act
included §706, which provided:
The [FCC] and each [s]tate commission with
regulatory jurisdiction over
telecommunications services shall encourage
deployment on a reasonable and timely basis
of advanced telecommunications capability to
all Americans … by utilizing … price cap
regulation, regulatory forbearance, measures
that promote competition in the local
telecommunications market, or other
regulating methods that remove barriers to
infrastructure investment.
1996 Act, Pub. L. No. 104-104, Title VII, §706(a), 110 Stat. 56,
153 (1996). This section was not an amendment to the 1934
Act, but was codified in the notes to 47 U.S.C. §157 until 2008,
when it was amended and codified at 47 U.S.C. §1302 by the
Broadband Data Improvement Act. Pub. L. No. 110-385, 122
Stat. 4096 (2008).
14

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 40
III.

REGULATORY BACKGROUND

A.

ICC

Telecommunications networks provide inter- and
intrastate communications. Consequently, state and federal
governments share jurisdiction over ICC-related issues.
In 1930, the Supreme Court held that regulators must
allocate (i.e., “separate”) the costs of commonly used facilities
between jurisdictions for ratemaking purposes. Smith v.
Illinois Bell Telephone Co., 282 U.S. 133, 148 (1930).
In 1934, Congress granted the FCC jurisdiction over
interstate and international communications but preserved
state authority over intrastate communications. 47 U.S.C.
§152(b).
After the 1984 AT&T divestiture, the FCC established
“access tariffs” under which IXCs compensate LECs for using
their networks to originate and terminate interstate toll calls,
and most states adopted similar schemes for intrastate calls.
AT&T v. FCC, 349 F.3d 692 (D.C. Cir. 2003).
Access charge tariffs, along with the rise of IXCs, created
the ICC traffic flows that exist today. With toll calls, one
15

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 41
carrier originates a call and delivers it to a second carrier (the
designated IXC), and a third carrier terminates the call. The
IXC pays compensation to both the originating LEC
(originating access) and to the terminating LEC (terminating
access). Originating access charges have been paid in toll
traffic because LEC-provided originating access is an input to
the IXC’s telephone toll service. The IXC uses originating
access to reach its own end-user customer, with whom it has
a billing relationship.
The 1996 Act required “reciprocal compensation”
arrangements for the transport and termination of
telecommunications. The FCC originally decided that
“reciprocal compensation obligations” applied only to local
traffic and, except for traffic to or from a CMRS (wireless
telecommunications) network, state commissions had the
authority to determine the geographic areas considered “local.”
Local Competition Order, 11 F.C.C.R. at 16013. It also ruled
that CMRS traffic originating and terminating within the same
MTA would be subject to reciprocal compensation. Id. at
16014.
16

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 42
The FCC adopted symmetrical reciprocal compensation
rules, with the ILEC’s prices serving as a proxy for the other
telecommunications carrier’s “additional costs” of transport
and termination. Id. at 16040.
State commissions were to establish an ILEC’s transport
and termination rates in arbitrations based on default price
“ceilings and ranges” until they either established their own
rates using the FCC’s TELRIC pricing methodology, or a bill-
and-keep arrangement where carrier rates were symmetrical
and traffic was in balance. Id. at 15883-884, 16024.
The Eighth Circuit vacated these default rates, based on
the Supreme Court’s determination that only states may set
rates under sections 251 and 252. Iowa Utilities Bd. v FCC,
219 F.3d 744, 757 (8th Cir. 2000).
In Verizon, the Supreme Court reiterated that Congress
established “a hybrid jurisdictional scheme with the FCC
setting a basic, default methodology for use in setting rates
when carriers fail to agree, but leaving it to state utility
commissions to set the actual rate.” Verizon Communications v.
FCC, 535 U.S. 467, 489 (2000).
17

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 43
The FCC subsequently made “incremental efforts” to
modify its ICC regime, NPRM, 26 F.C.C.R. at 4574, and issued
a series of rulings that eventually resulted in rate caps for
reciprocal compensation for dial-up calls to ISPs. Core
Communications v. FCC, 592 F.3d 139, 141-42 (D.C. Cir. 2010).
B.

USF

The FCC adopted “competitive neutrality” as a seventh
universal service principle in 1997. Federal-State Joint Board
on Universal Service, 12 F.C.C.R. 8776, 8801 (1997) (“First USF
Order”). The FCC wanted rules that would “neither unfairly
advantage nor disadvantage one provider over another, and
neither unfairly favor nor disfavor one technology over
another.” Id. at 8801. It made all telecommunications
carriers, including wireless carriers, eligible for USF support
regardless of technology. Id. at 8858.
The FCC established the USF as the explicit support
mechanism. Id. at 8780. It defined nine “core” or “designated”
telecommunications services or functionalities eligible for USF
support. Id. at 8807, 9323-24. USF is funded by
contributions from telecommunications carriers providing
18

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 44
interstate telecommunications services based upon their end-
user interstate revenues.6 Id. at 9173.
Concluding that “portability” was required to allocate
USF support in a competitively neutral manner, the FCC
adopted the “identical support rule” in 1999, under which a
CETC would receive the same amount of USF support on a per
line basis as the ILEC with which it competed. Federal-State
Joint Board on Universal Service, 14 F.C.C.R. 20432, 20480
(1999).
In March 2002, the FCC found that cable Internet access
service was an information service.7 In July 2002, the Board
opined that, if classified as information service, broadband
Internet access service could not be included within the
statutory definition of USF-supported services, because §254
“limits the definition of supported services to

6 The 1996 Act also provided that telecommunications
carriers providing intrastate services could be required by a
state to contribute to the preservation and advancement of
universal service in the state. 47 U.S.C. §254(f).
7 High-Speed Access to the Internet Over Cable and Other
Facilities, 17 F.C.C.R. 4798, 4822-23 (2002), aff’d, NCTA v.
Brand X Internet Servs., 545 U.S. 967 (2005).
19

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 45
telecommunications services.” Federal-State Joint Board on
Universal Service, 17 F.C.C.R. 14015, 14103 (Jt. Bd. 2002).
The FCC then issued a series of decisions classifying other
broadband Internet access services as information services.8
In 2007, the Board recommended, inter alia, that the
FCC revise the definition of supported services to include
broadband service, finding that it met the statutory criteria for
inclusion. See High-Cost Universal Service Support, 22 F.C.C.R.
20477, 20491-92 (Jt. Bd. 2007).
The FCC rejected the Board’s recommendations the next
year, High-Cost Universal Service Support, 24 F.C.C.R. 6475,
6492 (2008), and sought public comment on three draft USF
reform proposals that had been circulated among the FCC
Commissioners, but not adopted. Id. at 6493. Two proposals
would have required all high-cost support recipients to offer

8 Appropriate Framework for Broadband Access to the
Internet Over Wireline Facilities, 20 F.C.C.R. 14853, 14862-65
(2005), aff’d, Time Warner Telecom v. FCC, 507 F.3d 205 (3d
Cir. 2007); Classification of Broadband Over Power Line
Internet Access Service as an Information Service,
21 F.C.C.R.
13281, 13286 (2006); Appropriate Regulatory Treatment for
Broadband Access to the Internet Over Wireless Networks,
22
F.C.C.R. 5901-12 (2007).
20

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 46
broadband Internet access service to all customers as a
condition of receiving support. Id. at 6500, 6700.
C.

Broadband Plan

In response to the American Recovery and Reinvestment
Act of 2009, the FCC delivered its staff-authored 350-page
National Broadband Plan to Congress in spring 2010. 2010
WL 972375, at *1 (2010) (Broadband Plan). See also Joint
Statement on Broadband, 25 F.C.C.R. 3420, 3420 (2010).
High among its recommendations to promote universal
broadband deployment, the Broadband Plan called for a
“comprehensive reform” of USF and ICC. 2010 WL 972375, at
*2, *5, *116.
The Broadband Plan deemed USF restructuring
necessary because “the current USF was not designed to
support broadband directly [with some exceptions] ….” 2010
WL 972375, at *121. Despite recognizing that “broadband is
not a supported service,” id. at *125, the Broadband Plan
recommended replacing the high-cost program with two new
funds: a CAF that would shift $15.5 billion over the next
decade from supporting existing telephone networks to direct
21

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 47
support for broadband networks, and a Mobility Fund to
provide “targeted funding” for mobile broadband networks. Id.
at *5.
The Broadband Plan stated that the “current per-minute
ICC system was never designed to promote deployment of
broadband networks.” Id. at *125. It found the ICC system
unsustainable in an all-broadband IP world where traffic
exchange payments are “typically based on charges for the
amount of bandwidth consumed per month.” Id.
It also stated that the ICC regime created “disincentives
to migrate to all IP-networks[,]” and that continued declines in
ICC could hamper broadband investment. Id. at *126. It
called for ICC restructuring to eliminate per-minute charges.
Id. at *117.
The Broadband Plan listed over 60 initiatives that the
FCC could undertake to implement its recommendations. It
also acknowledged that the classification of broadband
services as information services created uncertainty
surrounding the FCC’s jurisdiction to implement this
broadband agenda. Id. at *299-301.
22

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 48
D.

Comcast Corp. v. FCC


Shortly after Congress received the Broadband Plan, the
D.C. Circuit held that the FCC, having conceded it lacked
express statutory jurisdiction, was also without Title I
ancillary jurisdiction to impose the broadband requirements it
had adopted. Comcast Corp. v. FCC, 600 F.3d 642, 644-47,
651-61 (D.C. Cir. 2010). The FCC’s Chairman said before
Congress that Comcast cast “serious doubt” on their ability to
implement the Broadband Plan.9
The FCC then initiated a proceeding to determine
whether it has authority to promote investment and
innovation in what it had previously called “broadband
Internet access service.” Framework for Broadband Internet
Service, 25 F.C.C.R. 7866, 7866-87 & n.1 (2010). Specifically
questioning whether it had statutory authority under §254 of
the Act and §706 of the 1996 Act to restructure USF to
support broadband Internet service, id. at 7880-83, but

9 Reviewing the National Broadband Plan: Hearing before
the Senate Comm. on Commerce, Science, and Transportation,
111th Cong. 44, 69, 95 (2010).
23

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 49
without waiting to answer that question, the FCC moved to
implement the Broadband Plan.
IV.

THE NPRM


On February 9, 2011, the FCC issued the NPRM to
“fundamentally modernize” the USF and ICC system as
recommended by the Broadband Plan. NPRM, 26 F.C.C.R. at
4557. The FCC sought to “refocus USF and ICC to make
affordable broadband available to all Americans and accelerate
the transition from circuit-switched to IP networks.” Id. at
4560.
With barely a mention of Comcast,10 the FCC opined that
it could extend USF support to “broadband services offered as
information services” either under §§254 and 706, or pursuant
to Title I ancillary authority, or both. Id. at 4577. The FCC
solicited public comment on its opinion, as well as on any
other legal theories under which it could provide USF support
to broadband. Id. at 4577, 4582. The FCC also invited
comment on its authority to regulate intrastate access, and if

10 The FCC mentioned Comcast once, but not its holding.
NPRM, 26 F.C.C.R. at 4580 & n.95.
24

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 50
so, on its authority to impose a bill-and-keep rate of zero for
ICC.
V.

THE ORDER


The FCC proceeded to implement the USF and ICC
recommendations of the Broadband Plan and “to support
broadband networks, regardless of regulatory classification.”
Order, ¶68. It adopted the Board’s recommended eighth
universal service principle, that support “should be directed
where possible to networks that provide advanced services, as
well as voice services.” Order, ¶65. The FCC held that §254
and §706 empowered it to provide USF support for
telecommunications services and to “condition” the receipt of
that support on the deployment of broadband networks.
Order, ¶60. The FCC did not add broadband to its list of USF-
supported services, id. ¶65, but required telecommunications
carriers that receive USF support both to “invest in modern
broadband-capable networks,” id., and to offer broadband
services meeting “basic performance requirements,” “at rates
reasonably comparable to offerings of comparable broadband
services in urban areas.” Id. ¶86.
25

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 51
On ICC, the FCC abandoned the current per-minute ICC
compensation system and imposed a bill-and-keep rate of zero
for all traffic. Order, ¶741.
A.

USF Rule Changes

The FCC consolidated its definition of USF-supported
services into a single service called “voice telephony”
regardless of technology. Order, ¶77. It adopted a new rule
restating the §254(e) restriction that support be used “only
for … facilities and services for which the support is intended,”
but added that support can be used for “investments in plant
that can … provide access to advanced telecommunications
and information services.” Id. Appendix A (§54.7).
The FCC prescribed a $4.5 billion target budget for USF
high-cost support programs. Order, ¶125. The FCC stated
this would ensure a “specific, predictable and sufficient” USF
support program as envisioned by §254(b)(5) of the Act. Id.
¶123.
The FCC allocated $1.8 billion in CAF support to areas
served by price-cap ILECs. Under CAF Phase I, existing high-
cost support to these carriers is frozen, but up to $300 million
26

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 52
of new funding will be available to them, but not to CETCs, to
promote broadband deployment. Id. ¶¶22, 25.
CAF II will develop a cost model to estimate the support
necessary to fund broadband in high-cost areas. Order, ¶23.
Following adoption of the cost model, the incumbent price-cap
carrier “shall be the presumptive recipient of the model-
derived support amount for the five-year CAF Phase II period,”
Order, ¶171, provided it accepts a state-level broadband
deployment commitment. Id.11
Unlike price-cap ILECs, RLECs remain under the current
high-cost support program, but with many changes. In
general, these changes cap or eliminate many of the
components that comprise the high-cost support program.
The FCC intends these changes to transition USF support to
RLECs towards incentive-based regulation. Id. ¶195.
The Order imposed limits on the amount RLECs can
recover for certain capital and operations expenses. Id. ¶214.

11 If a price-cap incumbent declines to receive CAF Phase
II support, the FCC expects to use competitive bidding to
disburse support. Order, ¶172.
27

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 53
The FCC delegated authority to its WCB to establish such
limits, updated annually, for each RLEC, using a regression
methodology intended to compare an RLEC’s costs to those of
similarly-situated carriers. Id. ¶¶217, 218.
The FCC capped certain support for corporate operations
expenses, and modified the limitations formula for all
corporate operations expenses by using the most recent data
and adding a “growth factor.” Order, ¶¶229-231.
Finding residential rates in some rural areas lower than
urban rates, the FCC limited support where end-user rates are
below a specified “urban rate floor.” Id. ¶238. The rate floor
will be phased in and then adjusted annually based on data
collected by the FCC. Id. ¶239.
SNA, which is support for RLECs who make significant
network investments, is phased out and eliminated. Order,
¶250. The FCC found that many RLECs qualifying for SNA did
so “due to significant loss of lines, not because of significant
increases in investment.” Id. ¶249.
Finding that modern IP networks employ equipment
“which tend[s] to be cheaper and more efficiently scaled to
28

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 54
smaller operating sizes” than the legacy equipment, id. ¶253,
the FCC eliminated LSS, which allowed the smallest RLECs to
receive increased support. Id. ¶257. It allowed some limited
support through the CAF’s ICC recovery mechanism. Id. ¶255.
HCLS is the program that provides support to RLECs for
the “last mile” of connection. While the FCC previously had
capped the HCLS program overall, the FCC had not limited
support available to individual service areas. Id. ¶272. But
finding that only a few ILECS and CLECs serving less than
5,000 customers in aggregate received support that exceeded
$250 per month per line, id. ¶273, the FCC concluded that “to
implement responsible fiscal limits,” total high-cost support
per line would be limited to $250 per month. Id. ¶274.
The FCC found that, as a result of these high-cost
support program rule changes as applied to RLECs, “almost
34 percent or rate-of-return carriers will see no reductions
whatsoever, and more than 12 percent of providers will see an
increase in high-cost universal service receipts.” Id. ¶290.
29

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 55
The FCC eliminated all support to study areas where 100%
of the territory is already served by one or more unsubsidized
providers. Id. ¶¶195, 281.
CETCs’ existing support was capped effective December
31, 2011, and will be phased-out over five years. Id. ¶519.
CETCs are also subject to the $250/month/line cap. Id.
¶¶274, 516.
As recommended by the Broadband Plan, the FCC
established a Mobility Fund to expand the coverage of mobile
broadband networks in unserved areas. Order, ¶28. Having
capped USF support for CETCs in 2010, the FCC limited
Phase I of the Mobility Fund to a one-time infusion of $300
million. Id. ¶314. Mobility Fund Phase II provides $500
million per year for ongoing support of mobile services. Id.
¶493-494.
Eliminating prior USF support to multiple CETCs in an
area, the FCC limited Mobility Fund Phase I support to only
one wireless CETC per area, Order, ¶316, through a reverse
auction. Id. ¶322. The FCC determined that it would identify
areas eligible for Mobility Fund Phase I support at the census
30

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 56
block level. Order, ¶332. Having opted to distribute support
to wireless CETCs by reverse auction, the FCC concluded its
identical support rule “is no longer necessary or in the public
interest,” and repealed it. Id. ¶ 502.
A Remote Areas Fund of at least $100 million annually
will support customers in areas with extremely high
broadband deployment costs to obtain broadband “through
alternative technology platforms such as satellite and
unlicensed wireless.” Id. ¶533.
The FCC had sought comment “on whether [it] should
reserve a defined amount of funds in the CAF for insular
areas,” NPRM, 26 F.C.C.R. at 4655, but did not address the
issue in the Order. See Order, ¶481 n.790.
The FCC established a waiver mechanism “under which a
carrier can seek relief from some or all of [its] reforms if the
carrier can demonstrate the reduction in existing high-cost
support would put consumers at risk of losing voice service,
with no alternative terrestrial providers.” Id. ¶32. The FCC
stated that this waiver test will consider “not only all revenues
derived from network facilities that are supported by universal
31

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 57
service but also revenues derived from unregulated and
unsupported services.” Id.540.
Finally, the rules do not provide additional funding for
carriers serving Tribal lands. The Order recognizes that Tribal
lands are typically “remote and underserved areas,” Order, ¶28,
with “significant telecommunications deployment and
connectivity challenges,” id. ¶481, and that a “deep digital
divide … persists between the Native Nations of the United
States and the rest of the country” such that “[b]y virtually any
measure, communities on Tribal lands have historically had
less access to telecommunications services than any other
segment of the population.” Id. ¶636 & n.1048. Moreover,
this divide extends beyond advanced telecommunications
services, as “[m]any residents of Tribal lands lack not only
broadband access, but even basic telephone service.” Id. ¶636.
The FCC has recognized that “various characteristics of
Tribal lands may increase the cost of entry and reduce the
profitability of providing service, including … [t]he lack of basic
infrastructure in many tribal communities” and “a high
32

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 58
concentration of low-income individuals with few business
subscribers.” Id. ¶482 (citation omitted).
The FCC concluded that “greater financial support …
may be needed in order to ensure the availability of broadband
in Tribal lands.” Id. ¶479. Despite providing wireless carriers
(but not wireline carriers) in Tribal areas a one-time $50
million award and ongoing funding, this is significantly less
funding than wireless carriers serving Tribal lands received
under the legacy program. Id. ¶¶479, 485.
Wireline carriers serving Tribal lands (which now must
provide broadband in addition to voice service) are subject to
the same rule changes as wireline carriers serving non-Tribal
lands. The FCC stated those changes reduce USF support to
more than 65 percent of RLECs. Order ¶290.
B.

ICC Rule Changes

The Order preempted state regulation of intrastate rates,
abolished the current per-minute compensation system and
adopted a “uniform national bill-and-keep framework.” Order,
¶34.
33

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 59
The new rules transition intrastate and interstate
termination rates to a national bill-and-keep rate of zero for all
traffic. Order, ¶741. This “bill and keep” rate applies to all
telecommunications, including local traffic and traffic
previously “subject to the interstate and intrastate access
regimes.” Id. ¶769.
Finding that “both parties generally benefit from
participating in a call, and … should split the cost of the call,”
id. ¶744, the FCC abandoned the traditional “calling party
pays” regime for one in which “carriers … recover the cost of
their network through end-user charges” on their own
customers. Id. ¶742.
It immediately banned LEC rate increases for interstate
origination and termination services, intrastate termination
services, and, for price cap ILECs, intrastate origination
services. Order, ¶801. It set a final rate of zero for core
terminating access rate elements. It held that originating
access ultimately should fall under bill-and-keep but only
reduced certain originating transport elements, while seeking
34

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 60
comment “on the ultimate transition away from” originating
access charges. Order, ¶¶777-778, 817-818.
RLEC and price-cap ILEC terminating charges (and CLEC
rates benchmarked to them) are reduced to zero over multiple
years. Intrastate terminating access rates will first be lowered
to equal interstate access rates, and then terminating
compensation rates will be lowered, in stages, to $0.0007, and
then to zero. Id. ¶801.
The FCC claimed its authority to impose these rules
“flows directly” from the §251(b)(5) duty of LECs to establish
reciprocal compensation for the transport and termination of
telecommunications, and from its §201(b) rulemaking
authority to carry out the provisions of the Act. Order, ¶760.
It acknowledged these rules supersede the traditional
access regime, which the FCC claims is preserved under
§251(g). Order, ¶764. It dismissed concerns with preemption
and rejected arguments that §251(b)(5) does not apply to
intrastate access traffic, id. ¶765, that it exceeded its authority
under §252 by setting a rate of zero, rather than only
35

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 61
establishing a methodology, and that a zero rate contravenes
applicable statutory requirements. Id. ¶774-75.
The states will no longer set intrastate ICC rates but will
oversee tariffing of the FCC’s rates during the transition, and
conduct interconnection agreement approvals and arbitrations
under §§251 and 252. Order, ¶776.
Unlike its treatment of wireline traffic, the FCC adopted
bill-and-keep as the “immediately applicable” default
compensation for all non-access (intraMTA) traffic exchanged
between LECs and CMRS providers. Id. ¶988. The FCC found
authority to adopt bill-and-keep as the federal pricing
methodology for non-access CMRS-LEC traffic in §§201(b),
251(b)(5), 252 and 332 of the Act. Id. ¶1001.
The Order allowed ILECs, exclusively, to replace some
revenues lost due to reductions in ICC revenues through a
two-component Eligible Recovery (ER) mechanism: (1) the ARC,
which allows limited rate increases on ILEC end users; and (2)
CAF support, to the extent ER exceeds allowable ARC
revenues. Id. ¶849. Carriers may receive CAF support only if
36

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 62
they fulfill existing voice mandates and newly imposed
broadband mandates. Order, ¶853.
The Commission acknowledges that these mechanisms
will not replace all the lost revenue, id. ¶848, and this limited
compensation will eventually disappear. Id. ¶905. It asserted
it “has no legal obligation to ensure that carriers recover
access revenues lost as a result of reform, absent a showing of
a taking,” Order, ¶924.
It adopted a “rebuttable presumption” that its ICC rules
allow ILECs to “earn a reasonable return on their investment,”
id., subject to a “Total Cost and Earnings Review” by which a
carrier may rebut this presumption and seek “additional
support.” Id. Carriers seeking to rebut the presumption will
bear a “heavy burden.” The analysis will examine numerous
factors, including revenues derived from other services. Order
¶¶925-926. There is no state role when intrastate rates are
involved.
The FCC established a prospective ICC regime for so-
called “VoIP-PSTN traffic,” by subjecting all such traffic to the
reciprocal compensation “framework” of §251(b)(5); adopting
37

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 63
default ICC rates for both originating and terminating “toll”
VoIP-PSTN traffic that mirror the interstate rate structure and
prices for TDM traffic, including intrastate calls; applying the
default reciprocal compensation rates to non-toll VoIP-PSTN
traffic; and allowing LECs to include default charges for toll
VoIP-PSTN traffic in their federal and state tariffs for use in the
absence of an intercarrier ICC agreement.12 Order, ¶944. The
FCC’s new regime will apply to all LECs, including wholesale
partners of VoIP providers. Id. ¶968.
The Order also affirmed §201(b)’s prohibition against
blocking of telephone traffic by telecommunications
carriers. Id. ¶974. Recognizing that some VoIP services may
be deemed “information services” rather than
“telecommunications services,” the FCC found that if such
services “are information services, we exercise our ancillary
authority and prohibit blocking of voice traffic to or from the
PSTN by those providers just as we do for carriers.” Id.

12 On reconsideration, the FCC limited its reforms to
VoIP terminating rates, until 2014. Connect America Fund, 27
F.C.C.R. 4648, 4659 (2012).
38

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 64
The FCC also adopted rules to address “phantom traffic,”
which it defined as “calls for which identifying information is
missing or masked in ways to frustrate intercarrier billing.” Id.
33. It required “originating” telecommunications carriers and
interconnected VoIP service providers, as well as “intermediate”
providers, to transmit specified call information to subsequent
providers in the call path. Id. at 18277 (47 C.F.R. §§64.100(f),
64.1601(a)).

STANDARD OF REVIEW

This Court reviews an agency’s interpretation and
application of a statute it administers under the two-step
approach of Chevron USA v. Natural Resources Defense Council,
467 US 837, 842-843 (1984). “When Congress has spoken to
the precise question at issue,” this Court gives effect to that
express intent. Id. However, “if the statute is silent or
ambiguous,” the Court will “defer to the agency’s
interpretation, if it is reasonable.” Id. (citations omitted).
“Deference to [the agency’s] statutory interpretation is
called for only when the devices of judicial construction have
39

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 65
been tried and found to yield no clear sense of congressional
intent.” General Dynamics Land Sys. v . Cline, 540 U.S. 581,
600 (2004). In addition, “[a] court’s prior judicial construction
of a statute trumps an agency construction … [if the prior]
construction follows from the unambiguous terms of the
statute and thus leaves no room for agency discretion.” Brand
X, 545 U.S. at 982.
Even where a statute is ambiguous, the Court will not
defer when the agency’s decision “was not based on [its] own
judgment but rather on the unjustified assumption that it was
Congress’ judgment that such [an outcome is] desirable or
required.” PSEG Energy Res. & Trade LLC v. F.E.R.C., 665 F.3d
203, 209 (D.C. Cir. 2011) (citations omitted). Nor is an
agency’s statutory interpretation “entitled to deference absent
a delegation of authority from Congress to regulate in the
areas at issue.” American Library Ass’n v. FCC, 406 F.3d 689,
699 (D.C. Cir. 2005).
Deference does not extend to an agency interpretation
that “raises serious constitutional questions” or is
“conclusively unconstitutional.” U.S. West v. FCC, 182 F.3d
40

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 66
1224, 1231 (10th Cir. 1999). “In all pre-emption cases … we
‘start with the assumption that the historic police powers of
the States were not to be superseded … unless that was the
clear and manifest purpose of Congress.’” Medtronic v. Lohr,
518 U.S. 470, 485 (1996).
Although a court will not substitute its judgment for that
of the agency, its review still must be searching and must
ensure a rational connection between the facts found and the
conclusions made. Marsh v. Oregon Natural Res. Council, 490
U.S. 360, 378 (1989). “An agency’s action will be set aside as
unlawful if [the Court is] able to discern the agency relied on
factors which Congress did not intend it to consider, entirely
failed to consider an important aspect of the problem, offered
an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of agency
expertise.” Thomas Brooks Chartered v. Burnett, 920 F.2d 634,
643-44 (10th Cir. 1990).
The agency also acts arbitrarily if it fails “to engage the
arguments raised before it.” NorAm Gas Transmission Co. v.
41

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 67
FERC, 148 F.3d 1158, 1165 (D.C. Cir. 1990). Agencies must
apply their own precedents consistently or reasonably explain
any departures from those precedents. FCC v. Fox Television
Stations, 556 U.S. 502, 515 (2009). Finally, while the Court
will sustain agency decisions supported by substantial
evidence, “[s]ubstantiality of evidence must take into account
whatever in the records fairly detracts from its weight,”
Universal Camera Corporation v. NLRB, 340 U.S. 474, 488
(1951), such that an agency must “explain why it rejected
evidence that is contrary to its findings,” Carpenters and
Millwrights v. NLRB, 481 F.3d 804, 809 (D.C. Cir. 2007).
An agency is not entitled to deference insofar as it has
failed to abide by the APA’s notice and comment obligations.
North American Coal Corporation v. Director, Office of Workers’
Compensation Programs, 854 F.2d 386, 388 (10th Cir. 1988).
An agency violates due process by commingling
rulemaking and rate adjudications without providing a
meaningful opportunity to be heard. Sierra Club v. Costle, 657
F.2d 298 (D.C. Cir. 1981).


42

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 68






Respectfully submitted,



/s/ Russell M. Blau

Russell M. Blau
Bingham McCutchen, LLP
2020 K Street NW
Washington, DC 20006
Tel. (202) 373-6000
russell.blau@bingham.com


On behalf of the Joint
Petitioners listed on the cover
of this filing


September 24, 2012
43

Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 69

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 6,748
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 Symantec
Endpoint Protection, version 11, updated on September 24,
2012, and according to the program is free of viruses.

/s/ Russell M. Blau

September 24, 2012
44


Appellate Case: 11-9900 Document: 01018920688 Date Filed: 09/24/2012 Page: 70

CERTIFICATE OF SERVICE



I hereby certify that, on September 24, 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/ Russell M. Blau

August 24, 2012


45


Note: We are currently transitioning our documents into web compatible formats for easier reading. We have done our best to supply this content to you in a presentable form, but there may be some formatting issues while we improve the technology. The original version of the document is available as a PDF, Word Document, or as plain text.

close
FCC

You are leaving the FCC website

You are about to leave the FCC website and visit a third-party, non-governmental website that the FCC does not maintain or control. The FCC does not endorse any product or service, and is not responsible for, nor can it guarantee the validity or timeliness of the content on the page you are about to visit. Additionally, the privacy policies of this third-party page may differ from those of the FCC.