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

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Released: August 27, 2012
Federal Communications Commission
Washington, D.C. 20554


August 16, 2012

Elizabeth Shumaker, Clerk
United States Court of Appeals
for the Tenth Circuit
Byron White U.S. Courthouse
1823 Stout Street
Denver, CO 80257

Re: In re FCC 11-161, Case No. 11-9900

Dear Ms. Shumaker:

Earlier today, the Federal Communications Commission (“FCC”) filed a Motion
Regarding the Briefing Format for Respondents and their Supporting Intervenors. That motion
sets forth the FCC’s proposed briefing format and filing deadlines in the aforementioned case, as
well as a proposed briefing format for the agency’s supporting intervenors.

After filing this motion, the FCC’s supporting intervenors notified us that they failed to
include proposed filing deadlines for the submission of their briefs. Accordingly, on behalf of
our supporting intervenors, the FCC submits an amended copy of that motion, which now
includes the following text on page 10:

Finally, intervenors in support of respondents request that their briefs be due three
weeks after the last of the uncited Commission briefs are filed, which would be
March 27, 2012 under the Commission’s proposal. Three weeks would give the
respondents’ intervenors sufficient time to coordinate among the signatories to the
briefs and to minimize any repetition of arguments found in the eleven briefs that
the Commission proposes to file on March 6, 2012.

I apologize for any inconvenience that our supporting intervenors’ omission might
have caused.








Sincerely,

/s/
Maureen
K.
Flood







Maureen
K.
Flood,
Counsel
Federal
Communications
Commission
















IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT









)
IN RE: FCC 11-161




)
No. 11-9900








)

MOTION REGARDING THE BRIEFING FORMAT

FOR RESPONDENTS AND THEIR SUPPORTING INTERVENORS



In its Amended First Briefing Order dated August 7, 2012, this Court
directed the Federal Communications Commission (“FCC” or “Commission”) to
“file a motion in which it proposes the parameters (organization and length) and
dates for filing its answer briefs and any proposed intervenor brief(s) in support of
the FCC.” In response to that order, the Commission respectfully submits this
motion regarding the briefing format for respondents and their supporting
intervenors.
STATEMENT OF LIASON COUNSELS’ POSITIONS

On August 9, 2012, counsel for the FCC notified the Liaison Counsel for
Petitioners that the Commission intended to file this motion. Liaison Counsel for
Petitioners has indicated that a number of petitioners are likely to oppose the
motion. The full statement of Liaison Counsel for Petitioners regarding this
motion is attached as Exhibit A.
The Liaison Counsel for Respondents is authorized to state that the United
States, the FCC’s co-respondent in this case, supports this motion. The intervenors


2
in support of respondents identified in footnote 3 have also informed Liaison
Counsel that they support this motion.
FCC BRIEFING FORMAT PROPOSAL

The Court has indicated that its “preferred approach would be for the FCC to
file fourteen briefs that directly respond to each of the briefs filed by the petitioners
and their supporting intervenors.” Am. First Briefing Order at 7. Consistent with
the Court’s preference, the Commission proposes to file fourteen briefs, each of
which will directly respond to one of the briefs filed by the petitioners or their
supporting intervenors.1
The Commission proposes the following filing deadlines:
 On or before February 6, 2012, the FCC will file its response to the Uncited
Joint Preliminary Brief Of The Petitioners.

 On or before February 20, 2013, the FCC will file its responses to
petitioners’ Uncited Joint Intercarrier Compensation Principal Brief and
Uncited Joint Universal Service Fund Principal Brief.

 On or before March 6, 2012, the Commission will file its responses to the
eleven remaining briefs filed by petitioners and their supporting intervenors.

1 Pursuant to Fed. Rul. App. Proc. 27, the FCC on August 10, 2012 filed a consent
motion to transfer a challenge to the Second Order on Reconsideration of the
USF/ICC Transformation Order (the subject of this consolidated case) from the
D.C. Circuit to this Court. See Windstream Corp. and Windstream Commc’ns, Inc.
v. FCC
, D.C. Cir. No. 12-1331. A copy of that motion is attached as Exhibit B.
The FCC has no objection to accommodating Windstream’s participation in this
case, consistent with the parameters and deadlines established in the Amended
First Briefing Order, should the D.C. Circuit grant the agency’s motion to transfer
the case to this Court.


3

The deadlines proposed above reflect the fact that filing more than a dozen
briefs in this proceeding imposes an unprecedented strain on the limited resources
of the FCC’s Office of General Counsel – an office that is currently involved in
several other cases pending before the federal courts of appeals. The FCC,
moreover, faces a unique burden in this litigation. Petitioners’ fourteen briefs will
be filed by a variety of parties, and no one party will join every brief. By contrast,
the FCC alone must produce all fourteen briefs in response.
The Commission also proposes that the total word limit for its briefs should
be equal to the aggregate word limit for the opening briefs filed by the petitioners
and the briefs filed by their supporting intervenors – a total of fourteen briefs with
a total word limit of 102,710 words. The Commission proposes that the same
aggregate word limit should apply to the fourteen briefs that the Commission files.
Under this proposal, the total number of words contained in all of the FCC’s briefs
may not exceed 102,710 words.2
In contrast to the petitioners’ briefing format, however, the Commission
proposes that none of its individual briefs would be subject to a specific word limit,
and that it be given the flexibility to determine how many words to devote to

2 At this early stage of the litigation, we request the same word limit that applies to
petitioners and their supporting intervenors out of an abundance of caution.
Nevertheless, we will endeavor to be as concise as possible in presenting our
arguments, and will make every effort not to use all of the allotted words.


4
specific issues that it would normally have if it were filing one brief governed by a
single word limit. The Commission has previously filed a single answer brief
subject to a single word limit in a number of cases in which it has had to respond to
multiple petitioners’ briefs. See, e.g., Texas Office of Pub. Util. Counsel, 183 F.3d
393 (5th Cir. 1999) (FCC files a single brief in response to 14 briefs filed by
petitioners and petitioners’ supporting intervenors); Sw. Bell Tel. Co. v. FCC, 153
F.3d 523 (8th Cir. 1998) (FCC files a single brief in response to 7 briefs filed by
petitioners and petitioners’ supporting intervenors). This approach will benefit the
Court by enabling the FCC to prepare a more tailored response to each of the briefs
filed by petitioners and their supporting intervenors without expanding the overall
volume of briefing.
Under the Commission’s briefing proposal, so long as the total number of
words in the FCC’s fourteen briefs does not exceed 102,710, the Commission
would have the discretion to allocate those words among its briefs as it sees fit.
For example, the Commission might consider it appropriate and helpful to the
Court to devote 14,000 of its words to addressing the issues raised by petitioners’
12,000-word “Joint Intercarrier Compensation Principal Brief.” This would leave
the Commission with 2,000 fewer words to respond to the remaining petitioners’
briefs. In the event that the number of words in any of the FCC’s response briefs
exceeds the word limit applicable to the corresponding petitioners’ brief, the


5
Commission will not object if the relevant petitioners move for a reasonable
expansion of the word limit for their reply brief.
The brief-specific word limits prescribed for the briefs of petitioners and
their supporting intervenors are appropriate because those parties otherwise likely
would have difficulty agreeing to an allocation of the 102,710 words that, in the
aggregate, are allotted to them. No such concern applies with respect to the
Commission, which must nevertheless address all of the matters raised in the
opposing briefs.
INTERVENORS’ BRIEFING FORMAT PROPOSAL
The Commission believes that its supporting intervenors can play an
important role in assisting the Court in understanding the complex issues presented
by this case. Given their experience as providers of various communications
services, the intervenors bring a unique perspective to this litigation. As a result,
they can contribute significantly to the Court’s understanding of how the FCC
decision at issue here will affect the communications marketplace.
The intervenors supporting respondents have asked the Liaison Counsel for
Respondents to submit the following briefing proposal to the Court.




6
Intervenors in support of respondents3 propose the following allocation of
briefs and words:
 An “Intercarrier Compensation Brief” of fewer than 13,000 words. This
brief will respond to the “Joint Intercarrier Compensation Principal Brief,”
the “Additional Intercarrier Compensation Issues Principal Brief,” the
“National Association of State Utility Consumer Advocates’ Principal
Brief,” and the “Carrier Access Charge Recovery Principal Brief.” This
brief will also respond to the “Tribal Carriers’ Principal Brief” and the two
briefs of petitioners’ intervenors, insofar as those briefs address issues
relating to intercarrier compensation.
 A “Universal Service Fund Brief” of fewer than 11,000 words. This brief
will respond to the “Joint Universal Service Fund Principal Brief,” the
“Additional Universal Service Fund Issues Principal Brief,” and the
“Wireless Carrier Universal Service Fund Principal Brief.” This Brief will
also respond to the “Tribal Carriers’ Principal Brief” and the two briefs of
petitioners’ intervenors, insofar as those briefs address issues relating to the
Universal Service Fund.
 A “Voice Over Internet Brief” of fewer than 6,000 words. This brief will
respond to “AT&T’s Principal Brief,” “Halo Wireless, Inc. and Transcom
Enhanced Services, Inc.’s Principal Brief,” and the “Voice Over Internet
Coalition Principal Brief.”4

3 The following intervenors in support of respondents join this proposal: AT&T
Inc., Central Texas Telephone Cooperative, Inc., CenturyLink, Inc., Comcast
Corporation, Cox Communications, Inc., HyperCube Telecom, LLC, Level 3
Communications, LLC, MetroPCS Communications, Inc., National Cable &
Telecommunications Association, Rural Telecommunications Group, Inc., Sprint
Nextel Corporation, T-Mobile USA, Inc., Verizon and Verizon Wireless, and
Vonage Holdings Corporation.
4 Under this proposal, each intervenor in support of respondents would be able to
join one or more of the briefs described above, in whole or in part. That is
appropriate both because several intervenors in support of respondents are
interested in issues to be addressed in more than one of the proposed intervenor
briefs and because all intervenors in support of respondents will not agree with
Footnote continues on next page.


7
Intervenors in support of respondents respectfully submit that this proposal
is reasonable notwithstanding the 8,000 words in two briefs allocated to the
intervenors in support of petitioners. The Commission’s Order establishes the
terms on which intervenors in support of respondents currently do business and
will do business in the future. Intervenors in support of respondents therefore have
an economic stake in the defense of that Order that will not be fully addressed by
the government and thus, for practical purposes, are “real parties in interest.”
United States v. Interstate Commerce Comm’n¸ 337 U.S. 426, 432 (1949);
International Union of Elec., Radio & Mach. Workers v. NLRB, 434 F.2d 473, 475
(D.C. Cir. 1970). If this Court were to agree with the arguments petitioners raise
and remand or vacate parts of the Order, many of the intervenors in support of
respondents would be significantly affected. This briefing proposal permits those
intervenors sufficient numbers of briefs and words to explain and defend their
interests in upholding the Order, which will complement rather than duplicate the
defense to be mounted by respondents themselves.
Intervenors in support of respondents have a significant stake in the outcome
of this case – no less so than petitioners themselves – but respondents’ intervenors
had no option other than intervention to protect their interests by defending the

every argument made in each of the proposed intervenor briefs – indeed, certain
intervenors will in fact disagree with some of those arguments.


8
Commission’s Order against petitioners’ challenges. Their proposal for no more
than 30,000 words is less than one-third of the words allocated to petitioners. In
other appeals in this Court, intervenors in support of agencies have been permitted
to file one or more briefs of comparable length to those filed by the petitioners,
even though the FCC was also able to do so. Thus, in Qwest Communications
International Inc. v. FCC, 398 F.3d 1222 (2005), the intervenors in support of the
respondents filed three separate briefs totaling 30,577 words,5 compared to the two
opening briefs totaling 27,873 words filed by the petitioners6 and the brief of
18,751 words filed by the FCC.7 And, in Qwest Corp. v. FCC, --- F.3d ---, 2012
WL 3156451 (10th Cir. Aug. 6, 2012), the intervenors supporting respondents filed
a consolidated brief of 13,654 words,8 compared to the opening brief of 13,814
words filed by the petitioner9 and the brief of 13,897 words filed by the FCC.10

5 See Br. for Verizon Tel. Cos. and BellSouth Corp. as Intervenors Supporting the
FCC, Nos. 03-9617, et al. (10th Cir. filed June 30, 2004) (12,161 words); Br. of
Intervenor AT&T Corp. in Supp. of the FCC, Nos. 03-9617, et al. (10th Cir. filed
Aug. 6, 2004) (7,814 words); Final Br. of Intervenor-Resp. Vermont Public Serv.
Bd., Nos. 03-9617, et al. (10th Cir. filed Aug. 4, 2004) (10,602 words).
6 See Final Br. of Pet’r Vermont Public Serv. Bd., No. 03-9617, et al. (10th Cir.
filed Aug. 4, 2004) (13,958 words); Joint Br. of Pet’rs Qwest Communications
Int’l, Inc. and SBC Communications Inc., No. 03-9617, et al. (10th Cir. filed Aug.
5, 2004) (13,915 words).
7 See Br. for FCC, Nos. 03-9617, et al. (10th Cir. filed July 1, 2004).
8 See FCC Intervenors’ Final Answer Br., No. 10-9543 (10th Cir. filed Mar. 23,
2011).
9 See Opening Br. of Pet’r Qwest Corp., No. 10-9543 (10th Cir. filed Mar. 25,
2011).


9
Permitting respondents’ intervenors to file three separate briefs also is
appropriate. Having multiple briefs for respondents’ intervenors will assist the
Court by enabling it to identify the intervenor brief that responds to a particular
argument asserted by petitioners more easily than would be possible with a single
intervenors’ brief. The Court recognized the value of such a targeted presentation
when it encouraged the Commission to file fourteen separate briefs responding to
each of the briefs filed by petitioners and their supporting intervenors. See Am.
First Briefing Order at 6-7.
Intervenors in support of respondents are not uniformly supportive of all
aspects of the Order. Only eight entities appear before the Court solely as
intervenors in support of respondents. Two of the intervenors in support of
respondents – AT&T Inc. and the National Telecommunications Cooperative
Association – are also petitioners challenging aspects of the Order. The more than
two dozen other entities that intervened in support of respondents also intervened
in support of petitioners. Some of respondents’ intervenors support only the
universal service aspects of the Order; others support only the intercarrier
compensation elements. And the separate brief for Voice Over Internet issues
reflects the divergent – indeed, opposing – interests that respondents’ intervenors
have on those issues. Forcing all of the intervenors to collaborate on a single brief

10 See Final Answer Br. of Resps., No. 10-5943 (10th Cir. filed Mar. 18, 2011).


10
would require parties with opposing interests to share a single allotment of words,
potentially precipitating unproductive and unnecessary conflicts over how to
allocate those words among the various issues in the case. Indeed, several parties
that are participating on both sides of the case have refused to join this briefing
proposal. They presumably have concluded that their interests in challenging
portions of the Commission’s Order outweigh their interests in defending aspects
of the Order and that they would prefer that respondents’ intervenors as a group be
given fewer words than proposed herein with which to respond to the challenges to
the Order.
Finally, intervenors in support of respondents request that their briefs be due
three weeks after the last of the uncited Commission briefs are filed, which would
be March 27, 2012 under the Commission’s proposal. Three weeks would give the
respondents’ intervenors sufficient time to coordinate among the signatories to the
briefs and to minimize any repetition of arguments found in the eleven briefs that
the Commission proposes to file on March 6, 2012.


CONCLUSION

For all of the foregoing reasons, the Court should grant this motion and
adopt the briefing schedule proposed herein.





Respectfully
submitted,
Sean
A.
Lev
General
Counsel


Peter
Karanjia

Deputy General Counsel

Jacob
M.
Lewis
Associate
General
Counsel



/s/ Maureen K. Flood

James
M.
Carr

Maureen K. Flood
Counsel

Federal
Communications
Commission
445
12th Street S.W.

Washington, DC 20554
202-418-1762
maureen.flood@fcc.gov


August 16, 2012
 


11-9900


IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT


In re: FCC 11-161, Petitioners

v.

Federal Communications Commission
and United States of America, Respondents.


CERTIFICATE OF COMPLIANCE



Pursuant to the requirements of the Order Governing Motion Practice dated
March 13, 2012, I hereby certify that the accompanying Motion Regarding the
Briefing Format contains 1,973 words.








/s/ Maureen K. Flood

Maureen
K.
Flood

Counsel
Federal
Communications
Commission
Washington,
D.C.
20554
(202)

418-1753


August 16, 2012


EXHIBIT A:


Statement of Liaison Counsel for Petitioners



Statement of Liaison Counsel for Petitioners




The FCC provided Liaison Counsel for Petitioners (LCP) with a copy of and outline of
the key components of its proposed motion last Thursday. LCP immediately circulated it to
a listserve that includes all Petitioners asking for comment by COB the following Monday.
This is a fairly fast turnaround for that listserve and LCP did not expect to receive many
responses. The bulk of responses LCP did receive, were received Monday in the late
afternoon. AT&T, which previously noted it will support the FCC on all but one issue,
confirmed that it will of course support the FCC’s motion. At least two others – Hypercube
and TW Telecom – sent me an e-mail saying they will take no position.


However, LCP anticipates that this motion will draw some serious objections. While I
have not heard from the majority, several Petitioners have raised concerns about the
obvious imbalance in flexibility and word counts embodied in the FCC’s proposal.


Liaison Counsel agrees with each of the concerns raised.


The preliminary concerns raised by those had time to respond include the following
three issues:

TIMING:




Certainly there is no rationale that can possibly justify the FCC needing until
FEBRUARY 6, 2012 to provide its counterstatement of the case. This is something that
they are or should be already at least outlining. Indeed, the procedural background outlined
in the text of the order on appeal provides an obvious and ready-made starting point.


Several Petitioners raised this specific point and suggested the overall schedule be
adjusted accordingly.


One petitioner put it this way: “

We. . . oppose the FCC’s timing proposals. We


believe the FCC should have no more than 60 days to respond to the petitioners’ joint
preliminary brief, and no more than 75 days to respond to each principal brief. The
intervenors’ (in support of FCC) filing date should be adjusted accordingly.”







UNRESTRICTED ALLOCATION FLEXIBILITY:




The Petitioners are already at an obvious and significant disadvantage via the Joint
Briefing process.


The FCC’s proposal increases that disadvantage.


Close to Thirty Petitioners (excluding AT&T) must coordinate on various aspects of
the Joint Briefs. The FCC doesn’t really have to coordinate with anyone.


The idea that the FCC should have an unrestricted right to allocate words among its
14 briefs is patently unfair.


Why should they not be limited in the exact same way Petitioners are limited?


The following are typical of the comments I received on this point:

[a] “This seems excessive - separate briefs for each parties’ briefs at 100K words while
we’re all shunted together with less.

Why can’t they do what we did

: one main ICC and
USF brief with word limits, one additional ICC and USF brief with word limits, and then their
intervenor-supporters get to do collectively what we’ve done”;

[b] [T]his is objectionable. If the FCC wants the benefit of equal word entitlement then it
should be required to allocate those words in the same manner and extent as petitioners
are required to do
. Failing this, the FCC has an opportunity to "gang up" on issues of its
choosing by filing more extensive briefing on its "favorite" issues”; and

[c] “[W]e oppose the FCC’s request for unrestricted rights to allocate total words among the
various petitions.

The most natural word limits for each of the FCC’s fourteen answer


briefs would be based upon the word limits allocated to each of the briefs to which
the FCC is responding—this would likely be most palatable [and useful] to the Court
.
Nevertheless, if the Court were to grant any aspect of this request, there must be a ceiling
for the number of words the FCC may allocate to any single petitioner’s brief. “


The common theme among the comments - petitioners are rigidly limited in word
allocations for each brief. The FCC’s responses to those briefs should also be so limited.





WORD COUNTS:




Finally, the court can expect some objection to overall word counts. LC’s earlier
statement on Petitioners briefing proposal noted the FCC’s, in the text of the appealed
order, have already used at least 141,484 words to make their case-in-chief.


One petitioner sent a persuasive overview of the flaws in this aspect of the FCC’s
proposal:

“[T]he FCC’s total words should not exceed 75% of petitioners’ words; this is based at least
in part on (1) prior practice in large multi-party proceedings in the federal circuits (e.g. in
Iowa Utilities--cited by intervenors in support of the FCC’s opposition to petitioners’
proposal--the FCC was given approximately 75% of petitioners’ totals.), (2) the Order itself
(and its size), which represents the FCC’s initial word allocation and which prompted the
litigation, and (3) the respondent’s procedural obligation to narrow the issues for the Court.
It should also be noted that the FCC represented to the Court that there was substantial
overlap in issues (suggesting that 100% of words is unnecessary) when it responded to the
original petitioners’ proposal.”

On the imbalance in the words that might be allocated to intervenors supporting petitioners
and those supporting the FCC under the FCC’s proposal, Gila River Telecommunications,
Inc. and the Gila River Indian Community, had this to say:

“[We] oppose the word limits proposed by the intervenors in support of the FCC. The
intervenors in support of the petitioners are filing two briefs that are limited, in total, to 7,998
words. Consequently, we believe that an equal word limit for the intervenors in support of
the FCC is appropriate.”
 

EXHIBIT B:


Consent Motion to Transfer, Windstream Corp. and Windstream

Commc’ns, Inc. v. FCC

, D.C. Cir. No. 12-1331 (filed Aug. 10, 2012)

USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 1 of 11
IN THE UNITED STATE COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT


Windstream Corporation and

)
Windstream Communications, Inc.
)
Petitioners,
)







)
v.
)


Case
No.
12-1331







)
Federal Communications Commission
)
and United States of America,

)
Respondents. )


CONSENT MOTION TO TRANSFER

Pursuant to Rule 27 of the Federal Rules of Appellate Procedure and
this Court’s Rule 27, the Federal Communications Commission (“FCC”)
asks the Court to transfer the captioned petition for review to the United
States Court of Appeals for the Tenth Circuit. As discussed below, such
transfer is required by 28 U.S.C. § 2112(a)(5), because the Tenth Circuit has
been designated the forum for all judicial challenges to the order that is the
subject of the petition for review. Opposing counsel have authorized
counsel for the FCC to state that the Petitioners have no objection to this
motion.

Argument


Section 2112(a) provides that if, “within 10 days after issuance” of an
agency order, petitions for review are filed in multiple courts of appeals, the
Judicial Panel on Multidistrict Litigation “shall, by means of random

USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 2 of 11

2
selection, designate one court of appeals” in which all petitions for review of
the “same order” shall be consolidated. 28 U.S.C. § 2112(a)(1) & (3).
Reconsideration orders are “the same order” for purposes of section
2112(a).1 Section 2112(a) further states that the courts of appeals, other than
the one so designated by the Judicial Panel, “shall transfer” their petitions
for review to the designated court. Id. § 2112(a)(5).
The captioned petition for review challenges orders issued by the
Commission in its Connect America Fund rulemaking proceeding. In
particular, petitioners seek review of both the Report and Order2 and the
Second Order on Reconsideration in that proceeding.3 In the latter order,

1 See ACLU v. FCC, 486 F.2d 411, 414 (D.C. Cir. 1973) (transferring
challenge to reconsideration order to the Ninth Circuit, where a challenge to
the underlying order was pending, because the reconsideration order and
underlying order were “the same order” for purposes of section 2112(a));
Natural Resources Defense Council v. EPA, 673 F.2d 392, 398-99 (D.C. Cir.
1980) (citing ACLU for the proposition that “separate orders, each giving
rise to a petition on different subject matter, were nevertheless the ‘same
order’ [under section 2112(a)] because they were issued during the course of
the same proceeding and implemented ‘a single, multifaceted agency
undertaking’”).
2 In the Matter of Connect America Fund; A National Broadband Plan for
Our Future; Establishing Just and Reasonable Rates for Local Exchange
Carriers; High-Cost Universal Service Support; Developing a Unified
Intercarrier Compensation Regime; Federal-State Joint Board on Universal
Service; Lifeline and Link-Up; Universal Service Reform – Mobility Fund
,
26 FCC Rcd 17663 (rel. Nov. 18, 2011), 76 Fed. Reg. 73,830 (Nov. 29,
2011) (“Report and Order”).
3 In the Matter of Connect America Fund; A National Broadband Plan for
Our Future; Establishing Just and Reasonable Rates for Local Exchange
Carriers; High-Cost Universal Service Support; Developing a Unified
Intercarrier Compensation Regime; Federal-State Joint Board on Universal


USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 3 of 11

3
the FCC, on its own motion, modified certain aspects of the earlier Report
and Order. See Second Order on Reconsideration ¶ 1 & n.1.
On December 14, 2011, the Judicial Panel on Multidistrict Litigation
required all petitions for review of the Report and Order to be consolidated
in the Tenth Circuit pursuant to section 2112(a).4 Because petitioners in the
captioned case directly challenge that order, as well as a reconsideration
order that constitutes “the same order” within the meaning of section
2112(a), this case must be transferred to the Tenth Circuit.
For the foregoing reasons, we respectfully request that the captioned
case be transferred to the United States Court of Appeals for the Tenth
Circuit.



Respectfully
submitted,






Sean A. Lev
General
Counsel


Peter
Karanjia
Deputy
General
Counsel


Service; Lifeline and Link-Up; Universal Service Reform – Mobility Fund,
27 FCC Rcd 4648 (rel. Apr. 25, 2012), 77 Fed. Reg. 31,520 (May 29, 2012)
(“Second Order on Reconsideration”).
4 In re Federal Communications Commission, Connect America Fund,
Consolidation Order (JPML December 14, 2011) (copy attached as Exhibit
1). See also Preliminary Order Regarding JPML Order, 10th Circuit No. 11-
9581 (filed Dec. 15, 2011) (copy attached as Exhibit 2). To date, more than
30 petitions for review of the Commission’s action in the Connect America
Fund
proceeding have been consolidated in the Tenth Circuit.

USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 4 of 11

4

Richard
K.
Welch
Deputy
Associate
General
Counsel

/s/
Maureen
K.
Flood

Maureen
K.
Flood
Counsel

Federal
Communications
Commission
Washington,
D.C.
20554

August 10, 2012

USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 5 of 11

EXHIBIT 1:


Consolidation Order of the Judicial Panel on Multidistrict Litigation,
FCC 11-1914, MCP No. 108 (Dec. 14, 2011)

USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 6 of 11

USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 7 of 11

USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 8 of 11

EXHIBIT 2:


Preliminary Order Regarding JPML Order, No. 11-9581
(10th Cir., Dec. 15, 2011)

USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 9 of 11

USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 10 of 11

USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 11 of 11
12-1331


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

Windstream Corporation and Windstream
Communications, Inc., Petitioners

v.

Federal Communications Commission and the
United States of America, Respondents

CERTIFICATE OF SERVICE


I, Maureen K. Flood, hereby certify that on August 10, 2012, I electronically
filed the foregoing Consent Motion to Transfer with the Clerk of the Court
for the United States Court of Appeals for the D.C. Circuit by using the
CM/ECF system. Participants in the case who are registered CM/ECF users
will be served by the CM/ECF system.


Jeffrey A. Lamken
Robert B. Nicholson
MoloLamken LLP
Robert J. Wiggers
The Watergate, Suite 660
U.S. Department of Justice
600 New Hampshire Ave., N.W.
Antitrust Division, Appellate Section
Washington, D.C. 20037
Room 3224
Counsel for: Windstream
950 Pennsylvania Avenue, N.W.
Corporation and Windstream
Washington, D.C. 20530-0001
Communications, Inc.
Counsel for: USA


/s/ Maureen K. Flood



CERTIFICATE OF DIGITAL SUBMISSION



I, Maureen K. Flood, hereby certify that with respect to the foregoing:


(1) there are no required privacy redactions to be made per 10th Cir. R. 25.5;

(2) if required to file additional hard copies, that the ECF submission is an
exact copy of those documents;

(3) the digital submissions have been scanned for viruses with the most
recent version of a commercial virus scanning program, Symantec Endpoint
Protection version 11.0.5002.333, and according to the program are free of
viruses.



/s/ Maureen K. Flood


Maureen K. Flood
Counsel
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1753

11-9900


IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT


In re: FCC 11-161, Petitioners

v.

Federal Communications Commission and United States of America,
Respondents.


CERTIFICATE OF SERVICE



I, Maureen K. Flood, hereby certify that on August 16, 2012, I electronically filed
the foregoing Motion Regarding the Briefing Format with the Clerk of the Court
for the United States Court of Appeals for the Tenth Circuit by using the CM/ECF
system. Participants in the case who are registered CM/ECF users will be served
by the CM/ECF system.



Joseph K. Witmer
Charles A. Zdebski
Kathryn G. Sophy
James C. Falvey
Bohdan R. Pankiw
Jennifer E. Lattimore
Shaun A. Sparks
Eckert Seamans Cherin & Mellott,
Pennsylvania PUC
LLC
P.O. Box 3265
1717 Pennsylvania Avenue, N.W.
Harrisburg, PA 17105-3265
12th Floor
Counsel for: Pennsylvania PUC
Washington, D.C. 20006
Counsel for: Core Communications,
Inc.





Ernest C. Cooper
David Bergmann
Robert G. Kidwell
3293 Noreen Drive
Howard J. Symons
Columbus, OH 43221-4568
Mintz Levin Cohn Ferris Glovsky &
Counsel for: NASUCA
Popeo PC
701 Pennsylvania Avenue, N.W.
Suite 900
Washington, D.C. 20004
Counsel for: NCTA



Paula Marie Carmody
Christopher J. White
MD Office of People’s Counsel
New Jersey Division of Rate Counsel
Suite 2102
P.O. Box 46005
6 St. Paul Street
Newark, NJ 07101
Baltimore, MD 21202
Counsel for NASUCA
Counsel for NASUCA



Russell M. Blau
David A. LaFuria
Tamar Finn
Russell D. Lukas
Bingham & McCutchen, LLP
Todd B. Lantor
2020 K Street, N.W.
David L. Nace
Washington, D.C. 20006
Lukas, Nace, Gutierrez & Sachs,
Counsel for: NTCA and OPASTCO
LLP
Suite 1200
8300 Greensboro Drive
McLean, VA 22102
Counsel for: Cellular South, Inc.,et
al.


2




John H. Jones
Benjamin H. Dickens
Office of the Ohio Attorney General
Gerard J. Duffy
150 E. Gay Street, 16th Floor
Mary J. Sisak
Columbus, OH 43215
Robert M. Jackson
Counsel for: PUC of Ohio
Blooston & Mordkofsky
2120 L Street, N.W., Suite 300
Washington, D.C. 20037
Counsel for: Choctaw Telephone
Company, et al.




Craig S. Johnson
David R. Irvine
Johnson & Sporleder
Jenson Stavros & Guelker
304 E. High Street
747 East South Temple, Suite 130
Suite 200
Salt Lake City, UT 84102
Jefferson City, MO 65102
Counsel for: Direct
Counsel for: Choctaw Telephone
Communications Cedar Valley, LLC,
Company
et al.


David H. Solomon
Donna N. Lampert
Craig E. Gilmore
Mark J. O’Connor
Charles L. Keller
Jennifer P. Bagg
Wilkinson Barker Knauer, LLP
Joseph Bissonnette
2300 N Street, N.W., Suite 700
E. Ashton Johnston
Washington, D.C. 20037
Helen E. Disenhaus
Counsel for: T-Mobile USA, Inc.
Lampert, O’Connor & Johnston, PC
1776 K Street, N.W., Suite 700
Washington, D.C. 20006
Counsel for: Transcom Enhanced
Services, Inc ., et al.


3





William S. McCollough
Christopher M. Heimann
McColloughHenry, PC
Gary L. Phillips
1250 South Capital of Texas
Paul K. Mancini
Highway
AT&T Inc.
Suite 2-235
1120 20th Street, N.W., Suite 1000
West Lake Hills, TX 78746
Washington, DC 20036
Counsel for: Halo Wireless, Inc.
Counsel for: AT&T



Jonathan E. Nuechterlein
Bridget Asay
Elvis Stumbergs
State of Vermont office of the
Heather M. Zachary
Attorney General
Daniel Deacon
109 State Street
Wilmer Cutler, et al.
Montpelier, VT 05609
1875 Pennsylvania Avenue, N.W.
Counsel for: Vermont PSB
Washington, D.C. 20006-1420
Counsel for: AT&T Inc.


Robert B. Nicholson
Scott H. Angstreich
Robert J. Wiggers
Brendan J. Crimmins
U.S. Department of Justice
Kellogg, Huber, Hansen, Todd,
Antitrust Division, Appellate Section Evans & Figel, PLLC
950 Pennsylvania Avenue, N.W.
1615 M Street, N.W., Suite 400
Washington, D.C. 20530
Washington, D.C. 20036
Counsel for: USA
Counsel for: Verizon



Christopher J. Wright
Glenn Richards
Wiltshire & Grannis LLP
Pillsbury Winthrop Shaw Pittman
1200 18th Street, N.W.
2300 N Street, N.W.
Washington, D.C. 20036
Washington, D.C. 20037-1122
Counsel for: Level 3
Counsel for: The Voice on the Net
Communications, LLC and Sprint
Coalition
Nextel Corporation


4




Thomas Jones
Robert A. Long, Jr.
David Paul Murray
Gerald J. Waldron
Nirali Patel
Yaron Dori
Willkie, Farr & Gallagher LLP
Enrique Armijo
1875 K Street, N.W.
Covington & Burling LLP
Washington, D.C. 20006
1201 Pennsylvania Avenue, N.W.
Counsel for: tw telecom, inc.
Washington, D.C. 20004-2401
Counsel for: CenturyLink, Inc.


David E. Mills
Clare E. Kindall
J.G. Harrington
Assistant Attorney General
Dow Lohnes PLLC
Department Head-Energy
1200 Ner Hampshire Avenue, N.W.
Office of the Attorney General
Suite 800
Ten Franklin Square
Washington, D.C. 20036-6802
New Britain, CT 06051
Counsel for: Cox Communications,
Counsel for Connecticut PURA
Inc.



Genevieve Morelli
Craig S. Johnson
ITTA
Johnson & Sporleder, LLP
1101 Vermont Avenue, N.W.
304 E High Street, Suite 200
Suite 501
P.O. Box 1670
Washington, D.C. 20005
Jefferson City, MO 65102
Counsel for: ITTA
Counsel for: Choctaw Telephone
Company




Carl W. Northrop
Mark A. Stachiw
Telecommunications Law
MetroPCS Communications, Inc.
Professionals PLLC
2250 Lakeside Blvd.
875 15th Street, N.W., Suite 750
Richardson, TX 75082
Washington, D.C. 20005
Counsel for: MetroPCS
Counsel for: MetroPCS
Communications, Inc.
Communications, Inc.

5




Gregory J. Vogt
Paul M. Schudel
Law Offices of Gergory J. Vogt,
Thomas J. Moorman
PLLC
Woods & Aitken LLP
2121 Eisenhower Avenue, Suite 200
301 South 13th Street, Suite 500
Alexandria, VA 22314
Lincoln, Nebraska 68508
Counsel for: National Exchange
Counsel for: Nebraska Rural
Carriers Association, Inc.
Independent Companies


Matthew A. Brill
Steven H. Thomas
Latham & Watkins
McGuire Craddock & Strother, PC
555 11th Street, Suite 1000
2501 N. Harwood, Suite 1800
Washington, D.C. 20004
Dallas, TX 75201
Counsel for: Rural Cellular
Counsel for: Halo Wireless
Association



Sidney Powell
Walter H. Sargent
Torrence E. Lewis
1632 N. Cascade Avenue
3831 Turtle Creek Blvd. #5B
Colorado Springs, CO 80907
Dallas, TX 75219
Counsel for Transcom Enhanced
Counsel for: Transcom Enhanced
Services, Inc., et al..
Services, Inc.


Michael B. Wallace
Caressa D. Bennet
Rebecca Hawkins
Kenneth C. Johnson
Wise Carter Child & Caraway, P.A.
Daryl A. Zakov
401 E. Capitol Street
Anthony K. Veach
Heritage Building, Suite 600
Bennet & Bennet, PLLC
Jackson, MS 39201
4350 East West Highway, Suite 201
Counsel for: Cellular South, Inc.
Bethesda, MD 20814
Counsel for: Rural
Telecommunications Group, Inc. and
Central Texas Telephone
Cooperative, Inc.


6




Samuel L. Feder
John B. Messenger
Elaine J. Goldenberg
5700 Georgia Avenue
Jenner & Block LLP
West Palm Beach, FL 33405
1099 New York Avenue, N.W.
Counsel for: YMax Communications
Washington, D.C. 20001
Corp.
Counsel for: Comcast Corporation


Robert A. Fox
Patricia A. Millett
1500 SW Arrowhead Road
Kevin Amer
Topeka, KS 66604
Sean Conway
Counsel for The State Corporation
Akin Gump Strauss Hauer & Feld
Commission of the State of Kansas
LLP
1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Counsel for: Gila River Indian
Community, et al.




Don L. Keskey
Ivan C. Evilsizer
505 N. Capitol Avenue
Evilsizer Law Office, PLLC
Lansin, MI 48933
2301 Colonial Drive, Suite 2B
Counsel for: Allband
Helena, MT 59601-4995
Communications Cooperative
Counsel for: Ronan Telephone
Company, et al.



Alan L. Smith
Roger D. Dixon, Jr.
1169 East 4020 South
Law Offices of Dale Dixon
Salt Lake City, UT 84124
7316 Esfera Street
Counsel for Direct Communications
Carlsbad, CA 92009
Cedar Valley, LLC, et al.
Counsel for: North County
Communications Corporation


7




David Cosson
H. Russell Frisby, Jr.
2154 Wisconsin Avenue, N.W.
Dennis Lane
Washington, D.C. 20007
Harvey L. Reiter
Counsel for: Eastern Nebraska
Stinson Morrison Hecker
Telephone Company
1775 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Counsel for: Eastern Nebraska
Telephone Company



James B. Ramsay
Maureen A. Scott
NARUC 1101 Vermont Avenue,
Janet F. Wagner
N.W., Suite 200
Wesley C. Van Cleve
Washington, D.C. 20005
Arizona Corporation Commission
Counsel for: NARUC
Legal Division

1200 West Washington
Phoenix, AZ 85007
Counsel for: Arizona Corporation
Commission



Raymond L. Doggett, Jr.
Rick Chessen
D. Mathias Roussy, Jr.
Neal M. Goldberg
Virginia State Corporation
Jennifer McKee
Commission
Steven F. Morris
Office of General Counsel
NCTA
P.O. Box 1197
25 Masschusetts Avenue, N.W.
Richmond, VA 23218-1197
Suite 100
Counsel for: Virginia State
Washington, D.C. 20001
Corporation Commission
Counsel for: NCTA





/s/ Maureen K. Flood


8

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