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Resp. to Transcom Pet. for Reh'g - In re: FCC 11-161 (10th Cir.)

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Released: August 7, 2014
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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 1

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NO. 11-9900

IN RE: FCC 11-161

ON PETITION FOR REVIEW OF AN ORDER OF THE

FEDERAL COMMUNICATIONS COMMISSION

RESPONSE OF THE FEDERAL COMMUNICATIONS COMMISSION AND THE UNITED STATES OF

AMERICA TO THE PETITION FOR REHEARING EN BANC OF TRANSCOM ENHANCED SERVICES, INC.

WILLIAM J. BAER

JONATHAN B. SALLET

ASSISTANT ATTORNEY GENERAL

GENERAL COUNSEL

ROBERT B. NICHOLSON

DAVID M. GOSSETT

ROBERT J. WIGGERS

ACTING DEPUTY GENERAL COUNSEL

ATTORNEYS

JACOB M. LEWIS

UNITED STATES

ASSOCIATE GENERAL COUNSEL

DEPARTMENT OF JUSTICE

WASHINGTON, D.C. 20530

RICHARD K. WELCH

DEPUTY ASSOCIATE GENERAL COUNSEL

LAURENCE N. BOURNE

JAMES M. CARR

MAUREEN K. FLOOD

COUNSEL

FEDERAL COMMUNICATIONS COMMISSION

WASHINGTON, D.C. 20554

(202) 418-1740

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................................................................... ii 

BACKGROUND ............................................................................................... 1 

ARGUMENT .................................................................................................... 4 

CONCLUSION ............................................................................................... 17 

i

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TABLE OF AUTHORITIES

CASES 

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664 (10th

Cir. 1998) ....................................................................................................... 6

Becker v. Bateman, 709 F.3d 1019 (10th Cir. 2013) ........................................ 9

Coal. for Noncommercial Media v. FCC, 249 F.3d

1005 (D.C. Cir. 2001) .................................................................................. 13

Echostar Satellite L.L.C. v. FCC, 704 F.3d 992

(D.C. Cir. 2013) .................................................................................... 11, 12

Excel Corp. v. U.S. Dep’t of Agric., 397 F.3d 1285

(10th Cir. 2005) ........................................................................................... 13

FCC v. Fox Television Stations, Inc., 556 U.S. 502

(2009) .......................................................................................................... 15

Gilmore v. Weatherford, 694 F.3d 1160 (10th Cir.

2012) ............................................................................................................ 13

Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967 (2005) ........................................................... 14

Nat’l Exch. Carrier Ass’n v. FCC, 253 F.3d 1 (D.C.

Cir. 2001) ....................................................................................................... 9

Nw. Indiana Tel. Co. v. FCC, 872 F.2d 465 (D.C.

Cir. 1989) ..................................................................................................... 13

Oklahoma v. EPA, 723 F.3d 1201 (10th Cir. 2013) .......................................... 5

Qwest Corp. v. FCC, 689 F.3d 1214 (10th Cir.

2012) ............................................................................................................ 15

Sierra Club v. Hodel, 848 F.2d 1068 (10th Cir.

1988) ............................................................................................................ 12

Sorenson Commc’ns, Inc. v. FCC, 659 F.3d 1035

(10th Cir. 2011) ........................................................................................... 10

Sprint Nextel Corp. v. FCC, 524 F.3d 253 (D.C.

Cir. 2008) ..................................................................................................... 13

United States v. Charley, 189 F.3d 1251 (10th Cir.

1999) ............................................................................................................ 12

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United States v. L.A. Tucker Truck Lines, 344 U.S.

33 (1952) ..................................................................................................... 13

Wilson v. Hodel, 758 F.2d 1369 (10th Cir. 1985) ........................................... 13

STATUTES 

47 U.S.C. § 153(16) .......................................................................................... 7

47 U.S.C. § 405(a) ...................................................................................... 4, 10

OTHER AUTHORITIES 

10th Cir. Rule 35.1(A) ....................................................................................... 4

10th Cir. Rule 40.1(A) ...................................................................................4, 9

Fed. R. App. P. 35(b)(1)(A) .............................................................................. 4

Fed. R. App. P. 35(b)(1)(B) .............................................................................. 4

Fed. R. App. P. 40(a)(2) .................................................................................... 4

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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 5

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NO. 11-9900

IN RE: FCC 11-161

ON PETITION FOR REVIEW OF AN ORDER OF THE

FEDERAL COMMUNICATIONS COMMISSION

RESPONSE OF THE FEDERAL COMMUNICATIONS COMMISSION AND THE UNITED

STATES OF AMERICA TO THE PETITION FOR REHEARING EN BANC OF

TRANSCOM ENHANCED SERVICES, INC.

Pursuant to the panel’s order dated July 10, 2014, respondents Federal

Communications Commission (“FCC”) and United States of America submit

this response to the petition for rehearing en banc filed by Transcom

Enhanced Services, Inc. (“Transcom”). As we explain below, Transcom has

not come close to satisfying the stringent standard for rehearing of the panel’s

May 23, 2014 decision. See In re FCC 11-161, 753 F.3d 1015 (10th Cir.

2014). The Court therefore should deny Transcom’s petition.

BACKGROUND

In the order on review, the FCC comprehensively reformed two of its

largest and most complex regulatory programs: universal service and

intercarrier compensation. Connect America Fund, 26 FCC Rcd 17663

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(2011) (“Order”) (JA at 390). Although the Order is more than 700 pages

long, Transcom’s principal claim in this case concerns just two paragraphs

where the FCC clarified its “intraMTA rule,” which defines when a wireless

telephone call is “local” as opposed to “long-distance.” See Order ¶¶1005-06

(JA at 768-69).1

In the proceeding below, Halo Wireless, Inc. (“Halo”) claimed that the

telecommunications traffic it received from Transcom – its business partner

and sole customer – was locally originated wireless traffic (and was therefore

exempt from access charges). Order ¶1005 (JA at 768-69). The record

showed, however, that most of the phone calls Transcom handed off to Halo

originated elsewhere as long-distance calls (and were therefore subject to

access charges under applicable tariffs or contracts). As illustrated by

Diagram 9 in the panel’s opinion, Transcom and Halo routinely inserted

themselves in the middle of the path of these calls. See In re: FCC 11-161,

1 “MTA” stands for “Major Trading Area,” the largest FCC-authorized

license area for wireless carriers. See FCC Response to Transcom Principal

Brief at 4 n.2. If a wireless call is “intraMTA” (i.e., if it originates and

terminates within the same MTA), it is considered “local.” A wireless call

that originates in one MTA and terminates in another is considered “long-

distance.” This distinction is significant for intercarrier compensation

purposes. Providers of long-distance service must make payments – known

as access charges – to the local carriers that originate and terminate long-

distance calls. Local calls are subject to a different intercarrier compensation

regime. See FCC Response to Transcom Principal Brief at 2-4.

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753 F.3d at 1152 (slip op. at 94). Although Transcom and Halo helped route

these calls, neither the parties placing the calls nor the recipients of the calls

sought or were aware of Transcom’s or Halo’s involvement. FCC Response

to Transcom Principal Brief at 15.

The FCC rejected Halo’s assertion that the transmission “of a call over

a wireless link in the middle of the call path” somehow converted “a wireline-

originated call into a [wireless]-originated call” for purposes of intercarrier

compensation. Order ¶1006 (JA at 769). Instead, the agency clarified that,

under its intraMTA rule, “a call is considered to be originated by a [wireless]

provider” only if the “party initiating the call has done so through a [wireless]

provider.” Id.

Transcom challenged the FCC’s interpretation of its intraMTA rule.

The panel rejected this challenge, holding that the FCC had reasonably

interpreted its rule. In re: FCC 11-161, 753 F.3d at 1152-53 (slip op. at 93-

97).

Transcom also asserted that the FCC lacked authority to bar non-

carriers from altering caller identification information and to prohibit call

blocking by providers of certain forms of Voice over Internet Protocol

(“VoIP”) service. The panel concluded that these claims were waived

because neither Transcom nor any other party had presented them to the

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Commission. In re: FCC 11-161, 753 F.3d at 1153-54 (slip op. at 97-99)

(citing 47 U.S.C. § 405(a)); see also id. at 1149-51 (slip op. at 86-92) (ruling

that petitioner Voice on the Net also waived its challenges to the ban on call

blocking by VoIP providers).

ARGUMENT

The standard for granting rehearing en banc is rigorous. That

extraordinary procedure is reserved for cases in which “the panel decision

conflicts with a decision of the United States Supreme Court or of [this]

court,” Fed. R. App. P. 35(b)(1)(A), or cases involving “one or more

questions of exceptional importance.” Fed. R. App. P. 35(b)(1)(B); see also

10th Cir. Rule 35.1(A) (“A request for en banc consideration is disfavored.”).

Similarly, the Court will not grant panel rehearing unless “a significant issue

has been overlooked or misconstrued by the court.” 10th Cir. Rule 40.1(A);

see also Fed. R. App. P. 40(a)(2). Transcom has failed to justify rehearing

under either of these demanding standards.

I.

Before the panel, Transcom challenged the FCC’s clarification

that, under its intraMTA rule, the presence of a wireless transmission link in

the middle of a call path does not convert a wireline-originated call into a

wireless-originated call for purposes of intercarrier compensation. In

affirming the FCC’s reasonable interpretation of the rule, the panel found that

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Transcom’s alternative reading “overlooks the FCC’s prior determination that

a call ‘terminates’ only when the call reaches the called party.” In re: FCC

11-161, 753 F.3d at 1153 (slip op. at 96). The panel’s ruling is in keeping

with the well-settled principle that the FCC’s construction of its own rule is

entitled to substantial judicial deference. See Oklahoma v. EPA, 723 F.3d

1201, 1211 (10th Cir. 2013) (“[w]hen an agency interprets its own regulation,

the Court, as a general rule, defers to it unless that interpretation is plainly

erroneous or inconsistent with the regulation”) (internal quotation marks

omitted).

In its rehearing petition, Transcom claims that the panel overlooked a

host of other issues. But none of those issues was briefed with sufficient

clarity to have required the panel’s consideration.

a. Transcom complains that the panel did not rule on its “contention

that imposing exchange access charges on Transcom’s traffic violates the

Communications Act even if Transcom is an ‘intermediate’ point rather than

a termination point for ‘wireless’ or ‘wireline.’” Rehearing Petition at 11.

Transcom asserts that it made this contention on pages 20-21 of its principal

brief, but those pages do not include a single citation to the Communications

Act, let alone a coherent claim that the agency violated the Act. As this Court

has long recognized, “[a]rguments inadequately briefed in the opening brief

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are waived.” In re: FCC 11-161, 753 F.3d at 1137 (slip op. at 61) (quoting

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998)).

Typically, the Court does not consider arguments that are presented “without

citation to authority or the record.” Adler, 144 F.3d at 679.

b. Transcom also complains that the panel made no mention of

Transcom’s points “contesting the FCC’s determinations for ‘wireline’

traffic.” Rehearing Petition at 11. That omission was understandable. The

word “wireline” appears just once in Transcom’s principal brief – in a

footnote citing an FCC order with “wireline” in its title. See Transcom

Principal Brief at 47 n.104.

Although Transcom says (Rehearing Petition at 11-12) that it “clearly”

raised wireline issues at pages 30-36 of its principal brief, the arguments

made on those pages are opaque. Moreover, it is hard to see the relevance of

Transcom’s claim that “the Act does not permit a requirement that

Transcom’s LEC [local exchange carrier] vendors pay exchange access

charges to other carriers for Transcom’s traffic.” Rehearing Petition at 13.

The Order on review directly addressed only one of Transcom’s vendors –

Halo, which is a wireless carrier, not a local exchange (or “wireline”) carrier.

See Order ¶¶1005-06 (JA at 768-69).

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c. Contrary to Transcom’s assertion (Rehearing Petition at 12), the

panel did address Transcom’s argument that the FCC violated the statutory

“distinction between carriers and end-users.” The panel concluded that

“Transcom has not pointed to any authority making its purported position as

an enhanced service provider or an end-user relevant to the FCC’s

interpretation of the intraMTA rule.” In re: FCC 11-161, 753 F.3d at 1153

(slip op. at 97). There is no reason to revisit this entirely sound conclusion.

While the panel did not expressly address “the related argument that

the statute[ ] says that end-user CPE [customer premises equipment] is an

end-point where calls originate and terminate for compensation purposes”

(Rehearing Petition at 12), there was no need to do so given the panel’s

conclusion that such distinctions were not relevant for present purposes. The

argument is baseless in any event. The Communications Act defines

“customer premises equipment” as “equipment employed on the premises of

a person (other than a carrier) to originate, route, or terminate

telecommunications.” 47 U.S.C. § 153(16) (emphasis added). By the Act’s

plain terms, such equipment need not be an end-point where calls originate or

terminate. It can also be used to “route” calls from one point to another.

Even assuming that Transcom’s equipment qualifies as CPE, Transcom was

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using its equipment to route calls that originated and terminated elsewhere.

See FCC Response to Transcom Principal Brief at 5-7.

d. Transcom also asserts that the panel “overlooked Transcom’s

argument that the FCC illegally imposed common carrier status on Transcom

for purposes of intercarrier compensation … and regulated end-users in ways

not allowed by the Act.” Rehearing Petition at 12 (citing Transcom Principal

Brief at 27-36). But Transcom has never clearly explained how it thinks the

Order “imposed common carrier status on” or otherwise “regulated”

Transcom for intercarrier compensation purposes. Indeed, as Transcom

admits, the Order does not even mention Transcom by name; it only

specifically identifies Halo (Transcom’s wireless vendor). Rehearing Petition

at 4 (citing Order ¶¶1005-06 (JA at 768-69)). The Order does not impose

intercarrier compensation regulations or common carrier status on Transcom.

e. Transcom complains that the panel did not address the argument

that “exchange access cannot apply as a matter of law” to information service

providers because they “do not provide telephone toll service and therefore

do not receive exchange access.” Rehearing Petition at 12-13 (citing

Transcom Principal Brief at 35-36); see also id. at 21-22. The panel rightly

refrained from addressing this issue because the Order said nothing about it.

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Hence, “[t]here is … nothing for this court to review.” Becker v. Bateman,

709 F.3d 1019, 1027 n.9 (10th Cir. 2013).

*****

It is not surprising that the panel decision did not discuss every specific

claim that Transcom now says it raised. Many of the arguments in

Transcom’s principal brief were “difficult to decipher.” FCC Response to

Transcom Principal Brief at 15. Transcom’s briefs presented the panel with a

hodgepodge of largely undeveloped and inadequately explained claims.

Under the circumstances, the panel was under no obligation to address

arguments that Transcom did not present in a comprehensible manner. If a

petitioner “has failed to make intelligible to the court any coherent argument

in support of its substantive claim,” it is not “the court’s duty to identify,

articulate, and substantiate a claim for the petitioner.” Nat’l Exch. Carrier

Ass’n v. FCC, 253 F.3d 1, 4 (D.C. Cir. 2001). Indeed, even if the panel had

been obligated to respond to the issues that Transcom has inadequately

briefed, panel rehearing would be appropriate only if the issues that the panel

overlooked were “significant.” 10th Cir. Rule 40.1(A) (emphasis added).

Transcom has not identified a single significant issue that the panel decision

failed to address.

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II.

Under section 405 of the Communications Act, the filing of a

reconsideration petition with the FCC is “a condition precedent to judicial

review … where the party seeking such review … relies on questions of fact

or law upon which the Commission … has been afforded no opportunity to

pass.” 47 U.S.C. § 405(a); see also In re: FCC 11-161, 753 F.3d at 1149

(slip op. at 87); Sorenson Commc’ns, Inc. v. FCC, 659 F.3d 1035, 1044 (10th

Cir. 2011). The FCC argued that Transcom’s challenges to the “call-

identifying” and “no-blocking” rules were waived because no one presented

those objections to the agency. FCC Response to Transcom Principal Brief

at 21, 24-25. “Transcom responded, without explanation, by citing over 100

pages in the record.” In re: FCC 11-161, 753 F.3d at 1154 (slip op. at 98)

(citing Transcom Reply Brief at 23).

The panel, after carefully reviewing the 100 pages cited by Transcom,

reasonably determined that “Transcom has failed to identify a single place …

in which it alerted the FCC to its jurisdictional attack on the call-identifying

rules.” Id. (slip op. at 99). Similarly, the panel found nothing in the record

that articulated a challenge to the FCC’s authority to ban call blocking by

VoIP providers. Id. at 1151, 1154 (slip op. at 91-92, 99). Consequently, in

accordance with section 405, the panel properly concluded that Transcom’s

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challenges to the “call-identifying” and “no-blocking” rules had been waived.

In re: FCC 11-161, 753 F.3d at 1149-51, 1153-54 (slip op. at 86-92, 97-99).

Transcom now maintains that the panel misapplied section 405.

Rehearing Petition at 15-19. According to Transcom, “[e]ven if no party

raised the issue” of whether the FCC had authority to adopt the call-

identifying and no-blocking rules, section 405 was “satisfied” because the

agency “expressly addressed and ruled on the question.” Rehearing Petition

at 16.

This argument provides no basis for rehearing because the panel never

received an opportunity to consider it. Neither Transcom nor any other party

made this argument in the briefs.2 “It is axiomatic that ‘[p]etitions for

rehearing … are permitted to enable parties to notify, and to correct, errors of

fact or law on the issues already presented; they are not meant to permit

2 In its rehearing petition (at 17), Transcom cites only one case that even

arguably supports its proposed reading of section 405: Echostar Satellite

L.L.C. v. FCC, 704 F.3d 992, 996 (D.C. Cir. 2013) (“Even if no other party

brought the matter to the agency’s attention, the FCC’s independent

contemplation of [an] issue satisfies §405’s mandate.”). Transcom did not

cite Echostar in either its principal brief or its reply brief (after the FCC’s

brief argued that section 405 barred Transcom’s challenge to the agency’s

authority). Voice on the Net cited Echostar in its reply brief (at 2), but for a

different proposition. No petitioner argued to the panel that section 405 was

satisfied by the FCC’s “independent contemplation” of its authority to

promulgate the challenged rules if no party in the proceeding raised any

challenge to the agency’s authority.

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parties to assert new grounds for relief.’” United States v. Charley, 189 F.3d

1251, 1264 n.16 (10th Cir. 1999) (emphasis added) (quoting Sierra Club v.

Hodel, 848 F.2d 1068, 1100-01 (10th Cir. 1988)).

In any event, the D.C. Circuit case on which Transcom bases this

argument – Echostar, 704 F.3d at 996 – is distinguishable. That case

addressed a situation where “the FCC devoted several pages of the Order to

discussing” its authority to adopt the rule on review. Id. The court in

Echostar reasoned that because the agency made more than a “cursory

reference” to its authority, the Commission’s “independent contemplation” of

the issue was sufficient to preserve the issue for review under section

405. Id. Here, by contrast, the Order’s discussion of the FCC’s authority

that Transcom seeks to challenge amounts to one footnote on the “call-

identifying” issue (Order n.1232 (JA at 623-24)), and one sentence and one

footnote addressing the ”no-blocking” issue (Order ¶974 & n.2043 (JA at

756)). Under Echostar, such a cursory discussion of the agency’s authority is

not enough to satisfy the requirements of section 405. 

Furthermore, the panel’s application of section 405 in this case is fully

consistent with Supreme Court and Tenth Circuit precedent concerning

administrative exhaustion. The Supreme Court has long held that “courts

should not topple over administrative decisions unless the administrative

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body not only has erred but has erred against objection made at the time

appropriate under its practice.” United States v. L.A. Tucker Truck Lines, 344

U.S. 33, 37 (1952) (emphasis added). Section 405 codifies this principle.

See, e.g., Nw. Indiana Tel. Co. v. FCC, 872 F.2d 465, 470 (D.C. Cir. 1989)

(quoting Tucker Truck Lines). Recognizing the “[s]imple fairness” of this

approach, this Court has consistently adhered to this basic principle of

administrative exhaustion. See Gilmore v. Weatherford, 694 F.3d 1160, 1169

(10th Cir. 2012); Excel Corp. v. U.S. Dep’t of Agric., 397 F.3d 1285, 1296-97

(10th Cir. 2005); Wilson v. Hodel, 758 F.2d 1369, 1372-73 (10th Cir. 1985).3

The panel followed the same approach here. Finding no objections in

the administrative record to the exercise of rulemaking authority that

Transcom sought to challenge on appeal, the panel properly concluded – in

accordance with Supreme Court and Tenth Circuit precedent – that

Transcom’s arguments were waived because the FCC received no

3 The D.C. Circuit has also followed this approach. See, e.g., Sprint Nextel

Corp. v. FCC, 524 F.3d 253, 257 (D.C. Cir. 2008) (“The pith of the test is

this: the argument made to the Commission must necessarily implicate[ ] the

argument made to [the Court].” (internal quotation marks omitted)); Coal. for

Noncommercial Media v. FCC, 249 F.3d 1005, 1009 (D.C. Cir. 2001)

(“[o]nly a discussion offered in response to someone’s argument – such as

petitioner’s, another party’s, or a [dissenting] Commissioner’s – qualifies”

under section 405 as an opportunity to pass on an issue).

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“opportunity to pass” on those claims under section 405. No further review is

warranted.

III.

Transcom claims that the panel’s decision to uphold the FCC’s

interpretation of the intraMTA rule conflicts with the Supreme Court’s ruling

in Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967

(2005) (“Brand X”), that “[i]f an entity is providing ‘information service’

rather than ‘telecommunications service’ then the FCC cannot impose

common carrier obligations on that entity.” Rehearing Petition at 20 (citing

Brand X, 545 U.S. at 986-99). That ruling, however, has nothing to do with

this case because the clarification of the intraMTA rule does not impose any

common carrier obligations on Transcom.

Likewise, there is no merit to Transcom’s claim that the panel’s ruling

is “inconsistent with the Supreme Court’s Brand X holding that a party’s

regulatory classification as a carrier or information service provider is

determinative of the party’s rights, duties and obligations.” Rehearing

Petition at 20-21. It is hard to make sense of this vague assertion. If

Transcom (a self-described “information service provider”) means to suggest

that information service providers are entitled to certain “rights” under the

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intraMTA rule, it has yet to articulate a coherent theory to support that

argument.4

Transcom also contends that the panel did not “deal with Transcom’s

showing” that the FCC’s interpretation of the intraMTA rule “was an

unexplained course-reversal” from past agency practice. Rehearing Petition

at 24 (citing Transcom Principal Brief at 36-42). It asserts that Supreme

Court and Tenth Circuit “precedent dictated that the panel remand for an

explanation since the FCC failed to even acknowledge that it was abandoning

prior policy.” Id. at 25 (citing FCC v. Fox Television Stations, Inc., 556 U.S.

502, 514-17 (2009); Qwest Corp. v. FCC, 689 F.3d 1214, 1224-25 (10th Cir.

2012)).

Contrary to Transcom’s contention, there was no “course-reversal” for

the FCC to explain. Consistent with its original understanding of the

intraMTA rule, the FCC clarified in the Order that a call originates with the

party placing the call and terminates with the party being called. That reading

of the rule is eminently reasonable, and the agency has never interpreted the

rule any differently.

4 Indeed, Transcom has never clearly described the service it provides. It

may not even qualify as an information service (or “enhanced service”)

provider. See FCC Response to Transcom Principal Brief at 16 n.4.

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Transcom argues that the FCC’s clarification of its intraMTA rule

amounted to an unexplained change in course from its policies to help VoIP

providers to obtain telephone numbers through partnering arrangements with

wireless carriers. Rehearing Petition at 24; see Transcom Principal Brief at

36-42. This contention is puzzling. There is no discernible connection

between such number partnering arrangements and the intraMTA rule.

In an attempt to establish such a connection, Transcom speculates that

the FCC’s clarification of its intraMTA rule will hinder the ability of VoIP

providers to obtain the telephone numbers they need to provide service to end

users. Transcom Principal Brief at 40. But Transcom “does not provide”

either “‘interconnected VoIP’ or ‘non-interconnected VoIP’ to retail

consumers or businesses.” Id. at 2. Consequently, it lacks standing to

complain that the clarification of the intraMTA rule will harm VoIP

providers. See FCC Response to Transcom Principal Brief at 25. In any

event, there is no basis for Transcom’s assertion that the clarification of the

intraMTA rule will make it harder for VoIP providers to obtain telephone

numbers. If that claim had any substance, one would expect that VoIP

providers would have objected to the rule clarification. Yet not a single VoIP

provider raised an objection. Only Transcom – which is not a VoIP provider

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– mounted a legal challenge to the clarification. The panel correctly found no

merit to that challenge.

CONCLUSION

The rehearing petition should be denied.

Respectfully submitted,

WILLIAM J. BAER

JONATHAN B. SALLET

ASSISTANT ATTORNEY GENERAL

GENERAL COUNSEL

ROBERT B. NICHOLSON

DAVID M. GOSSETT

ROBERT J. WIGGERS

ACTING DEPUTY GENERAL

ATTORNEYS

COUNSEL

UNITED STATES

JACOB M. LEWIS

DEPARTMENT OF JUSTICE

ASSOCIATE GENERAL COUNSEL

WASHINGTON, D.C. 20530

RICHARD K. WELCH

DEPUTY ASSOCIATE GENERAL

COUNSEL

/s/ James M. Carr

LAURENCE N. BOURNE

JAMES M. CARR

MAUREEN K. FLOOD

COUNSEL

FEDERAL COMMUNICATIONS

COMMISSION

WASHINGTON, D.C. 20554

(202) 418-1740

August 7, 2014

17

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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 22

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

IN RE: FCC 11-161

NO. 11-9900

CERTIFICATE OF COMPLIANCE

Pursuant to the requirements of Fed. R. App. P. 32(a)(7) and this

Court’s order dated January 15, 2014, I hereby certify that the accompanying

Response of the Federal Communications Commission and the United States

of America to the Petition for Rehearing En Banc of Transcom Enhanced

Services, Inc. in the captioned case contains 3,451 words.

/s/ James M. Carr

James M. Carr

Counsel

Federal Communications Commission

Washington, D.C. 20554

(202) 418-1740 (Telephone)

(202) 418-2819 (Fax)

August 7, 2014

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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 23

CERTIFICATE OF DIGITAL SUBMISSION

I, James M. Carr, 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 submission was scanned for viruses with Symantec Endpoint

Protection, version 11.0.7200.1147, updated on August 7, 2014 and

according to the program is free of viruses.

/s/ James M. Carr

James M. Carr

Counsel

Federal Communications Commission

Washington, D.C. 20554

(202) 418-1762

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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 24

11-9900

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

In re: FCC 11-161

CERTIFICATE OF SERVICE

I, James M. Carr, hereby certify that on August 7, 2014, I electronically filed the

foregoing Response of the Federal Communications Commission and the United

States of America to the Petition for Rehearing En Banc of Transcom Enhanced

Services, Inc. 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

1717 Pennsylvania Avenue, N.W.

P.O. Box 3265

12th Floor

Harrisburg, PA 17105-3265

Washington, D.C. 20006

Counsel for: Pennsylvania PUC

Counsel for: Core Communications,

Inc.

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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 25

Ernest C. Cooper

David Bergmann

Robert G. Kidwell

3293 Noreen Drive

Mintz Levin Cohn Ferris

Columbus, OH 43221-4568

701 Pennsylvania Avenue, N.W.

Counsel for: NASUCA

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

John H. Jones

David A. LaFuria

Office of the Ohio Attorney General

Russell Lukas

180 E. Broad Street, 6th Floor

Todd B. Lantor

Columbus, OH 43215

David L. Nace

Counsel for: PUC of Ohio

Lukas, Nace, Gutierrez & Sachs

Suite 1200

Craig S. Johnson

8300 Greensboro Drive

Johnson & Sporleder

McLean, VA 22102

304 E. High Street

Counsel for: Cellular South,

Suite 200

Inc.,et al.

Jefferson City, MO 65102

Counsel for: Choctaw Telephone

Benjamin H. Dickens, Jr.

Company

Gerard J. Duffy

Mary J. Sisak

David H. Solomon

Robert M. Jackson

Craig E. Gilmore

Blooston & Mordkofsky

Charles L. Keller

2120 L Street, N.W., Suite 300

Wilkinson Barker Knauer, LLP

Washington, D.C. 20037

2300 N Street, N.W., Suite 700

Counsel for: Choctaw Telephone

Washington, D.C. 20037

Company, et al.

Counsel for: T-Mobile USA, Inc.

2

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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 26

William S. McCollough

David R. Irvine

McColloughHenry, PC

Jenson Stavros & Guelker

1250 South Capital of Texas

747 East South Temple, Suite 130

Highway

Salt Lake City, UT 84102

Suite 2-235

Counsel for: Direct Communications

West Lake Hills, TX 78746

Cedar Valley, LLC, et al.

Counsel for: Halo Wireless, Inc.

Mark J. O’Connor

Heather M. Zachary

E. Ashton Johnston

Elvis Stumbergs

Helen E. Disenhaus

Wilmer Cutler, et al.

Lampert, O’Connor & Johnston, PC

1875 Pennsylvania Avenue, N.W.

1776 K Street, N.W., Suite 700

Washington, D.C. 20006-1420

Washington, D.C. 20006

Counsel for: AT&T Inc.

Counsel for: The Voice On The Net

Coalition, Inc.

Robert B. Nicholson

Robert J. Wiggers

Christopher M. Heimann

U.S. Department of Justice

Gary L. Phillips

Antitrust Division, Appellate Section

Paul K. Mancini

950 Pennsylvania Avenue, N.W.

AT&T Inc.

Washington, D.C. 20530

1120 20th Street, N.W., Suite 1000

Counsel for: USA

Washington, DC 20036

Counsel for: AT&T

Bridget Asay

State of Vermont office of the

Scott H. Angstreich

Attorney General

Brendan J. Crimmins

109 State Street

Joshua D. Branson

Montpelier, VT 05609

Kellogg, Huber, Hansen, Todd,

Counsel for: Vermont PSB

Evans & Figel, PLLC

1615 M Street, N.W., Suite 400

Washington, D.C. 20036

Counsel for: Verizon

3

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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 27

Christopher J. Wright

Wiltshire & Grannis LLP

1200 18th Street, N.W.

Washington, D.C. 20036

Counsel for: Level 3

Communications, LLC and Sprint

Nextel Corporation

Thomas Jones

Glenn Richards

David P. Murray

Pillsbury Winthrop Shaw Pittman

Nirali Patel

2300 N Street, N.W.

Willkie, Farr & Gallagher LLP

Washington, D.C. 20037-1122

1875 K Street, N.W.

Counsel for: The Voice on the Net

Washington, D.C. 20006

Coalition

Counsel for: TW Telecom, Inc.

David E. Mills

Robert A. Long, Jr.

J.G. Harrington

Gerald J. Waldron

Dow Lohnes PLLC

Yaron Dori

1200 Ner Hampshire Avenue, N.W.

Enrique Armijo

Suite 800

Covington & Burling LLP

Washington, D.C. 20036-6802

1201 Pennsylvania Avenue, N.W.

Counsel for: Cox Communications,

Washington, D.C. 20004-2401

Inc.

Counsel for: CenturyLink, Inc.

Genevieve Morelli

Clare E. Kindall

ITTA

Assistant Attorney General

1101 Vermont Avenue, N.W.

Department Head-Energy

Suite 501

Office of the Attorney General

Washington, D.C. 20005

Ten Franklin Square

Counsel for: ITTA

New Britain, CT 06051

Counsel for Connecticut PURA

4

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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 28

Gregory J. Vogt

Craig S. Johnson

Law Offices of Gergory J. Vogt

Johnson & Sporleder, LLP

2121 Eisenhower Avenue, Suite 200

304 E High Street, Suite 200

Alexandria, VA 22314

P.O. Box 1670

Counsel for: National Exchange

Jefferson City, MO 65102

Carriers Association, Inc.

Counsel for: Choctaw Telephone

Company

Matthew A. Brill

Mark A. Stachiw

Latham & Watkins

MetroPCS Communications, Inc.

555 11th Street, Suite 1000

2250 Lakeside Blvd.

Washington, D.C. 20004

Richardson, TX 75082

Counsel for: Rural Cellular

Counsel for: MetroPCS

Association

Communications, Inc.

Michael B. Wallace

Paul M. Schudel

Rebecca Hawkins

Thomas J. Moorman

Wise Carter Child & Caraway, P.A.

Woods & Aitken LLP

401 E. Capitol Street

301 South 13th Street, Suite 500

Heritage Building, Suite 600

Lincoln, Nebraska 68508

Jackson, MS 39201

Counsel for: Nebraska Rural

Counsel for: Cellular South, Inc.

Independent Companies

Justin W. Kraske

Steven H. Thomas

Montana Public Service

McGuire Craddock & Strother, PC

Commission

2501 N. Harwood, Suite 1800

1701 Prospect Avenue

Dallas, TX 75201

P.O. Box 202601

Counsel for: Halo Wireless

Helena, MT 59620-2601

Counsel for : Monta Public

Service Commission

Michael E. Glover

Walter H. Sargent II, Esq.

Christopher M. Miller

1632 N. Cascade Avenue

Verizon Communications, Inc.

Colorado Springs, CO 80907

1320 N. Courthouse Road, 9th Flr.

Counsel for Transcom Enhanced

Arlington, VA 22201

Services, Inc., et al..

Counsel for: Verizon

5

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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 29

Samuel L. Feder

Caressa D. Bennet

Luke C. Platzer

Kenneth C. Johnson

Jenner & Block LLP

Daryl A. Zakov

1099 New York Avenue, N.W.

Anthony K. Veach

Washington, D.C. 20001

Bennet & Bennet, PLLC

Counsel for: Comcast Corporation

4350 East West Highway, Suite 201

Bethesda, MD 20814

Richard A. Askoff, Sr.

Counsel for: Rural

National Exchange Carrier

Telecommunications Group, Inc. and

Association, Inc.

Central Texas Telephone

80 South Jefferson Road

Cooperative, Inc.

Whippany, NJ 07981

Counsel for: National Exchange

Carriers Association, Inc.

Robert A. Fox

Dennis Lopach

Kansas Corporation Commission

Montana Public Service Commission

1500 SW Arrowhead Road

1701 Prospect Avenue

Topeka, KS 66606

P.O. Box 202601

Counsel for The State Corporation

Helena, MT 59620

Commission of the State of Kansas

Counsel for: Montana Public

Service Commission

Ivan C. Evilsizer

Evilsizer Law Office, PLLC

Sean Conway

2301 Colonial Drive, Suite 2B

James E. Tysse

Helena, MT 59601-4995

Akin Gump Strauss Hauer & Feld

Counsel for: Ronan Telephone

1333 New Hampshire Avenue, N.W.

Company, et al.

Washington, D.C. 20036

Counsel for: Gila River Indian

Don L. Keskey

Community, et al.

505 N. Capitol Avenue

Lansin, MI 48933

Counsel for: Allband

Communications Cooperative

6

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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 30

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

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

Holly R. Smith

Maureen A. Scott

James B. Ramsay

Janet F. Wagner

NARUC

Wesley C. Van Cleve

1101 Vermont Ave., N.W., Suite 200

Arizona Corporation Commission

Washington, D.C. 20005

Legal Division

Counsel for: NARUC

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 Corp. Commission

Jennifer McKee

Office of General Counsel

Steven F. Morris

P.O. Box 1197

NCTA

Richmond, VA 23218-1197

25 Masschusetts Avenue, N.W.

Counsel for: Virginia State

Suite 100

Corporation Commission

Washington, D.C. 20001

Counsel for: NCTA

7

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Appellate Case: 11-9900 Document: 01019291477 Date Filed: 08/07/2014 Page: 31

Michael C. Small

John B. Capehart

Akin Gump Strauss Hauer & Feld

Akin Gump Strauss Hauer & Feld

2029 Century Park E., Suite 2400

1700 Pacific Ave., Suite 4100

Los Angeles, CA 90067

Dallas, TX 75201

Counsel for: Gila River Indian, et al

Counsel for: Gila River Indian, et al

Jeffrey A. Lamken

Lucas M. Walker

Molo Lamken

600 New Hampshire Ave., NW

Suite 660

Washington, DC 20037

Counsel for: Windstream

Communications, Inc.

/s/ James M. Carr

8

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