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

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Released: March 22, 2013

Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 1
FEDERAL RESPONDENTS’ UNCITED RESPONSE TO TRIBAL CARRIERS’ PRINCIPAL BRIEF
IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

NO. 11-9900

IN RE: FCC 11-161

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

WILLIAM J. BAER
SEAN A. LEV
ASSISTANT ATTORNEY GENERAL
GENERAL COUNSEL


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


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

WASHINGTON, D.C. 20530
LAURENCE N. BOURNE

JAMES M. CARR
MAUREEN K. FLOOD
MATTHEW J. DUNNE
COUNSEL

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


Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 2

TABLE OF CONTENTS


Table of Authorities......................................................................................... iii 
Glossary ............................................................................................................. v 
Issue Presented .................................................................................................. 1 
Counterstatement ............................................................................................... 2 
A.  Universal Service Reform ..................................................................... 2 
1. 
New Universal Service Budget ......................................................... 3 
2. 
Reform Of Support For Rate-Of-Return Carriers ............................. 3 
3. 
Elimination Of The Identical Support Rule ...................................... 6 
4. 
Broadband Obligations ...................................................................... 7 
B.  Special Attention To Carriers Serving Tribal Lands ............................ 8 
1. 
Additional Wireless Support ............................................................. 9 
2. 
Tribal Engagement And Special Waiver Procedures ...................... 11 
3. 
Consideration Of Costs Unique To Carriers Serving
Tribal Lands In Creating The Benchmark
Methodology ................................................................................... 12 
Summary of Argument .................................................................................... 13 
Argument ......................................................................................................... 16 
I. 
The FCC Reasonably Exercised Its Discretion In Balancing
The Need For Universal Service Reform With The Special
Needs Of Carriers Serving Tribal Lands. ................................................ 16 
A.  The FCC Reasonably Concluded Reform Was Needed
For All Rate-of-Return Carriers. ......................................................... 16 
B.  The FCC Accommodated The Unique Needs Of Carriers
Serving Tribal Lands And Fully Explained Its Actions. ..................... 18 
i

Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 3
II.  The FCC Reasonably Predicted That Carriers Serving Tribal
Lands Will Have Sufficient Support To Provide Universal
Service. ..................................................................................................... 23 
III.  Any Carrier’s Additional Special Circumstances May Be
Addressed By A Waiver. ......................................................................... 30 
Conclusion ....................................................................................................... 33 
ii

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TABLE OF AUTHORITIES

CASES

 
Alenco Commc’ns, Inc. v. FCC, 201 F.3d 608 (5th
Cir. 2000) ........................................................................................ 17, 23, 30
Citizens’ Comm. To Save Our Canyons v. U.S.
Forest Serv., 297 F.3d 1012 (10th Cir. 2002) ............................................. 22
Colorado Wild, Heartwood v. U.S. Forest Serv.,
435 F.3d 1204 (10th Cir. 2006) ................................................................... 22
Morris Commc’ns, Inc. v. FCC, 566 F.3d 184 (D.C.
Cir. 2009) ..................................................................................................... 31
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto Ins. Co., 463 U.S. 29 (1983) ............................................. 16
Qwest Commc’ns Int’l, Inc. v. FCC, 398 F.3d 1222
(10th Cir. 2005) ........................................................................................... 17
Qwest Corp. v. FCC, 258 F.3d 1191(10th Cir. 2001) ................................ 2, 26
Rural Cellular Ass’n v. FCC, 588 F.3d 1095 (D.C.
Cir. 2009) .......................................................... 16, 17, 18, 23, 24, 28, 30, 32
Rural Cellular Ass’n v. FCC, 685 F.3d 1083 (D.C.
Cir. 2012) ....................................................................................................... 7
Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d
393 (5th Cir. 1999) ......................................................................... 16, 23, 24
Vermont Pub. Servs. Bd. v. FCC, 661 F.3d 54 (D.C.
Cir. 2011) ..................................................................................................... 30

STATUTES

 
47 U.S.C. §254(b)............................................................................................ 16
47 U.S.C. §254(b)(1) ....................................................................................... 16
47 U.S.C. §254(b)(4) ....................................................................................... 16
47 U.S.C. §254(b)(5) ................................................................................ 16, 24
47 U.S.C. §254(e) ....................................................................................... 6, 24

REGULATIONS

 
47 C.F.R. §54.400(e) ....................................................................................... 26
iii

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ADMINISTRATIVE DECISIONS

 
Connect America Fund, Notice of Proposed
Rulemaking, 26 FCC Rcd 4554 (2011) ....................................................... 27
Connect America Fund: High Cost Support, Sixth
Order on Reconsideration, FCC 13-16 (Feb 27,
2013) ............................................................................................... 13, 21, 25
Connect America Fund: High-Cost Universal
Service Support, 27 FCC Rcd 4235 (WCB 2012) .......................... 13, 21, 30
Establishment of the Office of Native Affairs &
Policy in the Consumer & Governmental Affairs
Bureau
, 25 FCC Rcd 11104 (2010) .............................................................. 9
Federal-State Joint Board on Universal Service, 15
FCC Rcd 12208 (2000) ............................................................................... 26
Improving Communications Services for Native
Nations by Promoting Greater Utilization of
Spectrum over Tribal Lands
, 26 FCC Rcd 2623
(2011) ............................................................................................................ 9

iv

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GLOSSARY

1996 Act
The Telecommunications Act of 1996
APA
Administrative Procedure Act
CAF
Connect America Fund
ETC
Eligible Telecommunications Carrier
FCC Federal
Communications
Commission
FNPRM
Further Notice of Proposed Rulemaking
HCLS
High Cost Loop Support
ICC Intercarrier
Compensation
LEC
Local Exchange Carrier
NPRM
Notice of Proposed Rulemaking
USF
Universal Service Fund
WCB Wireline
Competition
Bureau


v

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IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

NO. 11-9900

IN RE: FCC 11-161

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

FEDERAL RESPONDENTS’ UNCITED RESPONSE TO TRIBAL CARRIERS’ PRINCIPAL
BRIEF


ISSUE PRESENTED

In reforming its universal service rules in the Order, the Federal
Communications Commission (“FCC”) took numerous steps to advance
service on Tribal lands, including dedicating many millions of dollars to spur
mobile service, directing FCC staff to consider costs unique to Tribal carriers
when establishing a methodology for calculating a component of universal
service support, and requiring providers to consult and engage with Tribes on
a host of unique issues. Connect America Fund, 26 FCC Rcd 17663 (2011)
(“Order”) (JA__).
The issue presented is whether, in light of the FCC’s numerous
measures to promote universal service on Tribal lands specifically, the
agency reasonably exercised its discretion in also applying to carriers on

Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 8
Tribal lands the same universal service reforms designed to enhance
efficiency and accountability that govern all other rate-of-return carriers.

COUNTERSTATEMENT

A. Universal Service Reform

In the Order on review, the FCC “comprehensively reform[ed] and
moderniz[ed]” its rules for distributing high-cost universal service support.
Order ¶1 (JA__). Under the Telecommunications Act of 1996 (“1996 Act”),
the FCC advances universal service – i.e., “access to telecommunications
services” by “customers in all regions of the nation” – through a system of
explicit subsidies paid from the Universal Service Fund (“USF”). Qwest
Corp. v. FCC, 258 F.3d 1191, 1195 (10th Cir. 2001) (“Qwest I”). The USF is
funded through contributions from carriers – and ultimately their customers –
across the country. Id. at 1196. See generally FCC Preliminary Br. 3-10.
One component of this support system, “high-cost support,” subsidizes the
costs of carriers in areas where it is particularly expensive to provide service,
such as rural areas. Qwest I, 258 F.3d at 1195.
In the Order, the FCC concluded that the existing high-cost support
rules were “based on decades-old assumptions that fail[ed] to reflect today’s
networks, the evolving nature of communications services, or the current
competitive landscape.” Order ¶6 (JA__). In their place, the agency
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“adopt[ed] fiscally responsible, accountable, incentive-based policies,” and
“establish[ed] a framework to distribute universal service funding in the most
efficient and technologically neutral manner possible.” Id. ¶1 (JA__).
Several facets of that reform are relevant here.
1. New Universal Service Budget
For the first time, the agency adopted a budget for the high-cost
program within the USF, setting an annual target of no more than $4.5
billion, the same as the previous year. Id. ¶18 (JA__). This sum embodied
the agency’s “predictive judgment as to how best to allocate limited
resources,” and was an “important step[] to control costs and improve
accountability in USF” and to “protect consumers and businesses that
ultimately pay for the fund through fees on their communications bills.” Id.
2. Reform Of Support For Rate-Of-Return Carriers
Within this new budget, the FCC also reformed the system that
provides this high-cost support, with different reforms for “price cap” and
“rate-of-return” carriers. See FCC Preliminary Br. 10 & nn.7-8. For price
cap carriers, which set their rates at or below a regulatory maximum, the FCC
maintained high-cost support at existing levels, and made available additional
funds to spur broadband in unserved areas – $300 million in “Phase I” and up
to $1.8 billion annually in “Phase II.” Order ¶¶22, 25 (JA__, __).
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Rate-of-return carriers, by contrast, are small, generally rural carriers
that charge rates designed to recover their capital and operating costs, plus a
return set by regulators. FCC Preliminary Br. 10. Petitioner Gila River
1
Telecommunications, Inc. (“Gila River”) is a rate-of-return carrier. Br. 6.
Although rate-of-return carriers serve fewer than five percent of access lines
in the U.S., support for these carriers amounted to nearly $2 billion of the
$4.5 billion of high-cost support collected in 2011. Order ¶26 (JA__).
In the Order, the FCC noted that the then-existing regime, with a return
on expenses, “impose[d] no practical limits on the type or extent of network
upgrades or investment” made by rate-of-return carriers. Order ¶287 (JA__).
The rules “provide[d] universal service support to both a well-run company
operating as efficiently as possible, and a company with high costs due to
imprudent investment decisions, unwarranted corporate overhead, or an
inefficient operating structure.” Id.
The agency therefore instituted a new framework to determine support
for these carriers in order to “increas[e] accountability and incentives for
efficient use of public resources.” Id. ¶26 (JA__) ; see id. ¶¶285-290 (JA__).
Because this reform “is focused on rooting out inefficiencies,” it “will not

1In this brief, “Gila River” generally also refers to co-petitioner Gila River
Indian Community.
4

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affect all carriers in the same manner or in the same magnitude.” Id. ¶289
(JA__). Indeed, the agency expected that “carriers that invest and operate in
a prudent manner will be minimally affected.” Id. Areas served by rate-of-
return carriers would continue to receive up to $2 billion in support of the
total $4.5 billion Connect America Fund (“CAF”) budget, as they had
previously, and the agency’s analysis showed that nearly half of rate-of-return
carriers would see no change or even a slight increase in support. Id. ¶¶286,
290 (JA__, __). And of those that would see a reduction, 70% would see a
2
reduction of less than 10%. Id. ¶290 (JA__). “After significant analysis,”
the FCC was “confident that these incremental reforms will not endanger
existing service or consumers.” Id. ¶289 (JA__).
Among these reforms was a new system for determining rate-of-return
carriers’ High Cost Loop Support (“HCLS”), which helps offset carriers’
capital and operating costs that are unusually high, as compared to the
national average. Id. ¶216 & n.347 (JA__); see generally FCC Principal USF
Br. 40-45, 48-49. In order to “ensur[e] that companies do not receive more

2 Gila River’s assertion that 66% of all rate-of-return carriers would see a
reduction in high-cost support under the new rules (Br. 16) is based on a
misunderstanding of the Order. The Order predicts that almost 34% of rate-
of-return carriers will see no reduction in high-cost support, and more than
12% will see an increase in support, Order ¶290 (JA__), for a total of 46%
who would see either no reduction or an increase.
5

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support than necessary to serve their communities,” the agency implemented
“benchmarks for prudent levels of capital and operating costs.” Order ¶ 210
(JA__). To set those benchmarks, the FCC directed its Wireline Competition
Bureau to employ a regression analysis of companies’ “cost, geographic and
demographic data,” to limit support “to reasonable amounts relative to other
carriers with similar characteristics.” Id. ¶216 (JA__).
3. Elimination Of The Identical Support Rule
The “identical support rule” had provided competitive eligible
3
telecommunications carriers (“ETCs”) the same per-line amount of high-cost
universal service support as the incumbent carriers in the same area –
regardless of the competitive carriers’ actual costs of providing service.
Order ¶¶498, 502 (JA__, __); see generally FCC Response to Wireless
Carrier USF Principal Br. 33-36. “Based on more than a decade of
experience with the operation of the [existing] rule,” the FCC found that it
had “not functioned as intended.” Order ¶502 (JA __). Instead of supporting
“the most efficient providers as they captured customers from …
incumbent[s]” (as the agency had originally envisioned), the rule provided
duplicative support to wireless ETCs serving households that had multiple

3 An ETC is a carrier designated eligible to receive universal service
support. 47 U.S.C. §254(e).
6

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mobile phones and that also still subscribed to USF-subsidized wireline
service. Id. ¶503 (JA__); see also Rural Cellular Ass’n v. FCC, 685 F.3d
1083, 1094 (D.C. Cir. 2012). The FCC concluded that this duplicative
support was “no longer necessary or in the public interest,” especially in light
of the explicit support for mobile services adopted by the Order. Order ¶502
(JA__).
4. Broadband Obligations
As part of its modernization of universal service, the FCC also set out a
new requirement that supported carriers must offer broadband. Order ¶65
(JA__); see generally FCC Preliminary Br. 22-24; FCC Principal USF Br. 12-
24. In this regard, however, the agency established a “more flexible
approach” for rate-of-return carriers, which need only provide broadband
“upon reasonable request.” Order ¶206 (JA__); see FCC Principal USF Br.
34. Because these carriers “will not necessarily be required to build out to
and serve the most expensive locations within their service area,” the FCC
found that this obligation was a “reasonable” part of the package of reforms.
Order ¶207 (JA__).
7

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B. Special Attention To Carriers Serving Tribal Lands

As part of this comprehensive overhaul of the high-cost support
4
framework, the FCC recognized that communities on Tribal lands “have
historically had less access to telecommunications services than any other
segment of the population.” Order ¶479 (JA__). This “digital divide,” id.
¶636 (JA__), stems in part from the cost of deploying infrastructure on Tribal
lands in “rural high-cost areas” – a factor shared by many carriers that serve
rural, non-Tribal areas – and in part from other “distinct obstacles,” id. ¶479
(JA__), both economic and cultural. These include: “a high concentration of
low-income individuals with few business subscribers,” “cultural and
language barriers,” special procedures for “obtaining access to rights-of-way
on Tribal lands,” and distinctive “jurisdictional issues” involving Tribal and
state authorities, id. ¶482 (JA__).
For over a decade, the FCC has worked to facilitate deployment of
voice and broadband on Tribal lands. To that end, the agency has employed
measures such as enhanced low-income universal service support to
consumers on Tribal lands through the Lifeline and Link Up programs, and

4 “Tribal lands” refers to “any federally recognized Indian tribe’s
reservation, pueblo or colony, including former reservations in Oklahoma,”
“Alaska Native regions,” “Indian Allotments,” and “Hawaiian Home Lands.”
Order n.197 (JA__).
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bidding credits in spectrum license auctions for wireless providers serving
qualifying Tribal lands. See generally Improving Communications Services
for Native Nations by Promoting Greater Utilization of Spectrum over Tribal
Lands, 26 FCC Rcd 2623, 2626-27 ¶¶5-9 (2011). These programs and
incentives continue. In 2010, the FCC also created an Office of Native
Affairs and Policy to act as the “official Commission liaison for ongoing
consultation, coordination, and outreach to” Native communities.
Establishment of the Office of Native Affairs & Policy in the Consumer &
Governmental Affairs Bureau, 25 FCC Rcd 11104, 11105 ¶5 (2010).
In the Order on review, the FCC implemented a number of new
measures aimed at bridging this “digital divide.”
1. Additional Wireless Support
First, the FCC created the Tribal Mobility Fund Phase I, a $50 million
fund distributed by reverse auction to “provide one-time support to deploy
mobile broadband to unserved Tribal lands.” Order ¶481 (JA__). While
carriers on Tribal lands were also eligible for support from the $300 million
general Mobility Fund Phase I for underserved areas throughout the country,
5
id., the agency found that an additional, “more tailored approach” for Tribal

5 See generally FCC Preliminary Br. 29-30; FCC Response to Wireless
Carrier USF Principal Br. 31-32.
9

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lands was appropriate “[i]n light of the Commission’s unique government-to-
government relationship with Tribes and the distinct challenges in bringing
communications services to Tribal lands.” Id. ¶479 (JA__). The FCC set the
size of the Tribal Mobility Fund Phase I at $50 million after balancing the
needs of carriers serving Tribal communities with the agency’s “commitment
to fiscal responsibility” and competing priorities for the “limited funds”
available. Id. ¶485 (JA__). The FCC predicted that this “targeted,”
“significant” support would make a difference in “expanding the availability
of mobile broadband in Tribal lands.” Id.
Second, the FCC created a 25 percent bidding credit for Tribally-
owned or -controlled providers seeking support from both the general and
Tribal Phase I Mobility Funds to serve their Tribal lands. Id. ¶¶430, 490
(JA__, __). Because these funds are awarded by reverse auction, see
generally id. ¶¶419-428 (JA__-__), this “‘reverse’ bidding credit …
effectively reduce[s] the bid amount by 25 percent for the purposes of
comparing it to other bids, thus increasing the likelihood that a Tribally-
owned or controlled entity would receive funding,” id. ¶430 (JA__). And
because this makes the award of funds to carriers on Tribal lands more likely,
it benefits not just Tribally-owned carriers, but also their consumers on Tribal
lands.
10

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Third, as part of the newly established $500 million-a-year Mobility
Fund Phase II for “ongoing support” of mobile broadband, the FCC
“anticipate[d] that [it] would designate up to $100 million” each year “to
address the special circumstances of Tribal lands.” Order ¶494 (JA__).
Because “many Tribal lands require ongoing support in order to provide
service,” the agency found that this “substantial level of funding” would help
“ensure that these communities are not left behind.” Id. ¶497 (JA__).
2. Tribal Engagement And Special Waiver Procedures
In response to comments from the National Tribal Telecommunications
Association and others stressing the importance of “consultation with
Tribes,” Order ¶636 (JA__), the FCC also required providers on Tribal lands
that receive CAF support to “demonstrate on an annual basis that they have
meaningfully engaged Tribal governments in their supported areas,” id. ¶637
(JA__). These discussions between carriers and Tribal governments must
include, among other things, an assessment of Tribal needs and feasibility
planning, culturally sensitive marketing practices, rights-of-way processes,
environmental and cultural review, and compliance with Tribal business and
licensing requirements. Id. A carrier that fails to engage Tribal governments
in these discussions faces potential reduction in support. Id.
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In addition, the FCC made special accommodations for carriers serving
Tribal lands to petition for an exemption (or “waiver”) from a reduction in
subsidies. Order ¶¶542-543 (JA__-__). As explained in the FCC Principal
USF Brief (35), the agency permits any carrier to petition for a waiver by
showing it is necessary “to ensure consumers in the area continue to receive
voice service.” Order ¶539 (JA__). The FCC invited carriers serving Tribal
lands and insular areas to include information about special “operating” or
“economic conditions” or other “unique characteristics of those communities”
in support of a waiver request. Id. ¶542 (JA__). The FCC also directed its
implementing Bureaus to “prioritize” review of waiver petitions filed by
providers serving Tribal lands. Id. ¶544 (JA__).
3. Consideration Of Costs Unique To Carriers Serving

Tribal Lands In Creating The Benchmark
Methodology

As discussed above, the FCC instituted a new framework under which
the costs of rate-of-return carriers would be compared by regression analysis
to the costs of “other carriers with similar characteristics.” Order ¶216
(JA__). In the accompanying Further Notice of Proposed Rulemaking, the
agency sought comment “on whether network operation and investment by
Tribally-owned and operated carriers [are] significantly different from non-
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Tribal conditions to warrant special treatment for purposes of establishing
benchmarks for permissible … costs.” Id. ¶1088 (JA__).
After notice and comment, the FCC’s Wireline Competition Bureau
(“WCB”) released an order setting out the benchmark methodology. Connect
America Fund: High-Cost Universal Service Support, 27 FCC Rcd 4235
(WCB 2012) (“Benchmarking Order”). The WCB agreed with commenters
“that carriers serving … Tribal lands … could face unique challenges,” and
included in its methodology a variable for the percentage of the coverage area
on Tribal lands. Id. at 4244-45 ¶23. Because the WCB concluded that this
Tribal variable correlates positively with costs, id. at 4266 ¶102, the variable
will raise the benchmark cap in proportion to the percentage of a carrier’s
territory that is Tribal land. In its recent Order on Reconsideration regarding
the WCB’s benchmark methodology, the FCC left the Tribal variable intact.
See generally Connect America Fund: High Cost Support, Sixth Order on
Reconsideration, FCC 13-16, ¶2 (Feb. 27, 2013) (“Sixth Order on
Reconsideration”).

SUMMARY OF ARGUMENT

In its comprehensive overhaul of universal service regulations, the
FCC took “overdue steps” to reform its system of support for rate-of-return
carriers like Gila River, moving from a framework that “no longer [made]
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sense in today’s marketplace” to one that would “ensur[e] basic fiscal
responsibility” and “reward only prudent and efficient investment.” Order
¶¶287-288 (JA__-__). Rather than instituting “indiscriminate industry-wide
reductions,” id. ¶287 (JA__), the new rules “focus[] on rooting out
inefficiencies,” and will only “minimally affect[]” carriers that already
“invest and operate in a prudent manner,” id. ¶289.
In undertaking this overdue reform, the FCC carefully considered the
needs of carriers serving Tribal lands and acted to bridge the “deep digital
divide that persists between the Native Nations of the United States and the
rest of the country.” Order ¶636 (JA__). The FCC dedicated many millions
of dollars to spur mobile service on Tribal lands, directed its staff to consider
costs unique to Tribal carriers in formulating its wireline benchmark
methodology, and required providers to consult and engage with Tribes on a
variety of unique issues. All of these measures are in addition to other
continuing efforts to stimulate deployment and service on Tribal lands, such
as enhanced Lifeline and Link Up support for low-income consumers, see
supra 8-9.
Gila River – the only Tribal carrier to challenge the Order
nonetheless argues that these measures are insufficient. Focusing on rate-of-
return carriers on Tribal lands, Gila River paints a distorted picture of slashed
14

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revenues and increased broadband obligations. Br. 16-17. In the first place,
many Tribal areas are served by price cap carriers that will receive more
funding, not less. Moreover, substantial additional aid will go to wireless
carriers on Tribal lands. Reductions in intercarrier compensation will be
offset by a new explicit CAF subsidy that helps many carriers by mitigating
the extent of their declining intercarrier revenues under the status quo. And
rate-of-return carriers like Gila River will continue to receive, as a group,
roughly the same amount of high-cost support as before ($2 billion), although
it will be reallocated among them by measures intended to reward greater
efficiency.
Gila River would apparently prefer to be exempted from reform
entirely, with support “guaranteed at existing” levels. Br. 28. But the FCC
reasonably balanced the special needs of carriers serving Tribal lands against
its “commitment to fiscal responsibility and the varied objectives … for …
limited funds.” Order ¶485 (JA__). The agency explained why it took the
measures it did, including multiple actions designed to facilitate universal
service on Tribal lands, and why it believes support will be “sufficient.”
Finally, to account for any special cases requiring enhanced support, the
agency established waiver procedures available to all carriers and directed its
staff to give priority to requests from carriers that serve Tribal lands.
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Determining how best to balance section 254’s interest in providing
sufficient – but not excessive – support against the need to accommodate the
special circumstances of carriers serving Tribal lands is a quintessential
policy judgment that Congress has entrusted to the FCC. Motor Vehicle
Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 42
(1983); Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1103 (D.C. Cir. 2009)
(“RCA I”).

ARGUMENT

I.

THE FCC REASONABLY EXERCISED ITS DISCRETION
IN BALANCING THE NEED FOR UNIVERSAL SERVICE
REFORM WITH THE SPECIAL NEEDS OF CARRIERS
SERVING TRIBAL LANDS.

A. The FCC Reasonably Concluded Reform Was Needed

For All Rate-of-Return Carriers.

The FCC must base its universal service policies on the principles set
out in section 254(b) of the Act, 47 U.S.C. §254(b), including promoting: (1)
quality service available across the nation at “just, reasonable, and affordable
rates,” (2) “equitable” contributions to support by carriers, and (3) support
that is “specific, predictable and sufficient.” 47 U.S.C. §254(b)(1), (4)-(5).
The FCC “enjoys broad discretion” in striking a balance among these
competing factors. RCA I, 588 F.3d at 1103; Tex. Office of Pub. Util.
Counsel v. FCC, 183 F.3d 393, 444 (5th Cir. 1999) (“TOPUC”). In
particular, because excess subsidization to high-cost areas may lead to
16

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inequitable or unaffordable rates for customers in other areas, “[t]he agency’s
broad discretion to provide sufficient universal service funding includes the
decision to impose cost controls to avoid excess expenditures that will detract
from universal service.” Alenco Commc’ns, Inc. v. FCC, 201 F.3d 608, 620-
21 (5th Cir. 2000); see also Qwest Commc’ns Int’l, Inc. v. FCC, 398 F.3d
1222, 1234 (10th Cir. 2005) (“Qwest II”); RCA I, 588 F.3d at 1103.
The FCC exercised this discretion in the Order, taking a number of
“overdue steps” to “correct[] program design flaws, extend[] successful
safeguards, ensur[e] basic fiscal responsibility, and clos[e] loopholes.” Order
¶288 (JA__). Whereas the old rules “provid[ed] an opportunity for a stable
11.25 percent interstate return for rate-of-return companies, regardless of the
necessity or prudence of any given investment,” the new rules for these
carriers “reward only prudent and efficient investment in modern networks.”
Id. ¶287-288 (JA__-__).
Among these reforms, the FCC explained that the new benchmark
methodology would incentivize “greater operational efficiencies.” Id. ¶¶214-
216 (JA__-__). And excess subsidies that would otherwise go to carriers
with unusually high costs as compared to similarly-situated peers could
instead be “redistributed” to other carriers in order to advance universal
service goals. Id. ¶220 (JA__). The FCC also explained the need to
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eliminate the flawed identical support rule, which provided support with “no
relation to the efficient cost of providing mobile voice service” and which
failed to provide “appropriate incentives for entry.” Id. ¶¶504-505 (JA__-
__); see RCA I, 588 F.3d at 1108 (upholding earlier interim cap on identical
support rule in light of the rule’s contribution to a “dramatic increase in …
high-cost support”).
The agency explicitly balanced the principles set forth in section
254(b) and found that its package of reforms for support of rate-of-return
carriers “will advance the Commission’s goals of ensuring fiscal
responsibility in all USF expenditures, increasing the accountability for Fund
recipients, and extending modern broadband-capable networks.” Order ¶194
(JA__). After significant analysis, including review of numerous cost studies
submitted by individual small companies and cost consultants, as well as
other studies from industry groups, the FCC concluded that “these
incremental reforms will not endanger existing service to consumers.” Id.
¶289(JA__).

B. The FCC Accommodated The Unique Needs Of Carriers

Serving Tribal Lands And Fully Explained Its Actions.

At the same time, the FCC noted a number of factors that “may
increase the cost of entry and reduce the profitability of providing service” on
Tribal lands. Order ¶482 (JA__). The agency also acknowledged that
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“greater financial support … may be needed in order to ensure the availability
of broadband in Tribal lands.” Id. ¶479 (JA__).
To address this need, the agency created a $50 million Tribal Mobility
Fund, with up to $100 million more each year for ongoing support on Tribal
lands. This “tailored” approach to Tribal lands was appropriate “[i]n light of
the Commission’s unique government-to-government relationship with
Tribes” as well as “distinct challenges in bringing communications services
to Tribal lands.” Id. The agency predicted that “$50 million in one-time
support will help to extend the availability of mobile voice and broadband
services.” Id. ¶482 (JA__). After considering the comments of Gila River
and others, the FCC further explained that the $50 million figure was
sufficiently large to “make a difference,” while still remaining “consistent
with [the FCC’s] commitment to fiscal responsibility and the varied
objectives [for] limited funds.” Id. ¶485 (JA__). The FCC also concluded
that the 25 percent bidding credit for Tribal carriers would “increas[e] the
likelihood that a Tribally-owned or controlled entity would receive funding”
from the Mobility Phase I funds in order to serve their lands. Id. ¶430
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6
(JA__). The agency reasoned that the “Tribal and general Mobility Fund
Phase I auctions, in addition to the ongoing support mechanisms,” would
provide “meaningful support” to “accelerate mobile broadband deployment
on Tribal lands” for the benefit of consumers. Id. ¶485 (JA__).
In reforming High Cost Loop Support for rate-of-return carriers, the
FCC again took special measures to consider costs unique to carriers serving
Tribal lands. Because the agency intended to set benchmark caps for this
support by comparing a carrier’s costs to “carriers with similar
characteristics,” id. ¶216 (JA__), it sought further comment on how and
whether this benchmark methodology should specifically account for unique
7
conditions on Tribal lands, id. ¶1088 (JA__).

6 Indeed, in a recent auction, carriers – including one claiming the Tribal
bidding credit – won bids making them eligible to receive over $25 million in
general Mobility Fund Phase I support to provide service on twenty-six Tribal
lands in eight states. See FCC, Wireless Telecommc’ns Bureau, “Mobility
Fund Phase I Auction – Winning Bids Sorted by State and County,” available
at
http://wireless.fcc.gov/auctions/901/reports/
901winning_bids_by_state_county.xls (listing winning bids); FCC, Wireless
Telecommc’ns Bureau, “Biddable Items,” available at
http://wireless.fcc.gov/auctions/901/901_biddable_items_090712.xls.
(describing bid areas).
7 Gila River argues in a footnote that the FCC’s benchmark methodology
should be discounted because the methodology “fails to ensure” that the
“unique circumstances” of carriers serving Tribal lands “will be considered.”
Br. 28 n.3. That is incorrect. The methodology adopted by the WCB
includes an “independent variable for the percentage of each study area that is

20

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Finally, recognizing that not all challenges to successful deployment on
Tribal lands stem from economic causes, the FCC also required supported
carriers to engage with Tribal governments annually on a variety of issues,
which the agency explained were “vitally important to … successful
deployment” on Tribal lands. Id. ¶637 (JA__). And it facilitated the general
waiver process for carriers serving Tribal lands by inviting them to discuss
any “unique characteristics” such as special “operating” or “economic
conditions,” and directing the Bureaus to expedite review of those waiver
petitions. Id. ¶542 (JA__).
In light of this extensive record, Gila River’s assertion that the FCC
offered “no explanation” for how its reform will advance universal service,
including universal service to Tribal lands (Br. 24-25), is difficult to
comprehend. The FCC explained at length why general reform for rate-of-
return carriers was required, and further explained why it was addressing
deployment on Tribal lands through a host of other “tailored” measures. The
agency consistently “ma[d]e plain its course of inquiry, its analysis, and its
reasoning.” Colorado Wild, Heartwood v. U.S. Forest Serv., 435 F.3d 1204,

a federally-recognized Tribal land” precisely to account for the possibility
that “it is more costly to provide service on Tribal lands.” Benchmarking
Order
, 27 FCC Rcd at 4244-45 ¶23; see supra 13. The FCC has left the
Tribal variable intact. Sixth Order on Reconsideration ¶2.
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1213 (10th Cir. 2006); see Citizens’ Comm. To Save Our Canyons v. U.S.
Forest Serv., 297 F.3d 1012, 1035 (10th Cir. 2002). The APA requires no
more.
Gila River also complains that the agency acted unreasonably by
purportedly applying a “one-size-fits-all treatment” (Br. 25) to carriers
serving Tribal lands and treating “apples as oranges” (Br. 28), but that
assertion is equally difficult to fathom. As a threshold matter, even the
general framework for rate-of-return carriers is not a “one-size-fits-all
treatment,” because support is still based on each carrier’s individual costs,
and the new benchmark methodology sets caps by comparison to carriers
with similar characteristics. Order ¶216 (JA__). And for carriers on Tribal
lands in particular, the FCC made numerous specific adjustments to its rules
to accommodate their special circumstances, such as the dedicated Tribal
Mobility Funds, bidding credits for Tribally-owned entities, special waiver
procedures, a Tribal engagement requirement, and the consideration of
unique costs in implementation of the benchmark rule. These changes were
in addition to the longstanding (and continuing) FCC initiatives to advance
universal service in such areas, including enhanced funding to serve low-
income individuals who live on Tribal lands. See supra 8-9.
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Gila River seems to argue that it was irrational for the FCC not to
exempt rate-of-return carriers on Tribal lands from the reformed framework
altogether. To be sure, some obstacles to universal service on Tribal lands
“have nothing to do with inefficiency or waste.” Br. 31. But the FCC had no
reason to believe rate-of-return carriers on Tribal lands were somehow
systemically immune from inefficiency. And Gila River offers no basis to
reach that conclusion here. The agency therefore acted within its “broad
discretion,” Alenco, 201 F.3d at 620-21, in deciding that carriers on Tribal
lands should be subject to the same general incentives to operate efficiently
and invest prudently, id. ¶289 (JA__), as all other carriers. Particularly in
light of the specific, tailored actions described above, that policy judgment is
entitled to deference. RCA I, 588 F.3d at 1103; Alenco, 201 F.3d at 620-21;
TOPUC, 183 F.3d at 444.

II.

THE FCC REASONABLY PREDICTED THAT CARRIERS
SERVING TRIBAL LANDS WILL HAVE SUFFICIENT
SUPPORT TO PROVIDE UNIVERSAL SERVICE.

At root, Gila River’s fundamental complaint is not that the FCC failed
to take any special measures to assist carriers serving Tribal lands, or that the
agency failed to provide an explanation for its actions, although Gila River
does frame its arguments in those terms. Rather, it disagrees with the FCC’s
judgment that the measures the agency took in reforming universal service
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will be “sufficient … to preserve and advance universal service,” 47 U.S.C.
§ 254(b)(5), (e), on Tribal lands. Br. 30-33.
Gila River faces an uphill battle in seeking to overturn that judgment.
“[W]hat constitutes ‘sufficient’ support” within the meaning of section 254 is
“ambiguous.” TOPUC, 183 F.3d at 425. Thus, when “the FCC offer[s]
reasonable explanations of why it thinks the funds will still be ‘sufficient’ to
support high-cost areas,” a court must “defer to the agency’s judgment.” Id.
at 426. This is particularly true when the agency “must make predictive
judgments about the effects of increasing subsidies,” where “certainty is
impossible.” RCA I, 588 F.3d at 1105.
In the Order, the FCC concluded that universal service reforms “will
not endanger existing service to consumers,” will “minimally … affect[]”
rate-of-return carriers that “invest and operate in a prudent manner,” Order
¶289 (JA__), and “on the whole,” will provide such carriers with “a stronger
and more certain foundation from which to operate.” Id. ¶291 (JA__). This
conclusion was based on “significant analysis, including review of numerous
cost studies submitted by individual small companies and cost consultants,
[National Exchange Carrier Association] and [Universal Service
Administrative Company] data, and aggregated information provided by the
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Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 31
Rural Utilities Service,” id. ¶289 (JA__), and was entirely reasonable. See
FCC Principal USF Br. 33-38.
Gila River nonetheless contends that the FCC’s reform will result in
“massive” and “draconian” funding cuts to carriers serving Tribal lands. Br.
19. That is not so. First, Gila River ignores the fact that many carriers
serving Tribal lands are price cap carriers, to which the agency made
available considerable additional funding to spur broadband deployment – in
CAF Phase I, $300 million in addition to 2011 levels, and in CAF Phase II,
up to $1.8 billion annually. Order ¶¶22, 25 (JA__, __). And, for rate-of-
return carriers like Gila River, the Order makes clear that as a group they will
continue to receive up to $2 billion in support just as they did before reform,
and nearly half of those carriers will see no change or even a slight increase
in support. Id. ¶290 (JA__); see supra n.2. As for those rate-of-return
carriers that do receive less funding, the substantial majority (70 percent) will
8
experience reductions of less than 10 percent. Id.

8 The FCC recently made a minor modification to the regression
methodology to “provide [rate-of-return] carriers with greater flexibility to
account for the specific needs of their locales and networks,” directing the
WCB to use a single cap on all supported costs, rather than separate caps on
capital and operating expenses as contemplated by the WCB’s Order. Sixth
Order on Reconsideration
¶26.
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Moreover, challenges to the sufficiency of universal service support
can be evaluated only in light of the “full extent of federal support.” Qwest I,
258 F.3d at 1205. Here, Gila River ignores the fact that consumers in Tribal
communities are also eligible for “additional, targeted support under the
Commission’s low-income programs” – Lifeline and Link Up – that create
“financial incentives” for telecommunications service to Tribal lands. See
Federal-State Joint Board on Universal Service, 15 FCC Rcd 12208, 12213
¶5 (2000); see also 47 C.F.R. §54.400(e). In addition, carriers serving Tribal
lands may be eligible to receive support from the $100 million the FCC has
budgeted for CAF support in “the most remote areas.” Order ¶¶533-538
(JA__-__). These additional sources of support for universal service on
Tribal lands further affirm the reasonableness of the agency’s sufficiency
9
determination.

9 Gila River argues in passing that “the Order’s ‘bill-and-keep’ intercarrier
compensation changes … will result in reduced funding for those carriers
serving the most insular and high-cost areas.” Br. 31 n.4. Gila River fails to
mention that the Order provides a new CAF recovery mechanism to
supplement revenue reductions from intercarrier compensation (“ICC”)
reform. Order ¶918 (JA__). This “measured, predictable” supplement, id.
¶917 (JA__), represents an improvement over the status quo, under which
many carriers’ ICC revenues were declining more rapidly. Id. ¶¶894, 900-
901 (JA__, __-__). The FCC therefore reasonably predicted that the
reformed ICC regime would be “more than sufficient to provide carriers

26

Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 33
Gila River also contends (Br. 25-28) that the new rules conflict with
the Order’s observation that “greater financial support … may be needed in
order to ensure the availability of broadband in Tribal lands.” Order ¶479
(JA__) (citing Connect America Fund, 26 FCC Rcd 4554, 4581 ¶33 (2011)
(JA__, __) (“NPRM”)). But, as we have shown, the Order takes account of
the special circumstances governing service to Tribal lands in a number of
ways, including by setting aside millions of dollars for mobility services on
10
Tribal lands, see id. ¶¶481, 497 (JA__, __), and by establishing a bidding
credit for Tribally-owned or -controlled providers, id. ¶487 (JA__).
Moreover, in observing that “greater financial support … may be needed,” id.
¶479 (JA__), the FCC never suggested that each and every carrier serving

reasonable recovery for regulated services,” id. ¶924 (JA__); see generally
FCC Principal ICC Br. 45-54.
10 Gila River disparages the Tribal Mobility Fund support of $50 million
and up to $100 million annually as “insufficient replacements for the identical
support rule,” which the Order eliminated as duplicative and unnecessary.
Br. 17, 31-32. However, the $50 million in Tribal Mobility Fund Phase I was
in addition to the general Phase I Mobility Fund, for which carriers serving
Tribal lands were also eligible. Order ¶481 (JA__); see supra n.6 (carriers
serving Tribal lands won bids worth over $25 million from general Mobility
Fund). In any event, the Tribal Mobility Fund was not intended as a
“replacement” for the identical support rule. That rule was abolished because
it created misaligned incentives by offering substantial duplicative funding to
competitors where an incumbent already offered service. Id. ¶498 (JA__).
The Mobility Funds serve the entirely distinct purpose of offering support for
mobile broadband “where such services are unavailable.” Id. ¶314 (JA__).
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Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 34
Tribal lands must receive an increase in support regardless of section 254’s
requirements that support be sufficient but not excessive, see RCA I, 588 F.3d
at 1102-03, or regardless of the agency’s commitment “to fiscal responsibility
and the varied objectives … for [its] limited funds.” Order ¶485 (JA__).
Gila River next argues that the FCC should have frozen support for all
carriers serving Tribal lands at 2011 levels, as the agency did for price cap
carriers, because the FCC did not conclude that areas “served by price cap
carriers were worse served than Tribal lands served by rate-of-return
carriers.” Br. 28. This contention overlooks the historical distinctions
between the existing universal service regimes for price cap and rate-of-return
carriers. Because the previous framework for rate-of-return carriers provided
a stable return “regardless of the necessity or prudence of any given
investment,” the FCC reformed the rules to “reward only prudent and
efficient investment.” Order ¶¶277, 288 (JA__, __). By contrast, price cap
carriers remain subject to a different regulatory regime that already
incorporates its own incentives for efficiency.
Moreover, “more than 83 percent of the unserved locations in the
nation are in price cap areas, yet such areas currently receive approximately
25 percent of high-cost support.” Order ¶158 (JA__). The FCC therefore
reasonably “conclude[d] that increased support to areas served by price cap
28

Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 35
carriers” through additional CAF funding for broadband was “warranted.” Id.
¶159 (JA__). That rationale did not apply to rate-of-return carriers like Gila
River.
Gila River complains that at the same time the FCC reformed its
universal service framework for rate-of-return carriers, it “increased their
load” by requiring them to provide broadband “upon reasonable request.” Br.
30. See Order ¶206 (JA__). But, as we have explained, under that “flexible
approach,” id., service need not be provided where doing so would be
“unreasonable” (that is, where high-cost support would be insufficient to
make deployment economically reasonable). See FCC Principal USF Br. 34.
Indeed, the FCC “exempted the most remote areas” of the country (which
include many Tribal lands) from the obligation to provide broadband services
precisely because such areas are “difficult-to-serve.” Order ¶533 (JA__).
Finally, Gila River asserts that “it will receive between $300,000 and
$1.6 million less annually in high-cost support” as a result of the FCC’s
reforms. Br. 16. But this estimate relies on comments filed before the FCC’s
Order was even issued (see id.), and thus cannot be based on the framework
the FCC actually adopted. Indeed, when the WCB implemented the
benchmark rule for rates in 2012 and 2013, Gila River’s costs were
considerably under the benchmark cap, Benchmarking Order, App. B, 27
29

Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 36
FCC Rcd at 4284, and Gila River therefore has so far seen no reduction of its
High Cost Loop Support as a result of the FCC’s reform. Moreover, even if
Gila River were to receive less support, “[t]he purpose of universal service is
to benefit the customer, not the carrier.” RCA I, 588 F.3d at 1103-04 (quoting
Alenco, 201 F.3d at 621). Because Gila River “include[s] no cost data
showing [it] would, in fact, have to leave customers without service as a
result” of the agency’s reforms, it offers “no valid reason to believe the
principle of ‘sufficiency’… will be violated.” RCA I, 588 F.3d at 1103-04.

III. ANY CARRIER’S ADDITIONAL SPECIAL

CIRCUMSTANCES MAY BE ADDRESSED BY A
WAIVER.

Finally, even if it were the case that Gila River – or any other
individual carrier serving Tribal lands – lacked sufficient support to continue
serving customers, this would “not establish that the cap unreasonably fails to
provide sufficient service” as a general matter, but would instead “at most …
present[] an anomaly that can be addressed by a request for a waiver.”
Alenco, 201 F.3d at 621; see also Vermont Pub. Serv. Bd. v. FCC, 661 F.3d
54, 65 (D.C. Cir. 2011); RCA I, 588 F.3d at 1104; FCC Principal USF Br. 35.
The FCC specifically has invited carriers that submit waiver applications to
attempt to show that provision of service on Tribal lands presents unique
“operating” or “economic conditions” that “warrant[] relief.” Order ¶542
30

Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 37
(JA__). The agency has already granted Standing Rock, “a nascent Tribally-
owned” competitive carrier, a “two-year exception to the phase-down of
support” under the identical support rule. Id. ¶531 (JA__); see also FCC
Principal USF Br. 35 (citing waivers granted to two non-Tribal carriers since
release of Order).
Gila River now argues that the exception for Standing Rock should
have compelled a similar exception for all carriers serving Tribal lands. Br.
33-34. But the FCC predicated its exception for Standing Rock in part on
that carrier’s “nascent status” as “the only … [eligible telecommunications
carrier (“ETC”)] to have its ETC designation modified” since release of the
NPRM that preceded the Order. Order ¶531 (JA__). A two-year exception
was necessary for Standing Rock to “ramp up its operations in order to reach
a sustainable scale.” Id. The same cannot be said for other carriers on Tribal
lands, including Gila River. Cf. Br. 8 (Gila River Telecommunications
founded in 1988). See Morris Commc’ns, Inc. v. FCC, 566 F.3d 184, 188-90
(D.C. Cir. 2009) (agency does not abuse discretion in denying waiver where
prior grant involved different circumstances).
Needless to say, if Gila River (or any other carrier serving Tribal lands)
believes that it merits a waiver from the FCC’s universal service rules
because it cannot otherwise serve its customers – whether due in part to the
31

Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 38
unique characteristics of Tribal lands or otherwise, id. ¶ 542 (JA__) – it is
free to apply for one. But the FCC has fully supported its prediction that
universal service support generally will be sufficient for rate-of-return
carriers, including those on Tribal lands, taking into account the special
measures the agency has adopted. This reasonable predictive judgment
warrants deference. RCA I, 588 F.3d at 1105.


32

Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 39

CONCLUSION

The petition for review should be denied.
Respectfully
submitted,
WILLIAM J. BAER
SEAN A. LEV
ASSISTANT ATTORNEY GENERAL
GENERAL COUNSEL


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


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


/s/ James M. Carr

LAURENCE N. BOURNE
JAMES M. CARR
MAUREEN K. FLOOD
MATTHEW J. DUNNE
COUNSEL

FEDERAL COMMUNICATIONS
COMMISSION
WASHINGTON, D.C. 20554
(202) 418-1740
March 20, 2013
33

Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 40

CERTIFICATE OF COMPLIANCE

Certificate of Compliance With Type-Volume Limitations, Typeface

Requirements, Type Style Requirements, Privacy Redaction

Requirements, and Virus Scan


1.
This brief complies with the type-volume limitation of the Second Briefing
Order. It does not exceed 15% of the size of the brief to which it is responding. The
Uncited Tribal Carriers’ Principal Brief was certified to be 7,901 words in length.
Therefore, the FCC may file a response brief up to 9,086 words in length. This
brief contains 6,662 words, excluding the parts of the brief exempted by Fed. R.
App. P. 32(a)(7)(B)(iii).

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

3.
All required privacy redactions have been made.

4.
This brief was scanned for viruses with Symantec Endpoint Protection,
version 11.0.7200.1147, updated on March 19, 2013, and according to the program
is free of viruses.




/s/ Matthew J. Dunne
Matthew J. Dunne
Counsel


March 20, 2013









Appellate Case: 11-9900 Document: 01019022556 Date Filed: 03/20/2013 Page: 41

CERTIFICATE OF SERVICE



I hereby certify that on March 20, 2013, I caused the foregoing Federal
Respondents’ Uncited Response to the Tribal Carriers’ Principal Brief to be filed
by delivering a copy to the Court via e-mail at
FCC_briefs_only@ca10.uscourts.gov. I further certify that the foregoing document
will be furnished by the Court through (ECF) electronic service to all parties in this
case through a registered CM/ECF user. This document will be available for
viewing and downloading on the CM/ECF system.




/s/ Matthew J. Dunne
Matthew J. Dunne
Counsel


March 20, 2013 

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