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

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Released: October 31, 2012
Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 1

IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
____________
NO. 11-9900
____________
IN RE: FCC 11-161
____________

ON PETITIONS FOR REVIEW OF AN ORDER OF THE
FEDERAL COMMUNICATIONS COMMISSION
____________
UNCITED TRANSCOM PRINCIPAL BRIEF
(DEFERRED APPENDIX APPEAL)
____________
Transcom Enhanced Services, Inc.
By Its Counsel

Walter H. Sargent, II


W. Scott McCollough


Walter H. Sargent, a professional
McCollough Henry, P.C.
corporation
1250 South Capital of
1632 North Cascade Avenue
Texas Highway Bldg. 2-235
Colorado Springs, CO 80907
Austin, TX 78746
Tel: 719-577-4510
Tel: 512-888-1112
wsargent@wsargent.com
wsmc@dotlaw.biz

Steven H. Thomas



McGuire, Craddock & Strother, P.C.
2501 North Harwood, Suite 1800
Dallas, TX 75201
Tel: 214-954-6800
sthomas@mcslaw.com

Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 2

Table of Contents

Table of Contents................................................................... i
Table of Authorities...............................................................iv
Corporate Disclosure Statement.......................................... viii
Transcom’s Supplement to the Joint Preliminary Brief’s
Glossary .......................................................................ix
Transcom’s Supplement to the Joint Preliminary Brief’s
Jurisdictional Statement ............................................... 1
Transcom’s Supplement to the Joint Preliminary Brief’s Statement
of the Case.................................................................... 2
Summary of the Argument ................................................... 5
Argument ............................................................................. 7
I. The
Order violates the Act’s bright-line distinction between
carriers and end-users ................................................12
A.
ESPs are end-users, not carriers .........................12
B.
Calls originate from and terminate to end-user CPE for
ICC purposes ......................................................19
C.
The FCC violated statutory boundaries.................23
i


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II.
The FCC erroneously imposed quasi-carrier status on
Transcom in its ICC, call identifying, and “must carry”
rules............................................................................27
A.
The FCC cannot regulate end-users .....................27
B.
ESPs do not purchase exchange access service and do
not provide telephone toll service .........................30
1.
The FCC erred by holding that ESPs have always
purchased exchange access .........................30
2.
The FCC erred by holding that ESPs provide toll and
purchase exchange access ...........................35
C.
The FCC illegally subjected ESPs’ toll traffic to access
reciprocal compensation ......................................35
D. The FCC inextricably reversed prior decisions authorizing
CMRS providers to provide telephone exchange service to
ESPs ....................................................................36
E.
The FCC engaged in faulty adjudication ...............42
F.
The FCC unlawfully extended call identifying rules and
“must carry” rules to non-carriers ........................45
1.
The FCC’s call identifying obligations impermissibly
regulate non-carriers ..................................46
ii


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2.
The FCC unlawfully imposed “must-carry”
obligations on non-common carriers ...........48
Conclusion ..........................................................................50
Certificate of Compliance .....................................................53
Certificate of Service ............................................................54

iii


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TABLE OF AUTHORITIES

CASES

Administration,of the NANP,
19 FCC Rcd 10708 (2004) .........................................................37
Am. Library Ass'n v. FCC,
406 F.3d 689 (D.C. Cir. 2005) ...................................................47
Ass'n v. Brand X Internet Servs.,
545 U.S. 967 (2005) ........................................................8, 16, 18
Ass'n v. FCC,
567 F.3d 659 (D.C. Cir. 2009) ...................................................45
AT&T Corp. v. Bell Atlantic,
14 FCC Rcd 556 (1998) .............................................................23
AT&T v. Intrend Ropes & Twines,
944 F. Supp. 701 (C.D. Ill., 1996) ..............................................19
AT&T v. Jefferson Telephone Company,
16 FCC Rcd 16130 (2001) .........................................................23
Bell Atlantic Tel. Cos. v. FCC,
206 F.3d 1 (D.C. Cir. 2000) ..................................... 16, 30, 34, 51
AFL-CIO v. Chao,
409 F.3d 377 (D.C. Cir. 2005) ...................................................45
Comcast Corp. v. FCC,
600 F.3d 642 (D.C. Cir. 2010) .............................................47, 50
Competition Order,
11 FCC Rcd...............................................................................38
GTE Service Corp. v. FCC,
474 F.2d 724 (2d Cir. 1973) ......................................................13
Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996,
11 FCC Rcd 15499 ...................................................................24
In the Matter of Access Charge Reform,
12 FCC Rcd 15982 (1997) ...................................................15, 20
In the Matter of Administration of the NANP,
20 FCC Rcd 2957 (2005) ...........................................................37
In the Matter of Amendments of Part 69 of the Commission's Rules
Relating to Enhanced Service Providers,
3 FCC Rcd 2631, n. 53 (1988) ...................................................20
iv


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In the Matter of Atlantic Richfield Company,
3 FCC Rcd 3089, n. 7 (1988) .....................................................19
In the Matter of Cox Cable Communications, Inc., et al, Petition for
Declaratory Ruling,
102 FCC2d 110 (1985) ..............................................................14
In the Matter of Developing a Unified Intercarrier Compensation
Regime, T-Mobile et al. Petition for Declaratory Ruling Regarding
Incumbent LEC Wireless Termination Tariffs
,
20 FCC Rcd 4855 (2005) ...........................................................38
In the Matter of Federal-State Joint Board on Universal Service,
13 FCC Rcd 11501 (1998) .........................................................16
In the Matter of MTS and WATS Market Structure,
77 FCC2d 224 (1980) ................................................................20
In the Matter of MTS and WATS Market Structure,
93 FCC2d 241 (1983) ................................................................12
In the Matter of Northwestern Bell Telephone Company Petition for
Declaratory Ruling,
2 FCC Rcd. 5986 (1987) ............................................................21
In the Matter of Telephone Number Requirements for IP-Enabled
Services Providers,
22 FCC Rcd 19531 (2007) .........................................................38
In the Matter of Use of the Carterfone Device,
13 F.C.C.2d 420 (1968) .............................................................29
Indiana Tel. Co. v. FCC,
824 F.2d 1205 (D.C. Cir. 1985)..................................................29
Ivy Broadcasting Co. v. AT&T,
391 F.2d 486 (2d Cir. 1968) ......................................................29
MTS and WATS Market Structure,
97 FCC 2d 682 (1983) ...............................................................20
NARUC v. FCC,
525 F.2d 630 (D.C. Cir. 1976) .............................................43, 48
NARUC v. FCC,
533 F.2d 601 (D.C. Cir. 1976) ...................................................43
PAETEC Communs. v. CommPartners, LLC, 2010 U.S. Dist. LEXIS
51926 (D.D.C., 2010) ................................................................18
PAETEC Communs., Inc. v. Shapiro, 2012 U.S. App. LEXIS 8718
(D.C. Cir. 2012) .........................................................................18
v


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Pricing Usage of the Public Switched Network by Information Service
and Internet Access Providers,
11 FCC Rcd 21354 (1996) ...................................................21, 22
PUC of Texas v. FCC,
886 F.2d 1325, n.5 (D.C. Cir., 1989)..........................................19
Regulatory and Policy Problems Presented by the Interdependence of
Computer and Communication Services and Facilities,
28 FCC2d 267 (1971) ................................................................13
Second Computer Inquiry,
84 FCC2d 50 (1980) ..................................................................14
Second Computer Inquiry,
Further Reconsideration, 88 F.C.C.2d 512 (1981) ......................14
Southwestern Bell Tel. Co. v. FCC,
19 F.3d 1475 (D.C. Cir. 1994) .............................................17, 18
Southwestern Bell Tel., L.P. v. Missouri Pub. Serv. Comm'n,
461 F. Supp. 2d 1055(E.D. Mo. 2006),.......................................18
U.S v. AT&T,
552 F. Supp. 131 (D.D.C 1982) ...........................................32, 33
U.S v. AT&T,
57 F. Supp. 451 (S.D.N.Y. 1944),...............................................28
U.S. v. AT&T,
578 F. Supp. 643 (D.D.C. 1983) ................................................. 7
Universal Service Contribution Methodology,
21 FCC Rcd 7518 (2006) ...........................................................35
US Magnesium, LLC v. United States EPA,
690 F.3d 1157 (10th Cir. 2012) .................................................. 1
Vonage Holdings Corp. v. FCC,
489 F.3d 1232 (D.C. Cir. 2007)................................................... 8
WorldCom, Inc. v. FCC,
288 F.3d 429 (D.C. Cir. 2002) ..................... 24, 25, 30, 33, 34, 51
Wyoming v. United States DOI,
674 F.3d 1220 (10th Cir. 2012) .................................................. 1

STATUTES

47 U.S.C. § 153(11)......................................................................10
47 U.S.C. § 153(16)....................................................................... 7
47 U.S.C. § 153(20)...................................................... 9, 10, 15, 32
47 U.S.C. § 153(24)....................................................................... 8
vi


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47 U.S.C. § 153(50)......................................................................10
47 U.S.C. § 153(51)......................................................................10
47 U.S.C. § 153(52)....................................................................... 7
47 U.S.C. § 153(53)....................................................................... 9
47 U.S.C. § 153(54)....................................................................... 9
47 U.S.C. § 153(55)....................................................................... 9
47 U.S.C. § 1302..........................................................................47

RULES

10th Cir. R. 32(a) .........................................................................53
Fed. R. App. P. 32(a)(5).................................................................53
Fed. R. App. P. 32(a)(6).................................................................53
Fed. R. App. P. 32(a)(7)(B)(iii)........................................................53

REGULATIONS

47 C.F.R. § 20.11(b), (c), (d)..........................................................29
47 C.F.R. § 22.313(c)(1)................................................................29
47 C.F.R. § 22.377 .......................................................................29
47 C.F.R. § 24.232(c) ...................................................................29
47 C.F.R. § 51.701(d) ...................................................................21
47 C.F.R. § 52.15(g)(2)(i)...............................................................36
47 C.F.R. § 64.702(a) .................................................................... 8
47 C.F.R. § 69.2(b) .......................................................................31
47 C.F.R. § 69.2(m) ................................................................11, 12
47 C.F.R. § 69.5(a) .......................................................................31
47 C.F.R. § 69.5(a) and (b)............................................................17
47 C.F.R. § 69.5(b) ...........................................................15, 26, 32
47 C.F.R. § 90.1319 .....................................................................29
47 C.F.R. § 90.1333 .....................................................................29

OTHER AUTHORITIES

The Interdependence of Computer and Communications Services
and Facilities: A Question of Federal Regulation,
117 U. PA. L. REV. 829 (1969)...................................................13
The Legacy of the Federal Communications Commission's Computer
Inquiries,
55 Fed. Comm. LJ 167 (2003) ...................................................14

vii


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CORPORATE DISCLOSURE STATEMENT


Transcom has no parent corporation, subsidiary, or affiliate
that has issued shares to the public and there is no publicly owned
corporation owning more than 10% of the stock of Transcom.

viii


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TRANSCOM’S SUPPLEMENT TO THE JOINT PRELIMINARY

BRIEF’S GLOSSARY

Act
Federal Communications Act,
47 U.S.C. §§ 151 et seq.
CPE
Customer Premises Equipment
ISDN
Integrated Services Digital
Network
PBX
Private Branch Exchange


ix


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TRANSCOM’S SUPPLEMENT TO THE JOINT PRELIMINARY

BRIEF’S JURISDICTIONAL STATEMENT


Transcom has Article III standing to pursue this matter
because: (1) it suffered an injury-in-fact – an invasion of a legally
protected interest which is (a) concrete and particularized, and (b)
actual or imminent, not conjectural or hypothetical; (2) that injury
is fairly traceable to the challenged action of the FCC rather than
some third party not before the court; and (3) that injury is likely to
be redressed by a favorable decision. US Magnesium, LLC v. United
States EPA, 690 F.3d 1157, 1165 (10th Cir. 2012). Transcom has
prudential standing because it (1) asserts its own legal rights; (2)
presents more than “generalized grievances”; and (3) has an interest
protected or regulated by the statute or constitutional guarantee in
question. Wyoming v. United States DOI, 674 F.3d 1220, 1230-31
(10th Cir. 2012). The Court can redress Transcom’s injuries by
vacating the Order and remanding to the FCC with instructions.

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TRANSCOM’S SUPPLEMENT TO THE JOINT PRELIMINARY

BRIEF’S STATEMENT OF THE CASE


Transcom is a communications-intensive private business.
[J.A. __]. Transcom provides enhanced information services to its
customers. [J.A. __]. To send and receive information, Transcom
uses CPE that connects to the telephone exchange service that
Transcom buys from carriers. [J.A. __]. Transcom has never held
itself out as a carrier, and does not use telecommunications
equipment. [J.A. __]. Rather, Transcom is an ESP and an end-user
of telecommunications services on the PSTN. [J.A. __].
Transcom is an “Internet” company. [J.A. __]. Unlike non-
carrier parties like VON, however, Transcom does not provide
“interconnected VoIP” or “non-interconnected VoIP” to retail
consumers or businesses. [J.A. __]. Rather, Transcom provides
wholesale enhanced/information services to other industry
participants, including many of the VON members, as well as to
cable telephony providers. Transcom’s customers then interface
with retail customers. [J.A. __].
Transcom’s involvement in the proceeding below began
relatively late. [J.A. __]. Beginning in March of 2011, certain ILECs
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began filing comments and ex parte submissions complaining about
ICC-related disputes with Halo Wireless, Inc. (“Halo”), one of
Transcom’s exchange carrier vendors. [J.A. __]. Those submissions
also attacked Transcom’s regulatory status and the classification of
Transcom’s traffic, and alleged that Halo and Transcom were
engaging in improper call signaling practices. [J.A. __]. The ILECs
contended that Transcom should be subject to FCC regulations
governing carriers. [J.A. __].
On April 19, 2011, Halo replied to the ILECs’ contentions and
assertions. Transcom and Halo then conducted and submitted
multiple ex parte meetings and filings, urging the FCC to reject the
ILECs’ views. [J.A. __].
In November 2011, the FCC responded to the dispute in the
Order. The Order explicitly referred to Halo and its submissions,1
but referred to Transcom only as a “high volume” “ESP” customer of

1 Order ¶¶ 848, 979, 1003-1006 (and associated notes).
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Halo.2 The Order repeated the ILECs’ allegations regarding Halo’s
handling of Transcom’s traffic.3
The
Order did not dispute that Transcom is an ESP and
end-user rather than a carrier. The Order, however, ruled that ESPs
like Transcom purchase “exchange access,” provide “toll services,”
and are “intermediate” points instead of end-points for certain
purposes. The Order also overturned prior decisions approving
CMRS-based telephone exchange service to ESPs. The Order held
that ESPs like Transcom are, like carriers, subject to ICC, “call
identifying,” and “must carry” rules.4

2 Id. ¶¶ 1005-1006.
3 Id. ¶¶ 709, 712-714, 720 (and associated notes); see also Order
n.1203 (reference to Windstream’s XV comments, p. 16); slide 11 of
the TDS September 23, 2011 ex parte.
4 See Order ¶¶709, 712-14, 720, 848, 979, 1003-1006 and
associated notes; see also Order n.1203.
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SUMMARY OF THE ARGUMENT


Under the Act, as well as long-standing FCC rules, entities are
either carriers or end-users. Carriers have specific rights and
duties, and are subject to FCC regulation under Title II. End-users
purchase regulated service from carriers, but are not themselves
subject to Title II regulation.

ESPs like Transcom are not carriers. Rather, ESPs are end-
users. Carriers provide telecommunications services using
telecommunications equipment. ESPs are customers of carriers,
using customer premises equipment to provide
enhanced/information services to their own customers. ESPs are
telecommunications users, not telecommunications carriers.

By ruling that Transcom is subject to carrier obligations
regarding ICC, “call identification,” and “must carry” rules, the FCC
disregarded the distinction between carriers and end-users and
exceeded its regulatory authority. The FCC’s rulings were contrary
to the Act and the FCC’s own regulations, and were arbitrary and
capricious. Moreover, the FCC’s adjudicatory rulings specifically
directed at Transcom and Halo based on the ILECs’ complaints do
not contain any findings on the first-order question of whether
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Transcom is a common carrier even though the FCC could reach its
result only if Transcom is a common carrier. The holdings were
contrary to prior federal court rulings regarding Transcom’s status.
The result is inconsistent with prior FCC precedent, and the FCC
failed to adequately explain why it was suddenly changing course.
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ARGUMENT



An entity or person is either a carrier or an end-user for ICC
purposes. End-users purchase telecommunications service from
carriers that are in turn responsible for ICC. For ICC purposes,
calls to the end-user terminate on the end-user’s exchange carrier’s5
network, and calls from the end-user originate on the end-user’s
exchange carrier’s network from end-user CPE6 that connects to the
exchange service.

5 As used herein, an exchange carrier is a common carrier that
provides telephone exchange service and/or exchange access, and it
includes both LECs and CMRS. CMRS providers (called “radio
common carriers” before 1993) provide exchange services even
though they are not LECs, as defined in section 153(32). Common
carrier mobile radio services were also exchange
telecommunications services within the meaning of section II(D)(3)
of the AT&T divestiture decree. U.S. v. AT&T, 578 F. Supp. 643, 645
(D.D.C. 1983).
6 CPE is employed by end-users. In contrast, carriers use
telecommunications equipment. Compare 47 U.S.C. § 153(16) with
47 U.S.C. § 153(52).
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The FCC erred by treating end-user ESPs that do not provide
interconnected VoIP7 like carriers or quasi-carriers in its ICC and
“call-identifying” rules.

The FCC’s new rules unlawfully obliterate mandatory
distinctions relating to carriers’ and non-carrier end-users’ roles
and destroy the statutorily-mandated classification scheme between
“enhanced8/information9” service10 and the three statutorily defined

7 Transcom does not provide retail service to consumers, and
instead offers its enhanced/information services to other parties,
that in turn serve consumers. Transcom does not supply any
transmission to ultimate consumers, and merely uses the PSTN to
supply a finished product. Therefore, from both a demand side and
supply side perspective, Transcom does not “offer” or “provide”
“telecommunications.” C.f., Vonage Holdings Corp. v. FCC, 489 F.3d
1232, 1239-41 (D.C. Cir. 2007).
8 The FCC’s rules define “enhanced service” in 47 C.F.R. §
64.702(a).
9 47 U.S.C. § 153(24).
10 Despite the different wording, the statutory definition for
“information service” and the older FCC definition for “enhanced
service” obtain the same practical result. See Nat'l Cable &
Telecomms. Ass'n v. Brand X Internet Servs.
, 545 U.S. 967, 992-94
(2005). Transcom will refer to all enhanced/information service
providers as ESPs.
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“telecommunications services”11 (“telephone exchange service,”12
“exchange access,”13 and “telephone toll service”14).
Exchange service is not telephone toll service. An exchange
carrier cannot be subjected to exchange access charges for handling
end-users’ outgoing exchange service calls. An exchange carrier
providing telephone exchange service to an end-user is not
providing “transiting.”15 When an exchange carrier allows an IXC to
access an end-user to allow origination of telephone toll calls, the
exchange carrier is not providing exchange access to the end-user.
Transit and exchange access are carrier-to-carrier products, not
carrier-to-user products.

11 47 U.S.C. § 153(53).
12 47 U.S.C. § 153(54)
13 47 U.S.C. § 153(20)
14 47 U.S.C. § 153(55).
15 The FCC defined “transit” in paragraph 1311 of the Order to
mean service by one carrier to another carrier (i.e., carrier B takes
traffic from carrier A and “transits” that traffic to carrier C because
carriers A and C are not directly interconnected) yet improperly
applied that term to Halo’s service to Transcom.
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ESPs do not offer “telecommunications”16 on a “common
carrier”17 basis. Therefore, ESPs are not “telecommunications
carriers,”18 and cannot be said to offer or provide
“telecommunications service.” In particular, ESPs cannot provide
“telephone toll service” given that it is by definition a
telecommunications service. ESPs buy telecommunications and
then provide non-regulated and non-common carrier
enhanced/information service.

ESPs are end-users, and like all other end-users, do not
purchase exchange access as a matter of law. “Exchange access,”
by definition, is for carriers rather than end-users and applies only
“for the purpose of the origination or termination of telephone toll
service.”19 Neither the ESP nor its exchange carrier vendor can be
assessed exchange access, or access-like ICC charges, by another
carrier for exchange service traffic because that is “LEC-LEC” traffic

16 47 U.S.C. § 153(50).
17 47 U.S.C. § 153(11).
18 47 U.S.C. § 153(51).
19 47 U.S.C. § 153(20).
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subject to section 251(b)(5) and the additional cost criterion in
section 252(d)(2).
The Order directly and adversely affects Transcom in several
ways. First, the FCC engaged in a faulty adjudication of Transcom’s
status and the nature of the services it was receiving from Halo.
Second, the Order expressly (in some places) and implicitly (in
other places) deprives Transcom of its statutory right to be (a) an
end-user20 customer and purchase telephone exchange service, and
(b) an end-point where communications originate or terminate for
ICC purposes.
Third, the Order effectively removes CMRS providers from the
pool of competitively available exchange service suppliers to
Transcom.
Fourth, the Order increases supply costs for Transcom by
imposing non-section 252(d)(2) compliant ICC obligations on
Transcom’s vendors, and they will pass this additional and unlawful
cost on to Transcom.

20 47 C.F.R. § 69.2(m).
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Fifth, the Order unlawfully imposes carrier or quasi-carrier
regulation on Transcom through the “phantom traffic” and “must-
carry” requirements.

The Court should hold unlawful and vacate the Order.

I. The

Order

violates the Act’s bright-line distinction
between carriers and end-users.

The Order abandoned the “carrier or end-user” dichotomy that
is rooted in history and codified in the Act. This binary construct
controls the operation of permissible ICC rules. The FCC
inexplicably reversed course, exceeded its general and ancillary
jurisdiction, and fundamentally misconstrued the Act.

A.
ESPs are end-users, not carriers.

The FCC established the binary concept of carrier or end-user
in its very first access charge rules promulgated in 1983.21 This
bright-line distinction remains in the rules.22 Any entity not acting
in a carrier capacity always was and still is an end-user. Congress
adopted this approach: sections 153(11) and 153(51) expressly

21 In the Matter of MTS and WATS Market Structure, 93 FCC2d 241
(1983).
22 Compare In the Matter of MTS and WATS Market Structure, 93
FCC2d at 399 (Appendix A, containing text of 1983 rule 69.2(m))
with current 47 C.F.R. § 69.2(m)).
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prohibit the FCC from imposing carrier obligations on an entity
when it is not providing telecommunications service, and is
therefore occupying a “business” end-user role.

This distinction is fundamental. Carriers have specific rights,
duties, and responsibilities, and they are subject to regulation.
End-users merely purchase regulated service from carriers, and are
not regulated by the FCC or the states.
The 1971 Computer Inquiry decision23 distinguished between
“pure communications” provided by carriers and non-carrier “data
processing.” Even then, the FCC was aware that data processing
sometimes yields applications that look very similar to common
carrier services.24 Data-based message switching directly competed
with Western Union’s then still-regulated services. The FCC knew:
These two things look very similar to each other.
However, one was regulated; the other was not. One was
expensive; the other one was cheap, and avoided

23 Regulatory and Policy Problems Presented by the Interdependence
of Computer and Communication Services and Facilities
, 28 FCC2d
267 (1971), aff’d, GTE Service Corp. v. FCC, 474 F.2d 724, 726 (2d
Cir. 1973), dec’n on remand, 40 F.C.C.2d 293 (1973).
24 Delbert D. Smith, The Interdependence of Computer and
Communications Services and Facilities: A Question of Federal
Regulation
, 117 U. PA. L. REV. 829, note 4, 831, 836 (1969).
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regulatory fees. One is a substitute service for the
other.25
The
Computer Inquiry categories later changed to “basic”
(telecommunications) service and “enhanced” service,26 but the
thrust was the same. Enhanced services are not regulated under
Title II; ESPs are not “common carriers” and are instead merely
business end-users. The fact that the ESP’s service is similar to or
substitutable for a telecommunications service does not matter to
the analysis.27

25 Robert Cannon, The Legacy of the Federal Communications
Commission’s Computer Inquiries
, 55 Fed. Comm. LJ 167, 171
(2003).
26 In re Amendment of Section 64.702 of the Commission’s Rules and
Regulations
(“Second Computer Inquiry”), 77 F.C.C.2d 384 (1980);
Second Computer Inquiry, 84 FCC2d 50 (1980); Second Computer
Inquiry
, Further Reconsideration, 88 F.C.C.2d 512 (1981), aff’d,
Computer & Commc’ns Indus. Assoc.
, 693 F.2d at 203, cert. den.,
Louisiana Pub. Serv. Comm’n. v. FCC
, 461 U.S. 938 (1983).
27 In the Matter of Cox Cable Communications, Inc., et al, Petition for
Declaratory Ruling
, 102 FCC2d 110, 118-22 (1985).
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ESPs purchase telephone exchange service,28 and can use it to
originate calls to the PSTN or receive calls from the PSTN. This is so
even if the enhanced service is “interexchange.” The FCC reaffirmed
that ESPs are end-users when it articulated the “ESP Exemption” in
the 1980s, and held that ESPs could continue to “pay business line
rates and the appropriate subscriber line charge, rather than
interstate access rates, even for calls that appear to traverse state
boundaries.”29

ESPs are not telecommunications carriers. Under FCC rules,
only carriers are subject to access charges.30 Under the Act, only
telephone toll service is subject to exchange access.31 Telephone toll

28 An ESP can purchase telephone toll service from an IXC. The fact
that the IXC’s customer is an ESP (rather than another type of end-
user) does not exempt the IXC from exchange access. But the Order
attempts to turn ESPs into IXCs by characterizing the ESP’s
product (not some toll service the ESP is buying) as toll. Order ¶¶
945, 957. It also subjects the ESP’s exchange carrier vendor to
access charges on the ESP’s originating traffic as if the exchange
carrier is providing telephone toll when the exchange carrier vendor
is actually providing telephone exchange service.
29 In the Matter of Access Charge Reform; 12 FCC Rcd 15982,
16131-32 n. 498 and 499 (1997).
30 47 C.F.R. § 69.5(b).
31 47 U.S.C. § 153(20).
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service is, by definition, a telecommunications service, so ESPs do
not offer telephone toll service.
ESPs
purchase telecommunications as end-users and use that
input to provide non-regulated and non-common carrier
enhanced/information service.32 ESPs are end-users and purchase
end-user exchange services – just as would any other
“communications-intensive business end user.”33


The 1996 amendments codified the FCC’s rule-based
carrier/end-user, telecommunications service/enhanced service
construct.34 Congress codified this model through the statutory
definitions of, inter alia, “common carrier,” “customer premises
equipment,” “exchange access,” “information service,”

32 “Under Computer II, and under our understanding of the 1996
Act, we do not treat an information service provider as providing a
telecommunications service to its subscribers. The service it
provides to its subscribers is not subject to Title II, and is
categorized as an information service. The information service
provider, indeed, is itself a user of telecommunications
; that is,
telecommunications is an input in the provision of an information
service.” In the Matter of Federal-State Joint Board on Universal
Service
, 13 FCC Rcd 11501, 11535, n. 138 (1998) (emphasis
added).
33 Bell Atlantic Tel. Cos. v. FCC, 206 F.3d 1, 7 (D.C. Cir. 2000).
34 Brand X, 545 U.S. at 975-77.
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“telecommunications carrier,” “telecommunications equipment,”
“telecommunications service,” and “telephone toll service” in section
153.

This approach is implemented through Title II as well as many
of the FCC’s still-existing rules.35 It comprises the basic structure
and operation of the statute. Title II applies to common carriers.
Section 153(11) provides that a common carrier is “any person
engaged as a common carrier for hire” and section 153(51) defines a
“telecommunications carrier” as “any provider of
telecommunications services” and goes on to say that “[a]
telecommunications carrier shall be treated as a common carrier
under this chapter only to the extent that it is engaged in providing
telecommunications services.”

Section 153(53) reinforces the import of common carrier
status by defining a telecommunications service as “the offering of
telecommunications for a fee directly to the public, or to such
classes of users as to be effectively available directly to the public,
regardless of the facilities used” – merely a different way of

35 See, e.g., 47 C.F.R. § 69.5(a) and (b).
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describing the essential attributes of common carriage.36 “Carriers”
employ “telecommunications equipment” to provide
“telecommunications service” (section 153(52)), whereas persons
“other than a carrier” use “customer premises equipment” to
“originate, route, or terminate telecommunications” (section
153(16)).

Congress also codified the “ESP Exemption.”37
Under law prior to the 1996 Telecommunications Act,
this exception was called the enhanced services exception
or ESP exception. … The Act essentially codified the pre-
existing exception. …”38


Carriers “interconnect” with other carriers under rules, terms,
and conditions prescribed by the FCC and state commissions
pursuant to sections 201, 251, 252 and 332(c)(1)(B). As explained
below, end-users – even those that operate extensive “private

36 Southwestern Bell Tel. Co. v. FCC, 19 F.3d 1475, 1480 (D.C. Cir.
1994).
37 PAETEC Communs. v. CommPartners, LLC, 2010 U.S. Dist. LEXIS
51926, **5-6, n. 2 (D.D.C., 2010)(citations omitted), appeal dism’d,
PAETEC Communs., Inc. v. Shapiro, 2012 U.S. App. LEXIS 8718
(D.C. Cir. 2012).
38 Id.; see also Brand X, 545 U.S. at 975-977; Southwestern Bell
Tel., L.P. v. Missouri Pub. Serv. Comm’n
, 461 F. Supp. 2d 1055,
1081-83 (E.D. Mo. 2006), aff’d, 530 F.3d 676 (8th Cir. 2008), cert.
denied
, 555 U.S. 1099 (2009).
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networks” – have a federal right to attach to the PSTN using CPE by
purchasing “exchange service.”39

End-users buy service from carriers. Carriers interconnect so
users on disparate networks can communicate. The carriers
involved settle amongst each other for ICC. They then collect from
their respective end-users under a tariff or contract.
B. Calls originate from and terminate to end-user CPE for
ICC purposes.

End-users (including ESPs) employ CPE. Under the prevailing
law, CPE is an end point from which calls originate or terminate for
compensation purposes. This is so even if the call started
somewhere else before it got to the end-user’s CPE, which then sent
the call back out. For tariff and ICC purposes (as opposed to
jurisdictional purposes), calls originate from the end-user’s CPE,
and the end-user is the financially responsible party to its carrier
vendor for calls from CPE.40

39 In the Matter of Atlantic Richfield Company, 3 FCC Rcd 3089,
3089, n. 1, 3090, n. 7 (1988), review den., PUC of Texas v. FCC, 886
F.2d 1325, 1331, n.5 (D.C. Cir., 1989) (“ARCO”).
40 See, e.g., AT&T v. Intrend Ropes & Twines, 944 F. Supp. 701,
708-711 (C.D. Ill., 1996) (applying filed tariff doctrine and collecting
judicial and regulatory decisions defining “originate” for
compensation purposes).
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The initial FCC decisions articulating the “ESP Exemption”
found that ESP use of the PSTN is like large business end-user
PBXs41 that “leak” interexchange private network traffic into the
exchange.42 ESPs use exchange service “to originate and terminate
interstate calls.”43 ESPs are “end-users and thus may use local
business lines for access for which they pay local business rates
and subscriber line charges.”44 If they purchase special access lines
that connect to “leaky” CPE “they also pay the special access
surcharge under the same conditions as those applicable to end-
users.”45

41 A PBX is an end-user on-site switching system that connects to
telephone exchange service, and distributes traffic to “stations,”
which can be telephones or any other terminal device, including
FAX machines or computer terminals. Old-style PBXs used analog
“PBX trunks.” Newer PBXs connect to ISDN PRI trunks supplied by
an exchange carrier.
42 MTS and WATS Market Structure, 97 FCC 2d 682, 711 (1983); In
the Matter of MTS and WATS Market Structure
, 77 FCC2d 224, ¶ 63
(1980).
43 In the Matter of Access Charge Reform, 12 FCC Rcd 15982,
16131-32 (1997).
44 In the Matter of Amendments of Part 69 of the Commission’s Rules
Relating to Enhanced Service Providers
, 3 FCC Rcd 2631, 2633, n.
53 (1988).
45 Id.
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Calls into an ESP platform have always been a “termination”
for compensation purposes.46 Calls exiting an ESP platform have
always been an “origination” for compensation purposes.47 The
“rating” of the call as between local or toll for compensation
purposes was always determined by looking at the ESP’s CPE as the
relevant end-point.48 This was always the case even though from an
“end-to-end” perspective the ESP is “in the middle” of a
communication, as the gateway between participants. Therefore, for
ICC purposes, when a communication starts somewhere else, goes
to the ESP platform and the ESP hands the call off to its exchange
service vendor after performing its enhanced/information functions,
the call entering the ESP’s system is a “termination” and the call
going back out is an “origination.”49 Telephone exchange service is

46 Bell Atlantic, 206 F.3d at 6.
47 Id.; see also In the Matter of Access Charge Reform; Pricing Usage
of the Public Switched Network by Information Service and Internet
Access Providers
, 11 FCC Rcd 21354, 21478 (1996).
48 47 C.F.R. § 51.701(d). The FCC’s rules refer to a customer
“premise” but that is merely where the CPE is located.
49 See, e.g., In the Matter of Northwestern Bell Telephone Company
Petition for Declaratory Ruling
, 2 FCC Rcd. 5986, 5988 (1987),
vacated as moot, 7 FCC Rcd. 5644 (1992).
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not “transiting.” Telephone exchange service is not “telephone toll.”
Telephone exchange service is not “exchange access.”

The FCC tried to change this result in 1999, but the D.C.
Circuit reversed, holding that ISP-bound50 calls are a “termination”
for ICC purposes even though the ISPs “upon receiving a call
originate further communications…” and for jurisdictional purposes
the ISP is in the middle of the call.51 The D.C. Circuit’s holding is
part of the law of this case, and FCC cannot lawfully overrule the
D.C. Circuit.

ESPs, like all other end-users, purchase telephone exchange
service rather than exchange access, and they use the service to
originate calls from their CPE or receive calls with their CPE.52

50 An internet service provider (“ISP”) is merely one kind of ESP.
51 Bell Atlantic, 206 F.3d at 6-7. The D.C. Circuit pointedly
distinguished between non-carrier ESPs and IXCs, and went on to
note that jurisdictional analysis looks at the communication from
end to end (with the ESP in the middle) whereas for the
compensation purposes the ESP is an end-point. The D.C. Circuit
certainly did not accept that an exchange carrier providing service
to an ESP is providing “transiting.”
52 See Pricing Usage of the Public Switched Network by Information
Service and Internet Access Providers
, 11 FCC Rcd at 21478.
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ESPs’ CPE, like all other end-user CPE, is an end-point where calls
originate or terminate for ICC purposes.

Carrier telecommunications equipment is an “intermediate”
point. End-user CPE, however, has never been treated as an
intermediate point for ICC purposes. Conference calling precedent
illustrates the difference. Carrier telecommunications equipment
used to conference multiple callers is an intermediate point. End-
user CPE used to create a conference call, however, is an end-point,
where calls originate or terminate for ICC purposes.53 This principle
was applied to end-user ESPs in AT&T v. Jefferson Telephone
Company, 16 FCC Rcd 16130, 16131 (2001). The FCC’s new notion
that service to an ESP is “transiting” rather than origination or
termination (Order ¶ 1006) has no basis in the Act or the precedent.
C.
The FCC violated statutory boundaries.

The Act identifies only three telecommunications services.
LECs provide telephone exchange service and exchange access.54
IXCs provide telephone toll service. CMRS providers primarily

53 “Because two calls originate or terminate over the subscriber's
common line, both properly incur a CCL charge.” AT&T Corp. v. Bell
Atlantic
, 14 FCC Rcd 556, 586-87 (1998).
54 Bell Atlantic, 206 F.3d at 8.
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provide exchange service,55 but the CMRS provider can also occupy
an IXC role when the CMRS provider56 transports a user’s
communication between two MTAs. Specific statutory provisions
directly address compensation for each of these three services.

Section 153(54)(A) contemplates that telephone exchange
service related calls are covered by “the exchange service charge”
from the exchange carrier to the end-user. If the called party is on a
different exchange carrier’s network, the exchange carrier is
responsible for termination charges, and the applicable ICC regime
is section 251(b)(5) reciprocal compensation.57 Termination charges
for telephone exchange service calls must be cost-based: section
252(d)(2)(a) requires that the charge recover only the “additional
cost” incurred by the terminating carrier.

55 Implementation of the Local Competition Provisions in the
Telecommunications Act of 1996
, 11 FCC Rcd 15499, 15595, 16999
(“Local Competition Order”)(subsequent history omitted).
56 As opposed to the CMRS customer transporting over a private
network.
57 WorldCom, Inc. v. FCC, 288 F.3d 429, 430-31 (D.C. Cir. 2002).
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The Act also controls “compensation”58 for “exchange access”
and “telephone toll service” provided by IXCs. Here, the exchange
carrier gives the IXC access to end-users on each end so the IXC
can provide telephone toll service and the exchange carrier recovers
“access charges” from the IXC.

The definition of “telephone toll service” in section 153(55)
contemplates that the IXC will recover “a separate charge not
included in contracts with subscribers for exchange service” as its
payment from the subscriber. The IXC “collects from the user and
pays both LECs – the one originating and the one terminating the
call.”59

The statutory definitions for “telephone exchange service,”
“exchange access,” and “telephone toll service” reflect Congress’
decision that end-users will pay their selected carrier and
intercarrier charges will flow among and between common carriers
that are providing a telecommunications service.


58 Unlike reciprocal compensation, exchange access has no
statutory costing criterion; it is merely bounded by the “just and
reasonable” standard.
59 WorldCom, 288 F.3d at 431.
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ICC is about intercarrier obligations, not end-user obligations.
End-users are not regulated, nor are they directly assessed
intercarrier charges; they pay an “exchange service charge” to an
exchange carrier,60 or they pay “a separate charge not included in
contracts with subscribers for exchange service” to the IXC that
directly provides telephone toll service to them. The carrier serving
the end-user is then responsible to the other carriers in the call
delivery chain for all ICC obligations.

The FCC’s new regime abrogates the statutory distinctions
between non-carrier end-users – including ESPs of all kinds – and
carriers providing telecommunications service. It brushes aside
mandated differences in treatment between the two exchange
carrier services (exchange access and telephone exchange service)
and the one IXC service (telephone toll service). The FCC obliterated
statutory distinctions between enhanced/information services and
telecommunications services, and end-users and carriers.

60 Similarly, under FCC rules they pay end-user charges to the
exchange carrier that directly provides service to them. See 47
C.F.R. § 69.5(b).
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The FCC summarily, and without any discussion, opined that
calls do not “originate” from ESPs’ CPE, but it illogically held to the
concept that calls “terminate to” ESPs for compensation purposes.
This was legal error, arbitrary and capricious.

II. FCC

erroneously
imposed
quasi-carrier status on

Transcom in its ICC, call identifying, and “must carry”
rules.

A.
The FCC cannot regulate end-users.
The FCC cannot “regulate” an end-user merely because the
end-user is purchasing a telecommunications service, even if the
user needs telecommunications to provide a jurisdictionally
interstate non-common carrier communications-related service.
End-user rights, duties, and responsibilities flow from the contract
with or tariff of the common carrier from whom the end-user
purchases telecommunications service. The FCC can require a
carrier to include terms in a tariff or contract that control or restrict
how the customer uses the service, but it cannot directly regulate
end-users absent specific statutory authority.
The Southern District of New York considered a case involving
hotels that subscribed to AT&T’s long distance service and allowed
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guests to make interstate toll calls.61 The hotels passed through
AT&T’s charge and added a separate fee.62 The principal question
was whether the hotels could add the fee.63 First, the government
sought to enforce AT&T’s interstate tariff, which forbade users from
adding a surcharge.64 Second, the government asserted that the
hotels were violating the Act itself.65 The court held that since the
hotels were not common carriers they could not violate the Act, but
as users they were bound by the tariff.66

Broadcasters, video providers, and private radio carriers all
provide “communications by wire or radio” to their customers. They
are not common carriers. Thus, when any of these entities need to
purchase telecommunications service from a carrier, they are
merely end-users, and there is a “carrier-user” relationship, not a
“carrier-carrier” relationship. Neither the courts nor the FCC have

61 U.S v. AT&T., 57 F. Supp. 451 (S.D.N.Y. 1944), aff'd. sub nom.
Hotel Astor, Inc. v. United States
, 325 U.S. 837 (1945).
62 U.S. v. AT&T, 57 F. Supp. at 453-54.
63 Id.
64 Id.
65 Id.
66 Id. at 455-56.
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traditionally attached any significance to the fact that the user
happens to provide communications by wire and radio and uses it
to support its non common-carrier product.67 Carterphone, a
seminal case involving end-users’ right to attach CPE to the PSTN,
involved a private mobile radio system’s right to connect to the
PSTN via end-user tariff arrangements.68
In contrast, CMRS providers are responsible for compliance
with the FCC’s rules, including operation of user stations (radio
CPE)69 and ICC.70 End-users are subject only to the terms of their
contract with the CMRS provider. Similarly, LECs are common
carriers and have interconnection rights and duties. One of those
duties is intercarrier compensation. LEC end-user customers pay
end-user charges to their carrier vendor, and have no ICC or other
duties to any other carriers.

67 See Ivy Broadcasting Co. v. AT&T, 391 F.2d 486, 488-89, 494-95
(2d Cir. 1968); Nw. Indiana Tel. Co. v. FCC, 824 F.2d 1205 (D.C.
Cir. 1985).
68 In the Matter of Use of the Carterfone Device, 13 F.C.C.2d 420,
424, n. 3 (1968).
69 47 C.F.R. §§ 22.313(c)(1), 22.377, 24.232(c), 90.1319, 90.1333.
70 47 C.F.R. § 20.11(b), (c), (d).
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The statute has always contained, and the rules have always
reflected, a carrier-user distinction. The new rules create an
exception for certain non-carrier ESPs, but this “exception” is
premised on the same legal error identified by the D.C. Circuit in
Bell Atlantic and WorldCom, see infra pages 33-34.
The Order imposes the carrier responsibilities and burdens
described below on non-carriers, but gives none of the benefits of
common carriage. This was legal error and arbitrary and capricious.
B.
ESPs do not purchase exchange access service and do
not provide telephone toll service.
1.
The FCC erred by holding that ESPs have always
purchased exchange access.

Paragraphs 956 through 958 of the Order conclude that ESPs
have always purchased exchange access. The FCC reaches this
result by erroneously equating its rule-based definition of “access
service” with the statutory term “exchange access.” It then
compounds the error by equating “information access” with
“exchange access” even though both terms are separately used in
section 251(g).

Section 153(20) defines exchange access as “the offering of
access to telephone exchange services or facilities for the purpose of
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the origination or termination of telephone toll services.” The
exchange carrier is giving an IXC “access to” end-users’ “telephone
exchange services or facilities.” End-users buy telephone exchange
service; IXCs buy exchange access so they can provide telephone
toll service to end users over their exchange service arrangement.

FCC rules define “access service” as “services and facilities
provided for the origination or termination of any interstate or
foreign telecommunication.”71 End-users pay FCC-mandated end-
user access service charges to their LEC vendor.72 End-users are
not receiving section 153(20) exchange access under the plain
reading of that definition. End-user access service under the FCC
definition is merely the interstate component of section 153(54)
telephone exchange service.

“Carrier’s carrier” charges under section 69.5(b) do correspond
to exchange access under the statute. The rule makes clear that the
“service” is to interexchange carriers that “use local exchange
switching facilities.”

71 47 C.F.R. § 69.2(b).
72 47 C.F.R. § 69.5(a).
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Telephone toll service, telephone exchange service, and
exchange access are different services.73 The Order incorrectly treats
access service under its rule and statutory exchange access as
synonymous, but they are not.74

The FCC also implicitly concludes that “information access,”
as used in section 251(g), is the same thing as “exchange access”
even though Congress specifically listed both terms in that section,
and therefore intended that they not be given the same meaning.
They are not the same. Congress decided that ESPs should obtain
information access by purchasing telephone exchange service under
the now-codified “ESP Exemption.”

The reference to “information access” in section 251(g) was
part of the transition Congress was making from the Modification of
Final Judgment, U.S v. AT& T, 552 F. Supp. 131, 334-335 (D.D.C
1982) (“MFJ”), to a statutory approach. As explained by the Joint
Explanatory Statement of the Committee of Conference, S. Conf.

73 See Local Competition Order, 15598-99 (Note the Section D
heading before ¶186: “Interexchange Service is Not Telephone
Exchange Service or Exchange Access.”).
74 This is evident by a simple comparison of 47 USC § 153(20) with
47 CFR § 69.5(b).
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Rep. No. 230, 104th Cong., 2d Session at 123 (1996), the term
came directly from, and is applying, the MFJ definition of
“information access.” The MFJ did not consider information access
to be a category separate and distinct from telephone exchange
services; “information access” was “the provision of specialized
exchange telecommunications services by a BOC in an exchange
area…”75 Information access under the MFJ was a subcategory of
telephone exchange service. It was not exchange access. Congress
imported this directly into the Act.
In
WorldCom, the D.C. Circuit rejected the FCC’s efforts to
conflate “information access” with “exchange access,” and carve
ESP traffic out of section 251(b)(5) through section 251(g).76
Paragraph 958 of the Order tries to distinguish WorldCom by
asserting that “by contrast, there is no evidence that the exchange
of toll VoIP-PSTN traffic inherently involves the exchange of traffic
between two LECs.” This cryptic comment cannot justify an attempt
to “carve out” ESP traffic that is between two LECs. The Order
nonetheless imposes access reciprocal compensation that does not

75 AT&T MFJ, 552 F. Supp. at 334-335 (emphasis added).
76 288 F.3d at 430-31.
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meet the section 252(d)(2) “additional cost” mandate on VoIP traffic
that is between two LECs.77 Bell Atlantic or WorldCom do not allow
this result.

Bell Atlantic remanded for an explanation of how “exchange
access” could apply to ESPs.78 The FCC never complied with that
instruction. The Order once again treats “information access” as a
form of “exchange access,” but the FCC has never explained how
the dissonant words in the two definitions can be read to mean the
same thing. The Order still does not justify “how regarding
noncarriers as purchasers of ‘exchange access’ fits with the
statutory definition of that term.”79 The Order does not successfully
rationalize “why [ESP] traffic is ‘exchange access’ rather than
‘telephone exchange service.”80


77 The new rules require an ESP’s exchange carrier vendor to pay
prices inconsistent with section 252(d)(2), and the LECs will
certainly pass that on to Transcom. Since the FCC has now
prevented CMRS-based service, Transcom is now functionally
limited to using LECs. Thus, the FCC’s excuse makes no sense.
78 206 F.3d at 8-9.
79 Id. at 9.
80 Id.
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2.
The FCC erred by holding that ESPs provide toll and
purchase exchange access.

Telephone toll service is by definition a telecommunications
service.81 Non-carrier ESPs do not provide “telephone toll service.”
The FCC tried to get around this problem in paragraphs 945 and
957 of the Order by stating that VoIP providers provide “toll” and
then equating “VoIP toll” with “telephone toll service.” If a non-
carrier can be said to provide “toll,” then that term is necessarily
broader (and different) than “telephone toll service,” as defined by
the Act. The Act says that only telephone toll service is subject to
exchange access. The FCC’s efforts to interpret the Act by omitting
inconvenient words must fail.
C.
The FCC illegally subjected ESPs’ toll traffic to access
reciprocal compensation.

The rules impose higher costs on Transcom in two ways. First,
the holding that ESPs purchase exchange access means that
Transcom can no longer directly contract with an exchange carrier
for telephone exchange service. Second, Transcom’s exchange
service vendors now must pay access reciprocal compensation for

81 Universal Service Contribution Methodology, 21 FCC Rcd 7518,
7543 (2006).
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Transcom’s traffic that is deemed to be “toll VoIP-PSTN,” whereas
before they did not since the traffic was subject to the section
252(d)(2) additional cost constraint. Transcom’s vendors will of
course pass this additional cost on to Transcom.

Neither of these results pass statutory muster. Transcom has
the statutory right to purchase telephone exchange service from
exchange carriers and cannot be compelled to purchase exchange
access. Further, sections 251(b)(5) and 251(g) do not authorize a
terminating LEC to assess a non section 252(d)(2)-compliant price
on traffic delivered from another exchange carrier that is delivering
telephone exchange service traffic for termination.
D. The FCC inexplicably reversed prior decisions authorizing
CMRS providers to provide telephone exchange service to
ESPs.
Only carriers (applicants “authorized to provide service”) can
obtain telephone numbers (“numbering resources”).82 Non-carrier
end-users, including interconnected VoIP providers and other ESPs,
indirectly obtain numbering resources by establishing a carrier-user

82 See 47 CFR § 52.15(g)(2)(i).
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relationship with an exchange carrier.83 Interconnected VoIP
providers, for example, “have to partner with a local exchange
carrier (LEC) to obtain North American Numbering Plan (NANP)
telephone numbers” by “purchas[ing] a retail product (such as a
Primary Rate Interface Integrated Services Digital Network (PRI
ISDN)84 line) from a LEC, and then us[ing] this product to
interconnect with the PSTN in order to send and receive certain
types of traffic between its network and the carrier networks.”85

83 In the Matter of Administration of the NANP, 19 FCC Rcd 10708,
10709 (2004)(“VoIP providers offering interconnection with the
[Public Switched Telephone Network] typically obtain [telephone]
numbers through services offered by local exchange carriers and do
not obtain telephone numbers from the numbering administrators
(i.e., the NANPA or PA), because in most cases they are not certified
as a carrier by a state.”).
84 ISDN is a telephone exchange service that provides a high-
capacity digital connection to end-user CPE. There are two types.
(1) ISDN BRI (2B+D) provides the equivalent of 2 digital voice-grand
channels (64 kbps) and one control channel. (2) ISDN PRI (23B+D)
provides the equivalent of 23 digital voice-grade (B) channels, and
has 1 “data” (D) or control channel over a 1.5 MBPS circuit. Small
businesses and residential end-users often use ISDN BRI. Large
business customers and ESPs typically purchase ISDN PRI,
because it allows for flexible and dynamic control by the end-user
of the entire 1.5 MBPS capability from the LEC, and also allows
end-user call control signaling flexibility.
85 In the Matter of Administration of the NANP, 20 FCC Rcd 2957,
2959 (2005).
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 48

In 2008, the FCC amended its rules to expressly allow CMRS
providers to engage in ESP wholesale numbering partner service in
competition with LECs. It required LECs to port numbers in to a
CMRS provider upon request when the CMRS provider is serving an
interconnected VoIP provider, and it made special implementing
provisions within its porting rules to facilitate this competition.86

T-Mobile87 specifically required ILECs to let CMRS providers
have ISP-bound terms. ISP-bound traffic to an ESP served by a
CMRS provider is non-access traffic. Thus, in 2005 and then again
in 2008, the FCC specifically amended its rules to clarify that CMRS
carriers can provide telephone exchange service to ESPs, and
correctly characterized the traffic as retail and non-access.88 In the
CMRS context, that necessarily means that traffic from a PSTN

86 In the Matter of Telephone Number Requirements for IP-Enabled
Services Providers
, 22 FCC Rcd 19531, 19549-50 (2007).
87 In the Matter of Developing a Unified Intercarrier Compensation
Regime, T-Mobile et al. Petition for Declaratory Ruling Regarding
Incumbent LEC Wireless Termination Tariffs
, 20 FCC Rcd 4855,
4856, 4865, ns. 6, 14, 16 (2005).
88 CMRS providers have always provided telephone exchange
service, Local Competition Order, 11 FCC Rcd at 16999, ¶1013, so
express recognition that this can include service to an ESP did not
make new law.
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 49

caller to an ESP’s CPE and traffic from an ESP’s CPE to a called
party on the PSTN is intraMTA if the ESP’s CPE and the other party
are both in the same MTA.

Paragraphs 1005 and 1006 of the Order, which discuss Halo
by name and Transcom by implication, abruptly and without
explanation depart from the FCC’s prior precedent and rules.
Paragraph 1006 holds that Halo is providing transiting (rather than
telephone exchange service to Transcom), and it holds that traffic is
subject to the intraMTA rule “only if the calling party initiating the
call has done so through a CMRS provider.”89 The FCC went so far
as to question whether a CMRS numbering partner arrangement
(which was suddenly transmuted from telephone exchange service
to transiting) is even a “CMRS service,”90 even though it had
expressly blessed service to ESPs in T-Mobile – which was in this
proceeding – and in the porting context.

89 The FCC failed to apply its prior holdings that CMRS providers
like Halo can be a numbering partner to ESPs by providing a retail
“ISDN-like” service. Instead, the FCC looked through this
arrangement to see if the distant “calling party initiating the call”
was a CMRS subscriber–even though the “calling party” is not
Transcom’s customer or Halo’s customer.
90 See Order at n. 2128.
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Halo and Transcom advised the FCC that they were merely
doing what the FCC had specifically authorized in 2005 and 2008.
[J.A. __]. The FCC nonetheless chose to abruptly and without any
explanation reverse course by characterizing CMRS numbering
partner service to ESPs as transiting rather than telephone
exchange service. By questioning whether number partner service is
even CMRS at all, the FCC has effectively guaranteed that CMRS
providers will not participate in this market.
The FCC’s new approach to CMRS numbering partner service
stands in stark contrast to its treatment of ESP traffic when a LEC
is the numbering partner. Paragraph 1006 of the Order holds
(incorrectly) that Transcom is not an end-point on its CMRS
numbering partner’s network for ICC purposes, but elsewhere the
Order inconsistently provides that a call from the PSTN to a LEC
numbering partner and then handed off to a VoIP provider for
delivery in some distant location on some other ultimate network
constitutes a termination on the exchange carrier’s network for ICC
purposes. See rules 51.703(c) and 51.913(b).
The FCC’s disposition even as to LEC numbering partner
service is, however, internally and logically inconsistent. LEC
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 51

wholesale partners to VoIP providers are treated as the originating
carrier for ICC purposes because they bear the ICC burden,91 but
the determination of whether a call is non-access
telecommunications or access reciprocal compensation is based on
the geographic location of the actual IP end-point, which often will
be on a completely different network, or on the Internet. Thus, an
exchange carrier acting as a wholesale partner is simultaneously
originating the call and not originating the call for ICC purposes.
Further, even though the exchange carrier is actually providing
telephone exchange service (or exchange access, according to the
FCC) to the ESP, and it is not providing a telephone toll service, it is
nonetheless assigned telephone toll compensation burdens for
“LEC-LEC” traffic that do not comport with section 252(d)(2).

The FCC arbitrarily, capriciously, and without
acknowledgement or explanation, reversed prior precedent by
effectively preventing CMRS providers from acting as wholesale or
numbering partners to ESPs, thereby depriving Transcom of a

91 See Order ¶¶ 721, 729, 980, 998, 1006 (explaining that the
“originating” carrier is cost-responsible, and applying to VoIP even if
the calls starts on other network).
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 52

significant source of competitive supply for exchange services.
Transcom is now largely limited to LEC-provided services, and has
to try to survive within the FCC’s new regime for ESPs that receive
LEC-based service, including the massive cost increase occasioned
by the Order because its LEC vendors now pay access reciprocal
compensation rather than non-access reciprocal compensation on
LEC-LEC traffic.
E.
The FCC engaged in faulty adjudication.
The ILECs asserted that Transcom is an IXC.92 Transcom
showed that it is not a common carrier, and more important,
provides enhanced/information services.93 Transcom supplied
several federal court rulings directly so holding.94
The FCC did not decide this question in paragraph 1006 of the
Order. The FCC did not apply the appropriate analysis for common

92 See, e.g., TDS, et al. September 23, 2011 ex parte slide 28.
93 Transcom November 9, 2011 ex parte, p. 2 and attachments;
Transcom October 17, 2011 ex parte, pp. 2-3.
94 Id.
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 53

carriage.95 The FCC certainly could not just impose common carrier
status without careful analysis and individualized attention to
Transcom-specific facts.96 There is no “unfettered discretion in the
Commission to confer or not confer common carrier status on a
given entity, depending upon the regulatory goals it seeks to
achieve. The common law definition of common carrier is
sufficiently definite as not to admit of agency discretion in the
classification of operating communications entities.”97
Since the FCC did not find common carriage, the necessary
result is that Transcom is an end-user. As an end-user, Transcom
is able to purchase telephone exchange service, and Transcom’s

95 NARUC v. FCC, 525 F.2d 630, 641-642 (D.C. Cir. 1976) (NARUC I)
(carrier must voluntarily undertake “to carry for all people
indifferently”; or it is decided there will be “any legal compulsion
thus to serve indifferently, and if not, second, whether there are
reasons implicit in the nature of [the entity’s] operations to expect
an indifferent holding out to the eligible user public”); NARUC v.
FCC
, 533 F.2d 601, 608-610 (D.C. Cir. 1976)(NARUC II)(“to be
common carrier one must allow customers to “transmit intelligence
of their own design and choosing”)(collectively “NARUC”).
96 If the FCC had undertaken to decide the question the only
evidence on any of the NARUC prongs came from Transcom and
conclusively demonstrated that Transcom is not a common carrier.
The ILECs’ “proof” was vigorous assertion and ipse dixit.
97 NARUC I, 525 F.2d at 644.
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 54

CPE is an end-point where calls originate or terminate for
compensation purposes. But the FCC did not follow this mandatory
course. Instead, it held in paragraph 1006 of the Order that Halo
was providing transiting – which involves a carrier-carrier
relationship rather than a carrier-user relationship.98 The FCC
unlawfully deprived Transcom of its end-user status, but it never
actually held that Transcom is not an end-user.
The FCC also singled out Halo/Transcom and made entity-
specific adjudicatory findings concerning the specific service that
Halo was providing and Transcom was receiving. Specifically, the
FCC’s “transiting” finding necessarily means Halo was not providing
telephone exchange service to Transcom, and was instead engaging
in carrier-carrier activity. The FCC could reach its desired result
only if Transcom is a common carrier, but it did not resolve that
first-order question.

98 See Order ¶ 1311. The FCC did what the D.C. Circuit held it
could not do in both Bell Atlantic and WorldCom: treat an ESP as an
intermediate rather than an end-point for ICC purposes.
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 55

The analysis was incomplete, arbitrary, and inconsistent. The
FCC’s faulty adjudication of the Halo/Transcom issue must be
reversed.
F.
The FCC unlawfully extended call identifying rules and
“must-carry” rules to non-carriers.

An agency can impose rules on entities subject to regulation
even when there are “relatively immediate effects for parties beyond
those directly subject to regulation.”99 There is a difference,
however, between rules mandating or prohibiting action by a
regulated entity that has an effect on others, and rules that
specifically target unregulated entities. The rules in Nat’l Cable &
Telecomms. Ass’n applied “only to [regulated] cable companies,
however, and they neither require nor prohibit any action by
[unregulated] MDUs.”100 In contrast, the signaling and blocking
rules in the Order do directly regulate non-carriers.

99 Nat’l Cable & Telecomms. Ass’n v. FCC, 567 F.3d 659, 666 (D.C.
Cir. 2009). Rules applying to regulated entities cannot exploit a
perceived ambiguity to “render nugatory restrictions that Congress
has imposed,” Nat’l Cable & Telecomms. Ass’n, 567 F.3d at 666,
citing AFL-CIO v. Chao, 409 F.3d 377, 384 (D.C. Cir. 2005), and as
shown above that has occurred here too.
100 Nat’l Cable & Telecomms. Ass’n, 567 F.3d at 667.
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 56

1.
The FCC’s call identifying obligations impermissibly
regulate non-carriers.

New rule 64.1600(f) defines “intermediate provider” as “any
entity that carries or processes traffic that traverses or will traverse
the PSTN at any point insofar as that entity neither originates nor
terminates that traffic.”101 This sweeping coverage extends far
beyond common carriers or even interconnected VoIP providers; it
includes anyone that touches traffic but does not originate or
terminate. Since the FCC apparently believes that traffic does not
originate or terminate at a “leaky PBX,” the new rule regulates
thousands of enterprises with corporate networks like the one in
ARCO. Transcom is an “intermediate provider” under this definition,
since paragraph 1006 of the Order holds that Transcom does not
originate traffic. Transcom and every other non-carrier private
network operator that in any way connects to the PSTN using a
leaky PBX are now regulated entities under new rule 64.1601(a)(2).

Paragraph 718, note 1232, of the Order asserts that Title I
provides jurisdiction to impose call identifying obligations on non-
common carriers because “the regulations are reasonably ancillary

101 (emphasis added).
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 57

to the Commission’s effective performance of its statutorily
mandated responsibilities.”102 Title I, however, does not give
“untrammeled freedom to regulate activities over which the statute
fails to confer….Commission authority.”103
The call identifying rules assert plenary authority over entities
that are not within Title II. The question is therefore whether there
is a specific delegation that can be sufficiently stretched to allow
this action. Note 1232 of the Order lists one statutory justification
for the new rules: section 706 [47 U.S.C. § 1302], which is not even
part of the Act. Section 706, however, “does not constitute an
independent grant of…authority to employ other regulating
methods.”104 In any event, section 706 pertains to broadband, but
the call identifying rules relate to the PSTN. Section 706 does not

102 Comcast Corp. v. FCC, 600 F.3d 642, 646 (D.C. Cir. 2010)
(quoting Am. Library Ass’n v. FCC, 406 F.3d 689, 691-692 (D.C. Cir.
2005)).
103 Comcast, 600 F.3d at 661 (D.C. Cir. 2010)(internal quotes
omitted).
104 Comcast, 600 F.3d at 659 (citing In re Deployment of Wireline
Servs. Offering Advanced Telecomms. Capability
, 13 FCC Rcd.
24011, 24044, ¶ 69 (1998)); see also McDowell Dissent, 26 FCC Rcd
at 18410 (“section 706 is narrow in scope and does not provide the
Commission with specific or general authority to do much of
anything”).
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 58

even apply. The FCC’s sole justification (section 706) for the
assertion of sweeping plenary call identifying authority over non-
common carriers fails.
2.
The FCC unlawfully imposed “must-carry”
obligations on non-common carriers.

Paragraph 974 of the Order prohibits interconnected and non-
interconnected VoIP providers from “blocking” traffic. They must
carry all calls. As noted, Transcom does not provide either of these
services, so the requirement may not apply. If the FCC nonetheless
intended to extend its “must-carry” ruling to Transcom, it acted far
outside of its authority and was arbitrary and capricious.

An entity that is not a common carrier has the inherent right
to “make individualized decisions, in particular cases, whether and
on what terms to deal.”105 A non-common carrier can freely choose
whether to serve, or not serve, and if it decides whether to serve it
has the right to decide whether its service will, or will not, include
certain capabilities. Transcom can choose where it wants to provide
service, and where it wants to not provide service. Transcom has
absolutely no duty to indifferently serve. Since Transcom is not an

105 NARUC I, 525 F.2d at 641.
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 59

FCC licensee of any sort, it has no obligation to carry content-
neutral information to any and all destinations selected by its
customer.

The “must carry” obligation (if it applies) imposes a carrier
burden on Transcom, results in higher termination costs for
Transcom, particularly in rural areas,106 and forces Transcom to
send traffic to these new high-cost areas even when it does not wish
to do so.

The FCC cannot conscript Transcom into this kind of
servitude. The FCC’s call identifying rule and the “must-carry”
obligation (if it applies to Transcom) are far beyond the FCC’s
authority and are arbitrary and capricious.

106 Paragraph 974 of the Order recognized that the new rules create
an incentive to “block” in order to avoid high access costs.
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 60

CONCLUSION



The FCC is acting under the statute it wishes it had, not the
statute it has. “[N]otwithstanding the difficult regulatory problem of
rapid technological change posed by the communications industry,
the allowance of wide latitude in the exercise of delegated powers is
not the equivalent of untrammeled freedom to regulate activities
over which the statute fails to confer.”107 The FCC is straining to
implement its preferred policy despite the Act, rather than
consistent with it. The FCC is asserting powers it simply does not
have, and doing things that the Act does not permit. The FCC does
not have the discretion, or general or ancillary jurisdiction, to ignore
statutory requirements or prohibitions by conflating the distinctly
different rights, duties, and obligations assigned to carriers on the
one hand and end-users on the other. Nor can it so casually assign
the duties of one on the other, or confer the benefits of one on the
other, in the absence of specific authority.

In particular, the FCC cannot turn non-carrier ESP end-users
into carriers or quasi-carriers, but that is precisely what it did to

107 Comcast, 600 F.3d at 661.
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 61

ESPs in the Order. The holding that ESPs purchase exchange
access rather than telephone exchange service is flatly inconsistent
with the Act’s definitions. The holding that an ESP’s exchange
service vendor must pay non-cost based termination charges
violates section 252(d)(2).

Ultimately, the FCC has repeated and compounded the error
identified by the D.C. Circuit in Bell Atlantic and WorldCom by
treating ESP CPE as an intermediate switching point rather than
end points from which calls originate or terminate for compensation
purposes. The FCC’s imposition of “call identifying” rules on “any
entity that carries or processes traffic that traverses or will traverse
the PSTN at any point” impermissibly regulates end-users operating
private networks. The imposition of must-carry obligations on non-
carriers has no basis in the Act.
Transcom asks this Court to hold unlawful and vacate the
Order.
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 62

Respectfully submitted,


/s/ W. Scott McCollough

W. SCOTT MCCOLLOUGH


Texas Bar No. 13434100

MCCOLLOUGH|HENRY PC

1250 S. Capital of Texas Hwy., Bldg.
2-235
West Lake Hills, TX 78746
Phone: 512.888.1112
Fax: 512.692.2522
wsmc@dotlaw.biz

Attorneys for Transcom


Enhanced Services, Inc.



October 23, 2012





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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 63

CERTIFICATE OF COMPLIANCE

Certificate of Compliance With Type-Volume Limitations,
Typeface Requirements, Type Style Requirements, Privacy
Redaction Requirements, and Virus Scan



1.
This filing complies with the type-volume limitation of the
Amended First Briefing Order because it contains 9,033 words,
excluding the parts of the filing exempted by Fed. R. App. P.
32(a)(7)(B)(iii).

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

3.
All required privacy redactions have been made.

4.
This filing was scanned for viruses with Symantec
Endpoint Protection, version 11, updated on October 23, 2012, and
according to the program is free of viruses.

/s/ W. Scott McCollough

October 23, 2012
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Appellate Case: 11-9900 Document: 01018937517 Date Filed: 10/23/2012 Page: 64

CERTIFICATE OF SERVICE

I hereby certify that on October 23, 2012 I caused the
foregoing document 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/ W. Scott McCollough

October 23, 2012


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