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Tribal Carriers' Principal Brief - In Re: FCC 11-161 (10th Cir.)

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Released: October 31, 2012
Appellate Case: 11-9900 Document: 01018937588 Date Filed: 10/23/2012 Page: 1

No. 11-9900


IN THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_____________________
IN RE: FCC 11-161
_____________________

On Petition for Review of

an Order of the Federal Communications Commission

UNCITED TRIBAL CARRIERS’ PRINCIPAL BRIEF


AKIN GUMP STRAUSS HAUER &

AKIN GUMP STRAUSS HAUER &

FELD LLP

FELD LLP

MICHAEL C. SMALL
PATRICIA A. MILLETT
2029 CENTURY PARK E. SUITE 2400
JAMES E. TYSSE
LOS ANGELES, CA 90067
SEAN T. CONWAY
TELEPHONE: 310-229-1000
1333 NEW HAMPSHIRE AVENUE, N.W.
FACSIMILE: 310-229-1002
WASHINGTON, DC 20036
MSMALL@AKINGUMP.COM
TELEPHONE: 202-887-4000

FACSIMILE: 202-887-4288
JOHN B. CAPEHART
PMILLETT@AKINGUMP.COM
1700 PACIFIC AVENUE, SUITE 4100
JTYSSE@AKINGUMP.COM
DALLAS, TX 75201
SCONWAY@AKINGUMP.COM
TELEPHONE: 214-969-2800

FACSIMILE: 214-969-4343

JCAPEHART@AKINGUMP.COM


Counsel for Petitioners the Gila River Indian Community and
Gila River Telecommunications, Inc.
October 23, 2012

Appellate Case: 11-9900 Document: 01018937588 Date Filed: 10/23/2012 Page: 2

CORPORATE DISCLOSURE STATEMENT

No publicly traded company owns 10% or more of the stock of Gila River
Telecommunications, Inc., which is wholly owned and operated by Gila River
Indian Community, a federally recognized Indian tribe.

i


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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ........................................................i
GLOSSARY OF TERMS ..................................................................................... vii
ISSUE PRESENTED ............................................................................................... 1
STATEMENT OF THE CASE ................................................................................ 1
A.
Introduction ......................................................................................... 1
B.
Statement Of Facts .............................................................................. 3
1.
Congress’s Commitment To Universal Communications
Services ..................................................................................... 3

2.
The Universal Service Fund ...................................................... 5
3.
Intercarrier Compensation ........................................................ 7
4.
Gila River .................................................................................. 8
5.
The State Of Communications Services on Tribal Lands ........ 9
C.
Relevant Procedural History ............................................................. 11
1.
The FCC Raised Tribal Communications Services Issues
In Its Notices Regarding the Universal Service Fund ............ 11

2.
The Order’s Decision To Group Carriers Serving Tribal
Lands With All Other Carriers Despite Differing Needs ....... 14

SUMMARY OF ARGUMENT ............................................................................. 18
ARGUMENT ......................................................................................................... 21
I.
STANDARD OF REVIEW .............................................................. 21
ii

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II.
THE ORDER’S APPLICATION OF SECTION 254’S
UNIVERSAL SERVICE PRINCIPLES IS ARBITRARY AND
CAPRICIOUS BECAUSE THERE IS NO RATIONAL
CONNECTION BETWEEN THE FCC’S FINDINGS
REGARDING THE DISMAL STATE OF
COMMUNICATIONS SERVICES ON TRIBAL LANDS
AND ITS SUBJECTION OF TRIBAL CARRIERS TO RULES
RESULTING IN FUNDING CUTS ................................................. 22

A.
The FCC Offered No Explanation For Its Failure To
Correlate Funding To Need Or To Advancement Of
Congress’s Universal Service Goal ........................................ 24

B.
The One-Size-Fits-All Treatment Of Rate-Of-Return
Carriers Contravenes The FCC’s Own Findings And
Substantial Record Evidence Establishing The Need For
Increased Funding On Tribal Lands ....................................... 25

C.
The FCC Failed to Articulate How Its One-Size-Fits-All
Approach to Rate-of-Return Carriers Will Provide
Sufficient Support to Carriers Serving Tribal Lands To
Enable Them To Fulfill New Obligations Imposed By
The Order ................................................................................ 30

D.
The FCC’s Grant Of A Temporary Exemption To One
Tribally Owned But Not Any Other Tribally Owned
Carriers Is Arbitrary And Capricious ...................................... 33

CONCLUSION ...................................................................................................... 35
CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a) AND COURT
BRIEFING ORDERS
CERTIFICATE OF DIGITAL SUBMISSION
CERTIFICATE OF SERVICE

iii

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TABLE OF AUTHORITIES

CASES:

Alenco Commc’ns, Inc. v FCC,
201 F.3d 608 (5th Cir. 2000) .............................................................................. 30
Carpenters and Millwrights v. NLRB,
481 F.3d 804 (D.C. Cir. 2007) ................................................................ 21, 34, 35
Chevron, USA v. NRDC,
467 U.S. 837 (1984) ............................................................................................ 21
Cliffs Synfuel Corp. v. Norton,
291 F.3d 1250 (10th Cir. 2002) .................................................................... 21, 24
Connecting America: The Nat’l Broadband Plan,
2010 WL 972375 (FCC Mar. 16, 2010) ......................................................passim
Ecology Ctr., Inc. v. U.S. Forest Serv.,
451 F.3d 1183 (10th Cir. 2006) .............................................................. 21, 24, 25
Home Box Office, Inc. v. FCC,
567 F.2d 9 (D.C. Cir. 1977) ................................................................................ 33
NorAm Gas Transmission Co. v. FERC,
148 F.3d 1158 (D.C. Cir. 1998) .......................................................................... 21
Qwest Commc’ns Int’l Inc. v. FCC,
398 F.3d 1222 (10th Cir. 2005) ............................................................ 1, 4, 23, 25
Qwest Corp. v. FCC,
258 F.3d 1191 (10th Cir. 2001) .................................................................. 3, 4, 23
U.S. Telecom Ass’n v. FCC,
400 F.3d 29 (D.C. Cir. 2005) .............................................................................. 28
iv

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STATUTES:

47 U.S.C.
§ 151 ...................................................................................................................... 3
§ 214(e) ................................................................................................................. 6
§ 251 ...................................................................................................................... 3
§ 254 .............................................................................................................passim
§ 254(b) ........................................................................................................passim
§ 254(b)(1) .................................................................................................. 4, 5, 22
§ 254(b)(2) ................................................................................................ 5, 22, 24
§ 254(b)(3) ................................................................................................ 5, 22, 24
§ 254(b)(5) ...................................................................................................... 5, 22
§ 254(c)(1) ............................................................................................................ 6
§ 254(e) ........................................................................................................... 5, 22
Act of Feb. 28, 1859, 11 Stat. 401 ............................................................................. 8

OTHER AUTHORITIES:

Copps, Michael J., Commissioner, Remarks to the National Congress of
American Indians (Nov. 17, 2010), available at
http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-302854A1.pdf ......... 10
FCC, MAP: REGULATORY TYPE AT THE HOLDING COMPANY LEVEL BY STUDY
AREA, http://www.fcc.gov/maps/regulatory-type-holding-company-level-
study-area. ............................................................................................................. 6
GAO, TELECOMMUNICATIONS: CHALLENGES TO ASSESSING AND IMPROVING
TELECOMMUNICATIONS FOR NATIVE AMERICANS ON TRIBAL LANDS
(2006), available at http://www.gao.gov/new.items/d06189.pdf. ..................... 10
GILROY, ANGELE A., CONG. RESEARCH SERV., RL33979, UNIVERSAL
SERVICE FUND: BACKGROUND AND OPTIONS FOR REFORM (2011) .................. 4, 6
GILROY, ANGELE A. & LENNARD G. KRUGER, CONG. RESEARCH SERV.,
R42524, RURAL BROADBAND: THE ROLES OF THE RURAL UTILITIES
SERVICE AND THE UNIVERSAL SERVICE FUND (2012) ....................................... 6, 7
Press Release, FCC, FCC Kicks-Off ‘Connect America Fund’ With Major
Announcement, Public Notice (July 25, 2012) ................................................... 29
v

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FCC DECISIONS:

Notice of Inquiry, In re Improving Commc’ns Servs. for Native Nations, 26
FCC Rcd. 2672 (2011) (No. 11-41) .............................................................. 10, 27
Notice of Inquiry and Notice of Proposed Rulemaking, In re Connect
America Fund, 25 FCC Rcd. 6657 (2010) (No. 10-90) ...................................... 11
Notice of Proposed Rulemaking, In re Universal Serv. Reform Mobility
Fund, 25 FCC Rcd. 14716 (2010) (No. 10-208) ................................................ 27
Notice of Proposed Rulemaking and Further Notice of Proposed
Rulemaking, In re Connect America Fund, 26 FCC Rcd. 4554 (2011)
(No. 10-90) ................................................................................................ 7, 12, 13
Public Notice, Further Inquiry Into Certain Issues in the Universal Serv.-
Intercarrier Compensation Transformation Proceeding, 26 FCC Rcd.
11112 (2011) (Nos. 10-90, 07-135, 05-337, 03-109) ......................................... 14
Report and Order, In re Federal-State Joint Bd. on Universal Serv.,
12 FCC Rcd. 8776 (1997) ................................................................................. 1, 5
Report and Order and Further Notice of Proposed Rulemaking, In re
Connect America Fund,
26 FCC Rcd. 17663 (2011) ..........................................................................passim
Report and Order and Further Notice of Rulemaking, Extending Wireless
Telecommc’ns Servs. to Tribal Lands, 15 FCC Rcd 11794 (2000) (No.
99-266) .................................................................................................................. 9
vi

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GLOSSARY OF TERMS

“1996 Act”
Telecommunications Act of 1996

“Broadband Plan”
Connecting America: The Nat’l Broadband
Plan
, 2010 WL 972375 (FCC Mar. 16, 2010)

“CRS REPORT”
ANGELE A. GILROY, CONG. RESEARCH SERV.,

RL33979, UNIVERSAL SERVICE FUND:

BACKGROUND AND OPTIONS FOR REFORM (2011)

“CRS SUMMARY”
ANGELE A. GILROY & LENNARD G. KRUGER,
CONG. RESEARCH SERV., R42524, RURAL
BROADBAND: THE ROLES OF THE RURAL
UTILITIES SERVICE AND THE UNIVERSAL SERVICE
FUND (2012)

“Eligible carrier” or “ETC”
Eligible telecommunications carrier


“FCC”
Federal Communications Commission

“First USF Order”
In re Federal-State Joint Bd. on
Universal Serv.
, 12 FCC Rcd. 8776
(1997) (No. 96-45)

“Fund” or “USF”
Universal Service Fund
“ICC”
Intercarrier compensation
“Native Nations Notice”
Notice of Inquiry, In re Improving Commc’ns
Servs. for Native Nations
, 26 FCC Rcd. 2672
(2011) (No. 11-41)

“Order”
In re Connect America Fund, 26
FCC Rcd. 17663 (2011)

Qwest I
Qwest Corp. v. FCC, 258 F.3d 1191 (10th Cir.
2001)


vii

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Qwest II
Qwest Commc’ns Int’l Inc. v. FCC, 398 F.3d
1222 (10th Cir. 2005)

“Second Notice”
Notice of Proposed Rulemaking and Further
Notice of Proposed Rulemaking, In re Connect
America Fund
, 26 FCC Rcd. 4554 (2011) (No.
10-90)
viii

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ISSUE PRESENTED

Whether the FCC acted arbitrarily and capriciously in attempting to
implement the statutory directives governing universal service in Section 254(b) of
the Telecommunications Act of 1996 (“1996 Act”) through the imposition of
uniform rules resulting in substantial cuts in its universal service fund’s support for
many carriers, which failed to take into account the substantial record evidence,
undisputed by the FCC, that the state of communications services on Tribal lands
is especially poor and faces unique disabilities that warrant an increase in universal
service fund support for carriers serving Tribal lands.

STATEMENT OF THE CASE

A.

Introduction

Congress has long been committed to the goal of universal communications
service so as to ensure that “consumers throughout the nation, in both rural and
urban markets, have access to an evolving range of telecommunications services.”
Qwest Commc’ns Int’l Inc. v. FCC, 398 F.3d 1222, 1226 (10th Cir. 2005) [“Qwest
II”] (citation omitted). Congress enacted that goal into law in Section 254 of the
1996 Act, 47 U.S.C. § 254. To carry out the universal service mandate, the FCC
has established a universal service fund to provide financial support to carriers.
See In re Federal-State Joint Bd. on Universal Serv., 12 FCC Rcd. 8776 (1997)
(No. 96-45) (“First USF Order”). The universal service fund has made it possible
to bridge service disparities between regions of the Country.

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When it comes to services on Tribal lands, however, the FCC has never
come close to attaining universal service. Even the most rudimentary telephone
service on Tribal lands has long lagged behind the rest of the Country, and it
remains profoundly unavailable today. The FCC expressly acknowledged this
reality in the Order on review, see In re Connect America Fund, 26 FCC Rcd.
17663 (2011) (“Order”), recognizing that additional financial support for carriers
providing service on Tribal lands was needed to address significant service gaps on
those lands and to achieve the goal of universal service. The Order’s new
universal service fund rules, however, broke company with these findings; despite
finding different needs, the Order subjects most carriers serving Tribal lands to the
same draconian cutbacks in financial support as other carriers. As a result, the
Order actually makes matters worse on Tribal lands, and unravels the goal of
universal service by locking in services that are far inferior to those available
almost everywhere else in the United States.
Petitioners Gila River Indian Community and Gila River
Telecommunications, Inc. (collectively, “Gila River”) are signatories to the
Uncited Joint Universal Service Fund Principal Brief and the Uncited Joint
Intercarrier Compensation Principal Brief, which argue that the Order is arbitrary
and capricious because, inter alia, the FCC failed to articulate how its universal
service fund and intercarrier compensation rules are compatible with Sections 254

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and 251, respectively. This separate “Tribal Carriers” brief demonstrates that the
Order is arbitrary and capricious for an additional, distinctive reason: there is no
rational connection between the evidence before the FCC, which the FCC
acknowledged established the uniquely poor state of communications services on
Tribal lands, and the FCC’s ultimate determination to woodenly apply the new
“one-size-fits-all” universal service rules in a way that ignored undisputed and
substantial disparities in the need for additional funds. The Order offers no
explanation or rationale—and there is none—for the FCC’s departure from its
recognition that conditions on Tribal lands demanded additional support.

B.

Statement Of Facts

1.

Congress’s Commitment To Universal Communications
Services

Congress created the FCC in 1934 for the purpose of making “available ***
to all the people of the United States *** a rapid, efficient, Nation-wide, and
world-wide wire and radio communication service with adequate facilities at
reasonable charges.” 47 U.S.C. § 151. The goal of universal service for all
Americans “has been at the core of the Commission’s mandate since its founding.”
Order ¶ 61. One obstacle to achieving universal service is that “[t]he cost of
providing *** services to customers varies widely.” Qwest Corp. v. FCC, 258
F.3d 1191, 1195 (10th Cir. 2001) [“Qwest I”]. In particular, “it is generally more
expensive for a telephone company to provide service in a rural area, where

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customers are dispersed, than it is to provide the same service in an urban area,
where customers are more concentrated.” Id.
For most of the 20th century, when the Bell system held a monopoly over
telecommunications service, efforts to expand service led to the development of a
complex system of state and federal cross-subsidies. Qwest II, 398 F.3d at 1226.
The cross-subsidy policies increased the number of subscribers to the network by
shifting costs among the Bell subsidiaries and subscribers such that profits from
lower cost urban areas helped to subsidize deployment and operation costs in
higher cost rural areas. See ANGELE A. GILROY, CONG. RESEARCH SERV.,
RL33979, UNIVERSAL SERVICE FUND: BACKGROUND AND OPTIONS FOR REFORM 2
(2011) (“CRS REPORT”). The breakup of the Bell monopoly, however, rendered
the system of cross-subsidies untenable. See id.; see also Qwest II, 398 F.3d at
1226.
In the 1996 Act, Congress replaced this cross-subsidies system with new
mechanisms to ensure universal service and, in doing so, explicitly codified in
Section 254 its commitment to universal service. Qwest I, 258 F.3d at 1196.
Congress laid out in Section 254(b) several principles to guide the FCC’s
implementation of policies and regulations to promote universal service. As
relevant here, those principles are:
(1) Quality and rates. Quality services should be
available at just, reasonable, and affordable rates.

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(2) Access to advanced services. Access to advanced
telecommunications and information services should be
provided in all regions of the Nation.
(3) Access in rural and high cost areas. Consumers in
all regions of the Nation, including low-income
consumers and those in rural, insular, and high cost areas,
should have access to telecommunications and
information services, including interexchange services
and advanced telecommunications and information
services, that are reasonably comparable to those services
provided in urban areas and that are available at rates that
are reasonably comparable to rates charged for similar
services in urban areas.
***
(5) Specific and predictable support mechanisms.
There should be specific, predictable and sufficient
Federal and State mechanisms to preserve and advance
universal service.
47 U.S.C. § 254(b)(1)-(3), (5)

Congress also required the Commission to establish a universal service
support mechanism under which certain carriers could receive “support only for
the provision, maintenance, and upgrading of facilities and services for which the
support is intended.” 47 U.S.C. § 254(e). In addition, such support was to be both
“explicit and sufficient to achieve” Congress’s purposes in the 1996 Act. Id.
2.

The Universal Service Fund

Pursuant to those congressional directives, the FCC established the
Universal Service Fund (“Fund” or “USF”) by administrative order in 1997. See
First USF Order. The Fund provides support and discounts for providers and
subscribers through four programs. The program relevant here is the “high-cost”

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program, under which carriers who generally serve rural, insular, and other high-
cost areas can obtain funds to help offset the higher-than-average costs of
providing communications services in such areas. CRS REPORT at 3.
Only carriers designated as “eligible telecommunications carriers” in their
service area may receive Fund support in the high-cost program. 47 U.S.C.
§§ 214(e), 254(c)(1). There are three types of such “eligible carriers.” The first
two types are “price-cap” carriers and “rate-of-return” carriers, which are
incumbent landline telephone carriers. ANGELE A. GILROY & LENNARD G.
KRUGER, CONG. RESEARCH SERV., R42524, RURAL BROADBAND: THE ROLES OF
THE RURAL UTILITIES SERVICE AND THE UNIVERSAL SERVICE FUND 9-10 (2012)
(“CRS SUMMARY”). Price-cap carriers tend to be large and mid-sized carriers
(such as CenturyLink), while rate-of-return carriers tend to be smaller companies
that solely serve rural areas (such as Gila River). See id. Almost all regions of the
country, including all Tribal lands, have either a price-cap carrier or a rate-of-
return carrier designated to provide service to that area. FCC, MAP: REGULATORY
TYPE AT THE HOLDING
COMPANY
LEVEL BY STUDY
AREA,
http://www.fcc.gov/maps/regulatory-type-holding-company-level-study-area.
The third type of eligible carrier is the “competitive *** carrier,” which
typically entered the market after the breakup of the Bell monopoly (such as U.S.
Cellular, for example, is a competitive carrier). CRS SUMMARY at 11. While

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some competitive carriers are landline carriers, most are wireless carriers. Id. The
competitive carriers compete directly with the incumbent price-cap or rate-of-
return carriers providing service.
3.

Intercarrier Compensation

Intercarrier compensation (“ICC”) “is a system of regulated payments in
which carriers compensate each other for the origination, transport and termination
of telecommunications traffic.” Connecting America: The Nat’l Broadband Plan,
2010 WL 972375, at *125 (FCC Mar. 16, 2010) (“Broadband Plan”). Under the
existing system, when someone places a call that terminates on a different network,
the calling party’s carrier is charged a regulated fee by the recipient’s carrier.
Order ¶ 34. This fee is based on the cost to the recipient’s carrier for terminating
the call. Order ¶ 742. In the Order, the FCC discards that system for a “bill-and-
keep” regime, in which the recipient’s carrier must look only to the recipient, and
not to the calling party’s carrier, to recover the cost of connecting the call. Id.
Because many carriers serving Tribal lands will be net losers under the new
regime, the FCC solicited comment on whether to provide additional support to
certain carriers, including those serving Tribal lands, to offset lost ICC revenues.
Notice of Proposed Rulemaking and Further Notice of Proposed Rulemaking, In re
Connect America Fund ¶ 559, 26 FCC Rcd. 4554 (2011) (No. 10-90) (“Second
Notice”).

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4.

Gila River

Petitioner Gila River Indian Community is a federally recognized Indian
tribe that was established in 1859.1 The Community is centered in an
approximately 372,500-acre reservation in rural southern Arizona, where more
than 11,000 Tribe members reside. Gila River Comments 2-4 (Apr. 18, 2011). In
recent decades, the Community has sought to bolster its economy to promote the
welfare of its members. Gila River Telecommunications, Inc., which was formed
in 1988 when the Community purchased a local telephone company, is wholly
owned and operated by the Community and provides communications services to
those living on the reservation. Id. at 2.
The cost to Gila River Telecommunications of providing even basic
telecommunications service to the Community, never mind advanced
telecommunications and information services, is very high. See Gila River
Comments 4-5 (Apr. 18, 2011). One reason for the high costs is the Community’s
low population density, which forces Gila River Telecommunications to extend
expensive communications infrastructure over long distances in order to serve a
relatively small number of subscribers. See id. (citing the high costs of building
out infrastructure on rural, sparsely populated areas with a economically depressed
subscriber base). The Community, like many Tribes, also has a “shortage of

1 See Act of Feb. 28, 1859, §§ 3-4, 11 Stat. 401.

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technically trained” and highly educated members, Broadband Plan, 2010 WL
972375, at *142, which forces Gila River Telecommunications to contract with
more outside vendors than similarly sized carriers, and to pay higher salaries in
order to lure skilled employees from the Phoenix metropolitan area, Gila River
Comments 11 (Jan. 18, 2012) (discussing lack of technically trained members of
Gila River).
Finally, and most importantly, the cost to Gila River Telecommunications of
deploying and maintaining its network is extremely high. See Gila River
Comments 4-5 (Apr. 18, 2011). Obtaining rights of way and permit approvals,
deploying communications networks in regions that lack basic infrastructure like
roads and bridges, and preserving historical and cultural sites are just a handful of
the factors that uniquely drive up the cost of the network. See Gila River
Comments 9-11 (Jan. 18, 2012) (discussing the costs and delays of building out
infrastructure on Tribal lands); see also Comments of Nat’l Tribal Telecommc’ns
Assoc. 42 (Apr. 18, 2011) (noting regulatory hurdles for deploying infrastructure).
5.

The State Of Communications Services on Tribal Lands

The FCC has long recognized that “communities on Tribal lands have
historically had less access to telecommunications services than any other segment
of the population.” Report and Order and Further Notice of Rulemaking 5,
Extending Wireless Telecommc’ns Servs. to Tribal Lands, 15 FCC Rcd 11794,

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11798 (2000) (No. 99-266). Approximately 98% of the households in the United
States presently have basic telephone service. Notice of Inquiry at ¶ 1, In re
Improving Commc’ns Servs. for Native Nations, 26 FCC Rcd. 2672, 2673-2674
(2011) (No. 11-41) (“Native Nations Notice”). On Tribal lands, however, barely
67% of households have basic telephone service. See id. (citation omitted). This
enormous disparity led former FCC Commissioner Michael Copps to conclude that
“[e]ven plain old telephone service—which so many in this country take for
granted—is at shockingly low levels of penetration” on Tribal lands. Michael J.
Copps, Commissioner, Remarks to the National Congress of American Indians 2
(Nov. 17, 2010), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/
DOC-302854A1.pdf. The principal barriers to improved telecommunications
services on Tribal lands are “[t]he rural location and rugged terrain of most tribal
lands and tribes’ limited financial resources.” GAO, TELECOMMUNICATIONS:
CHALLENGES TO ASSESSING AND IMPROVING TELECOMMUNICATIONS FOR NATIVE
AMERICANS ON TRIBAL
LANDS
33
(2006),
available at
http://www.gao.gov/new.items/d06189.pdf.
The divide between Tribal lands and the rest of the country over access to
broadband is even sharper. As the FCC has found, 65% of Americans living off
Tribal lands—but less than 10% of residents on Tribal lands—have access to
broadband in their homes. Broadband Plan at *147. As the FCC has further

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found, “[m]any Tribal communities face significant obstacles to the deployment of
broadband infrastructure,” and “[c]urrent funding programs *** are insufficient to
address all of these challenges.” Id. at *142. Accordingly, “[t]ribes need
substantially greater financial support than is presently available to them, and
accelerating Tribal broadband deployment will require increased funding.” Id.

C.

Relevant Procedural History

1.

The FCC Raised Tribal Communications Services Issues In
Its Notices Regarding the Universal Service Fund

In its three notices of proposed rulemaking regarding possible cuts to the
USF, the FCC asked whether, consistent with its conclusion in the Broadband Plan,
funding for carriers serving Tribal lands should be increased, rather than decreased,
in recognition of the need to rectify the vastly inferior service on Tribal lands. As
evidenced below, the comments that the FCC received on this issue were in
accord: financial assistance to support service on Tribal lands should be enhanced,
not diminished.
In its first Notice of Inquiry in April 2010, the FCC sought comment on
ways to stop or limit growth of the high-cost USF program generally, but also
asked whether “there are any unique circumstances in Tribal lands that would
necessitate a different approach.” See Notice of Inquiry and Notice of Proposed
Rulemaking at ¶ 50, In re Connect America Fund, 25 FCC Rcd. 6657, 6677 (2010)
(No. 10-90). In response, the National Congress of American Indians and Native

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Public Media stated that “critical infrastructures have not historically been
deployed” on Tribal lands and that conditions on Tribal lands “require[] special
economic regulatory creativity.” Joint Comments of Native Pub. Media and the
Nat’l Congress of American Indians 5 (Jul. 12, 2010). Those entities later
submitted reply comments in which they advised that, until access to
communications services on Tribal lands improves, “the Commission must do
nothing to cut back support for [the high-cost and low-income] programs.” Joint
Reply Comments 3 (Aug. 11, 2010).
The FCC issued a second notice regarding the USF in March 2011, in which
it once again cited to the Broadband Plan’s conclusion “that Tribes need
substantially greater financial support than is presently available to them, and
accelerating Tribal broadband will require increased funding.” Second Notice, 26
FCC Rcd. at 4654. In keeping with the conclusion of the Broadband Plan, the FCC
asked whether, as a result of the need for greater financial support for carriers
serving Tribal lands, it should treat carriers serving Tribal lands differently, and
sought comment on a variety of proposals to do so. Id. at 4627 (whether to exempt
rate-of-return carriers serving Tribal lands from a cap on the amount of high-cost
support per subscriber line); 4638-4639 (whether to exempt competitive carriers
serving Tribal lands from a proposal to eliminate high-cost support for such
carriers); 4653 (whether to reserve funds for carriers seeking to provide broadband

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to unserved Tribal lands); 4702 (whether to provide additional support to carriers
serving Tribal lands to offset lost ICC revenues).
The comments the FCC received on the issue, including comments from
Gila River, uniformly stressed that “Tribal lands need substantially more financial
support for broadband infrastructure and services.” Gila River Comments 4 (Apr.
18, 2011); see Comments of the Nat’l Tribal Telecomms. Assoc. 32 (Apr. 18,
2011) (additional funding is needed “for a variety of platforms and activities
essential for delivering and adapting broadband” on Tribal lands); Comments of
the Native Telecom Coalition for Broadband 7-9 (Apr. 18, 2011) (stating that
“universal service programs must be maintained at existing levels to benefit Native
America communications” and recommending that an additional support
mechanism be created to provide additional support to carriers on Tribal lands);
see also Comments of Alaska Commc’ns Sys. Grp., Inc. 13 (Apr. 18, 2011)
(same); Comments of the American Cable Ass’n 19 (Apr. 18, 2011) (same);
Comments of MTPCS, LLC D/B/A Cellular One 3 (Apr. 18, 2011) (same);
Comments of Nat’l Cable & Telecommunications Ass’n n.20 (Apr. 18, 2011)
(same); Comments of the Shoshone-Bannock Tribes 1 (Apr. 8, 2011) (same);
Comments of TCA 12-13 (Apr. 18, 2011) (same).
In August 2011, the FCC for the third time issued a USF notice, seeking
comments on, among other things, a proposal to freeze high-cost support at 2011

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levels for all carriers serving Tribal lands. Public Notice at Sec. I.G., Further
Inquiry Into Certain Issues in the Universal Serv.-Intercarrier Compensation
Transformation Proceeding, 26 FCC Rcd. 11112, 11120 (2011) (Nos. 10-90, 07-
135, 05-337, 03-109). Once again, the responses the FCC received, including from
Gila River, uniformly advocated for an increase, not a freeze, on high-cost support
for carriers serving Tribal lands. See Gila River Comments 15 (Aug. 24, 2011)
(recommending the FCC establish minimum high-cost support levels for carriers
serving Tribal lands that are equal to such carriers’ 2011 high-cost program and
ICC combined revenues); Reply Comments of Smith Bagley, Inc., 2 (Sept. 6,
2011) (“Commenters with tribal interests general agree that *** [the unique]
factors [facing Tribal lands] warrant the exclusion of tribal areas from phase-outs
and other proposed USF reform measures that would reduce existing support
levels.”); see also Comments of Alexicon Telecomms. Consulting 9 (Aug. 24,
2011) (same); Comments of Moss Adams LLP, 11 (Aug. 24, 2011) (same).
2.

The Order’s Decision To Group Carriers Serving Tribal
Lands With All Other Carriers Despite Differing Needs

The FCC’s final Order specifically found that there is a “deep digital divide
that persists between the Native Nations of the United States and the rest of the
country,” such that “‘[b]y virtually any measure, communities on Tribal lands have
historically had less access to telecommunications services than any other segment
of the population.’” Order ¶ 636 & n.1048 (citation omitted). The Order noted

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that this divide is not confined to broadband, because “[m]any residents of Tribal
lands lack not only broadband access, but even basic telephone service.” Id. ¶ 636.
The Order identified the root causes of the disparities. First, the Order
recognized that Tribal lands typically are in “remote and underserved areas,” Order
¶ 28, with “significant telecommunications deployment and connectivity
challenges,” id. ¶ 481. Second, the Order observed that these “characteristics of
Tribal lands may increase the cost of entry and reduce the profitability of providing
service, including,” among other things, “[t]he lack of basic infrastructure in many
tribal communities” and “a high concentration of low-income individuals with few
business subscribers.” Id. ¶ 482 (internal quotations and citation omitted). And
harkening back to the conclusions in the FCC’s Broadband Plan, the Order
repeated the refrain that “greater financial support *** may be needed in order to
ensure the availability of broadband in Tribal lands,” Order ¶ 479, that is
“reasonably comparable to those services provided in urban areas,” 47 U.S.C. §
254(b)(3).
The Order nevertheless promulgated new Fund rules that dramatically scaled
back high-cost support for many carriers serving rural areas. With one minor
exception, carriers serving Tribal lands were not exempted from these new rules.

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In option for a uniform approach, the FCC made no reference to its own findings
of the distinctive needs of such carriers.2
Under the Order, rate-of-return carriers, which, as indicated above (at supra,
B.1), typically are small landline carriers, like Gila River, that serve rural and
Tribal areas, face funding caps in the Order or the elimination of many of the
components that make up the high-cost support program for rate-of-return carriers.
See Uncited Joint Preliminary Brief of the Petitioners 26-33 (Sept. 24, 2012)
(summarizing changes to the high-cost support rules for rate-of-return carriers).
The Order estimates that more than 66% of such carriers will see reductions in
high-cost support as a result of these new rules. Order ¶ 290. Gila River, for its
part, estimates that it will receive between $300,000 and $1.6 million less annually
in high-cost support than it did in 2011. In addition, like many rate-of-return
carriers, Gila River will lose hundreds of thousands of dollars in intercarrier
compensation revenues. See Gila River Comments (July 1, 2011) (confidential
data redacted). At the same time, Gila River and other rate-of-return carriers are
now required for the first time under the rules to provide broadband service to
subscribers. Order ¶ 206. In short, the Order requires Gila River and most rate-of-

2 Standing Rock Telecommunications was granted a two-year exemption
from the new rules phasing out high cost support for competitive carriers. See
infra
Part II.D.

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return carriers serving Tribal lands to provide the same level of voice service and
to provide new broadband service, but with deeply reduced funding.
By contrast, under the Order, price-cap carriers, which, as indicated above
(at supra, B.1) are typically larger landline carriers, will receive annual support
equal to their 2011 high-cost support amounts. Order ¶ 22. While price-cap
carriers that “accept[] [this] support will be required to deploy broadband to a
number of locations” within that carrier’s service area, they are eligible to receive
an additional $300 million of new funding to promote broadband deployment. Id.
¶¶ 25, 138.
That is not all. The Order also eliminates an existing support mechanism for
competitive carriers known as the identical support rule, which provided
competitive carriers with the same amount of high-cost support per line as an
incumbent landline carrier received per line in the service area. Order ¶ 29. In
place of the identical support rule, the Order creates a Mobility Fund, eligible only
to wireless carriers, to support mobile broadband networks. Phase I of the
Mobility Fund, scheduled for 2012-2013, provides a one-time infusion of $300
million for the expansion of mobile services in unserved areas, Order ¶ 314, and an
additional $50 million for expansion of mobile services to unserved Tribal lands.
Id. ¶ 481. Phase II, which is not currently scheduled, will provide $500 million per
year for ongoing support of mobile broadband services, with up to $100 million of

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this amount reserved to support services on Tribal lands. Id. ¶¶ 493-494. These
support levels, $50 million in Phase I and then up to $100 million annually
thereafter, most likely represent significantly less funding than wireless carriers
serving Tribal lands previously received on an annual basis under the old rules.
See id. ¶ 525 (support provided to competitive carriers serving Tribal lands was
approximately $150 million in yearly funding in 2011).

SUMMARY OF ARGUMENT


The goal of universal communications service, codified in Section 254 of the
1996 Act, remains a pipedream on Tribal lands. As the FCC itself found based on
the substantial record evidence before it, communications service on Tribal lands,
from the most basic telephone service to more complex broadband service, is
especially poor, and carriers providing service on Tribal lands face unique and
substantial barriers. In light of that evidence, the FCC acknowledged in the Order
that increased USF support for such carriers was warranted. And yet, the Order
ultimately subjected those carriers to the same basic set of undifferentiated USF
rules that the FCC is imposing on other carriers and that mandate significant
decreases in USF support. The Order is arbitrary and capricious because it offered
no explanation at all (and there is none) for the stark incongruence between the
evidence about the deplorable communications conditions on Tribal lands and the

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FCC’s decision to perpetuate those conditions through draconian USF cuts to the
carriers serving those lands.

This Court’s precedents in Qwest I and Qwest II require the FCC to balance
the multiple Section 254 universal service factors in formulating policies that seek
to meet the goal of universal service. The Order is dead silent, however, as to how
the FCC balanced those factors when concluding that its essentially one-size-fits-
all approach furthers the goal of universal service on Tribal lands.

The Order’s continuation of current USF support levels for price-cap carriers
underscores the irrationality of the FCC’s actions as they pertain to Tribal lands.
Tribal lands are served primarily by rate-of-return carriers, whose USF support
levels are greatly diminished by the Order. But there is simply no evidence that
communications service on Tribal lands served by price-cap carriers is worse than
communications service on Tribal lands served by rate-of-return carriers.

The financial strait-jacket placed on rate-of-return carriers serving Tribal
lands is all the more suffocating because the Order demands that those carriers
offer new and costly broadband service, albeit now with much less USF support.
The Order proclaims that its reduction in USF support will eliminate purported
inefficiencies and waste. But as the Order itself recognizes, inefficiencies and
waste are not the primary obstacles to universal service on Tribal lands. And in
any event, combining massive funding cuts with significant new service

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obligations is hardly the way to tackle any waste and inefficiencies that may be
handicapping rate-of-return carriers that serve Tribal lands.

The Order’s creation of a new Tribal Mobility Fund is woefully insufficient
and does not make a real dent in the shortfall wrought by the Order. The Tribal
Mobility Fund is limited to competitive wireless carriers and thus is off-limits to
the vast majority of rate-of-return carriers because they provide landline service.
And even as to competitive wireless carriers, the Tribal Mobility Fund pales in
comparison to existing support mechanisms.

Finally, the Order’s grant of a temporary exemption to one competitive
Tribally owned landline carrier from the phase-out of high-cost support applicable
to all other competitive landline carriers again highlights the disconnect between
the evidence before the FCC and its actions. The factual considerations on which
the FCC based its decision to grant the exemption to that single Tribally owned
carrier apply full well to virtually all other Tribally owned carriers, be they
competitive carriers or rate-of-return carriers. It is the touchstone of arbitrary and
capricious rulemaking for an agency to treat similarly situated parties in a highly
different manner.

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ARGUMENT

I.

STANDARD OF REVIEW

Judicial review of agency action must “ascertain whether the agency
examined the relevant data and articulated a rational connection between the facts
found and the decision made.” Cliffs Synfuel Corp. v. Norton, 291 F.3d 1250,
1257 (10th Cir. 2002). While a court should defer to an agency’s reasonable
interpretation of a statute it administers and not substitute its judgment for that of
the agency, Chevron, USA v. NRDC, 467 U.S. 837, 842-843 (1984), agency action
will be overturned as arbitrary and capricious “if the agency has relied on factors
which Congress has not intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible that it could not be
ascribed to a difference in view or the product of agency expertise,” Ecology Ctr.,
Inc. v. U.S. Forest Serv., 451 F.3d 1183, 1189 (10th Cir. 2006) (internal quotation
and citation omitted). An agency also acts arbitrarily and capriciously if it neither
“‘engage[s] the arguments raised before it,’” NorAm Gas Transmission Co. v.
FERC, 148 F.3d 1158, 1165 (D.C. Cir. 1998) (citation omitted), nor “explain[s]
why it rejected evidence that is contrary to its findings,” Carpenters and
Millwrights v. NLRB, 481 F.3d 804, 809 (D.C. Cir. 2007) (citation omitted).

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II.

THE ORDER’S APPLICATION OF SECTION 254’S UNIVERSAL
SERVICE PRINCIPLES IS ARBITRARY AND CAPRICIOUS
BECAUSE THERE IS NO RATIONAL CONNECTION BETWEEN
THE FCC’S FINDINGS REGARDING THE DISMAL STATE OF
COMMUNICATIONS SERVICES ON TRIBAL LANDS AND ITS
SUBJECTION OF TRIBAL CARRIERS TO RULES RESULTING IN
FUNDING CUTS

Section 254 of the 1996 Act requires the FCC to “base policies for the
preservation and advancement of universal service” on a set of statutorily
prescribed principles. 47 U.S.C. § 254(b). As relevant here, those principles
include: “Quality services should be available at just, reasonable, and affordable
rates,” id. § 254(b)(1); “Access to advanced telecommunications and information
services should be provided in all regions of the Nation[,]” id. § 254(b)(2); and
consumers nationwide, “including low-income consumers and those in rural,
insular, and high cost areas,” should enjoy services that are “reasonably
comparable” to the services available in urban areas, at “reasonably comparable”
rates, id. § 254(b)(3). Congress also requires the FCC to ensure that the financial
support the FCC and States provide to carriers is “specific, predictable and
sufficient *** to preserve and advance universal service.” Id. § 254(b)(5); see also
§ 254(e) (requiring that financial support FCC provides must be “sufficient to
achieve” universal service goal).
Twice before, this Court overturned prior universal service orders after
concluding that the FCC had failed “to provide sufficient reasoning or record

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evidence to support [their] reasonableness” when measured against Section
254(b)’s universal service principles. Qwest I, 258 F.3d at 1195; see also Qwest II,
398 F.3d at 1234. The Fund rules adopted in the FCC Order here are equally
deficient and necessitate the same judicial intervention. The evidence before the
FCC showed conclusively that the state of communications services on Tribal
lands remains dire. Indeed, the FCC’s Order made specific findings about the
dismal state of communications services on Tribal lands, how far they lag behind
Congress’s universal service goal, and the need for increased funding to bring
services on Tribal lands up to par with other areas and congressional intent. In
fact, the FCC’s findings mirrored its conclusion just a few years earlier that
“Tribes need substantially greater financial support than is presently available to
them[.]” Broadband Plan at *142.
The FCC’s Order, however, ignored the very problem it said needed to be
fixed. Instead, the Order subjects rate-of-return carriers serving Tribal lands to the
same Fund rules that the FCC imposed on rate-of-return carriers serving non-Tribal
lands. These rule changes result in reduced support to more than 66% of rate-of-
return carriers. Order ¶ 290. Still worse, the Order directed all of these carriers to
expand broadband services, leaving these carriers with even fewer resources to put
into meeting the telecommunications needs of Tribal residents, and compounding
the impairment of universal service prospects on Tribal lands. Nowhere in its

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Order does the FCC “‘articulate[] a rational connection between the facts found
and the decision made.’” Cliffs Synfuel, 291 F.3d at 1257 (citation omitted).
Instead, the Order simply ignored the problems that the Order itself had identified,
and thereby tied itself to new universal service policies “that run[] counter to the
evidence before [it].” Ecology Center, 451 F.3d at 1189.

A.

The FCC Offered No Explanation For Its Failure To Correlate
Funding To Need Or To Advancement Of Congress’s Universal
Service Goal

While the FCC proclaims in the Order that it balanced the Section 254(b)
principles in arriving at the conclusion that uniform application of rate-of-return
rules is consistent with the goal of universal service and will “eliminate waste and
inefficiency,” Order ¶¶ 194-195, its actions do not match its words. In particular,
the Order leaves the public in the dark, with no explanation for how its quest for
efficiency advances Congress’s command of universal access to advanced
telecommunications and information services in all regions of the country (Section
254(b)(2)), including Tribal lands, and that consumers in all regions of the country,
including Tribal lands, should have access to telecommunications and information
services that are reasonably comparable to services provided in urban areas
(Section 254(b)(3)).
To be sure, there may be instances in which some of the Section 254(b)
principles will conflict with one another, requiring the FCC to balance as best as

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possible its accomplishment of congressional goals. Qwest II, 398 F.3d at 1234.
But the FCC is not entitled to carte blanche when attempting to strike that balance.
Rather, an FCC universal service order issued under Section 254(b) will be
overturned if “the FCC *** [fails] to demonstrate that its balancing calculus t[ook]
into account the full range of principles Congress dictated to guide the
Commission in its actions.” Id. In short, agency say-so is no substitute for
reasoned explanation. The FCC’s failure to articulate how it balanced the Section
254(b) principles as they pertain to rate-of-return carriers serving Tribal lands,
despite specific comments directed to the problem and its own repeated
acknowledgment of the special issues facing such lands, renders the Order
arbitrary and capricious with respect to such carriers. See Ecology Ctr., 451 F.3d
at 1189 (agency action is arbitrary and capricious if agency “entirely failed to
consider an important aspect of the problem [or] offered an explanation for its
decision that runs counter to the evidence before the agency”) (citation omitted).

B.

The One-Size-Fits-All Treatment Of Rate-Of-Return Carriers
Contravenes The FCC’s Own Findings And Substantial Record
Evidence Establishing The Need For Increased Funding On
Tribal Lands

Even if it had tried, it is doubtful that the FCC could rationally have
explained its undifferentiated and wooden treatment of rate-of-return carriers on
Tribal lands given the Order’s multiple, simultaneous findings concerning the
distinct need for increased funding and support for services on Tribal lands. But

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this case is even easier because the FCC made no effort to explain itself. The
Procrustean goal of uniformity for its own sake defeats rather than promotes
congressional intent.
Here is what the FCC itself said in the Order on the subject of
communications services on Tribal lands: The FCC deplored the “relatively low
level of telecommunications deployment on Tribal lands and the distinct
challenges in bringing connectivity to these areas.” Order ¶ 479. The FCC
expressed concern that persons living in “Tribal lands have historically had less
access to telecommunications services than any other segment of the population.”
Id. The FCC also observed that “[m]any residents of Tribal lands lack not only
broadband access, but even basic telephone service.” Id. ¶ 636. And precisely
because of these lingering poor conditions on Tribal lands, the FCC concluded that
“greater financial support therefore may be needed in order to ensure the
availability of broadband in Tribal lands.” Id. ¶ 479. Those are the FCC’s own
words and findings.
None of this was a revelation to the FCC. In its 2010 Broadband Plan, the
FCC acknowledged the same dismal facts about the state of communications
conditions on Tribal lands and the need for increased funding to correct that
problem. In particular, “[c]urrent funding programs *** are insufficient to address
all of [the] challenges ***” faced by Tribal communities, “including high build-out

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costs, limited financial resources that deter investment by commercial providers
and a shortage of technically trained members who can undertake deployment and
adoption planning.” 2010 WL 972375, at *142. The FCC therefore advocated
“greater financial support [for tribes] than is presently available to them,” and
admonished that “accelerating Tribal broadband deployment will require increased
funding.” Id.
The FCC did not stop there. Later in 2010 and again in 2011, the FCC
reaffirmed the conclusion that “substantially greater financial support” is
“need[ed]” than “is presently available to [Tribes], and accelerating Tribal
broadband will require increased funding.” Notice of Proposed Rulemaking ¶ 33,
In re Universal Serv. Reform Mobility Fund, 25 FCC Rcd. 14716, 14728 (2010)
(No. 10-208); Native Nations Notice ¶ 9, at 2678 (“[T]he National Broadband Plan
states that Native Nations need substantially greater financial support than is
presently available through existing federal programs to accelerate broadband
deployment on Tribal lands.”).
In the new Fund rules set forth in the Order, however, the FCC turned its
back on its own findings and its own evidence. The FCC simply ignored what it
had said about the need for greater funding for carriers serving Tribal lands in the
Broadband Plan, in the subsequent reaffirmation of that position in 2010, in yet
another reaffirmation in 2011, and in the Order itself. The nearly universal

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cutbacks in support for rate-of-return carriers simply cannot be squared with the
evidentiary record that the FCC itself made documenting quite powerfully that
Tribal carriers are in an entirely different situation from other carriers. It is
arbitrary and capricious for the FCC to treat apples as oranges—to treat as the
same that which the FCC and the overwhelming record evidence have specifically
recognized are different.3
Finally, the FCC’s treatment of price-cap carriers does not cure its failure to
address the needs on Tribal lands served by rate-of-return carriers. Importantly,
nowhere did the FCC conclude that Tribal lands served by price-cap carriers were
worse served than Tribal lands served by rate-of-return carriers. Consequently, the
Commission’s decision to maintain the annual support of price-cap carriers,
including those serving Tribal lands, at 2011 levels, while also making these same
carriers (but not rate-of-return carriers) eligible for up to an additional $300 million
of new funding to promote broadband deployment, is arbitrary and capricious. At
minimum, all carriers serving Tribal lands should have had existing support levels
guaranteed at 2011 levels.

3 The Order’s regression methodology, which is based on an evolving and
uncertain set of variables, does not cure the FCC’s failure to address the needs of
carriers serving Tribal lands because it fails to ensure that their unique
circumstances will be considered. Instead, it delegates the function of choosing the
relevant regression variables to the Wireline Competition Bureau, Order ¶ 217,
whose ultimate methodology will not even be subject to APA procedures, see U.S.
Telecom Ass’n v. FCC,
400 F.3d 29, 34 (D.C. Cir. 2005). See generally Uncited
Joint Universal Service Fund Principal Brief, at II.D.

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Moreover, it is unclear whether the support for price-cap carriers will be
used to make any meaningful impact on the state of communications services on
Tribal lands. In order to obtain such additional funding, price-cap carriers had to
agree to a full broadband deployment obligation. Order ¶ 147. However, because
of lack of interest among price-cap carriers in deploying broadband to high-cost,
unserved areas, only $115 million of the available $300 million was claimed. See
Press Release, FCC, FCC Kicks-Off ‘Connect America Fund’ With Major
Announcement, Public Notice (July 25, 2012). Some of the largest price-cap
carriers, including Verizon and AT&T, declined to accept this funding and the
attendant deployment obligations. In addition, even for those few price-cap
carriers that did accept funding, it is unclear how much of the support will go
towards Tribal lands in light of the high costs of deploying infrastructure on such
lands. For example, Alaska Communications Systems Group, Inc., a price-cap
carrier serving Tribal lands that accepted the additional funding and took on
broadband deployment obligations, recently petitioned the FCC for a waiver of the
broadband build-out obligations because of the “high costs of deployment” and the
lack of a business case for broadband in the proposed service area. Alaska
Commc’ns Sys. Grp., Inc.’s Pet. for Waiver at i (Sept. 26, 2012).

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C.

The FCC Failed to Articulate How Its One-Size-Fits-All
Approach to Rate-of-Return Carriers Will Provide Sufficient
Support to Carriers Serving Tribal Lands To Enable Them To
Fulfill New Obligations Imposed By The Order


At the same time it financially hobbled rate-of-return carriers serving Tribal
lands, the FCC increased their load, imposing new and expensive broadband
obligations on them. Put another way, the Order irrationally mandates that rate-
of-return carriers serving Tribal lands do vastly more while depriving them of the
funding needed just to break even. That is not “efficiency,” Order ¶ 194; that is
blinking reality. And it confounds the fundamental purpose of Section 254.
The Order devotes chapter and verse to its argument that the new Fund rules
will prevent excessive support and therefore—the FCC assumes—necessarily will
provide sufficient support. Order ¶ 194 n.315. But a rational Section 254 analysis
also must account for whether too little support is being provided. See Alenco
Commc’ns, Inc. v FCC, 201 F.3d 608, 620 (5th Cir. 2000). The statute requires “a
reasonable balance between the Commission’s mandate to ensure sufficient
support for universal service and the need to combat wasteful spending.” Id.
(emphasis added). Here, the FCC put all its weight on the latter half of that
equation, leaving support for universal service on Tribal lands served by rate-of-
return carriers out of the equation altogether.
In particular, the Order is devoid of any rational explanation of how its rules
resulting in draconian cuts combined with increased burdens will preserve and

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enhance communications services on Tribal lands served by rate-of-return carriers.
The Order claims that reductions in support will universally “root[] out
inefficiencies,” Order ¶ 289, which sounds fine in the abstract, but simply ignores
the FCC’s own-acknowledged realities confronting Tribal lands. The Order also
basically disregards the substantial additional costs of complying with the new
obligation that, to receive Fund support, rate-of-return carriers serving Tribal lands
must provide minimum broadband capability of 4 Mbps down and 1 Mbps up (e.g.,
Order ¶ 206). Because the Order itself recognizes that the problems with universal
service on Tribal lands are caused by a multitude of factors that have nothing to do
with inefficiency or waste, see, e.g., Order ¶¶ 28, 481-482, the tagteam of cuts and
increased burdens bear no logical correlation, much less direct relationship, to the
root causes of inadequate service on Tribal lands. The Order’s proposed cure does
not fit the Order’s diagnosed disease.4
The Order’s creation of a Tribal Mobility Fund for competitive wireless
carriers does not cure the sufficiency defect. In fact, the Order likely will result in

4 Likewise, the Order’s “bill-and-keep” intercarrier compensation changes,
which will result in reduced funding for those carriers serving the most insular and
high-cost areas, will not cure any of the serious problems the Order recognizes,
either. During the proceeding below, Gila River submitted data demonstrating that
these changes will have an immediate, significant adverse impact on Tribal
revenues. See Gila River Comments (July 1, 2011) (confidential data redacted).
Nevertheless, the FCC declined to exempt carriers serving Tribal lands from the
new bill-and-keep regime. See Order ¶ 802 n.1506; see generally Uncited Joint
Intercarrier Compensation Principal Brief Sec. II.

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substantially less financial support for the provision of wireless services on Tribal
lands. Specifically, the Order eliminates an existing support mechanism for
competitive carriers known as the identical support rule, which provided these
carriers with the same per-line amount of high-cost support as the incumbent
landline carrier. Order ¶ 29. Competitive carriers serving Tribal lands received
approximately $150 million in 2011 in high-cost support as a result of the identical
support rule. The Order replaces the identical support rule with the Mobility Fund,
which will provide support for competitive carries providing wireless services.
But the Mobility Fund is an insufficient replacement for the identical support
rule. Phase I of the Mobility Fund provides a one-time infusion of $300 million
for the expansion of mobile services, Order ¶ 314, but only an additional $50
million for expansion of mobile services to unserved Tribal lands. Id. ¶ 481.
Phase II of the Mobility Fund provides $500 million per year for ongoing support
of mobile services, with “up to $100 million” of this amount reserved to support
services on Tribal lands. Id. ¶¶ 493-494.5 In short, while the Mobility Funds give

5 Because the amount awarded under Phase II of the Mobility Fund is “up to
$100 million,” and because the Order does not explain how this support will be
awarded, competitive carriers serving Tribal lands may receive far less than the full
$100 million per year in support. Order ¶ 28.

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Tribal lands some support, the Order takes away far more support through the
elimination of the identical support rule.6

D.

The FCC’s Grant Of A Temporary Exemption To One Tribally
Owned But Not Any Other Tribally Owned Carriers Is Arbitrary
And Capricious

The Order generally requires a five-year funding phase-out of all high-cost
support that competitive carriers receive under the identical support rule. The sole
competitive
carrier exempt
from the phase-out is Standing Rock
Telecommunications, a Tribally owned competitive carrier, which was granted a
two-year freeze at current funding levels. Order ¶ 530. The FCC’s stated reasons
for sparing Standing Rock (at least temporarily) from the financial chopping block
included the following considerations:
• “Tribally-owned [carriers] play a vital role in serving their
communities, often in remote, low-income, and unserved and
underserved regions”;

• “[A] tailored approach” was appropriate “because of the unique
federal trust relationship we share with federally recognized Tribes,”
such that “the federal government [must] adhere to certain fiduciary
standards in its dealings with Tribes”;

• The government has “a longstanding policy of promoting Tribal self-
sufficiency and economic development”;

6 The fact that adversely affected carriers can seek a waiver, Order ¶ 293,
does not mean that they will receive “sufficient” support. In any event, a waiver
cannot paper over an otherwise unreasonable rule. See, e.g., Home Box Office, Inc.
v. FCC
, 567 F.2d 9, 50-51 (D.C. Cir. 1977) (holding that “the rules must be
assessed without reference to the waiver provisions,” which were “[m]anifestly”
inadequate to cure rules’ problems).

33

Appellate Case: 11-9900 Document: 01018937588 Date Filed: 10/23/2012 Page: 43


• “As an independent agency of the federal government, ‘the
Commission recognizes its own general trust relationship with, and
responsibility to, federally recognized Tribes’”; and

• “[T]he Commission has previously taken actions to aid Tribally-
owned companies, which are entities of their Tribal governments and
instruments of Tribal self-determination.”

Order ¶ 530; see also id. n.885.
The rub for the FCC is that these considerations apply equally to Gila River
and the other Tribally owned carriers (all of which are rate-of-return carriers), not
just to Standing Rock. Indeed, Gila River and the National Tribal
Telecommunications Association cited the very same considerations in advocating
increased funding for Tribally owned carriers. See Gila River Comments 2 (Apr.
18, 2011) (advocating for additional support “to ensure the financial viability of
tribally-owned telecommunications serving Tribal lands”); Comments of National
Tribal Telecomms. Assoc. 3 (Apr. 18, 2012) (“Because of their unique status,
Tribally-owned [carriers] should be protected from cuts to high-cost support to
enable [these carriers] to continue to provide essential broadband service to their
communities.”).
The FCC offered no credible explanation for its refusal to extend the
temporary exemption to other Tribal carriers, aside from Standing Rock. The very
essence of arbitrariness and capriciousness is the erratic and profoundly disparate
treatment of identically situated entities without any reasoned explanation. See

34

Appellate Case: 11-9900 Document: 01018937588 Date Filed: 10/23/2012 Page: 44

Carpenters and Millwrights, 481 F.3d at 809 (agency acts arbitrarily when it fails
to “explain why it rejected evidence that is contrary to its findings”).

CONCLUSION

For the foregoing reasons, and for the reasons set forth in the Uncited Joint
Universal Service Fund Principal Brief and the Uncited Joint Intercarrier
Compensation Principal Brief, this Court should set aside the Order and remand to
the FCC.
Respectfully submitted,
Dated: October 23, 2012

AKIN GUMP STRAUSS HAUER &

FELD LLP



By /s/ Patricia A. Millett

Patricia A. Millett
1333 New Hampshire Ave., N.W.
Washington, DC 20036
Telephone: 202-887-4000
pmillett@akingump.com

Michael Small
James E. Tysse
Sean Conway
John Capehart

Attorneys for Petitioners Gila River Indian
Community and Gila River
Telecommunications, Inc.



35

Appellate Case: 11-9900 Document: 01018937588 Date Filed: 10/23/2012 Page: 45

CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a) AND

COURT BRIEFING ORDERS


Certificate of Compliance With Type-Volume Limitation,
Typeface Requirements, and Type Style Requirements

1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) and the Court’s Amended First and Second Briefing Orders because:

this brief contains 7,901 words, excluding the parts of the brief
exempted from the word count by Fed. R. App. P. 32(a)(7)(B)(iii),
and the Court’s Amended First and Second Briefing Orders.

2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
and this Court’s Amended First and Second Briefing Orders, as well as the type
style requirements of Fed. R. App. P. 32(a)(6) because:

this brief has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 in 14-point Times New Roman font.



Dated: October 23, 2012

AKIN GUMP STRAUSS HAUER &

FELD LLP



By /s/ Sean Conway

Sean Conway
1333 New Hampshire Ave., N.W.
Washington, DC 20036
Telephone: 202-887-4000
sconway@akingump.com

Attorney for Petitioners Gila River Indian
Community and Gila River
Telecommunications, Inc.





Appellate Case: 11-9900 Document: 01018937588 Date Filed: 10/23/2012 Page: 46

CERTIFICATE OF DIGITAL SUBMISSION


I hereby certify that with respect to the foregoing:
(1) all required privacy redactions have been made per 10th Cir. R.
25.5;
(2) if required to file additional hard copies, that the ECF submission
is an exact copy of those documents;
(3) the digital submission has been scanned for viruses with the
most recent version of a commercial virus scanning program,
Symantec Endpoint Protection version 11.0.5002.333 last updated
October 22, 2012, and according to the program is free of viruses.


Dated: October 23, 2012

AKIN GUMP STRAUSS HAUER &

FELD LLP



By /s/ Sean Conway

Sean Conway
1333 New Hampshire Ave., N.W.
Washington, DC 20036
Telephone: 202-887-4000
sconway@akingump.com

Attorney for Petitioners Gila River Indian
Community and Gila River
Telecommunications, Inc.





Appellate Case: 11-9900 Document: 01018937588 Date Filed: 10/23/2012 Page: 47

CERTIFICATE OF SERVICE



I hereby certify that on October 23, 2012, and pursuant to the Court’s Order
Governing Procedures for the Electronic Filing of All Briefs in the Consolidated
Proceedings, I electronically filed the foregoing with the Court via e-mail to

FCC_briefs_only@ca10.uscourts.gov

, which will send notification of such filing
to all counsel who have entered appearances in the consolidated proceedings.



Dated: October 23, 2012

AKIN GUMP STRAUSS HAUER &

FELD LLP



By /s/ Sean Conway

Sean Conway
1333 New Hampshire Ave., N.W.
Washington, DC 20036
Telephone: 202-887-4000
sconway@akingump.com

Attorney for Petitioners Gila River Indian
Community and Gila River
Telecommunications, Inc.





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