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Voice on the Net Coal. Principal Brief - In Re: FCC 11-161 (10th Cir.)

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Released: October 31, 2012
Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 1
__________________________________________________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

______________

Case No. 11-9900

______________

IN RE: FCC 11-161

______________

ON PETITION FOR REVIEW OF AN ORDER OF THE

FEDERAL COMMUNICATIONS COMMISSION

______________

UNCITED VOICE ON THE NET COALITION, INC. PRINCIPAL BRIEF

(DEFERRED APPENDIX APPEAL)
______________

Donna N. Lampert
E. Ashton Johnston
Jennifer P. Bagg
LAMPERT, O’CONNOR & JOHNSTON, P.C.
1776 K Street NW, Suite 700
Washington, DC 20006
Tel: 202.887.6230
Glenn S. Richards
PILLSBURY WINTHROP SHAW PITTMAN LLP
2300 N Street NW
Washington, DC 20037-1122
Tel: 202.663.8215
Counsel for VON Coalition

October 23, 2012

__________________________________________________________________

Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 2

CORPORATE DISCLOSURE STATEMENT


The Voice on the Net Coalition, Inc. (“VON Coalition”) does not own or
maintain a controlling interest in any public company, nor is it owned or controlled
by any public company, and no publicly held company has a 10 percent or greater
ownership interest in the VON Coalition.


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TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ......................................................... i 
TABLE OF CONTENTS .......................................................................................... ii 
TABLE OF AUTHORITIES ................................................................................... iii 
GLOSSARY ............................................................................................................ vii 
STATEMENT OF RELATED CASES ................................................................. viii 
STATEMENT OF ISSUES PRESENTED ................................................................ 1 
STATEMENT OF THE FACTS ............................................................................... 2 
SUMMARY OF THE ARGUMENTS ...................................................................... 7 
ARGUMENT ............................................................................................................. 9 
I. 
THE FCC VIOLATED THE APA BY FAILING TO PROVIDE ADEQUATE
NOTICE OF THE NO-BLOCKING OBLIGATION. ............................................ 9 
II. 
THE FCC FAILED TO ENGAGE IN REASONED DECISION-MAKING IN
ADOPTING THE NO-BLOCKING OBLIGATION. ........................................... 13 
III. 
THE FCC EXCEEDED ITS STATUTORY AUTHORITY BY IMPOSING THE NO-
BLOCKING OBLIGATION ON INFORMATION SERVICES. ............................. 15 
CONCLUSION ........................................................................................................ 20 
CERTIFICATE OF COMPLIANCE ....................................................................... 21 
STATUTORY AND REGULATORY ADDENDUM ........................................... 22 
CERTIFICATION OF DIGITAL SUBMISSION ................................................... 32 
CERTIFICATE OF SERVICE ................................................................................ 33 


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TABLE OF AUTHORITIES


* Authorities upon which we chiefly rely are marked with asterisks.

CASES


*Am. Iron & Steel Inst. v. EPA,
568 F.2d 284 (3d Cir. 1977) ...................................................................... 9, 12, 14
*Am. Library Ass’n v. FCC,
406 F.3d 689 (D.C. Cir. 2005) ...................................................................... 16, 18
*Am. Petroleum Inst. v. EPA,
540 F.2d 1023 (10th Cir. 1976)...........................................................................13
Am. Radio Relay League, Inc. v. FCC,
524 F.3d 227 (D.C. Cir. 2008) ............................................................................. 10
*Beirne v. Sec’y of Dep’t of Agric.,
645 F.2d 862 (10th Cir. 1981) ............................................................................. 10
*Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc.,
467 U.S. 837 (1984) ............................................................................................. 15
*Comcast Corp. v. FCC,
600 F.3d 642 (D.C. Cir. 2010) ................................................................ 16, 17, 18
First Bancorporation v. Board of Governors of Fed. Reserve Sys.,
728 F.2d 434 (10th Cir. 1984) ............................................................................. 13
Greater Boston Television Corp. v. FCC,
444 F.2d 841 (D.C. Cir. 1970) ............................................................................. 15
*HRI, Inc. v. EPA,
198 F.3d 1224 (10th Cir. 2000) ........................................................................... 13
Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin.,
407 F.3d 1250 (D.C. Cir. 2005) ............................................................................. 9
Mission Grp. Kansas, Inc. v. Riley,
146 F.3d 775 (10th Cir. 1998) ............................................................................. 16
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*Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ............................................................................................... 13
Nat’l Ass’n. of Regulatory Util. Comm’rs v. FCC,
533 F.2d 601 (D.C. Cir. 1976) ............................................................................. 18
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967 (2005) ............................................................................................... 5
Nat’l Welfare Rights Org. v. Mathews,
533 F.2d 637 (D.C. Cir. 1976) ............................................................................. 14
*N. Am. Coal Corp. v. Dir., Office of WorkersComp. Programs, 854 F.2d 386
(10th Cir. 1988) ............................................................................................. 10, 12
*Olenhouse v. Commodity Credit Corp.,
42 F.3d 1560 (10th Cir. 1994) ............................................................................. 15
*Prometheus Radio Project v. FCC,
652 F.3d 431 (3d Cir. 2011) ................................................................ 9, 10, 11, 12
Qwest Corp. v. FCC,
689 F.3d 1214 (10th Cir. 2012) ........................................................................... 15
Qwest Corp. v. FCC,
258 F.3d 1191 (10th Cir. 2001)...........................................................................15
SEC v. Chenery Corp.,
332 U.S. 194 (1947) ............................................................................................. 13
Sorenson Commc’ns, Inc. v. FCC,
659 F.3d 1035 (10th Cir. 2011) ........................................................................... 13
*S. Ute Indian Tribe v. Amoco Prod. Co.,
119 F.3d 816 (10th Cir. 1997) ............................................................................. 15
Tribune Co. v. FCC,
2012 U.S. LEXIS 4894 (June 29, 2012) ................................................................ 9
U.S. v. Midwest Video Corp.,
406 U.S. 649 (1972) ............................................................................................. 16

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STATUTES AND RULES


5 U.S.C.
§ 551 et seq. ............................................................................................... vii, 1, 22
§ 551(4) ........................................................................................................... 9, 23
*§ 553
................................................................................................. 1, 7, 9, 20, 25
*§ 706 ......................................................................................... 1, 7, 10, 13, 20, 27
47 U.S.C.
§ 151 et seq. ..................................................................................................... vii, 1
§
153(24)
......................................................................................................... 5, 28
§
153(51)
......................................................................................................... 4, 28
§ 153(53)..........................................................................................................5, 28
§ 201....................................................................................................4, 11, 17, 29
§ 251(a) ................................................................................................... 17, 18, 30
47 C.F.R.
§ 9.3 ................................................................................................... vii, 1, 2, 3, 31

ADMINISTRATIVE MATERIALS


Federal Register
76 Fed. Reg. 11632 (Mar. 2, 2011) ...................................................................... 11
76 Fed. Reg. 49401 (Aug. 10, 2011) .................................................................... 11

*Connect America Fund,
26 FCC Rcd. 4554 (2011) ............................... vii, 2, 3, 11
*Connect America Fund, 26 FCC Rcd. 17663 (2011) ....... vii, 1, 4, 5, 11, 14, 17, 18
*Further Inquiry Into Certain Issues in the Universal Service-Intercarrier
Compensation Transformation Proceeding,
26 FCC Rcd. 11112 (WCB 2011) ............................................................ vii, 3, 11
IP-Enabled Services, 19 FCC Rcd. 4863 (2004) ....................................................... 2
Petition for Declaratory Ruling that AT&T's Phone-to-Phone IP Telephony
Services Are Exempt from Access Charges,
19 FCC Rcd. 7457 (2004)......................................................................................6

Petition for Declaratory Ruling that pulver.com’s Free World Dialup Is Neither
Telecommunications Nor a Telecommunications Service, 19 FCC Rcd. 3307
(2004) ..................................................................................................................... 6
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OTHER AUTHORITIES


Letter from Donna N. Lampert, Lampert, O’Connor & Johnston, P.C., on behalf of
Google Inc., Skype Communications S.A.R.L., Sprint Nextel Corporation,
and Vonage Holdings Corp., to Marlene H. Dortch, Secretary, FCC, WC Dkt.
10-90, et al. (filed Sept. 30, 2011), Hold the Phone (Charges), Attach. ...........2, 6


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GLOSSARY

Act:
Communications Act of 1934, as amended (47 U.S.C. § 151 et
seq
.).
APA: Administrative
Procedure Act (5 U.S.C. § 551 et seq.).
Commission
Federal Communications Commission
or FCC:


ICC: Intercarrier
Compensation.
IP: Internet
Protocol.
IVoIP:
Interconnected Voice over Internet Protocol, defined in 47
C.F.R. § 9.3.
No-Blocking
The obligation of IVoIP and one-way VoIP providers
Obligation:
to refrain from blocking telephone traffic, adopted in paragraph
974 of the Order.

NPRM:
The FCC’s February 2011 Notice of Proposed Rulemaking
initiating the proceeding that resulted in the Order. Connect
America Fund
, 26 FCC Rcd. 4554 (2011).

Order:
The FCC’s November 2011 Order (FCC 11-161) broadly
reforming the USF and ICC systems. Connect America Fund,
26 FCC Rcd. 17663 (2011).
Public Notice:
The FCC’s August 2011 Public Notice seeking additional
comment on specific proposals for reform of the USF and ICC
systems. Further Inquiry Into Certain Issues in the Universal
Service-Intercarrier Compensation Transformation
Proceeding
, 26 FCC Rcd. 11112 (2011).
PSTN: Public
Switched Telephone Network.
USF:
Federal Universal Service Fund, used to subsidize
telecommunications services (and, after the Order, broadband
Internet access) in underserved and high-cost markets.
VoIP:
Voice over Internet Protocol.

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STATEMENT OF RELATED CASES

There are no prior appeals of the Order at issue in this case. All related cases have
been consolidated with this case.
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STATEMENT OF ISSUES PRESENTED

(1)
The Federal Communications Commission (“FCC” or Commission”) failed
to provide prior notice to affected entities that the obligation imposed upon
providers of Interconnected Voice over Internet Protocol, 47 C.F.R. § 9.3
(“IVoIP”) and “one-way VoIP” (herein the “No-Blocking Obligation”)
adopted in paragraph 974 of the FCC’s November 2011 Order (FCC 11-
161), Connect America Fund, 26 FCC Rcd. 17663 (2011) (“Order”), was
under consideration, in violation of section 553(b) of the Administrative
Procedure Act (5 U.S.C. § 551 et seq.) (“APA”), 5 U.S.C. § 553(b).
(2)
The FCC failed to articulate a rational explanation grounded in record
evidence in adopting the No-Blocking Obligation, rendering its action
arbitrary, capricious, and an abuse of discretion within the meaning of the
APA, 5 U.S.C. § 706(2)(A).
(3)
The FCC exceeded its jurisdiction and authority under the Communications
Act of 1934, as amended (47 U.S.C. § 151 et seq.) (“Act”) by imposing the
No-Blocking Obligation.


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STATEMENT OF THE FACTS


The NPRM.

In February 2011, the FCC launched a proceeding to
modernize the federal universal service fund (“USF”) and the nation’s intercarrier
compensation (“ICC”) regime, as described in the Uncited Joint Preliminary Brief
of the Petitioners filed September 24, 2012, at 24-25 (“Petitioners’ Joint Brief”).
Connect America Fund, 26 FCC Rcd. 4554 (2011) (“NPRM”) (JA __). In the
NPRM, the FCC proposed to address for the first time the appropriate ICC system
for certain “Voice over Internet Protocol” (“VoIP”) services.1 NPRM ¶¶ 38, 608-
619 (JA __, __-__).
The NPRM proposed ICC rules to govern only a specific subset of VoIP
services, referred to as IVoIP, defined in the FCC’s rules as a service that “permits
users generally to receive calls that originate on the [PSTN] and to terminate calls

1 VoIP services generally include “any IP-enabled services offering real-time,
multidirectional voice functionality, including, but not limited to, services that
mimic traditional telephony.” IP-Enabled Services, 19 FCC Rcd. 4863, ¶3 & n. 7
(2004). The record shows that such services may include solely computer-to-
computer communications or services, such as voice chat features on gaming
consoles, mobile device software applications, and interactive web-based voice and
video conference systems, see, e.g., Letter from Donna N. Lampert, Lampert,
O’Connor & Johnston, P.C., on behalf of Google Inc., Skype Communications
S.A.R.L., Sprint Nextel Corporation, and Vonage Holdings Corp., to Marlene H.
Dortch, Secretary, FCC, WC Dkt. 10-90, et al. (Sept. 30, 2011), Hold the Phone
(Charges)
, Attach. at 5-6 (“VoIP White Paper”) (JA __-__), as well as services that
enable customers to make and receive voice communications over the Public
Switched Telephone Network (“PSTN”). See, e.g., 47 C.F.R. § 9.3 (definition of
IVoIP).
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to the [PSTN],” requires both a broadband connection from the user’s location and
Internet Protocol (“IP”)-compatible customer premises equipment (such as an IP-
compatible telephone handset), and enables real-time, two-way voice
communications. NPRM ¶ 612 (JA __); 47 C.F.R. § 9.3. The NPRM also sought
comment on whether the FCC’s call signaling rules, which require certain
information regarding a telephone call to be included in the call transmission path,
should extend to IVoIP. NPRM ¶¶ 620, 627 (JA __, __). The NPRM made no
reference to any type of VoIP other than IVoIP.

The Public Notice

. On August 3, 2011, the FCC issued a Public Notice
seeking further comment on its proposed USF and ICC reforms, including on
issues related to IVoIP ICC and call signaling. Further Inquiry Into Certain Issues
in the Universal Service-Intercarrier Compensation Transformation Proceeding,
26 FCC Rcd. 11112, 11128-11129 (2011) (“Public Notice”) (JA __-__). The
Public Notice also raised the issue of whether and how ICC and call signaling rules
should apply to “‘one-way’ interconnected VoIP services – in particular, to those
that allow users to terminate calls to the PSTN, but not receive calls from the
PSTN, or vice versa.” Id. n.57 (JA __). The term “one-way interconnected VoIP”
is not defined in the Act or any FCC rule and was not used in the NPRM.
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The VON Coalition and some of its individual members participated at all
stages of the FCC’s proceeding, providing the FCC with comments on the issues
raised in the NPRM and the Public Notice.

The Order and the No-Blocking Obligation.

In November 2011, the FCC
released the Order (JA __), which is described at pages 25-39 of the Petitioners’
Joint Brief. Among the many rules and obligations adopted in the Order was a
prohibition on blocking of VoIP calls by telecommunications carriers, which the
FCC held is an unjust and unreasonable practice in violation of section 201(b) of
the Act. See Order ¶ 973 (JA __); 47 U.S.C. 201(b); 47 U.S.C. § 153(51)
(definition of “telecommunications carrier”). The Order also imposed the No-
Blocking Obligation, prohibiting the blocking of calls by “interconnected VoIP
providers or by providers of ‘one-way’ VoIP service that allows customers to
receive calls from, or place calls to the PSTN, but not both.” Order ¶ 974 (JA __).
Similar to the term “one-way interconnected VoIP,” the term “one-way VoIP” is
not defined in the Act or in any FCC rule, and was not used in the NPRM, the
Public Notice, or elsewhere in the Order.
The Order hypothesized that blocking “could be performed” by IVoIP or
“one-way VoIP” providers, and speculated that such providers “could have
incentives” to engage in blocking. Id. (JA __). Concerning the FCC’s authority to
impose the No-Blocking prohibition, the Order stated that “[i]f IVoIP or one-way
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VoIP services are telecommunications services, they already are subject to
restrictions on blocking under the Act.” Id. (JA __). The Order further stated that
“[i]f such services are information services, we exercise our ancillary authority and
prohibit blocking of voice traffic to or from the PSTN by those providers just as we
do for [telecommunications] carriers.” Id. (JA __).

Statutory Framework.

The Act distinguishes between
“telecommunications services,” which are subject to mandatory common carriage
obligations set forth in Title II of the Act, and “information services,” which are
not subject to such obligations. See Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 975-77 (2005); 47 U.S.C. § 153(53) (definition of
“telecommunications service”); 47 U.S.C. § 153(24) (definition of “information
service”). See also Petitioners’ Joint Brief at 7-8. With respect to information
services, the FCC has authority to impose regulatory obligations only pursuant to
its limited “ancillary authority” under Title I of the Act. Brand X, 545 U.S. at 976.
The FCC consistently has declined (including in the Order) to classify VoIP
services uniformly as either “telecommunications services” or “information
services.” See Order ¶¶ 954, 974 & n.2042 (JA__, ___ & __). In recognition of
variations among specific services that include a VoIP component, however, the
FCC has reached different conclusions regarding the appropriate regulatory
classification of such services. Thus, the FCC has found one service with a VoIP
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component to be a “telecommunications service,” Petition for Declaratory Ruling
that AT&T’s Phone-to-Phone IP Telephony Services Are Exempt from Access
Charges, 19 FCC Rcd. 7457, ¶ 24 (2004), but found another to be an “information
service.” Petition for Declaratory Ruling that Pulver.com’s Free World Dialup Is
Neither Telecommunications Nor a Telecommunications Service, 19 FCC Rcd.
3307, ¶¶ 11-12 (2004) (JA __-__). Other VoIP services also are clearly
information services, see VoIP White Paper at 5 (JA __).


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SUMMARY OF THE ARGUMENTS

The No-Blocking Obligation as adopted in the Order is unlawful and should
be vacated on three separate grounds.
First, the FCC failed to provide prior notice that the No-Blocking Obligation
was under consideration, in violation of the APA, 5 U.S.C. § 553(b). The APA’s
notice requirement serves essential functions in the administrative rulemaking
process. Notice affords interested persons a fair opportunity to participate in the
rulemaking process through submission of written data, views, or arguments and
allows a genuine interchange of views. Just as importantly, notice helps ensure
that agency regulations are tested via exposure to diverse public comment and that
the agency retains a flexible and open-minded attitude towards its own rules.
Neither the NPRM nor the subsequent Public Notice provided any notice
whatsoever that the FCC was considering adopting the No-Blocking Obligation.
The lack of notice that is expressly required by the APA provides sufficient reason
alone to vacate the No-Blocking Obligation.
Second, the failure to articulate a rational explanation grounded in record
evidence for adoption of the No-Blocking Obligation renders the FCC’s action
arbitrary, capricious, and an abuse of discretion within the meaning of the APA, 5
U.S.C. § 706(2)(A). To comply with the APA, an agency must examine the
relevant data and articulate a satisfactory explanation for its actions, including a
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rational connection between the facts found and the choice made. The Order
lacked any reference to record evidence discussing adoption of the No-Blocking
Obligation for any type of VoIP service or provider (which is unsurprising given
the lack of notice). Further, the Order contained no discussion whatsoever
regarding the extent to which call blocking by VoIP providers has occurred, any
problems or concerns such practices may have created, or the costs or
consequences of prohibiting such conduct by VoIP providers. These gaping
factual holes and lack of any explanation in the Order make it impossible to
conclude the action was the product of reasoned decision-making.
Finally, the FCC exceeded its jurisdiction by relying on its “ancillary
authority” under Title I of the Act to impose the No-Blocking Obligation, and its
adoption of the No-Blocking Obligation is not entitled to deference by the Court.
To the extent an IVoIP or “one-way VoIP” service is an “information service” as
defined in the Act, the FCC may exercise “ancillary authority” only where: (1) its
general jurisdictional grant under Title I covers the subject of the regulations; and
(2) the regulations are reasonably ancillary to the FCC’s effective performance of
its statutorily mandated responsibilities. The Order wholly failed to address
whether the No-Blocking Obligation is within the FCC’s authority under Title I of
the Act, and failed to show that the No-Blocking Obligation is reasonably ancillary
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to any responsibility mandated under the Act. Consequently, the Court should
vacate the No-Blocking Obligation.

ARGUMENT

I.

THE FCC VIOLATED THE APA BY FAILING TO PROVIDE ADEQUATE
NOTICE OF THE NO-BLOCKING OBLIGATION.

Under the APA, a federal agency generally must conduct a notice-and-
comment rulemaking before it adopts a new rule. 47 U.S.C. § 553(b). The APA
mandates that the agency must publish in the Federal Register notice of the
proposed rule, providing “either the terms or substance of the proposed rule or a
description of the subjects and issues involved.” Id. § 553(b)(3). These
requirements “ensure that agency regulations are tested via exposure to diverse
public comment,” “ensure fairness to affected parties,” and “give affected parties
an opportunity to develop evidence in the record to support their objections to the
rule and thereby enhance the quality of judicial review.” Prometheus Radio
Project v. FCC, 652 F.3d 431, 449 (3d Cir. 2011), cert. denied, Tribune Co. v.
FCC, 2012 U.S. LEXIS 4894 (June 29, 2012) (quoting Int’l Union, United Mine
Workers of Am. v. Mine Safety & Health Admin., 407 F.3d 1250, 1259 (D.C. Cir.
2005)). See also 5 U.S.C. § 551(4) (definition of “rule”).
The notice required under the APA must be “‘sufficient to fairly apprise
interested parties’ of all significant subjects and issues involved.” Am. Iron &
Steel Inst. v. EPA, 568 F.2d 284, 291 (3d Cir. 1977) (citation omitted). While a
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final rule need not be precisely described in the notice, changes to proposed rules
after the comment period must be in “character with the original scheme and (be)
foreshadowed in proposals and comments advanced during the rulemaking.”
Beirne v. Secy of Dept of Agric., 645 F.2d 862, 865 (10th Cir. 1981) (citation
omitted).
A reviewing court must hold unlawful and set aside an agency action if the
agency has failed to comply with the procedural requirements of the APA. 5
U.S.C. § 706(2)(D). “It is fundamental law that a rule promulgated by a federal
agency is not valid unless adopted in substantial compliance with the requirements
of the APA,” N. Am. Coal Corp. v. Dir., Office of WorkersComp. Programs, 854
F.2d 386, 388 (10th Cir. 1988), and failure to provide sufficient notice is grounds
for invalidating the improperly enacted requirement. See, e.g., Prometheus Radio
Project, 652 F.3d at 450-51; Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227,
236-241 (D.C. Cir. 2008).
The NPRM did not propose to adopt the No-Blocking Obligation for VoIP
providers, did not discuss or seek comment on the issue of call blocking by VoIP
providers, and never discussed “one-way VoIP providers” in any context. The
only references to call blocking in the NPRM appeared in the context of a practice
called carrier access stimulation; there, the NPRM cited FCC precedent prohibiting
certain telecommunications carriers (specifically, interexchange carriers) from
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blocking calls to customers of local exchange carriers. NPRM ¶ 654 (JA __).
Although adoption of the No-Blocking Obligation was discussed in the
“Interconnection and Traffic Exchange Issues” section of the Order (Order ¶¶ 972-
974 (JA __-__)), the corresponding portion of the NPRM sought comment on a
host of “interconnection and related issues” (NPRM ¶¶ 972-974 (JA __-__))
without ever mentioning call blocking. The summary of the NPRM published in
the Federal Register, 76 Fed. Reg. 11632-11663 (Mar. 2, 2011) (JA __-__), also
did not include notice of a proposed No-Blocking Obligation.
The FCC likewise failed to “give affected parties an opportunity to develop
evidence in the record to support their objections,” Prometheus Radio Project, 652
F.3d at 449, in its subsequent Public Notice seeking further comment on issues
affecting the ICC and USF obligations and rights of IVoIP providers. See Public
Notice, 26 FCC Rcd. at 11128-11129 (JA __); 76 Fed. Reg. 49401-49408 (Aug.
10, 2011) (JA __-__).
Neither the NPRM nor the Public Notice even so much as hinted that the
FCC was considering the No-Blocking Obligation, thereby extending to IVoIP
providers and “one-way VoIP” providers the proscription against blocking of
telephone calls by telecommunications carriers which the FCC has held is a
violation of section 201(b) of the Act, 47 U.S.C. § 201(b), and is not applicable to
information service providers. For example, the FCC never posited any
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hypothetical or actual problems caused by any alleged or actual blocking by any
VoIP service provider, and the voluminous record that was the basis for the Order
did not reflect any such concerns. These absences in the record and the paucity of
the FCC’s reasoning are a direct result of the FCC’s failure to provide adequate
notice.
Because the FCC gave no indication that it was considering adopting the
No-Blocking Obligation, the FCC failed to provide notice “sufficient to fairly
apprise interested parties of all significant subjects and issues involved.” Am. Iron
& Steel Inst., 568 F.2d at 291 (citation omitted); see also Prometheus Radio
Project, 652 F.3d at 453 (two sentences in a notice of proposed rulemaking did not
“fulfill [the FCC’s] obligation to make its views known to the public in a concrete
and focused form so as to make criticism or formulation of alternatives possible.”)
(citation omitted). VoIP service providers, including VON Coalition members and
other affected parties, were not “give[n] . . . an opportunity to develop evidence in
the record to support their objections” to the No-Blocking Obligation. Prometheus
Radio Project, 652 F.3d at 449.
The record is clear that at no time prior to issuing the Order did the FCC
ever give notice that it was contemplating adopting the No-Blocking Obligation.
Because the obligation was not adopted in substantial compliance with the APA, it
must be vacated. Prometheus Radio Project, 652 F.3d at 453; N. Am. Coal Corp.,
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854 F.2d at 388; First Bancorporation v. Bd. of Governors of Fed. Reserve Sys.,
728 F.2d 434, 438 (10th Cir. 1984).

II.

THE FCC FAILED TO ENGAGE IN REASONED DECISION-MAKING IN
ADOPTING THE NO-BLOCKING OBLIGATION.

The APA requires a reviewing court to set aside agency decisions that are
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
the law.” HRI, Inc. v. EPA, 198 F.3d 1224, 1241 (10th Cir. 2000) (quoting 5
U.S.C. § 706(2)(A)). To comply with the APA, “the agency must examine the
relevant data and articulate a satisfactory explanation for its action including a
rational connection between the facts found and the choice made.” Sorenson
Commc’ns, Inc. v. FCC, 659 F.3d 1035, 1045 (10th Cir. 2011) (citing Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)).
“The grounds upon which the agency acted must be clearly disclosed in, and
sustained by, the record. The agency must make plain its course of inquiry, its
analysis, and its reasoning.” Am. Petroleum Inst. v. EPA, 540 F.2d 1023, 1029
(10th Cir. 1976). The reviewing court may not make up for deficiencies in the
agency’s explanation by supplying a reasoned basis for the agency’s action that the
agency itself has not given. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 43 (citing SEC
v. Chenery Corp., 332 U.S. 194, 196 (1947)).
The Order failed to articulate an explanation grounded in any record
evidence to support the FCC’s decision to adopt the No-Blocking Obligation.
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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 23
First, the record is completely bereft of any discussion or data regarding call
blocking and VoIP, or regarding the need to extend to any type of VoIP service or
provider the prohibition against call blocking applicable to telecommunications
carriers. The record does not contain evidence or facts regarding the extent to
which VoIP call blocking has occurred, does not describe any problems or
concerns as a result of VoIP call blocking, and does not include any information
regarding the costs or consequences of prohibiting such conduct by VoIP
providers.
This lack of record evidence is not surprising given the FCC’s failure to
provide notice “sufficient to fairly apprise interested parties” that such action was
under consideration. Am. Iron & Steel Inst., 568 F.2d at 291. Previous cases have
overturned agency action for failure to develop an administrative record sufficient
to support an agency’s factual determinations. See, e.g., Nat’l Welfare Rights Org.
v. Mathews, 533 F.2d 637, 648 (D.C. Cir. 1976) (“[J]udicial review is meaningless
where the administrative record is insufficient to determine whether the action is
arbitrary and capricious.”).
Second, the Order made no factual findings whatsoever regarding the No-
Blocking Obligation. Rather, the FCC merely speculated that blocking “could be
performed” by IVoIP and “one-way VoIP” providers, who “could have incentives”
to avoid access charges. Order ¶ 974 (JA __).
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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 24
Consequently, it is “impossible to conclude the action was the product of
reasoned decision making.” Olenhouse v. Commodity Credit Corp., 42 F.3d 1560,
1575 (10th Cir. 1994) (citation omitted) (“In addition to requiring a reasoned basis
for agency action, the ‘arbitrary or capricious’ standard requires an agency’s action
to be supported by the facts in the record. . . .”) (setting aside agency action found
to be “unsupported by substantial evidence”); see also Qwest Corp. v. FCC, 258
F.3d 1191, 1201 (10th Cir. 2001) (remanding agency action where the FCC failed
to “articulate[] a satisfactory explanation that would enable us to review the
rationality of the [order]” (quotation and citation omitted)).
Because the FCC impermissibly crossed the line from “the tolerably terse to
the intolerably mute,” Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852
(D.C. Cir. 1970)), this Court should vacate the No-Blocking Obligation as adopted
in the Order.

III. THE FCC EXCEEDED ITS STATUTORY AUTHORITY BY IMPOSING THE NO-

BLOCKING OBLIGATION ON INFORMATION SERVICES.

While a reviewing court typically defers to the FCC’s interpretation of its
authority under the Act, see Qwest Corp. v. FCC, 689 F.3d 1214, 1224 (10th Cir.
2012) (citing Chevron, U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S.
837 (1984)), the Court owes no deference where the action was “not promulgated
with procedural protections,” including those required by the APA in connection
with notice and comment rulemaking proceedings. S. Ute Indian Tribe v. Amoco
15


Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 25
Prod. Co., 119 F.3d 816, 833 (10th Cir. 1997); see Mission Grp. Kansas, Inc. v.
Riley, 146 F.3d 775, 782 (10th Cir. 1998). Because the FCC failed to comply with
the APA, as shown in Section I supra, its assertion of authority to adopt the No-
Blocking Obligation is not entitled to deference.
Moreover, a reviewing court may review whether an agency’s interpretation
of its statutory authority is a permissible construction of the statute. See Am.
Library Assn v. FCC, 406 F.3d 689, 699 (D.C. Cir. 2005). Although the 10th
Circuit has not previously reviewed an exercise of ancillary jurisdiction by the
FCC, the Court of Appeals for the District of Columbia Circuit, distilling Supreme
Court precedent regarding the FCC’s ancillary authority, has stated that the FCC
may exercise ancillary jurisdiction only when “(1) the Commission’s general
jurisdictional grant under Title I [of the Act] covers the regulated subject and (2)
the regulations are reasonably ancillary to the Commission’s effective performance
of its statutorily mandated responsibilities.” Comcast Corp. v. FCC, 600 F.3d 642,
646 (D.C. Cir. 2010); see also Am. Library Ass’n, 406 F.3d at 700. The FCC’s
asserted exercise of ancillary authority in the Order imposing the No-Blocking
Obligation fails both prongs of this test.2

2 The FCC “must defend its exercise of ancillary authority on a case-by-case
basis,” Comcast Corp., 600 F.3d at 651, and “the permissibility of each new
exercise of ancillary authority must be evaluated on its own terms,” id. at 650
(citing U.S. v. Midwest Video Corp., 406 U.S. 649, 670 (1972)).
16


Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 26
First, the Order failed completely to address whether and how Title I of the
Act grants the FCC general jurisdictional authority to impose the No-Blocking
Obligation upon IVoIP and “one-way VoIP” services that meet the definition of
“information services.” In the Order, the FCC merely stated without more that
“if” IVoIP and “one-way VoIP” services are information services, then they are
subject to the FCC’s ancillary authority under Title I. Order ¶ 974 (JA __). As
such, the FCC’s attempted regulation does not satisfy the first prong of Comcast.
Second, the Order failed to demonstrate that the No-Blocking Obligation is
“reasonably ancillary to the . . . effective performance of [the FCC’s] statutorily
mandated responsibilities,” Comcast Corp., 600 F.3d at 646. The Order did not
describe any specific statutorily-mandated responsibilities, and did not articulate
with specificity how the No-Blocking Obligation would further any such
responsibilities. Rather, the Order simply alluded in a single footnote (Order ¶
974, n.2043) (JA __) to sections 201 and 251(a)(1) of the Act, 47 U.S.C. §§ 201,
251(a)(1), and proffered hypothetical scenarios whereby a specific type of
telecommunications carrier (“an interexchange carrier that is a wholesale partner of
such a [sic] VoIP provider”) might evade its obligations under section 201 of the
Act, and whereby telecommunications carrier interconnection required under
section 251(a)(1) of the Act could be impeded, if that carrier’s “VoIP provider
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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 27
wholesale customer” was not subject to the No-Blocking Obligation. Order ¶ 974,
n.2043 (JA __).
Such conjecture alone cannot justify the FCC’s assertion of ancillary
authority over all IVoIP and “one-way VoIP” providers. Merely reciting that
carriers might seek to evade their statutory obligations or that traditional phone
customers might be denied “the intended benefits of telecommunications
interconnection under section 251(a)(1),” Order ¶ 974, n.2043 (JA __, __), failed to
link a specific statutory responsibility under the Act with the imposition of a new
obligation on all IVoIP and “one-way VoIP” providers, including providers of
information services. Accordingly, the Order failed to articulate the requisite
connection between the FCC’s statutory responsibilities under the Act and its
assertion of ancillary authority imposing the No-Blocking Obligation.
As such, the Order failed to satisfy the second prong of the ancillary
authority test, and does not support “untrammeled freedom to regulate activities
over which the statute fails to confer . . . Commission authority.” Comcast Corp.,
600 F.3d at 661 (citing Nat’l Ass’n of Regulatory Util. Comm’rs v. FCC, 533 F.2d
601, 617 (D.C. Cir. 1976)). See also Comcast, 600 F.3d at 651-661 (rejecting
FCC’s lengthy attempt to justify exercise of ancillary authority); Am. Library
Ass’n, 406 F.3d at 703-705) (same).
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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 28
Because the No-Blocking Obligation was promulgated without the APA’s
required procedural protections and is not a permissible construction of the statute,
the Court should vacate, as contrary to law, the No-Blocking Obligation.


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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 29

CONCLUSION

The adoption of the No-Blocking Obligation violates the notice requirements
of the APA, 5 U.S.C. § 553(b), is arbitrary, capricious, and an abuse of discretion
within the meaning of the APA, 5 U.S.C. § 706(2)(A), and exceeds the FCC’s
jurisdiction and authority under the Act. Petitioners therefore respectfully request
that the Court vacate the No-Blocking Obligation.

Respectfully
submitted,




By: /s/ Donna N. Lampert

_____________________________________________________
Donna N. Lampert (Digital)
LAMPERT, O’CONNOR & JOHNSTON, P.C.
1776 K Street NW, Suite 700
Washington, DC 20006
Tel: 202.887.6230
Fax: 202.887.6231
lampert@lojlaw.com


Counsel for the Petitioner


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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 30

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(C) and the Amended First Briefing
Order, I certify that this brief complies with the type-volume requirements because
it contains 4,094 words, excluding the parts of the filing exempted by Fed. R. App.
P. 32(a)(7)(B)(iii).
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 Times New Roman font.






By:
/s/ Donna N. Lampert
_____________________________________________________
Donna N. Lampert (Digital)
Counsel for the Petitioner


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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 31

STATUTORY AND REGULATORY ADDENDUM

5 U.S.C. § 551

§ 551. Definitions

For the purpose of this subchapter --

(1) "agency" means each authority of the Government of the United States,
whether or not it is within or subject to review by another agency, but does not
include--

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions of the United States;

(D) the government of the District of Columbia; or except as to the requirements of
section 552 of this title --

(E) agencies composed of representatives of the parties or of representatives of
organizations of the parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of war or in occupied territory;
or

(H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12;
subchapter II of chapter 471 of title 49; or sections 1884, 1891-1902, and former
section 1641(b)(2), of title 50, appendix;

(2) "person" includes an individual, partnership, corporation, association, or public
or private organization other than an agency;

(3) "party" includes a person or agency named or admitted as a party, or properly
seeking and entitled as of right to be admitted as a party, in an agency proceeding,
and a person or agency admitted by an agency as a party for limited purposes;

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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 32
(4) "rule" means the whole or a part of an agency statement of general or particular
applicability and future effect designed to implement, interpret, or prescribe law or
policy or describing the organization, procedure, or practice requirements of an
agency and includes the approval or prescription for the future of rates, wages,
corporate or financial structures or reorganizations thereof, prices, facilities,
appliances, services or allowances therefor or of valuations, costs, or accounting,
or practices bearing on any of the foregoing;

(5) "rule making" means agency process for formulating, amending, or repealing a
rule;

(6) "order" means the whole or a part of a final disposition, whether affirmative,
negative, injunctive, or declaratory in form, of an agency in a matter other than rule
making but including licensing;

(7) "adjudication" means agency process for the formulation of an order;

(8) "license" includes the whole or a part of an agency permit, certificate, approval,
registration, charter, membership, statutory exemption or other form of permission;

(9) "licensing" includes agency process respecting the grant, renewal, denial,
revocation, suspension, annulment, withdrawal, limitation, amendment,
modification, or conditioning of a license;

(10) "sanction" includes the whole or a part of an agency--

(A) prohibition, requirement, limitation, or other condition affecting the freedom of
a person;

(B) withholding of relief;

(C) imposition of penalty or fine;

(D) destruction, taking, seizure, or withholding of property;

(E) assessment of damages, reimbursement, restitution, compensation, costs,
charges, or fees;

(F) requirement, revocation, or suspension of a license; or

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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 33
(G) taking other compulsory or restrictive action;

(11) "relief" includes the whole or a part of an agency--

(A) grant of money, assistance, license, authority, exemption, exception, privilege,
or remedy;

(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or

(C) taking of other action on the application or petition of, and beneficial to, a
person;

(12) "agency proceeding" means an agency process as defined by paragraphs (5),
(7), and (9) of this section;

(13) "agency action" includes the whole or a part of an agency rule, order, license,
sanction, relief, or the equivalent or denial thereof, or failure to act; and

(14) "ex parte communication" means an oral or written communication not on the
public record with respect to which reasonable prior notice to all parties is not
given, but it shall not include requests for status reports on any matter or
proceeding covered by this subchapter.


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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 34
5 U.S.C. § 553
§ 553. Rule making
(a) This section applies, according to the provisions thereof, except to the extent
that there is involved—
(1) a military or foreign affairs function of the United States; or
(2) a matter relating to agency management or personnel or to public property,
loans, grants, benefits, or contracts.
(b) General notice of proposed rule making shall be published in the Federal
Register, unless persons subject thereto are named and either personally served or
otherwise have actual notice thereof in accordance with law. The notice shall
include—
(1) a statement of the time, place, and nature of public rule making proceedings;
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the
subjects and issues involved.
Except when notice or hearing is required by statute, this subsection does not
apply—
(A) to interpretative rules, general statements of policy, or rules of agency
organization, procedure, or practice; or
(B) when the agency for good cause finds (and incorporates the finding and
a brief statement of reasons therefor in the rules issued) that notice and
public procedure thereon are impracticable, unnecessary, or contrary to the
public interest.
(c) After notice required by this section, the agency shall give interested persons an
opportunity to participate in the rule making through submission of written data,
views, or arguments with or without opportunity for oral presentation. After
consideration of the relevant matter presented, the agency shall incorporate in the
rules adopted a concise general statement of their basis and purpose. When rules
are required by statute to be made on the record after opportunity for an agency
hearing, sections 556 and 557 of this title apply instead of this subsection.
(d) The required publication or service of a substantive rule shall be made not less
than 30 days before its effective date, except—
(1) a substantive rule which grants or recognizes an exemption or relieves a
restriction;
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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 35
(2) interpretative rules and statements of policy; or
(3) as otherwise provided by the agency for good cause found and published
with the rule.
(e) Each agency shall give an interested person the right to petition for the
issuance, amendment, or repeal of a rule.


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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 36
5 U.S.C. § 706
§ 706. Scope of review
To the extent necessary to decision and when presented, the reviewing court shall
decide all relevant questions of law, interpret constitutional and statutory
provisions, and determine the meaning or applicability of the terms of an agency
action. The reviewing court shall—
(1) compel agency action unlawfully withheld or unreasonably delayed; and
(2) hold unlawful and set aside agency action, findings, and conclusions found to
be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right;
(D) without observance of procedure required by law;
(E) unsupported by substantial evidence in a case subject to sections 556 and
557 of this title or otherwise reviewed on the record of an agency hearing
provided by statute; or
(F) unwarranted by the facts to the extent that the facts are subject to trial de
novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record
or those parts of it cited by a party, and due account shall be taken of the rule of
prejudicial error.



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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 37
47 U.S.C. § 153
§ 153. Definitions



(24) Information service. The term "information service" means the offering of a
capability for generating, acquiring, storing, transforming, processing, retrieving,
utilizing, or making available information via telecommunications, and includes
electronic publishing, but does not include any use of any such capability for the
management, control, or operation of a telecommunications system or the
management of a telecommunications service.



(51) Telecommunications carrier. The term “telecommunications carrier” means
any provider of telecommunications services, except that such term does not
include aggregators of telecommunications services (as defined in section 226 of
this title). 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, except that the Commission shall determine whether the provision of
fixed and mobile satellite service shall be treated as common carriage.



(53) Telecommunications service. The term "telecommunications service" means
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.




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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 38
47 U.S.C. § 201
§ 201. Service and charges

(a) It shall be the duty of every common carrier engaged in interstate or foreign
communication by wire or radio to furnish such communication service upon
reasonable request therefor; and, in accordance with the orders of the Commission,
in cases where the Commission, after opportunity for hearing, finds such action
necessary or desirable in the public interest, to establish physical connections with
other carriers, to establish through routes and charges applicable thereto and the
divisions of such charges, and to establish and provide facilities and regulations for
operating such through routes.

(b) All charges, practices, classifications, and regulations for and in connection
with such communication service, shall be just and reasonable, and any such
charge, practice, classification, or regulation that is unjust or unreasonable is
hereby declared to be unlawful: Provided, That communications by wire or radio
subject to this Act may be classified into day, night, repeated, unrepeated, letter,
commercial, press, Government, and such other classes as the Commission may
decide to be just and reasonable, and different charges may be made for the
different classes of communications: Provided further, That nothing in this Act or
in any other provision of law shall be construed to prevent a common carrier
subject to this Act from entering into or operating under any contract with any
common carrier not subject to this Act, for the exchange of their services, if the
Commission is of the opinion that such contract is not contrary to the public
interest: Provided further, That nothing in this Act or in any other provision of law
shall prevent a common carrier subject to this Act from furnishing reports of
positions of ships at sea to newspapers of general circulation, either at a nominal
charge or without charge, provided the name of such common carrier is displayed
along with such ship position reports. The Commission may prescribe such rules
and regulations as may be necessary in the public interest to carry out the
provisions of this Act.



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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 39
47 U.S.C. § 251(a)
§ 251. Interconnection
(a) General duty of telecommunications carriers. Each telecommunications carrier
has the duty—
(1) to interconnect directly or indirectly with the facilities and equipment of
other telecommunications carriers; and
(2) not to install network features, functions, or capabilities that do not comply
with the guidelines and standards established pursuant to section 255 or 256.




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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 40
47 C.F.R. § 9.3
§ 9.3 Definitions.

Interconnected VoIP service. An interconnected Voice over Internet protocol
(VoIP) service is a service that:
(1) Enables real-time, two-way voice communications;
(2) Requires a broadband connection from the user's location;
(3) Requires Internet protocol-compatible customer premises equipment (CPE);
and
(4) Permits users generally to receive calls that originate on the public switched
telephone network and to terminate calls to the public switched telephone
network.



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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 41

CERTIFICATION OF DIGITAL SUBMISSION


I hereby certify that I have scanned for viruses the Portable Document
Format version of the attached document, which was mailed electronically to
FCC_briefs_only@ca10.uscourts.gov, in accordance with the Court’s October 17,
2012 Order Governing Procedures for the Electronic Filing of All Briefs in the
Consolidated Proceeding. The document has been scanned using Symantec
Endpoint Protection version 12.1.1101.401 (Release) RU1MP (definitions last
updated October 23, 2012), and according to that program, the document is free of
viruses. I further certify that no privacy redactions were required.







By: /s/ Donna N. Lampert
_____________________________________________________
Donna N. Lampert (Digital)
Counsel for the Petitioner


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Appellate Case: 11-9900 Document: 01018937380 Date Filed: 10/23/2012 Page: 42

CERTIFICATE OF SERVICE


I hereby certify that on October 23, 2012, I caused the foregoing

UNCITED

VOICE ON THE NET COALITION PRINCIPAL BRIEF

to be mailed
electronically to FCC_briefs_only@ca10.uscourts.gov, in accordance with the
Court’s October 17, 2012 Order Governing Procedures for the Electronic Filing of
All Briefs in the Consolidated Proceeding. The document will be available for
viewing and downloading on the CM/ECF system through notice of docket activity
(NDA) to all attorneys who have entered their appearances in the consolidated
proceedings.



By: /s/ Donna N. Lampert
_____________________________________________________
Donna N. Lampert (Digital)
Counsel for the Petitioner


33


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