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FCC Response to Petitioners' Motion to Establish a Procedural Schedule

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Released: June 25, 2012

IN RE: FCC 11-161

No. 11-9900




The Federal Communications Commission respectfully files this response to
the petitioners’ June 11, 2012, motion to establish a procedural schedule, which
asks the Court to issue an order directing the parties to file briefs at prescribed
intervals and proposes a briefing format that would allow petitioners and their
supporting intervenors in this case to file up to 28 opening, supplemental and reply
briefs aggregating 223,000 words.

Concurrently with this response, the Commission is filing a motion to hold
this case in abeyance pending agency action on numerous petitions for
administrative reconsideration of the Order on review. If that motion is granted
and the Court’s review is deferred pending further agency action, the scope of the
issues on review may well be narrowed in ways that would bear on future briefing
proposals. Should the Court decide to issue a briefing schedule at this time,
however, we respectfully request that the Court adopt the alternative proposal
outlined below in Argument II. As we explain below, although the complexity of
this case reasonably requires briefing volumes greater than those customarily

permitted in most civil appeals, the 223,000-word allocation petitioners seek vastly
exceeds what is needed fairly to present their challenges to the FCC order on
review (Connect America Fund, 26 FCC Rcd 17663 (2011) (“Order”)) and will
impose an undue burden on the Court and the respondents.

Counsel for respondent United States have authorized Commission counsel
to represent that the United States supports the views expressed in this response.


I. Rule 32(a)(7)(B) of the Federal Rules of Appellate Procedure generally
provides that a petitioner may file a principal brief of up to 14,000 words and a
reply brief of up to 7,000 words. Under this Court’s local rules, “[m]otions to
exceed the [otherwise applicable] word count will be denied unless extraordinary
and compelling circumstances can be shown.” 10th Circuit Rule 28.3. Further,
“[i]n civil cases involving more than one appellant or appellee, including
consolidated cases, all parties on a side (including intervenors) must – to the extent
practicable – file a single brief.” 10th Circuit Rule 31.3(A). See also id. Rule
31.3(B) (requiring “[a]ny brief filed separately by one of multiple parties [to]
contain a certificate plainly stating the reasons why the separate brief is
There are sound reasons for these limits on briefing volumes. Excessive
briefing imposes burdens on the Court (as well as opposing parties), because “extra

argument means extra judicial time, which must be carefully apportioned.” United
States v. Torres, 170 F.3d 749, 751 (7th Cir. 1999). Thus, courts will not “permit[]
litigants on the same side of a case, and occupying common ground, . . . as many
words as there are warm bodies, multiplied by 14,000.” Id. Rather, the rules
generally “give 14,000 words per brief,” the court “allot[s] one brief to parties
sharing common interests,” and “[a] longer presentation depends on a
demonstration of need, not on the raw number of litigants.” Id.
Permitting a party to file an inordinately lengthy brief not only burdens the
court and opposing counsel, it poorly serves the party itself. “[T]he more issues a
brief presents, the less attention each receives,” Knox v. United States, 400 F.3d
519, 521 (7th Cir. 2005), and courts “have emphasized the importance of
winnowing out weaker arguments on appeal and focusing only on one central issue
if possible, or at most on a few key issues.” Jones v. Barnes, 463 U.S. 745, 751-52
(1983). This Court’s Practitioners’ Guide confirms this point: “A brief that
assigns dozens of errors and treats each as being of equal importance when some
are clearly not lessens the stronger arguments. As Justice Frankfurter once said, a
bad argument is like the clock striking thirteen, it put in doubt the others.”
Practitioners’ Guide to the United States Court of Appeals for the Tenth Circuit 41
(8th Revision, March 2012) (emphasis added).

Guided by these principles, the Court should reject petitioners’ briefing
proposal. Petitioners propose opening briefs totaling 109,000 words (Mot. at 3-6),
two supplemental opening briefs totaling 31,500 words (id. at 8-10), and three
briefs by their supporting intervenors totaling 12,000 words (id. at 10) – generating
a total of 152,500 words to which the Commission and its supporting intervenors
must respond.1 Petitioners further propose to file nine reply briefs totaling 50,500
words, an unspecified number of supplemental reply briefs totaling 14,000 words,
and three supporting intervenors’ reply briefs totaling 6000 words – for an
additional aggregate briefing volume of 70,500 words. Mot. at 11.
Assuming that 14,000 words corresponds to approximately a 60-page brief
in 14-point type, petitioners’ proposal calls for more than (a) 650 pages of opening
and initial supplemental briefs by petitioners and their intervenors, (b) nearly 640
pages of responsive briefs by the FCC and its supporting intervenors,2 and (c) more
than 300 pages of reply and supplemental reply briefs by petitioners and their
supporting intervenors. Taken together, this briefing proposal would authorize a
total of roughly sixteen hundred pages of briefs – or, stated another way,
approximately 26 ½ full-sized briefs.

1 Petitioners later assert that the total allotment of words for the “initial round of
briefs” is “only 142,500.” Mot. at 16. It is unclear how petitioners arrived at that
figure, which appears inconsistent with their itemized list of proposed briefs.
2 Petitioners propose to allot the government respondents a word count “equal to
[the] total of Petitioners Briefs” (presumably 140,500 words) and respondents’
supporting intervenors 8750 words. Mot. at 10.

Petitioners argue that this volume of briefing is warranted because there are
an unusual number of petitioners (31) and supporting intervenors (40), because the
order on review is lengthy, and because it comprehensively restructures the
previously existing intercarrier compensation regimes and universal service
support programs. Mot. at 15-17. But the various assignments of error listed in
petitioners’ Appendix of Issues Raised (filed contemporaneously with the motion)
largely distill to two sets of challenges: (1) attacks on the Commission’s statutory
authority to adopt a bill-and-keep intercarrier compensation regime (and the
reasonableness of the regulatory measures the agency employed to transition to
such a regime); and (2) statutory and Administrative Procedure Act challenges to
the sufficiency and scope of the Commission’s modified universal service support
program.3 Petitioners and their supporting intervenors – who are limited to
addressing issues raised by the petitioners themselves4 – should not need the
equivalent of nearly 11 full-sized opening and supplemental briefs (152,500 words)
to address those two overarching sets of issues (or related subsidiary issues).

3 Petitioners’ liaison counsel properly acknowledges that the petitioners’ Appendix
of Issues Raised appears to contain “significant” or “very significant” “overlap” in
places. Appendix of Issues Raised at 73, 76; see also id. at 36, 48, 52 (noting the
presence of additional possible overlap).
4 See Order Governing Motion Practice in the Consolidated Proceedings, 10th Cir.
No. 11-9900, at 6 (March 13, 2012) (citing Arapahoe Cy. Pub. Airport Auth. v.
, 242 F.3d 1213, 1217-18 n.4 (10th Cir. 2001)).

Nor does the fact that the Order on review is itself lengthy justify the word
counts petitioners propose. Contrary to petitioners’ suggestion (Mot. at 15-16),
there is no direct arithmetic correlation between the length of an order and the
number of words needed to challenge it, and, in our experience, no court has ever
set word limits on such a basis. Indeed, petitioners’ unwarranted proposal (Mot. at
5) for a full-size 14,000-word opening brief for Transcom Enhanced Services Inc.
and Halo Wireless – which appear to distinguish themselves from other petitioners
primarily through a challenge to just two paragraphs of the Order5 – itself belies
any arithmetic correlation between the Order’s size and the appropriate word limits
for the parties’ briefs.6
At the same time, we acknowledge the breadth and complexity of the
regulatory actions taken in the Order on review. In that Order, the FCC undertook
comprehensive reform of two major federal regulatory regimes: the universal
service program, which subsidizes the provision of telephone service in areas
where the cost of providing service is high; and the intercarrier compensation

5 See Order ¶¶ 1005-06 (rejecting Halo’s proposed interpretation of one
intercarrier compensation rule); see also Appendix of Issues Raised at 73 (noting
“significant overlap” between the Transcom/Halo issues and those raised by other
6 The allotment of a full-size brief to Transcom and Halo also ignores the fact that
those parties participated only briefly in the proceedings before the agency.
Although they each proffered a couple ex parte letters, the only formal pleading
filed by either party was a 12-page reply comment submitted by Halo on April 18,

system, which provides a framework for telephone companies to compensate each
other for the cost of originating and terminating telecommunications traffic. The
scope of the Order and the importance of the case to the varied stakeholders
reasonably require a greater volume of briefing than the average case. Below, we
offer an alternative briefing proposal, which we urge the Court to adopt in the
event that this case is not held in abeyance.
II. Should the Court decide to issue an order establishing a briefing schedule
at this time, we respectfully suggest that it set a limit of 56,000 words for opening
briefs on each side, inclusive of briefs for supporting intervenors, to be allocated
among the primary parties (i.e., petitioners and respondents) and the supporting
intervenors on each side as they see fit. We also see no reason for a subsequent
round of supplemental briefs. A limit of 56,000 words per side for opening briefs
in this case should be sufficient to allow both sides to brief the issues raised: It is
the equivalent of four full-sized briefs in other cases, and amounts to
approximately 240 pages per side in 14-point type. In our view, a proportionate
allotment of 28,000 words for reply briefs by petitioners and their intervenors also
would be appropriate.
While these expanded word limits would impose additional burdens on the
Court and the parties, we believe that they are justified by the range and
complexity of the issues raised in the case. By contrast, the “limits” petitioners

propose are effectively no limits at all, and indicate that the petitioners have made
no meaningful attempt to winnow or consolidate their arguments in order to
present them to the Court with a modicum of concision. The Court should not
reward the petitioners’ failure to exercise sufficient discipline by granting their
request for a truly extraordinary expansion of the page limits.
Finally, we note that petitioners propose that respondents FCC and United
States file their brief approximately 90 days after the petitioners’ opening briefs.
That interval is sufficient if the Court adopts the 56,000 word-count limit we
propose. If the Court were to grant each side significantly more words in this case,
a longer interval may be needed.



For all of the foregoing reasons, if the Court decides to issue a briefing order
at this time, rather than hold the case in abeyance, the Court should deny
petitioners’ motion and establish a briefing proposal as outline above.

Sean A. Lev

Acting General Counsel

Peter Karanjia

Jacob M. Lewis


James M. Carr



June 25, 2012




In re: FCC 11-161, Petitioners


Federal Communications Commission
and United States of America, Respondents.


Pursuant to the requirements of the Order Governing Motion Practice dated
March 13, 2012, I hereby certify that the accompanying Response to Petitioners’
Motion to Establish a Procedural Schedule contains 1,834 words.

/s/ Laurence N. Bourne




June 25, 2012


I, Laurence N. Bourne, hereby certify that with respect to the foregoing:

(1) there are no required privacy redactions to be made per 10th Cir. R. 25.5;

(2) if required to file additional hard copies, that the ECF submission is an
exact copy of those documents;

(3) the digital submissions have been scanned for viruses with the most
recent version of a commercial virus scanning program, Symantec Endpoint
Protection version 11.0.5002.333, and according to the program are free of

/s/ Laurence N. Bourne

Laurence N. Bourne
Federal Communications Commission
Washington, D.C. 20554
(202) 418-1750




In re: FCC 11-161, Petitioners


Federal Communications Commission and United States of America,


I, Laurence N. Bourne, hereby certify that on June 25, 2012, I electronically filed
the foregoing Response to Petitioners’ Motion to Establish a Procedural Schedule
with the Clerk of the Court for the United States Court of Appeals for the Tenth
Circuit by using the CM/ECF system. Participants in the case who are registered
CM/ECF users will be served by the CM/ECF system.

Joseph K. Witmer
Charles A. Zdebski
Kathryn G. Sophy
James C. Falvey
Bohdan R. Pankiw
Jennifer E. Lattimore
Pennsylvania PUC
Eckert Seamans Cherin & Mellott
P.O. Box 3265
1717 Pennsylvania Avenue, N.W.
Harrisburg, PA 17105-3265
12th Floor
Counsel for: Pennsylvania PUC
Washington, D.C. 20006
Counsel for: Core Communications,

Ernest C. Cooper
David Bergmann
Robert G. Kidwell
3293 Noreen Drive
Howard J. Symons
Columbus, OH 43221-4568
Mintz Levin Cohn Ferris Glovsky &
Counsel for: NASUCA
Popeo PC
701 Pennsylvania Avenue, N.W.

Suite 900
Washington, D.C. 20004
Counsel for: NCTA

Paula Marie Carmody
Christopher J. White
MD Office of People’s Counsel
New Jersey Division of Rate Counsel
Suite 2102
P.O. Box 46005
6 St. Paul Street
Newark, NJ 07101
Baltimore, MD 21202
Counsel for NASUCA
Counsel for NASUCA

Russell M. Blau
David A. LaFuria
Tamar Finn
Russell D. Lukas
Bingham & McCutchen, LLP
Todd B. Lantor
2020 K Street, N.W.
David L. Nace
Washington, D.C. 20006
Lukas, Nace, Gutierrez & Sachs,
Counsel for: NTCA and OPASTCO
Suite 1200
8300 Greensboro Drive
McLean, VA 22102
Counsel for: Cellular South, Inc.,et


John H. Jones
Benjamin H. Dickens
Office of the Ohio Attorney General
Gerard J. Duffy
150 E. Gay Street, 16th Floor
Mary J. Sisak
Columbus, OH 43215
Robert M. Jackson
Counsel for: PUC of Ohio
Blooston & Mordkofsky
2120 L Street, N.W., Suite 300
Washington, D.C. 20037
Counsel for: Choctaw Telephone
Company, et al.

Craig S. Johnson
David R. Irvine
Johnson & Sporleder
Jenson Stavros & Guelker
304 E. High Street
747 East South Temple, Suite 130
P.O. Box 1606
Salt Lake City, UT 84102
Jefferson City, MO 65102
Counsel for: Direct
Counsel for: Choctaw Telephone
Communications Cedar Valley, LLC,
et al.

David H. Solomon
Donna N. Lampert
Craig E. Gilmore
Mark J. O’Connor
Charles L. Keller
Jennifer P. Bagg
Wilkinson Barker Knauer, LLP
E. Ashton Johnston
2300 N Street, N.W., Suite 700
Joseph Bissonnette
Washington, D.C. 20037
Helen E. Disenhaus
Counsel for: T-Mobile USA, Inc.
Justin L. Faulb
Lampert, O’Connor & Johnston, PC
1776 K Street, N.W., Suite 700
Washington, D.C. 20006
Counsel for: Transcom Enhanced
Services, Inc ., et al.


William S. McCollough
Christopher M. Heimann
McColloughHenry, PC
Gary L. Phillips
1250 South Capital of Texas
Paul K. Mancini
AT&T Inc.
Suite 2-235
1120 20th Street, N.W., Suite 1000
West Lake Hills, TX 78746
Washington, DC 20036
Counsel for: Halo Wireless, Inc.
Counsel for: AT&T

Jonathan E. Nuechterlein
Bridget Asay
Elvis Stumbergs
State of Vermont office of the
Heather M. Zachary
Attorney General
Daniel Deacon
109 State Street
Wilmer Cutler, et al.
Montpelier, VT 05609
1875 Pennsylvania Avenue, N.W.
Counsel for: Vermont PSB
Washington, D.C. 20006-1420
Counsel for: AT&T Inc.

Nancy C. Garrison
Scott H. Angstreich
Robert B. Nicholson
Brendan J. Crimmins
U.S. Department of Justice
Kellogg, Huber, Hansen, Todd,
Antitrust Division, Appellate Section Evans & Figel, PLLC
950 Pennsylvania Avenue, N.W.
1615 M Street, N.W., Suite 400
Washington, D.C. 20530
Washington, D.C. 20036
Counsel for: USA
Counsel for: Verizon

Christopher J. Wright
Glenn Richards
Wiltshire & Grannis LLP
Pillsbury Winthrop Shaw Pittman
1200 18th Street, N.W.
2300 N Street, N.W.
Washington, D.C. 20036
Washington, D.C. 20037-1122
Counsel for: Level 3
Counsel for: The Voice on the Net
Communications, LLC and Sprint
Nextel Corporation


Thomas Jones
Robert A. Long, Jr.
David Paul Murray
Gerald J. Waldron
Nirali Patel
Yaron Dori
Willkie, Farr & Gallagher LLP
Enrique Armijo
1875 K Street, N.W.
Covington & Burling LLP
Washington, D.C. 20006
1201 Pennsylvania Avenue, N.W.
Counsel for: tw telecom, inc.
Washington, D.C. 20004-2401
Counsel for: CenturyLink, Inc.

David E. Mills
Clare E. Kindall
J.G. Harrington
Assistant Attorney General
Dow Lohnes PLLC
Department Head-Energy
1200 Ner Hampshire Avenue, N.W.
Office of the Attorney General
Suite 800
Ten Franklin Square
Washington, D.C. 20036-6802
New Britain, CT 06051
Counsel for: Cox Communications,
Counsel for Connecticut PURA

Genevieve Morelli
Craig S. Johnson
Johnson & Sporleder, LLP
1101 Vermont Avenue, N.W.
304 E High Street, Suite 200
Suite 501
P.O. Box 1670
Washington, D.C. 20005
Jefferson City, MO 65102
Counsel for: ITTA
Counsel for: Choctaw Telephone

Carl W. Northrop
Mark A. Stachiw
Telecommunications Law
MetroPCS Communications, Inc.
Professionals PLLC
2250 Lakeside Blvd.
875 15th Street, N.W., Suite 750
Richardson, TX 75082
Washington, D.C. 20005
Counsel for: MetroPCS
Counsel for: MetroPCS
Communications, Inc.
Communications, Inc.


Gregory J. Vogt
Paul M. Schudel
Law Offices of Gergory J. Vogt,
Thomas J. Moorman
Woods & Aitken LLP
2121 Eisenhower Avenue, Suite 200
301 South 13th Street, Suite 500
Alexandria, VA 22314
Lincoln, Nebraska 68508
Counsel for: National Exchange
Counsel for: Nebraska Rural
Carriers Association, Inc.
Independent Companies

Matthew A. Brill
Steven H. Thomas
Latham & Watkins
McGuire Craddock & Strother, PC
555 11th Street, Suite 1000
2501 N. Harwood, Suite 1800
Washington, D.C. 20004
Dallas, TX 75201
Counsel for: Rural Cellular
Counsel for: Halo Wireless

Sidney Powell
Walter H. Sargent
Torrence E. Lewis
1632 N. Cascade Avenue
3831 Turtle Creek Blvd. #5B
Colorado Springs, CO 80907
Dallas, TX 75219
Counsel for Transcom Enhanced
Counsel for: Transcom Enhanced
Services, Inc., et al..
Services, Inc.

Michael B. Wallace
Caressa D. Bennet
Rebecca Hawkins
Kenneth C. Johnson
Wise Carter Child & Caraway, P.A.
Daryl A. Zakov
401 E. Capitol Street
Anthony K. Veach
Heritage Building, Suite 600
Bennet & Bennet, PLLC
Jackson, MS 39201
4350 East West Highway, Suite 201
Counsel for: Cellular South, Inc.
Bethesda, MD 20814
Counsel for: Rural
Telecommunications Group, Inc. and
Central Texas Telephone
Cooperative, Inc.


Samuel L. Feder
John B. Messenger
Elaine J. Goldenberg
5700 Georgia Avenue
Jenner & Block LLP
West Palm Beach, FL 33405
1099 New York Avenue, N.W.
Counsel for: YMax Communications
Washington, D.C. 20001
Counsel for: Comcast Corporation

Robert A. Fox
Patricia A. Millett
1500 SW Arrowhead Road
Kevin Amer
Topeka, KS 66604
Sean Conway
Counsel for The State Corporation
Akin Gump Strauss Hauer & Feld
Commission of the State of Kansas
1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Counsel for: Gila River Indian
Community, et al.

Don L. Keskey
Ivan C. Evilsizer
505 N. Capitol Avenue
Evilsizer Law Office, PLLC
Lansin, MI 48933
2301 Colonial Drive, Suite 2B
Counsel for: Allband
Helena, MT 59601-4995
Communications Cooperative
Counsel for: Ronan Telephone
Company, et al.

Alan L. Smith
Roger D. Dixon, Jr.
1169 East 4020 South
Law Offices of Dale Dixon
Salt Lake City, UT 84124
7316 Esfera Street
Counsel for Direct Communications
Carlsbad, CA 92009
Cedar Valley, LLC, et al.
Counsel for: North County
Communications Corporation


David Cosson
H. Russell Frisby, Jr.
2154 Wisconsin Avenue, N.W.
Dennis Lane
Washington, D.C. 20007
Harvey L. Reiter
Counsel for: Eastern Nebraska
Stinson Morrison Hecker
Telephone Company
1775 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Counsel for: Eastern Nebraska
Telephone Company

Robin K. Lunt
Maureen A. Scott
James B. Ramsay
Janet F. Wagner
NARUC 1101 Vermont Avenue,
Wesley C. Van Cleve
N.W., Suite 200
Arizona Corporation Commission
Washington, D.C. 20005
Legal Division
Counsel for: NARUC
1200 West Washington

Phoenix, AZ 85007
Counsel for: Arizona Corporation

Raymond L. Doggett, Jr.
Rick Chessen
D. Mathias Roussy, Jr.
Neal M. Goldberg
Virginia State Corporation
Jennifer McKee
Steven F. Morris
Office of General Counsel
P.O. Box 1197
25 Masschusetts Avenue, N.W.
Richmond, VA 23218-1197
Suite 100
Counsel for: Virginia State
Washington, D.C. 20001
Corporation Commission
Counsel for: NCTA

/s/ Laurence N. Bourne


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