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

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Released: August 14, 2012
Appellate Case: 11-9900 Document: 01018896437 Date Filed: 08/13/2012 Page: 1


United States Court of Appeals


Tenth Circuit

August 13, 2012


Elisabeth A. Shumaker

Clerk of Court

IN RE: FCC 11-161
No. 11-9900
(No. 10-1 FCC 11-161)






, Circuit Judges.

Petitioner National Telecommunications Cooperative Association requests an
order staying implementation of reimbursement limits adopted by the FCC in its
“Transformation Order,” issued as part of FCC Order 11-161.1 The limits were
implemented by the FCC’s Wireline Competition Bureau in the “Regression Order.”
In the alternative, petitioner requests a writ of mandamus directing the FCC to rule
on its pending application for review before implementing the new reimbursement
limits. The FCC opposes the petition.

This case is a consolidation of some thirty cases seeking review of FCC
Order 11-161. Pursuant to this court’s Order Governing Motion Practice in the
Consolidated Proceedings, filings in support of the motion for stay are not permitted;
therefore, we recognize that the positions stated in the motion are likely those of
other petitioners and the intervenors aligned with the petitioners. Similarly, pursuant
to the order, defendants other than the FCC and the intervenors aligned with the
defendants who did not file separate responses are presumed not to support the

Appellate Case: 11-9900 Document: 01018896437 Date Filed: 08/13/2012 Page: 2

In deciding whether to grant a motion for a stay, this court evaluates the
following factors: “(1) whether the stay applicant has made a strong showing that [it]
is likely to succeed on the merits; (2) whether the applicant will be irreparably
injured absent a stay; (3) whether issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4) where the public interest lies.”
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). “A stay is not a matter of right, even
if irreparable injury might otherwise result. It is instead an exercise of judicial
discretion, and the propriety of its issue is dependent upon the circumstances of the
particular case.” Nken v. Holder, 556 U.S. 418, 433 (2009) (citation omitted)
(internal quotation marks and brackets omitted).

“[A] writ of mandamus is a drastic remedy, and is to be invoked only in
extraordinary circumstances.” In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186
(10th Cir. 2009) (internal quotation marks omitted). Petitioner’s request for
mandamus relief is “technically preclude[d]” by the availability of a remedy under
the Administrative Procedure Act, 5 U.S.C. § 706(1). Mt. Emmons Mining Co. v.
Babbitt, 117 F.3d 1167, 1170 (10th Cir. 1997). “[A]s a reviewing court, we must
‘compel agency action unlawfully withheld or unreasonably delayed.’” Id. (quoting
§ 706(1)). Such a mandatory injunction, however, “is essentially in the nature of
mandamus relief.” Id.

We have reviewed and considered the arguments and authorities presented by
both sides. In light of all of the circumstances, we are not convinced that petitioner
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Appellate Case: 11-9900 Document: 01018896437 Date Filed: 08/13/2012 Page: 3
has carried its “burden of showing that the circumstances justify an exercise of [the
court’s] discretion” to enter a stay in this matter. Nken, 129 U.S. at 433-34.

Entered for the Court


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