USCA Case #11-1272 Document #1333762 Filed: 10/06/2011 Page 1 of 9
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
In re: inContact, Inc.,
OPPOSITION OF FEDERAL COMMUNICATIONS
COMMISSION TO PETITION FOR WRIT OF MANDAMUS
The Federal Communications Commission ("FCC" or "Commission")
opposes the petition for a writ of mandamus filed by inContact, Inc. inContact
asks the Court to compel final agency action on an application for review of a staff
decision denying inContact's challenge to an invoice from the Universal Service
Administrative Company ("USAC" or "Administrator").1
inContact has failed to carry its heavy burden to justify the extraordinary
remedy of mandamus. When inContact sought mandamus relief, its application for
review had been ripe for decision at the Commission for less than a year. This
does not constitute unreasonable delay by the agency much less "egregious"
delay warranting the drastic remedy of mandamus. Since that time, moreover, the
agency's staff has circulated to the FCC Commissioners a draft order addressing
1 See Universal Service Contribution Methodology Request for Review by
inContact, Inc. of a Decision by Universal Service Administrator
, 25 FCC Rcd
4739 (WCB 2010) ("Bureau Order
") (attached as Exhibit F to the Petition for
USCA Case #11-1272 Document #1333762 Filed: 10/06/2011 Page 2 of 9
inContact's application for review. Under these circumstances, mandamus is
1. Section 254 of the Communications Act, 47 U.S.C. 254, requires
telecommunications carriers to contribute to the support mechanisms established
by the Commission to preserve and advance universal service. A key goal of
universal service "is to ensure affordable telecommunications services to
consumers living in high-cost areas, low-income consumers, eligible schools and
libraries, and rural health care providers." In the Matter of Comprehensive Review
of the Universal Service Fund Management, Administration, and Oversight,
and Order, 22 FCC Rcd 16372, 16373 2 (2007). Under the Commission's rules,
USAC administers universal service support mechanisms that are paid out of the
Universal Service Fund ("USF"), with payments totaling approximately $8 billion
annually.2 See generally
47 C.F.R. 54.701-54.705. The Administrator's duties
include "billing contributors, collecting contributions to the universal service
support mechanisms, and disbursing universal service support funds" to
telecommunications carriers eligible to receive universal service support. 47
2 See http://www.usac.org/about/universal-service/fund-facts/fund
USCA Case #11-1272 Document #1333762 Filed: 10/06/2011 Page 3 of 9
As a provider of telecommunications services, inContact is obligated to
contribute to the USF. Petition for Mandamus ("Pet.") at 4; see
254(d). On January 23, 2009, USAC issued an invoice billing inContact for
$316,447.38 in required USF contributions. Pet. Exh. A.3 On April 13, 2009,
inContact filed with the Commission a "Petition for Special Relief and Waiver" in
which the company disputed $298,410.50 of the charges as "untimely" and asked
the Commission to "instruct USAC to remove such amounts from any future
USAC invoice." Pet. Exh. C at 2.
2. The Commission's Wireline Competition Bureau ("Bureau") denied
inContact's request. The Bureau found that inContact's petition was procedurally
defective because, under the Commission's rules, any request for review of a
USAC decision is required to be filed "with the Commission within sixty days of
the decision," i.e.
, by March 24, 2009, in this instance. Bureau Order
, Pet. Exh. F
at 2 (citing 47 C.F.R. 54.720(a)).4 inContact filed its request for review on
April 13, 2009, "20 days late." Ibid
. The Bureau accordingly denied the request
for review as untimely. Id
3 The invoice was issued to UCN, Inc., the name under which inContact did
business. Pet. Exh. B (Declaration of Kimm Partridge).
4 "An affected party requesting review of an Administrator decision by the
Commission . . . shall file such request within sixty (60) days of the issuance of the
decision by . . . the Administrator." 47 C.F.R. 54.720(a).
USCA Case #11-1272 Document #1333762 Filed: 10/06/2011 Page 4 of 9
3. On June 7, 2010, inContact applied to the full Commission for review of
the Bureau Order
. inContact contended that the Bureau erred in finding that the
company's request for review of USAC's invoice was untimely. Pet. Exh. B at 2.
inContact further urged the Commission to "review the Bureau's Order de novo
find it "invalid and of no effect" and "then take up and consider the merits of
inContact's Petition, considering the substance of its requests." Ibid. See also id.
The company did not ask the Commission to stay the effect of the Bureau
while it considered inContact's application for review.5
The FCC sought public comment on the application for review, with initial
comments due by July 26, 2010, and reply comments due by August 9, 2010. See
Public Notice, 25 FCC Rcd 8171 (WCB June 25, 2010). No comments were
On July 29, 2011, eleven months after the pleading cycle closed on its
application for review, inContact filed with the Court a petition for a writ of
mandamus compelling the FCC to act on its application for review "within 90
days," or, in the alternative, "to develop a schedule for resolution of the pending
controversy within a reasonable time." Pet. at 1-2.
47 C.F.R. 1.102(b)(3) ("If an application for review of . . . action [taken
pursuant to delegated authority] is filed, . . . the Commission may in its discretion
stay the effect of any such action until its review of the matters at issue has been
USCA Case #11-1272 Document #1333762 Filed: 10/06/2011 Page 5 of 9
On September 30, 2011, Commission staff circulated to the FCC
Commissioners for their vote a draft order addressing inContact's application for
review. To date, inContact has failed to pay the disputed amount (approximately
1. The Commission is "entitled to considerable deference in establishing a
timetable for completing its proceedings." Cutler v. Hayes
, 818 F.2d 879, 896
(D.C. Cir. 1987) ("Cutler
"). The "threshold a litigant must pass to obtain judicial
review of ongoing agency proceedings [is] a high one." Telecomm. Research &
Action Center v. FCC
, 750 F.2d 70, 79 (D.C. Cir. 1984) ("TRAC
"). In the context
of a claim of unreasonable delay in an ongoing proceeding, the Court will
intervene only where "the agency's delay is . . . egregious." Id.
"[M]andamus is `drastic'; it is available only in `extraordinary situations'; it is
hardly ever granted; those invoking the court's mandamus jurisdiction must have a
`clear and indisputable' right to relief; and even if the plaintiff overcomes all these
hurdles, whether mandamus relief should issue is discretionary." In re Cheney
406 F.3d 723, 729 (D.C. Cir. 2005) (en banc). Here, inContact has failed to
establish that this is "one of the exceptionally rare cases" in which the
extraordinary remedy of mandamus is warranted. In re Barr Laboratories, Inc.
930 F.2d 72, 76 (D.C. Cir.), cert. denied
, 502 U.S. 906 (1991).
USCA Case #11-1272 Document #1333762 Filed: 10/06/2011 Page 6 of 9
2. inContact is not entitled to extraordinary relief because it has failed to
show any unreasonable delay by the agency, much less a delay that is "so
egregious" as to warrant mandamus. TRAC
, 750 F.2d at 79. In assessing claims of
agency delay, "the time agencies take to make decisions must be governed by a
`rule of reason.'" Id
. at 80 (citation omitted). Here, as inContact recognizes,
"Congress has not adopted a specific timeframe within which the Agency must act
on Applications for Review" (Pet. at 21), and that might "supply content" for the
rule of reason in this case. TRAC
, 750 F.2d at 80 (citation omitted).
Moreover, "[a]n agency has broad discretion to set its agenda and to first
apply its limited resources to the regulatory tasks it deems most pressing." Cutler
818 F.2d at 896; see also TRAC
, 750 F.2d at 80 (considering "the effect of
expediting delayed action on agency activities of a higher or competing priority.").
In this case, fourteen months is not an unreasonable amount of time for the agency
to act on inContact's application for review. Nor does the importance of the "USF
program" in general (see
Pet. at 25), mean that the agency's review of a decision
denying a challenge to a portion of a single USAC invoice, which the challenging
party has not yet paid, must be prioritized over other pressing matters before the
A grant of mandamus is doubly unwarranted because, on September 30,
2011, the agency's staff presented to the Commissioners a proposed order
USCA Case #11-1272 Document #1333762 Filed: 10/06/2011 Page 7 of 9
addressing inContact's pending application for review. The agency's
consideration of inContact's application for review is proceeding apace and so
there is no need for the Court to intervene to "spur" (Pet. at 4) the FCC's decision-
making in this proceeding. Once the Commission has issued a final order, if
inContact is aggrieved, it may timely seek judicial review of that order.
3. Citing 47 C.F.R. 54.724, inContact asserts that "FCC rules provide a
baseline expectation for how long it should take the Agency to issue a written
decision 90 days." Pet. at 17. Not so. Rule 54.724(b) applies only to cases in
which the Commission is reviewing "an Administrator decision" (i.e.
, a decision
by USAC), 47 C.F.R. 54.724(b); it does not impose (or imply) a time limit for
Commission action on applications to review a decision of a subordinate Bureau.
Moreover, the rule by its terms applies to appeals that are properly
Commission, 47 C.F.R. 54.724(a). Here, the Bureau found that inContact's
appeal of the invoice was procedurally defective. Bureau Order
, Pet. Exh. F at 1.
inContact's reliance on Rule 54.724 is thus unavailing.
inContact also argues that issuance of a writ of mandamus is warranted
because the company is assertedly "in a perpetual state of uncertainty as to its USF
payment obligations." Pet. at 11. The Bureau Order
, however, was "effective
upon release" (47 C.F.R. 1.102(b)(1)); and although the Commission, in its
discretion, may stay the effect of action taken under delegated authority while it
USCA Case #11-1272 Document #1333762 Filed: 10/06/2011 Page 8 of 9
considers an application for review of that action (47 C.F.R. 1.102(b)(3)), the
Commission did not do so here nor did inContact request such relief. Thus,
inContact's payment obligation is clear.
In sum, there is no reason for this Court to intrude into the Commission's
allocation of its scarce resources by ordering the agency to expedite its disposal of
an application for review involving inContact's challenge to a portion of its
January 23, 2009 invoice from USAC.
For the above reasons, the Court should deny inContact's petition for writ of
Austin C. Schlick
Richard K. Welch
/s/ Pamela L. Smith
Pamela L. Smith
October 6, 2011
USCA Case #11-1272 Document #1333762 Filed: 10/06/2011 Page 9 of 9
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
In re: inContact, Inc., et al., Petitioner,
Federal Communications Commission, Respondent.
CERTIFICATE OF SERVICE
I, Pamela L. Smith, hereby certify that on October 6, 2011, I electronically
filed the foregoing Opposition of Federal Communications Commission to
Petition for Writ of Mandamus with the Clerk of the Court for the United
States Court of Appeals for the D.C. 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.
Jacqueline R. Hankins
Jonathan Soukias Marashlian
Helein & Marashlian, LLC
1420 Spring Hill Road
McLean, VA 22102
Counsel for: inContact, Inc.
/s/ Pamela L. Smith