IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
          
METROPCS COMMUNICATIONS, INC., et al.,  ) 
         ) 
  Apelants,      ) 
         ) 
 v.        )  No. 11-1016 
         ) 
FEDERAL COMMUNICATIONS COMMISSION, ) 
         ) 
  Apele.      ) 
 
MOTION OF THE FCC TO DISMISS AND 
TO DEFER FILING OF THE RECORD 
 
 The Federal Communications Commission moves to dismiss this case 
because it was filed prematurely and the Court thus lacks jurisdiction.
1
  We also 
ask that the Court defer filing of the record until such time, if any, as it is clear that 
venue of this case will be in this Court. 
BACKGROUND 
 1.  In the order on review, Preserving the Open Internet, FCC No. 10-201 
(rel. Dec. 23, 2010) (Open Internet Order), the Commission adopted, after a 
notice-and-comment rulemaking proceeding, three high-level rules governing the 
provision of mass market broadband Internet access services by Internet Service 
Providers (ISPs).  The rules are:  (1) all ISPs must disclose their network 
                                                 
1
 The FCC is filing a similar motion involving precisely the same issues in Verizon 
v. FCC, No. 11-1014, and we suggest that the Court consider the two motions 
together. 
 
 
2
management practices and the terms and conditions of service; (2) fixed (i.e., 
wired) providers, such as cable modem ISPs, may not block any lawful Internet 
content, applications, services, or devices; for their part, wireless mobile providers 
(i.e., mobile telephone companies that provide broadband service) may not block 
Internet content or applications that compete with their own telephony services; 
and (3) fixed (as opposed to wireless mobile) providers may not unreasonably 
discriminate in transmitting lawful network traffic.  The rules thus apply to the 
interstate communications services of both fixed and mobile ISPs, albeit somewhat 
differently. 
On December 23, 2010, the Open Internet Order and the corresponding 
rules were released to the public.  Consistent with the Administrative Procedure 
Act, a summary of the Open Internet Order and the rules it promulgates will be 
published in the Federal Register.  See 5 U.S.C. § 552(a)(1)(D).   
 2.  Under 47 U.S.C. § 402(a), review of FCC orders is generally vested in 
the federal courts of appeals pursuant to the Hobbs Act, 28 U.S.C. §§ 2341 et seq.  
If petitions for review of an FCC order are filed in multiple courts of appeals 
within ten days after the order is entered, the cases are assigned to a single court 
through the judicial lottery procedure established under 28 U.S.C. § 2112(a).  As 
an exception to that general rule, a limited set of FCC decisions, including those 
denying or modifying FCC licenses, are reviewable exclusively in the D.C. Circuit 
 
 
3
by the filing of a notice of appeal under 47 U.S.C. § 402(b).  Sections 402(a) and 
402(b) are mutually exclusive; if the Court has jurisdiction over a party’s claim 
under Section 402(a), it cannot have jurisdiction under Section 402(b), and vice 
versa.  See Tribune Co. v. FCC, 133 F.3d 61, 66 n.4 (D.C. Cir. 1998). 
 MetroPCS has filed a notice of appeal in advance of the Open Internet 
Order’s publication in the Federal Register.  The notice of appeal asserts both that 
the time to seek judicial review of the order began on its release and that this Court 
has exclusive jurisdiction to review the Order under 47 U.S.C. § 402(b).  If the 
Court accepts MetroPCS’s assertion and challenges are filed in other circuits, 
either the Order would be subject to review simultaneously in multiple courts, or 
all other potential litigants would be required to accede to MetroPCS’s selection of 
a forum for judicial review of the industry-wide rules. 
ARGUMENT 
 1.  The Court should dismiss MetroPCS’s notice of appeal because it was 
filed prior to publication of the Open Internet Order in the Federal Register and is 
thus jurisdictionally barred. 
Congress established in 47 U.S.C. § 405(a) that the time for either filing a 
petition for review under Section 402(a) or taking an appeal under Section 402(b) 
“shall be computed from the date upon which the Commission gives public notice 
of the order, decision, report, or action complained of.”  In the case of a petition for 
 
 
4
review, the Hobbs Act provides that “[a]ny party aggrieved by [a] final order may, 
within 60 days after its entry, file a petition to review the order in the court of 
appeals wherein venue lies.”  28 U.S.C. § 2344.  In the case of a notice of appeal, 
the notice must be filed “within thirty days from the date upon which public notice 
is given of the decision or order complained of.”  47 U.S.C. § 402(c).   
Congress thus provided two windows within which to file judicial 
challenges to FCC orders, both of which open upon “public notice” or “entry.”  
“Public notice” of an order and its “entry” are one and the same because “[e]ntry of 
the agency order occurs on the date the Commission gives public notice of the 
order” under its own rules.  Small Bus. in Telecomms. v. FCC, 251 F.3d 1015, 
1024 (D.C. Cir. 2001); see also Adams Telcom, Inc. v. FCC, 997 F.2d 955, 957 
(D.C. Cir. 1993) (this Court “has encouraged administrative agencies, whenever 
possible, to specify – by regulation or in their notices to persons subject to agency 
action – the beginning of the relevant judicial review period”). 
“For all documents in notice and comment … rulemaking proceedings” – the 
type of proceeding at issue here – FCC Rule 1.4(b)(1) defines “public notice” to 
mean “the date of publication in the Federal Register.”  47 C.F.R. § 1.4(b)(1).  The 
filing window for challenging the Open Internet Order therefore does not open 
until the Order is published in the Federal Register.  Prior to publication, the 
judicial review statutes erect “a jurisdictional bar to judicial consideration of 
 
 
5
petitions filed prior to entry of the agency orders to which they pertain.”  Western 
Union Tel. Co. v. FCC, 773 F.2d 375, 378 (D.C. Cir. 1985).  Put differently, an 
appeal filed prior to Federal Register publication of the challenged order is 
“incurably premature.”  Small Bus. in Telecomms., 251 F.3d at 1024.  That settled 
principle requires dismissal of MetroPCS’s notice of appeal at this time because it 
was filed too early, although MetroPcs may pursue a timely challenge to the Open 
Internet Order after its publication. 
MetroPCS recognizes the effect of Rule 1.4(b)(1), but suggests that this case 
falls under a different rule, Rule 1.4(b)(2).  Notice of Appeal at 3-4.  That 
contention is based on a note to Rule 1.4(b)(1) stating that public notice for 
“[l]icensing and other adjudicatory decisions with respect to specific parties that 
may be associated with or contained in rulemaking documents” is determined 
under Rule 1.4(b)(2).  Note to Paragraph (b)(1) (emphasis added).  Rule 1.4(b)(2) 
defines the date of public notice “for non-rulemaking documents” to be the date of 
release rather than Federal Register publication.   
The contention that the Open Internet Order constitutes a “licensing or other 
adjudicatory decision[] with respect to specific parties” is untenable.  First, as the 
Commission explained when it promulgated the Note to Paragraph (b)(1), the Note 
creates an exception from the general public notice rule for “individual licensing 
decisions and waivers as to specific parties.”  Amendment of Section 1.4 of the 
 
 
6
Commission’s Rules, 15 FCC Rcd 9583, 9584 ¶4 (2000) (emphasis added).  The 
Open Internet Order plainly falls outside that description.  It establishes general 
rules that apply to all fixed and wireless mobile ISPs, not to any specific ISP.  The 
Order does not even discuss its application to any specific ISP.  Nor, in light of the 
numerous ISPs that provide service throughout the country, can the Order be 
viewed as addressing such a small set of identifiable ISPs (using wireless or any 
other technology) that it can properly be described as implicitly pertaining only to 
specific parties.
2
   
Second, the Open Internet Order is not a “licensing or other adjudicatory 
decision[].”  It is a pure rulemaking decision of general applicability that does not 
adjudicate any individual license matter and therefore falls within Rule 1.4(b)(1) 
and not Rule 1.4(b)(2). 
For both of those reasons, this case is governed by Rule 1.4(b)(1), under 
which the filing window does not open until Federal Register publication.  
MetroPCS’s notice of appeal thus is fatally premature and must be dismissed. 
2.  The Court should defer the filing of the record of this case until such 
time, if any, that it has been determined that venue will be in this circuit.  If the 
                                                 
2
 Even if the Court were to find that the Note to Rule 1.4(b)(1) creates ambiguity, 
the interpretation set forth in this motion is at the very least reasonable and 
therefore warrants deference.  See Chase Bank USA v. McCoy, No. 09-329, slip op. 
at 12 (S. Ct. Jan. 24, 2011) (Court will “defer to an agency’s interpretation of its 
own regulation, advanced in a legal brief, unless that interpretation is plainly 
erroneous or inconsistent with the regulation”) (quotation marks omitted).   
 
 
7
Court grants the motion to dismiss, no record will need to be filed.  Even if the 
Court does not dismiss, given the possibility of a forum-selection lottery under 28 
U.S.C. § 2112 and possibly additional litigation concerning the proper venue for 
this case in the event that petitions for review of the Open Internet Order are filed 
by other parties, it is the prudent course to defer the filing of the record until it is 
clear whether the case will be heard here.   
CONCLUSION 
 For the foregoing reasons, the Court should dismiss this case for lack of 
jurisdiction and in the meantime defer filing of the record.  
       Respectfully submitted, 
         /s Joel Marcus 
       Austin C. Schlick 
       General Counsel 
 
       Richard K. Welch 
       Acting Associate General Counsel 
 
       Joel Marcus 
       Counsel 
       Federal Communications Commission 
       445 12
th
 Street, S.W. 
       Washington, D.C.  20554 
       (202) 418-1745 
 
January 28, 2011 
 
IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
 
MetroPCS Communications, Inc., et al. ) 
Appellants,     ) 
       ) 
v.        )  No. 11-1016 
       ) 
Federal Communications Commission, ) 
Appellee.     ) 
 
CERTIFICATE OF SERVICE 
 
I, Joel Marcus, hereby certify that on January 28, 2011, I electronically filed the 
foregoing Motion of the FCC to Dismiss and to Defer Filing of the Record with the 
Clerk of the Court for the United States Court of Appeals for the D.C. Circuit by 
using the CM/ECF system.  Counsel for Appellants listed below, who are 
registered CM/ECF users, will be served by the CM/ECF system. 
 
  
Stephen Kinnaird 
Andrew Morentz  
Paul, Hastings, Janofsky & Walker 
875 15
th
 Street, N.W. 
Washington, D.C.  20005 
 
 
  
 
 
/s/ Joel Marcus 
 
Joel Marcus