BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTICIRCUIT LITIGATION Petitions for Review of the Federal ) Communications Commission’s ) In the Matter of Preserving the Open ) Internet, GN Docket No. 09-191; ) MDL No.________ Broadband Industry Practices, ) WC Docket No. 07-52, Report and ) Order, 25 FCC Rcd 17905 (2010) ) NOTICE OF MULTICIRCUIT PETITIONS FOR REVIEW Pursuant to the provisions of 28 U.S.C. § 2112(a) and the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, the Federal Communications Commission submits this Notice of Multicircuit Petitions filed for review of In the Matter of Preserving the Open Internet, GN Docket No. 09-191; Broadband Industry Practices, WC Docket No. 07-52, Report and Order, 25 FCC Rcd 17905 (2010) (“Open Internet Order”). A summary of the Open Internet Order was published in the Federal Register on September 23, 2011. See 76 Fed. Reg. 59192 (2011). As required by Panel Rule 25.2, we submit with this notice: (1) a schedule (Attachment A) listing those petitions for review filed in the circuit courts of appeals within ten days after the issuance of the agency order and received by the agency 2 within that time period; 1 (2) copies of each petition (Attachment B); and (3) the order the parties are appealing (Attachment C). In accordance with Panel Rule 25.3, as indicated in the attached certificate of service, the FCC is serving this notice on the clerks of the courts where petitions for review have been filed as well as on counsel for all parties. Respectfully submitted, Jacob M. Lewis Associate General Counsel /s/ Richard K. Welch Richard K. Welch Deputy Associate General Counsel Joel Marcus Counsel Federal Communications Commission 445 12 th Street, S.W. Washington, D.C. 20554 Phone: (202) 418-7225 Fax: (202) 418-2819 October 5, 2011 1 Pursuant to 47 U.S.C. § 402(a), 28 U.S.C. §§ 2342 and 2344, and the FCC’s rules, the period for seeking review in a notice-and-comment rulemaking proceeding is calculated from the date of publication of the rule in the Federal Register. See 47 C.F.R. §§ 1.4(b), 1.13(a)(1) & (2). In this case, the Open Internet Order was issued on September 23, 2011, and the ten-day period for seeking review contemplated in 28 U.S.C. § 2112(a) thus ended on October 3, 2011. ATTACHMENT A 1. Issuance date of the relevant agency order: September 23, 2011 2. Cases filed: Free Press v. FCC & USA First Circuit No. 11-2123 Filed: September 28, 2011 Received by FCC: September 29, 2011 People’s Production House v. FCC & USA Second Circuit No. 11-3905 ag Filed: September 26, 2011 Received by FCC: September 28, 2011 Media Mobilizing Project v. FCC & USA Third Circuit No. 11-3627 Filed: September 26, 2011 Received by FCC: September 28, 2011 Mountain Area Information Network v. FCC & USA Fourth Circuit No. 11-2036 Filed: September 26, 2011 Received by FCC: September 28, 2011 Access Humboldt v. FCC & USA Ninth Circuit No. 11-72849 Filed: September 26, 2011 Received by FCC: September 28, 2011 Verizon v. FCC D.C. Circuit No. 11-1355 Filed: September 30, 2011 Received by FCC: September 30, 2011 2 Verizon v. FCC D.C. Circuit No. 11-1356 Filed September 30, 2011 Received by FCC: September 30, 2011 ATTACHMENT B Case: 11-2123 Document: 00116267344 Page: 1 Date Filed: 09/28/2011 Entry ID: 5583329 United States Court of Appeals For the First Circuit No. 11-2123 Agency No. GN DIet. No. 09-191; WC Dkt. No. 07-52 FREE PRESS Petitioner v. FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES Respondents CASE OPENING NOTICE Issued: September 28,2011 .." C) m o ..." G} ["1"\ ...... ~(1 ?l>Q J:.>" I A petition for review was received and docketed today by the clerk of the court of appeals in compliance with Fed. R. App. P. 15. A copy of the petition is being transmitted to counsel for the respondent with this notice. The administrative record, or certified list of all documents, must be filed by . Fed. R. App. P. 17. A notice advising you of the due date for filing your brief, and, if necessary, an appendix, will be sent upon the filing ofthe administrative record, or certified list, in this court. An appearance form should be completed and returned immediately by any attorney who wishes to file pleadings in this court. 1st Cir. R. 12.0(a) and 46.0(a)(2). Petitioner must file an appearance form by October 12,2011 in order for it to be deemed timely filed. Pro se parties are not required to file an appearance form. Any attorney who has not been admitted to practice before the First Circuit Court ofAppeals must submit an application and fee for admission with the appearance form. 1st Cir. R. 46.0(a)(2). Dockets, opinions, rules, forms, attorney admission applications, the court calendar and general notices can be obtained from the court's website at www.caLuscourts.gov. Your attention is called specifically to the notice(s) listed below: • Notice to Counsel and Pro Se Litigants Case: 11-2123 Document: 00116267344 Page: 2 Date Filed: 09/28/2011 Entry ID: 5583329 If you wish to inquire about your case by telephone, please contact the case manager at the direct extension listed below. Margaret Carter, Clerk UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT John Joseph Moakley United States Courthouse 1 Courthouse Way, Suite 2500 Boston, MA 02210 Case Manager: Todd Smith - (617) 748-4273 UNITED STATES OF Al'vIERlCA, '" ..,., ~\ c:; '"o -" C> "'.." ~o ,.,r> ~ n GO c= Z """ e ("'J m (/,) 0 rn -rt -0 GJ N~-r; co [TIn ;;:li)O 1) :>- r ("':) oF." lIl\'$ c: 0 z Ul .1'0 m r 9126/2011 In the UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ZOiI SEP 28 P 4: 02 PEOPLE'S PRODUCTION HOUSE ) ) Petitioner, ) ) ) v. ) ) ) No. _ FEDERAL COMMUNICATIONS COMMISSION) ) and ) ) UNITED STATES OF AMERICA ) ) Respondents. ) PETITION FOR REVIEW People's Production House hereby petitions this Court for review of a Federal Communications Commission ("FCC") decision, Preserving the Open Internet (Report and Order), 25 FCCRcd 17905 (2010) adopted on December 23, 2010. This decision became final on September 23, 2011 upon publication in the Federal Register. 76 Fed. Reg. 59192 (September 23, 2011). The decision attempts to preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression. A copy of the order is attached to this petition. Pursuant to 47 USC §402(a), 28 USC §§2342(1) and 2344, Petitioner seeks review ofthe FCC's adoption ofmles that, inter alia, differentiate between access to broadband Internet via mobile platforms and access to broadband Internet via fixed platforms. This decision violates the Communications Act of 1934 and other statutes, and is arbitrary and capricious, an abuse of discretion, and otherwise contrary to law. Venue in this Court is proper under 28 USC §2343 because People's Production House's principal place of business is located at 666 Broadway, Suite 500, New York, NY 10012. Petitioner requests this Court hold unlawful and set aside or vacate such aspects of the order as necessary, remand the matter to the FCC for further proceedings, and order all such other relief as the Court may find proper. Respectfully Submitted, Is/Andrew Jay Schwartzman Andrew Jay Schwartzman Media Access Project Suite 1000 1625 K Street, NW Washington, DC 20006 (202) 232-4300 andys@mediaaccess.org Counsel for Petitioner September 26, 2011 Case: 11-3627 ORIGINAL Document: 003110666675 Page: 1 Date Filed: 09/26/2011 C~;tt£?..n9 f()'fSO. liZ RECEIVED ... SEP 2 6 2011 In the UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT U.S.G.A. - 3rd MEDIA MOBILIZING PROJECT, ) ) Petitioner, ) ) ) v. ) ) ) FEDERAL COMMUNICATIONS COMMISSION) ) and ) ) UNITED STATES OF AMERlCA ) ) Respondents. ) PETITION FOR REVIEW \lil) -t'! r--> -." S'2 (""') rr; (/) 0 rn --" -0 Q No. N ~""'1 co mO A/O 1) » r (") -E" (lJlll c:: 0 :z (;I) r:D F Media Mobilizing Project hereby petitions this Court for review ofa Federal Communications Commission ("FCC") decision, Preserving the Open Internet (Report and Order), 25 FCCRcd 17905 (2010) adopted on December 23, 2010. This decision became final on September 23,2011 upon publication in the Federal Register. 76 Fed. Reg. 59192 (September 23, 2011). The decision attempts to preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression. A copy of the order is attached to this petition. Case: 11-3627 Document: 003110666675 Page: 2 Date Filed: 09/26/2011 Pursuant to 47 USC §402(a), 28 USC §§2342(1) and 2344, Petitioner seeks review ofthe FCC's adoption of rules that, inter alia, differentiate between access to broadband Internet via mobile platfonns and access to broadband Internet via fixed platforms. This decision violates the Communications Act of 1934 and other statutes, and is arbitrary and capricious, an abuse of discretion, and otherwise contrary to law. Venue in this Court is proper under 28 USC §2343 because the Petitioner has its principal office at 4233 Chestnut Street, Philadelphia, PA 19104. Petitioner requests this Court hold unlawful and set aside or vacate such aspects of the order as necessary, remand the matter to the FCC for further proceedings, and order all such other relief as the Court may find proper. Respectfully Submitted, Andrew Ja chw man Media Ac ess Pro'ect Suite 1000 1625 K Street, NW Washington, DC 20006 (202) 232-4300 andys@mediaaccess.org Counsel for Petitioner September 26, 2011 ~"Appeal: 11-2036 Document: 1 Date Filed: 09/27/2011 Page: 1 of 1 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2036 (10-201) MOUNTAIN AREA INFORMATION NETWORK Petitioner v. zm I SEP 28 P 1.\: 0 I FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA Respondents This case has been opened in this court. l()riginati l1 g. C()l:lrt1F'~derlllgolTIlTIl:ll1i~a.tiol1sgOlTImission I=O=ri=g=in=at=in=g=C=a=s=e=J\T=.~=....=b=er=..==110~201. .. . I])ate Petiti()n Filed:109/~6/~911 li'-"'pe=t=it=io=n=er=cs=)=======IMountain Area Information Ne!work IAppellate Case Number 111-2036 l=c=as=e-M=a=n-a-ge-r===--=I~~:-~~t2::a~ey FCC ®FFICg OF GENEPIALe~lUNS§L In the UNITED STATES COURT OF APPEALS 2011 SEP 28 P 1.+= 0'1 FOR THE FOURTH CIRCUIT MOUNTAIN AREA INFORMATION NETWORK) ) Petitioner, ) ) ) v. ) ) ) No. _ FEDERAL COMMUNICATIONS COMMISSION) ) and ) ) UNITED STATES OF AMERICA ) ) Respondents. ) PETITION FOR REVIEW Mountain Area Information Network hereby petitions this Court for review of a Federal Communications Commission ("FCC") decision, Preserving the Open Internet (Report and Order), 25 FCCRcd 17905 (2010) adopted on December 23, 2010. This decision became final on September 23, 2011 upon publication in the Federal Register. 76 Fed. Reg. 59192 (September 23, 2011). The decision attempts to preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression. A copy of the order is attached to this petition. Pursuant to 47 USC §402(a), 28 USC §§2342(1) and 2344, Petitioner seeks review of the FCC's adoption of lUles that, inter alia, differentiate between access to broadband Internet via mobile platforms and access to broadband Internet via fixed platforms. This decision violates the Communications Act of 1934 and other statutes, and is arbitrary and capricious, an abuse of discretion, and otherwise contrary to law. Venue in this Court is proper under 28 USC §2343 because Petitioner's principal place of business is located at 34 Wall Street, Suite 407, Asheville, NC 28801. Petitioner requests this Court hold unlawful and set aside or vacate such aspects of the order as necessary, remand the matter to the FCC for further proceedings, and order all such other relief as the Court may find proper. Respectfully Submitted, Is/Andrew Jay Schwartzman Andrew Jay Schwartzman Media Access Project Suite 1000 1625 K Street, NW Washington, DC 20006 (202) 232-4300 andys@mediaaccess.org Counsel for Petitioner September 26, 2011 ZOlI SEP 28 P 4: 02 Page: 1 of 3 Fee elFflC5 OF GENERALC~UNs~t OktEntry: 1-110:790706309/26/2011 Office ofthe Clerk United States Court of Appeals for the Ninth Circuit Post Office Box 193939 San Francisco, California 94119-3939 415-355-8000 Case: 11-72849 Molly C. Dwyer Clerk ofComt September 26,2011 No.: 11-72849 Short Title: Access Humboldt v. FCC, et al Dear Petitioner/Counsel Your Petition for Review has been received in the Clerk's office ofthe United States Court ofAppeals for the Ninth Circuit. The U.S. Court ofAppeals docket number shown above has been assigned to this case. You must indicate this Court ofAppeals docket number whenever you communicate with this court regarding this case. The due dates for filing the parties' briefs and otherwise perfecting the petition have been set by the enclosed "Time Schedule Order," pursuant to applicable FRAP rules. These dates can be extended only by court order. Failure ofthe petitioner to comply with the time schedule order will result in automatic dismissal of the petition. 9th Cir. R. 42-1. Case: 11-72849 09/26/2011 10: 7907063 OktEntry: 1-1 Page: 2 of 3 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FILED SEP 26 2011 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS ACCESS HUMBOLDT, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION; UNITED STATES OF AMERICA, Respondents. No. 11-72849 Federal Communications Commission TIME SCHEDULEORDE~ 1] o ...., Gl mil i*.Cl :;;IliO > r The parties shall meet the following time schedule. Tue., October 4, 2011 Mediation Questionnaire due. Ifyour registration for Appellate ECF is confirmed after this date, the Mediation Questionnaire is due within one day of receiving the email from PACER confirming your registration. Thu., December 15, 2011 Petitioner's opening briefand excerpts ofrecord shall be served and filed pursuant to FRAP 32 and 9th Cir. R.32-1. Mon., January 16,2012 Respondents' answering briefand excerpts ofrecord shall be served and filed pursuant to FRAP 32 and 9th Cir. R. 32-1. The optional petitioner's reply brief shall be filed and served within fourteen days of service of the respondents' brief, pursuant to FRAP 32 and 9th Cir. R. 32-1. Case: 11-72849 09/26/2011 10: 7907063 OktEntry: 1-1 Page: 3 of 3 Failure of the petitioner to comply with the Time Schedule Order will result in automatic dismissal of the appeal. See 9th Cir. R. 42-1. FOR THE COURT: Molly C. Dwyer Clerk of Court Holly Crosby Deputy Clerk In the UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ACCESS HUMBOLDT, ) ) Petitioner, ) ) ) v. ) ) ) No. _ FEDERAL COMMUNICATIONS COMMISSION) ) and ) ) UNITED STATES OF AMERICA ) ) Respondents. ) PETITION FOR REVIEW Access Humboldt hereby petitions this Court for reVIew of a Federal Communications Commission ("FCC") decision, Preserving the Open Internet (Report and Order), 25 FCCRcd 17905 (2010) adopted on December 23, 2010. This decision became final on September 23, 2011 upon publication in the Federal Register. 76 Fed. Reg. 59192 (September 23, 2011). The decision attempts to preserve the Internet as an open platform for innovation, investment, job creation, economic growth, competition, and free expression. A copy of the order is attached to this petition. Pursuant to 47 USC §402(a), 28 USC §§2342(1) and 2344, Petitioner seeks review of the FCC's adoption of rules that, inter alia, differentiate between access to broadband Internet via mobile platforms and access to broadband Internet via fixed platforms. This decision violates the Communications Act of 1934 and other statutes, and is arbitrary and capricious, an abuse of discretion, and otherwise contrary to law. Venue in this Court is proper under 28 USC §2343 because the Petitioner has its principal office in Eureka, CA. Petitioner requests this Court hold unlawful and set aside or vacate such aspects of the order as necessary, remand the matter to the FCC for further proceedings, and order all such other relief as the Court may find proper. Respectfully Submitted, Is/Andrew Jay Schwartzman Andrew Jay Schwartzman Media Access Project Suite 1000 1625 K Street, NW Washington, DC 20006 (202) 232-4300 andys@mediaaccess.org Counsel for Petitioner September 26, 2011 In the UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ACCESS HUMBOLDT ) ) Petitioner, ) ) ) v. ) ) FEDERAL COMMUNICATIONS COMMISSION) ) ~d) ) UNITED STATES OF AMERlCA, ) ) Respondents. ) CORPORATE DISCLOSURE STATEMENT Pursu~tto Rule 26.1 ofthe Federal Rules ofAppellate Procedure, Access Humboldt respectfully submits this Corporate Disclosure Statement. Access Humboldt is a national, nonpartisan, nonprofit organization using education, organizing, and advocacy to increase informed public participation in crucial media policy debates. Access Humboldt has no parent corporations, and no publicly-held company has a 10% or greater ownership in Access Humboldt. September 26, 2011 Respectfully Submitted, Is/Andrew Jay Schwartzman Andrew Jay Schwartzman Media Access Project Suite 1000 1625 K Street, NW Washington, DC 20006 (202) 232-4300 andys@mediaaccess.org Counsel for Petitioner 1776 K STREET NW . WASHINGTON, DC 20006 PHONE 202.719.7000 FAX 202.719.7049 September 30, 2011 . r"eFI FCC ;;'r CE OFGENE~ALGIlJUNSEL 201! SEP 3q R ]: 08 , J Helgi C. Walker 202.719.7349 hwalker@wileyrein.com 7925 JONES BRANCH DRIVE McLEAN, VA 22102 PHONE 703.905.2800 FAX 703.905.2820 www.wi[eyrein.com VIA HAND DELIVERY Austin Schlick Federal Communications Commission Office ofthe General Counsel Room8-A741 445 12th Street, SW Washington, DC 20554 Re: .Verizon v. FCC, Case No. 11-_ (D.C. Cir.): Notice of Appeal & Protective Petition for Review D~sP~.. Enclosed is a service copy of Verizon's Notice of Appeal of the final orderof the Federal Communications Commission captioned In the Matter of Preserving the Open Internet; Broadband Industry Practices, Report and Order, GN Docket No. 09-191, we Docket No. 07,"52 (reI. Dec. 23,2010) ("Order"). As explained in the Notice 'of Appeal, "jurisdiction to review Verizon's challenge to the entire Order lies exclusively with [the D.C. Circuit] under Section 402(b)(5)." Notice ofAppeal at 3. Nevertheless, in an abundance ofcaution, Verizon.also filed with the D.C. Circuit a Protective Petition for Review of the Order pursuant to 47.U.S.C. § 402(a). Also enclosed is a date-stamped copy of the Protective Petition for Review. . The Protective Petition for Review should be included in any judicial lottery conducted pursuant to 28 U.S.C. §2112(a), in the event that one or morep~titionsfor review ofthe Order are filed in courts other than the D.C. Circuit. Consistent with Verizon's position that jurisdiction to review its challenge to the Order lies exclusively in the D.C. Circuit under Section 462(b)(5), neither Verizon's filingofa Protective Petition for Review nor its service upon you for inClusion in any judicial lottery should be construed as a concession that Section 402(a) is applicable here.. Austin Schlick September 30,2011 Page 2 Sincer ly yours, /"\~ -\AItt1Lf~ Helgi Enclosures tmlTED soots COURT OF APPEALS . FOR DISTRICT Of COLUMBIA CIRCUIT .. .. • 1776 K STREET NW WASHINGTON, DC 20006 PHONE 202.719,7000 FAX 202,719.7049 -t:1::. en' u;q: Q\i, k\p,?..EAl i UNITEDStl!it~~WJI,!" 0\A Q\f\CUlT . fOR DISTRICT OF OO\.UMIfl . SEP SO 1.011 &l;Cily~gnl AlE0 SEP 30 2011 CLERK Helgi C. a er 202.719.7349 hwalker@wileyrein.com 7925 JONES BRANCH DRIVE McLEAN, VA 22102 PHONE 703.905.2800 FAX 703,905.2820 . www.wileyrein.com BY HAND DELIVERY Mark J. Langer Clerk, United States Court ofAppeals for the District ofColumbia Circuit 333 Constitution Avenue,NW Room 5523 Washington, DC 20001 Re: Verizon v. FCC Dear Mr. Langer: . On behalf of Verizon, enclosed please find an original and four copies of a Notice ofAppeal of the final order ofthe Federal Communications Commission captioned In the Matter of Preserving the Open Internet; .Broadband Industry Practices, Report and Order, GN Docket No. 09-191, WC Docket No. 07-52 (reI. Dec. 23, 2010). Also enclosed isa check payable to the Clerk, U.S. Court ofAppea.ls, in the amount of$450.00 to cover the fees associated with docketing this case. Please date-stamp the enclosed extra copies ofthe Notice of Appeal and Corporate Disclosure Statement designated for that purpose. Should you have any questions regarding this filing, please do not hesitate to contact me. R~p=UV:;&!CLZ- Helg·c4alker . Enclosures .WPEAtS-~ ISTRICT OF COLUMBiA CIRCUIT . ·1Qf..~pPE.~.lS _JfcftFci\~utll\llAclnctII1 ~\~~Q~!O"IN THE UNITED STATES COURT OFAPP RECE\\lEOFOR THE DISTRICT OF COLUMBIA CIR"'n'rrrl, L..-.-------' VERIZON, CLERK Appellant, v. Case No. 11- ----- FEDERALCOMMUNICATIONS COMMISSION, 11-1355 Appellee. NOTICE OF APPEAL Pursl.iantto 47 U.S.C. § 402(b) and (c) and Rule 15(a) ofthe Federal Rules ofAppellate Procedure, Verizon 1 hereby appeals the final order ofthe Federal Communications Commission ("FCC" or "Commission") captioned In the Matter ofPreserving the Open Internet; Broadband Industry Practices, Report and Order, GN Docket No. 09-191, WC Docket No. 07-52 (reI. Dec. 23, 2010) ("Order"). The Order was published in the Federal Register on September 23, 2011. 76 Fed. Reg. 59192. A copy ofthe full text ofthe Order is attached as ExhibitA; In the Order, the FCC formally adopts rules that regulate the broadband Internet access services offered by wireless and wire1ine providers. The Order The Verizon companies participating in this filing are Cellco Partnership, d/b/a VerizonWire1ess, and the :regulated, wholly-owned subsidiaries ofVerizon Communications Inc. directly responds to this Court's decision in Comcast Corp. v. FCC, 600 F.3d 642 (2010). In Comcast, this Court previously held that the FCC had failed to justify its exercise ofauthority over the broadband Internet access services at issue in that case.. Id. at 644, 661.. In the Order on appeal here, the FCC responds to the· Court's decision and again attempts to justify its assertion ofregulatory authority over broadband Internet access services. SeeOrder~~42,118, 122 & n.380;id.~~. 115-37.. This Court possesses exclusive jurisdiction over Verizon's challenge to the Order because Verizon "ho1d[s]" wireless spectrum "license[s] which ha[ve] been modified ... by the Commission." 47 U.S.C. § 402(b)(5). In the Order, the Commission expressly relied on its claimed authority to "change the license ... terms," Order~133, and "to impose new requirements on existing licenses beyond those that were in place at the time ofgrant," id.~135, in order to mandate compliance with the new rules adopted therein, id.~~93,.106. The Order thus "modified" Verizon'slicenses and is subject to appeal under Section 402(b)(5). See, e.g., Functional Music, Inc. v. FCC, 274 F.2d 543, 547-48 (D.C. Cir. 1958) (holding that modification oflicenses effected in ru1emakings are appealable under Section 402(b)(5)). Moreover, as this Court has explained, "the provisions for judicial review . . contained in §§ 402(a) and 402(b) are mutually eXclusive, so that a claim directed 2 to the same matters may be brought only under one ofthe two provisions," Tribune Co. v. FCC, 133 F.3d 61,66 n.4 (D.C. Cir. 1998) (internal citations and quotation marks omitted); see also N. Am. Catholic Educ. Programming Found., Inc. v. FCC, 437 F.3d 1206, 1208 (D.C. Cif. 2006), and Commission orders are challengeable only "as an inseparable whole," id. at 1210; see also Rhode Island Television Corp. v. FCC, 320 F.2d 762, 766 (D.C. Cir. 1963) (explaining that "a given order may not be reviewed in two separate cases"). Further, "§ 402(a) is a residual category," such that jurisdiction exists under that provision "only if§ 402(b) does not apply." WHDH, Inc. v. United States; 457 F.2d 559,560-61 (lst CiL 1972) (emphasis in original); see also N. Am. Catholic, 437 F.3d at 1208 ("Section 402(b) provides for appeals ofFCC orders in nine enumerated situations, including licensing. For all other final orders ofthe·Commission,.§ 402(a) provides ... review ...." (emphasis added)). Thus, jurisdiction to review .·Yerizon's challenge to the entire Order lies exclusively with this Court under Section 402(b)(5). Verizon, which participated inthe proceeding below, is a provider ofboth ... wireline and wireless broadband Internet access services subject to the regulations adopted by the Order, and it holds licenses that were modified by the Order. Yerizon thus is aggrieved by the Order and possesses standing to challenge it. Verizon seeksreliefon the grounds that the Order: (1) is in excess ofthe 3 Commission's statutory authority; (2) is arbitrary, capricious, and an abuse of discretion within the meaning ofthe Administrative Procedure Act; (3) is contrary to constitutional right; and (4) is otherwise contrary to law. Accordingly, Verizon respectfully requests that this Court hold unlawful, vacate, enjoin, and set aside the Order, and provide such additional reliefas may be appropriate. 4 Michael E. Glover Edward Shakin William H. Johnson 1320 North Courthouse Road· 9th Floor Arlington, VA 22201· TEL: (703) 351-3060 FAX: (703) 351-3670 John T. Scott, III William·D. Wallace .1300 I Street, NW Suite 400 West Washington, DC20005 TEL: (202) 589-3770 FAX: (202) 598-3750 Attorneysfor Verizon and Verizon Wireless :tJ;;d1~ Helgi~ker*. Eve KlinderaReed William S. Consovoy Brett A. Shumate WILEY REINLLP 1776 KStreet, NW Washington, DC 20006.. TEL: (202) 719-7000 . FAX: (202) 719-7049. Sainir C. Jain WILMER CUTLER PICKERING HALE AND DORR LLP 1875 Pennsylvania Ave., NW Washington, DC 20006 TEL: (202)663~6083 . FAX: (202) 663-6363 Walter E. Dellinger Brianne Gorod O'MELVENY & MYERS LLP 1625 Eye Street, NW Washington, DC 20006 . TEL: (202) 383-5300 FAX: (202) 383-5414 . Dated: September 30, 2011 5 * Counsel ofRecord CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 ofthe Federal Rules ofAppellate Procedure and Rule 26.1 ofthis Court, Verizon hereby submits the following corporate disclosure statement: The Verizon companies participating in this filing are CellcoPartnership, d/b/a VerizonWireless, and the regulated, wholly-owned subsidiaries ofVerizon Communications Inc. Cellco Partnership, a general partnership formed under the law ofthe State ofDelaware, is a joint venture ofVerizon Communications Inc. and Vodafone Group PIc,. Verizon Communicatioris Inc. and Vodafone Group PIc . indirectly hold 55percent and 45 percentpartnership interests, respectively, in Cellco Partnership. Both Verizon Communications Inc. and Vodafone Group PIc are publiCly-traded companies. Verizon Communications Inc. has no parent company. No publicly held company owns 10 percent or more ofVerizon Communications Inc.'s stock. Insofar as relevant to this litigation, Verizon's general nature and purpose is to provide communications services, including broadband Internet access services provided by its wholly-owned telephone .company and Verizon Online LLC subsidiaries and by Verizon Wireless. BY HAND DELIVERY 11-1356 202.719.7349 hwalker@wileyrein.com j SEP 30 1.011 UN\TEDSTAlESOfCOCOUm::6~~ FOR D\STRICT - , FILEO Mark J. Langer Clerk, United States Court ofAppeals for the District ofColumbia CircUit 333 Constitution Avenue, NW Room 5523 Washington, DC 20001 LERK www.wileyrein.com 1776 K STREET NW WASHINGTON, DC 20006 PHONE 202.719.7000 FAX 202.719.7049 7925 JONES BRANCH DRIVE McLEAN, VA 22102 PHONE 703.905.2800 FAX 703.905.2820 Re: Verizon v. FCC Dear Mr. Langer: On behalf of Verizon, enclosed please find an original and four copies of a Protective Petition for Review of the final order of the Federal Communications Commission captioned In the Matter ofPreserving the Open Internet; Broadband Industry Practices, Report and Order, ON Docket No. 09-191, WC Docket No. 07- ". ol. 52 (reI. Dec. 23, 2010). Also enclosed is a check payable to the Clerk, U.S. Court of Appeals, in the amount of $450.00 to cover the fees associated with docketing this case. Please date-stamp the enclosed extra copies of the Protective Petition for Review and Corporate Disclosure Statement designated for that purpose. Should you have any questions regarding this fi1irig, please do not hesitate to contact me. J"tfullY~bU:;~. He1gi. Enclosures Cll) -,~ -:i (> m o ...., Q rr, r PROTECTIVE PETITION FOR REVIEW Respondents. ::?