IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ) IN RE: FCC 11-161 ) No. 11-9900 ) RESPONSE OF FEDERAL COMMUNICATIONS COMMISSION TO PETITIONERS’ MOTION TO ESTABLISH A PROCEDURAL SCHEDULE 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 2 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. Argument 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 necessary”). There are sound reasons for these limits on briefing volumes. Excessive briefing imposes burdens on the Court (as well as opposing parties), because “extra 3 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). 4 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. 5 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. FAA, 242 F.3d 1213, 1217-18 n.4 (10th Cir. 2001)). 6 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 petitioners). 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, 2011. 7 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 8 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. 9 Conclusion 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. Respectfully submitted, Sean A. Lev Acting General Counsel Peter Karanjia Deputy General Counsel Jacob M. Lewis Associate General Counsel /s/Laurence N. Bourne James M. Carr Laurence N. Bourne Counsel Federal Communications Commission Washington, DC 20554 (202) 418-1762 June 25, 2012