Federal Communications Commission Washington, D.C. 20554 August 16, 2012 Elizabeth Shumaker, Clerk United States Court of Appeals for the Tenth Circuit Byron White U.S. Courthouse 1823 Stout Street Denver, CO 80257 Re: In re FCC 11-161, Case No. 11-9900 Dear Ms. Shumaker: Earlier today, the Federal Communications Commission (“FCC”) filed a Motion Regarding the Briefing Format for Respondents and their Supporting Intervenors. That motion sets forth the FCC’s proposed briefing format and filing deadlines in the aforementioned case, as well as a proposed briefing format for the agency’s supporting intervenors. After filing this motion, the FCC’s supporting intervenors notified us that they failed to include proposed filing deadlines for the submission of their briefs. Accordingly, on behalf of our supporting intervenors, the FCC submits an amended copy of that motion, which now includes the following text on page 10: Finally, intervenors in support of respondents request that their briefs be due three weeks after the last of the uncited Commission briefs are filed, which would be March 27, 2012 under the Commission’s proposal. Three weeks would give the respondents’ intervenors sufficient time to coordinate among the signatories to the briefs and to minimize any repetition of arguments found in the eleven briefs that the Commission proposes to file on March 6, 2012. I apologize for any inconvenience that our supporting intervenors’ omission might have caused. Sincerely, /s/ Maureen K. Flood Maureen K. Flood, Counsel Federal Communications Commission IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ) IN RE: FCC 11-161 ) No. 11-9900 ) MOTION REGARDING THE BRIEFING FORMAT FOR RESPONDENTS AND THEIR SUPPORTING INTERVENORS In its Amended First Briefing Order dated August 7, 2012, this Court directed the Federal Communications Commission (“FCC” or “Commission”) to “file a motion in which it proposes the parameters (organization and length) and dates for filing its answer briefs and any proposed intervenor brief(s) in support of the FCC.” In response to that order, the Commission respectfully submits this motion regarding the briefing format for respondents and their supporting intervenors. STATEMENT OF LIAS ON COUNSELS’ POSITIONS On August 9, 2012, counsel for the FCC notified the Liaison Counsel for Petitioners that the Commission intended to file this motion. Liaison Counsel for Petitioners has indicated that a number of petitioners are likely to oppose the motion. The full statement of Liaison Counsel for Petitioners regarding this motion is attached as Exhibit A. The Liaison Counsel for Respondents is au thorized to state that the United States, the FCC’s co-respondent in this case, supports this motion. The intervenors 2 in support of respondents identified in footnote 3 have also informed Liaison Counsel that they support this motion. FCC BRIEFING FORMAT PROPOSAL The Court has indicated that its “preferred approach would be for the FCC to file fourteen briefs that directly respond to each of the briefs filed by the petitioners and their supporting intervenors.” Am. First Briefing Order at 7. Consistent with the Court’s preference, the Commission proposes to file fourteen briefs, each of which will directly respond to one of the briefs filed by the petitioners or their supporting intervenors.1 The Commission proposes the following filing deadlines: ? On or before February 6, 2012, the FCC will file its response to the Uncited Joint Preliminary Brief Of The Petitioners. ? On or before February 20, 2013, the FCC will file its responses to petitioners’ Uncited Joint Intercarrier Compensation Principal Brief and Uncited Joint Universal Serv ice Fund Principal Brief. ? On or before March 6, 2012, the Commission will file its responses to the eleven remaining briefs filed by petitioners and their supporting intervenors. 1 Pursuant to Fed. Rul. App. Proc. 27, the FCC on August 10, 2012 filed a consent motion to transfer a challenge to the Second Order on Reconsideration of the U SF/ICC Transformation Order (the subject of this consolidated case) from the D.C. Circuit to this Court. See Windstream Corp. and Wi ndstream Commc’ns, Inc. v. FCC , D.C. Cir. No. 12-1331. A copy of that motion is attached as Exhibit B. The FCC has no objection to accommodating Windstream’s participation in this case, consistent with the parameters and deadlines established in the Amended First Briefing Order, should the D.C. Circuit grant the agency’s motion to transfer the case to this Court. 3 The deadlines proposed above reflect the fact that filing more than a dozen briefs in this proceeding imposes an unprecedented strain on the limited resources of the FCC’s Office of General Counsel – an office that is currently involved in several other cases pending before the federal courts of appeals. The FCC, moreover, faces a unique burden in this litigation. Petitioners’ fourteen briefs will be filed by a variety of parties, and no one party will join every brief. By contrast, the FCC alone must produce all fourteen briefs in response. The Commission also proposes that the total word limit for its briefs should be equal to the aggregate word limit for the opening briefs filed by the petitioners and the briefs filed by their supporting intervenors – a total of fourteen briefs with a total word limit of 102,710 words. The Commission proposes that the same aggregate word limit should apply to the fourteen briefs that the Commission files. Under this proposal, the total number of words contained in all of the FCC’s briefs may not exceed 102,710 words.2 In contrast to the petitioners’ briefing format, however, the Commission proposes that none of its individual briefs would be subject to a specific word limit, and that it be given the flexibility to determine how many words to devote to 2 At this early stage of the litigation, we request the same word limit that applies to petitioners and their supporting intervenors out of an abundance of caution. Nevertheless, we will endeavor to be as concise as possible in presenting our arguments, and will make every effort not to use all of the allotted words. 4 specific issues that it would normally have if it were filing one brief governed by a single word limit. The Commission has previously filed a single answer brief subject to a single word limit in a number of cases in which it has had to respond to multiple petitioners’ briefs. See, e.g., Texas Office of Pub. Util. Counsel, 183 F.3d 393 (5th Cir. 1999) (FCC files a single brief in response to 14 briefs filed by petitioners and petitioners’ supporting intervenors); S w . Bell Tel. Co. v. FCC, 153 F.3d 523 (8th Cir. 1998) (FCC files a single brief in response to 7 briefs filed by petitioners and petitioners’ supporting intervenors). This approach will benefit the Court by enabling the FCC to prepare a more tailored response to each of the briefs filed by petitioners and their supporting intervenors without expanding the overall volume of briefing. Under the Commission’s briefing proposal, so long as the total number of words in the FCC’s fourteen briefs does not exceed 102,710, the Commission would have the discretion to allocate those words among its briefs as it sees fit. For example, the Commission might consider it appropriate and helpful to the Court to devote 14,000 of its words to addressing the issues raised by petitioners’ 12,000-word “Joint Intercarrier Compensati on Principal Brief.” This would leave the Commission with 2,000 fewer words to respond to the remaining petitioners’ briefs. In the event that the number of words in any of the FCC’s response briefs exceeds the word limit applicable to the corresponding petitioners’ brief, the 5 Commission will not object if the releva nt petitioners move for a reasonable expansion of the word limit for their reply brief. The brief-specific word limits prescribed for the briefs of petitioners and their supporting intervenors are appropriate because those parties otherwise likely would have difficulty agreeing to an allocation of the 102,710 words that, in the aggregate, are allotted to them. No such concern applies with respect to the Commission, which must nevertheless address all of the matters raised in the opposing briefs. INTERVENORS’ BRIEFIN G FORMAT PROPOSAL The Commission believes that its supporting intervenors can play an important role in assisting the Court in understanding the complex issues presented by this case. Given their experience as providers of various communications services, the intervenors bring a unique perspective to this litigation. As a result, they can contribute significantly to the Court’s understanding of how the FCC decision at issue here will affect the communications marketplace. The intervenors supporting respondents have asked the Liaison Counsel for Respondents to submit the following briefing proposal to the Court. 6 Intervenors in support of respondents3 propose the following allocation of briefs and words: ? An “Intercarrier Compensation Brief” of fewer than 13,000 words. This brief will respond to the “Joint Inter carrier Compensation Principal Brief,” the “Additional Intercarrier Compensation Issues Principal Brief,” the “National Association of State Utility Consumer Advocates’ Principal Brief,” and the “Carrier Access Charge Recovery Principal Brief.” This brief will also respond to the “Tribal Carriers’ Principal Brief” and the two briefs of petitioners’ intervenors, insofar as those briefs address issues relating to intercarrier compensation. ? A “Universal Service Fund Brief” of fewer than 11,000 words. This brief will respond to the “Joint Universal Service Fund Principal Brief,” the “Additional Universal Service Fund Issues Principal Brief,” and the “Wireless Carrier Universal Service Fund Principal Brief.” This Brief will also respond to the “Tribal Carriers’ Pri ncipal Brief” and the two briefs of petitioners’ intervenors, insofar as those briefs address issues relating to the Universal Service Fund. ? A “Voice Over Internet Brief” of fe wer than 6,000 words. This brief will respond to “AT&T’s Principal Brief,” “Halo Wireless, Inc. and Transcom Enhanced Services, Inc.’s Principal Brief,” and the “Voice Over Internet Coalition Principal Brief.” 4 3 The following intervenors in support of respondents join this proposal: AT&T Inc., Central Texas Telephone Cooperative, Inc., CenturyLink, Inc., Comcast Corporation, Cox Communications, Inc., HyperCube Teleco m, LLC, Level 3 Communications, LLC, MetroPCS Comm unications, Inc., National Cable & Telecommunications Association, Rural Telecommunications Group, Inc., Sprint Nextel Corporation, T-Mobile USA, Inc., Verizon and Veri zon Wireless, and Vonage Holdings Corporation. 4 Under this proposal, each intervenor in support of respondents would be able to join one or more of the briefs describe d above, in whole or in part. That is appropriate both because several intervenors in support of respondents are interested in issues to be addressed in more than one of the proposed intervenor briefs and because all intervenors in support of respondents will not agree with Footnote continues on next page. 7 Intervenors in support of respondents respectfully submit that this proposal is reasonable notwithstanding the 8,000 words in two briefs allocated to the intervenors in support of petitioners. The Commission’s Order establishes the terms on which intervenors in support of respondents currently do business and will do business in the future. Intervenors in support of respondents therefore have an economic stake in the defense of that Order that will not be fully addressed by the government and thus, for practical purposes, are “real parties in interest.” United States v. Interstate Commerce Comm’n ¸ 337 U.S. 426, 432 (1949); International Union of Elec., Radio & Mach. Workers v. NL RB , 434 F.2d 473, 475 (D.C. Cir. 1970). If this Court were to agree with the arguments petitioners raise and remand or vacate parts of the Order, many of the intervenors in support of respondents would be significantly affected. This briefing proposal permits those intervenors sufficient numbers of briefs and words to explain and defend their interests in upholding the Order, which will complement rather than duplicate the defense to be mounted by respondents themselves. Intervenors in support of respondents have a significant stake in the outcome of this case – no less so than petitioners themselves – but resp ondents’ intervenors had no option other than intervention to protect their interests by defending the every argument made in each of the proposed intervenor briefs – indeed, certain intervenors will in fact disagree with some of those arguments. 8 Commission’s Order against petitioners’ challenges. Their proposal for no more than 30,000 words is less than one-third of the words allocated to petitioners. In other appeals in this Court, intervenors in support of agencies have been permitted to file one or more briefs of comparable length to those filed by the petitioners, even though the FCC was also able to do so. Thus, in Q west Communications International Inc. v. FCC , 398 F.3d 1222 (2005), the intervenors in support of the respondents filed three separate briefs totaling 30,577 words,5 compared to the two opening briefs totaling 27,873 words filed by the petitioners6 and the brief of 18,751 words filed by the FCC.7 And, in Q west Corp. v. FCC , --- F.3d ---, 2012 WL 3156451 (10th Cir. Aug. 6, 2012), the intervenors supporting respondents filed a consolidated brief of 13,654 words,8 compared to the opening brief of 13,814 words filed by the petitioner9 and the brief of 13,897 words filed by the FCC.10 5 See Br. for Verizon Tel. Co s. and BellSouth Corp. as Intervenors Supporting the FCC, Nos. 03-9617, et al. (10th Cir. filed June 30, 2004) (12,161 words); Br. of Intervenor AT&T Corp. in Supp. of the F CC, Nos. 03-9617, et al. (10th Cir. filed Aug. 6, 2004) (7,814 words); Final Br. of Intervenor-Resp. Ve rmont Public Serv. Bd., Nos. 03-9617, et al. (10th Cir. filed Aug. 4, 2004) (10,602 words). 6 See Final Br. of Pet’r Vermont Public Se rv. Bd., No. 03-9617, et al. (10th Cir. filed Aug. 4, 2004) (13,958 words); Join t Br. of Pet’rs Qwe st Communications Int’l, Inc. and SBC Communications Inc., No. 03-9617, et al. (10th Cir. filed Aug. 5, 2004) (13,915 words). 7 See Br. for FCC, Nos. 03-9617, et al. (10th Cir. filed July 1, 2004). 8 See FCC Intervenors’ Final Answer Br., No. 10-9543 (10th Cir. filed Mar. 23, 2011). 9 See Opening Br. of Pet’r Qwest Corp., No . 10-9543 (10th Cir. filed Mar. 25, 2011). 9 Permitting respondents’ intervenors to f ile three separate briefs also is appropriate. Having multiple briefs for respondents’ intervenors will assist the Court by enabling it to identify the intervenor brief that responds to a particular argument asserted by petitioners more easily than would be possible with a single intervenors’ brief. The Court recognized the value of such a targeted presentation when it encouraged the Commission to file fourteen separate briefs responding to each of the briefs filed by petitioners and their supporting intervenors. See Am. First Briefing Order at 6-7. Intervenors in support of respondents are not uniformly supportive of all aspects of the Order. Only eight entities appear before the Court solely as intervenors in support of respondents. Two of the intervenors in support of respondents – AT&T Inc. and the Na tional Telecommunications Cooperative Association – are also petitioners challenging aspects of the Order. The more than two dozen other entities that intervened in support of respondents also intervened in support of petitioners. Some of respondents’ intervenors support only the universal service aspects of the Order; others support only the intercarrier compensation elements. And the separate brief for Voice Over Internet issues reflects the divergent – indeed, opposing – interests that respondents’ intervenors have on those issues. Forcing all of the intervenors to collaborate on a single brief 10 See Final Answer Br. of Resps., No. 10-5943 (10th Cir. filed Mar. 18, 2011). 10 would require parties with opposing interests to share a single allotment of words, potentially precipitating unproductive and unnecessary conflicts over how to allocate those words among the various issues in the case. Indeed, several parties that are participating on both sides of the case have refused to join this briefing proposal. They presumably have concluded that their interests in challenging portions of the Commission’s Order outweigh their interests in defending aspects of the Order and that they would prefer that respondents’ intervenors as a group be given fewer words than proposed herein with which to respond to the challenges to the Order. Finally, intervenors in support of respondents request that their briefs be due three weeks after the last of the uncited Commission briefs are filed, which would be March 27, 2012 under the Commission’s proposal. Three weeks would give the respondents’ intervenors sufficient time to coordinate among the signatories to the briefs and to minimize any repetition of arguments found in the eleven briefs that the Commission proposes to file on March 6, 2012. CONCLUSION For all of the foregoing reasons, the Court should grant this motion and adopt the briefing schedule proposed herein. Respectfully submitted, Sean A. Lev General Counsel Peter Karanjia Deputy General Counsel Jacob M. Lewis Associate General Counsel /s/ Maureen K. Flood James M. Carr Maureen K. Flood Counsel Federal Communications Commission 445 12th Street S.W. Washington, DC 20554 202-418-1762 maureen.flood@fcc.gov August 16, 2012   11-9900 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT In re: FCC 11-161 , Petition e r s v. Federal Commu n i c a t i o n s Commi s s i o n and United States of America, Responde n t s . CERTIFICATE OF COMPLIANCE Pursuant to the requirements of the Order Governing Motion Practice dated March 13, 2012, I hereby certify that the accompanying Motion Regarding the Briefing Format contains 1,973 words. / s / Maureen K. Flood Maureen K. Flood Counsel Federal Communications Commission Washington, D.C. 20554 (202) 418-1753 August 16, 2012 EXHIBIT A: Statemen t of Liais o n Couns e l for Petition e r s Statement of Liaison Counsel for Petitioners The FCC provided Liaison Counsel for Petitioners (LCP) with a copy of and outline of the key components of its proposed motion last Thursday. LCP immediately circulated it to a listserve that includes all Petitioners asking for comment by COB the following Monday. This is a fairly fast turnaround for that listserve and LCP did not expect to receive many responses. The bulk of responses LCP did receive, were received Monday in the late afternoon. AT&T, which previously noted it will support the FCC on all but one issue, confirmed that it will of course support the FCC’s motion. At least two others – Hypercube and TW Telecom – sent me an e-mail saying they will take no position. However, LCP anticipates that this motion will draw some serious objections. While I have not heard from the majority, several Petitioners have raised concerns about the obvious imbalance in flexibility and word counts embodied in the FCC’s proposal. Liaison Counsel agrees with each of the concerns raised. The preliminary concerns raised by those had time to respond include the following three issues: TIMING: Certainly there is no rationale that can possibly justify the FCC needing until FEBRUARY 6, 2012 to provide its counterstatement of the case. This is something that they are or should be already at least outlining. Indeed, the procedural background outlined in the text of the order on appeal provides an obvious and ready-made starting point. Several Petitioners raised this specific point and suggested the overall schedule be adjusted accordingly. One petitioner put it this way: “We. . . oppose the FCC’s timing proposals. We believe the FCC should have no more than 60 days to respond to the petitioners’ joint preliminary brief, and no more than 75 days to respond to each principal brief. The intervenors’ (in support of FCC) filing date should be adjusted accordingly.” UNRESTRICTED ALLOCATION FLEXIBILITY: The Petitioners are already at an obvious and significant disadvantage via the Joint Briefing process. The FCC’s proposal increases that disadvantage. Close to Thirty Petitioners (excluding AT&T) must coordinate on various aspects of the Joint Briefs. The FCC doesn’t really have to coordinate with anyone. The idea that the FCC should have an unrestricted right to allocate words among its 14 briefs is patently unfair. Why should they not be limited in the exact same way Petitioners are limited? The following are typical of the comments I received on this point: [a] “This seems excessive - separate briefs for each parties’ briefs at 100K words while we’re all shunted together with less. Why can’t they do what we did: one main ICC and USF brief with word limits, one additional ICC and USF brief with word limits, and then their intervenor-supporters get to do collectively what we’ve done”; [b] [T]his is objectionable. If the FCC wants the benefit of equal word entitlement then it should be required to allocate those words in the same manner and extent as petitioners are required to do. Failing this, the FCC has an opportunity to "gang up" on issues of its choosing by filing more extensive briefing on its "favorite" issues”; and [c] “[W]e oppose the FCC’s request for unrestricted rights to allocate total words among the various petitions. The most natural word limits for each of the FCC’s fourteen answer briefs would be based upon the word limits allocated to each of the briefs to which the FCC is responding—this would likely be most palatable [and useful] to the Court. Nevertheless, if the Court were to grant any aspect of this request, there must be a ceiling for the number of words the FCC may allocate to any single petitioner’s brief. “ The common theme among the comments - petitioners are rigidly limited in word allocations for each brief. The FCC’s responses to those briefs should also be so limited. WORD COUNTS: Finally, the court can expect some objection to overall word counts. LC’s earlier statement on Petitioners briefing proposal noted the FCC’s, in the text of the appealed order, have already used at least 141,484 words to make their case-in-chief. One petitioner sent a persuasive overview of the flaws in this aspect of the FCC’s proposal: “[T]he FCC’s total words should not exceed 75% of petitioners’ words; this is based at least in part on (1) prior practice in large multi-party proceedings in the federal circuits (e.g. in Iowa Utilities--cited by intervenors in support of the FCC’s opposition to petitioners’ proposal--the FCC was given approximately 75% of petitioners’ totals.), (2) the Order itself (and its size), which represents the FCC’s initial word allocation and which prompted the litigation, and (3) the respondent’s procedural obligation to narrow the issues for the Court. It should also be noted that the FCC represented to the Court that there was substantial overlap in issues (suggesting that 100% of words is unnecessary) when it responded to the original petitioners’ proposal.” On the imbalance in the words that might be allocated to intervenors supporting petitioners and those supporting the FCC under the FCC’s proposal, Gila River Telecommunications, Inc. and the Gila River Indian Community, had this to say: “[We] oppose the word limits proposed by the intervenors in support of the FCC. The intervenors in support of the petitioners are filing two briefs that are limited, in total, to 7,998 words. Consequently, we believe that an equal word limit for the intervenors in support of the FCC is appropriate.”   EXHIBIT B: Consen t Motion to Transfer , Windstream Corp. and Windstream Commc’ns, Inc. v. FCC, D.C. Cir. No. 12-1 3 3 1 (file d Aug. 10, 2012) IN THE UNITED STA TE COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Windstream Corporation and ) Windstream Communications, Inc. ) Petitioners, ) ) v. ) Case No. 12-1331 ) Federal Communications Commission ) and United States of America, ) Respondents. ) CONSENT MOTION TO TRANSFER Pursuant to Rule 27 of the Federa l Rules of Appellate Procedure and this Court’s Rule 27, the Federal Communications Commission (“FCC”) asks the Court to transfer the captioned petition for review to the United States Court of Appeals for the Tenth Circuit. As discussed below, such transfer is required by 28 U.S.C. § 2112(a)(5), because the Tenth Circuit has been designated the forum for all judicial challenges to the order that is the subject of the petition for review. Opposing counsel have authorized counsel for the FCC to state that the Petitioners have no objection to this motion. Argumen t Section 2112(a) provides that if, “within 10 days after issuance” of an agency order, petitions for review are filed in multiple courts of appeals, the Judicial Panel on Multidistrict Litig ation “shall, by means of random USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 1 of 11 2 selection, designate one court of appeals” in which all petitions for review of the “same order” shall be consolidated. 28 U.S.C. § 2112(a)(1) & (3). Reconsideration orders are “the same order” for purposes of section 2112(a).1 Section 2112(a) further states that the courts of appeals, other than the one so designated by the Judicial Panel, “shall transfer” their petitions for review to the designated court. Id. § 2112(a)(5). The captioned petition for review challenges orders issued by the Commission in its Connect America Fund rulemaking proceeding. In particular, petitioners seek review of both the Report and Order 2 and the Second Order on Reconsideration in that proceeding . 3 In the latter order, 1 See ACLU v. FCC , 486 F.2d 411, 414 (D.C. Cir. 1973) (transferring challenge to reconsideration order to the Ninth Circuit, where a challenge to the underlying order was pending, because the reconsideration order and underlying order were “the same order” for purposes of section 2112(a)); N a t ural Resources Defense Council v. EPA , 673 F.2d 392, 398-99 (D.C. Cir. 1980) (citing ACLU for the proposition that “separate orders, each giving rise to a petition on different subject matter, were nevertheless the ‘same order’ [under section 2112(a)] because they were issued during the course of the same proceeding and implemented ‘a single, multifaceted agency undertaking’”). 2 In the Matter of Connect America Fund; A National Broadband Plan for Our Future; Estab l i s h ing Just and Reasonable Rates for Local Exchange Carriers; High-Cost Universal Se rvice Support; Developing a Unified Intercarrier Compensation Regime; Fe deral-State Joint Board on Universal Service; Lifeline and Link-Up; Unive rsal Service Reform – Mobili t y Fund , 26 FCC Rcd 17663 (rel. Nov. 18, 2011), 76 Fed. Reg. 73,830 (Nov. 29, 2011) (“ Report and Order ”). 3 In the Matter of Connect America Fund; A National Broadband Plan for Our Future; Estab l i s h ing Just and Reasonable Rates for Local Exchange Carriers; High-Cost Universal Se rvice Support; Developing a Unified Intercarrier Compensation Regime; Fe deral-State Joint Board on Universal USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 2 of 11 3 the FCC, on its own motion, modified certain aspects of the earlier Report and Order . See Second Order on Reconsideration ¶ 1 & n.1. On December 14, 2011, the Judicial Panel on Multidistrict Litigation required all petitions for review of the Report and Order to be consolidated in the Tenth Circuit pursuant to section 2112(a).4 Because petitioners in the captioned case directly challenge that order, as well as a reconsideration order that constitutes “the same order” within the meaning of section 2112(a), this case must be transferred to the Tenth Circuit. For the foregoing reasons, we respectfully request that the captioned case be transferred to the United States Court of Appeals for the Tenth Circuit. Respectfully submitted, Sean A. Lev General Counsel Peter Karanjia Deputy General Counsel Service; Lifeline and Link-Up; Unive rsal Service Reform – Mobili t y Fund , 27 FCC Rcd 4648 (rel. Apr. 25, 2012), 77 Fed. Reg. 31,520 (May 29, 2012) (“ Second Order on Reconsideration ”). 4 In re Federal Communications Commi ssion, Connect America Fund , Consolidation Order (JPML December 14, 2011) (copy attached as Exhibit 1). See also Preliminary Order Regarding JPML Order, 10th Circuit No. 11- 9581 (filed Dec. 15, 2011) (copy attached as Exhibit 2). To date, more than 30 petitions for review of the Commission’s action in the Connect America Fund proceeding have been consolidated in the Tenth Circuit. USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 3 of 11 4 Richard K. Welch Deputy Associate General Counsel /s/ Maureen K. Flood Maureen K. Flood Counsel Federal Communications Commission Washington, D.C. 20554 August 10, 2012 USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 4 of 11 EXHIBIT 1: Consolidation Order of the Judicial Panel on Multidistrict Litigation, FCC 11-1914, MCP No. 108 (Dec. 14, 2011) USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 5 of 11 USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 6 of 11 USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 7 of 11 EXHIBIT 2: Preliminary Order Regarding JPML Order, No. 11-9581 (10th Cir., Dec. 15, 2011) USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 8 of 11 USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 9 of 11 USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 10 of 11 12-1331 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Windstream Corporation and Windstream Communications, Inc., Petitioners v. Federal Communications Commission and the United States of America, Respondents CERTIFICATE OF SERVICE I, Maureen K. Flood, hereby certify that on August 10, 2012, I electronically filed the foregoing Consent Motion to Transfer 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. Jeffrey A. Lamken MoloLamken LLP The Watergate, Suite 660 600 New Hampshire Ave., N.W. Washington, D.C. 20037 Counsel for: Windstream Corporation and Windstream Communications, Inc. Robert B. Nicholson Robert J. Wiggers U.S. Department of Justice Antitrust Division, Appellate Section Room 3224 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 Counsel for: USA /s/ M a ureen K. Flood USCA Case #12-1331 Document #1388645 Filed: 08/10/2012 Page 11 of 11 CERTIFICATE OF DIGITAL SUBMISSION I, Maureen K. Flood, hereby certify that with respect to the foregoing: (1) there are no required privacy redactions to be made per 10th Cir. R. 25.5; (2) if required to file additional hard copies, that the ECF submission is an exact copy of those documents; (3) the digital submissions have been scanned for viruses with the most recent version of a commercial virus scanning program, Symantec Endpoint Protection version 11.0.5002. 333, and according to the program are free of viruses. / s / Maureen K. Flood Maureen K. Flood Counsel Federal Communications Commission Washington, D.C. 20554 (202) 418-1753 11-9900 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT In re: FCC 11-161 , Petition e r s v. Federal Commu n i c a t i o n s Commi s s i o n and United States of America, Responde n t s . CERTIFICATE OF SERVICE I, Maureen K. Flood, hereby certify that on August 16, 2012, I electronically filed the foregoing Motion Regarding the Briefing Format with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by using the CM/ECF system. Participants in the case who ar e registered CM/ECF users will be served by the CM/ECF system. Joseph K. Witmer Kathryn G. Sophy Bohdan R. Pankiw Shaun A. Sparks Pennsylvania PUC P.O. Box 3265 Harrisburg, PA 17105-3265 Counsel for: Pennsylvania PUC Charles A. Zdebski James C. Falvey Jennifer E. Lattimore Eckert Seamans Cherin & Mellott, LLC 1717 Pennsylvania Avenue, N.W. 12th Floor Washington, D.C. 20006 Counsel for: Core Communications, Inc. 2 Ernest C. Cooper Robert G. Kidwell Howard J. Symons Mintz Levin Cohn Ferris Glovsky & Popeo PC 701 Pennsylvania Avenue, N.W. Suite 900 Washington, D.C. 20004 Counsel for: NCTA David Bergmann 3293 Noreen Drive Columbus, OH 43221-4568 Counsel for: NASUCA Paula Marie Carmody MD Office of People’s Counsel Suite 2102 6 St. Paul Street Baltimore, MD 21202 Counsel for NASUCA Christopher J. White New Jersey Division of Rate Counsel P.O. Box 46005 Newark, NJ 07101 Counsel for NASUCA Russell M. Blau Tamar Finn Bingham & McCutchen, LLP 2020 K Street, N.W. Washington, D.C. 20006 Counsel for: NTCA and OPASTCO David A. LaFuria Russell D. Lukas Todd B. Lantor David L. Nace Lukas, Nace, Gutierrez & Sachs, LLP Suite 1200 8300 Greensboro Drive McLean, VA 22102 Counsel for: Cellular South, Inc.,et al. 3 John H. Jones Office of the Ohio Attorney General 150 E. Gay Street, 16 th Floor Columbus, OH 43215 Counsel for: PUC of Ohio Benjamin H. Dickens Gerard J. Duffy Mary J. Sisak Robert M. Jackson Blooston & Mordkofsky 2120 L Street, N.W., Suite 300 Washington, D.C. 20037 Counsel for: Choctaw Telephone Company, et al. Craig S. Johnson Johnson & Sporleder 304 E. High Street Suite 200 Jefferson City, MO 65102 Counsel for: Choctaw Telephone Company David R. Irvine Jenson Stavros & Guelker 747 East South Temple, Suite 130 Salt Lake City , UT 84102 Counsel for: Direct Communications Cedar Valley, LLC, et al. David H. Solomon Craig E. Gilmore Charles L. Keller Wilkinson Barker Knauer, LLP 2300 N Street, N.W., Suite 700 Washington, D.C. 20037 Counsel for: T-Mobile USA, Inc. Donna N. Lampert Mark J. O’Connor Jennifer P. Bagg Joseph Bissonnette E. Ashton Johnston Helen E. Disenhaus Lampert, O’Connor & Johnston, PC 1776 K Street, N.W., Suite 700 Washington, D.C. 20006 Counsel for: Transcom Enhanced Services, Inc ., et al. 4 William S. McCollough McColloughHenry, PC 1250 South Capital of Texas Highway Suite 2-235 West Lake Hills, TX 78746 Counsel for: Halo Wireless, Inc. Christopher M. Heimann Gary L. Phillips Paul K. Mancini AT&T Inc. 1120 20th Street, N.W., Suite 1000 Washington, DC 20036 Counsel for: AT&T Jonathan E. Nuechterlein Elvis Stumbergs Heather M. Zachary Daniel Deacon Wilmer Cutler, et al. 1875 Pennsylvania Avenue, N.W. Washington, D.C. 20006-1420 Counsel for: AT&T Inc. Bridget Asay State of Vermont office of the Attorney General 109 State Street Montpelier, VT 05609 Counsel for: Vermont PSB Robert B. Nicholson Robert J. Wiggers U.S. Department of Justice Antitrust Division, Appellate Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530 Counsel for: USA Scott H. Angstreich Brendan J. Crimmins Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 Counsel for: Verizon Christopher J. Wright Wiltshire & Grannis LLP 1200 18th Street, N.W. Washington, D.C. 20036 Counsel for: Level 3 Communications, LLC and Sprint Nextel Corporation Glenn Richards Pillsbury Winthrop Shaw Pittman 2300 N Street, N.W. Washington, D.C. 20037-1122 Counsel for: The Voice on the Net Coaliti on 5 Thomas Jones David Paul Murray Nirali Patel Willkie, Farr & Gallagher LLP 1875 K Street, N.W. Washington, D.C. 20006 Counsel for: tw telecom, inc. Robert A. Long, Jr. Gerald J. Waldron Yaron Dori Enrique Armijo Covington & Burling LLP 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004-2401 Counsel for: CenturyLink, Inc. David E. Mills J.G. Harrington Dow Lohnes PLLC 1200 Ner Hampshire Avenue, N.W. Suite 800 Washington, D.C. 20036-6802 Counsel for: Cox Communications, Inc. Clare E. Kindall Assistant Attorney General Department Head-Energy Office of the Attorney General Ten Franklin Square New Britain, CT 06051 Counsel for Connecticut PURA Genevieve Morelli ITTA 1101 Vermont Avenue, N.W. Suite 501 Washington, D.C. 20005 Counsel for: ITTA Craig S. Johnson Johnson & Sporleder, LLP 304 E High Street, Suite 200 P.O. Box 1670 Jefferson City, MO 65102 Counsel for: Choctaw Telephone Company Carl W. Northrop Telecommunications Law Professionals PLLC 875 15th Street, N.W., Suite 750 Washington, D.C. 20005 Counsel for: MetroPCS Communications, Inc. Mark A. Stachiw MetroPCS Communications, Inc. 2250 Lakeside Blvd. Richardson, TX 75082 Counsel for: MetroPCS Communications, Inc. 6 Gregory J. Vogt Law Offices of Gergory J. Vogt, PLLC 2121 Eisenhower Avenue, Suite 200 Alexandria, VA 22314 Counsel for: National Exchange Carriers Associ a t i on, Inc. Paul M. Schudel Thomas J. Moorman Woods & Aitken LLP 301 South 13th Street, Suite 500 Lincoln, Nebraska 68508 Counsel for: Nebraska Rural Independent Companies Matthew A. Brill Latham & Watkins 555 11th Street, Suite 1000 Washington, D.C. 20004 Counsel for: Rural Cellular Associ a t i on Steven H. Thomas McGuire Craddock & Strother, PC 2501 N. Harwood, Suite 1800 Dallas, TX 75201 Counsel for: Halo Wireless Sidney Powell Torrence E. Lewis 3831 Turtle Creek Blvd. #5B Dallas, TX 75219 Counsel for: Transcom Enhanced Services, Inc. Walter H. Sargent 1632 N. Cascade Avenue Colorado Springs, CO 80907 Counsel for Transcom Enhanced Services, Inc., et al.. Michael B. Wallace Rebecca Hawkins Wise Carter Child & Caraway, P.A. 401 E. Capitol Street Heritage Building, Suite 600 Jackson, MS 39201 Counsel for: Cellular South, Inc. Caressa D. Bennet Kenneth C. Johnson Daryl A. Zakov Anthony K. Veach Bennet & Bennet, PLLC 4350 East West Highway, Suite 201 Bethesda, MD 20814 Counsel for: Rural Telecommunications Group, Inc. and Central Texas Telephone Cooperative, Inc. 7 Samuel L. Feder Elaine J. Goldenberg Jenner & Block LLP 1099 New York Avenue, N.W. Washington, D.C. 20001 Counsel for: Comcast Corporation John B. Messenger 5700 Georgia Avenue West Palm Beach, FL 33405 Counsel for: YMax Communications Corp. Robert A. Fox 1500 SW Arrowhead Road Topeka, KS 66604 Counsel for The State Corporation Commissi on of the State of Kansas Patricia A. Millett Kevin Amer Sean Conway Akin Gump Strauss Hauer & Feld LLP 1333 New Hampshire Avenue, N.W. Washington, D.C. 20036 Counsel for: Gila River Indian Community, et al. Don L. Keskey 505 N. Capitol Avenue Lansin, MI 48933 Counsel for: Allband Communications Cooperative Ivan C. Evilsizer Evilsizer Law Office, PLLC 2301 Colonial Drive, Suite 2B Helena, MT 59601-4995 Counsel for: Ronan Telephone Company, et al. Alan L. Smith 1169 East 4020 South Salt Lake City , UT 84124 Counsel for Direct Communications Cedar Val ley, LLC, et al. Roger D. Dixon, Jr. Law Offices of Dale Dixon 7316 Esfera Street Carlsbad, CA 92009 Counsel for: North County Communications Corporation 8 David Cosson 2154 Wisconsin Avenue, N.W. Washington, D.C. 20007 Counsel for: Eastern Nebraska Telephone Company H. Russell Frisby, Jr. Dennis Lane Harvey L. Reiter Stinson Morrison Hecker 1775 Pennsylvania Avenue, N.W. Washington, D.C. 20006 Counsel for: Eastern Nebraska Telephone Company James B. Ramsay NARUC 1101 Vermont Avenue, N.W., Suite 200 Washington, D.C. 20005 Counsel for: NARUC Maureen A. Scott Janet F. Wagner Wesley C. Van Cleve Arizona Corporation Commission Legal Division 1200 West Washington Phoenix, AZ 85007 Counsel for: Arizona Corporation Commissi on Raymond L. Doggett, Jr. D. Mathias Roussy, Jr. Virginia State Corporation Commission Office of General Counsel P.O. Box 1197 Richmond, VA 23218-1197 Counsel for: Virginia State Corporation Commiss i on Rick Chessen Neal M. Goldberg Jennifer McKee Steven F. Morris NCTA 25 Masschusetts Avenue, N.W. Suite 100 Washington, D.C. 20001 Counsel for: NCTA /s/ Maureen K. Flood