IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Accipiter Communications, Inc., ) Petitioner, ) ) v. ) No. 12-1258 ) Federal Communications Commission ) and United States of America, ) Respondents. ) MOTION TO DISMISS AND TO DEFER FILING OF THE RECORD The Federal Communications Commission moves to dismiss this case for lack of jurisdiction. The Commission also respectfully moves for leave to defer the filing of the record in this case until the Court has ruled on the motion to dismiss. In the order on review, Connect America Fund, FCC 12-52 (released May 14, 2012) (“Third Order on Reconsideration”), the FCC addressed several petitions for reconsideration and/or clarification of a November 2011 rulemaking order, Connect America Fund, 26 FCC Rcd 17663 (2011) (“Transformation Order”). The Transformation Order, which fundamentally revised the Commission’s universal service and intercarrier compensation rules, is the subject USCA Case #12-1258 Document #1386366 Filed: 07/30/2012 Page 1 of 5 2 of pending litigation in the Tenth Circuit. In re FCC 11-161, No. 11-9900 (10th Cir. filed Dec. 8, 2011).1 Accipiter seeks review only of the Third Order on Reconsideration. It is well settled, however, that an agency order denying a petition for reconsideration “is unreviewable except insofar as the request for reconsideration was based upon new evidence or changed circumstances.” Entravision Holdings, LLC v. FCC, 202 F.3d 311, 313 (D.C. Cir. 2000). Accipiter did not base its reconsideration petition on either new evidence or changed circumstances. See Third Order on Reconsideration ¶ 24 (describing Accipiter’s request for reconsideration). Therefore, the Third Order on Reconsideration – the only order specified in Accipiter’s petition for review – “is unreviewable,” and the Court “must dismiss [Accipiter’s] petition for lack of jurisdiction.” Entravision, 202 F.3d at 313; see also ICC v. Brotherhood of Locomotive Eng’rs, 482 U.S. 270, 280 (1987). The Court cannot “fairly infer from [Accipiter’s] petition for review or nearly contemporaneous filings an intent to seek review” of any order other than the Third Order on Reconsideration. Entravision, 202 F.3d at 313. Accipiter attached only the Third Order on Reconsideration to its petition for review. 1 Numerous parties (but not Accipiter) petitioned for review of the Transformation Order in several different courts of appeals. On the basis of a lottery conducted by the Judicial Panel on Multidistrict Litigation, the petitions were consolidated for review in the Tenth Circuit. See In re Federal Communications Commission, Connect America Fund, Consolidation Order (JPML Dec. 14, 2011). USCA Case #12-1258 Document #1386366 Filed: 07/30/2012 Page 2 of 5 3 Neither the petition for review nor Accipiter’s docketing statement identified any other order. Likewise, Accipiter’s certificate as to parties, rulings, and related cases named only the Third Order on Reconsideration as the “Ruling Under Review.” In addition, its preliminary statement of issues listed only matters pertaining to that reconsideration order. In past cases involving similar circumstances, this Court declined to infer that the petitioner intended to challenge any order other than a reconsideration order. See, e.g., Entravision, 202 F.3d at 313; Southwestern Bell Tel. Co. v. FCC, 180 F.3d 307, 313 (D.C. Cir. 1999); City of Benton v. NRC, 136 F.3d 824, 825-26 (D.C. Cir. 1998). The Court should reach the same conclusion here. The USCA Case #12-1258 Document #1386366 Filed: 07/30/2012 Page 3 of 5 4 reconsideration order that Accipiter seeks to challenge is unreviewable. Accordingly, the Court should dismiss this case for lack of jurisdiction. Respectfully submitted, Sean A. Lev General Counsel Peter Karanjia Deputy General Counsel Jacob M. Lewis Associate General Counsel /s/James M. Carr James M. Carr Counsel Federal Communications Commission Washington, DC 20554 (202) 418-1740 July 30, 2012 USCA Case #12-1258 Document #1386366 Filed: 07/30/2012 Page 4 of 5 12-1258 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Accipiter Communic a t i o n s , Inc., Petitioners v. Federal Communic a t i o n s Commissi o n and the United States of America, Responde n t s CERTIFICATE OF SERVICE I, James M. Carr, hereby certify that on July 30, 2012, I electronically filed the foregoing Motion to Dismiss 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. Some of the participants in the case, denoted with asterisks below, are not CM/ECF users. I certify further that I have directed that copies of the foregoing document be mailed by First-Class Mail to those persons, unless another attorney at the same mailing address is receiving electronic service. Robert F. Reklaitis Leslie Paul Machado LeClairRyan, a Professional Corp. 1101 Connecticut Avenue, N.W. Suite 600 Washington, D.C. 20036 Counsel for: Accipiter Communications, Inc. Catherine G. O’Sullivan 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/ James M. Carr USCA Case #12-1258 Document #1386366 Filed: 07/30/2012 Page 5 of 5