No. 11-9900 
 IN THE 
UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 
_____________________ 
IN RE: FCC 11-161 
_____________________ 
On Petition for Review of 
an Order of the Federal Communications Commission 
 UNCITED TRIBAL CARRIERS’ REPLY BRIEF 
 
AKIN GUMP STRAUSS HAUER & 
FELD LLP MICHAEL C. SMALL 2029 CENTURY PARK E. SUITE 2400 LOS ANGELES, CA 90067 TELEPHONE: 310-229-1000 FACSIMILE: 310-229-1002 
MSMALL@AKINGUMP.COM  
AKIN GUMP STRAUSS HAUER & 
FELD LLP JAMES E. TYSSE SEAN T. CONWAY JOHN B. CAPEHART 1333 NEW HAMPSHIRE AVENUE, N.W. WASHINGTON, DC 20036 TELEPHONE: 202-887-4000 FACSIMILE: 202-887-4288 
JTYSSE@AKINGUMP.COM 
SCONWAY@AKINGUMP.COM 
JCAPEHART@AKINGUMP.COM 
   
Counsel for Petitioners Gila River Indian Community and  
Gila River Telecommunications, Inc. 
June 12, 2013 
 
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TABLE OF CONTENTS 
 Page(s) 
 
 
INTRODUCTION ....................................................................................... 1 
I. THE ORDER’S SIGNIFICANT REDUCTION IN HIGH-
COST SUPPORT FOR RATE-OF-RETURN CARRIERS 
IS ARBITRARY AND CAPRICIOUS WITH RESPECT 
TO THOSE RATE-OF-RETURN CARRIERS SERVING 
TRIBAL LANDS. .............................................................................. 2 
A. The Order Essentially Treats All Rate-of Return Carriers 
In The Same Manner. ................................................................ 3 
B. The Order’s Significant Cuts In USF Support Undermine 
The Goal Of Universal Service On Tribal Lands. .................... 5 
C. The Order’s Preference For Price-Cap Carriers Serving 
Tribal Lands Over Rate-of-Return Carries Serving Tribal 
Lands Is Unfounded. ................................................................. 8 
II. THE TRIBAL MOBILITY FUND PROVIDES 
INSUFFICIENT SUPPORT TO MEET THE GOAL OF 
UNIVERSAL SERVICE ON TRIBAL LANDS. ......................... 11 
III. THE EXEMPTION FOR STANDING ROCK IS 
ARBITRARY AND CAPRICIOUS AND CANNOT BE 
CURED THROUGH AD HOC WAIVERS FOR OTHER 
CARRIERS. ..................................................................................... 15 
 CONCLUSION .......................................................................................... 17 
 
 
 
 
 
 
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TABLE OF AUTHORITIES 
 Page(s) 
CASES 
ALLTEL Corp. v. FCC, 
838 F.2d 551, 561 (D.C. Cir. 1988) .................................................................... 16 
Qwest Commc’ns Int’l Inc. v. FCC, 
398 F.3d 1222, 1234 (10th Cir. 2005) .............................................................. 2, 7 
Qwest Corp. v. FCC, 
258 F.3d 1191, 1195 (10th Cir. 2001) .................................................................. 2 
United States Telecom Ass’n v. FCC, 
359 F.3d 554, 571 (D.C. Cir. 2004)................................................................................16 
STATUTES 
47 U.S.C. § 254 .................................................................................................passim 
REGULATIONS 
47 C.F.R. § 20.18(h) ................................................................................................ 11 
FCC DECISIONS AND PUBLICATIONS 
Connect America Fund: High-Cost Universal Service Support, Order,         
27 FCC Rcd. 4235 (WCB 2012) ...................................................................... 4, 6 
Implementation of Section 309(j) – Competitive Bidding, 
Report and Order, 9 FCC Rcd. 5532 (1994) ......................................................... 9 
In the Matter of Telecommunications Carrier Eligible for Universal Service 
Support, Order, 
26 FCC Rcd. 3472 (WCB 2011) ......................................................................... 10 
Connecting America:  The Nat’l Broadband Plan,  
2010 WL 972375 (FCC Mar. 16, 2010) ......................................................... 7, 14 
 
Policy and Rules Concerning Rates for Dominant Carriers, 
Report and Order, CC Docket No. 87-313, 5 FCC Rcd. 23 (1990) ..................... 9 
http://www.fcc.gov/guides/emergency-communications ........................................ 11 
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OTHER AUTHORITIES 
Universal Service Fund Reform: Hearing Before the United States Senate 
Committee on Indian Affairs (June 7, 2012) (Statement of Shirley Bloomfield, 
CEO, National Telecommunications Cooperative Association) ............................ 10 
 
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GLOSSARY OF TERMS 
“APA” Administrative Procedure Act 
 
“Benchmark Order” Order, Connect America Fund: High-Cost 
Universal Service Support 27 FCC Rcd 4235 
(WCB 2012) 
 
“Broadband Plan”  Connecting America:  The Nat’l Broadband 
Plan, 2010 WL 972375 (FCC Mar. 16, 2010) 
 
“COLR” Carrier of last resort 
 
“Eligible carrier” or “ETC” 
 
Eligible telecommunications carrier 
 
“FCC” Federal Communications Commission  
 
“Fund” or “USF” Universal Service Fund  
“Order” 
 
In re Connect America Fund, 26  
FCC Rcd. 17663 (2011) 
“Qwest II” Qwest Commc’ns Int’l Inc. v. FCC, 398 F.3d 
1222 (10th Cir. 2005) 
 
Telecommunications Act Telecommunications Act of 1996 
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INTRODUCTION  
Time and again, the FCC has found that to achieve the universal service 
goals of Section 254(b) of the Telecommunications Act, additional financial 
support was necessary to help redress the dire state of telecommunications service 
on Tribal lands.  The FCC reiterated that finding in the Order at issue here.  The 
actions instituted by the Order, however, are at cross-purposes with those findings. 
The Order subjects rate-of-return carriers serving Tribal lands to the same rules 
that make significant reductions in USF high-cost support to the majority of rate-
of-return carriers.  The Order fails to explain how the FCC could find one thing 
over and over again and then implement exactly the opposite.  And no adequate 
explanation for this about-face appears in the FCC’s response to Gila River’s brief.  
Indeed, if anything, the FCC’s response serves only to underscore the lack of 
rational connection between the Order’s recognition of the dismal condition of 
telecommunications service on Tribal lands, on the one hand, and the Order’s 
adoption of rules that significantly decrease USF support for the majority of rate-of 
return carriers, including carriers like Gila River that serve Tribal lands, on the 
other hand.  
Twice before, this Court has vacated USF orders issued by the FCC on the 
ground that the FCC failed “to provide sufficient reasoning or record evidence” to 
demonstrate that the orders were consistent with the universal service principles of 
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Section 254(b).  Qwest Corp. v. FCC, 258 F.3d 1191, 1195 (10th Cir. 2001); see 
also Qwest Commc’ns Int’l Inc. v. FCC, 398 F.3d 1222, 1234 (10th Cir. 2005).  As 
it relates to USF support for service on Tribal lands, the reasoning and evidence 
underlying the Order at issue here are similarly deficient.  Thus, under the Qwest 
decisions, this Court should set aside the Order and remand to the FCC.1      
I. THE ORDER’S SIGNIFICANT REDUCTION IN HIGH-COST 
SUPPORT FOR RATE-OF-RETURN CARRIERS IS ARBITRARY 
AND CAPRICIOUS WITH RESPECT TO THOSE RATE-OF-
RETURN CARRIERS SERVING TRIBAL LANDS. 
As Gila River demonstrated in its opening brief, the Order subjects rate-of-
return carriers serving tribal lands to the same rules that the Order imposes on rate-
of-return carriers generally – rules that mandate a significant reduction of funding 
to most rate-of-return carriers.  This one-size-fits-all solution flies in the face of the 
FCC’s consistent recognition in the Order and elsewhere that the deplorable state 
of telecommunications service on Tribal lands necessitates substantially more, 
rather than substantially less, financial support to carriers serving those lands.  The 
FCC’s wooden, undifferentiated approach to the problems facing Tribal lands thus 
also defies the statutory requirement that universal service principles be employed 
                                           
1 Although Gila River is “the only Tribal carrier to challenge the Order,” 
Federal Respondents’ Uncited Response to Tribal Carriers’ Principal Brief (“FCC 
Br.”) 14, many rate-of-return carriers that serve Tribal lands are challenging the 
Order as well.   E.g., Comments of the RLEC ETCs, WC Docket 10-90 et al. at 1 
(filed Sept. 26, 2012) (identifying co-Petitioners Chippewa County Telephone 
Company, Hiawatha Communications, and Ontonagon County Telephone 
Company as rate-of-return carriers that serve Tribal lands).     
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so as to bridge disparities in service between regions of the country. Gila River 
Opening Br. 25-28.  The FCC’s contention that the Order’s funding formula rests 
on individual characteristics of rate-of-return carries and thus factors in the nature 
of the communities they serve is highly misleading.  And the justifications the FCC 
advances for its severe treatment of rate-of-return carriers are hollow.   
A. The Order Essentially Treats All Rate-of Return Carriers In The 
Same Manner. 
The FCC contends that the support provided to rate-of-return carriers under 
the Order is “based on each carrier’s individual costs[.]”  FCC Br. 22.  This 
argument blinks reality.  When push comes to shove, the Order applies new and 
nearly identical limits and funding limitation formulas to every rate-of-return 
carrier.   
This uniformity is reflected throughout the Order.  All rate-of-return carriers 
are subjected to an across-the-board $250 per month per line limit on high-cost 
support.  Order ¶ 273.  Local Switching Support, which allowed the smallest rate-
of-return carriers to receive increased high-cost support, and Safety Net Additive 
support, which was support for rate-of-return carriers that made significant 
network investments, are eliminated for all carriers.  Id. ¶¶ 250, 257.  And all rate-
of-return carriers are subjected to the same new limits and modified limitations 
formula applied to corporate operations expenses.  Id. ¶¶ 229-231.  Even the 
benchmark rule, which uses a regression methodology to compare costs of rate-of-
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return carriers, Petitioners’ Preliminary Br. 27-28, applies the same percentile limit 
on recovery of costs for all rate-of-return carriers. See Order, Connect America 
Fund: High-Cost Universal Service Support 27 FCC Rcd 4235, ¶ 10 (WCB 2012), 
application for rev. granted in part, Connect America Fund, 28 FCC Rcd 2572 
(2013); petitions for review pending sub nom. Nat’l Telecomm. Coop. Ass’n v. 
FCC, No. 13-1661 (4th Cir. filed May 21, 2013) (“The regression-derived limits 
are set at the 90th percentile of costs for [capital expenses] and [operating 
expenses] compared to similarly situated companies.”); see generally Petitioners’ 
Preliminary Br. 27-29 (summarizing changes to high-cost support for rate-of-return 
carriers).      
The FCC does not dispute that the new rules apply to rate-of-return carriers 
serving Tribal lands, despite their acknowledged greater needs, just as the rules 
apply to all other rate-of-return carriers. The FCC claims, however, that the 
Benchmark Order’s inclusion of a “tribal variable” in its regression methodology 
demonstrates that the FCC has taken those needs into account.  FCC Br. 20-21 & 
n.7.  The FCC’s reliance on the tribal variable is misplaced.  As set forth in the 
Petitioners’ Joint USF briefs, the Order delegates unbounded authority to an FCC 
bureau to concoct regression variables without adhering to APA notice and 
comment requirements.  As a result, the tribal variable can be modified or 
eliminated at any time without advance notice or other rulemaking protections, 
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thus violating the USF statute’s “predictability” mandate.  47 U.S.C. § 254(b)(5).  
See Joint USF Brief 36-39; Joint USF Reply Brief 17-20.   
B. The Order’s Significant Cuts In USF Support Undermine The 
Goal Of Universal Service On Tribal Lands. 
The Order makes significant reductions in USF support for the majority of 
rate-of-return carriers.2  And Gila River is among those carriers that will suffer 
from the diminished support, thus compromising telecommunications service on 
the Tribal land that it serves and undermining the goal of universal service. The 
FCC’s attempts to minimize those cuts are unavailing.    
First, the FCC belittles the impact of the Order on Gila River.  It claims that 
Gila River’s contention that it will receive between $300,000 and $1.6 million less 
in high cost support annually as a result of the Order is based on outdated pre-
Order estimates, and that, by virtue of the subsequently enacted Benchmark Order, 
Gila River “has so far seen no reduction of its High Cost Loop Support.”  FCC Br. 
                                           
2 The FCC asserts that, under the Order, 46% of rate-of-return carriers will 
“see either no reduction or an increase” in support.  FCC Br. 5 n.2.  The Order 
does not plainly say that, however.  Rather, it states that “almost 34 percent of rate-
of-return carriers will see no reductions whatsoever, and more than 12 percent of 
providers will an increase in high-cost universal service receipts.” Order ¶ 290.   
Gila River read this sentence to mean that the 12% of providers that will see an 
increase in support under the Order are a subset of the 34% that will see no 
reductions.  Based on that reading, Gila River stated in its opening brief that 66% 
of rate-of-rate of return carriers will see a reduction in support under the Order.  In 
any event, even if the number of rate-of-return carriers seeing no reductions under 
the Order is 46% (as the FCC says it is), it remains the fact that a majority of rate-
of-return carriers will experience a reduction in support as a result of the Order. 
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29-30.  The FCC ignores, however, that High Cost Loop Support is only one of 
four forms of high cost support. Joint USF Br. 30 (identifying High Cost Loop 
Support, Local Switching Support, Interstate Common Line Support, and Safety 
Net Additive as the four forms of high cost support under the pre-Order rules).  
After the Order was issued, Gila River submitted to the FCC two comprehensive 
financial forecasts, one prepared by a private cost consultant and the other prepared 
by the National Exchange Carrier Association, predicting a substantial diminution 
of its overall high cost support under the Order.  See Letter from Tom W. 
Davidson, WC Docket 10-90 et al. (filed Mar. 1, 2012).  As demonstrated in these 
forecasts, more than $300,000 of Gila River’s projected loss stems from the 
Order’s reduction of funding that simply is not addressed by the Benchmark Order 
– specifically, losses stemming from the Order’s extension of the modified 
corporate operations expense limit to Interstate Common Line Support and its 
elimination of the Safety Net Additive and Local Switching Support.  Id. 
The FCC fares no better in its effort to downplay the impact of the Order on 
rate-of-return carriers serving Tribal lands in general.  It declares that the support 
provided to them will be “sufficient,” thus satisfying Section 254(b)(5) of the 
Communications Act.  FCC Br. 23-25.  But the basis for the FCC’s confidence is 
paper thin.   The FCC cites only to broad statements in the Order.   Id. 24-25 
(citing Order ¶¶ 289-291).  But neither in its brief nor in the Order does the FCC 
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provide detailed factual analysis to back up its bold assertions about the sufficiency 
of support to rate-of-return carriers serving Tribal lands.  Agency say-so that 
universal service will be attained does not cut it.  See Qwest II, 398 F.3d at 1234.   
The FCC argues that the reductions in high-cost support to rate-of-return 
carriers were designed to eliminate “excess subsidization to high-cost areas.” FCC 
Br. 16.  This does not establish, however, that the remaining support will be 
sufficient for rate-of-return carriers serving Tribal lands. 
The FCC also argues that “[r]eductions in intercarrier compensation will be 
offset by a new . . . subsidy” and that “rate-of-return carriers . . . will continue to 
receive, as a group, roughly the same amount of high-cost support.”  FCC Br. 15.  
This ignores, however, that the new subsidy offsetting reductions in intercarrier 
compensation comes out of the $2 billion annual high-cost budget for rate-of-return 
carriers.  Order ¶ 126.  The upshot is that rate-of-return carriers, as a group, will 
realize a significant decline in total combined USF and intercarrier compensation 
revenues.3  
                                           
3 In rural regions where rate-of-return carriers typically operate (Gila River 
Br. 6), USF support and intercarrier compensation constitute “60% or more of their 
regulated revenues.”  Broadband Plan at *123. 
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C. The Order’s Preference For Price-Cap Carriers Serving Tribal 
Lands Over Rate-of-Return Carries Serving Tribal Lands Is 
Unfounded.    
The FCC played favorites in the Order: it froze high-cost support for price-
cap carriers while cutting such support for rate-of-return carriers.  Gila River Br. 
16-17.  With respect to price-cap carriers serving Tribal lands, however, the Order 
offered no basis (and there is none) for such preferential treatment. 
The FCC brands all rate-of-return carriers – and, by implication, those 
serving Tribal lands too – as inefficient; from there, the FCC argues that 
maintenance of the same high cost support levels for these carriers is unwarranted.  
FCC Br. 4, 28-29.  The FCC’s blanket characterization of rate-of-return carriers 
serving Tribal lands as inefficient is incorrect.  Moreover, the FCC cited no 
evidence that price-cap carriers serving Tribal lands are more efficient and thus 
more worthy of support.  
The fact that rate-of-return carriers received almost $2 billion of the $4.5 
billion high-cost support awarded in 2011 despite serving only five percent of 
access lines in the nation (FCC Br. 4) is the product of the FCC’s regulatory 
scheme, which divides areas of the country into either price cap or rate-of-return 
territories.  In short, as the historical record shows, it is this system that preordains 
that the vast majority of high-cost support necessarily would go to support service 
in areas served by rate-of-return carriers, including areas that contain Tribal lands.  
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Until 1990, all incumbent local exchange carriers were subject to rate-of-
return regulation. Policy and Rules Concerning Rates for Dominant Carriers, 
Report and Order, CC Docket No. 87-313, 5 FCC Rcd. 23, ¶ 1 (1990).  In that 
year, however, the FCC determined that “enormous differences” existed among 
local exchange carriers “in the number and concentration of their access lines, the 
geographic location and dispersion of the affiliates, and the number of states they 
serve.”  Id. ¶ 257. The FCC further determined that these local exchange carriers 
experienced “significant financial and operation differences in their assets, 
revenues, and earnings.”  Id.  In light of these differences, the FCC determined that 
a unitary regulatory scheme was no longer warranted, id., so it adopted a price cap 
regulatory scheme for the “largest local exchange carriers,” id. ¶¶ 1, 258.  The FCC 
noted that these carriers “provide[d] 88 percent of all local telephone lines in the 
U.S.,” and that they “provide[d] virtually all local exchange and access service in 
virtually all major metropolitan areas,” id., which are the most profitable areas of 
the country for carriers to service, see Implementation of Section 309(j) – 
Competitive Bidding, Report and Order, 9 FCC Rcd. 5532, ¶109 (1994) (“Rural 
areas, because of their more dispersed populations, tend to be less profitable to 
serve than more densely populated urban areas.”).   
In contrast, and as the Order expressly acknowledges, rate-of-return carriers 
operate in “many of the country’s most difficult and expensive areas to serve.” 
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Order ¶ 26.  And many of the carriers serving Tribal lands (which are especially 
difficult and expensive to serve, see Order ¶ 479), are rate-of-return carriers.  See 
Universal Service Fund Reform: Hearing Before the United States Senate 
Committee on Indian Affairs (June 7, 2012) (Statement of Shirley Bloomfield, 
CEO, National Telecommunications Cooperative Association) (at least 36 
members of NTCA, a trade association representing rate-of-return carriers, serve 
Tribal lands).  
Furthermore, even though rate-of-return carriers serve only five percent of 
the country’s access lines, they serve approximately forty percent of the nation’s 
landmass.  See Statement of Shirley Bloomfield, supra.  This is significant because 
the FCC has recognized that areas with small population densities cost more to 
serve.  In the Matter of Telecommunications Carriers Eligible for Universal 
Service Support, Order, 26 FCC Rcd. 3472, ¶ 5 (WCB 2011). 
In sum, it is not surprising that a large proportion of high-cost support 
historically has gone to rate-of-return carriers.  The reason is not that rate-of-return 
carriers by their nature are inefficient.  Rather, it is because of the high costs of 
serving the communities in which they operate, including Tribal lands.  Those 
costs are high for price-cap carriers serving Tribal lands as well.  There is, 
however, no evidentiary basis for the Order’s maintenance of the prior levels of 
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support for price-cap carriers serving Tribal lands while exposing rate-of-return 
carriers serving Tribal lands to reductions in funding.   
II. THE TRIBAL MOBILITY FUND PROVIDES INSUFFICIENT 
SUPPORT TO MEET THE GOAL OF UNIVERSAL SERVICE ON 
TRIBAL LANDS.   
The FCC argues that the Order’s Tribal Mobility Fund demonstrates that the 
FCC adopted a “tailored” approach to promoting universal service on Tribal lands.  
FCC Br. 19.  As the record shows, however, the Tribal Mobility Fund does not 
make up for the cuts in high-cost support to carriers serving Tribal lands. 
For one, the Tribal Mobility Fund is limited to wireless carriers serving 
Tribal lands.  It provides no support at all to wireline carriers serving Tribal lands.  
Promoting the development of wireless service on Tribal lands is laudable.  But the 
Order pays short shrift to the continued important role that wireline carriers play 
on Tribal lands.  That importance is readily apparent with respect to 911 calls.  
While 911 calls placed on wireline networks typically automatically report location 
of calls to the 911 dispatcher, see http://www.fcc.gov/guides/emergency-
communications, 911 calls placed on wireless devices provide dispatchers with 
only the general vicinity in which the caller may be located.  See 47 C.F.R. § 
20.18(h) (rules addressing location accuracy standards for wireless carriers).  Many 
Tribal lands lack traditional U.S. Postal Services address.  See Comments of Gila 
River, WC Docket 10-90 et al. at 3 (filed Apr. 18, 2011) (“public addresses on the 
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approximately 8,000 structures in the community are almost nonexistent, posing 
significant challenges to emergency and public safety personnel attempting to 
respond in times of crisis.”).  Thus, the ability of 911 dispatchers to automatically 
obtain accurate location information is critical in emergency situations on Tribal 
lands.  
The FCC also ignores that many rate-of-return carriers serving Tribal lands 
are subject to state or Tribal COLR requirements, which obligate an incumbent 
carrier to provide service when no other carrier will do so and subject these 
incumbent carriers to more statutory and regulatory constraints.  Order ¶ 862 
(“[I]ncumbent [carriers] have limited control over the area or customers that they 
serve, having been required to deploy their network in areas where there was no 
business case to do absent subsidies[.]”).  Wireless carriers receiving General and 
Tribal Phase Mobility Fund support, however, need only meet minimum coverage 
requirements, not COLR obligations.   Id. ¶¶ 365, 488 (discussing coverage 
requirements for General Mobility Fund Phase I and Tribal Mobility Fund Phase I, 
respectively).  Therefore, those carries likely will construct facilities to serve the 
largest population centers within Tribal lands.  Because of their COLR obligations, 
rate-of-return carriers will thus be required to serve the very highest cost regions of 
Tribal lands – and with reduced funding under the new rules, to boot.  This 
whipsaw effect of COLR demands and the cutback in USF support impairs the 
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ability of rate-of-return carriers to carry out their obligations. Far from promoting 
efficient use of USF support, this puts universal service at risk. 
  Even as to wireless carriers, the support provided by the Tribal Mobility 
Fund is inadequate.  Yes, the Order reserves $50 million in one-time support to 
wireless carriers serving Tribal lands in the Tribal Mobility Fund Phase I auction.  
Order ¶ 481.  Moreover, in the general Mobility Fund Phase I auction, which was 
held in late 2012, carriers serving Tribal lands won bids making them eligible to 
receive approximately $25 million.  FCC Br. 20 n.6.  Therefore, the general and 
Tribal Phase I Mobility Funds combined make approximately $75 million 
available in one-time support to wireless carriers serving Tribal lands for 2012 and 
2013.  In addition, beginning in 2014, the Mobility Fund Phase II authorizes “up to 
$100 million” annually for ongoing support to wireless carriers serving Tribal 
lands.  Order ¶ 494.    
The FCC pats itself on the back for offering this support for carriers serving 
Tribal lands.  It ignores, however, that the support – $75 million combined 
between 2012 and 2013, and “up to $100 million” annually starting next year – 
represents a significant reduction in present support for wireless carriers serving 
Tribal lands.  This is because the Order gives with one hand what it takes away 
with the other.  In particular, it abolished the identical support rule, under which 
competitive carriers serving Tribal lands (mostly wireless carriers) received an 
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estimated $150 million in high-cost support in 2011 alone.  Order ¶ 525.  All told, 
the Order effectively decreases overall support for wireless carriers serving Tribal 
lands by 33% annually – $50 million – once the identical support rule is phased 
out.   
The FCC states that its Mobility Funds were “not intended as a 
‘replacement’ for the identical support rule.” FCC Br. 27 n.10.  This is not so.  The 
identical support rule effectively provided wireless carriers an incentive to serve 
Tribal lands; the Mobility Funds now provides this incentive (FCC Br. 9-10), but 
does so to the tune of $50 million less annually than the identical support rule.  
This is no way to obtain universal service on Tribal lands. 
In addition to the Tribal Mobility Fund, the FCC lauds its low-income 
support program, which provides enhanced universal service support to low-
income residents on Tribal lands.  FCC Br. 8-9, 14, 22, 26.  Here too the FCC’s 
self-plaudits are unwarranted.  In 2010, the FCC found that federal support for 
telecommunications service to residents on Tribal lands was insufficient, even with 
the enhanced low-income support program.  Broadband Plan at *142.  The FCC’s 
invocation of programs that pre-date the Order, such as the creation of the Office 
of Native Affairs and Policy and the bidding credits in spectrum license auctions 
for wireless providers serving qualifying Tribal lands, FCC Br.  8-9, are beside the 
point.  And the Tribal engagement and consultation requirements that the FCC also 
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lists as feathers in its cap, id. at 11, 14, 21-22, do nothing to address the “greater 
financial support” needed “to ensure the availability of broadband in Tribal lands,”  
Order  ¶ 479.   
III. THE EXEMPTION FOR STANDING ROCK IS ARBITRARY AND 
CAPRICIOUS AND CANNOT BE CURED THROUGH AD HOC 
WAIVERS FOR OTHER CARRIERS. 
As Gila River demonstrated in its opening brief, the Order’s grant of a 
temporary exemption from the USF funding reductions to one – and only one –
carrier serving Tribal lands, Standing Rock Telecommunications, is arbitrary and 
capricious and necessitates the invalidation of the Order because the same 
considerations on which the exemption for Standing Rock rests apply in spades to 
a number of other carriers serving Tribal lands.  Gila River Br. 33-35.  The FCC’s 
defense of the Standing Rock exemption is muddled.  And its offer of possible 
waivers from the rules for other carriers does not cure the Order’s defects.   
The FCC asserts that Standing Rock deserved an exemption because it is a 
“nascent” carrier that is only a few years old.  FCC Br. 31.  The FCC fails to 
explain, however, why the age of Standing Rock should be dispositive here, 
separating it from other carriers.  Support for older carriers could promote Tribal 
self-sufficiency and economic development just as much as support for newer 
carriers.  Standing Rock itself recognized as much.  It did not request that any 
exemption be limited to just itself in comments it submitted to the FCC; rather, it 
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requested an exception for all Tribal areas.  Comments of Standing Rock, WC 
Docket No. 10-90 at 3 (filed Aug. 23, 2011) (“Existing … levels of support … 
should be preserved to the greatest extent possible.”)   Furthermore, Standing Rock 
did not even rely on its age, or the age of any tribal carrier.   Rather, in its 
comments, Standing Rock emphasized the “less than” seventy percent telephone 
penetration rate on Tribal lands generally and the “high cost” of providing service 
there as reasons for the FCC to ensure that support for all Tribal carriers not be 
decreased.   Id. at 6-7.   
The FCC argues that, if other carriers are unduly burdened by the Order, 
they can seek a Standing Rock-type exemption by applying for temporary waivers.  
FCC Br. 30-32.  It is a fundamental principle of administrative law, however, that 
the availability of waivers does not salvage a rule that is arbitrary and capricious to 
begin with.  As the D.C. Circuit has admonished, “the very essence of waiver is the 
assumed validity of the general rule.”  ALLTEL Corp. v. FCC, 838 F.2d 551, 561 
(D.C. Cir. 1988).  Under this tenet, “[w]hile a rational rule that would otherwise be 
impermissibly broad can be saved by a ‘safety valve’ waiver or exception 
procedures, the mere existence of a safety valve does not cure an irrational rule.”  
United States Telecom Ass’n v. FCC, 359 F.3d 554, 571 (D.C. Cir. 2004).  If an 
agency were able to insulate its rules from invalidation by dint of a waiver 
mechanism, “no rule, no matter how irrational, could be struck down[.]”  ALLTEL, 
Appellate Case: 11-9900     Document: 01019072095     Date Filed: 06/12/2013     Page: 21     
 17 
838 F.2d at 561-62.   In short, the fact that other carriers might be able to secure a 
waiver from the Order, along the lines of the Standing Rock exemption, does not 
render the Order lawful.   
CONCLUSION 
For the foregoing reasons, and for the reasons set forth in Gila River’s 
Opening Brief, as well as in the Uncited Joint Universal Service Fund Opening and 
Reply Briefs and the Uncited Joint Opening and Reply Intercarrier Compensation 
Briefs, this Court should set aside the Order and remand to the FCC. 
Respectfully submitted, 
Dated:  June 12, 2013 AKIN GUMP STRAUSS HAUER & 
FELD LLP 
 
 
By /s/Michael C. Small  
2029 Century Park East, Suite 2400 
Los Angeles, CA  90067 
310-229-1000 
msmall@akingump.com 
 
James E. Tysse 
Sean T. Conway 
John B. Capehart 
 
Attorneys for Petitioners Gila River Indian 
Community and Gila River 
Telecommunications, Inc.  
 
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 CERTIFICATE OF COMPLIANCE WITH FED. R. APP. P. 32(a) AND 
COURT BRIEFING ORDERS 
 
Certificate of Compliance With Type-Volume Limitation, 
Typeface Requirements, and Type Style Requirements 
 
1. This brief complies with the type-volume limitation of Fed. R. App. P. 
32(a)(7)(B) and the Court’s Third Briefing Order and Summary of Deadlines for 
Uncited Briefing because: 
 
this brief contains 3,962 words, excluding the parts of the brief 
exempted from the word count by Fed. R. App. P. 32(a)(7)(B)(iii), 
and the Court’s Amended First and Second Briefing Orders. 
 
2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) 
and this Court’s Amended First and Second Briefing Orders, as well as the type 
style requirements of Fed. R. App. P. 32(a)(6) because: 
 
this brief has been prepared in a proportionally spaced typeface using 
Microsoft Word 2007 in 14-point Times New Roman font. 
 
 
 
Dated:  June 12, 2013 AKIN GUMP STRAUSS HAUER & 
FELD LLP 
 
 
By /s/ Sean Conway  
Sean Conway 
1333 New Hampshire Ave., N.W. 
Washington, DC 20036 
Telephone: 202-887-4000 
sconway@akingump.com 
 
Attorney for Petitioners Gila River Indian 
Community and Gila River 
Telecommunications, Inc.  
 
Appellate Case: 11-9900     Document: 01019072095     Date Filed: 06/12/2013     Page: 23     
 CERTIFICATE OF DIGITAL SUBMISSION 
 
I hereby certify that with respect to the foregoing: 
(1) all required privacy redactions have been 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 submission has been scanned for viruses with the 
most recent version of a commercial virus scanning program, 
Symantec Endpoint Protection version 11.0.5002.333 last updated 
June 11, 2013, and according to the program is free of viruses. 
 
 
Dated:  June 12, 2013 AKIN GUMP STRAUSS HAUER & 
FELD LLP 
 
 
By /s/ Sean Conway  
Sean Conway 
1333 New Hampshire Ave., N.W. 
Washington, DC 20036 
Telephone: 202-887-4000 
sconway@akingump.com 
 
Attorney for Petitioners Gila River Indian 
Community and Gila River 
Telecommunications, Inc.  
 
Appellate Case: 11-9900     Document: 01019072095     Date Filed: 06/12/2013     Page: 24     
 CERTIFICATE OF SERVICE 
 
 I hereby certify that on June 12, 2013, and pursuant to the Court’s Order 
Governing Procedures for the Electronic Filing of All Briefs in the Consolidated 
Proceedings, I electronically filed the foregoing with the Court via e-mail to 
FCC_briefs_only@ca10.uscourts.gov, which will send notification of such filing 
to all counsel who have entered appearances in the consolidated proceedings. 
 
 
 
Dated:  June 12, 2013 AKIN GUMP STRAUSS HAUER & 
FELD LLP 
 
 
By /s/ Sean Conway  
Sean Conway 
1333 New Hampshire Ave., N.W. 
Washington, DC 20036 
Telephone: 202-887-4000 
sconway@akingump.com 
 
Attorney for Petitioners Gila River Indian 
Community and Gila River 
Telecommunications, Inc.  
 
Appellate Case: 11-9900     Document: 01019072095     Date Filed: 06/12/2013     Page: 25