IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT United States Telecom Association, ) Petitioner, ) ) v. ) No. 15-1063 (and ) consolidated cases) Federal Communications Commission ) and United States of America, ) Respondents. ) REPLY OF THE FEDERAL COMMUNICATIONS COMMISSION TO JOINT OPPOSITION OF USTELECOM AND ALAMO TO MOTION TO DISMISS CASE NOS. 15-1063 AND 15-1078 On May 8, 2015, the Federal Communications Commission filed a motion to dismiss Case Nos. 15-1063 and 15-1078. The Commission argued that those cases should be dismissed because they were filed prematurely (i.e., before the challenged FCC order was published in the Federal Register). On May 21, 2015, the United States Telecom Association (“USTelecom”) and Alamo Broadband Inc. (“Alamo”) filed a joint opposition to the motion to dismiss. The Commission respectfully submits this reply to the joint opposition. For the reasons discussed below, while we disagree with petitioners’ reading of FCC rules, we do not object to petitioners’ proposal that the Court refer the motion to dismiss to the merits panel. Petitioners’ argument against dismissal rests on a fundamental misreading of the FCC’s rules. As we explained in the motion to dismiss (at 4-5), those rules USCA Case #15-1063 Document #1555060 Filed: 06/01/2015 Page 1 of 9 2 generally provide that the period for filing petitions for review of “all [FCC] documents in notice and comment … rulemaking proceedings” – including the order on review – does not begin until “the date of [the document’s] publication in the Federal Register.” 47 C.F.R. § 1.4(b)(1). Because USTelecom and Alamo filed their initial petitions for review before the order was published in the Federal Register, those petitions were premature. To be sure, as petitioners note (Opp. 8), there is an exception to this rule. If parties seek to challenge “adjudicatory decisions with respect to specific parties that may be associated with or contained in rulemaking documents,” they may petition for judicial review of any such decision as soon as the FCC releases it. See 47 C.F.R. § 1.4(b)(1) Note; id. § 1.4(b)(2). But that exception does not apply here. USTelecom and Alamo maintain that because the order on review included a declaratory ruling, “it was reasonable” for petitioners “to conclude that the declaratory ruling portion of the Order could be found to be an ‘adjudicatory decision[ ] with respect to specific parties.’” Opp. 9 (quoting 47 C.F.R. § 1.4(b)(1) Note). To the contrary, the declaratory ruling contained in the order on review was plainly not an “adjudicatory decision with respect to specific parties.” Rather, it was “a ruling of general applicability” (Mot. 5) that applied to a broad category of broadband service providers. USCA Case #15-1063 Document #1555060 Filed: 06/01/2015 Page 2 of 9 3 Contrary to petitioners’ assertion, the mere fact that the FCC excluded from its declaratory ruling “a wide variety of providers of broadband Internet access service” did not transform that broadly applicable ruling into an “‘adjudicatory decision[ ] with respect to specific parties.’” See Opp. 9 (quoting 47 C.F.R. § 1.4(b)(1) Note). Petitioners appear to argue that an adjudicatory decision involves “specific parties” even if it applies to some broad subset of regulated entities. If that were true, however, the order at issue in Verizon v. FCC, 2011 WL 1235523 (D.C. Cir. Apr. 4, 2011), would have involved licensing decisions “with respect to specific parties” – i.e., mobile broadband providers.1 This Court flatly rejected that premise, holding that the FCC order in that case was “not a licensing decision ‘with respect to specific parties.’” Id. (quoting 47 C.F.R. § 1.4(b)(1) Note). While we disagree with petitioners’ reading of the FCC’s rules, we agree with USTelecom and Alamo that “this Court need not resolve” whether their initial petitions were timely filed “in order to adjudicate [their] challenges” to the order on review. Opp. 5. Both USTelecom and Alamo filed timely supplemental petitions for review after the order was published in the Federal Register. 1 See Verizon’s Consolidated Response to the FCC’s Motion to Dismiss and Motion to Defer, D.C. Cir. No. 11-1014, at 5-6 (filed Jan. 31, 2011) (arguing that the challenged order concerned licensing decisions “with respect to specific parties” because it modified the licenses of all “mobile broadband providers”). USCA Case #15-1063 Document #1555060 Filed: 06/01/2015 Page 3 of 9 4 Therefore, dismissal of their original petitions would in no way affect their ability to present their challenges to the FCC’s order. Furthermore, this Court has already devoted considerable resources to addressing various motions filed in this litigation. Given that dismissal of USTelecom’s and Alamo’s original petitions will have no effect on the ability of those petitioners to participate fully in this litigation, it might well be appropriate to defer ruling on the motion to dismiss until the case has been briefed on the merits, when the Court will be better able to assess whether a ruling on the motion is necessary. USCA Case #15-1063 Document #1555060 Filed: 06/01/2015 Page 4 of 9 5 In light of these considerations, the Commission has no objection to petitioners’ proposal that the Court refer the motion to dismiss to the merits panel. Respectfully submitted, Jonathan B. Sallet General Counsel David M. Gossett Deputy General Counsel Jacob M. Lewis Associate General Counsel /s/ James M. Carr James M. Carr Counsel Federal Communications Commission Washington, D.C. 20554 (202) 418-1762 June 1, 2015 USCA Case #15-1063 Document #1555060 Filed: 06/01/2015 Page 5 of 9 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT UNITED STATES TELECOM ASSOCIATION, Petitioner, V. FEDERAL COMMUNICATIONS COMMISSION, AND UNITED STATES OF AMERICA, Respondents. No. 15-1063 et al. CERTIFICATE OF SERVICE I, James M. Carr, hereby certify that on June 1, 2015, I electronically filed the foregoing Reply of the Federal Communications Commission to Joint Opposition of USTelecom and Alamo to Motion to Dismiss Case Nos. 15- 1063 and 15-1078 with the Clerk of the Court for the United States Court of Appeals for the District of Columbia 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. Michael K. Kellogg Scott H. Angstreich Kellogg, Huber, Hansen, Todd, Evans & Figel, PLLC 1615 M Street, NW Sumner Square, Suite 400 Washington, DC 20036 Counsel for: USTA Kathleen M. Sullivan Quinn, Emanuel, Urquhart & Sullivan, LLP 51 Madison Avenue, 22nd Floor New York, New York 10010 Counsel for: USTA Robert J. Wiggers Kristen C. Limarzi Nickolai G. Levin U.S. Department of Justice 950 Pennsylvania Avenue, NW Room 3224 Washington, DC 20530 Counsel for: USA Rick C. Chessen Neal M. Goldberg Michael S. Schooler 25 Massachusetts Ave., NW Suite 100 Washington, D.C. 20026 Counsel for: NCTA USCA Case #15-1063 Document #1555060 Filed: 06/01/2015 Page 6 of 9 No. 15-1063 Andrew G. McBride Brett A. Shumate Eve Klindera Reed Wiley Rein LLP 1776 K Street, NW Washington, D.C. 20006 Counsel for: Alamo Broadband Peter D. Keisler James P. Young C. Frederick Beckner III Sidley Austin LLP 1501 K Street, N.W. Washington, D.C. 20005 Counsel for: AT&T Inc. Jeffrey A. Lamken MoloLamken LLP The Watergate Suite 660 600 New Hampshire Ave., N.W. Washington, D.C. 20037 Counsel for: American Cable David C. Bergmann 3293 Noreen Drive Columbus, OH 43221 Counsel for: NASCUA Charles A. Acquard NASUCA 8380 Colesville Road Suite 101 Silver Spring, MD 20910 Counsel for: NASCUA Miguel A. Estrada Theodore B. Olson Jonathan C. Bond Gibson Dunn & Crutcher 1050 Connecticut Ave., N.W. Washington, D.C. 20036 Counsel for: NCTA Matthew A. Brill Matthew T. Murchison Jonathan Y. Ellis Latham & Watkins LLP 555 Eleventh Street, N.W. Suite 1000 Washington, D.C. 20004 Counsel for: NCTA Wayne Watts David R. McAtee II Lori A. Fink Gary L. Phillips Christopher M. Heimann AT&T Services, Inc. 1120 20th Street, N.W. Suite 1000 Washington, D.C. 20036 Counsel for: AT&T Inc. David H. Solomon Russell P. Hanser Wilkinson Barker Knauer 2300 N Street, N.W. Suite 700 Washington, D.C. 20037 Counsel for: CenturyLink USCA Case #15-1063 Document #1555060 Filed: 06/01/2015 Page 7 of 9 No. 15-1063 Harold Feld Public Knowledge 1818 N Street, N.W. Suite 410 Washington, D.C. 20036 Counsel for: Public Knowledge Stephen E. Coran Dennis P. Corbett Lerman Senter PLLC 2000 K Street, N.W. Suite 600 Washington, D.C. 20006 Counsel for: Wireless Internet Service Providers Association Richard E. Wiley Bennett L. Ross Bret A. Shumate Wiley Rein LLP 1776 K Street, NW Washington, DC 20006 Counsel for: Daniel Berninger Marvin Ammori Ammori Group 1718 M Street, N.W. Suite 1990 Washington, D.C. 20036 Counsel for: Tumblr, et al. Pantelis Michalopoulos Stephanie A. Roy Andrew W. Guhr Steptoe & Johnson LLP 1330 Connecticut Ave., N.W. Washington, D.C. 20036 Counsel for: DISH, et al. Robert M. Cooper James P. Denvir III Scott E. Gant Hamish P.M. Hume Hershel A. Wancjer Boies, Schiller & Flexner 5301 Wisconsin Ave., N.W. Washington, D.C. 20015 Counsel for: Cogent Comm. Seth D. Greenstein Robert S. Schwartz Constantine Cannon LLP 1001 Pennsylvania Ave., N.W. Suite 1300N Washington, D.C. 20004 Counsel for: Etsy, Inc., et al. James Bradford Ramsey General Counsel NARUC 1101 Vermont Ave., N.W. Suite 200 Washington, D.C. 20005 Counsel for: NARUC Genevieve Morelli, Esq. ITTA 1101 Vermont Ave., N.W. Suite 501 Washington, D.C. 20005 Counsel for: ITTA Sarah J. Morris Kevin S. Bankston Open Technology Institute 1899 L Street, N.W., Suite 400 Washington, D.C. 20036 Counsel for: New America’s Open Technology Institute USCA Case #15-1063 Document #1555060 Filed: 06/01/2015 Page 8 of 9 No. 15-1063 Matthew F. Wood Free Press 1025 Connecticut Ave., N.W. Suite 1110 Washington, D.C. 20036 Counsel for: Free Press Russell M. Blau Joshua M. Bobeck Morgan, Lewis & Bockius 2020 K Street, N.W. Washington, D.C. 20016 Counsel for: Vonage Holdings Colleen Boothby Patrick J. Whittle Levine, Blaszak, Block & Boothby 2001 L Street, N.W. Suite 900 Washington, D.C. 20036 Counsel for: Ad Hoc Telecom. Michael A. Cheah Vimeo LLC 555 West 18th Street New York, NY 10011 Counsel for: Vimeo Erick Stallman General Counsel Center for Democracy & Technology 1634 I Street, N.W., Suite 1100 Washington, D.C. 20006 Counsel for: Center for Democracy & Technology Christopher J. Wright Scott B. Harris H. Henry Shi Harris, Wiltshire & Grannis 1919 M Street, N.W. Eight Floor Washington, D.C. 20036 Counsel for: Akamai Technologies Andrew Jay Schwartzman 600 New Jersey Avenue, N.W. Washington, D.C. 20001 Counsel for: ColorOfChange.org Helgi C. Walker, Esq. Michael R. Huston Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, NW Washington, DC 20036 Counsel for: CTIA /s/ James M. Carr USCA Case #15-1063 Document #1555060 Filed: 06/01/2015 Page 9 of 9