USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 1 of 23 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT National Lifeline Association, et al., ) Petitioners, ) ) v. ) Nos. 18-1026, 18-1080 ) (consolidated) Federal Communications Commission ) and United States of America, ) Respondents. ) OPPOSITION OF THE FEDERAL COMMUNICATIONS COMMISSION TO MOTION FOR STAY PENDING REVIEW Respondent the Federal Communications Commission (Commission or FCC) opposes the motion for stay pending judicial review filed by Petitioners. Under the federal Lifeline program, low-income consumers are eligible for subsidized telephone service, and for extra or  enhanced subsidies if they live on federally recognized Indian Tribal lands. The Commission has reformed Lifeline in recent years to better achieve program goals and to constrain program growth. In the Order on review,1 the FCC limited enhanced Lifeline subsidies to rural Tribal lands and to facilities-based service providers. The FCC did so to target enhanced subsidies to sparsely populated areas of Tribal lands where infrastructure deployment is most needed.                                                              1 Bridging the Digital Divide for Low-Income Consumers, 2017 WL 6015800 ¶¶ 3- 9, 21-30 (rel. Dec. 1, 2017) (Order). USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 2 of 23 2   Petitioners have moved to stay the FCC s reforms pending judicial review, but they are not entitled to such extraordinary relief. They are not likely to succeed on the merits of their arguments, and they have not shown that implementation of the Order will cause them irreparable harm. On the other hand, delaying the FCC s Tribal Lifeline reforms will harm the public by wasting public funds on areas and providers that should not be eligible for enhanced subsidies. The Court should therefore deny the stay. BACKGROUND 1. The FCC s Lifeline program provides public subsidies to support provision of wireline and wireless telephone and broadband (Internet) service to qualifying low-income consumers nationwide. Lifeline and Link Up Reform, 30 FCC Rcd 7818, 7819-20 ¶ 1 (2015) (2015 FNPRM). Lifeline subsidies are paid out of the Universal Service Fund, which is supported by contributions from telecommunications carriers that are recovered through surcharges on all customers monthly bills. Id. ¶¶ 1, 15 & n.46. A Lifeline provider receives a basic subsidy of $9.25 per month for each qualifying low-income customer that it serves. 47 C.F.R. § 54.403(a)(1). The provider receives up to $25 per month more for each such customer living on Tribal lands, id. § 54.403(a)(2), for a total subsidy of up to $34.25. See 2015 FNPRM, 30 FCC Rcd at 7873 ¶ 160. These subsidies are paid directly to providers,   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 3 of 23 3   not customers, although providers must certify that they will pass through the full amount of the subsidies to customers. 47 C.F.R. § 54.403(a)(1), (2). 2. The Commission initiated comprehensive Lifeline reform in 2011 to curb waste, fraud and abuse of the program and  reduce the burden on all who contribute to the Universal Service Fund. Lifeline and Link Up Reform, 27 FCC Rcd 6656, 6659 ¶ 1 (2012) (2012 Order). One animating concern with respect to the enhanced Tribal subsidy was that Lifeline spending was not being used to construct facilities on Tribal lands. The Lifeline program originally was limited to facilities-based carriers, Federal-State Joint Board, 15 FCC Rcd 12208, 12227 ¶ 30 (2000) (2000 Order), and enhanced Tribal subsidies were intended  to encourage deployment and infrastructure build-out. 2015 FNPRM, 30 FCC Rcd at 7875 ¶ 166; 2000 Order, 15 FCC Rcd at 12235 ¶ 53. Over time, however, the FCC allowed participation in the Lifeline program by non-facilities-based providers that purchase service wholesale and then resell it to retail customers; by 2015, two- thirds of enhanced subsidies went to non-facilities-based providers. 2015 FNPRM, 30 FCC Rcd at 7875 ¶ 167. 3. The Commission took two steps in the Order on review to target enhanced subsidies to areas where they are most needed and where they would not be wasted. First, it limited enhanced subsidies to rural Tribal lands, defined as any Tribal land that is not an urbanized area with a population over 25,000. Order ¶¶ 3-   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 4 of 23 4   9. Second, the FCC limited enhanced subsidies to facilities-based providers, consistent with the Commission s  desire to use enhanced support to incent the deployment of facilities on Tribal lands. Id. ¶ 23 (citation omitted). Enhanced subsidies disbursed to non-facilities-based resellers, the FCC reasoned,  cannot directly support the provider s network because the provider does not have one. Id. ¶ 23. To the extent that enhanced subsidies indirectly support deployment, the FCC found this benefit outweighed  by our need to prudently manage Fund expenditures. Id. ¶ 28. 4. On June 22, Petitioners asked the Commission to stay the Order pending judicial review. FCC staff, acting on delegated authority, denied that request on July 5. Bridging the Digital Divide for Low-Income Consumers et al., DA 18-701, 2018 WL 3327652 (WCB July 5, 2018) (Stay Denial Order). Petitioners now renew their arguments for a stay in this Court. ARGUMENT To obtain a stay pending review, Petitioners must show that (1) they are likely to prevail on the merits, (2) they will suffer irreparable harm unless a stay is granted, (3) other parties will not be harmed if a stay is granted, and (4) a stay will serve the public interest. Nken v. Holder, 556 U.S. 418, 434 (2009). Petitioners must make  a clear showing that they are entitled to such an  extraordinary   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 5 of 23 5   remedy. Winter v. NRDC, 555 U.S. 7, 22 (2008). Petitioners have not met this exacting standard. I. Petitioners Are Not Likely to Prevail on the Merits A. Petitioners first contend that the Commission failed to provide interested parties with a sufficient opportunity to express their views on its proposed reforms. Mot. 3-8. Those claims are belied by the record. The 2015 FNPRM clearly placed parties on notice that the FCC was considering limiting enhanced subsidies to facilities-based providers in rural areas. See 30 FCC Rcd at 7875 ¶ 167 (proposing  to limit enhanced Tribal Lifeline . . . support only to those Lifeline providers who have facilities ); id. at 7876 ¶ 169 (seeking comment  on whether we should focus enhanced Tribal support to those Tribal areas with lower population densities ). 1. Petitioners argue that the Commission failed to consult with Tribes regarding the facilities requirement, in violation of the Statement of Policy of Establishing a Gov t-to-Gov t Relationship with Indian Tribes, 16 FCC Rcd 4078, 4081 ¶ 2 (2000) (Policy Statement), which provides that the FCC will,  to the extent practicable, & consult with Tribal governments before taking action that would significantly affect them. Petitioners argument fails for three reasons. First, the Policy Statement is nonbinding: it  is not intended to, and does not create any right enforceable in any cause of action by any party. Id. at 4080. That language forecloses any argument that a failure to engage in consultation renders   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 6 of 23 6   the Order infirm. See, e.g., Yankton Sioux Tribe v. DHHS, 533 F.3d 634, 643-44 (8th Cir. 2008) (no right of judicial review where consultation policy included similar language); N. Arapaho Tribe v. Burwell, 118 F. Supp. 3d 1264, 1281 (D.Wy. 2015) (same); Crow Creek Sioux Tribe v. Donovan, 2010 WL 1005170 at *4-5 (D.S.D. Mar. 16, 2010) (same). Second, the FCC engaged in consultation by meeting with Tribes on the proposals in the 2015 FNPRM before the Order was adopted. See Order ¶ 5 & n.47; Stay Denial Order ¶¶ 6-7.2 Petitioners complain that the FCC only consulted with Tribes in Oklahoma when affected Tribes are located nationwide. But the FCC invited Tribes from across the country to that consultation, and held consultations with Tribes in four other States as well. See Order n.47; Stay Denial Order ¶¶ 6-7. And the Policy Statement does not require the FCC to consult individually with each of the over 500 federally-recognized Tribes nationwide, nor would it be practicable to do so. Petitioners also complain that the facilities requirement was not discussed in  meaningful depth, Mot. 5, but the record shows that the proposal was specifically addressed at the consultations. See id. ¶¶ 6-7 &                                                              2 Petitioners urge the Court to ignore the materials associated with those meetings that were appended to the Stay Denial Order. Mot. 5. But the materials were produced in direct response to Petitioners arguments before the agency that the meetings did not concern the facilities and rural limitations. See Stay Denial Order ¶¶ 6-7. And because the consultation process was independent of the APA rulemaking process, the agency was under no APA obligation to include these materials in the rulemaking record.   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 7 of 23 7   App x A. In all events, the Commission provided a forum for the Tribes to air any concerns that they might have had relating to the agency s proposed reforms; nothing in the Policy Statement, or the concept of consultation, requires a particular amount or level of detailed discussion if the opportunity for an exchange of views is afforded. In this regard, moreover, the FCC s determination that it satisfied its own policy, see Order ¶ 5 & n.47, should suffice. See Cassell v. FCC, 154 F.3d 478, 483 (D.C. Cir. 1998). Third, Tribes had an additional opportunity, of which they took advantage, to be heard by filing comments in the rulemaking record. Cf. Native Ams. For Enola v. U.S. Forest Serv., 832 F. Supp. 297, 300 (D. Or. 1993) (comments helped satisfy statutory consultation requirement). All told, the Commission received over 45 comments from Tribes and members in response to the 2015 FNPRM. 2. Petitioners argue that the FCC failed to provide adequate notice of its proposals under the APA because it did not precisely define the  facilities that providers would need to have to be entitled to enhanced subsidies or the  rural areas to which such subsidies would be limited. Mot. 7-8. But the FCC defined  facilities precisely as Petitioners  should have anticipated & in light of the initial notice. Covad Commc ns Co. v. FCC, 450 F.3d 528, 548 (D.C. Cir. 2006) (citation omitted). The FCC stated that the purpose of its proposed limitation was to  encourage & infrastructure build-out to and on   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 8 of 23 8   Tribal lands. 2015 FNPRM, 30 FCC Rcd at 7875 ¶ 166. The Order accordingly defined  facilities as last-mile facilities facilities that physically reach customer premises since they  are critical to deploying, maintaining, and building voice- and broadband-capable networks on Tribal lands, Order ¶ 22, and are  the most expensive to deploy and the most conspicuously lacking on Tribal lands. Stay Denial Order ¶ 13. Petitioners cannot reasonably claim to have been surprised by the Commission s straightforward decision to adopt the definition best suited to its stated purpose.3 Petitioners likewise complain that the FCC did not seek comment on the specific definition of  rural area that it ultimately adopted. Yet notice need not include  every precise proposal which (the agency) may ultimately adopt as a rule. Ethyl Corp. v. EPA, 541 F.2d 1, 48 (D.C. Cir. 1976) (citation omitted). Here, the FCC asked whether to target enhanced subsidies to less populated areas, and specifically asked for comment on whether it should exclude towns or cities with populations greater than 10,000. 2015 NPRM, 30 FCC Rcd at 7876-77 ¶ 170. The less restrictive definition it ultimately adopted excludes urbanized areas with                                                              3 Petitioners suggest that they were misled because the 2015 FNPRM  indicated that the FCC would preserve some role for resellers, Mot. 7, but their comments reflect that they understood the FCC s proposal could make resellers entirely ineligible for enhanced subsidies. See, e.g., Comments of Assist Wireless and Easy Wireless at 15-16 (Aug. 31, 2015) ( If the Commission limits the enhanced Tribal benefit to facilities-based providers, up to two-thirds of the Tribal subscribers could lose their enhanced service & [w]ithout wireless resellers ).   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 9 of 23 9   populations equal to or greater than 25,000. Order ¶ 5. This change from the proposed definition was not  so major that the original notice did not adequately frame the subjects for discussion. Omnipoint Corp. v. FCC, 78 F.3d 620, 631 (D.C. Cir. 1996). In addition, any failure to provide notice, even had it existed, would have been harmless because the Commission released a draft version of the Order on October 26, 2017, three weeks before its adoption, setting forth what became the final definitions. The FCC fully considered the substantial input it received regarding the draft Order which included comments from, and ex parte meetings with, the reseller Petitioners.4 See 5 U.S.C. § 706 (courts reviewing agency action under the APA must take  due account & of the rule of prejudicial error. ); First Am. Disc. Corp. v. Commodity Futures Trading Comm n, 222 F.3d 1008, 1015 (D.C. Cir. 2000). 3. Finally, Petitioners argue that the FCC violated a promise to provide an additional round of public comment because the agency did not dispose of the proposals in 2016, but instead stated at the time that the proposals  remain open for consideration in a future proceeding more comprehensively focused on advancing broadband deployment on Tribal lands. Lifeline and Link Up Reform, 31 FCC                                                              4 See, e.g., Letter to Marlene Dortch from John J. Heitmann in WC Docket No. 17- 287 (Nov. 13, 2017); Letter to Marlene Dortch from John J. Heitmann in WC Docket No. 17-287 (Nov. 9, 2017).   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 10 of 23 10   Rcd 3962, 4038 ¶ 211 (2016) (2016 Order). But nothing in that statement committed the Commission to an additional (and unnecessary) round of public comment before adopting the Order under review. On the contrary, the FCC stated that the proposals  remain open for consideration, 2016 Order, 31 FCC Rcd at 4038 ¶ 211 (emphasis added), and did not terminate the docket, close the record, or otherwise suggest that further comment was needed. It was thus entirely appropriate for the Commission to dispose of the proposals in a subsequent Order on the basis of the record generated by the 2015 FNPRM, and Petitioners do not suggest how  the content of their criticisms would have been different if they had yet another chance to file a new round of comment. Small Refiner Lead Phase- Down Task Force v. EPA, 705 F.2d 506, 540 n.95 (D.C. Cir. 1983). C. Petitioners next argue that the Commission s reforms are arbitrary and, in the case of the facilities requirement, violate the Communications Act. Mot. 8-13. But the FCC s decisions to target enhanced Tribal Lifeline support to facilities- based providers on rural Tribal lands were reasonable and well within its authority. 1. Petitioners contend that the facilities requirement is irrational because some major facilities-based wireless carriers  have exited the retail Lifeline business and  there is no alternative to a reseller in many areas. Mot. 8. The record contained evidence, however, that the requirement would encourage   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 11 of 23 11   network investment by other facilities-based providers on Tribal lands.5 And the fact that facilities-based carriers do not provide Lifeline service in every area that resellers now serve does not undermine the FCC s reasonable determination that targeting enhanced subsidies would provide an incentive for facilities-based carriers to extend their networks and enter new markets, as well as to invest the enhanced subsidies to maintain their existing networks.6 There is also no reason to assume that all resellers will withdraw from areas they now serve without enhanced subsidies. See § II, infra. In short, the FCC made a predictive judgment, based on the evidence before it, that a facilities requirement would spur network deployment and buildout on rural Tribal lands and limit the risk of waste, fraud and abuse of the Lifeline program posed by resellers receipt of enhanced subsidies, all without sacrificing other Lifeline goals. Order ¶¶ 27-28, 68. That judgment falls well within the agency s policy discretion. See Nat l Tel. Coop. Ass n v. FCC, 563                                                              5 See, e.g., Letter from Smith Bagley to FCC Secretary Marlene H. Dortch in WC Docket No. 11-42 at 1-2 (Oct. 20, 2017) (enhanced subsidies are an important reason why Smith Bagley and other  facilities-based carriers have entered Tribal lands in Arizona and New Mexico to build facilities and provide competitive service. ); Letter from Navajo Nation Telecomms. Regulatory Comm n in WC Docket No. 11-42 to Chairman Wheeler at 2 (Mar. 24, 2016) (carriers that received enhanced support  began a significant build-out on & portions of the Navajo Nation . . . while infrastructure & continued to languish [where enhanced subsidies were not available]. ); see also Order nn.56, 67. 6 By definition, the presence of a reseller in an area means that at least one facilities-based carrier has the infrastructure in place to offer service there. See Order n.55.   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 12 of 23 12   F.3d 536, 541 (2009) (review is  particularly deferential  with regard to an agency s predictive judgments about the likely economic effects of a rule. ). 2. Petitioners also argue that the FCC did not explain how the facilities requirement will  increase affordability and investment even where a facilities- based Lifeline provider is available. Mot. 9. They contend that  resellers are critical to promoting affordability through choice and competition and  increase facilities investment by  pay[ing] underlying carriers for network usage. Mot. 9- 10. But as the Commission explained,  Lifeline funds disbursed to non-facilities- based providers, though they may  lower the cost of the consumer s service, . . . cannot directly support the provider s network because the provider does not have one. Order ¶ 23. Nor could the agency see  how passing only a fraction of fund[] through to facilities-based carriers will mean more investment in rural Tribal areas than ensuring that facilities-based carriers receive 100 percent of the support. Id. ¶ 28. The Commission therefore concluded that directing the enhanced subsidy to facilities-based services would  encourage[] investment that will ultimately provide more robust networks and higher quality service[s] on & Tribal lands, making  those services more affordable and competitive for low-income consumers. Order ¶ 27. Petitioners argue that the FCC irrationally failed to consider the efficiencies that resellers create through specialization. Mot. 10. But the Commission is not   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 13 of 23 13   required to consider only these purported efficiencies in exercising its discretion on how best to disburse its limited Lifeline assets. Rather, the Commission has long been concerned about the possibility of waste, fraud, and abuse, and about unconstrained growth of the Lifeline program, in conjunction with the disbursement of enhanced Lifeline subsidies. See Order ¶ 1 (reforms will, inter alia,  reduce the demands on ratepayers of universal service contributions); 2012 Order, 27 FCC Rcd at 6659 ¶ 1 (Lifeline reforms intended to  reduce the burden on all who contribute to the Universal Service Fund. ). The FCC concluded that the  marginal benefit of resellers passing through  a fraction of enhanced subsidies to facilities-based carriers in the form of payments for wholesale network access is  outweighed by our need to prudently manage Fund expenditures. Order ¶ 28; see Vt. Pub. Serv. Bd. v. FCC, 661 F.3d 54, 65 (D.C. Cir. 2011) (recognizing FCC s  responsibility to be a prudent guardian of the public s resources ) (internal quotations omitted). 3. Petitioners contend that the FCC violated Section 10 of the Act7 by adopting the facilities requirement without an analysis of why the  findings about                                                              7 Section 10 provides that the  Commission shall forbear from applying any regulation if it determines that enforcement: (1) is not necessary to ensure just and reasonable rates; (2) is not necessary to protect consumers; and (3) is consistent with the public interest. 47 U.S.C. § 160.     USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 14 of 23 14   resellers that led it to forbear from applying the facilities requirement of Section 214(e) to Lifeline providers  no longer hold true. Mot. 11; see 47 U.S.C. § 214(e)(1)(A) (requiring that services subsidized by federal universal service support be provided using a carrier s  own facilities or  a combination of its own facilities and resale of another carrier s services ). But the FCC s decisions forbearing from Section 214(e)(1)(A) addressed the eligibility of non-facilities-based resellers for Lifeline generally; they did not speak to eligibility for the enhanced Tribal subsidy. And the Commission has not rescinded that general forbearance; the facilities requirement adopted in the Order  bears only on whether the Lifeline provider is eligible to receive enhanced rural Tribal support. Order ¶ 30. Resellers may still provide Lifeline service; they are merely limited to the basic Lifeline subsidy of $9.25 per month. Petitioners also argue that the Order failed to  consider the reliance interests of changing course. Mot. 11. On the contrary, the FCC considered reliance interests by, among other things, providing a transition period to ensure that  impacted parties have sufficient time to make the necessary changes adopted. Order ¶ 31. The FCC s launching of the Tribal Mobility Fund (estimated at $340 million) also will help to mitigate any short-term impact of withdrawing enhanced subsidies from resellers. Connect America Fund, 32 FCC Rcd 2152 ¶¶ 31, 33 (2017).   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 15 of 23 15   Petitioners further argue that the FCC  read the resale option out of Section 214(e)(1)(A) by limiting enhanced subsidies to carriers  providing service only over their  own facilities.  Mot. 12. But Section 214(e)(1)(A) provides that a carrier can receive universal service support for services provided over resale only if it does so in  combination with  its own facilities. 47 U.S.C. § 214(e)(1)(A). The Order simply provides that the carrier must have  its own last-mile facilities to receive enhanced subsidies. Order ¶ 26. In this respect, the facilities requirement is more consistent with the statutory language than Petitioners position, which seeks to retain eligibility for resale alone. In all events, as stated above, the requirement does not prevent resellers from providing basic Lifeline service. 4. Finally, Petitioners argue that  whether a subscriber lives in an urban or rural area is irrelevant to the enhanced subsidy, because the purpose of the subsidy  is to improve service affordability and subscribership. Mot. 12. That is not the program s sole purpose. Promoting network deployment has been a longstanding goal of enhanced subsidies. Order ¶ 4 (citing 2000 Order, 15 FCC Rcd at 12221 ¶ 20, 12235-36 ¶¶ 52-53). The agency reasonably determined that goal was not served, and that  scarce program resources were wasted, Order ¶ 9, by directing enhanced subsidies toward large, urban cities where there is no  lack[] in either voice or broadband networks. Id. ¶ 3.   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 16 of 23 16   II. Petitioners Have Not Demonstrated Irreparable Injury Because Petitioners have not shown a likelihood of success on the merits, their request for a stay pending review can be denied on that basis alone. See Ark. Dairy Co-op Ass n v. USDA, 573 F.3d 815, 832 (D.C. Cir. 2009). But Petitioners also fail to satisfy this Court s  high standard for irreparable injury. Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006). Under that standard,  the injury  must be both certain and great; it must be actual and not theoretical. Id. (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam)). In addition,  the injury must be beyond remediation. Chaplaincy of Full Gospel Churches, 454 F.3d at 297. A. Petitioners rely first on alleged harms to Tribes and their members, who they claim will encounter reduced access to telephone and broadband services as a result of the Order. Mot. 13-20. At the outset, neither Petitioner Crow Creek nor Intervenor Oceti Sakowan Tribal Utility Authority has substantiated its injury claims with a declaration or other evidence.8 The declarations from non-party Tribal leaders submitted with the Motion (Ex. B-E) do not support a finding of irreparable injury because they do not concern  harm suffered by the party or parties seeking injunctive relief. Jones v.                                                              8 The Crow Creek Tribal Resolution that the Petition references identifies no irreparable injury to Crow Creek due to implementation of the Order. Mot. 15, 19.   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 17 of 23 17   Dist. of Columbia, 177 F. Supp. 3d 542, 546 n.3 (D.D.C. 2016) (citing Winter, 555 U.S. at 20); see Cardinal Health Inc. v. Holder, 846 F. Supp. 2d 203, 213 (D.D.C. 2012) (alleged harm to third-party consumers could not support a finding of  irreparable injury to enjoin enforcement of agency order revoking wholesale pharmaceutical distributor s registration to distribute controlled substances from its Florida facility).9 Indeed, Crow Creek asserts (Mot. 19) that it is not currently served by any wireless Lifeline reseller, and thus the Order s limitations on such resellers have no present impact on it at all. In any event, the Tribe s claimed injuries are largely premised on the assumption that wireless resellers will terminate service on Tribal lands and that facilities-based providers will not fill the gap, leading to  mass disconnection. Mot. 17. As we show below, these consequences are by no means certain, let alone immediate. B. Petitioners have submitted declarations from Assist Wireless, LLC (Assist) and Easy Telephone Services Company (Easy), which claim that, absent a stay, they will be  forced out of business within a year. Mot. 23, Exs. F-I.                                                              9 Petitioners claim that  the Mississippi Choctaw, whose Tribal Chief submitted a Declaration, is a member of Petitioner National Lifeline Association. Mot. 20. But in its merits brief in this case, National Lifeline describes itself as  an industry association whose members include resellers; it does not claim associational standing on behalf of any Tribal entities. Brief of Petitioners National Lifeline Ass n, at 2 (filed May 9, 2018).   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 18 of 23 18   Petitioners assert that lost revenues from enhanced subsidies will force Assist and Easy to  abandon current business models & and significantly limit operations, leading in turn to  swift[] and dramatic[] customer losses because their  basic offerings will be unable to compete with facilities-based Lifeline providers eligible for enhanced subsidies, and even without facilities-based competition because  Lifeline customers cannot pay $25 per month and will be  dissatisfied with a basic Lifeline service and reduced  levels of customer care. Mot. 21, 22. These claims do not bear scrutiny. 1. Assist s and Easy s self-serving description of  an irreversible death spiral depends on a series of hypothetical and draconian measures, including  terminat[ing] nearly all staff (save a  skeleton crew ),  exit[ing] leases, and  shutter[ing] all physical stores. Mot. 20-22. There is no evidence that such measures would be required; to the contrary, Lifeline-eligible carriers will have continued access to the basic Lifeline subsidy of $9.25 per month for most of their customers, amounting to substantial monthly revenues for Assist and for Easy. Mot. Exs. G, I ¶ 4.10 Even assuming the necessity of such measures, Assist and                                                              10 Both Assist and Easy offer their Lifeline customers that are not eligible for enhanced subsidies free phones with service including at least 500 minutes of calls and a data allowance monthly. See https://www.assistwireless.com/cell-phone- plan-states/ok-non-tribal; http://www.myeasywireless.com/lifeline-plans (last visited July 23, 2018).   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 19 of 23 19   Easy acknowledge that they can remain profitable without preliminary relief until June and October 2019, respectively. Exs. F ¶ 4, H ¶ 5. 2. Assist s and Easy s claims to irreparable harm also depend on  swift[] and dramatic[] customer losses. Mot. 22. Yet their argument that they will lose customers to facilities-based providers eligible for enhanced subsidies is in tension with their argument that facilities-based carriers will not participate in the Lifeline program. Mot. 8-10. Absent competition from a facilities-based provider,  there is no reason to think that [their] customers would choose to receive no service rather than the reduced, free offering [Assist and Easy] would provide. Stay Denial Order ¶ 26. c. Petitioners alleged injuries also can be mitigated by rapid resolution of this case on the merits. See Navajo Nation v. Azar, 292 F. Supp. 3d 508, 513 (D.D.C. 2018) (no irreparable harm where alleged harms would not arise immediately and could be  mitigated by resolving this case on the merits according to an expedited litigation schedule, which the government suggests and which the Court intends to set ). Petitioners state that their harms will begin to accrue when they must notify customers about the reforms adopted in the Order, see Order ¶ 31 (requiring notification 30 days after announcement of OMB approval of the Order), or  as early as August 12, Mot. 23, but OMB approval has not yet occurred, and the reforms do not take effect for another 60 days, id., so Assist and   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 20 of 23 20   Easy will lose no revenues until sometime in October at the earliest. This case will be fully briefed by September 10. The FCC has no objection to setting oral argument as soon as practicable thereafter. The Court then may reach a decision on the merits in short order. In sum, therefore,  the alleged harms do not creat[e] a clear and present need for extraordinary equitable relief to prevent harm. Navajo Nation, 292 F. Supp. 2d at 513-14. c. A Stay Would Harm the Public. Finally, the public will be harmed if the FCC s reforms are not permitted to go into effect pending review. The Commission determined that it is not a prudent expenditure of Universal Service Fund resources to make enhanced subsidies available to providers that have no facilities and in urban areas where network deployment is already abundant. Such  excess subsidization harms the public  [b]ecause universal service is funded by a general pool subsidized by all telecommunications providers and thus indirectly by the customers. Alenco Commc ns v. FCC, 201 F.3d 608, 620 (5th Cir. 2000). That ongoing harm would continue if a stay were granted in the face of the Commission s conclusions.   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 21 of 23 21   CONCLUSION The motion for stay pending review should be denied. Respectfully submitted, Thomas M. Johnson, Jr. General Counsel David M. Gossett Deputy General Counsel Jacob M. Lewis Associate General Counsel s/ William J. Scher William J. Scher Counsel Federal Communications Commission Washington, D.C. 20554 (202) 418-1740 July 23, 2018   USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 22 of 23 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT Certificate of Compliance With Type-Volume Limitation, Typeface Requirements and Type Style Requirements . This document complies with the type-volume limit of Fed. R. App. P. (d)()(A) because, excluding the parts of the document exempted by Fed. R. App. P. (f): & this document contains words, or & this document uses a monospaced typeface and contains lines of text. . This document complies with the typeface requirements of Fed. R. App. P. (a)() and the type style requirements of Fed. R. App. P. (a)() because: & this document has been prepared in a proportionally spaced typeface using Microsoft Word in -point Times New Roman, or & this document has been prepared in a monospaced spaced typeface using with . s/ William J. Scher William J. Scher Counsel Federal Communications Commission Washington, D.C. 20554 (202) 418-1935 USCA Case #18-1026 Document #1742041 Filed: 07/23/2018 Page 23 of 23   CERTIFICATE OF FILING AND SERVICE I, William J. Scher, hereby certify that on July , , I filed the foregoing Opposition of the Federal Communications Commission to Motion for Stay Pending Review with the Clerk of the Court for the United States Court of Appeals for the District of Columbia Circuit using the electronic CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. s/ William J. Scher William J. Scher Counsel Federal Communications Commission Washington, D.C. 20554 (202) 418-1740 John J. Heitmann Robert B. Nicholson Kelley Drye & Warren LLP Frances E. Marshall 3050 K Street, NW U.S. Department of Justice Suite 400 Appellate Section Washington, D.C. 20007 Room 3224 Counsel for: National Lifeline Assoc., 950 Pennsylvania Ave., NW et al. Washington, D.C. 20530 Counsel for: USA Christopher J. Wright V. Shiva Goel John T. Nakahata Harris, Wiltshire & Grannis LLP 1919 M Street, NW 8th Floor Washington, D.C. 20036 Counsel for: Crow Creek Sioux Tribe, et al.