Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 1 of 104 No. 17-73283 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GREENLINING INSTITUTE, PUBLIC KNOWLEDGE, THE UTILITY REFORM NETWORK, AND NATIONAL ASSOCIATION OF STATE UTILITY CONSUMER ADVOCATES, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, Respondents. On Petition for Review of an Order of the Federal Communications Commission BRIEF FOR THE RESPONDENTS Makan Delrahim Thomas M. Johnson, Jr. Assistant Attorney General General Counsel Andrew C. Finch David M. Gossett Principal Deputy Assistant Deputy General Counsel Attorney General Richard K. Welch Michael F. Murray Deputy Associate General Counsel Deputy Assistant Attorney Sarah E. Citrin General Counsel Robert B. Nicholson FEDERAL COMMUNICATIONS Nickolai G. Levin COMMISSION Attorneys 445 12th Street SW U.S. DEPARTMENT OF JUSTICE Washington, DC 20554 ANTITRUST DIVISION (202) 418-1740 950 Pennsylvania Ave. NW fcclitigation@fcc.gov Washington, DC 20530 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 2 of 104 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................... iv INTRODUCTION ........................................................................................... 1 JURISDICTIONAL STATEMENT ................................................................ 3 STATEMENT OF THE ISSUES ................................................................... 4 PERTINENT STATUTES AND REGULATIONS ........................................ 5 COUNTERSTATEMENT OF THE CASE .................................................... 5 A. Statutory and Regulatory Background ................................... 5 B. Transition to Modern Technologies and Infrastructure ......... 9 C. History of the FCC s Technology Transitions Proceedings ............................................................................. 11 D. Order under Review ............................................................... 16 STANDARD OF REVIEW ........................................................................... 22 SUMMARY OF THE ARGUMENT ............................................................. 23 ARGUMENT ................................................................................................ 28 I. The Petitioners Have Not Met Their Burden to Establish Standing. .......................................................................................... 28 II. The FCC s Interpretation of Section 214(a) Was Reasonable and Procedurally Proper. ................................................................ 33 A. The Declaratory Ruling Was Reasonable. ............................ 34 B. The Petitioners Substantive Attacks on the Declaratory Ruling Fail. ........................................................ 37 C. The Petitioners Procedural Attacks on the Declaratory Ruling Fail. ............................................................................. 44 III. The FCC Reasonably Repealed the De Facto Retirement Rule. ................................................................................................. 48 A. The FCC Reasonably Determined That the Rule Provided No Meaningful Benefit. .......................................... 48 B. The Petitioners Arguments Concerning De Facto Retirement Are Unavailing. .................................................. 51 (ii) Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 3 of 104 TABLE OF CONTENTS (continued) Page IV. The Court Lacks Jurisdiction to Reach the Petitioners Untimely Claims Concerning the FCC s Copper Retirement Direct Notice Rules, Which in Any Event Fail on the Merits. ...... 55 A. Jurisdiction Is Barred by Federal Rule of Appellate Procedure 15 and 28 U.S.C. § 2344. ...................................... 55 B. The FCC Reasonably Repealed the Retail Customer Direct Notice Rule. ................................................................. 58 C. The FCC Reasonably Repealed the State Government Direct Notice Rule. ................................................................. 66 V. The FCC Did Not Prejudge the Outcome of Its Proceeding. ......... 70 CONCLUSION ............................................................................................. 72 STATEMENT OF RELATED CASES ......................................................... 74 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT ........ 75 CERTIFICATE OF FILING AND SERVICE .............................................. 76 (iii) Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 4 of 104 TABLE OF AUTHORITIES Cases Page(s) Ad Hoc Telecomms. Users Comm. v. FCC, 572 F.3d 903 (D.C. Cir. 2009) ...................................................................... 8, 9, 23, 37 Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S. 214 (1998) ..... 8, 35 Ass n of Nat l Advertisers v. FTC, 627 F.2d 1151 (D.C. Cir. 1979) ......... 70 Cal. Ass n of the Physically Handicapped, Inc. v. FCC, 833 F.2d 1333 (9th Cir. 1987) ............................................................................. 55 Cellco P ship v. FCC, 700 F.3d 534 (D.C. Cir. 2012) ................................. 5 Chamber of Commerce v. EPA, 642 F.3d 192 (D.C. Cir. 2011) ............... 30 Chevron USA, Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) .. 22, 37 Chief Probation Officers v. Shalala, 118 F.3d 1327 (9th Cir. 1997) . 46, 47 Citizens Against Ruining the Env t v. EPA, 535 F.3d 670 (7th Cir. 2008) ...................................................................................... 29 Citizens Telecomms. Co. v. FCC, 901 F.3d 991 (8th Cir. 2018) .............. 10 City of Charlottesville v. FERC, 774 F.2d 1205 (D.C. Cir. 1985) ........... 71 Del Norte Cnty. v. United States, 732 F.2d 1462 (9th Cir. 1984) ........... 47 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ................... 34 FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) ......... 22 23, 66 FCC v. Nat l Citizens Comm. for Broad., 436 U.S. 775 (1978) ......... 23, 37 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) .............................................................................. 29 FTC v. Cement Inst., 333 U.S. 683 (1948) ............................................... 71 (iv) Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 5 of 104 TABLE OF AUTHORITIES (continued) Page(s) Goos v. ICC, 911 F.2d 1283 (8th Cir. 1990) ............................................. 57 Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013) ................... 29 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................... 28 MacLean v. Dep t of Homeland Sec., 543 F.3d 1145 (9th Cir. 2008) ...... 45 Marcus v. AT&T Corp., 138 F.3d 46 (2d Cir. 1998) ................................ 35 Mont. Envtl. Info. Ctr. v. Stone-Manning, 766 F.3d 1184 (9th Cir. 2014) ...................................................................................... 32 Nat l Cable & Telecomms. Ass n v. Brand X Internet Servs., 545 U.S. 967 (2005) .................................................................. 22, 23, 44 Nat l Council of La Raza v. Cegavske, 800 F.3d 1032 (9th Cir. 2015) ...................................................................................... 31 New Edge Network, Inc. v. FCC, 461 F.3d 1105 (9th Cir. 2006) ............ 22 New England Pub. Commc ns Council, Inc. v. FCC, 334 F.3d 69 (D.C. Cir. 2003) .................................................................................... 68 Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm n, 509 F.3d 562 (D.C. Cir. 2007) ............................................................... 70, 71 Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520 (9th Cir. 1997) ...................................................................................... 33 Organized Village of Kake v. USDA, 795 F.3d 956 (9th Cir. 2015) (en banc) ................................................................................... 23, 65 66 Perez v. Mortgage Bankers Assoc., 135 S. Ct. 1199 (2015)................ 46 47 Reno-Sparks Indian Colony v. EPA, 336 F.3d 899 (9th Cir. 2003) ........ 23 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ........................................ 28 (v) Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 6 of 104 TABLE OF AUTHORITIES (continued) Page(s) Summers v. Earth Is. Inst., 555 U.S. 488 (2009) ............................... 29, 30 Tenn. Republican Party v. SEC, 863 F.3d 507 (6th Cir. 2017) ............... 29 Trump v. Hawaii, 138 S. Ct. 2392 (2018) ................................................ 28 United States v. Morgan, 313 U.S. 409 (1941) ........................................ 70 Util. Workers Union v. FERC, 896 F.3d 573 (D.C. Cir. 2018) ................ 29 Verizon Commc ns, Inc. v. FCC, 535 U.S. 467 (2002) ............................... 8 Wash. Utils. and Transp. Comm n v. FERC, 26 F.3d 935 (9th Cir. 1994) ...................................................................................... 58 Administrative Decisions Business Data Services in an Internet Protocol Environment, 32 FCC Rcd 3459 (2017) ........................................................................... 10 Ensuring Customer Premises Equipment Backup Power for Continuity of Communications Technology Transitions, 29 FCC Rcd 14968 (2014) ...................................................................... 11 12, 13 Technology Transitions, 29 FCC Rcd 1433 (2014) .................................. 11 Technology Transitions, 30 FCC Rcd 9372 (2015) .......................... passim Use of the Carterfone Device in Message Toll Telephone Service, 13 F.C.C.2d 420 (1968) ....................................................................... 18, 36 Statutes and Regulations 5 U.S.C. § 553 ..................................................................................... 25, 45 5 U.S.C. § 553(b)(A) .................................................................................. 46 5 U.S.C. § 553(d)(2) ................................................................................... 46 (vi) Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 7 of 104 TABLE OF AUTHORITIES (continued) Page(s) 5 U.S.C. § 554 ........................................................................................... 25 5 U.S.C. § 554(e) ....................................................................................... 45 5 U.S.C. § 706 ........................................................................................... 47 5 U.S.C. § 706(2)(A) .................................................................................. 23 28 U.S.C. § 2344.................................................................................... 4, 55 47 U.S.C. § 153(53) ................................................................................... 38 47 U.S.C. § 154(j) ...................................................................................... 72 47 U.S.C. § 203(a) ....................................................................................... 8 47 U.S.C. § 203(c) .................................................................................. 8, 24 47 U.S.C. § 203(c)(3) ................................................................................... 9 47 U.S.C. § 208.......................................................................................... 52 47 U.S.C. § 214(a) ............................................................................. passim 47 U.S.C. § 405(a)(2) ................................................................................. 68 Fed. R. App. P. 15(a)(1) ............................................................................ 55 Fed. R. App. P. 15(a)(2)(A) ....................................................................... 56 Fed. R. App. P. 15(a)(2)(C) ................................................................. 26, 56 Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (codified at 47 U.S.C. § 160) .................................................................. 9 47 C.F.R. § 1.2 ............................................................................... 25, 45, 48 47 C.F.R. § 63.505 ....................................................................................... 7 47 C.F.R. § 63.60(i) ................................................................................... 42 (vii) Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 8 of 104 TABLE OF AUTHORITIES (continued) Page(s) 47 C.F.R. § 63.71(a) .................................................................................... 7 47 C.F.R. § 63.71(a)(5) ........................................................................ 52, 63 47 C.F.R. § 63.71(a)(i) ................................................................................. 8 47 C.F.R. § 63.71(a)(ii) ................................................................................ 8 47 C.F.R. § 63.71(f)(1) ................................................................................. 8 47 C.F.R. § 63.71(f)(2) ............................................................................... 42 Other Authorities 82 Fed. Reg. 61453 ...................................................................................... 4 89 Cong. Rec. 766 (1943) ............................................................................ 7 Charles H. Koch, Jr. & Richard Murphy, Administrative Law and Practice (3d ed. 2010) ..................................................................... 70, 71 David Gabel & Steven Burns, The Transition from the Legacy Public Switched Telephone Network to Modern Technologies, National Regulatory Research Institute Report No. 12-12 (Oct. 2012) ................................................................................................. 9 10 H.R. Rep. No. 78-69 (1943) ......................................................................... 6 Letter from Vice President for Federal Regulatory Affairs, Verizon, to Secretary, FCC (filed Nov. 15, 2013, in WC Docket No. 13-150) ........................................................................................... 43 Petition for Review, U.S. Telecom Ass n v. FCC, No. 15-1414 (D.C. Cir.) ....................................................................................................... 14 (viii) Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 9 of 104 No. 17-73283 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GREENLINING INSTITUTE, PUBLIC KNOWLEDGE, THE UTILITY REFORM NETWORK, AND NATIONAL ASSOCIATION OF STATE UTILITY CONSUMER ADVOCATES, Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION AND UNITED STATES OF AMERICA, Respondents. On Petition for Review of an Order of the Federal Communications Commission BRIEF FOR THE RESPONDENTS INTRODUCTION Our nation s telecommunications networks are undergoing a vital and fundamental transformation: To enable new and better digital services, carriers have begun to deploy fiber and other modern network infrastructure to replace legacy copper networks that historically transmitted voice calls using circuit-switched technology. The order under review in this case reflects the Federal Communications - 1 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 10 of 104 Commission s considered, expert judgment of how best to foster that transition for the benefit of consumers. The Communications Act of 1934 (Communications Act or Act) and the FCC s implementing rules allow carriers to modify their network architecture without seeking permission from the agency. But when a carrier wishes to discontinue, reduce, or impair a  service that it provides, over whatever network facilities, the carrier must first obtain the agency s approval. 47 U.S.C. § 214(a). This distinction between the rules governing network changes and service discontinuances is longstanding; the order under review neither created nor disturbed it. The Commission instead took three actions relevant to this case: First, it revised its interpretation of when carriers must obtain the agency s approval to discontinue, reduce, or impair a service, concluding that  service is an ambiguous statutory term best defined by how carriers describe what they offer their customers in tariffs and service agreements. Second, the Commission repealed the  de facto retirement rule, which formerly required carriers to provide notice when they allowed a copper network to degrade to a degree functionally equivalent to removing or disabling that network (but which did not affect the - 2 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 11 of 104 separate requirement of obtaining FCC approval if that retirement had the effect of discontinuing, reducing, or impairing the customer s service). And third, the Commission repealed rules that required incumbent carriers to provide direct notice to retail customers and state governments when those carriers implemented a network change. The Commission took these actions to reduce regulatory uncertainty, promote the deployment of modern networks, and establish clear lines of accountability to ensure that devices and services such as fax machines and security systems are compatible with modern networks. Because the Commission s actions were reasonable, reasonably explained, and procedurally proper, the petition for review should be denied. JURISDICTIONAL STATEMENT The FCC actions that the petitioners challenge were adopted in an order and declaratory ruling released together on November 29, 2017. Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, 32 FCC Rcd 11128 [SER 1] (2017) (Order, Declaratory Ruling, or Combined Order). A summary of the Order, which promulgated revisions to certain FCC rules, was published in the Federal - 3 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 12 of 104 Register on December 28, 2017. 82 Fed. Reg. 61453. The Declaratory Ruling, an adjudicatory decision not published in the Federal Register, took effect upon release. Combined Order ¶ 193 [SER 70]. The petitioners sought review in this Court on December 8, 2017. See 28 U.S.C. § 2344. In their review petition, they challenged the Declaratory Ruling and a narrow portion of the Order: three paragraphs concerning the FCC s decision to repeal the de facto retirement rule. See Pet. 2 (Dkt. Entry 1-6). This Court has jurisdiction over those issues if the petitioners can meet their burden to establish Article III standing. They have not yet done so. See infra Part I. On April 24, 2018 well over 60 days from the Order s publication in the Federal Register the petitioners filed a  supplemental petition for review seeking to challenge the Commission s repeal of the retail customer and state government direct notice rules. Supp. Pet. 1 (Dkt. Entry 23). Because the initial petition for review did not identify those claims, the Court lacks jurisdiction to reach them. See infra Part IV-A. STATEMENT OF THE ISSUES 1. Do the petitioners have standing to bring this case? If so: - 4 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 13 of 104 2. Did the FCC exceed its authority, or act arbitrarily and capriciously, by (i) deciding that what constitutes a  service for which carriers must seek discontinuance approval under Section 214(a) of the Communications Act, 47 U.S.C. § 214(a), turns on how carriers have described their service offerings in tariffs or service agreements; and (ii) repealing the de facto retirement rule? 3. Does this Court have jurisdiction to reach the petitioners untimely challenges to the FCC s repeal of rules requiring direct notice of copper retirements to retail customers and state governments, and, if so, were the agency s actions arbitrary or capricious? PERTINENT STATUTES AND REGULATIONS Pertinent statutes and regulations are set forth in the statutory addendum bound with this brief. COUNTERSTATEMENT OF THE CASE A. Statutory and Regulatory Background 1. Title II of the Communications Act authorizes the FCC  to regulate common carrier services, including telecommunications services like landline telephone services. Cellco P ship v. FCC, 700 F.3d 534, 537 38 (D.C. Cir. 2012). Within Title II is Section 214(a), which provides in - 5 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 14 of 104 relevant part that, before a carrier may  discontinue, reduce, or impair service to a community, or part of a community, it must obtain approval from the FCC. 47 U.S.C. § 214(a). That provision of Section 214(a) was enacted during World War II, when competitive forces threatened domestic telegraph carriers and Congress allowed for them to merge. See H.R. Rep. No. 78-69, at 3 (1943). The legislative history of Section 214(a) reflects  a strong desire on the part of Congress  to protect Americans continued access to the nation s communications networks while also preserving carriers ability to upgrade their services without the interruption of federal micromanaging. Declaratory Ruling ¶ 133 [SER 50]. In adopting the bill that became Section 214(a), for example, the House of Representatives struck language from an earlier Senate draft that would have required FCC approval for a carrier to  abandon[] any  line, plant, office, or other physical facility. H.R. Rep. No. 78-69, at 2 (quoting the Senate bill). In the words of a conference committee manager, the negative consequence of that language would have been to require a company that sought merely to  move a wire from one House Office Building to the other . . . to - 6 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 15 of 104 go through the endless red tape of obtaining pre-approval from the Commission. 89 Cong. Rec. 766, 787 (1943) (Statement of Rep. Boren). Under the Commission s rules implementing Section 214(a), a carrier applying for the Commission s approval to discontinue a service must assemble information concerning (among other things) the areas and types of service affected; other carriers that serve the affected area; any prior discontinuance, reduction, or impairment of the carrier s service to the affected area; and any plans the carrier may have for such changes in the future. See 47 C.F.R. §§ 63.71(a),1 63.505. The carrier must also provide written notice to  all affected customers, the affected state s  public utility commission and . . . Governor,  any federally- recognized Tribal Nations with authority over [affected] Tribal lands, and  the Secretary of Defense. Id. § 63.71(a). Unless the Commission notifies the carrier-applicant otherwise, a discontinuance application will  be automatically granted after either 1 For convenience, we cite the version of Section 63.71 currently contained in the e-CFR. This version contains additional provisions not included in the version of the rule in place at the time of the Combined Order, because of later, unrelated amendments. The relevant rule parts remain unchanged. - 7 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 16 of 104 31 or 60 days.2 47 C.F.R. § 63.71(f)(1). But the Commission s rules provide for interested persons to object to discontinuance applications. Id. § 63.71(a)(i), (ii). And if, based on such objections or for other reasons, the Commission opts to prevent automatic approval, there is no set period within which the Commission must act. 2. Historically,  administrative ratesetting at the federal level required regulated utilities to submit their rates  in proposed tariff schedules. Verizon Commc ns, Inc. v. FCC, 535 U.S. 467, 478 (2002). In Title II, the tariff-filing requirement is set forth in Section 203(a). 47 U.S.C. § 203(a). Section 203(c) codifies the longstanding  filed-rate (or  filed-tariff ) doctrine. 47 U.S.C. § 203(c); Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524 U.S. 214, 222 (1998). Under that doctrine,  the rate of the carrier duly filed is the only lawful charge, and  [d]eviation from [that rate or other terms of the tariff] is not permitted upon any pretext. Id. (internal quotation marks omitted); see id. at 223. Thus, under Section 203(c), a 2 The shorter time applies to applications from carriers classified as  non- dominant, the longer to applications from  dominant carriers. 47 C.F.R. § 63.71(f)(1); see also Ad Hoc Telecomms. Users Comm. v. FCC, 572 F.3d 903, 906 (D.C. Cir. 2009) (describing the FCC s treatment of dominant and non-dominant carriers). - 8 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 17 of 104 carrier is  prohibited from  extend[ing] to any person any privileges with respect to a tariffed service except as specified in the tariff. Declaratory Ruling ¶ 141 [SER 53] (alteration in original) (quoting 47 U.S.C. § 203(c)(3)). Pursuant to authority conferred in the Telecommunications Act of 1996, Pub. L. No. 104-104, § 401, 110 Stat. 56, 128 29 (codified at 47 U.S.C. § 160), the FCC has in recent years elected to forbear from requiring carriers to tariff certain types of services. E.g., Ad Hoc, 572 F.3d at 904 05. Where the FCC has exercised its forbearance authority to  detariff services, carriers are permitted (or required) to enter into service agreements (i.e., contracts) with individual customers instead. See Declaratory Ruling ¶ 143 [SER 53 54]. B. Transition to Modern Technologies and Infrastructure For most of the last century, carriers provided telephone service over copper networks using time-division multiplexing technology.3 3 Time-division multiplexing allows multiple voice signals to be  transmitted over a single circuit by taking turns in individual time slots created on that circuit. David Gabel & Steven Burns, The Transition from the Legacy Public Switched Telephone Network to Modern Technologies, National Regulatory Research Institute Report No. 12-12, - 9 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 18 of 104 More recently, however,  [t]echnological innovation and private investment have revolutionized American communications networks, . . . making possible new and better service offerings, and bringing the promise of the digital revolution to more Americans than ever before. Combined Order ¶ 1 [SER 2].  As part of this transformation, consumers are increasingly moving away from traditional telephone services provided over copper wires and towards next-generation technologies using a variety of transmission means, including copper, fiber, and wireless spectrum-based services. Id. Modern fiber networks offer significant advantages over traditional copper-based ones. Among other things, they are more readily scalable and better suited to the transmission of Internet protocol (IP) data packets, which are now routinely used to provide voice service and an increasing array of data services. See Business Data Services in an Internet Protocol Environment, 32 FCC Rcd 3459, 3461 62 ¶ 3 (2017), aff d in relevant part, Citizens Telecomms. Co. v. FCC, 901 F.3d 991 (8th Cir. 2018). at 1.n1 (Oct. 2012), http://nrri.org/download/nrri-12-12-telephone- transition/. - 10 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 19 of 104 In addition to providing IP-based services, carriers use fiber networks to provide voice service by time-division multiplexing. See Order ¶ 46 [SER 20 21]; 06/15/2017 Comments of Verizon 29 [SER 276] (Verizon Comments). When carriers abandon time-division multiplexing technology, however, customers sometimes need to replace equipment or services, such as fax machines or medical alert systems, that do not work using IP-technology. Declaratory Ruling ¶ 150 [SER 57]. C. History of the FCC s Technology Transitions Proceedings Since at least 2014, the Commission has been actively overseeing the  historic technology transitions that are transforming our nation s voice communications services. Technology Transitions, 29 FCC Rcd 1433, 1435 ¶ 1 (2014) (2014 Notice). Throughout that time, the Commission has made clear that its  over-arching purpose . . . is to speed technological advances, while also protecting consumers. Id. at 1441 ¶ 23; see Order ¶ 41 [SER 18 19]; Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, 32 FCC Rcd 3266, 3267 ¶ 1 [SER 288] (2017) (2017 Notice and Request for Comment); Technology Transitions, 30 FCC Rcd 9372, 9373 ¶ 1 (2015) (2015 Order); Ensuring Customer Premises Equipment Backup Power for - 11 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 20 of 104 Continuity of Communications Technology Transitions, 29 FCC Rcd 14968, 14969 ¶ 1 (2014) (2014 Order). 1. 2014 Order As of 2014, the Commission required incumbent carriers to comply with certain  network change disclosure rules before retiring copper network facilities, but those rules did  not define  copper retirement.  2014 Order, 29 FCC Rcd at 14993 ¶ 50. The Commission therefore sought comment on the term s definition. Id. at 14994 ¶ 52. In particular, given reports that incumbent carriers were effectively depriving consumers of basic telephone service by failing to maintain legacy copper facilities, the Commission asked whether it should  define retirement to include de facto retirement, i.e., failure to maintain copper that is the functional equivalent of removal or disabling. Id. at 14994 ¶ 53. The Commission also proposed to require incumbent carriers to provide notice of copper retirements directly to their affected retail customers, id. at 14997 ¶ 61, and to state governors and public utilities commissions, id. at 15002 03 ¶ 79. At the same time by a 3-2 vote, with then-Commissioner Pai and Commissioner O Rielly dissenting the Commission issued a declaratory - 12 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 21 of 104 ruling that the determination  whether a change constitutes a discontinuance, reduction, or impairment of service for purposes of Section 214(a) of the Act, 47 U.S.C. § 214(a), should be made using a  functional test. 2014 Order, 29 FCC Rcd at 15015 ¶ 114. The Commission reached that conclusion based largely on the language in Section 214(a) that  prohibits a carrier from discontinuing, reducing, or impairing service to  a community, or part of a community without prior Commission authorization. Id. at 15015 16 ¶ 115 (quoting 47 U.S.C. § 214(a)). The Commission interpreted that language to mean that a carrier s description of its services is only one factor relevant to whether a carrier must file a discontinuance application. Id. The analysis of what constitutes a service, the Commission concluded, is properly governed by  a functional approach that evaluates the totality of the circumstances, including what a carrier s customers  reasonably would view as the service provided. Id. 2. 2015 Order The United States Telecom Association (USTelecom) petitioned for agency reconsideration of the Commission s functional test. 2015 Order, 30 FCC Rcd at 9471 ¶ 181. The Commission denied that petition in 2015, - 13 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 22 of 104 continuing to interpret  service from the functional perspective of a carrier s customers. See id. at 9471 78 ¶¶ 181 201. Then-Commissioner Pai and Commissioner O Rielly again dissented. The Commission simultaneously adopted various changes to its network change disclosure rules, also by a 3-2 vote. Among other things, the Commission adopted in modified form its proposed rules requiring carriers to give direct notice of copper retirements to retail customers and state governments. See 2015 Order, 30 FCC Rcd at 9394 410 ¶¶ 38 67 (retail customers); id. at 9411 13 ¶¶ 69 71 (state governments). The Commission also adopted the de facto retirement rule, defining copper retirements for which carriers must provide notice to include  any failure to maintain copper loops, subloops, or the feeder portion of such loops or subloops that is the functional equivalent of removal or disabling. Id. at 9421 ¶ 90 (internal quotation marks omitted); see id. at 9421 23 ¶¶ 89 92. USTelecom sought judicial review of the FCC s reaffirmation of the functional test (and other aspects of the 2015 Order not now relevant). U.S. Telecom Ass n v. FCC, No. 15-1414 (D.C. Cir.). In view of later developments, including the litigation here, that case is in abeyance. - 14 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 23 of 104 3. 2017 Notice and Request for Comment Following the 2016 presidential election, the leadership and composition of the Commission changed. Two of the three commissioners who had supported the 2015 Order, including the then-chairman, departed the agency. In April 2017, under the new leadership of Chairman Pai, the Commission voted unanimously to issue a combined notice of proposed rulemaking, notice of inquiry, and request for comment concerning whether to revise policies related to those orders. See generally 2017 Notice and Request for Comment [SER 287 350]. Among other things, the Commission sought comment on  how best to handle incumbent [carrier] copper retirements going forward to prevent unnecessary delay and capital expenditures on this legacy technology while protecting consumers. Id. ¶ 58 [SER 305]. The Commission also asked whether the agency s 2015 amendments to its network change disclosure rules had  been effective in protecting competition and consumers or had  hindered next-generation network investment. Id. And the Commission sought comment on retaining the de facto retirement rule. Id. ¶ 60 [SER 305]. - 15 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 24 of 104 The Commission further proposed to  revisit its  functional approach to interpreting Section 214(a), 2017 Notice and Request for Comment ¶ 115 [SER 323], in favor of judging what constitutes a service in this context by the carriers description of their offerings in tariffs or service contracts, id. ¶ 116 [SER 323]. The Commission designated its questions on this subject  as a  Request for Comment,  rather than a notice of proposed rulemaking, because its contemplated action  would be adjudicatory in nature  like the 2014 declaratory ruling that first announced the functional test. Id. ¶ 115 n.167 [SER 323]. D. Order under Review The proceeding initiated by the 2017 Notice and Request for Comment resulted in the Combined Order, adopted in a 3-1 vote. 1. The Declaratory Ruling Revising the Commission s Interpretation of Section 214(a) The Commission determined in the Declaratory Ruling that  a carrier s description in its tariff or customer service agreement in the absence of a tariff is dispositive of what comprises the  service being offered by that carrier for purposes of determining whether . . . discontinuance authority under Section 214(a) of the Act, 47 U.S.C. § 214(a),  is required. Declaratory Ruling ¶ 128 [SER 49]. In - 16 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 25 of 104 reaching that determination, the Commission acknowledged that it was  revers[ing] the agency s prior interpretation of that ambiguous statutory term. Id. And the Commission explained in detail why its revised view is more consistent with the text and purposes of the Act. The Commission looked first to the language of Section 214(a).  The statute, the Commission explained,  refers to a carrier s service, not  the uses of the service by customers. Declaratory Ruling ¶ 131 [SER 50] (emphasis added); see 47 U.S.C. § 214(a). That implies, the Commission reasoned,  that such uses cannot be used to proscribe or restrict the limits of such service. Declaratory Ruling ¶ 131 [SER 50]. The Commission also explained why the structure of Title II of the Act supports the agency s revised view. Declaratory Ruling ¶¶132 136 [SER 50 51]. To begin with, the Commission observed, Title II never uses the term  service to describe third-party services transmitted over the carrier s service. Id. ¶ 132 [SER 50]. And importantly, Title II contains Section 203(c), which codifies the filed-rate doctrine and must be read in concert with Section 214(a). Id. Because Section 203(c) bars customers from demanding features or functionalities not included in their carriers tariffs, the Commission reasoned,  carriers need not apply for - 17 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 26 of 104 Commission authorization under [S]ection 214(a) when seeking to discontinue services that are absent from their tariffs. Id. ¶ 135 [SER 51]. The Commission further explained why eliminating the functional test is consistent with the seminal  Carterfone decision, in which the Commission first held that customers may attach third-party devices (e.g., telephones not supplied by their carrier) to their carrier s network. Use of the Carterfone Device in Message Toll Telephone Service, 13 F.C.C.2d 420 (1968); see Declaratory Ruling ¶¶ 137 140 [SER 51 53]. As the Commission emphasized here, the agency made clear in Carterfone that when  telephone network technology and standards change[], third- party attachments  must be rebuilt to comply with the revised standards, or customers must  discontinue [the attachments ] use   for such [is] the risk inherent in the private ownership of any equipment to be used in connection with the [carrier s] telephone system. Id. ¶ 137 [SER 51] (internal quotation marks omitted). The Commission explained that the agency had not given proper weight to that holding when adopting the functional test. Id. - 18 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 27 of 104 The Commission next explained why  [t]raditional principles of contract law also support [its] decision. Declaratory Ruling ¶ 143 [SER 53]. Under those principles,  the terms of the contract control, regardless of the parties subjective intentions as shown by extrinsic evidence. Id. (internal quotation marks omitted). Thus, for detariffed services consistent with Section 203 and the filed-rate doctrine for tariffed services it is  the terms of a carrier s service agreement with a customer [that] define its obligations to that customer. Id. Finally, the Commission predicted that its revised interpretation of Section 214(a) would improve clarity for carriers and customers, Declaratory Ruling ¶ 148 [SER 56], eliminating the  substantial uncertainty that the functional test had generated, id. ¶ 155 [SER 60]. The Commission deemed it unreasonable to expect carriers to anticipate  all of the myriad ways in which their services are used by customers. Id. ¶ 148 [SER 56]. The  objective interpretive approach adopted in the Declaratory Ruling, the Commission predicted, will  free[] carriers to take  funds and resources formerly allocated to regulatory compliance and devote them instead to  next-generation networks and services [for] more Americans. Id. ¶ 149 [SER 57]. - 19 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 28 of 104 2. The Order Adopting Rule Revisions In the accompanying Order, the Commission determined that  consumers receive[d] no . . . benefit from notice under the de facto retirement rule, because the notice of network changes required by the terms of that rule was not prospective. Order ¶ 37 [SER 17]. Rather, the Commission recognized, that notice requirement arose only once a carrier s  failure to maintain copper [wires] caused deterioration to a degree  functional[ly] equivalent to  remov[ing] or disabling them. 2015 Order, 30 FCC Rcd at 9501 (Appendix A); see Order ¶ 37 [SER 17]. The Commission saw  no practical way to compel incumbent carriers to provide notice of that circumstance ahead of time. Id. And  [i]f copper deterioration is causing service quality issues, the Commission reasoned, after-the-fact  notice that copper deterioration is the reason . . . provides no benefit to . . . customers. Id. ¶ 38 [SER 17]. Moreover, the Commission explained, because the Communications Act gives carriers  the authority to design their networks and choose their own architecture, the agency s network change disclosure rules have never required carriers to seek permission for network changes. See Order ¶ 39 [SER 17 18]. Pre-approval from the agency is required only - 20 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 29 of 104 when service is discontinued (or reduced or impaired), and that requirement stems from Section 214(a), 47 U.S.C. § 214(a), not from the agency s definition of copper retirement, Order ¶ 39 [SER 17 18]. Thus, in the Commission s view, the de facto retirement rule offered no meaningful benefit to customers who would prefer to continue receiving their service over legacy copper facilities when a carrier wished to modernize its network by replacing copper facilities with fiber. See id. And if a carrier wished to discontinue providing service altogether, or to  impair service by failing to maintain its copper facilities, the protection for customers came from Section 214(a) not from the de facto retirement rule. See id. The Commission also decided that any benefit from the retail customer and state government direct notice rules was not worth the associated burden. See Order ¶¶ 44 51 [SER 20 23]; id. ¶¶ 56 57 [SER 25]. The Commission found that the requirement of direct notice to retail customers had not, in fact, reduced consumer confusion and allowed for a smoother transition to modern networks, but instead had  caused confusion and delay. Id. ¶ 45 [SER 20]. And in the Commission s judgment, incumbent carriers do not need an FCC mandate to educate - 21 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 30 of 104 their customers when those carriers face stronger pressure from competitors than ever before. Id. Moreover, the Commission explained, network changes do not necessarily involve the loss (or diminishment) of service, see id. ¶ 56 [SER 25], and states remain free to impose their own notice requirements if they choose, id. ¶ 57 [SER 25]. STANDARD OF REVIEW 1. Review of the Commission s interpretation of Section 214(a) of the Act, 47 U.S.C. § 214(a), is governed by Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984). Under Chevron, if, as here, a  statute is silent or ambiguous on an issue,  the question is whether the agency has adopted  a permissible construction of the statute. New Edge Network, Inc. v. FCC, 461 F.3d 1105, 1110 (9th Cir. 2006) (quoting Chevron, 467 U.S. at 843). An agency is free to change its interpretation of an ambiguous statute so long as it  adequately explains the reasons for [its] reversal of policy. Nat l Cable & Telecomms. Ass n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005). The agency  need not demonstrate to a court s satisfaction that the reasons for the new policy are better than the reasons for the old one. FCC v. Fox Television Stations, Inc., 556 U.S. - 22 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 31 of 104 502, 515 (2009). And an agency may shift course based not only on changed circumstances, but also on a re-weighing of policies after a  change in administrations. Brand X, 545 U.S. at 981; see Organized Village of Kake v. USDA, 795 F.3d 956, 968 (9th Cir. 2015) (en banc) ( Elections have policy consequences. ). 2. Review in this case more generally is governed by the  arbitrary and capricious standard of the Administrative Procedure Act (APA). See 5 U.S.C. § 706(2)(A). In cases like this one, involving  competing policy choices and  predictive market judgments, that standard  is particularly deferential. Ad Hoc, 572 F.3d at 908; see FCC v. Nat l Citizens Comm. for Broad., 436 U.S. 775, 814 (1978). 3. The FCC s compliance with the APA s notice-and-comment requirements is reviewed de novo. See Reno-Sparks Indian Colony v. EPA, 336 F.3d 899, 909 n.11 (9th Cir. 2003). SUMMARY OF THE ARGUMENT 1. The petitioners fail to carry their burden to demonstrate Article III standing. Their claim of  associational standing supported by only a single, unsubstantiated sentence in their brief is insufficient. They also fail to identify any individual member who could show the required - 23 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 32 of 104 elements of standing as to any one (let alone all) of the petitioners claims. Accordingly, as the record now stands, the Court should dismiss the petition for review for lack of jurisdiction, without reaching any of the petitioners claims on the merits. 2. Should the petitioners establish standing to bring one or more of their claims, those claims uniformly fail. a. The Commission reasonably concluded in the Declaratory Ruling that what constitutes a  service for purposes of the discontinuance provision of Section 214(a) of the Act, 47 U.S.C. § 214(a), should be determined from the perspective of how a carrier describes what it will provide customers in its tariff or service agreements. That interpretation best reconciles Section 214(a) with Section 203(c) of the Act, 47 U.S.C. § 203(c), under which carriers may not offer, and customers may not demand, features or functionalities not included in the carriers tariffs. Likewise, the Commission reasonably understood Carterfone to support placing the burden of adapting third-party devices, when a carrier s network technology and standards change, on the makers and users of those devices. - 24 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 33 of 104 The Commission s decision was procedurally proper. The agency routinely and appropriately issues declaratory rulings to  remov[e] uncertainty, 47 C.F.R. § 1.2, such as the confusion that the functional test engendered concerning when discontinuance applications are required. And because the Declaratory Ruling was an adjudication, the Commission was free to adopt it without adhering to the APA s notice- and-comment requirements, which apply only to rulemakings. See 5 U.S.C. §§ 553, 554. Even if the Declaratory Ruling could be considered a rulemaking, the Commission s revised interpretation of  service in Section 214(a) was at most an  interpretive rule, not a  legislative one meaning the APA s notice-and-comment requirements would still not apply. The Commission s procedure, moreover, caused the petitioners no harm; they presented all arguments on which they now rely in challenging the Declaratory Ruling in their multiple responses to the FCC s  Request for Comment. b. The agency s decision in the Order to repeal the de facto retirement rule was likewise reasonable and reasonably explained. The Commission rationally deemed the rule unnecessary when there was no practical way to require carriers to give notice of qualifying network - 25 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 34 of 104 breakdowns ahead of time, and when incumbent carriers have incentives to keep customers well informed without need for an FCC-imposed notice requirement. c. Regardless of the petitioners standing, this Court lacks jurisdiction to review the Commission s repeal of the retail customer and state government direct notice rules. A petition for review must  specify the order or part thereof to be reviewed. Fed. R. App. P. 15(a)(2)(C). The original petition for review here designated the three paragraphs repealing the de facto retirement rule as the sole portion of the Order challenged. And the petitioners mediation statement reaffirmed this case s narrow scope. Only months after the statutory window for review petitions closed did the petitioners raise the Commission s repeal of the copper retirement direct notice rules. Because the statutory window for challenging FCC orders is jurisdictional, the supplemental petition for review raising the copper retirement direct notice issues should be dismissed. In any event, the FCC s repeal of the direct notice rules was sound. The Commission reasonably determined that the predicted benefits of mandating direct notice to retail customers had not come to pass, and it - 26 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 35 of 104 reasonably explained its decision to repeal that rule as unnecessary. The Commission likewise sensibly explained why the state government direct notice rule is not needed. Among other things, as to both the retail customer and state government direct notice rules, the Commission observed that many states can and have adopted their own, state-level notice rules, which the Order does not preempt. 3. Finally, neither the petitioners nor their supporting amicus curiae has overcome the strong presumption of regularity that attaches to agency decisionmaking. The Commission solicited comment on the Combined Order, gave the public ample time to respond, and addressed the public input it received. Although two of the three commissioners who voted to adopt the Combined Order dissented from the Commission s earlier technology transitions orders, that does not show prejudgment. It is not inappropriate for agency decisionmakers to hold existing policy preferences or approach a proceeding with preconceptions regarding the proper application of relevant law; that is a routine feature of the administrative process. - 27 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 36 of 104 ARGUMENT I. THE PETITIONERS HAVE NOT MET THEIR BURDEN TO ESTABLISH STANDING.  One of the essential elements of a legal case or controversy is that [a] plaintiff have standing to sue. Trump v. Hawaii, 138 S. Ct. 2392, 2416 (2018). The Supreme Court has repeatedly noted that  the  irreducible constitutional minimum of standing consists of three elements. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).  The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision. Id. In all cases, the burden of demonstrating standing falls on the party who asserts jurisdiction. E.g., Spokeo, 136 S. Ct. at 1547. Each element of standing  must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). In cases like this, involving direct appellate review of an agency s order,  the petitioner s burden of production . . . is . . . the same as that of a plaintiff moving for - 28 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 37 of 104 summary judgment in the district court: it must support each element of its claim to standing by affidavit or other evidence, including whatever evidence the administrative record may already contain. Util. Workers Union v. FERC, 896 F.3d 573, 577 (D.C. Cir. 2018) (internal quotation marks omitted); accord Tenn. Republican Party v. SEC, 863 F.3d 507, 517 (6th Cir. 2017); Iowa League of Cities v. EPA, 711 F.3d 844, 869 70 (8th Cir. 2013); Citizens Against Ruining the Env t v. EPA, 535 F.3d 670, 675 (7th Cir. 2008). Under the doctrine of  associational, or  organizational, standing, an organization such as the Greenlining Institute that purports to sue on behalf of its members must show that  its members would otherwise have standing to sue in their own right, that  the interests at stake are germane to the organization s purpose, and that  neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). Unless  all . . . members of the organization are affected by the challenged activity, the organization must specifically identify at least one member who would have individual standing to sue. Summers v. Earth Is. Inst., 555 U.S. 488, 499 (2009); see - 29 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 38 of 104 id. at 498 ( [We] have required plaintiff-organizations to make specific allegations establishing that at least one identified member had suffered or would suffer harm. (emphasis added)); Chamber of Commerce v. EPA, 642 F.3d 192, 200 (D.C. Cir. 2011) ( When a petitioner claims associational standing, it is not enough to aver that unidentified members have been injured. Rather, the petitioner must specifically identify members who have suffered the requisite harm. (citation and internal quotation marks omitted)). Here, the petitioners purport to establish standing on the basis of a single sentence in their brief: They assert that  Greenlining . . . has standing . . . as a nonprofit advocacy organization that represents members in California currently subscribed to copper lines provided by incumbent . . . carriers. 4 Br. 13. That assertion not only lacks the required evidentiary support but also fails to identify any individual Greenlining member who can satisfy the constitutional requirements of injury in fact, causation, and redressability. See Summers, 555 U.S. at 498. We acknowledge that this Court has said there would be  no purpose 4 The other petitioners make no claim of standing in their own right; they merely  join Greenlining in [its] petition for review. Br. 13. - 30 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 39 of 104 to . . . requiring an organization to identify by name the member or members injured by an agency s action when  it is relatively clear, rather than merely speculative, that one or more members have been or will be adversely affected by [that] action. Nat l Council of La Raza v. Cegavske, 800 F.3d 1032, 1041 (9th Cir. 2015). But that is not the case here, where it is far from clear that Greenlining has members affected by the challenged FCC actions. The petitioners challenge to the FCC s repeal of the state government direct notice rule exemplifies this point. The petitioners have represented that  [t]he Greenlining Institute is a private, non-profit organization. Br. i. It is thus unclear why eliminating a required notice to state governments would injure Greenlining s members. Similarly, it is unclear why Greenlining s  members in California have standing to challenge the repeal of the de facto retirement rule. Br. 13. As the Commission observed in the Order, California is a jurisdiction with  state-level service quality requirements that make the concept of de facto retirement redundant. Order ¶ 39 & n.141 [SER 18]; see 06/15/2017 Comments of CALTEL 8 [SER 216] (CALTEL Comments) (calling California s state-level requirements the  best defense against - 31 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 40 of 104 de facto retirement). It is the petitioners burden to show why repealing the de facto retirement rule injured Greenlining s California members. It is likewise not self-evident that any Greenlining member has suffered injury from the Commission s decisions to revisit the agency s functional test and repeal the retail customer direct notice rule. The petitioners assert that Greenlining has  members in California currently subscribed to copper lines provided by incumbent . . . carriers. Br. 13. But the petitioners never claim let alone prove that those members live in areas of California in which there is a substantial risk that a member s carrier will retire copper facilities or discontinue, reduce, or impair time-division multiplexed service in a manner that will prevent the member s third-party devices from functioning. Without such a showing, the petitioners cannot establish standing to challenge the Declaratory Ruling or the repeal of the retail customer direct notice rule. See, e.g., Mont. Envtl. Info. Ctr. v. Stone-Manning, 766 F.3d 1184, 1189 (9th Cir. 2014) (no organizational standing where the petitioner failed to show that its members faced at least a  substantial risk of harm (internal quotation marks omitted)). - 32 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 41 of 104 As the record now stands, this Court must dismiss the petition for review in its entirety for lack of jurisdiction.5 We explain below why each of the petitioners claims nonetheless fails on the merits, and why their claims concerning the 2015 direct notice rules fail for lack of jurisdiction irrespective of standing. II. THE FCC S INTERPRETATION OF SECTION 214(a) WAS REASONABLE AND PROCEDURALLY PROPER. In providing that  [n]o carrier shall discontinue, reduce, or impair service to a community, or part of a community, without first obtaining a certificate of authorization from the FCC, 47 U.S.C. § 214(a), Congress did not define  service  as the petitioners recognize (Br. 45). The Commission has thus consistently viewed that term as ambiguous. See Declaratory Ruling ¶¶ 130 131 [SER 50]; 2015 Order, 30 FCC Rcd at 9476 ¶ 198. When the Commission determined in the Declaratory Ruling that a  service in this context turns on what carriers have agreed to provide in their tariffs or service agreements, it expressly acknowledged 5 In cases challenging agency decisions, this Court has allowed petitioners  to establish standing anytime during the briefing phase. Nw. Envtl. Def. Ctr. v. Bonneville Power Admin., 117 F.3d 1520, 1528 (9th Cir. 1997). Should the petitioners seek to bolster their showing on reply, it would be appropriate to grant the respondents and intervenors an opportunity to respond by surreply. - 33 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 42 of 104 that it was reversing the agency s prior  functional interpretation of Section 214(a). Declaratory Ruling ¶ 128 [SER 49]. The agency s sound analysis of that change is entitled to Chevron deference. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 26 (2016); accord id. at 2128 (Ginsburg, J., concurring). A. The Declaratory Ruling Was Reasonable. Neither Section 214(a) nor any other portion of Title II uses the term  service to refer to anything other than a carrier s offering. See Declaratory Ruling ¶¶ 131 136 [SER 50 51]. The Commission acknowledged that Section 214(a) concerns service  to a community, or part of a community, 47 U.S.C. § 214(a) the language on which the agency had previously relied in adopting a  functional interpretation. Declaratory Ruling ¶ 134 [SER 50 51]. But in the Commission s revised judgment, that language merely  defines the scope of individuals affected before an application must be filed, and  does not modify  service.  Id. That view is reasonable, particularly given the legislative history of Section 214(a), which indicates that Congress rejected  language that would have required carriers to wade through the  red tape of seeking - 34 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 43 of 104 Commission approval for a network change that did not affect the carrier s service. Id. ¶ 133 [SER 50] (internal quotation marks omitted). It was likewise reasonable for the Commission to conclude that Section 203  provides the best evidence of Congress s understanding of what constitutes a  service  in this context. Declaratory Ruling ¶ 135 [SER 51]. Because Section 203 bars carriers  from offering benefits which are absent from their tariffs, id., customers cannot demand features or functionalities not included in the tariff not even if a carrier has fraudulently misrepresented the capabilities of its tariffed service. See AT&T, 524 U.S. at 222; Marcus v. AT&T Corp., 138 F.3d 46, 57 65 (2d Cir. 1998). As the Commission reasoned, it seems implausible that Congress  intended for carriers to seek authorization to discontinue services that they were prohibited from offering to customers. Declaratory Ruling ¶ 135 [SER 51]; see id. ¶ 141 [SER 53]. The Commission also reasonably relied on the seminal Carterfone decision, which first announced the requirement that carriers allow interconnecting third-party devices on their networks. See Declaratory Ruling ¶ 137 [SER 51 52]. Carterfone makes plain that when  telephone network technology and standards change[], customers will have to - 35 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 44 of 104 discontinue using any incompatible third-party equipment;  such [is] the risk inherent in the private ownership of any equipment to be used in connection with the telephone system. Id. [SER 51] (internal quotation marks omitted); accord Carterfone, 13 F.C.C.2d at 424. Consistent with Carterfone, the Commission reasonably concluded that placing the burden of adapting third-party devices (such as fax machines) on the devices manufacturers, which operate in a highly competitive market, was an efficient way to  minimize the impact on consumers . . . of third- party [equipment] and service obsolescence. Declaratory Ruling ¶ 150 [SER 57]. The remaining aspects of the Commission s analysis were similarly rational and adequately explained. The Commission s assertion that, for detarriffed services,  the terms of a carrier s service agreement with a customer define its obligations to that customer and vice versa is a routine application of contract law. Declaratory Ruling ¶ 143 [SER 53 54]. And the Commission s prediction that eliminating the functional test will promote investment in next-generation network facilities and services, id. ¶¶ 149 151 [SER 57 58], is well within the agency s - 36 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 45 of 104 discretion, see Ad Hoc, 572 F.3d at 908; National Citizens, 436 U.S. at 814. B. The Petitioners Substantive Attacks on the Declaratory Ruling Fail. The petitioners contend that what constitutes a service, for purposes of Section 214(a) discontinuance review, is  [u]nambiguously a functional determination. Br. 45. In the alternative, they contend that the Commission did not adequately explain its contrary interpretation of the statute. Br. 63 65. Neither challenge has merit. The petitioners first argue that dictionary definitions of service include no reference to tariffs, and that the Commission thus lacked discretion to interpret  service in Section 214(a) the way that it did. Br. 45 46. But the Court s task at Chevron step one is to determine  whether Congress has directly spoken to the precise question at issue. 467 U.S. at 842. The petitioners concede that Congress has not defined  service in Section 214(a). Br. 45. And they identify nothing in any dictionary that would preclude the Commission from defining that term from the perspective of the offering (rather than the purchasing) party. Likewise, in arguing that the Communications Act  [n]owhere . . . equate[s]  service with  tariff (or service contract), Br. 47, the - 37 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 46 of 104 petitioners identify nothing in the Act that forecloses the Commission s view that  service in this context should be determined from the perspective of what the offeror has agreed to provide. The petitioners cite various definitions from Title I of the Act. Br. 46. Their supporting amicus curiae, the California Public Utilities Commission (California Commission), gives particular emphasis to the definition of  telecommunications service. Amicus Br. 13 16. But none of those definitions removes the statutory ambiguity discussed above or forecloses the FCC s interpretation of  service in the context of Section 214(a) discontinuance. In particular,  telecommunications service is defined as  the offering of telecommunications for a fee directly to the public . . . regardless of the facilities used. 47 U.S.C. § 153(53) (emphasis added). And the question of what regulatory classification should apply to a given service e.g., whether something is a  cable service or a  telecommunications service as those terms are defined in 47 U.S.C. § 153 involves different considerations from determining what constitutes a service for which a carrier must obtain discontinuance approval under Section 214(a). Declaratory Ruling ¶ 147 [SER 55 56]. - 38 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 47 of 104 Taking account of a customer s perspective when making a regulatory classification, the Commission reasoned, would not implicate the filed- rate doctrine or  inject uncertainty in the same manner as here. Id. [SER 56]. Whereas a regulatory classification decision resolves the future treatment of a given service, applying a functional approach in the discontinuance context would leave carriers  guess[ing] at the regulator s view concerning subjective evidence every time they [made] a change to their services. Id.6 The petitioners further argue that,  [i]f Congress had intended to limit the scope of  service covered by Section 214(a) to the tariff, it would have said so explicitly. Br. 48. But the Commission reasonably determined that, because  carriers are prohibited under [S]ection 203(c) from offering benefits which are absent from their tariffs, there was no need for Congress to use the term  tariff in Section 214(a). Declaratory Ruling ¶ 135 [SER 51]. In other words,  Congress could not plausibly 6 There is thus no merit to the California Commission s claim (Amicus Br. 14) that the Commission did not adequately address the definition of  telecommunications service. In addition, the California Commission s argument that the definition  does not expressly refer to a carrier s tariffs (Amicus Br. 15) is one that the Commission rejected as unpersuasive concerning Sections 214(a) and 214(c). See Declaratory Ruling ¶¶ 135 136 [SER 51]; infra pp. 39 40. - 39 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 48 of 104 have intended for carriers to seek authorization to discontinue services that they were prohibited from offering to customers. Id. Insofar as the petitioners argue (Br. 47) that the Commission s reading of  service is inconsistent with the language of Section 214(c) because Section 214(c) does not use the word  tariff, the same logic applies. The Commission reasonably believed it was  unnecessary for Congress to separately use the term  tariff in [S]ection 214(c) when Section 203(c)  clearly established[] tariff-based limits on what carriers may offer as part of their service. Declaratory Ruling ¶ 136 [SER 51]. In addition, the Commission properly concluded that the reference in Section 214(c) to the  discontinuance, reduction, or impairment of service, described in the application indicates that Section 214(c)  is not referencing the carrier s service generally,  but merely the planned discontinuance described in its [Section 214(a)] application to the Commission. Declaratory Ruling ¶ 136 [SER 51]. The petitioners are thus mistaken that Section 214(c) requires the Commission to interpret  service for discontinuance purposes more broadly than what a carrier describes in its tariff or service agreement. Br. 47 48. - 40 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 49 of 104 The Commission also reasonably rejected the related contention (Br. 64) that the Commission s interpretation of  service in the Declaratory Ruling is inconsistent with its assertion of authority over detariffed services when reviewing mergers. Declaratory Ruling ¶ 140 [SER 53]. To begin with, Public Knowledge rested that argument before the agency on the premise that the words  line and  service in Section 214(a) mean the same thing. 06/15/2017 Comments of Public Knowledge 10 [SER 256] (Public Knowledge Comments); see Declaratory Ruling ¶ 140 [SER 53]. As the Commission recognized, there is no reason to adopt that view when those terms appear in  separate provision[s] of [S]ection 214(a). Id.  Second and more importantly, the Commission explained,  the Commission can and does exercise authority over transactions and discontinuances involving detariffed services. Id. Thus, contrary to what the petitioners contend (Br. 63 64), there is no  unexplained inconsistency in the Commission s interpretation of  service for purposes of Section 214(a) discontinuance review and FCC precedent in the context of mergers. Likewise, it is not true that the Commission  fail[ed] to explain why it reversed course and found persuasive the exact same industry - 41 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 50 of 104 arguments concerning the filed-rate doctrine that  it previously rejected. Br. 65. Agencies are free to change their minds, and the Commission plainly did explain why it found the filed-rate doctrine significant. Declaratory Ruling ¶¶ 141 142 [SER 53]. In particular, contrary to the petitioners assertions (Br. 63, 65), the Commission addressed why its interpretation of Section 214(a) is consistent with applying the discontinuance process to detariffed services:  Where there is freedom to bargain, the contract takes the place of the tariff in providing the objective delineation of the bargain between the parties. Declaratory Ruling ¶ 146 [SER 55]. As to the petitioners complaint that the Commission made  no mention of [its] experience with Fire Island (Br. 57), there is no reason the Commission should have done so. The action Verizon took after Superstorm Sandy filing a discontinuance application when it sought to substitute a wireless service for time-division multiplexed service over damaged copper facilities is the same action that would be required today under the Declaratory Ruling. Nothing in the Declaratory Ruling obviates a carrier s duty to file a discontinuance application when it eliminates landline service. See 47 C.F.R. §§ 63.60(i), 63.71(f)(2); - 42 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 51 of 104 Declaratory Ruling ¶ 43 [SER 19]. Indeed, although Verizon amended the discontinuance application it filed after Superstorm Sandy to remove Fire Island when it decided to deploy fiber there, that application remains pending as to areas in New Jersey where Verizon seeks to deploy VoiceLink to replace the legacy voice service it continues to provide there over an aging copper network. See Letter from Vice President for Federal Regulatory Affairs, Verizon, to Secretary, FCC at 1 (filed Nov. 15, 2013, in WC Docket. No. 13-150), https://ecfsapi.fcc.gov/file/7520957871.pdf. To be sure, in the 2015 Order, the Commission cited the Fire Island episode as evidence not only that network changes sometimes result in service discontinuance, e.g., 2015 Order, 30 FCC Rcd at 9382 83 ¶ 14 a conclusion that the Declaratory Ruling does not change but also that modern networks  may not support certain third-party services and devices . . . that functioned well on the legacy network, id. at 9471 ¶ 182, and that consumers sometimes consider the functioning of such devices part of their carrier s service when the carrier does not, see id. But the Commission acknowledged those same points in the Combined Order. See, e.g., Order ¶ 46 [SER 20] ( We recognize the reliance consumers place on the functioning of equipment that connect[s] to incumbent - 43 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 52 of 104 [carriers ] legacy networks, such as fax machines, alarm systems, and health monitoring devices. ); Declaratory Ruling ¶ 150 [SER 57] ( We recognize that some consumers may lose the ability to use some legacy customer premises equipment . . . and third-party services under the [revised interpretation of  service ] without Commission approval. ). Taking those considerations into account, and acknowledging its departure from the agency s previously announced view, the Commission in 2017 concluded for the reasons detailed above including that the burden of ensuring the compatibility of third-party devices with modern networks is most appropriately placed on the devices manufacturers that a  service for purposes of Section 214(a) discontinuance review is best judged from the offeror s terms. That reasonable and reasonably explained judgment is entitled to deference. E.g., Brand X, 545 U.S. at 981. C. The Petitioners Procedural Attacks on the Declaratory Ruling Fail. 1. Notice and Comment Was Not Required. The petitioners principal procedural challenge to the Declaratory Ruling is that, because the Commission issued a  request for comment on its proposed reinterpretation of Section 214(a) rather than a notice - 44 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 53 of 104 of proposed rulemaking the agency failed to give interested parties adequate notice. Br. 61. The petitioners also charge that the Commission  went out of its way to obscure that it would use the record developed in the instant proceeding to reverse the functional test. Id. at 60. These challenges are unfounded. The APA requires notice and comment only for rulemakings under Section 553 of the APA. See 5 U.S.C. § 553. The Declaratory Ruling was not a rulemaking; it was an adjudication governed by Section 554 of the APA. See 5 U.S.C. § 554(e) ( [An] agency . . . may issue a declaratory order to terminate a controversy or remove uncertainty. ); accord 47 C.F.R. § 1.2. Were it otherwise, the functional test itself could not have been adopted by adjudication as the petitioners do not question it properly was. The Commission was thus not obliged to adhere to the APA s rulemaking procedures. See, e.g., MacLean v. Dep t of Homeland Sec., 543 F.3d 1145, 1151 (9th Cir. 2008) ( A notice and comment period is generally required for agency rulemaking, but not for adjudications. ). The petitioners assertion (Br. 61) that the Commission  strongly implied that [it] was gathering information for a . . . rulemaking is not credible. In issuing its request for comment, the Commission expressly - 45 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 54 of 104 stated that its contemplated action  would be adjudicatory in nature, unlike the proposals in the [accompanying] Notice of Proposed Rulemaking. 2017 Notice and Request for Comment ¶ 115 n.167 [SER 323]. Even if the petitioners could show that the Declaratory Ruling was not adjudicatory, their notice argument would fail because the APA s notice-and-comment requirements do not apply to  interpretive rules. See 5 U.S.C. § 553(b)(A), 553(d)(2). Unlike substantive rules, which create law, interpretive rules merely state an agency s understanding of existing law. E.g., Chief Probation Officers v. Shalala, 118 F.3d 1327, 1333 (9th Cir. 1997); see id. at 1336 (contrasting substantive rules). The Commission s interpretation of  service in the Declaratory Ruling could at most be characterized as an interpretive rule, because it clarifies, rather than creates, law. That is so notwithstanding that the Commission previously espoused a different reading of the statute. See Perez v. Mortgage Bankers Assoc., 135 S. Ct. 1199, 1206 (2015) ( Because an agency is not required to use notice-and-comment to issue an initial interpretive rule, it is also not required to use those procedures when it - 46 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 55 of 104 amends or repeals that interpretive rule. ); Chief Probation Officers, 118 F.3d at 1337. In any event, the petitioners have not shown that they lacked notice, let alone suffered any prejudice. See 5 U.S.C. § 706 (reviewing court must take  due account . . . of the rule of prejudicial error ); Del Norte Cnty. v. United States, 732 F.2d 1462, 1467 (9th Cir. 1984) ( [I]nsubstantial errors in an administrative proceeding that prejudice no one do not require administrative decisions to be set aside. (citing additional supporting authority)). Although the Commission did not conduct a rulemaking, it nonetheless invited, and received, public input on the proper interpretation of Section 214(a). The petitioners filed two sets of comments, and made multiple ex parte presentations, addressing all of the arguments on which they rely here. See 11/06/2017 Public Knowledge Letter re Ex Parte Meeting 2 [SER 140]; 09/08/2017 Public Knowledge Letter re Ex Parte Meeting 1 3 [SER 145 47]; 07/17/2017 Reply Comments of Public Knowledge 7 10 [SER 181 84] (Public Knowledge Reply); Public Knowledge Comments 8 13 [SER 254 59]. There is thus no basis to conclude that the petitioners were unable to make their views known to the agency or suffered any prejudice from the - 47 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 56 of 104 agency s procedure. Moreover, as the petitioners acknowledge, other parties filed comments as well. Br. 61. 2. The FCC Acted to Resolve Uncertainty. There is likewise no merit to the petitioners claim that the Commission  violated its own procedural rules by proceeding with a Declaratory Ruling rather than a notice-and-comment rulemaking. Br. 61. As the Commission explained, multiple commenters advised the Commission that its prior interpretation of Section 214(a) had  generated substantial uncertainty as to when carriers must file discontinuance applications. Declaratory Ruling ¶ 155 [SER 60]; see, e.g., 06/15/2017 Comments of AT&T Services, Inc. 67 68 [SER 208 09] (AT&T Comments). Resolving that uncertainty was a routine use of the Commission s declaratory ruling procedure. 47 C.F.R. § 1.2. III. THE FCC REASONABLY REPEALED THE DE FACTO RETIREMENT RULE. A. The FCC Reasonably Determined That the Rule Provided No Meaningful Benefit. When adopting the concept of de facto retirement in 2015, the Commission expressly recognized the distinction between the FCC s network change disclosure rules and the statutorily prescribed process governing a carrier s discontinuance of service. See 2015 Order, 30 FCC - 48 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 57 of 104 Rcd at 9382 83, 9423 ¶¶ 14, 92. As the Commission explained, when a carrier changed network facilities, the agency s rules  merely require[d] notice. Id. at 9423 ¶ 92. Only when a planned change stood to  result in a discontinuance, reduction, or impairment of service was the carrier required to obtain pre-approval. Id. at 9382 ¶ 14. And that obligation, the Commission emphasized, was  fundamentally distinct from the copper retirement notice regime. Id. at 9423 ¶ 92. It flowed from, and was governed by, Section 214(a) of the Communications Act. 47 U.S.C. § 214(a); see 2015 Order, 30 FCC Rcd at 9382 83 ¶ 14. The distinction between the notice-based network change and approval-based discontinuance regimes was fundamental to the Commission s 2017 decision to abandon the de facto retirement rule. That rule, the record showed, had created considerable uncertainty for incumbent carriers; they complained that it constrained them to provide notice of copper deterioration on an  unmanageable[,] loop-by-loop basis. Verizon Comments 20 [SER 272]; see Order ¶ 37 & n.129 [SER 16]. Yet  consumers receive[d] no notice benefit from [the de facto retirement] concept, the Commission explained, because the rule as drafted did not require notice of network changes on a prospective basis. Id. ¶ 37 - 49 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 58 of 104 [SER 17]. The requirement to provide notice was triggered only once a carrier s  failure to maintain copper [facilities] caused the facilities to deteriorate to a degree  functional[ly] equivalent to  remov[ing] or disabling them. 2015 Order, 30 FCC Rcd at 9501 (Appendix A); see Order ¶ 37 [SER 17]. The Commission saw  no practical way to make carriers give notice of that circumstance ahead of time. Id. And the Commission believed that after-the-fact  notice that copper deterioration is the reason for . . . service quality problems provides no benefit to the customers. Id. ¶ 38 [SER 17]. Furthermore, customers had  other avenues for relief if a carrier should  willfully or otherwise allow its network to degrade. Order ¶ 39 [SER 17 18].  Loss of service considerations, the Commission observed, are  properly addressed in the context of the discontinuance approval process established by [S]ection 214(a). Id. ¶ 37 [SER 17]. And in many states including California carriers also  remain subject to state-level service quality requirements. Id. ¶ 39 & n.141 [SER 18]; see CALTEL Comments 8 [SER 216]. - 50 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 59 of 104 B. The Petitioners Arguments Concerning De Facto Retirement Are Unavailing. The petitioners repeatedly state that the de facto retirement rule required incumbent carriers that neglected their copper facilities either to  file [for] Section 214(a) discontinuance or repair [their] existing networks. Br. 66; see id. at 68 69. They are mistaken. As explained above, even during the period when the Commission s network change disclosure rules included the concept of de facto retirement, the rules merely required carriers to give notice not seek the Commission s approval. A carrier s duty to seek approval for deteriorating copper facilities that would impair service arose not from the de facto retirement rule but from Section 214(a) of the Act. 47 U.S.C. § 214(a). That statutory obligation remains in force. Likewise, even when the Commission defined copper retirement to include de facto retirement, incumbent carriers were  free to resolve [service] issues by migrating [a] customer to fiber, as long as the nature of the service being provided to the customer remain[ed] the same. Order ¶ 38 [SER 17]. In other words, no approval under Section 214(a), or any other form of Commission approval, has ever been required for a carrier to switch a customer from copper to fiber. The petitioners are thus wrong - 51 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 60 of 104 that the de facto retirement rule constrained carriers to choose between filing an application for discontinuance or repairing their copper facilities. Br. 66. The petitioners suggest that repealing the de facto retirement rule required the FCC to explain how  customers may still seek relief under Section 214(a) going forward. Br. 69. But eliminating the rule had no effect on the statutory discontinuance process, including a carrier s obligation to file a Section 214(a) discontinuance application if its service is impaired because it fails to maintain copper facilities. As has always been true, customers may file complaints with the Commission if they believe a carrier has discontinued service without authorization. See 47 U.S.C. § 208. And when a carrier applies to the Commission for authority to discontinue service, customers may file objections. E.g., 47 C.F.R. § 63.71(a)(5). Unavailing, too, is the petitioners claim that, in repealing the de facto retirement rule, the Commission improperly ignored material evidence. Br. 67. The petitioners contend that Public Knowledge submitted evidence that  carriers [have] continued to engage in de facto retirement since the 2015 Order. Id. But the pleading they cite presents - 52 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 61 of 104 no such evidence. See 11/09/2017 Written Ex Parte of Public Knowledge 1 20 [SER 119 38]. The plaintiffs likewise misconstrue the significance of a footnote from comments of the Communications Workers of America. Br. 67. The petitioners claim that the footnote  provided evidence that . . . filing . . . a de facto retirement complaint with the Commission . . . facilitated securing a settlement with Verizon to repair certain dangerously degraded copper lines. Br. 67. But the complaint in question was filed before the New York Public Service Commission to enforce state-level quality of service requirements. See 06/15/2017 Comments of Communications Workers of America 16 & n.38 [SER 229 30]. It was not a complaint to the FCC concerning de facto retirement. Finally, the petitioners are wrong in claiming that the Commission departed without adequate explanation from its prior view that carriers have an incentive to  stop serving customers when  the cost of repair for copper facilities  exceeds the [carriers ] anticipated revenue from serving those customers. Br. 68. Yet again, that argument improperly conflates the notice-based network change disclosure rules with Section 214(a) discontinuance review. - 53 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 62 of 104 A carrier s incentive to stop providing service is not germane to whether the Commission reasonably eliminated the de facto retirement rule. Irrespective of how the Commission defines  copper retirement, a carrier seeking to discontinue, reduce, or impair its service (rather than replace its legacy network with alternative facilities) must apply to the Commission for approval. E.g., Order ¶ 39 [SER 17 18]. Thus, well before the advent of the de facto retirement rule, when Verizon initially sought to restore lost service to customers on Fire Island and the New Jersey Barrier Islands by offering the wireless VoiceLink service instead of legacy voice service over wireline facilities (which would take longer to build), it applied for the Commission s approval under Section 214(a). Verizon s later decision to withdraw the Fire Island portion of that application when it decided to deploy modernized wireline facilities to Fire Island (Br. 27) does not demonstrate a need for the de facto retirement rule; it shows that carriers abide by the Section 214(a) discontinuance process when the transition from copper to modern networks disrupts legacy services. - 54 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 63 of 104 IV. THE COURT LACKS JURISDICTION TO REACH THE PETITIONERS UNTIMELY CLAIMS CONCERNING THE FCC S COPPER RETIREMENT DIRECT NOTICE RULES, WHICH IN ANY EVENT FAIL ON THE MERITS. The Court should not address the petitioners challenges to the repeal of the retail customer and state government direct notice rules, because the petitioners failed to raise those claims until long past the statutory cut-off for review petitions.7 In any event, the claims are unavailing. A. Jurisdiction Is Barred by Federal Rule of Appellate Procedure 15 and 28 U.S.C. § 2344.  Review of an agency order is commenced by filing, within the time prescribed by law, a petition for review with the clerk of a court of appeals authorized to review the agency order. Fed. R. App. P. 15(a)(1). For FCC orders reviewable under the Hobbs Act, the time prescribed by law to file a petition for review is 60 days from an order s  entry. 28 U.S.C. § 2344. Moreover, that  time limitation is jurisdictional and cannot be modified by judicial action. E.g., Cal. Ass n of the Physically Handicapped, Inc. v. FCC, 833 F.2d 1333, 1334 (9th Cir. 1987). 7 The Court denied the FCC s earlier motion to strike on this theory (Dkt. Entry 24)  without prejudice to [the agency s] renewing the arguments here. Order Denying Mot. to Strike (Dkt. Entry 28). - 55 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 64 of 104 A petition for review must contain the information set forth in Rule 15(a)(2) of the Federal Rules of Appellate Procedure. Among other things, the petition must  name each party seeking review, Fed. R. App. P. 15(a)(2)(A), and  specify the order or part thereof to be reviewed, Fed. R. App. P. 15(a)(2)(C) (emphasis added). In cases challenging FCC orders reviewable under the Hobbs Act, the jurisdictional nature of 28 U.S.C. § 2344 means that the requirements of Rule 15(a)(2) must be satisfied within 60 days. The petitioners filed their initial petition for review on December 8, 2017. Pet. 1. In it, they chose as Rule 15(a)(1)(C) allows to limit their challenge to the Declaratory Ruling and specific portions of the Order, stating:  The petitioners specifically request the court to review paragraphs 37 to 39 of the . . . Order and paragraphs 128 to 155 of the Declaratory Ruling [i.e., the Declaratory Ruling in its entirety]. Pet. 2. In their mediation statement, filed on December 15, 2017, the petitioners again said that this case concerned those  specific parts of the Commission s decision. Mediation Questionnaire 1 (Dkt. Entry 8). The petitioners did not file their supplemental petition for review until April 24, 2018 months past the 60-day cut-off for review petitions - 56 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 65 of 104 challenging the Order. See Supp. Pet. 1. There, for the first time, the petitioners designated as subjects for review  previously omitted . . . paragraphs of the [Order] (paragraphs 40-66). Supp. Pet. 1. Until that point, the FCC and members of the public had no indication that the petitioners would challenge the Commission s decision to repeal the retail customer and state government direct notice rules. Having twice indicated that this case concerned only the Declaratory Ruling and those limited portions of the Order repealing the de facto retirement rule, the petitioners could not properly wait until months later well outside the statutory filing window to challenge the Commission s repeal of the copper retirement direct notice rules. Reaching those untimely claims would vitiate the jurisdictional limitation that Congress has prescribed. See, e.g., Goos v. ICC, 911 F.2d 1283, 1288 89 (8th Cir. 1990) (holding that parties were jurisdictionally barred from challenging an agency order when their names were not individually included in a timely filed petition for review but were included in a motion to amend that petition filed beyond the Hobbs Act s 60-day cut-off for review petitions). - 57 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 66 of 104 Although the original and supplemental petitions concern the same Order, this Court has squarely rejected the theory that,  as a jurisdictional matter, a petition for review of one aspect of [an agency] order opens the entire order up for review. Wash. Utils. and Transp. Comm n v. FERC, 26 F.3d 935, 941 (9th Cir. 1994) (emphasis omitted). As the Court explained, that theory contravenes the  unambiguous dictates of [Federal Rule of Appellate Procedure] 15. Id. at 942. Finally, given the jurisdictional nature of the Hobbs Act s 60-day filing window, the FCC need not show prejudice from the untimeliness of the petitioners claims. We nonetheless note that, had the full scope of the intended claims been clear sooner, other parties might have filed protective petitions for review or intervened in this case on the FCC s behalf. Cf. Washington Utilities, 26 F.3d at 941 ( A party that was satisfied with an order as issued might easily become dissatisfied should some other party succeed, on review, in having some part of the order modified. ). B. The FCC Reasonably Repealed the Retail Customer Direct Notice Rule. The petitioners arguments concerning the retail customer direct notice rule also fail on the merits. - 58 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 67 of 104 1. When first requiring direct notice of copper retirement to retail customers in 2015, the Commission predicted that doing so would prevent consumer confusion regarding the implications of carriers transition to fiber facilities,  allow[ing] for a smoother transition. 2015 Order, 30 FCC Rcd at 9396 ¶ 39. In 2017, the Commission reasonably determined that the predicted benefits of mandating direct notice to retail consumers had  not come to pass. Order ¶ 45 [SER 20]. Rather, the requirement of direct notice had  caused confusion and delay, without corresponding benefit to customers. Id. These Commission findings of confusion and delay were well supported in the record. Multiple commenters pointed out, for example, that the required direct notice was  confusing to retail customers because it required carriers to inform customers of the date  on which their provider [was] authorized to retire the copper, rather than the date on which the carrier would migrate that individual customer to fiber which is the date that customers really care about. 07/17/2017 Reply Comments of CenturyLink 20 [SER 157] (CenturyLink Reply); accord Verizon Comments 22 [SER 274]; see Order ¶ 45 & n.160 [SER 20] (citing these and other supporting record materials). Other commenters advised - 59 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 68 of 104 that  the requirements for notifying retail customers of planned copper retirement . . .  drag[] out the copper retirement process, rather than promote fiber deployment. 06/15/2017 Comments of the Fiber Broadband Association 11 [SER 241] (second alteration in original). AT&T, for example, explained that the retail customer direct notice rule obligated it to  customize each notice to address each type of service (or combination of services) available to each customer, including contact information for the different, discrete business units at AT&T that would provide customer service for each type of service. AT&T Comments 32 [SER 204]. The Commission also cited numerous reasons why it believed that the retail customer direct notice rule did not provide benefits that might outweigh the confusion and delay it engendered. The Commission found that, given the competitive pressure that incumbent carriers now face from  competitive [local telephone companies], cable providers, and wireless providers, incumbent carriers  do not require mandatory and prescriptive Commission-ordered notice to educate and inform their customers of network transitions from copper to fiber. Order ¶ 45 [SER 20].  Rather, these communications must necessarily occur for the - 60 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 69 of 104 incumbent [carrier] to continue providing the services to which its customers subscribe. Id.; see id. ¶¶ 48 49 [SER 22 23]. The Commission s determination on that point was not hypothetical. In comments to the Commission, the  three largest incumbent [carriers] that together serve approximately 74% of households purchasing legacy voice service from incumbent [carriers] expressly  acknowledge[d] and embrace[d] their role in educating consumers of the effect of impending changes in the network over which their service is provided, not just of the benefits of advanced, IP-based services. Order ¶ 50 [SER 23] (footnote omitted) (citing comments from Verizon, CenturyLink, and AT&T, as well as 2016 and 2017 financial statements of those companies that established their market share). CenturyLink, for example, explained that incumbent carriers have  strong incentives to notify affected retail customers of a transition from copper to fiber in view of intermodal competition for voice customers and the high revenue potential inherent in serving customers over fiber (because of the greater range of next-generation services that fiber enables carriers to offer). 06/15/2017 Comments of CenturyLink 31 [SER 222]; see id. at 31 32 [SER 222 23]. - 61 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 70 of 104 Furthermore, the Commission had evidence that third-party equipment will in many cases continue to function as well with fiber as with copper. Order ¶ 46 [SER 20 21]. For example, Verizon said that it  continues to offer customers over fiber the same [time-division multiplexed] voice service that they received over copper. 09/11/17 Letter from Verizon re Ex Parte Meeting 3 [SER 144]; accord Verizon Comments 18 n.54 [SER 270]. Likewise, USTelecom stated: Many [customers] can continue to receive the same [time- division multiplexed] services over fiber facilities at the same rates, terms, and conditions as over copper. Faxing, alarm monitoring services, and the like will continue to be available to consumers post-transition. 911 communications continue to work in the same manner. 07/17/2017 Reply Comments of the United States Telecom Association 17 [SER 189] (footnote omitted). In view of such evidence, the Commission reasonably found that concerns about whether third-party equipment would continue to function over fiber did not warrant continuing to mandate that carriers provide notice of copper retirements directly to individual retail customers. Order ¶ 46 [SER 20 21]. 2. The petitioners argue that the direct notice rule was the  sole due process protection for  ordinary consumers to prevent  service changes . . . before the consumer has an adequate opportunity to react. - 62 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 71 of 104 Br. 70. But as the Commission and numerous commenters explained, that argument improperly  conflate[s] copper retirement and service discontinuance. Order ¶ 46 [SER 21].  [I]f an incumbent [carrier s] copper retirement will result in a discontinuance of service, the carrier must still go through the process of obtaining Commission authorization, which includes an FCC-issued public notice of the proposed discontinuance and an opportunity for customers to  object . . . and raise concerns regarding the adequacy of available alternative services. Id. ¶ 43 [SER 19]; see 47 C.F.R. § 63.71(a)(5). And as the Commission further explained, carriers and state public utilities commissions often engage in voluntary outreach efforts that are more effective than the FCC-mandated notice. See Order ¶ 50 [SER 23]. 3. Also unavailing is the petitioners claim that, in repealing the retail customer direct notice rule, the Commission silently  abandon[ed] the goal of consumer protection and  replaced it with  a core value of broadband deployment. Br. 72. In the 2017 Order, as before, the Commission advanced both policy objectives: promoting a transition to next-generation technologies while protecting customers who still receive service over copper during the transition. See, e.g., Order ¶ 41 [SER 18 - 63 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 72 of 104 19] (indicating a desire to promote incumbent carriers  transition[] to next-generation networks while simultaneously  addressing parties needs for adequate information and consumer protection ); 2015 Order, 30 FCC Rcd at 9373 ¶ 1 (pledging both to promote  consumer protection policies and to  ensure that the deployment of innovative and improved communications services can continue without delay ). In repealing the retail customer direct notice rule, the Commission did not  abandon the goal of consumer protection; it merely reached a different conclusion from the previous Commission regarding how best to balance, and advance, the agency s dual policy objectives. Compare Order ¶ 41 [SER 18 19], with 2015 Order, 30 FCC Rcd at 9398 99 ¶ 43. 4. Contrary to what the petitioners claim (Br. 74), the Commission has not  set aside findings of previous proceedings without  articulat[ing] its rationale in choosing a different path. The Commission expressly acknowledged its former prediction that requiring direct notice to retail customers would reduce consumer confusion and promote a smooth transition to fiber networks. See Order ¶ 45 & n.159 [SER 20]. But the Commission found that the record in 2017 did not substantiate those predictions. Id. ¶ 45 [SER 20]. Accordingly, the - 64 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 73 of 104 Commission concluded, the rule s burden on carriers is no longer warranted. See supra pp. 59 62. Notably, the petitioners do not identify any specific finding of fact that they contend the Commission reversed without adequate explanation. See Br. 74 75. Nor do they deny that the Commission had new evidence in 2017.8 The record included, for example, carrier comments concerning their  real-world experiences under the 2015 notice regime. Verizon Comments 18 [SER 270]. Based in part on those comments, the Commission explained why it believed the 2015 rule confused customers and delayed network transitions. See supra pp. 59 60. The APA requires nothing more. Indeed, the Commission was free to revise its earlier findings even without new evidence, so long as it reasonably explained why it disagreed with those findings. Cf. Organized Village of Kake, 795 F.3d at 968 ( The Department was required to provide a  reasoned explanation . . . for disregarding the  facts and circumstances that underlay its previous 8 The petitioners appear to contend instead that the Commission was obligated to grant the retail customer direct notice rule a longer trial period, see Br. 72 73, or to gather additional evidence concerning its efficacy by means of a  task force, . . . trials, [or] workshops, Br. 74. The petitioners cite no authority to support those contentions. - 65 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 74 of 104 decision. (quoting Fox Television Stations, 556 U.S. at 515)). If the 2017 Order contains findings that conflict with the Commission s earlier findings, the Commission gave well-reasoned and adequately explained grounds for changing its stance. C. The FCC Reasonably Repealed the State Government Direct Notice Rule. The petitioners challenge to the Commission s repeal of its state government direct notice rule fails on the jurisdictional grounds already discussed: not only is it untimely, but the petitioners have not explained why they have standing to challenge the repeal of a rule that provided for notice to state governors and public utilities commissions, not private parties. See supra pp. 31, 55 58. But should the Court address the merits of the petitioners challenge, it should hold that the Commission s decision was reasonable. Order ¶¶ 56 57 [SER 25]. 1. The Commission adopted the state government direct notice rule in 2015  to synchronize the notice requirements for copper retirements with those for [S]ection 214 discontinuances. Order ¶ 56 [SER 25]; see 2015 Order, 30 FCC Rcd at 9412 ¶ 70. But discontinuances, the Commission reasoned,  present a very different set of concerns because of the potential for loss of service and/or functionality, thereby justifying - 66 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 75 of 104 greater notice than mere changes to the facilities over which an incumbent [carrier] provides its services. Order ¶ 56 [SER 25]. Given the lesser interests at stake for network change notices, as compared to notices of discontinuance, the Commission decided that the state government direct notice rule was not worth the burden it imposed on carriers. See Order ¶¶ 56, 57 [SER 25]. That was particularly so, the Commission concluded, because states  that have regulatory authority over copper and wish to mandate notice [of copper retirement] are able to do so without the need for an across-the-board Commission rule. Id. ¶ 57 [SER 25]. Moreover, the Commission explained, there is  no reason to give notice to state entities that either lack, or elect not to exercise, regulatory authority over copper networks or network changes. Id. 2. The petitioners contend that  [t]he FCC failed to address . . . explicit arguments in the record that the reason for states lack of regulation was the consistent reassurance from both the FCC and the carriers themselves that the FCC would continue to ensure adequate notice. Br. 76. But the record materials that the petitioners cite in support of that claim make no such argument let alone in a manner sufficiently  explicit that the Commission could be expected to have - 67 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 76 of 104 addressed it. See, e.g., New England Pub. Commc ns Council, Inc. v. FCC, 334 F.3d 69, 79 (D.C. Cir. 2003) ( As we have repeatedly held, the Commission need not sift pleadings and documents to identify arguments that are not stated with clarity by a petitioner. (internal quotation marks and alterations omitted)). As such, this argument is waived. See id. (citing 47 U.S.C. § 405(a)(2)). The petitioners cite a portion of reply comments to the Commission in which Public Knowledge argued that  more and more states [are] passing legislation that allows incumbents to discontinue service, and thus that  the Commission s copper retirement rules [have] become a last line of defense for consumers. Public Knowledge Reply 7 [SER 181]. Nowhere in those comments did Public Knowledge argue or show that, in passing such legislation, states relied on the FCC s state government direct notice rule. See id. Likewise, the comments of the Illinois attorney general to which the petitioners allude (Br. 75) include no argument that Illinois relied on that rule. See 07/17/2017 Reply Comments of the People of the State of Illinois by Attorney General Lisa Madigan 6 [SER 175]. To - 68 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 77 of 104 the contrary, the Illinois attorney general explained that Illinois has put in place its own state-level notice rules. See id.9 3. Finally, the petitioners contend that the FCC s purpose in adopting the state government direct notice rule in 2015 was to promote  consumer education and outreach efforts, Br. 76, and that the Commission failed to explain in the Order why that consideration no longer applies, id. at 77. But the Commission did explain its view on that issue, observing that states are free to institute their own notice requirements if they desire to do so. See Order ¶ 57 & n.207 [SER 25]. Moreover, insofar as the Commission has now eliminated the retail customer direct notice rule, the agency s former determination that providing direct notice to states would help them  field the calls that will come when consumers receive copper retirement notices no longer pertains. 2015 Order, 30 FCC Rcd at 9412 ¶ 70. 9 From a related news article on which the petitioners rely (Br. 76 & n.205), it appears that Illinois has elected not to bar or require state-level pre-approval for copper retirements on the understanding that incumbent carriers will not be able to discontinue, reduce, or impair service without applying for approval from the FCC. That obligation remains in place, and a state s reliance on it has no bearing on the repeal of the state government direct notice rule. - 69 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 78 of 104 V. THE FCC DID NOT PREJUDGE THE OUTCOME OF ITS PROCEEDING. Finally, there is no merit to the claim that the FCC unlawfully prejudged the issues resolved in the Combined Order. Br. 78 79; Amicus Br. 4 11; see Br. 56 58. There is a strong presumption of regularity in administrative decisionmaking, including against charges of prejudgment. See, e.g., Nuclear Info. & Res. Serv. v. Nuclear Regulatory Comm n, 509 F.3d 562, 571 (D.C. Cir. 2007) ( courts must tread lightly in this arena); accord 2 Charles H. Koch, Jr. & Richard Murphy, Administrative Law and Practice § 6:10 (3d ed. 2010). As the Supreme Court has stated, administrative officials  charged by Congress with adjudicatory functions are  assumed to be [individuals] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances. United States v. Morgan, 313 U.S. 409, 421 (1941). The presumption of regularity is particularly strong for rulemakings, in which context the D.C. Circuit has required  a clear and convincing showing that an allegedly disqualified decisionmaker had  an unalterably closed mind on  critical matters. Ass n of Nat l Advertisers v. FTC, 627 F.2d 1151, 1170 (D.C. Cir. 1979). - 70 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 79 of 104 The petitioners and their supporting amicus curiae cite separate statements of Chairman Pai and Commissioner O Rielly showing that they disagreed with earlier rulings. But  [a] party cannot overcome [the] presumption of administrative regularity  with a mere showing that an official has taken a public position, or has expressed strong views, or holds an underlying philosophy with respect to an issue in dispute  not even when the official  speak[s] vigorously or  colorfully to  spark debate. Nuclear Information and Resource Service, 509 F.3d at 571 (internal quotation marks omitted). And  preconceptions regarding the law no more invalidate agency action than they do the action of a court. City of Charlottesville v. FERC, 774 F.2d 1205, 1212 (D.C. Cir. 1985) (citing FTC v. Cement Inst., 333 U.S. 683, 700 03 (1948)). Nothing suggests that Chairman Pai or Commissioner O Rielly approached this proceeding with anything other than background policy preferences and views of the law as is expected of administrative decisionmakers. See 2 Koch & Murphy § 6:10. Contrary to the petitioners claim, moreover, it is not true that the Commission in 2017  generally ignore[d] the extensive findings made in the [2014 and 2015 Orders]. Br. 57; see Amicus Br. 6. If the petitioners - 71 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 80 of 104 objection is that the Commission initiated a new proceeding, rather than reopening the same record from its earlier technology transitions orders, that was a routine exercise of the agency s broad discretion to order its proceedings. See 47 U.S.C. § 154(j). Commenting parties were free to (and did) present in the new docket whatever arguments and evidence they considered significant from the old one. To the extent the petitioners complaint is that the Commission did not discuss what they characterize as  the disastrous implementation of [Verizon s] Voice[L]ink on Fire Island (Br. 57), we have already explained that there was no reason for the Commission to do so. See supra pp. 42 44. CONCLUSION The Court should dismiss the petition for review for lack of jurisdiction. Should the Court assert jurisdiction to decide any of the petitioners claims, the petition for review should be denied as to those claims. - 72 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 81 of 104 Dated: November 30, 2018 Respectfully submitted, /s/ Sarah E. Citrin Makan Delrahim Assistant Attorney General Thomas M. Johnson, Jr. Andrew C. Finch General Counsel Principal Deputy Assistant David M. Gossett Attorney General Deputy General Counsel Michael F. Murray Richard K. Welch Deputy Assistant Attorney Deputy Associate General Counsel General Sarah E. Citrin Robert B. Nicholson Counsel Nickolai G. Levin FEDERAL COMMUNICATIONS Attorneys COMMISSION U.S. DEPARTMENT OF JUSTICE 445 12th Street SW ANTITRUST DIVISION Washington, DC 20554 950 Pennsylvania Ave. NW (202) 418-1740 Washington, DC 20530 fcclitigation@fcc.gov Counsel for Respondent Counsel for Respondent Federal United States of America Communications Commission - 73 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 82 of 104 STATEMENT OF RELATED CASES The order under review has not previously been the subject of a petition for review in this Court or any other court. The United States Telecom Association petitioned for agency reconsideration of the Commission s predecessor reforms in U.S. Telecom Ass n v. FCC, No. 15- 1414 (D.C. Cir.). In view of later developments, including the litigation here, that case is in abeyance. /s/ Sarah E. Citrin Sarah E. Citrin Counsel for Respondents - 74 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 83 of 104 CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT Certificate of Compliance With Type-Volume Limitation, Typeface Requirements and Type Style Requirements 1. This document complies with the type-volume limit of Fed. R. App. P. 32(a)(7)(B) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f) and Ninth Circuit Rule 32-1: & this document contains 13,832 words, or & this document uses a monospaced typeface and contains lines of text. 2. This document complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because: & this document has been prepared in a proportionally spaced typeface using Microsoft Word 2013 in 14-point Century Schoolbook, or & this document has been prepared in a monospaced spaced typeface using with . /s/ Sarah E. Citrin Sarah E. Citrin Counsel for Respondents - 75 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 84 of 104 CERTIFICATE OF FILING AND SERVICE I, Sarah E. Citrin, hereby certify that on November 30, 2018, I filed the foregoing Brief for the Respondents with the Clerk of Court for the United States Court of Appeals for the Ninth Circuit using the electronic CM/ECF system. I further certify that all participants in the case, listed below, are registered CM/ECF users and will be served electronically by the CM/ECF system. /s/ Sarah E. Citrin Sarah E. Citrin Counsel for Respondents Service List: Vinhcent Le Nickolai G. Levin THE GREENLINING INSTITUTE Robert Nicholson 2nd Floor U.S. DEPARTMENT OF JUSTICE 360 14th St. ANTITRUST DIVISION Oakland, CA 94612 950 Pennsylvania Ave. NW Counsel for Petitioner Greenlining Washington, DC 20530 Institute Counsel for Respondent United States of America - 76 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 85 of 104 [Service List Continued from Previous Page] Harold Feld Christine A. Mailloux PUBLIC KNOWLEDGE THE UTILITY REFORM NETWORK Suite 410 785 Market Street 1818 N. St. NW Suite 1400 Washington, DC 20036 San Francisco, CA 94104 Counsel for Petitioner Public Counsel for Petitioner The Utility Knowledge Reform Network David C. Bergmann Scott H. Angstreich 3293 Noreen Drive KELLOGG, HANSEN, TODD, FIGEL & Columbus, OH 43221 FREDERICK, P.L.L.C. 1615 M Street, NW Counsel for Petitioner National Washington, DC 20036 Association of State Utility Consumer Advocates Counsel for Intervenor USTelecom-The Broadband Association Jonathan C. Koltz CPUC-CALIFORNIA PUBLIC UTILITIES COMMISSION Legal Division 505 Van Ness Avenue San Francisco, CA 94102 Counsel for Amicus Curiae California Public Utilities Commission - 77 - Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 86 of 104 STATUTORY ADDENDUM Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 87 of 104 STATUTORY ADDENDUM CONTENTS Page 47 U.S.C. § 553................................................................................... Add. 2 47 U.S.C. § 554................................................................................... Add. 3 47 U.S.C. § 153................................................................................... Add. 6 47 U.S.C. § 154................................................................................... Add. 6 47 U.S.C. § 203................................................................................... Add. 7 47 U.S.C. § 208................................................................................... Add. 9 47 U.S.C. § 214................................................................................. Add. 10 47 U.S.C. § 1.2.................................................................................. Add. 12 47 U.S.C. § 63.60.............................................................................. Add. 12 47 U.S.C. § 63.71.............................................................................. Add. 13 47 U.S.C. § 63.505............................................................................ Add. 17 Add. 1 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 88 of 104 5 U.S.C. § 553 provides: § 553. Rule making (a) This section applies, according to the provisions thereof, except to the extent that there is involved (1) a military or foreign affairs function of the United States; or (2) a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts. (b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include (1) a statement of the time, place, and nature of public rule making proceedings; (2) reference to the legal authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved. Except when notice or hearing is required by statute, this subsection does not apply (A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or (B) when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest. Add. 2 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 89 of 104 (c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose. When rules are required by statute to be made on the record after opportunity for an agency hearing, sections 556 and 557 of this title apply instead of this subsection. (d) The required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause found and published with the rule. (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule. 5 U.S.C. § 554 provides: § 554. Adjudications (a) This section applies, according to the provisions thereof, in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, except to the extent that there is involved (1) a matter subject to a subsequent trial of the law and the facts de novo in a court; Add. 3 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 90 of 104 (2) the selection or tenure of an employee, except . . . administrative law judge appointed under section 3105 of this title; (3) proceedings in which decisions rest solely on inspections, tests, or elections; (4) the conduct of military or foreign affairs functions; (5) cases in which an agency is acting as an agent for a court; or (6) the certification of worker representatives. (b) Persons entitled to notice of an agency hearing shall be timely informed of (1) the time, place, and nature of the hearing; (2) the legal authority and jurisdiction under which the hearing is to be held; and (3) the matters of fact and law asserted. When private persons are the moving parties, other parties to the proceeding shall give prompt notice of issues controverted in fact or law; and in other instances agencies may by rule require responsive pleading. In fixing the time and place for hearings, due regard shall be had for the convenience and necessity of the parties or their representatives. (c) The agency shall give all interested parties opportunity for (1) the submission and consideration of facts, arguments, offers of settlement, or proposals of adjustment when time, the nature of the proceeding, and the public interest permit; and Add. 4 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 91 of 104 (2) to the extent that the parties are unable so to determine a controversy by consent, hearing and decision on notice and in accordance with sections 556 and 557 of this title. (d) The employee who presides at the reception of evidence pursuant to section 556 of this title shall make the recommended decision or initial decision required by section 557 of this title, unless he becomes unavailable to the agency. Except to the extent required for the disposition of ex parte matters as authorized by law, such an employee may not (1) consult a person or party on a fact in issue, unless on notice and opportunity for all parties to participate; or (2) be responsible to or subject to the supervision or direction of an employee or agent engaged in the performance of investigative or prosecuting functions for an agency. An employee or agent engaged in the performance of investigative or prosecuting functions for an agency in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 557 of this title, except as witness or counsel in public proceedings. This subsection does not apply (A) in determining applications for initial licenses; (B) to proceedings involving the validity or application of rates, facilities, or practices of public utilities or carriers; or (C) to the agency or a member or members of the body comprising the agency. (e) The agency, with like effect as in the case of other orders, and in its sound discretion, may issue a declaratory order to terminate a controversy or remove uncertainty. Add. 5 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 92 of 104 47 U.S.C. § 153(53) provides, in pertinent part: § 153. Definitions For the purposes of this chapter, unless the context otherwise requires ***** (53) Telecommunications service The term  telecommunications service means the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. ***** 47 U.S.C. § 154 provides, in pertinent part: § 154. Federal Communications Commission ***** (j) Conduct of proceedings; hearings The Commission may conduct its proceedings in such manner as will best conduce to the proper dispatch of business and to the ends of justice. No commissioner shall participate in any hearing or proceeding in which he has a pecuniary interest. Any party may appear before the Commission and be heard in person or by attorney. Every vote and official act of the Commission shall be entered of record, and its proceedings shall be public upon the request of any party interested. The Commission is authorized to withhold publication of records or proceedings containing secret information affecting the national defense. ***** Add. 6 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 93 of 104 47 U.S.C. § 203 provides: § 203. Schedules of charges (a) Filing; public display Every cmmon carrier, except connecting carriers, shall, within such reasonable time as the Commission shall designate, file with the Commission and print and keep open for public inspection schedules showing all charges for itself and its connecting carriers for interstate and foreign wire or radio communication between the different points on its own system, and between points on its own system and points on the system of its connecting carriers or points on the system of any other carrier subject to this chapter when a through route has been established, whether such charges are joint or separate, and showing the classifications, practices, and regulations affecting such charges. Such schedules shall contain such other information, and be printed in such form, and be posted and kept open for public inspection in such places, as the Commission may by regulation require, and each such schedule shall give notice of its effective date; and such common carrier shall furnish such schedules to each of its connecting carriers, and such connecting carriers shall keep such schedules open for inspection in such public places as the Commission may require. (b) Changes in schedule; discretion of Commission to modify requirements (1) No change shall be made in the charges, classifications, regulations, or practices which have been so filed and published except after one hundred and twenty days notice to the Commission and to the public, which shall be published in such form and contain such information as the Commission may by regulations prescribe. (2) The Commission may, in its discretion and for good cause shown, modify any requirement made by or under the authority of this section either in particular instances or by general order applicable to special circumstances or conditions except that the Add. 7 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 94 of 104 Commission may not require the notice period specified in paragraph (1) to be more than one hundred and twenty days. (c) Overcharges and rebates No carrier, unless otherwise provided by or under authority of this chapter, shall engage or participate in such communication unless schedules have been filed and published in accordance with the provisions of this chapter and with the regulations made thereunder; and no carrier shall (1) charge, demand, collect, or receive a greater or less or different compensation for such communication, or for any service in connection therewith, between the points named in any such schedule than the charges specified in the schedule then in effect, or (2) refund or remit by any means or device any portion of the charges so specified, or (3) extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges, except as specified in such schedule. (d) Rejection or refusal The Commission may reject and refuse to file any schedule entered for filing which does not provide and give lawful notice of its effective date. Any schedule so rejected by the Commission shall be void and its use shall be unlawful. (e) Penalty for violations In case of failure or refusal on the part of any carrier to comply with the provisions of this section or of any regulation or order made by the Commission thereunder, such carrier shall forfeit to the United States the sum of $6,000 for each such offense, and $300 for each and every day of the continuance of such offense. Add. 8 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 95 of 104 47 U.S.C. § 208 provides: § 208. Complaints to Commission; investigations; duration of investigation; appeal of order concluding investigation (a) Any person, any body politic, or municipal organization, or State commission, complaining of anything done or omitted to be done by any common carrier subject to this chapter, in contravention of the provisions thereof, may apply to said Commission by petition which shall briefly state the facts, whereupon a statement of the complaint thus made shall be forwarded by the Commission to such common carrier, who shall be called upon to satisfy the complaint or to answer the same in writing within a reasonable time to be specified by the Commission. If such common carrier within the time specified shall make reparation for the injury alleged to have been caused, the common carrier shall be relieved of liability to the complainant only for the particular violation of law thus complained of. If such carrier or carriers shall not satisfy the complaint within the time specified or there shall appear to be any reasonable ground for investigating said complaint, it shall be the duty of the Commission to investigate the matters complained of in such manner and by such means as it shall deem proper. No complaint shall at any time be dismissed because of the absence of direct damage to the complainant. (b)(1) Except as provided in paragraph (2), the Commission shall, with respect to any investigation under this section of the lawfulness of a charge, classification, regulation, or practice, issue an order concluding such investigation within 5 months after the date on which the complaint was filed. (2) The Commission shall, with respect to any such investigation initiated prior to November 3, 1988, issue an order concluding the investigation not later than 12 months after November 3, 1988. (3) Any order concluding an investigation under paragraph (1) or (2) shall be a final order and may be appealed under section 402(a) of this title. Add. 9 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 96 of 104 47 U.S.C. § 214 provides, in pertinent part: § 214. Extension of lines or discontinuance of service; certificate of public convenience and necessity (a) Exceptions; temporary or emergency service or discontinuance of service; changes in plant, operation or equipment No carrier shall undertake the construction of a new line or of an extension of any line, or shall acquire or operate any line, or extension thereof, or shall engage in transmission over or by means of such additional or extended line, unless and until there shall first have been obtained from the Commission a certificate that the present or future public convenience and necessity require or will require the construction, or operation, or construction and operation, of such additional or extended line: Provided, That no such certificate shall be required under this section for the construction, acquisition, or operation of (1) a line within a single State unless such line constitutes part of an interstate line, (2) local, branch, or terminal lines not exceeding ten miles in length, or (3) any line acquired under section 221 of this title: Provided further, That the Commission may, upon appropriate request being made, authorize temporary or emergency service, or the supplementing of existing facilities, without regard to the provisions of this section. No carrier shall discontinue, reduce, or impair service to a community, or part of a community, unless and until there shall first have been obtained from the Commission a certificate that neither the present nor future public convenience and necessity will be adversely affected thereby; except that the Commission may, upon appropriate request being made, authorize temporary or emergency discontinuance, reduction, or impairment of service, or partial discontinuance, reduction, or impairment of service, without regard to the provisions of this section. As used in this section the term  line means any channel of communication established by the use of appropriate equipment, other than a channel of communication established by the interconnection of two or more existing channels: Provided, however, That nothing in this section shall be construed to require a certificate or other authorization Add. 10 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 97 of 104 from the Commission for any installation, replacement, or other changes in plant, operation, or equipment, other than new construction, which will not impair the adequacy or quality of service provided. (b) Notification of Secretary of Defense, Secretary of State, and State Governor Upon receipt of an application for any such certificate, the Commission shall cause notice thereof to be given to, and shall cause a copy of such application to be filed with, the Secretary of Defense, the Secretary of State (with respect to such applications involving service to foreign points), and the Governor of each State in which such line is proposed to be constructed, extended, acquired, or operated, or in which such discontinuance, reduction, or impairment of service is proposed, with the right to those notified to be heard; and the Commission may require such published notice as it shall determine. (c) Approval or disapproval; injunction The Commission shall have power to issue such certificate as applied for, or to refuse to issue it, or to issue it for a portion or portions of a line, or extension thereof, or discontinuance, reduction, or impairment of service, described in the application, or for the partial exercise only of such right or privilege, and may attach to the issuance of the certificate such terms and conditions as in its judgment the public convenience and necessity may require. After issuance of such certificate, and not before, the carrier may, without securing approval other than such certificate, comply with the terms and conditions contained in or attached to the issuance of such certificate and proceed with the construction, extension, acquisition, operation, or discontinuance, reduction, or impairment of service covered thereby. Any construction, extension, acquisition, operation, discontinuance, reduction, or impairment of service contrary to the provisions of this section may be enjoined by any court of competent jurisdiction at the suit of the United States, the Add. 11 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 98 of 104 Commission, the State commission, any State affected, or any party in interest. ***** 47 C.F.R. § 1.2 provides: § 1.2 Declaratory rulings. (a) The Commission may, in accordance with section 5(d) of the Administrative Procedure Act, on motion or on its own motion issue a declaratory ruling terminating a controversy or removing uncertainty. (b) The bureau or office to which a petition for declaratory ruling has been submitted or assigned by the Commission should docket such a petition within an existing or current proceeding, depending on whether the issues raised within the petition substantially relate to an existing proceeding. The bureau or office then should seek comment on the petition via public notice. Unless otherwise specified by the bureau or office, the filing deadline for responsive pleadings to a docketed petition for declaratory ruling will be 30 days from the release date of the public notice, and the default filing deadline for any replies will be 15 days thereafter. 47 C.F.R. § 63.60 provides, in pertinent part: § 63.60 Definitions. For purposes of this part, the following definitions shall apply: ***** Add. 12 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 99 of 104 (i) The term  technology transition means any change in service that would result in the replacement of a wireline TDM based voice service with a service using a different technology or medium for transmission to the end user, whether Internet Protocol (IP), wireless, or another type; except that retirement of copper, as defined in § 51.332(a) of this chapter, that does not result in a discontinuance, reduction, or impairment of service requiring Commission authorization pursuant to this part shall not constitute a  technology transition for purposes of this part. 47 C.F.R. § 63.71 provides, in pertinent part: § 63.71 Procedures for discontinuance, reduction or impairment of service by domestic carriers. Any domestic carrier that seeks to discontinue, reduce or impair service shall be subject to the following procedures: (a) The carrier shall notify all affected customers of the planned discontinuance, reduction, or impairment of service and shall notify and submit a copy of its application to the public utility commission and to the Governor of the State in which the discontinuance, reduction, or impairment of service is proposed; to any federally- recognized Tribal Nations with authority over the Tribal lands in which the discontinuance, reduction, or impairment of service is proposed; and also to the Secretary of Defense, Attn. Special Assistant for Telecommunications, Pentagon, Washington, DC 20301. Notice shall be in writing to each affected customer unless the Commission authorizes in advance, for good cause shown, another form of notice. For purposes of this section, notice by email constitutes notice in writing. Notice shall include the following: (1) Name and address of carrier; (2) Date of planned service discontinuance, reduction or impairment; (3) Points of geographic areas of service affected; Add. 13 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 100 of 104 (4) Brief description of type of service affected; and (5) One of the following statements: (i) If the carrier is non-dominant with respect to the service being discontinued, reduced or impaired, the notice shall state: The FCC will normally authorize this proposed discontinuance of service (or reduction or impairment) unless it is shown that customers would be unable to receive service or a reasonable substitute from another carrier or that the public convenience and necessity is otherwise adversely affected. If you wish to object, you should file your comments as soon as possible, but no later than 15 days after the Commission releases public notice of the proposed discontinuance. You may file your comments electronically through the FCC's Electronic Comment Filing System using the docket number established in the Commission's public notice for this proceeding, or you may address them to the Federal Communications Commission, Wireline Competition Bureau, Competition Policy Division, Washington, DC 20554, and include in your comments a reference to the § 63.71 Application of (carrier's name). Comments should include specific information about the impact of this proposed discontinuance (or reduction or impairment) upon you or your company, including any inability to acquire reasonable substitute service. (ii) If the carrier is dominant with respect to the service being discontinued, reduced or impaired, the notice shall state: The FCC will normally authorize this proposed discontinuance of service (or reduction or impairment) unless it is shown that customers would be unable to receive service or a reasonable substitute from another carrier or that the public convenience and necessity is otherwise adversely affected. If you wish to object, you should file your comments as soon as Add. 14 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 101 of 104 possible, but no later than 30 days after the Commission releases public notice of the proposed discontinuance. You may file your comments electronically through the FCC's Electronic Comment Filing System using the docket number established in the Commission's public notice for this proceeding, or you may address them to the Federal Communications Commission, Wireline Competition Bureau, Competition Policy Division, Washington, DC 20554, and include in your comments a reference to the § 63.71 Application of (carrier's name). Comments should include specific information about the impact of this proposed discontinuance (or reduction or impairment) upon you or your company, including any inability to acquire reasonable substitute service. (6) For applications to discontinue, reduce, or impair an existing retail service as part of a technology transition, as defined in § 63.60(i), except for applications meeting the requirements of paragraph (f)(2)(ii) of this section, in order to be eligible for automatic grant under paragraph (f) of this section: (i) A statement that any service offered in place of the service being discontinued, reduced, or impaired may not provide line power; (ii) The information required by § 12.5(d)(1) of this chapter; (iii) A description of any security responsibilities the customer will have regarding the replacement service; and (iv) A list of the steps the customer may take to ensure safe use of the replacement service. ***** Add. 15 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 102 of 104 (f)(1) The application to discontinue, reduce, or impair service, if filed by a domestic, non-dominant carrier, or any carrier meeting the requirements of paragraph (f)(2)(ii) of this section, shall be automatically granted on the 31st day after its filing with the Commission without any Commission notification to the applicant unless the Commission has notified the applicant that the grant will not be automatically effective. The application to discontinue, reduce, or impair service, if filed by a domestic, dominant carrier, shall be automatically granted on the 60th day after its filing with the Commission without any Commission notification to the applicant unless the Commission has notified the applicant that the grant will not be automatically effective. For purposes of this section, an application will be deemed filed on the date the Commission releases public notice of the filing. (2) An application to discontinue, reduce, or impair an existing retail service as part of a technology transition, as defined in § 63.60(i), may be automatically granted only if: (i) The applicant provides affected customers with the notice required under paragraph (a)(6) of this section, and the application contains the showing or certification described in § 63.602(b); or (ii) The applicant: (A) Offers a stand-alone interconnected VoIP service, as defined in § 9.3 of this chapter, throughout the affected service area, and (B) At least one other alternative stand-alone facilities- based wireline or wireless voice service is available from another unaffiliated provider throughout the affected service area. (iii) For purposes of this paragraph (f)(2),  stand-alone means that a customer is not required to purchase a separate broadband service to access the voice service. Add. 16 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 103 of 104 ***** 47 C.F.R. § 63.505 provides: § 63.505 Contents of applications for any type of discontinuance, reduction, or impairment of telephone service not specifically provided for in this part. The application shall contain: (a) The name and address of each applicant; (b) The name, title, and post office address of the officer to whom correspondence concerning the application is to be addressed; (c) Nature of proposed discontinuance, reduction, or impairment; (d) Identification of community or part of community involved and date on which applicant desires to make proposed discontinuance, reduction or impairment effective, if for a temporary period only, indicate the approximate period for which authorization is desired; (e) Proposed new tariff listing, if any, and difference, if any, between present charges to the public and charges for the service to be substituted; (f) Description of the service area affected including population and general character of business of the community; (g) Name of any other carrier or carriers providing telephone service to the community; (h) Statement of the reasons for proposed discontinuance, reduction, or impairment; (i) Statement of the factors showing that neither present nor future public convenience and necessity would be adversely affected by the granting of the application; Add. 17 Case: 17-73283, 11/30/2018, ID: 11105143, DktEntry: 48, Page 104 of 104 (j) Description of any previous discontinuance, reduction, or impairment of service to the community affected by the application, which has been made by the applicant during the 12 months preceding filing of application, and statement of any present plans for future discontinuance, reduction, or impairment of service to such community; (k) Description of the service involved, including: (1) Existing telephone service by the applicant available to the community or part thereof involved; (2) Telephone service (available from applicant or others) which would remain in the community or part thereof involved in the event the application is granted; (l) A statement of the number of toll messages sent-paid and received-collect and the revenues from such traffic in connection with the service proposed to be discontinued, reduced, or impaired for each of the past 6 months; and, if the volume of such traffic handled in the area has decreased during recent years, the reasons therefor. Add. 18