No. 18-9563 (and other cases listed inside cover) IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT SPRINT CORPORATION, Petitioner, CITY OF NEW YORK, Intervenor - Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents, CITY OF BOWIE, MARYLAND, et al., Intervenors - Respondents. On Petition for Review of an Order of the Federal Communications Commission RESPONDENTS’ OPPOSITION TO MOTION TO TRANSFER Makan Delrahim Assistant Attorney General Robert B. Nicholson Adam D. Chandler Attorneys U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave. NW Washington, DC 20530 Thomas M. Johnson, Jr. General Counsel David M. Gossett Deputy General Counsel Jacob M. Lewis Associate General Counsel Scott M. Noveck Counsel FEDERAL COMMUNICATIONS COMMISSION 445 12th Street SW Washington, DC 20554 (202) 418-1740 [email protected]Appellate Case: 18-9563 Document: 010110099054 Date Filed: 12/17/2018 Page: 1
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No. 18-9563 (and other cases listed inside cover) IN THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
SPRINT CORPORATION, Petitioner,
CITY OF NEW YORK, Intervenor - Petitioner,
v. FEDERAL COMMUNICATIONS COMMISSION
and UNITED STATES OF AMERICA, Respondents,
CITY OF BOWIE, MARYLAND, et al., Intervenors - Respondents.
On Petition for Review of an Order of the Federal Communications Commission
RESPONDENTS’ OPPOSITION TO MOTION TO TRANSFER
Makan Delrahim Assistant Attorney General
Robert B. Nicholson Adam D. Chandler
Attorneys U.S. DEPARTMENT OF JUSTICE 950 Pennsylvania Ave. NW Washington, DC 20530
Thomas M. Johnson, Jr. General Counsel
David M. Gossett Deputy General Counsel
Jacob M. Lewis Associate General Counsel
Scott M. Noveck Counsel
FEDERAL COMMUNICATIONS COMMISSION
445 12th Street SW Washington, DC 20554 (202) 418-1740 [email protected]
Appellate Case: 18-9563 Document: 010110099054 Date Filed: 12/17/2018 Page: 1
[Caption Continued from Front Cover]
No. 18-9566
VERIZON COMMUNICATIONS, INC., Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA,
Respondents, THE CITY OF SAN JOSE, CALIFORNIA, et al.,
Intervenors - Respondents.
No. 18-9567
PUERTO RICO TELEPHONE COMPANY, INC., Petitioner,
CITY OF NEW YORK, Intervenor - Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA,
Respondents, THE CITY OF SAN JOSE, CALIFORNIA, et al.,
Intervenors - Respondents.
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[Caption Continued from Previous Page]
No. 18-9568
THE CITY OF SAN JOSE, CALIFORNIA, et al., Petitioners,
CITY OF NEW YORK, Intervenor - Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA,
Respondents, CTIA—THE WIRELESS ASSOCIATION, et al.,
Intervenors - Respondents.
No. 18-9571
CITY OF SEATTLE, WASHINGTON, et al., Petitioners,
CITY OF BAKERSFIELD, CALIFORNIA, et al., Intervenors - Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA,
Respondents.
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[Caption Continued from Previous Page]
No. 18-9572
CITY OF HUNTINGTON BEACH, Petitioner,
THE CITY OF SAN JOSE, CALIFORNIA, et al., Intervenors - Petitioners,
v.
FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA,
Respondents.
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The Federal Communications Commission (FCC or Commission)
and the United States of America respectfully oppose the San Jose
Petitioners’ motion to transfer these cases, which seek review of the
FCC’s Declaratory Ruling and Third Report & Order, Accelerating
Wireless Broadband Deployment by Removing Barriers to Infrastructure
Under the judicial lottery procedures of 28 U.S.C. § 2112(a), the
Judicial Panel on Multidistrict Litigation designated this Court as the
forum to decide any petitions for review of the September Order. San
Jose misreads federal law as requiring transfer to the Ninth Circuit after
the Judicial Panel randomly assigned all six qualifying petitions, filed in
four different circuits, to this Circuit. San Jose insists that these cases
must be transferred to the Ninth Circuit because it contends that the
September Order is “the same order” as the FCC’s August Order,1 which
has been challenged in the Ninth and Eleventh Circuits. That premise
1 Third Report & Order and Declaratory Ruling, Accelerating Wireline
Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd. 7705 (rel. Aug. 3, 2018) (August Order), pets. for review pending, City of Portland v. FCC, No. 18-72689 (9th Cir. filed Oct. 2, 2018), and Am. Elec. Power Servs. Corp. v. FCC, No. 18-14408 (11th Cir. filed Oct. 18, 2018).
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is incorrect: The August Order and the September Order are separate
standalone orders that were adopted by separate votes on separate
documents at separate times based on differing records (with over 700
additional record submissions for the September Order), and the two
orders each address separate and discrete subjects. San Jose also has
not shown that transfer is necessary for the convenience of the parties or
in the interest of justice. To the contrary, while San Jose and Seattle
filed petitions for review in the Ninth Circuit, municipalities located in
eleven of twelve regional circuits filed separate petitions in the Fourth,
Eighth, and D.C. Circuits, belying any argument that the Ninth Circuit
is uniquely situated to hear this case. In short, there is no reason why
this Court, which often hears cases involving the Communications Act,
should transfer the consolidated petitions. The motion to transfer should
be denied.
1. The September Order was released on September 27, 2018, and
a summary was published in the Federal Register on October 15, 2018.
See 83 Fed. Reg. 51867. Any party aggrieved by an FCC order may file a
petition for review in the federal courts of appeals. 28 U.S.C. §§ 2342(1),
2344; 47 U.S.C. § 402(a). Separate petitions for review of the September
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Order have been filed in the First, Second, Fourth, Eighth, Ninth, Tenth,
and D.C. Circuits. See Addendum A (listing petitions).
Under 28 U.S.C. § 2112(a), when petitions for review of an FCC
order are filed in multiple circuits and date-stamped copies are served on
the agency within ten days after issuance of the order, the Judicial Panel
on Multidistrict Litigation conducts a judicial lottery to designate one
court of appeals, from among those receiving qualifying petitions, in
which the record is to be filed. 28 U.S.C. § 2112(a)(1)–(3). All petitions
for review challenging that order must then be transferred to the court
in which the record is filed. Id. § 2112(a)(5).
Petitions qualifying for the judicial lottery were filed in the First,
Second, Ninth, and Tenth Circuits, and the Judicial Panel randomly
selected this Circuit as the court in which the record is to be filed. See
Consolidation Order, In re FCC, MCP No. 155 (J.P.M.L. Nov. 2, 2018).
Because the Tenth Circuit has been designated as the court in which the
record is to be filed, “[a]ll courts in which proceedings are instituted with
respect to the same order”—here, the September Order—“shall transfer
those proceedings to” this Court, and this Court thereafter can transfer
the petitions to another circuit only “[f]or the convenience of the parties
in the interest of justice.” 28 U.S.C. § 2112(a)(5).
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Given the Judicial Panel’s designation of this Court to review all
challenges to the September Order, the First, Second, and Ninth Circuits
transferred the petitions initially filed in those circuits to this Court.
Separately, other petitions for review of the September Order (that were
filed after or did not qualify for the judicial lottery) have been filed in the
Fourth,2 Eighth,3 Ninth,4 and D.C. Circuits.5 The FCC has filed
unopposed motions to transfer the petitions filed in the Fourth and D.C.
Circuits to this Court, as required by 28 U.S.C. § 2112(a)(5), and will soon
be moving to transfer the petitions recently filed in the Eighth and Ninth
Circuits (which were just received this morning). The Fourth Circuit has
already granted the FCC’s motion and ordered its case transferred to this
Circuit.
2 Montgomery County v. FCC, No. 18-2448 (4th Cir. filed Dec. 5, 2018)
(order granting transfer to Tenth Circuit issued December 13, 2018). 3 City of N. Little Rock v. FCC, No. 18-3678 (8th Cir. filed Dec. 14, 2018). 4 City & Cnty. of S.F. v. United States, No. 18-73376 (9th Cir. filed Dec.
14, 2018). 5 AT&T Servs., Inc. v. FCC, No. 18-1294 (D.C. Cir. filed Oct. 25, 2018);
Am. Pub. Power Ass’n v. FCC, No. 18-1305 (D.C. Cir. filed Nov. 15, 2018); City of Austin v. FCC, No. 18-1326 (D.C. Cir. filed Dec. 11, 2018); City of Eugene v. FCC, No. 18-1330 (D.C. Cir. filed Dec. 12, 2018).
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2. a. San Jose is incorrect that these cases should be transferred to
the Ninth Circuit because the September Order “can be treated as the
same order” (Mot. 5) as the August Order. Nothing in the orders supports
that claim. The two orders are separate, standalone documents. The
orders were considered and adopted at separate times—indeed, nearly
eight weeks apart—with the Commissioners casting separate (and
differing) votes on each order. Separate documents that are adopted at
separate times by separate action are presumed not to be the same order.
See, e.g., Far East Conference v. Fed. Mar. Comm’n, 337 F.2d 146, 148 n.1
(D.C. Cir. 1964) (maritime orders adopted at different times and directed
to different trade routes and commodities “cannot be considered the
‘same order’ within the meaning of” 28 U.S.C. § 2112(a) even if the orders
are substantially identical); Midwest Video Corp. v. United States, 362
F.2d 259, 260–61 (8th Cir. 1966) (per curiam).
The August Order and the September Order likewise do not
constitute “the same order” because they each address separate and
discrete subjects. The August Order addresses federal pole attachment
rules under 47 U.S.C. § 224, August Order ¶¶ 13–139, and state and local
moratoria on new wireline and wireless infrastructure through explicit
or de facto refusals to allow deployment, id. ¶¶ 140–168. The September
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Order, by contrast, does not relate to either state or local moratoria or
pole attachment rules, nor does it apply to wireline facilities. Rather, it
addresses three discrete subjects in the specific context of small wireless
facilities: fees and charges assessed by state and local governments,
September Order ¶¶ 43–80; aesthetic requirements and similar issues,
id. ¶¶ 81–91; and timelines for state and local authorizations, id. ¶¶ 103–
147. The fact that the September Order addresses different subjects from
the August Order further supports the conclusion that it is not “the same
order” under 28 U.S.C. § 2112(a)(5). See Mobil Oil Expl. Co. v. FERC,
transfer under 28 U.S.C. § 2112 where orders were “issued by the same
regulatory body under the same statutory authority” but addressed
different subjects); Midwest, 362 F.2d at 260–61 (denying motion to
transfer under 28 U.S.C. § 2112 because “[i]t is apparent that the second
order presents issues not raised by the first order” and that “jurisdiction
to review the first order does not carry with it jurisdiction to review the
second order”).
This case thus presents the opposite situation from American
Electric Power Services Corp. v. FCC, No. 18-14408 (11th Cir.) (AEP), in
which the FCC has moved to transfer a challenge to the August Order
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that was filed in the Eleventh Circuit to be consolidated with an earlier
challenge to the August Order that was filed in the Ninth Circuit.6 (The
Eleventh Circuit has not yet acted on that motion as of this filing.) In
that case, the petitions for review in the Ninth and Eleventh Circuits
challenged literally “the same order”: Each challenged aspects of a single
document adopted at a single time by a single vote of the Commission.
Here, by contrast, San Jose’s petition challenges a different order that
was adopted at a separate time in a separate vote on a separate
standalone document.
b. San Jose insists that these two separate orders must be treated
as “the same order” because they “are associated with the same dockets
[and] arise out of the same administrative record” (Mot. 5). But San Jose
then concedes in a footnote (Mot. 5 n.2) that the administrative records
are not in fact the same, because the record before the Commission when
it adopted the August Order necessarily closed upon that order’s adoption
in early August, whereas the record underlying the September Order did
6 The challenges to the August Order were not filed within the ten-day
window for a judicial lottery, so challenges to the August Order must be transferred to the circuit in which the first petition for review was filed. See 28 U.S.C. § 2112(a)(1), (5).
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not close until late September. See Bar MK Ranches v. Yuetter, 994 F.2d
735, 739 (10th Cir. 1993) (judicial review of an agency decision is “based
on the full administrative record that was before [the agency] at the time
of the decision”).
Contrary to San Jose’s representation that the two orders “arise out
of the same administrative record” (Mot. 5), in the nearly eight weeks
between the adoption of the August Order and the adoption of the
September Order, interested parties made more than 700 additional
submissions to the FCC. See Addendum B (list of additional record
submissions). And, indeed, the September Order discusses and relies on
numerous letters and other submissions that were submitted to the
agency after the release of the August Order, and thus are not part of the
record that will be filed with the court reviewing the August Order. See,
e.g., September Order nn.246–247, 253, 296.
Nor do these two separate orders become “the same order” simply
because they were cross-filed in the same agency dockets (Mot. 5)—an
omnibus docket for wireline infrastructure issues and an omnibus docket
for wireless infrastructure issues. While the two orders were cross-filed
in the same two agency dockets, the lead docket for each order is
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different, reflecting their different subjects.7 In any event, the FCC
routinely issues multiple separate orders under a given agency docket,
and those separate orders are often reviewed by separate circuits. Here,
for example, an earlier order in the same wireless infrastructure docket
as the September Order was adopted in March and is currently under
review by the D.C. Circuit. See Second Report & Order, Accelerating
Wireless Broadband Deployment by Removing Barriers to Infrastructure
Order), pets. for review pending, United Keetowah Band of Cherokee
Indians in Okla. v. FCC, Nos. 18-1129 et al. (D.C. Cir. filed May 9, 2018).
If San Jose were correct that separate orders associated with the same
agency docket must be treated as “the same order,” then it should be
seeking transfer to the D.C. Circuit, not the Ninth Circuit—but no party
takes that position.
7 The August Order addresses subjects that are of similar significance
to both traditional wireline and wireless service alike, so the lead docket listed on that order is the wireline docket (WC Docket No. 17-84). The September Order focuses principally on obstacles to wireless infrastructure deployment, so the lead docket listed on that order is the wireless docket (WT Docket No. 17-79). This is also why the two orders each contain sections labeled “Third Report and Order”: The August Order is the Third Report and Order in the wireline docket, whereas the September Order is the Third Report and Order in the wireless docket.
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San Jose’s claim that the August Order and the September Order
are the same order rests (Mot. 4–5) primarily on an unpublished and
inapposite D.C. Circuit order concerning challenges to two FCC orders
that were adopted on the same day as part of “a single agency
undertaking.” Bell Atl. Tel. Cos. v. FCC, 1996 WL 734326, at *1 (D.C.
Cir. Nov. 25, 1996). In deciding to treat those orders as “the same order,”
the D.C. Circuit addressed the unusual situation where two closely
related orders were considered and adopted together based on an
identical agency record. That unusual situation is not present here,
because the separate orders at issue were considered and adopted
separately at separate times and because the record relied on by the
September Order contains hundreds of submissions that are not part of
the record underlying the August Order.8
8 For similar reasons, San Jose errs (Mot. 5) in citing American Civil
Liberties Union v. FCC, 486 F.2d 411 (D.C. Cir. 1973) (ACLU). In that case, the court found that challenges to several orders that “represent the staggered implementation of a single, multi-faceted agency undertaking” in a “prolonged and complex proceeding” should be consolidated because separate review would “result[] in the action of the agency being subjected to fragmentary review by different courts.” Id. at 414. There is no prospect of “fragmentary review” here, because the two orders address different subjects, nor can the two separate wireless and wireline dockets be characterized as part of a single “prolonged and complex proceeding.”
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3. San Jose also briefly argues (Mot. 6–8) for a discretionary
transfer “for the convenience of the parties in the interests of justice”
under the second sentence of 28 U.S.C. § 2112(a)(5), but it has not shown
any compelling reason for transfer here. Notably, the array of petitioners
challenging the September Order do not even take a uniform view that
the Judicial Panel’s selection of this Court is inconvenient for the parties;
indeed, several petitioners oppose transfer.
“The only significant convenience factor which affects petitioners
seeking review of rulemaking on an agency record is the convenience of
counsel who will brief and argue the petitions,” because “[r]eview is
confined to the agency record” and the parties themselves need not
appear in court. United Steelworkers of Am. v. Marshall, 592 F.2d 693,
697 (3d Cir. 1979). While the San Jose Petitioners are located in the
Ninth Circuit, their counsel is based in the District of Columbia. Even
more notably, while the Seattle Petitioners are located in the Ninth
Circuit, their lead counsel is based in Denver. And the same Denver-
based counsel is also lead counsel for a group of intervenors that includes
the Colorado Communications and Utility Alliance, an association of 57
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local government entities throughout Colorado.9 To the extent San Jose
contends that the Ninth Circuit would be more convenient simply
because some petitioners are located in that circuit, granting its request
would needlessly inconvenience the parties and their counsel who are
located in this Circuit.
Other parties and their counsel are located throughout the country,
including other petitioners who sought review in this Court or other
circuits. San Jose does not contend that transfer to the Ninth Circuit
would appreciably advance the convenience of these other parties, and it
may even inconvenience them; indeed, several of these petitioners oppose
transfer to the Ninth Circuit. And though San Jose contends that “states
and their subdivisions’ interests are far more affected by this Order than
are the interests of other petitioners” (Mot. 8), courts have “made clear
that ‘it is inappropriate to compare the relative aggrievement’” of parties
challenging the order when considering a transfer motion. Oil, Chem. &
Atomic Workers Local Union No. 6-418 v. NLRB, 694 F.2d 1289, 1300
9 See City of Bakersfield et al. Motion for Leave to Intervene at 2 n.1,
City of Seattle v. FCC, No. 18-9571 (10th Cir. filed Nov. 23, 2018) (describing the Colorado Communications and Utility Alliance and its members).
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(D.C. Cir. 1982) (quoting Liquor Salesmen’s Union Local 2 v. NLRB, 664
F.2d 1200, 1206 (D.C. Cir. 1981)). San Jose’s preference to challenge the
September Order in the Ninth Circuit does not override the operation of
the judicial lottery mechanism or deprive other aggrieved parties of their
right to seek review in another forum.
None of the issues addressed in the September Order are in any way
specific to the Ninth Circuit. The September Order established nationwide
rules governing the deployment of small wireless facilities across the
country. While San Jose and Seattle filed their petitions for review in
the Ninth Circuit, other municipalities filed similar petitions in the
Fourth, Eighth, and D.C. Circuits—including a joint petition in the D.C.
Circuit filed by municipalities located in eleven of the twelve regional
circuits. See City of Austin v. FCC, No. 18-1326 (D.C. Cir. filed Dec. 11,
2018) (filed on behalf of municipalities in the First, Second, Third,
Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Eleventh, and D.C.
Circuits).
Nor is there any merit to San Jose’s claim (Mot. 6-7) that the
interest of justice requires that the two orders be heard by the same court
to ensure consistent outcomes. Although both orders involve, among
other issues, the Commission’s interpretation of the “effective
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prohibition” language in Sections 253 and 332(c)(7) of the
Communications Act, they apply that interpretation in wholly distinct
contexts. Cf. Mobil Oil, 814 F.2d at 1003 (holding that “[t]hese
similarities are not such * * * as to advise or compel a transfer” where
two orders used the same statutory authority to address different issues).
And while the September Order contains a handful of citations to the
August Order, it does not rely on the August Order for any of its legal
conclusions. Most of these citations appear in string cites as but one of
several authorities for a well-established legal proposition; some simply
describe actions that the Commission has taken in the past to provide
historical background; and yet others distinguish matters addressed in
the August Order.
That the September Order does not rely on the August Order is
underscored by footnotes 79 and 103 of the September Order, in which
the Commission acknowledged that several parties have petitioned for
agency reconsideration of the August Order and explained that the
determinations in the September Order did not require the Commission
to resolve the petitions for reconsideration (which remain pending). The
Commission thus made clear that the September Order stands on its own,
and will continue to stand even if the petitions for reconsideration lead it
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to modify or rescind the August Order. And just as the September Order
would stand if the Commission were to reconsider or rescind the August
Order, so too the September Order would stand even if a court were to
vacate the August Order. There is thus no reason to expect the Ninth
Circuit’s disposition of challenges to the August Order to require any
particular outcome on review of the September Order—or vice versa,
should this Court decide the challenges to the September Order before
the Ninth Circuit acts10—and thus no inconsistency in allowing the two
different orders to be reviewed by two different courts.
Finally, San Jose suggests (Mot. 7) that this case should be in the
Ninth Circuit because it wishes to rely on a prior Ninth Circuit case
addressing 47 U.S.C. §§ 253 and 332(c)(7). But it neglects to mention
that this Court has also issued a series of decisions interpreting those
same statutory provisions. See, e.g., T-Mobile Cent., LLC v. Unified Gov’t
of Wyandotte Cnty., 546 F.3d 1299 (10th Cir. 2008); Qwest Corp. v. City
of Santa Fe, 380 F.3d 1258 (10th Cir. 2004); RT Commc’ns, Inc. v. FCC,
10 The Commission has moved to hold the Ninth Circuit’s review of the
August Order in abeyance until the agency rules on the petitions for reconsideration of that order. If the Ninth Circuit grants that motion, that would only further diminish any argument for transfer.
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201 F.3d 1264 (10th Cir. 2000). There is thus no reason to think the
Ninth Circuit has any greater facility with those statutory provisions
than this Court—assuming that were even a relevant consideration. Cf.
Am. Pub. Gas Ass’n v. Fed. Power Comm’n, 555 F.2d 852, 857–58 & n.3
(D.C. Cir. 1976) (per curiam) (rejecting similar argument because
“[i]mplicit in the argument is a concept of specialized circuits and panels
for certain types of cases, a suggestion we have previously rejected”). It
would hardly be in the interests of justice to saddle the Ninth Circuit
with a sprawling and potentially unmanageable case involving separate
Commission decisions relating to pole attachments, infrastructure
deployment moratoria, state and local fees, aesthetic requirements, and
timelines for state and local authorizations.
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CONCLUSION
The motions to transfer should be denied.11
Dated: December 17, 2018 Respectfully submitted,
/s/ Scott M. Noveck
Makan Delrahim Assistant Attorney General
Robert B. Nicholson Adam D. Chandler
Attorneys U.S. DEPARTMENT OF JUSTICE 950 PENNSYLVANIA Ave. NW Washington, DC 20530 Counsel for Respondent
United States of America
Thomas M. Johnson, Jr. General Counsel
David M. Gossett Deputy General Counsel
Jacob M. Lewis Associate General Counsel
Scott M. Noveck Counsel
FEDERAL COMMUNICATIONS COMMISSION
445 12th Street SW Washington, DC 20554 (202) 418-1740 [email protected] Counsel for Respondent Federal
Communications Commission
11 The Court has also asked the FCC to “address whether transfer is
permissible before the agency record is filed.” 11/30/18 Order at 4. In the FCC’s view, once the Judicial Panel has issued a consolidation order designating the court in which the record is to be filed, there is no good reason to postpone the disposition of any transfer motions until the record is officially filed.
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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. 27(d)(2)(A) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f):
☒ this document contains 3,574 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 2016 in 14-point Century Schoolbook, or
☐ this document has been prepared in a monospaced spaced typeface using with .
/s/ Scott M. Noveck Scott M. Noveck Counsel for Respondents
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CERTIFICATE OF DIGITAL SUBMISSION
I hereby certify that with respect to the foregoing document:
1. All required privacy redactions have been made per Tenth
Circuit Rule 25.5.
2. If required to file additional hard copies, the ECF submission is
an exact copy of those documents.
3. The digital submissions have been scanned for viruses with the
most recent version of a commercial virus scanning program, Cylance
PROTECT Version 2.0.1500.18 (current as of December 17, 2018), and
according to the program are free of viruses.
/s/ Scott M. Noveck Scott M. Noveck Counsel for Respondents
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CERTIFICATE OF FILING AND SERVICE
I hereby certify that on December 17, 2018, I caused the foregoing
Opposition to Motion to Transfer to be filed with the Clerk of Court for
the United States Court of Appeals for the Tenth 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/ Scott M. Noveck Scott M. Noveck Counsel for Respondents
Service List:
Christopher J. Wright Elizabeth Austin Bonner HARRIS, WILTSHIRE & GRANNIS 1919 M Street, N.W., Suite 800 Washington, DC 20036 [email protected][email protected] Counsel for Petitioner/Intervenor
Sprint Corporation
Henry Weissmann MUNGER TOLLES & OLSON 350 South Grand Avenue 50th Floor Los Angeles, CA 90071-1560 [email protected] Counsel for Petitioner/Intervenor
Verizon Communications, Inc.
Appellate Case: 18-9563 Document: 010110099054 Date Filed: 12/17/2018 Page: 24
[Service List Continued from Previous Page]
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Jonathan Meltzer MUNGER TOLLES & OLSON 1155 F Street, NW, 7th Floor Washington, DC 20004 [email protected] Counsel for Petitioner/Intervenor
Verizon Communications, Inc.
Megan L. Brown Jeremy J. Broggi WILEY REIN 1776 K Street, NW Washington, DC 20006 [email protected][email protected] Counsel for Petitioner Puerto Rico
Telephone Company, Inc.
Joseph Leonard Van Eaton BEST BEST & KRIEGER 2000 Pennsylvania Avenue, NW Suite 5300 Washington, DC 20006 [email protected] Counsel for Petitioners/Intervenors
The City of San Jose, California, et al.
Gail A Karish BEST BEST & KRIEGER 300 South Grand Avenue 25th Floor Los Angeles, CA 90071 [email protected] Counsel for Petitioners/Intervenors
The City of San Jose, California, et al.
Kenneth S. Fellman KISSINGER & FELLMAN 3773 Cherry Creek North Drive Ptarmigan Place, Suite 900 Denver, CO 80209 [email protected] Counsel for Petitioners City of
Seattle, Washington, et al. and Intervenors City of Coconut Creek, Florida, et al.
Robert Carroll May III TELECOM LAW FIRM 3570 Camino del Rio North Suite 102 San Diego, CA 92108 [email protected] Counsel for Petitioners
League of Oregon Cities et al. and Intervenors City of Bakersfield, California, et al.
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Michael J. Vigliotta Scott Franklin Field OFFICE OF THE CITY ATTORNEY CITY OF HUNTINGTON BEACH 2000 Main Street, P.O. Box 190 Huntington Beach, CA 92648 [email protected][email protected] Counsel for Petitioner
City of Huntington Beach
Tillman L Lay Jeffrey Michael Bayne SPIEGEL & MCDIARMID 1875 Eye St., NW, Suite 700 Washington, DC 20006 [email protected][email protected] Counsel for Intervenors
City of Eugene, Oregon, et al.
MacKenzie Fillow NEW YORK CITY LAW DEPARTMENT 100 Church Street, Room 6-200 New York, NY 10007 [email protected] Counsel for Intervenor
City of New York
Joshua Scott Turner Sara Baxenberg WILEY REIN 1776 K Street, NW Washington, DC 20006 [email protected][email protected] Counsel for Intervenor
CTIA—The Wireless Association
Jennifer P. Bagg Susannah J. Larson HARRIS, WILTSHIRE & GRANNIS 1919 M Street, N.W., Suite 800 Washington, DC 20036 [email protected][email protected] Counsel for Intervenor
Competitive Carriers Association
Thomas Scott Thompson DAVIS WRIGHT TREMAINE 1919 Pennsylvania Avenue, NW Suite 800 Washington, DC 20006-3401 [email protected] Counsel for Intervenor Wireless
Infrastructure Association
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Robert Nicholson Adam D. Chandler U.S. DEPARTMENT OF JUSTICE ANTITRUST DIVISION 950 Pennsylvania Avenue, NW Washington, DC 20530 [email protected][email protected] Counsel for Respondent United
States of America
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• Verizon Communications, Inc. v. FCC, No. 18-9566 (10th Cir. docketed Nov. 2, 2018) (originally filed Oct. 25, 2018)
• Puerto Rico Telephone Co. v. FCC, No. 18-9567 (10th Cir. docketed Nov. 5, 2018) (originally filed Oct. 25, 2018)
• City of San Jose v. FCC, No. 18-9568 (10th Cir. docketed Nov. 7, 2018) (originally filed Oct. 24, 2018)
• City of Seattle v. FCC, No. 18-9571 (10th Cir. docketed Nov. 7, 2018) (originally filed Oct. 24, 2018)
• City of Huntington Beach v. FCC, No. 18-9572 (10th Cir. docketed Nov. 7, 2018) (originally filed Oct. 24, 2018)
Fourth Circuit:
• Montgomery County v. FCC, No. 18-2448 (4th Cir. filed Dec. 5, 2018) (order granting transfer to the Tenth Circuit issued December 13, 2018)
Eighth Circuit:
• City of North Little Rock v. FCC, No. 18-3678 (8th Cir. filed Dec. 14, 2018) (motion to transfer to the Tenth Circuit to be filed)
Ninth Circuit:
• City & County of San Francisco v. United States, No. 18-73376 (9th Cir. filed Dec. 14, 2018) (motion to transfer to the Tenth Circuit to be filed)
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Add. 2
D.C. Circuit:
• AT&T Services, Inc. v. FCC, No. 18-1294 (D.C. Cir. filed Oct. 25, 2018) (unopposed motion to transfer to the Tenth Circuit filed November 13, 2018)
• American Public Power Ass’n v. FCC, No. 18-1305 (D.C. Cir. filed Nov. 15, 2018) (consolidated with No. 18-1294 and subject to pending motion to transfer to the Tenth Circuit)
• City of Austin v. FCC, No. 18-1326 (D.C. Cir. filed Dec. 11, 2018) (consolidated with No. 18-1294 and subject to pending motion to transfer to the Tenth Circuit)
• City of Eugene v. FCC, No. 18-1330 (D.C. Cir. filed Dec. 12, 2018) (consolidated with No. 18-1294 and subject to pending motion to transfer to the Tenth Circuit)
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Add. 3
ADDENDUM B
List of Additional Record Submissions
Date Received Filer Name(s) Link to Submission 8/3/2018 Alexis Pipkins https://www.fcc.gov/ecfs/filing/108031036606166
8/3/2018 Anthony Trapchak https://www.fcc.gov/ecfs/filing/10803205926787
8/3/2018 Braden Pace https://www.fcc.gov/ecfs/filing/1080365199517
Date Received Filer Name(s) Link to Submission 9/6/2018 CTIA https://www.fcc.gov/ecfs/filing/1090610768719
9/6/2018 Jean Rasch https://www.fcc.gov/ecfs/filing/1090667360935
9/6/2018 NTCA-The Rural Broadband Association https://www.fcc.gov/ecfs/filing/1090618571908
9/6/2018 Smart Communities and Special Districts Coalition https://www.fcc.gov/ecfs/filing/10906119432986
9/6/2018
Smart Communities Coalition,National Association of Telecommunications Officers and Advisors,National League of Cities,U.S. Conference of Mayors https://www.fcc.gov/ecfs/filing/10906149012775
The Ohio Mayors Alliance,Mayor John Cranley,Mayor Tim DeGeeter,Mayor Andrew Ginther,Mayor Don Patterson,Mayor Lydia Mihalik,Mayor Larry Mulligan Jr.,Mayor Nan Whaley https://www.fcc.gov/ecfs/filing/10918304953038
9/19/2018 Mayor Greg Fischer,Louisville Metro Government https://www.fcc.gov/ecfs/filing/10919796409517
9/19/2018 Mayor Henry Wilson https://www.fcc.gov/ecfs/filing/10919135208764
9/19/2018 Mayor John Cranley, City of Cincinnati https://www.fcc.gov/ecfs/filing/10919131524220
9/19/2018 Mayor Victoria Woodards https://www.fcc.gov/ecfs/filing/10919117530402
9/19/2018 Michael Dylan Brennan https://www.fcc.gov/ecfs/filing/10919486815220
9/19/2018 Monroe County, Florida https://www.fcc.gov/ecfs/filing/10919133249084
9/19/2018 Morgan County Commission https://www.fcc.gov/ecfs/filing/109191063913927
9/19/2018 National Association of Regulatory Utility Commissioners https://www.fcc.gov/ecfs/filing/109193017613140
9/19/2018
National Association of Telecommunications Officers and Advisors,National League of Cities,United States Conference of Mayors,National Association of Counties,National Association of Regional Councils https://www.fcc.gov/ecfs/filing/10919028495631
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Date Received Filer Name(s) Link to Submission 9/19/2018 National Association of Towns and Townships https://www.fcc.gov/ecfs/filing/109192612023425
9/19/2018
National Rural Health Association,American Telemedicine Association,National Association of Rural Health Clinics https://www.fcc.gov/ecfs/filing/10919031725561
9/19/2018 NTCA-The Rural Broadband Association https://www.fcc.gov/ecfs/filing/109200834905206
9/19/2018 Orange County, CA Board of Supervisors https://www.fcc.gov/ecfs/filing/10919390216999
9/19/2018 Patrick Bloomingdale https://www.fcc.gov/ecfs/filing/10919062311302
9/19/2018 Prince George County, VA https://www.fcc.gov/ecfs/filing/1092731541703
9/19/2018 Prince William County, Virginia https://www.fcc.gov/ecfs/filing/109202851108466
9/19/2018 Queen Anne's County Maryland Board of County Commissioners https://www.fcc.gov/ecfs/filing/109192501630598
Thomas C. Lamar, Commission Chair,David McGraw, Commissioner,Richard Walser, Commissioner https://www.fcc.gov/ecfs/filing/10919233599955
9/19/2018 T-Mobile USA, Inc. https://www.fcc.gov/ecfs/filing/109201893527990
9/19/2018
Town of Danville, California,City of Dublin, California,City of Livermore, California,City of Pleasanton, California,City of San Ramon, California https://www.fcc.gov/ecfs/filing/1092088469705
9/19/2018
Town of Danville, California,City of Dublin, California,City of Livermore, California,City of Pleasanton, California,City of San Ramon, California https://www.fcc.gov/ecfs/filing/1092072849388
9/19/2018 Urban Counties of California https://www.fcc.gov/ecfs/filing/109192799617715
The Honorable Billy Long,The Honorable Fred Upton,The Honorable Susan W. Brooks,The Honorable Gregg Harper,The Honorable Lynn Jenkins, CPA,The Honorable Kevin Yoder,The Honorable Brian Babin,The Honorable Tim Walberg,The Honorable Ron Estes,The Honorable Bill Johnson,The Honorable Robert E. Latta,The Honorable John Ratcliffe,The Honorable Ryan Costello,The Honorable David B. McKinley,The Honorable John Curtis,The Honorable John Shimkus,The Honorable Brett Guthrie,The Honorable Adam Kinzinger,The Honorable Blaine Luetkemeyer,The Honorable Mark Walker,The Honorable Gus Bilirakis,The Honorable Larry Bucshon, M.D.,The Honorable Jeff Duncan,The Honorable Michael C. Burgess, M.D.,The Honorable Tom Emmer https://www.fcc.gov/ecfs/filing/1092585347000
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