UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
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1 Appellate Case: Document: Date Filed: 10/09/2013 Page: 1 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ACCIPITER COMMUNICATIONS INC., Petitioner v. No FEDERAL COMMUNICATIONS COMMISSION, et al Respondents ALLBAND COMMUNICATIONS COOPERATIVE, Intervenor-Petitioner, VERIZON COMMUNICATIONS, INC., Intervenor-Respondent. RESPONSE OF ALLBAND COMMUNICATIONS COOPERATIVE IN OPPOSITION TO FCC S MOTION TO HOLD IN ABEYANCE Allband Communications Cooperative ( Allband ), Intervenor-Petitioner herein, files this response in opposition to the FCC s September 26, 2013 Motion to Hold in Abeyance filed in this case. 1
2 Appellate Case: Document: Date Filed: 10/09/2013 Page: 2 BACKGROUND The FCC s September 26, 2013 Motion in this case (page 2) states that Accipiter Communications, Inc. (Accipiter) in this case seeks review of both the Report and Order 1 and the Sixth Order on Reconsideration 2 in the Commission s Connect America Fund proceeding. The FCC s Motion (p 2) also states that the FCC in its Sixth Order on Reconsideration.. granted in part and denied in part (1) petitions for reconsideration of the benchmarking rule adopted in the Report and Order, and (2) applications for review of the HCLS Benchmarking Order, 3 in which the agency s Wireline Competition Bureau ( WCB ), acting on delegated authority, adopted a methodology to implement the benchmarking rule. Allband is incorporated as a non-profit corporation in the State of Michigan, organized as a consumer cooperative under Chapter 11 of Michigan's Non-Profit Corporation Act, 1982 PA 162. Allband's principal place of business comprises portions of four counties in Northeast Michigan. Allband is owned by 1 In the Matter of Connect America Fund; A National Broadband Plan for Our Future; Establishing Just and Reasonable Rates for Local Exchange Carriers; High-Cost Universal Service Support; Developing a Unified Intercarrier Compensation Regime; Federal-State Joint Board on Universal Service; Lifeline and Link-Up; Universal Service Reform - Mobility Fund, 26 FCC Rcd (rel. Nov. 18, 2011), 76 Fed. Reg. 73,830 (Nov. 29, 2011) ( Report and Order ). 2 In the Matter of Connect America Fund High-Cost Universal Service Support, 28 FCC Rcd 2572 (rel. Feb. 27, 2013), 78 Fed. Reg. 16,808 (Mar. 19, 2013) ( Sixth Order on Reconsideration ). 3 Connect America Fund High-Cost Universal Service Support, 27 FCC Rcd 4235 (WCB 2012) ( HCLS Benchmarking Order ). 2
3 Appellate Case: Document: Date Filed: 10/09/2013 Page: 3 its customers as a member-owned cooperative. Allband provides telecommunications services as a rural incumbent local exchange carrier. The purpose and mission of Allband is to provide communications services to its customer-members, and to the general public in its assigned service territory. Allband participated in the FCC rulemaking process leading up to the issuance of the FCC s 2011 Report and Order, and filed an appeal thereof which was consolidated with other appeals and transferred to this Court In Re: FCC , 10th Cir. Case No The FCC order included a process for carriers to file for a waiver of the FCC Order and Rules. In reliance thereon, Allband filed with the FCC its Petition of Allband Communications Cooperative for Waiver of Part and the Framework to Limit Reimbursable Capital and Operating Costs, dated February 3, Allband thereafter filed on a April 17, 2012, minor corrections to its February 3, 2012 Waiver Petition. On April 30, 2012, Allband filed with the FCC its Request to Expedite Approval of Waiver Petition of Allband Communications Cooperative. On June 27, 2012, Allband filed at the FCC its Petition for Stay of the Allband Communications Cooperative. 3
4 Appellate Case: Document: Date Filed: 10/09/2013 Page: 4 On July 25, 2012, the FCC s Wireless Competition Bureau (WCB), acting on delegated authority, issued to Allband a limited 3-year waiver order. 4 On August 24, 2012, Allband filed in the FCC dockets an Application for Review seeking review of the July 25, 2012 WCB waiver order with respect to both the per-line cap, and the benchmark regression rule. Allband s Application for review remains pending with the FCC. Allband is a recipient of high-cost universal service funding, and thus Allband s interests are substantially affected by the FCC Sixth Order on Reconsideration which deals directly with the federal Universal Service Fund, and Allband s reimbursements from said Fund. On October 1, 2013, this Court issued its Order granting Allband s Motion for Leave to Intervene in this case. ARGUMENT Allband opposes the FCC s Motion to Hold in Abeyance filed in this case because the FCC s Sixth Order on Reconsideration adversely impacts Allband, and causes unnecessary uncertainty and unpredictability that significantly impedes Allband s ongoing planning process and upcoming operations and development. Allband also asserts that the limited nature and remaining 4 In the Matter of: Allband Communications Cooperative Petition for Waiver of Certain High-Cost Universal Service Rules, WC Docket No
5 Appellate Case: Document: Date Filed: 10/09/2013 Page: 5 timeframe of the WCB Waiver Order applicable to Allband, and the lack of FCC action on Allband s languishing Application for Review of the WCB waiver order, makes any delay in the processing of this case increasingly intolerable. The FCC herein has failed to offer or suggest any remedy or accommodation to alleviate Allband s concerns or to protect its interests, as an approach to support its Motion to Hold in Abeyance. Allband also asserts that the FCC s suggestion that abatement of this case is justified based upon speculation as to the processing of, or outcome of, the consolidated case, Case No , is unwarranted. The briefing schedule in this case can be commenced without affecting that docket in any way. Moreover, this Court retains its discretion at a future time to adjust briefing, or to provide for supplemental briefing, or to otherwise control this docket to comport with the schedules or outcome in consolidated Docket The FCC s stated concerns or assertions in support of its Motion to Hold in Abeyance are far outweighed by the importance of setting a briefing schedule in this case. Allband also asserts that the FCC has presented no persuasive grounds for the grant of its Motion to Hold in Abeyance as no harm or prejudice to the FCC will occur by the setting of a briefing schedule herein. The FCC, and its Staff and Counsel, are well-familiar with the issues in this case, given the numerous rounds of rulemaking and other procedures on these issues before the FCC, and 5
6 Appellate Case: Document: Date Filed: 10/09/2013 Page: 6 also given the rounds of briefing conducted in this Court s consolidated Docket No In contrast, entities such as petitioner Accipiter and Intervenor Allband will be harmed and prejudiced by an abatement of briefing procedures in this case. CONCLUSION For the above-stated reasons, Allband respectfully requests that the FCC s Motion to Hold in Abeyance be denied. Respectfully submitted, DATED: October 9, 2013 s/don L. Keskey Don L. Keskey (P23003) Counsel for Allband Communications Cooperative Public Law Resource Center PLLC 139 W. Lake Lansing Road, Suite 210 East Lansing, MI Telephone: (517) donkeskey@publiclawresourcecenter.com 6
7 Appellate Case: Document: Date Filed: 10/09/2013 Page: 7 I, Don L. Keskey, hereby certify that: CERTIFICATE OF COMPLIANCE 1. This filing complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and 10th Cir. R. 32(a) and the type style requirements of Fed. R. App. P. 32(a)(6) because this filing has been prepared in a proportionally spaced typeface using Microsoft Word, 14-point Times New Roman font. 2. No privacy redactions were required in this document. 3. A virus scan of the PDF version of the attached documents, which are being submitted in this case via the Court s CM/ECF filing system, has been performed. The documents have been scanned with AVG Anti-virus software from servers at our service provider, Madeira Data Center, which were last updated October 9, 2013 at 8:30 a.m., and according to the program the file is free of viruses. Respectfully submitted, Dated: October 9, 2013 /s/ Don L. Keskey Don L. Keskey (P23003) Public Law Resource Center PLLC 139 W. Lake Lansing Road, Suite 210 East Lansing, MI Telephone: (517) donkeskey@publiclawresourcecenter.com Attorney for Allband Communications Cooperative
8 Appellate Case: Document: Date Filed: 10/09/2013 Page: 8 UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT ACCIPITER COMMUNICATIONS INC., Petitioner v. No FEDERAL COMMUNICATIONS COMMISSION, et al Respondents ALLBAND COMMUNICATIONS COOPERATIVE, Intervenor-Petitioner, VERIZON COMMUNICATIONS, INC., Intervenor-Respondent. CERTIFICATE OF SERVICE I hereby certify that on October 9, 2013, I caused the foregoing Response of Allband Communications Cooperative in Opposition to the Federal Communications Commission s Motion to Hold in Abeyance, and Certificate of Compliance, to be filed using the Court s CM/ECF system. I further certify that the foregoing documents were furnished through ECF electronic service to all parties in this case through a registered CM/ECF user
9 Appellate Case: Document: Date Filed: 10/09/2013 Page: 9 This document will be available for viewing and downloading on the CM/ECF system. Respectfully submitted, Dated: October 9, 2013 /s/ Don L. Keskey Don L. Keskey (P23003) Public Law Resource Center PLLC 139 W. Lake Lansing Road, Suite 210 East Lansing, MI Telephone: (517) donkeskey@publiclawresourcecenter.com Attorney for Allband Communications Cooperative - 2 -
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