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1 Case: Document: 25 Filed: 07/28/2015 Page: 1 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT STATE OF TENNESSEE vs. Petitioner, FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA Respondents STATE OF NORTH CAROLINA vs. Petitioner, FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA Respondents No No JOINT MOTION TO CONSOLIDATE CASES AND MODIFY THE BRIEFING SCHEDULE Pursuant to Federal Rules of Appellate Procedure 26(b and 27(a and Rule 26(a of the Rules of this Court, Petitioners The State of Tennessee and The State of North Carolina, Respondent the Federal Communications Commission, and Intervenors The National Association of Regulatory Utility Commissioners, The Independent Telephone and Telecommunications Alliance, The Electric Power Board of Chattanooga, Tennessee, and The City of Wilson, North Carolina jointly 1

2 Case: Document: 25 Filed: 07/28/2015 Page: 2 and respectfully move that (1 the Court consolidate these two cases, and (2 modify the briefing schedule set forth in the briefing letters issue by the Clerk of the Court on July 20, The United States consents to this motion. (1 Consolidation The parties respectfully submit that the consolidation of these two cases will preserve the Court s resources and allow for more efficient briefing and argument of the issues. These cases petition for review of a single FCC Order which preempted laws in both Tennessee and North Carolina. See City of Wilson, North Carolina Petition for Preemption of North Carolina General Statute Sections 160A-340 et seq.; The Electric Power Board of Chattanooga, Tennessee Petition for Preemption of a Portion of Tennessee Code Annotated Section , Memorandum Opinion and Order, FCC (Mar. 12, There is considerable overlap in the issues to be decided, including the FCC s authority to preempt under the federal statute in question and the relevance of precedent. The movants agree that consolidating the cases will be more efficient than proceeding separately, allowing the parties and Court to address these overlapping issues once. (2 Briefing Schedule The parties also jointly state that good cause exists to modify the briefing schedule. The cases present novel questions of constitutional, statutory, and administrative law, as well as an extensive record and 2

3 Case: Document: 25 Filed: 07/28/2015 Page: 3 lengthy administrative Order. To adequately address these issues, the parties respectfully move for a modest extension of the briefing schedule as follows: Petitioners opening briefs separate briefs for NC and TN, 14,000 words each Opening briefs for Intervenors in support of Petitioners 14,000 words each Respondents brief one brief for Respondents, 28,000 words Briefs of Intervenors in support of Respondents one brief of 28,000 words or two briefs, 14,000 words each Petitioners reply briefs separate briefs from NC and TN, 7,000 words each Reply briefs of Intervenors in support of Petitioners 7,000 words each September 18, 2015 September 18, 2015 November 5, 2015 November 5, 2015 November 23, 2015 November 23, 2015 CONCLUSION For the foregoing reasons, counsel for the Petitioners, Respondent the FCC, and Intervenors respectfully request that the Court grant this motion to consolidate these cases and modify the briefing schedule as set out above. 3

4 Case: Document: 25 Filed: 07/28/2015 Page: 4 July 28, 2015 Respectfully submitted, /s/ Matthew J. Dunne Matthew J. Dunne Counsel Richard K. Welch Deputy Associate General Counsel Federal Communications Commission Washington, D.C ( Counsel for the Federal Communications Commission /s/ James Bradford Ramsay James Bradford Ramsay National Association of Regulatory Utility Commissioners 1101 Vermont Avenue, N.W. Washington, DC ( Counsel for the National Association of Regulatory Utility Commissioners /s/ Joshua Turner Joshua Turner Megan Leef Brown Wiley Rein 1776 K Street, N.W. Washington, DC ( Counsel for the State of Tennessee /s/ John Foster Maddrey John Foster Maddrey Solicitor General, North Carolina N.C. Department of Justice P.O. Box 629 Raleigh, NC ( Counsel for the State of North Carolina [Signatures continued on next page] /s/ Genevieve Morelli Genevieve Morelli ITTA 1101 Vermont Avenue, N.W. Suite 501 Washington, DC Counsel for the Independent Telephone and Telecommunications Alliance 4

5 Case: Document: 25 Filed: 07/28/2015 Page: 5 /s/ Frederick Hitchcock Frederick Hitchcock Tom Greenholtz Chambliss, Bahner & Stophel 605 Chestnut Street Suite 1700 Chattanooga, TN ( Kathryn S. King 10 West M. L. King Boulevard P.O. Box Chattanooga, TN ( Counsel for the Electric Power Board of Chattanooga, Tennessee /s/ James Baller James Baller Sean A. Stokes Ashley M. Stelfox Baller Herbst Stokes & Lide, PC 2014 P Street, N.W. Washington, DC ( /s/ James Baller James Baller Sean A. Stokes Ashley M. Stelfox Baller Herbst Stokes & Lide, PC 2014 P Street, N.W. Washington, DC ( James P. Cauley III Gabriel Du Sablon Cauley Pridgen, P.A Nash Street N Suite C PO Drawer 2367 Wilson, NC ( Counsel for the City of Wilson, North Carolina Of Counsel for the Electric Power Board of Chattanooga, Tennessee 5

6 Case: Document: 25 Filed: 07/28/2015 Page: 6 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT THE STATE OF TENNESSEE, Petitioner, v. No FEDERAL COMMUNICATIONS COMMISSION AND THE UNITED STATES OF AMERICA, Respondents. CERTIFICATE OF SERVICE I, Matthew J. Dunne, hereby certify that on July 28, 2015, I electronically filed the foregoing Joint Motion to Consolidate Cases and Modify the Briefing Schedule with the Clerk of the Court for the United States Court of Appeals for the Sixth Circuit by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Joshua S. Turner Megan L. Brown Wiley Rein, LLP 1776 K Street, N.W. Washington, D.C Counsel for: State of TN Tom Greenholtz Frederick Hitchcock Chambliss Bahner & Stophel 605 Chestnut Street Suite 1700 Chattanooga, TN Counsel for: Electric Power Bd. Of Chattanooga Scott A. Westrich Kristen C. Limarzi Robert B. Nicholson U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Ave., N.W. Room 3224 Washington, D.C Counsel for: USA James Bradford Ramsay National Ass n of Regulatory Utility Commissioners 1101 Vermont Ave., N.W. Washington, D.C Counsel for: NARUC

7 Case: Document: 25 Filed: 07/28/2015 Page: 7 James Baller Baller Hebst 2014 P Street, N.W. Suite 202 Washington, D.C Counsel for: City of Wilson, NC /s/ Matthew J. Dunne