NATIONAL LIFELINE ASSOCIATION; FILEDI JAN 2 ASSIST WIRELESS, LLC; wr FOR THE DISTRICT OF COLUMBIA CIRCU] f FOR DITRIT Q QCLJMHA ILtUIt IN THE UNITED STATES COURT OF APPEAl Ur B t NA L 1 4820-9492-7702v.2 Service, Fourth Report and Order, Order on Reconsideration, Memorandum Reform and Modernization, Telecommunications Carriers Eligible for Universal Bridging the Digital Divide for Low-Income Consumers, Lfeline and Link Up Federal Communications Commission ( FCC captioned In the Matter of (collectively, Petitioners hereby petition this Court for review of the order of the Wireless, and Easy Telephone Services Company d/b/a Easy Wireless Association, Assist Wireless, LLC, Boomerang Wireless, LLC d/b/a entouch and 2344 and Federal Rule of Appellate Procedure 15(a, National Lifeline Pursuant to 5 U.S.C. 706, 47 U.S.C. 402(a, 28 U.S.C. 2342(1 PETITION FOR REVIEW OF AMERICA, v. Petitioners, D/B/A EASY WIRELESS, FEDERAL COMMUNICATIONS Respondents. COMMISSION and UNITED STATES BOOMERANG WIRELESS, LLC D/B/A CLERK ENTOUCH WIRELESS; EASY TELEPHONE SERVICES COMPANY Case No: 17-18 102 G USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 Page 1 of 14
USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 Page 2 of 14 Opinion and Order, Notice of Proposed Rulemaking, and Notice of Inquiry, WC Docket Nos. 17-287, 11-42, 09-197, FCC 17-155 (FCC Rel. Dec. 1,2017 ( Order. A summary of the Order, which was issued in a notice-and-comment rulemaking proceeding, was published in the Federal Register on January 16, 2018. See 83 Fed. Reg. 2104. A copy of the Order is attached hereto as Exhibit A. Venue is proper in this Court pursuant to 28 U.S.C. 2343. In the Order, the FCC made several changes to its Lifeline program, a federal program that enables qualifying low-income Americans to have access to affordable communications services by subsidizing the cost of those services, which are provided by entities known as Eligible Telecommunications Carriers or ETCs under the FCC s rules. Petitioners include several Lifeline ETCs that provide resold and non-facilities-based wireless services to subscribers who are eligible for certain enhanced Tribal Lifeline benefits, and the National Lifeline Association ( NaLA, an industry association representing the interests of Lifeline ETCs, including the individual ETCs named in this Petition for Review. Petitioners participated in the FCC proceeding that culminated in the Order. Petitioners seek relief from portions of the Order that will (1 limit enhanced Tribal Lifeline support to facilities-based service and (2 limit Lifeline support to rural Tribal areas pursuant to a newly established FCC definition. See Order, J 4$20-9492-7702v.2 2
USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 Page 3 of 14 2-31, 142, 145. As a result of these and other changes implemented by the Order, Petitioners are aggrieved by the Order and have standing to challenge it. Petitioners therefore seek review of those portions of the Order addressing Tribal Lifeline support, including paragraphs 2-31, 142, and 145 of the Order, on the grounds that they are arbitrary and capricious, an abuse of discretion, in excess of the FCC s statutory authority, and without observance of procedure required by law within the meaning of the Administrative Procedure Act, 5 U.S.C. 701 et seq.; violate federal law, including, but not limited to, the Constitution, the Communications Act of 1934, as amended, and FCC regulations promulgated thereunder; conflict with the notice-and-comment rulemaking requirements of 5 u.s.c. 553; and are otherwise contrary to law. Accordingly, Petitioners respectfully request that this court hold unlawful, vacate, enjoin, and set aside those portions of the Order addressing Tribal Lifeline support, including paragraphs 2-31, 142 and 145 of the Order, or, in the alternative, that it remand to the FCC for compliance with the notice-and-comment rulemaking requirements of 5 U.S.C. 553, and that it provide such additional relief as may be appropriate. 4$20-9492-7702v.2 3
USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 Page 4 of 14 Respectfully submitted, John J. Heitmann Counsel ofrecord KELLEY DRYE & WARREN LLP Washington Harbour, Suite 400 3050 K Street, NW Washington, DC 20007 Telephone: (202 342-8544 jheitmannkelleydrye.com Dated: January 25, 2018 Attorneyfor National Lifeline Association; Assist Wireless, LLC; Boomerang Wireless, LLC d/b/a en Touch Wireless; and Easy Telephone Services Company d/b/a Easy Wireless 4$20-9492-7702v.2 4
OR DtI4lt USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 Page 5 of 14 rr Iflt Th elumt!a huii JAN ZSZU FQ DSTIQI OF Q4iA CIRCUIt FILEDI IN THE UNITED STATES COURT Of APPF AL - FOR THE DISTRICT OF COLUMBIA CIR( UIT CLERK JAN NATIONAL LIFELINE ASSOCIATION; ASSIST WIRELESS, LLC; BOOMERANG WIRELESS, LLC D/B/A * ENTOUCH WIRELESS; EASY 18 TELEPHONE SERVICES COMPANY Case No: 17- D/B/A EASY WIRELESS, 102 G Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, and Circuit Rule 26.1, Petitioner National Lifeline Association ( NaLA states that it is the leading national trade association representing service providers and vendors serving low-income households participating in the Federal Communications Commission s Lifeline program. NaLA is a not-for-profit corporation and has not issued shares or debt securities to the public. NaLA does not have any parent companies, subsidiaries, or affiliates whose listing is required by Rule 26.1. 4$20-9492-7702v.2 5
USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 Page 6 of 14 John J. Heitmann KELLEY DRYE & WARREN LLP Washington Harbour, Suite 400 3050 K Street, NW Washington, DC 20007 Telephone: (202 342-8544 jheitmannkelleydrye.com Dated: January 25, 2018 Attorneyfor National Lifeline Association 4820-9492-7702v.2 6
RECEWED FOR THE DISTRICT OF COLUMBIA CIRCU CLERK IN THE UNITED STATES COURT OF APPEA S FILED JAN Ut Lifeline services to customers eligible for Tribal Lifeline benefits. Assist is an eligible telecommunications carrier ( ETC that provides ownership interest in Assist. company. There are no publicly held companies that have a 10% or greater Assist is 3 2.86% owned by SXCS Investments LLC, which is not a publicly held Assist is 32.86% owned by BBBY, Ltd., which is not a publicly held company. 32.86% owned by Flagship Equity LLC, which is not a publicly held company. Circuit Rule 26.1, Petitioner Assist Wireless, LLC ( Assist states that Assist is Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, and CORPORATE DISCLOSURE STATEMENT Respondents. OF AMERICA, Petitioners, NATIONAL LIFELINE ASSOCIATION; ASSIST WIRELESS, LLC; BOOMERANG WIRELESS, LLC D/B/A ENTOUCH WIRELESS; EASY., TELEPHONE SERVICES COMPANY Case No: 17-_ 01 V D/B/A EASY WIRELESS, FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES I bt 1 th QITRIO1 Q QL4p FUF ThIT USCA Case #18-1026 QF un Document #1715023 Filed: 01/25/2018 Page 7 of 14. v. 7 4$20-9492-7702v.2
USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 Page 8 of 14 John I. Heitmann KELLEY DRYE & WARREN LLP Washington Harbour, Suite 400 3050 K Street, NW Washington, DC 20007 Telephone: (202 342-8544 jheitmann(kel1eydrye.com Dated: January 25, 2018 Attorneyfor Assist Wireless, LLC 4820-9492-7702v.2 8
UM+W $ii hjj FOR DTIOT O OUMBIA OIRCUIT USCA ricase #18-1026 Document #1715023 Filed: 01/25/2018 Page 9 of 14 fti1 UIhkJOI LCI U k L r çii IN THE UNITED STATES COURT OF APPEA LS FOR THE DISTRICT OF COLUMBIA CIRCI IT FILED JAN 2 S CLERK NATIONAL LIFELINE ASSOCIATION; ASSIST WIRELESS, LLC; BOOMERANG WIRELESS, LLC D/B/A ENTOUCH WIRELESS; EASY Q I TELEPHONE SERVICES COMPANY Case No: 17- D/B/A EASY WIRELESS, U L U Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, and Circuit Rule 26.1, Petitioner Easy Telephone Services Company d/b/a Easy Wireless states that it has no parent company and is neither owned nor controlled by a publicly traded company. Easy is an eligible telecommunications carrier ( ETC that provides Lifeline services to customers eligible for Tribal Lifeline benefits. 9 4820-9492-7702v.2
USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 Page 10 of 14 John J. Heitmann KELLEY DRYE & WARREN LLP Washington Harbour, Suite 400 3050 K Street, NW Washington, DC 20007 Telephone: (202 342-8544 jheitmann(ke1leydrye.com Dated: January 25, 2018 Attorneyfor Easy Telephone Services Company d/b/a Easy Wireless 4820-9492-7702v.2 10
UNflib tat tjtjt USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 PIAL FOR Page DISTRICT 11 of or14 CQIIJMA IRCVII Qj; co cfc;fr IN THE UNITED STATES COURT OF FOR THE DISTRICT OF COLUMBIA NATIONAL LIFELINE ASSOCIATION; ASSIST WIRELESS, LLC; BOOMERANG WIRELESS, LLC D/B/A ENTOUCH WIRELESS; EASY TELEPHONE SERVICES COMPANY D/B/A EASY WIRELESS, Petitioners, APPEALS F1LEDLANU1 CIRCUIT 18 1021 Case No: 17- CLERK v. FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Respondents. CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, and Circuit Rule 26.1, Petitioner Boomerang Wireless, LLC d/b/a entouch Wireless ( Boomerang states that it is 100% owned by RH Ventures, LLC. Boomerang is neither owned nor controlled by a publicly traded company. Boomerang is an eligible telecommunications carrier ( ETC that provides Lifeline services to customers eligible for Tribal Lifeline benefits. I //I 4820-9492-7702v.2 11
12 Dated: January 25, 2018 d/b/a en Touch Wireless Attorneyfor Boomerang Wireless, LLC 3050 K Street, NW KELLEY DRYE & WARREN LLP Washington Harbour, Suite 400 jheitmann@kelleydrye.com John J. Heitmann Washington, DC 20007 Telephone: (202 342-8544 USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 Page 12 of 14 4820-9492-7702v.2
foregoing Petition for Review, Corporate Disclosure Statements and the order of Fourth Report and Order, Order on Reconsideration, Memorandum Opinion and receipt requested, addressed to the persons listed below: Order, Notice of Proposed Rulemaking, and Notice of Inquiry, WC Docket Nos. copy thereof enclosed in a post-paid wrapper, in an official depository under the 17-287, 11-42, 09-197, FCC 17-155 (FCC Rel. Dec. 1, 2017, by depositing a true Digital Divide for Low-Income Consumers, Lfeline and Link Up Reform and the Federal Communications Commission captioned In the Matter of Bridging the Modernization, Telecommunications Carriers Eligible for Universal Service, exclusive care and custody of the U.S. Postal Service by certified mail, return Federal Communications Commission Washington DC 20554 Attorney General of the United States Washington DC 20530 Washington, DC 20530 555 4th Street, NW 950 Pennsylvania Avenue, NW U.S. Attorney for the District of Columbia 445 l2 Street SW The Office of the General Counsel Civil Process Clerk I hereby certify that on this 25 day of January, 2018, I served the CERTIFICATE OF SERVICE USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 Page 13 of 14 4$20-9492-7702v.2 13
Boomerang Wireless, LLC d/b/a Easy Wireless 3050 K Street, NW Telephone Services Company d/b/a en Touch Wireless, and Easy jheitmannke11eydrye.com John J. Heitmann Kelley Drye & Warren LLP Counsel ofrecord Washington Harbour, Suite 400 Washington, DC 20007 Association; Assist Wireless, LLC, Telephone: (202 342-8544 Attorney for National Lifeline USCA Case #18-1026 Document #1715023 Filed: 01/25/2018 Page 14 of 14 4$20-9492-7702v.2 14