Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS September 4, 2012 FOR THE TENTH CIRCUIT IN RE: FCC 11-161 No. 11-9900 SECOND BRIEFING ORDER Elisabeth A. Shumaker Clerk of Court Pending before the court is the Motion Regarding the Briefing Format for Respondents and their Supporting Intervenors and the Joint Response in Opposition to Motion Regarding the Briefing Format for Respondents and their Supporting Intervenors. The motion is granted in part and denied in part. I. PROVISIONS GOVERNING ALL BRIEFS SCHEDULED FOR FILING BY THIS ORDER. These consolidated cases will be proceeding on a deferred appendix, as provided in Fed. R. App. P. 30(c). Accordingly, the briefs that will be filed in connection with this order will include only preliminary or placeholder citations to the record. The briefs will be filed only in electronic form through the ECF system; no hardcopies will be filed or served at this stage. These briefs will be captioned as Uncited. The court will later issue directives with regard to the filing of an appendix, as provided in Fed. R. App. P. 30(c)(1), and the filing of final briefs in electronic and hardcopy form, as provided in Fed. R. App. P. 30(c)(2)(B). 32(a)(7)(C). All briefs must include a certification of word count as provided in Fed. R. App. P.
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 2 In counting words, the parties may exclude corporate disclosure statements, the table of contents, table of citations, any glossary provided in accordance with 10th Cir. R. 28.2(C)(6), any addendum containing statutes, rules, or regulations, and any required certifications of counsel. However, headings, footnotes, and quotations must be included in the word count. Fed. R. App. P. 32(a)(7)(B)(iii). The court stresses that the word counts imposed by this and any future orders should be considered ceilings, not floors. The parties are encouraged to prepare briefs that do not use all the words now being allocated. 10th Cir. R. 32(A) notwithstanding, all briefs will use 14-point font. 10th Cir. R. 28.2(A) notwithstanding, the briefs of the parties will not include as an attachment a copy of the agency decision at issue herein. 10th Cir. R. 28.2(C)(4) notwithstanding, the briefs of the parties need not include a statement regarding oral argument. The court has already made a determination that oral argument is warranted, subject to reconsideration by the panel that will later be assigned to consider the consolidated cases on the merits. The various rules providing otherwise notwithstanding, the briefs of the parties also may, but need not include a statement of jurisdiction, nor a statement of the case, nor a statement of facts, except as may be warranted to supplement the preliminary briefs. The briefing deadlines established in this order for the response briefs essentially conform to the timetable proposed by the respondents. If an extension of time to file any of the briefs now being scheduled is allowed, that extension will, in fairness, require setting back the schedule for the reply briefs of the petitioners that will later be 2
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 3 established. Further, once an oral argument date is established, allowing any extensions of time for briefing becomes even more problematic for the court. For these reasons, any motions for extension of time to meet a deadline established herein will not be granted absent extraordinary circumstances. II. RESPONSE BRIEFS. The Federal Communications Commission ( FCC ) agrees to file a separate brief in response to each of the fourteen opening briefs that will be filed by the petitioners and supporting intervenors. The FCC asks that it be given the same number of words of argument space as the petitioners and asks for discretion about how to allocate those words among their fourteen response briefs. The appellate rules and the common practice of this court both allow the appellee or respondent in an appeal or review proceeding the same number of words as the appellant or petitioner. There being no compelling reason to deviate from that general rule of briefing, the request by the FCC for a number of words equal to that of the petitioners is granted, subject to the qualifications below. The petitioners and their supporting intervenors were allotted 102,785 words in total for the fourteen briefs they will be filing. However, if the petitioners and their supporting intervenors use fewer total words than the Amended First Briefing Order allows, then the FCC must use fewer total words as well. In that previous order, the petitioners and intervenors in support were required to certify the word counts in each of their briefs. After those opening uncited briefs are filed, the sum of those certified counts is the total number of words the FCC is allotted for its fourteen uncited response briefs. 3
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 4 So, for example, if the certified word count for the fourteen uncited opening briefs is a total of 94,000 words, then the FCC shall have a total of 94,000 words for its uncited response briefs. The FCC s request to be allowed some discretion as to the allocation of those words is reasonable, given the complexity and magnitude of the issues involved. However, there must be some limits to that discretion. The FCC is granted leave to make any response brief longer in word count than the opening brief to which it responds, but the difference in word count may not exceed 15% of the size of the corresponding opening brief. So, for example, if the Uncited Joint Universal Service Fund Principal Brief is certified to be 11,800 words in length, the FCC may file a response brief up to 13,570 words in length (11,800 + 1,770). The total certified word count of all the response briefs still may not exceed the total certified word count of all the opening briefs, so any overage in one or more response briefs must be made up with reduction(s) elsewhere. The petitioners have consistently stressed the need for prompt disposition of the consolidated cases. The petitioners objections to the timetable for filing response briefs proposed by the FCC reflect that strong interest, one that is shared by the court. However, the petitioners have had a considerable amount of time since the petitions for review were filed to frame their issues and work on their briefs. Further, a single office of FCC attorneys is being required to file fourteen briefs in response to the concentrated efforts of the many lawyers and firms representing the petitioners. Despite the FCC s 4
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 5 familiarity with the rulemaking at issue and the issues that will be raised, the number and complexity of those issues need not be underscored. The petitioners assert that [u]nreasonable delay in this proceeding... prejudices the Petitioners. (Response, p. 5). However, the briefing schedule advanced by the FCC is neither unreasonable nor does it appear to have been proposed for purposes of delay. In almost any appeal in this circuit, the appellee or respondent filing only a single response brief is allowed by rule 30 days for the answer. Two extensions of time of 30 days each can generally be granted on a reasonable showing of cause. In cases of significant complexity, the court allows additional time beyond these general parameters. All things considered, the FCC s proposed briefing schedule is fair and is approved. Accordingly, the following briefing parameters for response briefs by the FCC and the United States will be followed: 1. On or before February 6, 2013, the respondents will file an Uncited Response to the Joint Preliminary Brief of the Petitioners. This brief will contain no argumentation of any kind. The brief will contain only a table of contents, a table of authorities, any introductory section that might be helpful to the court, and any restatements of the issues, of the case, of the facts, and of the standards of review that may be warranted in response to the corresponding sections of the brief of the petitioners. The purpose of this brief will be to: (1) provide for the court additional factual and procedural background necessary to place the merits briefs that will follow in context; and (2) avoid duplicative formal parts in the response briefs. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 5
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 6 2. On or before February 20, 2013, the respondents will file an Uncited Response of the Respondents to the Joint Intercarrier Compensation Brief. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 3. On or before February 20, 2013, the respondents will file an Uncited Response of the Respondents to the Joint Universal Service Fund Brief. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. On or before March 6, 2013, the respondents shall file the following briefs: 4. Uncited Response of the Respondents to the Wireless Carrier Universal Service Fund Brief. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 5. Uncited Response of the Respondents to AT&T s Brief. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 6. Uncited Response of the Respondents to the Voice Over Internet Coalition Brief. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 7. Uncited Response of the Respondents to Halo Wireless, Inc. and Transcom Enhanced Services, Inc. s Brief. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 8. Uncited Response of the Respondents to the Tribal Carriers Brief. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 6
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 7 9. Uncited Response of the Respondents to the National Association of State Utility Consumer Advocates Brief. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 10. Uncited Response of the Respondents to the Carrier Access Charge Recovery Brief. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 11. Uncited Response of the Respondents to the Additional Intercarrier Compensation Issues Brief. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 12. Uncited Response of the Respondents to the Additional Universal Service Fund Issues Brief. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 13. Uncited Response of the Respondents to the Rural Incumbent Local Exchange Carriers and State Commission Intervenors Brief in Support of Petitioners. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. 14. Uncited Response of the Respondents to the Wireless Carrier Intervenors Brief in Support of Petitioners. This brief will be certified pursuant to Fed. R. App. P. 32(a)(7)(C) as to word count. III. BRIEFS OF THE INTERVENORS SUPPORTING THE FCC. A. The Pending Motion and Response. The intervenors who support the FCC have requested leave to file three briefs containing 13,000 words (Intercarrier Compensation), 11,000 words (Universal Service 7
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 8 Fund), and 6,000 words (Voice Over Internet), respectively. The request is opposed by the petitioners, who assert generally that the respondents and their supporting intervenors should be allotted the same number of words allowed the petitioners and their supporting intervenors, to be divided as the respondents and their supporting intervenors might elect. In so doing, the petitioners offer a reasonable rebuttal to the intervenors request that is attractive in its simplicity and facial fairness. The principal concern raised by this objection is that the FCC is charged with defending its rulemaking, and should not have to compete with private interests for argument space to discharge that important role in the judicial process. Moreover, to the extent the respondents and their supporting intervenors might be allowed more total argument space in the principal briefs than the petitioners, that difference will be more than compensated for when the petitioners file their reply briefs. Further, the intervenors supporting the FCC have just as much interest in the outcome of these consolidated proceedings as the petitioners. Unlike those who oppose the rulemaking at issue herein, the intervenors supporting the FCC lack the procedural ability to file a petition for review to advance those interests. Their recitation of instances wherein this court has been generous in allowing intervenor participation is informative. In search of additional guidance, the court has also reviewed the Local Rules of the U.S. Court of Appeals for the District of Columbia Circuit (see, e.g., D.C. Cir. R. 28(d) and D.C Cir. R. 32(a)(2)), the court with primary jurisdiction in cases like these. 8
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 9 But at the same time, the court is mindful that the FCC has already been allocated as much argument space as the petitioners and the union of the interests of the FCC and its supporting intervenors is significant. The principal difficulty in determining a reasonable allocation of argument space for the intervenors supporting the rulemaking is the level of uncertainty as to the specific issues the petitioners will raise, how those issues will be framed and argued, and especially how adequately the FCC will represent the intervenors interests in its fourteen response briefs addressing those issues. On balance, and absent agreement to the contrary, the intervenors supporting the FCC should be afforded the opportunity to review the principal briefs and to then make a significantly more informed determination as how much argument space might be warranted to represent their interests in a manner not duplicative of the arguments advanced by the FCC. Accordingly, the respondents request for a specific number of briefs and words in support of the FCC by intervenors is denied at this time without prejudice. After the opening and response briefs have been filed, liaison counsel for the respondents may file a motion with a new proposal regarding the filing of intervenor briefs in support of the FCC. After any response to the motion is filed by liaison counsel for the petitioners, a governing order may be issued at that time. However, it might be expected that the motion and response in opposition will likely be referred for later disposition by the panel of judges who will ultimately be assigned to the consolidated proceedings after the cases have been otherwise fully briefed and set for oral argument. If the question of intervenor 9
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 10 participation cannot readily be resolved now, that panel would be in the best position to determine to what extent additional briefing beyond that already provided by the parties might be helpful to the court. B. An Alternative Proposal. As an alternative to filing a later motion as discussed above, the court approves the following proposal, if it is agreeable with the intervenors supporting the FCC. The intervenors would be allotted 20,000 words that could be allocated as the intervenors may choose in support of the fourteen response briefs that the FCC is authorized to file. In other words, the intervenors would be permitted to file as many as fourteen individual uncited briefs that would directly support whichever of the corresponding briefs of the FCC the intervenors elect to support. Intervenors briefs in support of all fourteen briefs need not be filed; the intervenors could be selective. So, for example, the intervenors could file a 2,000 word Uncited Intervenors Brief in Support of the Response of the Respondents to the Joint Intercarrier Compensation Brief; a 2,500 word Uncited Intervenors Brief in Support of the Response of the Respondents to the Joint Universal Service Fund Brief; and might elect to file no brief in support of the Uncited Response of the Respondents to the Wireless Carrier Universal Service Fund Brief; etc. The only restriction would be that the sum total of all the words in the uncited intervenors briefs in support of the selected briefs of the FCC must be certified not to exceed 20,000 words. 10
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 11 In order to prevent duplication of arguments made by the FCC, the various uncited briefs of the intervenors authorized under this proposal would be filed at a point in time after the filing of the uncited briefs of the FCC they support (see below for the proposed filing date). The next round of briefing would be the uncited reply briefs of the petitioners. However, at the final stage of the briefing, when the final cited briefs are tendered after the deferred appendix has been filed, each of the intervenors briefs in support of the FCC would be required to be merged electronically and physically to the brief it supports. So, using the example above, the final Response of the Respondents to the Joint Intercarrier Compensation Brief must be merged with the final Intervenors Brief in Support of the Response of the Respondents to the Joint Intercarrier Compensation Brief to form a single pdf file for docketing in the consolidated cases; the final Response of the Respondents to the Joint Universal Service Fund Brief must be merged with the final Intervenors Brief in Support of the Response of the Respondents to the Joint Universal Service Fund Brief; etc. At the final stage, each pair of related briefs must also be bound together to create a single bound hardcopy of the brief. In other words, the hardcopies of each merged brief must be identical to the merged electronic version. The final merged briefs would each have a cover that would identify each single document as being both the response of the FCC to a particular petitioners brief and the intervenors supporting response to that same brief. 11
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 12 This approach offers advantages both to the court and to the parties. This approach consolidates the discussion of related issues into the fewest number of briefs. There would be fourteen opening briefs, fourteen response briefs, and fourteen reply briefs. The court would not be obliged to search separate briefs of the intervenors to find the intervenors arguments that relate to a particular petitioners brief. The intervenors would be able to more sharply target their responses to specific contentions of the petitioners. The petitioners would benefit from being able to file reply briefs that are focused on consolidated responses to their respective opening briefs. The possibility of a separate round of later briefing would be avoided. Certainty and finality would be established in the briefing. The court recognizes that this approach would require the intervenors supporting the FCC to work together in allocating a finite amount of argument space among entities with sometimes divergent interests. But in that regard, the intervenors would be asked to do essentially the same thing the petitioners were required to do. The court also acknowledges that electronically merging each of the cited response briefs of the respondents with its corresponding cited intervenors brief when the final briefs are filed would require the application of some minor technical knowledge. But the court is confident the electronic merging of the briefs is a manageable task, as would be the physical binding of the hardcopies. From the perspective of the petitioners, the court also is mindful that this proposal allocates to the respondents and their supporters 20,000 words more than the petitioners have been allotted for the principal briefs, despite the fact that the petitioners carry the 12
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 13 burden of persuasion with challenging standards of review. Nevertheless, the court is trying to take into account that while the interests and perspectives of the FCC and their supporting intervenors are highly similar, they may not be complete identical on all issues. As already noted, the petitioners get the final word and will more than make up the difference in argument space with their reply briefs. In the motion now being denied without prejudice, the intervenors had proposed that their uncited briefs be filed by March 27, 2013. In recognition of the fact that the court s proposal would require greater coordination among intervenors counsel and greater effort to keep their supporting arguments concise and nonduplicative, if the intervenors agree to this proposal, the due date for their various uncited support briefs will be set at April 10, 2013. On or before September 18, 2012, liaison counsel for the respondents shall file a status report with this court stating whether the respondents and their supporting intervenors agree to the approach now being recommended. Additional directives will be issued at that time, depending on the response. III. REPLY BRIEFS. The court has specific parameters in mind for the uncited reply briefs. However, the particulars will depend on whether the intervenors in support of the respondents agree to the briefing approach recommended herein. The only aspect of the uncited reply briefing on which the court will seek guidance from the petitioners is the timing. The petitioners are urged to give consideration to that question in anticipation of being asked 13
Appellate Case: 11-9900 Document: 01018907223 Date Filed: 09/04/2012 Page: 14 to recommend a filing date or dates once the question is settled as to whether briefs of the FCC-supporting intervenors will be filed with certainty now, or possibly later. IV. THE DEFERRED APPENDIX. Appendix preparation is a matter that should be an ongoing effort by the FCC. The agency must be in a position to file the deferred appendix immediately once the uncited briefs have been filed. Additional directives regarding the deferred appendix will be issued at a later date. Entered for the Court ELISABETH A. SHUMAKER, Clerk by: Douglas E. Cressler Chief Deputy Clerk 14