Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 1 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT METROPCS COMMUNICATIONS, INC.; METROPCS 700 MHZ, LLC; METROPCS AWS, LLC; METROPCS CALIFORNIA, LLC; METROPCS FLORIDA, LLC; METROPCS GEORGIA, LLC; METROPCS MASSACHUSETTS, LLC; METROPCS MICHIGAN, INC.; METROPCS NETWORKS CALIFORNIA, LLC; METROPCS NETWORKS FLORIDA, LLC; METROPCS TEXAS, LLC; and METROPCS WIRELESS, INC. Appellants, v. Case No. 11-1016 FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Appellee. OPPOSITION TO MOTION TO DISMISS Appellants MetroPCS Communications, Inc. and its FCC-licensed subsidiaries (collectively, MetroPCS hereby oppose the Motion to Dismiss and to Defer Filing of the Record (the Motion filed by the Federal Communications Commission (the Commission or FCC in this proceeding on January 28, 2011.
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 2 1. In the order on appeal, Preserving the Open Internet; Broadband Industry Practices, Report and Order, 25 FCC Rcd 17905 (2010 (the Order, the Commission imposed Internet open-access requirements on mobile broadband providers (such as MetroPCS based in part on its authority to modify and condition the licenses of wireless carriers. 47 U.S.C. 316(a(1. The Commission declared that it was acting to change the license... terms of mobile broadband providers and to impose new requirements on existing licenses beyond those that were in place at the time of grant, Order 133 & 135 n.439; see also id. 134 ( The open Internet conditions we adopt today likewise are necessary to advance the public interest in innovation and investment.. The Commission cited section 316(a, among other licensing provisions of Title III of the Communications Act (the Act, see id. 133 nn. 427 & 430. Indeed, ordering clause 170 of the Order specifically identifies section 316 of the Act which by its terms only pertains to a Modification by [the] Commission of Construction Permits or Licenses, 47 U.S.C. 316 as a basis for the rules. On the merits, MetroPCS will contest whether section 316, as well as the other licensing provisions under Title III cited in the Order, provide any authority to impose the Internet access rules at issue. It also will contest the legality of the modified license conditions the Commission imposed under 2
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 3 Title III even if the agency could invoke these provisions. But it is the Commission s action in the Order that is relevant in determining appellate jurisdiction, and there is no doubt that the Commission has unequivocally asserted its section 316 authority in declaring the licenses of existing wireless broadband carriers to have been modified by the Order. Accordingly, the Order is appealable under section 402(b(5 of the Act, which grants this Court exclusive jurisdiction over an appeal of a Commission order by the holder of any station license which has been modified by the Commission. 47 U.S.C. 402(b(5; N. Am. Catholic Educ. Programming Found., Inc. v. FCC, 437 F.3d 1206, 1208 (D.C. Cir. 2006; Tribune Co. v. FCC, 133 F.3d 61, 66 n.4 (D.C. Cir. 1998; see also Functional Music, Inc. v. FCC, 274 F.2d 543, 547-48 (D.C. Cir. 1958 (holding that modification of licenses effected in rulemakings are appealable under Section 402(b(5. 2. The FCC does not contest the Court s jurisdiction under section 402(b(5; instead, it moves to dismiss the MetroPCS appeal solely on the ground that it is premature. The Order was released on December 23, 2010, but has not yet been published in the Federal Register. The FCC contends that no appeal is proper until the latter event of publication occurs. 3
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 4 An appeal under Section 402(b(5 shall be taken by filing a notice of appeal with the court within thirty days from the date upon which public notice is given of the date of the decision or order complained of. 47 U.S.C. 402(c. The FCC contends that the date of public notice of the Order is governed by Rule 1.4(b(1. Rule 1.4(b(1 provides that for all documents in notice and comment and non-notice and comment rulemaking proceedings required by the Administrative Procedure Act, 5 U.S.C. 552, 553, to be published in the Federal Register, the date of public notice is the date of publication in the Federal Register. 47 C.F.R. 1.4(b(1. However, in a Note to Rule 1.4(b(1, the Commission has created an express exception providing that [l]icensing and other adjudicatory decisions with respect to specific parties that may be associated with or contained in rulemaking documents are governed by the provisions of 1.4(b(2. Id., note to paragraph (b(1. Subsection 1.4(b(2 of the Commission s Rules in turn provides that the public notice date [f]or nonrulemaking documents released by the Commission or staff is the release date. Id. 1.4(b(2. Because the Commission issued a licensing decision[] within the meaning of the Note to Rule 1.4(b(1, MetroPCS filed its appeal within 30 days of the December 23, 2010 release date. 4
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 5 The Commission claims that the Note exempting licensing decisions from Rule 1.4(b(1 is not applicable because the rules adopted in the Order apply to all providers of broadband Internet access service, and were not issued with respect to specific parties, 47 C.F.R. 1.4(b(1, note. Motion 6. This argument does not withstand scrutiny. MetroPCS holds some wireless licenses issued by the FCC under Part 24 of the Commission rules governing Personal Communications Services ( PCS and some issued under Part 27 of the Commission rules governing Miscellaneous Wireless Services, which include Advanced Wireless Services ( AWS, and 700 MHz services. While MetroPCS does currently provide mobile broadband Internet access service over its licenses, there are PCS, AWS and 700 MHz licensees who have elected not to do so, and thus would not be subject to the new Net Neutrality or Open Internet rules imposed by the Order. 1 Put another way, the new rules purport to apply to only an identifiable subset of wireless licenses: those whose holders have opted to provide broadband Internet Access services or who elect to provide such services in the future. 2 1 For example, some carriers offer only wireless voice services that do not meet the Commission s definition of wireless broadband Internet access services. 2 The Commission seeks comfort in the fact that there are numerous Internet service providers, or ISPs, throughout the country and that, as a result, the Order cannot be viewed as addressing a small identifiable set of ISPs. Motion 6. But there is nothing in the Note to Rule 1.4(b(1 that requires that the number of specific parties be small. 5
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 6 Furthermore, there are many types of Title III licensees other than wireless licensees, such as television and radio broadcasters, whose licenses will also be unmodified. Thus, the FCC licensees affected by the modification in the Order are, contrary to the Commission s assertion, a specific subset of parties as among Title III license holders. The Commission maintains that the reference in the Note to licensing or other adjudicatory decisions means that only adjudicated licensing modifications (and not licensing modifications by rulemaking are subject to the exception. Motion 5-6. The most natural reading of the Note is that all licensing decisions and all other adjudicatory decisions (even if not related to licensing appearing in a rulemaking document are exempt from Rule 1.4(b(1. The phrase other adjudicatory decisions cannot be read to modify the word licensing ; the proper reading is licensing decisions and other adjudicatory decisions, not licensing adjudicatory decisions. The phrase other adjudicatory decisions reflects the fact that most licensing decisions are adjudications, but it cannot restrict the plain meaning of the unqualified term licensing. Thus, rulemakings are appealable upon Federal Register publication, except that licensing decisions and adjudications embodied in a rulemaking order are appealable upon the 6
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 7 order s release. Because the Order is a licensing decision, MetroPCS properly appealed it within 30 days of its release date. 3. At best, the Commission may claim that Rule 1.4(b(1 and the accompanying note are ambiguous. The Commission argues that [e]ven if the Court were to find that the Note to Rule 1.4(b(1 creates ambiguity, the interpretation set forth in the Motion is at the very least reasonable and therefore warrants deference. Motion n.2. But ambiguity is fatal to the Commission s motion. A motion to dismiss disputing the date of public notice should be denied when the FCC s reasonable interpretation is not obvious... upon careful reading of the Commission s regulations. Adams Telcom, Inc. v. FCC, 997 F.2d 955, 956-57 (D.C. Cir. 1993. Rule 1.4(b does not explicitly draw distinctions between licensing rulemakings and licensing adjudications, and certainly the Commission s current position is not obvious on the face of Rule 1.4(b. The Commission should not be allowed to stay silent on this issue and then seek advantage from the lack of clarity, either by moving to dismiss as premature appeals filed within the initial 30 day window or by moving to dismiss as untimely appeals filed later. As this court has wisely observed in the past, [t]he agency s interpretation is entitled to deference, but if it wishes to use that interpretation to cut off a party s rights, it must give full notice of that 7
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 8 interpretation. Adams Telcom, Inc., 997 F.2d at 957 (quoting Satellite Broadcasting Co. v. FCC, 824 F.2d 1, 4 (D.C. Cir. 1987. That especially should be the case when the Motion precedes the publishing of the notice, an event that is entirely within the Commission s control. 4. The Commission s Motion should thus be denied on the sole ground it raises, but this Court need not waste scarce judicial resources at this time deciding this motion. Notably, both MetroPCS and Verizon have made clear their respective intentions to promptly file further protective appeals as soon as the subject Order is published in the Federal Register. Notice of Appeal 4, n.1; Notice of Appeal at n.2, Verizon v. FCC, No. 11-1014 (D.C. Cir. Jan. 20, 2011. As a practical matter, those post-publication filings will render unnecessary any decision of the prematurity issue raised by the Commission on this motion. The Commission itself maintains that the second appeal filed after Federal Register publication will be timely. Motion 4. When two notices of appeal are filed for protective purposes, the Court has the ability to continue with the case, disposing of the appeal deemed superfluous after decision. See, e.g., Tidler v. Eli Lilly & Co., 824 F.2d 84, 87 n.3 (D.C. Cir. 1987. 8
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 9 This makes special sense if, as has been widely anticipated in the industry, the Commission initiates Federal Register publication expeditiously. Indeed, the Commission on February 9, 2011 published the information collection requirements and complaint proceeding portion of the Order in the Federal Register. The Commission should clarify for the Court how soon publication of the Order itself may follow. This Court should be wary, however, if the Commission is attempting to shield the Order from immediate judicial review and thus impair MetroPCS (and Verizon s statutory right to such review under Section 402(b(5 by delaying the Federal Register publication. The subject Order was released on December 23, 2010, meaning that seven weeks have passed without publication. This presents grave problems for MetroPCS, in particular, which is suffering immediate harm as a result of the Commission s action. The ink was barely dry on the Order when proponents of the Commission s net neutrality rules began launching attacks at the FCC against carriers, including MetroPCS, based upon it. See, e.g., Consumers Union, et al., Notice of Written Ex Parte Presentation, GN Docket No. 09-191; WC Docket No. 07-52 (Jan. 21, 2011; Free Press, et al., Notice of Ex Parte Presentation, GN Docket No. 09-191; WC Docket No. 07-52 (Jan. 10, 2011. Under these circumstances, it is important for the 9
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 10 appeal to proceed to a decision on the merits sooner rather than later, preferably on an expedited basis. 5. The Commission also asks that this Court delay the current deadline for the filing of the record in this case based on the suggestion that venue may not be in this Court. Motion 6. As earlier noted, the Commission s Motion does not affirmatively dispute that jurisdiction is proper under section 402(b(5, although it has cryptically hinted elsewhere that the Commission does not necessarily agree that the Open Internet Order is subject to challenge under section 402(b. Reply of the FCC in Support of its Motion To Dismiss and Motion to Defer Filing of the Record at 7, n.2, Verizon v. FCC, No. 11-1014 (D.C. Cir. Feb. 2, 2011 ( FCC Verizon Reply. This hide-the-ball approach in the Commission s own motion to dismiss for lack of jurisdiction, no less is untenable. If the Commission has any disagreement with the core claim of MetroPCS that section 402(b(5 is the proper basis for this appeal, it should have said so in the Motion and briefed the issue. It is incumbent upon a movant to brief all the jurisdictional defenses it may have in a single motion. The Commission has also suggested that the exclusive jurisdiction of this Court over section 402(b(5 should be decided by the court of appeals 10
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 11 to which the Judicial Panel on Multidistrict Litigation directs petitions for review of the Order to be transferred (which may or may not be this Court. See FCC Verizon Reply 5-7 & n.2 ( The issue [of whether jurisdiction is proper under section 402(b] is a matter that need be addressed, if at all, by the transferee court selected by a judicial lottery, and there is no need to brief the matter now.. That is untrue. As an initial matter, it is speculation whether other parties will file petitions for review in another court of appeals within 10 days of the publication of the Order in the Federal Register, thus triggering the lottery provisions of 28 U.S.C. 2112(a(1-(3. Even if they do, this Court may very well end up the transferee court. Furthermore, there are substantial questions as to whether an appeal that is subject to the exclusive jurisdiction of this Court is even subject to transfer under the lottery provisions of section 2112, which apply to petitions for review that are filed in at least two courts of appeals. 28 U.S.C. 2112(a(1. This reading, of course, suggests that two different courts of appeal would have jurisdiction, which is not the case for license modifications, which can only be brought in this Court. The Commission has relied upon Valley Vision, Inc. v. FCC, 383 F.2d 218 (D.C. Cir. 1967 (per curiam ( Valley Vision I, to argue that even section 402(b(5 appeals 11
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 12 are subject to transfer, but that decision does not aid the Commission. First, Valley Vision I applied to the prior version of section 2112, which authorized venue in the court of appeals in which a petition for review of an order was first filed, and is not precedent with regard to the lottery provisions of the amended section 2112. See id. at 219 (noting that Court would yield sua sponte to the Congressional intent that an administrative action be reviewed only by the Court of Appeals in which proceedings were first instituted. Second, Valley Vision I arose in a very different context. In that case, the same party filed a petition for review under section 402(a in the Ninth Circuit and then later an appeal under section 402(b in this Court. The Ninth Circuit had already exercised jurisdiction, issuing an injunction staying the agency order s effective date. This Court declared its belief that, because the order on review was a cease-and-desist order, the District of Columbia Circuit has exclusive jurisdiction to review the challenged order. Id. Nonetheless, in deference to 2112(a and the need for avoiding unseemly conflict, this Court transferred the section 402(b appeal to the Ninth Circuit without receding from our view that the case properly belongs in the District of Columbia Circuit. Id. The Ninth Circuit, informed of this Court s view, transferred the appeals back to this Court because of its exclusive jurisdiction. Valley Vision, Inc. v. FCC, 399 F.2d 12
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 13 511 (9th Cir. 1968 ( Valley Vision II. This case involves a different statutory scheme and no extraordinary circumstance of avoiding conflict with a sister court of appeals that has already exercised jurisdiction. 3 In short, there is no need for this Court to speculate as to the prospect of petitions for review filed by other parties in other courts or the propriety of transfer of 402(b(5 appeals under 28 U.S.C. 2112. The critical point regarding Valley Vision I for purposes of this motion is that, regardless of whether transfer is formally necessary under section 2112, this Court is the expositor of its own exclusive jurisdiction. The existence of section 402(b(5 jurisdiction will be central to proceedings that follow Federal Register publication. But because the FCC has not argued the jurisdictional question of appealability of the Order under section 402(b(5 in this 3 In an unpublished order, this Court did invoke Valley Vision to transfer section 402(b(5 appeals to the section 2112 transferee court in a case involving the current statute. See FCC Verizon Reply (citing Newspaper Association of America v. FCC, No. 08-1082 (D.C. Cir. May 29, 2008. But Newspaper Association is of limited precedential value (see D.C. Cir. R. 36(e(2, contains little analysis to guide this Court, and in any event involves different circumstances. In Newspaper Association, the order was published in the Federal Register on February 21, 2008, 73 Fed. Reg. 9481, and a number of parties thereafter filed petitions for review under section 402(a, and some filed both petitions under section 402(a and appeals under section 402(b. See, e.g., Newspaper Association of America v. FCC, Nos. 08-1082 & 08-1083 (D.C. Cir. Feb. 29, 2008; Morris Communications Company, LLC, Nos. 08-1099 & 08-1100 (D.C. Cir. Mar. 5, 2008. Nos. 08-1082 & 08-1083 (D.C. Cir. Feb. 29, 2008. Newspaper Association, even if viable precedent, provides no guidance in the circumstance here, where a section 402(b(5 appeal is pending and section 402(a petitions for review cannot even be filed because Federal Register publication is yet to occur.. 13
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 14 motion, this Court should exercise its discretion to defer resolution of the instant issue of prematurity under Rule 1.4 until a later time, rather than address this evanescent and practically meaningless question now. CONCLUSION MetroPCS s Notice of Appeal was timely filed under Rule 1.4, and any ambiguity in the provisions of that rule is fatal to the Commission s Motion to Dismiss. In any event, the Court need not address the prematurity issue at this time because it will soon be rendered irrelevant by publication of the Order in the Federal Register, and thus this Court should await the filing of MetroPCS s protective second appeal so as to avoid piecemeal disposition of jurisdictional questions. 14
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 15 Respectfully submitted, /s/ Stephen B. Kinnaird Carl W. Northrop Stephen B. Kinnaird Paul, Hastings, Janofsky & Walker LLP 875 15th Street, NW Washington, D.C. 20005 (202 551-1842 (phone (202 551-0242 (fax E-mail: stephenkinnaird@paulhastings.com Attorney for MetroPCS Communications, Inc. MetroPCS 700 MHz, LLC MetroPCS AWS, LLC MetroPCS California, LLC MetroPCS Florida, LLC MetroPCS Georgia, LLC MetroPCS Massachusetts, LLC MetroPCS Michigan, Inc. MetroPCS Networks California, LLC MetroPCS Networks Florida, LLC MetroPCS Texas, LLC MetroPCS Wireless, Inc. Dated February 10, 2011 LEGAL_US_E # 91717386.4 15
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 16 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT METROPCS COMMUNICATIONS, INC.; METROPCS 700 MHZ, LLC; METROPCS AWS, LLC; METROPCS CALIFORNIA, LLC; METROPCS FLORIDA, LLC; METROPCS GEORGIA, LLC; METROPCS MASSACHUSETTS, LLC; METROPCS MICHIGAN, INC.; METROPCS NETWORKS CALIFORNIA, LLC; METROPCS NETWORKS FLORIDA, LLC; METROPCS TEXAS, LLC; and METROPCS WIRELESS, INC. Appellants, v. Case No. 11-1016 FEDERAL COMMUNICATIONS COMMISSION and UNITED STATES OF AMERICA, Appellee. CERTIFICATE OF SERVICE I, Stephen B. Kinnaird, hereby certify that on February 10, 2011, I caused to be electronically filed the foregoing document with the Clerk of the Court for the United States Court of Appeals for the D.C. 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. I certify further that I have directed that copies of the foregoing document be sent by electronic mail to:
Case: 11-1016 Document: 1292714 Filed: 02/10/2011 Page: 17 Richard K. Welch Richard.Welch@fcc.gov Joel Marcus Joel.Marcus@fcc.gov Federal Communications Commission Office of the General Counsel 445 12th Street, S.W. Washington, DC 20554 Counsel for Federal Communications Commission Respectfully submitted, Dated February 10, 2011 /s/ Stephen B. Kinnaird Stephen B. Kinnaird Paul, Hastings, Janofsky & Walker LLP 875 15th Street NW Washington, D.C. 20005 (202 551-1842 (phone (202 551-0242 (fax stephenkinnaird@paulhastings.com (email Attorney for MetroPCS Communications, Inc. MetroPCS 700 MHz, LLC MetroPCS AWS, LLC MetroPCS California, LLC MetroPCS Florida, LLC MetroPCS Georgia, LLC MetroPCS Massachusetts, LLC MetroPCS Michigan, Inc. MetroPCS Networks California, LLC MetroPCS Networks Florida, LLC MetroPCS Texas, LLC MetroPCS Wireless, Inc.