Courtroom Won’t Hold Everyone During Oral Argument of FCC’s USF/ICC Order, Clerk Says
The legal challenge to the FCC’s 2011 USF/intercarrier compensation order is likely to be so closely followed that some might find themselves facing closed doors if they try to attend oral argument in Denver next month. In a notice filed Thursday, the 10th U.S. Circuit Court of Appeals urged interested attorneys to stay home to “avoid the possibility of a costly disappointment.” The court also put on hold a challenge by Accipiter of an FCC order modifying implementation of the USF/ICC order, pending the outcome of the broader challenge.
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Court Clerk Elisabeth Shumaker walked through the math of a cramped courtroom. A total of 108 attorneys are representing groups on either side of the challenge. The designated courtroom -- the largest in the building -- accommodates 90 people, “with extra seating brought in and people sitting close together on the bench seats.” The court can’t provide overflow seating in another courtroom with audio piped in, as it did during last month’s net neutrality argument in Washington (CD Sept 10 p1) because the other three courtrooms will be in use, she said.
"We will reserve seating for those who are arguing,” the clerk said on behalf of the court. “But beyond that, when the courtroom is full, the doors will have to be closed. The best way to avoid the prospect of people showing up but being unable to attend is for the attorneys who are not presenting argument to not travel to Denver. We strongly urge all those who are considering travel just to hear the argument to reconsider.” Any attorneys intending to “try to attend the argument” must by Oct. 30 fill out a short form on the court’s website (http://bit.ly/1gwHBD4). Argument is set for Nov. 19 from 9 a.m. until 3:30 p.m.
Attorneys we spoke to said it’s unusual to see a notice like the one the 10th Circuit released. Before the net neutrality argument, some D.C. Circuit cases attracted such a big crowd that the court moved the argument to the en banc courtroom, said former FCC General Counsel Christopher Wright, now of Wiltshire Grannis. One involved the C-block auction in the mid-'90s, and the other was a big interconnection case around 2002. During an argument in the ‘90s involving the FCC’s affirmative action rules, “someone who was standing fainted while I was at the podium,” Wright said. “I don’t think they allow standing anymore.”
"The closest comparisons I can think of in terms of number of parties and issues within the last 20 years are the appeals that were heard in the 8th Circuit and the D.C. Circuit regarding implementation of the unbundling requirements of the 1996 Telecom Act,” said Genny Morelli, president of the Independent Telephone and Telecommunications Alliance. The D.C. Circuit has more practical experience than perhaps all the other federal appeals courts with handling the logistics of complicated communications sector appeals, she said. “The 10th Circuit appears to be doing its best within its capabilities to mitigate confusion and disgruntlement on oral argument day.”
"The USF/ICC appeals are not only among the most complex ever to arise from FCC action, but they could end up being among the most byzantine in administrative law history in terms of how they are being handled procedurally,” said ex-FCC Commissioner Robert McDowell, now a visiting scholar at the Hudson Institute. “It will be extremely difficult for the 10th Circuit to conduct adequate ‘air traffic control’ let alone resolve the myriad disputes clearly and concisely. No matter how adept the court may be, many noses will be knocked out of joint both procedurally and substantively."
Also Thursday, the court declined to set a briefing schedule (http://bit.ly/1gwKwvN) for an Accipiter challenge of an FCC order modifying some aspects of the quantile regression formula used to determine high-cost loop support (HCLS) to rate-of-return carriers. The court agreed with the FCC, which had asked the court to put Accipiter’s case on hold until the broader challenge was decided. “The Court should hold this case in abeyance consistent with its decision to abate the National Telecommunications Cooperative Association case,” the agency said. In denying an NTCA challenge last month, the 10th Circuit said it would be “an unusual case in which this court would put review involving denial of a motion for reconsideration ahead of the review of the underlying order from which reconsideration was sought.” The validity of the underlying order should be established first, the court said then.
Accipiter is one of the few telcos that was granted a waiver of the rules limiting per-line support to $250 per month, and a waiver of the HCLS support benchmarks rule limiting reimbursable capital and operating expenses (CD Feb 1 p5). The FCC Wireline Bureau granted that waiver through the end of 2014.