Duke Seeks Leave for Deferred Appendix in 4th Circuit Petition for Review
Duke Energy seeks leave from the 4th U.S. Circuit Appeals Court to file a deferred appendix in its consolidated petition for review of the FCC’s Nov. 18 pole attachment order, said its motion Tuesday. The 4th Circuit Appeals Court docketed…
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as cross-appeals AT&T’s petition for review of the FCC’s order from the D.C. Circuit (docket 23-1096) with Duke’s petition for review in the 4th Circuit (docket 22-2220) (see 2301310040). Duke conferred with AT&T and the FCC, but due to the “unique nature” of the proceeding, “the parties are finding it difficult to forecast which portions of the record should be included in the joint appendix,” it said. The consolidated proceeding “requires staggered briefing on two, separate petitions for review that raise distinct legal challenges” to the FCC’s order, it said. Duke’s opening brief and joint appendix are due March 13, and AT&T’s opening brief and response are due April 24, with the FCC’s response to the briefs in both petitions due June 8. Duke “can’t determine at this time what portions of the record will be necessary to its response to AT&T’s opening brief,” and other parties “have echoed similar concerns” about their responses to Duke’s opening brief, it said. The “uncertainties” have Duke “concerned” that unless the 4th Circuit grants leave to file a deferred appendix, the joint appendix won’t conform to the court’s preference for a “selectively abridged record,” it said. All parties told Duke they either support or at least don’t oppose Duke’s motion for leave to file a deferred appendix, it said.