Verizon v. FCC, et al
Filing
2
PETITION FOR REVIEW filed [1332904] by Verizon of a decision by federal agency [Service Date: 09/30/2011 ]
Disclosure Statement: Attached; Certificate of Parties: Not Applicable to this Filing [11-1356]
VERIZON,
Petitioner,
v.
Case No. 11-- - - - -
FEDERAL COMMUNICATIONS
COMMISSION,
and UNITED STATES OF AMERICA,
Respondents.
PROTECTIVE PETITION FOR REVIEW
Pursuant to 47 U.S.C. § 402(a), 28 U.S.C. §§ 2342(1) and 2344, and Rule
15(a) of the Federal Rules of Appellate Procedure, Verizon 1 hereby petitions the
Court for review of the final order of the Federal Communications Commission
("FCC" or "Commission") captioned In the Matter ofPreserving the Open
Internet; Broadband Industry Practices, Report and Order, GN Docket No. 09191, WC Docket No. 07-52 (reI. Dec. 23,2010) ("Order"). The Order was
published in the Federal Register on September 23,2011. 76 Fed. Reg. 59192. A
copy of the full text of the Order is attached as Exhibit---A-.- - - - - - - - - - - -
The Verizon companies participating in this filing are Cellco Partnership,
d/b/a Verizon Wireless, and the regulated, wholly-owned subsidiaries of Verizon
Communications Inc.
Verizon is simultaneously filing a Notice of Appeal of the Order pursuant to
47 U.S.C. § 402(b) and (c) and Rule 15(a) of the Federal Rules of Appellate
Procedure. As explained in the Notice of Appeal and below, a Notice of Appeal
under Section 402(b)(5) is the proper vehicle to challenge the Order. Nonetheless,
and in the alternative, Verizon files this Protective Petition for Review under
Section 402(a) in an abundance of caution.
In the Order, the FCC formally adopts rules that regulate the broadband
Internet access services offered by wireless and wireline providers. The Order
directly responds to this Court's decision in Corneast Corp. v. FCC, 600 F.3d 642
(2010). In Corneast, this Court previously held that the FCC had failed to justify
its exercise of authority over the broadband Internet access services at issue in that
case. Id. at 644, 661. In the Order on review here, the FCC responds to the
Court's decision and again attempts to justify its assertion of regulatory authority
over broadband Internet access services. See Order ~~ 42, 118, 122 & n.380; ide
~~
115-37.
This Court possesses exclusive jurisdiction over Verizon's challenge to the
Order because Verizon "hold[s]" wireless spectrum "license[s] which ha[ve] been
modified ... by the Commission." 47 U.S.C. § 402(b)(5). In the Order, the
Commission expressly relied on its claimed authority to "change the license ...
terms," Order ~ 133, and "to impose new requirements on existing licenses beyond
2
those that were in place at the time of grant," id.
~
compliance with the new rules adopted therein, id.
135, in order to mandate
~~
93-106. The Order thus
"modified" Verizon' s licenses and is subj ect to appeal under Section 402(b)(5).
See, e.g., 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)).
Moreover, as this Court has explained, "the provisions for judicial review
contained in §§ 402(a) and 402(b) are mutually exclusive, so that a claim directed
to the same matters may be brought only under one of the two provisions,"
Tribune Co. v. FCC, 133 F .3d 61, 66 n.4 (D.C. Cir. 1998) (internal citations and
quotation marks omitted); see also N. Am. Catholic Educ. Programming Found.,
Inc. v. FCC, 437 F.3d 1206, 1208 (D.C. Cir. 2006), and Commission orders are
challengeable only "as an inseparable whole," id. at 1210; see also Rhode Island
Television Corp. v. FCC, 320 F.2d 762, 766 (D.C. Cir. 1963) (explaining that "a
given order may not be reviewed in two separate cases"). Further, "§ 402(a) is a
residual category," such that jurisdiction exists under that provision "only if §
402(b) does not apply." WHDH, Inc. v. United States, 457 F.2d 559,560-61 (1st
Cir. 1972) (emphasis in original); see also N. Am. Catholic, 437 F.3d at 1208
("Section 402(b) provides for appeals of FCC orders in nine enumerated situations,
including licensing. For all other final orders of the Commission, § 402(a)
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provides ... review .... " (emphasis added». Thus, jurisdiction to review
Verizon's challenge to the entire Order lies exclusively with this Court under
Section 402(b )(5).
Nonetheless, as noted above, Verizon files this alternative Protective Petition
for Review under Section 402(a) in an abundance of caution. Verizon, which
participated in the proceeding below, is a provider of both wireline and wireless
broadband Internet access services subject to the regulations adopted by the Order,
and it holds licenses that were modified by the Order. Verizon thus is aggrieved
by the Order and possesses standing to challenge it.
Verizon seeks relief on the grounds that the Order: (1) is in excess of the
Commission's statutory authority; (2) is arbitrary, capricious, and an abuse of
discretion within the meaning of the Administrative Procedure Act; (3) is contrary
to constitutional right; and (4) is otherwise contrary to law.
Accordingly, Verizon respectfully requests that this Court hold unlawful,
vacate, enjoin, and set aside the Order, and provide such additional relief as may
be appropriate.
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Respectfully submitted,
By·~~~~~~~_____
Helgi.
lker*
Eve Klindera Reed
William S. Consovoy
Brett A. Shumate
Michael E. Glover
Edward Shakin
William H. Johnson
1320 North Courthouse Road
9th Floor
Arlington, VA 22201
TEL: (703) 351-3060
FAX: (703) 351-3670
WILEY REIN LLP
1776 K Street, NW
Washington, DC 20006
TEL: (202) 719-7000
FAX: (202) 719-7049
John T. Scott, III
William D. Wallace
1300 I Street, NW
Suite 400 West
Washington, DC 20005
TEL: (202) 589-3770
FAX: (202) 598-3750
Samir C. Jain
WILMER CUTLER PICKERING
HALE AND DORR LLP
1875 Pennsylvania Ave., NW
Washington, DC 20006
TEL: (202) 663-6083
FAX: (202) 663-6363
Attorneys for Verizon and Verizon
Wireless
Walter E. Dellinger
Brianne Gorod
O'MELVENY & MYERS LLP
1625 Eye Street, NW
Washington, DC 20006
TEL: (202) 383-5300
FAX: (202) 383-5414
Dated:
* Counsel ofRecord
September 30, 2011
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CERTIFICATE OF SERVICE
I, Brett A. Shumate, hereby certify that on September 30, 2011, I caused one
copy of the foregoing Protective Petition for Review and Corporate Disclosure
Statement to be delivered by hand and electronic mail to:
Austin Schlick
Federal Communications Commission
Office of the General Counsel
Room 8-A741
445 12th Street, S.W.
Washington, DC 20554
Austin.Schlick@fcc.gov
Catherine G.O'Sullivan
U.S. Department of Justice
Antitrust Division!Appellate Division
950 Pennsylvania Avenue, N~W.
Room 3224
Washington, DC 20530-0001
Catherine.O'Sullivan@usdoj.gov
Counsel for the Federal Communications Counsel for the United States ofAmerica
Commission
~f!~humate
Brett
.
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