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]

Download PDF
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) 3 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. 4 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 5 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 .

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?