Advocates Prepare to Squeeze Complex USF/ICC Court Challenge into a Few Minutes Each

Almost two years to the day after the FCC passed its Connect America Fund order, which rewrote the rules of the $4.5 billion fund and set intercarrier compensation on a path toward bill-and-keep, the 10th U.S. Circuit Court of Appeals will spend several hours questioning its legality. At the clerk’s request, NARUC’s Brad Ramsay helped set the topics and timing of the petitioners’ oral argument -- and squeeze it all into no more than 120 minutes. “This has been an unusual experience,” Ramsay told the court. “It was difficult to feel like I was being fair to all the Petitioners.”

Fifteen lawyers representing scores of challengers -- some of which are associations with hundreds of member companies -- will have between five and 20 minutes each to direct the judges to the most compelling points from the volley of legal briefs filed since late last year. Even the court acknowledged not everyone would be able to discuss every issue important to them. “Choices have to be made,” clerk Elisabeth Shumaker said in a September filing. Fear not, she said: “Those topics and issues that do not find a place on the oral argument agenda are no less important in the eyes of the court than those that do."

The FCC will also get 120 minutes total to respond to the arguments. Its attorneys did not respond to requests for comment; an agency spokesman told us there would be none. Several attorneys for the petitioners also declined to comment, lest they give away too much of their strategy and advantage the other side. Even the normally loquacious Ramsay didn’t want to elaborate on what he plans to tell the court. “That just makes it easy for Richard Welch -- who, by the way, doesn’t need any help,” Ramsay said. Welch will be responding to the intercarrier compensation issues for the FCC. Attorneys Jim Carr and Maureen Flood will argue for the FCC on other issues, including its new USF rules.

An order released Wednesday accepted Ramsay’s schedule with only a slight change in the timing, moving Reiter’s session from the morning to the afternoon, immediately preceding an argument that the FCC had no authority to adopt the Access Recovery Charge, intended to mitigate the effect of reduced intercarrier compensation revenues. The court also reserved the right to “ask questions or invite additional discussion about the various subjects that were argued over the course of the day,” Shumaker said. “The parties should be prepared to remain throughout the day in order to possibly respond to questions or to invitations to address specific issues that the court might find helpful following the conclusion of the scheduled argument time."

"The idea that they may ask for additional (and unspecified) arguments at the end of the day is a new one,” Ramsay told us by email. It means all the attorneys have to stay “fresh,” he said, “and no-one -- if they are smart -- can leave any part of the argument,” so as to have “context” on any additional request argumentation. At six hours minimum, “it is going to be a very very long day,” Ramsay said.

Six hours will be a challenge for everyone, said Russell Blau of Bingham McCutchen, who represents the National Telecommunications Cooperative Association. Attorneys challenging the rules will have to be most active only during the relatively short time they're arguing, he said. FCC attorneys are facing a greater “stamina issue,” as they're each facing a two-hour window in which they'll have to be “all revved up.” And the judges “have to be on their game the whole time,” he said.

"I've been involved in complicated cases like this in oral argument before,” Reiter told us. “It’s always a challenge.” With so many issues discussed in one day of oral argument, it’s hard for the parties to draw the judges’ attention to the issues they care about, for the FCC to respond to legal attacks from all fronts, and “for the judges to keep straight what issues they're talking about,” he said. Reiter is confident: His seven minutes are an eternity compared to when he represented Brand X a decade ago. “I had four minutes in the 9th Circuit and I won!”

The key is to anticipate the judges’ questions, say attorneys we interviewed. Then try to pivot to the points the client wants to emphasize. The main function is not to simply stand up, give a speech for five minutes, and then sit down, said McCollough. “If you ever give an argument and you're not interrupted … then you've got a problem, because you haven’t stoked any interest.” Whether an advocate has five or 15 minutes, “you're going to lose the court within the first three minutes if you don’t catch their attention,” he said. It’s kind of like an elevator pitch, he said. “I do not have it memorized because it continually changes, depending on which elevator I'm on and whether it’s going up or down."

Like most of the attorneys we spoke to, David Bergmann has been holding moot courts to prepare. Bergman, counsel for the National Association of State Utility Consumer Advocates, is arguing against the Access Recovery Charge. Given that NASUCA’s members are spread out across the country, it’s been a “logistical nightmare,” he said. Last week a bunch of lawyers at the Ohio Consumers’ Counsel “very kindly volunteered to be guinea pigs.” Bergman will have five minutes to convince the judges the FCC lacked authority to adopt the charge. NASUCA plans one more moot before the real thing. “It’s a process of refining the argument,” he said, “and just trying to keep it simple and clear for judges for whom this is one of many, many different issues that they have to address over the course of a year."

As a generalist court that doesn’t handle nearly as many administrative law issues as does the D.C. Circuit, the Denver court will be deciphering an enormously complex set of issues, said the attorneys challenging the rules. They hope that complexity won’t favor the FCC, which the court could simply defer to as the expert agency. “Complexity would ordinarily favor the FCC,” said Ramsay. “But not in this case because what the FCC has done is so obviously inconsistent with the statute and prevailing precedent."

Complexity favoring the expert agency is “always a concern in cases of administrative appeals,” said Blau. “There’s always a tendency of judges to defer to the quote unquote expert agency.” It’s true with every single appeal, Reiter agreed: “The agency always starts with kind of a presumption that its actions were regular.” The FCC definitely has broad authority, said Bergmann -- but case law “does require it to be grounded somewhere in the statute."

"The complexity of the case should not give the FCC an advantage, or cause the court to defer to the agency, because the FCC was clearly without jurisdiction either to direct USF support to broadband or to regulate broadband service providers,” said Russell Lukas of Lukas, Nace, who’s got eight minutes to walk the court through arguments on the importance of competitive neutrality in USF rules. The court need not even get to all the substantive issues if it finds as a threshold matter that the FCC lacked jurisdiction, he said.

Appellate judges are good at sorting through arcane issues, said McCollough. That the judges are generalists is a good thing, he said: “They bring common sense to this.” It’s a good way to cut through the arguments of those in the telecom bar, who tend to “speak in tongues,” he said. “We aren’t very good at parties.”