10th Circuit Judges Have Telecom Experience, Could Be Good for CAF Challengers, Attorneys Say

Briscoe was on the 2005 panel involving Qwest, which found unlawful FCC non-rural USF rules. They addressed companies that served high-cost areas with too many lines to be considered “rural” by the statutory definition. “We hold that the FCC relied on an erroneous, or incomplete, construction of 47 U.S.C. Section 254 in defining statutory terms and crafting the funding mechanism for non-rural, high-cost support,” the court wrote. “That construction of the statute is fatal to the cost support mechanism at issue in this case."

The petitioners’ joint USF brief repeatedly cited the 2005 case. The 10th Circuit was “pretty tight on the FCC in terms of its ability to do what it wants without regard to what the statute said,” NASUCA Counsel David Bergmann told us. “I would hope that that view would bode well for the petitioners here, because most of our arguments are that the FCC did what it wanted, without regard to what the statute says.” Another industry attorney said that petitioners “may be pleased” by the inclusion of Briscoe, given her history. An FCC spokesman declined to comment.

Holmes drafted the 2012 opinion that upheld the FCC decision not to grant Qwest a forbearance petition for the Phoenix metropolitan statistical area (CD Aug 7/12 p13). “Our task here is a narrow one,” Holmes wrote. “We are not a ‘panel of referees on a professional economics journal,’ but a ‘panel of generalist judges obliged to defer to a reasonable judgment by an agency acting pursuant to congressionally delegated authority.'"

Although that language ostensibly shows a deferent judge, Bergmann said it could be good news for the petitioners. The FCC was acting “pretty clearly within its statutory wheel house” on a matter that was explicitly given to the FCC for discretion, Bergmann said. In contrast, petitioners in the current case argue that the FCC didn’t act consistently with its statutory discretion, he said. Bergmann gets five minutes Tuesday afternoon as oral argument draws to a close to convince the judges the FCC lacked authority to adopt its Access Recovery Charge.

Independent Telephone and Telecommunications Alliance President Genny Morelli thinks that, if anything, the Qwest forbearance decision cuts the other way. Morelli was involved in that dispute, and helped convince the FCC to make the decision it did. “Based on my knowledge of that case, and what the rationale was, I don’t know that you can draw any conclusions or even any inclinations from one case,” she said. “The court was very deferential to the FCC with respect to the agency’s expertise, and the judgments that the agency would make in the exercise of its expertise in the communications area. So if there were a pattern along those lines, I would say it bodes well for the FCC, but that’s one case and one judge."

ITTA is an intervenor challenging the FCC’s mandatory intercarrier compensation glide path to bill-and-keep. Morelli said she’s glad to see that the Denver panel has had exposure to FCC and communications issues. With telecom issues being so complex, it would be even more difficult for the three-judge panel to parse their way through it if they lacked that familiarity, she said. She finds it “hard to believe” that judicial panels are chosen randomly. “It’s funny how that randomness always seems to generate the same judges,” she said.

"I don’t think we have a large enough sample of FCC cases to say whether they are more or less deferential to the FCC than a hypothetical average federal appellate judge,” said a telecom attorney who has appeared before Briscoe and Holmes. Such a hypothetical judge is supposed to be “somewhat deferential,” the attorney said, deciding cases based on whether the agency acted in an “arbitrary and capricious” manner. “Judges aren’t supposed to overturn decisions just because they wouldn’t have made them if they were running an agency. But some judges have more trouble than others in seeing that some things they wouldn’t have done are nevertheless not arbitrary and capricious.” The same holds true when reviewing an agency’s construction of a statute, the attorney said. “Judges are supposed to uphold ‘permissible’ interpretations even if they might think a better interpretation is preferable."

The judicial panel was disclosed last week, but internally it’s usually known much earlier, said an industry attorney. “What we don’t know -- and probably won’t know until the opinion is issued -- is which of the three will be writing the decision,” the attorney said. “Sometimes you can get a clue based on which asks the most penetrating questions, but that is not a certain way to tell. And sometimes the one chosen to write gets outvoted when they meet and someone else writes the ultimate opinion. When that happens, the initial opinion may or may not turn into a dissent or partial concurrence."

The other judge on the panel is Robert Bacharach, confirmed this year. Attorneys said it’s tough to predict Bacharach’s proclivities because he’s new to the bench and has no appellate telecom history. Before becoming a federal appellate judge, Bacharach was a U.S. magistrate judge in Oklahoma. Oral argument is scheduled from 9 a.m. to 3:40 p.m. MST Tuesday, and could go longer if the judges have additional questions, the court clerk said.