Sheer Number of Petitioners Hurt Challenge of USF/ICC Order, Attorneys Say
Plaintiffs who unsuccessfully contested the FCC 2011 USF/intercarrier compensation order (http://1.usa.gov/1r18uaa) (CD May 27 p1) before the 10th U.S. Circuit Court of Appeals were hurt by the sheer number of interests in the case, said attorneys involved in the case. Plaintiffs also were hindered by the court’s questionable decisions and the case’s complexity, they said Tuesday night at an FCBA continuing legal education seminar.
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That the unanimous decision was so one-sided surprised even FCC Deputy Associate General Counsel Richard Welch, one of the agency’s attorneys in the case. “I was as stunned as anyone else,” but “judicial review is like a box of chocolates. You never know what you're going to get,” he said. The FCC prevailed because, “it was a very strong order, a very well written, well reasoned order,” Welch said. “I've defended a lot of FCC decisions of, how should I put it, varying quality.”
Also helping the agency was that the order, conditioning the receipt of USF money on the promise of broadband buildout, was trying to accomplish a “legitimate public good -- pushing broadband through America,” Welch said. Judges were comfortable with the goal, he said. If they weren’t, “it wouldn’t have turned out the way it did,” Welch said. That was echoed by Lukas, Nace wireless lawyer David LaFuria, who represented Cellular South in the case. Stopping an order intended to deploy broadband “would have taken some stomach” he said.
Despite Supreme Court Justice Ruth Bader Ginsburg’s advice to “strike few blows, but strike at the heart,” Welch said the 31 consolidated petitions didn’t strike just a few blows. “They struck 80 blows.” It was inevitable that a case involving a mammoth order would involve so many interests that it was impossible for plaintiffs to condense their arguments, he said. That gave the FCC a “gigantic advantage” in that it was not “saddled by competing voices,” said telecom lawyer Earl Comstock of Eckert Seamans. While not listed among the attorneys in the case, his firm represented Core Communications, according to the decision.
"It was an abdication of the judicial role to be a check on arbitrary judicial action,” said Pennsylvania Public Utility Commissioner James Cawley, who filed an amicus brief for the state members of the Federal-State Joint Board on Universal Service on behalf of the petitioners. The PUC was also a petitioner in the case. A court-imposed word limit on briefs meant the petitioners “were not allowed to explain themselves,” he said: Adding “insult to injury,” the court in its decision said the petitioners did not back up their arguments. “A lot of good ideas were left on the cutting room floor,” said NARUC General Counsel Brad Ramsay, another attorney in the case.