UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT * * * MOTION OR REQUEST · PDF file · 2013-11-08In support of this Motion or Request, Allband states: ... motion or request for

- 1 -

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

* * * _______________________________ ) ) IN RE: FCC 11-161 ) No. 11-9900 ) _______________________________)

MOTION OR REQUEST OF ALLBAND COMMUNICATIONS

COOPERATIVE TO TAKE JUDICIAL NOTICE (Revised)

Pursuant to the Federal Rules of Appellate Procedure, Rule 27, and the

Federal Rules of Evidence, Rule 201, and the March 13, 2012 “Order Governing

Motion Practice in the Consolidated Proceedings” and the Court’s November 7,

2013 Order, Allband Communications Cooperative (Allband) files this Motion or

Request to Take Judicial Notice (Revised)1 of certain matters appearing on the

internet website applicable to the Oversight and Government Reform Committee

of the U.S. Congress, including in particular the information described in

1 This Motion or Request is amended to conform with the Court’s March 13, 2012 and November 7, 2013 Orders, but is otherwise substantively the same as the Motion or Request filed by Allband on November 6, 2013; the Attachments to this Motion and Request remain the same except for the re-dated divider cover sheets separating each of the attachments listed in paragraph 3 of this Motion and Request.

Appellate Case: 11-9900 Document: 01019154404 Date Filed: 11/07/2013 Page: 1

- 2 -

paragraph 3 of this Motion or Request and attached hereto. In support of this

Motion or Request, Allband states:

1. The record on appeal has been filed, although other parties including

principally the Respondent Federal Communications Commission (FCC) have

filed several documents described as supplemental authority, comprising

subsequent orders of Respondent FCC.

2. Allband in this case has raised various issues, including assertions that

the FCC’s Order herein, as applied to Allband, comprises a violation of Due

Process and constitutes in essence an unconstitutional Bill of Attainder. Allband

has also asserted that the FCC’s Order concerning Universal Service Fund issues,

as applied to Allband, arises from an investigative inquiry by a Congressional

Committee having oversight authority over the FCC that specifically targeted in

significant part a small group of only ten (10) identified small entities, including

Allband. This Motion or Request thus relates to this Court’s de novo jurisdiction

to review and rule upon Allband’s constitutional issues, as opposed to matters to be

decided by the agency, the FCC.

3. Allband requests the Court to take judicial notice of the specific

information derived via the internet from the cited Congressional Committee

website, which are appended as attachments to this Motion or Request as follows:


- 3 -

Attachment A: A July 28, 2008 announcement by the U.S. Congress Committee entitled “Chairman Waxman Requests Information on Billions in Universal Service Fund Subsidies” and listing associated documents, links, and related stories.

Attachment A-1: A July 28, 2008 memorandum from Committee Chairman Waxman to the committee regarding “Universal Service Fund High Cost Program Subsidies”

Attachment A-2: The undated letter from FCC Chairman Kevin J. Martin, to Committee Chairman Waxman, with attached information and data in response to Committee Chairman Waxman’s June 9, 2008 letter regarding the “universal service high-cost program,” obtained from the Committee’s link entitled “FCC Summary of USF Subsidies,” which includes Part 3 entitled “Study Areas with the Highest Disbursements per Line in 2007” listing ten (10) small companies including Allband.

Attachment A-3: A July 28, 2008 letter from the Committee Chairman to Adak Telephone Utility, which is found under the Committee’s link entitled “Example of Letter to Top Per-Line Recipients”; Exhibit A-3 is the letter that the Congressional Committee sent to the ten (10) small companies in the nation receiving the highest per-line support from the Universal Service Fund.

Attachment A-4: A July 28, 2008 letter from Committee Chairman Waxman to AT&T taken from the Committee’s link entitled “Example of Letter to Top Recipients.”

Attachment B: The Congressional Committee’s Inquiry letter sent directly to Allband, which is virtually identical to the sample letter to Adak Telephone Utility shown on the Congressional Committee’s website (attached as Attachment A-3, described above).


- 4 -

The Congressional inquiry letter to Allband (Attachment B) demonstrates

the extensive information requested of Allband, only months after the installation

of its wholly new network plant designed to serve extensive portions of four (4)

counties of Michigan which never before had been served by any other

communications company.

4. Rule 201 of the Federal Rules of Evidence states in relevant part:

Rule 201. Judicial Notice of Adjudicative Facts (a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact. (b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

(c) Taking Notice. The court: (1) may take judicial notice on its own; or (2) must take judicial notice if a party requests it and the court is supplied with the necessary information.

(d) Timing. The court may take judicial notice at any stage of the proceeding. (e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.


- 5 -

5. This Court has recently taken judicial notice of information at the

appellate stage. New Mexico, ex rel Richardson v Bureau of Land Management,

565 F.3d 683, 702 (fns 21, 22), 719 (fn 48) (10th Cir. 2009). Under Fed. R. Evid.

201 and this Court’s decisions, “[j]udicial notice may be taken at any time,

including on appeal.” United States v Burch, 169 F.3d 666, 671 (10th Cir. 1999)

(citing Mills v Denver Tramway Corp., 155 F.2d 808, 812 (10th Cir. 1946)).

Under Fed. R. Evid. 201(d) “the Court may take judicial notice at any stage of the

proceeding”. Under Fed. R. Evid 201(b), the Court “may judicially notice a fact

that is not subject to reasonable dispute because it: ‘(1) is generally known within

the trial court’s territorial jurisdiction, or (2) can be accurately and readily

determined from sources whose accuracy cannot reasonably be questioned.’”

Under Fed. R. Evid. 201(c)(1) and (2), the Court “may take judicial notice on its

own” or “must take judicial notice if a party requests it and the Court is supplied

with the necessary information.”

6. Allband asserts that the factual information submitted pursuant to this

motion or request for judicial notice, including factual responses of the FCC to the

Congressional inquiry, comprise unquestionably public records meeting the

requirements of Rule 201, which support the adjudicative facts asserted by Allband

in this case, and does not comprise a request to take judicial notice of “legislative

facts.” The information submitted with this motion or request illustrates and


- 6 -

supports Allband’s arguments herein, and provides the necessary context

supporting Allband’s arguments in this case.

STATEMENT OF LIAISON COUNSEL POSITIONS

7. On this date, undersigned counsel for Allband obtained statements of

position from Liaison counsel for Petitioners and Liaison Counsel for Respondents

concerning this Motion and Request. Upon issuance of this Court’s Order this

date, Liaison counsel for Petitioners sua sponte sent Allband’s undersigned counsel

an e-mail which included his Statement of Position. On this date, undersigned

counsel for Allband contacted Liaison counsel for Respondents who promptly

responded by e-mail. These responses are as follows:

Statement of Liaison Counsel for Petitioners - Mr. James Ramsey: Though I’ve not done a survey, I do not believe any petitioners will oppose this motion.”2

Statement of Liaison Counsel for Respondents - Mr. James Carr: The respondents, the FCC and the United States, do not oppose the motion. Although I have not consulted with our supporting intervenors, I do not anticipate that any of them will oppose the motion.3

2 E-mail from Mr. Ramsey, November 7, 2013, 11:28 am. 3 E-mail from Mr. Carr, November 7, 2013, 1:09 pm.


- 7 -

RELIEF REQUESTED

WHEREFORE, Allband requests this Honorable Court to grant this Motion

or Request to Take Judicial Notice (Revised) of the factual information and

documents appended to this motion.

Dated: November 7, 2013

Respectfully submitted, /s/ Don L. Keskey Don L. Keskey (P23003) Public Law Resource Center PLLC 139 W. Lake Lansing Road, Suite 210 East Lansing, MI 48823 Telephone: (517) 999-7572 E-mail: [email protected] Attorney for Allband Communications Cooperative


- 8 -

CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(5) & RULE 32(a)(6)

This brief complies with the requirements of this Court’s March 13, 2012

Order because it contains 1,279 words - which is less than the 5,000 words

allocated and otherwise complies with FRAP 32(a)(5) & (6) because it uses a

proportionally spaced face in 14 Point using Microsoft Word’s Times New Roman

font.


/s/ Don L. Keskey Don L. Keskey (P23003) Public Law Resource Center PLLC 139 W. Lake Lansing Road, Suite 210 East Lansing, MI 48823 Telephone: (517) 999-7572 E-mail: [email protected] Attorney for Allband Communications Cooperative


CERTIFICATE OF COMPLIANCE

I, Don L. Keskey, hereby certify that: 1. This filing complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and 10th Cir. R. 32(a) and the type style requirements of Fed. R. App. P. 32(a)(6) because this filing has been prepared in a proportionally spaced typeface using Microsoft Word, 14-point Times New Roman font. 2. No privacy redactions were required in this document. 3. A virus scan of the PDF version of the attached documents, which are being submitted in this case via the Court’s CM/ECF filing system, has been performed. The documents have been scanned with AVG Anti-virus software from servers at our service provider, Madeira Data Center, which were last updated October 9, 2013 at 8:30 a.m., and according to the program the file is free of viruses. Dated: November 7, 2013

/s/ Don L. Keskey Don L. Keskey (P23003) Public Law Resource Center PLLC 139 W. Lake Lansing Road, Suite 210 East Lansing, MI 48823-8525 Telephone: (517) 999-7572 E-mail: [email protected] Attorney for Allband Communications Cooperative


UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

* * * _______________________________ ) ) IN RE: FCC 11-161 ) No. 11-9900 ) _______________________________)

CERTIFICATE OF SERVICE

I hereby certify that on November 7, 2013, I caused the foregoing Motion or

Request of Allband Communications Cooperative to Take Judicial Notice

(Revised), to be filed using the Court’s CM/ECF system.

I further certify that the foregoing documents were furnished through ECF

electronic service to all parties in this case through a registered CM/ECF user.

This document will be available for viewing and downloading on the CM/ECF

system.


Respectfully submitted, /s/ Don L. Keskey Don L. Keskey (P23003) Public Law Resource Center PLLC 139 W. Lake Lansing Road, Suite 210 East Lansing, MI 48823-8525 Telephone: (517) 999-7572 E-mail: [email protected] Attorney for Allband Communications Cooperative


























































































Documents

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT * * * MOTION OR REQUEST · PDF file · 2013-11-08In support of this Motion or Request, Allband states: ... motion or request for