In the 
UNITED STATES COURT OF APPEALS 
FOR THE TENTH CIRCUIT 
 
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SORENSON COMMUNICATIONS, INC., ) 
 Petitioner )   
 v.   ) Nos. 08-9503 
  ) 08-9507 
FEDERAL COMMUNICATIONS COMMISSION ) 08-9545 
   and UNITED STATES OF AMERICA, )  
 Respondents 
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SUPPLEMENTAL OPPOSITION OF FEDERAL 
COMMUNICATIONS COMMISSION TO PETITIONER 
SORENSONS CORRECTED MOTION FOR STAY 
Respondent Federal Communications Commission opposes the corrected 
motion for stay filed by petitioner Sorenson Communications, Inc. on September 
23, 2008.  
BACKGROUND 
In 2007 and 2008, the Commission released orders that, in relevant part, 
interpret Commission regulations limiting the use of consumer information that 
Sorenson and other companies obtain solely because of their participation in a 
federal program  Telecommunications Relay Services (TRS)  that provides 
telecommunications services for persons with hearing and speech disabilities, as 
well as the use of federal money they receive in order to provide such services. 
Telecommunications Relay Services, 22 FCC Rcd 20140 (2007) (2007 Declaratory 
Ruling); Telecommunications Relay Services, 23 FCC Rcd (2008) (2008 Declara-
tory Ruling).  
 2
Sorenson filed petitions for review of both orders and, on July 25, asked the 
Court for a stay of the relevant portions of the orders. The Commission filed its 
opposition on August 19. On September 19, the Court denied Sorensons stay 
request because it did not include mandatory showings specified in the Courts 
rules, namely the bases for the agencys and the Courts jurisdiction. See Sorenson 
Communications v. FCC, No. 08-9503 (and consolidated cases), Order (Sept. 19, 
2008) (citing 10th Cir. R. 8.1(A) and 10th Cir. R. 18.1). On September 23, Soren-
son sought leave to file a corrected motion for stay, which the Court granted on 
October 7. The Court, at the same time, granted the Commissions request that it 
have an opportunity to update its opposition to the stay motion. 
In the meantime, briefing on the merits of the case nearly has been com-
pleted. Sorenson and GoAmerica, Inc. (another petitioner) filed separate opening 
briefs on September 8. Respondents brief was filed on October 17, and petition-
ers reply briefs are due November 7. 
The Commission incorporates by reference its previous stay opposition, and 
files this supplement only to address additional points made relevant both by the 
passage of time between the two stay requests and by the filing of Sorensons brief 
on the merits. 
 3
DISCUSSION 
A.  STAY OF THE FCCS ORDERS IS UNNECESSARY AT THIS TIME. 
As the Commission demonstrated in its initial stay opposition, Sorensons 
irreparable harm showing was inadequate. See FCC Stay Opp. at 18-20. That 
showing has grown even weaker with the passage of time.   
When Sorenson filed its first stay motion, completion of briefing in this case 
was still months off. Now, however, briefing will be completed in only two weeks. 
The changed calendar now presents Sorenson with an adequate alternative to a 
stay:  expedited oral argument (to which the Commission would consent) and deci-
sion on the merits. In that way, Sorenson could secure a relatively quick ruling on 
its First Amendment (and other) claims without resort to the Courts extraordinary 
equitable powers. 
Given the other procedural options open to it at this point, Sorenson cannot 
demonstrate that it would be irreparably harmed absent a stay. We believe that the 
Court could deny Sorensons renewed stay motion on this basis alone. In the alter-
native, the Court could refer Sorensons stay motion to the merits panel, which 
would be free to address the motion as it saw fit after argument.  
B. SORENSON HAS FAILED TO DEMONSTRATE THAT STAY OF 
THE FCCS ORDERS PENDING JUDICIAL REVIEW IS WARRANTED. 
The Commissions initial stay opposition demonstrated that Sorenson had 
failed to demonstrate a likelihood of success on the merits of any of its claims. See 
FCC Stay Opp. at 6-17. We here make two additional points. 
 4
1. Sorensons Corrected Stay Motion argues that a stay is warranted because 
the restrictions were adopted without the notice and comment that the APA 
requires. Corrected Stay Mot. at 16. We explained in our initial opposition that 
this argument failed because Sorenson was challenging only interpretative or 
declaratory rulings, neither of which require notice and comment. See FCC Stay 
Opp. at 9-10. Sorenson has now implicitly conceded the point: its opening brief on 
the merits abandons the APA notice claim entirely. Sorenson obviously does not 
believe it has a substantial likelihood of success on the merits of a claim on which 
it is not even seeking a ruling on the merits. 
2. Sorensons Corrected Stay Motion argues that the Commissions reliance 
on Rust v. Sullivan, 500 U.S. 173 (1991), for the proposition that the government 
can permissibly insist that federal dollars support federal purposes was misplaced 
because TRS providers were not government grantees but instead contractors com-
pensated for services rendered. Corrected Stay Mot. at 10. In our initial opposi-
tion, we pointed out that this distinction, even if true, offered no help to Sorenson 
in its challenge to the portion of the orders involving its use of customer informa-
tion for its own purposes. See FCC Stay Opp. at 12. We also demonstrated that 
neither Rust nor subsequent decisions supported any such distinction. See id. at 12-
15. 
Sorensons opening brief on the merits highlights another reason why its 
grantee-contractor dichotomy provides no assistance to Sorenson here:  Even if 
 5
that distinction was one of First Amendment significance, Sorenson, as a func-
tional matter, would fall on the grantee side of the line. Sorenson has now con-
ceded in its merits brief that TRS payments are designed to compensate TRS 
providers for reasonable costs of providing interstate TRS. Sorenson Br. at 23, 
quoting 47 C.F.R.  64.604 (c)(5)(iii)(E). Explaining the rule highlighted by 
Sorenson, the Commission has stressed that the TRS compensation rate is not a 
price that is charged to, and paid by, a service user, but rather is a settlement 
mechanism to ensure that providers are compensated from the Fund for their actual 
reasonable cost of providing service. 2007 Declaratory Ruling. 22 FCC Rcd at 
20155  25 (emphasis added). The Commission has issued [s]pecific [g]uidelines 
on [a]llowable [c]osts and said that companies such as Sorenson that only offer 
relay services should be compensated only for costs [that] are reasonable and 
necessary to the provision of relay service. Id. at 20175  73 & n.197.   
Sorenson has now made clear in its opening brief that it is not challenging 
any of the determinations regarding rates and rate methodologies in that ruling, 
Br. at 8 n.2, including the determination that the rate the Commission adopted is 
intended to compensate Sorenson only for its actual cost of providing service. 
Given the (uncontested) nature of the TRS compensate rate, it was entirely reason-
able and consistent with the First Amendment for the Commission to expect pro-
viders to use the money received to actually provide service. There should not be 
excess money to engage in lobbying or other activities entirely irrelevant to the 
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purpose of the TRS Fund, Corrected Stay Mot. at 11. Instead, providers should be 
plowing the compensation they receive back into the provision of service by, for 
example, attracting better qualified communications assistants and improving 
training, see 47 C.F.R.  64.604(a)(1), or increasing staffing in order to reduce wait 
times for TRS users, see id.  64.604(b)(2). 
This expectation is especially reasonable in the case of Sorenson, which 
represented to the Commission in comments filed in this proceeding that any rate 
lower than the one ultimately adopted by the Commission would result in VRS 
rates below, in some cases far below, the level needed to fund providers reason-
able costs.
1
 If Sorenson is correct that the rate it supported (and that the Commis-
sion ultimately adopted) is the bare minimum required to fund its reasonable 
costs of providing service to TRS customers, then it was not unreasonable for the 
Commission to expect it to use that compensation to actually do so. 
Sorenson claims that the FCCs reliance on the purported need to prevent 
activities that are inconsistent with the purpose of the TRS fund, 2008 Decl. 
Ruling  10, is pretextual because the Commission has not specifically proscribed 
other expenditures that are entirely irrelevant to the purpose of the TRS Fund. 
Corrected Stay Mot. at 11. Sorenson misunderstands the Commissions analysis. 
The Commission noted the background rule that revenue from the TRS Fund, or 
                                                 
1
 Comments of Sorenson Communications, Inc. at 8 (filed May 16, 2007), avail-
able at http://fjallfoss.fcc.gov/prod/ecfs/retrieve.cgi?native_or_pdf=pdf&id_document=6519411725. 
 7
information obtained from end users in the provision of services supported by the 
TRS fund may not be used in ways that are inconsistent with the purpose of the 
TRS Fund. 2008 Declaratory Ruling, 23 FCC Rcd at 8998  10. This is consistent 
with the Commissions pre-existing (and unchallenged) regulation stating that TRS 
customer data may not be used for any purpose other than to connect the TRS 
user with the called parties desired by that TRS user, 47 C.F.R.  64.604(c)(7), 
and its explanation that the TRS compensation rate is intended only to cover 
reasonable actual costs of providing service, 2007 Declaratory Ruling, 22 FCC 
Rcd at 20145  5. 
The Commission identified contacting TRS users for lobbying purposes as 
an example of an activity falling outside the scope of the program, but by doing so 
it by no means implicitly stated that all other non-program-related activities were 
permissible. Mainstream Marketing Services, 358 F.3d 1228, 1238 (10th Cir.), 
cert. denied, 543 U.S. 812 (2004) (As a general rule, the First Amendment does 
not require that the government regulate all aspects of a problem before it can 
make progress on any front.). Rather, the Commission sought only to focus on the 
aspects of the problem that seemed most important at the time  the use of custo-
mer data and TRS funds for lobbying and advocacy. 2008 Declaratory Ruling, 23 
FCC Rcd at 8998 10 (noting that a TRS provider had bombarded deaf persons 
with material seeking to persuade them to support the providers position on mat-
ters pending before the FCC.). The Commissions particular focus on lobbying 
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expenses was also consistent with the longstanding ratemaking principle that 
lobbying is a cost that is typically given special regulatory scrutiny for ratemak-
ing purposes and that [u]nless specific justification to the contrary is given, such 
costs are presumed to be excluded from the costs of service in setting rates. 47 
C.F.R.  32.7300(h)(1). 
CONCLUSION 
In consideration of the foregoing, and the Commissions opposition to 
Sorensons initial stay request, the Court should deny the motion for stay. 
 
      Respectfully submitted, 
 
      Mathew B. Bery 
General Counsel 
 
Joseph R. Palmore 
Deputy General Counsel 
 
Daniel M. Armstrong 
      Associate General Counsel 
 
      /s/ C. Grey Pash, Jr. 
      
      C. Grey Pash, Jr. 
      Counsel 
 
      Federal Communications Commission  
      Washington, D. C.  20554 
      (202) 418-1740 
 
October 22, 2008 
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CERTIFICATE OF DIGITAL SUBMISSION 
I, C. Grey Pash, Jr., hereby certify that no privacy redactions were required 
on this document, and the digital-form submission of this document is an exact 
copy of the written document filed with the Clerk. 
The digital version of this document has been scanned for viruses using 
Symantec AntiVirus version 10.1.5.5010 (10/21/2008 rev.3). 
      /s/ C. Grey Pash, Jr. 
____________________    
C. Grey Pash, Jr.     
 
October 22, 2008 
 
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CERTIFICATE OF SERVICE 
I, C. Grey Pash, Jr., hereby certify that the foregoing Supplemental 
Opposition Of Federal Communications Commission To Petitioner Sorensons 
Corrected Motion For Stay was served this 22nd day of October, 2008, by 
electronic mail and by mailing copies by First Class United States mail to the 
following persons at the addresses shown:  
 
Donald B. Verrilli, Jr. 
Jenner & Block LLP 
1099 New York Ave., N.W.  Suite 900 
Washington, D. C.  20005 
dverrilli@jenner.com 
 
Robert J. Wiggers 
U. S. Department of Justice 
950 Pennsylvania Ave., NW 
Washington, D. C.  20530 
robert.wiggers@usdoj.gov 
 
Dana Frix 
Chadbourne & Parke LLP 
1200 New Hampshire Ave., NW 
Washington, D. C.  20036 
dfrix@chadbourne.com  
    
        /s/ C. Grey Pash, Jr. 
      ____________________ 
      C. Grey Pash, Jr.