Reply Brief — APCC Services, Inc. v. Sprint Communications Co., LP (No. 05-766)

8

violations of substantial economic importance.’ The disparate

holdings of the Ninth Circuit in Metrophones and the D.C.

Circuit in this case (Pet. 22-25) are a direct result of this Court’s

failure thus far to resolve the conflict among the circuits. If the

conflict is not resolved now, it will inevitably produce still more

confusion in future cases.

This Court has held that the term “order” (in Section 402)

encompasses rulemaking orders that are “adopted by the

Commission in the avowed exercise of its rule-making power”

and that “have the force and effect of law.” Columbia

Broadcasting System, Inc. v. United States, 316 U.S. 407, 417

(1942). It should resoive confusion in the lower courts by

granting certiorari to decide, in this case, whether the term has

the same meaning in Section 416, a companion provision to

Section 402.

IV. It Is Clear That Petitioners Have Standing To Sue

This case does not present any “thorny” issues of standing,

notwithstanding respondents’ efforts (Br. in Opp. 27-29) to

suggest otherwise. Respondents concede, as the D.C. Circuit

unanimously acknowledged, that some of the petitioners are

PSPs suing to recover unpaid compensation and that those

petitioners have alleged a direct injury in fact sufficient to

confer standing. Therefore, there is no question that the Court

could reach and resolve the circuit conflicts presented by this

case, regardless of whether the subset of petitioners who sued as

assignees have standing.

Even as to the standing of assignees, this case involves an

unremarkable — and clearly correct — application of established

' These cases also show that concerns about enabling frivolous lawsuits for

“every” violation of an FCC regulation (see Pet. App. 19a; Metrophones,

423 F.3d at 1071) have no foundation in practical experience or, as we

explained in our petition (at 24 n.13) in the language of the statute.

9

law. Vermont Agency of Natural Resources v. United States ex

rel. Stevens, 529 U.S. 765 (2000), squarely held that “the

assignee of a claim has standing to assert the injury in fact

suffered by the assignor.” /d. at 773.

Respondents argued in the court of appeals that Vermont

Agency does not control here, because the assignee in Vermont

Agency intended to keep a portion of its recovery under the

assigned claims, whereas the assignees here have agreed to pass

back to the assignors all damages recovered. But Vermont

Agency clearly rejected that argument. Standing in that case did

not depend on the assignee’s “bounty” because the bounty,

much like a wager on the outcome of a case, was “an interest

that * * * cannot give rise to a cogzizable injury in fact for

Article III standing purposes.” 529 US. at 773. The relevant

question is whether the assignor suffered an injury in fact

sufficient to confer standing, not whether the assignee intends

to keep some, all, or none of the damages resulting from that

injury. /d. at 774 (“We conclude, therefore, that the United

States’ injury in fact suffices to confer standing on respondent

Stevens.”) (emphasis added). In addition, as the district court

(Pet. App. 66a-73a) and court of appeals majority (Pet. App. 8a-

lla) correctly determined, two older decisions or this Court

squarely hold that assignees-for-collection are entitled to assert

the assignors’ injury, and there is no contrary authority. See

Titus v. Wallick, 306 U.S. 282, 289 (1939); Spiller v. Atchison,

Topeka & Santa Fe Ry., 253 U.S. 117, 134 (1920). Petitioners’

standing cannot be seriously doubted.

V. This Case Should Be Accepted fi. Plenary Review and

Consolidated With Metrophones

Because this case presents questions that are intertwined

with the questions presented in Metrophones, and because the

additional questions presented in this case ment review, the

Court should grant the petition in this case and consolidate it

with Metrophones. By doing so, with very little expenditure of

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additional resources or effort, the Court will be able to consider

all rather than just some major aspects of the problem presented.

It will have the opportunity to resolve another significant circuit

conflict, to correct the misinterpretation of its decision in

Sandoval, and to construe the specific statutory provision (Sec-

tion 276) in which Congress focused on the problem underlying

both cases, i.e., the nght Congress wished to confer on PSPs to

receive compensation for dial-around calls.

If the Court chooses not to grant this petition and

consolidate it with Metrophones, it should hold this petition for

appropriate disposition after it decides Metrophones.

CONCLUSION

The petition for a writ of certiorari should be granted and

this case should be consolidated with Metrophones. If the

petition is not granted for plenary review at this time, it should

held and disposed of as appropriate in light of the Court’s

disposition of Metrophones.

Respectfully submitted.

MICHAEL W. WARD Roy T. ENGLERT, JR.*

Michael W. Ward, P.C. DONALD J. RUSSELL

1608 Barclay Boulevard DAMON W. TAAFFE

Buffalo Grove, IL 60089 Robbins, Russell, Englert,

(847) 243-3100 Orseck & Untereiner LLP

1801 K Street, N.W.

Suite 41]

Washington, D.C. 20006

(202) 775-4500

*Counsel of Record

MARCH 2006

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