Case: 20-1446 Document: 39 Page: 1 Filed: 04/01/2021
`United States Court of Appeals
`for the Federal Circuit
`Appeal from the United States Court of Federal Claims
`in No. 1:19-cv-00149-LAS, Senior Judge Loren A. Smith.
`Decided: April 1, 2021
`LEX RICHARD SMITH, Kobayashi Sugita & Goda, Hono-
`lulu, HI, argued for plaintiff-appellant.
` SHARI A. ROSE, Commercial Litigation Branch, Civil
`Division, United States Department of Justice, Washing-
`ton, DC, argued for defendant-appellee. Also represented
` ______________________
`Before LOURIE, O’MALLEY, and REYNA, Circuit Judges.
`O’MALLEY, Circuit Judge.


`Case: 20-1446 Document: 39 Page: 2 Filed: 04/01/2021
`Sandwich Isles Communications, Inc. (“SIC”) appeals
`the decision of the United States Court of Federal Claims
`(“Claims Court”) granting the United States’ motion to dis-
`miss for lack of subject matter jurisdiction. Sandwich Isles
`Commc’ns, Inc. v. United States, 145 Fed. Cl. 566 (2019)
`(“Decision on Appeal”). Because we agree with the Claims
`Court that its Tucker Act jurisdiction over SIC’s takings
`claim is displaced by the comprehensive scheme for review
`set forth in the Communications Act of 1934, 47 U.S.C.
`§ 402(a), we affirm.
`A. Statutory and Regulatory Framework
`Congress enacted the Communications Act of 1934
`(“Communications Act”) and created the Federal Commu-
`nications Commission (“FCC”) to make “available . . . to all
`the people of the United States . . . a rapid, efficient, Na-
`tion-wide, and world-wide wire and radio communication
`service with adequate facilities at reasonable charges.” 47
`U.S.C. § 151. In 1996, Congress amended the Communica-
`tions Act to specify that it applies to all “rural, insular, and
`high cost areas.” 47 U.S.C. § 254(b)(3). The amendment
`further required the FCC to provide “specific, predictable
`and sufficient Federal and State mechanisms to preserve
`and advance universal service.” 47 U.S.C. § 254(b)(5).
`To implement the Communications Act and fulfill its
`mandate to provide universal service, the FCC created the
`Universal Service Fund (“USF”), which is administered by
`the Universal Service Administrative Company (“USAC”)
`and overseen by the FCC. See 47 C.F.R. § 54.701(a). The
`USF consists of four separate funds, but only the high-cost
`support fund, which is designed to support rural providers
`serving high-cost areas, is at issue in this appeal. See Ver-
`mont Pub. Serv. Bd. v. FCC, 661 F.3d 54, 57 (D.C. Cir.
`2011) (describing the four funds).


`Case: 20-1446 Document: 39 Page: 3 Filed: 04/01/2021
`High-cost universal service support is designed to en-
`sure that consumers in “all regions of the Nation, including
`low-income consumers and those in rural, insular, and
`high-cost areas,” have access to telecommunications ser-
`vices at rates that are reasonably comparable to those in
`urban areas. 47 U.S.C. § 254(b). The high-cost support
`programs fulfill these goals by allowing certain eligible car-
`riers that serve rural, insular, and high-cost areas to re-
`cover certain reasonable costs of providing service. Eligible
`telecommunication carriers receiving high-cost universal
`service support must use it “only for the provision, mainte-
`nance, and upgrading of facilities and services for which
`the support is intended.” 47 U.S.C. § 254(e).
`Telecommunications carriers in high-cost areas may
`also receive support from the National Exchange Carrier
`Association (“NECA”) pool, which is a separate fund from
`the high-cost Universal Service Fund. Sandwich Isles
`Commc’ns, Inc., v. FCC, 741 F. App’x 808, 809 (D.C. Cir.
`2018). NECA is “a not-for-profit organization set up by the
`[FCC] that provides various services for small carriers, in-
`cluding filing of tariffs and operating a pooling process that
`averages the access charges billed to long-distance carri-
`ers.” Id.
`B. Factual Background
`SIC was formed in the mid-1990s to provide telecom-
`munications services to native Hawaiians. SIC is a wholly-
`owned subsidiary of Waimana Enterprises, which is a Ha-
`waiian corporation. Albert Hee was the president of SIC
`until sometime in 2013. Hee was also the sole owner of
`Waimana until December 2012, at which point he began to
`share ownership with trusts benefitting his three adult
`In 1997, SIC was designated as an eligible telecommu-
`nications carrier to provide service to customers in the Ha-
`waiian home lands, which consists of “roughly 200,000
`acres [of land] spread out over more than 70 non-


`Case: 20-1446 Document: 39 Page: 4 Filed: 04/01/2021
`contiguous parcels on six of the largest eight Hawaiian
`[I]slands.” Decision on Appeal, 145 Fed. Cl. at 569. SIC
`subsequently began receiving high-cost support funds and
`participating in the NECA pool. Id.
`1. The Paniolo Lease
`After initially serving rural communities in Hawaii by
`leasing capacity on an existing undersea cable, SIC entered
`into an exclusive, 20-year lease of a newly constructed ca-
`ble owned by Paniolo, LLC, a different corporate vehicle of
`Waimana. Sandwich Isles Commc’ns, 741 F. App’x at 809.
`“While [SIC’s] subscriber base is relatively small, the Pan-
`iolo cable that it leased is massive, with the capacity to pro-
`vide broadband service to the entire state of Hawaii. It was
`also expensive. The variable lease began at $15 million an-
`nually and had risen to $24 million annually by [2018].” Id.
`SIC sought to include the cost of the lease in its revenue
`requirement, which would have allowed it to recover the
`cost of the lease from NECA’s revenue pool. In 2010, the
`Commission’s Wireline Competition Bureau issued a De-
`claratory Ruling allowing 50 percent of SIC’s lease ex-
`penses to be included in its revenue requirement. Id. at
`810. The Wireline Bureau found that “equitable consider-
`ations, primarily prospective future growth, justified the
`50 percent figure.” Id. SIC appealed that decision to the
`In December 2016, the FCC “found that the equitable
`considerations relied upon by the Wireline Bureau’s deci-
`sion no longer justified recovery of 50 percent of the Paniolo
`cable costs—the projected growth never materialized.” Id.
`The FCC permitted SIC to keep the sums it received in the
`past. But moving forward, the FCC determined that SIC
`could only recover $1.9 million per year from the NECA
`pool. Id. SIC filed an appeal challenging the FCC’s order,
`which the United States Court of Appeals for the District
`of Columbia (“D.C. Circuit”) denied. Sandwich Isles
`Commc’ns, 741 F. App’x at 809–11.


`Case: 20-1446 Document: 39 Page: 5 Filed: 04/01/2021
`2. Changes to SIC’s USF Support
`In 2011, the FCC comprehensively reformed its exist-
`ing regulatory system for telephone service. In re FCC 11-
`161, 753 F.3d 1015, 1035 (10th Cir. 2014). As a result, the
`FCC reformed the manner and amount of USF payouts
`made to rural carriers. In relevant part, the FCC insti-
`tuted a $250 per-line, per-month cap on USF support, ef-
`fective July 2014. See 47 C.F.R. § 54.302(a). This was a
`significant reduction from the $14,000 per line per year
`that SIC had been receiving. United States v. Sandwich
`Isles Commc’ns, Inc., 398 F. Supp. 3d 757, 766 (D. Hawaii
`The FCC, recognizing that its reforms could impact
`particular recipients differently, established a waiver
`mechanism under which a carrier could seek relief from
`some or all of the reforms if the carrier could demonstrate
`that the reduction in existing high-cost support would put
`consumers at risk of losing service. Id. SIC sought a
`waiver, but the Wireline Competition Bureau denied its re-
`quest in May 2013. Decision on Appeal, 145 Fed. Cl. at 571.
`Specifically, the Wireline Competition Bureau found that
`SIC failed to show good cause for a waiver and explained
`that SIC sought “a waiver that would allow it to retain a
`number of significant and wasteful expenses, totaling
`many millions of dollars, including significant payments to
`a number of affiliated and closely-related companies.” In
`re Connect Am. Fund, 28 FCC Rcd. 6553, 2013 WL
`1962345, at *1 (Wireline Comp. Bur. May 10, 2013). SIC
`did not appeal that order.
`In July 2015, Albert Hee—manager of SIC and its par-
`ent company, Waimana—was convicted of violating the tax
`code. Decision on Appeal, 145 Fed. Cl. at 571. Specifically,
`Hee was found guilty of improperly categorizing certain
`personal expenses as business expenses from 2002 through
`2012, and for failing to report personal expense payments
`as income. Id. Between 2002 and 2012, Waimana paid


`Case: 20-1446 Document: 39 Page: 6 Filed: 04/01/2021
`$4,063,294.39 of Hee’s personal expenses, which he im-
`properly designated as business expenses. Id.
`Shortly after Hee’s conviction, the FCC directed USAC
`“to suspend ‘high-cost funding to [SIC] pending completion
`investigation and/or other ameliorative
`measures to ensure that any funding provided is used
`solely in a manner consistent with Commission rules and
`policies.’” Id. USAC subsequently suspended SIC’s USF
`support and audited SIC’s use of USF funds from 2002 to
`2015. Id. The audit revealed that SIC received millions of
`dollars of USF funds that it should not have received.
`In September 2015, while USAC’s investigation was
`pending, the Hawaii Public Utilities Commission issued an
`order stating that it could not certify that all federal high-
`cost support provided to SIC was used in the preceding cal-
`endar year (2014), and would be used in the coming calen-
`dar year (2016), only for the facilities and services for which
`the support was intended, as required by 47 C.F.R.
`§54.314(a). SIC has not received funds from the USF since
`September 2015, because an eligibility certification is a
`prerequisite to receiving USF funds. Decision on Appeal,
`145 Fed. Cl. at 572.
`In 2015, SIC filed a petition with the FCC alleging that
`the FCC lacked authority to suspend its high-cost subsidies
`and requesting release of the funds. SIC’s petition to re-
`scind the suspension remains pending. Id. at 574. In 2017,
`SIC petitioned the D.C. Circuit for a writ of mandamus,
`asking the court to order the FCC to reinstate the USF sup-
`port. The court denied the petition in February 2018.
`Sandwich Isles Commc’ns, Inc., No. 17-1248, 2018 U.S.
`App. LEXIS 4139 (D.C. Cir. Feb. 16, 2018).
`Following the USAC investigation, the FCC issued an
`order in December 2016, finding that SIC improperly re-
`ceived payments in the amount of $27,270,390 from the
`federal high-cost support mechanisms that were in place
`between 2002 and 2015. Decision on Appeal, 145 Fed. Cl.


`Case: 20-1446 Document: 39 Page: 7 Filed: 04/01/2021
`at 572. Specifically, the FCC found that the amounts paid
`to SIC were excessive. In re Sandwich Isles Commc’ns, 31
`FCC Rcd. 12999, 13000, 2016 WL 7129743, at *1 (F.C.C.
`Dec. 5, 2016). The 2016 order required SIC to repay the
`over $27 million that it improperly received and continued
`the suspension of further USF payments to SIC.
`SIC filed a petition for reconsideration of the 2016 or-
`der, which the FCC denied in January 2019. Sandwich
`Isles Commc’ns, Inc., 34 FCC Rcd. 577, 579, 2019 WL
`105385, at *2 (F.C.C. Jan. 3, 2019). The D.C. Circuit sub-
`sequently dismissed SIC’s appeal of the reconsideration or-
`der on grounds that SIC missed its filing deadline by one
`day. Sandwich Isles Commc’ns, Inc. v. FCC, No. 19-1056,
`2019 WL 2564087, at *1 (D.C. Cir. May 17, 2019).
`C. Procedural History
`In January 2019, SIC filed this suit in the Claims
`Court, alleging that the cumulative effect of the FCC’s re-
`ductions in SIC’s federal subsidies resulted in a taking of
`property without just compensation.1 SIC sought $200 mil-
`lion in damages.
`The government moved to dismiss, arguing, among
`other things, that the court’s Tucker Act jurisdiction is
`preempted by the comprehensive remedial scheme pro-
`vided in the Communications Act. Specifically, the govern-
`ment argued that SIC’s claims seek review of FCC
`decisions, which are within the exclusive jurisdiction of the
`courts of appeals. 28 U.S.C. § 2342; 47 U.S.C. § 402(a).
`The government further argued that SIC failed to allege a
`1 SIC’s complaint also included claims relating to an
`alleged breach of an implied-in-fact contract and alleged vi-
`olations of Federal statutes and regulations mandating
`compensation. SIC has not pursued those claims on ap-
`peal, however.


`Case: 20-1446 Document: 39 Page: 8 Filed: 04/01/2021
`valid takings claim because it has no property interest in
`receiving support payments from FCC-administered funds.
`On October 11, 2019, the Claims Court dismissed SIC’s
`complaint for lack of subject matter jurisdiction. At the
`outset, the court recognized that the “Communications Act
`of 1934 and the Hobbs Act specify the process for judicial
`review of FCC orders.” Decision on Appeal, 145 Fed. Cl. at
`573. The court concluded that, although SIC characterized
`its claim as a Fifth Amendment taking, “the true nature of
`SIC’s claims is targeted at invalidating the FCC orders.”
`Id. at 575. The court explained that, by statute, only the
`D.C. Circuit—not the Claims Court—has jurisdiction over
`SIC’s claims. Id. at 574. The Claims Court therefore dis-
`missed SIC’s claims pursuant to Rule 12(b)(1).
`SIC moved for reconsideration, arguing that no takings
`claim was ripe at the time of the FCC proceedings, making
`the Claims Court the appropriate venue for its claims. The
`Claims Court denied that motion in January 2020, explain-
`ing that its jurisdiction under the Tucker Act had been
`preempted by the Communications Act and the Hobbs Act.
`Order at 1–2, Sandwich Isles Commc’ns, Inc. v. United
`States, No. 19-149 (Ct. Cl. Jan. 31, 2020), ECF. No. 15. The
`court further stated that, “[t]o the extent that a takings
`claim can arise out of the FCC orders at issue here, the
`Court agrees with the plaintiff’s assertion that the Court
`cannot rule on a takings claim that is not yet ripe.” Id. at
`2. But because SIC has not “received a decision regarding
`its 2015 petition challenging the suspension of its high-cost
`subsidies, any takings claim, to the extent that one even
`exists, remain unripe.” Id. The court therefore denied
`SIC’s motion for reconsideration.
`SIC timely appealed. We have jurisdiction pursuant to
`28 U.S.C. § 1295(a)(3).


`Case: 20-1446 Document: 39 Page: 9 Filed: 04/01/2021
`We review “whether the Court of Federal Claims pos-
`sesses subject-matter jurisdiction de novo.” Biltmore For-
`est Broad. FM, Inc. v. United States, 555 F.3d 1375, 1380
`(Fed. Cir. 2009).
`On appeal, SIC argues that it “has a takings claim for
`Constitutionally confiscatory rates where, as here, it has
`been denied a waiver and the rates cannot sustain contin-
`ued service.” Appellant’s Br. 9. According to SIC, it “filed
`its takings claim at the right time and in the right court”
`because it made a waiver request to the FCC, and that re-
`quest was denied. Id. at 11.
`The government responds that the Claims Court cor-
`rectly dismissed SIC’s complaint for lack of subject matter
`jurisdiction because Congress enacted a comprehensive re-
`gime governing judicial review of FCC orders that dis-
`places Tucker Act jurisdiction. For the reasons explained
`below, we agree.2
`Under the Tucker Act, the Claims Court has jurisdic-
`tion over cases “founded either upon the Constitution, or
`any Act of Congress or any regulation of an executive de-
`partment, or upon any express or implied contract with the
`2 The government also argues that SIC cannot allege
`a valid takings claim because it has no vested property in-
`terest in receiving support from the high-cost universal
`support fund. The government may well be right. See
`Members of the Peanut Quota Holders Ass’n, Inc. v. United
`States, 421 F.3d 1323, 1335 (Fed. Cir. 2005) (“[T]he fact
`that [the plaintiffs] expected to continue to derive benefits
`from the program does not create rights to compensation
`from the government.”). But, because we agree with the
`Claims Court that the Communications Act preempts its
`Tucker Act jurisdiction over SIC’s takings claim, we need
`not address the that alternative argument.


`Case: 20-1446 Document: 39 Page: 10 Filed: 04/01/2021
`United States, or for liquidated or unliquidated damages in
`cases not sounding in tort.” 28 U.S.C. § 1491(a)(1). The
`Supreme Court has described the Tucker Act as serving a
`“gap-filling role” by allowing “for an action against the
`United States for the breach of monetary obligations not
`otherwise judicially enforceable.” United States v. Bormes,
`568 U.S. 6, 12–13 (2012). Accordingly, the Supreme Court
`and this court have held that the Tucker Act does not apply
`in various circumstances where Congress has provided “a
`precisely drawn, detailed statute” that “contains its own ju-
`dicial remedies.” Id. at 12 (internal quotation marks omit-
`ted); Folden v. United States, 379 F.3d 1344, 1357 (Fed. Cir.
`2004). “To determine whether a statutory scheme dis-
`places Tucker Act jurisdiction, a court must ‘examin[e] the
`purpose of the [statute], the entirety of its text, and the
`structure of review that it establishes.’” Horne v. Dep’t of
`Agric., 569 U.S. 513, 527 (2013) (quoting United States v.
`Fausto, 484 U.S. 439, 444 (1988)).
`“In the Communications Act, Congress enacted a com-
`prehensive statutory and regulatory regime governing or-
`ders of the Commission.” Folden, 379 F.3d at 1357. The
`Communications Act specifically provides for judicial re-
`view of FCC decisions in 47 U.S.C. § 402. Subsection
`402(a) provides that “[a]ny proceeding to enjoin, set aside,
`annul, or suspend any order of the Commission under this
`chapter (except those appealable under subsection (b) of
`this section) shall be brought as provided by [the Hobbs
`Act].” 47 U.S.C. § 402(a). The Hobbs Act, in turn, provides
`for the courts of appeals to have “exclusive jurisdiction” to
`“enjoin, set aside, suspend (in whole or in part), or to deter-
`mine the validity of” all final orders of the Commission
`made reviewable by subsection 402(a). 28 U.S.C. § 2342.
`Subsection 402(b), on the other hand, indicates that the
`D.C. Circuit has jurisdiction with respect to certain deci-
`sions and orders of the Commission, as set forth in subsec-
`tions 402(b)(1)–(10). 47 U.S.C. § 402(b).


`Case: 20-1446 Document: 39 Page: 11 Filed: 04/01/2021
`The Supreme Court has held that the statutory juris-
`diction of the courts of appeals over claims that fall within
`the scope of subsection 402(a) is exclusive. FCC v. ITT
`World Commc’ns, Inc., 466 U.S. 463, 468 (1984) (“Exclusive
`jurisdiction for review of final FCC orders, such as the
`FCC’s denial of respondents’ rulemaking petition, lies in
`the Court of Appeals.” (citing 28 U.S.C. § 2342(1); 47 U.S.C.
`§ 402(a)). Likewise, we have recognized that “the D.C. Cir-
`cuit’s jurisdiction over claims that fall within subsection
`402(b) is exclusive.” Folden, 379 F.3d at 1356.
`In Folden, we examined the Communications Act in de-
`tail and explained that “subsections 402(a) and (b) com-
`prise the entire statutory regime by which parties may
`obtain judicial review of Commission decisions.” Id. We
`further explained that, “[b]y their plain language, subsec-
`tions 402(a) and (b) are mutually exclusive.” Id. As such,
`“[a]ppeals from all decisions of the Commission that do not
`fall within subsection 402(b) are encompassed by the pro-
`cedures of subsection 402(a).” Id. And we reiterated that
`where, as here, a “specific and comprehensive scheme for
`administrative and judicial review is provided by Congress,
`the Court of Federal Claims’ Tucker Act jurisdiction over
`the subject matter covered by the scheme is preempted.”
`Id. at 1357 (quoting Vereda, Ltda v. United States, 271 F.3d
`1367, 1375 (Fed. Cir. 2001)).
`Because the “true nature” of the plaintiffs’ claims in
`Folden involved denial of a license application, we found
`that they fell within the scope of subsection 402(b)(1). 379
`F.3d at 1359 n. 13. As such, they were subject to the exclu-
`sive jurisdiction of the D.C. Circuit. Id. at 1363. We there-
`fore affirmed the Claims Court’s dismissal for lack of
`subject matter jurisdiction. Id.; see also Biltmore Forest
`Broad. FM, Inc. v. United States, 555 F.3d 1375, 1384
`(Fed. Cir. 2009) (“There is no jurisdiction in the Court of
`Federal Claims to initially adjudicate or to re-adjudicate
`the FCC’s compliance with its rules and regulations in


`Case: 20-1446 Document: 39 Page: 12 Filed: 04/01/2021
`licensing proceedings. The District of Columbia Circuit’s
`jurisdiction over those issues is exclusive.”).
`Although Folden expressly addressed claims under
`subsection 402(b), our reasoning applies with equal force to
`claims under subsection 402(a)—the jurisdictional provi-
`sion at issue here—because such claims are part of the
`same comprehensive statutory scheme governing orders of
`the FCC. Indeed, it is well-established that courts of ap-
`peals have exclusive statutory jurisdiction to review claims
`that fall within subsection 402(a). Folden, 379 F.3d at 1356
`(citing FCC, 466 U.S. at 468); see also AT&T Corp. v. FCC,
`323 F.3d 1081, 1084 (D.C. Cir. 2003) (“Section 402(a), the
`Act’s general review provision, vests in courts of appeals
`exclusive jurisdiction over ‘[a]ny proceeding to enjoin, set
`aside, annul or suspend’ or determine the validity of final
`Commission orders, 47 U.S.C. § 402(a)[.]”); U.S. West
`Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1120
`(9th Cir. 1999) (“The Hobbs Act grants exclusive jurisdic-
`tion to courts of appeals to determine the validity of all fi-
`nal orders of the FCC.” (citing 28 U.S.C. § 2342; 47 U.S.C.
`§ 402(a)). Accordingly, the Communication Act’s compre-
`hensive scheme for review displaces Tucker Act jurisdic-
`tion for FCC orders and decisions falling within 47 U.S.C.
`§ 402(a).
`The Supreme Court has made clear that “a claim for
`just compensation under the Takings Clause must be filed
`in the Court of Federal Claims in the first instance, unless
`Congress has withdrawn the Tucker Act grant of jurisdic-
`tion in the relevant statute.” Horne, 569 U.S. at 527 (quot-
`ing Eastern Enters. v. Apfel, 524 U.S. 498, 520 (1998)
`(plurality opinion)); see also Vereda Ltda v. United States,
`271 F.3d 1367, 1375 (Fed. Cir. 2001) (holding Tucker Act
`jurisdiction over plaintiff’s takings claim preempted by
`statutory scheme that provided for review with the agency
`and in district court). Accordingly, the relevant inquiry is
`whether the Communications Act withdraws Tucker Act
`jurisdiction over takings claims.


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`We recently determined that the Communication Act’s
`comprehensive remedial scheme preempts and therefore
`displaces Tucker Act jurisdiction over takings claims. Al-
`pine PCS, Inc. v. United States, 878 F.3d 1086, 1096 (Fed.
`Cir. 2018). In Alpine, the plaintiff alleged that the FCC’s
`cancellation of two personal communications services li-
`censes was a taking for which it was entitled just compen-
`sation. Id. at 1088. We explained that the judicial review
`scheme set forth in the Communications Act “squarely co-
`vers Alpine’s grievance” because its “takings claim (like its
`contract claims) is based on the FCC’s cancellation of the
`station licenses, a decision that falls squarely within the
`judicial-review provision, 47 U.S.C. § 402(b)(5).” Id. at
`First, we examined the Communications Act and found
`that it provides a “comprehensive statutory scheme
`through which Alpine could present, and is directed to pre-
`sent, its takings claim, to the exclusion of the Tucker Act
`under the Horne analysis.” Id. at 1079. We noted that,
`“[a]s for relief at the agency level, there was no procedural
`impediment to Alpine’s presenting a takings claim to the
`FCC. The FCC did not suggest that it lacked the authority
`to review the license cancellation and take steps to provide
`compensation.” Id. at 1097. Indeed, both parties agreed
`that “the FCC had the power to grant Alpine adequate re-
`lief, by eliminating the taking, providing compensation, or
`some combination.” Id. at 1096. We then explained that
`the D.C. Circuit was capable of ordering any appropriate
`relief with respect to the takings claim, whether on appeal
`or on remand to the agency. Id. at 1098. Accordingly, un-
`der “the comprehensive statutory scheme” provided by the
`Communications Act, “Alpine could have raised a constitu-
`tional takings claim; the FCC had the authority to grant
`relief; and the D.C. Circuit had jurisdiction to review
`whether a taking occurred and, if so, whether the FCC de-
`cision ‘yield[ed] just compensation.’” Id. (citation omitted).
`Because the statutory scheme provided the plaintiff a


`Case: 20-1446 Document: 39 Page: 14 Filed: 04/01/2021
`“ready avenue” to bring its takings claim and displaced
`Tucker Act jurisdiction over that claim, we affirmed the
`Claims Court’s judgment dismissing the plaintiff’s claims
`for lack of jurisdiction. Id.
`Although Alpine dealt specifically with subsection
`402(b), as we explained before, our analysis and reasoning
`with respect to the statutory scheme set forth in the Com-
`munications Act applies with equal force in cases involving
`subsection 402(a). The relevant question is therefore
`whether SIC’s alleged takings claims challenge FCC ac-
`tions and orders and thus are governed by subsection
`402(a).3 That subsection, as noted, provides the procedure
`“to enjoin, set aside, annul, or suspend any order of the
`[FCC]” except those appealable under subsection 402(b).
`47 U.S.C. § 402(a).
`In analyzing whether subsection 402(a) applies, we
`“must look to the true nature of [the plaintiff’s] claim, not
`how plaintiff characterize[s] it.” Folden, 379 F.3d at
`1359 n.13. Here, SIC’s takings claim is based on its disa-
`greement with FCC decisions regarding the amount of
`3 Although the Claims Court stated that SIC’s
`claims fall within the scope of subsection 402(b), it did not
`identify a particular provision within that subsection. De-
`cision on Appeal, 145 Fed. Cl. at 574 (“It seems clear to this
`Court that the ‘true nature’ of SIC’s claims is focused on
`challenging the validity and propriety of FCC orders and
`actions, therefore bringing those claims under the purview
`of 47 U.S.C. § 402(b).”). Notably, the government does not
`contend that subsection 402(b) applies to SIC claims. Be-
`cause SIC’s claims do not appear to fall within the scope of
`a particular provision in subsection 402(b), we focus our in-
`quiry on subsection 402(a). See Folden, 379 F.3d at 1356
`(“Appeals from all decisions of the Commission that do not
`fall within subsection 402(b) are encompassed by the pro-
`cedures of subsection 402(a).”).


`Case: 20-1446 Document: 39 Page: 15 Filed: 04/01/2021
`subsidies SIC could receive from the USF and NECA pools.
`SIC also takes issue with the FCC’s 2013 order, which de-
`nied SIC’s petition for waiver of the $250 per-line, per-
`month cap on high-cost universal service support. These
`allegations take aim at FCC orders and seek to “enjoin, set
`aside, annul, or suspend” them. See 47 U.S.C. § 402(a). Be-
`cause SIC’s takings claim challenges FCC actions and or-
`ders governed by 47 U.S.C. § 402(a), the statutory scheme
`set forth in the Communications Act displaces the Claims
`Court’s Tucker Act jurisdiction.
`On appeal, SIC argues that it “did not plead its claims
`as challenges to FCC orders because the claims are not, in
`fact, facial challenges to FCC orders.” Appellant’s Br. 15.
`SIC maintains that the FCC’s denial of its “waiver petition
`in 2013 established the rate in the FCC’s 2011 Order as
`final,” and that the “rate is confiscatory, resulting in an un-
`constitutional taking under the Fifth Amendment.” Id.
`at 15–16. But SIC’s claim, regardless of how it is charac-
`terized, is premised on its disagreement with the amount
`of subsidy funding it has received from FCC-administered
`funds, particularly the high-cost USF. Congress has given
`the courts of appeals exclusive jurisdiction over “[a]ny pro-
`ceeding to enjoin, set aside, annul, or suspend” orders of
`the FCC—which includes FCC decisions relating to univer-
`sal service support. 28 U.S.C. § 2342(a); 47 U.S.C. § 402(a).
`Accordingly, if SIC wanted to challenge the FCC orders, it
`was required to do so within the comprehensive statutory
`scheme established by the Communications Act—that is,
`by first filing an appeal with the FCC before pursuing a
`judicial remedy pursuant to section 402.
`SIC also maintains that it could not have raised its tak-
`ings claim as a challenge to any FCC order because “a tak-
`ings claim asserted in an appeal from the FCC’s order
`would be unripe.” Appellant’s Br. 12–13. At the same time,
`however, SIC alleges that “a confiscatory rate takings
`claim is ripe when its impacts are known” and the “impacts
`of the FCC’s 2011 rates have been fully manifested.” Id.


`Case: 20-1446 Document: 39 Page: 16 Filed: 04/01/2021
`at 14. Indeed, SIC alleges that its taking claim “was al-
`ready ripe when SIC filed its 2015 petition.” Id. SIC’s ripe-
`ness allegations, which seem to be a moving target, miss
`the mark. The fact remains that SIC has not raised its tak-
`ings claim before the FCC, which it was required to do be-
`fore seeking judicial review. See Williamson Cnty. Reg’l
`Planning Comm’n v. Hamilton Bank of Johnson City, 473
`U.S. 172, 194–95 (1985) (“[A] claim that the application of
`government regulations effects a taking of a property inter-
`est is not ripe until the government entity charged with im-
`plementing the regulations has reached a final decision
`regarding the application of the regulations to the property
`at issue.”), overruled on other grounds by Knick v. Twp. of
`Scott, 139 S. Ct. 2162, 2179 (2019).
`As we said in Alpine, there is no procedural impedi-
`ment to presenting a takings claim to the FCC. 878 F.3d
`at 1097.4 The proper procedure for doing so is set forth in
`the Communication Act’s comprehensive statutory scheme:
`SIC could have raised a constitutional takings claim to the
`FCC, challenging the rate; the FCC had authority to grant
`relief, including waiver of the rate it set; and if the FCC
`denied the waiver, SIC could appeal that decision to the
`full commission and then to the court of appeals. Counsel
`for the government confirmed this procedure during oral
`argument. See Oral Arg. at 15:50–17:10, available at
`4 As we explained in Alpine, we do not imply that all
`constitutional challenges to the FCC’s actions must be pre-
`sented to the FCC before they can be asserted. But, where,
`as here, the FCC is in the position to prevent an alleged
`taking in the course of its own proceedings, the agency
`must be made aware of any such claim. Any such claim is
`then subsumed into the agency’s final decision and can be
`appealed only to the court of appeals. See Alpine, 878 F.3d
`at 1096–98.


`Case: 20-1446 Document: 39 Page: 17 Filed: 04/01/2021

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