throbber
Case: 21-60089 Document: 00515736220 Page: 1 Date Filed: 02/08/2021
`
`
`
`No. 21-_____
`
`In the
`United States Court of Appeals
`for the Fifth Circuit
`
`
`
`
`
`HUAWEI TECHNOLOGIES USA, INC., AND
`HUAWEI TECHNOLOGIES CO., LTD.,
`Petitioners,
`v.
`FEDERAL COMMUNICATIONS COMMISSION AND
`UNITED STATES OF AMERICA,
`Respondents.
`
`On Petition for Review of an Order of the
`Federal Communications Commission
`
`PETITION FOR REVIEW
`
`
`
`Andrew D. Lipman
`Russell M. Blau
`David B. Salmons
`MORGAN, LEWIS & BOCKIUS LLP
`1111 Pennsylvania Ave., NW
`Washington, DC 20004-2541
`(202) 739-3000
`andrew.lipman@morganlewis.com
`
`February 5, 2021
`
`
`Glen D. Nager
`Michael A. Carvin
` Counsel of Record
`James E. Gauch
`JONES DAY
`51 Louisiana Ave., NW
`Washington, DC 20001-2113
`(202) 879-3939
`macarvin@jonesday.com
`
`Counsel for Petitioners Huawei Technologies USA, Inc.,
`and Huawei Technologies Co., Ltd.
`
`
`
`

`

`Case: 21-60089 Document: 00515736220 Page: 2 Date Filed: 02/08/2021
`
`
`
`Pursuant to 5 U.S.C. § 706, 47 U.S.C. § 402, 28 U.S.C. §§ 2342–
`
`2344, and Federal Rule of Appellate Procedure 15(a), Huawei Technolo-
`
`gies USA, Inc., and Huawei Technologies Co., Ltd. (collectively, “Petition-
`
`ers”), hereby petition this Court for review of the final order of the United
`
`States Federal Communications Commission (“FCC”) captioned In the
`
`Matter of Protecting Against National Security Threats to the Communi-
`
`cations Supply Chain Through FCC Programs—Huawei Designation
`
`(“Final Designation Order”), Memorandum Opinion and Order, FCC 20-
`
`179, PS Docket No. 19-351. The Final Designation Order was released on
`
`December 11, 2020, and a copy of the order is attached as Exhibit A. This
`
`Petition for Review is timely filed “within 60 days after … entry,” 28
`
`U.S.C. § 2344, of “public notice of the order,” 47 U.S.C. § 405(a), which is
`
`“the release date” “[f]or non-rulemaking documents released by the Com-
`
`mission,” 47 C.F.R. § 1.4(b)(2), like the Final Designation Order.
`
`To date, no court has upheld the validity of the Final Designation
`
`Order.
`
`Jurisdiction and venue are proper because Petitioners are ad-
`
`versely affected by the Final Designation Order, which is a final FCC
`
`order under 47 U.S.C. § 402 and 28 U.S.C. § 2342, and because Huawei
`
`1
`
`

`

`Case: 21-60089 Document: 00515736220 Page: 3 Date Filed: 02/08/2021
`
`
`
`Technologies USA, Inc., is a corporation organized under Texas law with
`
`its principal office in this circuit at 5700 Tennyson Parkway #500 in
`
`Plano, Texas 75024, see 28 U.S.C. § 2343.
`
`Petitioners seek review of the Final Designation Order on the
`
`grounds that it exceeds the FCC’s statutory authority; violates federal
`
`law and the Constitution; is arbitrary, capricious, and an abuse of discre-
`
`tion, and not supported by substantial evidence, within the meaning of
`
`the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; was adopted
`
`through a process that failed to provide Petitioners with the procedural
`
`protections afforded by the Constitution and the Administrative Proce-
`
`dure Act; and is otherwise contrary to law. Accordingly, Petitioners re-
`
`spectfully request that this Court (1) hold that the Final Designation Or-
`
`der is unlawful, (2) vacate the Final Designation Order, and (3) provide
`
`such other relief as this Court deems appropriate.
`
`
`
`
`
`
`
`2
`
`

`

`Case: 21-60089 Document: 00515736220 Page: 4 Date Filed: 02/08/2021
`
`
`
`CERTIFICATE OF INTERESTED PERSONS
`
`No. 21-_____, Huawei Technologies USA, Inc., and Huawei
`Technologies Co., Ltd. v. Federal Communications Commission
`and United States of America
`
`The undersigned counsel of record certifies that the following listed
`
`persons and entities as described in the fourth sentence of Fifth Circuit
`
`Local Rule 28.2.1 have an interest in the outcome of this case. These rep-
`
`resentations are made in order that the judges of this Court may evaluate
`
`possible disqualification or recusal.
`
`1.
`
`Petitioner Huawei Technologies USA, Inc., is a wholly owned,
`
`indirect subsidiary of Huawei Investment & Holding Co., Ltd. Specifi-
`
`cally, Huawei Technologies USA, Inc., is wholly owned by Huawei Tech-
`
`nologies Coöperatief U.A. (Netherlands). Huawei Technologies Coöper-
`
`atief U.A.’s parent corporation is Huawei Technologies Co., Ltd. (China).
`
`Huawei Technologies Co., Ltd., is 100% owned by Huawei Investment &
`
`Holding Co., Ltd.
`
`2.
`
`Petitioner Huawei Technologies Co., Ltd., is a wholly owned,
`
`direct subsidiary of Huawei Investment & Holding Co., Ltd.
`
`3. Huawei Investment & Holding Co., Ltd., has no parent corpo-
`
`ration, and no publicly held corporation owns 10% or more of its stock. Of
`
`3
`
`

`

`Case: 21-60089 Document: 00515736220 Page: 5 Date Filed: 02/08/2021
`
`
`
`Huawei Investment’s shares, (a) just over 1% are owned by the founder
`
`of Huawei, Mr. Ren Zhengfei, and (b) the remainder are owned by the
`
`Union of Huawei Investment & Holding Co., Ltd., which administers an
`
`employee stock ownership plan in which around 104,500 employees par-
`
`ticipate.
`
`4.
`
`5.
`
`The Federal Communications Commission is a federal agency.
`
`The United States of America is a respondent by statute. See
`
`28 U.S.C. § 2344; 47 U.S.C. § 402(a).
`
`6.
`
`The order on review potentially impacts the financial inter-
`
`ests of the telecommunications industry as a whole, including manufac-
`
`turers, end users, and service providers in a broad range of industries,
`
`such as internet, cellular and landline telephone, and similar telecommu-
`
`nications applications. Such entities may include, among others, the par-
`
`ties that participated in the rulemaking proceedings before the Federal
`
`Communications Commission (WC Docket No. 18-89) on which the final
`
`designation here at issue (PS Docket No. 19-351) was based, see Pet. for
`
`Review 11-16, No. 19-60896 (5th Cir. filed Dec. 4, 2019; docketed Dec. 5,
`
`2019); Pet. for Review 12-17, No. 19-60896 (5th Cir. Jan. 7, 2020), as well
`
`4
`
`

`

`Case: 21-60089 Document: 00515736220 Page: 6 Date Filed: 02/08/2021
`
`
`
`as the parties that participated in the final designation proceedings lead-
`
`ing to the Final Designation Order here at issue (PS Docket No. 19-351),
`
`see infra pp. 7-9.
`
`The parties and their counsel are:
`
`Petitioners
`
`
`
`Counsel
`
`Huawei Technologies
`USA, Inc., and Huawei
`Technologies Co., Ltd.
`
` Glen D. Nager
`Michael A. Carvin
`James E. Gauch
`JONES DAY
`51 Louisiana Ave., NW
`Washington, DC 20001-2113
`(202) 879-3939
`macarvin@jonesday.com
`
`Andrew D. Lipman
`Russell M. Blau
`David B. Salmons
`MORGAN, LEWIS & BOCKIUS LLP
`1111 Pennsylvania Ave., NW
`Washington, DC 20004-2541
`(202) 739-3000
`andrew.lipman@morganlewis.com
`
`
`
`
`
`
`
`
`
`
`
`
`5
`
`

`

`Case: 21-60089 Document: 00515736220 Page: 7 Date Filed: 02/08/2021
`
`
`
`
`
`Respondents
`
`United States Federal
`Communications
`Commission
`
`
`United States of America
`
`
`
`
`
`
`
`
`Dated: February 5, 2021
`
`
`
`Counsel
`
`P. Michele Ellison
`Federal Communications Commission
`Office of General Counsel
`45 L Street NE
`Washington, DC 20554
`
`Monty Wilkinson
`U.S. Department of Justice
`950 Pennsylvania Ave. NW
`Washington, DC 20530
`
`Respectfully submitted,
`
`/s/ Michael A. Carvin
`
`Counsel of Record for Huawei
`Technologies USA, Inc., and
`Huawei Technologies Co., Ltd.
`
`6
`
`

`

`Case: 21-60089 Document: 00515736220 Page: 8 Date Filed: 02/08/2021
`
`
`
`CERTIFICATE OF SERVICE
`
`I certify that on February 5, 2021, the foregoing Petition for Review
`
`was electronically filed with the United States Court of Appeals for the
`
`Fifth Circuit using the CM/ECF system and two copies were sent to the
`
`Clerk of Court by overnight United Parcel Service.
`
`I further certify that today:
`
`1.
`
`I caused a copy of this Petition for Review to be delivered to
`
`the United Parcel Service for service by overnight delivery on:
`
`P. Michele Ellison
`Office of General Counsel
`Federal Communications Commission
`45 L Street NE
`Washington, DC 20554
`
`Monty Wilkinson
`U.S. Department of Justice
`950 Pennsylvania Ave. NW
`Washington, DC 20530
`
`2.
`
`I caused a copy of this Petition for Review to be delivered to
`
`the United Parcel Service for service by overnight delivery on the follow-
`
`ing parties, who were, to Petitioners’ knowledge, “admitted to participate
`
`in the agency proceedings,” Fed. R. App. P. 15(c)(1):
`
`7
`
`

`

`Case: 21-60089 Document: 00515736220 Page: 9 Date Filed: 02/08/2021
`
`
`
`Caressa D. Bennett
`Stephen Sharbaugh
`Rural Wireless Association, Inc.
`5185 MacArthur Blvd., NW,
`Ste. 729
`Washington, DC 20016
`
`
`David A. LaFuria
`John Cimko
`Lukas, LaFuria, Gutierrez &
`Sachs, LLP
`8300 Greensboro Dr., Ste. 1200
`Tysons, VA 22102
`Counsel for the Rural Wireless
`Broadband Coalition
`
`
`Michael Romano
`Jill Canfield
`Tamber Ray
`NTCA – The Rural Broadband
`Association
`4121 Wilson Blvd., Ste. 1000
`Arlington, VA 22203
`
`
`Gerald J. Duffy
`Blooston, Mordkofsky, Dickens,
`Duffy & Prendergast, LLP
`2120 L St., NW, Ste. 300
`Washington, DC 20037
`Counsel for WTA – Advocates
`for Rural Broadband
`
`Michael Saperstein
`USTelecom Association
`601 New Jersey Ave., NW,
`Ste. 600
`Washington, DC 20001
`
`
`David A. LaFuria
`Lukas, LaFuria, Gutierrez &
`Sachs, LLP
`8300 Greensboro Dr.,
`Ste. 1200
`Tysons, VA 22102
`Counsel for NE Colorado
`Cellular, Inc. d/b/a Viaero
`Wireless
`
`8
`
`

`

`Case: 21-60089 Document: 00515736220 Page: 10 Date Filed: 02/08/2021
`
`
`
`Stephen E. Coran
`David S. Keir
`Lerman Senter PLLC
`2001 L St., NW, Ste. 400
`Washington, DC 20036
`Counsel for JAB Wireless, Inc.
`
`Donald J. Evans
`Fletcher, Heald & Hildreth
`1300 N 17th Street
`11th Floor
`Arlington, VA 22209
`Counsel for PTA-FLA, Inc.
`
`
`Steve Papa
`Parallel Wireless
`100 Innovative Way, Suite 3410
`Nashua, NH 03062
`
`
`Donald J. Evans
`Fletcher, Heald & Hildreth, PLC
`1300 North 17th Street
`11th Floor
`Arlington, VA 22209
`Counsel for NTCH, Inc. and Flat
`Wireless, LLC
`
`Russell P. Branzell
`Mari Savickis
`CHIME
`710 Avis Drive, Suite 200
`Ann Arbor, MI 48108
`
`David A. LaFuria
`Lukas, LaFuria, Gutierrez &
`Sachs, LLP
`8300 Greensboro Dr.,
`Ste. 1200
`Tysons, VA 22102
`Counsel for Union Telephone
`Company dba Union Wireless
`
`
`Kent Bressie
`Colleen Sechrest
`Harris, Wiltshire & Grannis
`LLP
`1919 M Street, NW, Suite 800
`Washington, DC 20036-3537
`Counsel for AST Telecom, LLC
`dba Bluesky
`
`
`Melissa Slawson
`California Internet, L.P.
`DBA GeoLinks
`251 Camarillo Ranch Rd
`Camarillo, CA 93012
`
`9
`
`

`

`Case: 21-60089 Document: 00515736220 Page: 11 Date Filed: 02/08/2021
`
`
`
`Dated: February 5, 2021
`
`
`
`
`
`Respectfully submitted,
`
`/s/ Michael A. Carvin
`
`Counsel of Record for Huawei
`Technologies USA, Inc., and
`Huawei Technologies Co., Ltd.
`
`
`
`10
`
`

`

`Case: 21-60089 Document: 00515736220 Page: 12 Date Filed: 02/08/2021
`
`
`
`CERTIFICATE OF ELECTRONIC SUBMISSION
`
`I certify that: (1) any required privacy redactions have been made;
`
`(2) the electronic submission of this document is an exact copy of any cor-
`
`responding paper document; and (3) the document has been scanned for
`
`viruses with the most recent version of a commercial virus scanning pro-
`
`gram and is free from viruses.
`
`
`
`Dated: February 5, 2021
`
`
`
`Respectfully submitted,
`
`/s/ Michael A. Carvin
`
`Counsel of Record for Huawei
`Technologies USA, Inc., and
`Huawei Technologies Co., Ltd.
`
`
`
`11
`
`

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket