David F. Brown

Partner
dbrown@ebbklaw.com
+1 512.770.4077 (direct)
+1 512.461.6107 (mobile)
+1 877.851.6384 (fax)

111 Congress Avenue
Suite 2800
Austin, TX 78701
USA

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Practice Areas

Civil Litigation

Class Action Defense

Administrative Law

Telecommunications

Public Policy

Education

Southern Methodist University
J.D. 1985

Board of Editors of the
SMU Law Review Association, Journal of Air Law and Commerce

Southern Methodist University
B.A., B.S. (with distinction) 1982

Admissions

District of Columbia

Texas

Western District of Texas

Eastern District of Texas

Northern District of Texas

Southern District of Texas

District of Columbia

D.C. Circuit Court of Appeals

Fifth Circuit Court of Appeals

Eighth Circuit Court of Appeals

Tenth Circuit Court of Appeals

Mr. Brown navigates clients through the increasingly complex regulatory landscape at both the state and federal levels. Mr. Brown developed his courtroom skills as a commercial trial lawyer in Dallas during the heyday of Texas litigation. See, e.g., Best v. Ryan Auto Group, Inc., 786 S.W.2d 670 (Tex. 1990); Herchman v. Sun Medical, Inc., 751 F. Supp. 942 (N.D. Okla. 1990). Since then, he has put those skills in marshaling evidence and arguments to effective use in regulatory and enforcement actions, as well as controversial-rule-making proceedings.

Mr. Brown has served a lead counsel for individuals, businesses, non-profits, and industry groups in matters before the Federal Communications Commission (FCC), the Federal Energy Regulatory Commission (FERC), the North American Electric Reliability Corporation (NERC), the Texas Reliability Entity/Texas Regional Entity, the Texas Department of Insurance, the Texas Department of Motor Vehicles, the Texas Department of Transportation, the Electric Reliability Council of Texas (ERCOT), the Texas Public Utility Commission, the Texas Attorney General's office, the Texas Medical Board, the Texas Appraisal Licensing and Certification Board, the Texas Board of Veterinarian Medical Examiners, the State Office of Administrative Hearings (SOAH), the Texas Commission on Environmental Quality, and administrative law judges in other forums.

Before forming EBB, Mr. Brown was a complex civil litigation partner at K&L Gates handling a wide variety of state and federal cases in multiple venues, including class action defense, environmental litigation, real estate disputes, trade-secret and non-competition, injunctions, and asset forfeitures, as well as administrative cases. At EBB, he continues to serve as lead trial counsel in federal and state court litigation over agency actions, including pre-emptive or parallel litigation, as well as judicial review, and he has argued in federal and state courts of appeals, particularly in litigation involving federal administrative rulemaking.

Mr. Brown also represents public agency and private clients on a daily basis in Texas Public Information Act (PIA) and reverse-PIA proceedings, and has provided advice to clients on campaign finance compliance and lobbyist disclosure. He has testified before multiple legislative committees on telecommunications, municipal, tax, liability, and transportation issues, and assisted clients in their development of legislative strategies, including preparation of legislation, amendments to legislation, and legislative briefing materials.

Throughout his career, Mr. Brown has been a frequent speaker on administrative law, telecommunications, and litigation, including administrative procedures, evidence, legislation, and arbitrations. He also served as Chair of the State Bar of Texas Public Utility Law Section.

Mr. Brown earned his J.D. from Southern Methodist University (1985), where he served on the board of editors, SMU Law Review Association, Journal of Air Law and Commerce. He earned dual undergraduate degrees (B.A., B.S.) with distinction from SMU in 1982.

Representative Experience*

  • Defended one of the nation’s largest bank subsidiaries in Attorney General civil investigative demand inquiries into insurance and related practices.
  • Wrote FERC/NERC-delegated reliability enforcement agency’s rules and enforcement procedures. See Texas Reliability Entity, Enforcement, http://www.texasre.org/enforcement.
  • Served as lead trial counsel for major incumbent local exchange company’s landmark federal Telecommunications Act arbitration overturning Texas precedent on landline interconnection methods, inter-carrier compensation, unbundled network elements, and rate setting. Petition of El Paso Networks, LLC for Arbitration of an Interconnection Agreement with Southwestern Bell Telephone Company, PUC Docket Nos. 25004, 25188.
  • Tried and prevailed in incumbent local exchange company’s Missouri arbitration establishing its relationship with competitive local exchange company. In the Matter of the Petition of Socket Telecom, LLC for Compulsory Arbitration of Interconnection Agreements with CenturyTel of Missouri, LLC and Spectra Communications, LLC Pursuant to Section 252(b)(1) of the Telecommunications, Act of 1996, Docket No. TO-2006-0299.
  • Led prevailing trial team in Telecom Act arbitration over novel interconnection and wireless issues. Fitch Affordable Telecom Petition for Arbitration Against SBC Texas Under Section 252 of the Communications Act, PUC Docket No. 29415.
  • Defended administrative charges against electric generation company alleging NERC and regional reliability standard violations.
  • Served and prevailed as lead counsel in South Texas wildlife foundation’s administrative challenge to path of a new 345-kV transmission line resulting in transmission applicant’s concession to reroute line away from foundation’s lands. Application of Electric Transmission Texas, LLC to Amend it Certificate of Convenience and Necessity for the Proposed Lobo to Rio Bravo to North Edinburg Double-Circuit 345-kV Transmission Line, SOAH Docket No. 473-13-0846, PUC Docket No. 40728.
  • Served and prevailed as lead trial counsel for broad coalition of landowners in a contested administrative case resulting in alternative route for a proposed 345-kV transmission line. Application of Lone Star Transmission, LLC, SOAH Docket No. 473-10-4398, PUC Docket No. 38230.
  • Defended and settled Texas Appraisal Licensing and Certification Board’s administrative charges against major bank’s in-house appraisers.
  • Defended administrative charges before the Texas Medical Board against major foreign medical school made the basis of the Board’s denial or withholding of students’ Texas licensure.
  • Successfully prosecuted novel landowner’s rights claims and certificate of convenience and necessity requirements in multiple electric transmission line cases. See, e.g., Application of Wood County Electric Cooperative, Inc., to Amend its Certificate of Convenience and Necessity for a 138-kV Transmission Line Feed to Sand Springs Substation in Wood County, Texas, PUC Docket No. 32070.
  • Represented a telecommunications company in the successful implementation of legislation in agency rulemaking implementing highly contested municipal and right-of-way issues.
  • Represented telecommunications client in federal rulemakings in implementation of legislation impacting the potential expenditure of billions of infrastructure dollars.
  • Served as lead trial counsel for national telecommunications company in litigation against Texas regulatory body resulting in a temporary injunction against the agency’s further exercise of jurisdiction.
  • Lead counsel for multiple shipping and agricultural transportation companies in administrative proceedings before or against the Texas Department of Motor Vehicles and Texas Department of Transportation over alleged violations of state, county, and municipal regulations.
  • Served as lead counsel for major construction company in defeating trade secret, non-competition and related claims, including defense of injunction and contempt actions. In re Rodman Excavation, Inc., No. 04-07-00317-CV, 2007 Tex. App. LEXIS 5154 (Tex. App.—San Antonio July 3, 2007, orig. proceeding)(granting mandamus relief from trial court’s contempt order).
  • Defended large telecommunications company in a series of complex consumer class actions arising out of contract and fraud claims and regulatory requirements and billings. See, e.g., Chemject Int'l, Inc. v. Southwestern Bell Telephone Company, No. 13-04-684-CV, 2006 Tex. App. LEXIS 677 (Tex. App.—Corpus Christi Jan. 26, 2006, no pet.); Chemject Int'l, Inc. v. Southwestern Bell Telephone Company, No. 13-04-684-CV, 2007 Tex. App. LEXIS 586 (Tex. App.—Corpus Christi Jan. 25, 2007, pet. denied), cert. denied, 552 U.S. 1310, 128 S. Ct. 1873, 170 L. Ed. 2d 745 (2008)(upholding class settlement reached prior to class certification hearing over objections); Northrup v. Southwestern Bell Telephone Co., 72 S.W.3d 16 (Tex. App.—Corpus Christi 2002, pet. denied)(same); Mireles v. Southwestern Bell Telephone Company, Cause No. 98-07-3003-E, 357th Judicial District Court of Cameron County, Texas.
  • Served as counsel for telecommunications provider in litigation against Texas cities (and other governmental entities), obtaining favorable declarations regarding provider’s property rights and governmental bodies’ authority to regulate right of way where facilities are located. See, e.g., Southwestern Bell Tel. Co. v. City of El Paso, 346 F.3d 541 (5th Cir. 2003); Southwestern Bell Telephone Company v. City of Dallas, 3:98-CV-00843-R (N.D. Tex.); Southwestern Bell Telephone Company v. City of Arlington, 3:98-CV-00844-X (N.D. Tex.); Southwestern Bell Telephone Company v. City of El Paso, 3:98-cv-00114-KC (W.D. Tex.).
  • Represented excavation contractor in environmental litigation for injunction and damages to an iconic waterway resulting from storm damage to partly constructed, cut-and-fill roadways and culverts. Travis County and State of Texas v. Coldwater Development, Ltd. and Rodman Excavation, Inc., Cause No. D-1-GV-07-002293, 98th Judicial District Court for Travis County, Texas.
  • Led team of trial and appellate counsel in series of cases seeking judicial review of FCC orders implementing the 1996 Telecommunications Act and subsequent litigation over the meaning and effect of those orders and the Act. See, e.g., Texas Office of Public Utility Counsel v. FCC, 183 F.3d 393 (5th Cir. 1999).
  • Defended lender in landowner’s action for injunction to prevent foreclosure of liens upon Bellaire, Texas, apartment complex securing previously FHA-insured debt.

*Includes matters prior to forming EBB. Prior results do not guarantee a similar outcome.

Representative Presentations and Publications

  • AWEA, Women of Wind Energy, "Wind Energy and Transmission," 2010
  • Austin Bar Association, Administrative Law Section Nuts and Bolts of Administrative Law Seminar, "Making a Record at the State Office of Administrative Hearings for Judicial Review," 2009
  • State Bar of Texas Public Utility Law Section Annual Meeting and Seminar, "Reliability Alert – Compliance with ERCOT Protocols and NERC Standards," 2008
  • State Bar of Texas Public Utility Law Section Annual Meeting and Seminar, "The New Texas Regional Entity: New Procedures, Work in Progress," 2007
  • State Bar of Texas Public Utility Law Section Annual Meeting, "TRO Remand and T2A Update," 2005
  • State Bar of Texas Public Utility Law Section Annual Meeting, "Telecommunications Regulatory Developments: USTA II, UNEs, and VOIP," 2004
  • State Bar of Texas Public Utility Law Section Annual Meeting (FCC Triennial Review Order), 2003
  • COMPTEL/TEXALTEL/SBC Seminar on FCC’s Triennial Review Order, 2003
  • University of Texas Telecommunications Seminar (right-of-way and local regulatory issues in context of telecommunications), 2002, 2003
  • National Association of State Utility Consumer Advocates (customer and carrier information under FTA and Texas rules), 2002
  • Federal Communications Bar Association (frequent speaker on various topics, including Triennial Review proceeding, legislative topics, and FTA arbitrations), 2002-2003
  • Author, Texas Reliability Entity, "Rules of Procedure"

Professional and Civic Activities

  • State Bar of Texas
    Former Chairman of the Public Utility Law Section
    Administrative Law Section
    Section of Litigation
  • District of Columbia Bar Association
  • American Bar Association
  • Texas Bar Foundation Fellow
  • Austin Bar Association, Bench-Bar Committee
  • Former Vice-President, Eanes Education Foundation
  • Former Friends of Scouting, Pacesetter Chairman