Nuvio Corp v. FCC ( 2006 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2006 Decided December 15, 2006
No. 05-1248
NUVIO CORPORATION,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION AND
UNITED STATES OF AMERICA,
RESPONDENTS
VERIZON TELEPHONE COMPANIES AND
AT&T CORPORATION,
INTERVENORS
Consolidated with
05-1345, 05-1346, 05-1347
On Petitions for Review of an Order of the
Federal Communications Commission
Russell M. Blau argued the cause for petitioners. With
him on the briefs were Richard M. Rindler and Joshua M.
Bobeck.
James M. Carr, Counsel, Federal Communications
Commission, argued the cause for respondents. With him on the
2
brief were Peter D. Keisler, Assistant Attorney General, U.S.
Department of Justice, Douglas N. Letter, Appellant Litigation
Counsel, Scott R. McIntosh, Special Counsel, Samuel L. Feder,
General Counsel, Federal Communications Commission, and
Jacob M. Lewis and Daniel M. Armstrong, Associate General
Counsel. John E. Ingle, Deputy Associate General Counsel, and
Nandan M. Joshi, Counsel, entered appearances.
Michael E. Glover, Karen Zacharia, Leslie V. Owsley,
Joseph R. Guerra, David L. Lawson, and Gary L. Phillips were
on the brief for intervenors AT&T Corporation and Verizon
Telephone Companies. David W. Carpenter entered an
appearance.
Before: GINSBURG, Chief Judge, and GRIFFITH and
KAVANAUGH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH in
which Chief Judge GINSBURG joins and Circuit Judge
KAVANAUGH joins with the exception of footnote five.
Concurring opinion filed by Circuit Judge KAVANAUGH.
GRIFFITH, Circuit Judge: Petitioners, providers of the
newly-emerging technology of Internet telephone service,
challenge an order of the Federal Communications Commission
(“Commission” or “FCC”) that gave them only 120 days to do
what is already required of providers of traditional telephone
service: transmit 911 calls to a local emergency authority. We
deny their consolidated petition for review1 because we conclude
1
Nuvio Corporation; Lightyear Network Solutions, LLC;
Primus Telecommunications, Inc.; Lingo, Inc.; and i2 Telecom
International, Inc. (collectively “petitioners”) have all petitioned
3
that the Commission adequately considered not only the
technical and economic feasibility of the deadline, inquiries
made necessary by the bar against arbitrary and capricious
decision-making, but also the public safety objectives the
Commission is required to achieve.
I.
One of the many dramatic changes the Internet has
brought to telecommunications has been the development of
interconnected Voice over Internet Protocol (“VoIP”) service,
which allows a caller using a broadband Internet connection to
place calls to and receive calls from other callers using either
VoIP or traditional telephone service. E911 Requirements for
IP-Enabled Service Providers, First Report and Order and
Notice of Proposed Rulemaking, 20 F.C.C.R. 10245, 10246 n.1
(2005) (“Order”). From a caller’s perspective, interconnected
VoIP service is, for the most part, similar to traditional
telephone service, and its users reasonably expect it to function
the same. But two additional capabilities of VoIP service
undermine those expectations when callers try to use 911
emergency services. VoIP service allows callers to choose what
are called “non-native” area codes. For example, a customer
living in the District of Columbia can use an area code from
anywhere in the country. Some interconnected VoIP providers
(“IVPs”) also offer “nomadic” service, which allows a VoIP
telephone call to be made and received from wherever the user
can establish a broadband connection. (By contrast, “fixed”
VoIP telephone service can only be used from a dedicated, fixed
connection—typically in a home or office.) As attractive as
these two features may be, each makes it difficult for IVPs to
provide the local callers the 911 emergency service they expect
for review.
4
and upon which they rely. Routers designed to direct 911 calls
cannot recognize non-native area codes, and unlike traditional
and wireless telephone service, there are no means yet available
to easily determine the location of a caller using interconnected
VoIP service. IVPs, which were not required to do otherwise,
failed to use dedicated trunks (communications paths connecting
two switching systems, used to establish an end-to-end
connection) set aside for routing calls to a local emergency call
center (known as a public safety answering point or “PSAP”)
and instead routed 911 calls to administrative lines that had not
been designed and were not staffed to handle emergency calls.
Id. at 10246 ¶ 1 n.2 (documenting various instances in which
consumers were unable to contact emergency help after dialing
911 using an interconnected VoIP service). The resulting
tragedies gave rise to the Order at issue.
The Commission, which had previously been reluctant
to regulate this nascent industry for fear of hindering its
development, see, e.g., IP-Enabled Services, Notice of
Proposed Rulemaking, 19 F.C.C.R. 4863, 4864 ¶ 1 (2004)
(“Notice of Proposed Rulemaking” or “NPRM”) (noting that IP-
enabled services had developed “in an environment that is free
of many of the regulatory obligations applied to traditional
telecommunication services”), decided that an immediate
solution was required to “discharge[] the Commission’s
statutory obligation to promote an effective nationwide
911/E911 emergency access system,” Order, 20 F.C.C.R. at
10266 ¶ 36.2 The Commission thus ordered that
2
E911 is a more advanced version of the traditional 911
system, which merely routes an emergency call to the local
PSAP, because it provides additional information about the
caller:
5
within 120 days of the effective date of this
Order,[3] an interconnected VoIP provider must
transmit all 911 calls, as well as a call back
number and the caller’s “Registered Location”
for each call, to the PSAP, designated statewide
default answering point, or appropriate local
emergency authority that serves the caller’s
Registered Location.
Id. ¶ 37 (citations omitted).
In effect, the Order requires that all IVPs, including
those that offer nomadic service using non-native area codes,
ensure that their users are able to reach local emergency services
when making 911 calls. To do so, IVPs must route all 911 calls
using the technology known as Automatic Number Identification
(“ANI”) or pseudo-ANI, if necessary. ANI “identifies the
E911 systems route 911 calls through the use of
a Selective Router to a geographically
appropriate PSAP based on the caller’s location.
E911 also provides the call taker with the caller’s
call back number, referred to as Automatic
Numbering Information (ANI), and, in many
cases, location information—a capability
referred to as Automatic Location Identification
(ALI).
Order, 20 F.C.C.R. at 10251 ¶ 13 (citations omitted).
3
This Order became effective on July 29, 2005, see 70
Fed. Reg. 43,323, 43,323 (July 27, 2005) (to be codified at 47
C.F.R. § 9.5), thereby requiring compliance by November 28,
2005, id.6
calling party and may be used as a call back number.” 47 C.F.R.
§ 20.3. A pseudo-ANI is “[a] number, consisting of the same
number of digits as ANI, that is not a North American
Numbering Plan telephone directory number and may be used
in place of an ANI to convey special meaning.” Id. Because
local selective routers are not capable of delivering non-native
numbers to a local PSAP, pseudo-ANIs are used to temporarily
mask the true number with a local number to facilitate
processing by the local selective router for delivery to the PSAP.
See id. The Commission was less stringent in requiring the use
of Automatic Location Information (ALI), which provides an
emergency dispatcher with the geographic location of the caller,
because it is not yet technologically feasible to detect
automatically the location of nomadic VoIP callers. The Order
only requires, therefore, that IVPs ensure that 911 calls are
routed to the registered and not the actual location of each 911
caller. See Order, 20 F.C.C.R. at 10271 ¶ 46. IVPs, however,
must provide a way for consumers to update their registered
locations in a timely fashion. See id. These interconnected IVP
911 calls must also be routed through the Wireline E911
network.4 See id. at 10269 ¶ 40.
The Commission did not dictate a specific manner for
IVPs to provide E911 access. Instead, the Commission noted
that IVPs could satisfy these requirements by interconnecting
directly with the E911 network through incumbent local
4
“The core of the existing wireline E911 network is a
dedicated, redundant, highly reliable wireline network (Wireline
E911 Network), which is interconnected with but largely
separate from the PSTN [public switched telephone network].”
Order, 20 F.C.C.R. at 10251 ¶ 14. This network is generally
implemented and operated by incumbent local exchange carriers
(“ILECs”). Id.7
exchange carriers (“ILECs”), see id. at 10268 ¶ 39, by
interconnecting indirectly through a third party, see id. at 10267
¶ 38, or by any other solution that results in E911 access, see id.Finally, the Order requires that interconnected VoIP providers
notify every customer, new and existing, about “the
circumstances under which E911 service may not be available
through the interconnected VoIP service or may be in some way
limited by comparison to traditional E911 service.” Id. at 10272
¶ 48.
II.
Under the Administrative Procedure Act, which governs
our review of this challenge, petitioners’ burden is to show that
the Order is “arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law,” see 5 U.S.C.
§ 706(2)(A). They rely upon three arguments to meet that
burden. First, petitioners assert that the Order’s 120-day
deadline for IVPs to provide E911 service to their users of
nomadic, non-native VoIP service is an unexplained departure
from the Commission’s precedent made without adequate regard
to economic and technological obstacles. Petitioners also fault
the Order for requiring that IVPs connect to the Wireline E911
network but failing to impose a corresponding duty on ILECs to
permit this connection. Finally, petitioners contend that the
Commission did not give adequate notice of the substance of the
Order. We consider these arguments in turn and find each
wanting.
A. The FCC decision to require all IVPs—including
providers of nomadic, non-native VoIP
service—to provide E911 access within 120
days.
Petitioners assert that the Commission disregarded
8
record evidence that the 120-day deadline was not feasible
because there was no demonstrated way to overcome the
technical and practical obstacles to implement E911 for
providers of nomadic, non-native VoIP service. But this
argument fails in the face of substantial contrary record evidence
that the nation’s largest interconnected VoIP provider had
already procured a technical solution to meet the deadline.5 The
Commission noted that Intrado, a third-party competitive local
exchange carrier, was already prepared to offer a technological
5
Our concurring colleague reads the Order to suggest
that “the 911 requirement would be justified even if VoIP
providers could not feasibly meet the 120-day deadline.”
Concurring Op. at [1-2]. But he quotes no language in the
Order stating that, and we find none suggesting that. The Order
makes reference to the Commission’s statutory duty to consider
safety, a factor that is an important element in our analysis, but
we do not think these references can support the suggestion that
the Commission has ever justified the 120-day deadline on the
basis of any authority to ban VoIP service outright. We note
that if such authority exists, the Commission has not clearly
relied on it in its briefs or at oral argument. In fact, when asked
to clarify whether the deadline was appropriate even if it was not
feasible, counsel for the Commission replied, “No. No, Your
Honor. The Commission believed that the deadline was
aggressive, but that it was something that could be met, and it
recognized the need to try to force these parties to get going, to
get moving.” Transcript of Oral Argument at 19, Nuvio Corp.
v. FCC, No. 05-1248 (D.C. Cir. Sep. 12, 2006). Because we
“cannot sustain [the Commission’s] action on some other basis
the [Commission] did not mention,” Point Park Univ. v. NLRB,
457 F.3d 42, 50 (D.C. Cir. 2006) (citing SEC v. Chenery Corp.,
332 U.S. 194, 196-97 (1946)), we need not consider whether
safety concerns alone would justify the deadline.
9
solution that met the Order’s requirements, even for providers
of nomadic, non-native service. Order, 20 F.C.C.R. at 10267
¶ 38. At the time the Order was promulgated and in advance of
the 120-day deadline, Intrado was already offering a service that
“enables the delivery of a VoIP subscribers [sic] address and call
back number to the most geographically relevant [PSAP] . . . ,
thereby accommodating the nomadic capability inherent in their
VoIP service.” Ex Parte Letter from M. Boyd, Intrado, to M.H.
Dortch, FCC, WC Docket No. 04-36 (Apr. 25, 2005); see also
Ex Parte Letter from M. Boyd, Intrado, to M.H. Dortch, FCC,
WC Docket No. 04-36 (Apr. 19, 2005). Vonage, the nation’s
largest VoIP provider, agreed with Verizon, the ILEC
controlling the Wireline E911 network in its territory, that it
would use Intrado’s service “to deliver both caller’s location and
call back number to emergency services personnel for 911 calls
placed throughout Verizon’s [28-state] territory,” and would do
so by November 4, before the November 28, 2005 deadline. Ex
Parte Letter from W.B. Wilhelm, Vonage, to K.J. Martin, FCC,
WC Docket No. 04-36 (May 9, 2005).
The Commission also relied on IVP trials that
demonstrated E911 access was possible for providers of
nomadic, non-native VoIP service. For example, Qwest and
Vonage conducted a test of VoIP E911 access in King County,
Washington. This test included both an experimental means of
PSTN access and a messaging component used to deliver the
calling party’s location automatically. Petitioners’ focus on the
failed experimental access component ignores the successful
messaging component of the trial that demonstrated VoIP E911
access was in fact possible. In recounting the results of this trial,
Qwest noted that, rather than using this failed experimental
access, an IVP could provide E911 service using a combination
of Qwest’s tarriffed access to the Wireline E911 network and
10
third party support services.6 Ex Parte Letter from C.
O’Connell, Qwest, to M.H. Dortch, FCC, WC Docket No. 04-36
(Apr. 12, 2005). Vonage had also successfully tested E911
access for nomadic VoIP in Newport, Rhode Island. See Ex
Parte Letter from W.B. Wilhelm, Vonage, to M.H. Dortch, FCC,
WC Docket No. 04-36 (May 9, 2005). Petitioners seize upon
two elements of this Newport test to argue that it is an unreliable
basis for the Order. First, there is only one PSAP in small
Rhode Island and so this test could not address the critical issue
of routing calls to the wrong PSAP. Second, the state and not an
ILEC owns the selective router and so there is no issue of
providing access to the E911 Wireline network. Petitioners have
no doubt identified elements in this test that provide some
grounds to distinguish them from what the Order demands, but
the general success of the Rhode Island test, combined with the
substantial deference we owe the FCC’s predictive judgments,
overcomes the petitioners’ objections. See, e.g., Int’l Ladies’
Garment Workers’ Union v. Donovan, 722 F.2d 795, 821 (D.C.
Cir. 1983) (“Predictive judgments about areas that are within the
agency’s field of discretion and expertise” are entitled to
“particularly deferential” treatment.); see also Charter
Commc’ns, Inc. v. FCC, 460 F.3d 31, 44 (D.C. Cir. 2006) (“That
6
To provide E911 connectivity for its “nomadic”
VoIP users, the VoIP provider can purchase the
dedicated access component in the form of
Qwest’s tarriffed E911 service and, in addition,
they can purchase the E2 interface (the
messaging component) from a VoIP Positioning
Center provider. This is consistent with the
NENA I2 standard.
Ex Parte Letter from C. O’Connell, Qwest, to M.H. Dortch,
FCC, WC Docket No. 04-36 (Apr. 12, 2005).
11
is a predictive judgment that the FCC is entitled to make and to
which we defer.”).
Petitioners’ argument that the submission of the National
Emergency Number Association (“NENA”) undermines the
Commission’s conclusion that the 120-day deadline was
reasonable also fails to account for the deference we give to an
agency’s predictive judgments. NENA opined that “the bulk of
national access to [E911]” could be reached within 120 days, but
noted that “[f]ull national access” could take “another 4-6
months.” Ex Parte Letter from J.R. Hobson, NENA, to M.
Dortch, FCC, WC Docket No. 04-36 (May 11, 2005) (emphasis
added). The Commission was acting well within its authority to
use its expertise to make predictive judgments when it
concluded that if the “bulk of national access” could be achieved
within 120 days, it was reasonable to use that time period.
We must also address the petitioners’ claim that the
Commission erred by failing to distinguish between the
technological obstacles faced by nomadic or non-native VoIP
providers and those faced by fixed, native providers. They
allege the Commission based the Order on the technological
capabilities associated with fixed VoIP service and overlooked
the unique challenges posed by nomadic, non-native VoIP
service. But the Commission in fact considered the unique
technological challenges of nomadic VoIP, see Order, 20
F.C.C.R. at 10259 ¶ 25 (noting that “certain [nomadic or
portable] VoIP services pose significant E911 implementation
challenges”), and taking stock of those challenges, did not
require that IVPs determine the actual location of nomadic VoIP
users because it “is not always technologically feasible for
providers of interconnected VoIP service to automatically
determine the location of their end users without end users’
active cooperation,” id. at 10271 ¶ 46. Instead, the Commission
determined that IVPs must provide only the registered location
12
of the nomadic VoIP user making a 911 call, see id., and called
for comment on the feasibility of automatically determining the
geographic location of nomadic VoIP users, see id. at 10276-77
¶¶ 56-57.
Petitioners’ argument that the Commission overlooked
the economic cost of implementing the Order’s 120-day
deadline highlights that our task under the arbitrary or capricious
standard is to determine only whether an agency’s decision
“‘was based on a consideration of the relevant factors and
whether there has been a clear error of judgment,’” Motor
Vehicles Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983) (quoting Bowman Transp., Ind. v.
Ark.-Best Freight System, Inc., 491 U.S. 281, 285 (1974)).
Petitioners overlook a countervailing interest that the
Commission must consider and we must respect—the threat to
public safety. When, as is the case with the FCC, Congress has
given an agency the responsibility to regulate a market such as
the telecommunications industry that it has repeatedly deemed
important to protecting public safety, the agency’s judgments
about the economic cost of its regulations must take into account
its duty to protect the public. The Commission is required to
consider public safety by both its enabling act, see
Communications Act of 1934 § 1, 47 U.S.C. § 151 (“so as to
make available, so far as possible . . . [a] world-wide wire and
radio communication service with adequate facilities at
reasonable charges . . . for the purpose of promoting safety of
life and property through the use of wire and radio
communications”) (emphasis added), and the Wireless
Communication and Public Safety Act of 1999 § 3, 47 U.S.C.
§ 615 (“shall encourage and support efforts by States to deploy
comprehensive end-to-end emergency communications
infrastructure and programs, based on coordinated statewide
plans, including seamless, ubiquitous, reliable wireless
telecommunications networks and enhanced wireless 9-1-1
13
service”). The Commission here weighed public safety against
the economic cost of compliance with the Order and found that,
“[w]hile 120 days is an aggressively short amount of time in
which to comply with these requirements, the threat to public
safety if we delay further is too great and demands near
immediate action.” Order, 20 F.C.C.R. at 10266-67 ¶ 37
(emphasis added).
Because the Commission has reasonably determined that
nomadic, non-native VoIP E911 access is technologically
feasible, any argument about the time period required for
implementation is nothing more than a quarrel over relative
costs and benefits. In this case, the Commission has weighed
the cost of an “aggressive” implementation scheme—a 120-day
deadline—against the cost in human lives, and found in favor of
public safety. See id. at 10266 ¶ 36 (“We find that this
requirement most appropriately discharges the Commission’s
statutory obligation to promote an effective nationwide
911/E911 emergency access system by recognizing the needs of
the public safety community to get call back and location
information and balancing those needs against existing
technological limitations of interconnected VoIP providers.”);
cf. Public Citizen v. Auchter, 702 F.2d 1150, 1157 (D.C. Cir.
1983) (“Delays that might be altogether reasonable in the sphere
of economic regulations are less tolerable when human lives are
at stake.”). We may not disturb its determination where, as here,
the Commission has considered relevant factors and has
articulated a reasoned basis for its conclusion. See State Farm,
463 U.S. at 42-43. When viewed in this light, we cannot agree
that the 120-day deadline is arbitrary or capricious.
Petitioners’ final challenge to the 120-day deadline is
that it represents an unexplained departure from long-standing
precedent. The precedent, so the argument goes, was
established when the FCC gave more time for wireless and
14
satellite phones and other new technologies to implement 911
capabilities than the aggressive deadline it has imposed on the
new VoIP telephone service market. Petitioners are right that an
agency departing from precedent “must provide a principled
explanation for its change of direction.” Nat’l Black Media
Coalition v. FCC, 775 F.2d 342, 355 (D.C. Cir. 1985); see also
Airmark Corp. v. FAA, 785 F.2d 685, 692 (D.C. Cir. 1985). But
surely different technologies may reasonably bear different
regulatory burdens. It is not apparent to us that the regulation of
satellite or wireless phones is clear precedent for the regulation
of information technology service providers. No doubt each
involves telephone communications, but the differences between
satellite and wireless phone service on the one hand and VoIP
service on the other are such that the Commission has previously
refused to classify IP-enabled services as telecommunications
carriers. We give deference to agency expertise used to
distinguish its prior cases from present controversies. See PPL
Montana, LLC v. Surface Transp. Bd., 437 F.3d 1240, 1247
(D.C. Cir. 2006) (“[T]he [agency’s] attempt to distinguish its
prior cases, while terse, is entitled to deference.” (quoting Inland
Lakes Mgmt., Inc. v. NLRB, 987 F.2d 799, 805 (D.C. Cir.
1993))). Even if the Commission’s regulatory approach to these
other telecommunications services provided a precedent for
VoIP service, the Commission provided a reasoned explanation
for adopting a different approach by expressly noting that “the
record indicates that the network components that have been
developed to make wireless E911 possible can also be used for
VoIP E911, which should make the implementation process
simpler and far less expensive than the initial upgrades
necessary for wireless E911.” Order, 20 F.C.C.R. at 10274
¶ 53; see also Ex Parte Letter from W.B. Wilhelm, Vonage, to
K.J. Martin, FCC, WC Docket No. 04-36 (May 9, 2005) (stating
that Vonage “does not anticipate that it will face the same issues
that have made [wireless] E-9-1-1 such a daunting challenge”).
15
Because petitioners acknowledge that some type of E911
regulation is necessary, see Petitioners’ Br. at 19, this petition
for review is, in essence, a challenge only to where the FCC has
drawn the regulatory “line,” and we have previously and
repeatedly given the Commission “wide discretion to determine
where to draw administrative lines.” AT&T Corp. v. FCC, 220
F.3d 607, 627 (D.C. Cir. 2000). Based on the record evidence,
the demonstrated safety concerns, and our deference to the
Commission’s predictive judgments, we conclude that the
Order’s 120-day deadline was neither arbitrary nor capricious.
B. The FCC requirement for IVP connectivity to the
Wireline E911 network without a corresponding
obligation on ILECs.
The Order requires IVPs to utilize the Wireline E911
network generally owned by the ILECs, but it failed to impose a
duty on ILECs to provide that access. Petitioners argue that this
different treatment of the ILECS was error. We find no error for
the simple reason that the record contained evidence that major
ILECs were cooperating with nomadic IVPs and “increasingly
offering E911 solutions that allow VoIP providers to interconnect
directly to the Wireline E911 network through tariff, contract, or
a combination thereof.” Order, 20 F.C.C.R. at 10268 ¶ 39. There
is record evidence, for example, that Qwest, Bellsouth, and
Verizon were cooperating with IVPs to provide access to the
Wireline E911 network. See, e.g., Ex Parte Letter from C.
O’Connell, Qwest, to M.H. Dortch, FCC, WC Docket No. 04-36
(Apr. 12, 2005); Ex Parte Letter from B.L. Ross, Bellsouth, to
M.H. Dortch, FCC, WC Docket No. 04-36 (May 12, 2005); Ex
Parte Letter from K. Grillo, Verizon, to M.H. Dortch, FCC, WC
Docket No. 04-36 (May 11, 2005). Although there is some
evidence to suggest that a few ILECs were not always
cooperative, see Petitioners’ Reply Br. at 10 n.15, there was
ample evidence of significant and increasing ILEC cooperation
16
with IVPs and, in the Commission’s view, that cooperation
removed any need to impose a duty upon ILECs to permit
connectivity. That is a judgment we wisely leave alone as
“predictions regarding the actions of regulated entities are
precisely the type of policy judgments that courts routinely and
quite correctly leave to administrative agencies,” Public Util.
Comm’n of State of Cal. v. FERC, 24 F.3d 275, 281 (D.C. Cir.
1994).
C. The FCC’s notice and comment procedures.
Petitioners’ final argument faults the Commission because
the Notice of Proposed Rulemaking that led to the Order lacked
proposed rules or even tentative conclusions. The APA requires
notice of “either the terms or substance of the proposed rule or a
description of the subjects and issues involved.” 5 U.S.C.
§ 553(b)(3). “Since the public is generally entitled to submit their
views and relevant data on any proposals, the notice must be
sufficient to fairly apprise interested parties of the issues involved,
but it need not specify every precise proposal which [the agency]
may ultimately adopt as a rule.” Action for Children’s Television
v. FCC, 564 F.2d 458, 470 (D.C. Cir. 1977) (internal quotation
marks and citations omitted). The Commission fairly apprised the
parties and the public of the issues covered by the Order. In our
view, the Commission notified the parties of the purpose, see
NPRM, 19 F.C.C.R. at 4900 ¶ 56 (“how best to achieve our policy
objectives for ensuring the availability of 911 and E911
capability”), the extent, see id. (“the effectiveness of alternatives
to direct regulation”), the form, see id. at 4901 ¶ 56
(“technological flexibility so that our rules allow for the
development of new and innovative technologies”), and the time
frame, see id. ¶ 57 (“time frame in which we should consider 911
and E911 regulatory issues in the IP context”) of any potential
regulation. The NPRM gave “interested parties a reasonable
opportunity . . . to present relevant information” on the central
17
issues. WJG Tel. Co. v. FCC, 675 F.2d 386, 389 (D.C. Cir. 1982)
(internal quotation marks and citations omitted). Indeed, many of
the parties submitted comments on all aspects of VoIP access.
III.
For the foregoing reasons, the petition for review is
denied.
So ordered.
KAVANAUGH, Circuit Judge, concurring: In 2005, the
Federal Communications Commission required voice-over-
Internet-protocol (VoIP) providers to ensure adequate 911
connections – a requirement already imposed on wireline and
wireless telephone providers. The FCC set a 120-day deadline
for the VoIP providers to meet the requirement. See Order, 20
F.C.C.R. 10,245 (2005). The Court upholds the Order because
the Commission reasonably predicted that VoIP providers
(including nomadic VoIP providers) could meet the 120-day
deadline and the Order was otherwise justified and explained.
I agree with the Court’s analysis and join its opinion.
The FCC also candidly recognized, however, the potential
difficulties that nomadic VoIP providers would face in meeting
a 120-day deadline – and acknowledged that the deadline was
“aggressively short.” Id. at 10,266-10,267 ¶ 37; see also id. ¶ 25
(“[W]e recognize that certain VoIP services pose significant
E911 implementation challenges.”). The FCC nonetheless said
that “the threat to public safety if we delay further is too great
and demands near immediate action.” Id.; see also FCC Brief at
31 (“[T]he FCC made a reasonable judgment that any possible
risk that expedited 911 implementation posed to [VoIP
providers’] commercial viability was outweighed by the
growing threat to public safety if [VoIP providers] continued to
route 911 calls in a systematically unsatisfactory manner.”); id.
at 26 (“Given the tragedies that have already resulted from
inadequate VoIP 911 service, and given the projected tenfold
increase in the number of VoIP 911 calls in the near future, the
Commission reasonably concluded that the public could not
tolerate any further delay in the implementation of VoIP E911
service.”); id. (“[G]iven the profound public safety concerns
weighing in favor of rapid 911 deployment here, petitioners
have not come close to showing that the balance struck by the
Commission was unreasonable.”).
I write separately only to express my agreement with the
FCC Order’s suggestion that the 911 requirement would be
2
justified even if VoIP providers could not feasibly meet the 120-
day deadline. In my judgment, the FCC possesses the statutory
authority, which the Commission may reasonably choose to
exercise, to address the public safety threat by banning providers
from selling voice service until the providers can ensure
adequate 911 connections. And the FCC’s greater authority to
ban sales of voice service without adequate 911 capability
necessarily includes the lesser power to ban such sales
beginning in 120 days.
Congress established the FCC in part “for the purpose of
promoting safety of life and property through the use of wire
and radio communications.” 47 U.S.C. § 151. Through the
Wireless Communications and Public Safety Act of 1999,
Congress charged the FCC with ensuring that 911 service is
available throughout the country. Pub. L. No. 106-81, 113 Stat.
1286 (codified at scattered sections of 47 U.S.C.). The Act
instructs that “[t]he Commission . . . shall designate 9-1-1 as the
universal emergency telephone number within the United States
for reporting an emergency to appropriate authorities and
requesting assistance.” 47 U.S.C. § 251(e)(3). Five years later,
Congress enacted the ENHANCE 911 Act. Pub L. No. 108-494,
118 Stat. 3986 (2004) (codified at 47 U.S.C. § 942). In that Act,
Congress found that “for the sake of our Nation’s homeland
security and public safety, a universal emergency telephone
number (911) that is enhanced with the most modern and
state-of-the-art telecommunications capabilities possible should
be available to all citizens in all regions of the Nation.” Id.§ 102. Congress made clear that “enhanced 911 is a high
national priority.” Id.
As these statutes indicate, as the FCC has recognized in
prior orders, and as the record before the Commission in this
proceeding demonstrates, 911 service saves lives and helps
prevent or reduce injuries that occur as a result of violent crime
3
or accidents. See, e.g., Revision of the Commission’s Rules to
Ensure Compatibility with Enhanced 911 Emergency Calling
Systems, 11 F.C.C.R. 18,676, 18,679 ¶ 5 (1996) (911 service
“saves lives and property”); Order, 20 F.C.C.R. at 10,246 ¶ 1 n.2
(describing recent incidents involving home burglary and where
children needed immediate help); id. at 10,248 ¶ 4 n.11 (citing
comments that explain why 911 service is critical and that
describe various incidents involving 911 service); Revision of
the Commission’s Rules to Ensure Compatibility with Enhanced
911 Emergency Calling Systems, 17 F.C.C.R. 8481, 8482 ¶ 4
(2002) (considering 911 issues for victims of domestic
violence).
Adequate 911 service is important, moreover, for our
Nation to quickly respond to terrorist attacks or natural disasters.
See Order, 20 F.C.C.R. at 10,247-10,248 ¶ 4 (“911 service is
critical to our nation’s ability to respond to a host of crises”); id.
at 10,249 ¶ 6 n.16 (citing DALE N. HATFIELD, A REPORT ON
TECHNICAL AND OPERATIONAL ISSUES IMPACTING THE
PROVISION OF WIRELESS ENHANCED 911 SERVICES (2002));
HATFIELD REPORT at ii (“the tragic events of September 11,
2001 and growing dependence on wireless networks[] serve to
further emphasize the importance of E911 in general, and
wireless E911 in particular, to the safety of life and property and
homeland security”); id. at 15 (timely response to call of
suspicious activity “could make the difference between a foiled
or successful attack”); Recommendations of the Independent
Panel Reviewing the Impact of Hurricane Katrina on
Communications Networks, Notice of Proposed Rulemaking, 21
F.C.C.R. 7320, 7326 ¶¶ 16-17 (2006) (summarizing proposed
ways to ensure adequate 911 service during natural disasters); cf.
FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST
ATTACKS UPON THE UNITED STATES 318 (2004) (discussing
importance of 911 in emergency responses to terrorist attacks);
U.S. HOUSE OF REPRESENTATIVES, FINAL REPORT OF THE
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SELECT BIPARTISAN COMMITTEE TO INVESTIGATE THE
PREPARATION FOR AND RESPONSE TO HURRICANE KATRINA 163-
64 (2006) (inoperability of 911 can impede emergency services
in response to natural disasters).
In sum, the evidence establishes that adequate 911 service
is vital to the personal security of American citizens and the
homeland security of our Nation. The broad public safety and
911 authority Congress has granted the FCC therefore includes
the authority to prevent providers from selling voice service that
lacks adequate 911 capability.