AUTAUGA COUNTY EMERGENCY MANAGEMENT COMMUNICATION DISTRICT, CALHOUN COUNTY 911 DISTRICT, BIRMINGHAM EMERGENCY COMMUNICATIONS DISTRICT, MOBILE COUNTY COMMUNICATIONS DISTRICT v. FEDERAL COMMUNICATIONS COMMISSION
No. 19-15072
United States Court of Appeals For the Eleventh Circuit
October 26, 2021
[PUBLISH]
ATT,
BELLSOUTH,
Intervenors-Respondents.
Petition for Review of a Decision of the Federal Communications Commission
Agency No. 19-FCC-44
Before ROSENBAUM, LUCK, and ANDERSON, Circuit Judges.
Dialing 9-1-1 from anywhere in the United States, using just about any type of phone system, connects a user with an emergency-services hotline. That, of course, is by design.
The groundwork for our national emergency-system hotline started to be laid in the 1960s. Since that time, new telephony technology continued to develop: basic analog systems, digital systems, mobile and
Indeed, in 2008, Congress enacted legislation that required the development of a “national plan for migrating to a national IP-enabled emergency network capable of receiving and responding to all citizen-activated emergency communications and improving information sharing among all emergency response entities.”
Congress identified three interrelated purposes of the NET 911 Act: “To promote and enhance public safety by facilitating the rapid deployment of IP-enabled 911 and E-911 services, encourage the Nation‘s transition to a national IP-enabled emergency network, and improve 911 and E-911 access to those with disabilities.” Pub. L. 110-283, 122 Stat. 2620.
In furtherance of these purposes, Congress legislated “parity” between VoIP-based and non-VoIP-based providers and subscribers when it comes to providing and obtaining 911-system access. Put simply, Congress sought to eliminate any financial penalty to VoIP providers and subscribers, in comparison to non-VoIP providers and subscribers, for 911-system access.
As part of this plan, Congress enacted
Appellants here are four 911 Districts in Alabama who contend that the 911 Fee Parity Provision authorizes them to charge non-VoIP and VoIP service providers using a different unit of measure for each, as long as the Districts apply the same base fee for each unit. For example, the 911 Districts argue that they may charge non-VoIP service providers per access line and VoIP service providers per ten-digit telephone number as long as they charge, say, $1.00 each for both units—even if the total charges for a given class of VoIP subscribers exceed the total charges for the same class of non-VoIP subscribers for the same amount of burden each group of subscribers imposes on the 911 system.
Asserting that Intervenor BellSouth failed to pay the fee for each ten-digit number, the 911 Districts filed suit against BellSouth in district court. BellSouth disagreed that it was required to pay these fees.
Under the primary-jurisdiction doctrine, the district court referred the matter to the Federal Communications Commission (the “Commission“), since the Commission was charged with executing and enforcing the provisions of the NET 911 Act, see
After careful consideration and with the benefit of oral argument, we independently arrive at the same conclusion as the FCC. We base our determination on congressional intent as expressed in the statutory text, structure, and purpose of the NET 911 Act. Because Congress‘s intent is unambiguous, we deny the 911 Districts’ petition for review.
I.
A. Factual Background
1. History of 911
Just three presses of a button on any telephone—9-1-1—request emergency assistance in the United States. Dialing 911 automatically links the caller to a nearby “public safety answering point,” (referred to in the U.S. Code as “PSAP,” see
But things weren‘t always this way. Before the designation of 911 as the nationwide three-digit emergency-call number, individuals needed to know and dial local phone numbers to reach their nearby police or fire station in case of emergency. Or they could dial “0” to reach a telephone-company operator, who would then have to transfer the call. But unlike the emergency dispatchers who are now trained for their specific positions, general telephone operators weren‘t necessarily equipped or taught to perform emergency-call-assistance services.
By the mid-1950s, people started to recognize that this system was inadequate to
And ten years later, in 1967, President Lyndon B. Johnson‘s Commission on Law Enforcement and Administration of Justice recommended that citizens be able to contact police departments using a uniform telephone number. Id. Its report stated, “Wherever practical, a single police telephone number should be established, at least within a metropolitan area and eventually over the entire United States . . .” Id. To make that vision a reality, in November 1967, the Federal Communications Commission met with the American Telephone and Telegraph Company (“AT&T“)— the provider of telephone service throughout most of the United States at that time—to find a means of establishing a universal emergency number that could be implemented quickly.
Two months later, on January 12, 1968, AT&T announced its designation of 911 as the universal emergency number. Id. Why those digits? According to the National Emergency Number Association (“NENA“), 911 was “brief” and “easily remembered,” and because it was “a unique number, never having been authorized as an office code, area code, or service code,” “it best met the long range numbering plans and switching configurations of the telephone industry.” See 9-1-1 Origin & History, NENA The 9-1-1 Association, https://www.nena.org/page/911overviewfacts (last visited Oct. 26, 2021). On February 16, 1968, Alabama‘s state Speaker of the House Rankin Fite completed the first ever 911 call to Tom Bevill, a U.S. Representative, in Haleyville, Alabama, who was sitting at the police station, waiting to inaugurate the new system. See Haleyville – The First 911 Call, http://archives.ubalt.edu/bsr/articles/feb%2016.pdf.
2. Statutory regulation of 911
Fast forward to 1999 and the new age the cell-phone rang in: Congress directed the Federal Communications Commission to designate 911 as the nationwide emergency hotline for wireline and wireless voice services. See Wireless Commc‘ns and Pub. Safety Act of 1999, Pub. L. 106-81, § 3(a), 113 Stat. 1286, 1287 (Oct. 26, 1999) (codified at
In 2005, the Commission adopted rules “requiring providers of interconnected voice over Internet Protocol (VoIP) service to supply enhanced 911 (E911) capabilities to their customers.” In re IP-Enabled Servs. & E911 Requirements for IP-Enabled Serv. Providers, 20 F.C.C.R. 10245, 10246 (2005). These rules define “interconnected Voice over Internet protocol (VoIP) service” as “a service that: (i) Enables real-time, two-way voice communications; (ii) Requires a broadband connection from the user‘s location; (iii) Requires internet protocol-compatible customer premises equipment (CPE); and (iv) Permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network.”
In 2008, Congress followed suit by enacting the New and Emerging Technologies 911 Improvement Act of 2008 (“NET 911 Act“), Pub. L. 110-283, 122 Stat. 2620 (July 23, 2008). That law, which codified the rules set forth in the 2005 VoIP 911 Order, directed that it “shall be the duty of each IP-enabled voice service provider to provide 9-1-1 service and enhanced 9-1-1 service to its subscribers in accordance with the requirements of the . . . Commission.”
As we have noted, the statute also preserved the ability of states and other jurisdictions to impose fees on these types of services to assist in supporting the 911 emergency-hotline system. In so doing, the Act required that any fees charged be used exclusively “in support of 9-1-1 and enhanced 9-1-1 services, or enhancements of such services” as the state or local law authorizing the fees specified, and it directed that the fee for “each class of subscribers to [VoIP] services” not exceed that for “the same class of subscribers to telecommunications services“:
Nothing in this Act, the Communications Act of 1934 (
47 U.S.C. 151 et seq.), the New and Emerging Technologies 911 Improvement Act of 2008, or any Commission regulation or order shall prevent the imposition and collection of a fee or charge applicable to commercial mobile services or IP-enabled voice services specifically designated by a State, political subdivision thereof, Indian tribe, or village or regional corporation serving a region established pursuant to the Alaska Native Claims Settlement Act, asamended (85 Stat. 688)[,] for the support or implementation of 9-1-1 or enhanced 9-1-1 services, provided that the fee or charge is obligated or expended only in support of 9-1-1 and enhanced 9-1-1 services, or enhancements of such services, as specified in the provision of State or local law adopting the fee or charge. For each class of subscribers to IP-enabled voice services, the fee or charge may not exceed the amount of any such fee or charge applicable to the same class of subscribers to telecommunications services.
B. Procedural Background
1. The district-court lawsuit
On May 6, 2015, BellSouth Telecommunications, LLC, filed a notice of removal in the United States District Court for the Northern District of Alabama, relating to a complaint three 911 emergency-communications districts—those for Autauga County, Calhoun County, and Birmingham—filed in state court.
In an amended complaint, the 911 Districts—now including the communications district for Mobile County as well (we refer to the four 911 emergency-communications districts collectively as the “911 Districts“)—alleged that they provide their districts with 911 services, which are funded by emergency telephone service charges. They further asserted that BellSouth did not collect the proper charges from VoIP customers as required under Alabama‘s Emergency Telephone Service Act (“ETSA“),
Initially, ETSA had imposed a 911 charge on service providers for every “exchange access line” up to a cap of 100 “per person, per location.”
The 911 Districts sought in five counts to recover these allegedly unpaid charges: (1) under ETSA, (2) for negligence, negligence per se, gross negligence, and recklessness, (3) for breach of fiduciary duty, (4) for wantonness, and (5) for negligent misrepresentation and fraud.
BellSouth moved to dismiss for failure to state a claim, arguing that the factual allegations of the complaint were too conclusory and the common-law claims failed as a matter of law. The court denied the motion.
Then BellSouth filed a motion to refer two issues relating to the litigation to the Commission under the primary-jurisdiction
But the district court did not agree with the 911 Districts, and it granted the motion for referral. In its order, the court noted that the parties disagreed about how to characterize the claims in the case and about the claims’ relation to the communications technologies at issue. Although the court referred the matter to the Commission “for further guidance,” it did not explicitly adopt BellSouth‘s framing of the issues, nor did it otherwise specify the issues it was referring to the Commission.
The district court proceedings remain stayed pending this appeal.
2. The administrative proceeding
After the referral to the Commission, the 911 Districts and BellSouth filed cross-petitions for declaratory ruling with the Commission. The Commission released a public notice seeking comment on the petitions.
Once the Commission considered the comments it received, it issued its declaratory ruling. To explain the ruling, we must pause to explain the concept of call capacity. Call capacity refers to the number of concurrent calls a business‘s communications system can handle at any one time. See How much call capacity does your business need?, Bandwidth (Sept. 17, 2020), https://www.bandwidth.com/blog/how-much-call-capacity-does-your-business-need/. A business that employs 100 people, for example, may wish to assign each employee her own phone number, and it may wish to have additional phone numbers for departments or other aspects of the business. Besides allowing direct contact with those outside the business, this type of setup also permits internal employee-to-employee communications. But most businesses of this size will not require a communications system that will allow all 100 employees to be on external phone calls at the same time. Modern phone-communications services are able to offer such business customers telecommunications services that suit their needs without providing them with the capacity for each of their assigned phone numbers to be in use concurrently. See id.
Here‘s why the concept of concurrent calling capacity is important: Under Alabama‘s
To understand why, consider a VoIP and non-VoIP customer that each bought ten access lines capable of outbound calling and that each obtained twenty telephone numbers for internal communications between the employees. If the fee were $1.00 per access line for a non-VoIP customer and $1.00 per assigned telephone number for a VoIP customer, the absolute base fee charged to customers of both types of services—$1.00—would be the same. But the non-VoIP customer would be charged a total of $10.00 ($1.00 times 10 access lines), while the VoIP customer would have to pay $20.00 ($1.00 times 20 individual phone numbers) for the same concurrent outbound call capacity. As a result, if a customer switched from a non-VoIP telecommunications service to a VoIP one with the same concurrent outbound calling capacity and the same number of individual phone numbers, BellSouth asserted that such a customer would “see its monthly telephone bill increase substantially.”
With that basic understanding, we return to the order the Commission issued in response to the district court‘s referral. The Commission‘s order interpreted the 911 Fee Parity Provision,
In other words, the oranges-to-oranges comparison the Commission‘s interpretation of
Beyond this, though, the Commission declined to rule further on the specific arguments the parties raised in the district-court proceeding, including whether the 911 Fee Parity Provision preempted ETSA.
The 911 Districts now appeal the Commission‘s Order directly to us under the Hobbs Act,
By the terms of the Hobbs Act, the 911 Districts’ appeal is against the Commission. See
II.
Under the Hobbs Act, when we conduct our review, we apply the standards from the Administrative Procedure Act (“APA“). See RTC Transp., Inc. v. I.C.C., 708 F.2d 617, 619 (11th Cir. 1983). The APA, in turn, requires us to set aside “agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
III.
In reviewing the FCC‘s construction of a statute that it administers, we apply the two-step process that Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984), sets forth. See Nat‘l Ass‘n of State Util. Consumer Advocs. v. FCC, 457 F.3d 1238, 1253 (11th Cir. 2006). At Chevron‘s first step, we evaluate “whether Congress has spoken to the precise question at issue.” Id. (quoting Chevron, 467 U.S. at 842). “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. at 842–43; cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (before deferring to an agency‘s reading of its own ambiguous regulation, a court must “carefully consider the text, structure, history, and purpose of a regulation, in all the ways it would if it had no agency to fall back on“).
But if, after employing all the “traditional tools of statutory construction,” Chevron, 467 U.S. at 842 n.9, the statute remains genuinely ambiguous on the specific issue, we proceed to Chevron‘s second step, id. at 843. There, we ask “whether the agency‘s answer is based on a permissible construction of the statute.” Id.
We start with Chevron step one. First, we must identify the specific question we seek to answer. Here, that question asks whether the 911 Fee Parity Provision permits a non-federal government entity to charge a given class of VoIP subscribers a higher total 911 fee than the
As we‘ve mentioned, we ascertain congressional intent by employing the “traditional tools of statutory construction” id. at 843 n.9, as we examine the text of the statute, its structure, its history, and its stated purpose, Animal Legal Def. Fund v. U.S. Dep‘t of Agric., 789 F.3d 1206, 1215 (11th Cir. 2015); cf. Kisor, 139 S. Ct. at 2423-24 (explaining that exhausting all the tools in the regulatory-construction context requires a court to “make a conscientious effort to determine [the meaning of the regulation], based on indicia like text, structure, history, and purpose“).
Starting with the text of the statute, “we presume that Congress said what it meant and meant what it said.” Harry v. Marchant, 291 F.3d 767, 770 (11th Cir. 2002) (en banc). We focus initially on the last sentence of Section 615a-1(f)(1). It states, “For each class of subscribers to IP-enabled voice services, the fee or charge may not exceed the amount of any such fee or charge applicable to the same class of subscribers to telecommunications services.”
Our first clue comes from the structure of the sentence: here, the prepositional phrase “For each class of subscribers to IP-enabled voice services” contextualizes the rest of the sentence. So in comparing whether the fees for VoIP subscribers and for the same class of non-VoIP subscribers is the same, we consider what the fee is from the perspective of “each class of subscribers to IP-enabled voice services.”
Keeping that in mind, we move on to the phrase “imposition and collection” that appears in an earlier sentence in the provision: “Nothing [in the relevant congressional Acts and Commission actions] shall prevent the imposition and collection of a fee or charge applicable to commercial mobile services or IP-enabled voice services . . . .”
Next, we look at the word “collection.” “To collect” means “[t]o bring together in a group or mass; gather.” Collect, The American Heritage Dictionary of Language, at 362 (4th ed. 2000). Though it also means “[t]o call for and obtain payment of,” id., in the context of
The word “amount” that appears in the last sentence of the 911 Fee Parity Provision similarly supports that conclusion. “Amount” means “[t]he total of two or more quantities; the aggregate.” Amount, The American Heritage Dictionary of the English Language, 61 (4th ed. 2000). So in this context, we read a limitation on the amount of fees collected as a limitation on the aggregate of the fees collected. Given our directed perspective, this means we must consider, from the point of view of any “class of subscribers to IP-enabled voice services,” the total of the fees imposed or collected.
Having put certain terms within Section 615a-1(f)(1) under the microscope, we zoom out now for a bird‘s eye view of the entire provision and consider how these terms fit into it. While the last sentence emphasizes ensuring that fees for VoIP subscribers don‘t exceed fees for non-VoIP subscribers, the rest of Section 615a-1(f)(1) addresses what the “fee[s] or charge[s]” are for: “the support or implementation of 9-1-1- or enhanced 9-1-1 services.” So the point of the 911 Fee Parity Provision, then, is to ensure that VoIP and non-VoIP subscribers financially support 911 facilities to the same extent that they burden the hotline service.
Of course, since 911 is a phone service, it can be burdened only to the extent that phones are able to reach it. As a result, maximum concurrent call capacity—the greatest number of individual phone numbers, assigned to a single user, that can simultaneously make an outbound call to 911—is necessarily the unit that measures the amount of burden a user imposes, regardless of the number of individual phone numbers a user may have. For that reason, we think the text of Section 615a-1(f)(1) requires that any 911 fees non-governmental entities impose and collect must be based on maximum concurrent call capacity.
The 911 Districts disagree. They argue that the 911 Fee Parity Provision requires only that the base fee—think $1.00 from our example where the non-federal government entity charges VoIP customers $1.00 per individual telephone number and non-VoIP customers $1.00 per access line—not the total fee, for VoIP and non-VoIP subscribers be the same. The 911 Districts base their argument primarily on the words “fee” and “charge.” We are not persuaded.
First, the 911 Districts observe that the last sentence of Section 615a-1(f)(1) uses the singular form of “fee” and “charge.” By employing the singular form, the 911 Districts insist, Congress intended to regulate only the base fee, not the total fees imposed. In further support of this position, the 911 Districts rely on the dictionary definition of “fee“: “a fixed charge.” Appellants’ Br. at 13 (quoting Fee, Merriam-Webster Dictionary (online ed.), https://www.merriam-webster.com/dictionary/fee). They say that for a “fixed charge” to be the same, it necessarily must reflect the base fee or charge because “[o]nce the assessable units are considered, the fee is no longer a “fixed charge.” Rather, the 911 Districts reason, it changes depending on the number of assessable units.
But
In further support of their theory that “fee” refers to a base fee and not the total fees, the 911 Districts argue that the Commission‘s own use of the word “fee” shows that it understands the word to refer to the base fee. In support of this contention, the 911 Districts point out that the Commission prepares an annual report to Congress, under the NET 911 Act. See
But even assuming the Commission‘s use of the word “fee” in its NET 911 Act reports somehow necessarily means that the Commission understands the word “fee” in subsection 615a-1(f)(1) to mean solely base fee—a position that is contradicted by the very reason this case is on appeal—that does not bear on our independent duty at Chevron‘s first step to discern the plain meaning of the statute, regardless of what the Commission may think. Nor have the 911 Districts identified any reason to think that Congress meant to incorporate state usage into a provision of federal law intended to limit state authority to impose 911 fees. And neither the Commission‘s use of “fee” in its NET 911 Act report charts nor the states’ use of “fee” in their respective statutes, in any case, even purports to account for the rest of the statutory text of subsection 615a-1(f)(1)—especially the subsection‘s goal of ensuring VoIP subscribers not pay more than non-VoIP subscribers for imposing the same burden on the 911 system.
Besides the language of the 911 Fee Parity Provision, the structure of the NET 911 Act also suggests that subsection 615a-1(f)(1) seeks to equalize the aggregate fees VoIP and non-VoIP subscribers must pay to support the 911 system, based on the burden they place on it. Indeed, the NET 911 Act‘s structure reflects repeatedly its goal of ensuring equality of access to and financial responsibility for 911 benefits and burdens, between VoIP and non-VoIP subscribers, as it relates to the nation‘s phone systems. For example, Section 615a is specifically entitled, “Service provider parity of protection.” Within that section, three of the subsections also refer to parity: “Provider parity,”
And within Section 615a-1, subsection (b) is entitled, “Parity for IP-enabled voice service providers.” That subsection requires those with control over capabilities to provide 911 and enhanced 911 service to offer those capabilities to VoIP service providers “on the same rates, terms, and conditions” that they do for non-VoIP service providers.
All these parity provisions make even more sense in the broader context of the NET 911 Act. Section 942, when amended by the Act, required the development of a “national plan for migrating to a national IP-enabled emergency network capable of receiving and responding to all citizen-activated
Next—and in this case, finally—we consider the NET 911 Act‘s purpose: “[t]o promote and enhance public safety by facilitating the rapid deployment of IP-enabled 911 and E-911 services, encourage the Nation‘s transition to a national IP-enabled emergency network, and improve 911 and E-911 access to those with disabilities.” Pub. L. 110-283, 122 Stat. 2620. As we have explained, the 911 Districts’ reading of the 911 Fee Parity Provision to allow the imposition of higher total fees on VoIP subscribers than on non-VoIP subscribers, as long as the base fee is the same, would create a financial disincentive to potential VoIP providers and subscribers alike to invest in VoIP services. Contrary to Congress‘s stated desire to “facilitate[e] the rapid deployment of IP-enabled 911 . . . services,” id. (emphasis added), the 911 Districts’ proposed reading of the 911 Fee Parity Provision would disincentivize—and therefore delay—transition to VoIP services. That reading, of course, would impede Congress‘s stated purpose in enacting the Net 911 Act.
In sum, the “text of the statute, its structure, and its stated purpose” all direct a clear reading of the 911 Fee Parity Provision: the statute demands parity in the total fees assessed on VoIP and non-VoIP subscribers for 911 hotline services. Because the statute, its structure, and its stated purpose yield an incontrovertible answer, we need not also consult the legislative history here. For the same reason—“the intent of Congress is clear[—]that is the end of the matter,” and we do not proceed to Chevron step two. And so we find no reason to set aside the Commission‘s decision as arbitrary, capricious, or contrary to law.
IV.
For these reasons, we deny the petition for review.
PETITION DENIED; ORDER AFFIRMED.
Notes
Whether a traditional voice service, such as Integrated Services Digital Network (“ISDN“) Primary Rate Interface (“PRI“), that does not utilize Internet Protocol to transmit voice communications to or from the customer‘s premises is nonetheless interconnected Voice-over-Internet-Protocol (“VoIP“) service when provisioned over fiber-optic facilities to a customer that also has IP-compatible customer premises equipment (“CPE“).
Whether
47 U.S.C. § 615a-1(f)(1) preemptsAla. Code § 11-98-5.1(c) insofar as it requires customers of VoIP or similar services to pay a charge that exceeds the 911 charges applicable to the same class of subscribers to traditional voice services.