NATIONAL ASSOCIATION OF REGULATORY UTILITY COMMISSIONERS, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Vonage Holdings Corporation, Intervenor
No. 15-1497
United States Court of Appeals, District of Columbia Circuit.
Argued February 8, 2017 Decided March 24, 2017
851 F.3d 1324
Matthеw J. Dunne, Counsel, Federal Communications Commission, argued the cause for respondents. With him on the briefs were Robert B. Nicholson and Sean Sandoloski, Attorneys, U.S. Department of Justice, Jonathan B. Sallet, General Counsel, Federal Communications Commission, Dаvid M. Gossett, Deputy General Counsel, and Richard K. Welch, Deputy Associate General Counsel. Jacob M. Lewis, Associate General Counsel, Federal Communications Commission, entered an appearance.
Before: GARLAND, Chief Judge, and HENDERSON and ROGERS, Circuit Judges.
PER CURIAM:
This petition challenges the Order of the Federal Communications Commission authorizing interconnected Voice-over-Internet-Protocol service providers (“I-VoIPs“) to obtain North American Numbering Plan telephone numbers directly from the Numbering Administrators rather than through intermediary local phone service numbering partners. Numbering Policies for Modern Communications, 30 FCC Rcd. 6839 (2015) (“Order“). The National Association of Regulatory Utility Commissioners (“NARUC“) challenges the Order, contending that the Commission has effectively classified I-VoIP service as a Title II telecommunications service, or acted arbitrarily by delaying a classification decision or by extending Title II rights and obligations to I-VoIPs in the absence of classification. Because NARUC fails to show that it has standing to challenge the Order, the court lacks jurisdiction and the petition is dismissed.
I.
The Communications Act, as amended by the Telecommunications Act of 1996, defines two mutually exclusive categories of communication services: “telecommunications service” and “information service.”
In 2005, the Commission began granting waivers of its rules to permit I-VoIPs, including Vonage Holdings Corporation, to “obtain numbers directly from the Numbering Administrators” without a carrier partner. Order ¶ 4. I-VoIPs that received direct number access through waivers had to “process[ ] port requests directly rather than going through a LEC.” In re Administration of the North American Numbering Plan, 20 FCC Rcd. 2957, 2962 (2005), at ¶ 9. For I-VoIPs that did not receive waivers, the regulations, beginning in 2007, imposed portability requirements where “both an interconnected VoIP provider and its numbering partner [ ] facilitate a customer‘s porting requеst to or from an interconnected VoIP provider.” In re Telephone Number Requirements for IP-Enabled Service Providers, 22 FCC Rcd. 19531, 19532, 19548-49 (2007), at ¶¶ 1, 30, 31, 32, aff‘d Nat‘l Tel. Coop. Ass‘n v. FCC, 563 F.3d 536 (D.C. Cir. 2009).
The Order revised the regulations to allow I-VoIPs, without state certification, to “obtain telephone numbers directly from the Numbering Administrators, subject to several conditions designed to minimize number exhaust and preserve the integrity of the numbering system.” Order App. C ¶ 3. Following a six-month trial period that demonstrated “there are no technical barriers preventing interconnected VoIP providers from accessing numbering resources directly,” Order ¶ 4, the Commission concluded direct access would “facilitate innovative technologies and services that will benefit both consumers and providers, and further the Commission‘s recognized pro-consumer, pro-competition, and public safety goals,” id. ¶ 2. The Commission thereby allowed number access “directly to interconnected VoIP providers, without regard to whether they are [common] carriers,” id. ¶ 78, noting that it had yet to classify “interconnected VоIP services as either telecommunications services or information services,” id. ¶ 79 n. 282. The revised regulations continued to ensure that users of I-VoIP services would obtain the benefits of local number portability, regardless of whether the I-VoIP provider оbtained numbers directly or through a carrier partner. Id. ¶ 55.
The Commission rejected NARUC‘s argument that its exclusive authority over numbering under
NARUC petitions for review of the Order.
II.
“[A]n association has standing to bring suit on behalf of its members when [ ] its members would otherwise have standing to sue in their own right; [ ] the interests it seeks to protect are germane to [its] purpose; and [ ] neither the claim asserted nor the rеlief requested requires the participation of individual members in the lawsuit.” Hunt v. Wash. State Apple Advert. Comm‘n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); Pub. Citizen, Inc. v. Nat‘l Highway Traffic Safety Admin., 489 F.3d 1279, 1289 (D.C. Cir. 2007). So, to establish standing under Article III, NARUC must demonstrate that: (1) at least one of its members was injured in fact, meaning an “actual or imminent, not conjectural or hypothetical” injury; (2) the injury was cаused by the Order; and (3) the court can redress the injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted). Where, as here, NARUC members are not directly regulated by the challenged agency action, standing is “substantially more difficult to establish.” Id. at 562, 112 S.Ct. 2130; see Pub. Citizen, Inc., 489 F.3d at 1279. Furthermore, “[b]are allegations are insufficient [ ] to estаblish a petitioner‘s standing,” and where that standing is not self-evident, the petitioner in its opening brief “must support each element of its claim to standing by affidavit or other evidence.” Sierra Club v. EPA, 292 F.3d 895, 898, 899 (D.C. Cir. 2002) (quotation omitted); Scheduling Order 2 (Feb. 24, 2016) (citing D.C. Cir. Rule 28(a)(7)). Although the court sua sponte may seek supрlemental submissions to satisfy itself that the petitioner has Article III standing, see American Library Association v. FCC, 401 F.3d 489, 494 (D.C. Cir. 2005), no supplemental submission is needed here.
Although NARUC bears the “burden of proof ... to show a substantial probability that it has been injured,” Sierra Club, 292 F.3d at 899 (quotation omitted), NARUC does not address standing in its opening brief beyond a single sentence, asserting without еlaboration that “the Order undermines its members’ authority directly and indirectly.” Pet‘r‘s Br. 17. In its Reply Brief, NARUC states standing is “evident” from its opening brief, Reply Br. 12, because the Order “impacted” state commissions’ ability to carry out “tasks central to a federal scheme,” id. at 15. Essentially, then, NARUC maintains its standing is self-evident and consequently it is relieved of the obligation of present affidavits or other evidence in support of standing. See Sierra Club, 292 F.3d at 899. NARUC offers two theories of standing in its Reply Brief but neither is persuasive, and its standing is not self-evident.
First, NARUC maintains that thе Commission‘s actions injure its members’ “designated role in Congress[‘s] plan,” Reply Br. 19, by allowing I-VoIP service providers to obtain telephone numbers without
Moreover, although NARUC asserts the Order diminishes its members’ regulatory authority, it never ties that claimed harm to the regulatory changes made in the Order. Specifically, NARUC states that I-VoIP‘s “unresolved [classification] status” undercuts its members’ authority to “arbitrate interconnection disputes between telecommunications carriers,” Pet‘r‘s Br. 13; Reply Br. 14 n. 4 (citing
Second, NARUC maintains its members are injured by the “Order‘s raison d‘etre—which is to permit I-VoIP providers the option to bypass either becoming State-certified or dealing with a State-certified carrier.” Reply Br. 12 (citing Order ¶ 21). It maintains that its members suffered an injury because “the Order substitutes a necessarily less direct and arguably more burdensome procedure for States” to carry out their role in “actively polic[ing] utilization (to avoid State area code exhaustions).” Reply Br. 13; see Oral Arg. Tape 6:15-6:50; 9:28-9:40. The Commission has delegated to state commissions the authority to “resolve matters involving the intro-
Accordingly, because NARUC has failed to demonstrate an injury-in-fact, and thus failed to establish Article III standing to challenge the Order, the court lacks jurisdiction and the petition for review is dismissed.