Nuvio Corporation v. Federal Communications Commission and United States of America, Verizon Telephone Companies and at & T Corporation, Intervenors

CORPORATION, Petitioner NUVIO COM-

FEDERAL COMMUNICATIONS and States

MISSION United

America, Respondents Companies AT Telephone and

Verizon Corporation, Intervenors.

& T 05-1346, 05-1248, 05-1345, 05-1347.

Nos. Appeals, Court of

United States of Columbia Circuit.

District

Argued Sept. 2006. argued Decided Dec. Blau the cause for Russell M. him were petitioners. on the briefs With 4, 2007. As Amended Jan. M. Bo- Richard M. Rindler Joshua beck. Counsel, Carr, M. Federal Com-

James Commission, argued the cause munications him respondents. With on the brief Keisler, Attorney Peter D. Assistant were Justice, General, Department U.S. Letter, Litigation Douglas Appellant N. McIntosh, Counsel, Special R. Coun- Scott Feder, Counsel, sel, L. General Samuel Commission, and Federal Communications Armstrong, M. and Daniel M. Jacob Lewis E. In- General Counsel. John Associate Counsel, gle, Deputy Associate General Joshi, Counsel, M. entered and Nandan appearances. Glover, Zacharia, E. Karen Les-

Michael Guerra, L. Owsley, Joseph R. David lie V. Lawson, Gary Phillips L. were on AT T Corporation for intervenors & brief Telephone Companies. David and Verizon appearance. Carpenter entered W. GINSBURG, Judge, Chief Before: KAVANAUGH, Circuit GRIFFITH Judges.

Opinion for the Court filed Circuit Judge Chief Judge GRIFFITH which capabilities same. But two additional of joins Judge and Circuit GINSBURG joins exception of expectations VoIP service undermine those KAVANAUGH try emergency five. to use footnote when callers allows services. VoIP service callers by Concurring opinion filed Circuit are called “non-native” choose what area Judge KAVANAUGH. example, living codes. For a customer GRIFFITH, Judge. Circuit the District of can use an area Columbia Petitioners, newly- of the anywhere country. code from in the Some telephone of Internet emerging technology (“IVPs”) interconnected VoIP service, of the Federal challenge an order service, also offer “nomadic” which allows (“Commis- Communications telephone a VoIP call to be made and “FCC”) only gave or them sion” can received from the user es- wherever already required days to do what (By a connection. tablish broadband con- telephone traditional service: providers of trast, telephone “fixed” service can emergency a local transmit 911 calls to dedicated, only used from a fixed con- pe- authority. deny their consolidated We office.) typically in a home or As nection— we conclude tition for review1 because be, may attractive these two features as adequately considered not the Commission each makes it difficult for feasibility only the technical and economic emergency the local callers the 911 deadline, necessary inquiries made they they expect upon rely. and which arbitrary capricious and against the bar designed Routers to direct 911 calls cannot decision-making, but also codes, recognize non-native area and un- required objectives the Commission telephone and wireless like traditional achieve. vice, yet are no means there available a easily determine the location of caller

I. IVPs, using interconnected VoIP service. many changes the One of the dramatic otherwise, required which were not to do brought Internet has telecommunica- (communica- trunks failed to use dedicated inter- development tions been switching sys- paths connecting tions two Protocol connected over Internet Voice tems, used to establish an end-to-end con- (“VoIP”) service, which allows a caller us- nection) routing calls to a set aside Internet connection to ing broadband (known emergency local call center as to and receive calls from other place calls “PSAP”) public safety answering point or using either or traditional callers routed 911 calls to administra- and instead Requirements telephone service. designed tive lines had been Providers, IP-Enabled First Re- Service to handle were not staffed port Proposed and Notice (documenting 1 n. 2 calls. Id. at 10246 10245, 10246 n. Rulemaking, 20 F.C.C.R. were various instances in which consumers (2005) (“Order”). 1, 2005 WL emergency help fi> contact after unable perspective, From a caller’s interconnected an interconnected VoIP dialing using is, part, for the most similar VoIP service service). resulting tragedies gave The rise service, and its telephone to traditional at issue. reasonably expect it to function the to the Order users tional, (collectively "petitioners”) have all Lightyear Corporation; Network So- 1. Nuvio Inc. Telecommunications, lutions, LLC; Primus petitioned for review. Inc.; Inc.; Lingo, Interna- i2 Telecom Commission, using technology known as Automatic previously had which (“ANI”) in- regulate pseudo- reluctant to this nascent or been Number Identification dustry hindering develop- ANI, for fear of necessary. if ANI “identifies the IP-Enabled, Services, ment, see, e.g., No- calling be used as a call party Proposed Rulemaking, tice § 20.3. A pseu- back number.” 47 C.F.R. ¶ 1, 4863, 4864 WL number, consisting do-ANI is of the “[a] ” (2004) (“Notice Proposed Rulemaking ANI, digits that not same number of as ”) (noting or “NPRM that IP-enabled Numbering a American Plan tele- North “in developed services had an environ- phone directory number and be used many regula- that is free of of the ment place convey special of an ANI to mean- tory obligations applied to traditional local routers ing.” Id. Because selective services”), decided that telecommunication capable delivering are not non-native required an immediate solution was PSAP, pseudo-ANIs numbers to a local “discharge[] statutory the Commission’s temporarily are used to mask the true promote nation- obligation an effective with a local number to facilitate number emergency system,” wide access 911/E911 by processing the local selective router for ¶36.2 Order, 20 F.C.C.R. at 10266 delivery to the id. The PSAP. See Com- Commission thus ordered that stringent requiring mission was less the days within of the effective date use of Automatic Location Information Order,3 an interconnected VoIP (ALI), provides emergency which an dis- calls, all vider must transmit as well patcher geographic with the location of the a call back as number and the caller’s caller, yet technologically it is not because call, “Registered Location” for each automatically to detect the location feasible PSAP, designated the statewide default only of nomadic callers. The Order answering point, appropriate or local therefore, requires, that IVPs ensure that emergency authority that serves the registered 911 calls are routed Registered caller’s Location. location of the actual each 911 caller. ¶ (citations omitted). Id. 37 ¶46. Order, See 20 F.C.C.R. at 10271 IVPs, however, effect, provide way must a all requires the Order IVPs, update registered consumers to their loca- including those that offer nomadic codes, timely in a tions fashion. See id. These using non-native area ensure their are reach local interconnected IVP 911 calls must also be users able to emergency making through services when 911 calls. routed Wireline E911 net- so, To do IVPs must route all 911 calls work.4 See id. at 10269 40. Order, (citations

2.E911 is a more advanced version of the 20 F.C.C.R. at 10251 omitted). system, merely traditional 911 which routes PSAP, call to the local because July 3. This Order became effective on provides it additional information about the 43,323, 43,323 Fed.Reg. (July see 70 caller: 2005) (to 9.5), at 47 codified C.F.R. systems through E911 route 911 calls thereby requiring compliance by November geographical- use of a Selective Router to a 28, 2005, id. ly appropriate PSAP based on the caller’s provides existing location. E911 also the call taker “The core of the wireline E911 net- number, dedicated, redundant, highly with the caller's call back referred work is a reli- (Wireline Numbering to as Automatic Information able wireline network E911 Net- and, cases, (ANI), work), many location infor- which is interconnected with but capability separate [public largely mation —a referred to as Auto- from the PSTN (ALI). telephone matic Location Identification switched network].” unexplained departure service is an specif- not dictate a did The Commission ac- precedent the Commission’s made without manner for IVPs ic Instead, adequate regard noted to economic and techno- cess. by satisfy requirements these Petitioners fault logical could obstacles. also E911 net- interconnecting directly with the requiring that IVPs connect to exchange local through incumbent failing work E911 network but Wireline ¶ 39, (“ILECs”), see id. at 10268 carriers corresponding duty on impose ILECs to interconnecting indirectly through permit Finally, petition- this connection. ¶ 38, by any see id. at 10267 or party, third ers contend that the Commission did not access, in E911 other solution that results give adequate notice of the substance of Finally, requires that id. the Order see arguments consider these Order. We notify providers ev- interconnected VoIP wanting. in turn and find each customer, existing, about “the ery new and which E911 service circumstances under A. The decision to require FCC all through the intercon- may not be available including providers no- IVPs — in some service or nected VoIP madic, non-native VoIP service—to to traditional

way by comparison limited provide E911 access within 120 ¶ 10272 48. Id. at service.” days. II. Petitioners assert that the Commis disregarded sion record evidence that the Administrative Procedure Under Act, 120-day chal- deadline was not feasible governs our review of this because which way that no demonstrated to over petitioners’ burden is to show there was lenge, practical come the technical and obstacles “arbitrary, capricious, an the Order discretion, implement not in to E911 for of no or otherwise abuse law,” madic, non-native service. But this accordance with see 5 U.S.C. VoIP 706(2)(A). argu- argument fails in the face of substantial They rely upon three First, peti- contrary record evidence that the nation’s ments to meet that burden. had 120-day largest provider interconnected VoIP tioners assert Order’s already a technical solution to provide procured E911 service deadline for IVPs nomadic, The Commission not- non-native meet the deadline.5 to their users of VoIP gen- clearly on it in its briefs or at oral 14. This network is relied fact, clarify argument. asked to operated by In when erally implemented incum- appropriate (''ILECs”). deadline was even if whether the exchange Id. bent local carriers feasible, was not counsel for the Commis- it concurring colleague 5. Our reads No, replied, Your Honor. The sion "No. requirement suggest that "the 911 would be was believed that the deadline justified VoIP could feas- even if not something aggressive, it was but Concurring ibly 120-day deadline.” meet the met, recognized the need to could be and it language Op. quotes But no at 310-11. he get try parties get going, to to force these that, stating sug- the Order find none Transcript Argument at moving,” of Oral gesting that. The Order makes reference (D.C.Cir. Corp. Nuvio No. 05-1248 statutory duty to consider the Commission's 2006). we "cannot sustain Sep.12, Because important safety, element a factor that is an action on some other ba- [the Commission's] analysis, mention,” but we do not think these in our did not Point [Commission] sis suggestion NLRB, (D.C.Cir. support that the references can F.3d Park Univ. v. 120-day justified 2006) (citing Chenery Corp., Commission has ever U.S. SEC v. 194, 196-97, any authority the basis of to ban S.Ct. 91 L.Ed. 1995 deadline on (1947)), outright. We note that if such we need not consider whether VoIP service exists, justify would the deadline. authority concerns alone the Commission has Intrado, automatically. focus third-party competitive location Petitioners’ ed that carrier, already pre- was exchange compo- local experimental on the failed access technological solution that pared to offer ignores messaging nent the successful requirements, even for met the Order’s trial that component of the demonstrated nomadic, non-native service. providers of possible. E911 access was in fact at 10267 At the 20 F.C.C.R. trial, Qwest recounting the results of this promulgated and in time the Order was that, rather than failed using noted deadline, Intrado advance access, experimental could IVP already offering a service that “en- was using a E911 service combination delivery ables the of a VoIP subscribers Qwest’s tarriffed access to the Wireline address and call back number to the [sic] party support E911 network and third ..., relevant geographically [PSAP] most vices.6 Ex Parte Letter from C. O’Con- thereby accommodating capa- the nomadic nell, Dortch, FCC, Qwest, to M.H. WC bility inherent in their service.” Ex 2005). (Apr. Vonage Docket No. 04-36 Intrado, Boyd, Parte Letter from M. successfully had also tested E911 access Dortch, M.H. Docket No. 04-36 WC Rhode Newport, for nomadic VoIP Is- 25, 2005); Ex (Apr. see also Parte Letter Ex from land. See Parte Letter W.B. Intrado, Dortch, Boyd, M. to M.H. Wilhelm, Dortch, FCC, Vonage, to M.H. FCC, 19, (Apr. Docket No. 04-36 WC 2005). 9, (May WC Docket No. 04-36 Pe- 2005). Vonage, largest the nation’s VoIP upon titioners seize two elements of this Verizon, provider, agreed with the ILEC argue to that it an Newport test unrelia- E911 controlling the Wireline network First, for the ble basis Order. there territory, its it would use Intrado’s only one in small and PSAP Rhode Island service “to deliver both caller’s location this test could not critical so address the call to back number routing wrong calls to the issue PSAP. personnel placed vices for 911 calls Second, the state and not an ILEC owns throughout territory,” [28-state] Verizon’s the selective router and so there is no 4, do so November would before providing issue of access to the E911 Wire- 28, the November 2005 deadline. Ex line network. Petitioners no have doubt Wilhelm, Vonage, Parte Letter from W.B. provide identified elements in this test that Martin, FCC, to K.J. WC Docket No. 04- 2005). 9, (May grounds distinguish some them from demands, general what the Order but the The Commission also relied on IVP tri- test, success of the Rhode Island combined als that demonstrated E911 access was with the substantial deference we owe the nomadic, possible non- predictive judgments, FCC’s overcomes Qwest example, native VoIP service. For See, petitioners’ objections. e.g., Int’l Vonage conducted a test of E911 Ladies’ v. Dono- Garment Workers’ Union King County, Washington. access in This van, F.2d experimental test included an means both (D.C.Cir.l983)(“Predictive judgments messaging compo- PSTN access and calling party’s agency’s nent used to deliver the areas that are within the about provide connectivity Positioning provider. 6. To for its 'no- Center This is users, provider madic'' VoIP the VoIP can consistent with the NENA 12 standard. purchase component dedicated access O’Connell, Qwest, Ex Parte Letter from C. Qwest’s the form of tarriffed E911 service Dortch, FCC, WC M.H. Docket No. 04-36 and, addition, they purchase can the E2 12, 2005). (Apr. (the messaging component) interface from a of interconnected are enti- VoIP service expertise” field of discretion automatically determine the location of treat- deferential” “particularly tled users without end users’ active Commc’ns, their end ment.); Inc. see also Charter ¶46. Instead, (“That cooperation,” id. (D.C.Cir.2006) 460 F.3d determined that that the FCC is judgment predictive is a only registered location must defer.”). we to make and to which entitled making of the nomadic VoIP user a 911 that the submis- argument Petitioners’ id., call, see and called for comment on the Number Emergency the National sion of automatically determining feasibility of (“NENA”) undermines Association geographic location of nomadic VoIP 120-day conclusion that the Commission’s ¶¶ users, id. at 10276-77 56-57. see ac- also fails to deadline was reasonable argument Petitioners’ that the Commis- give count for the deference overlooked the cost of im- sion economic judgments. NENA agency’s predictive plementing the Order’s deadline national access to that “the bulk of opined highlights that our task under the arbi- days, could reached within [E911]” trary capricious or standard is to deter- could national access” “[f]ull noted that but only agency’s mine whether an decision Ex 4-6 months.” Parte take “another “ on a consideration of the rele- ‘was based Hobson, NENA, to M. from J.R. Letter vant factors and whether there has been a Dortch, (May Docket No. 04-36 WC ” judgment,’ clear error of Motor Vehicle added). 2005) (emphasis Commis- U.S., Ass’n Inc. v. State Farm Mfrs. authority its acting well within sion was Co., 29, 43, Mut. Auto. Ins. 463 U.S. judg- expertise predictive to make use (1983) (quoting 77 L.Ed.2d 443 S.Ct. that if the when it concluded “bulk ments Transp., Inc. v. Ark-Best Bowman achieved with- of national access” could be Inc., 281, 285, System, 419 95 Freight U.S. to use that days, in 120 it was reasonable' (1974)). 438, 42 L.Ed.2d 447 Peti- S.Ct. period. time countervailing tioners overlook a interest the petitioners’ must also address We must consider and the Commission by failing claim that the Commission erred respect public threat we must —the technological the distinguish between When, safety. as is the case with the or non-native by obstacles faced nomadic agency the Congress given has fixed, by and those faced VoIP regulate a market such as responsibility They providers. allege native Com- industry that it the telecommunications technologi- on the mission based Order important pro- repeatedly deemed capabilities cal associated with fixed VoIP safety, agency’s judg- tecting public unique chal- service and overlooked the regu- cost of its ments about the economic nomadic, lenges posed by non-native VoIP duty to lations must take into account its But the fact con- service. Commission public. The is protect technological challenges unique sidered the safety by required public to consider both Order, VoIP, 20 at act, of nomadic see F.C.C.R. Act enabling see Communications its (“so (noting [nomadic § § 10259 25 that “certain as to 47 U.S.C. 151 of 1934 pose significant available, services ... portable] possible or make so far as [a] implementation challenges”), and radio communication world-wide wire at challenges, adequate of those did not facilities reason- taking stock service with charges purpose the actual ... require that IVPs determine able of for through property moting users because it location of nomadic VoIP of life radio commionica- the use tvire and always technologically feasible for “is 308

tions”) added), relevant factors and has (emphasis and the Wire- has considered Safety Act for its conclu- Communication and Public articulated reasoned basis less (“shall Farm, 42-43, § 615 en- of 1999 47 U.S.C. sion. See State U.S. courage support efforts States in this light, 103 S.Ct. 2856. When viewed emer- deploy comprehensive end-to-end agree 120-day cannot that the deadline we infrastructure and gency communications arbitrary capricious. or programs, based on coordinated statewide challenge final to the 120- Petitioners’ seamless, including ubiquitous, reli- plans, represents that it an unex- day deadline is networks able wireless telecommunications plained departure long-standing from service”). and enhanced wireless 9-1-1 precedent. precedent, argu- so the weighed public The Commission here safe- was goes, ment established when FCC ty compliance against the economic cost gave more time for wireless and satellite that, and found “[w]hile phones technologies to im- other new amount days aggressively is an short plement capabilities aggres- than the comply of time in which to with these imposed sive deadline it has on the new requirements, the threat to if telephone market. Petition- service delay great is too and demands further right agency departing ers are that an near immediate action.” precedent provide principled “must at 10266-67 (emphasis add- change explanation direction.” ed). Nat’l Black Media Coalition v. reasonably Because the Commission has (D.C.Cir.1985); F.2d see also Air- nomadic, determined that non-native VoIP FAA, Coip. mark 758 F.2d feasible, technologically E911 access is (D.C.Cir.1985). surely But different tech- any argument period the time re- about may reasonably nologies bear different quired implementation nothing more regulatory apparent burdens. It is not quarrel than a over relative costs and ben- regulation that the or wire- us satellite case, efits. the Commission has phones precedent reg- less is clear for the weighed “aggressive” of an imple- the cost technology of information ulation mentation scheme—a deadline— providers. No doubt each involves tele- lives, against in human the cost and found communications, phone but the differences public safety. favor of See id. at 10266 phone between satellite and wireless (“We requirement 36 find that this most vice on the one hand and service on appropriately discharges the Commission’s the other are such that the Commission statutory obligation promote to effec- previously classify refused to IP-en- tive nationwide ac- 911/E911 abled services as telecommunications car- system by recognizing cess the needs of agency to give exper- riers. We deference community get to call distinguish prior tise used to its cases back and location information and balanc- present from controversies. See PPL ing existing against those needs techno- Montana, Bd., Transp. LLC v. logical limitations of interconnected VoIP Surface (D.C.Cir.2006) (“[T]he 1240, 1247 437 F.3d providers.”); Public Citizen v. Au- cf. chter, 1150, (D.C.Cir.1983) [agency’s] attempt distinguish prior to 702 F.2d terse, cases, while is entitled to deference.” (“Delays might altogether that reason- Mgmt., regulations (quoting Inland Lakes Inc. v. sphere able of economic (D.C.Cir.1993))). NLRB, 799, F.2d are less tolerable human are at when lives stake.”). if regulatory ap- not disturb its determi- Even the Commission’s We where, here, proach nation as the Commission to these other telecommunications major precedent cooperating a for VoIP ILECs were with no- provided services “increasingly offering madic IVPs and a rea- service, provided the Commission that solutions allow VoIP a different explanation adopting for soned directly to interconnect to the Wireline that “the by expressly noting approach tariff, contract, through E911 network aor compo- indicates that the network record Order, combination thereof.” 20 F.C.C.R. developed that have to make nents been evidence, at 10268 39. There is record can also be used for possible wireless E911 BellSouth, example, Qwest, for E911, imple- make the which should cooperating Verizon were with to IVPs far process simpler and less ex- mentation provide access to the E911 net- Wireline upgrades than the initial neces- pensive See, Ex e.g., work. Parte Letter from C. E911.” sary for wireless O’Connell, Dortch, FCC, Qwest, to M.H. ¶ 53; Ex Parte F.C.C.R. at 10274 see also 12, 2005); Ex (Apr. WC Docket No. 04-36 Wilhelm, Vonage, Letter W.B. Ross, BellSouth, Parte Letter from B.L. FCC, Martin, WC Docket No. 04-36 K.J. Dortch, M.H. Docket No. WC 04-36 2005) 9, (stating Vonage “does (May 12, 2005); (May Ex from K. Parte Letter that it will face the same anticipate Grillo, Verizon, Dortch, FCC, to M.H. WC E-9-1-1 [wireless] issues that have made 2005). 11, (May Docket No. 04-36 Al- daunting challenge”). such a though suggest there is some evidence to acknowledge that petitioners Because always cooper- that a few ILECs were not regulation necessary, type some of E911 ative, Br. at 10 Reply see Petitioners’ n. petition Br. at see Petitioners’ ample significant there was evidence of is, essence, challenge only a review increasing cooperation ILEC regulatory where the FCC has drawn and, view, in the Commission’s “line,” re- previously and we have any impose removed cooperation need “wide dis- peatedly given the Commission duty permit connectivity. upon ILECs admin- cretion to determine where draw judgment wisely That leave alone Corp. istrative lines.” AT & T regarding the actions of “predictions as (D.C.Cir.2000). Based on F.3d regulated precisely type entities are evidence, the record the demonstrated judgments routinely that courts policy concerns, and our deference to the quite correctly leave to administrative predictive judgments, we Commission’s State agencies,” Public Util. Comm’n conclude that the dead- Order’s (D.C.Cir. FERC, 24 F.3d Cal. v. arbitrary capricious. neither nor line was 1994). requirement B. The TVP con- FCC notice and comment C. The FCC’s nectivity E911 net- to Wireline cedures. corresponding work without a obli- argument final faults the Petitioners’

gation on ILECs. Pro- Commission because the Notice of to utilize requires The Order that to the posed Rulemaking led generally E911 network the Wireline tentative proposed lacked rules or even ILECs, it failed to im by owned the but APA notice of requires conclusions. The that pose duty on ILECs to of the “either the terms or substance subjects argue description Petitioners that this differ or a of the posed access. rale 553(b)(3). 5 ent treatment of the ILECS was error. and issues involved.” U.S.C. generally entitled to simple public no error for the reason the We find “Since data on that their views and relevant that the record contained evidence submit 310 requirement. the notice must be sufficient meet the See 20

any proposals, (2005). 10,245 fairly apprise parties up- interested of the F.C.C.R. The Court involved, specify it need not holds the Order the issues but because Commission reasonably that every precise proposal agency] predicted which VoIP [the ultimately (including providers) rule.” Action nomadic could adopt as a VoIP 120-day 564 F.2d deadline Children’s Television meet the and the Order (D.C.Cir.1977) (internal justified I quotation explained. was otherwise omitted). agree analysis join marks and citations The Com- the Court’s fairly apprised parties opinion. mission the and the public by of the issues covered the Order. candidly recognized, The FCC also how- view, In our the Commission notified the ever, potential the difficulties that nomadic NPRM, purpose, of the see parties in meeting would face ¶ (“how at 4900 56 best to achieve acknowledged deadline—and that objectives policy ensuring our the avail- “aggressively the deadline was short.” Id. ability capability”), of 911 and E911 the ¶ ¶ 10,266-10,267 37; at see also id. (“the extent, see id. effectiveness of alter- (“[W]e that recognize certain VoIP ser- form, regulation”), natives direct the see pose significant vices E911 implementation (“technological flexibility at 4901 56 id. so challenges.”). The FCC nonetheless said that our allow development rules for the delay if “the threat technologies”), new and innovative and the great further is too near demands (“time frame, time see id. frame in Id.; immediate action.” see also FCC which we should consider 911 and E911 (“[T]he Brief FCC made a reason- context”) any in IP regulatory issues the judgment any able possible risk that potential regulation. gave The NPRM expedited implementation posed parties a opportuni- “interested reasonable providers’] viability [VoIP commercial was ... ty present relevant information” on outweighed by growing public threat to the central issues. WJG Tel. Co. v. safety providers] if [VoIP continued to (D.C.Cir.1982) (internal 675 F.2d systematically route 911 calls in a unsatis- omitted). quotation marks and citations (“Given manner.”); factory id. at 26 Indeed, many parties of the submitted tragedies already that have resulted from aspects comments on all of VoIP access. service, inadequate given VoIP 911 projected tenfold increase in the number

III. future, VoIP 911 calls the near reasons, foregoing petition For the reasonably Commission concluded that the for review is denied. public any delay could not tolerate further implementation ordered.

So (“[G]iven vice.”); profound public id. KAVANAUGH, Judge, weighing rapid Circuit concerns favor of here, deployment petitioners concurring. have not showing come close to the balance the Federal Communications struck the Commission was unreason- required voice-over-internet- able.”). (VoIP) protocol providers to ensure ade- quate requirement separately only express my 911 connections—a al- I write ready imposed agreement sugges- on wireline and wireless with the FCC Order’s a telephone providers. requirement The FCC set 120- tion that the 911 would be day justified providers deadline for the VoIP even if could not

311 a result the deadline. occur as of violent crime or feasibly meet Revision, See, e.g.; stat- accidents. of the the FCC the Com- my judgment, possesses Rules to Compatibility mission’s Ensure authority, which the Commission utory 911 exercise, Emergency Calling with Enhanced reasonably choose to ad- ¶5 18,676, 18,679 11 Systems, F.C.C.R. safety by banning public dress the threat (1996)(911service proper- “saves lives and selling until providers from voice service ¶1 Order, 10,246 ty”); 20 F.C.C.R. at n.2 can 911 adequate ensure the (describing involving recent incidents au- greater And the FCC’s connections. burglary and home where children needed sales of service with- thority to ban voice ¶ 10,248 id. 4 help); immediate at n.ll in- capability necessarily 911 adequate out (citing why comments that 911 ser- explain power sales cludes the lesser to ban such critical and vice is that describe various days. in 120 beginning service); involving incidents 911 Revision part in Congress established the FCC of the Commission’s Rules to Ensure Com- promoting safety of of life purpose “for the patibility Emergency with Enhanced 911 through the use of wire and property and Calling Systems, 17 8482 F.C.C.R. § 47 151. radio communications.” U.S.C. (2002)(considering 4 911 issues for vic- Through the Wireless Communications violence). tims of domestic Safety Congress Act and Public 911 Adequate important, service is 911 charged ensuring the FCC moreover, quickly for our Nation to re- country. throughout is available the spond to terrorist attacks or natural disas- (codified 106-81, No. 1286 Pub.L. Stat. 10,247- ters. See F.C.C.R. U.S.C.). of 47 at scattered sections ¶4 (“911 10.248 service is critical to our ... “[t]he Act instructs Commission ability to a respond nation’s host designate 9-1-1 as the universal shall 10,249 crises”); (citing id. at 6 n.16 Dale telephone emergency number within Report Hatfield, A N. And On Technical for reporting United States Operational Impacting The Provi- Issues requesting appropriate authorities 911 Services sion Of Wireless Enhanced 251(e)(3). § 47 U.S.C. Five assistance.” (“the (2002)); Report tragic iiat Hatfield later, years Congress EN- enacted September growing events of 108-494, Act. Pub HANCE 911 L. No. dependence on serve networks[] wireless (2004) (codified Stat. at 47 U.S.C. emphasize importance to further 942). Act, § In that found that Congress in general, in E911 and wireless of our homeland “for the sake Nation’s particular, proper- to the of life and public security safety, a universal (time- ty security”); homeland id. at 15 (911) that emergency telephone number activity to call of ly response suspicious enhanced with most modern and state- “could make difference between capabilities of-the-art telecommunications attack”); foiled or successful Recommen- possible all citizens should available to Independent Panel Review- dations of the of the regions all Nation.” Id. on ing Impact of Hurricane Katrina Congress made clear that “enhanced 911 Networks, of Pro- Communications Notice priority.” national Id. high Rulemaking, posed ¶¶ indicate, (2006) As these statutes as the FCC (summarizing proposed 16-17 orders, prior recognized adequate and as the dur- ways to ensure 911 service disasters); Report record before ing natural Final cf. demonstrates, ceeding 911 service saves At- the National Commission on Terrorist (2004) upon helps prevent injuries lives and or reduce the United tacks States of 911 in (discussing importance emergen- attacks);

cy responses to terrorist U.S. Report Representatives,

House Of Final Bipartisan

Of Committee To The Select

Investigate Preparation And Re- For

sponse To Hurricane 163-64 Katrina

(2006) (inoperability impede of 911 can response services to natural

disasters). sum, the evidence establishes that

adequate 911 is vital person- to the security

al of American citizens and the security

homeland of our Nation. The authority

broad and 911 Con-

gress granted the FCC therefore in- authority prevent providers

cludes the selling voice service that lacks ade-

quate capability.

BAKER & HOSTETLER

LLP, Appellant

UNITED STATES DEPARTMENT COMMERCE, Appellee.

OF

No. 05-5185. Appeals,

United States Court of

District of Columbia Circuit.

Argued Sept. 2006.

Decided Dec.

Case Details

Case Name: Nuvio Corporation v. Federal Communications Commission and United States of America, Verizon Telephone Companies and at & T Corporation, Intervenors

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 4, 2007

Citation: 473 F.3d 302

Docket Number: 05-1248, 05-1345, 05-1346, 05-1347

Court Abbreviation: D.C. Cir.