Nuvio Corp. v. F.C.C., 05-1248.

• Citation: 473 F.3d 302
• Decision Date: 15 December 2006
• Docket Number: No. 05-1346.,No. 05-1248.,No. 05-1347.,No. 05-1345.,05-1248.,05-1345.,05-1346.,05-1347.
• Parties: NUVIO CORPORATION, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Verizon Telephone Companies and AT & T Corporation, Intervenors.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 302

473 F.3d 302

NUVIO CORPORATION, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents Verizon Telephone Companies and AT & T Corporation, Intervenors.

No. 05-1248.

No. 05-1345.

No. 05-1346.

No. 05-1347.

United States Court of Appeals, District of Columbia Circuit.

Argued September 12, 2006.

Decided December 15, 2006.

As Amended January 4, 2007.

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 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 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 WL 1323217 (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 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 WL 439260 (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

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 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 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 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 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...