Kristin Brooks Hope Ctr. v. F.C.C., 09-1310

• Decision Date: 03 December 2010
• Docket Number: No. 09-1310,09-1310
• Citation: 626 F.3d 586,393 U.S.App.D.C. 217
• Parties: KRISTIN BROOKS HOPE CENTER, Petitioner v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.
• Court: U.S. Court of Appeals — District of Columbia Circuit

626 F.3d 586

393 U.S.App.D.C. 217

KRISTIN BROOKS HOPE CENTER, Petitioner

v.FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents.

No. 09-1310.

United States Court of Appeals,District of Columbia Circuit.

Argued Nov. 9, 2010.

Decided Dec. 3, 2010.

On Petition for Review of an Order of the Federal Communications Commission.

Barbara A. Miller argued the cause of the petitioner. With her on the briefs were Danny E. Adams and Ira T. Kasdan.

Pamela L. Smith, Counsel, Federal Communications Commission, argued the cause for respondent. With her on the brief were Catherine O'Sullivan and Robert J. Wiggers, Attorneys, U.S. Department of Justice, Austin C. Schlick, General Counsel, Federal Communications Commission, Jacob M. Lewis, Acting Deputy General Counsel, and Daniel M. Armstrong, Associate General Counsel. Robert B. Nicholson, Attorney, U.S. Department of Justice, and Richard K. Welch, Deputy Associate General Counsel, Federal Communications Commission, entered appearances.

Before: HENDERSON, Circuit Judge, WILLIAMS and RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge:

The Kristin Brooks Hope Center (the "Center") is a nonprofit organization that has operated suicide prevention hotlines since 1998. With the Center facing financial difficulties that risked causing the hotlines' disconnection, the federal Substance Abuse and Mental Health Services Administration ("SAMHSA") asked the Federal Communications Commission in December 2006 to reassign five of the Center's toll-free hotline numbers to SAMHSA. The FCC granted the request in part, temporarily reassigning three numbers in January 2007. That November, SAMHSA requested that the FCC make the reassignment of numbers permanent. The Center protested, but the FCC granted SAMHSA's request. The Center now argues that the FCC's decision to permanently reassign the numbers was "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). We agree.

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In 1998 H. Reese Butler founded the Center in the memory of his late wife, who had committed suicide while suffering from post-partum depression. The Center operates several toll-free suicide prevention hotlines that route callers to a trained crisis counselor in the caller's local area. The numbers at issue here, 1-888-SUICIDE, 1-800-SUICIDE, and 1-877-SUICIDA, were among the Center's earliest hotline numbers. Over time the Center has expanded to include many other numbers, including some targeted at particular at-risk groups, such as veterans, new mothers, and young people.¹ The Center's goal is to operate and publicize these hotlines; it does not run the counseling centers or train the counselors.

In 2006, the Center found itself in serious financial trouble. For some years, it had received funds as a subcontractor to the American Association of Suicidology, which in turn was funded by a government grant. The Center's funding dried up when the Association's grant expired in 2005. The Center eventually fell behind in payments to its then current phone service provider and was in default of payment to its former provider. (It appears to have had trouble only with 1-800-SUICIDE, evidently because usage on the other hotlines was much lighter.) In August 2006,Secretary of Health and Human Services Michael O. Leavitt wrote to the Chairman of the FCC to request that the FCC reassign 1-800-SUICIDE from the Center to SAMHSA, a subagency of HHS. Letter of Aug. 25, 2006. SAMHSA supports suicide prevention efforts, including operation of the National Suicide Prevention Lifeline (1-800-273-TALK), a hotline, not unlike those of the Center, connecting callers with crisis counseling centers. Because SAMHSA could operate the Center's numbers in parallel to its own, Secretary Leavitt argued that transfer would prevent disruption to the hotlines and the loss of life that might occur if the Center's service provider disconnected 1-800-SUICIDE.

In response, the Wireline Competition Bureau within the FCC granted a temporary reassignment of the three suicide prevention hotlines in January 2007. In the Matter of Toll Free Service Access Codes, 22 FCC Rcd 651 (2007). Under 47 U.S.C. § 251(e)(1), the FCC has plenary authority "over those portions of the North American Numbering Plan that pertain to the United States." The Commission's implementation of this authority includes its adoption of a rule stating that "[t]oll free numbers shall be made available on a first-come, first-served basis unless otherwise directed by the Commission." 47 C.F.R. § 52.111. Here the Bureau directed "otherwise." Given the ongoing dispute between the parties and the potentially tragic consequences of disruption, it found that "a deviation from the first-come, first-served rule is warranted in this extraordinary, emergency situation," and it ordered the requested transfer. 22 FCC Rcd 651 at ¶¶ 8, 11.

In November 2007 (and in additional letters over the next two years), SAMHSA requested that the FCC permanently reassign the suicide prevention hotlines, arguing that the hotlines are a crucial public health resource and that reversion to the Center risked another public safety emergency, given the Center's financial instability. The Center responded, repeatedly, that it had resolved its outstanding debts, engaged in a fundraising campaign resulting in $240,000 in cash reserves, and negotiated a new agreement with a phone service provider. It also argued that there was no current emergency warranting permanent reassignment. In October 2009, the FCC granted SAMHSA's request, permanently reassigning the suicide prevention hotlines. U.S. Dept. of Health and Human Services Substance Abuse and Mental Health Services Administration Petition for Permanent Reassignment of Three Toll Free Suicide Prevention Hotline Numbers, Toll Free Service Codes, 24 FCC Rcd 13022 (2009) (the "FCC Decision"). The Center appealed, arguing that the FCC's decision was arbitrary and capricious under 5 U.S.C. § 706(2)(A) and was an unconstitutional taking under the Fifth Amendment to the Constitution.

* * *

When evaluating agency action that is alleged to be arbitrary or capricious under 5 U.S.C. § 706(2)(A), our primary task is to ensure that the agency has "examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a 'rational connection between the facts found and the choice made.' " Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962)). The agency's explanation cannot "run [ ] counter to the evidence," id., and it must "enable us to conclude that the [agency's action] was the product of reasoned decisionmaking." Id. at 52, 103 S.Ct. 2856.

By way of background, we note that 47 C.F.R. § 52.111 is one of several FCC provisions governing the allocation of toll-free numbers. Absent the Commission's temporary reassignment, it appears that the hotlines would have gone into either "disconnect" or "suspend" status, and would either have returned to the Center's use or, after four or eight months, respectively, would have lapsed back into the general pool for reassignment. See id. § 52.103. Because of the Center's financial problems, of course, service for persons contemplating suicide might have been severely limited. (In "disconnect" status there would likely have been "an exchange carrier intercept recording." See id. § 52.103(a)(2). According to the phone service provider's lawyers, it would on termination of service have "post[ed] an outgoing message directing callers to call 1-800-273-TALK [the National Suicide Prevention Lifeline] for assistance." Joint Appendix 213.)

Explaining its permanent reassignment decision, the FCC said that its "overriding priority [was] the long-term stability of the Hotlines and, in turn, avoidance of another potential public safety crisis in the future." FCC Decision, 24 FCC Rcd at 13030 ¶ 14. To that end, it would "choose the entity [it] believe[s] is more capable of operating the Hotlines long-term." Id. It argued that SAMHSA was superior to the Center in both financial stability and quality of services. See id. at 13033 ¶ 21 (finding that SAMHSA will be the best provider of "financially stable, top-quality service for the long-term"). We think the FCC failed to provide a reasonable explanation on both counts.

In concluding that SAMHSA "best ensures the long-term financial viability of the Hotlines," id., the FCC relied on unsupported assertions regarding the Center's financial stability. The Center reported that it had accumulated $240,000 in cash reserves, which could cover two years of operations, and that it had reached over $1 million in existing and pledged assets through an expanded fundraising campaign. Letter from Danny E. Adams, C...