Safety Check!
DC Circuit Upholds FCC’s E-911 Rules

On December 15th, the DC Circuit Court issued an opinion denying the petition for review of the FCC’s Order that applied E911 obligations to providers of “interconnected VoIP services” in Nuvio v FCC. While the appeal ultimately forced the FCC to recant its initial decision that would have required providers to disconnect service to certain legacy customers, the Court ultimately upheld the FCC rules, including the 120-day implementation deadline.

In upholding the FCC, the overall thrust of the Court’s opinion is to give the FCC wide discretion in determining how to enforce public safety requirements, and to avoid second guessing as long as the agency has given some reasonable explanation for its choices.

The Court recognized that the FCC’s VoIP E911 requirements present unique challenges to interconnected VoIP service providers (“IVPs”) that enable customers to use the service nomadically and also to obtain non-native telephone numbers. However, the Court observed that the FCC did not dictate a specific technological solution for IVPs to provide E911, but instead allowed them to directly interconnect with ILECs, indirectly interconnect through a third party, or undertake any other solution that would result in E911 access consistent with the FCC’s rules. The Court addressed and rejected the three primary arguments made in the petition for review: that the FCC’s selection of a 120-day deadline was arbitrary and unsupported by the record, the lack of ILEC obligations to provide direct access was in error, and the FCC’s notice and comment procedures did not meet the requirements of the Administrative Procedure Act (“APA”).

In examining Petitioners’ claims that the 120-day deadline was arbitrary, the Court cited record evidence that the nation’s largest “nomadic” interconnected VoIP (define - news - alert) provider had already procured a technical solution to meet the 120-day deadline, and that a third-party service provider was prepared to offer a technological solution that met the VoIP E911 Order’s requirements, even for providers of nomadic, nonnative IVP services. The Court also noted the FCC’s IVP trials that demonstrated E911 access was possible for providers of nomadic, non-native VoIP service in King County, Washington, Rhode Island, and other locations.

While acknowledging that some of the particular elements of these market tests made them an unreliable basis for a 120- day deadline, the Court found that the general success of these tests, combined with the substantial deference owed to the FCC’s predictive judgments, overcame the weaknesses highlighted by Petitioners. The Court stressed that it was the FCC’s predictive judgment that the bulk of national VoIP E911 access could be achieved within 120 days and such a prediction was within the scope of the FCC’s authority.

The Court similarly dismissed the Petitioners’ claims that the FCC failed to properly distinguish between the unique technological obstacles faced by nomadic or non-native VoIP providers and those faced by fixed, native providers, finding that the FCC did consider the unique challenges of nomadic VoIP, and did not require that IVPs determine the actual location of nomadic VoIP users. Instead, the use of a registered location demonstrated the FCC’s flexibility with respect to nomadic VoIP services.

The Court also found that the FCC properly explained that it balanced its concern for public safety against the economic cost of the 120-day deadline and found that this cost was outweighed by the public safety threat of further delay in E911 implementation.

The Court also rejected the claim that the FCC’s 120-day deadline was an unreasonable departure from the longer and more graduated implementation schedule it had used for other new technologies. While the FCC gave more time for wireless and satellite phones and other new technologies to implement 911 capabilities, the Court held that these precedents did not bind the FCC because of the differences in technologies at issue.

The Court next addressed arguments that the 120-day deadline was unreasonable because the FCC failed to impose a duty on ILECs to provide access to E911 infrastructure. The Court found that the FCC’s choice was not arbitrary, because the record contained evidence that major ILECs were cooperating with nomadic IVPs and increasingly offering E911 solutions that allow VoIP providers to interconnect directly to the wireline E911 network through tariff, contract, or a combination thereof. While the Court acknowledged that there was evidence suggesting that ILECs were not always so cooperative, the Court sided with the FCC’s predictive judgment that the increased levels of ILEC cooperation obviated any need to impose any duties on the ILECs.

Finally, the Court held that the IP-Enabled Services NPRM provided sufficient notice of the purpose, extent, form, and timeframe of any pending VoIP E911 regulation. The Court found that the IPEnabled Services NPRM gave interested parties a reasonable opportunity to present relevant information on the central issues, and observed that many parties submitted comments on all aspects of VoIP services through that proceeding.

Notably, the Court did not address several arguments made by the Petitioners, including the argument that there was not record evidence to suggest that PSAPs were not capable of deploying VoIP E911 within the 120 day deadline.

In a concurring opinion, Judge Kavanaugh suggested that the FCC could justify the E911 requirement, even if IVPs could not feasibly meet the FCC’s 120-day deadline. Judge Kavanaugh argued that the FCC has the statutory authority to address public safety threats by banning any voice service that does not ensure adequate 911 connectivity, and that the FCC’s authority necessarily includes the lesser power to ban such sales beginning in 120 days. The majority found that it was inappropriate to address this issue, because the FCC did not claim broad authority to outlaw non-compliant services in its Order.

In sum, the Court found that the Commission adequately considered not only the technical and economic feasibility of the deadline, but also the public safety objectives the Commission is required to achieve. As a result, IPVs are well advised to take the utmost care to ensure they are in compliance with the FCC’s rules.

William B. Wilhelm is a partner at the global law firm of Bingham McCutchen LLP. For more information, please visit them online at http://www.bingham.com. The preceding represents the views of the authors only and does not necessarily represent the views of Bingham McCutchen LLP or its clients.

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