United States Court of Appeals, District of Columbia Circuit
National Association of Regulatory Utility Commissioners, Petitioner
v.
Federal Communications Commission and United States of America, Respondents Vonage Holdings Corporation, Intervenor
Argued
February 8, 2017
On
Petition for Review of an Order of the Federal Communications
Commission
James
Bradford Ramsay argued the cause for petitioner. With him on
the briefs was Jennifer Murphy.
Matthew 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, David 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.
Elizabeth A. Bonner argued the cause for intervenor. With her
on the brief was Brita D. Strandberg.
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." 47 U.S.C.
§ 153(24), (53). Providers of telecommunications service
are subject to regulation as common carriers under Title II
of the Act, id. § 153(51), while information
services are not. See Nat'l Cable & Telecomms.
Ass'n v. Brand X Internet Servs., 545 U.S. 967, 974
(2005).
Prior
to the challenged Order, the Commission's regulations
required "an entity requesting numbering resources to
demonstrate that it is 'authorized' to provide
service in the area for which it is requesting telephone
numbers." Order ¶ 20. The entity had to produce
"evidence of either a state certificate of public
convenience and necessity [ ] or a Commission license."
Id. ¶ 4. Absent such evidence, I-VoIPs had to
"partner with a carrier, " usually a local exchange
carrier ("LEC"), and pay that carrier a Primary
Rate Interface service fee in order to get telephone numbers.
Id. ¶¶ 17 n. 54, 69. In 2004, the
Commission issued a notice of proposed rulemaking to classify
VoIP, among others, as a "telecommunications service,
" In re IP-Enabled Services, WC Docket No.
04-36, 19 FCC Rcd. 4863 (2004), but had taken no further
action in that separate proceeding when the challenged Order
was issued.
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 request 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 VoIP 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 obtained numbers directly or through a
carrier partner Id. ¶ 55.
The
Commission rejected NARUC's argument that its exclusive
authority over numbering under 47 U.S.C. § 251(e)(1), is
limited by provisions imposing number portability and cost
recovery obligations on "telecommunications
carriers." See 47 U.S.C. §§ 251(b)
& (e), 153(37) & (51). It interpreted these
provisions to set a statutory floor that did not limit the
Commission's ...