National Ass'n of Regulatory Utility Commissioners v. Federal Communications Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 8, 2017 Decided March 24, 2017

No. 15-1497

NATIONAL ASSOCIATION OF REGULATORY UTILITY
COMMISSIONERS,
PETITIONER

v.

FEDERAL COMMUNICATIONS COMMISSION AND UNITED
STATES OF AMERICA,
RESPONDENTS

VONAGE HOLDINGS CORPORATION,
INTERVENOR

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
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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.
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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).
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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 authority to extend numbering requirements to
other service providers. See Order ¶¶ 79–82.

NARUC petitions for review of the Order.
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II.

As a threshold matter, the Commission and Vonage
Holdings Corporation maintain that NARUC members lack
standing under Article III of the Constitution to challenge the
Order because NARUC has failed to show its members suffered
any injury-in-fact as a result of the Order. In the Commission’s
view, NARUC members were not harmed by the Order and any
harm stems from the Commission’s failure to date to classify
VoIP services as a “telecommunications service, subject to Title
II common carriage regulation.” Resp’t’s Br. 22. Vonage
Holdings Corporation, in turn, argues that the Order does not
change the rights or responsibilities of NARUC members but
maintains the status quo ante authority of the state commissions
to regulate VoIPs. Intervenor’s Br. 17–18.

“[A]n association has standing to bring suit on behalf of its
members when [ ] its members would otherwise have standing
to sue in their own right; [ ] the interests it seeks to protect are
germane to [its] purpose; and [ ] neither the claim asserted nor
the relief requested requires the participation of individual
members in the lawsuit.” Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977); Pub. Citizen, Inc. v. Nat’l
Highway Traffic Safety Admin., 489 F.3d 1279, 1289 (D.C. Cir.
2007). So, to establish standing under Article III, NARUC must
demonstrate that: (1) at least one of its members was injured in
fact, meaning an “actual or imminent, not conjectural or
hypothetical” injury; (2) the injury was caused by the Order; and
(3) the court can redress the injury. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560–61 (1992) (citations omitted).
Where, as here, NARUC members are not directly regulated by
the challenged agency action, standing is “substantially more
difficult to establish.” Id. at 562; see Pub. Citizen, Inc., 489
F.3d at 1279. Furthermore, “[b]are allegations are insufficient
[ ] to establish a petitioner’s standing,” and where that standing
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is not self-evident, the petitioner in its opening brief “must
support each element of its claim to standing by affidavit or
other evidence.” Sierra Club v. EPA, 292 F.3d 895, 898, 899
(D.C. Cir. 2002) (quotation omitted); Scheduling Order 2 (Feb.
24, 2016) (citing D.C. Cir. Rule 28(a)(7)). Although the court
sua sponte may seek supplemental submissions to satisfy itself
that the petitioner has Article III standing, see American Library
Association v. FCC, 401 F.3d 489, 494 (D.C. Cir. 2005), no
supplemental submission is needed here.

Although NARUC bears the “burden of proof . . . to show
a substantial probability that it has been injured,” Sierra Club,
292 F.3d at 899 (quotation omitted), NARUC does not address
standing in its opening brief beyond a single sentence, asserting
without elaboration that “the Order undermines its members’
authority directly and indirectly.” Pet’r’s Br. 17. In its Reply
Brief, NARUC states standing is “evident” from its opening
brief, Reply Br. 12, because the Order “impacted” state
commissions’ ability to carry out “tasks central to a federal
scheme,” id. at 15. Essentially, then, NARUC maintains its
standing is self-evident and consequently it is relieved of the
obligation of present affidavits or other evidence in support of
standing. See Sierra Club, 292 F.3d at 899. NARUC offers two
theories of standing in its Reply Brief but neither is persuasive,
and its standing is not self-evident.

First, NARUC maintains that the Commission’s actions
injure its members’ “designated role in Congress[’s] plan,”
Reply Br. 19, by allowing I-VoIP service providers to obtain
telephone numbers without being classified as
“telecommunications carriers,” Pet’r’s Br. 33. This failure to
classify I-VoIPs, NARUC suggests, denies states certain
regulatory authority that applies only to telecommunications
carriers. Yet NARUC does not challenge the I-VoIP’s ability to
obtain numbers directly. Instead, it maintains that the Order has
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the effect of classifying I-VoIPs as a Title II telecommunications
service and this court should either confirm that fact, see Pet’r’s
Br. 17–33, or vacate the Order and remand this matter to require
the Commission to so classify I-VoIPs by a date certain, see id.
at 62. It is undisputed that if the Commission had so classified
I-VoIP service providers they would have direct access to
numbers and number portability rights and obligations. See
Order ¶ 4; Pet’r’s Br. 39. Consequently, NARUC has shown no
injury-in-fact that is caused by the Order, but at most only harm
as a result of the legal route and rationale the Commission used
to reach its result. Because NARUC has not demonstrated it
was “adversely affected by the Commission’s holding,” its
objection to the Order’s underlying rationale is not the kind of
harm that generally constitutes injury-in-fact. Int’l Bhd. of Elec.
Workers v. Interstate Commerce Comm’n, 862 F.2d 330, 334
(D.C. Cir. 1988); cf. Telecomm. Research & Action Ctr. v. FCC,
917 F.2d 585, 588 (D.C. Cir. 1990).

Moreover, although NARUC asserts the Order diminishes
its members’ regulatory authority, it never ties that claimed
harm to the regulatory changes made in the Order. Specifically,
NARUC states that I-VoIP’s “unresolved [classification] status”
undercuts its members’ authority to “arbitrate interconnection
disputes between telecommunications carriers,” Pet’r’s Br. 13;
Reply Br. 14 n. 4 (citing 47 U.S.C. § 252) (emphasis in
original), and to protect “customers of telecommunications
services,” Pet’r’s Br. 9 n. 11 (citing 47 U.S.C. § 253) (emphasis
in original). The Order addresses only direct number access and
enhanced portability, leaving undisturbed the Commission’s
separate classification proceeding. Order ¶ 79 n. 282. “Because
this Order is not the source” of the harm arising from the
Commission’s classification delay, NARUC’s claim of injury is
misdirected. Cf. Nat’l Tel. Coop. Ass’n v. FCC, 563 F.3d 536,
541–42 (D.C. Cir. 2009). Absent affidavits or other supporting
evidence, NARUC fails to explain how it suffers a concrete,
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particularized injury simply because I-VoIPs are not yet
classified by the Commission. NARUC identifies no state
authority that depends on whether interconnected VoIP is
classified by the Commission as a telecommunications service;
instead, all the statutory provisions NARUC invokes depend on
whether I-VoIP is a telecommunications service. See, e.g.,
Pet’r’s Br. 13 (citing 47 U.S.C. §§ 252, 253(b)). Under
NARUC’s view that “I-VoIP is a [t]elecommunications
[s]ervice,” Pet’r’s Br. 28, the states can already exercise those
statutory powers. NARUC fails to explain what additional
concrete benefit the Commission classification would provide to
states. Therefore, NARUC fails to identify a concrete harm
inflicted by the Order’s inaction on classification.

Second, NARUC maintains its members are injured by the
“Order’s raison d’etre — which is to permit I-VoIP providers
the option to bypass either becoming State-certified or dealing
with a State-certified carrier.” Reply Br. 12 (citing Order ¶ 21).
It maintains that its members suffered an injury because “the
Order substitutes a necessarily less direct and arguably more
burdensome procedure for States” to carry out their role in
“actively polic[ing] utilization (to avoid State area code
exhaustions).” Reply Br. 13; see Oral Arg. Tape 6:15–6:50;
9:28–9:40. The Commission has delegated to state commissions
the authority to “resolve matters involving the introduction of
new area codes within their states,” which includes “[d]irecting
whether area code relief will take the form of a geographic split,
an overlay area code, or a boundary realignment.” 47 C.F.R.
§ 52.19(a); see Order ¶ 27 n. 88. NARUC does not explain how
these proceedings have become more burdensome, much less
how the Order has caused a more burdensome procedure for the
state commissions to carry out their delegated duties. That
objection overlooks that the Commission has preserved the
numbering authority of state commissions. See Order ¶ 24. The
Order requires I-VoIP service providers to “file requests for
 9

numbers with the relevant state commission(s) at least 30 days
before requesting numbers from the Numbering Administrators,”
id. ¶ 24, and I-VoIPs that directly access numbers are required to
“adher[e] to the numbering authority delegated to state
commissions for access to data and number reclamation,” id. ¶
27. Indeed, when NARUC’s counsel was asked during oral
argument to describe, in light of Paragraph 24, how the Order
harmed NARUC, counsel appeared to deflect the question,
responding that its members “were not happy” with the Order.
Oral Arg. Tape 32:30–34:20. Unhappiness, however, does not
meet the first prong of Article III standing. Because it is not
self-evident that state commissions’ procedures have become
more burdensome for NARUC members, NARUC fails to
demonstrate an injury-in-fact. Again, “[b]are allegations” are
insufficient. Sierra Club, 292 F.3d at 898.

Accordingly, because NARUC has failed to demonstrate an
injury-in-fact, and thus failed to establish Article III standing to
challenge the Order, the court lacks jurisdiction and the petition
for review is dismissed.