Nuvio Corporation v. Federal Communications Commission and United States of America, Verizon Telephone Companies and at & T Corporation, Intervenors

KAVANAUGH, Circuit Judge,

concurring.

In 2005, the Federal Communications Commission required voice-over-internet-protocol (VoIP) providers to ensure adequate 911 connections — a requirement already imposed on wireline and wireless telephone providers. The FCC set a 120-day deadline for the VoIP providers to meet the requirement. See Order, 20 F.C.C.R. 10,245 (2005). The Court upholds the Order because the Commission reasonably predicted that VoIP providers (including nomadic VoIP providers) could meet the 120-day deadline and the Order was otherwise justified and explained. I agree with the Court’s analysis and join its opinion.

The FCC also candidly recognized, however, the potential difficulties that nomadic VoIP providers would face in meeting a 120-day deadline — and acknowledged that the deadline was “aggressively short.” Id. at 10,266-10,267 ¶ 37; see also id. ¶ 25 (“[W]e recognize that certain VoIP services pose significant E911 implementation challenges.”). The FCC nonetheless said that “the threat to public safety if we delay further is too great and demands near immediate action.” Id.; see also FCC Brief at 31 (“[T]he FCC made a reasonable judgment that any possible risk that expedited 911 implementation posed to [VoIP providers’] commercial viability was outweighed by the growing threat to public safety if [VoIP providers] continued to route 911 calls in a systematically unsatisfactory manner.”); id. at 26 (“Given the tragedies that have already resulted from inadequate VoIP 911 service, and given the projected tenfold increase in the number of VoIP 911 calls in the near future, the Commission reasonably concluded that the public could not tolerate any further delay in the implementation of VoIP E911 service.”); id. (“[G]iven the profound public safety concerns weighing in favor of rapid 911 deployment here, petitioners have not come close to showing that the balance struck by the Commission was unreasonable.”).

I write separately only to express my agreement with the FCC Order’s suggestion that the 911 requirement would be justified even if VoIP providers could not *311feasibly meet the 120-day deadline. In my judgment, the FCC possesses the statutory authority, which the Commission may reasonably choose to exercise, to address the public safety threat by banning providers from selling voice service until the providers can ensure adequate 911 connections. And the FCC’s greater authority to ban sales of voice service without adequate 911 capability necessarily includes the lesser power to ban such sales beginning in 120 days.

Congress established the FCC in part “for the purpose of promoting safety of life and property through the use of wire and radio communications.” 47 U.S.C. § 151. Through the Wireless Communications and Public Safety Act of 1999, Congress charged the FCC with ensuring that 911 service is available throughout the country. Pub.L. No. 106-81, 113 Stat. 1286 (codified at scattered sections of 47 U.S.C.). The Act instructs that “[t]he Commission ... shall designate 9-1-1 as the universal emergency telephone number within the United States for reporting an emergency to appropriate authorities and requesting assistance.” 47 U.S.C. § 251(e)(3). Five years later, Congress enacted the ENHANCE 911 Act. Pub L. No. 108-494, 118 Stat. 3986 (2004) (codified at 47 U.S.C. § 942). In that Act, Congress found that “for the sake of our Nation’s homeland security and public safety, a universal emergency telephone number (911) that is enhanced with the most modern and state-of-the-art telecommunications capabilities possible should be available to all citizens in all regions of the Nation.” Id. § 102. Congress made clear that “enhanced 911 is a high national priority.” Id.

As these statutes indicate, as the FCC has recognized in prior orders, and as the record before the Commission in this proceeding demonstrates, 911 service saves lives and helps prevent or reduce injuries that occur as a result of violent crime or accidents. See, e.g.; Revision, of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, 11 F.C.C.R. 18,676, 18,679 ¶5 (1996)(911 service “saves lives and property”); Order, 20 F.C.C.R. at 10,246 ¶1 n.2 (describing recent incidents involving home burglary and where children needed immediate help); id. at 10,248 ¶ 4 n.ll (citing comments that explain why 911 service is critical and that describe various incidents involving 911 service); Revision of the Commission’s Rules to Ensure Compatibility with Enhanced 911 Emergency Calling Systems, 17 F.C.C.R. 8481, 8482 ¶ 4 (2002)(considering 911 issues for victims of domestic violence).

Adequate 911 service is important, moreover, for our Nation to quickly respond to terrorist attacks or natural disasters. See Order, 20 F.C.C.R. at 10,247-10.248 ¶4 (“911 service is critical to our nation’s ability to respond to a host of crises”); id. at 10,249 ¶ 6 n.16 (citing Dale N. Hatfield, A Report On Technical And Operational Issues Impacting The Provision Of Wireless Enhanced 911 Services (2002)); Hatfield Report at ii (“the tragic events of September 11, 2001 and growing dependence on wireless networks[] serve to further emphasize the importance of E911 in general, and wireless E911 in particular, to the safety of life and property and homeland security”); id. at 15 (timely response to call of suspicious activity “could make the difference between a foiled or successful attack”); Recommendations of the Independent Panel Reviewing the Impact of Hurricane Katrina on Communications Networks, Notice of Proposed Rulemaking, 21 F.C.C.R. 7320, 7326 ¶¶ 16-17 (2006) (summarizing proposed ways to ensure adequate 911 service during natural disasters); cf. Final Report of the National Commission on Terrorist Attacks upon the United States 318 (2004) *312(discussing importance of 911 in emergency responses to terrorist attacks); U.S. House Of Representatives, Final Report Of The Select Bipartisan Committee To Investigate The Preparation For And Response To Hurricane Katrina 163-64 (2006) (inoperability of 911 can impede emergency services in response to natural disasters).

In sum, the evidence establishes that adequate 911 service is vital to the personal security of American citizens and the homeland security of our Nation. The broad public safety and 911 authority Congress has granted the FCC therefore includes the authority to prevent providers from selling voice service that lacks adequate 911 capability.