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National Association of Regulatory Utility Commissioners v. FCC: 851 F.3d 1324 (D.C. Cir. 2017).

In National Association of Regulatory Utility Commissioners v. FCC, (1) the United States Court of Appeals for the District of Columbia Circuit denied a petition for review of an FCC Order which changed the way Voice-over-Internet-Protocol service providers obtain North American Numbering Plan telephone numbers. (2)

I. BACKGROUND

Under the Communications Act, communication services are classified in two groups: telecommunications services and information services. (3) One important distinction between the two types is that, unlike information services, telecommunications services are treated as "common carriers" as defined by Title II of the Communications Act. (4) Prior to the challenged Order, in order for an I-VoIP service provider to be issued telephone numbers, the I-VoIP had to: (1) "produce evidence of either a state certificate of public convenience and necessity [ ] or a Commission license," (2) "partner with a carrier...and pay that carrier a Primary Rate Interface service fee," or (3) get a waiver from the FCC allowing the I-VoIP service provide to "obtain numbers directly from the Numbering Administrators." (5) The challenged Order revised the process by which I-VoIPs could obtain telephone numbers, allowing the I-VoIPs direct access to obtaining telephone numbers "without regard to whether they are [common] carriers." (6) However, the challenged Order did not establish I-VoIPs as telecommunications services or information services; rather, the FCC mentioned in the Order that they had not yet classified I-VoIPs into a specific communication service category. (7)

The National Association of Regulatory Utility Commissioners challenged the Order on two grounds: (1) the Order incorrectly classified I-VoIP service providers as Title II telecommunications services, or (2) the Order gave Title II telecommunications services rights to I-VoIP service providers without those providers being classified as Title II providers. (8) The FCC claimed that the National Association of Regulatory Utility Commissioners (NARUC) lacked standing to challenge the Order because they had no proof of injury-in-fact to their members. (9) Vontage Holdings Corporation, who acted as an intervenor in the case, claimed that NARUC lacked standing to challenge the Order because the Order did not "change the rights or responsibilities" of NARUC's members. (10)

ANALYSIS

In NARUC's Opening Brief, they claimed that standing was self-evident on the basis of their claims against the FCC. The court rejected that argument, holding that standing was not self-evident. (11) Additionally, the court noted that if standing is not self-evident, then the moving party must provide evidence supporting each element of standing. (12) For NARUC to meet the requirements of standing as defined by Article III of the Constitution, NARUC had to show that: "(1) at least one of its members was injured in fact...; (2) the injury was caused by the Order; and (3) the court can redress the injury." (13) In their Reply Brief, NARUC introduced two theories of standing. (14)

NARUC's first theory of standing was that by not classifying I-VoIPs as telecommunication services the FCC is impeded on the states' ability to regulate I-VoIPs in the same manner they regulate common carriers while giving I-VoIPs Title II benefits. (15) The court held that NARUC's first theory of standing failed because it linked the perceived injury to the FCC's refusal to classify I-VoIPs rather than the actual holding of the Order. (16) Additionally, the NARUC failed to provide evidence supporting their assertion that they have been injured by the FCC's refusal to classify I-VoIPs in the Order. (17)

NARUC's second theory of standing was that its members were harmed by the holding of the Order by permitting "I-VoIP providers the option to bypass either becoming State-certified or dealing with a State-certified carrier." (18) NARUC claimed their members were harmed by the changes instituted by the Order because of the burden it places on the states. (19) The court held that NARUC's second theory of standing failed because the NARUC failed to provide any evidence to support their assertion that the state commission procedures have become more burdensome due to the new regulations instated by the Order. (20)

CONCLUSION

The United States Court of Appeals for the District of Columbia Circuit dismissed the petition on the grounds that the Court lacked jurisdiction to decide the issue because the National Association of Regulatory Utility Commissioners' failed "to show that it [had] standing to challenge the Order." (21)

Kristin Capes (*)

(*) J.D. candidate, The George Washington University Law School, May 2017. Production Editor, Federal Communications Law Journal, 2017-18.

(1.) Nat'l Ass'n of Regulatory Util. Comm'rs v. FCC, 851 F.3d 1324 (D.C. Cir. 2017).

(2.) See Id.

(3.) Id. at 1326.

(4.) Id.

(5.) Id.

(6.) Id. (quoting Order App. C.)

(7.) Id.

(8.) Id. at 1325.

(9.) Id. at 1327.

(10.) Id.

(11.) Id.

(12.) Id.

(13.) Id.

(14.) Id.

(15.) Id. At 1328.

(16.) Id. at 1328.

(17.) Id.

(18.) Id.

(19.) Id.

(20.) Id. at 1329.

(21.) Id. at 1325.
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Article Details
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Author:Capes, Kristin
Publication:Federal Communications Law Journal
Date:Jan 1, 2018
Words:804
Previous Article:Montgomery County v. FCC: Nos. 08-3023/15-3578, 2017 U.S. App. LEXIS 12431 (6th Cir. July 12, 2017).
Next Article:National Association of Telecommunications Officers & Advisors v. FCC: 862 F.3d 18 (D.C. Cir. 2017).
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