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

• Author: Capes, Kristin

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)

1. 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...