Appeals Panel Hears VoIP Arguments Against 911 Mandate
A 3-judge panel of the U.S. Appeals Court, D.C. peppered lawyers from both sides with questions Tues. in an appeal by Nuvio and other VoIP operators of the FCC’s May 2005 requirement that such companies provide subscribers 911 within 120 days.
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Russell Blau, attorney for Nuvio and other VoIP companies, said the FCC had a laudable goal: To protect public safety. “What we challenge in this case is not the goal, but the means.” Blau said the FCC “had no factual basis” for determining that carriers could make their systems 911 ready so quickly. He said the FCC’s order “might have been quite reasonable” if not for the deadline. Blau said the order has hurt many carriers, forcing them to stop seeking new customers because they can’t guarantee 911 coverage in many areas.
But James Carr, representing the FCC, told the court Nuvio claimed that providing 911 service within 120 days wasn’t possible. “That is simply not the case,” he said: “The technology was there. Some of the carriers had already negotiated agreements” to offer 911 service. He specifically cited agreements by Vonage with Qwest and Verizon.
Carr also insisted the tight deadline had forced VoIP providers to respond. No carrier has been cited for failure to comply, and the number offering 911 service has grown markedly since the order, he said. Carr also said only 5 of about 100 VoIP operators offering nomadic service are participating in the appeal. The 3 panel members --Chief Judge Douglas Ginsburg and judges Thomas Griffith and Brett Kavanaugh -- probed whether the FCC deadline was reasonable. They focused in particular on problems presented by nomadic customers, who use VoIP from changing addresses.
Ginsburg questioned whether it made sense for the FCC to focus on these customers, since they make calls from hotel rooms and other places with conventional phone service. Ginsburg also questioned what was at stake in the case, since the deadline passed in Nov. 2005.
Griffith reminded Blau that the court normally gives the FCC significant deference on such policy matters. He said the FCC may have greater leeway than usual because the order involved public safety. He also asked Carr: “How did you come up with 120 days? Why not 180? Why not 360?” Carr conceded that such FCC deadlines are often “arbitrary.” Asked by Kavanaugh what a more reasonable deadline would be, Blau suggested 2 years. But he said the FCC hadn’t explored the question. Griffith said Nuvio was asking the court to 2nd-guess the FCC on the deadline, which he said presented a “quandary… Isn’t it just a matter of line-drawing?”