DC Circuit Nixes NARUC Case Against FCC VoIP Numbering Order, Cites Standing Issue

A federal court threw out NARUC's case against an FCC VoIP numbering order after finding the state regulatory group lacked standing under the Constitution. "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," said a per curium order Friday of a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in NARUC v. FCC, No. 15-1497. At oral argument Feb. 8, Chief Judge Merrick Garland and Judge Judith Rogers questioned if NARUC members were harmed (see 1702080021).

An FCC spokesman said the ruling "is good for consumers and competition because it will allow VoIP providers to continue assigning telephone numbers to their customers without paying middlemen to obtain those numbers.” NARUC didn't comment.

The state regulatory commissioner group challenged the FCC order that lets interconnected VoIP (i-VoIP) providers apply to obtain phone numbers directly from numbering administrators, rather than through telecom carrier intermediaries. The order was adopted unanimously and issued in 2015 (see 1506180060 and 1506220032). NARUC argued the commission couldn't give the interconnected-VoIP (i-VoIP) providers direct numbering rights without classifying their product as a Communications Act Title II telecom service (see 1604050013). The FCC and Vonage argued NARUC failed to show the order injured members (see 1605200002 and 1605260058).

The opinion said NARUC bore the "burden of proof ... to show a substantial probability that it has been injured," citing a precedent in the court's 2002 Sierra Club v. EPA ruling. The D.C. Circuit said NARUC didn't address standing in its opening brief -- beyond saying the order "undermines its members' authority directly and indirectly." In its reply brief, NARUC said its standing "is ‘evident’ from its opening brief ... because the Order ‘impacted’ state commissions' ability to carry out ‘tasks central to a federal scheme,’” the opinion said. "Essentially, then, NARUC maintains its standing is self-evident. ... NARUC offers two theories of standing in its Reply Brief but neither is persuasive, and its standing is not self-evident.”

The association argued the order injures state regulators' congressionally mandated role by letting i-VoIP providers get phone numbers without being classified as telecom carriers, the panel said. "Yet NARUC does not challenge the I-VoIP’s ability to obtain numbers directly. Instead, it maintains that the Order has the effect of classifying I-VoIPs as a Title II telecommunications service and this court should either confirm that fact ... or vacate the Order and remand this matter to require the Commission to so classify I-VoIPs," the judges wrote. "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." The panel wasn't convinced by NARUC arguments that i-VoIP's unresolved regulatory classification undercut state regulators' ability to arbitrate telecom carrier interconnection disputes.

The plaintiff argued "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,’” the D.C. Circuit wrote. Noting a NARUC argument that state regulators faced new burdens in carrying out numbering duties, the judges said the group didn't explain how the order made their procedures more burdensome and overlooked the FCC decision preserving state numbering authority.