11th Circuit Sides with FCC in 911 VoIP Fee Challenge

An appellate panel affirmed the findings of the Federal Communications Commission (FCC) on Tuesday in a case contesting its ruling that 911 Districts, emergency hotline service providers, must charge non-voice over internet protocol (VoIP) and VoIP service providers the same amount for the support or implementation of 911 services. The 27-page opinion denying the Alabamian 911 Districts’ petition for review rested on interpretation of the statutory text, structure, and purpose of the New and Emerging Technologies 911 Improvement Act of 2008 (NET 911 Act).

The case began in 2019 when several 911 Districts, funded by emergency telephone service charges, alleged that a private entity, BellSouth, undercharged VoIP customers in violation of Alabama’s Emergency Telephone Service Act. The case was removed to federal court then put before the FCC. The agency solicited comment before ruling that BellSouth correctly charged VoIP providers based on its interpretation of the 911 Fee Parity Provision of the NET 911 Act.

The 911 Districts appealed the FCC’s decision, rendering the agency a defendant. For its part, BellSouth intervened as an interested party defending the FCC’s ruling, as did two trade groups, USTelecom and The Internet and Television Association.

In its opinion, the Eleventh Circuit panel considered whether the Commission’s ruling was arbitrary and capricious under the deferential Administrative Procedure Act standard. The court dissected the section nearly word-for-word in finding that the Congressional intent behind the parity provision supported the FCC’s conclusion.

The panel held that Congress did not intend to charge VoIP providers more than traditional phone service providers in order to reach the goal of facilitating “‘the rapid deployment’” of IP-enabled 911 services. The panel concluded that “the ‘text of the statute, its structure, and its stated purpose’ all direct a clear reading of the 911 Fee Parity Provision: the statute demands parity in the total fees assessed on VoIP and non-VoIP subscribers for 911 hotline services.”

The petitioners are represented by Badham & Buck LLC and Baller Stokes & Lide P.C.