Autauga County Emergency Management Communication District v. ATT ( 2021 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-15072
____________________
AUTAUGA COUNTY EMERGENCY MANAGEMENT
COMMUNICATION DISTRICT,
CALHOUN COUNTY 911 DISTRICT,
BIRMINGHAM EMERGENCY COMMUNICATIONS
DISTRICT,
MOBILE COUNTY COMMUNICATIONS DISTRICT,
Petitioners,
versus
FEDERAL COMMUNICATIONS COMMISSION,
Respondent,
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2 Opinion of the Court 19-15072
ATT,
BELLSOUTH,
Intervenors-Respondents.
____________________
Petition for Review of a Decision of the
Federal Communications Commission
Agency No. 19-FCC-44
____________________
Before ROSENBAUM, LUCK, and ANDERSON, Circuit Judges.
ROSENBAUM, Circuit Judge:
Dialing 9-1-1 from anywhere in the United States, using just
about any type of phone system, connects a user with an emer-
gency-services hotline. That, of course, is by design.
The groundwork for our national emergency-system hot-
line started to be laid in the 1960s. Since that time, new telephony
technology continued to develop: basic analog systems, digital sys-
tems, mobile and cellular systems, and most recently, systems that
use the internet to transmit messages. This internet telephony
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19-15072 Opinion of the Court 3
technology is often referred to as “Voice over Internet Protocol,”
or “VoIP,” for short. 1 And Congress took notice of it.
Indeed, in 2008, Congress enacted legislation that required
the development of a “national plan for migrating to a national IP-
enabled emergency network capable of receiving and responding
to all citizen-activated emergency communications and improving
information sharing among all emergency response entities.” 47
1 To understand how VoIP functions, it’s helpful to compare it to how
conventional phone calls work. A “regular” phone call using the “public
switched telephone network” (“PSTN”) (also known by the retronym “plain
old telephone service” (“POTS”)) relies on circuit-switched telephony. See
ThinkSecure Network, How does a VoIP phone system work differently than
POTS?, Difference Between VoIP and PSTN, ThinkSecureNet (June 11, 2021),
https://www.thinksecurenet.com/blog/how-does-a-voip-phone-system-
work-differently-than-pots/. The system works by setting up a dedicated cir-
cuit between two points at different sites for the duration of a call. See Cam-
eron Johnson, What is POTS? Plain Old Telephone Service Line & Network
Explained, Nextiva Blog (Oct. 15, 2018), https://www.nextiva.com
/blog/what-is-pots.html. Traditionally, this type of telephony system has
used copper wires carrying analog voice data over dedicated circuits. Id. In
more recent years, integrated services digital network (“ISDN”) technology
has been used to carry digital voice data, using the traditional public switched
telephone network. Id. In contrast, VoIP refers to phone service over the
internet. See Difference Between VoIP and PSTN, GeeksforGeeks (updated
on Aug. 14, 2020), https://www.geeksforgeeks.org/difference-between-voip-
and-pstn/. For calls using VoIP, the internet is the transmission medium for
voice data in the form of packets using Internet Protocol (“IP”). Id. VoIP
transmits real-time voice signals from a source IP address to the target IP ad-
dress. Id. VoIP has come a long way since its invention, and today, some
consider it more reliable and cost-effective than good, old-fashioned POTS.
Id.
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4 Opinion of the Court 19-15072
U.S.C. § 942(d)(1) (2008). That legislation is called the New and
Emerging Technologies 911 Improvement Act of 2008 (“NET 911
Act”), Pub. L. 110-283, 122 Stat. 2620 (July 23, 2008), and it is codi-
fied at 47 U.S.C. §§ 222, 615a, 615a-1, 615b and 942. 2
Congress identified three interrelated purposes of the NET
911 Act: “To promote and enhance public safety by facilitating the
rapid deployment of IP-enabled 911 and E-911 services, encourage
the Nation’s transition to a national IP-enabled emergency net-
work, and improve 911 and E-911 access to those with disabilities.”
Pub. L. 110-283, 122 Stat. 2620.
In furtherance of these purposes, Congress legislated “par-
ity” between VoIP-based and non-VoIP-based providers and sub-
scribers when it comes to providing and obtaining 911-system ac-
cess. Put simply, Congress sought to eliminate any financial pen-
alty to VoIP providers and subscribers, in comparison to non-VoIP
providers and subscribers, for 911-system access.
As part of this plan, Congress enacted 42 U.S.C. § 615a-
1(f)(1), which we refer to as the “911 Fee Parity Provision.” This
statute allows non-federal government entities to charge a fee to
commercial phone services for the support or implementation of
various 911 services. But it specifies that, “[f]or each class of
2 Section 942 has since been substantially amended by the Next Gen-
eration 9-1-1 Advancement Act of 2012, Pub. L. 112-96, §§ 6501-09, 126 Stat.
156, 237-45 (Feb. 22, 2012). For that reason, our further citations of Section
942 in this opinion refer to the 2008 version.
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19-15072 Opinion of the Court 5
subscribers to IP-enabled voice services, the fee or charge may not
exceed the amount of any such fee or charge applicable to the same
class of subscribers to telecommunications services.” Id.Appellants here are four 911 Districts in Alabama who con-
tend that the 911 Fee Parity Provision authorizes them to charge
non-VoIP and VoIP service providers using a different unit of meas-
ure for each, as long as the Districts apply the same base fee for
each unit. For example, the 911 Districts argue that they may
charge non-VoIP service providers per access line and VoIP service
providers per ten-digit telephone number as long as they charge,
say, $1.00 each for both units—even if the total charges for a given
class of VoIP subscribers exceed the total charges for the same class
of non-VoIP subscribers for the same amount of burden each group
of subscribers imposes on the 911 system.
Asserting that Intervenor BellSouth failed to pay the fee for
each ten-digit number, the 911 Districts filed suit against BellSouth
in district court. BellSouth disagreed that it was required to pay
these fees.
Under the primary-jurisdiction doctrine, the district court
referred the matter to the Federal Communications Commission
(the “Commission”), since the Commission was charged with exe-
cuting and enforcing the provisions of the NET 911 Act, see 47
U.S.C. § 151. After receiving comments, the FCC issued a declara-
tory ruling concluding that the 911 Fee Parity Provision prohibits
state and local governments from charging 911 fees to VoIP pro-
viders that are greater than those charged to non-VoIP providers
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6 Opinion of the Court 19-15072
for the same amount of burden the services impose on the 911 sys-
tem. The effect of that order would preclude the 911 Districts from
charging VoIP providers and non-VoIP providers the same base fee
based on different units if the total fee charged for comparable 911
access is higher for VoIP service providers. The 911 Districts now
challenge that ruling on a petition for review.
After careful consideration and with the benefit of oral argu-
ment, we independently arrive at the same conclusion as the FCC.
We base our determination on congressional intent as expressed in
the statutory text, structure, and purpose of the NET 911 Act. Be-
cause Congress’s intent is unambiguous, we deny the 911 Districts’
petition for review.
I.
A. Factual Background
1. History of 911
Just three presses of a button on any telephone—9-1-1—re-
quest emergency assistance in the United States. Dialing 911 auto-
matically links the caller to a nearby “public safety answering
point,” (referred to in the U.S. Code as “PSAP,” see 47 U.S.C. §
615b(3)) where a trained telephone operator can dispatch emer-
gency responders such as police, firefighters, and ambulance ser-
vices directly to the caller’s location. Better yet, today, in most
parts of the country, the 911 system automatically provides the dis-
patcher with the caller’s location and phone number.
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But things weren’t always this way. Before the designation
of 911 as the nationwide three-digit emergency-call number, indi-
viduals needed to know and dial local phone numbers to reach
their nearby police or fire station in case of emergency. Or they
could dial “0” to reach a telephone-company operator, who would
then have to transfer the call. But unlike the emergency dispatch-
ers who are now trained for their specific positions, general tele-
phone operators weren’t necessarily equipped or taught to perform
emergency-call-assistance services.
By the mid-1950s, people started to recognize that this sys-
tem was inadequate to meet the emergency communication needs
of the public. In 1957, for example, the National Association of Fire
Chiefs reportedly suggested the need for a single telephone num-
ber for reporting fires. See History of 911: And What it Means for
the Future of Emergency Communications, iCERT and 911 Edu-
cation Foundation, https://static.wixstatic.com/ugd/b8d2ce_e6b
60db90b47454dbb047f451278aa66.pdf.
And ten years later, in 1967, President Lyndon B. Johnson’s
Commission on Law Enforcement and Administration of Justice
recommended that citizens be able to contact police departments
using a uniform telephone number. Id. Its report stated, “Wher-
ever practical, a single police telephone number should be estab-
lished, at least within a metropolitan area and eventually over the
entire United States . . .” Id. To make that vision a reality, in No-
vember 1967, the Federal Communications Commission met with
the American Telephone and Telegraph Company (“AT&T”)—
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8 Opinion of the Court 19-15072
the provider of telephone service throughout most of the United
States at that time—to find a means of establishing a universal
emergency number that could be implemented quickly.
Two months later, on January 12, 1968, AT&T announced
its designation of 911 as the universal emergency number. Id. Why
those digits? According to the National Emergency Number Asso-
ciation (“NENA”), 911 was “brief” and “easily remembered,” and
because it was “a unique number, never having been authorized as
an office code, area code, or service code,” “it best met the long
range numbering plans and switching configurations of the tele-
phone industry.” See 9-1-1 Origin & History, NENA The 9-1-1 As-
sociation, https://www.nena.org/page/911overviewfacts (last
visited Oct. 26, 2021). On February 16, 1968, Alabama’s state
Speaker of the House Rankin Fite completed the first ever 911 call
to Tom Bevill, a U.S. Representative, in Haleyville, Alabama, who
was sitting at the police station, waiting to inaugurate the new sys-
tem. See Haleyville – The First 911 Call, http://archives.ubalt.edu
/bsr/articles/feb%2016.pdf.
2. Statutory regulation of 911
Fast forward to 1999 and the new age the cell-phone rang in:
Congress directed the Federal Communications Commission to
designate 911 as the nationwide emergency hotline for wireline
and wireless voice services. See Wireless Commc’ns and Pub.
Safety Act of 1999, Pub. L. 106-81, § 3(a), 113 Stat. 1286, 1287 (Oct.
26, 1999) (codified at 47 U.S.C. § 251(e)(3)). Since that time, the
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Commission has issued numerous orders overseeing and regulat-
ing the nation’s 911 emergency call system.3
And then, the internet took off.4 After 2000, with the prolif-
eration of new technologies and the growing popularity of voice
See, e.g., In the Matter of Revision of the Commission’s Rules to En-
3
sure Compatibility with Enhanced 911 Emergency Calling Systems, Report
and Order and Further Notice of Proposed Rulemaking, 11 FCC Rcd 18676,
18678, ¶1 (1996) (“today we are taking several important steps to foster major
improvements in the quality and reliability of 911 services” in furtherance of
“our longstanding and continuing commitment to manage use of the electro-
magnetic spectrum in a manner that promotes the safety and welfare of all
Americans”); In the Matter of Revision of the Commission’s Rules to Ensure
Compatibility with Enhanced 911 Emergency Calling Systems; Amendment
of Parts 2 and 25 to Implement Global Mobile Personal Communications by
Satellite (GMPCS) Memorandum of Understanding and Arrangements; Peti-
tion of the National Telecommunications and Information Administration to
Amend Part 25 of the Commission’s Rules to Establish Emissions Limits for
Mobile and Portable Earth Stations Operating in the 1610-1660.5 MHz Band,
Report and Order and Second Further Notice of Proposed Rulemaking, 18
FCC Rcd 25340, 25341, ¶1 (2003) (“we revise the scope of our enhanced 911
rules to clarify which technologies and services will be required to be capable
of transmitting enhanced 911 information to public safety answering points”).
Enhanced 911 (“E911”) service, in contrast with the original basic 911, routes
emergency calls to a geographically appropriate public safety answering point
based on the caller’s location, provides the caller’s call-back number and, in
many instances, the caller’s location. To keep things simple, we refer to basic
911 and E911 collectively as “911” unless otherwise noted.
4 See Anne Hyland, How the internet changed everything, Australian
Financial Review (Apr. 14, 2015), https://www.afr.com/life-and-luxury/
how-the-internet-changed-everything-20150306-13x619.
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10 Opinion of the Court 19-15072
calls made online using VoIP technology, the Commission initiated
a rulemaking proceeding to explore the impact that internet and
VoIP services “have had and will continue to have on the United
States’ communications landscape.” In the Matter of IP-Enabled
Services, Notice of Proposed Rulemaking, 19 FCC Rcd 4863, 4864,
¶ 1 (2004). Relevant here, the Commission specifically sought com-
ment “on the potential applicability of 911, E911, and related criti-
cal infrastructure regulation to VoIP and other IP services.” See
id., 19 FCC Rcd at 4898-99, ¶ 53.
In 2005, the Commission adopted rules “requiring providers
of interconnected voice over Internet Protocol (VoIP) service to
supply enhanced 911 (E911) capabilities to their customers.” In re
IP-Enabled Servs. & E911 Requirements for IP-Enabled Serv. Pro-
viders, 20 F.C.C.R. 10245, 10246 (2005). These rules define “inter-
connected Voice over Internet protocol (VoIP) service” as “a ser-
vice that: (i) Enables real-time, two-way voice communications; (ii)
Requires a broadband connection from the user’s location; (iii) Re-
quires internet protocol-compatible customer premises equipment
(CPE); and (iv) Permits users generally to receive calls that origi-
nate on the public switched telephone network and to terminate
calls to the public switched telephone network.” 47 C.F.R. § 9.3.
We refer to these rules as the “2005 VoIP 911 Order.”
In 2008, Congress followed suit by enacting the New and
Emerging Technologies 911 Improvement Act of 2008 (“NET 911
Act”), Pub. L. 110-283, 122 Stat. 2620 (July 23, 2008). That law,
which codified the rules set forth in the 2005 VoIP 911 Order,
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directed that it “shall be the duty of each IP-enabled voice service
provider to provide 9-1-1 service and enhanced 9-1-1 service to its
subscribers in accordance with the requirements of the . . . Com-
mission.” 47 U.S.C. § 615a-1(a).
As we have noted, the statute also preserved the ability of
states and other jurisdictions to impose fees on these types of ser-
vices to assist in supporting the 911 emergency-hotline system. In
so doing, the Act required that any fees charged be used exclusively
“in support of 9-1-1 and enhanced 9-1-1 services, or enhancements
of such services” as the state or local law authorizing the fees spec-
ified, and it directed that the fee for “each class of subscribers to
[VoIP] services” not exceed that for “the same class of subscribers
to telecommunications services”:
Nothing in this Act, the Communica-
tions Act of 1934 (47 U.S.C. 151 et seq.),
the New and Emerging Technologies
911 Improvement Act of 2008, or any
Commission regulation or order shall
prevent the imposition and collection of
a fee or charge applicable to commercial
mobile services or IP-enabled voice ser-
vices specifically designated by a State,
political subdivision thereof, Indian
tribe, or village or regional corporation
serving a region established pursuant to
the Alaska Native Claims Settlement
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12 Opinion of the Court 19-15072
Act, as amended (85 Stat. 688)[,] for the
support or implementation of 9-1-1 or
enhanced 9-1-1 services, provided that
the fee or charge is obligated or ex-
pended only in support of 9-1-1 and en-
hanced 9-1-1 services, or enhancements
of such services, as specified in the pro-
vision of State or local law adopting the
fee or charge. For each class of subscrib-
ers to IP-enabled voice services, the fee
or charge may not exceed the amount of
any such fee or charge applicable to the
same class of subscribers to telecommu-
nications services.
Id. § 615a-1(f)(1).
B. Procedural Background
1. The district-court lawsuit
On May 6, 2015, BellSouth Telecommunications, LLC, filed
a notice of removal in the United States District Court for the
Northern District of Alabama, relating to a complaint three 911
emergency-communications districts—those for Autauga County,
Calhoun County, and Birmingham—filed in state court.
In an amended complaint, the 911 Districts—now including
the communications district for Mobile County as well (we refer to
the four 911 emergency-communications districts collectively as
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19-15072 Opinion of the Court 13
the “911 Districts”)—alleged that they provide their districts with
911 services, which are funded by emergency telephone service
charges. They further asserted that BellSouth did not collect the
proper charges from VoIP customers as required under Alabama’s
Emergency Telephone Service Act (“ETSA”), Ala. Code § 11-98-1,
et seq. (effective until Oct. 1, 2013). More specifically, the com-
plaint contended that, between 2005 and 2013, BellSouth failed to
correctly bill its business VoIP customers for emergency telephone
service fees, and it misapplied a cap on 911 charges.
Initially, ETSA had imposed a 911 charge on service provid-
ers for every “exchange access line” up to a cap of 100 “per person,
per location.” Ala. Code § 11-98-5. But in 2005, Alabama amended
ETSA to require VoIP providers to instead bill one “fee for each 10-
digit access number assigned to the [VoIP] user.” Id. at § 11-98-5.1.
It was these fees that the 911 Districts claimed BellSouth had failed
to properly pay. As later became apparent during the course of the
litigation (and for reasons we explain more below), this difference
in the way that VoIP and non-VoIP subscribers were to have their
911 fees assessed was significant because it would result in higher
total charges to the VoIP subscribers for the same ability of the
VoIP and non-VoIP subscribers to reach 911 at any given time. 5
5 During the course of the litigation through the district court and the
Commission, Bellsouth actually explained its refusal to charge and collect the
fees per telephone number based on the position that the services it provided
were not VoIP services as that term is defined for purposes of the fee but were
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14 Opinion of the Court 19-15072
The 911 Districts sought in five counts to recover these allegedly
unpaid charges: (1) under ETSA, (2) for negligence, negligence per
se, gross negligence, and recklessness, (3) for breach of fiduciary
duty, (4) for wantonness, and (5) for negligent misrepresentation
and fraud.
BellSouth moved to dismiss for failure to state a claim, argu-
ing that the factual allegations of the complaint were too conclu-
sory and the common-law claims failed as a matter of law. The
court denied the motion.
Then BellSouth filed a motion to refer two issues relating to
the litigation to the Commission under the primary-jurisdiction
doctrine.6 That doctrine allows a court to “stay an action pending
instead traditional telephone services. Because that issue is not before us on
appeal, we do not discuss it further.
6 The two issues BellSouth sought to have the Commission consider
are not the issues the Commission ultimately decided to address, so they are
not before us in this appeal. For that reason, though we note those issues for
the sake of completeness, we do not pause to explain the technological details
of them and how those technological aspects are relevant to the issues raised.
The two issues included the following:
Whether a traditional voice service, such as In-
tegrated Services Digital Network (“ISDN”)
Primary Rate Interface (“PRI”), that does not
utilize Internet Protocol to transmit voice
communications to or from the customer’s
premises is nonetheless interconnected Voice-
over-Internet-Protocol (“VoIP”) service when
provisioned over fiber-optic facilities to a
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resolution of an issue that falls within the special competence of an
administrative agency.” Beach TV Cable Co. v. Comcast of
Fla./Ga., LLC, 808 F.3d 1284, 1288 (11th Cir. 2015). BellSouth’s
motion also sought a stay of the district-court proceedings while
the Commission addressed the issues BellSouth sought to refer.
The 911 Districts opposed the motion. They argued that the case
involved a state-law dispute over which the Commission had no
say.
But the district court did not agree with the 911 Districts,
and it granted the motion for referral. In its order, the court noted
that the parties disagreed about how to characterize the claims in
the case and about the claims’ relation to the communications tech-
nologies at issue. Although the court referred the matter to the
Commission “for further guidance,” it did not explicitly adopt Bell-
South’s framing of the issues, nor did it otherwise specify the issues
it was referring to the Commission.
The district court proceedings remain stayed pending this
appeal.
customer that also has IP-compatible customer
premises equipment (“CPE”).
Whether 47 U.S.C. § 615a-1(f)(1) preempts Ala.
Code § 11-98-5.1(c) insofar as it requires cus-
tomers of VoIP or similar services to pay a
charge that exceeds the 911 charges applicable
to the same class of subscribers to traditional
voice services.
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16 Opinion of the Court 19-15072
2. The administrative proceeding
After the referral to the Commission, the 911 Districts and
BellSouth filed cross-petitions for declaratory ruling with the Com-
mission. The Commission released a public notice seeking com-
ment on the petitions.
Once the Commission considered the comments it received,
it issued its declaratory ruling. To explain the ruling, we must
pause to explain the concept of call capacity. Call capacity refers to
the number of concurrent calls a business’s communications sys-
tem can handle at any one time. See How much call capacity does
your business need?, Bandwidth (Sept. 17, 2020), https://www
.bandwidth.com/blog/how-much-call-capacity-does-your-busi-
ness-need/. A business that employs 100 people, for example, may
wish to assign each employee her own phone number, and it may
wish to have additional phone numbers for departments or other
aspects of the business. Besides allowing direct contact with those
outside the business, this type of setup also permits internal em-
ployee-to-employee communications. But most businesses of this
size will not require a communications system that will allow all
100 employees to be on external phone calls at the same time.
Modern phone-communications services are able to offer such
business customers telecommunications services that suit their
needs without providing them with the capacity for each of their
assigned phone numbers to be in use concurrently. See id.Here’s why the concept of concurrent calling capacity is im-
portant: Under Alabama’s ETSA provision, the 911 Districts took
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a position that the 911 Fee Parity Provision required only that the
absolute base 911 fees they charged non-VoIP and VoIP service
providers be the same, regardless of the systems’ concurrent call
capacity. This construction would allow the 911 Districts to charge
911 fees per access line to non-VoIP customers but per phone num-
ber to VoIP customers, as long as the base fee amount charged was
the same for each. A fee structure like this would result in higher
total charges on VoIP customers than on non-VoIP customers.
To understand why, consider a VoIP and non-VoIP cus-
tomer that each bought ten access lines capable of outbound calling
and that each obtained twenty telephone numbers for internal
communications between the employees. If the fee were $1.00 per
access line for a non-VoIP customer and $1.00 per assigned tele-
phone number for a VoIP customer, the absolute base fee charged
to customers of both types of services—$1.00—would be the same.
But the non-VoIP customer would be charged a total of $10.00
($1.00 times 10 access lines), while the VoIP customer would have
to pay $20.00 ($1.00 times 20 individual phone numbers) for the
same concurrent outbound call capacity. As a result, if a customer
switched from a non-VoIP telecommunications service to a VoIP
one with the same concurrent outbound calling capacity and the
same number of individual phone numbers, BellSouth asserted
that such a customer would “see its monthly telephone bill increase
substantially.”
With that basic understanding, we return to the order the
Commission issued in response to the district court’s referral. The
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18 Opinion of the Court 19-15072
Commission’s order interpreted the 911 Fee Parity Provision, 47
U.S.C. § 615a-1(f)(1), to “prohibit[] non-federal governmental enti-
ties from imposing 911 fees or charges on VoIP services in any man-
ner that would result in a subscriber to such VoIP services paying
a total amount of 911 fees or charges that exceeds the total amount
of 911 fees or charges that the same subscriber would pay for a tra-
ditional telecommunications service with the same 911 outbound
calling capability or same quantity of units upon which 911 fees are
imposed for traditional telecommunications services.”
In other words, the oranges-to-oranges comparison the
Commission’s interpretation of § 615a-1(f)(1) requires is based on
the unit of outbound concurrent calling capacity—effectively, the
same ability to burden 911 services at any point in time—not the
base fee. So under this construction, the number of phone num-
bers a VoIP customer has is necessarily irrelevant to the maximum
amount the VoIP customer may be charged if it is not possible for
the VoIP customer to use all its phone numbers simultaneously to
call 911. Rather, both VoIP and non-VoIP customers may be
charged the 911 fee for only as many numbers as they have the
ability to simultaneously use to call 911. So VoIP and non-VoIP
customers pay the same total 911 fee for the same maximum con-
current call capacity, without respect to how the system is config-
ured.
Beyond this, though, the Commission declined to rule fur-
ther on the specific arguments the parties raised in the district-court
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19-15072 Opinion of the Court 19
proceeding, including whether the 911 Fee Parity Provision
preempted ETSA.
The 911 Districts now appeal the Commission’s Order di-
rectly to us under the Hobbs Act, 28 U.S.C. § 2342, which endows
federal courts of appeals with “exclusive jurisdiction to enjoin, set
aside, suspend (in whole or in part), or to determine the validity of”
Commission rulings. See Mais v. Gulf Coast Collection Bureau,
Inc., 768 F.3d 1110, 1113 (11th Cir. 2014) (“In the Hobbs Act, 28
U.S.C. § 2342, Congress unambiguously deprived the federal dis-
trict courts of jurisdiction to invalidate FCC orders by giving exclu-
sive power of review to the courts of appeals.”). In particular, the
Hobbs Act authorizes us to review orders “adopted by the Com-
mission in the avowed exercise of its rule-making power” and that
“affect or determine rights generally.” Id. at 1121 (citing Columbia
Broad. Sys. v. United States, 316 U.S. 407, 417 (1942)).
By the terms of the Hobbs Act, the 911 Districts’ appeal is
against the Commission. See 28 U.S.C. § 2344 (“The action shall
be against the United States.”). For its part, BellSouth has inter-
vened as an interested party, as have two trade groups—
USTelecom (The Broadband Association) and NCTA (The Inter-
net and Television Association)—to defend the Commission’s in-
terpretation of the 911 Fee Parity Provision.
II.
Under the Hobbs Act, when we conduct our review, we ap-
ply the standards from the Administrative Procedure Act (“APA”).
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20 Opinion of the Court 19-15072
See RTC Transp., Inc. v. I.C.C., 708 F.2d 617, 619 (11th Cir. 1983).
The APA, in turn, requires us to set aside “agency action, findings,
and conclusions found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. §
706(2), (2)(A). This deferential standard seeks only a “rational con-
nection between the facts found and the choice made.” Motor Ve-
hicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463
U.S 29, 43 (1983) (citation and internal quotation marks omitted).
Our sole mission in conducting a review under this standard, then,
“is to ensure that the agency came to a rational conclusion.” Sierra
Club v. Van Antwerp, 526 F.3d 1353, 1360 (11th Cir. 2008) (citation
and internal quotation marks omitted).
III.
In reviewing the FCC’s construction of a statute that it ad-
ministers, we apply the two-step process that Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842
(1984), sets forth. See Nat’l Ass’n of State Util. Consumer Advocs.,
457 F.3d 1238, 1253 (11th Cir. 2006). At Chevron’s first step, we
evaluate “whether Congress has spoken to the precise question at
issue.” Id. (quoting Chevron, 467 U.S. at 842). “If the intent of
Congress is clear, that is the end of the matter; for the court, as well
as the agency, must give effect to the unambiguously expressed in-
tent of Congress.” Id. at 842–43; cf. Kisor v. Wilkie, 139 S. Ct. 2400,
2415 (2019) (before deferring to an agency’s reading of its own am-
biguous regulation, a court must “carefully consider the text,
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19-15072 Opinion of the Court 21
structure, history, and purpose of a regulation, in all the ways it
would if it had no agency to fall back on”).
But if, after employing all the “traditional tools of statutory
construction,” Chevron, 467 U.S. at 842 n.9, the statute remains
genuinely ambiguous on the specific issue, we proceed to Chev-
ron’s second step, id. at 843. There, we ask “whether the agency’s
answer is based on a permissible construction of the statute.” Id.We start with Chevron step one. First, we must identify the
specific question we seek to answer. Here, that question asks
whether the 911 Fee Parity Provision permits a non-federal gov-
ernment entity to charge a given class of VoIP subscribers a higher
total 911 fee than the same class of non-VoIP subscribers for the
same concurrent call capacity if the entity uses the same base fee
but different units of measurement to assess the fees. As we explain
below, we conclude that it does not. The 911 Fee Parity Provision
precludes any unit of measurement that results in higher total fees
for VoIP subscribers than for non-VoIP subscribers with the same
outbound concurrent call capacity.
As we’ve mentioned, we ascertain congressional intent by
employing the “traditional tools of statutory construction” id. at
843 n.9, as we examine the text of the statute, its structure, its his-
tory, and its stated purpose, Animal Legal Def. Fund v. U.S. Dep’t
of Agric., 789 F.3d 1206, 1215 (11th Cir. 2015); cf. Kisor, 139 S. Ct.
at 2423-24 (explaining that exhausting all the tools in the regula-
tory-construction context requires a court to “make a
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22 Opinion of the Court 19-15072
conscientious effort to determine [the meaning of the regulation],
based on indicia like text, structure, history, and purpose”).
Starting with the text of the statute, “we presume that Con-
gress said what it meant and meant what it said.” Harry v.
Marchant, 291 F.3d 767, 770 (11th Cir. 2002) (en banc). We focus
initially on the last sentence of Section 615a-1(f)(1). It states, “For
each class of subscribers to IP-enabled voice services, the fee or
charge may not exceed the amount of any such fee or charge appli-
cable to the same class of subscribers to telecommunications ser-
vices.” 47 U.S.C. § 615a-1(f)(1).
Our first clue comes from the structure of the sentence:
here, the prepositional phrase “For each class of subscribers to IP-
enabled voice services” contextualizes the rest of the sentence. So
in comparing whether the fees for VoIP subscribers and for the
same class of non-VoIP subscribers is the same, we consider what
the fee is from the perspective of “each class of subscribers to IP-
enabled voice services.”
Keeping that in mind, we move on to the phrase “imposition
and collection” that appears in an earlier sentence in the provision:
“Nothing [in the relevant congressional Acts and Commission ac-
tions] shall prevent the imposition and collection of a fee or charge
applicable to commercial mobile services or IP-enabled voice ser-
vices . . . .” 42 U.S.C. § 615a-1(f)(1) (emphasis added). “And” means
“[t]ogether with or along with; in addition to; as well as.” And, The
American Heritage Dictionary of the English Language, at 66 (4th
ed. 2000). So the use of “and” in the phrase “imposition and
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19-15072 Opinion of the Court 23
collection” requires that the “fee or charge” be the same for sub-
scribers to VoIP services and subscribers to non-VoIP services for
both any 911-related fee the 911 Districts impose on and any 911-
related fee they collect from those classes of subscribers. In other
words, to the extent that a fee-assessment method causes the fee
imposed on VoIP and non-VoIP subscribers to be the same but the
fee collected from VoIP and non-VoIP subscribers to be different,
that fee-assessment method would not satisfy the 911 Fee Parity
Provision. Putting that together with the sentence’s focus on the
perspective of “each class of subscribers to IP-enabled voice ser-
vices,” we know that both the fee imposed on and the fee collected
from VoIP subscribers must not exceed the fee for the same class
of non-VoIP subscribers.
Next, we look at the word “collection.” “To collect” means
“[t]o bring together in a group or mass; gather.” Collect, The
American Heritage Dictionary of Language, at 362 (4th ed. 2000).
Though it also means “[t]o call for and obtain payment of,” id., in
the context of § 615a-1(f)(1)—which indicates that “collection” is in
association with a “fee or charge” on “class[es] of subscribers to IP-
enabled voice services”—we understand “collection” here to refer
to the total fees or charges imposed on a given “class of subscribers
to IP-enabled voice services.”
The word “amount” that appears in the last sentence of the
911 Fee Parity Provision similarly supports that conclusion.
“Amount” means “[t]he total of two or more quantities; the aggre-
gate.” Amount, The American Heritage Dictionary of the English
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24 Opinion of the Court 19-15072
Language, 61 (4th ed. 2000). So in this context, we read a limitation
on the amount of fees collected as a limitation on the aggregate of
the fees collected. Given our directed perspective, this means we
must consider, from the point of view of any “class of subscribers
to IP-enabled voice services,” the total of the fees imposed or col-
lected.
Having put certain terms within Section 615a-1(f)(1) under
the microscope, we zoom out now for a bird’s eye view of the en-
tire provision and consider how these terms fit into it. While the
last sentence emphasizes ensuring that fees for VoIP subscribers
don’t exceed fees for non-VoIP subscribers, the rest of Section 615a-
1(f)(1) addresses what the “fee[s] or charge[s]” are for: “the support
or implementation of 9-1-1- or enhanced 9-1-1 services.” So the
point of the 911 Fee Parity Provision, then, is to ensure that VoIP
and non-VoIP subscribers financially support 911 facilities to the
same extent that they burden the hotline service.
Of course, since 911 is a phone service, it can be burdened
only to the extent that phones are able to reach it. As a result, max-
imum concurrent call capacity—the greatest number of individual
phone numbers, assigned to a single user, that can simultaneously
make an outbound call to 911—is necessarily the unit that
measures the amount of burden a user imposes, regardless of the
number of individual phone numbers a user may have. For that
reason, we think the text of Section 615a-1(f)(1) requires that any
911 fees non-governmental entities impose and collect must be
based on maximum concurrent call capacity.
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19-15072 Opinion of the Court 25
The 911 Districts disagree. They argue that the 911 Fee Par-
ity Provision requires only that the base fee—think $1.00 from our
example where the non-federal government entity charges VoIP
customers $1.00 per individual telephone number and non-VoIP
customers $1.00 per access line—not the total fee, for VoIP and
non-VoIP subscribers be the same. The 911 Districts base their ar-
gument primarily on the words “fee” and “charge.” We are not
persuaded.
First, the 911 Districts observe that the last sentence of Sec-
tion 615a-1(f)(1) uses the singular form of “fee” and “charge.” By
employing the singular form, the 911 Districts insist, Congress in-
tended to regulate only the base fee, not the total fees imposed. In
further support of this position, the 911 Districts rely on the dic-
tionary definition of “fee”: “a fixed charge.” Appellants’ Br. at 13
(quoting Fee, Merriam-Webster Dictionary (online ed.),
https://www.merriam-webster.com/dictionary/fee). They say
that for a “fixed charge” to be the same, it necessarily must reflect
the base fee or charge because “[o]nce the assessable units are con-
sidered, the fee is no longer a “fixed charge.” Rather, the 911 Dis-
tricts reason, it changes depending on the number of assessable
units.
But 1 U.S.C. § 1 provides that when we determine the mean-
ing of any Act of Congress, “unless the context indicates other-
wise—words importing the singular include and apply to several
persons, parties, or things.” Here, the 911 Districts identify no basis
for finding that “the context indicates otherwise.” Nor are we
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26 Opinion of the Court 19-15072
aware of any. To the contrary, and as we have noted above and
explain further below, we conclude the opposite.
In further support of their theory that “fee” refers to a base
fee and not the total fees, the 911 Districts argue that the Commis-
sion’s own use of the word “fee” shows that it understands the
word to refer to the base fee. In support of this contention, the 911
Districts point out that the Commission prepares an annual report
to Congress, under the NET 911 Act. See 47 U.S.C. § 615a-1. In
that report, the 911 Districts note, the Commission includes a chart
of each reporting jurisdiction’s “fee,” and it lists the base fee of each
reporting jurisdiction. From this, the 911 Districts conclude that
the Commission’s own usage of the word “fee” shows that it un-
derstands the word to mean the base fee, not the aggregate fee.
Similarly, the 911 Districts invoke state statutes’ use of the terms
“fee” and “charge” to support their position that that “the common
usage” of those terms “in the singular represents the base fee or
rate.” Appellant’s Br. at 14.
But even assuming the Commission’s use of the word “fee”
in its NET 911 Act reports somehow necessarily means that the
Commission understands the word “fee” in subsection 615a-1(f)(1)
to mean solely base fee—a position that is contradicted by the very
reason this case is on appeal—that does not bear on our independ-
ent duty at Chevron’s first step to discern the plain meaning of the
statute, regardless of what the Commission may think. Nor have
the 911 Districts identified any reason to think that Congress meant
to incorporate state usage into a provision of federal law intended
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19-15072 Opinion of the Court 27
to limit state authority to impose 911 fees. And neither the Com-
mission’s use of “fee” in its NET 911 Act report charts nor the
states’ use of “fee” in their respective statutes, in any case, even
purports to account for the rest of the statutory text of subsection
615a-1(f)(1)—especially the subsection’s goal of ensuring VoIP sub-
scribers not pay more than non-VoIP subscribers for imposing the
same burden on the 911 system.
Besides the language of the 911 Fee Parity Provision, the
structure of the NET 911 Act also suggests that subsection 615a-
1(f)(1) seeks to equalize the aggregate fees VoIP and non-VoIP sub-
scribers must pay to support the 911 system, based on the burden
they place on it. Indeed, the NET 911 Act’s structure reflects re-
peatedly its goal of ensuring equality of access to and financial re-
sponsibility for 911 benefits and burdens, between VoIP and non-
VoIP subscribers, as it relates to the nation’s phone systems. For
example, Section 615a is specifically entitled, “Service provider par-
ity of protection.” Within that section, three of the subsections also
refer to parity: “Provider parity,” § 615a(a); “User parity,” §
615a(b); and “PSAP parity,” 7 § 615a(c). All these sections ensure
that VoIP providers and subscribers shall not receive lesser benefits
or access to 911 service than non-VoIP providers and subscribers.
And within Section 615a-1, subsection (b) is entitled, “Parity
for IP-enabled voice service providers.” That subsection requires
those with control over capabilities to provide 911 and enhanced
7 As a reminder, “PSAP” refers to “public safety answering point.”
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28 Opinion of the Court 19-15072
911 service to offer those capabilities to VoIP service providers “on
the same rates, terms, and conditions” that they do for non-VoIP
service providers.
All these parity provisions make even more sense in the
broader context of the NET 911 Act. Section 942, when amended
by the Act, required the development of a “national plan for mi-
grating to a national IP-enabled emergency network capable of re-
ceiving and responding to all citizen-activated emergency commu-
nications and improving information sharing among all emergency
response entities.” 47 U.S.C. § 942(d)(1) (2008). If providers of and
subscribers to VoIP services had to pay more in fees than providers
of and subscribers to non-VoIP services for the same access to the
911 hotline, that would place obstacles in the path of updating the
nationwide 911 system. In short, the structure of the Act suggests
overall congressional intent that VoIP service providers and sub-
scribers not be penalized financially merely because they use VoIP
technology, as opposed to non-VoIP technology.
Next—and in this case, finally—we consider the NET 911
Act’s purpose: “[t]o promote and enhance public safety by facili-
tating the rapid deployment of IP-enabled 911 and E-911 services,
encourage the Nation’s transition to a national IP-enabled emer-
gency network, and improve 911 and E-911 access to those with
disabilities.” Pub. L. 110-283, 122 Stat. 2620. As we have explained,
the 911 Districts’ reading of the 911 Fee Parity Provision to allow
the imposition of higher total fees on VoIP subscribers than on
non-VoIP subscribers, as long as the base fee is the same, would
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19-15072 Opinion of the Court 29
create a financial disincentive to potential VoIP providers and sub-
scribers alike to invest in VoIP services. Contrary to Congress’s
stated desire to “facilitate[e] the rapid deployment of IP-enabled
911 . . . services,” id. (emphasis added), the 911 Districts’ proposed
reading of the 911 Fee Parity Provision would disincentivize—and
therefore delay—transition to VoIP services. That reading, of
course, would impede Congress’s stated purpose in enacting the
Net 911 Act.
In sum, 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. Because the statute,
its structure, and its stated purpose yield an incontrovertible an-
swer, we need not also consult the legislative history here. For the
same reason—“the intent of Congress is clear[—]that is the end of
the matter,” and we do not proceed to Chevron step two. And so
we find no reason to set aside the Commission’s decision as arbi-
trary, capricious, or contrary to law.
IV.
For these reasons, we deny the petition for review.
PETITION DENIED; ORDER AFFIRMED.