Nuvio Corp., a provider of wholesale hosted PBX services, has filed an appeal with the U.S. Court of Appeals for the District of Columbia of the FCCs recent order requiring VoIP service providers to implement E911 services by the end of November.
The company also has asked the court to expedite the schedule for consideration of its appeal because of the fast-approaching Nov. 29 deadline to implement E911. Nuvio chose not to use the alternate means of appeal, a filing for reconsideration with the FCC.
Jason Talley, president and CEO of Nuvio, says the company took court action because in all our discussions with the FCC we were unable to get concrete answers to serious questions. We met with them many times over the last few months and felt filing for reconsideration would not be fruitful.
Talley says he could not get answers to questions such as, what is Nuvio required to do if a customer moves the service to a location where Nuvio does not have E911; what is the mechanism to determine where a customer is located; or what if customers report an address outside the Nuvio 911 area or if they do not report it at all? Nuvio now can offer E911 in about 75 percent to 80 percent of the United States.
They said, We dont know. Why dont you read the order. And that came from numerous bureaus at the FCC and even offices of the FCC, of various commission members and their respective staffs, says Talley. We were dealing with the body that made the rules, and they were either unable, unwilling or unprepared to answer.
Although the specific arguments that Nuvio will make still are being developed, Talley indicated the company will argue that the provisions of the E911 order do not reflect the information the FCC has in its own records. We just dont think that time frame (120 days) is supported in the record at all. It is arbitrary in time and date, and other mediums, such as wireless, have taken a long time [to implement E911], he says. We are arguing that the order is arbitrary in its time line of 120 days. There is nothing in the record that supports that. And, because it is impossible to do in 120 days, so it is an arbitrary and capricious order.
Building a Case
The case is being handled by the law firm of Swidler Berlin LLP, which has represented Vonage Holdings Corp. and other VoIP service providers. Nuvio expects other service providers to join in the appeal. We took the lead on this filing right now because the time constraints that are on us necessitate that someone take action and do it quickly or it will be too late for any meaningful result, says Talley.
Since the filing, Nuvio has done outreach to VoIP service providers and found that many are going to join our cause, but time did not allow us to build a coalition prior to appeal.
Talley says Nuvio supports efforts, such the E911 bill in the U.S. Senate by Senators Conrad Burns (R-Mont.), Hillary Rodham Clinton (D-N.Y.) and Bill Nelson (D-Fla..), and a similar measure in the U.S. House by Congressman Bart Gordon (D-Tenn.), which is similar but includes access to underlying infrastructure, protection from liability, and a time frame and implementation schedule that are realistic and practical. We are not talking 12 years like wireless, but we are talking several years, Talley says.
The Nuvio filing requests a three-week briefing schedule, which is shorter than normal, and we hope to have a decision on a substantive matter by Nov. 7, Talley says.
Nuvio has asked the court to set oral arguments by late October.
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