A Reply Brief in support of Emergency Motion for Partial Stay was filed today by Nuvio and other appellants with the U.S. Court of Appeals DC Circuit to prevent the FCC e911 rules to go into effect on November 28th. I have a copy of the filing and haven't entirely digested it all, but here are some excerpts taken directly from the filed brief.

In this case, Movants challenge the FCC’s adoption of rules that require all “interconnected VoIP providers” (“IVPs”) to implement nationwide E-911 service capabilities within an arbitrary 120-day period, and prohibit them from serving any customers where these capabilities do not exist. Respondents, not surprisingly, focus on the public interest in having emergency services available, and wax eloquent about the importance of public safety, while remaining vague about the feasibility of compliance with the 120-day mandate.

Movants share the FCC’s concern for public safety, but cannot perform the impossible. The agency, in its understandable zeal to prevent “tragedies,” rushed to an emotional decision without considering the practical implications of its requirements. The issue presented by the instant Motion is not whether VoIP users should have access to E911 services. The Court may agree that such a requirement is reasonable, and still conclude that it was arbitrary and capricious for the FCC to adopt a patently infeasible implementation schedule and to exclude businesses from the market when they can’t meet it. Respondents contend that IVPs will not sustain irreparable harm absent a stay, because of the FCC’s eleventh-hour Public Notice (“Notice”) saying it will not enforce the rules to the extent they require disconnection of existing customers.

The Notice is irrelevant because it does not eliminate the binding effect of the rules, nor does it prevent the agency from taking enforcement action at its discretion. Further, Movants have shown that their businesses will be severely and irreparably disrupted even if they do not have to disconnect existing customers. Respondents deny that the FCC’s treatment of VoIP departed dramatically from its consideration of 911 calling requirements for other services, particularly wireless. Their argument, however, relies on a series of non sequiturs, and fails to provide the required explanation for an abrupt change in agency policy.

Although cell-phone service was introduced in the 1980’s, the FCC did not require that these phones be capable of handling 911 calls until 1996.3 It then gave wireless carriers a full year to implement basic 911 service, and 18 months to be capable of relaying a caller’s telephone number to the 911 system.

Here, by contrast, it required implementation of full enhanced 911 capabilities (including relaying both telephone numbers and locations) within 120 days. Respondents suggest that implementation for VoIP should be easier because it can reuse some “network components” originally developed for wireless 911. (Opp. at 9-10.) This argument is disingenuous at best, considering that the FCC has failed to take essential steps to make those network components available to IVPs. Despite being told in August that appointment of a “Routing Number Administrator” was essential to permit IVPs to use the “p-ANI” codes developed for wireless 911, the agency still has not done so.

It also refused to impose any obligation on traditional telephone companies to provide network access to IVPs, although the wireless carriers do have an enforceable right to such access. Due to these FCC omissions, it is likely to be harder, not easier, for IVPs to implement 911 than it was for wireless carriers.

The filed brief concludes with "For the foregoing reasons, Movants respectfully request that the Court stay the effectiveness of 47 C.F.R 9.5(b) and (c), to the extent they require full implementation of E911 access for both existing and new customers of nomadic services by November 28, 2005." 

I agree with the Nuvio filing and have already expressed my disgust with the FCC's decision, so let's hope Nuvio and specifically the courts rule wisely and according to past prescedent.