Kristin Brooks Hope Center v. Federal Communications Commission and United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2010 Decided December 3, 2010
No. 09-1310
KRISTIN BROOKS HOPE C ENTER ,
P ETITIONER
v.
FEDERAL C OMMUNICATIONS C OMMISSION
AND UNITED S TATES OF AMERICA ,
R ESPONDENTS
On Petition for Review of an Order
of the Federal Communications Commission
Barbara A. Miller argued the cause of the petitioner.
With her on the briefs were Danny E. Adams and Ira T.
Kasdan.
Pamela L. Smith, Counsel, Federal Communications
Commission, argued the cause for respondent. With her on the
brief were Catherine O’Sullivan and Robert J. Wiggers,
Attorneys, U.S. Department of Justice, Austin C. Schlick,
General Counsel, Federal Communications Commission,
Jacob M. Lewis, Acting Deputy General Counsel, and Daniel
M. Armstrong, Associate General Counsel. Robert B.
Nicholson, Attorney, U.S. Department of Justice, and Richard
K. Welch, Deputy Associate General Counsel, Federal
Communications Commission, entered appearances.

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Before: HENDERSON, Circuit Judge, W ILLIAMS and
R ANDOLPH , Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
W ILLIAMS.
W ILLIAMS, Senior Circuit Judge: The Kristin Brooks
Hope Center (the “Center”) is a nonprofit organization that
has operated suicide prevention hotlines since 1998. With the
Center facing financial difficulties that risked causing the
hotlines’ disconnection, the federal Substance Abuse and
Mental Health Services Administration (“SAMHSA”) asked
the Federal Communications Commission in December 2006
to reassign five of the Center’s toll-free hotline numbers to
SAMHSA. The FCC granted the request in part, temporarily
reassigning three numbers in January 2007. That November,
SAMHSA requested that the FCC make the reassignment of
numbers permanent. The Center protested, but the FCC
granted SAMHSA’s request. The Center now argues that the
FCC’s decision to permanently reassign the numbers was
“arbitrary, capricious, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A). We agree.
* * *
In 1998 H. Reese Butler founded the Center in the
memory of his late wife, who had committed suicide while
suffering from post-partum depression. The Center operates
several toll-free suicide prevention hotlines that route callers
to a trained crisis counselor in the caller’s local area. The
numbers at issue here, 1-888-SUICIDE, 1-800-SUICIDE, and
1-877-SUICIDA, were among the Center’s earliest hotline
numbers. Over time the Center has expanded to include many
other numbers, including some targeted at particular at-risk

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groups, such as veterans, new mothers, and young people.1
In 2006, the Center found itself in serious financial
trouble. For some years, it had received funds as a
subcontractor to the American Association of Suicidology,
which in turn was funded by a government grant. The
Center’s funding dried up when the Association’s grant
expired in 2005. The Center eventually fell behind in
payments to its then current phone service provider and was in
default of payment to its former provider. (It appears to have
had trouble only with 1-800-SUICIDE, evidently because
usage on the other hotlines was much lighter.) In August
2006, Secretary of Health and Human Services Michael O.
Leavitt wrote to the Chairman of the FCC to request that the
FCC reassign 1-800-SUICIDE from the Center to SAMHSA,
a subagency of HHS. Letter of Aug. 25, 2006. SAMHSA
supports suicide prevention efforts, including operation of the
National Suicide Prevention Lifeline (1-800-273-TALK), a
hotline, not unlike those of the Center, connecting callers with
crisis counseling centers. Because SAMHSA could operate
the Center’s numbers in parallel to its own, Secretary Leavitt
argued that transfer would prevent disruption to the hotlines
and the loss of life that might occur if the Center’s service
provider disconnected 1-800-SUICIDE.
The Center’s goal is to operate and publicize these hotlines; it
does not run the counseling centers or train the counselors.
In response, the Wireline Competition Bureau within the
FCC granted a temporary reassignment of the three suicide
prevention hotlines in January 2007. In the Matter of Toll
1 The Center’s other numbers include 1-800-SUICIDA, 1-800-
442-HOPE, 1-877-VET2VET, 1-800-772-9498, 1-800-827-7571, 1-
866-771-1276, 1-866-YOUTHLINE, 1-877-YOUTHLINE, 1-888-
861-8460, 1-877-495-0009, 1-800-GRADHLP, 1-877-GRADHLP,
and 1-800-PPDMOMS.

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Free Service Access Codes, 22 FCC Rcd 651 (2007). Under
47 U.S.C. § 251(e)(1), the FCC has plenary authority “over
those portions of the North American Numbering Plan that
pertain to the United States.” The Commission’s
implementation of this authority includes its adoption of a rule
stating that “[t]oll free numbers shall be made available on a
first-come, first-served basis unless otherwise directed by the
Commission.” 47 C.F.R. § 52.111. Here the Bureau directed
“otherwise.” Given the ongoing dispute between the parties
and the potentially tragic consequences of disruption, it found
that “a deviation from the first-come, first-served rule is
warranted in this extraordinary, emergency situation,” and it
ordered the requested transfer. 22 FCC Rcd 651 at ¶¶ 8, 11.
In November 2007 (and in additional letters over the next
two years), SAMHSA requested that the FCC permanently
reassign the suicide prevention hotlines, arguing that the
hotlines are a crucial public health resource and that reversion
to the Center risked another public safety emergency, given
the Center’s financial instability. The Center responded,
repeatedly, that it had resolved its outstanding debts, engaged
in a fundraising campaign resulting in $240,000 in cash
reserves, and negotiated a new agreement with a phone
service provider. It also argued that there was no current
emergency warranting permanent reassignment. In October
2009, the FCC granted SAMHSA’s request, permanently
reassigning the suicide prevention hotlines. U.S. Dept. of
Health and Human Services Substance Abuse and Mental
Health Services Administration Petition for Permanent
Reassignment of Three Toll Free Suicide Prevention Hotline
Numbers, Toll Free Service Codes, 24 FCC Rcd 13022 (2009)
(the “FCC Decision”). The Center appealed, arguing that the
FCC’s decision was arbitrary and capricious under 5 U.S.C.
§ 706(2)(A) and was an unconstitutional taking under the
Fifth Amendment to the Constitution.

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* * *
When evaluating agency action that is alleged to be
arbitrary or capricious under 5 U.S.C. § 706(2)(A), our
primary task is to ensure that the agency has “examine[d] the
relevant data and articulate[d] a satisfactory explanation for its
action including a ‘rational connection between the facts
found and the choice made.’” Motor Vehicle Mfrs. Ass'n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(quoting Burlington Truck Lines, Inc. v. United States, 371
U.S. 156, 168 (1962)). The agency’s explanation cannot
“run[] counter to the evidence,” id., and it must “enable us to
conclude that the [agency’s action] was the product of
reasoned decisionmaking.” Id. at 52.
By way of background, we note that 47 C.F.R. § 52.111
is one of several FCC provisions governing the allocation of
toll-free numbers. Absent the Commission’s temporary
reassignment, it appears that the hotlines would have gone
into either “disconnect” or “suspend” status, and would either
have returned to the Center’s use or, after four or eight
months, respectively, would have lapsed back into the general
pool for reassignment. See id. § 52.103. Because of the
Center’s financial problems, of course, service for persons
contemplating suicide might have been severely limited. (In
“disconnect” status there would likely have been “an
exchange carrier intercept recording.” See id. § 52.103(a)(2).
According to the phone service provider’s lawyers, it would
on termination of service have “post[ed] an outgoing message
directing callers to call 1-800-273-TALK [the National
Suicide Prevention Lifeline] for assistance.” Joint Appendix
213.)
Explaining its permanent reassignment decision, the FCC
said that its “overriding priority [was] the long-term stability
of the Hotlines and, in turn, avoidance of another potential

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public safety crisis in the future.” FCC Decision, 24 FCC Rcd
at 13030 ¶14. To that end, it would “choose the entity [it]
believe[s] is more capable of operating the Hotlines long-
term.” Id. It argued that SAMHSA was superior to the
Center in both financial stability and quality of services. See
id. at 13033 ¶21 (finding that SAMHSA will be the best
provider of “financially stable, top-quality service for the
long-term”). We think the FCC failed to provide a reasonable
explanation on both counts.
In concluding that SAMHSA “best ensures the long-term
financial viability of the Hotlines,” id., the FCC relied on
unsupported assertions regarding the Center’s financial
stability. The Center reported that it had accumulated
$240,000 in cash reserves, which could cover two years of
operations, and that it had reached over $1 million in existing
and pledged assets through an expanded fundraising
campaign. Letter from Danny E. Adams, Counsel to the
Center, to Michael J. Copps, Acting Chairman, FCC, June 15,
2009, at 4. Even though the FCC assumed the Center had
enough funds for two years of service, it was “not convinced”
that this was enough “to prevent future disruptions.” FCC
Decision, 24 FCC Rcd at 13030 ¶15. Looking beyond two
years and noting the rise in volume of calls, it worried that
“we could be faced with a similar situation as occurred
previously in which [the Center] was unable to pay its service
provider for telecommunication services and the service
provider threatened disconnection.” Id. at 13030 ¶16.
The Commission’s extrapolation from the Center’s past
financial difficulties was quite a leap. The history of those
difficulties—which arose at least in part from its transition
from government grants to private fundraising—seems to
undermine a strong inference that recurrence was likely. But
the FCC did not explore the circumstances under which the
Center’s financial troubles arose, and as a result did not

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explain whether it believed those particular conditions were
likely to recur or whether some other trouble might befall the
Center. Fear may have supplanted reason.
The Commission also set the bar for the Center curiously
high. Even with its improved fundraising efforts, it said, the
Center could not “guarantee” funding for longer than two
years, whereas SAMHSA “can guarantee it indefinitely.” Id.
at 13031 ¶17. Although the FCC’s attention to long-term
stability was driven by the past instability of the hotlines, the
Commission did not explain or even hint at what duration of
time would be sufficient. Surely “indefinitely” cannot be the
standard. No private actor could ever satisfy that test, and the
FCC’s principle cannot be that the government always wins.
For that matter, government agencies like SAMHSA can
hardly “guarantee” funding “indefinitely”; their funds depend
entirely on the appropriations of Congress.
Although the FCC faced a challenging line-drawing
problem, its justifications for favoring SAMHSA over the
Center were inadequately explained. It’s a rare organization
whose treasury is so ample that it is sure of being able to
operate decades into the future. For-profit organizations,
nonprofit organizations, and governments alike replenish their
treasuries at regular intervals—through revenues from sales,
fundraising campaigns, or taxes. (Like death, taxes may be
certain, but their yield and disposition are not.) A nonprofit
like the Center surely could have two years of funding
available at present and in the course of those two years, raise
more money for later years of operations. Yet the FCC seems
not to have considered this possibility seriously, and it
certainly provided no explanation for why the risks of
dependence on private fundraising would be so detrimental to
public safety as to justify insisting on guarantees for more
than two years. It simply assumed that two years of funding
was not enough. The Center’s financial strategy could

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conceivably be too risky to maintain the hotlines, but the FCC
has not explained why.
The FCC itself noted that SAMHSA’s budget period for
the hotlines was established by a five-year grant awarded in
2007. See id. at 13033 ¶22 n.87. As a result, SAMHSA’s
dedicated funding stream ends in 2012—only a little more
than two years from the time of the FCC’s decision. Yet the
FCC did not explain why the Center’s two years of funding
was not acceptable, while SAMHSA’s barely longer term
was.
In its evaluation of the Center’s and SAMHSA’s quality
of service, the Commission’s reasoning is also obscure. First,
it appears to have given considerable weight to SAMHSA’s
provision of “training, information, stipends, and additional
research funding to assist the crisis centers.” Id. at 13031 ¶17.
But it is unclear how these relate to the FCC’s stated objective
of assuring the “long-term stability” of the hotlines
themselves. Id. at 13030 ¶14. So far as appears, SAMHSA
could readily provide these services to crisis centers if the
Center ran the hotlines.
Similarly, the FCC cited SAMHSA’s partnership with the
Department of Veterans Affairs, which allows callers to the
National Suicide Prevention Lifeline (1-800-273-TALK)—
and since the temporary reassignment, callers to 1-800-
SUICIDE—to press 1 and connect directly with VA suicide
prevention services. See FCC Decision, 24 FCC Rcd at
13031-13032 ¶18; Letter from Eric K. Shinseki, Secretary,
VA, and Kathleen Sebelius, Secretary, HHS, to Michael J.
Copps, Acting Chairman, FCC, May 13, 2009. Again this
seems easily divisible from running the hotlines, especially as
the FCC itself noted that the Center was “willing and eager to
work with the VA” to provide that service. FCC Decision, 24
FCC Rcd at 13028 ¶10 n.43.

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The FCC, to be sure, made some mention of quality
differentials that appear integral to hotline operation. It cited
comments from crisis center managers that SAMHSA’s
operations were well-managed. Id. at 13032 ¶19. But to the
extent that these comments were comparative at all, many of
them focused on the funding troubles the Center had had prior
to the temporary reassignment. See, e.g., Letter from Crisis
Center Directors to FCC, WC Docket 07-271, filed May 11,
2009; Letter from Dale W. Emme and R. Darlene Emme,
Yellow Ribbon, to Michael J. Copps, Acting Chairman, FCC,
June 8, 2009. On the other side of the ledger, the FCC failed
to evaluate evidence offered by the Center. The latter had
explained that it had entered an agreement with the Micktel
Corporation to provide services including routing, reporting,
real-time call tracing, and access to center management tools,
Letter from Danny E. Adams, Counsel, the Center, to Michael
J. Copps, Acting Chairman, FCC, June 15, 2009, at 4, but the
FCC made no effort to compare the quality of Micktel’s
offerings with those available to SAMHSA.
* * *
In light of its failure to provide a reasonable explanation
that connects the “facts found” and the “choice made,”
Burlington Truck Lines, 371 U.S. at 168, the FCC’s decision
is arbitrary and capricious under 5 U.S.C. § 706(2)(A). The
Center also argues that the FCC’s action violates the takings
clause of the Fifth Amendment to the Constitution, but given
our finding that the Commission’s decision is arbitrary and
capricious, we need not address the constitutional question.
We therefore vacate the reassignment of the hotlines and
remand for proceedings consistent with this opinion.
So ordered.

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