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 CENTER,
PETITIONER
v.
FEDERAL COMMUNICATIONS COMMISSION 
AND UNITED STATES OF AMERICA,
RESPONDENTS
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.
Case: 09-1310    Document: 1281077    Filed: 12/03/2010    Page: 1
2
Before: HENDERSON, Circuit Judge, WILLIAMS and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, 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 
Case: 09-1310    Document: 1281077    Filed: 12/03/2010    Page: 2
3
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. 
Case: 09-1310    Document: 1281077    Filed: 12/03/2010    Page: 3
4
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.
Case: 09-1310    Document: 1281077    Filed: 12/03/2010    Page: 4
5
*  *  *
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 
Case: 09-1310    Document: 1281077    Filed: 12/03/2010    Page: 5
6
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
Case: 09-1310    Document: 1281077    Filed: 12/03/2010    Page: 6
7
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 
Case: 09-1310    Document: 1281077    Filed: 12/03/2010    Page: 7
8
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.
Case: 09-1310    Document: 1281077    Filed: 12/03/2010    Page: 8
9
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.
Case: 09-1310    Document: 1281077    Filed: 12/03/2010    Page: 9