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.
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 
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. 
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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.
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 
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 longterm.” 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
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 
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.
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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.