RCA, FCC Spar Over Relinquished Universal Service Cash, at Appellate Hearing
The FCC “put the cart before the horse” when it ordered that relinquished Universal Service Fund cash shouldn’t be redistributed among a state’s eligible telecom carriers, telecom lawyer Todd Daubert told an appellate panel Tuesday. That January order paved the way for last month’s universal service order (CD Jan 4 p2), but Daubert,representing the Rural Cellular Association and the Universal Service for America Coalition before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, said the FCC exceeded the “plain language” of Section 254(d) of the Telecom Act.
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That section requires carriers to contribute to “specific, predictable, and sufficient mechanisms established by the Commission to preserve and advance universal service.” Daubert said his client doesn’t necessarily dispute the commission’s right to create a new broadband fund, but he said the commission had no right to take relinquished cash nearly a year before it created the new broadband fund.
But FCC attorney Maureen Flood said that the January order didn’t actually reduce RCA members’ universal service subsidies. “What they're not getting is a consumer-subsidized windfall,” she said, referring to the $530-million-plus that Verizon and Sprint relinquished. She said the D.C. Circuit has held that “established” doesn’t necessarily mean that programs must already be in place before reforms are enacted.
Though last month’s universal service order was not at issue in this case, it was the shadow over all of Tuesday’s proceedings. The commission still hadn’t published the order Tuesday morning, but it filed an executive summary as part of the briefs in this case. The judges -- Merrick Garland, David Tatel and Douglas Ginsburg -- each had several pointed questions about the identical support rule, which Ginsburg likened to a Soviet-style redistribution. Flood assured the panel that last month’s universal service order (CD Oct 28 p1) created a new mobility fund that deposes the identical support rule while still ensuring that wireless carriers get a chance for broadband subsidies. RCA was one of the groups most critical of last month’s USF order.
The most pointed questions were directed at Daubert. He was pressed, mostly by Garland, about whether his client’s member companies could prove they had lost support for “sufficient” phone service. Daubert said aggregate support in states such as New Hampshire and North Carolina has dropped perilously. Ginsburg said RCA had been “misleading” on that question, although “the FCC wasn’t helpful there,” either. Daubert said SouthernLinc Wireless, for instance, has had to shut down 15 wireless towers in Alabama, a state for which wireless is “critical” in emergencies.
Tatel asked about the waiver process in the January order. When Daubert responded that “the FCC hasn’t addressed a single waiver” request, Tatel said that “was a different case.” The point was, the order provided for waivers that would theoretically give extra support to companies in need. If the FCC wasn’t moving fast enough to suit RCA companies, they should have brought a mandamus action, Tatel said. Flood said “only three” of the pending waiver requests have asked for additional money.