Consumers' Research petitioned the 5th U.S. Circuit Court of Appeals to review and vacate the FCC's approval of the Q3 2023 USF contribution factor, per a filing Friday in case 23-60359. The group has a pending en banc rehearing of its challenge of the FCC's Q1 2022 contribution factor (see 2306300086).
Consumers' Research and the FCC continued to disagree before the 11th Circuit U.S. Court of Appeals on whether the agency does "active oversight" over the Universal Service Administrative Co. and the contribution factor process, in filings posted Thursday in case 22-13315 (see 2306220062). The FCC cited an Office of Managing Director order modifying the Q3 2023 contribution factor after receiving data from USAC as an example of "FCC-imposed adjustments" that are "consistent with USAC’s subordination to the agency." Consumers' Research disagreed, saying the order "merely makes a ministerial adjustment to USAC's calculations" and wasn't "issued or directly approved by the FCC commissioners themselves."
The 5th U.S. Circuit Court of Appeals approved a request Thursday for an en banc rehearing of Consumers' Research's challenge of the FCC's method for funding the USF. In March, a three-judge panel ruled unanimously against Consumers' Research, saying the FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., and Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF (see 2303240049).
The 5th U.S. Circuit Court of Appeals approved a request for an en banc rehearing of Consumers' Research's challenge of the FCC's method for funding the USF. In March, a three-judge panel ruled unanimously against Consumers' Research, saying the FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., and Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF.
A panel of judges on the 11th Circuit U.S. Court of Appeals pressed Consumers' Research Wednesday on its argument that the FCC violated the nondelegation doctrine by approving calculations provided by the Universal Service Administration Co. to determine quarterly USF contribution factors. Judge Charles Wilson during oral argument in case 22-13315 asked about whether any issues with the intelligible principles are articulated in Communications Act Section 254. Consumers’ Research attorney Trent McCotter argued “the FCC itself has stated that they are aspirational only,” to which Wilson noted the U.S. Supreme Court called it a "pretty lenient" standard. The FCC, not USAC, acts ministerially in setting quarterly contribution factors, McCotter said, saying the USF statute “contains no such express limitations or rates or formulas.” Judge Kevin Newsom asked what sort of agency participation should be permissible, noting the leniency of the statute at issue. McCotter cited a dissent from Justice Neil Gorsuch that argued an agency “could undertake a particular fact finding to fill in the gaps” so Congress could direct the FCC to calculate the difference between particular prices. “So that's the best authority that you can cite in support of your position as a dissent?” Newsom asked, noting he wasn't aware of any authority after the 1930s being struck down for violating the nondelegation doctrine. Judge Wilson asked "so that the record does reflect that in the past" whether the FCC rejected or modified USAC calculations. FCC attorney Adam Crews noted several instances of the agency doing so and said the commission is "not often intervening" or changing calculations it receives "because what USAC is doing is so routine."
A panel of judges on the 11th Circuit U.S. Court of Appeals pressed Consumers' Research Wednesday on its argument that the FCC violated the nondelegation doctrine by approving calculations provided by the Universal Service Administration Co. to determine quarterly USF contribution factors. Judge Charles Wilson during oral argument in case 22-13315 asked about whether any issues with the intelligible principles are articulated in Communications Act Section 254. Consumers’ Research attorney Trent McCotter argued “the FCC itself has stated that they are aspirational only,” to which Wilson noted the U.S. Supreme Court called it a "pretty lenient" standard. The FCC, not USAC, acts ministerially in setting quarterly contribution factors, McCotter said, saying the USF statute “contains no such express limitations or rates or formulas.” Judge Kevin Newsom asked what sort of agency participation should be permissible, noting the leniency of the statute at issue. McCotter cited a dissent from Justice Neil Gorsuch that argued an agency “could undertake a particular fact finding to fill in the gaps” so Congress could direct the FCC to calculate the difference between particular prices. “So that's the best authority that you can cite in support of your position as a dissent?” Newsom asked, noting he wasn't aware of any authority after the 1930s being struck down for violating the nondelegation doctrine. Judge Wilson asked "so that the record does reflect that in the past" whether the FCC rejected or modified USAC calculations. FCC attorney Adam Crews noted several instances of the agency doing so and said the commission is "not often intervening" or changing calculations it receives "because what USAC is doing is so routine."
An upcoming Supreme Court decision in Biden v. Nebraska, which concerns the White House’s student loan forgiveness program, could clarify to what degree the court’s major questions doctrine (see 2302080064) could be used to challenge the actions of federal agencies such as the FCC, said HWG's Chris Wright and FCC Deputy General Counsel Jacob Lewis Thursday on a virtual FCBA panel.
An upcoming Supreme Court decision in Biden v. Nebraska, which concerns the White House’s student loan forgiveness program, could clarify to what degree the court’s major questions doctrine (see 2302080064) could be used to challenge the actions of federal agencies such as the FCC, said HWG's Chris Wright and FCC Deputy General Counsel Jacob Lewis Thursday on a virtual FCBA panel.
The 6th U.S. Circuit Court of Appeals denied Consumers' Research's petition for an en banc review of an opinion denying its challenge of the FCC's USF 2021 Q4 contribution factor (see 2305100063). No judge sought a vote on the suggestion for rehearing, said an order filed Tuesday in case 21-3886.
The 6th U.S. Circuit Court of Appeals should grant Consumers’ Research’s request for a rehearing of its challenge of the FCC’s USF 2021 Q4 contribution factor because the authority to decide taxing and spending policies can't be "delegated,” said the Competitive Enterprise Institute and the Free State Foundation in an amicus brief Tuesday (docket 21-3886).