The FCC avoided a potentially disastrous result when the U.S. Supreme Court upheld the USF contribution factor in its Consumers’ Research decision last month (see 2507020049), HWG’s Chris Wright said during a practitioners panel that was part of an FCBA CLE Tuesday (see 2507150081). “If the case had gone the other way” it would have “called into question almost everything in the Communications Act,” said Wright, a former FCC general counsel.
The U.S. Supreme Court’s decision last month upholding the USF in the Consumers’ Research case was a win for the FCC (see 2507020049), but the fight isn’t over, Jacob Lewis, FCC associate general counsel, said during an FCBA CLE on Tuesday. Lewis warned that Consumers’ Research has already renewed its challenge in the 5th U.S. Circuit Court of Appeals, making a different argument for overturning parts of the fund.
Lawyers for the Schools, Health & Libraries Broadband Coalition and the Benton Institute for Broadband & Society said Monday that the U.S. Supreme Court’s decision last month upholding the USF was a clean win for the program and the FCC (see 2507020049). By rejecting the challenge -- brought by Consumers’ Research, a right-wing group -- SCOTUS lifted a cloud that has loomed over the USF for years, the lawyers said during an SHLB webinar.
Leaders of the House and Senate Commerce committees who are spearheading the bipartisan congressional working group on a USF legislative revamp, which relaunched in June (see 2506120091), told us they plan to begin meeting again this month. But they said they feel less pressure to quickly reach an agreement on legislative recommendations since the U.S. Supreme Court's recent ruling in Consumers’ Research v. FCC, which found that USF’s funding mechanism is constitutional (see 2506270054). Sens. Ben Ray Lujan, D-N.M., and John Thune, R-S.D., formed the working group in 2023 as Communications Subcommittee chairman and ranking member, respectively (see 2305110066).
The U.S. Supreme Court upheld the FCC’s USF contribution scheme in a 6-3 opinion Friday in Consumers’ Research v. FCC, but dissenting and concurring opinions from several conservative justices appeared to invite future challenges, attorneys told us.
The U.S. Supreme Court ruled 6-3 on Friday in Consumers’ Research v. FCC that the USF's contribution scheme doesn’t violate the non-delegation doctrine. The decision overturned an en banc ruling from the 5th U.S. Circuit Court of Appeals. Justice Elena Kagan wrote the majority opinion, while Justice Neil Gorsuch wrote a dissent, which was joined by Samuel Alito and Clarence Thomas.
Consumers’ Research and other conservative interests are once again asking the FCC to zero out the USF contribution factor, this time for Q3 2025. The group filed the day after the FCC Office of Managing Director proposed a contribution factor of 36% for Q3 (see 2506110058). The U.S. Supreme Court is expected to rule in coming days on an appeal of a 5th Circuit en banc decision last summer, which found that the USF contribution factor is a "misbegotten tax.” Justices heard oral argument in that case in March (see 2503260061).
The leaders of the House and Senate Communications subcommittees said Thursday they're reviving the bicameral USF revamp working group, which had paused its work on legislative recommendations last year amid uncertainty following the 5th U.S. Circuit Court of Appeals’ ruling in the Consumers' Research lawsuit against the program’s funding mechanism (see 2407300053). The Supreme Court heard oral arguments for its review of the case in March (see 2503260061). Working group members had considered melding the FCC’s lapsed affordable connectivity program with USF’s Lifeline program and keeping the latter’s narrower eligibility rules (see 2404170066).
Competitive Carriers Association CEO Tim Donovan said he remains worried about what the U.S. Supreme Court will decide on the USF's constitutionality, though he also expressed optimism that the program will survive the Consumers' Research challenge (see 2504140039). Donovan spoke during a Free State Foundation webcast this week, hosted by former FCC Commissioner Mike O’Rielly.
A decision by the U.S. Supreme Court is expected in a matter of weeks in the Consumers' Research case challenging the USF contribution factor and the USF generally, even as SCOTUS wades through numerous emergency petitions from the Trump administration, industry experts said Wednesday during a Broadband Breakfast webinar. USF likely needs an overhaul, they added, but that could be difficult if the FCC loses at SCOTUS, which typically issues several high-profile decisions in June.