The 5th U.S. Circuit Court of Appeals denied Consumers' Research's challenge of the FCC's method for funding the USF under the nondelegation doctrine, in a ruling Friday (see 2212060070). The FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., the court said, noting Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF.
The 5th U.S. Circuit Court of Appeals denied Consumers' Research's challenge of the FCC's method for funding the USF under the nondelegation doctrine, in a ruling Friday (see 2212060070). The FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., the court said, noting Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF.
The 5th U.S. Circuit Court of Appeals denied Consumers' Research's challenge of the FCC's method for funding the Universal Service Fund under the nondelegation doctrine, in a ruling Friday. The FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., the court said, adding that Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF. “We’ll let the unanimous decision speak for itself," emailed an FCC spokesperson. Consumers' Research declined to comment.
A three-judge panel on the 6th U.S. Circuit Court of Appeals questioned the timing of Consumers' Research's challenge of the USF 2021 Q4 contribution factor and how the nondelegation doctrine applied to the FCC's determination of the quarterly factor Thursday. Judges heard oral argument Friday on the challenge (see 2303060069).
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The USF contribution factor has “gone up really through the roof” and “led to a pretty vibrant debate right now about what the future of the universal service is going to be funded going forward,” said Keller and Heckman partner Casey Lide during a firm webinar Thursday. The telecom lawyer noted some groups sought direct congressional appropriations to fund USF, while others urged the FCC to include broadband internet access service revenue in the contribution base. Consumers’ Research’s challenge of the USF contribution factor in the 5th U.S. Circuit Court of Appeals based on the nondelegation doctrine could “force the hand on this kind of reform discussion,” he said (see 2301180054). If the court finds in favor of the petitioners, “it's undoubtedly going to go before the Supreme Court,” Lide said: "This Supreme Court could well uphold that [and] if that happens, then you're in a scenario where the universal service program is effectively gutted by judicial process.”
The FCC provided "no evidence" that it "actually reviewed and accepted" the Universal Service Administrative Co.'s figures for the Universal Service Fund 2021 Q4 contribution factor, Consumers' Research told the 6th U.S. Circuit Court of Appeals. The commission "couldn't even be bothered to issue a separate approval document," the group said in a letter posted Monday in docket 21-3886. The group said such "rubber stamping" violates the private nondelegation doctrine, citing the court's recent ruling in Oklahoma v. United States regarding the FTC' and the Horseracing Authority. The FCC disagreed in a letter posted Monday, saying USAC is "subordinate to a federal agency" and the commission "exercises extensive oversight." USAC "has no rulemaking or policy-making authority," the FCC said.
Challenges to the FCC’s USF program filed in three federal circuits by Consumers Research raise larger questions about the nondelegation doctrine and how the FCC interprets Section 254 of the Communications Act, lawyers said during an FCBA hybrid event Wednesday. The case could be headed to the Supreme Court, they said.
A coalition of industry groups and consumer advocacy organizations filed separate briefs Thursday in support of the FCC in the Consumers’ Research case challenging the USF contribution factor in the 11th U.S. Circuit Court of Appeals (docket 22-13315). USTelecom, NTCA, and the Competitive Carriers Association requested that the court hear oral argument. The groups said Consumers' Research "exaggerate[s] every aspect of this case," including the Universal Service Administrative Co.'s "role in determining quarterly contribution factors." The Schools, Health & Libraries Broadband Coalition, Benton Institute for Broadband & Society, National Digital Inclusion Alliance, and MediaJustice also filed a brief in support of the FCC. "Petitioners cannot circumvent their timeliness problem through a manufactured challenge to this ministerial public notice," the groups said, claiming the challenge is instead an "untimely review of the constitutionality of the entire Universal Service Fund."
The 6th U.S. Circuit Court of Appeals scheduled March 17 oral argument in Consumers’ Research’s legal challenge of the FCC’s Universal Service Fund’s Q4 2021 contribution factor, said a notice Tuesday (docket 21-3886). The time allotted for oral argument is 15 minutes per side, said the notice. Consumers’ Research’s various cases, including another filed last month in the 6th Circuit (see 2212280038), argue the USF contribution factor is an unconstitutional tax because it's imposed by the FCC rather than by Congress, and that the FCC has violated the Administrative Procedure Act.