Consumers' Research's petition for review of the FCC's Q4 2021 USF contribution factor is untimely and its claims "lack merit," the commission told the 6th U.S. Circuit Court of Appeals in a brief posted Tuesday in case 21-3886. The commission's authority to delegate the Universal Service Administrative Co. with calculating the quarterly factor is "clearly constitutional" because USAC is "subordinate to the commission and assists only in performing the accounting, billing, disbursement, and related functions necessary to operate the program," it said. The FCC asked the court to "not reward petitioners’ disregard for Congress’s comprehensive framework for judicial review of FCC orders by entertaining this petition on the merits." A coalition of industry groups filed a joint brief in support of the FCC and asked the court to reject Consumers' Research's claim that the contributions are taxes rather than fees. Petitioners "exaggerate every aspect of this case" and USAC’s role in determining the quarterly factors, said USTelecom, NTCA, and the Competitive Carriers Association in a joint brief: "The FCC’s regulations demonstrate that USAC exercises no lawmaking authority." The Schools, Health, & Libraries Broadband Coalition, Benton Institute for Broadband & Society, National Digital Inclusion Alliance and Media Justice also asked the court to reject Consumers' Research's challenge, said the intervenors. "Petitioners cannot circumvent their timeliness problem through a manufactured challenge to this ministerial public notice," the groups said, citing the FCC's quarterly notice announcing each factor. Consumers' Research is seeking "untimely review of the constitutionality of the entire Universal Service Fund," the groups said, echoing arguments made by the industry coalition. The 5th Circuit held oral argument earlier this month on the group's challenge of the Q1 2022 contribution factor (see 2212060070).
Here are Communications Litigation Today's top stories from last week, in case you missed them. Each can be found by searching on its title or by clicking on the hyperlinked reference number.
A three-judge panel on the 5th U.S. Circuit Court of Appeals in New Orleans questioned the procedure of Consumers’ Research’s challenge of the FCC’s method for funding the Universal Service Fund under the nondelegation doctrine, during oral argument Monday. Judges also pressed the FCC on whether Congress should be tasked with setting specific funding limitations and how the FCC reviews the quarterly contribution factor calculations made by the Universal Service Administrative Co.
Here are Communications Litigation Today's top stories from last week, in case you missed them. Each can be found by searching on its title or by clicking on the hyperlinked reference number.
Consumers’ Research's challenges to several of the FCC’s Universal Service Fund contribution factors may be an attempt to force a decision by the Supreme Court on the nondelegation doctrine, said academics and attorneys in interviews. Some said the group brought the exact same argument in multiple courts of appeals to forum shop and engineer a circuit split.
The FCC's method of funding the Universal Service Fund "violates the original understanding of the nondelegation doctrine," Consumers' Research told the 11th Circuit U.S. Court of Appeals in a brief posted Tuesday in case 22-13315. The group challenged the commission's USF 2022 Q4 contribution factor in October (see 2210070072). "From start to finish, every aspect of the Universal Service Fund is designed to be as obscure, unresponsive, and opaque as possible," the group said, adding the FCC's delegation of administering USF to the Universal Service Administrative Co. "severely damages separation of power." Consumers' Research argued USF programs should be funded through Congressional appropriations. "Deciding how much money to raise is quintessentially a legislative policy choice," it said, and the FCC "unconstitutionally re-delegated its authority over the Universal Service Fund to USAC."
A Consumers' Research brief is due Dec. 27 at the 11th Circuit U.S. Court of Appeals in its Oct. 6 petition for review of the FCC's USF 2022 Q4 contribution factor on grounds that it's illegal and should be rejected, said a memorandum Thursday (docket 22-13315). The petition argued that the contribution factor exceeds the commission's statutory authority under the delegation doctrine and is considered a tax. Consumers' Research filed multiple objections with the FCC on its proposed quarterly contribution factors and previously filed petitions for review before the 5th and 6th U.S. Circuit courts on behalf of itself and several individuals.
The electoral battle for control of Congress remained unresolved Thursday, but former FCC officials agree with other communications sector observers (see 2210310073) that Chairwoman Jessica Rosenworcel is likely to face less critical oversight if the GOP wins either chamber than would otherwise be expected because the current 2-2 split commission has spawned relatively little controversy. NTIA could face more of the heat, experts told us. Tech policy stakeholders, meanwhile, expect a shift in the direction on Big Tech-focused legislation under GOP majorities.
Communications sector officials and lobbyists believe the outcome of the Tuesday midterm election could affect a range of telecom policy priorities, including whether the Senate confirms FCC nominee Gigi Sohn this year, or any other commission Democrats, during the remainder of President Joe Biden’s term. Election results may affect future federal broadband funding initiatives and the direction of a proposed spectrum pipeline in the years ahead, observers told us. Election prognosticators see only a handful of incumbents on the Senate and House Commerce and Judiciary committees facing tight reelection battles despite volatile polling results in recent weeks.
The FCC’s respondent brief in Consumers’ Research’s 6th U.S. Circuit Court of Appeals challenge of the USF rules (see 2110050056) is due Dec. 5, said an order Friday in docket 21-3886. An optional reply from Consumers’ Research is due 21 days later, said the order. Consumer’s Research also has a similar ongoing case in the 5th Circuit.