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.
USTelecom, NTCA and the Competitive Carriers Association defended a directive in Section 254 of the Telecom Act that the FCC preserve and advance universal service, in a pleading Friday in response to a challenge by Consumers’ Research to the broader USF program (see 2110050056). “Under the Supreme Court’s approach for reviewing nondelegation challenges, Section 254 falls well within constitutional bounds,” the groups told the 5th U.S. Circuit Court of Appeals: “Section 254 prescribes far more detailed directions than other statutes that have repeatedly been upheld by the Supreme Court over the past century. Even under a more searching standard -- which could be adopted only by the Supreme Court -- Section 254 still would pass constitutional muster.”
The Supreme Court appeared to raise questions about the future of the Chevron doctrine Wednesday, under which agencies like the FCC and FTC are afforded deference by the courts in their decisions as expert agencies. The unanimous court ruled in American Hospital Assn. v. Becerra that the Department of Health and Human Service’s decision to reduce yearly Medicare payments to hospitals as part of the 340B program was unlawful. The government raised Chevron deference, but the decision by Justice Brett Kavanaugh never addresses the doctrine. The case had been decided by the U.S. Court of Appeals for the D.C. Circuit.
House Communications Subcommittee members voiced strong support during a Tuesday hearing for the Extending America’s Spectrum Auction Leadership Act (HR-7783) and two NTIA-focused spectrum bills, echoing expected backing from Wiley’s Anna Gomez and CommScope Business Development and Spectrum Policy Director Mark Gibson (see 2205230061). Lawmakers broadly supported elements of the Safe Connections Act (HR-7132), but opinions on the Ensuring Phone and Internet Access for Supplemental Nutrition Assistance Program Recipients Act (HR-4275) divided along party lines.
The FCC repeated its request that the U.S. Court of Appeals for the 6th Circuit hold Consumers' Research's challenge to the Q4 USF contribution factor in abeyance, after the U.S. Court of Appeals for the 5th Circuit's decision to proceed with a similar challenge, said a letter Friday in case 21-3886 (see 2203020033). The agency said the parties can "suggest how the case in this court should proceed" after the 5th Circuit's ruling and the FCC's USF report. It also asked the court to reject Consumers' Research's request that the FCC respond to the group's agency comment within 30 days, saying Consumers' Research "effectively seek[s] a writ of mandamus" without attempting to "justify such extraordinary relief" or providing a basis to "override the FCC's broad discretion to order its proceedings."
Consumers' Research asked the 6th U.S. Circuit Court of Appeals to deny the FCC's motion to hold its challenge to the Q4 USF contribution factor in abeyance or order the FCC to respond to its agency comments within 30 days, said a letter Wednesday in case 21-3886 (see 2201140051). The 5th U.S. Circuit Court of Appeals denied a similar motion Wednesday from the FCC on Consumers' Research's challenge to the USF Q1 contribution factor in case 22-60008.
Commenters on the Universal Service Fund generally agreed its funding system is unsustainable and in need of changes but disagreed on the solution, in comments posted Friday in docket 21-476 (see 2112220051) as the FCC prepares its report to Congress on the future of USF.
The 6th U.S. Circuit Court of Appeals denied a Consumers' Research motion for an extension to file its initial brief in its challenge to the FCC Q4 USF contribution factor as moot, said a letter Friday in case 21-3886 (see 2201130030). Briefing was temporarily held in abeyance until the FCC motion to hold the case in abeyance is resolved, the letter said. An attorney for Consumers' Research didn't comment.
Consumers' Research sought a 14-day extension, until Feb. 9, to file its initial brief for its challenge to the FCC Q4 USF contribution factor, in a motion Thursday before the 6th U.S. Circuit Court of Appeals in case 21-3886. It said the motion was unopposed by the FCC and intervening groups. It "makes little sense" to "push forward on an extensive brief raising numerous very significant constitutional issues about a multi-billion-dollar government program when the case may be stayed anyway," Consumers' Research said. The FCC recently sought to have the case be held in abeyance until it completes its report to Congress on the future of USF (see 2201110075).
Hold Consumers' Research's challenge of USF's Q4 contribution factor in abeyance until the FCC issues its report to Congress on the future of USF, the agency asked the 6th U.S. Circuit Court of Appeals, per a filing Tuesday in case 21-3866 (see 2111180018). The report "should address petitioners’ arguments with respect to the lawfulness of the FCC’s rules and procedures for adopting the universal service contribution factor," the agency said: Consumers' Research opposed the motion and interveners supported it.