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.
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."