Consumers’ Research and its allies renewed their attack on the legality of the USF contribution factor, filing a petition with the 5th U.S. Circuit Court of Appeals last week challenging it for Q4. Last month, the group withdrew an earlier challenge at the 5th Circuit, but industry observers predicted at the time that it would file a new one (see 2509170072). In August, Consumers’ Research asked the FCC to zero out the factor for Q4 (see 2506130016).
Consumers’ Research and other challengers of the USF contribution factor in the 5th U.S. Circuit Court of Appeals agreed to end their current challenge there. The government and challengers said in a filing with the court that they “hereby stipulate to the dismissal of the petitions in the above proceedings, with each side to bear its own costs and fees.”
Consumers’ Research and its allies objected Friday to the proposed USF contribution factor for Q4, citing unanswered questions from the group’s unsuccessful challenge in the U.S. Supreme Court in late June. The factor is projected to increase from 36% in Q3 to 39.3% in Q4, based on the latest projections from the Universal Service Administrative Co. (see 2508040049).
Consumers’ Research said the 5th U.S. Circuit Court of Appeals should look more closely at an issue raised in the dissent and a footnote in the majority opinion of the Supreme Court’s decision in June upholding the legality of the USF. The FCC and DOJ last week asked the 5th Circuit not to require further briefing but close the case (see 2507170063).
The FCC and DOJ on Thursday asked the 5th U.S. Circuit Court of Appeals not to require a briefing on a potential remaining issue after the U.S. Supreme Court last month rejected a Consumers’ Research challenge to the way the FCC manages the USF (see 2507020049). The problem for the FCC has been a footnote in the majority opinion, which noted that several provisions in Section 254 of the Communications Act weren't challenged and which expressed no opinion about whether those posed any additional problems for the program (see 2507150081).
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.