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).
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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.
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.
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 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.”
A 5th U.S. Circuit Court of Appeals ruling last week against the SEC could have implications for FCC enforcement actions and the powers of administrative law judges like the FCC’s ALJ Jane Halprin, but it is too early to be sure how the ruling against the SEC applies to other agencies, said academics and communications attorneys in interviews. Based on that Jarkesy v. SEC decision, U.S. Supreme Court rulings and a pair of cases currently before SCOTUS, the outlook for ALJs at federal agencies -- including the FCC -- “looks a little shaky,” said Jeffrey Lubbers, an administrative law professor at American University. “I’d be surprised if this decision is the final word,” said former FCC General Counsel Tom Johnson, now with Wiley.
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."