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.
The 5th Circuit U.S. Court of Appeals "erroneously upheld the USF revenue-raising mechanism" in its ruling against Consumers' Research petition on the FCC's Q1 2022 contribution factor, the group told the 11th Circuit (see 2303240049). The group challenged the Q4 2022 factor in the 11th Circuit. The court "never addressed" the group's argument about the nondelegation doctrine's intelligible principle "in the context of revenue-raising," Consumers' Research said in a letter posted Monday (docket 22-13315). The group also said the court "found no private nondelegation violation despite the FCC never bothering to issue a separate approval of [the Universal Service Administrative Co.'s] quarterly proposal and having only 'a small window' for review."
The 5th Circuit U.S. Court of Appeals "erroneously upheld the USF revenue-raising mechanism" in its ruling against Consumers' Research petition on the FCC's Q1 2022 contribution factor, the group told the 11th Circuit (see 2303240049). The group challenged the Q4 2022 factor in the 11th Circuit. The court "never addressed" the group's argument about the nondelegation doctrine's intelligible principle "in the context of revenue-raising," Consumers' Research said in a letter posted Monday (docket 22-13315). The group also said the court "found no private nondelegation violation despite the FCC never bothering to issue a separate approval of [the Universal Service Administrative Co.'s] quarterly proposal and having only 'a small window' for review."
The 5th U.S. Circuit Court of Appeals denied Consumers' Research's challenge of the FCC's method for funding the USF under the nondelegation doctrine, in a ruling Friday (see 2212060070). The FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., the court said, noting Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF.
The 5th U.S. Circuit Court of Appeals denied Consumers' Research's challenge of the FCC's method for funding the USF under the nondelegation doctrine, in a ruling Friday (see 2212060070). The FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., the court said, noting Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF.
The 5th U.S. Circuit Court of Appeals denied Consumers' Research's challenge of the FCC's method for funding the Universal Service Fund under the nondelegation doctrine, in a ruling Friday. The FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., the court said, adding that Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF. “We’ll let the unanimous decision speak for itself," emailed an FCC spokesperson. Consumers' Research declined to comment.
The administrative law judge process at the FCC is “completely broken” and “something you would find in a banana republic,” not the U.S., former FCC Commissioner Mike O’Rielly said during a Georgetown Center for Business and Public Policy webinar Wednesday. O’Rielly noted review by an ALJ was recently “activated” as part of the review of the Standard/Tegna deal (see 2303100082.)
The USF contribution factor has “gone up really through the roof” and “led to a pretty vibrant debate right now about what the future of the universal service is going to be funded going forward,” said Keller and Heckman partner Casey Lide during a firm webinar Thursday. The telecom lawyer noted some groups sought direct congressional appropriations to fund USF, while others urged the FCC to include broadband internet access service revenue in the contribution base. Consumers’ Research’s challenge of the USF contribution factor in the 5th U.S. Circuit Court of Appeals based on the nondelegation doctrine could “force the hand on this kind of reform discussion,” he said (see 2301180054). If the court finds in favor of the petitioners, “it's undoubtedly going to go before the Supreme Court,” Lide said: "This Supreme Court could well uphold that [and] if that happens, then you're in a scenario where the universal service program is effectively gutted by judicial process.”
Challenges to the FCC’s USF program filed in three federal circuits by Consumers Research raise larger questions about the nondelegation doctrine and how the FCC interprets Section 254 of the Communications Act, lawyers said during an FCBA hybrid event Wednesday. The case could be headed to the Supreme Court, they said.
Consumers’ Research filed another legal challenge to the FCC’s Universal Service Fund, this time against the Q1 2023 contribution factor, in the 6th U.S. Circuit Court of Appeals. The group has another challenge in the 6th Circuit against the Q4 2021 contribution factor, plus a case in the 5th Circuit against the Q1 2022 factor, and a challenge in the 11th against the Q4 2022 factor. Oral argument was held in the 5th Circuit case earlier this month (see 2212060070), and the FCC filed a response brief in the 11th Circuit last week (see 2212230007). The latest filing takes a similar tack to Consumers’ Research’s other cases, arguing that the USF contribution factor is an unconstitutional tax because it's imposed by the FCC rather than Congress, and that the FCC has violated the Administrative Procedure Act. The group is likely challenging the contribution factor in the same circuit as an ongoing challenge to provide a backstop if the other 6th Circuit case is dismissed or rejected for narrow procedural reasons, said Benton Institute for Broadband & Society Senior Counselor Andrew Schwartzman, who has filed in support of the FCC in other Consumers’ Research cases. Consumers’ Research didn’t comment. The new case likely won’t be briefed or move forward while the other 6th Circuit one is ongoing, Schwartzman said.