Consumers' Research petitioned the 5th U.S. Circuit Court of Appeals to review and vacate the FCC's approval of the Q3 2023 USF contribution factor, per a filing Friday in case 23-60359. The group has a pending en banc rehearing of its challenge of the FCC's Q1 2022 contribution factor (see 2306300086).

The 5th U.S. Circuit Court of Appeals approved a request Thursday for an en banc rehearing of Consumers' Research's challenge of the FCC's method for funding the USF. In March, a three-judge panel ruled unanimously against Consumers' Research, saying the FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., and Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF (see 2303240049).

Broadcasters, satellite companies and trade groups disagreed how often the FCC should reevaluate its regulatory fee structure and whether the system needs new payers, in reply comments filed by Thursday’s deadline. The agency should “continue to conduct such reviews of the work of its indirect FTEs [full-time equivalents] annually, as well as to identify additional ways that the Commission’s regulatory fee process can be made fairer and remain current,” said a joint reply from state broadcast associations in docket 23-159. “A complex accounting of indirect FTEs is not fair, administrable, or sustainable” and doing such an analysis annually would create administrative burdens and raise fairness concerns, said CTIA.

E-rate participants highlighted the need for additional support for schools and libraries to provide their communities access to remote learning and work opportunities as the FCC Emergency Connectivity Fund nears its end during a Schools, Health and Libraries Broadband Coalition webinar Wednesday. Panelists cited lessons learned from ECF and debated whether the program should be incorporated into E-rate or established as an independently permanent program.

A panel of judges on the 11th Circuit U.S. Court of Appeals pressed Consumers' Research Wednesday on its argument that the FCC violated the nondelegation doctrine by approving calculations provided by the Universal Service Administration Co. to determine quarterly USF contribution factors. Judge Charles Wilson during oral argument in case 22-13315 asked about whether any issues with the intelligible principles are articulated in Communications Act Section 254. Consumers’ Research attorney Trent McCotter argued “the FCC itself has stated that they are aspirational only,” to which Wilson noted the U.S. Supreme Court called it a "pretty lenient" standard. The FCC, not USAC, acts ministerially in setting quarterly contribution factors, McCotter said, saying the USF statute “contains no such express limitations or rates or formulas.” Judge Kevin Newsom asked what sort of agency participation should be permissible, noting the leniency of the statute at issue. McCotter cited a dissent from Justice Neil Gorsuch that argued an agency “could undertake a particular fact finding to fill in the gaps” so Congress could direct the FCC to calculate the difference between particular prices. “So that's the best authority that you can cite in support of your position as a dissent?” Newsom asked, noting he wasn't aware of any authority after the 1930s being struck down for violating the nondelegation doctrine. Judge Wilson asked "so that the record does reflect that in the past" whether the FCC rejected or modified USAC calculations. FCC attorney Adam Crews noted several instances of the agency doing so and said the commission is "not often intervening" or changing calculations it receives "because what USAC is doing is so routine."

Lumen wants to shed carrier of last resort (COLR) duties in Utah, in whole or at least in part, it said in a Wednesday petition at the Utah Public Service Commission (docket 23-049-01). Lumen isn't seeking relief from discontinuance rules to end services for existing customers, it said. "Rather, on a forward-looking basis, this petition seeks relief from the obligation to provide voice service to every new customer location regardless of the cost of service." Utah doesn't provide high-cost support to Lumen and the federal government stopped giving it federal USF support last year, the carrier noted. "With no supportive funding for the COLR obligations in CenturyLink’s service territory, either from the federal government or the State of Utah, the company should not be obligated to be a COLR.” If the PSC wants to keep COLR obligations in certain locations, it should let Lumen collect state USF support for those places, it said. Effective competition exists throughout the company's territory, claimed Lumen: Competitors can “provide functionally equivalent or suitable services.”

An upcoming Supreme Court decision in Biden v. Nebraska, which concerns the White House’s student loan forgiveness program, could clarify to what degree the court’s major questions doctrine (see 2302080064) could be used to challenge the actions of federal agencies such as the FCC, said HWG's Chris Wright and FCC Deputy General Counsel Jacob Lewis Thursday on a virtual FCBA panel.

House Communications Subcommittee members made the future of the FCC’s affordable connectivity program a major focus of its Wednesday commission oversight hearing, as expected (see 2306200075), but the panel didn’t result in a clear sense of whether Commerce Committee GOP leaders will back additional funding for the initiative. Subpanel Chairman Bob Latta, R-Ohio, and others haven’t committed themselves as either for or against further ACP funding (see 2305100073). Democrats strongly defended the program and urged its extension.

Texas will be the 11th state with a consumer privacy law. Over the weekend, Gov. Greg Abbott (R) signed HB-4, which largely follows in the mold of Virginia and Connecticut laws (see 2305300057). Also, Abbott signed a data broker registration bill (SB-2105), a broadband mapping bill (SB-2119) and a USF bill (SB-1710) to establish a competition test allowing the Texas Public Utility Commission to decide whether previously rural areas should continue receiving support. Abbott vetoed SB-2399, which would have clarified that the PUC should continue to grant operating authority certificates to VoIP providers. “Texans are faced with perpetually increasing threats to their family's privacy with unscrupulous actors collecting their personal data and activities," the privacy bill’s sponsor, Rep. Giovanni Capriglione (R), said Monday: "Texans deserve to know what information is being collected and how to delete that information if they so choose.” Florida was the 10th state with a privacy law (see 2306060030).

The Regulatory Commission of Alaska seeks comments by July 19 on making Alaska USF emergency regulations permanent, said an RCA notice released Monday. The commission filed the emergency regs with the lieutenant governor’s office Thursday (see 2306160041). The emergency rules take effect July 1 and expire Oct. 28. Making them permanent would extend the AUSF sunset through June 30, 2026.