Consumers’ Research, the conservative group that is a self-described opponent of “woke” culture, told the U.S. Supreme Court that the way the FCC assesses payments for the USF is “a historic anomaly at odds with 600 years of Anglo-American practice.” SCOTUS will hear FCC v. Consumers' Research March 26, challenging the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating part of the USF program (see 2501090045), in part because the FCC delegated authority for overseeing the program to the Universal Service Administrative Co.

Three conservative groups on Tuesday urged the U.S. Supreme Court to use its upcoming decision in FCC v. Consumers' Research to provide clarity on when agencies can delegate authority to private companies. SCOTUS will consider the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating part of the USF program (see 2501090045), in part because the FCC delegated authority for overseeing the program to the Universal Service Administrative Co. (see 2412100060).

The U.S. Supreme Court on Monday scheduled oral argument for March 26 in the government’s challenge of the 5th U.S. Circuit Court of Appeals' 9-7 en banc decision last year that sided with Consumers' Research and found that the USF contribution factor is a "misbegotten tax.” SCOTUS agreed in November to hear what some see as the most consequential FCC case in years (see 2412100060). Members of Congress, former FCC commissioners, ISPs and public interest groups are among those urging SCOTUS to overturn the 5th Circuit decision.

If the U.S. Supreme Court uses the FCC USF case as a route for establishing a judicial test about the nondelegation of power, that test should consider the nature of the power being delegated, legal academics say. A Federalist Society panel discussion about the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating part of the USF program and subsequent SCOTUS appeal (see 2411220050) saw speakers discussing how courts have looked at Congress' delegation of its powers to other branches or agencies and the high court's available options.

USTelecom urged legislative action to shore up lawmakers’ mandate for the USF amid the “existential threat” posed by the 5th U.S. Circuit Court of Appeals’ 2024 en banc decision that the program’s contribution factor is unconstitutional (see 2407240043). The U.S. Supreme Court is reviewing the 5th Circuit’s ruling (see 2501170046). In an open letter Friday, USTelecom said Congress should “reaffirm” its bipartisan will to maintain USF “and reform how the program is funded.” It added, “Reform must begin by requiring Big Tech companies that benefit massively from universal connectivity to join in contributing to this vital national commitment.” Some lawmakers and other observers believe Senate Commerce Committee Chairman Ted Cruz, R-Texas, may move Congress’ USF revamp toward making the program subject to the federal appropriations process (see 2411270060). In addition, USTelecom said NTIA, under President Donald Trump, “should roll back rate regulation and other requirements” for the $42.5 billion BEAD program “that Congress never asked for, while retaining a significant role for fiber, the high-speed broadband gold standard.” Removing BEAD requirements Congress didn’t mandate in the 2021 Infrastructure Investment and Jobs Act “would shed the unwanted baggage and accelerate what matters most -- getting the work of connecting everyone done,” USTelecom said. “Restoring a tight focus on the mission -- broadband deployment – can dramatically accelerate efforts to fill gaps in high-speed service, helping unlock economic opportunities and access to innovation throughout” the country. USTelecom also urged lawmakers to “move again” on the American Broadband Deployment Act permitting package that the House Commerce Committee approved in 2023 (see 2305240069). The measure, which groups together more than 20 GOP-led connectivity permitting bills, drew unanimous opposition from House Commerce Democrats, and local government groups continued lobbying against it last year (see 2409180052). “Congress should green light speeding up approvals for more broadband projects on federal lands,” USTelecom said: “With a third of our nation’s land under federal control, federal permitting reform would provide an immediate adrenaline shot to the capacity, sophistication, reach and security of our nation’s information infrastructure.”

Eight former FCC commissioners filed an amicus brief at the U.S. Supreme Court last week urging the justices to overturn the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating part of the USF program. Meanwhile, likely Senate Communications Subcommittee leaders Deb Fischer, R-Neb., and Ben Ray Lujan, D-N.M., led an amicus brief with 27 other House and Senate lawmakers defending the funding mechanism.

WTA and a group of healthcare entities filed amicus briefs at the U.S. Supreme Court urging the court to overturn the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating part of the USF program. The briefs supported arguments of the FCC (see 2501090045), the telecom industry and public interest groups (see 2501100057). Consumer group Public Citizen warned of negative effects beyond the FCC if SCOTUS upholds the 5th Circuit decision. Consumers' Research challenged the contribution factor in the 5th Circuit and other courts.

The telecom industry and public interest groups supported government arguments asking the U.S. Supreme Court to overturn the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating part of the USF program (see 2501090045). In a decision that sent shock waves through the telecom industry, judges on the conservative circuit agreed with Consumers' Research that USF violates the Constitution by improperly delegating Congress’ power to the FCC and the agency's power to a private company, the Universal Service Administrative Co. (see 2412100060).

The FCC in a U.S. Supreme Court filing defended the USF in general, and the contribution factor more specifically, as the justices prepared to hear what could be the most consequential FCC case in years (see 2412100060). SCOTUS agreed in November to review the 5th U.S. Circuit Court of Appeals' 9-7 en banc decision, which sided with Consumers' Research and found that the USF contribution factor is a "misbegotten tax.”

Attorneys for Maurine and Matthew Molak asked the 5th U.S. Circuit Court of Appeals to restart their challenge of a July order that lets schools and libraries use E-rate support for off-premises Wi-Fi hot spots and wireless internet services (see 2409230024). In September, the court dismissed the case, saying it lacked jurisdiction (see 2409260046). Petitioners “wish to inform the panel that, after nearly six months, they are still waiting on the FCC to rule on their July 2024 request that the agency reconsider its … ‘Hotspots Order,’ which subsidizes Wi-Fi hotspots anywhere students go,” said a Monday filing at the court: “It seems the FCC is content to ignore the petition for reconsideration, safe in the belief that as long as the petition remains pending the agency can both implement its unlawful policy and avoid judicial review.” The filing in docket 23-60641 also notified the court of the 6th Circuit’s recent decision vacating the FCC’s net neutrality order (see 2501020047) as it ponders a second case on school bus Wi-Fi. Judges heard oral argument in that case in November (see 2411040061). That decision “slams the door on the FCC’s contention in this case that the Declaratory Ruling expanding E-Rate subsidies for Wi-Fi on school buses is authorized” by the Communication Act section on the USF, the filing said. The Molaks brought both cases because they oppose unsupervised social media access on school buses. The Molaks' son David died by suicide after he was bullied online as a 16-year-old.