The Supreme Court is scheduled to consider four petitions for certiorari addressing the constitutionality of the Federal Communications Commission’s Universal Service Fund (USF) at its Friday, November 15 conference.  Grant of one or more of these petitions is highly likely, as there is a split among the lower courts and it involves the constitutionality of a statute of the United States.  The Court’s action could be announced as early as Friday afternoon or on Monday morning.  (While the Court sometimes “relists” cases for future conferences, that is unlikely here.)

Andrew Jay Schwartzman, senior counselor for the Benton Institute for Broadband & Society, will be available to discuss the case.

The cases before the Court arise in a somewhat atypical procedural posture. In June, the Court denied certiorari in cases challenging 6^th and 11^th Circuit decisions upholding the USF program, but those cases will be reconsidered on Friday because of the subsequent decision of the 5^th Circuit.  While a 5^th Circuit panel had upheld the USF, this summer, the full 5^th Circuit voted 9-7 to find the program to be unconstitutional.  The Court also has two certiorari petitions seeking review of the 5^th Circuit decision, one from the Solicitor General on behalf of the FCC and U.S., and one from a coalition of telecommunications trade associations and four public interest groups.  (Schwartzman represents three of the groups: Benton Institute for Broadband & Society, National Digital Inclusion Alliance, and Media Justice.)

The issue in the case is whether USF and the Universal Service Administrative Company (USAC), which the FCC created to administer the USF, violate the “non-delegation” and “private non-delegation” doctrines by improperly ceding legislative authority first to the FCC and then to USAC.

A more detailed discussion of the history of this litigation may be found in this SCOTUSblog overview.

USF, which uses fees paid by telephone users, funds four major telecommunications programs:

1. E-Rate, which provides discounted internet access for schools and libraries.
2. Lifeline, which provides subsidies for telephone and internet service to low-income censurers.
3. Rural Healthcare, which provides funding to eligible health care providers for telecommunications and broadband services necessary for the provision of health care.
4. High Cost, which helps pay for deployment and ongoing support for telecommunications infrastructure in rural areas.

The cases are:

• Consumers’ Research v. Federal Communications Commission, No. 23-456
• Consumers’ Research v. Federal Communications Commission, No. 23-743
• Federal Communications Commission v. Consumers’ Research, No. 24-354
• Schools, Health & Libraries Broadband Coalition, et al. v. Consumers’ Research, No. 24-422

Contact:
Andrew Jay Schwartzman
Benton Senior Counselor
andyschwartzman@gmail.com
202.241.2408

 

 

The Benton Institute for Broadband & Society is a non-profit organization dedicated to ensuring that all people in the U.S. have access to competitive, High-Performance Broadband regardless of where they live or who they are. We believe communication policy - rooted in the values of access, equity, and diversity - has the power to deliver new opportunities and strengthen communities.

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