Responses to Universal Service Fund Decision

[this page will be updated]

After the Fifth Circuit ruled, 9-7, that the Universal Service Fund is unconstitutional as currently administered, we've seen the following responses.

“This decision is misguided and wrong," said Federal Communications Commission Chairwoman Jessica Rosenworcel. "It upends decades of bipartisan support for FCC programs that help communications reach the most rural and least-connected households in our country, as well as hospitals, schools, and libraries nationwide.  The opinion reflects a lack of understanding of the statutory scheme that helped create the world’s best and most far-reaching communications network.  We will pursue all available avenues for review.” 

"I’m gravely disappointed by today’s ruling in the 5th Circuit," said FCC Commissioner Geoffrey Starks. "The en banc decision overturns the original panel’s well-reasoned decision, and runs contrary to two Circuit courts—the 6th and 11th—that recently found the Universal Service Fund (USF) to be constitutional. This decision is a monumental blow in our long-running effort to close the digital divide, and will particularly harm Americans that rely on USF for connectivity including vulnerable households, those that live in rural areas, and our youngest learners. I am reviewing the decision and how the Agency can continue to fulfill one of the core mandates of the Communications Act: universal service."

Benton Senior Counselor Andrew Jay Schwartzman said, "Today’s majority opinion attempts to break new ground by ignoring Fifth Circuit and Supreme Court precedent. The majority’s hostility to the policies underlying the Universal Service Fund is palpable. That, plus the bipartisan group of seven dissenters, makes it almost certain that the Supreme Court will agree to hear the issue. And, given that two other Circuits have recently ruled the other way, I think there is a strong likelihood that the Supreme Court will uphold the constitutionality of the Universal Service Fund."

"We are deeply dismayed by the court’s decision today," said  Schools, Health & Libraries Broadband (SHLB) Coalition Executive Director John Windhausen. "The USF provides essential broadband services to anchor institutions throughout this country, and we will continue to support the FCC as it combats these claims. Unfortunately, the court uses the USF proceeding as a vehicle for expressing its own political philosophy rather than following the explicit intention of Congress in crafting section 254 of the Communications Act. As the dissent points out, Congress and the FCC provided an ‘intelligible principle’ supporting the USF program, consistent with prior Supreme Court precedent. We look forward to overturning this decision and will continue to work to support affordable broadband for schools, libraries, healthcare providers, and the American public."

John Bergmayer, Legal Director at Public Knowledge, said, "Following the end of the Affordable Connectivity Program, today’s Fifth Circuit ruling that the FCC’s long-standing mechanism for funding the Universal Service Program is unconstitutional eliminates the last remaining federal mechanism to make broadband affordable for all Americans. Happily, this decision will likely be reversed. Riddled with errors from its very first paragraph, the opinion contradicts Supreme Court precedent, and breaks with rulings from the D.C., Sixth, and Eleventh Circuits. This is in keeping with many recent Fifth Circuit rulings that disregard settled law and, where necessary, the facts, to achieve results desired by fringe, anti-government groups who want to use the courts to impose their unpopular agenda on the American people. The majority’s broad and novel holdings on delegation have implications going far beyond the FCC and Universal Service. As one of the two persuasive dissents states, the court’s opinion ‘offers no test for determining when something that is neither an unconstitutional delegation of legislative power from Congress to an agency nor an unconstitutional delegation of government power to a private entity becomes unconstitutional, leaving the political branches powerless to govern.’ Congress determined that Americans deserve access to high-quality, affordable communications services, and the USF has been administered for decades on a bipartisan basis to achieve this goal. Today, a panel of activists in robes has decided that they know better."

Gigi Sohn, Spokesperson for the Affordable Broadband Campaign, said, “Today’s decision by the Fifth Circuit Court regarding the constitutionality of the Universal Service Fund (USF) is outrageous. This decision by activist judges stands on dubious legal grounds but, more importantly and urgently, it will have catastrophic consequences for low-income Americans. This, coupled with the lapse in funding for the Affordable Connectivity Program, is a slap in the face to low-income families, rural America, schools and libraries that rely on USF-funded programs to get online. The digital divide in this country will grow from a valley to a gorge, leaving untold Americans excluded from modern life — from telemedicine, work opportunities, homework, online learning and community. It is a disgrace that this country seems incapable of providing affordable broadband to all. We look forward to the US Supreme Court overturning this decision and urge the Congressional USF Working Group to act quickly to solve this.”

"Today’s decision evidences a misunderstanding of how the Universal Service Fund actually works. It also reveals a fundamental disregard for individuals that rely on programs like Lifeline to stay connected to the world around them," said Ryan Johnston, Senior Policy Counsel for Federal Affairs at Next Century Cities. "Congress’ intent is clear: all people of the United States are to be connected without discrimination on the basis of race, color, religion, national origin, or sex. Now, the 5th Circuit has dealt a significant blow to the Commission’s ability to uphold that goal."

The Competitive Carriers Association, NTCA–The Rural Broadband Association, and USTelecom–The Broadband Association issued a joint statement: "The Universal Service Fund has been, and continues to be, a critical tool to narrow the digital divide and help address connectivity gaps. The court’s decision today deals a severe blow to these efforts and could put at risk the availability and affordability of essential communications services for millions of rural Americans, low-income consumers, and community anchor institutions. We steadfastly believe that the Universal Service Fund is constitutional and we will continue to fight for universal connectivity."