States, courts – not Congress or the FCC – could rule telecom policy in 2023

Congress and the Federal Communications Commission (FCC) will have plenty of telecommunications issues on their plate as the country heads into 2023. Tax breaks for grant funding; ReConnect reform; Pole attachment problems; and perhaps even net neutrality – again. But New Street Research’s Blair Levin said a handful of truly pressing policy issues appear poised to be decided by the states and courts. According to Levin, a recent ruling by the Supreme Court in the West Virginia v. EPA case opened the door for anyone to “question anything the FCC does and provides new grounds for challenging” rules they don’t like. With this in mind, Levin said there are two court cases he’s got his eye on going into 2023: one in the U.S. Court of Appeals for the 5th Circuit (Consumers’ Research v. FCC) weighing the constitutionality of the Universal Service Fund (USF) and another in New York looking at whether the state has the authority to require broadband providers to offer broadband plans at a certain price point. Levin said unlike other attempts to challenge the FCC’s authority, the 5th Circuit case is not frivolous as it could force the FCC and Congress to act to address the continued viability of the current USF system and weigh the related issue of what happens when money from the $14.2 billion Affordably Connectivity Program (ACP) runs out.