Amicus Briefs by WTA and Others Defend FCC Oversight of USF
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.
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WTA criticized the 5th Circuit’s logic in finding that the USF contribution factor is a "misbegotten tax.” In approving Section 254 of the Communications Act, Congress “merely codified the long-standing system of telecommunications services providers contributing to the funding of universal service support, and expanded that support to ensure that affordable service was available to all schools, libraries and health-care providers throughout our vast Nation,” WTA said: “In doing so, it acted well within its constitutional authority.”
WTA noted the history of how the USF was launched. With the start of competition for long-distance service in the mid-1970s and the breakup of the Bell System in the early 1980s, “the previous approach of using AT&T’s interstate long-distance revenues to provide the subsidies to keep local service rates affordable was unsustainable,” the group asserted. Prior to approval of the Telecommunications Act in 1996, “universal service was a long-standing industry and regulator-driven program funded by the industry, which Congress codified and expanded in Section 254 of the 1996 Act.” Congress “retains (and exercises) authority over FCC through the appropriations process when it annually sets FCC’s budget,” WTA said.
The Universal Service Administrative Co. “performs the ministerial acts of collecting information from carriers regarding their expected telecommunications-services revenues for the upcoming period, determining the expected payment amounts based on the authorized expenditures, and then advising the FCC on the calculation of the contribution factor.”
Healthcare Concerns
“The rate for universal service is not unconstitutional. Section 254 of the Communications Act provides intelligible principles, and the FCC maintains control over USAC’s assistance in administering the rate for universal service,” the healthcare groups said: Section 254 “should not be construed in a vacuum without any consideration of its place in the overall statutory scheme, as the Fifth Circuit attempts.” The brief noted the importance of the Rural Healthcare Program, which is one part of USF.
“The ability of hospitals and their medical professionals to continue to provide such connected health services to rural areas across the country would be seriously impaired if the FCC is unable to continue to operate” the program, the brief said. New England Telehealth Consortium, ADS Advanced Data Services, the Community Hospital Corporation, HealthConnect Networks, the North Carolina Telehealth Network Association, the Colorado Hospital Association and the Southern Ohio Healthcare Network signed the brief.
Congress didn’t “delegate legislative power” to the FCC to oversee the USF, Public Citizen said. “Accepting respondents’ contrary argument could severely undermine this Court’s longstanding recognition that Congress enjoys considerable latitude to empower executive agencies to determine how best to implement Congress’s directives,” the group said: The decision “departs from this Court’s precedents by imposing an unduly stringent standard for the level of specificity with which Congress must spell out the details of how the executive is to fulfill Congress’s statutory mandates.”
Other Briefs
The FCC also got support in amicus briefs filed by the National Foreign Trade Council (NFTC) and the state of Alaska.
The Communications Act “contains significant boundaries that assure the agency will comply with Congress’s directions,” NFTC said: If the objections raised by the 5th Circuit and Consumers’ Research are “sustained, there would be nothing that Congress could do, short of directly managing the Universal Service Program itself, that would make the statute constitutional.”
The USF “is necessary to providing wireless communication and internet in ‘rural, insular, and high-cost areas’ of Alaska,” the state said. The brief focuses on the effects on Alaskans if the 5th Circuit decision isn’t overturned. The Rural Health Care program “funds internet connectivity for over 220 rural healthcare providers in Alaska,” the brief said: The High-Cost fund “makes affordable phone, wireless, and broadband internet service for rural Alaskan consumers. The E-Rate program provides grants for internet for over 500 schools and libraries in Alaska. And the Lifeline program provides basic wireless plans to about 19,000 very low-income Alaskans.”