Lawyers Defending FCC Expect Win at SCOTUS on USF Challenge
Lawyers for the Schools, Health & Libraries Broadband Coalition and the Benton Institute for Broadband & Society said Wednesday that groups defending the USF had a good day last week, as the U.S. Supreme Court heard oral argument in the Consumers' Research case (see 2503260061). They spoke during a SHLB webinar.
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Sarah Harris, acting U.S. solicitor general, and Paul Clement of Clement & Murphy, who represented industry, “did a really fantastic job of defending universal service,” said HWG’s Jason Neal, who represents SHLB. The lawyers were able to explain how the fund works and how the Telecom Act is supposed to work, he said. They highlighted the importance of the USF for rural America and community anchor institutions, he said.
“It was a good day for our side,” Neal said. But he cautioned that how judges will rule is never predictable. The argument was also “very long,” he said. As an appellate lawyer, “you come in with three or four key points you really want to get across, but ultimately your job is to listen to the questions that you get [and] try to understand what’s behind the questions.”
There were questions from all nine justices, Neal said, and they were all ready to delve into the details. “They understood that there’s a lot of history here, a lot of work that has happened at the FCC” on the USF. It probably helped that the justices heard arguments on another USF case, Wisconsin Bell v. U.S., in November (see 2411040029), he said.
Neal said Clement did an especially good job of addressing the concerns of the three justices considered to be in the middle of the conservative court: Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. Clement “was hired for a reason,” Neal said. “The justices respect him” and understand that “he gets … where they’re coming from.”
There’s “a clear consensus” that “this went very well, and we can be fairly confident and expect a favorable outcome and not an outright disaster,” said Andrew Schwartzman, the Benton Institute's senior counselor. But he admitted he has been wrong about the court before.
Several outcomes are possible, Schwartzman said, since it’s clear that some members of the court want to “revisit” the nondelegation doctrine. “Probably a majority of the court agreed that this was the wrong case to do some major surgery” on the doctrine, “which is why we’re probably going to come out OK.”
Schwartzman said he wouldn’t be surprised if SCOTUS issued a “very short” opinion on the facts of the case, with numerous concurring opinions. “There are some very unusual possible outcomes.” This was “a very good example of what a good Supreme Court argument could be like,” he said: “You understood where the justices were coming from. Their questions were very clear.”