DOJ and FCC Ask 5th Circuit to Terminate Review of USF Challenge
The FCC and DOJ on Thursday asked the 5th U.S. Circuit Court of Appeals not to require a briefing on a potential remaining issue after the U.S. Supreme Court last month rejected a Consumers’ Research challenge to the way the FCC manages the USF (see 2507020049). The problem for the FCC has been a footnote in the majority opinion, which noted that several provisions in Section 254 of the Communications Act weren't challenged and which expressed no opinion about whether those posed any additional problems for the program (see 2507150081).
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Consumers’ Research asked the 5th Circuit to look more closely at the issue. The SCOTUS decision didn’t “resolve every question before this Court,” the group said in a July 8 pleading. “In particular, the majority expressly declined to address whether” provisions in Section 254 “violate the intelligible-principle test, and the dissenting Justices stated this Court could address that issue on remand -- a point with which the majority opinion expressed no disagreement.”
“Supplemental briefing on that question would aid this Court, and Petitioners respectfully request that the en banc Court order simultaneous supplemental briefs not to exceed 3,000 words per side, due 30 days after this Court’s order granting leave,” Consumers’ Research said.
The U.S. government opposed that motion Thursday. “The argument on which petitioners seek supplemental briefing has been waived,” DOJ and the FCC said. “In their briefs to this Court, petitioners expressly and repeatedly emphasized that they were not raising any objection to the funding of any particular universal service program.” Consumers’ Research instead “elected to mount a comprehensive challenge to the FCC’s general authority to raise revenues under section 254, claiming that the statute improperly delegated taxing power to the Commission.”
That SCOTUS remanded the case to the 5th Circuit “for further proceedings” doesn’t support the petitioners’ request for supplemental briefing, the government said. “As this Court has previously recognized, sometimes the only task remaining for this Court on remand from the Supreme Court is to deny the petition for review and close the case,” the brief said. Now that SCOTUS “has rejected petitioners’ broad-based attack on the constitutionality of section 254, the only thing left for this Court to do on remand is to deny the petition for review and terminate the case.”