Consumers’ Research Presses 5th Circuit to Require Further Briefing in USF Case
Consumers’ Research said the 5th U.S. Circuit Court of Appeals should look more closely at an issue raised in the dissent and a footnote in the majority opinion of the Supreme Court’s decision in June upholding the legality of the USF. The FCC and DOJ last week asked the 5th Circuit not to require further briefing but close the case (see 2507170063).
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In a 9-7 en banc decision last year, which sent shock waves throughout the telecom sector, the conservative circuit sided with Consumers' Research and found that the USF contribution factor was a "misbegotten tax.” Earlier, a three-judge panel had rejected the group’s arguments.
The footnote in SCOTUS' majority opinion observed that several provisions in Section 254 of the Communications Act weren't challenged by Consumers’ Research and expressed no opinion about whether those posed any additional problems for the USF program's legality (see 2507150081).
“Despite the government’s views … this issue does remain for remand,” said the brief filed Sunday. The government also doesn’t explain “what harm could result from allowing supplemental briefing,” the group said in docket 22-60008. “The en banc Court should grant Petitioners’ motion.” Consumers’ Research said the issue was discussed in earlier briefs in the case, “albeit not in extensive detail.”
“After nine Justices went out of their way to flag these provisions as worthy of separate consideration, they clearly warrant more extensive treatment, which is why supplemental briefing is appropriate,” the filing said. “Because this case originated via a direct-to-circuit-court petition, this Court -- rather than a district court -- is the proper venue for such briefing.”
Consumers’ Research told the court another challenge is likely. “Even if the Court has a doubt about preservation (and it shouldn’t), there is an easy solution: order supplemental briefing, and by the time it is finished and this Court considers it, there will be a new related case before this Court that undoubtedly presents this issue and, if necessary, could be consolidated with this case.”