Despite SCOTUS Loss, Consumers' Research Asks FCC to Delete USF Contribution Factor
Consumers’ Research and its allies objected Friday to the proposed USF contribution factor for Q4, citing unanswered questions from the group’s unsuccessful challenge in the U.S. Supreme Court in late June. The factor is projected to increase from 36% in Q3 to 39.3% in Q4, based on the latest projections from the Universal Service Administrative Co. (see 2508040049).
Sign up for a free preview to unlock the rest of this article
Communications Daily is required reading for senior executives at top telecom corporations, law firms, lobbying organizations, associations and government agencies (including the FCC). Join them today!
The Consumers’ Research filing pointed to a footnote in SCOTUS' majority opinion, which observed that several provisions in Section 254 of the Communications Act weren't challenged and expressed no opinion about whether those posed additional problems for the USF program's legality (see 2507150081).
The SCOTUS majority “expressly declined to rule” on whether the Communications Act provisions “are unconstitutional under the nondelegation doctrine,” said the filing in docket 96-45. “The dissenting Justices explained that those provisions are unconstitutional because they do not impose even qualitative restrictions on the Commission’s ability to raise money for covered programs.”
SCOTUS found that the involvement of USAC “in determining the Contribution Factor did not violate Article I private nondelegation principles, but the Court did not address” a separate argument “that USAC’s involvement in collecting and spending money on the back end amounts to an unconstitutional delegation of Article II executive powers,” the filing said. “It does, and that warrants setting the Contribution Factor at 0.000.”
Consumers’ Research also argued that the FCC “lacks statutory authority to appoint USAC as the permanent administrator of the USF, which means USAC cannot collect or spend USF moneys for the challenged quarter”; that USAC “violates the Government Corporation Control Act, which bars agencies from creating new corporate agents without express authorization from Congress”; and that USAC’s and private carriers’ “self-interest violates due process.”
Consumers’ Research has also asked the 5th U.S. Circuit Court of Appeals, which found the contribution factor to be unconstitutional in an en banc decision, to hear a challenge based on the footnote in the SCOTUS decision (see 2507210055).
Among those endorsing the latest filing was Edward Blum, president of Students for Fair Admissions, which won a SCOTUS case that effectively ended race-based affirmative action policies in American college admissions, as well as respondents listed on other Consumers’ Research pleadings.