Two law professors told the U.S. Supreme Court on Friday it should reverse the 5th U.S. Circuit Court of Appeals' 9-7 en banc decision, which found the USF contribution factor is a "misbegotten tax.” SCOTUS has agreed to hear the case, FCC v. Consumers’ Research, which potentially has broad implications, experts say (see 2412100060). Look no further than a 1938 brief by then-Solicitor General Robert Jackson, urged Gerard Magliocca, professor at the Indiana University Law School, and John Barrett, professor of law at St. John’s University, in an amicus brief Friday. They wrote that Jackson, later appointed to SCOTUS, “proposed an elegant solution to the issue now before the Court" when he argued in Currin v. Wallace that "the non-delegation doctrine applies only when Congress delegates power to the President" and "that congressional delegations to federal agencies, independent boards, and private actors are not subject to" the doctrine. Acknowledging that SCOTUS decided Currin without addressing Jackson's theory, they said the court should read his "thoughtful brief" and reverse the 5th Circuit.

Sens. Ed Markey, D-Mass., and Ron Wyden, D-Ore., slammed the ruling of the 6th U.S. Circuit Court of Appeals (see 2501020047) vacating the FCC’s April net neutrality order. In a statement released Thursday, the lawmakers said, “Without net neutrality, consumers, small businesses, and innovators alike will face increased costs, reduced choice, and less competition. It is a lose-lose-lose.” They added, “This ruling upends the fundamental principle that internet service providers should not act as gatekeepers, favoring certain users, content, or services over others." Markey and Wyden said the decision also shows why the U.S. Supreme Court was wrong when it overturned the Chevron doctrine. The opinion “makes basic errors about communications technologies, neatly illustrating why expert regulators, not judges, are best positioned to make complex public policy decisions.” Andrew Schwartzman, senior counsel at the Benton Institute for Broadband & Society, in an email wrote that the opinion “misreads” the 1996 Telecom Act “in finding that broadband internet service is not subject to the regulatory requirements of Title II of the Communications Act.” Among other concerns, “that deprives the FCC of the power to protect national security, insure that competitive broadband suppliers can have access to necessary distribution outlets and endangers wireless access programs for low-income consumers.” The “good news” was in the judges didn’t do, Schwartzman said. The three-judge panel “gave a narrow reading to the impact of the recent Supreme Court’s Loper Bright decision overruling the Chevron doctrine,” he said. The court also didn’t “rely on the carriers’ ‘major question doctrine’ arguments, so that the FCC will retain the power to regulate various aspects of broadband service without future Congressional action.” But Seth Cooper, Free State Foundation director-communications policy studies, said the court offered a “straightforward reading” of the Communications Act. The opinion was “refreshing because it shows how traditional tools of statutory interpretation can be used to resolve even seemingly technical questions like the regulatory classification of broadband,” Cooper emailed: “It’s the type of decision that eluded us so long as lower courts were subject to the ‘Chevron doctrine’ and effectively required to rationalize even far-fetched agency interpretations or re-interpretations of supposed ambiguous statutory provisions.”

Consumers’ Research asked the 5th U.S. Circuit Court of Appeals to vacate the FCC’s USF contribution factor for Q1 of this year, set by the agency last month. The group, and its allies, had already asked the FCC to zero out the contribution factor (see 2412130016), calling it “an unconstitutional tax raised and spent by an unaccountable federal agency.” The 5th Circuit earlier found in a 9-7 en banc decision that the contribution factor is a "misbegotten tax.” That decision is before the U.S. Supreme Court (see 2412100060). “Congress’s standardless delegation to the FCC of legislative authority to raise and spend nearly unlimited money via the Universal Service Fund violates Article I, section 1 of the U.S. Constitution,” said the filing with the court: USF charges “are taxes and therefore Congress’s standardless delegation to the FCC of authority to raise and spend nearly unlimited taxes violates Article I, section 8” of the Constitution.

FCC Chairwoman Jessica Rosenworcel this week listed making communications “more just for more people in more places,” protecting consumers and “leaning into the future” as among her core values during her FCC career. In a post summarizing her 2024 accomplishments, she also mentioned “making communications available to all” and “putting national security and public safety front and center” as guiding principles. “I believe these are the things we need to do to build a digital future that works for everyone,” she wrote. “I am gratified to see that the FCC has made real progress to advance these principles during 2024, defining my time at the agency.” In the post, Rosenworcel laid out all the actions the agency has taken, from the affordable connectivity program, to creating a Missing and Endangered Persons event code, to responding to the Salt Typhoon cyberattack (see 2412300039). Salt Typhoon “has resulted in unprecedented coordination between the FCC and our national security counterparts across government,” she said. During her tenure, the FCC “engaged with over 540 representatives and stakeholders across 78 countries to share FCC best practices, strengthen relationships, and advocate our positions on topics ranging from robocalls to spectrum management and satellite licensing to media and broadcast issues,” Rosenworcel said. “Everything I have mentioned in this note was made possible by working together with my colleagues at the agency and, of course, the remarkable public servants at the FCC, who have a deep and dynamic understanding of communications technology.” She added, “I am grateful for their efforts and proud of what we accomplished together to build a digital future that works for everyone.”

The FCC Wireline Bureau on Monday issued an order that gives certain carriers additional six-month extensions on deadlines to remove Huawei and ZTE components from their networks to comply with the rip-and-replace program. Congress recently provided additional funding for the FCC’s Secure and Trusted Communications Networks Reimbursement Program, providing $3.08 billion to close the funding gap (see 2412240036). The order highlights problems providers face beyond funding. Gogo Business Aviation, which in October updated the commission on its struggles to complete work (see 2410040028), received an extension from Jan. 21 to July 21. The bureau said it found Gogo’s complaints persuasive. “Rather than rely on commercial off-the-shelf parts and equipment, Gogo states that much of its replacement ground network will rely on newly developed software and hardware that require lab testing and FCC equipment authorization,” the order said: “However, Gogo’s ground-based equipment vendor is continuing to face delays from component manufacturers due to long lead times, which affects the delivery of replacement network equipment at scale.” Northern Michigan University (NMU) received an extension from Jan. 20 to July 20. “NMU states it has experienced significant delays in replacing customer premises equipment units because multiple deliveries of those units contained a high percentage of defective equipment and therefore had to be re-shipped months later.” The units also “require software updates from the manufacturer before NMU can begin mass testing and deployment.” Alaska’s Copper Valley Wireless received an extension from Jan. 21 to July 21 after complaining about the lack of tower construction crews in the state. Copper Valley “adds that delivery of equipment to Alaska requires the use of long and multiple modes of transport to reach remote sites, which further delays progress when construction seasons are so short,” the order said. The extension for Flat Wireless is from Jan. 14 to July 14. It told the FCC the funding shortfall “limited its deployment efforts, which has resulted in delays and additional costs that have necessarily extended its project timeline beyond the current term expiration date.” Hargray Communications was granted an extension from Jan. 13 to July 13 after complaining of problems obtaining nondefective gear and accessing private property to install it. LigTel Communications got an extension from Jan. 22 to July 22 after complaining of supply chain issues, and Pine Belt Cellular, an extension from Jan. 17 to July 17. Pine Belt cited “delays involving key hardware needed to replace the core of its network, as well as delays in obtaining the experienced skilled labor necessary to work on both the core and the radio access network.” Other carriers getting extensions, and the revised deadlines were: Nemont Telephone Co-op (Aug. 26), Santel Communications Co-op (July 25), Union Telephone (July 6-15 for parts of its network) and Windy City Cellular (July 27).

AT&T and Verizon acknowledged Saturday that their networks were part of the U.S.-based infrastructure that was hacked in Salt Typhoon Chinese government-affiliated operation (see 2411190073), but both carriers insisted their operations are now secure. “We detect no activity by nation-state actors in our networks at this time,” an AT&T spokesperson said. “Based on our current investigation of this attack, the People's Republic of China targeted a small number of individuals of foreign intelligence interest.” The carrier said it monitored and secured its networks following the attack to protect other consumers’ data. Verizon Chief Legal Officer Vendana Venkatesh likewise said the carrier has “not detected threat actor activity in Verizon's network for some time, and after considerable work addressing this incident, we can report that Verizon has contained the activities associated with this particular incident.” Anne Neuberger, deputy national security adviser-cyber and emerging technology, said during a Friday conference call with reporters that the federal government has identified a ninth U.S.-based telecom provider compromised in the Salt Typhoon hack. The “Chinese gained access to networks and essentially had broad and full access,” which allowed them to “geolocate millions of individuals, to record phone calls at will,” Neuberger said. She said FCC Chairwoman Jessica Rosenworcel’s draft declaratory ruling finding that Communications Assistance for Law Enforcement Act Section (CALEA) Section 105 requires telecom carriers to secure their networks against cyberattacks (see 2412050044) would help limit the impact of future hacks.

The Wireless Infrastructure Association was among the four industry groups that filed an amicus brief at the U.S. Supreme Court in McLaughlin Chiropractic Associates v. McKesson (see 2412260037).

The FCC is rechartering its Disability Advisory Committee for a two-year term, said a notice in Friday’s Federal Register. More details, including the first meeting date and agenda topics, will be announced later. The last iteration of the DAC held its final meeting in October (see 2410180032).

Informal consumer complaints to the FCC regarding telemarketing, robocall and caller ID spoofing continue falling, according to an annual agency report to Congress released Friday. The report from the agency's Enforcement, Wireline, and Consumer and Government Affairs bureaus is required under the Telephone Robocall Abuse Criminal Enforcement and Deterrence (Traced) Act. In 2023, the agency received 31,042 complaints about the receipt of unsolicited marketing calls or faxes using an artificial or prerecorded voice or an automated dialer. That compares with more than 39,000 in 2022 and more than 46,000 in 2021. It said it received 57,917 complaints last year about sales calls to residential or wireless telephone numbers in the National Do Not Call Registry, down from nearly 71,000 in 2022 and nearly 98,000 the year before that. It said it received 14,715 complaints involving fax or artificial or prerecorded voice systems, down from 19,000 in 2022 and nearly 29,000 the year prior. The agency received 31,594 misleading or inaccurate caller ID complaints in 2023, compared with nearly 40,000 in 2022 and more than 57,000 in 2021. The FCC's 2023 Traced Act report to Congress reported informal consumer complaints tallied through Nov. 30 of last year. When asked Friday about the change in reporting, with this year's report providing 12 months of 2023 but no 2024 numbers, the FCC didn't comment. The agency said that neither it nor DOJ collected forfeiture penalties or criminal fines for Telephone Consumer Protection Action Act violations in 2023.

The growing number of companies on the Build America Buy America self-certification list shows the White House's prioritization of expanding broadband access and strengthening American manufacturing, NTIA wrote this week. The BABA list, with 18 recent additions, now totals 45 self-certified manufacturers that produce broadband equipment that meets federal standards for domestic production, it said. NTIA said it will continue updating the list with participating companies.