In previous editions of the ICORE Blog we reported on a July, 2024 ruling by the U.S. Court of Appeals for the Fifth Circuit finding that the FCC’s Universal Service Fund (USF) is unconstitutional as it is currently administered. The ruling came in the case of Consumer Research et al (Challengers) v. the FCC. The Fifth Circuit found that the USF funding mechanism and its administration by USAC violates the Constitutions nondelegation doctrine, a rule that limits the ability of Congress to delegate its authority to agencies or private entities. The Fifth Circuit found that the USF funding mechanism and its assessment of contribution fees are in effect a tax and that since the level of and collection of the fees are delegated to a private entity (USAC),the process violates the nondelegation doctrine. In August, 2024, the FCC filed an unopposed Motion for a Stay of the Fifth Circuit’s July 2024 Ruling and the Fifth Circuit granted the FCC’s Motion. In granting the Stay, the Fifth Circuit stipulated that Stay would expire on October 1, 2024 unless the FCC files an appeal with the U.S. Supreme Court on or before September 30,2024 in which case the Stay would remain in effect pending a ruling by the U.S. Supreme Court.
On September 30, 2024 the FCC filed a writ of certiorari with the U.S. Supreme Court seeking review of the Fifth Circuit’s July, 2024 ruling. The FCC’s filing argues that Congress did not delegate legislative power to the FCC and further the FCC did not delegate its authority to USAC. On November 22, 2024, the Supreme Court granted the FCC’s petition for review of the Fifth Circuit’s July, 2024 ruling. It is expected that the Parties will file briefs in the coming months. The Supreme Court’s Order requires the Parties’ briefs to address the questions presented in their Petitions as well as the additional question as to whether this case is moot in light of the Challengers’ failure to seek preliminary relief before the Fifth Circuit. There is no definite date set for resolution of this issue by the Supreme Court.
On another matter, in the October 22, 2024 edition of the ICORE Blog we reported on a FCC Notice of Inquiry (NOI) seeking input on the current state of broadband data caps and their impact on competition and consumer’s access to broadband services. The NOI seeks input regarding consumer usage, consumer choice, as well as the impact of data caps on public safety and service quality. In addition the NOI seeks input as to the impact of data caps on consumers with disabilities and low income consumers. The NOI also seeks comment on broadband providers existing disclosures regarding data caps and whether additional disclosures requirements are needed.
Comments and Reply Comments have been filed relative to the NOI on broadband data caps. The majority of the comments reviewed urge the Commission to take no further action regarding broadband data caps. A common thread among the comments reviewed suggested that regulating usage limits and data caps is outside the scope of the FCC’s authority given the fact that the FCC’s assertion that it has Title II authority over Broadband Internet Access Service is currently at issue in the Courts. Further concerns were expressed that further regulating plans with usage limits would limit consumer choice and could increase prices for some consumers. Relative to the issue of existing disclosures regarding data caps, comments were filled asserting that Broadband Consumer Labels were sufficient to inform consumers about usage limits at the point of sale. The FCC will now consider the Comments and Reply Comments filed and will determine at some later date whether additional rules regarding broadband data caps are required.
