In previous editions of the ICORE Blog (8/3/24, 9/3/24/ and 10/9/24) we discussed the case of Consumers’ Research et al v. the Federal Communications Commission challenging the constitutionality of the FCC’s Universal Service Fund program. In July 2024, the U.S. Court of Appeals for the 5th Circuit found that the USF, as it is currently administered, is unconstitutional. In response to this ruling by the 5th Circuit, the FCC In August 2024, filed a Motion for a Stay and the 5th Circuit granted the FCC’s Motion. In granting the FCC’s Motion the 5th Circuit stipulated that the Stay would expire on October 1, 2024, unless the FCC filed 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 in the case by the U.S. Supreme Court. On September 30, 2024, the FCC filed a petition with the U.S. Supreme Court seeking review of the 5th Circuit’s ruling. As of this writing, the U.S. Supreme Court has not agreed to review the case, but the following events have since occurred relative to this case:
* The Schools, Health and Libraries Broadband Coalition et al (SHLB) filed a Petition with the U.S. Supreme Court on October 11, 2024, asking it to review the 5th Circuits July 2024 ruling finding the USF to be unconstitutional. SHLB posited that absent review, the 5th Circuit’s decision threatens to undermine the USF program that provides billions of dollars of support for schools, libraries, and healthcare providers.
* On October 23, 2024, the Attorneys General of West Virginia and 14 other states and the Arizona state legislature filed a petition with the U.S. Supreme Court in support of the petitioners, Consumers’ Research et al, regarding the 5th Circuit’s ruling on the USF. The Attorneys General argue that Congress should find a way to fund universal telecommunications services and Congress, not industry participants, needs to address the issue.
* On October 29, 2024, NARUC released draft resolutions that will be considered at its annual meeting on November 10, 2024. Regarding telecommunications, NARUC will address a resolution to file a petition with the U.S. Supreme Court in support of the FCC in the Consumers’ Research et al v. the FCC case.
On August 19, 2024, and September 19, 2024, we discussed claims filed with the FCC by Arvig Enterprises and Bevcomm alleging that their EA-CAM support amounts were understated as a result of the incorrect classification of Midcontinent Communications (Midco) as an unsubsidized competitor offering voice and broadband services in their service territories. The Companies contend that Midco does not offer voice services in their territories and therefore does not meet the definition of an unsubsidized competitor. In response to the Arvig/Bevcomm filing, the FCC released a Public Notice seeking comment on the issue. Comments were originally requested by September 11, 2024, but the filing date was subsequently extended to September 27, 2024. Since our last writing on this topic, comments have been filed by numerous parties, including other telcos making claims similar to Arvig/Bevcomm of understated EA-CAM support as a result of the alleged misclassification of Midco as an unsubsidized competitor. In addition, comments by industry organizations have been filed in support of Arvig/Bevcomm. For its part, Midco has commented that it does provide voice services in some of the specific locations identified by Arvig/Bevcomm as lacking voice services and that Arvig/Bevcomm has not demonstrated that Midco does not provide voice service generally in the service area. Most recently Arvig/Bevcomm has filed a response disagreeing with Midco’s claims and Midco has responded in kind. At this point there is no definite date by which a response from the FCC is expected.
