Supreme Court Receives Tremendous Support for FCC’s Universal Service Fund

FCC, SHLB, Industry and Amici File Opening Briefs with Supreme Court

The Supreme Court’s consideration of the Consumers’ Research challenge to the Universal Service Fund has drawn significant attention. 

Last month, the FCC (the Petitioners in this case) filed its opening brief with the Supreme Court to  defend the Universal Service Fund (USF), arguing that the Commission has the authority to assess fees on telecommunications providers that are then used to support the various USF programs.  

SHLB, as one of the named parties in the case, also filed a brief in support of the FCC (along with the Benton Institute for Broadband & Society, the National Digital Inclusion Alliance (NDIA), and MediaJustice). Specifically, we argue in our opening brief that:

• Congress provided ample statutory guidance to the FCC in crafting and maintaining the USF in compliance with the “intelligible principle” test established by previous Supreme Court decisions; and 

• The Fifth Circuit court failed to understand that the Universal Service Administrative Company (USAC) is a ministerial organization that does not set policy and operates under the direction of the FCC. 

The Competitive Carriers Association, NTCA, and USTelecom -The Broadband Associations also filed a brief supporting the FCC and the USF.

Other Organizations Weigh In to Defend the Importance of the USF

On January 16, even more support for the FCC and the USF poured in. Over 20 organizations filed amicus briefs, offering expert perspectives about the USF's purpose and scope. These organizations, ranging from public interest groups and former FCC and USAC officials  to industry associations, each brought unique insights into how the fund impacts consumers, businesses, and the broader telecom landscape. We describe a few examples below:

• Oglala Sioux Tribe: Describes the unique challenges faced by the Oglala Sioux tribal members living on the Pine Ridge Indian Reservation (located in southwestern South Dakota and northwestern Nebraska). The tribal poverty rate is 48.7%, as compared to the poverty rate of all people in the United States of 12.5%, and reservation members face severe educational and health-related challenges. Argues that the USF programs are critical to address these dire conditions. Specifically, USF subsidies have directly benefited Oglala Sioux tribal members by delivering health care to remote reservation communities, benefitting schools and libraries, and supporting telecommunications infrastructure on the reservation. Also argues that USF subsidies fulfill the Government’s treaty obligations to provide Tribal financial assistance in exchange for the use of Tribal lands and natural resources.

• The American Library Association: Sets out that libraries have evolved to places where one can access unlimited online information resources made affordable through the USF’s E-Rate program - the Fifth Circuit’s decision jeopardizes advancing educational and economic opportunity for Americans. Universal service is a national priority and the E-Rate program has maintained both success and bipartisan support. E-Rate not only supports internet connectivity at the library, but helps libraries promote broadband-enabled programs (like ACP) and provide electronic educational, employment, business development, emergency communications, and telehealth services. Suggests the FCC could take additional steps to strengthen its oversight of USAC, should the court deem it necessary.

• AASA, The Schools Superintendents Association et al.: Argues that universal service is not amorphous and schools and libraries have built a reliance interest on it. The E-Rate program successfully brings affordable internet access to schools and libraries, which in turn shows that Section 254’s principles are intelligible and have been put into practice. E-Rate subsidies are the primary funding mechanism that allows public schools to upgrade their IT infrastructure. Over the last two years, around 106,000 schools and 12,597 libraries received over $7 billion in E-Rate support, with over 50 million students  benefitting from access to high-speed internet. E-Rate successfully supports outcomes serving an educational purpose by facilitating online testing, allowing for networks that form the backbone of school security systems, and supporting digital tools that aid in school administration activities.

Below is the complete list of organizations that filed amicus briefs. You can also follow along with the case by viewing the public docket online.