Petitioners Press Their Case for Expedited Consideration of E-rate Appeal

The FCC’s March 7 response opposing Essential Network Technologies and MetComm.net's Feb. 26 emergency motion to expedite consideration of the companies' E-rate program appeal “confirms that the motion should be granted,” according to the petitioners’ reply Wednesday (docket 24-1027) at the U.S. Court of Appeals for the D.C. Circuit.

The Essential and MetComm.net Feb. 14 petition for review challenges the authority of the FCC and the Universal Service Administrative Co. (USAC) to stop processing the reimbursement of discounts for IT and broadband services that MetComm and Essential provided to schools under Section 254 of the Communications Act (see 2402200044). Their motion for expedited consideration argued that unless a briefing schedule is set that would allow for a D.C. Circuit decision on the appeal before the end of the court’s May sitting period, numerous elementary and secondary schools will be deprived of affordable IT infrastructure and broadband service for the new school year this fall.

But the FCC’s opposition said the petitioners have provided no compelling reasons for the D.C. Circuit to expedite review. “Under the circumstances, far from needing to expedite this case,” the D.C. Circuit “lacks jurisdiction to decide it,” because there is no final FCC action for the court to review, said the commission’s opposition.

The petitioners countered in their reply that the agency in its opposition didn’t “attempt to refute” their showings “that they are being irreparably harmed” by the USAC’s “years-long delay” in confirming their eligibility for funding to provide universal service to schools and libraries under the E-rate program and that such harm “would increase if this appeal is not expedited.” Nor did the FCC challenge the petitioners’ showing that the public has an unusual interest in prompt disposition of this matter, “as the upcoming school year is looming,” it said.

Schools serving low-income households “should not have to wait yet another year to receive critical support to help them provide high-speed broadband and IT infrastructure to their students,” said the petitioners’ reply. The FCC doesn’t refute the petitioners’ showing that, at a minimum, they had made a substantial challenge regarding the years-long delay in rendering a funding decision, it said. The motion to expedite the appeal should be granted, it said.

The FCC’s opposition also doesn’t “devote a single word” to refuting the petitioners’ showing that delayed adjudication will cause “irreparable injury,” which is a key element “supporting expedited consideration of this matter,” said the reply. The petitioners demonstrated in their motion “that they, schools serving low-income populations, and the public already have suffered irreparable harm by USAC’s years-long, indefinite freeze on providing funding to enable schools to receive IT and broadband services at discounted prices” under the E-rate program, it said.