Commission and Consumers' Research Debate Next Steps in SCOTUS USF Case

The FCC and a coalition of industry and consumer groups urged the U.S. Supreme Court to grant their pending petitions for a writ of certiorari regarding the 5th U.S. Circuit Court of Appeals' ruling in Consumers' Research's challenge of the Universal Service Fund contribution mechanism (No. 24-354). The FCC, in a reply brief Thursday, said the two pending petitions are "better vehicles for clarifying the law in this sphere" than Consumers' Research's petition of the 6th and 11th circuits' rulings (see 2410010024). The 5th Circuit addressed whether Congress delegated legislative power to the FCC, whether the agency delegated governmental power to a private entity, and whether the combination of the two violates the Constitution. The 6th and 11th circuits "did not specifically discuss whether the combination of the two alleged delegations violates the Constitution, and the petitions seeking review of those circuits’ decisions do not raise that question," the FCC said. The 5th Circuit is the only court to have found a nondelegation violation, the commission noted. "Granting certiorari in this case would allow the Court to directly review the 5th Circuit's reasoning," the FCC said. The agency also noted that SCOTUS has already denied petitions seeking review of the 6th and 11th Circuit decisions. Consumers' Research said in a reply brief to the coalition petition that there wasn't a reason to grant it "as their interests are adequately represented by the government" (No. 24-422). NTCA, the Competitive Carriers Association, USTelecom, the Benton Institute for Broadband & Society, the National Digital Inclusion Alliance, and Media Justice petitioned SCOTUS to review the 5th Circuit ruling. Consumers' Research noted the coalition didn't seek to intervene in subsequent challenges it filed since that ruling, "apparently confirming their interests are adequately represented by the government."