The 5th U.S. Circuit Court of Appeals denied Consumers' Research's challenge of the FCC's method for funding the USF under the nondelegation doctrine, in a ruling Friday (see 2212060070). The FCC "has not violated the private nondelegation doctrine because it wholly subordinates" the Universal Service Administrative Co., the court said, noting Congress "supplied the FCC with intelligible principles when it tasked the agency with overseeing" USF.
Gabriella Novello
Gabriella Novello, Assistant Editor, is a journalist for Communications Daily covering telecommunications and the Federal Communications Commission. She joined the Warren Communications News staff in 2020, after covering election integrity and the 2020 presidential election at WhoWhatWhy. She received her bachelor's degree in journalism with a minor in health promotion at American University. You can follow Novello on Instagram and Twitter: @NOVELLOGAB.
A three-judge panel on the 6th U.S. Circuit Court of Appeals questioned the timing of Consumers' Research's challenge of the USF 2021 Q4 contribution factor and how the nondelegation doctrine applied to the FCC's determination of the quarterly factor Thursday. Judges heard oral argument Friday on the challenge (see 2303060069).
A three-judge panel on the 5th U.S. Circuit Court of Appeals in New Orleans questioned the procedure of Consumers’ Research’s challenge of the FCC’s method for funding the Universal Service Fund under the nondelegation doctrine, during oral argument Monday. Judges also pressed the FCC on whether Congress should be tasked with setting specific funding limitations and how the FCC reviews the quarterly contribution factor calculations made by the Universal Service Administrative Co.
Duke Energy asked the 4th Circuit U.S. Court of Appeals to review an FCC November order denying its petition for reconsideration on a pole attachment rate dispute with AT&T. Parts of the order "exceed or are inconsistent with the FCC’s jurisdiction and statutory authority" and are "an abuse of discretion," the company said in a petition posted Monday in docket 22-2220 (see 2211170051). It also argued the order violated the Administrative Procedures Act. Duke asked the court to vacate parts of the order "to be designated in the time, form, and manner required by the court." The petition stems from a September 2021 Enforcement Bureau order partly granting AT&T's complaint that it was charged "unjust and unreasonable" pole attachment rates by Duke (see 2109210075). AT&T declined to comment. The FCC didn't comment.
Consumers’ Research's challenges to several of the FCC’s Universal Service Fund contribution factors may be an attempt to force a decision by the Supreme Court on the nondelegation doctrine, said academics and attorneys in interviews. Some said the group brought the exact same argument in multiple courts of appeals to forum shop and engineer a circuit split.
FCC Commissioner Brendan Carr backed an Office of General Counsel amicus on the National Lifeline Association's challenge of the California Public Utilities Commission's requirement that wireless providers charge no co-payment to participate in the state's Lifeline program. Carr, in a statement Friday, agreed with the brief's position that the commission "has never addressed whether states may advance universal service by requiring wireless providers to offer minimum service standard plans with a $0 copayment as a condition of receiving state subsidies through a voluntary program like California LifeLine." The brief, filed in August in case 21-15969 with the 9th Circuit U.S. Court of Appeals, was written in support of neither party.