The already-high USF contribution factor is expected to rise, based on a Friday filing at the FCC by the Universal Service Administrative Co. The factor is projected to increase from 36% in Q3 to 39.3% in Q4. Congressional leaders recently relaunched a bipartisan working group to study a USF legislative revamp (see 2508010051), but experts warned Monday that addressing USF won’t be easy.
The recently relaunched bipartisan congressional working group studying a USF legislative revamp is seeking a new round of stakeholder comments about how to proceed and has opened a portal for submissions, Senate Communications Subcommittee Chair Deb Fischer, R-Neb., said Friday. Meanwhile, the Digital Progress Institute said in a white paper Thursday that USF's current contribution mechanism is “unsustainable” and “horrendously inefficient.”
The FCC avoided a potentially disastrous result when the U.S. Supreme Court upheld the USF contribution factor in its Consumers’ Research decision last month (see 2507020049), HWG’s Chris Wright said during a practitioners panel that was part of an FCBA CLE Tuesday (see 2507150081). “If the case had gone the other way” it would have “called into question almost everything in the Communications Act,” said Wright, a former FCC general counsel.
Leaders of the House and Senate Commerce committees who are spearheading the bipartisan congressional working group on a USF legislative revamp, which relaunched in June (see 2506120091), told us they plan to begin meeting again this month. But they said they feel less pressure to quickly reach an agreement on legislative recommendations since the U.S. Supreme Court's recent ruling in Consumers’ Research v. FCC, which found that USF’s funding mechanism is constitutional (see 2506270054). Sens. Ben Ray Lujan, D-N.M., and John Thune, R-S.D., formed the working group in 2023 as Communications Subcommittee chairman and ranking member, respectively (see 2305110066).
Former FCC Commissioner Mike O’Rielly said Wednesday that while he has long been a critic of the USF, he was relieved that the U.S. Supreme Court last week didn’t overturn the program (see 2506270054). Cutting off support that USF recipients need would be “a terrible outcome,” O’Rielly said during a Broadband Breakfast webinar.
The U.S. Supreme Court upheld the FCC’s USF contribution scheme in a 6-3 opinion Friday in Consumers’ Research v. FCC, but dissenting and concurring opinions from several conservative justices appeared to invite future challenges, attorneys told us.
The USF's future is one of the biggest issues for Competitive Carriers Association members, CEO and President Tim Donovan said in an interview. The organization is “cautiously optimistic” following U.S. Supreme Court arguments in the Consumers' Research case (see 2503260061), he said.
The government defended the FCC in a reply brief in FCC v. Consumers’ Research, the USF case before the U.S. Supreme Court, arguing that Consumers' Research (CR) creates a “straw man” to attack. Public interest groups, led by the Schools, Health & Libraries Broadband Coalition, also defended the legality of how the USF contribution factor is calculated. SCOTUS is set to hear oral argument March 26.
WTA members are concerned about the uncertainty stemming from the U.S. Supreme Court review of FCC v. Consumers' Research, a case that could invalidate how the USF program is funded (see 2501090045), as well as the future of the enhanced alternative connect America cost model program, representatives from the group said in a meeting with aides to FCC Chairman Brendan Carr. WTA members also “raised the need for addressing both USF contribution and distribution reform,” said a filing posted Wednesday in docket 10-90. “The current contribution factor is above 36% and is unsustainable, and therefore the Commission should look to assess [broadband internet access service] providers and work with Congress to have edge providers and others who should be contributing to USF do so in order to bring the contribution factor down and be spread equitably among all users.” The WTA members also reported on meetings with aides to Commissioners Nathan Simington and Anna Gomez.
Consumers’ Research is getting support from other right-of-center groups as it pushes a legal theory at the U.S. Supreme Court that poses a challenge to the USF's future. SCOTUS will hear FCC v. Consumers' Research on March 26, challenging the 5th U.S. Circuit Court of Appeals’ 9-7 en banc decision invalidating how the USF program is funded (see 2501090045).