Those of us who are dedicated to solving the digital divide are suffering from whiplash. The FCC has recently taken several courageous steps to make broadband connectivity more affordable for millions of American consumers. Unfortunately, a federal court is taking us in the opposite direction. The situation reminds me of the famous two-headed pushme/pullyu creature gifted to Dr. Dolittle. Which way are we going?
The Federal Communications Commission (FCC), under the able leadership of Chairwoman Jessica Rosenworcel, adopted several significant orders over the past year to 1) simplify the E-rate process for Tribal and small libraries; 2) make E-rate funding available for school bus Wi-Fi; 3) adopt a 3-year cybersecurity pilot program; and 4) allow schools and libraries to receive E-rate funding for mobile hotspots.
Unfortunately, a previously unknown organization called Consumers’ Research filed legal challenges to the federal Universal Service Fund (USF) in four different federal circuit courts of appeal. The group argued that the USF collection system is unconstitutional because Congress did not give sufficient direction authorizing the FCC to collect this funding. The FCC (and SHLB) filed strong opposition briefs, and the petitioners lost in all four cases.
Consumers’ Research nonetheless launched a “Hail Mary” pass – asking the entire 5th Circuit en banc to re-hear the case. Last month, to our great dismay, the full court ruled by a 9-7 vote that the USF collection mechanism violated Article I, Section 1 of the Constitution, which gives all legislative power (including the power to assess taxes) to Congress. In a twisted bit of legal ju-jitsu, the Court noted that there was a double delegation – from Congress to the FCC, and from the FCC to USAC – neither of which alone triggered a constitutional problem, but when combined created a constitutional violation.
In my view, the FCC can address the 5th Circuit en banc court’s concerns by taking stronger oversight of USAC, and it can continue to operate the USF (including the E-rate program) because the 5th Circuit remanded but did not vacate the USF rules.
This is not the only legal challenge to the FCC’s authority. The FCC’s school bus Wi-fi decision has also been challenged in the 5th Circuit, and challenges to the hotspot lending order are also expected.
For its part, Congress has not been able to find consensus to restore funding for the Affordable Connectivity Program (ACP); nor has the Congressional working group moved forward with a plan to revamp the Universal Service Fund (USF).
SHLB will be exploring all of these issues in our upcoming annual conference – AnchorNets – on Oct. 2-4, 2024. Let’s hope we can avoid Dr. Dolittle’s solution – taking this two-headed animal to the circus.
