Tag Archives: Fifth Circuit Court of Appeals

Courts Invalidate USAC

The Fifth Circuit Court of Appeals ruled last week that the FCC had exceeded its statutory authority  years ago when it established the Universal Service Administrative Company (USAC) to administer the Universal Service Fund.

The case in front of the court involved Consumers’ Research, which challenged the latest FCC calculation of the contribution factor used to establish the fee that telcos pay into the fund. Consumers’ Research had also challenged the FCC’s authority to establish USAC to administer the fund.

To provide some context, Congress established the Universal Service Fund (USF) in the Telecommunications Act of 1996. At that time, after some debate, the FCC decided that establishing a neutral non-profit was the best way to protect the operation of the USF from the impact of politics. It’s hard to understand the Court’s ruling, because USAC never acts on its own and is fully under the control of the FCC. The company is funded out of the fees collected to operate the USF. The FCC has always been free to audit USAC or to change the rules on how it operates.

In day-to-day practice, USAC is truly an administrator. The FCC still establishes the rules for every use of funds. This includes a variety of programs like the E-Rate program for schools and libraries, various programs to support communications for rural health clinics and hospitals, various subsidies that support rural broadband like RDOF and CAF II, and the Lifeline subsidy program that provides a small discount for broadband or cellphones.

USAC doesn’t establish the rules for any of these programs but is tasked with making sure that fund recipients are following the rules established by the FCC, including the ability for USC to audit USF participants. USAC’s primary day-to-day responsibilities are to collect fees to fund the program and to disperse the funds to participants in the various programs.

What does this ruling mean? The FCC has to first decide how it wants to respond to the court ruling. It’s been reported in the press that the FCC says the ruling goes into effect in two months if the agency doesn’t  appeal the ruling. If the FCC appeals the ruling, the most routine outcome would be a court ordering business as usual until that appeal can be heard. It’s not certain that the FCC will appeal the case, and if it doesn’t, things get messy very quickly.

The FCC would have to somehow try to take over USAC functions. The agency is not staffed to do so, which would likely result in chaos. It probably wouldn’t be easy, or even possible, for the FCC to somehow absorb USAC staff.

The companies that pay into the USF would be in limbo because the collection process would be disrupted. I picture legal challenges and confusion and possibly lawsuits related to whether telcos owe fees to the FCC, the federal Treasury, or to nobody. Disbursements from the fund would quickly be disrupted. That would be a major problem for the many entities that draw payments from the $9 billion annual fund. It’s hard to picture what happens when schools can no longer pay their broadband bill or ISPs suddenly stop receiving RDOF or other subsidies. Millions of people would likely lose their monthly billing discounts from Lifeline. USAC also has extensive audit powers, and it’s not clear that the FCC could insert itself into existing audits.

The only alternative to the above chaos would be if Congress quickly stepped in to provide some way to keep the USAC functions going. That sounds like a huge challenge in a lame duck session during the holidays. Stay tuned, because this could turn into something extremely messy.

Restart on Digital Discrimination Rules

On May 6, the U.S. Court of Appeals for the Eighth Circuit vacated the FCC’s digital discrimination rules. The discrimination rules were required by the Infrastructure Investment and Jobs Act (IIJA). The FCC took an interesting approach to the issue and defined discrimination in two ways. The FCC prohibited intentional discrimination – meaning that ISPs can’t have policies and practices that are clearly intended to discriminate against any portion of the public. The FCC also prohibited disparate discrimination, which measures discrimination by looking at the results of ISP practices in the market rather than trying to judge the intentions of ISPs.

As was expected for almost all FCC orders these days, ISPs quickly banded together and sued to stop the FCC order. The U.S. Chamber of Commerce brought the first suit in the Fifth Circuit Court of Appeals in January on behalf of big ISPs like AT&T, Charter, Comcast, T-Mobile, and Verizon. Twenty industry groups like NCTA, WISPA, ACA Connects, and US Telecom entered the fray, and the suits were eventually joined into one case in the Eighth Circuit.

The ISP industry threw a number of arguments against the wall, hoping one would stick. The primary complaint was that Congress didn’t intend to impose a disparate discrimination test, and that disparate discrimination is rarely applied anywhere in the regulatory world. The ISPs also argued that the FCC violated the major questions doctrine with its ruling. This concept was based on recent Supreme Court rulings that prohibit federal agencies from adopting regulations that have “vast economic and political significance” without clear authorization from Congress. ISPs argued that the FCC went further in its discrimination rules than was specifically authorized by Congress. Finally, ISPs said the ruling was too widely applied, and should only have been applied to last-mile ISPs, while the FCC rules applied to a wider market, such as MDU owners who provide broadband in their buildings.

The Court made a number of rulings. It said the FCC had overreached its authority since Congress had not explicitly allowed a disparate discrimination test. The Court also ruled that the FCC had exceeded its authority by applying the discrimination rules to entities other than last-mile ISPs.

The Court completely vacated the FCC’s 2023 discrimination order, which means it is the same as if it didn’t exist. The FCC is still obligated by the IIJA to implement discrimination rules, so we can expect the FCC to restart the process. Any new FCC proposed rules will undoubtedly acknowledge the Court rulings.

The natural question to ask is what the court order means in the market. There should be little immediate impact since the FCC’s 2023 discrimination rules never went into effect when they were immediately challenged in court.

There will be repercussions since the Court considerably weakened the 2023 FCC order by only allowing the intentional discrimination test. It seems likely that it will be nearly impossible to prove that an ISP intentionally discriminated against some subset of customers. The proof would have to be some sort of written documentation or public statement that proves the ISP’s intention to discriminate. The Court eliminated the disparate discrimination test, which is basically an “if it quacks like a duck, it is a duck” test. That’s the kind of test that has routinely been applied to housing discrimination complaints, as was ordered by the Fair Housing Act. The revised rules will also let landlords off the hook since they will not be subject to broadband discrimination complaints.