Consumers’ Research Continues Legal Attacks on USF

If you thought attacks on the constitutionality of the Universal Service Fund were over, think again. Consumers’ Research, Cause Based Commerce, Inc., and several individuals filed a comment with the Federal Communications Commission, urging the agency to set the USF contribution factor to zero. Despite the recent 6-3 Supreme Court ruling upholding the constitutionality of the USF’s funding mechanism, the groups argued that questions remain about other parts of the program. “Several important arguments remain for why the USF, either in whole or in part, is unlawful, including in its application by the Commission,” the groups wrote. Many of the groups’ objections stemmed from issues raised in Justice Neil Gorsuch’s dissent issued in the June ruling. The most forceful of these concerned Sections 254(c)(3) and 254(h)(2) of the Telecommunications Act of 1996, which grant the FCC authority to provide, to the extent it is technically feasible and economically reasonable, “additional services” for schools, libraries, and health care providers. These sections form the basis for USF programs, including the Rural Health Care Support Fund and the E-Rate program. Taking their cue from JusticeGorsuch, who argued that “respondents remain free…to renew their attack on the constitutionality of [the USF] for its subsection (c)(3) and (h)(2) programs,” the groups, led by Boyden Gray partner Trent McCotter, asserted that these sections are unconstitutional because they violate the intelligible-principle test.