Solicitor General Asks Supreme Court to Review Ruling on Universal Service Fund's Constitutionality
Supreme Court likely to hear case that could significantly affect the $4 billion E-rate program for schools and libraries
The U.S. Solicitor General recently sought Supreme Court review of an en banc decision by the U.S. Court of Appeals for the Fifth Circuit, which found the Federal Communications Commission-run Universal Service Fund (USF) to be unconstitutional. The Solicitor General asked the Court to determine that the program is lawful. In contrast, Attorneys General from 14 states, led by West Virginia, also requested Supreme Court review, taking the opposite position—that the fund is unconstitutional.
The high-profile requests make it almost certain that the high court will grant review. The pending litigation could uphold, or create havoc for, key programs supported by the USF—including the FCC’s E-Rate program, which provides $4 billion annually to schools and libraries. Parties seeking to weigh in on the Court’s decision should start mobilizing now because amicus briefs could be due as early as approximately 50 days after the Court grants certiorari. If granted, the Supreme Court’s review will likely hear oral argument in the case Spring 2025 and resolve it by the end of the term in June 2025.
The USF collects and disburses approximately $8 billion annually. The USF funds the E-Rate, which subsidizes connectivity for schools and libraries; the Lifeline program, which subsidizes low-income households with their phone and broadband bills and will be increasingly important with the end of funding for the Affordable Connectivity Program; and programs that fund residential and health care communications services in rural, high-cost areas. USF-supported programs will continue while litigation proceeds: although the Fifth Circuit found the program to be unconstitutional, it did not vacate the current program, instead remanding it to the FCC for further proceedings.
As BBK reported this summer, the Fifth Circuit opinion, a 9-7 en banc ruling of all the judges in the Fifth Circuit, conflicts with decisions by two different U.S. Courts of Appeal which found the USF to be constitutional: Consumers’ Research v. FCC, 67 F.4th 773 (6th Cir. 2023) and Consumers’ Research v. FCC, 88 F. 4th 917 (11th Cir. 2024).
This is a high-level summary, clients seeking to further understand the ruling and its implications for E-rate or other USF programs of importance to local governments, including those that may want to support review by the U.S. Supreme Court, should contact their BBK counsel for advice.
Disclaimer: BBK Legal Alerts are not intended as legal advice. Additional facts, facts specific to your situation, or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information herein.
