Amicus Curiae Brief — Federal Communications Commission, et al., Petitioners v. Consumers' Research, et al.
Supreme Court briefJan 16, 2025
Ask Donna
What actually matters in this document.
Text
Nos. 24-354 & 24-422
IN THE
Supreme Court of the United States
FEDERAL COMMUNICATIONS COMMISSION, et al.,
Petitioners,
v.
CONSUMERS’ RESEARCH, et al.,
Respondents.
SHLB COALITION, et al.,
Petitioners,
v.
CONSUMERS’ RESEARCH, et al.,
Respondents.
ON WRITS OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR AASA—THE SCHOOL
SUPERINTENDENTS ASSOCIATION ET AL.
AS AMICI CURIAE IN SUPPORT OF PETITIONERS
ARI HOLTZBLATT
Counsel of Record
ALLISON SCHULTZ
ADELA LILOLLARI
MEGHAN HOLLOWAY
WILMER CUTLER PICKERING
HALE AND DORR LLP
2100 Pennsylvania Ave., NW
Washington, DC 20037
(202) 663-6000
ari.holtzblatt@wilmerhale.com
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ......................................... iii
INTEREST OF AMICI CURIAE................................... 1
SUMMARY OF ARGUMENT ......................................... 6
BACKGROUND ................................................................. 9
A. The Universal Service Fund ............................... 9
B. The E-Rate Program .......................................... 10
ARGUMENT ..................................................................... 11
I.
THE UNIVERSAL SERVICE FUND PROGRAM
DOES NOT VIOLATE NON-DELEGATION
PRINCIPLES ................................................................. 11
A. Congress Set Forth Intelligible
Principles In Section 254 That Guide
The FCC In Administering The
Universal Service Fund ..................................... 11
B. The FCC Did Not Impermissibly SubDelegate Governmental Power To The
USAC .................................................................... 16
C. The Fifth Circuit’s Combination Theory
Of Delegation Is Wrong ..................................... 18
II. SCHOOLS AND LIBRARIES AROUND THE
COUNTRY RELY ON THE CONSTITUTIONAL
E-RATE PROGRAM ...................................................... 21
A. The FCC Has Implemented The ERate Program To Put Congress’s
Intelligible Principles Into Practice ................. 21
ii
TABLE OF CONTENTS—Continued
Page
1.
E-Rate
provides
discounted
internet services to schools and
libraries ......................................................... 22
2.
E-Rate subsidizes educational
services .......................................................... 24
3.
E-Rate benefits rural, low-income,
and tribal communities ................................ 26
B. Schools And Libraries Across The
Country Rely On The FCC’s Successful
Implementation Of The E-Rate
Program ................................................................ 30
CONCLUSION ................................................................. 33
iii
TABLE OF AUTHORITIES
CASES
Page(s)
A.L.A. Schechter Poultry Corp. v. United
States, 295 U.S. 495 (1935) ........................................ 12
Alenco Communications, Inc. v. FCC, 201 F.3d
608 (5th Cir. 2000)....................................................... 12
Consumer’s Research v. FCC, 109 F.4th 743
(2024) ............................................................................ 20
Consumers’ Research v. FCC, 67 F.4th 773 (6th
Cir. 2023) ................................................................ 12, 31
Consumers’ Research v. FCC, 88 F.4th 917
(11th Cir. 2023)............................................................ 31
Federal Power Commission v. Hope Natural
Gas Co., 320 U.S. 591 (1944)...................................... 14
Gundy v. United States, 588 U.S. 128 (2019) ................. 12
J.W. Hampton, Jr., & Co. v. United States, 276
U.S. 394 (1928) ........................................................ 6, 11
Janus v. American Federation of State, County,
& Municipal Employees, 585 U.S. 878
(2018) ............................................................................ 31
Lichter v. United States, 334 U.S. 742 (1948) ................ 14
National Broadcasting Co. v. United States, 319
U.S. 190 (1943) ............................................................ 15
New Orleans v. Dukes, 427 U.S. 297 (1976) ................... 30
Nordlinger v. Hahn, 505 U.S. 1 (1992) ........................... 30
Panama Refining Co. v. Ryan, 293 U.S. 388
(1935) ............................................................................ 12
iv
TABLE OF AUTHORITIES—Continued
Page
Rural Cellular Ass’n v. FCC, 588 F.3d 1095
(D.C. Cir. 2009) ........................................................... 12
Rural Cellular Ass’n v. FCC, 685 F.3d 1083
(D.C. Cir. 2012) ........................................................... 31
Skinner v. Mid-American Pipeline Co., 490
U.S. 212 (1989) .......................................................14-16
Sunshine Anthracite Coal Co. v. Adkins, 310
U.S. 381 (1940) ......................................... 7-8, 16, 18-19
Yakus v. United States, 321 U.S. 414 (1944) ................. 14
CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. Const. art. I, § 1..................................................... 6, 19
47 U.S.C.
§ 151 ................................................................................ 9
§ 254 ........................................ 7-16, 21-22, 24, 26, 29-30
Communications Act of 1934, Pub. L. No. 73-416,
48 Stat. 1064 .................................................................. 9
Telecommunications Act of 1996, Pub. L. 104104, 110 Stat. 56 ................................ 7, 9, 12, 17, 19, 31
47 C.F.R.
§ 54.502 ......................................................................... 10
§ 54.505 ......................................................................... 10
§ 54.702 ....................................................................17-18
§ 54.703 ......................................................................... 17
§ 54.704 ......................................................................... 17
§ 54.709 .................................................... 9-10, 17-18, 20
§ 54.719 ......................................................................... 17
§ 54.723 ......................................................................... 17
v
TABLE OF AUTHORITIES—Continued
Page
OTHER AUTHORITIES
2024 Section 706 Report, FCC 24-27, (Mar. 18,
2024), https://docs.fcc.gov/public/attachments/
FCC-24-27A1.pdf........................................................ 11
Association of Tribal Archives, Libraries, and
Museums, 2022 Sustainging and Advancing
Indigenious Cultures Report, Digital
Inclusion in Tribal Libraries, https://www.
atalm.org/resources/reports/atalm-reports/ ........... 29
Becker, Samantha, et al., Opportunity for All:
How the American Public Benefits from
Internet Access at U.S. Libraries, Inst. of
Museum & Library Servs. (Mar. 2010),
https://www.imls.gov/sites/default/files/pub
lications/documents/opportunityforall_0.pdf.......... 11
Bryne, Amelia & Marijke Visser, Keeping
Communities
Connection:
Library
Broadband Services During the COVID-19
Pandemic, American Library Ass’n (Mar.
2022), https://www.ala.org/sites/default/files/
advocacy/content/telecom/broadband/Keep
ing_Communities_Connected_030722.pdf .............. 27
Connect K-12, 2023 Report on School
Connectivity (2023), https://s3.amazonaws.
com/connected-nation/898e8ecb-8046-4850af4b-b89b12c1a4a1/Connect_K12_Connecti
vity_Report_2023_FINAL.pdf ................................ 27
vi
TABLE OF AUTHORITIES—Continued
Page
Connect K-12, Report on School Connectivity:
Funding Year 2021 (2022), https://www.
fundsforlearning.com/wp-content/uploads/
2022/01/Connect_K12_Connectivity_Report
_2021.pdf ...................................................................... 27
DeDios, Jeanette, Santa Fe Indian School is
Connecting Tribal Communities to
Broadband Access to Improve Native
Education, KUNM (Aug. 19, 2022), https://
www.kunm.org/local-news/2022-08-19/
santa-fe-indian-school-is-connecting-tribalcommunities-to-broadband-access-toimprove-native-education ......................................... 29
Education & Libraries Networks Coalition,
Comment Letter on Proposed Rule
Modernizing the E-Rate Program for
Schools and Libraries (2013) ..................................... 28
Education & Libraries Networks Coalition,
Comment Letter on Proposed Rule for
Universal
Service
Contribution
Methodology (2019) .............................................. 24, 27
EdLiNC E-Rate Success Stories & Anecdotes,
K12 Insight (Dec. 2024) ..................................23-24, 32
FCC, The Universal Service Fund: How It
Impacts the United States (Aug. 8, 2024),
https://docs.fcc.gov/public/attachments/DO
C-404602A1.pdf ..................................................... 23, 30
vii
TABLE OF AUTHORITIES—Continued
Page
FCC, Wireline Competition Bureau Announces
E-Rate and RHC Programs’ InflationBased Caps for Funding Year 2024, Public
Notice, DA 24-229 (Mar. 8, 2024),
https://docs.fcc.gov/public/attachments/DA24-229A1.pdf................................................................ 11
Funds for Learning, E-Rate Trends Report
(2024), https://www.fundsforlearning.com/
e-rate-data/trendsreport/ ...................................... 8, 22
Libraries and E-Rate, American Library Ass’n
(2018), https://www.ala.org/sites/default/files/
advocacy/content/telecom/erate/Libraries%
20and%20E-rate%20-%20January%202018%
20Brief.pdf .................................................................. 28
Navajo Nation Awarded $53 Million Through
E-Rate Program to Increase Internet Capacity for Chapter Houses and Head Start
Facilities, Division of Community Development Newsletter (Feb. 2021), https://www.
nndcd.org/wp-content/uploads/2021/03/DCDNewsletter-Feb-2021.pdf .......................................... 29
Peters, Savannah, FCC Proposes Rule Change
to Help Tribal Libraries With Broadband,
Marketplace (Oct. 25, 2021), https://www.
marketplace.org/2021/10/25/fcc-proposesrule-change-to-help-tribal-libraries-withbroadband/ ................................................................... 29
viii
TABLE OF AUTHORITIES—Continued
Page
Walker, Richard W., Louisiana District
Illustrates Power of E-Rate in Education,
EdScoop (Oct. 13, 2017), https://edscoop
.com/louisiana-district-illustrates-power-ofe-rate-in-education/ .................................................... 25
Westrope, Andrew, NSBA 2024: Kansas
District’s Private Fiber Network Serves
Budget, Equity, Government Technology
(Apr. 8, 2024), https://www.govtech.com/
education/k-12/nsba-2024-kansas-districtsprivate-fiber-network-serves-budgetequity ........................................................................... 23
INTEREST OF AMICI CURIAE1
This brief is submitted on behalf of 21 organizations
that represent U.S. schools, school districts, state educational agencies, and libraries, as well as the educators,
administrators, librarians, public servants, and others
working for these institutions. These entities rely on the
Schools and Libraries Universal Service Support Program (“the E-Rate Program”) funded by the Universal
Service Fund to achieve their educational missions. The
E-Rate Program subsidizes telecommunications and information services, such as broadband WiFi, to schools
and libraries, particularly in high-needs areas. The Fifth
Circuit’s decision would eliminate a critical funding
source for these vital programs. Because these organizations have extensive experience with the E-Rate Program and a deep interest in its survival, they submit this
brief to assist the Court with resolution of this case.
AASA, The School Superintendents Association is
the professional organization for more than 13,000 educational leaders in the United States and beyond. AASA
members range from chief executive officers, superintendents, and senior school administrators to cabinet
members, professors, and aspiring school-system leaders. As school-system leaders, AASA members set the
pace for academic achievement. They help shape policy,
oversee its implementation, and represent school districts to the public at large.
The American Federation of School Administrators
(“AFSA”) is the exclusive national labor union for
1
No counsel for a party authored this brief in whole or in part,
and no entity or person, other than amici curiae, their members, and
their counsel, made a monetary contribution intended to fund the
preparation or submission of this brief.
2
administrators, professionals, and supervisors advocating for excellence and equity in schools, workplaces, and
communities. AFSA members support educational reforms that put students first and include school administrators in the discussion and implementation.
The American Federation of Teachers (“AFT”) is a
union of over 1.8 million professionals that champions
fairness; democracy; economic opportunity; and highquality public education, healthcare and public services
for students, families and communities. AFT is committed to advancing these principles through community
engagement, organizing, collective bargaining, political
activism, and the work of its members.
The American Library Association (“ALA”) is a
nonprofit educational association with over 49,000 members. ALA is the oldest and largest library association
in the world, providing leadership for the development,
promotion and improvement of library and information
services and the profession of librarianship to enhance
learning and ensure informational access. ALA advocates for policies that ensure access to electronic-information resources as a means of upholding the public’s
right to a free and open information society.
The Association of Educational Service Agencies
(“AESA”) strengthens regional education service agencies (“ESAs”) nationwide by advocating for impactful
policies, providing professional development, and fostering collaboration through networks and research. Committed to equity and innovation, AESA supports ESAs
as indispensable partners in shaping an inclusive and dynamic education system.
The Association of School Business Officials International (“ASBO International”) promotes the highest
standards of school business management, professional
3
growth, and the effective use of educational resources.
ASBO members are school finance decision-makers who
manage budgeting, purchasing, facility maintenance,
technology, transportation, and other areas of education
administration and operations.
The Consortium for School Networking, a non-profit
professional association for K-12 EdTech leaders, is
driven to equip current and aspiring K-12 education
technology leaders, their teams, and school districts with
the community, knowledge, and professional development needed to cultivate engaging learning environments.
The Consortium of State School Boards Associations
is a non-partisan, national alliance representing 25 state
associations—compromised of 6,700 school boards that
serve nearly 24 million students—and is dedicated to
sharing resources and information to support and
strengthen state school boards associations as they
serve their local school districts and board members.
The Council of Chief State School Officers is the nonpartisan, nonprofit organization of public officials who
head departments of elementary and secondary education in the states, the District of Columbia, the Department of Defense Education Activity, the Bureau of Indian Education, and five U.S. extra-state jurisdictions.
The Council of the Great City Schools is a coalition
of 78 of the nation’s largest urban public school systems
and is the only national organization exclusively representing the needs of urban public schools. The Council
promotes urban education through research, instruction, management, technology, legislation, communications, and other special projects.
4
The National Association for Pupil Transportation
is the leading trade association in the student transportation industry. Its members include public and private
student transportation service providers as well as the
companies that provide valuable products and services
to support safe school transportation.
The National Association of Elementary School
Principals (“NAESP”) is a professional organization
serving elementary and middle school principals and
other education leaders throughout the United States
and abroad. NAESP’s mission is to lead in the advocacy
and support for elementary and middle-level principals
and other education leaders in their commitment for all
children.
The National Association of Federally Impacted
Schools represents approximately 1,100 federally impacted public school districts that together educate more
than eight million students. Federally impacted school
districts are those located on or near nontaxable Federal
property—including military installations; Indian Trust,
Treaty and Alaska Native Claims Settlement Act lands;
Federal low-income housing facilities; and national
parks, national laboratories and other Federal buildings
and property.
The National Association of Independent Schools
(“NAIS”) is a nonprofit membership association that
provides services to more than 2,000 schools and associations of schools in the United States and abroad. NAIS
is the largest association of independent schools—
schools that are self-determining in mission and program
and are governed by independent boards.
The National Association of Secondary School Principals (“NASSP”) is the leading association for middle
level and high school principals, assistant principals, and
5
other school leaders across the United States and beyond. NASSP includes more than 16,000 school leaders,
30,000 advisers, and 1 million students in our leadership
programs.
The National Catholic Educational Association
(“NCEA”) is a private professional education association
working with Catholic educators to support ongoing
faith formation and the teaching mission of the Catholic
Church. NCEA membership includes nearly 140,000 educators serving 1.6 million students in Catholic schools.
The National Education Association (“NEA”), the
nation’s largest professional employee organization, is
committed to advancing the cause of public education at
every level of education—from pre-school to university
graduate programs. NEA has affiliate organizations in
every state and in more than 14,000 communities across
the United States.
The National School Attorneys Association
(“NSAA”) is a non-profit membership organization of attorneys who advocate on behalf of elementary and secondary public-school districts across the United States.
NSAA’s approximately 900 members in 37 states regularly advise public school districts on regulatory issues
affecting their operations.
The National Rural Education Association
(“NREA”) is a membership organization consisting of rural school administrators, teachers, district board members, State and Regional Educational Agencies, Educational Service Agencies, researchers, business and industry representatives, and others interested in maintaining
the vitality of rural school systems across the country.
NREA is committed to increasing educational equity and
opportunity for rural students while highlighting the
many strengths of rural schools and communities.
6
The National School Boards Association (“NSBA”) is
a nonprofit organization ensuring that each student everywhere has access to excellent and equitable public education governed by high-performing school board leaders
and supported by the community. NSBA has resolved
that Congress and the FCC should close the education
technology gap, commonly called “The Homework Gap,”
for children in rural and low-income communities who
lack access to or cannot afford out-of-school technology.
SETDA is the principal association representing
U.S. state and territorial educational technology and
digital learning leaders. Through a broad array of programs and advocacy, SETDA builds member capacity
and engages partners to empower the education community in leveraging technology for learning, teaching, and
school operations.
SUMMARY OF ARGUMENT
The Fifth Circuit’s unprecedented decision invalidating the universal service fee would jeopardize Congress’s longstanding mission to provide telecommunications services to all Americans. Rural, poor, and underserved communities across the United States have depended for decades on programs funded by the universal
service fee for access to affordable, reliable telecommunication services, including high-speed internet services.
The Fifth Circuit’s decision would dismantle these vital
programs.
Article I prohibits Congress from delegating the
“legislative Powers” granted to it by the Constitution.
U.S. Const. art. I, § 1. But Congress may authorize executive agencies to exercise substantial “discretion” in
implementing and enforcing the laws that Congress enacts. J.W. Hampton, Jr., & Co. v. United States, 276 U.S.
7
394, 406 (1928). In carrying out those laws, agencies may
also rely on assistance from private actors, so long as the
actors remain subordinate to and under the agencies’ authority and supervision. See Sunshine Anthracite Coal
Co. v. Adkins, 310 U.S. 381, 399 (1940).
The universal service fee comports with these principles. In the Telecommunications Act of 1996, Congress
established multiple intelligible principles guiding the
Federal Communications Commission (“FCC” or “the
Commission”) in assessing the fee and administering the
Universal Service Fund (“the Fund”). The Act first defines what services should be universally provided, including those “essential to education, public health, or
public safety” or “subscribed to by a … majority of residential customers.” 47 U.S.C. § 254(c)(1). It then directs
the Commission to focus on providing quality and affordable telecommunications for populations that lack reliable access—those in “rural, insular, and high cost areas.”
Id. § 254(b)(3). It provides a mechanism for reaching
these areas by requiring that services be provided to
central access points—schools, libraries, and healthcare
facilities. Id. § 254(b)(6), (h). And it mandates that universal service contributions be “equitable and nondiscriminatory,” id. § 254(d), and “sufficient to achieve the
purposes” of Act, id. § 254(e). In short, the Act dictates
the who, what, where, and how of universal service—
more than enough to satisfy this Court’s nondelegation
precedent.
The FCC in turn created the Universal Service Administrative Company (“USAC”) to help it calculate and
collect universal service fees and distribute funds.
USAC performs these routine, administrative tasks under the FCC’s authority and supervision and without exercising any independent substantive power.
8
The universal service program is directly analogous
to the scheme that this Court held constitutional in Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940).
The statute in that case authorized the National Bituminous Coal Commission to set minimum coal prices based
on proposals from boards of private coal producers. The
statute did not violate the public nondelegation doctrine
because it specified “wholly adequate” “criteria” to
guide the agency in setting prices. Id. at 398. And it did
not violate the private nondelegation doctrine because
the agency maintained “authority and surveillance” over
the boards. The same is true here. Id. at 399.
Affirming the Fifth Circuit’s contrary conclusion
would devastate schools and libraries and the students
and communities they serve. It would undermine Congress’s purpose in enacting Section 254, which was, in
part, to ensure that all schools and libraries have affordable access to broadband internet. In just the last two
years, over one hundred thousand schools and libraries
benefited from universal service programs, including
many in rural, low-income and tribal communities
throughout the country. A recent survey showed that
over 90% of schools and libraries consider these programs a “vital” resource, without which schools and libraries would struggle to pay for essential broadband.
See Funds for Learning, E-Rate Trends Report, at 12
(2024). Striking down the funding mechanism for these
programs would deprive the tens of millions of students
and adults who rely on these programs access to necessary internet services, unraveling the benefits Congress
intended the program to provide.
9
BACKGROUND
A. The Universal Service Fund
The pursuit of universal service—that is, nationwide
access to telecommunications services at affordable
rates—has been a core tenet of telecommunications regulation for decades. The FCC was created in 1934 with
the aim of enabling universal telephone, telegraph, and
radio service. See Communications Act of 1934, Pub. L.
No. 73-416, § 1, 48 Stat. 1064, 1064 (codified at 47 U.S.C.
§ 151). As technology evolved, so did the FCC’s mandate. In 1996, Congress expanded the concept of universal service to include high-speed internet and other advanced communications technologies. See Telecommunications Act of 1996, Pub. L. 104-104 § 254, 110 Stat. 56,
71-75 (codified at 47 U.S.C. § 254).
The Telecommunications Act of 1996 tasks the FCC
with ensuring that quality advanced telecommunications services are available at affordable rates throughout the country, particularly in low-income, rural, tribal,
and high-cost areas. 47 U.S.C. § 254(b)(2)-(3). The Act
further directs the FCC to make sure that schools, libraries, and rural healthcare facilities have access to advanced communications services at competitive rates.
Id. § 254(b)(6), (h).
To fund this mandate, the Act requires the FCC to
impose a fee on interstate telecommunications carriers
“on an equitable and nondiscriminatory basis,” 47 U.S.C.
§ 254(d), that is “sufficient to achieve” the statute’s “purposes,” id. § 254(e). To do so, each quarter, the FCC determines a “contribution factor” used to calculate each
carrier’s contribution. 47 C.F.R. § 54.709(a)(2). To arrive at this “contribution factor,” FCC works with
USAC, which prepares estimates of the expected demand for universal support programs and the costs of
10
administering those programs. See id. § 54.709(a)(3).
The FCC uses these estimates to set the contribution
factor. Id.
These contributions are paid into the Universal Service Fund and, in turn, fund four main programs: (1) the
High Cost Program, which supports the cost of network
deployment and maintenance in rural areas; (2) the LowIncome Program, which makes service affordable for
low-income households; (3) the Rural Health Care Program, which supports communications service to rural
healthcare providers; and (4) the E-Rate Program,
which helps offset the cost of communications service to
schools and libraries.
B. The E-Rate Program
The schools and libraries that amici represent rely
heavily on the E-Rate Program, which subsidizes highspeed internet access and other telecommunications services in schools (including public, private, and charter
schools), school districts, and libraries across the country.
Section 254(h)—the legislative anchor for the ERate Program—states that telecommunication carriers
shall, upon request, “provide [universal] services to elementary schools, secondary schools, and libraries for educational purposes at rates less than the amounts
charged for similar services to other parties.” 47 U.S.C.
§ 254(h)(1)(B). The E-Rate Program implements this
statutory requirement by providing schools and libraries discounts on eligible services and equipment upon
successful completion of an application process. See 47
C.F.R. § 54.502. Educational institutions can reduce the
cost of services by 20 to 90%, depending on the entity’s
“level of poverty” and whether it is in a rural or urban
area. See id. § 54.505(b)(1)-(3), (c). Each year, the
11
program provides discounts up to an annual cap that the
FCC establishes. The cap is currently set at $4.94 billion. See FCC, Wireline Competition Bureau Announces E-Rate and RHC Programs’ Inflation-Based
Caps for Funding Year 2024, Public Notice, DA 24-229,
at 2 (Mar. 8, 2024).
The E-Rate Program has had great success in its
twenty-seven years. Prior to E-Rate, only 28% of libraries had public internet access, while nearly 100% do today. See Becker, et al., , Opportunity for All: How the
American Public Benefits from Internet Access at U.S.
Libraries, Inst. of Museum & Library Servs., at 1 (Mar.
2010), https://www.imls.gov/sites/default/files/publications/documents/opportunityforall_0.pdf. Likewise, before the program was created, only 14% of public-school
instructional classrooms were connected to the internet;
as of 2024, 99% of school districts nationwide provide internet access at the connectivity level of 100 megabits
per second per 1,000 students and staff. See 2024 Section
706 Report, FCC 24-27, ¶¶ 131-132 (Mar. 18, 2024),
https://docs.fcc.gov/public/attachments/FCC-24-27A1.pdf.
ARGUMENT
I.
THE UNIVERSAL SERVICE FUND PROGRAM DOES NOT VIOLATE NON-DELEGATION PRINCIPLES
A. Congress Set Forth Intelligible Principles In
Section 254 That Guide The FCC In Administering The Universal Service Fund
Although Congress may not delegate legislative
powers to the Executive Branch, it may authorize agencies to exercise substantial “discretion” in executing and
enforcing the laws Congress enacts. J.W. Hampton, Jr.,
& Co. v. United States, 276 U.S. 394, 406 (1928). A grant
of agency discretion is lawful so long as Congress “‘lay[s]
12
down by legislative act an intelligible principle’” to guide
the agency. Gundy v. United States, 588 U.S. 128, 135
(2019).
“Only twice in this country’s history … [has the
Court] found a delegation excessive.” Gundy, 588 U.S.
at 146. And in those two cases, “‘Congress had failed to
articulate any policy or standard’ to confine discretion.”
Id.; see A.L.A. Schechter Poultry Corp. v. United States,
295 U.S. 495, 541 (1935); Panama Refining Co. v. Ryan,
293 U.S. 388, 430 (1935).
The Telecommunications Act of 1996 delineates
clear and intelligible principles for how the universal
service fee should be collected and how the programs it
pays for are to be administered.
First, the Act prescribes how the FCC should set
the fee that carriers contribute. Carriers must make
“equitable and nondiscriminatory” contributions, 47
U.S.C. § 254(b)(4), that are “sufficient to achieve” the
Act’s “purposes,” id. § 254(e). This sufficiency requirement restricts contributions to the amount necessary to
achieve the statutorily listed universal service principles
discussed below. See Alenco Commc’ns, Inc. v. FCC,
201 F.3d 608, 620 (5th Cir. 2000) (“[E]xcessive funding
may itself violate the sufficiency requirements of the
Act.”). The affordability principle also constrains the
contribution from becoming “so large it actually makes
telecommunications services less ‘affordable’” for other
consumers who indirectly subsidize universal service.
Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1103 (D.C.
Cir. 2009) (citation omitted). Finally, the requirement
that contributions be “‘equitable and nondiscriminatory’” “prevents case-by-case contribution amounts and
equalizes the obligation on carriers.” Consumers’ Research v. FCC, 67 F.4th 773, 794 (6th Cir. 2023).
13
Regarding administration of the universal service
programs, the Act first requires the FCC to “base policies for the preservation and advancement of universal
service” on six comprehensive principles. Quality telecommunication services should be: (1) “available at just,
reasonable, and affordable rates”; (2) provided “in all regions of the Nation”; (3) accessible to consumers in all
regions, including “low-income consumers and those in
rural, insular, and high cost areas,” at reasonably comparable rates and quality as those services “provided in
urban areas”; (4) funded in “an equitable and nondiscriminatory” manner by telecommunication service carriers;
(5) funded by “Federal and State mechanisms”; and (6)
available to “[e]lementary and secondary schools and
classrooms, health care providers, and libraries.” 47
U.S.C. § 254(b)(1)-(6). The FCC must also consider
“[s]uch other principles” it determines “are necessary
and appropriate for the protection of the public interest,
convenience, and necessity and are consistent with this
chapter.” Id. § 254(b)(7).
Second, the Act further specifies what services the
FCC may fund. The FCC must consider the extent to
which supported telecommunication services: (1) “are
essential to education, public health, or public safety”;
(2) have “been subscribed to by a substantial majority of
residential customers”; (3) “are being deployed in public
telecommunications networks by telecommunications
carriers”; and (4) “are consistent with the public interest, convenience, and necessity.” 47 U.S.C. § 254(c).
Third, the Act provides detailed guidance for funding services in places of acute need. In particular, Section 254(h), which serves as the statutory authorization
to the E-Rate Program, states: “All telecommunications
carriers serving a geographic area shall, upon a bona fide
request for any of its services …, provide such services
14
to elementary schools, secondary schools, and libraries
for educational purposes at rates less than the amounts
charged for similar services to other parties.” 47 U.S.C.
§ 254(h)(1)(B). The provision constrains the FCC’s discretion by requiring that approved discounts be “appropriate and necessary to ensure affordable access to and
use of such services by such entities.” Id. Section 254
also requires funding telecommunication services to rural healthcare providers at “reasonably comparable …
rates” to those located in urban areas when “necessary
for the provision of health care services in a State.” Id.
§ 254(h)(1)(A).
Together, these provisions establish comprehensive
guidance about the who, what, where, and how of the
FCC’s universal service mandate. These are more than
sufficient “standards guiding [the FCC’s] actions such
that a court could ascertain whether the will of Congress
has been obeyed.” Skinner v. Mid-Am. Pipeline Co., 490
U.S. 212, 218 (1989). Indeed, Congress has defined the
scope of the FCC’s discretion with much greater specificity than other statutes the Court has found constitutional in the past. See, e.g., Lichter v. United States, 334
U.S. 742, 778-786 (1948) (upholding delegation of authority of War Department to recover “excessive profits”
earned on military contracts); Yakus v. United States,
321 U.S. 414, 420 (1944) (upholding delegation of authority to the Price Administrator to fix prices of commodities that “will be generally fair and equitable and will effectuate [Congress’s] purposes”); Federal Power
Comm’n v. Hope Natural Gas Co., 320 U.S. 591, 600-601
(1944) (upholding delegation to Federal Power Commission to determine just and reasonable rates).
The Fifth Circuit nonetheless believed that Congress failed to “meaningfully limit” the FCC because the
Act authorizes the FCC to also adopt “‘other principles’”
15
beyond those listed. Pet. App. 28a (quoting 47 U.S.C.
§ 254(b)(7)). But the FCC adopted no such additional
principles in the order at issue here. Moreover, the
FCC’s authority to adopt other principles is itself constrained: Additional principles must be “consistent
with” the Act, 47 U.S.C. § 254(b)(7)—which means they
must comport with the limits set forth above. And they
must be “necessary and appropriate for the protection of
the public interest, convenience, and necessity.” Id.
This Court found an identical statutory standard to be
sufficiently intelligible to guide the FCC’s discretion in
licensing radio broadcasting in National Broadcasting
Co. v. United States, 319 U.S. 190, 214-215 (1943) (upholding Section 303 of the Communications Act of 1934,
which provided that “the Commission from time to time,
as public convenience, interest, or necessity requires,
shall … ‘[p]rescribe the nature of the services to be rendered by … licensed stations”). If that language alone
satisfies non-delegation principles, then it necessarily
does so here, where Congress further cabined the FCC’s
authority through a comprehensive set of other statutory principles and constraints.
The Fifth Circuit and Respondents are likewise
wrong to suggest a more demanding non-delegation test
applies here because the Act “implicates the taxing
power.” Pet. App. 41a n.13. In Skinner, the Court rejected the “application of a different and stricter nondelegation doctrine in cases where Congress delegates
discretionary authority to the Executive under its taxing power.” 490 U.S. at 222-223. Respondents attempt
to distinguish Skinner on the ground that Congress had
capped the aggregate amount of fees the Secretary of
Transportation could collect from pipeline operators,
whereas Congress here set no cap. But the unanimous
court in Skinner did not hinge its holding on the fee cap.
16
Rather, the Court “ha[d] no doubt that” Congress supplied intelligible principles because of the “multiple restrictions” placed on the Secretary’s discretion. Id. at
220. Here too, Congress has placed analogous restrictions that constrain and guide the FCC’s discretion
in assessing fees and administering the Fund. Among
other restrictions, the FCC must assess fees for the statutory purpose of attaining “universal service,” 47 U.S.C.
§ 254(b); it must predictably assess fees in an “equitable
and nondiscriminatory” manner from “[a]ll providers of
telecommunications services,” id. § 254(b)(4), prohibiting case-by-case assessments; it must use money from
the Fund to provide access to telecommunications services to certain groups of consumers—in particular,
“low-income consumers and those in rural, insular, and
high cost areas,” id. § 254(b)(3); and it must achieve this
access by providing funding for such services to eligible
schools, libraries, and healthcare providers, id.
§ 254(b)(6). This is all that the non-delegation doctrine
requires.
B. The FCC Did Not Impermissibly Sub-Delegate
Governmental Power To The USAC
A government agency may rely on private entities
for assistance in carrying out its administrative functions without violating the private nondelegation doctrine provided that the entity “function[s] subordinately” to the agency, which retains ultimate “authority
and surveillance over the activities” of the private entity. Sunshine Anthracite, 310 U.S. at 399. Because that
is true of USAC, the FCC’s reliance on it for administrative assistance does not constitute impermissible private
delegation.
The FCC created and supervises USAC. The FCC
dictates the USAC’s form and function.
FCC
17
regulations establish that USAC has a 20-member board
of directors, which must represent a variety of stakeholders—including service providers, schools, libraries,
low-income consumers, and tribal communities. 47
C.F.R. § 54.703(b). And the FCC chairperson selects
each board director and USAC’s chief executive officer.
Id. §§ 54.703(c)(3), 54.704(b). FCC regulations also require that USAC carry out certain technical tasks for
the administration of universal service programs. For
example, USAC is “responsible for billing contributors,
collecting contributions to the universal service support
mechanisms, and disbursing universal service support
funds,” as well as “maintain[ing] books of account,” and
“create[ing] and maintain[ing] a website … on which applications for services will be posted.” Id. § 54.702(b),
(e), (f).
The FCC exercises ultimate authority over USAC.
USAC “may not make policy,” “interpret unclear provisions of the statute or rules,” or otherwise “interpret the
intent of Congress.” 47 C.F.R. § 54.702(c). USAC must
act in accordance with FCC regulations. When the Telecommunications Act or FCC rules are “unclear” or “do
not address a particular situation,” USAC cannot act independently but must instead “seek guidance from the
[FCC].” Id. Any party aggrieved by USAC’s actions
can also challenge USAC proposals directly to the FCC,
subject to its de novo review. Id. §§ 54.719, 54.723.
FCC regulations also dictate USAC’s limited role in
calculating the contribution amount. Contributions to
the Fund are based on a contributor’s projected “enduser telecommunications revenues, and on a contribution factor.” 47 C.F.R. § 54.709(a). The contribution factor is “determined by the [FCC].” Id. § 54.709(a)(2).
USAC merely provides the FCC with cost and demand
projections used as inputs in FCC’s determination.
18
USAC “must submit its projections” and “the basis for
those projections” each quarter to the FCC. Id.
§ 54.709(a)(3). And the projections “must be approved
by the [FCC] before they are used to calculate the quarterly contribution factor and individual contributions.”
Id. § 54.709(a)(3). Thus, any discretion the USAC exercises in helping set the contribution amount must ultimately be reviewed and approved by the FCC.
The FCC also has interim checks to oversee USAC’s
day-to-day operations. Among other things, FCC regulations require USAC to submit quarterly reports to the
FCC on the disbursement of money from the Universal
Service Fund, 47 C.F.R. § 54.702(h), and provide the
FCC with “full access to the data collected pursuant to
the administration of the universal service support programs,” id. § 54.702(j). Additionally, USAC must file an
annual report with the FCC and Congress detailing its
“operations, activities, and accomplishments” and its
“administrative action intended to prevent waste, fraud,
and abuse,” id. § 54.702(g).
The FCC’s reliance on USAC for technical assistance in administering the Fund is not impermissible
private delegation because the FCC exercises ultimate
“authority and surveillance” over it. Sunshine Anthracite, 310 U.S. at 399. “Since law-making is not entrusted
to the [USAC], the statutory scheme is unquestionably
valid.” Id.
C. The Fifth Circuit’s Combination Theory Of
Delegation Is Wrong
The Fifth Circuit did not hold that Congress impermissibly “delegated legislative power to [the] FCC” or
that FCC impermissibly “delegate[ed] government
power to private entities.” Pet. App. 19a, 43a. It expressly declined to “resolve either question.” Id. at 64a.
19
Nevertheless, the Fifth Circuit concluded that “the combination” of the FCC’s and USAC’s constitutional authorizations “violates the Legislative Vesting Clause in
Article I, § 1.” Id. It reasoned that the Telecommunications Act’s “double delegation” was unprecedented in
history and incompatible with our constitutional structure. But it is the Fifth Circuit’s novel “combination”
theory of delegation that is unprecedented and inconsistent with decades of this Court’s precedent and the
principles underlying the nondelegation doctrine.
First, the Fifth Circuit’s novel framework contradicts Supreme Court precedent. See Pet. App. 116a
(Higginson, J., dissenting). In Sunshine Anthracite, the
Court evaluated the constitutionality of the Bituminous
Coal Conservation Act of 1935, which involved Congress’s authorization of the National Bituminous Coal
Commission to set minimum coal prices. 310 U.S. at 387388. As specified by the Act, the Commission relied on
“boards” of private coal producers to “propose minimum
prices.” Id. at 388. These proposals could be “approved,
disapproved, or modified by the Commission” as a basis
for setting the minimum price. Id. Challengers in that
case argued that the statutory scheme violated both the
public and private non-delegation doctrines. The Court
rejected both challenges. First, it held that Congress
had established an intelligible standard that was “wholly
adequate for carrying out the general policy and purpose
of the Act.” Id. at 398. Next, it held that Congress had
not impermissibly delegated its authority to private industry because the private boards “function subordinately to the Commission” and are under its “authority
and surveillance.” Id. at 399. In rejecting these challenges, the Court applied familiar standards for analyzing the Act’s public and private delegation. The Court
did not instruct that a different framework should apply
20
to analyze this so-called “double delegation”—which the
Fifth Circuit claims to be a historical anomaly.
The Fifth Circuit attempted to distinguish Sunshine
Anthracite on spurious grounds. It claimed that unlike
the private boards, which had only the power to recommend minimum coal prices, USAC de facto decides the
USF contribution amount independent of FCC approval.
See Consumer’s Research, 109 F.4th at 780. That ignores FCC regulations dictating that the “the Commission” determines the contribution factor, 47 C.F.R.
§ 54.709(a)(2) (emphasis added), and requiring the FCC
to approve USAC’s projections before using them to calculate contributions, id. § 54.709(a)(3). The statutory
scheme in Sunshine Anthracite is thus identical to the
one in this case, involving the same purported “double
delegation” the Fifth Circuit erroneously held to be unconstitutional.
Second, the Fifth Circuit’s new test is not needed to
address the concern that “double delegation” undermines democratic accountability; that concern is already
policed (as it was in Sunshine Anthracite) by evaluating
whether Congress violated the public and private nondelegation doctrines—questions the Fifth Circuit refused to resolve. Here, under the private non-delegation
doctrine, the FCC exercises ultimate control over
USAC and has final say over the universal service fee.
Pursuant to the public non-delegation doctrine, the
FCC, in turn, is required to implement Congress’s policy
agenda through the clear and straightforward standards
Congress supplies by statute. Thus, regardless of
whether the public is interacting with USAC or the
FCC, the buck ultimately stops with a politically accountable actor.
21
Relatedly, the Fifth Circuit was concerned with double-layered delegation because “governmental responsibilities are carried out by private entities with a legal
obligation not to serve the public but rather to reap profits from it.” Pet. App. 77a. With respect to USAC, this
contention is flat out wrong. USAC is a non-profit corporation whose sole function is to help administer universal service programs. Thus, USAC cannot reap any
financial benefit from its administrative responsibilities.
Moreover, as discussed, USAC is at all times subordinate to the FCC, subject to its surveillance and final review. As such, the FCC—not USAC—is the body that
carries out governmental responsibilities.
The Fifth Circuit’s refusal to adhere to precedent
and to apply existing private and public non-delegation
doctrines led it astray. Congress is permitted to authorize the FCC to implement statutory directives within
the bounds of discernable principles. The FCC is also
permitted to use USAC, an entity under its ultimate
control and surveillance, to help administer universal
service programs. Combining these two constitutional
authorizations does not render the universal service fee
unconstitutional.
II. SCHOOLS AND LIBRARIES AROUND THE COUNTRY RELY
ON THE CONSTITUTIONAL E-RATE PROGRAM
A. The FCC Has Implemented The E-Rate Program To Put Congress’s Intelligible Principles
Into Practice
The E-Rate Program’s success in bringing affordable internet access to schools and libraries around the
country shows that the principles articulated in Section
254 are not only intelligible but have been put into practice. Consistent with Section 254’s instructions, the ERate Program provides advanced telecommunications
22
services (1) at a discount to schools and libraries (2) for
educational purposes (3) in a way that has particularly
benefited low-income, rural, and tribal communities.
The fact that the FCC has administered the program to
achieve precisely the objectives set forth by Congress
shows that Section 254 is not “a hollow shell” that the
FCC can arbitrarily fill, Pet. App. 40a, but instead articulates a coherent set of priorities for the agency to implement in the name of universal service.
1. E-Rate provides discounted internet services to schools and libraries
Section 254 instructs that “policies for the preservation and advancement of universal service” should ensure that “[e]lementary and secondary schools and classrooms … and libraries” “have access to advanced telecommunications services” “at rates less than the
amounts charged for similar services to other parties.”
47 U.S.C. § 254(b)(6), (h)(1)(B). The E-Rate Program
does just that. The program provides a mechanism by
which schools and libraries can acquire the equipment
necessary for high-speed internet access at a reduced
price.
For many public schools around the country, the discounted rates available through the E-Rate Program
have become the primary means through which the
schools can upgrade their IT infrastructure to provide
advanced services. This year, the E-Rate Program provided approximately $3.26 billion in discounts, with
schools paying only $970 million on services acquired
through the program. See Funds for Learning, E-rate
Trends Report, at 8-9 (2024). Approximately 106,000
schools and 12,597 libraries received over $7 billion in
support from the E-Rate Program over the last two
years, and over 50 million students benefited from
23
subsidized broadband services. See FCC, The Universal
Service Fund: How It Impacts the United States (Aug.
8, 2024), https://docs.fcc.gov/public/attachments/DOC404602A1.pdf. In a survey conducted by the Education
& Libraries Networks Coalition (“EdLiNC”) following
the Fifth Circuit’s decision, hundreds of schools from all
parts of the country explained how E-Rate’s discounts
were essential to their provision of high-speed internet,
and how high-speed internet is essential to their ability
to provide a modern-day education.2
Lawrence Public Schools in eastern Kansas is one
school district that has benefited from E-Rate’s discounts.3 The district previously paid roughly $200,000
per year for broadband access, which was unsustainable.
Through E-Rate, the district was able to build a private
fiber network at an 80% discount that was faster and
more affordable. 4
The E-Rate Program has proved particularly important to smaller and parochial schools, which often
lack the scale needed to afford the technology that supports e-learning today. For example, in New Jersey, the
Associate Superintendent for the Archdiocese of Newark has stated that “most of the inner-city schools in the
Catholic Urban Schools Partnership basically did not
have internet access until we were able to leverage E2
EdLiNC E-Rate Success Stories & Anecdotes, K12 Insight
(Dec. 2024) (“2024 EdLiNC survey”). Available from the author
upon request.
3
See Westrope, Kansas District’s Private Fiber Network
Serves Budget, Equity, Government Technology (Apr. 8, 2024),
https://www.govtech.com/education/k-12/nsba-2024-kansas-districts-private-fiber-network-serves-budget-equity.
4
Id.
24
Rate funds to build out their infrastructure with new
wiring and new routers.”5 With that internet access,
students were able to benefit from in-class technology,
including Chromebooks received from a foundation unusable before the E-Rate-funded improvements.6
2. E-Rate subsidizes educational services
Section 254 instructs that the FCC, in determining
what services to provide “universally,” “shall consider
the extent to which such telecommunications services …
are essential to education, public health, or public
safety.” 47 U.S.C. § 254(c)(1)(A). Consistent with this
command, the E-Rate Program has increased access to
high-speed, broadband internet, which has become essential to all aspects of a functioning school.
Most classes today have some classroom component
that occurs online. Mathematics and reading units employ online tools for assessing student progress and
needs. Many classes use online textbooks that are less
expensive and more up to date. And some classes are
entirely online. In Stanton County school district in rural Kansas, for example, math and science classes are
taught online due to a shortage of teachers.7 In order for
any of these online tools or resources to be used in the
classroom, students need to be able to access reliable,
high-speed internet, which E-Rate facilitates.
Testing, as well, has largely moved online. But to
administer such testing schools need to have a 1:1
5
Education & Libraries Networks Coalition (“EdLiNC”),
Comment Letter on Proposed Rule for Universal Service Contribution Methodology, at 5 (2019) (“EdLiNC 2019 Comment Letter”).
6
7
Id.
2024 EdLiNC survey.
25
network that can support a device for every student. In
many school systems, such as the Lafayette Parish
School System in Louisiana, the development of such a
network has become possible only because of the discounts available through the E-Rate Program. That
school district used E-Rate to upgrade its network so
that all students could use it at once, without which the
school could not reliably administer online testing.8
The broadband networks that E-Rate subsidizes
also form the backbone of school security systems.
Badging access systems, security cameras, visitor management systems, weapons detection systems, and VoIP
systems (which allow calls to be placed from anywhere
where there is an internet connection) require internet
access.
School administration also requires broadband internet. Many of the day-to-day back-office processes,
like enrollment, attendance, paying bills and payroll, all
depend on online platforms. And schools rely on digital
tools to communicate with parents and students and to
provide teacher performance reviews. Teacher training
and professional development have increasingly moved
online to save on travel costs and to avoid having to hire
increasingly hard-to-find substitute teachers. Finally, in
the event of emergencies and severe weather, schools
depend on internet access to communicate with the community and use virtual learning to avoid loss of instructional time.
In the 2024 EdLiNC survey, hundreds of schools
and school districts from every area of the country
8
Walker, Louisiana District illustrates Power of E-Rate in
Education, EdScoop (Oct. 13, 2017), https://edscoop.com/louisianadistrict-illustrates-power-of-e-rate-in-education/.
26
emphasized that without broadband internet, their
schools would cease to function as they do today. Put
simply, reliable and affordable broadband access is “essential to education,” and for many schools, school districts, and libraries, it is accessible only because of the
E-Rate Program.
3. E-Rate benefits rural, low-income, and
tribal communities
Section 254 specifies that universal service programs should benefit “[c]onsumers in all regions of the
Nation, including low-income consumers and those in rural, insular, and high cost areas,” such that all consumers
“have access to telecommunications and information services … that are reasonably comparable to those services provided in urban areas.” 47 U.S.C. § 254(b)(3).
Consistent with that direction, the FCC has administered the E-Rate Program to deliver much-needed, affordable high-speed internet services to low-income, rural, and tribal communities.
a. Low-Income Communities: The E-Rate Program tailors the discounts it provides based on schools’
and libraries’ level of need. E-Rate discounts range from
20 to 90% depending on the applicant’s poverty level
(based on the share of students eligible for free or reduced-price lunch). For these communities, the E-Rate
Program plays an important role in providing discounts
to cash-strapped schools to make investments in connectivity that would otherwise be out of reach.
For example, Mississippi’s Columbus Municipal
School District, a high poverty district, was able to build
a district-wide wireless network that its Director of IT
Systems said the district “could never have afforded otherwise.” The Director of IT Systems further remarked
that “[i]t would have been impossible to provide
27
sufficient network infrastructure to support 21st Century learning for [our] students without the funding that
E-Rate has provided.”9
b. Rural Communities: Rural schools and libraries
face compounding challenges. Not only do these schools
and libraries lack the same concentrated funding base as
their urban counterparts, but advanced telecommunications services are more expensive, or unavailable, in rural areas. The average cost of wholesale internet access
in major U.S. metropolitan markets is less than $0.09 per
megabit. See Connect K-12, Report on School Connectivity: Funding Year 2021, at 9 (2022). But 746 school
districts in rural areas nationwide pay more than $10.00
per megabit for internet access. Id. The Texas panhandle, Michigan’s Upper Peninsula, and certain pockets of
the Upper Great Plains and Mountain West are among
the most costly areas for connectivity today. See Connect K-12, 2023 Report on School Connectivity, at 10
(2023). Moreover, approximately 30% of Americans live
in rural areas where high-speed, fixed internet services
are unavailable. See Bryne & Visser, Keeping Communities Connected: Library Broadband Services During
the COVID-19 Pandemic, at 3, American Library Ass’n
(Mar. 2022).
For these high-cost and rural areas, the E-Rate Program provides crucial discounts. In Nebraska’s Johnson-Brock Public Schools, the E-Rate Program enabled
the district to upgrade the school’s fiber-optic backbone
to create a 1:1 system in its fourth- to twelfth-grade
classrooms.10 Similarly, the rural Triton School Corporation in Bourbon, Indiana, over half of whose students
9
10
EdLiNC 2019 Comment Letter, at 3.
EdLiNC 2019 Comment Letter, at 4-5.
28
are eligible for a free or reduced-price lunch, has used ERate discounts to equip all classrooms with the technological infrastructure necessary to support overhead
projectors, smart boards, and laptop computers.11 The
school now has a network capable of supporting a laptop
for every student in its middle and high school grades.
According to its Superintendent, these E-Rate funds are
crucial because “[i]n some areas of our district, families
cannot access the Internet because it’s not available
where their homes are located.”
Libraries also use E-Rate discounts to provide crucial access to the internet for students and families in
high-cost, rural areas. In Gregory, South Dakota, many
students lack WiFi at home and thus rely on the library’s
broadband to complete homework assignments.12 And
in times of crisis or emergency, libraries’ E-Rate-subsidized broadband networks are crucial resources for rural
communities where internet access is not affordable or
universally available.
c. Tribal Communities: Tribal schools, which often suffer from the same challenges facing low-income
and rural schools, have benefited substantially from the
E-Rate Program. In New Mexico, for example, pueblos
used E-Rate discounts to build fiber optic networks that
provide essential broadband to tribal schools and
11
EdLiNC, Comment Letter on Proposed Rule Modernizing
the E-Rate Program for Schools and Libraries, at 8 (2013).
12
Libraries and E-Rate, American Library Ass’n, at 1 (2018),
https://www.ala.org/sites/default/files/advocacy/content/telecom/er
ate/Libraries%20and%20E-rate%20-%20January%202018%20Brief.
pdf.
29
libraries. It was “a game changer” according to the
Chief Technology Director of one of the benefitting
schools.13
Tribal libraries also recently have benefitted from
the E-Rate Program, following a 2018 amendment to
Section 254(h)(4) making them eligible for Program discounts. Already, their inclusion in the program has
helped close significant connectivity disparities. In 2021,
10% of tribal libraries reported being unable to provide
access to the internet, while virtually all non-tribal, public libraries have offered internet access since the mid2000s. See Association of Tribal Archives, Libraries, and
Museums, 2022 Sustaining and Advancing Indigenous
Cultures Report, Digital Inclusion in Tribal Libraries,
at 22. Now, to take one example, the Navajo Nation is
using E-Rate discounts to expand access to broadband
in its over one hundred “chapter houses” that function
like libraries.14 With $53 million in E-Rate subsidies, the
Navajo Nation is installing over 600 miles of fiber optic
lines, providing broadband to over 100 educational entities.15
13
DeDios, Santa Fe Indian School is Connecting Tribal Communities to Broadband Access to Improve Native Education,
KUNM (Aug. 25, 2022), https://www.kunm.org/local-news/2022-0819/santa-fe-indian-school-is-connecting-tribal-communities-to-broad
band-access-to-improve-native-education.
14
See Peters, FCC Proposes Rule Change to Help Tribal Libraries With Broadband, Marketplace (Oct. 21, 2021), https://
www.marketplace.org/2021/10/25/fcc-proposes-rule-change-tohelp-tribal-libraries-with-broadband/.
15
Navajo Nation Awarded $53 Million Through E-Rate Program to Increase Internet Capacity for Chapter Houses and Head
Start Facilities, Division of Community Development Newsletter,
at 8 (Feb. 2021), https://www.nndcd.org/wp-content/uploads/2021/
03/DCD-Newsletter-Feb-2021.pdf.
30
*
*
*
For the countless schools and libraries around the
country that benefit from the E-Rate Program, the concept of universal service is not amorphous; it is a concrete objective that these communities strive to achieve
with help from programs like E-Rate. Because of the
discounted rates the E-Rate Program provides, see 47
U.S.C. § 254(b)(6), (h)(1)(B), elementary and secondary
schools and libraries, especially those in rural and lowincome areas, see id. § 254(b)(3), have provided advanced
telecommunications technologies that are essential for a
modern education, see id. § 254(c)(1)(A), and done so
without unduly straining their limited budgets, see id.
§ 254(b)(1).
B. Schools And Libraries Across The Country
Rely On The FCC’s Successful Implementation
Of The E-Rate Program
“A reliance interest is created when an individual
justifiably acts under the assumption that an existing legal condition will persist;” reliance interests are “implicated when the government provides some benefit and
then acts to eliminate the benefit.” Nordlinger v. Hahn,
505 U.S. 1, 38 (1992) (Stevens, J., dissenting) (citing New
Orleans v. Dukes, 427 U.S. 297 (1976)). Here, schools
and libraries have a bona fide reliance interest on the
Universal Service Fund, and the E-Rate Program in
particular.
For over a quarter century, the E-Rate Program
has helped schools and libraries around the country provide high-speed internet. In the past two years alone,
the E-Rate Program provided over one hundred thousand schools and libraries with over $7 billion in subsidies, benefiting millions of students and adults. See
FCC, The Universal Service Fund: How It Impacts the
31
United States, supra. The 2024 EdLiNC survey illustrates the breadth and depth of this reliance: hundreds
of schools and school districts from every part of the
country rely in some way on E-Rate’s subsidies, and
those schools and districts expressed concern that without that support, the educational services they provide
to students would deteriorate.
In finding the Universal Service Fund unconstitutional, the Fifth Circuit upset centuries-old Supreme
Court precedent establishing that far less specific and
tailored statutory schemes satisfy the non-delegation
doctrine. Based on this status quo, no court—including
the Sixth, Eleventh, and D.C. Circuits—has ever held
that the Universal Service Fund is unconstitutional. See
Consumers’ Research v. FCC, 88 F.4th 917, 928 (11th
Cir. 2023); Consumers’ Research, 67 F.4th at 787; Rural
Cellular Ass’n v. FCC, 685 F.3d 1083, 1091 (D.C. Cir.
2012). In fact, until the past couple years, the constitutionality of the universal service fee was not seriously
challenged. Schools and libraries have thus relied on the
E-Rate Program for decades—investing in infrastructure on the assumption that the program would not abruptly disappear.
When considering whether to upset this established
legal landscape—and the telecommunications services it
has enabled—the Court should consider the legitimate
reliance interests that tens of thousands of schools and
libraries have in the continuation of the E-Rate Program. See Janus v. American Fed’n of State, Cnty., &
Mun. Emps., 585 U.S. 878, 926 (2018) (“[R]eliance provides a strong reason for adhering to established law.”).
In particular, the Court should consider the budgetary
effects that invalidating the program would have on the
very communities Congress clearly intended to benefit
in the Telecommunications Act.
32
In EdLiNC’s 2024 survey, numerous respondents
noted that the cloud-based computing systems that the
E-Rate Program supports are crucial to every aspect of
a modern-day school: teaching classes, administering
testing, efficiently managing schools, and training teachers and staff. Without E-Rate discounts to support
cloud-based computing, schools will be forced to make
difficult cuts. As the Director of Technology for the Bullhead City School District in Arizona put it: “Without ERate funding,” “[w]e would need to choose between hiring teachers or providing internet to our schools.”16 The
Director of Technology for General George Patton
School District 133 in Riverdale, Illinois poignantly
warned in the same survey that if the E-Rate Program
were to disappear, “[t]he district would cut costs across
the board in order to keep up the network …, limiting
the futures of our students in unpredictable ways.”17
Before eliminating the benefit that millions of students, thousands of libraries, and countless communities
receive from the programs funded by the universal service fee, the Court should consider the harm that such a
decision would have across the country and the expectations it would upset. Communities have come to rely on
the availability of discounts from the E-Rate Program to
ensure that all have access to affordable and reliable internet. The Court should consider the harm that would
follow from eliminating that funding before breaking
with its own non-delegation precedent to hold the universal service fee unconstitutional.
16
17
2024 EdLiNC survey, at 192.
Id. at 196.
33
CONCLUSION
For the foregoing reasons, the decision below should
be reversed.
Respectfully submitted.
ARI HOLTZBLATT
Counsel of Record
ALLISON SCHULTZ
ADELA LILOLLARI
MEGHAN HOLLOWAY
WILMER CUTLER PICKERING
HALE AND DORR LLP
2100 Pennsylvania Ave., NW
Washington, DC 20037
(202) 663-6000
ari.holtzblatt@wilmerhale.com
JANUARY 2025
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.