The Advocate December 2024: Eliminating E-Rate- What’s In Store in 2025
December 02, 2024
As we head into the new year, new Congress and new administration, we are also bracing for a significant case impacting education that will be before the Supreme Court in its 2025 term. And its all about E-Rate.
Background: In July, the 5th Circuit Court handed down its decision in the case Consumers Research et. al vs. the FCC, a case where the central question was whether 47 U.S.C. § 254 violates the nondelegation doctrine by imposing no limit on the Federal Communications Commission’s power to raise revenue for the Universal Service Fund; and whether the FCC violated the private nondelegation doctrine by transferring its revenue-raising power to a private company run by industry interest groups. Read early coverage on the case here.
Quick Summary: In its decision, the 5th Circuit ruled that the universal service fund mechanism is unconstitutional because it violates something called the nondelegation doctrine. Basically, the ruling says that Congress delegated tax authority to the FCC and the FCC delegated that tax authority to a private entity and the force of those two delegations was an impermissible delegation of legislative authority. The 5th circuit covers Louisiana, Mississippi and Texas.
So what now?: While AASA historically works only on E-Rate (the internet discount program that supports broadband access in schools and libraries), this decision is broader, and inclusive of all four programs funded via the Universal Service Fund (USF), meaning the ramifications will be much farther reaching than just internet access for schools. The four USF programs are:
- High Cost Support Mechanism: Provides support to certain qualifying telephone companies that serve high cost areas, thereby making phone service affordable for the residents of these regions.
- Low Income Support Mechanism: (Sometimes called Lifeline) Assists low-income customers by helping to pay for monthly telephone charges as well as connection charges to initiate telephone service.
- Rural Health Care Support Mechanism: Allows rural health care providers to pay rates for telecommunications services similar to those of their urban counterparts, making telehealth services affordable.
- Schools and Libraries Support Mechanism: (E-Rate) Provides telecommunication services (e.g., local and long-distance calling, high-speed lines), Internet access, and internal connections (the equipment to deliver these services) to eligible schools and libraries.
Looking ahead, the 5th circuit decision was appealed to the Supreme Court, who granted cert in late November. This means they will hear the case during their 2025 term. Program implementation for all of USF—including E-Rate—will continue uninterrupted until a decision is handed down. When an appeal is being reviewed, the decision in question is halted against any further action (like enforcement or implementation); this halt is called a ‘legal stay for court appeal’ or ‘stay’, and just means that E-Rate and other USF programs can continue uninterrupted until the final decision is handed down.
AASA wanted to see the Supreme Court pick up the case. While we are not necessarily optimistic that the Court will hand down a favorable decision, the reality remains that fractured or disrupted implementation of USF programs would be catastrophically chaotic; the programs are so central to all aspects of day to day life—especially in our neediest communities—that consistency is critical. AASA cochairs the EdLiNC coalition, the group that represents all E-Rate beneficiaries. The coalition has retained counsel to file an amicus brief—a ‘friend of the court’ brief—that can be filed in complement to the arguments being made by the court. Stay tuned to our advocacy communications for our efforts to both collect stories and to coordinate hill outreach to protect and defend E-Rate.
You can check out more on E-Rate by listening to our recent PEP Talk Podcast episode here.
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