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Next Steps in the Fight for Universal Service

As you likely have seen, last week a federal circuit court of appeals declared that the contribution mechanism that has funded essential Universal Service Fund (USF) programs for nearly 30 years is now unconstitutional. As our team has taken a preliminary look at the decision and considered potential impacts, I wanted to share some additional explanation and possible next steps for legislative, judicial and/or regulatory activities with you.

First, we know the court’s ruling is complicated and potentially confusing, and we all have a number of outstanding questions. There are some aspects of this that will need to be sorted out over the coming days and weeks. But I think a brief summary of our initial thoughts could be helpful. As you will recall, a group of petitioners has filed challenges in various federal circuit courts of appeals asserting that the USF contribution mechanism violates the U.S. Constitution by delegating authority to the FCC to collect such contributions and by enabling the further delegation for collection to a private entity, the Universal Service Administrative Co. (USAC). NTCA and other stakeholders intervened in these cases to help defend the constitutionality of the program, and the Sixth and Eleventh Circuit Courts of Appeals upheld the mechanism. A three-judge panel from the Fifth Circuit Court of Appeals also initially provided a favorable decision, but the majority of the Fifth Circuit voted last year to vacate that decision and to rehear the case. On July 24, by a 9-7 vote, the full Fifth Circuit characterized the USF contribution mechanism as a “tax” that in its view violates the Constitution through the combined "double-layered delegation" of authority to the FCC and USAC, and the court remanded the case to the FCC for further consideration.

NTCA has been an active participant in these cases as an intervenor, and as potential Supreme Court review and further FCC action on remand loom, we will remain engaged in every possible way. In the end, we believe the USF contribution framework is constitutional. In addition, because the case resulted in a remand and did not vacate altogether the FCC’s efforts to collect contributions, our hope is that the current system should continue to apply and govern without substantial disruption, pending further review. But we are mindful of the overhang of uncertainty here, and it’s important to be proactive in looking to remove or mitigate that uncertainty through all tools available. This includes: (1) putting up a vigorous defense of the mechanism in any further judicial proceedings; (2) working at the FCC through the remand to address the court's holding where possible; and (3) working with Congress on legislative text to head off further arguments that the delegation to the FCC itself is problematic. In short, we will leave no stone unturned in looking to minimize disruptions and to ensure that these important programs remain viable in sustaining universal service.

Given these new challenges—and the need for proactive engagement to address the uncertainty they create—it is truly more important than ever for you, our members, to engage with new enthusiasm with key broadband stakeholders and members of Congress who are back in their districts for the rest of the summer. You see, in a policymaking arena where there are so many voices battling for attention, the power of strong advocacy and grassroots engagement simply can’t be understated. It’s also one area where you and our entire membership really thrive as you speak with a united voice to showcase the importance of building and sustaining robust broadband infrastructure in rural America. If we want Congress to help put an end to the uncertainty surrounding these programs, that starts with you making sure that Congress understands the value of these programs and what it needs to do going forward.

That is why I talk so much about telling your story. (This is also one of the main tenets of our Smart Rural CommunitySM program, which equips participants with even more tools to talk about their successes). Put simply, no one knows your story better than you. Without your posts, photos, blogs or invitations to visit, there’s no way policymakers in Washington will know the incredible difference you are making in the lives of your neighbors, community members and local businesses—and what threats to the USF program would mean for the ongoing availability and affordability of critical communications for these communities.


There’s been a lot of effective advocacy storytelling from NTCA members lately. Jill Kuehny, CEO of KanOkla Networks (Caldwell, Kan.), and her team hosted Sen. Jerry Moran (R-Kan.) to see all they’re doing to connect their community. They also scheduled an event dedicated to addressing the digital divide and promoting digital equity in rural communities. Sen. Chuck Grassley (R-Iowa) met with representatives from Citizens Mutual Telephone Cooperative (Bloomfield, Iowa) to discuss the company’s work and the importance of supporting rural broadband. And I was thrilled to join NTCA Board Director Tonya Mayer, CEO and general manager of Hemingford Coop Telephone Co. and Mobius Communications Co. (Hemingford, Neb.), in a chat with Sen. Deb Fischer (R-Neb.) about all that’s being done to connect rural Nebraskans during the recent Women in Telecom Fly-In.

I was also excited to hear that six of our Smart Rural Community providers in Missouri hosted Fiber Field Day, an event designed to showcase the importance and endless benefits of fiber connectivity to community members and lawmakers. And it’s been a joy to see so many groundbreakings and ribbon cuttings as work to connect more communities continues.

I often feel like a proud family member when sharing how hard you are working to bring reliable, affordable high-speed broadband to the residents and businesses in your communities. I encourage all of you to continue to send those invitations and plan those events with your members of Congress while they are in recess. These visits are fun, they’re productive and they help ensure that folks return to Washington with a better understanding and appreciation of all that NTCA’s small providers do for their communities. We also hope to add more power to your collective stories by gathering additional data on the impact of high-cost support on your deployment plans and consumer costs, so please take the time to respond to our survey that will be coming out in the near future.

If you need assistance identifying an opportunity to engage or getting a download on NTCA’s latest policy priorities in preparation for meeting with members of Congress while they are home this summer and fall, contact our Government Affairs team. They prepared these advocacy tips and issue papers to help guide your conversations regarding issues ranging from tax reform to broadband mapping (note member login is required). Trust me, with this being an election year, these resources will really help keep our needs top-of-mind—and with the recent challenges to the viability of the USF mechanisms, it’s now more important than ever to lay the foundation for action by Congress.

We also continue to grow several programs tailored to your needs. I have been pleased to see robust participation in CyberShare: The Small Broadband Provider ISAC, which collects and disseminates cybersecurity threat information, indicators and mitigation strategies from a variety of public and private sources and facilitates communications among stakeholders. The Foundation for Rural Service, now in its 30th year, continues to create more opportunities for rural communities through scholarships, grants and innovative programs like the upcoming Congressional Broadband Tour. And the NTCA Rural Broadband PAC is also growing and continues to be a leading voice for policy issues important to our industry. Finally, we’ve seen a tremendous response to Operation IFAST, our recent coordination with the Guardian Group to encourage providers to raise awareness, support law enforcement and raise money to combat sex trafficking.

Before I close, I would like to strongly encourage you to continue thinking about your options when it comes to BEAD Program funding. Although we know that a lot of questions about BEAD remain, and while the uncertainty of the USF battles may affect your analysis, we also know that if you don’t go for the funding, someone else likely will. And, even if BEAD isn’t a good fit for your company’s plans and operations, don’t forget to look at your state’s digital inclusion funding. You’re doing the work anyway in educating consumers about the benefits of broadband!

Thanks for your membership and engagement. I hope you have a wonderful rest of the summer and that I will see you at the NTCA 2024 Fall Conference in Indianapolis later this year.