The National Association of Regulatory Utility Commissioners (“NARUC”) has filed a petition for review with the US Court of Appeals for the DC Circuit challenging the FCC’s decision in the Lifeline Modernization Order to preempt State commission authority to make ETC determinations for Lifeline Broadband Providers (“LBP”). As discussed more fully in DWT’s client advisory, the FCC preempted State commissions from the ETC designation process for LBPs and established a streamlined FCC LBP ETC application process instead.
NARUC’s petition claims that the FCC exceeded its authority by attempting to “’preempt’ not a State law or regulation,” but instead to “preempt” the section of the federal Telecommunications Act that gives primary ETC designation authority to the States. The petition also challenges the FCC’s related holding that the FCC has LPB ETC designation authority in “the absence of state authority,” calling this a “triumph of circular reasoning.” The deadline for interested parties to intervene is July 5.
The briefing schedule will not be issued until after the intervention deadline and preliminary filings and any motions have been made. DWT will provide an analysis of the arguments on appeal after the briefs have been filed.