12 States Appeal the FCC’s Lifeline Modernization Order

Twelve states have filed a petition for review with the U.S. Court of Appeals for the D.C. Circuit challenging the FCC’s decision in the Lifeline Modernization Order to create a new type of federal ETC for the provision of Lifeline-supported broadband services, and in the process, preempting state commissions’ authority to designate ETCs with respect to broadband services.  As discussed more fully in DWT’s client advisory, the FCC preempted state commissions from the ETC designation process for Lifeline Broadband Providers (“LBPs”) and established a streamlined FCC LBP ETC application process instead.

The petition for review claims that this part of the FCC’s Lifeline Modernization Order “exceeds the Commission’s jurisdiction or authority, violates the Communications Act of 1934 and the notice-and-comment requirements of the Administrative Procedure Act, and is arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.

The Attorney Generals for the State of Wisconsin, Arkansas, Idaho, Indiana, Michigan, Montana, Nebraska, South Dakota, Utah, and the public utility commissions of Connecticut, Mississippi and Vermont joined together to ask the Court to “hold unlawful, vacate, enjoin, and set aside this portion of the Order.”  The petition is similar to one filed by the National Association of Regulatory Utility Commissioners (“NARUC”).  As with the NARUC petition for review, DWT will provide an analysis of the arguments on appeal after the briefs have been filed.