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WASHINGTON—The Lawyers’ Committee for Civil Rights Under Law filed an amici brief with the U.S. Supreme Court on behalf of a diverse group of civil rights and nonprofit organizations defending the constitutionality of the FCC’s Universal Service Fund, a $4 billion subsidy program which supports broadband infrastructure and Internet access for underserved communities, schools, libraries, and health providers.

The Lawyers’ Committee submitted the brief with Access Now, Asian Americans Advancing Justice, Japanese American Citizens League, Leadership Conference on Civil and Human Rights, League of United Latin American Citizens (LULAC), National Action Network, National Coalition on Black Civic Participation, National Council of Negro Women, National Urban League, UnidosUS, and United Church of Christ Media Justice Ministry.

The now-consolidated cases before the U.S. Supreme Court are FCC v. Consumers Research, and Schools and Health & Libraries Broadband Coalition v. Consumers’ Research.

Gillian Cassell-Stiga, senior counsel with the Lawyers’ Committee for Civil Rights Under Law, said, “Internet access is a civil rights issue. Reliable and affordable high-speed broadband is necessary for full participation in modern society. And yet, millions of Americans do not have home internet access. This impacts access to health care, education, and work. People in lower-income or rural areas, and communities of color, are more likely to lack broadband service reflecting the legacy of underinvestment in these communities. Every person should have access to high-speed internet.”

A Fifth Circuit decision recently invalidated the decades-old regulatory structure of the Universal Service Fund (USF), declaring it unconstitutional under the dormant nondelegation clause of the constitution. The Court described a double-delegation of power, first, to the FCC in creating and supervising the USF, and then, to nonprofit administrator the Universal Service Administrative Company – which the Court held was unconstitutional even if each delegation separately was not. The Court emphasized its belief that USAC was only subject to “rubber stamp” oversight. Both the Sixth and Eleventh Circuits had previously rejected this argument, and in separating itself the Fifth Circuit sitting en banc fashioned a new test for the delegation of legislative power.

Excerpts from the amicus brief:

“The Universal Service Fund (“USF”) directs financial support and subsidies that reach low-income and rural communities of color, both directly and through support mechanisms for digital infrastructure. The USF High Cost program funds the expansion of rural broadband infrastructure. The USF E-Rate program connects entire communities by supporting access in schools and libraries—it has supported Internet access for over 54 million students. The USF Rural Health Care program enables health care services and telehealth to reach those in remote locations, supporting over 16,000 rural healthcare providers. Due to USF Lifeline program support, an additional 8.5 million subscribers can afford high-speed broadband.”

“Underinvestment in low-income communities of color has resulted in growing digital disparities. Black and Brown individuals today disproportionately lack affordable broadband service. Adoption of home broadband among white adults is approximately 80 percent, while adoption by Black and Hispanic adults is only 68 percent and 75 percent, respectively.[1] About 44 percent of Asian American, Native Hawaiian, and other Pacific Islanders surveyed are living “where high-speed internet [is] not available due to lack of infrastructure.”[2] People of color are less likely to own a home computer and are more dependent on smartphone technology exclusively.[3] Across the rural South, 38 percent of Black households still do not have home Internet.[4]

“Among households that do have Internet access, those in poorer areas have lower effective access speeds, in part because lower income households are more likely to be limited to outdated technologies like DSL.”[5]

“This creates circumstances “where wealthy broadband users are getting the benefits of cheaper and faster Internet access through fiber, and low-income broadband users are being left behind with more expensive slow access.”[6]

If the Fifth Circuit decision is upheld, efforts to close the digital divide will be jeopardized for years to come.

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[1] Risa Gelles-Watnick, Americans’ Use of Mobile Technology and Home Broadband, Pew Rsch. Ctr. 6 (Jan. 31, 2024).

[2] Digital Divide in the Asian American, Native Hawaiian, and Pacific Islander Communities, Asian Americans Advancing Justice | AAJC 1, 5 (May 21, 2024) (clarified).

[3] Id.; see also Sara Atske & Andrew Perrin, Home Broadband Adoption, Computer Ownership Vary by Race, Ethnicity in the U.S., Pew Rsch. Ctr. (July 16, 2021).

[4] Aaliyah Wright, What It’s Like Living with Limited Access to Internet in the Black Rural South, The Markup (Dec. 6, 2023).

[5] Roberto Gallardo & Brian Whitacre, The Real Digital Divide? Advertised vs. Actual Internet Speeds, Purdue Univ. Ctr. for Reg’l Dev. (Oct. 7, 2020); Shara Tibken, The Broadband Gap’s Dirty Secret: Redlining Still Exists in Digital Form, CNET (June 28, 2021);

[6] Ernesto Falcon, The FCC and States Must Ban Digital Redlining, Elec. Frontier Found. (Jan. 11, 2021).