Tri-County Telephone Association, Inc. v. e Federal Communications Commission, No. 20-1003 (D.C. Cir. 2021)Annotate this Case
Hurricanes Irma and Maria devastated Puerto Rico and the U.S. Virgin Islands (the Territories) in September 2017 and destroyed large portions of the Territories’ telecommunications networks. In response, the FCC issued three orders that provided subsidies from the Universal Service Fund to help rebuild those networks. TriCounty, a telecommunications provider that contributes to the Fund, challenged two orders under the Administrative Procedure Act (APA) and the Communications Act. Tri-County argued that in one order, the FCC bypassed notice and comment without good cause and failed to justify the amount and allocation of funds and that in both orders, the FCC departed from a previous policy without explanation and contravened the Communications Act.
The D.C. Circuit denied a petition for review, after finding that TriCounty had standing to challenge the orders, except with respect to the allocation of funds, from which it suffered no concrete harm. The Communications Act directs the FCC to make policies “for the preservation and advancement of universal service.” 47 U.S.C. 254(b). The FCC had previously used the Fund for disaster relief and its findings with respect to the Territories were reasonable. Under the APA, an agency may forgo notice and comment when it is “impracticable, unnecessary, or contrary to the public interest,” 5 U.S.C. 553(b)(B).