The American Library Association (ALA) has filed an amicus brief on the U.S. Supreme Court case, Federal Communications Commission, et al., Petitioners v. Consumers’ Research, et al., which stands to decide the fate of federal programs supporting broadband access for half of the nation’s public libraries. The brief affirms both the constitutionality and the value of the Universal Service Fund (USF) and the programs it administers—particularly the E-Rate program, which helps power broadband-enabled services and access in U.S. public libraries and schools.

In addition to the E-Rate program, USF implements the Connect America Fund for rural areas; Lifeline for low-income consumers, including initiatives to expand phone service for residents of Tribal lands; and Rural Health Care. USF and its programs are managed by the Federal Communications Commission (FCC).

“Universal service is part of our library ethos,” said Megan Janicki, deputy director of strategic initiatives at the ALA Public Policy and Advocacy (PPA) office in Washington, DC. “We pointed out in our brief a number of ways that libraries rely on E-Rate funds to provide critical communications to their communities. And it’s not just that libraries need these discounts—it’s that their communities need this vital access to high-speed internet for school, for work, for telehealth, for emergency response, for civic and basic communication.”

ALA’s brief, which now becomes part of the record that the Supreme Court will review, affirms that the USF is constitutional and uses stories from public libraries to amplify the nationwide impact of the E-Rate program. These narratives add context and perspective for the Court to raise questions and consider various angles.

ARGUING CONSTITUTIONALITY

The Telecommunications Act of 1996 expanded the basic principle of universal service—which states that all Americans should have access to communications services—to include increased access to both telecommunications and advanced services, such as high-speed internet, for all consumers at just, reasonable and affordable rates. Congress instructed the FCC to establish and maintain the USF and required telecommunications carriers to contribute quarterly based on their revenues. To manage and administer the funds, the FCC partners with the Universal Service Administrative Company (USAC), a private entity. USAC uses formulas provided by the FCC to calculate projected demand and contribution factors, submits proposals to the FCC for approval, and then uses the approved figures to determine contribution amounts.

At the time the Act was passed, only 44.4 percent of public libraries had internet access; by 2000, that number had grown to 95.7 percent, thanks largely to E-Rate. “The E-Rate program supports the broadband capacity that libraries need to deliver essential services to their communities, providing opportunities in education, employment, emergency communications, and entrepreneurship,” said ALA President Cindy Hohl. “E-Rate and the other three USF programs are critical to fulfilling ALA’s vision of broadband as a human right. The Court should not pull the plug on this powerful program.”

The case now before the Supreme Court started with a lawsuit brought against the FCC by Consumers’ Research, a conservative 501(c)(3) nonprofit organization that targets corporations that it considers to have a “progressive agenda”—particularly those that invest according to principles that prioritize ESG, or environmental, social, and corporate governance issues. Consumers’ Research’s stated goal is to take action against businesses that “are focusing more on serving woke politicians and not their consumers.” The organization has mounted campaigns against State Farm, BlackRock, Coca-Cola, Disney, and Target, among others. With its lawsuit against the FCC, Consumers’ Research has taken its crusade to the courts, turning from ad and social media campaigns aimed at large corporations to an attempt to take down needed federal resources for underserved communities.

In 2023, the organization filed suit against the FCC in the Fifth, Sixth, Eleventh, and District of Columbia Circuit Courts on behalf of telephone consumers. Its primary arguments were that Congress unconstitutionally delegated its legislative power to the FCC, and that the FCC improperly delegated its authority to USAC, a private, industry-controlled company, to manage the USF.

In each respective case, the courts upheld the constitutionality of the funding mechanism. However, Consumers’ Research appealed its Fifth Circuit loss, and with a July 2024 rehearing en banc (when all the judges of a court sit to hear a case), the U.S. Circuit Court of Appeals for the Fifth Circuit reversed the previous decision in a 9–7 decision, holding that USF’s funding mechanism is unconstitutional. In November, the U.S. Supreme Court agreed to pick up the case.

The current suit consolidates two cases—24-354 and 24-422—naming the FCC and the Schools, Health & Libraries Broadband Coalition (SHLB) as the parties defending USF. Some 26 organizations agreed to file amicus briefs—legal briefs submitted by a person or group that is not a party to a suit, but that has a strong interest or expertise in the matter—by January 16.

“We were really pleased to be able to put together a library-only brief, said Janicki. “We think that libraries have a unique perspective on the Universal Service Fund programs, and particularly E-Rate.” ALA is a founding and active member of both SHLB and the Education and Libraries Network Coalition (EdLiNC), which has also submitted an amicus brief highlighting the importance of the USF’s programs to libraries. Other organizations that have submitted briefs include the consumer rights advocacy group Public Citizen; the public interest group Public Knowledge; NCTA–The Internet & Television Association; National Federation of the Blind; WTA–Advocates for Rural Broadband; a bipartisan group of former FCC commissioners; and others.

“The ALA amicus brief was especially helpful to explain the enormous and positive impact of the E-Rate program on library patrons. The SHLB brief focused more on the legal arguments, while the ALA brief provided data and in-depth examples of the benefits,” said SHLB Executive Director John Windhausen. “Almost all libraries now provide internet access to their patrons at no charge, a far cry compared to 1996 when most libraries did not even have internet access for their own internal operations. In other words, the ALA brief explained how the E-Rate program has turned libraries into leaders of the Information Age.”

Consumers’ Research is expected to file any supporting material by mid-February, with oral arguments heard at the end of March. A decision will be forthcoming in June.

EDUCATION AND AWARENESS

“The thing we’re working on now is education and awareness on the congressional level, and at the state and local level as well, just to make sure people know how impactful these programs are and what it means if they disappeared overnight,” Janicki told LJ. Libraries can receive up to a 90 percent discount on their broadband through E-Rate, and—especially for small libraries operating on a tight budget—suddenly needing to pay for broadband connection at full rate “could be devastating.”

While ALA believes that USF’s process is fully constitutional, Janicki says, the next step will be to come up with solutions for long-term contribution reform to how the money is handled and administered. Much of the funding USF receives currently comes from a tax on landline phone bills—a source that continues to dwindle and skews heavily toward older Americans who haven’t given up their landlines for cellphones. “Is there a way to administer the funding through USAC, or through another way that would come into compliance, according to the courts? Are there ways to look at how the USAC board, which is an independent board, can work more closely with the FCC chair?” Several coalitions are currently working on suggestions, and ALA plans to put together a policy position to bring to members of Congress and the FCC to think through how the programs could be preserved and sustained in the long term, regardless of the court’s decision.

Most important, Janicki adds, is “to protect the fund, so that we can get to that point of thinking about sustainability and any reform that’s needed.”

ALA’s work in this lawsuit speaks to the ongoing—but increasingly important—need for libraries to be able to tell their stories and advocate their needs effectively. Janicki advises library workers to stay connected with their professional organizations in the field and other people working on like-minded issues. ALA’s E-Rate Task Force has coordinators from states across the country—Lauren Abner, a 2024 LJ Mover & Shaker, currently serves as vice-chair. A new ALA initiative, “Show Up for Our Libraries,” provides resources and a portal to share stories to help educate elected officials.

The Trump administration has already shown itself to be both a threat and a source of confusion for libraries, starting with the federal funding freeze announced and then rescinded at the end of January. PPA has been conducting monthly webinars about potential policy issues to expect with the new administration and will continue keep the library community informed. For those who aren’t ALA members, Janicki pointed to the Digital Inclusion Working Group, which is open for all library workers to exchange knowledge around digital equity work in all library contexts and holds a monthly Zoom meeting.

When in doubt, said Janicki, reach out to her at mjanicki [at] alawash.org. “I like telling people that I’m their ALA concierge,” she says. “You’ll reach a real person who can pass you to the right place.”