A panel of the U.S. Court of Appeals for the District of Columbia Circuit has rejected Consolidated Communications of California Co.’s (fka SureWest Telephone) challenge of the FCC’s denial of its waiver request of a universal service filing deadline. Consolidated argued that the FCC acted arbitrarily and violated the Eighth Amendment’s prohibition of excessive fines by its denial. In 2016, the FCC denied an application to review a Wireline Competition Bureau decision denying a waiver of the deadline for filing state certification of eligible telecommunications carrier status. Consolidated argued that because it had acquired SureWest in July 2012, changing its regulatory status from rate-of-return to price cap regulation, it was confused about its status and failed to provide the required state certification. The panel concluded that Consolidated failed to show special circumstances required for the FCC to grant a waiver, and that its mere confusion about its new regulatory status after the acquisition is insufficient to justify a waiver. The panel also rejected the Eighth Amendment argument finding it did not apply because the FCC did not extract a payment from Consolidated; rather, the subsidy program by its terms restricts eligibility to carriers who comply with the certification requirement.
