Amicus Briefs
Consumers’ Research, et al. v. FCC, U.S.A.
CASE SUMMARY
The Federal Communications Commission administers the Universal Service Fund (USF), which provides telecommunications services to rural and impoverished areas of the United States as well as to schools, libraries, and healthcare providers. However, in the Telecommunications Act of 1996, Congress wrote an “evolving” and open-ended statute, leaving FCC to set its own policies and extract money from Americans to fund the USF. NCLA filed an amicus curiae brief in Consumers’ Research v. FCC calling for an end to this illegitimate arrangement, whereby Congress surrendered its exclusive constitutional power to tax and spend.
Through the Telecommunications Act, Congress authorized FCC to define and fund “universal” telecommunications and information services on an “evolving” basis “consistent with the public interest, convenience, and necessity” and in line with policies FCC itself could adopt. This vague standard has not provided an adequate “intelligible principle” to limit FCC’s delegation of legislative power under the Constitution’s Vesting Clause. As a result, FCC has exercised practically unlimited legislative and budgetary power in the USF context that Article I of the Constitution reserves for Congress alone.
A Fifth Circuit panel wrongly upheld the statute. Citing the same court’s May 2022 Jarkesy v. SEC ruling, the panel said the “nondelegation doctrine applies where Congress has provided ‘no guidance whatsoever.’” This misinterpretation of the decision in Jarkesy would have rendered the “intelligible principle” standard effectively meaningless.
In July 2024, the en banc Fifth Circuit found the “universal service” tax to be unconstitutional, a victory for NCLA.