Today, in Federal Communications Commission v. Consumers’ Research, the Supreme Court upheld the constitutionality of the universal service provisions in Section 254 of the Communications Act. The Court rejected arguments that Congress delegated too much authority to the FCC, and that the FCC further delegated too much authority to its universal service administrator, the Universal Service Administrative Company (“USAC”).
Justice Kagan wrote the opinion for a 6-3 Court. The Court applied the existing “intelligible principle” test for Congressional delegations of authority to agencies. It held that Congress’s delegation to the FCC to establish a universal service program satisfied that test because Section 254 provides “determinate standards for operating the universal-service program.” The majority also held that the FCC’s reliance on USAC was permissible because USAC is “broadly subordinate” to the FCC, which is “the final authority.”
Justice Kavanaugh both joined the majority and concurred, noting that while there are “difficult questions about how to apply the intelligible principle test to particular statutes,” he “agree[d] with how the Court has applied the test in this case.” Notably, while Justice Kavanaugh wrote that “Congressional delegations of policymaking authority to independent agencies raise significant Article II issues,” he agreed with the government’s statement at oral argument that the FCC is not formally an independent agency because the Commissioners do not enjoy statutory removal protections.
Justice Jackson concurred as well. She focused on the claim that the FCC’s delegation to USAC violated the “private nondelegation doctrine.” She noted her “skepticism that the private nondelegation doctrine—which purports to bar the Government from delegating authority to private actors—is a viable and independent doctrine in the first place,” but agreed that the Court had no reason to consider that argument because it was not raised by the parties.
Justice Gorsuch, joined by Justice Thomas and Justice Alito, dissented. He wrote that the power granted to the FCC was a “quintessential tax,” and that Congress impermissibly delegated to the Commission the authority to decide how much to collect.
The ruling means that the FCC can continue to administer the Universal Service Fund in its current form, absent changes by Congress.
The case was consolidated with Schools, Health & Libraries Broadband Coalition v. Consumers’ Research, No. 24-422. HWG’s Christopher Wright, Sean Lev, Jason Neal, Mohammad (Muji) Ali, and Amy Robinson successfully represented SHLB at both the certiorari stage and in merits briefing before the Supreme Court in arguing that Section 254 was constitutional.
