High-quality telecommunications is extremely important to rural communities. Rural telecom cooperatives are essential to providing those services, and USF is an important method of keeping those services affordable. So when a group challenged the constitutionality of the program, rural utility groups mobilized to defend the program — this time before the U.S. Supreme Court.
In a recent filing at the Supreme Court, NTCA — the Rural Broadband Association argued that the USF program and the FCC’s administration of the program are constitutional.
Section 254 does not delegate legislative power to the Executive; instead, Congress took the universal-service subsidy long implicit in monopoly rate regulation and made the subsidy—and Congress’ responsibility for it—explicit Congress left the implementation details to the Executive, but to a
lesser degree than under the prior regime. That legislative change was a win for both consumers and nondelegation principles and has made the promise of broadband a reality for tens of millions of Americans. Under both historical tradition and settled precedent, § 254 is entirely constitutional.The Executive’s implementation of that statutory scheme is equally constitutional. The FCC has not delegated its executive authority to a private actor; it has simply assigned ministerial tasks to a private entity that remains fully subordinate and subject to FCC oversight and control in the contribution-factor process, and whose actions have no legal effect unless and until the FCC determines and publishes the quarterly contribution factor. Respondents’ strained efforts to depict the Universal Service Administrative Company (“USAC”) as a rogue private lawmaker or executive with no meaningful federal oversight are belied by the record.
The combination of Congress’ constitutional action in enacting §254 and the FCC’s constitutional action in enlisting USAC to help administer it does not add up to a constitutional violation—which is while deregulating many aspects of the communications industry. presumably why respondents devote less than two pages of their 98-page brief to defending the Fifth Circuit’s “combination” theory, even though it was the sole basis for the judgment below. This is not a case where one branch has imposed multi-layered restrictions on another, and the Executive’s decision to enlist private help cannot convert Congress’ enactment of §254 into a delegation problem. This Court should reverse.
