In a closely monitored case, the U.S. Supreme Court ruled that that Universal Service Fund does not violate the nondelegation doctrine. In F.C.C. et al. v. Consumers Research et al., the petitioners requested the Court to rule that the USF funding program — managed by USAC and monitored and controlled by the FCC — violates the nondelegation doctrine. But the Court ruled that the system authorized by Congress was a permissible delegation of authority because Congress constrained that delegation by intelligible principles.
Read more:
- Just three months ago, the Court issued another opinion affecting the USF: False Claims Act Applies to E-Rate Reimbursement
- Read other USF posts:
Here’s a summary by the Court:
The universal-service contribution scheme does not violate the nondelegation doctrine.
(a) Article I of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” §1. Accompanying that assignment of power to Congress is a bar on its further delegation. At the same time, this Court has recognized that Congress may “seek[] assistance” from its coordinate branches and “vest[] discretion” in executive agencies to implement the laws it has enacted. J. W. Hampton, Jr., & Co. v. United States, 276 U. S. 394, 406. To distinguish between the permissible and the impermissible in this sphere, this Court asks whether Congress has set out an “intelligible principle” to guide what it has given the agency to do. Id., at 409. Under that test, Congress must make clear both “the general policy” the agency must pursue and “the boundaries of [its] delegated authority.” American Power & Light Co. v. SEC, 329 U. S. 90, 105.
(c) Under the usual intelligible-principle test, the universal-service contribution scheme clears the nondelegation bar. Section 254 directs the FCC to collect contributions that are “sufficient” to support universal-service programs. §§254(b)(5), (d), (e). The word “sufficient” sets both a floor and a ceiling—the FCC cannot raise less than what is adequate or necessary to finance its universal-service programs, but it also cannot raise more than that amount. And the “sufficiency” ceiling imposes a meaningful limit on the Commission, because Section 254also provides appropriate guidance about the nature and content of universal service. The statute makes clear whom the program is intended to serve: those in rural and other high-cost areas (with a special nod to rural hospitals), low-income consumers, and schools and libraries. See §§254(b)(3), (6), (h)(1). And it also defines the services those beneficiaries should receive. In order for the FCC to subsidize a service, the service must be subscribed to by a substantial majority of residential customers, available at affordable rates, and essential to education, public health, or safety. §§254(b)(1), (3), (c)(1)(A)–(B). Those conditions, each alone and together, provide the FCC with determinate standards for operating the universal-service program.
Consumers’ Research contends that the Act gives the FCC boundless authority, but the provisions it points to show nothing of the kind. It first argues that the Commission need not actually adhere to each of the criteria Section 254 uses to define universal service. Properly understood, however, those criteria are separately mandatory. Next, Consumers’ Research highlights Section 254(c)(1)’s description of universal service as an “evolving level of telecommunications services that the Commission shall establish periodically” in light of advances in technology. That provision, it says, enables the FCC to redefine universal service as it sees fit. But the permission Congress gave the FCC to fund different services over time does not strip the statute of standards and constraints. The Commission still may fund only essential, widely used, and affordable services, for the benefit of only designated recipients. Finally, Consumers’ Research maintains that the statutory provision enabling the FCC to articulate “[a]dditional principles” to guide its universal-service policies allows the agency to rewrite its own authority. §254(b)(7). But that is not so, because Section 254(b)(7)requires the added principles to be “consistent with” the rest of the statute. So they cannot change the statute’s other principles, much less its conditions on what subsidies can go toward and who can receive them. Pp. 19–30.
The full opinion is available here: F.C.C. et al. v. Consumers Research et al.
