On June 10, 2024, the U.S. Supreme Court denied a petition for a writ of certiorari in Consumers’ Research et al. v. Federal Communications Commission et al. In its petition, the advocacy group Consumers’ Research, along with a small carrier and a five individuals, sought the Supreme Court’s review of the constitutionality of the Federal Universal Service Fund (USF) program. The Supreme Court did not explain its reasoning in its denial.
Consumers’ Research and the other petitioners based their request for review in part on what they described as a potential circuit split. The Sixth Circuit and Eleventh Circuit Courts of Appeal rejected their arguments. A Fifth Circuit panel also rejected their arguments, but the en banc Fifth Circuit is reviewing the panel’s decision.
The petitioners “raise[d] core separation-of-powers challenges to the revenue-raising mechanism” of the USF program. They argued that “the statute delegates Congress’s revenue-raising and taxing powers to an unelected agency bureaucracy without clear and meaningful limitations.” They also argued that the “FCC has subsequently delegated USF operations to a private corporation, the Universal Service Administrative Company (“USAC”)” without “a pretense of review by the Commissioners.”
On appeal to the Supreme Court, the FCC argued in response the USF does not violate nondelegation doctrine by empowering the FCC to collect universal service contributions or violate the Constitution by assigning certain administration functions of the program to USAC. The FCC also pointed out the absence of an existing circuit split while the en banc Fifth Circuit is reviewing the case.