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FCC v. Consumers’ Research

In the Telecommunications Act of 1996, Congress directed the FCC to create programs aimed at ensuring affordable nationwide access to essential telecommunications services, and it directed that these programs should be funded by mandatory contributions from telecommunications providers. After the FCC announced the contribution rates for 2022, a conservative nonprofit and several other entities petitioned for review in the Fifth Circuit, contending that the Act’s universal-service provisions are unconstitutional. The petitioners argued that Congress impermissibly delegated legislative power to the executive branch by empowering the FCC to design the universal-service programs and determine the amount of providers’ contributions. After the en banc Fifth Circuit agreed and held that the Act unconstitutionally confers lawmaking authority on the FCC, the Supreme Court granted review.

Public Citizen filed an amicus brief urging the Supreme Court to reverse. The brief explains that the Constitution gives Congress flexibility to write broad legislative mandates and authorize executive agencies to determine how best to implement those mandates. Because the Act’s universal-service provisions supply intelligible principles to guide the executive, the brief explains, they satisfy the test that the Supreme Court has used for nearly a century to determine whether a statute impermissibly delegates legislative power. In addition, a contrary holding could imperil numerous other longstanding statutes that confer a comparable level of discretion on the executive in carrying out Congress’s policy directives.