Today, TechFreedom filed an amicus brief urging the U.S. Court of Appeals for the Fifth Circuit to hold that the Federal Communications Commission’s “private delegation” of its authority to a non-governmental entity violates the Constitution.

Congress delegated to the FCC the task of running the Universal Service Fund, a program that pays for advanced telecommunications and broadband services for underserved institutions, remote areas, and the poor. The FCC in turn “subdelegated” most of its authority to run the USF to a private entity, the Universal Service Administration Company.

“USAC is the Founders’ fear of unaccountable government come to life,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “Congress has a constitutional duty to legislate—it cannot hand the legislative power to others. When it handed the FCC open-ended power to set the size, scope, and cost of the USF, therefore, Congress was already at risk of creating a delegation problem. But the FCC then handed most of that power to a private entity—a further delegation that was clearly unconstitutional. This ‘private delegation’ created a form of ‘legislation without representation.’ Private lawmaking goes against everything the Founders set out to do in fighting a revolution and crafting the Constitution.”

“As far as the Constitution is concerned, USAC might as well make its regulatory decisions by drawing its budget proposals from a hat,” Barthold continued. “The amount of regulatory discretion that Congress may confer on agencies, consistent with its duty to legislate, depends in part on how many procedural safeguards it places on those agencies’ use of such discretion. To count for anything, though, the procedural safeguards must come from Congress. The FCC has imposed a few flimsy procedural requirements on USAC; but these are meaningless. For purposes of a nondelegation analysis, procedural requirements concocted by an agency count for nothing.”


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