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

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 expansive power to a private entity—a further delegation that was clearly unconstitutional. This ‘private delegation’ created a form of ‘legislation without representation.’” 

“The panel that heard this appeal erred in finding that the FCC ‘properly subordinates USAC,’” Barthold continued. “The panel found it dispositive that, in theory, the FCC could undo any decision made by USAC. But one cannot resolve the private delegation issue by looking solely at what the FCC is technically entitled to do. The panel failed to address the fact that the FCC subdelegated power to a private entity without Congress’s permission, or the fact that it does not actually engage in any genuine oversight of that entity.”

The case is Consumers’ Research v. FCC, No. 22-60008 (5th Cir.).


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