What are the limits of Congress’ ability to delegate functions to an administrative agency? That’s the crux of current cases before the Fifth and Sixth Circuits.

The government's Universal Service Fund (USF) has spent hundreds of billions of dollars over 25 years supporting broadband and voice connectivity to high cost areas, schools, libraries, and healthcare programs, and to ensure communications are affordable. Those dollars have come from surcharges on every customer’s bill, which are sent to the FCC and ultimately to the FCC-created Universal Service Administrative Company (USAC). Over the years, an entire industry and section of the public have come to depend on this funding to support their telecommunications services.

That entire regime is being challenged in Consumers’ Research v. FCC, which calls into question the legality and legitimacy of the FCC’s ability to collect the funds and administer the program under the nondelegation doctrine. Specifically, Consumers’ Research alleges that the Communications Act unconstitutionally delegated Congress’s legislative and taxing power to the FCC, and the FCC in turn impermissibly delegated that power to USAC. With Whitman v. American Trucking’s admonition that the Constitution’s “text permits no delegation of those powers”—including the power to tax—has this entire program been illegal from the start?


The Federalist Society hosted an event featuring an all-star panel to explain all sides of the debate. All three panelists are directly involved in the case. Former FCC Commissioner Harold Furtchgott-Roth, who worked in Congress when the Telecom Act was enacted, explained his long-held skepticism that Congress intended the FCC to allow USF to function as a spending program of seemingly unlimited magnitude. Mike Romano, on the other hand, explained the necessity of the Fund not just to the actual recipients, but to ensure the network effects that come from having all Americans connected. Professor Robert Frieden, a long-time telecommunications scholar, argued for the value of finding a solution to revise the program without eliminating it completely. The panel was expertly led by moderator Arielle Roth, Legislative Counsel to Senator Roy Blunt, who spent years in USF policy as an advisor to FCC Commissioner O’Rielly. This is a don’t-miss debate on the constitutionality of this massive government program. 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].