Today, the Fifth U.S. Circuit Court of Appeals reversed its prior panel decision affirming the constitutionality of the Universal Service Fund, finding that the Federal Communications Commission’s actions in advancing our nation’s universal service goals are unconstitutional.
The Universal Service Fund helps ensure that all Americans, regardless of their geographic location or economic status, have access to essential telecommunications services. By subsidizing services in rural and low-income areas, the USF helps bridge the digital divide, fostering greater social and economic inclusion. It also supports critical institutions like schools, libraries, and healthcare facilities, enabling them to provide vital services to their communities.
Public Knowledge filed an amicus brief with the Fifth Circuit in the case, Consumers’ Research v. FCC, identifying the flaws in the petitioner’s arguments, demonstrating that Congress had offered the FCC “intelligible principles” for advancing universal service objectives and that the Universal Service Administrative Company (USAC), a federally-chartered nonprofit corporation overseen by the FCC, was properly delegated authority to oversee the ministerial responsibilities of administering USF programs. Public Knowledge also filed an amicus brief in a case brought by the same petitioners, making the same arguments, with the D.C. Circuit Court of Appeals.
The following can be attributed to John Bergmayer, Legal Director at Public Knowledge:
“Following the end of the Affordable Connectivity Program, today’s Fifth Circuit ruling that the FCC’s long-standing mechanism for funding the Universal Service Program is unconstitutional eliminates the last remaining federal mechanism to make broadband affordable for all Americans. Happily, this decision will likely be reversed. Riddled with errors from its very first paragraph, the opinion contradicts Supreme Court precedent, and breaks with rulings from the D.C., Sixth, and Eleventh Circuits. This is in keeping with many recent Fifth Circuit rulings that disregard settled law and, where necessary, the facts, to achieve results desired by fringe, anti-government groups who want to use the courts to impose their unpopular agenda on the American people.
“The majority’s broad and novel holdings on delegation have implications going far beyond the FCC and Universal Service. As one of the two persuasive dissents states, the court’s opinion ‘offers no test for determining when something that is neither an unconstitutional delegation of legislative power from Congress to an agency nor an unconstitutional delegation of government power to a private entity becomes unconstitutional, leaving the political branches powerless to govern.’
“Congress determined that Americans deserve access to high-quality, affordable communications services, and the USF has been administered for decades on a bipartisan basis to achieve this goal. Today, a panel of activists in robes has decided that they know better.”
Members of the media may contact Communications Director Shiva Stella with inquiries, interview requests, or to join the Public Knowledge press list at shiva@publicknowledge.org or 405-249-9435.