Consumers' Research v. FCC, No. 22-60008 (5th Cir. 2023)
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Congress enacted Sec. 254 of the Telecommunications Act of 1996, which established the Universal Service Fund (USF) and entrusted its administration to the Federal Communications Commission (FCC). The FCC relies on a private entity, the Universal Service Administrative Company (“USAC”), to aid it in its administration of the USF. USAC proposals are approved by the FCC either expressly or after fourteen days of agency inaction.
USAC submitted its 2022 first quarter projections to the FCC on November 2, 2021. The FCC published these projections for notice andcomment in accordance with the Administrative Procedure Act. On November 19, 2021, Petitioners submitted comments challenging the constitutionality of the USF and the FCC’s reliance on USAC. The FCC approved USAC’s proposal on December 27, 2021. In response, Petitioners filed this petition on January 5, 2022.
On appeal, Petitioners assert that: (1) the Hobbs Act is not a jurisdictional bar to their constitutional claims; (2) Section 254 violates the nondelegation doctrine because Congress failed to supply the FCC with an intelligible principle; and (3) the FCC’s relationship with USAC violates the private nondelegation doctrine because the FCC does not adequately subordinate USAC in its administration of the USF.
Finding that the Hobbs Act did not bar Petitioners' claims, the Fifth Circuit reached and rejected the claims on their merits. The Fifth Circuit held that Sec. 254 does not violate the non-delegation doctrine or the private non-delegation doctrine.
The court issued a subsequent related opinion or order on June 29, 2023.
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