Conservative Groups Back Consumers' Research's Challenge of USF

Mainstream industry groups have lined up in opposition to Consumers’ Research (see 2501100057), as have former FCC commissioners as well as Democratic and Republican lawmakers (see 2501170046).

Advancing American Freedom (AAF), joined by other like-minded groups, compared Consumers’ Research’s bid to overturn USF to the American Revolution. “This case concerns whether Congress is empowered to ‘[alter] fundamentally the Forms of our government,’ … by authorizing the same tyrannical insulation of government power from the People that the revolutionary generation sacrificed so much to overcome and the drafters of the Constitution worked so hard to thwart.”

“Over the last century,” the “very same old-world abuse of government power so many Americans’ ancestors immigrated here to escape has worked its way around the branches of constitutional liberty like a parasitic vine,” the groups said: The FCC “asks this Court to recognize as legitimate one of the vine’s many snaky tendrils.”

In addition, the AAF-led brief called the USF unconstitutional. Congress “has no power to establish a program like the USF because that program is neither within any of the enumerated powers of Congress nor is it necessary or proper to the exercise of any of those powers,” it said. “Even if [Congress] did have such a power, it would not have the power to delegate it to the Executive Branch administrative state.”

Among the groups signing the brief were the American Association of Senior Citizens, American Values, Americans for Limited Government, the Center for Independent Thought, the Global Liberty Alliance, the International Conference of Evangelical Chaplain Endorsers, Men and Women for a Representative Democracy in America and the Mountain States Legal Foundation.

TechFreedom also filed an amicus brief in support of Consumers’ Research, saying, “Congress did a poor job of structuring the USF to fit within the Constitution’s parameters." The law governing the USF “might well fail even the 'notoriously lax' intelligible-principle test for nondelegation.” The group raised particular concerns about the FCC’s reliance on the Universal Service Administrative Co. to manage the program.

The FCC “botched the USF’s implementation,” TechFreedom said. Congress gave the FCC “immense and open-ended authority to run the USF,” which “is problematic; but at least it’s what Congress did,” the brief said: “What Congress did not do was authorize the FCC to hand the task of wielding that authority … to a private organization.”

The FCC maintains that USAC provides only “nonbinding advice” on the USF contribution factor, TechFreedom said. “It is more accurate to say that USAC submits proposals -- read: demands for large sums of money from regulated entities -- for approval by the FCC,” it added. “And the FCC has a long track record of serving simply as a conduit through which USAC’s ‘proposals’ flow.” USAC’s quarterly budget is deemed granted if the FCC takes no other action in 14 days, TechFreedom said: “Because the FCC need not show its own work -- need not, for that matter, even issue a summary order -- when it approves a USAC demand, there is no way to tell whether it reviews USAC’s work.”

The Cato Institute and Manhattan Institute for Policy Research also disputed whether the FCC violates the Constitution with how it handles the USF, which is an “uncapped congressional appropriation” that “has many of the hallmarks of a tax,” the two groups said. “The Government collects a fixed percentage of telecommunications companies’ long-distance service revenues, deposits the money in the U.S. Treasury, and spends the funds on a public welfare program.” But because “the FCC outsources revenue collection and disbursement to a nominally private company, the government designates the tax, euphemistically, as a regulatory ‘fee.’”