WASHINGTON, D.C. — A non-profit, non-partisan technology policy think tank that works “to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology” has filed an amicus brief urging the Supreme Court of the U.S. to declare that the FCC‘s “hands-off method of running the $9 billion Universal Services Fund violates the Constitution.
TechFreedom filed the amicus brief, noting that Congress tasked the FCC with running the USF, which promotes advanced telecommunications and broadband services for underserved institutions, remote areas, and the poor. But, TechFreedom argues, “the FCC subdelegated that task to a private entity, the Universal Service Administrative Company.”
That’s a problem, TechFreedom argues. “USAC is the Founders’ fear of unaccountable government come to life,” said Corbin K. Barthold, Director of Appellate Litigation at TechFreedom. “Congress may not hand its legislative power to others. When it handed the FCC open-ended power to set the size and scope 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.
“The FCC’s ‘private delegation’ of authority to USAC amounts to legislation without representation,” Barthold continued. “Lincoln did not extol government of all of the people, by a few of the people, for the rest of the people. USAC wastes money, lacks transparency, denies beneficiaries due process, and resists reform. These problems flow from a lack of legal guardrails or proper supervision. The FCC subdelegated power to USAC without Congress’s permission, and the FCC appears to engage in hardly any oversight of USAC’s activities. Widespread access to broadband is a worthy goal, but this is not the way to pursue it. The Supreme Court should send Congress and the FCC back to the drawing board.”
