萝莉网

Jon Bernstein, who co-leads the EdLiNC Coalition with Noelle Ellerson Ng, shares his insights on the arguments made in the E-Rate case before the U.S. Supreme Court this week.

Yesterday morning Noelle and I had the opportunity to attend oral arguments at the Supreme Court in the case challenging the constitutionality of the Universal Service Fund, which includes E-Rate. By and large, I thought that oral arguments went well (as did most of the news articles that I have read this afternoon). Both liberal and conservative Justices expressed skepticism about the arguments challenging USF鈥檚 constitutionality advanced by Consumers鈥� Research, the conservative group that brought the case. They also shared concerns about what would happen if the funding mechanism was invalidated. Based on oral arguments alone, only Justice Gorsuch and perhaps Justice Thomas still seem likely to support overturning the statute. It should be noted, though, that the Chief Justice asked only a few questions. A final ruling will come by the end of June.

 

This case turns on whether Congress violated the non-delegation doctrine, which holds that Congress cannot delegate its legislative authority to other entities, when it established the Universal Service Fund (USF) in the Telecommunications Act of 1996. Specifically, Consumers鈥� Research argued that the statute contains no specific overall funding cap for USF and does not specifically define the services that USF supports. It also claims that the FCC鈥檚 use of the Universal Service Administrative Company (USAC) to perform quarterly funding contributions calculations also represents a second unconstitutional delegation of Congress鈥� authority. The FCC, EdLiNC and others hold that the statute contains 鈥渋ntelligible principles鈥� to guide the FCC in terms of how much to spend and the kinds of services that should be included in the definition of universal service, and that the FCC acted appropriately in its use of USAC to administrative functions. 

 

The US Solicitor General, representing the FCC, ably defended how USF was set-up, arguing that the statute鈥檚 inclusion of language that funding should be 鈥渟ufficient鈥� to provide universal service set a sufficient boundary on how the FCC should size the fund, and that no numerical cap was needed. The three liberal Justices (Kagen Sotomayor and Jackson) agreed that there was ample textual support in the statute for what the FCC had done, with Kagen repeatedly telling Consumers鈥� Research鈥檚 counsel that she did not agree with his interpretation of the statute. When counsel for Consumers鈥� Research agreed that even a cap as high as one trillion dollars would be better than no cap at all. Barrett and Kavanaugh scoffed. Kavanaugh saying of such a cap: 鈥淲hat would be accomplishing?鈥� Barrett said 鈥渢hat seems a bit hollow. Kind of seems like a meaningless exercise.鈥� Only Justice Gorsuch seemed skeptical of the delegation to the FCC, questioning whether the principles guiding the level of universal service were so open ended that it would allow everyone in the country to receive Starlink or cell phones for free.

 

There was more limited discussion of Consumers Research鈥檚 other claim that the Commission鈥檚 delegation to USAC of calculations to determine USF quarterly collections, which the Commission ultimately approves, also constituted an unconstitutional delegation of Executive Branch authority. Justice Alito did suggest that he was concerned that the Commission was 鈥渞ubber stamping鈥� what the USF provided but Petitioners did a good job of showing that the Commission had corrected USAC on at least four occasions, suggesting that it was not in fact a rubber stamp.

 

Most interesting was the fact that many Justices questioned Petitioners sharply about what would be the impact of ruling that the USF was unconstitutional. Justice Barrett asked for comment on whether "the consequences of holding the statute unconstitutional would be devastating for universal service." The Solicitor General suggested that overturning USF would also have implications for the constitutionality of Congressional grants of authority to other federal agencies to impose fees to support programs. Justice Alito was concerned about both types of ramifications, stating his concern about what would happen to Internet access in rural areas. While Petitioners鈥� counsel suggested that Congress would have ample time to make fixes or even overhaul the statute, Justice Alito said: 鈥淚t鈥檚 never easy to get legislation enacted by Congress鈥�Even more difficult right now than it has been at times in the past鈥�

 

Finally, I want to note how important it was that the FCC and the Federal Government continue to defend USF. It was unclear whether the incoming Administration would back away from its support for USF and even work to undermine it. We were fortunate that did not happen.