Whether the Communications Act's delegation of revenue-raising authority to the Federal Communications Commission to collect and administer the Universal Service Fund violates the nondelegation doctrine by imposing no meaningful limits on the agency's taxing power and permitting multi-layer delegation to redefine the scope of universal service

No question identified. : BACKGROUND Petitioners raise core challenges to the Federal Communications Commission’s Universal Service Fund (USF). In the decision below, the Sixth Circuit rejected those challenges, but in a parallel suit the Fifth Circuit recently granted Petitioners’ request for en banc rehearing on those same issues, arising out of a different quarterly ratemaking proceeding. See Consumers’ Rsch. v. FCC, 72 F.4th 107 (5th Cir.), vacating panel opinion at 63 F.4th 441 (5th Cir. 2023). That grant of en banc rehearing confirms the importance of these issues and portends well for the possibility of a circuit split. The USF collects nearly $10 billion every year—25 times the FCC’s annual budget—by imposing a tax on consumers’ monthly phone bills. Those funds are then used for a galaxy of telecommunications programs that allegedly expand service for the general public. But the USF is bankrolled by a historically “unique revenue raising mechanism.” Consumers’ Rsch., 63 F.4th at 450. It is “unique” because it takes Congress’s revenue-raising and taxing powers and hands them over to an unelected agency bureaucracy, without Congress itself having imposed clear and meaningful limitations. This delegation was accomplished via a combination of aspects that render the USF unlike any other program currently or previously seen. First, unlike other general welfare or taxing programs, there is an “absence of a limit on how much the FCC can raise for the USF.” Jd. at 448. “Congress neither capped the amount that the FCC may raise in contributions for the Fund nor imposed a formula for how to calculate the contributions to the Fund.” Ex. 1 at 17. And any implied limitations found in the definition of “universal service” are written in such vague and broad language that courts and the FCC itself have labeled them as merely “aspirational,” Tex. Off, of Pub. Util. Couns. v. FCC, 183 F.3d 393, 421 (Sth Cir. 1999). As Judge Newsom stated during a recent Eleventh Circuit oral argument involving these same provisions, “When you read this statute it just feels like a lot of words ... like a lot of soaring rhetoric.” Oral Argument Recording 15:40—15:52, Consumers’ Rsch. v. FCC, No. 22-13315 (11th Cir. June 21, 2023). But an agency limited only by its own “aspirations” and Congress’s “soaring rhetoric” has no limit at all. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 473 (2001). Second, the USF features a rare “dual-layer” delegation, where Congress not only allowed the agency to raise money for “universal service” but then allowed the FCC to redefine universal service and add new universal service “‘principles” virtually at will. 47 U.S.C. § 254(c)(1), (b)(7). This Court has previously held that similar multi-layer regimes are especially suspect from a constitutional perspective, including in the nondelegation context. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 538-39 (1935); see also Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 495 (2010). Letting an agency daisy-chain its own revenue-raising authority is “delegation running riot.” Schechter, 295 U.S. at 553 (Cardozo, J., concurring). Third, the USF charges are taxes, i.e., money raised for the benefit of the general public, as confirmed by the very name of the program: Universal Service Fund. The taxing power is the most jealously guarded legislative prerogative, borne out by centuries of legislatures fighting to check the executive via the power of the purse. Even the label of these forced payments as “contributions” to the executive, 47 U.S.C. § 254(d), is reminiscent of the abusive history of English kings avoiding Parliament’s purse strings by demanding payment from subjects under the ool euphemistic title of “loving contributions.”’ Allowing an agency to exercise this grand taxing power without meaningful limits is therefore especially egregious. ' See Benevolence, 3 ENCYCLOPEDIA BRITANNICA 728 (1911), Page%3AEB1911 Volume_03.djvu/7