SCOTUS dispatch: reflections on FCC v. Consumers’ Research – JURIST
Central to FCC v. Consumers’ Research is technology that props up nearly every aspect of modern life: broadband internet. The Universal Service Fund (USF) is among a set of policies historically implemented by the Federal Communications Commission (FCC), designed to keep rates for local telephone service affordable for subscribers. Supporters of USF argue that the policy has ensured people in rural and low-income areas are not left behind in the digital divide: a problem that continues to exacerbate inequality around access to information and resources. The FCC directs the funds garnered by USF to programs that expand broadband access in remote and rural areas, subsidize phone and internet service for low-income households, and connect schools and libraries through the E-Rate program. The case here, however, turns not on technical design or network deployment, but on whether the FCC’s funding model for supporting that infrastructure is constitutional.
Oral arguments for this case in late March may as well have been a live stress test of the modern administrative state. While the case directly concerns the FCC’s authority to deploy the USF, the deeper tension is a symbol of the intensified line of questioning in recent administrative law decisions: how much power can Congress give an expert agency like the FCC, and how much flexibility can that agency have in turn to structure programs like USF? Hearing the Justices grapple with those questions sharpened my understanding of the constitutional boundaries of agency action and raised concerns about the long-term survivability of universal service funding.
The Push for a Stricter Nondelegation Test
Justice Gorsuch’s vision of a reinvigorated nondelegation doctrine cast a shadow over the entire argument. Gorsuch, especially in Gundy v. United States and his Jarkesy concurrence, has called for a stricter test that would strike down statutes granting agencies broad discretion without clear direction from Congress. That sentiment fuels skepticism toward § 254 of the Communications Act, which directs the FCC to promote universal service using “predictable and sufficient” support mechanisms, but does not explicitly describe how the money should be raised or spent.
In Consumers’ Research, the challengers argued that Congress improperly delegated legislative authority to the FCC by allowing it to determine the scope of telecommunications fees, which are then implemented by a private nonprofit, USAC. The Justices, particularly Gorsuch, have been deliberating similar issues in a trend that may reshape the administrative state by curtailing agencies’ discretion under open-ended statutes. This is a move that could endanger not only the USF, but many other regulatory programs.
The Ideological Divide and the Potential Swing Votes
Press reports and commentary after the oral argument noted what was also apparent to me: a clear ideological divide among the Justices. The three Democratic appointees appeared supportive of the FCC’s authority, likely viewing USF as a legitimate exercise of congressionally conferred power to ensure universal access to communications infrastructure. In contrast, three of the more conservative Justices — Thomas, Alito, and Gorsuch — expressed strong skepticism, focusing on the lack of textual specificity in the statute and the “outsourcing” of government functions to USAC.
What struck me most, however, were the questions from Chief Justice Roberts, Justice Barrett, and Justice Kavanaugh. These three seemed harder to read. They were clearly engaged with the challengers’ arguments, but also unwilling to completely accept the idea that the FCC’s structure is unconstitutional. Their questions repeatedly pressed both sides to clarify the practical and doctrinal issues at stake.
Chevron deference has eroded, replaced by a version of the major questions doctrine that demands clear congressional authorization before agencies can act on economically or politically significant matters. FCC v. Consumers’ Research raises the possibility that even longstanding programs like USF could be struck down if courts decide the statute was not sufficiently specific. It also raises practical questions. If the FCC’s funding model is unconstitutional, what happens next? Will Congress step in? If not, how will the FCC continue to promote universal service in rural and underserved areas?
Listening to this oral argument brought home the fragility of the administrative structures we often take for granted. In the end, I gained a sharper sense of how constitutional theory, statutory interpretation, and practical governance collide in real time. FCC v. Consumers’ Research could redefine the scope of what expert agencies are allowed to do in a system where laws are often broad and technologies move faster than Congress. A decision is expected by June.
