Supreme Court upholds rural broadband service fee program
The U.S. Supreme Court ended its session before summer recess with a week-long flourish of high-stakes, consequential decisions that provoked much commentary.
Chief among these was its ruling curtailing the ability of district judges to issue so-called universal injunctions, injunctions binding non-parties including the federal government that have been used by judges to pause elements of President Donald Trump’s actions.
A less-noticed decision, but one important for rural residents, upheld a program providing subsidized internet and phone service to underserved communities across the United States. The vote was 6-3, and this time the court’s conservatives were in the minority. The decision is important for the support it continues for “telehealth” services rural communities say are essential.
The Universal Service Fund was created in 1997, rooted in the Telecommunications Act of 1996, the first revision of the Telecommunications Act of 1934. It is a program administered by the Federal Communications Commission to ensure that all Americans have access to affordable communications services, including phone service and broadband internet, which was added to its mandate in 2011. It achieves this by subsidizing these services for low-income individuals, rural communities, schools, libraries, and rural health care providers. A fee on phone providers pays for the approximately $8 billion fund that pays for the service, with the FCC adjusting fees quarterly.
Conservative groups have long argued that the program’s fees amount to a tax that unconstitutionally delegates Congress taxation authority, which can only be delegated for certain types of specific and constrained “intelligible purposes,” and that was the argument of plaintiff Consumers Research. In his dissent, Justice Neil Gorsuch agreed, along with Justices Clarence Thomas and Samuel Alito, writing, “The Constitution affords only our elected representatives the power to decide which taxes the government can collect and at what rates.”
However, writing for the six-member majority, Justice Elena Kagan rejected that argument, writing that Congress’s delegation to the FCC didn’t violate the Constitution. “We hold that no impermissible transfer of authority has occurred. Under our nondelegation precedents, Congress sufficiently guided and constrained the discretion that it lodged with the FCC to implement the universal-service contribution scheme. And the FCC, in its turn, has retained all decision-making authority within that sphere, relying on the Administrative Company only for non-binding advice. Nothing in those arrangements, either separately or together, violates the Constitution.”
The decision is Federal Communications Commission, et al. Petitioners 24–354 v. Consumers’ Research et al.
David Murray can be reached at [email protected].
