FCC vs. Consumers' Research—Did the Supreme Court Just Greenlight Unlimited Agency Fees?
In this episode of Unwritten Law, NCLA's John Vecchione and Zhonette Brown break down the recent Supreme Court decision in FCC v. Consumers' Research, a crucial non-delegation doctrine case.
Zhonette explains the controversial ruling that allows the Federal Communications Commission (FCC) to set fees—arguably taxes—without explicit congressional limits. They discuss the implications of the Court’s continued adherence to the "intelligible principle" test, the unresolved confusion between fees and taxes, and the concerning delegation of rate-setting power to private entities. John and Zhonette explore why this ruling may have broader implications for administrative power, taxation, and congressional accountability.
Key topics: Non-delegation doctrine, intelligible principle test, fee vs. tax debate, FCC authority, and recent Supreme Court rulings on administrative overstep.
Transcript
So, uh, we're gonna be discussing Federal Communications Commission. Versus consumers research. Welcome to the program, Jeanette.
[: [: [:Commission to set the amount of the Universal service fund, the amount that it uses, then to provide services to rural schools, hospitals, uh, consumers, as well as the Lifeline Program, et cetera.
[: [:Basically an ev, a blank slate to determine what is universal service. That meant that they also gave the FCCA blank check to cash on the pockets of all the consumers.
[: [: [:So were these stakeholders all. Uh, company, cable companies or what were they?
[: [: [:Anybody who gets a cell phone bill or many other bills, you'll see a universal service fund fee or a universal service fee on your bill. That's what we're talking about. And it's itemized. It is itemized now. Now
[: [:These subsidies were sort of hidden in the rates after the. Telephone company became deregulated. They had to be more explicit.
[: [: [:They did not win. What occurred here with this, with this case,
[:The theory being so long as Congress gives the intelligible principle, whatever the administration, the agency does, it's not legislative power. And how about the delegation to the private party? Well, the, the court wasn't troubled by that either because they found that basically the FCC provided sufficient oversight.
And so, so long as the FCC was providing the sufficient oversight, it wasn't actually a delegation of power, it was a delegation of tasks and duties.
[: [: [: [: [:Uh, brief on this, and I think it was, uh, Trent Otter's first argument for the Supreme Court, who's a friend of ours, or if you're listening, Trent a frenemy. 'cause he put in an amicus brief for the other side and another case we have. But he, I thought he did a very good job. And, uh, but the, the court was not, uh, was not going there for any of what was our a what was our argument?
[: there was a case again in the:But the court then also went on to say that his, historically, it had approved things such as. In the public interest as a sufficient intelligible principle. Our brief made the point that that's not actually true. And always there's much more for the court to look at and that Congress has imposed on an agency to limit its, its still its authority
[:I always thought that maybe Ver Mule would like it if they, if they just said, um, the agency shall act in the common good. Right. Is that an intelligible principle?
[: did cite Op Cotton Mill, the: [:But they're all things like. Oh, uh, did you, uh, allow for the fish to replenish themselves? Oh, did you? Are you closing down shoreline, uh, businesses? Right. Things that can be checked and on these type of statutes. Well, what's the measuring rod?
[:Allow an evolving definition of universal service, but there are considerations and principles that Congress put in the statute that they said, uh, the agency has to require. Now, what's interesting here and, and whether this is a post lober bright sort of development, other court circuit court cases that have dealt with these issues of FCC regulating an FCC rate setting have essentially said.
The FCC can pick and choose. Among those principles, they can decide to favor one and basically ignore the others. The majority's reading of the s of the statute is much tighter, much more constrained, and doesn't actually allow that sort of sorting between, you know, six principles and eight considerations, or, you know, factors, whatever.
It might be, the same sort of thing that you're talking about with, with the, uh, mag.
[: [: [: [:Fee is actually a tax That attacks is a very core power that we're talking here about a domestic tax where the president doesn't have any, you know. Inherent authority. And so in their view, the intelligible principle test wasn't sufficient. It's not sufficient to constrain that sort of core power.
[:I just wanna point out that, uh, Gorsuch was the descent in ghi and the guy he didn't get was Alito. And he got Alito this time and then he lose Roberts. Even on attacks. He could have called it a tax, just like Obamacare. Right. Um, but he might not have followed the logic anyway. But, um, I do find that I do find the switching numbers a little kind of interesting in this case.
[: [:But in any event, uh, so, uh, the three, uh, dissenters, um. At least they're open for, uh, a, a reinvigoration of the non delegation doctrine.
[: [: [:I think so. For instance, in our choice case, we bring up the non delegation doctrine in the briefing. In that case, we say, look, Congress gave no standard. And in the rulemaking process, the EPA itself said, here are the standards that we're gonna use, which are standards that they incorporated. We called them out on that in our briefing.
Their response was, well, that's just us taking care to make sure that Congress's program gets administered. So I think that the requirement for standards and that the requirement that Congress set the standards can help in some of the cases.
[:I think after the argument we kind of knew, uh, which way it was gonna go a little bit. But, um, I was disappointed in the, in certainly the number, you know, and, and, and the six three, um, after Gundi, you thought, I think it may be five four, they, or they found the facts of this were different. I, I think one of the problems is the court has been kind of open or, or it has a, a.
A good understanding of delegations to private organizations. And it, it's, it's got a lot of cases on those non delegation and what is and what isn't. But, um, the real meat of what we're looking at here is can Congress delegate away its power to the agencies, not private parties? That's a different question.
We've got the horse racing cases and all that, but at least they've got a number of cases on what's allowable and what's not allowable in the private area, but in actual. Gian or, uh, or, or, or, um, you know, d dispersing Congress's power to the executive branch. They, it's still mush, it
[: [:Huh. So, um, I, I think that, um, I think that. The issue of non delegation will continue to come up, certainly from, uh, from those of us who think it's important matter of separation of powers. But, um, so your takeaway on this case is that, uh, maybe it tightened up the law a little bit. I. Uh, overall it's gotta be a disappointment, right?
[: [:Right. They've said a lot of things, but ever since Obamacare where it turned out to be a tax and, and, um, but even before that, sometimes the agency calls it a fee and it's supposed to be just for a service and it's not be supposed to be more than the service and all that. Um, was there any discussion of that?
[: [: [: [: [:
