Amicus Curiae Brief — Federal Communications Commission, et al., Petitioners v. Consumers' Research, et al.

Supreme Court briefJan 15, 2025

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Nos. 24-354, 24-422

IN THE

Supreme Court of the United States

FEDERAL COMMUNICATIONS COMMISSION, ET AL.,

Petitioners,

CONSUMERS’ RESEARCH, ET AL.,

Respondents.

SHLB COALITION, ET AL.,

Petitioners,

CONSUMERS’ RESEARCH, ET AL.,

Respondents.

On Writs of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF AMICUS CURIAE PUBLIC CITIZEN

IN SUPPORT OF PETITIONERS

NICOLAS A. SANSONE

Counsel of Record

ALLISON M. ZIEVE

SCOTT L. NELSON

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

nsansone@citizen.org

Attorneys for Amicus Curiae

January 2025

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT .................................... 2

ARGUMENT ............................................................... 4

The Constitution allows Congress ample

latitude to authorize the executive to implement

broadly drawn statutory mandates.................... 4

II.

The USF falls within the heartland of the sort of

congressional delegations that this Court has

routinely upheld.................................................. 7

III. Invalidating the USF on nondelegation grounds

would imperil any number of longstanding

congressional schemes. ..................................... 16

CONCLUSION.......................................................... 20

TABLE OF AUTHORITIES

Cases

Page(s)

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935) ............................................... 12

American Power & Light Co. v. SEC,

329 U.S. 90 (1946) ....................................... 4, 5, 6, 8

Federal Power Commission v. Hope Natural Gas Co.,

320 U.S. 591 (1944) ............................................... 11

Gundy v. United States,

588 U.S. 128 (2019) ....................................... 4, 7, 20

Harrington v. Purdue Pharma L.P.,

603 U.S. 204 (2024) ............................................... 15

Industrial Union Department, AFL-CIO v. American

Petroleum Institute,

448 U.S. 607 (1980) ............................................... 15

Jennings v. Rodriguez,

583 U.S. 281 (2018) ............................................... 15

J.W. Hampton, Jr., & Co. v. United States,

276 U.S. 394 (1928) ................................... 4, 5, 6, 11

Lagos v. United States,

584 U.S. 577 (2018) ............................................... 15

Lichter v. United States,

334 U.S. 742 (1948) ............................................... 14

Mistretta v. United States,

488 U.S. 361 (1989) ............................. 5, 6, 7, 11, 13

National Broadcasting Co. v. United States,

319 U.S. 190 (1943) ........................................... 9, 10

iii

National Cable Television Ass’n v. United States,

415 U.S. 336 (1974) ............................................... 16

New York Central Securities Corp. v. United States,

287 U.S. 12 (1932) ................................................. 10

Panama Refining Co. v. Ryan,

293 U.S. 388 (1935) ......................................... 11, 16

Skinner v. Mid-America Pipeline Co.,

490 U.S. 212 (1989) ............................................... 19

Tagg Bros. & Moorhead v. United States,

280 U.S. 420 (1930) ............................................... 11

United States v. Rock Royal Co-operative,

307 U.S. 533 (1939) ......................................... 11, 13

Whitman v. American Trucking Ass’ns,

531 U.S. 457 (2001) ....................................... 6, 9, 11

Wikerson v. Rahrer,

140 U.S. 545 (1891) ................................................. 5

Yakus v. United States,

321 U.S. 414 (1944) ............................... 6, 10, 11, 13

Yates v. United States,

574 U.S. 528 (2015) ............................................... 14

Statutes

7 U.S.C. § 473d.......................................................... 19

12 U.S.C. § 16 ............................................................ 19

12 U.S.C. § 1755(b) ................................................... 19

12 U.S.C. § 5531(b) ................................................... 18

15 U.S.C. § 78k-1(a)(2) .............................................. 18

15 U.S.C. § 717d(a) ................................................... 17

15 U.S.C. § 2056(a) ................................................... 18

16 U.S.C. § 1533(a)(1) ............................................... 17

16 U.S.C. § 6802(b)(1) ............................................... 19

16 U.S.C. § 6802(b)(6) ............................................... 19

21 U.S.C. § 136a(a)(1) ............................................... 19

21 U.S.C. § 387a(b) ................................................... 17

29 U.S.C. § 213(a)(1) ................................................. 17

29 U.S.C. § 628 .......................................................... 18

29 U.S.C. § 655(b) ..................................................... 18

31 U.S.C. § 5111(a)(1) ............................................... 18

31 U.S.C. § 9701(b) ................................................... 19

42 U.S.C. § 300g-1(b)(1)(A)(iii) ................................. 18

46 U.S.C. § 40701(b) ................................................. 17

47 U.S.C. § 205(a) ..................................................... 17

47 U.S.C. § 254(b) ............................................. 7, 8, 10

47 U.S.C. § 254(b)(1) ............................................. 8, 17

47 U.S.C. § 254(b)(2) ................................................... 8

47 U.S.C. § 254(b)(7) ........................................... 15, 18

47 U.S.C. § 254(c)(1) ............................................... 7, 9

47 U.S.C. § 254(c)(1)(A) ........................................ 7, 17

47 U.S.C. § 254(c)(1)(B) .............................................. 7

47 U.S.C. § 254(c)(1)(C) .............................................. 7

47 U.S.C. § 254(c)(1)(D) .............................................. 7

47 U.S.C. § 254(d) ........................................... 8, 14, 19

Constitutional Provisions

U.S. Const. art. I, § 1 .................................................. 4

U.S. Const. art. II, § 3 ............................................. 4, 6

INTEREST OF AMICUS CURIAE1

Amicus curiae Public Citizen is a nonprofit

consumer advocacy organization with members in all

fifty states. Public Citizen regularly appears before

Congress, administrative agencies, and courts to

advocate for laws and policies that protect consumers,

workers, and the general public. Public Citizen has a

strong interest in defending Congress’s prerogative to

confer authority on expert agencies to serve the public

interest by responding to evolving contemporary

realities. Public Citizen often participates as amicus

in this Court and the courts of appeals in cases raising

constitutional separation-of-powers challenges to such

congressional authorizations. See, e.g., SEC v.

Jarkesy, 603 U.S. 109 (2024); Allstates Refractory

Contractors, LLC v. Su, 79 F.4th 755 (6th Cir. 2023),

cert. denied 144 S. Ct. 2490 (2024).

Public Citizen submits this brief to explain that

Congress did not delegate legislative power when it

conferred authority on the Federal Communications

Commission (FCC) to create and fund programs to

promote universal access to telecommunications

services. Accepting respondents’ contrary argument

could severely undermine this Court’s longstanding

recognition that Congress enjoys considerable latitude

to empower executive agencies to determine how best

to implement Congress’s directives. Such a result

would hamstring Congress in pursuing its substantive

goals and would imperil any number of longstanding

administrative schemes on which regulated parties

and the public have come to rely.

1 This brief was not written in any part by counsel for a party.

No one other than amicus curiae or its counsel made a monetary

contribution to the preparation or submission of the brief.

SUMMARY OF ARGUMENT

I. The Constitution grants Congress exclusive

authority to exercise legislative power, while it

charges the executive with faithfully implementing

Congress’s laws. The Court has long recognized that

this arrangement allows Congress to lay out its legislative mandates in general terms, as the necessities of

government will often require, and to confer discretion

on the executive to determine how best to carry out

those directives in light of changing on-the-ground

realities and the policies articulated by Congress.

While Congress must craft its directives to the

executive in terms sufficiently intelligible to enable a

determination whether the executive has complied

with statutory requirements, this Court has

emphasized that the degree of executive discretion

that will most effectively enable the fulfillment of such

legislatively enacted requirements is generally a

matter best left to Congress’s judgment.

II. In keeping with these principles, the Telecommunications Act of 1996 sets out Congress’s policy goal

of ensuring that certain vital telecommunications

services be made available at affordable prices

throughout the nation, and it directs the executive to

develop and fund programs that will effectuate that

goal. This legislative arrangement falls squarely in

line with the sort of statutory schemes that this Court

has routinely upheld as consistent with constitutional

separation-of-powers principles.

Although the decision below expresses doubt as to

the constitutionality of Congress’s decision to confer

authority on the executive to implement universalservice programs and administer a Universal Service

Fund (USF) to finance those programs, that doubt is

unfounded. To begin with, the decision below departs

from this Court’s precedents by imposing an unduly

stringent standard for the level of specificity with

which Congress must spell out the details of how the

executive is to fulfill Congress’s statutory mandates.

Furthermore, the decision adopts an implausible

reading of certain statutory provisions as conferring

virtually unbounded authority on the executive.

Properly read, the Telecommunications Act offers

constitutionally sufficient guidance for executive

action. And if there were any doubt on that point, the

doctrine of constitutional avoidance would counsel

against reading the statute to grant the executive

limitless authority.

III. The consequences of accepting respondents’

argument that the Act impermissibly delegates legislative power could be extreme. Countless statutory

schemes confer broad authority on the executive—for

example, authority to set natural-gas prices, to

regulate product safety, and to calculate appropriate

fees for all manner of government services. A holding

that the USF scheme violates constitutional

separation-of-powers principles would break with

longstanding precedent and, in the process, open

innumerable statutory enactments to novel constitutional attacks. Beyond sowing practical disruption that

would threaten the government’s ability to serve and

protect the public, such a result would threaten to

deprive Congress of the flexibility that this Court has

long recognized is essential to Congress’s ability to

effectually fulfill its constitutionally mandated legislative role.

ARGUMENT

I. The Constitution allows Congress ample

latitude to authorize the executive to implement broadly drawn statutory mandates.

Article I of the U.S. Constitution provides that

“[a]ll legislative Powers herein granted shall be vested

in … Congress.” U.S. Const. art. I, § 1. Article II then

empowers the executive to “take Care that [Congress’s] Laws be faithfully executed.” U.S. Const.

art. II, § 3. For a century, this Court has consistently

recognized that these complementary provisions allow

Congress to “use officers of the executive branch

within defined limits, to secure the exact effect intended by its acts of legislation, by vesting discretion in

such officers to make public regulations interpreting a

statute and directing the details of its execution.” J.W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394,

406 (1928). Indeed, this Court has observed that such

arrangements are both permissible and an essential

foundation of functional government, “dependent as

Congress is on the need to give discretion to executive

officials to implement its programs.” Gundy v. United

States, 588 U.S. 128, 147 (2019) (plurality opinion).

As the Court has repeatedly explained, “[n]ecessity

… fixes a point beyond which it is unreasonable and

impracticable to compel Congress to prescribe detailed

rules,” and “[t]he legislative process would … bog

down if Congress were constitutionally required to

appraise before-hand the myriad situations to which

it wishes a particular policy to be applied and to

formulate specific rules for each situation.” Am. Power

& Light Co. v. SEC, 329 U.S. 90, 105 (1946); see, e.g.,

J.W. Hampton, 276 U.S. at 407–08 (explaining that

Congress may direct the executive to set “just and

reasonable” interstate-carrier rates because “[t]he

rates to be fixed are myriad” and “[i]f Congress were

to be required to fix every rate, it would be impossible

to exercise the power at all”). This need for legislative

flexibility is particularly acute today, moreover, “in

our increasingly complex society, replete with ever

changing and more technical problems.” Mistretta v.

United States, 488 U.S. 361, 372 (1989). Put bluntly,

“Congress simply cannot do its job” in the face of

evolving contemporary realities “absent an ability to

delegate power under broad general directives.” Id.

Of course, Congress must act in accordance with

the Constitution’s separation of powers and so cannot

delegate its Article I authority “to make a law.”

Wikerson v. Rahrer, 140 U.S. 545, 562 (1891); see J.W.

Hampton, 276 U.S. at 406 (cautioning that Congress

cannot transfer legislative power to the President

under the guise of a grant of discretion). But Congress

does not abdicate its legislative role by writing “broad

general directives,” Mistretta, 488 U.S. at 372, that

allow leeway for the executive to “exercise judgment

on matters of policy” when it comes to implementation, id. at 378. As this Court has held, Congress

fulfills its legislative function as long as it “clearly

delineates the general policy, the public agency which

is to apply it, and the boundaries” of that agency’s

“authority.” Am. Power & Light, 329 U.S. at 105.

This Court has distilled these principles into a test

that, for a century, has governed the question whether

a congressional delegation of authority to the

executive comports with constitutional separation-ofpowers principles. Specifically, a court must ask

whether Congress has “la[id] down by legislative act

an intelligible principle to which the person or body

authorized” to execute Congress’s legislation “is

directed to conform.” J.W. Hampton, 276 U.S. at 409.

“So long as Congress” has done so, it has not delegated

legislative power. Mistretta, 488 U.S. at 372. And an

executive agency that issues regulations or orders to

implement Congress’s legislation exercises Article II

executive power by “tak[ing] Care that the Laws be

faithfully executed.” U.S. Const. art. II, § 3.

The intelligible-principle test evinces respect for

the respective roles of the legislative, executive, and

judicial branches. By allowing Congress wide latitude

to repose authority in executive bodies capable of

responding flexibly to novel or unforeseen situations,

the test guards against undue judicial interference

with Congress’s decisions about how best to

accomplish its legislative aims. See Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 474–75 (2001) (“[W]e

have ‘almost never felt qualified to second-guess

Congress regarding the permissible degree of policy

judgment that can be left to those executing or

applying the law.’” (quoting Mistretta, 488 U.S. at 416

(Scalia, J., dissenting))). At the same time, the

requirement that Congress must supply intelligible

principles to guide executive discretion enables the

judiciary to assess the executive’s “application of

[Congress’s] policy in the light of [Congress’s]

legislative declarations” and to guard against

“statutory or constitutional excesses.” Am. Power &

Light, 329 U.S. at 105–06; see Yakus v. United States,

321 U.S. 414, 426 (1944) (explaining that a statute

creates a nondelegation problem “[o]nly if … there is

an absence of standards for the guidance of [executive]

action, so that it would be impossible … to ascertain

whether the will of Congress has been obeyed”).

Consistent with the flexibility that inheres in the

constitutional plan, this Court has “over and over”

applied the intelligible-principle test to uphold federal

statutes that direct executive bodies to regulate in

pursuit of “even very broad” congressional aims.

Gundy, 588 U.S. at 146 (plurality opinion). After all,

“Congress is no less endowed with common sense”

than the courts are and is “better equipped to inform

itself of the ‘necessities’ of government.” Mistretta, 488

U.S. at 416 (Scalia, J., dissenting). Accordingly, this

Court, out of “wisdom and humility alike,” typically

has been loath to interfere with Congress’s judgment

that an executive agency should enjoy a wide measure

of discretion to “carry[] out [its] charge” in the face of

unpredictable and constantly evolving on-the-ground

realities. Gundy, 588 U.S. at 148 (plurality opinion).

II. The USF falls within the heartland of the sort

of congressional delegations that this Court

has routinely upheld.

A. In the Telecommunications Act of 1996,

Congress tasked the FCC with creating and implementing “policies for the preservation and advancement of universal [telecommunications] service.” 47

U.S.C. § 254(b). Recognizing that the meaning of

universal service would necessarily “evolv[e]” with

“advances in telecommunications and information

technologies and services,” id. § 254(c)(1), Congress

directed the FCC to fashion regulations to support

access to those services that, at any given time, “are

essential to education, public health, or public safety,”

id. § 254(c)(1)(A), “have … been subscribed to by a

substantial majority of residential customers,” id.

§ 254(c)(1)(B), “are being deployed in in public telecommunications networks by telecommunications

carriers,” id. § 254(c)(1)(C), and “are consistent with

the public interest, convenience, and necessity,” id.

§ 254(c)(1)(D). In addition, Congress supplied seven

principles to guide the FCC, including that “[q]uality

services should be available at just, reasonable, and

affordable rates,” id. § 254(b)(1), and that “[a]ccess to

advanced telecommunications and information services should be provided in all regions of the Nation,”

id. § 254(b)(2); see also id. §§ 254(b)(3)–(7). Congress

also directed the executive to require payments from

telecommunications providers to finance the

programs that the FCC institutes to pursue the

Telecommunications Act’s mandate. Specifically,

Congress directed that “[e]very telecommunications

carrier that provides interstate telecommunications

services shall contribute, on an equitable and nondiscriminatory basis, to the specific, predictable, and

sufficient mechanisms established by the [FCC] to

preserve and advance universal service.” Id. § 254(d).

Through these provisions, Congress has issued a

regulatory mandate, set forth the “general policy” of

universal access that the required regulations are to

pursue, identified the FCC as “the public agency

which is to apply” that policy, and circumscribed the

“boundaries” of the FCC’s “authority” to regulate. Am.

Power & Light, 329 U.S. at 105. Congress’s framework

for addressing the “complex economic and social

problem[]” of ensuring access to vital telecommunications services is thus “constitutionally sufficient”

and entitled to “judicial approval.” Id.

Critically, Congress’s scheme for directing the

executive to implement and fund universal-service

policies is comparable to legislative schemes that this

Court has upheld against nondelegation challenges in

the past. Whitman, for example, upheld the Clean Air

Act’s requirement that the Environmental Protection

Agency (EPA) set air-quality standards “‘requisite to

protect the public health’ with ‘an adequate margin of

safety.’” 531 U.S. at 465 (quoting 42 U.S.C.

§ 7409(b)(1)). The decision below suggests that the

delegation in Whitman was permissible only because

“Congress made the crucial policy judgment—that the

public should be protected from harmful pollutants”—

and needed to rely on the EPA’s “scientific expertise”

to give effect to that judgment. Pet. App. 34a. That

suggestion does not distinguish Whitman, because

Congress here similarly “made the crucial policy

judgment,” id.—that certain necessary and widely

used telecommunications services should be available

at affordable rates across the nation—and properly

entrusted the FCC, with its expertise in the latest

“advances in telecommunications and information

technologies and services,” 47 U.S.C. § 254(c)(1), to

specify precisely what the covered services should be.

National Broadcasting Co. v. United States, 319

U.S. 190 (1943) (NBC), is likewise instructive, and the

Fifth Circuit’s attempt to distinguish it from this case

is unavailing. In NBC, this Court upheld a statute

that authorized the FCC to grant radio broadcasting

licenses as “public interest, convenience, or necessity”

dictates. Id. at 216. According to the decision below,

the statute in NBC delegated a power that was

“executive in character”—i.e., the allocation of a public

resource—and so did not need to satisfy the

intelligible-principle test. Pet. App. 37a. This

rationale, however, appears nowhere in NBC. Rather,

NBC upheld the statutory grant of licensing authority

because the FCC was “not left at large” in exercising

this authority, 319 U.S. at 216, as Congress had

“define[d] broad areas for regulation and …

establish[ed] standards for [executive] judgment

adequately related in their application to the

problems to be solved,” id. at 220. Emphasizing the

“fluid and dynamic” nature of the then-evolving radio

industry, NBC held that Congress was not required to

“attempt[] an itemized catalogue” of the relevant

considerations and could instead permissibly give the

FCC a “comprehensive mandate” to carry out “the

large public aims” of the statute in accordance with

the statute’s express purposes. Id. at 218–19; see also

N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24–

25 (1932) (upholding a statute that directed the

executive to approve railroad acquisitions in the

“public interest” because statutory purpose and

context gave meaning to that term). As in NBC and

New York Central Securities Corp., the statute in this

case expresses a clear policy directive—pursuing

nationwide access to affordable telecommunications

services—against which to assess executive action.

Yakus likewise supports the FCC. The statute at

issue in that case, the Emergency Price Control Act,

empowered the executive to set “fair and equitable”

commodity prices. 321 U.S. at 423. The decision below

points out that the statute required the executive to

give “due consideration” to certain baseline prices and

to make adjustments in light of certain factors. Pet.

App. 37a–38a (quoting Yakus, 321 U.S. at 421). But

just as the statutory context in Yakus provided

“legislative direction” to the executive in carrying out

its price-setting duty, id. at 38a, statutory context

here too offers the FCC specific “principles” on which

to “base [its] policies.” 47 U.S.C. § 254(b). While the

Fifth Circuit characterized these principles as more

capacious than the statutory considerations in Yakus,

Pet. App. 37a–38a, “Congress is not confined to that

method of executing its policy which involves the least

possible delegation of discretion to administrative

officers” and is free to choose “the flexibility attainable

by the use of less restrictive standards.” Yakus, 321

U.S. at 425–26. Indeed, this Court has unflinchingly

accepted the executive’s authority to set “just and

reasonable” rates in multiple contexts without

requiring the level of guidance that the Fifth Circuit

read the statute in Yakus as offering. See, e.g., Fed.

Power Comm’n v. Hope Natural Gas Co., 320 U.S. 591,

600–02 (1944) (wholesale natural-gas prices); Tagg

Bros. & Moorhead v. United States, 280 U.S. 420, 439–

40 (1930) (certain stockyard services); J.W. Hampton,

276 U.S. at 407–08 (interstate carriage).

Conversely,

the

Telecommunications

Act’s

universal-service provisions look nothing like the

“only two statutes” that this Court has ever held to

impermissibly delegate legislative power. Whitman,

531 U.S. at 474. First, in Panama Refining Co. v.

Ryan, 293 U.S. 388 (1935), this Court held a

delegation to be unconstitutionally broad where

Congress passed a statute that granted the President

“unlimited authority to determine the policy” with

respect to prohibiting interstate transportation of hot

oil, and to adopt a prohibition, or not, “as he may see

fit,” without stating “whether or in what circumstances or under what conditions the President” was

to do so, id. at 415. Here, in contrast, Congress has

expressly set forth its policy aim of ensuring universal

access to telecommunications services. And while the

implementation of that legislative aim requires the

FCC to make some interstitial policy judgments, “[i]t

is well settled … that it is no argument against the

constitutionality of an act to say that it delegates

broad powers to executives to determine the details of

any legislative scheme.” United States v. Rock Royal

Co-op., 307 U.S. 533, 574 (1939); see Mistretta, 488

U.S. at 417 (Scalia, J., dissenting) (“[A] certain degree

of discretion … inheres in most executive … action,

and it is up to Congress, by the relative specificity or

generality of its statutory commands, to determine—

up to a point—how small or how large that degree

shall be.”).

Second, in A.L.A. Schechter Poultry Corp. v. United

States, 295 U.S. 495 (1935), this Court held that

Congress had impermissibly delegated legislative

power when it authorized the executive to pass

“whatever” industrial codes might “tend to effectuate”

any one of a “broad range of objectives,” such as

ensuring a free flow of commerce, promoting

industrial capacity, fostering labor-management

harmony, eliminating unfair commercial practices,

reducing

unemployment,

conserving

natural

resources, and increasing domestic consumption and

purchasing power. Id. at 534–35; see id. at 551. Here,

unlike the statute in A.L.A. Schechter, which gave the

executive “virtually unfettered” authority to “enact[]

laws for the government of trade and industry

throughout the country,” id. at 542, the Telecommunications Act empowers the FCC to create and fund

programs to further a discrete, limited statutory

objective within the circumscribed domain of telecommunications services.

Given the wide range of broad delegations that this

Court has approved in the past, it easily follows that

Congress’s decision here to confer authority on the

FCC to determine the most effective way to implement

a specific, clearly stated policy directive falls squarely

within Congress’s constitutional authority.

B. While the decision below does not resolve the

question whether Congress’s grant of authority to the

executive to create and fund universal-service prog-

rams violates constitutional nondelegation principles,

it voices “grave concerns” about the constitutionality

of the statutory scheme. Pet. App. 42a. These concerns

are unwarranted. The decision’s misgivings derive

from a misunderstanding of the level of granularity

with which Congress is required to define its policy

mandates and from a misreading of statutory text.

On the former point, the decision below recognizes

that the Telecommunications Act offers some “guidance on the contours of Congress’s idea of a universal

service policy.” Id. at 27a (citing 47 U.S.C. § 254(b)). It

characterizes this guidance, though, as “aspirational,”

id. at 28a, and “contentless in important respects,” id.

at 29a. All legislative policy aims, however, can be

characterized as aspirational. What matters for

nondelegation purposes is that they are “defined” with

sufficient clarity that they are capable of delimiting

the permitted scope of executive action. Yakus, 321

U.S. at 423; see id. (approving a statutory grant of

authority to the executive to set commodity prices

under Congress’s “declared policy” of “stabiliz[ing] …

prices so as to prevent war-time inflation”). As the

decision below itself recognizes, the statute here

expressly “reflects [Congress’s] policy goal of making

telecommunications services available to all

Americans.” Pet. App. 10a. And although the decision

complains that Congress left certain subsidiary

matters up to executive discretion—such as “which

schools and libraries should receive subsidized

services,” id. at 29a, and what cellphone-service rates

are “affordable,” id. at 30a—this Court’s precedents

have long permitted Congress to issue “broad general

directives,” Mistretta, 488 U.S. at 372, and entrust the

“executive[] to determine the details of [the] legislative scheme,” Rock Royal, 307 U.S. at 574; cf. Lichter

v. United States, 334 U.S. 742, 785 (1948) (“It is not

necessary that Congress supply administrative

officials with a specific formula for their guidance in a

field where flexibility and the adaptation of the

congressional policy to infinitely variable conditions

constitute the essence of the program.”).

On the latter point, the decision below identifies

certain statutory provisions that it reads as stripping

Congress’s universal-service directive of meaningful

limits on executive authority. In particular, the

decision emphasizes that the statute requires the USF

to be “sufficient” to fund the FCC’s universal-service

programs but that nothing in the statutory language

bars the FCC from collecting far more money than it

needs to run those programs. Pet. App. 27a (quoting

47 U.S.C. § 254(b)(5)). The decision also points to

statutory language that permits the FCC to pursue

universal-service principles that the FCC deems

“necessary and appropriate for the protection of the

public interest, convenience, and necessity.” Id. at 28a

(quoting 47 U.S.C. § 254(b)(7)). According to the

decision below, these provisions confer freewheeling

discretion on the FCC, divorced from any constraints

that might appear elsewhere in the statutory scheme.

This reading of the statute is implausible. Despite

the suggestion in the decision below that the statute

empowers the FCC to collect unlimited funds,

Congress’s direction that the funds be “sufficient” to

support the FCC’s universal-service programs, 47

U.S.C. § 254(d), is better read to require that the funds

collected be related to the cost of running those

programs. See, e.g., Yates v. United States, 574 U.S.

528, 543 (2015) (cautioning courts “to ‘avoid ascribing

to one word a meaning so broad that it is inconsistent

with its accompanying words, thus giving unintended

breadth to the Acts of Congress’” (quoting Gustafson

v. Alloyd Co., 513 U.S. 561, 575 (1995))); Lagos v.

United States, 584 U.S. 577, 583–84 (2018) (choosing

a “limited interpretation” rather than a “broad

interpretation” of the types of expense recoverable

under a criminal restitution statute, based on the

context provided by “the statute as a whole”). Further,

it is implausible to conclude that, by authorizing the

FCC to pursue “necessary and appropriate” policies,

47 U.S.C. § 254(b)(7), Congress contemplated that the

FCC would have free rein to create programs that are

untethered from the universal-service principles that

form the backbone of the statutory framework within

which this catchall grant of authority is embedded.

See Harrington v. Purdue Pharma L.P., 603 U.S. 204,

217 (2024) (explaining that “a catchall phrase tacked

on at the end of a long and detailed list of specific

directions” should not necessarily be “afford[ed] … the

broadest possible construction it can bear” but “must

be interpreted in light of its surrounding context”).

Constitutional-avoidance principles also militate

against embracing the unbounded interpretation

adopted by the decision below. After all, “[w]hen ‘a

serious doubt’ is raised about the constitutionality of

an Act of Congress, ‘it is a cardinal principle that this

Court will first ascertain whether a construction of the

statute is fairly possible by which the question may be

avoided.’” Jennings v. Rodriguez, 583 U.S. 281, 296

(2018) (quoting Crowell v. Benson, 285 U.S. 22, 62

(1932)). This principle applies as much to

nondelegation concerns as to any other form of

constitutional doubt. See Indus. Union Dep’t, AFLCIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980)

(plurality opinion) (explaining that “[a] construction of

[a] statute that avoids th[e] kind of open-ended grant”

that raises nondelegation concerns “should certainly

be favored”); Nat’l Cable Television Ass’n v. United

States, 415 U.S. 336, 342 (1974) (reading a statute

“narrowly to avoid [nondelegation] problems”).

Accordingly, the Telecommunications Act is best

read to authorize the executive to create programs—

and only those programs—that further Congress’s

express policy aim of providing affordable, nationwide

telecommunications access and to create a USF that

is large enough—but not larger than reasonably

necessary—to fund those programs adequately. The

FCC has implemented the Act within these

boundaries. And as explained above, this limited

grant of authority within a specified domain to

achieve a specified purpose easily satisfies the

constitutional requirements established by this

Court’s nondelegation precedents.

III. Invalidating the USF on nondelegation

grounds would imperil any number of

longstanding congressional schemes.

Accepting respondents’ argument that the

Telecommunications Act violates nondelegation

principles would require breaking from this Court’s

precedents, see supra Part II, and effect a sea change

in constitutional law with enormous ramifications.

Such a holding could deny Congress “the necessary

resources of flexibility and practicality, which …

enable it to perform its function in laying down

policies and establishing standards, while leaving to

selected instrumentalities the making of subordinate

rules within prescribed limits.” Panama Refining Co.,

293 U.S. at 421. And it could call into question the

constitutionality of a host of longstanding statutory

schemes that readily pass muster under this Court’s

existing precedents.

For example, just as Congress has empowered the

FCC to utilize its expert judgment to determine which

telecommunications services have become sufficiently

“essential” to fall subject to the statutory universalservices mandate, 47 U.S.C. § 254(c)(1)(A), Congress

has granted executive agencies broad discretion to

decide which tobacco products should be subject to

certain marketing regulations, 21 U.S.C. § 387a(b),

which plant or animal species are sufficiently at risk

of extinction to receive certain statutory protections,

16 U.S.C. § 1533(a)(1), and which executive, administrative, or professional employees should be exempt

from statutory wage-and-hour protections, 29 U.S.C.

§ 213(a)(1).

Meanwhile, Congress’s grant of authority to the

FCC to determine what rates are “just, reasonable,

and affordable” for the covered services, 47 U.S.C.

§ 254(b)(1), echoes Congress’s decision elsewhere to

empower the FCC to “determine and prescribe what

will be the just and reasonable charge” for common

carriers to impose for services, as well as what

“practice[s] [are] or will be just, fair, and reasonable”

for common carriers to follow, id. § 205(a). Such a

grant of authority is not at all unusual. Other

agencies, such as the Federal Energy Regulatory

Commission and the Federal Maritime Commission,

enjoy comparable discretion to establish “just and

reasonable” rates for commercial actors within their

respective domains. 15 U.S.C. § 717d(a) (natural-gas

companies); 46 U.S.C. § 40701(b) (ocean carriers).

More broadly, the FCC’s authority to implement

programs that are “necessary and appropriate” to

carry out the statutory purpose embodied in the Telecommunications Act, 47 U.S.C. § 254(b)(7), is the sort

of delegation that is ubiquitous throughout the U.S.

Code. For example, Congress has empowered the

Consumer Product Safety Commission to promulgate

safety standards that are “reasonably necessary to

prevent or reduce an unreasonable risk of injury,” 15

U.S.C. § 2056(a), and has authorized the Occupational

Safety and Health Administration to promulgate “any

occupational safety or health standard,” 29 U.S.C.

§ 655(b), that is “reasonably necessary or appropriate

to provide safe or healthful employment,” id. § 652(8).

Other examples are legion. See, e.g., 12 U.S.C.

§ 5531(b) (authorizing the Consumer Financial

Protection Bureau to promulgate rules that are

necessary to prevent “unfair, deceptive, or abusive

acts or practices” related to certain consumer

transactions); 15 U.S.C. § 78k-1(a)(2) (authorizing the

Securities and Exchange Commission to “facilitate the

establishment of a national market system for

securities” with “due regard for the public interest, the

protection of investors, and the maintenance of fair

and orderly markets”); 29 U.S.C. § 628 (authorizing

the Equal Employment Opportunity Commission to

establish “reasonable exemptions” to the Age Discrimination in Employment Act where they are “necessary

and proper in the public interest”); 31 U.S.C.

§ 5111(a)(1) (authorizing the Secretary of the

Treasury to mint and issue coins “in amounts the

Secretary decides are necessary to meet the needs of

the United States”); 42 U.S.C. § 300g-1(b)(1)(A)(iii)

(authorizing the EPA Administrator to issue drinkingwater regulations that “present[] a meaningful

opportunity for health risk reduction”).

Furthermore, just as the FCC has statutory authorization to collect the funds that are needed to

finance the universal-service programs that Congress

has directed it to create, 47 U.S.C. § 254(d), Congress

has elsewhere made “entirely appropriate delegations

of discretionary authority” for executive agencies to

assess and collect monetary charges to support their

operations, Skinner v. Mid-Am. Pipeline Co., 490 U.S.

212, 222 (1989). For example, the Secretary of the

Interior has statutory authority to set recreation fees

at certain federal lands according to certain factors,

such as “the benefits and services provided to the

visitor,” 16 U.S.C. § 6802(b)(1), and “such other factors

or criteria as determined appropriate by the

Secretary,” id. § 6802(b)(6). Congress has similarly

authorized the National Credit Union Administration

Board to charge operating fees to federal credit unions

according to a schedule of the Board’s creation that

“gives due consideration to the expenses of the

Administration in carrying out its [statutory]

responsibilities.” 12 U.S.C. § 1755(b). And the

Comptroller of the Currency may impose charges on

certain regulated entities “as the Comptroller

determines is necessary or appropriate to carry out

the responsibilities of the [Comptroller’s] Office.” 12

U.S.C. § 16. Here too, the list could go on and on. See,

e.g., 7 U.S.C. § 473d (authorizing the Secretary of

Agriculture to charge “reasonable” fees for certain

cotton-testing services); 21 U.S.C. § 136a(a)(1)

(authorizing the Secretary of Agriculture to charge

fees “sufficient” to fund certain quarantine and

inspection programs); 31 U.S.C. § 9701(b) (generally

authorizing agency heads to promulgate rules

establishing fees for government services that are

“fair” and are based on, among other things, “public

policy” and “other relevant facts”).

While all of these statutory schemes differ in their

particulars, the variety of mechanisms that Congress

has devised to ensure that its legislative directives are

efficiently carried out only underscores the “wisdom”

of this Court’s longstanding acceptance that Congress

must be allowed flexibility with respect to the breadth

or narrowness of the directives it issues to the

executive. Gundy, 588 U.S. at 148 (plurality opinion).

Were this Court now to reverse course and require

that Congress cabin executive discretion to an

unprecedented degree, countless statutes would need

to be reevaluated—and potentially invalidated—

under a novel and untested nondelegation standard.

The prospect of such practical disruption serves as an

apt illustration of the harm that such a standard

would inflict on the delicate balance that the Constitution has struck among the branches of government.

CONCLUSION

The decision below should be reversed.

Respectfully submitted,