Yesterday, as predicted, the Supreme Court granted certiorari in Federal Communications Commission v. Consumers' Research (consolidated with SHLB Coalition v. Consumers' Research). This case arises out of challenges to the constitutionality of the FCC's Universal Service Fee, and may produce a major administrative law decision–but the Court also gave itself an out.
As I noted here, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, concluded that the fee is unconstitutional. By a vote of 9-7, the court concluded that this fee is, in effect, a tax, and that insofar as the level of the fee is set by a private entity (the Universal Service Administrative Company), this violates the nondelegation doctrine.
As is nearly always the case when a federal court concludes a federal statute is unconstitutional, the Solicitor General filed for certiorari, and certiorari was granted. Here, the SG's petition posed three questions:
