Fifth Circuit’s FCC Ruling Ripe for SCOTUS Review

A fractured en banc ruling from the Fifth Circuit that created a split among the federal appellate courts and struck down as unconstitutional the Federal Communications Commissions’ delegation of taxing authority to a third party seems destined for U.S. Supreme Court review, observers say.

The 9-7 ruling that included two concurrences and two dissents came Wednesday in Consumers’ Research v. FCC. The Fifth Circuit majority focused on the “double-layered delegation” of the authority to set the tax rate for the universal service fund, which is used to subsidize phone and internet services for rural and low-income areas, as well as schools, hospitals and libraries, across the country.