Supreme Court of the Anited States CONSUMERS’ RESEARCH,e¢al., Vv.

FEDERAL COMMUNICATIONS COMMISSION,etal., Respondents.

Petitioners,

I HEREBY CERTIFYthatall parties required to be served, have been served, on this 30" day ofNovember, 2023, in accordance with U.S. SupremeCourt Rule 29.3, three (3) copies ofthe foregoing BRIEF OF AMICI CURIAE COMPETITIVE ENTERPRISE INSTITUTE,et al. INSUPPORT OF PETITIONERSbyplacing said copies in the U.S. mail, first class postage prepaid, addressed as attached.

Pyareeeet oh.

The Constitution does not permit Congress to circumvent the legislative process by allowing an independent agency (guided by a private company owned by an industry trade group) to raise and to spend however much money it wants every quarter for “universal service” at the expense of every American who pays a monthly phone bill.

Essentially, the FCC provided certain “carriers with valuable insulation from competition and reduced civil and criminal liability in exchange for governmental authority to regulate prices, revenues, and many other aspects of a carrier’s corporate and operational behavior.” Robert M. Frieden, Universal Service: When Technologies Converge and Regulatory Models Diverge, 13 Harv.

Those difficult policy choices include not only setting the amount of quarterly “contributions” that service providers (actually their customers) must pay the government, but also picking the specific recipients who ultimately receive a portion of the billions of dollars that get collected and distributed each year.

For example, nearly forty years ago, Congress enacted a statute that directed the Secretary of Transportation to establish a schedule of annual fees for safety “based on the usage, in reasonable relationship to volume-miles, miles, revenues, or an appropriate combination thereof, of natural gas and hazardous liquid pipelines.” Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 214 (1989) (quoting Section 7005(a)(1) of the Consolidated Omnibus Budget Reconciliation Act of 1985).

November 30, 2023 telecommunications services to high-cost residences, schools, libraries, or rural medical facilities— encompasses precisely the hard choices that must be made by the elected representatives of the people, not a private company controlled by interested parties.

Indeed, “[o]f all ‘principle[s] in our Constitution,’ none is ‘more sacred than . . . that which separates the legislative, executive and judicial powers.’” Allstates Refractory Contractors, LLC v. Su, 79 F.4th 755, 769 (6th Cir. 2023) ...

12 As Paul Larkin has suggested, there may well be “multiple nonexclusive” nondelegation principles that, if enforced, would “force Congress to do its job, to prevent the President from doing Congress’s work, and to avoid taking on that ...

SSupremee Courtt off thee Unitedd Statess

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

As required by Supreme Court Rule 33.1(h), I certify that the document contains 5,942 words, excluding parts of the document that are exempted by Supreme Court Rule 33.1(d).

I declare under penalty of perjury that .

the foregoing is true and correct.

I, Markham S. Chenoweth, counsel for amicus curiae the New Civil Liberties Alliance, and a member of the bar of this Court, hereby certify pursuant to Supreme Court Rule 33(g) and (h) that amicus curiae brief complies with the word limitations imposed by those rules.

According to the word processing system used to prepare the brief (Microsoft Word), the brief’s word count is 5,341, not including the cover, table of contents, table of authorities, and signature block.

Supreme Court of the Anited States

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

As required by Supreme Court Rule 33.1(h), I certify that the document contains 5,474 words, excluding the parts of the document that are exempted by Supreme Court Rule 33.1(d).

I declare under penalty of perjury that the foregoing is true and correct.

District of Columbia My commission expires March 14, 2028.

I HEREBY CERTIFYthat on November 30, 2023, three (3) copies of the BRIEF OF AMICUS CURIAE AMERICANS FOR PROSPERITY FOUNDATION IN SUPPORT OF PETITIONERSin the above-captioned case were served, as required by U.S. Supreme Court Rule 29.5(c), on the following:

801 17th Street, N.W.

1115 H Street, N.E.

District of Columbia

Counsel for amicus curiae notified Petitioner and Respondent of its intention to file this brief on November 16, 2023. enforcement of the constitutional mandate that legislative power be exercised by Congress or not at all.

NCLA agrees with Petitioners that 47 U.S.C. § 254, which allows the Federal Communications Commission (“FCC”) to dynamically contour its own scope of power and to self-fund a multi-billion dollar social program, violates core constitutional principles and warrants this Court’s attention.

Modern application of the doctrine, however, serves the opposite function; it purports to legitimize statutes that grant the executive branch the power to enact general prospective laws with all the hallmarks of legislation.

… Even Justice Douglas, one of the fathers of the administrative state, came to criticize excessive congressional delegations in the period when the intelligible principle ‘test’ began to take hold”) (Gorsuch, J., dissenting) (citations omitted).

Check Cashing, 33 F.4th at 232 (Jones, J., concurring) (“Because the CFPB is a perpetually self-funded agency armed with vast executive authority, its structure defies congressional oversight and is incompatible with the Constitution.”).

November 22, 2023 The Honorable Scott S. Harris Clerk Supreme Court of the United States One First Street, N.E.

Washington, DC 20543 Re: Consumers’ Research, et al. v. Federal Communications Commission, et al., No. 23-456 Dear Mr. Harris: We write pursuant to Rule 30.4 of the rules of this Court on behalf of Respondents Schools, Health & Libraries Broadband Coalition; USTelecom – The Broadband Association; Competitive Carriers Association; National Telecommunications Cooperative Association dba NTCA – The Rural Broadband Association; Benton Institute for Broadband & Society; National Digital Inclusion Alliance; and Center for Media Justice dba MediaJustice (together, “Intervenor Respondents”) in the above-captioned case to request a 30-day extension of time to file a brief in opposition to the petition for a writ of certiorari.

The Court docketed the petition on October 31, 2023, and a response is currently due November 30, 2023.

Intervenor Respondents seek this extension in order to coordinate their filings in response to the petition for certiorari and because counsel have existing obligations in numerous pending cases and regulatory proceedings.

Moreover, Respondents Federal Communications Commission and United States of America have filed a motion seeking the same extension, and grant of this extension alongside those Respondents’ motion would set the same due date for all Respondents’ briefs in response to the petition.

U.S. Department of Justice Office of the Solicitor General

Honorable Scott S. Harris Clerk Supreme Court of the United States Washington, D.C. 20543

We respectfully request, under Rule 30.4 of the rules of this Court, an extension of time to and including January 2, 2024, for all respondent, within which to file a response.

This extension is requested to complete preparation of the response, which was delayed because of the heavy press of earlier assigned cases to the attorneys handling this matter.

Sincerely, Elizabeth B. Prelogar Solicitor General

TechFreedom frequently offers expert commentary both on the Universal Service Fund, see, e.g., James Dunstan, The FCC, USF, and USAC: An Alphabet Soup of Due Process Violations, Center for Growth and Opportunity, https://tinyurl.com/2nbrtvj3 (Apr. 23, 2023); Comments of TechFreedom, In re Report on the Future of the Universal Service Fund, FCC WT Dkt No. 21-476 (Jan. 18, 2022); and on nondelegation, see, e.g., Corbin K. Barthold, A Path Forward on Nondelegation, WLF Legal Pulse, https://bit.ly/3L EdfSe (Jan. 31, 2022).

Codified in the Telecommunications Act of 1996, the USF pays for “‘advanced telecommun- ications and information services,’ particularly high- speed internet access, for schools (as well as for libraries and rural health care providers).” City of Springfield v. Ostrander (In re LAN Tamers, Inc.), 329 F.3d 204, 206 (1st Cir. 2003) (quoting 47 U.S.C. §§ 254(b)(6), (h)(1)).

A slightly longer explanation is that the Framers made laws difficult to pass in order to promote liberty, encourage deliberation, protect minorities, guard against faction, and ensure accountability (this last goal being one to which we will return).

It has been argued that “the doctrine of forbidding delegation of public power to private groups is, in fact, rooted in a prohibition against self- interested regulation that sounds more in the Due Process Clause than in the separation of powers.” Ass’n of Am. Railroads, 721 F.3d at 671 n.3 (quoting A. Michael Froomkin, Wrong Turn in Cyberspace: Using ICANN To Route Around the APA and the Constitution, 50 Duke L.J.

Congress can avoid making “a pure delegation of legislative power” by “enjoin[ing] upon [the agency] a certain course of procedure and certain rules of decision in the performance of its function.” Panama Refining Co. v. Ryan, 293 U.S. 388, 432 (1935) (quoting Wichita R.R.

I, Corbin K. Barthold, counsel for amicus curiae TechFreedom and a member

of the Bar of this Court, certify under Supreme Court Rule 33(g) and (h) that amicus’s brief complies with the word limits imposed by those rules.

According to the word-processing software used to prepare the brief (Microsoft Office 365), the brief’s word count is 4,061 excluding the cover, table of contents, table of authorities, and signature block.

There is zero evidence of this, and the Sixth Circuit cited none.

5 Nonetheless, even if the Q4 2021 Contribution Factor is not a final order, we agree with Petitioners that the Q4 2021 Contribution Factor reapplies prior final FCC actions that restart the sixty-day clock.