On November 22, 2024, the U.S. Supreme Court granted two petitions for certiorari to review the U.S. Court of Appeals for the Fifth Circuit’s (Fifth Circuit) en banc decision in Consumers’ Research v. Federal Communications Commission holding that the universal service support mechanisms administered by the Federal Communications Commission (FCC) are unconstitutional. The FCC and several private intervenors from the case below petitioned the Supreme Court for review, arguing that the Fifth Circuit’s decision was wrong and that the circuit split and the uncertainty generated by the decision merited the Supreme Court’s review.

Bottom Line: While the Supreme Court’s acceptance of the case for appeal was expected, the Court’s request for briefing on the mootness issue is a bit of a surprise. By raising the issue, the Court could potentially be creating a path for it to avoid having to decide the issue of the constitutionality of the Universal Service Fund.

Notably, in granting the petitions for certiorari, the Supreme Court, requested sua sponte (i.e., on its own motion) that parties should brief and argue “[w]hether this case is moot in light of the challengers’ [Consumers’ Research] failure to seek preliminary relief before the Fifth Circuit.” This request alludes to the Fifth Circuit’s en banc opinion, where it evaluated—also sua sponte—whether the challengers’ claim was moot because they had suffered a “pocketbook injury” that may no longer be redressable because of sovereign immunity.

At the time the Fifth Circuit issued its decision, the challengers had already paid their universal service contributions for the quarterly contribution rate that was at issue in the case. As the Fifth Circuit observed, claims against the federal government for monetary damages are barred by the doctrine of sovereign immunity, meaning that the challengers’ harms would no longer be redressable even if they won. The Fifth Circuit nevertheless determined that mootness did not apply because the injury was capable of repetition yet evading review. That exception to the mootness doctrine applies where: (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again. In the FCC’s petition for certiorari, the agency agreed that the exception applied and that the case was therefore not moot.

What Should We Make of the Supreme Court’s Request for Briefing and Argument on Mootness?

The Supreme Court’s request for briefing and argument on mootness can be read in two ways, both of which might be at play.

First, the Court might not be so convinced that the capable-of-repetition-yet-evading-review exception to the mootness doctrine should apply here. The Court’s mention of the “challengers’ failure to seek preliminary relief” is inviting briefing and argument on whether the case is not necessarily one that “evades review” because the challengers could have sought a stay or injunction of the contribution requirements for that quarter. (The challengers brought the suit at issue challenging only the quarterly contribution rate determination that applied for the first quarter of 2022.)

Second, the Court may have other considerations in mind. If the Court were to decide the case on the merits (rather than on mootness), then the Court would be required to reach the constitutional questions raised in the case—i.e., whether the universal service program violates the nondelegation doctrine. On the challengers’ view of the nondelegation doctrine, Congress may not delegate to the executive branch (i.e., administrative agencies) any lawmaking power. If the Court were to adopt a stronger nondelegation doctrine as the challengers’ urge, this could have potentially sweeping consequences for the so-called “administrative state” and how much Congress may rely on agencies to promulgate regulations. Given the recent cases reigning in the power of the administrative state—e.g., West Virginia v. EPA (major questions doctrine) and Loper Bright Enterprises v. Raimondo (overruling Chevron deference)—the Court may not feel particularly eager to keep up the pressure on the administrative state. However, the Court may not want to issue an opinion reaffirming Congress’s ability to delegate broad powers to agencies. Thus, deciding the case on mootness grounds would allow the Court to save the nondelegation question for another day.

What Happens if the Supreme Court Decides the Case on Mootness Grounds?

One might ask: if the Supreme Court decides that the case is moot as of the date the Fifth Circuit issued its decision below, does that mean the Fifth Circuit’s en banc decision would be vacated? The answer is likely yes. A case from December 2023, Acheson Hotels, LLC v. Laufer, shows why this is so. There, the Court held that the voluntary dismissal of the suit by the plaintiff below, while on appeal to the Supreme Court, rendered the case moot. The Court, relying on United States v. Munsingwear, Inc., remanded the case to the court of appeals with instructions to vacate the case as moot.

Thus, even though the case had not become moot until after the court of appeals issued its decision, Acheson Hotels still vacated the appeals court’s decision. Here, where the facts suggesting mootness had already arisen when the Fifth Circuit’s en banc decision was issued, the circumstances for vacating the decision would be even stronger.

How Does the Change in Administration Affect the Case?

Like so many things with a change in administration, the short answer is that it is probably too soon to tell. But we can make some educated guesses. Under the Supreme Court’s rules, a petitioner must file the opening brief within 45 days of the order granting certiorari, which would make the opening briefs due January 6, 2024. Although parties often request extensions beyond that 45-day timeframe, the current administration and solicitor general may wish to get their brief on file before the change in administration occurs on January 20, 2025.

However, under no reasonable timeline would we expect the government’s reply brief to be due until after the change in administration. That would potentially leave the new administration room to shift course. At the furthest end of the spectrum, the Solicitor General and FCC might choose to stop defending the universal service support mechanisms. In the middle, the government might shift course by arguing that the case is moot, thereby allowing the Supreme Court to save the nondelegation question for another day. (Recall that the FCC’s petition for certiorari argued the case was not moot.) It is entirely plausible that the government would continue arguing the case is not moot and that the Court should decide the nondelegation question in the government’s favor.

Of course, many aspects of the FCC’s universal service programs have historically attracted broad bipartisan support. With today’s focus on universal broadband, difficult-to-serve rural and remote areas tend to be the largest net funding recipients and, in recent years, those states have tended to vote Republican. At the same time, incoming FCC Chairman Brendan Carr’s chapter of Project 2025 criticizes the overlapping and potentially duplicative array of broadband infrastructure programs spanning numerous federal agencies, heightening the risk of overbuilding, wasteful duplication, and inefficiency. He further argues that appropriated broadband funding under the American Rescue Plan Act (ARPA) and the Infrastructure Investment and Jobs Act currently gives the federal government “more than enough resources to meet its broadband connectivity goals.”

In this context, it is at least possible that the new Administration may conclude that this moment offers more breathing room than most to force a legislative revamp of the FCC’s universal service mandate that observes stricter nondelegation limits. Certainly, the incoming Administration will, at a minimum, face conflicting political pressures in determining how to shape its Supreme Court advocacy in this case.