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The Federal Communications Commission (FCC) will vote on an order regarding digital discrimination at its Wednesday November 15thmeeting. The order is incredibly (and impermissibly) vague and broad. The move threatens to derail the Biden administration’s goals of closing the digital divide with sweeping regulations on conduct involved in deploying broadband service.   

FCC Commissioner Brendan Carr recently described the plan as “an expansive and disfavored theory of liability that Congress neither directed nor authorized the FCC to adopt.”

Carr noted that Section 60506 of the Infrastructure Investment and Jobs Act (IIJA) states that it is the policy of the United States, insofar as technically and economically feasible, for subscribers to benefit from equal access to broadband. That section directs the FCC to adopt rules to facilitate that equal access and to prevent and eliminate digital discrimination based on income level, race, ethnicity, color, religion or national origin. 

Despite two years and several rounds of comments that led the FCC to conclude that “there is little or no evidence” to indicate intentional discrimination, the commission intends to move forward with rules that could impose “potentially unbounded liability,” as Carr calls it, if the agency judges actions of providers result in a disparate impact. 

“Reading this theory of liability into the law conflicts with the Supreme Court’s civil rights precedent,” Carr said. “The FCC should not adopt it.”

The Taxpayers Protection Alliance (TPA) previously noted that while it is important that providers do not intentionally discriminate against legally protected groups, Chairwoman Jessica Rosenworcel’s proposal goes too far in using the disparate impact standard, which holds providers accountable for unintentional actions that ultimately lead to discrimination.

TPA called the plan a slippery slope that could unfairly place blame on providers for digital divides, pointing out that a provider could be called to task under the disparate impact standard for not serving a rural area with a mostly nonwhite population. This would be despite that fact that the same scenario often occurs in other rural areas with majority white populations due to the economics of serving low-population areas.

Former FCC Chief Economist Glenn Woroch examined Form 477 data showing wireline deployment at the census block level and found that 93.8 percent of nonwhite households received broadband service at the 100Mbps/20 Mbps level compared to 88.8 percent of white households. Woroch also found that income level didn’t affect access because both those populations above and below the federal poverty guidelines had access to broadband at about a 90 percent rate. The simple explanation for the findings is that cities, which enjoy more broadband deployment, have a higher nonwhite population than rural areas. 

Digital Liberty Executive Director James Erwin noted in a recent op-ed that one page of the IIJA from elected representatives tasks the FCC with creating the digital discrimination rules, which morphed into a 218-page order from unelected bureaucrats that is likely to raise eyebrows at the U.S. Supreme Court. 

“What makes this even worse is that Congress clearly did not intend for one page of an infrastructure bill to be used as justification to overhaul civil rights law in a manner inconsistent with recent legal precedent,” Irwin wrote. 

The commission’s order is also incredibly far-reaching, giving itself the ability to regulate so many aspects of a service provider’s functions, from network infrastructure deployment and reliability to speeds, data caps and mandatory arbitration clauses. 

One of the bigger sticking points of the order is the FCC’s ability to regulate pricing. The commission removed some language from the upcoming Title II order that would have given it the ability to regulate broadband rates, but that language wasn’t really needed because it is in the digital discrimination order. The result is the FCC engaging in unlawful price regulation by including price in the covered elements of service in this order.  

Carr called the move a plan to give the “Administrative State effective control of all Internet services and infrastructure.”

In a time when tens of billions of taxpayer dollars are being allocated to close the broadband gap, the FCC is concocting overly broad and vague rules that will only deter innovation and deployment. The commission should vote no on this order.

Johnny Kampis is director of telecom policy for the Taxpayers Protection Alliance.

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