“Digital discrimination” order is a major abuse of the agency’s power

WASHINGTON, D.C. – U.S. Senate Commerce Committee Ranking Member Ted Cruz (R-Texas) and 27 of his colleagues are calling on the Federal Communications Commission (FCC) to rescind its draft order on “Digital Discrimination,” which would give the federal government control over nearly every aspect of the Internet while opening broadband providers to expansive, indeterminate, and crippling liability under a “disparate impact” standard. The FCC is set to vote on the final order on Wednesday.  

In a letter to FCC Chairwoman Rosenworcel, the Senators wrote: 

“Your Draft Order, which largely follows a Biden administration diktat, will create crippling uncertainty for the U.S. broadband industry, chill broadband investment, and undermine Congress’s objective of promoting broadband access for all Americans. We urge you to adhere to the will of Congress and conform to the plain meaning of [the bipartisan infrastructure bill] to avoid causing serious damage to the competitive and innovative U.S. broadband industry.” 

While the bipartisan Infrastructure Investment and Jobs Act (IIJA) instructed the FCC to “prevent digital discrimination of broadband access based on income level, race, ethnicity, color, religion, or national origin,” the draft rules are untenably broad and inconsistent with the plain meaning of the statute. Moreover, the Biden administration itself has appeared to acknowledge that there’s little to no documented evidence of disparate treatment as it relates to broadband. 

“Apparently displeased by that result, the Biden administration instructed the FCC to broaden its inquiry under section 60506,” the Senators wrote. “Your recently circulated Draft Order follows suit, perversely worrying that section 60506 would be ‘largely meaningless’ if interpreted by its plain language.  The corresponding rules—buttressed by the theory that the lack of actual discrimination somehow authorizes the FCC to redefine digital discrimination to expand its authority—turn section 60506 on its head and constitute a major abuse of the agency’s power.” 

If adopted, nearly every aspect of the broadband business—including a broadband provider’s deployment decisions, network reliability, network maintenance, the equipment it distributes to customers, pricing, promotional discounts, customer service, language options, credit checks, marketing and advertising, and more—will be subject to potential FCC enforcement actions, including multi-million dollar forfeitures and injunctive orders, under a disparate impact standard. As the lawmakers pointed out, such a standard of liability is unlawful. 

“Absent effects-based language, agencies cannot expand the?scope of a?statute to impose disparate impact liability. This is for good reason: disparate impact liability must be limited so as not to punish ‘the practical business choices and profit-related decisions that sustain a vibrant and dynamic free enterprise system.’  The FCC has no authority to ignore the plain meaning of the IIJA.” 

The Senators also argued that the draft order would ultimately hurt broadband deployment in the U.S. 

“The idea these regulations will not impact rural deployment defies credulity: If practically every business decision is subject to potential liability, companies will inevitably shift resources that would have otherwise been spent on deployment and innovation to hiring more lawyers and asking the FCC ‘mother-may-I.’ Your Draft Order’s sweeping scope, ambiguous, open-ended guidance, extensive enforcement framework, and expansive claimed remedial authority, would prevent providers from making such decisions without risking endless complaints and potential liability untethered from the statute’s objectives.” 

The lawmakers concluded by calling on the FCC to reverse course. 

“As you approach the statutory deadline for issuing rules to implement this section, we strongly urge you to reconsider your Draft Order. Instead, do your job: Follow the statutory text, implement rules that will incentivize rather than deter private investment, and promote rather than undermine the goal of ubiquitous broadband.” 

The full list of Senators joining Sen. Cruz in sending the letter include: Sens. John Thune (R-S.D.), Chuck Grassley (R-Iowa), Mike Lee (R-Utah), Thom Tillis (R-N.C.), JD Vance (R-Ohio), Jim Risch (R-Idaho), John Barrasso (R-Wyo.), Mike Crapo (R-Idaho), Dan Sullivan (R-Alaska), Mike Rounds (R-S.D.), James Lankford (R-Okla.), Roger Wicker (R-Miss.), Marsha Blackburn (R-Tenn.), Ted Budd (R-N.C.), Tommy Tuberville (R-Ala.), Markwayne Mullin (R-Okla.), Katie Boyd Britt (R-Ala.), Pete Ricketts (R-Neb.), Jerry Moran (R-Kan.), Joni Ernst (R-Iowa), Cynthia Lummis (R-Wyo.), Shelley Moore Capito (R-W.Va.), Todd Young (R-Ind.), Eric Schmitt (R-Mo.), Deb Fischer (R-Neb.), Kevin Cramer (R-N.D.), and Steve Daines (R-Mont.).

Read the full letter HERE. 

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