Free State Foundation President Randolph May and Director of Policy Studies Seth Cooper issued the following statement regarding the FCC’s adoption of a Notice of Proposed Rulemaking in its Digital Discrimination proceeding:
“There is no disagreement that there should be equal access to broadband for all the people of the United States and that digital discrimination should be prevented. But it is unnecessary, and likely to be counterproductive to achievement of that worthy objective, for the Commission to adopt a rule which allows discrimination to be proved based on a showing of unintentional 'disparate impact' rather than on a showing of intentional discrimination. And it is likely that a rule adopting a ‘disparate impact’ test wouldn’t survive a judicial challenge because the text and structure of the Infrastructure Act, along with relevant judicial precedents, require an intent-based definitional standard to prove digital discrimination.”
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