On June 23, the Federalist Society hosted a webinar titled "The FCC's Digital Discrimination Rulemaking: Facilitating Equal Access to Broadband Services." Video and audio of the event are now available for streaming and download:
Free State Foundation President Randolph May moderated the discussion amongst panel participants Harold Feld of Public Knowledge, Clint Odom of T-Mobile, and myself. The webinar included discussion of the FCC's authority under Section 60506 of the Infrastructure Investment and Jobs Act of 2021. Does Section 60506 confer authority on the agency to adopt rules that would impose liability on broadband providers based only on a showing of unintentional disparate impact? Or does the statute require evidence of intentional discrimination. And what effect might disparate impact liability have on efforts to ensure equal access to broadband Internet services? Check out the online video or listen to the podcast to hear thoughtful insights on these and related matters.
In public comments and reply comments filed with the FCC in its digital discrimination rulemaking proceeding, FSF President Randy May and I concluded that Section 60506 of the Infrastructure Act contains an intent-based standard for rules prohibiting digital discrimination, and that the text of statute does not support the imposition of unintentional disparate impact liability on broadband Internet service providers. During the webinar event, I emphasized that Section 60506 contains specific language that calls for an intent-based anti-discrimination rules and that the statute does not contain hallmark catchall terms that courts have identified as authorizing or permitting unintentional disparate impact claims. For discussion about that issue more, check out the webinar.
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