The FCC and the Biden Administration both acknowledge that there is no evidence in the record or otherwise that Internet service providers intentionally have discriminated based on income or otherwise in deploying broadband facilities or providing access to broadband networks. So, rather than using this finding as a point of departure for establishing a sensible framework to prevent any digital discrimination that may occur in the future, the Commission opts to use it as a basis for perhaps the most far-reaching unauthorized power grab in the history of the agency. The foundation upon which the Commission's Democrat majority hopes to rest this power grab is the adoption of a "disparate impact" standard, rather than a disparate treatment standard. Based on existing judicial precedent, I predict the courts will find this a shaky foundation indeed.
As astonishing as it may seem, it is no exaggeration to say that the Commission claims for itself the power to regulate all — yes, all — aspects of the policies and practices of Internet providers, including a provider's decisions regarding deployment, network reliability, network maintenance, the equipment it distributes to customers, pricing, promotional discounts, customer service, language options, credit checks, marketing and advertising, and more. And, as astonishing, the Commission claims the power to regulate the policies and practices of landlords, banks, construction firms, unions, advertising, and other business sectors. The order makes clear that, for Internet providers and for those firms that have no idea even where the FCC is located, the list of policies and practices which the agency claims the right to examine, and the list of businesses covered, is non-exhaustive.
Indeed, the FCC actually touts "the long tail of intangible variables" that can't be foreseen as a justification for placing no tangible limits on the power it asserts to regulate all aspects of the operations of all the businesses now within its sights.
Anyone who doesn't foresee that the Commission's order will lead to rate regulation, however denominated, of Internet providers is engaging in willful blindness. The Commission has emphasized it will examine a provider's pricing, and, in assessing "economic feasibility," it will consider the provider's projected income, expenses, demand, and expected rate of return. Those factors are at the core of regulating the rates charged by public utilities — which the FCC now has no hesitancy in admitting that’s what it is determined for Internet providers to be. It's difficult to see how the agency will not get bogged down in years-long proceedings that resemble old-fashioned utility rate cases.
Finally, what ought to be as disturbing as anything else is the certainty that the effect of the order will be to curtail the investment and innovation which should be the primary objective of government policy, including promoting equal access.
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