The CRA provides a fast-track mechanism for Congress to repeal new agency regulations that it is opposed to. But a CRA joint resolution passed by Congress is still subject to the signature or veto of the President. For further background on the CRA, see FSF Board of Academic Advisors’ Member Daniel Lyons' June 2018 Perspectives from FSF Scholars, "The Congressional Review Act and the Toxic Politics of Net Neutrality."
As explained in further detail in the Free State Foundation’s February 2023 public comments and March 2023 and April 2023 reply comments filed in the FCC's proceeding on digital discrimination, Section 60506 of the Infrastructure Investment and Jobs Act authorizes the Commission to facilitate equal access to broadband insofar as it is technically and economically feasible. And the Act directs the Commission to adopt rules prohibiting intentional digital discrimination of access against individuals of protected classes such as race, religion, ethnicity, and income level. But the Act does not contain language authorizing liability based on unintentional disparate impact.
Moreover, there is zero evidence of digital discrimination of access taking place and it's contrary to the financial interests of ISPs to deny would-be subscribers access to engage in for. The Commission's rule will not expand or speed up deployment to more Americans. And if allowed to stand, the agency's rule will subject nearly every broadband ISP business and network decision to scrutiny under the agency's rule. This will most likely deter investment in the infrastructure buildout to harder-to-reach areas.
In short, the FCC's digital discrimination rule is well suited for the CRA joint resolution of disapproval. The House should pass it.
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