Regarding the WiFi Hotspot CRA, Focus on the Law

By Randolph May

By and large, the opponents' reactions to Senate passage of the Congressional Review Act resolution to overturn the FCC's rule that purported to expand COVID-era funding for WiFi hotspots are misguided – and they illustrate what's wrong with much left-leaning advocacy. The reactions focus on the supposed ill-effects, as a matter of policy, of curtailing funding for WiFi hotspots outside of the E-Rate program's authorization of "classrooms" and "libraries." The opponents ignore what ought to be the most important point: The FCC's rule overturned by the CRA resolution exceeded the agency's authority.

Typical of the reaction is the statement issued by FCC Commissioner Anna Gomez. She says: “Sadly, this vote will only deepen that divide by stripping away one of the few remaining tools available to schools and libraries to help students and seniors access the internet—whether to do their homework, apply for jobs, or consult with a doctor." I don't necessarily agree with her conclusion, or similar sentiments she expresses regarding the extent of what she sees as the extent of the "digital divide." But those are matters of policy that are proper subjects for discussion and debate.

But the proper place for resolution of those policy debates regarding the WiFi hotspots extension funding is in Congress. There's simply not a credible argument that, once the COVID-era emergency WiFi funding had expired, the FCC could simply undertake to rewrite the English language by interpreting the statutory terms "classrooms" and "libraries" to include any remote location on the same planet. That's a linguistic stretch way too far.

Of course, this doesn't mean that Congress cannot – and should not – authorize funding along the lines that Commissioner Gomez and her allied CRA opponents wish to see. But it is does mean that the Senate did the right thing in adopting the CRA. And it does mean that the House should follow suit.  

Joint Resolution in House Would Repeal FCC's New Title II Order

On May 23, Rep. Bob Latta announced that he had introduced a Congressional Review Act (CRA) joint resolution of disapproval to overturn the FCC's Safeguarding and Securing the Open Internet Order. By a 3-2 vote, the Commission reclassified broadband Internet access services as "telecommunications services" under Title II of the Communications Act, subjecting advanced broadband networks to public utility regulation. 

Rep. Latta deserves credit for introducing this CRA joint resolution. The House of Representatives should give the legislation due consideration. 

 

The CRA provides a fast-track process for Congress to repeal new agency regulations. For helpful background on the CRA in the context of broadband regulatory policy, 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."

 

The Free State Foundation filed public comments and reply comments with the FCC in opposition to public utility regulation. Several Perspectives from FSF Scholars have been published critiquing the imposition of public utility restrictions on broadband Internet networks," including my May 21 Perspectives, "The FCC's New Title II Order Allows Harmful Rate Regulation."

Joint Resolution in Senate Would Repeal FCC's Digital Discrimination Rule

On March 14, Sen. Ted Cruz introduced S.J.Res. 64, Congressional Review Act (CRA) joint resolution of disapproval to overturn the FCC's digital discrimination regulation. By a 3-2 vote, the Commission adopted a November 2023 Order to implement the Infrastructure Investment and Jobs Act's directive that the Commission facilitate equal broadband access insofar as it is technically and economically feasible.

The Infrastructure Act requires the Commission to adopt rules prohibiting intentional digital discrimination of access against individuals of protected classes such as race, religion, ethnicity, and income level. However, the Commission exceeded its statutory mandate by imposing unintentional disparate impact liability on broadband Internet service providers (ISPs) and subjecting nearly every facet of broadband network operations and business to agency scrutiny without clear safe harbors. 

 

A similar CRA joint resolution of disapproval – H.Res.107 – was introduced by Reps. Earl L. "Buddy" Carter and Andrew Clyde back on January 30 of this year. That resolution was the subject of a February 6 blog post. If passed by Congress and signed into law, the CRA would result in the repeal of the FCC's digital discrimination rule. As observed in a February 14 blog post, the FCC's November 2023 Order is also the subject of consolidated litigation that is pending in the U.S. Court of Appeals for the Eighth Circuit. 

 

The FCC's digital discrimination proceeding is ongoing. In its November 2023 further notice of proposed rulemaking, the Commission proposed additional "affirmative obligations" for reporting and internal compliance program requirements. The Commission also has proposed the creation of a Civil Rights Office with a roving mandate to police digital discrimination. But as Free State Foundation President Randolph May and I explained in our March 4, 2024, public comments, the record shows no evidence that digital discrimination is taking place. The agency's proposals, if adopted, would not confer any real benefit on Americans of any class but would instead amount to an unjustified further expansion of agency power over the private marketplace. 

 

Notably, the FCC's digital discrimination rule was a subject of discussion and debate at the Free State Foundation's Sixteenth Annual Policy Conference – #FSFConf16 – held on March 12, 2024. For more, check out the video of the hot topics communications law and policy panel, as well as the video of the inaugural TMR vidcast hosted by former FCC Commissioner Michael O'Rielly: 

House Votes to Repeal FCC's Problem-Riddled Privacy Rules

The U.S. House of Representatives approved a resolution to repeal the FCC's restrictive and uneven broadband privacy rules. House Resolution 230 is based on the Congressional Review Act (CRA), and sponsored by Rep. Mike Burgess. The Senate passed a similar resolution on March 23. Presidential approval of the repeal is now expected.

The FCC's broadband privacy rules saddled broadband Internet service providers (ISPs) – but not other online service providers that collect consumer information – with intrusive requirements. The Commission provided no justification for such lopsided rules and such restrictions would have had the effect of reducing available choices for consumers. Significant policy flaws with the Commission's privacy rules were addressed in further detail in several prior Free State Foundation publications listed below. In addition, those rules were legally suspect. The Commission's primary source of claimed authority for adopting them – Section 622 – specifically addressed subscriber information collected exclusively by telephone service providers.

Professor Daniel Lyons, a member of FSF's Board of Academic Advisors, also offered an excellent analysis of the FCC's problematic rules and the way forward in his Perspectives from FSF Scholars paper, "The Right Way to Protect Privacy Throughout the Internet Ecosystem."

Once the Commission's broadband privacy rules are repealed, the agency can adopt a more sensible set of privacy standards that mirror those applied by the Federal Trade Commission. In today's convergent digital marketplace, there is no reason to think that consumers want different online privacy standards to apply to the collection and use of personal information depending simply on whether the service provider is an ISP or "edge" provider. As a follow-up to the CRA repeal of the FCC's broadband privacy rules, Congress should consider legislation to establish the FTC as the common enforcer of a common set of privacy standards for all online service providers.

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Prior FSF publications on FCC privacy policy:

Daniel A. Lyons, "The Right Way to Protect Privacy Throughout the Internet Ecosystem," Perspectives from FSF Scholars, Vol. 12, No. 10 (March 24, 2017)

Reply Comments of the Free State Foundation – Petitions for Reconsideration, Protecting the Privacy of Customers of Broadband And Other Telecommunications Services (March 16, 2017).

Michael J. Horney, "FCC Privacy Rules Would Harm Consumers by Creating Barriers for ISP Advertising," Perspectives from FSF Scholars, Vol. 11, No. 28 (August 3, 2016).

Comments of the Free State Foundation, Regarding Protecting the Privacy of Customers of Broadband and Other Telecommunications Services, (May 31, 2016).

Seth L. Cooper, "FCC's Internet Privacy Power Grab Unsupported by Law," FSF Blog (October 23, 2015).

Randolph J. May and Seth L. Cooper, "Any New Privacy Regime Should Mean An End to FCC Privacy Powers," Perspectives from FSF Scholars, Vol. 7, No. 9 (April 5, 2012).

Senate Passes Resolution to Repeal FCC's Problematic Privacy Rules

The U.S. Senate has now passed legislation to repeal the FCC’s flawed broadband privacy rules. S.J.R. 34 is based on the Congressional Review Act, and sponsored by Sen. Jeff Flake. The Senate’s passage of S.J.R. 34 is a welcome step toward establishing a single set of sound standards for online privacy that would apply to all online service providers.

The Commission arbitrarily imposed its intrusive privacy rules on broadband Internet broadband service providers, but not on other online service providers that collect personal information. Its rules include a problematic opt-in mandate only for ISPs seeking access to consumer information. That onerous opt-in mandate will confuse consumers and restrict the choices and amount of information that would otherwise be made available to them. Under the rules, the Commission also retains authority to review discounts and other so-called “pay for privacy” offers – but with no clear set of factors to guide its review. Such an open-ended review authority will also discourage new offerings that could benefit consumers. And the Commission’s broadband privacy rules far exceed the agency’s lawful authority under Section 222.  

These significant policy and legal shortcomings of the FCC’s broadband privacy rules were described more extensively in Reply Comments submitted to the Commission by Free State President Randolph May and I on March 16. Our Reply Comments were filed in response to Petitions for Reconsideration of the Broadband Privacy Order (2016) – which the Commission is now evaluating. Of course, reconsideration of the Order by the Commission would be a moot point if S.J.R. 34 is passed by Congress and signed by the President.

Hopefully, the U.S. House of Representatives will follow the Senate’s lead and promptly consider repealing the FCC’s broadband privacy rules under the CRA. Repeal of the FCC’s broadband privacy rules is a necessary first step toward establishing a sound policy for online privacy. Ultimately, the FTC should become the common enforcer of online privacy, applying the same basic standards to all online service providers.