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:
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