Today, TechFreedom filed comments to the Federal Communications Commission in response to the Petition for Rulemaking filed by FUSE, LLC (the “FUSE Petition”), requesting that the Commission begin a proceeding to establish a new Content Vendor Diversity Report (CVDR). While the goal of promoting diverse programming is laudable, the FUSE Petition raises significant constitutional issues in light of established court precedent. Further, as envisioned, the CVDR would create huge burdens on smaller entities that far outweigh the data the Commission might collect through such a reporting system. 

“The petition is too vague for the FCC to proceed,” said James E. Dunstan, TechFreedom’s General Counsel. “The Petition fails to explain exactly what services the report would apply to. Furthermore, the level of detail on the racial makeup of each of the content vendors is not well defined. Does this mean each content vendor would be required to report on the racial makeup of its accounting staff, its security guards, and even its janitorial staff? If so, the CVDR represents the most burdensome reporting requirements in history.”

“The FCC must be careful not to exceed its statutory mandate,” Dunstan continued. “The FUSE Petition falsely claims the FCC has clear authority to implement the CVDR that is ‘beyond question.’  Yet the statute they point to is strictly a reporting statute and grants the FCC no new substantive powers to regulate, and certainly not the power to implement such a far-reaching and highly burdensome new regime as envisioned in the Fuse Petition.”

“The Petition implicates significant constitutional issues,” Dunstan concluded. “The Fuse Petition argues that the CVDR scheme it envisions is consistent with the First Amendment with a citation to Turner Broadcasting System v. FCC. The First Amendment analysis is far from this simple, however. The FCC must recognize that Turner was a narrow, 5-4 decision that is not applicable to services beyond cable. Platforms and content providers thereto have full First Amendment rights, and any regulation that might impact the content of their programming would have to be viewed under a strict scrutiny standard.” 


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