Yesterday, TechFreedom filed reply comments in response to the Federal Communications Commission’s (FCC) Notice of Proposed Rulemaking (NPRM), issued to implement Section 60506 of the Infrastructure Investment and Jobs Act (Infrastructure Act). We note the lack of evidence of discrimination in broadband deployment and explain why the FCC lacks authority to issue or enforce rules that create liability based on disparate impact rather than disparate treatment (intentional discrimination). 

“Commenters have failed to provide any substantial evidence of ‘digital discrimination,’” said James Dunstan, TechFreedom General Counsel. “Commenters offer no new evidence of actual digital discrimination in their comments, let alone intentional discrimination. Instead, they double down on prior studies that are based on outdated data or flawed methodology. It is not enough to point out systemic racism or discrimination in other parts of the economy. The Commission can’t adopt such broad and damaging rules without something more than mere anecdotal evidence or unsubstantiated claims. More and more, courts have blocked efforts to rectify broad claims of systemic bias without specific findings of past discrimination within the relevant market.”

“Arguments for disparate-impact rules rest on legal quicksand,” said Berin Szóka, President of TechFreedom. “Such arguments assume that Section 60506 is part of the Communications Act. But it clearly isn’t. This means the FCC will be limited in its ability to make and implement a rule in this proceeding; the agency will have to rely on ancillary jurisdiction rather than its direct authority under the Act. There is no clear evidence that Congress intended the Commission to impose disparate-impact liability; just the opposite, such a concept is inconsistent with the text of Section 60506.”

“The FCC can’t impose fullblown common carriage on non-common carrier services, yet disparate-impact liability would go even further,” Szóka concluded. “Advocates of disparate-impact liability aren’t subtle. They want to treat broadband providers like common carriers, even though the FCC has classified them as non-common carrier providers of information services. Indeed, disparate-impact liability would go far beyond even traditional common carriage. It would impose buildout requirements on providers and force them to operate without even the protections afforded to traditional common carriers to receive a reasonable rate of return.”


Read our reply comments here. Find this release on our website, and share it on Twitter and Mastodon. We can be reached for comment at Read our related work, including:

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TechFreedom is a nonprofit, nonpartisan technology policy think tank. We work to chart a path forward for policymakers towards a bright future where technology enhances freedom, and freedom enhances technology.