The 2021 infrastructure bill allocates $65 billion for broadband and commands the Federal Communication Commission (FCC) to make rules to “facilitate” equal access to broadband, including “preventing digital discrimination.” Yesterday, TechFreedom filed comments on the FCC’s inquiry about how to implement that command under Section 60506 of the Infrastructure Investment and Jobs Act before issuing draft rules. 

“The FCC contemplates issuing new rules to regulate discrimination in broadband deployment, but this is not what Congress commanded the FCC to do,” said Berin Szóka, President of TechFreedom. “If Congress had wanted the FCC to implement a new civil rights law for broadband, it would have legislated a clear prohibition on discrimination—the essential element in all civil rights laws. Instead, Congress wrote a law entirely about ‘facilitation.’”

It is simply not plausible that Congress could have intended to change how broadband deployment is regulated in an obscure amendment tacked onto a spending bill on the Senate floor with no discussion or legislative history,” Szóka continued. “As the Supreme Court has declared, ‘Congress … does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not … hide elephants in mouseholes.’”

“There’s plenty the FCC can do to prevent digital discrimination by facilitating equal access,” Szóka concluded. “The Commission should focus on directing funding towards remedying unequal access to broadband and preventing potential digital discrimination—not only under the Infrastructure Act but also the FCC’s various other broadband programs. To measure digital discrimination accurately, the Commission must channel complaints from consumers into large-scale analysis. Patterns, not anecdotes, should guide the Commission. And allowing individual complaints to generate huge legal bills won’t benefit anyone. In everything it does, the Commission must carefully weigh all issues of ‘technical and economic feasibility.’ It should avoid imposing unnecessary costs that will ultimately be borne by consumers themselves.”


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