Yesterday, TechFreedom filed 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). Our comments explain why the NPRM misinterprets statutory language—and would radically change how broadband is deployed and delivered across America. Courts will not uphold any interpretation of Section 60506 that imposes liability on the basis of unintentional disparate impact. 

“There is virtually no evidence of actual digital discrimination for the Commission to prevent,” said Berin Szóka, President of TechFreedom. “Massive regulatory expansion is no solution to a problem that doesn’t exist. The studies placed in the record claiming digital discrimination rest on stale data and empirical claims for which there is no hard evidence. More reliable studies show that any discrepancies in deployment are isolated at best, and that nationwide deployment of wireline broadband services are virtually identical among racial and ethnic groups, and among higher and lower income levels.”

“Courts won’t let the Commission rewrite a statute to impose liability without intentional discrimination,” Szóka continued. “Congress knows how to write civil rights laws. It knows that courts will interpret such laws to create liability only for intentional discrimination, such as Title IX, unless the statute’s operative provisions clearly focus on effects rather than intentions. Section 60506 differs fundamentally from laws that the Supreme Court has interpreted to support disparate-impact liability, such as Title VII. The FCC’s interpretation would impose de facto common carrier status upon broadband providers without the FCC having to bother to formally reclassify them under Title II. The FCC presumes that, in a terse provision dropped into an infrastructure bill with no discussion, Congress intended to fundamentally rewrite the Communications Act. But ‘Congress does not … hide elephants in mouseholes.’”

“The NPRM’s heavy reliance on a disparate impact framework dooms this entire proceeding,” Szóka added. “Disparate impact is so fundamental to the way that the NPRM was drafted, that were a court to find that the FCC lacked the statutory authority to promulgate rules on that framework, the Commission would have to start over with a new NPRM. This would delay implementing any enforceable rules for years if the FCC goes ‘all in’ for a disparate impact framework. The FCC would waste less time by issuing further notice of proposed rulemaking now that outlines an intent-focused framework.”

“The complaint process must not make the process the punishment,” Szóka concluded. “The proposed complaint system would require providers to respond to unquantified, unverified, and unsupported claims of discrimination. Anyone with a grievance could subject a broadband provider to tens of thousands of dollars of legal fees. Instead, any revision to the complaint process needs easy off-ramps to allow the Commission to dismiss claims not actually rooted in discrimination. That’s especially critical if the Commission issues a disparate-impact rule. Such liability, the Supreme Court has declared, ‘must be limited so employers and other regulated entities are able to make the practical business choices and profit-related decisions that sustain a vibrant and dynamic free-enterprise system.’”


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