Yesterday, TechFreedom filed comments in response to the Federal Communications Commission’s (FCC) Further Notice of Proposed Rulemaking (FNPRM) related to the issue of whether the FCC should create a new Office of Civil Rights (OCR) as part of the Commission’s digital discrimination proceeding.

“Other agencies can point to extensive statutory bases for their operations,” said James Dunstan, TechFreedom General Counsel. “Those arguing for the establishment of an OCR within the FCC wish to imbue it with broad powers over future agency activities, pointing to similar OCRs in other federal agencies. While other federal OCRs have clear statutory underpinnings, the FCC looks to stand up a new office based solely on the 214th paragraph of an FNPRM that deals only with broadband deployment. Doing so will undoubtedly be prone to legal challenge as the office’s authorizing language bears little resemblance to the textual foundations of parallel offices elsewhere in the executive agencies.”

“These questions are better asked in a broad Notice of Inquiry (NOI) that reaches far beyond broadband,” Dunstan continued. “We recognize the potential benefits of establishing such an office; however, this docket is not the right place. This FNPRM asks fourteen broad questions, but proposes no draft rules or specific guidelines for what an OCR would do at the FCC. Doing so in a narrow proceeding will not elicit comment from all affected stakeholders. If the Commission is serious about the need for an OCR, it should start a new proceeding to explore the efficacy of such a substantial change in how the FCC operates.”

“The Commission should wait for the courts,” Dunstan concluded. “If the reason for establishing this new office is to implement the disparate impact regime, that rationale will evaporate if the Eighth Circuit overturns the Section 60506 Report and Order. Given the strong arguments made in the record that Section 60506’s language allows only disparate treatment rules, the Commission should wait to see whether it prevails on appeal before expending the effort needed to establish a wholly new office within the FCC. These new burdens on industry may turn out to be founded on quicksand.”


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