FCC Commissioners Brendan Carr and Nathan Simington registered their strong dissent to the FCC’s sweeping Nov. 15 order aimed at eliminating “digital discrimination” in broadband services.
Simington called the move “the most open-ended liability regime that the FCC has ever seen—indeed, one broader than any civil rights law Congress has ever passed.”
The order defines “discrimination” in consumer access to broadband as “differential impact… not justified by genuine issues of technical or economic feasibility.”
The new rules relate to directives in the 2021 Bipartisan Infrastructure Law requiring the FCC to “prevent” and “eliminate” digital discrimination. However, the differential impact standard applied by the FCC does not correlate to the statutory text of Section 60506 in the law, which directs only that the Commission take steps to ensure “equal opportunity to subscribe to an offered service” and should work to prevent discrimination of access based on income level, race, ethnicity, color, religion, or national origin.
Further, the order exempts the Biden Administration’s own Broadband Equity, Access, and Deployment (BEAD) initiative and the FCC’s own Universal Service Fund programs from the new rules.
“It didn’t have to be this way,” Carr wrote in his dissenting statement. “Instead of creating multiple vectors of unnecessary litigation risk, the FCC could have adopted an order that lawfully and faithfully implemented Congress’s bipartisan decisions in the Infrastructure Act.”
Carr closed his statement with an “unsolicited” word of advice to the industry: “I understand that the Infrastructure Act included some $65 billion in subsidies for broadband. I understand that lobbyists read Section 60506 before it passed and satisfied themselves that it was a limited and narrow provision. But I also understand how Washington works. There is no such thing as free money in this town.”
