Senators Push Back on FCC’s “Digital Discrimination” Rules

NRB | March 22, 2024 | Advocacy

On March 14, 19 Senate lawmakers led by Senators Ted Cruz (R-Texas) and Mike Lee (R-Utah) introduced a resolution aimed at nullifying the FCC’s “digital discrimination” rules, which were approved by the regulatory body in November and would subject internet service providers (ISPs) to a “disparate impact” standard of discrimination in internet service offerings. This follows a companion resolution introduced in the House by Reps. Buddy Carter (R-Ga.) and Andrew Clyde (R-Ga.) this January. 

“Despite admitting there’s ‘little to no evidence’ of discrimination by broadband companies, the Biden administration has plowed ahead with government-mandated affirmative action and race-based pricing for broadband,” Cruz said. “The only beneficiaries of the FCC’s Orwellian ‘equity’ plan are overzealous government regulators who want to control the internet. This resolution will roll back FCC Democrats’ unlawful power grab.”

“The FCC’s heavy-handed ‘Digital Discrimination’ rule is a solution in search of a problem,” Lee said. “It’s a broad overreach that threatens to entangle the internet in red tape, jeopardizing the very innovation that has made it a cornerstone of modern life. This resolution is our stand against Biden’s attempt to regulate the internet into oblivion, ensuring the internet remains a dynamic and competitive marketplace for ideas, not a utility subject to government whims.”

The November 15 order approved by the FCC defines “discrimination” in consumer access to broadband as “differential impact… not justified by genuine issues of technical or economic feasibility.” As such, ISPs face possible fines for any policies that could, under the disparate impact standard, lead to unequal broadband access whether or not there was intent to do so. Notably, while the order empowers the FCC to oversee almost every aspect of broadband in the United States, the order exempts the Biden administration’s Broadband Equity, Access, and Deployment (BEAD) initiative and the FCC’s own Universal Service Fund (USF) programs from the new rules. Further, this disparate impact standard 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. Section 60506 also does not authorize the Commission to issue fines, forfeitures, or injunctions.

Commissioner Brendan Carr issued a strong dissent when the rules were approved, stating that “never before, in the roughly 40-year history of the public Internet, has the FCC (or any federal agency for that matter) claimed this degree of control over the Internet.” Commissioner Nathan Simington described the move as “the most open-ended liability regime that the FCC has ever seen—indeed, one broader than any civil rights law Congress has ever passed.”

Read their full dissents here and here.

Throughout the Biden administration, the FCC has infused its broadband deployment aims with diversity, equity, and inclusion (DEI) principles, pursuant to Executive Order 13985, which Biden signed on his first day in office signaling his priority to advance “equity” as a key concept throughout federal policy. 

In a press release announcing the resolution’s introduction, the original cosponsors shared the following: 

The resolution currently has 19 cosponsors in the Senate and 72 in the House. NRB opposes the FCC’s digital discrimination rules and opposes undue regulatory burdens on religious broadcasters.

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