In an effort highly unlikely to succeed, Congressional Republicans are calling on the Federal Communications Commission to stand down from its proposed new digital equity rules.
Sen. Ted Cruz (R-Tex.) and 27 colleagues said the FCC should rescind its draft order on digital discrimination, which they say is tantamount to government control over virtually all aspects of the Internet. Cruz is ranking member of the Senate Commerce Committee.
They argued in a letter to FCC chair Jessica Rosenworcel that the rules would also open internet service providers up to “expansive, indeterminate and crippling” liability under a “disparate impact” standard.
The FCC is scheduled to vote November 15 on proposed rules implementing the Infrastructure Investment and Jobs Act (IIJA), which the Republicans acknowledge directed the FCC to “prevent digital discrimination of broadband access based on income level, race, ethnicity, color, religion, or national origin."
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But they also say the way the Democrat-led commission has chosen to try and do that is “untenably” broad and even inconsistent with the law the rules are implementing because they would “undermine Congress’s objective of promoting broadband access for all Americans.”
The Biden administration has told the FCC it should adopt a broad definition of digital discrimination, including in pricing, as it comes up with rules for handing out tens of billions of dollars in broadband buildout subsidies intended to achieve universal deployment by decade's end.
The FCC is planning to adopt such a broad definition, one that includes both intentional and, more problematic for Republicans, unintentional negative effects from facially neutral policies that have disparate impacts on minorities.
Disparate impact tests have long been a tool used in civil rights legislation.
ISPs have said that unintentional impacts should not be part of the definition. ISPs have asserted that a definition that included impacts would divert needed investment from maintaining and improving their networks, but the Biden administration advised the FCC that those claims should be “resisted.”
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In the Republican letter, a copy of which was supplied to Multichannel News, Republican senators suggested a disparate impacts standard is an existential business threat because it would punish “the practical business choices and profit-related decisions that sustain a vibrant and dynamic free enterprise system.”
Signing on to the letter were Sens. John Thune (R-S.D.), Chuck Grassley (R-Iowa), Mike Lee (R-Utah), Thom Tillis (R-N.C.), J.D. Vance (R-Ohio), Jim Risch (R-Idaho), John Barrasso (R-Wyo.), Mike Crapo (R-Idaho), Dan Sullivan (R-Alaska), Mike Rounds (R-S.D.), James Lankford (R-Okla.), Roger Wicker (R-Miss.), Marsha Blackburn (R-Tenn.), Ted Budd (R-N.C.), Tommy Tuberville (R-Ala.), Markwayne Mullin (R-Okla.), Katie Boyd Britt (R-Ala.), Pete Ricketts (R-Neb.), Jerry Moran (R-Kan.), Joni Ernst (R-Iowa), Cynthia Lummis (R-Wyo.), Shelley Moore Capito (R-W.Va.), Todd Young (R-Ind.), Eric Schmitt (R-Mo.), Deb Fischer (R-Neb.), Kevin Cramer (R-N.D.) and Steve Daines (R-Mont.).
