Cable lobby and Ted Cruz are disappointed as FCC bans digital discrimination
FCC will investigate ISP practices that discriminate by income level or race.
The Federal Communications Commission today approved rules that prohibit discrimination in access to broadband services, rejecting fervent opposition from Internet service providers and Republicans. The broadband industry is likely to sue the FCC in an attempt to block the rules.
The digital discrimination rules were approved in a 3-2 party-line vote. "Under these rules, the FCC can protect consumers by directly addressing companies' policies and practices if they differentially impact consumers' access to broadband Internet access service or are intended to do so, and by applying these protections to ensure communities see equitable broadband deployment, network upgrades, and maintenance," an FCC announcement today said.
The rules and a related complaint process will ensure that the FCC "can investigate possible instances of discrimination of broadband access, work with companies to solve problems, facilitate mediation, and, when necessary, penalize companies for violating the rules," the agency also said.
ISPs, including Comcast, Charter, AT&T, and Verizon, recently held a flurry of meetings with FCC officials and commissioners in which they argued that the rules are too broad and exceed the authority granted by Congress. ISPs urged the commission to drop the plan's proposal to require that prices charged to consumers be non-discriminatory. The broadband industry wants the FCC to consider only whether broadband is deployed in a particular area, not other factors such as how much it costs.
Congress required FCC to act
ISPs were reacting to a draft plan released three weeks before today's meeting. The FCC may have made changes to the draft order in response to criticism submitted before the meeting. But while the final order is not yet public, it apparently will include the pricing rules and other requirements that ISPs and Republicans oppose.
During today's meeting, Republican FCC Commissioner Brendan Carr complained that the order empowers the FCC "to regulate each and every ISP's network infrastructure deployment, network reliability, network upgrades, network maintenance, customer premise equipment, installation, speeds, capacity, latency, data caps, throttling, pricing, promotional rates, late fees, opportunity for equipment rental, installation time, contract renewal terms, service termination fees," and more.
Carr previously referred to the rules as "President Biden's plan to give the administrative state effective control of all Internet services and infrastructure in the US," claiming it "is motivated by an ideology of government control that is not compatible with the fundamental precepts of free market capitalism."
In 2021, Congress required the Federal Communications Commission to issue rules "preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin" within two years. The resulting FCC rules let consumers file complaints about alleged discrimination, and define the elements the FCC would examine when investigating whether an ISP should be punished for discrimination.
The FCC is defining digital discrimination of access as "policies or practices, not justified by genuine issues of technical or economic feasibility, that differentially impact consumers' access to broadband Internet access service based on their income level, race, ethnicity, color, religion, or national origin or are intended to have such differential impact."
Cable lobby and Ted Cruz weigh in
FCC Chairwoman Jessica Rosenworcel argued that the FCC has ample authority to impose the rules. "The language is broad. But Congress was explicit—these rules have to 'facilitate equal access to broadband,'" Rosenworcel said today. "As part of this goal, Congress also told us we need to prevent and eliminate digital discrimination of access. That means our rules would miss the mark if they cover just discriminatory intent because we would fall short of meeting our statutory obligation to 'facilitate equal access' to broadband. As a result, we define digital discrimination to include disparate treatment and disparate impact. I believe this approach puts us both on the right side of history and the right side of the law."
Broadband lobby groups criticized the FCC after today's vote. A statement from cable lobby group NCTA-The Internet & Television Association said, "Instead of implementing Congress' focused directive, the FCC is instead asserting expansive new authority over virtually every aspect of the broadband marketplace, including pricing, marketing, discounts, credit checks, customer-premises equipment, deposits, late fees, equipment rentals, installation times, mandatory arbitration clauses, contract renewals, service terminations, and use of customer credit and account history."
Sen. Ted Cruz (R-Texas) also issued a statement. "Despite admitting there's 'little to no evidence' of discrimination by telecommunications companies, Democrats are hoping to convince the American people that broadband Internet is so racist they need to plow ahead with government-mandated affirmative action and race-based pricing. The only beneficiaries of this Orwellian 'equity' plan are overzealous government regulators who want to control the Internet," Cruz said.
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