20 GOP AGs: FCC’s Digital Discrimination Rule 'Flawed on Many Fronts'

Twenty Republican attorneys general support the 20 industry petitioners asking the 8th U.S. Circuit Court of Appeals to vacate the FCC’s digital discrimination order on grounds it exceeds agency authority and lacks clear congressional intent (see 2404230032). The AGs made their argument in an amicus brief Thursday (docket 24-1179).

The states, as separate sovereigns, “have a strong interest in ensuring that federal agencies remain within the bounds of their statutory authority” and respect states' role in the federal system, the brief said. “Unfortunately, the rule at issue here fails on both counts.”

Based on Section 60506 of the Infrastructure Investment and Jobs Act, the FCC seeks to erect “a far-reaching and intrusive regulatory scheme,” the brief said. “For the first time ever, this rule threatens to impose financial liability and unfunded build mandates on broadband industry participants whose business practices are insufficiently equitable” from the FCC's standpoint, it said.

The rule will apply not just to private broadband providers but to any entity that affects consumer access to broadband, the brief argued. It “will govern every aspect” of the broadband industry and impose liability “not just for intentional discrimination, but for disparate impacts as well.”

The rule “is flawed on many fronts” and its "incredible" scope will “marginalize” states' roles in facilitating broadband access, it said. Its disparate impact liability standard “threatens to undermine” state and federal efforts “to incentivize broadband development through targeted subsidies,” it said. The rule’s threat of liability for failing to provide equitable broadband everywhere “will discourage providers from deploying broadband anywhere.”

The rule also exceeds the FCC’s statutory authority, the brief said. Section 60506 simply instructs the commission to "facilitate" equitable broadband access, not give the FCC “the power to implement a novel and intrusive regulatory regime.”

While the rule affords the FCC regulatory power, “it certainly doesn’t include liability for actions that merely have a disparate impact on broadband access,” said the brief. The statute’s structure “and every relevant canon of interpretation confirm this conclusion.”

While the states obviously oppose discrimination, the rule “goes well beyond traditional antidiscrimination laws,” it said. The 8th Circuit shouldn’t condone the FCC’s “overreach.” Instead, it should hold that the rule “impermissibly sidelines” states and exceeds the commission’s statutory authority, it said.