FCC Defends Digital Discrimination Rules as ‘Administrable and Fair’

To fulfill its “broad mandate” under the Infrastructure Investment and Jobs Act, the FCC in the digital discrimination order on review “adopted rules that prohibit practices with unjustified discriminatory effects on access to broadband service,” plus intentional discrimination, the commission’s brief said Tuesday (docket 24-1179) in the 8th U.S. Circuit Appeals Court.

Contrary to contentions raised in multiple consolidated industry petitions challenging the commission’s order (see 2404230032), the FCC’s interpretation of the act's Section 60506 “is consistent with the statute’s text, context, and purpose, as well as judicial precedent,” the commission’s brief said. The agency said its decision also is “reasonable and reasonably explained.”

The industry petitioners raise a “host of interpretative arguments and policy concerns” to contend that the FCC “overreached” by not limiting its rules to intentional discrimination, the brief argues. “But as we show,” the industry petitioners’ policy concerns are “unfounded.”

The industry petitioners “fare no better” in their arguments that the FCC’s standards for investigating complaints are inconsistent with U.S. Supreme Court precedent, the brief said. Also unfounded is their argument that the agency’s rules should be limited to broadband service providers, rather than any entity that impedes equal access to service.

The commission also disagrees with the petitioners’ argument that one of the FCC’s primary tools for enforcement -- monetary forfeitures -- “should be shelved,” said the brief: “There is no basis for so hobbling the agency’s ability to carry out Congress’s commands.”

By contrast, petitioner Benton Institute for Broadband & Society contends that the FCC didn’t go “far enough” in interpreting Section 60506, the brief noted. Among its arguments is that the commission should have adopted a formal, adjudicatory process for resolving digital-discrimination complaints, it said. The institute’s criticisms “likewise fail,” it said.

The FCC’s “measured approach” to interpreting Section 60506 “faithfully implements Congress’s antidiscrimination mandate, comports with judicial precedent, and is administrable and fair,” the brief said. The 8th Circuit should deny the petitions for review, it added.