The Daily Dish
October 31, 2023
The FCC and Digital Discrimination
As laid out by Jeffrey Westling, the Federal Communications Commission (FCC) will soon vote on an order that would prohibit digital discrimination. To sharpen my thinking on the topic, I reviewed the dictionary definition of discrimination:
Discrimination: treating a person or particular group of people differently, especially in a worse way from the way in which you treat other people, because of their race, gender, sexuality, etc.
Ok, that did not seem so complicated. But, as it turns out, that is not what the FCC order requires. Instead, it is based on the notion of “disparate impact” – a standard that looks at outcomes, not treatment. In effect, the order would prohibit policies or practices that led to differential outcomes in the access to broadband across incomes, race, ethnicity, color, religion, or national origin. This is a terrible idea.
There is just no way that one can be sure that a broadband investment will have equal outcomes across all those criteria. Now, the FCC does include a caveat for policies or practices that can be justified by genuine issues of technical or economic feasibility, but the FCC fails to provide sufficient guidance regarding what will and will not violate the rules. The upshot is that the digital discrimination order will likely be a big headwind to investment in broadband projects, with the perverse outcome of actually worsening the divide between those who have access to broadband and those who don’t.
The desire to eliminate discrimination is laudable, but the use of disparate impact as the standard is not. If the FCC is dead-set on making this error, Congress has two choices. One, it could legislatively bar finalizing the rule or, better, legislatively identify the standard for digital discrimination. But, realistically, the odds of that happening are worse than the odds that the Patriots win the Super Bowl.
Alternatively, Congress could pass a resolution of disapproval under the Congressional Review Act. This would rescind the FCC order and bar the FCC from imposing a “substantially similar” rule in the future. Since a digital discrimination order that did not use the disparate impact standard would not seem to be substantially similar, this would also do the trick.
Fact of the Day
Across all rulemakings this past week, agencies published $4.7 billion in total costs and added 1.7 million annual paperwork burden hours.
