Federal Communications Commission (FCC) Chair Jessica Rosenworcel this week announced a notice of inquiry (NOI) seeking input on a proposal to raise the minimum connection-speed benchmarks that the commission uses to define “broadband.” The current benchmark speed is 25/3 Mbps. The chair’s proposal would raise the benchmark to 100/20 Mbps, with a goal of having a benchmark of 1000/500 Mbps by the year 2030.

Read the full piece here.

The Federal Communications Commission’s (FCC) proposed digital-discrimination rules hit the streets earlier this month and, as we say at Hootenanny Central, they’re a real humdinger.

It looks like the National Telecommunications and Information Agency (NTIA) got most of their wishlist incorporated into the proposed rules. We’ve got disparate impact and a wide-open door for future rate regulation.

Here’s the tl;dr version of the new rules. More details at the end of this post.

Read the full piece here.

tl;dr

Background: Section 60506 of 2021’s Infrastructure Investment and Jobs Act (IIJA) mandated that the Federal Communications Commission (FCC) adopt rules to prevent discrimination in the deployment of broadband internet access “based on income level, race, ethnicity, color, religion, or national origin.” FCC Chair Jessica Rosenworcel recently outlined that the rules the commission intends to promulgate would define such digital discrimination “to include both disparate treatment and disparate impact.”

But… This approach conflicts with U.S. Supreme Court precedent on when a statute calls for disparate-impact analysis. The commission’s rulemaking will therefore likely invite lawsuits that challenge the agency’s authority to adopt these rules under the statute. 

This is particularly true under the Supreme Court’s emerging “major questions” doctrine, which requires that Congress speak clearly if it wants to delegate authority over questions of major economic or political significance to executive agencies.

The FCC’s broad interpretation of its mandate to promulgate digital-discrimination rules under the IIJA faces significant risk of being vacated by the courts, particularly if a challenge were to reach the Supreme Court.

KEY TAKEAWAYS

DISPARATE TREATMENT, DISPARATE IMPACT 

In discrimination law, disparate treatment refers to conduct intended to discriminate against one or more protected groups. In contrast, disparate impact is a finding that one or more protected groups is observed to experience different outcomes.

For example, disparate-impact analysis might find that low-income households have lower rates of internet adoption, and infer this was due to discrimination. Disparate-treatment analysis would evaluate whether the lower rate of adoption was due to provider policies or practices that were intended to stifle adoption by low-income households. 

In general, the bar to demonstrate a claim of discrimination is much lower under disparate impact than disparate treatment. But the FCC decided to incorporate both standards. In other words, a plaintiff would need to show disparate impact or disparate treatment in order to prove discrimination. 

But Section 60506’s language mandating the FCC prevent digital discrimination “based on” protected characteristics arguably indicates that Congress intended the FCC adopt a disparate-treatment approach. The Supreme Court has found that a statute must include “results-oriented language” to justify a disparate-impact approach to discrimination, which Section 60506 lacks.

MAJOR QUESTIONS AND CHEVRON

The so-called “major questions” doctrine affects how courts interpret congressional delegations of authority to federal agencies. The courts could find, for example, that if Congress intended the FCC to use a disparate-impact standard, it needed to say so clearly. The terse wording of Section 60506 does not appear to meet this level of clarity.

Even under longstanding Chevron analysis, an executive agency’s interpretation of a statute does not receive deference unless there is ambiguity in the enabling statute. Given the precedent, Section 60506 does not appear ambiguous in calling for a disparate-treatment standard.

TECHNICAL AND ECONOMIC FEASIBILITY

The IIJA requires that the FCC “tak[e] into account the issues of technical and economic feasibility” in crafting its digital-discrimination rules. Among the universe of potentially profitable broadband projects, firms will give priority to those that promise greater returns on investment. Such returns depend on factors like population density, terrain, regulations, and taxes, as well as a given consumer population’s willingness to adopt and pay for broadband. Many of these factors are, in turn, correlated with protected characteristics under the IIJA. A disparate-impact standard could thus incorrectly deem it to be improper discrimination when a firm responds to purely economic factors in its deployment decisions.

THE INCOME CONUNDRUM 

Congress’ inclusion of income level as a protected class in the IIJA made the FCC’s job much more difficult. Because income level is highly correlated with various protected (e.g., race and national origin) and unprotected (e.g., education level and home-computer ownership) characteristics, evaluations of income-based discrimination claims face a high likelihood of false positives, especially under a disparate-impact standard. Adoption of digital-discrimination rules that fail to recognize this “income conundrum” will invite costly and time-consuming litigation, both where no such discrimination exists and where it should be excused by considerations of economic feasibility. 

SLOUCHING TOWARD RATE REGULATION

Though the FCC has for years explicitly denied that it intends to impose direct rate regulation on broadband-internet providers, the National Telecommunications and Information Administration (NTIA) recently advised the FCC that: “Without addressing pricing as a possible source of discrimination, the Commission will be hard pressed to meet its statutory mandate to prevent digital discrimination of access.”

Any attempt to impose rate regulation under the language of Section 60506 would similarly face legal challenges under the major questions doctrine and Chevron.

For more on this issue, see “ICLE Ex Parte on Digital Discrimination.”

At lunch last week, I handed out the first of my new business cards with the title “Director, Hootenanny Division.” My lunchmate looked down and said, “Sounds fun, what do you do?”

Then, I had to explain that part of the job involves watching open meetings of the Federal Communications Commission (FCC) and reporting on what our federal government has in store for us next. It’s a bit like being a passenger on a steam train. No matter how much fuss you make in the coach cars, the engineer can’t hear you, and wouldn’t care if he could. The engineer’s got places to go, and nothing is going hold him back.

That’s like the FCC and its latest efforts to impose Title II regulation on much of the internet—nothing’s going to hold ‘em back.

Read the full piece here.

The Federal Communications Commission (FCC) has issued a new proposed rule that would impose far-reaching regulations on large internet service providers like AT&T, Comcast, and Verizon. These “net neutrality” rules would reclassify broadband internet access as a telecommunications service subject to common-carrier regulations under Title II of the Communications Act.

Read the full piece here.

We’ve all been there. You’re enjoying a hootenanny, and someone tries to change the tune. Kind of like yelling “Free Bird” at a Taylor Swift concert or asking a wedding DJ to play the chicken dance.

Well, the National Telecommunications and Information Administration (NTIA) has jumped into the digital-discrimination hootenanny and put in some requests.

Read the full piece here.

Amazon on Friday launched its first two prototype satellites for its planned Project Kuiper internet-satellite network. It was the latest milestone in the rapid evolution of the low-Earth-orbit (LEO) satellite industry, with companies like SpaceX and OneWeb joining Project Kuiper in launching thousands of satellites to provide broadband internet access globally.

As this nascent industry takes shape, it is important that U.S. policymakers understand its competitive dynamics. With the number of LEO satellites set to increase in the coming years, establishing a regulatory framework that spurs innovation and investment while fostering a competitive marketplace will be essential to ensure the industry’s growth benefits consumers. In this post, we will examine some of the most urgent public-policy issues that directly impact competitiveness in the LEO industry.

Read the full piece here.

The digital transformation of Europe—and, indeed, the world—has been a defining theme of the 21st century. As with all significant shifts, it has also come with its share of challenges, opportunities, and controversies. 

One such controversy that has recently reemerged is the so-called “fair share” proposal for network traffic—championed most recently in a statement from the European Telecommunications Network Operators’ Association (ETNO)—under which the major tech platforms would be made to finance improvements to EU telecom networks. While ostensibly a call for regulatory change, the deeper one delves, the more evident it becomes that ETNO’s proposal is less about fairness and more a strategic play for legacy telecoms to tap into the vast revenues of major content producers.

Read the full piece here.

Federal Communications Commission (FCC) Chair Jessica Rosenworcel announced plans last week for the commission to vote Oct. 19 on whether to take the first steps toward reinstating Title II regulations on broadband providers. Two days later, the FCC issued a notice of proposed rulemaking (NPRM) for the Safeguarding and Securing the Open Internet (SSOI) order.

If adopted, the new rules would revive much of the Open Internet Order (OIO) the commission passed in 2015 under former FCC Chairman Tom Wheeler. That order classified broadband-internet service as a Title II telecommunications service under the Communications Act, treating many broadband services as public utilities. This allowed the FCC to impose common-carrier obligations on internet service providers (ISPs), including bans on blocking or throttling lawful content, paid prioritization of content, and other practices seen as contrary to so-called “net neutrality” principles.

Read the full piece here.