In the 12/6/23 issue of the ICORE Blog we reported that the FCC adopted a Report and Order (Order) and a Further Notice of Proposed Rulemaking (FNPRM) on Preventing Digital Discrimination as required by Section 60506 of the Infrastructure and Jobs Act. The Order defines Digital Discrimination of Access as “policies or practices, not justified by genuine issues of technical or economic feasibility, that differently impact consumers’ access to broadband internet service based on their income level, race, ethnicity, color, religion or national origin, or are intended to have such differential impact. Under the new rules adopted in the Order the FCC will investigate conduct alleged to be motivated by discriminatory intent, as well as conduct alleged to have discriminatory effect. Many commenters in the proceeding leading up to the Order expressed concern regarding the consideration of discriminatory effect and urged the FCC, to no avail, to limit the rules to address only discriminatory intent.
In recent weeks a considerable amount of activity has occurred in the Federal Courts concerning this Order. Earlier this month, ten Petitions for Review were filed by various Parties in six different U.S. District Courts around the country requesting that the Courts find the Order to be unlawful and vacate and set aside the Order. The list of petitioners includes the Chamber of Commerce of the USA and Telecommunication Associations from seven different states.
On 2/9/24, the U.S. Judicial Panel on Multidistrict Litigation issued a Consolidation Order. The Panel has consolidated these petitions for review in the U.S. Court of Appeals for the 8th Circuit Court.
In addition to the aforementioned petitions, on 2/16/24 The Internet & Television Association (NCTA) and America’s Communications Association (ACA Connects) filed a joint petition for review of the Order. This Petition specifically addresses the Order’s inclusion of “disparate impact” in the definition of digital discrimination. Inclusion of disparate impact subjects’ providers to liability for practices and procedures that differently impact certain consumers when no intent to discriminate is present. These Petitioners seek review of the Order on the grounds that it exceeds the FCC’s statutory authority, is arbitrary, capricious, is an abuse of discretion. The Petitioners request that the Court vacate and set aside the Order.
It is difficult to determine how the Court will rule in these cases or when a ruling will be rendered. We’ll continue to monitor this issue and will provide updates as more information becomes available.
