Cruz, Other Republicans Urge Rosenworcel to 'Reconsider' FCC's Digital Discrimination Draft

during the commissioners' Nov. 15 open meeting (see 2310250070). Rep. Greg Steube, R-Fla., cited concerns about the digital discrimination draft last week in his push for the House to pass an amendment to its FY 2024 appropriations bill covering FCC funding (HR-4664) that would defund the FCC's Communications Equity and Diversity Council (see 2311090073). The FCC's draft “largely follows a Biden administration diktat” via NTIA to adopt a broad definition of digital discrimination to include disparate treatment and disparate impact (see 2310060067), Cruz and the other GOP senators said in a letter to Rosenworcel. It “will create crippling uncertainty for the U.S. broadband industry, chill broadband investment, and undermine Congress’s objective of promoting broadband access for all Americans. We urge you to adhere to the will of Congress” as expressed in the 2021 Infrastructure Investment and Jobs Act provision mandating the proceeding “to avoid causing serious damage to the competitive and innovative U.S. broadband industry.” The draft, “buttressed by the theory that the lack of actual discrimination somehow authorizes the FCC to redefine digital discrimination to expand its authority,” turns IIJA's statutory language “on its head” and constitutes “a major abuse of the agency’s power,” the lawmakers said: “Absent effects-based language, agencies cannot expand the scope of a statute to impose disparate impact liability. This is for good reason: disparate impact liability must be limited so as not to punish ‘the practical business choices and profit-related decisions that sustain a vibrant and dynamic free enterprise system.’ The FCC has no authority to ignore the plain meaning of the IIJA.” The FCC didn’t comment.