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‘Disparate-Impact Liability’

At Least 8 Petitioners Ask Appellate Courts to Vacate FCC’s Digital Divide Order

The FCC’s Nov. 20 order, published Jan. 22 in the Federal Register, purports to implement congressional “instruction” to facilitate equal broadband access under the Infrastructure Investment and Jobs Act, but it gives the commission “unprecedented authority to regulate the broadband internet economy,” said the Ohio Telecom Association’s (OTA) petition for review Tuesday (docket 24-3072) in the 6th U.S. Circuit Court of Appeals.

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A separate petition Wednesday in the 6th Circuit from the Ohio Cable Telecommunications Association also challenges the order's "sweeping prohibition" on broadband discrimination. The order adopts a standard that applies to "a staggering array" of covered elements of service, said the petition (docket 24-3074).

The Florida Internet & Television Association filed a nearly identical petition Tuesday (docket 24-10291) in the 11th Circuit, as did MCTA - The Missouri Internet & Television in a petition Tuesday in the 8th Circuit. (docket 24-10292), The Broadband Association of Alabama and Mississippi also filed a petition Tuesday (docket 24-10292) in the 11th Circuit, as did the Benton Institute for Broadband & Society in a petition in the D.C. Circuit (docket 24-1015).

They're the latest known challenges filed in two days to the FCC’s order and the “digital discrimination of access” definition contained in that order. The U.S. Chamber of Commerce filed a similar petition Tuesday in the 5th Circuit (see 2401300053), and the Minnesota Telecom Alliance did the same in the 8th Circuit (see 2401300089). All the petitions seek to have the order declared unlawful and vacated. The FCC didn't immediately comment.

The order for the first time “imposes disparate-impact liability on broadband providers and myriad other entities that assist with providing service and have never been subject to FCC jurisdiction,” said the OTA petition. Under that disparate-impact "framework," the FCC “would empower itself to micromanage a host of legitimate business practices,” it said.

The order gives the FCC newfound oversight over broadband network buildout decisions, pricing, promotions, advertising, contract renewal and customer service, said the OTA petition. Under the order, the FCC would enforce its “new regulatory regime” with its “entire panoply” of enforcement tools, including civil penalties, it said.

The order is contrary to law, and it’s arbitrary, capricious and “an abuse of discretion,” said the OTA petition. The order exceeds the FCC’s authority, and it otherwise violates the Administrative Procedure Act, it said. The association asks the 8th Circuit to hold the order unlawful and set it aside, it said.

Rep. Buddy Carter of Georgia and 66 other House Republicans, meanwhile, made good Tuesday night on earlier expectations they might try to undo the digital discrimination order by filing a Congressional Review Act resolution of disapproval. The existing rules “will undoubtedly widen the digital divide by stifling future investment in broadband deployments,” said Carter, a House Communications Subcommittee member.

Not only is it unconstitutional, but it goes against the very core of free market capitalism,” Carter said. “Congress must block the FCC’s totalitarian overreach.” Rep. Kat Cammack of Florida and several other House Commerce Committee Republicans were among those who signed on as original cosponsors. House Commerce Chair Cathy McMorris Rodgers of Washington and House Communications Chairman Bob Latta of Ohio are not among the cosponsors.