When deploying broadband infrastructure, service providers should not discriminate against potential customers on the basis of income level, race, ethnicity, religion, or national origin. In a recent comment filed with the Federal Communications Commission (FCC), I discussed the best ways for the FCC to realize its goal of closing the digital divide while preventing discrimination.
Congress ordered the FCC to propose rules later this year designed to ensure that everyone has the opportunity to subscribe to broadband services similar to what others in their regions enjoy. Those rules should include some form of disparate treatment test, designed to prevent intentional discrimination. As the comment states, the disparate treatment test "is consistent with the law’s text, since Congress identified disparate treatment as preventing 'the most easily understood type of discrimination' … which the Supreme Court has defined as treating someone ‘less favorably than others because of a protected trait.'"
The comment also warns the FCC that the proposed rules likely run afoul of the Supreme Court’s 2022 decision in West Virginia v. EPA, which "clarified the application of the major questions doctrine" to agencies like the FCC. Without going into too much detail, the major questions doctrine requires an agency to identify clear congressional authority when it proposes rules of "vast economic and political significance." Congress did not give the FCC, for example, the authority to regulate broadband rates or to review providers’ every deployment decision.
Read the full comment here.