FSF Raises Questions on FCC's Digital Discrimination NPRM

The Free State Foundation questioned the FCC’s adoption Wednesday of an NPRM in its digital discrimination proceeding (see 2212210054). “There is no disagreement that there should be equal access to broadband for all the people of the United States and that digital discrimination should be prevented,” said a statement by President Randolph May and Director-Policy Studies Seth Cooper. “It is unnecessary, and likely to be counterproductive to achievement of that worthy objective, for the Commission to adopt a rule which allows discrimination to be proved based on a showing of unintentional 'disparate impact' rather than on a showing of intentional discrimination,” they said: “It is likely that a rule adopting a ‘disparate impact’ test wouldn’t survive a judicial challenge because the text and structure of the Infrastructure Act, along with relevant judicial precedents, require an intent-based definitional standard to prove digital discrimination.”