WASHINGTON, February 20, 2024 – Cable-affiliated Internet Service Providers are challenging new federal digital discrimination rules in federal court in Washington, D.C, the second major legal case to target the rules.
The suit was filed Friday in the U.S. Court of Appeals for the District of Columbia Circuit by NCTA – The Internet & Television Association and ACA Connects, which combined represent hundreds of broadband ISPs, the vast majority of them small.
Last November, the Federal Communications Commission adopted digital discrimination rules in implementing Section 60506 of the Infrastructure Investment and Jobs Act of 2021, a law that also includes $42.45 billion in broadband deployment grants.
The FCC’s rules not only cover intentional discrimination but also unintentional acts under a legal doctrine known as “disparate impact,” which can hold parties liable and subject to fines and other penalties regardless of intent.
“This standard applies to a staggering array of ‘covered elements of service,’ including not only the deployment of broadband facilities, but also prices, speeds, network reliability, customer service, language options, credit checks, advertising, and much more,” the cable associations said in the court filing.
Adoption of the disparate impact standard, they said, “exceeds the FCC’s statutory authority; is arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act … and is otherwise contrary to law.”
In November, FCC Chair Jessica Rosenworcel said the rules were “the first bipartisan civil rights law focused on the digital age” that will allow aggrieved parties to file complaints with the agency over digital discrimination tied to income level, race, ethnicity, color, religion, or national origin.
“These rules are strong. When you consider Congress explicitly directed us to ‘prevent’ and ‘eliminate’ digital discrimination of access, they had better be. But I would also argue that they are fair and reasonable,” Rosenworcel said in a Nov. 15 statement.
FCC implementation of Section 60506 allows for ISPs to raise issues of “technical and economic feasibility” as legitimate reasons why equal access to a network may not be possible.
“We will review those defenses carefully and thoughtfully on a case-by-case basis,” Rosenworcel said.
The cable groups did not seek a stay or an injunction, likely meaning a lengthy appellate review, perhaps a few years if the case were to reach the U.S. Supreme Court. The FCC’s rules take effect March 22, 2024, according to the Federal Register.
NCTA represents many of the largest cable ISPs, including Comcast Corp., Charter Communications, and Cox Communications. ACA Connects represents hundreds of small ISPs, including Cable One, Great Plains Communications, and All West Communications.
Last month, the U.S. Chamber of Commerce and two Texas-based business groups filed suit against the FCC, claiming the digital discrimination rules were overbroad in “covering nearly every business practice related to providing access to broadband – including pricing – and exerting authority over any business or local government involved in facilitating that access.”
The Chamber’s case was filed in the U.S. Court of Appeals for the Fifth Circuit, whose jurisdiction includes Mississippi, Louisiana, and Texas.
Ted Hearn is the Editor of Policyband, a new website dedicated to comprehensive coverage of the broadband communications market. A version of this piece was published on Policyband on February 20, 2024, and is reprinted with permission.