The FCC’s digital discrimination broadband order “is illegal on at least three grounds,” the Pacific Legal Foundation and the Washington Legal Foundation said in an 8th U.S. Circuit Appeals Court amicus brief Tuesday (docket 24-1179). The brief supports the 20 industry petitioners that seek to vacate the order as unlawful (see 2404230032). When Congress grants lawmaking authority to a federal agency, it must lay down by legislative act an intelligible principle to which the agency can conform, according to the brief. Section 60506 of the Infrastructure Investment and Jobs Act directs the FCC to adopt rules that facilitate equal access to broadband, including by preventing digital discrimination of access based on income level, race, ethnicity, color, religion or national origin, it said. The industry petitioners “persuasively explain” that Section 60506's language doesn’t permit the FCC to implement disparate impact liability, it said. But if it did, then that language violates the nondelegation doctrine by failing to provide an intelligible principle governing such liability, it said. “Virtually any action that a regulated entity can take will have a disparate impact along one or more dimensions of income level, race, ethnicity, color, or religion,” said the brief. That’s especially true because of the inclusion of income level, “which means that any decision by a covered entity lowering or raising prices will have a disparate impact based on income and thus come within the FCC’s enforcement authority,” it said. The authority to promulgate disparate impact rules “is a major question to which Congress is required to speak clearly,” it said. Because Congress didn’t speak “clearly to this particular question” in the statute, the FCC’s order is “invalid,” it said. The order also requires covered entities to “treat people differently based on race, in violation of the constitutional guarantee of equal protection,” it said.
A new bid by Senate Communications Subcommittee Chairman Ben Ray Lujan, D-N.M., and other senators to attach stopgap funding for the FCC’s affordable connectivity program and additional money for the Secure and Trusted Communications Networks Reimbursement Program to the FAA Reauthorization Act (see 2405070083) faces resistance from chamber leaders. Senate Majority Leader Chuck Schumer, D-N.Y., and other leaders are skeptical about including nongermane language in the FAA package. A previous proposal to attach ACP money drew opposition during a Tuesday night “hotline” that Senate leaders ran to gauge lawmakers’ support for amendments in the package.
Minnesota won’t craft a law that might put the state's $652 million allocation from NTIA’s broadband equity, access and deployment (BEAD) program in jeopardy, Senate Broadband Committee Chair Aric Putnam (D) pledged shortly after midnight Tuesday. Up late considering a labor budget bill that included an industry-opposed broadband safety proposal, senators voted 35-32 to reject amendments from Sen. Gene Dornink (R) that would have scrapped the worker safety plan.
The American Civil Rights Project supports the 20 industry petitioners arguing that the 8th U.S. Circuit Appeals Court should vacate the FCC’s digital discrimination broadband rule since it runs afoul of the law and isn’t based on clear congressional intent (see 2404230032), according to the nonprofit’s amicus brief. It was filed Wednesday in docket 24-1179.
The FCC should reign in its Enforcement Bureau to avoid conflicts with recent and expected U.S. Supreme Court decisions, though the current bureau doesn’t “overreach” as frequently as it did under former Chairman Tom Wheeler, FCC Commissioner Brendan Carr said Thursday during a Wiley panel discussion called “Opportunities to Reform FCC Enforcement." Carr told us, “The jury is still out” on whether the EB under FCC Chairwoman Jessica Rosenworcel needs reform, he said in an interview after the panel discussion: “We’re not off the rails the way the agency was during the Wheeler tenure."
Providers see no need to continue a Massachusetts probe into incarcerated people’s calling services (IPCS), they said in reply comments Tuesday at the Department of Telecommunications and Cable (docket 11-16). The state made IPCS calls free last year (see 2308090063), “resolving any rate-related issues that Petitioners originally claimed justified initiation of the investigation,” said Securus. “Petitioners’ unverified equipment availability concerns and related complaints seek to raise new issues that do not warrant continuation of this proceeding.” ViaPath agreed that the free calls law means the proceeding should end. However, in March 27 comments, petitioners -- who identified themselves as recipients of collect calls from prisoners -- flagged continuing problems with prison communications after the 2023 law. “Concerns remain that the infrastructure provided by [IPCS] providers must be sufficient to account for increased calling volume with free calls." For example, the group hasn’t verified that calling-enabled tablets are available everywhere, petitioners said. Also, some have complained about the quality of Wi-Fi and headphones provided with Securus tablets, it said.
House Commerce Committee GOP leaders said Wednesday they’ve opened an investigation into recent claims of pro-Democratic Party bias at NPR. Several congressional Republicans filed or are eyeing legislation aimed at ending NPR’s federal funding in response to the bias reports, including the Defund NPR Act (HR-8083) (see 2404190060). Past attempts at halting NPR's portion of CPB federal funding have failed, including a bid during the FY 2024 cycle by Rep. Ronny Jackson, R-Texas (see 2311030069). The House Commerce Oversight Subcommittee summoned NPR CEO Katherine Maher to testify at a May 8 hearing. Panel leaders want her to respond by May 14 to a range of questions about the political viewpoint balance within the broadcasting network. House Commerce “has concerns about the direction in which NPR may be headed under past and present leadership,” said panel Chair Cathy McMorris Rodgers (Wash.), Communications Subcommittee Chairman Bob Latta (Ohio) and Oversight Chairman Morgan Griffith (Va.). in a Tuesday letter to Maher. “As a taxpayer funded, public radio organization, NPR should focus on fair and objective news reporting that both considers and reflects the views of the larger U.S. population and not just a niche audience.” Committee Republicans also “find it disconcerting that NPR’s coverage of major news in recent years has been so polarized as to preclude any need to uncover the truth,” the lawmakers said: “These have included news stories on matters of national security and importance,” including “the COVID-19 origins investigation” and scrutiny into the contents of Hunter Biden’s laptop. “On each of these issues, NPR has been accused of approaching its news reporting with an extreme left-leaning lens,” the Republicans said. NPR didn’t comment.
The White House didn’t pressure social media platform executives to censor COVID-19-related content, former Biden officials told House Judiciary Committee members Wednesday. Chairman Jim Jordan, R-Ohio, and Republicans said the officials' pressure violated the First Amendment. The lawmakers cited numerous examples of tech company employees describing “pressure” from the administration.
TechFreedom urged the FCC not to use an “obscure provision” on digital discrimination, buried deep in the “enormous” Infrastructure Investment and Jobs Act, to “smuggle onerous common-carrier regulations” onto the internet. TechFreedom’s position was detailed as part of an amicus brief Tuesday (docket 24-1179) in the 8th U.S. Circuit Court of Appeals.
Senate Commerce Committee Chair Maria Cantwell, D-Wash., said Wednesday she's talking to a range of lawmakers seeking potential changes to an amended version of her draft Spectrum and National Security Act after the panel pulled Cantwell’s bill and 12 others from a planned Wednesday markup session Tuesday night (see 2404300072). The potential for the spectrum bill to make it into the bipartisan 2024 FAA Reauthorization Act “got precluded weeks ago,” Cantwell told reporters. The Senate voted 89-10 to invoke cloture on the motion to proceed to the FAA bill as a substitute for Securing Growth and Robust Leadership in American Aviation Act (HR-3935). Lawmakers are still eyeing other vehicles for allocating stopgap money to keep the FCC’s ailing affordable connectivity program running through the remainder of the year. Those proposals include a bid from Sen. J.D. Vance, R-Ohio, that would attach an amendment to the FAA package appropriating ACP $7 billion (see 2405010055).