EPIC Joins Public Knowledge in Supporting FCC Rule that Prohibits Digital Discrimination in Broadband Accessibility

On July 9, EPIC joined Public Knowledge’s amicus brief in support of the Federal Communications Commission in Minnesota Telecom Alliance v. FCC, an Eighth Circuit case challenging the FCC’s rule prohibiting discrimination in access to universal communications services, such as discrimination in broadband deployment.

The case is brought by Minnesota Telecom Alliance (MTA), which argued that the FCC lacks the authority to impose disparate impact liability on providers who discriminate in providing access to broadband. MTA additionally argued that the FCC impermissibly departed from the existing burden-shifting framework for disparate impact liability; that the FCC cannot regulate non-Internet Service Providers (ISPs) such as entities maintaining and upgrading network infrastructure; that the FCC cannot impose the civil penalties associated with enforcing its rule; and that it was arbitrary and capricious for the FCC to depart from the existing burden-shifting framework and to fail to consider the full scope and cost of its rule.

The FCC argued that Congress directed the agency through the Infrastructure Investment and Jobs Act (IIJA) to “prevent[] digital discrimination of access based on” protected characteristics; that the agency developed a valid framework for investigating disparate impact complaints; that the rule appropriately reaches non-broadband providers who deprive consumers of equal access to broadband; and that its enforcement remedies and analysis of costs and benefits were adequate and reasonable. The FCC additionally addressed challenges raised by Benton Institute, including the agency failing to adequately explain why it did not adopt a formal adjudicatory process.

Public Knowledge, joined by EPIC, argued that the FCC’s mandate to make communications technology available to all Americans dates back to at least the 1930s. The advocacy groups’ brief included arguments that the Telecommunications Act of 1996 explicitly included a nondiscrimination provision to further this mandate, and that the disparities made clear and made worse by the COVID-19 pandemic gave rise to the IIJA in which Congress more explicitly compelled the FCC to meet its mandate of universal service for communications technologies.

EPIC regularly files comments to the FCC, including digital access issues, and files amicus briefs in support of FCC rules that advance consumer interests.