Digital Liberty Submits Last Reply Comments to FCC on Biden’s Digital Discrimination Order 

By Jason Lee

Digital Liberty filed the last round of reply comments on April 1st to the FCC regarding Biden’s digital discrimination order, which was adopted in 2023. The rules have the stated intention of preventing and eliminating digital discrimination under the Infrastructure Investment and Jobs Act (IIJA), but would in practice have allowed the FCC to micromanage almost any decision made by ISPs.  

The last comment submission focused on the unlawful call for Biden’s FCC to create a Civil Rights office to placate its progressive activist allies. Activist groups had advocated the creation of such an office to enforce the digital discrimination order under which ISPs could get sued if there is any discrepancy in the treatment of white and non-white areas regarding broadband access. 

As argued in the reply comments by Digital Liberty: 

Our sole interest is to address the common refrain among progressive groups, including Public Knowledge and racial interest groups, that the FCC should establish an office of civil rights in addition to the vast civil rights bureaucracy that already pervades the federal bureaucracy. While there certainly is a federal role for civil rights protection under the Fourteenth Amendment and it would be absurd to claim otherwise, diffusing this responsibility across multiple conflicting jurisdictions will not serve the public well. The Department of Justice was specifically created for the purpose of enforcing civil rights; it should not have to compete with litigation out of the FCC. 

The FCC has no civil rights enforcement remit on internet access as stated in the preamble to the 1996 Communications Act: 

An act to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies. 

It is a clear that the FCC should strive to help all Americans access affordiable, high-speed broadband and should not be a weaponized department that picks which racial groups should have access to the internet. As explained in the comments: 

The purpose of the FCC, its authorizing legislation, and further responsibilities granted to it by later legislation is not to engineer demographics, socialize, or micromanage communications services. The purpose is to secure higher quality internet service at lower prices by promoting competition. This is as true of the Infrastructure Investment and Jobs Act as it was of the ’96 Communications Act. 

In addition, Congress never gives the FCC the authority to create a Civil Rights office under the IIJA as highlighted in the comments: 

Finally, the IIJA did not authorize the creation of any such office nor provide funds to create one. This again would exceed the mandate Congress gave the commission on this issue, as have the rules promulgated to define digital discrimination. 

Congress should exercise oversight of the FCC’s power grab and hold the FCC accountable as the act is unconstitutional to go beyond what the IIJA set the FCC up to do in the first place.  

You can read the full comments here