New FCC "Digital Equity" Power Grab will be Prohibitively Costly to Americans

The Biden administration is pushing "digital equity" on the internet in its latest FCC regulatory and "unlawful power grab." Biden's woke fingerprints are all over the FCC's proposed "utility-style regulation of the internet," according to a letter of dissent penned by Brendan Carr, former General Counsel for the Federal Communications Commission (FCC) senior Republican on the FCC. The rules are part of Biden's 2021 BiPartisan Infrastructure law. It isn't the first time Democrats tried to do this kind of thing.

Former FCC advisor and current Communications Law Professor at Michigan State University, Adam Candeub, said the first time was under President Obama through the FCC's "net neutrality/Title 2" rules. Candeub was also acting Assistant Secretary of Commerce for the National Telecommunications and Information Authority under the Trump administration in 2019 and worked for the FCC from 1998 to 2000 and currently serves as a senior fellow at the Center for Renewing America.

The FCC's proposed regulatory mandate is one gargantuan step off the cliff into the abyss of massive regulatory control. To discuss the unsavory regulatory burdens that lie ahead, UncoverDC spoke with Candeub on Friday. He agrees with Carr that the FCC's new structure represents nothing more than a regulatory "power grab" that will be enormously costly and ultimately degrade the quality of service:

"It's essentially requiring equal service in every area of the country. So that means that if a company only has a certain amount of capital to servicing an area, you're going to get lower quality. For instance, because areas that are very expensive to provide services for, all the money has to go there, regardless of whether it makes any economic sense. So it's a kind of socialism. It's just going to degrade the quality for everybody because networks won't have the discretion to put the investment where it makes [the] most sense.

And you know, and it has been done sort of dishonestly, under the banner of equality, something everybody likes. The FCC is dishonestly claiming that it is promoting equity and fairness. However, the FCC is just seizing control over business decisions, funneling resources to politically preferred constituencies. [With this regulatory structure], everyone else gets worse service at a higher price. It violates the Administrative Procedure Act. Congress passed this one vague law, and the FTC seized upon it to create this elephantine regulatory structure that's going to make service more expensive for people." 

The proposed rules were published for comment in the Federal Register on Jan. 20, 2023. Comments on Oct. 6, 2023, from the Biden administration are essentially the "marching orders" that give the FCC permission "to prevent digital discrimination of access and work in concert with federal programs aimed at achieving universal broadband deployment, adoption, and usage." The FCC, in fact, has a task force dedicated to "promoting equal access to the internet." Biden's marching orders are now the law of the land, pending the process that officially puts them into place. 

Carr explains in his own words that on Oct. 6:

"President Biden gave the FCC its marching orders. The President called on the FCC to implement a one-page section of the 2021 Infrastructure and Jobs Act IIJA (Infrastructure Act) by adopting new rules of breathtaking scope, all in the name of digital equity. For the first time ever, those rules would give the federal government a roving mandate to micromanage nearly every aspect of how the Internet functions—from how ISPs allocate capital and where they build to the services that consumers can purchase, from the profits that ISPs can realize and how they market and advertise services, to the discounts and promotions that consumers can receive. Talk about central planning

The regulations, says Carr, are part of a much larger campaign on the part of the Biden administration "to increas[e] government control." And he says it has been made easy to do because "Democrats have been in control of the FCC and administrative agencies in DC for approaching 12 out of the last 16 years." Carr warns:

"You can see it in the Biden Administration's campaign to pressure Internet companies into censoring Americans' protected political speech—a coordinated effort that is now on appeal to the Supreme Court. And you can see it in the Biden Administration's demand that the FCC adopt these "digital equity" rules today—a framework that gives the FCC a nearly limitless power to veto private sector decisions. None of these are isolated decisions—they share and advance the same goal of increasing government control. But it is never enough.

Carr points out that, instead of allowing the free market to right the ship, the Biden administration is doing more of what big government bureaucratic ants like to do. They want to fix every societal ill with more big government control by centralizing regulatory power with the FCC at the helm. As one example, in July, the Biden administration added "cybersecurity labeling for smart devices to help consumers choose products that are less vulnerable to cyberattacks." Allow me to translate that for you. This is just one more way the administration will choose for you. Call me cynical, but Big Government "choosing for you" never ends well for the consumer.

In another example, on Nov. 13, Biden announced his plan to regulate radio frequency spectrum in its National Spectrum Strategy, "striking an appropriate balance between promoting private-sector innovation and furthering the missions of executive departments and agencies" (government).

Then, in June 2023, the Biden-Harris administration launched a program (Online for All) coordinating with the FCC to help subsidize internet costs for students and families. Heck, Biden even has a whole "blueprint" in place, complete with its own task force. Its goal is to address online harassment and abuse focused on, among other things, "women, girls, and LGBTQI+ individuals. It features "digital equity grants, government coordination that "prevents technology-facilitated gender-based violence in the U.S. and globally," and programs to "enhance and expand data collection" to measure technologically-facilitate inequities. All in our "best interests," of course. It is all connected. And these are just three examples of the ways this administration is getting its ducks in a row to control the communications market. 

Carr seems to be on the right track with his convictions. UncoverDC has written countless columns on how the Biden administration has re-engineered every aspect of every policy and has sought to rewire every single government employee's brain to carry water for the diversity, equity, and inclusion crowd. Even more worrisome, Biden is willing to risk our national security by putting this woke ideology horsepuckey at the center of his initiatives and policies. So, what is this FCC regulatory nightmare going for here? How does it affect everyday Americans?

As Carr so aptly highlights, there is no secret in what the FCC plans to do. "The text of the order expressly provides that the FCC would be empowered, for the first time, to regulate each and every Internet Service Provider's (ISPs)" everything. This new regulation addresses what progressive activists call a "deliberate practice of digital red-lining," as explained by The Federalist Society commentary on how race allegedly factors into broadband regulation. However, the FCC itself concludes that "there is little or no evidence" on the record to indicate there has been "intentional discrimination in the broadband market." The quoted Federalist Society commentary confirms the same.

And what's worse, the plan makes non-compliance, both active and by omission, a liability. And the liability will be punishing financially—allowing the FCC to "impose unfunded build mandates and unlimited monetary fines on every covered entity." What's worse, there is no way to know whether you are complying or not, according to Carr:

"The FCC reserves the right under this plan to regulate both "actions and omissions, whether recurring or a single instance. In other words, if you take any action, you may be liable, and if you do nothing, you may be liable. There is no path to complying with this standardless regime. It hangs together like an M.C. Escher drawing does—on paper only."

It will affect landlords, construction crews, unions, marketing agencies, and banks. You name an industry or entity, and the FCC has got you "covered." "Everyone," says Carr, "Will be subject to FCC regulation for the first time ever." Congressional oversight be damned. Due process will also be elusive because it is almost always extraordinarily difficult to find a resolution to a "lack of compliance" when big government is involved. And, get this, the latest round of updates to the proposed regulations "exempt the Biden administration's signature "Internet for all" initiative (BEAD) and the FCC's own Universal Service Fund programs from the new rules." Shocker. It is rules for thee and not for Me. Carr wraps it up nicely here:

In addition, even though the FCC has no right to regulate broadband rates and "even an ISP's profitability," according to Carr, they will indeed regulate broadband rates with this regulatory change. Forget the statute put forth by Congress that "decided not to give the FCC rate regulation authority in Section 60506 of the Infrastructure Investment and Jobs Act (IIJA)."

According to a Nov. 10 letter from Senator Ted Cruz (R-TX), the "Draft Order on 'Digital Discrimination'" would "turn section 60506 of the IIJA into a sweeping mandate for heavy-handed Internet regulation and expose every nook and cranny of the broadband business to liability under a "disparate impact" standard." He adds the Draft Order is "at odds with the plain meaning of section 60506." Cruz believes the new rules are "untenabl[e]" and "intrusive." Cruz and the 27 co-signers state the Draft Order "is flippant when it comes to the real-world impact of these burdensome rules on broadband deployment in the United States."

Carr responded under his post on X that the FCC decision should be appealed to the courts, saying, "There are several reasons why it should be overturned on appeal." Candeub elaborates on the process of putting the regulatory platform into place: 

"It is now the law of the land. However, I would be very surprised if it were to go into effect immediately. Because it has to wind its way through the system. It will have to go through all of the legal challenges. So it will get may be appealed to the DC Circuit. These often end up with the DC Circuit, but sometimes they go elsewhere. But it will almost certainly go to one of the appeals courts. That usually takes six months to a year. Then there could be an appeal in the Supreme Court. It could take two to three years total. If the Supreme Court does not take it, it's one year. These are all rough estimates, not hard and fast rules."

Candeub added he "hopes it never goes into effect."

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