D.C. Memo: Civil Rights Groups OK with 'Disparate Impact' in FCC's Digital Discrimination Rules
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Digital Discrimination: Leading civil rights organizations supported in court the FCC’s decision to adopt a “disparate impact’ standard in digital discrimination rules adopted last November. “Contrary to their argument, Congress has long subjected businesses to disparate impact liability and the FCC’s Rule includes sufficient limits that permit practical business decisions,” the NAACP Legal Defense & Educational Fund, Asian Americans Advancing Justice, and American Civil Liberties Union said in a July 8 brief in the U.S. Court of Appeals for the Eighth Circuit in St. Louis. Under the FCC’s disparate impact standard, Internet Service Providers can be held legally liable for unintentional discrimination in the deployment of broadband infrastructure.
“Disparate impact liability is a routine method of combating discrimination with whichmost industries are familiar and to which they are already subject,” the civil rights groups said. The civil rights groups did not address the impact on the FCC’s rules of the Supreme Court’s decision to abolish the Chevron Doctrine in Loper Bright Enterprises v. Raimondo. In the digital discrimination case (Minnesota Telecom Alliance v. FCC), trade groups for broadband ISPs argued the FCC did not have authorization from Congress in the Infrastructure Investment and Jobs Act of 2021 to adopt a disparate impact standard in Sec. 60506. “Disparate-impact liability is rare, and every interpretive clue here confirms that Congress did not intend to impose it,” the ISPs said in an April 22 brief.