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Again, consistent with the Supreme Court's direction in Loper Bright, the Commission also should delete or modify the Biden FCC’s Digital Discrimination rules that are based on unintentional disparate impact. The best reading of the Infrastructure Investment and Jobs Act is that it prohibits only intentional discrimination. Also, the record does not demonstrate any digital discrimination problem. The Biden FCC’s rules would subject broadband providers to investigations without any evidence of harm and impose compliance and uncertainty costs that necessarily would be recouped through higher prices for consumers or lower investment.
Furthermore, the Biden FCC’s decisions to spend tens of millions of taxpayer dollars for WiFi on school buses and locations other than libraries, schools, and classrooms exceed the agency’s authority under Section 254(h) of the Communications Act. Such subsidies also raise concerns about lack of educational efficacy and enabling unsupervised child Internet access. These orders should be rescinded.
Furthermore, the Free State Foundation agrees with commenters that the Commission should close outright, or subject to a streamlined review process, several open proceedings in which the Biden FCC proposed or considered imposing new regulations on competitive broadband services. The Commission should close the Broadband Data Cap proceeding. “Data caps” are a form of usage-based pricing that are common in our economy and may benefit lower-income consumers who are lighter users and choose less costly plans than would be available under mandated unlimited data offerings. Bans on “data cap” plans are forms of rate regulation that undermine market freedom to set prices, thereby chilling investment. The Commission also should close the Broadband Label proceeding, provided the agency is satisfied that its label rules conform to statutory and First Amendment concerns about consumers’ point-of-sale experience and preventing deception.
The Commission should consider closing all other agency proceedings that were opened before January 2025. Under a streamlined review process, each proceeding should be closed, unless the Commission determines that there is record evidence of a problem warranting targeted agency action and such action is within the agency’s authority and would benefit the public. Proceedings involving mandates set by Congress, judicial remand, or Executive Branch requests could be exempted.
Among other unjustifiable or harmful rules, the Commission should delete or modify its 2020 “Effective Measures” rule for combatting unwanted robocalls. When the rule was adopted, it emphasized “flexibility” by voice providers in preventing significant volumes of illegal calls. But the FCC’s February 2025 Telnyx Notice of Apparent Liability effectively turned the rule into a strict liability standard. Deletion or modification is required to eliminate regulatory uncertainty and to remedy the lack of fair notice which raises due process concerns under the Fifth Amendment. This is true as well for any other regulations which do not provide fair notice of what conduct would be considered to be violative of the rules.
The Free State Foundation also agrees with commenters that have identified common carrier and other legacy voice regulations that ought to be closely reviewed for elimination or modification, including rules regarding record keeping, tariffs, specific Bell company requirements, network discontinuance, and unbundling. Rules that inhibit the retirement of legacy analog networks where consumers have available other comparable (or better) alternatives are especially suspect and ripe for elimination. Aside from other rationales supporting deletion, for such reviews, as we have recommended many times in the past, the Commission could rely on deregulatory rebuttable evidentiary presumptions. Consistent with the FCC’s Section 10’s forbearance and Section 11 periodic review directives for easing regulatory burdens, the Commission could adopt procedural rules providing that, absent clear and convincing evidence to the contrary, enforcement of such regulation shall be presumed not necessary to ensure that service charges or practices are not unreasonable or unreasonably discriminatory or necessary for the protection of competition or consumers, and consistent with the public interest. Such procedural rules would not be outcome-determinative, but they would furnish rebuttable evidentiary presumptions that match today's competitive market realities.
By acting decisively to delete or modify rules that are inconsistent with the best reading of the relevant statutory provisions or with constitutional dictates, or which are no longer necessary or otherwise harmful, the Commission can help promote pro-innovation, pro-investment, and pro-competitive conditions in the communications marketplace that will benefit American consumers.
The complete set of the Free State Foundation reply comments, with footnotes, is here.
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