Blair Levin’s Big Call: FCC Loses Digital Discrimination Case

WASHINGTON, July 16, 2024 – Blair Levin has made a bold prediction: The Federal Communications Commission will lose the court case challenging the agency’s new digital discrimination rules.

Levin, a former FCC official during the time of the Clinton and Obama administrations, went a step further by predicting that in case he’s wrong, the FCC will never take enforcement action against Internet Service Providers, regardless of the party in power at the agency.

“If I had to bet today, I'd bet the FCC order is overturned. I will just make this prediction: Even if Biden wins and even if the law is upheld, there are not going to be any enforcement actions," Levin said on a podcast with Light Reading’s Nicole Ferraro posted Monday.

The FCC adopted the rules last November and were immediately challenged by national and regional trade associations for internet providers. The case, Minnesota Telecom Alliance v. FCC, is before the U.S. Court of Appeals for the Eighth Circuit in St. Louis.

The rules were considered a major achievement of the Biden administration delivered by FCC Chairwoman Jessica Rosenworcel in keeping with the White House's whole of government effort to ensure fairness and equity in public policy.

One of the most controversial features in the FCC’s rules was inclusion of a disparate impact standard under which ISPs could be held liable for unintentional acts of discrimination in the rollout of internet infrastructure.

Levin, a policy analyst at New Street Research, said he based his prediction on an FCC court defeat on his view that the Eighth Circuit is “very conservative” and that the case involves “a very significant question of whether the discrimination is judged by impact or or it's judged by intent,” a reference to the disparate impact standard. 

 “I understand why people are upset about it. I understand why people are arguing about it. I don't think it goes into effect. Even if it goes into effect, as a matter of enforcement policy, I just don't see it happening,” he said.

Levin said he didn’t think there would be sufficient grounds to justify an enforcement action against an ISP.

"I don't know what are the facts on the ground where the FCC will say, "This now is evidence there has been digital discrimination.'" Levin said. "There are lots of theoretical kinds of situations that are offered by folks it could happen. I just think the likelihood of any of them happening are very, very low."

In 2021, Congress authorized the FCC to adopt digital discrimination rules under section 60506 of the Infrastructure Investment and Jobs Act of 2021 for the purpose of facilitating equal access to broadband while preventing discrimination of access based on income level, race, ethnicity, color, religion or national origin.

In a June 21 brief at the Eighth Circuit, the FCC and the Department of Justice defended the FCC's reliance on disparate impact. DOJ and the FCC said the FCC was correct in holding ISPs (and potentially their suppliers) legally liable for unintentional discrimination where the evidence is convincing.

"Routine buildout and upgrade decisions are protected from baseless complaints under the FCC’s robust requirements for identifying disparate impacts that warrant investigation. Claims that the rules will lead to unfunded mandates and rate regulation are groundless,” the FCC and DOJ said.