“No meaningful system of checks and balances can succeed if the Executive can simply vest itself with powers that Congress never gave it.”
—Cory L. Andrews, WLF General Counsel & Vice President of Litigation

Click HERE for amicus brief.

(Washington, DC)—Washington Legal Foundation (WLF) yesterday urged the U.S. Court of Appeals for the Eighth Circuit to set aside a new Federal Communications Commission (FCC) rule that threatens to impose a lawless disparate-impact regulatory regime on the broadband industry. In an amicus brief in Minnesota Telecom Alliance v. FCC, WLF argued that the agency overstepped the bounds of its statutory authority when it adopted the new disparate-impact rule. WLF joined Pacific Legal Foundation on the brief, which was drafted by Alison Somin and Erin E. Wilcox.

The case arises from the Infrastructure Investment and Jobs Act (IIJA), a $1.2 trillion omnibus infrastructure bill passed by Congress in 2021. The IIJA included a $65 billion investment in broadband deployment. Section 60506 of the IIJA authorizes the FCC to “adopt final rules to facilitate equal access to broadband internet access service,” including by “preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin.” Relying on that narrow grant of authority, the FCC adopted a final rule that not only imposes disparate-impact liability on broadband providers and any entity that “otherwise affect[s]” broadband internet service but also allows the agency to obtain monetary relief from anyone who violates its new disparate-impact regime.

In the brief, WLF argues that the IIJA supplies no plausible statutory basis for the FCC’s unprecedented power grab and violates the Constitution. First, under the non-delegation doctrine, Congress cannot delegate vast lawmaking authority without a sufficiently “intelligible principle” to guide the exercise of that authority. Because Section 60506 contains no such limiting principle, the court should construe the statute to avoid that constitutional problem. Second, authority to promulgate disparate-impact rules is a major question to which Congress must speak clearly. Because Congress did not speak clearly to this question in the IIJA, the rule is invalid. Finally, the rule requires covered entities to treat people differently based on race in violation of the Constitution’s Equal Protection Clause.