Groups Seek Granular Data in FCC Digital Discrimination NOI

A draft FCC notice of inquiry seeking comment on how to combat digital discrimination could shed light on the issue's severity, given the limited information currently available, public interest organizations told us. Commissioners will consider the item during its March 16 meeting (see 2202220069). Some advocates disagree how the FCC should define the term and say ISPs may push back on claims they may be engaging in digital discrimination.

The proceeding was required by the Infrastructure Investment and Jobs Act, which gives the FCC until Nov. 15, 2023, to adopt rules to "facilitate equal access to broadband internet access service, taking into account the issues of technical and economic feasibility." The rules must include a focus on preventing access discrimination based on certain socioeconomic factors. It also requires the agency to revise its process for consumer digital discrimination complaints.

The FCC is “asking a number of important questions about how the objectives here will interact with existing statutory universal service mandates that incorporate similar standards and may give rise to similar issues,” emailed NTCA Senior Vice President-Industry Affairs Michael Romano: “We look forward to providing input on how reconciling these frameworks will ultimately be important to best serve the needs of rural consumers and communities.” The draft is “quite thoughtful” in looking at “a wide range of questions,” said National Digital Inclusion Alliance Policy Director Amy Huffman. There isn’t enough information to “understand the real severity” of digital discrimination and its “full impact,” Huffman said.

An NCTA spokesperson directed us to the group's analysis in September that said cable broadband providers “have long been committed to and are continually expanding, deploying, and upgrading their networks in all communities, regardless of income or race.” The analysis, which used FCC and Census Bureau data, found "virtually no difference” in cable broadband availability “based on race or ethnicity in urban areas." AT&T, CTIA and ACA Connects declined to comment. Verizon, T-Mobile and Lumen didn’t comment.

Public interest organizations disagree somewhat on how to define digital discrimination. Some see the term as interchangeable with digital redlining, while others consider digital redlining a subset of digital discrimination. The public interest community is “still trying to figure out” what the FCC could consider as digital discrimination, said Public Knowledge Senior Policy Counsel Jenna Leventoff, including things like whether the level of customer service is the same across areas.

The Electronic Frontier Foundation prefers “digital redlining” because “that’s effectively what the issue is,” said Senior Legislative Counsel Ernesto Falcon. There’s “a lot of overlap between income status and race and deployment strategies” from ISPs and cities, Falcon said, saying low-income parts of a city “tend to not be upgraded to 21st century infrastructure.” The eventual rulemaking will give the FCC the ability to examine the severity of digital redlining, Leventoff said, because now there are only a handful of studies “showing that it’s happening in certain cities.”

NDIA sees digital redlining as one form of digital discrimination, Huffman said, saying she’s glad the FCC is starting with how to define the terms laid out in the infrastructure law. “There’s multiple types of practices that providers engage in,” whether intentional or not, that "result in discrimination,” she said. Huffman cited an example where a person at the grocery store in a higher-income area may be able to switch their plan in person, while a low-income person may need to call a phone number instead. The FCC should consider collecting qualitative data that could be analyzed to find any patterns, she said.

The agency will need to develop a formula balancing the cost of provisioning broadband and the expectations of profit, Falcon said. The public and advocates “have no way of providing the evidence the FCC needs to figure this out,” he said: “They have to investigate themselves.” The FCC didn’t comment.

The proceeding may be challenging without a fifth commissioner and because it’s a “completely new thing for the FCC to engage in outside of its Title II authority,” Huffman said. The agency needs to consider how it will get the information it needs because “I suspect that the providers are not going to want to provide it,” Leventoff said, citing ISP claims that digital redlining was happening as part of the California Public Utilities Commission's proceeding on the issue (see 2107060068).

One factor the FCC will need to determine is a “good standard” for how many years it would take for an ISP’s investment to be fully recovered, Leventoff said, because it establishes that going below that number isn’t “appropriate for the delivery of an essential service.” How ISPs will respond to the proceeding will vary based on the company and their deployment strategies, Falcon said.