Advocates, Industry Disagree on Draft FCC Digital Discrimination Proposal

Consumer advocacy organizations and industry lobbied the FCC to make some changes to a draft NPRM aimed at combating digital discrimination, before the agency's Wednesday meeting. Commissioners will consider the item as required by the Infrastructure Investment and Jobs Act. The item stems from a notice of inquiry the FCC adopted earlier this year. It received mixed comments from advocates and industry on the extent of digital discrimination and possible solutions (see 2205170071).

Among the draft item's proposals includes defining digital discrimination as "actions or omissions by a provider that differentially impact consumers' access" to broadband when such actions or omissions "are not justified on grounds of technical and/or economic infeasibility." If adopted, it would seek comment on whether the definition should be based on disparate impact, disparate treatment, or both.

Several consumer advocacy organizations lobbied FCC staff on the draft item. The National Digital Inclusion Alliance sought adoption of a discriminatory impact standard for determining whether digital discrimination is occurring, in a meeting with Chairwoman Jessica Rosenworcel and FCC aides, per an ex parte filing in docket 22-69. Disparate treatment and intentional discrimination “are not necessarily interchangeable,” the Lawyers' Committee for Civil Rights Under Law told Rosenworcel aides. The infrastructure law doesn’t treat technical or economic feasibility as “justifications or excuses for discrimination,” the group said: "It does not create a safe harbor.” NDIA raised concerns about the “transparency in the investigation and resolution of complaints relating to digital discrimination,” asking the FCC to also seek comment on “how prior proceedings inform the understanding” of economic and technical feasibility.

A coalition of consumer advocacy groups asked the FCC to seek comment on how it can ensure non-discrimination obligations are applied to NTIA's broadband, equity, access, and deployment program and use the new consumer broadband labels to facilitate enforcement. The commission should "make sure it reaches broadly on all available precedent," said the Leadership Conference on Civil and Human Rights, Common Cause, Communications Workers of America, United Church of Christ Media Justice Ministry, and National Consumer Law Center, in a meeting with Rosenworcel aides. The National Urban League sought additional questions and urged the FCC to establish an Office of Civil Rights: It "can assist the commission in thoughtfully working through critical proceedings that impact the communication needs of historically underserved communities."

Industry groups disagreed and urged the FCC to consider various obstacles providers may face in deployment. Technical and economic feasibility "must still be considered for discrimination claims based on both disparate treatment and disparate impact," the Wireless ISP Association told Rosenworcel aides, citing regulatory uncertainty as a "market entry and growth barrier to small businesses." ACA Connects told aides to Commissioners Brendan Carr and Nathan Simington in separate meetings that the item should focus on "constructive measures to facilitate equal access" rather than "counterproductive and unwarranted mandates." The FCC should “be careful not to undermine the efforts of broadband providers,” the group said.

The item should "address the disparity of language access by requiring that documentation and materials are available in multiple languages," Asian Americans Advancing Justice told an aide to Rosenworcel and FCC Digital Discrimination Taskforce staff, per an ex parte filing. The group said the FCC should "analyze and report data it receives through the complaint process" to "identify bad actors and discrimination." Public Knowledge sought a question on penalties that can identify, prevent, and eliminate digital discrimination, in a meeting with aides to Commissioner Geoffrey Starks. The group suggested "mandating unbundling or interconnection so that others wishing to provide equal access to broadband services can do so."