Industry, Advocates Disagree on Digital Discrimination Standards

Industry groups and consumer advocacy organizations disagree about how the FCC should define digital discrimination and ways to facilitate equal access to broadband, according to comments posted through Wednesday in docket 22-69. The commission adopted an NPRM in December seeking comment on rules to combat digital discrimination, as required by the Infrastructure Investment and Jobs Act (see 2301190049).

Discrimination "requires disparate treatment," said the Information Technology and Innovation Foundation. The "necessity for the commission to consider economic and technical feasibility is not mere surplusage," ITIF said. Congress "directed the Commission to focus on intentional discrimination rather than unintended disparate impact," said AT&T: The "specter of unpredictable disparate-impact liability would impair broadband competition and pull the plug on broadband investment," it said. This was echoed by T-Mobile. Adopting a disparate impact standard would "harm investment and deployment to hard-to-reach areas," said the Free State Foundation. Rules making ISPs "liable for unintentional disparate impact will potentially chill infrastructure upgrades and deployments to challenging geographical areas in order to avoid legal risks," FSF said.

The disparate treatment standard "based on the intent of the provider" would "best adhere to the text of the statute and relevant case, as well as maximize the future investment in broadband networks," said Jeffrey Westling, American Action Forum director-technology and innovation policy. Digital discrimination "should not be defined to include discriminatory effects where there is a lack of discriminatory intent," said ACA Connects, which NCTA echoed in similar comments. The New York City Office of Technology and Innovation backed adopting both a discriminatory intent and disparate impact framework to ensure that "intentional and disparate impacts are considered contextually." The New York Public Service Commission said final rules should "cover additional services which may require a broadband service to use, along with any third-party entities that are responsible for the deployment, maintenance, and provision of broadband service by a provider."

Define digital discrimination "by the impacts experienced by consumers, not the intent of a broadband provider to discriminate," said the National League of Cities. An intent-based standard "will in practice make it nearly impossible for consumers and their advocates to seek remedy to discrimination," the group said. "High costs and punitive anticompetitive practices have a disproportionate impact on low-income families and historically marginalized communities," said Starry, citing "mandatory credit checks, excessive equipment deposit fees, early termination fees, and look-backs on arrears" as practices that "disproportionately impact marginalized communities." The current definition of digital discrimination is "narrow and limited," said the LGBT Technology Partnership. The group supported expanding the definition to include "age, sexual orientation, gender, gender identity, or disabilities."

Establish a safe harbor for any carrier that "serves in an area with [a] population and other characteristics substantially similar" to those in areas where eligible telecom carriers operate, said NTCA. Doing so would "further minimize regulatory uncertainty about circumstances that could give rise to liability," said CTIA. The Wireless ISP Association backed adopting a safe harbor for high-cost USF support in "areas where they have deployment obligations and for the duration of the 10-year funding term."

The digital divide is a "multifaceted issue and solutions must be comprehensive and collaborative," said the National Digital Inclusion Alliance and Common Sense Media in joint comments. The definition of digital discrimination "must include nontechnical factors, such as customer service and advertising practices," the groups said. The FCC "must revise its informal complaint process to be more transparent, accountable, and inclusive," said The Utility Reform Network (TURN). The informal complaint process is "often the first and only way consumers or subscribers interact with the commission," TURN said, adding cooperation with state and local governments would "avoid duplication of effort, increase situational awareness closer to communities, optimize limited investigatory and enforcement resources, and create synergies between parallel or joint efforts."

The FCC could leverage existing programs like the affordable connectivity program to "improve both access and adoption rates," said the R Street Institute. It warned against relying on fixed broadband as "a one-size-fits-all approach to closing the digital divide" and said the FCC should "explore digital literacy programs instead of overburdensome enforcement that will likely reduce broadband investment." There "must be a concentrated effort to create technical assistance programs with trusted community advocacy organizations," said a coalition of Asian American and Pacific Islander advocacy organizations, led by the National Asian/Pacific Islander American Chamber of Commerce and Entrepreneurship, in joint comments. Make ACP permanent because the benefits of connectivity "are only achieved if those with access can subscribe to the service," they said.

A coalition said state and local governments "should act concurrently" with the FCC and have "robust authority to manage their rights-of-way and other property." The FCC should also encourage states to "eliminate preemptive and restrictive laws that hinder local governments' ability to address digital discrimination," said the coalition, which included Philadelphia, Oklahoma City, Minneapolis, NATOA and state commissions.