Disagreement Continues Among Industry, Advocates on Digital Discrimination

Disagreement continued between industry groups and consumer advocacy organizations on how the FCC should implement rules to curb digital discrimination as required by the Infrastructure Investment and Jobs Act in reply comments posted through Friday in docket 22-69 (see 2302220045). Commenters disagreed on how to define digital discrimination and the technical or economic limitations providers may have for broadband deployment.

The FCC "must be guided by its governing statutes and not grasp at more power than Congress has given it," said the Information Technology and Innovation Foundation. The group noted that there is "little evidence in the record to suggest that there is even a discrimination problem in need of a crackdown on ISPs." The Free State Foundation agreed, asking the FCC to adopt an intent-based definition of digital discrimination rather than disparate impact. The commission "should not treat low adoption, by itself, as discriminatory or evidence of discrimination," FSF said.

Consumer advocates and local officials disagreed. "Adopting a disparate-impact based definition is within the FCC’s authority and better furthers the goals of ensuring that remedial actions are taken to prevent digital discrimination," said the California Public Utilities Commission. The CPUC said that many people are "without equal access to broadband regardless of the broadband providers’ intent." The FCC "must act to protect people living in monopoly areas from discrimination, and ensure that the benefits of broadband competition are enjoyed by all," said Free Press.

Technical and economic infeasibility are "critical factors" for broadband deployment, said Verizon. The FCC "cannot require broadband service providers to take actions that are not possible given the current state of the technology used to provide a particular broadband offering," it said. AT&T noted the FCC has "long shielded nondominant carriers from buildout obligations and substantive rate regulation for sound policy reasons" and should not "dictate" where and when a carrier must deploy. Congress didn't authorize the FCC to "engage in price regulation of broadband services," said NCTA, asking the commission to also preempt state and local laws that conflict with any new rules.

A coalition of local officials, led by NATOA, urged the FCC to "embrace and promote state and local efforts to eliminate digital discrimination." The Texas Coalition of Cities For Utility Issues City of Boston, and City of Portland, Oregon agreed in joint comments and said that any efforts to stop digital discrimination must provide local governments "the ability to continue current efforts to bridge the digital divide in a manner that meets local needs." State and local governments are "in a unique position to combat digital discrimination at every level" and "deserve every authority to combat digital discrimination," said the National Digital Inclusion Alliance and Common Sense Media in joint comments.

NTCA noted that economic feasibility "plays a determinative role in broadband deployment." The group also asked the FCC to limit its final rules to apply only on a prospective basis. Incompas agreed and said that "considering barriers to deployment in this proceeding" will allow the commission to "take a more prospective approach, rather than an after-the-fact defensive approach to ensuring that everyone is connected."

The Wireless ISP Association asked the FCC to account for the "unique challenges of small providers" and other regulatory barriers to deployment. Small providers "face continuing private sector and regulatory market entry and growth obstacles," WISPA said, adding such providers "would be particularly harmed by proposals that are designed to address the alleged problems caused by larger providers." Don't expand any rules to include infrastructure owners, said the Wireless Infrastructure Association. The group said that infrastructure owners "cannot ... discriminate against [broadband internet access service] subscribers" because they don't sell services directly to end users. The Utility Reform Network said any rules should apply to entities that deploy physical network infrastructure, provide BIAS subscriptions, and maintain equipment or infrastructure "regardless of the technology used to deliver service."

The American Civil Liberties Union urged the FCC to adopt a broad definition of digital discrimination, adding the list of enumerated classes should include subscribers and non-subscribers. "This statute was created because many individuals cannot subscribe to the internet," ACLU said. The FCC should consider the "technical indicia of broadband quality as well as non-technical factors that equally impact broadband quality," said the Multicultural Media, Telecom and Internet Council. "The high price of broadband service, the lack of availability of connected devices, and low rates of digital literacy can all serve as significant impediments to broadband adoption," MMTC said.