Broadband Experts Debate Impact of FCC Digital Discrimination Order
Broadband experts debated the effectiveness of the FCC's digital discrimination order during a Broadband Breakfast webinar Wednesday. Panelists disagreed on whether the rules will lead to rate regulation or overreaching enforcement actions. Adopted by a 3-2 vote during a November agency meeting, the rules were mandated by the Infrastructure Investment and Jobs Act (see 2311150040).
The FCC is most likely to focus its enforcement efforts on the "worst and most visible disparities," said Public Knowledge Senior Vice President Harold Feld. "I do not expect that this will be about micromanaging ISPs," he added. It "will be much more about constraining what we might think of as the worst kinds of inequalities," Feld said, citing a situation where an ISP offers only fiber services in a suburb and DSL in an urban area.
"We all share the same objective here" in "ensuring access to broadband for all Americans without discrimination," said Free State Foundation President Randolph May, but the order has some "serious" legal issues. The decision to adopt a disparate impact standard "raises questions of the FCC's statutory authority," May said, and goes "way too far." May disagreed with Feld about whether the rules will lead to micromanaging ISPs. "There is a high likelihood the FCC will in fact be micromanaging the ISPs," he said, which would deter investment and innovation. Feld disagreed: "Anybody who thinks the FCC is going to micromanage has no idea about the staffing levels at the FCC or the resources that are available to them," he said.
The digital discrimination rules should help close the digital divide as states prepare for federal broadband deployment programs like NTIA's broadband, equity, access and deployment (BEAD) program, said Nicol Turner-Lee, Brookings Institution director-Center for Technology Innovation. "From a policy perspective, it at least provides some teeth into ensuring that these monies are not going to go to places where people who need it the most are going to be missed," Turner-Lee said. "What worries me a little bit is that we are placing a lot of attention on ISPs" rather than the states and localities responsible for implementing the BEAD program that have a history of discriminatory actions, she said.
The order "almost inevitably will lead to rate regulation in order for the commission to do what it says it wants to do," May warned, noting the FCC's order said the commission would consider whether an ISP's return on investment was a factor in the ISP's decision-making when a discrimination complaint is under review. The debate around rate regulation has existed for "many, many decades," Turner-Lee said. The internet "continues to grow, get cheaper, and to bring that back on something that is not as static and transactional as the internet would be a waste of time."