Groups Disagree on Severity of Digital Discrimination, Solutions

Several groups disagreed whether the infrastructure law gave the FCC authority to include affordability in its rules. Affordability is a "key component," said NATOA: It would "significantly undermine what Congress sought to achieve" if it's not considered part of equal access. The FCC could make the affordable connectivity program to "help ensure affordability is not a hurdle to adoption," said USTelecom, saying the proceeding shouldn’t be used as a “back door way to accomplish other policy objectives, such as price regulation or other competition objectives.”

Affordability is "tellingly" not included in the factors listed in the infrastructure law, said the Wireless ISP Association: The FCC "is not required to consider it in adopting rules to prohibit intentional digital discrimination." Proceed "cautiously," WISPA said, "as adopting rules that are too broad to prevent or eliminate discrimination will discourage deployment and investment for service providers, especially small providers."

Define digital discrimination as "any time when one community has better broadband service than another, when the meaningful difference between the communities is the demographic characteristics, including the economic status, of its residents," said Public Knowledge: "Adopting a general prohibition on discrimination allows the Commission to cover the wide array of failure points that exist in the broadband ecosystem." A coalition including the Electronic Frontier Foundation, the Greenlighting Institute, New America's Open Technology Institute and Benton Institute for Broadband & Society, said it should be defined as "discriminatory infrastructure deployment choices made based on socio-economic status." ISPs are "choosing to deploy fiber within their network and, most importantly, where they are not deploying it," the groups said.

Some providers disputed that they engaged in digital discrimination. AT&T said it "does not engage in such discrimination" and "is aware of no credible allegations that other broadband providers do." There's "every reason to believe that factors other than discrimination are likely to be the primary drivers of continuing gaps in broadband access," and the FCC should "respect Congress's deliberate choice to specify which grounds are subject" to the eventual rulemaking, said Verizon. The FCC should consider the "complex array of technical, economic, and other constraints associated with broadband deployment," it said.

There's "virtually no evidence of discrimination in U.S. broadband markets," said the Information Technology and Innovation Foundation. The group analyzed the demographics and connectivity of six cities and said allegations of racial discrimination in broadband are "unsupported" because "virtually every household sampled had access to high-quality broadband networks." The FCC could focus on devices and digital literacy funding, ITIF said, because "the proportion of low-income Americans without home broadband is almost identical to that without a computer." The infrastructure law "makes no finding ... that discrimination exists in the market for broadband services," said ACA Connects. The FCC "must account for issues of technical and economic feasibility," the group said.

Define "equal access" broadly to include "non-technical quality-of-service attributes," said the Multicultural Media, Telecom and Internet Council. Take a "holistic approach," with final rules "grounded in a framework that is informed by disparate impact analysis.” Equal access should be interpreted as "requiring rates to not only be comparable, but also affordable for the average household," said the National Digital Inclusion Alliance. Allow flexibility in final rules as additional data on digital discrimination arises, said the New York Public Service Commission. The PSC said the consumer complaint process should also be modified so consumers without broadband access can still make a complaint.

The NOI is "a significant step to identifying systemic harms caused by digital discrimination," said Starry. The ISP backed examining "prohibitive terms and conditions that result in punitive practices or that act to isolate a subset of consumers based on their income, credit status, or neighborhood." The FCC could "examine how participation rates might be a product of existing disparities," said Free Press. The broadband adoption gaps based on income and educational attainment represent the "widest discrepancies," said NTCA. Use this proceeding as an opportunity to "fill surgically any specific gaps that have not been already addressed by other constructs," the group said. "Closing the adoption gap is just as important, if not more important, than closing any remaining deployment gap," said T-Mobile: It's a “major driver of the digital divide."

Consider "replenishing the spectrum pipeline" and improving federal coordination to promote broadband availability, suggested CTIA: It "keeps government and industry focused on next steps to meet America’s ever-growing demand for new wireless services and applications." Allow carriers with eligible telecom carrier designation and their affiliates a safe harbor so the FCC can "focus its attention to address situations where digital discrimination may occur because of non-economic factors," said the Utah Rural Telecom Association. Establish "presumptive categorical exclusions or safe harbors for certain situations where differences in deployment are not digital discrimination," said NCTA.