Industry Urges FCC to Wait to Adopt Any Additional Discrimination Rules

The proposed reporting and internal compliance program requirements "would grow the thicket of regulatory burdens imposed on ISPs," said the Free State Foundation, adding that it would compound the "major questions doctrine problem" raised in the commission's November order. "Given that the commission has not demonstrated any existing problem of digital discrimination, its proposal to impose new requirements on ISPs and increase bureaucracy would not materially benefit consumers," FSF said. FSF also warned that subjecting ISPs to a disparate impact liability based on claims that pending or planned projects "could be conjectured to result in differential outcomes for members of protected classes in some area for some time" is "likely to have a chilling effect on ISPs' business, making them averse to forward-looking planning."

NCTA agreed, saying the proposals would create "substantial and unnecessary costs on companies across the broadband ecosystem" and "impose significant implementation challenges." NCTA also noted the proposed compliance program requirement is "premature" because "the majority of the rules will not go into effect until late March" and the FCC and providers haven't "had experience applying these rules." The proposed requirements are "another step in the wrong direction," said USTelecom. The proposed compliance program "would constitute an enormous intrusion into how broadband providers organize their businesses and make operational decisions," USTelecom said. Don't adopt the proposed "affirmative obligations," said CTIA. The group warned such action by the commission would "unlawfully hinder, rather than facilitate, equal access to 5G and other modern broadband technologies."

The New York State Public Service Commission disagreed, saying the supplemental information would help state regulators "track network expansion and create their own policies that address instances of digital discrimination specifically related to the unique circumstances occurring within the state that are not already addressed by the FCC." The PSC added that providers are "best suited to identify and correct instances of digital discrimination internally, regardless of whether the discrimination is intentional or not," and should be required to "conduct periodic training on the FCC’s digital discrimination rules."

"Establishing an Office of Civil Rights at the FCC would be a precipitous move," said TechFreedom, adding the FCC has "managed to interpret and enforce the provisions in the Communications Act for 90 years without the need for" such an office. The commission should instead "begin a whole new proceeding to explore the efficacy of such a substantial change in direction of the FCC" through a notice of inquiry, the group said.

Several advocacy organizations disagreed and urged the commission to create the office. Public Knowledge said a "failure to meaningfully consider inequalities experienced by marginalized communities can skew policies so only those with the most power benefit." The group suggested that the FCC follow a similar process as how it established the Office of Economics and Analytics and "form a working group of FCC staff to assist with the development of an Office of Civil Rights."

An Office of Civil Rights would ensure the FCC is better equipped to investigate potential discriminatory practices and conduct outreach, added the National Council of Negro Women. The California Public Utilities Commission said the FCC could use the proposed office to "strengthen collaboration with state and local authorities to combat digital discrimination through monitoring and enforcement."

"High-speed broadband has become an integral platform for education, employment, health care, economic development, civic participation, and communications with family and friends," said

A coalition of consumer advocacy groups encouraged the FCC to hire individuals with experience in enforcement issues related to fair housing, employment, federal benefits and disability discrimination. The coalition included the Leadership Conference on Civil and Human Rights, American Association of People with Disabilities, Asian Americans Advancing Justice, Communications Workers of America, National Consumer Law Center, National Disability Rights Network, National Hispanic Media Coalition, National Urban League and United Church of Christ Media Justice Ministry.

The FCC should "provide appropriate relief for smaller and rural broadband providers that would incur regulatory costs and burdens without any evidence that they are engaged in practices resulting in discriminatory impacts," said ACA Connects, NTCA and the Wireless ISP Association in joint comments. The groups also urged the FCC to defer any action on its proposals "until there has been an opportunity to assess the effectiveness of the initial rules." WTA asked the FCC to exempt rural local exchange carriers (RLECs) from "preparing and filing the contemplated annual report" and proposed compliance program "unless and until such individual RLEC is found by the commission to have violated its rules" given the "lack of any history or evidence of RLEC digital discrimination."