Connect with us

Digital Inclusion

Does Digital Discrimination Require Intent? In FCC Proceeding, Commenters Disagree

FCC laws should not include unintentional acts of discrimination, say industry voices.

Published

11 months ago

on

Illustration about fixing discrimination online from Harvard Business Review

WASHINGTON, February 23, 2023 – The Federal Communications Commission should adopt an intent-based definition of digital discrimination, say internet service providers in comments to the FCC. 

In December, the FCC issued a Notice of Proposed Rulemaking to implement provisions of the Infrastructure Investment and Jobs Act to prevent and eliminate digital discrimination. The Infrastructure Act of 2021 requires the agency to enable “equal access” for all Americans, which is defined as the “equal opportunity to subscribe to an offered service that provides comparable speeds.” 

As part of its Notice, the FCC requested comment on adopting a definition of digital discrimination that includes actions by a provider that intentionally or non-intentionally impact consumers’ access to broadband interest access without justification on grounds of technical or economic infeasibility. 

Intentional discrimination 

Imposing liability on broadband internet service providers by including non-intentional discrimination would harm investment and deployment in hard-to-reach areas of the country, said the Free State Foundation, a nonpartisan think tank, in its comment. 

“Rules imposing unintentional disparate impact liability would result in penalizing a broadband ISP that made good faith efforts to ensure equal access for all subscribers in a given area, but came up short,” read the Free State Foundation’s comment. 

Service provider AT&T added that “because no broadband provider can deploy everywhere at once, any broadband provider would inevitably engage in ‘discrimination’ under this standard.” Employing this definition would impose massive unfunded deployment mandates and regulation of broadband rates and terms, said the company.  

Furthermore, new regulatory burdens would undermine incentives for broadband deployment, said AT&T. No provider would sink money to overbuild existing networks if doing so would expose it to liability for failing to do so everywhere at the same time, continued its comments. 

Careful reading through the IIJA would suggest that Congress intended for the Commission to ban intentional discrimination, argued comment from service provider T-Mobile.  

In fact, said T-Mobile, a disparate impact framework would put the Commission on a “collision course” with the overall structure of the IIJA which allocates billions of dollars to connect unserved and underserved locations through a competitive bidding process. The process limits a provider’s ability to control its deployment ratio, which would prove to be a liability and may deter the company from participating, said T-Mobile. 

“Deployment is an incremental process that varies in pace based on a wide range of variables, none of which are related to discriminatory animus,” argued trade association USTelecom in its comment.  

Internet advocacy group Public Knowledge disagrees. Service providers “urge the Commission to adopt the most toothless, least effective regulations possible,” read its comment.  

“Congress does not care about motives or accept excuses,” said Public Knowledge, arguing that providers should be held accountable for discriminatory actions regardless of intent. 

Adopting a definition of digital discrimination that included non-intentional grievances is appropriate, agreed advocacy group Free Press, as it fulfills Congress’ requirement to adopt rules that would facilitate equal access by preventing and identifying discriminatory actions. 

Carriers who profess certainty that they do not discriminate should have nothing to fear, read Free Press’ comments. 

Service providers argue that the agency should instead target its rules on digital discrimination only where it can be unmistakably proven to exist and cannot be excused by financial, geographical, technological, or other limitations. 

Safe harbors and feasibility 

Indeed, the Infrastructure Act urges the FCC to consider the issues of technical and economic feasibility facing providers. However, there is considerable debate regarding what constitutes an economic or technical limitation. 

In its notice, the FCC asked for comment on whether technical infeasibility should “require a showing that providing service was technically impossible.”  

T-Mobile in its comment answered that the FCC should not require proof of impossibility but should consider a “totality of circumstances” according for regulatory and other barriers to deployment. 

Instead, service providers urged the FCC to adopt safe harbors to ensure that discrimination complaints recognize Congress’s technical and economic feasibility limitation. The safe harbors outlined in T-Mobiles’ comments would provide liability protection for providers that: met or exceeded any applicable build-out requirements in the terms of its wireless license; or is otherwise subject to an enforceable commitment to deploy service to a given population. 

These suggested safe harbors, however, would be “inconsistent” with the purpose of the IIJA, read comments by Public Knowledge. The Act directs the FCC to counter digital discrimination and safe harbors could allow “broadband providers who engaged in digital discrimination to avoid having to take remedial steps,” it argued. 

Furthermore, Public Knowledge continued, projects that are technologically possible should be considered both economically and technically feasible unless a provider can present evidence to the contrary.  

Efforts to diminish discrimination 

The FCC’s tool for eliminating digital discrimination include its Universal Service Fund programs, including the Affordable Connectivity Program established in 2021, which provides $35 per monthly discounts for broadband services to most qualifying homes.

Also, in June 2021, the commission chartered the Communications Equity and Diversity Council to present recommendations to the FCC on advancing digital equity for all Americans.

Related Topics:

Contributing Reporter Teralyn Whipple, who joined Broadband Breakfast in 2022, studied marketing at Brigham Young University. She has reported extensively on broadband infrastructure, investments and deployment. She has also headed marketing campaigns for several small companies.

Continue Reading
Click to comment

Leave a Reply

Digital Inclusion

Provider Says FCC Should Freeze Affordable Connectivity Program Transfers

After February 7, the FCC is not going to require ISPs to accept ACP transfers.

Published

3 days ago

on

January 13, 2024

By

Photo of FCC Deputy Bureau Chief Noah Stein from Fordham University

WASHINGTON, January 13, 2024 – The Federal Communications Commission will start to shut down a key internet subsidy program for low-income households early next month, but one provider thinks the agency needs to do more.

The FCC said Thursday that the Affordable Connectivity Program will stop accepting new enrollments after February 7. New internet access providers can’t join the program after that date, either.

According to MVNO provider TruConnect, the FCC needs to broaden its plan. The virtual wireless company said the agency should freeze the ability of current ACP enrollees to transfer their benefits to another internet provider after February 7.

“A benefit transfer freeze during this time is in the best interest of ACP households, ACP providers, program integrity and program efficiency until funding either expires or is reappropriated,” TruConnect’s lawyer Judson H. Hill said in a filing posted on the FCC’s website today.

Hill said he communicated TruConnect’s position on Jan. 9 to Noah Stein, Deputy Bureau Chief of the FCC’s Wireline Competition Bureau, which issued the FCC’s 15-page ACP shutdown order two days later.

FCC’s shutdown order restricts the transfer of ACP benefits

According to the FCC, about 22 million low-income households have enrolled in the ACP, which Congress established in late 2021 with $14.2 billion to take $30 off monthly internet bills. The program’s last full month will be April without new funding by Congress, the FCC said.

The FCC’s rules provide that “households may transfer their ACP service benefit once per calendar month, with limited exceptions.”

In Thursday’s order, the FCC said it would not “require providers to perform transfer-in transactions for enrolled ACP households seeking to transfer their benefit.”

Instead, the FCC said it will allow “providers to choose whether to accept transfers after the ACP enrollment freeze.”

TruConnect didn’t provide any specifics behind its support for a transfer freeze.

In his discussion with the FCC’s Stein, Hill said he “emphasized that once program enrollments are frozen, that to achieve an orderly program wind down until funding expires that the [FCC] should also freeze ACP household subscriber benefit transfers between ACP programs providers.”

TruConnect’s website is effectively a portal to sign up ACP households and includes offers such as free 8 GB of high-speed data, free unlimited talk and text, and an option to buy a tablet for $10.01.

The ACP is administered by the Universal Service Administrative Co. under the FCC’s oversight. USAC’s website does not appear to have information on how many ACP enrollees have transferred to a new internet provider during the 24-month life of the ACP, which was created to help struggling Americans rebound from the pandemic.

Ted Hearn is the Editor of Policyband, a new website dedicated to comprehensive coverage of the broadband communications market. This piece was published on Policyband on January 12, 2024, and is reprinted with permission.

Continue Reading

Broadband's Impact

FCC Issues Timeline for ACP Wind Down

The FCC order came a day after bipartisan legislation was introduced to extend ACP.

Published

4 days ago

on

January 12, 2024

By

Photo of hourglass via iStock.

WASHINGTON, January 12, 2024 – The Federal Communications Commission announced on Thursday that starting February 8 it will no longer accept new enrollments for the Affordable Connectivity Program, barring Congressional approval of additional funding for the low-income program.

The commission issued a 15-page order detailing its timeline and requirements to gradually phase out the program. The first in a series of deadlines is set for January 25, when providers must notify participants of the program’s anticipated end for the first time.

The FCC’s order came the day after bipartisan legislation was introduced in both the Senate and the House, proposing an additional $7 billion for the ACP program.

If passed, this funding would enable the FCC to extend the ACP until the year’s end, potentially negating some of the wind-down steps detailed in the recent FCC order.

Introduced in January 2022 to replace the Emergency Connectivity Fund that arose during the COVID-19 pandemic, the ACP offers monthly stipends of $30-75 for internet service to qualifying U.S. households.

In the recent order, the commission notes that with the Infrastructure Investment and Jobs Act, Congress enacted several changes to the ECF Program to transform it from an emergency COVID-19 program to a longer-term broadband affordability program. 

The FCC continues to change the program to address participant needs. Most recently, the commission raised the monthly ACP benefit to $75 for high-cost rural areas and directed the Universal Service Administrative Company to accept applications from interested providers.

Yet, due to concerns about potential confusion, the commission canceled the plans for USAC to process applications in a recent order. 

Absent Congressional intervention, the FCC’s Bureau will announce the last fully funded month of the program in late February, currently projected to be April 2024.

Fifteen days after that announcement, providers will be required to send a second notice to ACP participants about the program’s end. The third notice issued will coincide with the last billing cycle that the full ACP benefit is applied to. 

Providers must secure a household’s explicit agreement to continue to receive broadband services after the end of the ACP.

In the order, the commission said it will begin to inform organizations that received outreach grants to cease outreach work focused on enrollment.

On Friday, the National Digital Inclusion Alliance, alongside four community partner organizations representing the 240 outreach coordinators for the ACP, filed a letter to the FCC asking that ACP outreach grantees be able to redirect their funded work toward program wind-down activities, including “raising awareness about the potential end of the ACP.”            

Continue Reading

12 Days of Broadband

12 Days: FCC Issued Rules Against Digital Discrimination

In religious traditions including Buddhism, Hinduism, Judaism and others, 8 represents the idea of balance, justice and fairness.

Published

3 weeks ago

on

December 29, 2023

By

Illustration by DALL-E

WASHINGTON, December 29, 2023 – In a vote split 3-2 along party lines, the Federal Communications Commission moved to adopt rules aimed at preventing discrimination in access to broadband services, on November 15.

Under the Infrastructure Investment and Jobs Act, the agency was tasked by Congress to enact regulations in 2023 aimed at eliminating digital discrimination and preventing its recurrence. The law amended the Communications Act to include the standard that “subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service.” (47 U.S.C. 1754)

The FCC’s new rules ban service providers from broadband discrimination by implementing a “disparate impact” standard. This standard aims to hold internet service providers accountable for practices that result in unequal broadband access among marginalized groups, irrespective of the providers’ intentions.

The shift departs from the former “disparate treatment” norm, which long upheld that either the government or third-party plaintiffs had to present proof of deliberate discrimination by a business to establish liability.

The new regulations implement a rule that digital discrimination can occur even if there is no discriminatory intent, based on criteria like income or race, is involved.

How will the agency conduct enforcement?

The commission will now have enforcement powers available, and investigations may be initiated through a complaint process.

Broadband providers criticized the agency and threated to sue because of the potential broad application of the new standard, fearing it might penalize routine business practices. Their efforts aimed to narrow the definition of digital discrimination to actions specifically designed to disenfranchise particular communities.

Before the agency’s action in mid-December, 24 organizations penned a letter to Congress urging its members to oppose the FCC’s rulemaking in mid-December.

Differing views on the rule’s effect

Experts held differing views regarding the probable effects of the FCC’s rules at a November Broadband Breakfast Live Online event. 

At the event Harold Feld, senior vice president at public interest group Public Knowledge, maintained that the rules’ impact would be minimal for the initial 60 days after implementation, and then, most likely remedy only the “worst and most visible disparities” in broadband access. 

Center for Technology Innovation at the Brookings Institution Director Nicol Turner-Lee cautioned that demonstrating instances of discrimination poses a significant challenge, as evidenced in other sectors such as housing, healthcare, and employment.

Others in the industry have raised concern that the Broadband Equity Access and Deployment Program may not effectively address the issues faced by marginalized groups. In a recent Expert Opinion piece, Emma Gautier from the Institute for Local Self-Reliance contended that urban areas, significantly impacted by digital redlining, might face greater obstacles in obtaining BEAD funding. This challenge stems from the infrastructure law’s predominant emphasis on rural development. 

The situation is further complicated by flawed FCC maps, she said which exaggerate coverage, speeds, and competition, making it notably difficult or perhaps impossible for most urban zones tagged as “served” to access BEAD funds.

See “The Twelve Days of Broadband” on Broadband Breakfast

Continue Reading

Signup for Broadband Breakfast News



Broadband Breakfast Research Partner

BroadbandNow: Internet Provider Search and research on the digital divide

Trending