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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.

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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.

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Reporter Jericho Casper graduated from the University of Virginia studying media policy. She grew up in Newport News in an area heavily impacted by the digital divide and has a passion for universal access and a vendetta against anyone who stands in the way of her getting better broadband.

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12 Days of Broadband

12 Days of Broadband: State Regulations and Children’s Safety Online

12 year olds (and older) having to age-verify on social media may become more common going forward.

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January 3, 2024

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January 3, 2024 – A nationwide push to restrict teenagers’ online actions gained ground in 2023 as several states implemented stringent laws targeting social media use among youth.

In March, Utah ventured into uncharted territory when Republican Gov. Spencer Cox signed two measures, H.B. 311 and S.B. 152, mandating parental consent for all minors – 17 and under – before they can register for platforms like TikTok and Meta’s Instagram. For decades, the default standard of the 1998 Children’s Online Privacy Protection Act has been no restrictions on social media use by kids 13 and over.

The pair of bills, which do not go into effect until March 2024, require individuals under 18 to gain parental consent to open a social media account, bar minors from accessing social media platforms between the hours of 10:30 p.m. and 6:30 a.m., and grant parents full access to their child’s social media accounts.

In October, Utah announced a lawsuit against TikTok, alleging that the app deploys addictive features to hook young users. The lawsuit raises additional concerns regarding user data and privacy, citing that TikTok’s China-based parent company, ByteDance, is legally binded with the Chinese Communist Party. 

Arkansas, Montana may be following Utah

Soon after, Arkansas took a similar step as Republican Gov. Sarah Huckabee Sanders signed Act 689, named the Social Media Safety Act, in April 2023. The newly approved act, aiming to mandate age verification and parental consent for social media users under 18, was set to come into effect on September 1. 

However, on that very day, U.S. District Judge Timothy Brooks granted a preliminary injunction following a petition from the tech trade industry group, NetChoice Litigation Center. Their contention was that the new law infringed upon the First Amendment’s freedom of expression guarantee.

In May, Montana Gov. Greg Ganforte signed legislation banning TikTok on all devices statewide, threatening fines up to $10,000 per violation for app providers like Google and Apple. Before the law took effect on January 1, Federal Judge Donald Molloy stopped the TikTok ban in late November, stating that the law exceeds state authority and violates the constitutional rights of users. 

Shortly after, TikTok filed a lawsuit against Montana. Judge Molloy found merit to numerous arguments raised by TikTok, including that TikTok has a number of safeguards in place surrounding user data.

Is Age verification a First Amendment issue?

Consumer groups, including the American Civil Liberties Union, have raised issues with the fact that many of these bills extend beyond merely mandating age verification solely for minors; they now necessitate age verification through proof of legal documents for anyone seeking to utilize social media within the states.

The issue was much discussed at a Broadband Breakfast Live Online session in November 2023, where child safety advocate Donna Rice Hughes and Tony Allen, executive director of Age Check Certification Scheme, agreed that age verification systems were much more robust than from a generation ago, when the Supreme Court struck down one such scheme. They disagreed with civil liberties groups including the Electronic Frontier Foundation.

On TikTok, 13 states joined in enacting bans over the use of the Chinese-owned platform being installed on government-issued devices. That brings to 34 the total number of states that have banned TikTok on government devices due to national security concerns. Additionally, more than 40 public universities have barred TikTok from their on-campus Wi-Fi and university-owned computers in response to these state-level bans.

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12 Days of Broadband

12 Days of Broadband: Net Neutrality Is the Issue That Never Dies

It’s been 11 years since Verizon filed arguments against the FCC in the D.C. Circuit Court of Appeals.

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January 2, 2024

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January 2, 2024 – The net neutrality debate was alive and well in 2023, more than 11 years since Verizon filed arguments against the Federal Communications Commission before the D.C. Circuit Court of Appeals in July 2012 in a partisan issue that has dominated telecom politics for more than a decade.

In the latest twist in the saga, the FCC proposed in October 2023 to reclassify broadband internet as a telecommunications service under Title II of the Communications Act.

If ultimately approved, the move would give the FCC broader authority over broadband providers. Crucially, the commission would be able to require that internet traffic is not sped up or slowed down artificially, meaning businesses could not pay providers for preferential treatment.

The issue is a contentious one at the FCC, and the commission can only take it up now that Democrats have a 3-2 majority, after several years of a 2-2 agency. Along with the strong digital discrimination rules adopted in November, it’s part of a Democratic effort to expand regulatory oversight of broadband as it becomes more essential for daily life.

Republicans in Congress and at the FCC oppose this, arguing it makes providers less likely to invest in new infrastructure. 

Controversy over Title II Reclassification

Title II brings a host of other regulatory powers, but the commission is proposing to abstain from wielding more than two dozen of the most onerous provisions on broadband providers if the service is recategorized. Those include explicit rate regulation and immediate Universal Service Fund contribution.

Net neutrality has been a longstanding goal of the Biden administration and Democratic FCC Chairwoman Jessica Rosenworcel, who referenced it in a letter to lawmakers after being confirmed as chairwoman in December 2021. 

“You’re dealing with the most central infrastructure in the digital age. Come on, it’s time for a national policy,” Rosenworcel said before voting in favor of the proposal at the commission’s October open meeting. It would pass 3-2 along party lines, putting the rules up for public comment.

That set the commission up for an earful: more than 40,000 comments on the proposed net neutrality rules have since been filed with the agency. Reply comments on the proposal are due January 17, 2024.

The broadband industry is largely opposed to the move. AT&T and T-Mobile, in addition to trade groups and conservative think tanks, filed comments arguing that the practices net neutrality rules are designed to combat are not widespread. They say using Title II authority to enforce net neutrality principles would stifle investment in broadband, both by opening providers up to sanctions for previously legal conduct and by introducing the potential for future commissions to pick up the 27 Title II provisions the FCC is choosing to forego.

“No ISP takes that assurance seriously,” AT&T said of the commission’s proposal not to regulate broadband prices as part of the rulemaking.

Advocacy groups like Public Knowledge argued the anticompetitive practices net neutrality rules aim to prevent are only uncommon because states like California enacted their own net neutrality laws.They said the move would protect consumers who depend on reliable and consistent internet access.

Broadband “is not a luxury but a necessity for education, communication, and participation in the economy,” the group said. “The FCC’s proposed action will restore its ability to oversee this essential service.”

This was expected to some degree. The Trump-era FCC received comments from many of the same players in 2017 when it repealed net neutrality rules – substantially similar to the 2023 proposal – set up by the 2015 commission under Obama. 

A prolonged nomination to break a deadlock

The commission was unable to move on the issue until this year because Democrats lacked a majority. President Joe Biden first nominated net neutrality advocate Gigi Sohn, a former FCC staffer and co-founder of Public Knowledge, to the FCC’s vacant fifth seat in 2021, but her nomination turned into a prolonged political fight. 

Republican senators hung on her position on the board of a nonprofit streaming service that was shut down after large telecoms sued for copyright infringement. They alleged Sohn would be unable to remain impartial on matters related to broadcasting and copyright – even after she moved to recuse herself from related issues.

Votes repeatedly stalled along party lines before Sohn withdrew her name from consideration in March of this year, citing campaigns against her nomination by telecom lobbyists.

“The unrelenting, dishonest and cruel attacks on my character and my career as an advocate for the public interest have taken an enormous toll on me and my family,” she said in a statement announcing her withdrawal.

Commissioner Anna Gomez had a comparably smooth nomination process. Biden announced her nomination in May after Sohn stepped back and the Senate voted to approve her four months later, finally giving Democrats a 3-2 majority on the FCC. Rosenworcel wasted no time taking advantage of the new math, announcing her intention to reinstate net neutrality rules one day after Gomez was sworn in as a commissioner in September.

Potential legal roadblocks

Following the October vote to move forward with the proposal, Republican Commissioner Brendan Carr pointed out a potential legal hurdle to reclassifying broadband as a Title II service this time around. The Supreme Court’s conservative supermajority has been less deferential to agencies’ interpretation of the law, and might consider the reclassification too significant a move for an agency to make without explicit approval from Congress.

Experts disagree on how likely a Supreme Court intervention is, as the FCC’s previous reclassifications of services under the Communications Act – both the 2015 net neutrality rules and a classification of DSL under Title II in 1998 – have passed legal muster.

At a House oversight hearing in November, Republican Commissioner Nathan Simington asked Congress to “put an end to the continued whipsawing of industry over the Title II fight” by passing new legislation governing the internet ecosystem. A Democratic bill that would codify broadband as a Title II service stalled after being introduced in both the House and Senate last summer.

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12 Days of Broadband

12 Days of Broadband: Nearly 10 Months Without FCC Spectrum Authority

As the global race for 5G dominance continues, a significant hurdle looms ahead.

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January 1, 2024

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January 1, 2024 – Nearly 10 months have passed since the Federal Communications Commission lost its authority to auction off fresh spectrum licenses on March 9, 2023. Further, there are no available bands in the nation’s spectrum pipeline. 

This prolonged situation has raised industry concerns about the future of 5G stemming from the scarcity of accessible mid-band spectrum and the uncertainty surrounding upcoming spectrum auctions.

The ongoing spectrum standstill prompted the need for a bill to be pushed forward to enable the FCC to authorize the sale of 8,000 2.5 GigaHertz (GHz) spectrum licenses sold to companies last year. President Biden signed the 5G Sale Act to reinstate limited FCC authority to auction the 2.5 GHz licenses on December 19.

T-Mobile is poised to leverage the over $300 million worth of spectrum licenses it secured to fortify its existing 5G networks. 

Otherwise stagnant spectrum pipeline prompts worries

A years-long battle between the Defense Department and the commercial telecommunications industry over access to the 3.1-3.45 GHz S-band raged between military and commercial establishments.

The Defense Department produced a report in December finding that the agency cannot currently share S-band spectrum with commercial users. The Pentagon currently uses the band for its air, land and sea-based radars, weapons systems and other electronics.

The Defense Department was required to produce the report investigating the potential for commercial use of the spectrum in conjunction with the Commerce Department’s National Telecommunications and Information Administration, which administers use of the airwaves by federal agencies. The study was required by the 2021 Infrastructure, Investment and Jobs Act. 

This spectrum band is considered important because it allows for longer-range transmissions than the millimeter-wave spectrum that makes up much of what has so far been available in the U.S.

The NTIA will continue to study opening the band in the future, either by exploring options that would make spectrum sharing possible or moving a government system to another band. 

National Spectrum Policy released

That and other studies laid out in the Biden Administration’s National Spectrum Policy released in November are set to be complete within the coming two years. The White House’s plan calls for a two-year study on potentially repurposing five spectrum bands, a total of 2,786 megahertz, and identifies the lower 3 GHz and the 7-8 GHz bands as primary contenders for a strong pipeline of spectrum for private sector use. 

The plan also calls for the federal government to develop a new process aimed at increasing communication in decision making between government and private sector stakeholders.

The last time the federal government freed up spectrum for commercial use was when the 3.45-3.55 GHz band was made available under Republican FCC chief Ajit Pai in 2020.

This uncertainty about spectrum places the U.S. in a troubling position. The government’s reservoir of new spectrum for private sector allocation appears to be drying up. The typically bipartisan process of replenishing it has ground to a halt.

Months of delays and disagreements over reauthorization

Many thought the shock of the lapse of the FCC’s spectrum auction authority would prompt quick action in the 118th Congress.. 

The House Energy and Commerce Committee cleared in May a bill that would reinstate FCC spectrum auction authority for three years. That bill would allow for, but not mandate, an auction of the lower 3 GHz band.The bill stalled after clearing the Energy and Commerce Committee.

In an Expert Opinion piece in Broadband Breakfast, Joel Thayer argued that unnecessary intergovernmental infighting is now jeopardizing the nation’s 5G rollout.

“What’s more, the advent of AI will require even more data transmissions over our 5G networks and will inevitably strain them. Without a refilled spectrum pipeline, data-driven applications—like AI—will become a pipedream for the U.S.,” he wrote.

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