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Digital Inclusion

FCC Proposes Competing ‘Digital Discrimination’ Definitions, Advocates Clash

The FCC requested input on allowing economic and technical feasibility exceptions to the definition.

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Photo of Jenna Leventoff, senior policy counsel at Public Knowledge

WASHINGTON, December 21, 2022 – Triggering opposing reactions from advocacy groups, the Federal Communications Commission unanimously sought comment Wednesday on whether the statutory phrase “digital discrimination of access” should be defined to include practices that are non-discriminatory in intent but nonetheless produce disparate outcomes.

According to the order’s draft from Wednesday’s open meeting, the FCC proposed two potential definitions of the phrase, which is found in the Infrastructure, Investment and Jobs Act. The first definition includes practices that, absent technological or economic constraints, produce differential outcomes for individuals based a series of protected characteristics, including income, race, and religion. The second definition is similar but adds discriminatory intent as a necessary factor.

“We seek comment on whether this definitional approach should depend on whether, and for what reason(s), the provider intended to discriminate on the basis of a protected characteristic,” the draft says. The FCC also requested input on the prudence of allowing economic and technical feasibility exceptions.

Soon after the proposal’s adoption Wednesday, industry advocates clashed.

“In order to fulfil (sic) its congressional intent to end the disproportionate impact of the digital divide on low-income and marginalized communities, we hope that the Commission’s forthcoming rules will hold broadband providers liable for acts that lead to a discriminatory impact,” Jenna Leventoff, senior policy counsel at Public Knowledge.

“It is unnecessary, and likely to be counterproductive to achievement of that worthy objective, for the Commission to adopt a rule which allows discrimination to be proved based on a showing of unintentional ‘disparate impact’ rather than on a showing of intentional discrimination,” said Free State Foundation President Randolph May and Director of Policy Studies Seth Cooper. May and Cooper further argued that is incompatible with the text of the IIJA.

Following the issuance of the FCC’s notice of inquiry on digital discrimination, industry players including ACA Connects, AT&T, and the Wireless Internet Service Providers Association opposed the disparate-impact standard.

In May, following FCC Chairwoman Jessica Rosenworcel‘s commitment to fight digital discrimination as a “top priority for the FCC,” Berin Szoka, president of think tank TechFreedom, cautioned the agency against exceeding its statutory bounds.

“If Congress had wanted the FCC to implement a new civil right law for broadband, it would have legislated a clear prohibition on discrimination – the essential element in all civil rights laws,” Szoka said. “Instead, Congress wrote a law entirely about ‘facilitation.’”

Industry association the Wireless Internet Service Providers Association, in a letter to the commission earlier this month, argued that, “any finding of discrimination” should “be based on ‘the totality of the circumstances,’ not just the disparate impact or disparate treatment of a protected class.

Many, however, argue that digital discrimination remains a key roadblock to digital equity. Advocacy group Next Century Cities in November emphasized the need to identify discriminatory patterns and their effects on impacted communities.

The FCC also seeks comment on other anti-digital discrimination measures, including an update to the agency’s consumer complaint process and the adoption of best practices for state and local governments.

Digital Inclusion

Broadband Breakfast Interview With Michael Baker’s Teraira Snerling and Samantha Garfinkel

Digital Equity provisions are central to state broadband offices’ plans to implement the bipartisan infrastructure law.

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Digital Equity provisions are central to state broadband offices’ plans to implement the Broadband Equity, Access and Deployment grant program under the bipartisan infrastructure law.

In this interview with Broadband Breakfast Editor and Publisher Drew Clark, Michael Baker International Broadband Planning Consultants Teraira Snerling and Samantha Garfinkel go into detail about the role of Digital Equity Act plans in state broadband programs.

Michael Baker International, a leading provider of engineering and consulting services, including geospatial, design, planning, architectural, environmental, construction and program management, has been solving the world’s most complex challenges for over 80 years.

Its legacy of expertise, experience, innovation and integrity is proving essential in helping numerous federal, state and local navigate their broadband programs with the goal of solving the Digital Divide.

The broadband team at Michael Baker is filling a need that has existed since the internet became publicly available. Essentially, Internet Service Providers have historically made expansions to new areas based on profitability, not actual need. And pricing has been determined by market competition without real concern for those who cannot afford service.

In the video interview, Snerling and Garfinkel discuss how, with Michael Baker’s help, the federal government is encourage more equitable internet expansion through specific programs under the Infrastructure Investment and Jobs Act.

The company guides clients to incorporate all considerations, not just profitability, into the project: Compliance with new policies, societal impact metrics and sustainability plans are baked into the Michael Baker consultant solution so that, over time, these projects will have a tremendous positive impact.

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Digital Inclusion

Historically Underrepresented Communities Urged to Take Advantage of BEAD Planning

BEAD requirements a unique opportunity for underrepresented communities to be involved in broadband builds.

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Photo of Mara Reardon, NTIA’s deputy director of public engagement

WASHINGTON, January 25, 2023 – Underrepresented communities are being urged to take advantage of the opportunity brought by the billions in funding coming from the National Telecommunications and Information Administration by actively planning for the money being allocated by June 30.

The $42.5 billion Broadband Equity, Access and Deployment program is a unique opportunity for historically underrepresented communities to be heard in critical digital equity conversations, said experts at a United States Hispanic Chamber of Commerce event Tuesday.

“For once, they are being included in the implementation process,” said Mara Reardon, the NTIA’s deputy director of public engagement, adding this is a “unique opportunity.” It is essential that communities take advantage of this by approaching state broadband offices, drafting broadband expansion plans, and showing up in commenting processes, Reardon urged.

Furthermore, historically underrepresented communities can make themselves available as contractors by subscribing to state mailing lists, being aware of requests going out, and participating in the state bidding process, said Reardon.

The notice of funding outlines several requirements for inclusion of historically underrepresented groups in the planning process, Reardon reiterated. Specifically, it mandates that eligible entities include underrepresented stakeholders in the process of developing their required five-year plans. This type of requirement is unique to federal infrastructure grants, said Reardon.

Due to the nature of the grant requirements, states must take necessary affirmative steps to ensure diverse groups are used in contracting and planning, added Lynn Follansbee of telecom trade association USTelecom. This means that projects will be outsourced to various providers and suppliers and that the work will be broken into pieces to involve as many groups as possible, said Follansbee.

The NTIA is making an effort to ensure that all community members are heard in critical issues, even establishing the office of public engagement for that purpose. It also said it has awarded $304 million in planning grants for broadband infrastructure builds to all states and Washington D.C. by the end of 2022.

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Digital Inclusion

CES 2023: Congressional Oversight, Digital Equity Priorities for New Mexico Senator

Sen. Lujan once again voiced concern that the FCC’s national broadband map contains major inaccuracies.

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Photo of Sen. Ben Ray Lujan, D-N.M., in February 2018 by Keith Mellnick used with permission

LAS VEGAS, January 6, 2023 – Sen. Ben Ray Lujan on Friday endorsed “oversight at every level” of executive agencies’ broadband policies and decried service providers that perpetuate digital inequities.

Lujan appeared before an audience at the Consumer Electronics Show with Sen. Mark Warner, D-Va., and Sen. Jacky Rosen, D-Nev., to preview the tech-policy priorities of the 118th Congress.

Among Washington legislators, Senators had CES 2023 to themselves: Representatives from the House of Representatives were stuck in Washington participating on Friday in the 12th, 13th and 14th votes for House Speaker.

Congress allocated $65 billion to broadband projects in the Infrastructure Investment and Jobs Act of 2021, the bulk of which, housed in the $42.45 billion Broadband Equity, Access, and Deployment program, is yet to be disbursed. The IIJA funds are primarily for infrastructure, but billions are also available for digital equity and affordability projects.

Several federal legislators, including Sen. John Thune, R-S.D., have called for close supervision of Washington’s multitude of broadband-related programs. At CES on Friday, Warner argued that previous tranches of broadband funding have been poorly administered, and Lujan once again voiced concern that the Federal Communications Commission’s national broadband map, whose data will be used to allocate BEAD funds, contains major inaccuracies.

Affordable, high-speed broadband is now a necessity, stated Warner. Lujan argued that policy must crafted to ensure all communities have access to connectivity.

“The [Federal Communications Commission] is working on some of the digital equity definitions right now…. I don’t want to see definitions that create loopholes that people can hide behind to not connect communities,” the New Mexico senator said, emphasizing the importance of “the digital literacy to be able take advantage of what this new connection means, so that people can take advantage of what I saw today [at CES].”

At a Senate hearing in December, Lujan grilled executives from industry trade associations over allegations of digital discrimination.

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