Biden Administration Urges FCC to Adopt Strong Digital Discrimination Rules

Disparate impacts, rather than discriminatory intent, should be the commission’s focus, the agency said.

Biden Administration Urges FCC to Adopt Strong Digital Discrimination Rules
Screenshot of Alan Davidson, assistant secretary of commerce at the NTIA.

WASHINGTON, October 6, 2023 – The National Telecommunications and Information Administration urged the Federal Communications Commission to adopt strong digital discrimination rules.

The FCC is required by the Infrastructure, Investment and Jobs Act to adopt rules promoting equal broadband service for a given provider’s subscribers. That includes preventing differences in access based on race, income level, religion, and other categories – known as digital discrimination.

In a meeting on behalf of the Biden administration, the NTIA urged the commission to adopt a “disparate impact” standard for determining digital discrimination, meaning broadband providers’ business practices could be considered discriminatory even if they are not intentionally withholding internet access from a protected group.

“Only a definition of digital discrimination that includes policies and practices that have disparate impacts can adequately protect less-connected communities,” the NTIA wrote in an ex parte letter filed on Friday.

Industry groups have argued against this, saying broadband providers often deploy infrastructure on the basis of cost and logistical constraints. It would be unreasonable, their trade groups argue, to require providers to divert resources to serving unprofitable and expensive-to-reach parts of their service areas with high-end broadband.

The NTIA noted that the Infrastructure Act requires the FCC to consider these constraints in its rulemaking process. But the agency urged the commission not to take cost-related arguments at face value.

The agency pointed to an April filing from the non-profit Public Knowledge and other broadband advocates which proposed guidelines for evaluating economic feasibility claims from providers. Those proposals should serve as a guide for the FCC, the agency wrote.

Public Knowledge urged the commission to consider whether subsidies like the Affordable Connectivity Program, which provides a $30 monthly internet discount for low-income households, would make an area feasible to serve.

The group also proposed evaluating returns at a service area level rather than a neighborhood level, citing a report from the Markup that found poor neighborhoods are often offered lower speeds than high-income ones. The profits from those high-income areas, Public Knowledge argued, should offset the cost of serving higher-cost communities.

“Put another way, if you want to serve the Washington, D.C. market, that includes deploying equal access in Anacostia as well as in Georgetown,” the filing read.

The commission is required to adopt digital discrimination rules by November 15.


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