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

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.