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FCBA Panelists Disagree on Breadth of Digital Discrimination Order

Trade groups critical of the FCC’s digital discrimination order disagreed Wednesday with members of its Communications Equity and Diversity Council about the order’s breadth. The order “covers every aspect” of an ISP’s service and could lead to companies slowing the rollout of service in some communities to avoid the appearance of discrimination, said Diana Eisner, USTelecom vice president-policy and advocacy, at an FCBA CLE. “Given the scope of the problem,” it was appropriate for the FCC to create a rule that could tackle multiple forms of discrimination, said Leo Fitzpatrick, policy analyst at The Utility Reform Network and a former CEDC member.

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Because the order uses a disparate impact standard that doesn’t require companies to intend discrimination, entities have to be concerned about broad interpretation of the rules, Eisner said. For instance, the order could be used to bar companies from advertising at a stadium during the Super Bowl because the event is expensive to attend, she said. The order's broad scope is especially challenging for smaller companies with limited resources, said ACA Connects Chief Regulatory Counsel Brian Hurley.

The order’s disparate impact standard runs counter to congressional intent and will be extremely difficult for the agency to administer, said Eisner. The order could also lead the agency to regulate rates “ex post facto” if a company’s prices are found to be discriminatory, even though Congress has expressly said the agency can’t dictate prices, Eisner said. ISPs offering disparate prices to geographically close communities with different demographics is a known problem, Fitzpatrick said.

"Sharpen your pencils,” FCC Wireline Bureau Associate Chief Lisa Wilson Edwards advised companies that the order affects. Entities should begin reexamining all their policies and practices to see if they have discriminatory effects, Edwards said. The order gives companies six months after it takes effect before the agency can launch investigations, she said. It takes effect Friday, which gives companies until Sept. 22 to prepare, she added.

The agency is creating a process that allows companies to seek advisory opinions from the FCC’s Enforcement Bureau about their policies. In addition, it is adding a special adviser for equal broadband access to provide technical assistance to entities, Edwards said.

The FCC will benefit from gathering more information about digital discrimination as it enforces the order, said CEDC Vice Chair Nicol Turner Lee, Brookings Institution senior fellow-governance studies. Turner Lee recently wrote a book about the digital divide, and her research showed numerous factors, not just ISP policies, can cause digital discrimination. Entities making decisions about what areas receive broadband can be local governments and other authorities, Turner-Lee said.

Putting the burden of digital discrimination solely on ISPs could ignore prejudiced public policies or systemic issues such as housing discrimination, she said. The FCC should create an Office of Civil Rights to oversee the complaint process for digital discrimination, Turner Lee said.