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Disparate Impact?

Industry, Advocates Disagree on FCC Authority in Curbing Digital Discrimination

Industry groups and consumer advocacy organizations continued to disagree on the amount of digital discrimination in the broadband marketplace, in reply comments posted Friday in docket 22-69 (see 2205170071). Central to the disagreement was whether the FCC has the authority to consider a disparate impact standard rather than discriminatory intent in final rules.

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Equal access “should focus on incentivizing broadband investment targeted to this goal and cannot include deployment build-out mandates,” said Lumen: Rules aimed at preventing digital discrimination should "expressly target only intentional discrimination and not mere disparate impact." Broadband deployment "is an expensive endeavor" and "cost-prohibitive to serve without government subsidies" in some areas, said Verizon: Establishing “intent-based standards are effectively used in other contexts to provide relief to aggrieved parties and would also provide an effective mechanism to address unlawful discrimination.” The law and Supreme Court precedent "make clear that a disparate-impact analysis is not permitted," said USTelecom: Intent is "a necessary component" to determining digital discrimination.

Discriminatory intent "often operates through unspoken and unwritten methods," said the National Digital Inclusion Alliance, and the FCC's rules should include "practices that produce disparate effect, even if discriminatory intent is not present." Limiting digital discrimination to when there's intent "fails to reflect how discrimination occurs in practice," said the Multicultural Media, Telecom and Internet Council. ISPs are "aware of these existing and historical disparities but have often failed to address them in their policies and practices," MMTC said.

It's "likely that Congress intended for the commission to identify a wide range of practices and policies that lead to disparate treatment of people," said Common Cause, Communications Workers of America, and United Church of Christ Media Justice Ministry, in joint comments, which the Utility Reform Network echoed. The FCC could establish an "Office of Civil Rights" to "allow for the consolidation of existing civil rights expertise and resources" to enforce digital discrimination rules, the groups said.

Don't adopt standards or definitions that "do not reflect the economic and technical realities of broadband markets," said ACA Connects. The factors should "guide the commission at all stages of this proceeding" rather than be "relegated to case-by-case waivers or a potential defense against claims of digital discrimination," the group said. "An intent-based prohibition would serve as a bulwark against prejudice that could undermine the success of the [Infrastructure Investment and Jobs Act's] resource-based programs" because "[c]onnecting Americans takes place over time and entails many and varied challenges," said CTIA.

Adoption and affordability "exceed the scope of the digital discrimination section" of the infrastructure law, said NCTA. The FCC shouldn't adopt a policy in which "differences in adoption levels are evidence of discrimination," the group said, saying a disparate impact standard isn't "practical or effective for the commission to administer." It "would violate not only the plain language of the statute, but also the 'major questions' doctrine," said AT&T: “Had Congress meant to reach disparate impact through a ‘nondiscrimination’ provision, it would have used different words associated with that concept.”

Digital redlining "continues to worsen today," with fiber deployment being "lowest in low-income neighborhoods of color" in high-density metropolitan areas, said the cities of Chicago and Boston, Maryland's Howard and Montgomery counties, and the Texas Coalition of Cities for Utility Issues, in joint comments. The FCC should adopt a disparate impact standard for discrimination and list affordability as a metric for determining equal access, the local governments said, which Public Knowledge echoed. There's "no serious dispute about the fact that affordability is a key reason many people are unable to access broadband," said NATOA, saying local governments have a "history of effectively helping improve broadband deployment and address potential redlining."

The FCC should "make clear that it does not and will not preempt state authority to pursue enforcement against digital discrimination," said the California Public Utilities Commission. States should "be given the option and tools to partner with the FCC and pursue investigations and involvement," said the Massachusetts Department of Telecommunications and Cable.