Cable broadband providers told the Federal Communications Commission this week that preventing digital discrimination in the provision of broadband services is a laudable goal but that they already offer equal access to high-speed service, and the proof is in the data.
In December 2022, the FCC began seeking input on how it should implement the digital discrimination provisions in the Biden administration's Infrastructure Act. The statute ties its billions of additional dollars in broadband buildout subsidy money to equal access to deployment.
In seeking that comment, the FCC asked how it could “prevent internet providers from engaging in digital discrimination,” which, at least linguistically, suggests there is a problem that needs fixing.
NCTA-the Internet & Television Association, in comments filed this week, said that both FCC and census data make it clear that “cable broadband networks are available across providers’ service areas to homes and businesses, regardless of income level, race, ethnicity, color, religion or national origin.”
The association cited FCC and U.S. Census data showing 99.8% of homes with median incomes above $100,000 have access to cable broadband at 1 Gigabit per second, but so do virtually the same percentage (98.2%) for those with incomes below $35,000 per year.
Data also shows that in areas where 80% or more of residents are African-American, 99.5% have access to 1 gig service, NCTA said. That’s a tick higher than the 98.1% of homes in ares where less than 5% of the residents have 1 gig available, the group said.
The NCTA signaled the problem would be if the FCC were to overregulate in an effort to achieve broadband adoption or affordability goals addressed elsewhere in the Infrastructure Act that aren’t germane to the broadband deployment portion that should be the inquiry’s focus.
The things NCTA wants the FCC to steer clear of include conflating adoption with deployment. NCTA said the FCC’s definition of availability should rely only on studies that “distinguish availability from adoption and do not rely on third-party speed tests.”
The Biden administration has signaled it thinks those quality and adoption goals — and competition benchmarks — should all be factored into the deployment equation.
If the FCC does find evidence of discriminatory deployment, it should base any action on a proof of intent to discriminate rather than inadvertent discrimination. NCTA argues that distinction can be shown via evidence of “a pattern of discriminatory intent, the sequence of events leading to the decision, departures from normal procedures and a consistent pattern of actions imposing much greater harm on the protected class.”
The FCC has proposed sanctioning unintentional as well as intentional discrimination, which would obviously raise the stakes for internet-service providers on just how the FCC defines discrimination.
Intent or not, though, NCTA said the FCC should not give complainants the power to file class-action suits or any private right of action.
The FCC notice NCTA was commenting on proposes adding digital discrimination to the agency’s informal consumer complaint process, coming up with model policies and best practices for states and localities and next steps and potential rules for combating discrimination in broadband access.
One policy it thinks it would be best for the FCC to adopt is expressly preempting laws in those states and localities that differ from the agency’s digital discrimination rules. ■
