The Biden administration has told the FCC it should adopt a broad definition of digital discrimination, including in pricing, as it comes up with rules for handing out tens of billions of dollars in broadband buildout subsidies intended to achieve unversal deployment by decade's end.
In comments to the Federal Communications Commission on its drafting of rules to implement the Infrastructure Investment and Jobs Act, the National Telecommunications & Information Administration said that the FCC needs to come up with strong anti-digital discrimination rules for internet service providers that target both disparate treatment and disparate impact.
That means rules against both intentional and unintentional discriminiation.
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The FCC has asked whether it should define digital discrimination in terms of disparate treatment or impact, or both. ISPs have said that unintentional impacts should not be part of the definition. The NTIA, the administration’s chief telecommunications adviser, disagrees.
ISPs have argued that a definition that included impacts would divert needed investment in maintaining and improving their networks, but the NTIA said those claims should be “resisted.”
“While disparities in service could result from intentional discriminatory treatment based on the statute’s protected characteristics — which should certainly be prohibited — they may more commonly result from business decisions and institutional behaviors that were set in motion without any discriminatory intent," the NTIA wrote.
Citing the American Civil Liberties Union, the NTIA said “private-sector broadband providers’ otherwise legitimate profit-seeking behavior can result in disparate impacts.” A longstanding complaint against those profit-seeking behaviors is that they result in the redlining of less-profitable areas, often those with minority populations.
The bottom line, NTIA said, is that the goal of Congress is “identifying and remedying unequal access to broadband service, whatever its causes may be.”
Given that, the administration said, a host of things should be subject to digital discrimination rules, including quality of service — speed, latency, reliability — terms of service, promotional conditions and pricing.
“The Benton Institute for Broadband & Society shares NTIA’s belief that robust rules that can address the disparate impact of broadband deployment and service offerings will serve the needs of all Americans,” Benton Institute for Broadband & Society senior counselor Andrew Jay Schwartzman said. “Broad, nondiscriminatory access to the internet brings more customers to businesses, reduces the cost of government services for all taxpayers, and promotes stronger social bonds by enabling friends and family to remain in touch with loved ones.”
One FCC member not inclined to take the NTIA’s advice is Republican commissioner Brendan Carr.
“The Biden Administration’s broadband policies are failing,” Carr said. “The costs for building out Internet infrastructure in this country have skyrocketed thanks to inflationary policies under their watch. The FCC is sitting on spectrum that could connect millions of Americans to new, high-speed services. The Administration has needlessly blocked and delayed new broadband infrastructure builds. Fiber and cell site components are laying fallow in warehouses across the country due to the government’s failure to remove regulatory red tape. Permitting reform has gone nowhere. They are preparing to waste billions of taxpayer dollars by spending it without a national coordinating strategy. The list goes on.
“Now, the Biden administration has announced that it will blame the private sector for the outcomes of these failed government policies,” he added. “Instead, the administration should reverse course and unleash America’s private sector to build, connect and invest.”
