Wednesday, March 23, 2022
The Infrastructure Investment and Jobs Act is about more than money. It’s about broadband affordability. It’s about digital equity.
As Congress found in the Infrastructure Investment and Jobs Act, access to affordable, reliable, high-speed broadband is essential to full participation in modern life in the United States. And digital equity is achieved when individuals and communities have the information technology capacity that is needed for full participation in society and the economy.
On March 17, 2022, the Federal Communications Commission launched a proceeding aimed at understanding—and eventually eliminating—the harms experienced by historically excluded and marginalized communities. By November 2023, the FCC is tasked with adopting meaningful policy reforms to extend digital opportunity to everyone. This proceeding is an early step in that process. The FCC seeks comment on the meaning of relevant terms and concepts and how they should be applied in ensuring equal access to broadband, preventing digital discrimination, and identifying steps the FCC should take to eliminate digital discrimination. Roll up your sleeves; it’s time to get to work.
Background: There’s a problem here
In 2016, our friends at Free Press published Digital Denied: The Impact of Systemic Racial Discrimination on Home-Internet Adoption. That research found that differences in income explain some of the digital divide, but not all of it. People in communities of color continue to lag behind in internet adoption, even after one accounts for income differences. At the time, for example, among those with annual family incomes below $20,000, 58 percent of low-income Whites had home-internet access, versus just 51 percent of Hispanics and 50 percent of Black people in the same income bracket. Free Press found that this adoption gap existed between people of these races and ethnicities in all income strata, but the gap was largest among the poorest people in America.
For many people of color, the level of home-internet adoption was far below the expected value. To determine the size of this digital divide, Free Press compared actual home-internet adoption by people of different races and ethnicities to the level of adoption one would expect based solely on their income, or based on their income combined with other demographic factors (e.g., their age, education, location in a metropolitan area or not, homeownership levels, household size, and presence of household members who use the internet at work and/or school). Free Press found that after controlling for income, education, age, and other factors, the marginal impact of race/ethnicity on household-internet adoption, relative to Whites, was -5.6 percentage points for Hispanics, -8 percentage points for Blacks, and -5.5 percentage points for American Indian/Alaska Natives.
In 2017, research conducted by Connect Your Community and the National Digital Inclusion Alliance (NDIA) found that AT&T systematically discriminated against lower-income Cleveland neighborhoods in its deployment of home internet and video technologies. NDIA repeated the analysis of FCC data for Dayton, Ohio, and found that AT&T failed to upgrade its network in low-income neighborhoods, including most of Dayton, while deploying a high-speed, fiber-based network in wealthier suburban areas. A similar pattern was found in Detroit and Toledo, and then in Dallas, Texas, in 2019.
Enter the Infrastructure Investment and Jobs Act
One title of the Infrastructure Investment and Jobs Act is devoted to broadband affordability. A section of that title includes this statement of policy:
It is the policy of the United States that, insofar as technically and economically feasible—
- subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service;
- the term ‘‘equal access’’, for purposes of this section, means the equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions; and
- the Federal Communications Commission should take steps to ensure that all people of the United States benefit from equal access to broadband internet access service.
The law then instructs the FCC to adopt rules to facilitate equal access to broadband internet access service, taking into account the issues of technical and economic feasibility presented by that objective, including—
- preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin; and
- identifying necessary steps for the FCC to take to eliminate discrimination.
The law also sets out three related tasks for the FCC:
- working with the U.S. Attorney General to ensure that Federal policies promote equal access to robust broadband internet access service by prohibiting deployment discrimination based on the income level of an area, the predominant race or ethnicity composition of an area, or other factors the FCC finds relevant;
- developing model policies and best practices that can be adopted by states and localities to ensure that broadband internet access service providers do not engage in digital discrimination; and
- revising its public complaint process to accept complaints from consumers or other members of the public that relate to digital discrimination.
The FCC’s Proceeding on Prevention and Elimination of Digital Discrimination
The FCC’s new proceeding is a Notice of Inquiry—meaning that it will not lead directly to rules, but will inform the next steps in the FCC’s process including, one can assume, a Notice of Proposed Rulemaking down the line. Specifically, the FCC is seeking public comment on the meaning of the terms and concepts included in the relevant provisions of the Infrastructure Investment and Jobs Act and how they should be applied in the context of ensuring equal access to broadband, preventing digital discrimination, and identifying steps the FCC should take to eliminate digital discrimination. The FCC also seeks comment on the framework of the rules it should adopt to achieve the goal of ensuring all people in the United States have equal access to broadband regardless of “income level, race, ethnicity, color, religion, or national origin.”
A quick look at the questions the FCC is asking about key terms and concepts follows.
Equal Opportunity to Subscribe
How should the FCC interpret the phrase “equal opportunity to subscribe”? Does this phrase mean that subscribers should be able to subscribe to comparable services at comparable terms and conditions? An “eligible telecommunications carrier,” as defined by the FCC, is a common carrier designated by a state commission—or in some instances by the FCC itself—that is eligible to receive universal service support and must provide service throughout a designated area. Eligible telecommunications carriers must provide the services the FCC designates for universal service support throughout their entire designated service areas and advertise the availability of such services using media of general distribution. In interpreting the phrase “equal opportunity to subscribe,” should the FCC look to its own precedent regarding these obligations on eligible telecommunications carriers? If so, how? Should the FCC understand the phrase “equal opportunity to subscribe” to be broader or narrower than an eligible telecommunications carrier’s existing statutory service obligation?
The FCC seeks comment on the two notions of comparability in the definition of equal access.
How should the FCC understand the phrase “an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics”? What “other quality of service metrics” should the FCC consider? What does it mean for speeds, capacities, latency, or other metrics to be “comparable”?
How should the FCC’s concept of comparable quality of service account for various technical practicalities? For example, how should the FCC take into account the nature of network upgrade cycles, which may occur over a period of time? How should it account for network outages or periods of network degradation due to disruptions in service or high utilization? Should the FCC understand comparable quality of service to vary during times of network degradation? How should the FCC interpret comparability across different services, including evaluating fixed broadband versus mobile broadband services? Should performance metrics be the same for fixed and mobile broadband?
The FCC also seeks comment on what “comparable terms and conditions” means. Does this phrase refer to the price and duration of service contracts available to subscribers? Are there other characteristics of a broadband contract that would also be included under this category? Would this include customer support response time, data caps, promotional offerings, consumer premises equipment rental agreements, availability of devices that connect to the network, and/or the ways in which subscriber data is used by broadband providers? What other “terms and conditions” should the FCC consider?
The relevant subsection of the Infrastructure Investment and Jobs Act does not list affordability as a factor for assessing a provider’s equal access obligation. Nevertheless, the FCC seeks comment on whether it is required or permitted to take into account the affordability of terms and conditions. For example, while a service provider’s terms and
conditions may be identical across an area, rates might nevertheless be prohibitively expensive for some in that area. Does equal access require that rates be not only comparable but also affordable?
Are there data sources the FCC can leverage to compare quality of service metrics as well as other terms and conditions within a given area? The FCC may collect additional broadband information as a result of two rulemakings stemming from the Infrastructure Investment and Jobs Act. Information from these collections may include standardized pricing and broadband plan information, as well as an annual collection of price and subscription data from providers participating in the Affordable Connectivity Program. Could those data collections be useful in the context of identifying, preventing, or eliminating digital discrimination and, if so, how? Are there ways the FCC could approach those data collections that would improve their utility in this proceeding and/or ongoing efforts to prevent and eliminate digital discrimination?
How should the FCC construe the phrase “in a given area” in the definition of equal access? Does the different word choice signify that this refers to something other than “the
service area of a provider of such service” used elsewhere in this section of the new law? If so, how should the FCC construe the “given area” in which the “equal opportunity to subscribe” is called for? What unit of geography would provide appropriate granularity and be easy to match with other data?
Facilitating Equal Access
The FCC seeks comment on the affirmative obligation to adopt rules to “facilitate equal access.” What does the word “facilitate” mean in this context? Does this word give the FCC broad discretion to adopt rules that would require, encourage, or otherwise incentivize equal access to broadband in certain geographic areas? Or is this obligation narrower and, if so, how? What rule or rules should the FCC adopt to fulfill this direction?
Related provisions of the law require the FCC to “adopt final rules to facilitate equal access to broadband internet access service . . . including  preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin.” Does the word “including” signify that the overarching direction to “facilitate equal access” is broader than the specific goal of enacting rules aimed to “prevent digital discrimination”? If so, what is captured by this broader concept of “facilitat[ing] equal access”? What other types of rules should the FCC consider that might achieve the objective of facilitating equal access to broadband? How should the statement of United States policy noted above bear on the inquiry?
Preventing and Eliminating Digital Discrimination
The FCC seeks comment on two particular paragraphs in the law.(1) The first establishes that one aspect of “facilitat[ing] equal access” is “preventing digital discrimination of access based on income level, race, ethnicity, color, religion or national origin.” The second establishes that another aspect is “identifying necessary steps for the Commission to take to eliminate discrimination described” in the first paragraph. The FCC seeks comment on the relationship between these two paragraphs. How should it construe each paragraph’s use of a different verb: “prevent digital discrimination” and “eliminate discrimination”? Do these create distinct obligations and provide the FCC with distinct authority, or should the FCC read them to refer to the same general requirement?
The FCC seeks comment on what “digital discrimination” means.
Should the FCC understand digital discrimination to be a lack of equal access to broadband based on one of the listed characteristics? Or is there a broader way to construe this language that is supported by the law?
The FCC seeks comment on how it should understand when digital discrimination is “based on” one of the listed characteristics. Does the term “based on” require discriminatory intent? If so, how would the FCC determine the presence or absence of discriminatory intent? Would such an approach be practicably difficult to enforce? Alternatively or in addition, should the FCC establish a “discriminatory effects” or disparate impact test?
The FCC also seeks comment on the listed characteristics of “income level, race, ethnicity, color, religion, or national origin.” The FCC recognizes that many of these terms have established meanings in other areas of law regarding discrimination. Does the commission need to further define these terms, or is their meaning self-evident, especially in light of existing precedent? Should the FCC’s efforts to prevent digital discrimination focus on preventing discrimination against particular individuals or communities in the aggregate that meet one of the listed characteristics?
Are there any other considerations the FCC should take into account when addressing digital discrimination based on a given listed characteristic? For example, does taking action to prevent discrimination based on income level require the FCC to consider additional or unique economic factors? If so, what type of analysis is appropriate for discrimination based on income level? For example, should the FCC consider a service provider’s potential return on investment in its decisions to offer service in certain
areas or allocate resources to making timely repairs? And how should the commission respond if it is presented with an argument that a given area’s income level makes it economically infeasible for a provider to offer equal access to broadband in that area? If underlying cost or geographic hurdles exist in conjunction with demand in an area that makes it unprofitable, how should the FCC address such a situation? How would the availability of federal and state funding for broadband deployment, including, but not limited to, Universal Service program funding, inform such arguments? When understanding what “income level” is for purposes of this analysis, should the FCC look to individual or household income (on an individualized basis), or median household income or poverty rate (on an aggregate basis), or some other concept or concepts?
Finally, should the FCC understand the listed characteristics to be exclusive? If the list of characteristics is not exclusive, how should the FCC determine that its rules addressing digital discrimination need to address discrimination based on any other characteristics, such as age, disability, geographic location (e.g., those living in rural areas), or level of English proficiency? And what additional characteristics should be addressed by FCC rules?
Can entities other than broadband providers engage in digital discrimination and, if so, what types of entities? For example, can owners of multiple-tenant environments digitally discriminate against those living and working in their buildings?
The FCC seeks comment on how to identify when and where digital discrimination is occurring. What data sources would enable the FCC to identify occurrences of digital discrimination based on the listed characteristics? For example, would data regarding demographic characteristics and broadband availability and adoption information be of particular importance to this analysis? If so, what sources should the FCC rely on for data regarding broadband information and demographic characteristics? Are there other categories of data that are fundamental to such analysis?
The FCC also seeks comment on what steps it should take to “prevent” and “eliminate” digital discrimination. Should the FCC take a broad perspective and address discrimination in multiple contexts? The Infrastructure Act uses the distinct phrase “deployment discrimination.” Does the use of a different, broader notion of “digital discrimination of access” elsewhere in the law signify that the FCC’s focus should not be limited to only issues of deployment?
Should the FCC adopt rules that broadly and directly prohibit digital discrimination? For example, should the FCC adopt a rule prohibiting certain entities from engaging in digital discrimination of access based on the listed characteristics? Would such an approach be too broad to be practicable, from both a compliance and enforcement perspective? Could the FCC address concerns about practicability by adopting clear and comprehensive definitions? Or should the FCC prohibit specific enumerated types of conduct? For example, should the FCC target credit checks of potential customers inasmuch as they capture one or more of the listed characteristics? Are there other specific and enumerated discriminatory practices the FCC could prohibit? Should any rules consist of, include, or emphasize a process and framework for individuals to bring claims of digital discrimination, rather than an exclusive focus on FCC enforcement?
Alternatively or in addition, should the FCC adopt rules to require, encourage, or otherwise incentivize certain entities to take affirmative steps to prevent digital discrimination? For example, should the FCC adopt a rule requiring certain entities to provide broadband at the same service quality, terms, and conditions throughout a given service area? How should such a rule account for technical and economic feasibility issues? Or would such an approach be too broad to be practicable, or cause undesirable negative effects?
An initial round of comments in this proceeding is due on May 16. Interested parties may then review the record and offer reply comments by June 30, 2022.
In June 2021, the FCC chartered the Communications Equity and Diversity Council to present recommendations on advancing equity in the provision of and access to
digital communication services and products for all people of the United States, without discrimination on the basis of race, color, religion, national origin, sex, or disability. A subgroup of the council, the Digital Empowerment and Inclusion Working Group, will take the lead on recommendations for addressing digital redlining and other barriers that impact equitable access to emerging technology in under-served and under-connected communities. Specifically, the working group will make recommendations to the full Communications Equity and Diversity Council on how to implement these provisions of the Infrastructure Investment and Jobs Act.
Additionally, FCC Chairwoman Jessica Rosenworcel created the cross-agency Task Force to Prevent Digital Discrimination. The task force will focus on creating rules and policies to combat digital discrimination and to promote equal access to broadband across the country, regardless of zip code, income level, ethnicity, race, religion, or national origin.
All these efforts will feed into the FCC’s next steps on digital discrimination, including a Notice of Proposed Rulemaking in the coming months.
- Paragraphs (b)(1) and (b)(2), if you’re scoring at home.