Digital Discrimination Draft Rules Covering Conduct, Effects Circulated
Draft digital discrimination rules to be voted on at the FCC's November meeting address both intentionally discriminatory conduct and conduct that produces discriminatory effects, FCC Chairwoman Jessica Rosenworcel said Tuesday at the annual United Church of Christ (UCC) Parker Lecture in Washington. The agency has seen disagreements among interested parties about using discriminatory intent vs. discriminatory impact when defining digital discrimination (see 2302220045). Rosenworcel said Tuesday the draft rules create a specific path for lodging digital discrimination complaints. She said the item also seeks comment on reporting requirements regarding new deployments, upgrades and maintenance projects, with the aim being the removal of what could lead to impediments to equal broadband access.
The circulated rules come as the agency faces a Nov. 15 deadline under Section 60506 of the Infrastructure Investment and Jobs Act for implementing digital discrimination rules. The FCC said the rules, if adopted, would let it directly address ISPs' practices and policies "if they differentially impact consumers’ access to broadband internet access service or are intended to do so" and also ensure that communities "see equitable broadband deployment, network upgrades, and maintenance."
The FCC's definition of digital discrimination has to cover both disparate treatment and disparate impact, as focusing just on discriminatory intent would fall short of the FCC's legal obligation to help ensure equal access to broadband, Rosenworcel said. Including disparate impact in the definition is consistent with years of civil rights law, and other federal agencies have interpreted anti-discrimination statutes they administer as covering both discriminatory impacts and intent, she said.
The draft rules accept technical and economic feasibility as valid reasons why broadband providers might not offer equal network access, Rosenworcel said. She said the agency will review such defenses case by case. She said the draft rules indicate that differential impact by itself is not enough to establish liability, and complaints also will have to prove a relationship between the differential impacts and the providers' policies and practices.
Rosenworcel said the discrimination complaints process aims "at finding solutions that work for all parties" but then escalates to Enforcement Bureau action.
Arguing against a disparate impact standard, Digital Liberty in docket 22-69 on Tuesday said such a standard could amount to rate regulation. It said price fixing leads to shortages, and rate regulation would undermine the universal access goals of the broadband equity, access and employment program. ALLvanza said intentional discrimination claims should require some form of substantiation. An informal dispute resolution system to resolve some consumer complaints would provide faster resolutions than a formal process, Verizon told aides to Rosenworcel and to Commissioner Anna Gomez.
At the UCC event, Sen. Tammy Duckworth, D-Ill., discussed the Martha Wright-Reed Just and Reasonable Communications Act (S-1541) signed into law in January (see 2301060030). "A vast majority of incarcerated persons will eventually be released," said Duckworth, who was lead sponsor of the legislation. "And we all have a stake in making sure that our nation better prepares them to navigate the daunting challenge of reentry."