The Federal Communications Commission (FCC) recently announced a notice of proposed rulemaking on Preventing Digital Discrimination.
The National League of Cities (NLC) has identified several key areas of concern with the FCC’s proposal and provides detailed comments for each, listed below. AWC asks that cities review NLC’s comments and the proposed rulemaking, and that you send us any additional feedback you have by Dec. 27.
#12. The FCC has requested feedback on whether the definition of "digital discrimination of access" should depend on whether the provider intended to discriminate based on a protected characteristic. NLC suggests the first definition
not contingent on intent: (1) "policies or practices, not justified by genuine issues of technical or economic feasibility, that differentially impact consumers' access to broadband internet access service based on their income level, race, ethnicity,
color, religion, or national origin" as digital discrimination sometimes occurs regardless of intent to discriminate against a protected characteristic and those cases should still be prevented and reflected in the recommendations of the rulemaking.
Additionally, the definition of protected characteristics could benefit from a broadening of protected characteristics such as age, ability and housing status. Refer to #42 for additional possibilities to support in the inclusion of a broadened definition.
#14. The FCC has also requested feedback on whether to adopt the definition of "digital discrimination" based on disparate impact (discriminatory effect), disparate treatment (discriminatory intent) or both. NLC suggests disparate impact as the determination
of "digital discrimination" and the comments put forth by supporters of this determination. These comments support using disparate impact as the only way to create an effective prohibition that captures discrimination as it happens in the real world.
Additionally, NLC supports the comments that state facially neutral or even unintentional practices could still produce discriminatory effects and "the devastating consequences are much the same" as intentional discrimination.
#27. The FCC is requesting feedback on whether to consider upload/download speeds that providers use to provide broadband service. NLC suggests the consideration of upload/download speeds in broadband internet provision as these metrics can demonstrate
discrimination in broadband provision.
#30. The FCC is requesting comment on whether "digital discrimination of access" should include policies or practices by a broader range of entities than broadband providers. NLC suggests that the best practices set forth in the rulemaking should
also apply to owners and landlords of multiple tenant environments due to their role in facilitating equal access between units to broadband services.
#84. The FCC is also requesting feedback on actions to take to promote infrastructure deployment. This section references how commentators might identify state and local laws that impact infrastructure deployment and municipal broadband as areas to
further the Commission action to address "digital discrimination." NLC supports comments that identify state preemption as a highly impactful barrier on the buildout of locally owned broadband infrastructure that could otherwise increase access
to services to unserved or underserved communities. Other comments to consider are in support of municipal broadband as an essential option for education, healthcare, market competition, consumer choice, economic development, and universal, affordable
Internet access nationwide. Additionally, publicly owned broadband infrastructure, including open-access and conduit networks, has served an important role in increasing broadband market competition among private providers by reducing the cost
of entry to those communities, particularly for smaller broadband providers.