Industry groups to FCC: Tread lightly on digital discrimination rules

In a new round of comments regarding the FCC's notice of proposed rulemaking on digital discrimination, industry groups including USTelecom are urging the Commission against imposing "burdensome" new regulations on service providers, and to specifically safeguard against "intentional" discrimination.

"The Commission's primary task here is to implement Congress's direction to 'adopt final rules to facilitate equal access to broadband internet access service.' 'Facilitate' means to take supportive action," said USTelecom in a recent filing with the FCC.

Rather than new regulations, the trade association urged the FCC to use its existing authority and programs to help ensure equal access to broadband.

"The Commission has many options to facilitate equal access to broadband. These include streamlining regulatory approvals, encouraging government-industry collaboration, and collaborating with the National Telecommunications and Information Administration ('NTIA') to ensure that the funds Congress appropriated in the Infrastructure Act achieve their intended purpose of closing the digital divide," said USTelecom. "The Commission should reject entreaties to 'facilitate equal access' by adopting sweeping new regulation of the broadband marketplace as such far-reaching proposals are inconsistent with the overall pro-investment structure of the Infrastructure Act."

This latest round of comments comes in response to a request for further input issued by the FCC at the end of last year. It also marks roughly a year since the FCC first opened a public comment process on the digital discrimination matter. Throughout, industry groups have opposed consumer advocates on how heavy-handed the FCC should be in setting rules to ban digital discrimination, and how much authority Congress gave the FCC to regulate the matter.

(Source: Ivan Kmit/Alamy Stock Photo)
(Source: Ivan Kmit/Alamy Stock Photo)

"The input we have received thus far from stakeholders is an awfully good start. But to get this right, we still need more input and ideas because we can't reach our goal of connecting everyone, everywhere unless we eliminate digital discrimination," said FCC Chairwoman Jessica Rosenworcel in a statement from late December. In accordance with the Infrastructure Investment and Jobs Act, the FCC is required to adopt new digital discrimination rules later this year.

Among the issues the FCC opened to further comment are: "How to define "digital discrimination of access" and "Rules to adopt to prevent digital discrimination of access."

In another new filing, NTCA–The Rural Broadband Association, which represents roughly 850 small and medium rural Internet service providers (ISPs), echoed some of USTelecom's concerns about regulatory overreach and pointed to construction and equipment costs plus affordability as the main barriers to broadband deployment and adoption.

"Broadband is a capital-intensive industry. Decisions regarding technical and economic feasibility in rural areas may result in disparate deployments but do not indicate discriminatory intent aimed at disadvantaging protected classes of people on the basis of their inclusion in those classes," wrote NTCA, adding that "the prevailing factor in broadband adoption is affordability, rather than apparent or perceptible discriminatory action."

NTCA further suggested that the FCC could help alleviate digital discrimination outcomes through reforms related to pole access, permitting and rights-of-way issues. For example, environmental and historic preservation assessments "can take up to a year to complete," according to NTCA.

"These are examples of instances in which a broadband provider's ability to deploy services in a technically and economically feasible manner may be thwarted by conditions and parties beyond the control of the ISP," said NTCA. "In these instances, the disparate impacts in reaching subscribers is not rooted in discriminatory intent by the provider but rather are the result of conditions that are wholly unrelated to the protected class of subscribers and which inform legitimate businesses decisions."

'Backdoor to rate regulation'

Both USTelecom and NTCA's comments speak to ongoing concern from industry groups that the FCC could impose rules that further regulate broadband investment and rates.

Indeed, NTCA said some of the language in the FCC's notice of proposed rulemaking treads "alarming ground."

"Quoting one set of comments, the Commission asks whether it should 'establish a bright line standard where a profit margin reduction between neighboring areas ... does not constitute [economic] infeasibility.' And the Commission reconstitutes a question from the Notice of Inquiry, asking, 'If underlying cost or geographic hurdles exist in conjunction with demand in an area that makes it unprofitable, how should the Commission address this situation?'

"Both of these questions raise a concern as to whether government fiat will determine the level of returns that should justify investment by private firms," said NTCA.

In another filing, ACA Connects, which represents roughly 500 broadband and cable providers, similarly argued that Congress did not grant the FCC "with a roving mandate to regulate broadband network deployment decisions, service offerings, or prices."

Further, added USTelecom: "This proceeding also cannot be used as a backdoor to rate regulation."

The group continued: "It simply is not plausible that Congress would have silently overturned the status quo on broadband rate regulation in a short provision contained in a lengthy division of the Infrastructure Act that primarily addresses broadband funding. ... And such intervention would seriously jeopardize the country's long-standing, balanced regulatory approach to broadband."

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Nicole Ferraro, editor, Light Reading, and host of "​​The Divide" podcast.

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