The FCC's recently closed public comment period on the state of "digital discrimination" in the US highlights a rift between advocacy organizations and Internet service providers (ISPs), with the latter group in defensive mode over a practice some ISPs say doesn't exist.

The comments also suggest that policies to address the issue of digital discrimination (also referred to by advocacy groups as "digital redlining") could be hard to come by and fought over in court.

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Tasked by Section 60506 of the Infrastructure Investments and Jobs Act (IIJA) with tackling digital discrimination, the FCC issued a public notice in March requesting comment on the following:

The FCC is required to complete its review and offer policy recommendations and rules changes no later than two years after the law's enactment – or by November 2023.

Related:Podcast – The Divide: NDIA's Angela Siefer on digital redlining

But public comments show there's little agreement between ISPs and consumer advocates on the issue, with both sides hinging their arguments on legal language.

'Intentional discrimination'

In addition to helping solve digital discrimination, the FCC is also charged with defining it. But that itself is a point of contention.

As AT&T argues in its most recent filing on the topic, according to "longstanding case law," Section 60506 of the infrastructure legislation "targets only intentional discrimination." It goes on to say that had Congress intended otherwise, it would have used "different words."

ACA Connects (ACAC), a trade group representing small and medium service providers, offered a similar argument, saying the FCC should "limit its definition of 'digital discrimination' to intentional discrimination."

It also takes issue with comparisons made by public interest groups to how the US has addressed historical discrimination in other markets.

"Relying largely on ill-fitting analogies to anti-discrimination laws that address domains with a history of discrimination (e.g., housing and credit) and the theoretical prospect of differences in broadband availability, several commenters demand that the Commission subject BSPs to the enormous burdens and uncertainty of a disparate impact standard," writes ACAC. "Some go as far as to suggest that providers bear the responsibility to remediate the consequences of structural racism. Their approach is not only outside the scope of the statute, it is unworkable."

Taking a different position, the National Digital Inclusion Alliance (NDIA) – an organization that has advocated for the federal government to address what it calls "digital redlining" – argues in its latest filing that the language of the statute is not limited to "intentional" discrimination.

"On the contrary—the language and goals set forth in Section 60506 direct the Commission to prohibit practices that produce disparate outcomes," writes NDIA.

"Congress states that 'the Commission shall 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.' That is, in order to advance equal access, the Commission must adopt rules to prohibit digital discrimination. Equal access is an outcome," it adds.

Another filing on behalf of public interest advocates including NDIA as well as Communications Workers of America, Electronic Frontier Foundation, Next Century Cities, Public Knowledge and several others, argues for applying a "discriminatory impact standard" to address digital discrimination.

"The Commission must use a discriminatory impact standard, focusing on whether low-income and marginalized communities are unable to connect to broadband in a manner that is comparable to their peers – or at all," the group says.

'Safe harbor'

An additional area of disagreement between some service providers and consumer advocates is whether the FCC should make exceptions for ISPs that have achieved widespread deployments in their coverage areas.

As T-Mobile writes: "when a provider's deployments are so widespread as to cover 90% or more of their service areas – as T-Mobile’s deployments are – it is highly likely that digital discrimination is not present." Therefore, it argues, the Commission should include rules for a "safe-harbor or presumption of non-discrimination for providers that have deployed broadband service to 90% of its service areas."

NDIA disagrees here as well. "The scope of digital discrimination extends beyond bare deployment; digital discrimination also involves disparate service quality, selective network maintenance/upgrading, and other non-deployment-related factors," it writes.

Rules and regulations

Generally speaking, while advocacy groups see a need for new rules and regulations to address digital redlining, ISPs are arguing that the tools already exist via programs like Lifeline and the Affordable Connectivity Program.

According to T-Mobile, with the existence of those programs, "the Commission does not need to adopt new prescriptive rules to implement Section 60506 of the IIJA." Rather, the company encourages the FCC "to focus instead on promoting new deployments, more network investment, and greater adoption."

NDIA says that isn't enough and doesn't address the core issue, as the FCC's charge is to "curb the disparate and unequal outcomes in deployment, investment, and adoption based on the listed characteristics."

Further, while affordability programs are "extremely valuable," it adds that "Congress plainly directs the Commission to adopt new prescriptive rules that facilitate equal access and prohibit digital discrimination."

But ISPs say the FCC has little authority to impose such rules, and new regulations would be challenged in court.

"Under modern Supreme Court precedent, an agency lacks authority 'to exercise powers of vast economic and political significance' unless Congress 'speak[s] clearly' and 'plainly' in granting that authority," writes AT&T.

"Here, Congress cannot plausibly be thought to have subjected broadband providers to price regulation or involuntary buildout obligations for the first time by tacking on this one-page provision to the back of a 68-page broadband section of an even longer infrastructure statute while neglecting even to incorporate it into the Communications Act," the company adds.