NDIA was thrilled to see efforts against “digital discrimination” land in the Infrastructure Act last fall. Since then, the Federal Communications Commission has been working on the process of defining “digital discrimination.” The latest step in the process was submitting reply comments to the Notice of Inquiry, in which the FCC sought comment on implementing rules to prevent and eliminate digital discrimination.
NDIA submitted initial comments in response to the Notice of Inquiry—as did other public interest organizations and internet service providers (ISPs).
In our reply comments, NDIA responds to several arguments made in the initial comments of large ISPs including AT&T, Verizon, and T-Mobile. NDIA emphasizes five main points in our reply comments:
1. Digital Discrimination Can Occur Regardless of Intent
ISPs argue in their initial comments that the FCC should only prevent and eliminate digital discrimination where there is discriminatory intent. NDIA refutes this argument in our reply comments. Requiring discriminatory intent would render the FCC’s rules useless against the digital inequalities that Congress directed the FCC to address.
2. The Commission’s Approach to Issues of Technical and Economic Feasibility Should Not Undermine the Purpose of Section 60506
ISPs argue in their initial comments that the “technical and economic feasibility” language means they do not have to alter their current business decisions and deployment practices. NDIA argues that such an interpretation would undermine the purpose of the digital discrimination proceeding—which is built on the assumption that ISPs’ current deployment practices are insufficient in providing equal access to broadband services.
3. NDIA Studies Are Robust and Prove Instances of Digital Discrimination
In bad faith, AT&T attacks NDIA’s past studies on digital discrimination. AT&T claims that NDIA’s studies are “fatally flawed” and that “these analyses claimed to find differences in deployments between African-American and other households.” Funny enough, none of NDIA’s past studies that AT&T references even use racial data—let alone make any claims about the relationship between deployment and race.
4. Widespread Deployment Does Not Mean Digital Discrimination Is Absent
T-Mobile states in its initial comments, “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.” NDIA argues it is wrong to assume that digital discrimination is highly unlikely just because service is available over the majority of a provider’s service area—since access is only one element of digital equity.
5. New Prescriptive Rules Are Needed
T-Mobile argues in its initial comments that “the Commission does not need to adopt new prescriptive rules to implement Section 60506 of the IIJA.” Again, we point out that such an interpretation is counter to the purpose of Section 60506.
You can read the full comments here.