Exactly one year ago (on November 15), the Infrastructure Investment and Jobs Act (IIJA) was signed into law. In addition to making historic investments in broadband and digital equity, the bill also establishes the imperative to address digital discrimination.
The IIJA directs the FCC to adopt rules to prevent and eliminate digital discrimination and “promote equal access to broadband” across the country, regardless of income level, ethnicity, race, religion, or national origin. The IIJA requires the FCC to create and adopt these rules by November 2023.
The FCC is engaging the public in a few ways in their effort to learn about different perspectives on digital discrimination. Beginning with the Notice of Inquiry (NOI), the FCC asked for input on how to implement the digital discrimination section of IIJA. In May, NDIA submitted comments on our perspective of how the FCC should implement rules to prevent and eliminate digital discrimination. The rulemaking process is ongoing, and the FCC will solicit public input again on proposed rules to prevent and eliminate digital discrimination.
We recently joined advocates in a conversation with the FCC, urging them to adopt a broad and layered perspective of what data may be used to identify digital discrimination and to consider what additional data should be collected to help the Commission identify discrimination.
In addition to adopting final rules to ensure that everyone benefits from equal access to broadband, the IIJA also requires the FCC to develop “model policies and best practices that can be adopted by States and localities to ensure that broadband internet access service providers do not engage in digital discrimination.” These model policies will not be the final rules that the FCC adopts; they are intended to be best practices for states and local governments to consider.
To support the development of these model policies, NDIA participated in the Digital Empowerment and Inclusion working group, which operated under the direction of the Communications Equity and Diversity Council, a committee formed by the FCC to advise them on equity in digital communications services. The working group included public interest groups, subject matter experts, and internet service providers (ISPs). While many perspectives from NDIA were included in the recent report released by the FCC, NDIA continues to advocate for these interpretations of IIJA that clearly promote equal access to broadband and prevent digital discrimination:
- Digital discrimination can occur regardless of whether discriminatory intent is involved. It is a problem of drastically unequal digital opportunities and outcomes, and the focus must be on the communities impacted. For example, if an ISP routinely abandons network maintenance in certain communities and not others, that’s discriminatory, whether or not the ISP made that decision because of the income of those residents. The impact of that business decision left one community worse off than others.
- Digital discrimination involves all aspects of broadband service, including issues related to network performance, service terms and conditions, and price. For example, if a community with the oldest, slowest infrastructure pays more per megabit for internet service (i.e. tier flattening), that community is experiencing discrimination.
- Digital discrimination can involve marketing or advertising. For example, routinely advertising special discounts in some communities (e.g. more wealthy residents) while failing to market them to residents in other communities is discriminatory.
- Routine data collection on all aspects of broadband service is critical for identifying discriminatory outcomes. For example, information about data caps and throttling will help the FCC determine whether terms and conditions of a service are applied fairly among subscribers.
- Effective enforcement will require a dedicated, transparent, and easy public complaint process for issues around digital discrimination and unequal access to broadband. In addition, responses from ISPs should be made publicly available.
What’s Next?
We expect the FCC to release a Notice of Proposed Rulemaking in early 2023, and we will continue to share updates as the rulemaking process around digital discrimination continues.