NDIA has warned policymakers about digital redlining, a discriminatory practice that prevents certain populations from having internet access, since 2017. Thanks in part to these warnings and advocacy efforts, the creation of digital discrimination rules was mandated in the Infrastructure Investment and Jobs Act. The Federal Communications Commission (FCC) then spent two years working through a formal rule-making process culminating in the publication of official rules aimed at preventing and detecting digital discrimination last November. However, along with the rules, the Commission also published what is known as a Further Notice of Proposed Rule Making (FNPRM.) FNPRMs are published when an agency seeks to expand rules beyond those in the initial notice. The FCC’s FNPRM primarily focuses on regulations and reporting requirements to monitor and prevent digital discrimination as well as the creation of an Office of Civil Rights to oversee digital discrimination operations. On April 1st, we submitted reply comments to the FNPRM.

In the FNPRM, the FCC proposed several rules and regulations that would require ISPs to establish an internal compliance program that would be instrumental in preventing digital discrimination across the country. There is also a proposal to open an Office of Civil Rights within the FCC to handle digital discrimination issues. However, there was pushback from industry providers and associations claiming these mandates would be duplicative and burdensome.

We disagree with these claims and offered the FCC alternatives to meet the needs of both industry and public interest. 

 

Some highlights include: 

 

  • The FCC should base economic feasibility on current economic variables. The FCC initially proposed that the economic viability of projects be based on past industry practice. Because past industry practice has directly contributed to digital discrimination basing economic feasibility on those standards would only perpetuate the problem. We suggest the FCC use current economic trends and variables as indicators instead.

 

  • Annual reports of ISP projects’ size and type would provide several benefits to both industry and public interest. Industry could use these reports to help identify areas of need, while public interest groups could analyze trends and use the reports as tools for accountability. 

 

  • Include network performance, pricing, and demographic data in the annual reports. The initial metrics being proposed consist of only the nature of the project (deployment, maintenance, or upgrade), the number of households affected, and a narrative description of the project. The FCC needs to include network performance, pricing, and demographic data to get the on-the-ground picture needed to determine discriminatory practices.

 

  • Require the reporting to be done at the location level using Broadband Serviceable Locations (BSL). Census tracts are simply too large of a measure, often going for several miles in remote areas. If census tracts were used instead of individual locations, many instances of digital discrimination could fly under the radar. 

 

  • Set the household amount trigger threshold lower than 500 households. The FCC initially suggested that the minimum household amount needed for a project to be reported be 500 households. While deployment projects in highly populated areas will often be above that. Rural and Tribal projects will rarely cross that threshold, and maintenance and upgrading network projects often are lower than that 500 amount. Lowering the threshold will lead to a higher likelihood of catching issues of digital discrimination. 

 

  • Align and incorporate these reports into the biannual Broadband Data Collection (BDC) reports. ISPs are already required to report the locations where they offer service, new builds, and technology provided as part of their semi-annual reports to the BDC system. Incorporating these reports into the BDC reporting avoids unnecessary duplication and lessens the burden of these reports on ISPs.

 

  • Exclude no one from these reports. The FCC originally proposed excluding smaller rural and Tribal ISPs from filing these reports due to their size and capacity. Instead of excluding smaller ISPs, we suggest that the Commission offer technical assistance to lessen the burden on capacity to rural and Tribal ISPs.

 

  • Make these reports available to the public. By making these reports public, it ensures that independent researchers, public interest organizations, and digital inclusion practitioners can readily access and analyze trends in the data

 

Here are the official reply comments, for your reference: NDIA Digital Discrimination Reply Comments