Congress directed the Federal Communications Commission to pass rules this year designed to end digital discrimination. The directive could not be more clear: Enact regulations to “eliminate” existing digital discrimination on the basis of “income level, race, ethnicity, color, religion, or national origin” and to prevent it from recurring in the future. Contrary to the false assertions of some, this provision was openly discussed, debated and then supported on an overwhelmingly bipartisan basis.
As Public Knowledge sets out in its comments just filed with the FCC, this provision represents Congressional frustration with the approach the FCC has taken for the last two decades. It is an acknowledgment that in addition to “carrots” in the form of federal funding to support broadband deployment in rural and Tribal areas, the Commission needs to have some “sticks” in the form of clear, enforceable rules that will fulfill its more than 90-year mandate to ensure all Americans – no matter where they live or who they are – have access to communications services.
Getting strong, enforceable rules will not be an easy task. Many broadband providers, their trade associations, and even their astroturf groups have sought to obscure and undermine the Congressional mandate to shift from a regulatory structure in which the ISPs dictate how and when they provide service, to one in which there are clear rules and enforceable rights to ensure all Americans have access. These businesses and organizations are used to telling the FCC what they will and will not do, so getting them to understand Congress has told the FCC that that era is over and toothless regulations are not to be tolerated is hard for these entities to grasp. Now it is incumbent on the FCC to reject the ISPs efforts as contrary to the plain language of the statute.
So what is it we believe the FCC must do to fulfill the mandate in the law? First and foremost, we want the expert agency to rely on its expertise, developed over decades of promoting universal access to communications services, to help inform how best to make rules that are meaningful and enforceable. The Commission has a 90-year history of striving towards that goal, and it should leverage that experience here. We all need the FCC to re-engage and ensure access for all Americans.
Second, we need the FCC to craft rules that understand Congress was not asking it to delve into the minds of the CEOs and corporate boards of these companies to glean whether they purposefully sought to discriminate against low-income, minority, or Tribal communities (so-called “discriminatory intent”). Instead, Congress was directing the FCC to develop rules, agnostic to a provider’s intention, that would ensure “equal access” to all people, meaning bringing comparable broadband access to low-income, minority, and other communities to avoid “discriminatory impacts” where these communities are passed over in favor of wealthier communities getting better broadband.
It is not that putting in place strong, enforceable rules is in some way a judgment that these companies are bad or good; it is a judgment that broadband is an essential service that is a requirement to fully participate in our society and that leaving anyone behind is no longer acceptable. So saying, as many have over the last decade, that this or that community is “uneconomic to serve” is no longer an appropriate response.
The FCC’s rules should provide opportunities for funding through the universal service program to aid in access for rural, Tribal, and other sparsely populated communities and set spectrum policy in a way that promotes access for these communities. But, the FCC rules must also ensure that low-income communities, regardless of where they are, have access. Again, Congress made clear encouragement through funding was not sufficient motivation for ISPs to act to end digital discrimination; it wants an affirmative obligation based on actual rules.
The ISPs have countered saying that they cannot possibly be expected to build everywhere, all at once. But that is a red herring. For 90 years for telephone, 40 years for cable, and 30 years for mobile services, the law has required service throughout the license or franchise area, without regard to race, religion, or income level. No one has ever expected providers to build “everything, everywhere all at once” and no one will start expecting them to do so now. The FCC’s rules will not be intended to punish ISPs or demand the impossible of them, but to ensure that communities no longer go underserved. By adopting a case-by-case approach to questions such as what deployments are technically and economically feasible, the Commission can hold ISPs to account, as Congress intended, while considering differences between technologies and between large and small broadband providers.
Thanks to bipartisan efforts in the last Congress, we now have a path forward to ending digital discrimination, which, along with infrastructure funding, will be a substantial step towards closing the digital divide. We look forward to working to help the Commission craft meaningful rules to help bring about Congress’ directive: ensuring equal access for all Americans.