USTelecom offers suggestions on preventing digital discrimination

As detailed below, there are several steps the Federal Communications Commission can take as part of carrying out Congress’s direction to take into account technical and economic feasibility as it adopts rules in to eliminate digital discrimination. As an initial matter, when evaluating technical and economic feasibility, the FCC should account for the capital constraints that internet service providers (“ISPs”) face and the multi-faceted business decision-making processes that they implement to optimize investment. The FCC should refrain from adopting rules that would unreasonably disrupt ISP business decisions and thereby deter deployment of next-generation networks. Further, as the FCC considers implementing the law's requirement to revise the FCC's public complaint process, for complaints where the FCC determines that a prima facie (that is, upon initial examination) showing of digital discrimination has been presented, it should permit ISPs to raise arguments based on feasibility barriers. In particular, first, the FCC should create rebuttable presumptions where, in certain predictable circumstances there are feasibility hurdles that would lead an ISP to prioritize investing in deployment elsewhere. Second, the FCC should enable an ISP to demonstrate that it designed its policies and practices that direct its deployment investment in a non-discriminatory manner to allocate resources based on the company’s business goals, and that it applied those policies and practices consistently across the areas at issue.