NDIA Adds Community Perspectives on FCC Digital Discrimination Process

The Federal Communications Commission is engaging the public in a few ways in its 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 the Infrastructure Investment and Jobs Act (IIJA). In May, the National Digital Inclusion Alliance (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. To support the development of model policies, the 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 the 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. 
• 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 the terms and conditions of 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.

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.