These reply comments are submitted in response to the Commission's proposed rulemaking to address digital discrimination of access to broadband Internet access service. In these reply comments, we again urge the Commission to adopt an intent-based definition of digital discrimination because it is consistent with the text of Section 60506 of the Infrastructure Investment and Jobs Act. These reply comments emphasize that the record in this proceeding does not support the claims made in some comments that there is systemic digital discrimination in America. Also, in the context of responding to other parties, these reply comments identify requirements that should be satisfied before the Commission can impose liability on broadband Internet service providers (ISPs), as well as identifying limits on the scope of the Commission's rules and their enforcement.
Claims made in certain comments that there is clear evidence of pervasive digital discrimination rely on largely the same handful of studies that have significant limitations and defects, including reliance on outdated deployment data and a myopic focus on a particular ISP's footprint within a geographic area while ignoring that residents in the footprint are served by a competing provider offering comparable service. Moreover, purported low adoption rates do not constitute evidence of digital discrimination as consumers have many reasons for not adopting broadband – such as concerns about privacy, security, lack of a PC, and other personal considerations – that are outside the control of ISPs.
Instead of relying on faulty and outdated studies claimed to prove that digital discrimination of access is pervasive, current data based on accurate maps should be required for the Commission's adjudication of any digital discrimination complaint. And no finding of liability should be made absent the availability of accurate current data regarding existing broadband deployments.
Additionally, it would be wrong to find an ISP liable for digital discrimination of access if residents of the area already have access to one or more other broadband providers offering comparable services, and the Commission's rules should not recognize liability in such circumstances. The underlying purpose of Section 60506 is to ensure equal access, not to try to find back door traps to mandate fiber overbuilds. New entrants into the broadband market face financial risks in going head-to-head with incumbents. Rules that ignore the presence of already available services and high adoption rates would unreasonably expand the basis for liability and make entry even more financially risky for providers seeking to expand into new geographic areas. This would have the perverse effect of curtailing deployment.
The Commission should recognize that an available service is comparable whenever it can reliably support online edge services and applications that have relatively wide use among consumers. The rules should embody the principle of technological neutrality. So long as alternative platforms can meet speed and latency benchmarks, they should be deemed to be comparable services.
Importantly, there is research evidence that the presence of a local government-owned broadband network deters network investment and deployment by private market providers, and there should be a "safe harbor" from liability when an ISP's non-deployment decision is based on a refusal to overbuild and compete against a government-owned network.
Notably, there are a variety of instances in which laws and regulations control the deployment decisions of ISPs. Aside from any direct strings attached to the expenditure of federal and state subsidies which have the effect of dictating deployment decisions beyond ISPs' control, state and localities will continue to exercise authority to approve, limit, or prohibit the construction of new facilities and upgrades to existing ones. Accordingly, ISPs should enjoy a "safe harbor" from any liability when their deployments are made pursuant to federal or state subsidy awards. And ISPs should receive safe harbor when actions by federal, state, or local governments regarding permit or other approval processes have prohibited, limited, or delayed infrastructure construction and upgrades.
Similarly, ISPs should receive safe harbor from liability when they can show they were denied access to utility poles or that pole owners delayed approval of attachments or pole upgrades necessary for new attachments. And ISPs should be permitted to proffer evidence showing the technological and/or economical infeasibility of deploying to a given area due to the high cost of attachments, particularly where attachments would be needed for high numbers of poles.
The Commission's authority under Section 60506 almost certainly will be limited by the major questions doctrine. As explained in West Virginia v. EPA (2023), the major questions doctrine holds that there are certain "extraordinary cases" involving decisions of such "political and economic significance" that a "clear congressional authorization" by Congress is required in order for the agency to exercise the powers that it claims. The broader the extent to which the Commission's rules seek to impose liability on ISPs and the more onerous the restrictions and obligations they impose – particularly if the agency adopts a disparate impact definition and imposes pervasive restrictions and obligations on ISPs' deployment practices that effectively constitute unfunded buildout mandates and price controls – the more likely it is that such rules would be deemed unlawful under the major questions doctrine.
(P.S. FSF's initial comments to the FCC in its Digital Discrimination proceeding were filed on February 21, 2023, and they are available online.)
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