Pending Digital Discrimination Rules Driving Heavy Lobbying Activity

Broadband providers and allies are heavily lobbying the 10th floor regarding the pending digital discrimination order on the FCC's November agenda (see 2310240008), raising red flags and pushing for changes, per docket 22-69 filings Monday. Fans of the draft order are also calling for changes.

The Wireless Infrastructure Association said that in a meeting with Commissioner Brendan Carr's office, it urged modifications to the draft order that would make it clear entities that don't have a direct relationship with end-user customers and that deploy or maintain infrastructure at the direction of a broadband provider are not presumed to be able to meaningfully affect consumers' access to a broadband service. In a separate call with Carr, USTelecom CEO Jonathan Spalter said the draft order's scope "is impermissibly broad [and] will create regulatory overhang on every decision made by a broadband provider."

Cable interests told Wireline Bureau staffers and FCC Digital Equity and Inclusion advisers the order would "expose broadband providers to liability for many legitimate, nondiscriminatory business practices" and argued it should recognize that the Infrastructure Investment and Jobs Act doesn't mention price or affordability as a factor for assessing a provider’s equal access obligation. The cablers said that because the order would impose liability based on impact instead of intent, the commission should give clarity on what would not constitute digital discrimination. They said the FCC should align the draft order's legal standard with the framework in the Supreme Court's 2015 Inclusive Communities decision, with the Enforcement Bureau having to prove a less-restrictive alternative before liability can be imposed. The cablers were from NCTA, Comcast and Charter.

In meetings with representatives of Carr's and Chairwoman Jessica Rosenworcel's offices, Verizon laid out a litany of criticisms about the draft order and said the proposed mediation process should be made binding on the agency and its bureaus.

Urging the order to go further, National Coalition on Black Civic Participation CEO Melanie Campbell told Commissioner Anna Gomez guidance could come in the form of an annual state of digital discrimination report that includes FCC findings of discrimination, the steps taken and the resolution of the complaints. Any mediation process should come with deadlines of seven days to respond and 30 days to coordinate and conduct discussions on facilitating equal access to broadband, the Campbell's group, the National Urban League and National Council of Negro Women told representatives of Chairman Geoffrey Starks' and of Rosenworcel's offices.

Separately, Carr released a three-page, 1,600-plus word statement criticizing the digital discrimination draft order. The rules "would give the federal government a roving mandate to micromanage nearly every aspect of how the Internet functions," he said. "Talk about central planning." Lawmakers "never authorized the FCC to regulate these industries or entities," he said. "So, to all the businesses and individuals that will be subject to FCC regulation for the first time ever, welcome, I hope you have good lawyers."