The FCC's Digital Discrimination Rulemaking: Facilitating Equal Access to Broadband Services

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Jack Derwin:  Hello, and welcome to this Federalist Society virtual event. My name is Jack Derwin. I'm associate director of the practice groups here at The Federalist Society. Today, we're pleased to host a panel discussion titled "The FCC's Digital Discrimination Rulemaking: Facilitating Equal Access to Broadband Services." Joining us is a stellar panel of experts who bring a range of views to the topic. In the interest of time, we'll keep intros very brief. You can view our speakers' full bios at fedsoc.org.

 

      Our moderator today, Randolph J. May, is founder and president of the Free State Foundation, an independent nonprofit free market-oriented think tank founded in 2006. After a discussion between our panelists, if we have time remaining, we'll go to audience Q&A. Please enter any questions for our speakers into the Q&A function at the bottom of your Zoom window. Finally, I'll note that, as always, all expressions of opinions on today's program are those of the speakers joining us today. Without further delay, the floor is yours, Randy.

 

Randolph J. Mays:  Thank you Jack. And welcome, everyone. Thanks to The Federalist Society for hosting this important Teleforum, and to the panelists for taking time to participate. And thanks, of course, to the audience, for joining us. We have a distinguished panel of experts with us in Seth Cooper, Harold Feld, and Clint Odom. I'll say just a bit about them in a moment, a bit more. But first, a word about the background for today's program.

 

      The Infrastructure Investment and Jobs Act, signed into law on November 15^th, 2021, requires the FCC, within two years, to promulgate rules to "facilitate equal access to broadband service". And, in satisfying that obligation, to prevent "digital discrimination of access, based on income level, race, ethnicity, color, religion, or national origin." Significantly, the statute also requires that the rules take into account issues of technical and economic feasibility.

 

      The FCC issued a notice of proposed rulemaking on December 22, 2022, and comments and reply comments have now been submitted. Given the importance of widespread access to broadband services — which I think all of the panelists will agree is a worthy goal — the digital discrimination proceeding is one of the most important items on the FCC's plate. So, the panelists, from their own diverse perspectives, are going to address key legal and policy issues presented in the rulemaking.

 

      I don't want to steal any of the panelist's thunder or take time away from them, so I'm just going to list, briefly, in broad fashion, some of the key questions that I expect will be addressed. Does the agency have authority, under the Infrastructure Act or otherwise, to adopt rules that would impose liability on broadband providers, based on a showing of unintentional disparate impact? Or is evidence of intentional discrimination required?

 

      Two, in considering liability, how should the agency take into account claims relating to the technical and economic feasibility of making available equal access? Three: what impact will the rules have on investment and innovation, under the various scenarios? And then, finally, what type of process should the commission employ in considering complaints of digital discrimination, and whether or not to impose sanctions? I think those are some of the key questions. Of course, there may be other aspects of this proceeding that come up. In fact, I'm sure there will be.

 

      Now, I'm going to give you the panelists' titles. And you can get their full bios, as Jack said, on The Federalist Society website. Seth Cooper is director of policy studies and senior fellow at the Free State Foundation. Harold Feld is the senior vice president for Public Knowledge. And Clint Odom is vice president for strategic alliances and external affairs at T-Mobile.

 

      I've asked each panelist to speak initially for no more than eight minutes. And to be fair, I'm going to enforce that time limit, even though they're all my friends. And then, I'm going to give each panelist a few minutes to respond to each other, maybe even a couple times. And we're going to try and save some time for a few questions from the audience, at the end. So, keep that in mind as we go along.  So, with that, Seth, you go first. And then, Harold and Clint will follow after you. So, take it away, Seth.

 

Seth L. Cooper:  Thank you, Randy. Thank you to The Federalist Society. And thank you to the fellow panelists who've joined us today. The key problem with the FCC's proposed rulemaking, regarding digital discrimination of access, is that, in important respects, it exceeds the statutory authority. And here, I'm talking about the FCC's proposal to impose disparate impact liability on broadband internet service providers. Certainly, intentional discrimination is squarely within the statute.

 

If the statute means anything at all, it directs the FCC to adopt rules to prohibit intentional discrimination of access, based on membership in a protected class. But the statute does not authorize disparate impact liability. And there are three bases for this, just by reading the statute, Section 60506 of the Infrastructure Act. The first reason is it includes language about technological and economic feasibility. It does this in a couple of places. First, in a declared statement of policy in subsection (a).

 

It's the declared policy of the United States, insofar as it's technologically and economically feasible, to enable broadband access on an equal basis to all users within a provider's area. And then that same language is included in the substantive Section B that directs the FCC to adopt a rule prohibiting digital discrimination of access. So, the FCC must factor in technological and economic feasibility into its rules. Now, that language "technological and economic feasibility" bespeaks the factors or reasons behind a decision-maker's decision, in terms of deploying broadband. It speaks to the decision-maker's intent, rather than the end results for the users or subscribers.

 

The second reason the statute should be read as an intent statute is it includes the language "based on." In other words, it prohibits digital discrimination, based on one's membership in a protected class. That language, in other cases, has construed "based on," to mean the foundation, or the source. And, again, it bespeaks the decision-maker's intent in what's going on, rather than the end result for the users. And that's really bolstered by the third, and perhaps the most important facet of the statute, and that's the lack of any catch-all term, such as "otherwise adversely affects," or "results in."

 

So you have cases such as the Texas Department of Housing and Community Affairs v. Inclusive Communities Project case from 2015, and some of the other Supreme Court decisions where they look at things like the Title VII of the Civil Rights Act. They look at the Fair Housing Act, the ADEA. And they find that when the statute has language such as "prohibits actions that otherwise adversely affect members of a protected class," "that otherwise adversely affect," or that "otherwise" language is very key in signaling that it's focused on the results, rather than the intent of the decision-maker.

 

So, it's for those reasons that the statute is best read as an intent-based statute. And, beyond that, as important as it is to stick within your delegated authority, I think it's the wrong approach to impose unintentional disparate impact liability here on providers, because it's really not a good idea to impose that kind of liability when there are a lot of factors out there that are beyond the provider's control.

 

And so, when we're talking about geographic terrain, when we're talking about the state of technology, when you're talking about population density, when you're talking about the existence of market competitors or incumbents with a large market share, when you're talking about different regulatory environments, in terms of difficulty in franchise agreements or getting infrastructure sited, or even availability of spectrum, a lot of those factors are beyond the broadband provider's control, or ability to influence that much. And so, I think the case for imposing disparate impact liability becomes much harder, given all those factors.

 

And when you try to impose such liability with all those factors outside their control, you may, more likely, have the effect of disincentivizing the efforts needed to expand service to new areas and deploy to new areas. And so, there is a problem there about potential disincentive to investment from that liability, and the unknowns that are involved. And I would combine that, too, with looking at the proceeding has been very interesting. There's no showing that providers have any kind of financial incentive to engage in this kind of discrimination. I think it would be terrible business.

 

And, certainly, there was no evidence in the record to suggest any kind of intentional discrimination was going on. I think that seems to be conceded. Maybe it's debated about whether or not there is disparate impact taking place out there. I don't see good evidence of it. And, for that matter, a lot of these providers are participants in subsidy programs to reach hard-to-reach areas in places like that that would reach some of the communities that some claim would be disparately impacted. But I think it also speaks to the point that ascertaining who has access, and getting this demographic information and things of that sort to ascertain who has access, and what classes, is a very difficult undertaking as well.

 

And so, these things are not simply beyond the control, but even the knowledge, in some cases, of the providers, to be able to deal with. And I think the FCC's ongoing proceeding in adopting broadband maps, that's a real challenge. And it shows the difficulty of ascertaining who all has access, when, and where. And, certainly, defining it by membership in these classes would also add an extra layer of difficulty and complexity.

 

What I think the FCC should do is stick within the confines of the statute and prohibit intentional discrimination of access based on membership in a protected class. And, if it wants to devote resources to try and study if there are areas that, currently, there's a disparate impact in certain communities in certain areas, by all means, do so. That knowledge could be very useful. And, certainly, I think the best approach would be to financially target those areas with subsidies to make sure that it's technologically and economically feasible to reach people there, and have them brought up to speed, so to speak.

 

That all being said, the FCC has proposed to impose disparate impact liability on providers. I think there are some things that the FCC could do, if it takes that approach — which I don't think it should — that could make that less objectionable, both in terms of its complaint procedures, and by adopting a set of clear harbors. I think one thing that the FCC should do is make clear that standing to bring complaints about lack of equal access should subsist in parties in interest, rather than outside parties who don't have an interest, rather than making it a free-for-all.

 

And I also think just simply making it clear about the burden of proof in these kinds of complaints if they want to show that there's a disparate impact liability for unequal access. The burden should be on the party making the complaint. They simply just need to show evidence, as a prima facie showing of discrimination. They should at least make some showing beyond a conclusory statement that, not only, they lack access, but, also, they would be required to show that there's no technological or economic feasibility barrier to reaching them. I think that would be very important in somewhat cabining the open-endedness of a disparate impact liability.

 

And I also think it very important that providers not be dinged if a user or subscriber already has access to a service by a comparable service. And that's very important that that be taken seriously. They may not be happy about a lack of availability of fiber. But if they've got a gigabit cable provider, for instance, serving them in the same area, they should be considered comparably served. And I think there's also a set of clear safe harbors that the FCC could adopt, as well.

 

Randolph J. Mays:  Seth, excuse me for interrupting. But I'm actually going to be true to what I said for each of you, so --

 

Seth L. Cooper:  Sure, well, maybe I'll talk about it when I come back. But there are some clear safe harbors that we could adopt, as well.

 

Randolph J. Mays:  Yeah. And I would say save some. And I'm going to move on now to Harold Feld. So, Harold, why don't you take it away? You're on mute, Harold.

 

Harold Feld:  Thank you. And I will say that I think Seth actually weeds the FCC's NPRM far more aggressively than we have. I think the NPRM tried very hard not to reach any kind of proposal or conclusion. It asks a lot of questions. It asks, of course, if there were disparate impact, how would we measure it? How would we do it? But I do not believe that the FCC has committed itself to a specific proposal, with regard to disparate impact of disparate treatment. I would, in fact, say some of our friends were somewhat disappointed that the FCC did not have a proposed rule, in this regard.

 

      So, I, first of all, want to stress that things are very much up in the air. Now, I think we need to clarify a number of things as we talk about disparate impact versus disparate treatment, protected class, and what do we mean? We, Public Knowledge, have taken the position that this provision is no different than provisions we have seen for every other form of communication when it has become a matter subject to FCC regulation. So, we start with the telephone. Section 202(a) says, "No unjust or unreasonable discrimination." We have the Cable Act, which includes a franchising provision in 541(c), which says that franchisees must make sure that you reach all neighborhoods and do not discriminate on the basis of income.

 

      When we did Section 309(j) to authorize auctions, there is language saying that the benefit should flow to everyone, particularly women- and minority-owned businesses, and that everyone should have an opportunity to have licenses. This comes from that same tradition. It is necessary, because Congress couldn't agree on classification of this as Title II, which would have rendered this subject to 202(a). And there were pending 202(a) complaints, with regard to discrimination, prior to reclassification of broadband as a Title 1 information service. So those were dismissed.

 

      So we have a hole in the law right now which permits both intentional discrimination, as well as the kind of market-impact discrimination that we routinely see that the Communications Act pushes against, where a rational actor says, "Well, because of income, this neighborhood is not valuable enough for me to serve, either because the market penalized me because you average the return on investment for each subscriber, so serving a lot of poor people brings us down." Or even on the basis of unfortunate lingering stereotypes, with regard to, well, Latino neighborhoods, or poor neighborhoods, or whatever is the basis. 

 

But this is why it's critically important to remember that income is a protected class, with regard to this, which follows in this tradition of the FCC has an obligation to step in where the market would fail, where the rational economic actor would say, "This is not worth it for me to serve." We have consistently said, over 90 years, it is the job of the FCC to say, "No, you're going to do it anyway." Many of the provisions here are designed to take the place of what is the usual method, which is licensing. We do not license broadband providers. So, the FCC is required to set a suitable service area where we would say, "Okay, take the technological and economic factors into consideration." We're not going to ask broadband providers to do the impossible. That's what the BEAD program, that $42 billion to build out to rural areas, is all about. 

 

We're talking about the little holes that appear because the broadband provider didn't think it was worth it to upgrade this particular neighborhood. There is chronic underinvestment that has been documented. And that chronic underinvestment, for a variety of reasons, parallels race, as well as income. The point, then, of the FCC, in all of this, and our belief is, the FCC has to set a set of rules which looks at all of these factors, and says, "Is there a suspicious pattern here, within a service area?

 

We've proposed the metropolitan statistical area as being the appropriate area where, if this were licensing, you'd average to see if you make a suitable profit on the whole area. So, yeah, you want to serve, you want to cherry-pick. This is an anti-cherry-picking statute. And I think the FCC has that authority. It has consistently done this in every other technological generation. This is entirely consistent with that. I believe the language of the statute is entirely consistent with that, and how this piece fits into the rest of the package.

 

We have money for buildout. We have ACP to subsidize those who can't otherwise afford it. But we have some consumer protection elements as well, such as the broadband consumer label for transparency. And we have this Section, 1754 60506 of the IIJA, as the plugging that final hole that would otherwise be filled in a Title II universe. With regard to the question of process, the statute very clearly says, "well, the FCC needs to amend its complaint process in order to be able to take complaints." So, I believe the FCC, as it has in other situations, should be willing to accept complaints from individuals, particularly with regard to individual discrimination.

 

I'd like to believe that individual discrimination doesn’t exist anymore. But I think that we may well find places where we don't have statistical evidence because it's individual cases. But that should be covered. And I'm glad we have agreement on that. But, additionally, I think that the FCC should be able to take complaints from individuals, complaints from the local government, where local government has seen a pattern of complaints brought by organizations on behalf of their members, the typical sorts of complaints that we see in these situations. I think the FCC should balance all of the factors.

 

This is a case where I believe that traditional ideas of, make a prima facie case, and then there's a burden shifting, are important. And that when we talk of disparate impact versus disparate treatment, which has become kind of the main thing, it's not just a question of, do you need to peer into the heart of the provider to determine their reality? If the provider has said it's just not worth it for us to serve this neighborhood because of insufficient rate of return, that is what income discrimination means. That is what is covered.

 

So, while I think it is much less likely that we will see evidence of racial discrimination, particularly by the biggest providers. But we have seen cases of underinvestment where we have poor neighborhoods, which, unfortunately, for reasons we don't discuss here, heavily overlap with minority majority neighborhoods. And I believe that is entirely fair game, within the statute. If you're treating poor people differently from the wealthier neighborhoods, classic anti-cherry-picking provision, exactly what the FCC was designed to do, going back to 1934.

 

I will add that when we get to things that might constitute more direct forms of discrimination, there's a provision of the statute, Section C, which, in fact, instructs the FCC to work with the Department of Justice and other agencies. We believe that's a referral mechanism, so that if you see a pattern of discrimination that fits within HUD's mandate to ensure no discrimination based on housing, that there's under-investment by public housing, you'd refer this to HUD for their expertise and their statute.

 

Finally, I do want to make one important distinction, with regard to this question of what does it mean by equal access? Does it mean as long as there's one provider that provides, that's okay? Or do we mean that every provider has a responsibility? I believe it is the latter, because we want to ensure here the benefits of competition. This is not simply what we think of as a carrier of last resort idea, that, as long as there is one provider in the area, that duty is fulfilled.

 

The statute, we believe, reads very clearly, particularly when taken in combination with the other findings within the broadband section of IIJA, that particular communities are being left behind, and that all Americans benefit from competition, that Congress intends that no one should cherry-pick, with regard to the deployment of their service. I'm sorry. I'm at eight minutes, so I'll stop there. 

 

Randolph J. May:  Actually, I gave you an extra minute. That was really helpful. I think, in line with what I said in my introduction about having a diversity of perspectives, which I value, and I know The Federalist Society does too. I think our audience can see that we have that today. So, thank you, Harold. And we'll come back to you. And now we're going to turn to Clint Odom, with T-Mobile. So, Clint, you've got eight minutes as well.

 

Clint Odom:  Great. Thank you, Randy. And I want to thank The Federalist Society as well, for the kind invitation. And Harold and Seth are very well-known institutions in this town. And I'm really proud to be alongside them to share my perspective. I may be one of the few people in town, and maybe even on this panel, who has served as both a civil rights executive and litigant and spent some time at the Commission and as a regulatory and telecom lawyer, dating back to the late 80s, if you can believe it.

 

My first job in this business was with the Utilities Telecommunications Council, trying to figure out how utilities were going to survive after their spectrum was taken to create the personal communication service. So I've seen quite a bit in my time. And I've really been fortunate to sit on the intersection of both civil rights law and telecommunications law. And this case, as you indicated, Randy, is maybe one of the most significant and important rulemakings that the FCC is going to consider in some time.

 

First, I want to say the genesis of this rulemaking is not the Infrastructure Investment and Jobs Act. It's really the longer, more pernicious problem of red lining in this country. Many of you may know that, dating back to the earliest parts of the 20^th century, there was really a conspiracy between banks, communities, and the federal government to make sure that people of certain demographic groups remained in a particular area. African Americans were literally penciled in a red line into certain communities and were denied the opportunity to have mortgages or to purchase homes outside of that encircled area -- Jews, many of whom also experienced the same kind of discrimination.

 

And after years of fact-finding by Congress, after years of fact-finding by the predecessor to HUD, Congress finally passed legislation in the Fair Housing Act that broke down red lining and declared it illegal and ripped it from its root and acknowledged the federal government's role in perpetuating this problem. For many years, advocates, especially in the tech realm, have really wanted to make an analogy between the pernicious problem of red lining and digital red lining. In fact, this was one of the sort of sub-silentio debates in the Congress, as to what they were going to call this provision or what they were going to call this phenomenon that we now know as digital discrimination.

 

There were a lot of people who wanted to see it known as digital red lining. But there are such stark and distinct differences between housing discrimination and employment discrimination and what we are calling digital discrimination, that the two concepts almost shouldn't be discussed in the same way. And I would think that the Federal Communications Commission would also share this view, because to not share this view would be a tacit admission that the federal government, or even the Federal Communications Commission, has somehow been asleep at the switch.

 

Public Knowledge's brief, the FCC's NOI, in its notice of proposed rulemaking, did an excellent job of describing the Commission's existing authority, authority that it's had dating back to the '34 Act, to prevent discrimination against people in protected classes. This is nothing new. I would say that the Commission has, from the beginning, had the time and the authority to entertain complaints about digital discrimination, but has never done so. Congress has had the opportunity to conduct fact-finding and hearings on the problem of digital discrimination, but it has not. And it certainly did not, in the context of the Infrastructure Investment and Jobs Act.

 

I think it's fair to say the legislative history on this provision is incredibly thin, and looked nothing like the kind of fact-finding that went into any of the fair housing laws, the age discrimination laws, the employment laws. These things look completely different. But we're talking about them as if they share a common legal heritage or jurisdictional heritage that just is not there. T-Mobile, for its part, as your viewers know, is a pure wireless company. We do not deploy infrastructure through wires, as such, that might form along the boundaries of a jurisdiction or a neighborhood. We have radios that emanate outward, in trying to connect with receivers on the other end. 

 

Our business is all about putting as many people as we can on our network as possible. The comments that we filed before the FCC showed, in great detail, how much of these protected communities we serve. All of them are upwards of 90 percent. The largest single segment of our customer base is Latino. Between T-Mobile and our Metro brands, these are communities that we serve. We do very good business with these communities, and love serving them. So, the idea that T-Mobile might cherry-pick or somehow escape the opportunity to serve as wide a market as possible, that doesn't fit our particular brand.

 

Seth raised the point earlier, which I think is probably the centerpiece of this discussion. I could talk a lot about enforcement, and I could talk a lot about what the next steps should be. But he referenced a 2015 case by the United States Supreme Court: the Texas Department of Housing v. the Inclusive Communities Project. There, in a 5-4 decision, in an opinion written by Justice Kennedy, the Supreme Court upheld the idea of disparate impact liability in the housing and civil rights context.

 

He noted, however, in his decision, that this liability theory was inherently unsuited or very difficult to apply in concepts outside of housing and discrimination, because the absence of some service could be used as prima facie evidence of intentional discrimination, or as a proxy for intentional discrimination. And I think we should probably listen to what Justice Kennedy was talking about in that majority opinion. The dissenting opinions, however, were equally important. And I will draw everyone's attention to the fact that Justices Thomas and Alito dissented in that case. And they said two things that are very important.

 

One is Alito said there's nothing in the legislative history of any of these statutes that countenances the ability of a plaintiff to prove intentional discrimination by statistical or other evidence. Justice Thomas went farther and said discrimination can only be found by intentional acts by the discriminating party. There's probably a 6-3 majority on the United States Supreme Court that isn't adherent to one or both of those views.

 

And the thing that I have tried to talk to our friends on the left and the right about, and our folks at the FCC, is that by putting forward a statutory scheme with very little statutory fact-finding, on a very thin and bootstrap jurisdictional basis, could very well land this set of rules in front of the United States Supreme Court in a way that would not only eliminate disparate impact as a recovery theory in the communication space, but also in housing, also in finance, and also in employment. So we need to be very careful here about the terms that we throw around. And let's let some of that 40-some billion dollars of BEAD money work its way through the system, addressing some of the holes and gaps in our coverage here in the United States. And then we can take a look to see if something more needs to be done. I'll stop there, Randy. I'm a little over time. I apologize.

 

Randolph J. May:  Clint, thank you very much. I have to say that as long as Clint has been doing communications policy — he gave us some of his history, and I know Harold, as well — I've probably been doing it even longer. And with all of that, I have to say that this particular panel is really impressive, in terms of the scope of their knowledge. So, again, I'm grateful you're all here.

 

So, as promised, what I'd like to do now is to give each of you a chance to take two, three, maybe even four minutes, and go around and just respond to whatever you would like to. And then I'm going to remind our audience that I'm pretty sure that Q&A function is open. So, if you have questions, feel free to put them up there and we'll see whether we can get to those. So, let's go in the same order. And we'll just go in the same order, and Seth, take maybe three minutes, if you'd like, and hit some of the points you would like to respond to.

 

Seth L. Cooper:  Thank you Randy. As far as the FCC's rulemaking and my aggressive reading of it, it simply comes from looking at Paragraph 12 of the proposed rulemaking. The FCC calls for a rule that prohibits policies or practices not justified by genuine issues of technical or economic feasibility that differentially impact consumers' access to broadband internet access based on income level, race, ethnicity, color, religion, or national origin.

 

      The second part of that definition goes into intentional discrimination. That second part tracks very closely with what the statute says. The disparate impact does not. So, it's there. It's been proposed. And so, I see that there. That seems to signal a direction. And my concern is the statutory issues that I spoke to. But then it's the combination of, yes, this is a very open-ended rulemaking. If you take a PDF of the rulemaking and type in a question mark in the search bar, you come up with 153 responses. So, there's 153 questions the FCC poses. And so, like any other regulatory matter, that raises tremendous issues of an aggressive theory of liability, and seemingly open-ended rulemaking going on with all those questions.

 

      And so, when you don’t see it formed, and it's half-baked, that's really where the concern comes in. Providers in broadband — like just about many industries — they can handle liability rules. They just need to have a clear sense of what those rules are. And so, the other difficulty comes in with this rulemaking, as there's some tension in the language itself. Income level is a protected class here. And you cannot discriminate against people based on income level. And that makes sense. But the statute is also concerned with economic feasibility. And so that can have some impact on the economic feasibility. And you're getting into kind of a wheat-versus-chaff problem. '

 

And so, I look forward to seeing what the FCC does with these questions. It's hard to say more until you get something that's clear. And that's also why my remarks have tried to get a little more clear and into some things the FCC could do to make disparate impact less objectionable. I started to talk about having a clear set of bright-line safe harbors. I think that would be very helpful, for instance, where broadband providers have significant reliance interests, if they deployed to an area in reliance on merger conditions that the FCC or state commission imposed, if they deployed to an area pursuant to a franchise agreement by a state or a county, for instance, that authorized, or a city.

 

They should be given safe harbor from liability by complying there, and not be responsible for things that are outside their territory of the franchise agreement. I think there could be safe harbor if the provider wanted to provide to a certain area, but they were denied access to rights-of-way, or their infrastructure was denied permits for approval to be constructed or upgraded, things of that sort. Or they're complying with a federal subsidy program like Lifeline or something like that.

 

And I appreciate everything that both the panelists had to say. I think, also, that intentional discrimination is not a toothless thing. You can show patterns. You don't need to show it, necessarily, in someone's mind. If you can show a pattern from which you can have an inference of discrimination, I think that's very important. You just need to get more meat on the bones. And, again, I'm just interested in seeing what the FCC will actually do, in resolving many of these 153 questions that they posed.

 

Randolph J. May:  Thanks, Seth. In my mind, I was going to ask you guys — if you didn't delve into it — maybe, again, about the juxtaposition between income being identified as a protected characteristic on the one hand, and, on the other hand, the requirement to take into account technical and economic feasibility. And I think you said something like, "That's a wheat-versus-chaff problem," which, I haven't heard that phrase before, but that seems applicable. So, Harold, take three or four minutes. And then we'll move on Clint. You're muted again, Harold.

 

Harold Feld:  I did it again. Sorry. First, to address Clint's point about T-Mobile, I don't know that this is about a particular provider, although, AT&T, certainly, there have been a lot of questions raised about their underinvestment in a lot of communities. We're quoting Supreme Court justices. I will point to Oliver Wendell Holmes and his famous speech, "The Path of the Law," which emphasized that we don't make law for good men. We make law for bad men.

 

We can have lots of good actors and still our laws are directors for addressing the bad actors. And, given the lengthy issue of cherry-picking within the context of telecommunications services, I think there's a lot of good reasons for Congress, which made explicit findings. It's true, I have to agree with Seth, there's very little legislative history. But Congress did make explicit findings, with regard to the problems of lack of access, and a specific finding that communities of color and low-income communities, as well as rural communities, are particularly impacted.

 

So, I do think that that bears weight. I think there's a lot of evidence in the record, with regard, particularly, to the question of cherry-picking and discrimination of access against low-income Americans. You have to have the infrastructure there for the subsidy program to work. And there's sort of an interesting relationship that people are talking about now, about how ACP supports the infrastructure once it's built, and how we need the BEAD program to build out the infrastructure.

 

So, again, we believe all these features of the statute go hand-in-hand to work with each other. I don't think you need bright-line safe harbors, so much as a totality of the circumstances and guidelines. I think, especially, we're going to have to do this on a case-by-case adjudication basis. We're going to have to work out a number of things, for example, technological and economic feasibility. These can come up in a variety of ways. We've listed some in our comments, where we think the FCC should provide guidance and say, "Yeah, these sorts of things might be problems."

 

And I absolutely agree that where the provider has been denied a right of way, that's a significant issue. And you can't be held accountable for what you can't do. We've said in our statute, this is about not asking ISBs to do the impossible. But it is asking them to take a broader view of what is possible, to avoid the traditional problem of cherry-picking, in provision of services. Finally, in light of the concern about the Supreme Court and these rules, I will point out two things.

 

One, we had, in the Supreme Court's case last week, with regard to the Indian adoption laws, that Congress can act, pursuant to other goals, when it creates what look like racial preferences. So, there, the Court acknowledged that Congress was concerned with preserving the political structure of tribes, the culture of tribes. And that was important. Now, they punted on the equal protection question, but there was an acknowledgement that that was a valid goal of Congress here. We are talking about ensuring universal provision of broadband, which is, again, a valid goal of Congress.

 

And I will conclude with this thought experiment. Let us pretend that the FCC said "We’re going to go with disparate impact for income discrimination, but disparate treatment for racial discrimination. And what would we say then? Would we still have the same fear that the Supreme Court would come in and say you can't do disparate impact based on low income? That Congress can't have concerns, with regard to income discrimination? That there's no history of cherry-picking in telecommunications? I think not.

 

And if we agree that income provides a suitable reason for disparate impact analysis, I think that we can take the same approach with regard to racial discrimination, religious discrimination, and say, "Yeah, this is what Congress intended. Congress intended the same thing that they intended with low-income discrimination in these categories," and that the Court should view this as a Communications Act universal service provision, rather than an attempt to remedy past wrongs, such as the housing anti-discrimination provisions.

 

Randolph J. May:  Harold, you are inside of my mind, which worries me a little bit. But I was going to ask you about Clint's reference to the Supreme Court, which, to me, would seem to be a valid concern, and may still be. But you anticipated that and gave a response to that. And Clint may have a further response to that, and whatever else he wants to add at this point. Clint?

 

Clint Odom:  Thank you. First, Harold referenced the fact that the NPRM, and probably the NOI before that, was a fairly open-ended set of questions. He may be a bit too modest here in his description of the NPRM. PK has always been an avid advocate, and a very strong voice of the FCC. My sense, from just being around the place for a while, is that the FCC is probably writing bits and pieces, if not the entirety of what this report and order is going to look like. Congress has given the agency a deadline of November 15^th.

 

The addition, potentially, of Anna Gomez to the FCC shifts the dynamic of the FCC and probably gives the chairwoman a lot more leeway as to what the content of those rules are going to be. Public Knowledge, and even my former colleagues in the civil rights bar, have been in and I think they have been very persuasive advocates at the FCC. And I think some of the things that appear to be open questions may not be completely open. They may actually be decided. And I hope they've been decided in the very smart way that Harold has articulated. That gives a lot of shrift to constitutional law principles, and tries to avoid constitutional questions.

 

Even if one were able to satisfy constitutional questions or avoid them entirely, there's still the basic question that Seth identified aptly at the beginning of his remarks, which is, what is the actual authority of the FCC to act here? And will it overreach in adopting a report and order? That is my concern. I'm a former staffer of the General Counsel's Office at the FCC. I reviewed, probably, hundreds of rulemaking items, all with an eye to whether it creates legal risk. And what is that legal risk? There is legal risk here, completely, and overreach — just plain vanilla administrative law violations — if the FCC overreaches in what it's proposing to do here.

 

And I want to also acknowledge Harold's reference to Oliver Wendell Holmes and the adage about bad men. One of the things that I am concerned about for my company is the prospect of being labeled a company that has somehow engaged in intentional discrimination because we have not yet built in the order and at the speed with which the FCC or a complainant would like. And if statistical evidence, or the absence of some fact can be used as an inference of discrimination, no one wants to be in that space. And the enforcement bureau can wield a lot of power, in both its ability to fine, its ability to issue NALs, or its ability to settle and actually dictate the way that broadband companies build out their networks, allocate their capital, and make deployment decisions.

 

You want to make this complaint go away? I'll tell you what, just give these people a 5G tower. You know, just give them some fiber backhaul here. Let's make this all go away. And the way you get to that leverage situation is by the threat of being labeled with a scarlet letter, as a company that has engaged in intentional discrimination, the evidence of which, the proof of which is that you have not deployed or upgraded your network in this particular area. And that is troubling, I imagine, for all ISPs, and, reputationally, certainly, for a company like ours that really prides itself on having ubiquitous affordable service to every community that we can connect to.

 

Randolph J. May:  Thank you, Clint. I think it was Harold, I believe, that referred to maybe employing a "totality of the circumstances" test. And when Harold did that, I was thinking about -- and Seth will probably have this in mind. Maybe it was Justice Scalia, I think, in one of the cases, who was quite dismissive, I forget. It was a different context, of course. But he said something to the effect of, "It's that whole totality of the circumstances test, which can be problematic sometimes." At least in some contexts.

 

There's one question in the Q&A. And we've got 10 minutes left before the program ends. So, if there are other questions, feel free, audience members, to put them up in the Q&A. I think we've really covered a lot of ground. We could spend a lot more time on this, and, who knows, before the November deadline, maybe we'll do it again. One thing that came to mind in the discussion about the Supreme Court and the Commission's authority: in the last two or three days, I've actually tuned in to two different Teleforums at which Chris Wright, a former FCC general counsel, has been on the panel. And these events have concerned the Commission's authority, especially with respect to the major questions doctrine. And, again, that may be a subject for another day here.

 

But one thing that Chris said really struck home with me. And you guys may have heard him say this. He said, "It's quite natural, and pretty much routine, for the Commission, with everything they do, to tout the action, no matter how moderate it might be, as the most important thing since the invention of sliced bread." And a lot of that comes through in the statements and news releases and whatever. But if you're sitting in the general counsel's office now, you might want to tell the commissioners "Don't make everything into a major question if it's not already obviously one." But this might, actually, in my view, possibly be one. But let's put that aside.

 

Okay, I'm going to hit this Q&A button. And, in the meantime, I'll probably have another question, if we end up having time. And I'm not sure it's on point, but it's an important question that's being asked, I think. And it's relevant, in my view, to bring it up. This question goes like this, "Many government and business websites are not accessible to disabled persons who use assistive technologies. This is probably not intentional. It is a design issue. Does this lack of access to government and commerce not constitute an inequity?" To me, it's always important when you're talking about issues like this, of accessibility. I'm not sure whether the statute is intended to get to that. But, certainly, it's important to the FCC. So, you guys have a lot of expertise. Who wants to answer that question?

 

Clint Odom:  I saw the question. I'll take a crack at it. And this may not be precisely the answer, but it struck a chord with me. When I served as a legal adviser to Chairman Kennard, one of the last items that we worked on was an audio description item. It was also an accessibility issue. And the FCC took remnants of its authority in lots of different ways and cobbled it together and imposed on MVPDs and even movie producers the obligation to inject, into all of its films and all of its video, an audio description requirement. That is to say, if there's a moment where there's no words being uttered on the screen, you would have a narrator who would come along and say, "A tear rolls slowly down the person's face," or, "A sunset rising over the mountains."

 

Very important, from an accessibility standpoint. Everyone thought it was a wonderful idea. We've got to do it. Then-Commissioner Powell said, "All of the above, except the FCC just does not have the authority to do it. And there's no amount of cobbling disparate pieces of authority together to make the point to do this." And it must have seemed harsh at the time for him to dissent on an item that was so popular and was so important to make sure that the visually impaired or blind community could participate in the same way that everyone else did, in video.

 

And it turns out, on appeal, the D.C. Circuit sent the rules back and said, "This is a noble idea, but you just don't have the authority to do it." Years later, led by, I believe, now-Senator Markey, they created a law to address this specific problem. And Congress passed it. The president signed it. And the FCC put it into law. There are lots of very well-intended, important things that the FCC can do with its authority, and certain things that it can't do, and it will sometimes overreach in trying to do, because it's the right thing, or it’s a good thing.

 

And I think that's a cautionary tale for what's going on here. The FCC has always had authority to be able to go after a lot of the types of discrimination that are being described in IIJA. Whether it has the authority to do some things that it is being urged to do could set back the cause for many years, while Congress has to go and actually write and pass a law that does what the FCC tried to do unsuccessfully, under its own authority.

 

Randolph J. May:  Thank you, Clint. Okay, there's another question. It's possibly more of a statement. But, because it concerns another group of persons that the FCC and others always have a concern about, I think it's worth at least stating that. And I'll see whether there's any reaction. The statement is, "Although tribal members are part of the protected class, tribes are sovereign nations and should be identified separately in discrimination action, and the FCC should require consultation with tribes on spectrum." I don't know whether someone has a reaction.

 

Harold Feld:  I'll take that, because Public Knowledge has been a very strong advocate of this. We have advocated that, yes, tribes are sovereign. We have proposed mechanisms by which tribes could gain access to federal spectrum, under existing law. We have suggested that this is part of the national spectrum strategy. We iterated those comments here in the question, in this proceeding, on the grounds of facilitating equal access. We have raised it in other spectrum proceedings where the FCC now, to Chairwoman Rosenworcel's credit, has asked, in what have been traditionally viewed as technical proceedings, how these things will impact digital equity and inclusion, which I think is a very important recognition that spectrum and other technical policies have huge impacts. So, I'm in agreement.

 

 I'll also note that there is now an outstanding memorandum of understanding with the Department of the Interior, NTIA and the FCC, with regard to working with tribes on spectrum access on tribal land. So, I think, agree, and it's feasible under existing law. And whether it's under this proceeding or under other authorities, we should move forward.

 

Randolph J. May:  Good. Thank you, Harold. I'm glad we did get those two questions, because I think they added context to this discussion we're having, just in a general way. So, I think it ought to be evident to our audience, and everyone who's going to have a chance to see this, that there really are major questions. And whoops, I better be careful about using that term here. There are important questions in this proceeding that someone later may argue are major questions in a legal context.

 

But we all agree they're important, because, as I said at the beginning, I didn't have any doubt, and don't, that all of the panelists support the ultimate goal of making equal access available to everyone. There are questions about how you get there. And that's what we've been exploring today. So, our time is up. And I just want to close by thanking, once more, Clint Odom, Harold Feld, and Seth Cooper. It was a terrific discussion, for sure. And I'm going to turn it back to Jack Derwin now.

 

Jack Derwin: Thank you very much, Randy. And I'll echo your thanks to the rest of the panelists, as well. That was a great discussion. And thank you to our audience for tuning into today's event. Check out our website, fedsoc.org, or follow us on all the major social media platforms at FedSoc to stay up to date. With that, we are adjourned. Thank you.