"Digital Discrimination" Under the Infrastructure Investment and Jobs Act

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The 2021 Infrastructure Investment and Jobs Act requires the Federal Communications Commission and the Department of Justice to "ensure that Federal policies promote equal access to robust broadband internet access service by prohibiting deployment discrimination."

Watch this discussion on the FCC's ongoing efforts to effectuate this portion of the statute and how policymakers can best achieve the goal of equitable broadband deployment. The discussion considered what discrimination means in this context, whether broadband providers engage in it, and what regulatory actions would best ensure Americans have access to the broadband they need.


  • Diana Eisner, Vice President, Policy & Advocacy, USTelecom
  • Jenna Leventoff, Senior Policy Counsel, Public Knowledge
  • Crystal Tully, Deputy Staff Director, United States Senate Committee on Commerce, Science & Transportation
  • Sanford Williams, Special Advisor to Chairwoman Rosenworcel and Deputy Managing Director, The Office of the Managing Director, Federal Communications Commission
  • Moderator: Joe Kane, Director of Broadband and Spectrum Policy, Information Technology and Innovation Foundation



As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

[Music and Narration]


Jack Derwin:  Hello and welcome to this Federalist Society virtual event. My name is Jack Derwin, and I’m Associate Director of Practice Groups here at The Federalist Society. Today, we’re excited to host a panel discussion titled “Digital Discrimination” Under the Infrastructure Investment and Jobs Act. Joining us today is a stellar panel of communications law experts. In the interests of time, we’ll keep intros brief, but you can view our speaker’s full bios at fedsoc.org.


Our moderator today, Joe Kane, is Director of Broadband and Spectrum Policy at the Information, Technology, and Innovation Foundation. Previously, he was a technology policy fellow at the R Street Institute and a graduate research fellow at the Mercatus Center. After discussion between our panelists, we’ll go to audience Q&A as time allows, so please enter any questions into the Q&A function at the bottom right of your Zoom window. Finally, I’ll note that, as always, all expressions of opinion on today’s program are those of the speakers joining us today. With that, Joe, the floor is yours.


Joe Kane:  Thanks, Jack, and thanks to the Telecommunications and Electronic Media Practice Group for putting on this event. The FCC is currently in the process of implementing the digital discrimination provisions of the Infrastructure Investment and Jobs Act. In part, that act requires the FCC to adopt final rules to facilitate equal access to broadband internet access service taking into account the issues of technical and economic feasibility presented by that objective, including preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin. The term “equal access” is defined in the statute, and it means the equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area of comparable terms and conditions.


So all of that is quite a mouthful and not necessarily crystal clear. And, so, as the FCC is in the process of determining how it should implement this portion of the IIJA, it’s appropriate that we have this expert panel to explain it to us. As Jack said, their fuller bios are all on the website, so I’ll just give quick introductions here. We have Diana Eisner, who’s the Vice President of Policy and Advocacy at USTelecom; Jenna Leventoff, who is Senior Policy Counsel at Public Knowledge; Crystal Tully, who is Deputy Staff Director of the Senate’s Commerce Committee, and Sanford Williams, who is Special Advisor to FCC Chairwoman Rosenworcel and Deputy Managing Director at the FCC.


And, so, to start it off, I just want to start with we have this statute that says the FCC has to adopt rules to facilitate equal access, and that includes preventing digital discrimination. And, while equal access has definition that I elicited there in the statute, I don’t think digital discrimination actually has it’s spelled out definition. So there’s obviously a lot of history on what discrimination law is and how it works. So I wanted to start by just asking the panelists, what does the IJAA mean by digital discrimination, and how is that similar or different to other definitions of discrimination in other areas of law? And maybe for this we can start with Crystal, since Congress is the one who wrote this.


Crystal Tully:  Sure. Yeah, I’m happy to. So I guess we came at this -- we hear a lot of issues with broadband deployment all the time from different groups, especially in places like Mississippi, where there are a lot of areas that are economically hard to serve, rural areas—even urban areas sometimes. We hear these issues all the time, and we were kind of looking to figure out if there actually is a problem, if it does exist, if there’s an issue of digital discrimination, if certain communities are not being served for a certain purpose. So we thought having the expert agency, the FCC, take a look at that, open it in a robust NOI, to ask these questions to hear from the people that are in these communities and the companies that serve them, if there’s a problem at all.


So we worked on this language together with our Democratic counterparts, and Senator Wicker supported the IJAA when it was up for a vote. So it’s kind of now in the hands of the FCC, and we’re very curious and very happy that the NOI has opened to hear what the public has to say. In terms of other definitions of digital discrimination or just discrimination generally, we were more just looking at factors that are generally considered under discrimination. I’m not an expert in other areas of discrimination, but we wanted to include—enumerate—some of these characteristics so we have kind of a fulsome study at the FCC before rulemaking happens.


Joe Kane:  Yeah. That’s great. Sanford, can you go to you? Does that jive with how you guys are thinking about it?


Sanford Williams:  First, thank you for having me. I appreciate the time, and great explanation, Crystal, about what Congress was thinking. Since I work with her in active proceeding, I can only say so much, but I do say that what Crystal said is very helpful. If you all know the answering, let us know because we’re working on it. We definitely are trying to figure it out. It’s interesting because the fact that there is digital discrimination or disparity—we know that exists—how we address it though is something we’re trying to work on. So we’ve had tons of comments coming in to try to help us come up with a definition, and we’re actively working on that. And I will leave it to some other panelists who can be more forthcoming about their assessment definition to talk about it. But I think Crystal laid the groundwork exactly right in terms of how we’re looking at it.


Joe Kane:  Yeah. So I’m sure there will be more. Who wants to be forthcoming next? Diana, want to go next?


Diane Eisner:  I’m happy to. So thank you, Sanford and Crystal. Those remarks were very helpful. And I firmly believe, as does USTelecom, that digital discrimination requires intent. The statute directs the Commission to adopt rules to prevent digital discrimination based on specified criteria. And this type of language, based on Supreme Court precedent, refers to mindset and doesn’t encompass disparate impact liability. By contrast, Title VII, the ADA, and the FHA, which all have disparate impact, refer to the consequence, not just the mindset. So we are hoping for an intent-based standard because we think that is consistent with congressional intent and also good policy.


Joe Kane:  And, Jenna, how does that sound to you?


Jenna Leventoff:  Yeah. I think that digital discrimination -- it’s worth noting that digital discrimination means digital redlining. That was changed in IIJA because, I presume, provider perception of the phrase redlining and the historical context of that word. But, ultimately, what we’re talking about here is digital redlining. So it’s when providers are investing less in low-income communities or marginalized communities. The end. And how we see that play out is when a wealthier area has a fiber broadband service and a lower income or marginalized community will have DSL, and they both pay the same price for it. And I think it's also worth noting that because of this expanded definition of digital discrimination there’s also an adoption component here. I think this expanded language allows the Commission to also look at the reasons why people don’t have broadband, be it that they can’t afford it, that they don’t have a device, that they don’t have digital literacy skills. So I think both of those things come into play. But first and foremost, I mean, what was -- what I believe this legislation started off as was legislation to prevent digital redlining.


Diane Eisner:  And, Joe, if I could? So I think Jenna makes a very good point by saying that digital redlining was the term that we used before the IIJA for digital discrimination. And, when you think of redlining as that term has historically been used, it referred to banks and mortgage lenders intentionally not being in certain neighborhoods because of the demographics and choosing not to give loans to certain people. So I think this notion of redlining is very consistent with an intent-based standard.


Joe Kane:  Okay. Yeah, that’s an interesting way of putting it. If we could go sort of from that, what the issue is and however we define it, how prevalent is this in your -- I know there are differing views on this in the record, but just sort of laying out your all’s views on how prevalent of an issue is, and how do we measure it? How do we know where it’s happening, if at all? Diana, we can start with you again on that and go around.


Diane Eisner:  Sure. So I think Crystal really made an excellent point when she said this provision of the IIJA was intended by Congress to have the FCC find out if it is happening. Now, Congress does not seem to believe that it’s happening. I have not seen any evidence of it. I do not believe that digital discrimination is occurring. And I think that intentional discrimination should not be occurring. But I have not seen in the record of the FCC or elsewhere any evidence of it.


Joe Kane:  Okay. Crystal, can we go to you on that? Is that sort of the sense going on is that this was mostly trying to figure it out and not sort of an idea of, “Oh, there’s a problem here that we’re looking to fix”?


Crystal Tully:  Yeah, I mean, I think there’s certainly differing views on that. But I think, yes, we went in hearing there may be a problem. To Diana’s point, we haven’t been given any proof that this is happening, any very strong evidence in that direction. But the question needs to be asked, and it absolutely needs to be addressed if there is a problem. And that’s why we’re completely supportive of the FCC’s actions to open this in a way.


Joe Kane:  Okay. Yeah. And, Jenna, do you have a different take on that?


Jenna Leventoff:  Yes and no. I absolutely agree I think that part of what this law does is it asks the FCC to collect the data so that we know if this is happening or not. Right now, the FCC isn’t collecting data about the actual speeds customers get. It isn’t collecting data yet really about price, a lot of this data that we need to really be able to do that comparative analysis to know if marginalized communities are being discriminated against. At the same time, I think we have a lot of anecdotal evidence that this happening in cities across the country, that it’s happening in Cleveland and Dallas and Detroit and Oakland. I mean, there are studies that show this is happening, and there’s anecdotal evidence showing that this is happening.


I think the other thing that it’s worth noting is it’s going to be—and I think the FCC should have data about this and they should have a really robust complaint process—I do think it’s worth noting that, as a consumer, you’re not going to know if you’ve been discriminated against because, by definition, you need to know what’s happening to someone else, and that’s really challenging. So I think what we’re really going to need the FCC to do here is to start collecting that data to see what’s going on across the country and to really look into these complaints and not go above and beyond what that individual consumer is saying.


Joe Kane:  Okay, could I just ask what kind of data -- or, I guess, what kind of data collection process you’re thinking of in terms of -- is that what the NOI process is, or you’re thinking of something that’s after the NOI -- maybe the FCC says, “Hey, we need to start a process to figure this out.”


Jenna Leventoff:  Absolutely after the NOI. I think the NOI is the FCC—and Sanford can correct me yet—is the FCC trying to get its bearings around an extremely complex issue, its information from stakeholders like PK, like USTelecom? It’s not collecting factual data about where broadband is and isn’t—which some of that is happening through the Broadband Data Act, some of it’s not—what that quality of service is, how much it costs, and what the demographics are of the people in those communities. So I think it really needs a concrete data collection.


Sanford Williams:  I’ll jump in and add that the demo wise doesn’t start another process. We have reply comments and comments come in. Comments were due in May, I think, reply comments in June. So we have a robust record. Then we’ll go forward. To answer your overarching question, I will say I think -- I don’t think anyone will argue that there is a lack of equity, disparity, between folks’ access to digital resources. And that’s something we see anecdotally throughout the pandemic when we talk about the homework gap, telehealth, or other issues. And it’s something that we concretely, I think, need data on to point to because anecdotal stories are real—and we can point to those—but having the data will help. What that data looks like can quite -- we’ll get into and we’ll use going forward. But we definitely know that we need data to inform us. Because it’s great to have anecdotal evidence but, unless you have actual data to point to, it’s kind of hard to justify or ground any rules going forward.


So one thing we do need also—and some of these books have been very helpful with—is as much information as possible. Every stakeholder that can help us out and give us information to help us move forward is very useful to us because we don’t know it all. And the more information we have and we can gather, the better off we’ll be, and the better our decision making will be going forward.


Joe Kane:  Yeah. Can I just ask what kind of confidence do you have in the FCC’s ability to do that data collection because I know it’s been -- or just deployment data in general, that’s kind of been an ongoing issue, and this’ll be maybe even more detail from what Jenna’s suggesting. What are your thoughts on that?


Sanford Williams:  Well, if you’re asking me, I have a hundred percent confidence in my colleagues.


Joe Kane:  All right.


Sanford Williams:  But the practical matter, I mean, just to be totally honest and candid, we need to -- I mean, as a society, not just the Commission, and have a better way of measuring where broadband is offered, who has access to it, who doesn’t, and then going forward. So I think that we as a society generally, not just the FCC, need to a better job of picking out where the holes are, what’s being offered, and what’s not being offered. So I have complete confidence that we'll do the best that we can with the resources we have, the wonderful colleagues that I work with. But we do need more information. And, hopefully, going forward, we’ll be able to glean that from all the sources we were trying to connect with to get that information.


Diane Eisner:  And I do think a critical part about to piggyback on what Jenna said is the broadband data collection maps, which have been four years in the making since USTelecom started the pilot four years ago in what is now the fabric. Because we all know 477 data is very limited. It’s over-representative. It’s under-representative. And the BDC data will really let us see where service is available and at what speeds, and I think that will really be the critical first step in getting those maps right. And getting them done is going to be really huge for this process.


Crystal Tully:  I just have to put a plug in, of course. Totally agree, broadband data acts will hopefully be helpful to eliminate some of these issues. Putting the intent portion of it aside, things that we can fix by just knowing where services is and isn’t.


Joe Kane:  Yeah. So sort of picking up on that, knowing where service is and isn’t is one part of this, but I wonder—I think Jenna mentioned this as well—that there’s also adoption issues here. And, so, the way that we talk about digital discrimination often comes across as though we’re going to find out if the ISPs are discriminating and then do something about it. But if it’s adoption issues or lack of interest or something like that, that’s not really anything that we can fix by going after ISPs themselves. So I wonder how you think about -- what are the different factors at play here, and how do you think about how that impacts what we do about any sort of disparate impacts that we find?


Diane Eisner:  Go ahead, Crystal.


Crystal Tully:  I just wanted to just point out that community outreach and affordability programs are important. I believe there’s $14 billion for affordability in IIJA. So I think that’s a good start to kind of closing that gap. If it’s an affordability for hardware or other issues that it’s a good place to start.


Diane Eisner:  Well, and I think, Joe, to your point, looking at the digital discrimination question through what is really the Commission’s task, which is facilitating equal access. The Commission is directed to facilitate equal access, which includes preventing digital discrimination. And facilitating equal access means ensuring that everyone has connectivity and the means to connect, the methods, not just that broadband is available. And I think we will see that a lot of this is adoption—adoption because, as you has said, lack of interest. Adoptions issues because of prices, adoption issues because they just don’t have a laptop available. So I think all of this money that’s out there for digital equity over at NTIA and the 14.2 billion for ACP is all going to be very critical to that issue. And I think letting that money work and seeing what it can do is also going to be a very important piece of this.


Jenna Leventoff:  I have to add to that. I mean, I think it’s amazing we have more than $14 billion for a $30-a-month broadband subsidy. We have a couple of billion dollars for digital equity, which states can use for devices or for digital literacy. It is not even remotely close to enough money to have universal broadband adoption. I think I heard from a provider yesterday that the ACP could be out of money by 2024. That’s not even hitting the five years that we thought it would, right? So it’s not too early to start thinking about how we’re going to fund these subsidies again. They’ve proved really popular. More than 13 million people have signed up for the ACP already, and that’s before we’ve even started some of the outreach programs that the FCC is working on.


But we don’t have even close to enough money for devices. I think what we see in a lot of low-income communities is that they share one computer amongst their entire household. And I can be on my soapbox forever that your average household probably has -- each person has their own phone, their own computer, their own tablet, a smart fridge, whatever the case may be. And we’re asking low-income families to have to share one device, which obviously makes it impossible to have multiple people doing something online. And, so, I think we need to start subsidizing devices, and we need to really put a focus on digital literacy. But I do want to say that there is an ISP component here because I think, if broadband is too expensive for millions of consumers across the country, maybe we need to have more competition in the broadband marketplace. I think that that’s contributing to the high prices of broadband. So I would love to see more focus on getting consumers a choice in who they can use as their broadband provider.


Diane Eisner:  So talking on pricing, I agree with a lot of what Jenna said. I think that standing up a program for more meaningful device subsidies and helping ensure the ACP becomes permanent are really important. And that’s part of why we’ve pushed for USF reform so that there is a more robust contributions base and more money to spread around for these types of initiatives. But we’ve seen in the past year historic levels of inflation. I think it’s at about 12 percent now in the past year. Broadband is one of the only goods and services where prices are falling counter to inflation. And, while competition is part of that, it’s because of the ability to deliver fiber, which is less costly to maintain than copper, and also just providers with good business models. So I think that, while prices may seem high to some, prices are actually much lower than they were when you look at the value and when you look at year-over-year inflation. And, again, the price of eggs has gone up exponentially. The price of broadband has gone down.


Sanford Williams:  Americans have [inaudible 20:24], you mentioned the $14.2 billion from Congress, which has helped immensely in terms of the ACP and making a dent in helping folks. But Jenna brings up a good point, and Diana and Crystal alluded to it as well, I mean, we need to do more. And this is not just an FCC thing. It’s a society thing. We definitely have our role to play obviously in digital discrimination and the NOI and NPI and whatever comes after that. But I think that we have to realize that this is something that affects all of us. And I think that, if we realize that, we can more quickly work together. I think a lot of times issues are partisan. But this is an issue that affects everybody. So we have made a great start, but hopefully we can use all our resources and great thoughts that folks have, like the folks here today, to try to get to the best resolution we can and not be content with saying, “Okay, we did something, and we’re good.”


Joe Kane:  Yeah. I think this is a really interesting discussion because it does seem like there’s all these different broadband programs going on right now and money flying this way and that and how we’re going to fund each one of them, sort of disagreements back and forth there. But to sort of bring that back into the discussion of digital discrimination, does that sort of -- how does that interplay work if we end up with -- we have a lot of programs that are trying to address the problems that maybe are attributed to digital discrimination. So is it going to be if we collect all this data and then it’s out of date immediately? How do we suss out the larger trends that may or may not be there about discrimination?


Jenna Leventoff:  So I think that a lot of these programs really come into play with the legislation. So the legislation says that providers don’t have to provide equal access so far as economically feasible. But what comes into play here in deciding if an area is economically feasible to serve is the fact that people that once had no money to put towards broadband now have $30 a month to put towards broadband—the fact that providers now can get billions of dollars of subsidies to deploy broadband into areas that don’t have it that are probably more expensive to serve. So I think a lot of these programs are really making it easier for us to see that’s not true anymore. Maybe at one point this area wasn’t economical to serve, but now it is.


Joe Kane:  So you’re basically saying this is going to highlight if there’s discrimination going on and sort of removing any excuses in many ways there. I wonder if that sort of dovetails into I know there’s been discussion this proceeding about looking at retroactive conduct versus future conduct. Does that sort of play in there as you’re looking at, “Well, now that money’s there, we can sort of make a clear determination of what’s going on,” or just anyone have thoughts about the retroactive versus proactive rules?


Diane Eisner:  So I think retroactivity is a very important piece of us. And the Supreme Court precedent is very clear that rules cannot be retroactive. They’re promulgated by an agency without explicit congressional authorization, and there is none here. So I don’t really know if there’s any room for dispute about retroactivity. But to your point about how this data interplays with all of the money, I think it’s really important to look at—and Jenna alluded to this—look at this provision through the entire lens of the Infrastructure Act. There’s all this money that is going out for broadband, and, yet, that’s not even looking at ARPA and Capital Projects Fund, which is another 350 billion in ARPA that includes broadband, 10 billion just for broadband in Capital Projects.


And this money is hopefully, if it’s administered well, can go very far to closing the digital divide. And that really can’t be ignored in looking at this issue. And I think it's more important to facilitate equal access through positive policy changes to ensure that providers can deploy that unreasonable rights of waive fees for fiber are preempted and things of that nature so that providers can deploy. You can get the money out there and working. And then, after the money has been deployed, let’s figure out where there still are gaps and why. But first, really let this money do its job.


Joe Kane:  Anyone else have thoughts on that? Yeah, Crystal.


Crystal Tully:  I’d say I agree with that. I wholeheartedly agree with that. I think that we do -- we want to make sure we have accurate maps before deploying billions of dollars. We want to make sure it’s going to the right places, absolutely. But I do agree that Congress’s intent was not retroactive in my opinion, and I think we should be looking forward. So I agree with Diana.


Joe Kane:  Yeah. So to continue that look forward, let’s say we go through this whole process. We get to the point where we’re going to say, “Hey, we’ve made our determinations about where discrimination is and isn’t,” what then happens? What is the policy that the FCC can -- what sort of rules can they make? Is this going to be whack-a-mole enforcement actions or more far reaching regulations? What are we talking about here, or what would you envision, asking you to predict the future of it?


Diane Eisner:  So I think a carrot approach is going to be much more effective than a stick. I think there are a lot of policy labors that the Commission can use. First of all, we would support a rule which prohibits intentional discrimination. No one should be discriminated against because of their race or their income in obtaining broadband. But I think looking at how to close up gaps is going to be much more important than the FCC trying to look at every aspect of a provider’s network and determine if there is some difference between one community and another, which may have nothing to do with discrimination, but just there may be correlation.


I think certain things the Commission could do, such as determining if there’s an area that is not economically feasible to deploy to, hasn’t been deployed to even with all of this funding, and using the high-cost mechanism and USF to offer a dominant provider in the area a right of first refusal for a subsidy to deploy there. And I think subsidizing areas that are still not feasible to deploy to even after all of this money’s been exhausted is going to be a really critical piece of it because that’s how you make something economically feasible. And the statute has that very important caveat that economic and technological feasibility must be accounted for.


Jenna Leventoff:  I think that there’s a mixture of carrot and stick that needs to happen here, right? So, if a provider is taking millions or billions of dollars through one of the existing deployment programs and still not deploying evenly to all the areas in that service area, maybe we need to claw back those funds so that we can have another provider actually build out to where they say they were going to. So I think it’s a mixture. We certainly want to make it feasible to serve these communities, but I think we also need to recognize when bad behavior happens and not reward that with millions of dollars.


Diane Eisner:  And I agree providers should be held to their commitments to deploy. For example, in RDOF, any provider who took money for a certain census block has to deploy to every location in the census block, even if at auction they thought there were 50 and there ended up being 65. They have to deploy to all 65. So I agree that a provider who doesn’t abide by their commitments should have that money clawed back, but that to me is a different issue than discrimination.


Joe Kane:  Sanford, I won’t ask you to opine on what your agency’s going to do in the future.


Sanford Williams:  Thank you. It’s going to smile and say, “Thank you for the information, and I’ll take it under advisement.”


Joe Kane:  Very good. So I want to ask a little bit about the particular factors listed in this statute of, “You may not discriminate on the basis of these various things. I think a lot of them are pretty standard—race, ethnicity, color, religion, national origin. I feel like the income level one seems a little odd just in terms of how that dovetails with return on investment. Is that something that Congress is intending to say you can’t really consider that? What does that mean in practice, discrimination on the basis of income level?


Crystal Tully:  Well, I’d say that that was part of the negotiation to be able to pass the statute. From where we come from, we hear a lot from folks that are saying that, if there’s an area that happens to have low-income households, that area’s skipped over. And I guess what the FCC should be looking at is why is that. Why are they not offering service to those areas? Is it because they’ve surveyed the area and only 2 of 200 people are going to take it, or they’re skipping over it completely, which is more it goes to the intent side of things? I think that there’s a lot of great questions that are teed up in the NOI that will help suss out what’s intended by that.


Jenna Leventoff:  In my opinion, I think that’s the provision that really gives this legislation teeth. If we were to say providers don’t discriminate against African Americans, they would say, “Great, we’re not. We’re just discriminating against poor people.” And, so, for the first time, this is one of the one first pieces of discrimination legislation to include income, and I think that’s incredible. Because on a bipartisan basis, Congress did say, “You need to look at this. Income is a proxy for race, and so no excuses anymore.”


Diane Eisner:  So I would like to make clear that providers are not discriminating based on -- against poor people. There is no evidence of that. I think that the important things to really think about—and this dovetails with technological and economic feasibility—is demand. Demand typically drives deployment. And, often times, I think correlation and causation are conflated. When you look, for example, at cities -- and I think the FCC really did industry a favor with the MTE order that came out about a year ago because there are a lot of issues for providers getting into certain buildings in cities in particular because the landlord has a deal with another provider or the landlord just doesn’t want to provide access. Cities in general too—and I say this as DC resident—can be difficult in terms of deploying broadband. The permitting process can be difficult. The neighborhood association process can be difficult.


And these are all things that factor into technological and economic feasibility. And there may be a certain demographic in cities—cities may be comprised of one demographic over another more predominantly or a certain income level—that doesn’t mean that there is discrimination. And I think all of these things need to be looked at together, and income is one part of that. Income may be a factor for demand. It may not be. And I think that the ACP funding will certainly help with that. And I think to the extent that we can get some robust digital equity programs and digital literacy programs stood up at the FCC so that people know the benefits of internet and they have access to a laptop that those problems can be alleviated, and there will be more demand perhaps from certain communities where there wasn’t before.


Joe Kane:  I wonder if I could ask a little bit more about that ACP funding. The way that it is being spent now, I think the breakdown is that it’s predominantly being used for wireless services and devices. But I wonder how that plays into this idea—comparable speeds, capacities, latency—in this statute. Are we going to end up in a situation where we’d have to be judging different technologies against each other? And, if someone’s subscribing to satellite internet, that is discriminatory as compared to fiber or something along those lines. How does that play into this?


Diane Eisner:  So I think that’s where technological feasibility really comes into focus. And there are really good technologies out there now that there weren’t five years ago other than just wireline broadband. And, of course, fiber is the gold standard, but we’re going to see some really terrific 5G if it’s wireless deployments with all of the C-band that was won at auction in the past couple of years. And, for the person who lives with no neighbors for a mile at the top of a mountain in Montana, a 5G fixed wireless option is going to be the best technologically because getting the fiber up the mountain to the house isn’t going to be easy. It’s not going to make sense. And I know that Commissioner Carr has spoken about this. He took a recent trip to Alaska, and satellite is probably going to have some very good applications there given the terrain and given the remoteness of it. So I think that it all has to be looked at holistically, and there is no one-size-fits-all for broadband.


Joe Kane:  Jenna, what are your thoughts on that with regard to how that plays into discrimination? Is it sort of -- is that opening the door for maybe providers to say, “Oh, we don’t need to serve you because you have wireless,” or is that not a concern?


Jenna Leventoff:  I think it’s a really, really difficult question and one that I’m trying to wrap my head around still a little bit because I am weary of someone saying, “Oh, you have a mobile phone. That’s good enough,” but you don’t have a fixed wireless network available, so I can certainly see the benefits of comparing mobile to mobile and sort of fix to fix. But I think that’s also a component of the problem when people have these different technologies. If a low-income area only has DSL because a provider decided there’s maybe not enough paying customers there to make it worth upgrading to fiber—but they are elsewhere—I think that’s the problem. So I think the FCC has a really fun job ahead of it trying to figure these things out.


Joe Kane:  Yeah. Thanks for that. A reminder that you can use the Q&A function within Zoom to ask questions, and we just got a question in there, so I’m going to ask Howard Myer’s question here. He says, “The eGRID Program has been rife with fraud due to the complex application process, predatory vendors, and schools misappropriating the money. What, then, makes the government think that broadband for all will work?” Anyone have thoughts on that?


Sanford Williams:  Well, I guess I can jump in. I would take issue with the characterization that it’s rife with fraud. I think there are definitely issues. And I think with any huge program, it’s going to be -- there are going to be issues that occur. I do know that working with things, at least in the ACP at the moment, we try to follow GAO fraud framework and do the best we can to eliminate all possibilities of fraud and that we’re going forward doing that. But I do think that, overarchingly, that is a concern that any money that we get or taxpayer money we use to further these efforts make sure it all goes towards a purpose it’s intended for, and it’s not being used fraudulently. So I can say the FCC, we’re doing all that we can with all the resources that we have to try to make sure working with, again, the GAO fraud framework and other strictures to do what we can to make sure we minimize fraud, and we’re doing the best we can is what I can say. But good question, but I do think we’re doing our best to try to avoid it.


Crystal Tully:  I think our job in Congress, our obligation to oversee these programs and oversee the agencies that are administering is really important. I think it’s important to hold hearings and hear from the folks that are actually doing the groundwork and folks that are benefiting from the programs to make sure that we are reducing and eliminating waste fraud abuse the best we can.


Joe Kane:  All right. Thank you. So, yeah, to sort of look ahead maybe not as far in the future as before but just the more immediate term, what happens next in this proceeding? I know that there’s a, I think, a two-year deadline in the statute for when the rules have to be out. It seems like from what you panelists have been saying that maybe it’s going to take a little bit longer than that to get all the data collected in a way that we can have actionable rules out of it. So I guess, what sort of is the short-term timeline, and then how do we transition that into a long-term timeline to get final rules?


Sanford Williams:     Well, I guess I can start. We have a deadline of November 2023 to have rules out, and that’s the touchdown. That’s the goal. That’s the home run. That’s the end. So that’s what we’re aiming to comply with. And from there, between now and November 2023, we’ll be working on it and doing our best.


Joe Kane:  All right, Crystal, is there any other sort of congressional action brewing on this front, or is it mostly waiting on FCC to turn it and some work at this point?


Crystal Tully:  Yeah. I think that’s an accurate way to put it. Just to go back to the maps for a second, we’re waiting for the draft to come out, the draft maps to come out, and November was the last that we heard might be the timeline for that. And going through the challenge process and making sure we have those accurate maps to kind of compliment the other efforts to eliminate digital discrimination. So, yep, we’re sitting back watching now the FCC do its job, and we’ll be doing some oversight along the way to make sure that everything is implemented the most efficient way it can. Yeah. I think it’s a little bit premature to determine what kind of actions can be taken if we do find some kind of discrimination. But, as the other panelists point out, we do have levers we could pull, both the FCC and Congress, if there is evidence of discrimination.


Sanford Williams:  Some things I want to throw out here, which we haven’t mentioned I don’t believe, is that Congress also asked us in IIJA to look at model codes, state local rules. And I think sometimes in DC, we can kind of forget that there are applicable counties and states that do things as well. And we’re good, and we have a lot to say. But why the end all and be all? We don’t know at all by a long stretch. So having states and localities and all this work on this is another important part of this equation that we shouldn’t forget. The FCC and Congress, look, to be frank, we’re important, but we’re not the only ones engaged in solving these issues.


Joe Kane:  Yeah. I wonder if Diana, have you had any interactions on that state and local front, how providers are dealing with these things on a more local level?


Diane Eisner:  Well, I think the local aspect of it really comes back to this direction to facilitate equal access by removing barriers to deployment and incentivizing deployment. And I think state and local regulations, which streamline permitting, which make it easier for a provider to deploy, which assist providers in working with cities and working with building owners because, while I think the MTE rules are terrific, they’re still going to be some local coordination that’s needed to make sure that providers can get access to those buildings. And I think that’s really what we should be looking at. I also think state money is going to be very important. Some states have their own USF funds. Others have allocated money towards deploying broadband. So I think everyone really needs to work together to facilitate equal access, which really is closing the digital divide.


Joe Kane:  Yeah, that’s a good point. I want to go back to something that Jenna said too, which is another component of the IIJA, which is the complaint process, which the FCC has also spoke to set up a process for individual complaints. Any panelists have views? What is the role of that in this process? Is it sort of a parallel system, or do they all work in tandem? What do you think?


Diane Eisner:  So I think that the complaint process should be stood up in a very targeted way. I think individuals should be able to submit complaints, but I think that providers should not really be involved until the FCC determines that there is enough there to go to the provider. Especially because I think the way that this will be stood up is that members of the public could submit a complaint against a provider who hasn’t deployed in their area and say, “This provider isn’t in my area because they’re discriminating.” And I think the volume of it has the potential to get overwhelming. So I think being very targeted with which complaints the Commission decides to pursue and how is going to be very important because providers should really be focused on deploying broadband and not responding to every complaint that may come in.


Jenna Leventoff:  I think that the complaint process provides the FCC with a really good overview of what's happening. If they’re getting turns out multiple complaints from a small area—and those complaints might not say, “I’m being discriminated against;” they might just say, “I don’t have internet,” or, “My internet is slow”—that gives the FCC that 30,000-foot view that they need to really see what’s happening. And I think it’s really, really critical too that states and other nonprofit organizations contribute to this process as well because some of the people most able to see those patterns are digital navigators trying to help people get online or community-based organizations that know their communities or states or localities.


So I think it’s important that a complaint process accept complaints, not just from consumers, but from these other groups as well. And I think -- I hope that the FCC is going to have the resources it needs to investigate all of these complaints and take action on all of them. And I think it’s important that the FCC is transparent about the actions that it’s taking, looking into complaints. I think the public wants to know how these complaints are being resolved and they want to know that the Commission has taken a look at them.


Joe Kane:  Yeah, thank you. And then a final section of the statute here is also working with DOJ to prohibit deployment discrimination. I guess maybe Sanford if you have any update on that? I assume there’s ongoing discussions.


Sanford Williams:  Ongoing discussions, ongoing what we’re told to do, definitely doing that. And to jump back to the complaint issue, we did ask about that NOI, and we did receive a lot of helpful feedback and we are, again, looking at what we can do going forward. That is an important component of it, so I’m glad you mentioned that and something the books forget about sometimes. But the DOJ question, yeah, we’re doing what we’re asked to do.


Joe Kane:  Okay. Do other panelists have thoughts on what comes out of that? Is that going to be a prosecution machine for ISPs you don’t deploy places? Or how does that fit into the larger goals of the statute?


Diane Eisner:  I think that it will be an important mechanism when there is intentional discrimination, just as it was when there was redlining found with banks and mortgage lenders and back in—what was it—the ‘80s, I think, a lot of it was going on. So I think it’ll be a very important mechanism that way. I don’t think it should be a prosecution machine. But I think as an agency that is largely tasked with prosecution, that really should be their function, similar to what they do now in other areas of the law, that if you’re finding very problematic behavior, then that’s how it should be addressed.


Joe Kane:  Just out of my own curiosity, is this common for FCC rules to have sort of an in-tandem DOJ component to say, “If you break the rules, we’re going to bring the beds down on you”?


Diane Eisner:  Not that I really know of.


Joe Kane:  Okay.


Sanford Williams:  Yeah. I don’t want to say it’s common. I just would say that the way the IIJA was written, the times we’re in, a lot of things that hadn’t happened before have happened. So can’t say it’s common, but we were tasked to do it, and we follow our dictates from Congress and take it seriously.


Joe Kane:  All right. Sounds good. All right. Well, we’re reaching the end of my questions. Again, if there are any audience questions, we can take those. But, otherwise, I think we can ask -- I’ll ask all the panelists anything else that you would like to say on this topic, anything that maybe would be more helpful as the process is going on or something that you think people are missing in public discussions of this issue?


Jenna Leventoff:  I think from public knowledge’s perspective, we think that it’s extremely important that the FCC doesn’t just look to intent. I think the fact of the matter is is that, if people aren’t getting what they need and we have a national goal of closing the digital divide, it doesn’t matter what the intent is. I’m sympathetic to providers that don’t want to be held liable for something they didn’t intentionally do. But, if we’re looking out for the consumer, we need to take action against discrimination no matter why it is there. And whether that’s through a carrot or through a stick or through a combination of both, I’m of the mind that intent doesn’t matter. And, in other areas of discrimination, it doesn’t matter as well.


I think, if you look towards the history of discrimination, we see that, when there’s an intent standard, it’s not enforced. It’s extremely difficult to prove intent. You have to basically have a letter of someone saying, “I wanted to discriminate. I hate this person because of their race or ethnicity.” That is relatively uncommon, and yet we’re still seeing all of these communities that are complaining about discrimination and not having what their neighbors have. So I think that’s just from our perspective really important to call attention to is the fact that it doesn’t matter why this is happening. The fact of the matter is it’s happening, and we need to fix it.


Diane Eisner:  So I agree with Jenna that people should get what they need, especially when it comes to broadband. Broadband is a necessity. The past two and a half years have shown us that. USTelecom put out a report recently showing that in the past in 2021, providers deployed 86 billion of their own capital investing in broadband networks, and it’s a historic level of investment. Providers are really working hard to deploy, and I think we have to be very careful in this conversation to not equate a lack of access with discrimination. There are a lot of reasons an area might not have broadband or they might have DSL and not fiber. Many, many providers are working on overbuilding their DSL networks with fiber, but that takes time. And they do one area. Then they move onto the next. Nothing can happen all at once, and nothing can happen overnight.


And technology changes. What was state-of-the-art for let’s say CAF-II when that money was given out in 2015, that was a 10/1 standard DSL, and that was seen as the best at the time and the best that the provider should be deploying. Now that is considered woefully outdated. If you have 10/1, you’re not deemed to have access to broadband. So I think we need to be very mindful that deployment takes time and lacking to give it fiber does not mean that you’re being discriminated against. And I think that the conversation needs to be more geared in that direction so that they can be productive and that we can all be rowing in the same direction because I think we all have the same goal, which is ubiquitous broadband and everyone being able to participate in the economy, in telehealth, in education. And those things are going to happen by closing the digital divide.


Crystal Tully:  Yeah. I agree with that, Diana. I think it’s really important to differentiate between what is discrimination and what is lack of service for other factors. I think in Congress, especially for Senator Wicker, we’re looking forward to the maps being done so we can get a lot of this money out the door and that we can make sure we’re ensuring proper oversight and finally close the digital divide.


Sanford Williams:  Yeah. And I’ll say I love all the points. I mean, Jenna explicitly talked about the digital divide. Diana mentioned the fact that broadband should be ubiquitous and it’s a necessity. And I love what Crystal and the folks in Congress are doing in terms of having a bipartisan support for this issue. It’s something that affects all of it. I think, at the end of the day, what we want to do is make sure your zip code and where you live does not determine your digital destiny, that everyone has access equitably --  and in an equity fashion to broadband so they can live their lives and be present members of society.


Joe Kane:  Yeah. And I think that’s a good place to end it. I thank all the panelists for helping us better understand this issue. And I’m sure this whole -- this will not be the last conversation on this issue. We’ll definitely look with great interest for the development at the FCC and elsewhere. So, yeah, back to you, Jack.


Jack Derwin:  Thanks so much, Joe, and to the rest of our panelists for joining us today. And thank you to our audience for tuning into today’s virtual event. You can check out our website, fedsoc.org, or follow us on all the major social media platforms @fedsoc to stay up to date. With that, we are adjourned.