Statement by Isaac Schick of the American Consumer Institute (ACI)

The Federal Communications Commission (FCC) is set to vote on its proposed digital discrimination rules on November 15, 2023. The draft order and further notice of proposed rulemaking contain several areas of concern, including the use of a disparate impact standard which has been critiqued in the past for being overreaching and hampering broadband development with needless risk. Another area of overreach and needless risk introduction is the broad scope prescribed to the term “other quality of service metrics” found in 47 U.S. Code § 1754 on digital discrimination. According to this, “equal access” is defined by comparable “speeds, capacities, latency, and other quality of service metrics.” Interpreting the latter statement in exceptionally broad terms, Paragraph 102 of the draft order posits a list of 22 additional metrics including “pricing.”  

The overly broad interpretation of “other quality of service metrics” by the FCC is not backed up by the statutory writing of the law, as the phrase proceeds “speeds, capacities, latency” then the “other” metrics ought to be related to these explicitly forementioned characteristics.1 Few of the 22 new metrics have this similarity and metrics like “pricing” are understood as requiring explicit inclusion in the law by Congress if meant to be an applied metric. Congress did not use these explicit terms, thus inferring “pricing” and other metrics unrelated to the three preceding ones is an overstep in the FCC’s statutory authority.  

The “other” metrics also lack any “range or standard for comparing” which the order explicitly declines to establish in Paragraph 153. Without a way of comparing the many competing metrics of evaluation, compliance becomes nearly impossible. If businesses are to use this order as a guide to achieve the goal of reducing “digital discrimination” a concrete method for using these metrics must be established. In lieu of such a system for evaluation, metrics lack reasonable utility and non-arbitrary outcomes can not be reached.  

It is advisable that the “other quality of service metrics” be confined to what is statutorily permissible and not expanded to include items that ought to be expressly mentioned by Congress, such as “pricing.” As such, we find the draft rules to be unworkable and have the effect of deterring broadband investment. 

Isaac Schick is a policy analyst at the American Consumer Institute, a nonprofit education and research organization. For more information about the Institute, visit www.TheAmericanConsumer.Org or follow us on Twitter @ConsumerPal.