FCC Seen Favoring Intent-Based Digital Discrimination Standard
The FCC appears to be leaning toward an intent-based or disparate treatment standard, rather than one focusing on disparate impact, as it crafts rules barring digital discrimination, said Robert McDowell of Cooley Monday at an International Center for Law &…
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Economics (ICLE) panel. Language in the NPRM adopted in December (see 2212210054) indicating it might not always be technically or economically feasible to provide service to someone seems to be proposing an implied safe harbor, said the former FCC commissioner. However, the agency's proposed language doesn't fall neatly within the definition of disparate treatment versus impact as laid out in federal court precedent, he said. ICLE Senior Scholar Eric Fruits said the addition of income as a protected class in the NPRM creates an "income conundrum." Even if a provider went out of its way to not consider income in deployment, other factors like educational attainment, population density and race highly correlate with income, he said. That means it's possible to find discrimination even if an IPS is explicitly trying to avoid it, he said, and an intent-based standard makes most sense for defining digital discrimination. A standard based on disparate impacts could lead to false positives, he said.