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Promoting Broadband Diversity Within the Law

November 24th, 2009 by Mark Lloyd - Associate General Counsel / Chief Diversity Officer

Mark LloydThis is the third in a four-part series of blogs on Diversity and Civil Rights Issues in Broadband Adoption and Access.  The full biographies of all participants can be found at

What is the federal government compelled to do, and what is it prohibited from doing to promote access and adoption for all Americans in the National Broadband plan?  That was the topic of the second panel in the workshop on Diversity and Civil Rights Issues in Broadband Access and Adoption.  As FCC Commission Michael Copps said in opening the panel, "This is where the rubber really hits the road."

The panel featured a range of lawyers and scholars wrestling with the thorny issue of federal action that might target those groups that do not have access to broadband or are not adopting broadband, while adhering to the constitutional mandate of equal protection for all Americans.  The panelists discussed the different legal review standards applied to racial and ethnic minorities as compared to Native Americans or the poor, the challenges in subsidizing religious groups, and what other federal agencies have done to address the different needs of distinct American communities.

Allen Hammond, a law professor at Santa Clara University, focused on the FCC's responsibility.  Relying on the preamble to the Communications Act, Sections 706 and 257 of the 1996 Telecommunications Act, and the American Recovery and Reinvestment Act of 2009, Professor Hammond argued that "the Commission is required to facilitate inclusive, non-discriminatory, affordable access to broadband in a reasonable and timely manner, and if access is not reasonable and timely, to take immediate action to accelerate deployment by removing barriers to investment and promoting competition." 

University of Pennsylvania Professor and former Chairperson of the U.S. Civil Rights Commission, Mary Frances Berry noted that "race is the bugbear in the room." According to Dr. Berry, to meet the judicial standard or review applied to race-conscious measures, also known as strict scrutiny, "What you've got to do is make sure that you prove that there is a compelling governmental interest and make sure that you show that you narrowly tailored whatever you do in this plan, and that you tried every alternative possible, that you are monitoring what you are going to do, and that whatever you're doing is of short duration."  Dr. Berry repeatedly emphasized the importance of "overwhelming evidence."  She ended on an encouraging note, saying that it was "possible for the FCC to develop a plan that will ensure success, meeting the needs of all our people and exercising the FCC's responsibility." 

Thomas Henderson, a long-time civil rights attorney, argued that the FCC "can act with an awareness of race . . .  so long as you're not classifying people or treating people differently."   However, he added, although "race-neutral remedies are sometimes disparaged and seen as not effective, there are lots of reasons to consider them thoroughly.  One, you can get a lot done through race-neutral means.  Secondly, they can be really useful in identifying where the real barriers are.  And the third thing is employing them and using them provides a very good basis for race-conscious actions if you need to take them."

David Honig, Executive Director of the Minority Media and Telecommunications Council, and chairperson of the Diversity Advisory subcommittee on constitutional issues, referred the FCC to the advisory committee recommendations to replace the current eligible entity designation with a program like those used in state university systems, also known as a full file review.  Honig proposed that an entity might be considered eligible for a credit if it has overcome a disadvantage.  "The overcoming of which is predictive of entrepreneurial success."  According to Honig, credit would be given to those who could demonstrate some social disadvantage, such as "disadvantages that derive from having experienced racial discrimination or gender discrimination or the various disabilities that, unfortunately, attend veterans' status or living in certain geographic areas or certain kinds of disabilities."  

Geoffrey Blackwell, of the Chickasaw Nation Industries, the National Congress of American Indians, and Native Public Media is also a member of the Diversity Advisory Committee.  He noted that Native Americans could also be considered in the proposed full file review program.  Blackwell noted that "the Commission has very good tools... developed over the last 10 years that it can draw upon" to increase broadband access and adoption on Tribal Lands, such as the Enhanced Tribal Lands Lifeline and Link-Up Program "that created significant rises in the telephone penetration rate in Indian Country."  According to Blackwell, because of the special status of sovereign Native American Tribes, strict scrutiny would not apply. 

Professor Mara Einstein of Queens College and the Stern School of Business at New York University argued that whatever policy the FCC considered needed to take into account the economic fundamentals of media in the U.S.  Dr. Einstein argued that it was especially important to recognize that "when it comes to revenue generation, new media looks exactly like old media, and this economic model is anathema to content diversity." 

She gave various examples of "why the market can't or rather won't solve the problem of the digital divide" as it relates to generating content that might spur adoption.   Dr. Einstein suggested that the government "fund and promote categories of content without specifying what exactly the content should be."

Henderson proposed that there were measures that the FCC could take now to advance diversity and equal opportunity in any National Broadband Plan that contemplates direct federal employment to advance either deployment or broadband service.  Specifically, Executive Order 11246 requires a federal contractor not to discriminate.  In addition, with respect to any federal contracts with private employers, Title VI of the Civil Rights Act provides that recipients of federal financial assistance are prohibited from discriminating. 

Henderson also suggested that the study conducted by the Department of Transportation would be a useful guide.  That study resulted in the Disadvantaged Business Enterprise Program.  A program upheld in the federal courts as being constitutional.

All the panelists agreed with the importance of gathering data to guide and support any regulatory action.  But they also noted that the FCC has to avoid its tendency to develop rules in silos without fully appreciating the impact of all its policies. As Professor Hammond put it, "You can't implement [diversity] policy without taking into account what you're doing in the rest of the regulatory space."

Professor Berry echoed Commissioner Robert McDowell's opening comments about the inevitability of litigation aimed at whatever rules the FCC eventually adopts, and urged the Commission to anticipate "who is likely to bring a legal attack, understand why would they bring it and what are they likely to argue, and to know how to repel them before they do it."

Understanding Broadband Needs in a Diverse America

November 5th, 2009 by Mark Lloyd - Associate General Counsel / Chief Diversity Officer

 We need much richer data on who does not have access to broadband and who is not adopting broadband and why.  The answers we have are not sufficient to help us craft an intelligent National Broadband Plan to promote advanced telecommunications services to all Americans.  We need more granular information.  This was the message of the first panel in the workshop on Broadband Access and Adoption on Diversity and Civil Rights Issues held at the FCC earlier this month. 

As FCC Consumer Research Director Dr. John Horrigan stated, several studies suggest that “broadband adoption in the United States stands at close to two-thirds of Americans.” But these studies are problematic on a number of fronts.  The first problem is that the studies assume that we already have a clear definition of broadband, when, as Santa Clara Law Professor Catherine Sandoval noted, not even the FCC has been reliable about the definition of broadband.  The definition of broadband is made even more complicated by the suggestion that some groups are adopting wireless broadband, when we do not have sufficient information about which applications are available to this rising group of wireless broadband users.   
Dr. Horrigan also noted that “education and income are the two strongest predictors of whether you have broadband at home.”  But education and income are not the only predictors.  Region, ethnicity, and other factors are also important.  As Rutgers Dean Jorge Schement said, “it's not just about money; there's something else going on that prevents people in the same income group from having the same levels of access to information technology.  Technology access is also dependent on aspects of ethnicity.” 
Jim Tobias, President of Inclusive Technologies, picked up this theme in his presentation  and argued that “People with disabilities are as diverse as any other population, even with respect to their disability.  The technological needs, the market behavior of people who are hard-of-hearing is different from those who are deaf, is different from those who are blind, who have low vision.”  Other panelists noted the vast differences among other population groups we treat as a block, including youth, the elderly, Native Americans, Asian Americans, and African Americans.   
Professor Sandoval also noted that research focused on the rural-urban divide needs to be more fine-tuned.  “Federal rules basically exclude areas that contain certain major cities.  If you went to an extremely rural places in central California, what you would see is people picking strawberries and other crops in the field, yet, because of their proximity to Fresno, they are not defined as rural, and, therefore, become ineligible for certain types of rural support.”  Mark Pruner, President of the Native American Broadband Association, noted that zip codes and census tract measurements have sometimes excluded Native American communities entirely. 
The themes of diversity and complexity were pressed repeatedly by the panel.  Panelists agreed about the need to be much more specific about technology applications and usability, and about the importance of research in the language of the non-adopting population. 
Professor Sandoval suggested that the research conducted by the California Emerging Technology Fund should serve as one model.  CETF has been conducting research in six different languages: English, Spanish, Chinese, Vietnamese, Hmong, and Korean.  One result is that they are better able to understand the vast differences among Asian Americans.  The adoption and access among the Hmong population and the Filipino population are much lower than other Asian American communities.  Understanding access and adoption in a nation as diverse at the U.S. requires research tools that better reflect that diversity.  And that means larger sample sizes, multi-language polls, and an increase in the number of face-to-face interviews. 
As Dean Schement said, “Disaggregating data does not mean that we see everybody's differences alone.  What it means is that we pay attention to nuances rather than lumping everybody together and trying to achieve one, big outcome.”   
The panelists also noted it was important to be sensitive to the different experiences with technology as we seek to understand adoption patters.  Tobias made the point that many people in the disability community develop a “technological pessimism,” because they have so often experienced interacting with technology that simply did not work for them or technology that was very expensive to adapt to their needs.  Tobias also said, “You don't see people with disabilities featured prominently in some of those glorious, glowing commercials about broadband and Internet access; it's always the on-the-go executive storming down the street or the kid Twittering on a skateboard.  People with disabilities are not featured there, and so they might think ‘it doesn't seem like this technology is for me.’”
Although this panel focused on the challenges of measuring an increasingly diverse nation, they all emphasized the importance of broadband service to all Americans.  Mark Pruner told the story of fellow Native Americans.  “Three people flew all the way from Barrow, Alaska, the very northern point in Alaska, [and it] took them 24 hours to get from there to Washington.  One of them [told] us about how Internet service is used there: it's satellite-based.  Sixty-five percent of the people in this remote native village use the Internet, and it's not a very high income area, but when they have to make a choice between having running water and having Internet service, they pick the Internet service.” 

This is the second of a four-part series on Diversity and Civil Rights Issues in Broadband Adoption.



Diversity, Civil Rights and the National Broadband Plan

October 29th, 2009 by Mark Lloyd - Associate General Counsel / Chief Diversity Officer

In the American Recovery and Reinvestment Act of 2009 Congress requires the FCC to submit a national broadband plan that seeks to “ensure that all people of the United States have access to broadband capability.”   Congress does not look for a plan that provides access to a majority of U.S. citizens, but to all people.  This is consistent with Section 706 of the 1996 Telecommunications Act, which instructed the FCC to regularly report to Congress on whether advanced telecommunications services (what we now call broadband) were being made available to all Americans in a timely fashion.  On October 2, the FCC conducted a day-long workshop that looked closely at what it would mean to craft a plan to extend broadband service to all Americans, regardless of age, gender, income, race, ethnicity, religion, political orientation, or disability.

As FCC Commissioner Robert McDowell put it in opening the day’s proceedings: “How are we going to be able to get these powerful technologies that can really improve the human condition so dramatically and so quickly – how do we get those resources into the hands of as many people as possible?” This is the first in a series of blogs on that day-long program focused on ensuring that the national broadband plan takes into account the rich diversity of our nation in accordance with equal rights under law. This first blog will address the overarching goal of the day and describe the blog entries to come.

All too often, it seems, words become political noise and cease to carry the meanings conveyed by the dictionary or intended by the user.  Perhaps the term “civil rights” and the word “diversity” have suffered this fate.  One goal of the October 2 workshop was to recapture and clarify those terms.

Diversity means diversity.  It is not a code word for minorities, or creating privileges for some specific group.   The panelists who generously gave of their time, and the staff members who created and managed the various platforms for the panelists to speak, represent the true meaning of the word diversity.  The concerns of the poor, of people of color, of different religious beliefs, of people with different physical and mental impairments, of immigrants and of Native Americans, of Republicans like Commissioner McDowell and Democrats like Commissioner Copps, all of this diversity was represented in the day’s discussion.

All Americans have civil rights.  Civil rights are not passé.  The struggle for civil rights, for equal rights under the law for all Americans, did not begin and end with Dr. Martin Luther King.  That struggle continues and involves the concerns of all Americans, of all colors and incomes and ages and genders and abilities and regions.  As Commissioner Michael Copps said at the start of the second panel, “Access to modern telecommunications is a civil right.”

The connection between equal rights under the law and broadband is not difficult to understand.  A struggling rancher in Idaho has a right to participate in the public debate equal to the right of the wealthy lobbyist living on Capitol Hill.  The migrant worker has a right to participate in the marketplace equal to the right of the Wall Street broker.  Whether it is civic discourse or economic activity, in today’s world the effective engagement in these activities requires access to broadband.  Whether the goal is public safety, education, health care or some other great national purpose, that purpose is either limited or expanded today through broadband.  The great hope for broadband is that it will improve the ability of all Americans to participate in the robust life of our nation.

The diversity of our nation, our different cultures and religions and languages and abilities, is one our great strengths. This diversity also requires the government to take special care to ensure that the needs of all Americans are reasonably addressed. Structural poverty, continuing segregation, unequal opportunities in education, and discrimination in financial markets can all have a profound affect on access to broadband and adoption rates. These challenges affect some groups differently than others. To meet the congressional requirement of making broadband service possible for all Americans, the FCC must recognize the different needs of a diverse America, while holding to the core American principle of equal treatment under the law.

Getting the advice of experts on these complex issues was the work of the day.  Responding to that advice in a national broadband plan will not be easy.

The first challenge, as Rutger’s Dean Jorge Schement noted, is to rethink “the metaphors we develop that cause us to understand policies or proposed policies.  We need new metaphors.”  The first problem is to better understand our diversity.  Dr. Schement described a rapidly changing population, a population that is becoming browner and speaking more languages, in the midst of a massive internal migration.  America is embracing more immigrants, not only from Mexico, but also from Germany and Southeast Asia.  But as Mark Pruner of the Native American Broadband Association points out, “American Samoa is better tracked by the FCC than … the 563 federally-recognized Native American tribes.”  Jim Tobias, an expert on the challenges faced by the disabled, adds that the population is also aging, joining an ever growing number of Americans who need help seeing and hearing.  Dr. Schement noted that the actual makeup of the American household is changing more rapidly than our conventional definition of the word is.  For example, many households are multi-generational, while others are made up of families without children.

Santa Clara Law Professor Catherine Sandoval makes the additional point that not only is the population diverse, but the new technologies we want to make available are diverse as well.  Professor Sandoval also notes that we have to be much more careful about the questions we ask in polls.  “If you ask somebody do you subscribe to broadband?  Well, the FCC is spending a lot of time trying to figure out what broadband is and how we should define it.  And, so, that question assumes that … the person knows what broadband is.”

As all the panelists throughout the day emphasized, we need much better data on who has access and to what, and who is choosing not to adopt broadband and why.  That was the focus of the first panel, and it will also be the focus of the next blog.  The second panel was a very rich discussion of what the government can do, mindful of equal protection law, to extend broadband to a diverse nation.  The third blog will describe that discussion.  And the third and final panel examined best practices in encouraging access and adoption to a diverse nation.  The fourth blog will report on best practices.

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