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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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