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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 http://www.broadband.gov/docs/ws_diversity/ws_diversity.doc.

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."

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