Stuart Brotman

According to the 2022 federal Infrastructure Investment and Jobs Act, "digital discrimination" involves determining who gets broadband access “based on income level, race, ethnicity, religion or national origin.” As an example, some neighborhoods in cities get faster broadband speeds than those in poorer neighborhoods, creating a two-tiered effect. Nationally, the Federal Communications Commission has been empowered by Congress to handle digital discrimination complaints, which provides some remedy for those who find themselves on this new wrong side of the digital divide.

COVID-19 has had a profound impact on the central role of digital media in our everyday lives. We now are in a historic transition, from a nation organized for a pandemic response to a recovery that surely will create a “new normal.” So it’s timely and important to look back at how digital media has been shaped during this period, and more importantly, to assess what lies ahead, based on current data and trends. This post-pandemic new normal, however defined, will not be binary.

Among the key provisions of the trillion-dollar Infrastructure Investment and Jobs Act signed into law by President Joe Biden is $65 billion that will be dedicated to improving access to reliable high-speed internet. This new law aimed at closing the digital divide also should be used to close the digital privacy divide — the gap between more personal information being stored and shared and the level of privacy protection for online users that is provided to them.

Over 20 years ago, the US Supreme Court unanimously decided Reno v. American CivilLiberties Union (ACLU), which found the communications decency provisions of the Telecommunications Act of 1996 to be unconstitutional. Applying a strict scrutiny judicial review standard under the First Amendment, the Supreme Court concluded that unlike broadcasting (where the FCC’s “indecency” content regulation consistently has been upheld due to the unique characteristics of that medium), no government regulation would be constitutionally permissible—even for online child protection.

[Commentary] Eight years ago today, the US National Broadband Plan was released, as mandated by a law that received bipartisan support in Congress. That plan is rooted in a critical understanding of ongoing, dynamic forces that continue to shape what is commonly known as the broadband internet ecosystem. Its three pillars — broadband applications/content, devices, and networks — are essential parts that need to work seamlessly together so that all of us can experience the full benefits of the Internet in every aspect of our daily lives.

This updated analysis revisits the pioneering research approach first developed in 2010, which highlights countries that are leading on a global basis in their deployment and use of broadband applications and content; devices; and networks. In 2018, these top-tier countries are China, the United States, Germany, the United Kingdom, and Canada (listed by population size).

[Commentary] Yet before the partisan noise over network neutrality rises to the level of screeching decibels, it might be useful to provide some much-needed context. During the past two years, as the original Title II Order proceeding moved ahead, I wrote a series of pieces for Brookings’s TechTank that touch on issues that have as much relevance now as they did when first released. Published collectively here for the first time, I hope they will be considered in real time by policy advocates of all stripes, along with the FCC itself, as positions are formulated and final new internet service rules are adopted that will have long-term consequences.

The North American Free Trade Agreement (NAFTA) with Canada and Mexico is expected to be at the top of the list for renegotiation under the Trump Administration. The treaty’s telecommunications provisions include a “bill of rights” for providers and users of telecommunications services that cover access to public telecommunications services; connection to private lines that reflect economic costs and availability of flat-rate pricing; and the right to choose, purchase, or lease terminal equipment best suited to their needs. These free-market principles reflect American values.

Barriers such as international roaming rates for mobile calls, restrictions on cross-border transfer of digital information (such as electronic payments and digital signatures), and the forced localization of data centers have a detrimental impact on American companies. Consequently, the Trump Administration would be well-advised to advocate for a broader bill of rights that adheres to the notion of freedom of choice. It should uphold the ability of US companies to offer their world-class information services in Canada and Mexico. Such a position may be easier to gain in a renegotiated agreement since the other items on the NAFTA version 2.0 agenda (e.g., tariffs) undoubtedly will receive greater scrutiny and are likely to be far more contentious.

For the first time in 25 years, Congress conducted hearings in Feb to reauthorize the National Telecommunications and Information Administration (NTIA). This Department of Commerce agency is tasked with advising the president on matters related to telecommunications and information policy. Consequently, its influence reaches the White House, either directly or through its sub-cabinet reporting structure. This makes NTIA a unique agency with two masters, able to speak on behalf of the executive branch or even the president himself under appropriate circumstances.

NTIA’s current budget appropriation is $39.5 million. This represents the tremendous bang for the buck that NTIA has delivered, as illustrated by these examples spanning several decades. The vital role that telecommunications and information plays in job creation and economic growth makes an easy case for why the agency should continue to receive sufficient financial resources. Equally important, the Trump Administration’s to-be-named NTIA Administrator should bring a zeal for keeping the agency both relevant to our times and important to the President’s own policy initiatives.

One unreported item regarding President Trump’s nominee for the US Supreme Court, Judge Neil Gorsuch of the US Court of Appeals for the Tenth Circuit, is that he would bring more private practice exposure to telecommunications law to the court than anyone in history. Judge Gorsuch spent a decade at one of DC’s premier law firms, Kellogg, Huber, Hansen, Todd, Evans & Figel PLLC. According to Vault, a reference source that profiles leading law firms, Kellogg Huber Hansen has “a particular depth of experience in the telecommunications industry, representing companies like Verizon and AT&T in both court litigation and dealings with the FCC.” This environment, which Gorsuch experienced daily as a practitioner, likely helped shape his view regarding the power of the Federal Communications Commission (FCC) and other federal agencies involved in regulatory decisionmaking.

At least as far as judicial review of FCC and other agency matters, Gorsuch clearly represents a philosophy that is more skeptical of regulatory overreach and more deferential to Congress. This may send a mixed message for political conservatives who are supporting his nomination—less regulatory intrusion, but perhaps a more activist judiciary. For political liberals, Judge Gorsuch’s assertion of a more powerful role for courts might inspire greater confidence that he would check executive authority by the Trump administration and its successors during what may be his very long tenure on the Supreme Court.