February 21, 2023

Marlene H. Dortch, Secretary

Federal Communications Commission

Office of the Secretary

45 L Street NE

Washington, DC 20554

Filed via ECFS

RE: Implementing the Infrastructure Investment and Jobs Act (IIJA): Prevention and Elimination of Digital Discrimination, GN Docket No. 22-69

On behalf of the American Foundation for the Blind (AFB), we thank the Commission for the opportunity to respond to the Notice of Proposed Rulemaking on Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination. AFB is a national nonprofit that advocates for a world of no limits for people who are blind or have low vision by mobilizing leaders, advancing understanding, and championing impactful policies and practices using research and data. Digital inclusion is a high priority for people who are blind, have low vision, and are deafblind, especially as digital services become more omnipresent and important. In our response to the NPRM, we will recommend ways that the Commission can address and eliminate digital discrimination against people with disabilities through this rulemaking as well as highlight areas where more work may remain to be done.

Add Disability as a Covered Category in the Definition of Digital Discrimination of Access

First, AFB underscores its recommendation that disability be included as a protected category in the definition of “digital discrimination of access”. [1] We know that there are existing disparities in internet use among people with and without disabilities and unequal access to internet services is a factor therein. According to the Pew Research Center, about 75% of Americans with disabilities report using the internet on daily basis, whereas 87% of people without disabilities use the internet daily. While broadband access is not the only factor contributing to this disparity, it is certainly a compounding factor for many individuals. In the third Access and Engagement study examining the pandemic experiences of blind and low vision students, 75% of the educators surveyed reported having at least one student without reliable access to the Internet, to devices, or to sufficient Internet bandwidth, and 30% of teachers reported that at least a quarter of their students were on the low end of the digital divide.[2] This lack of access negatively impacted many students’ ability to receive specialized services, such as Braille or orientation and mobility instruction, in addition to their regular academic coursework, and some families even halted their children’s services because of lack of internet access. [3] These decisions could have long term impacts on the children’s blindness-specific skill development and cumulative effects on their readiness for school and work. AFB is concerned that unequal access to broadband will continue to create disparities in early intervention, education, rehabilitation and other services that are needed for full inclusion of people with disabilities as well as creating inequities in access to remote employment, telehealth, opportunities for social interaction, and more.

Indeed, AFB is concerned that not considering disability in a digital discrimination framework will perpetuate disparate impacts that may be specific to the experience of disability. For example, people with disabilities face unique barriers to transportation and accessing in-person services that increase their benefits of having access to digital services and platforms, compared to people without disabilities. AFB vehemently advocates for the removal of barriers to in-person participation in daily life activities but recognizes that access to internet-based services may reduce the burdens of finding accessible, reliable transportation to barrier-free facilities. Using the internet to work remotely may also increase productivity, reduce auditory distractions, and reduce actual or perceived stigma or discrimination related to disability by removing some of the disability-specific barriers that people who are blind or have low vision face in the office, according to AFB’s research into the use of technology in the workplace. [4]

Because of the significant effects that lack of broadband access has on people with disabilities, AFB recommends that the Commission incorporate factors related to disability in its analysis of discrimination preferably as a separate category but at a minimum, as part of the assessment of discrimination in other categories. People belonging to the other named categories, such as race, income, and national origin, are more likely to experience disability. Meanwhile, having a disability compounds any discriminatory effects of belonging to those groups. Nevertheless, because there are benefits and barriers related to broadband access that are unique to people with disabilities regardless of race, income, national origin, or other categories, we most strongly encourage the Commission to add a dedicated category for disability to the definition of “digital discrimination of access” as one step to ensure that people with disabilities “benefit from equal access to broadband internet services” [5] and in keeping with the Commission’s “continuing effort to advance digital equity for all.” [6]

Consider both Disparate Impact and Disparate Treatment

As noted in our comment on the Notice of Intent, AFB supports an approach based on disparate impact. However, we also support the Commission’s proposed approach to consider disparate impact and/or treatment. Most important to this rulemaking is creating a manageable way to assess and rectify disparities in access that cannot be justified by reasonable business needs. The statute is a testament to the importance that Congress places on universal access to broadband, as are the many other new programs (including the Affordable Connectivity Program) created for the purpose of expanding broadband access. It is AFB’s opinion that in order to “facilitate equal access to broadband internet service,” [7] the Commission must have means of addressing both intended and unintended effects of broadband provider policies and practices when those effects result in unequal access for one or more protected groups.

Covered Practices and Policies

There are a wide and complex array of policies and practices that go into the development, deployment, and adoption of internet services. We encourage the Commission to not limit its ability to consider factors on a case by case basis that may present barriers to broadband access. That said, we especially encourage the Commission to take into account practices and policies that will have specific impacts on people with disabilities in understanding whether quality of service metrics are comparable. The Commission should address minimum bandwidth, speed, and latency that may affect the use of assistive technologies and services ranging from the use of multiple assistive technology devices on a single connection to visual interpreting apps and ASL interpreting that require significant amounts of data and low latency. We further encourage the Commission to consider how data caps and rate limiting may affect access to such services and consider these needs as factors in calculating whether a policy is equitable.

Additionally, customer service considerations that are unique to people with disabilities include both the accessibility of customer service (e.g. accessible websites, payment portals, outage reporting sites, stores, and advertising materials) and the impacts of unreliable service calls. AFB strongly encourages the Commission to include an accessibility requirement that references both this statue and other laws that require internet service providers to make their services accessible. Additionally, we encourage the Commission to consider factors related to the timeliness, accessibility, and responsiveness of service calls related to the installation and repair of internet infrastructure. As noted, for people with disabilities, broadband may be the only way to access a given service that others could access in the community, or it may underpin a critical assistive technology device, such as a smart lock required to enter a home. Unreasonably long delays in service calls are an example of a practice that may not be intended to disparately impact people with disabilities but may have the effect of keeping them out of work, a health appointment, or even their home because of barriers to independently accessing in-person alternatives or tools through nondigital means.

Cover both Adoption and Availability of Internet Service

In order to achieve the goal of “facilitating equal access,” we believe that it is imperative to consider both factors related to adoption and factors related to availability of broadband. As noted earlier, there are disparities in the actual use of the internet between people with and without disabilities. The causes of this disparity cannot be fully addressed if only those users who already subscribe are counted. Indeed, nonsubscribers are likely to be experiencing intersectional challenges between disability and age, income, geography, national origin, or race.

Make the Complaint Process Accessible to All People with Disabilities

AFB encourages the Commission to ensure that there are accessible formats available online and offline to file complaints. The Commission should ensure that the internet is not the only means of filing a digital discrimination complaint as many individuals may be facing barriers in accessing the internet or devices to complete the form. Further, we encourage the Commission to continue making the online complaint process accessible, in accordance with Section 508 of the Rehabilitation Act. Further, we recommend making educational materials available in plain language, so that they are accessible to people with disabilities as well as people with limited English language reading skills. It may be most effective to distribute information about the complaint process through the broadband services providers and other touchpoints where consumers are most likely to seek information about their access to the internet.

Use Funding Programs to Promote Disability Inclusion

The Commission should clarify that programs and services funded by the Commission are prohibited from discriminating on the basis of disability. If the Commission does not alter the proposed categories in this rulemaking to cover disability, the Commission should ensure that the Section 504 regulations provide sufficient and parallel mechanisms for preventing discrimination in access to internet services on the basis of disability.

Promote Digital Equity through a Whole-of-Government Approach

As we noted in our comments on the Notice of Intent last year, digital discrimination is more expansive than the rules on “digital discrimination of access” that the Commission proposes per section 60506. In addition to internet connectivity barriers, people who are blind, deafblind, or have low vision face significant barriers due to inaccessible digital platforms and content, barriers to obtaining assistive technology (AT), and insufficient high quality digital literacy training to use computers with AT. The National Deaf-Blind Equipment Distribution Program and ACP are important programs that increase access to AT and broadband respectively. Other federal agencies, including the Departments of Justice, Education, and Health and Human Services are pursuing digital accessibility regulations under the authority of the Americans with Disabilities Act and the Rehabilitation Act, while the Department of Labor issued a Request for Information regarding digital literacy and resilience. We encourage the Commission to be mindful of the interconnections between these federal efforts and their relationship to broadband internet access. For people with disabilities, all of these links must be present to utilize the full benefit of the internet. Indeed, breaking down broadband barriers alone will not address the subsequent barriers that many people with disabilities will face when, for example, they are attempting to use inaccessible websites over a broadband connection. Thus, we support a whole-of-government approach where agencies are working in coordination to dismantle the complex layers of digital discrimination and create an equitable environment for all.

Thank you again for the opportunity to respond. If you have any questions about our comment, please contact Sarah Malaier, smalaier@afb.org.

Sincerely,

Stephanie Enyart

Chief Public Policy and Research Officer