Title VII to the Rescue: MMTC Presents FCC with Framework for Protecting the Open Internet

by Marcella Gadson on September 24, 2014

Computer Judge Drawing from the well-known, user-friendly process of filing employment discrimination complaints before the Equal Employment Opportunity Commission, the Minority Media and Telecommunications Council has weighed in with a nuanced approach to protect the open Internet from claims of blocking, throttling, or other complaints.

Last week, MMTC filed Reply Comments for a coalition of 45 national minority organizations, asserting that the FCC’s current authority under Section 706 of the 1996 Telecommunications Act, combined with a consumer-focused enforcement scheme modeled after Title VII of the 1964 Civil Rights Act, is the best way to implement strong, legally enforceable, and consumer-friendly open Internet rules with no blocking, no paid prioritization, and heightened transparency.

MMTC filed a memorandum last week detailing how the FCC can import the EEOC’s time-tested grievance process to alert the FCC to potential breaches of the open Internet rules.

Filing an Open Internet Complaint can be as Easy as a Title VII Hotline

Title VII of the 1964 Civil Rights Act provides a detailed grievance process through which anyone who has been discriminated against by an employer on the basis of sex, race, color, religion, or national origin can file a charge with the EEOC. Charges must be filed directly at one of the EEOC field offices or by mail. The EEOC offers an online assessment system and telephone hotline that provide basic information and help individuals assess whether the EEOC can help.

MMTC suggested that a consumer-focused open Internet enforcement plan modeled after Title VII “would allow a complainant to provide the FCC with enough information to make out a prima facie case of specific or systemic harm, allowing the Commission to conduct an initial screening and, if the Commission’s staff issues a non-precedential finding of probable cause, the agency can institute expedited enforcement or mediation.”

Using Title VII To Strengthen the Framework for Regulating the Internet

In its memorandum, MMTC points out that “neither Title II of the Communications Act, nor Section 706 of the Telecommunications Act, provides an effective or affordable enforcement process for consumer complaints about open Internet rule violations in the manner the FCC seeks to resolve them.” When violations do occur, it is vital that they are resolved as expeditiously as possible, as consumers will likely lack the resources necessary to engage in a protracted fight against their ISP – they are more likely to give up and simply change providers.

The FCC currently has authority to regulate broadband under Section 706 of the Telecom Act, but that statutory provision contains no specified enforcement procedure. Under Section 706, the FCC would therefore need to default to its general complaint handling procedures. Unfortunately, these procedures are far from expedited, since the FCC’s decision must be “appealable and precedential” and the FCC’s staff must go through a number of channels before it can reach such a decision. The Title VII EEOC grievance process, on the other hand, must only yield a finding of probable cause or no cause – a decision that can be made within a few days, thus allowing a violation to be remedied before it spreads.

Title VII of the Civil Rights Act therefore provides a neat framework within which the FCC can enforce its open Internet rules well within its Section 706 authority. The FCC’s process would mirror that of the EEOC’s, but provide a digital complaint form in addition to the online assessment and hotline assistance programs. Given the comparatively small number of grievances the Commission has received regarding open Internet violations compared to the vast number of employment discrimination grievances the EEOC receives, the FCC’s Enforcement Bureau should be able to promptly review each case, provide guidance to the parties regarding their likelihood of success, and decide whether to dismiss the case, refer it to the FCC’s Administrative Law Judge or his/her designee for mediation, or open an investigation. If the Enforcement Bureau determines that a violation is especially egregious, the Bureau could bring a complaint to the full Commission on its own.

Title VII is A Bridge Over the Troubled Waters of the Internet Debate

The net neutrality debate centers around whether the Internet should be regulated as a public utility to ensure that content providers do not take a “paid prioritization” approach to discriminate against Internet traffic, or whether the Commission should avoid stifling innovation and investment by using Section 706 of the Telecom Act instead.

MMTC and the 44 other national minority organizations believe that strengthening Section 706 by enforcing regulations using the EEOC’s Title VII model is a create way to retain the flexibility and innovation that the Internet has enjoyed since its creation, and simultaneously ensure that ISPs won’t block content or create unreasonable paid prioritization schemes, and will know that the FCC will act swiftly if they do.

 

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