12 Days: FCC Issued Rules Against Digital Discrimination

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12 Days: FCC Issued Rules Against Digital Discrimination
Illustration by DALL-E

WASHINGTON, December 29, 2023 – In a vote split 3-2 along party lines, the Federal Communications Commission moved to adopt rules aimed at preventing discrimination in access to broadband services, on November 15.

Under the Infrastructure Investment and Jobs Act, the agency was tasked by Congress to enact regulations in 2023 aimed at eliminating digital discrimination

and preventing its recurrence. The law amended the Communications Act to include the standard that “subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service.” (47 U.S.C. 1754)

The FCC’s new rules ban service providers from broadband discrimination by implementing a “disparate impact” standard. This standard aims to hold internet service providers accountable for practices that result in unequal broadband access among marginalized groups, irrespective of the providers’ intentions.

The shift departs from the former “disparate treatment” norm, which long upheld that either the government or third-party plaintiffs had to present proof of deliberate discrimination by a business to establish liability.

The new regulations implement a rule that digital discrimination can occur even if there is no discriminatory intent, based on criteria like income or race, is involved.

How will the agency conduct enforcement?

The commission will now have enforcement powers available, and investigations may be initiated through a complaint process.

Broadband providers criticized the agency and threated to sue because of the potential broad application of the new standard, fearing it might penalize routine business practices. Their efforts aimed to narrow the definition of digital discrimination to actions specifically designed to disenfranchise particular communities.

Before the agency’s action in mid-December, 24 organizations penned a letter to Congress urging its members to oppose the FCC’s rulemaking in mid-December.

Differing views on the rule’s effect

Experts held differing views regarding the probable effects of the FCC’s rules at a November Broadband Breakfast Live Online event. 

At the event Harold Feld, senior vice president at public interest group Public Knowledge, maintained that the rules’ impact would be minimal for the initial 60 days after implementation, and then, most likely remedy only the “worst and most visible disparities” in broadband access. 

Center for Technology Innovation at the Brookings Institution Director Nicol Turner-Lee cautioned that demonstrating instances of discrimination poses a significant challenge, as evidenced in other sectors such as housing, healthcare, and employment.

Others in the industry have raised concern that the Broadband Equity Access and Deployment Program may not effectively address the issues faced by marginalized groups. In a recent Expert Opinion piece, Emma Gautier from the Institute for Local Self-Reliance contended that urban areas, significantly impacted by digital redlining, might face greater obstacles in obtaining BEAD funding. This challenge stems from the infrastructure law’s predominant emphasis on rural development. 

The situation is further complicated by flawed FCC maps, she said which exaggerate coverage, speeds, and competition, making it notably difficult or perhaps impossible for most urban zones tagged as “served” to access BEAD funds.

See “The Twelve Days of Broadband” on Broadband Breakfast

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