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The FCC’s Clock Is Ticking on Defining Digital Discrimination

 |  October 9, 2023

By: Nicol Turner Lee & Jack Malamud (Brookings Institution)

In November 2021, when Congress approved $65 billion for the expansion of high-speed broadband networks as part of the Infrastructure Investment and Jobs Act (IIJA), it tasked the Federal Communications Commission (FCC) to “take steps to ensure that all people of the United States benefit from equal access to broadband internet access within the service area of a provider of such service.” In the statute, the term “equal access” refers to “equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions.” These mandates can be found in Section 60506 of the IIJA, and further require the FCC to create model state and local policies to combat digital discrimination among ISPs and revise its public complaint process to usher in consumer reports related to digital discrimination.

In principle, Congress’s directive is straightforward and reasonable considering the significant federal dollars being doled out to internet service providers (ISPs) for expanded high-speed broadband deployments. Moreover, the statement of the policy to avert digital discrimination attempts to guarantee that all communities, regardless of income level, race, ethnicity, color, religion, or national origin, will have available and affordable broadband internet access when the federal grant expires.

Regardless of its intent, commenters on opposite sides of the issue agree that the provision is vague. The ambiguous nature of the provision—and the question of what, exactly, digital discrimination means—has created room for a heated debate between public interest groups, ISPs, industry associations, and think tanks. With a November 15 deadline looming to deliver definitional language and guidance to Congress, the FCC must decide on their definition, approach, and methodologies for finalizing rules for digital discrimination, and choose between the adoption of either differential treatment, disparate impact, or another standard when identifying and investigating potential claims or complaints by subscribers that come from federally protected groups, and communities with certain economic vulnerabilities.

However, as is the case with most technology policies, the details matter and will determine the long-term success of this initiative, particularly in how the FCC identifies and mitigates complaints of digital discrimination. And the question of who is directly affected by any new rules and policies is critical. Section 60506 makes clear that any model policies are to be applied to ISPs, but the FCC is actively seeking comment on whether its rules should be limited to ISPs or cover all those involved in providing or determining access to broadband, including state and local governments, those who maintain network infrastructure, and landlords, in instances when the existing policies of these actors contribute to or maintain structural discrimination…