For more than 90 years, federal policy has declared that all Americans should have access to affordable communications services without discrimination. Keeping in line with this tradition, Congress directed the Federal Communications Commission to ensure that no matter who you are or where you live, you should be able to connect to the telecommunications networks that tie the nation together. Originally, this meant telephone service. Today, it includes broadband.
Although we reached this goal for telephone service through federal and state policies, we have yet to come close to this success with broadband. Rural areas, low-income communities and individuals, and racial and ethnic minorities still often have less access to quality, affordable broadband. In other words, digital discrimination continues to persist. As defined by the FCC, digital discrimination occurs when the policies or practices of internet service providers “differentially impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, color, religion or national origin.” For example, broadband providers have engaged in digital redlining in various areas, such as Cleveland, by simply failing to invest in system upgrades for low-income neighborhoods and communities of color. This digital discrimination prevents residents in these areas from participating in the modern world, consequently depriving them of remote work opportunities, telemedicine, education, and other crucial aspects of living that necessitate internet connection.
As a response to the pervasive impact of such intentional and unintentional discriminatory practices and outcomes, Congress passed the Infrastructure Investment and Jobs Act of 2021 (IIJA) and directed the FCC to adopt rules “preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin.” With this law, Congress determined, on a bipartisan basis, that ISPs are discriminating against protected classes (including low-income consumers). After receiving input from many stakeholders, including recommendations from the Communications Equity and Diversity Council (CEDC) and comments by community members, consumer advocacy groups, and even broadband providers, the FCC issued its rules.
Importantly, the FCC adopted a disparate impact, as well as a disparate treatment, standard. While intentionally discriminatory conduct would of course violate the FCC’s rules, those alleging digital discrimination do not need to document discriminatory intent, as long as the discriminatory effects of ISP decisions can be demonstrated. This is consistent with how other kinds of nondiscrimination laws are applied, such as those designed to combat housing discrimination.
In January, broadband providers filed suit against the FCC, arguing that the Commission’s rules exceed its authority. The providers argue that Congress intended to limit digital discrimination to cases where intentional discrimination can be proved. This reading is grossly misguided for two main reasons.
First, this reading is at odds with longstanding universal service policies. In the first words of the Communications Act, Congress charges the FCC “to make available, so far as possible, to all the people of the United States,” access to a world-wide communications network at just and reasonable rates. The Telecommunications Act of 1996 further reinforced these principles, and implemented a broad “nondiscrimination provision” to expressly prohibit discrimination on the basis of “race, color, religion or national origin or sex,” and stated that all Americans, “including low-income consumers and those in rural, insular and high cost areas, should have access to telecommunications and information services” of comparable qualities and at comparable rates as in urban areas. The deep-rooted principles of non-discrimination and universal service are at the very core of communications law, and the IIJA is aligned with that precedent.
Second, this reading of the IIJA would limit any meaningful progress in combating digital discrimination. It would require a demonstration of intent, which like any mental state, is difficult to prove. More than that, some ISPs might claim to have economic or technical reasons for bypassing some areas, such as low-income communities, that are not based on specific discriminatory animus. A broadband provider that decides to bypass a low-income community to seek higher returns in wealthy areas might just be chasing dollars, not specifically “intending” to discriminate against a class of people. However, it is exactly this dynamic that Congress sought to disrupt. Congress determined that low-income communities, as well as racial and ethnic minorities, should have equal access to broadband, provided it is economically “feasible” for providers to serve them.
At the same time, it is worth noting that the IIJA does not require ISPs to bankrupt themselves to build out in less profitable areas. As the National Telecommunications and Information Administration wrote in its comments to the FCC, citing Public Knowledge’s own comments, “Public Knowledge, meanwhile, offers real-world examples demonstrating that providers can profitably deploy to all segments of the market, undermining claims that sound business decisions inevitably produce discriminatory outcomes.” The question is not whether ISPs could make more money serving wealthier, often whiter areas. It is whether it would be feasible for them to provide service in more equitable ways. However, under the interpretation of the law that broadband providers are pressing to the court, the exact same deployment patterns Congress sought to remedy would be allowed, provided ISPs had a financial justification for them, as opposed to a specifically discriminatory one. An interpretation of a law that renders it significantly less effective is not the correct one.
The COVID-19 pandemic surfaced the barriers historically marginalized communities experience when attempting to access, afford, and adopt broadband. It demonstrated that our country is vulnerable economically, politically, and socially when communities are unable to enjoy the benefits of high-speed internet, whether this is done intentionally or unintentionally. Congress stepped in, with an ambitious directive to the FCC, which the agency followed. The narrow reading of the law that broadband providers are arguing for would weaken from a remedial statute intended to fix real problems, to a general statement of policy that is difficult to enforce. Courts should assume that Congress meant what it said and uphold the FCC’s digital discrimination rules.