The Federal Communications Commission has adopted new rules aimed at eliminating discrimination in access to Internet services, a move regulators are calling the first major U.S. digital civil rights policy.
The package of rules, which the commission ratified Wednesday, would give the agency the authority to review and investigate cases of discrimination by broadband providers to different communities based on income, race, ethnicity and other protected classes.
The order also provides a framework for the FCC to crack down on a range of digital inequities, including disparities in investment in services for different neighborhoods, as well as the “digital divide,” a term experts use to describe the overall lack of Internet access many communities experience due to regional or socio-economic inequality.
FCC Chair Jessica Rosenworcel said Congress required the agency to adopt rules on digital discrimination, through bipartisan infrastructure legislation passed early in the Biden administration.
“The digital divide puts us at an economic disadvantage as a country and disproportionately affects communities of color, lower-income areas and rural areas,” Rosenworcel said in a statement to The Associated Press.
“We know that broadband is essential infrastructure for modern life, and these rules will bring us one step closer to ensuring that everyone has access to the internet, no matter who they are or where they live,” she said.
Poorer, less white neighborhoods were found to have received lower investment in broadband infrastructure and offered worse deals for internet service than comparably whiter and higher-income areas. That inequality of access “was particularly pronounced during the pandemic,” the chairman said.
There is no clear standard for tracking inequalities in the provision of digital services, although communities affected by other discriminatory practices such as redlining and disinvestment in rural areas report poorer levels of service or outright lack of access. The FCC hopes its new rules will streamline the process for reporting such problems to establish an official record of discrimination going forward.
The rules allow the agency to investigate whether an ISP knowingly discriminated against a community in how it built, upgraded or maintained Internet access, as well as provide a framework for determining whether a proposed service plan would create a “discriminatory effect” that could”t otherwise be avoided with reasonable measures.
“While the intent of the statute is to put pressure on ISPs to prevent discrimination, it also eases the responsibility of states and localities that receive (federal infrastructure) funds to have the same responsibility,” said Nicol Turner Lee. director of the Center for Technology Innovation at The Brookings Institution.
The telecommunications industry has opposed the framework, arguing the policy would inhibit investment in communities by requiring regulations the industry says are unnecessary. In a statement after Wednesday’s vote, The National Cable and Telecommunications Association, the industry’s largest trade association, called the new rules “potentially illegal.” The group also said the FCC is seeking “expansive new authority over virtually every aspect of the broadband market.”
“Many, if not most, long-standing, uniform business practices can be seen to have different effects on consumers at different income levels,” the group said.
Meanwhile, Free Press Action, a digital advocacy group, applauded the new rules and urged the FCC to go further by reclassifying certain aspects of broadband to bring about “swift action to restore the essential regulatory powers the agency needs to do its job.”
During Wednesday’s FCC hearing, Brendan Carr, one of the agency’s commissioners, argued that the new policy opened the agency to potential litigation and would hinder the telecommunications industry’s operations. “It’s not about discrimination. It’s about control,” said Carr, who said the telecommunications industry had made a “Faustian bargain” by supporting the bipartisan law and previously called the framework a “power grab.”
“To ignore disparate impact would have negated Congress’s directive to this agency. It simply does not make sense that we could prevent and eliminate digital discrimination by addressing only intentional discrimination,” said Commissioner Geoffrey Starks. “The rules we are adopting here in today is not the end of our work.”
The FCC is also poised to reimplement key net neutrality rules that were repealed under the Trump administration. President Joe Biden has said the investments in the bipartisan infrastructure law are intended to connect every American household to high-quality Internet service by 2030, regardless of income or identity.
“Whatever the FCC does in terms of discipline or punishment, I hope the benefit goes to the community of discrimination in the form of more equitable distribution,” said Christopher Ali, a professor of telecommunications at Pennsylvania State University.
“It’s going to be hard to order. But we have to make sure communities reap the benefits of these decisions. I don’t just think these companies have been penalized,” said Ali, who participated in an FCC diversity and equity task force focused on to take with them from the pandemic.
“It’s unclear at this point how many complaints it would take for the FCC to elevate it to an investigative matter,” Ali said. “So maybe then, that’s where community groups and local organizations are going to be absolutely critical.”
Matt Brown is a member of the AP’s race and ethnicity team. Follow him on social media.
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