Defining Broadband Discrimination

One of the provisions of the Infrastructure Investment and Jobs Act (IIJA) is that it requires the 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 legalese, the term equal access, in this case, means that consumers should be able to expect to get the same speed, capacity, and latency as other customers buying the same product from the same ISP sold elsewhere. This new mandate has been labeled as a prohibition against digital discrimination.

The FCC is required by the IIJA to make a pronouncement of its interpretation of the discrimination rules in November. The FCC is going to have to define how it will identify digital discrimination and what remedies the FCC might have in mind for anybody who violates the principle. One of the interesting discussions on the topic is who this applies to, since the IIJ language doesn’t specifically mention ISPs. Might this also apply to landlords that own multiple apartment buildings? Might this apply to state or local government policies that promote discrimination?

I think a normal person reading this requirement might assume that Congress didn’t want ISPs to win the upcoming gigantic broadband grants and then discriminate against communities for any reason – but particularly because of a difference in income levels between communities. A number of the big ISPS have been accused over the years of redlining – of offering the best technology and prices to neighborhoods with the highest household incomes.

One of the challenges facing the FCC is to define what constitutes digital discrimination. As you might imagine, ISPs are taking a very different approach to the issue than public interest groups. ISPs think that the FCC should focus on intentional discrimination – against policies and practices by an ISP that are clearly intended to discriminate against the public. If the FCC’s standard is intentional discrimination, then the FCC would have to prove that an ISP is purposefully discriminating before it can take any action. If discrimination rules are based on this interpretation, then it’s hard to imagine many cases where an ISP would be found guilty of discrimination. It would probably require a believable whistleblower from inside an ISP to prove that an ISP was deliberately discriminating.

Public interest groups think that the FCC should instead concentrate on disparate market impacts where ISP actions have resulted in discrimination, regardless of an ISP’s intentions. Under this test, ISPs that always avoid building in low-income neighborhoods or that have different price policies for neighborhoods based on household incomes could be found to have violated digital discrimination. The proof of the discrimination would be found in the market results instead of the ISP’s intentions.

The FCC is required to deliver its digital discrimination policy to Congress and then act on the defined principle in the future. At a minimum, I would bet that ISPs are going to have to periodically certify to the FCC that they don’t discriminate. Beyond that, the agency is going to have to define the process by which it will identify discrimination and take action to remedy violations of the principle.

In practical application, many FCC policies only apply to giant ISPs – but I’m not so sure about this one. Is a small ISP discriminating if it only builds fiber to higher income neighborhoods? We’ll find out in November.