The Federal Communications Commission (FCC) vote this week to enact new rules intended to eliminate discrimination in access to internet services, a move which regulators are calling the first major U.S. digital civil rights policy.
Commissioners voted 3-2 on Wednesday on a new rules package, seeking to eliminate “digital discrimination” by broadband providers to communities based on income, race, ethnicity and other protected classes.
The ruling will allow the FCC to crack down on a range of digital inequities including the disparities in the investment of services for different neighborhoods, as well as what experts refer to as the “digital divide”.
FCC Chairwoman Jessica Rosenworcel said that Congress required the agency to adopt rules addressing digital discrimination, through bipartisan infrastructure legislation passed at the start of 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 broadband is essential infrastructure for modern life, and these rules will bring us one step closer to ensuring everyone has access to the internet, no matter who they are or where they live,” she said.
“Congress required that the FCC determine how to address possible digital discrimination in section 60506 of the Infrastructure Investment and Jobs Act (IIJA), which was signed into law in November 2021. But with the adoption of the Digital Discrimination Report and Order and Further Notice of Proposed Rulemaking (GN Docket No. 22-69) even if there is no evidence of intent to discriminate, which is the standard for such liability, fault can still be found”, BusinessWire reported on Wednesday.
The new rules will allow the FCC to determine whether an internet service provider knowingly discriminated against a community in how it built, upgraded or maintained internet access. They will also provide a framework for determining whether a proposed service plan would create a “discriminatory effect” that couldn’t otherwise be avoided by reasonable steps.
“While the intent of the statute is to apply pressure to internet service providers in order to avert discrimination, it also eases the responsibility of states and localities who are receiving (federal infrastructure) funds to have that same responsibility,” said Nicol Turner Lee, director of the Center for Technology Innovation at The Brookings Institution.
The National Cable and Telecommunications Association, the industry’s main trade association, called the new rules “potentially unlawful”, adding that the FCC was seeking “expansive new authority over virtually every aspect of the broadband marketplace”.
“Many, if not most, long-standing, uniform business practices could be seen to have differential impacts on consumers with different income levels,” the group said.
FCC Commissioner Brendan Carr slammed the decision during Wednesdays meeting, arguing that “It’s not about discrimination. It’s about control”. Carr also said that that the new policies open the agency up to potential litigation and would hamper operations by the telecommunications industry.
“President Biden has called on the FCC to adopt new rules of breathtaking scope,” Carr noted on X, formerly Twitter. “Those rules would give the federal government a roving mandate to micromanage nearly every aspect of how the Internet functions — from how ISPs allocate capital and where they build, to the services that consumers can purchase; from the profits that ISPs can realize and how they market and advertise services to the discounts and promotions that consumers can receive.”
“The FCC reserves the right under this plan to regulate both ‘actions and omissions, whether recurring or a single instance.’ In other words, if you take any action, you may be liable, and if you do nothing, you may be liable. There is no path to complying with this standardless regime. It reads like a planning document drawn up in the faculty lounge of a university’s Soviet Studies Department.”
“Ignoring disparate impact would have denied Congress’s directive to this agency. It is simply not plausible that we could prevent and eliminate digital discrimination by solely, solely addressing intentional discrimination,” said fellow commissioner Geoffrey Starks. “The rules we adopt here today are not the end of our work.”
The Blaze reported this week that this new ruling marks “the first time the FCC would gain the authority to oversee various aspects of every ISP’s service termination policies, including customer credit usage, account history, credit checks, and account termination, among other related matters”.
Ranking Member Ted Cruz (R-Texas) of the U.S. Senate Commerce Committee, along with 27 fellow senators, pushed back this week, urging the FCC to withdraw the proposal and warned that the proposal would grant the federal government significant influence over virtually every facet of the internet, potentially subjecting broadband providers to extensive, vague, and detrimental liability under a “disparate impact” standard.
“Your Draft Order, which largely follows a Biden administration diktat, will create crippling uncertainty for the U.S. broadband industry, chill broadband investment, and undermine Congress’s objective of promoting broadband access for all Americans. We urge you to adhere to the will of Congress and conform to the plain meaning of [the bipartisan infrastructure bill] to avoid causing serious damage to the competitive and innovative U.S. broadband industry”, the Senators said in a letter to FCC Chairwoman Rosenworcel.