George Ford

The lack of broadband in many rural and Tribal communities in the U.S. is widely recognized, but there are also claims of a lack of broadband availability in predominantly minority and urban communities, sometimes labeled digital redlining or digital discrimination. Motivated by such claims, the Infrastructure Investment and Jobs Act of 2021 includes a provision addressing digital discrimination and directing the Federal Communications Commission to write rules implementing the statutory provision.

The Federal Communications Commission recently voted to subject the Internet, once again, to legacy public utility telecommunications regulation originally designed for the old Ma Bell monopoly. While the FCC’s new rules do not push so far as to regulate retail rates (though they do regulate wholesale termination rates), the FCC’s rules open the door to potential retail rate regulation of broadband services by the states.

Section 706 of the Telecommunications Act of 1996 has played a recurring supplemental role in the Federal Communication Commission’s (FCC) efforts to reclassify Broadband Internet Access Services as a Title II common carrier telecommunications service under the auspices of Net Neutrality. Section 706 instructs the Commission to encourage the “reasonable and timely” deployment of broadband services to all Americans.

In the Telecommunications Act of 1996, Congress directed the Federal Communications Commission to reduce regulation. While the FCC initially made several bipartisan steps in that direction, over the last three presidential administrations the agency has switched between aggressive and relaxed regulation of broadband services on an explicitly partisan basis, including the imposition of legacy common carrier regulation on broadband services in the name of Net Neutrality.

Buried deep within the stunning array of broadband subsidy provisions contained in the Infrastructure Investment and Jobs Act of 2021 lies Section 60506—labeled “Digital Discrimination”—which requires the Federal Communications Commission (FCC) to issue rules to prevent “digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin,” while taking into account the issues of “technical and economic feasibility.”1 Although Section 60506 perhaps represents a sign of our political times,2 there simply is no credible evidence of a racial disparity in

This study focuses on broadband deployment over the years 2014- 2020 in Tribal and non-Tribal census tracts using the Federal Communications Commission’s Form 477 data to quantify progress. This “Tribal Gap” is measured as the difference in average broadband availability between Tribal and non-Tribal census tracts. Unmatched and matched samples are used, and a sample of census tracts within 30 miles of a Tribal area is also analyzed with and without matching.

To receive subsidies to expand broadband to unserved areas under the Broadband Equity, Access, and Deployment (BEAD) program provided by the Infrastructure Investment and Jobs Act (IIJA), the National Telecommunications and Information Administration (NTIA) requires states to implement plans to ensure middle-class affordability. Since the NTIA did not conclude that broadband was unaffordable for middle-class households, the threshold question is whether broadband is affordable to the middle class. Affordability, which has no formal definition, is defined by reference to adoption.

The Federal Communications Commission’s existing broadband availability maps have been heavily criticized as inaccurate, especially for the purpose of distributing billions in subsidy dollars to extend broadband networks to unserved areas. In a rush to distribute the National Telecommunication and Information Administration's (NTIA's) Broadband Equity, Access and Deployment (BEAD) subsidy dollars, a few states have initiated their own mapping efforts and some advocates have proposed alternative mapping means using speed-test data to identify areas that lack adequate broadband.

Until recently, the only source for broadband availability data was the Form 477 data collected (since 2014) by the Federal Communications Commission. These data are collected by the FCC from broadband providers at the census block level (averaging about 20 homes). Under an “all-in” assumption, a census block is deemed to have broadband (at a specified speed threshold) if a provider serves (or could serve in a few months) a single location within the block. This assumption tends, of course, to overstate broadband availability.

The lack of broadband in many rural and Tribal communities is widely recognized, but there are also claims of a lack of broadband availability in predominantly Minority and urban communities, sometimes labeled digital redlining or digital discrimination. Motivated by such claims, the bi-partisan Infrastructure Investment and Jobs Act of 2021 (IIJA) includes a specific provision to address digital discrimination and the Federal Communications Commission is currently contemplating formal rules for such.