Big ISPs Hate the Federal Communications Commission’s Digital Discrimination Rules

The big ISPs certainly have their knickers in a knot over the adoption of digital discrimination rules by the Federal Communications Commission (FCC). The FCC was required to adopt some version of digital discrimination rules by language included in the Infrastructure Investment and Jobs Act (IIJA). The IIJA says that the FCC needs to prevent discrimination based on income level, race, ethnicity, color, religion, or national origin. The ISPs wanted discrimination to be defined as intentional discrimination where an ISP purposefully decides not to serve somebody. The FCC adopted the intentional discrimination definition, but also adopted what it calls disparate market impacts, which means the agency can consider discrimination that is obvious in the market without having to prove an ISP’s intent. The big ISPs are particularly distraught over the idea of the FCC monitoring digital discrimination since it is coupled with a likely vote to reintroduce Title II regulation of broadband. They are worried that the combination of the two sets of regulations will mean they won’t be free to do anything they like in the market. That’s what regulation is supposed to do. A handful of large ISPs have near-monopoly power in the broadband market, and the job of regulators is to balance that power by making sure that the general public still gets a fair shake. You’ll not hear the big ISPs talking about that.