The FCC’s clock is ticking on defining digital discrimination

In the Infrastructure Investment and Jobs Act, Congress tasked the Federal Communications Commission 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 the statute, the term “equal access” refers to “equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions.” In principle, Congress’s directive is straightforward and reasonable considering the significant federal dollars being doled out to internet service providers (ISPs) for expanded high-speed broadband deployments. Moreover, the statement of the policy to avert digital discrimination attempts to guarantee that all communities—regardless of income level, race, ethnicity, color, religion, or national origin—will have available and affordable broadband internet access when the federal grant expires. A large part of the FCC’s activities revolves around developing a clear and supportable definition of digital discrimination. The most critical question is whether the agency should define digital discrimination based on a standard of “disparate impact” or “disparate treatment.”