Free Press Calls on the FCC to Adopt Broad Anti-Discrimination Rules

When Congress created the $42.5 billion Broadband Equity, Access, and Deployment Program (BEAD) and $14.25 billion Affordable Connectivity Program (ACP) in the Infrastructure Investment and Jobs Act (IIJA), it also enacted Section 60506 of that law, which directs the Federal Communications Commission to “prevent[ ] digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin.” Congress enacted this non-discrimination statute based on mounting evidence that low-income people and people of color are more likely to live in monopoly broadband areas, and are not able to enjoy the benefits of competition available to people living in more affluent areas. Congress had to expressly craft this non-discrimination statute because of the Trump-era FCC’s capricious decision to once again abandon the agency’s Title II authority over broadband and all two-way telecommunications services. The widely different interpretations of Section 60506 are themselves a strong indicator that the FCC  must adopt broad rules against digital discrimination, and address alleged violations on a case-by-case basis, without unnecessarily limiting its authority by pre-defining “safe harbors” for discriminatory actions. The FCC’s proposed definition of “digital discrimination of access” is well-suited to this purpose, as it recognizes the harms of discrimination, whether intentional or structural in nature.