The Road to Digital Discrimination Is Paved With Good Intentions: Why Universal Service Depends Upon a Disparate Impact Standard

Rural areas, low-income communities and individuals, and racial and ethnic minorities still often have less access to quality, affordable broadband. In other words, digital discrimination continues to persist. As a response to the pervasive impact of such intentional and unintentional discriminatory practices and outcomes, Congress passed the Infrastructure Investment and Jobs Act of 2021 (IIJA) and directed the Federal Communications Commission to adopt rules “preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin.” Importantly, the FCC adopted a disparate impact, as well as a disparate treatment, standard. While intentionally discriminatory conduct would of course violate the FCC’s rules, those alleging digital discrimination do not need to document discriminatory intent. Broadband providers filed suit against the FCC, arguing that the Commission’s rules exceed its authority. The providers argue that Congress intended to limit digital discrimination to cases where intentional discrimination can be proved. This reading is grossly misguided for two main reasons. First, this reading is at odds with longstanding universal service policies. Second, this reading of the IIJA would limit any meaningful progress in combating digital discrimination.