What Do We Mean When We Say Digital Discrimination?

Back in 1996, Congress amended the Communications Act to include antidiscrimination as part of American telecommunications policy. The Infrastructure Investment and Jobs Act reinforced this initiative, directing the Federal Communications Commission to adopt rules “to facilitate equal access to broadband,” including by “preventing digital discrimination of access.” To fulfill this mandate, the FCC has placed a notice of proposed rulemaking on the agenda for its December 21 open meeting. But a key question is how one defines “discrimination.” The breadth of the agency’s proposed definition could have unintended consequences, for the telecommunications industry and for antidiscrimination law generally. The FCC has proposed adopting the broader “disparate impact” theory as part of its definition of digital discrimination. But the potential breadth of disparate impact liability is concerning, because so many innocuous (or even important) decisions can have different consequences for different populations. 

[Daniel Lyons is a nonresident senior fellow at the American Enterprise Institute, where he focuses on telecommunications and internet regulation. He is also the associate dean of academic affairs and a professor of law at Boston College Law School, where he teaches telecommunications, administrative, and cyber law, among other courses.]