Who’s Afraid of Disparate Impact?

Over the past year, I’ve focused on investigating why the internet connection at your house is slow and what you can do about it. Tucked deep in the Infrastructure Investment and Jobs Act (IIJA), signed by President Joe Biden in 2021, is a short provision giving the Federal Communications Commission broad leeway to fundamentally reshape how America connects to the internet. Under a section titled “Digital Discrimination,” the legislation tasks the FCC with adopting “rules to facilitate equal access to broadband internet access service, taking into account the issues of technical and economic feasibility presented by that objective, including … preventing digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin.” The section itself is short—under 400 words—and relatively light on detail, leaving it largely up to the FCC to decide how much power it wants to grab for itself to close the digital divide. Various actors have rushed into that void of legislative ambiguity, forcefully advocating for their own agendas. The crux of this fight is over a concept called “disparate impact” and whether the FCC should use it to identify whether a broadband provider has engaged in discrimination. The idea behind disparate impact is that discrimination isn’t always explicit. So, if an institution’s policies have created a situation where certain protected groups experience markedly worse outcomes than others, this impact matters just as much as any intentionally biased practices.