Digital Discrimination Under Disparate Impact: A Legal and Economic Analysis

With the Infrastructure Investment and Jobs Act of 2021 providing sufficient funding to deploy broadband to nearly every household in the nation, the Digital Discrimination provisions contained in Section 60506 of the statute are a curiosity. Nonetheless, Congress directed the Federal Communications Commission to write rules implementing the statutory provision. The FCC recently released draft final rules implementing Section 60506 in anticipation of its November 2023 Open Meeting which adopt a somewhat standard disparate impact analysis. In this paper, we conduct an empirical analysis of racial discrimination in broadband access motivated by the caselaw on disparate impact analysis. Using data from the FCC’s new broadband fabric data, we test for differences in broadband availability between predominantly minority and majority census block groups and find no evidence of digital discrimination against minorities. In fact, we find that, if anything, minority groups have better access to broadband than do Whites, on average. Accordingly, a prima facie case of disparate impact for “digital discrimination of access” is unlikely to be empirically supported on racial grounds.