Phoenix Center for Advanced Legal & Economic Public Policy Studies

The Federal Communications Commission recently voted to subject the Internet, once again, to legacy public utility telecommunications regulation originally designed for the old Ma Bell monopoly. While the FCC’s new rules do not push so far as to regulate retail rates (though they do regulate wholesale termination rates), the FCC’s rules open the door to potential retail rate regulation of broadband services by the states.

Section 706 of the Telecommunications Act of 1996 has played a recurring supplemental role in the Federal Communication Commission’s (FCC) efforts to reclassify Broadband Internet Access Services as a Title II common carrier telecommunications service under the auspices of Net Neutrality. Section 706 instructs the Commission to encourage the “reasonable and timely” deployment of broadband services to all Americans.

The Federal Communications Commission plans to adopt both a disparate treatment (intent) and disparate impact (effects) analysis to determine whether there is any discrimination of internet access.

Buried deep within the stunning array of broadband subsidy provisions contained in the Infrastructure Investment and Jobs Act of 2021 lies Section 60506—labeled “Digital Discrimination”—which requires the Federal Communications Commission (FCC) to issue rules to prevent “digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin,” while taking into account the issues of “technical and economic feasibility.”1 Although Section 60506 perhaps represents a sign of our political times,2 there simply is no credible evidence of a racial disparity in

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.

The debate over how internet platforms moderate content has reached a fever pitch. To get around First Amendment concerns, some proponents of content moderation regulation argue that internet platforms should be regulated as “common carriers”—that is, internet platforms should be legally obligated to serve all comers without discrimination. As these proponents regularly point to communications law as an analytical template, it appears that the term “common carrier” has become a euphemism for full-blown public utility regulation complete with a dedicated regulator.

This study focuses on broadband deployment over the years 2014- 2020 in Tribal and non-Tribal census tracts using the Federal Communications Commission’s Form 477 data to quantify progress. This “Tribal Gap” is measured as the difference in average broadband availability between Tribal and non-Tribal census tracts. Unmatched and matched samples are used, and a sample of census tracts within 30 miles of a Tribal area is also analyzed with and without matching.

To receive subsidies to expand broadband to unserved areas under the Broadband Equity, Access, and Deployment (BEAD) program provided by the Infrastructure Investment and Jobs Act (IIJA), the National Telecommunications and Information Administration (NTIA) requires states to implement plans to ensure middle-class affordability. Since the NTIA did not conclude that broadband was unaffordable for middle-class households, the threshold question is whether broadband is affordable to the middle class. Affordability, which has no formal definition, is defined by reference to adoption.