FCC proposes rules to tackle digital redlining

The Federal Communications Commission (FCC) is doubling down against digital discrimination. Chairwoman Jessica Rosenworcel this week released draft rules that would require ISPs to offer equal access to broadband in their service area.

The Report and Order comes as the Infrastructure Investment and Jobs Act (IIJA) nears its two-year anniversary. In addition to allocating funds for broadband and other infrastructure projects, the IIJA requires the FCC to adopt rules against broadband discrimination practices by November 15, 2023.

Last year, the FCC established a task force focused on creating policies that prohibit broadband deployment discrimination based on income, race and ethnicity. Since its formation, the task force conducted a series listening sessions across the country to hear local perspectives on digital redlining.

According to Rosenworcel, the FCC’s definition of digital discrimination includes disparate impact, as there is “little to no evidence” that intentional discrimination from ISPs “is a meaningful contributor to disparities in internet access.”

“As the law requires, we accept genuine reasons of technical and economic feasibility as valid reasons why a broadband provider may not offer equal access to their networks,” she said at the 41st Annual Everett C. Parker Lecture this week.

Rosenworcel added the FCC will be reviewing those reasons on a case-by-case basis. The agency is also seeking comment on new reporting requirements “that could give a clearer picture of recently completed deployment, upgrade, and maintenance projects.”

“The hope is that this process could help remove impediments to equal broadband access before they even develop,” she said.

Impact on ISPs and BEAD

New Street Research Policy Analyst Blair Levin said while the FCC’s rules could have a “theoretical impact” on projects funded by the Broadband Equity, Access and Deployment (BEAD) program, “it will not impact the reach or timing of the deployments.”

“The theoretical impact would be the FCC telling an ISP that their deployment plans would cause a disparate impact to a group identified by the statute,” he told Fierce Telecom.

But such a case “will never happen” for a few reasons. One, the state – not the ISP – will define the area to be served. So, if a deployment resulted in a disparate impact, “it is due to how the state drew the map, not how the ISPs decided to deploy.”

Further, BEAD-targeted areas are all likely to be served or underserved, which Levin said is “clear evidence” that an area’s lack of service “is a function of economics, which is a defense against any allegation of digital discrimination.”

Also, the stakeholders will have an incentive to deploy as quickly as possible. If the FCC were to intervene after the state has awarded funds to a grantee, that would slow down the build process.

“I don't see any incentive for the FCC to do so,” Levin added.

Joe Kane, director of broadband and spectrum policy at ITIF, thinks the FCC is being “far more aggressive than the IIJA requires or permits” with its digital redlining regulations.

He said including disparate impact in the definition of digital discrimination would likely work counter to “the policy of public-private cooperation embodied by BEAD.”

Instead, the rules may create “an antagonistic relationship in which ISPs can be held liable for differences in broadband they did not create or intend.”

Kane noted the FCC in its order declined to establish safe harbors for its rules, which is “problematic” because it means entities “can't predict whether their compliance with BEAD will save them from FCC liability.”

“They have to act first and then make their case that it wasn't feasible to disobey the terms of the BEAD program,” he told Fierce. “Faced with that kind of risk, and the cost of defending themselves even if they win, the marginal broadband provider might decide not to act at all.”