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FCC creates highly politicised rules aimed at tackling ‘digital discrimination’

The US communications regulator has adopted a set of new rules that will allow it to punish broadband providers it feels are discriminating against certain consumers.

Scott Bicheno

November 16, 2023

4 Min Read

As with so many top-down social engineering initiatives the superficial aims are laudable but many questions remain about its execution and possible unintended consequences. The most obvious question whenever ‘discrimination’ is the matter at hand is how to determine such a thing has happened. Discrimination is rarely stated or overt, so identifying it often relies on reverse engineering a disliked outcome and concluding it took place as the result of explicit design.

To be fair to the FCC, it does seem cognisant of the balancing act involved in enforcing these rules. Here’s the bit of the announcement that gets to the heart of the matter.

The rules define “digital discrimination of access” as “Policies or practices, not justified by genuine issues of technical or economic feasibility, that (1) differentially impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, color, religion or national origin, or (2) are intended to have such differential impact.”  As the law requires, the FCC will consider arguments that legitimate business impediments preclude equal access to broadband service in particular communities.

“Two years ago today, Congress passed the Bipartisan Infrastructure Law,” said FCC Chairwoman Jessica Rosenworcel. “This law is a big deal. It made a $65 billion investment to ensure that everyone, everywhere in the United States has access to broadband… But Congress knew that more than just this set of deployment and affordability initiatives was needed. That is why in Section 60506 of the Bipartisan Infrastructure Law Congress directed this agency to prevent and eliminate digital discrimination.”

“Eradicating digital discrimination anywhere will empower individuals everywhere,” said FCC Commissioner Starks. “This is a proceeding that will impact generations of Americans, and work to ensure a more just and equitable future for tomorrow. I’m proud to approve.”

“In making this historic investment in our country and our future, Congress recognized two things that many of us have long known,” said FCC Commissioner Gomez “First, high-speed broadband is essential to full participation in modern life in the United States and we must invest to ensure that everyone has affordable, reliable access. And second, we must ensure that equal access to broadband is enjoyed by all, particularly communities that have been historically underserved.”

Even by the standards of the partisan FCC, this is clearly a highly politicised initiative, heavily influenced by a broader social engineering agenda. The FCC typically has five commissioners; three aligned to the national governing party (above) and two aligned to the opposition. Here’s what the two Republican-aligned Commissioners had to say on the matter.

“The Biden Administration’s entire approach to the Internet—its broadband agenda, if you will— can be boiled down to one word: control,” said Commissioner Carr. “You can see it with the Biden Administration’s call for Title II utility-style regulation of the Internet—a move that two of President Obama’s former Solicitors General described as an enormous and transformative expansion of the government’s authority over the Internet.

“You can see it in the Biden Administration’s campaign to pressure Internet companies into censoring Americans’ protected political speech—a coordinated effort that is now on appeal to the Supreme Court. And you can see it in the Biden Administration’s demand that the FCC adopt these “digital equity” rules today—a framework that gives the FCC a nearly limitless power to veto private sector decisions.”

“I have no choice but to dissent from this order,” said Commissioner Simington. “It will have the Commission run a permanent inquisition against the broadband industry, creating a climate of fear and uncertainty when we should instead be encouraging greater investment and innovation.

“Under the digital equity rules we are adopting today, every business practice or decision, by any company remotely connected to the provision of broadband, is prohibited unless any disparate impact is unavoidable due to “technical or economic infeasibility.” This is an impossible standard to meet, and the only way for a company to even attempt to comply is to practice racial, ethnic, and religious discrimination in every business decision.”

The dissenting positions draw on the eternal political schism between equality of opportunity and equality of outcome, the latter often referred to as ‘equity’ in the US. These new rules seem to seek equality of outcome and the concern is that their enforcement will take insufficient account of the numerous factors, many completely innocent and coincidental, that may lead to a perceived unequal outcome. They also seem to give the FCC absolute power of enforcement.

“America’s broadband providers are working every day to connect and serve all communities,” said Jonathan Spalter, CEO of US broadband trade body USTelecom. “When our overwhelming focus must be on closing the digital divide and incentivizing deployment, the Commission instead is taking overly intrusive, unworkably vague, and ultimately harmful steps in the wrong direction. Unfortunately, this order is counter to what Congress intended with the Infrastructure Act to facilitate equal access.”

Spalter’s words seem to echo the position of much of the industry, as well as many other ostensibly neutral commentators. But the WSJ made a good point in a recent editorial on the matter; the industry allowed itself to be bribed into accepting the infrastructure bill, despite it indicating this move towards equity, and now the other side of that bargain is being cashed in. Along with the resurrection of the net neutrality issue, these new rules will ensure the US telecoms sector remains highly politicised for the foreseeable future.

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About the Author(s)

Scott Bicheno

As the Editorial Director of Telecoms.com, Scott oversees all editorial activity on the site and also manages the Telecoms.com Intelligence arm, which focuses on analysis and bespoke content.
Scott has been covering the mobile phone and broader technology industries for over ten years. Prior to Telecoms.com Scott was the primary smartphone specialist at industry analyst Strategy Analytics’. Before that Scott was a technology journalist, covering the PC and telecoms sectors from a business perspective.
Follow him @scottbicheno

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