To date, there is no evidence of intentional discrimination in broadband deployment on account of income, race, or ethnicity. Nonetheless, debate has arisen over whether the Commission's rules should go beyond preventing intentional discrimination to impose liability on broadband Internet service providers (ISPs) on the basis of disparate impact – that is, on the basis of practices that are acknowledged to be nondiscriminatory on their face, but which are claimed to result in adverse effects on legally protected groups.
The Commission should follow Congress's instructions in the Infrastructure Investment and Jobs Act of 2021 by barring intentional discrimination. To the extent that there are, in fact, any areas disparately impacted by broadband deployments or practices, whether unintended or beyond ISPs' control, Congress and the Commission ought to subsidize, on a targeted basis, buildouts to ensure equal access and take other properly targeted remedial measures that will accelerate broadband deployment to all Americans.
President May and I also offered our views regarding the makeup of the Commission's forthcoming anti-discriminatory model policies and best practices for state and local governments in in our November 30 Perspectives from FSF Scholars, "FCC Should Rely on Pro-Deployment Actions to Avoid Digital Discrimination":
[T]he FCC should decline to include disparate impact liability in any model policies, best practices, or rules that it develops. Instead, the Commission should focus proactively on ways for state and local governments, ISPs, and local communities to identify unserved or underserved areas and help get them connected. And the Commission should recommend that states and local governments accelerate deployment, including by reducing permit approval time lags as well as by eliminating any other procedural impediments to constructing broadband infrastructure.
Both Perspectives papers go into more detail regarding recommended next steps for the Commission. Expect FSF scholars to further address the Commission's proposed rules regarding digital discrimination in 2023.