Heralded as a rare bipartisan achievement, a spending bill to expand internet access is revealing devils in its details.
When Congress and President Joe Biden enacted $65 billion worth of broadband subsidies as part of the 2021 bipartisan infrastructure law, it also directed the Federal Communications Commission to adopt new rules to prevent “digital discrimination” in the rollout of high-speed access. But in crafting those new rules, the FCC’s decision to go beyond banning “discriminatory intent” on the part of providers and instead prohibit “disparate impact” on broadband adoption has revealed decidedly partisan cracks in the program’s implementation.
In the same year the legislation was passed, the Pew Research Center found that 23% of the public did not have access to a broadband connection at home. Reasons for the so-called digital divide include geographic impediments and socioeconomic hurdles. The issue came to the forefront of political agendas after COVID-19 lockdowns pushed people increasingly online. The gap is widely believed to put those without home internet access at a disadvantage regarding learning, employment, and even healthcare opportunities.
Citing the consensus in its legislation that “a broadband connection and digital literacy are increasingly critical to how individuals participate in the society, economy and civil institutions of the United States,” Congress passed the spending bill that Biden signed into law on Nov. 15, 2021.
Former New Orleans Mayor Mitch Landrieu, until this month Biden’s point man for implementing the $1.2 trillion law, told reporters last year, “It is arguably bigger than what happened in the New Deal, and I think it’s bigger than what happened in the Eisenhower administration when they built the highway system.”
Harold Feld, senior vice president at progressive think tank Public Knowledge, praised the bill and its prohibition on discrimination, writing, “Congress swiftly moved to fight digital redlining — the practice of broadband providers systemically underinvesting in communities of color and lower-income communities — by requiring the FCC to create rules ending this behavior.”
While there was broad agreement for federal spending to close the digital divide, the details of how to distribute the funds, a task delegated to the FCC, are hitting a partisan snag.
Upon adoption of the rules last fall, Democratic FCC Commissioner Anna M. Gomez released a statement saying, “As we make historic investments in our nation’s infrastructure that will impact generations to come, we must prioritize digital equity.” In a lengthy dissenting statement, Republican Commissioner Brendan Carr called the rules “a framework that gives the FCC nearly limitless power to veto private sector decisions.” The rules were adopted along party lines, with the three Democratic commissioners approving and the two Republican commissioners objecting.
Previously, groups or individuals accusing companies of violations would have to prove intentional discrimination by providers to trigger a violation of civil rights law. However, under the new rules, government or third-party plaintiffs would only need to show that different groups of people use the same services at different prices. This stems from the inclusion of “income level” among the prohibited categories previously limited to “race, ethnicity, color, religion or national origin.”
In December, a coalition of 25 free-market and conservative groups sent a letter to Congress warning of the FCC’s statutory overreach in shifting the standard for violating the law. The letter cautioned that the move would incentivize a “shakedown of any telecommunications company that tries to expand broadband services to any underserved areas under the threat of lawsuits.” The groups claim this will “chill investment” in new broadband infrastructure and discourage participation from potential providers in the Broadband Equity, Access, and Deployment, or BEAD, funding program, therefore leaving federal efforts to close the digital divide unfulfilled.
Curt Levey, president of the conservative nonprofit group Committee for Justice, told the Washington Examiner that the FCC’s approach will “harm consumers by ensuring that fewer companies provide broadband access and that the $65 billion Congress allocated, under the bipartisan infrastructure law, to expand broadband access goes less far.” He continued, “All of that means less broadband access at a higher price for consumers.”
Critics of the rules charge the new regulations will also allow the FCC to micromanage what should be private business decisions by broadband providers, including fees and network management. They think the 218 pages of new regulations go beyond what Congress empowered the agency to do and urge lawmakers to rein in the proposal.
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If Congress demurs, the rules will soon go into effect. The FCC will review consumer complaints through a new portal. If the agency finds violations, it can facilitate mediation and issue fines to providers.
Many telecom policy observers and legal experts predict constitutional challenges to the new rules to be brought to court. Those efforts jeopardize one of the Biden administration’s signature achievements headed into a reelection year for the president.
