Yaron Litwin, a digital safety expert at Canopy, recently discussed how parents can ensure the safety of their children on new smartphones during the holiday season. However, a new set of federal rules aimed at combating “digital discrimination” has raised concerns among free-market advocates, who argue that it could inadvertently target telecommunications companies. These rules, set to take effect in mid-January, have faced opposition from a coalition of conservative and libertarian-leaning groups, who have urged Congress to reconsider the regulations.
The Federal Communications Commission (FCC) introduced these rules in response to the 2021 Bipartisan Infrastructure Law, which allocates $65 billion to expand broadband access. The law also mandated the FCC to establish regulations that would ensure equal access to high-speed broadband, regardless of factors such as race, ethnicity, color, religion, or national origin. FCC Chair Jessica Rosenworcel hailed the law as the “first bipartisan civil rights law focused on the digital age.”
In November, after the FCC approved the rules, Rosenworcel stated, “Congress was explicit – these rules have to ‘facilitate equal access to broadband.’ As part of this goal, Congress also told us we need to prevent and eliminate digital discrimination of access.” Rosenworcel emphasized that “digital discrimination” encompasses both disparate treatment and disparate impact, broadening the scope of what constitutes discriminatory practices.
However, critics argue that the new rules could lead to frivolous lawsuits and enable leftist activists to exploit telecommunications companies. A group of two dozen free-market organizations penned a letter to Congress, expressing concern over the potential for abuse. The letter highlights a shift from requiring evidence of intentional discrimination to demonstrating different usage rates among various groups. This change, according to the letter, empowers activists to threaten lawsuits against companies that attempt to expand broadband access in unserved areas.
The letter was signed by prominent heads and top staffers from organizations such as Americans for Tax Reform, American Commitment, and the Competitive Enterprise Institute. They argue that the FCC has exceeded its bounds and utilized a one-page authorization in the infrastructure law to justify the extensive 218-page set of regulations, which they claim will benefit their activist allies.
The FCC’s new powers include increased authority to regulate internet service providers on matters like network maintenance, internet speed, late fees, pricing, and mandatory arbitration. These powers have raised concerns among critics, who argue that the FCC’s actions constitute bureaucratic overreach and may result in economic turmoil.
The FCC has declined to comment on the letter but has referred to Rosenworcel’s statement regarding the digital discrimination standards. The rules are set to go into effect 60 days after the commission’s approval in November, which passed through a 3-2 vote. The FCC will have the ability to investigate potential instances of discrimination in broadband access, facilitate mediation, and penalize companies found to be in violation of the rules. Additionally, the FCC has established an online portal for consumers to submit discrimination complaints.
To ensure a comprehensive approach, the FCC created the Task Force to Prevent Digital Discrimination, which held public meetings in cities like Baltimore, Los Angeles, and Topeka. The task force’s findings highlighted gaps in access for low-income, rural, Tribal, and minority communities. It also revealed that the digital divide often aligns with patterns of residential redlining established in the National Housing Act of 1934. Many of the communities lacking adequate broadband access today also suffer from long-standing residential segregation and economic disadvantages.
The implementation of these controversial rules has sparked a heated debate among advocates, with free-market groups raising concerns over potential lawsuits and the FCC’s expanded regulatory powers. As the regulations are set to take effect, the impact on broadband access and potential legal battles remains to be seen.
