The FCC Is Trying To Stop Discrimination In Broadband Deployment. Telecoms And Republicans Are Big Mad About It

For decades, big ISPs like AT&T have refused to upgrade low income and poor communities to fiber, despite billions in subsidies, regulatory favors, and tax breaks that were supposed to accomplish precisely that. Groups like the National Digital Inclusion Alliance (NDIA) have released studies on cities like Cleveland and Detroit, documenting how this discrimination lines up with 30s redlining" efforts.

Section 60506 of the 2021 infrastructure bill dedicated $65 billion in new broadband subsidies. But it also tasked the FCC with creating rules that would prevent future broadband deployment discrimination. The FCC came in just under the wire for Congress' November 15 deadline, finally unveiling its full rules yesterday.

I've spent much of the last few weeks talking to consumer groups, activists, and telecom policy experts about the rules.

The general consensus is that it's a hugely welcome and long overdue improvement, even though the FCC stubbornly refuses to name and shame ISPs with long histories of clear discrimination (wouldn't want to upset key domestic surveillance allies), the complaint process isn't transparent, and many are worried that this FCC, with its sketchy track record on consumer protection, won't consistently enforce them.

FCC boss Jessica Rosenworcel had this to say about the new rules:

These rules are strong. When you consider Congress explicitly directed us to prevent"
and eliminate" digital discrimination of access, they had better be. But I would also argue that they are fair and reasonable."

Again, these rules are a welcome and long overdue admission by the government that minority and low income Americans have been systematically discriminated against when it comes to broadband deployment, something that's documentable and indisputably true, despite industry denials.

Late last year you'll recall The Markup released a story showing that not only do big ISPs systematically discriminate in deployment, they charge low income and minority customers more money for slower service than less diverse, more affluent neighborhoods. It's not really a debate.

One thing consumer groups are happy about: the rules govern both disparate treatment" (spotty broadband deployment caused by active, provable discrimination) and disparate impact" (spotty broadband deployment that falls along discriminatory lines regardless of intent). Telecom execs don't often put discriminatory intent in emails to staff, so proving discriminatory intent isn't always possible. Other agencies like the NTIA had advised the FCC adopt this broader approach.

Strong rules are needed to identify and remedy unequal access to Internet service, no matter what the cause may be," NTIA Assistant Secretary of Commerce for Communications and Information Alan Davidson wrote.Rules that combat these inequities will bring lasting relief for vulnerable communities that historically have been left behind online."

Giant incumbent telecom monopolies with decades of discrimination under their belt are unsurprisingly upset. Key trade groups have already threatened to sue over the rules, and seem particularly chaffed that the rules govern discrimination in broadband pricing. They insist the rules interfere with the practical business choices and profit-related decisions that sustain a vibrant and dynamic free enterprise system."

Here in reality, U.S. broadband is anything but a vibrant and dynamic free enterprise system. It's a failed market, dominated by a handful of politically powerful regional mono/duopolies, who hoover up untold billions in taxpayer subsidies for networks they routinely fail to fully deploy. All protected by layers upon layers of state and federal corruption policymakers like to pretend doesn't exist.

Enter the GOP, which was quick to hyperventilate about the rules at industry's prompt. Senator Ted Cruz and FCC Commissioner Brendan Carr were particularly incensed, and quickly got to work peppering the media with false claims that the rules were a dystopian Biden administration attempt to exert government control over virtually all aspects of the Internet," despite it being a congressional mandate.

Recall, Republicans largely voted against the infrastructure bill, despite the fact that they still take credit for the numerous broadband projects it's funding among local constituents.

Again, I'm not particularly sure this FCC will consistently enforce the rules (assuming they survive industry legal challenge) or bring any meaningful penalties against big companies, since that's never been the agency's strong suit. And the FCC's failure to name and shape specific ISPs or address very clear past discrimination is a bit feckless. Also, with FCC leadership shifting every election, it's extremely unlikely that a Trump-run FCC would ever bother to enforce the rules.

At the same time, absolutely any effort to hold big telecom accountable for shitty behavior is treated by the GOP as if it's some kind of dystopian hellscape of government overreach (though this is the same GOP that wants to abuse FCC authority to bully social media companies that moderate, however sloppily, the party's race-baiting political propaganda).

Still, simply having the U.S. government overtly acknowledge a generation of discrimination in broadband deployment remains a big deal. It at least attempts to begin to rebalance the scales after generations of redlining and government apathy, something predatory regional monopolies and their loyal puppies in Congress clearly aren't too keen on.