The FCC’s New Racial Broadband Rule

Original article here.

The Federal Communication Commission’s new Democratic majority is up and running and firing in all directions. Next week the Commission plans to vote on a proposed “digital discrimination” rule. In the name of equity, Democratic Commissioners will make internet service worse.

The 2021 infrastructure bill instructed the FCC to prevent “digital discrimination” of broadband access “based on income level, race, ethnicity, color, religion, or national origin.” While the statutory language is broad, the agency’s proposed rule stretches it further to force broadband providers to prioritize identity politics.

The FCC concedes that it has found “little or no evidence” indicating “intentional discrimination by industry participants.” No problem. The agency will still hold broadband providers liable for actions or “omissions” that result in a disparate impact on an identity group. That means providers could be dunned if regulators or third-party groups (read: progressive lobbies) identify statistical disparities in a long list of “covered service elements” even if they don’t intentionally discriminate.

The rule would give the FCC power to micromanage the industry. Marketing materials that feature too many white people could be ruled discriminatory. Companies could be forced to scrap credit checks that cause more minorities to be rejected for smartphone leasing plans.

Providers could even be punished for charging the same prices to all customers since their rates might have a disparate financial impact on minorities. The FCC could likewise prohibit low-cost wireless plans that include data caps because these are selected more often by people with lower incomes. If you think these are unlikely, you haven’t been watching the left.

Wireless carriers might also be prohibited from building out 5G networks in suburbs and city downtowns before inner cities and rural areas. Companies don’t have unlimited capital so they typically prioritize network upgrades in areas where they can earn a higher return on the investment, which they then use to finance improvements in lower-income and rural areas.

Yet companies wouldn’t be allowed to invoke profitability concerns in defense of practices with a disparate impact. They would have to prove that their policies are “justified by genuine issues of technical or economic feasibility.” They couldn’t claim that an alternative, allegedly less discriminatory, policy would cause them to lose money.

The FCC is arrogating to itself far more sweeping power than its recently resurrected “net neutrality” rule that seeks to regulate the internet under Title II of the 1934 Communications Act. Like net neutrality, the digital discrimination rule is legally vulnerable.

Twenty-eight Senate Republicans on Friday sent a letter to Chair Jessica Rosenworcel explaining that the Supreme Court has consistently held that the infrastructure law’s phrasing of “based on” indicates legislative intent to condition liability on a showing of disparate treatment, not disparate impact.

That’s true, but Senate Republicans are playing catchup because they let the identity language into the infrastructure bill. Industry made a Faustian bargain by supporting the bill because it included some $65 billion in subsidies for broadband. The FCC is now seeking Faust’s payment.