Internet access and fast broadband are essential for participating in modern life. The Covid-19 pandemic in 2020 revealed the seriousness of what was already known – that a severe “digital divide” exists in the United States. Citizens in low economic communities, rural areas, and Tribal territories often suffer from spotty, slow, and even non-existent internet access. Most of these historically unserved and underserved communities parallel those that suffered from the “redlining” created by the National Housing Act of 1934. During the closure of many services during the pandemic, residents in these areas had intermittent access to educational, health and social services. Internet was needed for online classes so that students could participate in lessons and do their homework. Many health services were only available through telehealth medicine. Social services, such as applying for financial assistance or accessing information, were only available with computer access. Job searches moved to being mostly online. Cell phone usage was not reliable enough for people to accomplish the tasks they needed to do.
Therefore, in November of 2021, Congress passed the
Bipartisan Infrastructure Law. This law
invested $65 billion dollars in universal broadband access which would make the
internet both available and affordable, especially in those underserved
areas. Section 60506 of the Bipartisan
Infrastructure Law states that “[i]t is the policy of the United States that,
insofar as technically and economically feasible, subscribers should benefit
from equal access to broadband.” The law
then directs the Federal Communications Commission (FCC) to “adopt rules to
facilitate equal access to broadband internet access service” that “[prevent] digital
discrimination of access based on income level, race, ethnicity, color,
religion, or national origin; and [identify] necessary steps for the Commission
to take to eliminate discrimination.”
Two years later, on November 15, 2023, the FCC officially adopted these
rules. Chairwoman Rosenworcel and
Commissioners Starks and Gomez wrote individual statements in support of the
rules while Commissioners Carr and Simington both issued dissenting statements.
These FCC rules define “digital discrimination of access” as
“policies or practices, not justified by genuine issues of technical or
economic feasibility, that differentially impact consumers’ access to broadband
internet access service based on their income level, race, ethnicity, color,
religion or national origin, or are intended to have such differential impact.”
These impacts can arise from discriminatory intent, or they can be unintentional
but still have a discriminatory effect. The
rules do take into account cost to the providers for delivering services
as well as their technological ability to do so. In general, the standard for these feasibilities
is whether other, similar providers are able to serve these areas at the same
level and at a more reasonable price.
The source for the Congress’s and the FCC’s commitment to
universal access is rooted in the Communications Act of 1934, which addressed wire and radio communication,
and the Telecommunications Act of 1996, which expanded the law to include telecommunications.
The text of the report and rules, as well as the statements
of the commissioners can be found here.
