The battle to stop broadband discrimination has only just begun

For the better part of a generation, low-income and minority US communities have struggled to gain access to affordable broadband. It’s not an accident: numerous studies indicate that major internet service providers, or ISPs — despite billions in taxpayer subsidies — have consistently avoided low-income, minority, and tribal neighborhoods when it comes to affordable fiber upgrades. 

It’s something federal policymakers historically haven’t done much about — until now. The 2021 infrastructure bill set aside $42.5 billion for broadband. It also tasked the FCC with crafting new rules taking aim at “digital discrimination.” On November 15th, the agency obliged, passing rules banning ISPs from broadband discrimination based on income, race, and religion.

“These rules are strong,” FCC boss Jessica Rosenworcel said in a statement. “I am grateful to so many in the civil rights community who have helped us give it meaning and the companies that worked with us to improve our process.”

But while activists are thrilled the government has formally acknowledged decades of inequity, they say the FCC went out of its way to avoid criticizing ISPs that have historically discriminated. They also worry that, at an agency with a shaky track record on consumer protection, the rules may not be consistently enforced.

A problem generations in the making

US broadband has long suffered from a lack of regional competition. Most Americans live under either an internet monopoly or a duopoly, resulting in patchy coverage, slow speeds, terrible customer service, and some of the highest prices for broadband in the developed world. 

The problem is particularly pronounced in low-income, minority, tribal, and other marginalized communities that have long been victims of redlining, or institutionalized discrimination in everything from home loan approval to the delivery of next-generation infrastructure. 

In 2017, minority residents of Cleveland and Detroit filed formal complaints with the FCC, noting they were consistently paying AT&T premium prices for sluggish DSL, while neighbors in more affluent, less diverse communities received faster, cheaper service. The petitioners’ broadband was so slow, it hampered the ability of their children to access online homework.  

“Redlining, in any form, is often framed as ‘disinvestment in communities of color,’” Paul Goodman, a lawyer at the Center for Accessible Technology, told The Verge. “That’s only half the picture. Redlining is an investment transfer — money that should go to communities of color and low-income communities is instead redirected to wealthier, whiter communities.”

The lack of affordable internet access severs these communities from modern healthcare, education, and employment opportunities. The problem was highlighted during peak covid-19 lockdowns, when low-income families resorted to huddling in the dirt outside fast food restaurants just to attend online class.

“The digital divide is in many ways a side effect of redlining and the ‘urban renewal’ projects of the 1970s, because broadband has been deployed where good infrastructure exists, and for decades infrastructure investments were determined by racist government policy,” Adria Tinnin, director of race equity policy at The Utility Reform Network, told The Verge. “In other words, it’s not that an ISP has an explicitly racist policy, it’s that they are building on top of infrastructure that was determined by racism, thereby reproducing the negative effects.”

Discrimination has long been present in the construction of US highways and the delivery of reliable and affordable electricity. The deployment of next-generation fiber often runs parallel with both, shaped by decisions made decades or generations earlier.

The National Digital Inclusion Alliance (NDIA) has been tracking the problem for years. The organization closely studied broadband deployment gaps in Cleveland and Detroit and found large local ISPs consistently refused to upgrade broadband networks in minority neighborhoods or areas where poverty rates exceed 35 percent.

ISPs like AT&T have repeatedly denied they ever engaged in any form of digital discrimination. In 2021, the company claimed, without evidence, that the NDIA’s findings were based on “antiquated, inaccurate and cherry-picked data.” 

While it’s no surprise that publicly traded telecoms are often fixated on ensuring an adequate return on their investment, these companies have been given untold billions in regulatory favors, subsidies, and tax breaks in exchange for the promise of even broadband deployment. While ISPs may deny that they engage in digital discrimination, the data keeps getting clearer. 

Last year, The Markup studied 800,000 broadband promotions across 38 cities and found that big ISPs not only refuse to upgrade poor and minority neighborhoods but they also charge these customers more money for slower speeds than those in more affluent and less diverse areas. In many locations, the broadband coverage gaps line up perfectly with historic redlining data.

Fixing the problem has proven to be a complicated mess, in part because the government has historically failed to accurately map affordable broadband availability, rein in sector consolidation, or share broadband pricing data. Big ISPs have long fought against improved broadband mapping or public price comparisons for fear it would highlight market failure.

The telecom industry has already threatened to sue the FCC over the new rules and is particularly incensed at the government’s plan to tackle discriminatory broadband pricing. Industry-allied GOP senators wrote the FCC to complain the rules would harm “the practical business choices and profit-related decisions that sustain a vibrant and dynamic free enterprise system.”

But real-world data indicates that US broadband is far from a vibrant and competitive free market. In reality, it’s a collection of powerful regional monopolies and duopolies that often lobby the government into apathy as they charge captive subscribers a premium for patchy, expensive internet access. It’s a problem that’s always worse for marginalized Americans. 

A very promising start, but activists say it’s not enough

Simply creating a framework that tethers historical discrimination to modern broadband redlining is a huge step forward, opening the door to meaningful action down the road, said Shayna Englin, director for the LA-based Digital Equity Initiative.

“It could be a lot stronger in a myriad of ways,” Englin said. “But I will say, we are absolutely celebrating where it landed on the definition of discrimination and access. That makes a world of difference and opens up at least, as far as we see, new avenues that are actionable.” 

NDIA executive director Angela Siefer shared those sentiments in comments to The Verge, noting that the FCC’s decision to craft rules that cover both “disparate treatment” (inequity caused by active, provable discrimination) and “disparate impact” (inequity in deployment, regardless of intent) will be historically useful moving forward. 

Short of executives putting discriminatory intent in an email to staff, intentional discrimination in broadband deployment can be difficult to prove. Including guidelines that cover disparate impact will be helpful to police systemic discrimination, regardless of conscious intent, activists say. 

“The Digital Discrimination draft rules are not all we wanted but we got the most important — the definition of digital discrimination includes disparate impact,” Siefer said. “This was not easy. NDIA spent a ridiculous amount of time on this because it is so important. And we got it. This is a huge win.”

At the same time, many digital equity activists contacted by The Verge expressed concern that the order doesn’t go far enough to penalize existing bad actors and may not be consistently enforced by an agency with a rocky history of standing up to politically powerful telecom giants closely tethered to US domestic surveillance and first-responder systems.

Consumers will soon have a new system to file discrimination complaints with the FCC, which will be forwarded on to the ISP. If the ISP doesn’t address the concerns, the agency says its enforcement bureau will step in to take action and will conduct “self-initiated Commission investigations” when warranted by available data. Past discrimination will see no penalties. And the process will largely rely on these complaints rather than proactive FCC investigations, although the FCC says it will take action if consistent patterns reveal themselves.

“Nothing in these rules would address historical, existing and the ongoing redlining and discrimination against BIPOC and low income communities by large corporate ISPs,” Brandon Forester, a media and telecom reform activist at MediaJustice, told The Verge. “The FCC expressly declined to look at or eliminate existing discrimination.”

Forester noted that the FCC complaint process is cumbersome and not publicly transparent, and consumers stuck on slow, expensive broadband may not even understand they’re being discriminated against. Given the FCC voting majority shifts with the winds of each presidential election, future, consistent action on complaints is also far from certain. 

“Even if a complaint rises to the level of the FCC intervening, we still have a secret process that isn’t public, won’t remediate the discrimination, and at best the FCC may quietly fine the ISP,” Forester said. “So there’s very little disincentive for ISPs who are discriminating to change their behavior. Secret fines and settlements, without any real remediation for the discriminatory behavior, simply becomes a cost of business calculation.”

Tackling monopoly power head-on

Activists say that to truly address discrimination in broadband deployment, federal regulators have to more seriously tackle market failure and monopoly power. These entrenched monopolies work tirelessly to undermine competitive alternatives while lobbying the federal government to ensure regulatory oversight is as feckless as possible.

“We have to acknowledge that we have widespread market failure in the market for residential telecommunications, and that market failure has been driven by incumbent providers, who have not only failed to deliver on promises to close the digital divide, but have actively thwarted any federal policy that would help new entrants gain a foothold,” Goodman said. 

Goodman noted that the government has a long history of throwing billions of dollars at regional monopolies in exchange for networks that routinely wind up only partially deployed, whether in rural Mississippi, the hills of West Virginia, or the streets of New York City.

“We have to stop giving broadband subsidies to ISPs that have built their profitability off of digital discrimination,” Goodman said. “Those providers have repeatedly made decisions that resulted in disparate access to broadband, and now they are demanding taxpayer funds to solve a problem which ISPs themselves have created.”

Activists say there’s a path forward. Federal support of open-access fiber networks and community-owned broadband (including by cooperatives and city-owned utilities) can challenge monopoly power, boost competition, and lower the cost of market entry. The end result: faster, cheaper, and more equitable broadband access inherently less prone to discrimination. 

But it’s hard to fix a problem you can’t or won’t measure. While there has been progress since Congress passed a 2020 law demanding the FCC do a better job on broadband mapping, both consumer groups and state leaders say it remains very much an active problem. And the agency still refuses to collect and publicly share essential broadband pricing data.

Some of the FCC’s inaction can be blamed on an industry-backed blockade of popular FCC nominees like Gigi Sohn, leaving it without a voting majority for much of President Joe Biden’s first term. But even with the recent confirmation of Anna Gomez, activists remain skeptical that the agency has the political backbone to consistently stand up to industry giants when it truly matters. 

Neglected neighborhoods aren’t waiting for the FCC to get its act together. Hundreds of US communities have been building community-owned and -operated broadband networks in a quest for better, faster, and cheaper internet access. That includes Cleveland, which recently launched a plan to deploy citywide fiber and wireless broadband for as little as $18 a month.

Whether the FCC’s digital discrimination protections can begin to truly repair generations of injustice remains unclear. Industry lawsuits could derail rule implementation until long after infrastructure bill subsidies begin to flow, complicated by looming, industry-backed Supreme Court rulings aimed at undermining the independent authority of US regulators.

The next presidential election will matter as well; while the creation of digital discrimination rules was a congressional mandate, Republican FCC leadership — which historically has sided with the telecom industry on most issues of substance — could simply choose not to enforce them.

Still, the federal government’s belated formal acknowledgment of systemic discrimination remains monumental and historic all the same, providing a much stronger foundation for those on the front lines of the fight for equitable and affordable access. 

Joshua Edmonds, CEO of equity activism nonprofit DigitalC, is working closely with Cleveland city officials to help build its new network. He told The Verge he was cautiously optimistic about the FCC’s rules and was quick to acknowledge the historic precedent.

“It’s one thing for an activist group to say that, or even a local equity champion, but for the FCC to acknowledge that digital discrimination has persisted, that’s moving in the right direction,” he said, adding that he has been impressed by the agency’s community outreach sessions in cities like Baltimore, Los Angeles, and Topeka.

“But what does it mean to be penalized?” he asked. “Is it a public facing walk of shame? What actually is it? I think this FCC has big ambitions, and I laud them. I think the question that I have is: with big ambitions, do you guys have teeth? And I don’t know if they do or not.”