President Joe Biden has authorized the Federal Communications Commission (FCC) to oversee the internet services and infrastructure in the country, under the banner of promoting digital equity. The FCC has adopted a controversial standard of disparate impact, which could lead to lawsuits and fines against internet service providers (ISPs) if they are found to have any racial or ethnic disparities in their access or quality.
The FCC, in its 235-page filing released in November, has chosen to use the legal doctrine of disparate impact, which holds that any policy or practice that has a disproportionate adverse effect on a protected group, regardless of the intent, is discriminatory and unlawful. The FCC has applied this standard to the internet services and infrastructure, claiming that it is necessary to prevent digital discrimination and ensure equal opportunity for all Americans.
The FCC has said that it will monitor the ISPs for any signs of disparate impact, such as the availability, speed, price, and quality of the internet services, as well as the customer satisfaction and complaints. If the FCC finds any evidence of disparate impact, it could sue the ISPs, impose fines, or require them to make changes to their operations.
FCC admits no evidence of intentional discrimination by ISPs
The FCC, however, has admitted that it has found little or no evidence of intentional discrimination by the ISPs, and that discrimination does not contribute to the disparities in access to broadband internet service across the nation. The FCC has also acknowledged that there are many factors that affect the internet access and usage, such as income, education, geography, and personal preferences.
The FCC has also ignored the fact that the internet market is highly competitive and dynamic, and that the ISPs have been investing billions of dollars to expand and improve their services, especially in the rural and low-income areas. The FCC has also disregarded the fact that the internet is a private sector innovation that has thrived with minimal government intervention and regulation.
FCC’s plan faces criticism and opposition
The FCC’s plan to regulate the internet under the guise of digital equity has faced criticism and opposition from various quarters, including the ISPs, the consumers, the lawmakers, and the courts. The ISPs have argued that the FCC’s plan is an unlawful power grab that will stifle innovation, competition, and consumer choice. The consumers have expressed their concerns that the FCC’s plan will increase the cost and reduce the quality of the internet services. The lawmakers have questioned the FCC’s authority and legitimacy to impose such a sweeping and unprecedented regulation. The courts have challenged the FCC’s use of disparate impact, which has been rejected by the Supreme Court in several cases.
FCC Commissioner Brendan Carr, who has been vocal in opposing the FCC’s plan, has warned that the FCC’s plan will give the administrative state effective control of all internet services and infrastructure in the country, and that the FCC will be able to second-guess every aspect of an ISP’s operations, from network maintenance and installation to everyday business operations such as pricing and marketing.
