When does a lack of “equal access” to broadband internet service translate into “digital discrimination?” That’s what Congress has tasked the Federal Communications Commission (FCC) with determining.

With respect to broadband service, the Infrastructure Investment & Jobs Act (IIJA) is best known for its massive $65 billion investment promoting the availability and affordability of broadband. But Section 60506 of the IIJA (47 U.S.C. § 1754) titled “Digital Discrimination,” mandates the FCC to adopt rules facilitating “equal access” to broadband and preventing digital discrimination in access based upon factors such as race and income, yet taking into account “issues of technical and economic feasibility.” 

The implementation of the Digital Discrimination section of the IIJA, and the resultant FCC Notice of Inquiry, raises a host of thorny issues such as how to apply an “equal access” standard in order to know when digital discrimination has occurred; whether such a finding requires discriminatory intent or it should be applied based upon the disparate-impacts standard (like the Department of Housing and Urban Development uses in its implementation of the Fair Housing Act); and importantly, how to ensure that all areas receive “equal access” to broadband moving forward. Under the statute, the FCC has until November 2023 before it must answer all these questions.

The Society was fortunate to host a panel of experts representing a wide range of viewpoints to address these challenging issues. Crystal Tully lends expert insight into Congress’ intent when drafting the section, while Diana Eisner and Jenna Leventoff provide counterpoints on how and when to apply the digital discrimination standard, and Sanford Williams weighs in with the FCC’s mission and goals as it navigates the novel issue. This conversation, moderated by Joe Kane, will be an important touchstone as the debate continues over the next year.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at info@fedsoc.org.