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FCC turns up broadband oversight with anti-discrimination rules

Jessica Rosenworcel, chairwoman of the Federal Communications Commission, testifies during a House Energy and Commerce Committee Subcommittee hearing on March 31, 2022, in Washington, D.C.  (Kevin Dietsch)
By Cristiano Lima Washington Post

The Federal Communications Commission took another step on Wednesday to expand its oversight of the broadband industry under its newly minted Democratic majority, with the agency greenlighting sweeping digital discrimination rules in a party-line vote.

The move could open internet service providers to fresh liability if they “differentially impact consumers’ access to broadband” based on race, ethnicity or income level.

The action was developed in response to the 2021 bipartisan infrastructure law, which directed the FCC to craft rules “preventing digital discrimination of (internet) access based on income level, race, ethnicity, color, religion, or national origin.”

Congress gave the agency two years to achieve the goal, a feat it narrowly achieved on the two-year anniversary of the law’s signing. The FCC lacked a Democratic majority for much of President Biden’s first term but clinched it again in September.

At a news conference, FCC Chairwoman Jessica Rosenworcel hailed the effort as the “first bipartisan civil rights legislation of the digital age” that will help lawmakers and the Biden administration close gaps in internet access.

“Congress knew that deployment and affordability efforts … weren’t enough,” she said. “If we really wanted to close the digital divide, we had to address digital discrimination.”

Rep. Yvette D. Clarke (D-N.Y.), one of the pioneers of the push, called it an “extraordinary and groundbreaking” step that would ensure “no one is shut out of the benefits of the digital age.”

The vote represents the latest effort by FCC Democrats to reverse years of deregulation during the Trump administration and broaden their ability to keep major broadband providers like Comcast and AT&T in check.

The agency renewed efforts in October to reinstate the Obama-era net neutrality regulations, which blocked broadband providers from throttling or blocking certain content.

The push is part of a broader campaign to give the FCC expanded powers by reclassifying broadband as a telecommunications service under Title II of the Communications Act. The move will help the agency address “gaping loopholes that were left by the last administration with respect to consumer protection, public safety and national security,” including around tracking internet outages, Rosenworcel said in an interview last month.

The agency’s latest move is sparking blowback from Republicans and industry groups, who condemn it as regulatory overreach that could stifle innovation in the sector.

Sen. Ted Cruz (Texas), the top Republican on the Senate Commerce Committee, called it an “Orwellian ‘equity’ plan” that would only benefit “overzealous government regulators who want to control the internet.”

“Democrats are hoping to convince the American people that broadband internet is so racist they need to plow ahead with government-mandated affirmative action and race-based pricing,” he said in a statement.

NCTA, a broadband trade group, {span style=”text-decoration: underline;”}said in an unnamed statement{/span} that rather than “implementing Congress’ focused directive, the FCC is instead asserting expansive new authority over virtually every aspect of the broadband marketplace.” Both of the FCC’s Republican commissioners, Brendan Carr and Nathan Simington, also opposed the move.