By: Joseph Cunningham
In an unanimous bipartisan decision, the Federal Communications Commission (“FCC”), has initiated a probe into Internet Service Providers’ (“ISP”) alleged practice of redlining in the expansion of high-speed broadband. Redlining, in this circumstance, is the practice of intentionally choosing not to expand or upgrade broadband services based on unlawful and discriminatory considerations such as income, race, ethnicity, or color. Redlining was first noticed in the 1930s when banks would create maps that indicated neighborhoods to withhold loans from, based on determinations that these neighborhoods were risky or “undesirable” investments. However, in reality, they were almost always poor BIPOC communities. Yet, nearly 100 years later, evidence shows ISPs deny these same communities high-speed broadband access, as they claim the communities are unprofitable investments.
The FCC has begun this probe in response to the Infrastructure Investment and Jobs Act, which will spend $65 billion on ensuring Americans equal access to high-speed broadband, and were directed to have rules in place for finding and eliminating sources of discrimination by November 2023. Since the start of the Biden administration, over 140 elected officials and organizations have asked the administration to take an active role in reviewing digital redlining and ending digital discrimination. Under the new leadership of FCC Chair Rosenworcel, the FCC is seeking information from the public relating to experiences with, and evidence of redlining, to help draft rules that would define and discover the practice and punish it. Before this probe, the FCC started two other commissions, the Communications Equity and Diversity Council and the Task Force to Prevent Digital Discrimination, which will both assist in informing the agency’s rulemaking.
Digital redlining is not yet illegal, and evidence shows that most of the communities affected are low-income or BIPOC communities. Current American policy exacerbates redlining issues because ISPs who do choose to expand broadband access outside of wealthy neighborhoods primarily target rural white neighborhoods. In 2017, Cleveland and Detroit citizens filed complaints against AT&T for essentially redlining, alleging that most high poverty blocks lacked high-speed broadband access that was standard in wealthier neighborhoods, but both complaints were resolved in mediation and dismissed. Further, Microsoft estimates 120 million people are without access to high-speed broadband. Crucially, a lack of high-speed broadband is more prevalent for systematically marginalized children, which creates a substantial risk of inability to keep pace with the digital age. The FCC and others have emphasized that broadband access is crucial in the digital age as it gives access to education, work, healthcare and more. Bank redlining in the mid-20th century had generational effects such that in 2019, 42% of Black people owned a home verse 72% of White people. Also, the median Black household held one-eighth the wealth of the median White household; broadband redlining could have similar adverse effects if left unchecked.
Several organizations have proposed solutions, with the primary being to make broadband a public utility and reinstate net neutrality. These actions would protect consumers from price gouging, service denial, and upgrade denial. However, ISPs do not want that because it would reduce their profits and potentially make the industry less competitive and therefore less innovative. However, several cities have managed to deliver high-speed broadband to redlined communities through partnerships with tech companies like Microsoft and budget ISP’s for as low as $15 a month. In addition, non-profits like the National Digital Inclusion Alliance have already made headway in researching and proposing changes to advance digital equity through ensuring affordability of high-speed broadband, funding digital skills programs, and improving broadband regulation and data collection. However, the previous administration’s undoing of net neutrality and deregulation of broadband combined with the current republicans on the commission’s reluctance to reverse these harmful policies make public broadband a longshot.
ISPs will continue to get billions of dollars in government funding to expand broadband access. Therefore, it is only reasonable to require that those dollars not be used to discriminate and expand racial gaps. Thus, the findings and rulings by the FCC are crucial to setting the tone for the future of systematically marginalized groups across America. If the FCC can create meaningful regulations and guidelines for the expansion of broadband, then there may be hope for closing racial gaps. Broadband access is crucial for nearly every aspect of life in the digital age, and that role will only expand with technology’s exponential growth.
Student Bio: Joseph Cunningham is a second-year law student at Suffolk University Law School. He is a staffer in the Journal of High Technology Law. Joseph received a Bachelor of Science Degree in Economics and Sports Industry from The Ohio State University.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
