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The Crackdown on Digital Redlining

Philip R. Stein & Enza G. Boderone
Privacy Portal Blog ImageThe Robert Wood Johnson Foundation, a non-profit focused on fostering healthy communities, defines digital redlining as “major network providers systematically excluding low-income neighborhoods from broadband service – deploying only sub-standard, low-speed home internet.” Since the onset of the pandemic, digital inclusion has become more vital given the increased necessity of broadband access and connectivity.  

Last month, the Federal Communications Commission (the “FCC” or “Commission”) published a Notice of Inquiry (“NOI”) to commence the process of ending this type of redlining, and other forms of digital discrimination. The goal is to eliminate “digital discrimination of access based on income level, race, ethnicity, color, religion or national origin.” The NOI was the product of a directive in Section 60506 of the Infrastructure Investment and Jobs Act (“IIJA”) passed by Congress, which gave the FCC two years within which to adopt rules that will “facilitate equal access to broadband internet access.”

As part of the directive, the FCC must devise “model policies and best practices” for state and local jurisdictions and revise its complaint process to accept complaints from consumers “or other members of the public.” In addition, the FCC is required to consider “the issues of technical and economic feasibility presented by that objective.”

In the NOI, the FCC is requesting comments on: (1) how to interpret the language of  Section 60506 of the IIJA and develop a framework for the rules the Commission must adopt pursuant to Congressional direction; (2) how to facilitate equal access to broadband, including preventing digital discrimination; (3) how to revise the public complaint process to accept complaints related to digital discrimination; and (4) whether there are other federal regulatory regimes, states or localities, or public or private organizations that have successfully addressed these issues that we may look to as benchmarks to inform their inquiry.

Currently, digital redlining is not unlawful because there are no regulations that define where ISPs must build their networks. It is often the case that more advanced, faster networks are built in wealthier communities that are predominantly white. Fiber connections are costly and, therefore, in deciding where to invest, lower income communities are not top priorities. Poorer communities often have no, or slower, internet service from legacy networks that are insufficient to meet current internet demands.  

In 2021, Microsoft conducted a study that estimated that 120.4 million people, or more than a third of the US population, are unable to use the internet at broadband speeds. According to the FCC, more than 14.5 million people do not even have access to broadband. These statistics are alarming. This directive, however, promises to bridge the digital divide.
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