Appeals Court Kills FCC Effort To Acknowledge Racism In Broadband Deployment

from the this-is-why-we-can’t-have-nice-things dept

In late 2023, I wrote a feature for The Verge exploring the FCC’s attempt to stop race and class discrimination in broadband deployment. For decades, big telecoms have not only refused to evenly upgrade broadband in low income and poor areas (despite billions in subsidies for this exact purpose), they’ve provably charged poor and minority neighborhoods significantly more money for worse service.

To be clear: the Biden FCC’s plan didn’t actually stop such discrimination. The previous FCC didn’t even have the moral courage to call out big telecoms with a history of such practices (see: AT&T’s “digital redlining” in cities like Cleveland and Detroit). The FCC simply acknowledged that this discrimination clearly exists and set up a complaint process for consumers who had been discriminated against.

I’m not sure the loophole-filled rules would have ever resulted in meaningful accountability for providers, given holding telecom monopolies accountable has never been a serious priority for either party. But it was at least an acknowledgement that this obvious discrimination exists. For the first time ever. Which was important for what I would hope is obvious reasons.

No longer: the Republican-stocked 8th Circuit Court of Appeals has struck down the entire FCC effort in a ruling, stating the FCC exceeded its legal authority by imposing liability for actions resulting in “disparate impact,” instead of merely policing “disparate treatment.” And by extending the complaint process to include subcontractors who help ISPs with deployment:

“[The FCC] exceeded its statutory authority in two respects that are the core of the final rule—disparate impact liability and the definition of covered entities. We therefore vacate the final rule in its entirety, leaving the FCC with an unfinished obligation to ‘adopt final rules to facilitate equal access to broadband Internet access service’ in compliance with 47 U.S.C. § 1754.”

That resulted in the whole effort being discarded.

The FCC could try to re-establish the rules with a new effort, but that new effort likely wouldn’t survive our new reality created by our corrupt courts dismantling Chevron Deference. Republicans and corporate power have made holding large U.S. companies accountable for almost anything illegal, and it’s still somehow not being talked about enough, given the vast (and quite deadly) looming ramifications.

While the Judges and case intervenors like to put on a very serious adult face and pretend they’re engaging in very serious legalese, the goal here really is no meaningful oversight of telecom monopolies. There’s always something they concoct to suggest the U.S. government can’t engage in basic consumer protection oversight of telecoms. If it wasn’t this, it would be something else.

The impact of this assault on the U.S. federal regulatory state is everywhere you look. Especially in broadband access, where dominant regional monopolies and state and federal regulatory capture (read: corruption) result in spotty access, slow speeds, and abysmal consumer service for everyone. Minorities and marginalized communities just get hit hardest, and usually first.

The ruling, issued unanimously by three judges appointed by Republican presidents, is a double win for folks like FCC boss Brendan Carr, who likely enjoys both the racism and protecting lumbering telecom monopolies from accountability for decades of predatory behavior. As usual, Carr insisted in a statement that fighting discrimination somehow discriminates against white people:

“Today’s appellate court decision is another common-sense win for nondiscrimination.

…the FCC’s decision to adopt those illegal rules only made it harder for providers to bridge the digital divide and took the FCC’s focus off of our core mission.

Now, the FCC is focused on advancing our Build America Agenda and ensuring that regulated entities do not discriminate, including through our efforts to end invidious forms of DEI discrimination. I commend the appellate court for correcting the FCC’s misguided 2023 decision. The court’s ruling follows the Supreme Court’s decision last week making clear that intentional discrimination is unlawful.”

That is, well, patently false. And weird. And an extremely dystopian inversion of reality by zealots. Consumer groups fighting for equitable and affordable broadband (like Public Knowledge) were, in contrast, not impressed. From Public Knowledge’s Legal Director, John Bergmayer:

“The practical effect is to eliminate a rule that addresses a documented problem,” he said. “Lower-income neighborhoods and communities of color get slower service, older equipment, and higher prices for the same product their richer neighbors buy. After today, the FCC can act only when it proves a smoking-gun case of conscious bias, which almost never exists in writing.”

This is just one of several efforts by Republicans to destroy efforts to mandate equitable and affordable broadband access, including Trump’s illegal destruction of the Digital Equity Act, the dismantling of programs that provide free Wi-Fi hotspots to rural school kids, and the general destruction of FCC authority to hold telecoms accountable for stuff like spying on you.

This is occurring at the same time that Trump Republicans are leveraging Carr’s same twisted, inverted logic on “DEI” and inverted discrimination to do everything from censor journalists and comedians to gerrymander maps, stripping representation rights away from millions of American minorities.

Great stuff. Thanks again to all the folks (especially rich Silicon Valley CEOs) who decided that a corrupt kakistocracy at the hands of racist zealots was just what an already struggling America needed.

Filed Under: 8th circuit, brendan carr, broadband, discrimination, fcc, fiber, high speed internet, racism, redlining