EFF’s first ask for the incoming Biden Administration on broadband policy was to ban digital redlining by regulating broadband as a public good instead of a private luxury. EFF has extensively researched the state of fiber broadband infrastructure in the United States for years.  We’ve identified a disturbing trend in low-income access: the systemic underinvestment in their networks. Major broadband providers have been segregating internet users into first-class fiber internet and second-class legacy internet, even in areas where it would be profitable to provide equal access.

This trend did not happen overnight, but rather developed over more than a decade. Fixing it will take years. But the opportunity to address this problem now sits before the Federal Communications Commission (FCC), which was tasked by Congress with a new law to to end discrimination in broadband access.

A New Federal Law Bans Discrimination in Broadband Infrastructure

Enormous government efforts to end the digital divide have begun. These include EFF’s supported infrastructure law in California. Congress also passed the Infrastructure Investment and Jobs Act that includes a  national broadband infrastructure plan. One key provision that made it through Congress, despite last ditch efforts by big Internet Service Providers (ISPs) to remove it, was a ban on discrimination in broadband deployment. This is otherwise known as the digital discrimination rule. If implemented fully, it will transform broadband into a utility akin to water and electricity by prohibiting profiting from discrimination.

At the start of the pandemic, EFF predicted that legacy networks that lack fiber infrastructure would suffer from the increased usage, driven by remote uses such as education. Legacy networks have a physical limit on how much traffic they can handle and are more expensive to maintain. Ask any school district in areas the federal government considers “fully served” (an exceedingly low bar to hit) and they will share countless stories of low-income families with inferior access unable to obtain remote education.

This is because not all broadband access is equal in terms of capacity. When wealthy neighborhoods needed substantially more bandwidth to handle the pandemic, new fiber lines in those neighborhoods handled those increases with almost no stress to the system. Meanwhile, legacy networks were bogged down because they weren’t designed for those increased uses. Our technical analysis of various transmission mediums explains why such a disparity exists between future-proof fiber and legacy options such as copper DSL.

Large ISPs that serve major cities have no excuse for allowing this disparity to continue; it would be profitable for them to fully serve those areas with fiber infrastructure. However, they instead chose to reinvest in wealthier (and, often, whiter) households because of their higher profit potential. ISPs categorized the houses of limited income residents (often people of color) as areas of modest profit potential by comparison. Therefore, they took the revenues from those customers and diverted it to improve the connections of the wealthy. This diversion of profits from low-income households has happened for years. Now it has systemically given many poorer Americans internet that is not only slower, but also more expensive while the wealthy will get faster and cheaper access through fiber.

Put another way, ISPs are leaving low-income people with the “used car” of the internet while buying the “new car” for the wealthy. A proper interpretation of the new federal antidiscrimination law will make this illegal. It will also force potentially billions of dollars in revenues back into the networks of low-income people and pay to convert those networks to to 21st century-ready fiber wires.

 This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2022.