This December, the Federal Communications Commission (FCC) is poised to take action to combat digital discrimination. Equitable access to broadband is an important objective, and the agency has long been charged with ensuring that telecommunications be made available “without discrimination on the basis of race, color, religion, national origin, or sex.” But a key question is how one defines “discrimination.” The breadth of the agency’s proposed definition could have unintended consequences, for the telecommunications industry and for antidiscrimination law generally.

Back in 1996, Congress amended the Communications Act to include antidiscrimination as part of American telecommunications policy. Last year’s Infrastructure Investment and Jobs Act reinforced this initiative, directing the FCC to adopt rules “to facilitate equal access to broadband,” including by “preventing digital discrimination of access.” To fulfill this mandate, the FCC has placed a notice of proposed rulemaking on the agenda for its December 21 open meeting.