Digital discrimination under disparate impact: A legal and economic analysis

Abstract

The lack of broadband in many rural and Tribal communities in the U.S. is widely recognized, but there are also claims of a lack of broadband availability in predominantly Minority and urban communities, sometimes labeled digital redlining or digital discrimination. Motivated by such claims, the bi-partisan Infrastructure Investment and Jobs Act of 2021 includes a provision addressing digital discrimination and directing the Federal Communications Commission to write rules implementing the statutory provision. The Commission's rules adopt two legal discrimination standards including intentional discrimination (differential treatment) and disparate impact (differential effect). Using data from the Commission's new broadband fabric data, we test for differences in broadband availability between predominantly minority and majority neighborhoods (measured as census block groups) and find no evidence of digital discrimination against minorities.