How one word could make or break a California lawmaker’s bid for broadband equity

Assemblymember Mia Bonta's push to create new legal avenues for the state to ensure equitable internet access faces intense pushback from broadband companies.

BY: TYLER KATZENBERGER | 06/21/2024 04:20 PM EDT

“The liability standard in my bill is essential for effectively addressing persistent discriminatory practices that have, for too long, affected disadvantaged communities,” Assemblymember Mia Bonta said.Jeff Chiu/AP

SACRAMENTO, California — A landmark effort to prevent internet companies from providing lower-quality internet to minority groups in California is facing intense pushback from the broadband industry ahead of a key legislative deadline.

The wrangling over a bill from Assemblymember Mia Bonta centers on a legal standard it would establish for public prosecutors or the state's Department of Civil Rights to sue internet providers if their high-speed internet build-out excludes minority communities — regardless of whether the exclusion was intentional.

“The liability standard in my bill is essential for effectively addressing persistent discriminatory practices that have, for too long, affected disadvantaged communities,” Bonta, a Bay Area Democrat, said in a statement.

The debate: Broadband providers looking to weaken the proposed liability standard before it clears the Legislature want Bonta to replace “disparate impact” with “disparate treatment” — which would essentially require prosecutors to prove a company had intended to provide lower-quality internet to certain groups.

CalBroadband President Janus Norman argues the standard in Bonta’s bill would create legal uncertainty for companies that could slow broadband deployment and threaten discount programs for groups like seniors and veterans.

“This legislation will chill badly needed private broadband investment,” Norman said in a statement.

Broadband-equity advocates say the disparate-treatment standard sought by industry groups would require prosecutors to present smoking-gun evidence of explicitly biased company policies before taking legal action.

Holding companies accountable for outcomes is what matters for people at the back of the line for internet upgrades, argued Shayna Englin, senior adviser and former Digital Equity Initiative director for the nonprofit California Community Foundation. If the standard is softened to “disparate treatment,” Englin said, “communities lose any avenue to do anything about outcomes.”

An unexpected ally: CalBroadband’s coalition includes the Rev. Amos Brown, president of the San Francisco NAACP and a member of California’s Reparations Task Force, while the Oakland NAACP and Oakland African American Chamber of Commerce support the legislation.

In a letter to lawmakers obtained exclusively by POLITICO, Brown said the bill runs “immense risk” of backfiring. He warned the same enforcement mechanism aimed at preventing discrimination based on race could jeopardize low-cost internet plans offered in partnership with Black churches and force broadband providers to scale back community outreach to minimize the risk of a lawsuit.

“It's hard to understand how that would advance the goal of digital equity,” Brown wrote.

Key context: Internet giants have opposed previous efforts to expand broadband access in Oakland. AT&T and Comcast last December attempted to block a nearly $4 million investment from the California Public Utilities Commission that would upgrade fiber-optic lines in the city, arguing the area already had adequate access to high-speed internet.

A study from broadband equity nonprofit Oakland Undivided, in partnership with Oakland Area Public Schools and technology company HubbleIQ, however, found that average internet speeds in the city’s lowest-income ZIP code, which is majority non-white, were 10 times slower than speeds in the highest-income ZIP code, which is majority-white.

And a network study conducted by the California Public Utilities Commission from 2010-2017 found AT&T wire centers serving lower-income communities had higher trouble report rates and longer out-of-service durations than higher-income communities.

“I don't think these are good faith arguments they're making, and I'm deeply concerned they're just throwing spaghetti at the wall to see what sticks,” said Patrick Messac, president of Oakland Undivided and a former Bay Area public school teacher, about the industry.

Legal threat: Broadband companies have warned they may challenge the legislation in court if it passes as written. The U.S. Chamber of Commerce sued the Federal Communications Commission in January over a similar rule that would allow the commission to investigate and penalize companies suspected of broadband access discrimination.

What’s next: There’s no indication Bonta plans to change her legislation. The last amendment came in April, when Bonta tweaked the bill to exclude income level as a discriminating factor.

“The biggest hurdle this bill faces is setting the record straight against the false arguments this bill could increase operational costs or complicate compliance,” Bonta said in a statement.

Her legislation passed the Assembly last month on a 43-10 vote, but it faces a tougher path through the Senate. It must clear the Energy, Utility and Communications Committee and the Senate Judiciary Committee before the July 3 deadline for legislation to advance past policy committees.

Advocates meeting with lawmakers to support the measure said lobbyists for broadband companies are cycling in and out of legislative offices “all day, every day” ahead of a Senate Energy, Utility and Communications committee vote slated for Monday.

“It’s a constant drumbeat,” Englin said. “Community organizations just don’t have that level of firepower.”