On November 20, 2023, the Federal Communications Commission (“Commission”) released a Report and Order and Further Notice of Proposed Rulemaking (“Order”) adopting final rules to facilitate equal access to broadband and address digital discrimination.[1] This decision will be of particular importance to entities that provide, facilitate, or affect consumer access to broadband, including both terrestrial and satellite broadband providers irrespective of the technology used to deliver the broadband service. A Further Notice of Proposed Rulemaking (“FNPRM”) accompanies the Order, seeking additional comment on matters pertaining to the implementation of section 60506 of the Infrastructure Investment and Jobs Act.[2] The final rules and FNPRM are summarized below:
- Prohibition of Digital Discrimination of Access: The Order prohibits “covered entities” (defined in the next bullet) from engaging in “digital discrimination of access” when offering broadband internet service to consumers. The Commission defines digital discrimination of access as “policies or practices, not justified by genuine issues of technical or economic feasibility, that differentially impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, color, religion or national origin, or are intended to have such differential impact.”[3] Both conduct motivated by discriminatory intent, and conduct having a discriminatory effect can qualify as digital discrimination of access if such conduct is based on the consumer’s income level, race, ethnicity, color, religion, or national origin.
- Covered Entities and Consumers: The Commission’s rules on digital discrimination of access apply to “entities that provide, facilitate and affect consumer access to broadband internet service.”[4] Such “covered entities” include, but are not limited to, broadband providers; contractors retained by, or entities working through partnership agreements or other business arrangements with, broadband internet access service providers; entities facilitating or involved in the provision of broadband internet access service; entities maintaining and upgrading network infrastructure; and entities that otherwise affect consumer access to broadband internet access. “Consumers” in this context means both current and potential subscribers of broadband internet service, which includes individual persons, groups of persons, individual organizations, and groups of organizations having the capacity to subscribe to and receive broadband internet access service.[5]
- Enforcement: The Order adopts rules that allow the Commission to enforce its prohibition on digital discrimination of access through Commission-initiated investigations.[6] In evaluating an alleged violation, the Commission will implement a twofold assessment: “first, whether a policy or practice is discriminatory; and if so, whether there were reasonably available and achievable alternatives (i.e., alternatives that were technically and economically feasible) that would have been less discriminatory.”[7] The Order also revises the Commission’s informal complaint process to provide a voluntary mediation process between the complainant and the entity identified in the complaint. This mediation will be overseen by Commission staff.[8]
- Consumer Complaint Process: The Order revises the Commission’s informal consumer complaint process to (1) add a dedicated pathway for digital discrimination of access complaints; (2) collect voluntary demographic information from filers who submit digital discrimination of access complaints; and (3) establish a clear pathway for organizations to submit digital discrimination of access complaints.[9]
- State and Local Model Policies and Practices: The Order adopts guidelines and best practices for states and localities to implement in order to prevent digital discrimination and promote digital equity as directed by section 60506(d) of the Infrastructure Act.[10] The Commission strongly encourages states and localities to implement the recommendations as a starting point for advancing digital equity, however, the Order does not limit states and localities from taking additional steps to prevent and eliminate digital discrimination of access.
- Further Notice of Proposed Rulemaking: In the FNPRM accompanying the Order, the Commission seeks comment on affirmative obligations for broadband providers, namely an annual reporting requirement and compliance programs to ensure the goals of the Infrastructure Act and the Commission’s rules are carried out. Additionally, the FNPRM seeks comment on establishing an Office of Civil Rights within the Commission.[11]
Comments on the issues raised by the FNPRM are due no later than 30 days after publication of the Order in the Federal Register (which has not yet occurred) and reply comments are due no later than 60 days after publication in the Federal Register.
If you have any questions about the Commission’s Order or communications law and regulation, please contact a Sheppard Mullin communications attorney.
FOOTNOTES
[1] Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination, GN Docket No. 22-69, Report and Order and Further Notice of Proposed Rulemaking (rel. Nov. 20, 2023) (“Order”).
[2] Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, § 60506, 135 Stat. 429, 1245-46 (2021) (codified at 47 U.S.C. § 1754) (“Infrastructure Act”).
[3] Order at ¶ 33.
[4] Id. at ¶ 85.
[5] Id. at¶ 89.
[6] Id. at¶ 119.
[7] Id. at ¶ 120.
[8] Id. at ¶¶ 132-53.
[9] Id. at ¶ 107.
[10] Id. at ¶ 175.
[11] Id. at ¶¶ 179-214.