On November 15,2023, the FCC adopted a Report and Order (Order) and a Further Notice of Proposed Rulemaking (FNPRM) on Preventing Digital Discrimination. As first discussed on this site in the 1/27/23 edition of the ICORE Blog, the FCC was required to address the issue of Digital Discrimination as a result of Section 60506 of the Infrastructure and Jobs Act (Act) which became law on November 15, 2021. Section 60506 sets forth various requirements to prevent and eliminate digital discrimination. In defining “equal access” as the opportunity to subscribe to offered broadband services that provide comparable speeds and meet other technical specifications for a given area for comparable terms and conditions, Section 60506 required the Commission to adopt rules not later than two years after the enactment of the Act.
The rules adopted in the Order address the following major points:
* Digital Discrimination of Access is defined as ” policies or practices, not justified by genuine issues of technical or economic feasibility, that differently impact consumers’ access to broadband internet service based on their income level, race, ethnicity, color, religion or national origin, or are intended to have such differential impact.” Under the rules adopted in the Order the FCC will investigate conduct alleged to be motivated by discriminatory intent, as well as conduct alleged to have discriminatory effect.
* The new rules consider issues of technical and economic feasibility. Technically feasible is defined to mean “reasonably achievable as evidenced by prior success by covered entities under similar circumstances or demonstrated technological advances clearly indicating that the policy or practice in question may reasonably be adopted, implemented, and utilized.” Economically feasible is defined to mean “reasonably achievable as evidenced by prior success by covered entities under similar circumstances or demonstrated new economic conditions clearly indicating that the policy or practice in question may reasonably be adopted, implemented, and utilized.”
* The new rules specify that “consumer” means current and prospective subscribers to broadband internet service. Further the new rules allow for enforcement of the prohibition against digital discrimination through self-initiated Commission investigations. The Commission’s informal consumer complaint process is revised by establishing a dedicated pathway for digital discrimination complaints including from organizations and collecting voluntary demographic information from complainants.
* The new rules extend not only to providers of broadband internet service, but also to entities that facilitate and otherwise affect consumer access to broadband internet access service.
* In the FNPRM, the Commission seeks comment on requiring annual reports that facilitate greater transparency regarding substantial broadband projects recently completed by providers and internal compliance programs requiring periodic evaluation of the demographics of communities served and not served by such recently completed projects.
These new rules create another significant set of rules requiring compliance by broadband providers. We will continue to monitor this issue and will provide updates as the situation evolves.
