Digital Discrimination

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On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act (Act)) into law. The ACT includes a significant investment of $65 billion to help close the digital divide and ensure that all Americans have access to reliable, high speed, and affordable broadband service. Among other provisions regarding broadband infrastructure, Section 60506 of the Act sets forth various requirements to prevent and eliminate digital discrimination. In defining “equal access” as the opportunity to subscribe to an offered broadband service that provides comparable speeds and meets other technical specifications for a given area for comparable terms and conditions, Section 60506 requires the Commission to adopt rules not later than two years after the enactment of the Act to ensure and facilitate this outcome.

In March 2022, the Commission released a Notice of Inquiry (NOI) commencing a proceeding and seeking comments on the language and rules the Commission should adopt to meet the intent and requirements of Section 60506. In response to the Notice of Inquiry the Commission received a substantial amount of comments from a large range of stakeholders. In continuing this effort, on December 22, 2022, the Commission released a Notice of Proposed Rulemaking (NPRM) seeking additional comment on potential rules to address digital discrimination of access to broadband pursuant to Section 60506 of the Act.

In the NPRM, the Commission seeks comment on a variety of issues in order to develop rules to meet the Congressional direction to facilitate equal access to broadband service and prevent digital discrimination of access. In order to meet this requirement, the Commission seeks comment on the following:

* Possible definitions of digital discrimination and the rule or rules that should be adopted to prevent digital discrimination. In doing so the Commission proposes to adopt a definition that encompasses actions or omissions that differently impact consumer’s access to broadband service where the actions or omissions are not justified on the grounds of technical and/or economic infeasibility. Further, the Commission will consider policies and practices not justified by technical or economic feasibility that differentially impact consumers based on their income level, race, ethnicity, color, religion, or national origin.

* Whether to adopt a definition of digital discrimination based on disparate impact (i.e., discriminatory effect), disparate treatment (i.e., discriminatory intent) or both? AT&T and the U. S. Chamber of Commerce commented in the NOI that defining digital discrimination based on disparate impact alone would have a negative effect on broadband investment and harm competition.

* How should the Commission’s definition of digital discrimination take into account justifications of technical and economic infeasibility? In what circumstances is a differential impact to consumers justified by genuine issues of technical or economic infeasibility? Should providers have a safe harbor and presumption of nondiscrimination when certain conditions are present and what are those conditions?

The issues/questions listed above are just a few of the many issues that the Commission must address in order to develop rules/regulations to satisfy the requirements of Section 60506 of the Act. These regulations will be of critical importance to every provider of broadband service. Comments in the NPRM are due February 21, 2023 and reply comments are due March 21, 2023. ICORE will continue to monitor this important proceeding and provide updates as new information becomes available.

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