In a Report and Order (Order) and Further Notice of Proposed Rulemaking (NPRM) adopted November 15, 2023, in Docket 22-69 a split FCC adopted rules to prevent and eliminate broadband digital discrimination. The Commission takes this action do to the Congressional 2021 Infrastructure Investment and Jobs Act which requires it to adopt rules ensuring that all Americans have equal access to reliable, high-speed broadband services without discrimination.
Under the new rules, the Commission can investigate possible instances of discrimination of broadband access, work with companies to solve problems, facilitate mediation, and, when necessary, penalize companies for violating the rules. The FCC will review consumer complaints of digital discrimination of access through an improved consumer complaint portal and staff will meet monthly to assess trends in complaint patterns. (November 15, 2023, FCC News Release).
The new digital discrimination rules apply to an expansive number of “covered entities, including:
- Broadband Internet access service 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 service.
The Order does the following:
Defines “digital discrimination of access” as “policies or practices, not justified by genuine issues of technical or economic feasibility, that (1) differentially impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, color, religion or national origin, or (2) are intended to have such differential impact.”
As the law requires, the FCC will consider arguments that:
- Legitimate business impediments preclude equal access to broadband service in particular communities;
- Adopts rules that prohibit digital discrimination of access;
- Amends the Commission’s existing enforcement rules so they specifically authorize investigations regarding digital discrimination of access;
- Revises the Commission’s informal consumer complaint process to provide a designated pathway for accepting complaints of digital discrimination of access; and
- Adopts model policies and best practices for states, local and Tribal governments to support their efforts in combating digital discrimination of access.
The Order will be effective 60 days after it appears in the Federal Register.
In the NPRM, the Commission proposes,
that each broadband provider be required to submit an annual, publicly available supplement to the Broadband Data Collection that describes, on a state-by-state or territory-by-territory basis, all major deployment, upgrade, and maintenance projects completed or substantially completed in the preceding calendar year;
and that each provider be required to establish and maintain a mandatory internal
compliance program to ensure that the provider regularly assesses whether and how its policies and practices advance or impede equal access to broadband internet service in its service areas.
Industry comments are due 30 days after the NPRM appears in the Federal Register.
As noted above, this Order was adopted by a 3-2 vote at the FCC, with the Democratic majority praising its passage. As Chairwoman Jessica Rosenworcel stated,
Back to the statute. The language is broad. But Congress was explicit—these rules have to “facilitate equal access to broadband.” As part of this goal, Congress also told us we need to prevent and eliminate digital discrimination of access. That means our rules would miss the mark if they cover just discriminatory intent because we would fall short of meeting our statutory obligation to “facilitate equal access” to broadband. As a result, we define digital discrimination to include disparate treatment and disparate impact. I believe this approach puts us both on the right side of history and the right side of the law. (Statement of Jessica Rosenworcel).
But the two Republicans dissenting from the Order argue that the new rules are too expansive, providing the agency almost unlimited control over ISPs. Commissioner Brendan Carr provides a list of the ISP actions that will now fall under FCC control:
- Network infrastructure deployment, network reliability, network upgrades, network maintenance, customer-premises equipment, and installation;
- Speeds, capacities, latency, data caps, throttling, pricing, promotional rates, imposition of late fees, opportunity for equipment rental, installation time, contract renewal terms, service termination terms, and use of customer credit and account history;
- Mandatory arbitration clauses, pricing, deposits, discounts, customer service, language options, credit checks, marketing or advertising, contract renewal, upgrades, account termination, transfers to another covered entity, and service suspension. (Statement of Brendan Carr).
The Order is so expansive, it is almost surely going to be opposed by ISPs. Like the recent Net Neutrality Order, it is likely to wind up at the Supreme Court for a final ruling. Under the “Major Questions” doctrine, the conservative Court is likely to find that the Commission has exceeded its mandate.