By: Andrew Regitsky
The FCC is required to help implement the Infrastructure Investment and Jobs Act (Act) which became law late last year. Specifically, the Commission has until November of 2023 to implement section 60506 of the Act, which states:
(a) STATEMENT OF POLICY. —It is the policy of the United States that, insofar as technically and economically feasible—
(1) subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service;
(2) the term “equal access”, for purposes of this section, means the equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in each area, for comparable terms and conditions; and
(3) the Commission should take steps to ensure that all people of the United States benefit from equal access to broadband internet access service.
FEDERAL POLICIES. —The Commission and the Attorney General shall ensure that Federal policies promote equal access to robust broadband internet access service by prohibiting deployment discrimination based on—
(1) the income level of an area;
(2) the predominant race or ethnicity composition of an area; or
(3) other factors the Commission determines to be relevant based on the findings in the record developed from the rulemaking.
To meet its requirements, on March 16, 2022, the agency initiated a Notice of Inquiry (Notice) in Docket 22-69 in which it seeks industry comments on the following questions:
What rules should the Commission adopt to facilitate equal access to broadband internet access services and prevent digital discrimination?
What other steps should the Commission take to eliminate digital discrimination?
What data should the Commission rely on as it considers the issue of digital discrimination? and
How should the Commission revise its public complaint process to accept complaints related to digital discrimination?
As noted above, Congress defines “equal access” as “the equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions. The Commission asks how this requirement should be implemented:
[D]oes this phrase mean that subscribers should be able to subscribe to comparable services at comparable terms and conditions? Does this phrase carry any additional meaning? Could the Commission’s precedent regarding eligible telecommunications carriers be instructive in interpreting the phrase? An eligible telecommunications carrier is a common carrier designated by a state commission—or in some instances by the Commission—that is eligible to receive universal service support and must provide service throughout a designated area. (Notice at para. 12).
The Commission also asks how compatibility of services including terms and conditions should be defined? Should the definition change over time?
The Commission seeks comments on what a “given area of service” means. Should it mean the service area of a company or something else?
How should the Commission “facilitate” equal access to services? What specific rules should it implement?
Finally, the agency asks how to define “digital discrimination” and how to prevent it. What specific rules should it implement to prevent this practice? In addition,
We seek comment on the listed characteristics of “income level, race, ethnicity, color, religion, or national origin[.]” We recognize that many of these terms have established meanings in other areas of law regarding discrimination. Do we need to further define these terms, or is their meaning self-evident, especially in light of existing precedent? If we did further define these terms, should we defer to other precedents or sources of law to give them meaning and, if so, which? Should our efforts to prevent digital discrimination focus on preventing discrimination against particular individuals or communities in the aggregate that meet one of the listed characteristics? Id., at para 23.).
Industry comments regarding the Notice are due on May 16, 2022. Reply comments are due on June 30, 2022.