New FCC Rules Aim to Prohibit Discrimination in Broadband Internet Access

The FCC has released final rules to promote equal access to broadband internet access service, develop model policies and practices for states and localities, and revise the public complaint process to accept consumer complaints of digital discrimination. The FCC also released a further notice of proposed rulemaking on whether to require broadband providers to file annual reports on broadband projects and develop internal equal access compliance programs.

The new rules resulted from the Infrastructure Investment and Jobs Act, which instructed the FCC to create rules to facilitate “equal access to broadband internet access service” by prohibiting “digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin” while taking into account “issues of technical and economic feasibility.” Congress defined “equal access” and identified specific aspects of broadband service the FCC had to protect. However, it deferred to the FCC on how to interpret “digital discrimination of access” and “issues of technical and economic feasibility.”

Definitions

The FCC defined the term “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.” Thus, digital discrimination of access encompasses business conduct both motivated by discriminatory intent, and otherwise having discriminatory effects. Where claims of digital discrimination provide credible evidence that a covered entity’s policy or practice differentially impacts access to broadband internet, the covered entity will have the opportunity to prove that the policy or practice is “justified by genuine issues of technical or economic feasibility.”

The FCC interpreted “technical feasibility” and “economic feasibility” as a policy or practice that is “reasonably achievable as evidenced by prior success by covered entities under similar circumstances or demonstrated [technological advances or new economic conditions] clearly indicating that the policy or practice in question may reasonably be adopted, implemented, and utilized.” The categories of “technical” and “economic” feasibility will be interpreted broadly to encompass any legitimate business impediment to the achievement of equal access. These definitions are designed to ensure that industry participants consider and minimize the potential discriminatory impacts of their policies and practices.

The FCC will take a case-by-case approach to evaluating issues of technical and economic flexibility.

Scope of the Rules

Congress did not specify which businesses are subject to the digital discrimination provisions. Instead, the FCC was given the task of determining who it could prevent from engaging in digital discrimination, and the extent to which consumers would be protected by the new rules. The FCC structured the digital discrimination rules broadly.

Entities that are covered by the rules include broadband internet access service providers and entities that “facilitate and affect consumer access to broadband internet access service.” This broadly includes entities that work through business agreements with broadband internet access service providers, are involved in the provision of broadband internet access service, maintain and upgrade network infrastructure, and otherwise affect consumer access to broadband internet access service. “Consumers” include current and potential subscribers, and individuals, groups, and organizations that have the capacity to subscribe to and receive broadband internet access service.

Complaint Process and Enforcement

The FCC will use an informal complaint process to investigate complaints of digital discrimination. An entity will have the burden of proving a particular policy or practice is justified by genuine issues of technical or economic feasibility. Complaints alleging digital discrimination of access by a covered entity will be forwarded to the entity for investigation and response. Third parties will be allowed to file complaints on behalf of consumers.

The FCC will use its traditional enforcement mechanisms, including fines, for violations involving digital discrimination.

Further Notice of Proposed Rulemaking

The FCC is asking for public comment on two proposals. The first is to require providers to file annual reports detailing recent broadband investments in each state and territory. The reports would be made available to the public. The second is to require broadband providers to adopt formal internal compliance programs to ensure regular assessment of how providers’ practices advance or limit equal access to broadband internet access in their service areas. The FCC also asks if it should exempt certain broadband providers from any of these proposed rules.

The new rules will be effective 60 days after publication in the Federal Register. Comments on the new proposals are due 30 days after publication in the Federal Register.

If you have questions about the new digital discrimination rules, please contact an attorney in our Broadband, Spectrum, and Communications Infrastructure practice group.