New FCC Rules on Digital Discrimination Adopted November 15
On November 15, 2023, the Federal Communications Commission (FCC) adopted rules to establish a framework to support equal access to broadband internet services by preventing digital discrimination of access.1 Under the Bipartisan Infrastructure Law, the FCC is required to adopt rules to ensure that all Americans have equal access to reliable, high-speed broadband services without discrimination based on income level, race, ethnicity, color, religion or national origin. Pursuant to its new rules, the FCC authorized investigations regarding digital discrimination of access, set out improvements to its consumer complaint process, and adopted model policies and best practices that will support state, local and Tribal governments as they address digital discrimination.2
The new rules amend the FCC’s existing enforcement rules and prohibit digital discrimination of access. They focus on the issue of differential outcomes in relation to broadband service rather than centering only on discriminatory intent. Under the new rules, the FCC can directly address companies’ policies and practices if they differentially impact consumers’ access to broadband internet access service, not only if they were intended to do so.3 The FCC may conduct self-initiated investigations and revise its informal complaint process to accept complaints alleging digital discrimination. The FCC may even offer parties voluntary mediation that it oversees when appropriate.
The new rules define “digital discrimination of access” as “[p]olicies 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.”4 The inclusion of the first element enables the FCC to enforce the new rules against providers whose actions the FCC finds to be discriminatory without requiring the FCC to prove that the provider had a
discriminatory intent. The caveat that certain practices resulting in discriminatory results could be justified by “genuine issues of technical or economic feasibility” referenced prior success under similar circumstances or technological advances as possible markers of feasibility.5
Broad Application of New Rules
Pursuant to their definitions, the new rules may be broadly applied to parties in the broadband industry, elements of service and consumers. The new rules apply to entities that “provide, facilitate and affect consumer access to broadband internet service,” which includes broadband internet service providers and entities maintaining and upgrading network infrastructure, among many other entities. Covered elements of service were also defined broadly and can include “all relevant service quality metrics and all terms and conditions of service,” including speed, capacity, mandatory arbitration clauses and pricing, among others.6 The consumers covered by the new rules are described as “current subscribers and prospective subscribers of broadband internet access service.”7 The rules apply to any lack of comparability in service, including but not limited to price.8
All FCC penalties and remedies will be available if the FCC determines that the rules surrounding digital discrimination have been violated.9 When determining whether a policy or practice violates the new rules, the FCC will first investigate whether the policy or practice differentially affects access to broadband or is intended to do so. Upon a positive finding, the FCC will review any technical or economic feasibility issues “that may compel use of the challenged policy or practice rather than a less discriminatory policy or practice.”10 In short, the FCC will first determine whether a policy or practice is discriminatory and, if so, whether there were any reasonably available and achievable alternatives that would have been less discriminatory.11
The FCC also proposed heightened responsibilities for providers. While not adopted, the FCC will seek comments on affirmative obligations that might be undertaken by broadband service access providers (“Broadband Providers”). If adopted, the affirmative obligations would be for Broadband Providers to:
- Submit an annual, publicly available supplement to the FCC’s Broadband Data Collection describing “all major deployment, upgrade and maintenance projects completed or substantially completed in the preceding calendar year”;12 and
- Establish a mandatory internal compliance program requiring regular assessment of:
- The communities served by large-scale projects (recent, pending and planned); and
- Whether the provider’s broadband policies and practices might differentially impact consumers’ access to broadband based on the six characteristics listed by the new rules and without adequate technical or economic justification.13
Guidance for Companies in the Broadband Industry
As a result of these rules, particularly the emphasis on differential outcomes rather than only on practices intended to have differential impacts, burdens for providers will likely be higher. If adopted, the establishment of internal compliance programs and satisfaction of the annual supplements will create significant additional responsibilities for providers. The new rule will not take effect until some time (likely 60 days) after publication in the Federal Register, and the proposed rules will be subject to public comment and discussion going forward. For now, companies in the telecommunications industry can ensure that management is aware of the new rules and understands their broad-reaching impact and potential increase risk, review whether any current practices create what could be considered to be a differential impact upon the protected categories, and monitor and engage in the FCC’s rulemaking process.