Proposed Rule2023-00551
Implementing the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination
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Published
January 20, 2023
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission or FCC) seeks comment on potential rules to address digital discrimination of access to broadband internet access service. The document proposes to adopt a definition of "digital discrimination of access" as that term is used in section 60506 of the Infrastructure Investment and Jobs Act and seeks comment on further details of the definition, including its scope and the appropriate legal standard. The document proposes to revise the Commission's informal consumer complaint process to accept complaints of digital discrimination of access, and it proposes to adopt model policies and best practices for states and localities combating digital discrimination. The document also seeks comment on other rules the Commission should adopt to facilitate equal access and combat digital discrimination, and the legal authority for adopted rules.
Full Text
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<title>Federal Register, Volume 88 Issue 13 (Friday, January 20, 2023)</title>
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[Federal Register Volume 88, Number 13 (Friday, January 20, 2023)]
[Proposed Rules]
[Pages 3681-3704]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00551]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[GN Docket No. 22-69; FCC 22-98; FR ID 122588]
Implementing the Infrastructure Investment and Jobs Act:
Prevention and Elimination of Digital Discrimination
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) seeks comment on potential rules to address digital
discrimination of access to broadband internet access service. The
document proposes to adopt a definition of ``digital discrimination of
access'' as that term is used in section 60506 of the Infrastructure
Investment and Jobs Act and seeks comment on further details of the
definition, including its scope and the appropriate legal standard. The
document proposes to revise the Commission's informal consumer
complaint process to accept complaints of digital discrimination of
access, and it proposes to adopt model policies and best practices for
states and localities combating digital discrimination. The document
also seeks comment on other rules the Commission should adopt to
facilitate equal access and combat digital discrimination, and the
legal authority for adopted rules.
DATES: Comments are due on or before February 21, 2023, and reply
comments are due on or before March 21, 2023.
ADDRESSES: Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's
rules, 47 CFR 1.415, 1.419, interested parties may file comments and
reply comments on or before the dates indicated in this document.
Comments and reply comments may be filed using the Commission's
Electronic Comment Filing System (ECFS). See Electronic Filing of
Documents in Rulemaking Proceedings, 63 FR 24121 (1998). Interested
parties may file comments or reply comments, identified by GN Docket
No. 22-69 and FCC 22-98 by any of the following methods:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing ECFS: <a href="https://www.fcc.gov/ecfs/">https://www.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
<bullet> Filings can be sent by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
<bullet> Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
<bullet> U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
<bullet> Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, 35 FCC Rcd 2788 (March 19, 2020),
<a href="https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy">https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy</a>.
FOR FURTHER INFORMATION CONTACT: For further information, please
contact either Aur[eacute]lie Mathieu, Attorney Advisor, Competition
Policy Division, Wireline Competition Bureau, at
<a href="/cdn-cgi/l/email-protection#b8f9cdcaddd4d1dd96f5d9ccd0d1ddcdf8dedbdb96dfd7ce"><span class="__cf_email__" data-cfemail="3c7d494e5950555912715d48545559497c5a5f5f125b534a">[email protected]</span></a> or at (202) 418-2194.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking (NPRM) in GN Docket No. 22-69 and FCC 22-98,
adopted on December 21, 2022, and released on December 22, 2022 The
full
[[Page 3682]]
text of this document is available for public inspection at the
following internet address: <a href="https://www.fcc.gov/document/fcc-takes-next-steps-combat-digital-discrimination-0">https://www.fcc.gov/document/fcc-takes-next-steps-combat-digital-discrimination-0</a>. To request materials in
accessible formats for people with disabilities (e.g. braille, large
print, electronic files, audio format, etc.), send an email to
<a href="/cdn-cgi/l/email-protection#274144441217136741444409404851"><span class="__cf_email__" data-cfemail="0e686d6d3b3e3a4e686d6d20696178">[email protected]</span></a> or call the Consumer & Governmental Affairs Bureau at
(202) 418-0530 (voice), or (202) 418-0432 (TTY).
Synopsis
I. Introduction
1. In this proposed rule we take the next step in our efforts to
promote equal access to broadband for all people of the United States
by seeking comment on potential rules to address digital discrimination
of access to broadband internet access service. Equal access to high-
quality, affordable broadband internet service is critical for everyone
living in the Nation, as we increasingly rely on broadband for work and
education, healthcare and entertainment, and to stay connected with
friends and family. As the broadband networks we depend on have become
the backbone to many aspects of civic and commercial life, everyone
needs access to robust, high-speed internet.
2. In this proceeding, we seek to identify and address the harms
experienced by historically excluded and marginalized communities;
provide a grounding for meaningful policy reforms and systems
improvements; and establish a framework for collaborative action to
promote and facilitate digital opportunity for everyone. These goals
follow express congressional direction in section 60506 of the
Infrastructure Investment and Jobs Act (Infrastructure Act) to ``ensure
that all people of the United States benefit from equal access to
broadband,'' including by preventing and identifying steps to eliminate
``digital discrimination of access based on income level, race,
ethnicity, color, religion, or national origin.'' In March of this
year, we launched a broad inquiry on how to construe the language in
section 60506. In response, we received input from a broad array of
stakeholders. We now seek further, focused comment on the statutory
language and the proposals suggested in the record, as we create a
framework for addressing digital discrimination.
II. Background
3. On November 15, 2021, President Biden signed the Infrastructure
Act into law. Among other provisions regarding broadband
infrastructure, section 60506 of that Act set forth various
requirements for the prevention and elimination of digital
discrimination. Defining ``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,'' section 60506 requires the
Commission to adopt rules not later than two years after enactment ``to
facilitate equal access to broadband internet access service.'' (The
Infrastructure Act defines ``broadband internet access service'' for
section 60506 and the remainder of Title V as having ``the meaning
given the term in section 8.1(b) of [the Commission's rules], or any
successor regulation.'' In this proposed rule, we use the terms
``broadband'' and ``broadband internet access service''
interchangeably.) In satisfying that obligation, section 60506 requires
us to consider ``the issues of technical and economic feasibility
presented by that objective'' and directs our rules be aimed at ``(1)
preventing digital discrimination of access based on income level,
race, ethnicity, color, religion or national origin; and (2)
identifying necessary steps for the Commission[] to take to eliminate
discrimination described in paragraph (1).'' Section 60506 further
directs the Commission to collaborate with the Attorney General to
ensure that ``Federal policies promote equal access to robust broadband
internet access service by prohibiting deployment discrimination''; to
develop ``model policies and best practices that can be adopted by
States and localities to ensure that broadband internet access service
providers do not engage in digital discrimination''; and to revise our
``public complaint process to accept complaints from consumers or other
members of the public that relate to digital discrimination.''
4. Pre-Existing Commission Authority To Address Discrimination and
Promote Access. Section 60506 follows other authority granted to the
Commission to address discrimination. Section 1 of the Communications
Act of 1934, as amended (the Communications Act), codifies as one of
the core purposes of the Commission ``to make available, so far as
possible,'' a ``rapid, efficient, Nation-wide'' wire and radio
communication service with adequate facilities ``to all of the people
of the United States, without discrimination on the basis of race,
color, religion, national origin, or sex.'' The Communications Act also
includes authority in section 202(a) to prohibit unjust or unreasonable
discrimination by common carriers in charges, practices,
classifications, or regulations in connection with like communications
services. The Universal Service provisions of section 254 promote
access to telecommunications and information services for ``[c]onsumers
in all regions of the Nation, including low-income consumers and those
in rural, insular, and high cost areas.'' Section 706 requires the
Commission to conduct regular inquiries as to whether ``advanced
telecommunications capability is being deployed to all Americans in a
reasonable and timely fashion.'' As part of the Commission's authority
to grant applications for licenses through a competitive bidding
process, section 309(j) requires the Commission to design a bidding
process that will, among other things, ``promot[e] economic opportunity
and competition'' by ensuring licenses are disseminated ``among a wide
variety of applicants, including small businesses, rural telephone
companies, and businesses owned by members of minority groups and
women.'' Under section 541, local franchise authorities are required to
``assure that access to cable service is not denied to any group of
potential residential cable subscribers because of the income of the
residents of the local area.'' And to implement section 257, the
Commission adopted a ban on discrimination ``on the basis of race,
color, religion, national origin or sex,'' in broadcast transactions.
5. Commission Efforts To Bridge the Digital Divide. Our work to
implement section 60506 complements and builds upon a robust history of
Commission efforts to bridge the digital divide. The Commission has
long used its Universal Service programs to promote access to
telecommunications services and advanced information services at just
and reasonable rates for all. These programs help deliver broadband
services to low-income consumers and to unserved and underserved
communities in rural and insular areas, and provide support in various
ways: one offers low-income consumers discounts on voice service or
broadband internet access service; others provide funding to eligible
schools and libraries for affordable broadband services to help connect
students and members of local communities or provide funding for health
care providers to ensure that patients have access to broadband enabled
healthcare services; and, because some areas may lack network
infrastructure, one program offers subsidies to providers to build out
and
[[Page 3683]]
deploy broadband networks. Since 2020, the Commission also has received
congressional appropriations to establish the Emergency Broadband
Benefit (EEB) Program and its successor, the Affordable Connectivity
Program (ACP), which provides monthly discounts for broadband services
and connected devices for qualifying households; and the Emergency
Connectivity Fund (ECF) and COVID-19 Telehealth Programs, which have,
respectively, provided funding to eligible schools and libraries for
broadband services and connected devices for use by students, school
staff, or library patrons and health care providers for
telecommunications services, information services and connected
devices. The Emergency Broadband Benefit and Affordable Connectivity
Programs alone have helped provide affordable broadband to more than 15
million qualifying households.
6. We have also explored and taken action on issues that may
uniquely impact broadband service in underserved communities. In March
2021, the Public Safety and Homeland Security Bureau refreshed the
record in a proceeding regarding network resiliency during disasters,
including in communities with vulnerable populations. In February of
this year, we adopted rules addressing certain practices in apartments,
public housing, office buildings, and other multi-tenant buildings that
limit competition for broadband service in those buildings. And in
March of this year, the FCC released its Strategic Plan which reflects
goals to help bring affordable, reliable, high-speed broadband to 100
percent of the country and to gain a deeper understanding of how our
rules, policies, and programs may promote or inhibit advances in
diversity, equity, inclusion, and accessibility.
7. Communications Equity and Diversity Council. On June 29, 2021,
the Commission chartered the Communications Equity and Diversity
Council (CEDC). (In chartering the CEDC, the Commission renewed the
charter of the Advisory Committee on Diversity and Digital Empowerment
under a new name.) The mission of the CEDC is to present
recommendations to the Commission on ``advancing equity in the
provision of and access to digital communication services and products
for all people of the United States, without discrimination on the
basis of race, color, religion, national origin, sex, or disability.''
The Commission has appointed distinguished leaders from community,
industry and governmental organizations as members of the CEDC and its
three working groups: the Digital Empowerment and Inclusion Working
Group, tasked with ``making recommendations for addressing digital
redlining and other barriers that impact equitable access to emerging
technology in under-served and under-connected communities''; the
Innovation and Access Working Group, tasked with ``recommending
solutions to reduce entry barriers and encourage ownership and
management of media, digital, communications services and next-
generation technology properties, and start-ups to encourage viewpoint
diversity by a broad range of voices''; and the Diversity and Equity
Working Group, tasked with ``examining how the FCC can affirmatively
advance equity, civil rights, racial justice, and equal opportunity in
the telecommunications industry to address inequalities in workplace
employment policies and programs.''
8. The CEDC and its working groups have taken significant steps
toward executing their charges over the past 17 months. The CEDC has
held five public meetings, including one on September 22, 2022, when
the Innovation and Access Working Group hosted a Digital Skills Gap
Symposium & Town Hall to examine the issues and challenges that states
and localities face in addressing the need for greater digital skills
training. And on November 7, 2022, the CEDC adopted a report titled
``Recommendations and Best Practices to Prevent Digital Discrimination
and Promote Digital Equity,'' including a portion developed by the
Digital Empowerment and Inclusion Working Group recommending both (1)
model policies and best practices to prevent digital discrimination by
broadband providers, and (2) best practices to advance digital equity
for states and localities.
9. Task Force to Prevent Digital Discrimination. On February 8,
2022, Chairwoman Rosenworcel announced the formation of the cross-
agency Task Force to Prevent Digital Discrimination. The Task Force is
focused ``on creating rules and policies to combat digital
discrimination and to promote equal access to broadband across the
country, regardless of zip code, income level, ethnicity, race,
religion, or national origin.'' Since its inception, the Task Force has
facilitated coordination among the Bureaus and Offices regarding this
proceeding, advised the Commission on matters regarding combating
digital discrimination, and met with interested stakeholders. In
November of this year, Task Force leadership held listening sessions
with a broad array of advocates to hear diverse perspectives on this
proceeding.
10. Notice of Inquiry. In March 2022, we released a Notice of
Inquiry commencing this proceeding and seeking broad comment on the
statutory language and rules we should adopt consistent with
congressional direction. In response, we received substantial comment
on these issues from a range of stakeholders representing interests
from the civil rights community, state and local governments, and
broadband service providers of various sizes, technologies, and
business models. The record reflects diverse perspectives on the nature
and causes of digital discrimination of access, how to construe section
60506 and the authority it offers us, and the steps we should take to
fulfill the Infrastructure Act's direction.
III. Discussion
11. In light of this record, we now seek further, focused comment
on the rules we should adopt to fulfill the congressional direction in
section 60506 to facilitate equal access to broadband internet access
service and prevent digital discrimination of access. We first propose
and seek comment on possible definitions of ``digital discrimination of
access'' as used in the Infrastructure Act. We next propose to revise
our informal consumer complaint process to accept complaints of digital
discrimination. We seek comment on the rule or rules we should adopt to
prevent digital discrimination of access, as required by Congress. And
we propose to adopt model policies and best practices for states and
localities combating digital discrimination based on the CEDC
recommendations. (For purposes of this proposed rule, the term
``localities'' includes Tribal governments.)
A. Defining ``Digital Discrimination of Access''
12. We propose to adopt a definition of ``digital discrimination of
access'' that encompasses actions or omissions by a provider that
differentially impact consumers' access to broadband internet access
service, and where the actions or omissions are not justified on
grounds of technical and/or economic infeasibility. We seek comment on
whether this definitional approach should depend on whether, and for
what reason(s), the provider intended to discriminate on the basis of a
protected characteristic. We therefore propose to define ``digital
discrimination of access,'' for purposes of this proceeding, as one or
a combination of the following: (1) ``policies or practices, not
[[Page 3684]]
justified by genuine issues of technical or economic feasibility, that
differentially impact consumers' access to broadband internet access
service based on their income level, race, ethnicity, color, religion,
or national origin''; and/or (2) ``policies or practices, not justified
by genuine issues of technical or economic feasibility, that are
intended to differentially impact consumers' access to broadband
internet access service based on their income level, race, ethnicity,
color, religion, or national origin.'' (We further explore the nuances
and possible meaning of the components our proposed definitions in Part
III.A.2 of this proposed rule.) We believe that this approach
represents a plausible interpretation of ``digital discrimination of
access'' as the term is used in the Infrastructure Act. We seek comment
on this proposal, and we seek further comment on the details of this
definition.
13. We seek comment on whether this definitional approach
represents the best way to interpret digital discrimination of access
under the statute. Should the definition focus on the provider's
actions or omissions as represented by its policies and practices, or
should we adopt another approach? Should the definition exclude those
actions or omissions that are justified by issues of technical and
economic feasibility? Is there another definitional approach that would
be more practical or implementable? Does our proposed approach align
with the concept of digital discrimination in section 60506 and allow
us to fulfill the goals of that section? Would a different definition
for ``digital discrimination of access,'' including suggestions in the
record, better interpret digital discrimination under the statute? Does
the statutory use of the statutorily-defined term ``equal access''
separate from the statutorily-undefined term ``digital discrimination
of access'' counsel any particular approach? We propose to define the
term ``digital discrimination of access'' to give meaning to the full
term used in subsection 60506(b)(1), and we seek comment on this
proposal. Is that the appropriate term in section 60506 to define, or
should we instead define a different term, such as ``digital
discrimination''? What significance, if any, do the words ``of access''
hold? Should we draw on Commission precedent to give meaning to the
full term ``digital discrimination of access'' or its components, such
as the use of ``discrimination'' in section 202(a) of the
Communications Act? If so, how should we do so? Rather than incorporate
technical and economic feasibility into our definition in the manner we
have proposed, should we instead understand section 60506 to require
providers to ``take whatever affirmative steps [are] necessary to make
equal access economically and technologically feasible?'' Should we
consider any of the definitions of ``digital discrimination'' that the
CEDC's Digital Empowerment and Inclusion Working Group compiled in its
report on model policies and best practices for states and localities
from interviews they conducted? If so, how should we include that
content in the definition?
1. Disparate Impact and Disparate Treatment
14. We seek comment on whether to adopt the definition of digital
discrimination based on disparate impact (i.e., discriminatory effect),
disparate treatment (i.e., discriminatory intent), or both. In response
to the Notice of Inquiry, we received comments in support of each
approach, including arguments that the language of section 60506
encourages or requires us to adopt one approach or the other. We now
seek further comment on which approach (or combination of approaches)
we should take and the legal support for each approach. Commenters in
support of a disparate impact standard put forth a number of arguments
to explain their view. For example, some commenters including the
American Foundation for the Blind, Black Women's Roundtable, the
Multicultural Media, Telecom and Internet Council, and Public
Knowledge, urge the Commission to define digital discrimination as
being based on disparate impact and argue that this is the only way to
create an effective prohibition that captures discrimination as it
happens in the real world. In addition, commenters such as the National
Digital Inclusion Alliance, the National Urban League, and
representatives of several cities and counties across the country
emphasize that facially neutral or even unintentional practices could
still produce discriminatory effects and ``the devastating consequences
are much the same'' as intentional discrimination. Several commenters
further argue that the language of section 60506 supports a disparate
impact approach.
15. Commenters favoring a definition requiring disparate treatment
also offer a variety of arguments to support their view. Some
commenters, such as ACA Connects, International Center for Law &
Economics, AT&T, and the Wireless Internet Service Providers
Association (WISPA), argue that even broadband deployment driven by
legitimate business reasons might lead to uneven deployment, and that
digital discrimination of access should not be understood to include
such conduct. AT&T and the U.S. Chamber of Commerce further assert that
a rule defining digital discrimination based on disparate impact alone
would chill broadband investment and harm competition. CTIA-The
Wireless Association (CTIA) maintains that an intent standard is most
consistent with Congress's and the Commission's overall efforts to
improve broadband access and affordability and the many challenges
involved in broadband deployment. Some commenters also argue that the
language of section 60506 does not support a definition of digital
discrimination that includes disparate impact.
16. We seek further comment on this record and whether and how to
incorporate disparate impact or disparate treatment in our definition,
either independently or in some combined formulation, to best achieve
the goal established by Congress in section 60506 to ``facilitate equal
access.'' Are some commenters' assertions correct that the problem of
digital discrimination is primarily one of disparate impact such that
our efforts to ``facilitate equal access'' would fall far short if we
focus solely on disparate treatment? Alternatively, would a definition
centered on disparate impact chill investment and deployment? If so,
why, and what is the likely scope of any disinvestment effect that
considering disparate impact might cause, and would the harms of
disinvestment (if any) outweigh the benefits of adopting such an
approach, including but not limited to potentially greater access to
broadband services? Would our consideration of disparate impact present
practical challenges for entities subject to any rules we adopt or to
victims of digital discrimination? Additionally, would considering
disparate impact present practical administrative challenges for the
Commission, or would it be simpler to administer because the Commission
would only need to analyze the effect of the particular action and its
business justification, rather than trying to discern intent? If there
are administrative or compliance burdens associated with a disparate
impact approach, how might the Commission minimize those burdens to
best achieve the statutory goal of facilitating equal access? Under a
disparate treatment approach, by contrast, how difficult would it be to
discern a broadband
[[Page 3685]]
provider's intent for particular service and deployment decisions? Are
there circumstances in which an intentionally discriminatory policy or
practice does not produce discriminatory effects? Should the Commission
address such a practice in order to satisfy its mandate to ``prevent[
]'' digital discrimination, regardless of its effects?
17. Certain commenters also offer arguments in favor of each
approach based on the statutory text of section 60506 and U.S. Supreme
Court precedent. Some commenters argue that Supreme Court precedent in
the Inclusive Communities decision, which concluded that the Fair
Housing Act encompasses claims based on disparate impact, requires us
to adopt a disparate treatment approach to implement section 60506,
while others argue that the same precedent requires us to adopt a
disparate impact approach. Some commenters further point to statutory
language and context, separate from this precedent, as reasons for us
to adopt each approach.
18. We first seek comment on whether the Inclusive Communities
decision applies to our actions in this proceeding. As an initial
matter, is this decision the controlling precedent under which we
should consider this issue? Is there other judicial precedent we should
consider, instead of or in addition to this decision, to guide our
interpretation of section 60506? Are section 60506's design and
operative language sufficiently similar to the Fair Housing Act and the
other civil rights statutes discussed in Inclusive Communities to make
the Supreme Court's textual analysis in that decision applicable to
section 60506? Assuming that Inclusive Communities is binding or even
helpful precedent for our task, we seek comment on the standard we
should derive from the decision and apply to our analysis of section
60506. In the course of concluding that disparate impact claims are
cognizable under the Fair Housing Act, the Supreme Court stated that
antidiscrimination laws should be interpreted to encompass disparate
impact claims when (1) the statutory text refers ``to the consequences
of actions and not just to the mindset of actors,'' and (2) ``that
interpretation is consistent with statutory purpose.'' Should we follow
this two-pronged analysis? In its comments, Verizon frames its argument
according to three ``textual through-lines'' it divines from the
Inclusive Communities decision: (i) Congress's use of the language
``otherwise adversely affect'' or ``otherwise make unavailable''; (ii)
the placement of these types of ``catchall phrases looking to
consequences'' at the end of lengthy sentences that ``begin with
prohibitions on disparate treatment''; and (iii) the placement of this
language in the operative text of the statute. Should we understand
this proposed framework to be a part of, or to supersede, the two-
pronged test identified by the Supreme Court? Is the framing Verizon
suggests unduly restrictive given the text of section 60506 and
Congress's overarching goal of ensuring ubiquitous access to broadband
services across the United States?
19. We also seek comment on the view shared by Lawyers' Committee
for Civil Rights Under Law and the Multicultural Media, Telecom and
internet Council that the Inclusive Communities standard encourages us
to read section 60506 as primarily addressing disparate impacts. These
commenters first argue that section 60506 is focused on the
consequences of actions and not the mindset of actors. They identify
subsection 60506(a)--which states that it is the policy of the United
States to ensure that all people ``benefit from equal access to
broadband''--as operating to shift the statute's focus to the
consequences of actions rather than the intent of actors in the same
way that the Supreme Court interpreted the term ``otherwise'' in the
context of the Fair Housing Act. Furthering this argument, the
Multicultural Media, Telecom and internet Council asserts that the
definition of ``equal access'' in subsection 60506(a)(2) is focused on
the impact of provider practices on a subscriber's ``equal opportunity
to subscribe,'' not on provider intent. The Lawyers' Committee for
Civil Rights Under Law argues that subsection 60506(b)(2)--which
directs the Commission to identify necessary steps to ``eliminate
discrimination'' based on the statute's listed categories --similarly
refers to consequences, and that subsection 60506(c)(3), in allowing
the Commission to prohibit discrimination based on ``other factors [it]
determines to be relevant'' contains the kind of ``consequence-oriented
catchall[ ]'' that the Supreme Court has found instructive in
determining the appropriateness of a disparate impact approach. In this
regard, it also argues that interpreting section 60506 to encompass
disparate impact claims is consistent with the statutory purpose,
satisfying the second prong of the Inclusive Communities inquiry,
because the language of subsection 60506(a) evinces Congress's ``clear
intent to create a world where all Americans can maintain equal access
to broadband.'' We seek comment on these arguments and whether they
should persuade us to adopt a definition of digital discrimination
based on (or including) disparate impact.
20. We next seek comment on the view of Verizon, AT&T, and
USTelecom, which all argue that Inclusive Communities should limit our
definition of digital discrimination to include only intentionally
discriminatory acts. Verizon argues that section 60506 lacks the key
word ``otherwise,'' which the Supreme Court has noted signals a shift
in the statutory language away from an actor's intent to the
consequences of the actor's actions. Verizon, contrary to the Lawyers'
Committee for Civil Rights Under Law's argument, contends that the
statute lacks the sort of ``catchall'' phrase the Court has previously
used to identify statutes that allow for disparate impact claims or any
``effects-based language.'' Instead, Verizon interprets Congress's
direction in subsection 60506(b)(1) as focused on the ``motive'' of the
acting entity, not on whether the action results in disparate impact.
AT&T and USTelecom similarly argue that section 60506 lacks the phrases
that the Court has previously found to support claims under a disparate
impact analysis, and also assert that section 60506's use of the phrase
``based on'' when formulating the prohibition ``requires a showing of
purposeful discrimination rather than incidental effects.'' And as a
structural matter, AT&T asserts that subsection 60506(a) is only
aspirational and the fact that subsections 60506(b) and (c) do not
specifically refer to equal access ``within any given provider's
service area,'' implies that Congress did not intend to apply a
disparate impact standard. We seek comment on these arguments and
whether they should persuade us to adopt a definition of digital
discrimination based solely on disparate treatment.
21. We seek comment on various additional interpretative questions.
Under Supreme Court precedent, a ``business necessity'' generally
constitutes a defense to a discrimination claim that is based solely on
disparate impact. In directing the Commission to take into account
``issues of technical and economic feasibility'' when adopting our
rules, did Congress effectively build a business justification defense
into section 60506? If so, would this indicate that Congress intended
for section 60506 to encompass claims of digital discrimination based
on disparate impact? For commenters arguing that the statute only
permits liability for intentional digital
[[Page 3686]]
discrimination, how would the Commission account for technical and
economic feasibility in that circumstance? Should we understand
Congress to have intended to allow providers to justify intentional
discrimination on the basis of technical and economic feasibility? Are
there other examples commenters can provide of a statute only providing
a business justification defense to a claim of intentional
discrimination?
22. Some commenters argue that the Commission should adopt rules
that encompass disparate impact claims because the statute does not
specify that intent is a required element of digital discrimination,
and Congress has included such language in recent telecommunications
related consumer protection laws, thus indicating that Congress
intended to not require discriminatory intent. We seek comment on these
views. We also seek comment on whether broadband providers are already
subject to laws and regulations prohibiting intentional discrimination.
And if so, do such laws extend to the full scope of digital
discrimination contemplated by section 60506? For example, do they
apply only to cable franchises, and only to discrimination based on
income? Do they apply only to common carriers with respect to common
carrier services? Are there state or local laws that address digital
discrimination that we should note? If broadband providers are already
subject to laws of general applicability preventing intentional
discrimination, does that suggest section 60506 includes instances of
disparate impact? Or are there intentionally discriminatory practices
our rules could capture that are not already prohibited by other laws
and regulations? We seek comment on these differing perspectives.
23. We also seek comment on AT&T's structural argument that under a
disparate impact approach, section 60506 would be on a ``collision
course'' with the other broadband provisions of the Infrastructure Act.
AT&T warns that broadband deployment efforts funded through other
provisions in the Infrastructure Act ``might skew [a provider's]
deployment ratios for households inside and outside of protected
classes,'' and thus increase that provider's risk of liability under a
rule that includes a disparate impact standard. Do others agree with
this assertion that there is a tension between a disparate impact
approach and the Infrastructure Act's deployment objectives? If so, how
could we structure our rules to mitigate these concerns? Would a
prohibition focused solely on discriminatory intent fit within the
Infrastructure Act's other broadband-related provisions better than a
rule that includes disparate impact liability? ACA Connects argues
that, in contrast to statutes like the Civil Rights Act of 1964, the
Fair Housing Act, and the Equal Credit Act, there is no record of a
history of discriminatory conduct in the telecommunications industry
that could justify adoption of a disparate impact rule. We seek comment
on this reasoning. Is it accurate that those entities currently
providing broadband services (or their predecessors) have no record of
a history of discriminatory action? Would such a record be necessary to
adopt rules to prohibit digital discrimination based on disparate
impact liability?
24. We seek comment on whether the inclusion of income level as a
listed characteristic should guide our understanding of whether the
statute applies to claims of discrimination based on disparate impact
or disparate treatment. CTIA contends that the inclusion of income
level as a listed characteristic is unique compared to Federal civil
rights statutes and its ``novelty'' supports a rule based solely on
discriminatory intent. According to CTIA, an approach to
antidiscrimination laws and claims of discrimination based on income
level under a disparate impact analysis would conflict with subsection
60506(b)'s direction that our rules account for economic feasibility.
In contrast, Public Knowledge rejects the characterization that
prohibiting discrimination based on income level is novel, and
Communications Workers of America, Common Cause et al., and the
Leadership Conference on Civil and Human Rights all point to the
inclusion of income level as an indication that Congress intended
section 60506 to cover a wide range of practices, including those
giving rise to disparate impact claims. We seek further comment on this
divided record. Is the inclusion of income level as a listed
characteristic in an antidiscrimination statute novel on a Federal and
state level? If so, does that counsel in favor of adopting a definition
based solely on disparate treatment, one based solely on disparate
impact, or one based on some combination of the two? Furthermore, how
does a consumer's income level, or the average income level of a
geographical area, relate to economic feasibility in the deployment and
provision of broadband internet access services?
2. Other Components of the Definition
25. We next seek comment on other components of our proposed
definitions. We seek comment to drive our understanding of what
services, entities, and practices should be within the scope of our
definition; how and on what bases we should understand policies and
practices to be justified by technical and economic considerations; who
can be subject to digital discrimination; and how we should determine
when digital discrimination has occurred. We seek comment on each issue
in turn.
26. Covered Services. We first seek comment on the scope of
services that individuals use when they experience digital
discrimination of access. We seek to answer the following question:
what services are consumers using if and when they encounter ``policies
or practices . . . that differentially impact [their] access to
broadband internet access service''? Commenters to the Notice of
Inquiry differ on whether we should extend our definition of ``digital
discrimination of access'' to broadband internet service provided over
a variety of technologies, both fixed and mobile, other communications
services, and services delivered over broadband. These commenters argue
that consumers should not be excluded from enjoying certain civil
rights protections by virtue of the service they are using, and that
some consumers and communities cannot enjoy the benefits broadband has
to offer without having non-discriminatory access to services accessed
over broadband. By contrast, other commenters argue that services other
than broadband are outside the scope of section 60506 and this
proceeding. In the proposed definitions of ``digital discrimination of
access,'' we propose to limit our focus to broadband internet access
service. We seek comment on what technologies our definition should
include.
27. We seek comment on the types of technologies over which
broadband internet access service is provided and to which our rules
should apply. The record reflects that providers can use various forms
of technologies to provision broadband to consumers, including digital
subscriber line (DSL), cable modem, fiber, fixed and mobile wireless,
and satellite. Are these types of technologies correctly understood as
the technologies over which broadband internet access service is
provided, and are there any other types of technologies we should
consider? Does the definition of ``broadband internet access service''
that is provided in Sec. 8.1(b) of the Commission's rules capture the
appropriate scope of technologies such that we should follow the
approach taken in that rule? Should we consider the upload and download
speeds of the types of technologies that providers use
[[Page 3687]]
to provision broadband service and, if so, how? Are there any unique
considerations associated with different technologies we should take
into account and, if so, how should we address them? Does the language
of section 60506 in any way require us to include or exclude broadband
provided over certain types of technologies?
28. We seek comment on including other services, such as other
communications services and services delivered over broadband, into our
definition. In order to achieve the policy that ``subscribers should
benefit from equal access to broadband internet access service,'' and
fulfill our direction to ``facilitate equal access to broadband
internet access service,'' is it necessary that we include other
services in our definition? How do other services relate to that goal?
Or do commenters believe that section 60506's focus on broadband
internet access service reflects congressional intent that other
services not be included in our definition? Are other services distinct
from broadband internet access service in ways that would complicate
analysis of the problem of digital discrimination if we include them?
And would their inclusion complicate administration of and compliance
with any rules we adopt under this definition? If we did include other
communications services or services offered over broadband, what
specific services should we include? Does section 60506 give us
authority to include these types of services in our definition? If not,
can we rely on other sources of authority to do so? If we were to
address discrimination issues regarding other services under other
authority, would it be better to develop dedicated rules for those
services? Should we, at minimum, include services we find to provide
the functional equivalent of broadband internet access service?
29. Covered Entities. We next seek comment on what types of
entities should be covered by our definition of digital discrimination
of access. We seek to answer the following question: whose ``policies
or practices . . . that differentially impact consumers' access to
broadband internet access service'' should be covered by our
definition? In the record developed in response to the Notice of
Inquiry, some commenters argue that we should extend our definition
broadly beyond broadband providers to include entities working on a
provider's behalf; those involved in any of the logistical steps to
provide broadband, such as local and state governments and those who
maintain network infrastructure; and generally to ``any entity that can
affect'' an individual's ability to access or afford broadband, such as
a business owner or landlord. These commenters note that actions by a
variety of entities can differentially impact consumers' access to
broadband and thus, to address digital discrimination as directed by
Congress, we should include these types of entities within the scope of
the rules we adopt. By contrast, the National Multifamily Housing
Council and the National Apartment Association assert that the
statutory language limits our focus to broadband providers.
30. We seek comment on whether we should understand ``digital
discrimination of access'' to include policies or practices by a
broader range of entities than broadband providers. Can entities other
than broadband providers engage in or contribute to digital
discrimination of access? If so, what are those entities and can they
all be covered by the rules we ultimately adopt in this proceeding? Are
these types of entities different from broadband providers in ways that
would complicate analysis of the problem of digital discrimination if
we defined it to include them? And would their inclusion complicate
administration of and compliance with any rules we adopt? Would
covering a broader range of entities allow any rules we adopt to better
adapt to changes in the provision of broadband or how digital
discrimination occurs? Should we instead understand our definition to
include only broadband providers and those working on their behalf? How
would we understand when an entity is working on behalf of a broadband
provider? To the extent we include agents of broadband providers in our
definition, what expectations and obligations should we place on agents
who are simply executing at their principal's direction? If we limit
our definition to include only broadband providers, would such an
approach leave a loophole or be too narrow to allow us to fulfill our
direction to ``facilitate equal access to broadband internet access
service''? Do we have authority to extend our rules to entities other
than broadband providers? Should the analysis of what constitutes
digital discrimination of access differ as applied to broadband
providers and their related entities on the one hand, and entities
unrelated to broadband providers on the other? If we understood covered
services to extend beyond broadband service, are there other
considerations we should take into account regarding covered entities?
31. Prohibited Practices and Policies. We seek comment on how the
Commission should understand the policies or practices that can lead to
digital discrimination. We seek to answer the following question: what
``policies or practices . . . differentially impact consumers' access
to broadband internet access service''? In the record developed in
response to the Notice of Inquiry, some commenters suggest we consider
policies and practices related to broadband infrastructure deployment,
network upgrades, marketing or advertising, service provision, network
maintenance, and customer service; service provider use of algorithms
to make decisions about deployment and other aspects of providing
internet service; and privacy and security practices. These commenters
argue that prohibiting discriminatory practices in these areas is
necessary because they can lead to inequitable outcomes for consumers
or exacerbate existing biases.
32. We seek comment on what policies and practices should be
covered by our definition. Do commenters agree that the practices and
policies suggested in response to the Notice of Inquiry can
differentially impact consumers' access to broadband? What specific
practices and policies related to broadband infrastructure deployment,
network upgrades, marketing or advertising, service provision, network
maintenance, customer service, sales, and ongoing technical support can
do so? For example, can practices and policies related to certain terms
and conditions of service, such as those concerning speeds, data caps,
throttling, late fees, equipment rentals and installation, contract
renewal or termination, customer credit or account history, promotional
rates, or price, constitute or lead to digital discrimination? Are
there practices and policies related to how broadband internet access
service is sold or how technical support is provided that can lead to
digital discrimination? How can we account for the idea that policies
and practices can cause or contribute to digital discrimination in
combination, if not individually? Can bias in algorithms lead to
digital discrimination? And, what specific device and consumer data
protection measures, and privacy and security practices, can
differentially impact consumers' access to broadband? Are there other
policies and practices that we should specifically consider in the
context of understanding how to define digital discrimination of access
to best meet our direction to ``facilitate equal access to broadband''?
33. We seek comment on how the language of section 60506 should
influence the policies and practices we consider part of digital
discrimination. Section 60506 also defines ``equal
[[Page 3688]]
access'' with reference to ``comparable speeds, capacities, latency,
and other quality of service metrics'' and ``comparable terms and
conditions.'' Does this language give us discretion to include any
practices that relate to quality of service, including non-technical
aspects of service, such as customer service, marketing or advertising,
or terms and conditions related to contract renewal, account history,
or price? Or, does the preceding reference to ``speeds, capacities[,
and] latency'' reflect Congress's intent for the Commission to consider
only policies and practices related to technical aspects of quality of
service? What types of policies and practices should fall within the
statutory phrase ``terms and conditions''? Does that phrase include
pricing? What are the limitations, if any, on our ability to include
policies and practices that impact technical aspects of existing
service, and the decision to deploy service in the first instance?
34. Technical and Economic Feasibility. We seek comment on how our
definition should ``tak[e] into account'' justifications on the basis
of technical and economic feasibility. In the language of our proposed
definitions: in what circumstances is a differential impact to
consumers' access to broadband ``justified by genuine issues of
technical or economic feasibility''? In the record developed in
response to the Notice of Inquiry, some commenters argue that providers
should have a safe harbor and presumption of nondiscrimination when
certain conditions are met or certain circumstances are present. These
commenters explain that in these situations a lack of deployment is
most likely due to economic or technical factors that make deploying
broadband impractical, and that providing a safe harbor in these
instances will allow us to more thoroughly investigate more probable
instances of digital discrimination. Other commenters argue that we
should instead analyze claims of infeasibility on a case-by-case basis.
Some of these commenters argue that individualized scrutiny and strict
standards are necessary to fulfill Congress's intent as set forth in
section 60506, to ensure that meritless assertions of infeasibility do
not impede legitimate complaints alleging digital discrimination of
access.
35. We seek comment on whether to adopt safe harbors, establish a
case-by-case standard for infeasibility, or both. As an initial matter,
we seek comment on what the legal significance of any such safe harbor
should be, in terms of shifting the burden of proof or otherwise. What
would be the practical implications of adopting safe harbors generally
or a case-by-case standard? Would a bright line safe harbor approach be
more likely to excuse conduct that, on an individualized review, may
not be justified? Are there ways we could design the safe harbor or
safe harbors to increase the odds that we successfully identify cases
of digital discrimination while excluding only non-meritorious claims
or charges? Would a case-by-case standard be more effective at
identifying justified, and unjustified, conduct? If so, does that
increased effectiveness outweigh any administrative and compliance
burdens that may accompany an individualized approach? How can we
minimize any identified burdens? Would requiring an individualized
analysis for each case of alleged infeasibility place an unreasonable
burden on providers or create uncertainty that could chill network
investment? Would a combination of each approach, setting an
individualized analysis accompanied by certain safe harbors, alleviate
any identified concerns with each approach individually? Does the
language of section 60506 require us to take one approach or the other?
Would an individualized approach create uncertainty and potentially
chill investment? Or, would a safe harbor approach effectively immunize
problematic behavior so as to undermine our ability to facilitate equal
access to broadband?
36. We seek comment on the substantive standard we should require
under either approach, to best balance congressional direction to
``facilitate equal access'' while ``taking into account the issues of
technical and economic feasibility presented by that objective.'' If we
were to provide a safe harbor, which circumstances would be appropriate
for a safe harbor? Should we provide a safe harbor under limited
circumstances, encompassing a limited set of business necessity
exemptions? Should we provide a safe harbor under a wider variety of
circumstances and, if so, what should those circumstances be? Would a
safe harbor be appropriate when a provider acted in reliance on
Commission requirements or funding commitments, such as merger
conditions, those associated with universal service funding, or build-
out? Or would a safe harbor be appropriate when conduct occurs that is
outside of a provider's control, such as third-party conduct? If we
adopted an individualized analysis instead or in addition, what should
be the standard for technical and economic infeasibility? How should we
determine that an issue of feasibility is ``genuine,'' and are there
standards or concepts in other contexts we should consider to do so?
For example, should we look to the summary judgment standard in Federal
court, which requires the party requesting relief to ``show[ ] that
there is no genuine dispute as to any material fact,'' or the final
step of the McDonnell Douglas burden-shifting analysis where a
complainant can show that a proffered justification for allegedly
discriminatory conduct is mere pretext? Should technical infeasibility
require a showing that providing service was technically impossible, or
some lower bar? Should economic infeasibility require a showing that
providing service was unprofitable based on marginal cost, average
cost, or some other basis? On what time horizon should we consider
profitability or analyze claims of technical or economic infeasibility?
Should we establish a bright line ``standard where a profit margin
reduction between neighboring areas . . . does not constitute
[economic] infeasibility''? Should we adopt different safe harbors, or
a different individualized analysis, for different types of providers,
or differently-situated providers? Does the language of section 60506
require us to include any particular safe harbors or factors in a
standard for individualized analysis, beyond accounting for ``technical
and economic feasibility''? What specifically does it require us to
include? More generally, how should we construe ``feasibility'' within
the meaning of section 60506? Should we understand it to refer to
capability, convenience or reasonableness? What would be the practical
impact of each such interpretation? Should we draw on prior instances
of the Commission interpreting and using language similar to the phrase
``technical and economic feasibility'', and how specifically would we
apply those instances in the context of section 60506?
37. Consumers. We seek comment on how we should identify those who
might experience digital discrimination of access. We seek to answer
the following question: whose experience of a ``differential[ ] impact
[on] . . . access to broadband internet access service,'' whether
intended or not, is the focus of Section 60506? In the record developed
in response to the Notice of Inquiry, one commenter argues that we
should consider claims by individuals and communities that meet one of
the listed characteristics, because entire communities may experience
digital discrimination. Another argues that we
[[Page 3689]]
should not include non-subscribers or ``consumers generally.''
38. We seek comment on what consumers should be covered by our
definition of digital discrimination of access. Should we understand
digital discrimination of access to be a problem experienced by
individuals or communities, or both? Is digital discrimination
experienced differently at the individual and community levels such
that our definition would need to account for that difference? What are
the practical or administrative costs and benefits to the Commission,
providers, and those who might suffer digital discrimination if both
communities and individuals are covered by our definition? Does section
60506 require us to include or exclude communities from coverage?
39. Do commenters agree with ACA Connects that we should limit our
concept of ``subscribers'' to only current subscribers, and not include
non-subscribers or consumers generally? Would excluding non-subscribers
imply that those who do not currently subscribe to broadband cannot
experience digital discrimination of access? Is such an approach
reasonable, or does it exclude those who might experience digital
discrimination most acutely? If we adopt such a definition, how would
we account for consumers who don't subscribe to broadband because the
service is not available in their community, possibly because of
digital discrimination? Does the use of the word ``subscribers'' in
subsection 60506(a) require that the scope of our digital
discrimination rules be tied to subscription status, or does the lack
of reference to subscribers and general direction to ``facilitate equal
access'' in subsection 60506(b) counsel in favor of covering non-
subscribers? What would be the practical impact of limiting coverage to
subscribers on the one hand, or extending it to non-subscribers on the
other? If we include non-subscribers, are there distinctions between
types of non-subscribers that we should consider, such as those who are
and are not actively seeking broadband service? What distinctions or
subcategories of non-subscribers should we consider and why?
40. Listed Characteristics. In our proposed definition, we propose
to include the same characteristics as bases for discrimination as
those identified in section 60506. We seek comment on how to give
meaning to these characteristics and whether we should include any
additional characteristics in the rules we ultimately adopt. In
response to the Notice of Inquiry, commenters suggest interpreting the
listed characteristics in accordance with existing ``legislation,
regulations, and precedent,'' such as the Civil Rights Act of 1964 and/
or the New York City Human Rights Law, because using existing
understandings reduces uncertainty. Other commenters argue that the
Commission should include additional characteristics such as disability
status, age, sex, sexual orientation, gender identity and expression,
familial status, domestic violence survivor status, homelessness, and
English language proficiency. These commenters argue that the
Commission should recognize characteristics of communities that are
historically marginalized or underserved because doing so is consistent
with Congress's intent in section 60506. By contrast, other commenters
assert that the listed characteristics are exclusive, arguing that
Congress was deliberate in its choice to specify the listed
characteristics.
41. We seek comment on whether we should give further meaning to
the characteristics listed in the statute and included in our proposed
definition: income level, race, ethnicity, color, religion, and
national origin. Is the meaning of some or all of these terms
sufficiently established such that we do not need to give them further
meaning? Even if their meaning is established, would it promote
certainty to adopt further definitions or explanations consistent with
other laws or precedent? Or would adopting definitions unnecessarily
decide issues we could resolve on a case-by-case basis? If we did adopt
further definitions based on existing law or precedent, what resources
should we use to give meaning to the listed characteristics? Would the
Civil Rights Act of 1964 or the New York City Human Rights Law most
effectively define some or all of the listed characteristics? What
other legislation, regulations, or precedent should we consider to give
meaning to the listed characteristics?
42. We seek comment on whether we should expand our definition to
include characteristics beyond those listed in section 60506. (We note
that section 60506 directs the Commission to adopt rules to facilitate
equal access to broadband internet access service, ``including''--but
not limited to--addressing discrimination based on the listed
characteristics.) If we did, what additional characteristics would we
include? Should we include some or all of disability status, age, sex,
sexual orientation, gender identity and expression, familial status,
domestic violence survivor status, homelessness, and English language
proficiency, as suggested in the record? Should we include those
residing in certain geographic areas, such as urban or rural areas, or
areas that have experienced historic redlining? If we adopted some
additional characteristics, but not all, on what basis should we decide
which to include and which to exclude? Are these characteristics
distinct from those listed in section 60506, or from one another, in
ways that would complicate analysis of the problem of digital
discrimination if we defined it to include them? And would their
inclusion complicate administration of and compliance with any rules we
adopt under this definition? Are the meanings of these various
characteristics clear, or would we need to further define them? How
would we do so? Might we adopt the meanings used by other Federal
agencies such as the Equal Employment Opportunity Commission? If we
decline to include additional characteristics, are there nonetheless
circumstances in which we could consider the impact based on an
unlisted characteristic when analyzing claims of digital discrimination
based on a listed characteristic?
43. What would be the statutory basis for including additional
characteristics in our definition? The term we propose defining,
``digital discrimination of access,'' in subsection 60506(b)(1) must be
``based on income level, race, ethnicity, color, religion, or national
origin.'' Does the Commission have discretion to include additional
characteristics for purposes of implementing section 60506, or does the
presence of specific listed factors in subsection 60506(b)(1)
demonstrate congressional intent to limit our focus to those factors?
Could we take action to address inequities faced by those with unlisted
characteristics under a different provision of section 60506: the
policy statement in subsection 60506(a)(3) that we should ensure ``all
people of the United States'' benefit from equal access; the broader
direction in subsection 60506(b) to ``facilitate equal access''; or the
separate direction in subsection 60506(c) to collaborate with the
Attorney General to prohibit deployment discrimination based on ``other
factors the Commission determines to be relevant''? Would any such
action need to be distinct from action related to this definition of
``digital discrimination of access''? Or should we read these other
provisions to reflect Congress's intent for the listed characteristics
to evolve as communities or individuals demonstrate they face digital
discrimination? Are there other sections of the Communications Act, or
[[Page 3690]]
other Federal legislation, that would give us authority to include
certain characteristics in our rules preventing digital discrimination
of access?
44. Differential Impact. We seek comment on the standard or
standards we should use to determine when consumers face digital
discrimination, relevant comparators, and data we should consider. We
seek to answer the following question: when is consumers' access to
broadband internet access service ``differentially impact[ed]'' by
policies or practices, whether intentionally or not? We seek comment on
how the Commission should compare services, terms, and conditions to
make this determination; the geographic area we should compare across;
and data sources we should look to in making this determination.
Commenters in response to the Notice of Inquiry suggest comparing
technical metrics such as speed, capacity, and network outages, as well
as non-technical factors such as caliber of customer service.
Commenters variously cite geographic boundaries such as municipal lines
as well as a covered entity's service area as methods for defining a
given area. Commenters also point to different ways that the Commission
can use data in these efforts, such as by monitoring the status of
fiber deployments in different communities and examining whether there
exists a statistical correlation between the characteristics listed in
section 60506 in a community and lower levels of access to broadband.
45. As an initial matter, we seek comment on the scope of our
inquiry when identifying instances of differential impact. Should we
understand ``equal access'' and ``discrimination of access'' to focus
on availability of broadband, adoption of broadband, quality of
broadband, or some combination of these factors? Are there other
factors we should consider? The Electronic Frontier Foundation and
other commenters observe that availability of broadband hinges on its
deployment and highlights the lack of deployment in underserved areas
despite the economic feasibility of doing so. The Multicultural Media,
Telecom and internet Council argues that the statute should be viewed
from the ``perspective of subscribers,'' which they assert means the
Commission should also ``focus on issues related to broadband adoption,
not just broadband availability.'' Other commenters agree that we
should consider the barriers that affordability and a lack of digital
literacy present to adoption of services, even where available.
Conversely, the International Center for Law & Economics posits that
matters of adoption and affordability have no basis in the statutory
language, which it argues focuses only on physical availability. We
seek comment on these arguments. When determining whether a consumer's
access to broadband has been ``differentially impact[ed],'' should we
look to availability of service or should we look to adoption,
affordability, and quality of service where service is already
available? What would be the practical impact of either interpretation,
and would it be appropriate to consider both? Is there a statutory
basis for including barriers to adoption in our definition? We also
seek comment on how we should consider substitutability of service in
determining whether a given area benefits from equal access. For
example, does the availability of a comparable service where another
service is unavailable mean that a consumer ``benefit[s] from equal
access'' in a given area? Should the availability of one service
utilizing a different technology, such as 5G wireless service versus
traditional wireline service, impact the analysis where the other is
otherwise incomparable or unavailable?
46. We seek comment on the standard and methods we should use to
identify when a consumer's broadband internet access is differentially
impacted with respect to the technical aspects of available service.
Should we simply compare network performance metrics, and if so, at
what threshold would we determine that performance was meaningfully
better or worse for certain consumers? The National Digital Inclusion
Alliance argues for establishing a prescriptive range for the quality-
of-service metrics that would indicate that a service is
``comparable.'' If we establish prescriptive ranges of acceptable
differences in service metrics, how do we ensure those ranges are not
overly broad or narrow? Should we adopt different ranges depending on
the service or geographic area? Is the number of relevant variables too
large for this approach to be easily administered and complied with?
How will any methods we adopt comparing technical quality of service
need to change across services and technologies? What analytical
approach should we take to account for the technical practicalities of
provisioning broadband, such as when providers conduct network
upgrades, network degradation occurs, or a provider experiences a
network outage? Should we temporarily relax these standards when these
circumstances occur? Some commenters argue that the Commission should
require providers to undergo network performance testing similar to
models that they assert have previously been effective. If we adopt
periodic assessment requirements, how often would be practical to
assess technical performance while accounting for changes that may
occur over time, such as network upgrade cycles? How could we minimize
the burden of this approach on providers? Should we assess
comparability of service quality from the consumer's perspective and
provide that service quality and terms and conditions are
``comparable'' if a consumer would not recognize differences in their
broadband experience? Should we consider the unique needs of particular
communities? What metrics and data sources can we employ in making
these comparisons? Should we measure, for example, rates of service
interruptions and cut-offs? Does section 60506 counsel that we take any
particular approach when assessing comparability and determining
whether there is a differential impact? For example, do the terms
``equal access'' or ``discrimination'' include any concept of scope or
exclude any requirement of materiality for such differential impact? We
also seek comment on whether and how broadband consumer labels might
facilitate enforcement of any potential rules we adopt, either from the
perspective of informing consumer complaints or Commission enforcement
actions.
47. We seek comment on the standard and methods we should use to
identify when a consumer's broadband access is differentially impacted
with regard to non-technical aspects of available service. How can we
determine when, for example, customer service, late fees, equipment
rentals and installation policies, access to specific service plan
offerings or speeds, contract renewal or termination policies,
availability of customer credit or account history practices, and
prices are meaningfully better or worse for certain consumers? Should
we establish certain known thresholds to promote compliance and make it
easier for consumers to know when they have experienced digital
discrimination? Or is this inquiry better suited to a case-by-case
determination? What standard would we use for any individualized
analysis? To the extent we include price in our conception of digital
discrimination, how should we consider plans that are identical along
all features except for price? How should we consider the practice of
price discrimination (i.e., charging different
[[Page 3691]]
consumers different prices for the identical service)?
48. We seek comment on the relevant geographic comparators to use
in identifying when a consumer's broadband access is differentially
impacted. Commenters in response to the Notice of Inquiry suggest
various methods for defining geographic areas for relevant comparators.
The National Digital Inclusion Alliance, for example, proposes that the
Commission use a provider's legally defined service area, such as its
cable franchise area, within a given metropolitan or micropolitan
statistical area. ACA Connects similarly contends that the relevant
area should be defined as a provider's service area, and further argues
that the Infrastructure Act does not provide us with authority to take
a different approach. Conversely, Public Knowledge argues that our
definition ``should be broad and flexible'' and that such an approach
is consistent with the language of section 60506. Public Knowledge
further argues that limiting our inquiry to a provider's service area
would render the Commission incapable of addressing instances where
services are not offered in the first instance as a result of
discriminatory practices. Does the language of section 60506 counsel or
require us to understand this geographic area in any particular way?
The statement of policy in subsection 60506(a)(1) states ``the policy
of the United States'' is that ``subscribers should benefit from equal
access to broadband . . . within the service area of a provider of such
service.'' Does this language reflect that our focus under section
60506 should be limited to a provider's existing service area? If so,
how should a provider's existing service area be defined? Is it in all
census blocks that the provider has a current subscriber? Or is it any
area that the provider could deploy services to within a certain
timeframe, and if so, what is the appropriate timeframe? Should we
include areas in a certain proximity to a provider's current service
area, and if so, what is the appropriate range? In subsection 60506(b),
we are directed to adopt rules to ``facilitate equal access,'' and
``equal access'' is defined with reference to comparable service ``in a
given area.'' Does the use of a different term in that definition
reflect Congress's intent to understand geographic area differently,
and if so, in what way?
49. We seek comment on these methods for understanding the
geographic areas we should compare to determine if access to broadband
internet has been differentially impacted. Should we compare only
current subscribers to other consumers in a provider's service area? If
so, are there instances where the Commission should expand or constrict
the boundaries of such an area? What circumstances would necessitate or
counsel doing so? Would an approach based on a provider's current
service area prevent us from addressing instances when an individual or
community completely lacks access to service from that provider? If we
define the relevant area based on a provider's service area, should
that understanding be cabined by the technology employed (such as wired
versus wireless broadband) when a covered entity offers different kinds
of services? Alternatively, should we adopt a broader understanding of
the relevant area for comparison? Should we compare different providers
within the same service area? Should we tie the relevant area to
municipal boundaries, such as city, county, or state lines? Should we
use concepts such as a metropolitan statistical area to capture similar
areas that are not bound by municipal boundaries? Should we make
comparisons between rural and urban areas, and if so how? Should we
work with state, local, and Tribal governments to identify the
appropriate comparison area? Should we use different concepts of
geographic area in different contexts? Are there any unique
considerations we should take into account when examining differential
impact on the basis of income level?
50. We seek comment on data sources we can or should use to help us
identify instances where consumers' access to broadband internet is
differentially impacted. Commenters highlight various studies in
responding to the Notice of Inquiry, and we seek comment on those
cited. These include, among others, investigations into the correlation
between median area income and broadband deployment; the sources and
effects of digital redlining; availability of fiber and high-speed
broadband in lower-income and marginalized communities; and broadband
gaps in rural communities. AT&T, for example, cites a study that
examines publicly available data from the Commission and the U.S.
Census Bureau and asserts that non-white and lower income households
are not systemically and disproportionately underserved. Are these
assertions well grounded? Do commenters agree with this study's
conclusions, and why or why not? Should the Commission utilize U.S.
Census Bureau demographic data more generally in identifying instances
of digital discrimination of access? Conversely, the Electronic
Frontier Foundation and other commenters cite to a survey in California
that examines racial and income disparities and the correlation between
historical and digital redlining. Should the Commission consider survey
data such as the study cited? Is the study offered by these commenters
persuasive, and why or why not? Are there studies aside from those
cited in the record that the Commission should examine, and why? For
example, a study co-published by the Associated Press and The Markup
examined services offered by major providers in various cities, where--
despite being only blocks apart and being charged the same amount--one
community, usually lower income and more racially diverse, received
much slower internet service compared to another. We seek comment on
the data presented and what accounts for the disparities identified.
51. We also seek comment on how we should leverage our own existing
data and whether we should undertake new data collection efforts. What
existing data sources could help us to identify when consumers' access
to broadband internet has been differentially impacted? For example,
should we look to the Broadband Data Collection, the Broadband Data Act
mapping process, or other collections? How specifically should we use
the data offered by these collections? Should these or other data
sources be used individually or in combination with other sources,
whether from the Commission or originating externally, and if so, how?
How can we best leverage the data collected through our informal
consumer complaint process? What steps can the Commission take,
including making new data available, to enable individuals and
communities to identify digital discrimination of access? Are there
ways we can improve existing sources of data, including the Broadband
Data Collection and National Broadband Map, so that they can be used in
evaluating digital discrimination of access in the future? If we
undertake new data collections, what data should we collect? Should we
collect data on broadband adoption not captured by other collections;
on marketing and advertising practices; on broadband usage and
adoption; on technical and non-technical quality of service; pricing
and service plan availability; or on other subjects? How should those
data collections be designed to maximize their utility for the
Commission's efforts to address digital discrimination of access, while
minimizing the burden on entities who
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must provide these data? If the Commission does collect new data, at
what geographic level should this data be collected so that it can
adequately address complaints of digital discrimination but not be too
burdensome on providers? If the Commission collects new data through
surveys, what kind of information should such surveys collect, and from
whom? In conducting such surveys, are there other agencies,
institutions, or organizations the Commission should consider
partnering with?
B. Revising the Commission's Informal Consumer Complaint Process
52. We propose to revise our informal consumer complaint process to
accept complaints of digital discrimination of access, as directed in
section 60506. In the Notice of Inquiry, we explained that the
Commission receives complaints through its Consumer Complaint Center
and sought comment on how to modify our complaint processes to best
execute this direction. In response, commenters suggest a variety of
modifications to our consumer complaint process for purposes of
accepting digital discrimination complaints. In light of this record,
we propose to revise our consumer complaint process to (1) add a
dedicated pathway for digital discrimination of access complaints; (2)
collect voluntary demographic information from filers who submit
digital discrimination of access complaints; and (3) establish a clear
pathway for organizations to submit digital discrimination of access
complaints. We further propose to make anonymized complaint data
available to the public through the FCC's Consumer Complaint Data
Center to inform third-party analyses. We seek comment on these
proposals, and on any other revisions to our informal complaint rules
and process that would be appropriate with respect to complaints
regarding digital discrimination of access.
53. We seek comment on our proposal to add a dedicated pathway for
digital discrimination of access complaints to our consumer complaint
system. Commenters who propose this idea argue we should do so because
it will help the Commission identify trends that warrant further
action. Do others agree that adding a digital discrimination of access
pathway would offer these benefits? Or are digital discrimination
complaints better understood as a subset of ``internet'' complaints,
for which there is already a category on our Consumer Complaint Center?
If we did adopt this proposal--demographic information aside--should we
create new or different fields for the digital discrimination of access
complaint form from those offered for other types of complaints? If so,
what specific changes should we make and what purpose would they serve?
54. We seek comment on our proposal to establish a pathway for
organizations representing communities experiencing digital
discrimination of access to submit digital discrimination complaints.
We propose establishing a complaint pathway for state, local, Tribal,
and community-based organizations, which would include separate
processes for individual and organizational filers. Commenters who
support this proposal argue that it will ensure that organizations can
advocate on behalf of disenfranchised and marginalized individuals who
are either unserved or underserved as a result of digital
discrimination of access; and that it will enable the Commission better
to identify and respond to substantive complaints and collaborate with
state, local, and Tribal governments. What specific improvements can be
made to the current informal consumer complaint process to make it more
accessible for submission by organizations on behalf of groups of
individuals? In what ways would a digital discrimination of access
complaint from a community-based organization be different from an
individual consumer's digital discrimination complaint, and how could
we account for those differences in our consumer complaint system?
Should organizational complainants be expected or required to share
statistics and other information regarding the community in question
and the services offered, or not offered, so that the Commission could
more efficiently evaluate the bases of the complaint? What tools and
resources should the Commission provide community-based organizations
in order to submit digital discrimination of access complaints on
behalf of the individuals they serve? Is the informal complaint process
the appropriate entry point for organizational submissions? Would a
dedicated collection portal help to differentiate consumer versus
organizational submissions and better set clear expectations for the
filer? Should we impose associational standing or other requirements on
the filing of organizational complaints? If so, what such requirements
would be appropriate?
55. We seek comment on our proposal to collect voluntary
demographic information from filers who submit digital discrimination
of access complaints. Commenters who support this idea argue that we
should collect demographic information from individuals filing
complaints because doing so will enable us to better identify
underlying patterns of discrimination that complainants themselves may
be unaware of, and thus increase the efficiency and utility of the
informal complaint process. We seek comment on how we should collect
demographic information from filers who submit digital discrimination
of access complaints. What specific demographic information should we
collect? Should we instead make the submission of demographic
information mandatory for digital discrimination of access complaints?
Would requiring demographic information discourage the filing of
complaints, and if it would, would this potential loss of complaints be
justified given the potential benefits of collecting this information?
If the complaint process requests, but does not demand, demographic
information, should complainants be advised that their information will
not be readily useable for uncovering the presence of digital
discrimination of access? Would doing so give complainants an incentive
to provide demographic information? Are there specific privacy concerns
we should account for when collecting this demographic information? How
would we accommodate organizational complainants in any demographic
information requirements we adopt? Given the temptation to make
frivolous, malicious or prank complaints, and the ease of machine
generation of such complaints, should complainants be required to
provide enough information about themselves to enable the commission to
verify the existence of the complainant? Does the collection of
demographic information have an impact on a filer's willingness to
complete the complaint form? If a complaint is misfiled through a
different pathway, how should we collect demographic information from
that filing?
56. We seek comment on any other changes we should make to our
informal consumer complaint process to accept complaints of digital
discrimination of access. Commenters variously propose that we make it
easier to file a complaint for individuals who do not speak English;
develop screening questions to guide consumers toward the appropriate
category for their complaint; and improve our processes for submitting
a complaint other than through our internet-based Consumer Complaint
Center. We seek comment on whether to adopt these suggestions and, if
we do, how to best implement them. We seek
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comment on whether the Commission should engage in some form of
complaint validation. Is it sufficient that providers who may be
impacted by such complaints are able to review these complaints and
respond?
57. Making Complaint Data Available to the Public. We seek comment
on our proposal to make digital discrimination complaint data available
to the public through the FCC's Consumer Complaint Data Center. The
record in this proceeding reflects widespread support for ensuring that
the data collected from digital discrimination of access complaints,
including demographic information, are made publicly available for
third-party review and analysis. Making these data available could
promote transparency and empower third parties to identify trends in
digital discrimination. We seek comment on how to best make these data
publicly available and useful while protecting complainant privacy.
Some of the data currently collected from consumer complaints are made
publicly available on our website in the Consumer Complaint Data
Center. Should we make the same data publicly available for digital
discrimination of access complaints? To the extent we receive and make
available demographic data unique to digital discrimination complaints,
to protect the privacy of complainants, we propose taking steps to
aggregate, anonymize, or otherwise de-identify those data. We seek
comment on how best to do so while protecting complainant privacy.
Would it be useful and effective to buffer, aggregate, or remove some
information in the data to protect consumer privacy? Instead, are
disaggregated data necessary to be useful? If so, how could we protect
the privacy of complainants while still publishing disaggregated data?
Should we make additional data available to parties that agree to
certain terms regarding confidentiality and use of that data? What
additional data would we make available, and on what terms?
C. Adoption of Rules
58. We seek comment on the rules we should adopt to fulfill the
congressional direction to address digital discrimination of access.
Section 60506 requires us to adopt rules to facilitate equal access to
broadband, accounting for ``issues of technical and economic
feasibility,'' that include ``preventing digital discrimination of
access based on income level, race, ethnicity, color, religion, or
national origin,'' and ``identifying necessary steps for the Commission
to take to eliminate [digital] discrimination.'' To execute this
direction, we seek comment on whether we should adopt a broad
prohibition of digital discrimination of access and if so, how to
structure and enforce it; place affirmative obligations on broadband
providers; and take action in other proceedings that bear on or relate
to addressing digital discrimination. In addition, we seek comment on
various other proposals received in response to our Notice of Inquiry.
1. Broad Prohibition on Digital Discrimination of Access
59. In our Notice of Inquiry, we sought comment on whether we
should adopt rules that broadly and directly prohibit digital
discrimination of access and on what other approaches we should take to
implement the statute, such as prohibiting specifically enumerated
conduct. Some commenters in response, such as the National Digital
Inclusion Alliance, express support for a direct prohibition as a way
for the Commission to ``be comprehensive and straightforward in its
fulfillment of its Congressional obligation to prevent and eliminate
such discrimination.'' Other commenters, such as WISPA, warn that we
should be cautious in adopting rules because too broad of a prohibition
could ``discourage deployment and investment for service providers,
especially small providers,'' while rules that are too narrow ``will
not identify actual cases of digital discrimination and will not serve
the public interest.'' The National Digital Inclusion Alliance argues
that we should identify and enumerate specific prohibited conduct and
that such an approach would benefit the industry, subscribers, and the
government by making clear what is barred by our rules.
60. We seek comment on whether we should adopt a broad prohibition
on digital discrimination of access, and how to structure and enforce
such a prohibition. Would adopting a broad prohibition on digital
discrimination of access be our best course to effectuate Congress's
direction to adopt rules to ``facilitate equal access,'' including
``preventing digital discrimination of access based on income level,
race, ethnicity, color, religion, or national origin,'' and
``identifying necessary steps for the Commissions to take to eliminate
[digital] discrimination''? Would it present administrative challenges
for government or a lack of clarity for providers or consumers? Would
that lack of clarity chill investment? How could we address any
identified practical challenges? Should we accompany any broad
prohibition we adopt with specific, enumerated prohibited practices? If
so, would this take the place of a broad prohibition of digital
discrimination or be supplementary? If we were to publish a list of
prohibited practices considered examples of digital discrimination,
what practices should we include? Are the answers to these questions
different if we adopt a definition of digital discrimination based on
disparate impact or disparate treatment? If we adopt a definition of
digital discrimination of access that includes a disparate impact
standard, should we nonetheless limit our broad prohibition to
instances of disparate treatment? Would a rule prohibiting only
intentionally discriminatory policies or practices be effective in
achieving the stated goal of subsection 60506(a)? If not, why not?
Would such a rule establish a bar too high for claimants (or the
Commission) to clear, and would it be easy to evade? Is there any
context in which we should adopt a prohibition on disparate impact and
not disparate treatment? Or does disparate impact inherently include
disparate treatment?
61. We seek comment on how to address claims of digital
discrimination of access under any broad prohibitions we might adopt.
We first seek comment on the analytical framework we should use for
claims of digital discrimination of access under disparate impact and
disparate treatment prohibitions. We next seek comment on how to
effectuate enforcement of any prohibition we might adopt.
a. Analytical Framework
62. Disparate Impact Framework. We seek comment on how we should
structure our rules and procedures to implement a prohibition of
digital discrimination based on disparate impact. Courts have generally
used a three-part test to determine whether a facially neutral policy
or practice discriminates against members of protected groups under
civil rights statutes. First, the complainant must establish a prima
facie case of discrimination by proving that the challenged practice or
policy causes a disproportionate, adverse impact on a group determined
by reference to a protected characteristic. This showing creates an
inference of discrimination. Second, the burden shifts to the
respondent to establish a substantial, legitimate justification for the
challenged practice or policy. This second step is typically referred
to as the ``rebuttal'' phase. And third, where the respondent provides
a substantial, legitimate justification, the complainant can still
prevail on the claim by demonstrating the existence of an
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available, alternative practice or policy that would achieve the same
legitimate objective but with less discriminatory effect. Public
Knowledge suggests that we implement such a burden shifting approach so
that once a prima facie showing of discrimination has been made, ``the
burden would shift to the alleged violator to demonstrate that digital
discrimination has not taken place, either by rebutting the evidence,
or by providing a `substantial legitimate justification' for the
unequal access to broadband that the complainant has shown.'' We seek
comment on whether to adopt this type of framework. Is this the best
way to analyze claims of disparate impact? How burdensome is it, and
would another framework be less burdensome? Should we adopt all three
of the steps used in Federal court cases involving disparate impact, a
selection of them, or different steps? If not, what specific components
of a burden-shifting framework should we include?
63. If we adopt a burden-shifting framework similar to that used in
Federal court, what specifically should we require at each step of the
analysis? What type of evidence or data sources would we look for to
substantiate the presence of a policy or practice that
disproportionately affects an individual, group, or community that
meets one of the listed characteristics? EveryoneOn supports the
adoption of rules that, similar to those established under the Fair
Housing Act, would prohibit practices based on ``discriminatory effect,
even if not motivated by discriminatory intent,'' and suggests that
examples of such discriminatory effect could be found in ``the
assessment of unduly high fees, service interruptions, unreliable
internet service in low-income neighborhoods, and unfair barriers such
as credit checks, deposits, etc. when subscribing to or reestablishing
service.'' Should we identify these and other types of practices as
prima facie evidence of disparate impact when supported by statistical
or other reliable evidence of their disproportionate impact on
individuals or groups determined by reference to protected
characteristics? The Multicultural Media, Telecom and Internet Council
suggests that the existence of a statistical disparity connected to a
provider's policies or practices would be required to make an initial
case of disparate impact. Should we adopt that standard, or a different
one? Under a traditional burden-shifting approach, how would a provider
show that it had a substantial legitimate justification for its policy
or practice? Would proof that the challenged practice or procedure was
necessitated by genuine technical and economic feasibility concerns
provide the necessary showing to rebut the prima facie case? Are there
any substantial business justifications that we should recognize in
this context other than genuine technical and economic feasibility
concerns? Are there other ways that we might incorporate the
consideration of technical and economic feasibility into this step of
the traditional, three-step analysis? And what should we require to
establish an alternative practice that would achieve the same objective
but with less discriminatory effect? Can we look to existing precedent
to answer these questions? And do we need to establish these standards
at this point, or should we allow them to be refined on a case-by-case
basis going forward?
64. Disparate Treatment Framework. We seek comment on how we should
structure our rules to implement a prohibition of digital
discrimination of access based on disparate treatment. In general,
courts have used several analytical frameworks to evaluate claims of
intentional discrimination. The Connecticut Office of State Broadband &
Office of Consumer Counsel suggests that we use a burden shifting
system based on the McDonnell Douglas framework. Under the McDonnell
Douglas framework, a claim of discrimination proceeds through three
steps: (1) the plaintiff proves a prima facie case of discrimination by
typically showing that they are a member of a protected group, were
eligible for a service or employment opportunity, were denied or
otherwise treated in an adverse manner, and that a similarly situated
individual who is not a member of the protected group was treated
better; (2) the burden then shifts to the defendant to articulate a
legitimate, non-discriminatory reason for the challenged practice or
action; and (3) if the defendant meets the burden to provide a
legitimate, non-discriminatory reason, the burden shifts back to the
plaintiff to demonstrate that this reason is pretext for
discrimination. We seek comment on whether to adopt this framework to
analyze claims of intentional digital discrimination of access. Is this
the best way to analyze claims of intentional discrimination? Are there
certain situations in which it would work better than others? If so,
what situations and why? How burdensome is this analysis, and would
other frameworks be less burdensome? If we adopt rules incorporating
this framework, would we need to make any changes to accommodate the
specific direction of section 60506 and, if so, what changes would be
appropriate?
65. If we adopt a burden-shifting framework similar to McDonnell
Douglas, what specifically would we require at each step of the
analysis? What types of evidence should we consider sufficient to
demonstrate discriminatory intent? For example, without access to the
internal communications of a broadband provider, how would a subscriber
support a claim of intentional digital discrimination? What types of
data sources could the Commission or subscribers use to analyze
potential claims? How might a Commission data collection fit into this
process? In the context of broadband internet access service, how would
the Commission evaluate the ``fit'' between the challenged practice and
the justifications offered in support of it? Does consideration of
technical and economic feasibility fit in this step of the analysis? On
what basis might we determine that any proffered reasons are
pretextual? Can we look to existing precedent to answer these
questions? And do we need to establish these standards at this point,
or should we allow them to be refined on a case-by-case basis going
forward?
66. We seek more focused comment on how to incorporate section
60506's direction to account for ``technical and economic feasibility''
into any intentional discrimination prohibition we adopt. In the
McDonnell Douglas framework, once a prima facie case is made, the
burden shifts to the provider to demonstrate that the conduct is not
motivated by discrimination but is instead based on legitimate non-
discriminatory reasons. Does following that model adequately ``tak[e]
into account the issues of technical and economic feasibility''? Or are
there instances in the context of broadband service where intentional
discrimination is justified by technical and economic feasibility? In
particular, we seek comment on how subsection 60506(b)(1)'s inclusion
of ``income level'' as a listed characteristic fits into this
framework. For example, should a provider be permitted to defend a
claim of income-based intentional discrimination by offering
projections showing that deploying to a particular community would
likely produce a lower-than-normal rate of return on investment? How
are we to determine whether a proffered economic justification, such as
rate of return, is a pretext for income-based discrimination? Some
commenters argue that a smaller-than-normal profit margin should not be
a sufficient reason
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to claim economic infeasibility and that the Commission should rarely
excuse discrimination on such grounds. We seek comment on this view and
on the National Digital Inclusion Alliance's suggestion that we
establish a process for providers to identify a technical or economic
feasibility justification, provide relevant proof, and request a waiver
from the obligations we impose under section 60506. Would such a system
operate as a standalone waiver process in the context of any rules
preventing digital discrimination of access or function only as part of
a provider's defense to claims of digital discrimination? Would a
standalone process confer benefits that are not already available under
the Commission's general waiver authority?
67. Other Frameworks. Rather than adopt one of the frameworks
elaborated above, should we take a different approach to analyzing
claims of digital discrimination of access under a broad prohibition?
CTIA argues that a burden shifting process is a ``poor fit here''
because it would be highly burdensome on broadband internet access
service providers, and broadband coverage and service varies from
location to location. We seek comment on these arguments. Under an
alternative framework for intentional discrimination called the
Arlington Heights approach, courts look to a ``mosaic'' of factors,
that when taken together, can demonstrate discriminatory intent. These
factors might include: (i) statistics demonstrating a pattern of
discriminatory effect; (ii) historical background; (iii) the sequence
of events leading up to the decision; (iv) departures from normal
procedures or conclusions; (v) relevant legislative or administrative
history; and (vi) a consistent pattern of actions that impose a much
greater harm on minorities than non-minorities. Would this type of
framework be better suited to this context? Why or why not? Are there
other frameworks we should consider? Rather than adopting a framework
for case-by-case review, should we simply list prohibited practices?
Would that approach adequately address digital discrimination of access
or would it be too limited to adequately capture all instances of
digital discrimination of access? How could that approach evolve with
changing practices and a changing market? Alternatively, does the
inaccessibility of intent evidence require some form of burden shifting
framework?
b. Enforcement
68. If we were to adopt a broad prohibition on digital
discrimination, we seek comment on the most effective framework for
enforcing it. In the Notice of Inquiry, we sought comment on whether we
should establish an alternative complaint process, separate from our
existing informal complaint system, for violations of the rules we
adopt. We now seek comment on whether to rely on the standard FCC
enforcement model, establish a complaint system, or enable or empower
third parties to enforce the rules we adopt, and on the scope of our
authority to adopt each approach.
69. FCC Enforcement. We seek comment on whether our current FCC
enforcement capabilities are the best and most effective avenue to
accomplish congressional intent. Are there certain characteristics or
features of our various enforcement processes that would make it
difficult for us to enforce compliance with our rules implementing
section 60506? If so, how might we address those issues so as to
effectively enforce the rules we ultimately adopt? TURN encourages us
to consider using our existing enforcement toolkit of letters of
inquiry, notice of apparent liability, and forfeiture orders to enforce
our rules prohibiting digital discrimination of access. We seek comment
on these ideas and on whether these tools are appropriate and
sufficient for enforcing claims of digital discrimination of access.
Should we rely principally or exclusively on FCC staff-initiated
investigations to enforce our rules, with the possibility of monetary
forfeitures or other penalties for offending conduct? Would such an
approach unduly constrain enforcement of the rules by channeling most,
if not all, of the enforcement activity through our investigations
staff? Are there better, more effective ways for us to enforce our
rules in this context? If we adopt a burden-shifting analysis for
enforcement of any prohibition we adopt, is the Commission's
traditional investigative process sufficiently flexible to accommodate
such a framework? Or would we need to modify or adopt new processes to
enable a burden-shifting analysis?
70. We seek comment on the punishments or remedies the Commission
could impose and award as part of our enforcement of rules prohibiting
digital discrimination of access. Are monetary forfeitures the
appropriate punishment in proven cases of digital discrimination of
access? What other punishments or remedies might be appropriate? The
Leadership Conference on Civil and Human Rights urges us to create
rules that will enable us to effectively collect any financial
penalties we impose. We seek comment on what rules we might adopt to
ensure our ability to collect any monetary forfeitures we might impose
upon determining that a respondent has engaged in digital
discrimination of access. Many of our staff-initiated investigations of
alleged violations of the Communications Act or our rules are resolved
through consent decrees. The Leadership Conference on Civil and Human
Rights argues that, for consent decrees to be effective in the context
of digital discrimination of access, we need to have sufficient
``capacity to monitor and ensure that any consent decrees are fully
complied with.'' We seek comment on what changes, if any, we should
make to our consent decree process to ensure it is an effective remedy
in this context. Are there options other than fines and consent decrees
that we should consider as possible remedies?
71. We seek comment on our authority to address violations of any
rules prohibiting digital discrimination of access we adopt through
Commission enforcement. Are there limitations on our ability to enforce
violations of such rules or act upon complaints of digital
discrimination of access? (The Communications Act general enforcement
and penal authority are provided for in section 401 and Title V of the
Communications Act.) The Commission routinely uses section 503
authority under the Communications Act to impose monetary forfeitures
against those who, among other things, ``willfully or repeatedly''
violate ``any rule, regulation, or order issued by the Commission.''
Violations of Commission rules can also be enforced under sections 501,
502, and 401 of the Communications Act. AT&T argues that the
Communications Act's Subchapter V enforcement remedies may not be
available to the Commission because section 60506 was not enacted ``as
part of the Communications Act even though [Congress] explicitly [took]
that step with other Infrastructure Act provisions.'' We seek comment
on this argument and on whether we lack authority to enforce rules
adopted consistent with congressional direction in section 60506. Does
the inclusion of subsection 60506(e), which requires us to revise our
``public complaint process to accept complaints from consumers or other
members of the public that relate to digital discrimination,'' evidence
Congress's intent that the Commission act on digital discrimination
complaints and enforce rules prohibiting digital discrimination of
access? Does the inclusion of subsection 60506(b), which directs us to
adopt rules to ``facilitate
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equal access'' including addressing digital discrimination of access,
evidence the same? Do we have either direct or ancillary authority
under section 4(i) of the Communications Act to enforce rules
prohibiting digital discrimination of access as necessary to discharge
our statutory mandate of ``preventing'' digital discrimination of
access? Could we enforce these rules in other ways, such as by barring
offending providers from participating in funding programs or finding
that violations of our digital discrimination rules raise character
qualification issues? Should we expand our character policy statement
to include violations of our rules barring digital discrimination of
access? If so, how? Should it apply only to a pattern of
discrimination?
72. Structured Complaint Process. We next seek comment on whether
we should establish a structured process for adjudicating formal
complaints alleging violations of any rules we adopt in this
proceeding. Under our informal consumer process, discussed above, there
is no filing fee and any complaints would aid the Commission in
identifying potential areas for investigation. A structured complaint
process, in contrast, would include a more defined dispute mechanism
that results in a Commission determination on the issue, such as
currently exists under our rules promulgated pursuant to section 208 of
the Communications Act. WISPA argues that there is no need for the
Commission to create an alternative complaint process because our
informal consumer complaint process is sufficient, and other commenters
argue that a complaint process requiring provider response and formal
Commission adjudication may be overly burdensome. We seek comment on
whether we should adopt a structured complaint process to provide
parties with the flexibility to choose between two systems. Would our
structured complaint process be accessible to and effective for
complainants, or would the resource imbalance between consumers and
providers render the process ineffective at resolving complaints of
digital discrimination? Are there steps we could take to ensure that
our structured complaint process is accessible and effective? And would
a structured complaint system be unduly burdensome to the Commission,
providers, or complainants? Does that burden outweigh any benefits that
might be offered by such a formal complaint process? Would our decision
to adopt a particular definition of digital discrimination of access,
or to adopt a particular analytical framework for claims of digital
discrimination of access, have any bearing on what types of complaint
processes we should create?
73. If the Commission were to adopt a structured complaint process
for claims of digital discrimination of access, we seek comment on the
design of this process and remedies it could provide. Should we model
our complaint process on the existing complaint process established
pursuant to section 208 of the Communications Act? Under section 208,
complainants can file using an informal or formal process. Under the
informal process, the complainant submits a statement in writing
identifying the carrier against which the complaint is made, a complete
statement of facts and the relief sought. No fee is required and the
Commission will transmit the complaint to the carrier for investigation
with a prescribed response time. In contrast, the formal complaint
process requires a fee and is similar to civil litigation in that it
involves a complaint, answer, reply, and often discovery, motions and
briefs. Formal complaints require the complainant to include in the
complaint specific facts and evidence supporting all claims in the
complaint. What aspects of these section 208 complaint processes should
we incorporate into any new process we might establish? As Leadership
Conference on Civil and Human Rights advocates, would the three-part
burden shifting process courts use to examine complaints brought under
section 202 be instructive? If we were to adopt a similar framework,
what modifications, if any, would we make to best apply it to the
context of this proceeding? Should we maintain a separate informal and
formal process for digital discrimination of access complaints or
should we consolidate and just have one complaint process? If we just
have one, what aspects would we retain from each process? Would it be
appropriate to permit fact discovery in such a process? If so, how
could that process be tailored to avoid undue burdens while providing
relevant information? We also seek comment on whether a dispute
assistance process modeled after Sec. 14.32 of the Commission's rules
would be useful in the context of resolving claims of digital
discrimination of access. Under this system, a consumer or other party
can submit to the Commission a claim that a manufacturer or service
provider is acting in violation of certain sections of the
Communications Act and Commission rules, the Commission forwards the
request for dispute assistance to the specified provider/manufacturer
and assists the claimant and provider/manufacturer in reaching a
settlement. If after thirty days a settlement has not been reached, the
claimant can file an informal complaint with the Commission. Would a
similar system aid in the timely and effective resolution of digital
discrimination claims?
74. We further seek comment on whether we should borrow aspects of
the Equal Employment Opportunity Commission's (EEOC) complaint
adjudication model. For example, similar to EEOC processes, should we
authorize an expert within the Commission to review and investigate
complaints and vest such expert with the authority to dismiss the
complaint or issue a ``non-binding probable cause determination
letter''? Would this, as the Multicultural Media, Telecom and internet
Council argues, encourage settlement, prevent the Commission from being
overwhelmed with complaints, and still ensure that individuals have
access to the legal system if necessary? As with the EEOC's process,
should we also include a voluntary alternative dispute resolution
option such as mediation? How could we design any complaint process to
ensure it is not abused, promotes transparency, and mitigates any
privacy concerns? What remedies could the Commission offer to consumers
that successfully prove a claim of digital discrimination of access?
Would a financial penalty be a meaningful remedy in most such cases? Or
would we need to direct the provider or target of the complaint to take
certain action? Are there other models of enforcement employed in
similar regulatory regimes by other Federal agencies that would be
appropriate for consideration here?
75. We seek comment on any limits to our authority to adopt a
structured complaint process for claims of digital discrimination of
access. Do we have authority under section 208 of the Communications
Act to accept and investigate claims of violations of rules prohibiting
digital discrimination of access? If not, do we have authority to
create a new formal complaint process under section 60506, whether
under subsection 60506(e)'s direction to revise our complaint process
or some other provision? If not, on what basis do we ``ha[ve] the power
to review and act upon'' complaints sua sponte, as Public Knowledge
argues? Are there other sources of authority we could rely on to create
a structured complaint process? Does the scope of our authority to
adopt a structured complaint process depend in any way on whether we
define
[[Page 3697]]
discrimination as based on disparate impact or disparate treatment? If
we have authority to create a complaint process, are there nonetheless
limits on our authority to offer complainants certain types of relief,
or any relief at all?
76. State and Local Enforcement. We also seek comment on what
processes our rules could include for two suggestions put forth in the
record: enforcement by state and local officials, and by private right
of action. In what ways might we incorporate state and local officials
into our enforcement approach for claims of digital discrimination of
access, and what roles might we play in state and local enforcement
schemes? Should we encourage states and localities to adopt and enforce
independently rules that are substantively similar to those we adopt in
this proceeding? What other models of coordination with state and local
officials might we look to when considering the enforcement of our
rules? Do we have authority to create rights that private parties could
enforce or prosecute before state and local governmental bodies or in
the courts? On what basis, and before which entities would we do so?
Should we interpret section 60506 as solely directing the Commission to
update its administrative complaint process and not providing separate
authority to create a private right of action?
77. Other Enforcement Processes. Are there any other enforcement
processes, beyond the three categories identified above, that we should
consider creating or adopting? What would those processes be, and why
would they be better suited to enforcing our rules than the processes
discussed above?
2. Affirmative Obligations
78. We next seek comment on what affirmative obligations we could
place on providers to address digital discrimination of access. In the
Notice of Inquiry, we sought comment on whether the Commission should
``adopt rules to require, encourage, or otherwise incentivize'' covered
entities to ``take affirmative steps to prevent digital
discrimination.'' In response, commenters offer various proposals about
steps providers could affirmatively take to address digital
discrimination of access, including having providers voluntarily devise
and adopt plans to address digital equity, mirroring rules from other
agencies, and providing consumers information that could highlight
potential discrimination. We seek comment on these proposals.
79. First, we seek comment on Microsoft's proposal for providers to
use Commission data to formulate plans to address digital
discrimination of access. Microsoft observes that providers, using the
new Broadband Data Collection tool, could ``gather demographic and
usage information from . . . surveys they would conduct of their
subscribers,'' which could then be filed with the Commission. Microsoft
asserts that this demographic data could also be used by providers, on
a voluntary basis, to ``create a plan to enhance digital equity in
their operations,'' which would act as ``an early step'' in identifying
issues involving digital discrimination. Microsoft argues that the
Commission should require submission of such plans before enacting any
other rules of its own, as it asserts that both the Commission and
industry lack sufficient data on issues regarding digital
discrimination. Would this proposal meaningfully address digital
discrimination, and should we adopt it? What would such plans look
like? Should, as Microsoft argues, the Commission allow providers to
adopt such plans on a voluntary basis and have them treated as
confidential by the Commission? Although Microsoft argues we should
adopt this proposal before adopting rules addressing digital
discrimination of access, would this approach nonetheless be a useful
complement to other rules we consider in this Notice? If we adopt a
broad prohibition on digital discrimination of access, how would this
type of transparency regime relate to that prohibition? Would certain
practices be expected or required in the filings; and would
participation be chilled if providers are concerned that certain
practices could evidence noncompliance with our rules?
80. We next seek comment on Leadership Conference on Civil and
Human Rights' proposal that the Commission adopt rules mirroring a
provision of the Fair Housing Act that requires Department of Housing
and Urban Development (HUD) grantees to affirmatively further fair
housing. Under this provision, HUD grantees, as recipients of HUD
funding, must not only abide by HUD rules on fair housing, but also
generally promote equity in housing, although HUD ``does not require
any specific form of planning or submission of fair housing plans to
HUD.'' The Leadership Conference on Civil and Human Rights argues that
the Commission could require providers to do the same with respect to
combating digital discrimination, with implementation modeled after
HUD's approach. What should rules modeled after HUD's entail in this
context? Would it necessitate that covered entities take any specific
steps to combat or monitor for instances of digital discrimination of
access? Should the Commission impose such an obligation, a variation
thereof, or other general requirement? What would such a rule look
like, and what would it accomplish in this context?
81. We seek comment on record proposals that we require providers
to give information to their subscribers on relevant requirements and
resources related to the Infrastructure Act, this proceeding, and
digital discrimination of access more generally. For example, TURN
proposes that information about programs that subsidize the cost of
broadband should be disseminated to consumers by providers. TURN also
proposes that providers distribute public safety information regarding
``outages, the need for backup power, [and] emergency phone numbers,''
particularly in low-income areas and those subject to natural
disasters. Additionally, TURN and other commenters contend that
providers should offer information about how to seek redress if a
consumer believes that they have experienced digital discrimination of
access. Should we adopt any of these proposals, or do so with any
adjustments? How should we require that any such information be
distributed, both in terms of frequency and format? (For example, TURN
argues that disclosure of available channels for redress in the event
of digital discrimination should be made with the same ``frequency that
privacy notices are provided and available in various mediums,
including, but not limited to, websites, billing inserts, and
emails.'') Are there other kinds of information not specified in TURN's
comments that covered entities should be required to disseminate? For
example, should we require providers to make available information
about their service that would promote the ability of consumers to
identify when they may be experiencing digital discrimination? What
information should we require providers to make available in this
respect, and how would we design such a requirement to ensure that
consumers can understand the information provided? TechFreedom suggests
that proposals requiring dissemination of additional information would
increase the price of broadband for consumers by increasing costs to
providers. What would the costs be to providers, would they have the
effect claimed by TechFreedom, and how do any costs
[[Page 3698]]
measure up against the potential benefits of additional disclosures?
82. What other affirmative steps should we consider requiring
(whether of providers or others) in order to more effectively combat
digital discrimination of access? Are there other types of self-
assessment or reporting obligations the Commission should impose? For
example, should we require providers to audit whether they may be
engaging in practices that could have a disparate impact on groups
determined by reference to protected characteristics? How should such
audits be conducted and using what standards? Should the Commission
require that covered entities report the results of such audits, and if
so, how frequently should they be conducted and reported? Should the
results of such audits be made public? Are there any other transparency
or disclosure requirements we should impose? Should we require
providers to disclose or explain to consumers why offerings (whether in
terms of price, speed, or other aspects) differ as between two given
geographic areas? Should we adopt rules modeled on cable franchising
rules to promote the build-out of broadband infrastructure? Should we
require that providers offer consumers written materials in multiple
languages? Are there other rules, whether from other agencies, state
and local governments, or other entities, that we should look to?
Should we consider different auditing and/or reporting requirements for
different types of entities?
3. Other Proceedings
83. We seek further detailed comment on what actions we should take
in other policy areas identified in the record to address digital
discrimination of access. In response to the Notice of Inquiry,
commenters identified a variety of proceedings in which we could take
action to address digital discrimination.
84. We first seek comment on actions we could take to promote
infrastructure deployment in furtherance of our goal to address digital
discrimination. Commenters identify topics including addressing state
and local laws that may impact infrastructure deployment, spectrum
policy, and municipal broadband as areas for further Commission action
to address digital discrimination. We seek comment on what specific
action we should take in these proceedings to address digital
discrimination, and how that action furthers the goals identified by
Congress in section 60506. We seek further comment on the record's
focus on issues regarding broadband service in multiple tenant
environments (MTEs) such as apartment buildings and offices. Commenters
cite issues such as conflicts over access to inside wiring;
insufficient infrastructure for high-speed broadband; lack of economic
incentives for providers in low-income communities; and exclusive
rooftop access agreements as areas in which the Commission could act to
address digital discrimination of access. Should we address some or all
of these issues in the MTEs proceeding to combat digital discrimination
of access? How specifically would these actions do so?
85. We also seek comment on the record discussion about whether and
how the Commission can use its funding programs to combat digital
discrimination of access. What programs should the Commission consider
using in undertaking this effort? What programs relate to digital
discrimination of access and how? What kinds of modifications, if any,
would need to these programs? Are there any statutory barriers to using
these programs to combat digital discrimination of access? Further, we
seek comment on record arguments that inclusion of section 60506 in
Division F of the Infrastructure Act signals that the Commission should
focus on providing funding in its efforts to prevent digital
discrimination. AT&T argues, for example, that the Infrastructure Act
primarily concerns spending and that section 60506's directive to
facilitate equal access, read in this context, primarily represents a
funding commitment. Is this interpretation correct? Or should we
understand section 60506 to direct us to take separate and
complementary action from that elaborated elsewhere in the
Infrastructure Act? Does the inclusion of section 60506 counsel us to
tie our funding efforts to preventing and eliminating digital
discrimination? Should our existing funding programs be revised in any
way to ensure they do not perpetuate existing inequities? Should
receipt of funds be contingent on compliance with anti-discrimination
requirements? Should the Commission coordinate with other agencies to
ensure such requirements apply to other Federal funding programs,
including the National Telecommunications and Information
Administration's (NTIA) Broadband Equity, Access, and Deployment (BEAD)
Program? What is the relationship, if any, between section 60506(c) and
the BEAD Program and other Federal broadband deployment funding
efforts?
4. Other Record Proposals
86. We seek comment on other record proposals for action we should
take to fulfill congressional direction to address digital
discrimination of access beyond the proposals discussed above. In
response to the Notice of Inquiry, commenters suggest various other
proposals such as assisting those on Tribal lands, undertaking outreach
efforts to promote awareness of any digital discrimination rules we
adopt, and making organizational changes to the Commission. We seek
further comment on these proposals and any additional steps we should
take to eliminate digital discrimination of access.
87. Tribal Lands. We seek comment on any actions we can take to
address digital discrimination of access on Tribal lands. In response
to the Notice of Inquiry, one commenter argues that we should take
dedicated action to facilitate equal access on Tribal lands, including
by ``offer[ing] technical assistance to Tribal Nations planning their
own networks . . . creat[ing] a resource to connect Tribes and
infrastructure partners . . . [and] connect[ing] infrastructure
partners interest in working with Tribal Nations with training'' on
issues unique to deploying infrastructure on Tribal lands. We seek
comment on these record proposals and whether to adopt them, following
engagement with Tribal partners. In what specific ways do those living
on Tribal lands uniquely experience digital discrimination of access?
Is dedicated action necessary to address those issues, or can they be
addressed by more general rules addressing digital discrimination of
access? Would some or all of these record proposals effectively address
any unique digital discrimination of access faced by those living on
Tribal lands, and would they do so more effectively with any
modifications? Are there other proposals we should consider?
88. Outreach. We next seek comment on addressing digital
discrimination of access through outreach efforts. Numerous commenters
in the record express support for educational efforts to promote
digital literacy, including developing a digital literacy program to
raise awareness of the benefits and availability of broadband and using
available FCC data to help NTIA direct funds for digital literacy to
communities most in need, arguing that these efforts can address a lack
of adoption in areas where providers have already deployed broadband.
Another commenter advocates that the Commission create an outreach
program to educate consumers on any rules we adopt addressing digital
discrimination of access and the avenues of relief available to them.
We seek comment on these proposals in particular and whether dedicated
[[Page 3699]]
outreach efforts to promote digital literacy and awareness of our rules
would further prevention or elimination of digital discrimination of
access. Would digital education efforts be effective to promote
adoption? If so, what specific digital education efforts should we
pursue, and should we pursue the suggestions in the record? What issues
would be most useful to educate consumers about? Are there entities or
organizations we should collaborate with if we undertake digital
education efforts? What steps would most effectively promote awareness
of any digital discrimination rules we adopt? Should we take steps
beyond those our Consumer and Governmental Affairs Bureau routinely
takes to advise consumers about Commission rules and public-facing
processes? If so, what steps should we take?
89. Commission Organization. We seek comment on any organizational
changes we should make to the Commission to promote our efforts to
address digital discrimination of access and assist in enforcement of
any rules we adopt. Commenters to the Notice of Inquiry offer that we
should hire staff with experience in discrimination law and argue that
we should establish a dedicated ombudsperson role and Office of Civil
Rights as part of our process for addressing claims of digital
discrimination of access. Should we pursue these organizational
changes? What would be the benefits of establishing an ombudsperson for
digital discrimination, and what specific responsibilities would they
have? Should an ombudsperson publish an annual report? Would an
independent, impartial, and confidential ombudsperson be useful for
consumers and entities subject to our rules in navigating any rules and
complaint processes we adopt? Would it be useful to house an
ombudsperson, and any Commission staff with expertise on discrimination
issues, in an Office of Civil Rights? Would establishing a new
organizational unit be preferable to distributing this expertise among
the Commission's current Bureaus and Offices? If we did establish an
Office of Civil Rights, what issues would such an office oversee, what
would be the scope of its authority and responsibilities, and how would
it relate to existing Commission organizational units such as the
Office of Native Affairs and Policy?
90. Other Necessary Steps. We seek comment on any other steps we
should take to eliminate digital discrimination of access. Section
60506 directs us to ``identify[ ] necessary steps for the Commission[ ]
to take to eliminate'' digital discrimination of access. What steps,
beyond adopting and enforcing rules to ``prevent'' digital
discrimination of access, are necessary for the Commission to take to
``eliminate'' such discrimination? And how would any such steps
specifically ``eliminate'' digital discrimination of access rather than
``prevent'' it?
5. Legal Authority
91. We seek comment on the scope of our authority to adopt rules
under section 60506 of the Infrastructure Act. Do the novel structure
and language of section 60506 provide the Commission with broad
rulemaking authority? Paragraph (b) of section 60506 gives us the broad
direction to ``adopt final rules to facilitate equal access to
broadband . . . including'' addressing digital discrimination of
access. Since this grant ``include[s]'' adopting rules to address
digital discrimination of access, can the Commission adopt rules to
facilitate equal access that address issues other than, but related to,
digital discrimination of access? If so, what issues do commenters
believe we have the authority to address under section 60506 of the
Infrastructure Act? We also observe that while anti-discrimination laws
often revolve around a prohibition of a policy or practice, Congress in
this instance gave us the broad direction and the authority to develop
our own rules to ``facilitate equal access,'' of which addressing
digital discrimination of access is a part. Does this structure signify
a broad grant of authority to combat digital discrimination of access
as part of efforts to ``facilitate equal access to broadband''? Is that
authority broader, or narrower, than that given to other Federal
agencies tasked with administering and enforcing statutory prohibitions
on discrimination? We seek comment on the scope of the Commission's
rulemaking authority in light of the structure and language of section
60506 of the Infrastructure Act.
92. We seek further comment on our authority under paragraphs
(b)(1) and (b)(2) of section 60506. In the Notice of Inquiry, the
Commission sought comment on whether ``preventing digital
discrimination'' in paragraph (b)(1) and ``eliminat[ing]
discrimination'' in paragraph (b)(2) provided the Commission with
distinct authority to enact digital discrimination rules. Commenters
agree that ``prevent'' and ``eliminate'' offer different authority, and
that ``prevent'' confers upon the Commission the authority to stop
digital discrimination before it occurs. Regarding ``eliminate,'' some
commenters argue that the term allows the Commission to remove
discrimination that already exists and the impact thereof. Other
commenters argue that ``eliminate'' does not provide the Commission
with the authority to impose ``retroactive liability'' for past
deployment decisions. We seek further comment on the authority offered
by each of these terms. Does the word ``prevent'' give us broad
discretion to adopt prophylactic measures to stop digital
discrimination of access from occurring going forward? What are the
bounds of that authority? How does that authority differ from a more
standard prohibition on discriminatory conduct or outcomes? What does
the word ``eliminate'' offer? Does it give us discretion to address
digital discrimination of access that already exists? Is there a
distinction between addressing currently existing digital
discrimination of access and imposing ``retroactive liability''? Does
the statutory language that we should ``identify[ ] necessary steps . .
. to eliminate [digital] discrimination'' in any way guide how we
understand this direction? Did Congress intend for us to merely
identify steps, and not take them? Since this term is used in the
context of our greater direction to ``facilitate equal access,'' do we
nonetheless have discretion to address current-existent digital
discrimination of access as part of that effort? In considering our
authority under section 60506, should we understand it as a ``civil
rights'' statute or a ``universal service'' statute, and what is the
significance of either interpretation?
D. State and Local Model Policies and Best Practices
93. We propose to adopt, as guidelines for states and localities,
the best practices to prevent digital discrimination and promote
digital equity recommended by the Communications Equity and Diversity
Council (CEDC). Subsection 60506(d) of the Infrastructure Act directed
the Commission to ``develop model policies and best practices that can
be adopted by states and localities to ensure that broadband internet
access service providers do not engage in digital discrimination.'' To
help fulfill this direction, Chairwoman Rosenworcel directed the CEDC
to issue recommendations on this subject. The Digital Equity and
Inclusion (DEI) Working Group issued a report recommending both (1)
model policies and best practices to prevent digital discrimination by
broadband providers, and (2) best practices to advance digital equity
for states and localities. On November 7, 2022, the members of the full
CEDC voted unanimously in favor
[[Page 3700]]
of finalizing the report for the Commission. We now propose to adopt
both sets of recommendations as guidelines for states and localities,
in fulfillment of subsection 60506(d), acknowledging that this does not
limit states and localities from taking additional steps to prevent and
eliminate digital discrimination of access, and seek comment on this
proposal.
94. First, we seek comment on our proposal to adopt the report's
``Model Policies and Best Practices to Prevent Digital Discrimination
by ISPs.'' The report outlines six model policies and best practices
for states and localities: (1) developing and making available
recurring ``broadband equity assessments''; (2) facilitating awareness
among landlords regarding ``tenant choice and competition'' in MTEs;
(3) identifying ways to ``incentivize equitable deployment''; (4)
managing public property (such as rights-of-way) ``to avert
discriminatory behaviors that result in or sustain digital
discrimination and redlining''; (5) convening regular meetings of
stakeholders to evaluate ``areas and households unserved and
underserved with competitive and quality broadband options''; and (6)
encouraging ``fair competition and choice.'' These model policies and
best practices reflect the perspective of the industry, public interest
stakeholders, local government representatives, and others, and we
tentatively conclude that adopting these consensus recommendations will
be effective in addressing digital discrimination of access at the
state and local level. We seek comment on whether to adopt these best
practices. Do they provide states and localities with the tools and
resources necessary to provide equal access to broadband service in
their communities? And do they appropriately cover the scope of issues
these model policies and best practices should address? Should any be
removed, or should we consider adding any additional model policies and
best practices? We seek comment on whether the best practices, as
recommended in the report, can be improved and how. We also seek
comment on any additional support the Commission can provide to states,
localities, and internet service providers to effectuate these
recommendations.
95. Second, we seek comment on our proposal to adopt the report's
``Best Practices to Advance Digital Equity for State and Localities.''
The report outlines thirteen model policies and best practices for
states and localities, which, in sum, recommend: (1) raising awareness
about and streamlining the application process for government benefit
programs such as the Affordable Connectivity Program; (2) promoting
digital literacy; and (3) increasing access to devices and spaces to
access the internet. The best practices to advance digital equity for
state and localities reflect the consensus of industry and public
interest stakeholders, and we believe that they can serve as an
effective framework for states and localities to advance digital
equity. We seek comment on whether to adopt these best practices as
guidelines for states and localities. Do they equip states and
localities with the tools and resources necessary to advance digital
equity? And do they appropriately cover the scope of issues these model
best practices should address? Should any be removed, or should we
consider adding any additional best practices? We seek comment on
whether the best practices, as recommended in the report, can be
improved, and how.
E. Other Efforts To Promote Digital Equity and Inclusion
96. The Commission, as part of its continuing effort to advance
digital equity for all, including people of color, persons with
disabilities, persons who live in rural or Tribal areas, and others who
are or have been historically underserved, marginalized, or adversely
affected by persistent poverty or inequality, invites comment on any
equity-related considerations and benefits (if any) that may be
associated with the proposals and issues discussed herein. (Section 1
of the Communications Act of 1934 as amended provides that the FCC
``regulat[es] interstate and foreign commerce in communication by wire
and radio so as to make [such service] available, so far as possible,
to all the people of the United States, without discrimination on the
basis of race, color, religion, national origin, or sex.'') (The term
``equity'' is used here consistent with Executive Order 13985 as the
consistent and systematic fair, just, and impartial treatment of all
individuals, including individuals who belong to underserved
communities that have been denied such treatment, such as Black,
Latino, and Indigenous and Native American persons, Asian Americans and
Pacific Islanders, and other persons of color; members of religious
minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+)
persons; persons with disabilities; persons who live in rural areas;
and persons otherwise adversely affected by persistent poverty or
inequality.) Specifically, we seek comment on how our proposals may
promote or inhibit advances in diversity, equity, inclusion, and
accessibility, as well the scope of the Commission's relevant legal
authority.
IV. Initial Regulatory Flexibility Analysis
97. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on small entities by the policies and rules proposed in the Notice of
Proposed Rulemaking (NPRM). The Commission requests written public
comments on this IRFA. Comments must be identified as responses to the
IRFA and must be filed by the deadlines for comments provided on the
first page of the NPRM. The Commission will send a copy of the Notice,
including this IRFA, to the Chief Counsel for Advocacy of the Small
Business Administration (SBA). In addition, the NPRM and IRFA (or
summaries thereof) will be published in the Federal Register.
A. Need for and Objectives of the Proposed Rules
98. The NPRM furthers the Commission's efforts to promote equal
access to broadband to all people living in the Nation. Specifically,
the NPRM seeks focused comment on the rules the Commission should adopt
to fulfill the congressional direction in section 60506 of the
Infrastructure Act to facilitate equal access to broadband, prevent
digital discrimination of access, and identify steps necessary to
eliminate such discrimination. The NPRM also proposes and seeks comment
on possible definitions of ``digital discrimination of access'' as used
in the Infrastructure Act. The NPRM next proposes to revise the
Commission's public complaint process to accept complaints related to
digital discrimination. The NPRM also proposes to adopt the model
policies and best practices for states and localities regarding digital
discrimination that have been recommended by the Communications Equity
and Diversity Council.
B. Legal Basis
99. The NPRM proposes to identify authority under section 60506 of
the Infrastructure Act and seeks comment on the bounds of the
Commission's authority to enact the proposed rules.
[[Page 3701]]
C. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
100. The RFA directs agencies to provide a description of and,
where feasible, an estimate of the number of small entities that may be
affected by the proposed rules and by the rule revisions on which the
NPRM seeks comment, if adopted. The RFA generally defines the term
``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small-business concern'' under the Small Business
Act. A ``small-business concern'' is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.
101. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. We therefore describe, at the
outset, three broad groups of small entities that could be directly
affected herein. First, while there are industry specific size
standards for small businesses that are used in the regulatory
flexibility analysis, according to data from the Small Business
Administration's (SBA) Office of Advocacy, in general a small business
is an independent business having fewer than 500 employees. These types
of small businesses represent 99.9% of all businesses in the United
States, which translates to 32.5 million businesses.
102. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000
or less to delineate its annual electronic filing requirements for
small exempt organizations. (The IRS benchmark is similar to the
population of less than 50,000 benchmark in 5 U.S.C. 601(5) that is
used to define a small governmental jurisdiction. Therefore, the IRS
benchmark has been used to estimate the number small organizations in
this small entity description. We note that the IRS data does not
provide information on whether a small exempt organization is
independently owned and operated or dominant in its field.) Nationwide,
for tax year 2020, there were approximately 447,689 small exempt
organizations in the U.S. reporting revenues of $50,000 or less
according to the registration and tax data for exempt organizations
available from the IRS.
103. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' U.S. Census
Bureau data from the 2017 Census of Governments indicate there were
90,075 local governmental jurisdictions consisting of general purpose
governments and special purpose governments in the United States. Of
this number, there were 36,931 general purpose governments (county,
municipal, and town or township) with populations of less than 50,000
and 12,040 special purpose governments--independent school districts
with enrollment populations of less than 50,000. (While the special
purpose governments category also includes local special district
governments, the 2017 Census of Governments data does not provide data
aggregated based on population size for the special purpose governments
category. Therefore, only data from independent school districts is
included in the special purpose governments category.) Accordingly,
based on the 2017 U.S. Census of Governments data, we estimate that at
least 48,971 entities fall into the category of ``small governmental
jurisdictions.'' (This total is derived from the sum of the number of
general purpose governments (county, municipal and town or township)
with populations of less than 50,000 (36,931) and the number of special
purpose governments--independent school districts with enrollment
populations of less than 50,000 (12,040), from the 2017 Census of
Governments--Organizations tbls.5, 6 & 10.)
1. Wireline Carriers
104. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired communications networks. Transmission
facilities may be based on a single technology or a combination of
technologies. Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a
variety of services, such as wired telephony services, including voice
over internet protocol (VoIP) services, wired (cable) audio and video
programming distribution, and wired broadband internet services. By
exception, establishments providing satellite television distribution
services using facilities and infrastructure that they operate are
included in this industry. Wired Telecommunications Carriers are also
referred to as wireline carriers or fixed local service providers.
(Fixed Local Service Providers include the following types of
providers: Incumbent Local Exchange Carriers (ILECs), Competitive
Access Providers (CAPs) and Competitive Local Exchange Carriers
(CLECs), Cable/Coax CLECs, Interconnected VOIP Providers, Non-
Interconnected VOIP Providers, Shared-Tenant Service Providers, Audio
Bridge Service Providers, and Other Local Service Providers. Local
Resellers fall into another U.S. Census Bureau industry group and
therefore data for these providers is not included in this industry.)
105. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees. (The
available U.S. Census Bureau data does not provide a more precise
estimate of the number of firms that meet the SBA size standard.)
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 5,183 providers
that reported they were engaged in the provision of fixed local
services. Of these providers, the Commission estimates that 4,737
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
106. Local Exchange Carriers (LECs). Neither the Commission nor the
SBA has developed a size standard for small businesses specifically
applicable to local exchange services. Providers of these services
include both incumbent and competitive local exchange service
providers. Wired Telecommunications Carriers is the closest industry
with an SBA small business size standard. Wired Telecommunications
Carriers are also referred to as wireline carriers or fixed local
service providers. (Fixed Local Exchange Service Providers include the
following types of providers: Incumbent Local Exchange Carriers
(ILECs), Competitive Access Providers (CAPs) and Competitive Local
Exchange Carriers (CLECs), Cable/Coax CLECs, Interconnected VOIP
Providers,
[[Page 3702]]
Non-Interconnected VOIP Providers, Shared-Tenant Service Providers,
Audio Bridge Service Providers, Local Resellers, and Other Local
Service Providers.) The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 5,183 providers
that reported they were fixed local exchange service providers. Of
these providers, the Commission estimates that 4,737 providers have
1,500 or fewer employees. Consequently, using the SBA's small business
size standard, most of these providers can be considered small
entities.
107. Competitive Local Exchange Carriers (LECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to local exchange services.
Providers of these services include several types of competitive local
exchange service providers. (Competitive Local Exchange Service
Providers include the following types of providers: Competitive Access
Providers (CAPs) and Competitive Local Exchange Carriers (CLECs),
Cable/Coax CLECs, Interconnected VOIP Providers, Non-Interconnected
VOIP Providers, Shared-Tenant Service Providers, Audio Bridge Service
Providers, Local Resellers, and Other Local Service Providers.) Wired
Telecommunications Carriers is the closest industry with a SBA small
business size standard. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 3,956 providers
that reported they were competitive local exchange service providers.
Of these providers, the Commission estimates that 3,808 providers have
1,500 or fewer employees. Consequently, using the SBA's small business
size standard, most of these providers can be considered small
entities.
108. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA have developed a small business size standard specifically for
Interexchange Carriers. Wired Telecommunications Carriers is the
closest industry with a SBA small business size standard. The SBA small
business size standard for Wired Telecommunications Carriers classifies
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms that operated in this
industry for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. Additionally, based on Commission data in the
2021 Universal Service Monitoring Report, as of December 31, 2020,
there were 151 providers that reported they were engaged in the
provision of interexchange services. Of these providers, the Commission
estimates that 131 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, the
Commission estimates that the majority of providers in this industry
can be considered small entities.
109. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, contains a size standard for a
``small cable operator,'' which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than one percent of
all subscribers in the United States and is not affiliated with any
entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' For purposes of the Telecom Act Standard, the
Commission determined that a cable system operator that serves fewer
than 677,000 subscribers, either directly or through affiliates, will
meet the definition of a small cable operator based on the cable
subscriber count established in a 2001 Public Notice. Based on industry
data, only six cable system operators have more than 677,000
subscribers. Accordingly, the Commission estimates that the majority of
cable system operators are small under this size standard. We note
however, that the Commission neither requests nor collects information
on whether cable system operators are affiliated with entities whose
gross annual revenues exceed $250 million. (The Commission does receive
such information on a case-by-case basis if a cable operator appeals a
local franchise authority's finding that the operator does not qualify
as a small cable operator pursuant to Sec. 76.901(e) of the
Commission's rules. See 47 CFR 76.910(b).) Therefore, we are unable at
this time to estimate with greater precision the number of cable system
operators that would qualify as small cable operators under the
definition in the Communications Act.
110. Other Toll Carriers. Neither the Commission nor the SBA has
developed a definition for small businesses specifically applicable to
Other Toll Carriers. This category includes toll carriers that do not
fall within the categories of interexchange carriers, operator service
providers, prepaid calling card providers, satellite service carriers,
or toll resellers. Wired Telecommunications Carriers. is the closest
industry with a SBA small business size standard. The SBA small
business size standard for Wired Telecommunications Carriers classifies
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms in this industry that
operated for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. Additionally, based on Commission data in the
2021 Universal Service Monitoring Report, as of December 31, 2020,
there were 115 providers that reported they were engaged in the
provision of other toll services. Of these providers, the Commission
estimates that 113 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
2. Wireless Carriers
111. Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, such as cellular services, paging
services, wireless internet access, and wireless video services. The
SBA size standard for this industry classifies a business as small if
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 2,893 firms in this industry that operated for the
entire year. Of that number, 2,837 firms employed fewer than 250
employees. Additionally, based on Commission data in the 2021 Universal
Service Monitoring Report, as of December 31, 2020, there were 797
providers that reported they were engaged in the provision of wireless
services. Of these providers, the Commission estimates that 715
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
[[Page 3703]]
112. Satellite Telecommunications. This industry comprises firms
``primarily engaged in providing telecommunications services to other
establishments in the telecommunications and broadcasting industries by
forwarding and receiving communications signals via a system of
satellites or reselling satellite telecommunications.'' Satellite
telecommunications service providers include satellite and earth
station operators. The SBA small business size standard for this
industry classifies a business with $38.5 million or less in annual
receipts as small. U.S. Census Bureau data for 2017 show that 275 firms
in this industry operated for the entire year. Of this number, 242
firms had revenue of less than $25 million. Additionally, based on
Commission data in the 2021 Universal Service Monitoring Report, as of
December 31, 2020, there were 71 providers that reported they were
engaged in the provision of satellite telecommunications services. Of
these providers, the Commission estimates that approximately 48
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, a little more than of these providers can
be considered small entities.
3. Resellers
113. Local Resellers. Neither the Commission nor the SBA have
developed a small business size standard specifically for Local
Resellers. Telecommunications Resellers is the closest industry with a
SBA small business size standard. The Telecommunications Resellers
industry comprises establishments engaged in purchasing access and
network capacity from owners and operators of telecommunications
networks and reselling wired and wireless telecommunications services
(except satellite) to businesses and households. Establishments in this
industry resell telecommunications; they do not operate transmission
facilities and infrastructure. Mobile virtual network operators (MVNOs)
are included in this industry. The SBA small business size standard for
Telecommunications Resellers classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
1,386 firms in this industry provided resale services for the entire
year. Of that number, 1,375 firms operated with fewer than 250
employees. Additionally, based on Commission data in the 2021 Universal
Service Monitoring Report, as of December 31, 2020, there were 293
providers that reported they were engaged in the provision of local
resale services. Of these providers, the Commission estimates that 289
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
114. Toll Resellers. Neither the Commission nor the SBA have
developed a small business size standard specifically for Toll
Resellers. Telecommunications Resellers is the closest industry with a
SBA small business size standard. The Telecommunications Resellers
industry comprises establishments engaged in purchasing access and
network capacity from owners and operators of telecommunications
networks and reselling wired and wireless telecommunications services
(except satellite) to businesses and households. Establishments in this
industry resell telecommunications; they do not operate transmission
facilities and infrastructure. MVNOs are included in this industry. The
SBA small business size standard for Telecommunications Resellers
classifies a business as small if it has 1,500 or fewer employees. U.S.
Census Bureau data for 2017 show that 1,386 firms in this industry
provided resale services for the entire year. Of that number, 1,375
firms operated with fewer than 250 employees. Additionally, based on
Commission data in the 2021 Universal Service Monitoring Report, as of
December 31, 2020, there were 518 providers that reported they were
engaged in the provision of toll services. Of these providers, the
Commission estimates that 495 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
4. Other Entities
115. All Other Telecommunications. This industry is comprised of
establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems. Providers of
internet services (e.g., dial-up internet service providers (ISPs)) or
VoIP services, via client-supplied telecommunications connections are
also included in this industry. The SBA small business size standard
for this industry classifies firms with annual receipts of $35 million
or less as small. U.S. Census Bureau data for 2017 show that there were
1,079 firms in this industry that operated for the entire year. Of
those firms, 1,039 had revenue of less than $25 million. Based on this
data, the Commission estimates that the majority of ``All Other
Telecommunications'' firms can be considered small.
D. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
116. The NPRM proposes to revise the Commission's public complaint
process to accept complaints regarding digital discrimination of
access, as directed in section 60506 of the Infrastructure Act by: (1)
adding a dedicated pathway for digital discrimination of access
complaints; (2) collecting voluntary demographic information from
filers who submit digital discrimination of access complaints; and (3)
establishing a clear pathway for organizations to submit digital
discrimination of access complaints. The NPRM seeks comment on these
proposals. The NPRM also seeks comment and any other changes that the
Commission should make to the public complaint process to accept
complaints related to digital discrimination of access. The NPRM also
seeks comment on record proposals to place affirmative obligations the
Commission should place on broadband providers, including reporting and
recordkeeping requirements.
E. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
117. The RFA requires an agency to describe any significant
alternatives that it has considered in reaching its proposed approach,
which may include the following four alternatives (among others): (1)
the establishment of differing compliance or reporting requirements or
timetables that take into account the resources available to small
entities; (2) the clarification, consolidation, or simplification of
compliance and reporting requirements under the rules for such small
entities; (3) the use of performance rather than design standards; and
(4) an exemption from coverage of the rule, or any part thereof, for
such small entities.
118. The NPRM seeks comment how to incorporate section 60506 of the
Infrastructure Act's direction to account for ``technical and economic
feasibility'' in the Commission's definition of ``digital
discrimination of access,''
[[Page 3704]]
including issues of technical and economic feasibility faced by small
entities. The NPRM also seeks comment on the burden that various record
proposals to combat digital discrimination of access would place on
covered entities, including small entities, and ways to minimize that
burden.
F. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
119. None.
V. Procedural Matters
120. Ex Parte Requirements. This proceeding shall be treated as a
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. Persons making ex parte presentations must file a copy
of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a
different deadline applicable to the Sunshine period applies). Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentation must: (1) list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made; and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda, or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with Rule Sec. 1.1206(b). In proceedings governed
by Rule Sec. 1.49(f) or for which the Commission has made available a
method of electronic filing, written ex parte presentations and
memoranda summarizing oral ex parte presentations, and all attachments
thereto, must be filed through the electronic comment filing system
available for that proceeding, and must be filed in their native format
(e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this
proceeding should familiarize themselves with the Commission's ex parte
rules.
121. Paperwork Reduction Act. This document contains proposed new
or modified information collection requirements. The Commission, as
part of its continuing effort to reduce paperwork burdens, invites the
general public and the Office of Management and Budget (OMB) to comment
on the information collection requirements contained in this document,
as required by the Paperwork Reduction Act of 1995, 104-13. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment
on how we might further reduce the information collection burden for
small business concerns with fewer than 25 employees.
VI. Ordering Clauses
122. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i)-
(j), 303(r) of the Communications Act of 1934, as amended, 47 U.S.C.
151, 152, 154(i) through (j), 303(r), and section 60506 of the
Infrastructure Investment and Jobs Act, Public Law 117-58, 135 Stat.
429, 1245-46 (2021), codified at 47 U.S.C. 1754, that the Notice of
Proposed Rulemaking is adopted.
123. It is further ordered that, pursuant to applicable procedures
set forth in Sec. Sec. 1.415 and 1.419 of the Commission's Rules, 47
CFR 1.415, 1.419, interested parties may file comments on the Notice of
Proposed Rulemaking on or before 30 days after publication in the
Federal Register, and reply comments on or before 60 days after
publication in the Federal Register.
124. It is further ordered that the Commission's Consumer and
Governmental Affairs Bureau, Reference Information Center SHALL SEND a
copy of the Notice of Proposed Rulemaking, including the Initial
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of
the Small Business Administration.
Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2023-00551 Filed 1-19-23; 8:45 am]
BILLING CODE 6712-01-P
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