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Rule2023-28835

The Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination

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Published

January 22, 2024

Effective

March 22, 2024

Issuing agencies

Federal Communications Commission

Abstract

In this document, the Federal Communications Commission (Commission) adopts rules pursuant to section 60506 of the Infrastructure Investment and Jobs Act (Infrastructure Act) that establish a framework to facilitate equal access to broadband internet access service by preventing digital discrimination of access. These rules address policies and practices that impede equal access to broadband, while taking into account issues of technical and economic feasibility that pose serious challenges to full achievement of the equal access objective. The rules constitute an effective, balanced means to accomplish Congress's objective of ensuring that historically unserved and underserved communities throughout the Nation have equal opportunity to receive high-speed broadband service comparable to that received by others, without discrimination as to the terms and conditions on which that service is received.

Full Text

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[Federal Register Volume 89, Number 14 (Monday, January 22, 2024)]
[Rules and Regulations]
[Pages 4128-4164]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-28835]

[[Page 4127]]

Vol. 89

Monday,

No. 14

January 22, 2024

Part III

Federal Communications Commission

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47 CFR Parts 0, 1, and 16

The Infrastructure Investment and Jobs Act: Prevention and Elimination
of Digital Discrimination; Final Rule

Federal Register / Vol. 89 , No. 14 / Monday, January 22, 2024 /
Rules and Regulations

[[Page 4128]]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 1, and 16

[GN Docket No. 22-69; FCC 23-100; FR ID 190877]

The Infrastructure Investment and Jobs Act: Prevention and
Elimination of Digital Discrimination

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission
(Commission) adopts rules pursuant to section 60506 of the
Infrastructure Investment and Jobs Act (Infrastructure Act) that
establish a framework to facilitate equal access to broadband internet
access service by preventing digital discrimination of access. These
rules address policies and practices that impede equal access to
broadband, while taking into account issues of technical and economic
feasibility that pose serious challenges to full achievement of the
equal access objective. The rules constitute an effective, balanced
means to accomplish Congress's objective of ensuring that historically
unserved and underserved communities throughout the Nation have equal
opportunity to receive high-speed broadband service comparable to that
received by others, without discrimination as to the terms and
conditions on which that service is received.

DATES: Effective March 22, 2024, except for the amendment to 47 CFR
1.717 (amendatory instruction 5), which is delayed indefinitely. FCC
will publish a document in the Federal Register announcing the
effective date for the amendment to 47 CFR 1.717.

FOR FURTHER INFORMATION CONTACT: Wireline Competition Bureau,
Competition Policy Division, Aur[eacute]lie Mathieu, at (202) 418-2194,
<a href="/cdn-cgi/l/email-protection#c485b1b6a1a8ada1ea89a5b0acada1b184a2a7a7eaa3abb2">[email&#160;protected]</a>. For additional information concerning the
Paperwork Reduction Act information collection requirements contained
in this document, send an email to <a href="/cdn-cgi/l/email-protection#065654474660656528616970">[email&#160;protected]</a> or contact Nicole
Ongele, <a href="/cdn-cgi/l/email-protection#b6f8dfd5d9dad398f9d8d1d3dad3f6d0d5d598d1d9c0">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report
and Order (Report and Order) in GN Docket No. 22-69, FCC 23-100,
adopted on November 15, 2023, and released on November 20, 2023. The
full text of this document is available for download at <a href="https://docs.fcc.gov/public/attachments/FCC-23-100A1.pdf">https://docs.fcc.gov/public/attachments/FCC-23-100A1.pdf</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#f6b0b5b5c3c6c2b6909595d8919980">[email&#160;protected]</a> or call the Consumer & Governmental Affairs Bureau at
(202) 418-0530 (voice) or (202) 418-0432 (TTY).

Final Paperwork Reduction Act of 1995 Analysis

This document may contain new or modified information collection
requirements subject to the Paperwork Reduction Act of 1995 (PRA),
Public Law 104-13. This document will be submitted to the Office of
Management and Budget (OMB) for review under section 3507(d) of the
PRA. OMB, the general public, and other Federal agencies will be
invited to comment on the new or modified information collection
requirements contained in this proceeding.

Congressional Review Act

The Commission sent a copy of the Report and Order to Congress and
the Government Accountability Office pursuant to the Congressional
Review Act, see 5 U.S.C. 801(a)(1)(A).

Synopsis

1. In this Report and Order, we adopt rules pursuant to section
60506 of the Infrastructure Act that establish a framework to
facilitate equal access to broadband internet access service by
preventing digital discrimination of access. 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 Sec.
8.1(b) of [the Commission's rules], or any successor regulation.''
Infrastructure Act 60501(1); 47 CFR 8.1(b) (defining broadband internet
access service as ``a mass-market retail service by wire or radio that
provides the capability to transmit data to and receive data from all
or substantially all internet endpoints, including any capabilities
that are incidental to and enable the operation of the communications
service, but excluding dial-up internet access service. This term also
encompasses any service that the Commission finds to be providing a
functional equivalent of the service described in the previous sentence
or that is used to evade the protections set forth in this part.''). In
this Report and Order, we use the terms ``broadband,'' ``broadband
service,'' and ``broadband internet access service'' interchangeably.
These rules address policies and practices that impede equal access to
broadband, while taking into account issues of technical and economic
feasibility that pose serious challenges to full achievement of the
equal access objective. The rules we adopt today constitute an
effective, balanced means to accomplish Congress's objective of
ensuring that historically unserved and underserved communities
throughout the Nation have equal opportunity to receive high-speed
broadband service comparable to that received by others, without
discrimination as to the terms and conditions on which that service is
received.
2. The actions taken today are summarized below. Digital
Discrimination of Access Defined. In furtherance of our goal to
facilitate equal access to broadband internet access service, we adopt
the following definition of ``digital discrimination of access'':
``policies or practices, not 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, or are intended to have
such differential impact.'' Under the rules we adopt today, we will
investigate conduct alleged to be motivated by discriminatory intent,
as well as conduct alleged to have discriminatory effect, based on
income level, race, ethnicity, color, religion, or national origin.
Consistent with the definition of ``equal access'' in the statute, we
find that differentiation as to any available quality of service metric
for broadband service may provide a basis for liability under these
rules, absent sufficient justification.
3. Technical and Economic Feasibility. Consistent with Congress's
directive, our definition of digital discrimination of access fully
takes into account ``issues of technical and economic feasibility,''
constituting impediments to full achievement of the equal access goal
of the statute. We define ``technically feasible'' to mean ``reasonably
achievable as evidenced by prior success by covered entities under
similar circumstances or demonstrated technological advances clearly
indicating that the policy or practice in question may reasonably be
adopted, implemented, and utilized.'' We similarly define
``economically feasible'' to mean ``reasonably achievable as evidenced
by prior success by covered entities under similar circumstances or
demonstrated new economic conditions clearly indicating that the policy
or practice in question may reasonably be adopted, implemented, and
utilized.''
4. Consumers Afforded Protection from Digital Discrimination, and

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Entities and Services that are Subject to the Prohibition Against
Digital Discrimination of Access. We adopt rules focusing on whether
policies and practices differentially impact consumers' access to
broadband internet access service or are intended to do so. In this
vein, we specify that ``consumer'' means current and prospective
subscribers to broadband internet access service, including
individuals, groups of individuals, organizations, and groups of
organizations. Moreover, the scope of the rules we adopt today extends
not only to providers of broadband internet access service, but also to
entities that facilitate and otherwise affect consumer access to
broadband internet access service.
5. We adopt today the same definition of ``broadband internet
access service'' that appears in our rules at 47 CFR 8.1(b). In
accordance with section 60506, the rules we adopt today shall apply to
all policies and practices that affect a consumer's ability to have
equal access to broadband internet access service, including but not
limited to deployment, network upgrades, and maintenance. Covered
elements of service include both technical and non-technical elements
of service that may affect a consumer's ability to receive and
effectively utilize the service.
6. Enforcement. We adopt rules that allow for enforcement of our
prohibition against digital discrimination of access through self-
initiated Commission investigations and revise our informal complaint
process to accept complaints alleging digital discrimination of access,
including offering parties voluntary mediation overseen by Commission
staff when appropriate. Possible violations will be investigated by
Commission staff using our standard investigative toolkit, and all
penalties and remedies will be available when we determine that our
rules have been violated. The Commission will consider utilizing
consent decrees when appropriate. We decline, at this time, to create
an additional process for the filing and adjudication of formal
complaints akin to section 208 of the Communications Act.
7. Consumer Complaints. Consistent with Congress's directive, we
revise our informal consumer complaint process to accept complaints
from consumers or other members of the public that relate to digital
discrimination of access by establishing a dedicated pathway for
digital discrimination of access complaints including from
organizations, and collecting voluntary demographic information from
complainants.
8. State and Local Model Policies and Best Practices. We adopt the
Communications Equity and Diversity Council's recommendations that
propose model policies and practices for states and localities to
address digital discrimination of access. We emphasize that these model
policies and practices do not foreclose adoption by states and
localities of additional measures to ensure equal access to broadband
service in their communities.

Background

9. Section 60506 of Division F, Title V of the Infrastructure Act
is entitled ``Digital Discrimination.'' This provision supports
extensive broadband expansion programs in the Infrastructure Act and
requires that the Commission adopt rules to facilitate equal access to
broadband internet service. Section 60506(b) reads: ``Not later than 2
years after November 15, 2021, the Commission shall adopt final rules
to facilitate equal access to broadband internet access service, taking
into account the issues of technical and economic feasibility presented
by that objective, including--(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).''
10. The Commission's implementation of section 60506 builds on a
robust history of Commission regulatory action premised on
nondiscrimination and universal service, which, in turn, furthers the
goal of broadband internet access for all and addresses the digital
divide.

Commission's Efforts To Further Consumer Access to Broadband Internet
Service

11. At the core of the Commission's commitment to broadband
internet access for all is section 1 of the Communications Act of 1934,
as amended, which states the agency's purpose ``to make available, so
far as possible,'' a ``rapid, efficient, Nation-wide'' wire and radio
communication service with adequate facilities ``to all people of the
United States, without discrimination on the basis of race, color,
religion, national origin, or sex.'' Nondiscrimination and universal
service are cornerstone principles and drive agency policies to achieve
the broadest possible consumer access to communications services. In
the Telecommunications Act of 1996 (1996 Act), Congress expanded the
traditional goal of universal service to include increased access to
telecommunications and advanced services, such as broadband internet
access service, for all consumers at just, reasonable, and affordable
rates. The 1996 Act established principles for universal service that
focus on increasing access for consumers living in rural and insular
areas, and for low-income consumers. Section 706 of the 1996 Act
requires the Commission to report annually on whether broadband ``is
being deployed to all Americans in a reasonable and timely fashion.''
12. In 2009, Congress directed the Commission to develop a National
Broadband Plan to ensure every American has ``access to broadband
capability.'' The Commission released the National Broadband Plan in
March 2010, highlighting ways to ``[r]eform current universal service
mechanisms to support deployment of broadband and voice in high-cost
areas; and ensure that low-income Americans can afford broadband; and
in addition, support efforts to boost adoption and utilization.''
13. The Commission has long used its Universal Service funding
programs to further consumer access to broadband and bridge the digital
divide. These funding programs, which preceded the Infrastructure Act,
have historically helped to deliver broadband services to low-income
consumers and to unserved and underserved communities in rural and
insular areas. Further, these programs provide support in various ways,
including: offering to low-income consumers discounts on voice service
and/or broadband internet access service; providing funding to eligible
schools and libraries for affordable broadband services to help connect
students and members of local communities; providing funding for health
care providers to ensure that patients have access to broadband enabled
healthcare services; and offering subsidies to providers to build out,
deploy, and maintain networks that provide voice and broadband service
in high-cost areas.
14. These Commission actions help to ameliorate a digital divide
that has underpinnings in the country's historical segregation and
redlining practices in housing. Relying on historical research, data,
and surveys, numerous commenters correlate inequities in broadband
access to historically segregated housing patterns and discriminatory
housing practices. The record in this proceeding reflects that the
digital divide significantly tracks housing redlining that came into
existence under the National Housing Act of 1934, when the Federal
Housing

[[Page 4130]]

Administration directed the Home Owners' Loan Corporation to create
``residential security maps.'' These federally created maps outlined as
``high-risk'' those areas highly populated by minorities. Banks used
these maps to deny mortgage capital to minority residents living in
those high-risk areas, leading to disinvestment in these communities.
Against this historical and demographic backdrop, researchers have long
found that metropolitan areas with a history of redlining ``generally
remain more segregated and more economically disadvantaged, [and] . . .
have lower median household income, lower home values, older housing
stock, and rents which are lower in absolute terms (but often higher as
a percentage of income).'' This history has carried forward to
broadband access, as researchers have found that access to broadband in
the home can decrease in tandem with historical residential risk
classifications, and such differences in broadband access vary
depending on income levels, race, and ethnicity.

Consumer Access to Broadband

15. The Commission regularly reports on the number of Americans who
lack access to broadband internet access service. While the Commission
reported in 2021 that 14.5 million Americans lack access to broadband,
an independent study suggested that the actual number was as high as 42
million. Further, Microsoft's data usage, as of 2020, suggested that as
many as 120.4 million people in the United States did not use the
internet at broadband speeds of 25/3 Mbps.
16. The uncomfortable reality is that too many households in the
United States lack equal access to broadband. Lack of equal access to
broadband is not limited to historically redlined urban communities,
but also encompasses and acutely affects both rural and urban low-
income communities, other rural communities, and Tribal areas.

The Global COVID-19 Pandemic Heightened the Inequities in Broadband
Internet Access

17. The global COVID-19 pandemic compounded the problem of unequal
access to broadband internet access service in the United States. The
digital divide became more stark as shutdowns caused a heightened need
for high-quality broadband internet access service to meet basic needs
such as working from home, distance learning, accessing public benefits
and services, telehealth, job-hunting, remote worship activities,
remote family and social connections, and other daily activities. In
2020, a Pew Research Center survey found that nearly half of adults
surveyed stated that internet access was essential during the pandemic.
And in that same survey, Pew found that at that time, ``[s]ome 43% of
lower-income parents with children whose schools shut down say it is
very or somewhat likely their children will have to do schoolwork on
their cellphones; 40% report the same likelihood of their child having
to use public Wi-Fi to finish schoolwork because there is not a
reliable internet connection at home.'' Subsequently, in 2021, Pew
surveys found that 57% of households making less than $30,000 had home
broadband, compared to 93% of households making $100,000 or more, and
additionally, white survey participants were more likely than black and
Hispanic survey participants to report having home broadband access.
18. Moreover, based on data contributed by civil society
organizations, educational institutions, and private sector companies,
among households with broadband access, lower-income communities were
observed to have slower effective speeds. For example, broadband
internet access service has been found to be 21% lower in Tribal areas,
compared to neighboring non-Tribal areas, and download speeds were
lower. Overall, research and data indicate that during the pandemic,
entrenched disparities in broadband internet access service in low-
income, rural, and minority households adversely affected all aspects
of daily life, including accessing education, seeking housing and
employment online, accessing telehealth medical care, and applying for
services. For example, as the pandemic caused the vast majority of K-12
students across the country to receive online instruction, 14% of
parents had to access public Wi-Fi because there was no reliable
connection to the home. This figure was 4% in high-income households
and 23% in lower income households.

Infrastructure Investment and Jobs Act of 2021

19. On November 15, 2021, in the midst of the pandemic, Congress
enacted the Infrastructure Act providing $65 billion for broadband
programs for the purpose of expanding access and affordability to
under-served and unserved areas and addressing the ``digital divide.''
During House debates on the Infrastructure Act, House Majority Whip
James Clyburn (D-SC) testified about the harm caused by the digital
divide and the need to address inequities in access to high-speed
broadband internet service. Division F of the Infrastructure Act is
entitled ``Broadband.'' In the legislation, Congress found: (1) Access
to affordable, reliable, high-speed broadband is essential to full
participation in modern life in the United States; (2) The persistent
``digital divide'' in the United States is a barrier to the economic
competitiveness of the United States and equitable distribution of
essential public services, including health care and education; (3) The
digital divide disproportionately affects communities of color, lower-
income areas, and rural areas, and the benefits of broadband should be
broadly enjoyed by all; and (4) In many communities across the country,
increased competition among broadband providers has the potential to
offer consumers more affordable, high quality options for broadband
service.
20. The 2019 novel coronavirus pandemic has underscored the
critical importance of affordable, high speed broadband for
individuals, families, and communities to be able to work, learn, and
connect remotely while supporting social distancing.

The Infrastructure Act's Funding Measures Promote Equal Access

21. The Infrastructure Act's funding measures are intended to
promote access to broadband internet access service and reduce the
digital divide. Under Title I through Title V of Division F of the Act,
Congress authorized funding for expansive broadband access,
affordability, and digital literacy programs. These programs fall into
seven major program areas: the Broadband Equity, Access, and Deployment
Program ($42.45 billion), the Affordable Connectivity Program ($14.2
billion) Digital Equity Planning, Capacity and Competitive Grants
($2.75 billion), the Tribal Broadband Connectivity Program ($2
billion), Rural Utilities Service at the Department of Agriculture ($2
billion), the Middle Mile Grant Program ($1 billion), and Private
Activity Bonds (approximately $600 million).

The Infrastructure Act Requires That the Commission Undertake Specific
Measures To Support the Goal of Equal Access

22. In addition to providing funding for broadband deployment in
unserved and underserved communities, the Infrastructure Act sets out
specified measures for the Commission in service of the goal that
``every American ha[ve] access to reliable high-speed internet.'' Title
I directs the Commission to create a broadband funding map, which is an
``online mapping tool to provide a

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locations overview of the overall geographic footprint of each
broadband infrastructure deployment project funding by the Federal
Government.'' Through this map, and the National Broadband Map, the
Commission and other governmental and non-governmental stakeholders can
track broadband deployment projects to ensure that broadband is
deployed in historically unserved and underserved areas. Title V,
entitled ``Broadband Affordability,'' addresses affordability of
broadband internet for low-income consumers. In addition to expanding
funding to offset the cost of broadband internet for low-income
households through the Affordable Connectivity Program (ACP), Title V
promotes transparency by requiring the Commission to adopt rules for
broadband providers to display easy-to-understand labels that allow
consumers to comparison shop for broadband services. This promotes
competition by providing consumers clear, concise, and accurate
information about broadband internet prices and fees, performance, and
network practices.
23. Most relevant here, section 60506 of the Infrastructure Act
sets out further measures to support the fundamental objective of
ensuring equal access to broadband. The Statement of Policy provides
that ``insofar as technically and economically feasible'' the
Commission ``should take steps to ensure that all people of the United
States benefit from equal access to broadband internet access
service.'' In addition to mandating the adoption of rules to facilitate
equal access by ``preventing digital discrimination of access'' on
specified bases and identifying necessary steps to eliminate such
discrimination, matters we discuss in great depth throughout this
Report and Order, section 60506 requires the Commission and the
Attorney General to ``ensure that Federal policies promote equal access
to robust broadband internet access service by prohibiting deployment
discrimination'' on specified bases. The Commission must also ``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 revise its ``public
complaint process to accept complaints from consumers or other members
of the public that relate to digital discrimination.''

Commission's Actions To Further Promote Equal Access

Commission Funding Programs
24. The Commission's most recent efforts to get marginalized
communities connected to high-quality broadband internet access service
include administration of well-targeted subsidy programs. The
Affordable Connectivity Program and its predecessor, the Emergency
Broadband Benefit (EBB) Program, have been instrumental in helping low-
income households afford broadband internet. Under the program,
eligible low-income households can receive a discount of $30 per month
toward internet service and up to $75 per month for eligible households
on qualifying Tribal lands. Eligible households can also receive a one-
time discount of up to $100 to purchase a laptop, desktop computer, or
tablet from participating providers. As of August 2023, more than 20
million households in the United States have enrolled in the program.
25. During the pandemic, the Commission expedited adoption of the
Emergency Connectivity Fund (ECF) and COVID-19 Telehealth Programs to
provide 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.
Communications Equity and Diversity Council
26. On June 29, 2021, the Commission chartered the Communications
Equity and Diversity Council (CEDC), a federal advisory committee
created for the purpose of presenting 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.'' In chartering the CEDC, the
Commission renewed the charter of the Advisory Committee on Diversity
and Digital Empowerment under a new name. Within the CEDC is the
Digital Empowerment and Inclusion Working Group that was tasked with
recommending ``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'' as required by
section 60506(d).
27. Since its formation, the CEDC and its working groups have taken
significant steps towards satisfying its mission. On November 7, 2022,
the CEDC submitted Recommendations and Best Practices to Prevent
Digital Discrimination and Promote Digital Equity to the Commission.
The CEDC found that ``COVID-19 exacerbated economic disparities for
those who did not already have access to broadband services, especially
in communities of color, where a lack of broadband access can reinforce
systemic inequality. The CEDC further found that data supported the
conclusion that minority status and income correlated with broadband
access. To that end, the CEDC compiled findings from its three CEDC
Working Groups and proposed recommendations for, among other things,
model policies and best practices for states and localities that
address discrimination in broadband access.
28. Moreover, in furtherance of its mission, on March 23, 2023, the
CEDC convened a range of community organizations, broadband internet
access providers, federal agencies with emergency broadband funding,
and state agencies to assess lessons learned concerning programs that
provided broadband connectivity to communities during the pandemic. The
CEDC released recommendations on this topic on June 15, 2023.
Task Force To Prevent Digital Discrimination
29. Force to Prevent Digital Discrimination (Task Force). The Task
Force is charged with coordinating the development of rules and
policies to combat digital discrimination and promote equal access to
broadband, overseeing the development of model state and local
policies, and improving how the Commission seeks feedback from persons
facing digital discrimination in their communities.
30. The Task Force has engaged in significant outreach nationwide
to understand the depth of problems in accessing broadband,
particularly as experienced by persons in historically excluded, low-
income, rural, and marginalized communities. On January 25, 2023, the
Task Force released a Broadband Access Experience Form for consumers to
state their experience with accessing broadband internet. The Task
Force explained that the experiences shared by consumers help inform
the work of the Commission. Further, the Task Force has held numerous
public listening sessions to gain additional information and
understanding from affected communities, state, local and Tribal
governments, public interest advocates, and providers about challenges,
barriers, and experiences with accessing broadband. In addition,

[[Page 4132]]

the Task Force conducted outreach efforts to educate the public on the
Commission's rulemaking procedure, and to gather data, narratives, best
practices, and recommendations. Summaries of these listening sessions
and meetings have been entered into the record in this proceeding.

Notice of Inquiry and Notice of Proposed Rulemaking

31. The Commission has taken iterative steps to form a robust
record for the rules adopted in today's Report and Order. In March
2022, the Commission released a Notice of Inquiry seeking comment on
the rules that the Commission should adopt to implement section 60506.
By the Notice of Inquiry, the Commission invited comment on the
requirements encompassed in section 60506, in order to inform a
forthcoming rulemaking to implement the requirements of the statute.
32. In December 2022, the Commission released a Notice of Proposed
Rulemaking (NPRM) seeking focused comment on potential rules to address
digital discrimination of access pursuant to section 60506. The
Commission sought comments on its proposals to: (1) adopt a definition
of ``digital discrimination of access,'' (2) revise the Commission's
informal consumer complaint process to accept complaints of digital
discrimination of access, and (3) adopt model policies and best
practices for states and localities combatting digital discrimination
of access. The Commission also sought comment on other rules the
Commission should adopt to facilitate equal access and combat digital
discrimination of access, and on the legal authority for adopting
rules. The Commission received more than 1,400 pages of record comments
and ex partes from a wide range of stakeholders including public
interest organizations, broadband internet access providers, state,
local and Tribal governments, industry advocacy organizations, and
research institutes. Informed by this record, we adopt rules in
fulfillment of our mandate from Congress in section 60506 of the
Infrastructure Act.

Discussion

33. Based on our review of the record received in response to the
Notice of Inquiry and NPRM, we adopt rules in this Report and Order to
implement subsections (b), (d) and (e) of section 60506. First, we
adopt a definition of ``digital discrimination of access'' and explain
its component parts. Next, we adopt rules to prohibit digital
discrimination of access. Third, we outline the scope of that
prohibition, identifying the consumers, entities, and services covered
by the prohibition. Fourth, we adopt rules for enforcing the
prohibition and other requirements set forth in our rules, and we
explain how we will assess when a policy or practice differentially
affects consumer access to broadband internet access service. Finally,
we adopt changes to our informal complaints process so the Commission
can accept digital discrimination of access complaints, address other
issues on the record, and adopt model policies and best practices for
states and localities combating digital discrimination.

Definition of Statutory Terms

34. Section 60506 is part of a comprehensive broadband access and
affordability framework intended to expand broadband coverage in the
United States, improve the quality of broadband services, and increase
broadband adoption rates in low-income communities. As many commenters
note, the bulk of the Infrastructure Act's broadband-related provisions
are directed toward (1) improving broadband access in unserved and
underserved communities by incentivizing investment in hard-to-build
areas (principally through tens of billions of dollars in federally
administered grants), and (2) improving broadband adoption rates in
low-income communities through subsidies to qualifying consumers for
high-speed broadband service and related equipment.
35. The Infrastructure Act's historic investment incentives
represent an acknowledgement by Congress that: (1) deploying,
upgrading, and maintaining high-speed broadband networks is an
expensive enterprise, even for the largest of broadband providers, (2)
networks will only be built where they can be deployed at acceptable
cost and then profitably operated, and (3) such legitimate, profit and
loss considerations likely account for many of the gaps in access to
high-speed broadband service across the United States. The investment
incentives in the Infrastructure Act directly address the very real
technical and economic constraints facing many broadband providers as
they work to expand their networks to reach unserved and underserved
communities across the country.
36. But even while seeking to address these legitimate business
constraints, Congress recognized that other factors might also have
played a significant role in creating and maintaining the digital
divide in the United States. Thus, alongside the ambitious programs in
the Infrastructure Act for improving broadband access in unserved and
underserved communities, Congress, in section 60506, specifically
directed the Commission to facilitate equal access to broadband
service, including addressing discrimination in the provision of access
to broadband service.
37. Section 60506(a) first declares ``the policy of the United
States that, insofar as technically and economically feasible . . .
subscribers should benefit from equal access to broadband internet
access service within the service area of a provider of such service .
. . [and that] the Commission should take steps to ensure that all
people of the United States benefit from equal access to broadband
internet access service.'' Section 60506(b) then directs the Commission
to ``adopt final rules to facilitate equal access to broadband internet
access service, taking into account the issues of technical and
economic feasibility presented by that objective,'' and mandates that
those rules 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'' such digital discrimination of access.
38. Critically important to our understanding of the reach of
section 60506 is its definition of ``equal access.'' Section 60506(a)
declares in the Statement of Policy that the Commission should take
steps to ensure ``equal access'' to broadband internet access service
across our Nation, and section 60506(b) directs the Commission to adopt
rules to ``facilitate equal access'' to broadband internet access
service. The ``equal access'' that we are to ensure and facilitate is
defined in subsection (a)(2) as ``the equal opportunity to subscribe to
an offered service that provides comparable speeds, capacities,
latency, and other quality of service metrics in a given area, for
comparable terms and conditions.'' The statute thus focuses the
Commission's energies on the objective of equal opportunity, a concept
and goal that is well known in American life. And in service of this
equal opportunity goal, the Commission is directed, and thereby
authorized, to adopt rules to prevent discrimination on the listed
bases and to identify ways to eliminate its occurrence and effects.

Digital Discrimination of Access Defined

39. By enacting section 60506, Congress vested the Commission with
authority to adopt and enforce rules to address the problem of digital
discrimination of access. To achieve

[[Page 4133]]

that purpose, the Notice advanced proposals for defining ``digital
discrimination of access'' and the legal standard for determining a
violation of the rules. We adopt the following definition of ``digital
discrimination of access,'' which is essentially identical to our
proposal in the Notice: Policies or practices, not justified by genuine
issues of technical or economic feasibility, that (1) differentially
impact consumers' access to broadband internet access service based on
their income level, race, ethnicity, color, religion, or national
origin or (2) are intended to have such differential impact.
40. In so defining ``digital discrimination of access,'' we find
that to achieve the statute's equal access purposes, the legal standard
must address not only business conduct motivated by discriminatory
intent, but also business conduct having discriminatory effects.
41. Virtually all commenters agree that digital discrimination of
access encompasses business conduct motivated by discriminatory intent.
Certainly treating a person or a group of persons ``less favorably than
others because of a protected trait'' is ``the most easily understood
type of discrimination.'' Under our adopted rules, business conduct
motivated by discrimination on one of the six listed bases (income
level, race, color, ethnicity, religion, and national origin) would
generally be prohibited.
42. The disagreement among commenters centers on whether policies
and practices having discriminatory effects should be prohibited under
our definition of digital discrimination of access. Most industry
commenters argue that the definition must be limited to disparate
treatment, i.e., intentional discrimination, relying largely on case
law interpreting the Fair Housing Act (FHA) and asserting that a
Commission rule permitting claims based on disparate impact, i.e.,
discriminatory effect, would conflict with other provisions of the
Infrastructure Act, and could disincentivize investment in broadband
networks. On the other hand, most public interest and government
commenters, relying on the same case law, argue that the rule must
encompass disparate impact claims because most discrimination in
broadband access stems from business practices having discriminatory
effect, and any rule that excludes a disparate impact liability
standard would render section 60506 largely meaningless. In adopting a
definition of digital discrimination of access that encompasses both
disparate treatment and disparate impact, we are guided primarily by
the text of the statute, including its expressly stated goal of
ensuring ``equal access'' to broadband internet access service.

Section 60506 Supports the Commission's Adoption of the Legal Standards
Stated in the Defined Term

43. Statutory interpretation focuses on ``the language itself, the
specific context in which that language is used, and the broader
context of the statute as a whole.'' The text and context of section
60506 of the Infrastructure Act fully support our adopted definition of
digital discrimination of access and its application, as does the
overall framework of the Infrastructure Act and section 60506.

Disparate Treatment

44. Section 60506 plainly addresses intentional discrimination,
i.e., an intentional act that treats a person, or group of persons,
``less favorably than others because of a protected trait.'' Virtually
all commenters agree on this point, and we find no basis for
disagreeing with this consensus view. Our definition of ``digital
discrimination of access'' thus includes any act by a covered entity
that is intended to differentially impact access to broadband internet
access service on one of the listed bases and is not justified by
genuine issues of technical or economic feasibility. Based on the
record before us, we do not expect to encounter many instances of
intentional discrimination with respect to deployment and network
upgrades, as there is little or no evidence in the legislative history
of section 60506 or the record of this proceeding indicating that
intentional discrimination by industry participants based on the listed
characteristics substantially contributes to disparities in access to
broadband internet service across the Nation. Moreover, in the cases in
which we do encounter intentional discrimination, we believe the entity
that engaged in the discriminatory conduct will be hard pressed to
justify such conduct on technical or economic feasibility grounds.
Therefore, while we will allow such justifications to be raised and
will consider them on a case-by-case basis, we expect that in most
cases, a determination that a covered entity engaged in intentional
discrimination will lead to a finding of liability under our rules.

Disparate Impact

45. In determining whether section 60506 authorizes us to include
disparate impact in our definition of digital discrimination of access,
we look to the guidance provided in the Supreme Court's decision in
Texas Department of Housing and Comm'ty Affairs v. Inclusive
Communities Project, 576 U.S. 519, 533 (2015) (Inclusive Communities).
There, the Court set out a framework for determining when an
antidiscrimination statute ``must be construed to encompass disparate
impact claims.'' Under that framework, a disparate impact legal
standard is authorized where the statutory text is ``results based''
and such a standard is ``consistent with statutory purpose.'' And,
where evidence of a statistical disparity is shown to support a
complaint of disparate impact, liability is properly limited where (1)
the challenged policy or practice is shown to cause the disparity
complained about, and (2) business owners are permitted to explain the
valid interests served by the challenged policy or practice. We find
that 60506 authorizes a disparate impact liability standard and that
our implementing rules, outlined below, fully comport with the limiting
criteria set out in Inclusive Communities.

Statutory Text and Context

46. The language of section 60506 falls within Division F
(Broadband Access) of the Infrastructure Act, where Congress addresses
the problem of the ``digital divide'' in our country and the urgency of
corrective action because ``[a]ccess to affordable, reliable, high-
speed broadband is essential to full participation in modern life in
the United States.'' The term ``equal access'' is defined in section
60506 as ``the equal opportunity to subscribe to an offered service''
of comparable quality on comparable terms and conditions. The term
``equal access'' lies at the center of section 60506's Statement of
Policy in subsection (a). At subsection (b) Congress directs the
Commission to adopt final rules to ``facilitate equal access'' which
includes ``preventing digital discrimination'' and ``identifying
necessary steps . . . to eliminate [such] discrimination.'' As we
explain below, the facial text, context and purposes of the statute
establish Congress's intent that our implementing rules address conduct
having discriminatory effects as well as conduct motivated by
discriminatory intent.
47. The operative text mandates the adoption of rules to
``facilitate equal access to broadband'' which includes ``preventing
digital discrimination of access based on'' specified characteristics,
and ``identifying necessary steps . . . to eliminate [such]
discrimination.'' The term ``equal access'' is defined in section
60506(a) as ``the equal opportunity to subscribe to an offered
service'' of comparable

[[Page 4134]]

quality on comparable terms and conditions and lies at the center of
section 60506's Statement of Policy. We reject the argument that
section 60506(a)(2) ``is irrelevant to the meaning of
`discrimination''' even if it focuses on consequence. As explained, we
interpret ``of access'' in subsection (b)(1) to incorporate the
definition of ``equal access'' in (a)(2). At subsection (b), Congress
directs the Commission to adopt final rules to ``facilitate equal
access'' to broadband internet access service. Like Title VII of the
Civil Rights Act of 1964 and the Age Discrimination in Employment Act,
section 60506 defines ``access'' in terms of opportunity. Because the
statute defines ``access'' as the ``opportunity to subscribe,'' this
operative text focuses on the impact of a policy or practice on the
consumer's chance or right to obtain service rather than intent.
48. Courts commonly look to the ``ordinary meaning'' of a statute's
words to interpret their meaning when the statute itself does not
provide a definition. Looking at other operative text of section 60506,
given its ordinary meaning, we find that each term targets the
``consequences of actions.'' For undefined statutory terms, courts can
look to the ``dictionary for clarification of the plain meaning of
words selected by Congress.'' For instance, subsection (a)(1) of the
statute focuses on the ``opportunity'' to subscribe \1\ and subsection
(a)(3) states that consumers should ``benefit'' from equal access to
broadband. The plain meaning of ``opportunity'' is ``a good chance for
advancement or progress,'' and ``benefit'' means ``to receive help or
an advantage.'' Neither term depends on the mindset of the actor, but
rather the effect of the action. Section 60506(b), moreover, directs
the Commission to ``facilitate'' equal access by ``preventing'' digital
discrimination of access, and identifying necessary steps to
``eliminate'' it. The plain meaning of ``facilitate'' is ``to make
easier or help bring about.'' The meaning of ``prevent'' as referenced
in subsection (b)(1) is ``keep[ing] (something) from happening or
arising,'' and ``eliminate'' as referenced in subsection(b)(2) means to
``put an end to or get rid of.'' Commenters urge us to adopt a
disparate impact legal standard due to the documented disparities in
broadband access nationwide. Again, these definitions, taken from the
Merriam-Webster's (online) Dictionary, clearly suggest an effects-based
orientation--whether looking at each word independently or in context
as written in the statute--rather than a singular focus on the mindset
of the actor. Equal access can be denied by policies and practices
having discriminatory effects even where no discriminatory motive is
present, and it is our considered view that most of the gaps in access
to broadband internet service in our country, to the extent that they
are not a product of legitimate business constraints that Congress
sought to address in other provisions of the Infrastructure Act, stem
from policies and practices that are neutral on their face, rather than
from intentionally discriminatory conduct on the part of covered
entities and other industry participants. Further, the use of the words
``based on'' in section 60506(b)(1) does not limit its reach to
instances of intentional discrimination under controlling precedent.
Some commenters argue that the statute's use of the term ``based on''
limits the statute to an intent-only legal standard. This argument by
commenters has already been expressly rejected by the Supreme Court in
Griggs v. Duke Power Co., 401 U.S. 424 (1971) (Griggs) and its progeny.
Looking at the other nondiscrimination statutes that contain similar
``based on'' language--section 703(a)(2) of Title VII, section 4(a)(2)
of the ADEA, and section 804(a) of the FHA--each of these statutes were
found by the Court to authorize disparate impact claims because of the
results-based statutory language. Just as with these antidiscrimination
statutes, section 60506's ``based on'' text does not foreclose
utilizing a disparate impact legal standard. The disparate impact
standard is authorized by section 60506, as it is drawn from the
``equal access'' and other ``results-based'' statutory language and
clear purposes of the statute.
---------------------------------------------------------------------------

\1\ 47 U.S.C. 1754(a)(1).
---------------------------------------------------------------------------

49. In reaching this conclusion, we are mindful of the history of
disparate impact analysis as it applies to federal anti-discrimination
statutes. It was first addressed in Griggs. where the Supreme Court
interpreted section 703(a)(2) of Title VII of the Civil Rights Act to
authorize disparate impact liability. Section 703(a)(2) of Title VII
made it ``an unlawful practice for an employer'' to ``limit, segregate,
or classify . . . employees or applicants for employment in any way
which would deprive any individual of employment opportunities or
otherwise adversely affect his status as an employee because of such
individual's race, color, religion, sex or national origin.'' There,
the Court interpreted the statutory text to prohibit not only ``overt
discrimination'' but also ``practices that are fair in form, but
discriminatory in operation.'' Further, the Court stated that ``[u]nder
[Title VII], practices, procedures, or tests neutral on their face, and
even neutral in terms of intent, cannot be maintained if they operate
to `freeze' the status quo of prior discriminatory employment
practices.'' The Court reasoned that from this language ``Congress
directed the thrust of [Sec. 703(a)(2)] to the consequences of
employment practices, not simply the motivation.'' Notably, the Court
stated that the statute's goal of achieving ``equality of employment
opportunities and remov[ing] barriers that have operated in the past''
to favor some individuals over others afforded protected status must be
interpreted to allow disparate impact claims. Section 4(a)(2) of the
Age Discrimination in Employment Act (ADEA) contains similar language
as that of Title VII, and a plurality of the Court in Smith v. City of
Jackson, 544 US 228 (2005) (Smith), ruled that the statutory text
authorized disparate impact liability just as it did in Griggs.
50. Similar reasoning was employed in examining section 804(a) of
the FHA by the Court in Inclusive Communities, even though the
provision used different results-based language than did Title VII and
the ADEA. The FHA makes it unlawful to ``refuse to sell or rent . . .
or otherwise make unavailable or deny, a dwelling to any person because
of'' a protected status. The Court in Inclusive Communities observed
``the logic of Griggs and Smith provides strong support for the
conclusion that the FHA encompasses disparate-impact claims'' even
though the results-oriented language was different. The Court observed
that ``[i]t is true that Congress did not reiterate Title VII's exact
language in the FHA, but that is because to do so would have made the
relevant sentence awkward and unclear.'' So, instead, ``Congress thus
chose words that serve the same purpose and bear the same basic meaning
but are consistent with the structure and objectives of the FHA.''
Likewise, in the context of section 60506, Congress did not repeat the
results-based language that appears in Title VII, the ADEA, the FHA or
the many other federal anti-discrimination statutes that have been
determined to prohibit disparate impacts on specified bases. Title VI
authorizes promulgation of disparate impact regulations. Instead,
Congress chose words appropriate to the statute's purpose of promoting
equal access to broadband internet service; the statute appropriately
references ``equal access,'' ``equal opportunity'' and other
terminology that goes to results or

[[Page 4135]]

consequences of actions (or counteracting those results or
consequences), and not to the mindset of actors. For these reasons, we
disagree with commenters who argue that section 60506 does not have
results-oriented language or other textual markers that authorize
disparate impact liability.

Statutory Purpose

51. Our reading of the statutory text to encompass disparate impact
aligns with the overall scheme of the Infrastructure Act, and with the
purpose of section 60506 specifically. As described above, promoting
broadband internet access has been a longstanding policy objective for
the Commission. The 1996 Act expanded the goal of universal service to
include advanced services such as broadband internet service, and the
Commission used its universal funding programs to address the
persistent digital divide. Then, in 2020, the global COVID-19 pandemic
necessitated social distancing that made the ongoing digital divide
even more evident and troublesome. Some commenters in this proceeding
argue, directly or indirectly, that ``digital discrimination'' does not
exist. But those arguments are belied by Congress's findings in the
Infrastructure Act and the record compiled in this proceeding
correlating the digital divide with historical discrimination. In all
events, Congress has directed the Commission to take swift action to
prevent digital discrimination of access. Therefore, we do not find it
necessary to evaluate claims by commenters that digital discrimination
of access does not exist. Such arguments would more appropriately have
been made to Congress when it was considering this legislation. We have
neither the authority, nor the inclination, to question the factual
bases for Congress's directives to the Commission. Indeed, section
60506 aligns with the Commission's longstanding obligation to promote
nondiscrimination in the telecommunications sector. Section 202(a) of
the Communications Act is a nondiscrimination provision that makes it
unlawful for common carriers to ``discriminat[e] in charges, practices,
classifications, regulations, facilities, or services for or in
connection with like communications service . . . or to . . . .
advantage . . . any particular person, class of persons, or locality,
or to subject any particular person, class of persons, or locality to
any undue or unreasonable prejudice or disadvantage.'' It requires no
showing of discriminatory intent to establish a violation. Under
section 202, where ``like communications services'' are provided by the
same provider but on different terms or conditions, the provider must
justify any difference as reasonable.
52. Gaps in access to high-quality broadband across the country led
Congress to enact the broadband-related provisions of the
Infrastructure Act, which creates historic investment incentives and
affordability subsidies to address some of the causes of the digital
divide. The Infrastructure Act also clearly mandates certain
prophylactic measures to address discriminatory conduct that is not
addressed elsewhere in the legislation. For the past half century, our
country's civil rights jurisprudence has recognized that equal
opportunity to achieve economic and social benefits can be denied
intentionally because of the personal characteristics or status of the
person seeking the opportunity or benefit, or it can be denied
unintentionally because of facially neutral policies or practices that
disproportionately exclude persons possessing such characteristics or
status, and both types of denial are unlawful. Disparate impact
analysis has maintained its foundational standing in the courts, most
recently in Inclusive Communities, as a means for addressing harm
caused by policies or practices that have discriminatory effects and
lack adequate business justification. We find that by defining the
goals of section 60506 in terms of ``equal access'' and ``equal
opportunity,'' especially in light of the 52-year history of disparate
impact analysis in civil rights law, Congress expressed its intention
that the Commission's implementing regulations address business conduct
having the effect of denying designated groups of consumers the equal
opportunity to subscribe to an offered broadband service, regardless of
the motivation for such actions.
53. As further support for the Congressional purpose that drives
our actions today, the record in this proceeding contains substantial
evidence of gaps in access among persons in some low-income, rural,
Tribal, and minority communities. As noted above, there is little or no
evidence in the legislative history of the Infrastructure Act or the
record of this proceeding that impediments to broadband internet access
service are the result of intentional discrimination based on the
criteria set forth in the statute. Rather, we must conclude that such
impediments are more likely driven by neutral policies or practices
(i.e., business decisions) that have discriminatory effects.

Section 60506 Properly Limits Disparate Impact Liability

54. Even where a statute contains ``results-based'' text that
authorizes disparate impact claims, the liability standard must require
a showing that a challenged policy or practice is causing the disparity
complained about, and ``avoid displacement of legitimate practices.''
Both of these factors are met by the rules we adopt today.
55. First, we will require that any determination of differential
impact that relies on observed disparity must point to a specific
policy or practice that is causing the disparity. A ``robust causality
requirement'' ensures that any statistical imbalance does not alone
establish liability and thus protects covered entities ``from being
held liable for . . . disparities they did not create.'' We therefore
require that any determination of liability under our rules that is
founded on statistical disparity must include a determination that the
disparity is caused by a specific policy or practice of the covered
entity under investigation.
56. Next, the rules will give covered entities an opportunity to
present justifications for discriminatory policies and practices.
Section 60506 sets out such limitation by requiring that our rules
facilitate equal access while taking into account ``issues of technical
and economic feasibility.'' Where the Commission believes there is
credible evidence that a covered entity's policy or practice
differentially impacts access to broadband internet access service on
the basis of income level, race, ethnicity, color, religion, or
national origin, the covered entity will have the opportunity to prove
that the policy or practice is nevertheless ``justified by genuine
issues of technical or economic feasibility.'' We anticipate that such
justification will include proof that there is not a reasonably
available and achievable alternative policy or practice that would
serve the entity's legitimate business objectives with less
discriminatory effect. In this Report and Order, we explain the meaning
of these terms, and how they will be applied on a case-by-case basis in
the context of our self-initiated investigations of digital
discrimination of access complaints.

Adopting a Rule That Encompasses Disparate Impact Claims Does Not
Conflict With the Infrastructure Act's Funding Programs and Will Not
Chill Broadband Investment

57. Contrary to some commenters' claims, including disparate impact
in our definition of digital discrimination of access does not conflict
with the

[[Page 4136]]

broadband funding programs set out in the Infrastructure Act and will
not otherwise chill investment in broadband networks. The deployment
and digital equity funds provided for in the Infrastructure Act
prioritize unserved and underserved areas by addressing technical and
economic issues that have hindered investment in ``hard-to-build''
areas. By contrast, section 60506 and the Commission's implementing
rules are centered on conduct that does not stem from such issues. Our
definition of ``digital discrimination of access'' highlights this
contrast by specifically exempting policies and practices that are
justified by ``genuine issues of technical and economic feasibility.''
Thus, the discrimination addressed in section 60506 and our
implementing rules is not addressed in other provisions of the statute,
and vice versa. There is no conflict.
58. Nor do we believe that including disparate impact in our
definition of digital discrimination of access will chill investments
in broadband networks. Congress has provided historic funding
incentives aimed to spur broadband investments in unserved and
underserved communities throughout the United States. Those incentives,
once again, address the very real technical and economic challenges
that have hindered deployment, upgrades, and maintenance of networks in
those communities. We are not persuaded that adoption of a disparate
impact standard will disincentivize economic investments in networks
out of fear that doing so might somehow require uneconomic investments.
Again, we emphasize that under the rules we adopt today, there can be
no liability determination for disparate impact unless (1) there is a
differential in access to broadband service; (2) the differential is
caused by a specific policy or practice of the covered entity; and (3)
the covered entity fails to prove that the policy or practice is
justified on genuine technical or economic grounds. When providing
broadband access to a particular area is impeded by genuine issues of
technical or economic feasibility, the covered entity should be able to
explain those issues and offer substantial evidence to support them.
While our rules will require greater diligence by covered entities in
determining and documenting the reasons for access gaps in their
service areas, we do not think that result is overly burdensome in
furtherance of the statutory goal of equal access, nor do we think it
will disincentivize investment in broadband networks.

Other Considerations

59. Having reached the central determinations for adopting a
definition of digital discrimination of access and the applicable legal
standards, we respond to other considerations commenters raise.
Commenters raise additional arguments regarding interpretation of
``equal access,'' legislative history, and the role that a covered
entity's profitability and access to consumer data should play in our
definition of digital discrimination of access analysis. We address
each of those considerations in turn.
60. Interpretation of ``equal access.'' Commenters urge us to
interpret ``equal access'' to require a showing of intent. Given that
``equal access'' is defined by statute, is inherently ``results
based,'' and is coupled with other operative terms that are ``results
based,'' we must reject each of these proposals. Some commenters argue
that the intent legal standard should apply specifically to digital
discrimination of access claims that pertain to the characteristics of
particular technologies. We find no basis for adopting different legal
standards for specific technologies because the rules we adopt today
are sufficiently flexible to accommodate all technologies through which
broadband internet access service is provided. Certainly, requiring any
showing of intent would conflict with our reasoned interpretation of
the statutory text and purpose. Commenters disagree as to whether
language in recent telecommunications laws explicitly referencing
intent is relevant. Given the disagreement on the record and that
section 60506's statutory text authorizes a legal standard showing for
discriminatory effect, we are not persuaded that we should adopt an
intent-only legal standard. We likewise decline the City of Long
Beach's suggestion that we ``should seek to achieve and facilitate
equitable access[ ] rather than equal access,'' because that
interpretation would directly conflict with the Statement of Policy. We
also reject TechFreedom's proposal to give a fluid meaning to ``equal
access'' that would vary from the definition in the statute. In
particular, TechFreedom argues that the word ``access'' in section
60506(b)(1) ``has a purely technical meaning: it is the technological
`capability to transmit [. . .] and receive data' enjoyed by the
user.'' We disagree. Because ``preventing digital discrimination of
access'' is included within the broader mandate of rules to
``facilitate equal access,'' the word ``access'' in the phrase
``preventing digital discrimination of access'' incorporates the
statutory definition of ``equal access.'' Congress defined ``equal
access'' as ``the equal opportunity to subscribe'' to broadband. Thus,
``digital discrimination of access'' is best understood as referring to
discrimination in the ``opportunity to subscribe.'' For those same
reasons, we also disagree with commenters who argue that section
60506's operative text does not contain results-oriented language. As
the term ``equal access'' is expressly defined in section 60506(a)(2)
and ``access'' as used in section 60506 (b)(1) is a derivative of that
definition, we find no basis or authority to deviate from the statutory
text. Some commenters request that we give ``digital discrimination''
and ``digital discrimination of access'' the same meaning, or define
only the term ``digital discrimination'' We decline to do so. We define
and give meaning to ``digital discrimination of access'' because
Congress charged the Commission with adopting rules that ``prevent[ ]
digital discrimination of access'' in subsection (b), and defining that
term in our rules better aligns with our mandate to ``facilitate equal
access'' in this proceeding.
61. We also disagree with Lincoln Network's argument that the
statute's reference to an ``opportunity'' to subscribe requires a
disparate treatment standard. This interpretation ignores that a
consumer's ``opportunity'' to subscribe could be impeded by policies
and practices having discriminatory effects even where discriminatory
intent is absent. Consequently, limiting our definition to conduct
motivated by discriminatory intent would not fully accomplish our
mandate from Congress to facilitate equal access to broadband service
and prevent discrimination on the listed bases.
62. Interpretation of legal standards. We disagree with commenters
who argue that the terms of section 60506 do not support including
disparate impact in our definition of digital discrimination of access.
AT&T argues that the phrase ``to facilitate equal access'' speaks only
to the Commission's broader obligations to incentivize broadband
deployment and does not support using disparate impact analysis to
reach that objective. CTIA argues that Congress would not have used the
term ``facilitate'' ``if it intended for the Commission to create a
burdensome liability and enforcement regime.'' As explained herein, the
statutory text, context, and purposes of the Infrastructure Act and
section 60506 make clear that Congress intended that our rules
addressing digital discrimination of access reach not only

[[Page 4137]]

discriminatory treatment, but also policies and practices having
discriminatory effect. By commenters' own admission, there is little to
no evidence of intentional digital discrimination of access. The
Commission is obligated to adhere to Congress's mandate and adopt rules
that address the problems that do exist rather than those that do not.
63. Legislative History. Commenters argue that the sparse
legislative history of section 60506 and/or the absence of a specific
mention of disparate impact in the legislative history forecloses
inclusion of a disparate impact liability standard. We disagree. As
explained by this Report and Order, we conclude that the text, context,
and purpose of the statute clearly authorize that liability standard.
USTelecom argues, however, that Title VII of the Civil Rights Act, the
FHA, and the ADEA were all grounded in a congressional record of
``specific, historic discrimination that the statute was designed to
remedy and prevent'' and that history of discrimination in the
legislative history supported a disparate impact liability standard.
While the legislative history of section 60506 is not as robust as that
of Title VII, the ADEA, and the FHA, the Supreme Court has made clear
that even ``silence in the legislative history . . . cannot defeat the
better reading of the text and statutory context. . . . If the text is
clear, it needs no repetition in the legislative history; and if the
text is ambiguous, silence in the legislative history cannot lend any
clarity.'' As to section 60506, the text, statutory context, and
purpose is clear. The statute's text and purpose, to promote equal
access to broadband internet, fully authorize including a disparate
impact liability standard for enforcing our prohibition against digital
discrimination of access. Some commenters argue that our reading of
section 60506 is foreclosed because disparate-impact liability would
enable the Commission to regulate the rates of broadband internet
access service providers, ``impose requirements to build-out service,
and more.'' But the ``new regime of unfunded mandates and price
regulation'' that these commenters posit has no foundation in the rules
we adopt herein. We also note our agreement with the Lawyers' Committee
that the major questions doctrine has no application to our
implementation of section 60506.
64. Profitability Considerations. We additionally decline the
suggestion in the policy paper submitted by the Americans For Tax
Reform and Digital Liberty that we define digital discrimination of
access ``[as] when differences in the deployment of and/or the quality,
terms, and conditions of access to broadband services are not explained
by differences in the profitability of serving the different areas, but
instead reflect non-economic decisions to underserve protected classes
in a manner that causes adverse or negative consequences.'' This
definition would limit the Commission to considering ``profitability''
rather than ``issues of technical and economic feasibility,'' and would
appear to place primary weight on economic rather than technical
considerations. Our adopted rule properly includes both technical and
economic considerations, as explained in this Report and Order.
65. Data Access. The LGBT Technology Partnership proposes that we
adopt a definition of digital discrimination of access that encompasses
data access concerns and issues pertaining to personal data that is
processed by an algorithm. We decline to include that within the scope
of our covered services. By LGBT Technology Partnership's own
admission, section 60506 is ``not directly related to how emerging
technologies like algorithms facilitate greater precision of structural
discrimination.'' However, to the extent that such privacy- and data-
related practices can be shown to differentially affect consumer access
to broadband service on one or more of the listed bases, those
practices might fall within the scope of our definition.

Technical and Economic Feasibility

66. Section 60506 twice references technical and economic
feasibility. First, as noted above, Congress declared in section
60506(a)(1) the ``policy of the United States that, insofar as
technically and economically feasible . . . subscribers should benefit
from equal access to broadband internet access service within the
service area of a provider of such service . . . .'' And in section
60506(b), Congress directed the Commission to ``adopt final rules to
facilitate equal access to broadband internet access service, taking
into account the issues of technical and economic feasibility presented
by that objective . . . .''
67. These references are clear indicators that full achievement of
the ``equal access'' and ``equal opportunity'' goals of the statute
might, in some instances, be limited by genuine technical or economic
constraints. If the technology does not yet exist to provide a
particular broadband internet access service to a particular geographic
area, or the technology to provide the service does exist but utilizing
it to reach the area in question would be prohibitively expensive, the
failure to provide that specific service to that specific area would be
explained by genuine technical or economic constraints. In order to
account for these types of circumstances, in our December 2022 NPRM, we
proposed to define the term ``digital discrimination of access'' in
section 60506(b)(1) such that any Commission determination that
prohibited discrimination has occurred must be preceded by analysis of
whether the policy or practice in question was ``justified by genuine
issues of technical or economic feasibility.'' Having adopted a
definition of ``digital discrimination of access'' that includes a
specific carve out for conduct found to be so justified, we now adopt
definitions for the terms ``technically feasible'' and ``economically
feasible'' in the context of section 60506 and we explain how the
Commission will evaluate ``genuine issues of technical or economic
feasibility'' under our rules. We agree with commenters that our
application of these concepts is critical to the successful
implementation of section 60506.

Technical and Economic Feasibility Are Fundamental Components of
Digital Discrimination of Access

68. We first find that including the carve out for technical and
economic feasibility in our definition of ``digital discrimination of
access'' is the soundest, most straightforward, and most effective
means of satisfying our statutory responsibility to facilitate equal
access while ``taking into account the issues of technical and economic
feasibility presented by that objective.'' We disagree with those
commenters that suggest we omit the carve out language or argue that it
should only be considered as an affirmative defense if the Commission
were to create a structured complaint process to receive allegations of
digital discrimination of access. We are also not persuaded by the
argument that feasibility should not be included in our definition
because it is not included in subsections (b)(1), (d), or (e). The
proffered construction misreads subsection (b), which places
feasibility concerns squarely within each of the tasks assigned to the
Commission under that subsection. We similarly decline USTelecom and
WISPA's request that we omit the word ``genuine'' from the carve out.
The record reflects widespread concern that naked assertions of
technical or economic infeasibility could become a loophole to
complying with our digital discrimination of access rules such that
they would not actually ``facilitate equal access to broadband'' as
Congress intended. We include the word

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``genuine'' in our definition of digital discrimination of access to
convey that bare assertions and justifications created after the fact
will not suffice to prove that a business practice falls within the
carve out and is therefore exempt from liability.

Consideration of Technical and Economic Feasibility Supports a
Disparate Impact Approach

69. We further find that Congress's directive in section 60506(b)
that we take into account issues of technical and economic feasibility
supports including a disparate impact approach in our definition of
``digital discrimination of access'' and fits neatly into the framework
of disparate impact analysis. Under traditional disparate impact
analysis, once a policy or practice is shown to have a meaningful
adverse impact on a protected group, the covered entity may
affirmatively produce evidence that the challenged policy or practice
is justified by a substantial, legitimate business interest. If the
covered entity does so, it may still be liable if there is a less
discriminatory alternative to the challenged policy or practice.
Congress's directive that the Commission take into account issues of
technical and economic feasibility represents a formulation of this
traditional test as tailored to the specific context of section 60506
and the issues it aims to address. As further discussed above in the
disparate impact paragraphs and below in the enforcement-related
paragraphs, a covered entity in a Commission investigation under
section 60506 will likewise have the opportunity to show that the
policy or practice under scrutiny is justified by genuine technical or
economic constraints. And as part of the Commission's consideration of
these issues, a covered entity will be allowed to present for the
Commission's review any legitimate business impediment to the use of
less discriminatory alternatives. We find that the feasibility
provision is largely superfluous to intentional discrimination of
access, and that when Congress directed the Commission to be mindful of
technical and economic considerations, its objective was to ensure that
covered entities in any investigation the Commission conducts under our
rules to prevent digital discrimination of access would have an
opportunity to explain and justify their conduct.
70. We disagree with commenters asserting that the technical and
economic feasibility language in section 60506 does not support
inclusion of disparate impact in our definition of digital
discrimination of access. These commenters fail to explain why
consideration of technical and economic feasibility makes sense only in
the context of disparate treatment claims or why it makes more sense in
the context of disparate treatment claims than in the context of
disparate impact claims.
71. We are also not persuaded by AT&T's argument that Congress's
contemplation of technical and economic justifications for challenged
practices does not support an inference that Congress intended to
capture cases of disparate impact. AT&T argues that section 60506's
feasibility provision has ``independent significance even if Congress
intended the Commission to address only intentional discrimination''
because ``income levels are routinely used [ ] as a basis for business
decisions in a wide variety of [] industries.'' But as the Lawyers'
Committee for Civil Rights Under Law notes, ``there is still no
scenario in which intentional discrimination on the basis of income
level--or any other protected characteristic--could ever be justified
by technical feasibility.'' We find that AT&T's reading ``is thus at
odds with one of the most basic interpretive canons, that `[a] statute
should be construed so that effect is given to all its provisions, so
that no part will be inoperative or superfluous, void or insignificant
. . . .' '' And, as we have stated elsewhere, there is little or no
evidence in the legislative history or in the record of this proceeding
that intentional discrimination on any basis by industry participants
contributes meaningfully to the digital divide in this country. AT&T
also argues that the feasibility provision does not support the
existence of disparate-impact liability under section 60506 because it
``applies to the broader mandate to the Commission to `facilitate equal
access' and is not restricted only to the narrower included
`discrimination' provision.'' In response, Lawyers' Committee for Civil
Rights Under Law argues that, ``the feasibility qualifier must also
apply to [(b)(1)] providing specific instructions on how the Commission
needs to execute that preamble. AT&T does not explain how the
`preventing discrimination' provision--if interpreted to cover only
intentional discrimination--would `tak[e] into account technical and
economic feasibility.' ''

Definitions of ``Technically Feasible'' and ``Economically Feasible''

72. As discussed in more detail below, we adopt clear definitions
of the terms ``technically feasible'' and ``economically feasible''
based on the record in this proceeding and Commission precedent; and,
we explain how the Commission will assess issues of technical or
economic feasibility under section 60506(b). We interpret section
60506(b)'s reference to ``issues of technical and economic
feasibility'' to mean issues of ``technical feasibility'' on the one
hand, and issues of ``economic feasibility'' on the other. We
understand subsection (a)'s use of ``technically and economically
feasible'' and subsection (b)'s use of ``technical and economic
feasibility'' to reference the same concepts. We define a ``technically
feasible'' policy or practice to mean one that is ``reasonably
achievable as evidenced by prior success by covered entities under
similar circumstances or demonstrated technological advances clearly
indicating that the policy or practice in question may reasonably be
adopted, implemented, and utilized.'' Similarly, we define an
``economically feasible'' policy or practice to mean a policy or
practice that is ``reasonably achievable as evidenced by prior success
by covered entities under similar circumstances or demonstrated new
economic conditions clearly indicating that the policy or practice in
question may reasonably be adopted, implemented, and utilized.''
73. In the NPRM, we sought comment on how to define and incorporate
into our rules the concepts of technical and economic feasibility as
they are used in section 60506. We asked detailed questions on the
merits and mechanisms of adopting various approaches, including safe
harbors, case-by-case analyses, or a combination thereof. Because
neither the statute nor the legislative history contain definitions of
these terms, the Commission must adopt an interpretation that, taken in
the context of the statute as a whole, best effectuates the goal of
section 60506. Based on this touchstone, the record we received in
response to the NPRM, and Commission precedent, we adopt definitions of
these terms that balance the goal of facilitating equal access to
broadband internet access services with the technical and economic
challenges facing covered entities as they work to expand and improve
their networks in unserved and underserved communities.
74. Commission and Legal Precedent. We adopt definitions of
``technical feasibility'' and ``economic feasibility'' that are
consistent with the Commission's precedent. The Commission has
previously interpreted, individually or as a pair, the concepts of
technical and economic feasibility in connection to its implementation
of various statutes. While the

[[Page 4139]]

Commission's previous interpretations and applications of these terms
have varied by context, these instances provide guidance for our
implementation of section 60506. For example, the Commission has
previously made determinations as to whether an activity was
technically and economically feasible based on record support or lack
thereof, adopted a rebuttable presumption of technical feasibility
based on prior findings by a state commission, adopted a list of
activity that is technically feasible, and established a process to
analyze feasibility issues on a case-by-case basis. Furthermore, the
Commission has closely scrutinized technical and economic feasibility
issues, relied on industry past practice and success as key indicators
of technical feasibility, and placed the burden on the entity asserting
technical or economic infeasibility to prove the claim to the
Commission's satisfaction.
75. Judicial case law also informs our definitions of technical and
economic feasibility for section 60506 purposes. In 2002, the Supreme
Court decided a challenge to the Commission's implementation of section
251 of the Communications Act that involved the Commission's
interpretations of the statutory phrase ``technically feasible.''
Petitioners in that case argued that Commission rules requiring
incumbent carriers to combine unbundled network elements where
``technically feasible'' was unreasonable and in conflict with the
statutory language. In upholding the Commission's rules, the Court
rejected the petitioners' argument that the rules imposed no reasonable
limits on the requirement to combine network elements. Rather, the
Court held that the Commission's definition of ``technically feasible''
provided real limits on what would be required of incumbent local
exchange carriers, concluding that ``[i]f `technically feasible' meant
what is merely possible, it would have been no limitation at all.'' The
Court's ruling, albeit in a different context, instructs that we should
be skeptical of arguments suggesting that technical and economic
feasibility are concepts operating at the margins of what is technical
and economically convenient on the one hand, or what is technically and
economically possible on the other.
76. Technical Feasibility. Taking into account long-standing
Commission precedent, we define a ``technically feasible'' policy or
practice as one that is ``reasonably achievable as evidenced by prior
success by covered entities under similar circumstances or demonstrated
technological advances clearly indicating that the policy or practice
in question may reasonably be adopted, implemented, and utilized.'' We
use the Commission's definition of ``technically feasible'' from Sec.
54.5 of the Commission's rules as a starting point. When implementing
the interconnection provisions of the 1996 Act, the Commission
similarly leveraged prior successful practice to identify and define
technical feasibility. In that context, the Commission adopted rules
that established previous points of interconnection or methods of
access to unbundled network elements as ``substantial evidence'' that
analogous points or methods are technically feasible. In the context of
section 60506, a policy or practice will be considered technically
feasible if it is reasonably achievable, as evidenced by prior success
under similar circumstances. Moreover, because technological advances
might provide ready means of achieving successful outcomes that have
not occurred in the past, we will allow for the possibility that
technical feasibility may be shown by ``demonstrated technological
advances clearly indicating the reasonable achievability'' of the
policy or practice in question.
77. Economic Feasibility. We define an ``economically feasible''
policy or practice to mean one that is ``reasonably achievable as
evidenced by prior success by covered entities under similar
circumstances or demonstrated new economic conditions clearly
indicating that the policy or practice in question may reasonably be
adopted, implemented, and utilized.'' We again use the language of the
Commission's definition of ``technically feasible'' in Sec. 54.5 as a
baseline because anchoring economic feasibility in past industry
practice will provide guidance to allow all interested stakeholders to
gauge what is or is not economically feasible. Factors for analyzing
economic feasibility of a policy or practice include, but are not
limited to, projected income, projected expenses, net income, expected
return on investment, competition, cash flow, market trends, and
working capital requirements, and the standards under which such
calculations are determined. A policy or practice will be considered
economically feasible if relevant economic variables fall within
acceptable ranges based on past industry practice. Determining economic
feasibility thus requires a comparative analysis that accounts for past
and present industry practices and new economic conditions that might,
in some circumstances, require variances from such historical ranges.
78. Our definitions of ``technically feasible'' and ``economically
feasible'' join previous Commission interpretations of these terms with
several important attributes specific to the present context. As a
baseline, we interpret the categories of ``technical'' and ``economic''
feasibility broadly to encompass any legitimate business impediment to
achievement of equal access. In addition to using prior successful
policies and practices as the foundation for determining what is
technically or economically feasible, we design our definitions to
flexibly encompass future policies and practices and the inherent
differences in the operation of covered entities of varying sizes and
technologies. We also take a measured approach that considers the real
burdens industry participants face in deploying and providing service,
while also ensuring that we do not create ``a loophole that renders the
rules meaningless.'' And lastly, we make clear that issues of technical
and economic feasibility are related but ultimately distinct from each
other.
79. We take a measured approach to defining these terms, providing
guideposts for understanding what is technically or economically
feasible today and what could be feasible in the future. We emphasize
that we do not define technical and economic feasibility as simple
deference to a single entity's judgment, as many industry commenters
argue we should. We agree with those commenters asserting that Congress
did not adopt section 60506 to enshrine the current industry status
quo. When considering what is technically or economically feasible, we
expect covered entities to consider more than just what is the most
convenient. For example, the Commission found in other contexts that
the novelty or costliness of a particular business path does not, in
itself, answer the question of whether that path is feasible, nor does
the difficulty of a change in product design. At the same time, we do
not create an ``impossibility'' standard as some commenters have warned
against, which would define any action as technically or economically
feasible unless it was impossible. Like the Commission's approach to
defining ``technically feasible'' in the First Local Competition Order,
61 FR 45476, the definitions we adopt today include reasonable
limitations on what is considered technically or economically feasible
and do not represent any attempt to ``control'' covered entities'
investment decisions. Complying with the rules we adopt today does not

[[Page 4140]]

displace the ability of industry participants to make ``practical
business choices and profit-related decisions.'' Rather, they are
designed to ensure that industry participants incorporate into their
decision-making processes consideration of the potential discriminatory
impacts of their policies and practices, and that they seek to minimize
any such discriminatory impacts.
80. We acknowledge that the technical and economic challenges that
covered entities face in deploying and serving rural, Tribal, and urban
areas can vary greatly. At the same time, we agree with Public
Knowledge et al. that ``broadband deployment may still be feasible in
areas even where there are no similar circumstances to use as a
benchmark,'' and if feasibility ``was limited to circumstances where
there is a direct analog, certain areas that have gone long underserved
due to unique characteristics might continue to fall through the
cracks.'' Thus, we intend for our approach to technical and economic
feasibility to encompass new, but analogous, policies and practices to
account for variations among covered entity types and industry
advancement. The Commission has previously crafted a definition of
technical feasibility to outlast current technological development in
the context of certain unbundling obligations for incumbent local
exchange providers. Under those rules, the Commission adopted a
rebuttable presumption that once one state had determined an approach
was technically feasible, the same approach would be presumed to be
technically feasible for incumbent local exchange carriers in every
state. We decline at this time to adopt a presumption of feasibility,
and therefore do not take the precise approach taken by the Commission
in 1999. But we do find that we are similarly defining our concepts of
technical and economic feasibility to allow for consideration of
technical, infrastructure, economic, or other developments in the area
under review. We also decline at this time to adopt any explicitly
different standard for evaluating claims of economic feasibility for
existing service offerings versus new deployments.
81. While our definitions of technical and economic feasibility
mirror each other, and in certain respects might be related, we
consider each to be a distinct concept. The Commission has taken this
approach previously, and commenters urge us to adopt the same approach
here. We agree that a policy or practice may be technically feasible
but not economically feasible, and vice versa.
82. Standard. At this time, we find that a case-by-case approach
provides the Commission needed flexibility to evaluate issues of
technical and economic feasibility. In the NPRM, the Commission sought
comment on whether we should assess infeasibility claims on a case-by-
case basis, adopt safe harbors, or take a combination of the two. In
response, commenters voiced support for each of these approaches, as
well as urging the Commission to adopt blanket presumptions of
feasibility as opposed to a case-by-case review. We understand the
arguments in favor of the adoption of one or more safe harbors to
promote regulatory certainty and reduce the regulatory burden on
providers, as well as arguments favoring a list of per se feasible
methods of providing broadband internet access service or presumptions
of feasibility in all or certain instances to increase compliance. The
Commission has in the past adopted rules taking each of these
approaches. Based on the record and information we have today, however,
we find it is premature to incorporate safe harbors or feasibility
presumptions into our definitions of technical and economic
feasibility. In this connection, we defer any further decisions
regarding the adoption of one or more safe harbors until we have
developed experience on how they would operate in practice. As
explained in more detail below, we do adopt a presumption of compliance
from enforcement action that we find will lower the compliance burden
for covered entities without compromising consumer protection. Thus, at
this juncture, we will evaluate issues of technical or economic
feasibility on a case-by-case basis so as to deter violations of our
rules while allowing those issues to be fully explained to and
considered by the Commission.
83. We also design our case-by-case approach to flexibly account
for the differences between covered entities of varying sizes,
technologies, and circumstances. We agree with those commenters, like
Competitive Carriers Association, who encourage us to take a ``a
practical and flexible approach that encourages innovation and
investment to close the digital divide.'' Therefore, we decline at this
time to adopt distinct standards or definitions for different types of
covered entities. We find that our adopted definitions will allow the
Commission to consider what is reasonably achievable for the particular
entity under investigation. Moreover, as the Commission has found
previously, legal or regulatory constraints can also be considered when
determining technical feasibility.
84. Furthermore, we find that when the Commission conducts an
investigation under the enforcement process described below, the entity
under investigation will have the burden of proving to the Commission
that the policy or practice in question is justified by genuine issues
of technical or economic feasibility. The Commission has commonly taken
this approach in previous approaches analyzing ``technical
feasibility,'' as well as regarding satellite carriers claiming
``technical or economic infeasibility'' in the market modification
context. In the context of section 60506, we find that assigning this
burden to the entity under investigation is inherent in the structure
of our definition of ``digital discrimination of access.'' We find, as
the Commission has previously, that as a practical matter, it is the
entity providing the justifications for its policies and practices that
has access to the necessary information to support their factual
assertions. And, as we have previously stated, those justifications
will usually involve arguments and evidence that technical or economic
constraints limit the availability of less discriminatory alternatives.
85. Finally, we emphasize that the Commission will closely
scrutinize claims of technical or economic feasibility through review
of documentation submitted by the entity under investigation, publicly
available reports and other information, interviews and depositions of
relevant personnel, and other available information. Under the
Commission's market modification rules, the Commission created a
process for satellite carriers to claim an inability to broadcast in
certain locations due to technical and economic feasibility. In
practice, the Commission's Media Bureau closely scrutinizes satellite
carriers' infeasibility claims under Sec. 76.59 of the Commission's
rules. Similarly, in the context of our section 60506 rules, the
Commission will not defer to the entity seeking to justify policies and
practices alleged to be discriminatory. We will require proof by a
preponderance of the evidence that the policy or practice in question
is justified by genuine issues of technical or economic feasibility.
Stated differently, a covered entity can demonstrate that a policy or
practice is justified by genuine issues of technical or economic
feasibility by showing that less discriminatory alternatives are not
reasonably available and achievable because of genuine technical or
economic constraints.

[[Page 4141]]

Prohibition of Digital Discrimination of Access

86. Today we adopt a rule broadly and directly prohibiting
``digital discrimination of access'' as we have now defined it. Our
prohibition thus forbids both intentionally discriminatory conduct
(that is, applies a disparate treatment standard) as well as conduct
that produces discriminatory effects (that is, applies a disparate
impact standard). This approach does not supplant, but rather
supplements the Commission's past and ongoing efforts to facilitate
broadband access through affirmative approaches.
87. At this time, we find that this broad prohibition and the
enforcement mechanisms described below are the most cost-effective
means to accomplish Congress's stated objectives in section 60506.
Prohibiting discrimination in access to broadband service is necessary
to facilitate equal access to broadband and prevent digital
discrimination of access, and both of these goals are required by the
statute. In that same vein, unequal access to broadband service imposes
significant costs on unserved and underserved communities, and on the
Nation as a whole. The voluntary informal complaint process described
below is a low-cost approach toward meeting the statutory requirement
that leverages existing Commission systems. Similarly, enforcement of
the broad prohibition through self-initiated investigations affords the
Commission ample flexibility without substantially overhauling the
enforcement process. Such low-cost approaches will allow the Commission
to enforce the statute in a cost-effective manner, while bringing the
undeniable benefits of expanded broadband access. Lastly, our rules are
designed to minimize the compliance- and other-related costs they will
likely impose on broadband providers and the other entities our
prohibition covers.
88. Fundamentally, a policy or practice will violate our
prohibition on digital discrimination of access if it discriminates,
either by intent or in effect, based on one of section 60506's listed
characteristics. In determining whether a policy or practice violates
the prohibition we adopt today, the Commission will look first to
whether the policy or practice in question differentially affects
access to broadband service or is intended to do so. If that question
is answered in the affirmative, the Commission will review any issues
of technical or economic feasibility that may compel use of the
challenged policy or practice rather than a less discriminatory policy
or practice. In other words, the rules we adopt today require
assessment in the first instance of whether a policy or practice is
discriminatory; and if so, whether there were reasonably available and
achievable alternatives (i.e., alternatives that were technically and
economically feasible) that would have been less discriminatory.
89. We disagree with commenters asserting that section 60506 does
not authorize a prohibition on private conduct. These commenters
variously claim that section 60506, as part of the Infrastructure Act,
only obligates the Commission to undertake affirmative-based efforts,
e.g., by funding the expansion of covered entities' broadband
footprints or by promoting digital skill building and adoption of
broadband by consumers through other initiatives outside this
proceeding. Congress did not specify the means by which the Commission
should fulfill its obligations under section 60506. As explained above,
we conclude that the statutory language authorizes the Commission to
address and combat both intentional discrimination and disparate
impacts. The U.S. Chamber of Commerce contends that the Commission's
adoption of ``new civil-rights legislation wholesale, including
authorization of unfunded deployment mandates or rate regulation,''
would constitute a violation of the nondelegation doctrine. However,
our prohibition today--a narrower action than that complained about--
simply fulfills the task Congress, using clear language directing the
Commission to prevent digital discrimination of access, gave us to
perform. Adoption of these rules does not require an impermissible
assumption of Congress's legislative powers; it only exercises the
authority the Infrastructure Act conferred under the guidance provided
in that statute. A prohibition of the kind we adopt today proves
necessary to effectuate this charge. It does so by deterring
discrimination in the first instance (thereby ``preventing'' its
occurrence) while also enabling the Commission to target behaviors that
affirmative-based approaches alone may be insufficient to change.
90. We also disagree with commenters arguing that a broad
prohibition against digital discrimination of access will fundamentally
transform the current regulatory landscape. As we explain below, our
approach, which implements the directive in section 60506, involves
self-initiated investigations. Such investigations may be premised on
information submitted by the public, communications with state, local,
or Tribal officials, or through outreach via other channels. However,
we note that a complaint or allegation alone does not necessarily
warrant an enforcement response from the Commission, thus ameliorating
any such concerns raised by some commenters. Our prohibition--
consistent with the Commission's nondiscrimination requirements
associated with its ongoing efforts to promote broadband access--and
the enforcement methods we outline below represent an important, yet
incremental, step in furthering the Commission's and Congress's digital
equity goals.

Scope of Prohibition

Covered Entities
91. We find that the digital discrimination of access rules we
adopt today shall apply to entities that provide, facilitate and affect
consumer access to broadband internet service. Covered entities
include, but are not limited to, broadband providers as defined in rule
54.1600(b), contractors retained by, or entities working through
partnership agreements or other business arrangements with, broadband
internet access service providers; entities facilitating or involved in
the provision of broadband internet access service; entities
maintaining and upgrading network infrastructure; and entities that
otherwise affect consumer access to broadband internet access service
as further discussed below. In the Notice of Inquiry, we sought comment
on whose ``policies or practices . . . that differentially impact
consumers' access to broadband internet access service'' should be
covered by our definition of digital discrimination of access. We also
sought comment on whether we should understand digital discrimination
of access to include policies or practices by a broader range of
entities than broadband providers. To achieve the policy that
``subscribers should benefit from equal access to broadband internet
access service,'' and fulfill Congress's directive that the Commission
``facilitate equal access to broadband internet access service,'' we
have determined that the rules must include not only broadband
providers, but also other entities that provide services that
facilitate and affect consumer access. The record supports this
determination. We thus find that there are a range of entities that
facilitate and can affect consumer access to broadband. Therefore, we
find that our rules and, in particular, our prohibition against digital
discrimination of access, extend not only to broadband providers, but
also to entities that provide services that facilitate and meaningfully
affect

[[Page 4142]]

consumer access to broadband internet access service.
92. Numerous commenters agree that broadband providers are not the
only entities that should be subject to these rules. To be sure, other
platforms and organizations affect consumer access to broadband
internet access service. For example, Lawyers' Committee for Civil
Rights Under Law argues that section 60506 prohibits interference with
equal access to broadband by any type of entity because guaranteeing
equal access to broadband for all individuals requires applying the
statute to any entity that can affect the ability of an individual to
access the service, not just those entities that provide connectivity.
And as TURN states, as technology evolves, the Commission's rules must
be able to address future technological evolutions that may affect or
interfere with broadband internet access. Lastly, National Digital
Inclusion Alliance and Common Sense Media urge us to apply our rules to
any entity--subsidiary, parent company, or other--that provides
broadband internet access service.
93. We disagree with arguments that our authority under 60506(b)
extends only to providers of broadband internet access service because
``only a service provider, and not some other class of entity, can
`offer' a `service'.'' As explained below, we believe the definition of
``equal access'' in section 60506(a), which applies both to section
60506(b)'s mandate that we facilitate equal access and that we prevent
digital discrimination of access, focuses on consumers' opportunity to
receive and effectively utilize an offered service. Conduct by entities
other than broadband providers might impede equal access to broadband
internet access service on the bases specified in the statute. For
example, the Lawyers' Committee for Civil Rights Under Law provides
several examples of how entities may impact consumer access based on
protected characteristics, including a landlord restricting broadband
options within a building even if multiple providers are available.
While we reach no conclusion whether this, or other specific examples
in the record would be covered by our rules, we are persuaded that
there could be situations--now or in the future--in which non-providers
could impede equal access to broadband internet access service based on
the listed characteristics. Moreover, while we are not explicitly
tasked with regulating entities outside the communications industry,
section 60506 does require us to facilitate equal access to broadband
by ``preventing'' and identifying steps necessary to ``eliminate''
digital discrimination of access. Thus, to the extent that entities
outside the communications industry provide services that facilitate
and affect consumer access to broadband, they may be in violation of
our rules if their policies and practices impede equal access to
broadband internet access service as specified in the rules. To the
extent that such entities have policies or practices that
differentially impact consumers' access to broadband internet access
service, we will consider, among other things, the closeness of the
relationship between that entity's policies and practices and the
provision of broadband service. By way of example, the U.S. Supreme
Court long ago upheld the Commission's exercise of jurisdiction over
prohibited surcharges imposed by hotels and apartment owners based on
arrangements they made with the telephone company, and where the
practice was ``so identified'' with the communications service that it
was brought within the prohibition. We also note that section 411(a)
provides as follows: ``In any proceeding for the enforcement of the
provisions of this Act, . . . it shall be lawful to include as parties,
in addition to the carrier, all persons interested in or affected by
the charge, regulation, or practices under consideration, and
inquiries, investigations, orders, and decrees may be made with
reference to and against such additional parties in the same manner, to
the same extent, and subject to the same provisions as are or shall be
authorized by law with respect to carriers.''
94. Lastly, we acknowledge that commenters disagree on whether to
include infrastructure owners and local governments within the scope of
our rules, but we decline to expressly carve out specified entities
from the scope of coverage at this time. City of Philadelphia, City of
Oklahoma, City of Minneapolis, etc. (Local Governments) argue that not
considering infrastructure owners as providers of broadband services
subject to our digital discrimination of access rules would allow
broadband providers to outsource their deployments to third parties to
avoid our equal access rules. WIA disagrees with Local Governments in
their assertion that infrastructure owners should be covered by the
rules on digital discrimination of access, arguing that doing so would
unlawfully expand the Commission's jurisdiction. Additionally, Local
Governments request that we not categorize local governments as
``covered entities'' based on their roles as right-of-way managers or
franchise regulators. While there may be tension in the record as to
the role these entities play, our rule is clear that any entity that
meaningfully affects access to broadband internet service is subject to
our digital discrimination of access rules.
Covered Consumers
95. The definition of digital discrimination of access adopted
today includes ``policies and practices . . . that differentially
impact consumers' access to broadband internet access service . . . or
are intended to have such differential impact.'' In the NPRM, we sought
comment on the meaning of ``consumers'' and who would fall within the
scope of this term. Commenters to the NPRM proposed various
definitions. We today define ``consumers'' in this context to mean both
current and potential subscribers, which includes individual persons,
groups of persons, individual organizations, and groups of
organizations having the capacity to subscribe to and receive broadband
internet access service. We define ``subscriber'' as a current
recipient of broadband internet access service as defined in Sec.
8.1(b) of the Commission's rules.
96. Consistent with the purposes of section 60506, the term
``consumers'' as used in our adopted definition of digital
discrimination of access comprises current subscribers and prospective
subscribers of broadband internet access service. Our rules do not
cover other types of broadband service, such as business data services
or enterprise customer purchases. And, under this rule, individual or
groups of persons, organizations, or businesses fall within the scope
of the term ``consumer.'' Covering both current and prospective
subscribers is supported for several reasons. First, section 60506's
Statement of Policy directs the Commission to ``ensure that all people
of the United States benefit from access to broadband.'' As the
American Library Association observes, ``[t]here are `people of the
United States' who are not subscribers because they experience digital
discrimination that precludes them from becoming subscribers.'' The
California Public Utilities Commission further observes that ``one
cannot count as a subscriber if broadband service is not offered to
them in the first place.'' We agree. We would not be fulfilling our
statutory mandate to facilitate equal access to broadband internet
access service if we failed to include unenrolled or prospective
subscribers as ``consumers'' under our rules. Second, limiting
``consumers'' to existing subscribers would do nothing to expand

[[Page 4143]]

broadband availability in unserved communities. By way of example, the
Japanese American Citizens League expressed that a large number of
small businesses in the historic San Francisco Japantown business
district remain unconnected to the internet with reliable broadband
access. If high-speed broadband service were unavailable in a
particular geographic area because of discriminatory conduct, by
definition there could be no subscribers in that area. And if the
Commission's rules were limited to ensuring equal access by those
already subscribing to a service, there would be nothing the Commission
could do to investigate the reasons for this lack of access on the part
of non-subscribers. Under the argument pressed by certain commenters,
the Commission's rules would instead be confined to leveling service
quality, pricing and other terms of service as between underserved
communities and better-served communities. Such a limitation is not
consistent with section 60506's overarching purpose to ``ensure that
all people of the United States benefit from equal access to broadband
internet access service.''
97. We therefore reject commenters' arguments that the
``consumers'' covered by our rules should be limited to subscribers. We
disagree with NTCA's argument that the Commission's purview is limited
to ``subscribers,'' referring to ``those who purchase service from the
provider.'' The Commission cannot fulfill Congress's directive to
facilitate equal access to broadband internet access service without
being able to address the issues that limit the opportunity to
subscribe in the first instance. We firmly believe Congress intended
the rules implementing section 60506(b) to facilitate the expansion of
access of broadband service by eliminating discrimination, not just the
leveling of service quality and terms. Therefore, our rules for digital
discrimination of access cover all consumers, including both current
and prospective subscribers.
98. We also find that, for purposes of our definition of ``digital
discrimination of access,'' the term ``consumers'' includes not only
individuals, but also groups of persons, organizations, and businesses.
We agree with National Digital Inclusion Alliance and Common Sense
Media that digital discrimination of access can manifest differently
when it affects a single person, as compared to a group of persons
within a community, and either type of discrimination can violate the
rules.
99. In the NPRM, we sought comment on whether there are practical
or administrative costs and benefits to the Commission, industry and
those who might suffer discrimination if both persons and organized
groups of persons (such as community associations) are covered by our
definition. As supported by the comments, we find no significant
additional costs in defining ``consumers'' to include persons and
organized groups of persons, as well as groups of organizations. As
discussed in the informal complaints section below, we recognize that
community associations and other organizations might well submit the
majority of informal complaints relating to digital discrimination of
access, and we have no concerns on that score.
Listed Characteristics
100. Congress identified six characteristics as bases for digital
discrimination of access--income level, race, ethnicity, color,
religion, and national origin. In the NPRM, we sought comment on
whether we should expand our definition to 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. While some commenters argue we should expand the listed
characteristics, others disagree.
101. Based on the language of the statute, we do not add to the
listed characteristics of persons protected under the rules that serve
as the bases for considering digital discrimination of access. Even
though the statute affords protection against digital discrimination of
access based on national origin, some commenters urge us to incorporate
``limited-English proficiency'' (LEP) as an express listed
characteristic under the rules. It is well established, however, that
discriminating against persons based on their limited-English
proficiency can constitute a form of national origin discrimination.
Federal agencies have interpreted Title VI's prohibition against
national origin discrimination to require that LEP individuals have
meaningful access to federally funded programs and activities. This
same interpretation as to national origin discrimination has been given
under the Fair Housing Act. Congress must be presumed to have
deliberately limited the list of protected characteristics in section
60506(b) to income level, race, ethnicity, color, religion, and
national origin. While we acknowledge the strong record support for
extending the rule to cover persons with other characteristics, federal
antidiscrimination laws often vary in terms of the protected classes
they cover. For example, many commenters discussed the challenges faced
by people with disabilities in securing access to high quality
broadband services. For instance, Title VII of the Civil Rights Act
protects against discrimination based on ``race, color, religion, sex,
or national origin,'' whereas the FHA goes further and includes
additional protections for ``disability and familial status.'' Here,
Congress chose the six listed, protected characteristics and not
others. This does not mean that the legitimate concerns of persons with
these additional characteristics is to be minimized. To the contrary,
the record is replete with evidence that classes beyond the six listed
groups face varying broadband-related challenges. We have no discretion
to overrule the choice made by Congress in this regard, at least as it
applies to our rules implementing section 60506(b). Under section
60506(c)(3), the Commission and the Attorney General can seek to
prohibit ``deployment discrimination'' based on factors other than
those listed in that section, based on the record developed in this
proceeding. Further, even if not covered by Section 60506(b), people
with disabilities may avail themselves of other federal laws governing
digital accessibility, such as the Americans with Disabilities Act of
1990 (ADA), the Rehabilitation Act of 1973, and the Twenty-First
Century Communications and Video Accessibility Act of 2010 (CVAA).
102. Our work towards ensuring broadband access does not begin or
end with this statute. We will continue to address access to broadband
under other sources of authority. For example, we have established
accessibility protections under other statutory grants that govern the
ACP, ECF, and EBB programs. The ACP supports the purchase of broadband
access services and connected devices, such as tablets and laptops, and
requires them to be accessible. In the Emergency Connectivity Fund
Report and Order, the Commission established an expectation that
connected laptops be accessible to students, school staff, and library
patrons with disabilities to address their remote learning needs. For
these connected laptops, school districts have purchased accessibility
features such as software providing screen magnification, screen
reading functionalities, captioning services, and touchscreens for
students with significant fine motor skills difficulties. As we move
forward, we will continue to use all the tools at our disposal to ease
the digital accessibility divide.

[[Page 4144]]

Covered Services
103. For purposes of these rules, we apply the same definition of
``broadband internet access service'' that appears in Sec. 8.1(b) of
the Commission's rules. That definition states: The term ``broadband
internet access service'' means ``a mass-market retail service by wire
or radio that provides the capability to transmit data to and receive
data from all or substantially all internet endpoints, including any
capabilities that are incidental to and enable the operation of the
communications service, but excluding dial-up internet access service.
This term also encompasses any service that the Commission finds to be
providing a functional equivalent of the service described in the
previous sentence or that is used to evade the protections set forth in
this part.'' We use the terms ``broadband,'' ``covered services,'' and
``broadband internet access service'' interchangeably.
104. In the NPRM, we sought comment on the scope of services that
should be covered by our rules. We also specifically sought comment on
whether the above-referenced definition of ``broadband internet access
service'' fully captures the scope of technologies relevant to digital
discrimination of access. In determining the scope of our definition of
digital discrimination of access, we find that the term ``broadband
internet access service'' in that definition has the same meaning given
the term in Sec. 8.1(b), and encompasses the range of services that
may give rise to digital discrimination of access. In the proposed
definition of ``digital discrimination of access,'' the Commission
sought comment on whether ``covered services'' should be limited to
broadband internet access service. No commenter opposed using this
definition of ``broadband internet access service.'' We find that the
straightforward and well-established definition best delineates the
scope of covered services under the rules we adopt today.
105. Moreover, the record reflects strong support for adopting
Sec. 8.1(b)'s definition. As Local Governments notes, including all
types of broadband providers is consistent with the Restoring Internet
Freedom Order, 80 FR 19737, which found that the term ``broadband
internet access service'' includes ``services provided over any
technology platform, including but not limited to wire, terrestrial
wireless (including fixed and mobile wireless services using licensed
or unlicensed spectrum), and satellite.'' Providers can use various
forms of technology to provision broadband to consumers, including
digital subscriber line (DSL), cable modem, fiber, fixed and mobile
wireless, and satellite. By incorporating the established meaning of
``broadband internet access service'' in the definition of ``digital
discrimination of access,'' we ensure that our rules accurately reflect
the scope of services that may give rise to instances of digital
discrimination of access and thus fulfill the Congressional direction
in section 60506 to facilitate equal access to broadband internet
access service and prevent digital discrimination of access.
Covered Elements of Service
106. The rules we adopt today apply to any lack of comparability in
service quality, as indicated by the metrics specifically listed in the
statutory definition of ``equal access'' as well as any ``other quality
of service metrics in a given area,'' and to any lack of comparability
in terms and conditions of service, including but not limited to price.
We find this scope of coverage to be consistent with section 60506's
statutory text and necessary to effectuate its purpose.
107. In broadly applying our rules to all relevant service quality
metrics and all terms and conditions of service, we note that Congress
directed the Commission to facilitate equal access to the entirety of
broadband internet service, not to certain elements of such service.
Congress defined ``equal access'' in section 60506's statement of
policy to mean that consumers have ``the equal opportunity to
subscribe'' to broadband internet access service with ``comparable
speeds, capacities, latency, and other quality of service metrics in a
given area, for comparable terms and conditions[.]'' As many commenters
explain, the inclusion of ``other quality of service metrics'' and
``comparable terms and conditions'' in the definition of ``equal
access'' reflects Congressional intent and authorization that the
Commission's digital discrimination of access rules cover any aspect of
broadband internet access service that impedes, impairs or denies
``equal access'' to that service.
108. The aspects of service that could affect a consumers' ability
to receive and effectively utilize broadband internet access service
include, but are not limited to, deployment, technical terms and
conditions of service, such as policies and practices regarding speeds,
capacities, latency, data caps; network infrastructure deployment,
network reliability, network upgrades, network maintenance, customer-
premises equipment, and installation; as well as non-technical terms
and conditions of service, such as policies and practices regarding
contractual terms generally, mandatory arbitration clauses, pricing,
deposits, discounts, customer service, language options, credit checks,
marketing or advertising, contract renewal, upgrades, account
termination, transfers to another covered entity, and service
suspension. Moreover, in order to fully effectuate the goals of section
60506, we find that our rules must cover both actions and omissions,
whether recurring or a single instance, concerning these aspects of
service, that defeat comparability of service quality, terms, and
conditions.
109. We find that adopting a broad definition of covered elements
of service is both consistent with the language of section 60506 and
necessary to fulfill its purpose. First, by including the catch-all
language ``and other quality of service metrics in a given area,''
Congress expressly authorized the Commission to supplement the listed
elements of service to include all measurable quality-of-service
elements that could affect consumers' ability to receive and
effectively utilize broadband internet access service. As the record
reflects that policies and practices relating to an array of technical
and non-technical aspects of service can affect a consumer's ability to
access broadband, a definition with a narrower scope could lead to the
Commission's rules failing to cover some aspects of service that result
in digital discrimination of access. Consequently, we agree with
Lawyers' Committee for Civil Rights Under Law that adopting a flexible
approach is necessary ``to capture the long tail of intangible
variables that are difficult to list exhaustively and are subject to
change.'' Second, our definition provides us with the advantage of
flexibility, which will ``future proof'' our rules as technologies,
policies, and practices change over time. For these reasons, we reject
the argument that by including certain quality of service metrics in
60506(a)(2), Congress foreclosed consideration of other measurable
elements of service quality in evaluating whether equal access has been
achieved.
110. We reject arguments that we should limit the scope of covered
elements of service to deployment practices or technical terms of
service, or that we exclude certain terms, such as pricing. We are
persuaded that Congress intended for the Commission's rules
implementing section 60506(b) to cover more than deployment practices.
As noted above, Congress directed the Commission in section 60506(b) to
adopt rules to facilitate equal access to broadband internet access
service,

[[Page 4145]]

including ``preventing digital discrimination of access'' and
identifying necessary steps for the elimination of such discrimination.
By contrast, in section 60506(c), Congress directed the Commission and
the Attorney General to ensure that federal policies prohibit
``deployment discrimination'' based on the income level of an area, the
predominant race or ethnicity of an area, or other factors the
Commission determines to be relevant based on the record in this
proceeding. Had Congress wished to limit the scope of section 60506(b)
to ``deployment discrimination,'' it would have done so explicitly. The
use of two different terms (``digital discrimination of access'' and
``deployment discrimination'') in adjacent subsections of a one-page
section of the statute clearly indicates that Congress intended the two
terms to have different meanings. Further, Congress was well aware that
factors other than initial deployment of the necessary network
infrastructure, such as network upgrades and maintenance at an absolute
minimum, affect the ability of consumers to effectively utilize
broadband internet access service. Given that the definition of ``equal
access'' expressly includes ``quality of service metrics'' that are
determined by such network upgrades and maintenance, we cannot accept
that Congress intended to limit section 60506(b)'s reach to broadband
deployment. Such an interpretation would defeat the purpose of the
statute.
111. Finally, regarding the inclusion of pricing within the scope
of our rules, we find that the statutory language encompasses
discriminatory pricing. We emphasize that the rules we adopt today do
not set rates for broadband internet access service and are not an
attempt to institute rate regulation. Once again, section 60506(b)
directs us to ``adopt final rules to facilitate equal access to
broadband internet access service,'' and ``equal access'' is defined in
section 60506(a)(2) as the equal opportunity to subscribe to an offered
service that provides comparable quality of service ``for comparable
terms and conditions.'' (emphasis added). We are unpersuaded by the
arguments of commenters that pricing is not included (or includable) in
the terms and conditions that must be ``comparable'' under the
statutory definition of equal access. Indeed, pricing is often the most
important term that consumers consider when purchasing goods and
services across the Nation's economy. We find this is no less true with
respect to broadband internet access service. Consequently, we do not
believe it was necessary for Congress to specifically reference pricing
in the definition of ``equal access'' because the most natural reading
of ``terms and conditions'' includes pricing. Moreover, it would be odd
for Congress to direct the Commission to consider technical and
economic feasibility and have our rules not allow any consideration of
differential pricing when analyzing a digital discrimination of access
claim. The Commission need not prescribe prices for broadband internet
access service, as some commenters have cautioned against, in order to
determine whether prices are ``comparable'' within the meaning of the
equal access definition. The record reflects support for the Commission
ensuring pricing consistency as between different groups of consumers.
We also find that the Commission is well situated to analyze
comparability in pricing, as we must already do so in other contexts.
For example, we analyze the ``lowest corresponding price'' in the
universal service context and conduct the Urban Rate Survey, both of
which require comparing the prices that covered entities charge
different groups of customers for broadband. We find that the ``terms
and conditions'' covered by the ``equal access'' definition in section
60506(a) includes pricing terms and conditions, and that ``digital
discrimination of access'' therefore includes discrimination with
regard to such pricing.
112. We also reject Verizon's argument that our rules cannot apply
to policies and practices that occur after a customer subscribes to
broadband internet access service. Verizon argues that the definition
of ``equal access'' limits the scope of our rules to policies and
practices affecting only the ``opportunity to subscribe'' to broadband
service in the first instance. In other words, Verizon argues that our
rules can only address policies and practices concerning the consumer's
ability to sign up for service (i.e., contract formation), but cannot
address whether the service is actually rendered on equal terms (i.e.,
contract performance). We disagree with this interpretation. We
acknowledge that the definition of ``equal access'' in section 60506(a)
refers to the ``equal opportunity to subscribe to an offered service .
. . .'' But we find the word ``subscribe'' in this context means more
than simply signing up for service. It refers, instead, to the ability
to receive and effectively utilize the service so as to allow full
participation in the social, educational, political and economic life
of our Nation. The Statement of Policy in section 60506(a) says that
``subscribers should benefit from equal access to broadband internet
access service'' and that ``the Commission should take steps to ensure
that all people of the United States benefit from'' such equal access.
There is little or no benefit to be derived simply from having the
opportunity to sign up for broadband service if the covered entity can
freely engage in discriminatory policies and practices with regard to
the ongoing provision of that service. Rather, the potential social,
educational, political and economic benefits flow from having the
opportunity to receive the service and effectively utilize it. We find
that interpreting section 60506 in the cramped manner urged by Verizon
is flatly inconsistent with Congress's goal of expanding access to
broadband internet access service. We therefore reject that
interpretation.

Revising Commission's Informal Consumer Complaint Process

113. We adopt the proposals in the NPRM to revise our informal
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. Subsection 60506(e)
requires that the Commission ``revise its public complaint process to
accept complaints from consumers or other members of the public that
relate to digital discrimination.'' Currently, consumers use the
Commission's Consumer Complaint Center to file informal complaints. The
Commission's informal consumer complaint process, administered by the
Consumer and Governmental Affairs Bureau, is a long-standing, free and
efficient way for consumers to raise issues with their service
providers and bring problems to the attention of the Commission. The
FCC's informal consumer complaint process facilitates a conversation
between the consumer and their provider to address the consumer's
issues. The consumer complaint process does not involve arbitration,
mediation, or investigation. The collective data received from informal
consumer complaints help the Commission monitor what consumers are
experiencing and inform our policy and enforcement work. In adopting
our proposed changes to our informal consumer complaint process, we
implement subsection 60506(e).

[[Page 4146]]

114. We agree with the majority of commenters who assert that
consumers should have an easily accessible complaint process. Such a
process will not only benefit consumers in filing complaints related to
digital discrimination of access but will also assist the Commission in
monitoring what consumers are experiencing, identifying trends, and
informing potential policy determinations or enforcement. We note that
the Commission's Consumer Complaint Center is responsive on mobile
devices and that the FCC's call center is staffed by both English and
Spanish speaking agents who can file complaints on behalf of consumers.
Individuals who use videophones and are fluent in American Sign
Language (ASL) may call the Commission's ASL Consumer Support line for
assistance in ASL with filing informal complaints or obtaining consumer
information. Consistent with our current process and procedures,
consumers may also file complaints via the Consumer Inquiries and
Complaint Center, as well as by fax and postal mail.
115. We thus disagree with commenters who argue that our proposed
informal complaint process changes would impose undue burdens on
covered entities. Our proposed changes do not alter the existing
informal complaint process. Rather, our proposed changes make it easier
for consumers to file informal complaints related to digital
discrimination of access, as mandated by Congress, and allow the
Commission to better analyze such complaint data. Indeed, Commission
experience with the dedicated pathway for ACP complaints has
demonstrated the utility of such a dedicated pathway.
116. We also disagree with the International Center for Law &
Economics, which argues that the Commission should implement a legal
``standing'' requirement for filing informal complaints. The
Commission's informal consumer complaint process is designed
specifically to provide consumers with a simple and efficient way raise
concerns and file complaints with the Commission without complicated
legal procedures, filing fees, or other burdensome requirements. The
Commission does not currently impose any standing requirements for
filing informal consumer complaints. Adopting a standing requirement
specifically for digital discrimination of access issues with the
Commission would, in effect, thwart a consumer's ability to do so. Such
an outcome would be contrary to the express language of section 60506.

Dedicated Pathway for Digital Discrimination of Access Complaints

117. We adopt our proposal to add a dedicated pathway for digital
discrimination of access complaints. This dedicated pathway will
provide digital discrimination informational content in the Consumer
Complaint Center to educate consumers about digital discrimination and
to provide clear instructions to consumers on how to correctly file a
digital discrimination complaint. Consumers will be able to submit
their digital discrimination of access complaints through the Consumer
Inquiries and Complaint Center. They will be required to choose an
issue that best describes their complaint and include a narrative with
pertinent details. These complaints will be reviewed and processed. If
the consumer submits a complaint alleging digital discrimination of
access by a covered entity, the complaint will be forwarded to the
appropriate covered entity for investigation and the Commission may set
a due date for the covered entity to provide a written response to the
informal complaint to the Commission, with a copy to the complainant.
Complaint information will be reviewed internally to inform policy and
shared internally, when appropriate, for potential enforcement. In
addition, we note that the Commission's established administrative
processes and procedures afford the Enforcement Bureau access to all
consumer complaint data that is submitted through the Consumer
Inquiries and Complaint Center. The record in this proceeding reflects
widespread support for establishing such a pathway. We agree with
commenters that adding a dedicated pathway will increase both the
accessibility and efficiency of the complaint process. We direct the
Consumer and Governmental Affairs Bureau to implement this dedicated
pathway and, in coordination with the Wireline Competition Bureau, to
monitor complaints submitted through this pathway to assist in the
formulation of future policy and consumer education initiatives.
118. We also agree with those commenters who stress the need to
educate consumers on the issue of digital discrimination of access and
the complaint process associated with such complaints. We direct the
Consumer and Governmental Affairs Bureau, in coordination with the
Wireline Competition Bureau, to develop materials to educate consumers
on digital discrimination of access and on how to file complaints via
the dedicated pathway.
119. Need for Dedicated Pathway. We find that our informal consumer
complaints process provides the best opportunity for consumers to
inform the Commission of digital discrimination of access issues. The
informal complaint process requires no complicated legal procedures,
has no filing charge, and does not require the complaining party to
appear before the Commission, making it an easy and efficient method
for consumers to bring issues to the Commission's attention. The
Commission reviews informal consumer complaints and, when applicable,
will identify trends and share information internally in furtherance of
our enforcement and consumer protection efforts. As the Commission
takes seriously its enforcement obligations, we direct the Enforcement
Bureau, in coordination with the Consumer Governmental Affairs Bureau
and the Wireline Competition Bureau, to expeditiously investigate
potential violations and enforce our rules using the Commission's
traditional enforcement mechanisms.

Voluntary Demographic Information Collection

120. We adopt our proposal to collect voluntary demographic
information from filers who submit digital discrimination of access
complaints. We note that the statute requires the Commission to
``prevent[ ] digital discrimination of access based on income level,
race, ethnicity, color, religion, or National origin[.]'' We find that
collecting minimal, voluntary demographic information from individuals
filing complaints may enable us to identify and understand some
underlying patterns of digital discrimination of access that might not
otherwise be apparent from the substance of the complaints, thus
increasing the utility of the informal complaint process as it relates
both to policy development and enforcement. We agree that this
collection should be voluntary on the part of the complainant and
direct the Consumer and Governmental Affairs Bureau to make clear that
this information is not required in order to submit a digital
discrimination of access complaint, that the provision of such
information will not affect the submission or processing of the
complaint, why this information is being collected, how it will be
used, and how it will be maintained by the Commission. We note that the
Commission's use and disclosure of such information will be subject to
the applicable System of Records Notice

[[Page 4147]]

(SORN) governing our informal complaints system, which the Commission
will modify, if necessary, based on this Report and Order.
121. We disagree with WISPA that providing demographic information
should be mandatory. We are concerned that requiring this information
may deter consumers from filing complaints. Because the purpose of our
changes is to encourage consumers to file informal complaints when they
believe our rules may have been violated, we find that the potential
deterrence effect from requiring such information outweighs any
potential benefit from making the provision of such information
mandatory.

Pathway for Organizations To Submit Digital Discrimination of Access
Complaints

122. We adopt our proposal to establish a clear pathway for
organizations to submit digital discrimination of access complaints. We
agree with commenters that allowing community partners and third-party
organizations to file informal complaints on behalf of consumers
(individuals or groups of individuals) will enable the Commission to
better identify substantive complaints and collaborate with state,
local and Tribal governments when addressing such complaints. We also
agree with commenters such as the National League of Cities that
allowing third parties to file on behalf of consumers will improve
access to our informal complaint process for those with language
barriers, limited digital skills, and/or limited access to devices or
connectivity. Improving access to our informal complaint process serves
both as an important safeguard for marginalized communities and as a
means of ensuring that our complaint data is complete and accurate.
123. We disagree with commenters who suggest that third party
filers should be subject to more burdensome procedural or evidentiary
standards. We find that the benefits of promoting and enhancing access
to our informal complaint process far outweigh the limited risks
outlined by the commenters. We agree with Public Knowledge that one of
our primary goals is to ``further enable marginalized communities to be
represented through the complaint process'' and that ``to throw up
additional barriers would undermine this goal.''
124. Making Available Anonymized Complaint Data. We adopt our
proposal to make anonymized or otherwise de-identified complaint data
available to the public. We direct the Consumer and Governmental
Affairs Bureau, in coordination with the Wireline Competition Bureau,
the Office of Economics and Analytics, and the Office of General
Counsel, to periodically make publicly available anonymized or
otherwise de-identified digital discrimination of access complaint
data. The record in this proceeding reflects widespread support for
this proposal. We agree with commenters that such data would be useful
to third parties in conducting research, advocacy, and reporting, and
we find that these data can be released without compromising the
privacy of individual complainants. We find that public release of
anonymized or otherwise de-identified data would also promote
transparency and empower third parties to assist the Commission in
identifying trends in digital discrimination of access.

Enforcement

125. We find that effective implementation of section 60506
requires use of the Commission's traditional enforcement mechanisms to
fulfill Congress's mandate that the Commission prevent and identify
necessary steps to eliminate digital discrimination of access. This
includes the full gamut of the Commission's enforcement toolkit, which
ranges from letters of inquiry to remedial orders to forfeiture
proceedings. Alleged or otherwise apparent instances of digital
discrimination of access will be investigated on a self-initiated
basis. This approach, which affords the Commission necessary
flexibility for tackling Congress's directives, will involve data
gathering via complaints and allegations made through the Commission's
informal complaint process by state, local, and Tribal officials, and
via other sources.
126. As explained above, a policy or practice will violate our
prohibition on digital discrimination of access if it discriminates,
either by intent or in effect, based on one of section 60506's listed
characteristics. In examining policies and practices, the Commission
will look to whether the policy or practice in question differentially
affects access to broadband internet access service or is intended to
do so. If yes, then the Commission will look to whether less
discriminatory options were available. Thus, the rules we adopt today
involve a twofold assessment: first, whether a policy or practice is
discriminatory; and if so, whether there were reasonably available and
achievable alternatives (i.e., alternatives that were technically and
economically feasible) that would have been less discriminatory.

Legal Authority

127. In the NPRM, we sought comment on how the Commission should
enforce any such rules we might adopt, including by use of our existing
``enforcement toolkit of letters of inquiry, notice of apparent
liability, and forfeiture orders.'' We further sought comment on any
limitations thereon, highlighting a dispute among commenters about the
legal authority underlying the use of these enforcement mechanisms. We
conclude that these same tools may be used to enforce the rules we
adopt today pursuant to section 60506. Implementing the statute's
directives necessitates use of these tools and processes, which will
facilitate Congress's and the Commission's goal of facilitating equal
access by preventing digital discrimination of access and identifying
means to eliminate such discrimination.
128. We find that subsection (b)(1) and (e) under section 60506
provide the Commission express authority to enforce its mandates using
the Commission's normal suite of enforcement mechanisms. Section 60506
directs the Commission to adopt final rules to ``prevent[ ] digital
discrimination of access,'' and to ``identify[ ] necessary steps'' for
eliminating such discrimination. Use of the words ``prevent'' and
``eliminate'' is unusual in the context of a federal anti-
discrimination statute. Congress usually adopts a statutory prohibition
on the types of discrimination it seeks to address, then tasks the
relevant administrative agency with implementing the prohibition
through agency rules. As discussed in prior sections of this Order, the
words ``prevent'' and ``eliminate'' constitute strong medicine and
represent a broad mandate for the Commission to take the necessary
measures to fully eradicate digital discrimination of access. Moreover,
a prohibition without enforcement cannot reasonably be expected to
affect conduct in a meaningful way. Indeed, various commenters have
identified the use of existing Commission enforcement mechanisms as
necessary tools for ensuring compliance with our rules. Others contend
that without the use of such tools, section 60506 could not function as
Congress intended. Similarly, there would be little point for Congress
to direct the Commission to accept complaints of digital discrimination
of access if we lacked any of our traditional powers to act on them.
The existing ``public complaints

[[Page 4148]]

process'' serves the agency's general authority to enforce the
Communications Act, so we interpret the mandate in subsection (e) to
reflect Congress's intent that the agency enforce digital
discrimination complaints under the Act's general enforcement
provisions.
129. However, some commenters argue that the Commission lacks
authority, both under the Communications Act and section 60506, to
enforce any rules prohibiting digital discrimination of access. They
argue that because Congress did not expressly incorporate section 60506
into the Communications Act, any remedies or enforcement mechanisms
found in the Communications Act are unavailable, and section 60506 does
not authorize the use of such enforcement tools. AT&T, for example,
argues that Congress's decision to ``keep [s]ection 60506 out of the
Communications Act and to avoid cross-references between it and Title
V'' reflects Congress's desire to make enforcement by traditional
mechanisms unavailable. CTIA similarly observes that unlike other
provisions of the Infrastructure Act, such as section 60502, Congress
did not explicitly enable the Commission to ``impose forfeiture
penalties under [s]ection 503 of the Communications Act'' in section
60506, rendering those tools unusable.
130. We disagree with those asserting that section 60506 does not
authorize the use of the Commission's existing enforcement mechanisms.
Congress's decision not to incorporate section 60506 into the
Communications Act does not suggest that it contemplated only voluntary
compliance with rules designed to ``prevent'' digital discrimination of
access. Although some commenters argue that Congress implicitly or
indirectly incorporated section 60506 into the Communications Act, we
need not rely on such arguments to justify our approach. Rather, we
agree with commenters asserting that section 60506, standing alone,
authorizes the Commission to adopt or amend enforcement rules deemed
necessary to facilitate equal access and prevent digital discrimination
of access, including the use of the Commission's existing enforcement
mechanisms.
131. As discussed above, section 60506 authorizes the Commission to
incorporate both disparate treatment and disparate impact standards in
its definition of digital discrimination of access and, consequently,
to adopt rules prohibiting covered entities from engaging in such
practices. Contrary to arguments that section 60506 tasks the
Commission with ``facilitat[ing] equal access'' by way of funding
providers' deployment efforts, the statute expressly commands the
Commission to prevent digital discrimination of access. That is,
Congress tasked the Commission with adopting rules that would curb
digital discrimination of access before its occurrence. Even had
Congress tasked the Commission only with implementing a statutory
prohibition on digital discrimination of access (a mandate that would
be less broad than the one we were given), the Commission could not do
so merely through suggestion. We are aware of no instance in which a
federal anti-discrimination law is without any enforcement mechanism
whatsoever. Industry fails to explain how ``affirmative-based
approaches,'' like funding opportunities, would effectively implement
our mandate to ``prevent'' digital discrimination of access. No
commenter suggests that the solution to digital discrimination of
access, as we have defined it, requires directing more funds to the
entity responsible for such conduct. Indeed, others call such a result
absurd. Because preventing digital discrimination of access requires
some kind of ``stick'' in addition to ``carrots,'' it would render much
of section 60506 a ``nullity'' were the Commission to interpret the
statute to preclude enforcement of our rules implementing section
60506.
132. We find that section 60506 provides the Commission authority
to enact such rules as are necessary to fulfill its statutory
obligations--including, for example, amendment or readoption of our
existing enforcement rules in the specific context of digital
discrimination of access. Section 60506(b) directs the Commission to
``adopt final rules to facilitate equal access to broadband internet
service . . . including . . . preventing digital discrimination of
access . . . .'' And as we explain above, our enforcement tools are
indispensable in fulfilling this mandate. Section 60506 therefore
authorizes the Commission to adopt, readopt, or amend enforcement-
related rules as necessary to accomplish this task.
133. Finally, we find that section 4(i) of the Communications Act
provides the Commission ancillary authority to carry out its
statutorily mandated duties under section 60506, including enforcement
of a prohibition on digital discrimination of access. Section 4(i)
provides that ``[t]he Commission may perform any and all acts, make
such rules and regulations, and issue such orders, . . . as may be
necessary in the execution of its functions.'' Effective enforcement
rules are reasonably ancillary to the Commission's statutorily mandated
responsibility to combat discrimination in providing access to
broadband service. Arguments to the contrary highlight that section
60506 does not fall within the scope of the Communications Act and that
its mandate lacks a limiting principle. But as TechFreedom
acknowledges, section 4(i) enables the Commission to carry out duties
conferred by Congress outside those outlined in the Communications Act.
And as explained above, contrary to claims that use of its ancillary
authority in this instance would release the Commission `` `from its
congressional tether' '' or would ``exceed the bounds of its
statutorily[ ] delineated authority,'' the Commission's establishing
and enforcement of today's prohibition logically extends from and
satisfies Congress's mandate of preventing digital discrimination of
access.
134. We note that the enforcement measures and final rules that we
adopt today do not represent all that the Commission can--and must--do
to combat digital discrimination of access. As noted above, section
60506(b) directs the Commission to adopt ``final rules'' to: (1)
prevent digital discrimination of access and (2) identify necessary
steps for the Commission to take to eliminate such discrimination. We
interpret Congress's directive with respect to ``eliminating'' digital
discrimination of access to include steps not taken in our implementing
rules that might ultimately be necessary to ensure that such
discrimination does not occur after the effective date of our rules.
Congress has tasked us to identify any such ``necessary steps'' so they
can swiftly be undertaken if and when determined to be necessary, and
so Congress can consider what additional statutory authority, if any,
might be necessary to allow for full achievement of the equal access
goal. We believe the rules we adopt today, coupled with the affirmative
requirements proposed in the Further Notice of Proposed Rulemaking, FCC
23-100, released November 20, 2023, (Further Notice), represent the
measures necessary both to ``prevent'' and ``eliminate'' digital
discrimination of access in the future. As such, we find our actions
today satisfy the Commission's obligations under section 60506(b)(1)
and, at a minimum, takes initial steps towards addressing our
obligations under section 60606(b)(2).
135. We disagree with those asserting that enforcement of our
prohibition raises a major-questions-doctrine issue. As explained
below, the Commission's

[[Page 4149]]

self-initiated investigation process does not reflect a substantial
overhaul of the Commission's enforcement mission. Nor does taking this
step, modest in comparison to the concerns raised by some commenters,
risk fundamentally altering the landscape of the telecommunications
industry. As employers, covered entities should be familiar with the
standards and processes for establishing liability under Title VII of
the Civil Rights Act of 1964, and many of these entities must already
comply with the nondiscrimination requirements associated with the
receipt of federal funds. Moreover, the Commission does not find in
section 60506 an ``elephant[ ] in a mousehole'' as some commenters
argue. To the contrary, Congress here explicitly called on the
Commission to prevent and identify necessary steps to eliminate digital
discrimination of access. It mandated, using clear language, that the
Commission adopt rules necessary for doing so. Our adoption of a
prohibition on digital discrimination of access is directly responsive
to Congress's charge, and our use of the Commission's enforcement
mechanisms a necessary component of those efforts.
136. At the same time, we do not agree with some commenters'
suggestion that section 60506(b)(2) represents a broad grant of
authority to the Commission to require covered entities to undertake
remedial measures to eradicate the effects of conduct predating the
effective date of our rules. While section 60506(b)(2) authorizes the
Commission to ``identify'' the steps necessary to eliminate the
discrimination identified in subsection (b)(1), it does not, in our
view, constitute a clear grant of authority to impose retroactive
liability on industry participants. Moreover, we note that determining
when and where digital discrimination of access occurred across the
country in the past, how to remedy such discrimination, and how to
assign and allocate the cost of such remediation, would represent
highly time- and resource-intensive undertakings. We will not presume
that Congress intended for the Commission to undertake these highly
complex tasks without clear evidence to that effect. Accordingly, for
purposes of implementing section 60506(b), we will train our focus on
preventing--and thus eliminating--digital discrimination of access
occurring after the effective date of our rules.

Amending Commission Rules

137. We amend some of our existing enforcement rules today to
enshrine the processes by which the Commission will undertake
investigations of claims of digital discrimination of access. These
include changes to Rule 1.80, which details our forfeiture procedures,
so that it will now reference the provisions of section 60506 in
addition to those of the Communications Act and other statutes. Rule
1.80, which acts as our implementing rule for forfeiture proceedings,
states that a forfeiture penalty may be assessed against any person
found to have violated either designated provisions of the
Communications Act (and rules related thereto); Title 18 of the United
States Code; or section 6507 of the Middle Class Tax Relief and Job
Creation Act of 2012, as well as rules, regulations, and orders
promulgated thereunder. Additionally, Rule 0.111 will now reflect the
Enforcement Bureau's direction to investigate claims of digital
discrimination of access and make recommendations as to potential
violations and penalties. We adopt these amendments pursuant to the
authority expressly granted to the Commission in section 60506(b).

Enforcement Framework

138. The Commission will launch investigations into complaints and
allegations of digital discrimination of access on a self-initiated
basis and, where the Commission determines a violation has occurred,
pursue remedies and penalties. Investigations may stem from complaints
filed through the informal complaint process or information otherwise
brought to the Commission's attention. As outlined above, the
Commission will adopt a dedicated pathway for accepting digital
discrimination of access claims from the public. Additionally, the
Commission may receive allegations of digital discrimination of access
from state, local, or Tribal governments. And as proposed in the
Further Notice, the Commission may in the future obligate covered
entities to make filings to the Commission as part of their affirmative
obligations to assist in combating digital discrimination of access,\2\
filings that similarly might serve as a basis for investigation.
Irrespective of the origin of such complaints and information, the
Commission will--at its discretion--determine whether investigation by
the agency is warranted and whether further response from the entities
alleged to have violated our rules will be required. However, we
recognize that broadband providers and other covered entities may need
time to review their policies and practices in light of the rules we
adopt today. Accordingly, we will not initiate any enforcement
investigation solely concerning conduct that produces differential
impacts under these rules until at least six months after the effective
date of the rules.
---------------------------------------------------------------------------

\2\ Infra para. 179.
---------------------------------------------------------------------------

139. The Commission will conduct its investigations of digital
discrimination of access complaints and allegations consistent with
federal law and in a manner consistent with the processes and
procedures followed by other federal agencies. Taking this approach
ensures alignment with civil rights models, as suggested by some
commenters. In investigating complaints and allegations of digital
discrimination of access, we adopt the legal standards for proving
discriminatory treatment and disparate impact set out below and in our
discussion above of disparate impact and disparate treatment standards
as they relate to our definition of digital discrimination of access.
140. Investigating complaints alleging that a policy or practice is
intended to differentially impact consumers' access to broadband
internet access service on a prohibited basis. Direct evidence of
discriminatory intent is rare. For that reason, intentional
discrimination is typically proven by circumstantial evidence. The two
legal standards for reviewing circumstantial evidence of intentional
discrimination are set out in Vill. of Arlington Heights v. Metro.
Housing Dev. Corp., 429 U.S. 252, 266 (1977) (Arlington Heights)
(providing the framework for analyzing whether facially neutral
policies or practices are motivated by discrimination) and McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973) (McDonnell Douglas)
(providing the framework for allocating proof for claims of disparate
treatment discrimination). Federal agencies historically have used two
chief legal frameworks in evaluating whether circumstantial evidence
supports an inference of discriminatory intent, depending on the nature
of the alleged discrimination. We will investigate complaints of
intentional discrimination under these frameworks.
141. When a facially neutral policy or practice is allegedly
motivated by discrimination: Arlington Heights standard. The Arlington
Heights framework applies when an otherwise facially neutral policy or
practice is allegedly motivated by discrimination. Under this
framework, as applied in the context of section 60506, the Commission,
as factfinder, will evaluate a variety of factors that contributed to
the adoption, use or application of the challenged policy or practice
in order to determine discriminatory intent. The non-exhaustive list of
evidentiary factors include: background of the

[[Page 4150]]

challenged policy or practice; sequence of events leading up to the
challenged policy or practice; departures from normal, procedural
sequence (how the challenged policy or practice occurred and was
decided on by decisionmakers); pattern of actions that impose greater
harm on persons in protected groups (i.e., whether a practice bears
more heavily on minority or low-income persons); and awareness of the
greater harm (i.e., whether the harm to members in the protected groups
was foreseeable to decisionmakers). Where it is determined that the
policy or practice was intended to discriminate, the agency evaluates
whether the adoption, use or application of the policy or practice
would have occurred absent the discrimination. Importantly, evidence of
statistical disparity, alone, generally will not satisfy this standard.
In the context of section 60506, this approach would likely be most
applicable to complaints involving treatment of a large group of
persons, including but not limited to deployment, upgrade, and large-
scale service matters alleged to have been motivated by prohibited
discrimination. The Commission will find a violation of the digital
discrimination of access rules where, upon close evaluation of
Arlington Heights factors, (1) persons in a protected group were denied
equal access to broadband internet access services, (2) the challenged
conduct would not have occurred absent the discrimination, and (3) the
policy or practice in question is not justified by genuine issues of
technical or economic feasibility, as outlined above.
142. When policies or practices are intended to impact persons
within the protected group differently than similarly situated persons:
McDonnell Douglas standard. This framework applies when a policy or
practice is intended to treat similarly situated persons differently
because of a protected status. It is typically utilized when
investigating complaints involving a smaller, discrete number of
complainants and where there are identifiable comparators. In the
context of our rules implementing section 60506, this framework may be
utilized for investigating complaints as to selection for benefits,
special deals, or even qualification for broadband service.
143. The Commission will investigate three elements under this
framework: (1) whether there is differential treatment of similarly
situated persons; This element is shown with evidence that persons are
within a protected group; they were eligible for service; were treated
in an adverse manner; and that persons similarly situated, but not in
the protected group, received better treatment. (2) whether there is a
legitimate, technical or economic justification for such differential
treatment; This element will be investigated by the Commission, and any
explanation must be clear and reasonably specific, and fully support a
showing that there was a ``legitimate, nondiscriminatory reason for the
different treatment.'' And, if so, (3) whether the technical or
economic justification for the differential treatment is actually a
pretext for prohibited discrimination. Under this element, the
Commission will investigate whether any reason given for the challenged
action was pretext for discrimination. Under this element, the
Commission may weigh whether the reasons given were true; any
weaknesses, implausibility, inconsistency or contradictions; and if
action taken was contrary to written policy or practice, or was a post-
hoc fabrication. As to the second element, the Commission will weigh
all available evidence bearing on whether the challenged policy or
practice is justified by genuine issues of technical or economic
feasibility. The Commission will find a violation of the digital
discrimination of access rules where persons in a protected group were
treated differently, and (1) there is no legitimate technical or
economic justification for the difference in treatment, or (2) the
proffered technical or economic justification is determined to be
pretext for discrimination.
144. Investigating allegations that policies and practices
differentially impact consumers' access to broadband internet access
service on a prohibited basis. We expect most investigations of
possible violations of our rules to concern credible allegations that
specific policies or practices have meaningful discriminatory effects
and are not justified by genuine issues of technical or economic
feasibility. We adopt the elements of proof for disparate impact as
established in Inclusive Communities in a way that comports with
section 60506 and the Commission's investigatory process. Thus,
investigations concerning allegations that facially neutral policies or
practices have discriminatory effects will involve: (1) the
identification of a policy or practice that is causing a disparate
impact on a prohibited basis; (2) assessment of whether the policy or
practice in question is justified by genuine issues of technical or
economic feasibility; and (3) a determination of whether there were
reasonably achievable, less discriminatory alternatives. If the
Commission determines that a covered entity's policy or practice
differentially affects access to broadband service on a prohibited
basis and that a less discriminatory alternative was reasonably
available and achievable, the policy or practice in question will not
be deemed justified by genuine issues of technical or economic
feasibility.
145. Under the first element of our disparate impact analysis, the
Commission will investigate whether an identified policy or practice of
the covered entity is causing the discriminatory effect. We will also
investigate the nature of the disparate impact that is being complained
about or otherwise brought to our attention. As explained above, we
will rely on information provided by the covered entity as well as
specified data sources and, where necessary, statistical analyses to
assess the extent of the differential impact on access to broadband
internet access service. The Commission recognizes that any such
differential impact on broadband access must be caused by a specific
policy or practice of the entity under investigation.
146. Under the second element of our disparate impact analysis, the
Commission will determine whether genuine issues of technical or
economic feasibility support and give substantial, legitimate
justification for the policy or practice that is being investigated.
Third, the Commission will determine whether a less discriminatory
alternative policy or practice was reasonably available and achievable
and identify any such alternative policy or practice determined to have
been reasonably available and achievable. If such an alternative was
available to the covered entity, the policy or practice causing the
differential impact will not be deemed justified by genuine issues of
technical or economic feasibility, and the covered entity will be
exposed to liability for digital discrimination of access. Under the
Commission's investigative process, the factual and legal bases for any
proposed liability determination are set forth in a notice of apparent
liability and the respondent has an opportunity to respond to that
notice before any final liability determination is made.
147. Remedies. Remedying violations of our prohibition on digital
discrimination of access will depend on the context and extent of the
violation. This requires that remedies be established on a case-by-case
basis. To this end, the Commission will bring to bear its full suite of
available remedies,

[[Page 4151]]

including the possibility of monetary forfeitures.
148. We adopt a presumption of compliance for policies and
practices that are in compliance with specific program requirements for
the Broadband Equity, Access, and Deployment (BEAD) and Universal
Service Fund (USF) high-cost programs. As noted below, we will consider
whether other presumptions or safe harbor defenses are warranted going
forward, including safe harbors or presumptions of compliance for
policies and practices that comply with other federal broadband
deployment programs that embody similar equity and nondiscrimination
principles. These programs exist to remedy current inequities in
broadband deployment and are consistent with section 60506 and our
rules adopted today to facilitate equal access to broadband internet
service. We will also accept a presumption of compliance for future
broadband funding programs that account for digital discrimination of
access rules. We decline to expand, however, presumptions or safe
harbor defenses beyond these funding programs as some commenters urge.
Although T-Mobile correctly identifies that the Commission must take
into account issues of technical and economic feasibility, we disagree
that for section 60506's language to have ``real meaning,'' the
Commission must establish particular safe harbor defenses at this time.
The approaches outlined above prove sufficient for protecting the
rights of industry participants, and we do not expect that the
Commission's self-initiated approach to investigations will inundate
industry participants with meritless claims that they must expend
substantial resources defending against. We also agree with other
commenters that prematurely establishing a comprehensive list of safe
harbor defenses may immunize covered entities against legitimate
complaints or allegations, without commensurate reasons for doing so.
We do, however, recognize that properly developed safe harbors may
facilitate regulatory certainty and help focus our enforcement efforts
in the future. Therefore, the Commission charges the CEDC with
identifying, evaluating and making recommendations with respect to
particular safe harbors, rebuttable presumptions or other similar
bright-line guardrails distinguishing permissible from impermissible
conduct under the rules we adopt today.
149. Structured Complaint Process. We decline at this time to adopt
a structured formal complaint process for claims of digital
discrimination of access. In the Notice, we sought comment on whether
the Commission should establish a structured complaint process similar
to the formal complaint process of section 208 of the Communications
Act. CTIA argues that the establishment of such a process would burden
both staff at the Commission and the resources of covered entities.
However, it is unnecessary for us to opine on these arguments. Instead,
we agree with Verizon that, currently, the informal complaint process
satisfies the requirements of section 60506 and provides the necessary
functionality for the Commission to carry out its duties. Although some
commenters encourage the Commission to establish a specific formal
complaint process for digital discrimination of access claims, these
commenters do not articulate the reasons for its necessity in light of
the self-initiated investigatory approach the Commission adopts today.
We do not foreclose the possibility of adopting a structured complaint
process in the future, however. As the Commission gains experience
investigating digital discrimination of access complaints, our approach
may evolve, leading us to revisit this issue in the future.
150. As noted above, in order effectively to identify and combat
potential violations of digital discrimination of access, the
Enforcement Bureau will evaluate information provided to the Commission
through the dedicated digital discrimination of access informal
complaint pathway or through communications from state, local, or
Tribal governments. The Enforcement Bureau, in coordination with the
Consumer and Governmental Affairs Bureau, will review this information
on a monthly basis and examine trends and geographic or demographic
clusters, among other things, in the informal complaint filings to
determine whether there is possible discrimination of access based on
income level, race, ethnicity, color, religion, or national origin.
Relevant evidence pertaining to purported differences in the covered
elements of service will be especially probative. Where there is
credible evidence suggesting that persons in a protected group were
treated differently as the result of a policy or practice, the
Enforcement Bureau, in its discretion, will use its authority to
conduct investigations; issue Letters of Inquiry and subpoenas; conduct
audits; inspect licenses and/or facilities; and collect information.
Further, the Enforcement Bureau will use the full range of its
enforcement options to enforce compliance, including the possibility of
forfeiture penalties.
151. Voluntary Mediation of Digital Discrimination of Access
Complaints. As part of the monthly review process referenced in the
preceding paragraph, Commission staff shall identify particular
informal complaints that would be suitable candidates for a staff-
mediated resolution process. With regard to such complaints, prior to
initiation of an Enforcement Bureau investigation, staff from the
Bureau's Market Disputes Resolution Division (which has no involvement
in Bureau-initiated investigations) may invite the informal complainant
and the covered entity identified in the informal complaint to engage
in a voluntary mediation process overseen by Division staff. If all
parties are willing to engage in such voluntary mediation, the
mediation would follow existing Commission procedures as outlined in
Rule 1.737 insofar as practicable. Any resolution reached through such
mediation process will be reduced to writing and will be binding only
on the parties to the mediation. The parties to the mediation may
agree, if they so choose, to disclose the terms of any resolution to
the Enforcement Bureau's Investigations and Hearings Division, but will
not be required to do so. If the parties choose to disclose the terms
of the resolution to the Investigations and Hearings Division, the
Enforcement Bureau will consider the terms and scope of the resolution
in determining whether to initiate an investigation into the matters
raised in the informal complaint. The Enforcement Bureau will not
initiate such an investigation until the mediation process has
concluded. This mediation process represents an alternative means of
bringing speedy and effective resolution to disputes.
152. Advisory Opinions. In order to provide greater regulatory
certainty and assist covered entities seeking to comply with our rules,
we adopt a process to allow any such covered entity to seek an advisory
opinion from Commission staff regarding the permissibility of a policy
or practice affecting broadband access. The Commission adopted such an
advisory opinion process in 2015 in connection with its open internet
rules. We find today, as the Commission found in 2015, that an advisory
opinion process will promote compliance and provide clarity, guidance,
and predictability regarding our rules.
153. Under the process we adopt today, any covered entity may
request an advisory opinion regarding the permissibility of its own
policies and practices affecting access to broadband

[[Page 4152]]

internet access service. As noted in our rules, requests for an
advisory opinion may be filed via the Commission's website or with the
Office of the Secretary. Requests must be copied to the Chief of the
Enforcement Bureau and the Chief of the Investigations and Hearings
Division of the Enforcement Bureau. The Commission hereby delegates to
the Enforcement Bureau the authority to receive such requests and issue
such advisory opinions, and we direct the Enforcement Bureau to
coordinate closely with other Bureaus and Offices regarding such
advisory opinions. The Enforcement Bureau will have discretion to
determine whether to issue an advisory opinion in response to a
particular request or group of requests and will inform each requesting
entity, in writing, whether the Bureau plans to issue an advisory
opinion regarding the matter in question. The Enforcement Bureau shall
decline to issue an advisory opinion if the relevant policy or practice
is the subject of a pending government investigation or proceeding.
154. Covered entities may submit requests for advisory opinions
regarding both current and prospective policies and practices affecting
broadband access. However, a request must pertain to a policy or
practice that the requesting party is currently utilizing or intends to
utilize, rather than a mere possible or hypothetical scenario. And as a
general matter, the Enforcement Bureau will prioritize responses
regarding prospective policies and practices intended to ensure
compliance with our rules. The Enforcement Bureau will also prioritize
requests involving substantial questions with no clear Commission
precedent and/or subject matter involving significant public interest.
155. When submitting requests, covered entities must include all
material information such that Commission staff can make a fully
informed determination on the matter. Requesting parties will also be
required to certify that factual representations made to the
Enforcement Bureau are truthful, accurate, and do not contain material
omissions. The Enforcement Bureau will have discretion to request
additional information from the requesting entity and from other
parties that might have relevant information or be impacted by the
request. These might include, for example, impacted consumers or state,
local, or Tribal governments.
156. Our advisory opinion process will affect covered entities and
the Commission's enforcement actions as described below. First, the
process is fully voluntary. No covered entity will be rewarded or
penalized for seeking an advisory opinion, and the seeking (or not) of
an advisory opinion will not itself influence any enforcement-related
decision by the Commission. Second, in an advisory opinion, the
Enforcement Bureau will issue a determination of whether or not the
policy or practice detailed in the request complies with our rules
implementing section 60506. If the Bureau determines that a policy or
practice currently in effect violates our rules, it may provide in the
opinion that it will not take enforcement action within a designated
time period if the policy or practice is promptly corrected. Third, a
requesting party may rely on an advisory opinion to the extent that its
request fully and accurately describes all material facts and
circumstances. Fourth, advisory opinions will be issued without
prejudice to the Enforcement Bureau's or the Commission's ability to
reconsider the questions involved, and rescind the opinion. Because
advisory opinions would be issued by the Enforcement Bureau, they would
also be issued without prejudice to the Commission's right to later
rescind or revoke the findings. Should the Enforcement Bureau or
Commission rescind a previously-issued advisory opinion, the requesting
party must promptly discontinue use of the relevant policy or practice
in order to remain in compliance with our rules.
157. The Enforcement Bureau will attempt to respond to requests for
advisory opinions as efficiently as possible. We decline to establish
firm deadlines, however, because we anticipate that the nature,
complexity, and magnitude of requests might vary widely. Furthermore,
it may take time for Commission staff to request any additional
information needed to issue an opinion. Once issued, the Enforcement
Bureau will make the advisory opinion available to the public. And to
provide further guidance to industry and consumers, the Bureau will
also release the initial request and any additional materials deemed
necessary to contextualize the opinion. Entities may request
confidential treatment of certain information, as provided under
Commission rules.
158. Special Advisor for Equal Broadband Access. As a further
measure to provide assistance to stakeholders regarding the rules and
new procedures we adopt today, the Commission shall designate a Special
Advisor for Equal Broadband Access within the Wireline Competition
Bureau to provide neutral technical assistance to all stakeholders. The
Special Advisor will provide consumers and their representatives
assistance with: understanding the scope and substance of the rules;
understanding the process for filing consumer complaints of digital
discrimination of access; understanding what information may best
assist the agency in fully assessing such complaints; identifying
Commission resources that might be helpful to consumers in determining
when digital discrimination of access might have occurred and how it
can be challenged; addressing questions regarding the voluntary
mediation of digital discrimination of access complaints; addressing
questions regarding the advisory opinion process outlined above; and
interfacing with various Commission components regarding access to
broadband internet access service. The Special Advisor will likewise
provide industry participants and their representatives assistance
with: understanding the scope and substances of the rules;
understanding the process for responding to complaints of digital
discrimination of access; understanding what information may best
assist the agency in fully assessing such responses; identifying
Commission resources that might be helpful to industry participants in
complying with the rules we adopt today; questions regarding the
voluntary mediation of digital discrimination of access complaints;
questions regarding seeking advisory opinions regarding policies or
practices affecting access to broadband internet access service; and
interfacing with various Commission components regarding access to
broadband internet access service. The Special Advisor may be
designated other responsibilities associated with the digital
discrimination of access rules we adopt today and other matters
relating to our efforts to ensure equal access to broadband internet
access service.
159. State and Local Enforcement and Private Rights of Action. We
decline at this time to authorize state and local enforcement of our
rules, as some commenters urge. As explained above, the Commission is
taking a self-initiated approach to investigations of digital
discrimination of access. By doing so, the Commission can best
establish the contours of what constitutes a violation of our
prohibition in a consistent manner. We also decline at this time to
create a private right of action, as we asked about in the NPRM, and
thus find it unnecessary to opine at this time about our authority to
do so.

Differential Impact

160. We find that in determining when consumers' access to
broadband internet service is ``differentially

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impacted,'' whether intentionally or not, we must account for all
comparable elements of service quality, terms and conditions.
Consistent with our discussion above regarding the elements of service
covered by our rules, we may compare service availability, service
quality, and the terms and conditions of service as between different
geographic areas and communities to determine whether digital
discrimination of access has occurred. This may include all technical
and non-technical aspects of service in a given area. We similarly
provide ourselves the flexibility to consider any comparable geographic
region that may be relevant to an alleged claim of digital
discrimination of access. Finally, the data we use to determine when a
policy or practice differentially impacts consumers' access to
broadband service will encompass data both from within the Commission
and from any outside sources that we consider relevant to evaluating
the issues at hand. Contrary to the concerns expressed by some
commenters, we do not expect that our digital discrimination of access
rules will require covered entities to collect any new data from their
customers in order to determine the differential impacts of their
policies and practices. Covered entities should be able to make those
determinations based solely on data from the U.S. Census Bureau.
161. We find this scope of inquiry necessary to meet section
60506's equal access goals. First, we agree with commenters that we
must have a flexible and non-exhaustive approach to comparing broadband
internet access service, as quality standards and the criteria to
measure quality will change over time. Second, adopting a comprehensive
approach is necessary to meet section 60506's aims regarding equal
access because ``a series of terms and conditions may have [cumulative
effects on access] even when each may be only slightly onerous on its
own.'' In other words, failing to have such a flexible approach could
lead to our digital discrimination of access rules undermining
Congress's intent for enacting section 60506 by ``exacerbat[ing]
digital discrimination [of access] rather than eliminating it.''
Finally, as the record reflects that digital discrimination of access
requires assessing a myriad fact patterns, including various
technological and non-technological aspects of broadband service, the
unique challenges that covered entities face to deploy to certain
areas, and that broadband use may vary within local communities, we
must adopt a scope of comparability that can holistically assess each
claim. This analytical approach is consistent with the goal to ensure
that ``all people'' benefit from broadband, including those in
historically disadvantaged, Tribal, and rural communities. Our
assessment of whether an ``offered service'' is of comparable quality
to that available to other communities will turn on the capabilities of
the service rather than the particular technology through which the
service is offered. We will focus our analysis on whether the consumer
has the equal opportunity to obtain and utilize broadband internet
access service of comparable quality on comparable terms and
conditions. In this regard, we are mindful that ``comparable'' does not
mean ``identical.''
162. Our approach to comparability is consistent with established
civil rights law. As explained, we will require that covered entities'
policies and practices cause the identified disparities, consistent
with the reasoning of Inclusive Communities. We disagree with T-Mobile
that the ``robust causality requirement simply is not workable in the
broadband context[,]'' as our flexible approach will allow to consider
the factors that go into a provider's investment decisions. As these
matters are so fact-driven, our inquiry will also be on a case-by-case
basis, consistent both with longstanding precedent in civil rights law
and our approach to determining feasibility.
163. We disagree with commenters asserting that a determination of
digital discrimination of access need not require the ``robust
causality'' outlined in Inclusive Communities. Some commenters argue
that we should require only a showing of statistical disparity without
any evidence that the challenged policies or practices caused the
disparity. We disagree. Instead, we agree with those commenters
asserting, consistent with Inclusive Communities, that sound disparate
impact analysis requires a determination that the challenged policies
and practices are a contributing cause of the identified differential
in access.

Comparing Technical Terms of Service

164. We find that our flexible approach to comparability has
several advantages when comparing the technical aspects of broadband.
First, this approach is consistent with our definition of covered
aspects of service. Second, this flexible approach will allow us to
account for the ``technical realities of provisioning'' broadband when
comparing technological aspects of services, such as network
degradation and upgrades, by encompassing variables that can explain
why network performance may be better or worse during certain periods.
Third, it will also provide for comparing technical aspects of service
that are present in certain technologies and not others, such as
wireless service. Finally, this approach will allow our comparability
analysis to adapt as technological preferences change over time and
account for substitutability.
165. The record in this proceeding regarding the
``substitutability'' (and therefore comparability) of broadband service
provided through different technologies is mixed. While some commenters
argue that the Commission's focus should be on whether the services are
comparable in practical terms because section 60506 is ``technology
neutral,'' Public Knowledge cautions that ``there are likely to be
significant technical variations between different technologies (e.g.,
wireline vs wireless), such that the default assumption should be that
even with stated similarities a service that employs different
technology is not comparable.'' Commenters also disagree on how
substitutability should be considered with regard to emerging
technologies, as some argue that service provided over fiber lacks a
substitute and others suggest the opposite. The range of views on the
record counsels that the Commission should take an approach to
comparing technical aspects of service that can accommodate the unique
considerations of each alleged instance of digital discrimination of
access. The holistic and flexible approach to comparability and
substitutability we describe today is consistent with that aim.
166. We decline to establish at this time a prescriptive range or
standard for comparing technical aspects of service. We are not
persuaded by commenters who suggest that we must take a prescriptive
approach to comparing technical aspects of service because greater
certainty is necessary to promote deployment. There are simply too many
potentially relevant technical variables to each claim to suggest that
a prescriptive approach could be practically administered or complied
with. We agree with commenters that the varying technologies and
services used to deliver broadband ``have different natures and
capabilities and should thus be evaluated independently using relevant
performance metrics.'' Indeed, the court in Orloff itself pointed out
that wireless carriers, even in a competitive market, still ``cannot
`decline to serve any particular demographic group (e.g., customers who
are of a certain race or income bracket).' '' The ability of wireless

[[Page 4154]]

carriers generally to provide sales concessions to some customers and
not others without being held to have engaged in ``unjust and
unreasonable discrimination'' within the meaning of sections 201 and
202 of the Communications Act does not mean that broadband providers
may discriminate between customers on the basis of the characteristics
pro

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