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Proposed Rule2024-01996

Implement the Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination

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Published

February 1, 2024

Effective

March 4, 2024

Issuing agencies

Federal Communications Commission

Abstract

In this document, the Federal Communications Commission (Commission) proposes rules regarding affirmative obligations for broadband providers, through: annual reports that facilitate greater transparency regarding substantial broadband projects recently completed by providers, and internal compliance programs requiring periodic evaluation of the demographics of communities served--and not served--by such recently completed projects, as well as pending and planned substantial projects. The Commission also seeks comment on establishing am Office of Civil Rights.

Full Text

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<title>Federal Register, Volume 89 Issue 22 (Thursday, February 1, 2024)</title>
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[Federal Register Volume 89, Number 22 (Thursday, February 1, 2024)]
[Proposed Rules]
[Pages 6477-6487]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-01996]

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 1, and 16

[GN Docket No. 22-69; FCC 23-100; FR ID 197453]

Implement the Infrastructure Investment and Jobs Act: Prevention
and Elimination of Digital Discrimination

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission
(Commission) proposes rules regarding affirmative obligations for
broadband providers, through: annual reports that facilitate greater
transparency regarding substantial broadband projects recently
completed by providers, and internal compliance programs requiring
periodic evaluation of the demographics of communities served--and not
served--by such recently completed projects, as well as pending and
planned substantial projects. The Commission also seeks comment on
establishing am Office of Civil Rights.

DATES: Comments are due on or before March 4, 2024, and reply comments
are due on or before April 1, 2024. Written comments on the Paperwork
Reduction Act proposed information collection requirements must be
submitted by the public and other interested parties on or before April
1, 2024.

ADDRESSES: You may submit comments, identified by GN Docket No. 22-69,
by any of the following methods:
<bullet> Federal Communications Commission's Website: <a href="http://apps.fcc.gov/ecfs/">http://apps.fcc.gov/ecfs/</a>. Follow the instructions for submitting comments.
<bullet> People With Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by email: <a href="/cdn-cgi/l/email-protection#165055552326225670757538717960">[email&#160;protected]</a> or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document. Send a copy of your comment on
the proposed information collection to Nicole Ongele, FCC, via email to
<a href="/cdn-cgi/l/email-protection#d282809392b4b1b1fcb5bda4">[email&#160;protected]</a> or <a href="/cdn-cgi/l/email-protection#622c0b010d0e074c2d0c05070e07220401014c050d14">[email&#160;protected]</a>.

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#aeefdbdccbc2c7cb80e3cfdac6c7cbdbeec8cdcd80c9c1d8">[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#267674676640454508414950">[email&#160;protected]</a> or contact Nicole
Ongele, <a href="/cdn-cgi/l/email-protection#c886a1aba7a4ade687a6afada4ad88aeababe6afa7be">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's
Further Notice of Proposed Rulemaking (Further Notice) 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#50161313656064103633337e373f26">[email&#160;protected]</a> or call the Consumer & Governmental
Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY).
Providing Accountability Through Transparency Act: The Providing
Accountability Through Transparency Act, Public Law 118-9, requires
each agency, in providing notice of a rulemaking, to post online a
brief plain-language summary of the proposed rule. The required summary
of this Further Notice of Proposed Rulemaking is available at <a href="https://www.fcc.gov/proposed-rulemakings">https://www.fcc.gov/proposed-rulemakings</a>.
Initial Paperwork Reduction Act of 1995 Analysis: This document
contains proposed information collection requirements. The Commission,
as part

[[Page 6478]]

of its continuing effort to reduce paperwork burdens, invites the
general public to comment on the information collection requirements
contained in this document, as required by the Paperwork Reduction Act
of 1995, Public Law 104-13. Public and agency comments are due April 1,
2024.
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415, 1.419, interested parties may file comments and reply
comments on or before the dates indicated on the first page of this
document. Comments may be filed using the Commission's Electronic
Comment Filing System (ECFS). See Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121 (1998).
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the ECFS: <a href="http://apps.fcc.gov/ecfs/">http://apps.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
<bullet> Filings can be sent by commercial overnight courier, or by
first-class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
<bullet> Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express,
and Priority mail must be addressed to 45 L Street NE, Washington, DC
20554.
<bullet> Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020), <a href="https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy">https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy</a>.
People With Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="fe989d9dcbcecabe989d9dd0999188">[email&#160;protected]</a> or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
The proceeding this document initiates shall be treated as a
``permit-but-disclose'' proceeding in accordance with the Commission's
ex parte rules. Persons making ex parte presentations must file a copy
of any written presentation or a memorandum summarizing any oral
presentation within two business days after the presentation (unless a
different deadline applicable to the Sunshine period applies). Persons
making oral ex parte presentations are reminded that memoranda
summarizing the presentation must (1) list all persons attending or
otherwise participating in the meeting at which the ex parte
presentation was made, and (2) summarize all data presented and
arguments made during the presentation. If the presentation consisted
in whole or in part of the presentation of data or arguments already
reflected in the presenter's written comments, memoranda or other
filings in the proceeding, the presenter may provide citations to such
data or arguments in his or her prior comments, memoranda, or other
filings (specifying the relevant page and/or paragraph numbers where
such data or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule 1.1206(b). In proceedings governed by
rule 1.49(f) or for which the Commission has made available a method of
electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding
should familiarize themselves with the Commission's ex parte rules.
This document may contain potential new or revised information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and the
Office of Management and Budget (OMB) to comment on the information
collection requirements contained in this document, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency
comments are due April 1, 2024.
Comments should address: (a) whether the proposed collection of
information is necessary for the proper performance of the functions of
the Commission, including whether the information shall have practical
utility; (b) the accuracy of the Commission's burden estimates; (c)
ways to enhance the quality, utility, and clarity of the information
collected; (d) ways to minimize the burden of the collection of
information on the respondents, including the use of automated
collection techniques or other forms of information technology; and (e)
way to further reduce the information collection burden on small
business concerns with fewer than 25 employees. In addition, pursuant
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198,
see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how
it might further reduce the information collection burden for small
business concerns with fewer than 25 employees.

Synopsis

1. In this Further Notice we take additional steps to fulfill our
statutory mandate to facilitate equal access to broadband internet
access service by preventing digital discrimination of access. We seek
further, focused comments on affirmative obligations that might be
undertaken by broadband service access providers (providers) to expand
broadband access and address possible digital discrimination of access.
Our digital discrimination of access rules apply to ``covered
entities'' which is broader than broadband providers, but at this time
our proposed annual report and compliance program are limited to
broadband providers as defined in 47 CFR 54.1600(b). The proposals in
this Further Notice complement rules we adopt today by focusing on
providers' day-to-day business practices that might, in some instances,
differentially impact consumers' access to broadband on prohibited
bases. Our proposals are intended to make fully transparent to the
public what communities are served, and what communities are not
served, by large-scale broadband deployment, upgrade, and maintenance
projects completed or substantially completed by each provider over the
preceding calendar year. We propose to require the reporting of this
information on a state-by-state or territory-by-territory basis in a
yearly supplement to the Broadband Data Collection (BDC) so the public
can see not only where broadband service is available, but where and
how providers are currently investing in their broadband networks and
what communities are benefiting from those investments. Our proposals
would also require providers to establish formal compliance programs
related to digital discrimination of access and to conduct regular,
internal assessments of what communities are served (and not served) by
recently completed, pending, and planned large-scale broadband projects
and whether their relevant policies and practices

[[Page 6479]]

might differentially impact consumers' access to broadband service.
Such regular assessments, we believe, will help ``smoke out'' policies
and practices that might impede equal access to broadband service
without sufficient technical or economic justification as providers
pressure test the asserted justifications for policies and practices
producing such effects. Affirmative obligations such as these are not
foreign to the Commission. Most recently, for example, the Commission
has adopted affirmative obligations for voice service providers to
better police their own networks against illegal robocalls and protect
consumers from widespread fraud, and we believe that targeted
affirmative and effective measures can similarly combat discriminatory
practices in the context of our duty under section 60506 to prevent and
identify steps to eliminate digital discrimination of access.
2. In this Further Notice, we propose two sets of affirmative
obligations for broadband providers in furtherance of our mandate to
facilitate equal access to broadband internet access service, including
by preventing digital discrimination of access. Under our proposal,
each broadband provider would be required to: (1) submit an annual,
publicly-available supplement to the BDC describing, on a state-by-
state or territory-by-territory basis, any large-scale broadband
deployment, upgrade, and maintenance projects that were completed or
substantially completed during the preceding calendar year and the
communities served by such projects; and (2) establish a mandatory
internal compliance program requiring regular internal assessment of
(a) what communities are served by recent, pending, and planned large-
scale projects and (b) whether the provider's broadband-related
policies and practices might differentially impact consumers' access to
broadband based on a listed characteristic and without adequate
technical or economic justification.
3. Legal Authority. We seek general comment on our authority to
require providers to implement affirmative obligations. Section 60506
directs the Commission to adopt rules to prevent digital discrimination
of access and identify necessary steps to eliminate such
discrimination. Does section 60506 authorize the Commission to impose
affirmative obligations on providers? Does the Communications Act
provide the Commission such authority, irrespective of whether section
60506 is part of the Communications Act? Does section 4(i) of the
Communications Act provide the Commission either direct or ancillary
authority to do so? Besides these legal authorities, are there other
sources for our authority to implement affirmative obligations of the
types set forth below?

Annual Report

4. We propose requiring that providers submit an annual, publicly-
available supplement to the BDC describing their recent broadband
investments in each state and territory. This supplemental report would
identify and describe, on a state-by-state or territory-by-territory
basis, all fixed or mobile broadband deployment, upgrade, and
maintenance projects completed or substantially completed in the
preceding calendar year, that are expected to affect the availability
or quality of broadband service at 500 or more housing units. A
``housing unit'' is defined as a single family house, townhome, mobile
home or trailer, apartment, group of rooms, or single room that is
occupied as a separate living quarters, or, if vacant, is intended for
occupancy as a separate living quarters. The report would categorize
each such project as a deployment, upgrade, or maintenance project (or
some combination thereof) and would identify the number of housing
units affected by the project through numerical bands (such as 500-999,
1000-4999, 5000-9999, etc.). The report would identify through the
census tract affected by the project, and would provide a brief
narrative description of the project and the geographic area served by
the project to provide greater precision and clarity regarding what the
project is designed to accomplish and what communities are served by
the project. The primary goal of requiring this report would be to
increase transparency regarding what substantial investments providers
are currently making in their networks, what communities are being
served--or not served--by those investments, and how they are being
served. The information provided in the annual supplement to the BDC
would allow the Commission, state and local broadband regulators,
public interest organizations, and other stakeholders to review on a
jurisdiction-by-jurisdiction basis what major deployment, upgrade, and
maintenance projects covered entities have completed or substantially
completed within the states and territories of their footprint and what
communities are and are not served by those projects. We believe this
information would assist in the development of broadband policy, in the
strengthening of advocacy for broadband expansion, and in the targeting
of our efforts to enforce our digital discrimination of access rules.
5. In the Notice of Proposed Rulemaking, 88 FR 3681, we sought
comment on what self-assessment or reporting obligations we should
require of providers. In response, the Leadership Conference on Civil
and Human Rights suggested that we look to other sources of civil
rights law to develop affirmative obligations, Microsoft recommended
that providers use Commission data to formulate plans to address
digital discrimination of access, and several commenters recommended
self-reporting requirements. Based on the comments received in the
record, we believe our steps in this Further Notice are consistent with
recommendations for self-reporting and will result in useful data to
stakeholders. We seek comment on this approach.

Components of the Report

6. We propose that each annual report must address the following
components to provide a comprehensive picture of each major deployment,
maintenance, and upgrade project completed or substantially completed
for each state and territory within its service area or footprint: (1)
the nature of each project completed or substantially completed in the
calendar year immediately preceding the submission of the report (i.e.,
deployment, upgrade, maintenance, or a combination thereof); (2) the
number of housing units affected by the project (i.e., the number of
housing units whose broadband availability or quality is positively
impacted by the project) by census tract (utilizing the system
presently used in the BDC); and (3) a narrative description of the
project and of the areas served by the project, to allow for greater
precision and clarity regarding what the project is designed to
accomplish and what communities are served by the project.
7. We seek general comment on the pros and cons of an annual report
in the context of this proceeding. What are the short-term and long-
term benefits of this proposal? Is there a more appropriate way to
collect this information other than an annual report? Is there a way we
can utilize existing data in connection with or in place of the
proposed annual report to promote transparency regarding broadband
investments? How could regulators leverage these reports to address
potential disparities in broadband access? Are there other stakeholders
that would benefit from such a report? Are there other uses for such a
report that would foster the equal access policy of section 60506? Are
there other potential benefits or

[[Page 6480]]

challenges in implementing an annual reporting requirement?
8. We also invite comment on the proposed components of the annual
report, discussed in turn below. Are they sufficient? Are there other
components that are necessary to meet our transparency goal. Are any of
the proposed components in conflict or tension with the equal access
goal of section 60506? What other reasons or justifications might exist
for excluding one or more of the proposed components of the report?
Would there be challenges in implementing this proposal and if so, how
can the challenges be addressed? We seek comment on how to strike the
right balance between gathering sufficient information and avoiding
undue burdens on reporting entities when implementing this annual
report requirement.
9. Nature of the projects. In identifying the nature of the
projects completed or substantially completed in the report, our
proposal would require that providers identify any broadband
deployment, upgrade, or maintenance projects undertaken within the
specified period and affecting 500 or more housing units. We believe
that deployment, maintenance, and upgrade projects are the type of
investments that most broadly and directly affect consumer access to
broadband service and, thus, should be reported in order to facilitate
greater transparency regarding where such investments are being made.
We seek comment on this proposal. We propose to deem a project
completed when all the tasks and objectives have been successfully
completed, all deliverables have been produced, all milestones have
been met, and there is no outstanding work or tasks to be done. We also
seek comment on what should be considered a substantially completed
project. For example, should we define substantially completed as being
a project for which, at the providers' discretion, either 85% of the
impacted locations are covered, or for which 85% of the most recent
budget with commercial approval has been spent? Should the difference
between the definitions of substantially completed and completed be
based on providers expected timeline for a project?
10. Housing units affected. We propose that the reporting
requirement apply to projects affecting 500 or more housing units. We
propose to use the definition of a ``housing unit'' in Commission rule
802.223, which defines the term as ``a single family house, townhome,
mobile home or trailer, apartment, group of rooms, or single room that
is occupied as a separate living quarters, or, if vacant, is intended
for occupancy as a separate living quarters.'' An ``economic unit''
consists of all adult individuals contributing to and sharing in the
income and expenses of a household. We seek comment on this definition.
Based on this proposed definition, we seek comment on what number of
housing units should trigger the requirement to report on a particular
project. Is the number 500 reasonable in light of our transparency
goal? Should the same threshold number of housing units apply to
deployment, upgrade, and maintenance projects? Should different
thresholds be applied to each category? Once the 500 housing unit
threshold is met, is categorizing housing units in metric bands (e.g.,
500-999, 1000-4999, 5000-9999) an effective method to report the scope
of the deployment, maintenance, or upgrade projects? We specifically
seek comment on the potential impacts on rural and Tribal areas. Should
there be special considerations for rural and Tribal areas? If so, how
can we ensure that these areas are being considered?
11. Geographic area of the project. We seek comment on requiring
providers to report the geographic area of each major deployment,
upgrade, and maintenance project by census tract. Would reporting
projects at the level of the census tract be appropriate? What benefits
and burdens would be associated with reporting data at the census tract
level? Would census block be too granular? Should providers be required
or permitted to report impacted locations in the same manner as they
report deployed locations in the BDC? Since the BDC allows providers to
report availability data in the form of polygon shapefiles, or as
broadband serviceable location fabric (fabric), would adopting either
one of these metrics reduce the burden on filers? In what format do
covered entities routinely store data on deployments, upgrades, and
maintenance projects? To the extent covered entities do not routinely
collect and store such information, we seek comment on how to specify a
single methodology for doing so.
12. We also seek comment on whether there are more precise metrics
to identify the location of projects in rural and Tribal areas than the
proposed census tract metric. Are there any additional issues specific
to rural and Tribal areas that we should consider in completion of
these annual reports? Would a census block requirement be workable?
Would it encompass rural and Tribal areas more efficiently? Should
providers be required to identify whether the impacted area is rural or
Tribal and, if so, how should they do that? Should covered entities be
required to specifically describe their projects in Tribal areas,
irrespective of the number of housing units served by the project?
13. Narrative description of project. We propose that providers use
the narrative description to provide information regarding each project
sufficient to determine what the project was designed to accomplish,
why it was undertaken, and what communities within the designed census
tracts it was intended to serve. In particular, the designation of a
project as a deployment, upgrade, or maintenance project may not
sufficiently explain what the project was intended to accomplish (e.g.,
upgrade service from DSL to fiber) or the specific communities within
the designated census tracts that will be served by the project (e.g.,
naming the neighborhoods served or providing the geographic boundaries
of the project). By requiring the narrative description of the project,
we intend to allow greater precision and clarity about the nature of
the project and the communities served, without being overly
prescriptive. We seek comment on this proposal. Should we be more
prescriptive about the narrative descriptions required? Should we
require, for example, that providers describe the demographics of the
communities served by these projects and/or the dates the projects were
completed or substantially completed? Is there other narrative
information we should require in order for the reporting requirement to
serve its intended purpose of providing greater transparency regarding
recent broadband investments? More generally, is a report of the type
we propose necessary or helpful in light of the data already being
collected through the BDC?

Annual Report Filing Timeline

14. We propose to require providers to file their annual report as
a supplement to the BDC report due in March of each year and that it
cover projects completed or substantially completed in the calendar
year immediately preceding the submission of the report. We seek
comment on this proposal. We seek comment on this filing timetable and
whether it provides sufficient time for providers to gather and review
the information required in the report. We also seek comment on whether
submitting the annual report as a supplement to the year-end BDC filing
is the most reasonable and efficient approach. Should these deadlines
be

[[Page 6481]]

staggered? If so, how much time should be allotted between the filing
of the year-end BDC report and the annual, major projects report?

Availability of Annual Reports

15. We propose to make the results of these annual reports
available to the public. As discussed above, we tentatively conclude
that significant benefits would flow from making these reports public,
such as increasing transparency regarding substantial investments by
providers, informing broadband policy at the Federal, state and local
level, strengthening advocacy for expanded broadband access, and
targeting the Commission's efforts to enforce the rules we adopt today.
We seek comment on our proposal to make these reports public. What is
the best method for releasing these reports to the public? Should these
reports be easily accessible on the provider's website or should they
be made available by another means? We also seek comment on the
benefits or burdens of making the reports available to the public. Are
there confidentiality concerns we need to consider with respect to the
information in question? If so, what measures would be necessary to
protect the legitimate confidentiality interests of providers?

Supplements to Existing Commission-Issues Reports

16. We also seek comment on whether the Commission should publish
certain data from the proposed annual reports in the Commission's
existing reports, such as the Communications Marketplace Report or the
broadband progress report required by section 706 of the
Telecommunications Act of 1996 (Section 706 Report). We note that the
Commission has already initiated the inquiry for the next Section 706
Report. Although we propose that the annual reports be publicly
available, as supplements to the annual BDC filings, would including
certain data in either of these existing Commission reports provide
greater transparency to consumers and communities? If so, what data
should be included? Should we include the entirety of the proposed
annual reports, or limit the data to a more narrow set of data points?
Should we expand the information published in the Communications
Marketplace Report or the Section 706 Report beyond the proposed annual
reports to include summaries of filed digital discrimination of access
informal complaints, any findings of digital discrimination of access,
or steps the Commission has taken to address equal access? Would
including this additional information in either these Commission-issued
reports enhance transparency and make the proposed annual reports fully
available and accessible to more stakeholders?

Intersection With Other Broadband Data

17. We seek comment on how providers can leverage existing data
sources, such as the existing BDC, in compiling these reports. To the
extent we can model the requirements for this report off the BDC, how
would that be helpful to providers? We assume that providers would
prefer to use the same criteria and data fields that are used in the
BDC to the extent possible. We seek comment on whether this is true.
18. Are the relevant criteria and data fields used in the BDC too
broad or narrow for our present purposes? Is there a need for
additional data to be collected or for different metrics to be used?
Given that providers are aware of their deployment and report the
impact of deployments as part of the BDC, what would be the additional
burden of providing annual reports? Are there policies or procedures we
can adopt to reduce the burden on providers?
19. We tentatively conclude that the annual reports proposed above
should be certified by the provider as true and correct, just as occurs
with respect to BDC submissions. We propose that the same experts who
certify the BDC submissions also be required to certify the proposed
annual report: (1) a corporate officer, and (2) an engineer. We seek
comment on this proposal. Should we consider a different certification
process? Is it necessary that both a corporate officer and an engineer
certify reports containing the elements we have outlined above? Might
other officers or employees of the provider be better informed to
certify the contents of this annual report? We seek detailed comment on
these matters.

Exceptions

20. We seek comment on whether any providers should be exempted
from the requirement to submit an annual report based on their size,
footprint, or service area. Should we exempt providers that primarily
serve consumers at the rural and Tribal level and, if so, why? What
other providers should be exempted from submitting an annual report and
why?

Record Retention

21. It is important that records sufficient to determine the
veracity of the proposed annual reports be retained for some period of
time following submission of the reports. We seek comment on what
records should be retained and for how long they should be retained in
order to accomplish this verification purpose. We also seek comment on
whether records related to the proposed annual reports should be
retained for any purpose other than verification of the information
contained in such reports.

Compliance Program

22. In addition to the annual report, we propose to require each
provider to adopt and maintain a formal internal compliance program
designed to ensure regular assessment of whether and how the provider's
policies and practices advance and impede equal access to broadband
internet access service in its service area. In proposing to require
such compliance programs, our goals are to ensure close internal
scrutiny of policies and practices that might impede equal access to
broadband and to promote accountability with regard to such policies
and practices. In order to facilitate candid internal evaluation and
assessment of a provider's policies and practices affecting broadband
access, we do not propose to require providers to make publicly
available any reports or other documentation of such internal
evaluations and assessments. However, in order to ensure compliance
with the requirement to conduct such evaluations and assessments, and/
or in connection with a Commission investigation into alleged digital
discrimination of access, the Commission reserves the right to require
production of such reports and documentation subject to the
Commission's existing confidentiality rules. We seek comment on this
proposal.

Components of Compliance Program

23. Effective Compliance Program. We propose to model our mandatory
internal compliance program on previously established effective
compliance programs, while not being overly prescriptive regarding how
the compliance program is designed. Such models teach us that effective
compliance programs should include, at a minimum: (1) development and
implementation of written policies and procedures; (2) designation of a
compliance officer and/or compliance committee; (3) conducting
effective training and education regarding the purposes and operation
of the compliance program; (4) developing effective lines of reporting
and communication; (5) conducting internal monitoring and auditing; (6)
enforcing standards through well-publicized disciplinary guidelines;
and (7) responding promptly to detected

[[Page 6482]]

problems through corrective action. We seek comment on whether these
should be mandatory components of the compliance programs we propose to
require. Which of these elements of an effective compliance programs
should we require? Which elements should we not require, if any? Are
there additional elements we should consider adding in order to ensure
that the compliance programs effectively advance their intended purpose
of facilitating equal access to broadband? Although we seek comment on
each of these elements, we note that our goal is to grant each
broadband provider the flexibility to develop and maintain a plan that
contains the required elements and serves our intended purposes without
prescribing a particular formula as to how each required element should
be implemented. We seek comment on whether such flexibility will be
beneficial or detrimental to the implementation of effective internal
compliance programs by providers.
24. Implementing Written Policies and Procedures. We seek comment
on requiring providers to implement internal written policies and
procedures with the goal of preventing digital discrimination of access
and promoting equal access to broadband internet access service. In the
compliance program, are written policies and procedures necessary? What
should those internal written policies and procedures include? Who
should be knowledgeable about the rules and practices within the
organization? How often should these written rules and procedures be
reviewed, revised, and updated? Are there any available models that
providers can look to when devising their internal policies and
procedures to prevent digital discrimination of access and promote
equal access?
25. Designating a Compliance Officer and/or Compliance Committee.
We seek comment on requiring service providers to appoint a designated
compliance officer or establish a compliance committee to ensure
compliance with the program's requirements and timely cooperation with
the Commission upon request. Is it necessary to designate a compliance
officer or establish a compliance committee for the successful
implementation of the compliance program? What should the
qualifications of the selected compliance officer and compliance
committee members be? What should the structure of a compliance
committee be, how often should it meet, and what should be its
functions? Should the designated compliance officer be required to
provide that certification?
26. Conducting Effective Training on Commission Rules. We seek
comment on requiring service providers to conduct periodic training for
relevant employees on the Commission's digital discrimination of access
rules. Who should conduct the training, who should be required to take
the training, and how often should they be required to do so? How
should the substantive content of the training be developed and what
should it cover? Should the content of the training be certified or
approved by the Commission in some manner? If so, how often should such
certification or approval take place? Providers likely already have
compliance programs and employee trainings to maintain compliance with
regulatory requirements at many levels. What would be the additional
burden for providers to incorporate compliance with digital
discrimination of access rules into their existing compliance programs?
27. Developing Effective Lines of Reporting and Communication. We
propose requiring broadband providers to put in place mechanisms and
processes that: (1) encourage the internal reporting of matters that
may constitute, or lead to, digital discrimination of access or
otherwise impede equal access to broadband service; (2) channel those
concerns to the compliance officer and/or compliance committee for
evaluation and response, if warranted; and (3) ensure effective ``up
the chain'' reporting by compliance officers and committees so senior
officers are made aware of these matters and can take appropriate
action to prevent their recurrence. We seek comment on this proposal.
What system(s) can providers implement to encourage employees to raise
concerns about potentially problematic conduct? What should be the
reporting chain above the compliance officer and compliance committee
to ensure that equal access concerns are given the highest possible
priority by the provider? Are there other mechanisms and processes that
we should require to achieve effective lines of reporting and
communication regarding equal-access-related matters?
28. Conducting Internal Monitoring and Auditing. We seek comment on
requiring broadband providers to perform periodic reviews of the
compliance program and respond quickly to correct problems when they
are detected. Who should conduct such periodic reviews and how often
should they be conducted? What systems can providers put in place to
evaluate the overall effectiveness of the program and its compliance
with the requirements we ultimately adopt for such programs?
29. Responding Promptly to Detected Problems and Undertaking
Corrective Action. We seek comment on what requirements we should adopt
regarding the handling of problems reported by the compliance officer
or committee to senior management, especially when no corrective action
has been taken. What obligations would a compliance officer or
committee have under those circumstances? What recourse would a
compliance officer or committee have if a provider routinely fails to
address reported violations of our rules? Should we require, in such
instances, that the compliance officer report the matter to the
Commission? Could a compliance officer truthfully certify that a
compliance program consistent with our rules has been maintained
throughout the certification period if reported violations of our rules
are routinely ignored by the provider? We seek comment on these
matters.

Evaluations of Recently Completed, Pending, and Planned Projects

30. We seek comment on requiring providers to conduct annually an
internal evaluation of recently completed, pending, and planned
deployment, upgrade, and maintenance projects affecting 500 or more
housing units. With respect to each such project, the internal
evaluation should consist of a comparison of the demographics of the
communities served by that project with the demographics of the
Metropolitan Statistical Area (MSA) encompassing those served
communities. The Centers for Disease Control and Prevention define MSA
as ``a geographic entity based on a county or a group of counties with
at least one urbanized area with a population of at least 50,000 and
adjacent counties with economic ties to the central area.'' While the
purpose of our proposal to require submission of annual reports to the
Commission is to promote greater transparency regarding what
communities are served by recently completed projects, the goal of our
proposal to require periodic internal evaluation of large-scale
projects is to facilitate close internal scrutiny of the provider's
policies and practices affecting broadband access, determine whether
those policies and practices advance or impede equal access to
broadband service, and promote accountability regarding policies and
practices that impede (or threaten to impede) equal access without
adequate justification. Moreover, while our proposal regarding annual
reporting would apply only to recently completed (or substantially
completed) projects of

[[Page 6483]]

a certain size, our proposal with respect to periodic internal
evaluations would also apply to pending and planned projects. We seek
comment on this proposal, and we specifically seek comment on: (1) how
we should define ``pending'' projects and ``planned'' projects under
this proposal; and (2) whether MSAs are the appropriate geographic
comparator for the internal evaluation of covered projects.
31. We do not propose to prescribe the manner in which providers
compare the demographics of served communities with the demographics of
the MSAs encompassing those communities. We would require only that
such comparisons be conducted with analytical rigor and in good faith
using official data and reports of the U.S. Census Bureau, and that
they be reasonably designed to uncover meaningful disparities between
the reported demographics of served communities and the reported
demographics of the MSAs encompassing those served communities.
According to the Census Bureau, an MSA consists of one or more counties
that contain a city of 50,000 or more inhabitants, or contain a Census
Bureau-defined urbanized area (UA) and have a total population of at
least 100,000 (75,000 in New England). While we would never expect
precise numerical alignment with respect to any single project, we
believe that routinely conducting these comparisons will give providers
a better sense of what communities are being served (and not served) by
their projects over time, and will help to ``smoke out'' policies and
practices that discriminate without adequate justification. We seek
comment on this proposal.

Evaluations of Policies and Practices

32. Evaluation and Assessment of Policies and Practices. We seek
comment on requiring providers to: (1) periodically evaluate their
policies and practices affecting broadband access to determine whether
they differentially impact consumers' access to broadband internet
access service based on income level, race, ethnicity, color, religion,
or national origin, or otherwise impede equal access to broadband
internet access service; and (2) report to senior management annually,
and in writing, regarding the results of such evaluation. As noted
above, the proposed requirement that providers periodically determine
the demographics of communities served by designated broadband projects
is intended to permit an assessment, over time, of whether the
provider's broadband-related policies are effectively impeding equal
access to broadband service. Those assessments should lead to critical
examination of whether any policies and practices impeding such equal
access are necessary and justified by legitimate business
considerations and whether alternative policies and practices might
reasonably be adopted and implemented in their place. We propose that
compliance officers and/or committees be required to conduct such
annual assessments and report annually to senior management, in
writing, the results of such evaluations and assessments. This process
will require providers to closely scrutinize policies and practices
producing disparate impacts on prohibited bases or otherwise impeding
equal access to broadband service. We believe these requirements are
necessary to ensure that equal access to broadband service remains a
top priority for providers, in fulfillment of Congress's instruction
that the Commission ``take steps to ensure that all people of the
United States benefit from equal access to broadband internet access
service.'' We seek comment on this proposal.

Certification

33. Certification of Completion. We propose requiring providers to
submit, in conjunction with the annual report proposed above, a
certification that a compliance program satisfying all requirements
finally adopted by the Commission was in place during the calendar year
covered by the annual report. We propose that the certification be
attested to by an officer and engineer as occurs with respect to the
BDC, and that the provider's designated compliance officer (or the
chair of the compliance committee) certify the same to the certifying
officer and engineer. We seek comment on this proposal, including
whether the designated compliance officer (or chair of the compliance
committee) should be required to provide a certification directly to
the Commission.

Exemptions

34. We also seek comment on whether any providers should be
exempted from the proposed requirement to implement and maintain an
internal compliance program meeting specified standards based on their
size, footprint, or niche service area. Should we exempt providers that
primarily serve consumers at the rural and Tribal level and, if so,
why? What other providers should be exempted from these requirements,
under what circumstances, and why? We seek comment on requiring
providers who are entitled to an exemption under our rules to file a
certification of exemption in lieu of a certification of compliance in
conjunction with the annual report.

Recording and Retention Requirements

35. We seek comment on what records providers should be required to
retain, and for how long, relating to the internal assessments of the
projects described in the preceding paragraphs. Once a summary report
of the internal assessment for a specific project is completed, should
the provider be required to retain the underlying documents for some
period of time? Should there be different retention periods for the
summary reports than for the underlying documents?

Office of Civil Rights

36. We seek further, focused comment on establishing an Office of
Civil Rights, as both advocates and broadband service providers have
urged. In particular, we seek comment on the potential benefits
establishing such an office. For example, would such an office be
helpful in developing and maintaining the expertise to evaluate the
effects of Commission policy initiatives on historically marginalized
communities? Could it assist in determining when prohibited
discrimination has occurred and aid in developing remedies for such
discrimination? Might it help in evaluating claims and possible
patterns of digital discrimination of access? And could it aid in
monitoring informal complaints alleging digital discrimination of
access and other forms of prohibited discrimination, as well as in the
mediation process we have outlined in the Order? Why or why not? What
other benefits might be associated with establishing an Office of Civil
Rights? For example, could it work with broadband service providers to
proactively mitigate potential instances of prohibited discrimination?
Could such an office collaborate with broadband service providers and
Federal and state governments to develop broadband adoption and digital
literacy skills training that could be used on a nationwide basis?
Could such an office be employed to address other substantive
Commission policy issues and processes beyond matters arising under
section 60506? If so, what other issues might an Office of Civil Rights
oversee or how could it support other bureaus and offices in the
Commission? Finally, what are the potential challenges associated with
establishing an Office of Civil Rights? How should the Commission
address these challenges? What are the costs associated with
establishing an Office of

[[Page 6484]]

Civil Rights? How should the Commission structure and staff such an
office? What other structural and organizational changes would be
required to establish such an office?

Other Efforts To Promote Digital Equity and Inclusion

37. Digital Equity. The Commission, as part of its continuing
effort to advance digital equity for all, including people of color,
persons with disabilities, persons who live in rural or Tribal areas,
and others who have been historically underserved, marginalized, and
adversely affected by persistent poverty and inequality, invites
comments on any equity-related considerations and benefits (if any)
that may be associated with the proposals and issues discussed herein.
We define the term ``equity'' consistent with Executive Order 13985 as
the consistent and systematic fair, just, and impartial treatment of
all individuals, including individuals who belong to underserved
communities that have been denied such treatment, such as Black,
Latino, and Indigenous and Native American persons, Asian Americans and
Pacific Islanders and other persons of color; members of religious
minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+)
persons; persons with disabilities; persons who live in rural areas;
and persons otherwise adversely affected by persistent poverty or
inequality. Specifically, we seek comment on how our proposals may
promote or inhibit advances in diversity, equity, inclusion, and
accessibility, as well as the scope of the Commission's relevant legal
authority.

Procedural Matters

38. We have also prepared an Initial Regulatory Flexibility
Analysis (IRFA) concerning the potential impact of the rule and policy
changes contained in the Further Notice. Comments must be filed by the
deadlines for comments on the Further Notice indicated on the first
page of this document and must have a separate and distinct heading
designating them as responses to the IRFA.
39. Paperwork Reduction Act. The Further Notice also may contain
proposed new and revised information collection requirements. The
Commission, as part of its continuing effort to reduce paperwork
burdens, invites the general public and OMB to comment on the
information collection requirements contained in this document, as
required by the Paperwork Reduction Act of 1995, Public Law 104-13. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment
on how we might further reduce the information collection burden for
small business concerns with fewer than 25 employees.

Ordering Clauses

40. It is further ordered that the Commission's Office of the
Secretary shall send a copy of this Report and Order and Further Notice
of Proposed Rulemaking, including the Final Regulatory Flexibility
Analysis and Initial Regulatory Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small Business Administration.

Initial Regulatory Flexibility Analysis

41. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on small entities by the policies and rules proposed in this Further
Notice of Proposed Rulemaking (Further Notice). The Commission requests
written public comments on this IRFA. Comments must be identified as
responses to the IRFA and must be filed by the deadlines for comments
provided on the first page of the Further Notice. The Commission will
send a copy of the Further Notice, including this IRFA, to the Chief
Counsel for Advocacy of the Small Business Administration (SBA). In
addition, the Further Notice and IRFA (or summaries thereof) will be
published in the Federal Register.

Need for, and Objectives of, the Proposed Rules

42. In the Further Notice, the Commission takes additional steps to
advance its efforts to fulfill the congressional direction in section
60506 of the Infrastructure Act to facilitate equal access to broadband
internet access service by preventing digital discrimination of access,
proposing rules that will address disparities in broadband availability
and service offerings. Specifically, the Further Notice seeks comment
on affirmative obligations that might be undertaken by broadband
providers by complementing proposed rules adopted in the Report and
Order, with a focus on broadband providers' day-to-day business
practices that might, in some instances, differentially impact
consumers' access to broadband on prohibited bases. The Further Notice
also proposes to require the reporting of this information on a state-
by-state or territory-by-territory basis in a yearly supplement to the
BDC so the public can see not only where broadband coverage is
provided, but where and how providers are currently investing in their
broadband networks and what communities are benefiting from those
investments. Additionally, the Further Notice proposes to require
providers to establish formal compliance programs related to digital
discrimination of access and to conduct regular, internal assessments
of what communities are served (and not served) by recently completed,
pending, and planned large-scale broadband projects and whether their
relevant policies and practices might differentially impact consumers'
access to broadband service.

Legal Basis

43. The proposed action is authorized pursuant to sections 1, 2,
4(i)-(j), 303(r) of the Communications Act of 1934, as amended, 47
U.S.C. 151, 152, 154(i)-(j), 303(r), and section 60506 of the
Infrastructure Investment and Jobs Act, Public Law 117-58, 135 Stat.
429, 1245-46 (2021), codified at 47 U.S.C. 1754.

Description and Estimate of the Number of Small Entities to Which the
Proposed Rules Will Apply

44. The RFA directs agencies to provide a description of and, where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules and by the rule revisions on which the
Further Notice seeks comment, if adopted. The RFA generally defines the
term ``small entity'' as having the same meaning as the terms ``small
business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small-business concern'' under the Small Business
Act. A ``small-business concern'' is one which: (1) is independently
owned and operated; (2) is not dominant in its field of operation; and
(3) satisfies any additional criteria established by the SBA.
45. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. We therefore describe, at the
outset, three broad groups of small entities that could be directly
affected herein. First, while there are industry specific size
standards for small businesses that are used in the regulatory
flexibility analysis, according to data from the Small Business
Administration's (SBA) Office of Advocacy, in general a small business
is an independent business having fewer than 500 employees. These types
of small businesses represent 99.9% of all businesses in the United

[[Page 6485]]

States, which translates to 32.5 million businesses.
46. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000
or less to delineate its annual electronic filing requirements for
small exempt organizations. Nationwide, for tax year 2020, there were
approximately 447,689 small exempt organizations in the U.S. reporting
revenues of $50,000 or less according to the registration and tax data
for exempt organizations available from the IRS.
47. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' U.S. Census
Bureau data from the 2017 Census of Governments indicate there were
90,075 local governmental jurisdictions consisting of general purpose
governments and special purpose governments in the United States. Of
this number, there were 36,931 general purpose governments (county,
municipal, and town or township) with populations of less than 50,000
and 12,040 special purpose governments--independent school districts
with enrollment populations of less than 50,000. Accordingly, based on
the 2017 U.S. Census of Governments data, we estimate that at least
48,971 entities fall into the category of ``small governmental
jurisdictions.''
48. Wired Telecommunications Carriers. The U.S. Census Bureau
defines this industry as establishments primarily engaged in operating
and/or providing access to transmission facilities and infrastructure
that they own and/or lease for the transmission of voice, data, text,
sound, and video using wired communications networks. Transmission
facilities may be based on a single technology or a combination of
technologies. Establishments in this industry use the wired
telecommunications network facilities that they operate to provide a
variety of services, such as wired telephony services, including VoIP
services, wired (cable) audio and video programming distribution, and
wired broadband internet services. By exception, establishments
providing satellite television distribution services using facilities
and infrastructure that they operate are included in this industry.
Wired Telecommunications Carriers are also referred to as wireline
carriers or fixed local service providers.
49. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 5,183 providers
that reported they were engaged in the provision of fixed local
services. Of these providers, the Commission estimates that 4,737
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
50. Local Exchange Carriers (LECs). Neither the Commission nor the
SBA has developed a size standard for small businesses specifically
applicable to local exchange services. Providers of these services
include both incumbent and competitive local exchange service
providers. Wired Telecommunications Carriers is the closest industry
with an SBA small business size standard. Wired Telecommunications
Carriers are also referred to as wireline carriers or fixed local
service providers. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 5,183 providers
that reported they were fixed local exchange service providers. Of
these providers, the Commission estimates that 4,737 providers have
1,500 or fewer employees. Consequently, using the SBA's small business
size standard, most of these providers can be considered small
entities.
51. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the
Commission nor the SBA have developed a small business size standard
specifically for incumbent local exchange carriers. Wired
Telecommunications Carriers is the closest industry with an SBA small
business size standard. The SBA small business size standard for Wired
Telecommunications Carriers classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 show that there
were 3,054 firms in this industry that operated for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, based on Commission data in the 2021 Universal Service
Monitoring Report, as of December 31, 2020, there were 1,227 providers
that reported they were incumbent local exchange service providers. Of
these providers, the Commission estimates that 929 providers have 1,500
or fewer employees. Consequently, using the SBA's small business size
standard, the Commission estimates that the majority of incumbent local
exchange carriers can be considered small entities.
52. Competitive Local Exchange Carriers (LECs). Neither the
Commission nor the SBA has developed a size standard for small
businesses specifically applicable to local exchange services.
Providers of these services include several types of competitive local
exchange service providers. Wired Telecommunications Carriers is the
closest industry with a SBA small business size standard. The SBA small
business size standard for Wired Telecommunications Carriers classifies
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms that operated in this
industry for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. Additionally, based on Commission data in the
2021 Universal Service Monitoring Report, as of December 31, 2020,
there were 3,956 providers that reported they were competitive local
exchange service providers. Of these providers, the Commission
estimates that 3,808 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
53. We have included small incumbent LECs in this present RFA
analysis. As noted above, a ``small business'' under the RFA is one
that, inter alia, meets the pertinent small-business size standard
(e.g., a telephone communications business having 1,500 or fewer
employees) and ``is not dominant in its field of operation.'' The SBA's
Office of Advocacy contends that, for RFA purposes, small incumbent
LECs are not dominant in their field of operation because any such
dominance is not ``national'' in scope. We have therefore included
small incumbent LECs in this RFA analysis, although we emphasize that
this RFA action has no

[[Page 6486]]

effect on Commission analyses and determinations in other, non-RFA
contexts.
54. Interexchange Carriers (IXCs). Neither the Commission nor the
SBA have developed a small business size standard specifically for
Interexchange Carriers. Wired Telecommunications Carriers is the
closest industry with a SBA small business size standard. The SBA small
business size standard for Wired Telecommunications Carriers classifies
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms that operated in this
industry for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. Additionally, based on Commission data in the
2021 Universal Service Monitoring Report, as of December 31, 2020,
there were 151 providers that reported they were engaged in the
provision of interexchange services. Of these providers, the Commission
estimates that 131 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, the
Commission estimates that the majority of providers in this industry
can be considered small entities.
55. Cable System Operators (Telecom Act Standard). The
Communications Act of 1934, as amended, contains a size standard for a
``small cable operator,'' which is ``a cable operator that, directly or
through an affiliate, serves in the aggregate fewer than one percent of
all subscribers in the United States and is not affiliated with any
entity or entities whose gross annual revenues in the aggregate exceed
$250,000,000.'' For purposes of the Telecom Act Standard, the
Commission determined that a cable system operator that serves fewer
than 677,000 subscribers, either directly or through affiliates, will
meet the definition of a small cable operator based on the cable
subscriber count established in a 2001 Public Notice. Based on industry
data, only six cable system operators have more than 677,000
subscribers. Accordingly, the Commission estimates that the majority of
cable system operators are small under this size standard. We note
however, that the Commission neither requests nor collects information
on whether cable system operators are affiliated with entities whose
gross annual revenues exceed $250 million. Therefore, we are unable at
this time to estimate with greater precision the number of cable system
operators that would qualify as small cable operators under the
definition in the Communications Act.
56. Other Toll Carriers. Neither the Commission nor the SBA has
developed a definition for small businesses specifically applicable to
Other Toll Carriers. This category includes toll carriers that do not
fall within the categories of interexchange carriers, operator service
providers, prepaid calling card providers, satellite service carriers,
or toll resellers. Wired Telecommunications Carriers is the closest
industry with a SBA small business size standard. The SBA small
business size standard for Wired Telecommunications Carriers classifies
firms having 1,500 or fewer employees as small. U.S. Census Bureau data
for 2017 show that there were 3,054 firms in this industry that
operated for the entire year. Of this number, 2,964 firms operated with
fewer than 250 employees. Additionally, based on Commission data in the
2021 Universal Service Monitoring Report, as of December 31, 2020,
there were 115 providers that reported they were engaged in the
provision of other toll services. Of these providers, the Commission
estimates that 113 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
57. Wireless Telecommunications Carriers (except Satellite). This
industry comprises establishments engaged in operating and maintaining
switching and transmission facilities to provide communications via the
airwaves. Establishments in this industry have spectrum licenses and
provide services using that spectrum, such as cellular services, paging
services, wireless internet access, and wireless video services. The
SBA size standard for this industry classifies a business as small if
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show
that there were 2,893 firms in this industry that operated for the
entire year. Of that number, 2,837 firms employed fewer than 250
employees. Additionally, based on Commission data in the 2021 Universal
Service Monitoring Report, as of December 31, 2020, there were 797
providers that reported they were engaged in the provision of wireless
services. Of these providers, the Commission estimates that 715
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
58. Satellite Telecommunications. This industry comprises firms
``primarily engaged in providing telecommunications services to other
establishments in the telecommunications and broadcasting industries by
forwarding and receiving communications signals via a system of
satellites or reselling satellite telecommunications.'' Satellite
telecommunications service providers include satellite and earth
station operators. The SBA small business size standard for this
industry classifies a business with $38.5 million or less in annual
receipts as small. U.S. Census Bureau data for 2017 show that 275 firms
in this industry operated for the entire year. Of this number, 242
firms had revenue of less than $25 million.\1\ Additionally, based on
Commission data in the 2021 Universal Service Monitoring Report, as of
December 31, 2020, there were 71 providers that reported they were
engaged in the provision of satellite telecommunications services. Of
these providers, the Commission estimates that approximately 48
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, a little more than of these providers can
be considered small entities.
---------------------------------------------------------------------------

\1\ Id. The available U.S. Census Bureau data does not provide a
more precise estimate of the number of firms that meet the SBA size
standard. We also note that according to the U.S. Census Bureau
glossary, the terms receipts and revenues are used interchangeably,
see <a href="https://www.census.gov/glossary/#term_ReceiptsRevenueServices">https://www.census.gov/glossary/#term_ReceiptsRevenueServices</a>.
---------------------------------------------------------------------------

59. Local Resellers. Neither the Commission nor the SBA have
developed a small business size standard specifically for Local
Resellers. Telecommunications Resellers is the closest industry with a
SBA small business size standard. The Telecommunications Resellers
industry comprises establishments engaged in purchasing access and
network capacity from owners and operators of telecommunications
networks and reselling wired and wireless telecommunications services
(except satellite) to businesses and households. Establishments in this
industry resell telecommunications; they do not operate transmission
facilities and infrastructure. Mobile virtual network operators (MVNOs)
are included in this industry. The SBA small business size standard for
Telecommunications Resellers classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
1,386 firms in this industry provided resale services for the entire
year. Of that number, 1,375 firms operated with fewer than 250
employees. Additionally, based on Commission data in the 2021 Universal
Service Monitoring Report, as of December 31,

[[Page 6487]]

2020, there were 293 providers that reported they were engaged in the
provision of local resale services. Of these providers, the Commission
estimates that 289 providers have 1,500 or fewer employees.
Consequently, using the SBA's small business size standard, most of
these providers can be considered small entities.
60. Toll Resellers. Neither the Commission nor the SBA have
developed a small business size standard specifically for Toll
Resellers. Telecommunications Resellers is the closest industry with an
SBA small business size standard. The Telecommunications Resellers
industry comprises establishments engaged in purchasing access and
network capacity from owners and operators of telecommunications
networks and reselling wired and wireless telecommunications services
(except satellite) to businesses and households. Establishments in this
industry resell telecommunications; they do not operate transmission
facilities and infrastructure. Mobile virtual network operators (MVNOs)
are included in this industry. The SBA small business size standard for
Telecommunications Resellers classifies a business as small if it has
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that
1,386 firms in this industry provided resale services for the entire
year. Of that number, 1,375 firms operated with fewer than 250
employees. Additionally, based on Commission data in the 2022 Universal
Service Monitoring Report, as of December 31, 2021, there were 457
providers that reported they were engaged in the provision of toll
services. Of these providers, the Commission estimates that 438
providers have 1,500 or fewer employees. Consequently, using the SBA's
small business size standard, most of these providers can be considered
small entities.
61. All Other Telecommunications. This industry is comprised of
establishments primarily engaged in providing specialized
telecommunications services, such as satellite tracking, communications
telemetry, and radar station operation. This industry also includes
establishments primarily engaged in providing satellite terminal
stations and associated facilities connected with one or more
terrestrial systems and capable of transmitting telecommunications to,
and receiving telecommunications from, satellite systems. Providers of
internet services (e.g. dial-up ISPs) or voice over internet protocol
(VoIP) services, via client-supplied telecommunications connections are
also included in this industry. The SBA small business size standard
for this industry classifies firms with annual receipts of $35 million
or less as small. U.S. Census Bureau data for 2017 show that there were
1,079 firms in this industry that operated for the entire year. Of
those firms, 1,039 had revenue of less than $25 million. Based on this
data, the Commission estimates that the majority of ``All Other
Telecommunications'' firms can be considered small.

Description of Projected Reporting, Recordkeeping, and Other Compliance
Requirements for Small Entities

62. The Further Notice proposes two sets of affirmative obligations
for broadband providers in furtherance of our mandate to facilitate
equal access to broadband internet access service, including by
preventing digital discrimination of access by requiring broadband
providers to: (1) submit an annual, publicly available supplement to
the Broadband Data Collection (BDC) describing, on a state-by-state or
territory-by-territory basis, any large-scale broadband deployment,
upgrade, and maintenance projects that were completed or substantially
completed during the preceding calendar year and the communities served
by such projects; and (2) establish a mandatory internal compliance
program requiring regular internal assessment of (a) what communities
are served by recent, pending and planned large-scale projects and (b)
whether the provider's broadband-related policies and practices might
differentially impact consumers' access to broadband without adequate
technical or economic justification.
63. The Further Notice proposes to require the annual report as a
supplement to the year-end BDC, and we assume that broadband providers
would use the same criteria and data fields that are used in the BDC.
The Commission seeks comment on whether the experts who certify the BDC
submissions should also be required to certify the proposed annual
report. The Commission also proposes that each provider adopt and
maintain a formal internal compliance program that includes, at a
minimum, elements from previously effective compliance programs: (1)
developing and implementing written policies and procedures; (2)
designating a compliance officer and/or compliance committee; (3)
conducting effective training and education regarding the purposes and
operation of the compliance program; (4) developing effective lines of
reporting and communication; and (5) conducting internal monitoring and
auditing. We propose to grant each broadband provider the flexibility
to develop and maintain a plan that contains the required elements and
serves our intended purposes without prescribing a particular formula
as to how each required element should be implemented.

Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered

64. The RFA requires an agency to describe any significant,
specifically small business, alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): ``(1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rules for such small entities; (3) the
use of performance rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.''
65. The Further Notice seeks comment on whether any of the proposed
filing, recordkeeping and reporting requirements can be minimized for
small entities. For example, we request comment on whether existing
data may be used with or in place of the proposed annual report to
promote transparency in broadband investments. We also seeks comment on
whether any broadband providers should be exempted from the requirement
to submit an annual report or to implement and maintain an internal
compliance program based on their size, footprint, or service area,
including rural and Tribal areas. Finally, the Commission seeks comment
on whether any of the costs associated with our digital discrimination
of access compliance requirements can be alleviated for small entities.

Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules

None.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2024-01996 Filed 1-31-24; 8:45 am]
BILLING CODE 6712-01-P

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