FCC Releases Digital Discrimination NPRM

On December 22, 2022, the FCC released the Notice of Proposed Rulemaking (“NPRM”) seeking comment on proposals to address digital discrimination of access to broadband internet access service, as mandated by the Infrastructure Investment and Jobs Act (“IIJA”).  The item was adopted at the December Open Commission Meeting.

The IIJA required the commission to adopt rules to facilitate equal access to broadband internet access service within two years of its enactment.  In satisfying that obligation, the Commission is required to consider the technical and economic feasibility of ensuring equal access to broadband and ensure that the rules are aimed at “(1) preventing digital discrimination of access based on income level, race, ethnicity, color, religion or national origin; and (2) identifying necessary steps for the Commission[] to take to eliminate discrimination described in paragraph (1).”

In furtherance of these objectives, the NPRM seeks comment on the following:

  • The Definition of “Digital Discrimination of Access”: The NPRM proposes that “digital discrimination of access” be defined as one or a combination of the following: (1) “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”; and/or (2) “policies or practices, not justified by genuine issues of technical or economic feasibility, that are intended to differentially impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, color, religion, or national origin.”  The  NPRM seeks comment on this definition, including if this is the best way to interpret digital discrimination under the statute, whether to exclude actions or omissions justified by issues of technical or economic feasibility, and whether statutory interpretation mandates a different approach, among other things.  In addition, the NPRM seeks comment on the following components of the definition:
    • Disparate Impact and Disparate Treatment: The NPRM seeks common on whether to adopt a definition of digital discrimination based on disparate impact standard (i.e. discriminatory effect), disparate treatment standard (i.e. discriminatory intent), or both.  In particular, the NPRM seeks comment on whether the statutory language mandates a particular approach, whether there is precedent that mandates a particular approach, and how the listed characteristics in the statute should guide the standard, among other things.
    • Covered Services: The NPRM proposes limiting the focus to broadband internet access service.  The NPRM seeks comment on this proposal, including the scope of services individuals use when they experience digital discrimination, what technologies the definition should include (DSL, cable, fiber, wireless, or satellite), and whether to include other services, such as communications services delivered over broadband in the definition, among other things.
    • Covered Entities: The NPRM seeks comment on the types of entities that should be covered by the definition, including whether the rules should be applicable to a broader range of entities than broadband providers.
    • Prohibited Practices and Policies:  The NPRM seeks comment on the policies and practices that lead to digital discrimination, including what policies and practices should be covered by the definition (e.g. late fees, data caps, equipment rentals and installation, etc.).
    • Technical and Economic Feasibility: The NPRM seeks comment on how the definition should take into account justifications on the basis of technical and economic feasibility, including whether to establish safe harbors, establish a case-by-case standard, or both.
    • Consumers: the NPRM seeks comment on how to identify those who may experience digital discrimination of access, including what consumer should be covered, and whether it should be limited to current subscribers.
    • Listed Characteristics: the NPRM proposes to include the same characteristics as those identified in the IIJA.  The Draft NPRM seeks comment on this proposal, including whether to include additional characteristics and whether to give further meaning to the characteristics listed, among other things.
    • Differential Impact: The NPRM seeks comment on the standards the FCC should use to determine when consumers face digital discrimination, relevant comparators, and data that should be considered, including the scope of inquiries when identifying instances of differential impact, the standards and methods, and geographic comparators, among other things.
  • Revisions to the Commission’s Informal Consumer Complaint Process: The NPRM proposes to revise the FCC’s 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.  The NPRM also proposes to make anonymized complaint data available to the public through the FCC’s Consumer Complaint Data Center to inform third party analyses.  The NPRM seeks comment on this proposal, including whether to collect demographic information, whether to validate complaints, and whether to make the data available to the public, among other things.
  • Adoption of Rules: The NPRM seeks comment on whether to adopt a broad prohibition on digital discrimination of access, and how to structure and enforce such a prohibition.  Specifically, the NPRM seeks comment on:
    • An Analytical Framework: The NPRM seeks comment on whether how to implement a Disparate Impact Framework and a Disparate Treatment Framework.  The NPRM proposes to model the Disparate Impact Framework on the standard for discrimination in federal courts which requires the complainant to make a prima facia case of discrimination, then the burden shifts to the respondent to establish a substantial, legitimate justification for the practice or policy, and finally the burden shifts back to the complainant to respond with an alternative policy that would achieve the goals of the existing policy but have less discriminatory affect.  The NPRM proposes to model the Disparate Treatment Framework on the McDonnell Douglas framework, which has three steps: (1) the complainant proves a prima facie case of discrimination by typically showing that they are a member of a protected group, were eligible for a service or employment opportunity, were denied or otherwise treated in an adverse manner, and that a similarly situated individual who is not a member of the protected group was treated better; (2) the burden then shifts to the defendant to articulate a legitimate, non-discriminatory reason for the challenged practice or action; and (3) if the defendant meets the burden to provide a legitimate, non-discriminatory reason, the burden shifts back to the plaintiff to demonstrate that this reason is pretext for discrimination.  The NPRM seeks comment on these proposals and whether there are other frameworks the FCC should consider.
    • Enforcement: the NPRM seeks comment on how to enforce a broad prohibition on digital discrimination, including their current enforcement capabilities, punishments and remedies, whether to establish a structured process to adjudicate formal complaints, and how to incorporate state and local officials and private rights of action, among other things.
    • Affirmative Obligations: The NPRM seeks comments on affirmative obligations the FCC could place on providers to address digital discrimination of access, including using Commission data to formulate plans, adopting provisions modeled on HUD’s fair housing act, and requiring providers to give information to subscribers, among other things.
    • Other Steps: The NPRM seeks comment on what actions the FCC should take in other policy areas to address digital discrimination of access.
    • Other Proposals in the Record: The NPRM seeks comment on additional proposals in the records, including actions that can be taken to address digital discrimination of access on Tribal lands, outreach, and organizational changes the Commission could make to promote efforts to address digital discrimination of access.
  • State and Local Model Polices and Best Practices: The NPRM proposes to adopt, as guidelines for states and localities, best practices to prevent digital discrimination and promote digital equity, as created by the Digital Equity and Inclusion Working Group.  The NPRM seeks comment on this proposal.
  • Other Efforts to Promote Digital Equity and Inclusion: The NPRM seeks comment on other efforts the FCC can take to advance digital equity for all.

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