New FCC Rules to Combat Digital Discrimination Will Soon Take Effect

On November 15, 2023, the FCC adopted a Report and Order1 regarding digital discrimination to promote and facilitate equal access to broadband internet services. The majority of those rules will soon take effect, on March 22, 2024.

The Report and Order established a framework to facilitate equal access to broadband and internet access service by preventing digital discrimination and creating a dedicated digital discrimination complaint process for consumers and others to use. These rules apply to all broadband service access providers, as well any person or entity that could affect consumer access to internet services, and specifically cover all activities related to the provision of internet access service, including construction, service quality, pricing, terms of service and termination or suspension of service, marketing and advertising, promotions, upgrades, technical service, onsite service, and customer service.

The FCC defines “digital discrimination of access” as “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.” This definition encompasses both practices that intend to have a discriminatory impact, but also those that have a discriminatory effect. The FCC will maintain a presumption of compliance for policies and practices that are compliant with NTIA’s BEAD Program and the FCC’s USF Program.

The rules will be enforced by the FCC on its own initiative and eventually, through a dedicated informal complaint process. Where the Commission determines a violation has occurred, it will pursue remedies and penalties, including monetary forfeitures. However, the FCC “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.” A covered entity may seek guidance from the FCC on whether a current or prospective policy or practice is permissible in terms of its impact on broadband access.

The FCC also issued a Notice of Proposed Rulemaking2 that seeks comment on several proposals that would make it more transparent as to what communities are served or unserved by broadband service providers. First, the FCC asks whether providers should be required to submit an annual, publicly available supplement to the Broadband Data Collection that 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 that are expected to affect the availability or quality of broadband service at 500 or more housing units. Second, the Commission seeks comment on whether it should impose an obligation on broadband providers to establish a mandatory internal compliance program requiring regular internal assessments of what communities are being serviced. Lastly, the NPRM also invites comments on the potential benefits and costs of establishing an Office of Civil Rights within the Commission.

Comments are due on or before March 4, 2024, and Reply Comments are due on or before April 1, 2024. If you would like to file comments or would like to discuss the new rules further, please contact Greg Whiteaker at [email protected] or Shannon Forchheimer at [email protected]