Short title; table of contents

(a)

Short title

This Act may be cited as the

Anti Digital Redlining Act of 2021

. (b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings and purpose.

Sec. 3. Notice of inquiry to assess factors that indicate digital redlining is occurring.

Sec. 4. Rules required to prevent digital redlining.

Sec. 5. Public complaints at the Commission.

Sec. 6. Enforcement of antiredlining provision.

Sec. 7. Prohibition of ISP or MVPD exclusive agreements with multi-dwelling units.

Sec. 8. Study of the impact of franchising agreements on consumers and competition.

Sec. 9. No forbearance or waiver.

Sec. 10. No preemption of consistent State or local authority.

Sec. 11. Definitions.

Findings and purpose

(a)

Findings

Congress finds the following: (1)Many consumers pay as much for DSL as they do for fiber, despite fiber offering significantly faster speeds and greater reliability. (2)Internet service providers are less likely to upgrade to fiber as a transmission medium in low-income communities. Households where fiber networks are deployed have a median income 34 percent higher than those with only DSL. (3)Communities of color are more likely to have slower and less reliable internet service. This disparity creates significant barriers to accessing employment opportunities, educational opportunities, healthcare resources, and diminishes opportunities for civic engagement. (4)The creation of significant disparities in internet service within a geographic area imposes significant costs not only on the individuals with slower or less reliable service, but on government at the local, State and Federal level by requiring governments to provide non-digital as well as digital means of accessing benefits, paying bills, sharing information, and otherwise choosing between either offering redundant non-digital means of interaction or excluding residents without access to high speed, reliable broadband. (5)Communities with poor quality broadband have difficulty attracting businesses, attracting new residents, and have difficulty competing with communities with superior broadband options available. (6)Companies can deploy fiber to most lower income communities and generate sufficient revenue to recoup the cost of deployment. (7)Broadband is an essential service and consumers, regardless of income, race, ethnicity, color or national origin deserve affordable reliable broadband. (8)Competition between internet service providers within a specific neighborhood is an important means of ensuring quality service and lower prices to the residents of that neighborhood. By contrast, neighborhoods with a single provider often suffer from lower quality service and higher prices. (9)Internet service providers, State and local governments, and the Federal Communications Commission have all identified arrangements by ISPs between landlords, housing associations, and other relevant private entities designed (collectively landlords) to thwart access by competitors as a significant contributing factor to digital redlining by preventing or discouraging access to superior service and eliminating the threat of competition to the preferred provider. These arrangements may take the form of exclusive access for a single provider, discounts to residents on rent, utility payments, or other landlord generated charges, additional expenses to either the resident or the competing provider to access and install necessary equipment or inside wiring. Landlords may also impose restrictions on access by rival providers for purposes of marketing rival services, or otherwise limit communication between rival providers and residents. (10)Although the Federal Communications Commission formally prohibited express exclusive agreements between landlords and broadband providers in 2007, these arrangements continue to persist as a consequence of loopholes and the lack of an effective enforcement mechanism to ensure swift access of willing competitors to willing customers. (11)Even where local and State authorities have reached agreements with competing internet service providers to deploy in neighborhoods suffering redlining, the presence of these agreements has thwarted competitive entry and aggravated digital redlining. (12)As a consequence of agreements between landlords and internet service providers, Americans can lose the benefits of competition, leading to higher prices and poorer service. (13)Traditionally, wireless technologies have been less subject to digital redlining because a single tower can cover an area of many miles. Newer wireless technologies, such as 5G, employ towers with much smaller coverage areas—sometimes requiring multiple towers to provide adequate coverage within a neighborhood. This has generated concern that, without Congressional action, communities that now suffer digital redlining from wireline services may suffer similar wireless digital redlining in the future. (14)Easements and access to private property for the purpose of providing critical and competing services are a well-established regulatory tool, and do not constitute an unconstitutional taking. (b)

Purpose

It is the purpose of this Act— (1)to identify and remedy digital redlining, regardless of the level of competition in the market as a whole, by ensuring all Americans, especially those in traditionally underserved or marginalized communities, have access to competing broadband networks at the same quality of service, at reasonable prices, as available in other similarly situated communities with higher median incomes or different demographic makeup; (2)to empower and require the Federal Communications Commission to identify what constitutes digital redlining, and to empower and require the Commission to enact regulations designed to eliminate digital redlining; and (3)to enable competing broadband providers frustrated by exclusive arrangements between rival providers and landlords to serve willing customers.

Notice of inquiry to assess factors that indicate digital redlining is occurring

Not later than 180 days after the date of the enactment of this Act, the Commission shall issue a notice of inquiry that seeks public comment on the following: (1)Criteria necessary to determine where ISPs are not upgrading systems or deploying new systems capable of supporting robust broadband access of comparable quality with the broader community. (2)Criteria to define the granularity of the geographic area necessary to determine whether discriminatory factors are being used to delay deployment of robust broadband. (3)The reasons ISPs use to determine where facilities are upgraded to provide robust broadband and what factors deter deployment in those granular areas that are not served. (4)The disparity investment in high-income areas compared to low-income areas within the geographic service area of an ISP. (5)Disparity of investment based on race. (6)Availability of fiber to the home, or deployment of fiber-to-the-curb or headend, within a geographic service area. (7)Degradation in quality of service within geographic service area over a given period of time. (8)Tier flattening in rural and urban service areas. (9)Network resiliency issues, including frequency of outages. (10)The reliability of networks with respect to the recovery of outages.

Rules required to prevent digital redlining

(a)

Rules required

Not later than 2 years after the date of the enactment of this Act and based on the findings from the notice of inquiry under section 3, the Commission shall promulgate rules that do the following: (1)Overcome identified barriers from such notice of inquiry, including rules to prevent discrimination of access based on income level, race, color, religion, or national origin. (2)Define the granularity of the geographic area in which the Commission considers compliance with the rules adopted, taking into account whether information at a census-block level or a more discrete level is needed to identify areas where redlining is occurring. (3)Determine what factors would permit an ISP to not deploy to the entirety of a clearly defined geographic area with comparable robust broadband service, taking into account that deployment planning for areas may proceed in differing stages. In developing this determination, the Commission shall establish a process by which a provider may request an exemption from a requirement to deploy robust broadband to the entirety of a clearly defined geographic area upon a showing that factors other than income level, race, color, religion, or national origin are the causes of the inability to deploy broadband. (b)

Commission policies

The Commission shall ensure that the policies of the Commission promote equal access to robust broadband by prohibiting deployment discrimination based on the income level of an area, the predominant race or ethnicity composition of an area, or other factors the Commission determines based on the findings in the record developed from this any rule promulgated under this section and the notice of inquiry under section 3.

Public complaints at the Commission

An individual may file a complaint using the public complaint system of the Commission for a violation of this Act. A complaint shall specify which provision of this Act or rule of the Commission is allegedly violated. The Commission shall adopt such rules as are necessary to facilitate the filing and enforcement of any such complaint.

Enforcement of antiredlining provision

(a)

Commission orders

The Commission may issue an order to remedy a violation of a rule issued pursuant to section 4, which may include any of the following: (1)An order to provide interconnection to any other ISP willing to provide service to the area found to be redlined and to whatever additional area the Commission may determine is necessary to make service to the redlined area reasonably profitable and sustainable. (2)An order to compel an ISP to provide service to the area found to be redlined— (A)which shall detail the services required to be offered and may require that the prices offered for such services be just, reasonable, and affordable to the residents of the relevant geographic area; and (B)which may not threaten the commercial viability of the ISP. (3)An order to require a party not subject to the jurisdiction of the Commission to provide access to any physical premises, wiring, or facility. (4)Any other relief or penalty authorized under this Act. (b)

Federal funds

(1)

In general

For any ISP that receives Federal funds on or after the date of the enactment of this section for the purpose of providing service to a geographic area that includes an area subject to redlining, the Commission shall assess the cost of provision of robust broadband to the redlined area and shall require the ISP to return the funds for that portion of the grant that should have provided service to that area. The Commission shall include interest from the date of the disbursement of the Federal funds to the date of payment for any funds returned under this paragraph. (2)

Use of funds

The Commission may use any funds returned under paragraph (1) for any broadband deployment or digital inclusion fund supervised by the Commission.

Prohibition of ISP or MVPD exclusive agreements with multi-dwelling units

(a)

Exclusive agreements prohibited

An ISP and MVPD may not, individually or jointly, enter into an agreement with a multi-dwelling unit that limits the ability of an ISP or MVPD (or that has the effect of such limitation) from serving a resident of the MDU. Nor may an MDU unreasonably restrict access to an ISP or MVPD to which a resident subscribes. (b)

Incentives prohibited

A landlord may not offer an incentive to a resident to select a specific ISP or MVPD, or any action designed to prevent or discourage any resident from subscribing to any ISP or MVPD. (c)

Landlord inducement prohibited

An ISP or MVPD may not offer an inducement to a landlord that— (1)promotes or favors any ISP or MVPD with regard to marketing, obtaining or retaining residents of a multi-dwelling unit as subscribers; or (2)in any way discourage a resident of a multi-dwelling unit from subscribing to an ISP or MVPD the resident chooses. (d)

Public availability of agreements

An ISP or MVPD shall make any agreement made by an ISP or MVPD with a multi-dwelling unit available to the public. (e)

Access to premises, access to wiring

An ISP and MVPD shall have reasonable access to the premises of the multi-dwelling unit, and to any wiring or other resource or facility controlled by the multi-dwelling unit necessary to provide service. A multi-dwelling unit may require all ISPs or MVPDs to share a common set of conduits or wires to minimize the need for disruptive access and any requirement or charge for use of common conduits or wires— (1)shall be just, reasonable, and non-discriminatory; (2)does not impose an undue burden on an ISP or MVPD seeking to provide service; (3)does not unreasonably interfere with the ability of an ISP or MVPD to upgrade or repair its network; and (4)can accommodate the speed, quality of service, and channel capacity the ISP or MVPD offers its subscribers. (f)

Regulations required

(1)

Commencement of proceeding

Not later than 180 days after the date of the enactment of this Act, the Commission shall commence a proceeding to determine the rules that are necessary to effectuate the prohibitions described in subsections (a) through (e). (2)

Issuance of rules

Not later than 180 days after the date on which the proceeding is commenced pursuant to paragraph (1), the Commission shall publish the rules in the Federal Register. The rules shall contain the following requirements: (A)

Compensation for access to and use of wiring

Ensure that a multi-dwelling unit or another owner of a premises, wiring, or other facility to which access is necessary to meet the requirements of this Act receive just and reasonable compensation for access to, and use of, their property, which shall be charged on a non-discriminatory basis to each ISP and MVPD seeking such access and use. A multi-dwelling unit may not charge an ISP or MVPD to enter the multi-dwelling unit to provide service within the residence of a subscriber, or to provide customer premise equipment that does not require any physical modification of the residence. (B)

Charges for damages, deposit, proof of insurance

A multi-dwelling unit, resident, or other entity that suffers damage to its physical property may demand reasonable compensation from the ISP or MVPD responsible, including the cost of repair. A multi-dwelling unit may require a reasonable deposit or proof, or both, of reasonable insurance coverage from an ISP or MVPD prior to providing access to the multi-dwelling unit. (C)

Restriction on charges

A multi-dwelling unit may not directly charge a subscriber for any expense accrued by an ISP or MVPD under this section. (D)

Subscriber charges

An ISP or MVPD may charge a subscriber for expenses accrued under this section by an ISP or MVPD. Any charges to a subscriber under this subparagraph are subject to section 642 of the Communications Act of 1934 (47 U.S.C. 562). (g)

Enforcement

(1)

Civil Action

A violation of this section or any rule issued under this section by any multi-dwelling unit, ISP, or MVPD shall be subject to a civil action by any resident of the multi-dwelling unit as if the multi-dwelling unit, ISP, or MVPD violated section 631(f) of the Communications Act of 1934 (47 U.S.C. 551(f)). This right to civil action may not be waived or subject to any arbitration requirement. (2)

Request for access

An ISP, MVPD, or resident of a multi-dwelling unit may file a request to the Commission, or to the Federal district court with jurisdiction over the multi-dwelling unit, for an order to allow access to the premises to install and provide service. (3)

Limitations to access

Any access granted under paragraph (2) shall be consistent with any applicable Commission rule, any applicable State or local building code, or any other additional consideration to protect life, safety, or the quality of life of other residents of the multi-dwelling unit. (4)

Deadline for issuing order

Not later than 90 days after the date on which a request for an order is filed under paragraph (2), the Commission or district court, as applicable, shall make a determination and issue the order or a denial of the order granting access. (5)

Service of process required

Any party that files a request for an order under paragraph (2) shall serve a copy of the request on the multi-dwelling unit, and on any ISP or MVPD that offers service to residents of the multi-dwelling unit.

Study of the impact of franchising agreements on consumers and competition

(a)

Proceeding by FCC

(1)

In general

(A)

Initiation

Not later than 1 year after the date of the enactment of this Act, the Commission shall initiate a proceeding to analyze the use of franchising agreements between telecommunications providers and municipal governments as well as the impact of these agreements on the price and quality of service for consumers and competition in the local market. (B)

Conclusion

Not later than 1 year after initiating the proceeding under subparagraph (A), the Commission shall conclude the proceeding. (2)

Matters for analysis

The analysis conducted under paragraph (1) shall include the following: (A)

Estimation of franchise agreements

An estimation of the number of franchising agreements in effect or entered into during the covered period. (B)

Consumer costs

An examination of the cost of broadband for consumers living in areas within the jurisdiction of the franchise and comparative analysis relative to comparable localities without such agreements. (C)

Quality of service

An examination of the quality of service provided to consumers living throughout the jurisdiction the franchise in order to identify any differences in quality of service provided in different regions within the same franchise. (3)

Covered period defined

In this subsection, the term covered period means the 6-year period that— (A)begins on the date that is 3 years before the date on which the proceeding under paragraph (1) is initiated; and (B)ends on the date that is 3 years after the date on which the proceeding is initiated. (b)

Report to congress

Not later than 120 days after concluding the proceeding under subsection (a)(1), the Commission shall publish on its website and submit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Energy and Commerce of the House of Representatives a report on the findings of the proceeding.

No forbearance or waiver

Notwithstanding sections 10 or 332 of the Communications Act of 1934 (47 U.S.C. 161, 332) or any other relevant provision of law, the Commission may not forbear from or waive any provision of this Act or forbear from or waive any rule issued pursuant to this Act.

10.

No preemption of consistent State or local authority

Nothing in this Act may be construed to preempt any consistent provision of State law or local regulation. The remedies provided for in this Act shall be in addition to any other remedy provided by common law, State law, or Federal law.

11.

Definitions

In this Act: (1)

Commission

The term Commission means the Federal Communications Commission. (2)

ISP

The term ISP or internet service provider means a provider of broadband internet access service (as defined by the Commission in section 8.1 of part 47, Code of Federal Regulations, or subsequent regulation). (3)

Multi-dwelling unit; MDU

The term multi-dwelling unit or MDU has the meaning given the term MDU in section 76.800(a) of part 47, Code of Federal Regulations, and any other entity the Commission determines to be necessary to effectuate the purposes of this Act. (4)

MVPD

The term MVPD means has the meaning given the term multichannel video programming distributor in section 602 of the Communications Act of 1934 (47 U.S.C. 522). (5)

Robust broadband

The term robust broadband means broadband of a symmetric speed sufficient to allow households to engage in online activities (including remote learning, remote telework, telehealth, and other services that consumers use broadband) for economic, educational, and other online activities, on multiple devices common to a family of four individuals living in a household.