[Federal Register Volume 88, Number 13 (Friday, January 20, 2023)]
[Proposed Rules]
[Pages 3681-3704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00551]


-----------------------------------------------------------------------

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Chapter I

[GN Docket No. 22-69; FCC 22-98; FR ID 122588]


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

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: In this document, the Federal Communications Commission 
(Commission or FCC) seeks comment on potential rules to address digital 
discrimination of access to broadband internet access service. The 
document proposes to adopt a definition of ``digital discrimination of 
access'' as that term is used in section 60506 of the Infrastructure 
Investment and Jobs Act and seeks comment on further details of the 
definition, including its scope and the appropriate legal standard. The 
document proposes to revise the Commission's informal consumer 
complaint process to accept complaints of digital discrimination of 
access, and it proposes to adopt model policies and best practices for 
states and localities combating digital discrimination. The document 
also seeks comment on other rules the Commission should adopt to 
facilitate equal access and combat digital discrimination, and the 
legal authority for adopted rules.

DATES: Comments are due on or before February 21, 2023, and reply 
comments are due on or before March 21, 2023.

ADDRESSES: 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 in this document. 
Comments and reply 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). Interested 
parties may file comments or reply comments, identified by GN Docket 
No. 22-69 and FCC 22-98 by any of the following methods:
     Electronic Filers: Comments may be filed electronically 
using the internet by accessing ECFS: https://www.fcc.gov/ecfs/.
     Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
     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.
     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.
     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, 35 FCC Rcd 2788 (March 19, 2020), 
https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.

FOR FURTHER INFORMATION CONTACT: For further information, please 
contact either Aur[eacute]lie Mathieu, Attorney Advisor, Competition 
Policy Division, Wireline Competition Bureau, at 
[email protected] or at (202) 418-2194.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking (NPRM) in GN Docket No. 22-69 and FCC 22-98, 
adopted on December 21, 2022, and released on December 22, 2022 The 
full

[[Page 3682]]

text of this document is available for public inspection at the 
following internet address: https://www.fcc.gov/document/fcc-takes-next-steps-combat-digital-discrimination-0. To request materials in 
accessible formats for people with disabilities (e.g. braille, large 
print, electronic files, audio format, etc.), send an email to 
[email protected] or call the Consumer & Governmental Affairs Bureau at 
(202) 418-0530 (voice), or (202) 418-0432 (TTY).

Synopsis

I. Introduction

    1. In this proposed rule we take the next step in our efforts to 
promote equal access to broadband for all people of the United States 
by seeking comment on potential rules to address digital discrimination 
of access to broadband internet access service. Equal access to high-
quality, affordable broadband internet service is critical for everyone 
living in the Nation, as we increasingly rely on broadband for work and 
education, healthcare and entertainment, and to stay connected with 
friends and family. As the broadband networks we depend on have become 
the backbone to many aspects of civic and commercial life, everyone 
needs access to robust, high-speed internet.
    2. In this proceeding, we seek to identify and address the harms 
experienced by historically excluded and marginalized communities; 
provide a grounding for meaningful policy reforms and systems 
improvements; and establish a framework for collaborative action to 
promote and facilitate digital opportunity for everyone. These goals 
follow express congressional direction in section 60506 of the 
Infrastructure Investment and Jobs Act (Infrastructure Act) to ``ensure 
that all people of the United States benefit from equal access to 
broadband,'' including by preventing and identifying steps to eliminate 
``digital discrimination of access based on income level, race, 
ethnicity, color, religion, or national origin.'' In March of this 
year, we launched a broad inquiry on how to construe the language in 
section 60506. In response, we received input from a broad array of 
stakeholders. We now seek further, focused comment on the statutory 
language and the proposals suggested in the record, as we create a 
framework for addressing digital discrimination.

II. Background

    3. On November 15, 2021, President Biden signed the Infrastructure 
Act into law. Among other provisions regarding broadband 
infrastructure, section 60506 of that Act set forth various 
requirements for the prevention and elimination of digital 
discrimination. Defining ``equal access'' as ``the equal opportunity to 
subscribe to an offered service that provides comparable speeds, 
capacities, latency, and other quality of service metrics in a given 
area, for comparable terms and conditions,'' section 60506 requires the 
Commission to adopt rules not later than two years after enactment ``to 
facilitate equal access to broadband internet access service.'' (The 
Infrastructure Act defines ``broadband internet access service'' for 
section 60506 and the remainder of Title V as having ``the meaning 
given the term in section 8.1(b) of [the Commission's rules], or any 
successor regulation.'' In this proposed rule, we use the terms 
``broadband'' and ``broadband internet access service'' 
interchangeably.) In satisfying that obligation, section 60506 requires 
us to consider ``the issues of technical and economic feasibility 
presented by that objective'' and directs our rules be 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).'' Section 60506 further 
directs the Commission to collaborate with the Attorney General to 
ensure that ``Federal policies promote equal access to robust broadband 
internet access service by prohibiting deployment discrimination''; to 
develop ``model policies and best practices that can be adopted by 
States and localities to ensure that broadband internet access service 
providers do not engage in digital discrimination''; and to revise our 
``public complaint process to accept complaints from consumers or other 
members of the public that relate to digital discrimination.''
    4. Pre-Existing Commission Authority To Address Discrimination and 
Promote Access. Section 60506 follows other authority granted to the 
Commission to address discrimination. Section 1 of the Communications 
Act of 1934, as amended (the Communications Act), codifies as one of 
the core purposes of the Commission ``to make available, so far as 
possible,'' a ``rapid, efficient, Nation-wide'' wire and radio 
communication service with adequate facilities ``to all of the people 
of the United States, without discrimination on the basis of race, 
color, religion, national origin, or sex.'' The Communications Act also 
includes authority in section 202(a) to prohibit unjust or unreasonable 
discrimination by common carriers in charges, practices, 
classifications, or regulations in connection with like communications 
services. The Universal Service provisions of section 254 promote 
access to telecommunications and information services for ``[c]onsumers 
in all regions of the Nation, including low-income consumers and those 
in rural, insular, and high cost areas.'' Section 706 requires the 
Commission to conduct regular inquiries as to whether ``advanced 
telecommunications capability is being deployed to all Americans in a 
reasonable and timely fashion.'' As part of the Commission's authority 
to grant applications for licenses through a competitive bidding 
process, section 309(j) requires the Commission to design a bidding 
process that will, among other things, ``promot[e] economic opportunity 
and competition'' by ensuring licenses are disseminated ``among a wide 
variety of applicants, including small businesses, rural telephone 
companies, and businesses owned by members of minority groups and 
women.'' Under section 541, local franchise authorities are required to 
``assure that access to cable service is not denied to any group of 
potential residential cable subscribers because of the income of the 
residents of the local area.'' And to implement section 257, the 
Commission adopted a ban on discrimination ``on the basis of race, 
color, religion, national origin or sex,'' in broadcast transactions.
    5. Commission Efforts To Bridge the Digital Divide. Our work to 
implement section 60506 complements and builds upon a robust history of 
Commission efforts to bridge the digital divide. The Commission has 
long used its Universal Service programs to promote access to 
telecommunications services and advanced information services at just 
and reasonable rates for all. These programs help deliver broadband 
services to low-income consumers and to unserved and underserved 
communities in rural and insular areas, and provide support in various 
ways: one offers low-income consumers discounts on voice service or 
broadband internet access service; others provide funding to eligible 
schools and libraries for affordable broadband services to help connect 
students and members of local communities or provide funding for health 
care providers to ensure that patients have access to broadband enabled 
healthcare services; and, because some areas may lack network 
infrastructure, one program offers subsidies to providers to build out 
and

[[Page 3683]]

deploy broadband networks. Since 2020, the Commission also has received 
congressional appropriations to establish the Emergency Broadband 
Benefit (EEB) Program and its successor, the Affordable Connectivity 
Program (ACP), which provides monthly discounts for broadband services 
and connected devices for qualifying households; and the Emergency 
Connectivity Fund (ECF) and COVID-19 Telehealth Programs, which have, 
respectively, provided funding to eligible schools and libraries for 
broadband services and connected devices for use by students, school 
staff, or library patrons and health care providers for 
telecommunications services, information services and connected 
devices. The Emergency Broadband Benefit and Affordable Connectivity 
Programs alone have helped provide affordable broadband to more than 15 
million qualifying households.
    6. We have also explored and taken action on issues that may 
uniquely impact broadband service in underserved communities. In March 
2021, the Public Safety and Homeland Security Bureau refreshed the 
record in a proceeding regarding network resiliency during disasters, 
including in communities with vulnerable populations. In February of 
this year, we adopted rules addressing certain practices in apartments, 
public housing, office buildings, and other multi-tenant buildings that 
limit competition for broadband service in those buildings. And in 
March of this year, the FCC released its Strategic Plan which reflects 
goals to help bring affordable, reliable, high-speed broadband to 100 
percent of the country and to gain a deeper understanding of how our 
rules, policies, and programs may promote or inhibit advances in 
diversity, equity, inclusion, and accessibility.
    7. Communications Equity and Diversity Council. On June 29, 2021, 
the Commission chartered the Communications Equity and Diversity 
Council (CEDC). (In chartering the CEDC, the Commission renewed the 
charter of the Advisory Committee on Diversity and Digital Empowerment 
under a new name.) The mission of the CEDC is to present 
recommendations to the Commission on ``advancing equity in the 
provision of and access to digital communication services and products 
for all people of the United States, without discrimination on the 
basis of race, color, religion, national origin, sex, or disability.'' 
The Commission has appointed distinguished leaders from community, 
industry and governmental organizations as members of the CEDC and its 
three working groups: the Digital Empowerment and Inclusion Working 
Group, tasked with ``making recommendations for addressing digital 
redlining and other barriers that impact equitable access to emerging 
technology in under-served and under-connected communities''; the 
Innovation and Access Working Group, tasked with ``recommending 
solutions to reduce entry barriers and encourage ownership and 
management of media, digital, communications services and next-
generation technology properties, and start-ups to encourage viewpoint 
diversity by a broad range of voices''; and the Diversity and Equity 
Working Group, tasked with ``examining how the FCC can affirmatively 
advance equity, civil rights, racial justice, and equal opportunity in 
the telecommunications industry to address inequalities in workplace 
employment policies and programs.''
    8. The CEDC and its working groups have taken significant steps 
toward executing their charges over the past 17 months. The CEDC has 
held five public meetings, including one on September 22, 2022, when 
the Innovation and Access Working Group hosted a Digital Skills Gap 
Symposium & Town Hall to examine the issues and challenges that states 
and localities face in addressing the need for greater digital skills 
training. And on November 7, 2022, the CEDC adopted a report titled 
``Recommendations and Best Practices to Prevent Digital Discrimination 
and Promote Digital Equity,'' including a portion developed by the 
Digital Empowerment and Inclusion Working Group recommending both (1) 
model policies and best practices to prevent digital discrimination by 
broadband providers, and (2) best practices to advance digital equity 
for states and localities.
    9. Task Force to Prevent Digital Discrimination. On February 8, 
2022, Chairwoman Rosenworcel announced the formation of the cross-
agency Task Force to Prevent Digital Discrimination. The Task Force is 
focused ``on creating rules and policies to combat digital 
discrimination and to promote equal access to broadband across the 
country, regardless of zip code, income level, ethnicity, race, 
religion, or national origin.'' Since its inception, the Task Force has 
facilitated coordination among the Bureaus and Offices regarding this 
proceeding, advised the Commission on matters regarding combating 
digital discrimination, and met with interested stakeholders. In 
November of this year, Task Force leadership held listening sessions 
with a broad array of advocates to hear diverse perspectives on this 
proceeding.
    10. Notice of Inquiry. In March 2022, we released a Notice of 
Inquiry commencing this proceeding and seeking broad comment on the 
statutory language and rules we should adopt consistent with 
congressional direction. In response, we received substantial comment 
on these issues from a range of stakeholders representing interests 
from the civil rights community, state and local governments, and 
broadband service providers of various sizes, technologies, and 
business models. The record reflects diverse perspectives on the nature 
and causes of digital discrimination of access, how to construe section 
60506 and the authority it offers us, and the steps we should take to 
fulfill the Infrastructure Act's direction.

III. Discussion

    11. In light of this record, we now seek further, focused comment 
on the rules we should adopt to fulfill the congressional direction in 
section 60506 to facilitate equal access to broadband internet access 
service and prevent digital discrimination of access. We first propose 
and seek comment on possible definitions of ``digital discrimination of 
access'' as used in the Infrastructure Act. We next propose to revise 
our informal consumer complaint process to accept complaints of digital 
discrimination. We seek comment on the rule or rules we should adopt to 
prevent digital discrimination of access, as required by Congress. And 
we propose to adopt model policies and best practices for states and 
localities combating digital discrimination based on the CEDC 
recommendations. (For purposes of this proposed rule, the term 
``localities'' includes Tribal governments.)

A. Defining ``Digital Discrimination of Access''

    12. We propose to adopt a definition of ``digital discrimination of 
access'' that encompasses actions or omissions by a provider that 
differentially impact consumers' access to broadband internet access 
service, and where the actions or omissions are not justified on 
grounds of technical and/or economic infeasibility. We seek comment on 
whether this definitional approach should depend on whether, and for 
what reason(s), the provider intended to discriminate on the basis of a 
protected characteristic. We therefore propose to define ``digital 
discrimination of access,'' for purposes of this proceeding, as one or 
a combination of the following: (1) ``policies or practices, not

[[Page 3684]]

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.'' (We further explore the nuances 
and possible meaning of the components our proposed definitions in Part 
III.A.2 of this proposed rule.) We believe that this approach 
represents a plausible interpretation of ``digital discrimination of 
access'' as the term is used in the Infrastructure Act. We seek comment 
on this proposal, and we seek further comment on the details of this 
definition.
    13. We seek comment on whether this definitional approach 
represents the best way to interpret digital discrimination of access 
under the statute. Should the definition focus on the provider's 
actions or omissions as represented by its policies and practices, or 
should we adopt another approach? Should the definition exclude those 
actions or omissions that are justified by issues of technical and 
economic feasibility? Is there another definitional approach that would 
be more practical or implementable? Does our proposed approach align 
with the concept of digital discrimination in section 60506 and allow 
us to fulfill the goals of that section? Would a different definition 
for ``digital discrimination of access,'' including suggestions in the 
record, better interpret digital discrimination under the statute? Does 
the statutory use of the statutorily-defined term ``equal access'' 
separate from the statutorily-undefined term ``digital discrimination 
of access'' counsel any particular approach? We propose to define the 
term ``digital discrimination of access'' to give meaning to the full 
term used in subsection 60506(b)(1), and we seek comment on this 
proposal. Is that the appropriate term in section 60506 to define, or 
should we instead define a different term, such as ``digital 
discrimination''? What significance, if any, do the words ``of access'' 
hold? Should we draw on Commission precedent to give meaning to the 
full term ``digital discrimination of access'' or its components, such 
as the use of ``discrimination'' in section 202(a) of the 
Communications Act? If so, how should we do so? Rather than incorporate 
technical and economic feasibility into our definition in the manner we 
have proposed, should we instead understand section 60506 to require 
providers to ``take whatever affirmative steps [are] necessary to make 
equal access economically and technologically feasible?'' Should we 
consider any of the definitions of ``digital discrimination'' that the 
CEDC's Digital Empowerment and Inclusion Working Group compiled in its 
report on model policies and best practices for states and localities 
from interviews they conducted? If so, how should we include that 
content in the definition?
1. Disparate Impact and Disparate Treatment
    14. We seek comment on whether to adopt the definition of digital 
discrimination based on disparate impact (i.e., discriminatory effect), 
disparate treatment (i.e., discriminatory intent), or both. In response 
to the Notice of Inquiry, we received comments in support of each 
approach, including arguments that the language of section 60506 
encourages or requires us to adopt one approach or the other. We now 
seek further comment on which approach (or combination of approaches) 
we should take and the legal support for each approach. Commenters in 
support of a disparate impact standard put forth a number of arguments 
to explain their view. For example, some commenters including the 
American Foundation for the Blind, Black Women's Roundtable, the 
Multicultural Media, Telecom and Internet Council, and Public 
Knowledge, urge the Commission to define digital discrimination as 
being based on disparate impact and argue that this is the only way to 
create an effective prohibition that captures discrimination as it 
happens in the real world. In addition, commenters such as the National 
Digital Inclusion Alliance, the National Urban League, and 
representatives of several cities and counties across the country 
emphasize that facially neutral or even unintentional practices could 
still produce discriminatory effects and ``the devastating consequences 
are much the same'' as intentional discrimination. Several commenters 
further argue that the language of section 60506 supports a disparate 
impact approach.
    15. Commenters favoring a definition requiring disparate treatment 
also offer a variety of arguments to support their view. Some 
commenters, such as ACA Connects, International Center for Law & 
Economics, AT&T, and the Wireless Internet Service Providers 
Association (WISPA), argue that even broadband deployment driven by 
legitimate business reasons might lead to uneven deployment, and that 
digital discrimination of access should not be understood to include 
such conduct. AT&T and the U.S. Chamber of Commerce further assert that 
a rule defining digital discrimination based on disparate impact alone 
would chill broadband investment and harm competition. CTIA-The 
Wireless Association (CTIA) maintains that an intent standard is most 
consistent with Congress's and the Commission's overall efforts to 
improve broadband access and affordability and the many challenges 
involved in broadband deployment. Some commenters also argue that the 
language of section 60506 does not support a definition of digital 
discrimination that includes disparate impact.
    16. We seek further comment on this record and whether and how to 
incorporate disparate impact or disparate treatment in our definition, 
either independently or in some combined formulation, to best achieve 
the goal established by Congress in section 60506 to ``facilitate equal 
access.'' Are some commenters' assertions correct that the problem of 
digital discrimination is primarily one of disparate impact such that 
our efforts to ``facilitate equal access'' would fall far short if we 
focus solely on disparate treatment? Alternatively, would a definition 
centered on disparate impact chill investment and deployment? If so, 
why, and what is the likely scope of any disinvestment effect that 
considering disparate impact might cause, and would the harms of 
disinvestment (if any) outweigh the benefits of adopting such an 
approach, including but not limited to potentially greater access to 
broadband services? Would our consideration of disparate impact present 
practical challenges for entities subject to any rules we adopt or to 
victims of digital discrimination? Additionally, would considering 
disparate impact present practical administrative challenges for the 
Commission, or would it be simpler to administer because the Commission 
would only need to analyze the effect of the particular action and its 
business justification, rather than trying to discern intent? If there 
are administrative or compliance burdens associated with a disparate 
impact approach, how might the Commission minimize those burdens to 
best achieve the statutory goal of facilitating equal access? Under a 
disparate treatment approach, by contrast, how difficult would it be to 
discern a broadband

[[Page 3685]]

provider's intent for particular service and deployment decisions? Are 
there circumstances in which an intentionally discriminatory policy or 
practice does not produce discriminatory effects? Should the Commission 
address such a practice in order to satisfy its mandate to ``prevent[ 
]'' digital discrimination, regardless of its effects?
    17. Certain commenters also offer arguments in favor of each 
approach based on the statutory text of section 60506 and U.S. Supreme 
Court precedent. Some commenters argue that Supreme Court precedent in 
the Inclusive Communities decision, which concluded that the Fair 
Housing Act encompasses claims based on disparate impact, requires us 
to adopt a disparate treatment approach to implement section 60506, 
while others argue that the same precedent requires us to adopt a 
disparate impact approach. Some commenters further point to statutory 
language and context, separate from this precedent, as reasons for us 
to adopt each approach.
    18. We first seek comment on whether the Inclusive Communities 
decision applies to our actions in this proceeding. As an initial 
matter, is this decision the controlling precedent under which we 
should consider this issue? Is there other judicial precedent we should 
consider, instead of or in addition to this decision, to guide our 
interpretation of section 60506? Are section 60506's design and 
operative language sufficiently similar to the Fair Housing Act and the 
other civil rights statutes discussed in Inclusive Communities to make 
the Supreme Court's textual analysis in that decision applicable to 
section 60506? Assuming that Inclusive Communities is binding or even 
helpful precedent for our task, we seek comment on the standard we 
should derive from the decision and apply to our analysis of section 
60506. In the course of concluding that disparate impact claims are 
cognizable under the Fair Housing Act, the Supreme Court stated that 
antidiscrimination laws should be interpreted to encompass disparate 
impact claims when (1) the statutory text refers ``to the consequences 
of actions and not just to the mindset of actors,'' and (2) ``that 
interpretation is consistent with statutory purpose.'' Should we follow 
this two-pronged analysis? In its comments, Verizon frames its argument 
according to three ``textual through-lines'' it divines from the 
Inclusive Communities decision: (i) Congress's use of the language 
``otherwise adversely affect'' or ``otherwise make unavailable''; (ii) 
the placement of these types of ``catchall phrases looking to 
consequences'' at the end of lengthy sentences that ``begin with 
prohibitions on disparate treatment''; and (iii) the placement of this 
language in the operative text of the statute. Should we understand 
this proposed framework to be a part of, or to supersede, the two-
pronged test identified by the Supreme Court? Is the framing Verizon 
suggests unduly restrictive given the text of section 60506 and 
Congress's overarching goal of ensuring ubiquitous access to broadband 
services across the United States?
    19. We also seek comment on the view shared by Lawyers' Committee 
for Civil Rights Under Law and the Multicultural Media, Telecom and 
internet Council that the Inclusive Communities standard encourages us 
to read section 60506 as primarily addressing disparate impacts. These 
commenters first argue that section 60506 is focused on the 
consequences of actions and not the mindset of actors. They identify 
subsection 60506(a)--which states that it is the policy of the United 
States to ensure that all people ``benefit from equal access to 
broadband''--as operating to shift the statute's focus to the 
consequences of actions rather than the intent of actors in the same 
way that the Supreme Court interpreted the term ``otherwise'' in the 
context of the Fair Housing Act. Furthering this argument, the 
Multicultural Media, Telecom and internet Council asserts that the 
definition of ``equal access'' in subsection 60506(a)(2) is focused on 
the impact of provider practices on a subscriber's ``equal opportunity 
to subscribe,'' not on provider intent. The Lawyers' Committee for 
Civil Rights Under Law argues that subsection 60506(b)(2)--which 
directs the Commission to identify necessary steps to ``eliminate 
discrimination'' based on the statute's listed categories --similarly 
refers to consequences, and that subsection 60506(c)(3), in allowing 
the Commission to prohibit discrimination based on ``other factors [it] 
determines to be relevant'' contains the kind of ``consequence-oriented 
catchall[ ]'' that the Supreme Court has found instructive in 
determining the appropriateness of a disparate impact approach. In this 
regard, it also argues that interpreting section 60506 to encompass 
disparate impact claims is consistent with the statutory purpose, 
satisfying the second prong of the Inclusive Communities inquiry, 
because the language of subsection 60506(a) evinces Congress's ``clear 
intent to create a world where all Americans can maintain equal access 
to broadband.'' We seek comment on these arguments and whether they 
should persuade us to adopt a definition of digital discrimination 
based on (or including) disparate impact.
    20. We next seek comment on the view of Verizon, AT&T, and 
USTelecom, which all argue that Inclusive Communities should limit our 
definition of digital discrimination to include only intentionally 
discriminatory acts. Verizon argues that section 60506 lacks the key 
word ``otherwise,'' which the Supreme Court has noted signals a shift 
in the statutory language away from an actor's intent to the 
consequences of the actor's actions. Verizon, contrary to the Lawyers' 
Committee for Civil Rights Under Law's argument, contends that the 
statute lacks the sort of ``catchall'' phrase the Court has previously 
used to identify statutes that allow for disparate impact claims or any 
``effects-based language.'' Instead, Verizon interprets Congress's 
direction in subsection 60506(b)(1) as focused on the ``motive'' of the 
acting entity, not on whether the action results in disparate impact. 
AT&T and USTelecom similarly argue that section 60506 lacks the phrases 
that the Court has previously found to support claims under a disparate 
impact analysis, and also assert that section 60506's use of the phrase 
``based on'' when formulating the prohibition ``requires a showing of 
purposeful discrimination rather than incidental effects.'' And as a 
structural matter, AT&T asserts that subsection 60506(a) is only 
aspirational and the fact that subsections 60506(b) and (c) do not 
specifically refer to equal access ``within any given provider's 
service area,'' implies that Congress did not intend to apply a 
disparate impact standard. We seek comment on these arguments and 
whether they should persuade us to adopt a definition of digital 
discrimination based solely on disparate treatment.
    21. We seek comment on various additional interpretative questions. 
Under Supreme Court precedent, a ``business necessity'' generally 
constitutes a defense to a discrimination claim that is based solely on 
disparate impact. In directing the Commission to take into account 
``issues of technical and economic feasibility'' when adopting our 
rules, did Congress effectively build a business justification defense 
into section 60506? If so, would this indicate that Congress intended 
for section 60506 to encompass claims of digital discrimination based 
on disparate impact? For commenters arguing that the statute only 
permits liability for intentional digital

[[Page 3686]]

discrimination, how would the Commission account for technical and 
economic feasibility in that circumstance? Should we understand 
Congress to have intended to allow providers to justify intentional 
discrimination on the basis of technical and economic feasibility? Are 
there other examples commenters can provide of a statute only providing 
a business justification defense to a claim of intentional 
discrimination?
    22. Some commenters argue that the Commission should adopt rules 
that encompass disparate impact claims because the statute does not 
specify that intent is a required element of digital discrimination, 
and Congress has included such language in recent telecommunications 
related consumer protection laws, thus indicating that Congress 
intended to not require discriminatory intent. We seek comment on these 
views. We also seek comment on whether broadband providers are already 
subject to laws and regulations prohibiting intentional discrimination. 
And if so, do such laws extend to the full scope of digital 
discrimination contemplated by section 60506? For example, do they 
apply only to cable franchises, and only to discrimination based on 
income? Do they apply only to common carriers with respect to common 
carrier services? Are there state or local laws that address digital 
discrimination that we should note? If broadband providers are already 
subject to laws of general applicability preventing intentional 
discrimination, does that suggest section 60506 includes instances of 
disparate impact? Or are there intentionally discriminatory practices 
our rules could capture that are not already prohibited by other laws 
and regulations? We seek comment on these differing perspectives.
    23. We also seek comment on AT&T's structural argument that under a 
disparate impact approach, section 60506 would be on a ``collision 
course'' with the other broadband provisions of the Infrastructure Act. 
AT&T warns that broadband deployment efforts funded through other 
provisions in the Infrastructure Act ``might skew [a provider's] 
deployment ratios for households inside and outside of protected 
classes,'' and thus increase that provider's risk of liability under a 
rule that includes a disparate impact standard. Do others agree with 
this assertion that there is a tension between a disparate impact 
approach and the Infrastructure Act's deployment objectives? If so, how 
could we structure our rules to mitigate these concerns? Would a 
prohibition focused solely on discriminatory intent fit within the 
Infrastructure Act's other broadband-related provisions better than a 
rule that includes disparate impact liability? ACA Connects argues 
that, in contrast to statutes like the Civil Rights Act of 1964, the 
Fair Housing Act, and the Equal Credit Act, there is no record of a 
history of discriminatory conduct in the telecommunications industry 
that could justify adoption of a disparate impact rule. We seek comment 
on this reasoning. Is it accurate that those entities currently 
providing broadband services (or their predecessors) have no record of 
a history of discriminatory action? Would such a record be necessary to 
adopt rules to prohibit digital discrimination based on disparate 
impact liability?
    24. We seek comment on whether the inclusion of income level as a 
listed characteristic should guide our understanding of whether the 
statute applies to claims of discrimination based on disparate impact 
or disparate treatment. CTIA contends that the inclusion of income 
level as a listed characteristic is unique compared to Federal civil 
rights statutes and its ``novelty'' supports a rule based solely on 
discriminatory intent. According to CTIA, an approach to 
antidiscrimination laws and claims of discrimination based on income 
level under a disparate impact analysis would conflict with subsection 
60506(b)'s direction that our rules account for economic feasibility. 
In contrast, Public Knowledge rejects the characterization that 
prohibiting discrimination based on income level is novel, and 
Communications Workers of America, Common Cause et al., and the 
Leadership Conference on Civil and Human Rights all point to the 
inclusion of income level as an indication that Congress intended 
section 60506 to cover a wide range of practices, including those 
giving rise to disparate impact claims. We seek further comment on this 
divided record. Is the inclusion of income level as a listed 
characteristic in an antidiscrimination statute novel on a Federal and 
state level? If so, does that counsel in favor of adopting a definition 
based solely on disparate treatment, one based solely on disparate 
impact, or one based on some combination of the two? Furthermore, how 
does a consumer's income level, or the average income level of a 
geographical area, relate to economic feasibility in the deployment and 
provision of broadband internet access services?
2. Other Components of the Definition
    25. We next seek comment on other components of our proposed 
definitions. We seek comment to drive our understanding of what 
services, entities, and practices should be within the scope of our 
definition; how and on what bases we should understand policies and 
practices to be justified by technical and economic considerations; who 
can be subject to digital discrimination; and how we should determine 
when digital discrimination has occurred. We seek comment on each issue 
in turn.
    26. Covered Services. We first seek comment on the scope of 
services that individuals use when they experience digital 
discrimination of access. We seek to answer the following question: 
what services are consumers using if and when they encounter ``policies 
or practices . . . that differentially impact [their] access to 
broadband internet access service''? Commenters to the Notice of 
Inquiry differ on whether we should extend our definition of ``digital 
discrimination of access'' to broadband internet service provided over 
a variety of technologies, both fixed and mobile, other communications 
services, and services delivered over broadband. These commenters argue 
that consumers should not be excluded from enjoying certain civil 
rights protections by virtue of the service they are using, and that 
some consumers and communities cannot enjoy the benefits broadband has 
to offer without having non-discriminatory access to services accessed 
over broadband. By contrast, other commenters argue that services other 
than broadband are outside the scope of section 60506 and this 
proceeding. In the proposed definitions of ``digital discrimination of 
access,'' we propose to limit our focus to broadband internet access 
service. We seek comment on what technologies our definition should 
include.
    27. We seek comment on the types of technologies over which 
broadband internet access service is provided and to which our rules 
should apply. The record reflects that providers can use various forms 
of technologies to provision broadband to consumers, including digital 
subscriber line (DSL), cable modem, fiber, fixed and mobile wireless, 
and satellite. Are these types of technologies correctly understood as 
the technologies over which broadband internet access service is 
provided, and are there any other types of technologies we should 
consider? Does the definition of ``broadband internet access service'' 
that is provided in Sec.  8.1(b) of the Commission's rules capture the 
appropriate scope of technologies such that we should follow the 
approach taken in that rule? Should we consider the upload and download 
speeds of the types of technologies that providers use

[[Page 3687]]

to provision broadband service and, if so, how? Are there any unique 
considerations associated with different technologies we should take 
into account and, if so, how should we address them? Does the language 
of section 60506 in any way require us to include or exclude broadband 
provided over certain types of technologies?
    28. We seek comment on including other services, such as other 
communications services and services delivered over broadband, into our 
definition. In order to achieve the policy that ``subscribers should 
benefit from equal access to broadband internet access service,'' and 
fulfill our direction to ``facilitate equal access to broadband 
internet access service,'' is it necessary that we include other 
services in our definition? How do other services relate to that goal? 
Or do commenters believe that section 60506's focus on broadband 
internet access service reflects congressional intent that other 
services not be included in our definition? Are other services distinct 
from broadband internet access service in ways that would complicate 
analysis of the problem of digital discrimination if we include them? 
And would their inclusion complicate administration of and compliance 
with any rules we adopt under this definition? If we did include other 
communications services or services offered over broadband, what 
specific services should we include? Does section 60506 give us 
authority to include these types of services in our definition? If not, 
can we rely on other sources of authority to do so? If we were to 
address discrimination issues regarding other services under other 
authority, would it be better to develop dedicated rules for those 
services? Should we, at minimum, include services we find to provide 
the functional equivalent of broadband internet access service?
    29. Covered Entities. We next seek comment on what types of 
entities should be covered by our definition of digital discrimination 
of access. We seek to answer the following question: whose ``policies 
or practices . . . that differentially impact consumers' access to 
broadband internet access service'' should be covered by our 
definition? In the record developed in response to the Notice of 
Inquiry, some commenters argue that we should extend our definition 
broadly beyond broadband providers to include entities working on a 
provider's behalf; those involved in any of the logistical steps to 
provide broadband, such as local and state governments and those who 
maintain network infrastructure; and generally to ``any entity that can 
affect'' an individual's ability to access or afford broadband, such as 
a business owner or landlord. These commenters note that actions by a 
variety of entities can differentially impact consumers' access to 
broadband and thus, to address digital discrimination as directed by 
Congress, we should include these types of entities within the scope of 
the rules we adopt. By contrast, the National Multifamily Housing 
Council and the National Apartment Association assert that the 
statutory language limits our focus to broadband providers.
    30. We seek comment on whether we should understand ``digital 
discrimination of access'' to include policies or practices by a 
broader range of entities than broadband providers. Can entities other 
than broadband providers engage in or contribute to digital 
discrimination of access? If so, what are those entities and can they 
all be covered by the rules we ultimately adopt in this proceeding? Are 
these types of entities different from broadband providers in ways that 
would complicate analysis of the problem of digital discrimination if 
we defined it to include them? And would their inclusion complicate 
administration of and compliance with any rules we adopt? Would 
covering a broader range of entities allow any rules we adopt to better 
adapt to changes in the provision of broadband or how digital 
discrimination occurs? Should we instead understand our definition to 
include only broadband providers and those working on their behalf? How 
would we understand when an entity is working on behalf of a broadband 
provider? To the extent we include agents of broadband providers in our 
definition, what expectations and obligations should we place on agents 
who are simply executing at their principal's direction? If we limit 
our definition to include only broadband providers, would such an 
approach leave a loophole or be too narrow to allow us to fulfill our 
direction to ``facilitate equal access to broadband internet access 
service''? Do we have authority to extend our rules to entities other 
than broadband providers? Should the analysis of what constitutes 
digital discrimination of access differ as applied to broadband 
providers and their related entities on the one hand, and entities 
unrelated to broadband providers on the other? If we understood covered 
services to extend beyond broadband service, are there other 
considerations we should take into account regarding covered entities?
    31. Prohibited Practices and Policies. We seek comment on how the 
Commission should understand the policies or practices that can lead to 
digital discrimination. We seek to answer the following question: what 
``policies or practices . . . differentially impact consumers' access 
to broadband internet access service''? In the record developed in 
response to the Notice of Inquiry, some commenters suggest we consider 
policies and practices related to broadband infrastructure deployment, 
network upgrades, marketing or advertising, service provision, network 
maintenance, and customer service; service provider use of algorithms 
to make decisions about deployment and other aspects of providing 
internet service; and privacy and security practices. These commenters 
argue that prohibiting discriminatory practices in these areas is 
necessary because they can lead to inequitable outcomes for consumers 
or exacerbate existing biases.
    32. We seek comment on what policies and practices should be 
covered by our definition. Do commenters agree that the practices and 
policies suggested in response to the Notice of Inquiry can 
differentially impact consumers' access to broadband? What specific 
practices and policies related to broadband infrastructure deployment, 
network upgrades, marketing or advertising, service provision, network 
maintenance, customer service, sales, and ongoing technical support can 
do so? For example, can practices and policies related to certain terms 
and conditions of service, such as those concerning speeds, data caps, 
throttling, late fees, equipment rentals and installation, contract 
renewal or termination, customer credit or account history, promotional 
rates, or price, constitute or lead to digital discrimination? Are 
there practices and policies related to how broadband internet access 
service is sold or how technical support is provided that can lead to 
digital discrimination? How can we account for the idea that policies 
and practices can cause or contribute to digital discrimination in 
combination, if not individually? Can bias in algorithms lead to 
digital discrimination? And, what specific device and consumer data 
protection measures, and privacy and security practices, can 
differentially impact consumers' access to broadband? Are there other 
policies and practices that we should specifically consider in the 
context of understanding how to define digital discrimination of access 
to best meet our direction to ``facilitate equal access to broadband''?
    33. We seek comment on how the language of section 60506 should 
influence the policies and practices we consider part of digital 
discrimination. Section 60506 also defines ``equal

[[Page 3688]]

access'' with reference to ``comparable speeds, capacities, latency, 
and other quality of service metrics'' and ``comparable terms and 
conditions.'' Does this language give us discretion to include any 
practices that relate to quality of service, including non-technical 
aspects of service, such as customer service, marketing or advertising, 
or terms and conditions related to contract renewal, account history, 
or price? Or, does the preceding reference to ``speeds, capacities[, 
and] latency'' reflect Congress's intent for the Commission to consider 
only policies and practices related to technical aspects of quality of 
service? What types of policies and practices should fall within the 
statutory phrase ``terms and conditions''? Does that phrase include 
pricing? What are the limitations, if any, on our ability to include 
policies and practices that impact technical aspects of existing 
service, and the decision to deploy service in the first instance?
    34. Technical and Economic Feasibility. We seek comment on how our 
definition should ``tak[e] into account'' justifications on the basis 
of technical and economic feasibility. In the language of our proposed 
definitions: in what circumstances is a differential impact to 
consumers' access to broadband ``justified by genuine issues of 
technical or economic feasibility''? In the record developed in 
response to the Notice of Inquiry, some commenters argue that providers 
should have a safe harbor and presumption of nondiscrimination when 
certain conditions are met or certain circumstances are present. These 
commenters explain that in these situations a lack of deployment is 
most likely due to economic or technical factors that make deploying 
broadband impractical, and that providing a safe harbor in these 
instances will allow us to more thoroughly investigate more probable 
instances of digital discrimination. Other commenters argue that we 
should instead analyze claims of infeasibility on a case-by-case basis. 
Some of these commenters argue that individualized scrutiny and strict 
standards are necessary to fulfill Congress's intent as set forth in 
section 60506, to ensure that meritless assertions of infeasibility do 
not impede legitimate complaints alleging digital discrimination of 
access.
    35. We seek comment on whether to adopt safe harbors, establish a 
case-by-case standard for infeasibility, or both. As an initial matter, 
we seek comment on what the legal significance of any such safe harbor 
should be, in terms of shifting the burden of proof or otherwise. What 
would be the practical implications of adopting safe harbors generally 
or a case-by-case standard? Would a bright line safe harbor approach be 
more likely to excuse conduct that, on an individualized review, may 
not be justified? Are there ways we could design the safe harbor or 
safe harbors to increase the odds that we successfully identify cases 
of digital discrimination while excluding only non-meritorious claims 
or charges? Would a case-by-case standard be more effective at 
identifying justified, and unjustified, conduct? If so, does that 
increased effectiveness outweigh any administrative and compliance 
burdens that may accompany an individualized approach? How can we 
minimize any identified burdens? Would requiring an individualized 
analysis for each case of alleged infeasibility place an unreasonable 
burden on providers or create uncertainty that could chill network 
investment? Would a combination of each approach, setting an 
individualized analysis accompanied by certain safe harbors, alleviate 
any identified concerns with each approach individually? Does the 
language of section 60506 require us to take one approach or the other? 
Would an individualized approach create uncertainty and potentially 
chill investment? Or, would a safe harbor approach effectively immunize 
problematic behavior so as to undermine our ability to facilitate equal 
access to broadband?
    36. We seek comment on the substantive standard we should require 
under either approach, to best balance congressional direction to 
``facilitate equal access'' while ``taking into account the issues of 
technical and economic feasibility presented by that objective.'' If we 
were to provide a safe harbor, which circumstances would be appropriate 
for a safe harbor? Should we provide a safe harbor under limited 
circumstances, encompassing a limited set of business necessity 
exemptions? Should we provide a safe harbor under a wider variety of 
circumstances and, if so, what should those circumstances be? Would a 
safe harbor be appropriate when a provider acted in reliance on 
Commission requirements or funding commitments, such as merger 
conditions, those associated with universal service funding, or build-
out? Or would a safe harbor be appropriate when conduct occurs that is 
outside of a provider's control, such as third-party conduct? If we 
adopted an individualized analysis instead or in addition, what should 
be the standard for technical and economic infeasibility? How should we 
determine that an issue of feasibility is ``genuine,'' and are there 
standards or concepts in other contexts we should consider to do so? 
For example, should we look to the summary judgment standard in Federal 
court, which requires the party requesting relief to ``show[ ] that 
there is no genuine dispute as to any material fact,'' or the final 
step of the McDonnell Douglas burden-shifting analysis where a 
complainant can show that a proffered justification for allegedly 
discriminatory conduct is mere pretext? Should technical infeasibility 
require a showing that providing service was technically impossible, or 
some lower bar? Should economic infeasibility require a showing that 
providing service was unprofitable based on marginal cost, average 
cost, or some other basis? On what time horizon should we consider 
profitability or analyze claims of technical or economic infeasibility? 
Should we establish a bright line ``standard where a profit margin 
reduction between neighboring areas . . . does not constitute 
[economic] infeasibility''? Should we adopt different safe harbors, or 
a different individualized analysis, for different types of providers, 
or differently-situated providers? Does the language of section 60506 
require us to include any particular safe harbors or factors in a 
standard for individualized analysis, beyond accounting for ``technical 
and economic feasibility''? What specifically does it require us to 
include? More generally, how should we construe ``feasibility'' within 
the meaning of section 60506? Should we understand it to refer to 
capability, convenience or reasonableness? What would be the practical 
impact of each such interpretation? Should we draw on prior instances 
of the Commission interpreting and using language similar to the phrase 
``technical and economic feasibility'', and how specifically would we 
apply those instances in the context of section 60506?
    37. Consumers. We seek comment on how we should identify those who 
might experience digital discrimination of access. We seek to answer 
the following question: whose experience of a ``differential[ ] impact 
[on] . . . access to broadband internet access service,'' whether 
intended or not, is the focus of Section 60506? In the record developed 
in response to the Notice of Inquiry, one commenter argues that we 
should consider claims by individuals and communities that meet one of 
the listed characteristics, because entire communities may experience 
digital discrimination. Another argues that we

[[Page 3689]]

should not include non-subscribers or ``consumers generally.''
    38. We seek comment on what consumers should be covered by our 
definition of digital discrimination of access. Should we understand 
digital discrimination of access to be a problem experienced by 
individuals or communities, or both? Is digital discrimination 
experienced differently at the individual and community levels such 
that our definition would need to account for that difference? What are 
the practical or administrative costs and benefits to the Commission, 
providers, and those who might suffer digital discrimination if both 
communities and individuals are covered by our definition? Does section 
60506 require us to include or exclude communities from coverage?
    39. Do commenters agree with ACA Connects that we should limit our 
concept of ``subscribers'' to only current subscribers, and not include 
non-subscribers or consumers generally? Would excluding non-subscribers 
imply that those who do not currently subscribe to broadband cannot 
experience digital discrimination of access? Is such an approach 
reasonable, or does it exclude those who might experience digital 
discrimination most acutely? If we adopt such a definition, how would 
we account for consumers who don't subscribe to broadband because the 
service is not available in their community, possibly because of 
digital discrimination? Does the use of the word ``subscribers'' in 
subsection 60506(a) require that the scope of our digital 
discrimination rules be tied to subscription status, or does the lack 
of reference to subscribers and general direction to ``facilitate equal 
access'' in subsection 60506(b) counsel in favor of covering non-
subscribers? What would be the practical impact of limiting coverage to 
subscribers on the one hand, or extending it to non-subscribers on the 
other? If we include non-subscribers, are there distinctions between 
types of non-subscribers that we should consider, such as those who are 
and are not actively seeking broadband service? What distinctions or 
subcategories of non-subscribers should we consider and why?
    40. Listed Characteristics. In our proposed definition, we propose 
to include the same characteristics as bases for discrimination as 
those identified in section 60506. We seek comment on how to give 
meaning to these characteristics and whether we should include any 
additional characteristics in the rules we ultimately adopt. In 
response to the Notice of Inquiry, commenters suggest interpreting the 
listed characteristics in accordance with existing ``legislation, 
regulations, and precedent,'' such as the Civil Rights Act of 1964 and/
or the New York City Human Rights Law, because using existing 
understandings reduces uncertainty. Other commenters argue that the 
Commission should include additional characteristics such as disability 
status, age, sex, sexual orientation, gender identity and expression, 
familial status, domestic violence survivor status, homelessness, and 
English language proficiency. These commenters argue that the 
Commission should recognize characteristics of communities that are 
historically marginalized or underserved because doing so is consistent 
with Congress's intent in section 60506. By contrast, other commenters 
assert that the listed characteristics are exclusive, arguing that 
Congress was deliberate in its choice to specify the listed 
characteristics.
    41. We seek comment on whether we should give further meaning to 
the characteristics listed in the statute and included in our proposed 
definition: income level, race, ethnicity, color, religion, and 
national origin. Is the meaning of some or all of these terms 
sufficiently established such that we do not need to give them further 
meaning? Even if their meaning is established, would it promote 
certainty to adopt further definitions or explanations consistent with 
other laws or precedent? Or would adopting definitions unnecessarily 
decide issues we could resolve on a case-by-case basis? If we did adopt 
further definitions based on existing law or precedent, what resources 
should we use to give meaning to the listed characteristics? Would the 
Civil Rights Act of 1964 or the New York City Human Rights Law most 
effectively define some or all of the listed characteristics? What 
other legislation, regulations, or precedent should we consider to give 
meaning to the listed characteristics?
    42. We seek comment on whether we should expand our definition to 
include characteristics beyond those listed in section 60506. (We note 
that section 60506 directs the Commission to adopt rules to facilitate 
equal access to broadband internet access service, ``including''--but 
not limited to--addressing discrimination based on the listed 
characteristics.) If we did, what additional characteristics would we 
include? Should we include some or all of disability status, age, sex, 
sexual orientation, gender identity and expression, familial status, 
domestic violence survivor status, homelessness, and English language 
proficiency, as suggested in the record? Should we include those 
residing in certain geographic areas, such as urban or rural areas, or 
areas that have experienced historic redlining? If we adopted some 
additional characteristics, but not all, on what basis should we decide 
which to include and which to exclude? Are these characteristics 
distinct from those listed in section 60506, or from one another, in 
ways that would complicate analysis of the problem of digital 
discrimination if we defined it to include them? And would their 
inclusion complicate administration of and compliance with any rules we 
adopt under this definition? Are the meanings of these various 
characteristics clear, or would we need to further define them? How 
would we do so? Might we adopt the meanings used by other Federal 
agencies such as the Equal Employment Opportunity Commission? If we 
decline to include additional characteristics, are there nonetheless 
circumstances in which we could consider the impact based on an 
unlisted characteristic when analyzing claims of digital discrimination 
based on a listed characteristic?
    43. What would be the statutory basis for including additional 
characteristics in our definition? The term we propose defining, 
``digital discrimination of access,'' in subsection 60506(b)(1) must be 
``based on income level, race, ethnicity, color, religion, or national 
origin.'' Does the Commission have discretion to include additional 
characteristics for purposes of implementing section 60506, or does the 
presence of specific listed factors in subsection 60506(b)(1) 
demonstrate congressional intent to limit our focus to those factors? 
Could we take action to address inequities faced by those with unlisted 
characteristics under a different provision of section 60506: the 
policy statement in subsection 60506(a)(3) that we should ensure ``all 
people of the United States'' benefit from equal access; the broader 
direction in subsection 60506(b) to ``facilitate equal access''; or the 
separate direction in subsection 60506(c) to collaborate with the 
Attorney General to prohibit deployment discrimination based on ``other 
factors the Commission determines to be relevant''? Would any such 
action need to be distinct from action related to this definition of 
``digital discrimination of access''? Or should we read these other 
provisions to reflect Congress's intent for the listed characteristics 
to evolve as communities or individuals demonstrate they face digital 
discrimination? Are there other sections of the Communications Act, or

[[Page 3690]]

other Federal legislation, that would give us authority to include 
certain characteristics in our rules preventing digital discrimination 
of access?
    44. Differential Impact. We seek comment on the standard or 
standards we should use to determine when consumers face digital 
discrimination, relevant comparators, and data we should consider. We 
seek to answer the following question: when is consumers' access to 
broadband internet access service ``differentially impact[ed]'' by 
policies or practices, whether intentionally or not? We seek comment on 
how the Commission should compare services, terms, and conditions to 
make this determination; the geographic area we should compare across; 
and data sources we should look to in making this determination. 
Commenters in response to the Notice of Inquiry suggest comparing 
technical metrics such as speed, capacity, and network outages, as well 
as non-technical factors such as caliber of customer service. 
Commenters variously cite geographic boundaries such as municipal lines 
as well as a covered entity's service area as methods for defining a 
given area. Commenters also point to different ways that the Commission 
can use data in these efforts, such as by monitoring the status of 
fiber deployments in different communities and examining whether there 
exists a statistical correlation between the characteristics listed in 
section 60506 in a community and lower levels of access to broadband.
    45. As an initial matter, we seek comment on the scope of our 
inquiry when identifying instances of differential impact. Should we 
understand ``equal access'' and ``discrimination of access'' to focus 
on availability of broadband, adoption of broadband, quality of 
broadband, or some combination of these factors? Are there other 
factors we should consider? The Electronic Frontier Foundation and 
other commenters observe that availability of broadband hinges on its 
deployment and highlights the lack of deployment in underserved areas 
despite the economic feasibility of doing so. The Multicultural Media, 
Telecom and internet Council argues that the statute should be viewed 
from the ``perspective of subscribers,'' which they assert means the 
Commission should also ``focus on issues related to broadband adoption, 
not just broadband availability.'' Other commenters agree that we 
should consider the barriers that affordability and a lack of digital 
literacy present to adoption of services, even where available. 
Conversely, the International Center for Law & Economics posits that 
matters of adoption and affordability have no basis in the statutory 
language, which it argues focuses only on physical availability. We 
seek comment on these arguments. When determining whether a consumer's 
access to broadband has been ``differentially impact[ed],'' should we 
look to availability of service or should we look to adoption, 
affordability, and quality of service where service is already 
available? What would be the practical impact of either interpretation, 
and would it be appropriate to consider both? Is there a statutory 
basis for including barriers to adoption in our definition? We also 
seek comment on how we should consider substitutability of service in 
determining whether a given area benefits from equal access. For 
example, does the availability of a comparable service where another 
service is unavailable mean that a consumer ``benefit[s] from equal 
access'' in a given area? Should the availability of one service 
utilizing a different technology, such as 5G wireless service versus 
traditional wireline service, impact the analysis where the other is 
otherwise incomparable or unavailable?
    46. We seek comment on the standard and methods we should use to 
identify when a consumer's broadband internet access is differentially 
impacted with respect to the technical aspects of available service. 
Should we simply compare network performance metrics, and if so, at 
what threshold would we determine that performance was meaningfully 
better or worse for certain consumers? The National Digital Inclusion 
Alliance argues for establishing a prescriptive range for the quality-
of-service metrics that would indicate that a service is 
``comparable.'' If we establish prescriptive ranges of acceptable 
differences in service metrics, how do we ensure those ranges are not 
overly broad or narrow? Should we adopt different ranges depending on 
the service or geographic area? Is the number of relevant variables too 
large for this approach to be easily administered and complied with? 
How will any methods we adopt comparing technical quality of service 
need to change across services and technologies? What analytical 
approach should we take to account for the technical practicalities of 
provisioning broadband, such as when providers conduct network 
upgrades, network degradation occurs, or a provider experiences a 
network outage? Should we temporarily relax these standards when these 
circumstances occur? Some commenters argue that the Commission should 
require providers to undergo network performance testing similar to 
models that they assert have previously been effective. If we adopt 
periodic assessment requirements, how often would be practical to 
assess technical performance while accounting for changes that may 
occur over time, such as network upgrade cycles? How could we minimize 
the burden of this approach on providers? Should we assess 
comparability of service quality from the consumer's perspective and 
provide that service quality and terms and conditions are 
``comparable'' if a consumer would not recognize differences in their 
broadband experience? Should we consider the unique needs of particular 
communities? What metrics and data sources can we employ in making 
these comparisons? Should we measure, for example, rates of service 
interruptions and cut-offs? Does section 60506 counsel that we take any 
particular approach when assessing comparability and determining 
whether there is a differential impact? For example, do the terms 
``equal access'' or ``discrimination'' include any concept of scope or 
exclude any requirement of materiality for such differential impact? We 
also seek comment on whether and how broadband consumer labels might 
facilitate enforcement of any potential rules we adopt, either from the 
perspective of informing consumer complaints or Commission enforcement 
actions.
    47. We seek comment on the standard and methods we should use to 
identify when a consumer's broadband access is differentially impacted 
with regard to non-technical aspects of available service. How can we 
determine when, for example, customer service, late fees, equipment 
rentals and installation policies, access to specific service plan 
offerings or speeds, contract renewal or termination policies, 
availability of customer credit or account history practices, and 
prices are meaningfully better or worse for certain consumers? Should 
we establish certain known thresholds to promote compliance and make it 
easier for consumers to know when they have experienced digital 
discrimination? Or is this inquiry better suited to a case-by-case 
determination? What standard would we use for any individualized 
analysis? To the extent we include price in our conception of digital 
discrimination, how should we consider plans that are identical along 
all features except for price? How should we consider the practice of 
price discrimination (i.e., charging different

[[Page 3691]]

consumers different prices for the identical service)?
    48. We seek comment on the relevant geographic comparators to use 
in identifying when a consumer's broadband access is differentially 
impacted. Commenters in response to the Notice of Inquiry suggest 
various methods for defining geographic areas for relevant comparators. 
The National Digital Inclusion Alliance, for example, proposes that the 
Commission use a provider's legally defined service area, such as its 
cable franchise area, within a given metropolitan or micropolitan 
statistical area. ACA Connects similarly contends that the relevant 
area should be defined as a provider's service area, and further argues 
that the Infrastructure Act does not provide us with authority to take 
a different approach. Conversely, Public Knowledge argues that our 
definition ``should be broad and flexible'' and that such an approach 
is consistent with the language of section 60506. Public Knowledge 
further argues that limiting our inquiry to a provider's service area 
would render the Commission incapable of addressing instances where 
services are not offered in the first instance as a result of 
discriminatory practices. Does the language of section 60506 counsel or 
require us to understand this geographic area in any particular way? 
The statement of policy in subsection 60506(a)(1) states ``the policy 
of the United States'' is that ``subscribers should benefit from equal 
access to broadband . . . within the service area of a provider of such 
service.'' Does this language reflect that our focus under section 
60506 should be limited to a provider's existing service area? If so, 
how should a provider's existing service area be defined? Is it in all 
census blocks that the provider has a current subscriber? Or is it any 
area that the provider could deploy services to within a certain 
timeframe, and if so, what is the appropriate timeframe? Should we 
include areas in a certain proximity to a provider's current service 
area, and if so, what is the appropriate range? In subsection 60506(b), 
we are directed to adopt rules to ``facilitate equal access,'' and 
``equal access'' is defined with reference to comparable service ``in a 
given area.'' Does the use of a different term in that definition 
reflect Congress's intent to understand geographic area differently, 
and if so, in what way?
    49. We seek comment on these methods for understanding the 
geographic areas we should compare to determine if access to broadband 
internet has been differentially impacted. Should we compare only 
current subscribers to other consumers in a provider's service area? If 
so, are there instances where the Commission should expand or constrict 
the boundaries of such an area? What circumstances would necessitate or 
counsel doing so? Would an approach based on a provider's current 
service area prevent us from addressing instances when an individual or 
community completely lacks access to service from that provider? If we 
define the relevant area based on a provider's service area, should 
that understanding be cabined by the technology employed (such as wired 
versus wireless broadband) when a covered entity offers different kinds 
of services? Alternatively, should we adopt a broader understanding of 
the relevant area for comparison? Should we compare different providers 
within the same service area? Should we tie the relevant area to 
municipal boundaries, such as city, county, or state lines? Should we 
use concepts such as a metropolitan statistical area to capture similar 
areas that are not bound by municipal boundaries? Should we make 
comparisons between rural and urban areas, and if so how? Should we 
work with state, local, and Tribal governments to identify the 
appropriate comparison area? Should we use different concepts of 
geographic area in different contexts? Are there any unique 
considerations we should take into account when examining differential 
impact on the basis of income level?
    50. We seek comment on data sources we can or should use to help us 
identify instances where consumers' access to broadband internet is 
differentially impacted. Commenters highlight various studies in 
responding to the Notice of Inquiry, and we seek comment on those 
cited. These include, among others, investigations into the correlation 
between median area income and broadband deployment; the sources and 
effects of digital redlining; availability of fiber and high-speed 
broadband in lower-income and marginalized communities; and broadband 
gaps in rural communities. AT&T, for example, cites a study that 
examines publicly available data from the Commission and the U.S. 
Census Bureau and asserts that non-white and lower income households 
are not systemically and disproportionately underserved. Are these 
assertions well grounded? Do commenters agree with this study's 
conclusions, and why or why not? Should the Commission utilize U.S. 
Census Bureau demographic data more generally in identifying instances 
of digital discrimination of access? Conversely, the Electronic 
Frontier Foundation and other commenters cite to a survey in California 
that examines racial and income disparities and the correlation between 
historical and digital redlining. Should the Commission consider survey 
data such as the study cited? Is the study offered by these commenters 
persuasive, and why or why not? Are there studies aside from those 
cited in the record that the Commission should examine, and why? For 
example, a study co-published by the Associated Press and The Markup 
examined services offered by major providers in various cities, where--
despite being only blocks apart and being charged the same amount--one 
community, usually lower income and more racially diverse, received 
much slower internet service compared to another. We seek comment on 
the data presented and what accounts for the disparities identified.
    51. We also seek comment on how we should leverage our own existing 
data and whether we should undertake new data collection efforts. What 
existing data sources could help us to identify when consumers' access 
to broadband internet has been differentially impacted? For example, 
should we look to the Broadband Data Collection, the Broadband Data Act 
mapping process, or other collections? How specifically should we use 
the data offered by these collections? Should these or other data 
sources be used individually or in combination with other sources, 
whether from the Commission or originating externally, and if so, how? 
How can we best leverage the data collected through our informal 
consumer complaint process? What steps can the Commission take, 
including making new data available, to enable individuals and 
communities to identify digital discrimination of access? Are there 
ways we can improve existing sources of data, including the Broadband 
Data Collection and National Broadband Map, so that they can be used in 
evaluating digital discrimination of access in the future? If we 
undertake new data collections, what data should we collect? Should we 
collect data on broadband adoption not captured by other collections; 
on marketing and advertising practices; on broadband usage and 
adoption; on technical and non-technical quality of service; pricing 
and service plan availability; or on other subjects? How should those 
data collections be designed to maximize their utility for the 
Commission's efforts to address digital discrimination of access, while 
minimizing the burden on entities who

[[Page 3692]]

must provide these data? If the Commission does collect new data, at 
what geographic level should this data be collected so that it can 
adequately address complaints of digital discrimination but not be too 
burdensome on providers? If the Commission collects new data through 
surveys, what kind of information should such surveys collect, and from 
whom? In conducting such surveys, are there other agencies, 
institutions, or organizations the Commission should consider 
partnering with?

B. Revising the Commission's Informal Consumer Complaint Process

    52. We propose to revise our informal consumer complaint process to 
accept complaints of digital discrimination of access, as directed in 
section 60506. In the Notice of Inquiry, we explained that the 
Commission receives complaints through its Consumer Complaint Center 
and sought comment on how to modify our complaint processes to best 
execute this direction. In response, commenters suggest a variety of 
modifications to our consumer complaint process for purposes of 
accepting digital discrimination complaints. In light of this record, 
we propose to revise our 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. We further propose to make anonymized complaint data 
available to the public through the FCC's Consumer Complaint Data 
Center to inform third-party analyses. We seek comment on these 
proposals, and on any other revisions to our informal complaint rules 
and process that would be appropriate with respect to complaints 
regarding digital discrimination of access.
    53. We seek comment on our proposal to add a dedicated pathway for 
digital discrimination of access complaints to our consumer complaint 
system. Commenters who propose this idea argue we should do so because 
it will help the Commission identify trends that warrant further 
action. Do others agree that adding a digital discrimination of access 
pathway would offer these benefits? Or are digital discrimination 
complaints better understood as a subset of ``internet'' complaints, 
for which there is already a category on our Consumer Complaint Center? 
If we did adopt this proposal--demographic information aside--should we 
create new or different fields for the digital discrimination of access 
complaint form from those offered for other types of complaints? If so, 
what specific changes should we make and what purpose would they serve?
    54. We seek comment on our proposal to establish a pathway for 
organizations representing communities experiencing digital 
discrimination of access to submit digital discrimination complaints. 
We propose establishing a complaint pathway for state, local, Tribal, 
and community-based organizations, which would include separate 
processes for individual and organizational filers. Commenters who 
support this proposal argue that it will ensure that organizations can 
advocate on behalf of disenfranchised and marginalized individuals who 
are either unserved or underserved as a result of digital 
discrimination of access; and that it will enable the Commission better 
to identify and respond to substantive complaints and collaborate with 
state, local, and Tribal governments. What specific improvements can be 
made to the current informal consumer complaint process to make it more 
accessible for submission by organizations on behalf of groups of 
individuals? In what ways would a digital discrimination of access 
complaint from a community-based organization be different from an 
individual consumer's digital discrimination complaint, and how could 
we account for those differences in our consumer complaint system? 
Should organizational complainants be expected or required to share 
statistics and other information regarding the community in question 
and the services offered, or not offered, so that the Commission could 
more efficiently evaluate the bases of the complaint? What tools and 
resources should the Commission provide community-based organizations 
in order to submit digital discrimination of access complaints on 
behalf of the individuals they serve? Is the informal complaint process 
the appropriate entry point for organizational submissions? Would a 
dedicated collection portal help to differentiate consumer versus 
organizational submissions and better set clear expectations for the 
filer? Should we impose associational standing or other requirements on 
the filing of organizational complaints? If so, what such requirements 
would be appropriate?
    55. We seek comment on our proposal to collect voluntary 
demographic information from filers who submit digital discrimination 
of access complaints. Commenters who support this idea argue that we 
should collect demographic information from individuals filing 
complaints because doing so will enable us to better identify 
underlying patterns of discrimination that complainants themselves may 
be unaware of, and thus increase the efficiency and utility of the 
informal complaint process. We seek comment on how we should collect 
demographic information from filers who submit digital discrimination 
of access complaints. What specific demographic information should we 
collect? Should we instead make the submission of demographic 
information mandatory for digital discrimination of access complaints? 
Would requiring demographic information discourage the filing of 
complaints, and if it would, would this potential loss of complaints be 
justified given the potential benefits of collecting this information? 
If the complaint process requests, but does not demand, demographic 
information, should complainants be advised that their information will 
not be readily useable for uncovering the presence of digital 
discrimination of access? Would doing so give complainants an incentive 
to provide demographic information? Are there specific privacy concerns 
we should account for when collecting this demographic information? How 
would we accommodate organizational complainants in any demographic 
information requirements we adopt? Given the temptation to make 
frivolous, malicious or prank complaints, and the ease of machine 
generation of such complaints, should complainants be required to 
provide enough information about themselves to enable the commission to 
verify the existence of the complainant? Does the collection of 
demographic information have an impact on a filer's willingness to 
complete the complaint form? If a complaint is misfiled through a 
different pathway, how should we collect demographic information from 
that filing?
    56. We seek comment on any other changes we should make to our 
informal consumer complaint process to accept complaints of digital 
discrimination of access. Commenters variously propose that we make it 
easier to file a complaint for individuals who do not speak English; 
develop screening questions to guide consumers toward the appropriate 
category for their complaint; and improve our processes for submitting 
a complaint other than through our internet-based Consumer Complaint 
Center. We seek comment on whether to adopt these suggestions and, if 
we do, how to best implement them. We seek

[[Page 3693]]

comment on whether the Commission should engage in some form of 
complaint validation. Is it sufficient that providers who may be 
impacted by such complaints are able to review these complaints and 
respond?
    57. Making Complaint Data Available to the Public. We seek comment 
on our proposal to make digital discrimination complaint data available 
to the public through the FCC's Consumer Complaint Data Center. The 
record in this proceeding reflects widespread support for ensuring that 
the data collected from digital discrimination of access complaints, 
including demographic information, are made publicly available for 
third-party review and analysis. Making these data available could 
promote transparency and empower third parties to identify trends in 
digital discrimination. We seek comment on how to best make these data 
publicly available and useful while protecting complainant privacy. 
Some of the data currently collected from consumer complaints are made 
publicly available on our website in the Consumer Complaint Data 
Center. Should we make the same data publicly available for digital 
discrimination of access complaints? To the extent we receive and make 
available demographic data unique to digital discrimination complaints, 
to protect the privacy of complainants, we propose taking steps to 
aggregate, anonymize, or otherwise de-identify those data. We seek 
comment on how best to do so while protecting complainant privacy. 
Would it be useful and effective to buffer, aggregate, or remove some 
information in the data to protect consumer privacy? Instead, are 
disaggregated data necessary to be useful? If so, how could we protect 
the privacy of complainants while still publishing disaggregated data? 
Should we make additional data available to parties that agree to 
certain terms regarding confidentiality and use of that data? What 
additional data would we make available, and on what terms?

C. Adoption of Rules

    58. We seek comment on the rules we should adopt to fulfill the 
congressional direction to address digital discrimination of access. 
Section 60506 requires us to adopt rules to facilitate equal access to 
broadband, accounting for ``issues of technical and economic 
feasibility,'' that include ``preventing digital discrimination of 
access based on income level, race, ethnicity, color, religion, or 
national origin,'' and ``identifying necessary steps for the Commission 
to take to eliminate [digital] discrimination.'' To execute this 
direction, we seek comment on whether we should adopt a broad 
prohibition of digital discrimination of access and if so, how to 
structure and enforce it; place affirmative obligations on broadband 
providers; and take action in other proceedings that bear on or relate 
to addressing digital discrimination. In addition, we seek comment on 
various other proposals received in response to our Notice of Inquiry.
1. Broad Prohibition on Digital Discrimination of Access
    59. In our Notice of Inquiry, we sought comment on whether we 
should adopt rules that broadly and directly prohibit digital 
discrimination of access and on what other approaches we should take to 
implement the statute, such as prohibiting specifically enumerated 
conduct. Some commenters in response, such as the National Digital 
Inclusion Alliance, express support for a direct prohibition as a way 
for the Commission to ``be comprehensive and straightforward in its 
fulfillment of its Congressional obligation to prevent and eliminate 
such discrimination.'' Other commenters, such as WISPA, warn that we 
should be cautious in adopting rules because too broad of a prohibition 
could ``discourage deployment and investment for service providers, 
especially small providers,'' while rules that are too narrow ``will 
not identify actual cases of digital discrimination and will not serve 
the public interest.'' The National Digital Inclusion Alliance argues 
that we should identify and enumerate specific prohibited conduct and 
that such an approach would benefit the industry, subscribers, and the 
government by making clear what is barred by our rules.
    60. We seek comment on whether we should adopt a broad prohibition 
on digital discrimination of access, and how to structure and enforce 
such a prohibition. Would adopting a broad prohibition on digital 
discrimination of access be our best course to effectuate Congress's 
direction to adopt rules to ``facilitate equal access,'' including 
``preventing digital discrimination of access based on income level, 
race, ethnicity, color, religion, or national origin,'' and 
``identifying necessary steps for the Commissions to take to eliminate 
[digital] discrimination''? Would it present administrative challenges 
for government or a lack of clarity for providers or consumers? Would 
that lack of clarity chill investment? How could we address any 
identified practical challenges? Should we accompany any broad 
prohibition we adopt with specific, enumerated prohibited practices? If 
so, would this take the place of a broad prohibition of digital 
discrimination or be supplementary? If we were to publish a list of 
prohibited practices considered examples of digital discrimination, 
what practices should we include? Are the answers to these questions 
different if we adopt a definition of digital discrimination based on 
disparate impact or disparate treatment? If we adopt a definition of 
digital discrimination of access that includes a disparate impact 
standard, should we nonetheless limit our broad prohibition to 
instances of disparate treatment? Would a rule prohibiting only 
intentionally discriminatory policies or practices be effective in 
achieving the stated goal of subsection 60506(a)? If not, why not? 
Would such a rule establish a bar too high for claimants (or the 
Commission) to clear, and would it be easy to evade? Is there any 
context in which we should adopt a prohibition on disparate impact and 
not disparate treatment? Or does disparate impact inherently include 
disparate treatment?
    61. We seek comment on how to address claims of digital 
discrimination of access under any broad prohibitions we might adopt. 
We first seek comment on the analytical framework we should use for 
claims of digital discrimination of access under disparate impact and 
disparate treatment prohibitions. We next seek comment on how to 
effectuate enforcement of any prohibition we might adopt.
a. Analytical Framework
    62. Disparate Impact Framework. We seek comment on how we should 
structure our rules and procedures to implement a prohibition of 
digital discrimination based on disparate impact. Courts have generally 
used a three-part test to determine whether a facially neutral policy 
or practice discriminates against members of protected groups under 
civil rights statutes. First, the complainant must establish a prima 
facie case of discrimination by proving that the challenged practice or 
policy causes a disproportionate, adverse impact on a group determined 
by reference to a protected characteristic. This showing creates an 
inference of discrimination. Second, the burden shifts to the 
respondent to establish a substantial, legitimate justification for the 
challenged practice or policy. This second step is typically referred 
to as the ``rebuttal'' phase. And third, where the respondent provides 
a substantial, legitimate justification, the complainant can still 
prevail on the claim by demonstrating the existence of an

[[Page 3694]]

available, alternative practice or policy that would achieve the same 
legitimate objective but with less discriminatory effect. Public 
Knowledge suggests that we implement such a burden shifting approach so 
that once a prima facie showing of discrimination has been made, ``the 
burden would shift to the alleged violator to demonstrate that digital 
discrimination has not taken place, either by rebutting the evidence, 
or by providing a `substantial legitimate justification' for the 
unequal access to broadband that the complainant has shown.'' We seek 
comment on whether to adopt this type of framework. Is this the best 
way to analyze claims of disparate impact? How burdensome is it, and 
would another framework be less burdensome? Should we adopt all three 
of the steps used in Federal court cases involving disparate impact, a 
selection of them, or different steps? If not, what specific components 
of a burden-shifting framework should we include?
    63. If we adopt a burden-shifting framework similar to that used in 
Federal court, what specifically should we require at each step of the 
analysis? What type of evidence or data sources would we look for to 
substantiate the presence of a policy or practice that 
disproportionately affects an individual, group, or community that 
meets one of the listed characteristics? EveryoneOn supports the 
adoption of rules that, similar to those established under the Fair 
Housing Act, would prohibit practices based on ``discriminatory effect, 
even if not motivated by discriminatory intent,'' and suggests that 
examples of such discriminatory effect could be found in ``the 
assessment of unduly high fees, service interruptions, unreliable 
internet service in low-income neighborhoods, and unfair barriers such 
as credit checks, deposits, etc. when subscribing to or reestablishing 
service.'' Should we identify these and other types of practices as 
prima facie evidence of disparate impact when supported by statistical 
or other reliable evidence of their disproportionate impact on 
individuals or groups determined by reference to protected 
characteristics? The Multicultural Media, Telecom and Internet Council 
suggests that the existence of a statistical disparity connected to a 
provider's policies or practices would be required to make an initial 
case of disparate impact. Should we adopt that standard, or a different 
one? Under a traditional burden-shifting approach, how would a provider 
show that it had a substantial legitimate justification for its policy 
or practice? Would proof that the challenged practice or procedure was 
necessitated by genuine technical and economic feasibility concerns 
provide the necessary showing to rebut the prima facie case? Are there 
any substantial business justifications that we should recognize in 
this context other than genuine technical and economic feasibility 
concerns? Are there other ways that we might incorporate the 
consideration of technical and economic feasibility into this step of 
the traditional, three-step analysis? And what should we require to 
establish an alternative practice that would achieve the same objective 
but with less discriminatory effect? Can we look to existing precedent 
to answer these questions? And do we need to establish these standards 
at this point, or should we allow them to be refined on a case-by-case 
basis going forward?
    64. Disparate Treatment Framework. We seek comment on how we should 
structure our rules to implement a prohibition of digital 
discrimination of access based on disparate treatment. In general, 
courts have used several analytical frameworks to evaluate claims of 
intentional discrimination. The Connecticut Office of State Broadband & 
Office of Consumer Counsel suggests that we use a burden shifting 
system based on the McDonnell Douglas framework. Under the McDonnell 
Douglas framework, a claim of discrimination proceeds through three 
steps: (1) the plaintiff 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. We seek comment on whether to adopt this framework to 
analyze claims of intentional digital discrimination of access. Is this 
the best way to analyze claims of intentional discrimination? Are there 
certain situations in which it would work better than others? If so, 
what situations and why? How burdensome is this analysis, and would 
other frameworks be less burdensome? If we adopt rules incorporating 
this framework, would we need to make any changes to accommodate the 
specific direction of section 60506 and, if so, what changes would be 
appropriate?
    65. If we adopt a burden-shifting framework similar to McDonnell 
Douglas, what specifically would we require at each step of the 
analysis? What types of evidence should we consider sufficient to 
demonstrate discriminatory intent? For example, without access to the 
internal communications of a broadband provider, how would a subscriber 
support a claim of intentional digital discrimination? What types of 
data sources could the Commission or subscribers use to analyze 
potential claims? How might a Commission data collection fit into this 
process? In the context of broadband internet access service, how would 
the Commission evaluate the ``fit'' between the challenged practice and 
the justifications offered in support of it? Does consideration of 
technical and economic feasibility fit in this step of the analysis? On 
what basis might we determine that any proffered reasons are 
pretextual? Can we look to existing precedent to answer these 
questions? And do we need to establish these standards at this point, 
or should we allow them to be refined on a case-by-case basis going 
forward?
    66. We seek more focused comment on how to incorporate section 
60506's direction to account for ``technical and economic feasibility'' 
into any intentional discrimination prohibition we adopt. In the 
McDonnell Douglas framework, once a prima facie case is made, the 
burden shifts to the provider to demonstrate that the conduct is not 
motivated by discrimination but is instead based on legitimate non-
discriminatory reasons. Does following that model adequately ``tak[e] 
into account the issues of technical and economic feasibility''? Or are 
there instances in the context of broadband service where intentional 
discrimination is justified by technical and economic feasibility? In 
particular, we seek comment on how subsection 60506(b)(1)'s inclusion 
of ``income level'' as a listed characteristic fits into this 
framework. For example, should a provider be permitted to defend a 
claim of income-based intentional discrimination by offering 
projections showing that deploying to a particular community would 
likely produce a lower-than-normal rate of return on investment? How 
are we to determine whether a proffered economic justification, such as 
rate of return, is a pretext for income-based discrimination? Some 
commenters argue that a smaller-than-normal profit margin should not be 
a sufficient reason

[[Page 3695]]

to claim economic infeasibility and that the Commission should rarely 
excuse discrimination on such grounds. We seek comment on this view and 
on the National Digital Inclusion Alliance's suggestion that we 
establish a process for providers to identify a technical or economic 
feasibility justification, provide relevant proof, and request a waiver 
from the obligations we impose under section 60506. Would such a system 
operate as a standalone waiver process in the context of any rules 
preventing digital discrimination of access or function only as part of 
a provider's defense to claims of digital discrimination? Would a 
standalone process confer benefits that are not already available under 
the Commission's general waiver authority?
    67. Other Frameworks. Rather than adopt one of the frameworks 
elaborated above, should we take a different approach to analyzing 
claims of digital discrimination of access under a broad prohibition? 
CTIA argues that a burden shifting process is a ``poor fit here'' 
because it would be highly burdensome on broadband internet access 
service providers, and broadband coverage and service varies from 
location to location. We seek comment on these arguments. Under an 
alternative framework for intentional discrimination called the 
Arlington Heights approach, courts look to a ``mosaic'' of factors, 
that when taken together, can demonstrate discriminatory intent. These 
factors might include: (i) statistics demonstrating a pattern of 
discriminatory effect; (ii) historical background; (iii) the sequence 
of events leading up to the decision; (iv) departures from normal 
procedures or conclusions; (v) relevant legislative or administrative 
history; and (vi) a consistent pattern of actions that impose a much 
greater harm on minorities than non-minorities. Would this type of 
framework be better suited to this context? Why or why not? Are there 
other frameworks we should consider? Rather than adopting a framework 
for case-by-case review, should we simply list prohibited practices? 
Would that approach adequately address digital discrimination of access 
or would it be too limited to adequately capture all instances of 
digital discrimination of access? How could that approach evolve with 
changing practices and a changing market? Alternatively, does the 
inaccessibility of intent evidence require some form of burden shifting 
framework?
b. Enforcement
    68. If we were to adopt a broad prohibition on digital 
discrimination, we seek comment on the most effective framework for 
enforcing it. In the Notice of Inquiry, we sought comment on whether we 
should establish an alternative complaint process, separate from our 
existing informal complaint system, for violations of the rules we 
adopt. We now seek comment on whether to rely on the standard FCC 
enforcement model, establish a complaint system, or enable or empower 
third parties to enforce the rules we adopt, and on the scope of our 
authority to adopt each approach.
    69. FCC Enforcement. We seek comment on whether our current FCC 
enforcement capabilities are the best and most effective avenue to 
accomplish congressional intent. Are there certain characteristics or 
features of our various enforcement processes that would make it 
difficult for us to enforce compliance with our rules implementing 
section 60506? If so, how might we address those issues so as to 
effectively enforce the rules we ultimately adopt? TURN encourages us 
to consider using our existing enforcement toolkit of letters of 
inquiry, notice of apparent liability, and forfeiture orders to enforce 
our rules prohibiting digital discrimination of access. We seek comment 
on these ideas and on whether these tools are appropriate and 
sufficient for enforcing claims of digital discrimination of access. 
Should we rely principally or exclusively on FCC staff-initiated 
investigations to enforce our rules, with the possibility of monetary 
forfeitures or other penalties for offending conduct? Would such an 
approach unduly constrain enforcement of the rules by channeling most, 
if not all, of the enforcement activity through our investigations 
staff? Are there better, more effective ways for us to enforce our 
rules in this context? If we adopt a burden-shifting analysis for 
enforcement of any prohibition we adopt, is the Commission's 
traditional investigative process sufficiently flexible to accommodate 
such a framework? Or would we need to modify or adopt new processes to 
enable a burden-shifting analysis?
    70. We seek comment on the punishments or remedies the Commission 
could impose and award as part of our enforcement of rules prohibiting 
digital discrimination of access. Are monetary forfeitures the 
appropriate punishment in proven cases of digital discrimination of 
access? What other punishments or remedies might be appropriate? The 
Leadership Conference on Civil and Human Rights urges us to create 
rules that will enable us to effectively collect any financial 
penalties we impose. We seek comment on what rules we might adopt to 
ensure our ability to collect any monetary forfeitures we might impose 
upon determining that a respondent has engaged in digital 
discrimination of access. Many of our staff-initiated investigations of 
alleged violations of the Communications Act or our rules are resolved 
through consent decrees. The Leadership Conference on Civil and Human 
Rights argues that, for consent decrees to be effective in the context 
of digital discrimination of access, we need to have sufficient 
``capacity to monitor and ensure that any consent decrees are fully 
complied with.'' We seek comment on what changes, if any, we should 
make to our consent decree process to ensure it is an effective remedy 
in this context. Are there options other than fines and consent decrees 
that we should consider as possible remedies?
    71. We seek comment on our authority to address violations of any 
rules prohibiting digital discrimination of access we adopt through 
Commission enforcement. Are there limitations on our ability to enforce 
violations of such rules or act upon complaints of digital 
discrimination of access? (The Communications Act general enforcement 
and penal authority are provided for in section 401 and Title V of the 
Communications Act.) The Commission routinely uses section 503 
authority under the Communications Act to impose monetary forfeitures 
against those who, among other things, ``willfully or repeatedly'' 
violate ``any rule, regulation, or order issued by the Commission.'' 
Violations of Commission rules can also be enforced under sections 501, 
502, and 401 of the Communications Act. AT&T argues that the 
Communications Act's Subchapter V enforcement remedies may not be 
available to the Commission because section 60506 was not enacted ``as 
part of the Communications Act even though [Congress] explicitly [took] 
that step with other Infrastructure Act provisions.'' We seek comment 
on this argument and on whether we lack authority to enforce rules 
adopted consistent with congressional direction in section 60506. Does 
the inclusion of subsection 60506(e), which requires us to revise our 
``public complaint process to accept complaints from consumers or other 
members of the public that relate to digital discrimination,'' evidence 
Congress's intent that the Commission act on digital discrimination 
complaints and enforce rules prohibiting digital discrimination of 
access? Does the inclusion of subsection 60506(b), which directs us to 
adopt rules to ``facilitate

[[Page 3696]]

equal access'' including addressing digital discrimination of access, 
evidence the same? Do we have either direct or ancillary authority 
under section 4(i) of the Communications Act to enforce rules 
prohibiting digital discrimination of access as necessary to discharge 
our statutory mandate of ``preventing'' digital discrimination of 
access? Could we enforce these rules in other ways, such as by barring 
offending providers from participating in funding programs or finding 
that violations of our digital discrimination rules raise character 
qualification issues? Should we expand our character policy statement 
to include violations of our rules barring digital discrimination of 
access? If so, how? Should it apply only to a pattern of 
discrimination?
    72. Structured Complaint Process. We next seek comment on whether 
we should establish a structured process for adjudicating formal 
complaints alleging violations of any rules we adopt in this 
proceeding. Under our informal consumer process, discussed above, there 
is no filing fee and any complaints would aid the Commission in 
identifying potential areas for investigation. A structured complaint 
process, in contrast, would include a more defined dispute mechanism 
that results in a Commission determination on the issue, such as 
currently exists under our rules promulgated pursuant to section 208 of 
the Communications Act. WISPA argues that there is no need for the 
Commission to create an alternative complaint process because our 
informal consumer complaint process is sufficient, and other commenters 
argue that a complaint process requiring provider response and formal 
Commission adjudication may be overly burdensome. We seek comment on 
whether we should adopt a structured complaint process to provide 
parties with the flexibility to choose between two systems. Would our 
structured complaint process be accessible to and effective for 
complainants, or would the resource imbalance between consumers and 
providers render the process ineffective at resolving complaints of 
digital discrimination? Are there steps we could take to ensure that 
our structured complaint process is accessible and effective? And would 
a structured complaint system be unduly burdensome to the Commission, 
providers, or complainants? Does that burden outweigh any benefits that 
might be offered by such a formal complaint process? Would our decision 
to adopt a particular definition of digital discrimination of access, 
or to adopt a particular analytical framework for claims of digital 
discrimination of access, have any bearing on what types of complaint 
processes we should create?
    73. If the Commission were to adopt a structured complaint process 
for claims of digital discrimination of access, we seek comment on the 
design of this process and remedies it could provide. Should we model 
our complaint process on the existing complaint process established 
pursuant to section 208 of the Communications Act? Under section 208, 
complainants can file using an informal or formal process. Under the 
informal process, the complainant submits a statement in writing 
identifying the carrier against which the complaint is made, a complete 
statement of facts and the relief sought. No fee is required and the 
Commission will transmit the complaint to the carrier for investigation 
with a prescribed response time. In contrast, the formal complaint 
process requires a fee and is similar to civil litigation in that it 
involves a complaint, answer, reply, and often discovery, motions and 
briefs. Formal complaints require the complainant to include in the 
complaint specific facts and evidence supporting all claims in the 
complaint. What aspects of these section 208 complaint processes should 
we incorporate into any new process we might establish? As Leadership 
Conference on Civil and Human Rights advocates, would the three-part 
burden shifting process courts use to examine complaints brought under 
section 202 be instructive? If we were to adopt a similar framework, 
what modifications, if any, would we make to best apply it to the 
context of this proceeding? Should we maintain a separate informal and 
formal process for digital discrimination of access complaints or 
should we consolidate and just have one complaint process? If we just 
have one, what aspects would we retain from each process? Would it be 
appropriate to permit fact discovery in such a process? If so, how 
could that process be tailored to avoid undue burdens while providing 
relevant information? We also seek comment on whether a dispute 
assistance process modeled after Sec.  14.32 of the Commission's rules 
would be useful in the context of resolving claims of digital 
discrimination of access. Under this system, a consumer or other party 
can submit to the Commission a claim that a manufacturer or service 
provider is acting in violation of certain sections of the 
Communications Act and Commission rules, the Commission forwards the 
request for dispute assistance to the specified provider/manufacturer 
and assists the claimant and provider/manufacturer in reaching a 
settlement. If after thirty days a settlement has not been reached, the 
claimant can file an informal complaint with the Commission. Would a 
similar system aid in the timely and effective resolution of digital 
discrimination claims?
    74. We further seek comment on whether we should borrow aspects of 
the Equal Employment Opportunity Commission's (EEOC) complaint 
adjudication model. For example, similar to EEOC processes, should we 
authorize an expert within the Commission to review and investigate 
complaints and vest such expert with the authority to dismiss the 
complaint or issue a ``non-binding probable cause determination 
letter''? Would this, as the Multicultural Media, Telecom and internet 
Council argues, encourage settlement, prevent the Commission from being 
overwhelmed with complaints, and still ensure that individuals have 
access to the legal system if necessary? As with the EEOC's process, 
should we also include a voluntary alternative dispute resolution 
option such as mediation? How could we design any complaint process to 
ensure it is not abused, promotes transparency, and mitigates any 
privacy concerns? What remedies could the Commission offer to consumers 
that successfully prove a claim of digital discrimination of access? 
Would a financial penalty be a meaningful remedy in most such cases? Or 
would we need to direct the provider or target of the complaint to take 
certain action? Are there other models of enforcement employed in 
similar regulatory regimes by other Federal agencies that would be 
appropriate for consideration here?
    75. We seek comment on any limits to our authority to adopt a 
structured complaint process for claims of digital discrimination of 
access. Do we have authority under section 208 of the Communications 
Act to accept and investigate claims of violations of rules prohibiting 
digital discrimination of access? If not, do we have authority to 
create a new formal complaint process under section 60506, whether 
under subsection 60506(e)'s direction to revise our complaint process 
or some other provision? If not, on what basis do we ``ha[ve] the power 
to review and act upon'' complaints sua sponte, as Public Knowledge 
argues? Are there other sources of authority we could rely on to create 
a structured complaint process? Does the scope of our authority to 
adopt a structured complaint process depend in any way on whether we 
define

[[Page 3697]]

discrimination as based on disparate impact or disparate treatment? If 
we have authority to create a complaint process, are there nonetheless 
limits on our authority to offer complainants certain types of relief, 
or any relief at all?
    76. State and Local Enforcement. We also seek comment on what 
processes our rules could include for two suggestions put forth in the 
record: enforcement by state and local officials, and by private right 
of action. In what ways might we incorporate state and local officials 
into our enforcement approach for claims of digital discrimination of 
access, and what roles might we play in state and local enforcement 
schemes? Should we encourage states and localities to adopt and enforce 
independently rules that are substantively similar to those we adopt in 
this proceeding? What other models of coordination with state and local 
officials might we look to when considering the enforcement of our 
rules? Do we have authority to create rights that private parties could 
enforce or prosecute before state and local governmental bodies or in 
the courts? On what basis, and before which entities would we do so? 
Should we interpret section 60506 as solely directing the Commission to 
update its administrative complaint process and not providing separate 
authority to create a private right of action?
    77. Other Enforcement Processes. Are there any other enforcement 
processes, beyond the three categories identified above, that we should 
consider creating or adopting? What would those processes be, and why 
would they be better suited to enforcing our rules than the processes 
discussed above?
2. Affirmative Obligations
    78. We next seek comment on what affirmative obligations we could 
place on providers to address digital discrimination of access. In the 
Notice of Inquiry, we sought comment on whether the Commission should 
``adopt rules to require, encourage, or otherwise incentivize'' covered 
entities to ``take affirmative steps to prevent digital 
discrimination.'' In response, commenters offer various proposals about 
steps providers could affirmatively take to address digital 
discrimination of access, including having providers voluntarily devise 
and adopt plans to address digital equity, mirroring rules from other 
agencies, and providing consumers information that could highlight 
potential discrimination. We seek comment on these proposals.
    79. First, we seek comment on Microsoft's proposal for providers to 
use Commission data to formulate plans to address digital 
discrimination of access. Microsoft observes that providers, using the 
new Broadband Data Collection tool, could ``gather demographic and 
usage information from . . . surveys they would conduct of their 
subscribers,'' which could then be filed with the Commission. Microsoft 
asserts that this demographic data could also be used by providers, on 
a voluntary basis, to ``create a plan to enhance digital equity in 
their operations,'' which would act as ``an early step'' in identifying 
issues involving digital discrimination. Microsoft argues that the 
Commission should require submission of such plans before enacting any 
other rules of its own, as it asserts that both the Commission and 
industry lack sufficient data on issues regarding digital 
discrimination. Would this proposal meaningfully address digital 
discrimination, and should we adopt it? What would such plans look 
like? Should, as Microsoft argues, the Commission allow providers to 
adopt such plans on a voluntary basis and have them treated as 
confidential by the Commission? Although Microsoft argues we should 
adopt this proposal before adopting rules addressing digital 
discrimination of access, would this approach nonetheless be a useful 
complement to other rules we consider in this Notice? If we adopt a 
broad prohibition on digital discrimination of access, how would this 
type of transparency regime relate to that prohibition? Would certain 
practices be expected or required in the filings; and would 
participation be chilled if providers are concerned that certain 
practices could evidence noncompliance with our rules?
    80. We next seek comment on Leadership Conference on Civil and 
Human Rights' proposal that the Commission adopt rules mirroring a 
provision of the Fair Housing Act that requires Department of Housing 
and Urban Development (HUD) grantees to affirmatively further fair 
housing. Under this provision, HUD grantees, as recipients of HUD 
funding, must not only abide by HUD rules on fair housing, but also 
generally promote equity in housing, although HUD ``does not require 
any specific form of planning or submission of fair housing plans to 
HUD.'' The Leadership Conference on Civil and Human Rights argues that 
the Commission could require providers to do the same with respect to 
combating digital discrimination, with implementation modeled after 
HUD's approach. What should rules modeled after HUD's entail in this 
context? Would it necessitate that covered entities take any specific 
steps to combat or monitor for instances of digital discrimination of 
access? Should the Commission impose such an obligation, a variation 
thereof, or other general requirement? What would such a rule look 
like, and what would it accomplish in this context?
    81. We seek comment on record proposals that we require providers 
to give information to their subscribers on relevant requirements and 
resources related to the Infrastructure Act, this proceeding, and 
digital discrimination of access more generally. For example, TURN 
proposes that information about programs that subsidize the cost of 
broadband should be disseminated to consumers by providers. TURN also 
proposes that providers distribute public safety information regarding 
``outages, the need for backup power, [and] emergency phone numbers,'' 
particularly in low-income areas and those subject to natural 
disasters. Additionally, TURN and other commenters contend that 
providers should offer information about how to seek redress if a 
consumer believes that they have experienced digital discrimination of 
access. Should we adopt any of these proposals, or do so with any 
adjustments? How should we require that any such information be 
distributed, both in terms of frequency and format? (For example, TURN 
argues that disclosure of available channels for redress in the event 
of digital discrimination should be made with the same ``frequency that 
privacy notices are provided and available in various mediums, 
including, but not limited to, websites, billing inserts, and 
emails.'') Are there other kinds of information not specified in TURN's 
comments that covered entities should be required to disseminate? For 
example, should we require providers to make available information 
about their service that would promote the ability of consumers to 
identify when they may be experiencing digital discrimination? What 
information should we require providers to make available in this 
respect, and how would we design such a requirement to ensure that 
consumers can understand the information provided? TechFreedom suggests 
that proposals requiring dissemination of additional information would 
increase the price of broadband for consumers by increasing costs to 
providers. What would the costs be to providers, would they have the 
effect claimed by TechFreedom, and how do any costs

[[Page 3698]]

measure up against the potential benefits of additional disclosures?
    82. What other affirmative steps should we consider requiring 
(whether of providers or others) in order to more effectively combat 
digital discrimination of access? Are there other types of self-
assessment or reporting obligations the Commission should impose? For 
example, should we require providers to audit whether they may be 
engaging in practices that could have a disparate impact on groups 
determined by reference to protected characteristics? How should such 
audits be conducted and using what standards? Should the Commission 
require that covered entities report the results of such audits, and if 
so, how frequently should they be conducted and reported? Should the 
results of such audits be made public? Are there any other transparency 
or disclosure requirements we should impose? Should we require 
providers to disclose or explain to consumers why offerings (whether in 
terms of price, speed, or other aspects) differ as between two given 
geographic areas? Should we adopt rules modeled on cable franchising 
rules to promote the build-out of broadband infrastructure? Should we 
require that providers offer consumers written materials in multiple 
languages? Are there other rules, whether from other agencies, state 
and local governments, or other entities, that we should look to? 
Should we consider different auditing and/or reporting requirements for 
different types of entities?
3. Other Proceedings
    83. We seek further detailed comment on what actions we should take 
in other policy areas identified in the record to address digital 
discrimination of access. In response to the Notice of Inquiry, 
commenters identified a variety of proceedings in which we could take 
action to address digital discrimination.
    84. We first seek comment on actions we could take to promote 
infrastructure deployment in furtherance of our goal to address digital 
discrimination. Commenters identify topics including addressing state 
and local laws that may impact infrastructure deployment, spectrum 
policy, and municipal broadband as areas for further Commission action 
to address digital discrimination. We seek comment on what specific 
action we should take in these proceedings to address digital 
discrimination, and how that action furthers the goals identified by 
Congress in section 60506. We seek further comment on the record's 
focus on issues regarding broadband service in multiple tenant 
environments (MTEs) such as apartment buildings and offices. Commenters 
cite issues such as conflicts over access to inside wiring; 
insufficient infrastructure for high-speed broadband; lack of economic 
incentives for providers in low-income communities; and exclusive 
rooftop access agreements as areas in which the Commission could act to 
address digital discrimination of access. Should we address some or all 
of these issues in the MTEs proceeding to combat digital discrimination 
of access? How specifically would these actions do so?
    85. We also seek comment on the record discussion about whether and 
how the Commission can use its funding programs to combat digital 
discrimination of access. What programs should the Commission consider 
using in undertaking this effort? What programs relate to digital 
discrimination of access and how? What kinds of modifications, if any, 
would need to these programs? Are there any statutory barriers to using 
these programs to combat digital discrimination of access? Further, we 
seek comment on record arguments that inclusion of section 60506 in 
Division F of the Infrastructure Act signals that the Commission should 
focus on providing funding in its efforts to prevent digital 
discrimination. AT&T argues, for example, that the Infrastructure Act 
primarily concerns spending and that section 60506's directive to 
facilitate equal access, read in this context, primarily represents a 
funding commitment. Is this interpretation correct? Or should we 
understand section 60506 to direct us to take separate and 
complementary action from that elaborated elsewhere in the 
Infrastructure Act? Does the inclusion of section 60506 counsel us to 
tie our funding efforts to preventing and eliminating digital 
discrimination? Should our existing funding programs be revised in any 
way to ensure they do not perpetuate existing inequities? Should 
receipt of funds be contingent on compliance with anti-discrimination 
requirements? Should the Commission coordinate with other agencies to 
ensure such requirements apply to other Federal funding programs, 
including the National Telecommunications and Information 
Administration's (NTIA) Broadband Equity, Access, and Deployment (BEAD) 
Program? What is the relationship, if any, between section 60506(c) and 
the BEAD Program and other Federal broadband deployment funding 
efforts?
4. Other Record Proposals
    86. We seek comment on other record proposals for action we should 
take to fulfill congressional direction to address digital 
discrimination of access beyond the proposals discussed above. In 
response to the Notice of Inquiry, commenters suggest various other 
proposals such as assisting those on Tribal lands, undertaking outreach 
efforts to promote awareness of any digital discrimination rules we 
adopt, and making organizational changes to the Commission. We seek 
further comment on these proposals and any additional steps we should 
take to eliminate digital discrimination of access.
    87. Tribal Lands. We seek comment on any actions we can take to 
address digital discrimination of access on Tribal lands. In response 
to the Notice of Inquiry, one commenter argues that we should take 
dedicated action to facilitate equal access on Tribal lands, including 
by ``offer[ing] technical assistance to Tribal Nations planning their 
own networks . . . creat[ing] a resource to connect Tribes and 
infrastructure partners . . . [and] connect[ing] infrastructure 
partners interest in working with Tribal Nations with training'' on 
issues unique to deploying infrastructure on Tribal lands. We seek 
comment on these record proposals and whether to adopt them, following 
engagement with Tribal partners. In what specific ways do those living 
on Tribal lands uniquely experience digital discrimination of access? 
Is dedicated action necessary to address those issues, or can they be 
addressed by more general rules addressing digital discrimination of 
access? Would some or all of these record proposals effectively address 
any unique digital discrimination of access faced by those living on 
Tribal lands, and would they do so more effectively with any 
modifications? Are there other proposals we should consider?
    88. Outreach. We next seek comment on addressing digital 
discrimination of access through outreach efforts. Numerous commenters 
in the record express support for educational efforts to promote 
digital literacy, including developing a digital literacy program to 
raise awareness of the benefits and availability of broadband and using 
available FCC data to help NTIA direct funds for digital literacy to 
communities most in need, arguing that these efforts can address a lack 
of adoption in areas where providers have already deployed broadband. 
Another commenter advocates that the Commission create an outreach 
program to educate consumers on any rules we adopt addressing digital 
discrimination of access and the avenues of relief available to them. 
We seek comment on these proposals in particular and whether dedicated

[[Page 3699]]

outreach efforts to promote digital literacy and awareness of our rules 
would further prevention or elimination of digital discrimination of 
access. Would digital education efforts be effective to promote 
adoption? If so, what specific digital education efforts should we 
pursue, and should we pursue the suggestions in the record? What issues 
would be most useful to educate consumers about? Are there entities or 
organizations we should collaborate with if we undertake digital 
education efforts? What steps would most effectively promote awareness 
of any digital discrimination rules we adopt? Should we take steps 
beyond those our Consumer and Governmental Affairs Bureau routinely 
takes to advise consumers about Commission rules and public-facing 
processes? If so, what steps should we take?
    89. Commission Organization. We seek comment on any organizational 
changes we should make to the Commission to promote our efforts to 
address digital discrimination of access and assist in enforcement of 
any rules we adopt. Commenters to the Notice of Inquiry offer that we 
should hire staff with experience in discrimination law and argue that 
we should establish a dedicated ombudsperson role and Office of Civil 
Rights as part of our process for addressing claims of digital 
discrimination of access. Should we pursue these organizational 
changes? What would be the benefits of establishing an ombudsperson for 
digital discrimination, and what specific responsibilities would they 
have? Should an ombudsperson publish an annual report? Would an 
independent, impartial, and confidential ombudsperson be useful for 
consumers and entities subject to our rules in navigating any rules and 
complaint processes we adopt? Would it be useful to house an 
ombudsperson, and any Commission staff with expertise on discrimination 
issues, in an Office of Civil Rights? Would establishing a new 
organizational unit be preferable to distributing this expertise among 
the Commission's current Bureaus and Offices? If we did establish an 
Office of Civil Rights, what issues would such an office oversee, what 
would be the scope of its authority and responsibilities, and how would 
it relate to existing Commission organizational units such as the 
Office of Native Affairs and Policy?
    90. Other Necessary Steps. We seek comment on any other steps we 
should take to eliminate digital discrimination of access. Section 
60506 directs us to ``identify[ ] necessary steps for the Commission[ ] 
to take to eliminate'' digital discrimination of access. What steps, 
beyond adopting and enforcing rules to ``prevent'' digital 
discrimination of access, are necessary for the Commission to take to 
``eliminate'' such discrimination? And how would any such steps 
specifically ``eliminate'' digital discrimination of access rather than 
``prevent'' it?
5. Legal Authority
    91. We seek comment on the scope of our authority to adopt rules 
under section 60506 of the Infrastructure Act. Do the novel structure 
and language of section 60506 provide the Commission with broad 
rulemaking authority? Paragraph (b) of section 60506 gives us the broad 
direction to ``adopt final rules to facilitate equal access to 
broadband . . . including'' addressing digital discrimination of 
access. Since this grant ``include[s]'' adopting rules to address 
digital discrimination of access, can the Commission adopt rules to 
facilitate equal access that address issues other than, but related to, 
digital discrimination of access? If so, what issues do commenters 
believe we have the authority to address under section 60506 of the 
Infrastructure Act? We also observe that while anti-discrimination laws 
often revolve around a prohibition of a policy or practice, Congress in 
this instance gave us the broad direction and the authority to develop 
our own rules to ``facilitate equal access,'' of which addressing 
digital discrimination of access is a part. Does this structure signify 
a broad grant of authority to combat digital discrimination of access 
as part of efforts to ``facilitate equal access to broadband''? Is that 
authority broader, or narrower, than that given to other Federal 
agencies tasked with administering and enforcing statutory prohibitions 
on discrimination? We seek comment on the scope of the Commission's 
rulemaking authority in light of the structure and language of section 
60506 of the Infrastructure Act.
    92. We seek further comment on our authority under paragraphs 
(b)(1) and (b)(2) of section 60506. In the Notice of Inquiry, the 
Commission sought comment on whether ``preventing digital 
discrimination'' in paragraph (b)(1) and ``eliminat[ing] 
discrimination'' in paragraph (b)(2) provided the Commission with 
distinct authority to enact digital discrimination rules. Commenters 
agree that ``prevent'' and ``eliminate'' offer different authority, and 
that ``prevent'' confers upon the Commission the authority to stop 
digital discrimination before it occurs. Regarding ``eliminate,'' some 
commenters argue that the term allows the Commission to remove 
discrimination that already exists and the impact thereof. Other 
commenters argue that ``eliminate'' does not provide the Commission 
with the authority to impose ``retroactive liability'' for past 
deployment decisions. We seek further comment on the authority offered 
by each of these terms. Does the word ``prevent'' give us broad 
discretion to adopt prophylactic measures to stop digital 
discrimination of access from occurring going forward? What are the 
bounds of that authority? How does that authority differ from a more 
standard prohibition on discriminatory conduct or outcomes? What does 
the word ``eliminate'' offer? Does it give us discretion to address 
digital discrimination of access that already exists? Is there a 
distinction between addressing currently existing digital 
discrimination of access and imposing ``retroactive liability''? Does 
the statutory language that we should ``identify[ ] necessary steps . . 
. to eliminate [digital] discrimination'' in any way guide how we 
understand this direction? Did Congress intend for us to merely 
identify steps, and not take them? Since this term is used in the 
context of our greater direction to ``facilitate equal access,'' do we 
nonetheless have discretion to address current-existent digital 
discrimination of access as part of that effort? In considering our 
authority under section 60506, should we understand it as a ``civil 
rights'' statute or a ``universal service'' statute, and what is the 
significance of either interpretation?

D. State and Local Model Policies and Best Practices

    93. We propose to adopt, as guidelines for states and localities, 
the best practices to prevent digital discrimination and promote 
digital equity recommended by the Communications Equity and Diversity 
Council (CEDC). Subsection 60506(d) of the Infrastructure Act directed 
the Commission to ``develop model policies and best practices that can 
be adopted by states and localities to ensure that broadband internet 
access service providers do not engage in digital discrimination.'' To 
help fulfill this direction, Chairwoman Rosenworcel directed the CEDC 
to issue recommendations on this subject. The Digital Equity and 
Inclusion (DEI) Working Group issued a report recommending both (1) 
model policies and best practices to prevent digital discrimination by 
broadband providers, and (2) best practices to advance digital equity 
for states and localities. On November 7, 2022, the members of the full 
CEDC voted unanimously in favor

[[Page 3700]]

of finalizing the report for the Commission. We now propose to adopt 
both sets of recommendations as guidelines for states and localities, 
in fulfillment of subsection 60506(d), acknowledging that this does not 
limit states and localities from taking additional steps to prevent and 
eliminate digital discrimination of access, and seek comment on this 
proposal.
    94. First, we seek comment on our proposal to adopt the report's 
``Model Policies and Best Practices to Prevent Digital Discrimination 
by ISPs.'' The report outlines six model policies and best practices 
for states and localities: (1) developing and making available 
recurring ``broadband equity assessments''; (2) facilitating awareness 
among landlords regarding ``tenant choice and competition'' in MTEs; 
(3) identifying ways to ``incentivize equitable deployment''; (4) 
managing public property (such as rights-of-way) ``to avert 
discriminatory behaviors that result in or sustain digital 
discrimination and redlining''; (5) convening regular meetings of 
stakeholders to evaluate ``areas and households unserved and 
underserved with competitive and quality broadband options''; and (6) 
encouraging ``fair competition and choice.'' These model policies and 
best practices reflect the perspective of the industry, public interest 
stakeholders, local government representatives, and others, and we 
tentatively conclude that adopting these consensus recommendations will 
be effective in addressing digital discrimination of access at the 
state and local level. We seek comment on whether to adopt these best 
practices. Do they provide states and localities with the tools and 
resources necessary to provide equal access to broadband service in 
their communities? And do they appropriately cover the scope of issues 
these model policies and best practices should address? Should any be 
removed, or should we consider adding any additional model policies and 
best practices? We seek comment on whether the best practices, as 
recommended in the report, can be improved and how. We also seek 
comment on any additional support the Commission can provide to states, 
localities, and internet service providers to effectuate these 
recommendations.
    95. Second, we seek comment on our proposal to adopt the report's 
``Best Practices to Advance Digital Equity for State and Localities.'' 
The report outlines thirteen model policies and best practices for 
states and localities, which, in sum, recommend: (1) raising awareness 
about and streamlining the application process for government benefit 
programs such as the Affordable Connectivity Program; (2) promoting 
digital literacy; and (3) increasing access to devices and spaces to 
access the internet. The best practices to advance digital equity for 
state and localities reflect the consensus of industry and public 
interest stakeholders, and we believe that they can serve as an 
effective framework for states and localities to advance digital 
equity. We seek comment on whether to adopt these best practices as 
guidelines for states and localities. Do they equip states and 
localities with the tools and resources necessary to advance digital 
equity? And do they appropriately cover the scope of issues these model 
best practices should address? Should any be removed, or should we 
consider adding any additional best practices? We seek comment on 
whether the best practices, as recommended in the report, can be 
improved, and how.

E. Other Efforts To Promote Digital Equity and Inclusion

    96. 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 
are or have been historically underserved, marginalized, or adversely 
affected by persistent poverty or inequality, invites comment on any 
equity-related considerations and benefits (if any) that may be 
associated with the proposals and issues discussed herein. (Section 1 
of the Communications Act of 1934 as amended provides that the FCC 
``regulat[es] interstate and foreign commerce in communication by wire 
and radio so as to make [such service] available, so far as possible, 
to all the people of the United States, without discrimination on the 
basis of race, color, religion, national origin, or sex.'') (The term 
``equity'' is used here 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 the scope of the Commission's relevant legal 
authority.

IV. Initial Regulatory Flexibility Analysis

    97. 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 the Notice of 
Proposed Rulemaking (NPRM). 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 NPRM. The Commission will send a copy of the Notice, 
including this IRFA, to the Chief Counsel for Advocacy of the Small 
Business Administration (SBA). In addition, the NPRM and IRFA (or 
summaries thereof) will be published in the Federal Register.

A. Need for and Objectives of the Proposed Rules

    98. The NPRM furthers the Commission's efforts to promote equal 
access to broadband to all people living in the Nation. Specifically, 
the NPRM seeks focused comment on the rules the Commission should adopt 
to fulfill the congressional direction in section 60506 of the 
Infrastructure Act to facilitate equal access to broadband, prevent 
digital discrimination of access, and identify steps necessary to 
eliminate such discrimination. The NPRM also proposes and seeks comment 
on possible definitions of ``digital discrimination of access'' as used 
in the Infrastructure Act. The NPRM next proposes to revise the 
Commission's public complaint process to accept complaints related to 
digital discrimination. The NPRM also proposes to adopt the model 
policies and best practices for states and localities regarding digital 
discrimination that have been recommended by the Communications Equity 
and Diversity Council.

B. Legal Basis

    99. The NPRM proposes to identify authority under section 60506 of 
the Infrastructure Act and seeks comment on the bounds of the 
Commission's authority to enact the proposed rules.

[[Page 3701]]

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

    100. 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 
NPRM 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.
    101. 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 
States, which translates to 32.5 million businesses.
    102. 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. (The IRS benchmark is similar to the 
population of less than 50,000 benchmark in 5 U.S.C. 601(5) that is 
used to define a small governmental jurisdiction. Therefore, the IRS 
benchmark has been used to estimate the number small organizations in 
this small entity description. We note that the IRS data does not 
provide information on whether a small exempt organization is 
independently owned and operated or dominant in its field.) 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.
    103. 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. (While the special 
purpose governments category also includes local special district 
governments, the 2017 Census of Governments data does not provide data 
aggregated based on population size for the special purpose governments 
category. Therefore, only data from independent school districts is 
included in the special purpose governments category.) 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.'' (This total is derived from the sum of the number of 
general purpose governments (county, municipal and town or township) 
with populations of less than 50,000 (36,931) and the number of special 
purpose governments--independent school districts with enrollment 
populations of less than 50,000 (12,040), from the 2017 Census of 
Governments--Organizations tbls.5, 6 & 10.)
1. Wireline Carriers
    104. 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 voice 
over internet protocol (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. 
(Fixed Local Service Providers include the following types of 
providers: Incumbent Local Exchange Carriers (ILECs), Competitive 
Access Providers (CAPs) and Competitive Local Exchange Carriers 
(CLECs), Cable/Coax CLECs, Interconnected VOIP Providers, Non-
Interconnected VOIP Providers, Shared-Tenant Service Providers, Audio 
Bridge Service Providers, and Other Local Service Providers. Local 
Resellers fall into another U.S. Census Bureau industry group and 
therefore data for these providers is not included in this industry.)
    105. 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. (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.) 
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.
    106. 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. (Fixed Local Exchange Service Providers include the 
following types of providers: Incumbent Local Exchange Carriers 
(ILECs), Competitive Access Providers (CAPs) and Competitive Local 
Exchange Carriers (CLECs), Cable/Coax CLECs, Interconnected VOIP 
Providers,

[[Page 3702]]

Non-Interconnected VOIP Providers, Shared-Tenant Service Providers, 
Audio Bridge Service Providers, Local Resellers, and Other 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.
    107. 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. (Competitive Local Exchange Service 
Providers include the following types of providers: Competitive Access 
Providers (CAPs) and Competitive Local Exchange Carriers (CLECs), 
Cable/Coax CLECs, Interconnected VOIP Providers, Non-Interconnected 
VOIP Providers, Shared-Tenant Service Providers, Audio Bridge Service 
Providers, Local Resellers, and Other Local 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.
    108. 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.
    109. 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. (The Commission does receive 
such information on a case-by-case basis if a cable operator appeals a 
local franchise authority's finding that the operator does not qualify 
as a small cable operator pursuant to Sec.  76.901(e) of the 
Commission's rules. See 47 CFR 76.910(b).) 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.
    110. 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.
2. Wireless Carriers
    111. 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.

[[Page 3703]]

    112. 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. 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.
3. Resellers
    113. 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, 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.
    114. 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 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. 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, 2020, there were 518 providers that reported they were 
engaged in the provision of toll services. Of these providers, the 
Commission estimates that 495 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.
4. Other Entities
    115. 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 internet service providers (ISPs)) or 
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.

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

    116. The NPRM proposes to revise the Commission's public complaint 
process to accept complaints regarding digital discrimination of 
access, as directed in section 60506 of the Infrastructure Act by: (1) 
adding a dedicated pathway for digital discrimination of access 
complaints; (2) collecting voluntary demographic information from 
filers who submit digital discrimination of access complaints; and (3) 
establishing a clear pathway for organizations to submit digital 
discrimination of access complaints. The NPRM seeks comment on these 
proposals. The NPRM also seeks comment and any other changes that the 
Commission should make to the public complaint process to accept 
complaints related to digital discrimination of access. The NPRM also 
seeks comment on record proposals to place affirmative obligations the 
Commission should place on broadband providers, including reporting and 
recordkeeping requirements.

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

    117. The RFA requires an agency to describe any significant 
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.
    118. The NPRM seeks comment how to incorporate section 60506 of the 
Infrastructure Act's direction to account for ``technical and economic 
feasibility'' in the Commission's definition of ``digital 
discrimination of access,''

[[Page 3704]]

including issues of technical and economic feasibility faced by small 
entities. The NPRM also seeks comment on the burden that various record 
proposals to combat digital discrimination of access would place on 
covered entities, including small entities, and ways to minimize that 
burden.

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

    119. None.

V. Procedural Matters

    120. Ex Parte Requirements. This proceeding 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 Sec.  1.1206(b). In proceedings governed 
by Rule Sec.  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.
    121. Paperwork Reduction Act. This document contains proposed new 
or modified 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, 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.

VI. Ordering Clauses

    122. Accordingly, it is ordered, 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) through (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, that the Notice of 
Proposed Rulemaking is adopted.
    123. It is further ordered that, pursuant to applicable procedures 
set forth in Sec. Sec.  1.415 and 1.419 of the Commission's Rules, 47 
CFR 1.415, 1.419, interested parties may file comments on the Notice of 
Proposed Rulemaking on or before 30 days after publication in the 
Federal Register, and reply comments on or before 60 days after 
publication in the Federal Register.
    124. It is further ordered that the Commission's Consumer and 
Governmental Affairs Bureau, Reference Information Center SHALL SEND a 
copy of the Notice of Proposed Rulemaking, including the Initial 
Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of 
the Small Business Administration.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2023-00551 Filed 1-19-23; 8:45 am]
BILLING CODE 6712-01-P