[Federal Register Volume 89, Number 14 (Monday, January 22, 2024)]
[Rules and Regulations]
[Pages 4128-4164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28835]



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Vol. 89

Monday,

No. 14

January 22, 2024

Part III





Federal Communications Commission





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47 CFR Parts 0, 1, and 16





The Infrastructure Investment and Jobs Act: Prevention and Elimination 
of Digital Discrimination; Final Rule

  Federal Register / Vol. 89 , No. 14 / Monday, January 22, 2024 / 
Rules and Regulations  

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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 1, and 16

[GN Docket No. 22-69; FCC 23-100; FR ID 190877]


The Infrastructure Investment and Jobs Act: Prevention and 
Elimination of Digital Discrimination

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) adopts rules pursuant to section 60506 of the 
Infrastructure Investment and Jobs Act (Infrastructure Act) that 
establish a framework to facilitate equal access to broadband internet 
access service by preventing digital discrimination of access. These 
rules address policies and practices that impede equal access to 
broadband, while taking into account issues of technical and economic 
feasibility that pose serious challenges to full achievement of the 
equal access objective. The rules constitute an effective, balanced 
means to accomplish Congress's objective of ensuring that historically 
unserved and underserved communities throughout the Nation have equal 
opportunity to receive high-speed broadband service comparable to that 
received by others, without discrimination as to the terms and 
conditions on which that service is received.

DATES: Effective March 22, 2024, except for the amendment to 47 CFR 
1.717 (amendatory instruction 5), which is delayed indefinitely. FCC 
will publish a document in the Federal Register announcing the 
effective date for the amendment to 47 CFR 1.717.

FOR FURTHER INFORMATION CONTACT: Wireline Competition Bureau, 
Competition Policy Division, Aur[eacute]lie Mathieu, at (202) 418-2194, 
[email protected]. For additional information concerning the 
Paperwork Reduction Act information collection requirements contained 
in this document, send an email to [email protected] or contact Nicole 
Ongele, [email protected].

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Report 
and Order (Report and Order) in GN Docket No. 22-69, FCC 23-100, 
adopted on November 15, 2023, and released on November 20, 2023. The 
full text of this document is available for download at https://docs.fcc.gov/public/attachments/FCC-23-100A1.pdf. 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).

Final Paperwork Reduction Act of 1995 Analysis

    This document may contain new or modified information collection 
requirements subject to the Paperwork Reduction Act of 1995 (PRA), 
Public Law 104-13. This document will be submitted to the Office of 
Management and Budget (OMB) for review under section 3507(d) of the 
PRA. OMB, the general public, and other Federal agencies will be 
invited to comment on the new or modified information collection 
requirements contained in this proceeding.

Congressional Review Act

    The Commission sent a copy of the Report and Order to Congress and 
the Government Accountability Office pursuant to the Congressional 
Review Act, see 5 U.S.C. 801(a)(1)(A).

Synopsis

    1. In this Report and Order, we adopt rules pursuant to section 
60506 of the Infrastructure Act that establish a framework to 
facilitate equal access to broadband internet access service by 
preventing digital discrimination of access. 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 Sec.  
8.1(b) of [the Commission's rules], or any successor regulation.'' 
Infrastructure Act 60501(1); 47 CFR 8.1(b) (defining broadband internet 
access service as ``a mass-market retail service by wire or radio that 
provides the capability to transmit data to and receive data from all 
or substantially all internet endpoints, including any capabilities 
that are incidental to and enable the operation of the communications 
service, but excluding dial-up internet access service. This term also 
encompasses any service that the Commission finds to be providing a 
functional equivalent of the service described in the previous sentence 
or that is used to evade the protections set forth in this part.''). In 
this Report and Order, we use the terms ``broadband,'' ``broadband 
service,'' and ``broadband internet access service'' interchangeably. 
These rules address policies and practices that impede equal access to 
broadband, while taking into account issues of technical and economic 
feasibility that pose serious challenges to full achievement of the 
equal access objective. The rules we adopt today constitute an 
effective, balanced means to accomplish Congress's objective of 
ensuring that historically unserved and underserved communities 
throughout the Nation have equal opportunity to receive high-speed 
broadband service comparable to that received by others, without 
discrimination as to the terms and conditions on which that service is 
received.
    2. The actions taken today are summarized below. Digital 
Discrimination of Access Defined. In furtherance of our goal to 
facilitate equal access to broadband internet access service, we adopt 
the following definition of ``digital discrimination of access'': 
``policies or practices, not justified by genuine issues of technical 
or economic feasibility, that differentially impact consumers' access 
to broadband internet access service based on their income level, race, 
ethnicity, color, religion or national origin, or are intended to have 
such differential impact.'' Under the rules we adopt today, we will 
investigate conduct alleged to be motivated by discriminatory intent, 
as well as conduct alleged to have discriminatory effect, based on 
income level, race, ethnicity, color, religion, or national origin. 
Consistent with the definition of ``equal access'' in the statute, we 
find that differentiation as to any available quality of service metric 
for broadband service may provide a basis for liability under these 
rules, absent sufficient justification.
    3. Technical and Economic Feasibility. Consistent with Congress's 
directive, our definition of digital discrimination of access fully 
takes into account ``issues of technical and economic feasibility,'' 
constituting impediments to full achievement of the equal access goal 
of the statute. We define ``technically feasible'' to mean ``reasonably 
achievable as evidenced by prior success by covered entities under 
similar circumstances or demonstrated technological advances clearly 
indicating that the policy or practice in question may reasonably be 
adopted, implemented, and utilized.'' We similarly define 
``economically feasible'' to mean ``reasonably achievable as evidenced 
by prior success by covered entities under similar circumstances or 
demonstrated new economic conditions clearly indicating that the policy 
or practice in question may reasonably be adopted, implemented, and 
utilized.''
    4. Consumers Afforded Protection from Digital Discrimination, and

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Entities and Services that are Subject to the Prohibition Against 
Digital Discrimination of Access. We adopt rules focusing on whether 
policies and practices differentially impact consumers' access to 
broadband internet access service or are intended to do so. In this 
vein, we specify that ``consumer'' means current and prospective 
subscribers to broadband internet access service, including 
individuals, groups of individuals, organizations, and groups of 
organizations. Moreover, the scope of the rules we adopt today extends 
not only to providers of broadband internet access service, but also to 
entities that facilitate and otherwise affect consumer access to 
broadband internet access service.
    5. We adopt today the same definition of ``broadband internet 
access service'' that appears in our rules at 47 CFR 8.1(b). In 
accordance with section 60506, the rules we adopt today shall apply to 
all policies and practices that affect a consumer's ability to have 
equal access to broadband internet access service, including but not 
limited to deployment, network upgrades, and maintenance. Covered 
elements of service include both technical and non-technical elements 
of service that may affect a consumer's ability to receive and 
effectively utilize the service.
    6. Enforcement. We adopt rules that allow for enforcement of our 
prohibition against digital discrimination of access through self-
initiated Commission investigations and revise our informal complaint 
process to accept complaints alleging digital discrimination of access, 
including offering parties voluntary mediation overseen by Commission 
staff when appropriate. Possible violations will be investigated by 
Commission staff using our standard investigative toolkit, and all 
penalties and remedies will be available when we determine that our 
rules have been violated. The Commission will consider utilizing 
consent decrees when appropriate. We decline, at this time, to create 
an additional process for the filing and adjudication of formal 
complaints akin to section 208 of the Communications Act.
    7. Consumer Complaints. Consistent with Congress's directive, we 
revise our informal consumer complaint process to accept complaints 
from consumers or other members of the public that relate to digital 
discrimination of access by establishing a dedicated pathway for 
digital discrimination of access complaints including from 
organizations, and collecting voluntary demographic information from 
complainants.
    8. State and Local Model Policies and Best Practices. We adopt the 
Communications Equity and Diversity Council's recommendations that 
propose model policies and practices for states and localities to 
address digital discrimination of access. We emphasize that these model 
policies and practices do not foreclose adoption by states and 
localities of additional measures to ensure equal access to broadband 
service in their communities.

Background

    9. Section 60506 of Division F, Title V of the Infrastructure Act 
is entitled ``Digital Discrimination.'' This provision supports 
extensive broadband expansion programs in the Infrastructure Act and 
requires that the Commission adopt rules to facilitate equal access to 
broadband internet service. Section 60506(b) reads: ``Not later than 2 
years after November 15, 2021, the Commission shall adopt final rules 
to facilitate equal access to broadband internet access service, taking 
into account the issues of technical and economic feasibility presented 
by that objective, including--(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).''
    10. The Commission's implementation of section 60506 builds on a 
robust history of Commission regulatory action premised on 
nondiscrimination and universal service, which, in turn, furthers the 
goal of broadband internet access for all and addresses the digital 
divide.

Commission's Efforts To Further Consumer Access to Broadband Internet 
Service

    11. At the core of the Commission's commitment to broadband 
internet access for all is section 1 of the Communications Act of 1934, 
as amended, which states the agency's purpose ``to make available, so 
far as possible,'' a ``rapid, efficient, Nation-wide'' wire and radio 
communication service with adequate facilities ``to all people of the 
United States, without discrimination on the basis of race, color, 
religion, national origin, or sex.'' Nondiscrimination and universal 
service are cornerstone principles and drive agency policies to achieve 
the broadest possible consumer access to communications services. In 
the Telecommunications Act of 1996 (1996 Act), Congress expanded the 
traditional goal of universal service to include increased access to 
telecommunications and advanced services, such as broadband internet 
access service, for all consumers at just, reasonable, and affordable 
rates. The 1996 Act established principles for universal service that 
focus on increasing access for consumers living in rural and insular 
areas, and for low-income consumers. Section 706 of the 1996 Act 
requires the Commission to report annually on whether broadband ``is 
being deployed to all Americans in a reasonable and timely fashion.''
    12. In 2009, Congress directed the Commission to develop a National 
Broadband Plan to ensure every American has ``access to broadband 
capability.'' The Commission released the National Broadband Plan in 
March 2010, highlighting ways to ``[r]eform current universal service 
mechanisms to support deployment of broadband and voice in high-cost 
areas; and ensure that low-income Americans can afford broadband; and 
in addition, support efforts to boost adoption and utilization.''
    13. The Commission has long used its Universal Service funding 
programs to further consumer access to broadband and bridge the digital 
divide. These funding programs, which preceded the Infrastructure Act, 
have historically helped to deliver broadband services to low-income 
consumers and to unserved and underserved communities in rural and 
insular areas. Further, these programs provide support in various ways, 
including: offering to low-income consumers discounts on voice service 
and/or broadband internet access service; providing funding to eligible 
schools and libraries for affordable broadband services to help connect 
students and members of local communities; providing funding for health 
care providers to ensure that patients have access to broadband enabled 
healthcare services; and offering subsidies to providers to build out, 
deploy, and maintain networks that provide voice and broadband service 
in high-cost areas.
    14. These Commission actions help to ameliorate a digital divide 
that has underpinnings in the country's historical segregation and 
redlining practices in housing. Relying on historical research, data, 
and surveys, numerous commenters correlate inequities in broadband 
access to historically segregated housing patterns and discriminatory 
housing practices. The record in this proceeding reflects that the 
digital divide significantly tracks housing redlining that came into 
existence under the National Housing Act of 1934, when the Federal 
Housing

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Administration directed the Home Owners' Loan Corporation to create 
``residential security maps.'' These federally created maps outlined as 
``high-risk'' those areas highly populated by minorities. Banks used 
these maps to deny mortgage capital to minority residents living in 
those high-risk areas, leading to disinvestment in these communities. 
Against this historical and demographic backdrop, researchers have long 
found that metropolitan areas with a history of redlining ``generally 
remain more segregated and more economically disadvantaged, [and] . . . 
have lower median household income, lower home values, older housing 
stock, and rents which are lower in absolute terms (but often higher as 
a percentage of income).'' This history has carried forward to 
broadband access, as researchers have found that access to broadband in 
the home can decrease in tandem with historical residential risk 
classifications, and such differences in broadband access vary 
depending on income levels, race, and ethnicity.

Consumer Access to Broadband

    15. The Commission regularly reports on the number of Americans who 
lack access to broadband internet access service. While the Commission 
reported in 2021 that 14.5 million Americans lack access to broadband, 
an independent study suggested that the actual number was as high as 42 
million. Further, Microsoft's data usage, as of 2020, suggested that as 
many as 120.4 million people in the United States did not use the 
internet at broadband speeds of 25/3 Mbps.
    16. The uncomfortable reality is that too many households in the 
United States lack equal access to broadband. Lack of equal access to 
broadband is not limited to historically redlined urban communities, 
but also encompasses and acutely affects both rural and urban low-
income communities, other rural communities, and Tribal areas.

The Global COVID-19 Pandemic Heightened the Inequities in Broadband 
Internet Access

    17. The global COVID-19 pandemic compounded the problem of unequal 
access to broadband internet access service in the United States. The 
digital divide became more stark as shutdowns caused a heightened need 
for high-quality broadband internet access service to meet basic needs 
such as working from home, distance learning, accessing public benefits 
and services, telehealth, job-hunting, remote worship activities, 
remote family and social connections, and other daily activities. In 
2020, a Pew Research Center survey found that nearly half of adults 
surveyed stated that internet access was essential during the pandemic. 
And in that same survey, Pew found that at that time, ``[s]ome 43% of 
lower-income parents with children whose schools shut down say it is 
very or somewhat likely their children will have to do schoolwork on 
their cellphones; 40% report the same likelihood of their child having 
to use public Wi-Fi to finish schoolwork because there is not a 
reliable internet connection at home.'' Subsequently, in 2021, Pew 
surveys found that 57% of households making less than $30,000 had home 
broadband, compared to 93% of households making $100,000 or more, and 
additionally, white survey participants were more likely than black and 
Hispanic survey participants to report having home broadband access.
    18. Moreover, based on data contributed by civil society 
organizations, educational institutions, and private sector companies, 
among households with broadband access, lower-income communities were 
observed to have slower effective speeds. For example, broadband 
internet access service has been found to be 21% lower in Tribal areas, 
compared to neighboring non-Tribal areas, and download speeds were 
lower. Overall, research and data indicate that during the pandemic, 
entrenched disparities in broadband internet access service in low-
income, rural, and minority households adversely affected all aspects 
of daily life, including accessing education, seeking housing and 
employment online, accessing telehealth medical care, and applying for 
services. For example, as the pandemic caused the vast majority of K-12 
students across the country to receive online instruction, 14% of 
parents had to access public Wi-Fi because there was no reliable 
connection to the home. This figure was 4% in high-income households 
and 23% in lower income households.

Infrastructure Investment and Jobs Act of 2021

    19. On November 15, 2021, in the midst of the pandemic, Congress 
enacted the Infrastructure Act providing $65 billion for broadband 
programs for the purpose of expanding access and affordability to 
under-served and unserved areas and addressing the ``digital divide.'' 
During House debates on the Infrastructure Act, House Majority Whip 
James Clyburn (D-SC) testified about the harm caused by the digital 
divide and the need to address inequities in access to high-speed 
broadband internet service. Division F of the Infrastructure Act is 
entitled ``Broadband.'' In the legislation, Congress found: (1) Access 
to affordable, reliable, high-speed broadband is essential to full 
participation in modern life in the United States; (2) The persistent 
``digital divide'' in the United States is a barrier to the economic 
competitiveness of the United States and equitable distribution of 
essential public services, including health care and education; (3) The 
digital divide disproportionately affects communities of color, lower-
income areas, and rural areas, and the benefits of broadband should be 
broadly enjoyed by all; and (4) In many communities across the country, 
increased competition among broadband providers has the potential to 
offer consumers more affordable, high quality options for broadband 
service.
    20. The 2019 novel coronavirus pandemic has underscored the 
critical importance of affordable, high speed broadband for 
individuals, families, and communities to be able to work, learn, and 
connect remotely while supporting social distancing.

The Infrastructure Act's Funding Measures Promote Equal Access

    21. The Infrastructure Act's funding measures are intended to 
promote access to broadband internet access service and reduce the 
digital divide. Under Title I through Title V of Division F of the Act, 
Congress authorized funding for expansive broadband access, 
affordability, and digital literacy programs. These programs fall into 
seven major program areas: the Broadband Equity, Access, and Deployment 
Program ($42.45 billion), the Affordable Connectivity Program ($14.2 
billion) Digital Equity Planning, Capacity and Competitive Grants 
($2.75 billion), the Tribal Broadband Connectivity Program ($2 
billion), Rural Utilities Service at the Department of Agriculture ($2 
billion), the Middle Mile Grant Program ($1 billion), and Private 
Activity Bonds (approximately $600 million).

The Infrastructure Act Requires That the Commission Undertake Specific 
Measures To Support the Goal of Equal Access

    22. In addition to providing funding for broadband deployment in 
unserved and underserved communities, the Infrastructure Act sets out 
specified measures for the Commission in service of the goal that 
``every American ha[ve] access to reliable high-speed internet.'' Title 
I directs the Commission to create a broadband funding map, which is an 
``online mapping tool to provide a

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locations overview of the overall geographic footprint of each 
broadband infrastructure deployment project funding by the Federal 
Government.'' Through this map, and the National Broadband Map, the 
Commission and other governmental and non-governmental stakeholders can 
track broadband deployment projects to ensure that broadband is 
deployed in historically unserved and underserved areas. Title V, 
entitled ``Broadband Affordability,'' addresses affordability of 
broadband internet for low-income consumers. In addition to expanding 
funding to offset the cost of broadband internet for low-income 
households through the Affordable Connectivity Program (ACP), Title V 
promotes transparency by requiring the Commission to adopt rules for 
broadband providers to display easy-to-understand labels that allow 
consumers to comparison shop for broadband services. This promotes 
competition by providing consumers clear, concise, and accurate 
information about broadband internet prices and fees, performance, and 
network practices.
    23. Most relevant here, section 60506 of the Infrastructure Act 
sets out further measures to support the fundamental objective of 
ensuring equal access to broadband. The Statement of Policy provides 
that ``insofar as technically and economically feasible'' the 
Commission ``should take steps to ensure that all people of the United 
States benefit from equal access to broadband internet access 
service.'' In addition to mandating the adoption of rules to facilitate 
equal access by ``preventing digital discrimination of access'' on 
specified bases and identifying necessary steps to eliminate such 
discrimination, matters we discuss in great depth throughout this 
Report and Order, section 60506 requires the Commission and the 
Attorney General to ``ensure that Federal policies promote equal access 
to robust broadband internet access service by prohibiting deployment 
discrimination'' on specified bases. The Commission must also ``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 revise its ``public 
complaint process to accept complaints from consumers or other members 
of the public that relate to digital discrimination.''

Commission's Actions To Further Promote Equal Access

Commission Funding Programs
    24. The Commission's most recent efforts to get marginalized 
communities connected to high-quality broadband internet access service 
include administration of well-targeted subsidy programs. The 
Affordable Connectivity Program and its predecessor, the Emergency 
Broadband Benefit (EBB) Program, have been instrumental in helping low-
income households afford broadband internet. Under the program, 
eligible low-income households can receive a discount of $30 per month 
toward internet service and up to $75 per month for eligible households 
on qualifying Tribal lands. Eligible households can also receive a one-
time discount of up to $100 to purchase a laptop, desktop computer, or 
tablet from participating providers. As of August 2023, more than 20 
million households in the United States have enrolled in the program.
    25. During the pandemic, the Commission expedited adoption of the 
Emergency Connectivity Fund (ECF) and COVID-19 Telehealth Programs to 
provide 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.
Communications Equity and Diversity Council
    26. On June 29, 2021, the Commission chartered the Communications 
Equity and Diversity Council (CEDC), a federal advisory committee 
created for the purpose of presenting 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.'' In chartering the CEDC, the 
Commission renewed the charter of the Advisory Committee on Diversity 
and Digital Empowerment under a new name. Within the CEDC is the 
Digital Empowerment and Inclusion Working Group that was tasked with 
recommending ``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'' as required by 
section 60506(d).
    27. Since its formation, the CEDC and its working groups have taken 
significant steps towards satisfying its mission. On November 7, 2022, 
the CEDC submitted Recommendations and Best Practices to Prevent 
Digital Discrimination and Promote Digital Equity to the Commission. 
The CEDC found that ``COVID-19 exacerbated economic disparities for 
those who did not already have access to broadband services, especially 
in communities of color, where a lack of broadband access can reinforce 
systemic inequality. The CEDC further found that data supported the 
conclusion that minority status and income correlated with broadband 
access. To that end, the CEDC compiled findings from its three CEDC 
Working Groups and proposed recommendations for, among other things, 
model policies and best practices for states and localities that 
address discrimination in broadband access.
    28. Moreover, in furtherance of its mission, on March 23, 2023, the 
CEDC convened a range of community organizations, broadband internet 
access providers, federal agencies with emergency broadband funding, 
and state agencies to assess lessons learned concerning programs that 
provided broadband connectivity to communities during the pandemic. The 
CEDC released recommendations on this topic on June 15, 2023.
Task Force To Prevent Digital Discrimination
    29. Force to Prevent Digital Discrimination (Task Force). The Task 
Force is charged with coordinating the development of rules and 
policies to combat digital discrimination and promote equal access to 
broadband, overseeing the development of model state and local 
policies, and improving how the Commission seeks feedback from persons 
facing digital discrimination in their communities.
    30. The Task Force has engaged in significant outreach nationwide 
to understand the depth of problems in accessing broadband, 
particularly as experienced by persons in historically excluded, low-
income, rural, and marginalized communities. On January 25, 2023, the 
Task Force released a Broadband Access Experience Form for consumers to 
state their experience with accessing broadband internet. The Task 
Force explained that the experiences shared by consumers help inform 
the work of the Commission. Further, the Task Force has held numerous 
public listening sessions to gain additional information and 
understanding from affected communities, state, local and Tribal 
governments, public interest advocates, and providers about challenges, 
barriers, and experiences with accessing broadband. In addition,

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the Task Force conducted outreach efforts to educate the public on the 
Commission's rulemaking procedure, and to gather data, narratives, best 
practices, and recommendations. Summaries of these listening sessions 
and meetings have been entered into the record in this proceeding.

Notice of Inquiry and Notice of Proposed Rulemaking

    31. The Commission has taken iterative steps to form a robust 
record for the rules adopted in today's Report and Order. In March 
2022, the Commission released a Notice of Inquiry seeking comment on 
the rules that the Commission should adopt to implement section 60506. 
By the Notice of Inquiry, the Commission invited comment on the 
requirements encompassed in section 60506, in order to inform a 
forthcoming rulemaking to implement the requirements of the statute.
    32. In December 2022, the Commission released a Notice of Proposed 
Rulemaking (NPRM) seeking focused comment on potential rules to address 
digital discrimination of access pursuant to section 60506. The 
Commission sought comments on its proposals to: (1) adopt a definition 
of ``digital discrimination of access,'' (2) revise the Commission's 
informal consumer complaint process to accept complaints of digital 
discrimination of access, and (3) adopt model policies and best 
practices for states and localities combatting digital discrimination 
of access. The Commission also sought comment on other rules the 
Commission should adopt to facilitate equal access and combat digital 
discrimination of access, and on the legal authority for adopting 
rules. The Commission received more than 1,400 pages of record comments 
and ex partes from a wide range of stakeholders including public 
interest organizations, broadband internet access providers, state, 
local and Tribal governments, industry advocacy organizations, and 
research institutes. Informed by this record, we adopt rules in 
fulfillment of our mandate from Congress in section 60506 of the 
Infrastructure Act.

Discussion

    33. Based on our review of the record received in response to the 
Notice of Inquiry and NPRM, we adopt rules in this Report and Order to 
implement subsections (b), (d) and (e) of section 60506. First, we 
adopt a definition of ``digital discrimination of access'' and explain 
its component parts. Next, we adopt rules to prohibit digital 
discrimination of access. Third, we outline the scope of that 
prohibition, identifying the consumers, entities, and services covered 
by the prohibition. Fourth, we adopt rules for enforcing the 
prohibition and other requirements set forth in our rules, and we 
explain how we will assess when a policy or practice differentially 
affects consumer access to broadband internet access service. Finally, 
we adopt changes to our informal complaints process so the Commission 
can accept digital discrimination of access complaints, address other 
issues on the record, and adopt model policies and best practices for 
states and localities combating digital discrimination.

Definition of Statutory Terms

    34. Section 60506 is part of a comprehensive broadband access and 
affordability framework intended to expand broadband coverage in the 
United States, improve the quality of broadband services, and increase 
broadband adoption rates in low-income communities. As many commenters 
note, the bulk of the Infrastructure Act's broadband-related provisions 
are directed toward (1) improving broadband access in unserved and 
underserved communities by incentivizing investment in hard-to-build 
areas (principally through tens of billions of dollars in federally 
administered grants), and (2) improving broadband adoption rates in 
low-income communities through subsidies to qualifying consumers for 
high-speed broadband service and related equipment.
    35. The Infrastructure Act's historic investment incentives 
represent an acknowledgement by Congress that: (1) deploying, 
upgrading, and maintaining high-speed broadband networks is an 
expensive enterprise, even for the largest of broadband providers, (2) 
networks will only be built where they can be deployed at acceptable 
cost and then profitably operated, and (3) such legitimate, profit and 
loss considerations likely account for many of the gaps in access to 
high-speed broadband service across the United States. The investment 
incentives in the Infrastructure Act directly address the very real 
technical and economic constraints facing many broadband providers as 
they work to expand their networks to reach unserved and underserved 
communities across the country.
    36. But even while seeking to address these legitimate business 
constraints, Congress recognized that other factors might also have 
played a significant role in creating and maintaining the digital 
divide in the United States. Thus, alongside the ambitious programs in 
the Infrastructure Act for improving broadband access in unserved and 
underserved communities, Congress, in section 60506, specifically 
directed the Commission to facilitate equal access to broadband 
service, including addressing discrimination in the provision of access 
to broadband service.
    37. Section 60506(a) first declares ``the policy of the United 
States that, insofar as technically and economically feasible . . . 
subscribers should benefit from equal access to broadband internet 
access service within the service area of a provider of such service . 
. . [and that] the Commission should take steps to ensure that all 
people of the United States benefit from equal access to broadband 
internet access service.'' Section 60506(b) then directs the Commission 
to ``adopt final rules to facilitate equal access to broadband internet 
access service, taking into account the issues of technical and 
economic feasibility presented by that objective,'' and mandates that 
those rules 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'' such digital discrimination of access.
    38. Critically important to our understanding of the reach of 
section 60506 is its definition of ``equal access.'' Section 60506(a) 
declares in the Statement of Policy that the Commission should take 
steps to ensure ``equal access'' to broadband internet access service 
across our Nation, and section 60506(b) directs the Commission to adopt 
rules to ``facilitate equal access'' to broadband internet access 
service. The ``equal access'' that we are to ensure and facilitate is 
defined in subsection (a)(2) 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.'' The statute thus focuses the 
Commission's energies on the objective of equal opportunity, a concept 
and goal that is well known in American life. And in service of this 
equal opportunity goal, the Commission is directed, and thereby 
authorized, to adopt rules to prevent discrimination on the listed 
bases and to identify ways to eliminate its occurrence and effects.

Digital Discrimination of Access Defined

    39. By enacting section 60506, Congress vested the Commission with 
authority to adopt and enforce rules to address the problem of digital 
discrimination of access. To achieve

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that purpose, the Notice advanced proposals for defining ``digital 
discrimination of access'' and the legal standard for determining a 
violation of the rules. We adopt the following definition of ``digital 
discrimination of access,'' which is essentially identical to our 
proposal in the Notice: Policies or practices, not justified by genuine 
issues of technical or economic feasibility, that (1) differentially 
impact consumers' access to broadband internet access service based on 
their income level, race, ethnicity, color, religion, or national 
origin or (2) are intended to have such differential impact.
    40. In so defining ``digital discrimination of access,'' we find 
that to achieve the statute's equal access purposes, the legal standard 
must address not only business conduct motivated by discriminatory 
intent, but also business conduct having discriminatory effects.
    41. Virtually all commenters agree that digital discrimination of 
access encompasses business conduct motivated by discriminatory intent. 
Certainly treating a person or a group of persons ``less favorably than 
others because of a protected trait'' is ``the most easily understood 
type of discrimination.'' Under our adopted rules, business conduct 
motivated by discrimination on one of the six listed bases (income 
level, race, color, ethnicity, religion, and national origin) would 
generally be prohibited.
    42. The disagreement among commenters centers on whether policies 
and practices having discriminatory effects should be prohibited under 
our definition of digital discrimination of access. Most industry 
commenters argue that the definition must be limited to disparate 
treatment, i.e., intentional discrimination, relying largely on case 
law interpreting the Fair Housing Act (FHA) and asserting that a 
Commission rule permitting claims based on disparate impact, i.e., 
discriminatory effect, would conflict with other provisions of the 
Infrastructure Act, and could disincentivize investment in broadband 
networks. On the other hand, most public interest and government 
commenters, relying on the same case law, argue that the rule must 
encompass disparate impact claims because most discrimination in 
broadband access stems from business practices having discriminatory 
effect, and any rule that excludes a disparate impact liability 
standard would render section 60506 largely meaningless. In adopting a 
definition of digital discrimination of access that encompasses both 
disparate treatment and disparate impact, we are guided primarily by 
the text of the statute, including its expressly stated goal of 
ensuring ``equal access'' to broadband internet access service.

Section 60506 Supports the Commission's Adoption of the Legal Standards 
Stated in the Defined Term

    43. Statutory interpretation focuses on ``the language itself, the 
specific context in which that language is used, and the broader 
context of the statute as a whole.'' The text and context of section 
60506 of the Infrastructure Act fully support our adopted definition of 
digital discrimination of access and its application, as does the 
overall framework of the Infrastructure Act and section 60506.

Disparate Treatment

    44. Section 60506 plainly addresses intentional discrimination, 
i.e., an intentional act that treats a person, or group of persons, 
``less favorably than others because of a protected trait.'' Virtually 
all commenters agree on this point, and we find no basis for 
disagreeing with this consensus view. Our definition of ``digital 
discrimination of access'' thus includes any act by a covered entity 
that is intended to differentially impact access to broadband internet 
access service on one of the listed bases and is not justified by 
genuine issues of technical or economic feasibility. Based on the 
record before us, we do not expect to encounter many instances of 
intentional discrimination with respect to deployment and network 
upgrades, as there is little or no evidence in the legislative history 
of section 60506 or the record of this proceeding indicating that 
intentional discrimination by industry participants based on the listed 
characteristics substantially contributes to disparities in access to 
broadband internet service across the Nation. Moreover, in the cases in 
which we do encounter intentional discrimination, we believe the entity 
that engaged in the discriminatory conduct will be hard pressed to 
justify such conduct on technical or economic feasibility grounds. 
Therefore, while we will allow such justifications to be raised and 
will consider them on a case-by-case basis, we expect that in most 
cases, a determination that a covered entity engaged in intentional 
discrimination will lead to a finding of liability under our rules.

Disparate Impact

    45. In determining whether section 60506 authorizes us to include 
disparate impact in our definition of digital discrimination of access, 
we look to the guidance provided in the Supreme Court's decision in 
Texas Department of Housing and Comm'ty Affairs v. Inclusive 
Communities Project, 576 U.S. 519, 533 (2015) (Inclusive Communities). 
There, the Court set out a framework for determining when an 
antidiscrimination statute ``must be construed to encompass disparate 
impact claims.'' Under that framework, a disparate impact legal 
standard is authorized where the statutory text is ``results based'' 
and such a standard is ``consistent with statutory purpose.'' And, 
where evidence of a statistical disparity is shown to support a 
complaint of disparate impact, liability is properly limited where (1) 
the challenged policy or practice is shown to cause the disparity 
complained about, and (2) business owners are permitted to explain the 
valid interests served by the challenged policy or practice. We find 
that 60506 authorizes a disparate impact liability standard and that 
our implementing rules, outlined below, fully comport with the limiting 
criteria set out in Inclusive Communities.

Statutory Text and Context

    46. The language of section 60506 falls within Division F 
(Broadband Access) of the Infrastructure Act, where Congress addresses 
the problem of the ``digital divide'' in our country and the urgency of 
corrective action because ``[a]ccess to affordable, reliable, high-
speed broadband is essential to full participation in modern life in 
the United States.'' The term ``equal access'' is defined in section 
60506 as ``the equal opportunity to subscribe to an offered service'' 
of comparable quality on comparable terms and conditions. The term 
``equal access'' lies at the center of section 60506's Statement of 
Policy in subsection (a). At subsection (b) Congress directs the 
Commission to adopt final rules to ``facilitate equal access'' which 
includes ``preventing digital discrimination'' and ``identifying 
necessary steps . . . to eliminate [such] discrimination.'' As we 
explain below, the facial text, context and purposes of the statute 
establish Congress's intent that our implementing rules address conduct 
having discriminatory effects as well as conduct motivated by 
discriminatory intent.
    47. The operative text mandates the adoption of rules to 
``facilitate equal access to broadband'' which includes ``preventing 
digital discrimination of access based on'' specified characteristics, 
and ``identifying necessary steps . . . to eliminate [such] 
discrimination.'' The term ``equal access'' is defined in section 
60506(a) as ``the equal opportunity to subscribe to an offered 
service'' of comparable

[[Page 4134]]

quality on comparable terms and conditions and lies at the center of 
section 60506's Statement of Policy. We reject the argument that 
section 60506(a)(2) ``is irrelevant to the meaning of 
`discrimination''' even if it focuses on consequence. As explained, we 
interpret ``of access'' in subsection (b)(1) to incorporate the 
definition of ``equal access'' in (a)(2). At subsection (b), Congress 
directs the Commission to adopt final rules to ``facilitate equal 
access'' to broadband internet access service. Like Title VII of the 
Civil Rights Act of 1964 and the Age Discrimination in Employment Act, 
section 60506 defines ``access'' in terms of opportunity. Because the 
statute defines ``access'' as the ``opportunity to subscribe,'' this 
operative text focuses on the impact of a policy or practice on the 
consumer's chance or right to obtain service rather than intent.
    48. Courts commonly look to the ``ordinary meaning'' of a statute's 
words to interpret their meaning when the statute itself does not 
provide a definition. Looking at other operative text of section 60506, 
given its ordinary meaning, we find that each term targets the 
``consequences of actions.'' For undefined statutory terms, courts can 
look to the ``dictionary for clarification of the plain meaning of 
words selected by Congress.'' For instance, subsection (a)(1) of the 
statute focuses on the ``opportunity'' to subscribe \1\ and subsection 
(a)(3) states that consumers should ``benefit'' from equal access to 
broadband. The plain meaning of ``opportunity'' is ``a good chance for 
advancement or progress,'' and ``benefit'' means ``to receive help or 
an advantage.'' Neither term depends on the mindset of the actor, but 
rather the effect of the action. Section 60506(b), moreover, directs 
the Commission to ``facilitate'' equal access by ``preventing'' digital 
discrimination of access, and identifying necessary steps to 
``eliminate'' it. The plain meaning of ``facilitate'' is ``to make 
easier or help bring about.'' The meaning of ``prevent'' as referenced 
in subsection (b)(1) is ``keep[ing] (something) from happening or 
arising,'' and ``eliminate'' as referenced in subsection(b)(2) means to 
``put an end to or get rid of.'' Commenters urge us to adopt a 
disparate impact legal standard due to the documented disparities in 
broadband access nationwide. Again, these definitions, taken from the 
Merriam-Webster's (online) Dictionary, clearly suggest an effects-based 
orientation--whether looking at each word independently or in context 
as written in the statute--rather than a singular focus on the mindset 
of the actor. Equal access can be denied by policies and practices 
having discriminatory effects even where no discriminatory motive is 
present, and it is our considered view that most of the gaps in access 
to broadband internet service in our country, to the extent that they 
are not a product of legitimate business constraints that Congress 
sought to address in other provisions of the Infrastructure Act, stem 
from policies and practices that are neutral on their face, rather than 
from intentionally discriminatory conduct on the part of covered 
entities and other industry participants. Further, the use of the words 
``based on'' in section 60506(b)(1) does not limit its reach to 
instances of intentional discrimination under controlling precedent. 
Some commenters argue that the statute's use of the term ``based on'' 
limits the statute to an intent-only legal standard. This argument by 
commenters has already been expressly rejected by the Supreme Court in 
Griggs v. Duke Power Co., 401 U.S. 424 (1971) (Griggs) and its progeny. 
Looking at the other nondiscrimination statutes that contain similar 
``based on'' language--section 703(a)(2) of Title VII, section 4(a)(2) 
of the ADEA, and section 804(a) of the FHA--each of these statutes were 
found by the Court to authorize disparate impact claims because of the 
results-based statutory language. Just as with these antidiscrimination 
statutes, section 60506's ``based on'' text does not foreclose 
utilizing a disparate impact legal standard. The disparate impact 
standard is authorized by section 60506, as it is drawn from the 
``equal access'' and other ``results-based'' statutory language and 
clear purposes of the statute.
---------------------------------------------------------------------------

    \1\ 47 U.S.C. 1754(a)(1).
---------------------------------------------------------------------------

    49. In reaching this conclusion, we are mindful of the history of 
disparate impact analysis as it applies to federal anti-discrimination 
statutes. It was first addressed in Griggs. where the Supreme Court 
interpreted section 703(a)(2) of Title VII of the Civil Rights Act to 
authorize disparate impact liability. Section 703(a)(2) of Title VII 
made it ``an unlawful practice for an employer'' to ``limit, segregate, 
or classify . . . employees or applicants for employment in any way 
which would deprive any individual of employment opportunities or 
otherwise adversely affect his status as an employee because of such 
individual's race, color, religion, sex or national origin.'' There, 
the Court interpreted the statutory text to prohibit not only ``overt 
discrimination'' but also ``practices that are fair in form, but 
discriminatory in operation.'' Further, the Court stated that ``[u]nder 
[Title VII], practices, procedures, or tests neutral on their face, and 
even neutral in terms of intent, cannot be maintained if they operate 
to `freeze' the status quo of prior discriminatory employment 
practices.'' The Court reasoned that from this language ``Congress 
directed the thrust of [Sec. 703(a)(2)] to the consequences of 
employment practices, not simply the motivation.'' Notably, the Court 
stated that the statute's goal of achieving ``equality of employment 
opportunities and remov[ing] barriers that have operated in the past'' 
to favor some individuals over others afforded protected status must be 
interpreted to allow disparate impact claims. Section 4(a)(2) of the 
Age Discrimination in Employment Act (ADEA) contains similar language 
as that of Title VII, and a plurality of the Court in Smith v. City of 
Jackson, 544 US 228 (2005) (Smith), ruled that the statutory text 
authorized disparate impact liability just as it did in Griggs.
    50. Similar reasoning was employed in examining section 804(a) of 
the FHA by the Court in Inclusive Communities, even though the 
provision used different results-based language than did Title VII and 
the ADEA. The FHA makes it unlawful to ``refuse to sell or rent . . . 
or otherwise make unavailable or deny, a dwelling to any person because 
of'' a protected status. The Court in Inclusive Communities observed 
``the logic of Griggs and Smith provides strong support for the 
conclusion that the FHA encompasses disparate-impact claims'' even 
though the results-oriented language was different. The Court observed 
that ``[i]t is true that Congress did not reiterate Title VII's exact 
language in the FHA, but that is because to do so would have made the 
relevant sentence awkward and unclear.'' So, instead, ``Congress thus 
chose words that serve the same purpose and bear the same basic meaning 
but are consistent with the structure and objectives of the FHA.'' 
Likewise, in the context of section 60506, Congress did not repeat the 
results-based language that appears in Title VII, the ADEA, the FHA or 
the many other federal anti-discrimination statutes that have been 
determined to prohibit disparate impacts on specified bases. Title VI 
authorizes promulgation of disparate impact regulations. Instead, 
Congress chose words appropriate to the statute's purpose of promoting 
equal access to broadband internet service; the statute appropriately 
references ``equal access,'' ``equal opportunity'' and other 
terminology that goes to results or

[[Page 4135]]

consequences of actions (or counteracting those results or 
consequences), and not to the mindset of actors. For these reasons, we 
disagree with commenters who argue that section 60506 does not have 
results-oriented language or other textual markers that authorize 
disparate impact liability.

Statutory Purpose

    51. Our reading of the statutory text to encompass disparate impact 
aligns with the overall scheme of the Infrastructure Act, and with the 
purpose of section 60506 specifically. As described above, promoting 
broadband internet access has been a longstanding policy objective for 
the Commission. The 1996 Act expanded the goal of universal service to 
include advanced services such as broadband internet service, and the 
Commission used its universal funding programs to address the 
persistent digital divide. Then, in 2020, the global COVID-19 pandemic 
necessitated social distancing that made the ongoing digital divide 
even more evident and troublesome. Some commenters in this proceeding 
argue, directly or indirectly, that ``digital discrimination'' does not 
exist. But those arguments are belied by Congress's findings in the 
Infrastructure Act and the record compiled in this proceeding 
correlating the digital divide with historical discrimination. In all 
events, Congress has directed the Commission to take swift action to 
prevent digital discrimination of access. Therefore, we do not find it 
necessary to evaluate claims by commenters that digital discrimination 
of access does not exist. Such arguments would more appropriately have 
been made to Congress when it was considering this legislation. We have 
neither the authority, nor the inclination, to question the factual 
bases for Congress's directives to the Commission. Indeed, section 
60506 aligns with the Commission's longstanding obligation to promote 
nondiscrimination in the telecommunications sector. Section 202(a) of 
the Communications Act is a nondiscrimination provision that makes it 
unlawful for common carriers to ``discriminat[e] in charges, practices, 
classifications, regulations, facilities, or services for or in 
connection with like communications service . . . or to . . . . 
advantage . . . any particular person, class of persons, or locality, 
or to subject any particular person, class of persons, or locality to 
any undue or unreasonable prejudice or disadvantage.'' It requires no 
showing of discriminatory intent to establish a violation. Under 
section 202, where ``like communications services'' are provided by the 
same provider but on different terms or conditions, the provider must 
justify any difference as reasonable.
    52. Gaps in access to high-quality broadband across the country led 
Congress to enact the broadband-related provisions of the 
Infrastructure Act, which creates historic investment incentives and 
affordability subsidies to address some of the causes of the digital 
divide. The Infrastructure Act also clearly mandates certain 
prophylactic measures to address discriminatory conduct that is not 
addressed elsewhere in the legislation. For the past half century, our 
country's civil rights jurisprudence has recognized that equal 
opportunity to achieve economic and social benefits can be denied 
intentionally because of the personal characteristics or status of the 
person seeking the opportunity or benefit, or it can be denied 
unintentionally because of facially neutral policies or practices that 
disproportionately exclude persons possessing such characteristics or 
status, and both types of denial are unlawful. Disparate impact 
analysis has maintained its foundational standing in the courts, most 
recently in Inclusive Communities, as a means for addressing harm 
caused by policies or practices that have discriminatory effects and 
lack adequate business justification. We find that by defining the 
goals of section 60506 in terms of ``equal access'' and ``equal 
opportunity,'' especially in light of the 52-year history of disparate 
impact analysis in civil rights law, Congress expressed its intention 
that the Commission's implementing regulations address business conduct 
having the effect of denying designated groups of consumers the equal 
opportunity to subscribe to an offered broadband service, regardless of 
the motivation for such actions.
    53. As further support for the Congressional purpose that drives 
our actions today, the record in this proceeding contains substantial 
evidence of gaps in access among persons in some low-income, rural, 
Tribal, and minority communities. As noted above, there is little or no 
evidence in the legislative history of the Infrastructure Act or the 
record of this proceeding that impediments to broadband internet access 
service are the result of intentional discrimination based on the 
criteria set forth in the statute. Rather, we must conclude that such 
impediments are more likely driven by neutral policies or practices 
(i.e., business decisions) that have discriminatory effects.

Section 60506 Properly Limits Disparate Impact Liability

    54. Even where a statute contains ``results-based'' text that 
authorizes disparate impact claims, the liability standard must require 
a showing that a challenged policy or practice is causing the disparity 
complained about, and ``avoid displacement of legitimate practices.'' 
Both of these factors are met by the rules we adopt today.
    55. First, we will require that any determination of differential 
impact that relies on observed disparity must point to a specific 
policy or practice that is causing the disparity. A ``robust causality 
requirement'' ensures that any statistical imbalance does not alone 
establish liability and thus protects covered entities ``from being 
held liable for . . . disparities they did not create.'' We therefore 
require that any determination of liability under our rules that is 
founded on statistical disparity must include a determination that the 
disparity is caused by a specific policy or practice of the covered 
entity under investigation.
    56. Next, the rules will give covered entities an opportunity to 
present justifications for discriminatory policies and practices. 
Section 60506 sets out such limitation by requiring that our rules 
facilitate equal access while taking into account ``issues of technical 
and economic feasibility.'' Where the Commission believes there is 
credible evidence that a covered entity's policy or practice 
differentially impacts access to broadband internet access service on 
the basis of income level, race, ethnicity, color, religion, or 
national origin, the covered entity will have the opportunity to prove 
that the policy or practice is nevertheless ``justified by genuine 
issues of technical or economic feasibility.'' We anticipate that such 
justification will include proof that there is not a reasonably 
available and achievable alternative policy or practice that would 
serve the entity's legitimate business objectives with less 
discriminatory effect. In this Report and Order, we explain the meaning 
of these terms, and how they will be applied on a case-by-case basis in 
the context of our self-initiated investigations of digital 
discrimination of access complaints.

Adopting a Rule That Encompasses Disparate Impact Claims Does Not 
Conflict With the Infrastructure Act's Funding Programs and Will Not 
Chill Broadband Investment

    57. Contrary to some commenters' claims, including disparate impact 
in our definition of digital discrimination of access does not conflict 
with the

[[Page 4136]]

broadband funding programs set out in the Infrastructure Act and will 
not otherwise chill investment in broadband networks. The deployment 
and digital equity funds provided for in the Infrastructure Act 
prioritize unserved and underserved areas by addressing technical and 
economic issues that have hindered investment in ``hard-to-build'' 
areas. By contrast, section 60506 and the Commission's implementing 
rules are centered on conduct that does not stem from such issues. Our 
definition of ``digital discrimination of access'' highlights this 
contrast by specifically exempting policies and practices that are 
justified by ``genuine issues of technical and economic feasibility.'' 
Thus, the discrimination addressed in section 60506 and our 
implementing rules is not addressed in other provisions of the statute, 
and vice versa. There is no conflict.
    58. Nor do we believe that including disparate impact in our 
definition of digital discrimination of access will chill investments 
in broadband networks. Congress has provided historic funding 
incentives aimed to spur broadband investments in unserved and 
underserved communities throughout the United States. Those incentives, 
once again, address the very real technical and economic challenges 
that have hindered deployment, upgrades, and maintenance of networks in 
those communities. We are not persuaded that adoption of a disparate 
impact standard will disincentivize economic investments in networks 
out of fear that doing so might somehow require uneconomic investments. 
Again, we emphasize that under the rules we adopt today, there can be 
no liability determination for disparate impact unless (1) there is a 
differential in access to broadband service; (2) the differential is 
caused by a specific policy or practice of the covered entity; and (3) 
the covered entity fails to prove that the policy or practice is 
justified on genuine technical or economic grounds. When providing 
broadband access to a particular area is impeded by genuine issues of 
technical or economic feasibility, the covered entity should be able to 
explain those issues and offer substantial evidence to support them. 
While our rules will require greater diligence by covered entities in 
determining and documenting the reasons for access gaps in their 
service areas, we do not think that result is overly burdensome in 
furtherance of the statutory goal of equal access, nor do we think it 
will disincentivize investment in broadband networks.

Other Considerations

    59. Having reached the central determinations for adopting a 
definition of digital discrimination of access and the applicable legal 
standards, we respond to other considerations commenters raise. 
Commenters raise additional arguments regarding interpretation of 
``equal access,'' legislative history, and the role that a covered 
entity's profitability and access to consumer data should play in our 
definition of digital discrimination of access analysis. We address 
each of those considerations in turn.
    60. Interpretation of ``equal access.'' Commenters urge us to 
interpret ``equal access'' to require a showing of intent. Given that 
``equal access'' is defined by statute, is inherently ``results 
based,'' and is coupled with other operative terms that are ``results 
based,'' we must reject each of these proposals. Some commenters argue 
that the intent legal standard should apply specifically to digital 
discrimination of access claims that pertain to the characteristics of 
particular technologies. We find no basis for adopting different legal 
standards for specific technologies because the rules we adopt today 
are sufficiently flexible to accommodate all technologies through which 
broadband internet access service is provided. Certainly, requiring any 
showing of intent would conflict with our reasoned interpretation of 
the statutory text and purpose. Commenters disagree as to whether 
language in recent telecommunications laws explicitly referencing 
intent is relevant. Given the disagreement on the record and that 
section 60506's statutory text authorizes a legal standard showing for 
discriminatory effect, we are not persuaded that we should adopt an 
intent-only legal standard. We likewise decline the City of Long 
Beach's suggestion that we ``should seek to achieve and facilitate 
equitable access[ ] rather than equal access,'' because that 
interpretation would directly conflict with the Statement of Policy. We 
also reject TechFreedom's proposal to give a fluid meaning to ``equal 
access'' that would vary from the definition in the statute. In 
particular, TechFreedom argues that the word ``access'' in section 
60506(b)(1) ``has a purely technical meaning: it is the technological 
`capability to transmit [. . .] and receive data' enjoyed by the 
user.'' We disagree. Because ``preventing digital discrimination of 
access'' is included within the broader mandate of rules to 
``facilitate equal access,'' the word ``access'' in the phrase 
``preventing digital discrimination of access'' incorporates the 
statutory definition of ``equal access.'' Congress defined ``equal 
access'' as ``the equal opportunity to subscribe'' to broadband. Thus, 
``digital discrimination of access'' is best understood as referring to 
discrimination in the ``opportunity to subscribe.'' For those same 
reasons, we also disagree with commenters who argue that section 
60506's operative text does not contain results-oriented language. As 
the term ``equal access'' is expressly defined in section 60506(a)(2) 
and ``access'' as used in section 60506 (b)(1) is a derivative of that 
definition, we find no basis or authority to deviate from the statutory 
text. Some commenters request that we give ``digital discrimination'' 
and ``digital discrimination of access'' the same meaning, or define 
only the term ``digital discrimination'' We decline to do so. We define 
and give meaning to ``digital discrimination of access'' because 
Congress charged the Commission with adopting rules that ``prevent[ ] 
digital discrimination of access'' in subsection (b), and defining that 
term in our rules better aligns with our mandate to ``facilitate equal 
access'' in this proceeding.
    61. We also disagree with Lincoln Network's argument that the 
statute's reference to an ``opportunity'' to subscribe requires a 
disparate treatment standard. This interpretation ignores that a 
consumer's ``opportunity'' to subscribe could be impeded by policies 
and practices having discriminatory effects even where discriminatory 
intent is absent. Consequently, limiting our definition to conduct 
motivated by discriminatory intent would not fully accomplish our 
mandate from Congress to facilitate equal access to broadband service 
and prevent discrimination on the listed bases.
    62. Interpretation of legal standards. We disagree with commenters 
who argue that the terms of section 60506 do not support including 
disparate impact in our definition of digital discrimination of access. 
AT&T argues that the phrase ``to facilitate equal access'' speaks only 
to the Commission's broader obligations to incentivize broadband 
deployment and does not support using disparate impact analysis to 
reach that objective. CTIA argues that Congress would not have used the 
term ``facilitate'' ``if it intended for the Commission to create a 
burdensome liability and enforcement regime.'' As explained herein, the 
statutory text, context, and purposes of the Infrastructure Act and 
section 60506 make clear that Congress intended that our rules 
addressing digital discrimination of access reach not only

[[Page 4137]]

discriminatory treatment, but also policies and practices having 
discriminatory effect. By commenters' own admission, there is little to 
no evidence of intentional digital discrimination of access. The 
Commission is obligated to adhere to Congress's mandate and adopt rules 
that address the problems that do exist rather than those that do not.
    63. Legislative History. Commenters argue that the sparse 
legislative history of section 60506 and/or the absence of a specific 
mention of disparate impact in the legislative history forecloses 
inclusion of a disparate impact liability standard. We disagree. As 
explained by this Report and Order, we conclude that the text, context, 
and purpose of the statute clearly authorize that liability standard. 
USTelecom argues, however, that Title VII of the Civil Rights Act, the 
FHA, and the ADEA were all grounded in a congressional record of 
``specific, historic discrimination that the statute was designed to 
remedy and prevent'' and that history of discrimination in the 
legislative history supported a disparate impact liability standard. 
While the legislative history of section 60506 is not as robust as that 
of Title VII, the ADEA, and the FHA, the Supreme Court has made clear 
that even ``silence in the legislative history . . . cannot defeat the 
better reading of the text and statutory context. . . . If the text is 
clear, it needs no repetition in the legislative history; and if the 
text is ambiguous, silence in the legislative history cannot lend any 
clarity.'' As to section 60506, the text, statutory context, and 
purpose is clear. The statute's text and purpose, to promote equal 
access to broadband internet, fully authorize including a disparate 
impact liability standard for enforcing our prohibition against digital 
discrimination of access. Some commenters argue that our reading of 
section 60506 is foreclosed because disparate-impact liability would 
enable the Commission to regulate the rates of broadband internet 
access service providers, ``impose requirements to build-out service, 
and more.'' But the ``new regime of unfunded mandates and price 
regulation'' that these commenters posit has no foundation in the rules 
we adopt herein. We also note our agreement with the Lawyers' Committee 
that the major questions doctrine has no application to our 
implementation of section 60506.
    64. Profitability Considerations. We additionally decline the 
suggestion in the policy paper submitted by the Americans For Tax 
Reform and Digital Liberty that we define digital discrimination of 
access ``[as] when differences in the deployment of and/or the quality, 
terms, and conditions of access to broadband services are not explained 
by differences in the profitability of serving the different areas, but 
instead reflect non-economic decisions to underserve protected classes 
in a manner that causes adverse or negative consequences.'' This 
definition would limit the Commission to considering ``profitability'' 
rather than ``issues of technical and economic feasibility,'' and would 
appear to place primary weight on economic rather than technical 
considerations. Our adopted rule properly includes both technical and 
economic considerations, as explained in this Report and Order.
    65. Data Access. The LGBT Technology Partnership proposes that we 
adopt a definition of digital discrimination of access that encompasses 
data access concerns and issues pertaining to personal data that is 
processed by an algorithm. We decline to include that within the scope 
of our covered services. By LGBT Technology Partnership's own 
admission, section 60506 is ``not directly related to how emerging 
technologies like algorithms facilitate greater precision of structural 
discrimination.'' However, to the extent that such privacy- and data-
related practices can be shown to differentially affect consumer access 
to broadband service on one or more of the listed bases, those 
practices might fall within the scope of our definition.

Technical and Economic Feasibility

    66. Section 60506 twice references technical and economic 
feasibility. First, as noted above, Congress declared in section 
60506(a)(1) the ``policy of the United States that, insofar as 
technically and economically feasible . . . subscribers should benefit 
from equal access to broadband internet access service within the 
service area of a provider of such service . . . .'' And in section 
60506(b), Congress directed the Commission to ``adopt final rules to 
facilitate equal access to broadband internet access service, taking 
into account the issues of technical and economic feasibility presented 
by that objective . . . .''
    67. These references are clear indicators that full achievement of 
the ``equal access'' and ``equal opportunity'' goals of the statute 
might, in some instances, be limited by genuine technical or economic 
constraints. If the technology does not yet exist to provide a 
particular broadband internet access service to a particular geographic 
area, or the technology to provide the service does exist but utilizing 
it to reach the area in question would be prohibitively expensive, the 
failure to provide that specific service to that specific area would be 
explained by genuine technical or economic constraints. In order to 
account for these types of circumstances, in our December 2022 NPRM, we 
proposed to define the term ``digital discrimination of access'' in 
section 60506(b)(1) such that any Commission determination that 
prohibited discrimination has occurred must be preceded by analysis of 
whether the policy or practice in question was ``justified by genuine 
issues of technical or economic feasibility.'' Having adopted a 
definition of ``digital discrimination of access'' that includes a 
specific carve out for conduct found to be so justified, we now adopt 
definitions for the terms ``technically feasible'' and ``economically 
feasible'' in the context of section 60506 and we explain how the 
Commission will evaluate ``genuine issues of technical or economic 
feasibility'' under our rules. We agree with commenters that our 
application of these concepts is critical to the successful 
implementation of section 60506.

Technical and Economic Feasibility Are Fundamental Components of 
Digital Discrimination of Access

    68. We first find that including the carve out for technical and 
economic feasibility in our definition of ``digital discrimination of 
access'' is the soundest, most straightforward, and most effective 
means of satisfying our statutory responsibility to facilitate equal 
access while ``taking into account the issues of technical and economic 
feasibility presented by that objective.'' We disagree with those 
commenters that suggest we omit the carve out language or argue that it 
should only be considered as an affirmative defense if the Commission 
were to create a structured complaint process to receive allegations of 
digital discrimination of access. We are also not persuaded by the 
argument that feasibility should not be included in our definition 
because it is not included in subsections (b)(1), (d), or (e). The 
proffered construction misreads subsection (b), which places 
feasibility concerns squarely within each of the tasks assigned to the 
Commission under that subsection. We similarly decline USTelecom and 
WISPA's request that we omit the word ``genuine'' from the carve out. 
The record reflects widespread concern that naked assertions of 
technical or economic infeasibility could become a loophole to 
complying with our digital discrimination of access rules such that 
they would not actually ``facilitate equal access to broadband'' as 
Congress intended. We include the word

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``genuine'' in our definition of digital discrimination of access to 
convey that bare assertions and justifications created after the fact 
will not suffice to prove that a business practice falls within the 
carve out and is therefore exempt from liability.

Consideration of Technical and Economic Feasibility Supports a 
Disparate Impact Approach

    69. We further find that Congress's directive in section 60506(b) 
that we take into account issues of technical and economic feasibility 
supports including a disparate impact approach in our definition of 
``digital discrimination of access'' and fits neatly into the framework 
of disparate impact analysis. Under traditional disparate impact 
analysis, once a policy or practice is shown to have a meaningful 
adverse impact on a protected group, the covered entity may 
affirmatively produce evidence that the challenged policy or practice 
is justified by a substantial, legitimate business interest. If the 
covered entity does so, it may still be liable if there is a less 
discriminatory alternative to the challenged policy or practice. 
Congress's directive that the Commission take into account issues of 
technical and economic feasibility represents a formulation of this 
traditional test as tailored to the specific context of section 60506 
and the issues it aims to address. As further discussed above in the 
disparate impact paragraphs and below in the enforcement-related 
paragraphs, a covered entity in a Commission investigation under 
section 60506 will likewise have the opportunity to show that the 
policy or practice under scrutiny is justified by genuine technical or 
economic constraints. And as part of the Commission's consideration of 
these issues, a covered entity will be allowed to present for the 
Commission's review any legitimate business impediment to the use of 
less discriminatory alternatives. We find that the feasibility 
provision is largely superfluous to intentional discrimination of 
access, and that when Congress directed the Commission to be mindful of 
technical and economic considerations, its objective was to ensure that 
covered entities in any investigation the Commission conducts under our 
rules to prevent digital discrimination of access would have an 
opportunity to explain and justify their conduct.
    70. We disagree with commenters asserting that the technical and 
economic feasibility language in section 60506 does not support 
inclusion of disparate impact in our definition of digital 
discrimination of access. These commenters fail to explain why 
consideration of technical and economic feasibility makes sense only in 
the context of disparate treatment claims or why it makes more sense in 
the context of disparate treatment claims than in the context of 
disparate impact claims.
    71. We are also not persuaded by AT&T's argument that Congress's 
contemplation of technical and economic justifications for challenged 
practices does not support an inference that Congress intended to 
capture cases of disparate impact. AT&T argues that section 60506's 
feasibility provision has ``independent significance even if Congress 
intended the Commission to address only intentional discrimination'' 
because ``income levels are routinely used [ ] as a basis for business 
decisions in a wide variety of [] industries.'' But as the Lawyers' 
Committee for Civil Rights Under Law notes, ``there is still no 
scenario in which intentional discrimination on the basis of income 
level--or any other protected characteristic--could ever be justified 
by technical feasibility.'' We find that AT&T's reading ``is thus at 
odds with one of the most basic interpretive canons, that `[a] statute 
should be construed so that effect is given to all its provisions, so 
that no part will be inoperative or superfluous, void or insignificant 
. . . .' '' And, as we have stated elsewhere, there is little or no 
evidence in the legislative history or in the record of this proceeding 
that intentional discrimination on any basis by industry participants 
contributes meaningfully to the digital divide in this country. AT&T 
also argues that the feasibility provision does not support the 
existence of disparate-impact liability under section 60506 because it 
``applies to the broader mandate to the Commission to `facilitate equal 
access' and is not restricted only to the narrower included 
`discrimination' provision.'' In response, Lawyers' Committee for Civil 
Rights Under Law argues that, ``the feasibility qualifier must also 
apply to [(b)(1)] providing specific instructions on how the Commission 
needs to execute that preamble. AT&T does not explain how the 
`preventing discrimination' provision--if interpreted to cover only 
intentional discrimination--would `tak[e] into account technical and 
economic feasibility.' ''

Definitions of ``Technically Feasible'' and ``Economically Feasible''

    72. As discussed in more detail below, we adopt clear definitions 
of the terms ``technically feasible'' and ``economically feasible'' 
based on the record in this proceeding and Commission precedent; and, 
we explain how the Commission will assess issues of technical or 
economic feasibility under section 60506(b). We interpret section 
60506(b)'s reference to ``issues of technical and economic 
feasibility'' to mean issues of ``technical feasibility'' on the one 
hand, and issues of ``economic feasibility'' on the other. We 
understand subsection (a)'s use of ``technically and economically 
feasible'' and subsection (b)'s use of ``technical and economic 
feasibility'' to reference the same concepts. We define a ``technically 
feasible'' policy or practice to mean one that is ``reasonably 
achievable as evidenced by prior success by covered entities under 
similar circumstances or demonstrated technological advances clearly 
indicating that the policy or practice in question may reasonably be 
adopted, implemented, and utilized.'' Similarly, we define an 
``economically feasible'' policy or practice to mean a policy or 
practice that is ``reasonably achievable as evidenced by prior success 
by covered entities under similar circumstances or demonstrated new 
economic conditions clearly indicating that the policy or practice in 
question may reasonably be adopted, implemented, and utilized.''
    73. In the NPRM, we sought comment on how to define and incorporate 
into our rules the concepts of technical and economic feasibility as 
they are used in section 60506. We asked detailed questions on the 
merits and mechanisms of adopting various approaches, including safe 
harbors, case-by-case analyses, or a combination thereof. Because 
neither the statute nor the legislative history contain definitions of 
these terms, the Commission must adopt an interpretation that, taken in 
the context of the statute as a whole, best effectuates the goal of 
section 60506. Based on this touchstone, the record we received in 
response to the NPRM, and Commission precedent, we adopt definitions of 
these terms that balance the goal of facilitating equal access to 
broadband internet access services with the technical and economic 
challenges facing covered entities as they work to expand and improve 
their networks in unserved and underserved communities.
    74. Commission and Legal Precedent. We adopt definitions of 
``technical feasibility'' and ``economic feasibility'' that are 
consistent with the Commission's precedent. The Commission has 
previously interpreted, individually or as a pair, the concepts of 
technical and economic feasibility in connection to its implementation 
of various statutes. While the

[[Page 4139]]

Commission's previous interpretations and applications of these terms 
have varied by context, these instances provide guidance for our 
implementation of section 60506. For example, the Commission has 
previously made determinations as to whether an activity was 
technically and economically feasible based on record support or lack 
thereof, adopted a rebuttable presumption of technical feasibility 
based on prior findings by a state commission, adopted a list of 
activity that is technically feasible, and established a process to 
analyze feasibility issues on a case-by-case basis. Furthermore, the 
Commission has closely scrutinized technical and economic feasibility 
issues, relied on industry past practice and success as key indicators 
of technical feasibility, and placed the burden on the entity asserting 
technical or economic infeasibility to prove the claim to the 
Commission's satisfaction.
    75. Judicial case law also informs our definitions of technical and 
economic feasibility for section 60506 purposes. In 2002, the Supreme 
Court decided a challenge to the Commission's implementation of section 
251 of the Communications Act that involved the Commission's 
interpretations of the statutory phrase ``technically feasible.'' 
Petitioners in that case argued that Commission rules requiring 
incumbent carriers to combine unbundled network elements where 
``technically feasible'' was unreasonable and in conflict with the 
statutory language. In upholding the Commission's rules, the Court 
rejected the petitioners' argument that the rules imposed no reasonable 
limits on the requirement to combine network elements. Rather, the 
Court held that the Commission's definition of ``technically feasible'' 
provided real limits on what would be required of incumbent local 
exchange carriers, concluding that ``[i]f `technically feasible' meant 
what is merely possible, it would have been no limitation at all.'' The 
Court's ruling, albeit in a different context, instructs that we should 
be skeptical of arguments suggesting that technical and economic 
feasibility are concepts operating at the margins of what is technical 
and economically convenient on the one hand, or what is technically and 
economically possible on the other.
    76. Technical Feasibility. Taking into account long-standing 
Commission precedent, we define a ``technically feasible'' policy or 
practice as one that is ``reasonably achievable as evidenced by prior 
success by covered entities under similar circumstances or demonstrated 
technological advances clearly indicating that the policy or practice 
in question may reasonably be adopted, implemented, and utilized.'' We 
use the Commission's definition of ``technically feasible'' from Sec.  
54.5 of the Commission's rules as a starting point. When implementing 
the interconnection provisions of the 1996 Act, the Commission 
similarly leveraged prior successful practice to identify and define 
technical feasibility. In that context, the Commission adopted rules 
that established previous points of interconnection or methods of 
access to unbundled network elements as ``substantial evidence'' that 
analogous points or methods are technically feasible. In the context of 
section 60506, a policy or practice will be considered technically 
feasible if it is reasonably achievable, as evidenced by prior success 
under similar circumstances. Moreover, because technological advances 
might provide ready means of achieving successful outcomes that have 
not occurred in the past, we will allow for the possibility that 
technical feasibility may be shown by ``demonstrated technological 
advances clearly indicating the reasonable achievability'' of the 
policy or practice in question.
    77. Economic Feasibility. We define an ``economically feasible'' 
policy or practice to mean one that is ``reasonably achievable as 
evidenced by prior success by covered entities under similar 
circumstances or demonstrated new economic conditions clearly 
indicating that the policy or practice in question may reasonably be 
adopted, implemented, and utilized.'' We again use the language of the 
Commission's definition of ``technically feasible'' in Sec.  54.5 as a 
baseline because anchoring economic feasibility in past industry 
practice will provide guidance to allow all interested stakeholders to 
gauge what is or is not economically feasible. Factors for analyzing 
economic feasibility of a policy or practice include, but are not 
limited to, projected income, projected expenses, net income, expected 
return on investment, competition, cash flow, market trends, and 
working capital requirements, and the standards under which such 
calculations are determined. A policy or practice will be considered 
economically feasible if relevant economic variables fall within 
acceptable ranges based on past industry practice. Determining economic 
feasibility thus requires a comparative analysis that accounts for past 
and present industry practices and new economic conditions that might, 
in some circumstances, require variances from such historical ranges.
    78. Our definitions of ``technically feasible'' and ``economically 
feasible'' join previous Commission interpretations of these terms with 
several important attributes specific to the present context. As a 
baseline, we interpret the categories of ``technical'' and ``economic'' 
feasibility broadly to encompass any legitimate business impediment to 
achievement of equal access. In addition to using prior successful 
policies and practices as the foundation for determining what is 
technically or economically feasible, we design our definitions to 
flexibly encompass future policies and practices and the inherent 
differences in the operation of covered entities of varying sizes and 
technologies. We also take a measured approach that considers the real 
burdens industry participants face in deploying and providing service, 
while also ensuring that we do not create ``a loophole that renders the 
rules meaningless.'' And lastly, we make clear that issues of technical 
and economic feasibility are related but ultimately distinct from each 
other.
    79. We take a measured approach to defining these terms, providing 
guideposts for understanding what is technically or economically 
feasible today and what could be feasible in the future. We emphasize 
that we do not define technical and economic feasibility as simple 
deference to a single entity's judgment, as many industry commenters 
argue we should. We agree with those commenters asserting that Congress 
did not adopt section 60506 to enshrine the current industry status 
quo. When considering what is technically or economically feasible, we 
expect covered entities to consider more than just what is the most 
convenient. For example, the Commission found in other contexts that 
the novelty or costliness of a particular business path does not, in 
itself, answer the question of whether that path is feasible, nor does 
the difficulty of a change in product design. At the same time, we do 
not create an ``impossibility'' standard as some commenters have warned 
against, which would define any action as technically or economically 
feasible unless it was impossible. Like the Commission's approach to 
defining ``technically feasible'' in the First Local Competition Order, 
61 FR 45476, the definitions we adopt today include reasonable 
limitations on what is considered technically or economically feasible 
and do not represent any attempt to ``control'' covered entities' 
investment decisions. Complying with the rules we adopt today does not

[[Page 4140]]

displace the ability of industry participants to make ``practical 
business choices and profit-related decisions.'' Rather, they are 
designed to ensure that industry participants incorporate into their 
decision-making processes consideration of the potential discriminatory 
impacts of their policies and practices, and that they seek to minimize 
any such discriminatory impacts.
    80. We acknowledge that the technical and economic challenges that 
covered entities face in deploying and serving rural, Tribal, and urban 
areas can vary greatly. At the same time, we agree with Public 
Knowledge et al. that ``broadband deployment may still be feasible in 
areas even where there are no similar circumstances to use as a 
benchmark,'' and if feasibility ``was limited to circumstances where 
there is a direct analog, certain areas that have gone long underserved 
due to unique characteristics might continue to fall through the 
cracks.'' Thus, we intend for our approach to technical and economic 
feasibility to encompass new, but analogous, policies and practices to 
account for variations among covered entity types and industry 
advancement. The Commission has previously crafted a definition of 
technical feasibility to outlast current technological development in 
the context of certain unbundling obligations for incumbent local 
exchange providers. Under those rules, the Commission adopted a 
rebuttable presumption that once one state had determined an approach 
was technically feasible, the same approach would be presumed to be 
technically feasible for incumbent local exchange carriers in every 
state. We decline at this time to adopt a presumption of feasibility, 
and therefore do not take the precise approach taken by the Commission 
in 1999. But we do find that we are similarly defining our concepts of 
technical and economic feasibility to allow for consideration of 
technical, infrastructure, economic, or other developments in the area 
under review. We also decline at this time to adopt any explicitly 
different standard for evaluating claims of economic feasibility for 
existing service offerings versus new deployments.
    81. While our definitions of technical and economic feasibility 
mirror each other, and in certain respects might be related, we 
consider each to be a distinct concept. The Commission has taken this 
approach previously, and commenters urge us to adopt the same approach 
here. We agree that a policy or practice may be technically feasible 
but not economically feasible, and vice versa.
    82. Standard. At this time, we find that a case-by-case approach 
provides the Commission needed flexibility to evaluate issues of 
technical and economic feasibility. In the NPRM, the Commission sought 
comment on whether we should assess infeasibility claims on a case-by-
case basis, adopt safe harbors, or take a combination of the two. In 
response, commenters voiced support for each of these approaches, as 
well as urging the Commission to adopt blanket presumptions of 
feasibility as opposed to a case-by-case review. We understand the 
arguments in favor of the adoption of one or more safe harbors to 
promote regulatory certainty and reduce the regulatory burden on 
providers, as well as arguments favoring a list of per se feasible 
methods of providing broadband internet access service or presumptions 
of feasibility in all or certain instances to increase compliance. The 
Commission has in the past adopted rules taking each of these 
approaches. Based on the record and information we have today, however, 
we find it is premature to incorporate safe harbors or feasibility 
presumptions into our definitions of technical and economic 
feasibility. In this connection, we defer any further decisions 
regarding the adoption of one or more safe harbors until we have 
developed experience on how they would operate in practice. As 
explained in more detail below, we do adopt a presumption of compliance 
from enforcement action that we find will lower the compliance burden 
for covered entities without compromising consumer protection. Thus, at 
this juncture, we will evaluate issues of technical or economic 
feasibility on a case-by-case basis so as to deter violations of our 
rules while allowing those issues to be fully explained to and 
considered by the Commission.
    83. We also design our case-by-case approach to flexibly account 
for the differences between covered entities of varying sizes, 
technologies, and circumstances. We agree with those commenters, like 
Competitive Carriers Association, who encourage us to take a ``a 
practical and flexible approach that encourages innovation and 
investment to close the digital divide.'' Therefore, we decline at this 
time to adopt distinct standards or definitions for different types of 
covered entities. We find that our adopted definitions will allow the 
Commission to consider what is reasonably achievable for the particular 
entity under investigation. Moreover, as the Commission has found 
previously, legal or regulatory constraints can also be considered when 
determining technical feasibility.
    84. Furthermore, we find that when the Commission conducts an 
investigation under the enforcement process described below, the entity 
under investigation will have the burden of proving to the Commission 
that the policy or practice in question is justified by genuine issues 
of technical or economic feasibility. The Commission has commonly taken 
this approach in previous approaches analyzing ``technical 
feasibility,'' as well as regarding satellite carriers claiming 
``technical or economic infeasibility'' in the market modification 
context. In the context of section 60506, we find that assigning this 
burden to the entity under investigation is inherent in the structure 
of our definition of ``digital discrimination of access.'' We find, as 
the Commission has previously, that as a practical matter, it is the 
entity providing the justifications for its policies and practices that 
has access to the necessary information to support their factual 
assertions. And, as we have previously stated, those justifications 
will usually involve arguments and evidence that technical or economic 
constraints limit the availability of less discriminatory alternatives.
    85. Finally, we emphasize that the Commission will closely 
scrutinize claims of technical or economic feasibility through review 
of documentation submitted by the entity under investigation, publicly 
available reports and other information, interviews and depositions of 
relevant personnel, and other available information. Under the 
Commission's market modification rules, the Commission created a 
process for satellite carriers to claim an inability to broadcast in 
certain locations due to technical and economic feasibility. In 
practice, the Commission's Media Bureau closely scrutinizes satellite 
carriers' infeasibility claims under Sec.  76.59 of the Commission's 
rules. Similarly, in the context of our section 60506 rules, the 
Commission will not defer to the entity seeking to justify policies and 
practices alleged to be discriminatory. We will require proof by a 
preponderance of the evidence that the policy or practice in question 
is justified by genuine issues of technical or economic feasibility. 
Stated differently, a covered entity can demonstrate that a policy or 
practice is justified by genuine issues of technical or economic 
feasibility by showing that less discriminatory alternatives are not 
reasonably available and achievable because of genuine technical or 
economic constraints.

[[Page 4141]]

Prohibition of Digital Discrimination of Access

    86. Today we adopt a rule broadly and directly prohibiting 
``digital discrimination of access'' as we have now defined it. Our 
prohibition thus forbids both intentionally discriminatory conduct 
(that is, applies a disparate treatment standard) as well as conduct 
that produces discriminatory effects (that is, applies a disparate 
impact standard). This approach does not supplant, but rather 
supplements the Commission's past and ongoing efforts to facilitate 
broadband access through affirmative approaches.
    87. At this time, we find that this broad prohibition and the 
enforcement mechanisms described below are the most cost-effective 
means to accomplish Congress's stated objectives in section 60506. 
Prohibiting discrimination in access to broadband service is necessary 
to facilitate equal access to broadband and prevent digital 
discrimination of access, and both of these goals are required by the 
statute. In that same vein, unequal access to broadband service imposes 
significant costs on unserved and underserved communities, and on the 
Nation as a whole. The voluntary informal complaint process described 
below is a low-cost approach toward meeting the statutory requirement 
that leverages existing Commission systems. Similarly, enforcement of 
the broad prohibition through self-initiated investigations affords the 
Commission ample flexibility without substantially overhauling the 
enforcement process. Such low-cost approaches will allow the Commission 
to enforce the statute in a cost-effective manner, while bringing the 
undeniable benefits of expanded broadband access. Lastly, our rules are 
designed to minimize the compliance- and other-related costs they will 
likely impose on broadband providers and the other entities our 
prohibition covers.
    88. Fundamentally, a policy or practice will violate our 
prohibition on digital discrimination of access if it discriminates, 
either by intent or in effect, based on one of section 60506's listed 
characteristics. In determining whether a policy or practice violates 
the prohibition we adopt today, the Commission will look first to 
whether the policy or practice in question differentially affects 
access to broadband service or is intended to do so. If that question 
is answered in the affirmative, the Commission will review any issues 
of technical or economic feasibility that may compel use of the 
challenged policy or practice rather than a less discriminatory policy 
or practice. In other words, the rules we adopt today require 
assessment in the first instance of whether a policy or practice is 
discriminatory; and if so, whether there were reasonably available and 
achievable alternatives (i.e., alternatives that were technically and 
economically feasible) that would have been less discriminatory.
    89. We disagree with commenters asserting that section 60506 does 
not authorize a prohibition on private conduct. These commenters 
variously claim that section 60506, as part of the Infrastructure Act, 
only obligates the Commission to undertake affirmative-based efforts, 
e.g., by funding the expansion of covered entities' broadband 
footprints or by promoting digital skill building and adoption of 
broadband by consumers through other initiatives outside this 
proceeding. Congress did not specify the means by which the Commission 
should fulfill its obligations under section 60506. As explained above, 
we conclude that the statutory language authorizes the Commission to 
address and combat both intentional discrimination and disparate 
impacts. The U.S. Chamber of Commerce contends that the Commission's 
adoption of ``new civil-rights legislation wholesale, including 
authorization of unfunded deployment mandates or rate regulation,'' 
would constitute a violation of the nondelegation doctrine. However, 
our prohibition today--a narrower action than that complained about--
simply fulfills the task Congress, using clear language directing the 
Commission to prevent digital discrimination of access, gave us to 
perform. Adoption of these rules does not require an impermissible 
assumption of Congress's legislative powers; it only exercises the 
authority the Infrastructure Act conferred under the guidance provided 
in that statute. A prohibition of the kind we adopt today proves 
necessary to effectuate this charge. It does so by deterring 
discrimination in the first instance (thereby ``preventing'' its 
occurrence) while also enabling the Commission to target behaviors that 
affirmative-based approaches alone may be insufficient to change.
    90. We also disagree with commenters arguing that a broad 
prohibition against digital discrimination of access will fundamentally 
transform the current regulatory landscape. As we explain below, our 
approach, which implements the directive in section 60506, involves 
self-initiated investigations. Such investigations may be premised on 
information submitted by the public, communications with state, local, 
or Tribal officials, or through outreach via other channels. However, 
we note that a complaint or allegation alone does not necessarily 
warrant an enforcement response from the Commission, thus ameliorating 
any such concerns raised by some commenters. Our prohibition--
consistent with the Commission's nondiscrimination requirements 
associated with its ongoing efforts to promote broadband access--and 
the enforcement methods we outline below represent an important, yet 
incremental, step in furthering the Commission's and Congress's digital 
equity goals.

Scope of Prohibition

Covered Entities
    91. We find that the digital discrimination of access rules we 
adopt today shall apply to entities that provide, facilitate and affect 
consumer access to broadband internet service. Covered entities 
include, but are not limited to, broadband providers as defined in rule 
54.1600(b), contractors retained by, or entities working through 
partnership agreements or other business arrangements with, broadband 
internet access service providers; entities facilitating or involved in 
the provision of broadband internet access service; entities 
maintaining and upgrading network infrastructure; and entities that 
otherwise affect consumer access to broadband internet access service 
as further discussed below. In the Notice of Inquiry, we sought comment 
on whose ``policies or practices . . . that differentially impact 
consumers' access to broadband internet access service'' should be 
covered by our definition of digital discrimination of access. We also 
sought comment on whether we should understand digital discrimination 
of access to include policies or practices by a broader range of 
entities than broadband providers. To achieve the policy that 
``subscribers should benefit from equal access to broadband internet 
access service,'' and fulfill Congress's directive that the Commission 
``facilitate equal access to broadband internet access service,'' we 
have determined that the rules must include not only broadband 
providers, but also other entities that provide services that 
facilitate and affect consumer access. The record supports this 
determination. We thus find that there are a range of entities that 
facilitate and can affect consumer access to broadband. Therefore, we 
find that our rules and, in particular, our prohibition against digital 
discrimination of access, extend not only to broadband providers, but 
also to entities that provide services that facilitate and meaningfully 
affect

[[Page 4142]]

consumer access to broadband internet access service.
    92. Numerous commenters agree that broadband providers are not the 
only entities that should be subject to these rules. To be sure, other 
platforms and organizations affect consumer access to broadband 
internet access service. For example, Lawyers' Committee for Civil 
Rights Under Law argues that section 60506 prohibits interference with 
equal access to broadband by any type of entity because guaranteeing 
equal access to broadband for all individuals requires applying the 
statute to any entity that can affect the ability of an individual to 
access the service, not just those entities that provide connectivity. 
And as TURN states, as technology evolves, the Commission's rules must 
be able to address future technological evolutions that may affect or 
interfere with broadband internet access. Lastly, National Digital 
Inclusion Alliance and Common Sense Media urge us to apply our rules to 
any entity--subsidiary, parent company, or other--that provides 
broadband internet access service.
    93. We disagree with arguments that our authority under 60506(b) 
extends only to providers of broadband internet access service because 
``only a service provider, and not some other class of entity, can 
`offer' a `service'.'' As explained below, we believe the definition of 
``equal access'' in section 60506(a), which applies both to section 
60506(b)'s mandate that we facilitate equal access and that we prevent 
digital discrimination of access, focuses on consumers' opportunity to 
receive and effectively utilize an offered service. Conduct by entities 
other than broadband providers might impede equal access to broadband 
internet access service on the bases specified in the statute. For 
example, the Lawyers' Committee for Civil Rights Under Law provides 
several examples of how entities may impact consumer access based on 
protected characteristics, including a landlord restricting broadband 
options within a building even if multiple providers are available. 
While we reach no conclusion whether this, or other specific examples 
in the record would be covered by our rules, we are persuaded that 
there could be situations--now or in the future--in which non-providers 
could impede equal access to broadband internet access service based on 
the listed characteristics. Moreover, while we are not explicitly 
tasked with regulating entities outside the communications industry, 
section 60506 does require us to facilitate equal access to broadband 
by ``preventing'' and identifying steps necessary to ``eliminate'' 
digital discrimination of access. Thus, to the extent that entities 
outside the communications industry provide services that facilitate 
and affect consumer access to broadband, they may be in violation of 
our rules if their policies and practices impede equal access to 
broadband internet access service as specified in the rules. To the 
extent that such entities have policies or practices that 
differentially impact consumers' access to broadband internet access 
service, we will consider, among other things, the closeness of the 
relationship between that entity's policies and practices and the 
provision of broadband service. By way of example, the U.S. Supreme 
Court long ago upheld the Commission's exercise of jurisdiction over 
prohibited surcharges imposed by hotels and apartment owners based on 
arrangements they made with the telephone company, and where the 
practice was ``so identified'' with the communications service that it 
was brought within the prohibition. We also note that section 411(a) 
provides as follows: ``In any proceeding for the enforcement of the 
provisions of this Act, . . . it shall be lawful to include as parties, 
in addition to the carrier, all persons interested in or affected by 
the charge, regulation, or practices under consideration, and 
inquiries, investigations, orders, and decrees may be made with 
reference to and against such additional parties in the same manner, to 
the same extent, and subject to the same provisions as are or shall be 
authorized by law with respect to carriers.''
    94. Lastly, we acknowledge that commenters disagree on whether to 
include infrastructure owners and local governments within the scope of 
our rules, but we decline to expressly carve out specified entities 
from the scope of coverage at this time. City of Philadelphia, City of 
Oklahoma, City of Minneapolis, etc. (Local Governments) argue that not 
considering infrastructure owners as providers of broadband services 
subject to our digital discrimination of access rules would allow 
broadband providers to outsource their deployments to third parties to 
avoid our equal access rules. WIA disagrees with Local Governments in 
their assertion that infrastructure owners should be covered by the 
rules on digital discrimination of access, arguing that doing so would 
unlawfully expand the Commission's jurisdiction. Additionally, Local 
Governments request that we not categorize local governments as 
``covered entities'' based on their roles as right-of-way managers or 
franchise regulators. While there may be tension in the record as to 
the role these entities play, our rule is clear that any entity that 
meaningfully affects access to broadband internet service is subject to 
our digital discrimination of access rules.
Covered Consumers
    95. The definition of digital discrimination of access adopted 
today includes ``policies and practices . . . that differentially 
impact consumers' access to broadband internet access service . . . or 
are intended to have such differential impact.'' In the NPRM, we sought 
comment on the meaning of ``consumers'' and who would fall within the 
scope of this term. Commenters to the NPRM proposed various 
definitions. We today define ``consumers'' in this context to mean both 
current and potential subscribers, which includes individual persons, 
groups of persons, individual organizations, and groups of 
organizations having the capacity to subscribe to and receive broadband 
internet access service. We define ``subscriber'' as a current 
recipient of broadband internet access service as defined in Sec.  
8.1(b) of the Commission's rules.
    96. Consistent with the purposes of section 60506, the term 
``consumers'' as used in our adopted definition of digital 
discrimination of access comprises current subscribers and prospective 
subscribers of broadband internet access service. Our rules do not 
cover other types of broadband service, such as business data services 
or enterprise customer purchases. And, under this rule, individual or 
groups of persons, organizations, or businesses fall within the scope 
of the term ``consumer.'' Covering both current and prospective 
subscribers is supported for several reasons. First, section 60506's 
Statement of Policy directs the Commission to ``ensure that all people 
of the United States benefit from access to broadband.'' As the 
American Library Association observes, ``[t]here are `people of the 
United States' who are not subscribers because they experience digital 
discrimination that precludes them from becoming subscribers.'' The 
California Public Utilities Commission further observes that ``one 
cannot count as a subscriber if broadband service is not offered to 
them in the first place.'' We agree. We would not be fulfilling our 
statutory mandate to facilitate equal access to broadband internet 
access service if we failed to include unenrolled or prospective 
subscribers as ``consumers'' under our rules. Second, limiting 
``consumers'' to existing subscribers would do nothing to expand

[[Page 4143]]

broadband availability in unserved communities. By way of example, the 
Japanese American Citizens League expressed that a large number of 
small businesses in the historic San Francisco Japantown business 
district remain unconnected to the internet with reliable broadband 
access. If high-speed broadband service were unavailable in a 
particular geographic area because of discriminatory conduct, by 
definition there could be no subscribers in that area. And if the 
Commission's rules were limited to ensuring equal access by those 
already subscribing to a service, there would be nothing the Commission 
could do to investigate the reasons for this lack of access on the part 
of non-subscribers. Under the argument pressed by certain commenters, 
the Commission's rules would instead be confined to leveling service 
quality, pricing and other terms of service as between underserved 
communities and better-served communities. Such a limitation is not 
consistent with section 60506's overarching purpose to ``ensure that 
all people of the United States benefit from equal access to broadband 
internet access service.''
    97. We therefore reject commenters' arguments that the 
``consumers'' covered by our rules should be limited to subscribers. We 
disagree with NTCA's argument that the Commission's purview is limited 
to ``subscribers,'' referring to ``those who purchase service from the 
provider.'' The Commission cannot fulfill Congress's directive to 
facilitate equal access to broadband internet access service without 
being able to address the issues that limit the opportunity to 
subscribe in the first instance. We firmly believe Congress intended 
the rules implementing section 60506(b) to facilitate the expansion of 
access of broadband service by eliminating discrimination, not just the 
leveling of service quality and terms. Therefore, our rules for digital 
discrimination of access cover all consumers, including both current 
and prospective subscribers.
    98. We also find that, for purposes of our definition of ``digital 
discrimination of access,'' the term ``consumers'' includes not only 
individuals, but also groups of persons, organizations, and businesses. 
We agree with National Digital Inclusion Alliance and Common Sense 
Media that digital discrimination of access can manifest differently 
when it affects a single person, as compared to a group of persons 
within a community, and either type of discrimination can violate the 
rules.
    99. In the NPRM, we sought comment on whether there are practical 
or administrative costs and benefits to the Commission, industry and 
those who might suffer discrimination if both persons and organized 
groups of persons (such as community associations) are covered by our 
definition. As supported by the comments, we find no significant 
additional costs in defining ``consumers'' to include persons and 
organized groups of persons, as well as groups of organizations. As 
discussed in the informal complaints section below, we recognize that 
community associations and other organizations might well submit the 
majority of informal complaints relating to digital discrimination of 
access, and we have no concerns on that score.
Listed Characteristics
    100. Congress identified six characteristics as bases for digital 
discrimination of access--income level, race, ethnicity, color, 
religion, and national origin. In the NPRM, we sought comment on 
whether we should expand our definition to 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. While some commenters argue we should expand the listed 
characteristics, others disagree.
    101. Based on the language of the statute, we do not add to the 
listed characteristics of persons protected under the rules that serve 
as the bases for considering digital discrimination of access. Even 
though the statute affords protection against digital discrimination of 
access based on national origin, some commenters urge us to incorporate 
``limited-English proficiency'' (LEP) as an express listed 
characteristic under the rules. It is well established, however, that 
discriminating against persons based on their limited-English 
proficiency can constitute a form of national origin discrimination. 
Federal agencies have interpreted Title VI's prohibition against 
national origin discrimination to require that LEP individuals have 
meaningful access to federally funded programs and activities. This 
same interpretation as to national origin discrimination has been given 
under the Fair Housing Act. Congress must be presumed to have 
deliberately limited the list of protected characteristics in section 
60506(b) to income level, race, ethnicity, color, religion, and 
national origin. While we acknowledge the strong record support for 
extending the rule to cover persons with other characteristics, federal 
antidiscrimination laws often vary in terms of the protected classes 
they cover. For example, many commenters discussed the challenges faced 
by people with disabilities in securing access to high quality 
broadband services. For instance, Title VII of the Civil Rights Act 
protects against discrimination based on ``race, color, religion, sex, 
or national origin,'' whereas the FHA goes further and includes 
additional protections for ``disability and familial status.'' Here, 
Congress chose the six listed, protected characteristics and not 
others. This does not mean that the legitimate concerns of persons with 
these additional characteristics is to be minimized. To the contrary, 
the record is replete with evidence that classes beyond the six listed 
groups face varying broadband-related challenges. We have no discretion 
to overrule the choice made by Congress in this regard, at least as it 
applies to our rules implementing section 60506(b). Under section 
60506(c)(3), the Commission and the Attorney General can seek to 
prohibit ``deployment discrimination'' based on factors other than 
those listed in that section, based on the record developed in this 
proceeding. Further, even if not covered by Section 60506(b), people 
with disabilities may avail themselves of other federal laws governing 
digital accessibility, such as the Americans with Disabilities Act of 
1990 (ADA), the Rehabilitation Act of 1973, and the Twenty-First 
Century Communications and Video Accessibility Act of 2010 (CVAA).
    102. Our work towards ensuring broadband access does not begin or 
end with this statute. We will continue to address access to broadband 
under other sources of authority. For example, we have established 
accessibility protections under other statutory grants that govern the 
ACP, ECF, and EBB programs. The ACP supports the purchase of broadband 
access services and connected devices, such as tablets and laptops, and 
requires them to be accessible. In the Emergency Connectivity Fund 
Report and Order, the Commission established an expectation that 
connected laptops be accessible to students, school staff, and library 
patrons with disabilities to address their remote learning needs. For 
these connected laptops, school districts have purchased accessibility 
features such as software providing screen magnification, screen 
reading functionalities, captioning services, and touchscreens for 
students with significant fine motor skills difficulties. As we move 
forward, we will continue to use all the tools at our disposal to ease 
the digital accessibility divide.

[[Page 4144]]

Covered Services
    103. For purposes of these rules, we apply the same definition of 
``broadband internet access service'' that appears in Sec.  8.1(b) of 
the Commission's rules. That definition states: The term ``broadband 
internet access service'' means ``a mass-market retail service by wire 
or radio that provides the capability to transmit data to and receive 
data from all or substantially all internet endpoints, including any 
capabilities that are incidental to and enable the operation of the 
communications service, but excluding dial-up internet access service. 
This term also encompasses any service that the Commission finds to be 
providing a functional equivalent of the service described in the 
previous sentence or that is used to evade the protections set forth in 
this part.'' We use the terms ``broadband,'' ``covered services,'' and 
``broadband internet access service'' interchangeably.
    104. In the NPRM, we sought comment on the scope of services that 
should be covered by our rules. We also specifically sought comment on 
whether the above-referenced definition of ``broadband internet access 
service'' fully captures the scope of technologies relevant to digital 
discrimination of access. In determining the scope of our definition of 
digital discrimination of access, we find that the term ``broadband 
internet access service'' in that definition has the same meaning given 
the term in Sec.  8.1(b), and encompasses the range of services that 
may give rise to digital discrimination of access. In the proposed 
definition of ``digital discrimination of access,'' the Commission 
sought comment on whether ``covered services'' should be limited to 
broadband internet access service. No commenter opposed using this 
definition of ``broadband internet access service.'' We find that the 
straightforward and well-established definition best delineates the 
scope of covered services under the rules we adopt today.
    105. Moreover, the record reflects strong support for adopting 
Sec.  8.1(b)'s definition. As Local Governments notes, including all 
types of broadband providers is consistent with the Restoring Internet 
Freedom Order, 80 FR 19737, which found that the term ``broadband 
internet access service'' includes ``services provided over any 
technology platform, including but not limited to wire, terrestrial 
wireless (including fixed and mobile wireless services using licensed 
or unlicensed spectrum), and satellite.'' Providers can use various 
forms of technology to provision broadband to consumers, including 
digital subscriber line (DSL), cable modem, fiber, fixed and mobile 
wireless, and satellite. By incorporating the established meaning of 
``broadband internet access service'' in the definition of ``digital 
discrimination of access,'' we ensure that our rules accurately reflect 
the scope of services that may give rise to instances of digital 
discrimination of access and thus fulfill the Congressional direction 
in section 60506 to facilitate equal access to broadband internet 
access service and prevent digital discrimination of access.
Covered Elements of Service
    106. The rules we adopt today apply to any lack of comparability in 
service quality, as indicated by the metrics specifically listed in the 
statutory definition of ``equal access'' as well as any ``other quality 
of service metrics in a given area,'' and to any lack of comparability 
in terms and conditions of service, including but not limited to price. 
We find this scope of coverage to be consistent with section 60506's 
statutory text and necessary to effectuate its purpose.
    107. In broadly applying our rules to all relevant service quality 
metrics and all terms and conditions of service, we note that Congress 
directed the Commission to facilitate equal access to the entirety of 
broadband internet service, not to certain elements of such service. 
Congress defined ``equal access'' in section 60506's statement of 
policy to mean that consumers have ``the equal opportunity to 
subscribe'' to broadband internet access service with ``comparable 
speeds, capacities, latency, and other quality of service metrics in a 
given area, for comparable terms and conditions[.]'' As many commenters 
explain, the inclusion of ``other quality of service metrics'' and 
``comparable terms and conditions'' in the definition of ``equal 
access'' reflects Congressional intent and authorization that the 
Commission's digital discrimination of access rules cover any aspect of 
broadband internet access service that impedes, impairs or denies 
``equal access'' to that service.
    108. The aspects of service that could affect a consumers' ability 
to receive and effectively utilize broadband internet access service 
include, but are not limited to, deployment, technical terms and 
conditions of service, such as policies and practices regarding speeds, 
capacities, latency, data caps; network infrastructure deployment, 
network reliability, network upgrades, network maintenance, customer-
premises equipment, and installation; as well as non-technical terms 
and conditions of service, such as policies and practices regarding 
contractual terms generally, mandatory arbitration clauses, pricing, 
deposits, discounts, customer service, language options, credit checks, 
marketing or advertising, contract renewal, upgrades, account 
termination, transfers to another covered entity, and service 
suspension. Moreover, in order to fully effectuate the goals of section 
60506, we find that our rules must cover both actions and omissions, 
whether recurring or a single instance, concerning these aspects of 
service, that defeat comparability of service quality, terms, and 
conditions.
    109. We find that adopting a broad definition of covered elements 
of service is both consistent with the language of section 60506 and 
necessary to fulfill its purpose. First, by including the catch-all 
language ``and other quality of service metrics in a given area,'' 
Congress expressly authorized the Commission to supplement the listed 
elements of service to include all measurable quality-of-service 
elements that could affect consumers' ability to receive and 
effectively utilize broadband internet access service. As the record 
reflects that policies and practices relating to an array of technical 
and non-technical aspects of service can affect a consumer's ability to 
access broadband, a definition with a narrower scope could lead to the 
Commission's rules failing to cover some aspects of service that result 
in digital discrimination of access. Consequently, we agree with 
Lawyers' Committee for Civil Rights Under Law that adopting a flexible 
approach is necessary ``to capture the long tail of intangible 
variables that are difficult to list exhaustively and are subject to 
change.'' Second, our definition provides us with the advantage of 
flexibility, which will ``future proof'' our rules as technologies, 
policies, and practices change over time. For these reasons, we reject 
the argument that by including certain quality of service metrics in 
60506(a)(2), Congress foreclosed consideration of other measurable 
elements of service quality in evaluating whether equal access has been 
achieved.
    110. We reject arguments that we should limit the scope of covered 
elements of service to deployment practices or technical terms of 
service, or that we exclude certain terms, such as pricing. We are 
persuaded that Congress intended for the Commission's rules 
implementing section 60506(b) to cover more than deployment practices. 
As noted above, Congress directed the Commission in section 60506(b) to 
adopt rules to facilitate equal access to broadband internet access 
service,

[[Page 4145]]

including ``preventing digital discrimination of access'' and 
identifying necessary steps for the elimination of such discrimination. 
By contrast, in section 60506(c), Congress directed the Commission and 
the Attorney General to ensure that federal policies prohibit 
``deployment discrimination'' based on the income level of an area, the 
predominant race or ethnicity of an area, or other factors the 
Commission determines to be relevant based on the record in this 
proceeding. Had Congress wished to limit the scope of section 60506(b) 
to ``deployment discrimination,'' it would have done so explicitly. The 
use of two different terms (``digital discrimination of access'' and 
``deployment discrimination'') in adjacent subsections of a one-page 
section of the statute clearly indicates that Congress intended the two 
terms to have different meanings. Further, Congress was well aware that 
factors other than initial deployment of the necessary network 
infrastructure, such as network upgrades and maintenance at an absolute 
minimum, affect the ability of consumers to effectively utilize 
broadband internet access service. Given that the definition of ``equal 
access'' expressly includes ``quality of service metrics'' that are 
determined by such network upgrades and maintenance, we cannot accept 
that Congress intended to limit section 60506(b)'s reach to broadband 
deployment. Such an interpretation would defeat the purpose of the 
statute.
    111. Finally, regarding the inclusion of pricing within the scope 
of our rules, we find that the statutory language encompasses 
discriminatory pricing. We emphasize that the rules we adopt today do 
not set rates for broadband internet access service and are not an 
attempt to institute rate regulation. Once again, section 60506(b) 
directs us to ``adopt final rules to facilitate equal access to 
broadband internet access service,'' and ``equal access'' is defined in 
section 60506(a)(2) as the equal opportunity to subscribe to an offered 
service that provides comparable quality of service ``for comparable 
terms and conditions.'' (emphasis added). We are unpersuaded by the 
arguments of commenters that pricing is not included (or includable) in 
the terms and conditions that must be ``comparable'' under the 
statutory definition of equal access. Indeed, pricing is often the most 
important term that consumers consider when purchasing goods and 
services across the Nation's economy. We find this is no less true with 
respect to broadband internet access service. Consequently, we do not 
believe it was necessary for Congress to specifically reference pricing 
in the definition of ``equal access'' because the most natural reading 
of ``terms and conditions'' includes pricing. Moreover, it would be odd 
for Congress to direct the Commission to consider technical and 
economic feasibility and have our rules not allow any consideration of 
differential pricing when analyzing a digital discrimination of access 
claim. The Commission need not prescribe prices for broadband internet 
access service, as some commenters have cautioned against, in order to 
determine whether prices are ``comparable'' within the meaning of the 
equal access definition. The record reflects support for the Commission 
ensuring pricing consistency as between different groups of consumers. 
We also find that the Commission is well situated to analyze 
comparability in pricing, as we must already do so in other contexts. 
For example, we analyze the ``lowest corresponding price'' in the 
universal service context and conduct the Urban Rate Survey, both of 
which require comparing the prices that covered entities charge 
different groups of customers for broadband. We find that the ``terms 
and conditions'' covered by the ``equal access'' definition in section 
60506(a) includes pricing terms and conditions, and that ``digital 
discrimination of access'' therefore includes discrimination with 
regard to such pricing.
    112. We also reject Verizon's argument that our rules cannot apply 
to policies and practices that occur after a customer subscribes to 
broadband internet access service. Verizon argues that the definition 
of ``equal access'' limits the scope of our rules to policies and 
practices affecting only the ``opportunity to subscribe'' to broadband 
service in the first instance. In other words, Verizon argues that our 
rules can only address policies and practices concerning the consumer's 
ability to sign up for service (i.e., contract formation), but cannot 
address whether the service is actually rendered on equal terms (i.e., 
contract performance). We disagree with this interpretation. We 
acknowledge that the definition of ``equal access'' in section 60506(a) 
refers to the ``equal opportunity to subscribe to an offered service . 
. . .'' But we find the word ``subscribe'' in this context means more 
than simply signing up for service. It refers, instead, to the ability 
to receive and effectively utilize the service so as to allow full 
participation in the social, educational, political and economic life 
of our Nation. The Statement of Policy in section 60506(a) says that 
``subscribers should benefit from equal access to broadband internet 
access service'' and that ``the Commission should take steps to ensure 
that all people of the United States benefit from'' such equal access. 
There is little or no benefit to be derived simply from having the 
opportunity to sign up for broadband service if the covered entity can 
freely engage in discriminatory policies and practices with regard to 
the ongoing provision of that service. Rather, the potential social, 
educational, political and economic benefits flow from having the 
opportunity to receive the service and effectively utilize it. We find 
that interpreting section 60506 in the cramped manner urged by Verizon 
is flatly inconsistent with Congress's goal of expanding access to 
broadband internet access service. We therefore reject that 
interpretation.

Revising Commission's Informal Consumer Complaint Process

    113. We adopt the proposals in the NPRM to revise our informal 
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. Subsection 60506(e) 
requires that the Commission ``revise its public complaint process to 
accept complaints from consumers or other members of the public that 
relate to digital discrimination.'' Currently, consumers use the 
Commission's Consumer Complaint Center to file informal complaints. The 
Commission's informal consumer complaint process, administered by the 
Consumer and Governmental Affairs Bureau, is a long-standing, free and 
efficient way for consumers to raise issues with their service 
providers and bring problems to the attention of the Commission. The 
FCC's informal consumer complaint process facilitates a conversation 
between the consumer and their provider to address the consumer's 
issues. The consumer complaint process does not involve arbitration, 
mediation, or investigation. The collective data received from informal 
consumer complaints help the Commission monitor what consumers are 
experiencing and inform our policy and enforcement work. In adopting 
our proposed changes to our informal consumer complaint process, we 
implement subsection 60506(e).

[[Page 4146]]

    114. We agree with the majority of commenters who assert that 
consumers should have an easily accessible complaint process. Such a 
process will not only benefit consumers in filing complaints related to 
digital discrimination of access but will also assist the Commission in 
monitoring what consumers are experiencing, identifying trends, and 
informing potential policy determinations or enforcement. We note that 
the Commission's Consumer Complaint Center is responsive on mobile 
devices and that the FCC's call center is staffed by both English and 
Spanish speaking agents who can file complaints on behalf of consumers. 
Individuals who use videophones and are fluent in American Sign 
Language (ASL) may call the Commission's ASL Consumer Support line for 
assistance in ASL with filing informal complaints or obtaining consumer 
information. Consistent with our current process and procedures, 
consumers may also file complaints via the Consumer Inquiries and 
Complaint Center, as well as by fax and postal mail.
    115. We thus disagree with commenters who argue that our proposed 
informal complaint process changes would impose undue burdens on 
covered entities. Our proposed changes do not alter the existing 
informal complaint process. Rather, our proposed changes make it easier 
for consumers to file informal complaints related to digital 
discrimination of access, as mandated by Congress, and allow the 
Commission to better analyze such complaint data. Indeed, Commission 
experience with the dedicated pathway for ACP complaints has 
demonstrated the utility of such a dedicated pathway.
    116. We also disagree with the International Center for Law & 
Economics, which argues that the Commission should implement a legal 
``standing'' requirement for filing informal complaints. The 
Commission's informal consumer complaint process is designed 
specifically to provide consumers with a simple and efficient way raise 
concerns and file complaints with the Commission without complicated 
legal procedures, filing fees, or other burdensome requirements. The 
Commission does not currently impose any standing requirements for 
filing informal consumer complaints. Adopting a standing requirement 
specifically for digital discrimination of access issues with the 
Commission would, in effect, thwart a consumer's ability to do so. Such 
an outcome would be contrary to the express language of section 60506.

Dedicated Pathway for Digital Discrimination of Access Complaints

    117. We adopt our proposal to add a dedicated pathway for digital 
discrimination of access complaints. This dedicated pathway will 
provide digital discrimination informational content in the Consumer 
Complaint Center to educate consumers about digital discrimination and 
to provide clear instructions to consumers on how to correctly file a 
digital discrimination complaint. Consumers will be able to submit 
their digital discrimination of access complaints through the Consumer 
Inquiries and Complaint Center. They will be required to choose an 
issue that best describes their complaint and include a narrative with 
pertinent details. These complaints will be reviewed and processed. If 
the consumer submits a complaint alleging digital discrimination of 
access by a covered entity, the complaint will be forwarded to the 
appropriate covered entity for investigation and the Commission may set 
a due date for the covered entity to provide a written response to the 
informal complaint to the Commission, with a copy to the complainant. 
Complaint information will be reviewed internally to inform policy and 
shared internally, when appropriate, for potential enforcement. In 
addition, we note that the Commission's established administrative 
processes and procedures afford the Enforcement Bureau access to all 
consumer complaint data that is submitted through the Consumer 
Inquiries and Complaint Center. The record in this proceeding reflects 
widespread support for establishing such a pathway. We agree with 
commenters that adding a dedicated pathway will increase both the 
accessibility and efficiency of the complaint process. We direct the 
Consumer and Governmental Affairs Bureau to implement this dedicated 
pathway and, in coordination with the Wireline Competition Bureau, to 
monitor complaints submitted through this pathway to assist in the 
formulation of future policy and consumer education initiatives.
    118. We also agree with those commenters who stress the need to 
educate consumers on the issue of digital discrimination of access and 
the complaint process associated with such complaints. We direct the 
Consumer and Governmental Affairs Bureau, in coordination with the 
Wireline Competition Bureau, to develop materials to educate consumers 
on digital discrimination of access and on how to file complaints via 
the dedicated pathway.
    119. Need for Dedicated Pathway. We find that our informal consumer 
complaints process provides the best opportunity for consumers to 
inform the Commission of digital discrimination of access issues. The 
informal complaint process requires no complicated legal procedures, 
has no filing charge, and does not require the complaining party to 
appear before the Commission, making it an easy and efficient method 
for consumers to bring issues to the Commission's attention. The 
Commission reviews informal consumer complaints and, when applicable, 
will identify trends and share information internally in furtherance of 
our enforcement and consumer protection efforts. As the Commission 
takes seriously its enforcement obligations, we direct the Enforcement 
Bureau, in coordination with the Consumer Governmental Affairs Bureau 
and the Wireline Competition Bureau, to expeditiously investigate 
potential violations and enforce our rules using the Commission's 
traditional enforcement mechanisms.

Voluntary Demographic Information Collection

    120. We adopt our proposal to collect voluntary demographic 
information from filers who submit digital discrimination of access 
complaints. We note that the statute requires the Commission to 
``prevent[ ] digital discrimination of access based on income level, 
race, ethnicity, color, religion, or National origin[.]'' We find that 
collecting minimal, voluntary demographic information from individuals 
filing complaints may enable us to identify and understand some 
underlying patterns of digital discrimination of access that might not 
otherwise be apparent from the substance of the complaints, thus 
increasing the utility of the informal complaint process as it relates 
both to policy development and enforcement. We agree that this 
collection should be voluntary on the part of the complainant and 
direct the Consumer and Governmental Affairs Bureau to make clear that 
this information is not required in order to submit a digital 
discrimination of access complaint, that the provision of such 
information will not affect the submission or processing of the 
complaint, why this information is being collected, how it will be 
used, and how it will be maintained by the Commission. We note that the 
Commission's use and disclosure of such information will be subject to 
the applicable System of Records Notice

[[Page 4147]]

(SORN) governing our informal complaints system, which the Commission 
will modify, if necessary, based on this Report and Order.
    121. We disagree with WISPA that providing demographic information 
should be mandatory. We are concerned that requiring this information 
may deter consumers from filing complaints. Because the purpose of our 
changes is to encourage consumers to file informal complaints when they 
believe our rules may have been violated, we find that the potential 
deterrence effect from requiring such information outweighs any 
potential benefit from making the provision of such information 
mandatory.

Pathway for Organizations To Submit Digital Discrimination of Access 
Complaints

    122. We adopt our proposal to establish a clear pathway for 
organizations to submit digital discrimination of access complaints. We 
agree with commenters that allowing community partners and third-party 
organizations to file informal complaints on behalf of consumers 
(individuals or groups of individuals) will enable the Commission to 
better identify substantive complaints and collaborate with state, 
local and Tribal governments when addressing such complaints. We also 
agree with commenters such as the National League of Cities that 
allowing third parties to file on behalf of consumers will improve 
access to our informal complaint process for those with language 
barriers, limited digital skills, and/or limited access to devices or 
connectivity. Improving access to our informal complaint process serves 
both as an important safeguard for marginalized communities and as a 
means of ensuring that our complaint data is complete and accurate.
    123. We disagree with commenters who suggest that third party 
filers should be subject to more burdensome procedural or evidentiary 
standards. We find that the benefits of promoting and enhancing access 
to our informal complaint process far outweigh the limited risks 
outlined by the commenters. We agree with Public Knowledge that one of 
our primary goals is to ``further enable marginalized communities to be 
represented through the complaint process'' and that ``to throw up 
additional barriers would undermine this goal.''
    124. Making Available Anonymized Complaint Data. We adopt our 
proposal to make anonymized or otherwise de-identified complaint data 
available to the public. We direct the Consumer and Governmental 
Affairs Bureau, in coordination with the Wireline Competition Bureau, 
the Office of Economics and Analytics, and the Office of General 
Counsel, to periodically make publicly available anonymized or 
otherwise de-identified digital discrimination of access complaint 
data. The record in this proceeding reflects widespread support for 
this proposal. We agree with commenters that such data would be useful 
to third parties in conducting research, advocacy, and reporting, and 
we find that these data can be released without compromising the 
privacy of individual complainants. We find that public release of 
anonymized or otherwise de-identified data would also promote 
transparency and empower third parties to assist the Commission in 
identifying trends in digital discrimination of access.

Enforcement

    125. We find that effective implementation of section 60506 
requires use of the Commission's traditional enforcement mechanisms to 
fulfill Congress's mandate that the Commission prevent and identify 
necessary steps to eliminate digital discrimination of access. This 
includes the full gamut of the Commission's enforcement toolkit, which 
ranges from letters of inquiry to remedial orders to forfeiture 
proceedings. Alleged or otherwise apparent instances of digital 
discrimination of access will be investigated on a self-initiated 
basis. This approach, which affords the Commission necessary 
flexibility for tackling Congress's directives, will involve data 
gathering via complaints and allegations made through the Commission's 
informal complaint process by state, local, and Tribal officials, and 
via other sources.
    126. As explained above, a policy or practice will violate our 
prohibition on digital discrimination of access if it discriminates, 
either by intent or in effect, based on one of section 60506's listed 
characteristics. In examining policies and practices, the Commission 
will look to whether the policy or practice in question differentially 
affects access to broadband internet access service or is intended to 
do so. If yes, then the Commission will look to whether less 
discriminatory options were available. Thus, the rules we adopt today 
involve a twofold assessment: first, whether a policy or practice is 
discriminatory; and if so, whether there were reasonably available and 
achievable alternatives (i.e., alternatives that were technically and 
economically feasible) that would have been less discriminatory.

Legal Authority

    127. In the NPRM, we sought comment on how the Commission should 
enforce any such rules we might adopt, including by use of our existing 
``enforcement toolkit of letters of inquiry, notice of apparent 
liability, and forfeiture orders.'' We further sought comment on any 
limitations thereon, highlighting a dispute among commenters about the 
legal authority underlying the use of these enforcement mechanisms. We 
conclude that these same tools may be used to enforce the rules we 
adopt today pursuant to section 60506. Implementing the statute's 
directives necessitates use of these tools and processes, which will 
facilitate Congress's and the Commission's goal of facilitating equal 
access by preventing digital discrimination of access and identifying 
means to eliminate such discrimination.
    128. We find that subsection (b)(1) and (e) under section 60506 
provide the Commission express authority to enforce its mandates using 
the Commission's normal suite of enforcement mechanisms. Section 60506 
directs the Commission to adopt final rules to ``prevent[ ] digital 
discrimination of access,'' and to ``identify[ ] necessary steps'' for 
eliminating such discrimination. Use of the words ``prevent'' and 
``eliminate'' is unusual in the context of a federal anti-
discrimination statute. Congress usually adopts a statutory prohibition 
on the types of discrimination it seeks to address, then tasks the 
relevant administrative agency with implementing the prohibition 
through agency rules. As discussed in prior sections of this Order, the 
words ``prevent'' and ``eliminate'' constitute strong medicine and 
represent a broad mandate for the Commission to take the necessary 
measures to fully eradicate digital discrimination of access. Moreover, 
a prohibition without enforcement cannot reasonably be expected to 
affect conduct in a meaningful way. Indeed, various commenters have 
identified the use of existing Commission enforcement mechanisms as 
necessary tools for ensuring compliance with our rules. Others contend 
that without the use of such tools, section 60506 could not function as 
Congress intended. Similarly, there would be little point for Congress 
to direct the Commission to accept complaints of digital discrimination 
of access if we lacked any of our traditional powers to act on them. 
The existing ``public complaints

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process'' serves the agency's general authority to enforce the 
Communications Act, so we interpret the mandate in subsection (e) to 
reflect Congress's intent that the agency enforce digital 
discrimination complaints under the Act's general enforcement 
provisions.
    129. However, some commenters argue that the Commission lacks 
authority, both under the Communications Act and section 60506, to 
enforce any rules prohibiting digital discrimination of access. They 
argue that because Congress did not expressly incorporate section 60506 
into the Communications Act, any remedies or enforcement mechanisms 
found in the Communications Act are unavailable, and section 60506 does 
not authorize the use of such enforcement tools. AT&T, for example, 
argues that Congress's decision to ``keep [s]ection 60506 out of the 
Communications Act and to avoid cross-references between it and Title 
V'' reflects Congress's desire to make enforcement by traditional 
mechanisms unavailable. CTIA similarly observes that unlike other 
provisions of the Infrastructure Act, such as section 60502, Congress 
did not explicitly enable the Commission to ``impose forfeiture 
penalties under [s]ection 503 of the Communications Act'' in section 
60506, rendering those tools unusable.
    130. We disagree with those asserting that section 60506 does not 
authorize the use of the Commission's existing enforcement mechanisms. 
Congress's decision not to incorporate section 60506 into the 
Communications Act does not suggest that it contemplated only voluntary 
compliance with rules designed to ``prevent'' digital discrimination of 
access. Although some commenters argue that Congress implicitly or 
indirectly incorporated section 60506 into the Communications Act, we 
need not rely on such arguments to justify our approach. Rather, we 
agree with commenters asserting that section 60506, standing alone, 
authorizes the Commission to adopt or amend enforcement rules deemed 
necessary to facilitate equal access and prevent digital discrimination 
of access, including the use of the Commission's existing enforcement 
mechanisms.
    131. As discussed above, section 60506 authorizes the Commission to 
incorporate both disparate treatment and disparate impact standards in 
its definition of digital discrimination of access and, consequently, 
to adopt rules prohibiting covered entities from engaging in such 
practices. Contrary to arguments that section 60506 tasks the 
Commission with ``facilitat[ing] equal access'' by way of funding 
providers' deployment efforts, the statute expressly commands the 
Commission to prevent digital discrimination of access. That is, 
Congress tasked the Commission with adopting rules that would curb 
digital discrimination of access before its occurrence. Even had 
Congress tasked the Commission only with implementing a statutory 
prohibition on digital discrimination of access (a mandate that would 
be less broad than the one we were given), the Commission could not do 
so merely through suggestion. We are aware of no instance in which a 
federal anti-discrimination law is without any enforcement mechanism 
whatsoever. Industry fails to explain how ``affirmative-based 
approaches,'' like funding opportunities, would effectively implement 
our mandate to ``prevent'' digital discrimination of access. No 
commenter suggests that the solution to digital discrimination of 
access, as we have defined it, requires directing more funds to the 
entity responsible for such conduct. Indeed, others call such a result 
absurd. Because preventing digital discrimination of access requires 
some kind of ``stick'' in addition to ``carrots,'' it would render much 
of section 60506 a ``nullity'' were the Commission to interpret the 
statute to preclude enforcement of our rules implementing section 
60506.
    132. We find that section 60506 provides the Commission authority 
to enact such rules as are necessary to fulfill its statutory 
obligations--including, for example, amendment or readoption of our 
existing enforcement rules in the specific context of digital 
discrimination of access. Section 60506(b) directs the Commission to 
``adopt final rules to facilitate equal access to broadband internet 
service . . . including . . . preventing digital discrimination of 
access . . . .'' And as we explain above, our enforcement tools are 
indispensable in fulfilling this mandate. Section 60506 therefore 
authorizes the Commission to adopt, readopt, or amend enforcement-
related rules as necessary to accomplish this task.
    133. Finally, we find that section 4(i) of the Communications Act 
provides the Commission ancillary authority to carry out its 
statutorily mandated duties under section 60506, including enforcement 
of a prohibition on digital discrimination of access. Section 4(i) 
provides that ``[t]he Commission may perform any and all acts, make 
such rules and regulations, and issue such orders, . . . as may be 
necessary in the execution of its functions.'' Effective enforcement 
rules are reasonably ancillary to the Commission's statutorily mandated 
responsibility to combat discrimination in providing access to 
broadband service. Arguments to the contrary highlight that section 
60506 does not fall within the scope of the Communications Act and that 
its mandate lacks a limiting principle. But as TechFreedom 
acknowledges, section 4(i) enables the Commission to carry out duties 
conferred by Congress outside those outlined in the Communications Act. 
And as explained above, contrary to claims that use of its ancillary 
authority in this instance would release the Commission `` `from its 
congressional tether' '' or would ``exceed the bounds of its 
statutorily[ ] delineated authority,'' the Commission's establishing 
and enforcement of today's prohibition logically extends from and 
satisfies Congress's mandate of preventing digital discrimination of 
access.
    134. We note that the enforcement measures and final rules that we 
adopt today do not represent all that the Commission can--and must--do 
to combat digital discrimination of access. As noted above, section 
60506(b) directs the Commission to adopt ``final rules'' to: (1) 
prevent digital discrimination of access and (2) identify necessary 
steps for the Commission to take to eliminate such discrimination. We 
interpret Congress's directive with respect to ``eliminating'' digital 
discrimination of access to include steps not taken in our implementing 
rules that might ultimately be necessary to ensure that such 
discrimination does not occur after the effective date of our rules. 
Congress has tasked us to identify any such ``necessary steps'' so they 
can swiftly be undertaken if and when determined to be necessary, and 
so Congress can consider what additional statutory authority, if any, 
might be necessary to allow for full achievement of the equal access 
goal. We believe the rules we adopt today, coupled with the affirmative 
requirements proposed in the Further Notice of Proposed Rulemaking, FCC 
23-100, released November 20, 2023, (Further Notice), represent the 
measures necessary both to ``prevent'' and ``eliminate'' digital 
discrimination of access in the future. As such, we find our actions 
today satisfy the Commission's obligations under section 60506(b)(1) 
and, at a minimum, takes initial steps towards addressing our 
obligations under section 60606(b)(2).
    135. We disagree with those asserting that enforcement of our 
prohibition raises a major-questions-doctrine issue. As explained 
below, the Commission's

[[Page 4149]]

self-initiated investigation process does not reflect a substantial 
overhaul of the Commission's enforcement mission. Nor does taking this 
step, modest in comparison to the concerns raised by some commenters, 
risk fundamentally altering the landscape of the telecommunications 
industry. As employers, covered entities should be familiar with the 
standards and processes for establishing liability under Title VII of 
the Civil Rights Act of 1964, and many of these entities must already 
comply with the nondiscrimination requirements associated with the 
receipt of federal funds. Moreover, the Commission does not find in 
section 60506 an ``elephant[ ] in a mousehole'' as some commenters 
argue. To the contrary, Congress here explicitly called on the 
Commission to prevent and identify necessary steps to eliminate digital 
discrimination of access. It mandated, using clear language, that the 
Commission adopt rules necessary for doing so. Our adoption of a 
prohibition on digital discrimination of access is directly responsive 
to Congress's charge, and our use of the Commission's enforcement 
mechanisms a necessary component of those efforts.
    136. At the same time, we do not agree with some commenters' 
suggestion that section 60506(b)(2) represents a broad grant of 
authority to the Commission to require covered entities to undertake 
remedial measures to eradicate the effects of conduct predating the 
effective date of our rules. While section 60506(b)(2) authorizes the 
Commission to ``identify'' the steps necessary to eliminate the 
discrimination identified in subsection (b)(1), it does not, in our 
view, constitute a clear grant of authority to impose retroactive 
liability on industry participants. Moreover, we note that determining 
when and where digital discrimination of access occurred across the 
country in the past, how to remedy such discrimination, and how to 
assign and allocate the cost of such remediation, would represent 
highly time- and resource-intensive undertakings. We will not presume 
that Congress intended for the Commission to undertake these highly 
complex tasks without clear evidence to that effect. Accordingly, for 
purposes of implementing section 60506(b), we will train our focus on 
preventing--and thus eliminating--digital discrimination of access 
occurring after the effective date of our rules.

Amending Commission Rules

    137. We amend some of our existing enforcement rules today to 
enshrine the processes by which the Commission will undertake 
investigations of claims of digital discrimination of access. These 
include changes to Rule 1.80, which details our forfeiture procedures, 
so that it will now reference the provisions of section 60506 in 
addition to those of the Communications Act and other statutes. Rule 
1.80, which acts as our implementing rule for forfeiture proceedings, 
states that a forfeiture penalty may be assessed against any person 
found to have violated either designated provisions of the 
Communications Act (and rules related thereto); Title 18 of the United 
States Code; or section 6507 of the Middle Class Tax Relief and Job 
Creation Act of 2012, as well as rules, regulations, and orders 
promulgated thereunder. Additionally, Rule 0.111 will now reflect the 
Enforcement Bureau's direction to investigate claims of digital 
discrimination of access and make recommendations as to potential 
violations and penalties. We adopt these amendments pursuant to the 
authority expressly granted to the Commission in section 60506(b).

Enforcement Framework

    138. The Commission will launch investigations into complaints and 
allegations of digital discrimination of access on a self-initiated 
basis and, where the Commission determines a violation has occurred, 
pursue remedies and penalties. Investigations may stem from complaints 
filed through the informal complaint process or information otherwise 
brought to the Commission's attention. As outlined above, the 
Commission will adopt a dedicated pathway for accepting digital 
discrimination of access claims from the public. Additionally, the 
Commission may receive allegations of digital discrimination of access 
from state, local, or Tribal governments. And as proposed in the 
Further Notice, the Commission may in the future obligate covered 
entities to make filings to the Commission as part of their affirmative 
obligations to assist in combating digital discrimination of access,\2\ 
filings that similarly might serve as a basis for investigation. 
Irrespective of the origin of such complaints and information, the 
Commission will--at its discretion--determine whether investigation by 
the agency is warranted and whether further response from the entities 
alleged to have violated our rules will be required. However, we 
recognize that broadband providers and other covered entities may need 
time to review their policies and practices in light of the rules we 
adopt today. Accordingly, we will not initiate any enforcement 
investigation solely concerning conduct that produces differential 
impacts under these rules until at least six months after the effective 
date of the rules.
---------------------------------------------------------------------------

    \2\ Infra para. 179.
---------------------------------------------------------------------------

    139. The Commission will conduct its investigations of digital 
discrimination of access complaints and allegations consistent with 
federal law and in a manner consistent with the processes and 
procedures followed by other federal agencies. Taking this approach 
ensures alignment with civil rights models, as suggested by some 
commenters. In investigating complaints and allegations of digital 
discrimination of access, we adopt the legal standards for proving 
discriminatory treatment and disparate impact set out below and in our 
discussion above of disparate impact and disparate treatment standards 
as they relate to our definition of digital discrimination of access.
    140. Investigating complaints alleging that a policy or practice is 
intended to differentially impact consumers' access to broadband 
internet access service on a prohibited basis. Direct evidence of 
discriminatory intent is rare. For that reason, intentional 
discrimination is typically proven by circumstantial evidence. The two 
legal standards for reviewing circumstantial evidence of intentional 
discrimination are set out in Vill. of Arlington Heights v. Metro. 
Housing Dev. Corp., 429 U.S. 252, 266 (1977) (Arlington Heights) 
(providing the framework for analyzing whether facially neutral 
policies or practices are motivated by discrimination) and McDonnell 
Douglas Corp. v. Green, 411 U.S. 792 (1973) (McDonnell Douglas) 
(providing the framework for allocating proof for claims of disparate 
treatment discrimination). Federal agencies historically have used two 
chief legal frameworks in evaluating whether circumstantial evidence 
supports an inference of discriminatory intent, depending on the nature 
of the alleged discrimination. We will investigate complaints of 
intentional discrimination under these frameworks.
    141. When a facially neutral policy or practice is allegedly 
motivated by discrimination: Arlington Heights standard. The Arlington 
Heights framework applies when an otherwise facially neutral policy or 
practice is allegedly motivated by discrimination. Under this 
framework, as applied in the context of section 60506, the Commission, 
as factfinder, will evaluate a variety of factors that contributed to 
the adoption, use or application of the challenged policy or practice 
in order to determine discriminatory intent. The non-exhaustive list of 
evidentiary factors include: background of the

[[Page 4150]]

challenged policy or practice; sequence of events leading up to the 
challenged policy or practice; departures from normal, procedural 
sequence (how the challenged policy or practice occurred and was 
decided on by decisionmakers); pattern of actions that impose greater 
harm on persons in protected groups (i.e., whether a practice bears 
more heavily on minority or low-income persons); and awareness of the 
greater harm (i.e., whether the harm to members in the protected groups 
was foreseeable to decisionmakers). Where it is determined that the 
policy or practice was intended to discriminate, the agency evaluates 
whether the adoption, use or application of the policy or practice 
would have occurred absent the discrimination. Importantly, evidence of 
statistical disparity, alone, generally will not satisfy this standard. 
In the context of section 60506, this approach would likely be most 
applicable to complaints involving treatment of a large group of 
persons, including but not limited to deployment, upgrade, and large-
scale service matters alleged to have been motivated by prohibited 
discrimination. The Commission will find a violation of the digital 
discrimination of access rules where, upon close evaluation of 
Arlington Heights factors, (1) persons in a protected group were denied 
equal access to broadband internet access services, (2) the challenged 
conduct would not have occurred absent the discrimination, and (3) the 
policy or practice in question is not justified by genuine issues of 
technical or economic feasibility, as outlined above.
    142. When policies or practices are intended to impact persons 
within the protected group differently than similarly situated persons: 
McDonnell Douglas standard. This framework applies when a policy or 
practice is intended to treat similarly situated persons differently 
because of a protected status. It is typically utilized when 
investigating complaints involving a smaller, discrete number of 
complainants and where there are identifiable comparators. In the 
context of our rules implementing section 60506, this framework may be 
utilized for investigating complaints as to selection for benefits, 
special deals, or even qualification for broadband service.
    143. The Commission will investigate three elements under this 
framework: (1) whether there is differential treatment of similarly 
situated persons; This element is shown with evidence that persons are 
within a protected group; they were eligible for service; were treated 
in an adverse manner; and that persons similarly situated, but not in 
the protected group, received better treatment. (2) whether there is a 
legitimate, technical or economic justification for such differential 
treatment; This element will be investigated by the Commission, and any 
explanation must be clear and reasonably specific, and fully support a 
showing that there was a ``legitimate, nondiscriminatory reason for the 
different treatment.'' And, if so, (3) whether the technical or 
economic justification for the differential treatment is actually a 
pretext for prohibited discrimination. Under this element, the 
Commission will investigate whether any reason given for the challenged 
action was pretext for discrimination. Under this element, the 
Commission may weigh whether the reasons given were true; any 
weaknesses, implausibility, inconsistency or contradictions; and if 
action taken was contrary to written policy or practice, or was a post-
hoc fabrication. As to the second element, the Commission will weigh 
all available evidence bearing on whether the challenged policy or 
practice is justified by genuine issues of technical or economic 
feasibility. The Commission will find a violation of the digital 
discrimination of access rules where persons in a protected group were 
treated differently, and (1) there is no legitimate technical or 
economic justification for the difference in treatment, or (2) the 
proffered technical or economic justification is determined to be 
pretext for discrimination.
    144. Investigating allegations that policies and practices 
differentially impact consumers' access to broadband internet access 
service on a prohibited basis. We expect most investigations of 
possible violations of our rules to concern credible allegations that 
specific policies or practices have meaningful discriminatory effects 
and are not justified by genuine issues of technical or economic 
feasibility. We adopt the elements of proof for disparate impact as 
established in Inclusive Communities in a way that comports with 
section 60506 and the Commission's investigatory process. Thus, 
investigations concerning allegations that facially neutral policies or 
practices have discriminatory effects will involve: (1) the 
identification of a policy or practice that is causing a disparate 
impact on a prohibited basis; (2) assessment of whether the policy or 
practice in question is justified by genuine issues of technical or 
economic feasibility; and (3) a determination of whether there were 
reasonably achievable, less discriminatory alternatives. If the 
Commission determines that a covered entity's policy or practice 
differentially affects access to broadband service on a prohibited 
basis and that a less discriminatory alternative was reasonably 
available and achievable, the policy or practice in question will not 
be deemed justified by genuine issues of technical or economic 
feasibility.
    145. Under the first element of our disparate impact analysis, the 
Commission will investigate whether an identified policy or practice of 
the covered entity is causing the discriminatory effect. We will also 
investigate the nature of the disparate impact that is being complained 
about or otherwise brought to our attention. As explained above, we 
will rely on information provided by the covered entity as well as 
specified data sources and, where necessary, statistical analyses to 
assess the extent of the differential impact on access to broadband 
internet access service. The Commission recognizes that any such 
differential impact on broadband access must be caused by a specific 
policy or practice of the entity under investigation.
    146. Under the second element of our disparate impact analysis, the 
Commission will determine whether genuine issues of technical or 
economic feasibility support and give substantial, legitimate 
justification for the policy or practice that is being investigated. 
Third, the Commission will determine whether a less discriminatory 
alternative policy or practice was reasonably available and achievable 
and identify any such alternative policy or practice determined to have 
been reasonably available and achievable. If such an alternative was 
available to the covered entity, the policy or practice causing the 
differential impact will not be deemed justified by genuine issues of 
technical or economic feasibility, and the covered entity will be 
exposed to liability for digital discrimination of access. Under the 
Commission's investigative process, the factual and legal bases for any 
proposed liability determination are set forth in a notice of apparent 
liability and the respondent has an opportunity to respond to that 
notice before any final liability determination is made.
    147. Remedies. Remedying violations of our prohibition on digital 
discrimination of access will depend on the context and extent of the 
violation. This requires that remedies be established on a case-by-case 
basis. To this end, the Commission will bring to bear its full suite of 
available remedies,

[[Page 4151]]

including the possibility of monetary forfeitures.
    148. We adopt a presumption of compliance for policies and 
practices that are in compliance with specific program requirements for 
the Broadband Equity, Access, and Deployment (BEAD) and Universal 
Service Fund (USF) high-cost programs. As noted below, we will consider 
whether other presumptions or safe harbor defenses are warranted going 
forward, including safe harbors or presumptions of compliance for 
policies and practices that comply with other federal broadband 
deployment programs that embody similar equity and nondiscrimination 
principles. These programs exist to remedy current inequities in 
broadband deployment and are consistent with section 60506 and our 
rules adopted today to facilitate equal access to broadband internet 
service. We will also accept a presumption of compliance for future 
broadband funding programs that account for digital discrimination of 
access rules. We decline to expand, however, presumptions or safe 
harbor defenses beyond these funding programs as some commenters urge. 
Although T-Mobile correctly identifies that the Commission must take 
into account issues of technical and economic feasibility, we disagree 
that for section 60506's language to have ``real meaning,'' the 
Commission must establish particular safe harbor defenses at this time. 
The approaches outlined above prove sufficient for protecting the 
rights of industry participants, and we do not expect that the 
Commission's self-initiated approach to investigations will inundate 
industry participants with meritless claims that they must expend 
substantial resources defending against. We also agree with other 
commenters that prematurely establishing a comprehensive list of safe 
harbor defenses may immunize covered entities against legitimate 
complaints or allegations, without commensurate reasons for doing so. 
We do, however, recognize that properly developed safe harbors may 
facilitate regulatory certainty and help focus our enforcement efforts 
in the future. Therefore, the Commission charges the CEDC with 
identifying, evaluating and making recommendations with respect to 
particular safe harbors, rebuttable presumptions or other similar 
bright-line guardrails distinguishing permissible from impermissible 
conduct under the rules we adopt today.
    149. Structured Complaint Process. We decline at this time to adopt 
a structured formal complaint process for claims of digital 
discrimination of access. In the Notice, we sought comment on whether 
the Commission should establish a structured complaint process similar 
to the formal complaint process of section 208 of the Communications 
Act. CTIA argues that the establishment of such a process would burden 
both staff at the Commission and the resources of covered entities. 
However, it is unnecessary for us to opine on these arguments. Instead, 
we agree with Verizon that, currently, the informal complaint process 
satisfies the requirements of section 60506 and provides the necessary 
functionality for the Commission to carry out its duties. Although some 
commenters encourage the Commission to establish a specific formal 
complaint process for digital discrimination of access claims, these 
commenters do not articulate the reasons for its necessity in light of 
the self-initiated investigatory approach the Commission adopts today. 
We do not foreclose the possibility of adopting a structured complaint 
process in the future, however. As the Commission gains experience 
investigating digital discrimination of access complaints, our approach 
may evolve, leading us to revisit this issue in the future.
    150. As noted above, in order effectively to identify and combat 
potential violations of digital discrimination of access, the 
Enforcement Bureau will evaluate information provided to the Commission 
through the dedicated digital discrimination of access informal 
complaint pathway or through communications from state, local, or 
Tribal governments. The Enforcement Bureau, in coordination with the 
Consumer and Governmental Affairs Bureau, will review this information 
on a monthly basis and examine trends and geographic or demographic 
clusters, among other things, in the informal complaint filings to 
determine whether there is possible discrimination of access based on 
income level, race, ethnicity, color, religion, or national origin. 
Relevant evidence pertaining to purported differences in the covered 
elements of service will be especially probative. Where there is 
credible evidence suggesting that persons in a protected group were 
treated differently as the result of a policy or practice, the 
Enforcement Bureau, in its discretion, will use its authority to 
conduct investigations; issue Letters of Inquiry and subpoenas; conduct 
audits; inspect licenses and/or facilities; and collect information. 
Further, the Enforcement Bureau will use the full range of its 
enforcement options to enforce compliance, including the possibility of 
forfeiture penalties.
    151. Voluntary Mediation of Digital Discrimination of Access 
Complaints. As part of the monthly review process referenced in the 
preceding paragraph, Commission staff shall identify particular 
informal complaints that would be suitable candidates for a staff-
mediated resolution process. With regard to such complaints, prior to 
initiation of an Enforcement Bureau investigation, staff from the 
Bureau's Market Disputes Resolution Division (which has no involvement 
in Bureau-initiated investigations) may invite the informal complainant 
and the covered entity identified in the informal complaint to engage 
in a voluntary mediation process overseen by Division staff. If all 
parties are willing to engage in such voluntary mediation, the 
mediation would follow existing Commission procedures as outlined in 
Rule 1.737 insofar as practicable. Any resolution reached through such 
mediation process will be reduced to writing and will be binding only 
on the parties to the mediation. The parties to the mediation may 
agree, if they so choose, to disclose the terms of any resolution to 
the Enforcement Bureau's Investigations and Hearings Division, but will 
not be required to do so. If the parties choose to disclose the terms 
of the resolution to the Investigations and Hearings Division, the 
Enforcement Bureau will consider the terms and scope of the resolution 
in determining whether to initiate an investigation into the matters 
raised in the informal complaint. The Enforcement Bureau will not 
initiate such an investigation until the mediation process has 
concluded. This mediation process represents an alternative means of 
bringing speedy and effective resolution to disputes.
    152. Advisory Opinions. In order to provide greater regulatory 
certainty and assist covered entities seeking to comply with our rules, 
we adopt a process to allow any such covered entity to seek an advisory 
opinion from Commission staff regarding the permissibility of a policy 
or practice affecting broadband access. The Commission adopted such an 
advisory opinion process in 2015 in connection with its open internet 
rules. We find today, as the Commission found in 2015, that an advisory 
opinion process will promote compliance and provide clarity, guidance, 
and predictability regarding our rules.
    153. Under the process we adopt today, any covered entity may 
request an advisory opinion regarding the permissibility of its own 
policies and practices affecting access to broadband

[[Page 4152]]

internet access service. As noted in our rules, requests for an 
advisory opinion may be filed via the Commission's website or with the 
Office of the Secretary. Requests must be copied to the Chief of the 
Enforcement Bureau and the Chief of the Investigations and Hearings 
Division of the Enforcement Bureau. The Commission hereby delegates to 
the Enforcement Bureau the authority to receive such requests and issue 
such advisory opinions, and we direct the Enforcement Bureau to 
coordinate closely with other Bureaus and Offices regarding such 
advisory opinions. The Enforcement Bureau will have discretion to 
determine whether to issue an advisory opinion in response to a 
particular request or group of requests and will inform each requesting 
entity, in writing, whether the Bureau plans to issue an advisory 
opinion regarding the matter in question. The Enforcement Bureau shall 
decline to issue an advisory opinion if the relevant policy or practice 
is the subject of a pending government investigation or proceeding.
    154. Covered entities may submit requests for advisory opinions 
regarding both current and prospective policies and practices affecting 
broadband access. However, a request must pertain to a policy or 
practice that the requesting party is currently utilizing or intends to 
utilize, rather than a mere possible or hypothetical scenario. And as a 
general matter, the Enforcement Bureau will prioritize responses 
regarding prospective policies and practices intended to ensure 
compliance with our rules. The Enforcement Bureau will also prioritize 
requests involving substantial questions with no clear Commission 
precedent and/or subject matter involving significant public interest.
    155. When submitting requests, covered entities must include all 
material information such that Commission staff can make a fully 
informed determination on the matter. Requesting parties will also be 
required to certify that factual representations made to the 
Enforcement Bureau are truthful, accurate, and do not contain material 
omissions. The Enforcement Bureau will have discretion to request 
additional information from the requesting entity and from other 
parties that might have relevant information or be impacted by the 
request. These might include, for example, impacted consumers or state, 
local, or Tribal governments.
    156. Our advisory opinion process will affect covered entities and 
the Commission's enforcement actions as described below. First, the 
process is fully voluntary. No covered entity will be rewarded or 
penalized for seeking an advisory opinion, and the seeking (or not) of 
an advisory opinion will not itself influence any enforcement-related 
decision by the Commission. Second, in an advisory opinion, the 
Enforcement Bureau will issue a determination of whether or not the 
policy or practice detailed in the request complies with our rules 
implementing section 60506. If the Bureau determines that a policy or 
practice currently in effect violates our rules, it may provide in the 
opinion that it will not take enforcement action within a designated 
time period if the policy or practice is promptly corrected. Third, a 
requesting party may rely on an advisory opinion to the extent that its 
request fully and accurately describes all material facts and 
circumstances. Fourth, advisory opinions will be issued without 
prejudice to the Enforcement Bureau's or the Commission's ability to 
reconsider the questions involved, and rescind the opinion. Because 
advisory opinions would be issued by the Enforcement Bureau, they would 
also be issued without prejudice to the Commission's right to later 
rescind or revoke the findings. Should the Enforcement Bureau or 
Commission rescind a previously-issued advisory opinion, the requesting 
party must promptly discontinue use of the relevant policy or practice 
in order to remain in compliance with our rules.
    157. The Enforcement Bureau will attempt to respond to requests for 
advisory opinions as efficiently as possible. We decline to establish 
firm deadlines, however, because we anticipate that the nature, 
complexity, and magnitude of requests might vary widely. Furthermore, 
it may take time for Commission staff to request any additional 
information needed to issue an opinion. Once issued, the Enforcement 
Bureau will make the advisory opinion available to the public. And to 
provide further guidance to industry and consumers, the Bureau will 
also release the initial request and any additional materials deemed 
necessary to contextualize the opinion. Entities may request 
confidential treatment of certain information, as provided under 
Commission rules.
    158. Special Advisor for Equal Broadband Access. As a further 
measure to provide assistance to stakeholders regarding the rules and 
new procedures we adopt today, the Commission shall designate a Special 
Advisor for Equal Broadband Access within the Wireline Competition 
Bureau to provide neutral technical assistance to all stakeholders. The 
Special Advisor will provide consumers and their representatives 
assistance with: understanding the scope and substance of the rules; 
understanding the process for filing consumer complaints of digital 
discrimination of access; understanding what information may best 
assist the agency in fully assessing such complaints; identifying 
Commission resources that might be helpful to consumers in determining 
when digital discrimination of access might have occurred and how it 
can be challenged; addressing questions regarding the voluntary 
mediation of digital discrimination of access complaints; addressing 
questions regarding the advisory opinion process outlined above; and 
interfacing with various Commission components regarding access to 
broadband internet access service. The Special Advisor will likewise 
provide industry participants and their representatives assistance 
with: understanding the scope and substances of the rules; 
understanding the process for responding to complaints of digital 
discrimination of access; understanding what information may best 
assist the agency in fully assessing such responses; identifying 
Commission resources that might be helpful to industry participants in 
complying with the rules we adopt today; questions regarding the 
voluntary mediation of digital discrimination of access complaints; 
questions regarding seeking advisory opinions regarding policies or 
practices affecting access to broadband internet access service; and 
interfacing with various Commission components regarding access to 
broadband internet access service. The Special Advisor may be 
designated other responsibilities associated with the digital 
discrimination of access rules we adopt today and other matters 
relating to our efforts to ensure equal access to broadband internet 
access service.
    159. State and Local Enforcement and Private Rights of Action. We 
decline at this time to authorize state and local enforcement of our 
rules, as some commenters urge. As explained above, the Commission is 
taking a self-initiated approach to investigations of digital 
discrimination of access. By doing so, the Commission can best 
establish the contours of what constitutes a violation of our 
prohibition in a consistent manner. We also decline at this time to 
create a private right of action, as we asked about in the NPRM, and 
thus find it unnecessary to opine at this time about our authority to 
do so.

Differential Impact

    160. We find that in determining when consumers' access to 
broadband internet service is ``differentially

[[Page 4153]]

impacted,'' whether intentionally or not, we must account for all 
comparable elements of service quality, terms and conditions. 
Consistent with our discussion above regarding the elements of service 
covered by our rules, we may compare service availability, service 
quality, and the terms and conditions of service as between different 
geographic areas and communities to determine whether digital 
discrimination of access has occurred. This may include all technical 
and non-technical aspects of service in a given area. We similarly 
provide ourselves the flexibility to consider any comparable geographic 
region that may be relevant to an alleged claim of digital 
discrimination of access. Finally, the data we use to determine when a 
policy or practice differentially impacts consumers' access to 
broadband service will encompass data both from within the Commission 
and from any outside sources that we consider relevant to evaluating 
the issues at hand. Contrary to the concerns expressed by some 
commenters, we do not expect that our digital discrimination of access 
rules will require covered entities to collect any new data from their 
customers in order to determine the differential impacts of their 
policies and practices. Covered entities should be able to make those 
determinations based solely on data from the U.S. Census Bureau.
    161. We find this scope of inquiry necessary to meet section 
60506's equal access goals. First, we agree with commenters that we 
must have a flexible and non-exhaustive approach to comparing broadband 
internet access service, as quality standards and the criteria to 
measure quality will change over time. Second, adopting a comprehensive 
approach is necessary to meet section 60506's aims regarding equal 
access because ``a series of terms and conditions may have [cumulative 
effects on access] even when each may be only slightly onerous on its 
own.'' In other words, failing to have such a flexible approach could 
lead to our digital discrimination of access rules undermining 
Congress's intent for enacting section 60506 by ``exacerbat[ing] 
digital discrimination [of access] rather than eliminating it.'' 
Finally, as the record reflects that digital discrimination of access 
requires assessing a myriad fact patterns, including various 
technological and non-technological aspects of broadband service, the 
unique challenges that covered entities face to deploy to certain 
areas, and that broadband use may vary within local communities, we 
must adopt a scope of comparability that can holistically assess each 
claim. This analytical approach is consistent with the goal to ensure 
that ``all people'' benefit from broadband, including those in 
historically disadvantaged, Tribal, and rural communities. Our 
assessment of whether an ``offered service'' is of comparable quality 
to that available to other communities will turn on the capabilities of 
the service rather than the particular technology through which the 
service is offered. We will focus our analysis on whether the consumer 
has the equal opportunity to obtain and utilize broadband internet 
access service of comparable quality on comparable terms and 
conditions. In this regard, we are mindful that ``comparable'' does not 
mean ``identical.''
    162. Our approach to comparability is consistent with established 
civil rights law. As explained, we will require that covered entities' 
policies and practices cause the identified disparities, consistent 
with the reasoning of Inclusive Communities. We disagree with T-Mobile 
that the ``robust causality requirement simply is not workable in the 
broadband context[,]'' as our flexible approach will allow to consider 
the factors that go into a provider's investment decisions. As these 
matters are so fact-driven, our inquiry will also be on a case-by-case 
basis, consistent both with longstanding precedent in civil rights law 
and our approach to determining feasibility.
    163. We disagree with commenters asserting that a determination of 
digital discrimination of access need not require the ``robust 
causality'' outlined in Inclusive Communities. Some commenters argue 
that we should require only a showing of statistical disparity without 
any evidence that the challenged policies or practices caused the 
disparity. We disagree. Instead, we agree with those commenters 
asserting, consistent with Inclusive Communities, that sound disparate 
impact analysis requires a determination that the challenged policies 
and practices are a contributing cause of the identified differential 
in access.

Comparing Technical Terms of Service

    164. We find that our flexible approach to comparability has 
several advantages when comparing the technical aspects of broadband. 
First, this approach is consistent with our definition of covered 
aspects of service. Second, this flexible approach will allow us to 
account for the ``technical realities of provisioning'' broadband when 
comparing technological aspects of services, such as network 
degradation and upgrades, by encompassing variables that can explain 
why network performance may be better or worse during certain periods. 
Third, it will also provide for comparing technical aspects of service 
that are present in certain technologies and not others, such as 
wireless service. Finally, this approach will allow our comparability 
analysis to adapt as technological preferences change over time and 
account for substitutability.
    165. The record in this proceeding regarding the 
``substitutability'' (and therefore comparability) of broadband service 
provided through different technologies is mixed. While some commenters 
argue that the Commission's focus should be on whether the services are 
comparable in practical terms because section 60506 is ``technology 
neutral,'' Public Knowledge cautions that ``there are likely to be 
significant technical variations between different technologies (e.g., 
wireline vs wireless), such that the default assumption should be that 
even with stated similarities a service that employs different 
technology is not comparable.'' Commenters also disagree on how 
substitutability should be considered with regard to emerging 
technologies, as some argue that service provided over fiber lacks a 
substitute and others suggest the opposite. The range of views on the 
record counsels that the Commission should take an approach to 
comparing technical aspects of service that can accommodate the unique 
considerations of each alleged instance of digital discrimination of 
access. The holistic and flexible approach to comparability and 
substitutability we describe today is consistent with that aim.
    166. We decline to establish at this time a prescriptive range or 
standard for comparing technical aspects of service. We are not 
persuaded by commenters who suggest that we must take a prescriptive 
approach to comparing technical aspects of service because greater 
certainty is necessary to promote deployment. There are simply too many 
potentially relevant technical variables to each claim to suggest that 
a prescriptive approach could be practically administered or complied 
with. We agree with commenters that the varying technologies and 
services used to deliver broadband ``have different natures and 
capabilities and should thus be evaluated independently using relevant 
performance metrics.'' Indeed, the court in Orloff itself pointed out 
that wireless carriers, even in a competitive market, still ``cannot 
`decline to serve any particular demographic group (e.g., customers who 
are of a certain race or income bracket).' '' The ability of wireless

[[Page 4154]]

carriers generally to provide sales concessions to some customers and 
not others without being held to have engaged in ``unjust and 
unreasonable discrimination'' within the meaning of sections 201 and 
202 of the Communications Act does not mean that broadband providers 
may discriminate between customers on the basis of the characteristics 
protected by section 60506. Adding to this complexity, we acknowledge 
commenters' perspective that, while service interruptions may 
occasionally occur due to events such as network outages or network 
maintenance, significant or ``chronic'' network outages are red flags 
for possible digital discrimination of access. Our flexible approach 
will provide for these considerations while avoiding a situation where 
our technical comparability analysis becomes outdated, the range or 
scope of comparability becomes too broad or narrow, or our analysis is 
otherwise ill-suited for the service, service elements, or service 
terms being compared. We similarly disagree with commenters who assert 
that standards are necessary to ensure that our rules adequately 
protect consumers, as our flexible approach does so by ``future 
proofing'' our rules as standards change over time.
    167. We decline to require network performance testing at this 
time. As the record is mixed on the issue and such testing is not 
necessary to accomplish our immediate objectives, we find that adopting 
a network testing requirement at this time would be premature. While 
Public Knowledge argues we should adopt network testing requirements 
similar to those in the universal service context, USTelecom opposes 
network testing because it is ``unjustified as a matter of law, 
unnecessary, and unduly burdensome.''

Comparing Non-Technical Terms of Service

    168. We find that our flexible approach to comparability likewise 
has several advantages for comparing non-technical elements of 
broadband service. First, this approach is consistent with the 
inclusive scope of our definition of covered elements of service. 
Second, this flexible approach allows us to assess holistically whether 
and how non-technical aspects of service may vary based on protected 
status. Third, allowing comparison of a broad range of services, 
service elements, and terms of service allows the Commission to 
evaluate non-technical terms of service across covered entities.
    169. We decline to establish a prescriptive standard to compare 
non-technical aspects of service. Commenters suggest that the 
Commission should provide different comparability standards when 
comparing non-technical aspects of service offered by the same covered 
entity and non-technical aspects of service offered by different 
covered entities. Commenters also suggest that for services offered by 
the same covered entity, we should establish that all customer groups 
in the same area must have the opportunity to receive the same service 
on the same terms and conditions. Adopting this assumption, however, 
would not give proper weight to the feasibility analysis we adopt for 
claims of digital discrimination of access. We agree that ``comparing 
across providers on non-technical factors is considerably more 
challenging'' because ``there are compelling competition reasons for 
different providers to have different terms of service or approaches to 
customer service.'' Nevertheless, our more flexible approach of 
considering all available information will allow the Commission to 
determine whether non-technical aspects of service across different 
covered entities in certain circumstances will provide useful evidence 
of reasonably available alternative practices.

Geographic Comparability

    170. Section 60506(a)(2) defines ``equal access'' as the equal 
opportunity to subscribe to an offered service of comparable service 
``in a given area . . . .'' Thus, when determining whether challenged 
policies and practices differentially impact access to broadband based 
on the listed characteristics, to the greatest extent possible, we must 
compare the service quality and terms and conditions of service in 
defined geographic areas that are appropriate and reasonably comparable 
in all respects other than the demographic characteristic(s) giving 
rise to the digital discrimination of access claim.
    171. We find that we must adopt a broad and flexible approach to 
assess geographic comparability in this context. This is consistent 
with our approach to comparing technical and non-technical aspects of 
service. And, as Congress did not define ``a given area'' in section 
60506(a)(2) nor anywhere else in the statute, we agree with commenters 
that we should determine the appropriate ``given area'' for an alleged 
instance of digital discrimination of access on a case-by-case basis. 
The record reflects a variety of suggestions and relevant 
considerations for determining an appropriate geographic area for 
comparison of service quality and terms, providing that a flexible, 
case-by-case approach is both necessary and appropriate. First, 
commenters suggested a variety of geographic areas may be appropriate 
depending on the context, including the Nation as a whole, states, 
counties, metropolitan statistical areas, and census blocks, among 
others. Second, the record reflects that there are a variety of factors 
to consider to determine what area is appropriate to analyze a digital 
discrimination of access claim. For example, with respect to covered 
entities in particular, the record reflects that the geographic area 
that is appropriate may differ depending on the type of covered entity, 
such as a cable operator operating under a franchise agreement or an 
ILEC operating under a license area; the covered entity's size; or the 
type of broadband technology used to provide the service, such as fiber 
to the home or fixed wireless service. Third, though we find that we 
should compare similar geographic areas to assess claims of digital 
discrimination of access, the record also includes a variety of 
suggestions on how we should determine what the relevant geographic 
area is. For example, commenters suggest that we consider five factors 
to determine the correct area, while others generally suggest we use 
relevant geographic comparators, such as how close areas are to each 
other, changes in terrain, the cost of deployment, and whether the 
given area is rural or urban. As such, we will evaluate each claim 
holistically and determine what ``given area'' is appropriate based on 
the facts presented. Finally, our flexible, case-by-case approach to 
determining geographic comparability is consistent with our approach to 
determining feasibility. In both determinations, we adopt a flexible 
approach to account for the challenges of providing service to 
particular geographic areas, such as topography, population density, 
and other potential technical and economic barriers to providing 
broadband service.
    172. We agree with Verizon that those filing digital discrimination 
of access complaints should, if possible, identify the given area where 
the alleged digital discrimination of access occurs. But given that 
many informal complaints may be filed by members of the public based on 
their own experiences with broadband access and have little or no 
information as to how widely their experiences might be shared by 
others, we will not require precision in this regard. If the informal 
complaint gives

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the Commission enough information to determine the nature of the 
alleged violation and where the alleged violation occurred, that may be 
sufficient for the Commission to determine whether further inquiry is 
warranted. Moreover, we will not, as some have suggested, limit our 
investigations to the four corners of the informal complaint, examining 
only the policies and practices and the geographic areas identified 
therein. Rather, the informal complaint will be used as a starting 
point, a basis for determining whether to seek further information from 
the complainant, require a response from the covered entity involved, 
determine whether there are similar complaints forming a pattern, or 
take some other appropriate action. We understand that many of the 
comments suggesting that we apply strict ``pleading'' standards to 
complaints of digital discrimination of access are premised on the 
assumption (or possibility) that the Commission would adopt a formal 
complaint process akin to section 208 of the Communications Act and our 
rules implementing that section. As we have elected not to adopt such a 
formal complaint procedure at this time, we will provide maximum 
flexibility to persons filing informal complaints and will review such 
informal complaints as liberally and generously as possible to achieve 
the purposes of the statute as expeditiously as possible.

Data To Analyze Differential Impact

    173. We will avail ourselves of all relevant Commission and 
external data collections to help us evaluate when access to broadband 
has been differentially impacted based on a protected characteristic. 
As in the record compiled in response to the Notice of Inquiry, 
commenters to the NPRM highlighted various studies and provided a 
robust debate as to whether the studies were well grounded and whether 
they agreed with their conclusions. For example, though some commenters 
continue to argue that certain studies remain convincing examples of 
digital discrimination of access, others argue that they downplay or 
ignore important facts or have been successfully rebutted. Commenters 
also cite a variety of other studies or sources of data as evidence 
that may help demonstrate or refute that digital discrimination of 
access actually exists. As the record is mixed and does not 
conclusively indicate that some sources of data are more robust or 
helpful than others, we will evaluate all data relevant to a claim of 
digital discrimination of access on a case-by-case basis, including all 
Commission and external data sources and studies. Moreover, as to the 
existence (or not) of digital discrimination of access, we simply note 
that Congress directed the Commission to adopt rules on a short 
deadline to ``prevent'' and identify steps to ``eliminate'' digital 
discrimination of access. Arguments that such discrimination does not 
occur or does not exist should have been directed to Congress. The 
Commission's charge is to execute on the mandate we were given by 
Congress, and we intend to do that.
    174. With particular respect to Commission data collections, the 
record reflects there could be many productive ways for us to use them 
both individually and in conjunction with other sources of data. 
Commenters suggest, for example, that we could analyze data from 
Commission broadband maps, broadband consumer labels, the Affordable 
Connectivity Program, the Lifeline program, or the Consumer Complaint 
Center to identify possible violations of our rules, identify possible 
subjects of investigation, or highlight existing disparities in 
deployment. Commission data collections coupled with data collected 
outside the Commission could also provide helpful insight. For example, 
comments advise that cross referencing and overlaying various data 
sets, using state broadband maps or Census Bureau information in 
conjunction with Commission maps, or comparing information submitted to 
the Commission, state, or local agencies with information a covered 
entity publishes regarding their service, could also help the 
Commission assess digital discrimination of access claims.
    175. The Commission may also require new data collection in the 
future that could be helpful to analyzing comparability. As explained 
in the accompanying Further Notice, we propose to make new data 
available through an annual supplement to the BDC. Our proposed annual 
supplement would report (on a state-by-state basis) all major 
deployment, upgrade and maintenance projects completed or substantially 
completed in the preceding calendar year, including the nature and size 
of the project and identification of the communities served by the 
project, and could be useful to our comparability analysis if adopted. 
We also propose requiring covered entities to implement internal 
compliance programs that would require covered entities to identify the 
communities served by recently completed, pending and planned major 
projects, conduct comparability analysis, and identify whether relevant 
policies and practices are differentially impacting consumers' access 
to broadband. This would require covered entities to conduct project 
evaluations, analyze their policies and practices, and conduct other 
internal monitoring and auditing that could help remove ``invisible'' 
impediments to equal broadband access.
    176. We decline at this time to modify current Commission data 
collections or undertake new data collections. Various commenters 
suggest that we modify Commission data collections to aid our analysis 
of possible digital discrimination of access, such as by undertaking a 
new data collection under the Affordable Connectivity Program to allow 
for disaggregation of program participants by demographic group, or 
modifying broadband maps so consumers could more easily determine if 
they have ``comparable'' broadband service at their street address. 
Commenters also suggest we should collect new data to compare 
advertised and charged pricing. Since the Commission currently has at 
its disposal a number of data collections and potential data sources 
that may assist in our analysis of digital discrimination of access 
claims, it is unclear whether a new data collection's burdens would 
outweigh its potential benefits. As we gain greater experience 
investigating digital discrimination of access claims, we will evaluate 
the adequacy of current data collections and other data sources and 
will determine whether new data collections or modifications of 
existing data collections might be warranted. We note that commenters 
disagree as to the authority that broadband consumer labels provide for 
imposing a new BDC.

Other Issues

    177. At this time, we decline to take action in the other policy 
areas identified in the record where there is possible intersection 
with the issues we address in this proceeding. In the NPRM, we invited 
comment on various record proposals, including potential action in 
different Commission proceedings, which could potentially help the 
Commission fulfill our statutory mandate. We received numerous 
proposals that address action we can take on Tribal lands, possible 
outreach efforts, and organizational changes we should make to promote 
our efforts to combat digital discrimination of access. In addition, 
commenters suggested further action related to broadband service in 
multiple tenant environments (MTEs), spectrum availability, spectrum 
policy, the Affordable Connectivity Program, other Commission funding 
programs, the

[[Page 4156]]

Commission's broadband speed benchmark, the BDC maps, and various 
suggestions that commenters argue would aid infrastructure deployment, 
such as revising the Commission's rules for small wireless facilities, 
pole attachments, section 214 discontinuances, and cable franchising, 
and addressing other local and federal regulatory barriers. The 
Commission's primary focus at this time is to implement effective rules 
to address digital discrimination of access within the deadline set by 
Congress. However, we will continue to consider the thoughtful 
proposals on the record that are not addressed in other sections of 
this Report and Order or in the Further Notice. Our decision to refrain 
from taking further steps today in those proposals does not reflect any 
policy or legal conclusions regarding these matters. Some commenters, 
in addition to advocating for the Commission to expand upon the listed 
characteristics Congress included in section 60506(b), ask that the 
Commission more broadly address concerns over exposure to 
radiofrequency energy. This topic is outside the scope of the current 
proceeding, and we refer commenters to the Commission's website for 
more information.
    178. Although we are not adopting any other record proposals at 
this time, we note that states and localities can rely on several 
resources made available to them to address digital equity, such as the 
Infrastructure Act's broadband funding for states, the National 
Broadband Map, and the Broadband Funding Map. First, we recommend that 
states and localities tap in fully to the funding allocated to states 
and localities to address broadband equity. On June 26, 2023, NTIA 
announced how it allocated funding to all 50 states, the District of 
Columbia, and five U.S. territories to deploy affordable, reliable 
high-speed internet service to everyone in America. States and other 
jurisdictions will use funding from the Infrastructure Act's $42.45 
billion Broadband Equity, Access, and Deployment (BEAD) program to 
administer grant programs within their borders. The BEAD funding will 
be used to deploy or upgrade broadband networks to ensure that everyone 
has access to reliable, affordable, high-speed internet service. Once 
deployment goals are met, any remaining funding can be used to pursue 
eligible access-, adoption-, and equity-related uses. We strongly 
encourage states and other jurisdictions to make full use of the 
available BEAD funding in order to expand broadband access in hard-to-
build areas, increase broadband affordability, and strengthen digital 
literacy within their respective borders. While these issues are 
distinct from digital discrimination of access as we have defined it, 
full utilization of BEAD funding might reduce the instances in which 
consumers believe they are experiencing digital discrimination of 
access and thus reduce the burdens on industry participants and the 
Commission in addressing digital discrimination of access claims.
    179. Second, in addition to the CEDC recommendations discussed 
below, we recommend that states and localities utilize the National 
Broadband Map to identify unserved and underserved communities. We 
find, based on the record, that states and localities could benefit 
from available resources to help them identify unserved and underserved 
communities and develop solutions to address digital discrimination of 
access. The National Broadband Map displays where broadband internet 
services are and are not available across the country. The map is one 
step in an ongoing, iterative process that will involve the submission 
of data by providers, challenges from third parties and the public, and 
verifications and audits by the Commission. The maps produced through 
this process will continually improve and refine the broadband 
availability data relied upon by the Commission, other government 
agencies, and the public, as required by the Broadband DATA Act. An 
accurate map will help identify the unserved and underserved 
communities most in need of expanded access to broadband internet 
access service.
    180. Third, we recommend that states and localities use the 
Broadband Funding Map to gain insight into the broadband infrastructure 
deployment projects funded by the Federal government throughout the 
United States and Territories. The Broadband Funding Map overlays the 
availability data reported on the National Broadband Map with the 
funding data to show locations receiving federal program support. 
Finally, we decline at this time to establish an Office of Civil Rights 
within the Commission, as several commenters have urged us to do. We 
recognize the potential benefits of establishing such an office, 
however, and therefore seek further focused comment in a Further 
Notice.

State and Local Model Policies and Best Practices

    181. As proposed in the NPRM, we 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). Section 60506(d) of the Infrastructure Act 
directs 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, in December 2021, 
Chairwoman Rosenworcel tasked the CEDC with issuing recommendations on 
the subjects specified in section 60506(d). In furtherance of that 
mission, the CEDC ``took the lead in facilitating interviews, public 
events, and town hall meetings with multiple stakeholders, from 
community leaders to industry experts, state broadband directors, 
foundations, school district leaders, HBCUs, faith-based organizations, 
small-, minority-, and women-business owners, concerned citizens, and 
representatives of historically marginalized groups.'' The CEDC members 
``actively sought out the perspectives of the aforementioned groups and 
listened attentively to their experiences, challenges and 
aspirations.'' More specifically, the CEDC's Digital Empowerment and 
Inclusion (DEI) Working Group issued a report (the CEDC 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 of 
adopting the report for submission to the Commission. We now adopt both 
sets of recommendations as guidelines for states and localities, in 
fulfillment of section 60506(d), while emphasizing that our action does 
not limit states and localities from taking additional steps to prevent 
and eliminate digital discrimination of access beyond those set forth 
in the CEDC report and adopted in this Report and Order.
    182. As we explained in the NPRM, the six CEDC recommendations in 
its report ``Model Policies and Best Practices to Prevent Digital 
Discrimination by ISPs'' reflect the perspective of the industry, 
public interest stakeholders, local government representatives, and 
others. We conclude that adopting these consensus recommendations will 
be effective in addressing digital discrimination of access at the 
state and local level. Additionally, the thirteen recommendations in 
the report's ``Best Practices to Advance Digital Equity for

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State and Localities'' reflect the consensus of industry and public 
interest stakeholders, and we find that they can serve as an effective 
framework for states and localities to advance digital equity.
    183. We strongly encourage states and localities to implement these 
recommendations as a starting point, as we find that they can serve as 
an effective framework to advance digital equity. The record reflects 
widespread support for adopting both sets of recommendations. We agree 
with the Texas Coalition of Cities that the CEDC report's ``Best 
Practices to Advance Digital Equity for State and Localities'' 
recommendations appropriately focus on broadband and device programs, 
disseminate information and increase participation in federal broadband 
affordability programs, integrate existing social service supports with 
broadband services and create digital navigator programs where 
feasible. And as the U.S. Chamber of Commerce highlights, states and 
localities can adopt these model policies and practices at their 
discretion. Local Governments cautioned that while we should adopt the 
CEDC Report recommendations, we should also recognize the potential 
limits of states and local authorities to adopt those policies, in-part 
due to a lack of resources. While states and localities may still face 
potential limitations in implementing these recommendations, we 
envision that the aforementioned funding will be a good starting point 
for jurisdictions to begin taking the necessary steps to prevent and 
eliminate digital discrimination of access. Lastly, as noted by 
USTelecom, our approach affords us the opportunity to study the effects 
of implementation of those best practices by states and localities and 
determine whether further action on this front is warranted. We 
acknowledge that some states and localities may currently lack the 
necessary resources or authority to adopt and implement the CEDC report 
recommendations, but we note that the recommendations can be adopted 
and implemented at any time at the discretion of the governmental 
entity involved, such as when additional authority is provided or when 
additional resources are made available.
    184. We disagree with arguments submitted by several commenters 
that we should refrain from adopting the recommendations in the CEDC 
report at this time in part due to the limited representation of local 
and state officials in the CEDC. We note that the CEDC's working group 
members did include some state and local representation and its Report 
was unanimously adopted. In addition, the CEDC members were diligent in 
their research, and they interviewed several local and state officials 
to develop their recommendations. The members conducted more than 30 
virtual interviews and relied upon data and research by scholars, 
organizations, and state and local governments that have driven digital 
equity and inclusion scholarship. The members also analyzed research 
publications and other publicly available documents issued by a variety 
of government agencies, academics and think tanks, and advocacy 
organizations to help inform their development of best practices and 
model policies to prevent digital discrimination and to promote digital 
equity. Among other sources, members reviewed federal guidance programs 
and broadband adoption initiatives, including partnerships between 
state and local governments and internet service providers in response 
to the pandemic. While we understand the concerns with the limited 
representation from state and local governments, we find unpersuasive 
assertions from some commenters that the recommendations from the CEDC 
report therefore should not be adopted on this basis. The methodology 
used to develop both sets of recommendations took into consideration 
the input and expertise from states and localities to better understand 
their experiences and lessons learned so that other jurisdictions might 
adopt and implement their successful strategies and methodologies and 
avoid their mistakes. We encourage state and local officials 
responsible for broadband expansion efforts to monitor the proceeding 
and engage with the rechartered CEDC.

Procedural Matters

    185. Regulatory Flexibility Act. The Regulatory Flexibility Act of 
1980, as amended (RFA), requires that an agency prepare a regulatory 
flexibility analysis for notice and comment rulemakings, unless the 
agency certifies that ``the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small 
entities.'' Accordingly, we have prepared a Final Regulatory 
Flexibility Analysis (FRFA) concerning the possible impact of the rule 
changes contained in this Report and Order.
    186. Paperwork Reduction Act. This document contains new or 
modified information collection requirements subject to the Paperwork 
Reduction Act of 1995 (PRA), Public Law 104-13. All such new or 
modified information collection requirements will be submitted to the 
Office of Management and Budget (OMB) for review under section 3507(d) 
of the PRA. OMB, the general public, and other Federal agencies will be 
invited to comment on the new or modified information collection 
requirements contained in this proceeding. In addition, we note that 
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 
107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific 
comment on how the Commission might further reduce the information 
collection burden for small business concerns with fewer than 25 
employees. In this document, we describe several steps we have taken to 
minimize the information collection burdens on small entities.
    187. Congressional Review Act. The Commission has determined, and 
the Administrator of the Office of Information and Regulatory Affairs, 
Office of Management and Budget, concurs, that this rule is major under 
the Congressional Review Act, 5 U.S.C. 804(2). The Commission will send 
a copy of this Report and Order to Congress and the Government 
Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).
    188. Contact Person. For additional information on this proceeding, 
contact the Wireline Competition Bureau at [email protected].

Ordering Clauses

    189. Accordingly, it is ordered, pursuant to sections 1, 2, 4(i) 
and (j), 303(r) of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 152, 154(i)-(j), 303(r), and section 60506 of the 
Infrastructure Investment and Jobs Act, Public Law 117-58, 135 Stat. 
429, 1245-46 (2021), codified at 47 U.S.C. 1754, that this Report and 
Order is adopted and parts 0, 1, and 16 of the Commission's Rules, 47 
CFR parts 0, 1, and 16 are amended as set forth in Appendix A. The 
Report and Order shall become effective 60 days after publication in 
the Federal Register, except that the amendments to 47 CFR 1.717, as 
amended in Appendix A, will not become effective until the Office of 
Management and Budget completes review of any information collection 
requirements in this Report and Order that the Wireline Competition 
Bureau determines is required under the Paperwork Reduction Act. The 
Commission directs the Wireline Competition Bureau to announce the 
effective date for 47 CFR 1.717 by subsequent Public Notice.
    190. It is further ordered that the Commission's Office of the 
Secretary shall send a copy of this Report and Order, including the 
Final Regulatory

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Flexibility Analysis, to the Chief Counsel for Advocacy of the Small 
Business Administration.
    191. It is further ordered that the Office of the Managing 
Director, Performance Program Management, shall send a copy of this 
Report and Order in a report to be sent to Congress and the Government 
Accountability Office pursuant to the Congressional Review Act, 5 
U.S.C. 801(a)(1)(A).

Final Regulatory Flexibility Analysis

Need for, and Objectives of, the ``Second Report and Order''
    192. The Report and Order takes an important step to promote equal 
access to broadband for all people in the United States by adopting 
rules pursuant to section 60506 of the Infrastructure Investment and 
Jobs Act (Infrastructure Act) that establish a balanced framework to 
facilitate equal access to broadband internet service by preventing 
digital discrimination of access. Many households in the United States 
lack equal access to broadband, with disparities that cross income, 
demographic, and geographic lines, including rural and tribal areas. 
Among households with broadband access, mid-sized communities, urban, 
and rural areas are all impacted by inferior service offerings. The 
Report and Order establishes that a policy or practice will violate the 
Commission's prohibition on digital discrimination of access if it 
discriminates based on one of section 60506's listed characteristics 
(either by intent or in effect), and creates a process to report 
incidents of digital discrimination and determine whether a violation 
has occurred.
    193. First, the Report and Order defines ``digital discrimination 
of access'' as ``Policies or practices, not justified by genuine issues 
of technical or economic feasibility, that (1) differentially impact 
consumers' access to broadband internet access service based on their 
income level, race, ethnicity, color, religion or national origin, or 
(2) are intended to have such differential impact.'' Second, the Report 
and Order, prohibits ``digital discrimination of access.'' Third, it 
establishes the scope of covered entities, consumers, and services 
subject to the prohibition. Fourth, the Report and Order revises the 
Commission's informal 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. Fifth, it amends certain existing Commission enforcement 
rules: Rule 1.80, to reference the provisions of section 60506 in 
addition to those of the Communications Act and other statutes, and 
Rule 0.111 to reflect the Enforcement Bureau's direction to investigate 
claims of digital discrimination of access and make recommendations as 
to potential violations and penalties. Finally, the Report and Order 
adopts, as guidelines, the Communications Equity and Diversity 
Council's (CEDC's) model policies and best practices to prevent digital 
discrimination by broadband providers, and best practices to advance 
digital equity for states, localities, Tribal governments, and United 
States territories.
Summary of Significant Issues Raised by Public Comments in Response to 
the Initial Regulatory Flexibility Analysis (IRFA)
    194. There were no comments filed that specifically addressed the 
proposed rules and policies presented in the IRFA or otherwise raised 
issues addressing the specific concerns of, and impact on small 
entities. Nonetheless, the Commission considered the potential impact 
of the rules proposed in the IRFA on small entities and took steps 
where appropriate and feasible to reduce the compliance burden for 
small entities in order to reduce the economic impact of the rules 
enacted herein on such entities.
Response to Comments by the Chief Counsel for Advocacy of the Small 
Business Administration
    195. Pursuant to the Small Business Jobs Act of 2010, which amended 
the RFA, the Commission is required to respond to any comments filed by 
the Chief Counsel for Advocacy of the Small Business Administration 
(SBA), and to provide a detailed statement of any change made to the 
proposed rules as a result of those comments. The Chief Counsel did not 
file any comments in response to the proposed rules in this proceeding.
Description and Estimate of the Number of Small Entities to Which the 
Rules Will Apply
    196. 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 rules adopted herein. 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.
    197. 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.
    198. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 
or less to delineate its annual electronic filing requirements for 
small exempt organizations. Nationwide, for tax year 2020, there were 
approximately 447,689 small exempt organizations in the U.S. reporting 
revenues of $50,000 or less according to the registration and tax data 
for exempt organizations available from the IRS.
    199. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2017 Census of Governments indicate there were 
90,075 local governmental jurisdictions consisting of general purpose 
governments and special purpose governments in the United States. Of 
this number there were 36,931 general purpose governments (county, 
municipal and town or township) with populations of less than 50,000 
and 12,040 special purpose governments--independent school districts 
with enrollment populations of less than 50,000. Accordingly, based on 
the 2017 U.S. Census of Governments data, we estimate that at least 
48,971 entities fall

[[Page 4159]]

into the category of ``small governmental jurisdictions.''
    200. Wired Telecommunications Carriers. The U.S. Census Bureau 
defines this industry as establishments primarily engaged in operating 
and/or providing access to transmission facilities and infrastructure 
that they own and/or lease for the transmission of voice, data, text, 
sound, and video using wired communications networks. Transmission 
facilities may be based on a single technology or a combination of 
technologies. Establishments in this industry use the wired 
telecommunications network facilities that they operate to provide a 
variety of services, such as wired telephony services, including VoIP 
services, wired (cable) audio and video programming distribution, and 
wired broadband internet services. By exception, establishments 
providing satellite television distribution services using facilities 
and infrastructure that they operate are included in this industry. 
Wired Telecommunications Carriers are also referred to as wireline 
carriers or fixed local service providers.
    201. 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 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 4,590 providers 
that reported they were engaged in the provision of fixed local 
services. Of these providers, the Commission estimates that 4,146 
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.
    202. Local Exchange Carriers (LECs). Neither the Commission nor the 
SBA has developed a size standard for small businesses specifically 
applicable to local exchange services. Providers of these services 
include both incumbent and competitive local exchange service 
providers. Wired Telecommunications Carriers is the closest industry 
with an SBA small business size standard. Wired Telecommunications 
Carriers are also referred to as wireline carriers or fixed local 
service providers. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms that operated in this industry for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. 
Additionally, based on Commission data in the 2022 Universal Service 
Monitoring Report, as of December 31, 2021, there were 4,590 providers 
that reported they were fixed local exchange service providers. Of 
these providers, the Commission estimates that 4,146 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.
    203. Competitive Local Exchange Carriers (LECs). Neither the 
Commission nor the SBA has developed a size standard for small 
businesses specifically applicable to local exchange services. 
Providers of these services include several types of competitive local 
exchange service providers. Wired Telecommunications Carriers is the 
closest industry with an SBA small business size standard. The SBA 
small business size standard for Wired Telecommunications Carriers 
classifies firms having 1,500 or fewer employees as small. U.S. Census 
Bureau data for 2017 show that there were 3,054 firms 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 2022 Universal Service Monitoring Report, as of December 31, 
2021, there were 3,378 providers that reported they were competitive 
local exchange service providers. Of these providers, the Commission 
estimates that 3,230 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.
    204. Interexchange Carriers (IXCs). Neither the Commission nor the 
SBA has developed a small business size standard specifically for 
Interexchange Carriers. Wired Telecommunications Carriers is the 
closest industry with an SBA small business size standard. The SBA 
small business size standard for Wired Telecommunications Carriers 
classifies firms having 1,500 or fewer employees as small. U.S. Census 
Bureau data for 2017 show that there were 3,054 firms 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 2022 Universal Service Monitoring Report, as of December 31, 
2021, there were 127 providers that reported they were engaged in the 
provision of interexchange services. Of these providers, the Commission 
estimates that 109 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.
    205. Cable System Operators (Telecom Act Standard). The 
Communications Act of 1934, as amended, contains a size standard for a 
``small cable operator,'' which is ``a cable operator that, directly or 
through an affiliate, serves in the aggregate fewer than one percent of 
all subscribers in the United States and is not affiliated with any 
entity or entities whose gross annual revenues in the aggregate exceed 
$250,000,000.'' For purposes of the Telecom Act Standard, the 
Commission determined that a cable system operator that serves fewer 
than 677,000 subscribers, either directly or through affiliates, will 
meet the definition of a small cable operator based on the cable 
subscriber count established in a 2001 Public Notice. Based on industry 
data, only six cable system operators have more than 677,000 
subscribers. Accordingly, the Commission estimates that the majority of 
cable system operators are small under this size standard. We note 
however, that the Commission neither requests nor collects information 
on whether cable system operators are affiliated with entities whose 
gross annual revenues exceed $250 million. Therefore, we are unable at 
this time to estimate with greater precision the number of cable system 
operators that would qualify as small cable operators under the 
definition in the Communications Act.
    206. 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

[[Page 4160]]

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.
    207. 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 2022 Universal 
Service Monitoring Report, as of December 31, 2021, there were 594 
providers that reported they were engaged in the provision of wireless 
services. Of these providers, the Commission estimates that 511 
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.
    208. 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.
    209. 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 2022 Universal 
Service Monitoring Report, as of December 31, 2021, there were 207 
providers that reported they were engaged in the provision of local 
resale services. Of these providers, the Commission estimates that 202 
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.
    210. Toll Resellers. Neither the Commission nor the SBA have 
developed a small business size standard specifically for Toll 
Resellers. Telecommunications Resellers is the closest industry with an 
SBA small business size standard. The Telecommunications Resellers 
industry comprises establishments engaged in purchasing access and 
network capacity from owners and operators of telecommunications 
networks and reselling wired and wireless telecommunications services 
(except satellite) to businesses and households. Establishments in this 
industry resell telecommunications; they do not operate transmission 
facilities and infrastructure. Mobile virtual network operators (MVNOs) 
are included in this industry. The SBA small business size standard for 
Telecommunications Resellers classifies a business as small if it has 
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 
1,386 firms in this industry provided resale services for the entire 
year. Of that number, 1,375 firms operated with fewer than 250 
employees. Additionally, based on Commission data in the 2022 Universal 
Service Monitoring Report, as of December 31, 2021, there were 457 
providers that reported they were engaged in the provision of toll 
services. Of these providers, the Commission estimates that 438 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    211. All Other Telecommunications. This industry is comprised of 
establishments primarily engaged in providing specialized 
telecommunications services, such as satellite tracking, communications 
telemetry, and radar station operation. This industry also includes 
establishments primarily engaged in providing satellite terminal 
stations and associated facilities connected with one or more 
terrestrial systems and capable of transmitting telecommunications to, 
and receiving telecommunications from, satellite systems. Providers of 
internet services (e.g., dial-up ISPs) or voice over internet protocol 
(VoIP) services, via client-supplied telecommunications connections are 
also included in this industry. The SBA small business size standard 
for this industry classifies firms with annual receipts of $35 million 
or less as small. U.S. Census Bureau data for 2017 show that there were 
1,079 firms in this industry that operated for the entire year. Of 
those firms, 1,039 had revenue of less than $25 million. Based on this 
data, the Commission estimates that the majority of ``All Other 
Telecommunications'' firms can be considered small.

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

    212. The Report and Order adopts rules defining digital 
discrimination making it unlawful for any broadband provider or covered 
entity to adopt, implement or utilize policies or practices, not 
justified by genuine issues of technical or economic feasibility, that 
differentially impact consumers' access to broadband internet access 
service based on their income level, race, ethnicity, color, religion, 
or national origin or are intended to have such differential impact. 
When investigating claims of digital discrimination, small entities 
will need to gather and provide information needed by the Commission

[[Page 4161]]

to assess claims of technical or economic feasibility, and prove by a 
preponderance of the evidence that the policy or practice in question 
is justified by genuine issues of technical or economic feasibility. 
This may involve additional staff time, possibly by engineering and 
accounting professionals that can speak to technical or economic 
issues.
    213. In reviewing the record, commenters expressed concern about 
obstacles faced by small providers. However, we adopt a flexible 
approach to assessing the technical and economic feasibility of a 
covered entity's practices, and will review alleged digital 
discrimination of access on a case-by-case basis. The Commission does 
not have sufficient information on the record to quantify the cost of 
compliance for small entities. The Commission, however, anticipates the 
approaches it has taken to implement the requirements will have minimal 
implications because its approach to investigations accounts for 
variations among provider types and industry, and will tailor its 
interactions with such small entities to account for these burdens.

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

    214. The RFA requires an agency to provide ``a description of the 
steps the agency has taken to minimize the significant economic impact 
on small entities . . . including a statement of the factual, policy, 
and legal reasons for selecting the alternative adopted in the final 
rule and why each one of the other significant alternatives to the rule 
considered by the agency which affect the impact on small entities was 
rejected.''
    215. The Report and Order establishes a balanced framework to 
facilitate equal access to broadband internet service by preventing 
digital discrimination of access to that service. These rules adopted 
in the Report and Order address business practices and policies that 
impede equal access to broadband, take into account issues of technical 
and economic feasibility that pose serious challenges to full 
achievement of the equal access objective, and consider impacts on 
small entities. The Commission considered small business interests in 
including ``genuine issues of technical or economic feasibility'' in 
the definition of ``digital discrimination of access.'' The Commission 
also acknowledged that the technical and economic challenges that 
providers face in deploying and serving rural and urban areas can vary 
greatly. The Commission's approach to technical and economic 
feasibility accounts for variations among provider types and 
industries. Moreover, the CEDC conducted outreach to small-, minority-, 
and women- businesses in developing the model policies and best 
practices to prevent digital discrimination of access adopted by the 
Report and Order.
    216. In reaching its final conclusions in this proceeding, the 
Commission considered a number of alternatives, such as addressing 
digital discrimination of access issues raised either in other 
proceedings, or in the current record, that could potentially impact 
small businesses. For example, we considered whether to establish an 
Office of Civil Rights within the Commission, as several commenters 
have urged us to do, however we will make this assessment outside the 
scope of this proceeding as a matter of internal structure, 
organization, and staffing. Additionally, the Commission determined 
that, at this time, its primary focus is to implement effective rules 
to address digital discrimination of access by the statutory deadline 
set by Congress, but will continue to consider the thoughtful proposals 
not addressed in other sections of the Report and Order. We also 
considered proposals to modify current Commission data collections to 
accept new data or otherwise undertake new data collections. However, 
it is currently unclear whether a new data collection's burdens would 
outweigh its potential benefits, because the Commission has access to a 
number of data collections and potential data sources that may assist 
in our analysis of digital discrimination of access claims.
    217. We considered additional alternatives that may impact small 
entities, including how we define terms used in our digital 
discrimination analysis. For example, we declined to adopt specific 
standards or definitions for different types of providers because we 
want these rules to maintain the flexibility needed to address 
providers of various sizes, difference technologies, and the unique 
circumstances of each covered entity, including small businesses. We 
also declined proposals to define digital discrimination in a manner 
that considers differences in the profitability of serving one area 
over another, because we weigh profitability separately from technical 
or economic feasibility. We did not include issues pertaining to 
personal data that is processed by an algorithm in the definition of 
digital discrimination because section 60506 is not directly related to 
those concerns. To eliminate potential loopholes in complying with 
these rules, we retain the term ``genuine'' as part of our definition 
of digital discrimination to ensure that covered entities cannot rely 
upon unsupported assertions of technical or economic feasibility to 
refute claims of digital discrimination of access.

Report to Congress

    218. The Commission will send a copy of the Report and Order, 
including this FRFA, in a report to Congress pursuant to the 
Congressional Review Act.\3\ In addition, the Commission will send a 
copy of the Report and Order, including this FRFA, to the Chief Counsel 
for Advocacy of the Small Business Administration. A copy of the Report 
and Order and FRFA (or summaries thereof) will also be published in the 
Federal Register.
---------------------------------------------------------------------------

    \3\ Id. section 801(a)(1)(A).
---------------------------------------------------------------------------

List of Subjects in 47 CFR Parts 0, 1, and 16

    Communications, Telecommunications, Organizations and Functions, 
Equal Access to Justice, Investigations, Penalties, Digital 
Discrimination, Equal access.

Federal Communications Commission.
Marlene Dortch,
Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications Commission amends 47 CFR parts 0, 1, and 16 as follows:

PART 0--COMMISSION ORGANIZATION

0
1. Effective March 22, 2024, the authority citation for part 0 is 
revised to read as follows:

    Authority:  47 U.S.C. 151, 154(i), 154(j), 155, 225, 409, and 
1754, unless otherwise noted.


0
2. Effective March 22, 2024, amend Sec.  0.111 by adding paragraph 
(a)(30) to read as follows:


Sec.  0.111  Functions of the Bureau.

    (a) * * *
    (30) Resolve complaints alleging violations of digital 
discrimination of access pursuant to 47 CFR part 16.
* * * * *

PART 1--PRACTICE AND PROCEDURE

0
3. Effective March 22, 2024, the authority citation for part 1 is 
revised to read as follows:


[[Page 4162]]


    Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 U.S.C. 2461 note; 47 
U.S.C. 1754, unless otherwise noted.


0
4. Effective March 22, 2024, amend Sec.  1.80 by adding paragraph 
(a)(8) to read as follows:


Sec.  1.80  Forfeiture proceedings.

    (a) * * *
    (8) Violated section 60506 of the Infrastructure and Jobs Act of 
2021 or 47 CFR part 16.
* * * * *

0
5. Delayed indefinitely, amend Sec.  1.717 by adding ``, except for 
digital discrimination of access informal complaints filed pursuant to 
47 CFR part 16'' after ``in accordance with Sec.  1.721'' and before 
the period in the last sentence and by adding a new last sentence.
    The addition reads as follows:


Sec.  1.717  Procedure.

    * * * In addition, for the purpose of informal complaints submitted 
under 47 CFR part 16, the Commission's informal complaint procedures 
will apply to all covered entities as defined in 47 CFR 16.2.

0
6. Effective March 22, 2024, add part 16 to read as follows:

PART 16--DIGITAL DISCRIMINATION OF ACCESS

Sec.
16.1 Purpose.
16.2 Definitions.
16.3 Digital discrimination of access prohibited.
16.4 Findings of discrimination.
16.5 Technical and economic feasibility.
16.6 Enforcement.
16.7 Advisory opinions.

    Authority: 47 U.S.C. 1754, unless otherwise noted.


Sec.  16.1  Purpose.

    The purpose of this part is to implement section 60506 of the 
Infrastructure Investment and Jobs Act, 135 Stat. 429 (2021) 
(Infrastructure Act) that requires the Commission to adopt rules to 
facilitate equal access to broadband internet access service, taking 
into account the issues of technical and economic feasibility presented 
by that objective, including:
    (a) Preventing digital discrimination of access based on income 
level, race, ethnicity, color, religion, or national origin; and
    (b) Identifying necessary steps for the Commission to take to 
eliminate discrimination described in this part.


Sec.  16.2  Definitions.

    Broadband internet access service is defined by Sec.  8.1(b) of 
this subchapter.
    Broadband provider is defined by Sec.  54.1600(b) of this chapter.
    Consumer includes current and potential subscribers, individual 
persons, groups of persons, individual organizations, and groups of 
organizations having the capacity to subscribe to and receive broadband 
internet access service.
    Covered entity includes broadband internet access service providers 
and entities that provide services that facilitate and affect consumer 
access to broadband internet access service, including but not limited 
to:
    (1) Broadband internet access service providers;
    (2) Contractors retained by, or entities working through 
partnership agreements or other business arrangements with, broadband 
internet access service providers;
    (3) Entities facilitating or involved in the provision of broadband 
internet access service;
    (4) Entities maintaining and upgrading network infrastructure; and,
    (5) Entities that otherwise affect consumer access to broadband 
internet access service.
    Covered elements of service is defined as any components of service 
quality or terms and conditions on which broadband internet access 
service is provided. The definition includes, but is not limited to:
    (1) Deployment of broadband infrastructure, network upgrades, and 
network maintenance;
    (2) Service quality components and the terms and conditions on 
which broadband internet access service is provided, including but not 
limited to speeds, capacities, latency, data caps, throttling, pricing, 
promotional rates, imposition of late fees, opportunity for equipment 
rental, installation time, contract renewal terms, service termination 
terms, and use of customer credit and account history;
    (3) Marketing, advertisement, and outreach; and
    (4) Technical service, onsite service, and other provision of 
customer service.
    Covered services is defined as broadband internet access service by 
Sec.  8.1(b) of this subchapter.
    Digital discrimination of access means policies or practices, not 
justified by genuine issues of technical or economic feasibility, that 
differentially impact consumers' access to broadband internet access 
service based on their income level, race, ethnicity, color, religion, 
or national origin or are intended to have such differential impact.
    Economically feasible means reasonably achievable as evidenced by 
prior success by covered entities under similar circumstances or 
demonstrated new economic conditions clearly indicating that the policy 
or practice in question may reasonably be adopted, implemented, and 
utilized.
    Equal access means the opportunity to subscribe to an offered 
service that provides comparable speeds, capacity, latency, and other 
quality of service metrics in a given area, for comparable terms and 
conditions.
    Subscriber is defined as a subscriber to broadband internet access 
service as defined as in Sec.  8.1(b) of this subchapter.
    Technically feasible means reasonably achievable as evidenced by 
prior success by covered entities under similar circumstances or 
demonstrated technological advances clearly indicating that the policy 
or practice in question may reasonably be adopted, implemented, and 
utilized.


Sec.  16.3  Digital discrimination of access prohibited.

    (a) This section provides the Commission's interpretation of 
actions that constitute digital discrimination of access under 47 
U.S.C. 1754.
    (b) It shall be unlawful for any broadband provider, or covered 
entity as described in this part, to adopt, implement or utilize 
policies or practices, not justified by genuine issues of technical or 
economic feasibility, that differentially impact consumers' access to 
broadband internet access service based on their income level, race, 
ethnicity, color, religion, or national origin or are intended to have 
such differential impact.


Sec.  16.4  Findings of discrimination.

    (a) Discriminatory treatment. The Commission may find that a 
covered entity engaged in intentional discrimination by direct evidence 
or circumstantial evidence that the covered entity's policy or practice 
was adopted, implemented, or utilized with the intent to differentially 
impact consumers' access to covered services or covered elements of 
service on one or more of the bases listed in section 60506(b) of the 
Infrastructure Act.
    (b) Discriminatory effect. The Commission may find that a covered 
entity adopted, implemented, or utilized a policy or practice that had 
a discriminatory effect on one or more of the bases listed in section 
60506(b) of the Infrastructure Act. A discriminatory effect occurs when 
a facially neutral policy or practice differentially impacts consumers' 
access to covered services or covered elements of service.

[[Page 4163]]

Sec.  16.5  Technical and economic feasibility.

    (a) Where the Commission determines that a covered entity's policy 
or practice is motivated by discriminatory intent on the basis of 
income level, race, ethnicity, color, religion, or national origin, the 
entity will not be found liable for digital discrimination of access if 
the policy or practice is justified by genuine issues of technical or 
economic feasibility.
    (b) Where the Commission determines that a covered entity's policy 
or practice has discriminatory effects on the basis of income level, 
race, ethnicity, color, religion, or national origin, the entity will 
not be found liable for digital discrimination of access if the policy 
or practice is justified by genuine issues of technical or economic 
feasibility.
    (c) Covered entities have the burden of proving to the Commission 
that a policy or practice under investigation is justified by genuine 
issues of technical or economic feasibility. This may include proof 
that available, less discriminatory alternatives were not reasonably 
achievable at the time the policy or practice was adopted, implemented, 
or utilized because of genuine technical or economic constraints.
    (d) Genuine issues of technical or economic feasibility must be 
demonstrated by a preponderance of the evidence, with the covered 
entity providing the Commission all of the empirical evidence and 
documentation needed to substantiate the technical or economic 
justifications for the policy or practice under investigation.
    (e) The Commission will determine on a case-by-case basis whether 
genuine issues of technical or economic feasibility justified the 
adoption, implementation, or utilization of a policy or practice that 
was motivated by discriminatory intent on the basis of income level, 
race, ethnicity, color, religion, or national origin, or that caused 
discriminatory effects on one or more of these bases.


Sec.  16.6  Enforcement.

    Any allegation that a covered entity has violated the regulations 
in this part may be referred to the Commission's Enforcement Bureau.


Sec.  16.7  Advisory opinions.

    (a) Procedures. (1) Any entity that is subject to the Commission's 
rules implementing section 60506 of the Infrastructure Act may request 
an advisory opinion from the Enforcement Bureau regarding the 
permissibility of its own policies and practices affecting access to 
broadband internet access service. Requests for advisory opinions may 
be filed via the Commission's website or with the Office of the 
Secretary and must be copied to the Chief of the Enforcement Bureau and 
the Chief of the Investigations and Hearings Division of the 
Enforcement Bureau.
    (2) The Enforcement Bureau may, in its discretion, determine 
whether to issue an advisory opinion in response to a particular 
request or group of requests and will inform each requesting entity, in 
writing, whether the Bureau plans to issue an advisory opinion 
regarding the matter in question.
    (3) Requests for advisory opinions must relate to a current or 
proposed policy or practice that the requesting party intends to 
pursue. The Enforcement Bureau will not respond to requests if the same 
or substantially the same conduct is the subject of a current 
government investigation or proceeding, including any ongoing 
litigation or open rulemaking at the Commission.
    (4) Requests for advisory opinions must be accompanied by all 
material information sufficient for Enforcement Bureau staff to make a 
determination on the proposed conduct for which review is requested. 
Requesters must certify that factual representations made to the Bureau 
are truthful and accurate, and that they have not intentionally omitted 
any information from the request. A request for an advisory opinion 
that is submitted by a business entity or an organization must be 
executed by an individual who is authorized to act on behalf of that 
entity or organization.
    (5) Enforcement Bureau staff will have discretion to ask parties 
requesting opinions, as well as other parties that may have information 
relevant to the request or that may be impacted by the proposed 
conduct, for additional information that the staff deems necessary to 
respond to the request. Such additional information, if furnished 
orally or during an in-person conference with Bureau staff, shall be 
promptly confirmed in writing. Parties are not obligated to respond to 
staff inquiries related to advisory opinions. If a requesting party 
fails to respond to a staff inquiry, then the Bureau may dismiss that 
party's request for an advisory opinion. If a party voluntarily 
responds to a staff inquiry for additional information, then it must do 
so by a deadline to be specified by Bureau staff. Advisory opinions 
will expressly state that they rely on the representations made by the 
requesting party, and that they are premised on the specific facts and 
representations in the request and any supplemental submissions.
    (b) Response. After review of a request submitted hereunder, the 
Enforcement Bureau will:
    (1) Issue an advisory opinion that will state the Bureau's 
determination as to whether or not the policy or practice detailed in 
the request complies with the Commission's rules implementing section 
60506 of the Infrastructure Act;
    (2) Issue a written statement declining to respond to the request; 
or
    (3) Take such other position or action as it considers appropriate. 
An advisory opinion states only the enforcement intention of the 
Enforcement Bureau as of the date of the opinion, and it is not binding 
on any party. Advisory opinions will be issued without prejudice to the 
Enforcement Bureau or the Commission to reconsider the questions 
involved, or to rescind or revoke the opinion. Advisory opinions will 
not be subject to appeal or further review.
    (c) Enforcement effect. The Enforcement Bureau will have discretion 
to indicate the Bureau's lack of enforcement intent in an advisory 
opinion based on the facts, representations, and warranties made by the 
requesting party. If the Bureau determines that a policy or practice 
currently in effect violates Commission rules, it may provide in the 
opinion that it will not take enforcement action within a designated 
time period if the policy or practice is promptly corrected. The 
requesting party may rely on the opinion only to the extent that the 
request fully and accurately contains all the material facts and 
circumstances. Should the Bureau or Commission rescind a previously 
issued advisory opinion, the requesting party must promptly discontinue 
use of the relevant policy or practice in order to remain in compliance 
with our rules.
    (d) Public disclosure. The Enforcement Bureau will make advisory 
opinions available to the public on the Commission's website. The 
Bureau will also publish the initial request for guidance and any 
associated materials. Parties soliciting advisory opinions may request 
confidential treatment of information submitted in connection with a 
request for an advisory opinion pursuant to Sec.  0.459 of this 
subchapter.
    (e) Withdrawal of request. Any requesting party may withdraw a 
request for review at any time prior to receipt of notice that the 
Enforcement Bureau intends to issue an adverse opinion, or the issuance 
of an opinion. The Enforcement Bureau remains free, however, to submit 
comments to such requesting party as it deems appropriate. Failure to 
take action after receipt of documents or information,

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whether submitted pursuant to this procedure or otherwise, does not in 
any way limit or stop the Bureau from taking such action at such time 
thereafter as it deems appropriate. The Bureau reserves the right to 
retain documents submitted to it under this procedure or otherwise and 
to use them for all governmental purposes.

[FR Doc. 2023-28835 Filed 1-19-24; 8:45 am]
BILLING CODE 6712-01-P