FCC Releases New Rules Prohibiting Digital Discrimination

FCC Releases New Rules Prohibiting Digital Discrimination 

The Federal Communications Commission (FCC) recently released the final Report and Order (Order) and Further Notice of Proposed Rulemaking (FNPRM) detailing the FCC’s new rules prohibiting digital discrimination.

These new rules impose sweeping obligations on broadband providers, who now must ensure that all deployment of broadband services in the United States is equitable to both current and prospective consumers.

The FCC has defined “digital discrimination of access” as policies or practices that either differentially impact consumers’ access to broadband internet service based on their income level, race, ethnicity, color, religion or national origin, or are intended to have such differential impact. The FCC clarifies that this definition encapsulates conduct that either has a discriminatory intent or discriminatory effect, meaning providers must now always justify how broadband is deployed and customer services are rendered based on the FCC’s new criteria.

The FCC’s new rules will no doubt require vigilance — as the FCC has adopted new mechanisms for consumer complaints against broadband providers. Accordingly, broadband providers should prepare to adopt comprehensive compliance and monitoring programs to ensure full adherence to the new digital discrimination prohibition.

Additional key topics the FCC addresses in the Order are:

• The definition of “Consumer” includes current and prospective subscribers to broadband internet access service, including individuals, groups of individuals, organizations, and groups of organizations.
• The scope of the rules extends not only to providers of broadband internet access services, but also to entities that facilitate and otherwise affect consumer access to broadband internet access services.
• Enforcement will be through self-initiated FCC investigations and the FCC’s informal complaint process, which is being updated to accept complaints alleging digital discrimination.

Finally, in a Further Notice of Proposed Rulemaking included in the Order, the FCC seeks comment on the adoption of affirmative digital discrimination compliance obligations for broadband providers, notably (1) annual reports concerning substantial broadband projects recently completed by providers, and (2) internal compliance programs requiring periodic evaluation of the demographics of communities served—and not served.

JSI will continue to monitor this proceeding and provide updates as they become available. Please contact Christopher Canter, with any questions regarding the new rules or if your company needs assistance with compliance requirements.