The Federal Communications Commission (FCC) has approved final rules regarding digital discrimination in a move that has elicited swift opposition from broadband stakeholders.
The Bipartisan Infrastructure Law, signed in 2021, required the FCC to adopt rules by November 15, 2023 to “prevent” and “eliminate” digital discrimination based on characteristics including income level, race, ethnicity, religion and national origin.
The FCC said new rules will target business practices and policies that impede equal access to broadband without “adequate justification.”
Under the new framework the Commission will be able to investigate possible instances of digital discrimination — and penalize companies for violating its rules.
Notably, the FCC will determine whether digital discrimination is at play by looking at “intent” as well as “impact.”
“The rules focus on the very real problem of outcome, such as when decisions untainted by discriminatory intent nevertheless cause different communities to receive different access to broadband services,” the Commission said in a statement. “The rules do not focus solely on the mindsets of industry participants when making decisions that affect access to broadband service.”
The FCC will review consumer complaints of digital discrimination through a newly constructed portal and staff will meet monthly to assess trends in complaint patterns.
FCC Chairwoman Jessica Rosenworcel said the Commission will accept “genuine reasons of technical and economic feasibility as valid reasons why it may not be possible for equal access to a provider’s network,” and will “review those defenses carefully and thoughtfully on a case-by-case basis.”
In a statement Rosenworcel called the section of the Bipartisan Infrastructure Law that addresses digital discrimination “a big deal.”
“It is the first bipartisan civil rights law focused on the digital age,” she wrote.
“These rules are strong,” Rosenworcel wrote. “When you consider Congress explicitly directed us to ‘prevent’ and ‘eliminate’ digital discrimination of access, they had better be. But I would also argue that they are fair and reasonable.”
Rosenworcel and Commissioners Starks and Gomez on Wednesday voted in support of the new rules, while Carr and Simington dissented.
In his dissent, Carr likened the new rules to the FCC’s recent proposal to reinstate net neutrality regulation over broadband providers. “None of these are isolated decisions—they share and advance the same goal of increasing government control,” he wrote.
And earlier this week, over half of the Republicans in the U.S. Senate urged the FCC to halt the order with similar complaints that it will allow the Commission to "control over nearly every aspect of the internet.”
Various industry groups, think tanks and other broadband stakeholders were quick to issue their own statements opposing the FCC’s new rules, with many saying the Commission’s framework will actually counter what Congress intended with its equal access legislation.
ACA Connects CEO Grant Spellmeyer put out a statement which said the FCC’s new rules will “deter investment, innovation and deployment for reasons that do little to address any sort of discrimination at the expense of the precise consumers they intend to help.”
Spellmeyer further wrote that the rules would especially impact smaller providers. “With virtually every business decision under the FCC’s microscope, they will rack up legal bills and other compliance costs,” he said.
USTelecom, The Information Technology and Innovation Foundation (ITIF), the Free State Foundation and the Wireless Internet Service Providers Association (WISPA) have all released statements expressing similar skepticism.
NTCA–The Rural Broadband Association CEO Shirley Bloomfield said in a statement she will need to see the final order as approved to understand better its application to operations in rural areas.
“The rules must not create an uncertain environment where broadband providers will be anxious that decisions they make, however well-intended and prudent as a matter of business planning, could be subject to second-guessing by regulators and potential penalty,” wrote Bloomfield.
As it stands, the FCC rules will go into effect 60 days after publication in the Federal Register, with the exception of some rules that will have to go through review by the Office of Management and Budget under the Paperwork Reduction Act.