4128 Federal Register / Vol. 89, No. 14 / Monday, January 22, 2024 / Rules and Regulations 

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. 

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 highspeed 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, Aure ́lie 

Mathieu, at (202) 418–2194, 

Aurelie.Mathieu@fcc.gov. For additional 

information concerning the Paperwork 

Reduction Act information collection 

requirements contained in this 

document, send an email to PRA@

fcc.gov or contact Nicole Ongele, 

Nicole.Ongele@fcc.gov. 

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 FCC504@

fcc.gov 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 § 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 highspeed 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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Federal Register / Vol. 89, No. 14 / Monday, January 22, 2024 / Rules and Regulations 4129 

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 nontechnical 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, Nationwide’’ 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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4130 Federal Register / Vol. 89, No. 14 / Monday, January 22, 2024 / Rules and Regulations 

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 highrisk 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 lowincome 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 highquality 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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Federal Register / Vol. 89, No. 14 / Monday, January 22, 2024 / Rules and Regulations 4131 

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 nongovernmental 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-tounderstand 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-tobuild 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, highspeed 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 


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4134 Federal Register / Vol. 89, No. 14 / Monday, January 22, 2024 / Rules and Regulations 

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

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. 

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 


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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 


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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 


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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 


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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 § 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 

§ 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 


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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 

§ 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. 


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


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4142 Federal Register / Vol. 89, No. 14 / Monday, January 22, 2024 / Rules and Regulations 

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 § 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 


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


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4144 Federal Register / Vol. 89, No. 14 / Monday, January 22, 2024 / Rules and Regulations 

Covered Services 

103. For purposes of these rules, we 

apply the same definition of ‘‘broadband 

internet access service’’ that appears in 

§ 8.1(b) of the Commission’s rules. That 

definition states: The term ‘‘broadband 

internet access service’’ means ‘‘a massmarket 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 § 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 § 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 catchall 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, 


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


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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 


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(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 deidentified 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 antidiscrimination 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 


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2 Infra para. 179. 

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. 

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 


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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, 


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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 brightline 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 staffmediated 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 Bureauinitiated 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 


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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 


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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 


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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 illsuited 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 nontechnical 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 nontechnical terms of service across 

covered entities. 

169. We decline to establish a 

prescriptive standard to compare nontechnical 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 nontechnical 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-bycase 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-bycase 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 


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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-tobuild 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 

WCBDigDiscrimInfo@fcc.gov. 

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 ‘‘smallbusiness 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 


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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 


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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 


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

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-bycase 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. 

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 

■ 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. 

■ 2. Effective March 22, 2024, amend 

§ 0.111 by adding paragraph (a)(30) to 

read as follows: 

§ 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 

■ 3. Effective March 22, 2024, the 

authority citation for part 1 is revised to 

read as follows: 


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Authority: 47 U.S.C. chs. 2, 5, 9, 13; 28 

U.S.C. 2461 note; 47 U.S.C. 1754, unless 

otherwise noted. 

■ 4. Effective March 22, 2024, amend 

§ 1.80 by adding paragraph (a)(8) to read 

as follows: 

§ 1.80 Forfeiture proceedings. 

(a) * * * 

(8) Violated section 60506 of the 

Infrastructure and Jobs Act of 2021 or 47 

CFR part 16. 

* * * * * 

■ 5. Delayed indefinitely, amend § 1.717 

by adding ‘‘, except for digital 

discrimination of access informal 

complaints filed pursuant to 47 CFR 

part 16’’ after ‘‘in accordance with 

§ 1.721’’ and before the period in the 

last sentence and by adding a new last 

sentence. 

The addition reads as follows: 

§ 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. 

■ 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. 

§ 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. 

§ 16.2 Definitions. 

Broadband internet access service is 

defined by § 8.1(b) of this subchapter. 

Broadband provider is defined by 

§ 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 

§ 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 § 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. 

§ 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. 

§ 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. 


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Federal Register / Vol. 89, No. 14 / Monday, January 22, 2024 / Rules and Regulations 4163 

§ 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. 

§ 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. 

§ 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 § 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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4164 Federal Register / Vol. 89, No. 14 / Monday, January 22, 2024 / Rules and Regulations 

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 


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