[Federal Register Volume 89, Number 22 (Thursday, February 1, 2024)]
[Proposed Rules]
[Pages 6477-6487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01996]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0, 1, and 16

[GN Docket No. 22-69; FCC 23-100; FR ID 197453]


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

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) proposes rules regarding affirmative obligations for 
broadband providers, through: annual reports that facilitate greater 
transparency regarding substantial broadband projects recently 
completed by providers, and internal compliance programs requiring 
periodic evaluation of the demographics of communities served--and not 
served--by such recently completed projects, as well as pending and 
planned substantial projects. The Commission also seeks comment on 
establishing am Office of Civil Rights.

DATES: Comments are due on or before March 4, 2024, and reply comments 
are due on or before April 1, 2024. Written comments on the Paperwork 
Reduction Act proposed information collection requirements must be 
submitted by the public and other interested parties on or before April 
1, 2024.

ADDRESSES: You may submit comments, identified by GN Docket No. 22-69, 
by any of the following methods:
    <bullet> Federal Communications Commission's Website: http://apps.fcc.gov/ecfs/. Follow the instructions for submitting comments.
    <bullet> People With Disabilities: Contact the FCC to request 
reasonable accommodations (accessible format documents, sign language 
interpreters, CART, etc.) by email: <a href="/cdn-cgi/l/email-protection#165055552326225670757538717960"><span class="__cf_email__" data-cfemail="da9c9999efeaee9abcb9b9f4bdb5ac">[email protected]</span></a> or phone: 202-418-
0530 or TTY: 202-418-0432.
    For detailed instructions for submitting comments and additional 
information on the rulemaking process, see the SUPPLEMENTARY 
INFORMATION section of this document. Send a copy of your comment on 
the proposed information collection to Nicole Ongele, FCC, via email to 
<a href="/cdn-cgi/l/email-protection#d282809392b4b1b1fcb5bda4"><span class="__cf_email__" data-cfemail="2c7c7e6d6c4a4f4f024b435a">[email protected]</span></a> or <a href="/cdn-cgi/l/email-protection#622c0b010d0e074c2d0c05070e07220401014c050d14"><span class="__cf_email__" data-cfemail="b6f8dfd5d9dad398f9d8d1d3dad3f6d0d5d598d1d9c0">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: Wireline Competition Bureau, 
Competition Policy Division, Aur[eacute]lie Mathieu, at (202) 418-2194, 
<a href="/cdn-cgi/l/email-protection#aeefdbdccbc2c7cb80e3cfdac6c7cbdbeec8cdcd80c9c1d8"><span class="__cf_email__" data-cfemail="2f6e5a5d4a43464a01624e5b47464a5a6f494c4c01484059">[email protected]</span></a>. For additional information concerning the 
Paperwork Reduction Act information collection requirements contained 
in this document, send an email to <a href="/cdn-cgi/l/email-protection#267674676640454508414950"><span class="__cf_email__" data-cfemail="a5f5f7e4e5c3c6c68bc2cad3">[email protected]</span></a> or contact Nicole 
Ongele, <a href="/cdn-cgi/l/email-protection#c886a1aba7a4ade687a6afada4ad88aeababe6afa7be"><span class="__cf_email__" data-cfemail="f9b7909a96959cd7b6979e9c959cb99f9a9ad79e968f">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's 
Further Notice of Proposed Rulemaking (Further Notice) 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 <a href="/cdn-cgi/l/email-protection#50161313656064103633337e373f26"><span class="__cf_email__" data-cfemail="4f090c0c7a7f7b0f292c2c61282039">[email protected]</span></a> or call the Consumer & Governmental 
Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY).
    Providing Accountability Through Transparency Act: The Providing 
Accountability Through Transparency Act, Public Law 118-9, requires 
each agency, in providing notice of a rulemaking, to post online a 
brief plain-language summary of the proposed rule. The required summary 
of this Further Notice of Proposed Rulemaking is available at https://www.fcc.gov/proposed-rulemakings.
    Initial Paperwork Reduction Act of 1995 Analysis: This document 
contains proposed information collection requirements. The Commission, 
as part

[[Page 6478]]

of its continuing effort to reduce paperwork burdens, invites the 
general public to comment on the information collection requirements 
contained in this document, as required by the Paperwork Reduction Act 
of 1995, Public Law 104-13. Public and agency comments are due April 1, 
2024.
    Pursuant to Sec. Sec.  1.415 and 1.419 of the Commission's rules, 
47 CFR 1.415, 1.419, interested parties may file comments and reply 
comments on or before the dates indicated on the first page of this 
document. Comments may be filed using the Commission's Electronic 
Comment Filing System (ECFS). See Electronic Filing of Documents in 
Rulemaking Proceedings, 63 FR 24121 (1998).
    <bullet> Electronic Filers: Comments may be filed electronically 
using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.
    <bullet> Paper Filers: Parties who choose to file by paper must 
file an original and one copy of each filing.
    <bullet> Filings can be sent by commercial overnight courier, or by 
first-class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    <bullet> Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701. U.S. Postal Service first-class, Express, 
and Priority mail must be addressed to 45 L Street NE, Washington, DC 
20554.
    <bullet> Effective March 19, 2020, and until further notice, the 
Commission no longer accepts any hand or messenger delivered filings. 
This is a temporary measure taken to help protect the health and safety 
of individuals, and to mitigate the transmission of COVID-19. See FCC 
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020), https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.
    People With Disabilities: To request materials in accessible 
formats for people with disabilities (braille, large print, electronic 
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="fe989d9dcbcecabe989d9dd0999188">[email protected]</a> or call the 
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (TTY).
    The proceeding this document initiates shall be treated as a 
``permit-but-disclose'' proceeding in accordance with the Commission's 
ex parte rules. Persons making ex parte presentations must file a copy 
of any written presentation or a memorandum summarizing any oral 
presentation within two business days after the presentation (unless a 
different deadline applicable to the Sunshine period applies). Persons 
making oral ex parte presentations are reminded that memoranda 
summarizing the presentation must (1) list all persons attending or 
otherwise participating in the meeting at which the ex parte 
presentation was made, and (2) summarize all data presented and 
arguments made during the presentation. If the presentation consisted 
in whole or in part of the presentation of data or arguments already 
reflected in the presenter's written comments, memoranda or other 
filings in the proceeding, the presenter may provide citations to such 
data or arguments in his or her prior comments, memoranda, or other 
filings (specifying the relevant page and/or paragraph numbers where 
such data or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule 1.1206(b). In proceedings governed by 
rule 1.49(f) or for which the Commission has made available a method of 
electronic filing, written ex parte presentations and memoranda 
summarizing oral ex parte presentations, and all attachments thereto, 
must be filed through the electronic comment filing system available 
for that proceeding, and must be filed in their native format (e.g., 
.doc, .xml, .ppt, searchable .pdf). Participants in this proceeding 
should familiarize themselves with the Commission's ex parte rules.
    This document may contain potential new or revised information 
collection requirements. The Commission, as part of its continuing 
effort to reduce paperwork burdens, invites the general public and the 
Office of Management and Budget (OMB) to comment on the information 
collection requirements contained in this document, as required by the 
Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency 
comments are due April 1, 2024.
    Comments should address: (a) whether the proposed collection of 
information is necessary for the proper performance of the functions of 
the Commission, including whether the information shall have practical 
utility; (b) the accuracy of the Commission's burden estimates; (c) 
ways to enhance the quality, utility, and clarity of the information 
collected; (d) ways to minimize the burden of the collection of 
information on the respondents, including the use of automated 
collection techniques or other forms of information technology; and (e) 
way to further reduce the information collection burden on small 
business concerns with fewer than 25 employees. In addition, pursuant 
to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 
see 44 U.S.C. 3506(c)(4), the Commission seeks specific comment on how 
it might further reduce the information collection burden for small 
business concerns with fewer than 25 employees.

Synopsis

    1. In this Further Notice we take additional steps to fulfill our 
statutory mandate to facilitate equal access to broadband internet 
access service by preventing digital discrimination of access. We seek 
further, focused comments on affirmative obligations that might be 
undertaken by broadband service access providers (providers) to expand 
broadband access and address possible digital discrimination of access. 
Our digital discrimination of access rules apply to ``covered 
entities'' which is broader than broadband providers, but at this time 
our proposed annual report and compliance program are limited to 
broadband providers as defined in 47 CFR 54.1600(b). The proposals in 
this Further Notice complement rules we adopt today by focusing on 
providers' day-to-day business practices that might, in some instances, 
differentially impact consumers' access to broadband on prohibited 
bases. Our proposals are intended to make fully transparent to the 
public what communities are served, and what communities are not 
served, by large-scale broadband deployment, upgrade, and maintenance 
projects completed or substantially completed by each provider over the 
preceding calendar year. We propose to require the reporting of this 
information on a state-by-state or territory-by-territory basis in a 
yearly supplement to the Broadband Data Collection (BDC) so the public 
can see not only where broadband service is available, but where and 
how providers are currently investing in their broadband networks and 
what communities are benefiting from those investments. Our proposals 
would also require providers to establish formal compliance programs 
related to digital discrimination of access and to conduct regular, 
internal assessments of what communities are served (and not served) by 
recently completed, pending, and planned large-scale broadband projects 
and whether their relevant policies and practices

[[Page 6479]]

might differentially impact consumers' access to broadband service. 
Such regular assessments, we believe, will help ``smoke out'' policies 
and practices that might impede equal access to broadband service 
without sufficient technical or economic justification as providers 
pressure test the asserted justifications for policies and practices 
producing such effects. Affirmative obligations such as these are not 
foreign to the Commission. Most recently, for example, the Commission 
has adopted affirmative obligations for voice service providers to 
better police their own networks against illegal robocalls and protect 
consumers from widespread fraud, and we believe that targeted 
affirmative and effective measures can similarly combat discriminatory 
practices in the context of our duty under section 60506 to prevent and 
identify steps to eliminate digital discrimination of access.
    2. In this Further Notice, we propose two sets of affirmative 
obligations for broadband providers in furtherance of our mandate to 
facilitate equal access to broadband internet access service, including 
by preventing digital discrimination of access. Under our proposal, 
each broadband provider would be required to: (1) submit an annual, 
publicly-available supplement to the BDC describing, on a state-by-
state or territory-by-territory basis, any large-scale broadband 
deployment, upgrade, and maintenance projects that were completed or 
substantially completed during the preceding calendar year and the 
communities served by such projects; and (2) establish a mandatory 
internal compliance program requiring regular internal assessment of 
(a) what communities are served by recent, pending, and planned large-
scale projects and (b) whether the provider's broadband-related 
policies and practices might differentially impact consumers' access to 
broadband based on a listed characteristic and without adequate 
technical or economic justification.
    3. Legal Authority. We seek general comment on our authority to 
require providers to implement affirmative obligations. Section 60506 
directs the Commission to adopt rules to prevent digital discrimination 
of access and identify necessary steps to eliminate such 
discrimination. Does section 60506 authorize the Commission to impose 
affirmative obligations on providers? Does the Communications Act 
provide the Commission such authority, irrespective of whether section 
60506 is part of the Communications Act? Does section 4(i) of the 
Communications Act provide the Commission either direct or ancillary 
authority to do so? Besides these legal authorities, are there other 
sources for our authority to implement affirmative obligations of the 
types set forth below?

Annual Report

    4. We propose requiring that providers submit an annual, publicly-
available supplement to the BDC describing their recent broadband 
investments in each state and territory. This supplemental report would 
identify and describe, on a state-by-state or territory-by-territory 
basis, all fixed or mobile broadband deployment, upgrade, and 
maintenance projects completed or substantially completed in the 
preceding calendar year, that are expected to affect the availability 
or quality of broadband service at 500 or more housing units. A 
``housing unit'' is defined as a single family house, townhome, mobile 
home or trailer, apartment, group of rooms, or single room that is 
occupied as a separate living quarters, or, if vacant, is intended for 
occupancy as a separate living quarters. The report would categorize 
each such project as a deployment, upgrade, or maintenance project (or 
some combination thereof) and would identify the number of housing 
units affected by the project through numerical bands (such as 500-999, 
1000-4999, 5000-9999, etc.). The report would identify through the 
census tract affected by the project, and would provide a brief 
narrative description of the project and the geographic area served by 
the project to provide greater precision and clarity regarding what the 
project is designed to accomplish and what communities are served by 
the project. The primary goal of requiring this report would be to 
increase transparency regarding what substantial investments providers 
are currently making in their networks, what communities are being 
served--or not served--by those investments, and how they are being 
served. The information provided in the annual supplement to the BDC 
would allow the Commission, state and local broadband regulators, 
public interest organizations, and other stakeholders to review on a 
jurisdiction-by-jurisdiction basis what major deployment, upgrade, and 
maintenance projects covered entities have completed or substantially 
completed within the states and territories of their footprint and what 
communities are and are not served by those projects. We believe this 
information would assist in the development of broadband policy, in the 
strengthening of advocacy for broadband expansion, and in the targeting 
of our efforts to enforce our digital discrimination of access rules.
    5. In the Notice of Proposed Rulemaking, 88 FR 3681, we sought 
comment on what self-assessment or reporting obligations we should 
require of providers. In response, the Leadership Conference on Civil 
and Human Rights suggested that we look to other sources of civil 
rights law to develop affirmative obligations, Microsoft recommended 
that providers use Commission data to formulate plans to address 
digital discrimination of access, and several commenters recommended 
self-reporting requirements. Based on the comments received in the 
record, we believe our steps in this Further Notice are consistent with 
recommendations for self-reporting and will result in useful data to 
stakeholders. We seek comment on this approach.

Components of the Report

    6. We propose that each annual report must address the following 
components to provide a comprehensive picture of each major deployment, 
maintenance, and upgrade project completed or substantially completed 
for each state and territory within its service area or footprint: (1) 
the nature of each project completed or substantially completed in the 
calendar year immediately preceding the submission of the report (i.e., 
deployment, upgrade, maintenance, or a combination thereof); (2) the 
number of housing units affected by the project (i.e., the number of 
housing units whose broadband availability or quality is positively 
impacted by the project) by census tract (utilizing the system 
presently used in the BDC); and (3) a narrative description of the 
project and of the areas served by the project, to allow for greater 
precision and clarity regarding what the project is designed to 
accomplish and what communities are served by the project.
    7. We seek general comment on the pros and cons of an annual report 
in the context of this proceeding. What are the short-term and long-
term benefits of this proposal? Is there a more appropriate way to 
collect this information other than an annual report? Is there a way we 
can utilize existing data in connection with or in place of the 
proposed annual report to promote transparency regarding broadband 
investments? How could regulators leverage these reports to address 
potential disparities in broadband access? Are there other stakeholders 
that would benefit from such a report? Are there other uses for such a 
report that would foster the equal access policy of section 60506? Are 
there other potential benefits or

[[Page 6480]]

challenges in implementing an annual reporting requirement?
    8. We also invite comment on the proposed components of the annual 
report, discussed in turn below. Are they sufficient? Are there other 
components that are necessary to meet our transparency goal. Are any of 
the proposed components in conflict or tension with the equal access 
goal of section 60506? What other reasons or justifications might exist 
for excluding one or more of the proposed components of the report? 
Would there be challenges in implementing this proposal and if so, how 
can the challenges be addressed? We seek comment on how to strike the 
right balance between gathering sufficient information and avoiding 
undue burdens on reporting entities when implementing this annual 
report requirement.
    9. Nature of the projects. In identifying the nature of the 
projects completed or substantially completed in the report, our 
proposal would require that providers identify any broadband 
deployment, upgrade, or maintenance projects undertaken within the 
specified period and affecting 500 or more housing units. We believe 
that deployment, maintenance, and upgrade projects are the type of 
investments that most broadly and directly affect consumer access to 
broadband service and, thus, should be reported in order to facilitate 
greater transparency regarding where such investments are being made. 
We seek comment on this proposal. We propose to deem a project 
completed when all the tasks and objectives have been successfully 
completed, all deliverables have been produced, all milestones have 
been met, and there is no outstanding work or tasks to be done. We also 
seek comment on what should be considered a substantially completed 
project. For example, should we define substantially completed as being 
a project for which, at the providers' discretion, either 85% of the 
impacted locations are covered, or for which 85% of the most recent 
budget with commercial approval has been spent? Should the difference 
between the definitions of substantially completed and completed be 
based on providers expected timeline for a project?
    10. Housing units affected. We propose that the reporting 
requirement apply to projects affecting 500 or more housing units. We 
propose to use the definition of a ``housing unit'' in Commission rule 
802.223, which defines the term as ``a single family house, townhome, 
mobile home or trailer, apartment, group of rooms, or single room that 
is occupied as a separate living quarters, or, if vacant, is intended 
for occupancy as a separate living quarters.'' An ``economic unit'' 
consists of all adult individuals contributing to and sharing in the 
income and expenses of a household. We seek comment on this definition. 
Based on this proposed definition, we seek comment on what number of 
housing units should trigger the requirement to report on a particular 
project. Is the number 500 reasonable in light of our transparency 
goal? Should the same threshold number of housing units apply to 
deployment, upgrade, and maintenance projects? Should different 
thresholds be applied to each category? Once the 500 housing unit 
threshold is met, is categorizing housing units in metric bands (e.g., 
500-999, 1000-4999, 5000-9999) an effective method to report the scope 
of the deployment, maintenance, or upgrade projects? We specifically 
seek comment on the potential impacts on rural and Tribal areas. Should 
there be special considerations for rural and Tribal areas? If so, how 
can we ensure that these areas are being considered?
    11. Geographic area of the project. We seek comment on requiring 
providers to report the geographic area of each major deployment, 
upgrade, and maintenance project by census tract. Would reporting 
projects at the level of the census tract be appropriate? What benefits 
and burdens would be associated with reporting data at the census tract 
level? Would census block be too granular? Should providers be required 
or permitted to report impacted locations in the same manner as they 
report deployed locations in the BDC? Since the BDC allows providers to 
report availability data in the form of polygon shapefiles, or as 
broadband serviceable location fabric (fabric), would adopting either 
one of these metrics reduce the burden on filers? In what format do 
covered entities routinely store data on deployments, upgrades, and 
maintenance projects? To the extent covered entities do not routinely 
collect and store such information, we seek comment on how to specify a 
single methodology for doing so.
    12. We also seek comment on whether there are more precise metrics 
to identify the location of projects in rural and Tribal areas than the 
proposed census tract metric. Are there any additional issues specific 
to rural and Tribal areas that we should consider in completion of 
these annual reports? Would a census block requirement be workable? 
Would it encompass rural and Tribal areas more efficiently? Should 
providers be required to identify whether the impacted area is rural or 
Tribal and, if so, how should they do that? Should covered entities be 
required to specifically describe their projects in Tribal areas, 
irrespective of the number of housing units served by the project?
    13. Narrative description of project. We propose that providers use 
the narrative description to provide information regarding each project 
sufficient to determine what the project was designed to accomplish, 
why it was undertaken, and what communities within the designed census 
tracts it was intended to serve. In particular, the designation of a 
project as a deployment, upgrade, or maintenance project may not 
sufficiently explain what the project was intended to accomplish (e.g., 
upgrade service from DSL to fiber) or the specific communities within 
the designated census tracts that will be served by the project (e.g., 
naming the neighborhoods served or providing the geographic boundaries 
of the project). By requiring the narrative description of the project, 
we intend to allow greater precision and clarity about the nature of 
the project and the communities served, without being overly 
prescriptive. We seek comment on this proposal. Should we be more 
prescriptive about the narrative descriptions required? Should we 
require, for example, that providers describe the demographics of the 
communities served by these projects and/or the dates the projects were 
completed or substantially completed? Is there other narrative 
information we should require in order for the reporting requirement to 
serve its intended purpose of providing greater transparency regarding 
recent broadband investments? More generally, is a report of the type 
we propose necessary or helpful in light of the data already being 
collected through the BDC?

Annual Report Filing Timeline

    14. We propose to require providers to file their annual report as 
a supplement to the BDC report due in March of each year and that it 
cover projects completed or substantially completed in the calendar 
year immediately preceding the submission of the report. We seek 
comment on this proposal. We seek comment on this filing timetable and 
whether it provides sufficient time for providers to gather and review 
the information required in the report. We also seek comment on whether 
submitting the annual report as a supplement to the year-end BDC filing 
is the most reasonable and efficient approach. Should these deadlines 
be

[[Page 6481]]

staggered? If so, how much time should be allotted between the filing 
of the year-end BDC report and the annual, major projects report?

Availability of Annual Reports

    15. We propose to make the results of these annual reports 
available to the public. As discussed above, we tentatively conclude 
that significant benefits would flow from making these reports public, 
such as increasing transparency regarding substantial investments by 
providers, informing broadband policy at the Federal, state and local 
level, strengthening advocacy for expanded broadband access, and 
targeting the Commission's efforts to enforce the rules we adopt today. 
We seek comment on our proposal to make these reports public. What is 
the best method for releasing these reports to the public? Should these 
reports be easily accessible on the provider's website or should they 
be made available by another means? We also seek comment on the 
benefits or burdens of making the reports available to the public. Are 
there confidentiality concerns we need to consider with respect to the 
information in question? If so, what measures would be necessary to 
protect the legitimate confidentiality interests of providers?

Supplements to Existing Commission-Issues Reports

    16. We also seek comment on whether the Commission should publish 
certain data from the proposed annual reports in the Commission's 
existing reports, such as the Communications Marketplace Report or the 
broadband progress report required by section 706 of the 
Telecommunications Act of 1996 (Section 706 Report). We note that the 
Commission has already initiated the inquiry for the next Section 706 
Report. Although we propose that the annual reports be publicly 
available, as supplements to the annual BDC filings, would including 
certain data in either of these existing Commission reports provide 
greater transparency to consumers and communities? If so, what data 
should be included? Should we include the entirety of the proposed 
annual reports, or limit the data to a more narrow set of data points? 
Should we expand the information published in the Communications 
Marketplace Report or the Section 706 Report beyond the proposed annual 
reports to include summaries of filed digital discrimination of access 
informal complaints, any findings of digital discrimination of access, 
or steps the Commission has taken to address equal access? Would 
including this additional information in either these Commission-issued 
reports enhance transparency and make the proposed annual reports fully 
available and accessible to more stakeholders?

Intersection With Other Broadband Data

    17. We seek comment on how providers can leverage existing data 
sources, such as the existing BDC, in compiling these reports. To the 
extent we can model the requirements for this report off the BDC, how 
would that be helpful to providers? We assume that providers would 
prefer to use the same criteria and data fields that are used in the 
BDC to the extent possible. We seek comment on whether this is true.
    18. Are the relevant criteria and data fields used in the BDC too 
broad or narrow for our present purposes? Is there a need for 
additional data to be collected or for different metrics to be used? 
Given that providers are aware of their deployment and report the 
impact of deployments as part of the BDC, what would be the additional 
burden of providing annual reports? Are there policies or procedures we 
can adopt to reduce the burden on providers?
    19. We tentatively conclude that the annual reports proposed above 
should be certified by the provider as true and correct, just as occurs 
with respect to BDC submissions. We propose that the same experts who 
certify the BDC submissions also be required to certify the proposed 
annual report: (1) a corporate officer, and (2) an engineer. We seek 
comment on this proposal. Should we consider a different certification 
process? Is it necessary that both a corporate officer and an engineer 
certify reports containing the elements we have outlined above? Might 
other officers or employees of the provider be better informed to 
certify the contents of this annual report? We seek detailed comment on 
these matters.

Exceptions

    20. We seek comment on whether any providers should be exempted 
from the requirement to submit an annual report based on their size, 
footprint, or service area. Should we exempt providers that primarily 
serve consumers at the rural and Tribal level and, if so, why? What 
other providers should be exempted from submitting an annual report and 
why?

Record Retention

    21. It is important that records sufficient to determine the 
veracity of the proposed annual reports be retained for some period of 
time following submission of the reports. We seek comment on what 
records should be retained and for how long they should be retained in 
order to accomplish this verification purpose. We also seek comment on 
whether records related to the proposed annual reports should be 
retained for any purpose other than verification of the information 
contained in such reports.

Compliance Program

    22. In addition to the annual report, we propose to require each 
provider to adopt and maintain a formal internal compliance program 
designed to ensure regular assessment of whether and how the provider's 
policies and practices advance and impede equal access to broadband 
internet access service in its service area. In proposing to require 
such compliance programs, our goals are to ensure close internal 
scrutiny of policies and practices that might impede equal access to 
broadband and to promote accountability with regard to such policies 
and practices. In order to facilitate candid internal evaluation and 
assessment of a provider's policies and practices affecting broadband 
access, we do not propose to require providers to make publicly 
available any reports or other documentation of such internal 
evaluations and assessments. However, in order to ensure compliance 
with the requirement to conduct such evaluations and assessments, and/
or in connection with a Commission investigation into alleged digital 
discrimination of access, the Commission reserves the right to require 
production of such reports and documentation subject to the 
Commission's existing confidentiality rules. We seek comment on this 
proposal.

Components of Compliance Program

    23. Effective Compliance Program. We propose to model our mandatory 
internal compliance program on previously established effective 
compliance programs, while not being overly prescriptive regarding how 
the compliance program is designed. Such models teach us that effective 
compliance programs should include, at a minimum: (1) development and 
implementation of written policies and procedures; (2) designation of a 
compliance officer and/or compliance committee; (3) conducting 
effective training and education regarding the purposes and operation 
of the compliance program; (4) developing effective lines of reporting 
and communication; (5) conducting internal monitoring and auditing; (6) 
enforcing standards through well-publicized disciplinary guidelines; 
and (7) responding promptly to detected

[[Page 6482]]

problems through corrective action. We seek comment on whether these 
should be mandatory components of the compliance programs we propose to 
require. Which of these elements of an effective compliance programs 
should we require? Which elements should we not require, if any? Are 
there additional elements we should consider adding in order to ensure 
that the compliance programs effectively advance their intended purpose 
of facilitating equal access to broadband? Although we seek comment on 
each of these elements, we note that our goal is to grant each 
broadband provider the flexibility to develop and maintain a plan that 
contains the required elements and serves our intended purposes without 
prescribing a particular formula as to how each required element should 
be implemented. We seek comment on whether such flexibility will be 
beneficial or detrimental to the implementation of effective internal 
compliance programs by providers.
    24. Implementing Written Policies and Procedures. We seek comment 
on requiring providers to implement internal written policies and 
procedures with the goal of preventing digital discrimination of access 
and promoting equal access to broadband internet access service. In the 
compliance program, are written policies and procedures necessary? What 
should those internal written policies and procedures include? Who 
should be knowledgeable about the rules and practices within the 
organization? How often should these written rules and procedures be 
reviewed, revised, and updated? Are there any available models that 
providers can look to when devising their internal policies and 
procedures to prevent digital discrimination of access and promote 
equal access?
    25. Designating a Compliance Officer and/or Compliance Committee. 
We seek comment on requiring service providers to appoint a designated 
compliance officer or establish a compliance committee to ensure 
compliance with the program's requirements and timely cooperation with 
the Commission upon request. Is it necessary to designate a compliance 
officer or establish a compliance committee for the successful 
implementation of the compliance program? What should the 
qualifications of the selected compliance officer and compliance 
committee members be? What should the structure of a compliance 
committee be, how often should it meet, and what should be its 
functions? Should the designated compliance officer be required to 
provide that certification?
    26. Conducting Effective Training on Commission Rules. We seek 
comment on requiring service providers to conduct periodic training for 
relevant employees on the Commission's digital discrimination of access 
rules. Who should conduct the training, who should be required to take 
the training, and how often should they be required to do so? How 
should the substantive content of the training be developed and what 
should it cover? Should the content of the training be certified or 
approved by the Commission in some manner? If so, how often should such 
certification or approval take place? Providers likely already have 
compliance programs and employee trainings to maintain compliance with 
regulatory requirements at many levels. What would be the additional 
burden for providers to incorporate compliance with digital 
discrimination of access rules into their existing compliance programs?
    27. Developing Effective Lines of Reporting and Communication. We 
propose requiring broadband providers to put in place mechanisms and 
processes that: (1) encourage the internal reporting of matters that 
may constitute, or lead to, digital discrimination of access or 
otherwise impede equal access to broadband service; (2) channel those 
concerns to the compliance officer and/or compliance committee for 
evaluation and response, if warranted; and (3) ensure effective ``up 
the chain'' reporting by compliance officers and committees so senior 
officers are made aware of these matters and can take appropriate 
action to prevent their recurrence. We seek comment on this proposal. 
What system(s) can providers implement to encourage employees to raise 
concerns about potentially problematic conduct? What should be the 
reporting chain above the compliance officer and compliance committee 
to ensure that equal access concerns are given the highest possible 
priority by the provider? Are there other mechanisms and processes that 
we should require to achieve effective lines of reporting and 
communication regarding equal-access-related matters?
    28. Conducting Internal Monitoring and Auditing. We seek comment on 
requiring broadband providers to perform periodic reviews of the 
compliance program and respond quickly to correct problems when they 
are detected. Who should conduct such periodic reviews and how often 
should they be conducted? What systems can providers put in place to 
evaluate the overall effectiveness of the program and its compliance 
with the requirements we ultimately adopt for such programs?
    29. Responding Promptly to Detected Problems and Undertaking 
Corrective Action. We seek comment on what requirements we should adopt 
regarding the handling of problems reported by the compliance officer 
or committee to senior management, especially when no corrective action 
has been taken. What obligations would a compliance officer or 
committee have under those circumstances? What recourse would a 
compliance officer or committee have if a provider routinely fails to 
address reported violations of our rules? Should we require, in such 
instances, that the compliance officer report the matter to the 
Commission? Could a compliance officer truthfully certify that a 
compliance program consistent with our rules has been maintained 
throughout the certification period if reported violations of our rules 
are routinely ignored by the provider? We seek comment on these 
matters.

Evaluations of Recently Completed, Pending, and Planned Projects

    30. We seek comment on requiring providers to conduct annually an 
internal evaluation of recently completed, pending, and planned 
deployment, upgrade, and maintenance projects affecting 500 or more 
housing units. With respect to each such project, the internal 
evaluation should consist of a comparison of the demographics of the 
communities served by that project with the demographics of the 
Metropolitan Statistical Area (MSA) encompassing those served 
communities. The Centers for Disease Control and Prevention define MSA 
as ``a geographic entity based on a county or a group of counties with 
at least one urbanized area with a population of at least 50,000 and 
adjacent counties with economic ties to the central area.'' While the 
purpose of our proposal to require submission of annual reports to the 
Commission is to promote greater transparency regarding what 
communities are served by recently completed projects, the goal of our 
proposal to require periodic internal evaluation of large-scale 
projects is to facilitate close internal scrutiny of the provider's 
policies and practices affecting broadband access, determine whether 
those policies and practices advance or impede equal access to 
broadband service, and promote accountability regarding policies and 
practices that impede (or threaten to impede) equal access without 
adequate justification. Moreover, while our proposal regarding annual 
reporting would apply only to recently completed (or substantially 
completed) projects of

[[Page 6483]]

a certain size, our proposal with respect to periodic internal 
evaluations would also apply to pending and planned projects. We seek 
comment on this proposal, and we specifically seek comment on: (1) how 
we should define ``pending'' projects and ``planned'' projects under 
this proposal; and (2) whether MSAs are the appropriate geographic 
comparator for the internal evaluation of covered projects.
    31. We do not propose to prescribe the manner in which providers 
compare the demographics of served communities with the demographics of 
the MSAs encompassing those communities. We would require only that 
such comparisons be conducted with analytical rigor and in good faith 
using official data and reports of the U.S. Census Bureau, and that 
they be reasonably designed to uncover meaningful disparities between 
the reported demographics of served communities and the reported 
demographics of the MSAs encompassing those served communities. 
According to the Census Bureau, an MSA consists of one or more counties 
that contain a city of 50,000 or more inhabitants, or contain a Census 
Bureau-defined urbanized area (UA) and have a total population of at 
least 100,000 (75,000 in New England). While we would never expect 
precise numerical alignment with respect to any single project, we 
believe that routinely conducting these comparisons will give providers 
a better sense of what communities are being served (and not served) by 
their projects over time, and will help to ``smoke out'' policies and 
practices that discriminate without adequate justification. We seek 
comment on this proposal.

Evaluations of Policies and Practices

    32. Evaluation and Assessment of Policies and Practices. We seek 
comment on requiring providers to: (1) periodically evaluate their 
policies and practices affecting broadband access to determine whether 
they differentially impact consumers' access to broadband internet 
access service based on income level, race, ethnicity, color, religion, 
or national origin, or otherwise impede equal access to broadband 
internet access service; and (2) report to senior management annually, 
and in writing, regarding the results of such evaluation. As noted 
above, the proposed requirement that providers periodically determine 
the demographics of communities served by designated broadband projects 
is intended to permit an assessment, over time, of whether the 
provider's broadband-related policies are effectively impeding equal 
access to broadband service. Those assessments should lead to critical 
examination of whether any policies and practices impeding such equal 
access are necessary and justified by legitimate business 
considerations and whether alternative policies and practices might 
reasonably be adopted and implemented in their place. We propose that 
compliance officers and/or committees be required to conduct such 
annual assessments and report annually to senior management, in 
writing, the results of such evaluations and assessments. This process 
will require providers to closely scrutinize policies and practices 
producing disparate impacts on prohibited bases or otherwise impeding 
equal access to broadband service. We believe these requirements are 
necessary to ensure that equal access to broadband service remains a 
top priority for providers, in fulfillment of Congress's instruction 
that the Commission ``take steps to ensure that all people of the 
United States benefit from equal access to broadband internet access 
service.'' We seek comment on this proposal.

Certification

    33. Certification of Completion. We propose requiring providers to 
submit, in conjunction with the annual report proposed above, a 
certification that a compliance program satisfying all requirements 
finally adopted by the Commission was in place during the calendar year 
covered by the annual report. We propose that the certification be 
attested to by an officer and engineer as occurs with respect to the 
BDC, and that the provider's designated compliance officer (or the 
chair of the compliance committee) certify the same to the certifying 
officer and engineer. We seek comment on this proposal, including 
whether the designated compliance officer (or chair of the compliance 
committee) should be required to provide a certification directly to 
the Commission.

Exemptions

    34. We also seek comment on whether any providers should be 
exempted from the proposed requirement to implement and maintain an 
internal compliance program meeting specified standards based on their 
size, footprint, or niche service area. Should we exempt providers that 
primarily serve consumers at the rural and Tribal level and, if so, 
why? What other providers should be exempted from these requirements, 
under what circumstances, and why? We seek comment on requiring 
providers who are entitled to an exemption under our rules to file a 
certification of exemption in lieu of a certification of compliance in 
conjunction with the annual report.

Recording and Retention Requirements

    35. We seek comment on what records providers should be required to 
retain, and for how long, relating to the internal assessments of the 
projects described in the preceding paragraphs. Once a summary report 
of the internal assessment for a specific project is completed, should 
the provider be required to retain the underlying documents for some 
period of time? Should there be different retention periods for the 
summary reports than for the underlying documents?

Office of Civil Rights

    36. We seek further, focused comment on establishing an Office of 
Civil Rights, as both advocates and broadband service providers have 
urged. In particular, we seek comment on the potential benefits 
establishing such an office. For example, would such an office be 
helpful in developing and maintaining the expertise to evaluate the 
effects of Commission policy initiatives on historically marginalized 
communities? Could it assist in determining when prohibited 
discrimination has occurred and aid in developing remedies for such 
discrimination? Might it help in evaluating claims and possible 
patterns of digital discrimination of access? And could it aid in 
monitoring informal complaints alleging digital discrimination of 
access and other forms of prohibited discrimination, as well as in the 
mediation process we have outlined in the Order? Why or why not? What 
other benefits might be associated with establishing an Office of Civil 
Rights? For example, could it work with broadband service providers to 
proactively mitigate potential instances of prohibited discrimination? 
Could such an office collaborate with broadband service providers and 
Federal and state governments to develop broadband adoption and digital 
literacy skills training that could be used on a nationwide basis? 
Could such an office be employed to address other substantive 
Commission policy issues and processes beyond matters arising under 
section 60506? If so, what other issues might an Office of Civil Rights 
oversee or how could it support other bureaus and offices in the 
Commission? Finally, what are the potential challenges associated with 
establishing an Office of Civil Rights? How should the Commission 
address these challenges? What are the costs associated with 
establishing an Office of

[[Page 6484]]

Civil Rights? How should the Commission structure and staff such an 
office? What other structural and organizational changes would be 
required to establish such an office?

Other Efforts To Promote Digital Equity and Inclusion

    37. Digital Equity. The Commission, as part of its continuing 
effort to advance digital equity for all, including people of color, 
persons with disabilities, persons who live in rural or Tribal areas, 
and others who have been historically underserved, marginalized, and 
adversely affected by persistent poverty and inequality, invites 
comments on any equity-related considerations and benefits (if any) 
that may be associated with the proposals and issues discussed herein. 
We define the term ``equity'' consistent with Executive Order 13985 as 
the consistent and systematic fair, just, and impartial treatment of 
all individuals, including individuals who belong to underserved 
communities that have been denied such treatment, such as Black, 
Latino, and Indigenous and Native American persons, Asian Americans and 
Pacific Islanders and other persons of color; members of religious 
minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) 
persons; persons with disabilities; persons who live in rural areas; 
and persons otherwise adversely affected by persistent poverty or 
inequality. Specifically, we seek comment on how our proposals may 
promote or inhibit advances in diversity, equity, inclusion, and 
accessibility, as well as the scope of the Commission's relevant legal 
authority.

Procedural Matters

    38. We have also prepared an Initial Regulatory Flexibility 
Analysis (IRFA) concerning the potential impact of the rule and policy 
changes contained in the Further Notice. Comments must be filed by the 
deadlines for comments on the Further Notice indicated on the first 
page of this document and must have a separate and distinct heading 
designating them as responses to the IRFA.
    39. Paperwork Reduction Act. The Further Notice also may contain 
proposed new and revised information collection requirements. The 
Commission, as part of its continuing effort to reduce paperwork 
burdens, invites the general public and OMB to comment on the 
information collection requirements contained in this document, as 
required by the Paperwork Reduction Act of 1995, Public Law 104-13. In 
addition, pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment 
on how we might further reduce the information collection burden for 
small business concerns with fewer than 25 employees.

Ordering Clauses

    40. It is further ordered that the Commission's Office of the 
Secretary shall send a copy of this Report and Order and Further Notice 
of Proposed Rulemaking, including the Final Regulatory Flexibility 
Analysis and Initial Regulatory Flexibility Analysis, to the Chief 
Counsel for Advocacy of the Small Business Administration.

Initial Regulatory Flexibility Analysis

    41. As required by the Regulatory Flexibility Act of 1980, as 
amended (RFA), the Commission has prepared this Initial Regulatory 
Flexibility Analysis (IRFA) of the possible significant economic impact 
on small entities by the policies and rules proposed in this Further 
Notice of Proposed Rulemaking (Further Notice). The Commission requests 
written public comments on this IRFA. Comments must be identified as 
responses to the IRFA and must be filed by the deadlines for comments 
provided on the first page of the Further Notice. The Commission will 
send a copy of the Further Notice, including this IRFA, to the Chief 
Counsel for Advocacy of the Small Business Administration (SBA). In 
addition, the Further Notice and IRFA (or summaries thereof) will be 
published in the Federal Register.

Need for, and Objectives of, the Proposed Rules

    42. In the Further Notice, the Commission takes additional steps to 
advance its efforts to fulfill the congressional direction in section 
60506 of the Infrastructure Act to facilitate equal access to broadband 
internet access service by preventing digital discrimination of access, 
proposing rules that will address disparities in broadband availability 
and service offerings. Specifically, the Further Notice seeks comment 
on affirmative obligations that might be undertaken by broadband 
providers by complementing proposed rules adopted in the Report and 
Order, with a focus on broadband providers' day-to-day business 
practices that might, in some instances, differentially impact 
consumers' access to broadband on prohibited bases. The Further Notice 
also proposes to require the reporting of this information on a state-
by-state or territory-by-territory basis in a yearly supplement to the 
BDC so the public can see not only where broadband coverage is 
provided, but where and how providers are currently investing in their 
broadband networks and what communities are benefiting from those 
investments. Additionally, the Further Notice proposes to require 
providers to establish formal compliance programs related to digital 
discrimination of access and to conduct regular, internal assessments 
of what communities are served (and not served) by recently completed, 
pending, and planned large-scale broadband projects and whether their 
relevant policies and practices might differentially impact consumers' 
access to broadband service.

Legal Basis

    43. The proposed action is authorized pursuant to sections 1, 2, 
4(i)-(j), 303(r) of the Communications Act of 1934, as amended, 47 
U.S.C. 151, 152, 154(i)-(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.

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

    44. The RFA directs agencies to provide a description of and, where 
feasible, an estimate of the number of small entities that may be 
affected by the proposed rules and by the rule revisions on which the 
Further Notice seeks comment, if adopted. The RFA generally defines the 
term ``small entity'' as having the same meaning as the terms ``small 
business,'' ``small organization,'' and ``small governmental 
jurisdiction.'' In addition, the term ``small business'' has the same 
meaning as the term ``small-business concern'' under the Small Business 
Act. A ``small-business concern'' is one which: (1) is independently 
owned and operated; (2) is not dominant in its field of operation; and 
(3) satisfies any additional criteria established by the SBA.
    45. 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

[[Page 6485]]

States, which translates to 32.5 million businesses.
    46. 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.
    47. 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 into the category of ``small governmental 
jurisdictions.''
    48. 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.
    49. The SBA small business size standard for Wired 
Telecommunications Carriers classifies firms having 1,500 or fewer 
employees as small. U.S. Census Bureau data for 2017 show that there 
were 3,054 firms that operated in this industry for the entire year. Of 
this number, 2,964 firms operated with fewer than 250 employees. 
Additionally, based on Commission data in the 2021 Universal Service 
Monitoring Report, as of December 31, 2020, there were 5,183 providers 
that reported they were engaged in the provision of fixed local 
services. Of these providers, the Commission estimates that 4,737 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    50. 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 2021 Universal Service 
Monitoring Report, as of December 31, 2020, there were 5,183 providers 
that reported they were fixed local exchange service providers. Of 
these providers, the Commission estimates that 4,737 providers have 
1,500 or fewer employees. Consequently, using the SBA's small business 
size standard, most of these providers can be considered small 
entities.
    51. Incumbent Local Exchange Carriers (Incumbent LECs). Neither the 
Commission nor the SBA have developed a small business size standard 
specifically for incumbent local exchange 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 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 1,227 providers 
that reported they were incumbent local exchange service providers. Of 
these providers, the Commission estimates that 929 providers have 1,500 
or fewer employees. Consequently, using the SBA's small business size 
standard, the Commission estimates that the majority of incumbent local 
exchange carriers can be considered small entities.
    52. 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 a SBA small business size standard. The SBA small 
business size standard for Wired Telecommunications Carriers classifies 
firms having 1,500 or fewer employees as small. U.S. Census Bureau data 
for 2017 show that there were 3,054 firms that operated in this 
industry for the entire year. Of this number, 2,964 firms operated with 
fewer than 250 employees. Additionally, based on Commission data in the 
2021 Universal Service Monitoring Report, as of December 31, 2020, 
there were 3,956 providers that reported they were competitive local 
exchange service providers. Of these providers, the Commission 
estimates that 3,808 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
    53. We have included small incumbent LECs in this present RFA 
analysis. As noted above, a ``small business'' under the RFA is one 
that, inter alia, meets the pertinent small-business size standard 
(e.g., a telephone communications business having 1,500 or fewer 
employees) and ``is not dominant in its field of operation.'' The SBA's 
Office of Advocacy contends that, for RFA purposes, small incumbent 
LECs are not dominant in their field of operation because any such 
dominance is not ``national'' in scope. We have therefore included 
small incumbent LECs in this RFA analysis, although we emphasize that 
this RFA action has no

[[Page 6486]]

effect on Commission analyses and determinations in other, non-RFA 
contexts.
    54. Interexchange Carriers (IXCs). Neither the Commission nor the 
SBA have developed a small business size standard specifically for 
Interexchange Carriers. Wired Telecommunications Carriers is the 
closest industry with a SBA small business size standard. The SBA small 
business size standard for Wired Telecommunications Carriers classifies 
firms having 1,500 or fewer employees as small. U.S. Census Bureau data 
for 2017 show that there were 3,054 firms that operated in this 
industry for the entire year. Of this number, 2,964 firms operated with 
fewer than 250 employees. Additionally, based on Commission data in the 
2021 Universal Service Monitoring Report, as of December 31, 2020, 
there were 151 providers that reported they were engaged in the 
provision of interexchange services. Of these providers, the Commission 
estimates that 131 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, the 
Commission estimates that the majority of providers in this industry 
can be considered small entities.
    55. 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.
    56. Other Toll Carriers. Neither the Commission nor the SBA has 
developed a definition for small businesses specifically applicable to 
Other Toll Carriers. This category includes toll carriers that do not 
fall within the categories of interexchange carriers, operator service 
providers, prepaid calling card providers, satellite service carriers, 
or toll resellers. Wired Telecommunications Carriers is the closest 
industry with a SBA small business size standard. The SBA small 
business size standard for Wired Telecommunications Carriers classifies 
firms having 1,500 or fewer employees as small. U.S. Census Bureau data 
for 2017 show that there were 3,054 firms in this industry that 
operated for the entire year. Of this number, 2,964 firms operated with 
fewer than 250 employees. Additionally, based on Commission data in the 
2021 Universal Service Monitoring Report, as of December 31, 2020, 
there were 115 providers that reported they were engaged in the 
provision of other toll services. Of these providers, the Commission 
estimates that 113 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
    57. Wireless Telecommunications Carriers (except Satellite). This 
industry comprises establishments engaged in operating and maintaining 
switching and transmission facilities to provide communications via the 
airwaves. Establishments in this industry have spectrum licenses and 
provide services using that spectrum, such as cellular services, paging 
services, wireless internet access, and wireless video services. The 
SBA size standard for this industry classifies a business as small if 
it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show 
that there were 2,893 firms in this industry that operated for the 
entire year. Of that number, 2,837 firms employed fewer than 250 
employees. Additionally, based on Commission data in the 2021 Universal 
Service Monitoring Report, as of December 31, 2020, there were 797 
providers that reported they were engaged in the provision of wireless 
services. Of these providers, the Commission estimates that 715 
providers have 1,500 or fewer employees. Consequently, using the SBA's 
small business size standard, most of these providers can be considered 
small entities.
    58. 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.\1\ 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.
---------------------------------------------------------------------------

    \1\ Id. The available U.S. Census Bureau data does not provide a 
more precise estimate of the number of firms that meet the SBA size 
standard. We also note that according to the U.S. Census Bureau 
glossary, the terms receipts and revenues are used interchangeably, 
see https://www.census.gov/glossary/#term_ReceiptsRevenueServices.
---------------------------------------------------------------------------

    59. Local Resellers. Neither the Commission nor the SBA have 
developed a small business size standard specifically for Local 
Resellers. Telecommunications Resellers is the closest industry with a 
SBA small business size standard. The Telecommunications Resellers 
industry comprises establishments engaged in purchasing access and 
network capacity from owners and operators of telecommunications 
networks and reselling wired and wireless telecommunications services 
(except satellite) to businesses and households. Establishments in this 
industry resell telecommunications; they do not operate transmission 
facilities and infrastructure. Mobile virtual network operators (MVNOs) 
are included in this industry. The SBA small business size standard for 
Telecommunications Resellers classifies a business as small if it has 
1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 
1,386 firms in this industry provided resale services for the entire 
year. Of that number, 1,375 firms operated with fewer than 250 
employees. Additionally, based on Commission data in the 2021 Universal 
Service Monitoring Report, as of December 31,

[[Page 6487]]

2020, there were 293 providers that reported they were engaged in the 
provision of local resale services. Of these providers, the Commission 
estimates that 289 providers have 1,500 or fewer employees. 
Consequently, using the SBA's small business size standard, most of 
these providers can be considered small entities.
    60. 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.
    61. 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

    62. The Further Notice proposes two sets of affirmative obligations 
for broadband providers in furtherance of our mandate to facilitate 
equal access to broadband internet access service, including by 
preventing digital discrimination of access by requiring broadband 
providers to: (1) submit an annual, publicly available supplement to 
the Broadband Data Collection (BDC) describing, on a state-by-state or 
territory-by-territory basis, any large-scale broadband deployment, 
upgrade, and maintenance projects that were completed or substantially 
completed during the preceding calendar year and the communities served 
by such projects; and (2) establish a mandatory internal compliance 
program requiring regular internal assessment of (a) what communities 
are served by recent, pending and planned large-scale projects and (b) 
whether the provider's broadband-related policies and practices might 
differentially impact consumers' access to broadband without adequate 
technical or economic justification.
    63. The Further Notice proposes to require the annual report as a 
supplement to the year-end BDC, and we assume that broadband providers 
would use the same criteria and data fields that are used in the BDC. 
The Commission seeks comment on whether the experts who certify the BDC 
submissions should also be required to certify the proposed annual 
report. The Commission also proposes that each provider adopt and 
maintain a formal internal compliance program that includes, at a 
minimum, elements from previously effective compliance programs: (1) 
developing and implementing written policies and procedures; (2) 
designating a compliance officer and/or compliance committee; (3) 
conducting effective training and education regarding the purposes and 
operation of the compliance program; (4) developing effective lines of 
reporting and communication; and (5) conducting internal monitoring and 
auditing. We propose to grant each broadband provider the flexibility 
to develop and maintain a plan that contains the required elements and 
serves our intended purposes without prescribing a particular formula 
as to how each required element should be implemented.

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

    64. The RFA requires an agency to describe any significant, 
specifically small business, alternatives that it has considered in 
reaching its proposed approach, which may include the following four 
alternatives (among others): ``(1) the establishment of differing 
compliance or reporting requirements or timetables that take into 
account the resources available to small entities; (2) the 
clarification, consolidation, or simplification of compliance and 
reporting requirements under the rules for such small entities; (3) the 
use of performance rather than design standards; and (4) an exemption 
from coverage of the rule, or any part thereof, for such small 
entities.''
    65. The Further Notice seeks comment on whether any of the proposed 
filing, recordkeeping and reporting requirements can be minimized for 
small entities. For example, we request comment on whether existing 
data may be used with or in place of the proposed annual report to 
promote transparency in broadband investments. We also seeks comment on 
whether any broadband providers should be exempted from the requirement 
to submit an annual report or to implement and maintain an internal 
compliance program based on their size, footprint, or service area, 
including rural and Tribal areas. Finally, the Commission seeks comment 
on whether any of the costs associated with our digital discrimination 
of access compliance requirements can be alleviated for small entities.

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

    None.

Federal Communications Commission.
Marlene Dortch,
Secretary.
[FR Doc. 2024-01996 Filed 1-31-24; 8:45 am]
BILLING CODE 6712-01-P


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