Anti Digital Redlining Act of 2021
Bill: H.R.4875 | Sponsor: Rep. Clarke, Yvette D. (D-NY)
Policy area: Crime and Law Enforcement

Summary:
Anti Digital Redlining Act of 2021
This bill prohibits an internet service provider (ISP) from discriminating in decisions about deploying or upgrading broadband service in a particular geographic area based on residents' race, income, or other factors (i.e., digital redlining). It also prevents some restrictions on the choice of telecommunications service providers in multi-dwelling units.
The Federal Communications Commission (FCC) must solicit public comments on criteria to determine whether an ISP is discriminating in deployment or upgrading decisions and related matters. Based on the comments, the FCC must issue rules to prevent such discrimination. An individual may file a complaint of discriminatory conduct that violates the bill's provisions or applicable rules with the FCC. The bill authorizes the FCC to remedy violations, including by requiring (subject to limitations) an ISP to provide services in a geographic area.
Additionally, the bill prohibits ISPs and multichannel video programming distributors (e.g., cable operators) from engaging in certain conduct that restricts a multi-dwelling unit resident's choice of internet, cable, and related services. Units must also allow ISPs and distributors reasonable access to their premises. The bill permits residents to sue for violations and otherwise provides for enforcement through FCC administrative processes.
The FCC must also analyze the use of franchise agreements between telecommunications service providers and municipal governments on the price of, quality of, and competition among telecommunications services in the local market. These agreements set out the terms under which a telecommunications service provider is authorized by a regulator to operate.

To require the Federal Communications Commission to issue a notice of 
 inquiry related to digital redlining, to prohibit digital redlining, 
                        and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Anti Digital 
Redlining Act of 2021''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings and purpose.
Sec. 3. Notice of inquiry to assess factors that indicate digital 
                            redlining is occurring.
Sec. 4. Rules required to prevent digital redlining.
Sec. 5. Public complaints at the Commission.
Sec. 6. Enforcement of antiredlining provision.
Sec. 7. Prohibition of ISP or MVPD exclusive agreements with multi-
                            dwelling units.
Sec. 8. Study of the impact of franchising agreements on consumers and 
                            competition.
Sec. 9. No forbearance or waiver.
Sec. 10. No preemption of consistent State or local authority.
Sec. 11. Definitions.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds the following:
            (1) Many consumers pay as much for DSL as they do for 
        fiber, despite fiber offering significantly faster speeds and 
        greater reliability.
            (2) Internet service providers are less likely to upgrade 
        to fiber as a transmission medium in low-income communities. 
        Households where fiber networks are deployed have a median 
        income 34 percent higher than those with only DSL.
            (3) Communities of color are more likely to have slower and 
        less reliable internet service. This disparity creates 
        significant barriers to accessing employment opportunities, 
        educational opportunities, healthcare resources, and diminishes 
        opportunities for civic engagement.
            (4) The creation of significant disparities in internet 
        service within a geographic area imposes significant costs not 
        only on the individuals with slower or less reliable service, 
        but on government at the local, State and Federal level by 
        requiring governments to provide non-digital as well as digital 
        means of accessing benefits, paying bills, sharing information, 
        and otherwise choosing between either offering redundant non-
        digital means of interaction or excluding residents without 
        access to high speed, reliable broadband.
            (5) Communities with poor quality broadband have difficulty 
        attracting businesses, attracting new residents, and have 
        difficulty competing with communities with superior broadband 
        options available.
            (6) Companies can deploy fiber to most lower income 
        communities and generate sufficient revenue to recoup the cost 
        of deployment.
            (7) Broadband is an essential service and consumers, 
        regardless of income, race, ethnicity, color or national origin 
        deserve affordable reliable broadband.
            (8) Competition between internet service providers within a 
        specific neighborhood is an important means of ensuring quality 
        service and lower prices to the residents of that neighborhood. 
        By contrast, neighborhoods with a single provider often suffer 
        from lower quality service and higher prices.
            (9) Internet service providers, State and local 
        governments, and the Federal Communications Commission have all 
        identified arrangements by ISPs between landlords, housing 
        associations, and other relevant private entities designed 
        (collectively ``landlords'') to thwart access by competitors as 
        a significant contributing factor to digital redlining by 
        preventing or discouraging access to superior service and 
        eliminating the threat of competition to the preferred 
        provider. These arrangements may take the form of exclusive 
        access for a single provider, discounts to residents on rent, 
        utility payments, or other landlord generated charges, 
        additional expenses to either the resident or the competing 
        provider to access and install necessary equipment or inside 
        wiring. Landlords may also impose restrictions on access by 
        rival providers for purposes of marketing rival services, or 
        otherwise limit communication between rival providers and 
        residents.
            (10) Although the Federal Communications Commission 
        formally prohibited express exclusive agreements between 
        landlords and broadband providers in 2007, these arrangements 
        continue to persist as a consequence of loopholes and the lack 
        of an effective enforcement mechanism to ensure swift access of 
        willing competitors to willing customers.
            (11) Even where local and State authorities have reached 
        agreements with competing internet service providers to deploy 
        in neighborhoods suffering redlining, the presence of these 
        agreements has thwarted competitive entry and aggravated 
        digital redlining.
            (12) As a consequence of agreements between landlords and 
        internet service providers, Americans can lose the benefits of 
        competition, leading to higher prices and poorer service.
            (13) Traditionally, wireless technologies have been less 
        subject to digital redlining because a single tower can cover 
        an area of many miles. Newer wireless technologies, such as 5G, 
        employ towers with much smaller coverage areas--sometimes 
        requiring multiple towers to provide adequate coverage within a 
        neighborhood. This has generated concern that, without 
        Congressional action, communities that now suffer digital 
        redlining from wireline services may suffer similar wireless 
        digital redlining in the future.
            (14) Easements and access to private property for the 
        purpose of providing critical and competing services are a 
        well-established regulatory tool, and do not constitute an 
        unconstitutional taking.
    (b) Purpose.--It is the purpose of this Act--
            (1) to identify and remedy ``digital redlining'', 
        regardless of the level of competition in the market as a 
        whole, by ensuring all Americans, especially those in 
        traditionally underserved or marginalized communities, have 
        access to competing broadband networks at the same quality of 
        service, at reasonable prices, as available in other similarly 
        situated communities with higher median incomes or different 
        demographic makeup;
            (2) to empower and require the Federal Communications 
        Commission to identify what constitutes digital redlining, and 
        to empower and require the Commission to enact regulations 
        designed to eliminate digital redlining; and
            (3) to enable competing broadband providers frustrated by 
        exclusive arrangements between rival providers and landlords to 
        serve willing customers.

SEC. 3. NOTICE OF INQUIRY TO ASSESS FACTORS THAT INDICATE DIGITAL 
              REDLINING IS OCCURRING.

    Not later than 180 days after the date of the enactment of this 
Act, the Commission shall issue a notice of inquiry that seeks public 
comment on the following:
            (1) Criteria necessary to determine where ISPs are not 
        upgrading systems or deploying new systems capable of 
        supporting robust broadband access of comparable quality with 
        the broader community.
            (2) Criteria to define the granularity of the geographic 
        area necessary to determine whether discriminatory factors are 
        being used to delay deployment of robust broadband.
            (3) The reasons ISPs use to determine where facilities are 
        upgraded to provide robust broadband and what factors deter 
        deployment in those granular areas that are not served.
            (4) The disparity investment in high-income areas compared 
        to low-income areas within the geographic service area of an 
        ISP.
            (5) Disparity of investment based on race.
            (6) Availability of fiber to the home, or deployment of 
        fiber-to-the-curb or headend, within a geographic service area.
            (7) Degradation in quality of service within geographic 
        service area over a given period of time.
            (8) Tier flattening in rural and urban service areas.
            (9) Network resiliency issues, including frequency of 
        outages.
            (10) The reliability of networks with respect to the 
        recovery of outages.

SEC. 4. RULES REQUIRED TO PREVENT DIGITAL REDLINING.

    (a) Rules Required.--Not later than 2 years after the date of the 
enactment of this Act and based on the findings from the notice of 
inquiry under section 3, the Commission shall promulgate rules that do 
the following:
            (1) Overcome identified barriers from such notice of 
        inquiry, including rules to prevent discrimination of access 
        based on income level, race, color, religion, or national 
        origin.
            (2) Define the granularity of the geographic area in which 
        the Commission considers compliance with the rules adopted, 
        taking into account whether information at a census-block level 
        or a more discrete level is needed to identify areas where 
        redlining is occurring.
            (3) Determine what factors would permit an ISP to not 
        deploy to the entirety of a clearly defined geographic area 
        with comparable robust broadband service, taking into account 
        that deployment planning for areas may proceed in differing 
        stages. In developing this determination, the Commission shall 
        establish a process by which a provider may request an 
        exemption from a requirement to deploy robust broadband to the 
        entirety of a clearly defined geographic area upon a showing 
        that factors other than income level, race, color, religion, or 
        national origin are the causes of the inability to deploy 
        broadband.
    (b) Commission Policies.--The Commission shall ensure that the 
policies of the Commission promote equal access to robust broadband by 
prohibiting deployment discrimination based on the income level of an 
area, the predominant race or ethnicity composition of an area, or 
other factors the Commission determines based on the findings in the 
record developed from this any rule promulgated under this section and 
the notice of inquiry under section 3.

SEC. 5. PUBLIC COMPLAINTS AT THE COMMISSION.

    An individual may file a complaint using the public complaint 
system of the Commission for a violation of this Act. A complaint shall 
specify which provision of this Act or rule of the Commission is 
allegedly violated. The Commission shall adopt such rules as are 
necessary to facilitate the filing and enforcement of any such 
complaint.

SEC. 6. ENFORCEMENT OF ANTIREDLINING PROVISION.

    (a) Commission Orders.--The Commission may issue an order to remedy 
a violation of a rule issued pursuant to section 4, which may include 
any of the following:
            (1) An order to provide interconnection to any other ISP 
        willing to provide service to the area found to be redlined and 
        to whatever additional area the Commission may determine is 
        necessary to make service to the redlined area reasonably 
        profitable and sustainable.
            (2) An order to compel an ISP to provide service to the 
        area found to be redlined--
                    (A) which shall detail the services required to be 
                offered and may require that the prices offered for 
                such services be just, reasonable, and affordable to 
                the residents of the relevant geographic area; and
                    (B) which may not threaten the commercial viability 
                of the ISP.
            (3) An order to require a party not subject to the 
        jurisdiction of the Commission to provide access to any 
        physical premises, wiring, or facility.
            (4) Any other relief or penalty authorized under this Act.
    (b) Federal Funds.--
            (1) In general.--For any ISP that receives Federal funds on 
        or after the date of the enactment of this section for the 
        purpose of providing service to a geographic area that includes 
        an area subject to redlining, the Commission shall assess the 
        cost of provision of robust broadband to the redlined area and 
        shall require the ISP to return the funds for that portion of 
        the grant that should have provided service to that area. The 
        Commission shall include interest from the date of the 
        disbursement of the Federal funds to the date of payment for 
        any funds returned under this paragraph.
            (2) Use of funds.--The Commission may use any funds 
        returned under paragraph (1) for any broadband deployment or 
        digital inclusion fund supervised by the Commission.

SEC. 7. PROHIBITION OF ISP OR MVPD EXCLUSIVE AGREEMENTS WITH MULTI-
              DWELLING UNITS.

    (a) Exclusive Agreements Prohibited.--An ISP and MVPD may not, 
individually or jointly, enter into an agreement with a multi-dwelling 
unit that limits the ability of an ISP or MVPD (or that has the effect 
of such limitation) from serving a resident of the MDU. Nor may an MDU 
unreasonably restrict access to an ISP or MVPD to which a resident 
subscribes.
    (b) Incentives Prohibited.--A landlord may not offer an incentive 
to a resident to select a specific ISP or MVPD, or any action designed 
to prevent or discourage any resident from subscribing to any ISP or 
MVPD.
    (c) Landlord Inducement Prohibited.--An ISP or MVPD may not offer 
an inducement to a landlord that--
            (1) promotes or favors any ISP or MVPD with regard to 
        marketing, obtaining or retaining residents of a multi-dwelling 
        unit as subscribers; or
            (2) in any way discourage a resident of a multi-dwelling 
        unit from subscribing to an ISP or MVPD the resident chooses.
    (d) Public Availability of Agreements.--An ISP or MVPD shall make 
any agreement made by an ISP or MVPD with a multi-dwelling unit 
available to the public.
    (e) Access to Premises, Access to Wiring.--An ISP and MVPD shall 
have reasonable access to the premises of the multi-dwelling unit, and 
to any wiring or other resource or facility controlled by the multi-
dwelling unit necessary to provide service. A multi-dwelling unit may 
require all ISPs or MVPDs to share a common set of conduits or wires to 
minimize the need for disruptive access and any requirement or charge 
for use of common conduits or wires--
            (1) shall be just, reasonable, and non-discriminatory;
            (2) does not impose an undue burden on an ISP or MVPD 
        seeking to provide service;
            (3) does not unreasonably interfere with the ability of an 
        ISP or MVPD to upgrade or repair its network; and
            (4) can accommodate the speed, quality of service, and 
        channel capacity the ISP or MVPD offers its subscribers.
    (f) Regulations Required.--
            (1) Commencement of proceeding.--Not later than 180 days 
        after the date of the enactment of this Act, the Commission 
        shall commence a proceeding to determine the rules that are 
        necessary to effectuate the prohibitions described in 
        subsections (a) through (e).
            (2) Issuance of rules.--Not later than 180 days after the 
        date on which the proceeding is commenced pursuant to paragraph 
        (1), the Commission shall publish the rules in the Federal 
        Register. The rules shall contain the following requirements:
                    (A) Compensation for access to and use of wiring.--
                Ensure that a multi-dwelling unit or another owner of a 
                premises, wiring, or other facility to which access is 
                necessary to meet the requirements of this Act receive 
                just and reasonable compensation for access to, and use 
                of, their property, which shall be charged on a non-
                discriminatory basis to each ISP and MVPD seeking such 
                access and use. A multi-dwelling unit may not charge an 
                ISP or MVPD to enter the multi-dwelling unit to provide 
                service within the residence of a subscriber, or to 
                provide customer premise equipment that does not 
                require any physical modification of the residence.
                    (B) Charges for damages, deposit, proof of 
                insurance.--A multi-dwelling unit, resident, or other 
                entity that suffers damage to its physical property may 
                demand reasonable compensation from the ISP or MVPD 
                responsible, including the cost of repair. A multi-
                dwelling unit may require a reasonable deposit or 
                proof, or both, of reasonable insurance coverage from 
                an ISP or MVPD prior to providing access to the multi-
                dwelling unit.
                    (C) Restriction on charges.--A multi-dwelling unit 
                may not directly charge a subscriber for any expense 
                accrued by an ISP or MVPD under this section.
                    (D) Subscriber charges.--An ISP or MVPD may charge 
                a subscriber for expenses accrued under this section by 
                an ISP or MVPD. Any charges to a subscriber under this 
                subparagraph are subject to section 642 of the 
                Communications Act of 1934 (47 U.S.C. 562).
    (g) Enforcement.--
            (1) Civil action.--A violation of this section or any rule 
        issued under this section by any multi-dwelling unit, ISP, or 
        MVPD shall be subject to a civil action by any resident of the 
        multi-dwelling unit as if the multi-dwelling unit, ISP, or MVPD 
        violated section 631(f) of the Communications Act of 1934 (47 
        U.S.C. 551(f)). This right to civil action may not be waived or 
        subject to any arbitration requirement.
            (2) Request for access.--An ISP, MVPD, or resident of a 
        multi-dwelling unit may file a request to the Commission, or to 
        the Federal district court with jurisdiction over the multi-
        dwelling unit, for an order to allow access to the premises to 
        install and provide service.
            (3) Limitations to access.--Any access granted under 
        paragraph (2) shall be consistent with any applicable 
        Commission rule, any applicable State or local building code, 
        or any other additional consideration to protect life, safety, 
        or the quality of life of other residents of the multi-dwelling 
        unit.
            (4) Deadline for issuing order.--Not later than 90 days 
        after the date on which a request for an order is filed under 
        paragraph (2), the Commission or district court, as applicable, 
        shall make a determination and issue the order or a denial of 
        the order granting access.
            (5) Service of process required.--Any party that files a 
        request for an order under paragraph (2) shall serve a copy of 
        the request on the multi-dwelling unit, and on any ISP or MVPD 
        that offers service to residents of the multi-dwelling unit.

SEC. 8. STUDY OF THE IMPACT OF FRANCHISING AGREEMENTS ON CONSUMERS AND 
              COMPETITION.

    (a) Proceeding by FCC.--
            (1) In general.--
                    (A) Initiation.--Not later than 1 year after the 
                date of the enactment of this Act, the Commission shall 
                initiate a proceeding to analyze the use of franchising 
                agreements between telecommunications providers and 
                municipal governments as well as the impact of these 
                agreements on the price and quality of service for 
                consumers and competition in the local market.
                    (B) Conclusion.--Not later than 1 year after 
                initiating the proceeding under subparagraph (A), the 
                Commission shall conclude the proceeding.
            (2) Matters for analysis.--The analysis conducted under 
        paragraph (1) shall include the following:
                    (A) Estimation of franchise agreements.--An 
                estimation of the number of franchising agreements in 
                effect or entered into during the covered period.
                    (B) Consumer costs.--An examination of the cost of 
                broadband for consumers living in areas within the 
                jurisdiction of the franchise and comparative analysis 
                relative to comparable localities without such 
                agreements.
                    (C) Quality of service.--An examination of the 
                quality of service provided to consumers living 
                throughout the jurisdiction the franchise in order to 
                identify any differences in quality of service provided 
                in different regions within the same franchise.
            (3) Covered period defined.--In this subsection, the term 
        ``covered period'' means the 6-year period that--
                    (A) begins on the date that is 3 years before the 
                date on which the proceeding under paragraph (1) is 
                initiated; and
                    (B) ends on the date that is 3 years after the date 
                on which the proceeding is initiated.
    (b) Report to Congress.--Not later than 120 days after concluding 
the proceeding under subsection (a)(1), the Commission shall publish on 
its website and submit to the Committee on Commerce, Science, and 
Transportation of the Senate and the Committee on Energy and Commerce 
of the House of Representatives a report on the findings of the 
proceeding.

SEC. 9. NO FORBEARANCE OR WAIVER.

    Notwithstanding sections 10 or 332 of the Communications Act of 
1934 (47 U.S.C. 161, 332) or any other relevant provision of law, the 
Commission may not forbear from or waive any provision of this Act or 
forbear from or waive any rule issued pursuant to this Act.

SEC. 10. NO PREEMPTION OF CONSISTENT STATE OR LOCAL AUTHORITY.

    Nothing in this Act may be construed to preempt any consistent 
provision of State law or local regulation. The remedies provided for 
in this Act shall be in addition to any other remedy provided by common 
law, State law, or Federal law.

SEC. 11. DEFINITIONS.

    In this Act:
            (1) Commission.--The term ``Commission'' means the Federal 
        Communications Commission.
            (2) ISP.--The term ``ISP'' or ``internet service provider'' 
        means a provider of broadband internet access service (as 
        defined by the Commission in section 8.1 of part 47, Code of 
        Federal Regulations, or subsequent regulation).
            (3) Multi-dwelling unit; mdu.--The term ``multi-dwelling 
        unit'' or ``MDU'' has the meaning given the term ``MDU'' in 
        section 76.800(a) of part 47, Code of Federal Regulations, and 
        any other entity the Commission determines to be necessary to 
        effectuate the purposes of this Act.
            (4) MVPD.--The term ``MVPD'' means has the meaning given 
        the term ``multichannel video programming distributor'' in 
        section 602 of the Communications Act of 1934 (47 U.S.C. 522).
            (5) Robust broadband.--The term ``robust broadband'' means 
        broadband of a symmetric speed sufficient to allow households 
        to engage in online activities (including remote learning, 
        remote telework, telehealth, and other services that consumers 
        use broadband) for economic, educational, and other online 
        activities, on multiple devices common to a family of four 
        individuals living in a household.
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