UPDATE In an FCC meeting with strong, differing views, Commissioners approved 3-2 on Thursday rules to prevent digital discrimination. Wireless industry association pushback was strong as well.
Democrats say the Infrastructure Law requires the agency to pass rules prohibiting ISPs from discriminating access to broadband services on the basis of income level, race, ethnicity, color, religion, or national origin. The rules target business practices and policies that impede equal access to broadband without adequate justification, according to those in favor of the changes.
Under the new rules, the Commission can investigate possible instances of discrimination of broadband access, work with companies to solve problems, facilitate mediation, and, when necessary, penalize companies for violating the rules. The FCC will review consumer complaints of digital discrimination of access through what it says is an improved consumer complaint portal and staff will meet monthly to assess trends in complaint patterns.
Democratic Commissioners voted for the changes. Commissioner Geoffrey Starks said during the vote: “Congress said that the digital divide disproportionately affects communities of color, low-income areas, rural areas, and that the benefits of broadband should be broadly enjoyed by all. And so with those findings, Congress told us here at the FCC to get to work and that is what we are doing here today.”
Republican commissioners opposed the changes. Commissioner Brendan Carr had a lengthy, approximately 25-minute impassioned speech concerning what’s wrong about them. “The text of the order itself expressly provides that the FCC would be empowered, for the first time, to regulate each and every ISP’s network infrastructure deployment, network reliability, network maintenance, customer premise equipment, installation, speed, capacity, latency, data cap, throttling, pricing, promotional rates, late fees, opportunity for equipment rental, installation time, service termination fees, and use of customer credit and account history.”
Saying that the rule now covers more industries than ISPs, Carr added: “To everyone that will be subject to FCC regulation for the first time ever, welcome. I hope you have good lawyers.”
Carr and fellow GOP Commissioner Nathan Simington said the changes will chill investment and won’t stand up to legal scrutiny. They say the FCC overstepped its authority on this issue.
Democratic commissioners disagree. FCC Chairwoman Jessica Rosenworcel noted that two years ago yesterday, Congress passed the bipartisan Infrastructure Law that made a $65 billion in broadband deployment. Section 60506 of the law directs the agency to “prevent and eliminate digital discrimination,” she said.
Over the last two years, the agency built an “extensive” record on the issue, noted Rosenworcel. That included creating a task force that conducted eight listening sessions around the country to hear “from the community, listen to people fighting digital discrimination on the ground, and learn about experiences with industry.” The FCC included providers, state, local and Tribal governments in its efforts.
As for the argument that the FCC overstepped, Rosenworcel said Congress was clear. She characterized the Commission’s new rules as “fair and reasonable.” There’s also a new path for digital discrimination complaints, “aimed at finding solutions that work for all parties. And if that is not feasible, our Enforcement Bureau will step in with the entire enforcement toolkit at its disposal to seek remedies.”
As the law requires, the Commission says it recognizes that technical and economic feasibility are “valid reasons” why it may not be possible for equal access to a provider’s network. “We will review those defenses carefully and thoughtfully on a case-by-case basis,” Rosenworcel said. Providers can also ask the agency for guidance to help solve problems before they’re brought to the agency.
By Leslie Stimson, Inside Towers Washington Bureau Chief
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