Service providers likely relieved reporting requirement dropped from FCC anti-discrimination rules

Advanced telecommunications service providers are likely relieved that the Federal Communications Commission opted not to include an annual reporting requirement in its recently adopted rulemaking  Infrastructure Investment and Jobs Act: Prevention and Elimination of Digital Discrimination.

The rulemaking bars “policies or practices, not justified by genuine issues of technical or economic feasibility, that differentially impact consumers’ access to broadband internet access service based on their income level, race, ethnicity, color, religion, or national origin or are intended to have such differential impact.” It applies broadly to service providers, their contractors, entities facilitating or involved in the provision of service or maintaining and upgrading network infrastructure or other entities that otherwise affect consumer access.

The rulemaking implements section 60506 of the Infrastructure Investment and Jobs Act requiring the FCC adopt rules to facilitate equal access to broadband internet access service. Section 60506 states public policy that “insofar as technically and economically feasible— subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service.”
It defines equal access as “the equal opportunity to subscribe to an offered service that provides comparable speeds, capacities, latency, and other quality of service metrics in a given area, for comparable terms and conditions.”

The reporting requirement could have provided a detailed basis of comparison to a given provider’s other deployments and service offerings to build a case demonstrating intentional -- or unintentional discrimination based on disparate service offerings – among similarly situated areas. The reports would have required providers to report annually “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.”

Those reports could have been utilized by state attorneys general, local governments and/or class action attorneys to demonstrate a pattern of discriminatory market conduct in contravention of public policy. Less densely populated exurban communities that have for years complained telephone and cable companies have redlined them while serving adjacent areas could comprise a class of similarly situated plaintiffs. Another potential plaintiff class is residents of low income urban communities alleging they pay more for inferior services than those offered in more affluent nearby communities. The rulemaking permits providers to justify decisions on deployment of infrastructure and services based on technical and economic considerations.

The potential for litigation is enhanced given FCC complaint handing procedures tend to result in summary dismissal of consumer complaints. Complaints are referred to the provider subject of the complaint. Unsurprisingly, providers typically rationalize or deny the complaint and the complaint is then closed.