As part of the massive 2021 Infrastructure Investment and Jobs Act (IIJA), Congress directed the Federal Communications Commission (FCC) to issue rules facilitating consumers’ “equal access” to broadband internet access service. The FCC issued these rules last November. The FCC interpreted Congress’s directive as authorizing it to enforce digital equal access rules not just against providers of broadband service, but against any entity that may “affect consumer access to” broadband internet. The FCC’s order specifically identifies landlords and building owners as “covered entities” subject to the FCC’s regulatory framework summarized below.
What Is Barred:
Section 60506 of the IIJA states that it is the policy of the United States that “subscribers should benefit from equal access to broadband internet access service within the service area of a provider of such service.” The statue and FCC rules define “equal access” as “the equal opportunity to subscribe to an offered [broadband] service that provides comparable speeds, capacities, latency and other quality of service metrics in a given area, for comparable terms and conditions.” To facilitate equal access, the FCC rules bar “covered entities,” such as "a landlord”, from engaging in “digital discrimination of access” to broadband services. The FCC defines digital discrimination as policies and practices that intentionally discriminate or that have a discriminatory effect taking into account the technical or economic feasibility of providing access. Covered entities may not adopt policies or practices that differentially impact consumers’ access to broadband “based on their income level, race, ethnicity, color, religion, or national origin.”
How Will the FCC Determine Discrimination:
The FCC will assess whether an apartment operator has engaged in prohibited discriminatory conduct borrowing from, but not fully following, frameworks developed by the courts in other contexts, such as the Fair Housing Act. The FCC will compare broadband service availability, service quality, price and other terms and conditions between different geographic areas, or presumably from one building or housing complex to another, to determine if discrimination has occurred. The FCC will first assess whether there is a policy or practice that is causing a disparity in access based on the specified characteristics. If so, covered entities must prove, by a preponderance of the evidence, that the policy or practice is “justified by genuine issues of technical or economic feasibility,” which would include proof that there is not a “reasonably available and achievable alternative policy that would serve the entity’s legitimate business objectives with less discriminatory effect.” The FCC will undertake this analysis on a case-by-case basis.
Enforcement:
The FCC rules allow individual consumers (e.g., tenants), groups or associations to file informal complaints with the agency alleging digital discrimination. The FCC will then forward the complaints to the property owners for investigation and the FCC may require a written response. The FCC will review this documentation and determine whether further investigation or action is needed. Additionally, local, state or tribal officials may also bring potential discriminatory conduct to the FCC’s attention. The FCC may also initiate investigations on its own.
Should the FCC conclude, after conducting an investigation, that discrimination has occurred, it may utilize all of the enforcement tools at its disposal, including issuing fines or adopting remedial orders. The FCC theoretically could, for example, order an apartment operator to allow a broadband provider into the building to provide access on comparable terms to that which the provider offers to consumers in the surrounding areas.
Next Steps:
The FCC’s order will become effective on March 22, 2024, with the exception of provisions relating to the filing of informal complaints, which are delayed pending approval by the Office of Management and Budget. The FCC has stated, however, this it will not enforce the rules until at least six months after the effective date. The rules are highly controversial and drew a lengthy dissent from the Republican commissioners. Moreover, 15 different parties have appealed the order thus far. These appeals have been consolidated in the 8th U.S. Court of Appeals, which recently issued an order directing the parties to develop a briefing schedule to conclude by the end of this year.
For further information, please contact Michael Pryor or Blair Lichtenfels.
This document is intended to provide you with general information regarding the FCC's efforts to enforce equal access to broadband internet access service. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.