Broadband internet access service providers, and possibly broadband communications services and applications providers, will likely soon face additional regulatory restrictions on their services. The FCC has released a Notice of Proposed Rulemaking (NPRM), adopted at its December Open Commission Meeting, seeking comment on new rules prohibiting digital discrimination from access to broadband service.

The NPRM proposes and seeks comment on the following:

Covered Services and Entities: While new rules would certainly apply to broadband internet access service providers (DSL, cable, fiber, wireless, or satellite), the FCC seeks comment on whether to include other services such as communications services and applications delivered over broadband.

The Definition of Digital Discrimination of Access: The FCC is proposing to define "Digital Discrimination of Access" as one, or a combination of, the following:

• Disparate Impact – 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. The Disparate Impact Framework would be based on the standard for discrimination in federal courts which requires: (1) the complainant to make a prima facia case of discrimination; (2) the burden shifts to the respondent to establish a substantial, legitimate justification for the practice or policy, and (3) the burden then shifts back to the complainant to respond with an alternative policy that would achieve the goals of the existing policy, but have less discriminatory affect; and/or
• Disparate Treatment – Policies or practices, not justified by genuine issues of technical or economic feasibility, that are intended to differentially impact consumers' access to broadband internet access service based on their income level, race, ethnicity, color, religion, or national origin. The Disparate Treatment Framework would be based on the "McDonnell Douglas" framework, which requires: (1) the complainant proves a prima facie case of discrimination by typically showing that they are a member of a protected group, were eligible for a service or employment opportunity, were denied or otherwise treated in an adverse manner, and that a similarly situated individual who is not a member of the protected group was treated better; (2) the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the challenged practice or action; and (3) the burden then shifts back to the complainant to demonstrate that this reason is pretext for discrimination. 

Prohibited Practices and Policies: The FCC seeks comment on providers' policies and practices that lead to digital discrimination, including what policies and practices should be covered by the new rules (late fees, data caps, equipment rentals and installation, etc.).

Technical and Economic Feasibility: The FCC seeks comment on exceptions to the rules based on technical and economic feasibility, including whether to establish safe harbors, establish a case-by-case standard, or both.

Protected Consumers: The FCC seeks comment on how to identify consumers that may experience digital discrimination of access, including which groups of consumers should be covered, and whether to limit the scope to just current subscribers.

Identification Metrics: The FCC seeks comment on the standards it should use to determine when consumers face digital discrimination, relevant comparators, the data that should be considered, the scope of inquiries when identifying instances of differential impact, the standards and methods, and geography.

Revisions to the Informal Consumer Complaint Process: The FCC proposes to revise the FCC's consumer complaint process to (1) add a dedicated pathway for consumer digital discrimination of access complaints; (2) collect voluntary demographic information from filers who submit complaints; and (3) establish a clear pathway for organizations to submit complaints. 

Enforcement: The FCC seeks comment on how broadly to enforce a prohibition on digital discrimination, including constraints of its current enforcement capabilities, punishments and remedies, whether to establish a structured process to adjudicate formal complaints, and how to incorporate state and local officials and private rights of action.

Affirmative Obligations: The FCC seeks comments on affirmative obligations the FCC could place on providers to address digital discrimination, including using Commission data to formulate plans, adopting provisions modeled on HUD's fair housing act, and requiring providers to give information to subscribers.