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.
[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4875 Introduced in House (IH)]
<DOC>
117th CONGRESS
1st Session
H. R. 4875
To require the Federal Communications Commission to issue a notice of
inquiry related to digital redlining, to prohibit digital redlining,
and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 30, 2021
Ms. Clarke of New York introduced the following bill; which was
referred to the Committee on Energy and Commerce
_______________________________________________________________________
A BILL
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.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Energy and Commerce.
Referred to the Subcommittee on Communications and Technology.
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