Washington, D.C. – This past Friday, the National Multifamily Housing Council (NMHC) filed a petition to appeal the Federal Communications Commission’s (FCC) new Digital Discrimination Rule. NMHC strongly supports the goal of ending digital discrimination, but the FCC significantly erred in its approach. The FCC’s action goes far beyond what Congress intended in the Infrastructure and Investment Jobs Act (IIJA) and adopted overly broad and impermissibly vague rules that risk freezing investment in broadband deployment, thereby limiting renter access at the very same time the federal government is providing historic funding to end the digital divide. In filing this petition, NMHC joins the U.S. Chamber of Commerce and dozens of other businesses and associations in challenging the rule’s unlawful approach.
Despite NMHC’s long-standing partnership with the FCC and other stakeholders on digital equity issues as part of our comprehensive advocacy, education and engagement on the issue, the FCC published a Final Rule that includes property owners as a "covered entity", which would hold housing providers liable under the FCC’s enforcement scheme if adequate broadband is not available to its renters. The FCC, for the first time, interpreted its regulatory authority to cover property owners in a similar way as broadband service providers in the Rule. Again, this extension lacks legal authority and is a significant departure from the FCC’s existing regulations.
The FCC, also for the first time, adopted disparate impact analysis to its framework for determining whether facially neutral business practices have an unlawful discriminatory effect on the basis of a resident’s income. Both misinterpretations could allow the FCC to limit other pro-consumer, pro-competitive practices, including property access/control, infrastructure cost-share agreements, bulk billing arrangements, and managed Wi-Fi which would negatively impact housing operations and affordability. This rule would subject housing providers to liability for digital discrimination, even in cases where the housing provider has no control over broadband service or deployment and no intention to discriminate.
Rental housing providers, developers and operators work tirelessly and take on considerable expense to ensure broadband connectivity for our residents and actively work against digital discrimination as it is a critical component of resident satisfaction and well-being. NMHC urged the FCC to focus where the digital divide actually exists—in smaller, lower-income multifamily communities, where broadband providers have made the economic decision not to upgrade infrastructure or serve a community because of its perceived lack of profitability.
“The FCC’s recent effort to finalize its Digital Discrimination Rule undermines the Biden Administration’s goal of lowering costs for residents, increasing broadband access to underserved areas and broadening housing supply and opportunity,” said NMHC President Sharon Wilson Géno. “On behalf of apartment residents and housing providers, we urge the FCC to reconsider this counterproductive decision that will only serve to negatively impact broadband deployment and limit connectivity for those most in need.”
Based in Washington, D.C., the National Multifamily Housing Council (NMHC) is the leadership of the apartment industry. We bring together the prominent owners, managers and developers who help create thriving communities by providing apartment homes for 40 million Americans, contributing $3.4 trillion annually to the economy. NMHC provides a forum for insight, advocacy and action that enables both members and the communities they help build to thrive. For more information, contact NMHC at 202/974-2300, e-mail the Council at info@nmhc.org, or visit NMHC's website at www.nmhc.org.
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