CommLaw Monitor https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor News and analysis from Kelley Drye’s communications practice group Thu, 13 Feb 2025 17:06:29 -0500 60 hourly 1 New $14.2B Broadband Affordability Program Open to All Broadband Providers https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/new-14-2b-broadband-affordability-program-open-to-all-broadband-providers https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/new-14-2b-broadband-affordability-program-open-to-all-broadband-providers Mon, 22 Nov 2021 18:40:15 -0500 On Thursday, November 18, 2021, just days after President Biden signed the bi-partisan Infrastructure Investment and Jobs Act (aka “Infrastructure Act”) into law, the Federal Communications Commission’s Wireline Competition Bureau (WCB) released a Public Notice setting forth a 60-day rulemaking process designed to implement the statute’s Affordable Connectivity Program ("ACP") provisions.

While the final rules will not be available until a final order is adopted, which is expected by January 14, 2022, the program will launch on December 31, 2021. Here’s what we know now – a roadmap for current Lifeline and Emergency Broadband Benefit ("EBB") providers, as well as for fixed or wireless broadband providers seeking to participate in the ACP.

Click here to read our full advisory on the ACP.

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FCC Meets Statutory Deadline, Adopts Report and Order Establishing Emergency Connectivity Fund Program Rules https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-meets-statutory-deadline-adopts-report-and-order-establishing-emergency-connectivity-fund-program-rules https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-meets-statutory-deadline-adopts-report-and-order-establishing-emergency-connectivity-fund-program-rules Wed, 12 May 2021 11:01:23 -0400 On May 10, 2021, the FCC unanimously adopted final rules in a Report and Order to implement the $7.17 billion Emergency Connectivity Fund Program (“ECF Program”). The ECF Program is a fund that enables “schools and libraries to purchase laptop and tablet computers, Wi-Fi hotspots, and broadband connectivity for students, school staff, and library patrons in need during the COVID-19 pandemic.” The ECF Program was funded by the American Rescue Plan Act of 2021 signed by President Biden in early March. Along with the Emergency Broadband Benefit Program (“EBB Program”), the ECF provides significant, pandemic-related expenditures addressing the digital divide, funded outside of the existing federal Universal Service Fund programs.

With these rules, the FCC sets in motion a process for schools and libraries to receive funding for 100% of purchases to provide remote learning and remote library services during the pandemic. This fund will be a significant one-time opportunity for applicants and service providers and is expected to see high demand for funding.

The Report and Order adopted by the FCC establishes the rules and policies that govern the ECP Fund. The FCC designated the Universal Service Administrative Company (“USAC”) as the program administrator. Schools and libraries that are eligible for support under the E-Rate Program are also eligible to request and receive support through the ECF Program.

Funding Window for School Year 2021-22 Purchases Prioritized

In a change from the draft order previously released by the Commission, the Report and Order prioritizes purchases to be used for providing remote learning and remote library services in the next school year (starting July 1). USAC will open a 45-day ECF Program filing window for purchases for the upcoming year. A date for this window has not been set, but FCC Chairwoman Jessica Rosenworcel said she expects it to open in early June.

The filing window will be available for purchases for use during the period from July 1, 2021 through June 30, 2022. Due to the emergency nature of this program, the FCC does not require competitive bidding for eligible purchases (like is required under the E-Rate program). However, it sets a cap for eligible equipment reimbursement of $400 for laptops and connected devices and $250 for Wi-Fi hotspots. For other eligible equipment (modems, routers and devices that combine the two), the FCC did not set a maximum reimbursement but delegated to the Wireline Bureau to provide guidance on reasonable expenses. The FCC similarly did not set a maximum reimbursement for “advanced communications services” but tasked the Bureau and USAC to identify “outliers” beyond an expected $10 to $25 monthly cost per month. The ECF will not fund self-provisioning or the construction of new networks, except in the case where it is demonstrated that no commercial service is available to the area.

Moreover, the FCC sets per-location and per-user limitations on the availability of funding. Reimbursement may be sought only for one fixed broadband service per location, one connected device per user and one Wi-Fi hotspot per user. In addition, the FCC clarified that Wi-Fi hotspots on school buses and bookmobiles are eligible for reimbursement under the ECF.

Funding is limited to uses made primarily for “educational purposes.” To ensure that devices and services are used primarily for educational purposes, the FCC requires schools and libraries to restrict access to users with appropriate credentials (i.e., a student ID or library card). Schools will be required to certify that they are only that they are only seeking support for eligible equipment provided to students and school staff who lacked access to connected devices sufficient to engage in remote learning. The FCC will also require schools to certify that they are only seeking support for eligible services provided to students and school staff who lacked broadband services sufficient to engage in remote learning. “Staff” includes only those staff members engaging in remote teaching or otherwise providing educational services to students (and would otherwise lack access to connected devices and broadband connections).

Prior Purchases

If funding is available after the initial filing window for 2021-22 purchases, the FCC will open a window for funding of purchase already made by schools or libraries to provide remote connectivity. Specifically, this filing window would cover purchases made by applicants between March 1, 2020 (when most jurisdictions closed schools during the pandemic) and June 30, 2021. USAC and the Bureau will announce when this window will open (assuming funding remains available).


As previously mentioned, the application window has not been announced, but we will monitor and relay updates on the ECF Program as they arise.

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FCC Sets Start Date for Emergency Broadband Benefit Program https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-sets-start-date-for-emergency-broadband-benefit-program https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-sets-start-date-for-emergency-broadband-benefit-program Thu, 29 Apr 2021 17:05:59 -0400 After nearly four months of work, the FCC announced today that the Emergency Broadband Benefit Program (“EBBP”) will launch on Wednesday, May 12, 2021. Providers participating in the EBBP can begin enrolling eligible households into the program to receive supported service. Nearly 750 providers are qualified to offer EBB-supported services, with service discount reimbursements of up to $50 per subscriber ($75 in tribal areas) and equipment discount reimbursements of up to $100 available. The FCC recently conducted a webinar for consumer groups and outreach partners about the program, and USAC has been testing connectivity with eligible providers since April 19. USAC will also host a pre-launch webinar and an office hour session the week of May 3.

Click here to read the April issue of our USF Tracker for more information on the EBBP and related programs.

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Join Kelley Drye and Silicon Flatirons for a Discussion of the Digital Divide and Digital Inequality https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/join-kelley-drye-and-silicon-flatirons-for-a-discussion-of-the-digital-divide-and-digital-inequality https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/join-kelley-drye-and-silicon-flatirons-for-a-discussion-of-the-digital-divide-and-digital-inequality Wed, 21 Apr 2021 13:30:58 -0400 Senator Ron Wyden (D-OR) will keynote “Legal Code: Reframing the Divide by Addressing Broadband Access Through Affordability and Inclusion”, a virtual event co-hosted by Kelley Drye and Silicon Flatirons on May 12th from 2:00-4:00 PM (ET) that will explore issues surrounding broadband affordability. The COVID-19 pandemic shined a spotlight on the Digital Divide and Digital Inequality, and with it, illuminated the broader issue of digital inclusion and internet access as a civil right. Over the last four years, efforts to close the Digital Divide have been geared largely toward access to networks in rural America, but pandemic related displacement is driving a shift in focus toward affordability in both rural and urban areas. This shift is most clearly evidenced by the recently adopted Emergency Broadband Benefit program, which gives broadband providers the unique opportunity to help fight Digital Inequality by offering subsidized discounts on robust Internet service and connected devices capable of helping low-income Americans connect to classrooms, jobs, and telehealth. Other recent efforts include the schools and libraries-focused Emergency Connectivity Fund, which aims to address a homework gap that transformed into a school-year-long remote learning gap.

This event will examine the pandemic’s impact on how we think about the digital divide and digital inequality, the new administration’s approach, and related activity in Congress, at the FCC, and at other federal agencies.

Agenda Introduction & Opening Remarks

  • Amie Stepanovich, Executive Director, Silicon Flatirons
Keynote
  • Ron Wyden, U.S. Senator for Oregon
Panel: Conceptualizing and Navigating Paths to Affordability and Inclusion
  • John J. Heitmann (Moderator), Partner, Kelley Drye & Warren LLP
  • Kate Black, Acting Chief Policy Advisor, Federal Communications Commission
  • Jose Cortes, Chair, Regulatory and Government Affairs Committee, National Lifeline Association
  • Claire Park, Policy Program Associate, New America's Open Technology Institute
  • Trinity Thorpe-Lubneuski, Senior Director, Internet Essentials, Comcast
Click here for more information and to register.


Kelley Drye’s Communications group regularly monitors issues related to closing the Digital Divide and enabling connected life. Follow us for future updates:

USF Tracker The USF Tracker newsletter is produced by Kelley Drye’s Communications practice to help you stay current on recent Universal Service Fund news and provide an updated comprehensive summary of pending appeals and guidance requests before the FCC relating to USF contributions issues. Subscribe here.

Kelley Drye’s Full Spectrum Kelley Drye’s Full Spectrum podcast features smart, informative conversations about the latest issues in the technology, telecommunications, and media industries. Bringing together thought leaders in business, government, and enterprise, Full Spectrum offers an in-depth exploration of current legal, regulatory, and business issues. Subscribe here.

12th Annual USF Update Webinar On March 22, 2021 Kelley Drye’s Communications practice presented our annual webinar discussing the state of the federal Universal Service Fund. This webinar, back for its 12th year, provided an in-depth look at all four USF programs and the USF contribution mechanism, highlighting major developments in the last year and trends for the upcoming year. In addition, this year we discussed how the ongoing pandemic has influenced the importance of the USF and related policy decisions.

Click here to access the recording and here to access the slide deck. Click here for our 2020 USF Yearbook.

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Biden Signs Stimulus Package: FCC Set to Establish a $7 Billon Emergency Connectivity Fund to Assist with Virtual Learning https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/biden-signs-stimulus-package-fcc-set-to-establish-a-7-billon-emergency-connectivity-fund-to-assist-with-virtual-learning https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/biden-signs-stimulus-package-fcc-set-to-establish-a-7-billon-emergency-connectivity-fund-to-assist-with-virtual-learning Mon, 15 Mar 2021 17:05:33 -0400 On March 10, 2021, President Biden signed the American Rescue Plan Act, the COVID-19 stimulus bill recently enacted by Congress. The Act allocates $1.9 trillion to provide relief to businesses and individuals that are struggling due to COVID-19. Importantly, it appropriates $7.17 billion for emergency support for remote learning and remote library services. This stimulus follows $3.2 billion appropriated for an Emergency Broadband Benefit for low-income consumers and caps over $13 billion in broadband funding provided in addition to the traditional Universal Service Fund programs.

The new Emergency Connectivity Fund (“ECF”) will reimburse schools and libraries for internet access and connected devices for students and teachers for remote learning and remote library services. The passage of this legislation has been welcomed by the FCC, with Chairwoman Rosenworcel stating, “the American Rescue Plan provides the FCC with new tools to support the millions of students locked out of the digital classroom.”

The legislation requires the FCC to issue rules within 60 days of enactment to provide funding to eligible schools and libraries. Here’s a look at what to expect in the new fund.

Emergency Connectivity Fund Overview

The ECF provides support for the purchase during the COVID-19 emergency of “eligible equipment or advanced telecommunications or information services (or both)” to provide:

  • For schools, for use by schools, students and staff outside the school building; and
  • For libraries, for use by patrons outside the library location.
Eligible equipment includes: Wi-Fi hotspots, modems, routers, devices combining a modem and router, and connected devices. A connected device is defined as a “laptop computer, tablet computer or similar end-user device that is capable of connecting to advanced telecommunications and information services.”

The Act provides funding for 100% of costs associated with the eligible equipment, as well as telecommunications and information services. However, funding may not exceed an amount that the FCC determines to be reasonable. Notably, funding is in addition to, and separate from, funding under the FCC’s E-rate program. The Commission received comment in February on three proposals to permit use of E-rate funds to provide off-campus broadband services, but those proposals likely have been usurped by the ECF.

Funding is available during the COVID-19 emergency, and until the June 30th following the date on which the federal government lifts the COVID-19 emergency declaration.

The FCC is required to issue regulations within 60 days of enactment to provide funding to eligible schools and libraries. We expect a public notice to be issued in the coming days. We will, of course, continue to follow development in this important new program.

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FCC Implements $50/Month Broadband Subsidy For Low-Income Households https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-implements-50-month-broadband-subsidy-for-low-income-households https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-implements-50-month-broadband-subsidy-for-low-income-households Tue, 09 Mar 2021 17:35:19 -0500 As required by the Consolidated Appropriations Act, 2021 (“CAA”), on February 25, 2021, the FCC adopted a Report and Order to officially establish the Emergency Broadband Benefit (“EBB”) Program. Since the COVID-19 pandemic has led to a rise in virtual services and learning, access to broadband services has now become essential for most households. With this in mind, the program is designed to provide broadband services to help low-income households in particular stay connected. We have summarized the program and noted some key provisions and next steps for the FCC and potential participating providers. The program is temporary, and will expire when funds have been exhausted or 6 months after the Health and Human Services Secretary declares the end of the nationwide COVID-19 health emergency.

EBB Program Overview

The EBB Program was authorized by Section 904 of the CAA, which was designed to provide affordable broadband services to low-income households on an emergency basis. Congress allocated $3.2 billion to the EBB Program to reimburse participating providers for providing discounts on qualifying internet service offerings to qualifying low-income households. The EBB Program will provide discounts of up to $50 per month ($75 for residents of Tribal lands) to subsidize broadband services for eligible households. Eligible consumers can also receive a one-time discount of up to $100 for a desktop or laptop computer, or tablet (no smartphones) supplied by a participating provider. The EBB benefit is limited to one monthly service discount and one device discount per eligible household. To qualify for the EBB program, households must prove that at least one member of their household meets one of the following criteria:

  • qualifies for the FCC’s Lifeline program (including those who are receiving Medicaid or SNAP benefits);
  • approved for the free or reduced-price school lunch program (including through the USDA Community Eligibility Provision);
  • experienced substantial and documented loss of income since February 29, 2020 and the household had a total income in 2020 below $99,000 for single filers and $198,000 for joint filers;
  • received a federal Pell Grant in the current award year; or
  • qualifies for a participating provider’s existing low-income or COVID relief program (subject to FCC approval of that provider’s eligibility process).
All participating providers will need to enroll applicants using the National Lifeline Eligibility Database (“NLAD”), will be subject to a modified the Lifeline Claims System (“LCS”) process and must register all enrollment representatives in the Representative Accountability Database (“RAD”). Verifying household eligibility can be done by submitting the applicant’s information to the existing Lifeline National Verifier or using an alternative verification process that is approved by the FCC. Providers can also verify household eligibility through schools and the discounted meal programs. One of the more ambiguous eligibility criteria is loss of income and the metric by which this will be measured. In order to confirm that providers are complying with the applicable rules, this program will be subject to regular audits and the FCC’s traditional enforcement powers, and the Commission will apply the its Universal Service Fund suspension and debarment rules. However, there is a statutory safe harbor for participating providers relying on eligibility determinations made by the National Verifier or other approved verification methods as well as other information relied on in good faith.

Next Steps

The Order includes many specifics for the implementation of the EBB Program, but also delegates liberally to the Wireline Competition Bureau (“Bureau”) for additional details and processes. On Thursday, March 4, the Bureau issued additional guidance on the timeline for participating provider elections and applications. ETCs are automatically eligible as participating providers in the EBB Program and therefore need only submit an election to participate. The inbox for election notices will open on March 11, 2021. Non-ETC broadband providers that had existing low-income support programs as of April 1, 2020 can apply to be participating providers and will be automatically approved by providing certain information. Non-ETCs without such programs can also apply to be participating providers, but must submit an application to the Bureau for approval before they can elect to participate. The application window opened on March 8, 2021 and all application submitted by March 22, 2021 will be reviewed and acted on by the EBB service commencement date. Applications submitted after March 22 will be reviewed on a rolling basis.

For service providers to be eligible, they must file an election notice to the Universal Service Administrative Company (“USAC”), and non-ETCs must submit an application for either automatic or expedited approval by the Bureau.

Existing ETCs:

Existing ETCs need only submit an election notice to USAC. The following information must be included in election notices:

  • a list of states in which the provider plans to participate in the EBB Program;
  • a statement that, in each of the listed states, the provider is a “broadband provider” as of December 1, 2020;
  • a statement identifying where the provider is an existing ETC;
  • a statement identifying where the provider received FCC approval to participate in the EBB Program (this is primarily for providers that are seeking approvals outside of states where they are existing ETCs);
  • a statement confirming whether the provider intends to distribute connected devices under the EBB Program; and
  • a description and documentation of the Internet service offerings for which the provider plans to seek reimbursement from the EBB Program in each state.
Non-ETCs:

Non-ETCs must file an application with the Wireline Competition Bureau (“Bureau”) that must be approved to participate in the EBB Program. Non-ETCs with an existing low-income support program must file an application describing:

  • the jurisdictions in which it plans to participate,
  • the service areas in which the provider has the authority, if needed, to operate in each state, and
  • a description, supported by documentation, of the established program with which the provider seeks to qualify for automatic admission to the EBB Program.
Such applicants will receive automatic approval upon filing once the Bureau confirms that all required information was submitted.

Non-ETCs without pre-existing low-income support programs must first submit an application for Bureau approval describing:

  • the states in which it plans to participate,
  • the service areas in which the provider has the authority, if needed, to operate in each state but has not been designated as an ETC, and
  • documentation of the provider’s plan to combat waste, fraud, and abuse.
Such applicants will not receive automatic approval, but the FCC has committed to expedited review and applications filed by March 22, 2021 will be reviewed in time for the EBB service commencement date. Non-ETCs must also submit an election notice as discussed above to participate.

The FCC has set the expectation that the EBB Program will begin within 60 days of the adoption of the Order. Therefore, participation providers should start providing EBB discounted services by the end of April. For more information on the EBB and related programs, join us on March 22, 2021 for Kelley Drye’s annual webinar discussing the state of the federal Universal Service Fund ("USF"). This year will feature segments on how the ongoing pandemic has influenced the importance of the USF and related policy decisions.

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FCC Tees Up Broadband and Telehealth Updates for First Meeting under Acting Chairwoman Rosenworcel https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-tees-up-broadband-and-telehealth-updates-for-first-meeting-under-acting-chairwoman-rosenworcel https://www.kelleydrye.com/viewpoints/blogs/commlaw-monitor/fcc-tees-up-broadband-and-telehealth-updates-for-first-meeting-under-acting-chairwoman-rosenworcel Tue, 02 Feb 2021 19:23:38 -0500 The FCC released the agenda for its next Open Meeting, scheduled for February 17, 2021, which will be the first with Acting Chairwoman Jessica Rosenworcel at the helm. The FCC plans to kick off the meeting with three presentations detailing the Commission’s progress in implementing programs designed to support broadband access and deployment. First, the FCC will hear a presentation on the creation of the Emergency Broadband Benefit Program, which will allow low-income consumers to receive discounted broadband services and devices. Second, the FCC will hear a presentation covering the agency’s next steps for its COVID-19 Telehealth program, which provides funding to health care providers to offer telehealth and connected care services to patients. Third, the FCC will hear a presentation on the agency’s efforts to improve its broadband mapping data, including through the Digital Opportunity Data Collection. Rounding out the meeting agenda, the FCC will consider proposed rulemakings that would modify the agency’s supply chain security rules and address 911 fee diversion in line with recent legislation.

The February meeting begins what is expected to be a busy 2021 for the FCC’s agenda. You will find more information about the meeting items after the break.

Emergency Broadband Benefit Program: On December 27, 2020, President Trump signed the Consolidated Appropriations Act ("CAA"), 2021, which included Section 904 authorizing the $3.2 billion Emergency Broadband Benefit (EBB) Program. The Program will reimburse up to $50 per month per eligible low-income household to discount broadband service and certain connected devices during an emergency period. To participate, providers must have offered broadband internet access service as of December 1, 2020 and must either be an Eligible Telecommunications Carrier or be approved by the FCC pursuant to an expedited approval process. Congress gave the FCC 60 days to promulgate regulations to implement the EBB program and the FCC released a Public Notice establishing a comment cycle on January 4, 2021. Comments were filed on or before January 25, 2021 and reply comments are due by February 16, 2021. The Commission is also holding a roundtable discussion on the EBB implementation on February 12, 2021.

COVID-19 Telehealth Program: The FCC will hear a presentation about the agency’s plans for the next stage of the COVID-19 Telehealth program. The agency already approved $200 million in funding under the program for health care providers in 2020, exhausting the initial funding appropriated by Congress to support connected care services to patients. But Congress recently provided an additional $249.95 million for the program and the FCC already has sought comment on the appropriate metrics for evaluating requests for this funding and potential program improvements and taken action to streamline the process for disbursing future funding.

Improving Broadband Mapping Data: The FCC will hear a presentation on the agency’s work to improve its broadband maps, including through the Digital Opportunity Data Collection (DODC) that will require service providers to submit granular data regarding their current and potential broadband service territories. Among other things, the FCC will use this information to determine the areas eligible for the second round of support under the Rural Digital Opportunity Fund, which will provide at least $4.4 billion over ten years to spur broadband deployment in unserved areas. The DODC enjoys bipartisan support at the FCC, but has received criticism for its complex reporting requirements, crowdsourcing and challenge processes, enforcement standards, and lack of exceptions for smaller providers.

Supply Chain Security: The draft Further Notice of Proposed Rulemaking (“FNPRM”) would align the FCC’s supply chain security rules with the recently-enacted CAA, which allocated $1.9 billion to reimburse providers for the costs of removing, replacing, and disposing of network equipment and services posing a national security risk. In particular, the FCC plans to: (1) raise the cap on reimbursement eligibility to encompass providers with 10 million or fewer customers; (2) seek comment on allowing providers to use reimbursement funds to cover the removal, replacement, and disposal of all network equipment and services provided by Chinese telecommunications companies Huawei and ZTE that were deemed a national security threat last year; (3) request input on allowing providers to use reimbursement funds to cover the removal, replacement, and disposal of unsecure network equipment and services obtained on or before June 30, 2020; (4) prioritize reimbursement funding to smaller providers with two million or fewer customers and non-commercial educational broadband service (“EBS”) providers as well as “core” network transition costs; and (5) expand the definition of advance communications service providers eligible for reimbursement to explicitly include EBS providers, libraries, and health care providers, in line with the CAA.

911 Fee Diversion: The draft Notice of Proposed Rulemaking (“NPRM”) would implement section 902 of the Don’t Break Up the T-Band Act of 2020, which requires the FCC to take action to address the diversion of 911 fees by states and other jurisdictions for purposes unrelated to 911 operations. Section 902 specifically directs the FCC to issue final rules within 180 days of defining what uses of 911 fees by states and taxing jurisdictions constitute 911 fee diversion. The NPRM seeks comment on proposed rules to implement these provisions. Notably, fee diversion was a key focus area for former FCC Commissioner O’Rielly and remains a controversial issue within the agency.

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