FCC to Quickly Launch New Affordable Connectivity Program | Davis Wright Tremaine LLP


Just a few days after the infrastructure bill entered into force, the Federal Communications Commission (FCC) launched a regulatory procedure to create rules for the new $ 14.2 billion Affordable Connectivity Program (ACP). The PCA modifies and prolongs the Broadband Emergency Benefit Program (EBB) created in early 2021 to alleviate barriers to affordability for consumers with access to high-speed internet services during the pandemic.

Time is running out as Congress has scheduled the EBB program to end either when funding runs out or December 31, 2021, whichever comes first. The depletion of funding has so far not been a problem as EBB enrollments have been lower than expected, but it was also expected that Congress would pass the infrastructure bill much sooner in fall, especially since the legislation provides for a 60-day transition period once the CPA is launched. The rule development notice says the CPA will begin on December 31, 2021, leaving very little time for the agency and industry to create new rules and processes for the program.

Comments on the proposed rules for the new program are awaited December 8, 2021, and response comments are due December 28, 2021. The agency’s notice also confirms that currently enrolled households will continue to receive their EBB benefits during the transition period and that CPA enrollments can begin as soon as December 31, 2021. While the new rules are likely to be released in mid-January, the FCC will be issuing further guidance to industry beyond what is in the rule-making notice prior to January. start of the transition period.

In the meantime, providers can start planning for the transition by noting instances where the agency has proposed rules that would ensure the continuity of the EBB program, including:

  • Do not require currently licensed EBB vendors to reapply to the FCC to participate in the CPA, although they may need to make new representations to the program administrator, Universal Service Administrative Company (USAC) , in order to update information regarding their service offerings, or with the FCC to update any Alternative Verification Processes (AVP) for consumer registrations, such as the inclusion of the Special Supplemental Nutrition Program for women, infants and children as a means for consumers to qualify for CPA.
  • Continue to use the National Lifeline Liability Database as an authoritative source to determine which household is registered with which provider.
  • Retain the definition of usage for toll-free plans, although it invites comments on whether the agency should require a third-party app on the subscriber’s device that confirms the subscriber is using the service supported by ACP or require subscribers to periodically contact USAC to confirm that the subscriber is still using or wishes to retain the service.

In other cases, the FCC has proposed a waiver or modification of the EBB rules, such as:

  • A troubling proposal to limit provider access to USAC-administered program databases in the event of “concerns” of waste, fraud and abuse. This appears to be separate from a discussion later in the notice seeking comment on whether to include the CPA as part of a separate and pending rule-making process to create rules to exclude providers of similar funding programs.
  • Limit the use of AVPs to only those providers who maintain such processes for their own low-income programs or for purposes unrelated to the EBB program.
  • Introduction of a 15-day period for households benefiting from a free service to remedy their non-consumption after 30 days. This is a construction of the Lifeline program which is absent from the EBB program, the latter having no cure period and a rule of non-use per calendar month.
  • Introduction of an annual recertification requirement inspired by the Lifeline recertification process.
  • Require consumers to join the ACP program even if they are already enrolled in the EBB program.
  • Propose to ban support to device manufacturers on the agency’s list of entities that pose a threat to national security.

The FCC also invites comments on a wide variety of issues, including the following:

  • As interpreted in the FCC Notice, the legislation requires participating providers to offer the ACP service benefit – which will be $ 30 instead of $ 50 per month – on all of its broadband service plans ( except those bundled with video services). The FCC is now asking for comments on how it should treat individually negotiated promotional and “contractual” rate plans and how to evaluate plans offered only in particular geographies. The FCC also asks whether it should require that the plans have been offered on a generally available basis for a specific period of time in order to qualify for the CPA, and if not how to treat grandfathered plans.
  • Whether the FCC should require vendors to submit specifications and wholesale costs for connected devices to determine if the program should have minimum requirements and limits on the level of support for devices such as tablets and computers portable. The FCC is seeking comments on whether to take a cost-plus approach to cap the level of subsidy that suppliers can request.
  • Whether the FCC should allow the USAC to reject a supplier’s ACP election notice and disapprove the supplier’s service plans due to previous complaints, audit findings, enforcement actions, or convictions for fraud.
  • Should the CPA adopt minimum service standards as a means of ensuring that competitive levels of service are provided compared to unsupported services.
  • Whether the CPA should formally adopt a rule allowing providers to provide a subsidized tablet or laptop if it does not also provide broadband service to that same consumer.
  • Should the FCC adopt a uniform monthly snapshot date to determine which households a provider can claim in a given month.
  • Whether the FCC should offer more flexibility in the deadline for filing monthly claims and whether it should allow a reasonable period of time in which providers can file revised claims like the long standing rule of the Lifeline program, although it also has asked if she should limit upward revisions to certain circumstances.
  • Whether there should be a self-service option for consumers to end the ACP service.
  • So the FCC should ban households that have received a connected device through the EBB program from receiving a second device into the ACP.
  • How to reconcile the directive of the legislation allowing suppliers to unsubscribe a subscriber after 90 days of non-payment with the prohibition to refuse to register a consumer with the CPA on the basis of possible past or present arrears with the supplier.
  • Various consumer protection measures, such as new rules governing the transfer of benefits, the prohibition of practices that it deems to constitute up-selling or inappropriate upselling and the requirement of new disclosures to consumers.

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