Proposed Rule2021-27775
Wireline Competition Bureau Seeks Comment on the Implementation of the Affordable Connectivity Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 29, 2021
Issuing agencies
Federal Communications Commission
Abstract
In the document, the Wireline Competition Bureau (Bureau) seeks comment on the requirements for the Affordable Connectivity Program and a timeline for its rapid implementation.
Full Text
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<title>Federal Register, Volume 86 Issue 247 (Wednesday, December 29, 2021)</title>
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[Federal Register Volume 86, Number 247 (Wednesday, December 29, 2021)]
[Proposed Rules]
[Pages 74036-74062]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-27775]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[WC Docket No. 21-450; DA 21-1453; FRS 62653]
Wireline Competition Bureau Seeks Comment on the Implementation
of the Affordable Connectivity Program
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In the document, the Wireline Competition Bureau (Bureau)
seeks comment on the requirements for the Affordable Connectivity
Program and a timeline for its rapid implementation.
DATES: January 5, 2022. If you anticipate that you will be submitting
comments, but find it difficult to do so within the
[[Page 74037]]
period of time allowed by this document, you should advise the contact
listed in the following as soon as possible.
ADDRESSES: Pursuant to Sec. 1.419 of the Commission's rules, 47 CFR
1.419, interested parties may file comments on or before December 28,
2021. All filings should refer to WC Docket No. 21-450. Filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission. Comments may be filed by paper or by
using the Commission's Electronic Comment Filing System (ECFS). See
Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121
(1998).
[ssquf] Electronic Filers: Comments may be filed electronically via
ECFS: <a href="http://www.fcc.gov/ecfs">http://www.fcc.gov/ecfs</a>.
[ssquf] Paper Filers: Parties who choose to file by paper must file
an original and one copy of each filing. Filings can be sent by hand or
messenger delivery, by commercial overnight courier, or by first-class
or overnight U.S. Postal Service mail.
<bullet> Filings can be sent by commercial overnight courtier or by
first-class or overnight U.S. Postal Service mail. Due to the COVID-19
pandemic, the Commission closed its hand-delivery filing location at
FCC Headquarters effective March 19, 2020. As a result, hand or
messenger delivered filings in response to this Public Notice will not
be accepted. Parties are encouraged to take full advantage of the
Commission's electronic filing system for filing applicable documents.
Except when the filer requests that materials be withheld from public
inspection, any document may be submitted electronically through the
Commission's ECFS. Persons that need to submit confidential filings to
the Commission should follow the instructions provided in the
Commission's March 31, 2020 public notice regarding the procedures for
submission of confidential materials. All filings must be addressed to
the Commission's Secretary, Office of the Secretary, Federal
Communications Commission.
[ssquf] Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
[ssquf] U.S. Postal Service first-class, Express, and Priority mail
must be addressed to 45 L Street NE, Washington, DC 20554.
People with Disabilities. To request materials in accessible
formats for people with disabilities (Braille, large print, electronic
files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#adcbcece989d99edcbcece83cac2db"><span class="__cf_email__" data-cfemail="1d7b7e7e282d295d7b7e7e337a726b">[email protected]</span></a> or call the
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice).
Ex Parte Rules. This proceeding shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules. Persons making ex parte presentations must file a copy of any
written presentation or a memorandum summarizing any oral presentation
within two business days after the presentation (unless a different
deadline applicable to the Sunshine period applies). Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the presentation consisted in whole or in part of
the presentation of data or arguments already reflected in the
presenter's written comments, memoranda or other filings in the
proceeding, the presenter may provide citations to such data or
arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data
or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule 1.1206(b). In proceedings governed by
rule 1.49(f) or for which the Commission has made available a method of
electronic filing, written ex parte presentations and memoranda
summarizing oral ex parte presentations, and all attachments thereto,
must be filed through the electronic comment filing system available
for that proceeding, and must be filed in their native format (e.g.,
.doc, .xml, .ppt, searchable .pdf). Participants in these proceedings
should familiarize themselves with the Commission's ex parte rules.
FOR FURTHER INFORMATION CONTACT: For further information, please
contact Eric Wu, Telecommunications Policy Access Division, Wireline
Competition Bureau, at (202) 418-7400 or by email at <a href="/cdn-cgi/l/email-protection#6a0f180309441d1f2a0c0909440d051c"><span class="__cf_email__" data-cfemail="8aeff8e3e9a4fdffcaece9e9a4ede5fc">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This is a summary of the Bureau's Public
Notice (Notice) in WC Docket No. 21-450, released on November 18, 2021.
The full text of this document is available for public inspection on
the Commission's website at: <a href="https://www.fcc.gov/document/fcc-seeks-comment-new-affordable-connectivity-program">https://www.fcc.gov/document/fcc-seeks-comment-new-affordable-connectivity-program</a>.
I. Introduction
1. On November 15, 2021, President Biden signed the Infrastructure
Investment and Jobs Act (Infrastructure Act or Act), which modifies and
extends the Emergency Broadband Benefit Program (EBB Program) to a
longer-term broadband affordability program to be called the Affordable
Connectivity Program (sometimes referred to as ``ACP''). The
Infrastructure Act directs the Commission to undertake a proceeding to
adopt final rules for this modified program. Consistent with this
directive, the Bureau herein seeks comment on the requirements for the
Affordable Connectivity Program and a timeline for its rapid
implementation.
2. The Commission established the rules for and structure of the
EBB Program earlier this year based on the framework provided in the
Consolidated Appropriations Act. The text of the Infrastructure Act
establishing the Affordable Connectivity Program relies in large part
on the EBB Program directives in the Consolidated Appropriations Act by
overlaying new Affordable Connectivity Program requirements on top of
EBB Program requirements, as well as by providing additional
requirements. The Infrastructure Act, however, retains many of the EBB
Program requirements found in the Consolidated Appropriations Act. The
Infrastructure Act, for example, does not modify the procedural and
rulemaking timeline requirements contained in section 904(c) of the
Consolidated Appropriations Act, and the Bureau interprets section
904(c) as also pertaining to the promulgation of rules for the
Affordable Connectivity Program. Therefore, for purposes of this
rulemaking, the Bureau must initiate this rulemaking within five days
of enactment of the Infrastructure Act, must set a 20-day public
comment period followed by a 20-day period for replies, and the
Commission must resolve the rulemaking within 60 days of enactment.
3. The Infrastructure Act also directs the Commission to effectuate
for the Affordable Connectivity Program specified changes, such as to
EBB Program eligibility and the program benefit amount, by the
effective date, which the statute defines as the date the Commission
notifies Congress that all EBB Program funds have been fully expended
or December 31, 2021, whichever is earlier. The Bureau does not project
EBB Program funds will be fully expended by December, 31, 2021,
[[Page 74038]]
and therefore, for the purposes of this rulemaking, the Bureau
considers December 31, 2021 to be the effective date of the Affordable
Connectivity Program and the date on which the EBB Program ceases. The
Bureau requests that stakeholders include in their comments how the
changes to program eligibility and benefit amount impact the providers,
consumer groups, governmental agencies and others as they prepare to
support outreach for and enrollment in the Affordable Connectivity
Program. The Bureau also urges commenters to suggest ways in which the
Commission could facilitate these program changes so as to minimize any
potentially disruptive impacts on low-income consumers.
4. Pursuant to the Infrastructure Act, the amendments removing and
adding certain qualifying eligibility programs, changing the benefit
level, and making other modifications to the EBB Program requirements
are ``delayed amendments'' that do not take effect immediately. The
Infrastructure Act also provides for a 60-day transition period for
``households that qualified'' for the EBB Program before the effective
date that would otherwise see a reduction in their benefit as a result
of the changes made through the delayed amendments. Accordingly, the
60-day transition period for the Affordable Connectivity Program will
start on December 31, 2021 for all households enrolled in the EBB
Program before the effective date. During the transition period,
households currently enrolled in the EBB Program will continue to
receive the same benefit level they are receiving as of the effective
date, thereby ensuring a seamless migration for all EBB Program
households to the Affordable Connectivity Program. Moreover, the
Affordable Connectivity Program will also begin to accept enrollments
on the effective date. To ensure an orderly transition, the Bureau will
provide additional guidance to participating providers, households,
outreach partners, and other stakeholders concerning the end of the EBB
Program, the 60-day transition period, the Affordable Connectivity
Program requirements, and any other guidance necessary for enrollment
of households in the Affordable Connectivity Program.
II. Discussion
5. The Infrastructure Act does not alter the definition of
participating provider or the framework through which providers may
seek to participate in the Affordable Connectivity Program. Like
participation in the EBB Program, provider participation in the
Affordable Connectivity Program is voluntary. For both the Affordable
Connectivity and EBB Programs, a ``participating provider'' is defined
as a broadband provider that is either designated as an eligible
telecommunications carrier (ETC) or a provider that seeks approval from
the Commission to participate in the program. To participate in the EBB
Program, ETCs and their affiliates in the states or territories where
the ETC is designated were required to file the appropriate information
with the Universal Service Administrative Company (USAC) and did not
need to seek approval from the Commission in those states. All other
broadband providers needed to seek approval from the Commission to
participate in the EBB Program.
6. Providers that have not been designated as ETCs by the states or
the Commission were required, in order to participate in the EBB
Program, to file an application with the Commission that meets the
program requirements and must be approved by the Commission. The
Infrastructure Act leaves these requirements unchanged for providers
seeking to participate in the Affordable Connectivity Program.
Moreover, the Infrastructure Act does not modify or eliminate the
requirement that the Commission ``automatically approve as a
participating provider a broadband provider that has an established
program as of April 1, 2020, that is widely available and offers
internet service offerings to eligible households and maintains
verification processes that are sufficient to avoid fraud, waste, and
abuse.''
7. The Commission established an expedited and automatic approval
process in the EBB Program. The Bureau proposes that all existing EBB
Program providers, even those that lack ETC designations or are not
affiliated with an ETC, would not need to file or resubmit a completely
new application to participate in the ACP prior to resubmitting their
ACP election notice to USAC. Only a provider that did not participate
in the EBB Program and is not an existing ETC or affiliated with an ETC
would need to file an entirely new FCC approval application. The Bureau
seeks comment on this proposal.
8. As noted in this document, the Consolidated Appropriations Act
also required that the Commission ``automatically approve as a
participating provider any broadband provider that has an established
program as of April 1, 2020 that is widely available and offers
internet service offerings to eligible households and maintains
verification processes that are sufficient to avoid fraud, waste, and
abuse.'' In the EBB Program, the Commission implemented this statutory
obligation by allowing service providers to file ``automatic
applications'' where the provider's application would be reviewed on a
priority basis if it established it had a pre-existing program as of
April 1, 2020 that offered discounted service for certain eligible
households. In defining what constitutes an ``established program'' the
Commission adopted a ``broad interpretation,'' finding that ``any
eligible broadband provider that maintains an existing program that was
made available by April 1, 2020 to subscribers meeting at least one of
the criteria in the Consolidated Appropriations Act's definition of an
eligible household'' meets the requirements of an established program.
The Commission explained that the principal consideration in
determining what constitutes an ``established program'' for automatic
approval is whether EBB eligible subscribers would have received a
financial benefit through either reduced rates or rate forbearance.
Further, a provider must also show its program is ``widely
established'' by demonstrating the program is offered to subscribers in
a substantial portion of the provider's service area in the
jurisdiction for which it is seeking approval. The established program
must have been available by April 1, 2020 to subscribers meeting at
least one of the criteria in the definition of an EBB Program eligible
household. Specifically, providers offering broadband households
discounted rates based on criteria such as low-income status, loss of
income, participation in certain federal, state, or local assistance
programs, or other means-tested eligibility criteria qualify for this
automatic approval process. Additionally, the Commission made eligible
for automatic approval providers that made commitments to keep low-
income subscribers connected during the pandemic and offered widely
available bill forbearance or forgiveness programs beginning no later
than April 1, 2020 and continuing through the end of the EBB Program.
The Bureau proposes to retain the process developed for review and
approval of automatic applications for such non-ETC providers, and the
Bureau seeks comment on that proposal.
9. The Infrastructure Act makes several changes to the ways
households can qualify for the Affordable Connectivity Program. In the
EBB Program, a household may qualify if it meets the requirements of a
provider's existing low-income or COVID-19 program, subject to the
requirements of
[[Page 74039]]
the provider's approved verification process. However, under the
Affordable Connectivity Program, eligibility for a provider's COVID-19
program no longer qualifies a household to receive ACP benefits.
Additionally, the Infrastructure Act removes eligibility for households
that qualified based on having experienced a substantial loss of income
since February 29, 2020. Given these changes, the Bureau seeks comment
on how the Commission should revise the process for determining whether
a provider's ``established program'' qualifies it for automatic
approval to become a participating provider in the Affordable
Connectivity Program. In keeping with the directive of Congress, the
Bureau proposes to modify the requirements of what constitutes an
``established program'' to reflect the removal of COVID-19-specific
response programs and other short-term bill forbearance or forgiveness
programs. Accordingly, a provider seeking to participate in the
Affordable Connectivity Program that did not participate in the EBB
Program or is otherwise not an ETC or affiliated with an ETC can
demonstrate an ``established program'' for automatic approval by
submitting information demonstrating that it maintains an existing low-
income program that was made available by April 1, 2020 to subscribers
meeting at least one of the criteria in the revised definition of an
eligible household. The Bureau proposes, consistent with the
Infrastructure Act's modifications to the statute, that to qualify for
automatic approval, providers must demonstrate that they are offering
broadband subscribers discounted rates based on criteria such as low
income, participation in federal, state, or local assistance programs,
or other means-tested eligibility criteria, and must also demonstrate
the pre-existing verification process used for this existing program.
10. The Bureau next proposes that the Commission should delegate to
them the authority to review and approve or deny service provider
applications consistent with the authority it possessed for the EBB
Program. The Bureau proposes to require only providers that did not
participate in the EBB Program to seek Commission approval prior to
submitting to USAC the ACP election notices. The Bureau also proposes
that applications should be reviewed on a rolling basis throughout the
Affordable Connectivity Program. The Bureau seeks comment on these
proposals. What efficiencies should the Commission consider to manage
the speedy and thorough review of provider applications? Once the
Commission has approved (or denied) an application, how should it
inform the applicant of that determination? The Bureau seeks comment
generally on using the application and review processes from the EBB
Program in the Affordable Connectivity Program, and any modifications
the Commission should consider for the implementation of the Affordable
Connectivity Program.
11. The Bureau seeks comment on any additional changes that should
be made to the provider approval process given the anticipated longer
timeframe of the Affordable Connectivity Program. For instance, what
requirements for notice and approval should the Commission impose with
respect to transactions between participating providers? Historically,
transactions that alter the ownership interests of ETCs participating
in the High Cost and Lifeline programs must receive approval from the
Bureau under its license transfer, Universal Service Fund and
compliance plan authorities. Should the Commission impose a similar
requirement for ACP providers? Should the Commission instead only
require the providers to maintain up-to-date ownership information in
its election notice filed with USAC? The Bureau also recognizes that
providers are not required to participate in the Affordable
Connectivity Program and it anticipates that some providers may wish to
voluntarily relinquish their eligibility. Should the Commission adopt a
formal process providers must follow to relinquish ACP eligibility?
Must the Commission act on such notice before a provider can withdraw
from the Affordable Connectivity Program? The Bureau seeks comment on a
process through which ACP providers can cease providing service
supported by the program while also ensuring that their subscribers are
provided adequate notice and given the opportunity to transfer their
benefit to another service provider.
12. In the EBB Program, the Commission required all participating
providers to file an election notice with USAC to participate. The
Commission also established an expedited process where existing ETCs
and other approved providers could gain access to the necessary USAC
systems being used to administer the EBB Program. The EBB provider
election notice includes: (1) The states in which the provider plans to
participate in the EBB Program; (2) a statement that, in each such
state, the provider was a ``broadband provider'' as of December 1,
2020; (3) a list of states where the provider is an existing ETC, if
any; (4) a list of states where the provider received FCC approval,
whether automatic or expedited, to participate, if any; (5) whether the
provider intends to distribute connected devices under the EBB Program;
(6) a description of the internet service offerings for which the
provider plans to seek reimbursement from the EBB Program in each
state; (7) documentation demonstrating the standard rates for those
services; and (8) any other administrative information necessary for
USAC to establish participating providers in the EBB Program. Should
the Commission require all providers to submit a new election notice
for the Affordable Connectivity Program? By doing so, the Commission
would not only give providers an opportunity to refresh the information
they initially provided for the EBB Program, but would also ensure that
providers are committed to participating in this new program and
understand the program requirements. Alternatively, the Bureau seeks
comment on whether the Commission should require only providers that
have not certified any claims for the EBB Program to submit an election
notice for the Affordable Connectivity Program. Would this alternative
approach be sufficient to ensure that EBB Program providers are
committed to participate in the Affordable Connectivity Program and are
aware of the new program requirements? If the Commission does not
require all EBB Program providers to submit new election notices in
order to participate in the Affordable Connectivity Program, should the
Commission require those providers to update their election notices to
reflect new services and connected devices to be offered in the
Affordable Connectivity Program? The Bureau also seeks comment on the
EBB Program election notice form and process administered by USAC and
what modifications would be appropriate for the Affordable Connectivity
Program.
13. The Infrastructure Act removes the Consolidated Appropriations
Act requirement that the EBB Program supported service must have been
offered ``in the same manner, and on the same terms, as described in
any of such provider's offerings for broadband internet access service
to such household, as on December 1, 2020.'' Moreover, the
Infrastructure Act also imposes a new requirement that providers
``shall allow an eligible household to apply the affordable
connectivity benefit to any internet service offering of the
participating provider, at the same rates and terms available to
households that are not eligible households.'' Given these
[[Page 74040]]
changes, the Bureau seeks comment on the information and the supporting
documentation that should be collected by USAC as part of the election
process to help guard against waste, fraud, and abuse, and to ensure
that the provider offers supported service through the Affordable
Connectivity Program at the same terms available to households not
eligible for the program. For instance, should the Commission require a
demonstration that the service offering was generally available for a
specific period of time prior to the submission of the election notice
or the launch of the Affordable Connectivity Program? If so, what
should that period of time be? Would such a requirement be consistent
with the Infrastructure Act's requirement that eligible households be
allowed to apply the benefit to any internet service offering of the
provider? How should promotional and contract rates be evaluated for
purposes of determining whether the supported service is offered on the
same terms as those offered to non-eligible households? The Bureau also
seeks comment on the appropriate geographic area for evaluating whether
the service is offered at the same rates and terms as those offered to
non-eligible households. Can a provider's rates in one geographic area
be used as a reference for comparable rates for the Affordable
Connectivity Program in another area? How large of a geographic area
should the Commission use as a reference for comparing rates? How
should rates in areas where a provider recently expanded service be
considered?
14. EBB Program election notices are also required to include
information about the connected devices offered by the provider. With
respect to the connected devices providers seek to offer through the
Affordable Connectivity Program, what information should the Commission
require in the election notice? Should providers be required to submit
documentation on the retail rate of the device, including, but not
limited to, the make, model, and specifications of the device, and the
cost of the device to the provider? Currently, in the EBB Program,
providers only need to include documentation detailing the equipment,
rates, applicable costs of the laptop, desktop or tablet and provide
summary information regarding the devices, rates, and costs. The Bureau
seeks comment on requiring connected device specifications and the cost
of the device in the ACP election notice to help USAC and the
Commission determine whether the reimbursement claims for the device
are compliant with the Commission's rules and to help guard against
waste, fraud, and abuse.
15. The Bureau also proposes that with their election notices
providers submit to USAC the lists of ZIP codes where they will offer
the supported services to be used to populate the Companies Near Me
tool on USAC's website without delay. The Companies Near Me tool allows
consumers to find a Lifeline or EBB Program provider in their area. The
Bureau seeks comment on this proposal and other information the
election notice should collect.
16. As in the EBB Program, the Bureau proposes to accept election
notices on a rolling basis throughout the Affordable Connectivity
Program. Should the Commission adopt a specific timeframe for acting on
provider elections? How should the timeframe take into account the need
for USAC simultaneously to administer the EBB Program or the Affordable
Connectivity Program, and also process election notices? Once USAC has
reviewed an election notice and verified that the broadband provider is
eligible to participate in the Affordable Connectivity Program, how
should it inform applicants of that determination? The Bureau also seek
comments on when and under what circumstances USAC should reject an
election notice. Can USAC take into account past complaints,
enforcement actions, fraud convictions, or audit findings as bases for
rejecting a provider's election for the Affordable Connectivity
Program? Further, if an applicant fails to provide with its election
notice or application the information that may be required under the
Commission's rules, should that be a basis for rejecting or delisting
that applicant? Are there other reasons that would justify rejection?
Because the Infrastructure Act eliminated the EBB Program requirement
that participating providers must have offered a broadband service as
of December 1, 2020 in order for that service to qualify for EBB
Program support, the Bureau anticipates the Affordable Connectivity
Program will be open to a broader range of providers. The Bureau seeks
comment on what information should be collected from providers to
ensure that they are legitimate broadband providers committed to
adhering to the ACP rules and are capable of providing broadband
service to eligible households. For example, should the Commission
require providers to certify that they would be able to promptly
provide service in an area if a subscriber requested it? Should the
Commission require providers to certify that they will respond to
consumer complaints filed using the dedicated ACP complaint process
within 30 days?
17. Participating providers necessarily will have to interact with
both the Commission and USAC. The Bureau proposes that, as with the EBB
Program election process, a broadband provider will be required to have
already registered with the Commission and USAC and to have received
both an FCC Registration Number (FRN) and Service Provider
Identification Number, if applicable, before filing an election notice.
The Bureau proposes to retain for the Affordable Connectivity Program
the information requested on the EBB Program election form. This
includes a requirement that providers include their data universal
numbering service (DUNS) and employer identification numbers (EIN) on
the election form. The Bureau seeks comment on this proposal and asks
what other financial information from providers it should collect on
the election notice to ease the administration of the program. For
instance, requiring each participating provider to file a separate
election notice rather than allowing affiliated providers the ability
to file a joint election notice would ease the processing of payments
to each provider in the Affordable Connectivity Program. The Bureau
thus proposes requiring each participating provider to file an election
notice separately, that would include the FRN, EIN, and DUNS for the
entity receiving payment. The Bureau seeks comment on this proposal.
The Bureau also seeks comment on any burdens related to the election
notice process, particularly for small providers, and possible ways to
alleviate these burdens.
18. The Infrastructure Act leaves unchanged the requirement that
the Commission ``expedite the ability of all participating providers to
access the National Verifier and the National Lifeline Accountability
Database (NLAD) for the purposes of determining whether a household is
an eligible household.'' The Bureau proposes that all participating
providers be required to have their agents and other enrollment
representatives registered with the Representative Accountability
Database (RAD), as is currently required for the Lifeline and EBB
Programs as a way to minimize waste, fraud, and abuse. As it does in
the Lifeline program, should the Commission prohibit participating ACP
providers from offering or providing to their enrollment
representatives or their direct supervisors any commission compensation
that is based on the number of consumers who apply for or are enrolled
in the ACP with that provider? In the EBB Program Order, 86
[[Page 74041]]
FR 19532, April 13, 2021, the Commission declined to apply this
prohibition to the EBB Program ``to avoid discouraging provider
participation and diminishing consumer choice in the [EBB] Program.''
Should the longer-term nature of the Affordable Connectivity Program
change the Commission's assessment of whether these concerns outweigh
the possible benefits of the prohibition in guarding against waste,
fraud, and abuse? What other actions should the Commission consider to
protect the Affordable Connectivity Program and enrolling households
from waste, fraud and abuse caused by rogue agents of providers?
19. To access the databases, Affordable Connectivity Program
providers will be required to accept USAC's OnePortal Terms and
Conditions, agreeing that their access is conditioned on their
compliance with federal laws regarding privacy, data security, and
breach notification. The Bureau proposes that once USAC has verified a
broadband provider's election notice, it should expeditiously process
and prioritize registrations from such providers and take any other
steps needed to facilitate access by participating providers to these
databases. For providers with an election notice that is verified for
the Affordable Connectivity Program, but not for the EBB Program,
should the Commission direct USAC to limit the provider's access to
USAC systems before the Affordable Connectivity Program is launched?
The Bureau seeks comment on ways to help providers, especially those
who are new to USAC systems, gain access to and familiarity with the
systems they need to enroll households in the Affordable Connectivity
Program.
20. The Bureau proposes that the Commission formalize a process for
limiting provider access to USAC systems or removing participating
providers from the Affordable Connectivity Program in situations where
there are concerns of waste, fraud, and abuse. For example, should USAC
remove providers if there is a trend of troubling complaints that
suggest that the provider is not offering eligible households broadband
service or connected devices, is failing to properly enroll subscribers
pursuant to ACP rules, is not passing through the discounts to
subscribers, is providing devices that do not provide the connectivity
that was promised or that consumers require, or is otherwise acting in
a way that suggests failures to comply with the Affordable Connectivity
Program rules? Should the Commission promulgate rules providing for
spot checks by USAC or the Commission to monitor provider compliance?
Should the Commission supplement its document retention rules to
facilitate such monitoring? Should the Commission provide for a
mechanism to promptly delist or suspend providers or their agents where
there is sufficient evidence they have (1) submitted material, false
information to USAC or the Commission, (2) failed to submit information
required by the approval or election process, or (3) otherwise failed
to comply with ACP program rules? The Bureau seeks comment on this
proposal and request comments on the tools USAC and the Commission have
available or should have available to lock out and/or remove providers
from the Affordable Connectivity Program.
21. The Consolidated Appropriations Act allows a participating
provider to ``rely upon an alternative verification process of the
participating provider,'' to determine household eligibility and enroll
households in the EBB program, subject to certain conditions. Pursuant
to the process set out by the Consolidated Appropriations Act, the
``participating provider submits information as required by the
Commission regarding the alternative verification process prior to
seeking reimbursement,'' and the Commission has seven days after
receipt of the information to notify the participating provider if its
``alternative verification process will be sufficient to avoid waste,
fraud, and abuse.'' This approval allows participating providers to
verify all household eligibility criteria through their own eligibility
verification process in addition to, or instead of, using the National
Verifier. The Infrastructure Act does not modify the requirement that a
provider seeking automatic approval must have eligibility
``verification processes that are sufficient to avoid fraud, waste, and
abuse.'' However, by eliminating a provider's existing COVID-19 program
as a basis for inclusion, the Infrastructure Act does modify the types
of acceptable ``existing programs'' that a provider's alternative
verification process would incorporate to determine a household's
eligibility in the Affordable Connectivity Program. The Bureau seeks
comment on the impact of this change on the Commission's consideration
of alternative verification process requirements.
22. The Commission required alternative verification processes for
the EBB Program to be at least as stringent as methods used by the
National Verifier. To meet this standard, EBB participating providers
that use alternative verification processes need to collect a
prospective subscriber's: (1) Full name, (2) phone number, (3) date of
birth, (4) email address, (5) home and mailing addresses, (6) name and
date of birth of the benefit qualifying person if different than
applicant, (7) basis for inclusion in program (e.g., SNAP, SSI,
Medicaid, school lunch, Pell Grant, income, provider's existing
program, etc.) and documentation supporting verification of
eligibility, and (8) certifications from the household that the
information included in the application is true. The provider is
required to describe the processes it (or a third-party) uses to verify
the required information, and is required to explain why the
alternative process would be sufficient to avoid waste, fraud, and
abuse. The provider is also required to explain how it trains its
employees and agents to prevent ineligible enrollments, including
enrollments based on fabricated documents. If the alternative
verification process fails to include any of the required information,
the provider is required to explain why such information was not
necessary to prevent waste, fraud, and abuse. Finally, if a provider
without an established low-income or COVID-19 program seeks approval of
an alternative verification process, it is required to explain why it
proposes to use an alternative verification process instead of the
National Verifier eligibility determinations. The Bureau proposes to
require the same information for any provider seeking approval for an
alternative verification process in the Affordable Connectivity
Program, and it seeks comment on this proposal.
23. The Bureau proposes that providers with approved EBB Program
alternative verification processes can continue to use those processes
when enrolling households in the Affordable Connectivity Program in a
manner consistent with the Affordable Connectivity Program's revised
eligibility criteria. The Bureau seeks comment on this proposal and any
changes that would be necessary to update the alternative verification
process application to incorporate these statutory changes for the
Affordable Connectivity Program. The Infrastructure Act continues to
allow providers to use their alternative verification processes based
on the provider's eligibility requirements for its existing low-income
program and does not require alternative verification processes to
verify all of the statutory household eligibility bases for inclusion
in the Affordable Connectivity Program. Additionally, the
Infrastructure Act
[[Page 74042]]
does not modify the requirement that an alternative verification
process must be sufficient to avoid waste, fraud, and abuse, as
required by the Consolidated Appropriations Act. Thus, the Bureau
proposes that providers with existing approved alternative verification
processes may approve households for the Affordable Connectivity
Program if the household meets the criteria for the provider's existing
low-income program or the statutory eligibility requirements, and these
providers need not seek new Commission approval for their alternative
verification processes. However, the Bureau also proposes that
providers with approved alternative verification processes must seek
new Commission approval to verify any eligibility criteria not
originally contained in prior approved processes. For example, a
provider will need to seek approval from the Commission if it intends
to verify in its alternative verification process household
participation in the Special Supplemental Nutritional Program for
Woman, Infants and Children (WIC) if the provider's approved processes
do not specify WIC or if WIC is not a qualifying program for the
provider's own low-income program. The Bureau seeks comment on this
approach.
24. The household eligibility determinations made by the National
Verifier represent a strong waste, fraud, and abuse prevention tool.
The importance of the independent household eligibility reviews and
verification conducted by the National Verifier was recognized by
Congress, and the Commission has also stated that the National Verifier
is an effective tool and important protection against waste, fraud, and
abuse. During the EBB Program, the periodic updates to the National
Verifier to improve the EBB household verification process proved to be
an effective and robust tool for providers and households to
efficiently determine household eligibility. In fact, many providers
with approved alternative verification processes choose to use the
National Verifier process in addition to or in lieu of their own
alternative processes. In light of the reliance on the National
Verifier by many providers with an alternative verification process in
the EBB Program and the robust verification tools offered by the
National Verifier, the Bureau proposes to approve alternative
verification process applications only from providers with existing
low-income programs and where the provider's existing low-income
program requires the provider to use an alternative verification
process and not the National Verifier. Accordingly, providers with
existing programs that have an established eligibility approval process
that would be incompatible with the National Verifier or other
justification that prevents the provider's eligibility process from
using the National Verifier would be able to seek an alternative
verification process. The Bureau seeks comment on this proposal.
25. During the EBB Program, some providers without an established
low-income program sought approval of an alternative verification
process even where the providers had already been designated as ETCs,
had been providing Lifeline service for years, and had a history of
using the National Verifier and other USAC systems to determine
eligibility for Lifeline. These providers typically claimed they needed
an alternative verification process for efficiency reasons or
administrative ease, but their requests for approval did not address
the increased risk of waste, fraud, and abuse inherent in not using the
National Verifier. Moreover, these alternative verification processes
were untested and seemingly created only for the purpose of the EBB
Program application. The Bureau is concerned that in such cases, the
provider may not have the appropriate financial incentives to make
accurate eligibility determinations, because the Emergency Broadband
Connectivity Fund, and not the provider itself, is subsidizing the
discounted service. In contrast, a provider who is enrolling households
in its own low-income program has an adequate financial incentive to
make accurate eligibility determinations because the process was
developed to support an existing program through which the provider had
committed to subsidize the discounted service offered to eligible
households.
26. Accurately determining household eligibility is the principal
consideration for the National Verifier and its independent reviews.
The accuracy of the eligibility decision is the principal tool in
preventing improper payments and other waste, fraud, and abuse in the
EBB Program and will continue to be in the successor Affordable
Connectivity Program. A proposal to use an alternative verification
process that does not offer an explanation for why the alternative
process is necessary when the provider could easily use the National
Verifier fails to make the statutorily required showing that the
process will be ``sufficient to avoid waste, fraud, and abuse.''
Further, the National Verifier maintains a number of database
connections that produce automatic eligibility approvals that
individual providers would have to conduct through a manual application
review process. All of these considerations weigh in favor of limiting
the use of alternative verification processes to providers that
maintain an existing verification process used for its own low-income
program or other purpose unrelated to the EBB Program, Affordable
Connectivity Program, or similar federal assistance program. The Bureau
seeks comment on its proposal and the Commission's authority to limit
approvals of an alternative verification process to such providers.
27. The Affordable Connectivity Program will provide eligible
households a discount on broadband internet access service and a
connected device. Consistent with the EBB Program requirements, the
Bureau interprets the Infrastructure Act to limit the ACP benefit to
one-per-household for both the monthly benefit and the one-time
connected device reimbursement. In administering the EBB Program, the
Commission used the definition of ``household'' under the Lifeline
rules and did not limit the number of participating households that
could be located at a particular address. The Bureau proposes to apply
this same definition and approach to the Affordable Connectivity
Program. Consistent with the approach in the EBB Program, the Bureau
also proposes (1) to make available a Household Worksheet (with
necessary modifications specific to the Affordable Connectivity
Program) to help a household determine whether it is an independent
economic household from other existing ACP subscribers at the same
address, and (2) to require ACP providers using their own approved
alternative verification processes to include measures to confirm that
a household is not receiving more than one ACP benefit. The Bureau
seeks comment on these proposals. Are any changes to the administration
of the one-per-household requirement warranted for the Affordable
Connectivity Program? For purposes of individual and household
duplicate checks, should the Commission make clear that service
providers are also required to check their internal records?
28. The Bureau next seeks comment on implementing the eligibility
criteria for the Affordable Connectivity Program. A household may
qualify for the Affordable Connectivity Program if at least one member
of the household: (1) Meets the qualifications for participation in the
Lifeline program (with the modification that the qualifying household
income threshold is at or below 200 percent of the Federal
[[Page 74043]]
Poverty Guidelines for a household of that size); (2) has been approved
to receive school lunch benefits under the free and reduced price lunch
program under the Richard B. Russell National School Lunch Act, or the
school breakfast program under section 4 of the Child Nutrition Act of
1966; (3) has received a Federal Pell Grant under section 401 of the
Higher Education Act of 1965 in the current award year; (4) meets the
eligibility criteria for a participating provider's existing low-income
program, subject to approval by the Commission and any other
requirements deemed by the Commission to be necessary in the public
interest; or (5) receives assistance through the WIC Program,
established by section 17 of the Child Nutrition Act of 1996 (42 U.S.C.
1786). In addition to adding WIC as a qualifying program for ACP,
Congress in the Infrastructure Act raised the maximum income for
qualifying based on household income for purposes of the ACP from ``135
percent'' to ``200 percent'' of the Federal Poverty Guidelines for a
household of that size, and eliminated as qualifying criteria
substantial loss of income since February 29, 2020 and participation in
a provider's COVID-19 Program. Commission rules governing the
Affordable Connectivity Program will need to reflect these eligibility
changes, and the National Verifier will require modifications to
implement them.
29. The Bureau seeks comment on the qualifying benefit programs for
the Affordable Connectivity Program. In the EBB Program Order, the
Commission determined that households with students enrolled in schools
or school districts participating in the Community Eligibility
Provision (CEP) are eligible for the EBB Program regardless of whether
anyone in the household applied for school lunch or breakfast
assistance individually. The Bureau seeks comment on whether the
Commission should take the same approach for the Affordable
Connectivity Program. Should the Commission revisit in the Affordable
Connectivity Program its decision to allow EBB Program eligibility
based only on attendance at a CEP school if the household would not
otherwise qualify for the school lunch and breakfast program? Given
that the Affordable Connectivity Program is not an emergency, temporary
program like the EBB Program, and will have a longer duration than the
EBB Program, is there still a compelling reason to allow CEP student
eligibility? In a long-term program, how does the Commission assess the
risk of allowing households that are not otherwise eligible for the
school lunch and breakfast program to receive the ACP benefit? Are
there alternatives that the Commission should consider to ensure that
households seeking to qualify based on participation in the CEP would
otherwise qualify for the school lunch and breakfast program?
30. The Bureau also seeks comment on whether and how the free and
reduced price school lunch and breakfast program eligibility criteria
apply where schools elect administrative provisions under the National
School Lunch Act that have similar elements as the CEP. For example,
many students receive meals from schools that elect to participate in
alternative United States Department of Agriculture (USDA) mechanisms
without annual eligibility determinations that, like the CEP, may
result in students receiving free school breakfast or lunch even though
the student did not individually apply for assistance. Would expanding
the eligibility of the Affordable Connectivity Program to include
students attending Provision 2 and Provision 3 schools broaden
participation in the Affordable Connectivity Program to low-income
households the Infrastructure Act intends to benefit? Given that the
Affordable Connectivity Program is not an emergency program, is the
risk of allowing households to qualify under these provisions, even if
the household would not otherwise qualify for the school breakfast and
lunch program, justified? Should the Commission only permit households
to enroll in the Affordable Connectivity Program based on these
provisions if the household would individually qualify for the school
lunch and breakfast program, even if the household is not required to
submit an annual application? While Provisions 2 and 3 require schools
to provide school meals at no charge to all participating students,
schools with high rates of poverty are most likely to use these
provisions. With respect to the possible inclusion of Provisions 2 and
3, do the existing information collection and documentation
requirements for the school lunch and breakfast program already cover
the types of documentation that would be sufficient for the Affordable
Connectivity Program to demonstrate participation in Provision 2 or 3,
or should the Commission revise its documentation requirements to
accommodate their inclusion? Are there databases that identify which
schools use Provisions 2 or 3? Is there a potential for waste, fraud,
and abuse associated with any documentation for Provisions 2 or 3 that
the Commission should not rely on for purposes of demonstrating
eligibility for the Affordable Connectivity Program?
31. For households seeking to qualify for the Affordable
Connectivity Program based on a current student's participation in a
school lunch or breakfast program, the Bureau proposes allowing
households to qualify based on documentation from the current school
year in which they submit their ACP application or the school year
immediately preceding their ACP application submissions. This approach
would ensure that households are not precluded from participation in
the Affordable Connectivity Program due to school closures or school
participation in non-annual eligibility determination processes. The
Bureau seeks comment on this idea.
32. Pursuant to the statute, a household with a student who
receives free or reduced-price school lunch or breakfast can qualify
for the Affordable Connectivity Program through the National Verifier,
a service provider's alternative verification process, or school-based
eligibility verification. Households that seek to enroll in the EBB
Program via the National Verifier based on participation in a school
lunch or breakfast program at a non-CEP school are required to provide
specific information and documentation at the time of enrollment,
including the name of the consumer or benefit qualified person,
qualifying program, the name of the school or school district that
issued the documentation, issue date of the documentation (subject to
the applicable time limitations) that aligns with the benefit period,
and a letter from the school or school district confirming that a
member of the household is approved to participate in the school or
lunch or breakfast program during the allowed time period. Service
providers using an approved alternative verification process are
subject to strict subscriber information collection and document
retention requirements. The Bureau proposes that the Commission extend
these same requirements to the Affordable Connectivity Program, with
modifications to the acceptable documentation dates to reflect the
expected longer duration of the Affordable Connectivity Program. The
Bureau seeks comment on this proposal. For National Verifier
enrollments, if the benefit qualifying person attends a school that
participates in the CEP, the household selects the school during the
application process. Are there any modifications that the Bureau should
consider to guard against potential, waste, fraud and abuse where
households seek to enroll through the
[[Page 74044]]
National Verifier based on participation in the CEP? For example,
should the household be required to provide documentation that the
benefit qualifying person attends the school that participates in the
CEP?
33. For the EBB Program, where a service provider relies on a
school to verify student eligibility for the school lunch or breakfast
program, the service provider must certify that it relied on school-
provided information and must retain documentation of (1) the school
providing the information, (2) the program that the school participates
in, (3) the household that qualifies (and qualifying student) and (4)
the program the household participates in. Where school-based
eligibility verification is used, does the information that providers
are required to provide to the NLAD and related document retention
requirements sufficiently guard against waste, fraud and abuse? If not,
what additional information should be transmitted to the NLAD or what
additional documentation should the Commission require service
providers to retain where school-based eligibility verifications are
used? Is there any additional information that the Commission should
require service providers or households to provide at the time of
enrollment where a household seeks to enroll based on participation in
the school lunch or breakfast program? Should the Commission require
service providers to retain any additional documentation of a specific
household's ACP eligibility through participation in a school lunch or
breakfast program? Should the Commission make any other changes to the
required documentation for any other qualifying programs where
household eligibility is verified through manual reviews in the
National Verifier?
34. The Infrastructure Act permits participating providers to use
the same three methods of verifying household eligibility for the
Affordable Connectivity Program that are currently used for the EBB
Program: (1) Use of the National Verifier and the NLAD; (2) reliance on
the participating provider's alternative verification process, subject
to certain conditions; and (3) reliance on a school to verify
eligibility under the free and reduced price school lunch or school
breakfast program. For the Affordable Connectivity Program, the Bureau
proposes using the same processes used in the EBB Program for tracking
the eligibility of households and verifying household eligibility, with
necessary modifications to conform to the ACP requirements, including
changed eligibility criteria. To guard against duplicative support, the
Bureau proposes requiring all participating providers to track
enrollments of eligible households in the Affordable Connectivity
Program in the NLAD, including households whose eligibility is verified
through a permitted alternative verification process or school-based
verification, and to update subscriber information in the NLAD within
10 business days of receiving the changed information. The Bureau seeks
comment on this proposal.
35. The Commission's EBB Program rules prohibit participating
providers from enrolling or claiming support for any prospective
subscriber if USAC cannot verify the subscriber's status as alive,
unless the subscriber produces documentation to the National Verifier
to demonstrate his or her identity and status as alive. The Bureau
proposes to apply the same requirements to the Affordable Connectivity
Program, and it seeks comment on that proposal. To promote program
integrity, the Bureau also proposes directing USAC to ensure through
its program integrity reviews that households whose eligibility is
verified through an alternative verification process or other non-
National Verifier process comply with this requirement.
36. If a household's eligibility cannot be verified through the
National Verifier's automated databases, the Bureau proposes applying
the same documentation requirements used for the EBB Program to the
qualifying programs for the Affordable Connectivity Program, to the
extent consistent with its proposals in this Public Notice. As noted in
this document, the Infrastructure Act added WIC as a qualifying program
for the ACP. If WIC participation cannot be validated through an
automated database connection at launch of the Affordable Connectivity
Program, what documentation should the Commission require as the Bureau
works to establish an automated connection capable of qualifying WIC
participants? For example, do WIC participants receive benefit award
letters, approval letters, statements of benefits, or benefit
verification letters? Is there any documentation the Bureau should not
permit to verify WIC participation for program integrity reasons? How
should the Bureau consider WIC Electronic Benefit Transfer (EBT) cards?
Do these cards contain sufficient identifying information that would
prevent someone who is not enrolled in WIC from using the card to
support their enrollment in the Affordable Connectivity Program? In
contrast to the other benefit qualifying programs, WIC is designed to
provide benefits over a shorter time period, and eligibility is based
on income and specific eligibility categories for women, infants and
children. For WIC, the benefit period typically lasts six months to one
year, after which time the participant must renew their eligibility to
continue receiving WIC benefits. What, if any, impact should this have
on administering WIC as a qualifying program for the Affordable
Connectivity Program? Is the annual recertification requirement that
the Bureau proposes below sufficient for households that qualify for
the Affordable Connectivity Program based on participation in WIC,
given the shorter-term benefit period in the program? Are there any
other considerations in administering WIC as a qualifying program?
37. Enrollment. Consistent with Lifeline and the EBB Program, the
Bureau proposes that the Commission require, for the Affordable
Connectivity Program, the program-wide use of NLAD as a tool for
enrollment, as well as reimbursement calculations and duplicate checks
in all states, territories, and the District of Columbia, regardless of
a state's NLAD opt-out status in the Lifeline program. The Bureau seeks
comment on this approach. The Bureau proposes that providers be
required to transmit to NLAD information about the subscriber, service,
connected device, the reliance on an AVP or school eligibility
determination to verify a subscriber's eligibility, and whether the
household lives on Tribal lands or high cost areas that are eligible
for the enhanced support of up to $75 a month for ACP-supported
service. The Bureau seeks comment on this proposal and the other
information that should be submitted to NLAD to assist in the
administration of the Affordable Connectivity Program and to provide
USAC and the Commission with information to support the providers'
claims for reimbursement.
38. Consistent with the EBB Program the Bureau proposes requiring
prospective ACP subscribers who are not already enrolled in Lifeline to
submit an application in order to enroll in the Affordable Connectivity
Program. Households enrolled in the Lifeline program are automatically
eligible for the Affordable Connectivity Program based on their
Lifeline eligibility, and as with the EBB Program, the Bureau proposes
not to require these households to submit new applications or new
eligibility documentation to participate in the Affordable Connectivity
Program, provided that the household opts in or affirmatively requests
enrollment in the Affordable Connectivity Program and is already
[[Page 74045]]
enrolled in NLAD. That said, the Bureau proposes that existing Lifeline
subscribers in the NLAD opt-out states of California, Oregon, and Texas
should have the option to submit an application to the National
Verifier for the Affordable Connectivity Program if they choose.
Because state administrators or agencies in those states continue to
verify household eligibility for Lifeline consumers, USAC generally
does not have real-time data regarding subscriber Lifeline eligibility
for purposes of automatic enrollment in the EBB Program like it does
for Lifeline consumers whose eligibility is confirmed by the National
Verifier. These three NLAD opt-out states have worked closely with USAC
since the start of the EBB Program to streamline the EBB enrollment
process for subscribers by increasing the frequency of eligibility
listings to USAC on a weekly basis. As a result, service providers in
the NLAD opt-out states are able to enroll existing Lifeline
subscribers whose eligibility was verified by the state based on the
most recent weekly update, rather than having to wait until the state's
next monthly file is submitted to USAC. USAC and the Bureau will
continue to work with the states to ensure that these weekly updates
will continue for purposes of enrolling in the Affordable Connectivity
Program existing Lifeline subscribers in California, Oregon, and Texas,
although the National Verifier application will also be available as a
way for Lifeline consumers in these states to verify their ACP
eligibility. The Bureau seeks comment on whether USAC should make
additional changes to this process to administer the Affordable
Connectivity Program. Are there any other challenges with relying on
NLAD data from opt-out states, and if so, how can those challenges be
overcome to facilitate the administration of and enrollment in the
Affordable Connectivity Program?
39. As is permitted for the EBB Program, the Bureau proposes
allowing households seeking to enroll in the Affordable Connectivity
Program to verify their identity through the last four digits of their
Social Security number or other approved identity documentation. The
Bureau seeks feedback on the practice of allowing eligible consumers to
verify their identity by submitting documentation rather than providing
the last four digits of their Social Security number. Did this more
flexible approach encourage participation by households that otherwise
would not have completed an application for the EBB Program? If the
Commission adopts this approach for the Affordable Connectivity
Program, how can USAC improve the experience for applicants? Are there
other sources, systems or databases the Bureau could rely upon to more
quickly qualify households providing alternative documentation?
40. Where participating providers rely on the National Verifier to
enroll households in the Affordable Connectivity Program, the Bureau
proposes requiring eligible households to interact directly with the
National Verifier to apply for the Affordable Connectivity Program, as
is currently required for the EBB Program and the Lifeline program.
Consistent with the Lifeline program and the EBB Program, the Bureau
proposes to provide access to an online portal and application form to
apply for the Affordable Connectivity Program, and make available an
eligibility check application programming interface (API) that allows
providers to help consumers with the ACP application. The Bureau also
proposes using the National Verifier automated database connections
wherever possible to verify household eligibility for the Affordable
Connectivity Program, and extending to the Affordable Connectivity
Program the existing manual documentation review process used for the
EBB Program (with necessary modifications to reflect the ACP
eligibility criteria) where eligibility cannot be verified through a
National Verifier automated database. The Bureau seeks comment on these
proposals.
41. The Infrastructure Act made several changes to the eligibility
criteria for the Affordable Connectivity Program. As a result of these
changes, the systems at USAC will require significant development to,
among other capabilities, create a new application portal in the
National Verifier and make changes in the NLAD to permit and track
enrollments under these new qualifying programs. The Bureau seeks
comment on ways to expedite the development and testing of the new
application, and on any other suggestions for readying the relevant
systems to accept enrollments starting on December 31, 2021, as
permitted by the Infrastructure Act, for households that qualify for
the Affordable Connectivity Program based on the changed eligibility
criteria.
42. De-enrollments. To guard against waste, fraud and abuse, the
Bureau proposes to extend the de-enrollment requirements applicable to
both the Lifeline and EBB Programs to the Affordable Connectivity
Program, with any necessary modifications to conform to the eligibility
criteria for the Affordable Connectivity Program. The Bureau similarly
proposes to require participating providers to transmit the de-
enrollment information to the NLAD within one business day of de-
enrollment. Based on the Bureau's experience with the EBB Program, it
believes it would be beneficial for USAC to continue to process de-
enrollment requests directly from subscribers and notify the
subscriber's provider when those de-enrollments occur. The Bureau seeks
comment on these proposals. To the extent technically feasible, should
there be a consumer self-service option to terminate Affordable
Connectivity Program service? Could service providers give consumers a
self-service option to terminate Affordable Connectivity Program
service through their systems?
43. As with the Lifeline and EBB Programs, the Bureau also proposes
to apply a usage requirement to the Affordable Connectivity Program.
Where a household receives a service for which a fee is not assessed or
collected, limiting reimbursement to households who are actually using
a supported service is an important safeguard against waste, fraud, and
abuse. The Bureau proposes applying the same usage definition for the
Lifeline and EBB Programs to the Affordable Connectivity Program, and
similarly propose to prohibit participating providers from claiming
Affordable Connectivity Program reimbursement for households that are
not actually using a service for which a fee is not assessed or
collected. Is the existing definition of usage adequate and does it
include sufficient methods by which subscribers receiving fixed
broadband service could demonstrate usage? Should the test be modified
to ensure a subscriber is actually using a supported service rather
than simply keeping a device powered?
44. The Bureau seeks comment on whether the proposed definition of
usage could result in service providers receiving payment where the
subscriber is not actually using their ACP service. In the 2019
Lifeline Notice of Proposed Rulemaking, 84 FR 71338, December 27, 2019,
the Commission asked whether it may be possible for a provider to
install an application ``app'' on an end-users device that would
``use'' data without the end-user's knowledge. This, and any other data
usage that is not generated by the consumer would make it difficult to
differentiate legitimate subscriber usage from data usage that happens
without the knowledge or direction of the subscriber. The Lifeline
usage rules require that the activities that demonstrate usage must be
``undertaken
[[Page 74046]]
by the subscriber.'' Would making clear that usage of data means usage
of data initiated by the ACP subscriber rather than fabricated by an
app or some other means sufficiently address this issue? Are there
other steps that the Commission should take to ensure that where ACP
service is subject to the usage requirement, service providers are only
being reimbursed where the end user is actually using the service? What
records should service providers be required to maintain to
sufficiently demonstrate actual subscriber usage of their ACP service
during an audit or investigation?
45. Alternatively, for purposes of the Affordable Connectivity
Program should the usage documentation standards that have historically
been used in Lifeline, with the need to rely on records supporting
subscribers' calling, texting and billing activity, as well as data
usage, be discontinued in favor of a different model for the Affordable
Connectivity Program? For instance, should the Commission mandate a
third-party app on subscriber devices that confirms the subscriber is
accessing its ACP-supported service so that records substantiating
subscriber usage no longer need to be reviewed? Or could subscribers
simply be required to contact USAC periodically, to confirm they want
to continue with the service? Would these proposals raise any privacy
concerns? Are there other alternatives the Commission should consider
to ensure that payments are only issued for ACP service the subscriber
is actually using where required by program rules?
46. Consistent with the Lifeline program, for purposes of the
Affordable Connectivity Program, for households that subscribe to an
ACP service that is subject to a usage requirement, the Bureau proposes
a 30-day non-usage period, and a 15-day period for households to cure
their non-usage. As with the Lifeline program, households that
subscribe to an ACP service that is subject to a usage requirement and
have not used their ACP-supported service in 30 days cannot be claimed
for reimbursement after the initial 30-day non-usage period unless and
until they have cured their non-usage. In order to cure non-usage, an
ACP subscriber would need to demonstrate usage as defined in the
Lifeline rules, and the Bureau proposes to extend the Lifeline usage
rules to the Affordable Connectivity Program, with any modifications
the Commission may adopt for the Affordable Connectivity Program. The
Bureau seeks comment on these proposals. Given that the Affordable
Connectivity Program is not an emergency program and will have a longer
duration than the EBB Program, the Bureau further proposes requiring
the de-enrollment of households who do not cure their non-usage in the
permitted cure period, as is currently required in the Lifeline
program. Are any modifications warranted to administer non-usage and
de-enrollment for non-usage requirements for the Affordable
Connectivity Program?
47. Recertification. The Bureau next seeks comment on implementing
a subscriber recertification requirement for the Affordable
Connectivity Program to ensure enrolled subscribers continue to meet
the ACP eligibility criteria from year to year. Annual recertifications
are an important program safeguard for the Lifeline program to ensure
the continued eligibility of enrolled subscribers. Accordingly, because
the Affordable Connectivity Program is expected to extend multiple
years, the Bureau proposes requiring households enrolled in the
Affordable Connectivity Program to recertify their eligibility for the
Affordable Connectivity Program at least annually (e.g., once a
calendar year), starting with the calendar year following their
enrollment in the Affordable Connectivity Program. For purposes of this
requirement, should the Commission adopt the existing Lifeline rules
and processes governing recertification and de-enrollment of households
who do not pass recertification or fail to timely recertify? For EBB
enrolled subscribers that transition to the Affordable Connectivity
Program, what should be considered their enrollment date for the
purposes of any ACP recertification requirement?
48. For households whose eligibility for the Affordable
Connectivity Program is verified through the National Verifier, the
Bureau proposes to model recertification after the Lifeline program,
where USAC is responsible for recertification for households who
enrolled through the National Verifier. To recertify these households,
USAC uses the automated databases in the National Verifier for
recertification, and provides a paper recertification form, and online
and Interactive Voice Response recertification option for households
whose eligibility cannot be verified through the National Verifier's
automated database connections. To promote administrative efficiency
and minimize the administrative burden on providers and consumers, to
the extent that it is technically feasible to track recertification of
a particular subscriber across the Lifeline program and Affordable
Connectivity Program, should the Commission allow households enrolled
in both programs to rely on their Lifeline program recertification,
including Lifeline program recertifications conducted by state agencies
or state administrators for the opt-out states, to satisfy any
recertification requirements the Bureau adopts for the Affordable
Connectivity Program? Given the difference in eligibility criteria
between the Affordable Connectivity and Lifeline programs, what
bearing, if any, should a consumer's unsuccessful recertification for
the Lifeline program have on the household's participation in the
Affordable Connectivity Program? Should additional consumer outreach or
notification be required for ACP households that did not pass or did
not timely respond to a Lifeline recertification attempt? Should an
unsuccessful recertification for the Lifeline program automatically
trigger a need to verify continued eligibility for the Affordable
Connectivity Program if the subscriber relied on their enrollment in a
Lifeline-qualifying program to qualify for the Affordable Connectivity
Program? Is there anything else the Bureau should consider concerning
the interplay between Lifeline recertifications and any recertification
requirement the Commission may adopt for the Affordable Connectivity
Program?
49. How should the recertification process work for households
enrolled in the Affordable Connectivity Program whose initial
eligibility was verified through a process other than the National
Verifier? Should the Commission require USAC to perform the
recertifications for these households, or should ACP participating
providers be required to perform recertifications? To the extent it is
technically and administratively feasible, would requiring USAC to
recertify all ACP subscribers best promote program integrity and
administrative efficiency? If ACP participating providers perform the
recertifications for households enrolled in the Affordable Connectivity
Program through a process other than the National Verifier, should the
Commission require those providers to submit their recertification plan
to the Bureau for prior approval? If so, how should that approval
process work? If ACP participating providers conduct recertifications,
should the Commission require them to follow the customer notification
timelines and processes that USAC currently uses for Lifeline
recertifications? Where USAC conducts recertifications for the Lifeline
program, for example, the annual recertification is due by the
subscriber's anniversary date, rather than using a single uniform
recertification deadline for all
[[Page 74047]]
subscribers. The Bureau expects that, for the Affordable Connectivity
Program, USAC and any service providers conducting recertifications
would take a similar approach. How should households be timely de-
enrolled from the Affordable Connectivity Program upon a failed
recertification effort? Is there anything else the Commission should
consider in establishing a recertification requirement for households
enrolled in the Affordable Connectivity Program?
50. Just as in the EBB Program, the Affordable Connectivity Program
will permit eligible households to receive a discount off the cost of
broadband service and certain connected devices, and participating
providers to receive a reimbursement for providing such discounts.
Similar to the EBB Program, the Infrastructure Act defines ``internet
service offering'' as broadband internet access service provided to a
household by a broadband provider. Broadband internet access service
retains the definition provided in Sec. 8.1(b) of the Commission's
rules.
51. The Infrastructure Act also adds a new requirement that a
participating provider ``shall allow an eligible household to apply the
affordable connectivity benefit to any internet service offering of the
participating provider, at the same terms available to households that
are not eligible households.'' The Bureau seeks comment on whether
``any internet offering'' should include legacy or grandfathered plans
or whether it only includes current offerings of a provider to new
customers. The Bureau also seeks comment on how providers will make all
of their offerings available for the Affordable Connectivity Program.
In particular, the Bureau seeks comment on how providers expect to
manage available offerings to ensure compliance with these statutory
requirements. It may be that providers offer different plans in
different geographies. The Bureau seeks comment on the extent to which
geography affects plan availability, and whether some households will
be more limited in their ability to apply the affordable connectivity
benefit than others? How much time will providers need to assess their
available offerings, and does an expedited timeline for launch of the
ACP impact a provider's ability to go from hand-picking qualifying
service offerings for inclusion in the EBB Program to the comprehensive
approach described in the Act?
52. The Bureau next seeks comment on whether the Commission should
provide clarity on the internet service offerings that are eligible for
reimbursement in the Affordable Connectivity Program. In the EBB
Program Order, the Commission declined to apply minimum service
standards to the internet service offerings eligible for EBB discounts.
Should the Commission reconsider this approach for the Affordable
Connectivity Program? Does the Commission have the authority under the
Infrastructure Act to institute minimum service standards for the
Affordable Connectivity Program? The Affordable Connectivity Program
will feature a lower standard support amount of $30. Would setting
minimum service requirements help to ensure that households are
receiving a competitive broadband service that is covered by the
support amount? Should the Commission consider other approaches to
ensure that households are receiving a competitive service offering?
Are such standards necessary given the additional consumer protections
in the Infrastructure Act and the requirement that providers make all
of their service offerings available for the Affordable Connectivity
Program? If the Commission were to adopt minimum service standards,
what should the minimum standards be? Should the Commission adopt the
minimum service standards in place for the Lifeline program or
different standards? How should the Affordable Connectivity Program
standards evolve over time? Given the functional differences between
how a household uses a mobile and fixed internet connection, the Bureau
seeks comment on whether different service standards should be
considered for mobile versus fixed internet service, and if so, what to
base those standards on.
53. While the Infrastructure Act removes the EBB Program
requirement that a qualifying internet service offering be ``offered in
the same manner and on the same terms, as described in any of such
provider's offerings for broadband internet access service to such
household as of December 1, 2020,'' it does allow a household to apply
the ACP benefit to any internet service offering ``at the same terms
available to households that are not eligible households.'' The Bureau
seeks comment on the contours and administrability of this requirement.
The Bureau seeks comment on whether this requirement ensures that
eligible households receive competitive broadband service offerings,
and what additional safeguards and requirements, if any, the Commission
could adopt. For example, the Commission viewed the December 1, 2020
requirement for acceptable service offerings in the EBB Program ``as a
method of avoiding arbitrage opportunities and waste in the [EBB
Program] by allowing unscrupulous providers to take advantage of the
increased subsidy available.'' Does the Commission have the authority
under the Infrastructure Act to impose any limitations on the services
offered? The Bureau seeks comment on rules that would enhance the
opportunity that low-income households participating in the Affordable
Connectivity Program would receive a competitive internet service
offering that meets the needs of the household. While households should
be able to apply the ACP benefit to an internet service offering of
their choosing, should the Commission prevent providers from
introducing into the marketplace internet service offerings that seek
only to maximize the ACP benefit reimbursement while not actually
providing households with a market-rate internet service? Should the
Commission be concerned that providers will have an incentive to raise
the price of a $15 plan to a $30 dollar plan solely to maximize the
reimbursement amount? Are there additional measures the Commission can
take to reduce price gouging and other harms? Alternatively, will
providers respond to the requirement that Affordable Connectivity
Program and non-ACP subscribers have access to the same service
offerings by restricting offerings of certain plans for all of their
customers? How can the Commission reduce the incentive for providers to
enact pricing or offering strategies that may harm non-eligible
households?
54. Under the EBB Program, providers are required to make available
``at least one EBB Program-reimbursed service to each of its eligible
households within its service area.'' The Bureau seeks comment on
whether the Commission should adopt this policy for the Affordable
Connectivity Program. Is this requirement still necessary given that an
ACP household may apply the benefit to any broadband service offered by
the provider? The Bureau also seeks comment on providers' ability to
quickly implement the Infrastructure Act's requirement that a household
may apply the benefit to any internet service offering of the
participating provider, at the same terms available to households not
participating in the Affordable Connectivity Program. What provider
billing and system changes are necessary in order to provide discounted
broadband service to ACP households? The Bureau suspects that the
requirement to make the benefit
[[Page 74048]]
available to all broadband services will have a significant impact on
providers and it seeks comment on whether providers would be prepared
to participate in the Affordable Connectivity Program by the
Infrastructure Act's contemplated effective date of December 31, 2021.
The Bureau also seeks comment on whether the statutory deadline for
implementing this change could deter providers from electing to
participate in the program or cause them to delay their election until
their systems were prepared to support the application of the benefit
across all available broadband services.
55. Multiple Dwelling Units. The Bureau also seeks comment on
whether the Commission should adopt measures to make it easier for
residents in multiple dwelling units with bulk broadband providers to
participate in the Affordable Connectivity Program. In the EBB Program
Order, the Commission determined that eligible households that ``live
at a single address, such as senior and student living, mobile home
parks, apartment buildings, and federal units, that receive service as
part of a bulk billing arrangement where the households `are not
directly billed for services by their internet service provider, but
instead pay a monthly fee for broadband services to their landlord'''
should be permitted to participate in the EBB Program. The Commission
agreed with commenters and made the EBB Program available to such
households, ``as long as the provider is approved in the Program and
the household is eligible under the statute,'' and set out additional
guidelines for such situations. Should the Commission adopt this
flexibility in the Affordable Connectivity Program? What else should
the Commission consider about such arrangements?
56. Bundled Service Offerings. In the EBB Program Order, the
Commission found that bundled service offerings such as those offering
voice, data, and texting could be eligible for the EBB Program if such
bundled offerings were offered in the same manner and on the same terms
on or before December 1, 2020. However, the Commission declined to
allow the Emergency Broadband Benefit to be applied to the full price
of broadband-bundled video service, finding that it was not
contemplated in the statute and not necessary to ensure that consumers
in the EBB Program have a robust choice in broadband service offerings.
The Bureau proposes that, as in the EBB Program, voice, data, and text
bundled services should be eligible for ACP support, while broadband-
video bundled services should not. The Bureau seeks comment on this
proposal.
57. Associated Equipment. The Infrastructure Act modifies the
definition of the benefit to be applied to broadband service.
Specifically, the affordable connectivity benefit ``means a monthly
discount for an eligible household applied to the actual amount charged
to such household, in an amount equal to such amount charged, but not
more than $30, or if an internet service offering is provided to an
eligible household on Tribal land, not more than $75.'' The
Infrastructure Act removed a reference to ``associated equipment'' that
was included in the definition of ``emergency broadband benefit''
previously. The prior inclusion of ``associated equipment'' allowed the
Commission to include ``equipment necessary for the transmission
functions of internet service offerings supported through the EBB
Program,'' which the Commission found includes equipment such as
modems, routers, and hotspot devices and antennas. In light of this
modification of the definition, the Bureau seeks comment on whether
monthly rental costs for equipment such as modems, routers, hot spot
devices, antennas, and any other equipment that is necessary for the
transmission functions of internet service offerings should be eligible
for the affordable connectivity benefit. To the extent the Commission
makes the monthly rental costs for such equipment eligible in the
Affordable Connectivity Program, the Bureau seeks comment on whether
the Commission should continue to disallow reimbursement for upfront
costs for such equipment that a provider may charge a consumer when
they begin receiving broadband service.
58. Connected Devices. The Infrastructure Act retains the
definition of connected device and the reimbursement rate for such
devices used in the EBB Program. For the Affordable Connectivity
Program, participating providers, in addition to providing an ACP-
supported broadband service to the household, may be reimbursed up to
$100 for a connected device delivered to the household, provided that
the ``charge to such eligible household is more than $10 but less than
$50 for such connected device.'' A connected device is defined in the
statute as a laptop, desktop computer, or a tablet.
59. In the EBB Program Order, because the Consolidated
Appropriations Act declined to include cellular phones or smartphones
in the definition of connected devices, the Commission found that a
connected device could not include ``devices that can independently
make cellular calls such as large phones or phablets.'' The Bureau
proposes that the Commission adopt the same approach in the Affordable
Connectivity Program, and it seeks comment on that proposal. One EBB
Program provider has suggested the EBB Program could support some
tablets with cellular capabilities. Should the Commission provide
additional guidance or flexibility with respect to the characteristics
or features that would make a laptop, desktop, or tablet eligible under
the program?
60. The Infrastructure Act also does not alter the requirement that
a provider may not receive reimbursement for more than one connected
device per household. In the EBB Program Order, the Commission found
that there was no legal basis to allow households to receive more than
one connected device through the EBB Program. The Bureau proposes to
adopt the same approach for the Affordable Connectivity Program. The
Bureau also seeks comment on interpreting the one-time connected device
reimbursement restriction to prevent providers from claiming a device
reimbursement in the Affordable Connectivity Program for a household
that received a reimbursable connected device in the EBB Program.
Should the Commission prohibit households that received a connected
device through the EBB Program from receiving a second device in the
Affordable Connectivity Program (and therefore prohibiting providers
from claiming a connected device discount reimbursement for a household
enrolled in the Affordable Connectivity Program if that household
received a connected device through the EBB Program)? The EBB Program
Order also clarifies that participating providers must actually charge
the household a co-payment at least $10 but no more $50 before they can
receive reimbursement of up to $100 for a connected device. The Bureau
also proposes that providers be required to retain documentation
proving that the eligible household made a compliant financial
contribution towards the cost of the connected device, as well as the
amount thereof, before the provider seeks reimbursement. The Bureau
seeks comment on this proposal. In the EBB Program Order, the
Commission declined to require USAC to collect and review documentation
supporting the connected device claim. Documentation requirements serve
important protections against program waste, so the Bureau seeks
comment on whether the Commission should require a provider to submit
documentation supporting a connected device claim in
[[Page 74049]]
the Affordable Connectivity Program. Should the Commission require a
review of a provider's supporting documentation before processing the
reimbursement claim for a connected device?
61. The EBB Program Order and rules require that providers seeking
reimbursement for the connected device discount certify, under penalty
of perjury, that the reimbursement claim for the connected device
reflects the market value of the device. In determining whether the
amount claimed for the connected device reflects no more than the
market value of the device, should the Commission take into account the
amount of the co-pay collected from the household? If the Commission
were to maintain for the Affordable Connectivity Program the ``market
value'' standard used for the EBB Program, how should the market value
be determined, particularly where a device offered by a provider
through the program is not available in the retail market? What
information should the providers be required to retain and provide to
demonstrate that they claimed an appropriate amount for the device?
62. The Bureau also seeks comment on requiring that the
reimbursement amount for a connected device reflects the cost of the
connected device to the provider. For example, there are many tablets
sold for less than $100, and providers may be able to purchase them at
wholesale cost or receive volume discounts. Under the rules of the EBB
Program, in those circumstances, providers would be able to seek
reimbursement for the higher market value of the device, rather than
the cost to the provider for obtaining and delivering the device to the
household, and make a profit from the EBB Program. Should the
Affordable Connectivity Program permit providers to profit off the
benefit by receiving more funding in reimbursement than the provider's
cost to procure and supply the device? Would using a cost-based
standard allow USAC and the Commission to determine if the provider is
claiming the appropriate amount, particularly where the provider's
device is not widely available or not sold in retail stores? The Bureau
seeks comment on how the Commission can ensure that providers are not
claiming amounts beyond what it cost them to provide the device. The
Bureau also seeks comment on whether limiting providers to claiming a
reimbursement amount that reflects the cost to them of acquiring and
providing the device to the household would discourage providers from
offering connected devices eligible for reimbursement from the
Affordable Connectivity Fund? If the Commission were to adopt a cost-
based approach, what sort of incentive would providers need (e.g.,
cost-plus) in order to find offering a device worthwhile? How can the
Commission be sure that any such incentive is reasonable and does not
lead to offers of inferior devices and/or overcharge to the Affordable
Connectivity Fund or consumers?
63. In the EBB Program Order, the Commission adopted a rule
prohibiting providers from seeking connected device reimbursement for a
household if that household is not receiving the EBB for service
provided by the same participating provider, and the Commission
required claims for connected devices must be made ``concurrent with or
after the provider's first reimbursement claim for service for that
household.'' In response to feedback from providers, the Bureau
subsequently released an order waiving this rule, explaining that
granting the waiver removes a disincentive that could discourage
providers from offering connected devices if there is uncertainty about
a provider's ability to seek reimbursement for a connected device
delivered to a household that transfers its benefit to another provider
before the first provider has the opportunity to claim reimbursement
for the discounted device. Accordingly, the waiver allows providers to
seek reimbursement for a connected device provided to a household that
had been receiving an EBB-supported service from that provider at the
time the device was supplied to the household, even if the household
subsequently transferred their EBB service benefit to a different
provider. The Bureau seeks comment on allowing a provider to claim
reimbursement for a connected device where the provider delivered a
connected device and ACP-supported service to the household, but the
household transferred its benefit to a different provider before the
end of the service month. The Bureau also seeks comment on whether
other adjustments to the connected device claims process should be
considered for the Affordable Connectivity Program. What modifications
should the Commission adopt to improve the reimbursement process?
64. The Bureau also seeks comment on the process for resolving
disputes involving the connected device reimbursement process. USAC has
developed a dispute process to be applied in scenarios where a provider
seeks to claim a connected device for a household that has already been
claimed by another provider for a connected device. In order to
demonstrate that the household is eligible to be claimed by the second
provider for a connected device, perhaps because the household contends
that it did not receive the connected device from the first provider,
the second provider must notify USAC that it wishes to initiate the
dispute process. Once the second provider files a dispute, USAC will
request from the household's previous provider documentation confirming
that the connected device was delivered to the household, the household
was charged a co-pay of more than $10 but less than $50 toward the
purchase price, and the household consented to purchase the device.
USAC will then review the response and documentation provided and
determine whether the new provider is eligible to receive reimbursement
for the connected device for the household. The Bureau proposes to
maintain this dispute resolution process for the Affordable
Connectivity Program and it seeks comment on this proposal. What other
factors should the Commission consider in developing policies or
procedures for ACP connected device claims?
65. The Bureau next seeks comment on EBB household experiences
choosing qualifying connected devices for the EBB Program to determine
if there are any other improvements the Commission can make to the
Affordable Connectivity Program. Did providers offer a broad range of
device choices? Data from the EBB Program show that the vast majority
of connected devices supported were tablets, with far fewer households
receiving laptop or desktop computers. Were the devices offered to
households too restrictive or limited in function? Should the
Commission require that a connected device be able to connect to all
Wi-Fi devices, and not just certain hotspots? The Bureau also seeks
comment from providers on what factors they considered in their
decisions to offer or not to offer connected devices in the EBB
Program.
66. For the EBB Program, the Commission declined to adopt minimum
system requirements for connected devices, finding that setting such
standards ``could limit consumer choice and exacerbate barriers to
broadband service that may have existed prior to COVID-19.'' The
Commission instead said that it expected devices to support video
conferencing platforms, should be Wi-Fi enabled and have video and
camera functions. The Commission also stated that it expected that
connected devices be accessible to and usable by those with
disabilities. The
[[Page 74050]]
Bureau seeks comment on whether the Commission should adopt minimum
system requirements and other minimum specifications for connected
devices given the longer-term nature of this new program? For example,
should the Commission establish a minimum size for tablets to ensure
that the screen size is adequate for meaningful use? Given that this is
intended to be a long-term program, if the Commission does adopt
minimum system requirements, how often should they be updated, if at
all?
67. The Bureau also proposes that the Commission apply the
requirements of Sec. 54.10 of the Commission's rules to the Affordable
Connectivity Program in the same manner as those requirements are
applied in the EBB Program. Sec. 54.10 says that a ``Federal subsidy
made available through a program administered by the Commission that
provides funds to be used for the capital expenditures necessary for
the provision of advanced communications service may not be used to''
``[p]urchase, rent, lease, or otherwise obtain, any covered
communications equipment or service,'' or ``[m]aintain any covered
communications equipment or service previously purchased, rented,
leased, or otherwise obtained.'' Sec. 54.10 further notes that
``covered communications equipment or service'' is defined in section
1.50001 as ``any communications equipment or service that is included
on the Covered List,'' and section 1.50001 further defines
``communications equipment or service'' as '' any equipment or service
used in fixed and mobile networks that provides advanced communication
service, provided the equipment or service includes or uses electronic
components,'' and any device that is on a Covered List is one that
poses an unacceptable risk to the national security of the United
States or the security and safety of United States persons. As
discussed in this document, a connected device supported by the
Affordable Connectivity Program includes a laptop, desktop computer, or
tablet, and the Bureau believes that funds used for such devices could
reasonably be considered to be funds for capital expenditures, and
further that such capital expenditures could reasonably be considered
to be ``necessary for the provision of advanced communications
service'' as defined in section 1.50001 and contemplated by Sec.
54.10. The Bureau seeks comment on the application of Sec. 54.10 to
the Affordable Connectivity Program and on how the Commission and USAC
can verify a provider's compliance with this requirement.
68. Tribal Lands Benefit. The Affordable Connectivity Program
retains from the EBB Program the enhanced, $75 per month subsidy for
households located on Tribal lands. For the EBB Program, the Commission
adopted the definition of Tribal lands used in the Lifeline program.
That definition covers ``any federally recognized Indian tribe's
reservation, pueblo, or colony including former reservations in
Oklahoma; Alaska Native regions established pursuant to the Alaska
Native Claims Settlement Act (85 Stat. 688); Indian allotments;
Hawaiian Homes Lands--areas held in trust for Native Americans by the
state of Hawaii, pursuant to the Hawaiian Homes Commission Act, 1920
July 9, 1921, 42 Stat. 108, et seq. as amended, and any land designated
as such by the Commission for purposes of this subpart pursuant to the
designation process in Sec. 54.412.'' The Bureau proposes that the
Commission use the same Tribal lands definition from Lifeline and the
EBB Program for determining the areas that would qualify for the
enhanced benefit in the Affordable Connectivity Program, as well as use
the same maps for Tribal lands that are used in those predecessor
programs. The Bureau seeks comment on this proposal and on using
existing USAC processes for verifying that an eligible household is
located on Tribal lands. The Bureau also seeks comment on whether the
off-reservation Tribal land designation process for Lifeline in Sec.
54.412 of the Commission's rules should be adopted and used in the
Affordable Connectivity Program. Should the Commission consider other
changes to the definition of Tribal lands? Are there other factors the
Commission should consider?
69. High-Cost Areas. The Infrastructure Act also provides for a
separate enhanced benefit for households that are served by providers
in high-cost areas. The Infrastructure Act requires the Commission to
establish a mechanism by which an ACP participating provider in a high-
cost area, as defined in a separate section of the Infrastructure Act,
may receive an enhanced benefit of up to $75 for broadband service
``upon a showing that the applicability of the lower limit under
subparagraph A [the $30 rate] to the provision of the affordable
connectivity benefit by the provider would cause particularized
economic hardship to the provider such that the provider may not be
able to maintain the operation of part or all of its broadband
network.'' The Bureau seeks comment on how the Commission can best
administer this provision efficiently and with a minimal burden on
qualifying households and providers.
70. As a preliminary matter, ``high-cost area'' is defined
elsewhere in the Infrastructure Act as the ``unserved area in which the
cost of building out broadband service is higher, as compared with the
average cost of building out broadband service in unserved areas in the
United States (as determined by the Assistant Secretary [of Commerce
for Communications and Information], in consultation with the [Federal
Communications] Commission).'' The Act further provides that factors to
be incorporated into this determination are: (1) The remote location of
the area; (2) the lack of population density of the area; (3) the
unique topography of the area; (4) a high rate of poverty in the area;
or (5) any other factor identified by the Assistant Secretary, in
consultation with the Commission, that contributes to the higher cost
of deploying broadband service in the area.''
71. Given that the distribution of the enhanced benefit depends on
a mechanism that is based on a determination of high-cost areas
developed primarily by a separate agency, the enhanced reimbursement to
providers for broadband services in high-cost areas cannot be provided
until the National Telecommunications and Information Administration
(NTIA) identifies such high-cost areas. The Bureau seeks comment on how
this mechanism should work once NTIA makes the determination of high-
cost areas. What should a provider be required to show to establish
that there would be a ``particularized economic hardship to the
provider such that the provider may not be able to maintain the
operation of part or all of its broadband network'' if the provider is
limited to providing a discount of only $30? Should the Commission
adopt a specific standard or test for such hardship, and if so, what
should it be? Who should decide whether the provider has met such a
standard? How should aggrieved providers appeal decisions related to
this standard? How should the Bureau take into consideration other
subsidies and financial benefits used by the providers to deploy
broadband service in these high-cost areas when evaluating provider
requests for the enhanced benefit? Are there administrative steps the
Commission can take while the NTIA is working to identify the
qualifying high-cost areas to speed the development of the mechanism?
The Bureau seeks comment on any other
[[Page 74051]]
matters related to the mechanism for high-cost areas.
72. The Bureau proposes to provide reimbursement for discounted
services and connected devices delivered to a qualifying household
after a provider has elected to participate in the Affordable
Connectivity Program. The Bureau proposes that participating providers
be reimbursed through a process similar to the EBB Claims System
administered by USAC, and subject to all the requirements of the
Lifeline Claims System. In both the Lifeline and EBB programs,
providers are required to submit a reimbursement request through USAC's
Claims System based on the number of households enrolled in the NLAD on
a specific date each month, called a snapshot date. Providers must
review the snapshot report, validate the households for which they are
requesting reimbursement, indicate a reason for any unclaimed
subscribers, and review, correct, and certify the requested
reimbursement amount. In the EBB Program, the Commission also
established a uniform snapshot date of the first of each month for EBB
claims, finding that having a uniform snapshot date brings efficiencies
to the reimbursement process by restricting support to eligible
subscribers that are enrolled in NLAD by the snapshot date. The
Commission also found that using a uniform snapshot date removes
uncertainties for providers regarding the amount that could be claimed
if the Commission allowed providers to claim subscribers on a pro-rata
basis. For the Affordable Connectivity Program, the Bureau seeks
comment on whether the Commission should also adopt a uniform snapshot
date for determining the households that are eligible to be claimed for
service in a service month, and whether the snapshot date should be the
first day of each month. Are there other alternatives to the snapshot
paradigm that the Commission should consider for the Affordable
Connectivity Program? The Bureau also seeks comment on how alternatives
to the snapshot date approach would affect the claims process for
connected devices.
73. In the EBB Program Order, the Commission required participating
providers that are applying both the Lifeline discount and the
Emergency Broadband Benefit to a household's supported broadband
service to apply the full Lifeline discount first before determining
the reimbursement amount claimed under the EBB Program in order to
maximize the scarce funding in the temporary EBB Program. The
Commission found that this approach was consistent with the
requirements of Sec. 54.403(b) of the Commission's rules regarding the
application of Lifeline support. The Bureau proposes to adopt this
approach for the Affordable Connectivity Program. The Bureau also seeks
comment on clarifying that the ``full Lifeline discount'' includes both
federal and any state support. The Bureau seeks comment on this idea
and whether the Commission would have the authority to require that any
benefit provided by a state low-income broadband program be applied
before a provider calculates the amount to claim from the Affordable
Connectivity Program.
74. The Bureau further seeks comment on whether the Commission
should allow providers to claim partial month support. The Affordable
Connectivity Program provides a more generous monthly subsidy than the
Lifeline program and will extend for a much longer period of time than
the EBB Program. As a result of these differences, should the
Commission consider allowing for partial month, pro-rated support?
Specifically, should the Commission permit a provider to claim for pro-
rated, partial reimbursement a household that receives service from the
provider during part but not all of a service month? In situations
where the household switches to a supported service offered by another
ACP provider, should both the former provider and the new provider be
able to claim pro-rated partial reimbursement for the household for the
same month? How will the use of the snapshot date work with partial
claims? What will providers need to change about their billing and
claims processes to seek partial month support? Will providers be able
to determine the appropriate amount to pass through to the household
and also claim from the program? The Commission in the EBB Program
Order found that ``employing a method that allows for partial claims
would be cumbersome to administer.'' The Bureau seeks comment on
whether the same consideration applies for a program that is not
temporary and is expected to provide support for years. The Bureau also
seeks comment on whether allowing providers to claim reimbursement for
partial month support would cause customer confusion about the discount
they should expect to receive for their ACP-supported service. Beyond
customer confusion, what other consumer impacts might result from
allowing providers to claim reimbursement for a partial month? Lastly,
the Bureau seeks comment on how disputes between providers over
appropriate partial month claims should be resolved.
75. Once a provider has received its snapshot report for the
previous month, the EBB Program requires the provider to upload and
certify its claims by the 15th day of each month, or the following
business day in the event the 15th falls on a weekend or holiday. Due
to the limited funds and temporary nature of the EBB Program, the
Commission concluded that claims cannot be revised after that mid-month
deadline. The Commission adopted this approach in part to assist USAC
and the Commission in creating a reliable forecast for the limited-
funding program. Given the newness of the EBB Program and the number of
providers participating, the Bureau has issued waivers allowing these
providers extra time to certify the reimbursement claims. Because the
Affordable Connectivity Program will extend longer than the EBB
Program, the Bureau seeks comment on whether the Commission should
offer providers more flexibility regarding the deadlines by when they
must certify their claims. The Bureau seeks comment on the length of
time providers should have for uploading and certifying their claims
for a service month. In addition to the questions posed in this
document, the Bureau seeks comment on how any flexibility offered to
providers for service claims would impact the claims process for
connected devices. Given that the connected device benefit is a one-
time benefit, would allowing providers the flexibility to delay the
certification of claims interfere with the administration of the claims
process for devices? The Bureau seeks comment on the ways the
Commission could offer flexibility to the claims process for service
and devices while guarding against waste, fraud, and abuse in the
program.
76. The Bureau also seeks comment on whether providers should be
permitted to revise their certified claims. For example, the Lifeline
program has a one-year deadline for upward revisions that increase the
amount of funding requested by the provider. The Bureau seeks comment
on a reasonable revision period. Should the Commission only allow
upward revisions in certain circumstances? If so, what are the
circumstances in which a revision would be justified? Because funding
for the Affordable Connectivity Program is limited, if the Commission
allows revisions, the Bureau seeks comment on imposing reasonable
restrictions on upward revisions in the final months of the program
when funds are close to exhaustion. Finally, regardless of any rules
permitting
[[Page 74052]]
revisions, and consistent with the Commission's directives in the EBB
Program Order, the Bureau proposes that providers would continue to
have an obligation to report any non-compliant conduct, including the
receipt of excessive payments.
77. The Infrastructure Act retains most of the provider
certifications that were required by the EBB Program. Providers are
required to certify that: Each household for which the provider is
seeking reimbursements will not be charged an early termination fee if
it later terminates a contract; each household was not subject to a
mandatory waiting period; and each household will be subject to a
participating provider's generally applicable terms and conditions.
Providers are also required to certify that each household for which
the provider is claiming reimbursement for a connected device discount
has been charged the required co-pay. Providers claiming a household
whose eligibility was determined by the provider's alternative
verification process must also certify that such households were
verified by a process that was designed to avoid waste, fraud and
abuse. The Bureau proposes that these certifications accompany each
request for reimbursement, by participating providers, and that each
certification be submitted under penalty of perjury. The Bureau also
proposes that the Commission model the certifications used in the EBB
Program to the extent that they are consistent with the rules adopted
for the Affordable Connectivity Program and include any additional
certifications that may be appropriate to satisfy new rules for the
Affordable Connectivity Program. Should the Commission add any other
certifications as a prerequisite to reimbursement? The Bureau proposes
to require providers to certify that, for any reimbursement claims for
a delivered connected device, the household was charged a compliant co-
pay and that the co-pay was collected? Should the provider also be
required to certify that it will not charge, or has not charged, the
household for the amount for which the provider is seeking
reimbursement?
78. The Infrastructure Act includes several additional provisions
related to consumer protection that build upon the existing consumer
protection measures in the Consolidated Appropriations Act. The
Infrastructure Act leaves unchanged the requirements that participating
providers must not deny an eligible household the ability to
participate in the Affordable Connectivity Program based on any past or
present arrearages with that provider. Moreover, providers are still
required to certify that subscribers will not be required to pay an
early termination fee if the eligible household being claimed elects to
enter into a contract to receive such internet service offering and
later terminates the contract. Providers must also still certify that
the subscriber was not subject to a mandatory waiting period for their
ACP-supported service based on having previously received internet
service from the provider, and that the household will be subject to
the provider's generally applicable terms and conditions as applied to
other customers. The Bureau next seeks comment on how to implement the
new consumer protection provisions included in the Infrastructure Act.
79. The Infrastructure Act prohibits a participating provider from
requiring an eligible household to submit to a credit check as a
condition for applying the ACP benefit to that provider's internet
service offerings. The Bureau proposes to prohibit providers from
inquiring, requesting or otherwise causing a consumer to submit to a
credit check, or from accessing a consumer's credit information, before
enrolling the consumer in the Affordable Connectivity Program. The
Bureau seeks comment on how the Commission should ensure that providers
are not requiring households to submit to credit checks as a pre-
requisite for enrolling in the Affordable Connectivity Program with the
provider. Should the Commission rely on self-certification and require
providers to certify under penalty of perjury that the households they
are claiming were not subject to credit checks as a condition of
enrolling with the provider for the Affordable Connectivity Program?
Should this requirement apply to all households enrolled in the
Affordable Connectivity Program, or only to new households enrolling in
the Affordable Connectivity Program? Must providers make this
certification for existing customers? The Bureau seeks comment on its
proposal and on other approaches the Commission should consider to
ensure that providers are complying with this requirement.
80. The Bureau also seeks comment on whether a credit check may be
permitted in certain circumstances. Should the Commission allow
providers to use the results of a credit check to determine which
equipment or devices may be offered to a household so long as the
household has access to equipment or devices necessary to use the ACP-
supported service? Should the Commission allow providers to use the
results of a credit check for services that are not covered by the ACP
benefit if the household selects a bundled service plan? Is permitting
use of a credit check under these limited circumstances consistent with
the statutory provision prohibiting credit checks as a condition for
participation in the Affordable Connectivity Program? Would permitting
a provider to use the results of a credit check to determine which
plans are made available to a household be inconsistent with this
statutory provision?
81. The Infrastructure Act permits a participating provider to
terminate a subscriber's access to broadband internet access service
supported by the Affordable Connectivity Program after 90 days of non-
payment. The Infrastructure Act, however, does not disturb the
requirement that providers cannot decline to enroll a household based
on ``any past or present arrearages with a broadband provider . . .''
The Bureau seeks comment on how the Commission should reconcile these
provisions. Should this non-payment provision apply only to new
instances of non-payment associated with the ACP-supported service
after a subscriber is enrolled with a participating provider? If a
subscriber is de-enrolled for non-payment, how could the subscriber
transfer the benefit to a different provider? Could a subscriber de-
enrolled for non-payment be able to participate in the Affordable
Connectivity Program with a different provider or even re-enroll with
the same provider? What options should be available to providers when
their ACP subscribers are in non-payment? Should providers be required
to mitigate the non-payment by lowering a consumer's service quality
(e.g., lowering the customer's download speeds) if the rate of the
supported service exceeds the amount of the benefit applied to the
consumer's bill? Should the Commission allow for this mitigation?
Should the Commission require providers to transmit to NLAD information
that will allow the Commission to determine whether the household is
assessed and charged a fee for the ACP-supported service after the
benefit has been applied?
82. Similar to the EBB Program, the Bureau proposes that providers
in the Affordable Connectivity Program must pass through the ACP
benefit to households before claiming reimbursement for the discount.
Based on the Bureau's experience in the EBB Program, it is concerned
that providers may fail to timely apply the ACP benefit to a
household's bill after the household is enrolled in the program. In
particular, there were complaints that some providers in the EBB
Program were
[[Page 74053]]
delaying application of the program benefit to subscriber accounts for
an unreasonable period of time. Subscribers reported to the Commission
that, because the EBB Program benefit was not timely applied, they were
sent to collections or experienced service interruptions. The Bureau
seeks comment on how to address situations where the provider fails to
apply the ACP benefit to a household's bill consistent with the
Commission's rules and, as a result, the household does not receive the
benefit and is required to pay the full amount for the internet
service. Should the Commission affirmatively require that providers
immediately apply the discount to a household's broadband bill or
consumer account upon enrollment in the Affordable Connectivity
Program? Should providers have to apply the ACP benefit to the
consumer's account before being able to terminate access to the
supported service for non-payment?
83. To prevent undue termination of service and loss of vital
benefits, the Bureau proposes to require participating providers to
provide adequate notice to subscribers of their delinquent status
before terminating the subscriber's service for non-payment. The Bureau
seeks comment on this proposal, specifically on the frequency of
notice, timing, and method of communicating the notice. The Bureau also
seeks comment on whether the Commission should develop a process by
which subscribers may dispute their provider's claim of non-payment.
The Bureau seeks comment on the process for households to dispute
allegations of non-payment with the provider and whether the provider
could terminate the household's internet service for non-payment
pending resolution of the dispute.
84. The Infrastructure Act requires the Commission to establish a
dedicated complaint process for Affordable Connectivity Program
participants to file complaints about the compliance of participating
providers with program rules and requirements, including complaints
``with respect to the quality of service received under the Program.''
The Bureau seeks comment on this requirement, generally, including how
the Commission should measure quality of service received under the
Program?
85. To date, consumers have used the Commission's Consumer
Complaint Center to file EBB-related informal complaints against their
providers with the Commission. The Commission's informal consumer
complaint process is a long-standing, free, and effective way for
consumers to raise issues with their providers and bring issues to the
attention of the Commission. To comply with the requirements of the
Infrastructure Act, the Bureau proposes that the Commission add
Affordable Connectivity Program content to the Consumer Complaint
Center to educate consumers about the program, a dedicated pathway in
the Consumer Complaint Center to file ACP-related complaints, including
notification to the providers that the complaint involves the
Affordable Connectivity Program, clear direction to consumers on how to
correctly file an ACP complaint, and dedicated Commission staff from
the Commission's Consumer and Governmental Affairs Bureau (CGB) to
review and process the complaints. The Bureau seeks comment on these
proposals. Are there other ways the Commission can provide improvements
to its existing informal consumer complaint process to benefit the
dedicated complaint process for ACP participants? What, if any,
additional changes or modifications should the Commission make to the
existing informal consumer complaint process to comply with the
Infrastructure Act requirement?
86. The Infrastructure Act also requires the Commission to act
expeditiously to investigate potential violations of program rules and
requirements and to enforce compliance. Moreover, the Commission is
permitted to impose forfeiture penalties to enforce compliance.
Consistent with this statutory direction, the Bureau proposes to use
the Commission's existing, statutorily permitted enforcement powers to
initiate investigations of program rule violations. The Bureau seeks
comment on this proposal.
87. The Infrastructure Act also requires participating providers to
provide Affordable Connectivity Program participants with information
on the Commission's dedicated complaint process. Should the Commission
require participating providers to prominently display the Commission's
contact center phone number and the website address for the
Commission's Consumer Complaint Center on the subscriber's bill, on the
provider's Affordable Connectivity Program web page, and on all of the
provider's marketing materials? The Bureau seeks comment on how
information about the dedicated consumer complaint process should be
disseminated to consumers. If a consumer complains to the participating
provider regarding an ACP-supported service or any difficulty enrolling
with the provider, does the provider have an obligation under the
statute to inform the consumer of their right to file a complaint with
the Commission? If not, should the Commission require participating
providers to do so?
88. The Infrastructure Act also requires the Commission to
regularly issue public reports regarding consumer complaints alleging
provider non-compliance with the Affordable Connectivity Program rules.
The Bureau seeks comment on what these statutorily mandated reports
should include, the frequency of such reports, and the method by which
the reports should be made available to the public. How should the
Commission balance subscriber privacy and its obligations under the
Privacy Act with the need for transparency when determining the
contents of those reports?
89. The Infrastructure Act mandates that the Commission promulgate
additional rules to protect consumers who participate in or seek to
participate in the Affordable Connectivity Program. As a preliminary
matter, the Bureau notes that the Infrastructure Act states that the
Commission must craft these particular rules ``after providing notice
and opportunity for comment in accordance with section 553 of title 5,
United States Code,'' which is the Administrative Procedure Act (APA).
At the same time, section 904(h) provides an exemption from APA
requirements for ``regulation[s] promulgated under subsection (c),''
the general rulemaking for section 904, which includes the consumer
protection requirements. The Bureau seeks comment on how the Commission
should reconcile these apparently conflicting provisions.
90. In the event that the Commission concludes that the
Infrastructure Act requires the consumer protection rules to be
implemented through APA notice-and-comment rulemaking, the Bureau seeks
comment on whether the Commission could find that there is good cause
to depart from those requirements. The APA generally requires us to
adopt rules only after publishing a Commission-level ``general notice
of proposed rule making'' in the Federal Register and providing a
reasonable comment period after the Federal Register publication. In
addition, the APA generally requires that final rules be effective no
sooner than 30 days after publication in the Federal Register.
Complying with these APA rulemaking requirements for this set of
consumer protection rules would push the effective date of these rules
at least two months beyond the December 31 effective date of the
delayed amendments to the statute. Under these circumstances, would
there be good
[[Page 74054]]
cause for other than strict adherence to the APA requirements?
91. As for the substantive topics the Commission must evaluate, the
Infrastructure Act requires that the Commission promulgate rules
prohibiting any inappropriate upselling or downselling by a provider.
The Bureau first seeks comment on what practices constitute
inappropriate upselling or downselling. Are upselling or downselling
always inappropriate, or are there instances where such practices are
beneficial to the consumer? If so, when is upselling or downselling
appropriate? What, if any, upselling or downselling practices should be
permitted?
92. The Infrastructure Act also requires that the Commission
promulgate rules that would protect consumers in the Affordable
Connectivity Program from any inappropriate requirements that a
consumer opt-in to an extended service contract as a condition of
participating in the Affordable Connectivity Program. The
Infrastructure Act, however, does not alter the requirement from the
EBB Program that participating providers must certify that an eligible
household will not be required to pay an early termination fee if the
household elects to enter into--but later terminates--a contract for
internet service. The Bureau first seeks comment on what constitutes an
inappropriate opt-in requirement. Can a provider require an opt-in to a
longer term contract before the household enrolls in the Affordable
Connectivity Program? Should the Commission prohibit opt-ins prior to
enrollment in all situations? Or are there times when pre-enrollment
opt-in is beneficial to the enrolling household? Are there
circumstances where an extended service contract would be beneficial to
consumers, and if so, what are those circumstances? The Bureau also
seeks comment on the tension between the consumer protection provisions
described in this document. How should the Commission determine the
circumstances in which requiring an extended service agreement would be
inappropriate in light of the requirement that providers must also
certify that the household will not be required to pay an early
termination fee?
93. The Infrastructure Act also prohibits providers from
implementing any inappropriate restrictions on the ability of a
customer to switch internet service offerings. Should the Commission
prohibit providers from limiting their ACP-supported service offerings
to new or existing customers? How can the Commission determine what
constitutes an inappropriate restriction? Are there any restrictions on
the ability to switch internet service offerings that would be
considered appropriate, and if so, under what circumstances would such
restrictions be appropriate? What restrictions should the Commission
prohibit or permit?
94. The Infrastructure Act requires the Commission to promulgate
rules to protect consumers from any inappropriate restrictions by a
participating provider on the ability of a consumer to switch
participating providers other than a requirement that the customer
return customer premises equipment provided by the participating
provider. The Bureau seeks comment on what constitutes an inappropriate
restriction of a consumer's ability to switch participating providers?
Should the Commission prohibit providers from seeking to recover any
discounts passed through to the household if the provider is unable to
claim the household as a result of the transfer? Should an attempt or
threat to recover the discount be considered an inappropriate
restriction on the consumer's ability to switch providers? What
restrictions should the Commission prohibit or permit? Have there been
any practices by providers in the Lifeline or EBB Programs that have
the effect of restricting a consumer from transferring their benefit to
another provider? For example, should the Commission require that a
provider offer a way for the customer to de-enroll online and also
provide sufficient customer care representatives to respond to
customers' requests or calls within a certain time (e.g., 30 minutes)?
Should failure to provide reasonable customer care operations be
considered a sufficient reason to delist the provider?
95. Additionally, the Infrastructure Act requires that the
Commission promulgate rules related to unjust and unreasonable acts or
practices that undermine the purpose, intent, or integrity of the
Affordable Connectivity Program. The Bureau seeks comment on what
additional consumer protection measures the Commission should enact to
protect prospective and existing program participants. For example, to
ensure that eligible households receive their ACP-supported service
without delay, should the Commission require that providers enroll
eligible households or transfer their benefit within a set time after
the subscriber provides affirmative consent to enroll with the provider
and that failure to do so constitutes an unjust and unreasonable
practice? The Bureau seeks comment on what steps the Commission should
take to ensure that providers pass through the Affordable Connectivity
Program discount to subscribers. The Bureau also proposes to prohibit
providers from unreasonably delaying the application of Affordable
Connectivity Program discounts to subscribers' bills.
96. The Bureau also seeks comment on how USAC and the Commission
can best address provider misconduct to avoid consumers being subject
to potential fraudulent activity that could or may have already
occurred. What is the best method to notify the public of any such
conduct? How can the Commission address circumstances where an
unauthorized provider holds itself out to consumers as a participating
provider in the Affordable Connectivity Program? How should the
Commission treat misconduct by providers authorized to participate in
the Affordable Connectivity Program? Should the Commission have
requirements for how the Affordable Connectivity Program is advertised
and promoted, with remedies for violations of those requirements? The
Bureau further proposes that failure to provide the service that is
advertised and promoted shall be considered a violation of ACP program
rules. The Bureau seeks comment on these proposals and other
protections the Commission should consider based on commenters'
experiences with the EBB and Lifeline Programs.
97. The Bureau next seeks comment on the disclosures and consumer
consent providers participating in the Affordable Connectivity Program
should be required to make before enrolling consumers in the program.
In the EBB Program, for example, the Commission required participating
providers to make several disclosures to their customers and to obtain
their consent before enrolling them in the program. Specifically,
providers are required to disclose to an existing subscriber prior to
enrollment that the EBB Program is a government program that reduces
the customer's broadband internet access service bill, is temporary in
nature, that the household will be subject to the provider's
undiscounted rates and general terms and conditions at the end of the
program if they continue to receive service, that the household may
obtain broadband service supported by the EBB Program from any
participating provider of its choosing, and that the household may
transfer its EBB Program benefit to another provider at any time.
Additionally, Lifeline enrollees must opt in or affirmatively request
enrollment in the EBB Program.
98. For the Affordable Connectivity Program, the Bureau proposes
requiring that providers make similar disclosures
[[Page 74055]]
to all consumers before enrolling them in the program. The Bureau
proposes that the disclosures describe that the Affordable Connectivity
Program is a government program that reduces the customer's broadband
service bill up to the maximum benefit amount for that household, and
that the household would be subject to the undiscounted service rate
and generally applicable terms and conditions upon de-enrollment from
the program and/or at the program's end. Given that the Affordable
Connectivity Program is a longer term program compared to the EBB
Program, the Bureau seeks comment on what the disclosure should state
about the Affordable Connectivity Program's length that would be useful
and informative for the household. The Bureau also proposes that the
disclosure notify the household of its ability to file a complaint
against its provider through the Commission's Consumer Complaint Center
and that a provider may disconnect the household's ACP-supported
service for non-payment as described in the Infrastructure Act. If the
Commission adopts a recertification requirement for the Affordable
Connectivity Program, should the disclosure advise households of that
as well? The Bureau also proposes that households be notified that they
can apply the ACP benefit to any broadband service offering of the
participating provider, at the same terms available to households that
are not eligible for ACP-supported service. The Bureau seeks comment on
these disclosures and ask what other information is essential for a
household to know about the Affordable Connectivity Program and the
rights of consumers under the program when enrolling with a provider?
As is required in the EBB Program, the Bureau proposes to require
participating providers to collect and retain documentation
demonstrating that the household was provided these disclosures before
enrolling with the provider. The Bureau seeks comment on what types of
documentation providers should retain to demonstrate compliance with
notice and consent requirements. What should constitute proof of opt-in
or affirmative consent?
99. The EBB Program rules also require participating providers to
collect and retain documentation that the provider, before enrolling an
existing subscriber in the EBB Program, gave the subscriber notice,
among other things, that they may transfer their EBB Program benefit to
another provider at any time. The EBB Program rules further require
that service providers ``obtain, from each new and existing subscriber,
consent to transmit the subscriber's information'' to the NLAD. Sec.
54.1606(d)(2) of the Commission's rules also prohibits providers from
providing EBB-supported service or claiming support for a consumer that
is currently receiving an EBB-supported service if the consumer is not
``seeking to transfer his or her Emergency Broadband Benefit.''
However, some providers report that households enrolled in the EBB
Program are being transferred to new providers perhaps even without the
household's consent or knowledge of the transfer or its effect on the
household's existing service. The Bureau seeks comment on EBB
participating providers' experience with transfers of households
between providers in the EBB Program. Are there restrictions or
requirements the Commission should implement to ensure that a household
has fully consented to transfer its benefit at the time of transfer?
Should the Commission consider limiting the number of times a household
can transfer its benefit per month in order to assist providers in
managing the application of the discount on their subscriber's ACP-
supported service? Is there some other metric or benchmark by which the
Commission can determine if or when to impose an appropriate limitation
on transfers? Should the Commission require that households
independently verify a request to transfer? How should such
verification take place? How will the Commission balance these
limitations with the importance of allowing households freedom to move
between providers? What is the harm, if any, of households switching
between participating providers, given the importance of household
choice in selecting the preferred provider? The Bureau also seeks
comment on its proposal to require participating providers, before
transferring-in a household, to clearly disclose in easily understood
language that the household will be transferred and that the ACP
benefit will now be applied to the transfer-in provider's service.
100. In addition to a disclosure requirement, the Bureau proposes
that participating providers seeking to enroll any subscriber in the
Affordable Connectivity Program must obtain that household's
affirmative consent after the household has reviewed the program
disclosures and before the provider can enroll the household in the
program. The Bureau also proposes that such consent must be obtained by
a provider performing a transfer transaction for a subscriber already
enrolled in the program. How should the new provider record and
document the transfer request? How should notice of a transfer be
communicated to the household? Should providers be required to provide
written notice to the household that it has been transferred and
enrolled in the program with the new provider? Should providers be
required to confirm the household's transfer request before and/or
after initiating the transfer? Should providers be required to certify
that all transfers completed by the provider are bona fide, requested
by the household, and made pursuant to program rules? As in the EBB
Program, the Bureau proposes to require providers to obtain a record of
this affirmative consent from the household and to make such
documentation available to the Commission and USAC upon request and in
a timely manner. The Bureau proposes that such documentation clearly
identify subscriber information, the date consent was given, and the
method of consent. The Bureau seeks comment on what form such consent
should take. In the EBB and Lifeline Programs, a subscriber's oral
consent is an acceptable form of consent. For the Affordable
Connectivity Program, should the Commission consider requiring
providers to obtain written consent from a subscriber prior to
transferring or enrolling the subscriber rather than allowing oral
consent? The Bureau also proposes to prohibit a participating provider
from linking consent to enroll in the Affordable Connectivity Program
with some other action or program, or from automatically enrolling a
subscriber based on information provided by the subscriber for some
other purpose. For example, the Bureau proposes that participating
providers be required to obtain consent for participation in the
Lifeline program, the EBB Program, and the Affordable Connectivity
Program separately. The Bureau also seeks comment on a proposal to
prohibit providers from requiring a consumer to accept a connected
device in order to enroll with the provider.
101. Moreover, the Bureau seeks comment on when providers can begin
to obtain a subscriber's consent to enroll in the Affordable
Connectivity Program. Similar to the approach in the EBB Program, the
Bureau proposes that only providers with an election notice for the
Affordable Connectivity Program fully processed by USAC can provide
disclosures and collect consents from subscribers regarding their
interest in enrolling in the Affordable Connectivity Program. The
Bureau seeks comment on
[[Page 74056]]
this proposal. What else should the Commission consider to protect
consumers from being unwittingly enrolled in the Affordable
Connectivity Program or transferring their ACP benefit? The Bureau
seeks comment on these proposals.
102. The EBB Program Order also requires providers to collect an
affirmative opt-in from EBB households before they can be charged ``an
amount higher than they would pay under the full EBB Program
reimbursement amount permitted'' by the program's rules. The Bureau
proposes that the Commission adopt a similar requirement for the
Affordable Connectivity Program. The Bureau seeks comment on what
notice and opt-in requirements are necessary to protect households from
unexpected charges and to prevent providers from providing unwanted and
undiscounted broadband service to low-income consumers. Given that the
Affordable Connectivity Program is expected to be a longer-term
program, the Bureau seeks comment on when, during a household's
participation in the program, providers should be required to obtain
the affirmative consent from the households to continue providing the
household broadband service after the end of the program and to charge
it a rate higher than what it would pay if it were receiving the full
discount permitted under rules for the Affordable Connectivity Program.
Does collecting such consent from households at the time of enrollment
fully inform households and adequately protect them from unexpected
charges? If providers are permitted to collect consent at the time of
enrollment to continue service after the program end date, how should
providers be required to give notice to consumers before raising the
price of the service? If the Commission were to allow this affirmative
opt-in to be collected at the time of enrollment, the Bureau proposes
that providers be prohibited from imposing, as a condition of
enrollment, an affirmative opt-in to continue receiving service from
the provider after the end of the program, or de-enrollment. In other
words, the Bureau proposes that households should be permitted to
decline to provide this opt-in at the time of enrollment. The Bureau
seeks comment on these issues.
103. The Bureau recognizes that providers will need time to prepare
the necessary disclosures and ensure they have mechanisms in place for
obtaining and capturing a consumer's affirmative consent before
enrolling the household in the program. The Bureau seeks comment on the
time that providers need to make changes to their disclosure and
consent mechanisms for purposes of the Affordable Connectivity Program.
What would be the earliest date that providers could make these changes
and be ready to enroll new subscribers in the Affordable Connectivity
Program? Is there a concern that if providers may be unable to develop
required disclosures and consent mechanisms in time for the launch of
the Affordable Connectivity Program, providers may delay enrolling
households until those systems are in place to ensure that enrollment
of consumers is compliant with program rules?
104. The Infrastructure Act also requires participating providers
to notify all consumers who either subscribe to or renew a subscription
to an internet service offering about the Affordable Connectivity
Program and how to enroll. The Bureau seeks comment on this
requirement. What does it mean to ``renew'' a subscription for the
purposes of this requirement? What are effective methods or best
practices providers should employ to ensure that such notifications
occur? Should the Commission, for example, require providers to certify
when they submit claims for reimbursement that they have provided such
notifications to the households? What, if anything, should the
Commission require of participating providers to ensure their
subscriber base is informed about the Affordable Connectivity Program?
Should the notification about the existence of the Affordable
Connectivity Program be provided in the consumer's preferred language?
What policies or practices should the Commission enact to monitor
compliance with this statutory obligation? The Bureau seeks comment on
whether providers will have adequate time to train their customer
service representatives and prepare their systems in order to provide
the required information to consumers on the December 31, 2021
effective date of the Affordable Connectivity Program.
105. Pursuant to the Infrastructure Act, the Commission must
collaborate with relevant Federal agencies to ensure a household that
participates in any program that qualifies it for the Affordable
Connectivity Program is provided with information about the Affordable
Connectivity Program, including enrollment information. The Bureau
seeks comment on how the Commission could collaborate with such
agencies. The Bureau also seeks comment on how state and federal
agencies that operate qualifying programs can best support eligible
households. Is there a role for these agencies in educating qualifying
consumers about the Affordable Connectivity Program? The Bureau also
seeks comment on what information about the Affordable Connectivity
Program the Commission should distribute to households participating in
a qualifying program.
106. The Infrastructure Act also requires the Commission to
``ensure relevant Federal agencies update their Systems of Records
Notices'' to ensure that a household participating in a qualifying
program is provided information about the Affordable Connectivity
Program. The Bureau seeks comment on how, and whether the Commission
has the authority, to compel other agencies to update their System of
Records Notices to the extent required to ensure that a household
participating in an ACP-qualifying program receives information about
the program. The Bureau seeks comment on the steps the Commission could
take to ensure that other agencies update their System of Record
Notices to allow the use of personally identifiable information in
order to share information about the Affordable Connectivity Program.
107. The Infrastructure Act also provides that the Commission may
conduct outreach efforts to encourage households to enroll in the
Affordable Connectivity Program. The Act permits the Commission to
facilitate consumer research, conduct focus groups, engage in paid
media campaigns, provide grants to outreach partners, and provide an
orderly transition for participating providers and consumers from the
EBB Program to the Affordable Connectivity Program. How should the
Commission utilize these statutorily provided tools to inform the
public about the program? What topics should the Commission include in
consumer research and/or focus groups? What methods of consumer
research are proving effective in the current pandemic environment?
108. While the Commission administers various types of federal
financial assistance programs, it does not have experience with the
unique statutory and regulatory requirements applicable to grant
programs. As such, the Bureau seeks comment on considerations
applicable to standing up a grant program in support of consumer
outreach. For example, should grants be used as part of the
Commission's first consumer outreach efforts under the modified program
or might grants instead be best utilized as part of the longer term
program management?
109. The Bureau also seeks comment on the ability to engage in paid
media campaigns. What types of paid media
[[Page 74057]]
will be most effective in reaching eligible households? Will social
media and other types of online advertising be effective? How should
the Commission allocate funding for paid media? Are there effective
media strategies developed or used by stakeholders to promote the EBB
Program that could inform the Commission's efforts?
110. The Infrastructure Act also permits the Commission to provide
grants to outreach partners. The Bureau first seeks comment on any
considerations specific to starting a grant program for consumer
outreach partners. Should the Commission itself provide such grants?
What types of outreach activities should the grants support? The Bureau
seeks comment on the scope and objectives of the outreach plans. What
outreach gaps were identified during the EBB Program that grant funding
could be effective in addressing? What criteria should the Commission
use to review and accept grant proposals? What reporting requirements
should the Commission establish for grant recipients? Should the
Commission impose restrictions on who may participate as an outreach
partner? Should the Commission institute a cap on the individual grant
amount and if so how much should that funding cap be? What expenses
should be allowed under the grant program? Should the Commission allow
grant funding to cover personnel costs, such as salaries, and other
financial benefits? Should the Commission limit the activities and
administrative expenses that grant funds can be used to cover? How much
of the total funding amount should the Commission set aside for grants
to outreach partners? What safeguards should the Commission consider to
prevent fraud and waste in a potential ACP grant program? Grant
application processes and required reporting can be burdensome and may
discourage smaller, locally focused organizations from applying. How
can the Commission balance the need for grant oversight with the desire
to make the grant program within reach for non-profits that are best
positioned to serve their local communities?
111. In addition to the examples listed in the Infrastructure Act,
are there other tools the Commission should consider utilizing to
increase the effectiveness of program outreach efforts? Effective
provider outreach and implementation of the Affordable Connectivity
Program will also encourage program enrollment. Should the Commission
share consumer feedback on the EBB Program and the results of ACP
consumer research with providers to inform their outreach and
implementation efforts? Are there legal or policy considerations that
might impact sharing such information with providers? How can the
Commission best share this consumer feedback and research results? Are
there lessons learned or effective strategies developed or used by
stakeholders, partners or providers to promote the EBB Program that
should inform the Commission's ACP outreach? What are best practices
the Commission should employ in its outreach efforts? The
Infrastructure Act also provides an amount of funding appropriated to
the Commission for the Affordable Connectivity Program. The Bureau
seeks comment on how the Commission should allocate funding to these
outreach projects. In the absence of funds appropriated expressly for
this outreach, should the Commission allocate some of the
administrative funds permitted by the statute to this outreach? How
much of the funding should the Commission set aside for outreach?
112. The Infrastructure Act requires participating providers, in
collaboration with state agencies, public interest groups, and non-
profit organizations, to carry out public awareness campaigns in their
areas of service that highlight the value and benefits of broadband
internet access service, and the existence of the Affordable
Connectivity Program. The Bureau seeks comment on the best methods to
publicize the availability of broadband services and connected devices
supported by the Affordable Connectivity Program. What are the most
effective means of publicizing the benefit to the communities most in
need? The Bureau also seeks comment on whether the Commission should
require providers to market the Affordable Connectivity Program in the
languages spoken in the areas they serve. The Bureau proposes that
providers be required to include in promotional materials how consumers
can enroll in the program, including how consumers can best contact the
provider in order to enroll in the Affordable Connectivity Program. The
Bureau seeks comment on these proposals. The Bureau also seeks comment
on the most effective ways providers can collaborate with state
agencies, non-profit organizations, and public interest groups to
promote the Affordable Connectivity Program.
113. The Bureau next seeks comment on an advertising requirement.
The Lifeline program requires providers to ``publicize the availability
of Lifeline service in a manner reasonably designed to reach those
likely to qualify for the service.'' Specifically, providers must
``[i]ndicate on all materials describing the service, using easily
understood language, that it is a Lifeline service, that Lifeline is a
government assistance program, the service is non-transferable, only
eligible consumers may enroll in the program, and the program is
limited to one discount per household.'' The Bureau proposes that the
Commission adopt a similar advertising requirement for the Affordable
Connectivity Program. The Bureau seeks comment on requiring
participating providers to indicate on all materials describing the
Affordable Connectivity Program the eligibility requirements for
consumer participation; that the Affordable Connectivity Program is
non-transferrable and limited to one discount per household; a list of
qualifying connected devices, if any, with device specifications; the
provider's customer service telephone number, which must be prominently
displayed on all promotional materials and on the provider's website;
and that the Affordable Connectivity Program is a federal government
benefit program operated by the Federal Communications Commission and,
upon its conclusion, or when a household is no longer eligible,
customers will be subject to the provider's regular rates, terms, and
conditions. The Bureau seeks comment on its proposal to require
providers to clearly display on their website the monetary charges to
the customer, and the available upload/download speeds and data caps
for its internet service offerings. What other information should
providers be required to include in their ACP-related marketing
materials? The Bureau also seeks comment on whether there are any
marketing practices in the EBB Program that were misleading to
customers.
114. The Infrastructure Act provides that the Commission may issue
guidance, forms, instructions, publications, or technical assistance as
necessary or appropriate to carry out the Affordable Connectivity
Program. This authorization includes actions intended to ensure that
``programs, projects, or activities'' are completed in a timely and
effective manner. The Bureau seeks comment on the meaning of this
provision. The Bureau proposes that this provision suggests that the
Commission should continue to work with USAC and others to ensure that
the administrator, providers, and consumers have the tools necessary to
meaningfully implement and participate in this program. The Bureau
seeks comment on what guidance from the Commission would be helpful for
providers. What resources would be helpful to consumers looking to
participate in the
[[Page 74058]]
program? Are there aspects of the current EBB Program enrollment
process that need additional explanation or more detailed instructions?
Similarly, what resources would help providers looking to participate
in the program? For the EBB Program, USAC offered provider training and
office hours, added training materials to the provider-focused website,
and sent bulletins to providers on system changes and new enrollment
features. Nevertheless, would additional explanation or more detailed
instructions on program process or systems help providers to better
serve their program eligible customers? How else can the Commission
ensure that this program is implemented effectively?
115. In the EBB Program Order, the Commission instructed USAC to
develop a tracker that reported on disbursements and program enrollment
to allow providers and the public to monitor the balance of the
Emergency Broadband Connectivity Fund and prepare for the end of the
program. The tracker is available to the public on USAC's website and
includes data on EBB Program enrollment nationwide, by state, and by
three-digit ZIP code areas that is updated weekly, and the total claims
made by providers each month. To provide more information about where
subscribers are enrolling in the EBB Program, the Commission released
more granular enrollment data that included enrollee demographic
information, such as age breakdown, eligibility category, type of
broadband service, and enrollment numbers by five-digit ZIP code areas,
all of which are updated monthly. The Bureau seeks comment on how
stakeholders used the data available on the EBB Enrollments and Claims
Tracker and whether enrollment and claims data regarding the Affordable
Connectivity Program would be similarly useful. Should the Commission
consider any modifications to the type or format of the public data
reports, as well as the frequency of updates, for the Affordable
Connectivity Program? In suggesting data to report publicly, commenters
should consider the limitations on the Commission's ability to make
available personal identifiable information on the households enrolled
in the program.
116. The Bureau also seeks comment on the performance measures the
Commission should use in determining the success of the Affordable
Connectivity Program. How should success in the Affordable Connectivity
Program be defined? The Commission, for example, set three program
goals for the Lifeline program: (1) Ensuring the availability of voice
and broadband service for low-income Americans; (2) ensuring the
affordability of broadband service for low-income Americans; and (3)
minimizing the contribution burden on consumers and businesses. In the
2016 Lifeline Order, 81 FR 33025, May 23, 2016, the Commission stated
that it will measure its progress toward achieving the affordability
prong of the goal by ``measuring the extent to which voice and
broadband service expenditures exceed two percent of low income
consumers' disposable household income as compared to the next highest
group.'' The Bureau seeks comment on the goals the Commission should
adopt for the Affordable Connectivity Program. How should the
Commission consider the concepts of broadband affordability, adoption,
and availability for low-income households? The Bureau also seeks
comment on the extent to which the Commission should measure the cost
effectiveness of administering the Affordable Connectivity Program.
117. Should the Commission track how the Affordable Connectivity
Program is delivering value to low-income consumers? If so, how can
this be measured? Should the Commission consider evaluating take-up
rates in communities with low connectivity? Should service type or
quality be considered in an analysis? Further, should the Commission
seek to understand whether the Affordable Connectivity Program is
expanding the market for broadband by enrolling subscribers with no
existing broadband service as opposed to those that apply the subsidy
to an existing plan? If so, what information should the Commission
require that providers submit to understand this distinction? What
additional measures of performance should the Commission consider, and
what information might be requested from providers to measure
performance? Should the Commission use participation rates to measure
program performance? To calculate those participation rates, how should
the Commission estimate the program eligible population, especially
given the limitations in data collection due to the ongoing pandemic?
Should data be collected on enrollees' current internet access when
applying? If so, should this data be collected from providers or
enrollees? What additional data are needed to accurately estimate ACP
eligibility? The Bureau seeks comment on the availability of such data
and recommended approaches for collection, such as requiring
participating providers to submit household eligibility information.
Should the Commission consider prioritizing reaching certain
demographics of low-income consumers and develop targeted outreach?
Should the Commission seek to collect additional demographic
information about ACP subscribers and, if so, how can the burdens to
consumers and providers be minimized? How might this information be
used in measuring the success of the Affordable Connectivity Program?
The Bureau seeks comment on whether the Commission should identify
goals for this program and how the Commission can measure its success
in meeting those goals. Should the success of the Affordable
Connectivity Program be measured against Lifeline or the EBB Program?
Given that Lifeline-eligible households will be eligible for the
Affordable Connectivity Program, how should the Commission judge the
concurrent performances of the two programs? Are there any additional
data that Lifeline providers participating in the Affordable
Connectivity Program can provide to the Commission that can be used to
judge any substitution or complementarity between Lifeline and the
Affordable Connectivity Program?
118. Given that the Affordable Connectivity Program is anticipated
to be a longer-term program than the EBB Program, what data should the
Commission ask providers to submit to judge the efficacy of the
Affordable Connectivity Program? The subsidy provided by the Affordable
Connectivity Program is larger than that provided by the Lifeline
program. As such, should the Commission ask ACP providers to submit
summary statistics on subscribers' usage of plan features (e.g., mobile
data usage) to gauge whether the Affordable Connectivity Program is
providing value to households beyond what the Lifeline program offers?
The Bureau also seeks comment on what data providers should submit
regarding the service type a household is receiving. Currently,
providers in the EBB Program indicate the type of service a household
receives through the EBB Program. Should the Commission also ask ACP
providers to indicate the service plan characteristics--such as upload
and download speeds, data allowances, and co-payment--associated with a
subscriber's service plan? If this information were required, what is
an appropriate frequency (e.g., quarterly, semi-annually) for providers
to submit such data on a recurring basis? Is there a method of
submission that would
[[Page 74059]]
minimize burden on providers (e.g., via NLAD at the time of
enrollment)?
119. As explained in this document, the Infrastructure Act provides
for a 60-day transition period for ``households that qualified'' for
the EBB Program prior to the December 31, 2021 effective date, that
would otherwise see a reduction in their benefit as a result of the
changes made through the delayed amendments concerning the eligibility
criteria and discount level for the Affordable Connectivity Program.
During the transition period, the Bureau proposes that households
enrolled in the EBB Program as of December 31, 2021 would not be
required to submit a new application to enroll in the Affordable
Connectivity Program. However, before the end of the 60-day transition
period, EBB-enrolled households that qualified for the EBB Program
through eligibility criteria that are not applicable to the Affordable
Connectivity Program will be required to demonstrate their eligibility
to receive an ACP benefit after the transition period ends. The Bureau
expects this requirement will affect only a small number of households
currently enrolled in the EBB Program. The Bureau will provide guidance
on the processes that this subset of EBB-enrolled households will need
to complete in order to demonstrate eligibility to receive the ACP
benefit after the transition period.
120. The Bureau also proposes requiring all households seeking to
participate in the Affordable Connectivity Program, including EBB-
enrolled households that are eligible for the Affordable Connectivity
Program, to opt-in or affirmatively request enrollment in the
Affordable Connectivity Program. Moreover, the Bureau proposes to
require EBB-enrolled households transitioning to the Affordable
Connectivity Program that share an address with another ACP household
to verify that they are only obtaining one ACP benefit per household,
by either completing the one-per-household worksheet, or a similar
process under a provider's approved alternative verification process.
However, given that these EBB-enrolled households would have completed
a worksheet for the EBB Program already, the Bureau proposes that such
households may complete the worksheet for the Affordable Connectivity
Program after the 60-day transition period if necessary. The Bureau
seeks comment on this proposal and the timing for the confirmation of
the household's compliance with the one-per-household requirement. The
Bureau believes that these approaches for EBB Program-enrolled
households transitioning to the Affordable Connectivity Program would
best promote an orderly transition and minimize administrative burdens
on participating households. The Bureau seeks comment on these proposed
approaches.
121. The Bureau next seeks comment on establishing a deadline by
when EBB-enrolled households that are eligible for and intend to
participate in the Affordable Connectivity Program must opt in or
affirmatively request enrollment in the Affordable Connectivity Program
after the end of the 60-day transition period. Would it be feasible to
require EBB-enrolled households to opt in or request enrollment by the
end of the transition period? Are there alternatives to requiring ACP
opt-in that the Commission should consider for EBB-enrolled households
that remain eligible for the Affordable Connectivity Program and
previously consented to continue receiving service from their provider
at the end of the EBB Program? Given that the Affordable Connectivity
Program is a new program with a different benefit amount, the Bureau is
concerned by the idea of allowing providers to rely on prior consent
for the EBB Program for enrollment in the Affordable Connectivity
Program. The Bureau also seeks comment on how to treat an EBB-enrolled
household that remains eligible for the Affordable Connectivity Program
but does not provide opt-in or affirmatively request enrollment to
participate in the Affordable Connectivity Program by any deadline the
Commission may adopt.
122. The Bureau seeks comment on service provider notice
requirements for EBB-enrolled households that transition to the
Affordable Connectivity Program and would experience a change in their
benefit level at the end of the 60-day transition period. Should the
Commission require that participating providers issue notices to
consumers with the same content as was contemplated for the 15-day and
30-day end of EBB Program notices in the EBB Program rules, with
modifications as necessary to comport with the Affordable Connectivity
Program rules? The Bureau seeks to minimize the potential for consumer
confusion, and seeks comment on when the rate change notices should be
issued to these consumers. Would 30-days' notice be sufficient time to
allow consumers to prepare for the reduced benefit amount under the
Affordable Connectivity Program? Should the Commission adopt a uniform
deadline for these consumer notices, such as 30 days before the end of
the transition period, or should the timing of the notices coincide
with consumer billing cycles? Would a single notice be sufficient to
communicate any rate changes that occur as a result of the changed
benefit amount under the ACP? Should the Commission require that the
notices make clear that consumers can cancel their service before the
rate change takes effect? Would it be sufficient for service providers
to notify consumers of the expected rate change under the Affordable
Connectivity Program via a bill message? The Bureau seeks comment on
these ideas.
123. The Infrastructure Act also contains language addressing a
transition period for certain households. In particular, legislative
text in the Delayed Amendments provides that, after December 31, 2021,
an eligible household that was participating in the EBB Program on the
date of enactment and that also qualifies for the Affordable
Connectivity Program ``shall continue to have access to an affordable
service offering.'' The Bureau seeks comment on this language and its
relation to the 60-day transition period into the Affordable
Connectivity Program for all households enrolled in the EBB Program
starting on December 31, 2021. What is intended by the language
providing that such households ``shall continue to have access to an
affordable service offering''? What are the outer bounds on the period
of time when such households shall no longer continue to have access?
What is the purpose of the language limiting such households to those
that were participating the EBB Program on the date of enactment?
124. Database Connections for the Affordable Connectivity Program.
Access to program databases for automated eligibility verification is
essential to an optimal household application experience in the
National Verifier. While the existing computer matching agreements
(CMAs) allow USAC to continue utilizing the National Verifier's EBB
Program connections for purposes of the Affordable Connectivity
Program, accessing eligibility databases for WIC, a new eligibility
program under the Affordable Connectivity Program, will likely require
new or amended CMAs and interconnection security agreements with each
of USAC and the Commission's state partners. Both USAC and the states
will also need to undertake technical development to build those
connections. The Bureau invites comment on these challenges and
potential solutions to avoid delays in establishing eligibility
database connections for the Affordable Connectivity Program.
[[Page 74060]]
125. In addition, the Infrastructure Act contemplates data sharing
with the Department of Health and Human Services (HHS), USDA and the
Department of Education by requiring the Secretaries of those agencies
to execute a Memorandum of Understanding with USAC to share National
Verifier data and to begin sharing such data shortly after executing
the Memorandum. The Bureau seeks comment on data maintained by these
agencies that could be used by the National Verifier to speed
enrollments in the Affordable Connectivity Program and combat program
waste. In the case of USDA, the Bureau seeks comment on whether there
is a centralized eligibility database for WIC data, which is
administered at the state level. The National Verifier also has a
number of current CMAs with state agencies permitting access to USDA
SNAP participant data in those states. How should USAC and the USDA
incorporate these existing CMAs into the Memorandum of Understanding?
With respect to the Department of Education, Pell Grant recipients will
be eligible to enroll in the Affordable Connectivity Program but, for
the EBB Program, applications based on Pell Grant participation are
subject to manual review. An automated connection with the Department
of Education for Pell Grant data would improve the enrollment
experience of Pell Grant recipients. Are there any legal barriers or
other challenges that would prevent CMA access to Pell Grant data?
Finally, with respect to the Memorandum of Understanding with HHS, USAC
and the HHS agency Centers for Medicare & Medicaid Services have a
current CMA permitting data sharing to qualify Medicaid recipients
nationwide for Lifeline and the EBB Program. The Bureau seeks comment
on whether other agencies within HHS would have any data that would
benefit applicants for the Affordable Connectivity and Lifeline
programs.
126. The Bureau seeks comment on what considerations the Commission
should include regarding the end of the Affordable Connectivity Program
when the funding is fully expended. If establishing requirements for
the sunset of the Affordable Connectivity Program, how can the
Commission benefit from the rules already established for the wind-down
of the EBB Program? The Bureau seeks comment on whether the Commission
should delegate to the Bureau the responsibility for setting the
requirements for the wind-down of the Affordable Connectivity Program.
What notice requirements should the Commission consider for the wind-
down? How much notice should the Commission give to providers and
households regarding the end of the program? How much notice will
participating providers require in order to give adequate notice to
households? The Commission and USAC have developed a projection
forecasting the termination of the EBB Program. How best can the
Commission forecast the end of the Affordable Connectivity Program?
127. The Infrastructure Act leaves unchanged the requirement that
the Commission adopt audit requirements to ensure that participating
providers are in compliance with the program requirements and to
prevent waste, fraud, and abuse. Moreover, within one year of the date
of enactment of the Infrastructure Act, the Commission's Office of
Inspector General shall conduct an audit of the disbursements to a
representative sample of participating providers. As with the EBB
Program, the Bureau proposes that the Commission delegate authority to
the Office of Managing Director (OMD) to develop and implement an audit
process of participating providers, for which it may obtain the
assistance of third parties, including but not limited to USAC. Such
audits would be in addition to any audits conducted by the Commission's
Office of Inspector General. The Bureau seeks comment on the audit
requirements and procedures to be used to test provider compliance with
Affordable Connectivity Program rules, including whether ``spot
checks'' of provider practices should be incorporated into those
procedures. The Bureau also proposes adopting for the Affordable
Connectivity Program the documentation retention requirements used in
the EBB Program.
128. In the EBB Program, the Commission directed USAC to conduct
program integrity reviews of oversubscribed addresses, of a sample of
households qualifying based on a member of their household's enrollment
in a CEP school, and a sample of households enrolled through an
alternative verification process, in addition to other areas as
determined by the Bureau and USAC to deter waste, fraud, and abuse in
the Program. The Bureau proposes that USAC also develop a plan and
conduct program integrity reviews, subject to OMD and Bureau approval,
to determine provider and consumer compliance with ACP program rules.
The Bureau seeks comment on the areas that might be most at risk for
non-compliance that should be the subject of a program integrity
review.
129. The Infrastructure Act leaves unchanged the declaration that a
violation of section 904 or any regulation promulgated under that
section ``shall be treated as violation of the Communications Act of
1934 or a regulation promulgated under such Act.'' The Commission is
compelled to enforce the section of the Infrastructure Act establishing
the Affordable Connectivity Program and associated regulations ``in the
same manner, by the same means, and with the same jurisdiction, powers,
and duties as though all applicable terms and provisions of the
Communications Act of 1934 were incorporated or made a part of this
section.'' The Commission in the EBB Program Order stated that it would
use its existing statutorily permitted enforcement powers to conduct
investigations and impose administrative forfeitures, and would apply
the Commission's suspension and debarment rules applicable to USF
participants to EBB Program providers. Moreover, as discussed in this
document, the Infrastructure Act expressly granted the Commission the
authority to impose forfeiture penalties to enforce compliance, and the
Bureau proposes that the Commission use its existing, statutorily
permitted enforcement powers to initiate investigations of program rule
violations for the Affordable Connectivity Program. The Bureau repeats
here its request for comment on this proposal. Additionally, the
Commission currently has pending a suspension and debarment proceeding
proposing rules that would be applicable to conduct under the USF
programs, Telecommunications Relay Services and the National Deaf-Blind
Equipment Distribution Program. The Bureau seeks comment on whether an
extension of the suspension and debarment rules proposed in that
proceeding (when finalized) to the Affordable Connectivity Program, as
well as any ACP grant program for outreach partners, would be desirable
to prevent waste, fraud, and abuse, and if so, what modifications (if
any) of such proposed suspension and debarment rules should be
considered for the grant program.
130. The Infrastructure Act leaves unchanged the safe harbor
provision in the Consolidated Appropriated Act stating that the
Commission may not enforce a violation of the Act using sections 501,
502, or 503 of the Communications Act, or any rules of the Commission
promulgated under such sections, if a participating provider
demonstrates that it relied in good faith
[[Page 74061]]
on information provided to such provider to make any verification
required by section 904(b)(2). Section 904(b)(2) imposes a duty on
providers to verify whether a household is eligible to receive
discounted service and a connected device through the program, and the
Commission in the EBB Program Order established that the safe harbor
will apply to providers who use the National Verifier for eligibility
determinations or any alternative verification process approved by the
Commission. The Commission provided that the safe harbor applies to
providers who act in good faith with respect to the eligibility
verification processes and that the Commission has extensive experience
evaluating the good faith actions of regulated entities. The Bureau
proposes that the Commission adopt this application of the safe harbor
adopted in the EBB Program Order to providers participating in the
Affordable Connectivity Program and that providers that reasonably rely
on documentation regarding eligibility determinations provided by
eligible households or an eligibility determination from the National
Verifier will be able to avail themselves of this statutory safe harbor
with respect to their compliance with the Affordable Connectivity
Program rules. The Bureau seeks comment on this proposal.
131. Section 904 of the Consolidated Appropriations Act, 2021, as
amended by the Infrastructure Act, authorizes the Commission to use the
services USAC to administer the Affordable Connectivity Fund, including
developing and processing reimbursements and distributing funds to
participating providers. Based on USAC's extensive experience
administering both the Lifeline and EBB Programs, the Bureau proposes
using USAC to administer the Affordable Connectivity Program. Given the
challenging timeframe provided in the Act for the implementation of the
Affordable Connectivity Program, the Bureau proposes that relying on
USAC as the administrator would best facilitate the orderly
implementation and administration of the Affordable Connectivity
Program and would also minimize provider and consumer confusion. The
Bureau seeks comment on the use of the USAC administered systems,
including, but not limited to, the Lifeline National Verifier, National
Lifeline Accountability Database, Representative Accountability
Database, and the Lifeline Claims System for administering the
Affordable Connectivity Program. The Bureau also seeks comment on using
established USAC functions and processes for administering the
Affordable Connectivity Program, including, but not limited to, call
centers, provider and communications outreach and training, program
integrity reviews, audits, assisting the Commission in conducting its
review, and data services. The Bureau seeks comment on this proposal.
In addition, how should the Commission measure USAC's performance in
administering the Affordable Connectivity Program? What aspects of
USAC's administration of the EBB Program were most effective from the
perspective of the providers and applicants, and what aspects may need
improvement going forward?
132. Given that the Affordable Connectivity Program is expected to
be a longer-term program than the EBB Program, the Bureau proposes that
the Commission require providers to submit to USAC annual officer
certifications, under penalty of perjury, relating to the Affordable
Connectivity Program. The Bureau further proposes that each officer
must certify that the participating provider has policies and
procedures in place to ensure compliance with ACP rules. The Bureau
seeks comment on the contents of this certification and feedback on
whether such certifications would help guard against waste, fraud, and
abuse in the Affordable Connectivity Program. This practice is
currently used across the Commission's Universal Service Fund programs
through the use of FCC Form 481 that requires providers participating
in High Cost and Lifeline to annually certify their compliance with
those programs' rules. Pursuant to Sec. 54.416 of the Commission's
rules, ETCs must also certify to their compliance with Lifeline program
rules and that ETCs have policies and procedures in place to ensure
that their Lifeline subscribers are eligible for Lifeline service. The
Bureau seeks comment on these ideas.
133. Administrative Cap. The Infrastructure Act continues to make
available to the Commission no more than 2% of the Affordable
Connectivity Fund (formerly called the Emergency Broadband Connectivity
Fund) for the administration of the Affordable Connectivity Program.
The Infrastructure Act further appropriates an additional $14.2 billion
(in addition to the amounts previously appropriated under the
Consolidated Appropriations Act, 2021) into the Affordable Connectivity
Fund. Thus, the overall cap on administrative costs is $348 million
(some of which has already been expended for the EBB Program). In the
EBB Program Order, the Commission directed OMD and USAC to re-evaluate
the program's budget to determine if any funds budgeted for
administrative expenses should instead be used to fund reimbursements.
Should the Commission similarly require a re-examination of the
administrative funds and budget in the Affordable Connectivity Program
to determine if any funds can be used for reimbursements? If so, at
what intervals should the re-evaluation take place? In the EBB Program
Order, the Commission also required that USAC regularly report to OMD
USAC's program budget for the administration of the EBB Program. The
Bureau proposes that the Commission require similar regular reporting
from USAC on its projected budget for the administration of the
Affordable Connectivity Program. The Bureau seeks comment on this
proposal.
134. Red Light and Do Not Pay. To implement the requirements of the
Debt Collection Improvement Act of 1996, the Commission has established
what is commonly referred to as the red light rule. Under the red light
rule, the Commission will not take action on applications or other
requests by an entity that is found to owe debts to the Commission
until that debt is fully paid or resolved. In the EBB Program, the
Commission waived the red light rule given the limited duration and
emergency nature of that Program. The red light rule is not waived for
the Lifeline program or other longstanding programs such as the
Telecommunications Relay Service. In contrast to the EBB Program, the
Bureau proposes to apply the red light rule to the Affordable
Connectivity Program and thus ACP providers would be subject to the red
light rule. The Bureau seeks comment on this approach.
135. In the EBB Program Order, the Commission explained that
pursuant to the requirements of the Payment Integrity Information Act
of 2019 (PIIA), the Commission is required to ensure that a thorough
review of available databases with relevant information on eligibility
occurs to determine program or award eligibility and to prevent
improper payments before the release of any federal funds. To that end,
the Commission explained that to meet this requirement, the Commission
will make use of the Do Not Pay system administered by the Department
of Treasury's Bureau of the Fiscal Service and if a check of the system
reveals that a provider cannot be paid, the Commission will withhold
issuing commitments and payments to that provider. The Commission
further explained that USAC may work with the EBB Program provider to
give it an opportunity to resolve the listing in the
[[Page 74062]]
Do Not Pay system, however the provider will be responsible for working
with the relevant agency to correct its information before payment can
be made by the Commission. The Commission also noted that providers not
registered in the System for Award Management (SAM) may elect to
participate in the EBB Program, enroll eligible households and receive
program commitments, but active SAM registration is required in order
to receive payment. The Bureau seeks comment on the payment
administration process used for the EBB Program and on providers'
experiences with the payment process as may be relevant for the
Affordable Connectivity Program.
136. In enacting the Affordable Connectivity Program, the
Infrastructure Act did not make any substantive changes to section
904(f), which permits the Commission to apply rules contained in part
54 of the Commission's rules to the EBB Program. In addition to the
specific instances identified in this document, the Bureau seeks
comment on applying the regulations contained in subpart E of part 54
to the Affordable Connectivity Program, to the extent that those rules
do not conflict with the Affordable Connectivity Program parameters
established by the Infrastructure Act. For example, the Bureau seeks
comment on what definitions in section 54.400 should also be applied
the Affordable Connectivity Program. Should the Commission include
subscriber eligibility determination and certification rules as found
in section 54.410? The Bureau also seeks comment on whether regulations
in subpart H of the Commission's rules, which pertain to USAC's
functions as administrator of the USF, should be applied to the
Affordable Connectivity Program. The Bureau proposes to apply sections
54.702(c) of the Commission's rules prohibiting USAC from making
policy, interpreting unclear provisions of the statute or rules, or
interpreting the intent of Congress. What other provisions of subpart
H, would, if applied, facilitate the effective administration of the
Affordable Connectivity Program? Alternatively, the Bureau seeks
comment on whether the Commission should consider adopting distinct
rules for the Affordable Connectivity Program rather than relying on
definitions and processes from Lifeline-specific rules. What are the
benefits of establishing ACP-specific rules rather than cross-
referencing and relying on Lifeline rules? Finally, the Bureau urges
commenters to provide feedback on the EBB Program and how the
Commission can best use the experiences from the EBB Program to inform
its rulemaking with respect to the Affordable Connectivity Program. The
Bureau invites providers, consumer groups, EBB subscribers, other
governmental agencies, non-profit organizations, and community
institutions to share with us in this proceeding their experiences in
navigating the EBB Program and what the Commission should consider when
establishing rules for the Affordable Connectivity Program.
137. The Infrastructure Act does not modify section 904(h), which
exempts the Commission from certain rulemaking requirements under the
APA and the Paperwork Reduction Act (PRA). Because section 904(h)
applies these exemptions to regulations promulgated to implement the
EBB Program (i.e., under section 904(c) of the Consolidated
Appropriations Act), the Bureau understands these exemptions extend to
the implementation of amendments that modify the EBB Program, with the
possible exception of those consumer protection provisions for which
the Infrastructure Act specifically requires the Commission to
promulgate rules in accordance with the APA. Furthermore, the PRA in
its ordinary operation includes statutory comment periods that
encompass several months, which cannot be completed consistent with the
deadlines in the Infrastructure Act. Exempting this rulemaking
proceeding from the APA's rulemaking requirements is also essential for
the timely promulgation of final rules in advance of the implementation
and outreach efforts that will be required for the eventual launch of
this new program. The Bureau seeks comment on these interpretations.
138. Regulatory Flexibility Act. The Regulatory Flexibility Act of
1980, as amended, requires that an agency prepare an initial regulatory
flexibility analysis ``[w]henever an agency is required by [5 U.S.C.
553], or any other law, to publish general notice of proposed
rulemaking for any proposed rule.'' Pursuant to the Consolidated
Appropriations Act, as extended under the Infrastructure Act, section
553 generally does not apply to the rulemaking proceeding implementing
the Affordable Connectivity Program. Furthermore, to the extent notice
and comment under the APA is otherwise required for those consumer
protection regulations that are required under section 904(b)(11), the
Commission will either find good cause to dispense with such notice and
comment or will subsequently issue a Notice of Proposed Rulemaking that
will include an Initial Regulatory Flexibility Analysis. Accordingly,
no Initial Regulatory Flexibility Analysis is required for in this
Public Notice.
A. Paperwork Reduction Act
139. Pursuant to section 904(h)(2) of the Consolidated
Appropriations Act, as extended under the Infrastructure Act, the
collection of information sponsored or conducted under the rules
proposed in this Public Notice is deemed not to constitute a collection
of information for the purposes of the Paperwork Reduction Act, 44
U.S.C. 3501-3521.
140. The Commission, as part of its continuing effort to advance
digital equity for all, including people of color, persons with
disabilities, persons who live in rural or Tribal areas, and others who
are or have been historically underserved, marginalized, or adversely
affected by persistent poverty or inequality, invites comment on any
equity-related considerations and benefits (if any) that may be
associated with the proposals and issues discussed herein.
Specifically, the Bureau seeks comment on how its proposals may promote
or inhibit advances in diversity, equity, inclusion, and accessibility,
as well the scope of the Commission's relevant legal authority.
Federal Communications Commission.
Cheryl Callahan,
Assistant Chief, Telecommunications Access Policy Division, Wireline
Competition Bureau.
[FR Doc. 2021-27775 Filed 12-28-21; 8:45 am]
BILLING CODE 6712-01-P
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