Proposed Rule2022-13438
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
June 23, 2022
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission or FCC) seeks comments on the annual collection of data relating to price and subscription rates of internet service offerings received by households enrolled in the Affordable Connectivity Program, mechanism for collecting such data, and format for the data's publication, as required by Section 60502(c) of the Infrastructure Investment and Jobs Act.
Full Text
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<title>Federal Register, Volume 87 Issue 120 (Thursday, June 23, 2022)</title>
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[Federal Register Volume 87, Number 120 (Thursday, June 23, 2022)]
[Proposed Rules]
[Pages 37459-37470]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13438]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[WC Docket No. 21-450; FCC 22-44; FR ID 92237]
Affordable Connectivity Program
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission or FCC) seeks comments on the annual collection of data
relating to price and subscription rates of internet service offerings
received by households enrolled in the Affordable Connectivity Program,
mechanism for collecting such data, and format for the data's
publication, as required by Section 60502(c) of the Infrastructure
Investment and Jobs Act.
DATES: Comments are due on or before July 25, 2022 and reply comments
are due on or before August 8, 2022. If you anticipate that you will be
submitting comments but find it difficult to do so within the period of
time allowed by this document, you should advise the listed contact as
soon as possible.
ADDRESSES: You may submit comments, identified by WC Docket No. 21-450,
by any of the following methods:
<bullet> Electronic Filers: Comments may be filed electronically
using the internet by accessing the Electronic Comment Filing System
(ECFS): <a href="https://apps.fcc.gov/ecfs/">https://apps.fcc.gov/ecfs/</a>.
<bullet> Paper Filers: Parties who choose to file by paper must
file an original and one copy of each filing.
Filings can be sent by commercial overnight courier, or by first-
class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
<bullet> 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.
<bullet> U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 45 L Street NE, Washington, DC 20554.
<bullet> Effective March 19, 2020, and until further notice, the
Commission no longer accepts any hand or messenger delivered filings.
This is a temporary measure taken to help protect the health and safety
of individuals, and to mitigate the transmission of COVID-19. See FCC
Announces Closure of FCC Headquarters Open Window and Change in Hand-
Delivery Policy, Public Notice, DA 20-304 (March 19, 2020) (<a href="https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy">https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy</a>).
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#066065653336324660656528616970"><span class="__cf_email__" data-cfemail="93f5f0f0a6a3a7d3f5f0f0bdf4fce5">[email protected]</span></a> or call the
Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202)
418-0432 (TTY).
FOR FURTHER INFORMATION CONTACT: Eric Wu, Wireline Competition Bureau,
202-418-7400 or by email at <a href="/cdn-cgi/l/email-protection#a1e4d3c8c28ff6d4e1c7c2c28fc6ced7"><span class="__cf_email__" data-cfemail="0f4a7d666c21587a4f696c6c21686079">[email protected]</span></a>. Requests for
accommodations should be made as soon as possible in order to allow the
agency to satisfy such requests whenever possible. Send an email to
<a href="/cdn-cgi/l/email-protection#dcbabfbfe9ece89cbabfbff2bbb3aa"><span class="__cf_email__" data-cfemail="3b5d58580e0b0f7b5d5858155c544d">[email protected]</span></a> or call the Consumer and Governmental Affairs Bureau at
(202) 418-0530.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Notice of Proposed Rulemaking (NPRM) in WC Docket No. 21-450; FCC 22-
44, adopted on June 7, 2022, and released on June 8, 2022. The full
text of this document is available for public inspection at the
following internet address: <a href="https://docs.fcc.gov/public/attachments/FCC-22-44A1.pdf">https://docs.fcc.gov/public/attachments/FCC-22-44A1.pdf</a>.
I. Introduction
1. On November 15, 2021, the President signed the Infrastructure
Investment and Jobs Act (Infrastructure Act or Act), which modified and
extended the Emergency Broadband Benefit Program (EBB Program) to a
longer-term broadband affordability program called the Affordable
Connectivity Program (ACP). The Infrastructure Act also mandates that
the Commission issue final ``broadband transparency rules'' regarding
the annual collection of information about the price and subscription
rates of internet service offerings received by households enrolled in
the Affordable Connectivity Program. Consistent with the directive to
adopt rules no later than one year after enactment of the Act, the
Commission herein seek comment on the data to be collected, mechanism
for collecting this data, and format for the data's publication.
II. Discussion
2. ACP Transparency Data to be Collect--Price and Subscription Rate
Information. The Act requires an ``annual collection by the Commission
of data relating to the price and subscription rates of each internet
service offering of a participating provider under the Affordable
Connectivity Program . . . to which an eligible household subscribes.''
The Commission first seeks comment on the collection of price
information. The Commission proposes that the price information include
the monthly charge for the internet service offering that a household
would be charged absent the application of the affordable connectivity
benefit. How should the Commission collect promotional pricing or
introductory rates? Should other price characteristics, such as whether
the internet service offering is pre-paid or post-paid, be collected?
Should taxes and fees be collected as part of price? If so, what price
information should be included, and how can the Commission distinguish
between the components of the price? For example, should the values of
promotional discounts such as for streaming service (e.g., Disney+,
Spotify, Netflix, etc.) or modem rental, military discounts, or
paperless billing discounts be collected? Should the collected price
information reflect any discounts provided to households receiving a
service offering under an extended service contract? Should whether a
plan is designated as a plan for a low-income household be collected?
Should the prices for associated equipment, such as modems or routers,
be collected? How should the
[[Page 37460]]
price of service bundles (for example, voice/broadband or voice/
broadband/cable) be collected? For those households who exceed their
monthly data cap, should the cost of additionally purchased data be
considered? Are there any other indicators of price that should be
collected?
3. The Commission next seeks comment on the collection of
subscription rates. The Commission interprets ``subscription rate'' as
the total program subscribership to a unique internet service offering
over time, and seek comment on this approach. In other words, the
Commission proposes to collect the number of ACP households that
subscribe to each unique internet service offering, where offerings are
differentiated by price and service characteristics. Should the
Commission collect the number of households of an internet service
offering as of a certain moment in time (e.g., as of a particular day),
or should the Commission collect data on the number of households
receiving the offering over a given period of time (e.g., over a
multiple month period)? What is the meaning of the statutory wording
``subscription rate''? Should the Commission require providers to
submit annually such subscription rate data disaggregated by month or
quarter? Will either of these approaches better enable the Commission
to calculate the ``take rate'' (i.e., the fraction of subscribers
selecting the plan from those who could select the plan) and identify
changes in the rate over time? Should the Commission collect any other
data related to the growth or churn rate, which would show the net
additions or drop-offs from plans over time? The Commission seeks
comment on other interpretations of ``subscription rate.''
4. Some providers offer plans nationwide. How should that be taken
into account when collecting subscription rate information? Should the
subscription rate be for a particular geographic location if plans are
offered nationally or across large geographic regions, such as
statewide? Are large geographic regions (e.g., state) most appropriate
or would it be beneficial to collect this information on a more
granular geographic level? If so, what geographic level (e.g., study
areas, designated market areas) would be most appropriate? What other
information should the Commission collect about the subscription rate?
Do providers collect and maintain household demographic information or
information on a subscriber's past internet access, and if so should
that information be collected here? The Commission proposes to have
providers enrolling households in the Affordable Connectivity Program
through an FCC-approved alternative verification process be required to
submit information about how the household qualified for the Affordable
Connectivity Program, and the Commission seek comment on this proposal.
5. Plan Characteristics. In the ACP Order, 87 FR 8346 (Feb. 14,
2022), FCC 22-2 (Jan. 21, 2022), the Commission determined that
collecting data on service plan characteristics, including upload and
download speeds, data allowances, and co-payments could help determine
the value the Affordable Connectivity Program provides to households.
Given the utility of such data, the Commission directed the Bureau and
the Office of Economics and Analytics (OEA), with assistance from the
program administrator, the Universal Service Administrative Company
(USAC), to determine the appropriate way to collect service plan
characteristics while minimizing the burden to service providers. The
Infrastructure Act also anticipates that the Commission may engage in
other data collection activities, specifically including a redundancy
avoidance provision stating that nothing ``shall be construed to
require the Commission . . . to duplicate an activity that the
Commission is undertaking as of the date of enactment'' of the Act if
``the Commission refers to the activity in the'' final broadband
transparency rules issued by the Commission, if ``the activity meets
the requirements of'' the broadband transparency rules, and if ``the
Commission discloses the activity to the public.'' The Commission seeks
comment on whether and how this provision affects the collection of
service plan characteristic data. Plan characteristics data arguably
falls within the scope of ``data relating to the price and subscription
rates'' of internet service offerings to which households subscribe.
The Commission thus seeks comment on using this ACP transparency annual
data collection to collect information on plan characteristics, as
required by the Commission in the ACP Order.
6. The Commission seeks comment on what ACP plan characteristics
the Commission should collect. The Commission first proposes to collect
upload and download speeds. For upload and download speeds, should the
Commission collect the advertised or maximum speeds? Are there other
speed measurements the Commission should consider collecting instead?
Should the Commission collect information about ACP service plan data
caps, including the amount of the data cap and the number of
subscribers who have reached their cap? What about information
concerning associated equipment, including whether or not a plan
includes or requires a modem or router rental? For bundled service
plans should the Commission collect information concerning the
characteristics of the bundle, including whether voice is included in
the bundle, voice characteristics (e.g., total minutes), whether video
is included, video characteristics (e.g., total channels, channels
included)? Are there other plan characteristics that the Commission
should collect as part of the ACP transparency data collection?
7. Broadband Consumer Labels. The Commission also seeks comment on
the interplay between the ACP transparency data collection and
broadband consumer labels. The Infrastructure Act provides that the
Commission ``shall rely on the price information displayed on the
broadband consumer label under subsection (a) for any collection of
data relating to the price and subscription rates of each covered
broadband internet access service under section 60502(c).'' This
language may mean that that the Commission must incorporate price
information from broadband consumer labels in the section 60502(c) ACP
transparency data collection but that this category of price
information data is not coterminous with the data related to price that
is referenced in section 60502(c). Are there alternative
interpretations? For example, should the Commission interpret the
``shall rely'' language as meaning that the Commission should only rely
on data contained in the broadband labels to meet the statutory
requirement that the Commission collect data relating to price? Does
the redundancy avoidance provision in section 60502(c) support this
interpretation? The Commission seeks comment on this language and
request that commenters also suggest ways in which the Commission can
use broadband label information as part of the ACP transparency data
collection. The Commission also seeks comment on whether the redundancy
avoidance language could be interpreted to mean that the Commission
could rely on price information contained in consumer broadband labels.
Does USAC collect any information about subscription rates to satisfy
the ACP's other statutory requirements, rather than conducting a new
data collection?
8. As proposed, the broadband labels may include information
concerning plan pricing, performance, and data caps and will be
required to be displayed at the point of sale. How
[[Page 37461]]
should the Commission structure the ACP transparency data collection to
take advantage of information contained in the broadband labels? The
Broadband Labels NPRM (87 FR 6827 (Feb. 7, 2022)) sought comment about
whether the Commission should directly collect the information
contained in the broadband labels with each plan having a unique
identifier, or whether the Commission should require all participating
internet service providers to make plan information publicly available
via an Application Programming Interface (API) or other machine-
readable format. If the Commission require labels in a machine-readable
format, how would the Commission be able to match the labels to ACP
subscribers? As a practical matter, is it possible for the information
included in the broadband labels to meet the statutory requirement in
section 60502(c) to collect price information for ``each internet
service offering of a participating provider . . . to which an eligible
household subscribes?'' If a provider is to submit a unique identifier
for each plan, what naming convention should be used to identify the
plan? Should there be a standardized naming convention used across
providers, and if so, what should that format be? Absent a data
collection of broadband labels or required availability of plan
information via an API, can price information be obtained from the
label on the provider's marketing materials? How could the Commission
link the price information from the provider's marketing materials to
the ``eligible household''? If available, would this price information
accurately reflect the prices applicable to ACP subscribers? The
Commission seeks comment on these approaches to leveraging information
for the broadband labels and alternative approaches the Commission
should consider in this proceeding. Should the Commission consider
public sources for plan information? If so, how should the Commission
link rate and plan characteristic information on a website label to an
ACP subscriber?
9. Performance Metrics. The Commission proposes to use information
in the ACP transparency data collection for the evaluation of the
performance of the Affordable Connectivity Program in achieving the
goals set in the ACP Order. Those goals are to (1) reduce the digital
divide for low-income consumers, (2) promote awareness and
participation in the Affordable Connectivity Program, and (3) ensure
efficient and effective administration of the Affordable Connectivity
Program. The Commission seeks comment on this proposal. What
information should the Commission collect in the ACP transparency data
collection to measure the performance of the Affordable Connectivity
Program? Should the Commission collect information about whether a
subscriber is a first-time subscriber to the provider? A first-time
subscriber for fixed or mobile broadband? Whether a household
subscribes to another broadband service? Should the Commission collect
data on a subscriber's plan characteristics prior to ACP service to
help identify the impact of the ACP benefit or information from
providers on how many subscribers changed their data usage or plan once
they received their ACP benefit? Is there information about subscribers
that is not currently collected that would be helpful to evaluate the
performance of the program? Should the Commission collect information
concerning how a customer became aware of the Affordable Connectivity
Program? What other information should the Commission to measure
effectiveness in increasing awareness and participation in the
Affordable Connectivity Program? What information should the Commission
collect to measure the administrative efficacy of the program or
otherwise help measure the performance of the Affordable Connectivity
Program?
10. Collection Structure--Data Collection Systems. To allow
providers to efficiently submit information for the ACP transparency
data collection, the Commission proposes using the National Lifeline
Accountability Database (NLAD) or other USAC systems to collect
subscriber-level data. The NLAD is a centralized database through which
all ACP providers must enter information about households to enroll
them in the Affordable Connectivity Program. The Commission seeks
comment on this approach. For example, providers currently submit to
NLAD information regarding a subscriber's residential address, other
contact information, whether the subscriber is receiving an ACP
connected device from the provider, service type (cable, DSL, fiber,
fixed wireless, mobile broadband, satellite), among other information
necessary to administer the program and to prohibit members of the same
household from receiving the affordable connectivity benefit at the
same time. Both USAC and providers have experience using NLAD to submit
and retrieve information about households' ACP service, and using this
system for the collection would prioritize ease-of-use for service
providers and minimize administrative burdens. Given the statutory
constraints and need to collect this information quickly and
efficiently after the final rules are adopted, using a system that is
already familiar and that already contains information about the
households enrolled in the Affordable Connectivity Program will benefit
providers, the Commission, and USAC. The Commission seeks comment on
these views and welcome comment on other data collection mechanisms.
The Commission believes it will be less burdensome for providers to
update their connections to NLAD and to continue to use a system they
are familiar with to submit data collection information rather than
requiring them to modify their processes and systems to transfer data
to a new and unfamiliar system. The Commission seeks comment on this
assumption. Additionally, receiving data from NLAD will allow the
Commission to determine the rate of subscriptions of different plans,
which otherwise could not be obtained in a static, aggregate
collection. Are there alternative USAC-managed data upload systems that
could be used for a subscriber-level collection? Would the creation of
a new USAC-managed system be most appropriate for this data collection?
11. If the Commission was to collect the data at an aggregated
level, and not at the subscriber level, what collection mechanism
should the Commission use? It may be difficult to modify NLAD to
collect data on an aggregated level within the time necessary to launch
the ACP data collection and, thus, USAC or the Commission may have to
develop a new system. The Commission seeks comment on this view. The
Commission also seeks comment on the ways that USAC could modify NLAD
or another existing system to collect aggregate plan data. Are there
ways that USAC could collect subscriber level information via NLAD and
aggregate that data? Should the Commission collect this aggregated data
instead of USAC? Developing a new system and standing up a collection
of this magnitude would require significant resources, so the
Commission seeks comment on the feasibility of the Commission hosting
this collection. Finally, the Commission seeks comment on how the level
of aggregation impacts the collection mechanism the Commission should
employ. Commenters are encouraged to explain whether their suggested
collection mechanism is particular to a specific level of aggregation,
or if it can
[[Page 37462]]
accommodate a wide swath of possible aggregation levels.
12. Data Filers. The Commission next seeks comment on which
providers will need to submit data to the ACP transparency data
collection. The Infrastructure Act requires collecting data ``relating
to the price and subscription rates of each internet service offering
of a participating provider under the Affordable Connectivity Program .
. . to which an eligible household subscribes.'' The Commission views
the Infrastructure Act as requiring every provider participating in the
Affordable Connectivity Program to provide such data, regardless of the
number of enrolled households. The Commission seeks comment on that
view and the benefits of that approach. The Commission did not read the
Infrastructure Act as permitting us to limit the number of providers
that must participate in this data collection. The Commission seeks
comment on this interpretation and encourage commenters suggesting
otherwise to explain how to limit participation without jeopardizing
the integrity of the collection and ensuring that sufficient
information is collected to provide the price and subscription rate
information required by Congress.
13. Data Updates. Using the existing NLAD system will allow us to
collect data at enrollment for all new participants but may not easily
allow for the collection of newly required information about existing
ACP households. The Commission therefore seeks comment on how providers
should be required to backfill data for the millions of existing
households that have already enrolled in the Affordable Connectivity
Program. When the rules for the ACP transparency data collection go
into effect, what should providers be required to do for these existing
households? The Commission seeks comment on the best ways to obtain
data from providers about the price and subscription rate of existing
ACP households and on an appropriate amount of time to submit
information into the NLAD system. Are there other alternative methods
for collecting newly required information? For all households, should
the Commission require providers to submit and/or update plan
information continuously throughout the Affordable Connectivity
Program? What are the benefits of requiring providers to continuously
update this information throughout the year rather than collecting it
during a filing window? Should providers be required to update plan
information when that plan information changes? If so, how soon after
the plan change should providers submit that new information? The
Commission also seeks comment on whether to require providers to
continue to maintain, update, or correct relevant information for the
ACP transparency data collection after a provider exits the Affordable
Connectivity Program.
14. Collection Approaches. The Commission proposes that information
about the price and subscription rate of internet service offerings to
which enrolled ACP households subscribe be collected at the subscriber
level. In a subscriber-level approach, data would be provided for each
household enrolled in the Affordable Connectivity Program for that
provider. The Infrastructure Act does not specify the level at which
data should be collected. Further, by prohibiting the Commission from
``risking the disclosure of personally identifiable information'' when
making data public, Congress necessarily contemplated that the
Commission might collect subscriber-specific information. Recognizing
the paramount importance of consumer privacy, the Commission seeks
comment on any statutory or regulatory restrictions on the collection
of subscriber-level data beyond what participating providers already
provide, including privacy statutes.
15. In a subscriber-level collection, the provider would submit
plan information to NLAD for each subscriber enrolled in the Affordable
Connectivity Program. Having plan information for each subscriber would
allow Commission staff to track the subscriber take-up rate of
different plans over time and study how subscriber plan choices and
preferences for plan characteristics vary by geographic area and
household demographics. Subscriber-level information would provide
insight into whether the Affordable Connectivity Program is meeting the
broadband needs of eligible households and how those needs change over
time, and would assist our understanding of whether plan choice is
influenced by available technologies and speeds in a geographic area.
For example, subscriber-level data would allow us to examine the
preference for fixed versus mobile plans across geography and
demography.
16. In addition to helping the Commission understand what choices
subscribers have available to them and their preferences, subscriber-
level data would also help us understand how the Affordable
Connectivity Program affects overall broadband adoption and how the
program furthers the Commission's efforts to close the digital divide.
Subscriber-level plan information would more easily be combined with
subscription data already collected by the Commission, which could
improve estimates of ACP subscribers that are first time broadband
adopters. Subscriber-level data may also improve consumer outreach
efforts, including the outreach efforts the Infrastructure Act permits
the Commission to pursue, as described in the ACP Order by targeting
geographic areas and particular demographics that lag behind in ACP
adoption. Finally, subscriber-level data may facilitate analysis of the
connection between Lifeline and the Affordable Connectivity Program. By
matching subscriber-level plan information across the two programs, the
Commission could study how subscribers are using both subsidies to meet
their broadband needs and whether their plan choices take full
advantage of the ACP subsidy.
17. The Commission also seeks comment on benefits and drawbacks of
collecting more aggregated data. If the Commission did not collect
subscriber-level data from providers, the Commission will need to
collect the data at some level of aggregation. For an aggregated data
approach, the Commission seeks comment on the level of data aggregation
and what, if any, other information should be collected from providers.
Should aggregated data be the number of individuals in a geographic
area subscribed to a unique plan? And if so, what is the appropriate
geographic level (e.g., census block, census tract, city (census
place), county) for aggregated data? Is there some way other than
geographic area that data should be aggregated? Should the plan
characteristics still be collected at the subscriber level if collected
through the ACP transparency data collection? Under the aggregated-
level approach, how should subscribers that are on the same plan with
respect to service characteristics, but who pay different amounts, be
treated? Under an aggregated approach, each field could be submitted as
an average or by category (e.g., speed tier). Are there specific fields
that would be best suited for categorization? Should providers
aggregate at the price-geographic level, the speed-geographic level, or
the price-speed-geographic level? Or some other combination of
variables? For example, should aggregate-level data be categorized by
census tract, download speed, and upload speed, with other fields
submitted as averages? The Commission seeks comment on the key fields
for aggregation. The Commission also seeks comment on how collecting
aggregated-level data as compared to
[[Page 37463]]
subscriber-level data would impact our ability to use this data
collection to fulfill the requirements in the ACP Order to collect
service plan characteristics and to evaluate the performance of the
Affordable Connectivity Program.
18. The Commission further seeks comment on how useful aggregated
data of providers' ACP offerings would be in evaluating the performance
and administration of the Affordable Connectivity Program as compared
to subscriber-level data. For example, at a high level of aggregation,
such as the provider-state level, how could one analyze differences
between rural and urban plan choices or subscription rates within a
state? Even if aggregation were at the census tract level, the
Commission may not be able to match subscribers between Lifeline and
the Affordable Connectivity Program, and would be unable to determine
if Lifeline subscribers are gaining additional value for their ACP
subsidy. Would aggregated data make it easier for the Commission to
analyze or publish the data? The Commission also seeks comment on the
relative burdens to providers in submitting aggregated data of their
ACP service offerings as compared with subscriber-level data. As
discussed above, for subscriber-level data, providers would be required
to input additional data in NLAD at enrollment in addition to the
information already required to enroll a household. For aggregated
data, providers may not need to enter additional data into NLAD, but
they would be required to submit such aggregated data to the
Commission. The Commission seeks comment on the burdens raised by these
data collection approaches. Are there specific steps the Commission
could take to the reduce such burdens (e.g., offering tools to
facilitate the collection)? Are there data that USAC already has access
to from participating providers which could be used for aggregation
without requiring additional data from providers? Are there
circumstances or reasons where aggregated data would be preferred to
subscriber-level data in evaluating the effectiveness of the Affordable
Connectivity Program?
19. The Commission also seeks comment on other data collection
alternatives. What about a collection that requires the production of a
combination of both subscriber-level data and more aggregated data?
What would be the benefits and challenges of a hybrid approach that
collects aggregated data and subscriber-level information from all ACP
subscribers? The Commission seeks comment on whether and in what
circumstances a hybrid approach assists in evaluating the Affordable
Connectivity Program.
20. Collection Impact on Stakeholders. The Commission seeks comment
on what the impacts and costs would be to stakeholders (households,
providers, the Commission, USAC) for the collection of subscriber-level
data and how they compare to the benefits of the data and the statutory
directive to collect and publish data to offer transparency about the
service offerings ACP households receive. What are the benefits and
burdens associated with requiring subscriber-level information from
providers, and how can the Commission reduce burdens associated with
providing subscriber-level plan information in addition to the
subscriber-level information already collected? Are there differences
in the benefits and burdens associated with requiring subscriber-level
information from small providers? If so, how can the Commission
structure this collection to minimize the economic impact on small
providers? How should the Commission structure a subscriber-level
collection to minimize the challenges associated with making
subscriber-level information publicly available for analysis? To what
extent can providers use an API or other tool to seamlessly submit and
update plan information?
21. The Commission also seeks comment on what the impacts and costs
would be to stakeholders for the collection of aggregated data. For
aggregated data, providers would be responsible for collecting all the
information of their ACP subscribers and compiling that information in
the manner required by the Commission. The Commission seeks comment on
our view that collecting aggregated data, especially depending on the
level of aggregation, may be burdensome for providers. Are there any
tools or steps USAC or the Commission can take to reduce burdens? The
Commission seeks comment on the burdens of this data collection on
providers. Does the burden vary depending on the level of data
aggregation? Could any other of USAC's systems be modified to allow for
aggregated data? Should the Commission requires providers to give us
information in specific popular machine-readable formats? How could the
Commission structure an aggregate-level broadband transparency data
collection to minimize the burdens associated with handling the ACP
transparency data? For small providers, what are the benefits and
burdens associated with an aggregate level data collection? How can the
Commission structure the collection to minimize any economic impact on
small providers?
22. Privacy and Proprietary Interests. Congress indicated that the
Commission should undertake the collection of data relating to ACP plan
price and subscription rates while still protecting the privacy
interests of individual subscribers. The Commission seeks comment on
any privacy concerns that may arise from the collection of subscriber-
level price, subscription rate, and plan characteristic information. As
part of the ACP enrollment process, the Commission already collects,
with subscriber consent, the subscriber's information. To what extent
would a subscriber-level collection of price, subscription rate, and
plan characteristics affect privacy interests of subscribers? Are there
any unique privacy concerns related to a subscriber-level collection in
areas or plans with low ACP enrollments? Can data masking methods be
utilized by providers to address any privacy concerns? Are there
alternative measures or safeguards that the Commission could adopt for
the Commission, USAC, or providers to mitigate any harm to subscriber
privacy? To what extent would a subscriber-level collection of price,
subscription rate, and plan characteristics impact providers? The
Infrastructure Act also seeks to ensure that the ACP data collection
and publication do not harm proprietary interests. Would a subscriber-
level collection of plan characteristics or other information raise
issues related to providers' proprietary information? If so, how can
the Commission balance these interests and/or mitigate the potential
harm?
23. Additionally, the Commission seeks comment on the extent to
which collecting additional subscriber-level data through the ACP
transparency data collection implicates statutory privacy regimes,
including the Electronic Communications Privacy Act (ECPA). The
Commission concluded a decade ago that it had sufficient authority
under the Communications Act to require eligible telecommunications
carriers (ETCs) to provide Lifeline subscriber-specific information to
the NLAD notwithstanding ECPA. The Commission explained that the
Communications Act clearly demonstrated ``Congress's intent that other
provisions of law should not be held to override our specific authority
to access information needed to perform oversight, including non-
content information, which generally is less sensitive than the
contents of communications.'' The Commission also concluded that ETCs
could divulge information about Lifeline and Link Up subscribers to the
Commission under an
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exception to ECPA that permits divulgence that is ``necessarily
incident to the rendition of the service.'' Similar to our current
practice in Lifeline, the Commission requires ACP providers to obtain
consent from subscribers prior to transmitting certain subscriber-
specific information to NLAD. The Commission request comment on whether
the Commission can collect additional subscriber-level data regarding
ACP households consistent with ECPA without obtaining additional
consent. The Commission also seeks comment on whether participating
providers may divulge ACP household price and plan data to the
Commission as necessarily incident to the providers' rendering service
under the Affordable Connectivity Program, given Congress's mandate to
collect broadband data and the importance that subscriber-level data
could have in evaluating the performance and value of the Affordable
Connectivity Program.
24. To ameliorate privacy concerns and ensure that subscribers are
cognizant of the uses of their personal information, the Commission
currently requires subscribers to consent to the transmittal of their
data to the Commission or USAC. In the Affordable Connectivity Program,
prior to obtaining consent, a participating provider must describe to
the subscriber the ``specific information being transmitted, that the
information is being transmitted the Administrator to ensure the proper
administration of the Affordable Connectivity Program and that the
failure to provide consent will result in subscriber being denied the
affordable connectivity benefit.'' The Commission seeks comment on the
need for any additional subscriber consent as well as how that consent
should be obtained.
25. The Commission further request comment on how to best balance
the burdens for providers and subscribers associated with obtaining
consent with the benefits of a subscriber-level collection. How would
providers obtain such consent from new ACP applicants and from existing
ACP households? Can consent be collected by USAC either when consumers
complete an application in the National Verifier or at the time of
their recertification? The Commission seeks comment on how consent can
be collected at the time of recertification, particularly where a
subscriber's eligibility is confirmed by querying the appropriate
eligibility database. If consent can be obtained only for a portion of
the ACP subscriber base, is it worth collecting partial subscriber-
level data? The Commission seeks comment on other ways in which
providers, the Commission, or USAC can obtain a consumer's consent to
permit their provider to submit ACP service plan information consistent
with any requirements the Commission adopt in this proceeding. How can
the Commission structures the consent process to minimize the cost or
burdens of consent? What burdens would be imposed on participating
providers if they are required to provide additional notice to, and
obtain additional consent from, existing ACP subscribers? Can the
Commission collects opt-out consent, or should consenting to
participation in a subscriber-level collection be strictly opt-in? For
the millions of households that are already participating in the
Affordable Connectivity Program, the Commission seeks comment on the
process by which providers, USAC, or the Commission would collect
consent for the subscriber-level data collection? Would requiring this
additional consent from subscribers risk depressing subscriber
participation in Affordable Connectivity Program? What role should
providers play in obtaining consent from their existing ACP subscribers
for a subscriber-level data collection? What is the cost to providers
of any requirement that they play a part in obtaining consent? How long
would it take for providers to obtain additional consents from existing
subscribers? If subscriber-level information is collected outside of
NLAD, should the Commission require providers to mask personally
identifiable information? Would requesting consent bias the data in a
way that would substantially reduce its usability?
26. If the Commission were to engage in an aggregate-level
collection, are there any separate privacy concerns that would arise
from such a collection? Are there any privacy concerns with the sharing
of aggregated information for areas or plans with low ACP enrollments,
including areas or plans with only a single subscriber? What is the
minimum level of geographic data specificity (e.g., census tract,
census block) that can assist the Commission in answering questions of
program performance, digital discrimination, digital divide, and other
matters of importance in judging ACP efficacy without overly burdening
subscriber privacy or provider confidentiality interests?
27. Publication of Data--Public Availability of Data. In addition
to requiring the Commission to collect price and subscription rate
data, Congress directed the Commission ``to make data relating to
broadband internet access service collected'' in this collection
``available to the public in a commonly used electronic format without
risking the disclosure of personally identifiable information or
proprietary information, consistent with'' Sec. 0.459 of the
Commission's rules. The Commission seeks comment generally on what data
should be made public, how subscriber privacy and provider interests
can be protected, and the method and timing of publication. The
Commission also seeks comment on how to best balance the benefits and
burdens associated with the publication of information collected
through the ACP transparency data collection. How should the Commission
structure the publication of information to minimize the challenges in
making subscriber-level information publishable? How should the
Commission structure the publication of information from the ACP
transparency data collection to minimize the challenges in making
aggregate-level information publishable?
28. Scope of Information Made Public. Commenters should address
what data collected by the Commission should be made public. The
Commission did not interpret the Infrastructure Act as requiring the
Commission to make publicly available all information collected under
section 60502(c)(1). The Act requires the Commission to make ``data''
available, not necessarily all of the data collected. The Commission
proposes that, at a minimum, only aggregated or masked data be made
publicly available, even if subscriber-level data is collected. The
Commission seeks comment on what data the Commission should make
publicly available on an aggregated basis and at what geographic level
(e.g., ZIP code, county, state). Should the Commission only make price
and subscription rate data public, because that is the scope of section
60502(c)(1) of the Infrastructure Act? Should the Commission also make
public other data proposed to be collected, such as plan
characteristics or program-performance-related data? Should the data
published pursuant to the Infrastructure Act also include information
collected outside of this collection? For example, should the
Commission make available as part of this release data about the
availability of plans fully covered by the ACP benefit? What public
information would be most useful to consumers, providers, outside
researchers, advocates, or governmental entities?
29. Personally Identifiable Information. The Infrastructure Act
provides that in making data available to the public, the Commission
must not ``risk the disclosure of personally identifiable
information.'' The Act does not define ``personally identifiable
information;'' rather, it requires the
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Commission to define the term via notice and comment rulemaking. The
Commission therefore seeks comment on how the Commission should define
personally identifiable information for purposes of making data
publicly available under section 60502(c) of the Infrastructure Act.
30. The Commission seeks comment on definitions of ``personally
identifiable information'' that might be appropriate in this context.
Should the Commission borrow a definition from another statute,
regulation, Executive order, or Government-wide guidance? If so, which
authority and why? For instance, Office of Management and Budget (OMB)
Circular A-130 defines ``personally identifiable information,'' for
purposes of agency information resources management activities, as
``information that can be used to distinguish or trace an individual's
identity, either alone or when combined with other information that is
linked or linkable to a specific individual.'' Similarly, the E-
Government Act of 2002, defines ``identifiable form'' as ``any
representation of information that permits the identity of an
individual to whom the information applies to be reasonably inferred by
either direct or indirect means.''
31. Proprietary Information. The Infrastructure Act also requires
the Commission to avoid risking the disclosure of ``proprietary
information'' when making data public under section 60502(c)(4). The
Act does not define ``proprietary information,'' nor does it require
the Commission to define the term. The Commission requests comment on
how to interpret ``proprietary information'' under section 60502(c)(4).
Should the Commission define the term at all, given that unlike
``personally identifiable information,'' a definition is not required?
Further, whose ``proprietary information'' needs to be protected in
this context? If it is subscriber proprietary information, how is
proprietary information different than personally identifiable
information? Or should the term be interpreted as meaning the
proprietary information of participating providers, i.e., proprietary
business information? Alternatively, should the Commission interpret
``proprietary information'' to mean information covered by section 222
of the Communications Act? Under that approach, the Commission would
need to avoid risking the disclosure of the proprietary information of
subscribers, participating providers, and equipment manufacturers.
32. Additionally, regardless of whether proprietary information
means that of subscribers, participating providers, or both, commenters
should address what constitutes proprietary information. Should the
Commission treat ``proprietary information'' as limited to trade
secrets and or privileged or confidential commercial, financial, or
technical data? If so, what type of participating provider data
collected under section 60502(c) could be considered proprietary? What
other statutes or regulations might the Commission look to in
interpreting ``proprietary information'' in this context? Does
aggregate data become proprietary, for either a subscriber or a
participating provider, at a certain level of granularity? Is it
sufficient if subscribers or participating providers have an
opportunity to request non-publication of proprietary information under
procedures such as Sec. 0.459 of the Commission's rules?
33. Protecting Personally Identifiable and Proprietary Information.
Because the Commission must not ``risk the disclosure of personally
identifiable information or proprietary information,'' the Commission
seeks comment on how the Commission should minimize the risk that such
information would be disclosed when making data available to the public
under section 60502(c)(4) of the Infrastructure Act. One way to protect
subscriber personally identifiable information is to publish only
aggregate data. Would doing so sufficiently protect personally
identifiable or proprietary information? What level of aggregation
would be sufficient? For what geographic area should data be published?
With the EBB Program, USAC released information first by three-digit
ZIP code areas, and then by five-digit ZIP code and county-level areas.
For the Affordable Connectivity Program, USAC releases enrollments by
five-digit ZIP code and county. What procedures should the Commission
have in place to ensure that there is adequate ``masking'' for data in
areas with few subscribers? For data that involves plan characteristics
or prices, should the values be aggregated to further address any
personally identifiable information or proprietary issues? For example,
should prices be grouped into $10 increments with a plan costing $55.34
being put in a bin with all plans costing between $50 and $60? Are
there other privacy concerns the Commission should consider when making
data available to the public other than personally identifiable
information and proprietary information?
34. Effect of 47 CFR 0.459. The Infrastructure Act states that the
Commission's protection of personally identifiable and proprietary
information must be consistent with Sec. 0.459 of the Commission's
rules. Section 0.459 of title 47 of the Code of Federal Regulations
provides procedures for requesting that information submitted to the
Commission be withheld from public inspection. The Commission seeks
comment on whether and how this rule should be incorporated into the
Commission's processes for publishing data under section 60502(c)(4) of
the Act. Does the statute's reference to Sec. 0.459 mean that a
subscriber or participating provider should have the ability to request
non-publication of certain collected information by submitting a
request under Sec. 0.459? If so, what provisions of section 0.459
should be applicable for requests of non-publication for purposes of
section 60502(c)(4)? How should such a request be submitted, what
information would a requester need to submit to justify a request for
non-publication of data, and when should a request be submitted vis-
[agrave]-vis the data publication date? That is, should a request for
nonpublication be required to be submitted before a data publication
date? In other contexts, the Commission allows filers of certain
information to check a box to request nondisclosure of privileged or
confidential information in lieu separately requesting confidentiality
under 47 CFR 0.459. Should the Commission consider a similar ``check
box'' approach for this data collection? If so, how would a checkbox be
incorporated in the collection process? Additionally, should some data
be deemed presumptively nonpublic, i.e., ``not routinely available'' to
the public under 47 CFR 0.457? If the reference in the Infrastructure
Act does not mean that the procedures of Sec. 0.459 need to be
incorporated in making data available to the public, what meaning
should the Commission give ``consistent with'' Sec. 0.459 of the
Commission's rules?
35. Format of Publication. The Commission must make data available
to the public in a ``commonly used electronic format.'' Further,
agencies must generally use a machine-readable format when making data
publicly available. The Commission therefore seeks comment on what
format the publisher of the data, whether it be the Commission or USAC,
should use when making it available to the public. How should the
Commission interpret ``commonly used electronic format?'' Should the
Commission require that the data be made public in a machine-readable
format with standard, labeled fields? Is the OPEN Government Data Act
of 2018 applicable to our publication responsibilities under the
[[Page 37466]]
Infrastructure Act? What file formats should the Commission provide the
data in? Both the Commission and USAC make datasets available for
viewing in Open Data portals and provide downloadable data in Comma
Separated Values (CSV), Extensible Markup Language (XML), Tab Separated
Values (TSV), Resource Description Framework (RDF), and Rich Site
Summary (RSS) formats. Should the Commission use different formats for
making publicly available different types of data? For instance, should
plan characteristic and provider enrollment data be published
separately or together? Should plan and provider enrollment data be
published at the same geographic level? The Commission proposes, at a
minimum, making aggregated data publicly available in CSV format, given
that this format is already used by the Commission and USAC. The
Commission seeks comment on this proposal.
36. Method of Publication. The Commission also seeks comment on the
method of making data available to the public. That is, who should host
the data and where? The Infrastructure Act requires only that the
Commission make data publicly available; it does not preclude
publication via third parties. Should the Commission post the data on
its website or Open Data portal? Or should the Commission direct USAC
to publish the data on its Open Data portal?
37. Timing of Publication. Although the Infrastructure Act requires
the Commission to make data available to the public, the Act does not
specify when publication should occur, other than prohibiting
publication prior to the Commission defining ``personally identifiable
information.'' The Commission thus seeks comment on the timing of
publication. Because Congress instituted an annual data collection, the
Commission proposes making data publicly available at least annually.
If data is collected on a more frequent basis, such as by participating
providers providing data to NLAD on a rolling basis, should the
Comission or USAC make data public more frequently than annually? If
so, how often? Commenters should also address how long after collection
data should be published. That is, how long after collection would data
become ``stale'' and lack utility for consumers or others? Should time
be built into the publication process to allow participating providers
to protect proprietary information from disclosure? The Infrastructure
Act is also silent as to how long the Commission must keep data
available to the public. For how long should the Commission maintain
the public-facing data? For a set amount of time? Until newer data is
made public? Further, the Commission must revise its data collection
rules no later than 180 days after they are issued. How, and to what
extent, should the need for rule revisions affect the timing of making
data available to the public?
38. Proposed Collection Approach. After weighing the benefits and
burdens of the statutorily required data collection, the Commission
proposes the most efficient and least burdensome approach is to modify
NLAD to incorporate new data fields that would collect price,
subscription rate information, and plan characteristics as discussed
above. The Commission will collect subscriber-level data by having
providers complete the new fields when enrolling households, and
updating fields for households already enrolled in the Affordable
Connectivity Program on a set time schedule. Under this approach, all
data that is required to be collected for the ACP transparency data
collection would be contained in NLAD, which would allow the Commission
to publish the data in a manner consistent with the statute. Taking
advantage of NLAD for this collection allows us to collect the
information without requiring providers to produce large volumes of
data each year. The Commission views the approach of submitting ACP
transparency data collection information to the NLAD at the time of a
transaction (e.g., whether at the time of enrollment, as an update for
a previously enrolled subscriber, or when necessary to update the
fields due to a change in service plan) as being less burdensome to
providers than the alternative option of compiling information for a
bulk production during a limited filing window. Allowing providers to
update the necessary fields at the time of the NLAD transaction also
avoids any duplicitous efforts to recreate subscriber-level data for a
separate submission. The Commission seeks comment on these views.
39. Guidance. The Infrastructure Act further provides that the
Commission ``may issue such guidance, forms, instructions,
publications, or technical assistance as may be necessary or
appropriate to carry out the programs, projects, or activities
authorized under this section, including to ensure that such programs,
project, or activities are completed in a timely and effective
manner.'' The Commission seeks comment on the meaning of this provision
and what training, support, and guidance should be provided to support
the ACP transparency data collection. What resources would be helpful
to providers to facilitate this data collection?
40. Enforcement. The Commission seeks comment on issues related to
enforcement of the annual data collection rules. Should the Commission
adopt rules specifically governing the enforcement of the data
collection requirement, or should the Commission employ the same
enforcement position that it adopted for the Affordable Connectivity
Program? Consistent with the approach in that program and its
authorizing statute, the Commission proposes to treat failure to submit
the data necessary for the ACP transparency collection, failure to
respond to the Administrator's or the Commission's request for data,
and failure to provide complete and accurate data as program rule
violations that may result in forfeiture penalties pursuant to Section
503 of the Act. The Commission proposes establishing a base forfeiture
amount that is proportionate to the level of data ultimately adopted,
for example on a per-subscriber basis or higher level of aggregation.
The Commission seeks comment on whether to assess the forfeiture on a
per-subscriber basis to reflect the number of subscribers for which the
provider has not submitted data. Alternatively, the Commission seeks
comment on establishing a forfeiture amount at the state or study area
level: that is, for any missing ACP data for subscribers within a state
or study area, a base forfeiture penalty amount would be applied.
Should the Commission consider establishing a base forfeiture amount of
$50,000 per state or study area for which a provider is missing ACP
transparency data collection information by the deadline, which is
consistent with precedent for violations of Commission filing rules?
The Commission seeks comment on other ways to calculate forfeiture
amounts for failure to comply with the rules the Commission establishes
for the ACP transparency data collection. In addition to a base
forfeiture for non-filing, should the Commission impose additional
fines each day a provider is not in compliance pursuant to Section
503(b)(2) of the Act? Given the importance of this congressionally
mandated data collection, the Commission proposes requiring the
submission of ACP transparency data collection information by the
deadline to be established by the Bureau or the Commission. The
Commission tentatively concludes that failure to meet the deadline will
constitute a rule violation that may result in a monetary forfeiture
penalty. The Commission
[[Page 37467]]
proposes to instruct USAC to provide the Enforcement Bureau a list of
providers that have failed to submit ACP transparency data collection
information by the deadline that identifies the subscribers, by state
and study area, for which the data has not been properly filed.
41. Finally, the Commission seeks comment on how to evaluate and
enforce the accuracy of the information presented in the ACP
transparency data collection. How can the Commission verify the
accuracy of the information that a broadband provider provides? How
should the Commission protect against inaccuracies in the information
provided? The Commission seeks comment on our proposal to require an
officer of each provider to certify, under penalty of perjury, to the
accuracy of the data and information provided prior to the submission
of each data collection. The Commission seeks comment on further
certifications and enforcement tools the Commission can use to ensure
full and accurate participation in the data collection. The Commission
seeks comment on whether a failure to comply with the rules the
Commission establishes for the ACP data collection could subject a
provider to the involuntary removal process the Commission established
in the ACP Order.
42. Timing. The Infrastructure Act requires an ``annual
collection'' relating to the price and subscription information. The
Infrastructure Act further provides that, ``not later than 180 days
after the date on which rules are issued . . . and when determined to
be necessary by the Commission thereafter, the Commission shall revise
the rules to verify the accuracy of data submitted pursuant to the
rules.'' The Commission seeks comment on when the collection can begin
in relation to the statutory requirement to revise the final rules
within six months of adoption of final rules. Does this require the
Commission to collect ACP data within a certain period of time? If so,
by when should the Commission commence the inaugural data collection?
For subsequent data collections, should the collection occur during the
same window as the collection? The Commission also seeks comment on the
filing window for collection. Should the Commission require providers
to submit data for subscribers enrolled as of a particular date? How
long should a filing window remain open?
43. The Commission also seeks comment on the statutory requirement
to revise the rules to verify the accuracy of the data within six
months from when the Commission adopts final rules and its impact on
this proceeding. What is intended by the language providing that ``the
Commission shall revise the rules to verify the accuracy of data
submitted pursuant to the rules''? What is the purpose of the language
limiting revisions to the final rules to verify accuracy? How should
the Commission track and verify the accuracy of data submitted? What
are the outer bounds on the period of time when the Commission must
update its final rules? What circumstances should warrant revision of
the rules? Should the updates to the rules include the possibility of
adding new variables to improve or refine the data collected? How
should the Commission determine when it is necessary to update the
final rules? What other considerations should the Commission take into
account when determining the necessity of updating the final rules for
this data collection?
44. The Commission also seeks comment on the requirements of the
Paperwork Reduction Act and the timing of the inaugural collection. In
establishing the EBB Program and the Affordable Connectivity Program,
the Consolidated Appropriations Act exempted the Commission from
certain rulemaking requirements under the Administrative Procedure Act
and the Paperwork Reduction Act. The Commission seeks comment on
whether this exemption applies to rules established in this proceeding.
Assuming the Paperwork Reduction Act requirements do apply to this
collection, the Commission seeks comment on how this impacts the timing
of the launch of the collection.
45. Efforts to Promote Digital Equity and Inclusion. 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 Commission
seeks comment on how our proposals may promote or inhibit advances in
diversity, equity, inclusion, and accessibility, as well the scope of
the Commission's relevant legal authority.
III. Procedural Matters
A. Initial Paperwork Reduction Act Analysis
46. This document contains proposed new or modified information
collection requirements. The Commission, as part of its continuing
effort to reduce paperwork burdens, invites the general public and the
Office of Management and Budget (OMB) to comment on the information
collection requirements contained in this document, as required by the
Paperwork Reduction Act of 1995, Public Law 104-13. In addition,
pursuant to the Small Business Paperwork Relief Act of 2002, Public Law
107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks specific
comment on how the Commission might further reduce the information
collection burden for small business concerns with fewer than 25
employees.
B. Initial Regulatory Flexibility Analysis
47. As required by the Regulatory Flexibility Act of 1980, as
amended (RFA), the Commission has prepared this Initial Regulatory
Flexibility Analysis (IRFA) of the possible significant economic impact
on a substantial number of small entities by the policies and rules
proposed in this notice of proposed rulemaking (NPRM). Written comments
are requested on this IRFA. Comments must be identified as responses to
the IRFA and must be filed by the deadlines for comments on the notice
of proposed rulemaking provided on the first page of the item. The
Commission will send a copy of the NPRM, including this IRFA, to the
Chief Counsel for Advocacy of the Small Business Administration (SBA).
In addition, the NPRM and IRFA (or summaries thereof) will be published
in the Federal Register.
a. Ex Parte Rules
48. 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, then the presenter may provide citations to such
[[Page 37468]]
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 47 CFR 1.1206(b). In proceedings governed by
47 CFR 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 this proceeding
should familiarize themselves with the Commission's ex parte rules.
b. Need for, and Objectives of, the Proposed Rules
49. In the Infrastructure Investment and Jobs Act (Infrastructure
Act), Congress established the Affordable Connectivity Program (ACP),
which is designed to promote access to broadband internet access
services by households that meet specified eligibility criteria by
providing funding for participating providers to offer certain services
and connected devices to these households at discounted prices. The
Affordable Connectivity Program provides funds for an affordable
connectivity benefit consisting of a $30.00 per month discount on the
price of broadband internet access services that participating
providers supply to eligible households in most parts of the country
and a $75.00 per month discount on such prices in Tribal areas. The
Commission established rules governing the affordable connectivity
benefit and related matters in the ACP Report and Order, 87 FR 8346
(Feb. 14, 2022).
50. The Infrastructure Act also directs the Commission to issue
``final rules regarding the annual collection by the Commission
relating to the price and subscription rates of each internet service
offering of a participating provider under the Affordable Connectivity
Program.''
51. This NPRM proposes rules to implement section 60502(c) of the
Infrastructure Act, to provide greater transparency into broadband
services provided by ACP participating providers, and to allow the
Commission to assess its progress towards the ACP program goals.
Specifically, the NPRM proposes establishing a mandatory annual data
collection, collecting price, subscription rate, and plan
characteristic information at the subscriber level through the National
Lifeline Accountability Database (NLAD).
52. The NPRM seeks comment on what plan characteristics, data
formats, and collection methods and timing should be collected or
adopted. For example, the NPRM seeks comment on whether the Commission
should collect information about plan speed or bundle characteristics,
and it also seeks comment on what common data formats the Commission
should collect and how the Commission should approach scheduling the
annual collection of ACP transparency data. The NPRM also seeks comment
on the burdens and benefits of requiring providers to submit
information at the subscriber level, aggregate level, and alternative
approaches.
53. In executing its obligations under the Infrastructure Act, the
Commission intends to establish rules and requirements that implement
the relevant provisions of the Infrastructure Act efficiently, with
minimal burden on participating providers. These actions are consistent
with our ongoing efforts to bridge the digital divide by ensuring that
low-income households have access to affordable, high-quality broadband
internet access service.
c. Legal Basis
54. The proposed actions are authorized pursuant to the
Infrastructure Act, div. F, tit. V, sec. 60502(c).
d. Description and Estimate of the Number of Small Entities to Which
the Proposed Rules Will Apply
55. The RFA directs agencies to provide a description of, and where
feasible, an estimate of the number of small entities that may be
affected by the proposed rules, if adopted. The RFA generally defines
the term ``small entity'' as having the same meaning as the terms
``small business,'' ``small organization,'' and ``small governmental
jurisdiction.'' In addition, the term ``small business'' has the same
meaning as the term ``small business concern'' under the Small Business
Act. A small business concern is one that: (1) is independently owned
and operated; (2) is not dominant in its field of operation; (3)
satisfies any additional criteria established by the Small Business
Administration (SBA).
56. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. Our actions, over time, may affect small entities that
are not easily categorized at present. The Commission therefore
describes here, at the outset, three broad groups of small entities
that could be directly affected herein. First, while there are industry
specific size standards for small businesses that are used in the
regulatory flexibility analysis, according to data from the Small
Business Administration's (SBA) Office of Advocacy, in general a small
business is an independent business having fewer than 500 employees.
These types of small businesses represent 99.9% of all businesses in
the United States, which translates to 32.5 million businesses.
57. Next, the type of small entity described as a ``small
organization'' is generally ``any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.''
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000
or less to delineate its annual electronic filing requirements for
small exempt organizations. Nationwide, for tax year 2020, there were
approximately 447,689 small exempt organizations in the U.S. reporting
revenues of $50,000 or less according to the registration and tax data
for exempt organizations available from the IRS.
58. Finally, the small entity described as a ``small governmental
jurisdiction'' is defined generally as ``governments of cities,
counties, towns, townships, villages, school districts, or special
districts, with a population of less than fifty thousand.'' U.S. Census
Bureau data from the 2017 Census of Governments indicates that there
were 90,075 local governmental jurisdictions consisting of general
purpose governments and special purpose governments in the United
States. Of this number there were 36,931 general purpose governments
(county, municipal and town or township) with populations of less than
50,000 and 12,040 special purpose governments--independent school
districts with enrollment populations of less than 50,000. Accordingly,
based on the 2017 U.S. Census of Governments data, the Commission
estimates that at least 48,971 entities fall into the category of
``small governmental jurisdictions.''
59. Wired Broadband Internet Access Service Providers. (Wired
ISPs). Providers of wired broadband internet access service include
various types of providers except dial-up internet access providers.
Wireline service that terminates at an end user location or mobile
device and enables the end user to receive information from and/or send
information to the internet at
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information transfer rates exceeding 200 kilobits per second (kbps) in
at least one direction is classified as a broadband connection under
the Commission's rules. Wired broadband internet services fall in the
Wired Telecommunications Carriers industry. The SBA small business size
standard for this industry classifies firms having 1,500 or fewer
employees as small. U.S. Census Bureau data for 2017 shows that there
were 3,054 firms that operated in this industry for the entire year. Of
this number, 2,964 firms operated with fewer than 250 employees.
Additionally, according to Commission data on internet access services
as of December 31, 2018, nationwide there were approximately 2,700
providers of connections over 200 kbps in at least one direction using
various wireline technologies. The Commission does not collect data on
the number of employees for providers of these services, therefore, at
this time the Commission is not able to estimate the number of
providers that would qualify as small under the SBA's small business
size standard. However, in light of the general data on fixed
technology service providers in the Commission's 2020 Communications
Marketplace Report, the Commission believes that the majority of
wireline internet access service providers can be considered small
entities.
60. Wireless Broadband internet Access Service Providers (Wireless
ISPs or WISPs). Providers of wireless broadband internet access service
include fixed and mobile wireless providers. The Commission defines a
WISP as ``[a] company that provides end-users with wireless access to
the internet[.]'' Wireless service that terminates at an end user
location or mobile device and enables the end user to receive
information from and/or send information to the internet at information
transfer rates exceeding 200 kilobits per second (kbps) in at least one
direction is classified as a broadband connection under the
Commission's rules. Neither the SBA nor the Commission have developed a
size standard specifically applicable to Wireless Broadband internet
Access Service Providers. The closest applicable industry with an SBA
small business size standard is Wireless Telecommunications Carriers
(except Satellite). The SBA size standard for this industry classifies
a business as small if it has 1,500 or fewer employees. U.S. Census
Bureau data for 2017 shows that there were 2,893 firms in this industry
that operated for the entire year. Of that number, 2,837 firms employed
fewer than 250 employees. Additionally, according to Commission data on
internet access services as of December 31, 2018, nationwide there were
approximately 1,209 fixed wireless and 71 mobile wireless providers of
connections over 200 kbps in at least one direction. The Commission
does not collect data on the number of employees for providers of these
services, therefore, at this time the Commission is not able to
estimate the number of providers that would qualify as small under the
SBA's small business size standard. However, based on data in the
Commission's 2020 Communications Marketplace Report on the small number
of large mobile wireless nationwide and regional facilities-based
providers, the dozens of small regional facilities-based providers and
the number of wireless mobile virtual network providers in general, as
well as on terrestrial fixed wireless broadband providers in general,
the Commission believes that the majority of wireless internet access
service providers can be considered small entities.
e. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small Entities
61. In this NPRM, the Commission seeks comment on its proposal to
require providers to provide subscriber level price, subscription rate,
and plan characteristic information to the Commission. To the extent
the Commission imposes an annual data collection, participating
providers of all sizes would be required to maintain and report
information concerning plan prices, subscription rates, and plan
characteristics. Any recordkeeping or reporting requirements adopted in
this proceeding however will apply only to those providers that choose
to participate in the Affordable Connectivity Program.
62. In assessing the cost of compliance for small entities, at this
time the Commission cannot quantify the cost of compliance with the
potential rule changes that may be adopted and is not in a position to
determine whether the proposals in the NPRM will require small entities
to hire professionals in order to comply. The Commission seeks comment
on its proposals and their likely costs and benefits as well as
alternative approaches. The Commission expects the comments received
will include information on the costs and benefits, service impacts,
and other relevant matters that should help us identify and evaluate
relevant issues for small entities, including compliance costs and
other burdens (as well as countervailing benefits), so that the
Commission may develop final rules that minimize such costs.
f. Steps Taken To Minimize the Significant Economic Impact on Small
Entities, and Significant Alternatives Considered
63. The RFA requires an agency to describe any significant,
specifically small business, alternatives that it has considered in
reaching its proposed approach, which may include the following four
alternatives (among others): ``(1) the establishment of differing
compliance or reporting requirements or timetables that take into
account the resources available to small entities; (2) the
clarification, consolidation, or simplification of compliance and
reporting requirements under the rule for such small entities; (3) the
use of performance rather than design standards; and (4) an exemption
from coverage of the rule, or any part thereof, for such small
entities.''
64. The NPRM seeks comments from all interested parties. The
Commission is aware that some of the proposed collections under
consideration will impact small entities. The NPRM does seek comment on
the impact of its proposed rules on providers, and small entities are
encouraged to bring to the Commission's attention any specific concerns
that they may have with the proposals outlined in the NPRM.
65. The Commission will evaluate the economic impact on small
entities, as identified in comments filed in response to the NPRM and
this IRFA, in reaching its final conclusions and taking actions in this
proceeding.
g. Federal Rules That May Duplicate, Overlap, or Conflict With the
Proposed Rules
66. None.
IV. Ordering Clauses
67. It is ordered, pursuant to section 60502(c) of the
Infrastructure Investment and Jobs Act, Public Law 117-58, 135 Stat.
429 (2021), that this Notice of Proposed Rulemaking is hereby adopted.
68. It is further ordered that, pursuant to applicable procedures
set forth in Sec. Sec. 1.415 and 1.419 of the Commission's Rules, 47
CFR 1.415, 1.419, interested parties may file comments on the notice of
proposed rulemaking on or before 30 days after publication in the
Federal Register, and reply comments on or before 45 days after
publication in the Federal Register.
69. It is further ordered that the Commission shall send a copy of
this notice of proposed rulemaking, including the Initial Regulatory
[[Page 37470]]
Flexibility Analysis, to the Chief Counsel for Advocacy of the Small
Business Administration.
List of Subjects in 47 CFR Part 54
Internet telecommunications, Reporting and recordkeeping
requirement, Telephone.
Federal Communications Commission.
Marlene Dortch,
Secretary.
Proposed Rules
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend 47 CFR part 54 as follows:
PART 54--UNIVERSAL SERVICE
0
1. The authority citation for part 54 continues to read as follows:
Authority: 47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220,
229, 254, 303(r), 403, 1004, 1302, 1601-1609, and 1752, unless
otherwise noted.
0
2. Amend Sec. 54.1801 by revising paragraph (e)(2)(ii)(A) to read as
follows:
Sec. 54.1801 Participating providers.
* * * * *
(e) * * *
(2) * * *
(ii) * * *
(A) Violations of the rules or requirements of the Affordable
Connectivity Program, including rules and requirements related to the
Affordable Connectivity Program transparency data collection, the
Emergency Broadband Benefit Program, the Lifeline program, the
Emergency Connectivity Fund or successor programs, or any of the
Commission's Universal Service Fund program.
* * * * *
0
3. Add Sec. 54.1813 to read as follows:
Sec. 54.1813 Affordable Connectivity Program transparency data
collection.
Participating providers shall transmit to the National Lifeline
Accountability Database in a format prescribed by the Administrator
each new and existing Affordable Connectivity Program (ACP)
subscriber's full name; contact information; total monthly charge for
internet service prior to any discounts (including bundled components,
associated equipment, taxes, and fees); itemized breakdown of monthly
charge including cost of ACP-supported service, associated equipment,
discounts, taxes, and fees; plan characteristics, including upload and
download speeds, average latency and packet loss, data caps, associated
equipment requirements, for bundles, voice and video characteristics
(e.g., number of minutes, number of channels offered); and plan
coverage by geographic level as to be determined by the Commission.
[FR Doc. 2022-13438 Filed 6-22-22; 8:45 am]
BILLING CODE 6712-01-P
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