Rule2022-28435
Affordable Connectivity Program; Emergency Broadband Benefit 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
January 13, 2023
Effective
February 13, 2023
Issuing agencies
Federal Communications Commission
Abstract
In the Fourth Report and Order, the Federal Communications Commission (Commission or FCC) establishes the Affordable Connectivity Program (or ACP) Transparency Data Collection, which will collect information related to the price, subscription rates, and plan characteristics of the internet service offerings of Affordable Connectivity Program participating providers as required by the Infrastructure Investment and Jobs Act (Infrastructure Act).
Full Text
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[Federal Register Volume 88, Number 9 (Friday, January 13, 2023)]
[Rules and Regulations]
[Pages 2248-2268]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28435]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[WC Docket Nos. 21-450; FCC 22-87; FRS 120419]
Affordable Connectivity Program; Emergency Broadband Benefit
Program
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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SUMMARY: In the Fourth Report and Order, the Federal Communications
Commission (Commission or FCC) establishes the Affordable Connectivity
Program (or ACP) Transparency Data Collection, which will collect
information related to the price, subscription rates, and plan
characteristics of the internet service offerings of Affordable
Connectivity Program participating providers as required by the
Infrastructure Investment and Jobs Act (Infrastructure Act).
DATES: Effective February 13, 2023, except for instruction 3 (Sec.
54.1813(b) through (d)) which is delayed indefinitely. The Commission
will publish a document in the Federal Register announcing the
effective date for those sections after the Office of Management and
Budget approval of the information collection requirements as
[[Page 2249]]
required by the Paperwork Reduction Act.
FOR FURTHER INFORMATION CONTACT: Eric Wu, Attorney Advisor,
Telecommunications Access Policy Division, Wireline Competition Bureau,
at (202) 418-7400 or <a href="/cdn-cgi/l/email-protection#2441564d470a5351644247470a434b52"><span class="__cf_email__" data-cfemail="2e4b5c474d00595b6e484d4d00494158">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's
Fourth Report and Order (Order) in WC Docket Nos. 21-450, FCC 22-87,
adopted on November 15, 2022 and released on November 23, 2022. The
full text of this document is available at <a href="https://docs.fcc.gov/public/attachments/FCC-22-87A1.pdf">https://docs.fcc.gov/public/attachments/FCC-22-87A1.pdf</a>. The Further Notice of Proposed Rulemaking
(FNPRM) that was adopted concurrently with the Fourth Report and Order
is to be published elsewhere in the Federal Register.
I. Introduction
1. In the Order, the Commission establishes the ACP Transparency
Data Collection, which will collect information related to the price,
subscription rates, and plan characteristics of the internet service
offerings of ACP participating providers as required by Infrastructure
Act.
2. The Order fulfills the Congressional mandate to issue final ACP
Transparency Data Collection rules regarding the annual collection of
information related to the price and subscription rates of internet
service offerings of ACP providers to which an ACP household
subscribes, no later than one year after the enactment of the
Infrastructure Act.
3. The ACP Transparency Data Collection that the Commission
establishes will offer an opportunity to collect detailed data about
the services to which households in the Affordable Connectivity Program
chose to apply the affordable connectivity benefit. The ACP
Transparency Data Collection will further leverage information required
for the broadband consumer labels, helping to create efficiencies and
minimize burdens on providers. The actions the Commission takes in
response to Congress's directive will allow the Commission to determine
the value being provided by the affordable connectivity benefit to
households, and to evaluate our progress towards the program goal of
reducing the digital divide, while also balancing the privacy interests
of consumers and minimizing burdens on the ACP participating providers
that serve the nearly 15 million households enrolled in the Affordable
Connectivity Program.
II. Discussion
4. In the Order, the Commission establishes the requirements for
the ACP Transparency Data Collection as required by the Infrastructure
Act. The Commission discusses the entities required to submit data, the
aggregated data to be collected, the timing of the collection, the
publication of data, and other administrative aspects of the ACP
Transparency Data Collection.
5. Data Filers. The Commission first establishes that all providers
participating in the Affordable Connectivity Program with enrolled
subscribers are required to submit data for the ACP Transparency Data
Collection. The City of New York agrees that the Infrastructure Act
requires all providers participating in the Affordable Connectivity
Program to submit data for the ACP Transparency Data Collection, and
the Commission did not receive any other comments regarding this
requirement. The Infrastructure Act is clear that the Commission is
mandated to collect data relating to the price and subscription rate of
``each internet service offering of a participating provider'' to which
an eligible household subscribes. The statute has no limiting language
to permit the Commission to exclude certain providers based on their
size, location, subscribers served, or other characteristics, and the
Commission sees no reason to permit any such exclusions. Moreover,
requiring all providers to submit data for all subscribers will help
the Commission study and evaluate the ACP-supported services received
by all subscribers across a diverse group of providers that offer a
variety of services and products across the United States, and give a
transparent overview of the broadband plans subscribed to by the
households enrolled in the Affordable Connectivity Program. The
Commission therefore requires every provider participating in the
Affordable Connectivity Program to submit data for the ACP Transparency
Data Collection.
6. Collection Structure, Aggregate Collection. The Commission next
establishes an aggregate collection that is designed to capture
information about ACP-supported services consistent with the
Infrastructure Act. In the ACP Data Collection Notice, 87 FR 37459,
June 23, 2022, the Commission sought comment on whether to collect data
at the subscriber level or aggregate level. In a subscriber-level
collection, price and plan characteristics for each subscriber in the
Affordable Connectivity Program would be submitted by providers,
whereas in an aggregate-level collection, providers would submit to the
Commission the number of subscribers for each unique plan for a given
geographic area (such as by state). Given these options, the Commission
proposed using the National Lifeline Accountability Database (NLAD) to
collect subscriber-level data at every enrollment, explaining that such
a collection may prioritize ease-of-use for service providers and
minimize administrative burdens, and the Commission sought comment on
that approach.
7. In response, many providers argue that an NLAD-based subscriber-
level collection would be more burdensome than an aggregate collection.
Specifically, providers comment that an NLAD-based subscriber-level
collection would require all providers to ``pull and report each
subscriber's personal information,'' retrain staff, and seek consent
from existing subscribers, in addition to making substantial system
updates. Commenters contend that potential subscribers that are already
hesitant to enroll in government programs may have that hesitancy
exacerbated by a request to share information with a government entity.
Commenters also point out that NLAD would require modifications to
accept the additional information. CTIA claims that the Infrastructure
Act ``specifically directs the FCC to conduct the data collection in a
manner that minimizes burdens on providers'' and that the record
demonstrates that the NLAD-based subscriber-level approach would impose
significant burdens. In addition, some commenters feel that a
``continuous'' NLAD-based subscriber-level collection is not consistent
with the ``annual collection by the Commission relating to the price
and subscription rates of each internet service offering'' as required
by the Infrastructure Act. Conversely, several commenters suggest that
an NLAD-based subscriber-level collection would be more beneficial than
an aggregate collection when it comes to analyzing data, and would also
ease administrative burdens. In sum, the record shows that most
providers view an aggregate data collection as the least burdensome
option.
8. Based upon the record, the Commission declines to adopt a
subscriber-level approach for the ACP Transparency Data Collection at
this time, finding that the subscriber-level approach as proposed by
the Commission may conflict with the statutory requirement to stand up
an annual collection and may be too administratively burdensome for
subscribers and providers, particularly
[[Page 2250]]
with respect to obtaining subscriber consent to the collection of
additional subscriber-specific data and in light of privacy concerns.
9. First, the Infrastructure Act requires the Commission to
establish ``an annual collection,'' and the Commission finds support in
the record for concluding that an aggregate collection would satisfy
that requirement. As described further in the following, the collection
the Commission establishes in the Order requires providers to submit
information as of a particular date and by a deadline. There is little
doubt that a collection with a single submission date in a year would
be an annual collection. It is less clear whether a subscriber-level
collection would comply with the statutory requirement. A subscriber-
level approach, as the Commission proposes, would require providers to
submit price and plan information each time a consenting subscriber
enrolls in the program, which as NTCA argues, could happen so
frequently that it would be difficult to describe as an annual
collection. Additionally, a subscriber-level collection would possibly
also require providers to separately collect data from subscribers who
were already enrolled in the Affordable Connectivity Program prior to
the data collection rules becoming effective. The Commission finds that
the statutory language requiring an annual collection weighs heavily in
favor of an aggregated approach.
10. Second, the Commission is mindful of the burdens associated
with collecting subscriber consent to the collection of subscriber-
specific data. The ACP Data Collection Notice pointed out that
collecting subscriber-level data implicates statutory privacy regimes
such as the Electronic Communications Privacy Act (ECPA), section 222
of the Communications Act of 1934, as amended, and section 631 of the
Cable Communications Policy Act of 1984 (Cable Act), which limit the
extent to which providers may disclose information about subscribers,
including to the government. Each of these statutes allows providers to
disclose subscriber-level information, however, if the subscriber
consents, and every commenter in the record to address subscriber
consent maintains that obtaining it is necessary to collect subscriber
data not already collected under ACP rules.
11. Providers argue collecting consent from new and existing
subscribers would be administratively burdensome, particularly for
smaller providers. There is also a concern, particularly where mistrust
of government programs is high, that seeking consent to disclose
additional information from subscribers could have a chilling effect on
subscriber participation in the Affordable Connectivity Program. The
Commission recognizes that in order to require the collection of
subscriber-level information, the Commission will not only need to
develop a process for the collection of consent from any new
subscriber, but the Commission will also possibly need to develop
consent processes for subscribers that have already enrolled in the
program. With nearly 15 million subscribers already enrolled, it could
be an immense undertaking to collect consents from those subscribers,
and there is no guarantee that subscribers would respond to a request
to provide consent so that the provider could submit price and plan
information at the subscriber-level. The Commission thus finds that the
burdens associated with subscriber consent also weigh against adopting
a subscriber-level collection at this time.
12. The Infrastructure Act does not address at what level of
granularity the data should be collected, leaving it to the
Commission's reasonable discretion to determine the most appropriate
way of collecting the data required. The Commission recognizes the
perception among many providers conveyed in the record that an
aggregate-level collection is preferred and that an NLAD-based
subscriber-level collection would be more burdensome as compared to an
aggregate collection. The Commission must balance the need to meet
statutory obligations to collect information about the internet
services ACP households receive with the need to stand up an annual
collection that minimizes burdens for providers and consumers. The
Commission finds that the aggregate collection adopted herein strikes
that balance by circumventing the need for an enrollment-based
collection requiring subscriber consent.
13. The aggregate collection, however, is not without
administrative burdens. The Commission disagrees with providers that
argue that an aggregate collection would minimize the need for system
development, as the Commission or USAC will still need to develop a
system through which to collect data, even if it is not done through
NLAD. Moreover, the Commission acknowledges that there are some
providers who argue that using NLAD for the ACP Transparency Data
Collection would not be burdensome. As explained by NaLA, adding only
the limited fields of price and unique plan identifier to NLAD for a
subscriber-level collection ``would not be unnecessarily burdensome.''
In light of these comments, and consistent with the ACP Data Collection
Notice and the record, the Commission seeks additional comments in the
FNPRM published elsewhere in the Federal Register, on the value of a
subscriber-level collection through the ACP Transparency Data
Collection and the processes for obtaining subscriber consent.
14. As discussed in more detail, for the annual aggregate data
collection, providers will need to provide: (1) a unique identifier
from the broadband label (or another unique identifier generated by the
provider in the case that the provider is not required to file a
broadband label for a plan, such as a bundled, grandfathered, or legacy
plan) for each plan with an enrolled ACP subscriber; (2) total ACP
households subscribed to each such plan; and (3) specified plan
characteristics associated with each service plan--all aggregated by
ZIP code. The Commission believes at this time that this approach best
balances the burdens to collect and report this information with the
need for a useful data collection.
15. Unique Identifier and Broadband Labels. The Infrastructure Act
requires the Commission to ``rely on the price information displayed on
the broadband consumer label . . . for any collection of data . . .
under section 60502(c).'' In the ACP Data Collection Notice, the
Commission seeks comment on the interplay between the broadband labels
and the ACP Transparency Data Collection, including how to interpret
the Infrastructure Act's requirement that the Commission relies on the
price information contained in the labels. The broadband labels include
a service plan's name, speed, and a unique identifier associated with
that plan, along with information relating to monthly price, additional
fees (one-time and monthly), and plan characteristics (upload and
download speeds, latency, and data caps). Commenters overwhelmingly
agree that the Commission shall rely on the upcoming broadband labels
to collect plan price and characteristic information in order to reduce
the burden that this collection places on providers. The Commission
finds here that leveraging broadband labels for purposes of the ACP
Transparency Data Collection not only fulfills the statutory
requirement, but also makes the ACP data collection more efficient and
minimizes the burden on providers by allowing them to cross-reference
the information displayed on a broadband label.
16. To allow the Commission to best utilize the information
contained in the broadband labels and to collect the data associated
with each ACP-supported
[[Page 2251]]
plan, providers are required to submit a unique identifier for each
service plan to which an ACP household applies the affordable
connectivity benefit. As the Commission recognizes in the Broadband
Labels Order, FCC 22-86, November 17, 2022, the use of a unique
identifier is a means of collecting plan data while minimizing the
burden on providers. Providers must submit as part of the annual
collection of plan information a unique identifier that matches the
plan's corresponding broadband label, where a broadband label exists.
Where a broadband label does not exist (e.g., grandfathered or legacy
plans) or where a broadband label does not uniquely identify the plan
to which an ACP household applies the benefit (e.g., bundled service
plans), providers are also required to create and submit a unique
identifier for any plan to which an ACP household subscribes. In such a
case, the provider should use the same format as for plans that are
covered by a broadband label. Consistent with the Broadband Labels
Order, providers will not be permitted to reuse unique identifiers. The
Commission directs the Wireline Competition Bureau (Bureau or WCB) with
support from the Office of Economics and Analytics (OEA) to develop
guidance concerning when a provider is required to formulate a new
unique identifier.
17. Price Information. The Commission requires providers to submit
the same price information as required on the broadband labels.
Providers will also, optionally, be able to submit the all-in price
with and without the affordable connectivity benefit applied. In the
ACP Data Collection Notice, the Commission seeks comments on the
language in the Infrastructure Act that the Commission ``shall rely on
the price information displayed on the broadband consumer label
required 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).'' The Commission also proposes
that price information collected would ``include the monthly charge for
the internet service offering that a household would be charged absent
the application of the affordable connectivity benefit,'' and sought
comment on that approach, as well as whether promotion pricing,
introductory rates, pre-paid or post-paid, taxes and fees, associated
equipment, or other discounts should be included as part of price, and
whether such information should be separately itemized and collected.
18. The Broadband Labels Order requires providers to display the
``base monthly price for the stand-alone broadband service offering,''
whether the monthly price is an introductory rate, itemized provider-
imposed recurring monthly fees (including fees for the rental or
leasing of modem and other network connection equipment), and itemized
one-time fees (such as a charge for purchasing a modem, gateway, or
router, activation fees, deposits, and installation fees). Commenters
agree that the price to be reported should reflect the amount that a
household would pay absent the ACP discount, and the Commission finds
that this price is reflected in the pricing requirements of the
Broadband Labels Order. The Commission therefore finds that the price
required to be submitted for this collection will reflect the same
pricing elements as set forth in the Broadband Labels Order. Providers
should use the same format for providing price information as they will
for the broadband labels, and include: (1) the base monthly price for
the broadband offering (in the case of bundled offerings, can be the
total bundled price or separated out bundled price); (2) whether the
monthly price is an introductory rate; (3) itemized provider-imposed
recurring monthly fees (excluding government taxes or fees); and (4)
itemized one-time fees.
19. Commenters were split as to whether the individual components
within the price should be itemized, with some supporting the itemized
reporting, while others opposed their inclusion, including because
discounts or promotional rates may skew the analysis of average rates,
and taxes and fees vary widely, making reporting difficult. To provide
more transparency into the prices that households pay, as well as to be
consistent with the Broadband Labels Order, the Commission requires
itemized reporting of provider-imposed monthly recurring fees and one-
time fees. The Broadband Labels Order requires that providers display
whether ``the offered price is an introductory rate, and if so, the
price the consumer will be required to pay following the introductory
period.'' The Commission finds that requiring providers to submit the
same pricing information about introductory rates and post-introductory
rates for the ACP Transparency Data Collection will help minimize any
confusion about comparing rates, allowing for a more detailed and
accurate analysis of rates. The Broadband Labels Order also does not
require providers to display the amount of any offered discounts (such
as those for paperless billing, automatic payment (autopay), or any
other discounts), or the amount of government taxes, and the Commission
similarly does not require providers to submit such information as part
of this data collection. While the Commission will not require
providers to display discounts, will instead have optional fields for
providers to voluntarily identify discounts.
20. Broadband Equipment Fees. The Commission requires providers to
submit information about recurring or one-time modem or router rental
fees as part of this collection. The Commission concludes that it is
appropriate to collect information about recurring or one-time modem or
router rental fees, not only because of support in the record, but also
because aligning the collection with the requirements of the Broadband
Labels Order is likely to minimize the burdens on providers. Many
commenters suggest that the Commission collects the prices of
associated equipment, which may increase transparency about pricing and
what households are getting as part of their monthly fee. NTCA, on the
other hand, argues that including information such as the price of
associated equipment is not necessary as part of this collection
because the fact that associated equipment costs are assessed on top of
the monthly cost for service ``is not something with which policymakers
are unfamiliar.'' The Commission agrees with commenters that pricing
information about associated equipment is useful in determining the
value provided by the Affordable Connectivity Program. Moreover,
because the affordable connectivity benefit can be applied to
``associated equipment'' including modems, routers, hotspots, and
antennas, information about the recurring costs for such equipment
would help us understand the true price of ACP-supported services. To
address NTCA's arguments, the Commission finds that to understand and
assess the price of the ACP-supported service, the Commission needs to
not only know the presence of charges for associated equipment, but the
amounts charged. Furthermore, the Broadband Labels Order also requires
providers to list monthly charges for the ``rental or leasing of modem
and other network connection equipment'' as well as any one-time fees
for the purchase of such associated equipment. The Commission finds
that adhering to the itemized pricing requirements of specific
recurring and one-time fees in the Broadband Labels Order is consistent
[[Page 2252]]
with the Infrastructure Act, makes for an efficient collection, and
will not be burdensome to providers. To fully understand the effect
associated equipment may have on price, providers must also submit
information on whether a plan requires associated equipment and whether
any required associated equipment is included in the base monthly
price.
21. Bundled services pricing. The Commission also concludes that
providers must submit information about the prices of bundled service
offerings as part of this collection. The Commission finds that
collecting price information for bundled plans supported by the ACP
benefit is necessary to fulfill the statutory mandate to collect price
information about ACP-supported plans, which includes bundled services.
The Commission recognizes that the Broadband Labels Order gives
providers the option to display pricing information for bundled plans,
but as further discussed, the approach the Commission adopts for
collecting bundle price information minimizes burdens by not requiring
bundle component pricing to be reported separately while ensuring that
the Commission collects the price information required. The Commission
requires the base monthly price for a bundle to reflect the price for
all services in the bundle and find that the prices for different
services within the bundle do not need to be separated out. Some
commenters urge the Commission to not ``require providers to identify
separately the specific prices of discrete services within `bundled'
service packages,'' while other commenters preferred breaking down the
costs within bundles. The Commission agrees with those commenters
asserting that providers should not be required to separately apportion
out the price for broadband and non-broadband components for purposes
of the ACP Transparency Data Collection. The Commission finds that the
base monthly price for a bundle should reflect the price for all
services in the bundle, and the Commission defines bundle as the
combination of broadband internet access service with any non-broadband
internet access service offerings, including but not limited to video,
voice, and text. Given the complexity of apportioning out the price
associated with the bundles that can be supported by the affordable
connectivity benefit, the Commission finds that asking providers to
report a single base monthly price for bundled plans minimizes the
burden on providers and outweighs any benefit of requiring the provider
to separately itemize different bundle pieces. While understanding
pricing associated with the broadband portion of the bundle may help to
understand the value as it relates to the data and speed also reported
for that broadband service, the Commission recognizes that apportioning
out the price of a broadband service and the voice component for this
data collection may be unduly burdensome for providers. When reporting
price information for a bundle, for example, if a bundle contains
video, broadband, and telephone, and the base monthly price for that
bundle is $70, then providers will need to report only $70 and not
apportion out the broadband and non-broadband pieces. Providers must
also adhere to the requirements for itemization of specific one-time
and recurring fees proceeding, but providers will not be required to
itemize prices for components that are not related to broadband service
(e.g., monthly rental for DVR, set-top box, phone charges).
22. The Commission declines to adopt Altice's proposal to permit
providers to report pricing plan information as a series of ranges
rather than providing precise information. Altice contends that
allowing the submission of data in a range format rather than a more
precise format will permit more transparency by allowing for an
``apples-to apples'' comparison of plans, as there may be more
comparison points if plans are grouped by range rather than specific
characteristics. The Commission does not find that reporting of prices
and speeds in this manner would provide useful and accurate data for
purposes of determining the prices of ACP-supported services. For
example, Altice suggests a provider could put their plan in the $70-
89.99 price range and further select a 50-100 Mbps speed range and 250-
350 GB data cap. However, under this approach, one subscriber could be
paying $89.99 for 50 Mbps speed and a 250 GB data cap, and another
subscriber could be paying $70 for a 100 Mbps speed and 350 GB data
cap, and those two plans would be deemed similar for comparison
purposes, despite one plan offering significantly better service for a
significantly lower price. The use of ranges could thus mask important
distinctions between service offerings, making it difficult for the
Commission to analyze trends in the program with precision.
23. Optional reporting of all-in price information. Considering the
record, the Commission also finds that it would be effective to collect
the all-in price--that is, the actual price that would be paid by the
ACP household, absent the application of the affordable connectivity
benefit. This price would include the price of any associated
equipment, taxes, and fees as well as any non-ACP discounts or
promotions offered to the customer. With respect to bundled service
offerings, the all-in price should be the entire price of the bundled
service, as this will allow us to get a view of the actual expenses
paid by ACP households. The Commission finds that collecting the all-in
price will help the Commission determine a household's actual broadband
expenses, absent the ACP benefit. The Commission agrees with the City
of Seattle that collecting all-in price will help the Commission
determine progress towards reducing the digital divide as cost is ``one
of the primary barriers to broadband adoption'' and collecting all-in
price will better inform the Commission and local stakeholders about
the pricing of ACP plans.
24. Additionally, collecting the all-in price with the affordable
connectivity benefit applied (net-rate charged) will help the
Commission determine the efficacy of the Affordable Connectivity
Program. In the ACP Data Collection Notice, the Commission seeks
comments on whether there were ``any other indicators of price that
should be collected.'' The Competitive Carriers Association (CCA),
CTIA, NCTA--The Internet & Television Association (NCTA), and USTelecom
(collectively, the Associations) suggest that the Commission optionally
permits providers to submit the ``net-rate charged'' as part of this
collection, which they define as the ``recurring monthly price charged
to ACP households . . . for ACP-supported services after application of
any state or federal low-income benefits or any applicable promotions
or discounts.'' They argue that collecting the net-rate charged would
allow the Commission to determine the average out-of-pocket costs for
ACP households. The Commission finds that information concerning ACP
subscribers' out-of-pocket expenses is valuable to the Commission and
will assist in determining the efficacy of the ACP benefit in reducing
the digital divide, and adopt the Associations' proposal in part.
Additionally, providers can optionally submit as part of this
collection, the total number of subscribers paying $0 and the average
``all-in'' price for subscribers whose monthly bill is greater than $0,
after all discounts and benefits, including the ACP benefit and
Lifeline (where applicable), have been applied. By
[[Page 2253]]
limiting the collection of net-rate charged to subscribers with out-of-
pocket expenses after the application of the affordable connectivity
benefit, the Commission ensures that the Commission collects data that
most accurately reflects the average out-of-pocket expenses paid by ACP
subscribers.
25. The Commission acknowledges comments suggesting that collecting
``granular price information'' including all-in price would be
burdensome and would present administrative or technical challenges.
Given the mixed support for reporting such information, for purposes of
this collection, providers will not be required to submit all-in price
or the net-rate charged, and all-in price and net-rate charged will
instead be optional fields that providers can choose to submit.
26. Subscription Rate. In the ACP Data Collection Notice, the
Commission sought comment on the meaning of ``subscription rate'' in
the statute, and proposed collecting the number of ACP households that
subscribe to each unique internet service offering. The Commission
further sought comment on what period of time and geographic regions
should be covered for the collection. Commenters propose that in an
annual aggregate collection, the Commission would collect data from
providers once per year on a chosen data submission date on the prices
of broadband plans, and the number of ACP subscribers for each plan
(indicating the subscription rates of each plan), grouped by state,
with the data current as of a reference or ``snapshot'' date.
Commenters support aggregating data at a state level as of a specific
snapshot date, arguing that it would be less burdensome as providers
already track enrollment by state. Some commenters note that under this
approach, it would not be necessary to disaggregate the data by month
or quarter. Some commenters suggest that data should be organized at
the ZIP code and county level, as that may help identify areas in need
of broadband assistance. USTelecom, NTCA, and the National Rural
Electric Cooperative Association support aggregating data at the ZIP
code level as an alternative to aggregating at the state level, as ZIP
codes are generally in providers' systems, which would reduce the
burdens of data gathering. WISPA recommends that data be collected ``on
a census block level, which would be consistent with collection efforts
for Form 477 and would avoid imposing new burdens on providers familiar
with collecting such information on a census block level.'' Conversely,
INCOMPAS argues that an aggregate collection should not be done at the
census tract or census block, as it may ``unnecessarily burden
competitive providers who do not have the size and resources that
incumbents typically enjoy.''
27. The Commission finds that the record supports aggregating the
data at the ZIP code level where the subscriber resides as of a single
snapshot date, and requires providers to submit subscription rate
information consisting of the total number of ACP households that are
subscribed to each service plan with an enrolled ACP subscriber. The
Commission finds that aggregating at the ZIP code will minimize burdens
on providers given that ZIP code information is typically in providers'
billing systems, and will provide more informative data for the
Commission than aggregating solely at the state level. The Commission
will not require providers to submit aggregate data below the ZIP code
level at this time. The Commission reminds providers that plans that do
not require a unique identifier under the Broadband Labels Order, such
as bundled or legacy plans, will still require a unique identifier for
the purposes of this collection.
28. Subscription Rate Subcategories for Lifeline, Tribal, and High-
Cost. In addition to collecting the total number of ACP households
subscribed to each service plan with an enrolled ACP subscriber by ZIP
code, the Commission requires providers to subdivide this data by
submitting similar subscribership information for: (1) ACP households
also enrolled in the Commission's Lifeline program; (2) ACP households
that receive the ACP Tribal enhanced benefit; and (3) ACP households
that receive the enhanced benefit for high-cost areas. The ACP Data
Collection Notice not only proposed to collect total program
subscribership data, but it also sought comment on collecting other
subscription rate data, including data related to subscription trends.
The ACP Data Collection Notice suggested using collected data to
improve ACP outreach and analyze the connection between the Affordable
Connectivity Program and the Lifeline program, and asked about
collecting information relating to ACP performance and digital equity.
29. The record on collecting data relating to Lifeline does not
oppose collection of aggregate subscribership information relating to
ACP subscribers also enrolled in Lifeline for a particular plan. ACA
Connects opposes collecting subscriber-level data to analyze the
Lifeline-ACP connection, but it suggests that the Commission could
facilitate analyzing the connection between Lifeline and the Affordable
Connectivity Program by requiring providers to submit data on the
number of ACP subscribers that are also enrolled in Lifeline. NCTA
asserts that USAC ``presumably already has'' data to analyze the
connection between Lifeline and the Affordable Connectivity Program and
contends that ``data gathered from providers would be redundant.'' But
it makes this argument in the context of opposing a subscriber-level
collection and acknowledges that the Commission can conduct a variety
of analyses relating to ACP efficacy, consumer outreach, and the
digital divide with ``aggregated data for each internet service
offering at the state-level.'' The Commission believes that collecting
aggregated data on the number of ACP subscribers to a plan that are
also enrolled in Lifeline for that plan would allow the Commission to
understand the plans and prices that the combined Lifeline and ACP
benefits are applied to and help the Commission to assess whether the
combined Lifeline and ACP benefits contributes to any significant
difference in plan choices compared to the ACP benefit alone. The
Commission thus requires providers to submit subscription rate
information consisting of the number of ACP households that are
subscribed to each service plan with an enrolled ACP subscriber who are
also enrolled in Lifeline for that plan. As with total subscribership
data, this data is to be aggregated by ZIP code.
30. The Commission further requires providers to submit the number
of ACP households receiving the Tribal enhanced benefit that are
subscribed to each service plan with an enrolled ACP subscriber and the
number of ACP households receiving the high-cost enhanced benefit that
are subscribed to each service plan with an enrolled ACP subscriber, by
ZIP code. Although the record does not discuss collecting these
subcategories of subscribership data, several commenters support
collecting data that would allow the Commission to understand the
equity outcome and impacts of the Affordable Connectivity Program.
Other commenters note that Tribal and rural areas often ``critically
lack internet access comparable to the Commission urban counterparts.''
And NCTA states that aggregate data ``can help the Commission
understand how ACP `affects overall broadband adoption and how the
program furthers the Commission's efforts to close the digital divide'
just as much as individual data would.'' Collecting data on the number
of ACP subscribers enrolled in each plan who receive the ACP Tribal or
[[Page 2254]]
high-cost enhanced benefits, by ZIP code, would help the Commission
understand which plans and prices these enhanced benefits are applied
to. This in turn would help the Commission assess whether the enhanced
benefit contributes to plans that are of higher, equal, or lower
quality compared to the average ACP plan. The Commission directs the
Bureau, in consultation with OEA, the Office of Managing Director, and
USAC, as appropriate, to establish the electronic format for the
submission of aggregated data related to price, subscription rate, and
plan characteristics, as well as the process by which providers can
submit this aggregated data within the filing window and deadlines
established herein. In developing the format, the Bureau should
consider allowing providers to rely on the information prepared for
broadband labels to the greatest extent possible.
31. Optional Pricing-related Subscription Rates. Furthermore, in
addition to collecting the subscription rates of plans on which ACP
subscribers are receiving Lifeline, ACP Tribal enhanced benefits, or
ACP high-cost enhanced benefits, the Commission gives providers the
option to submit by plan identifier and ZIP code the total number of
subscribers that are on introductory pricing plans; the total number of
subscribers that paid a set-up or activation fee; and the total number
of subscribers that are paying $0 after all discounts and the ACP
benefit are applied. In the ACP Data Collection Notice the Commission
seeks comments on whether to collect other subscription rate data,
whether there was information about subscribers that would be helpful
to evaluate the performance of the Affordable Connectivity Program, and
asked whether it would be valuable to collect information related to
the growth rate.
32. There is support in the record for the collection of
information relating to introductory prices. As several provider
associations point out, there is value in understanding the extent to
which ACP households rely on promotions and discounts, which include
introductory rates. While some commenters oppose collecting the
introductory rates paid by subscribers, they do not raise any
objections to the optional collection of the number of subscribers who
are paying introductory rates. The Commission finds that collecting the
number of subscribers by plan identifier and ZIP code that are paying
introductory rates will assist in determining the growth rate of the
program and in evaluating the performance of the program. Knowing the
number of ACP subscribers who are currently paying introductory rates
will assist the Commission in determining the growth rate of the
program, as it will help to understand the number of subscribers who
may be subject to upcoming price increases, and may be at risk of
dropping out of the program. Additionally, understanding the number of
subscribers who are paying introductory rates will give the Commission
greater insight into the number of new subscribers that each provider
has under the ACP. This information will assist the Commission in
evaluating progress towards the ACP program goal of reducing the
digital divide and understanding whether ACP subscribers are
predominantly new subscribers to broadband internet or are using the
ACP benefit to subsidize service they previously paid for. Consistent
with the comments of the provider associations, and to avoid burden
associated with this more granular subscribership data, at this time
the Commission makes the submission of the number of subscribers who
are paying introductory rates or who are on time-limited promotional
pricing plans optional for ACP participating providers.
33. Likewise, there is general support for the collection of
information concerning set-up fees, and no objection to the collection
of the number of subscribers who pay set-up fees. The Commission finds
that collecting the total number of subscribers who paid a set-up fee
by plan identifier and ZIP code will help the Commission understand the
costs borne by subscribers to set up or activate service. Set-up fees,
particularly in the context of fixed broadband service, can be a
barrier to the adoption of broadband service. This information about
the number of subscribers who are encountering set-up fees will help
the Commission evaluate the efficacy of the ACP, and progress toward
the program goal of reducing the digital divide. The Commission
acknowledges comments that the mandatory collection of granular pricing
and subscription rate data may impose a burden on providers, and
therefore at this time will make the submission of the total number of
subscribers who are paying set-up fees optional for ACP participating
providers.
34. Furthermore, the Commission collects the total number of
subscribers who are paying $0 after the application of the ACP benefit,
and any non-ACP discounts or promotions, by plan identifier and by ZIP
code. There was general support in the record for collecting the actual
price of ACP service plans, and for collecting the subscription rate
for various service plans. The Commission finds that collecting the
total numbers of subscribers in a given ZIP code, and on a given plan,
that are paying $0 will help the Commission evaluate the performance of
the ACP. Knowing the number of subscribers in a given ZIP code and on a
given plan that are fully covered by the ACP benefit will help the
Commission understand the value that ACP households are obtaining from
the federal subsidy and the progress the Commission is making toward
reducing the digital divide. To minimize the burden on providers, the
Commission makes the collection of this information optional at this
time. Therefore, at this time, submission of the number of subscribers
for whom the net-rate charged is $0 aggregated by ZIP code and plan
identifier will be optional for ACP participating providers.
35. Plan Characteristics. In addition to collecting subscription
rates for each plan by provider aggregated at the ZIP code level, the
Commission also directs providers to submit service plan
characteristics to fulfill requirements under the Infrastructure Act to
collect ``data relating to price and subscription rate information.''
In the ACP Order, 87 FR 8346, February 14, 2022, the Commission
recognizes that collecting service plan characteristics could help the
Commission determine the value of the ACP to households and directed
the staff to determine the appropriate plan characteristics for the
collection. In the ACP Data Collection Notice, the Commission proposes
using the ACP Transparency Data Collection to collect certain
characteristics of ACP service plans. Collecting these data will help
the Commission to understand the preferences of the ACP households, and
to determine the value of the Affordable Connectivity Program,
consistent with the Commission direction in the ACP Order. This part of
the collection is also consistent with the requirement in the
Infrastructure Act to collect ``data relating to price and subscription
rate information.'' Specifically, in addition to the pricing
information on the broadband label the Commission also requires
providers to submit the additional plan information found on a
broadband label. The Commission will also collect information not
included on the broadband label; specifically, maximum advertised
speeds, bundle characteristics, and associated equipment requirements
for each plan with an enrolled ACP subscriber. Providers will be
required to submit this
[[Page 2255]]
information for all plans with ACP subscribers; however, some of the
fields on a broadband label may not be applicable to legacy plans and
will be optional.
36. The Commission disagrees with the commenters who suggest that
the Commission is not authorized to collect service plan characteristic
information as part of this collection because plan characteristics are
``outside the scope'' of the Infrastructure Act. The Commission finds
that plan characteristics are contemplated by the provision of the
Infrastructure Act compelling the Commission to collect ``data relating
to price and subscription rate information.'' The price of broadband
service is determined in part by plan characteristics, including but
not limited to upload and download speeds and data caps. In fact, the
Commission has found a positive relationship between download speeds
and price in the fixed broadband market, and between data caps and
price in the pre-paid wireless market. Moreover, the collection of plan
characteristic information, including associated equipment
requirements, plan latency, and bundle characteristics, is necessary
because such information will allow the Commission to contextualize
service plan price information and determine the value being provided
to eligible households by the ACP.
37. T-Mobile and Altice contend that the Infrastructure Act's
direction to rely on the information contained in the broadband labels
prevents the Commission from collecting any price or plan
characteristic information not contained in the labels, including data
cap and bundle characteristic information. The Commission declines to
adopt this interpretation. The relevant provision of 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) of the
ACP Transparency Data Collection.'' The language of the statute notes
that the Commission shall rely on the pricing information on the
broadband label but does not state that the Commission is limited to
the information displayed on the label. The Commission views this
provision of the Infrastructure Act as working alongside the redundancy
avoidance provision under section 60502(c)(3) of the (what rule) to
avoid imposing duplicative collection requirements on providers, and as
an instruction to utilize the price information in the labels where
feasible.
38. Speed. In the ACP Data Collection Notice, the Commission
proposes collecting speed information as one metric of plan
characteristics covered by the ACP Transparency Data Collection. As
speed is one of the information fields contained on the upcoming
broadband labels, the Commission requires providers to submit data
related to the speed of the services to which ACP households subscribe,
in line with the Infrastructure Act's direction to ``rely'' on the
broadband labels. Such speed data will include the actual (i.e.,
typical) download and upload speed and typical latency data that
providers will be required to include on the broadband labels, in
addition to advertised speed.
39. Commenters generally support the collection of service plan
speed. Commenters recognize the importance of broadband speed,
describing it as among the ``key characteristics'' utilized by
consumers in distinguishing between plans, and suggesting that the
collection of speed information could allow the Commission to get a
``more accurate depiction of the service experience'' of ACP
subscribers. Moreover, collecting speed information is crucial for the
Commission to understand the value being provided by the affordable
connectivity benefit, because the speed of a broadband service plan
influences what internet applications a household can use.
40. Some commenters suggest that collecting both the advertised and
actual speed of ACP service plans will allow the Commission to compare
the speeds and get an accurate view of the ``service experience'' of
ACP subscribers. Joint commenters Public Knowledge and Common Sense and
the City of Seattle argue that by collecting both advertised and actual
speed, the Commission will be able to ensure that subscribers are
obtaining value from their benefit and are able to use the federal
subsidy to receive their intended service. The Commission acknowledges
that some commenters argue that collecting speed information or
requiring both advertised and actual speeds would be burdensome to
providers, but finds that the benefits of collecting such information
outweigh any burdens. The Commission finds that the requirement to
submit the actual speed of a service plan is not overly burdensome, as
providers will be required to produce this information as part of their
broadband labels. Furthermore, providers should be accustomed to
producing advertised speed information because providers are already
required to submit advertised speed as part of the Form 477 collection
and provide such information to potential subscribers on their public
facing websites in the ordinary course of business. As noted, the
collection of advertised speed is also consistent with the requirement
in the Infrastructure Act to collect ``data relating to price and
subscription rate information.'' Therefore, providers will be required
to submit the actual and advertised speeds of ACP service plans as part
of this collection.
41. Consistent with the Broadband Data Collection definition of
advertised speed, the Commission uses the maximum advertised upload and
download speed for fixed providers, and the minimum advertised upload
and download speeds for mobile providers. For actual speed, the
Commission uses the definition adopted in the Broadband Labels Order:
the typical upload and download speeds for a particular speed tier. For
fixed broadband plans, the Commission directs providers to utilize the
Measuring Broadband America (MBA) methodology or other relevant testing
data. For mobile broadband plans, the Commission requires providers to
submit the applicable technology type (e.g., 4G, 5G), and direct
providers to use the methodology adopted in the Broadband Labels Order:
reliable information on network performance that is the result of their
own third-party testing.
42. To ensure comprehensive data with respect to ACP-supported
plans, the Commission requires providers to submit latency data
consistent with the requirements in the Broadband Labels Order.
Commenters argue that collecting latency data is overly burdensome and
suggest that latency is not one of the ``key characteristics'' utilized
by consumers in distinguishing between plans. The Commission finds that
while there is merit to this argument with respect to grandfathered or
legacy plans, which are neither marketed nor available to new
consumers, the inclusion of latency on broadband labels warrants the
inclusion of these data in the ACP Transparency Data Collection for
currently marketed plans. The Commission clarifies that such
information will not be required for legacy or grandfathered plans,
although such information may be voluntarily submitted by providers.
43. Data Caps and Connection Reliability. In the ACP Data
Collection Notice, the Commission seeks comments on whether to collect
information on data caps for ACP-supported services, including the
amount of the data cap and the number of ACP households that reached
the cap. The Commission agrees with
[[Page 2256]]
commenters that information concerning data caps is critical to
allowing consumers and the Commission to determine the value provided
by a service plan. For example, ACA Connects, in supporting the
collection of data cap information, characterizes data caps as among
the ``key characteristics'' that subscribers rely upon when choosing
between service plans. The City of Seattle also characterized data caps
as among ``the most important data to collect on service plan
characteristics.'' WISPA argued that the Commission should not collect
data cap information, given the burden such a collection would impose
on small providers. Like service plan speed, data caps inherently limit
the use of a subscriber's broadband connection. A low monthly data cap
can prevent subscribers from using applications requiring high
bandwidth, including, for example, video streaming and remote education
applications. The Commission disagrees with WISPA that the collection
of data cap information will be overly burdensome to small providers.
Providers will already be required to display data cap information
under the Broadband Labels Order and frequently provide prospective
customers with such information at the point of sale and on their
public facing websites. Accordingly, the Commission adopts the proposal
to collect information on service plan data caps.
44. There were no objections in the record to the Commission
proposals to collect information on the number of subscribers who have
reached their monthly data cap and the average amounts by which
subscribers have exceeded their cap, and the Commission adopts those
proposals herein. These are necessary pieces of information that will
allow the Commission to contextualize the price information obtained
through this collection and are also consistent with the requirement in
the Infrastructure Act to collect ``data relating to price and
subscription rate information.''
45. In addition, the Commission finds that collecting information
on the charges to subscribers to obtain additional data once the cap
has been exceeded is necessary to obtain an accurate view of the month-
to-month cost ACP subscribers are paying. Accordingly, this additional
information about the average overage amount for subscribers on an
annual basis will allow the Commission to determine value that
subscribers are obtaining from the affordable connectivity benefit, and
whether the federal subsidy is covering data cap overage fees or is
otherwise helping reduce the digital divide. The Commission therefore
requires providers to submit for each plan with at least one
subscriber, aggregated at the ZIP code level: the data cap (including
de-prioritization and throttling), the number of subscribers who have
exceeded the data cap in the previous month, the average amount by
which subscribers have exceeded their cap in the previous month as part
of the annual aggregate collection of plan characteristic information,
and any charges for additional data usages along with the relevant
increment (e.g., 1 GB, 500 MB). Providers will be required to report
the number of subscribers exceeding the data cap, the average amount by
which subscribers exceeded the cap, and the average overage amount paid
for the month prior to the snapshot date.
46. In the ACP Data Collection Notice, the Commission proposes to
define data cap to include data usage restrictions on both pre-paid and
post-paid plans, and adopts this proposal. In so doing, the Commission
rejects NaLA's argument that the Commission instead shall define a data
cap as the ``ultimate level of data usage above which the subscriber
has no data service.'' Both throttling (soft caps) and the termination
of service if a household exceeds the data allowance impact the ability
of consumers to use the service as intended. Furthermore, providers in
their advertising materials characterize throttling-based data caps as
``data allowances'' or ``data usage plans.'' To evaluate the value of
the affordable connectivity benefit for households, it is important to
consider the view of subscribers, and there is support for the
Commission finding that consumers view data termination, and throttling
and de-prioritization, effectively as a cap on their usage, which
impacts their use and enjoyment of the service. Accordingly, as part of
the ACP Transparency Data Collection the Commission will collect from
providers information on both data caps and data usage restrictions,
such as de-prioritization and throttling, consistent with the
definition provided in the ACP Data Collection Notice.
47. At the same time, the Commission declines to require providers
to submit connection reliability data. In the ACP Data Collection
Notice, the Commission asks whether it should collect additional plan
characteristics beyond those related to speed, bundles, and data caps.
Some commenters propose that the Commission requires providers to
submit information on connection reliability to ``help ensure that
public money obtains the intended services.'' The Commission recognizes
that determining and reporting these data for purposes of the ACP
Transparency Data Collection could be unduly burdensome and could
require providers to undergo a highly technical determination to be
able to produce these data. Although the Commission finds that the
reliability of a broadband service is a key characteristic in
determining the value of the ACP-supported service and this metric
would help to evaluate whether low-income consumers are receiving the
reliable service they deserve through the Affordable Connectivity
Program, requiring providers to collect and report reliability data
through this collection would be an overly burdensome undertaking,
particularly for small providers, and would be difficult to implement
at the aggregate level.
48. Bundle Characteristics. In the ACP Data Collection Notice, the
Commission seeks comments on whether to collect information on the
characteristics of bundled service offerings (e.g., ``triple-play''
bundles, unlimited voice/text/data plans), including information about
the channels offered on bundled video services. A number of commenters
supported the collection of bundle characteristics. Others opposed the
collection of bundle characteristics, arguing that the Commission lacks
the authority to collect bundle characteristics or that such a
collection would be burdensome and without value to the Commission. As
mentioned, the Commission interprets the Infrastructure Act to permit
the Commission to collect plan characteristic information, including
bundle characteristics. The fact that the Infrastructure Act refers to
a ``broadband transparency'' collection is not determinative in our
view, as the Infrastructure Act also directs the Commission to collect
``data relating to price and subscription rate information.'' The
Commission acknowledges comments describing the burdens on providers,
but finds that identifying whether a service is bundled, and the type
of services that are bundled together, is essential for providing
context for the service plan information the Commission receives
through the ACP Transparency Data Collection. Understanding that
households are applying their affordable connectivity benefit to a plan
that includes bundled voice and/or video service tells the Commission
about the services offered by a provider and how ACP households are
taking advantage of the benefit. The affordable connectivity benefit
can be applied to the voice and text portions of a bundled service
plan, and such information is therefore
[[Page 2257]]
essential to determining the value the affordable connectivity benefit
provides enrolled households. Therefore, the Commission requires
providers to identify whether a service is bundled and the type of the
bundle (e.g., voice, video), and to submit voice or text characteristic
information for bundled service offerings, including those services
included with mobile broadband. Specifically, the Commission requires
providers to submit as part of the annual collection of plan
characteristic information the total number of voice minutes and the
total number of text messages allotted on a monthly basis, or whether a
voice or text offering includes unlimited minutes or text messages.
49. Legacy Service Plans. In the ACP Data Collection Notice the
Commission proposes collecting information, including price and plan
characteristic information, from all ACP participating providers, which
would include legacy service plans. Altice argues that ``grandfathered
plans and other plans that are no longer offered, should not be
considered `internet service offerings' for purposes of this data
collection because they are not offered to `prospective ACP
subscribers.' '' The Commission disagrees with this argument, as the
Infrastructure Act is clear that the Commission must collect
information related to the price and subscription rates of ``each
internet service offering of a participating provider . . . to which an
eligible household subscribes,'' and this language clearly does not
exclude grandfathered or legacy plans. The Commission acknowledges
however, that there are special circumstances surrounding legacy
offerings that merit differential treatment, including lower numbers of
subscribers, the fact that they are no longer currently marketed, and
the burdens associated with collecting certain information. Therefore,
the Commission will not require providers to submit information
concerning typical speed or latency. The Commission will also not
require providers to submit information on the introductory monthly
charge, the length of the introductory period, if the monthly charge
requires a contract, the number of months of a contract (if
applicable), and the one-time fees required at purchase.
50. The Commission will, however, require providers to create and
submit unique plan identifiers for legacy service plans in a same or
similar format as those used in the broadband labels. Lumen and
USTelecom argue that the Commission shall not use the ACP Transparency
Data collection to impose a requirement to produce broadband labels on
grandfathered or legacy plans. The Commission clarifies that while
providers will need to submit many of the plan and pricing
characteristics contained in the labels, they will not be required to
create or display a broadband label that the Broadband Labels Order
would not otherwise require.
51. Affordable Connectivity Program Performance Metrics. In the ACP
Data Collection Notice the Commission proposes to use information in
the ACP Transparency Data Collection for the evaluation of the
performance of the ACP in achieving the goals set in the ACP Order and
sought comment on the performance metrics the Commission shall collect
to measure the performance of the ACP. The goals the Commission
establishes for the ACP are to (1) reduce the digital divide for low-
income consumers; (2) promote awareness and participation in the ACP;
and (3) ensure efficient and effective administration of the ACP. For
each of these goals, the Commission establishes performance metrics and
methods to measure progress.
52. The information collected through the ACP Transparency Data
Collection will help the Commission to evaluate the efficacy of the
ACP, and to determine the value that ACP enrolled households are
obtaining from their benefit. Data on the price and characteristics of
plans with ACP enrolled households will help the Commission understand
the value that ACP enrolled households are obtaining from the federal
subsidy, including which plan characteristics are covered by the
benefit, and whether the plans being subsidized are of adequate quality
to engage in telework, telehealth, or remote education.
53. Digital Divide Metrics. In the ACP Data Collection Notice, the
Commission ask whether it shall, through the ACP Transparency Data
Collection, collect information about whether a subscriber is a first-
time subscriber to the provider or a first-time subscriber for fixed or
mobile broadband, or whether a household was subscribing to multiple
broadband services. In the ACP Order, the Commission finds that
understanding broadband adoption by first-time subscribers would help
measure the Commission's progress toward its first goal of narrowing
the digital divide for low-income consumers. Commenters opposed the
collection of these metrics as part of the ACP Transparency Data
Collection, arguing that providers do not collect this information as a
matter of course, and that it would be a substantial burden to submit
this information. The Commission still recognizes the utility of such
information in permitting non-profit organizations, local and state
governments, and the Commission to more effectively target ACP outreach
efforts to underserved households and to fulfill the requirements to
collect data necessary for determining the program's progress toward
the goal of narrowing the digital divide. But the Commission also finds
that the ACP Transparency Data Collection might not be the best vehicle
for collecting information about first-time users as it could require
providers to survey or otherwise assess and report on broadband
services the household is receiving beyond those supported by the
affordable connectivity benefit. Therefore, although the Commission
declines to require the production of such information as part of the
ACP Transparency Data Collection at this time, the Commission seeks
further comment on how to collect digital divide data in the FNPRM. The
Commission also, as discussed, requires providers to submit
performance- and equity-related data on the number of ACP subscribers
enrolled in Lifeline and ACP subscribers who receive the ACP Tribal or
high-cost enhanced benefits. The Commission also reiterates its
direction to Commission staff to consider other ways to collect
information to determine progress toward the goal of narrowing the
digital divide, such as broadband adoption rates for first-time
subscribers, and increases in enrollments in areas with low broadband
penetration rates. More specifically, the Commission directs the
Bureau, with support from OEA, the Consumer and Governmental Affairs
Bureau (CGB), and USAC, to explore possible approaches proposed by
commenters, such as statistical sampling, or industry or consumer
surveys, to collect information about the extent to which ACP
subscribers are first-time broadband subscribers, first-time fixed
broadband subscribers or are subscribing to multiple broadband
services.
54. Additional Performance Metrics. In the ACP Data Collection
Notice, the Commission asks what other data should collect to measure
effectiveness in increasing awareness and participation or the
administrative efficacy of the ACP. Public Knowledge and Common Sense
jointly suggest that the Commission collects information on the ACP
enrollment process, connected device offerings, and availability of
low-income plans. The City of New York and the Connecticut State
Broadband Office propose that the Commission
[[Page 2258]]
collects information on the availability and performance of service
plans. Providers object to proposals to collect information on
providers' enrollment processes, connected device offerings, or plan
availability and performance. With consideration of the weight of the
record, and the administrative and technical difficulties associated
with the collection of information related to awareness of and
participation in the Affordable Connectivity Program and the efficient
and effective administration of the program, the Commission declines at
this time to require providers to submit information on the enrollment
process, connected device offerings, plan availability or performance.
However, the Commission recognizes the value of information concerning
the ACP enrollment process, and seek further comment on collecting data
on the enrollment process, connected device offerings, and the
availability of low-income plans, and any burdens on providers or
subscribers associated with collecting such information. The Commission
also directs the Bureau, with support from OEA and USAC, to explore
collecting information regarding ACP enrollment through surveys of ACP
participating providers, subscribers, and other stakeholders.
Additionally, USAC has recently addressed some of these requests
through updates to the Companies Near Me tool. The updated tool now
shows which providers offer devices and which providers have indicated
to USAC they offer plans fully covered by the standard affordable
connectivity benefit. Moreover, as described above, the Commission is
collecting information on the number of ACP subscribers who pay $0
after application of the discounts and the ACP benefit.
55. Subscriber Privacy. In the ACP Data Collection Notice, the
Commission requests that commenters identify any privacy concerns
associated with subscriber- and aggregate-level collections of price,
subscription rate, and plan characteristic information. Commenters
focus on the privacy implications of a subscriber-level collection,
with several commenters arguing that collecting aggregated data avoids
privacy concerns that arise from collecting and processing information
about individual subscribers. The Commission finds that the collection
structure the Commission adopts in this Order, under which providers
will submit aggregated data, reduces subscriber privacy concerns as
compared to other collection options. Similarly, because the Commission
is not collecting as part of the ACP Transparency Data Collection
subscriber personally identifiable information (PII) or records or
other information pertaining to a subscriber, this collection does not
implicate privacy statutes such as the Privacy Act of 1974, ECPA,
section 222 of the Communications Act of 1934, as amended, or the Cable
Act.
56. Additionally, privacy concerns associated with a subscriber-
level collection could potentially be mitigated by adhering to existing
safeguards or crafting new ones. For instance, the Commission and USAC
currently protect IT systems and resources, including databases
containing PII, with robust technical and physical measures, following
the standards and guidelines of the National Institute of Standards and
Technology (NIST) framework. The Commission also protects PII disclosed
to third parties through its use of Memorandums of Understanding and
Information Sharing Agreements. Additionally, privacy concerns related
to a subscriber-level data collection could be addressed by limiting
the amount of subscriber-level data collected to a few relevant
variables; modifying the applicable Systems of Records Notice (SORN),
Privacy Act Statement, and NLAD Access Agreement; and requiring
subscribers' consent to the collection of additional subscriber-level
data as part of the ACP Transparency Data Collection. The Commission
seeks additional comment on subscriber consent in the FNPRM.
57. Timing of Collection, Inaugural Collection. Although the
Infrastructure Act requires the Commission to issue final data
collection rules by November 15, 2022, it does not specify when the
inaugural or subsequent data collections should occur, leaving the
matter largely one of agency discretion. For the inaugural collection,
there must be adequate time for the agency to receive appropriate
administrative review and build the collection system and for providers
to review the collection requirements and rules, adapt their processes
and systems to compile accurate data, and then to submit the data. The
Commission therefore delegates to staff responsibility to set an annual
date by which all ACP providers must submit required data as well as
establish a reference or ``snapshot'' date for the data submitted by
the providers.
58. Data Submission Date. The record regarding the inaugural
collection reflects a concern that providers, especially smaller
providers, have adequate time to comply. ACA Connects suggests that an
aggregate, annual collection could commence soon after the Commission
receives OMB approval but also argues that collecting the data could
``easily consume'' six months and that OMB approval could take six
months or longer. It further asserts that the Commission should take
``special care to ensure that smaller providers with more limited
resources have ample time to implement the collection.'' The Commission
shares the view that providers need adequate time to implement the
collection, both to prevent undue provider burden and to ensure that
the Commission receives quality data. The Commission therefore
delegates to the Bureau the authority to establish a reasonable data
submission date for the inaugural collection, which will be no earlier
than ninety (90) days after the Commission announces that OMB has
completed any review that the Bureau determines is required under the
Paperwork Reduction Act. The Commission directs the Bureau to take into
account other ACP deadlines or significant dates when setting the data
submission date so as to minimize burdens on providers.
59. The inaugural data submission date will likely occur before
providers will be required to display broadband labels, and providers
will be required to submit ACP Transparency Data Collection data to the
Commission separately from the labels, despite the overlap between the
information to be collected under the Order and that to be displayed on
the labels. The Commission finds that it is appropriate to collect data
before the initial publication of, and separately from the broadband
labels because the Infrastructure Act includes language suggesting that
Congress intended a rapid collection of data. Further, given the
potential value of ACP Transparency Data Collection data to evaluating
the utility of the Affordable Connectivity Program and progress toward
reducing the digital divide, this data should be collected as soon as
is feasible. Initiating the collection before the initial
implementation of the broadband labels requirement may also allow the
Commission to publish information that could be useful for participants
in newly established ACP outreach efforts such as the Outreach Grant
Program or Your Home, Your internet pilot program.
60. Rule Revisions. A relatively rapid data collection is suggested
by section 60502(c)(2) of the Infrastructure Act, which states that
``[n]ot later than 180 days after the date on which rules are issued .
. . the Commission shall revise the rules to verify the accuracy of the
data submitted pursuant to the rules.'' The ACP Data Collection Notice
sought
[[Page 2259]]
comment on how to interpret this provision, and the only commenters to
address the issue contend that section 60502(c)(2) of the
Infrastructure Act does not require the Commission to begin the data
collection within 180 days of the issuance of final data collection
rules. ACA Connects maintains that the Infrastructure Act does not
indirectly specify a timeframe for the commencement of the inaugural
collection by requiring the Commission to revise its rules within 180
days. According to ACA Connects, the requirement that the Commission
``revise its rules to verify the accuracy of the data submitted
pursuant to the rules'' does not mean that the Commission must collect
data prior to revising the rules: ``[i]nstead, the Commission can adopt
measures that will improve its ability to `verify' the accuracy of data
that is submitted in the future.'' ACA Connects also asserts that to
read the Infrastructure Act otherwise would result in a futile exercise
because it is ``simply unrealistic to believe the Commission could not
only complete a data collection, but also complete a rulemaking to
`verify the accuracy' of the data collected'' in 180 days.
61. The Commission believes there may be merit in ACA Connects'
interpretation of section 60502(c)(2) of the (what act), under which
the statute would not require the Commission to collect data through
the ACP Transparency Data Collection before revising its rules within
the 180-day timeframe. The Commission thus seeks comment in the FNPRM
on how the Commission can improve the rules set forth in the Order,
including how to verify the accuracy of provider data. The Commission
also delegates authority to the Bureau to issue a supplemental notice,
if necessary, to enhance the record and to propose revised data
collection rules in accordance with the 180-day timeframe.
62. Data Reported as of Snapshot Date. In addition to directing the
Bureau to establish an annual data submission date, the Commission
delegates to the Bureau the authority to establish a reasonable annual
snapshot date or reference date for the submission of certain data. The
ACP Data Collection Notice sought comment on the ``filing window'' for
the collection and asked whether the Commission shall ``require
providers to submit data for subscribers enrolled as of a particular
date.'' Commenters generally support submitting data based on, or
current as of, a snapshot date. The Commission agrees that submitting
data as of a snapshot date is appropriate, and requires providers to do
so. The Commission directs the Bureau to establish a snapshot date that
is no less than sixty (60) days prior to the data submission date. In
other words, there must be at least sixty days between the snapshot
date and the data submission date.
63. Subsequent Collections. As for collections subsequent to the
inaugural collection, there was little comment other than support for
an annual collection based on a snapshot date. The Commission directs
the Bureau to issue a Public Notice each year reminding providers of
the snapshot date and data submission date. The snapshot date and data
submission date should account for other ACP deadlines or significant
dates to minimize burdens on the Commission, USAC, and providers.
64. ACP Wind-Down Considerations. In the ACP Order, the Commission
delegates authority to the staff to establish procedures for the wind-
down of the Affordable Connectivity Program. In addition to the
delegations and directions in the ACP Order, the Commission directs
Commission staff to account for the ACP Transparency Data Collection in
the wind-down procedures. Staff may, if appropriate, revise collection
procedures or waive rules to avoid collection activities that may be
unnecessary or lack utility due to the forecasted end of the Affordable
Connectivity Program.
65. Publication of Data. The Infrastructure Act not only requires
the Commission to collect data relating to price and subscription rates
but also directs the Commission to ``make data relating to broadband
internet access service collected . . . available to the public in a
commonly used electronic format without risking the disclosure of
personally identifiable information or proprietary information.'' The
ACP Data Collection Notice sought comment on what data should be made
public, how privacy and provider interests can be protected, and the
format, method, and timing of publication. Based on the record, at a
minimum, the Commission makes publicly available, aggregated at the
state level, non-provider-specific data on the average or median prices
of plans in which ACP subscribers are enrolled within designated
download speed tiers and data on the number of subscribers of plans
within those tiers. The Commission directs OEA and USAC to make these
data available in a downloadable format (e.g., Comma Separated Values
file) not more than six months after the submission date set forth by
the Bureau in a Public Notice. Making data available in this fashion
will provide greater transparency into broadband services provided by
ACP participating providers while protecting personally identifiable
information and proprietary information. As further discussed, the
Commission also finds that it would be valuable to publish data at the
ZIP code level after the initial publication of state-level
information, provided that it is done in a manner that protects
subscriber information and does not result in the publication, directly
or indirectly, of provider-specific information.
66. Publishing Data While Protecting Against the Disclosure of
Personally Identifiable Information or Proprietary Information,
Defining Personally Identifiable Information (PII). The Infrastructure
Act requires the Commission to make data available to the public
``without risking the disclosure of personally information or
proprietary information'' and further directs the Commission to define
``personally identifiable information'' (PII) via notice and comment
rulemaking. Accordingly, the Commission seeks comments on how it shall
define the term, and adopt here the definition of PII used by OMB in,
among other authorities, OMB Circular A-130 and OMB M-17-12:
``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.'' The Commission finds
that this definition is consistent with the approaches suggested in the
record. Further, although the ACP Transparency Data Collection does not
currently contemplate the collection of subscriber-level data, the
Commission finds that this definition is flexible enough to ensure the
protection of subscriber privacy if a subscriber-level component is
made part of the collection in the future.
67. Three commenters propose definitions of ``personally
identifiable information'' for purposes of the ACP Transparency Data
Collection. The Connecticut State Broadband Office recommends the
Commission uses the definition of ``personally identifiable
information'' that the Commission adopted in 2016, supplemented by U.S.
Department of Labor restrictions on the publication of a consumer's
telephone number, race, and birth date. In 2016, the Commission defined
``personally identifiable information'' as ``any information that is
linked or reasonably linkable to an individual or device'' and further
stated that ``information is linked or reasonably linkable to an
individual or device if it can reasonably be used on its own, in
context, or in combination to identify an individual or device, or to
logically associate with
[[Page 2260]]
other information about a specific individual or device.'' The
Department of Labor guidance further specifies that gender, race, birth
date, and geographic indicator are data elements that could be used to
indirectly identify a person. The Connecticut State Broadband Office
asserts that this definition allows the Commission to refine or include
additional data elements as technology advances and more personal
information is available online.
68. The City of New York suggests considering the definition of
``identifying information'' in the New York City Administrative Code:
``any information obtained by or on behalf of the city that may be used
on its own or with other information to identify or locate an
individual.'' Similarly, Common Sense advocates adopting a definition
of ``personally identifiable information'' that is consistent with the
definition of ``personal information'' used in the California Consumer
Privacy Act. The Act defines ``personal information'' as ``information
that identifies, relates to, or describes, is reasonably capable of
being associated with, or could reasonably be linked, directly or
indirectly, with a particular consumer or household.''
69. These definitions are all consistent with OMB's definition of
``personally identifiable information,'' which the Commission cites in
the ACP Data Collection Notice and which the Commission adopts here to
comply with the Infrastructure Act. Moreover, this definition is broad
enough to promote subscriber trust that the Commission will not publish
information that could identify a specific subscriber.
70. Protecting PII in Published Reports. The Infrastructure Act not
only requires the Commission to define PII but also directs to publish
data collected without risking the disclosure of PII. The ACP Data
Collection Notice sought comment on ``how the Commission shall minimize
the risk that such information would be disclosed when making data
available to the public'' and proposed protecting PII by publishing
only aggregate-level data. The record strongly supports this proposal,
and the Commission adopts it. Moreover, publishing aggregate-level
data--regardless of whether the Commission collects aggregate-level
data, subscriber-level data, or a hybrid of the two--aligns with other
methods of protecting PII suggested in the record. The Connecticut
State Broadband Office, for instance, recommends not disclosing
sensitive subscriber information such as a subscriber's social security
number, household income, and participation in a government income
subsidy program. Publishing only aggregated data is consistent with
that recommendation.
71. Interpreting Proprietary Information. In addition to directing
the Commission to protect PII when publishing data, Congress directed
the Commission not to risk the disclosure of proprietary information
when making data available to the public. Because the Infrastructure
Act does not define ``proprietary information,'' the Commission seeks
comments on how to interpret the term. Consistent with Commission
practice and as further stated, the Commission directs Commission
staff, when making information available to the public, to make sure to
guard potentially proprietary and competitive information by not
disclosing information that could directly or indirectly identify a
specific provider.
72. As an initial matter, the record supports interpreting
``proprietary information'' in the section 60502(c)(4) context to mean
the proprietary information of providers, rather than the broad
universe of information protected by section 222(a) of the Act or
customer proprietary network information protected by section 222(c).
As for what ``proprietary information'' means in the context of the ACP
Transparency Data Collection, providers and those affiliated with them
tend to take a broad view. ACA Connects asserts that because the
Commission must avoid even ``risking'' the disclosure of proprietary
information, the Commission must err on the side of non-disclosure of
any information that might be deemed proprietary. According to ACA
Connects, the Commission should thus refrain from disclosing ``any
provider-specific data, including any data that can be linked to an
individual provider.'' More specifically, several commenters assert
that proprietary information covers competitively sensitive provider
information, which includes pricing data, subscription rates for
broadband service offerings, and ``the churn rate for the provider or
for a particular internet service plan offered by an ACP provider.''
If, as ACA Connects contends, the Commission discloses publicly this
competitively sensitive data--e.g., each provider's total number of ACP
subscribers in each area or each provider's number of ACP subscribers
enrolled at different speed tiers--it could chill providers from
participating in the Affordable Connectivity Program. ACA Connects also
asserts that publishing provider-specific information is not necessary
to deliver the transparency the Infrastructure Act requires.
73. Other commenters recommend a narrower interpretation of
proprietary information, albeit advocating a relatively broad general
definition. As for the latter, the Connecticut State Broadband Office
asserts that the Commission looks to the U.S. National Institute of
Standards and Technology's (NIST) definition of proprietary information
as well as section 0.457 of the Commission's rules. NIST defines
``proprietary information'' as
Material and information relating to or associated with a
company's products, business, or activities, including but not
limited to financial information; data or statements; trade secrets;
product research and development; existing and future product
designs and performance specifications; marketing plans or
techniques; schematics; client lists; computer programs; processes;
and know-how that has been clearly identified and properly marked by
the company as proprietary information, trade secrets, or company
confidential information. The information must have been developed
by the company and not be available to the Government or to the
public without restriction from another source.
As for section 0.457 of the Commission's rules, it makes certain
materials presumptively nonpublic and provides that a person may
request non-disclosure of ``materials contain[ing] trade secrets or
privileged or confidential commercial, financial or technical data''
under section 0.459 of the Commission's rules if the materials are not
presumptively nonpublic. Although citing those general definitions, the
Connecticut State Broadband office asserts that the Commission shall
only withhold confidential information from public view if disclosing
the information would impair its ability to obtain necessary
information in the future or if disclosing it would cause substantial
harm to the competitive position of the submitter of the information.
74. The Connecticut State Broadband Office further generally
advocates that the Commission makes ``provider data publicly
available'' and asserts that ``ACP elements such as price of plans,
plan descriptions, and device offers would not substantially harm the
government's ability to obtain future information or cause substantial
harm to a provider's competitive position.'' According to the
commenter, ``it is only right that the enormous subsidies provided to
ISPs through the affordable connectivity program be published and
analyzed.'' Similarly, the City of Seattle argues that all pricing
data, subscription rates, and service plan data should be publicly
released on a provider-specific basis.
[[Page 2261]]
75. Unlike in the case of PII, the Infrastructure Act does not
require the Commission to define ``proprietary information'' for
purposes of the ACP Transparency Data Collection, and the Commission
declines to do so because it is not necessary to issue a general
definition to ensure that provider interests are protected. The
Commission is also disinclined to find that all provider-specific data
about broadband prices and plan characteristics are necessarily
proprietary. For example, USTelecom in its comments has not established
that the price of a plan is proprietary, and the broadband labels will
include data on plan characteristics, including price.
76. Protecting Proprietary Information in Published Reports.
Consistent with Congress's directive to avoid risking the disclosure of
provider information, and consistent with past Commission practice, the
Commission protects provider proprietary and competitively sensitive
information by ensuring that any data published cannot be associated
directly or indirectly with a specific provider. To effectuate this
principle, the Commission directs Commission staff to: (a) publish data
aggregated at the state level and only publish data at lower levels of
geographic aggregation if doing so sufficiently protects provider
identity; (b) publish average or median prices; and (c) publish such
data by speed tiers. The Commission is persuaded, however, that the
Infrastructure Act militates against the publication of plan-related
subscribership data that could be linked to a particular provider, and
the Commission clarifies that it does not intend to release as part of
the ACP Transparency Data Collection provider-specific data, consistent
with its practice not to publish broadband-related data specific to
providers in the internet Access Services Reports. ACA Connects, NCTA,
and USTelecom state without rebuttal that the number of ACP subscribers
that subscribe to a particular plan is competitively sensitive.
Although the Commission declines to find that a provider's subscriber
numbers are proprietary information in this context, the Commission has
protected similar competitively sensitive provider information in other
contexts.
77. As with protecting PII, one way to protect provider proprietary
information is to publish aggregated data, and doing so is supported by
the record. ACA Connects further suggests protecting proprietary
provider information by ``disclos[ing] averages or median prices for
all ACP-subsidized services within various speed ranges, rather than
provider-by-provider disclosure'' because ``[e]ven anonymized provider-
level disclosures (e.g., `Provider A' v. `Provider B') may be traceable
to a specific provider based on their offering of unique speeds or
pricing plans and should thus be avoided.'' WISPA suggests a similar
approach, albeit for the collection of data rather than its
publication, and recommends ``allow[ing] participating providers to
report subscription rates by tier with price ranges for each of the
provider's geographic locations.'' The Commission finds merit in ACA
Connects' proposal, under which it publishes average or median prices
for all plans based on download speed tiers rather than by provider.
This would sufficiently protect provider information while providing
meaningful data to the public, and the Commission directs OEA, in
coordination with WCB and USAC, to publish non-provider-specific
aggregated average or median price data by download speed tier.
78. Geographical Aggregation Level. Although commenters
overwhelmingly support publishing aggregated data to protect PII and
proprietary information, there were marked disagreements about what
level of aggregation was appropriate. Several commenters, all provider-
affiliated, argue that aggregated data should be published at the state
level because publishing more granular data risks disclosing PII or
proprietary information ``by making it possible to link `price' and
`subscription rate' data to a specific provider'' or because ACP
participating providers currently provide data to USAC and the
Commission at the State or Study Area Code level. Other commenters
advocate for publication at the ZIP code or county level because it is
more useful to the public and it is how aggregated ACP data are
currently made available by USAC. As explained by the Connecticut State
Broadband Office, providing ZIP code level data to the public ``makes
it easier for state governments and providers to identify the areas in
need of broadband assistance.'' And some commenters recommend that ACP
Transparency Data Collection data be published at a smaller-than-ZIP-
code level, such as by Census tract, neighborhood, or individual
blocks.
79. The Commission finds that publication of aggregated data at the
state level is supported by the record and will protect both subscriber
and provider information. The Commission thus directs OEA, in
coordination with WCB and USAC, to make aggregated data available to
the public at the state level. Further, because the public may find
more granular data more useful, and because providers will be required
to submit data aggregated by ZIP code, the Commission directs OEA, in
consultation with WCB, OGC, and USAC to publish data by ZIP code, but
only if doing so will not directly or indirectly disclose subscriber
PII or result in the publication of provider-specific data. The
Commission notes that publication of data at more granular levels than
ZIP code could be an option were the Commission collects ACP data at
lower levels of aggregation or on a subscriber basis in the future. But
regardless of the level at which data is collected, any publication of
data must not be specific to any provider even if that requires
aggregation of data at levels higher than that at which it is
collected.
80. 47 CFR 0.459. The Infrastructure Act states that Commission
protection of PII and proprietary information must be consistent with
section 0.459 of the Commission's rules. Section 0.459 provides
procedures for requesting that information submitted to the Commission
be withheld from public inspection. For instance, if a person submits
materials to the Commission but wants the materials withheld from
public inspection on the grounds that they contain trade secrets or
privileged or confidential commercial, financial, or technical data,
and the materials do not fall within the list of presumptively
nonpublic materials in section 0.457(d)(1) of the Commission's rules,
the person must submit a request for non-disclosure under section
0.459. Unless the Commission provides abbreviated means for requesting
confidential treatment, a request under section 0.459(a) must contain a
statement of the reasons for withholding the materials from public
inspection, including an ``explanation of the degree to which the
information is commercial or financial or contains a trade secret or is
privileged'' and an ``explanation of how disclosure of the information
could result in substantial competitive harm.'' The Commission seeks
comments on how section 0.459 could be incorporated into its processes
for publishing information collected through the ACP Transparency Data
Collection.
81. The Connecticut State Broadband Office and NaLA assert that the
Commission shall follow its normal procedures--provider information is
either presumptively withheld because it falls within a category of
section 0.457 or the provider must request non-disclosure under section
0.459. In contrast, ACA Connects argues that the Commission shall not
require providers to submit individual requests under
[[Page 2262]]
section 0.459 but should instead, in the interest of expediency, add
``any proprietary information received via the ACP Transparency Data
Collection'' to the list of materials presumptively withheld from
routine public disclosure in section 0.457. Additionally, a few
commenters propose that if section 0.459 submissions are required,
providers should be able to request non-disclosure by checking a box
when submitting data.
82. The Commission agrees with commenters that competitively
sensitive information might be proprietary and that providers might
want to keep such information confidential. Because the Commission is
already refraining from making publicly available any data at the
provider level by publishing only aggregated, non-provider-specific
data, the Commission does not find it necessary for providers to seek
protection of competitively sensitive or proprietary information the
Commission has already committed to not make publicly available. The
Commission will therefore treat such information as presumptively
confidential pursuant to section 0.457(d) of the Commission's rules.
83. Scope of Data to be Made Public. As for what aggregated, non-
provider-specific data the Commission shall make available to the
public, its direct OEA, in coordination with WCB, OGC, and USAC to
publish as much data as possible consistent with privacy
considerations. At a minimum, OEA and USAC must publish aggregated non-
provider-specific data on average or median prices of plans within
download speed tiers and data on the total number of ACP subscribers
within those tiers, on a state level basis. The Commission further
direct OEA, in coordination with WCB, OGC, to the extent necessary to
protect PII, and USAC, to publish data on legacy plans--plans which
have ACP subscribers but are no longer available to the general
public--while minimizing the risk of consumer confusion about the
availability of those plans. While it is appropriate to publish data on
legacy plans because ACP subscribers are enrolled in them, doing so
might require a separate dataset or different variables given that
legacy plans are not available to new subscribers.
84. The Commission seeks comments on whether the Commission shall
publish only price and subscription rate data, or whether the
Commission shall also make publicly available other data proposed to be
collected, such as plan characteristics or program-performance data, or
data obtained outside the ACP Transparency Data Collection, such as
data about the availability of plans fully covered by the affordable
connectivity benefit. State and local government commenters urge the
Commission to publish all data collected, except for PII. The
Connecticut State Broadband Office urges the Commission to publish
descriptions of all ACP plans, including whether a device is offered,
and data on the performance of those plans. It asserts that these
``additional variables'' help state and local governments understand
``affordability issues in their jurisdiction'' and ``promote
transparency in the services ISPs are providing with the benefit of
government subsidies and their prices for comparison with unsubsidized
services.'' Similarly, the City of New York urges the Commission to
collect and publish price, plan, and performance features and
``anticipates that the publication of ACP transparency data will
meaningfully enable the City to further inform emerging broadband maps
used for policy, service deployments, and adoption investments.''
85. Other commenters agree that all collected data should be
published, though they differ somewhat on what should be collected in
the first place. Common Sense, for instance, asserts that the
Commission shall publish all ACP data collected, which would include
information on ``plan prices, subscription rates, plan characteristics,
and performance metrics.'' NaLA likewise advocates publishing all
collected and analyzed data, but contends that the Commission shall
limit the data collection to price and subscription rate data.
Nevertheless, NaLA states that ``[i]f the Commission decides to collect
data beyond the price and subscription rate data required by the
Infrastructure Act,'' it should make such data and related analyses
available to the public.
86. As set forth, the Commission will be collecting data on the
prices of plans in which ACP subscribers are enrolled, subscription
rates of such plans, and characteristics of those plans. The Commission
recognizes that these data not only are valuable for the Commission but
could be of significant value to state and local governments, consumer
groups, and other stakeholders even when aggregated and disassociated
from specific providers to protect PII and competitively sensitive or
proprietary information. The Commission will therefore publish as much
data as possible, consistent with privacy considerations. Consequently,
the Commission directs OEA, in coordination with WCB, OGC, and USAC to
publish as much data as possible consistent with privacy
considerations.
87. How Data Will Be Made Publicly Available, Format and Method of
Publication. The Infrastructure Act requires the Commission to make
data available to the public in a ``commonly used electronic format''
but does not define the term. In light of the record and current
Commission practice, the Commission directs OEA and USAC to make data
available to the public in a downloadable format, such as a Comma
Separated Values file, on the Commission's or USAC's website. As noted
in the ACP Data Collection Notice, the Commission already make datasets
available for viewing in Open Data portals and provide downloadable
data in several formats, and commenters generally support ``easy to
use'' and ``standardized'' formats. As for the method of publication,
the only commenter on this topic suggested that the Commission host the
public data, and the Commission directs that this information be made
available on the Commission's or USAC's website.
88. Timing of Publication. As for when the Commission makes data
publicly available, the ACP Data Collection Notice noted that the only
direction in the Infrastructure Act is that the Commission must define
the term ``personally identifiable information'' through notice and
comment rulemaking before making any data available to the public. The
Commission proposes making data public at least annually and asked
several timing related questions, such as whether data should be
published on an annual basis or more frequently and how long after
collection should the Commission publish data.
89. The record is sparse on these issues. WISPA recommends
publishing information ``on an annual basis during a specified window
of time each year to ensure (1) consistency for comparison purposes,
(2) sufficiently current information, and (3) a process that is not
overly burdensome for providers, the Commission, or USAC.'' In
contrast, Common Sense asserts that the Commission ``shall publish
updated ACP data at regular intervals, as frequently as feasibly
possible.'' NaLA does not suggest a particular timeframe in which to
make data publicly available but emphasizes the importance of data
being disclosed ``in a timely manner so that it is useful for
determining the effectiveness of the ACP in meeting its goals as well
as for enabling low-income consumers to gain insight into the ACP
services available to them.''
[[Page 2263]]
90. The Commission finds that making data publicly available on an
annual basis aligns with the structure of the data collection, is
sufficient to provide greater transparency into broadband services
provided by ACP participating providers, and minimizes the burdens of
publication on providers and the Commission. Under the collection
structure the Commission adopts here, data will be collected annually
based on a snapshot date. Making data available publicly annually is
consistent with that structure. The Commission further finds that data
should be published no later than six months after the data submission
date to give WCB, OEA, OGC, and USAC sufficient time to prepare the
data for publication, including ensuring that no PII or competitively
sensitive or proprietary information will be exposed.
91. Guidance. The Infrastructure Act 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, projects, or activities are
completed in a timely and effective manner,'' and the ACP Data
Collection Notice sought comment on this provision. Commenters agreed
that the Commission should provide support and guidance on data
collection through webinars, technical instructions, form instructions,
and frequently asked questions. The Commission therefore directs the
Bureau, OEA, and USAC to develop provider education and training
materials to assist with the ACP Transparency Data Collection rules set
forth in this Order and associated processes.
92. Enforcement. In the ACP Data Collection Notice, the Commission
seeks comments on issues relating to the enforcement of the annual data
collection rules, including the base forfeiture amount for
noncompliance, certification requirements, involuntary removal, and
submission deadlines.
93. Base Forfeiture. In the Notice the Commission proposes to
establish a base forfeiture amount proportionate to the level of data
ultimately adopted in the proceeding, either on a per-subscriber or on
a higher level of aggregation (e.g., ZIP-code, state, SAC). For an
aggregate collection, the Commission proposes to establish a base
forfeiture amount of $50,000 per state or study area for which a
provider has failed to submit ACP Transparency Data Collection
information by the applicable deadline.
94. Commenters generally support establishing forfeiture amounts,
but some commenters suggest that the Commission adopts a base
forfeiture amount proportionate to the number of a providers' ACP
subscribers, to avoid chilling small provider participation in the
program. Starry argues that ``disproportionate penalties'' might deter
provider participation in the Affordable Connectivity Program. Altice
suggests that instead of applying additional penalties for missing
submissions dated from the submission deadline, that the Commission
instead permit a 30-day grace period for providers to come into
compliance with the ACP Transparency Data Collection rules. Altice
further suggests that the Commission adopts as the base forfeiture
amount the $100 per month penalty imposed on providers associated with
the failure to file form 499-A, arguing that there is ``little
justification for adopting a fine or forfeiture amount for ACP
transparency data reporting that is higher than the $100 per month fine
for failing to file a Form 499-A.'' Lastly, Altice suggests that
instead of instituting a forfeiture amount, the Commission could
publish a list of non-compliant providers, and publishing the list
would incentive providers to come into compliance to avoid public
embarrassment and reputational damages.
95. With consideration of the record and in light of the Commission
decision to utilize an aggregate-level approach in this collection, the
Commission adopts a base forfeiture amount in line with an aggregate
collection. The Commission adopts a base forfeiture amount of the
lesser of $22,000 or the latest monthly claim amount, for each state
for which a provider has failed to submit complete information. The
Commission agrees with WISPA's comment that a base forfeiture amount
can be tied to the number of the provider's ACP subscribers to account
for differences in provider size, and using the latest monthly claim
amount makes that tie to subscribers. The Commission adopted approach
is consistent with both Commission precedent and its desire to ensure
compliance with the ACP Transparency Data Collection rules. Moreover,
it appears that Altice is confusing late fees that USAC applies to USF
accounts for late FCC Form 499 filings ($100), with forfeitures the
Commission issues in enforcement proceedings for late, missing, or
inaccurate FCC Form 499 filings ($50,000). In this proceeding, the
Commission seeks comment on forfeitures for rule violations, not late
fees assessed by USAC pursuant to Commission rule. The Commission
similarly declines to adopt Altice's alternative proposal of a
publicized list of non-compliant providers as the means of enforcement,
as the Commission finds the preceding approach better balances the
incentive to comply with concerns of providers. A ``naughty list''
would likely not adequately penalize or deter providers from failing to
submit the annual plan characteristics information required by this
Order and the Infrastructure Act.
96. Filing Deadlines. In the ACP Data Collection Notice, the
Commission proposes that providers be required to submit ACP
Transparency Data Collection information by a deadline, and that USAC
provide the Enforcement Bureau with a list of providers who have failed
to submit the required information by the deadline, identifying the
subscribers, state and study area, for which the data has not been
properly filed. The Commission receives no comments concerning the
establishment of a deadline and the sharing of information between USAC
and the Enforcement Bureau, and the Commission adopts both proposals.
The Commission also asks whether it should impose additional fines each
day in addition to the base forfeiture amount that a provider is not in
compliance with the ACP Transparency Data Collection rules under
section 503(b)(2) of the Act. The Commission did not receive any
comments concerning additional daily fines, and declines to adopt any.
97. Certification. The Commission receives no comments opposing its
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. Consistent
with the Commission rule requiring annual certification for
participating providers to be completed by the ``officer of the
participating provider who oversees Affordable Connectivity Program
business activities,'' the Commission adopts this proposal. The
Commission directs the Bureau, as part of the electronic process to
submit data, to include a process for certifications as to the accuracy
of the data and information provided for the data.
98. Involuntary Removal. In the ACP Data Collection Notice the
Commission asks whether a failure to comply with the rules established
in this data collection could subject a provider to the involuntary
removal process the Commission establishes in the ACP Order. Starry
suggests that providers that utilize the safe-harbor provisions of the
Consolidated Appropriations Act or
[[Page 2264]]
engage in ``minor infractions'' not be subject to involuntary removal
from the Affordable Connectivity Program. The Commission declines to
carve-out violations of the ACP Transparency Data Collection rules from
the ACP's involuntary removal process. In the ACP Order, the Commission
adopts the application of the safe-harbor provision of the
Infrastructure Act, which provides that the Commission could not
enforce a violation of the Act using sections 501, 502, or 503 or any
rules promulgated under those sections if a participating provider
demonstrates that it relied in good faith on information provided to
such a provider to make any verifications required by the statute. The
Commission clarifies that the safe harbor provided by the
Infrastructure Act is only applicable to eligibility determinations, as
the statute plainly provides. The Commission, therefore, declines to
adopt Starry's proposed application of the Safe Harbor.
99. Digital Equity and Inclusion. In the ACP Data Collection
Notice, the Commission seeks comment on how its proposals may promote
or inhibit advances in diversity, equity, inclusion, and accessibility,
as well as the scope of the Commission's legal authority. The City of
Seattle comments that detailed demographics ``are necessary to fully
understand the profile of populations served and where gaps may exist''
and encourages the Commission ``to develop alternative approaches to
collect demographic data and publish a demographic profile of ACP
subscribers by ZIP code.'' The City of Seattle suggests ``at minimum
collect data on whether companies are running credit checks on ACP
applicants, denials of enrollments, and whether the ISP is using a
third party for credit checks and if they are prohibited from releasing
credit and consumer information.'' Common Sense comments that
``relevant demographic data, including the enrollee's race, ethnicity,
income, languages spoken, and household size'' should be collected to
``understand the Affordable Connectivity Program's impact on digital
equity and support efforts to address digital discrimination.'' Common
Sense further suggests that the Commission shall collect information
about the enrollment process and provider customer service practices,
as well as information about ``providers' device offerings, including
the types of devices offered and the price options for each type of
device,'' and ``how many devices are distributed and at what price to
consumers.'' Commenters did not suggest that any of the Commission's
proposals inhibited digital equity and inclusion.
100. As discussed, the Commission adopts an aggregate-level
collection. While the additional subscriber-level demographic fields
proposed by commenters preceding may be helpful to analyze populations,
the Commission is unable to include them given the nature of its
collection approach, which does not accommodate the collection of any
subscriber-level data. The Commission further finds that the additional
data suggested by commenters, such as information on credit checks is
not inherently related to information regarding price and subscription
rates, and therefore decline at this time to include them for the ACP
Transparency Data Collection.
101. Conclusion. The ACP Transparency Data Collection the
Commission establishes today allows the Commission to collect
information related to the price and subscription rates of internet
service offerings of ACP providers consistent with the requirements of
the Infrastructure Act. The Commission establishes an aggregate-level
collection that will collect price, unique identifier, and plan
characteristics from each ACP provider for each plan that has a
household enrolled in the Affordable Connectivity Program, as well as
the number of households that are subscribed to each plan by ZIP code,
and the number of households that have reached a data cap, the average
amount by which the household has exceeded its data cap, and average
overage amount paid by households exceeding the data cap. The Bureau
will further set forth deadlines for inaugural and subsequent
collections of this information consistent with the Order.
102. The Commission further delegates authority to the Bureau to
make necessary adjustments to the ACP Transparency Data Collection and
to provide additional detail and specificity to the requirements of the
ACP Transparency Data Collection to conform with the intent of the
Order.
III. Severability
103. All of the rules that are adopted in the Order are designed to
work in unison to implement the ACP Transparency Data Collection. Each
separate ACP Transparency Data Collection rule the Commission adopts
here, however, serves a particular function in the implementation of
the ACP Transparency Data Collection. Therefore, it is the Commissions
intent that each of the rules adopted herein shall be severable. If any
of the rules is declared invalid or unenforceable for any reason, it is
the Commissions intent that the remaining rules shall remain in full
force and effect.
IV. Procedural Matters
104. Paperwork Reduction Act. This Fourth Report and Order may
contain new or modified information collection requirements subject to
the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. All such
new or modified information collection requirements will be submitted
to the Office of Management and Budget (OMB) for review under section
3507(d) of the PRA. OMB, the general public, and other Federal agencies
will be invited to comment on the revised information collection
requirements contained in this proceeding. In addition, the Commission
notes that pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, the Commission previously sought specific comment
on how it might further reduce the information collection burden on
small business concerns with fewer than 25 employees. The Commission
has described impacts that might affect small businesses in the FRFA.
Compliance with the information collection requirements will not be
required until OMB has completed any review that the Bureau determines
is required under the Paperwork Reduction Act.
105. Congressional Review Act. The Commission has determined, and
the Administrator of the Office of Information and Regulatory Affairs,
Office of Management and Budget concurs, that this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The
Commission will send a copy of the Fourth Report & Order, etc. to
Congress and the Government Accountability Office pursuant to 5 U.S.C.
801(a)(1)(A).
106. Final Regulatory Flexibility Analysis. As required by the
Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared a
Final Regulatory Flexibility Analysis (FRFA) relating to the Fourth
Report and Order.
107. Need for, and Objectives of, the Report and Order. In
Infrastructure Act, Congress established the 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
[[Page 2265]]
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 establishes
rules governing the affordable connectivity benefit and related matters
in the ACP Report and Order.
108. 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.''
109. The Order adopts 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 Commission establishes the ACP Transparency Data
Collection, a mandatory annual data collection of price, subscription
rate and plan characteristic information. The Commission collects plan
pricing, unique identifier and plan characteristic information at the
ZIP code level.
110. In executing the Commission obligations under the
Infrastructure Act establishes rules and requirements in the Order that
implement the relevant portions of the Infrastructure Act efficiently
and by balancing privacy interests of subscribers and minimizing
burdens on participating providers. This action is consistent with the
Commission ongoing effort to bridge the digital divide by ensuring that
low-income households have access to affordable, high-quality broadband
internet access service.
111. Summary of Significant Issues Raised by Public Comments in
Response to the IRFA. JSI filed reply comments asserting that
``requiring small providers to complete new NLAD data fields when
enrolling new subscribers and updating fields for households already
enrolled in the ACP would be highly burdensome.'' While the Commission
notes the concerns raised by JSI, the Commission believes that the
recordkeeping, reporting, and other compliance requirements adopted in
the Order strike a balance between providing small and other affected
entities flexibility in reporting data while allowing the Commission to
obtain the necessary information to meet its obligations under the
Infrastructure Act. The Commission discusses alternatives considered
but decline to adopt, that would have increased the costs and/or
burdens on small entities.
112. Response to Comments by the Chief Counsel for Advocacy of the
Small Business Administration. Pursuant to the Small Business Jobs Act
of 2010, which amended the RFA, the Commission is required to respond
to any comments filed by the Chief Counsel of the Small Business
Administration (SBA) and to provide a detailed statement of any change
made to the proposed rule(s) as a result of those comments.
113. The Chief Counsel did not file any comments in response to the
proposed rule(s) in this proceeding.
114. Description and Estimate of the Number of Small Entities to
Which These Rules Will Apply. 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).
115. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. The Commission 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.
116. 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.
117. 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 indicate 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.''
118. 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 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 show 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.
119. 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
[[Page 2266]]
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.
120. 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 show 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.
121. 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, FCC-20-188, 36 FCC
Rcd 2945, December 31, 2020, 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.
122. Description of Projected Reporting, Recordkeeping, and Other
Compliance Requirements for Small. The Commission expects the rules
adopted in the Order will impose new or additional reporting,
recordkeeping, and/or other compliance obligations on small entities.
Specifically, the Commission establishes new reporting and disclosure
requirements for ACP participating providers in order to comply with
the Infrastructure Investment and Jobs Act's (Infrastructure Act)
broadband transparency requirement, and to determine the value being
provided to eligible households by the ACP. The Commission requires
providers to submit unique identifiers, plan characteristic and plan
pricing information, and subscription rate information annually at the
ZIP code level.
123. The requirements the Commission adopts in the Order continue
the Commission's actions to comply with the Infrastructure Act and
develop better data to advance its statutory obligations and program
goals of closing the digital divide. The Commission concludes that it
is necessary to adopt these rules to obtain plan pricing and
characteristic information to allow the Commission to target outreach
efforts, and ensure that the Commission achieves the goals of the ACP
of reducing the digital divide, and increasing participation in and
awareness of the program. The Commission is aware of the need to ensure
that the benefits resulting from use of the data outweigh the reporting
burdens imposed on small entities. The Commission believes that any
additional burdens imposed by its reporting approach for providers are
outweighed by the significant benefit to be gained from more precise
data about ACP participating providers' service offerings. The
Commission is likewise cognizant that small entities will incur costs
and may have to hire attorneys, consultants, or other professionals to
comply with the Order. Although the Commission cannot quantify the cost
of compliance with the requirements in the Order, the Commission
believes the reporting and other requirements that the Commission has
adopted are necessary to comply with the Infrastructure Act, and in its
efforts in reducing the digital divide.
124. Steps Taken to Minimize the Significant Economic Impact on
Small Entities, and Significant Alternatives Considered. 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.''
125. The Commission has considered the comments in the record and
is mindful of the time, money, and resources that some small entities
may incur to comply with the requirements of this Order. In reaching
the requirements the Commission adopts in the Order, there were various
approaches and alternatives that the Commission consideres but rejected
which prevented small entities from incurring additional burdens and
economic impacts. For example, the Commission declines to collect data
on connection reliability, or plan coverage, although some comments
supported such a collection. The Commission also declines to adopt a
pure subscriber level collection, as proposed in the ACP Data
Collection Notice and supported by a number of commenters, out of a
concern for the burdens imposed on small entities. Instead, the
Commission adopts an aggregate level collection.
126. Another step taken by the Commission to minimize the
compliance burdens on small entities include guidance and support on
data collection through webinars, technical instructions, form
instructions, and frequently asked questions. In the Order the
Commission directs USAC to develop provider education and training
programs to reduce the compliance burden on providers in complying with
the requirements set forth in the Order.
127. Report to Congress. The Commission will send a copy of the
Fourth Report and Order, including this FRFA, in a report to be sent to
Congress pursuant to the Congressional Review Act. In addition, the
Commission will send a copy of the Fourth Report and Order, including
the FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the
Fourth Report and Order and FRFA (or summaries thereof) will also be
published in the Federal Register.
V. Ordering Clauses
128. Accordingly, it is ordered that, pursuant to the authority
contained in Section 904 of Division N, Title IX of the Consolidated
Appropriations Act,
[[Page 2267]]
2021, Public Law 116-260, 134 Stat. 1182, as amended by Infrastructure
Investment and Jobs Act, Public Law 117-58, 135 Stat. 429 (2021), this
Fourth Report and Order is adopted.
129. It is further ordered that the Fourth Report and Order shall
be effective February 13, 2023, except new 47 CFR 54.1813(b) through
(d) shall be effective upon announcement in the Federal Register of the
Office of Management and Budget approval of the information collection
requirements as required by the Paperwork Reduction Act.
List of Subjects in 47 CFR Part 54
Internet, Telecommunications, Telephone.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.
Final Rules
For the reasons set forth, part 54 of title 47 of the Code of
Federal Regulations is amended 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. Add Sec. 54.1813 to subpart R to read as follows:
Sec. 54.1813 Affordable Connectivity Program Transparency Data
Collection.
(a) Definitions. For purposes of the Affordable Connectivity
Program Transparency Data Collection:
Actual Speed. The term ``actual speed'' means the typical upload
and download speeds period for a particular speed tier, either based on
Measuring Broadband America (MBA) methodology, or other relevant
testing data.
Advertised Speed. The term ``advertised speed'' means the maximum
advertised upload and download speeds for fixed broadband plans, and
the minimum advertised upload and download speeds for mobile broadband
plans.
Base monthly price. The term ``base monthly price'' means the
monthly price for a broadband internet service offering that would be
paid by a household enrolled in the Affordable Connectivity Program,
absent the affordable connectivity benefit. The base monthly price does
not include the price of any recurring monthly fees (such as fees
providers impose at their discretion, or equipment rental fees),
government taxes or fees, or one-time charges (such as installation
charges, equipment purchase fee, etc.).
Bundle. The term ``bundle'' means a combination of broadband
internet access service with any non-broadband internet access service
offerings, including but not limited to video, voice, and text.
Data Cap. The term ``data cap'' means data usage restrictions on
both pre-paid and post-paid plans, including ``soft caps'' where a
user's internet traffic is throttled or deprioritized, and ``hard
caps'' where a user's access to the internet is discontinued.
Latency. The term ``latency'' means the length of time for a signal
to be sent between two defined end points and the time it takes for an
acknowledgement of the receipt of the signal to be received.
Legacy plan. The term ``legacy plan'' means an internet service
offering in which an ACP subscriber is enrolled that a participating
provider is not accepting new enrollment.
Personally identifiable information. The term ``personally
identifiable information'' means 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.
Plan. The term ``plan'' means ``internet service offering'' as
defined in Sec. 54.1800(n).
Unique identifier. The term ``unique identifier'' means a machine-
readable string of characters uniquely identifying a broadband plan,
not containing any special characters. Where a broadband plan is
associated with a broadband label under 47 CFR 8.1(a), the unique
identifier must be the same as that in the broadband label. Unique
identifiers cannot be reused or refer to multiple plans. A provider
must develop a new plan identifier, when a plan's components change.
(b) [Reserved]
(c) [Reserved]
(d) [Reserved]
(e) Publication of data--(1) Obligation to publish data. The
Commission will make aggregated, non-provider-specific data relating to
broadband internet access service information collected in paragraph
(b) of this section available to the public in a commonly used
electronic format without risking the disclosure of personally
identifiable information, as defined in paragraph (a)(8) of this
section, or proprietary information.
(2) Requests for withholding from public inspection. When
submitting information to the Commission under paragraph (c) of this
section, a participating provider may submit a request that information
be withheld from public inspection under Sec. 0.459 of this chapter.
(f) Enforcement. A violation of the collection requirement occurs
where a provider fails to submit ACP Transparency Data Collection
information by the compliance date for a state in which the provider
has ACP-enrolled subscribers. A base forfeiture amount for each state
is the lesser of $22,000 or the latest monthly claim amount, for each
state for which a provider has failed to submit complete information.
(g) Compliance. Paragraphs (b) through (d) of this section may
contain information collection and/or recordkeeping requirements.
Compliance with paragraphs (b) through (d) of this section will not be
required until this paragraph (g) of this section is removed or
contains a compliance date, which will not occur until after the Office
of Management and Budget completes review of such requirements pursuant
to the Paperwork Reduction Act or until after the Wireline Competition
Bureau determines that such review is not required. The Commission
directs the Wireline Competition Bureau to announce a compliance date
for paragraphs (b) through (d) of this section by subsequent Public
Notice and to cause this section to be revised accordingly.
0
3. Delayed indefinitely., amend Sec. 54.1813 by adding paragraphs (b)
through (d) to read as follows:
(b) Information to be collected. (1) For each plan that a household
enrolled in the Affordable Connectivity Program is subscribed to, all
participating providers shall submit, in an electronic format as
directed by the Commission at the ZIP code level, by the deadline
described in paragraph (c) of this section,
(i) The unique identifier with the following plan characteristics:
(A) Base monthly price,
(B) Whether the base monthly price is introductory, and if so, the
term of the introductory price and the post-introductory price,
(C) Itemized provider-imposed recurring monthly fees,
(D) Itemized one-time fees,
(E) Speed (actual and advertised speeds),
(F) Latency,
(G) Data caps (including de-prioritization and throttling), any
charges for additional data usages along with the relevant increment
(e.g., 1 GB, 500 MB),
(H) Whether the service is bundled, the high-level components of
the
[[Page 2268]]
bundle, and voice minutes or number of text messages included as part
of the bundle if applicable,
(I) Whether any associated equipment is required, whether any
required associated equipment is included in the advertised cost, and
the one-time fee or rental cost for required associated equipment;
(ii) The number of ACP households subscribed;
(iii) The number of ACP households that have reached a data cap
during month prior to the snapshot date;
(iv) The average amount by which ACP households have exceeded the
data cap for the month prior to the snapshot date;
(v) The average overage amount paid by ACP households exceeding a
data cap for the month prior to the snapshot date;
(vi) The number of ACP households receiving the ACP Tribal enhanced
benefit;
(vii) The number of ACP households receiving the ACP high-cost
enhanced benefit;
(viii) The number of ACP households who are also enrolled in
Lifeline for that plan;
(2) Legacy plans. For each legacy plan that a household enrolled in
the Affordable Connectivity Program is subscribed to, all participating
providers are required to submit all of the characteristics identified
in paragraph (b)(1) of this section except: speed (actual and
advertised), latency, introductory monthly charge, the length of the
introductory period, and any one-time fees.
(c) Timing of collection. No later than the compliance date to be
established by the Wireline Competition Bureau pursuant to paragraph
(g) of this section and annually thereafter, participating providers
must submit to the Commission the information in paragraph (b) of this
section for all plans in which an Affordable Connectivity Program
household is subscribed. The information must be current as of an
annual snapshot date established and announced by the Bureau.
(d) Certifications. As part of the data collection required by
paragraph (b) of the section, an officer of the participating provider
shall certify, under penalty of perjury, that:
(1) The officer is authorized to submit the data collection on
behalf of the participating provider; and
(2) The data and information provided in the data collection is
true, complete, and accurate to the best of the officer's knowledge,
information, and belief, and is based on information known to the
officer or provided to the officer by employees responsible for the
information being submitted.
[FR Doc. 2022-28435 Filed 1-12-23; 8:45 am]
BILLING CODE P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.