Proposed Rule2023-04751
In the Matter of Schools and Libraries Universal Support Mechanism, Federal-State Joint Board on Universal Service, Changes to the Board of Directors of the National Exchange Carrier Association, Inc.
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
March 9, 2023
Issuing agencies
Federal Communications Commission
Abstract
In this document, the Federal Communications Commission (Commission) seeks comment on ways to further improve E-Rate program rules and encourage greater Tribal participation in the E-Rate program. The Commission also seeks comment on whether there are other small or rural non-Tribal applicants that face similar barriers that impact their equitable access to the E-Rate program.
Full Text
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<title>Federal Register, Volume 88 Issue 46 (Thursday, March 9, 2023)</title>
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[Federal Register Volume 88, Number 46 (Thursday, March 9, 2023)]
[Proposed Rules]
[Pages 14529-14536]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-04751]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[CC Docket Nos. 02-6, 96-45, 97-21; FCC 23-10; FR ID 128840]
In the Matter of Schools and Libraries Universal Support
Mechanism, Federal-State Joint Board on Universal Service, Changes to
the Board of Directors of the National Exchange Carrier Association,
Inc.
AGENCY: Federal Communications Commission.
ACTION: Proposed rule.
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SUMMARY: In this document, the Federal Communications Commission
(Commission) seeks comment on ways to further improve E-Rate program
rules and encourage greater Tribal participation in the E-Rate program.
The Commission also seeks comment on whether there are other small or
rural non-Tribal applicants that face similar barriers that impact
their equitable access to the E-Rate program.
DATES: Comments are due on or before April 24, 2023, and reply comments
are due on or before May 23, 2023.
ADDRESSES: All filings should refer to CC Docket Nos. 02-6, 96-45, and
97-21. Comments may be filed by paper or by using the Federal
Communications Commission's Electronic Comment Filing System (ECFS).
See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR
24121 (1998).
[ssquf] Electronic Filers: Comments and replies may be filed
electronically by using the internet by accessing ECFS: <a href="https://www.fcc.gov/ecfs">https://www.fcc.gov/ecfs</a>.
[ssquf] Paper Filers: Parties who choose to file by paper must file
an original and one copy of each filing. If more than one docket or
rulemaking number appears in the caption of this proceeding, filers
must submit two additional copies for each additional docket or
rulemaking number.
[ssquf] Filings can be sent by commercial overnight courier or by
first-class or overnight U.S. Postal Service mail. All filings must be
addressed to the Commission's Secretary, Office of the Secretary,
Federal Communications Commission.
[ssquf] Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9050 Junction Drive,
Annapolis Junction, MD 20701.
[ssquf] U.S. Postal Service first-class, Express, and Priority mail
must be addressed to 45 L St, NE, Washington, DC 20554.
[ssquf] Effective March 19, 2020, and until further notice, the
Federal Communications Commission no longer accepts any hand or
messenger delivered filings. This is a temporary measure taken to help
protect the health and safety of individuals, and to mitigate the
transmission of COVID-19.
[ssquf] People with Disabilities. To request materials in
accessible formats for people with disabilities (Braille, large print,
electronic files, audio format), send an email to <a href="/cdn-cgi/l/email-protection#7e181d1d4b4e4a3e181d1d50191108"><span class="__cf_email__" data-cfemail="11777272242125517772723f767e67">[email protected]</span></a> or
call the Consumer & Governmental Affairs Bureau at (202) 418-0530.
[ssquf] Availability of Documents: Comments, reply comments, and ex
parte submissions will be publicly available online via ECFS.
FOR FURTHER INFORMATION CONTACT: Johnny Roddy, Wireline Competition
Bureau, (202) 418-7400 or by email at <a href="/cdn-cgi/l/email-protection#a2e8cdcaccccdb8cf0cdc6c6dbe2c4c1c18cc5cdd4"><span class="__cf_email__" data-cfemail="59133631373720770b363d3d20193f3a3a773e362f">[email protected]</span></a>. The
Commission asks that requests for accommodations be made as soon as
possible in order to allow the agency to satisfy such requests whenever
possible. Send an email to <a href="/cdn-cgi/l/email-protection#cdabaeaef8fdf98dabaeaee3aaa2bb"><span class="__cf_email__" data-cfemail="e4828787d1d4d0a4828787ca838b92">[email protected]</span></a> or call the Consumer and
Governmental Affairs Bureau at (202) 418-0530.
SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice
of Proposed Rulemaking in CC Docket Nos. 02-6, 96-45, and 97-21; FCC
23-10, adopted February 16, 2023 and released on February 17, 2023. Due
to the COVID-19 pandemic, the Commission's headquarters will be closed
to the
[[Page 14530]]
general public until further notice. See FCC Announces Closure of FCC
Headquarters Open Window and Change in Hand-Delivery Policy, Public
Notice, DA 20-304 (March 19, 2020). <a href="https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy">https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy</a>. The
full text of this document is available at the following internet
address: <a href="https://www.fcc.gov/document/fcc-encourages-greater-tribal-participation-e-rate-program-0">https://www.fcc.gov/document/fcc-encourages-greater-tribal-participation-e-rate-program-0</a>.
Ex Parte Rules--Permit but Disclose. Pursuant to Sec. 1.1200(a) of
the Commission's rules, this Notice shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte
rules. Persons making ex parte presentations must file a copy of any
written presentation or a memorandum summarizing any oral presentation
within two business days after the presentation (unless a different
deadline applicable to the Sunshine period applies). Persons making
oral ex parte presentations are reminded that memoranda summarizing the
presentation must (1) list all persons attending or otherwise
participating in the meeting at which the ex parte presentation was
made, and (2) summarize all data presented and arguments made during
the presentation. If the presentation consisted in whole or in part of
the presentation of data or arguments already reflected in the
presenter's written comments, memoranda or other filings in the
proceeding, the presenter may provide citations to such data or
arguments in his or her prior comments, memoranda, or other filings
(specifying the relevant page and/or paragraph numbers where such data
or arguments can be found) in lieu of summarizing them in the
memorandum. Documents shown or given to Commission staff during ex
parte meetings are deemed to be written ex parte presentations and must
be filed consistent with rule Sec. 1.1206(b). In proceedings governed
by rule Sec. 1.49(f) or for which the Commission has made available a
method of electronic filing, written ex parte presentations and
memoranda summarizing oral ex parte presentations, and all attachments
thereto, must be filed through the electronic comment filing system
available for that proceeding, and must be filed in their native format
(e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this
proceeding should familiarize themselves with the Commission's ex parte
rules.
In light of the Commission's trust relationship with Tribal Nations
and its commitment to engage in government-to-government consultation
with them, it finds the public interest requires a limited modification
of the ex parte rules in this proceeding. Tribal Nations, like other
interested parties, should file comments, reply comments, and ex parte
presentations in the record to put facts and arguments before the
Commission in a manner such that they may be relied upon in the
decision-making process consistent with the requirements of the
Administrative Procedure Act. However, at the option of the Tribe, ex
parte presentations made during consultations by elected and appointed
leaders and duly appointed representatives of federally recognized
Indian Tribes and Alaska Native Villages to Commission decision makers
shall be exempt from the rules requiring disclosure in permit-but-
disclose proceedings and exempt from the prohibitions during the
Sunshine Agenda period. To be clear, while the Commission recognizes
consultation is critically important, it emphasizes that the Commission
will rely in its decision-making only on those presentations that are
placed in the public record for this proceeding.
I. Introduction
1. The E-Rate program provides support to ensure that schools and
libraries can obtain affordable, high-speed broadband services and
internet equipment to connect today's students and library patrons with
next-generation learning opportunities and services. In January 2022,
the Commission began an initiative to increase Tribal libraries' access
to E-Rate support by first clarifying that Tribal libraries are
eligible to participate in the program and later launching its Tribal
Library Pilot Program to ensure Tribal library institutions have
equitable access to the E-Rate program. To continue to address the
underrepresentation of Tribal libraries in the E-Rate program, the
Commission seeks comment on ways to further improve program rules and
encourage greater Tribal participation in the program. The Commission
also seeks comment on whether there are other small or rural non-Tribal
applicants that face similar barriers that impede their equitable
access to the E-Rate program.
II. Discussion
2. The Commission seeks comment on several ways to simplify the E-
Rate program rules to make it easier for Tribal applicants to
participate in the program without contravening congressional
directives or increasing the risk of waste, fraud, or abuse. For
example, through the Commission's outreach to Tribal libraries this
past year, the Commission recognized that Tribal libraries still
encounter barriers that limit access to the E-Rate program, and these
barriers negatively impact the members of the Tribal communities that
they serve. The Commission seeks comment on a number of these issues to
determine whether changes or clarifications would help Tribal
applicants access E-Rate support and better serve their communities.
The Commission also seeks comment on any other ways that the Commission
can help enable more Tribal applicants to participate in the E-Rate
program. Finally, the Commission seeks comment on whether there are
other small or rural non-Tribal schools and libraries that face similar
barriers that impede their equitable access to the E-Rate program and
whether similar reforms may be needed to encourage their participation.
3. The Commission anticipates that any revisions to its rules or
procedures implementing the E-Rate program would benefit from Tribal
consultation. The Commission therefore directs the Office of Native
Affairs and Policy (ONAP), in coordination with the Wireline
Competition Bureau (Bureau), to conduct government-to-government
consultation as appropriate with Tribal Nations about the topics the
Commission raises in this Notice of Proposed Rulemaking. Tribal Nations
may also notify ONAP of their desire for consultation via email to
<a href="/cdn-cgi/l/email-protection#adc3ccd9c4dbc8edcbcece83cac2db"><span class="__cf_email__" data-cfemail="325c53465b4457725451511c555d44">[email protected]</span></a>.
A. Tribal College Libraries
4. In order to develop a complete record, the Commission seeks
comment on whether to modify Sec. 54.501(b)(2) of its rules to allow
Tribal college libraries that serve a dual role by servicing the Tribal
community as a public library to be eligible for E-Rate support. Under
present rules, ``[o]nly libraries whose budgets are completely separate
from any schools'' are eligible for E-Rate funding. The Commission
adopted these safeguards in part to protect limited universal service
funds from being diverted to institutions of higher education. However,
there may be some instances where Tribal college libraries are also
serving as the public library for their communities. In comments to the
2021 Tribal Libraries NPRM, a commenter suggested making ``public
serving librar[ies] of a Tribal College or University'' eligible for E-
Rate support. According to the Department of Education, there are
thirty-two accredited Tribal colleges in the United States. Of these
thirty-two Tribal college libraries, at least nineteen have received
Institute of Museum and Library
[[Page 14531]]
Services (IMLS) grants as direct recipients or subrecipients to provide
services to their communities. Many of these Tribal college libraries
may be the only library in the community and take on the public library
role in addition to being academic libraries.
5. Section 254(h)(4) of the Communications Act of 1934, as amended
(Act) excluded certain libraries from eligibility, but did not define
libraries. In adopting the E-Rate program rules, the Commission barred
college and university libraries from eligibility, finding this could
result in otherwise ineligible institutions draining a substantial
amount of universal service support from schools and libraries and is
therefore inconsistent with section 254(h)(5), which limited support to
elementary and secondary schools that meet certain criteria. The
Commission seeks comment on whether the Commission should reconsider
the Commission's bar on the eligibility of Tribal college libraries if
they are also acting as a public library in their community, and
whether doing so is consistent with section 254(h)(5) of the Act. Would
making this eligibility change allow the E-Rate program to provide
funding to more libraries serving and connecting Tribal patrons? What
types of evidence, if any, should the Commission deem sufficient to
demonstrate that a Tribal college library is serving a dual role: i.e.,
acting both in an academic capacity (serving students in a college) and
more broadly as a public library (serving all members of the local
community)? Should the Commission deem IMLS grants to a Tribal college
library as probative in this regard? Why or why not? Should the
Commission consider whether there are other Tribal or public libraries
in the community already? The Commission seeks additional data or
examples from commenters to help us determine whether Tribal college
libraries are serving this dual role, and if so, whether they are
unique in this regard; and to understand what other roles Tribal
college libraries might serve in their communities. Should any
additional requirements be imposed on Tribal college affiliated
libraries to qualify for E-Rate support, such as being open a certain
number of hours to the public or permitting any member of the public to
request and have materials made available to them?
6. The Commission notes that it seeks comment only on the needs of
the Tribal college library that is also serving as a public library to
its Tribal community, and does not propose to use the E-Rate program to
fund the connectivity needs of the Tribal college or university. How
can the Commission ensure the Tribal college library is supporting the
Tribal community and that E-Rate support is not diverted for other
higher education purposes contrary to congressional intent that funding
flow to an institution of learning only if it is an elementary or
secondary school? Should there be limits on the ability of a Tribal
college to establish branch libraries? For example, the Commission in
1997 was concerned a college library could establish branches in
dormitories in order to fund services to other college buildings. Here,
would limits on branches make sense or could the Commission rely on
other measures, like a requirement that the building be open and
accessible to the public? Are there any other concerns (e.g.,
procedural or budgetary) that might present challenges for Tribal
college libraries to participate in the E-Rate program? Are there other
rural non-Tribal college libraries, similar to the Tribal college
libraries, that are also serving a dual role as the academic and public
library for their rural community? The Commission also seeks data and
information about these college libraries and comment on whether there
are administrable ways to expand eligibility to Tribal college
libraries providing public library services without reversing the
Commission's 1997 decision to only make libraries eligible if their
budgets were completely separate from colleges or universities. For
example, do Tribal college libraries currently receive funding from
sources other than the Tribal college or university because they are
also serving the dual role as the Tribal community's public library?
B. Simplifying and Improving the E-Rate Application Process
7. The Commission next seeks comment on ways that it can streamline
the application process and make the E-Rate forms simpler. The American
Library Association (ALA) and the Association of Tribal Archives,
Libraries, and Museums (ATALM) have previously observed in response to
the 2021 Tribal Libraries NPRM that only 12% of Tribal libraries had
ever applied for E-Rate funding. Among the reasons cited by those that
did not apply was the perceived complexity of the E-Rate application
and funding process. The Commission agrees that further simplifying the
E-Rate forms and processes could help to increase Tribal library
participation in the program. Toward that end, the Commission notes
that one of the goals of the Tribal Libraries E-Rate Pilot Program is
to gain an understanding of the applicant experience and use the
information to streamline the E-Rate program procedures and processes,
particularly for Tribal applicants. The Commission expects the pilot
program to be useful in determining how to improve the E-Rate program
for Tribal libraries and will incorporate that feedback into this
proceeding.
8. Here, the Commission seeks comment on how to streamline the FCC
forms or change parts of the application process that may be burdensome
for Tribal libraries and other small or rural applicants. How could the
Commission simplify the language of the FCC forms, or provide guidance
about what the terminology used on the forms means? Which terminology
is the most challenging for a Tribal entity? To reduce the number of
FCC forms for applicants submitting only a small E-Rate funding request
that is less likely to attract competitive bids, should the Commission
consider providing an additional exemption to the FCC's competitive
bidding rules? For example, should the Commission exempt low-cost
purchases if the applicant is seeking category two equipment that
totals less than a pre-discount cost of $3,600, the level that
currently exists for the commercially available high-speed internet
access services exemption, or some other level? Does the existing
exemption for commercially available high-speed internet access
services reduce applicant burden? What would a reasonable pre-discount
cost be that would not create an undue risk of waste, fraud, and abuse
in the program? Should there be a maximum pre-discount price per entity
for each category of service in a single funding year? How could the
Commission still ensure that applicants are purchasing cost-effective
equipment and services? Is there any publicly available, existing
pricing data for frequently purchased equipment and services that the
Bureau could use to set ``safe harbor'' price levels for comparable
regions, below which competitive bidding would not be required? Would
exempting these purchases from competitive bidding encourage additional
small and often rural entities, like Tribal libraries and schools, to
participate in the program?
9. Would Tribal libraries benefit from having extended or separate
application filing windows because of the approval processes that may
be needed for their E-Rate eligible procurements and purchases? The
Commission understands from speaking with Tribal governments and
libraries, for example, that the procurement processes for many Tribal
schools are independent from the Tribal government's
[[Page 14532]]
procurement processes, but the Tribal library's purchases are often
included with the Tribal government's procurements. The Commission
seeks comment on whether the procurement processes for Tribal libraries
are more complicated and protracted than Tribal schools' E-Rate
procurements. Would a longer application filing window work better with
the Tribal government or council's procurement requirements? How much
additional time may be needed for Tribal libraries to complete their
Tribal procurement processes and receive approval for their requested
E-Rate eligible purchases and/or contracts? Are there any drawbacks
that the Commission should consider in deciding whether to establish an
extended or separate application filing window? Could a separate
application window delay a Tribal library from timely obtaining
broadband services during the funding year or limit the options
available to an applicant?
C. Cost Allocation Rules and Procedures
10. The Commission seeks comment on whether and how to simplify the
E-Rate program cost allocation rules and procedures. Libraries that
share services, equipment, or space with ineligible entities, like an
administrative office, are eligible for E-Rate support, but often are
required to cost allocate the portion of the cost of the services used
by the ineligible entity. Cost allocation is a part of the E-Rate
process that can be confusing for all applicants, but especially for
Tribal libraries. For instance, some Tribal libraries are located
within another Tribal building (e.g., the Tribal library only uses a
portion of the building), share a building at different points in the
week (e.g., the Tribal library operates four days a week, and the
building is used by the Tribal community for other purposes the other
three days), and/or share their internet connections with ineligible
entities (e.g., the Tribal library obtains internet access as part of
the Tribal nation's broader contract). For example, the Navajo Nation
has chapter houses that, in addition to housing local government,
contain a library that circulates materials and houses book collections
for use by their communities. Tribal libraries in these kinds of
circumstances may still receive E-Rate funding, but the Commission
recognizes the burdens that potential cost allocation requirements may
present and the possible deterrent effects of such requirements.
11. The Commission seeks comment on the cost allocation challenges
that Tribal libraries may face. Under the current procedures, are there
particular challenges for cost allocation that arise because the Tribal
libraries are housed in multi-use buildings? For example, as long as a
Tribal library meets the conditions set out in the Sixth Report and
Order, 75 FR 75393 (December 3, 2020), for community use, the library
should not need to cost allocate the use of the bandwidth when the
library is closed (e.g., from the parking lot), but are there other
scenarios that are challenging for multi-use buildings? Are there ways
the Commission could provide guidance on how or when Tribal libraries
should or should not be required to perform cost allocations? If so,
the Commission encourages commenters to provide specific examples of
how their library building is used and questions about whether cost
allocation would be required. The Commission also seeks comment on
whether certain types of potentially ineligible use should be permitted
without requiring Tribal libraries to cost allocate to simplify the E-
Rate application and invoicing processes. Are there other groups
affiliated with the Tribal library (e.g., information technology (IT)
departments or governing entities) for which Commission guidance is
needed to make cost allocation requirements more manageable? Finally,
what are the potential costs of addressing cost allocation challenges?
How can the Commission prevent waste, fraud, and abuse in the E-Rate
program while making changes in this area?
D. Category Two Discount Rates and Rule
12. While the Commission recognizes the issues of digital equity
exist for other entities, in this item, it seeks comment on making
changes to the category two discount rates and rules for Tribal
entities. The maximum category two discount rate is set at 85%, lower
than the 90% maximum discount rate for eligible category one services.
While the Commission adopted this 85% discount rate to encourage
applicants to find the most cost-effective options, should the maximum
category two discount rate be raised to 90% for Tribal schools and
libraries to encourage participation and lower costs for these
applicants? Commenters are invited to comment on both the benefits and
drawbacks of increasing the discount level from 85% to 90% for category
two services. The Commission also seeks comment on whether to consider
increasing the $25,000 funding floor for Tribal schools and libraries.
If so, what funding floor would be appropriate to ensure Tribal schools
and libraries have sufficient category two funding to meet their
internal connections and Wi-Fi network needs? If the minimum funding
floor is increased, should the Commission consider raising it for all
applicants or solely for Tribal schools and libraries? What can the
Commission do to prevent waste, fraud, and abuse in the program if it
raises the minimum funding floor? Should there be any special
considerations regarding the category two budgets of Tribal libraries
located in multi-use buildings? Are there any other changes or
enhancements that can be made to category two rules to help Tribal
schools and libraries and encourage their participation in the E-Rate
program?
E. Tribal Representation on Universal Service Administrative Company
(USAC) Board of Directors
13. To increase Tribal input and representation in the federal
universal service programs, the Commission seeks comment on a proposal
to increase Tribal representation on the USAC Board of Directors (USAC
Board) by adding a Tribal community representative director. In their
joint comments to the 2021 Tribal Libraries NPRM, ALA and ATALM
suggested adding a director ``to the USAC board with purview of tribal
libraries and other tribal organizations that are beneficiaries of
Universal Service Fund programs.'' The Commission seeks comment on this
proposal and on how to ensure Tribal entities are fairly represented on
the USAC Board and its underlying committees. Should the Commission add
a director to the USAC Board to represent Tribal interests pertaining
to universal service support provided to low-income households,
schools, libraries, health care providers, and Tribally owned
telecommunications companies? Would the addition of another director
result in a governance imbalance on the Board? If so, are there
alternatives the Commission should consider? Should the Commission
considers other changes to the Commission's rules regarding the USAC
Board that would benefit Tribal entities? The Commission seeks comment
on these questions and other ways to increase Tribal representation and
leadership at USAC and in the federal universal service programs.
F. Other Program Improvements
14. In addition to the specific areas the Commission discussed, it
also seeks comment on other measures the Commission should consider to
make it easier for Tribal schools and libraries to participate in the
E-Rate program. Are there other ways in which the Commission could
increase
[[Page 14533]]
participation of Tribal schools and libraries or enhance the E-Rate
program to help Tribal communities? What are the largest barriers for
Tribal libraries that do not currently participate in the E-Rate
program? The Commission seeks comment on examples of circumstances or
considerations unique to Tribal schools or libraries that hinder or
impede their participation in the E-Rate program. The Commission also
seeks comment on whether there are other small or rural non-Tribal
schools and libraries that face similar barriers that impede their
equitable access to or participation in the E-Rate program. Please
describe the barriers that these small or rural non-Tribal schools and
libraries encounter that hinder or impede their ability to participate
in the E-Rate program. Are there ways to leverage the Commission's
relationships with other federal agencies to improve outreach and
coordination to ensure Tribal entities are knowledgeable about federal
options for schools and libraries?
15. Are there any specific issues that Tribal entities encounter
using the E-Rate Productivity Center (EPC), the online account and
application management system for the E-Rate program? Are there any
other rule changes that could specifically help Tribal schools and
libraries with the E-Rate application, invoicing, and other
administrative processes? Are there types of guidance or clarifications
that the Commission or the Bureau could provide to address areas of
confusion? How can the Commission better target help to Tribal schools
and libraries? As noted above, the Commission launched the Tribal
Library E-Rate Pilot Program to provide assistance to Tribal libraries
and to receive feedback on E-Rate. Should the Commission consider any
additional methods of outreach (e.g., in-person training, one-on-one
assistance) to ensure that as many eligible Tribal schools and
libraries as possible are aware of the program, understand how the
program can help them meet their information technology and
connectivity needs, and are prepared to be able to apply and receive
support? If so, the Commission seeks comment on what these might be.
Finally, should the Commission adopt a definition of ``Tribal'' in the
E-Rate program rules? Currently, Tribal applicants are encouraged to
self-identify as a Tribal school or a Tribal library by checking the
Tribal box if ``the majority of students or library patrons served are
Tribal members; if the building to receive service is located partially
or entirely on Tribal land; if the applicant is a school operated by or
receiving funding from the Bureau of Indian Education (BIE); or if the
applicant is a school or library operated by a Tribal Nation.'' Would
adopting a definition in the rules make it easier to measure Tribal
progress toward program goals? Is this the appropriate definition of
``Tribal'' for the E-Rate program? Should the Commission modify it? Are
there Tribal schools or libraries that are located off of Tribal land?
If so, should the Commission also define ``Tribal lands'' or other
terms to make the definition more inclusive of such entities? The
Commission further notes that checking whether ``the majority of
students or library patrons served are Tribal members'' may be fact-
intensive and burdensome to administer. The Commission therefore seeks
comment on whether it should remove that language from the existing
Tribal definition and rely instead on other means to define ``Tribal.''
G. Digital Equity and Inclusion
16. Finally, the Commission, as part of its continuing effort to
advance digital equity for all, including Indigenous and Native
American persons, people of color, persons with disabilities, persons
who live in rural or Tribal areas, and others who are or have been
historically underserved, marginalized, or adversely affected by
persistent poverty or inequality, invites comment on any equity-related
considerations and benefits (if any) that may be associated with the
proposals and issues discussed herein. Specifically, the Commission
seeks comment on how its proposals may promote or inhibit advances in
diversity, equity, inclusion, and accessibility, as well the scope of
the Commission's relevant legal authority.
III. Procedural Matters
17. Paperwork Reduction Act. This document contains proposed new
information collection requirements. The Commission, as part of its
continuing effort to reduce paperwork burdens, invites the general
public and the Office of Management and Budget (OMB) to comment on the
information collection requirements contained in this document, as
required by the Paperwork Reduction Act of 1995, Public Law 104-13. In
addition, pursuant to the Small Business Paperwork Relief Act of 2002,
Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks
specific comment on how it might further reduce the information
collection burden for small business concerns with fewer than 25
employees.
18. Regulatory Flexibility Act. As required by the Regulatory
Flexibility Act of 1980, as amended (RFA), the Commission has prepared
this Initial Regulatory Flexibility Analysis (IRFA) of the possible
significant economic impact on a substantial number of small entities
by the policies and rules proposed in the Schools and Libraries
Universal Support Mechanism, et al., Notice of Proposed Rulemaking.
Written public comments are requested on this IRFA. Comments must be
identified as responses to the IRFA and must be filed by the deadlines
for comments in the Notice of Proposed rulemaking. The Commission will
send a copy of the Notice of Proposed Rulemaking, including this IRFA,
to the Chief Counsel for Advocacy of the Small Business Administration
(SBA). In addition, the Notice of Proposed Rulemaking and IRFA (or
summaries thereof) will be published in the Federal Register.
19. The Commission's E-Rate program, formally known as the schools
and libraries universal service support mechanism, provides support to
schools and libraries allowing them to obtain affordable, high-speed
broadband services and internal connections, which enables them to
connect students and library patrons to critical next-generation
learning opportunities and services. In the Notice of Proposed
Rulemaking, the Commission's primary objectives are to address the
underrepresentation of Tribal applicants and increase participation of
Tribal libraries. To achieve these objectives, in the Notice of
Proposed Rulemaking the Commission explore ways to further simplify the
E-Rate program rules, reduce program barriers and burdens, and
encourage greater Tribal participation and community representation.
20. The Commission's efforts to simplify the E-Rate program include
a request for comment on ways to improve the E-Rate application
process, such as by simplifying E-Rate forms, providing an additional
exemption to the competitive bidding rules, and whether creating an
extended or separate application filing window for Tribal libraries
would be beneficial to align with the applicable Tribal procurement
requirements and approval processes. The Commission also seeks comment
on modifying section 54.501(b)(2) of the Commission's rules to allow
Tribal college libraries to become eligible for E-Rate funding if they
are serving a public library function in their Tribal community, and on
whether and how to simply the E-Rate program cost allocation rules for
[[Page 14534]]
Tribal applicants. Additionally, the Commission seeks comment on
increasing the category two minimum funding floor for Tribal
applicants, and increasing the highest category two discount rate for
Tribal applicants to 90 percent.
21. In the Notice of Proposed Rulemaking, the Commission discusses
and seeks comment on a proposal to increase Tribal perspective and
representation on federal universal service programs by creating a seat
on the USAC Board of Directors for a Tribal community representative.
The Commission also seeks comment on how to ensure the fair
representation of Tribal entities on the USAC board and its underlying
committees, and other ways to increase Tribal representation and
leadership at USAC and in the federal universal service programs. In
addition, the Commission seeks comment on other options the Commission
should consider which would make it easier for Tribal schools and
libraries to participate in the E-Rate program and other ways to
improve the E-Rate program process for Tribal applicants.
22. The proposed action is authorized pursuant to sections 1
through 4, 201-202, 254, 303(r), and 403 of the Communications Act of
1934, as amended, 47 U.S.C. 151 through 154, 201, 254, 303(r), and 403.
23. 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; and (3)
satisfies any additional criteria established by the Small Business
Administration (SBA).
24. Small Businesses, Small Organizations, Small Governmental
Jurisdictions. The Commission's actions, over time, may affect small
entities that are not easily categorized at present. The Commission
therefore describes, 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.
25. 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.
26. 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 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.''
27. Small entities potentially affected by the proposed rules
herein include Schools, Libraries, Wired Telecommunications Carriers,
All Other Telecommunications, Wireless Telecommunications Carriers
(except Satellite), Wireless Telephony, Wired Broadband internet Access
Service Providers (Wired ISPs), Wireless Broadband internet Access
Service Providers (Wireless ISPs or WISPs), internet Service Providers
(Non-Broadband), Vendors of Infrastructure Development or Network
Buildout, Telephone Apparatus Manufacturing, Radio and Television
Broadcasting and Wireless Communications Equipment Manufacturing.
28. The potential rule changes discussed in the Notice of Proposed
Rulemaking if adopted, could impose some new or modified reporting,
recordkeeping or other compliance requirements on small entities.
However, since the purpose of the Notice of Proposed Rulemaking is to
streamline and simplify procedures, and improve the E-Rate program
processes, the Commission anticipates that the rule modifications that
may result from the matters upon which the Commission is seeking
comment should reduce the economic impact of current compliance
obligations on small entities. For example, the Commission seeks
comment on a specific proposal to simplify the E-Rate program by
reducing the number of required forms for entities making low-cost
purchases, which would exempt such purchases from the E-Rate
competitive bidding process. The Commission also seeks comment on
whether to modify the application filing window for Tribal libraries
providing a longer filing window in light of the approval processes
that may be needed for their E-Rate eligible procurements and
purchases. Additionally, in the Notice of Proposed Rulemaking the
Commission inquires whether there are other rule changes to the
application, invoicing, or other administrative processes in the E-Rate
program that could be made to specifically help Tribal schools and
libraries, and whether and how to simplify the E-Rate program cost-
allocation rules and procedures for Tribal and non-Tribal applicants
and seek comment. In response to comments, the Commission may simplify
and change the forms that applicants use to apply for the E-Rate
program as well as modify filing and other administrative requirements,
which should ease reporting, recordkeeping, and other compliance
requirements for small entities.
29. In assessing the cost of compliance for small entities, at this
time the Commission cannot quantify the cost of compliance with any of
the potential rule changes that may be adopted. Further, the Commission
is not in a position to determine whether, if adopted, the proposals
and matters upon which the Commission seeks comment in the Notice of
Proposed Rulemaking will require small entities to hire professionals
to comply. However, consistent with the Commission's objectives to
streamline and simply the E-Rate program processes and procedures for
Tribal schools and libraries, the Commission does not anticipate that
small entities will be required to hire professionals to comply with
any rule modifications it adopts. The Commission expects the
information it received in comments
[[Page 14535]]
including where requested, cost information, to help the Commission
identify and evaluate relevant compliance matters for small entities,
including compliance costs and other burdens that may result from
potential changes discussed in the Notice of Proposed Rulemaking.
30. 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.''
31. In the Notice of Proposed Rulemaking, the Commission has taken
steps to minimize the economic impact on small entities from the
changes to the E-Rate program on which the Commission seeks comment.
Based on outreach with Tribal applicants, the Commission has learned
that there are areas that may create burdens for Tribal entities and it
seeks comment on how to reduce or eliminate those burdens. The
Commission seeks comment on creating a competitive bidding exemption
for low-cost funding requests which has the potential to reduce the
number of forms for small entities requiring smaller amounts of E-Rate
support. Both the competitive bidding exemption and the reduction of
the number of necessary forms would reduce the associated costs for
these activities for small entities. The Commission seeks comment on
these matters. The Commission also seeks to update program rules and
administration processes for applicants and service providers that
participate in the E-Rate program which may reduce costs for small
entities. More specifically, the Commission explores whether and how
the E-Rate program cost-allocation rules and procedures for Tribal
libraries can be made simpler.
32. Further, the Commission inquired in the Notice of Proposed
Rulemaking whether to increase the maximum category two discount rate
from 85% to 90% for Tribal schools and libraries to increase
participation and lower costs for these applicants, and whether the
Commission should consider increasing the $25,000 funding floor for
Tribal schools and libraries. If increased, the Commission asked what
funding floor would be appropriate to ensure Tribal schools and
libraries have sufficient category two funding to meet their internal
connections and Wi-Fi network needs. The Commission also considered if
the funding floor is increased, whether the Commission should raise it
for all rural applicants or just for Tribal schools and libraries;
whether there should be any special considerations involving category
two budgets of Tribal libraries located in multi-use buildings; whether
there are any other changes or enhancements that can be made to
category two rules to help Tribal schools and libraries and increase
their participation in the E-Rate program and invited commenters to
submit comments on both the benefits and drawbacks of increasing the
discount level from 85% to 90% for category two services.
33. Additionally, the Commission invited commenters to suggest
other measures the Commission should consider to make it easier for
Tribal schools and libraries to participate in the E-Rate program. This
may result in proposals from small entities that lessen the economic
impact of, and increase their participation. The Commission expects the
information it receives in comments to allow it to more fully consider
ways to minimize the economic impact, and explore additional
alternatives to improve and simplify opportunities for small entities
to participate in the E-Rate program.
IV. Ordering Clauses
34. Accordingly, it is ordered that, pursuant to the authority
found in sections 1 through 4, 201-202, 254, 303(r) and 403 of the
Communications Act of 1934, as amended, 47 U.S.C. 151 through 154, 201
through 202, 254, 303(r), and 403, this Notice of Proposed Rulemaking
is adopted.
List of Subjects in 47 CFR Part 54
Communications common carriers, Internet, Libraries, Reporting and
recordkeeping requirements, Schools, Telecommunications, Telephone.
Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.
Proposed Regulations
For the reasons discussed in the preamble, the Federal
Communications Commission proposes to amend part 54 of title 47 of the
Code of Federal Regulations as follows:
PART 54--UNIVERSAL SERVICE
0
1. The authority for part 54 continues to read as follows:
Authority: 47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220,
229, 254, 303(r), 403, 1004, 1302, 1601-1609, and 1752, unless
otherwise noted.
0
2. Amend Sec. 54.500 by adding in alphabetical order the definition
for ``Tribal'' to read as follows:
Sec. 54.500 Terms and definitions.
* * * * *
Tribal. An applicant is considered ``Tribal'' if the building to
receive service is located partially or entirely on Tribal land, if the
applicant is a school operated by or receiving funding from the Bureau
of Indian Education (BIE), or if the applicant is a school or library
operated by a Tribal Nation.
* * * * *
0
3. Amend Sec. 54.501 by revising paragraph (b)(2) and adding paragraph
(b)(4) to read as follows:
Sec. 54.501 Eligible recipients.
* * * * *
(b) * * *
(2) Except as provided in paragraph (b)(4) of this section, a
library's eligibility for universal service funding shall depend on its
funding as an independent entity. Only libraries whose budgets are
completely separate from any schools (including, but not limited to,
elementary and secondary schools, colleges, and universities) shall be
eligible for discounts as libraries under this subpart.
* * * * *
(4) A Tribal college or university library that acts as a public
library by having dedicated public library staff, regular hours, and a
collection for public use in its community shall be eligible for
discounts.
0
4. Amend Sec. 54.503 by revising paragraph (e) to read as follows:
Sec. 54.503 Competitive bidding requirements.
* * * * *
(e) Exemption to competitive bidding requirements. (1) An applicant
that seeks support for commercially available high-speed internet
access services for a pre-discount price of $3,600 or less per school
or library annually is exempt from the competitive bidding requirements
in paragraphs (a) through (c) of this section.
(i) internet access, as defined in Sec. 54.5, is eligible for this
exemption only if the purchased service offers at least 100 Mbps
downstream and 10 Mbps upstream.
(ii) The Chief, Wireline Competition Bureau, is delegated authority
to lower the annual cost of high-speed internet access services or
raise the speed threshold of broadband services eligible
[[Page 14536]]
for this competitive bidding exemption, based on a determination of
what rates and speeds are commercially available prior to the start of
the funding year.
(2) A Tribal applicant that seeks support for category one or
category two services for a total pre-discount price of $3,600 or less
per school or library annually is exempt from the competitive bidding
requirements in paragraphs (a) through (c) of this section.
0
5. Amend Sec. 54.505 by revising paragraph (c) and adding paragraph
(g) to read as follows:
Sec. 54.505 Discounts.
* * * * *
(c) Matrices. Except as provided in paragraphs (d), (f), and (g) of
this section, the Administrator shall use the following matrices to set
discount rates to be applied to eligible category one and category two
services purchased by eligible schools, school districts, libraries, or
consortia based on the institution's level of poverty and location in
an ``urban'' or ``rural'' area.
* * * * *
(g) Tribal Category Two Discount Level. For the costs of category
two services, Tribal schools and libraries at the highest discount
level shall receive a 90 percent discount.
0
6. Amend Sec. 54.703 by revising paragraphs (b), (b)(12), and (13),
and by adding new paragraph (b)(14) to read as follows:
Sec. 54.703 The Administrator's Board of Directors.
* * * * *
(b) Board composition. The independent subsidiary's Board of
Directors shall consist of twenty (20) directors:
* * * * *
(12) One director shall represent state consumer advocates;
(13) One director shall represent Tribal communities; and
(14) The Chief Executive Officer of the Administrator.
* * * * *
0
7. Amend Sec. 54.705 by revising paragraphs (a)(2)(iv) and (v) and
adding new paragraph (a)(2)(vi) to read as follows:
Sec. 54.705 Committees of the Administrator's Board of Directors.
(a) * * *
(2) * * *
(iv) One Tribal community representative;
(v) One at-large representative elected by the Administrator's
Board of Directors; and
(vi) The Administrator's Chief Executive Office
* * * * *
[FR Doc. 2023-04751 Filed 3-8-23; 8:45 am]
BILLING CODE 6712-01-P
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