FCC Begins the Transition of the Emergency Broadband Benefit Program into the Affordable Connectivity Program

A household may qualify for the Affordable Connectivity Program if at least one member of the household:

In addition to adding WIC as a qualifying program for the Affordable Connectivity Program, Congress raised the maximum income for qualifying based on household income from “135 percent” to “200 percent” of the Federal Poverty Guidelines for a household of that size. Congress also eliminated as qualifying criteria substantial loss of income since February 29, 2020, and participation in a provider’s COVID-19 Program. FCC rules governing the Affordable Connectivity Program will need to reflect these eligibility changes, and the National Verifier will require modifications to implement them.

As in the Emergency Broadband Benefit and Lifeline programs, the FCC proposes to lean most heavily on the National Lifeline Accountability Database to check eligibility and enroll households in the Affordable Connectivity Program. The National Lifeline Accountability Database (NLAD) allows service providers to enroll Lifeline eligible consumers in the program and manage their Lifeline subscribers. [After a consumer qualifies for the Lifeline program through the National Verifier, their service provider must enroll them in the program.]

In most states (with the exception of “NLAD opt-out states” – California (2), Oregon, and Texas), service providers use the National Lifeline Accountability Database to enroll their consumers. The FCC is proposing requiring broadband providers to transmit to NLAD information about a subscriber (3), service, connected device, how eligibility was determined, and whether the household lives on a Tribal land or high-cost area that is eligible for the enhanced support of up to $75 a month.

Like in the Emergency Broadband Benefit Program, the FCC proposes requiring prospective Affordable Connectivity Program subscribers who are not already enrolled in Lifeline to submit an application in order to enroll in the Affordable Connectivity Program (4). The FCC proposes requiring eligible households to interact directly with the National Verifier to apply for the Affordable Connectivity Program, as is currently required for the Emergency Broadband Benefit Program and the Lifeline program.

Households enrolled in the Lifeline program are automatically eligible for the Affordable Connectivity Program based on their Lifeline eligibility, so the FCC proposes not to require these households to submit new applications or new eligibility documentation to participate in the Affordable Connectivity Program, provided that the household opts in or affirmatively requests enrollment in the Affordable Connectivity Program and is already enrolled in NLAD (5).

Of note, for the Emergency Broadband Benefit Program, the FCC determined that households with students enrolled in schools or school districts participating in the Community Eligibility Provision, which qualifies entire schools rather than individual students for the meal programs, are eligible regardless of whether anyone in the household applied for school lunch or breakfast assistance individually. Because of the longer duration of the Affordable Connectivity Program, the FCC is revisiting this decision, wondering about the impact of providing the $30/month subsidy to households that may not meet the eligibility criteria. Are there alternatives that the FCC should consider to ensure that households seeking to qualify based on participation in the Community Eligibility Provision would otherwise qualify for the school lunch and breakfast program?

Recertification

The FCC proposes to require households to recertify their eligibility for the Affordable Connectivity Program at least annually, starting with the calendar year following their enrollment in the Affordable Connectivity Program. USAC would be responsible for the recertification of households who enrolled through the National Verifier (6). For the purposes of this requirement, the FCC asks if it should adopt the existing Lifeline rules and processes governing recertification and de-enrollment of households who do not pass recertification or fail to timely recertify. Additionally, for households enrolled in both Lifeline and the Affordable Connectivity Program, should the FCC allow them to rely on their Lifeline program recertification, including Lifeline program recertifications conducted by state agencies or state administrators for the opt-out states, to satisfy any recertification requirements? 

Usage Requirements

Similar to the Lifeline and Emergency Broadband Benefit Programs, the FCC proposes to apply a usage requirement to the Affordable Connectivity Program. Where a household receives a service for which a fee is not assessed or collected, the FCC believes limiting reimbursement to households who are actually using a supported service is an important safeguard against waste, fraud, and abuse.  The FCC proposes to prohibit participating providers from claiming Affordable Connectivity Program reimbursement for households that are not actually using a service for which a fee is not assessed or collected. The FCC seeks comment on how to properly determine if program participants are actually using the services they receive support for.

Enrollment

The FCC seeks comment on the disclosures and consumer consent that providers participating in the Affordable Connectivity Program should be required to make before enrolling consumers in the program. The FCC proposes:

  • Requiring that providers make disclosures to all consumers before enrolling them in the program. 
  • The disclosures describe that the Affordable Connectivity Program is a government program that reduces the customer’s broadband service bill up to the maximum benefit amount for that household, and that the household would be subject to the undiscounted service rate and generally applicable terms and conditions upon de-enrollment from the program and/or at the program’s end.
  • The disclosure notify the household of its ability to file a complaint against its provider through the FCC’s Consumer Complaint Center and that a provider may disconnect the household’s supported service for non-payment. 
  • Households be notified that they can apply the benefit to any broadband service offering of the participating provider, at the same terms available to households that are not eligible for supported service.   
  • Participating providers collect and retain documentation demonstrating that the household was provided these disclosures before enrolling with the provider.

The FCC seeks comment on these disclosures and asks what other information is essential for a household to know about the Affordable Connectivity Program and the rights of consumers under the program when enrolling with a provider. The FCC asks what the disclosures should state about the Affordable Connectivity Program’s length that would be useful and informative for the household.   

The FCC also proposes that participating providers seeking to enroll any subscriber in the Affordable Connectivity Program must obtain that household’s affirmative consent after the household has reviewed the program disclosures and before the provider can enroll the household in the program. And that such consent must be obtained by a provider performing a transfer transaction for a subscriber already enrolled in the program. As in the Emergency Broadband Benefit Program,  the FCC proposes to require providers to obtain a record of this affirmative consent from the household and to make such documentation available to the FCC and USAC upon request and in a timely manner. Finally, the FCC proposes that such documentation clearly identifies subscriber information, the date consent was given, and the method of consent.  

Consumer Choice

The Infrastructure Investment and Jobs Act adds a new requirement that a participating provider “shall allow an eligible household to apply the affordable connectivity benefit to any internet service offering of the participating provider, at the same terms available to households that are not eligible households.” The FCC asks if “any internet offering” should include legacy or grandfathered plans or whether it only includes current offerings of a provider to new customers. How will providers make all of their offerings available for the Affordable Connectivity Program? In particular, how will providers manage available offerings to ensure compliance with these statutory requirements?  

It may be that providers offer different plans in different geographies. How does geography affect plan availability? Will some households be more limited in their ability to apply the affordable connectivity benefit than others? How much time will providers need to assess their available offerings, and does an expedited timeline for the launch of the program impact a provider’s ability to go from hand-picking qualifying service offerings for inclusion in the Emergency Broadband Benefit Program to the comprehensive approach described in the Infrastructure Investment and Jobs Act?

Of note, the FCC proposes that, as in the Emergency Broadband Benefit Program, the Affordable Connectivity Program benefit cannot be applied to the full price of broadband-bundled video service because it is not necessary to ensure that consumers have a robust choice in broadband service offerings. The FCC proposes that voice, data, and text bundled services will be eligible for Affordable Connectivity Program support.

Service Standards

For the Emergency Broadband Benefit Program, the FCC declined to apply minimum service standards to the internet service offerings eligible for discounts. Should the FCC reconsider this approach for the Affordable Connectivity Program? 

  • Does the FCC have the authority to institute minimum service standards for the Affordable Connectivity Program? 
  • The Affordable Connectivity Program will feature a lower standard support amount of $30. Would setting minimum service requirements help to ensure that households are receiving a competitive broadband service that is covered by the support amount? 
  • What should the minimum standards be? 
  • Should the FCC adopt the minimum service standards in place for the Lifeline program or different standards?
  • Given the functional differences between how a household uses a mobile and fixed internet connection, the FCC seeks comment on whether different service standards should be considered for mobile versus fixed internet service, and if so, what to base those standards on.
  • How should the Affordable Connectivity Program standards evolve over time?

In lieu of minimum service standards, should the FCC consider other approaches to ensure that households are receiving a competitive service offering?  Are such standards necessary given the additional consumer protections and the requirement that providers make all of their service offerings available for the Affordable Connectivity Program? 

Households may apply the Affordable Connectivity Program benefit to any internet service offering “at the same terms available to households that are not eligible households.” Does this requirement ensure that eligible households receive competitive broadband service offerings? Does the FCC have the authority to impose any limitations on the services offered?

  • What rules would enhance the opportunity for low-income households participating in the Affordable Connectivity Program to receive a competitive internet service offering that meets the needs of the household?
  • While households should be able to apply the Affordable Connectivity Program benefit to an internet service offering of their choosing, should the FCC prevent providers from introducing into the marketplace internet service offerings that seek only to maximize the Affordable Connectivity Program benefit reimbursement while not actually providing households with market-rate internet service?
  • Should the FCC be concerned that providers will have an incentive to raise the price of a $15 plan to a $30 dollar plan solely to maximize the reimbursement amount? 

What additional safeguards and requirements, if any, should the FCC adopt? Are there additional measures the FCC can take to reduce price gouging and other harms?

Alternatively, will providers respond to the requirement that Affordable Connectivity Program and non-Affordable Connectivity Program subscribers have access to the same service offerings by restricting offerings of certain plans for all of their customers?  How can the FCC reduce the incentive for providers to enact pricing or offering strategies that may harm non-eligible households?

Associated Equipment

The Emergency Broadband Benefit Program explicitly allowed for support for “associated equipment” such as modems, routers, and hotspot devices and antennas. The Infrastructure Investment and Jobs Act does not retain the associated equipment language, so the FCC asks if the Affordable Connectivity Program benefit can help cover the monthly rental costs of such equipment. 

Connected Devices

Congress explicitly excluded cellular phones and smartphones from the list of eligible devices for Emergency Broadband Benefit and the FCC interpreted this to include devices that can independently make cellular calls such as large phones or phablets. The FCC proposes to retain that decision for the Affordable Connectivity Program. 

By law, a provider may not receive reimbursement for more than one connected device per household in either the Emergency Broadband Benefit Program or the Affordable Connectivity Program. The FCC asks if this restriction means that a carrier cannot be reimbursed if it provides a new device to an Affordable Connectivity Program household after the household also received a discounted device as part of the Emergency Broadband Benefit Program.

The FCC also seeks comments on households’ experiences with the connected device discount. The vast majority of connected devices supported in the Emergency Broadband Benefit Program were tablets, with far fewer households receiving laptop or desktop computers.

  1. Did providers offer a broad range of device choices?   
  2. Were the devices offered to households too restrictive or limited in function? 
  3. Should the FCC require that a connected device be able to connect to all Wi-Fi devices, and not just certain hotspots? 

The FCC also seeks comment from providers on what factors they considered in their decisions to offer or not to offer connected devices in the Emergency Broadband Benefit Program.

Connected devices eligible for the discount in the Emergency Broadband Benefit Program have to: support video conferencing platforms, be Wi-Fi enabled, have video and camera functions, and be accessible to and usable by those with disabilities. The FCC asks if it should adopt minimum system requirements for connected devices—for example, the minimum size for tablets to ensure that the screen size is adequate for meaningful use. Given that the Affordable Connectivity Program is intended to be a long-term program, if the FCC does adopt minimum system requirements, how often should they be updated, if at all? 

III. Enhanced Affordable Connectivity Benefits

Although the Affordable Connectivity Program benefit is set at $30/month, consumers in some areas will be eligible for a higher monthly subsidy.

Tribal Lands Benefit

The Affordable Connectivity Program retains from the Emergency Broadband Benefit Program the enhanced, $75 per month subsidy for households located on Tribal lands. The FCC proposes to use a definition of Tribal lands that includes any federally recognized Indian tribe’s reservation, pueblo, or colony including former reservations in Oklahoma; Alaska Native regions; Indian allotments; Hawaiian Homes Lands—areas held in trust for Native Americans by the state of Hawaii. The FCC seeks comment on this proposal.

High-Cost Areas

The Infrastructure Investment and Jobs Act also provides for a separate enhanced benefit for households that are served by providers in high-cost areas. [That is unserved areas in which the cost of building out broadband service is higher, as compared with the average cost of building out broadband service in unserved areas in the United States (as determined by the National Telecommunications and Information Administration in consultation with the Federal Communications Commission (7)).] In these areas, the law requires the FCC to establish a mechanism by which an Affordable Connectivity Program participating provider receives an enhanced benefit of up to $75 for broadband service. The FCC seeks comment on how it can best administer this provision efficiently and with a minimal burden on qualifying households and providers.

First, the NTIA must identify high-cost areas. Afterward, the FCC asks what the provider must be required to show to establish that there would be a “particularized economic hardship to the provider such that the provider may not be able to maintain the operation of part or all of its broadband network” if the provider is limited to providing a discount of only $30. 

IV. Consumer Protections

The Infrastructure Investment and Jobs Act leaves unchanged the requirements that broadband providers must not deny an eligible household the ability to participate in the Affordable Connectivity Program based on any past or present arrearages with that provider. Providers are still required to certify that subscribers will not be required to pay an early termination fee if the eligible household being claimed elects to enter into a contract to receive such internet service offering and later terminates the contract. Providers must also still certify that the subscriber was not subject to a mandatory waiting period for their supported service based on having previously received internet service from the provider and that the household will be subject to the provider’s generally applicable terms and conditions as applied to other customers.

The Infrastructure Investment and Jobs Act also adds several new provisions related to consumer protection that build upon the existing measures in the Emergency Broadband Benefit Program. The FCC seeks comment on how to implement the new consumer protection provisions.

1. Credit Check Prohibition

A participating provider may not require an eligible household to submit to a credit check as a condition for applying the Affordable Connectivity Program benefit to that provider’s internet service offerings. The FCC proposes to prohibit providers from inquiring, requesting or otherwise causing a consumer to submit to a credit check, or from accessing a consumer’s credit information, before enrolling the consumer in the Affordable Connectivity Program.  

2. Non-Payment

A participating provider may terminate a subscriber’s access to broadband internet access service supported by the Affordable Connectivity Program after 90 days of non-payment. But providers cannot decline to enroll a household based on “any past or present arrearages with a broadband provider.” The FCC seeks comment on how it should reconcile these provisions. To prevent undue termination of service and loss of vital benefits, the FCC proposes to require participating providers to provide adequate notice to subscribers of their delinquent status before terminating the subscriber’s service for non-payment. 

3. Consumer Complaint Process

The law requires the FCC to establish a dedicated complaint process for Affordable Connectivity Program participants to file complaints about the compliance of participating providers with program rules and requirements, including complaints “with respect to the quality of service received under the program.” The FCC seeks comment on this requirement, generally, including how it should measure quality of service received under the program.

The FCC proposes to add:

  • Affordable Connectivity Program content to its Consumer Complaint Center to educate consumers about the program,
  • a dedicated pathway in the Consumer Complaint Center to file program-related complaints, including notification to the providers that the complaint involves the Affordable Connectivity Program,
  • clear direction to consumers on how to correctly file an Affordable Connectivity Program complaint, and
  • dedicated FCC staff from its Consumer and Governmental Affairs Bureau to review and process the complaints. 

Are there other ways the FCC can provide improvements to its existing informal consumer complaint process to benefit the dedicated complaint process for Affordable Connectivity Program participants? What, if any, additional changes or modifications should the FCC make to the existing informal consumer complaint process? 

The law requires the FCC to act expeditiously to investigate potential violations of program rules and requirements and to enforce compliance. The FCC proposes to use its existing, statutorily permitted enforcement powers to initiate investigations of program rule violations.

The law also requires participating providers to provide Affordable Connectivity Program participants with information on the FCC’s dedicated complaint process. Should the FCC require participating providers to prominently display the FCC’s contact center phone number and the website address for the Consumer Complaint Center on the subscriber’s bill, on the provider’s Affordable Connectivity Program webpage, and on all of the provider’s marketing materials?  

The FCC must regularly issue public reports regarding consumer complaints alleging provider non-compliance with the Affordable Connectivity Program rules. What should those reports include? How frequently should they be published? How should the FCC balance transparency with privacy?

4. Inappropriate Upselling and Downselling

The Infrastructure Investment and Jobs Act mandates that the FCC promulgate additional rules to protect consumers who participate in or seek to participate in the Affordable Connectivity Program, including rules prohibiting any inappropriate upselling or downselling by a provider. What practices constitute inappropriate upselling or downselling? Are upselling or downselling always inappropriate, or are there instances where such practices are beneficial to the consumer? If so, when is upselling or downselling appropriate? What, if any, upselling or downselling practices should be permitted?

5. Long-Term Contracts

The Infrastructure Investment and Jobs Act requires that the FCC promulgate rules that would protect consumers in the Affordable Connectivity Program from any inappropriate requirements that a consumer opt-in to an extended service contract as a condition of participating in the Affordable Connectivity Program. What constitutes an inappropriate opt-in requirement? Can a provider require an opt-in to a longer-term contract before the household enrolls in the Affordable Connectivity Program? Should the FCC prohibit opt-ins prior to enrollment in all situations? Or are there times when pre-enrollment opt-in is beneficial to the enrolling household?  Are there circumstances where an extended service contract would be beneficial to consumers, and if so, what are those circumstances?

6. Switching Service Plans

The Infrastructure Investment and Jobs Act prohibits providers from implementing any inappropriate restrictions on the ability of a customer to switch internet service offerings. Should the FCC prohibit providers from limiting their Affordable Connectivity Program-supported service offerings to new or existing customers?  How can the FCC determine what constitutes an inappropriate restriction?  Are there any restrictions on the ability to switch internet service offerings that would be considered appropriate, and if so, under what circumstances would such restrictions be appropriate? What restrictions should the FCC prohibit or permit?

7. Switching Service Providers

The Infrastructure Investment and Jobs Act requires the FCC to promulgate rules to protect consumers from any inappropriate restrictions by a participating provider on the ability of a consumer to switch participating providers other than a requirement that the customer return customer premises equipment provided by the participating provider. The FCC seeks comment on what constitutes an inappropriate restriction of a consumer’s ability to switch participating providers. 

8. Undermining Affordable Connectivity Program Purpose

The Infrastructure Investment and Jobs Act requires the FCC to promulgate rules related to unjust and unreasonable acts or practices that undermine the purpose, intent, or integrity of the Affordable Connectivity Program. The FCC seeks comment on what additional consumer protection measures it should enact to protect prospective and existing program participants. The FCC also asks how USAC and the FCC can best address provider misconduct to avoid consumers being subject to potential fraudulent activity that could or may have already occurred. 

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