Tuesday, November 23, 2021
Part 2 in the Series
The Infrastructure Investment and Jobs Act retains the basic structure of the Emergency Broadband Benefit Program in the creation of a longer-term broadband affordability program to be called the Affordable Connectivity Program. In our first article, we looked at some of the bigger changes coming for broadband providers and consumers currently in the Emergency Broadband Benefit Program. Here we look at more of the changes coming, particularly about raising awareness and participation in the Affordable Connectivity Program, data collection and analyses to be used to track the program’s progress, the coming transition period as the Emergency Broadband Benefit Program becomes the Affordable Connectivity Program, and the possible sunset of the new program given its finite funding. The Federal Communications Commission is asking for public input—but on a tight timeline: initial comments are due Wednesday, December 8, and reply comments are due Tuesday, December 28.
I. Promoting Awareness and Participation
Promoting Awareness of the Affordable Connectivity Program
The Infrastructure Investment and Jobs Act:
Requires participating providers to notify all consumers who either subscribe to or renew a subscription to an internet service offering about the Affordable Connectivity Program and how to enroll.
The FCC asks: What does it mean to “renew” a subscription for these purposes? What are effective methods or best practices providers should employ to ensure that such notifications occur? Should the FCC, for example, require providers to certify when they submit claims for reimbursement that they have provided such notifications? What, if anything, should the FCC require of participating providers to ensure their subscriber base is informed about the Affordable Connectivity Program? Should the notification about the existence of the Affordable Connectivity Program be provided in the consumer’s preferred language? What policies or practices should the FCC enact to monitor compliance with this statutory obligation?
In addition, the FCC proposes to require providers to:
publicize the availability of the program in a manner reasonably designed to reach those likely to qualify for the service
indicate on all materials describing the Affordable Connectivity Program the eligibility requirements for consumer participation and that the Affordable Connectivity Program is non-transferable and limited to one discount per household; provide a list of qualifying connected devices, if any, with device specifications; prominently display the provider’s customer service telephone number on all promotional materials and on the provider’s website; and say that the Affordable Connectivity Program is a federal government benefit program operated by the Federal Communications Commission and, upon its conclusion, or when a household is no longer eligible, customers will be subject to the provider’s regular rates, terms, and conditions.
Requires participating providers—in collaboration with state agencies, public interest groups, and non-profit organizations—to carry out public awareness campaigns in their areas of service that highlight the value and benefits of broadband internet access service, and the existence of the Affordable Connectivity Program.
The FCC proposes to require providers to include in promotional materials how consumers can enroll in the program, including how consumers can best contact the provider in order to enroll in the Affordable Connectivity Program.
The FCC asks: What are the most effective means of publicizing the benefit to the communities most in need? Should the FCC require providers to market the Affordable Connectivity Program in the languages spoken in the areas they serve? What are the most effective ways providers can collaborate with state agencies, non-profit organizations, and public interest groups to promote the Affordable Connectivity Program?
Requires the FCC to collaborate with relevant Federal agencies to ensure a household that participates in any program that qualifies it for the Affordable Connectivity Program is provided with information about the Affordable Connectivity Program, including enrollment information.
The FCC seeks comment on how state and federal agencies that operate qualifying programs can best support eligible households. Is there a role for these agencies in educating qualifying consumers about the Affordable Connectivity Program? What information about the Affordable Connectivity Program should the FCC distribute to households participating in a qualifying program?
Requires the FCC to “ensure relevant Federal agencies update their Systems of Records Notices” to ensure that a household participating in a qualifying program is provided information about the Affordable Connectivity Program.
Allows the FCC to conduct outreach efforts to encourage households to enroll in the Affordable Connectivity Program and permits the FCC to facilitate consumer research, conduct focus groups, engage in paid media campaigns, provide grants to outreach partners, and provide an orderly transition for participating providers and consumers from the Emergency Broadband Benefit Program to the Affordable Connectivity Program.
How should the FCC utilize these statutorily provided tools to inform the public about the program? What topics should the FCC include in consumer research and/or focus groups? What methods of consumer research are proving effective in the current pandemic environment? What types of paid media will be most effective in reaching eligible households? Will social media and other types of online advertising be effective? How should the FCC allocate funding for paid media? Are there effective media strategies developed or used by stakeholders to promote the Emergency Broadband Benefit Program that could inform the FCC’s efforts?
Permits the Commission to provide grants to outreach partners.
Are there other tools the FCC should consider utilizing to increase the effectiveness of program outreach efforts?
II. Data Reporting and Tracking of Available Funding
For the Emergency Broadband Benefit Program, the FCC instructed Universal Service Administrative Company (USAC) to develop a tracker that reported on disbursements and program enrollment to allow providers and the public to monitor the balance of the Emergency Broadband Connectivity Fund and prepare for the end of the program. The tracker includes data on Emergency Broadband Benefit Program enrollment nationwide, by state, and by three-digit ZIP code areas (all updated weekly), and the total claims made by providers each month. In addition, the FCC released more granular enrollment data that included enrollee demographic information, such as age breakdown, eligibility category, type of broadband service, and enrollment numbers by five-digit ZIP code areas, all of which are updated monthly.
The FCC asks now how stakeholders used the data available on the Emergency Broadband Benefit Enrollments and Claims Tracker and whether enrollment and claims data regarding the Affordable Connectivity Program would be similarly useful. Should the FCC consider any modifications to the type or format of the public data reports, as well as the frequency of updates, for the Affordable Connectivity Program?
How Can We Tell if the Affordable Connectivity Program Works?
The FCC asks for comment on the performance measures it should use in determining the success of the Affordable Connectivity Program. How should success in the Affordable Connectivity Program be defined? Should the FCC identify goals for this program and how the commission can measure its success in meeting those goals?
- What goals should the FCC adopt for the Affordable Connectivity Program?
- How should the FCC consider the concepts of broadband affordability, adoption, and availability for low-income households?
- Should the FCC track how the Affordable Connectivity Program is delivering value to low-income consumers? If so, how can this be measured?
- Should the FCC consider evaluating take-up rates in communities with low connectivity?
- Should service type or quality be considered in an analysis?
- Should the FCC seek to understand whether the Affordable Connectivity Program is expanding the market for broadband by enrolling subscribers with no existing broadband service as opposed to those that apply the subsidy to an existing plan? If so, what information should the FCC require that providers submit to understand this distinction?
- Should the FCC use participation rates to measure program performance? To calculate those participation rates, how should the FCC estimate the program eligible population, especially given the limitations in data collection due to the ongoing pandemic? What additional data is needed to accurately estimate Affordable Connectivity Program eligibility?
- Should the FCC consider prioritizing reaching certain demographics of low-income consumers and develop targeted outreach? Should the FCC seek to collect additional demographic information about Affordable Connectivity Program subscribers and, if so, how can the burdens to consumers and providers be minimized? How might this information be used in measuring the success of the Affordable Connectivity Program?
The FCC set three program goals for the Lifeline program:
- ensuring the availability of voice and broadband service for low-income Americans;
- ensuring the affordability of broadband service for low-income Americans; and
- minimizing the contribution burden on consumers and businesses.
- Should the success of the Affordable Connectivity Program be measured against Lifeline or the Emergency Broadband Benefit Program? Given that Lifeline-eligible households will be eligible for the Affordable Connectivity Program, how should the FCC judge the concurrent performances of the two programs?
- Are there any additional data that Lifeline providers participating in the Affordable Connectivity Program can provide to the FCC that can be used to judge any substitution or complementarity between Lifeline and the Affordable Connectivity Program?
- What data should the FCC ask providers to submit to judge the efficacy of the Affordable Connectivity Program? Should the FCC ask providers to submit summary statistics on subscribers’ usage of plan features (e.g., mobile data usage) to gauge whether the Affordable Connectivity Program is providing value to households beyond what the Lifeline program offers? What data should providers submit regarding the service type a household is receiving?
What additional measures of performance should the FCC consider, and what information might be requested from providers to measure performance?
Currently, providers in the Emergency Broadband Benefit Program indicate the type of service a household receives through that program. Should the FCC also ask Affordable Connectivity Program providers to indicate the service plan characteristics—such as upload and download speeds, data allowances, and co-payment—associated with a subscriber’s service plan? If this information were required, what is an appropriate frequency (e.g., quarterly, semi-annually) for providers to submit such data on a recurring basis?
The FCC also seeks comment on the extent to which it should measure the cost effectiveness of administering the Affordable Connectivity Program.
III. The Transition
The Infrastructure Investment and Jobs Act provides for a 60-day transition period for households that qualified for the Emergency Broadband Benefit Program prior to the December 31, 2021 effective date, that would otherwise see a reduction in their benefit as a result of the changes made through the delayed amendments concerning the eligibility criteria and discount level for the Affordable Connectivity Program.
During the transition period, the FCC proposes that households enrolled in the Emergency Broadband Benefit Program as of December 31, 2021 would not be required to submit a new application to enroll in the Affordable Connectivity Program. However, before the end of the 60-day transition period, Emergency Broadband Benefit-enrolled households that qualified through eligibility criteria that are not applicable to the Affordable Connectivity Program will be required to demonstrate their eligibility to receive an Affordable Connectivity Program benefit after the transition period ends (1).
The FCC also proposes requiring all households seeking to participate in the Affordable Connectivity Program, including Emergency Broadband Benefit-enrolled households that are eligible for the Affordable Connectivity Program, to opt-in or affirmatively request enrollment in the Affordable Connectivity Program. The FCC asks if it would be feasible to require Emergency Broadband Benefit-enrolled households to opt in or request enrollment by the end of the transition period.
The FCC seeks comment on service provider notice requirements for Emergency Broadband Benefit-enrolled households that transition to the Affordable Connectivity Program and would experience a change in their benefit level at the end of the 60-day transition period.
- Should the FCC require that participating providers issue notices to consumers with the same content as was contemplated for the 15-day and 30-day end of Emergency Broadband Benefit Program notices with modifications as necessary to comport with the Affordable Connectivity Program rules?
- How can the FCC minimize the potential for consumer confusion?
- Would 30-days’ notice be sufficient time to allow consumers to prepare for the reduced benefit amount under the Affordable Connectivity Program?
- Should the FCC adopt a uniform deadline for these consumer notices, such as 30 days before the end of the transition period, or should the timing of the notices coincide with consumer billing cycles?
- Would a single notice be sufficient to communicate any rate changes that occur as a result of the changed benefit amount under the Affordable Connectivity Program?
- Should the FCC require that the notices make clear that consumers can cancel their service before the rate change takes effect?
- Would it be sufficient for service providers to notify consumers of the expected rate change under the Affordable Connectivity Program via a bill message?
By law, after December 31, 2021, an eligible household that was participating in the Emergency Broadband Benefit Program and that also qualifies for the Affordable Connectivity Program “shall continue to have access to an affordable service offering.” The FCC seeks comment on this language and its relation to the 60-day transition period into the Affordable Connectivity Program for all households enrolled in the Emergency Broadband Benefit Program starting on December 31, 2021.
- What is intended by the language providing that such households “shall continue to have access to an affordable service offering”?
- What are the outer bounds on the period of time when such households shall no longer continue to have access?
- What is the purpose of the language limiting such households to those that were participating in the Emergency Broadband Benefit Program on the date of enactment?
New and Existing Data Connections
The National Verifier is Lifeline’s centralized application system. It determines whether consumers are eligible for Lifeline as well as the Emergency Broadband Benefit Program and, eventually, the Affordable Connectivity Program.
The FCC notes that access to program databases for automated eligibility verification is essential to an optimal household application experience in the National Verifier. While the existing computer matching agreements (CMAs) allow USAC to continue utilizing the National Verifier’s Emergency Broadband Benefit Program connections for purposes of the Affordable Connectivity Program, accessing eligibility databases for the Special Supplemental Nutrition Program for Women and Infants and Children (WIC), a new eligibility program under the Affordable Connectivity Program, will likely require new or amended CMAs and interconnection security agreements with each of USAC and the FCC’s state partners. Both USAC and the states will also need to undertake technical development to build those connections. The FCC invites comments on these challenges and potential solutions to avoid delays in establishing eligibility database connections for the Affordable Connectivity Program.
The Infrastructure Investment and Jobs Act requires data sharing with the Department of Health and Human Services (HHS), U.S. Department of Agriculture (USDA), and the Department of Education through a Memorandum of Understanding with USAC to share National Verifier data and to begin sharing such data shortly after executing the memorandum. The FCC seeks comment on data maintained by these agencies that could be used by the National Verifier to speed enrollments in the Affordable Connectivity Program and combat program waste.
In the case of USDA, the FCC seeks comment on whether there is a centralized eligibility database for WIC data, which is administered at the state level. The National Verifier also has a number of current CMAs with state agencies permitting access to USDA Supplemental Nutrition Assistance Program (SNAP) participant data in those states. How should USAC and the USDA incorporate these existing CMAs into the Memorandum of Understanding?
With respect to the Department of Education, Pell Grant recipients will be eligible to enroll in the Affordable Connectivity Program but, for the Emergency Broadband Benefit Program, applications based on Pell Grant participation are subject to manual review. An automated connection with the Department of Education for Pell Grant data would improve the enrollment experience of Pell Grant recipients. Are there any legal barriers or other challenges that would prevent CMA access to Pell Grant data?
With respect to HHS, USAC and the HHS agency Centers for Medicare & Medicaid Services have a current CMA permitting data sharing to qualify Medicaid recipients nationwide for Lifeline and the EBB Program. The FCC seeks comment on whether other agencies within HHS would have any data that would benefit applicants for the Affordable Connectivity and Lifeline programs.
IV. Sunsetting the Affordable Connectivity Program
What happens when the Affordable Connectivity Program’s $14 billion in funding is fully expended? In establishing requirements for the sunset of the Affordable Connectivity Program, how can the FCC benefit from the rules already established for the wind-down of the Emergency Broadband Benefit Program? Should the FCC delegate to the Wireline Competition Bureau the responsibility for setting the requirements for the wind-down of the Affordable Connectivity Program? What notice requirements should the FCC consider for the wind-down? How much notice should the FCC give to providers and households regarding the end of the program? How much notice will participating providers require in order to give adequate notice to households? The FCC and USAC have developed a projection forecasting the termination of the Emergency Broadband Benefit Program. How best can the FCC forecast the end of the Affordable Connectivity Program?
- The FCC expects this requirement will affect only a small number of households currently enrolled in the Emergency Broadband Benefit Program. The FCC will provide guidance on the processes that this subset of Emergency Broadband Benefit-enrolled households will need to complete in order to demonstrate eligibility to receive the Affordable Connectivity Program benefit after the transition period.