Ms. Marlene H. Dortch
Secretary Federal Communications Commission
45 L Street, NE
Washington, DC 20554
RE: Affordable Connectivity Program, WC Docket No. 21-450
Dear Ms. Dortch:
The U.S. Chamber of Commerce’s Technology Engagement Center (“C_TEC” or “Chamber”) appreciates the opportunity to respond to the Federal Communications Commission’s (“FCC” or “Commission”) Public Notice to implement the Affordable Connectivity Program (“ACP”) contained in the Infrastructure Investment and Jobs Act (“IIJA”). The Chamber applauds the Commission for expeditiously implementing the IIJA and transitioning from the Emergency Broadband Benefit Program (“EBB Program” or “EBB”) to the ACP.
Our nation’s communications networks play an essential role in connecting Americans and are revolutionizing the way that people work, learn, seek medical care, and communicate with friends and family. Throughout the COVID-19 pandemic, the private sector has played a critical role in keeping the “digital lights” on for the economy. The Chamber believes that broadband adoption, access, and affordability serve as crucial building blocks to connect all Americans and enable the internet economy to flourish. We offer the following suggestions to the Commission toimplement the ACP.
I. MaximizingParticipation by Eligible Providers
The effectiveness of the ACP will rest on the ability to incentivize eligible providers to participate in the program and provide a broad choice of participating service providers and cost options for consumers.
The Commission proposes that existing EBB providers, including non-ETC providers, should be grandfathered into the ACP and would not need to submit a new application to the Commission. The Chamber agrees with this recommendation. Allowing existing providers to continue participation will provide certainty for those providers and just as importantly, will minimize the risk that existing households participating in the EBB will lose a preferred participating provider or have to re-enroll for their services. Moreover, existing EBB providers should be given ample time and flexibility after final rules are established to comply with the ACP’s new requirements, including the requirement to make available “any internet service offering.” Such flexibility will help ensure a smooth rollout of the ACP.
Furthermore, for any non-ETC providers that have not participated in the EBB Program, but would like to participate in the ACP, the Chamber urges the Commission to establish a clear, fair, and streamlined process for those entities to participate. To maximize participation by eligible providers, the Commission should seek to minimize the burdens and costs on those providers, including potentially onerous reporting requirements. Consequently, we agree with the Commission’s proposal to retain the process to automatically approve applications for providers that have demonstrated the ability to offer internet service options to eligible households through programs established as of April 1, 2020, and to effectively mitigate waste, fraud, and abuse through verification processes.
II. Ensuring Eligibility for Equipment and Devices
As noted by the Commission, the IIJA removed the term “associated equipment” in the definition of “emergency broadband benefit.” As the record in this proceeding indicates, this does not mean that such equipment, which is necessary for internet service to function, should be excluded from ACP. Moreover, flexibility and technology neutrality are crucial for determining eligible services and devices, especially as new communications technologies come into the market. The Chamber recommends that the Commission make wireline and wireless devices such as modems, routers, and wireless hotspots eligible under the ACP. Similarly, the Chamber supports the inclusion of connected devices as eligible under the ACP as included in IIJA. The inclusion of both wireline and wireless devices as well as connected devices is important considering access to devices are an important tool to close the digital divide.
III.Establishing Reasonable Consumer Protection Requirements
The IIJA requires the Commission to include a number of other consumer protection requirements in addition to those already contained in the EBB. The Chamber believes that the Commission, beyond those required by the IIJA, should not create any new ACP-specific consumer protection regulations. Moreover, for any requirements contained in IIJA, the Chamber recommends that the Commission consider crafting those requirements consistent with existing regulations such as Lifeline, as appropriate.
Second, the Commission notes that the IIJA contains conflicting requirements as to the application of the Administrative ProcedureAct (“APA”)to the creation of additional consumer protections, including those on inappropriate upselling and down selling, and inappropriate restrictions on the ability to switch providers. The IIJA specified that this list of consumer protection requirements be subject to the APA even though section 904(h) of the Consolidated Appropriations Act exempted the EBB from APA requirements. Despite this conflict, the Chamber believes that the amendments made to Section 904 requiring the application of the APA should prevail considering the specific inclusion of the APA in the IIJA indicates that Congress intended for the APA to apply but simply did not make the appropriate conforming amendments. In addition, as the Commission acknowledges, the APA requirements would push the effective date of these additional consumer protection rules beyond the ACP’s overall effective date contained in the statute. The Chamber believes that given the significant potential impact of these additional consumer protection provisions on providers, good cause exists for the Commission to pursue these additional consumer protection requirements within the context of the APA even if the effective date of these additional requirements are later than the effective date of the ACP.
Third, the Commission proposes several other consumer protections requirements not required by the IIJA including on provider misconduct and failure to provide service. The Chamber recommends that for additional consumer protections not explicitly required by the IIJA, the Commission either do not pursue those additional consumer protections or include those requirements in a separate Notice of Proposed Rule Making subject to the APA. The legislative purpose of requiring a rapid transition from the EBB to the ACPis to ensure the prompt implementation of the ACP. Consequently, Congress did not likely contemplate the inclusion of additional, unspecified consumer protections considering they are not core to the prompt implementation of the ACP and would make rapid implementation more challenging for providers.
Finally, the Commission also proposes to “prohibit providers from inquiring, requesting or otherwise causing a consumer to submit to a credit check” before enrolling the consumer in the ACP. However, Congress did not provide such a blanket prohibition in the IIJA. Rather, the IIJA states that a provider in the ACP “may not require the eligible household to submit to a credit check in order to apply the affordable connectivity benefit to an internet service offering of the participating provider”(emphasis added). The Commission should construe this statutory provision to mean what it says—to prohibit credit checks only when they are required for an ACP-eligible customer to apply the benefit to an internet service offering. In other words, providers should be prohibited from conditioning an eligible low-income consumer’s access to the ACP benefit on the results of a credit check. A broader reading that is beyond the statutory text will substantially increase operational burdens for providers and could deter provider participation.
IV. Responsibly Transitioning to the Affordable Connectivity Program
The Commission has proposed that the transition from the EBB to ACP occur on December 31, 2021. The Chamber is concerned that this timeline will make it challenging for providers to effectively implement the ACP’s requirements and effectively serve eligible consumers. Also, reply comments to this proceeding are due on December 28th, 2021, only three days before the proposed transition, so it is unclear how the Commission will adequately consider all stakeholder comments. The Chamber recommends that the Commission offer significant flexibility to participating providers for a further 180 days to ensure a smooth and orderly transition and educate consumers about the ACP.
The Commission also proposes that households who wish to participate in the ACP, including current EBB households, must either opt-in or affirmatively request to enroll in the ACP. The Chamber strongly disagrees with this approach. We are concerned that requiring existing EBB households to opt-in to the ACP would create confusion and could cause many EBB households to miss out on the ACP program and monthly benefit and even face possible termination of service if they do not respond, thus undermining its very goals, reducing outreach and the effectiveness of the program. Instead, the Chamber recommends that the Commission replace the opt-in requirement with a notice and opt-out requirement, which would still provide choice for households on whether to participate or not but also ensure a seamless transition from the EBB to ACP for existing households.
V. Promoting Public Awareness
Through CollaborationThe Commission seeks comment on “the most effective ways providers can collaborate with state agencies, non-profit organizations, and public interest groups” to promote the ACP. The Chamberagrees that public awareness will require active engagement with stakeholders across the board that work with financially disadvantaged consumers. In addition, active engagement by the Commission itself will be important to a successful outreach program considering the significant experience the Commission has with national public awareness campaigns and access and credibility with national news media to publicize its efforts. The Chamber urges the Commission to avoid mandating that participating providers promote or advertise the ACPin any prescriptive manner. Providers already are making significant investments in public awareness in their low-income service programs and thus such a mandate would be unnecessary.
VI. Ensuring Effective Verification
The IIJA maintained the requirement that the Commission “expedite the ability of all participating providers to access theNational Verifier and the National Lifeline Accountability Database” to determine household eligibility to access the ACP.18The Chamber agrees that verification is essential to prevent waste, fraud, and abuse. We recommend that the Commission maintain the ability of participating providers to utilize alternative or flexible verification processes for the ACP. To ensure a smooth transition from the EBB to the ACP, the Chamber agrees with the Commission’s proposal to keep the same requirements for alternative verification. Taking this approach will also minimize administrative costs for participating providers, prevent confusion from eligible households, and ensure efficiency with enrollment.
VII. The Future of the Affordable Connectivity Program
The Commission requests comment on the sun-setting of the ACP once funding is fully expended. It is important that the Commission ensure full transparency on the ACP. Specifically, the Commission should notify providers on a real-time basis regarding estimated depletion of funds by providing a regular forecast of expected funding levels and give timely notice of the expected conclusion of the EBB Program. In addition, the Chamber looks forward to working with the Commission on the future of the ACP and broadband affordability.
Thank you for the opportunity to participate in this proceeding and the prompt implementation of the Affordable Connectivity Program. If you have any follow up questions, I may be reached at 202-463-5973 or by e-mail at firstname.lastname@example.org.
Chamber Technology Engagement Center
U.S. Chamber of Commerce