USF Tracker – December 2021 | Kelley Drye & Warren LLP

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The future of the Universal Service Fund (part 2)

Last month we discussed trends in funding for universal service programs, noting that recently Congress has earmarked some funds directly for similar purposes to USF, such as EBB and ECF. November saw the passage (finally) of the Infrastructure Investment and Jobs Act (IIJA or, simply, the Infrastructure Act). One provision of the Infrastructure Act is that the FCC reports to Congress on the FCC’s options to “improve its effectiveness in achieving universal service goals” in light of the infrastructure act spending. The FCC dutifully issued an investigation notice to seek opinions on this report, with comments expected in January. Not surprisingly, a wide variety of USF stakeholders are responding to the NOI. Some see the NOI and the ensuing report as a threat to USF as we have known it for 20 years. Others focus on ways to expand USF programs or fill gaps in existing programs. The Commission seems to have a broad view of the procedure. It sets its universal service goals to include “universal deployment, affordability, adoption, availability and equitable access to broadband across the United States”, which in some ways is broader. than the current USF program.

Because time is running out, we would like to highlight a few questions that the FCC has proposed, for consideration by those who wish to participate in the proceedings. Among the most interesting are the following:

  • Commission proposes an evolving standard for sufficient broadband access, seeking “input on how our programs may continue to evolve in light of the law, but” will not in any way reduce the mandate of Congress to meet the objectives universal service for broadband. “(Paragraph 19)
  • Commission seeks comment on ‘How should we explain the role that the non-permanent programs created by Congress in response to the COVID-19 pandemic (EBB, ECF and the COVID-19 telehealth program) have played in complementing the USF programs? “(paragraph 20)
  • It invites comments on the data it should collect to assess the performance of universal service programs in achieving their objectives (para. 20)
  • Noting the important broadband deployment programs in the Infrastructure Act, the Commission asks: “How should the report [to Congress] account of the relationship between the projects to be financed by the law and those financed by the USF? (para. 25)
  • He seeks to avoid duplication of funding, asking, “How can we cooperate with other federal agencies to prevent unnecessary duplication of broadband funding (that is, represent to the two agencies that one particular activity is supported by the program of that agency without revealing that the same activity is supported by the other agency)? “(Para. 27)

The Opinion then asks for a number of recommendations on how it should modify its USF (High Cost, Lifeline, E-Rate and Rural Healthcare) programs in light of this funding. This is the key question facing the Commission. With Congress stepping in to provide additional funding for broadband, what is the future of the USF program? He still has an important role, we are sure. But can it be refocused, and if so, how? When you combine this question with the looming question of contribution reform, the FCC has vexatious rulings before it regarding the successful USF program. All stakeholders should take note.

Recent news

General (including non-USF programs)

  • On December 28, the FCC issued a Public notice (DA 21-1609) announcing its streamlined monthly arrangements for USF requests made by the Universal Service Administrative Company (USAC). The deadline for filing reconsideration motions or reconsideration requests relating to the disposition of any such request is 30 days from the date of publication of this public notice.
  • On December 23, the FCC issued a Public notice (DA 21-1640) announcing the appointment of seven members to the USAC Board of Directors. The term of the representative of the commercial mobile radio service providers will end on December 31, 2022. All other positions are for a three-year term starting on January 1, 2022.
  • On December 16, the FCC released a Notice of investigation (FCC 21-127) on the future of the universal service program. The notice of inquiry will inform a report the Commission is due to submit to Congress “on the Commission’s options for improving its effectiveness in achieving universal broadband service goals in light of [the Infrastructure Act]. ” Comments will be due by January 18, 2022 and responses by January 31, 2022..
  • On December 9, the FCC and issued a Public notice (DA 21-1532) announcing that President Jessica Rosenworcel, in consultation with Agriculture Secretary Tom Vilsack, has appointed members to sit on the re-chartered working group to review the connectivity and technology needs of precision agriculture in the United States (Precision Ag Connectivity Working Group or Task Force). The working group will hold its first meeting under the new charter on Thursday, January 13, 2022, starting at 10 a.m. EST. The Public Notice also provides below for a limited exemption from the ex parte rules for certain communications between the Workgroup and members of the Workgroup and FCC staff or trustees.
  • On December 8, the FCC’s Wireline Competition Bureau (WCB) released a Order (DA 21-1524) rescinding the rules governing Internet service offer, standard tariff, provider participation, and election notice requirements for termination of the emergency broadband benefits program (EBB program ), and providing additional guidance for the transition to the Affordable Connectivity program.
  • On December 2, CAT issued a Public notice (DA 21-1507) announcing an updated version of Frequently Asked Questions (FAQs) for the Secure and Trusted Communication Networks Reimbursement Program. Updated FAQs and other important documents related to the refund program are available at https://www.fcc.gov/supplychain.

Lifebuoy / Emergency Broadband Advantage / Affordable Connectivity Program

  • On December 30, CAT published a Order (DA 21-1650) which extends, for the tenth time, various waivers related to COVID-19 in the Lifeline program via March 31, 2022.
  • On December 27, Assurance Wireless filed a Request for exemption of the FCC rules for Lifeline refunds for Texas subscribers.
  • On December 27, CAT issued a Public notice (DA 21-1641) approving the Lifeline Compliance Plan amendments filed by AirVoice Communications to reflect its recent acquisition by VTel Holdings, LLC.
  • On December 8, CAT issued additional tips (DA 21-1524) on the transition and operation of the Affordable Connectivity Program, which is scheduled to begin January 1, 2022. The Bureau waives certain rules for the Broadband Emergency Benefit (EBB) program in light of the Infrastructure Act and provides guidance to help stakeholders move from EBB to CPA.

High cost fund programs

  • On December 16, the FCC released a Public notice (DA 21-1582) announcing the interim approval of over $ 1 billion in funding from the Rural Digital Opportunities Fund (RDOF), awarded to 69 successful bidders in the RDOF auction ( Auction 904). The Commission will authorize support for each of the listed submissions, subject to the submission of the required letter (s) of credit and the Bankruptcy Code opinion letter (s).
  • On December 8, CAT and the Rural Auction Working Group (RBATF) published a Public notice (DA 21-1512) announcing the modification of the support and associated defined deployment obligations of AMG Technology Investment Group, LLC dba Nextlink Internet (Nextlink) and Plains Internet, LLC (Plains) (together, the Parties) and authorizes each Party to receive changes in support amounts. This follows the approval, on 25 August, of the transfer of national Article 214 authorizations between the parties with regard to the exchange of CAF phase II auction support and obligations associated with certain blocks of census in Texas.
  • On December 2, CAT published a Order (DA 21-1502) which extends the limited waiver of letters of credit rules for recipients of FAC Phase II auction funding and rural broadband experiments to December 31, 2022.

Schools and Libraries (E-Rate) / Emergency Connectivity Fund

  • On December 20, the FCC approved another round support from the Emergency Connectivity Fund, totaling nearly $ 603 million.
  • On December 14, the FCC adopted a Notice of proposed regulations (FCC 21-124) proposing to create a bidding portal for the submission of all E-rate bids. The advisory responds in part to recommendations from a GAO audit of the FCC’s E-rate program. Comments will be due 60 days after the notice is posted in the Federal Register.
  • On December 2, CAT published a Order (DA 21-1499) which granted an expedited waiver request to the deadline for submitting invoices for the Emergency Connectivity Fund (ECF) program. The petition was submitted by the Alliance of State Electronic Rate Coordinators (SECA).

Rural health care (CSR)

  • On December 8, CAT published a Order (DA 21-1530) granting a request to review a decision from the USAC, which denied a request for funding from Midwest Medical Center for the 2018 funding year because it determined that the requested equipment was no was not eligible for the Healthcare Connect Fund (HCF) program. The order returned the funding request at issue to USAC for further processing.

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