TR Daily FCC Releases Draft ECF Order Outlining Eligible Devices, Services
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Monday, May 3, 2021

FCC Releases Draft ECF Order Outlining Eligible Devices, Services

With the statutory deadline fast approaching for adopting rules governing the $7.17 billion Emergency Connectivity Fund, which is aimed at helping close the homework gap during the COVID-19 pandemic, acting FCC Chairwoman Jessica Rosenworcel today circulated and released to the public a draft report and order that, among other things, would generally limit support to commercially available services, would not impose minimum service standards, and would not limit the off-campus locations where supported services and devices could be used for remote learning activities.

However, the draft report and order in WC docket 21-93 released this afternoon would not allow "reimbursement for eligible equipment and services purchased for use at the school or library (i.e., on-campus use) during the COVID-19 emergency period."

In an exception to the Commission’s normal practice in recent years of publicly releasing only draft items intended for a vote at one of the agency’s monthly meetings, Chairwoman Rosenworcel decided that "[i]n light of the approaching statutory deadline, the urgency surrounding pandemic relief, and the Commission’s desire to receive targeted and timely input from a broad cross-section of the affected public, … extraordinary circumstances exist to warrant the discretionary release of the draft Report and Order, including draft rules, to the public today," the FCC said in a press release.

In a statement, Chairwoman Rosenworcel said, "Developing rules on an expedited basis to administer an emergency $7.17 billion fund is a complex task and so I appreciate Commissioner Brendan Carr’s encouragement to share a draft with the public as the Commission finalizes the structure of the Emergency Connectivity Fund Program. I look forward to working with all of my colleagues on this important program."

Speaking of the ECF program’s aims, she said, "During the pandemic, our classrooms went virtual and what was already an unconscionable homework gap has become a learning chasm with even more devastating consequences. Even as the pandemic ebbs in some areas and surges in others, millions of students are still engaged in remote learning, and there is no time to lose. Congress has entrusted the Commission with the vital task of providing relief to our students, teachers, school staff, and library patrons—and has mandated that we do so quickly."

The draft report and order would limit reimbursements to one fixed broadband connection per location and one connected device and one Wi-Fi hotspot per student, school staff member, or library patron. "We agree with those commenters that suggest that while a per-location limitation on fixed broadband services is reasonable, a similar limitation on Wi-Fi hotspots would be impractical since many of the Wi-Fi hotspots distributed by schools and libraries are insufficient for multiple users and many homes with multiple students, school staff, or library patrons could benefit from more than one Wi-Fi hotspot," the draft item says.

It would set a "reasonable maximum support amount" of $400 per connected device and $250 per Wi-Fi hotspot, with the understanding that support for wireless connectivity service to the hotspot would be separate. "For the other types of eligible equipment—namely, modems, routers, and devices that combine modems and routers—we do not at this time have a sufficient record to determine a reasonable maximum support amount, nor do we expect to receive requests totaling a substantial amount of the Fund. We therefore direct [the Universal Service Administrative Co.] to carefully review the requests and identify applications that are out of line with the funding requests of other applicants," the draft item says.

It would limit eligible advanced telecommunications or information services to commercially available services "providing a fixed or mobile broadband connection for off-campus use by students, school staff, or library patrons."

"With the one exception for areas where no service is available for purchase, we exclude from eligibility funding for dark fiber and the construction of new networks, including the construction of self-provisioned networks," it says.

"We recognize that some schools and libraries have taken extraordinary steps to connect their students and patrons since the start of the pandemic and applaud their commitment to connect their students, school staff, and library patrons. But, by excluding support for potentially costly construction or self-provisioning projects, we are able to satisfy the Congressional goals and swiftly act to provide much-needed support to more schools and libraries throughout the country. We thus find that providing support for such network construction in areas with commercially available options would be inconsistent with the emergency purposes of the Emergency Connectivity Fund and better addressed through other Commission universal service programs or broadband efforts that have established competitive bidding and cost-effectiveness safeguards," the draft item says.

"Despite this understanding of Congress’ intent to speed funding to schools and libraries through commercially available broadband offerings, we provide a limited exception to this finding. The record reflects the fact that in some instances there is simply no commercially available service for purchase available to reach students, school staff, and library patrons in their homes. In only those limited instances, network construction (including construction of wireless networks) is the only way to quickly bring connectivity to these students, school staff, and library patrons, and we believe that the ‘purchase’ of equipment necessary to make advanced telecommunications and information services functional is consistent with Congress’ intent to provide emergency connectivity to students, school staff, and library patrons that do not have any other options. Where there are no such services available, we will allow schools and libraries to seek Emergency Connectivity Fund Program support to construct or self-provision networks to connect students, school staff, and library patrons during the COVID-19 emergency period who would otherwise not be connected, and we will not require schools and libraries to engage in competitive bidding," it adds.

The draft order would "decline to apply minimum service standards to covered services for the Emergency Connectivity Fund Program. As commenters recognize, to do otherwise would penalize schools, libraries, students, school staff, and library patrons in places where slower speed, data capped, and/or high latency services are currently the only affordable options. We also recognize that schools and libraries made purchases over the last year based on availability during the emergency, but without specific knowledge of whether such purchases might be eligible or ineligible for future support, such as from the Emergency Connectivity Fund."

"Because the issue was raised in the record, we also clarify that, consistent with the E-Rate Program, schools and libraries may contract with any service provider or vendor willing to comply with the Emergency Connectivity Fund Program rules, not just eligible telecommunications carriers," it adds.

The draft order would allow some use of the supported services and equipment for non-educational purposes.

"[E]ven the most ardent student will not be using his or her connected device and broadband connection to attend classes and do schoolwork all day every day, and … library patrons use the broadband services at libraries for an enormous variety of purposes. We therefore find that it is only reasonable that schools and libraries be given the flexibility to allow the use of eligible equipment and services for other purposes when they are not needed for educational purposes in the first instance. We conclude that requiring that eligible equipment and services supported by the Emergency Connectivity Fund Program be used primarily for educational purposes strikes the right balance. It will ensure that such equipment and services are first and foremost used to facilitate remote learning, as intended by Congress, while also allowing them to be used for other purposes for the benefit of students, school staff, and library patrons," it says.

To target funding to individuals who lacked access during the pandemic, the draft item would "require schools to certify, as part of their funding application that they are only seeking support for eligible equipment provided to students and school staff who lacked access to connected devices sufficient to engage in remote learning. We will also require schools to certify, as part of their funding application that they are only seeking support for eligible services provided to students and school staff who lacked broadband services sufficient to engage in remote learning."

It adds, "We recognize that libraries do not typically inquire about the needs of their patrons before providing services. Also, we are unaware of device programs operated by libraries that are equivalent to the 1:1 device initiatives operated by schools. We find it reasonable to presume that library patrons who have adequate access to connected devices or broadband services will not seek devices or services from their local libraries. Therefore, we do not require libraries to make similar certifications to those made by schools with respect to meeting unmet needs."

The draft order would call for the opening of a 45-day initial ECF application window "as soon as practicable" for schools and libraries to seek support for eligible equipment and services purchased between July 1, 2020, and April 30, 2021. "Applicants may request support for equipment and services received after April 30, 2021 in the next filing window. We do this to make things clear and simple, while setting a date prior to adoption of this order to avoid encouraging last-minute, unnecessary purchases," it says.

In a statement, Sen. Ed Markey (D., Mass.), who authored the E-rate provisions of the 1996 Telecommunications Act, said, "The proposal released today is an important step towards ensuring the ‘homework gap’ does not grow into a more damaging learning and opportunity gap for our children, particularly those who live in communities of color, low-income households, and rural areas. We are now one step closer to deploying the more than $7 billion that was included in the American Rescue Plan for K-12 distance learning. This essential funding will help equip all of our children with the technology and tools they need to succeed and continue their studies from home. I thank Acting Chairwoman Rosenworcel for her hard work to ensure the Commission meets its statutory deadline and call on the full Commission to vote on this proposal without delay." —Lynn Stanton, [email protected]

MainStory: FederalNews FCC BroadbandAdoption Covid19

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