Deploying Billions of Broadband Dollars Tops FCC’s To-Do List

Federal Communications Commission chair Jessica Rosenworcel will kick off the new year still lacking a Democratic majority, but she insists that the agency’s evenly split composition won’t hamper its work.

President Joe Biden’s pick for the open Democratic seat on the five-member commission, Gigi Sohn, is unlikely to advance from the Senate Commerce, Science, and Transportation Committee, let alone the full Senate, before the end of the congressional session.

“We’ve been busy; we’re going to continue to be busy, and I don’t intend to slow down,” Rosenworcel told reporters during a press conference after the agency’s December meeting.

The Senate Dec. 7 confirmed Rosenworcel to lead the FCC for a new term, which will run until 2025.

Broadband Mapping

One big lift the split agency will be tasked with is implementation of billions of dollars of new broadband funds. Other agencies deploying broadband funds also will rely on the FCC’s maps, under development now, to target unserved and underserved areas of the country.

“We’ve seen Congress dole out a lot of money for new broadband infrastructure and there will be a lot of implementation questions,” said former Republican FCC general counsel Tom Johnson, a partner at Wiley Rein LLP.

“These are large programs, large sums of money, where a lot of federal agencies for the first time are going to have to determine who is eligible, what are the eligibility criteria, how do you dole out these resources,” Johnson added.

Congress, in the Infrastructure Investment and Jobs Act, allocated an additional $14.2 billion to supplement a $3.2 billion FCC program created during the Covid-19 pandemic to help low-income households pay for broadband services and devices.

The temporary Emergency Broadband Benefit Program will be replaced by the permanent, revamped Emergency Connectivity Program Dec. 31.

The FCC in the meantime is working on the logistics of the transition period, complicating an already challenging enrollment process.

Sign-ups for the program have lagged due to a general lack of awareness, lack of trust in government, language barriers, and confusion around the complexity of the enrollment process, FCC outreach partners say.

The infrastructure law also allocated $2.75 billion to the FCC to fund grants over the next five years for programs to boost digital equity, inclusion, and literacy programs.

The commission also will play a major role in creating the maps it and other agencies such as the Commerce Department will rely on to identify where broadband subsidies are needed.

Congress gave $42.5 billion to the U.S. Department of Commerce’s National Telecommunications and Information Administration to award broadband grants to states. The U.S. Department of Agriculture also has a broadband grant program.

“The FCC can have a leading role in standardizing these policies by coordinating with the other agencies,” Johnson said.

Republican commissioner Brendan Carr said that oversight of the new funding will be the most important task.

“Oversight and keeping an eye out for waste, fraud, and abuse as we implement these programs is going to be vitally important, always but particularly going into next year,” Carr said after the agency’s December meeting.

Inaccurate FCC broadband maps have historically marred efforts to deploy funds.

Under a provision in the 2020 Broadband Deployment Accuracy and Technological Availability (DATA) Act, the FCC was directed to create a “broadband serviceable location fabric,” which will show all locations in the U.S. where internet service can be installed.

The FCC Nov. 9 designated CostQuest Associates as the Broadband Serviceable Location Fabric contractor. However, a Government Accountability Office protest filed by a losing bidder on Nov. 19 is expected to delay the agency’s ability to get started by 100 days.

Net Neutrality Revival

Once Rosenworcel secures a Democratic majority, the FCC is seen as likely to reclassify internet service providers as common carriers under Title II of the Communications Act, and reimpose net neutrality rules that the GOP-controlled commission had scrapped.

Rosenworcel has made clear that reclassification would require a new rulemaking process under the Administrative Procedure Act.

That would allow the agency to develop an updated public record reflecting the changes in technology, state law, and consumer usage since the initial 2015 decision, Rosenworcel said.

Proponents of net neutrality are highly likely to call for a flat ban on zero-rating in the new rulemaking, Boston College Law School professor Daniel Lyons said.

Under zero-rating, internet service providers offer free internet access under certain conditions, such as permitting the access only to certain websites. Rosenworcel has declined to comment on whether she would pursue a ban on zero-rating.

A new rulemaking process also gives net neutrality opponents a chance to weigh in against the move.

The main thing the opponents will raise in the new comment period is that “if it ain’t broke, don’t fix it,” Lyons said.

Opponents will emphasize “the gloom-and-doom events” Democrats said would occur but didn’t happen after the 2017 rollback of the earlier rules, Lyons added.