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Lifeline Uncertainty Continues as FCC May Take Time to Address Court Remand

Stakeholders are debating how Lifeline is regulated after the U.S. Court of Appeals for the D.C. Circuit remanded to the FCC rules on its authority to make broadband eligible for the program. That ruling came in partly upholding the agency's 2018 net neutrality order reclassifying broadband as a Title I information service (see 1910010018). The 2-1 court decision points up uncertainty with Lifeline, stakeholders agreed in interviews this month.

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Lifeline provider TruConnect believes Oct. 1's Mozilla v. FCC eliminated FCC authority to establish and enforce broadband minimum service standards under the 2016 Lifeline order, said counsel Judson Hill in filings to docket 11-42 on meetings with FCC officials. Hill, a former GOP Georgia legislator, also spoke with us. USTelecom Senior Vice President Patrick Halley says the FCC doesn't lack authority to regulate broadband in Lifeline, but the court found it didn't sufficiently address the matter (see 1910100059). Because it wasn't vacated, "the FCC will be in no rush to do this," predicted Harold Feld, Public Knowledge senior vice president, in an interview. So resolving the issue may take time, Feld said.

An FCC spokesperson Tuesday said the court had not yet issued its mandate on the remand.

Chairman Ajit Pai acknowledged industry is awaiting answer on a petition (see 1906280012) to hold off increasing broadband minimum service standards, and agency staff is aware of the pending Dec. 1 deadline for the threshold to increase. He answered our question Friday after the commissioners' meeting. The FCC continues to roll out a national verifier program that some worry inadvertently screens out eligible consumers from Lifeline (see 1910100007). An item on circulation since August seeks new ways to curb waste, fraud and abuse (see 1908190028).

Commissioner Jessica Rosenworcel noted the remand was partly because "the agency disregarded how reclassification impacts" Lifeline users. "The FCC is guilty of more than indifference" as it "cut access to Lifeline on tribal lands," she said in a statement to us. "Thankfully, the court sent this effort back to the agency, too. But in the meantime, the FCC still has open a proposal to cut as much as 70% of the remaining Lifeline program" through a 2017 NPRM and the item circulated in August. "This is cruel," Rosenworcel added. "Instead of using our policymaking power to threaten their access to communications, the agency should throw out this proposal and start over."

PK's Feld suggested the agency issue a Further NPRM or public notice to seek comment. He wants broadband returned to Title II telecom service classification.

Technology Policy Institute Research Fellow Sarah Oh is interested to see comments if the FCC issues another NPRM on remanded Lifeline broadband matter. "Whatever they do, they'll need very good reasons for changing Lifeline," Oh told us. She predicted the agency will issue a broader Lifeline order next year: "This is the beginning of a bigger conversation on Lifeline."