FCC Seen Approving Wi-Fi E-rate Order 3-2 With Limited Tweaks

Commissioners Brandon Carr and Nathan Simington dissented in November on the NPRM asking about an expansion of the E-rate program (see 2311090028). They also dissented on a declaratory ruling clarifying that the use of Wi-Fi on school buses is an educational purpose eligible for E-rate funding (see 2310190056).

During a House Communications Subcommittee hearing last week (see 2407080039), Carr said that approving the E-rate order would mean the FCC was exceeding its legal authority “in significant ways,” especially in light of the U.S. Supreme Court’s June decision in Loper Bright Enterprises v. Raimondo, ending Chevron deference for regulators' decisions (2407010036).

The expected dissents mean that Chairwoman Jessica Rosenworcel has additional incentives to accommodate any concerns of Democratic Commissioners Geoffrey Starks and Anna Gomez, lawyers active in the proceeding said.

The FCC ought to increase the hot spot budget above the three-year $630 figure “because that budget figure was based on pandemic prices that are no longer available,” Schools, Health & Libraries Broadband Coalition Executive Director John Windhausen said Wednesday. “We are also hoping that the commission gives schools and libraries greater flexibility to use their budgeted amount on whatever functionally equivalent technologies work best for their local community, whether cellular hot spots or fixed wireless” or citizens broadband radio service-based services, he said.

SHLB understands “there are political considerations, but we also want to close the homework gap for as many students as possible and nontraditional technologies could be the key to bringing affordable wireless service to rural and low-income communities,” Windhausen said.

With the Universal Service Fund at or near its limit and a contribution factor above 34%, “it seems strange to be trying to expand E-rate without meaningful congressional reforms,” said Jonathan Cannon, R Street policy counsel-technology and innovation and a former acting adviser to Simington. Expanding E-rate also isn’t the most efficient way of closing the digital divide, he said: The FCC should “address existing programs before growing E-rate even further.”

With Congress considering USF revisions, “there's real opportunity to address the chair's concerns without exceeding the FCC's existing authority,” Cannon said.

“We want the world to be connected -- that goal is wholly supportable,” a spokesperson for the Wireless ISP Association said in an email. In this case, “we believe the commission lacks the specific authority, especially since Loper Bright.” WISPA previously questioned the FCC's legal authority to approve the order (see 2407100028).

Assuming the draft item reflects Rosenworcel's “preferred scope, I wouldn't expect major changes since the dissenters are likely focused on legal concerns rather than about limitations on devices,” emailed Joe Kane, Information Technology and Innovation Foundation director-broadband and spectrum policy. Kane said he doesn’t expect an expansion of the rules to include fixed wireless or CBRS: “It's more likely that any changes would tinker with smaller things, like the ethernet port requirement within the universe of Wi-Fi hotspots.”

Headed into the fall of an election year, the commission historically has teed up “easy 5-0 votes,” Cooley’s Robert McDowell said. “But much of the supply of easier unanimous and bipartisan votes was expended while the FCC was at 2-2 awaiting the third Democratic appointee,” he said: While a likely divided vote is “a bit unusual … the end result is not that surprising given the ripeness of this proceeding.”