Some Commenters Say E-rate Expansion May Violate Communications Act
While the FCC received support for moving forward on a November proposal permitting schools and libraries to get E-rate support for off-premises Wi-Fi hot spots and wireless internet services (see 2311090028) many commenters raised questions. Commissioners Brendan Carr and Nathan Simington dissented on an NPRM, questioning the proposal's legal underpinnings, and several comments agreed. The comments were filed the same week as the U.S. Supreme Court considered the Chevron doctrine's future and how strictly regulators must adhere to statutory language (see 2401170074).
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The Schools, Health & Libraries Broadband Coalition and the Open Technology Institute at New America said the proposed expansion of the E-rate program could “dramatically improve students’ ability to participate in remote learning and enrich their education online,” in comments posted Thursday in docket 21-31. They noted it has become increasingly clear how important internet access is, especially for students. The E-rate program “is uniquely positioned to bridge the digital divide, which disadvantages millions of students across the country,” they said.
T-Mobile urged the FCC to classify service to hot spots as an E-rate category one service, which it did with school bus Wi-Fi (see 2310190056). In addition, the agency should “put schools and libraries in the driver’s seat to select the Wi-Fi hotspot services that best meet their needs,” T-Mobile said. The carrier warned against holding providers accountable for non-usage of hot spots: “When a school or library makes available a hotspot to a student or patron, service providers have no way to control or enforce its use.”
For NCTA, the proposal would commit significant E-rate funding “to a solution that cannot fully address household needs and could be viewed as redundant given the other programs dedicated to connecting whole families to the Internet,” the cable group warned. Instead, NCTA said other programs like Lifeline, the affordable connectivity effort and those that cable companies offer are “dedicated to connecting whole families” to the internet. NCTA also raised questions about whether the proposal is consistent with Section 254 of the Communications Act, “which only authorizes support to elementary schools, secondary schools, and libraries for educational purposes.”
The FCC should move forward with the proposal only if the ACP expires and Lifeline can’t be expanded to meet the needs of students, said the State E-rate Coordinators’ Alliance. “There is no emergency that must be addressed through more urgent action,” such as when the emergency connectivity fund was created during the COVID-19 pandemic, the group said, arguing that the earliest it should launch is the FY 2025 program year. The FCC would need time to establish “the applicable parameters,” add equipment and service to the eligible services list “and for applicants and service providers to educate themselves to ensure compliance,” the group said.
ACA Connects agreed that the proposal contravenes the language of Section 254. “Although ACA Connects shares the Commission’s goal of enabling remote learning, the NPRM’s proposals would be an unlawful expansion of the E-Rate program,” the group argued. Congress didn’t intend the term classroom “to be a limitless catch-all for any location where learning may occur.” Similarly, NTCA raised questions about the proposed expansion, including whether it violates the Communications Act. “Allowing the E-Rate program to fund Wi-Fi hot spots in communities that are already connected through support from the High-Cost USF program could substantially erode the public’s confidence in the integrity of USF, and invite concern from Congress itself,” NTCA said.
Better Alternatives
The Los Angeles Unified School District warned that Wi-Fi hot spots aren’t necessarily the most effective way to connect students. Individual cellular data plans' prices “are equivalent to the Wi-Fi hotspot costs,” the district said: The commission should broaden its definition of eligible services “to include, at a minimum, broadband services for LTE-enabled devices, multi-user wireless connections, and wireline broadband services to ensure that schools are able to reach all students … and to promote cost-effective choices.”
But Qualcomm supported the proposal. E-rate funds should provide low-income students with mobile devices and broadband connectivity “that their more fortunate classmates use all the time to access educational content and collaborate with each other and with teachers during the school day and outside of school hours,” Qualcomm said. Without funding for remote learning, “the homework gap will only widen and low-income students will continue to lag behind their peers who can afford connectivity and devices.”
A carrier serving tribal areas, Smith Bagley urged the FCC to move forward with the plan, especially given the ECF's pending expiration. “While the rest of the country has returned to some semblance of normalcy, Tribal Nations continue to recover from the physical, mental, and economic impacts of the pandemic and cope with overarching inequalities,” Smith Bagley said.