How the FCC could save the Affordable Connectivity Program

It might be April Fools' Day. But broadband advocates aren't joking about the impending end of the Affordable Connectivity Program (ACP) – nor about the fact that they believe it's within the FCC's power to prevent the ACP's funding lapse.

Indeed, with April marking the official last month of full funding through the ACP, before the program offers partial benefits and ultimately ends in the month of May, and with Congress neglecting to include ACP extension funding in its recent spending package, some broadband advocates are looking to the FCC for a fix.

Specifically, a number of former FCC officials are pointing to expanding the Lifeline program, under the Universal Service Fund (USF), as the way to save a version of the ACP, and prevent tens of millions of people from losing access to the monthly broadband subsidy. While the ACP provides a $30 monthly broadband subsidy (up to $75 on tribal land), Lifeline provides $9.25 per month for telecommunications services (up to $34.25 per month on tribal land).

"The agency has a lot more authority and power, maybe not to fix this 100% in the interim, but at least to sort of tamp down on the pain of people losing their Internet connection," said Gigi Sohn, broadband advocate and spokesperson for the Affordable Broadband Campaign. Sohn worked for the FCC under former Chair Tom Wheeler, before being nominated by President Biden to serve as Commissioner and ultimately withdrawing from consideration.

Related:ACP enrollments end today – now what?

One way the FCC could do that was outlined in a recent petition for expedited rulemaking filed by Conexon Partner Jonathan Chambers, who also previously served at the FCC. In that petition, Chambers urged the Commission to "initiate an expedited rulemaking proceeding to consider adopting a Home Broadband benefit as part of the Lifeline program to offset the adverse effects that will otherwise be caused by exhaustion of ACP funding."

Chambers' petition points to language in the 1934 Communications Act to underscore the FCC's authority on this matter: 

"Congress has charged the Commission with the responsibility to develop and implement policies for 'the preservation and advancement of universal service' and that '[c]onsumers in all regions of the Nation, including low- income consumers ... should have access to ... services ... that are reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas'," states the petition.

Related:ACP, excluded from House spending package, creeps closer to death

According to Chambers, the FCC could accomplish this in part by bumping the subsidy for a new Lifeline program-turned-"Home Broadband Benefit" by an additional $20.75 per month on non-tribal lands (plus the current $9.25 Lifeline subsidy) to equal the current ACP benefit of $30; and by bumping the tribal benefit to $55. The petition recommends initially keeping Lifeline's eligibility requirements (household income at 135% or less than the federal poverty line) and collecting data on increasing it to 200%, in line with the existing ACP. Chambers' petition also recommends the new benefit only apply to fixed wireline or fixed wireless service of 100 Mbit/s down by 20 Mbit/s upstream.

That fix wouldn't account for all ACP participants – particularly with a significant portion currently using the ACP for mobile. But it would help many.

"Consideration of broader eligibility should not slow the delivery of relief right now. To be clear, Conexon recognizes that the limited reform it is proposing will not deliver a subsidy to all current ACP recipients. It will simply help those most in need," Chambers noted in the petition.

Greg Guice, another former FCC official who worked on USF and currently works with Sohn on behalf of the Affordable Broadband Campaign, said he agrees the FCC could move to amend the current Lifeline program in order to save a version of the ACP.

Related:The Divide: Why the Affordable Connectivity Program is key to closing the digital divide

"I certainly hope as the Chairwoman looks over her list of priorities that this moves up the list rapidly," said Guice, who also serves as chief policy officer for the Vernonburg Group. "Lifeline doesn't serve the exact same constituency, but it does serve a low-income constituency. And it is a place where the FCC could step in and save those families from being disconnected from their broadband service."

Light Reading reached out to the FCC for comment on the agency's willingness to consider this option but did not receive a response as of this writing.

Contribution reform

Regardless of whether the ACP gets absorbed into the USF in full or as a smaller version of itself, just about everyone agrees the USF is in dire need of contribution reform.

Broader reforms will take time, and potentially require additional authority from Congress (for example, should the FCC want to assess Big Tech company revenues). But the FCC can and should start a proceeding now to consider adding broadband Internet access service (BIAS) revenues to the contribution base, which would help support a larger Lifeline/ACP program, argued Sohn and Guice.

"The FCC needs to act. They should act now. And we know where they can act is by including broadband revenue," said Guice.

Notably, FCC Chairwoman Jessica Rosenworcel has gone on the record in congressional correspondence to express opposition to including broadband providers in the USF contribution base. In a letter to Sen. Ben Ray Luján (D-NM) earlier this year, she said "expanding the USF contribution base by assessing broadband would result in an increase in the financial burden on consumers."

But according to Sohn, more data is necessary – and would surface in a proceeding.

"Rather than coming to a conclusion (perhaps based on just one study) about how much applying the Universal Service fee to BIAS would cost consumers, the FCC should have a proceeding so it can get data from a variety of sources on the issue. And based on the record of that proceeding, it can come to a decision. That would be sound agency practice," she said.

Furthermore, added Guice, when it comes to USF reform, broadband revenues are "the most natural, the most studied, the easiest to get in ... in a way that is accountable, auditable," he said. According to his own "back-of-the-envelope" math, "it's only the broadband-only households that are truly benefiting by not contributing," he said.

Beyond reforming Lifeline and USF, another thing the FCC can do to stop the ACP benefit from going away, said Sohn, is exercise its power of persuasion.

"I remember when the pandemic started, [former FCC] Chairman Pai called up the ISPs and said, 'please do not kick people off their Internet during this pandemic time.' The Chairwoman could do the same. She could pick up the phone, and I expect she will, and say, 'ISPs, you know, we're working on this. We're going to fix this. But in the meantime, I need you to keep those ACP recipients enrolled'," she said.

"It is uniquely in the FCC's power to save the subsidy," added Sohn. "It's not a matter of whether the FCC has the tools. It's a matter of whether they have the will."