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Resolution on FCC Reform Divides NARUC Committee; Universal Service Fund Changes Less Controversial

WASHINGTON, February 15, 2009 – State regulatory commissioners are split on how strongly to express longstanding grievances with Federal Communications Commission processes. A resolution on reform of FCC management and practices dominated the agenda as the National Association of Regulatory Utility Commissioners continued its winter meeting Sunday.

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WASHINGTON, February 15, 2009 – State regulatory commissioners are split on how strongly to express longstanding grievances with Federal Communications Commission processes. A resolution on reform of FCC management and practices dominated the agenda as the National Association of Regulatory Utility Commissioners continued its winter meeting Sunday.

The resolution, sponsored by Washington State Commissioner Phillip Jones, has been amended multiple times NARUC’s staff subcommittee on telecommunications since it was introducted late Friday.

The original draft resolution was a straightforward, one-page document which welcomed changes at the commission by the new Obama administration, while calling attention to often-cited criticisms of the lack of transparency in operations, the slow pace of action on dockets and delay in open opening new ones, as well as barriers to intra-agency cooperation.

The tenure of former FCC Chairman Kevin Martin was notorious among industry observers for a lack of communication across the FCC’s bureaus and offices. A common criticism of Martin’s chairmanship was that bureaus were effectively forbidden from sharing information among themselves, or even with the other four commissioners or their staffs. Acting Chairman Michael Copps said reversing Martin-era restrictions is a high priority for his reform agenda.

The staff subcommittee met Sunday afternoon to vote on recommending the resolutions to NARUC’s telecommunications committee, which consists of 33 commissioners. The significantly revised draft included language praising Copps for his reform effort, with the caveat that many of the changes had been employed by previous chairmen and suggested by the other two sitting commissioners.

The subcommittee draft went on to specify in detail other NARUC concerns, including problems in the operation of Federal-State Joint Boards and a “lack of definitive action by the Commission on important issues both at a federal and state level” that results in many orders being “deemed granted” through “excessive” use of the forbearance process. Recent rulemakings and orders made it “apparent that the Commission needs to enhance its capabilities in…economics, engineering, and administrative law,” read one clause.

The subcommittee considered amending Sunday’s version to include among the complaints the frequency of ex parte presentations as an aspect of a rulemaking process that effectively minimizes the opportunity for public input. “The average consumer really has no way to come to Washington and meet with commissioners,” said one staff subcommittee member who supported the amendment.

But many members were unsure if such strong criticism would be constructive when NARUC is trying to improve relations between state commissions and the FCC. “I wouldn’t want them to come into [my state commission] and tell me how to do things,” said one member. Another was far more emphatic: “I’m amazed and appalled by [this resolution] when we’re getting into a mode where we can operate with a much more open dialogue [with the FCC].”

The subcommittee then junked the entire resolution, replacing it with a half-page substitute that acknowledged the new administration’s changes and Congress’ intention to review FCC procedure and resolved to support a public review process and offer NARUC’s assistance. The “watered-down” language passed the subcommittee by a vote of 7-4.

But when the full committee convened later in the day, Jones and co-sponsor Commissioner John Burke of Vermont returned with a less caustic, but equally specific, version of the resolution. It replaced the one which had been gutted by the staff subcommittee.

The substitute resolution prefaced the specific criticisms and suggestions by making reference to a 15-page letter sent last December by NARUC president Fred Butler to Susan Crawford, a University of Michigan telecommunications law professor who advised the Obama-Biden transition team on FCC matters. The letter emphasized the success of NARUC’s member commissions in promoting novel programs and solutions, many of which have often been successfully replicated at the federal level.

Butler’s letter also outlined an agenda for FCC reform in hopes that an Obama FCC would avoid missteps of commissions past that often led to court losses for the FCC, often after long and costly litigation. He suggested that the FCC return to the practice of using sworn, in-person testimony with cross-examinations in establishing a record for its decision-making, as well as holding public negotiation sessions with a transcript — practices the FCC has not used since the 1970’s, but still used regularly by state commissions.

Butler’s letter may have gotten NARUC “on the record” with the FCC, said Michael Moffet of Kansas. A resolution with specific suggestions would be redundant, he said. Florida’s Lisa Edgar agreed, suggesting that “less is more.” But Burke questioned the effectiveness of the weaker language. Asking his fellow commissioners if they should “give [the FCC] a road map…or tell them to do the right thing,” he noted with a hint of sarcasm: “Do the right thing hasn’t worked well in the past.”

California Public Utility Commissioner Rachelle Chong, a former FCC commissioner herself, said she was troubled by the tone of the Burke/Jones resolution. Accusing the FCC of being slow would be such a great idea when state commissions are often met with the same criticism, she said. “People in glass houses shouldn’t throw stones,” she said. And such a resolution would be poorly timed when acting chairman Copps is doing “very positive things,” she added.

But Burke said that the resolution wasn’t about demanding an agenda for the FCC, but letting the commissioners know what the NARUC committee thinks would be productive. “We don’t think we’ll wake up tomorrow and the world will be different on the 8th floor [or the floor on which the agency commissioners and their staffs are located]– but this is an opportunity that shouldn’t be missed.”

The committee also briefly discussed Chong’s broadband mapping resolution, and a resolution sponsored by Washington, DC, Commissioner Betty Ann Kane to endorse a pilot program expanding the FCC’s Lifeline and Link Up programs to cover broadband service.

Kane said that some perceived opposition to the resolution among the staff subcommittee came from confusion over the goals of the recently-passed broadband stimulus legislation.

The stimulus is about building networks, not making service affordable, she said. Universal service, whether for voice or broadband, is a “matter of social philosophy,” she added. And while some don’t believe in the program’s goals, Kane argued that there is “no argument that USF [for voice] hasn’t been successful.” She expected her resolution to pass the committee without a problem when it votes on Wednesday.

Andrew Feinberg is the White House Correspondent and Managing Editor for Breakfast Media. He rejoined BroadbandBreakfast.com in late 2016 after working as a staff writer at The Hill and as a freelance writer. He worked at BroadbandBreakfast.com from its founding in 2008 to 2010, first as a Reporter and then as Deputy Editor. He also covered the White House for Russia's Sputnik News from the beginning of the Trump Administration until he was let go for refusing to use White House press briefings to promote conspiracy theories, and later documented the experience in a story which set off a chain of events leading to Sputnik being forced to register under the Foreign Agents Registration Act. Andrew's work has appeared in such publications as The Hill, Politico, Communications Daily, Washington Internet Daily, Washington Business Journal, The Sentinel Newspapers, FastCompany.TV, Mashable, and Silicon Angle.

Universal Service

Experts Concerned About Connectivity After Emergency Broadband Benefit Fund Runs Dry

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Screenshot taken from CCA event

April 1, 2021 – Experts are concerns about the long-term implications of the $3.2-billion Emergency Broadband Benefit program (EBB) running out of money without a plan for what happens after.

The fund, created by Congress in December, provides up to $50 in a monthly internet discount for families and $75 for tribal lands to access broadband internet. The fund will cease when all the money is used up or within six months, whichever happens sooner.

Clare Liedquist Andonov, principal at Herman and Whiteaker, LLC, said Wednesday during the CCA mobile carriers show that if all people on Lifeline — an older FCC program that provides monthly discounts for eligible low-income subscribers for internet and telephone services – subscribe to the fund, the money will “be exhausted within about four months.”

John Nakahata, partner at Harris, Wiltshire and Grannis LLP, said both the EBB and Emergency Connectivity programs are simply short-term stimulus plans that are not designed to last long.

Andonov said she is concerned about what happens after such funding ceases to exist. “What happens after four months?” she asked. “Do you disconnect those people?” She said the infrastructure built to connect people online in the first place would go to waste if the EBB program ceased operations in a matter of months, alongside the administrative costs to run the program.

To combat the expenditure of EBB funding in the mere four months projected by Andonov, Senator Amy Klobuchar, D-MN), co-chair of the Senate Broadband Caucus, and House Majority Whip James Clyburn, D-SC, introduced comprehensive bicameral broadband infrastructure legislation on March 12 to expand access to affordable high-speed internet for all Americans.

“In 2021, we should be able to bring high-speed internet to every family in America — regardless of their zip code,” said a press release from Klobuchar’s office. “This legislation will help bridge the digital divide once and for all.” If passed, Cole said it would allow the EBB program to last for an entire year; but even then, one year is not enough, they say, as broadband should be accessible for people indefinitely.

To address this challenge, there is some $100 billion set for recently-introduced broadband infrastructure bills being considered in Congress. That money is spread between three bills that would change the nation’s definition of served and unserved people with broadband by dramatically upping the threshold for broadband speeds.

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Sen. Ed Markey Celebrates Telecom Act as Telecom Lawyers Tell Congress to Be Specific

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Photo of Sen. Ed Markey by NASA

February 2, 2021 – Democratic Sen. Ed Markey’s communications policy focus this Congress will be on net neutrality, children and climate change, the long-serving Massachusetts lawmaker said at a Federal Communications Bar Association event Tuesday to celebrate the 25th anniversary of the Telecommunications Act.

Reminiscing on the 1996 landmark legislation during his keynote, Markey focused on broadband accessibility and affordability, especially for children. He praised the Federal Communications Commission’s E-rate program, which subsidizes broadband access for schools and libraries.

But Markey also linked broadband to concern about climate change, highlighting the concern about how miles of broadband cable conceivably could be under the sea due to receding coastlines.

Most of all, he pushed on net neutrality. He said it was a major issue, and much-needed to prevent big companies from stifling smaller competition or consumers’ access to the internet.

Senator Markey’s remarks led into a panel discussion about the impact of the Telecommunications Act since it became law.

During that discussion, former FCC Commissioner Michael O’Rielly said that Congress needed to be more specific about what it does or doesn’t want the FCC to do. Too little specificity can lead the FCC to write bad rules that Congress doesn’t like.

John Nakahata, who worked for FCC Chairman Reed Hundt at time of the Telecom Act’s passage, agreed. Too much ambiguity by legislators has caused huge headaches for the FCC. For example, the very issue of net neutrality exists because of uncertainty about whether broadband should be classified as a Title II telecommunication service: It wasn’t, and then it was under former president Barack Obama, and then it wasn’t again.

O’Rielly said that more leeway was granted to the FCC in the past because Congress had faith in their ability to enact legislation. But legislators’ trust in the FCC has eroded.

Randolph May, president of the Free State Foundation, said that FCC regulation should look like antitrust law. He said it should be through incentives that competition is promoted, rather than through Title II regulation.

Former FCC chief of staff Ruth Milkman expressed desire to see funding for FCC programs, such as the E-rate program, used to maximum benefit where they are needed most.

The panelists agreed that legislation needs to address where technology is headed, rather than looking backward to solve past problems.

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With Universal Service Fund Contributions at 32 Percent, Experts Debate Its Sustainability

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Photo of South Dakota Public Utility Commissioner Chris Nelson from Hub City Radio

January 29, 2021 – With contributions into a program intended to extend basic telecommunications services to all Americans now adding an additional 32 cents on top of every dollar of telecommunications service, experts on January 15 debated whether, and how, the Universal Service Fund can be sustained.

There seem to be two proposed solutions to what all agreed was an untenable status quo: First, Congress could appropriate USF out of general revenues. Alternatively, mandatory contributions into the USF could be broadened beyond voice telecommunications services and begin to level fees on broadband internet.

Either way, change seems to be coming, said the four panelists mulling the program at a forum convened by the Federal Communications Bar Association.

Currently, the USF program only requires telecommunications and voice-over-internet protocol providers to collect a percentage of revenues. That percentage amount is set quarterly by the Universal Service Administration Company, a non-profit entity that has been delegated this task by the Federal Communications Commission.

The USF fund administered by USAC pays for programs that expand telecommunications and broadband to rural areas, and also to lower-income Americans, schools and libraries, and rural healthcare.

Now there is a 31.8 percent fee added to all voice telecom bills

In December, the FCC released a public notice that the January through March 2021 contribution was 31.8 per cent of user revenues, a new record. Companies can decide whether to pay it from their own reserves or pass it on to subscribers.

Many agree the program, which is runs about $10 billion per year, is unsustainable. That’s particularly so with voice service revenues declining.

Chris Nelson, vice chairman of the South Dakota Public Utilities Commission, said taxing broadband service would be acceptable because “we tax everything else.” He alluded to the taboo call for taxing the internet and said that he struggled to make sense of it. He argued that a higher number of landline telephone users are elderly. It doesn’t make sense to charge them more, he said.

Nelson, who is part of a bipartisan organization that has been pressing for USF reform for years, said a hybrid model would work best. That is, half of the contribution can come from residential connections (at a cost to the customer about 55 to 60 cents) and the other half can come from enterprise, at about 8 percent of revenues.

Part of the reason for the increase is what some see as the inverse relationship between telecom revenues and the contribution — as telecom revenues decline, the relative contribution amount increases. John Windhausen, executive director of the Schools, Health and Libraries Broadband Coalition, said telecom revenues have declined from $67 billion at one point to $34 billion, pointing primarily to the decrease in wireless revenues over the years. Windhausen estimated that expanding the USF base to include broadband revenues would push the contribution down to 2.5 per cent. That won’t affect broadband adoption, he said.

“Including the broadband revenues into the base provides a more stable funding base, so the base of broadband revenues and telecom revenues together is increasing, and there’s even the possibility that the contribution factor would come down in the future as the base of broadband revenues continues to increase,” Windhausen said.

Windhausen added that Congress can supplement this proposed model with appropriations, but said that an appropriation model shouldn’t wholly replace the current fund.

Some say that the revolving Universal Service Fund should be replaced by congressional appropriation

On the flip side, some are clamoring for congressional appropriations, which proponents argue would allow for more stability from broad taxation and would open up the fund to more legislative oversight. AT&T and former FCC chairman Ajit Pai have pushed for this model.

Earlier in January, Pai suggested $50 billion from the record-setting windfall of the ongoing C-Band spectrum auction should be put into the USF for the next five years.

Mary Henze, assistant vice president of federal regulatory affairs at AT&T, doubled-down on this model as a panelist. She said the USF should move to have a congressional budget line item. That was a position also supported by Daniel Lyons, professor at the Boston College Law School who teaches telecom law. He has historically pushed that position, he said.

Lyons said the program would be subject to direct congressional oversight, which would address any fraud or abuse issues in the existing system through inquiries and hearings. He also said direct appropriations would avoid the “market distortions” of trying to tax some goods and not others to fund the program, such as a surcharge on connections or broadband service.

Screenshot from the FCBA event

“They encourage strategic behavior by consumers,” said Lyons, referring to efforts to make communications services fall outside the jurisdiction of the FCC.

Henze said part of solving the market distortion problem is to bring technology companies into the base to spread the contribution out further so it is ultimately less harmful to individual companies or consumers.

The timeline for taxing broadband would also be a problem, Henze argued. Whereas she said it could take companies another year to make that adjustment, Congress, which is now be controlled by Democrats, can quickly put appropriations on budget. Windhausen suggested potentially asking Congress to give the FCC a deadline to come up with a new contribution mechanism in 18 months.

Opponents of making it a congressional budget item included Nelson. He conceded that his opposition come down to politics: Turnover of members of Congress could mean radically different views on appropriations from year to year.

If your company has any questions regarding the steep hike in USF contribution factor or would like to engage in a Communications Taxes & Fees “Optimization” to potentially minimize the economic impact of the ever-skyrocketing Federal USF contribution costs and end user pass-through surcharges, please contact Jonathan S. Marashlian of The CommLaw Group at jsm@commlawgroup.com or 703-714-1313.

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