The Federal Communications Commission’s Wireline Competition Bureau waives certain provisions of rules governing the internet service offering, standard rate, provider participation, and election notice requirements for the end of the Emergency Broadband Benefit (EBB) Program as a result of the text in the Infrastructure Investment and Jobs Act. The Bureau also provides additional guidance to help consumers, participating service providers, program partners, and other stakeholders prepare for the transition from the EBB Program to the Affordable Connectivity Program. This guidance covers:

1. The transition of EBB providers to the Affordable Connectivity Program.
2. The timing of the enrollment freeze for the EBB Program and the start of enrollments for the Affordable Connectivity Program. Starting at 6:00 p.m. (EST) on December 30, 2021, the National Lifeline Accountability Database (NLAD) will be closed for purposes of subscriber transfers and the addition of new subscribers, and service providers will no longer be able to enroll qualified consumers in the EBB Program. The NLAD will reopen for subscriber transfers and the addition of new subscribers to the Affordable Connectivity Program on December 31, 2021.
3. The continued access to the paper and online EBB Program applications.
4. The treatment of pending applications for the EBB Program on and after December 31, 2021. The FCC strongly encourages consumers to submit their application for the EBB Program and enroll with a service provider well in advance of the freeze in EBB Program enrollments. If a household has a pending EBB Program application after EBB Program enrollments cease, regardless of whether the application was submitted in the application portal or via a mailed paper application, that household can continue to rely on that application for purposes of an eligibility determination and enrollment in the Affordable Connectivity Program.
5. The households that qualify for the 60-day transition period.
6. The reverification process for certain households enrolled in the EBB Program. The majority of legacy EBB Program households will not need to reverify their eligibility to continue to receive the Affordable Connectivity Program benefit after the end of the transition period. USAC will conduct the reverifications and necessary de-enrollments for impacted households that were deemed qualified for the EBB Program through the National Verifier. USAC will also conduct the reverification and necessary de-enrollments for impacted households that were deemed qualified for the EBB Program through a service provider approved alternative verification process, if the service provider informed USAC that it will not continue using its approved alternative verification process for the Affordable Connectivity Program.
7. The service provider consumer notification responsibilities about the upcoming program changes. The FCC directs: 
   • USAC to notify all households enrolled in the EBB Program about the upcoming program changes and also update the relevant websites to include information about these changes.
   • Service providers with EBB Program households to communicate with those households about the upcoming changes. At a minimum, this information will include: (1) the change in the program name to the Affordable Connectivity Program; (2) the effective date of December 31, 2021 for the new program; (3) the continued availability of their current subsidy amount during the 60-day transition period; (4) the beginning and end dates of the 60-day transition period; (5) the subsidy amounts available under the Affordable Connectivity Program after the 60-day transition period; (6) that the subscriber may switch service offerings at any time; and (7) that the subscriber will receive additional information if they are required to take any steps to retain any benefit after March 1, 2022.

In March 2021, Recon Analytics conducted a demographically representative survey of 1,000 Americans using internet and cell phones, asking them about their opinions and attitudes around universal access, funding mechanisms, conduct, and usage. When it comes to broadband in the US, Americans overwhelmingly support two ideas. First, they agree that fast broadband should be available to every American at prices they can afford. Second, when presented with options for subsidizing broadband for those who can’t afford it, Americans overwhelmingly agree that companies that benefit from more Americans being connected to the internet should help defray the cost of subsidizing broadband for consumers who can’t afford it. More than 78 percent of respondents agreed that broadband should be available to every American, with broad support across large parts of the US. Interestingly, Americans who do not have what they consider broadband are less supportive of the idea of broadband for all. This finding, mirrored in other studies, indicates that any broadband infrastructure program must include an educational component if the administration is serious about getting all Americans online. There is also significant disagreement on what is considered broadband. The median American considers 50/5 Mbps as broadband, while almost roughly 29 percent consider Gigabit speeds to be broadband.

[Roger Entner is the founder and analyst at Recon Analytics.]

This Beyond Telecom Law Blog entry highlights the current rural broadband funding opportunity presented by the $1.15 billion “ReConnect” program administered by the US Department of Agriculture’s (USDA) Rural Utilities Service (RUS). Under the Funding Opportunity Announcement for its third round of Reconnect funding (ReConnect III), the RUS will be awarding loans and grants to construct, improve, or acquire facilities needed to provide broadband service to rural areas. The application filing window opened on November 24, 2021 and closes on February 22, 2022. While the RUS ReConnect program has rigorous accounting, grant application and security requirements, it represents a significant, near-term rural funding opportunity, and may be well-suited to certain state and local governmental entities, cooperatives, tribal authorities, and broadband providers, as well as public-private partnerships.

When Hillsboro (OR) officials first announced the city-owned high-speed internet service in 2019, they thought it would take about 10 years to roll out. Now they said half of all addresses in Hillsboro will have access to HiLight between 2024-25. The service first launched to about 800 neighbors about a year ago, but officials have updated their plan to expedite the process. HiLight officials plan to complete the rollout by 2027. HiLight offers city residents 1 gigabit per second for $55 per month. Residents who qualify for low-income assistance can purchase that for as low as $10 per month. Originally, the City of Hillsboro planned to spend between $28 million and $32 million on the rollout. They now plan to spend $17 million more than that after securing an additional $14 million from the Gain Share program and $3 million from the federal American Rescue Plan. And when it is finally complete, it’s expected all 38,000 Hillsboro households will have access to this internet.

An unexpected perfect storm of public policy variables is gathering and it could cause America’s 5G spectrum pipeline to run dry by year’s end. Under the leadership of newly-confirmed Chairwoman Jessica Rosenworcel, our former agency, the Federal Communications Commission, is currently winding down a spectrum auction that will supply lifeblood to America’s emerging 5G ecosystem while generating nearly $22 billion in federal revenue. Unfortunately, this is the last scheduled auction of its kind. At the same time, infighting between the FCC and Federal Aviation Administration (FAA) has frozen 5G operations in a recently auctioned parcel of airwaves, the “C-band,” due to concerns over alleged harmful interference to aircraft electronics. Furthermore, the recently signed infrastructure law set aside other precious spectrum for two years of study. Wireless carriers had been counting on these frequencies to help the U.S. win the global race to 5G and close the digital divide. But with two tranches of critical spectrum suddenly sidelined, America has created for itself a perilous spectrum gap. The FCC must quickly refill the spectrum pipeline at this crucial moment in the global competition for technological leadership. Let’s promote essential infrastructure, fix a supply chain gap, close the digital divide and generate revenue for taxpayers in the process. Any hesitation will stunt America’s growth and hand our opponents a strategic advantage.

[Mignon Clyburn, a Democrat, served as a commissioner of the FCC from 2009 to 2018, as Acting FCC Chair in 2013 and as co-chair of the Biden-Harris Innovation Transition Team. Robert McDowell, a Republican, served as a commissioner of the FCC from 2006 to 2013, and is a partner at Cooley LLP and a senior fellow at Hudson Institute.]

Shining a light on failed antitrust policy through a review of five mega mergers in the media and telecommunications industry: Comcast and NBCUniversal; AT&T and DirecTV; AT&T and Time Warner; Charter, Time Warner Cable and Bright House; and Disney and Fox. Each case study details the history and aftermath of these mergers, contrasting the companies’ promises of consumer benefits and pro-competitive outcomes with the post-merger realities, including higher prices, reduced choices, and harms to writers. The report concludes with policy recommendations to reform the merger review process and increase antitrust enforcement efforts:

• Codify an alternative to the consumer welfare standard that clearly prioritizes the maintenance of competitive market structures for consumers, competitors, and new entrants.
• Reintroduce structural presumptions and bright-line rules in vertical and horizontal mergers, including a presumption against dominant firms acquiring nascent or potential competitors. Shift the burden of proof onto merging parties, minimize weight given to “efficiencies” arguments, and eliminate the use of behavioral conditions in merger approvals.
• Lower barriers to prove antitrust violations including greater deference to direct evidence of market power or anticompetitive effects, and establish that erroneous non-enforcement is a greater threat to competition than erroneous enforcement.
• Conduct regular merger retrospectives and market investigations. Such investigations must allow for corrective measures up to and including structural separations and unwinding mergers proven anticompetitive after the fact.
• Review effects on workers in every merger and market investigation. Antitrust law and rules should include specific guidance for evaluating labor market effects and monopsony power.
• Enhance enforcement against abuses of dominance such as self-preferencing, discriminatory conduct, tying, and predatory pricing.
• Increase funding for antitrust enforcers and empower them with clear jurisdiction to regulate anti-competitive behavior in concentrated markets.

After years of broadband subscriber losses, larger telecom companies are poised to see subscriber gains in the 2023 to 2024 time frame, according to researchers at investment bank Cowen. This will occur as the telecom companies complete “record-setting” fiber broadband deployments. But the cable companies’ broadband market share will decline only slightly, from 60 percent today to 58 percent in 2027, the researchers argue. Meanwhile, the size of the broadband market will increase. The researchers estimate that the telcos will build broadband to 38 million homes by 2026 when they will have fiber broadband available to 80 million homes. By 2025, Cowen expects 75 percent of net broadband additions to be served by fiber-to-the-home. The researchers also note that cable infrastructure supports an “affordable pathway” to 10 Gbps speeds to compete with fiber broadband and that the total addressable broadband market will expand as broadband becomes increasingly critical and as $130 billion or so in government funding becomes available for broadband. The researchers predict 97 percent broadband take rates for occupied homes (90 percent of total homes) by 2027.