Part 4 of the Keller and Heckman Infrastructure Act Series

This is our 4^th entry on the  major provisions of the Infrastructure Investment and Jobs Act (“the IIJA” or “the Act”), which allocates $65 billion to support various broadband initiatives. We previously examined the $42.45 billion Broadband Equity, Access and Deployment (“BEAD”) Program and the $1 Billion Middle Mile Grant Program, each of which focuses on deploying broadband networks to unserved and underserved areas. This entry reviews the Act’s program aimed at making broadband services more affordable and accessible through a $14 billion subsidy  for low-income households.

Emergency Broadband Benefit Program Renamed and Refunded

Essentially, the  Affordable Connectivity Program (“ACP”) expands and makes permanent the temporary Emergency Broadband Benefit (“EBB”) program created in response to COVID-19.  Under the ACP, participating broadband providers will receive up to $30/month to provide discounted broadband service to low-income households (households on tribal lands and in “high-cost areas” are eligible for up to $75/month). The EBB provided $50/month, but with more stringent end-user qualifications.

Broadband providers can also receive up to $100 per household for the purchase of a connected device from the provider, such as a laptop, tablet or desktop computer. Smartphones do not qualify.

The ACP will be subject to the regulations of the Federal Communications Commission (“FCC”) and administered by the Universal Service Administrative Company (“USAC”). On November 18, 2021, the  FCC issued a Public Notice seeking comments on how to implement the new program requirements. Initial comments were due December 8, 2021, with reply comments due December 28, 2021.

Eligible Broadband Providers

As with the EBB, broadband provider participation in the ACP is voluntary. A “participating provider” is defined as a broadband provider that is either designated as an eligible telecommunications carrier (“ETC”) or a provider that seeks approval from the FCC to participate in the program. As with the EBB, the FCC is proposing to allow ETCs and their affiliates to simply file information with the Universal Service Administrative Company (“USAC”) to participate in the APC; obtain approval to participate in the states where they have secured ETC status.

Similarly, the FCC is proposing that all existing EBB Program providers need not file or resubmit a new application to participate in the ACP; these providers need only resubmit their ACP election notice to USAC. A provider that did not participate in the EBB Program and is not an existing ETC or affiliated with an ETC would need to file with the FCC for approval of an application. In addition, as with the EBB, the FCC is proposing that any eligible broadband provider that maintains an existing low-income program offered as of April 1, 2020, is eligible for automatic approval from the FCC for ACP participation.

Consistent with the EBB Program provider election notice process, new providers must possess registrations for the FCC Registration System (CORES), FCC Registration Number (FRN), Service Provider Identification Number(s) (SPINs), Study Area Codes (SACs), System for Award Management (SAM), Employer Identification Number (EIN), Tax Identification Number (TIN) and/or Dun & Bradstreet DUNS number.

Eligible Households

The FCC is proposing and seeking comment on household eligibility criteria, including the following:

• Household income is at or below 200% of the Federal Poverty Guidelines for a household of that size (the EBB had been set at 135%);

• At least one person in the household receives benefits from one of the following federal assistance programs: Medicaid, Supplemental Nutrition Assistance Program, Supplemental Security Income, Federal Public Housing Assistance, or Veterans and Survivors Pension Benefit;

• At least one person in the household is in the free and reduced-price lunch program or the school breakfast program (including the Community Eligibility Provision);

• At least one person in the household has received a Federal Pell Grant in the current award year; or

• The household is eligible for an existing qualified low-income program offered by a broadband service provider

Households participating in the FCC’s Lifeline program may simply opt-in to a plan provided by their current mobile or fixed broadband provider  or  enroll in the ACP.  The FCC is proposing that households that are not currently enrolled in Lifeline  apply for the ACP through the National Lifeline Verifier.

The Act decouples the ACP from COVID-19; households that qualified for the EBB due to a substantial loss of income because of a job loss or furlough since February 29, 2020, or by meeting the eligibility criteria for a participating provider’s COVID-19 program, must apply to qualify for the ACP at the expiration of the 60-day transition period discussed below. Other legacy EBB Program households will not need to reverify their eligibility to continue to receive the ACP benefit after the end of the transition period.

Transition Period from EBB to ACP

End-user enrollments for the ACP begin on December 31, 2021 (the “effective date”). The Act provides for a 60-day transition period for “households that qualified” for the EBB Program before the effective date of the ACP that would otherwise see a reduction in their benefit as a result of the changes made in the revised program. The FCC released an Order on December 8 providing guidance on the transition from the EBB to the ACP. Among other things, the FCC has clarified  that the 60-day transition period for the ACP will start on December 31, 2021 for all households enrolled in the EBB Program as of December 30, 2021. During the transition period, legacy EBB households will continue to receive the $50 EBB subsidy (rather than $30 under ACP) for the 60-day transition period and may transfer their benefit to another participating service provider.

Consumer Choice and Protection

Under the ACP, providers must allow eligible households to apply their discount to any broadband Internet access plan the provider offers to the public. In addition, the ACP adopts certain consumer protection rules aimed at prohibiting inappropriate upselling (or downselling), extended service contracts, and restrictions on the ability to switch providers or services. Broadband providers participating in the ACP will be required to notify all eligible customers about the program, as well as the FCC’s ACP consumer complaint procedures.