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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations
information service does not bar us from providing support for the provision of broadband by ETCs who are providing voice telephony, but broadband internet access service cannot be an independent supported telecommunications service under section 254c. Although section 254e directs that a carrier that receives universal service support shall use that support only for the provision, maintenance, and upgrading of facilities and services for which the support is intended, section 254 is silent about the mechanics by which the Commission may determine the magnitude of high-cost or Lifeline support an ETC will receive, including the conditions that trigger the flow of support. By contrast, where Congress wished to specify in greater detail the mechanics of how support amounts would be calculated and triggered, it did so. Consequently, so long as the Lifeline funds ultimately are used consistent with the requirements of section 254e, there is no statutory bar to conditioning the receipt of support on the provision of an information service offered over the network that provides the section 254c1 supported service, and calculating support amounts in a way that accounts for the fulfillment of that condition. The California PUC
previously argued that if broadband internet access service were reclassified as an information service, the Commission may not have the ability to impose its Lifeline minimum service standards on broadband services offered in the Lifeline program because of the limitations of section 254c. As stated here, however, section 254c does not impose a bar on how the Commission might trigger universal support to a properly designated ETC. In the highcost program, the Commission long has provided support without relying on a trigger based solely on the provision of the section 254c1 supported service.
For example, the Commission calculated the amount of high-cost support for rate-of-return carriers based on the number of voice or broadband internet access services lines they provided, even though only voice telephony was the section 254c1
supported service. Thus, because broadband internet access service is not a section 254c telecommunications service, we remove broadband internet access service from the list of supported services in 54.101, while preserving our authority to fund broadband internet access service through the Lifeline program.
87. We note that, while we did not propose this specific rule change in the 2017 Lifeline NPRM, the Commission
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did specifically seek comment on relying on section 254e as the legal authority to support broadband internet access service in the Lifeline program without relying on the regulatory classification of broadband internet access service as a telecommunications service. Since this rule change is a direct result of our reliance on this legal theory, we find that removing broadband internet access service as a supported service in these rule sections is supported by the text of the NPRM
itself and, in addition, is in any event a logical outgrowth of the proposal in the NPRM. We also note that this rule change will have little practical effect on ETCs as the authority outlined today allows the Lifeline program to continue funding broadband internet access service offerings.
88. Continued Support for Plans that Only Satisfy the Broadband Minimum Service Standards. We next clarify that the Lifeline program can continue to provide support for broadband-only offerings by ETCs to qualifying lowincome households. In order to receive reimbursement for providing a Lifeline service, ETCs must identify if the service meets the mandatory minimum standards for voice or broadband to determine the amount of support they can claim from the Lifeline program.
With the phasedown of voice support proceeding in accordance with the Commissions current rules, we expect to see some subscribers who receive a Lifeline service that only qualifies for Lifeline support because the service meets the programs minimum service standards for broadband internet access service. Even though these offerings do not rely on a qualifying voice service although they could very well include some level of bundled non-qualifying voice service, as many Lifeline subscribers receive todaywe can continue to provide reimbursement under the statutory authority we outline today. As the Mozilla court notes, section 214e requires that entities designated as ETCs must be common carriers. The common carrier requirement of section 214e creates a limitation on the type of entities that may be designated as an ETC, but it does not prohibit an ETC from providing a broadband only-service to a qualifying low-income household and also receiving Lifeline support for that service to that household. The statute does not mandate that ETCs only offer service on a common carrier basis, nor does it prevent the Commission from reimbursing broadband internet access service offerings as a way to accomplish the principles on which the
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Commission is required to base its universal service policies pursuant to section 254b.
89. Using universal support to promote advanced services by ETCs that are, by definition, common carriers is consistent with past Commission efforts in the high-cost mechanism. In 2016, for example, the Commission allowed highcost support for broadband-only loops for rate-of-return carriers. In doing so, the Commission stated that it was applying the principle first outlined in the USF/ICC Transformation Order that universal service support should be directed where possible to networks that provide advanced services, as well as voice services. NaLA echoed this approach when it stated that, even if the Commission continues its phase-down in Lifeline voice support, as long as voice telephony service remains a supported service and ETCs are offering voice service, the Commission can continue to provide universal service funding only for the provision of broadband service. . . . Under the approach we adopt today, ETCs, operating as common carriers, would still be required to offer voice service, including through bundled service offerings, but the Lifeline program would target its resources to induce ETCs to provide broadband internet access service offerings, both bundled and standalone, to Lifeline subscribers.
90. A number of commenters expressed concern that the Commission would be unable to support broadbandonly providers as a result of broadband internet access services status as an information service. The Commission has already decided this issue and it is no longer before us now. As we explained in the 2019 Lifeline Order, broadband-only providers that do not offer any voice service cannot participate in the program because they are not common carriers offering the supported voice service and thus do not satisfy the requirement in section 214e1 that ETCs offer the services that are supported by the Federal universal support mechanisms under section 254c. AARP encourages us to use section 706 of the 1996 Act as a source of authority to support standalone broadband. However, we have determined that section 706 is not a grant of regulatory authority and merely a hortatory congressional statement.
91. The California PUC raises a concern that classifying broadband internet access service as a Title I
service will impact states ability to support broadband-only services in state universal service programs. We disagree. Congress specifically delineated the states authority to
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