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Federal Register / Vol. 86, No. 4 / Thursday, January 7, 2021 / Rules and Regulations
an evolving level of telecommunications services, this does not prohibit the Commission from using the program to more broadly advance the principles set forth in section 254b and indicates that Congress disfavored a static approach focused on legacy technologies. Additionally, section 254b establishes the principles on which the Commission shall base its policies for the preservation and advancement of universal service. Such principles include ensuring that quality services are available at affordable rates and that access to advanced telecommunications and information services should be provided in all regions of the Nation.
79. As the Commission concluded in the USF/ICC Transformation Order, by requiring in section 254e that ETCs use high-cost support for both facilities and services, Congress granted the Commission flexibility to not only designate the types of services for which support would be provided, but also to encourage the deployment of the types of facilities that will best achieve the principles set forth in section 254b. In addition, the Commission has a mandatory duty to implement universal service policies that advance the principles outlined in section 254b, and to accomplish that duty we have the authority to create some inducement to ensure that those principles are achieved. Our authority under section 254 therefore permits us to direct universal service support through the Lifeline program to both voice services and broadband internet access service in accordance with our long-standing principle that universal service support should be directed where possible to networks that provide advanced services, as well as voice services. In upholding the Commissions reliance on this approach when it instituted the modernized highcost programs, the Tenth Circuit approvingly noted that by interpreting the second sentence of 254e as an implicit grant of authority that allows it to decide how USF funds shall be used by recipients, the FCC also acts in a manner consistent with the directive in 254b and allows itself to make funding directives that are consistent with the principles outlined in 254b1 through 7. The National Lifeline Association NaLA and AT&T
propose that the Commission may be able to rely on its ancillary authority under section 4i of the Act to continue to support broadband internet access service in the Lifeline program. The National Consumer Law Center NCLC
and the United Church of Christ UCC,
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as well as AT&T, pointed to section 254j as another potential source of authority for supporting broadband internet access service in the Lifeline program. Additionally, the Lifeline Connects Coalition urged us to explore using Title Is general jurisdictional grant as an option to support broadband internet access service in the Lifeline program or ancillary authority options for the principles outlined in section 254b. Because we find that section 254e provides a clear source of authority for the Commission to support ETCs providing broadband internet access service in the Lifeline program, we do not find it necessary to rely on the other sources of legal authority proposed in the record.
80. The D.C. Circuit in Mozilla, in remanding this issue back to the Commission, stated that we fail to explain how our authority under section 254e could extend to broadband internet access service now that broadband is no longer considered to be a common carrierservice. We clarify that while broadband internet access service itself is not a common carrier service, many broadband providers are ETCsand thus, by definition, are common carriers. Section 254e permits us to direct universal service support to both the voice service and broadband internet access service provided by such ETCs. This support flows regardless of the type of service provided, as long as it goes to support the facilities of a designated ETC. Thus, it is the common-carrier status of the provider, not the service, that governs whether the provider is eligible to receive Lifeline support for services provided over its network. If a service provider is not a common carrier and thus cannot become an ETC, the Lifeline program cannot support its provision of broadband internet access service. For this reason we also reject NARUCs contention that the Commissions continued use of voice telephony service to define the supported service creates a risk that a provider that is not a common carrier will obtain designation as an ETC. There is no basis for NARUCs claim that the 10th Circuits decision in In re FCC 11161
rejected the Commissions use of voice telephony service as the supported service, and nothing in our Order today changes that result. As the court noted in that decision, only common carriers are eligible to obtain designation as an ETC and the court agreed with the FCC that the petitioners argument will not be ripe for judicial review unless and until a state commission or the FCC designates . . . an entity that is
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not a telecommunications carrier as an eligible telecommunications carrier ;
under 214e. Since NARUC provides no evidence that a non-common carrier has been designated by the FCC or a state commission, much less as the result of the Restoring Internet Freedom proceeding, and the legal authority we identify today continues to require ETCs to be common carriers, we see no risk that a non-common carrier will receive an ETC designation.
81. We thus reject arguments that we cannot support broadband internet access service in the Lifeline program if it is not classified as a telecommunications service. Our approach outlined today does not impact the ETC designation process or the requirement that support recipients be ETCs and, consistent with the statute ETCs will still offer voice telephony service and be required to be common carriers. While the Commission has not classified VoIP service as a telecommunications service, it has consistently recognized that a provider may offer VoIP on a Title II basis if it voluntarily holds itself out as a telecommunications carrier and complies with appropriate federal and state requirements. Thus, the Commission is continuing to support telecommunications services pursuant to its authority under section 254 of the Act. This approach simply enables lowincome consumers to receive discounts for broadband internet access service provided by ETCs, allowing us to work towards fulfilling our principles of ensuring affordable rates and access to advanced telecommunications and information services across all regions of the Nation.
82. We disagree with commenters that argue that the Restoring Internet Freedom Order renders the Commission unable to ensure the availability of Lifeline-supported options for lowincome consumers. The Commission retains the authority, if warranted, to condition Lifeline support on the provision of broadband internet access service, as it has in the context of the high-cost mechanism. The limited example put forward in the context of AT&Ts grandfathering of legacy DSL
does not persuade us otherwiseas the commenters who raise the point admit, the loss of these DSL connections does not necessarily mean a loss to existing Lifeline subscribers. We also note that the Restoring Internet Freedom Order does nothing to change the procedures by which carriers may seek to relinquish their status as ETCs, which will continue to be governed by section 214e4 of the Act to ensure that
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