Lifeline Supporters Look to O'Rielly for Possible Shift in Draft MSS Order
Lifeline providers are looking to FCC Commissioner Mike O’Rielly as a potential avenue for shifting a draft order circulated last month (see 2007300064) that would change the formula setting the minimum service standard to produce an MSS of 4.5 GB per month, said an industry attorney and an FCC official. That’s lower than the 11.75 GB the MSS will require starting in December without FCC action but higher than the freeze at the current 3 GB requested by virtually all Lifeline docket commenters. “We want them to do something, but we want it to be something that won’t harm Lifeline subscribers," said Public Knowledge Senior Policy Counsel Jenna Leventoff. “Vulnerable low-income Americans shouldn’t be left behind during this COVID-19 pandemic,” said attorney Judson Hill, who represents Lifeline provider TruConnect.
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O’Rielly is seen as a possible pivot point because of a June answer he provided to written questions for the record from Sen. Richard Blumenthal, D-Conn., about Lifeline, sent to Communications Daily. Asked how he would improve the program, he said then he would halt the December increase. Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks are considered likely to oppose the order; in dissents on the 2019 order, both said the FCC should pause the 2020 increase. “Without pausing for review, the FCC will simply be back in the same place, wrestling with the same issues, and more of the same scheduled service adjustments at this time next year,” said Rosenworcel in 2019.
O’Rielly voted with his Republican colleagues on the 2019 order, but if he joins the Democrats in opposing the current draft, it won’t be approved. A complete block of the order isn’t the most desirable scenario to providers and advocates, however, since that would mean an even sharper increase in December, an industry attorney said. Neither Lifeline providers nor public interest groups want the MSS to increase at all until after a required June study of the industry, but a compromise could get more traction at the FCC, the attorney said. That could be in the form of a smaller increase, such as to 3.5 GB, the attorney said. Lifeline providers would also seek a port freeze in such a compromise, the attorney said.
“Unlike some conservatives, I believe that Lifeline can be an important part of meeting the Commission’s Universal Service obligations, and it is critical that the program be sufficiently funded, especially during the current COVID-19 crisis,” O’Rielly told Blumenthal in June. It's not clear how the status of O’Rielly’s renomination to the agency would affect the likelihood of his opposing Pai on Lifeline, attorneys said. Despite O'Rielly's comment to Blumenthal, it isn't clear how he would vote on the draft order, an FCC official said. O'Rielly's office didn't comment.
"The Lifeline program plays an important role in ensuring that low-income American families and veterans have access to affordable broadband service,” said an FCC spokesperson. “That's why it's critical that the Commission continues to improve Lifeline offerings -- because no American should receive second-class service."
An increase in the MSS to 4.5 GB would make it difficult or impossible for Lifeline providers to offer the program's benefits to customers for free, and current users wouldn’t be able to take on a co-pay, said filings from CTIA, National Lifeline Association (NaLA), public interest groups and numerous Lifeline providers. A NaLA survey of Lifeline users showed “80 percent of respondents stated that they could not make a monthly copay of any amount,” and 60 percent don’t have a debit or credit card, NaLa said in a letter to the agency last week. The pandemic and the accompanying job losses and economic downturn only intensify the need for the Lifeline program, said NaLa attorney John Heitmann of Kelley Drye, in an interview.
Pausing the increase to the MSS would be consistent with the FCC’s other recent efforts to keep low-income consumers connected during the pandemic, said CTIA in calls with aides to all five commissioners, said an ex parte filing in docket 11-42 this month. “The risk of harm from even a small copay or forcing providers out of the marketplace is far too great,” said Free Press, Common Cause, the National Consumer Law Center and several other public interest groups in a joint filing and in calls with eighth floor aides.
The public interest groups said the FCC lacked transparency on the draft order. The draft hasn’t been released since it isn’t a meeting item, and the precise nature of the new formula proposed to calculate future MSS increases isn’t known. “We don’t know how they are changing the formula, what data they have or don’t have -- we want them to make it public,” said Common Cause Media and Democracy Program Director Yosef Getachew.
It’s not clear when the Lifeline draft will be voted. Attorneys following the docket have been told the item will move forward once it receives three votes, they said. The automatic increase to the MSS mandated by the FCC in 2016 will take effect Dec. 1 without agency action. Before the waiver order on the 2019 increase, the FCC considered the matter in November, so the earlier start in 2020 could indicate an openness to more deliberation, one attorney suggested.