Wireline Bureau Sets Lifeline MSS to 4.5 GB
The FCC Wireline Bureau set the Lifeline minimum service standard for broadband at 4.5 GB monthly effective Dec. 1 (see 2011160051). Staff acted on delegated authority after an order circulated by Chairman Ajit Pai that would have done the same didn’t get enough commissioner votes (see 2011020065). The MSS is currently 3 GB.
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
“Providing no increase to the mobile broadband usage minimum service standards would risk leaving low income Americans behind during a pandemic that has disproportionately affected them, while permitting a dramatic and sudden increase in the standard could result in unaffordable service for low-income consumers,” said the order released Monday, partially granting a National Lifeline Association petition. NaLA sought a waiver freezing the MSS. The bureau also granted Lifeline waivers connected with the pandemic, and denied a NaLA stay request and a request to halt a phase-down in Lifeline voice support.
Without FCC action, the MSS would have increased to 11.75 GB Dec. 1. For months, public interest groups, Lifeline providers and legislators uniformly argued that increases to 4.5 GB or 11.75 GB would create untenable additional charges for Lifeline customers. The Wireline Bureau order cited a filing from T-Mobile, also posted Monday, as evidence that’s not true. “T-Mobile expressed its willingness to offer an Assurance Wireless Lifeline service plan at 4.5 GB per month with no end user recurring charge,” said the filing on a Nov. 13 call with Pai aide Nick Degani. “Absent a change in circumstances, this offer would remain available through November 30, 2021.” Lifeline providers cited T-Mobile’s annual report as evidence they can’t tolerate an MSS increase, and the company sought a waiver freezing the MSS in July.
The carrier owns spectrum, and so doesn't need to purchase it wholesale from carriers as Lifeline providers do, said attorney Judson Hill, who represents Lifeline provider TruConnect. T-Mobile's shift gives the FCC an example of a provider accepting the shift to 4.5 GB without requiring subscribers to pay co-pays. Every other commenter had said co-pays were inevitable after an MSS increase.
Providers didn’t give the agency sufficient evidence that the increase to 4.5 GB would force customers out of the program or harm the industry, the order said. The petition for the freeze relies on retail pricing data rather than cost data, which the FCC “last year rejected as a sufficient basis to demonstrate the impact of usage allowance on the cost of providing Lifeline service,” the order said. Lifeline providers continued to seek designation as eligible telecom carriers (ETCs) in states that don’t provide additional Lifeline subsidies, the order said. “We remain unconvinced that the Lifeline marketplace does not follow the broader telecommunications marketplace trend of decreasing consumer prices over time.” That trend “would indicate that ETCs could support a moderate increase in minimum usage allowance for Lifeline consumers.” NaLA and attorneys for several Lifeline providers didn’t comment.
The bureau also denied NaLA’s request for an emergency stay of the increase to 11.75 GB. With the bureau order, NaLA is unlikely to prevail on the merits, the stay denial said. “Petitioners are unlikely to prevail here because the Bureau has granted NaLA’s petition in a way that prevents undue disruption to the program while fulfilling the statute’s policy that low-income consumers should also have access to an evolving level of service.” NaLA planned to appeal to the U.S. Court of Appeals for the District of Columbia Circuit Tuesday if the FCC didn’t act on the stay. The action on the NaLA petition may have been partially motivated by the association's threat to go to court, said Hill. The shift to 4.5 GB instead of the more extreme jump to 11.75 GB is likely to appear more defensible, he said. Hill expects some sort of legal challenge to the bureau action.
The order denies the petition’s call for a halt to a phase-down in Lifeline support for voice service for lack of evidence. “While the Petitioner and commenters state that voice is still the primary means of communication for many low-income Americans, they do not show that the phasedown in voice support would result in unaffordable services or lead to de-enrollments from the program.”
The bureau also issued an order to further extend existing Lifeline waivers involving COVID-19, dealing with recertification, reverification, general de-enrollment, usage and income documentation requirements. The waivers are extended from Nov. 30 to Feb. 28.