# Affordable Connectivity Program; Emergency Broadband Benefit Program

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-02887

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** February 14, 2022
- **Citation:** 87 FR 8346

## Text

FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 54
[WC Docket Nos. 21-450 and 20-445; FCC 22-2; FR ID 71008]
Affordable Connectivity Program; Emergency Broadband Benefit Program

AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this Report and Order, the Federal Communications Commission (Commission or FCC) adopts final rules for the Affordable Connectivity Program, established by Congress in the Infrastructure Investment and Jobs Act (Infrastructure Act). The Affordable Connectivity Program is designed to make broadband service and connected devices available to eligible low-income households at affordable, discounted prices from providers that opt to participate in the program. The rules adopted in the Report and Order address,
inter alia,
the eligibility criteria for broadband service providers that opt to participate in the program, eligibility criteria for households that seek benefits, the types of broadband services and connected devices that will be covered, the amounts of reimbursements available to providers, claims procedures, consumer protection requirements, and reporting, auditing, enforcement, and related matters.

DATES:

Effective March 16, 2022, except for 47 CFR 54.1802(b), 54.1804, 54.1807(b), 54.1808(c)(1) and (2), 54.1809(c), and 54.1810(a) and (b), which are effective April 15, 2022.

ADDRESSES:

You may submit comments, identified by WC Docket Nos. 21-450, by any of the following methods:

•
Electronic Filers:
You may file documents electronically by accessing the Commission's Electronic Comment Filing System (ECFS) at
https://www.fcc.gov/ecfs/filings.

•
Paper Filers:
Parties who choose to file by paper must file an original and one copy of each filing.

Filings can be sent by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to Federal Communications Commission, 45 L Street NE, Washington, DC 20554.

• Effective March 19, 2020, and until further notice, the Commission no longer accepts any hand or messenger delivered filings. This is a temporary measure taken to help protect the health and safety of individuals, and to mitigate the transmission of COVID-19. See
FCC Announces Closure of FCC Headquarters Open Window and Change in Hand-Delivery Policy,
Public Notice, DA 20-304 (March 19, 2020),
https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy.

• Parties that need to submit confidential filings to the Commission should follow the instructions provided in the Commission's March 31, 2020 public notice regarding the procedures for submission of confidential materials.
See FCC Provides Further Instructions Regarding Submission of Confidential Materials,
Public Notice, DA 20-361, 35 FCC Rcd 2973 (OMD, March 31, 2000),
https://docs.fcc.gov/public/attachments/DA-20-361A1_Rcd.pdf.
All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

People with Disabilities.
To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to
fcc504@fcc.gov
or call the Consumer and Governmental Affairs Bureau at 202-418-0530.

FOR FURTHER INFORMATION CONTACT:

Eric Wu, Attorney Advisor, Telecommunications Access Policy Division, Wireline Competition Bureau, at (202) 418-7400 or
eric.wu@fcc.gov.

SUPPLEMENTARY INFORMATION:

This is a synopsis of the Commission's Report and Order in WC Docket Nos. 21-450 and 20-445, FCC 22-2, adopted on January 14, 2022 and released on January 21, 2022. The full text of this document is available at
https://docs.fcc.gov/public/attachments/FCC-22-2A1.pdf.
The Further Notice of Proposed Rulemaking that was adopted concurrently with this Report and Order is to be published elsewhere in the
Federal Register
.

I. Introduction

1. In the Infrastructure Act, Congress established the Affordable Connectivity Program (ACP) on the basis of the preexisting Emergency Broadband Benefit Program (EBB Program), with modifications designed to transform it from an emergency response to a public health crisis to a longer-term program to support making discounted broadband service and connected devices available to low-income households. The Infrastructure Act includes an additional $14.2 billion appropriation for implementing the new program. The rules adopted in the Report and Order are largely based on the Commission's EBB Program rules, with modifications to reflect statutory changes adopted in the Infrastructure Act.

2. In particular, the Infrastructure Act changed the EBB Program's subscriber eligibility rules and benefit amounts by increasing the Affordable Connectivity Program's income threshold from 135% to 200% of the Federal Poverty Guidelines, adding the Special Supplemental Nutritional Program for Women, Infants, and Children (WIC) as a qualifying program, removing eligibility for households that qualified for the EBB Program based on factors related to income losses due to the COVID-19 pandemic, and reducing the standard monthly benefit from $50.00 to $30.00.
See
Infrastructure Act, div. F, tit. V, section 60502(b)(1),
amending
Consolidated Appropriations Act, 2021, Public Law 116-260, div. N. tit. IX, section 904(a)(6), (a)(7)(A) (2020); 47 U.S.C. 1752(a)(6), (a)(7)(A). Under the Affordable Connectivity Program, eligible households may apply subsidy benefits to any broadband services offered by a participating provider, rather than limiting the covered services to those offered on December 1, 2020, as in the EBB Program. Infrastructure Act, div. F, tit. V, section 60502(a)(3),
amending
Consolidated Appropriations Act, 2021, Public Law 116-260, div. N. tit. IX, section 904(a)(9), (b)(7); 47 U.S.C. 1752(b)(7)(A)(i). The Affordable Connectivity Program also includes modified obligations for participating providers relating to consumer protection and program promotion, as well as reporting, enforcement, auditing, and other provisions. These statutory provisions and rules implementing them are discussed following.

3. Pursuant to the Infrastructure Act, the Affordable Connectivity Program took effect on December 31, 2001. The Universal Service Administrative Company (USAC or the Administrator), which administers the Commission's universal service programs as well as the EBB and Affordable Connectivity Programs, began accepting applications and enrollments for the Affordable Connectivity Program on December 31, 2021. As of January 14, 2022, approximately 265,000 households had enrolled in the Affordable Connectivity Program and more than 9 million

households had transitioned into that newly-launched program from the EBB Program.

4. The Infrastructure Act directs the Commission to adopt rules to implement the Affordable Connectivity Program by January 14, 2022 (
i.e.,
within 60 days after November 15, 2021, the date of enactment of the statute).
See
47 U.S.C. 1752(c)(1). As directed by the statute, a public notice initiating this proceeding and seeking comment on proposed rules was issued on November 18, 2021,
see
47 U.S.C. 1752(c)(2);
see Wireless Competition Bureau Seeks Comment on the Implementation of the Affordable Connectivity Program,
WC Docket No. 21-450, Public Notice, DA 21-1453 (WCB Nov. 18, 2021) (
ACP Public Notice
); Proposed Rule, 88 FR 74036 (Dec. 29, 2021); and interested parties were given 20 days to file comments (due Dec. 8, 2021) and 20 days for reply comments (due Dec. 28, 2021). In response, the Commission received comments from broadband providers, State and local governments, educational groups, consumer groups and other non-profits, and individual consumers.

II. Discussion

A. Participating Providers

5. The Infrastructure Act defines an eligible “participating provider” as a broadband service provider that has either received Eligible Telecommunications Carrier (ETC) designation under 47 U.S.C. 214(e) or requested and obtained the Commission's approval as such.
See
47 U.S.C. 1752(a)(11)(A). This definition is consistent with the definition of “participating provider” in the Consolidated Appropriations Act for purposes of the EBB Program; and as in the EBB Program, provider participation in the Affordable Connectivity Program is voluntary. 47 U.S.C. 1752(a)(11)(A). Nothing in the Infrastructure Act requires changes to the EBB Program framework through which providers may seek to participate in the Affordable Connectivity Program, including the participating provider election process, the “expedited approval process” to approve requests to participate by providers that are not designated ETCs,
see
47 U.S.C. 1752(d)(2)(A), or the “automatic approval process” for providers with an “established program as of April 1, 2020” for offering broadband services to eligible households with verification processes sufficient to prevent fraud, waste, and abuse.
See
47 U.S.C. 1752(d)(2)(A), (d)(2)(B). Providers that participated in the EBB Program and were in good standing as of December 31, 2021 when the EBB Program ceased can continue to participate in the same manner in the Affordable Connectivity Program without seeking Bureau approval or filing election notices. This includes providers with alternative verification process approvals. Providers that did not participate in the EBB Program and have not been designated as ETCs by a State or the Commission must file for automatic approval or expedited approval from the Commission. All new providers to the Affordable Connectivity Program will need to file USAC election notices.

1. Providers Eligible To Participate

6.
Participating Provider Eligibility Requirements.
The Commission retains the broad, technologically neutral approach to provider participation that was used in the EBB Program. ETCs and non-ETCs seeking to participate in the Affordable Connectivity Program must establish that they provide broadband services to participate, and the Commission declines to further narrow provider eligibility among those providers that offer broadband services as defined by the statute. This interpretation continues to allow participation by ETCs and non-ETC broadband providers, including not only traditional internet Service Providers (ISPs) such as cable providers and wireless internet service providers, but also non-traditional broadband providers like community-owned networks, electric cooperatives, and municipal governments.

7. The Infrastructure Act removes the Consolidated Appropriations Act's requirement that the broadband services supported by the program must have been offered “in the same manner, and on the same terms, as described in any of such provider's offerings for broadband internet access service to such household, as on December 1, 2020,” Consolidated Appropriations Act, 2021, div. N, tit. IX, section 904(a)(9),
struck by
Infrastructure Act, div. F, tit. V, section 60502(b)(1)(A)(iv); 47 U.S.C. 1752(a)(8), and imposes a new requirement that providers “allow an eligible household to apply the affordable connectivity benefit to any internet service offering of the participating provider, at the same rates and terms available to households that are not eligible households.” 47 U.S.C. 1752(b)(7)(A)(i). While the EBB Program required participating providers to have offered retail broadband internet access service to eligible households as of December 1, 2020, the Infrastructure Act removed the December 1, 2020, restriction, and therefore participating providers will only need to establish they offered broadband services to end-users prior to seeking to participate in the Affordable Connectivity Program. Participating providers can establish through certification that they provided broadband internet access service and reimbursable internet service offerings either by timely filing the FCC Form 477 or by filing a certification, under penalty of perjury, that they provided broadband service, prior to submitting the application. As in the EBB Program, such retail broadband internet access service must be offered or provisioned to end users, meaning the provider of retail broadband internet access service maintains a direct relationship with the customer, is responsible for dealing with customer complaints, handles customer billing, and provides quality of service guarantees to the end user.

8.
Existing EBB Program Participating Providers.
In order to enable a quick and orderly transition period by reducing administrative burdens for participating providers, the Commission, and USAC, the Commission allows existing EBB Program participating providers in good standing to be automatically eligible to participate in the Affordable Connectivity Program. Automatically transitioning participating providers from the EBB Program to the Affordable Connectivity Program helps ensure that eligible households continue to receive the Affordable Connectivity Program discount without disruptions.

2. Elections To Participate in the Affordable Connectivity Program by Existing EBB Program Providers, Existing ETCs and Bureau-Approved Providers

9. Providers that did not participate in the EBB program but wish to participate in the Affordable Connectivity Program will be required to file election notices with USAC to facilitate the administration of the program and provide USAC the necessary information to incorporate providers into its systems for eligibility determination, enrollment, and reimbursement. This also applies to providers seeking to add new jurisdictions (States or territories). Existing ETCs will need to file election notices with USAC only, while non-ETCs will need to first apply for and then obtain Bureau approval prior to filing their election notices with USAC. The Commission directs the Bureau and USAC to work expeditiously to review provider applications and elections, respectively, and directs the Bureau to issue additional guidance and instruction as necessary for providers seeking to participate in the Affordable

Connectivity Program. Further, the Commission expects the Bureau and USAC to prioritize their reviews to limit excessive delay in issuing approvals of the applications and elections once properly submitted by the providers.

a. Election Notice Process and Requirements

10. The Commission directs USAC, under the supervision of and in coordination with the Bureau, to establish and administer a process to enable all new participating Affordable Connectivity Program providers to file election notices containing information sufficient to effectively administer the program, including the information discussed following. Participating providers must certify under penalty of perjury that the information set forth in the election notice is true, accurate, and complete; they understand and will comply with all statutory and regulatory obligations described within the Order; and all terms and conditions and other requirements applicable to using the Lifeline National Eligibility Verifier (National Verifier), National Lifeline Accountability Database (NLAD), Representative Accountability Database (RAD), and other USAC systems. Providing materially false information in the election notice will disqualify a provider from participation in the Affordable Connectivity Program or result in a reduced reimbursement, as appropriate. 47 U.S.C. 1752(a)(11), (d).

11. Provider elections must include the following information to establish that the provider has met the criteria and can provide enough information to allow USAC to administer the program.

(a)
List of States or territories in which the provider plans to participate in the Affordable Connectivity Program.
A provider must list each State in which it will offer Affordable Connectivity Program services. Consistent with USAC's existing processes, providers should identify to USAC the postal ZIP code(s) or Census Block(s) where the provider will offer the Affordable Connectivity Program service to obtain Service Provider Identification Number(s) (SPINs), Study Area Codes (SACs), and provide information for use in the “Companies Near Me Tool” to the extent necessary.

(b)
A statement that, in each such State or territory, the provider was a “broadband provider.”
Consistent with the Commission's broadband data reporting rules, participating providers will be able to establish that they provided broadband internet access service and reimbursable internet service offerings through reference to previous FCC Form 477 filings. The Commission will consult the subscription data provided on the FCC Form 477 and any successor filing to determine compliance with this requirement. To fulfill this requirement, a provider should reference the most recent FCC Form 477 data month submission showing service in the jurisdiction. Providers that are not required to file FCC Form 477 must certify that they provided retail broadband internet access service to end users, submit supporting documentation demonstrating such offerings, and identify the underlying carrier providing the network facilities.

(c)
A statement identifying where the provider is an existing ETC.
A provider who is an ETC or is affiliated with an ETC seeking to begin offering the Affordable Connectivity Program must submit to USAC documentation demonstrating that it is a participating provider in specific states.

(d)
A statement identifying where the provider received Bureau approval to participate in the Affordable Connectivity Program.
Providers seeking approvals outside of states where they are existing ETCs or are affiliated with existing ETCs (within the meaning of “affiliate” in 47 U.S.C. 153(2)) will need to identify those states and submit the statement to the Bureau for approval to participate in the program.

(e)
A statement confirming whether the provider intends to distribute connected devices and supporting documentation.
Providers seeking reimbursement for connected devices must submit a statement of intent to distribute connected devices as part of their election notice. These providers should also include documentation detailing the equipment, including device make, device model, device type, device characteristics (
e.g.,
screen size, storage, memory) and market value of the laptop, desktop or tablet. Connected devices must be accessible to and usable by users with disabilities.

12. Providers newly seeking to participate in the Affordable Connectivity Program must obtain and be able to provide the necessary administrative registrations to utilize the Commission and USAC processes, including the Commission 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 for all entities the provider anticipates seeking reimbursement. The FRN, EIN/TIN, and DUNS should all be associated with the same entity filing the election notice, and the provider should identify any parent/subsidiary or affiliate relationships it has with other broadband service providers.
See
47 U.S.C. 153(2) (defining affiliate). An election should be filed for every entity expecting to receive reimbursement from the Affordable Connectivity Program.

13. The Commission will not collect broadband internet service plan information during the election process, and participating providers do not have to file broadband service plan information during the USAC election process or update existing service plan information that they previously filed during the EBB Program election process. Providers are on notice of the statutory requirement to offer ACP discount on “any internet service offering” and the requirement adopted in the Order to certify compliance with the ACP rules as a condition of participation.

14. The Commission directs USAC, in coordination with the Bureau, to expeditiously process election notices and to establish necessary systems and processes to systematically review election notices on a rolling basis. USAC should notify a provider promptly if its election notice is incomplete or otherwise contains errors that prevent USAC from processing the election notice. USAC will only reject election notices that are materially incomplete and that the provider fails to update.

b. Obligations of Providers Electing To Participate in Affordable Connectivity Fund

15. The Commission has authority under the Infrastructure Act to require participating providers to make available the necessary information and certifications to obtain access to the existing USAC systems needed to administer the Affordable Connectivity Program, and it authorizes USAC to continue to make available the appropriate databases to administer the program, including the National Verifier, NLAD, RAD, and Lifeline Claims System (LCS), and to take the appropriate actions to update, modify, or create the necessary systems to administer the Affordable Connectivity Program in line with the Commission's direction in the Order. The Commission also directs the Bureau and the Office of Managing Director (OMD) to supervise and coordinate with USAC all actions necessary to continue to make USAC databases and systems available for the Affordable Connectivity Program.

16.
Access to Affordable Connectivity Program Systems.
The Commission further requires participating providers to use USAC systems, such as the LCS, NLAD, and RAD, for program administration, and permits them to use the National Verifier to determine household eligibility if they do not have approved alternative verification processes.
See
47 U.S.C. 1752(b)(3), (i)(5). Based on the Commission's experience with the EBB Program, the Commission will continue to rely on the USAC-administered National Verifier, NLAD, RAD, LCS, and other established processes, including the provider reimbursement process, call centers for program support, provider and consumer outreach, and conducting program integrity reviews. The Commission directs the Bureau and USAC, as directed by the Bureau, to issue any further guidance or instruction necessary to clarify the obligations of participating providers when using USAC databases and the administrative process established for the Affordable Connectivity Program.

17.
Required Updates to Election Notice Information Resulting from Transactions of Participating Providers.
Participating providers must maintain up-to-date information in their election notices filed with USAC and shall keep the identifying information specified in those notices, including points of contact, FRN, EIN/TIN, and DUNS, up to date. Participating providers must update this information following any transaction that would result in a change to the identifying information submitted on an election notice (although they need not seek approval specifically for continued participation in the Affordable Connectivity Program following transfers of ownership or control under 47 U.S.C. 214). Providers must submit updated and accurate contact information and similar administrative information within ten business days of the change in information.

c. Sales Agent Financial Incentives for Enrollments

18. Consistent with the EBB Program rules, the Commission continues to require all participating providers to have their agents and other enrollment representatives registered with the Representative Accountability Database (RAD), as is currently required for the Lifeline and EBB Programs, as a way to minimize waste, fraud, and abuse. To address the potential for waste, fraud, and abuse caused by commission-based compensation for sales agents, the Bureau proposed prohibiting any commission compensation for enrollment representatives or direct supervisors.
ACP
Public
Notice,
86 FR at 74040-41, para. 18. At this time, the Commission declines to adopt a strict prohibition on participating providers offering commission-based compensation to employees, sales agents, or similar enrollment representatives. The Commission instead adopts a more limited prohibition on participating providers and, as done for Lifeline, restricts them from offering or providing to their enrollment representatives or direct supervisors any commission compensation that is based on the number of households who apply for, are enrolled in, or receive the Affordable Connectivity Program benefit from that provider, or based on revenues the participating provider receives in connection with the Affordable Connectivity Program, including payments for connected devices. In the
EBB Program Order,
the Commission declined to apply this prohibition to the EBB Program “to avoid discouraging provider participation and diminishing consumer choice” in a temporary program.
Emergency Broadband Benefit Program,
86 FR 19532, 19559, para. 142 (April 13, 2021) (
EBB Program Order
).

19. The considerations for the more permanent Affordable Connectivity Program are different, and our experience during the EBB Program with agent-driven, apparent improper enrollments necessitates adopting a program ban on agent commission compensation similar to the Lifeline Program. For example, the FCC's Office of Inspector General (OIG) recently issued an advisory raising concerns about potential waste, fraud and abuse with respect to EBB Program enrollments based on the USDA National School Lunch Program's Community Eligibility Provision (CEP).
See generally Advisory Regarding Fraudulent EBB Enrollments Based on USDA National School Lunch Program Community Eligibility Provision
(FCC OIG Nov. 22, 2021),
https://www.fcc.gov/document/fcc-inspector-general-advisory-regarding-ebb-enrollment-fraud
(
OIG Advisory
);
Wireline Competition Bureau Announces Additional Program Integrity Measures for Emergency Benefit Program Enrollments Based on the Community Eligibility Provision,
WC Docket No. 20-445, DA 21-1464 (WCB Nov. 22, 2021). Specifically, the advisory observes and describes certain problems associated with the CEP enrollment process that involve misconduct by sales agents.
OIG Advisory
at 2-3. While the Bureau and USAC have engaged in remedial actions to prevent this specific abuse, the Commission is concerned that the financial incentives for provider sales agents based on enrollments and applications invites program waste.

20. This decision is bolstered by a similar restriction in the Lifeline program. In 2019, the Commission banned this practice in the Lifeline program, holding that “while the National Verifier plays an important role in helping to address waste, fraud, and abuse in the program, we do not believe that it will eliminate the financial incentives for individuals to attempt to defraud the Lifeline program. Commissions based on the number of Lifeline applications or successful Lifeline enrollments are one such incentive, and by limiting them today, we remove a financial incentive for committing fraudulent activity.”
Bridging the Digital Divide for Low-Income Consumers,
Final Rule, 84 FR 71308, 71315, para. 52 (Dec. 27, 2019) (
Lifeline Fifth Report and Order
). The Commission finds this rationale persuasive. While the Commission initially declined adopting such a ban for the EBB Program to not discourage provider participation, given the robust provider participation and household enrollments seen in the EBB Program, the Commission finds the public interest is better served by preventing waste, fraud, and abuse caused by incentives related to commissions.

21. In considering this decision, the Commission is not persuaded by comments in the record suggesting that such a limited commission-based compensation prohibition is unnecessary or that representative registration in the RAD alone is sufficient to prevent waste, fraud, and abuse. In the Commission's experience, both in Lifeline and the EBB Program, agent registration does not remove the financial incentive to improperly enroll a household when the agent is compensated based on the enrollment.
See OIG Advisory
at 2-3. Further, agent registration allows for audits, trend analysis, and other remedial actions after the improper enrollment occurs, but does little to prevent the improper behavior or remove the incentive for abuse. Commenters additionally suggest that the Lifeline commission ban was a stop-gap measure that was put in place prior to the full launch of the National Verifier and thus does not need to be implemented in the Affordable Connectivity Program, which utilizes the National Verifier. The Commission, however, continues to ban commission-based compensation in the Lifeline program following the full deployment

of the National Verifier, and the Commission has recognized that the National Verifier itself does not remove the financial incentives for sales agents to improperly enroll ineligible households.
Lifeline Fifth Report and Order,
84 FR at 71315, para. 52.

22. The Commission considered a stricter prohibition that would bar any commission-based compensation to participating providers' enrollment representatives.
ACP Public Notice,
86 FR at 74040-41, para. 18. However, because this broad prohibition may have had unintended consequences given the frequency broadband providers use commission-based compensation for their enrollment representatives across multiple services and business operations, the Commission limits the prohibition to only commissions based on ACP applications, enrollments, participation, or revenues, thus striking a balance in preventing certain abuses in the program while reducing the logistical and administrative burden for participating providers that a blanket prohibition on commissions may have caused. Finally, the Commission finds support in the record to ban agent compensation based on ACP applications and enrollments from commenters recognizing the financial incentive to enroll consumers can result in misleading and improper information being provided to consumers to induce enrollments or other abusive behaviors.

23. Accordingly, the Commission prohibits participating providers from offering or providing commissions to enrollment representatives and their direct supervisors based on the number of consumers who apply for, are enrolled in, or receive the affordable connectivity benefit from that provider. This restriction applies to an employee, agent, contractor, or subcontractor, acting on behalf of a participating provider or third-party entity, who directly or indirectly provides information to the Administrator for the purpose of eligibility verification, enrollment, subscriber personal information updates, benefit transfers, or de-enrollment. For purposes of this rule, a provider's payment to a third-party entity that in turn provides commissions to an enrollment representative is subject to this prohibition. Likewise, the Commission determines that providers who allow agents to retain cash payments for device purchases related to the ACP enrollments are providing an incentive based on ACP enrollments, and thus this activity is also prohibited under these rules. This restriction strikes the balance between a blanket commission prohibition that may have been logistically and administratively difficult for participating providers given the frequent use of this practice for broadband providers in general service initiations and the goal of preventing waste, fraud, and abuse caused by the financial incentives to enroll any household in the Affordable Connectivity Program through the use of commissions. This restriction is not intended to prevent providers from using customer service representatives to assist consumers in the application and recertification processes, but customer service representatives should not be compensated based on the number of customer applications that are approved. Further, this restriction only applies to commissions related to ACP applications, participation, enrollments, or revenue, and while it does not prohibit commissions paid for sale of service or provider business incentives unrelated to the Affordable Connectivity Program, it does not authorize providers to shift commissions that would have been paid for ACP applications, enrollments, or revenues to other services or business operations. This approach to restricting commissions based on ACP applications is supported by commenters that recognize this compromise addresses potential improper behaviors while not causing overly burdensome implementation for participating providers.

d. Provider Annual Certification Requirements

24. Providers are required to submit to USAC annual officer certifications relating to the Affordable Connectivity Program. The officer with responsibility for a participating provider's ACP activity shall certify, under penalty of perjury, that the participating provider has policies and procedures in place to ensure compliance with ACP rules. This annual certification is necessary to ensure that all ACP providers are vigilant against waste, fraud, and abuse, and are undertaking efforts to ensure compliance with the ACP rules, which will be particularly important as this program is anticipated to last multiple years. At a minimum, the annual certification will require ACP providers to attest that they have policies and procedures to ensure the eligibility of their subscribers to receive ACP support and for ensuring the accuracy and completeness of the information they provide to the National Verifier and NLAD; an acknowledgement that providers are liable for violations of ACP rules and that their liability extends to violations by their agents, contractors, and representatives; and other information deemed necessary by the Bureau to ensure that providers have a plan for complying with ACP rules. The Commission directs the Bureau to develop an annual officer certification and submission process with USAC and set a uniform deadline for all providers to submit this annual certification.

3. Non-ETC Provider Applications and Approval Process

a. Automatic Approval Process for Providers With Existing Support Programs

25. The Commission adopts an automatic approval process to enable non-ETC broadband providers with “an established program as of April 1, 2020, that is widely available and offers internet service offerings to eligible households and maintains verification processes that are sufficient to avoid fraud, waste, and abuse” to be automatically approved upon the filing of information meeting the criteria. 47 U.S.C. 1752(d)(2)(B). Any non-ETC broadband provider seeking to qualify for such automatic approval must file an application describing: (1) The states or territories in which in which it plans to participate, (2) the service areas in which the provider has the authority, if needed, to operate in each State, but has not been designated an eligible telecommunications carrier, and (3) a description, supported by documentation, of the established program with which the provider seeks to qualify for automatic admission to the Affordable Connectivity Program.

26.
Established Program as of April 1, 2020.
The Commission maintains the interpretation it adopted in the EBB Program of what constitutes an “established program” that is “widely available” while accounting for the Infrastructure Act's modifications to the statute. This requirement encompasses any eligible broadband provider that maintains an existing program that was made available by April 1, 2020, offering broadband to subscribers meeting at least one of the criteria in the statute's definition of an eligible household. Specifically, providers offering broadband subscribers discounted rates based on criteria such as low-income, participation in Federal, State, or local assistance programs, or other means-tested eligibility criteria qualify for this automatic approval process. 47 U.S.C. 1752(a)(6)(D). However, the Infrastructure Act removes eligibility for households that qualified based on a provider's COVID-19 program or having experienced a substantial loss of income since February 29, 2020. In keeping with the

directive of Congress, the Commission modifies the requirements of what constitutes an “established program” to reflect the removal of COVID-19-specific response programs and other short-term bill forbearance or forgiveness programs. A provider seeking to participate in the Affordable Connectivity Program can demonstrate an “established program” for automatic approval by submitting information demonstrating that it maintains an existing low-income program that was made available by April 1, 2020, to subscribers meeting at least one of the criteria in the revised definition of an eligible household. To qualify for automatic approval, providers must demonstrate that they are offering broadband subscribers discounted rates based on criteria such as low-income, participation in Federal, State, or local assistance programs, or other means-tested eligibility criteria, and must also demonstrate the pre-existing verification process used for this existing program. The principal consideration in determining an “established program” for automatic approval is whether subscribers receive or were eligible to receive a financial benefit through reduced rates. A program is “widely established” when it was offered to subscribers in a substantial portion of the service provider's service area in a particular State.

27.
Required Verification Processes.
The Infrastructure Act requires that providers seeking automatic approval to participate in the Affordable Connectivity Program have established programs that maintain verification processes that are “sufficient to avoid fraud, waste, and abuse.” 47 U.S.C. 1752(d)(2)(B). Providers that have been offering a broadband program for eligible households prior to submitting applications for automatic approval and are submitting applications for automatic approval must describe only the established program and participation requirements to meet the approval criteria.

28. Providers that receive automatic approval to participate in the Affordable Connectivity Program will use the National Verifier and the National Lifeline Accountability Database (NLAD) to verify household eligibility or their own alternative household eligibility verification processes, or the combination of both, before seeking reimbursement. To ensure the eligibility of the households enrolled through an approved alternative verification process, the Commission directs USAC to conduct quarterly program integrity reviews to ensure that subscribers enrolled through a provider's alternative verification process are eligible for the Affordable Connectivity Program.

29.
Timing of Approvals.
Providers that file applications certifying to and making necessary demonstrations for the criteria outlined preceding will receive approval automatically once the Bureau confirms all required information was submitted.

b. Expedited Review Process for Non-ETC Providers

30. The Commission adopts an expedited review process for non-ETC providers that do not qualify for automatic application processing and are not affiliated with an ETC in the same jurisdiction consistent with the EBB Program. Such providers must file an application for expedited review to receive approval from the Bureau to participate in the Affordable Connectivity Program by establishing a sufficient showing that they have met the criteria for expedited review and approval, as outlined following.

(a)
A list of states or territories where the provider will offer Affordable Connectivity Program services.
A provider seeking approval must list each jurisdiction in which it seeks to be approved to offer ACP-supported services. While the provider need only identify the State or territory where it plans to offer qualifying services for purposes of its submission to the Bureau, providers should be prepared to identify to USAC in their election the postal ZIP code(s) or Census Block(s) where Program service will be offered to obtain Service Provider Identification Number(s) (SPINs) or Study Area Codes (SACs), as necessary.

(b)
A statement identifying the jurisdiction in which the provider requires FCC approval and jurisdictions in which the provider is an existing ETC.
A provider that is designated as an ETC or affiliated with an ETC (
see
47 U.S.C. 153(2), defining “affiliate”) in some states or territories must submit an application and obtain Bureau approval to participate in the Program in states or territories where the provider is not designated as an ETC. Providers without ETC designations or unaffiliated with ETCs must certify that they are authorized to provide broadband services.

(c)
Certification of the provider's plan to combat waste, fraud, and abuse.
Participating provider applications must include a certification that the provider understands and complies with all statutory and regulatory obligations, including those described within the Order, as a condition of offering ACP-supported services. Specifically, a provider must certify that it will:

(i) Confirm a household's eligibility for the Program through either the National Verifier or a Commission-approved eligibility verification process prior to seeking reimbursement for the respective subscriber;

(ii) follow all enrollment requirements and obtain all certifications as required by the Program, including providing eligible households with information describing the Program's eligibility requirements, one-per-household rule, and enrollment procedures;

(iii) interact with the necessary USAC systems, including the National Verifier, NLAD, and RAD, before submitting claims for reimbursement, including performing the necessary checks to ensure the household is not receiving duplicative benefits within the Program;

(iv) de-enroll from the Program any household it has a reasonable basis to believe is no longer eligible to receive the benefit consistent with Program requirements;

(v) comply with the Program's document retention requirements and agree to make such documentation available to the Commission or USAC, upon request or any entities (for example, auditors) operating on their behalf; and

(vi) agree to the Commission's enforcement and forfeiture authority.

c. Alternative Verification Process Applications

31. The Infrastructure Act allows a participating provider to “rely upon an alternative verification process of the participating provider,” to determine household eligibility and enroll households in the EBB program, subject to certain conditions. 47 U.S.C. 1752(b)(2)(B). The statute provides that the “participating provider submits information as required by the Commission regarding the alternative verification process prior to seeking reimbursement,” and the Commission has seven days after receipt of the information to notify the participating provider if its “alternative verification process will be sufficient to avoid waste, fraud, and abuse.”
Id.
This approval allows participating providers to verify all household eligibility criteria through their own eligibility verification process in addition to, or instead of, using the National Verifier.

32.
Participating Provider Eligibility to Use an Alternative Verification Process.
Providers' alternative verification processes must be at least as stringent as methods used by the National Verifier. The use of alternative verification processes is limited to providers that maintain an existing verification process used for their own self-subsidized low-

income program or other purpose unrelated to the EBB Program, Affordable Connectivity Program, or similar Federal assistance programs. Providers lacking an existing household eligibility verification process would not be able to demonstrate that a new process would be sufficient to avoid waste, fraud and abuse. These providers must use the NLAD, in conjunction with the National Verifier and the school-based eligibility as permitted by statute, 47 U.S.C. 1752(b)(2)(C), to determine household eligibility for the Affordable Connectivity Program.

33. Providers with approved EBB Program alternative verification processes can continue to use those processes when enrolling households in the Affordable Connectivity Program in a manner consistent with the Affordable Connectivity Program's revised eligibility criteria and these providers need not seek new Commission approval for their alternative verification processes that already are compliant with these requirements. However, providers with approved alternative verification processes must seek new Commission approval to verify any eligibility criteria not originally contained in prior approved processes or when the provider seeks to update or modify its approved alternative verification process.

34.
Alternative Verification Process Application Requirements.
Participating providers seeking to use alternative verification processes must collect a prospective subscriber's: (1) Full name, (2) phone number, (3) date of birth, (4) email address, (5) home and mailing addresses, (6) name and date of birth of the benefit qualifying person if different than applicant, (7) basis for inclusion in program (
e.g.,
SNAP, SSI, Medicaid, school lunch, Pell Grant, income, provider's existing program, etc.) and documentation supporting verification of eligibility, and (8) certification that the information included in the application is true. The provider is required to describe the processes it (or a third-party) uses to verify the required information and is required to explain why the alternative process would be sufficient to avoid waste, fraud, and abuse. The provider is also required to explain how it trains its employees and agents to prevent ineligible enrollments, including enrollments based on fabricated documents. If the alternative verification process fails to include any of the required information, the provider is required to explain why such information was not necessary to prevent waste, fraud, and abuse. Finally, a provider must describe why its established program requires approval of an alternative verification process and it is required to explain why it proposes to use an alternative verification process instead of the National Verifier eligibility determinations.

35.
Timing of Alternative Verification Process Approvals.
As set out by the statute, the “participating provider submits information as required by the Commission regarding the alternative verification process prior to seeking reimbursement,” and the Commission has seven days after receipt of the information to notify the participating provider if the participating provider's “alternative verification process will be sufficient to avoid waste, fraud, and abuse.” 47 U.S.C. 1752(b)(2)(B). The Bureau will issue decisions regarding the application or otherwise notify the provider of why the application is insufficient within seven business days of the receipt of the application. If the provider's application is incomplete, the seven-business-day timing will not begin until the applicant provides additional information requested from the Bureau. Providers that make changes to approved procedures are required to inform the Commission in writing of those changes by filing a new application documenting the changes.

B. Household Eligibility

1. One-Per-Household Limitation

36. The Affordable Connectivity Program provides “eligible households” a monthly discount on broadband service and a one-time benefit for a connected device. 47 U.S.C. 1752(a)(6), (a)(7)(A). The Consolidated Appropriations Act and the Infrastructure Act do not define “household.” The Commission adopts the definition of “household” used in Lifeline and the EBB Program for the Affordable Connectivity Program. The Commission directs USAC to implement measures to ensure that during the 60-day transition period, legacy EBB Program households cannot receive the transition period benefit amount and the affordable connectivity benefit at the same time, even if they submit new applications for the Affordable Connectivity Program.

37. To facilitate the administration of the one-per-household limitation, the Commission directs the Bureau, in coordination with USAC, to make any necessary revisions to the worksheet used by households seeking to enroll in the Affordable Connectivity Program that reside at the same address as another household that is already enrolled in the Program. Where a participating service provider seeks to enroll a subscriber whose eligibility was verified through an approved alternative verification process or school-based eligibility verification and that subscriber also resides at the same address as another household enrolled in the Affordable Connectivity Program, the service provider must collect and retain a household worksheet (in either online or paper format) and retain any other subscriber provided documentation relevant to a determination that the household is not receiving more than one ACP benefit under the Program rules. Where a service provider conducts eligibility determinations pursuant to an approved alternative verification process, those processes must include measures to confirm that a household, under the definition the Commission adopts here, is not receiving more than one Affordable Connectivity Program benefit. The Commission also directs USAC to conduct quarterly program integrity reviews to confirm that Affordable Connectivity Program subscribers who reside at the same address are in compliance with the one-per-household limitation.

2. Participating Service Providers Are Required To Check Their Internal Records for Potential Household and Individual Duplicates. This Requirement Is Consistent With the Requirement To Implement Policies and Procedures for Ensuring That A Household Is Eligible Under Program Rules. Qualifying Income and Eligibility Programs

38. Pursuant to the Infrastructure Act, 47 U.S.C. 1752(a)(6)(A-E), a household may qualify for the Affordable Connectivity Program if at least one member of the household: (1) Meets the qualifications for participation in the Lifeline program (with the modification that the qualifying household income threshold is at or below 200 percent of the Federal Poverty Guidelines for a household of that size); (2) has been approved to receive school lunch benefits under the free and reduced price lunch program under the Richard B. Russell National School Lunch Act, or the school breakfast program under section 4 of the Child Nutrition Act of 1966; (3) has received a Federal Pell Grant under section 401 of the Higher Education Act of 1965 in the current award year; (4) meets the eligibility criteria for a participating provider's existing low-income program, subject to approval by the Commission and any other requirements deemed by the Commission to be necessary in the public interest; or (5) receives assistance through the WIC Program, established

by section 17 of the Child Nutrition Act of 1996 (42 U.S.C. 1786). The Infrastructure Act added WIC as a qualifying program for the Affordable Connectivity Program, raised the maximum income for qualifying based on household income for purposes of the Affordable Connectivity Program from 135 percent to 200 percent of the Federal Poverty Guidelines for a household of that size, and eliminated as qualifying criteria substantial loss of income since February 29, 2020, and participation in a provider's COVID-19 program. The Commission directs USAC to make the necessary changes to the relevant program systems, including NLAD, National Verifier, and LCS, and to update the acceptable documentation guidelines in order to implement the eligibility criteria for the ACP.

39.
Implementation of WIC as a Qualifying Program.
The Commission directs the Bureau, in conjunction with USAC, to identify and establish connection(s) with database(s) that could be used to automatically verify eligibility based on participation in WIC. To ensure that households can enroll in the Affordable Connectivity Program based on participation in WIC in the interim, while also promoting program integrity, the Commission directs USAC to develop acceptable documentation guidelines for WIC and to make adjustments to those criteria as needed to administer the program and guard against potential waste, fraud and abuse. The WIC documentation requirements should be at least as robust as the documentation requirements that USAC uses for other qualifying programs.

40.
Community Eligibility Provision and Similar Provisions, and Acceptable Documentation Period for School Lunch and Breakfast Programs.
Households may enroll based on a household member's enrollment in a school or school district that participates in the Community Eligibility Provision (CEP), through which schools or school districts provide free lunch or breakfast to all students without requiring an individual application for a meal benefit.

41. To prevent waste, fraud, and abuse in the Affordable Connectivity Program, households seeking to enroll based on the CEP are required to identify the CEP school and provide documentation demonstrating that a member of the household attends the identified CEP school. Households seeking to qualify based on a child or dependent's attendance at a CEP school should also provide the benefit qualifying person information when submitting their application. Furthermore, the school documentation that households submit must include the name of the student enrolled, the school year for which they are enrolled, the name and address of the school, and contact information for that school to validate that the proof of enrollment is for a CEP school. The Commission directs USAC to conduct quarterly program integrity reviews of a sample of households that enroll on this basis. USAC will de-enroll households that do not confirm their eligibility as required by the Commission's rules.

42. Households cannot qualify for the Affordable Connectivity Program based on a household member's enrollment in a school that participates in USDA Provisions 2 and 3, which, similar to the CEP, allow schools to provide free breakfast or lunch to all students without requiring individual annual applications.
See
USDA,
Provisions 1, 2, and 3, https://www.fns.usda.gov/cn/provisions-1-2-and-3
(last visited Jan. 14, 2022) (describing Provisions 2 and 3). Also, participation in the Summer School Food Service Program, which is separate from the school lunch and breakfast program, does not qualify a household to participate in the Affordable Connectivity Program.

43. Households who seek to enroll based on a current student's participation in a free and reduced price school lunch or breakfast program may qualify based on documentation from the current school year or the school year immediately preceding the application for the Affordable Connectivity Program. To qualify based on a household member's participation in a qualifying school lunch or breakfast program, the household member must be a current student at the time the ACP application is submitted. Program participants must notify their service providers if they are no longer eligible for the Affordable Connectivity Program, such as if no member of the household qualifies for the free and reduced price school lunch or breakfast programs or no member of the household attends school.

3. Enrollment of Eligible Households in the NLAD

44.
Use of the National Lifeline Accountability Database.
The NLAD will be used as a program-wide tool for enrollment, as well as the basis for reimbursement calculations and duplicate checks in all states, territories, and the District of Columbia, regardless of a State's NLAD opt-out status in the Lifeline program. Participating service providers must enroll all consumers participating in the Affordable Connectivity Program in the NLAD, regardless of whether the subscriber resides in a State that has opt-out status for the Lifeline program. The Commission directs USAC to make changes to the NLAD that are necessary to implement the rules and requirements that the Commission adopts in the Report and Order and to give participating service providers advance notice of any NLAD system changes for the Affordable Connectivity Program so they can make corresponding changes to their systems.

45. Eligible households can participate in both the Lifeline program and Affordable Connectivity Program for the same or different services. The Commission directs USAC to enable the NLAD to allow subscribers to have separate identifiers for the Lifeline program and the Affordable Connectivity Program, which can be associated with the corresponding Lifeline provider or Affordable Connectivity Program provider, as applicable.

46. Providers participating in the Affordable Connectivity Program must submit to the NLAD, at the time of enrollment, the same types of information that providers were required to submit to enroll households in the EBB Program. The required information sufficiently identifies the enrolled household for purposes of administering the program, including duplicate checks and verifying the applicant's status as alive, and provides information on the service, device, method of verifying eligibility and household qualification for the higher Tribal benefit level if applicable. Prior to transmitting subscriber information to the NLAD, service providers must also comply with the disclosure and consent requirements that the Commission adopts in the Report and Order and must submit changes to subscriber information to the NLAD within 10 business days.

47. Service providers are prohibited from enrolling or claiming ACP support if USAC cannot verify a subscriber's status as alive unless the subscriber provides documentation to demonstrate his or her status as alive. The Commission directs USAC to explore additional ways to improve the process, for example identifying and notifying service providers about potentially deceased subscribers, and to conduct program integrity reviews to ensure compliance with this requirement.

48.
Coordination With Lifeline Opt-Out States.
USAC and the three Lifeline opt-out states of Texas, California, and Oregon have worked together closely since the start of the EBB Program to streamline the enrollment of Lifeline

subscribers in those states into the EBB Program by providing weekly subscriber eligibility listing updates to USAC. To facilitate the enrollment of qualifying households in these states into the Affordable Connectivity Program, the Commission directs USAC to continue to work with these three states to explore additional ways to streamline and improve efficiency in the enrollment of Lifeline subscribers in these states into the Affordable Connectivity Program. Consumers in the Lifeline opt-out states can separately submit Affordable Connectivity Program applications, but they still need to undergo the applicable State eligibility processes.

4. Verifying Subscriber Eligibility and Identity

49. The Infrastructure Act maintained for the Affordable Connectivity Program the three methods for verifying household eligibility: The National Verifier, an approved service provider alternative verification process, and school-based eligibility verifications. Legacy EBB Program households who qualified under eligibility criteria that are still applicable to the Affordable Connectivity Program and households participating in Lifeline do not need to submit a new application or new eligibility documentation to participate in the Affordable Connectivity Program. However, existing Lifeline subscribers who do not already participate in the EBB Program will be required to affirmatively consent to participation in the Affordable Connectivity Program pursuant to the consumer consent and disclosure requirements outlined in the Order. Legacy EBB Program households are not required to provide new consent to continue the same service through the Affordable Connectivity Program with their current provider, except as may be required for the applicable transition path for that household.

50.
National Lifeline Eligibility Verifier.
The National Verifier is a system of systems with connections to State and Federal eligibility databases that can automatically check and confirm a household's eligibility electronically, followed by manual review of eligibility documentation for any applicants whose eligibility cannot be verified using an automated data source. The National Verifier has already been modified to make eligibility determinations based on the eligibility criteria that were added (WIC and income at or below 200% of the Federal Poverty Guidelines) and removed (substantial loss of income since February 29, 2020) in the Infrastructure Act for purposes of the Affordable Connectivity Program.

51. USAC's existing acceptable documentation guidelines must be used where manual reviews are conducted. The Commission directs the Bureau to coordinate with USAC to make changes to the documentation criteria as necessary to administer the Affordable Connectivity Program and promote program integrity.

52. The
ACP Public Notice
also sought comment on allowing applicants for the Affordable Connectivity Program to verify their identity through the last four digits of their social security number or other approved identity documentation, as was permitted for the EBB Program.
See ACP Public Notice,
86 FR at 74045, para. 39. Many commenters explained that this flexibility removed obstacles to enrollment and resulted in additional consumers applying for the EBB Program that would not have applied if they were required to provide the last four digits of their social security number. The Commission is persuaded that continuing this approach for the Affordable Connectivity Program is justified because it supports increased program participation. Therefore, the Commission allows consumers seeking to apply for the Affordable Connectivity Program to verify their identity through the last four digits of their social security number or other approved identity documentation, and it encourages consumers to provide the last four digits of their social security number because this significantly reduces the time required for identity and eligibility verifications.

53. The Bureau, in conjunction with USAC, has already developed approval criteria for acceptable identity documentation, which include a government-issued ID (such as a State ID), passport, U.S. driver's license, U.S. military ID, or Individual Taxpayer Identification documentation. The Commission directs the Bureau to coordinate with USAC to make changes to the identity documentation requirements as necessary to administer the program and promote program integrity and the Commission directs the Bureau to work with USAC to explore whether other systems or databases could be used to verify the identity of consumers who provide alternative documentation instead of the last four digits of their social security number.

54. The Commission does not allow any third party, whether a service provider or neutral third party entity, to remotely submit an Affordable Connectivity Program application on behalf of a consumer who is not physically present with the party providing assistance. Where the National Verifier is used to conduct eligibility verifications, prospective subscribers must interact directly with the National Verifier. Third parties can assist households with completing a paper or online application, provided that the applicant is physically present and certifies and signs the application.

55. Eligible households may experience difficulty accessing or navigating the National Verifier on their own, and may require assistance to complete and submit applications for the Affordable Connectivity Program. It may be beneficial to provide access to the National Verifier to a limited number of neutral, trusted third party entities, such as schools and school districts, or other local or State government entities, for purposes of assisting consumers with completing and submitting an application for the Affordable Connectivity Program, provided that the consumer is physically present with the person providing assistance. The Commission directs the Bureau, in coordination with USAC, to conduct a one year test pilot for granting State or Tribal entity representatives access to the National Verifier for purposes of assisting customers with applying for the Affordable Connectivity Program. Consistent with current practice in the Lifeline program, those that are granted access to the National Verifier in this Pilot will be required to register in the Representative Accountability Database (RAD). Government entities participating in this Pilot (such as schools) may enter into partnerships with neutral non-profit organizations for purposes of raising awareness about the Affordable Connectivity Program and increasing the enrollment of eligible households, provided that the government entity informs the Bureau that it is partnering with a specific non-profit organization, access to the National Verifier through the Pilot is limited to actual representatives of the participating government entity, and enrollment activities through the National Verifier take place in the government entity's facility or other location maintained or operated by the government entity. Entities participating in this Pilot (and their neutral non-profit partners as applicable) must maintain neutrality with respect to ACP participating providers when assisting consumers in connection with this Pilot. The Bureau shall determine the scope of this Pilot, and the process for identifying potential participants. The Bureau may issue public notices or

engage with stakeholders as needed to obtain information necessary to establish this Pilot, and may make any necessary changes to the National Verifier to conduct the Pilot. Consistent with the current enrollment processes, the Bureau shall make sure that appropriate safeguards are in place for the Pilot to protect applicant's personally identifiable information. At the completion of the Pilot, the Bureau will send a report to the Commission summarizing the results of the Pilot.

56.
Eligibility Verifications Through Approved Service Provider Alternative Verification Processes.
As with the EBB Program, Affordable Connectivity Program providers using an approved alternative verification process must keep all documentation provided to them from the applicant used to make eligibility determinations for the document retention period specified herein.

57.
School-Based Eligibility Verifications.
Service providers relying on school-based eligibility verifications must collect and retain documentation of (1) the school providing the information; (2) the program(s) that the school participates in; (3) the household that qualifies (and qualifying student(s)) and (4) the program(s) the household participates in). Service providers must obtain parental consent for school-based eligibility verifications. The Commission directs USAC to conduct quarterly program integrity reviews to ensure that households enrolled based on school-based eligibility verification process are eligible for the ACP benefit.

5. Household Usage Requirements

58.
Non-Usage Period and Cure Period.
The Commission adopts the Lifeline usage rules for the Affordable Connectivity Program. Under these rules, where a provider does not assess or collect a monthly fee from the subscriber for the supported service, the subscriber must use their service at least once every 30 days, and after 30 consecutive days of non-usage, the provider is required to notify the consumer that they will be de-enrolled if they do not cure their non-usage in 15 days. The Commission requires de-enrollment of ACP subscribers for non-usage. Providers are prohibited from claiming support for a subscriber who has not used their service in the last consecutive 30 days unless the subscriber cures their non-usage within 15 days.

59. The 30-day usage and 15-day cure period for the Lifeline program, for non-use of services where the end-user is not assessed and does not pay a fee, sufficiently balance consumer interests and fiscal responsibility for purposes of the Affordable Connectivity Program. The Commission also finds that there are significant benefits to applying a uniform subscriber usage requirement for both the Lifeline program and the Affordable Connectivity Program. Having inconsistent usage rules for Lifeline and the longer-term Affordable Connectivity Program would likely result in significant consumer confusion and complicate provider compliance given that many households will participate in both programs and certain households may use both benefits on the same service. Where a household uses a Lifeline benefit and an affordable connectivity benefit for the same service from the same provider, to avoid consumer confusion, upon the effective date of the subscriber usage requirements for the Affordable Connectivity Program, the provider should track each subscriber's non-usage using the same rolling 30-day period that it is using to track the subscriber's usage for Lifeline.

60. The Commission declines to limit the subscriber usage requirements to free-to-the-end-user wireless service because that approach would arbitrarily distinguish between free-to-the-end-user wireline and wireless service, while still allowing service providers to continue receiving an ACP benefit for free-to-the-end-user service where the subscriber is not actually using their service. The subscriber usage requirements apply to all modalities of free-to-the-end-user ACP service.

61. If the participating provider bills a subscriber on a monthly basis and collects or makes a good faith effort to collect any money owed within a reasonable amount of time, the subscriber will not be subject to the usage requirements. Participating providers that fail to take such steps and do not de-enroll subscribers pursuant to the non-usage requirements the Commission adopts for the Affordable Connectivity Program may be subject to enforcement action or withholding of support.

62.
Definition of Usage.
The Commission adopts the definition of usage under the EBB Program and Lifeline for the Affordable Connectivity Program. This definition lists other activities, aside from the subscriber's actual use of the supported free-to-the-end-user service, that are considered “usage” for purposes of the subscriber usage requirement. The Commission does not expand the list of activities that constitute usage to include activation of a modem because the activation of a modem without actual usage is not a strong indicator of a subscriber's intention to use their service and the risk of waste is too great to justify the expansion of the definition of “usage” to include simply activating a modem without actual use of the supported service.

63.
Usage Tracking and Documentation Requirements.
Service providers are responsible for tracking subscriber usage and retaining appropriate usage documentation for purposes of compliance with the non-usage requirements of the Affordable Connectivity Program. The Commission directs the Bureau, the Office of Managing Director (OMD), and USAC to continue to use audits and program integrity reviews to monitor participating provider compliance with the subscriber usage requirements.

64.
Annual Subscriber Recertification Requirement.
The Commission adopts an annual (
i.e.,
once per calendar year) recertification requirement to ensure the continued eligibility of participating households. ACP subscribers will be given 60 days to respond to a recertification effort. Subscribers who do not respond or fail ACP recertification shall be de-enrolled.

65. ACP households who are also enrolled in Lifeline may rely on their Lifeline recertification for purposes of the annual recertification requirement for the Affordable Connectivity Program, which will reduce administrative burdens for ACP households and participating service providers. Where a household enrolled in both Lifeline and the Affordable Connectivity Program does not respond or fails recertification for Lifeline, the subscriber will still have an opportunity to demonstrate their continued eligibility for the Affordable Connectivity Program. The Commission also directs USAC to identify and implement ways to coordinate consumer recertification outreach for the two programs to minimize consumer response burdens and reduce the potential for consumer confusion.

66. For purposes of the annual recertification requirement, consistent with the approach in Lifeline, USAC will conduct recertifications for ACP subscribers whose eligibility was verified through the National Verifier processes and for whom the automated database connections in the National Verifier will be used whenever possible to recertify eligibility. The Commission directs USAC to make available an online form, paper form, and Interactive Voice Response (IVR) option for recertifying the eligibility of ACP subscribers whose eligibility cannot be verified through the National Verifier automated database connections. For

USAC-conducted recertifications, USAC will be responsible for de-enrolling subscribers who do not respond or fail ACP recertification. For USAC-conducted subscriber recertifications, the Commission directs USAC to develop processes to inform participating providers about the status of USAC's recertification efforts and results for their specific ACP subscribers.

67. For households who enrolled in the Affordable Connectivity Program based on an approved alternative verification process or school-based eligibility verification, service providers will be required to conduct the subscriber recertification. For households enrolled in both Lifeline and the Affordable Connectivity Program, for purposes of recertifying eligibility for Lifeline, subscribers can only be recertified through the National Verifier or State process for the Lifeline NLAD opt-out states as applicable. Where the National Verifier did not initially verify subscribers' eligibility (such as where a provider's approved alternative verification process includes eligibility criteria that are unique to the provider's low-income program or where the provider, but not USAC, has already established a process with specific schools to verify subscriber eligibility based on participation in a free and reduced price school lunch or breakfast program) but the service provider decides to stop using these non-National Verifier methods to verify subscriber eligibility, the service provider shall notify USAC of that decision and USAC will recertify the impacted subscribers. Service providers conducting recertification based on these non-National Verifier subscriber eligibility verification methods are required to collect and retain the necessary subscriber eligibility documentation. In addition, where service providers conduct subscriber recertifications for the Affordable Connectivity Program, they must de-enroll subscribers who do not respond or are no longer eligible.

68. For purposes of this annual recertification requirement, new ACP subscribers who enrolled on or after December 31, 2021, will not be required to recertify their ACP eligibility until 2023. Legacy EBB subscribers who transitioned to the Affordable Connectivity Program will need to recertify their eligibility for the ACP by December 31, 2022. Legacy EBB Program subscribers who qualified for the EBB Program based on substantial loss of income or a provider's COVID-19 Program and already demonstrated their ACP eligibility before the end of the 60-day transition period will not be required to recertify for purposes of the Affordable Connectivity Program requirements again until 2023.

6. De-Enrollments

69. The Commission adopts for the Affordable Connectivity Program the same de-enrollment rules it adopted for the EBB Program and the Lifeline program, and continues to allow USAC to directly process de-enrollment requests from subscribers. For general de-enrollments and de-enrollments for duplicative support, service providers must process the de-enrollment within five business days after the expiration of the subscriber's deadline to demonstrate eligibility, or within five business days of notification from the Administrator that the subscriber is receiving more than one benefit per household. For de-enrollments initiated by the subscriber, the service provider must de-enroll the subscriber within two business days after the de-enrollment request.

70. ACP households who are subject to the usage requirement and do not cure their non-usage within 15 days must be de-enrolled, and subscribers who do not respond or fail recertification must also be de-enrolled. For de-enrollments for no response or failure to recertify, service providers must de-enroll the subscriber within five business days of the subscriber's time to respond to the recertification efforts. As with Lifeline and the EBB Program, when a service provider de-enrolls a subscriber from the Affordable Connectivity Program, the service provider must transmit to the NLAD the date of the Affordable Connectivity Program de-enrollment within one business day of de-enrollment.

C. Covered Services and Devices

71.
Services.
The Infrastructure Act permits eligible households participating in the Affordable Connectivity Program to receive a discount off the cost of broadband service and certain connected devices, and participating providers to receive a reimbursement for providing such discounts. The Infrastructure Act defines “internet service offering” as broadband internet access service provided to a household by a broadband provider, and retains the definition of broadband internet access service provided in 47 CFR 8.1(b). The Infrastructure Act further provides that the “affordable connectivity benefit” means a “monthly discount for an eligible household applied to the actual amount charged to such household.” The Commission interprets the Infrastructure Act's reference to a “monthly discount . . . applied to the actual amount charged” to exclude broadband service products that are based primarily on the data allowance of the product (for example, a purchase of 1 GB of data for $5.00) and are sold separate from a monthly recurring service plan. The Infrastructure Act's application of the affordable connectivity benefit as a monthly discount off the actual amount charged to the subscriber means that service plans that are already offered with no fee to the end user—for example, as a result of Lifeline program support or other benefit programs—are not eligible for additional or duplicative support from the Affordable Connectivity Program.

72. The Infrastructure Act adds a requirement that a participating provider “shall allow an eligible household to apply the affordable connectivity benefit to any internet service offering of the participating provider, at the same terms available to households that are not eligible households.” The Commission interprets “any internet service offering,” for any particular customer, to include any broadband internet plan in which the customer is currently enrolled (regardless of whether it is a legacy grandfathered plan) as well as any broadband internet plan that a provider currently offers to new customers. The requirement that legacy or grandfathered plans be eligible for reimbursement does not require that providers offer such legacy or grandfathered plans to other customers, including ACP-eligible customers, that are not already on such plans. However, providers may not exclude any of their generally available or actively sold internet service offerings from the affordable connectivity benefit.

73. Due to the volume and unique complexities of coding and including legacy or grandfathered plans in the Affordable Connectivity Program, the Commission finds that providers should have an additional 60 days after publication of the Order in the
Federal Register
to complete necessary changes and ensure that the affordable connectivity benefit can be applied to all generally available and currently sold plans. While providers must also allow existing subscribers to apply the affordable connectivity benefit to legacy or grandfathered plans, the Commission considers this requirement satisfied if providers accommodate requests by existing subscribers to apply the affordable connectivity benefit to legacy or grandfathered plans on a case-by-case basis no later than 60 days after the request.

74. Taxes and governmental fees may be included as part of the reimbursable internet service offering, since they are part of the “amount charged” to a consumer. By allowing the benefit to be applied to taxes and governmental fees, providers can extend to consumers $30 “all-in” broadband offers that include taxes and governmental fees and can avoid charging small bills for taxes and fees alone.

75. The Commission finds that the Infrastructure Act's requirement that providers allow an eligible household to apply the Affordable Connectivity Program benefit to “any internet service offering of the participating provider, at the same terms available to households that are not eligible households” does not preclude providers from making internet service offerings that are only available to ACP subscribers, provided that that the terms are at least as good as plans that are available to non-eligible households, and that providers cannot prevent subscribers from applying the affordable connectivity benefit to other available internet service offerings or restricting such internet service offerings in any way. However, to ensure minimal disruption to existing billing systems and processes, the Commission declines to require that providers participating in the Affordable Connectivity Program make available plans not available in a given geographic area that they offer elsewhere.

76. The Commission will collect data on the service plan characteristics—such as upload and download speeds, data allowances, and co-payment—associated with a subscriber's service plan, so it can gauge whether the Affordable Connectivity Program is providing value to households beyond what the Lifeline program offers and whether that value is in-line with market rates for broadband services, due to the immense value such data could provide. The Commission directs the Bureau and the Office of Economics and Analytics (OEA), with support from USAC, to determine appropriate avenues to collect service plan characteristics, such as possible future modifications to NLAD or conducting a provider survey, and the specific information that service providers must submit. The Commission directs the Bureau and OEA to balance the value of the information collected against the burden to service providers and must limit their efforts to those necessary to carry out the purposes of the Affordable Connectivity Program. Consumers would benefit from knowing which providers offer plans fully covered by the household discount and the availability of such plans in their area, so, the Commission directs USAC to make available, where possible, information about the availability of plans fully covered by the household discount. In doing so, USAC should consider planned information collections as well as other avenues for collecting this information while minimizing burden to providers.

77.
Minimum Service Standards.
Congress intended that “any internet service offering” be eligible for support in the Affordable Connectivity Program, 47 U.S.C. 1752(b)(7), and imposing minimum service standards would contradict the Infrastructure Act. Internet service offerings must include a broadband connection (as defined in 47 U.S.C. 1752(a)(8))—fixed or mobile—that permits households to rely on these connections for the purposes essential to telework, remote learning, and telehealth.

78.
Bulk purchasing arrangements and Multiple Dwelling Units (MDUs).
Eligible households that live at a single address, such as senior and student living, mobile home parks, apartment buildings, and Federal units, and that receive service as part of a bulk billing arrangement where the households are not directly billed for services by their internet service provider, but instead pay a monthly fee for broadband services to their landlord, should be permitted to participate in the Affordable Connectivity Program. In those situations, the participating provider claiming reimbursement must retain documentation demonstrating that the amount claimed by the provider is fully passed through to the eligible household as a discount off the monthly price that the eligible household otherwise would have paid to the bulk purchaser. Providers are required to retain documentation demonstrating the identity of the entity or entities through which the discount was passed, the eligible households who received the service, and consent by the eligible household allowing the participating provider to seek reimbursement. Homeless shelters, school districts, and libraries can also be considered bulk purchasers and allowed in the Affordable Connectivity Program, provided that the arrangements are set up in compliance with this Order.

79. Reimbursement will be permissible in MDUs—as it is with the typical provider/household relationship—where applying the affordable connectivity benefit to the household's broadband bill will result in the household not having a cost for broadband. In cases where the household does not pay a fee for the service, either to the provider or a bulk purchaser/aggregator, but the fee is paid by another entity, the service cannot be claimed for Affordable Connectivity Program support. However, if the household stops having the third party pay for the household's bill and instead seeks the discount through the Affordable Connectivity Program, the provider may seek reimbursement for the service.

80. In many cases, an MDU such as a large apartment building may have Wi-Fi deployed to an entire building as the broadband internet available to its residents. Such service qualifies as broadband internet access service eligible for reimbursement in the Affordable Connectivity Program, but eligible households must be charged a monthly fee for such service to be reimbursable.

81. A certification by the bulk purchasing entity that the discount from the service provider is fully passed through to the eligible households located in the MDU is not sufficient to demonstrate compliance with program rules. Documentation serves a critical role to protect against abuse in the program, and documentation requirements are particularly important where there is not a direct relationship between the broadband provider and the eligible household. The Commission therefore declines to allow a certification from the bulk purchaser as evidence that the discount has been passed through to the eligible household.

82.
Bundled Service Offerings.
Bundled service offerings such as those offering voice, data, and texting could be eligible for the affordable connectivity benefit, but the full benefit will not be allowed to be applied to the full price of broadband-bundled video service. While reimbursement cannot go toward the whole value of a bundle that includes video, the data, voice, and/or text messaging portions of the bundle can be reimbursable, but the video portion of any bundle must be apportioned out before determining the amount that is reimbursable for broadband purposes of the Affordable Connectivity Program. Fixed and mobile bundled services can be supported by the Affordable Connectivity Program, with the understanding that households with such bundles will only be entitled to a single benefit.

83.
Associated Equipment and Other Customer Premises Equipment.
The affordable connectivity benefit discount must be provided for internet service and associated equipment necessary for the transmission functions of the supported internet service offering,

including monthly rental costs for equipment such as modems, routers, and hotspot devices and antennas. Associated equipment should be eligible to be reimbursed as part of the service benefit.

84.
Connected Devices.
A participating provider that provides an ACP-supported broadband service to a household may be reimbursed up to $100 for a connected device delivered to the household, provided that the charge to such eligible household is more than $10 but less than $50 for such connected device (defined in the statute as a laptop, desktop computer, or a tablet). Because the statute does not include cellular phones or smartphones in the definition of “connected devices,” a connected device cannot include devices that can independently make cellular calls such as large phones or “phablets.”

85.
Minimum System Requirements for Connected Devices.
A connected device supported by the Affordable Connectivity Program must support video conferencing platforms and other software essential to ensure full participation in online learning, be Wi-Fi enabled, have video and camera functions, and be accessible to and usable by those with disabilities. The device must be able to connect to all Wi-Fi access points and cannot be limited to use with any specific service provider.

86.
Application of Section 54.10.
The requirements of 47 CFR 54.10 apply to the Affordable Connectivity Program. Thus, Affordable Connectivity Program funds cannot be used to purchase or obtain a connected device (
i.e.,
laptop, desktop computer, or tablet) that is on a Covered List—
i.e.,
“poses an unacceptable risk to the national security of the United States or the security and safety of United States persons.” 47 CFR 1.50002(b)(1). Providers must certify that the connected device that they are seeking reimbursement for complies with 47 CFR 54.10.

D. Reimbursement

1. Reimbursement for the Affordable Connectivity Benefit

87. The Commission adopts in its rules the Infrastructure Act's $30.00 standard monthly discount and reimbursement rate. To be reimbursed, providers are required to submit a reimbursement request based on the number of subscribers enrolled in NLAD on the snapshot date. Providers must review the snapshot report, validate the subscribers for which they are requesting reimbursement, indicate a reason for any unclaimed subscribers, and review, correct, and certify the requested reimbursement amount. The Commission will use the Lifeline Claims Systems to manage the reimbursement process for the Affordable Connectivity Program and will apply the uniform snapshot date approach for capturing the subscribers enrolled in NLAD on the first of the month that are eligible to be claimed for that month. The Commission declines to permit partial month, pro-rated reimbursement at this time.

88. The Commission requires that, when applying the affordable connectivity benefit to a Lifeline service, providers first apply the full Federal Lifeline subsidy and then the Federal affordable connectivity benefit. States may offer their own Lifeline and/or other broadband affordability benefits, and the Commission will defer to any State on how that additional benefit should be applied in conjunction with the Federal affordable connectivity benefit.

89. To ensure that providers have sufficient time to submit certified reimbursement claims and USAC can administer the program efficiently, providers are allowed six months from the uniform snapshot date, or the following business day in the event six months falls on a weekend or holiday, to submit to USAC their certified reimbursement claims for both service and connected device support for households captured on the snapshot report.

90. Providers may submit upward revisions to their certified claims within the same six-month time period after the snapshot date that certified reimbursement claims are due. Providers must disclose non-compliant conduct and return improperly received funds from this Program to the Commission and can submit downward revisions beyond the six-month time period. Moreover, providers cannot delay contacting USAC about the need to repay improperly received funds or downwardly revise their claims if they become aware of an improper payment.

91. The Commission delegates to the Bureau and OMD the authority to establish a different timeline to submit certified reimbursement claims and revisions to such claims as a result of projections and forecasts of when the Affordable Connectivity Fund is winding down or to the extent necessary to comply with government-wide Federal financial statutes and/or U.S. Treasury procedures.
See, e.g.,
31 U.S.C. 3528;
see also
47 CFR 0.11(a)(3)-(4), (a)(8) (scope of OMD's delegated authority); 47 CFR 0.5(e) (requiring Bureau and Office coordination with the Office of the Managing Director on recommendations “that may affect agency compliance with Federal financial management requirements”).

92.
Tribal Lands Benefit.
The Affordable Connectivity Program retains the enhanced, $75.00 per month subsidy for eligible households located on Tribal lands. The Commission uses the same definition of Tribal lands as used in the Lifeline and EBB Programs, including certain lands near the Navajo Nation treated as Tribal lands. Existing USAC processes will be used to verify eligibility of households on Tribal lands. The definition of Tribal lands from Lifeline includes any land designated as such pursuant to the designation process in 47 CFR 54.412.

93. The Infrastructure Act provides for a separate enhanced benefit for households that are served by providers in high-cost areas. 47 U.S.C. 1752(a)(7)(B). The Commission seeks comment on the implementation of this enhanced benefit in the Further Notice of Proposed Rulemaking.

94.
Certification Requirements.
The Infrastructure Act requires providers to certify that each household for which the provider is seeking reimbursements will not be charged an early termination fee if it later terminates a contract, that each household was not subject to a mandatory waiting period, and that each household will be subject to a participating provider's generally applicable terms and conditions. Providers are also required to certify that each household for which the provider is claiming reimbursement for a connected device discount has been charged the required co-pay. Providers claiming a household whose eligibility was determined by the provider's alternative verification process must also certify that such households were verified by a process that was designed to avoid waste, fraud and abuse. The Commission requires that these certifications accompany each request for reimbursement by participating providers, that each certification be submitted under penalty of perjury, and that the provider it has not charged and will not charge the household for the amount the provider is seeking for reimbursement. The Commission directs USAC to make any adjustments necessary to the LCS to ensure that providers are prompted to certify the statements included in 47 U.S.C. 1752(b)(6).

2. Reimbursement for Connected Devices

95. A provider may not receive reimbursement for more than one

connected device per household, 47 U.S.C. 1752(b)(5), and a household that received a connected device through the EBB Program may not receive another through the Affordable Connectivity Program.

96. A market value-based approach will be used for reimbursement of connected devices, with the enhanced accountability requirements discussed following. Under the market-based approach, providers may be reimbursed up to the statutory $100 limit, provided that the amount of reimbursement together with the co-pay does not exceed the market value of the connected device. 47 U.S.C. 1752(b)(5). Providers that seek device reimbursement through the Affordability Connectivity Program will be required to submit device characteristics as well as characteristics and retail price information about analogous devices. The price information from at least one of these analogous devices must be available from a major retailer, such as Amazon, Apple, B&H, BJ's, Barnes and Noble, Best Buy, Lenovo, Micro Center (Micro Electronics), Microsoft, Newegg, Office Depot, Office Max, Sam's Club, Samsung, Staples, Target, TigerDirect, and Walmart (not including third-party sellers on any of these retailers' websites). If a provider is unable to submit such information about comparable products, it will be required to substantiate its claim for the market value.

97. Providers seeking to claim reimbursement for connected device discounts must submit information regarding the device supplied to the household prior to claiming reimbursement for a connected device. The provider must submit information to USAC about device type, device make, device model, device characteristics (
e.g.,
screen size, storage, memory), subscriber ID of the household that received the device, date the device was delivered to the household, method used to provide the device (shipped, in store, or installed by provider), market value of the device, amount paid by the household to the provider for the device, and supporting documentation. The Commission also directs USAC to adjust the reimbursement amount for any connected device claim if the market value asserted by the provider does not reflect market value as compared to analogous devices offered by other participating providers or publicly available information.

98. Providers seeking reimbursement for a connected device must certify, under penalty of perjury, that the reimbursement claim for the connected device plus the co-pay amount collected from the customer does not exceed the device's market value. In addition, providers are required to retain any materials that document compliance with these requirements and demonstrate the accuracy of the information provided to USAC and make them available for inspection upon request.

99. Participating providers must actually charge the household a co-payment of more than $10 but less than $50 before they can receive reimbursement of up to $100 for a connected device. Providers are required to retain documentation proving that the eligible household made a compliant financial contribution towards the cost of the connected device, as well as the amount thereof, before the provider seeks reimbursement. Providers must update their election notices to include information on device type, device make, device model, and wholesale cost of the device. Proof of consumer payment of the appropriate co-pay amount must be provided upon request by USAC, the Bureau, the Enforcement Bureau (EB), or any other program auditor or investigator.

100. A provider may seek reimbursement for a connected device provided to a household that had been receiving an ACP-supported service from that provider at the time the device was supplied to the household, even if the household subsequently transfers its ACP service benefit to a different provider. The Commission directs USAC to maintain the connected device dispute process implemented for the EBB Program.

E. Consumer Protection

1. Credit Check Prohibition

101. The Infrastructure Act prohibits providers from “requir[ing] the eligible household to submit to a credit check in order to apply the affordable connectivity benefit.” 47 U.S.C. 1752(b)(7)(A)(ii). The Commission finds that this provision bars providers from considering the results of a credit check before deciding to enroll a household in the Affordable Connectivity Program, but it does not prohibit a provider from running credit checks that are routinely used as part of the provider's sign-up process for all consumers. Providers may not use credit check results to determine to which ACP-supported internet service plan an eligible household can apply their affordable connectivity benefit, to restrict the type of plans available to a household, or to decline to transfer a currently enrolled household's affordable connectivity benefit.

102. The Infrastructure Act does not prevent providers from running a credit check or from using the results of the credit check in other circumstances unrelated to the affordable connectivity benefit. The credit check provision does not prohibit providers from relying on the results of a credit check for an ACP-eligible household to determine the devices and equipment not supported by the Affordable Connectivity Program that may be offered to the household. The statute does not prohibit providers from using credit checks to determine a household's eligibility to access bundled services so long as the credit check is used to determine eligibility to receive the service that is not eligible for the affordable connectivity benefit and the household can receive the broadband component of the bundle on a standalone basis regardless of the results of the credit check. Finally, the Infrastructure Act's credit check provision should not be interpreted as preventing providers from running a credit check consistent with the requirements of the Federal Trade Commission's “Red Flag Laws.”

2. Non-Payment

103. The Infrastructure Act specifies that “a participating provider [may] terminat[e] the provision of broadband internet access service to a subscriber after 90 days of nonpayment.” 47 U.S.C. 1752(b)(7)(A)(ii). The 90 consecutive days of non-payment commences on the due date of the bill where payments made after that point for ACP-supported services would be past due. A bill is not considered “unpaid”—and thus, there is no “nonpayment”—until after the payment due date specified on the bill has passed and the subscriber has failed to satisfy the obligation to pay the bill in a timely manner. Accordingly, for purposes of 47 U.S.C. 1752(b)(7)(B), the 90-day period of “nonpayment” begins on the due date specified on the bill when the bill may be deemed “unpaid” and late fees may begin to accrue. This provision does not apply to prepaid plans because prepaid customers do not receive invoices and are not expected to pay at monthly intervals.

104. The Commission interprets the provision that allows providers to terminate service after 90 days of non-payment, in conjunction with the requirement that providers cannot decline to enroll an eligible household based on any “past or present arrearages with a broadband provider,” to mean that although a provider may terminate a household's broadband service after

90 days of non-payment, the provider cannot deny a household's re-enrollment based on past or present arrearages. When providers re-enroll ACP households whose service is terminated for non-payment, they may limit the offerings made available to the household to offerings that would be fully covered by the affordable connectivity benefit and any other applicable benefit, such as Lifeline, will protect consumers and providers by limiting the accrual of any additional ACP-related debt. Households that are downgraded from their current grandfathered or legacy plan must be permitted to return to that grandfathered or legacy plan at a later time. However, a provider may decline to return a household to a grandfathered or legacy plan if the provider would have been within its rights to remove the household from that plan irrespective of that household's participation in Affordable Connectivity Program. Limiting the plans available to a household as described here would not constitute inappropriate downselling.

105. The Commission clarifies that the termination for non-payment is limited to debts associated with any out-of-pocket expenses for the ACP-supported service, and providers should not consider any non-payment associated with non-ACP supported services, EBB-supported service, or other debt that predates the Affordable Connectivity Program.

106. Providers may downgrade a household to a lower-priced service plan once the consumer enters a delinquent status after the bill due date to mitigate the non-payment amount upon advance notice to the household of the change in service. Such a transfer of a household in non-payment status to a lower-priced service plan in order to mitigate the non-payment does not constitute inappropriate downselling.

107. A provider must take apply the affordable connectivity benefit to a household's account no later than the start of the first billing cycle after the household's enrollment. A provider must pass through the discount in order to claim reimbursement for the discount in the Affordable Connectivity Program. Providers may not, for example, charge a customer for the internet service offering, certify a claim for reimbursement, and then later provide the discount to the customer only after receiving the reimbursement. Failure to comply with these rules may result in administrative forfeitures or other penalties.

108. A provider cannot de-enroll a household for non-payment if the provider has failed to timely apply the benefit to the household's bill consistent with this Order. To track households that could be de-enrolled for non-payment associated with the ACP-supported service, as well as to support tracking households which would be subject to the non-usage rules, the Commission directs USAC to collect from providers information regarding whether a household is assessed and charged a fee for the ACP-supported service. Providers must certify, under penalty of perjury, that the affordable connectivity benefit was in fact applied to the households for which the provider is submitting a claim for reimbursement. Providers must document and retain proof that the program benefit was in fact applied to the household's account prior to the provider submitting a claim for reimbursement for that household.

109. Participating providers must give adequate notice to a household of their delinquent status before terminating the household's service for non-payment. The provider must provide the household written notice of the possible termination 60 and 30 days prior to the termination date, which must be set from the due date of the bill. The written notice must include the balance due to the provider, the due date for the outstanding balance, the last date of service if the outstanding balance is not paid, instructions for payment, and the provider's customer service phone number. Notice must also be provided in formats accessible to individuals with disabilities, and may be delivered via email, mail, billing insert or statement, or text message. Providers must retain documentation of notice sent to the household before the household is disconnected for non-payment. Households that dispute an allegation of non-payment with the provider may file a complaint with the FCC's Consumer Complaint Center.

3. Consumer Complaint Process

110.
Dedicated ACP Complaint Process.
The Infrastructure Act requires the Commission to establish a dedicated complaint process for Affordable Connectivity Program participants to file complaints about the compliance of participating providers with program rules and requirements, including complaints “with respect to the quality of service received under the Program.” 47 U.S.C. 1752(b)(9)(A). The Commission is adding a dedicated pathway within its existing consumer complaint process in the Consumer Complaint Center to file ACP-related complaints, including notification to providers that the complaint involves the Affordable Connectivity Program, clear direction to consumers on how to correctly file an ACP complaint, and dedicated FCC staff from Consumer and Governmental Affairs Bureau (CGB) to review and process the complaints.

111.
Provision of Information on the Dedicated ACP Complaint Process.
The Infrastructure Act also requires participating providers to provide Affordable Connectivity Program participants with information on the Commission's dedicated complaint process. 47 U.S.C. 1752(b)(9)(B). The Commission requires participating providers to prominently display the Commission's contact center phone number and the website address for the Consumer Complaint Center on the subscriber's bill and on the provider's ACP web page. The Commission also requires participating providers to inform consumers of their right to file a complaint with the Commission regarding an ACP-supported service or any difficulty enrolling with the provider. Participating providers must provide this information to ACP consumers in the formats proposed in the
ACP Public Notice. ACP Public Notice,
86 FR at 74043, para. 87
Reports Regarding Consumer Complaints.
The Infrastructure Act also requires the Commission to regularly issue public reports regarding consumer complaints alleging provider non-compliance with the Affordable Connectivity Program rules. 47 U.S.C. 1752(b)(9)(D). The Commission directs CGB, in coordination with the Bureau, to regularly issue public reports regarding consumer complaints alleging provider non-compliance with ACP rules, to make these reports available to the public via the FCC website, and, in coordination with the Bureau and the Senior Agency Official for Privacy, to ensure that any personally identifiable information (PII) be excluded from complaint reports and data made publicly available to ensure compliance with the Privacy Act, 5 U.S.C. 552a.

112.
Investigations and Enforcement.
The Infrastructure Act also requires the Commission to act expeditiously to investigate potential violations of program rules and requirements and enforce compliance, and it permits the Commission to impose forfeiture penalties to enforce compliance. 47 U.S.C. 1752(b)(9)(C)(i)-(ii). The Commission will use its existing, statutorily permitted enforcement powers to initiate investigations of program rule violations and directs EB, in coordination with the Bureau and law enforcement as applicable, to expeditiously investigate potential violations of and enforce the ACP rules.

4. Additional Consumer Protections

a. Administrative Procedure

113. The Infrastructure Act directs the Commission to promulgate certain specific consumer protection rules “after providing notice and opportunity for comment in accordance with [5 U.S.C.] 553,” which sets forth the rulemaking requirements of the Administrative Procedure Act (APA). 47 U.S.C. 1752(b)(11)(A). At the same time, 47 U.S.C. 1752(h) provides an exemption from APA requirements for “regulation[s] promulgated under subsection (c),”and 47 U.S.C. 1752(c) requires that the Commission “promulgate regulations to implement” these requirements by a date “not later than 60 days after enactment of this Act” and specifies initial comment and reply comment periods of 20 days each.

114. The Commission believes that there is no irreconcilable conflict between these provisions and that, read together, they support the adoption of the 47 U.S.C. 1752(b)(11) consumer protection rules here. By referring to the APA specifically in 47 U.S.C. 1752(b)(11), Congress intended to emphasize that the Commission should carefully consider the input of commenters in crafting the consumer protection rules. Given the tight, statutorily mandated timeframe for standing up the Affordable Connectivity Program and the essentiality of consumer protection rules to the proper functioning of the program, the Commission finds that the notice and comment process the Commission has provided, in accordance with 47 U.S.C. 1752(c), is sufficient to satisfy the APA requirements in 5 U.S.C. 553(b). The
ACP Public Notice
was published in the
Federal Register
on December 29, 2021 (
see
86 FR 74036) and it contains the information specified in section 553(b)(1)-(3), including detailed questions about the particular inappropriate practices referenced in 47 U.S.C. 1752(b)(11). Given the requirements in the Act to commence the rulemaking implementing the Affordable Connectivity Program within five days of the enactment of the Act and to adopt program rules within 60 days, and the inextricable relationship between the consumer protection rules and the other components of the program, the Commission finds that it has satisfied the notice requirement in 5 U.S.C. 553(b), as well as the requirements in 5 U.S.C. 553(c) to “give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments” and to “consider[ ] the relevant matter presented” in those submissions when formulating the consumer protection rules.

115. Moreover, in the alternative, to the extent the procedures required by 47 U.S.C. 1752(c) cannot be squared with the process required by 47 U.S.C. 1752(b)(11), the Commission finds “good cause” to depart from the standard APA notice and comment procedures because placing the consumer protection rules on a delayed track would be “impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(3)(B). It would be impracticable and contrary to the public interest to adopt consumer protection rules using procedures that would operate more slowly than those the Commission use to adopt the rules implementing other aspects of the Affordable Connectivity Program. The consumer protection rules are among the core components of the program, and allowing the rest of the program to take effect without having the statutorily-mandated consumer protections in place at the outset of the program would undermine the overall scheme. The Affordable Connectivity Program will enable eligible consumers to apply the Affordable Connectivity Benefit to “any” internet service offering of a participating provider, 47 U.S.C. 1752(b)(7), and consumers could effectively be denied that entitlement if participating providers were allowed to engage in harmful business practices that could trap consumers in poor service and deny households of the full benefit and freedom to choose an appropriate service.
See
47 U.S.C. 1752(b)(11)(A). Consistent with this determination, the Commission also finds under the Congressional Review Act that there is good cause to expedite the effective date of these rules and not to delay their effective date for 60 days pending Congressional review.
See
5 U.S.C. 808(2).

b. Consumer Protection Requirements Pursuant to 47 U.S.C. 1752(b)(11)

116.
Upselling and Downselling.
The Infrastructure Act requires the Commission to promulgate rules prohibiting any inappropriate upselling or downselling by a participating provider. 47 U.S.C. 1752(b)(11)(A)(i). Inappropriate upselling in the context of the Affordable Connectivity Program is any business practice that pressures a prospective or existing subscriber to purchase a service plan or bundled plan in addition to or that is more expensive than what the subscriber initially sought. For example, requiring a household to select or switch to a higher-cost service plan with their existing provider before the provider will enroll the household or before the provider will apply the affordable connectivity benefit to the household's account constitutes inappropriate upselling and is prohibited. Similarly, if a provider offers a particular broadband service offering either as part of a bundled plan with other services or on a stand-alone basis, the provider may not require an eligible household to purchase the bundled plan or any other services included in the bundle as a mandatory condition in order to select that broadband internet access service plan for purchase or application of the affordable connectivity benefit. Nor may the provider exert pressure on the household to purchase the bundled plan or the other services included in such a plan, rather than the individual broadband internet access service on a stand-alone basis. And even if a particular type of modem, router, or other associated equipment is technically necessary in order to use a specific type of broadband internet access service, a participating provider may not compel or pressure an eligible household to purchase or rent such equipment from the provider in conjunction with selecting (or applying the benefit to) that type of service if the needed equipment is also available from other vendors and the household could opt to obtain it from someone other than the provider.

117. However, communicating information regarding higher-speed or higher-priced service tiers is not in itself prohibited upselling in the absence of further evidence. In fact, given the monthly subsidy available in the program, a fully informed consumer may choose to subscribe to a more expensive plan that better meets the needs of the household. To ensure that consumers are sufficiently informed of the available options, the Commission requires providers to inform prospective and current subscribers seeking to enroll in the Affordable Connectivity Program or seeking to change service plans of all ACP-supported plans available in the household's service area that are fully covered by the affordable connectivity benefit. Such plan information is required to be presented along with the required disclosures a provider must present to households prior to enrollment, described further following. The creation or promotion of new service plans specially priced for eligible households in the Affordable Connectivity Program does not constitute inappropriate upselling.

118. Inappropriate downselling in the context of the Affordable Connectivity Program is any business practice that pressures a subscriber to lower the

quality of broadband service (such as reducing bandwidth or speed, or adding or lowering data caps that would not meet the participating household's needs) to the benefit of the provider rather than the consumer. Not all downselling should be prohibited: Merely suggesting or mentioning the availability of a lower-price service plan(s) that would satisfy consumers' broadband needs is permitted. However, certain practices may constitute inappropriate downselling and should be prohibited to avoid potential consumer harm. Specifically, the Commission prohibits a provider from requiring a prospective or current household to change to a lower-cost service plan or to choose from a set of specific low-cost service plans before permitting the household to enroll in the program or before applying the affordable connectivity benefit to the household's account. Inappropriate downselling also includes business practices that aim to benefit the provider (such as minimizing the provider's out-of-pocket expenses) with no actual benefit to the consumer. For example, suggesting only low-quality service plans with a low data cap or low speed simply to benefit the provider and without regard to consumer need would be prohibited inappropriate downselling.

119.
Extended Service Contracts.
The Infrastructure Act requires that the Commission promulgate rules that would protect ACP consumers from any inappropriate requirements that a consumer opt-in to an extended service contract as a condition of participating in the Affordable Connectivity Program. 47 U.S.C. 1752(b)(11)(A)(i). While not all extended service contracts are prohibited in the Affordable Connectivity Program, providers are prohibited from requiring agreement to an extended service plan as a condition of receiving the affordable connectivity benefit. An extended service contract is typically an offer of service at a discount price in exchange fo

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-02887. Public record. Not legal advice.