FCC Issues Final Rules on Emergency Connectivity Fund

Earlier this week the FCC released its final Report and Order implementing the $7.171 billion Emergency Connectivity Fund (ECF) established in the American Rescue Plan Act.  The rules allow eligible schools and libraries to seek funding for purchases of eligible equipment and advanced telecommunications and information services to meet the remote learning needs of students, school staff, and library patrons who would otherwise lack access to connected devices and broadband connections during the upcoming school year.  The rules will take effect upon publication in the Federal Register.

The Commission directs USAC to open an initial 45-day ECF filing window “as soon as practicable” during which applicants will be able to submit requests for funding for purchases made between July 1, 2021 and June 30, 2022.  If there are remaining funds after this initial application window, the Commission may open a second application window for schools and libraries to seek funding for eligible equipment and services purchased from March 1, 2020 to June 30, 2021. However, in the event that demand for prospective support in the first window appears to be far short of meeting current needs, the Commission may consider opening a second prospective window before opening an application window to fund previous purchases.  (Note that this is a change (requested by Commissioner Carr) from the draft Report and Order, which had prioritized previous purchases over prospective purchases.)

Below is a brief summary of a few provisions of the Order that may be of interest.  There are other provisions of the rules, including application and reimbursement processes, and more context in the Order that I have not summarized here so please be sure to review the Order and rules if you are considering participating in the ECF. 

• The following types of equipment are eligible for support: Wi-Fi hotspots, modems, routers, devices that combine a modem and router, and connected devices.  This includes air-cards used to connect end-user devices to the Internet through cellular data services.  The term “connected devices” means laptop computers or tablet computers that are capable of connecting to advanced telecommunications and information services. Connected devices do not include desktop computers or smartphones.
• The Order adopts $400 as the maximum reasonable cost (meaning, the maximum amount eligible for ECF funding) for connected devices.  Applicants may request a waiver if the reasonable cost to purchase devices for students, school staff, or patrons with disabilities is higher than $400 and the public interest warrants deviation from the general rule.
• The Order adopts $250 as the maximum reasonable cost for a Wi-Fi hotspot.
• For other equipment, the Order directs USAC to “identify applications that are out of line with the funding requests of other applicants” and delegates authority to the Wireline Competition Bureau to provide guidance to USAC.
• Unless there is no Internet access service available to purchase in an area, the “advanced telecommunications or information services” eligible for reimbursement is limited to the purchase by schools and libraries of a commercially available service providing a fixed or mobile broadband Internet access connection for off-campus use by students, school staff, or library patrons.
• This excludes dark fiber, and the construction of new networks, including the construction of self-provisioned networks, with one exception:
• Where there are no commercially available broadband Internet access services available, schools and libraries may seek ECF support to construct or self-provision networks to connect students, school staff, and library patrons during the COVID-19 emergency period who would otherwise not be connected to the Internet (and will not have to engage in competitive bidding).  However, applicants must (among other things) demonstrate that there were no commercially available Internet access service options sufficient to support remote learning from one or a combination of providers.  The rules require these applicants to certify that they “sought service from existing service providers in the relevant area and that such service providers were unable or unwilling to provide broadband Internet access services sufficient to meet the remote learning needs of their students, school staff, or library patrons.”
• The Order directs USAC to “review applications for commercially available advanced telecommunications and information services and identify the applications with outlying costs” and delegates authority to the Wireline Competition Bureau to “provide guidance to USAC on how to determine the reasonableness of such costs.” Based on the record, “we expect that most of the applications for support for broadband Internet access services will be for services purchased under bulk purchase agreements, and we expect services to generally be in the range suggested by commenters between $10 and $25 per month.”  The Order recognizes that not all schools and libraries will be able to benefit from such bulk purchasing arrangements, however, and directs that “USAC and the Bureau should make use of the reasonable comparability benchmarks established for the High Cost Universal Service Support Program.”
• There are no minimum service standards for eligible services, but the service must include a fixed or mobile broadband connection that permits students, school staff, or library patrons to use those connections for remote learning or library services.  
• ECF-supported equipment and services must be used primarily for “educational purposes,” which is defined as activities that are integral, immediate, and proximate to the education of students in the case of a school, and activities that are integral, immediate, and proximate to the provision of library services to library patrons in the case of a library.  In the case of schools, the provision of eligible equipment and services for school staff is limited to school staff that will be providing (or provided) educational services and would otherwise lack access to connected devices or broadband connections sufficient to facilitate remote learning during the pandemic.  (The Order recognizes that “it is only reasonable that schools and libraries be given the flexibility to allow the use of eligible equipment and services for other purposes when they are not needed for educational purposes in the first instance.”)
• With respect to eligible locations, the Order “permit[s] eligible schools and libraries to seek and receive support for the purchase of eligible equipment and services for use by students, school staff, and library patrons at locations that include, but are not limited to, the homes of students, school staff, and library patrons; community centers; churches; and any other off-campus locations where they are engaged in remote learning activities.”  The Commission intends “to provide flexibility to eligible schools and libraries to determine the service locations that best fit their needs … .”  The Order prohibits schools and libraries from seeking or receiving reimbursement for eligible equipment and services purchased for use solely at the school or library, but “[i]f those connected devices were purchased for the purpose of providing students, school staff, and library patrons with devices for off-campus use consistent with the rules we adopt today, we will not prohibit such on-campus use.”
• An eligible school or library may not apply for support for more than one fixed broadband Internet access connection per location nor purchase more than one connected device or more than one Wi-Fi hotspot per student, school staff member, or library patron during the COVID-19 emergency period.
• Eligible schools and libraries may use ECF to purchase Wi-Fi hotspots for school buses and bookmobiles to provide off-campus broadband services to students, school staff, and library patrons.

One last note is that the final rules incorporate data collection obligations proposed by Commissioner Starks.  As described in the Order, the Commission will “collect schools’ and school districts’ best estimates about the number of students in their school or school district who did not have access to adequate connected devices, broadband connections, or both when the pandemic began; the number of students who do not currently have access to adequate connected devices, broadband Internet access connections, or both; and how they expect those numbers to change with receipt of requested Emergency Connectivity Fund Program support.”  The Order does not have specific requirements for collecting data: “Given the pressing demands on schools, we will not dictate specific data collection requirements, but instead will ask each school or school district to describe how and when they collected the information that they use for the estimates provided in their responses.”