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Law360 (June 24, 2020, 7:11 PM EDT) -- Senators grilled the full Federal Communications Commission on Wednesday over whether the agency could allocate funding for student broadband more aggressively, with at least two Democratic lawmakers suggesting the FCC can immediately broaden its policies to facilitate at-home learning.
During a Senate Commerce Committee oversight hearing, which is held periodically to check on regulators under the committee's purview, Sen. Richard Blumenthal,, D-Conn., asked FCC Chairman Ajit Pai why his agency hasn't decided its E-Rate program, which generally subsidizes on-campus connections for K-12 schools, can extend beyond shuttered classrooms during the pandemic.
Blumenthal said many school districts facing the threat of the novel coronavirus will likely lose another semester of on-campus learning, which means that the so-called homework gap could turn into a "national scandal." While the FCC has relaxed some of its subsidy funding rules, Blumenthal pointed out that the FCC hasn't waived rules so it can provide devices and connections directly to students.
"You've taken some narrow and limited steps, but why not go further to waive those E-Rate rules?" Blumenthal asked.
Pai replied that he is bound by statute to apply E-Rate funding only for connections in physical classrooms, and while he asked Congress to include authority for at-home educational broadband in the Coronavirus Aid, Relief and Economic Security Act, lawmakers declined.
But Democratic FCC Commissioner Jessica Rosenworcel testified that she believes the agency has sufficient wiggle room to reinterpret its E-Rate framework and allow for direct home broadband funding.
"There's a reference to classrooms, but those classrooms are now online. In addition, there's references to using additional services for educational purposes," she said of the underlying statute. "We're tying ourselves in knots, and by doing so, we're not helping students who really need to be connected."
Later in the hearing, Sen. Brian Schatz, D-Hawaii, backed up Rosenworcel and Blumenthal, sternly questioning Pai about his decision to continue interpreting the E-Rate funding mechanism narrowly.
"The definition of a classroom under the statute for E-Rate certainly could be captured by an online classroom," Schatz said. "I'm just wondering why you've chosen to interpret this statute in the middle of a pandemic so narrowly, because the consequences are so dire here."
Pai responded that he shares Schatz's frustration but that he's "always happy to look at new legal arguments about this issue" if Congress wants to present them.
Schatz also took a swipe at the FCC over an upcoming plan to distribute a new phase of rural broadband funding in October, questioning why the agency won't fix its wildly inaccurate broadband maps before it distributes the funds.
"This is a significant investment ... and certainly it is an incomplete picture as we deploy billions and billions of dollars," he said.
The funding scheme, known as the Rural Digital Opportunity Fund, is poised to distribute $20.4 billion over a decade to telecom companies that commit to building internet infrastructure in places that lack it. Beginning in October, the funds would be distributed in a two-phase auction format, beginning with areas that are completely disconnected.
When pressed by Sen. Roger Wicker, R-Miss., Rosenworcel acknowledged that the areas identified to benefit from Phase I funding are most likely to wholly lack broadband service. However, she said the agency should decrease the amount of funding currently allocated to Phase I because it still includes many unknowns.
"They are the areas that we more conclusively know that there is not service today," she said. "But I think taking 80% of our funds for the next 10 years and doing this without fixing our data is a mistake. We should find a way to be both fast and accurate."
She also acknowledged that Wicker's new bill to more quickly release Phase I funds to qualifying telecom companies "has a certain sense to it."
--Editing by Alyssa Miller.
For a reprint of this article, please contact reprints@law360.com.
