Analysis

The Biggest Telecom Developments Of 2021: Midyear Report

By Kelcee Griffis
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Law360 (July 21, 2021, 7:06 PM EDT) -- The first half of 2021 has ushered in the creation of two major programs to increase internet access in light of the COVID-19 pandemic and has seen the Federal Communications Commission advance a slate of bipartisan initiatives in the absence of a fifth member. Here, Law360 recaps some of the most prominent FCC actions and other regulatory activity over the last six months.

Pandemic Response

Under acting Chairwoman Jessica Rosenworcel's leadership, the FCC hustled to set up both the Emergency Broadband Benefit and the Emergency Connectivity Fund — two programs designed to help people afford their internet bills and stay connected for online learning.

Established by Congress in late 2020, the Emergency Broadband Benefit, or EBB, subsidizes up to $50 of a qualifying household's monthly internet bill or up to $75 for monthly internet service on tribal lands. It can also cover $100 toward a one-time equipment purchase that would allow households to get online as long as the household purchases the equipment through its internet provider. The discounts will end when the $3.2 billion pool of federal funding is exhausted.

The $7.1 billion Emergency Connectivity Fund, or ECF, part of a sweeping pandemic relief package authorized in March, will reimburse schools and libraries for "laptop and tablet computers, Wi-Fi hotspots, and broadband connectivity for students, school staff, and library patrons in need during the COVID-19 pandemic."

Both programs target glaring gaps in internet access and adoption, and although temporary they could provide blueprints for longer-running programs, said Stephanie Weiner, a telecom partner at Harris Wiltshire & Grannis LLP.

"The commission, I think, has done a tremendous job implementing these new emergency programs to get at what became clear to everybody, which is the importance of connectivity for everything. That has always been true, but it became undeniable [during the pandemic]," she said. "It's important to start, even now, thinking about what comes next."

Still, the EBB rollout hasn't been perfect. Law360 analyzed over 300 consumer complaints filed during the EBB's first three weeks and found that some internet service providers forced consumers to change plans in order to get the $50 monthly subsidy or struggled to validate customers' already-established eligibility to participate.

Ari Fitzgerald, a Hogan Lovells partner who leads the firm's communications, internet and media practice, said he was disappointed that Rosenworcel's chosen structure for the EBB "tended to favor wireline broadband over wireless." Still, he said both programs have immense promise for helping consumers weather the pandemic and beyond.

"I'll give her a B when it comes to implementing the EBB. The commission should have been more tech-neutral," he said. "I'll give her an A when it comes to implementing the ECF."

Broadband Availability

The Biden administration made other moves to get more consumers online this year, releasing a sweeping competition-focused executive order that included broadband-related provisions and expanding efforts to map where broadband service does and doesn't exist.

The executive order, released in early July to mixed reviews, seeks to "save Americans money on their internet bills" by asking the FCC to crack down on exclusive deals sometimes struck between internet service providers and landlords, revive a broadband pricing transparency initiative and clamp down on "excessive" fees charged to switch providers.

To prevent companies from "discriminatorily slowing down internet access," the order also asks the FCC to reinstate Obama-era net neutrality rules, which mandated that ISPs could not interfere with the transmission of web content.

The executive order shows "continued focus on strengthening consumer protections across the board," said Mark Brennan, a Hogan Lovells partner who leads the firm's global technology and telecommunications industry sector group.

However, Perkins Coie LLP partner Marc Martin cautioned that the telecom aspects of the order are less a directive and more of a wish list to an independent agency, and it will be up to the FCC to decide when and how to act.

"None of [the items] are self-executing, so there's a question of whether anything will come of it," said Martin, who chairs Perkins Coie's communications industry group.

Funding for broadband expansion also emerged as a priority in Congress as lawmakers struggled to hammer out a comprehensive infrastructure package. While federal lawmakers have yet to agree on threshold broadband speeds and the areas targeted for expanded service, some form of internet infrastructure funding is expected to emerge as an element of the final package.

At the same time, the FCC started a long-awaited update to its data on where broadband service does and does not exist, which informs where the federal government should target connectivity subsidies. A new FCC task force was launched in the spring, using funding from the Broadband Data Act, to create a long-anticipated, comprehensive mapping framework that includes crowd-sourced data.

Amid this process, the U.S. Department of Commerce's National Telecommunications and Information Administration released a digital mapping tool that swiftly drew a congressional inquiry about its possibly incomplete data sources.

Congressional Republicans and Republican FCC Commissioner Brendan Carr have expressed dismay over how long it is taking to complete the comprehensive map. However, Hogan Lovells' Fitzgerald countered that the accuracy of the project needs to be prioritized over speed.

"It's a longer-term project that shouldn't be rushed. It needs to be done well because there's a lot of taxpayer money at stake," he said.

FCC Leadership

The FCC advanced a bipartisan agenda this year, often focused on uncontroversial topics such as extending internet subsidies during the pandemic, cracking down on robocalls and insulating domestic communications networks from foreign equipment threats. However, these successes are tempered by the fact that the Biden administration has yet to nominate a third Democratic commissioner and to designate a permanent FCC chair.

This means that the agency's hands are tied on more controversial items, like reinstating net neutrality, for the near future.

"It makes it challenging for the FCC to make bigger decisions when there's not a permanent chair and a full complement of commissioners," said Weiner of Harris Wiltshire.

If the administration chooses to designate Rosenworcel as permanent chairwoman, she will create a dynamic duo with the noted Big Tech critic who recently took the helm of the Federal Trade Commission, said Steptoe & Johnson LLP partner Pantelis Michalopoulos.

Both Rosenworcel and FTC Chair Lina Khan have a passion for implementing aggressive consumer protections, and Khan's antitrust theories could combine well with Rosenworcel's leadership experience, Michalopoulos said, allowing them to pressure telecom companies on two fronts.

"It could be a combination made in heaven of the two chairs," he said.

--Editing by Jill Coffey.

For a reprint of this article, please contact reprints@law360.com.

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