By Kelcee Griffis

Law360 (March 18, 2020, 7:19 PM EDT) -- As large amounts of daytime internet traffic shift from offices and schools to home networks, telecom experts predict that for most users, the existing web infrastructure is robust enough to handle the upswing in streaming, conference calling and distance learning. That may not be the case for low-income Americans who struggle to get online in the first place, however.

While general WiFi users may see bottlenecks at times, advocates assert that preserving internet access for low-income Americans will dominate as a larger issue amid the coronavirus pandemic.

Those most likely to suffer from low-quality internet — or a lack of a connection at all — are cash-strapped families that rely on prepaid phone plans, broadband plans with data caps and access to networks at now-shuttered schools and libraries. Although federal regulators are limited in what they can require providers to make available to low-income users, they can persuade them to temporarily offer more robust services or can ease restrictions on government programs designed to encourage service to underserved communities.

Regulators and community institutions will have to think creatively about how to address those shortcomings, according to John Windhausen, executive director of the Schools, Health and Libraries Broadband Coalition.

"The backhaul portions of the network are going to operate just fine because really a lot of the traffic is going to be [simply] shifting from one location to another location," Windhausen said. "The problem is going to be in the last-mile connections to the home that may not have enough capacity."

To that end, the Federal Communications Commission has been taking steps to open up additional spectrum capacity to internet service providers, waiving certain rules for participation in internet subsidy programs and discouraging ISPs from discontinuing customer services.

The FCC announced this week that nearly 200 phone and internet providers have pledged not to discontinue service to any customers, as well as promising to waive late payment fees and open carrier-specific Wi-Fi hot spots to the general public.

However, these actions likely won't be enough to keep vulnerable populations connected at a time when millions of Americans are being told to work, learn and play indoors, said Gigi Sohn, a fellow at the Georgetown Law Institute for Technology Law and Policy.

She noted that the FCC gave up direct authority over ISPs when it repealed its net neutrality rules in 2017, reclassifying broadband service as a Title I information service that must be overseen by the Federal Trade Commission instead.

This means that the FCC must resort to "twisting arms and begging" ISPs to be generous with customers, she said. Although some ISPs have indeed responded by offering free internet services to customers, there's no direct regulator to solidify or prolong the offers, she said.

With schools and libraries across the country closing down to prevent the spread of the coronavirus, Sohn suggested that the agency could make more subsidy funding available for them to buy and lend mobile hot spots. Agency rules don't currently allow E-Rate funding recipients to provide connectivity to people outside of libraries and school campuses.

"Right now, E-Rate doesn't cover things that aren't in the classroom," she said.

On Wednesday, the FCC waived a rule in order to allow E-Rate recipients to accept capacity upgrades and other in-kind "gifts" from ISPs. Windhausen suggested that the FCC could go a step further and establish a new subsidy program under the FCC's Universal Service Fund umbrella, which generally subsidizes internet and phone connections for consumers, as well as communications infrastructure in hard-to-reach areas via four existing programs.

While some lawmakers have suggested spending E-Rate funds that are typically reserved for schools and libraries on external connectivity projects, Windhausen said those uses would likely get tied up in red tape. Instead, kick-starting a fifth, "emergency" fund under the USF umbrella could help institutions buy lending hot spots without the complex rules surrounding E-Rate expenditures.

"We really don't have time for" circumnavigating E-Rate rules, he said. "I think we really need a separate program that would authorize schools and libraries to purchase this equipment without competitive bidding ... and seek reimbursement for those costs afterward."

There is precedent for such a thing. FCC Commissioner Brendan Carr has championed a pilot program that helps patients get home connections so they can benefit from telehealth programs, drawing authority from the USF's broad mandate to serve all Americans with adequate broadband service. Windhausen said a similar source of authority could be appropriate here.

Perhaps a simpler fix would be a clarification from the FCC that schools and libraries are allowed to leave their WiFi routers on even after their buildings are vacated, removing the fear that institutions could lose their E-Rate funding if they enable connectivity for the general public.

Pennsylvania's Schlow Centre Region Library, a SHLB member, is one institution taking such a liberty. The library is advertising its parking lot as a place locals can congregate to access the internet from the safety of their vehicles. Nathaniel Rasmussen, head of the library's IT services, told Law360 that this is a gray area under E-Rate funding rules, and that his region is choosing to err on the side of helping their community. "The decision wasn't very difficult for us," he said.

Our member @SchlowLibrary is closed due to #COVID19. Nonetheless, they've left their #WiFi network open and are welcoming any who need to access the internet from their parking lot.

This is one of the many reasons we ❤️ community anchor institutions. pic.twitter.com/vcFMf30kzR

— SHLB Coalition (@SHLBCoalition) March 17, 2020

"That doesn't cost any more money. There's no additional rules," said Windhausen, whose group represents the Schlow library. "There would just have to be an FCC clarification, and that's something they could do immediately."

Despite gaps in connectivity for some Americans, former FCC Commissioner Robert McDowell suggested that the general public needn't worry about networks' ability to handle a shift in at-home usage. Much of the business-hours internet traffic is now being carried over residential connections that might not be as robust as commercial-grade internet, but he said that shouldn't prove a major barrier for most users.

"Overall, the internet's infrastructure should weather the coronavirus phenomenon just fine. The amount of internet traffic isn't going to increase per se," said McDowell, who is now a communications partner at Cooley LLP. "In the vast majority of instances, however, consumers shouldn't be able to perceive a difference."

If insufficient capacity does become an issue, state governments may find they have a role to play, said Randolph J. May, president of free-market think tank the Free State Foundation.

Cities that have in the past resisted pressure to streamline approval processes for new mobile infrastructure might have to ramp up their efforts and expedite the addition of new wireless small cells. Deploying more of these localized signal boosters could take the strain off of some overloaded mobile networks, May said.

"It may be that the localities are going to ... need to really adjust and waive some of their requirements for siting and deployment of cell equipment so that additional cell sites can be added much more quickly," he said.

Certain macro towers across the country that are tied up in litigation over proper regulatory reviews could be switched on as well, said Marc S. Martin, a Perkins Coie LLP partner who chairs the firm's communications practice.

"While the 'race to 5G' wasn't seen as an adequate reason to preempt or disregard environmental and historic preservation requirements, the exigent circumstances of a pandemic might be a rationale to revisit this effort," he told Law360.

As it becomes more apparent how the FCC could address capacity issues related to coronavirus disruptions in the future, Martin said the agency shouldn't hesitate to flex its rulemaking muscles for fear that courts will find it overstepped its boundaries.

"Here, there is little doubt that a global pandemic is a genuine emergency," he said. "So to the extent the FCC could adopt any rules that would address the pandemic crisis, it should be able to do so very quickly."

--Editing by Brian Baresch.

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