Simington Nomination Could Affect Lifeline MSS Order; Other Efforts Stalled
Stalled efforts at the FCC to deal with a looming, automatic increase in data requirements for Lifeline providers, which the agency itself said is “flawed,” could be affected by the ramped-up process to nominate a new FCC commissioner, but probably won’t, FCC and industry officials told us (see 2008240024). “There are broader issues at play” with prospective commissioner and current NTIA official Nathan Simington’s nomination, said United Church of Christ attorney Cheryl Leanza. Other industry officials noted the debate over Section 230 of the Communications Decency Act and the outcome of the presidential election as likely factors in Simington’s prospects (see 2009280038).
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A circulated draft order from Chairman Ajit Pai that would change the 2020 Lifeline increase of the current minimum service standard (MSS) requirement of 3 GB a month from 11.75 GB to 4.5 GB is stalled, with votes only from Pai and Commissioner Brendan Carr. A needed third vote could come from Simington, if he were confirmed before the Dec.1 trigger for the automatic increase. Carriers, public interest groups and a bipartisan mix of legislators see both the automatic increase and the proposed 4.5 GB order as severely damaging to the Lifeline program. Industry attorneys said it would be unlikely for Simington’s confirmation to go that quickly, despite the recently accelerated process (see 2010150069). The FCC and Simington didn’t comment.
Simington hasn’t taken a public position on Lifeline, and it isn’t clear how he would vote. Several industry attorneys said they expect he would likely vote with Pai, as Carr has and as the current occupant of Simington’s prospective seat -- Commissioner Mike O’Rielly -- usually has. “I should hope that a new commissioner would want to do no harm and look at the facts before supporting a new unfunded mandate,” said attorney Judson Hill, who represents Lifeline provider TruConnect.
There’s no sign of FCC action on the waiver of the automatic increase to 11.75 GB requested by carriers, industry attorneys and FCC officials said. No proposals to act on the petition, grant a freeze of the increase or change the draft order to a lower compromise number have been acted on, an FCC official said. It could be possible for Pai’s office to allow the matter to be addressed at the bureau level, an industry attorney suggested. But “4.5 is no better than 11,” Leanza said. “If you can’t do it, you can’t do it.”
Time is getting tight for Lifeline providers and customers, said Hill. If the data requirement goes up, providers will have to charge their customers to compensate, causing many Lifeline customers -- who often don’t have banks or credit cards -- to no longer be able to use the program, he said. The FCC will have “knowingly disconnected them in the midst of a pandemic,” Hill said. “It is not speculative what the results will be.” Most states require that customers be notified of a price increase within 30 days, and Lifeline provider Tracfone has already begun informing customers of an upcoming increase, Hill said.
Since the process that created the automatic increase is the product of a previous FCC, and Pai already has made an overture with the stalled draft order, it's possible he could take no further action and allow the increase to happen, Lifeline industry attorneys said. The chairman’s office could then argue the commissioners who declined to vote for the 4.5 GB order allowed the MSS increase to occur. “If the chairman would really focus on it he would see this is an important order,” Leanza said. “He does care about the digital divide. If you care about that I don’t see how you could let this happen.”
“I always have a glimmer of hope,” Hill said. He said the industry will focus on lobbying legislators to pressure Pai. There was a fraught process over a waiver for the automatic increase in 2019 as well, and it was resolved shortly before Thanksgiving, industry attorneys told us. That means the situation could change with more time, they said.