[Federal Register Volume 86, Number 28 (Friday, February 12, 2021)]
[Proposed Rules]
[Pages 9309-9312]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-02997]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[WC Docket No. 21-31; DA 21-98; FRS 17466]


Wireline Competition Bureau Seeks Comment on Petitions for 
Emergency Relief To Allow the Use of E-Rate Funds To Support Remote 
Learning During the COVID-19 Pandemic

AGENCY: Federal Communications Commission.

ACTION: Solicitation of comments.

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SUMMARY: In this document, the Wireline Competition Bureau (the Bureau) 
seeks comment on petitions for emergency relief from parties asking the 
Federal Communications Commission (Commission) to permit the use of E-
Rate program funds to support remote learning during this unprecedented 
public health emergency.

DATES: Comments are due February 16, 2021 and Reply Comments are due 
February 23, 2021.

ADDRESSES: Pursuant to sections 1.415 and 1.419 of the Commission's 
rules, 47 CFR 1.415, 1.419, interested parties may file comments on or 
before February 16, 2021, and reply comments on or before February 23, 
2021. All filings should refer to WC Docket No. 21-31. Comments may be 
filed by paper or by using the Commission's Electronic Comment Filing 
System (ECFS). See Electronic Filing of Documents in Rulemaking 
Proceedings, 63 FR 24121 (1998).
    [ssquf] Electronic Filers: Comments and replies may be filed 
electronically using the internet by accessing ECFS: http://www.fcc.gov/ecfs.
    [ssquf] Paper Filers: Parties who choose to file by paper must file 
an original and one copy of each filing. If more than one docket or 
rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    [ssquf] Filings can be sent by commercial overnight courier or by 
first-class or overnight U.S. Postal Service mail. Filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    [ssquf] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 45 L St NE, Washington, DC 20554.
    Effective March 19, 2020, and until further notice, the Commission 
no longer accepts any hand or messenger delivered filings. This is a 
temporary measure taken to help protect the health and safety of 
individuals, and to mitigate the transmission of COVID-19.

FOR FURTHER INFORMATION CONTACT: Gabriela Gross, Wireline Competition 
Bureau, (202) 418-7400 or by email at [email protected]. We ask 
that requests for accommodations be made as soon as possible in order 
to allow the agency to satisfy such requests whenever possible. Send an 
email to [email protected] or call the Consumer

[[Page 9310]]

and Governmental Affairs Bureau at (202) 418-0530

SUPPLEMENTARY INFORMATION: This is a summary of the Bureau's Public 
Notice in WC Docket No. 21-31; DA 21-98, released on February 1, 2021. 
Due to the COVID-19 pandemic, the Commission's headquarters will be 
closed to the general public until further notice. See FCC Announces 
Closure of FCC Headquarters Open Window and Change in Hand-Delivery 
Policy, Public Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy. The full text of this document is available at the following 
internet address: https://www.fcc.gov/document/fcc-seeks-comment-using-e-rate-funding-support-remote-learning.
    Proceedings in this document shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte 
rules. Persons making ex parte presentations must file a copy of any 
written presentation or a memorandum summarizing any oral presentation 
within two business days after the presentation (unless a different 
deadline applicable to the Sunshine period applies). Persons making 
oral ex parte presentations are reminded that memoranda summarizing the 
presentation must list all persons attending or otherwise participating 
in the meeting at which the ex parte presentation was made, and 
summarize all data presented and arguments made during the 
presentation. If the presentation consisted in whole or in part of the 
presentation of data or arguments already reflected in the presenter's 
written comments, memoranda or other filings in the proceeding, the 
presenter may provide citations to such data or arguments in his or her 
prior comments, memoranda, or other filings (specifying the relevant 
page and/or paragraph numbers where such data or arguments can be 
found) in lieu of summarizing them in the memorandum. Documents shown 
or given to Commission staff during ex parte meetings are deemed to be 
written ex parte presentations and must be filed consistent with rule 
Sec.  1.1206(b). In proceedings governed by rule Sec.  1.49(f) or for 
which the Commission has made available a method of electronic filing, 
written ex parte presentations and memoranda summarizing oral ex parte 
presentations, and all attachments thereto, must be filed through the 
electronic comment filing system available for that proceeding, and 
must be filed in their native format (e.g., .doc, .xml, .ppt, 
searchable .pdf). Participants in these proceedings should familiarize 
themselves with the Commission's ex parte rules.
    The COVID-19 pandemic has underscored the critical need for 
broadband connections for millions of Americans, including students and 
teachers across the country. To mitigate the spread of the disease, 
schools and libraries have shut their doors and transitioned to remote 
learning and virtual services, either in whole or in part, leaving 
those students who found themselves caught in the ``Homework Gap'' 
before the pandemic facing extraordinary hardship and at risk of being 
unable to participate in any virtual studies.
    As a result of the impact of the COVID-19 pandemic on schools and 
libraries, the Commission has received at least 11 petitions for 
emergency relief from parties asking the FCC to permit the use of E-
Rate program funds to support remote learning during this unprecedented 
public health emergency (collectively, Petitions). By this document, 
the Bureau seeks comment on those Petitions. In so doing, the Bureau 
highlights three of the petitions, that together raise most of the 
issues covered by other Petitioners: A petition filed by a coalition of 
E-Rate stakeholders led by the Schools, Health & Libraries Broadband 
(SHLB) Coalition, a petition for waiver filed on behalf of the State of 
Colorado and one filed by the State of Nevada, the Nevada State Board 
of Education, and the Nevada Department of Education.
    As the pandemic continues to force schools and libraries across the 
country to remain closed and rely on remote learning and virtual 
services, either in whole or in part, the need for broadband 
connections--particularly for those students, teachers, staff, and 
patrons that lack an adequate connection at home--is more critical than 
ever. Eligible schools and libraries explain that they are hampered in 
their ability to address the connectivity needs brought on, and in many 
cases exacerbated, by COVID-19 because of the restrictions on off-
campus use of E-Rate-funded services and facilities. Last spring, as 
the COVID-19 pandemic forced schools and libraries to grapple with the 
challenges of transitioning to remote learning, the FCC began to 
receive requests for emergency relief aimed at ensuring that all 
students have sufficient connectivity at home. Below, the Bureau 
summarizes three petitions, which reflect the experience of schools and 
libraries dealing with many months of remote learning.
    Most recently, a coalition of stakeholders led by SHLB filed a 
petition for declaratory ruling and waivers asking the FCC to allow E-
Rate-funded services and equipment to be used off-campus to enable 
remote learning for the duration of the pandemic. SHLB urges the 
Bureau, on delegated authority, to declare that during the pandemic, 
remote learning meets the standard of serving an ``educational 
purpose'' and thus, any off-campus use does not need to be removed from 
funding requests. SHLB also proposes opening a separate ``Remote 
Learning Application Filing Window'' to allow applicants to file new or 
revised requests for additional E-Rate funds for off-campus services 
and equipment that facilitate remote learning during funding years 2020 
and 2021. SHLB recommends that the FCC provide unused E-Rate funds to 
support these Remote Learning applications and use the existing E-Rate 
discount methodologies to prioritize funding. SHLB further requests a 
waiver of E-Rate program rules, including the competitive bidding, 
application, and eligible services rules to facilitate the Remote 
Learning Application Filing Window.
    Last fall, Colorado filed a petition requesting waiver of the 
prohibition on the use of E-Rate funds and E-Rate-funded facilities and 
services to allow schools to extend their broadband internet 
connectivity to students who lack adequate internet connectivity at 
home, and the requirement to cost-allocate such off-campus use. 
Colorado explains that temporarily waiving the restrictions on off-
campus use of E-Rate-supported equipment and services is consistent 
with the Communications Act, which requires the Commission to provide 
support for services that ``are essential to education, public health, 
or public safety'' and ``are consistent with the public interest, 
convenience, and necessity.'' Colorado further explains that because 
the school classroom has shifted from a shared physical space to a 
virtual space during the pandemic, the Commission can and should waive 
the E-Rate program requirements accordingly to provide students with 
the broadband internet connectivity needed to fully engage in remote 
learning. Colorado contends that the FCC can rely on the same statutory 
authority to allow schools to extend connectivity to students' homes 
that the Commission relied on to establish the Connected Care Pilot 
Program, which funds the purchase of internet access service for 
participating telehealth patients' remote use.
    Last summer, Nevada filed a request for waiver of the restrictions 
on the use of E-Rate-funded broadband

[[Page 9311]]

connectivity beyond school property. Nevada proposes to install fixed 
wireless hotspots on the roofs of school buildings to extend their E-
Rate-funded broadband internet connectivity to a two-to-three-mile 
radius around each school site for students' and staff's use. Nevada 
specifies that access to the schools' networks would be restricted to 
students and staff through specific credentials or by their registered 
devices. According to Nevada, by leveraging existing fiber connections, 
fixed wireless hotspots could ``bridge 60% of the current connectivity 
gaps that exist due to geographic and economic limitations across the 
State.''
    The Bureau seeks comment on these and the other issues raised by 
the three above-referenced petitions as well as the other petitions. To 
focus our consideration of the requests, the Bureau offers some more 
specific areas of inquiry.
    The Bureau seeks comment on the specific equipment and services 
that E-Rate should support to fund off-campus access to broadband 
services for students, staff and patrons who lack adequate home 
internet access. For example, the SHLB Petition requests E-Rate support 
for wired or wireless network equipment and services necessary for 
remote learning, including, but not limited to, wireless hotspot 
devices and fixed or mobile wireless towers. Do other commenters agree 
that these services and equipment are needed to support remote 
learning? Are there other or different services or equipment that are 
needed to support remote learning? For example, should modems, routers, 
devices that combine a modem and router, or connected devices be 
eligible? With respect to broadband connectivity, what level of service 
is required to support remote learning? The Bureau also seeks comment 
on the cost of the services and equipment needed to support remote 
learning. The Bureau encourages schools, libraries and other 
stakeholders that have recent experience with these services and costs 
to provide specific information about the services they are purchasing, 
the costs they are paying and what they have done to ensure the 
services are sufficient and the costs are reasonable.
    E-Rate program rules require applicants to select the most cost-
effective service offering, consistent with section 254(h)(2)(A) of the 
Act. Competitive bidding is a cornerstone of the E-Rate program, 
ensuring that applicants are informed of their options and service 
providers have sufficient information to provide services, leading to 
cost-effective pricing, and protecting limited E-Rate funds from waste, 
fraud, and abuse. At the same time, due to the urgency with which 
schools have needed to adapt to remote learning, both the Colorado and 
SHLB Petitions seek waivers of competitive bidding rules. In the 
absence of such a safeguard, how can the Commission ensure that 
applicants are making cost-effective purchases? Is payment of the non-
discount share a sufficient incentive to prevent wasteful spending? 
Would the same be true if adjustments are made to the non-discount 
share? What steps have schools and libraries that are currently 
providing off-premises broadband services to students, staff and 
patrons taken to ensure that they are making cost effective purchases? 
What other limitations or guardrails exist or are necessary to prevent 
waste, fraud, or abuse of E-Rate program funds? Should, for example, 
the Commission subject recipients of E-rate funds for remote learning 
equipment and services to audits similar to those conducted in the 
regular E-Rate program? Should the Commission apply existing E-Rate 
program record keeping requirements to any funds it provides to enable 
remote learning? What other measures should the FCC use to safeguard 
these funds and ensure they are used to target students and teachers 
who lack sufficient internet access at home?
    Publicly available information strongly suggests that substantially 
more funding might be needed than is potentially available through the 
E-Rate program. In the event that demand exceeds available funding, how 
should the off-campus requests be prioritized? The Bureau seeks comment 
on the best approach to quickly and equitably make funding available to 
those with the most need.
    How can the Commission ensure that available funds are efficiently 
targeted and focused on the needs of rural students; Native American, 
African American and LatinX students; students with disabilities; and 
other populations of students that are disproportionally affected by 
the Homework Gap or are more expensive or difficult to reach? Does the 
E-Rate program's existing discount rate system adequately target 
students that fall into the Homework Gap, especially low-income 
students and those in rural or remote areas? How can the Commission 
prioritize limited E-Rate support to those students, staff, or patrons 
that still do not have adequate home internet access to fully engage in 
remote learning?
    Colorado requests that the Commission waive its restrictions on 
off-campus use of E-Rate-supported services during the COVID-19 
pandemic and asserts that remote learning will remain a significant, if 
not exclusive, mode of instruction through at least the 2020-21 school 
year. SHLB requests that the Commission waive its restrictions on off-
campus use for funding years 2020 and 2021, due to the uncertainties of 
whether students will be able to return to the classrooms during the 
upcoming 2021-2022 school year. If relief is granted to the 
Petitioners, should the relief provided apply on a prospective basis in 
order to target the students and staff that remain without adequate 
home internet access? Or, recognizing that COVID-19 has forced schools 
and libraries across the country to dramatically shift the way they 
operate and provide education and library services since the first 
closures began in March 2020, should the relief provided apply 
retroactively to services and equipment purchased during funding year 
2020? If funding is allowed for prior purchases, how can the Commission 
ensure that limited E-Rate funds are not used to pay for services and 
equipment that were reimbursed with other federal funding, including 
funding made available through the CARES Act or through the Emergency 
Broadband Benefits Program? Commenters should explain how the funding 
sought through the E-Rate program to address insufficient internet 
access at home would not be duplicative of funding available through 
the Emergency Broadband Benefits Program. What are the guardrails or 
other measures that should be used to avoid duplication of limited 
funds and ensure the funds are targeted to students and teachers 
lacking adequate internet access at home? Should the Commission 
prioritize prospective relief over reimbursements for prior purchases? 
What should be the timeframe for this relief? Should it start when the 
COVID-19 pandemic was declared a national emergency? Should it end when 
the national emergency is rescinded, or should another marker be used 
to define this period?
    According to SHLB and Colorado, allowing E-Rate-funded off-campus 
support for students with inadequate internet access at home during the 
pandemic is consistent with the Commission's authority to determine 
which services to support under the Communications Act. SHLB explains 
that the Commission can clarify that off-campus use of equipment to 
support remote learning during the pandemic constitutes an educational 
purpose under section 254(h)(1)(B). Colorado asserts that the 
inaccessibility of physical classrooms during the

[[Page 9312]]

pandemic enables the Commission to deem at-home connectivity eligible 
for these purposes under section 254(c)(1), which requires the 
Commission to take into consideration, when determining eligible 
services, which services ``are essential to education, public health, 
or public safety'' and ``are consistent with the public interest, 
convenience, and necessity.'' SHLB offers a variety of arguments for 
rejecting suggestions that the reference to ``classrooms'' in section 
254(b)(6) and 254(h)(2)(A) which provide that ``[t]he Commission shall 
establish competitively neutral rules . . . to enhance, to the extent 
technically feasible and economically reasonable, access to advanced 
telecommunications and information services for all public and 
nonprofit elementary and secondary school classrooms . . . .'' limits 
the Commission's ability to provide E-Rate supported broadband for 
remote learning. SHLB points out that the Commission already provides 
E-rate support for some off-campus services and echoes Colorado's 
argument that during the pandemic students' and teachers' homes have 
become virtual classrooms. Both SHLB and Colorado argue that the 
Commission relied on its authority under section 254(h)(2)(A) of the 
Act to allow health care providers to purchase internet access services 
for participating patients' use in their homes or mobile locations 
during the pandemic in the Connected Care Pilot Program and can take a 
similar action in the E-Rate program. They also both point out that the 
Commission has the statutory authority to designate additional E-Rate 
supported services. The Bureau invites other stakeholders to comment on 
the Commission's legal authority to use E-Rate funding to help address 
the remote learning challenges created by the COVID-19 Pandemic.

Federal Communications Commission.
Cheryl Callahan,
Assistant Chief, Telecommunications Access Policy Division Wireline 
Competition Bureau.
[FR Doc. 2021-02997 Filed 2-10-21; 4:15 pm]
BILLING CODE 6712-01-P