[Federal Register Volume 88, Number 9 (Friday, January 13, 2023)]
[Rules and Regulations]
[Pages 2248-2268]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-28435]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[WC Docket Nos. 21-450; FCC 22-87; FRS 120419]


Affordable Connectivity Program; Emergency Broadband Benefit 
Program

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In the Fourth Report and Order, the Federal Communications 
Commission (Commission or FCC) establishes the Affordable Connectivity 
Program (or ACP) Transparency Data Collection, which will collect 
information related to the price, subscription rates, and plan 
characteristics of the internet service offerings of Affordable 
Connectivity Program participating providers as required by the 
Infrastructure Investment and Jobs Act (Infrastructure Act).

DATES: Effective February 13, 2023, except for instruction 3 (Sec.  
54.1813(b) through (d)) which is delayed indefinitely. The Commission 
will publish a document in the Federal Register announcing the 
effective date for those sections after the Office of Management and 
Budget approval of the information collection requirements as

[[Page 2249]]

required by the Paperwork Reduction Act.

FOR FURTHER INFORMATION CONTACT: Eric Wu, Attorney Advisor, 
Telecommunications Access Policy Division, Wireline Competition Bureau, 
at (202) 418-7400 or [email protected].

SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's 
Fourth Report and Order (Order) in WC Docket Nos. 21-450, FCC 22-87, 
adopted on November 15, 2022 and released on November 23, 2022. The 
full text of this document is available at https://docs.fcc.gov/public/attachments/FCC-22-87A1.pdf. The Further Notice of Proposed Rulemaking 
(FNPRM) that was adopted concurrently with the Fourth Report and Order 
is to be published elsewhere in the Federal Register.

I. Introduction

    1. In the Order, the Commission establishes the ACP Transparency 
Data Collection, which will collect information related to the price, 
subscription rates, and plan characteristics of the internet service 
offerings of ACP participating providers as required by Infrastructure 
Act.
    2. The Order fulfills the Congressional mandate to issue final ACP 
Transparency Data Collection rules regarding the annual collection of 
information related to the price and subscription rates of internet 
service offerings of ACP providers to which an ACP household 
subscribes, no later than one year after the enactment of the 
Infrastructure Act.
    3. The ACP Transparency Data Collection that the Commission 
establishes will offer an opportunity to collect detailed data about 
the services to which households in the Affordable Connectivity Program 
chose to apply the affordable connectivity benefit. The ACP 
Transparency Data Collection will further leverage information required 
for the broadband consumer labels, helping to create efficiencies and 
minimize burdens on providers. The actions the Commission takes in 
response to Congress's directive will allow the Commission to determine 
the value being provided by the affordable connectivity benefit to 
households, and to evaluate our progress towards the program goal of 
reducing the digital divide, while also balancing the privacy interests 
of consumers and minimizing burdens on the ACP participating providers 
that serve the nearly 15 million households enrolled in the Affordable 
Connectivity Program.

II. Discussion

    4. In the Order, the Commission establishes the requirements for 
the ACP Transparency Data Collection as required by the Infrastructure 
Act. The Commission discusses the entities required to submit data, the 
aggregated data to be collected, the timing of the collection, the 
publication of data, and other administrative aspects of the ACP 
Transparency Data Collection.
    5. Data Filers. The Commission first establishes that all providers 
participating in the Affordable Connectivity Program with enrolled 
subscribers are required to submit data for the ACP Transparency Data 
Collection. The City of New York agrees that the Infrastructure Act 
requires all providers participating in the Affordable Connectivity 
Program to submit data for the ACP Transparency Data Collection, and 
the Commission did not receive any other comments regarding this 
requirement. The Infrastructure Act is clear that the Commission is 
mandated to collect data relating to the price and subscription rate of 
``each internet service offering of a participating provider'' to which 
an eligible household subscribes. The statute has no limiting language 
to permit the Commission to exclude certain providers based on their 
size, location, subscribers served, or other characteristics, and the 
Commission sees no reason to permit any such exclusions. Moreover, 
requiring all providers to submit data for all subscribers will help 
the Commission study and evaluate the ACP-supported services received 
by all subscribers across a diverse group of providers that offer a 
variety of services and products across the United States, and give a 
transparent overview of the broadband plans subscribed to by the 
households enrolled in the Affordable Connectivity Program. The 
Commission therefore requires every provider participating in the 
Affordable Connectivity Program to submit data for the ACP Transparency 
Data Collection.
    6. Collection Structure, Aggregate Collection. The Commission next 
establishes an aggregate collection that is designed to capture 
information about ACP-supported services consistent with the 
Infrastructure Act. In the ACP Data Collection Notice, 87 FR 37459, 
June 23, 2022, the Commission sought comment on whether to collect data 
at the subscriber level or aggregate level. In a subscriber-level 
collection, price and plan characteristics for each subscriber in the 
Affordable Connectivity Program would be submitted by providers, 
whereas in an aggregate-level collection, providers would submit to the 
Commission the number of subscribers for each unique plan for a given 
geographic area (such as by state). Given these options, the Commission 
proposed using the National Lifeline Accountability Database (NLAD) to 
collect subscriber-level data at every enrollment, explaining that such 
a collection may prioritize ease-of-use for service providers and 
minimize administrative burdens, and the Commission sought comment on 
that approach.
    7. In response, many providers argue that an NLAD-based subscriber-
level collection would be more burdensome than an aggregate collection. 
Specifically, providers comment that an NLAD-based subscriber-level 
collection would require all providers to ``pull and report each 
subscriber's personal information,'' retrain staff, and seek consent 
from existing subscribers, in addition to making substantial system 
updates. Commenters contend that potential subscribers that are already 
hesitant to enroll in government programs may have that hesitancy 
exacerbated by a request to share information with a government entity. 
Commenters also point out that NLAD would require modifications to 
accept the additional information. CTIA claims that the Infrastructure 
Act ``specifically directs the FCC to conduct the data collection in a 
manner that minimizes burdens on providers'' and that the record 
demonstrates that the NLAD-based subscriber-level approach would impose 
significant burdens. In addition, some commenters feel that a 
``continuous'' NLAD-based subscriber-level collection is not consistent 
with the ``annual collection by the Commission relating to the price 
and subscription rates of each internet service offering'' as required 
by the Infrastructure Act. Conversely, several commenters suggest that 
an NLAD-based subscriber-level collection would be more beneficial than 
an aggregate collection when it comes to analyzing data, and would also 
ease administrative burdens. In sum, the record shows that most 
providers view an aggregate data collection as the least burdensome 
option.
    8. Based upon the record, the Commission declines to adopt a 
subscriber-level approach for the ACP Transparency Data Collection at 
this time, finding that the subscriber-level approach as proposed by 
the Commission may conflict with the statutory requirement to stand up 
an annual collection and may be too administratively burdensome for 
subscribers and providers, particularly

[[Page 2250]]

with respect to obtaining subscriber consent to the collection of 
additional subscriber-specific data and in light of privacy concerns.
    9. First, the Infrastructure Act requires the Commission to 
establish ``an annual collection,'' and the Commission finds support in 
the record for concluding that an aggregate collection would satisfy 
that requirement. As described further in the following, the collection 
the Commission establishes in the Order requires providers to submit 
information as of a particular date and by a deadline. There is little 
doubt that a collection with a single submission date in a year would 
be an annual collection. It is less clear whether a subscriber-level 
collection would comply with the statutory requirement. A subscriber-
level approach, as the Commission proposes, would require providers to 
submit price and plan information each time a consenting subscriber 
enrolls in the program, which as NTCA argues, could happen so 
frequently that it would be difficult to describe as an annual 
collection. Additionally, a subscriber-level collection would possibly 
also require providers to separately collect data from subscribers who 
were already enrolled in the Affordable Connectivity Program prior to 
the data collection rules becoming effective. The Commission finds that 
the statutory language requiring an annual collection weighs heavily in 
favor of an aggregated approach.
    10. Second, the Commission is mindful of the burdens associated 
with collecting subscriber consent to the collection of subscriber-
specific data. The ACP Data Collection Notice pointed out that 
collecting subscriber-level data implicates statutory privacy regimes 
such as the Electronic Communications Privacy Act (ECPA), section 222 
of the Communications Act of 1934, as amended, and section 631 of the 
Cable Communications Policy Act of 1984 (Cable Act), which limit the 
extent to which providers may disclose information about subscribers, 
including to the government. Each of these statutes allows providers to 
disclose subscriber-level information, however, if the subscriber 
consents, and every commenter in the record to address subscriber 
consent maintains that obtaining it is necessary to collect subscriber 
data not already collected under ACP rules.
    11. Providers argue collecting consent from new and existing 
subscribers would be administratively burdensome, particularly for 
smaller providers. There is also a concern, particularly where mistrust 
of government programs is high, that seeking consent to disclose 
additional information from subscribers could have a chilling effect on 
subscriber participation in the Affordable Connectivity Program. The 
Commission recognizes that in order to require the collection of 
subscriber-level information, the Commission will not only need to 
develop a process for the collection of consent from any new 
subscriber, but the Commission will also possibly need to develop 
consent processes for subscribers that have already enrolled in the 
program. With nearly 15 million subscribers already enrolled, it could 
be an immense undertaking to collect consents from those subscribers, 
and there is no guarantee that subscribers would respond to a request 
to provide consent so that the provider could submit price and plan 
information at the subscriber-level. The Commission thus finds that the 
burdens associated with subscriber consent also weigh against adopting 
a subscriber-level collection at this time.
    12. The Infrastructure Act does not address at what level of 
granularity the data should be collected, leaving it to the 
Commission's reasonable discretion to determine the most appropriate 
way of collecting the data required. The Commission recognizes the 
perception among many providers conveyed in the record that an 
aggregate-level collection is preferred and that an NLAD-based 
subscriber-level collection would be more burdensome as compared to an 
aggregate collection. The Commission must balance the need to meet 
statutory obligations to collect information about the internet 
services ACP households receive with the need to stand up an annual 
collection that minimizes burdens for providers and consumers. The 
Commission finds that the aggregate collection adopted herein strikes 
that balance by circumventing the need for an enrollment-based 
collection requiring subscriber consent.
    13. The aggregate collection, however, is not without 
administrative burdens. The Commission disagrees with providers that 
argue that an aggregate collection would minimize the need for system 
development, as the Commission or USAC will still need to develop a 
system through which to collect data, even if it is not done through 
NLAD. Moreover, the Commission acknowledges that there are some 
providers who argue that using NLAD for the ACP Transparency Data 
Collection would not be burdensome. As explained by NaLA, adding only 
the limited fields of price and unique plan identifier to NLAD for a 
subscriber-level collection ``would not be unnecessarily burdensome.'' 
In light of these comments, and consistent with the ACP Data Collection 
Notice and the record, the Commission seeks additional comments in the 
FNPRM published elsewhere in the Federal Register, on the value of a 
subscriber-level collection through the ACP Transparency Data 
Collection and the processes for obtaining subscriber consent.
    14. As discussed in more detail, for the annual aggregate data 
collection, providers will need to provide: (1) a unique identifier 
from the broadband label (or another unique identifier generated by the 
provider in the case that the provider is not required to file a 
broadband label for a plan, such as a bundled, grandfathered, or legacy 
plan) for each plan with an enrolled ACP subscriber; (2) total ACP 
households subscribed to each such plan; and (3) specified plan 
characteristics associated with each service plan--all aggregated by 
ZIP code. The Commission believes at this time that this approach best 
balances the burdens to collect and report this information with the 
need for a useful data collection.
    15. Unique Identifier and Broadband Labels. The Infrastructure Act 
requires the Commission to ``rely on the price information displayed on 
the broadband consumer label . . . for any collection of data . . . 
under section 60502(c).'' In the ACP Data Collection Notice, the 
Commission seeks comment on the interplay between the broadband labels 
and the ACP Transparency Data Collection, including how to interpret 
the Infrastructure Act's requirement that the Commission relies on the 
price information contained in the labels. The broadband labels include 
a service plan's name, speed, and a unique identifier associated with 
that plan, along with information relating to monthly price, additional 
fees (one-time and monthly), and plan characteristics (upload and 
download speeds, latency, and data caps). Commenters overwhelmingly 
agree that the Commission shall rely on the upcoming broadband labels 
to collect plan price and characteristic information in order to reduce 
the burden that this collection places on providers. The Commission 
finds here that leveraging broadband labels for purposes of the ACP 
Transparency Data Collection not only fulfills the statutory 
requirement, but also makes the ACP data collection more efficient and 
minimizes the burden on providers by allowing them to cross-reference 
the information displayed on a broadband label.
    16. To allow the Commission to best utilize the information 
contained in the broadband labels and to collect the data associated 
with each ACP-supported

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plan, providers are required to submit a unique identifier for each 
service plan to which an ACP household applies the affordable 
connectivity benefit. As the Commission recognizes in the Broadband 
Labels Order, FCC 22-86, November 17, 2022, the use of a unique 
identifier is a means of collecting plan data while minimizing the 
burden on providers. Providers must submit as part of the annual 
collection of plan information a unique identifier that matches the 
plan's corresponding broadband label, where a broadband label exists. 
Where a broadband label does not exist (e.g., grandfathered or legacy 
plans) or where a broadband label does not uniquely identify the plan 
to which an ACP household applies the benefit (e.g., bundled service 
plans), providers are also required to create and submit a unique 
identifier for any plan to which an ACP household subscribes. In such a 
case, the provider should use the same format as for plans that are 
covered by a broadband label. Consistent with the Broadband Labels 
Order, providers will not be permitted to reuse unique identifiers. The 
Commission directs the Wireline Competition Bureau (Bureau or WCB) with 
support from the Office of Economics and Analytics (OEA) to develop 
guidance concerning when a provider is required to formulate a new 
unique identifier.
    17. Price Information. The Commission requires providers to submit 
the same price information as required on the broadband labels. 
Providers will also, optionally, be able to submit the all-in price 
with and without the affordable connectivity benefit applied. In the 
ACP Data Collection Notice, the Commission seeks comments on the 
language in the Infrastructure Act that the Commission ``shall rely on 
the price information displayed on the broadband consumer label 
required under subsection (a) for any collection of data relating to 
the price and subscription rates of each covered broadband internet 
access service under section 60502(c).'' The Commission also proposes 
that price information collected would ``include the monthly charge for 
the internet service offering that a household would be charged absent 
the application of the affordable connectivity benefit,'' and sought 
comment on that approach, as well as whether promotion pricing, 
introductory rates, pre-paid or post-paid, taxes and fees, associated 
equipment, or other discounts should be included as part of price, and 
whether such information should be separately itemized and collected.
    18. The Broadband Labels Order requires providers to display the 
``base monthly price for the stand-alone broadband service offering,'' 
whether the monthly price is an introductory rate, itemized provider-
imposed recurring monthly fees (including fees for the rental or 
leasing of modem and other network connection equipment), and itemized 
one-time fees (such as a charge for purchasing a modem, gateway, or 
router, activation fees, deposits, and installation fees). Commenters 
agree that the price to be reported should reflect the amount that a 
household would pay absent the ACP discount, and the Commission finds 
that this price is reflected in the pricing requirements of the 
Broadband Labels Order. The Commission therefore finds that the price 
required to be submitted for this collection will reflect the same 
pricing elements as set forth in the Broadband Labels Order. Providers 
should use the same format for providing price information as they will 
for the broadband labels, and include: (1) the base monthly price for 
the broadband offering (in the case of bundled offerings, can be the 
total bundled price or separated out bundled price); (2) whether the 
monthly price is an introductory rate; (3) itemized provider-imposed 
recurring monthly fees (excluding government taxes or fees); and (4) 
itemized one-time fees.
    19. Commenters were split as to whether the individual components 
within the price should be itemized, with some supporting the itemized 
reporting, while others opposed their inclusion, including because 
discounts or promotional rates may skew the analysis of average rates, 
and taxes and fees vary widely, making reporting difficult. To provide 
more transparency into the prices that households pay, as well as to be 
consistent with the Broadband Labels Order, the Commission requires 
itemized reporting of provider-imposed monthly recurring fees and one-
time fees. The Broadband Labels Order requires that providers display 
whether ``the offered price is an introductory rate, and if so, the 
price the consumer will be required to pay following the introductory 
period.'' The Commission finds that requiring providers to submit the 
same pricing information about introductory rates and post-introductory 
rates for the ACP Transparency Data Collection will help minimize any 
confusion about comparing rates, allowing for a more detailed and 
accurate analysis of rates. The Broadband Labels Order also does not 
require providers to display the amount of any offered discounts (such 
as those for paperless billing, automatic payment (autopay), or any 
other discounts), or the amount of government taxes, and the Commission 
similarly does not require providers to submit such information as part 
of this data collection. While the Commission will not require 
providers to display discounts, will instead have optional fields for 
providers to voluntarily identify discounts.
    20. Broadband Equipment Fees. The Commission requires providers to 
submit information about recurring or one-time modem or router rental 
fees as part of this collection. The Commission concludes that it is 
appropriate to collect information about recurring or one-time modem or 
router rental fees, not only because of support in the record, but also 
because aligning the collection with the requirements of the Broadband 
Labels Order is likely to minimize the burdens on providers. Many 
commenters suggest that the Commission collects the prices of 
associated equipment, which may increase transparency about pricing and 
what households are getting as part of their monthly fee. NTCA, on the 
other hand, argues that including information such as the price of 
associated equipment is not necessary as part of this collection 
because the fact that associated equipment costs are assessed on top of 
the monthly cost for service ``is not something with which policymakers 
are unfamiliar.'' The Commission agrees with commenters that pricing 
information about associated equipment is useful in determining the 
value provided by the Affordable Connectivity Program. Moreover, 
because the affordable connectivity benefit can be applied to 
``associated equipment'' including modems, routers, hotspots, and 
antennas, information about the recurring costs for such equipment 
would help us understand the true price of ACP-supported services. To 
address NTCA's arguments, the Commission finds that to understand and 
assess the price of the ACP-supported service, the Commission needs to 
not only know the presence of charges for associated equipment, but the 
amounts charged. Furthermore, the Broadband Labels Order also requires 
providers to list monthly charges for the ``rental or leasing of modem 
and other network connection equipment'' as well as any one-time fees 
for the purchase of such associated equipment. The Commission finds 
that adhering to the itemized pricing requirements of specific 
recurring and one-time fees in the Broadband Labels Order is consistent

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with the Infrastructure Act, makes for an efficient collection, and 
will not be burdensome to providers. To fully understand the effect 
associated equipment may have on price, providers must also submit 
information on whether a plan requires associated equipment and whether 
any required associated equipment is included in the base monthly 
price.
    21. Bundled services pricing. The Commission also concludes that 
providers must submit information about the prices of bundled service 
offerings as part of this collection. The Commission finds that 
collecting price information for bundled plans supported by the ACP 
benefit is necessary to fulfill the statutory mandate to collect price 
information about ACP-supported plans, which includes bundled services. 
The Commission recognizes that the Broadband Labels Order gives 
providers the option to display pricing information for bundled plans, 
but as further discussed, the approach the Commission adopts for 
collecting bundle price information minimizes burdens by not requiring 
bundle component pricing to be reported separately while ensuring that 
the Commission collects the price information required. The Commission 
requires the base monthly price for a bundle to reflect the price for 
all services in the bundle and find that the prices for different 
services within the bundle do not need to be separated out. Some 
commenters urge the Commission to not ``require providers to identify 
separately the specific prices of discrete services within `bundled' 
service packages,'' while other commenters preferred breaking down the 
costs within bundles. The Commission agrees with those commenters 
asserting that providers should not be required to separately apportion 
out the price for broadband and non-broadband components for purposes 
of the ACP Transparency Data Collection. The Commission finds that the 
base monthly price for a bundle should reflect the price for all 
services in the bundle, and the Commission defines bundle as the 
combination of broadband internet access service with any non-broadband 
internet access service offerings, including but not limited to video, 
voice, and text. Given the complexity of apportioning out the price 
associated with the bundles that can be supported by the affordable 
connectivity benefit, the Commission finds that asking providers to 
report a single base monthly price for bundled plans minimizes the 
burden on providers and outweighs any benefit of requiring the provider 
to separately itemize different bundle pieces. While understanding 
pricing associated with the broadband portion of the bundle may help to 
understand the value as it relates to the data and speed also reported 
for that broadband service, the Commission recognizes that apportioning 
out the price of a broadband service and the voice component for this 
data collection may be unduly burdensome for providers. When reporting 
price information for a bundle, for example, if a bundle contains 
video, broadband, and telephone, and the base monthly price for that 
bundle is $70, then providers will need to report only $70 and not 
apportion out the broadband and non-broadband pieces. Providers must 
also adhere to the requirements for itemization of specific one-time 
and recurring fees proceeding, but providers will not be required to 
itemize prices for components that are not related to broadband service 
(e.g., monthly rental for DVR, set-top box, phone charges).
    22. The Commission declines to adopt Altice's proposal to permit 
providers to report pricing plan information as a series of ranges 
rather than providing precise information. Altice contends that 
allowing the submission of data in a range format rather than a more 
precise format will permit more transparency by allowing for an 
``apples-to apples'' comparison of plans, as there may be more 
comparison points if plans are grouped by range rather than specific 
characteristics. The Commission does not find that reporting of prices 
and speeds in this manner would provide useful and accurate data for 
purposes of determining the prices of ACP-supported services. For 
example, Altice suggests a provider could put their plan in the $70-
89.99 price range and further select a 50-100 Mbps speed range and 250-
350 GB data cap. However, under this approach, one subscriber could be 
paying $89.99 for 50 Mbps speed and a 250 GB data cap, and another 
subscriber could be paying $70 for a 100 Mbps speed and 350 GB data 
cap, and those two plans would be deemed similar for comparison 
purposes, despite one plan offering significantly better service for a 
significantly lower price. The use of ranges could thus mask important 
distinctions between service offerings, making it difficult for the 
Commission to analyze trends in the program with precision.
    23. Optional reporting of all-in price information. Considering the 
record, the Commission also finds that it would be effective to collect 
the all-in price--that is, the actual price that would be paid by the 
ACP household, absent the application of the affordable connectivity 
benefit. This price would include the price of any associated 
equipment, taxes, and fees as well as any non-ACP discounts or 
promotions offered to the customer. With respect to bundled service 
offerings, the all-in price should be the entire price of the bundled 
service, as this will allow us to get a view of the actual expenses 
paid by ACP households. The Commission finds that collecting the all-in 
price will help the Commission determine a household's actual broadband 
expenses, absent the ACP benefit. The Commission agrees with the City 
of Seattle that collecting all-in price will help the Commission 
determine progress towards reducing the digital divide as cost is ``one 
of the primary barriers to broadband adoption'' and collecting all-in 
price will better inform the Commission and local stakeholders about 
the pricing of ACP plans.
    24. Additionally, collecting the all-in price with the affordable 
connectivity benefit applied (net-rate charged) will help the 
Commission determine the efficacy of the Affordable Connectivity 
Program. In the ACP Data Collection Notice, the Commission seeks 
comments on whether there were ``any other indicators of price that 
should be collected.'' The Competitive Carriers Association (CCA), 
CTIA, NCTA--The Internet & Television Association (NCTA), and USTelecom 
(collectively, the Associations) suggest that the Commission optionally 
permits providers to submit the ``net-rate charged'' as part of this 
collection, which they define as the ``recurring monthly price charged 
to ACP households . . . for ACP-supported services after application of 
any state or federal low-income benefits or any applicable promotions 
or discounts.'' They argue that collecting the net-rate charged would 
allow the Commission to determine the average out-of-pocket costs for 
ACP households. The Commission finds that information concerning ACP 
subscribers' out-of-pocket expenses is valuable to the Commission and 
will assist in determining the efficacy of the ACP benefit in reducing 
the digital divide, and adopt the Associations' proposal in part. 
Additionally, providers can optionally submit as part of this 
collection, the total number of subscribers paying $0 and the average 
``all-in'' price for subscribers whose monthly bill is greater than $0, 
after all discounts and benefits, including the ACP benefit and 
Lifeline (where applicable), have been applied. By

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limiting the collection of net-rate charged to subscribers with out-of-
pocket expenses after the application of the affordable connectivity 
benefit, the Commission ensures that the Commission collects data that 
most accurately reflects the average out-of-pocket expenses paid by ACP 
subscribers.
    25. The Commission acknowledges comments suggesting that collecting 
``granular price information'' including all-in price would be 
burdensome and would present administrative or technical challenges. 
Given the mixed support for reporting such information, for purposes of 
this collection, providers will not be required to submit all-in price 
or the net-rate charged, and all-in price and net-rate charged will 
instead be optional fields that providers can choose to submit.
    26. Subscription Rate. In the ACP Data Collection Notice, the 
Commission sought comment on the meaning of ``subscription rate'' in 
the statute, and proposed collecting the number of ACP households that 
subscribe to each unique internet service offering. The Commission 
further sought comment on what period of time and geographic regions 
should be covered for the collection. Commenters propose that in an 
annual aggregate collection, the Commission would collect data from 
providers once per year on a chosen data submission date on the prices 
of broadband plans, and the number of ACP subscribers for each plan 
(indicating the subscription rates of each plan), grouped by state, 
with the data current as of a reference or ``snapshot'' date. 
Commenters support aggregating data at a state level as of a specific 
snapshot date, arguing that it would be less burdensome as providers 
already track enrollment by state. Some commenters note that under this 
approach, it would not be necessary to disaggregate the data by month 
or quarter. Some commenters suggest that data should be organized at 
the ZIP code and county level, as that may help identify areas in need 
of broadband assistance. USTelecom, NTCA, and the National Rural 
Electric Cooperative Association support aggregating data at the ZIP 
code level as an alternative to aggregating at the state level, as ZIP 
codes are generally in providers' systems, which would reduce the 
burdens of data gathering. WISPA recommends that data be collected ``on 
a census block level, which would be consistent with collection efforts 
for Form 477 and would avoid imposing new burdens on providers familiar 
with collecting such information on a census block level.'' Conversely, 
INCOMPAS argues that an aggregate collection should not be done at the 
census tract or census block, as it may ``unnecessarily burden 
competitive providers who do not have the size and resources that 
incumbents typically enjoy.''
    27. The Commission finds that the record supports aggregating the 
data at the ZIP code level where the subscriber resides as of a single 
snapshot date, and requires providers to submit subscription rate 
information consisting of the total number of ACP households that are 
subscribed to each service plan with an enrolled ACP subscriber. The 
Commission finds that aggregating at the ZIP code will minimize burdens 
on providers given that ZIP code information is typically in providers' 
billing systems, and will provide more informative data for the 
Commission than aggregating solely at the state level. The Commission 
will not require providers to submit aggregate data below the ZIP code 
level at this time. The Commission reminds providers that plans that do 
not require a unique identifier under the Broadband Labels Order, such 
as bundled or legacy plans, will still require a unique identifier for 
the purposes of this collection.
    28. Subscription Rate Subcategories for Lifeline, Tribal, and High-
Cost. In addition to collecting the total number of ACP households 
subscribed to each service plan with an enrolled ACP subscriber by ZIP 
code, the Commission requires providers to subdivide this data by 
submitting similar subscribership information for: (1) ACP households 
also enrolled in the Commission's Lifeline program; (2) ACP households 
that receive the ACP Tribal enhanced benefit; and (3) ACP households 
that receive the enhanced benefit for high-cost areas. The ACP Data 
Collection Notice not only proposed to collect total program 
subscribership data, but it also sought comment on collecting other 
subscription rate data, including data related to subscription trends. 
The ACP Data Collection Notice suggested using collected data to 
improve ACP outreach and analyze the connection between the Affordable 
Connectivity Program and the Lifeline program, and asked about 
collecting information relating to ACP performance and digital equity.
    29. The record on collecting data relating to Lifeline does not 
oppose collection of aggregate subscribership information relating to 
ACP subscribers also enrolled in Lifeline for a particular plan. ACA 
Connects opposes collecting subscriber-level data to analyze the 
Lifeline-ACP connection, but it suggests that the Commission could 
facilitate analyzing the connection between Lifeline and the Affordable 
Connectivity Program by requiring providers to submit data on the 
number of ACP subscribers that are also enrolled in Lifeline. NCTA 
asserts that USAC ``presumably already has'' data to analyze the 
connection between Lifeline and the Affordable Connectivity Program and 
contends that ``data gathered from providers would be redundant.'' But 
it makes this argument in the context of opposing a subscriber-level 
collection and acknowledges that the Commission can conduct a variety 
of analyses relating to ACP efficacy, consumer outreach, and the 
digital divide with ``aggregated data for each internet service 
offering at the state-level.'' The Commission believes that collecting 
aggregated data on the number of ACP subscribers to a plan that are 
also enrolled in Lifeline for that plan would allow the Commission to 
understand the plans and prices that the combined Lifeline and ACP 
benefits are applied to and help the Commission to assess whether the 
combined Lifeline and ACP benefits contributes to any significant 
difference in plan choices compared to the ACP benefit alone. The 
Commission thus requires providers to submit subscription rate 
information consisting of the number of ACP households that are 
subscribed to each service plan with an enrolled ACP subscriber who are 
also enrolled in Lifeline for that plan. As with total subscribership 
data, this data is to be aggregated by ZIP code.
    30. The Commission further requires providers to submit the number 
of ACP households receiving the Tribal enhanced benefit that are 
subscribed to each service plan with an enrolled ACP subscriber and the 
number of ACP households receiving the high-cost enhanced benefit that 
are subscribed to each service plan with an enrolled ACP subscriber, by 
ZIP code. Although the record does not discuss collecting these 
subcategories of subscribership data, several commenters support 
collecting data that would allow the Commission to understand the 
equity outcome and impacts of the Affordable Connectivity Program. 
Other commenters note that Tribal and rural areas often ``critically 
lack internet access comparable to the Commission urban counterparts.'' 
And NCTA states that aggregate data ``can help the Commission 
understand how ACP `affects overall broadband adoption and how the 
program furthers the Commission's efforts to close the digital divide' 
just as much as individual data would.'' Collecting data on the number 
of ACP subscribers enrolled in each plan who receive the ACP Tribal or

[[Page 2254]]

high-cost enhanced benefits, by ZIP code, would help the Commission 
understand which plans and prices these enhanced benefits are applied 
to. This in turn would help the Commission assess whether the enhanced 
benefit contributes to plans that are of higher, equal, or lower 
quality compared to the average ACP plan. The Commission directs the 
Bureau, in consultation with OEA, the Office of Managing Director, and 
USAC, as appropriate, to establish the electronic format for the 
submission of aggregated data related to price, subscription rate, and 
plan characteristics, as well as the process by which providers can 
submit this aggregated data within the filing window and deadlines 
established herein. In developing the format, the Bureau should 
consider allowing providers to rely on the information prepared for 
broadband labels to the greatest extent possible.
    31. Optional Pricing-related Subscription Rates. Furthermore, in 
addition to collecting the subscription rates of plans on which ACP 
subscribers are receiving Lifeline, ACP Tribal enhanced benefits, or 
ACP high-cost enhanced benefits, the Commission gives providers the 
option to submit by plan identifier and ZIP code the total number of 
subscribers that are on introductory pricing plans; the total number of 
subscribers that paid a set-up or activation fee; and the total number 
of subscribers that are paying $0 after all discounts and the ACP 
benefit are applied. In the ACP Data Collection Notice the Commission 
seeks comments on whether to collect other subscription rate data, 
whether there was information about subscribers that would be helpful 
to evaluate the performance of the Affordable Connectivity Program, and 
asked whether it would be valuable to collect information related to 
the growth rate.
    32. There is support in the record for the collection of 
information relating to introductory prices. As several provider 
associations point out, there is value in understanding the extent to 
which ACP households rely on promotions and discounts, which include 
introductory rates. While some commenters oppose collecting the 
introductory rates paid by subscribers, they do not raise any 
objections to the optional collection of the number of subscribers who 
are paying introductory rates. The Commission finds that collecting the 
number of subscribers by plan identifier and ZIP code that are paying 
introductory rates will assist in determining the growth rate of the 
program and in evaluating the performance of the program. Knowing the 
number of ACP subscribers who are currently paying introductory rates 
will assist the Commission in determining the growth rate of the 
program, as it will help to understand the number of subscribers who 
may be subject to upcoming price increases, and may be at risk of 
dropping out of the program. Additionally, understanding the number of 
subscribers who are paying introductory rates will give the Commission 
greater insight into the number of new subscribers that each provider 
has under the ACP. This information will assist the Commission in 
evaluating progress towards the ACP program goal of reducing the 
digital divide and understanding whether ACP subscribers are 
predominantly new subscribers to broadband internet or are using the 
ACP benefit to subsidize service they previously paid for. Consistent 
with the comments of the provider associations, and to avoid burden 
associated with this more granular subscribership data, at this time 
the Commission makes the submission of the number of subscribers who 
are paying introductory rates or who are on time-limited promotional 
pricing plans optional for ACP participating providers.
    33. Likewise, there is general support for the collection of 
information concerning set-up fees, and no objection to the collection 
of the number of subscribers who pay set-up fees. The Commission finds 
that collecting the total number of subscribers who paid a set-up fee 
by plan identifier and ZIP code will help the Commission understand the 
costs borne by subscribers to set up or activate service. Set-up fees, 
particularly in the context of fixed broadband service, can be a 
barrier to the adoption of broadband service. This information about 
the number of subscribers who are encountering set-up fees will help 
the Commission evaluate the efficacy of the ACP, and progress toward 
the program goal of reducing the digital divide. The Commission 
acknowledges comments that the mandatory collection of granular pricing 
and subscription rate data may impose a burden on providers, and 
therefore at this time will make the submission of the total number of 
subscribers who are paying set-up fees optional for ACP participating 
providers.
    34. Furthermore, the Commission collects the total number of 
subscribers who are paying $0 after the application of the ACP benefit, 
and any non-ACP discounts or promotions, by plan identifier and by ZIP 
code. There was general support in the record for collecting the actual 
price of ACP service plans, and for collecting the subscription rate 
for various service plans. The Commission finds that collecting the 
total numbers of subscribers in a given ZIP code, and on a given plan, 
that are paying $0 will help the Commission evaluate the performance of 
the ACP. Knowing the number of subscribers in a given ZIP code and on a 
given plan that are fully covered by the ACP benefit will help the 
Commission understand the value that ACP households are obtaining from 
the federal subsidy and the progress the Commission is making toward 
reducing the digital divide. To minimize the burden on providers, the 
Commission makes the collection of this information optional at this 
time. Therefore, at this time, submission of the number of subscribers 
for whom the net-rate charged is $0 aggregated by ZIP code and plan 
identifier will be optional for ACP participating providers.
    35. Plan Characteristics. In addition to collecting subscription 
rates for each plan by provider aggregated at the ZIP code level, the 
Commission also directs providers to submit service plan 
characteristics to fulfill requirements under the Infrastructure Act to 
collect ``data relating to price and subscription rate information.'' 
In the ACP Order, 87 FR 8346, February 14, 2022, the Commission 
recognizes that collecting service plan characteristics could help the 
Commission determine the value of the ACP to households and directed 
the staff to determine the appropriate plan characteristics for the 
collection. In the ACP Data Collection Notice, the Commission proposes 
using the ACP Transparency Data Collection to collect certain 
characteristics of ACP service plans. Collecting these data will help 
the Commission to understand the preferences of the ACP households, and 
to determine the value of the Affordable Connectivity Program, 
consistent with the Commission direction in the ACP Order. This part of 
the collection is also consistent with the requirement in the 
Infrastructure Act to collect ``data relating to price and subscription 
rate information.'' Specifically, in addition to the pricing 
information on the broadband label the Commission also requires 
providers to submit the additional plan information found on a 
broadband label. The Commission will also collect information not 
included on the broadband label; specifically, maximum advertised 
speeds, bundle characteristics, and associated equipment requirements 
for each plan with an enrolled ACP subscriber. Providers will be 
required to submit this

[[Page 2255]]

information for all plans with ACP subscribers; however, some of the 
fields on a broadband label may not be applicable to legacy plans and 
will be optional.
    36. The Commission disagrees with the commenters who suggest that 
the Commission is not authorized to collect service plan characteristic 
information as part of this collection because plan characteristics are 
``outside the scope'' of the Infrastructure Act. The Commission finds 
that plan characteristics are contemplated by the provision of the 
Infrastructure Act compelling the Commission to collect ``data relating 
to price and subscription rate information.'' The price of broadband 
service is determined in part by plan characteristics, including but 
not limited to upload and download speeds and data caps. In fact, the 
Commission has found a positive relationship between download speeds 
and price in the fixed broadband market, and between data caps and 
price in the pre-paid wireless market. Moreover, the collection of plan 
characteristic information, including associated equipment 
requirements, plan latency, and bundle characteristics, is necessary 
because such information will allow the Commission to contextualize 
service plan price information and determine the value being provided 
to eligible households by the ACP.
    37. T-Mobile and Altice contend that the Infrastructure Act's 
direction to rely on the information contained in the broadband labels 
prevents the Commission from collecting any price or plan 
characteristic information not contained in the labels, including data 
cap and bundle characteristic information. The Commission declines to 
adopt this interpretation. The relevant provision of the Infrastructure 
Act provides that the Commission ``shall rely on the price information 
displayed on the broadband consumer label under subsection (a) for any 
collection of data relating to the price and subscription rates of each 
covered broadband internet access service under section 60502(c) of the 
ACP Transparency Data Collection.'' The language of the statute notes 
that the Commission shall rely on the pricing information on the 
broadband label but does not state that the Commission is limited to 
the information displayed on the label. The Commission views this 
provision of the Infrastructure Act as working alongside the redundancy 
avoidance provision under section 60502(c)(3) of the (what rule) to 
avoid imposing duplicative collection requirements on providers, and as 
an instruction to utilize the price information in the labels where 
feasible.
    38. Speed. In the ACP Data Collection Notice, the Commission 
proposes collecting speed information as one metric of plan 
characteristics covered by the ACP Transparency Data Collection. As 
speed is one of the information fields contained on the upcoming 
broadband labels, the Commission requires providers to submit data 
related to the speed of the services to which ACP households subscribe, 
in line with the Infrastructure Act's direction to ``rely'' on the 
broadband labels. Such speed data will include the actual (i.e., 
typical) download and upload speed and typical latency data that 
providers will be required to include on the broadband labels, in 
addition to advertised speed.
    39. Commenters generally support the collection of service plan 
speed. Commenters recognize the importance of broadband speed, 
describing it as among the ``key characteristics'' utilized by 
consumers in distinguishing between plans, and suggesting that the 
collection of speed information could allow the Commission to get a 
``more accurate depiction of the service experience'' of ACP 
subscribers. Moreover, collecting speed information is crucial for the 
Commission to understand the value being provided by the affordable 
connectivity benefit, because the speed of a broadband service plan 
influences what internet applications a household can use.
    40. Some commenters suggest that collecting both the advertised and 
actual speed of ACP service plans will allow the Commission to compare 
the speeds and get an accurate view of the ``service experience'' of 
ACP subscribers. Joint commenters Public Knowledge and Common Sense and 
the City of Seattle argue that by collecting both advertised and actual 
speed, the Commission will be able to ensure that subscribers are 
obtaining value from their benefit and are able to use the federal 
subsidy to receive their intended service. The Commission acknowledges 
that some commenters argue that collecting speed information or 
requiring both advertised and actual speeds would be burdensome to 
providers, but finds that the benefits of collecting such information 
outweigh any burdens. The Commission finds that the requirement to 
submit the actual speed of a service plan is not overly burdensome, as 
providers will be required to produce this information as part of their 
broadband labels. Furthermore, providers should be accustomed to 
producing advertised speed information because providers are already 
required to submit advertised speed as part of the Form 477 collection 
and provide such information to potential subscribers on their public 
facing websites in the ordinary course of business. As noted, the 
collection of advertised speed is also consistent with the requirement 
in the Infrastructure Act to collect ``data relating to price and 
subscription rate information.'' Therefore, providers will be required 
to submit the actual and advertised speeds of ACP service plans as part 
of this collection.
    41. Consistent with the Broadband Data Collection definition of 
advertised speed, the Commission uses the maximum advertised upload and 
download speed for fixed providers, and the minimum advertised upload 
and download speeds for mobile providers. For actual speed, the 
Commission uses the definition adopted in the Broadband Labels Order: 
the typical upload and download speeds for a particular speed tier. For 
fixed broadband plans, the Commission directs providers to utilize the 
Measuring Broadband America (MBA) methodology or other relevant testing 
data. For mobile broadband plans, the Commission requires providers to 
submit the applicable technology type (e.g., 4G, 5G), and direct 
providers to use the methodology adopted in the Broadband Labels Order: 
reliable information on network performance that is the result of their 
own third-party testing.
    42. To ensure comprehensive data with respect to ACP-supported 
plans, the Commission requires providers to submit latency data 
consistent with the requirements in the Broadband Labels Order. 
Commenters argue that collecting latency data is overly burdensome and 
suggest that latency is not one of the ``key characteristics'' utilized 
by consumers in distinguishing between plans. The Commission finds that 
while there is merit to this argument with respect to grandfathered or 
legacy plans, which are neither marketed nor available to new 
consumers, the inclusion of latency on broadband labels warrants the 
inclusion of these data in the ACP Transparency Data Collection for 
currently marketed plans. The Commission clarifies that such 
information will not be required for legacy or grandfathered plans, 
although such information may be voluntarily submitted by providers.
    43. Data Caps and Connection Reliability. In the ACP Data 
Collection Notice, the Commission seeks comments on whether to collect 
information on data caps for ACP-supported services, including the 
amount of the data cap and the number of ACP households that reached 
the cap. The Commission agrees with

[[Page 2256]]

commenters that information concerning data caps is critical to 
allowing consumers and the Commission to determine the value provided 
by a service plan. For example, ACA Connects, in supporting the 
collection of data cap information, characterizes data caps as among 
the ``key characteristics'' that subscribers rely upon when choosing 
between service plans. The City of Seattle also characterized data caps 
as among ``the most important data to collect on service plan 
characteristics.'' WISPA argued that the Commission should not collect 
data cap information, given the burden such a collection would impose 
on small providers. Like service plan speed, data caps inherently limit 
the use of a subscriber's broadband connection. A low monthly data cap 
can prevent subscribers from using applications requiring high 
bandwidth, including, for example, video streaming and remote education 
applications. The Commission disagrees with WISPA that the collection 
of data cap information will be overly burdensome to small providers. 
Providers will already be required to display data cap information 
under the Broadband Labels Order and frequently provide prospective 
customers with such information at the point of sale and on their 
public facing websites. Accordingly, the Commission adopts the proposal 
to collect information on service plan data caps.
    44. There were no objections in the record to the Commission 
proposals to collect information on the number of subscribers who have 
reached their monthly data cap and the average amounts by which 
subscribers have exceeded their cap, and the Commission adopts those 
proposals herein. These are necessary pieces of information that will 
allow the Commission to contextualize the price information obtained 
through this collection and are also consistent with the requirement in 
the Infrastructure Act to collect ``data relating to price and 
subscription rate information.''
    45. In addition, the Commission finds that collecting information 
on the charges to subscribers to obtain additional data once the cap 
has been exceeded is necessary to obtain an accurate view of the month-
to-month cost ACP subscribers are paying. Accordingly, this additional 
information about the average overage amount for subscribers on an 
annual basis will allow the Commission to determine value that 
subscribers are obtaining from the affordable connectivity benefit, and 
whether the federal subsidy is covering data cap overage fees or is 
otherwise helping reduce the digital divide. The Commission therefore 
requires providers to submit for each plan with at least one 
subscriber, aggregated at the ZIP code level: the data cap (including 
de-prioritization and throttling), the number of subscribers who have 
exceeded the data cap in the previous month, the average amount by 
which subscribers have exceeded their cap in the previous month as part 
of the annual aggregate collection of plan characteristic information, 
and any charges for additional data usages along with the relevant 
increment (e.g., 1 GB, 500 MB). Providers will be required to report 
the number of subscribers exceeding the data cap, the average amount by 
which subscribers exceeded the cap, and the average overage amount paid 
for the month prior to the snapshot date.
    46. In the ACP Data Collection Notice, the Commission proposes to 
define data cap to include data usage restrictions on both pre-paid and 
post-paid plans, and adopts this proposal. In so doing, the Commission 
rejects NaLA's argument that the Commission instead shall define a data 
cap as the ``ultimate level of data usage above which the subscriber 
has no data service.'' Both throttling (soft caps) and the termination 
of service if a household exceeds the data allowance impact the ability 
of consumers to use the service as intended. Furthermore, providers in 
their advertising materials characterize throttling-based data caps as 
``data allowances'' or ``data usage plans.'' To evaluate the value of 
the affordable connectivity benefit for households, it is important to 
consider the view of subscribers, and there is support for the 
Commission finding that consumers view data termination, and throttling 
and de-prioritization, effectively as a cap on their usage, which 
impacts their use and enjoyment of the service. Accordingly, as part of 
the ACP Transparency Data Collection the Commission will collect from 
providers information on both data caps and data usage restrictions, 
such as de-prioritization and throttling, consistent with the 
definition provided in the ACP Data Collection Notice.
    47. At the same time, the Commission declines to require providers 
to submit connection reliability data. In the ACP Data Collection 
Notice, the Commission asks whether it should collect additional plan 
characteristics beyond those related to speed, bundles, and data caps. 
Some commenters propose that the Commission requires providers to 
submit information on connection reliability to ``help ensure that 
public money obtains the intended services.'' The Commission recognizes 
that determining and reporting these data for purposes of the ACP 
Transparency Data Collection could be unduly burdensome and could 
require providers to undergo a highly technical determination to be 
able to produce these data. Although the Commission finds that the 
reliability of a broadband service is a key characteristic in 
determining the value of the ACP-supported service and this metric 
would help to evaluate whether low-income consumers are receiving the 
reliable service they deserve through the Affordable Connectivity 
Program, requiring providers to collect and report reliability data 
through this collection would be an overly burdensome undertaking, 
particularly for small providers, and would be difficult to implement 
at the aggregate level.
    48. Bundle Characteristics. In the ACP Data Collection Notice, the 
Commission seeks comments on whether to collect information on the 
characteristics of bundled service offerings (e.g., ``triple-play'' 
bundles, unlimited voice/text/data plans), including information about 
the channels offered on bundled video services. A number of commenters 
supported the collection of bundle characteristics. Others opposed the 
collection of bundle characteristics, arguing that the Commission lacks 
the authority to collect bundle characteristics or that such a 
collection would be burdensome and without value to the Commission. As 
mentioned, the Commission interprets the Infrastructure Act to permit 
the Commission to collect plan characteristic information, including 
bundle characteristics. The fact that the Infrastructure Act refers to 
a ``broadband transparency'' collection is not determinative in our 
view, as the Infrastructure Act also directs the Commission to collect 
``data relating to price and subscription rate information.'' The 
Commission acknowledges comments describing the burdens on providers, 
but finds that identifying whether a service is bundled, and the type 
of services that are bundled together, is essential for providing 
context for the service plan information the Commission receives 
through the ACP Transparency Data Collection. Understanding that 
households are applying their affordable connectivity benefit to a plan 
that includes bundled voice and/or video service tells the Commission 
about the services offered by a provider and how ACP households are 
taking advantage of the benefit. The affordable connectivity benefit 
can be applied to the voice and text portions of a bundled service 
plan, and such information is therefore

[[Page 2257]]

essential to determining the value the affordable connectivity benefit 
provides enrolled households. Therefore, the Commission requires 
providers to identify whether a service is bundled and the type of the 
bundle (e.g., voice, video), and to submit voice or text characteristic 
information for bundled service offerings, including those services 
included with mobile broadband. Specifically, the Commission requires 
providers to submit as part of the annual collection of plan 
characteristic information the total number of voice minutes and the 
total number of text messages allotted on a monthly basis, or whether a 
voice or text offering includes unlimited minutes or text messages.
    49. Legacy Service Plans. In the ACP Data Collection Notice the 
Commission proposes collecting information, including price and plan 
characteristic information, from all ACP participating providers, which 
would include legacy service plans. Altice argues that ``grandfathered 
plans and other plans that are no longer offered, should not be 
considered `internet service offerings' for purposes of this data 
collection because they are not offered to `prospective ACP 
subscribers.' '' The Commission disagrees with this argument, as the 
Infrastructure Act is clear that the Commission must collect 
information related to the price and subscription rates of ``each 
internet service offering of a participating provider . . . to which an 
eligible household subscribes,'' and this language clearly does not 
exclude grandfathered or legacy plans. The Commission acknowledges 
however, that there are special circumstances surrounding legacy 
offerings that merit differential treatment, including lower numbers of 
subscribers, the fact that they are no longer currently marketed, and 
the burdens associated with collecting certain information. Therefore, 
the Commission will not require providers to submit information 
concerning typical speed or latency. The Commission will also not 
require providers to submit information on the introductory monthly 
charge, the length of the introductory period, if the monthly charge 
requires a contract, the number of months of a contract (if 
applicable), and the one-time fees required at purchase.
    50. The Commission will, however, require providers to create and 
submit unique plan identifiers for legacy service plans in a same or 
similar format as those used in the broadband labels. Lumen and 
USTelecom argue that the Commission shall not use the ACP Transparency 
Data collection to impose a requirement to produce broadband labels on 
grandfathered or legacy plans. The Commission clarifies that while 
providers will need to submit many of the plan and pricing 
characteristics contained in the labels, they will not be required to 
create or display a broadband label that the Broadband Labels Order 
would not otherwise require.
    51. Affordable Connectivity Program Performance Metrics. In the ACP 
Data Collection Notice the Commission proposes to use information in 
the ACP Transparency Data Collection for the evaluation of the 
performance of the ACP in achieving the goals set in the ACP Order and 
sought comment on the performance metrics the Commission shall collect 
to measure the performance of the ACP. The goals the Commission 
establishes for the ACP are to (1) reduce the digital divide for low-
income consumers; (2) promote awareness and participation in the ACP; 
and (3) ensure efficient and effective administration of the ACP. For 
each of these goals, the Commission establishes performance metrics and 
methods to measure progress.
    52. The information collected through the ACP Transparency Data 
Collection will help the Commission to evaluate the efficacy of the 
ACP, and to determine the value that ACP enrolled households are 
obtaining from their benefit. Data on the price and characteristics of 
plans with ACP enrolled households will help the Commission understand 
the value that ACP enrolled households are obtaining from the federal 
subsidy, including which plan characteristics are covered by the 
benefit, and whether the plans being subsidized are of adequate quality 
to engage in telework, telehealth, or remote education.
    53. Digital Divide Metrics. In the ACP Data Collection Notice, the 
Commission ask whether it shall, through the ACP Transparency Data 
Collection, collect information about whether a subscriber is a first-
time subscriber to the provider or a first-time subscriber for fixed or 
mobile broadband, or whether a household was subscribing to multiple 
broadband services. In the ACP Order, the Commission finds that 
understanding broadband adoption by first-time subscribers would help 
measure the Commission's progress toward its first goal of narrowing 
the digital divide for low-income consumers. Commenters opposed the 
collection of these metrics as part of the ACP Transparency Data 
Collection, arguing that providers do not collect this information as a 
matter of course, and that it would be a substantial burden to submit 
this information. The Commission still recognizes the utility of such 
information in permitting non-profit organizations, local and state 
governments, and the Commission to more effectively target ACP outreach 
efforts to underserved households and to fulfill the requirements to 
collect data necessary for determining the program's progress toward 
the goal of narrowing the digital divide. But the Commission also finds 
that the ACP Transparency Data Collection might not be the best vehicle 
for collecting information about first-time users as it could require 
providers to survey or otherwise assess and report on broadband 
services the household is receiving beyond those supported by the 
affordable connectivity benefit. Therefore, although the Commission 
declines to require the production of such information as part of the 
ACP Transparency Data Collection at this time, the Commission seeks 
further comment on how to collect digital divide data in the FNPRM. The 
Commission also, as discussed, requires providers to submit 
performance- and equity-related data on the number of ACP subscribers 
enrolled in Lifeline and ACP subscribers who receive the ACP Tribal or 
high-cost enhanced benefits. The Commission also reiterates its 
direction to Commission staff to consider other ways to collect 
information to determine progress toward the goal of narrowing the 
digital divide, such as broadband adoption rates for first-time 
subscribers, and increases in enrollments in areas with low broadband 
penetration rates. More specifically, the Commission directs the 
Bureau, with support from OEA, the Consumer and Governmental Affairs 
Bureau (CGB), and USAC, to explore possible approaches proposed by 
commenters, such as statistical sampling, or industry or consumer 
surveys, to collect information about the extent to which ACP 
subscribers are first-time broadband subscribers, first-time fixed 
broadband subscribers or are subscribing to multiple broadband 
services.
    54. Additional Performance Metrics. In the ACP Data Collection 
Notice, the Commission asks what other data should collect to measure 
effectiveness in increasing awareness and participation or the 
administrative efficacy of the ACP. Public Knowledge and Common Sense 
jointly suggest that the Commission collects information on the ACP 
enrollment process, connected device offerings, and availability of 
low-income plans. The City of New York and the Connecticut State 
Broadband Office propose that the Commission

[[Page 2258]]

collects information on the availability and performance of service 
plans. Providers object to proposals to collect information on 
providers' enrollment processes, connected device offerings, or plan 
availability and performance. With consideration of the weight of the 
record, and the administrative and technical difficulties associated 
with the collection of information related to awareness of and 
participation in the Affordable Connectivity Program and the efficient 
and effective administration of the program, the Commission declines at 
this time to require providers to submit information on the enrollment 
process, connected device offerings, plan availability or performance. 
However, the Commission recognizes the value of information concerning 
the ACP enrollment process, and seek further comment on collecting data 
on the enrollment process, connected device offerings, and the 
availability of low-income plans, and any burdens on providers or 
subscribers associated with collecting such information. The Commission 
also directs the Bureau, with support from OEA and USAC, to explore 
collecting information regarding ACP enrollment through surveys of ACP 
participating providers, subscribers, and other stakeholders. 
Additionally, USAC has recently addressed some of these requests 
through updates to the Companies Near Me tool. The updated tool now 
shows which providers offer devices and which providers have indicated 
to USAC they offer plans fully covered by the standard affordable 
connectivity benefit. Moreover, as described above, the Commission is 
collecting information on the number of ACP subscribers who pay $0 
after application of the discounts and the ACP benefit.
    55. Subscriber Privacy. In the ACP Data Collection Notice, the 
Commission requests that commenters identify any privacy concerns 
associated with subscriber- and aggregate-level collections of price, 
subscription rate, and plan characteristic information. Commenters 
focus on the privacy implications of a subscriber-level collection, 
with several commenters arguing that collecting aggregated data avoids 
privacy concerns that arise from collecting and processing information 
about individual subscribers. The Commission finds that the collection 
structure the Commission adopts in this Order, under which providers 
will submit aggregated data, reduces subscriber privacy concerns as 
compared to other collection options. Similarly, because the Commission 
is not collecting as part of the ACP Transparency Data Collection 
subscriber personally identifiable information (PII) or records or 
other information pertaining to a subscriber, this collection does not 
implicate privacy statutes such as the Privacy Act of 1974, ECPA, 
section 222 of the Communications Act of 1934, as amended, or the Cable 
Act.
    56. Additionally, privacy concerns associated with a subscriber-
level collection could potentially be mitigated by adhering to existing 
safeguards or crafting new ones. For instance, the Commission and USAC 
currently protect IT systems and resources, including databases 
containing PII, with robust technical and physical measures, following 
the standards and guidelines of the National Institute of Standards and 
Technology (NIST) framework. The Commission also protects PII disclosed 
to third parties through its use of Memorandums of Understanding and 
Information Sharing Agreements. Additionally, privacy concerns related 
to a subscriber-level data collection could be addressed by limiting 
the amount of subscriber-level data collected to a few relevant 
variables; modifying the applicable Systems of Records Notice (SORN), 
Privacy Act Statement, and NLAD Access Agreement; and requiring 
subscribers' consent to the collection of additional subscriber-level 
data as part of the ACP Transparency Data Collection. The Commission 
seeks additional comment on subscriber consent in the FNPRM.
    57. Timing of Collection, Inaugural Collection. Although the 
Infrastructure Act requires the Commission to issue final data 
collection rules by November 15, 2022, it does not specify when the 
inaugural or subsequent data collections should occur, leaving the 
matter largely one of agency discretion. For the inaugural collection, 
there must be adequate time for the agency to receive appropriate 
administrative review and build the collection system and for providers 
to review the collection requirements and rules, adapt their processes 
and systems to compile accurate data, and then to submit the data. The 
Commission therefore delegates to staff responsibility to set an annual 
date by which all ACP providers must submit required data as well as 
establish a reference or ``snapshot'' date for the data submitted by 
the providers.
    58. Data Submission Date. The record regarding the inaugural 
collection reflects a concern that providers, especially smaller 
providers, have adequate time to comply. ACA Connects suggests that an 
aggregate, annual collection could commence soon after the Commission 
receives OMB approval but also argues that collecting the data could 
``easily consume'' six months and that OMB approval could take six 
months or longer. It further asserts that the Commission should take 
``special care to ensure that smaller providers with more limited 
resources have ample time to implement the collection.'' The Commission 
shares the view that providers need adequate time to implement the 
collection, both to prevent undue provider burden and to ensure that 
the Commission receives quality data. The Commission therefore 
delegates to the Bureau the authority to establish a reasonable data 
submission date for the inaugural collection, which will be no earlier 
than ninety (90) days after the Commission announces that OMB has 
completed any review that the Bureau determines is required under the 
Paperwork Reduction Act. The Commission directs the Bureau to take into 
account other ACP deadlines or significant dates when setting the data 
submission date so as to minimize burdens on providers.
    59. The inaugural data submission date will likely occur before 
providers will be required to display broadband labels, and providers 
will be required to submit ACP Transparency Data Collection data to the 
Commission separately from the labels, despite the overlap between the 
information to be collected under the Order and that to be displayed on 
the labels. The Commission finds that it is appropriate to collect data 
before the initial publication of, and separately from the broadband 
labels because the Infrastructure Act includes language suggesting that 
Congress intended a rapid collection of data. Further, given the 
potential value of ACP Transparency Data Collection data to evaluating 
the utility of the Affordable Connectivity Program and progress toward 
reducing the digital divide, this data should be collected as soon as 
is feasible. Initiating the collection before the initial 
implementation of the broadband labels requirement may also allow the 
Commission to publish information that could be useful for participants 
in newly established ACP outreach efforts such as the Outreach Grant 
Program or Your Home, Your internet pilot program.
    60. Rule Revisions. A relatively rapid data collection is suggested 
by section 60502(c)(2) of the Infrastructure Act, which states that 
``[n]ot later than 180 days after the date on which rules are issued . 
. . the Commission shall revise the rules to verify the accuracy of the 
data submitted pursuant to the rules.'' The ACP Data Collection Notice 
sought

[[Page 2259]]

comment on how to interpret this provision, and the only commenters to 
address the issue contend that section 60502(c)(2) of the 
Infrastructure Act does not require the Commission to begin the data 
collection within 180 days of the issuance of final data collection 
rules. ACA Connects maintains that the Infrastructure Act does not 
indirectly specify a timeframe for the commencement of the inaugural 
collection by requiring the Commission to revise its rules within 180 
days. According to ACA Connects, the requirement that the Commission 
``revise its rules to verify the accuracy of the data submitted 
pursuant to the rules'' does not mean that the Commission must collect 
data prior to revising the rules: ``[i]nstead, the Commission can adopt 
measures that will improve its ability to `verify' the accuracy of data 
that is submitted in the future.'' ACA Connects also asserts that to 
read the Infrastructure Act otherwise would result in a futile exercise 
because it is ``simply unrealistic to believe the Commission could not 
only complete a data collection, but also complete a rulemaking to 
`verify the accuracy' of the data collected'' in 180 days.
    61. The Commission believes there may be merit in ACA Connects' 
interpretation of section 60502(c)(2) of the (what act), under which 
the statute would not require the Commission to collect data through 
the ACP Transparency Data Collection before revising its rules within 
the 180-day timeframe. The Commission thus seeks comment in the FNPRM 
on how the Commission can improve the rules set forth in the Order, 
including how to verify the accuracy of provider data. The Commission 
also delegates authority to the Bureau to issue a supplemental notice, 
if necessary, to enhance the record and to propose revised data 
collection rules in accordance with the 180-day timeframe.
    62. Data Reported as of Snapshot Date. In addition to directing the 
Bureau to establish an annual data submission date, the Commission 
delegates to the Bureau the authority to establish a reasonable annual 
snapshot date or reference date for the submission of certain data. The 
ACP Data Collection Notice sought comment on the ``filing window'' for 
the collection and asked whether the Commission shall ``require 
providers to submit data for subscribers enrolled as of a particular 
date.'' Commenters generally support submitting data based on, or 
current as of, a snapshot date. The Commission agrees that submitting 
data as of a snapshot date is appropriate, and requires providers to do 
so. The Commission directs the Bureau to establish a snapshot date that 
is no less than sixty (60) days prior to the data submission date. In 
other words, there must be at least sixty days between the snapshot 
date and the data submission date.
    63. Subsequent Collections. As for collections subsequent to the 
inaugural collection, there was little comment other than support for 
an annual collection based on a snapshot date. The Commission directs 
the Bureau to issue a Public Notice each year reminding providers of 
the snapshot date and data submission date. The snapshot date and data 
submission date should account for other ACP deadlines or significant 
dates to minimize burdens on the Commission, USAC, and providers.
    64. ACP Wind-Down Considerations. In the ACP Order, the Commission 
delegates authority to the staff to establish procedures for the wind-
down of the Affordable Connectivity Program. In addition to the 
delegations and directions in the ACP Order, the Commission directs 
Commission staff to account for the ACP Transparency Data Collection in 
the wind-down procedures. Staff may, if appropriate, revise collection 
procedures or waive rules to avoid collection activities that may be 
unnecessary or lack utility due to the forecasted end of the Affordable 
Connectivity Program.
    65. Publication of Data. The Infrastructure Act not only requires 
the Commission to collect data relating to price and subscription rates 
but also directs the Commission to ``make data relating to broadband 
internet access service collected . . . available to the public in a 
commonly used electronic format without risking the disclosure of 
personally identifiable information or proprietary information.'' The 
ACP Data Collection Notice sought comment on what data should be made 
public, how privacy and provider interests can be protected, and the 
format, method, and timing of publication. Based on the record, at a 
minimum, the Commission makes publicly available, aggregated at the 
state level, non-provider-specific data on the average or median prices 
of plans in which ACP subscribers are enrolled within designated 
download speed tiers and data on the number of subscribers of plans 
within those tiers. The Commission directs OEA and USAC to make these 
data available in a downloadable format (e.g., Comma Separated Values 
file) not more than six months after the submission date set forth by 
the Bureau in a Public Notice. Making data available in this fashion 
will provide greater transparency into broadband services provided by 
ACP participating providers while protecting personally identifiable 
information and proprietary information. As further discussed, the 
Commission also finds that it would be valuable to publish data at the 
ZIP code level after the initial publication of state-level 
information, provided that it is done in a manner that protects 
subscriber information and does not result in the publication, directly 
or indirectly, of provider-specific information.
    66. Publishing Data While Protecting Against the Disclosure of 
Personally Identifiable Information or Proprietary Information, 
Defining Personally Identifiable Information (PII). The Infrastructure 
Act requires the Commission to make data available to the public 
``without risking the disclosure of personally information or 
proprietary information'' and further directs the Commission to define 
``personally identifiable information'' (PII) via notice and comment 
rulemaking. Accordingly, the Commission seeks comments on how it shall 
define the term, and adopt here the definition of PII used by OMB in, 
among other authorities, OMB Circular A-130 and OMB M-17-12: 
``information that can be used to distinguish or trace an individual's 
identity, either alone or when combined with other information that is 
linked or linkable to a specific individual.'' The Commission finds 
that this definition is consistent with the approaches suggested in the 
record. Further, although the ACP Transparency Data Collection does not 
currently contemplate the collection of subscriber-level data, the 
Commission finds that this definition is flexible enough to ensure the 
protection of subscriber privacy if a subscriber-level component is 
made part of the collection in the future.
    67. Three commenters propose definitions of ``personally 
identifiable information'' for purposes of the ACP Transparency Data 
Collection. The Connecticut State Broadband Office recommends the 
Commission uses the definition of ``personally identifiable 
information'' that the Commission adopted in 2016, supplemented by U.S. 
Department of Labor restrictions on the publication of a consumer's 
telephone number, race, and birth date. In 2016, the Commission defined 
``personally identifiable information'' as ``any information that is 
linked or reasonably linkable to an individual or device'' and further 
stated that ``information is linked or reasonably linkable to an 
individual or device if it can reasonably be used on its own, in 
context, or in combination to identify an individual or device, or to 
logically associate with

[[Page 2260]]

other information about a specific individual or device.'' The 
Department of Labor guidance further specifies that gender, race, birth 
date, and geographic indicator are data elements that could be used to 
indirectly identify a person. The Connecticut State Broadband Office 
asserts that this definition allows the Commission to refine or include 
additional data elements as technology advances and more personal 
information is available online.
    68. The City of New York suggests considering the definition of 
``identifying information'' in the New York City Administrative Code: 
``any information obtained by or on behalf of the city that may be used 
on its own or with other information to identify or locate an 
individual.'' Similarly, Common Sense advocates adopting a definition 
of ``personally identifiable information'' that is consistent with the 
definition of ``personal information'' used in the California Consumer 
Privacy Act. The Act defines ``personal information'' as ``information 
that identifies, relates to, or describes, is reasonably capable of 
being associated with, or could reasonably be linked, directly or 
indirectly, with a particular consumer or household.''
    69. These definitions are all consistent with OMB's definition of 
``personally identifiable information,'' which the Commission cites in 
the ACP Data Collection Notice and which the Commission adopts here to 
comply with the Infrastructure Act. Moreover, this definition is broad 
enough to promote subscriber trust that the Commission will not publish 
information that could identify a specific subscriber.
    70. Protecting PII in Published Reports. The Infrastructure Act not 
only requires the Commission to define PII but also directs to publish 
data collected without risking the disclosure of PII. The ACP Data 
Collection Notice sought comment on ``how the Commission shall minimize 
the risk that such information would be disclosed when making data 
available to the public'' and proposed protecting PII by publishing 
only aggregate-level data. The record strongly supports this proposal, 
and the Commission adopts it. Moreover, publishing aggregate-level 
data--regardless of whether the Commission collects aggregate-level 
data, subscriber-level data, or a hybrid of the two--aligns with other 
methods of protecting PII suggested in the record. The Connecticut 
State Broadband Office, for instance, recommends not disclosing 
sensitive subscriber information such as a subscriber's social security 
number, household income, and participation in a government income 
subsidy program. Publishing only aggregated data is consistent with 
that recommendation.
    71. Interpreting Proprietary Information. In addition to directing 
the Commission to protect PII when publishing data, Congress directed 
the Commission not to risk the disclosure of proprietary information 
when making data available to the public. Because the Infrastructure 
Act does not define ``proprietary information,'' the Commission seeks 
comments on how to interpret the term. Consistent with Commission 
practice and as further stated, the Commission directs Commission 
staff, when making information available to the public, to make sure to 
guard potentially proprietary and competitive information by not 
disclosing information that could directly or indirectly identify a 
specific provider.
    72. As an initial matter, the record supports interpreting 
``proprietary information'' in the section 60502(c)(4) context to mean 
the proprietary information of providers, rather than the broad 
universe of information protected by section 222(a) of the Act or 
customer proprietary network information protected by section 222(c). 
As for what ``proprietary information'' means in the context of the ACP 
Transparency Data Collection, providers and those affiliated with them 
tend to take a broad view. ACA Connects asserts that because the 
Commission must avoid even ``risking'' the disclosure of proprietary 
information, the Commission must err on the side of non-disclosure of 
any information that might be deemed proprietary. According to ACA 
Connects, the Commission should thus refrain from disclosing ``any 
provider-specific data, including any data that can be linked to an 
individual provider.'' More specifically, several commenters assert 
that proprietary information covers competitively sensitive provider 
information, which includes pricing data, subscription rates for 
broadband service offerings, and ``the churn rate for the provider or 
for a particular internet service plan offered by an ACP provider.'' 
If, as ACA Connects contends, the Commission discloses publicly this 
competitively sensitive data--e.g., each provider's total number of ACP 
subscribers in each area or each provider's number of ACP subscribers 
enrolled at different speed tiers--it could chill providers from 
participating in the Affordable Connectivity Program. ACA Connects also 
asserts that publishing provider-specific information is not necessary 
to deliver the transparency the Infrastructure Act requires.
    73. Other commenters recommend a narrower interpretation of 
proprietary information, albeit advocating a relatively broad general 
definition. As for the latter, the Connecticut State Broadband Office 
asserts that the Commission looks to the U.S. National Institute of 
Standards and Technology's (NIST) definition of proprietary information 
as well as section 0.457 of the Commission's rules. NIST defines 
``proprietary information'' as

    Material and information relating to or associated with a 
company's products, business, or activities, including but not 
limited to financial information; data or statements; trade secrets; 
product research and development; existing and future product 
designs and performance specifications; marketing plans or 
techniques; schematics; client lists; computer programs; processes; 
and know-how that has been clearly identified and properly marked by 
the company as proprietary information, trade secrets, or company 
confidential information. The information must have been developed 
by the company and not be available to the Government or to the 
public without restriction from another source.

    As for section 0.457 of the Commission's rules, it makes certain 
materials presumptively nonpublic and provides that a person may 
request non-disclosure of ``materials contain[ing] trade secrets or 
privileged or confidential commercial, financial or technical data'' 
under section 0.459 of the Commission's rules if the materials are not 
presumptively nonpublic. Although citing those general definitions, the 
Connecticut State Broadband office asserts that the Commission shall 
only withhold confidential information from public view if disclosing 
the information would impair its ability to obtain necessary 
information in the future or if disclosing it would cause substantial 
harm to the competitive position of the submitter of the information.
    74. The Connecticut State Broadband Office further generally 
advocates that the Commission makes ``provider data publicly 
available'' and asserts that ``ACP elements such as price of plans, 
plan descriptions, and device offers would not substantially harm the 
government's ability to obtain future information or cause substantial 
harm to a provider's competitive position.'' According to the 
commenter, ``it is only right that the enormous subsidies provided to 
ISPs through the affordable connectivity program be published and 
analyzed.'' Similarly, the City of Seattle argues that all pricing 
data, subscription rates, and service plan data should be publicly 
released on a provider-specific basis.

[[Page 2261]]

    75. Unlike in the case of PII, the Infrastructure Act does not 
require the Commission to define ``proprietary information'' for 
purposes of the ACP Transparency Data Collection, and the Commission 
declines to do so because it is not necessary to issue a general 
definition to ensure that provider interests are protected. The 
Commission is also disinclined to find that all provider-specific data 
about broadband prices and plan characteristics are necessarily 
proprietary. For example, USTelecom in its comments has not established 
that the price of a plan is proprietary, and the broadband labels will 
include data on plan characteristics, including price.
    76. Protecting Proprietary Information in Published Reports. 
Consistent with Congress's directive to avoid risking the disclosure of 
provider information, and consistent with past Commission practice, the 
Commission protects provider proprietary and competitively sensitive 
information by ensuring that any data published cannot be associated 
directly or indirectly with a specific provider. To effectuate this 
principle, the Commission directs Commission staff to: (a) publish data 
aggregated at the state level and only publish data at lower levels of 
geographic aggregation if doing so sufficiently protects provider 
identity; (b) publish average or median prices; and (c) publish such 
data by speed tiers. The Commission is persuaded, however, that the 
Infrastructure Act militates against the publication of plan-related 
subscribership data that could be linked to a particular provider, and 
the Commission clarifies that it does not intend to release as part of 
the ACP Transparency Data Collection provider-specific data, consistent 
with its practice not to publish broadband-related data specific to 
providers in the internet Access Services Reports. ACA Connects, NCTA, 
and USTelecom state without rebuttal that the number of ACP subscribers 
that subscribe to a particular plan is competitively sensitive. 
Although the Commission declines to find that a provider's subscriber 
numbers are proprietary information in this context, the Commission has 
protected similar competitively sensitive provider information in other 
contexts.
    77. As with protecting PII, one way to protect provider proprietary 
information is to publish aggregated data, and doing so is supported by 
the record. ACA Connects further suggests protecting proprietary 
provider information by ``disclos[ing] averages or median prices for 
all ACP-subsidized services within various speed ranges, rather than 
provider-by-provider disclosure'' because ``[e]ven anonymized provider-
level disclosures (e.g., `Provider A' v. `Provider B') may be traceable 
to a specific provider based on their offering of unique speeds or 
pricing plans and should thus be avoided.'' WISPA suggests a similar 
approach, albeit for the collection of data rather than its 
publication, and recommends ``allow[ing] participating providers to 
report subscription rates by tier with price ranges for each of the 
provider's geographic locations.'' The Commission finds merit in ACA 
Connects' proposal, under which it publishes average or median prices 
for all plans based on download speed tiers rather than by provider. 
This would sufficiently protect provider information while providing 
meaningful data to the public, and the Commission directs OEA, in 
coordination with WCB and USAC, to publish non-provider-specific 
aggregated average or median price data by download speed tier.
    78. Geographical Aggregation Level. Although commenters 
overwhelmingly support publishing aggregated data to protect PII and 
proprietary information, there were marked disagreements about what 
level of aggregation was appropriate. Several commenters, all provider-
affiliated, argue that aggregated data should be published at the state 
level because publishing more granular data risks disclosing PII or 
proprietary information ``by making it possible to link `price' and 
`subscription rate' data to a specific provider'' or because ACP 
participating providers currently provide data to USAC and the 
Commission at the State or Study Area Code level. Other commenters 
advocate for publication at the ZIP code or county level because it is 
more useful to the public and it is how aggregated ACP data are 
currently made available by USAC. As explained by the Connecticut State 
Broadband Office, providing ZIP code level data to the public ``makes 
it easier for state governments and providers to identify the areas in 
need of broadband assistance.'' And some commenters recommend that ACP 
Transparency Data Collection data be published at a smaller-than-ZIP-
code level, such as by Census tract, neighborhood, or individual 
blocks.
    79. The Commission finds that publication of aggregated data at the 
state level is supported by the record and will protect both subscriber 
and provider information. The Commission thus directs OEA, in 
coordination with WCB and USAC, to make aggregated data available to 
the public at the state level. Further, because the public may find 
more granular data more useful, and because providers will be required 
to submit data aggregated by ZIP code, the Commission directs OEA, in 
consultation with WCB, OGC, and USAC to publish data by ZIP code, but 
only if doing so will not directly or indirectly disclose subscriber 
PII or result in the publication of provider-specific data. The 
Commission notes that publication of data at more granular levels than 
ZIP code could be an option were the Commission collects ACP data at 
lower levels of aggregation or on a subscriber basis in the future. But 
regardless of the level at which data is collected, any publication of 
data must not be specific to any provider even if that requires 
aggregation of data at levels higher than that at which it is 
collected.
    80. 47 CFR 0.459. The Infrastructure Act states that Commission 
protection of PII and proprietary information must be consistent with 
section 0.459 of the Commission's rules. Section 0.459 provides 
procedures for requesting that information submitted to the Commission 
be withheld from public inspection. For instance, if a person submits 
materials to the Commission but wants the materials withheld from 
public inspection on the grounds that they contain trade secrets or 
privileged or confidential commercial, financial, or technical data, 
and the materials do not fall within the list of presumptively 
nonpublic materials in section 0.457(d)(1) of the Commission's rules, 
the person must submit a request for non-disclosure under section 
0.459. Unless the Commission provides abbreviated means for requesting 
confidential treatment, a request under section 0.459(a) must contain a 
statement of the reasons for withholding the materials from public 
inspection, including an ``explanation of the degree to which the 
information is commercial or financial or contains a trade secret or is 
privileged'' and an ``explanation of how disclosure of the information 
could result in substantial competitive harm.'' The Commission seeks 
comments on how section 0.459 could be incorporated into its processes 
for publishing information collected through the ACP Transparency Data 
Collection.
    81. The Connecticut State Broadband Office and NaLA assert that the 
Commission shall follow its normal procedures--provider information is 
either presumptively withheld because it falls within a category of 
section 0.457 or the provider must request non-disclosure under section 
0.459. In contrast, ACA Connects argues that the Commission shall not 
require providers to submit individual requests under

[[Page 2262]]

section 0.459 but should instead, in the interest of expediency, add 
``any proprietary information received via the ACP Transparency Data 
Collection'' to the list of materials presumptively withheld from 
routine public disclosure in section 0.457. Additionally, a few 
commenters propose that if section 0.459 submissions are required, 
providers should be able to request non-disclosure by checking a box 
when submitting data.
    82. The Commission agrees with commenters that competitively 
sensitive information might be proprietary and that providers might 
want to keep such information confidential. Because the Commission is 
already refraining from making publicly available any data at the 
provider level by publishing only aggregated, non-provider-specific 
data, the Commission does not find it necessary for providers to seek 
protection of competitively sensitive or proprietary information the 
Commission has already committed to not make publicly available. The 
Commission will therefore treat such information as presumptively 
confidential pursuant to section 0.457(d) of the Commission's rules.
    83. Scope of Data to be Made Public. As for what aggregated, non-
provider-specific data the Commission shall make available to the 
public, its direct OEA, in coordination with WCB, OGC, and USAC to 
publish as much data as possible consistent with privacy 
considerations. At a minimum, OEA and USAC must publish aggregated non-
provider-specific data on average or median prices of plans within 
download speed tiers and data on the total number of ACP subscribers 
within those tiers, on a state level basis. The Commission further 
direct OEA, in coordination with WCB, OGC, to the extent necessary to 
protect PII, and USAC, to publish data on legacy plans--plans which 
have ACP subscribers but are no longer available to the general 
public--while minimizing the risk of consumer confusion about the 
availability of those plans. While it is appropriate to publish data on 
legacy plans because ACP subscribers are enrolled in them, doing so 
might require a separate dataset or different variables given that 
legacy plans are not available to new subscribers.
    84. The Commission seeks comments on whether the Commission shall 
publish only price and subscription rate data, or whether the 
Commission shall also make publicly available other data proposed to be 
collected, such as plan characteristics or program-performance data, or 
data obtained outside the ACP Transparency Data Collection, such as 
data about the availability of plans fully covered by the affordable 
connectivity benefit. State and local government commenters urge the 
Commission to publish all data collected, except for PII. The 
Connecticut State Broadband Office urges the Commission to publish 
descriptions of all ACP plans, including whether a device is offered, 
and data on the performance of those plans. It asserts that these 
``additional variables'' help state and local governments understand 
``affordability issues in their jurisdiction'' and ``promote 
transparency in the services ISPs are providing with the benefit of 
government subsidies and their prices for comparison with unsubsidized 
services.'' Similarly, the City of New York urges the Commission to 
collect and publish price, plan, and performance features and 
``anticipates that the publication of ACP transparency data will 
meaningfully enable the City to further inform emerging broadband maps 
used for policy, service deployments, and adoption investments.''
    85. Other commenters agree that all collected data should be 
published, though they differ somewhat on what should be collected in 
the first place. Common Sense, for instance, asserts that the 
Commission shall publish all ACP data collected, which would include 
information on ``plan prices, subscription rates, plan characteristics, 
and performance metrics.'' NaLA likewise advocates publishing all 
collected and analyzed data, but contends that the Commission shall 
limit the data collection to price and subscription rate data. 
Nevertheless, NaLA states that ``[i]f the Commission decides to collect 
data beyond the price and subscription rate data required by the 
Infrastructure Act,'' it should make such data and related analyses 
available to the public.
    86. As set forth, the Commission will be collecting data on the 
prices of plans in which ACP subscribers are enrolled, subscription 
rates of such plans, and characteristics of those plans. The Commission 
recognizes that these data not only are valuable for the Commission but 
could be of significant value to state and local governments, consumer 
groups, and other stakeholders even when aggregated and disassociated 
from specific providers to protect PII and competitively sensitive or 
proprietary information. The Commission will therefore publish as much 
data as possible, consistent with privacy considerations. Consequently, 
the Commission directs OEA, in coordination with WCB, OGC, and USAC to 
publish as much data as possible consistent with privacy 
considerations.
    87. How Data Will Be Made Publicly Available, Format and Method of 
Publication. The Infrastructure Act requires the Commission to make 
data available to the public in a ``commonly used electronic format'' 
but does not define the term. In light of the record and current 
Commission practice, the Commission directs OEA and USAC to make data 
available to the public in a downloadable format, such as a Comma 
Separated Values file, on the Commission's or USAC's website. As noted 
in the ACP Data Collection Notice, the Commission already make datasets 
available for viewing in Open Data portals and provide downloadable 
data in several formats, and commenters generally support ``easy to 
use'' and ``standardized'' formats. As for the method of publication, 
the only commenter on this topic suggested that the Commission host the 
public data, and the Commission directs that this information be made 
available on the Commission's or USAC's website.
    88. Timing of Publication. As for when the Commission makes data 
publicly available, the ACP Data Collection Notice noted that the only 
direction in the Infrastructure Act is that the Commission must define 
the term ``personally identifiable information'' through notice and 
comment rulemaking before making any data available to the public. The 
Commission proposes making data public at least annually and asked 
several timing related questions, such as whether data should be 
published on an annual basis or more frequently and how long after 
collection should the Commission publish data.
    89. The record is sparse on these issues. WISPA recommends 
publishing information ``on an annual basis during a specified window 
of time each year to ensure (1) consistency for comparison purposes, 
(2) sufficiently current information, and (3) a process that is not 
overly burdensome for providers, the Commission, or USAC.'' In 
contrast, Common Sense asserts that the Commission ``shall publish 
updated ACP data at regular intervals, as frequently as feasibly 
possible.'' NaLA does not suggest a particular timeframe in which to 
make data publicly available but emphasizes the importance of data 
being disclosed ``in a timely manner so that it is useful for 
determining the effectiveness of the ACP in meeting its goals as well 
as for enabling low-income consumers to gain insight into the ACP 
services available to them.''

[[Page 2263]]

    90. The Commission finds that making data publicly available on an 
annual basis aligns with the structure of the data collection, is 
sufficient to provide greater transparency into broadband services 
provided by ACP participating providers, and minimizes the burdens of 
publication on providers and the Commission. Under the collection 
structure the Commission adopts here, data will be collected annually 
based on a snapshot date. Making data available publicly annually is 
consistent with that structure. The Commission further finds that data 
should be published no later than six months after the data submission 
date to give WCB, OEA, OGC, and USAC sufficient time to prepare the 
data for publication, including ensuring that no PII or competitively 
sensitive or proprietary information will be exposed.
    91. Guidance. The Infrastructure Act provides that the Commission 
``may issue such guidance, forms, instructions, publications, or 
technical assistance as may be necessary or appropriate to carry out 
the programs, projects, or activities authorized under this section, 
including to ensure that such programs, projects, or activities are 
completed in a timely and effective manner,'' and the ACP Data 
Collection Notice sought comment on this provision. Commenters agreed 
that the Commission should provide support and guidance on data 
collection through webinars, technical instructions, form instructions, 
and frequently asked questions. The Commission therefore directs the 
Bureau, OEA, and USAC to develop provider education and training 
materials to assist with the ACP Transparency Data Collection rules set 
forth in this Order and associated processes.
    92. Enforcement. In the ACP Data Collection Notice, the Commission 
seeks comments on issues relating to the enforcement of the annual data 
collection rules, including the base forfeiture amount for 
noncompliance, certification requirements, involuntary removal, and 
submission deadlines.
    93. Base Forfeiture. In the Notice the Commission proposes to 
establish a base forfeiture amount proportionate to the level of data 
ultimately adopted in the proceeding, either on a per-subscriber or on 
a higher level of aggregation (e.g., ZIP-code, state, SAC). For an 
aggregate collection, the Commission proposes to establish a base 
forfeiture amount of $50,000 per state or study area for which a 
provider has failed to submit ACP Transparency Data Collection 
information by the applicable deadline.
    94. Commenters generally support establishing forfeiture amounts, 
but some commenters suggest that the Commission adopts a base 
forfeiture amount proportionate to the number of a providers' ACP 
subscribers, to avoid chilling small provider participation in the 
program. Starry argues that ``disproportionate penalties'' might deter 
provider participation in the Affordable Connectivity Program. Altice 
suggests that instead of applying additional penalties for missing 
submissions dated from the submission deadline, that the Commission 
instead permit a 30-day grace period for providers to come into 
compliance with the ACP Transparency Data Collection rules. Altice 
further suggests that the Commission adopts as the base forfeiture 
amount the $100 per month penalty imposed on providers associated with 
the failure to file form 499-A, arguing that there is ``little 
justification for adopting a fine or forfeiture amount for ACP 
transparency data reporting that is higher than the $100 per month fine 
for failing to file a Form 499-A.'' Lastly, Altice suggests that 
instead of instituting a forfeiture amount, the Commission could 
publish a list of non-compliant providers, and publishing the list 
would incentive providers to come into compliance to avoid public 
embarrassment and reputational damages.
    95. With consideration of the record and in light of the Commission 
decision to utilize an aggregate-level approach in this collection, the 
Commission adopts a base forfeiture amount in line with an aggregate 
collection. The Commission adopts a base forfeiture amount of the 
lesser of $22,000 or the latest monthly claim amount, for each state 
for which a provider has failed to submit complete information. The 
Commission agrees with WISPA's comment that a base forfeiture amount 
can be tied to the number of the provider's ACP subscribers to account 
for differences in provider size, and using the latest monthly claim 
amount makes that tie to subscribers. The Commission adopted approach 
is consistent with both Commission precedent and its desire to ensure 
compliance with the ACP Transparency Data Collection rules. Moreover, 
it appears that Altice is confusing late fees that USAC applies to USF 
accounts for late FCC Form 499 filings ($100), with forfeitures the 
Commission issues in enforcement proceedings for late, missing, or 
inaccurate FCC Form 499 filings ($50,000). In this proceeding, the 
Commission seeks comment on forfeitures for rule violations, not late 
fees assessed by USAC pursuant to Commission rule. The Commission 
similarly declines to adopt Altice's alternative proposal of a 
publicized list of non-compliant providers as the means of enforcement, 
as the Commission finds the preceding approach better balances the 
incentive to comply with concerns of providers. A ``naughty list'' 
would likely not adequately penalize or deter providers from failing to 
submit the annual plan characteristics information required by this 
Order and the Infrastructure Act.
    96. Filing Deadlines. In the ACP Data Collection Notice, the 
Commission proposes that providers be required to submit ACP 
Transparency Data Collection information by a deadline, and that USAC 
provide the Enforcement Bureau with a list of providers who have failed 
to submit the required information by the deadline, identifying the 
subscribers, state and study area, for which the data has not been 
properly filed. The Commission receives no comments concerning the 
establishment of a deadline and the sharing of information between USAC 
and the Enforcement Bureau, and the Commission adopts both proposals. 
The Commission also asks whether it should impose additional fines each 
day in addition to the base forfeiture amount that a provider is not in 
compliance with the ACP Transparency Data Collection rules under 
section 503(b)(2) of the Act. The Commission did not receive any 
comments concerning additional daily fines, and declines to adopt any.
    97. Certification. The Commission receives no comments opposing its 
proposal to require an officer of each provider to certify, under 
penalty of perjury, to the accuracy of the data and information 
provided prior to the submission of each data collection. Consistent 
with the Commission rule requiring annual certification for 
participating providers to be completed by the ``officer of the 
participating provider who oversees Affordable Connectivity Program 
business activities,'' the Commission adopts this proposal. The 
Commission directs the Bureau, as part of the electronic process to 
submit data, to include a process for certifications as to the accuracy 
of the data and information provided for the data.
    98. Involuntary Removal. In the ACP Data Collection Notice the 
Commission asks whether a failure to comply with the rules established 
in this data collection could subject a provider to the involuntary 
removal process the Commission establishes in the ACP Order. Starry 
suggests that providers that utilize the safe-harbor provisions of the 
Consolidated Appropriations Act or

[[Page 2264]]

engage in ``minor infractions'' not be subject to involuntary removal 
from the Affordable Connectivity Program. The Commission declines to 
carve-out violations of the ACP Transparency Data Collection rules from 
the ACP's involuntary removal process. In the ACP Order, the Commission 
adopts the application of the safe-harbor provision of the 
Infrastructure Act, which provides that the Commission could not 
enforce a violation of the Act using sections 501, 502, or 503 or any 
rules promulgated under those sections if a participating provider 
demonstrates that it relied in good faith on information provided to 
such a provider to make any verifications required by the statute. The 
Commission clarifies that the safe harbor provided by the 
Infrastructure Act is only applicable to eligibility determinations, as 
the statute plainly provides. The Commission, therefore, declines to 
adopt Starry's proposed application of the Safe Harbor.
    99. Digital Equity and Inclusion. In the ACP Data Collection 
Notice, the Commission seeks comment on how its proposals may promote 
or inhibit advances in diversity, equity, inclusion, and accessibility, 
as well as the scope of the Commission's legal authority. The City of 
Seattle comments that detailed demographics ``are necessary to fully 
understand the profile of populations served and where gaps may exist'' 
and encourages the Commission ``to develop alternative approaches to 
collect demographic data and publish a demographic profile of ACP 
subscribers by ZIP code.'' The City of Seattle suggests ``at minimum 
collect data on whether companies are running credit checks on ACP 
applicants, denials of enrollments, and whether the ISP is using a 
third party for credit checks and if they are prohibited from releasing 
credit and consumer information.'' Common Sense comments that 
``relevant demographic data, including the enrollee's race, ethnicity, 
income, languages spoken, and household size'' should be collected to 
``understand the Affordable Connectivity Program's impact on digital 
equity and support efforts to address digital discrimination.'' Common 
Sense further suggests that the Commission shall collect information 
about the enrollment process and provider customer service practices, 
as well as information about ``providers' device offerings, including 
the types of devices offered and the price options for each type of 
device,'' and ``how many devices are distributed and at what price to 
consumers.'' Commenters did not suggest that any of the Commission's 
proposals inhibited digital equity and inclusion.
    100. As discussed, the Commission adopts an aggregate-level 
collection. While the additional subscriber-level demographic fields 
proposed by commenters preceding may be helpful to analyze populations, 
the Commission is unable to include them given the nature of its 
collection approach, which does not accommodate the collection of any 
subscriber-level data. The Commission further finds that the additional 
data suggested by commenters, such as information on credit checks is 
not inherently related to information regarding price and subscription 
rates, and therefore decline at this time to include them for the ACP 
Transparency Data Collection.
    101. Conclusion. The ACP Transparency Data Collection the 
Commission establishes today allows the Commission to collect 
information related to the price and subscription rates of internet 
service offerings of ACP providers consistent with the requirements of 
the Infrastructure Act. The Commission establishes an aggregate-level 
collection that will collect price, unique identifier, and plan 
characteristics from each ACP provider for each plan that has a 
household enrolled in the Affordable Connectivity Program, as well as 
the number of households that are subscribed to each plan by ZIP code, 
and the number of households that have reached a data cap, the average 
amount by which the household has exceeded its data cap, and average 
overage amount paid by households exceeding the data cap. The Bureau 
will further set forth deadlines for inaugural and subsequent 
collections of this information consistent with the Order.
    102. The Commission further delegates authority to the Bureau to 
make necessary adjustments to the ACP Transparency Data Collection and 
to provide additional detail and specificity to the requirements of the 
ACP Transparency Data Collection to conform with the intent of the 
Order.

III. Severability

    103. All of the rules that are adopted in the Order are designed to 
work in unison to implement the ACP Transparency Data Collection. Each 
separate ACP Transparency Data Collection rule the Commission adopts 
here, however, serves a particular function in the implementation of 
the ACP Transparency Data Collection. Therefore, it is the Commissions 
intent that each of the rules adopted herein shall be severable. If any 
of the rules is declared invalid or unenforceable for any reason, it is 
the Commissions intent that the remaining rules shall remain in full 
force and effect.

IV. Procedural Matters

    104. Paperwork Reduction Act. This Fourth Report and Order may 
contain new or modified information collection requirements subject to 
the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. All such 
new or modified information collection requirements will be submitted 
to the Office of Management and Budget (OMB) for review under section 
3507(d) of the PRA. OMB, the general public, and other Federal agencies 
will be invited to comment on the revised information collection 
requirements contained in this proceeding. In addition, the Commission 
notes that pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, the Commission previously sought specific comment 
on how it might further reduce the information collection burden on 
small business concerns with fewer than 25 employees. The Commission 
has described impacts that might affect small businesses in the FRFA. 
Compliance with the information collection requirements will not be 
required until OMB has completed any review that the Bureau determines 
is required under the Paperwork Reduction Act.
    105. Congressional Review Act. The Commission has determined, and 
the Administrator of the Office of Information and Regulatory Affairs, 
Office of Management and Budget concurs, that this rule is ``non-
major'' under the Congressional Review Act, 5 U.S.C. 804(2). The 
Commission will send a copy of the Fourth Report & Order, etc. to 
Congress and the Government Accountability Office pursuant to 5 U.S.C. 
801(a)(1)(A).
    106. Final Regulatory Flexibility Analysis. As required by the 
Regulatory Flexibility Act of 1980 (RFA), the Commission has prepared a 
Final Regulatory Flexibility Analysis (FRFA) relating to the Fourth 
Report and Order.
    107. Need for, and Objectives of, the Report and Order. In 
Infrastructure Act, Congress established the ACP, which is designed to 
promote access to broadband internet access services by households that 
meet specified eligibility criteria by providing funding for 
participating providers to offer certain services and connected devices 
to these households at discounted prices. The Affordable Connectivity 
Program provides funds for an affordable connectivity benefit 
consisting of a $30.00 per month discount on the price of broadband

[[Page 2265]]

internet access services that participating providers supply to 
eligible households in most parts of the country and a $75.00 per month 
discount on such prices in Tribal areas. The Commission establishes 
rules governing the affordable connectivity benefit and related matters 
in the ACP Report and Order.
    108. The Infrastructure Act also directs the Commission to issue 
``final rules regarding the annual collection by the Commission 
relating to the price and subscription rates of each internet service 
offering of a participating provider under the Affordable Connectivity 
Program.''
    109. The Order adopts rules to implement section 60502(c) of the 
Infrastructure Act, to provide greater transparency into broadband 
services provided by ACP participating providers, and to allow the 
Commission to assess its progress towards the ACP program goals. 
Specifically, the Commission establishes the ACP Transparency Data 
Collection, a mandatory annual data collection of price, subscription 
rate and plan characteristic information. The Commission collects plan 
pricing, unique identifier and plan characteristic information at the 
ZIP code level.
    110. In executing the Commission obligations under the 
Infrastructure Act establishes rules and requirements in the Order that 
implement the relevant portions of the Infrastructure Act efficiently 
and by balancing privacy interests of subscribers and minimizing 
burdens on participating providers. This action is consistent with the 
Commission ongoing effort to bridge the digital divide by ensuring that 
low-income households have access to affordable, high-quality broadband 
internet access service.
    111. Summary of Significant Issues Raised by Public Comments in 
Response to the IRFA. JSI filed reply comments asserting that 
``requiring small providers to complete new NLAD data fields when 
enrolling new subscribers and updating fields for households already 
enrolled in the ACP would be highly burdensome.'' While the Commission 
notes the concerns raised by JSI, the Commission believes that the 
recordkeeping, reporting, and other compliance requirements adopted in 
the Order strike a balance between providing small and other affected 
entities flexibility in reporting data while allowing the Commission to 
obtain the necessary information to meet its obligations under the 
Infrastructure Act. The Commission discusses alternatives considered 
but decline to adopt, that would have increased the costs and/or 
burdens on small entities.
    112. Response to Comments by the Chief Counsel for Advocacy of the 
Small Business Administration. Pursuant to the Small Business Jobs Act 
of 2010, which amended the RFA, the Commission is required to respond 
to any comments filed by the Chief Counsel of the Small Business 
Administration (SBA) and to provide a detailed statement of any change 
made to the proposed rule(s) as a result of those comments.
    113. The Chief Counsel did not file any comments in response to the 
proposed rule(s) in this proceeding.
    114. Description and Estimate of the Number of Small Entities to 
Which These Rules Will Apply. The RFA directs agencies to provide a 
description of, and where feasible, an estimate of the number of small 
entities that may be affected by the proposed rules, if adopted. The 
RFA generally defines the term ``small entity'' as having the same 
meaning as the terms ``small business,'' ``small organization,'' and 
``small governmental jurisdiction.'' In addition, the term ``small 
business'' has the same meaning as the term ``small business concern'' 
under the Small Business Act. A small business concern is one that: (1) 
is independently owned and operated; (2) is not dominant in its field 
of operation; (3) satisfies any additional criteria established by the 
Small Business Administration (SBA).
    115. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. The Commission actions, over time, may affect small 
entities that are not easily categorized at present. The Commission 
therefore describes here, at the outset, three broad groups of small 
entities that could be directly affected herein. First, while there are 
industry specific size standards for small businesses that are used in 
the regulatory flexibility analysis, according to data from the Small 
Business Administration's (SBA) Office of Advocacy, in general a small 
business is an independent business having fewer than 500 employees. 
These types of small businesses represent 99.9% of all businesses in 
the United States, which translates to 32.5 million businesses.
    116. Next, the type of small entity described as a ``small 
organization'' is generally ``any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.'' 
The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 
or less to delineate its annual electronic filing requirements for 
small exempt organizations. Nationwide, for tax year 2020, there were 
approximately 447,689 small exempt organizations in the U.S. reporting 
revenues of $50,000 or less according to the registration and tax data 
for exempt organizations available from the IRS.
    117. Finally, the small entity described as a ``small governmental 
jurisdiction'' is defined generally as ``governments of cities, 
counties, towns, townships, villages, school districts, or special 
districts, with a population of less than fifty thousand.'' U.S. Census 
Bureau data from the 2017 Census of Governments indicate that there 
were 90,075 local governmental jurisdictions consisting of general 
purpose governments and special purpose governments in the United 
States. Of this number there were 36,931 general purpose governments 
(county, municipal and town or township) with populations of less than 
50,000 and 12,040 special purpose governments--independent school 
districts with enrollment populations of less than 50,000. Accordingly, 
based on the 2017 U.S. Census of Governments data, the Commission 
estimates that at least 48,971 entities fall into the category of 
``small governmental jurisdictions.''
    118. Wired Broadband internet Access Service Providers. (Wired 
ISPs). Providers of wired broadband internet access service include 
various types of providers except dial-up internet access providers. 
Wireline service that terminates at an end user location or mobile 
device and enables the end user to receive information from and/or send 
information to the internet at information transfer rates exceeding 200 
kilobits per second (kbps) in at least one direction is classified as a 
broadband connection under the Commission's rules. Wired broadband 
internet services fall in the Wired Telecommunications Carriers 
industry. The SBA small business size standard for this industry 
classifies firms having 1,500 or fewer employees as small. U.S. Census 
Bureau data for 2017 show that there were 3,054 firms that operated in 
this industry for the entire year. Of this number, 2,964 firms operated 
with fewer than 250 employees.
    119. Additionally, according to Commission data on internet access 
services as of December 31, 2018, nationwide there were approximately 
2,700 providers of connections over 200 kbps in at least one direction 
using various wireline technologies. The Commission does not collect 
data on the number of employees for providers of these services, 
therefore, at this time the Commission is not able to estimate the 
number of providers that would qualify as small under the SBA's small 
business size standard. However, in light of the

[[Page 2266]]

general data on fixed technology service providers in the Commission's 
2020 Communications Marketplace Report, the Commission believes that 
the majority of wireline internet access service providers can be 
considered small entities.
    120. Wireless Broadband internet Access Service Providers (Wireless 
ISPs or WISPs). Providers of wireless broadband internet access service 
include fixed and mobile wireless providers. The Commission defines a 
WISP as ``[a] company that provides end-users with wireless access to 
the internet[.]'' Wireless service that terminates at an end user 
location or mobile device and enables the end user to receive 
information from and/or send information to the internet at information 
transfer rates exceeding 200 kilobits per second (kbps) in at least one 
direction is classified as a broadband connection under the 
Commission's rules. Neither the SBA nor the Commission have developed a 
size standard specifically applicable to Wireless Broadband internet 
Access Service Providers. The closest applicable industry with an SBA 
small business size standard is Wireless Telecommunications Carriers 
(except Satellite). The SBA size standard for this industry classifies 
a business as small if it has 1,500 or fewer employees. U.S. Census 
Bureau data for 2017 show that there were 2,893 firms in this industry 
that operated for the entire year. Of that number, 2,837 firms employed 
fewer than 250 employees.
    121. Additionally, according to Commission data on internet access 
services as of December 31, 2018, nationwide there were approximately 
1,209 fixed wireless and 71 mobile wireless providers of connections 
over 200 kbps in at least one direction. The Commission does not 
collect data on the number of employees for providers of these 
services, therefore, at this time the Commission is not able to 
estimate the number of providers that would qualify as small under the 
SBA's small business size standard. However, based on data in the 
Commission's 2020 Communications Marketplace Report, FCC-20-188, 36 FCC 
Rcd 2945, December 31, 2020, on the small number of large mobile 
wireless nationwide and regional facilities-based providers, the dozens 
of small regional facilities-based providers and the number of wireless 
mobile virtual network providers in general, as well as on terrestrial 
fixed wireless broadband providers in general, the Commission believes 
that the majority of wireless internet access service providers can be 
considered small entities.
    122. Description of Projected Reporting, Recordkeeping, and Other 
Compliance Requirements for Small. The Commission expects the rules 
adopted in the Order will impose new or additional reporting, 
recordkeeping, and/or other compliance obligations on small entities. 
Specifically, the Commission establishes new reporting and disclosure 
requirements for ACP participating providers in order to comply with 
the Infrastructure Investment and Jobs Act's (Infrastructure Act) 
broadband transparency requirement, and to determine the value being 
provided to eligible households by the ACP. The Commission requires 
providers to submit unique identifiers, plan characteristic and plan 
pricing information, and subscription rate information annually at the 
ZIP code level.
    123. The requirements the Commission adopts in the Order continue 
the Commission's actions to comply with the Infrastructure Act and 
develop better data to advance its statutory obligations and program 
goals of closing the digital divide. The Commission concludes that it 
is necessary to adopt these rules to obtain plan pricing and 
characteristic information to allow the Commission to target outreach 
efforts, and ensure that the Commission achieves the goals of the ACP 
of reducing the digital divide, and increasing participation in and 
awareness of the program. The Commission is aware of the need to ensure 
that the benefits resulting from use of the data outweigh the reporting 
burdens imposed on small entities. The Commission believes that any 
additional burdens imposed by its reporting approach for providers are 
outweighed by the significant benefit to be gained from more precise 
data about ACP participating providers' service offerings. The 
Commission is likewise cognizant that small entities will incur costs 
and may have to hire attorneys, consultants, or other professionals to 
comply with the Order. Although the Commission cannot quantify the cost 
of compliance with the requirements in the Order, the Commission 
believes the reporting and other requirements that the Commission has 
adopted are necessary to comply with the Infrastructure Act, and in its 
efforts in reducing the digital divide.
    124. Steps Taken to Minimize the Significant Economic Impact on 
Small Entities, and Significant Alternatives Considered. The RFA 
requires an agency to describe any significant, specifically small 
business, alternatives that it has considered in reaching its proposed 
approach, which may include the following four alternatives (among 
others): ``(1) the establishment of differing compliance or reporting 
requirements or timetables that take into account the resources 
available to small entities; (2) the clarification, consolidation, or 
simplification of compliance and reporting requirements under the rule 
for such small entities; (3) the use of performance rather than design 
standards; and (4) an exemption from coverage of the rule, or any part 
thereof, for such small entities.''
    125. The Commission has considered the comments in the record and 
is mindful of the time, money, and resources that some small entities 
may incur to comply with the requirements of this Order. In reaching 
the requirements the Commission adopts in the Order, there were various 
approaches and alternatives that the Commission consideres but rejected 
which prevented small entities from incurring additional burdens and 
economic impacts. For example, the Commission declines to collect data 
on connection reliability, or plan coverage, although some comments 
supported such a collection. The Commission also declines to adopt a 
pure subscriber level collection, as proposed in the ACP Data 
Collection Notice and supported by a number of commenters, out of a 
concern for the burdens imposed on small entities. Instead, the 
Commission adopts an aggregate level collection.
    126. Another step taken by the Commission to minimize the 
compliance burdens on small entities include guidance and support on 
data collection through webinars, technical instructions, form 
instructions, and frequently asked questions. In the Order the 
Commission directs USAC to develop provider education and training 
programs to reduce the compliance burden on providers in complying with 
the requirements set forth in the Order.
    127. Report to Congress. The Commission will send a copy of the 
Fourth Report and Order, including this FRFA, in a report to be sent to 
Congress pursuant to the Congressional Review Act. In addition, the 
Commission will send a copy of the Fourth Report and Order, including 
the FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the 
Fourth Report and Order and FRFA (or summaries thereof) will also be 
published in the Federal Register.

V. Ordering Clauses

    128. Accordingly, it is ordered that, pursuant to the authority 
contained in Section 904 of Division N, Title IX of the Consolidated 
Appropriations Act,

[[Page 2267]]

2021, Public Law 116-260, 134 Stat. 1182, as amended by Infrastructure 
Investment and Jobs Act, Public Law 117-58, 135 Stat. 429 (2021), this 
Fourth Report and Order is adopted.
    129. It is further ordered that the Fourth Report and Order shall 
be effective February 13, 2023, except new 47 CFR 54.1813(b) through 
(d) shall be effective upon announcement in the Federal Register of the 
Office of Management and Budget approval of the information collection 
requirements as required by the Paperwork Reduction Act.

List of Subjects in 47 CFR Part 54

    Internet, Telecommunications, Telephone.

Federal Communications Commission.
Katura Jackson,
Federal Register Liaison Officer.

Final Rules

    For the reasons set forth, part 54 of title 47 of the Code of 
Federal Regulations is amended as follows:

PART 54--UNIVERSAL SERVICE

0
1. The authority citation for part 54 continues to read as follows:

    Authority:  47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220, 
229, 254, 303(r), 403, 1004, 1302, 1601-1609, and 1752, unless 
otherwise noted.


0
2. Add Sec.  54.1813 to subpart R to read as follows:


Sec.  54.1813  Affordable Connectivity Program Transparency Data 
Collection.

    (a) Definitions. For purposes of the Affordable Connectivity 
Program Transparency Data Collection:
    Actual Speed. The term ``actual speed'' means the typical upload 
and download speeds period for a particular speed tier, either based on 
Measuring Broadband America (MBA) methodology, or other relevant 
testing data.
    Advertised Speed. The term ``advertised speed'' means the maximum 
advertised upload and download speeds for fixed broadband plans, and 
the minimum advertised upload and download speeds for mobile broadband 
plans.
    Base monthly price. The term ``base monthly price'' means the 
monthly price for a broadband internet service offering that would be 
paid by a household enrolled in the Affordable Connectivity Program, 
absent the affordable connectivity benefit. The base monthly price does 
not include the price of any recurring monthly fees (such as fees 
providers impose at their discretion, or equipment rental fees), 
government taxes or fees, or one-time charges (such as installation 
charges, equipment purchase fee, etc.).
    Bundle. The term ``bundle'' means a combination of broadband 
internet access service with any non-broadband internet access service 
offerings, including but not limited to video, voice, and text.
    Data Cap. The term ``data cap'' means data usage restrictions on 
both pre-paid and post-paid plans, including ``soft caps'' where a 
user's internet traffic is throttled or deprioritized, and ``hard 
caps'' where a user's access to the internet is discontinued.
    Latency. The term ``latency'' means the length of time for a signal 
to be sent between two defined end points and the time it takes for an 
acknowledgement of the receipt of the signal to be received.
    Legacy plan. The term ``legacy plan'' means an internet service 
offering in which an ACP subscriber is enrolled that a participating 
provider is not accepting new enrollment.
    Personally identifiable information. The term ``personally 
identifiable information'' means information that can be used to 
distinguish or trace an individual's identity, either alone or when 
combined with other information that is linked or linkable to a 
specific individual.
    Plan. The term ``plan'' means ``internet service offering'' as 
defined in Sec.  54.1800(n).
    Unique identifier. The term ``unique identifier'' means a machine-
readable string of characters uniquely identifying a broadband plan, 
not containing any special characters. Where a broadband plan is 
associated with a broadband label under 47 CFR 8.1(a), the unique 
identifier must be the same as that in the broadband label. Unique 
identifiers cannot be reused or refer to multiple plans. A provider 
must develop a new plan identifier, when a plan's components change.
    (b) [Reserved]
    (c) [Reserved]
    (d) [Reserved]
    (e) Publication of data--(1) Obligation to publish data. The 
Commission will make aggregated, non-provider-specific data relating to 
broadband internet access service information collected in paragraph 
(b) of this section available to the public in a commonly used 
electronic format without risking the disclosure of personally 
identifiable information, as defined in paragraph (a)(8) of this 
section, or proprietary information.
    (2) Requests for withholding from public inspection. When 
submitting information to the Commission under paragraph (c) of this 
section, a participating provider may submit a request that information 
be withheld from public inspection under Sec.  0.459 of this chapter.
    (f) Enforcement. A violation of the collection requirement occurs 
where a provider fails to submit ACP Transparency Data Collection 
information by the compliance date for a state in which the provider 
has ACP-enrolled subscribers. A base forfeiture amount for each state 
is the lesser of $22,000 or the latest monthly claim amount, for each 
state for which a provider has failed to submit complete information.
    (g) Compliance. Paragraphs (b) through (d) of this section may 
contain information collection and/or recordkeeping requirements. 
Compliance with paragraphs (b) through (d) of this section will not be 
required until this paragraph (g) of this section is removed or 
contains a compliance date, which will not occur until after the Office 
of Management and Budget completes review of such requirements pursuant 
to the Paperwork Reduction Act or until after the Wireline Competition 
Bureau determines that such review is not required. The Commission 
directs the Wireline Competition Bureau to announce a compliance date 
for paragraphs (b) through (d) of this section by subsequent Public 
Notice and to cause this section to be revised accordingly.

0
3. Delayed indefinitely., amend Sec.  54.1813 by adding paragraphs (b) 
through (d) to read as follows:
    (b) Information to be collected. (1) For each plan that a household 
enrolled in the Affordable Connectivity Program is subscribed to, all 
participating providers shall submit, in an electronic format as 
directed by the Commission at the ZIP code level, by the deadline 
described in paragraph (c) of this section,
    (i) The unique identifier with the following plan characteristics:
    (A) Base monthly price,
    (B) Whether the base monthly price is introductory, and if so, the 
term of the introductory price and the post-introductory price,
    (C) Itemized provider-imposed recurring monthly fees,
    (D) Itemized one-time fees,
    (E) Speed (actual and advertised speeds),
    (F) Latency,
    (G) Data caps (including de-prioritization and throttling), any 
charges for additional data usages along with the relevant increment 
(e.g., 1 GB, 500 MB),
    (H) Whether the service is bundled, the high-level components of 
the

[[Page 2268]]

bundle, and voice minutes or number of text messages included as part 
of the bundle if applicable,
    (I) Whether any associated equipment is required, whether any 
required associated equipment is included in the advertised cost, and 
the one-time fee or rental cost for required associated equipment;
    (ii) The number of ACP households subscribed;
    (iii) The number of ACP households that have reached a data cap 
during month prior to the snapshot date;
    (iv) The average amount by which ACP households have exceeded the 
data cap for the month prior to the snapshot date;
    (v) The average overage amount paid by ACP households exceeding a 
data cap for the month prior to the snapshot date;
    (vi) The number of ACP households receiving the ACP Tribal enhanced 
benefit;
    (vii) The number of ACP households receiving the ACP high-cost 
enhanced benefit;
    (viii) The number of ACP households who are also enrolled in 
Lifeline for that plan;
    (2) Legacy plans. For each legacy plan that a household enrolled in 
the Affordable Connectivity Program is subscribed to, all participating 
providers are required to submit all of the characteristics identified 
in paragraph (b)(1) of this section except: speed (actual and 
advertised), latency, introductory monthly charge, the length of the 
introductory period, and any one-time fees.
    (c) Timing of collection. No later than the compliance date to be 
established by the Wireline Competition Bureau pursuant to paragraph 
(g) of this section and annually thereafter, participating providers 
must submit to the Commission the information in paragraph (b) of this 
section for all plans in which an Affordable Connectivity Program 
household is subscribed. The information must be current as of an 
annual snapshot date established and announced by the Bureau.
    (d) Certifications. As part of the data collection required by 
paragraph (b) of the section, an officer of the participating provider 
shall certify, under penalty of perjury, that:
    (1) The officer is authorized to submit the data collection on 
behalf of the participating provider; and
    (2) The data and information provided in the data collection is 
true, complete, and accurate to the best of the officer's knowledge, 
information, and belief, and is based on information known to the 
officer or provided to the officer by employees responsible for the 
information being submitted.

[FR Doc. 2022-28435 Filed 1-12-23; 8:45 am]
BILLING CODE P