[Federal Register Volume 88, Number 46 (Thursday, March 9, 2023)]
[Proposed Rules]
[Pages 14529-14536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04751]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54

[CC Docket Nos. 02-6, 96-45, 97-21; FCC 23-10; FR ID 128840]


In the Matter of Schools and Libraries Universal Support 
Mechanism, Federal-State Joint Board on Universal Service, Changes to 
the Board of Directors of the National Exchange Carrier Association, 
Inc.

AGENCY: Federal Communications Commission.

ACTION: Proposed rule.

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SUMMARY: In this document, the Federal Communications Commission 
(Commission) seeks comment on ways to further improve E-Rate program 
rules and encourage greater Tribal participation in the E-Rate program. 
The Commission also seeks comment on whether there are other small or 
rural non-Tribal applicants that face similar barriers that impact 
their equitable access to the E-Rate program.

DATES: Comments are due on or before April 24, 2023, and reply comments 
are due on or before May 23, 2023.

ADDRESSES: All filings should refer to CC Docket Nos. 02-6, 96-45, and 
97-21. Comments may be filed by paper or by using the Federal 
Communications Commission's Electronic Comment Filing System (ECFS). 
See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 
24121 (1998).
    [ssquf] Electronic Filers: Comments and replies may be filed 
electronically by using the internet by accessing ECFS: https://www.fcc.gov/ecfs.
    [ssquf] Paper Filers: Parties who choose to file by paper must file 
an original and one copy of each filing. If more than one docket or 
rulemaking number appears in the caption of this proceeding, filers 
must submit two additional copies for each additional docket or 
rulemaking number.
    [ssquf] Filings can be sent by commercial overnight courier or by 
first-class or overnight U.S. Postal Service mail. All filings must be 
addressed to the Commission's Secretary, Office of the Secretary, 
Federal Communications Commission.
    [ssquf] Commercial overnight mail (other than U.S. Postal Service 
Express Mail and Priority Mail) must be sent to 9050 Junction Drive, 
Annapolis Junction, MD 20701.
    [ssquf] U.S. Postal Service first-class, Express, and Priority mail 
must be addressed to 45 L St, NE, Washington, DC 20554.
    [ssquf] Effective March 19, 2020, and until further notice, the 
Federal Communications Commission no longer accepts any hand or 
messenger delivered filings. This is a temporary measure taken to help 
protect the health and safety of individuals, and to mitigate the 
transmission of COVID-19.
    [ssquf] People with Disabilities. To request materials in 
accessible formats for people with disabilities (Braille, large print, 
electronic files, audio format), send an email to [email protected] or 
call the Consumer & Governmental Affairs Bureau at (202) 418-0530.
    [ssquf] Availability of Documents: Comments, reply comments, and ex 
parte submissions will be publicly available online via ECFS.

FOR FURTHER INFORMATION CONTACT: Johnny Roddy, Wireline Competition 
Bureau, (202) 418-7400 or by email at [email protected]. The 
Commission asks that requests for accommodations be made as soon as 
possible in order to allow the agency to satisfy such requests whenever 
possible. Send an email to [email protected] or call the Consumer and 
Governmental Affairs Bureau at (202) 418-0530.

SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice 
of Proposed Rulemaking in CC Docket Nos. 02-6, 96-45, and 97-21; FCC 
23-10, adopted February 16, 2023 and released on February 17, 2023. Due 
to the COVID-19 pandemic, the Commission's headquarters will be closed 
to the

[[Page 14530]]

general public until further notice. See FCC Announces Closure of FCC 
Headquarters Open Window and Change in Hand-Delivery Policy, Public 
Notice, DA 20-304 (March 19, 2020). https://www.fcc.gov/document/fcc-closes-headquarters-open-window-and-changes-hand-delivery-policy. The 
full text of this document is available at the following internet 
address: https://www.fcc.gov/document/fcc-encourages-greater-tribal-participation-e-rate-program-0.
    Ex Parte Rules--Permit but Disclose. Pursuant to Sec.  1.1200(a) of 
the Commission's rules, this Notice shall be treated as a ``permit-but-
disclose'' proceeding in accordance with the Commission's ex parte 
rules. Persons making ex parte presentations must file a copy of any 
written presentation or a memorandum summarizing any oral presentation 
within two business days after the presentation (unless a different 
deadline applicable to the Sunshine period applies). Persons making 
oral ex parte presentations are reminded that memoranda summarizing the 
presentation must (1) list all persons attending or otherwise 
participating in the meeting at which the ex parte presentation was 
made, and (2) summarize all data presented and arguments made during 
the presentation. If the presentation consisted in whole or in part of 
the presentation of data or arguments already reflected in the 
presenter's written comments, memoranda or other filings in the 
proceeding, the presenter may provide citations to such data or 
arguments in his or her prior comments, memoranda, or other filings 
(specifying the relevant page and/or paragraph numbers where such data 
or arguments can be found) in lieu of summarizing them in the 
memorandum. Documents shown or given to Commission staff during ex 
parte meetings are deemed to be written ex parte presentations and must 
be filed consistent with rule Sec.  1.1206(b). In proceedings governed 
by rule Sec.  1.49(f) or for which the Commission has made available a 
method of electronic filing, written ex parte presentations and 
memoranda summarizing oral ex parte presentations, and all attachments 
thereto, must be filed through the electronic comment filing system 
available for that proceeding, and must be filed in their native format 
(e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this 
proceeding should familiarize themselves with the Commission's ex parte 
rules.
    In light of the Commission's trust relationship with Tribal Nations 
and its commitment to engage in government-to-government consultation 
with them, it finds the public interest requires a limited modification 
of the ex parte rules in this proceeding. Tribal Nations, like other 
interested parties, should file comments, reply comments, and ex parte 
presentations in the record to put facts and arguments before the 
Commission in a manner such that they may be relied upon in the 
decision-making process consistent with the requirements of the 
Administrative Procedure Act. However, at the option of the Tribe, ex 
parte presentations made during consultations by elected and appointed 
leaders and duly appointed representatives of federally recognized 
Indian Tribes and Alaska Native Villages to Commission decision makers 
shall be exempt from the rules requiring disclosure in permit-but-
disclose proceedings and exempt from the prohibitions during the 
Sunshine Agenda period. To be clear, while the Commission recognizes 
consultation is critically important, it emphasizes that the Commission 
will rely in its decision-making only on those presentations that are 
placed in the public record for this proceeding.

I. Introduction

    1. The E-Rate program provides support to ensure that schools and 
libraries can obtain affordable, high-speed broadband services and 
internet equipment to connect today's students and library patrons with 
next-generation learning opportunities and services. In January 2022, 
the Commission began an initiative to increase Tribal libraries' access 
to E-Rate support by first clarifying that Tribal libraries are 
eligible to participate in the program and later launching its Tribal 
Library Pilot Program to ensure Tribal library institutions have 
equitable access to the E-Rate program. To continue to address the 
underrepresentation of Tribal libraries in the E-Rate program, the 
Commission seeks comment on ways to further improve program rules and 
encourage greater Tribal participation in the program. The Commission 
also seeks comment on whether there are other small or rural non-Tribal 
applicants that face similar barriers that impede their equitable 
access to the E-Rate program.

II. Discussion

    2. The Commission seeks comment on several ways to simplify the E-
Rate program rules to make it easier for Tribal applicants to 
participate in the program without contravening congressional 
directives or increasing the risk of waste, fraud, or abuse. For 
example, through the Commission's outreach to Tribal libraries this 
past year, the Commission recognized that Tribal libraries still 
encounter barriers that limit access to the E-Rate program, and these 
barriers negatively impact the members of the Tribal communities that 
they serve. The Commission seeks comment on a number of these issues to 
determine whether changes or clarifications would help Tribal 
applicants access E-Rate support and better serve their communities. 
The Commission also seeks comment on any other ways that the Commission 
can help enable more Tribal applicants to participate in the E-Rate 
program. Finally, the Commission seeks comment on whether there are 
other small or rural non-Tribal schools and libraries that face similar 
barriers that impede their equitable access to the E-Rate program and 
whether similar reforms may be needed to encourage their participation.
    3. The Commission anticipates that any revisions to its rules or 
procedures implementing the E-Rate program would benefit from Tribal 
consultation. The Commission therefore directs the Office of Native 
Affairs and Policy (ONAP), in coordination with the Wireline 
Competition Bureau (Bureau), to conduct government-to-government 
consultation as appropriate with Tribal Nations about the topics the 
Commission raises in this Notice of Proposed Rulemaking. Tribal Nations 
may also notify ONAP of their desire for consultation via email to 
[email protected].

A. Tribal College Libraries

    4. In order to develop a complete record, the Commission seeks 
comment on whether to modify Sec.  54.501(b)(2) of its rules to allow 
Tribal college libraries that serve a dual role by servicing the Tribal 
community as a public library to be eligible for E-Rate support. Under 
present rules, ``[o]nly libraries whose budgets are completely separate 
from any schools'' are eligible for E-Rate funding. The Commission 
adopted these safeguards in part to protect limited universal service 
funds from being diverted to institutions of higher education. However, 
there may be some instances where Tribal college libraries are also 
serving as the public library for their communities. In comments to the 
2021 Tribal Libraries NPRM, a commenter suggested making ``public 
serving librar[ies] of a Tribal College or University'' eligible for E-
Rate support. According to the Department of Education, there are 
thirty-two accredited Tribal colleges in the United States. Of these 
thirty-two Tribal college libraries, at least nineteen have received 
Institute of Museum and Library

[[Page 14531]]

Services (IMLS) grants as direct recipients or subrecipients to provide 
services to their communities. Many of these Tribal college libraries 
may be the only library in the community and take on the public library 
role in addition to being academic libraries.
    5. Section 254(h)(4) of the Communications Act of 1934, as amended 
(Act) excluded certain libraries from eligibility, but did not define 
libraries. In adopting the E-Rate program rules, the Commission barred 
college and university libraries from eligibility, finding this could 
result in otherwise ineligible institutions draining a substantial 
amount of universal service support from schools and libraries and is 
therefore inconsistent with section 254(h)(5), which limited support to 
elementary and secondary schools that meet certain criteria. The 
Commission seeks comment on whether the Commission should reconsider 
the Commission's bar on the eligibility of Tribal college libraries if 
they are also acting as a public library in their community, and 
whether doing so is consistent with section 254(h)(5) of the Act. Would 
making this eligibility change allow the E-Rate program to provide 
funding to more libraries serving and connecting Tribal patrons? What 
types of evidence, if any, should the Commission deem sufficient to 
demonstrate that a Tribal college library is serving a dual role: i.e., 
acting both in an academic capacity (serving students in a college) and 
more broadly as a public library (serving all members of the local 
community)? Should the Commission deem IMLS grants to a Tribal college 
library as probative in this regard? Why or why not? Should the 
Commission consider whether there are other Tribal or public libraries 
in the community already? The Commission seeks additional data or 
examples from commenters to help us determine whether Tribal college 
libraries are serving this dual role, and if so, whether they are 
unique in this regard; and to understand what other roles Tribal 
college libraries might serve in their communities. Should any 
additional requirements be imposed on Tribal college affiliated 
libraries to qualify for E-Rate support, such as being open a certain 
number of hours to the public or permitting any member of the public to 
request and have materials made available to them?
    6. The Commission notes that it seeks comment only on the needs of 
the Tribal college library that is also serving as a public library to 
its Tribal community, and does not propose to use the E-Rate program to 
fund the connectivity needs of the Tribal college or university. How 
can the Commission ensure the Tribal college library is supporting the 
Tribal community and that E-Rate support is not diverted for other 
higher education purposes contrary to congressional intent that funding 
flow to an institution of learning only if it is an elementary or 
secondary school? Should there be limits on the ability of a Tribal 
college to establish branch libraries? For example, the Commission in 
1997 was concerned a college library could establish branches in 
dormitories in order to fund services to other college buildings. Here, 
would limits on branches make sense or could the Commission rely on 
other measures, like a requirement that the building be open and 
accessible to the public? Are there any other concerns (e.g., 
procedural or budgetary) that might present challenges for Tribal 
college libraries to participate in the E-Rate program? Are there other 
rural non-Tribal college libraries, similar to the Tribal college 
libraries, that are also serving a dual role as the academic and public 
library for their rural community? The Commission also seeks data and 
information about these college libraries and comment on whether there 
are administrable ways to expand eligibility to Tribal college 
libraries providing public library services without reversing the 
Commission's 1997 decision to only make libraries eligible if their 
budgets were completely separate from colleges or universities. For 
example, do Tribal college libraries currently receive funding from 
sources other than the Tribal college or university because they are 
also serving the dual role as the Tribal community's public library?

B. Simplifying and Improving the E-Rate Application Process

    7. The Commission next seeks comment on ways that it can streamline 
the application process and make the E-Rate forms simpler. The American 
Library Association (ALA) and the Association of Tribal Archives, 
Libraries, and Museums (ATALM) have previously observed in response to 
the 2021 Tribal Libraries NPRM that only 12% of Tribal libraries had 
ever applied for E-Rate funding. Among the reasons cited by those that 
did not apply was the perceived complexity of the E-Rate application 
and funding process. The Commission agrees that further simplifying the 
E-Rate forms and processes could help to increase Tribal library 
participation in the program. Toward that end, the Commission notes 
that one of the goals of the Tribal Libraries E-Rate Pilot Program is 
to gain an understanding of the applicant experience and use the 
information to streamline the E-Rate program procedures and processes, 
particularly for Tribal applicants. The Commission expects the pilot 
program to be useful in determining how to improve the E-Rate program 
for Tribal libraries and will incorporate that feedback into this 
proceeding.
    8. Here, the Commission seeks comment on how to streamline the FCC 
forms or change parts of the application process that may be burdensome 
for Tribal libraries and other small or rural applicants. How could the 
Commission simplify the language of the FCC forms, or provide guidance 
about what the terminology used on the forms means? Which terminology 
is the most challenging for a Tribal entity? To reduce the number of 
FCC forms for applicants submitting only a small E-Rate funding request 
that is less likely to attract competitive bids, should the Commission 
consider providing an additional exemption to the FCC's competitive 
bidding rules? For example, should the Commission exempt low-cost 
purchases if the applicant is seeking category two equipment that 
totals less than a pre-discount cost of $3,600, the level that 
currently exists for the commercially available high-speed internet 
access services exemption, or some other level? Does the existing 
exemption for commercially available high-speed internet access 
services reduce applicant burden? What would a reasonable pre-discount 
cost be that would not create an undue risk of waste, fraud, and abuse 
in the program? Should there be a maximum pre-discount price per entity 
for each category of service in a single funding year? How could the 
Commission still ensure that applicants are purchasing cost-effective 
equipment and services? Is there any publicly available, existing 
pricing data for frequently purchased equipment and services that the 
Bureau could use to set ``safe harbor'' price levels for comparable 
regions, below which competitive bidding would not be required? Would 
exempting these purchases from competitive bidding encourage additional 
small and often rural entities, like Tribal libraries and schools, to 
participate in the program?
    9. Would Tribal libraries benefit from having extended or separate 
application filing windows because of the approval processes that may 
be needed for their E-Rate eligible procurements and purchases? The 
Commission understands from speaking with Tribal governments and 
libraries, for example, that the procurement processes for many Tribal 
schools are independent from the Tribal government's

[[Page 14532]]

procurement processes, but the Tribal library's purchases are often 
included with the Tribal government's procurements. The Commission 
seeks comment on whether the procurement processes for Tribal libraries 
are more complicated and protracted than Tribal schools' E-Rate 
procurements. Would a longer application filing window work better with 
the Tribal government or council's procurement requirements? How much 
additional time may be needed for Tribal libraries to complete their 
Tribal procurement processes and receive approval for their requested 
E-Rate eligible purchases and/or contracts? Are there any drawbacks 
that the Commission should consider in deciding whether to establish an 
extended or separate application filing window? Could a separate 
application window delay a Tribal library from timely obtaining 
broadband services during the funding year or limit the options 
available to an applicant?

C. Cost Allocation Rules and Procedures

    10. The Commission seeks comment on whether and how to simplify the 
E-Rate program cost allocation rules and procedures. Libraries that 
share services, equipment, or space with ineligible entities, like an 
administrative office, are eligible for E-Rate support, but often are 
required to cost allocate the portion of the cost of the services used 
by the ineligible entity. Cost allocation is a part of the E-Rate 
process that can be confusing for all applicants, but especially for 
Tribal libraries. For instance, some Tribal libraries are located 
within another Tribal building (e.g., the Tribal library only uses a 
portion of the building), share a building at different points in the 
week (e.g., the Tribal library operates four days a week, and the 
building is used by the Tribal community for other purposes the other 
three days), and/or share their internet connections with ineligible 
entities (e.g., the Tribal library obtains internet access as part of 
the Tribal nation's broader contract). For example, the Navajo Nation 
has chapter houses that, in addition to housing local government, 
contain a library that circulates materials and houses book collections 
for use by their communities. Tribal libraries in these kinds of 
circumstances may still receive E-Rate funding, but the Commission 
recognizes the burdens that potential cost allocation requirements may 
present and the possible deterrent effects of such requirements.
    11. The Commission seeks comment on the cost allocation challenges 
that Tribal libraries may face. Under the current procedures, are there 
particular challenges for cost allocation that arise because the Tribal 
libraries are housed in multi-use buildings? For example, as long as a 
Tribal library meets the conditions set out in the Sixth Report and 
Order, 75 FR 75393 (December 3, 2020), for community use, the library 
should not need to cost allocate the use of the bandwidth when the 
library is closed (e.g., from the parking lot), but are there other 
scenarios that are challenging for multi-use buildings? Are there ways 
the Commission could provide guidance on how or when Tribal libraries 
should or should not be required to perform cost allocations? If so, 
the Commission encourages commenters to provide specific examples of 
how their library building is used and questions about whether cost 
allocation would be required. The Commission also seeks comment on 
whether certain types of potentially ineligible use should be permitted 
without requiring Tribal libraries to cost allocate to simplify the E-
Rate application and invoicing processes. Are there other groups 
affiliated with the Tribal library (e.g., information technology (IT) 
departments or governing entities) for which Commission guidance is 
needed to make cost allocation requirements more manageable? Finally, 
what are the potential costs of addressing cost allocation challenges? 
How can the Commission prevent waste, fraud, and abuse in the E-Rate 
program while making changes in this area?

D. Category Two Discount Rates and Rule

    12. While the Commission recognizes the issues of digital equity 
exist for other entities, in this item, it seeks comment on making 
changes to the category two discount rates and rules for Tribal 
entities. The maximum category two discount rate is set at 85%, lower 
than the 90% maximum discount rate for eligible category one services. 
While the Commission adopted this 85% discount rate to encourage 
applicants to find the most cost-effective options, should the maximum 
category two discount rate be raised to 90% for Tribal schools and 
libraries to encourage participation and lower costs for these 
applicants? Commenters are invited to comment on both the benefits and 
drawbacks of increasing the discount level from 85% to 90% for category 
two services. The Commission also seeks comment on whether to consider 
increasing the $25,000 funding floor for Tribal schools and libraries. 
If so, what funding floor would be appropriate to ensure Tribal schools 
and libraries have sufficient category two funding to meet their 
internal connections and Wi-Fi network needs? If the minimum funding 
floor is increased, should the Commission consider raising it for all 
applicants or solely for Tribal schools and libraries? What can the 
Commission do to prevent waste, fraud, and abuse in the program if it 
raises the minimum funding floor? Should there be any special 
considerations regarding the category two budgets of Tribal libraries 
located in multi-use buildings? Are there any other changes or 
enhancements that can be made to category two rules to help Tribal 
schools and libraries and encourage their participation in the E-Rate 
program?

E. Tribal Representation on Universal Service Administrative Company 
(USAC) Board of Directors

    13. To increase Tribal input and representation in the federal 
universal service programs, the Commission seeks comment on a proposal 
to increase Tribal representation on the USAC Board of Directors (USAC 
Board) by adding a Tribal community representative director. In their 
joint comments to the 2021 Tribal Libraries NPRM, ALA and ATALM 
suggested adding a director ``to the USAC board with purview of tribal 
libraries and other tribal organizations that are beneficiaries of 
Universal Service Fund programs.'' The Commission seeks comment on this 
proposal and on how to ensure Tribal entities are fairly represented on 
the USAC Board and its underlying committees. Should the Commission add 
a director to the USAC Board to represent Tribal interests pertaining 
to universal service support provided to low-income households, 
schools, libraries, health care providers, and Tribally owned 
telecommunications companies? Would the addition of another director 
result in a governance imbalance on the Board? If so, are there 
alternatives the Commission should consider? Should the Commission 
considers other changes to the Commission's rules regarding the USAC 
Board that would benefit Tribal entities? The Commission seeks comment 
on these questions and other ways to increase Tribal representation and 
leadership at USAC and in the federal universal service programs.

F. Other Program Improvements

    14. In addition to the specific areas the Commission discussed, it 
also seeks comment on other measures the Commission should consider to 
make it easier for Tribal schools and libraries to participate in the 
E-Rate program. Are there other ways in which the Commission could 
increase

[[Page 14533]]

participation of Tribal schools and libraries or enhance the E-Rate 
program to help Tribal communities? What are the largest barriers for 
Tribal libraries that do not currently participate in the E-Rate 
program? The Commission seeks comment on examples of circumstances or 
considerations unique to Tribal schools or libraries that hinder or 
impede their participation in the E-Rate program. The Commission also 
seeks comment on whether there are other small or rural non-Tribal 
schools and libraries that face similar barriers that impede their 
equitable access to or participation in the E-Rate program. Please 
describe the barriers that these small or rural non-Tribal schools and 
libraries encounter that hinder or impede their ability to participate 
in the E-Rate program. Are there ways to leverage the Commission's 
relationships with other federal agencies to improve outreach and 
coordination to ensure Tribal entities are knowledgeable about federal 
options for schools and libraries?
    15. Are there any specific issues that Tribal entities encounter 
using the E-Rate Productivity Center (EPC), the online account and 
application management system for the E-Rate program? Are there any 
other rule changes that could specifically help Tribal schools and 
libraries with the E-Rate application, invoicing, and other 
administrative processes? Are there types of guidance or clarifications 
that the Commission or the Bureau could provide to address areas of 
confusion? How can the Commission better target help to Tribal schools 
and libraries? As noted above, the Commission launched the Tribal 
Library E-Rate Pilot Program to provide assistance to Tribal libraries 
and to receive feedback on E-Rate. Should the Commission consider any 
additional methods of outreach (e.g., in-person training, one-on-one 
assistance) to ensure that as many eligible Tribal schools and 
libraries as possible are aware of the program, understand how the 
program can help them meet their information technology and 
connectivity needs, and are prepared to be able to apply and receive 
support? If so, the Commission seeks comment on what these might be. 
Finally, should the Commission adopt a definition of ``Tribal'' in the 
E-Rate program rules? Currently, Tribal applicants are encouraged to 
self-identify as a Tribal school or a Tribal library by checking the 
Tribal box if ``the majority of students or library patrons served are 
Tribal members; if the building to receive service is located partially 
or entirely on Tribal land; if the applicant is a school operated by or 
receiving funding from the Bureau of Indian Education (BIE); or if the 
applicant is a school or library operated by a Tribal Nation.'' Would 
adopting a definition in the rules make it easier to measure Tribal 
progress toward program goals? Is this the appropriate definition of 
``Tribal'' for the E-Rate program? Should the Commission modify it? Are 
there Tribal schools or libraries that are located off of Tribal land? 
If so, should the Commission also define ``Tribal lands'' or other 
terms to make the definition more inclusive of such entities? The 
Commission further notes that checking whether ``the majority of 
students or library patrons served are Tribal members'' may be fact-
intensive and burdensome to administer. The Commission therefore seeks 
comment on whether it should remove that language from the existing 
Tribal definition and rely instead on other means to define ``Tribal.''

G. Digital Equity and Inclusion

    16. Finally, the Commission, as part of its continuing effort to 
advance digital equity for all, including Indigenous and Native 
American persons, people of color, persons with disabilities, persons 
who live in rural or Tribal areas, and others who are or have been 
historically underserved, marginalized, or adversely affected by 
persistent poverty or inequality, invites comment on any equity-related 
considerations and benefits (if any) that may be associated with the 
proposals and issues discussed herein. Specifically, the Commission 
seeks comment on how its proposals may promote or inhibit advances in 
diversity, equity, inclusion, and accessibility, as well the scope of 
the Commission's relevant legal authority.

III. Procedural Matters

    17. Paperwork Reduction Act. This document contains proposed new 
information collection requirements. The Commission, as part of its 
continuing effort to reduce paperwork burdens, invites the general 
public and the Office of Management and Budget (OMB) to comment on the 
information collection requirements contained in this document, as 
required by the Paperwork Reduction Act of 1995, Public Law 104-13. In 
addition, pursuant to the Small Business Paperwork Relief Act of 2002, 
Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission seeks 
specific comment on how it might further reduce the information 
collection burden for small business concerns with fewer than 25 
employees.
    18. Regulatory Flexibility Act. As required by the Regulatory 
Flexibility Act of 1980, as amended (RFA), the Commission has prepared 
this Initial Regulatory Flexibility Analysis (IRFA) of the possible 
significant economic impact on a substantial number of small entities 
by the policies and rules proposed in the Schools and Libraries 
Universal Support Mechanism, et al., Notice of Proposed Rulemaking. 
Written public comments are requested on this IRFA. Comments must be 
identified as responses to the IRFA and must be filed by the deadlines 
for comments in the Notice of Proposed rulemaking. The Commission will 
send a copy of the Notice of Proposed Rulemaking, including this IRFA, 
to the Chief Counsel for Advocacy of the Small Business Administration 
(SBA). In addition, the Notice of Proposed Rulemaking and IRFA (or 
summaries thereof) will be published in the Federal Register.
    19. The Commission's E-Rate program, formally known as the schools 
and libraries universal service support mechanism, provides support to 
schools and libraries allowing them to obtain affordable, high-speed 
broadband services and internal connections, which enables them to 
connect students and library patrons to critical next-generation 
learning opportunities and services. In the Notice of Proposed 
Rulemaking, the Commission's primary objectives are to address the 
underrepresentation of Tribal applicants and increase participation of 
Tribal libraries. To achieve these objectives, in the Notice of 
Proposed Rulemaking the Commission explore ways to further simplify the 
E-Rate program rules, reduce program barriers and burdens, and 
encourage greater Tribal participation and community representation.
    20. The Commission's efforts to simplify the E-Rate program include 
a request for comment on ways to improve the E-Rate application 
process, such as by simplifying E-Rate forms, providing an additional 
exemption to the competitive bidding rules, and whether creating an 
extended or separate application filing window for Tribal libraries 
would be beneficial to align with the applicable Tribal procurement 
requirements and approval processes. The Commission also seeks comment 
on modifying section 54.501(b)(2) of the Commission's rules to allow 
Tribal college libraries to become eligible for E-Rate funding if they 
are serving a public library function in their Tribal community, and on 
whether and how to simply the E-Rate program cost allocation rules for

[[Page 14534]]

Tribal applicants. Additionally, the Commission seeks comment on 
increasing the category two minimum funding floor for Tribal 
applicants, and increasing the highest category two discount rate for 
Tribal applicants to 90 percent.
    21. In the Notice of Proposed Rulemaking, the Commission discusses 
and seeks comment on a proposal to increase Tribal perspective and 
representation on federal universal service programs by creating a seat 
on the USAC Board of Directors for a Tribal community representative. 
The Commission also seeks comment on how to ensure the fair 
representation of Tribal entities on the USAC board and its underlying 
committees, and other ways to increase Tribal representation and 
leadership at USAC and in the federal universal service programs. In 
addition, the Commission seeks comment on other options the Commission 
should consider which would make it easier for Tribal schools and 
libraries to participate in the E-Rate program and other ways to 
improve the E-Rate program process for Tribal applicants.
    22. The proposed action is authorized pursuant to sections 1 
through 4, 201-202, 254, 303(r), and 403 of the Communications Act of 
1934, as amended, 47 U.S.C. 151 through 154, 201, 254, 303(r), and 403.
    23. 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; and (3) 
satisfies any additional criteria established by the Small Business 
Administration (SBA).
    24. Small Businesses, Small Organizations, Small Governmental 
Jurisdictions. The Commission's actions, over time, may affect small 
entities that are not easily categorized at present. The Commission 
therefore describes, 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.
    25. 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.
    26. 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 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.''
    27. Small entities potentially affected by the proposed rules 
herein include Schools, Libraries, Wired Telecommunications Carriers, 
All Other Telecommunications, Wireless Telecommunications Carriers 
(except Satellite), Wireless Telephony, Wired Broadband internet Access 
Service Providers (Wired ISPs), Wireless Broadband internet Access 
Service Providers (Wireless ISPs or WISPs), internet Service Providers 
(Non-Broadband), Vendors of Infrastructure Development or Network 
Buildout, Telephone Apparatus Manufacturing, Radio and Television 
Broadcasting and Wireless Communications Equipment Manufacturing.
    28. The potential rule changes discussed in the Notice of Proposed 
Rulemaking if adopted, could impose some new or modified reporting, 
recordkeeping or other compliance requirements on small entities. 
However, since the purpose of the Notice of Proposed Rulemaking is to 
streamline and simplify procedures, and improve the E-Rate program 
processes, the Commission anticipates that the rule modifications that 
may result from the matters upon which the Commission is seeking 
comment should reduce the economic impact of current compliance 
obligations on small entities. For example, the Commission seeks 
comment on a specific proposal to simplify the E-Rate program by 
reducing the number of required forms for entities making low-cost 
purchases, which would exempt such purchases from the E-Rate 
competitive bidding process. The Commission also seeks comment on 
whether to modify the application filing window for Tribal libraries 
providing a longer filing window in light of the approval processes 
that may be needed for their E-Rate eligible procurements and 
purchases. Additionally, in the Notice of Proposed Rulemaking the 
Commission inquires whether there are other rule changes to the 
application, invoicing, or other administrative processes in the E-Rate 
program that could be made to specifically help Tribal schools and 
libraries, and whether and how to simplify the E-Rate program cost-
allocation rules and procedures for Tribal and non-Tribal applicants 
and seek comment. In response to comments, the Commission may simplify 
and change the forms that applicants use to apply for the E-Rate 
program as well as modify filing and other administrative requirements, 
which should ease reporting, recordkeeping, and other compliance 
requirements for small entities.
    29. In assessing the cost of compliance for small entities, at this 
time the Commission cannot quantify the cost of compliance with any of 
the potential rule changes that may be adopted. Further, the Commission 
is not in a position to determine whether, if adopted, the proposals 
and matters upon which the Commission seeks comment in the Notice of 
Proposed Rulemaking will require small entities to hire professionals 
to comply. However, consistent with the Commission's objectives to 
streamline and simply the E-Rate program processes and procedures for 
Tribal schools and libraries, the Commission does not anticipate that 
small entities will be required to hire professionals to comply with 
any rule modifications it adopts. The Commission expects the 
information it received in comments

[[Page 14535]]

including where requested, cost information, to help the Commission 
identify and evaluate relevant compliance matters for small entities, 
including compliance costs and other burdens that may result from 
potential changes discussed in the Notice of Proposed Rulemaking.
    30. 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.''
    31. In the Notice of Proposed Rulemaking, the Commission has taken 
steps to minimize the economic impact on small entities from the 
changes to the E-Rate program on which the Commission seeks comment. 
Based on outreach with Tribal applicants, the Commission has learned 
that there are areas that may create burdens for Tribal entities and it 
seeks comment on how to reduce or eliminate those burdens. The 
Commission seeks comment on creating a competitive bidding exemption 
for low-cost funding requests which has the potential to reduce the 
number of forms for small entities requiring smaller amounts of E-Rate 
support. Both the competitive bidding exemption and the reduction of 
the number of necessary forms would reduce the associated costs for 
these activities for small entities. The Commission seeks comment on 
these matters. The Commission also seeks to update program rules and 
administration processes for applicants and service providers that 
participate in the E-Rate program which may reduce costs for small 
entities. More specifically, the Commission explores whether and how 
the E-Rate program cost-allocation rules and procedures for Tribal 
libraries can be made simpler.
    32. Further, the Commission inquired in the Notice of Proposed 
Rulemaking whether to increase the maximum category two discount rate 
from 85% to 90% for Tribal schools and libraries to increase 
participation and lower costs for these applicants, and whether the 
Commission should consider increasing the $25,000 funding floor for 
Tribal schools and libraries. If increased, the Commission asked what 
funding floor would be appropriate to ensure Tribal schools and 
libraries have sufficient category two funding to meet their internal 
connections and Wi-Fi network needs. The Commission also considered if 
the funding floor is increased, whether the Commission should raise it 
for all rural applicants or just for Tribal schools and libraries; 
whether there should be any special considerations involving category 
two budgets of Tribal libraries located in multi-use buildings; whether 
there are any other changes or enhancements that can be made to 
category two rules to help Tribal schools and libraries and increase 
their participation in the E-Rate program and invited commenters to 
submit comments on both the benefits and drawbacks of increasing the 
discount level from 85% to 90% for category two services.
    33. Additionally, the Commission invited commenters to suggest 
other measures the Commission should consider to make it easier for 
Tribal schools and libraries to participate in the E-Rate program. This 
may result in proposals from small entities that lessen the economic 
impact of, and increase their participation. The Commission expects the 
information it receives in comments to allow it to more fully consider 
ways to minimize the economic impact, and explore additional 
alternatives to improve and simplify opportunities for small entities 
to participate in the E-Rate program.

IV. Ordering Clauses

    34. Accordingly, it is ordered that, pursuant to the authority 
found in sections 1 through 4, 201-202, 254, 303(r) and 403 of the 
Communications Act of 1934, as amended, 47 U.S.C. 151 through 154, 201 
through 202, 254, 303(r), and 403, this Notice of Proposed Rulemaking 
is adopted.

List of Subjects in 47 CFR Part 54

    Communications common carriers, Internet, Libraries, Reporting and 
recordkeeping requirements, Schools, Telecommunications, Telephone.

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

Proposed Regulations

    For the reasons discussed in the preamble, the Federal 
Communications Commission proposes to amend part 54 of title 47 of the 
Code of Federal Regulations as follows:

PART 54--UNIVERSAL SERVICE

0
1. The authority 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. Amend Sec.  54.500 by adding in alphabetical order the definition 
for ``Tribal'' to read as follows:


Sec.  54.500  Terms and definitions.

* * * * *
    Tribal. An applicant is considered ``Tribal'' if the building to 
receive service is located partially or entirely on Tribal land, if the 
applicant is a school operated by or receiving funding from the Bureau 
of Indian Education (BIE), or if the applicant is a school or library 
operated by a Tribal Nation.
* * * * *
0
3. Amend Sec.  54.501 by revising paragraph (b)(2) and adding paragraph 
(b)(4) to read as follows:


Sec.  54.501  Eligible recipients.

* * * * *
    (b) * * *
    (2) Except as provided in paragraph (b)(4) of this section, a 
library's eligibility for universal service funding shall depend on its 
funding as an independent entity. Only libraries whose budgets are 
completely separate from any schools (including, but not limited to, 
elementary and secondary schools, colleges, and universities) shall be 
eligible for discounts as libraries under this subpart.
* * * * *
    (4) A Tribal college or university library that acts as a public 
library by having dedicated public library staff, regular hours, and a 
collection for public use in its community shall be eligible for 
discounts.
0
4. Amend Sec.  54.503 by revising paragraph (e) to read as follows:


Sec.  54.503  Competitive bidding requirements.

* * * * *
    (e) Exemption to competitive bidding requirements. (1) An applicant 
that seeks support for commercially available high-speed internet 
access services for a pre-discount price of $3,600 or less per school 
or library annually is exempt from the competitive bidding requirements 
in paragraphs (a) through (c) of this section.
    (i) internet access, as defined in Sec.  54.5, is eligible for this 
exemption only if the purchased service offers at least 100 Mbps 
downstream and 10 Mbps upstream.
    (ii) The Chief, Wireline Competition Bureau, is delegated authority 
to lower the annual cost of high-speed internet access services or 
raise the speed threshold of broadband services eligible

[[Page 14536]]

for this competitive bidding exemption, based on a determination of 
what rates and speeds are commercially available prior to the start of 
the funding year.
    (2) A Tribal applicant that seeks support for category one or 
category two services for a total pre-discount price of $3,600 or less 
per school or library annually is exempt from the competitive bidding 
requirements in paragraphs (a) through (c) of this section.
0
5. Amend Sec.  54.505 by revising paragraph (c) and adding paragraph 
(g) to read as follows:


Sec.  54.505  Discounts.

* * * * *
    (c) Matrices. Except as provided in paragraphs (d), (f), and (g) of 
this section, the Administrator shall use the following matrices to set 
discount rates to be applied to eligible category one and category two 
services purchased by eligible schools, school districts, libraries, or 
consortia based on the institution's level of poverty and location in 
an ``urban'' or ``rural'' area.
* * * * *
    (g) Tribal Category Two Discount Level. For the costs of category 
two services, Tribal schools and libraries at the highest discount 
level shall receive a 90 percent discount.
0
6. Amend Sec.  54.703 by revising paragraphs (b), (b)(12), and (13), 
and by adding new paragraph (b)(14) to read as follows:


Sec.  54.703  The Administrator's Board of Directors.

* * * * *
    (b) Board composition. The independent subsidiary's Board of 
Directors shall consist of twenty (20) directors:
* * * * *
    (12) One director shall represent state consumer advocates;
    (13) One director shall represent Tribal communities; and
    (14) The Chief Executive Officer of the Administrator.
* * * * *
0
7. Amend Sec.  54.705 by revising paragraphs (a)(2)(iv) and (v) and 
adding new paragraph (a)(2)(vi) to read as follows:


Sec.  54.705  Committees of the Administrator's Board of Directors.

    (a) * * *
    (2) * * *
    (iv) One Tribal community representative;
    (v) One at-large representative elected by the Administrator's 
Board of Directors; and
    (vi) The Administrator's Chief Executive Office
* * * * *
[FR Doc. 2023-04751 Filed 3-8-23; 8:45 am]
BILLING CODE 6712-01-P