Broadband Connectivity and COVID-19: The FCC’s Response

Broadband Connectivity and COVID-19: The FCC’s Response

Legal Sidebari

Broadband Connectivity and COVID-19:
The FCC’s Response
May 21, 2020
As states and localities have directed their citizens to stay home in response to the COVID-19 outbreak,
internet traffic in the United States has shifted dramatically. The greater number of individuals working
remotely over the internet, participating in online education, and seeking online sources of entertainment
threatens to place an increasing strain on American internet networks. The Federal Communications
Commission (FCC or Commission) has thus far focused its response on expanding internet access and
ensuring that networks can support increased traffic. Along with its widely publicized Keep Americans
Connected Initiative—an elective pledge for communications providers—the FCC has taken a number of
regulatory actions aimed at promoting internet connectivity. This Sidebar provides an overview of how
COVID-19 has affected the FCC’s operations, some ways the FCC has responded thus far, and common
criticisms and perceived shortcomings of the FCC’s approach.
Operations Affected by COVID-19
The FCC’s regulatory authority under the Communications Act of 1934 encompasses communications
made by wire or radio in interstate or foreign commerce. Over time, this authority has evolved to include
a growing number of responsibilities relating to the provision of wireless internet and telephone services.
The FCC also oversees a number of programs aimed at advancing internet and telephone accessibility
among rural, low-income, and disabled individuals.
Regulatory Authority over Wireless Internet Services
Title III of the Communications Act establishes a federal policy of controlling radio spectrum in the
United States and licensing its use. The FCC has primary responsibility for allocating non-federal radio
spectrum—i.e., designating the uses for bands of spectrum—and then licensing those bands to a variety of
entities. When executing this authority, the Commission must consider “whether the public interest,
convenience, and necessity will be served” by granting an entity a spectrum license.
Among those who license spectrum from the FCC are wireless internet and voice service providers. The
Commission has historically licensed spectrum to these providers from a band of frequencies known as
the Advanced Wireless Services band. The FCC grants licenses to operate at a given frequency such that a
particular entity’s use of spectrum does not cause interference with another entity’s. The amount of
Congressional Research Service
https://crsreports.congress.gov
LSB10475
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

link to page 3 Congressional Research Service
2
internet traffic a given provider can support at a time is limited by the amount of spectrum licensed to the
provider. Since the outbreak of COVID-19, the Commission thus has tried to adjust the regulatory
burdens placed on spectrum licensees to allow for greater internet connectivity.
Universal Service Fund Administration
The FCC oversees a number of programs through its Universal Service Fund (USF) aimed at promoting
access to high-speed internet, particularly for rural areas, low-income individuals (Lifeline), schools and
libraries (E-Rate), and rural healthcare providers (Rural Health Care). Section 254 of the
Telecommunications Act of 1996 authorizes the Commission to pursue these objectives. The FCC has
taken a number of actions relating to its USF programs in response to expected increases in demand for
high-speed internet due to the COVID-19 emergency, particularly in connection with telehealth services.
FCC Response Actions
Thus far, the FCC has responded to the network pressures produced by COVID-19 with several
regulatory tools at its disposal. For wireless internet service providers, the Commission is exercising
authority to grant temporary spectrum access, allowing providers to expand network capacity. As for the
FCC’s USF programs, the Commission has waived several program rules to relax burdens on program
participants, both individuals and institutions. The FCC has also waived rules that, while not directly
related to its oversight of USF programs or allocation of spectrum, relate to internet connectivity. Finally,
the Commission is responsible for disbursing funds allocated to it by the Coronavirus Aid, Relief, and
Economic Security Act (CARES Act).
Special Temporary Authority
Generally, an entity seeking to license spectrum must file an application with the FCC, which must act on
the application as provided for in the Communications Act. However, in “extraordinary circumstances
requiring temporary operations in the public interest,” the Commission may grant “special temporary
authority” to use designated spectrum for up to 180 days. Wireless internet providers, citing increased
traffic and the prospect of strained network capacity, have increasingly approached the FCC for grants of
special temporary authority to bolster their networks, and the FCC has granted several of these requests.
In response to the growing number of applications for special temporary authority, the Commission has
also released a guide with filing instructions.
Waiver of Rules
The FCC may, on its own motion or in response to a petition, waive or suspend its own rules or
regulations “for good cause shown.” The Commission has waived several rules relating to USF programs
on its own motion. For example, the FCC waived a number of requirements for participants in its Rural
Health Care program, finding that “the scale of the current public health emergency, the extensive
disruption to health care providers throughout the country, and the enhanced need for telehealth and
telemedicine services caused by COVID-19” justifies waivers of its rules. On top of waiving USF
program requirements, the FCC has waived several regulations that might otherwise affect connectivity.
Notably, the Commission waived its rules preventing access arbitrage (or “traffic-pumping”) as applied to
a telephone company that provides service for the conference calling platforms Zoom and WebEx. The
Commission has also extended deadlines for spectrum licensees and postponed an upcoming spectrum
auction. Table 1 lists, by USF program, a selection of rules waived in response to the COVID-19
outbreak. For more information on how COVID-19 has affected USF programs, see CRS In Focus
IF11520, The Universal Service Fund and COVID-19: The FCC and Industry Response, by Angele A.
Gilroy.

Congressional Research Service
3
Table 1. Orders Waiving USF Rules and Regulations in Response to COVID-19
Program Affected
FCC Action
Rural Health Care
Multiple deadlines waived or extended for 2020; requirements for “evergreen”
contract extensions waived for 2020
Universal Service Fund
Service area restrictions for mobile wireless providers waived (allowing carriers
who receive funding to use funds outside a designated geographic area)
Lifeline
Usage requirements, de-enrollment procedures, recertification, and reverification
rules waived; involuntary de-enrollment suspended
E-Rate
Filing and service implementation deadlines waived; participants granted automatic
30-day extension for information requests
E-Rate and Rural Health Care
Gift rules waived
Lifeline
Income qualification rules waived
Source: CRS analysis of orders posted to https://www.fcc.gov/.
Note: The most current list of FCC actions taken in response to COVID-19 is available at
https://www.fcc.gov/coronavirus.
Disbursement of CARES Act Funds
The Coronavirus Aid, Relief, and Economic Security Act provides the Commission with $200 million “to
address coronavirus by providing telecommunications services, information services, and devices
necessary to enable the provision of telehealth services during an emergency period.” On April 2, 2020,
the FCC released an order establishing a COVID-19 telehealth program to provide “funding for
telecommunications services, information services, and devices necessary to enable the provision of
telehealth services.” Recognizing the urgency of the COVID-19 outbreak, the Commission directed its
Wireline Competition Bureau to review applications and award funds “as rapidly as possible on a rolling
basis.” Under the Commission’s order, funds will be available “until they are expended or until the
current pandemic has ended.” To date, the FCC has provided more than $50 million to 82 healthcare
providers.
Common Criticism and Potential Limits of the FCC’s Approach
The FCC’s response to COVID-19 has not been without critics, who argue that the agency can and should
go further to meet current connectivity needs. FCC Commissioner Jessica Rosenworcel has advocated for
permitting schools and libraries to use E-Rate funds to purchase Wi-Fi hotspots for students without home
internet access. A group of senators has echoed this idea. The Telecommunications Act provides that
telecommunications providers shall provide services “to elementary schools, secondary schools, and
libraries for educational purposes.” The FCC has issued guidance clarifying that schools and libraries may
leave their wireless networks on for community use, though the guidance is limited to use of the networks
“while on the school’s campus or library property.” Library parking lots have consequently drawn traffic
from families without home internet access.
Commissioner Rosenworcel is not the first to suggest that E-Rate funds also should be used to support
off-site educational activities. Interested entities have petitioned the Commission to allow the use of E-
Rate funds for these purposes, so the Commission may have an opportunity to clarify whether using E-
Rate funds to support off-site activity is permissible. Indeed, in another context, the Commission has
interpreted its authority to extend beyond the physical locations of supported facilities: the Connected
Care Pilot Program provides funding for health care providers to use on patient internet access outside of
the provider’s facilities.

Congressional Research Service
4
Further, while a number of internet providers have taken the Commission’s Keep Americans Connected
Pledge—which promises, among other things, that a provider will not disconnect internet service due to a
customer’s inability to pay—taking the pledge is voluntary. In a 2018 order, the FCC classified broadband
service as an “information service” subject to light regulation. Thus, the Commission may lack authority
to compel any action from broadband providers. The U.S. Court of Appeals for the D.C. Circuit largely
upheld the Commission’s order, but remanded the matter to the FCC for further consideration of three
issues, one of which was the order’s effect on public safety. The Commission originally sought comment
no later than March 30, but because of COVID-19 extended the deadline by 21 days.
Considerations for Congress
Criticism of the FCC’s response to COVID-19 highlights several areas in which Congress could clarify
the Commission’s power. Whether E-Rate funds may support off-site educational activities, for example,
is ambiguous from the statutory provision authorizing the E-Rate program. The Telecommunications Act
directs the FCC to support “elementary schools, secondary schools, and libraries,” but does not specify
where supported activities may occur. FCC Chairman Ajit Pai has previously stated that E-Rate funds
may not be used for home devices under the Communications Act as currently written.
Another candidate for potential congressional clarification is the Commission’s classification of
broadband service as an “information service.” The FCC’s authorizing statute does not
consistently define or classify broadband access. By amending the Communications Act to
include a classification of broadband access as either an information service or a
telecommunications service, or by subjecting broadband service to specific regulation, Congress
could resolve any ambiguity regarding the regulatory treatment to which broadband is subject
and clarify the scope of the Commission’s authority over broadband. However, an explicit
statutory definition and classification of broadband may also prevent the Commission from
adapting its regulatory position to future economic and technological changes.

Author Information

Eric N. Holmes

Legislative Attorney

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,

Congressional Research Service
5
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10475 · VERSION 1 · NEW