LegiStorm

Summary:
Highlights

GAO reviewed the Federal Communications Commission's (Commission) new rule entitled "Affordable Connectivity Program; Emergency Broadband Benefit Program." GAO found that the final rule adopts regulations for the Affordable Connectivity Program established by Congress in the Infrastructure Investment and Jobs Act.

Enclosed is our assessment of the Commission's compliance with the procedural steps required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule. If you have any questions about this report or wish to contact GAO officials responsible for the evaluation work relating to the subject matter of the rule, please contact Shari Brewster, Assistant General Counsel, at (202) 512-6398.





View Decision

B-334034

February 24, 2022

The Honorable Maria Cantwell
Chairwoman
The Honorable Roger F. Wicker
Ranking Member
Committee on Commerce, Science, and Transportation
United States Senate

The Honorable Frank Pallone, Jr.
Chairman
The Honorable Cathy McMorris Rodgers
Republican Leader
Committee on Energy and Commerce
House of Representatives

Subject:  Federal Communications Commission: Affordable Connectivity Program; Emergency Broadband Benefit Program

Pursuant to section 801(a)(2)(A) of title 5, United States Code, this is our report on a major rule promulgated by the Federal Communications Commission (Commission) entitled ?Affordable Connectivity Program; Emergency Broadband Benefit Program? (FCC 22-2).  We received the rule on February 11, 2022.  It was published in the Federal Register as a final rule on February 14, 2022.  87 Fed. Reg. 8346.  The effective date is March 16, 2022, except for 47 C.F.R. §§ 54.1802(b), 54.1804, 54.1807(b), 54.1808(c)(1) and (2), 54.1809(c), and 54.1810(a) and (b), which are effective April 15, 2022.

According to the Commission, this final rule adopts regulations for the Affordable Connectivity Program established by Congress in the Infrastructure Investment and Jobs Act.  See generally Pub. L. No. 117?58, § 60502, 135 Stat. 429, 1228?1245 (Nov. 15, 2021), 47 U.S.C. § 1752.  The Commission stated that the Affordable Connectivity Program is designed to make broadband service and connected devices available to eligible low-income households at affordable, discounted prices from providers that opt to participate in the program.  The Commission also stated that the rules adopted address, inter alia, the eligibility criteria for broadband service providers that opt to participate in the program, eligibility criteria for households that seek benefits, the types of broadband services and connected devices that will be covered, the amounts of reimbursements available to providers, claims procedures, consumer protection requirements, and reporting, auditing, enforcement, and related matters.

The Congressional Review Act (CRA) requires a 60-day delay in the effective date of a major rule from the date of publication in the Federal Register or receipt of the rule by Congress, whichever is later.  5 U.S.C. § 801(a)(3)(A).  The 60-day delay in effective date can be waived, however, if the agency finds for good cause that delay is impracticable, unnecessary, or contrary to the public interest, and the agency incorporates a statement of the findings and its reasons in the rule issued.  5 U.S.C. §§ 553(b)(3)(B), 808(2).  The Commission asserts that because Congress exempted this rulemaking, in most respects, from the notice and comment provisions of the Administrative Procedure Act (APA), 5 U.S.C. § 553(b), it has reasoned that notice and public procedure under the APA would be impracticable, unnecessary, or contrary to the public interest.  See generally 47 U.S.C. § 1752(h)(1).  The Commission also asserts that the exemption from APA?s requirement that rules cannot become effective until 30 days after publication in the Federal Register, 5 U.S.C.§ 553(d), demonstrates congressional intent that the rules the Commission adopts shall become effective without delay.  In addition, the Commission stated that it found good cause, to the extent necessary, to adopt these rules without notice and public procedure because implementing the rest of the program without these statutorily mandated consumer protections would undermine the overall scheme.  Accordingly, the Commission stated further that it found for good cause that notice and public procedure for this final rule would be impracticable, unnecessary, or contrary to the public interest, and, therefore, the rules promulgated in the final rule will become effective upon the dates specified in the rule pursuant to 5 U.S.C. § 808(2).

Enclosed is our assessment of the Commission?s compliance with the procedural steps required by section 801(a)(1)(B)(i) through (iv) of title 5 with respect to the rule.  If you have any questions about this report or wish to contact GAO officials responsible for the evaluation work relating to the subject matter of the rule, please contact Shari Brewster, Assistant General Counsel, at (202) 512-6398.


Shirley A. Jones
Managing Associate General Counsel

Enclosure

cc: Trent Harkrader
Deputy Bureau Chief
Wireline Competition Bureau

ENCLOSURE

REPORT UNDER 5 U.S.C. § 801(a)(2)(A) ON A MAJOR RULE
ISSUED BY THE
FEDERAL COMMUNICATIONS COMMISSION
ENTITLED
?AFFORDABLE CONNECTIVITY PROGRAM;
EMERGENCY BROADBAND BENEFIT PROGRAM?
(FCC 22-2)

(i) Cost-benefit analysis

In its submission to us, the Federal Communications Commission (Commission) indicated that it did not prepare an analysis of the costs and benefits of this final rule. 

(ii) Agency actions relevant to the Regulatory Flexibility Act (RFA), 5 U.S.C. §§ 603?605, 607, and 609

The Commission asserts that a Final Regulatory Flexibility Analysis is not required for this final rule because it is generally not subject to 5 U.S.C. § 553, and the Commission found good cause to waive the notice and comment procedures in 5 U.S.C. § 553(b), to the extent necessary. 

(iii) Agency actions relevant to sections 202?205 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. §§ 1532?1535

As an independent regulatory agency, the Commission is not subject to the Act. 

(iv) Other relevant information or requirements under acts and executive orders

Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.

The Commission states that section 1752(b)(11) of title 47, United States Code, directs the Commission to provide notice and comment, in accordance with the Administrative Procedure Act (APA), before it promulgates rules to protect consumers.  The Commission published a notice in the Federal Register on December 29, 2021.  86 Fed. Reg. 74036.  The Commission stated that the notice contains the information specified in section 5 U.S.C. §§ 553(b)(1)?(3), including detailed questions about the particular inappropriate practices referenced in 47 U.S.C. § 1752(b)(11).  In any event, the Commission stated that it found good cause, to the extent necessary, to adopt this final rule without further notice and public procedure for consumer protection rules because the Infrastructure Investment and Jobs Act required the Commission to: commence the rulemaking to implement the Affordable Connectivity Program within five days of the enactment of the Act; adopt program rules within 60 days; and because section 1752(b)(11) and the other components of the program are inextricably intertwined.[1]  See generally Pub. L. No. 117?58, § 60502, 135 Stat. 429, 1228?1245 (Nov. 15, 2021), 47 U.S.C. § 1752.  The Commission stated that placing the consumer protection rules on a delayed track would be impracticable, unnecessary, or contrary to the public interest, as the rules are among the core components of the program, and allowing the rest of the program to take effect without having the statutorily-mandated consumer protections in place at the outset would undermine the overall scheme. 

Paperwork Reduction Act (PRA), 44 U.S.C. §§ 3501?3520

The Commission stated that the collection of information sponsored or conducted in this final rule is deemed not to constitute a collection of information for the purposes of PRA.

Statutory authorization for the rule

The Commission promulgated this final rule pursuant to sections 151, 154, 155, 201, 205, 214, 219, 220, 229, 254, 303, 403, 1004, 1302, 1601?1609, and 1752 of title 47, United States Code.

Executive Order No. 12866 (Regulatory Planning and Review)

As an independent regulatory agency, the Commission is not subject to the Order. 

Executive Order No. 13132 (Federalism)

As an independent regulatory agency, the Commission is not subject to the Order. 




[1] Section 1752(h) of title 47, United States Code, provides an exemption from APA requirements for regulations promulgated under 47 U.S.C. § 1752(c).  The Commission asserts that there is no irreconcilable conflict between sections 1752(b)(11) and 1752(h) and that, read together, it believes that the notice and comment process it has provided, in accordance with 47 U.S.C. § 1752(c), is sufficient to satisfy APA requirements.





Downloads





Full Report (4 pages)