COVID-19 Legislation Creates Big Job for FCC Starting in Last Month of Pai Chairmanship
The FCC will be under the gun as soon as the omnibus COVID-19 legislation (HR-133) takes effect, if it's signed by President Donald Trump. Trump suggested he may veto the bill and seek changes, though industry experts said it’s not clear whether he will follow through on that threat. Among the deadlines in the legislation is an unusually quick turnaround for telehealth grants. FCC officials said work on implementing the bill will have to start under Chairman Ajit Pai and continue after Jan. 20, when Joe Biden becomes president.
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The FCC demonstrated with March's Coronavirus Aid, Relief and Economic Security (Cares) Act telehealth program that “it is capable of ramping up a grant program very quickly,” said John Windhausen, executive director of the Schools, Health & Libraries Broadband Coalition. “That program went fairly well, although it could have been more transparent,” he said: “Congress has given the FCC much more funding in this COVID relief bill, so it will be a significant challenge. The commission may have to delay some other proceedings to get this funding out the door, but nothing could be more important than helping Americans deal with this health crisis."
For telehealth, the law requires the FCC to issue a public notice establishing a 10-day period “during which the Commission will seek comments on -- (i) the metrics the Commission should use to evaluate applications for funding under this section; and (ii) how the Commission should treat applications filed during the funding rounds for awards from the COVID-19 Telehealth Program using amounts appropriated under the CARES Act.” The FCC didn't comment.
“This is likely to be messy,” said Doug Brake, Information Technology and Innovation Foundation director-broadband and spectrum policy. The timelines will be “difficult with the transition,” he said: “Tight comment periods that, if my math is right, will necessarily span the transition, with what looks to likely be a deadlocked commission on the other side.”
“There is a lot in that stimulus bill ... for the FCC to do and quickly,” emailed NARUC General Counsel Brad Ramsay. “I’m sure the agency will be gearing up -- but legally, it can’t really do anything until President Trump signs the bill or Congress overrides an actual veto assuming they get the chance."
“The legislation mandates an aggressive timeline for the FCC to get its work done” and is “reminiscent” of some parts of the 1996 Telecom Act and DTV transition, said Cooley’s Robert McDowell. “With the digital TV transition, many key aspects of the plan were not ready for implementation in time for the first transition deadline, which was in February of 2009,” he noted: “The new Congress had to rush to extend that deadline to June. So with COVID possibly impairing some of the FCC’s productivity, Congress may need to extend some of the deadlines, but time will tell.”
“We agree it will be challenging to address all the issues, but there seems to be bipartisan agreement on the importance of securing networks, mapping, and closing the digital divide in rural America,” emailed Competitive Carriers Association President Steve Berry. “There is much to be done in the months ahead, and CCA members are highly motivated to work with the FCC to implement provisions outlined by Congress.”
Industry on Board
“We have avoided a government shutdown, so no loss of time there,” said Rural Wireless Association General Counsel Carri Bennet. FCC staff is working remotely, “avoiding commutes and traffic, which buys more time in the day,” and no one can take a real vacation, she said. “The FCC will be able to get the job done,” she said: “The private sector is on standby to support the FCC in its work.”
“The biggest procedural hurdle is going to be getting the new emergency broadband benefit up and running,” emailed Angelina Panettieri, National League of Cities legislative director-information technology and communications. The bill requires the FCC to make rules in 60 days, including 20 days for comments and another 20 for replies, she said. “I am sure the staff are already working frantically to meet those deadlines.”
The timeline extends beyond the inauguration and Pai’s departure, so Panettieri expects final rules to be made by a 2-2 FCC under a new chair, she said. “Because Congress waited so long on this package, a lot of work is going to have to happen as the baton is being passed between administrations. Even more work will have to be done afterwards at the community level to ensure that eligible households are enrolled and able to fully access the benefit.”
Most broadband funding goes to existing programs, but the FCC would have to implement broadband subsidies to low-income people, emailed GrayRobinson local telecom attorney Gary Resnick. “That will likely not happen by Inauguration Day,” but rather by a split commission under a Democratic chair, he said. Uncertainty remains with Trump blasting Congress about the stimulus bill, he said: “Who knows if or when it will become law or what changes will be made.”
Trump called the current HR-133 a “disgrace” that’s full of “wasteful and unnecessary items” and asked Congress to amend it to include larger stimulus payments to qualifying citizens. Both chambers passed HR-133 by margins far larger than needed to overcome a presidential veto. Congressional Democrats quickly backed Trump’s call for amendments to the measure. House Speaker Nancy Pelosi, D-Calif., set a Monday vote on legislation to increase the stimulus payments after Republicans blocked her Thursday bid to do it via unanimous consent. Republicans are reluctant to back larger payments and are pushing Trump to sign the existing omnibus.