NaLA Files Emergency Stay Petition for MSS Increase
The National Lifeline Association and Assist Wireless filed an emergency stay petition Monday asking the FCC to freeze the Lifeline minimum service standard at 3 GB within seven days. “It is a precursor to going to a federal court for such relief, if necessary,” emailed John Heitmann of Kelley Drye, who represents NaLA. Without the stay or the waiver NaLA previously sought, the MSS will automatically rise to 11.75 GB Dec. 1, triggering a “one-year death spiral” for the entire lifeline industry, the stay petition said. FCC Chairman Ajit Pai withdrew a proposal weeks ago (see 2011020065) that would have made the 2020 MSS 4.5 GB because it wouldn't receive sufficient votes.
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NaLA said its petition is likely to prevail on the merits because it's arbitrary for the FCC to waive a similar automatic increase in 2019 but not in 2020, because the increase is inconsistent with the agency’s actions to address the COVID-19 pandemic and because the increase would lead to a “defacto co-pay” the agency hasn’t justified. NaLA also attacks the rule -- approved by the previous FCC -- that created the automatic increase to the MSS for requiring the FCC to create a report studying the state of the Lifeline market. The report requirement “demonstrates that the Commission failed to consider important aspects of the digital divide problem before setting the mobile broadband MSS in motion,” NaLA said. The FCC didn’t comment.
Lifeline providers and public interest groups said the FCC should freeze the MSS until that report can inform the agency’s decision-making. “The FCC can continue to provide certainty to millions of low-income Americans who are relying upon Lifeline-supported mobile wireless services by pausing" the MSS increases "until it completes its State of Lifeline Report,” emailed Matt Gerst, CTIA vice president-regulatory affairs.
The stay petition said it could be a vehicle for the FCC to act on the MSS, but NaLA already has a pending petition seeking a waiver that has gone through the comment process. Asked if the election was a factor in filing the stay petition on top of the earlier one, Heitmann said “different options may be more appealing to decision makers at different times.” The stay “is one thing we hadn’t yet tried and given we are within 30 days of the December 1 effective date for the new 11.75 GB mobile broadband MSS we felt it was time to ask for emergency relief.”
The harm a stay would prevent “is both certain and great,” said the petition. The higher data requirements will mean providers must require copays, the petition said. “Because consumers cannot afford these plans foisted upon the marketplace by government fiat rather than consumer demand, Lifeline broadband subscribership will plummet.” Remaining subscribers will likely transition to voice, but support for Lifeline voice services is set to be eliminated by Dec. 1, 2021, the petition said. If the increase proceeds, “NaLA member Lifeline service providers will be out of the federal Lifeline business on or before that date,” it said.
An industry attorney said it's not clear how the FCC will respond to the stay request. Previous comments from Pai and the FCC on the stalled 4.5 GB order appeared to pin blame for the looming automatic increase on the FCC commissioners who didn’t support the stalled order -- Jessica Rosenworcel, Geoffrey Starks and Pai’s fellow Republican Mike O’Rielly. “We have asked the FCC to rule within 7 days. If we do not receive the requested relief, we plan to immediately seek relief from a federal court of appeals,” said Heitmann.