NaLA to Take FCC to Court Over Lifeline MSS Order
The National Lifeline Association plans to take the FCC to court over Monday’s Lifeline minimum service standard order from the Wireline Bureau (see 2011160056), emailed NaLA attorney John Heitmann of Kelley Drye. “That T-Mobile evidently was persuaded by the Chairman’s office to commit to providing 4.5 GB for free to its Assurance-branded retail Lifeline customers” is “inadequate” justification for an MSS requirement “that will leave wireless resellers and their customers in a position where co-pays will be imposed on consumers who cannot afford them,” Heitmann said. “NaLA intends to seek relief soon from the D.C. Circuit.”
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Since T-Mobile sells spectrum to Lifeline providers, its Assurance-branded Lifeline provider being able to afford a 4.5 GB monthly MSS has little bearing on whether other Lifeline providers can, Heitmann said. “It looks like the largest Lifeline player (31% of retail lines and 90% of wholesale lines) has supplied the Chairman’s office” with a reason to ignore otherwise industrywide calls for the MSS to be frozen at 3 GB, Heitmann said.
T-Mobile didn’t comment. An FCC spokesperson asked about Heitmann's statement pointed to an example described in the order, where Q Link Wireless argued a previous MSS increase would have forced providers to charge a copay, but that never happened. "The argument that a moderate increase will result in ruin has not aged well," the order said.
Monday’s order said the Lifeline providers haven’t provided sufficient evidence that the 4.5 GB MSS will harm the industry, and it represents a reasonable increase compared with the automatic increase to 11.75 GB a month that had been set to take effect Dec. 1. “Such an increase would have imperiled, at a particularly inopportune time, the ability of some Lifeline providers to continue to make available service to low-income persons,” emailed Free State Foundation President Randolph May. “Gradualism was called for in light of all the circumstances, and I’m pleased that the Commission took that approach.”
While less than 11.75 GB, the increase to 4.5 GB remains “an existential threat” to the Lifeline industry, said attorney Judson Hill, who represents Lifeline provider TruConnect. The result will be “little to no broadband access for the majority of Lifeline subscribers who will be converted from ‘free’ 3 GB plans to ‘free’ 1,000 minute voice plans with little or no data,” Heitmann said. Hill said the increase to 4.5 GB will likely be easier for the FCC to defend in court than the 11.75 GB jump. United Church of Christ attorney Cheryl Leanza compared the situation to someone being told to jump 20 feet high instead of 100 feet: “It’s still equally impossible.”