prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 1.

Report 1: Disclosure provisions that require commercial actors to convey specified information to consumers occupy an uneasy and shifting space in First Amendment jurisprudence  The First Amendment's Free Speech Clause protects the right to speak as well as the right not to speak, and at least outside the context of commercial speech, courts generally disfavor any government action that compels speech  Indeed, the Supreme Court in 1943 described the First Amendment's protection against compelled speech as a "fixed star in our constitutional constellation " Accordingly, government actions mandating speech are generally subject to strict scrutiny by courts, and will be upheld "only if the government proves that they are narrowly tailored to serve compelling state interests " However, the Court has also long accepted a variety of laws that require commercial actors to make certain disclosures to consumers, confirming that Congress can compel certain disclosures, even those involving protected speech, without running afoul of the First Amendment  Commercial disclosure requirements have largely withstood constitutional scrutiny in part because, historically, commercial speech has received less protection under the First Amendment than other speech  The government's ability to more freely regulate commercial speech has been linked to its general authority "to regulate commercial transactions " Thus, notwithstanding the fact that commercial disclosure requirements compel speech, courts generally have not analyzed such provisions under the strict scrutiny standard  Instead, courts have often employed less rigorous standards to evaluate such provisions  The precise nature of a court's First Amendment analysis, however, will depend on the character of the disclosure requirement at issue  In a recent decision, the Supreme Court distilled and explained its prior cases on this subject  First, the Court said that it has upheld some commercial disclosure requirements that target conduct and only incidentally burden speech  This rubric likely only applies if the disclosure provision is part of a larger scheme regulating commercial conduct  If the disclosure provision instead regulates "speech as speech," it might be subject either to intermediate scrutiny, as a government regulation of commercial speech, or to something closer to rational basis review, if the disclosure provision qualifies for review under the Supreme Court's decision in Zauderer v  Office of Disciplinary Counsel   Some of the Court's recent cases, however, have suggested that in certain circumstances, disclosure requirements may be subject to heightened scrutiny  This report begins with a short background on how courts generally view commercial speech under the First Amendment, then reviews in more detail the possible legal frameworks for analyzing the constitutionality of commercial disclosure requirements  Supreme Court precedent explaining the application of the First Amendment to commercial disclosure requirements is relatively recent  The Court did not squarely hold that purely commercial speech was entitled to any protection under the First Amendment until 1976 in Virginia State Board of Pharmacy v  Virginia Citizens Consumer Council   The Court has defined commercial speech alternately as speech that "does 'no more than propose a commercial transaction'" and as "expression related solely to the economic interests of the speaker and its audience " In Virginia Board of Pharmacy , the Court said that commercial speech was protected, but it also emphasized that the First Amendment did not prohibit all regulations of such speech  In particular, the Court said that it foresaw "no obstacle" to government regulation of "false" speech, or even of commercial speech that is only "deceptive or misleading " In subsequent cases, the Court has explained why "regulation to assure truthfulness" is more readily allowed in the context of commercial speech, as compared with other types of speech  While the First Amendment usually protects even untruthful speech, in order to better encourage uninhibited and robust debate, the Court has recognized that regulating "for truthfulness" in the commercial arena is unlikely to "undesirably inhibit spontaneity" because commercial speech is generally less likely to be spontaneous  Instead, it is more calculated, motivated by a "commercial interest " In particular, if a particular advertisement concerns a subject in which "the public lacks sophistication" and cannot verify the claims, the Court has suggested that the government may have a freer hand to address such concerns  Four years after Virginia Board of Pharmacy , in 1980, the Supreme Court set out the standard that generally governs a court's analysis of government restrictions on commercial speech in Central Hudson Gas & Electric Corp  v  Public Service Commission   The Court first explained that commercial speech enjoys "lesser protection" than "other constitutionally guaranteed expression " After emphasizing that First Amendment protection for commercial speech "is based on the informational function of advertising," the Court said that "there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity " Accordingly, the Court held that the government may prohibit "forms of communication more likely to deceive the public than to inform it" as well as "commercial speech related to illegal activity " But if the regulated "communication is neither misleading nor related to unlawful activity," the government's action is subject to intermediate scrutiny  Under Central Hudson 's intermediate standard, the government must prove that the government's interest is "substantial," and that the regulation "directly advances" that interest and is "not more extensive than is necessary to serve that interest " The Central Hudson test continues to govern the constitutional analysis of government acts that infringe on commercial speech  However, in certain circumstances, commercial speech may lose its commercial character if "it is inextricably intertwined with otherwise fully protected speech " And more generally, some members of the Supreme Court have questioned whether commercial speech should categorically receive less protection under the First Amendment, suggesting that in at least some circumstances, infringements on commercial speech should instead be subject to strict scrutiny  Commentators have pointed out that, as a practical matter, Supreme Court decisions have increasingly struck down, rather than upheld, restrictions on commercial speech  Also relevant to the discussion of disclosure requirements, judges and legal scholars have noted that the Court may be adjusting the role of the content neutrality doctrine with respect to commercial speech  As a general matter, if a law is "content-based," in the sense that it "target[s] speech based on its communicative content," it will be subject to strict scrutiny  The Supreme Court stated in Reed v  Town of Gilbert that a regulation is content-based if it "applies to particular speech because of the topic discussed or the idea or message expressed," if it "cannot be 'justified without reference to the content of the regulated speech,'" or if it was "adopted by the government 'because of disagreement with the message [the speech] conveys '" Disclosure requirements are generally considered content-based, given that they require regulated parties to speak a certain message, and outside the commercial context, ordinarily trigger the application of strict scrutiny  In Central Hudson , however, the Supreme Court explained that in the context of commercial speech, "regulation of its content" is permissible  And, as commentators have pointed out, "the very category of commercial speech is a content-based category " Nonetheless, the Court has struck down certain regulations that prohibit commercial speech solely because its content is commercial, suggesting that content neutrality might be relevant in the commercial sphere  In its 2011 decision in Sorrell v  IMS Health, Inc  , the Supreme Court considered the constitutionality of a state law prohibiting pharmacies from disclosing certain pharmacy records for marketing purposes  After observing that the law included "content- and speaker-based restrictions on the sale, disclosure, and use of" covered information, the Court concluded that the law was "designed to impose a specific, content-based burden on protected expression" because it applied specifically to marketing, a particular type of speech  Consequently, the law was subject to "heightened judicial scrutiny," notwithstanding the fact that the "burdened speech result[ed] from an economic motive" and was therefore commercial  Ultimately, however, the Court declined to say definitively whether Central Hudson or "a stricter form of judicial scrutiny" should apply because, in the Court's view, the law failed to pass constitutional muster even under Central Hudson   As discussed in more detail below, the shifting role of content neutrality in commercial speech doctrine holds special significance for commercial disclosure requirements: these requirements are content-based because they "compel[] individuals to speak a particular message " At least one legal scholar has suggested that lower courts have read Sorrell as an expression of the Supreme Court's increasing skepticism toward restrictions on commercial speech and, since that decision, have been more likely to strike down commercial disclosure requirements  However, the Court did not expressly limit the reach of Central Hudson in Sorrell or in subsequent cases, suggesting that, at least for now, Central Hudson 's standard of review applies even when a challenged action would otherwise trigger strict scrutiny as a content-based regulation of speech  Indeed, lower courts analyzing commercial disclosure requirements usually ask whether Zauderer or Central Hudson supplies the appropriate standard of review, contemplating at most only intermediate scrutiny —even in cases decided after Sorrell   In its First Amendment jurisprudence, the Supreme Court has generally distinguished between laws that regulate conduct and laws that regulate speech  The Court has held that conduct-focused regulations will not violate the First Amendment by merely incidentally burdening speech  For instance, while the government may regulate prices, attempts to regulate "the communication of prices" implicate the First Amendment  To take another example, the Court has noted that pursuant to "a ban on race-based hiring," a regulation "directed at commerce or conduct," the government "may require employers to remove 'White Applicants Only' signs " To differentiate a regulation targeting conduct from one targeting speech, the Court generally looks to the purpose of the law, asking whether the law appears to target certain content or certain speakers  As part of this inquiry, the Court may also ask whether a regulation applies because of the communicative content of the regulated party's actions  This distinction between speech and conduct is especially significant in the context of commercial speech, given that such speech "occurs in an area traditionally subject to government regulation " Thus, in 1978, the Supreme Court said: "[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed " Numerous examples could be cited of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, corporate proxy statements, the exchange of price and production information among competitors, and employers' threats of retaliation for the labor activities of employees  Each of these examples illustrates that the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity  The Court has previously "upheld regulations of professional conduct that incidentally burden speech " For example, the Court upheld an informed consent requirement in Planned Parenthood of S outheastern Pennsylvania v  Casey   The Casey challengers argued that a law requiring doctors to inform patients seeking abortions about "the nature of the procedure, the health risks of the abortion and of childbirth, and the probable gestational age of the unborn child" compelled doctors to speak in violation of the First Amendment  The Court rejected that argument, concluding that while "the physician's First Amendment rights not to speak are implicated," this was "only as part of the practice of medicine, subject to reasonable licensing and regulation by the State " In National Institute of Family and Life Advocates (NIFLA) v  Becerra , the Supreme Court emphasized that the informed consent requirement upheld in Casey was part of the broader regulation of professional conduct: specifically, the practice of medicine  By contrast, the Court held that the disclosure requirement at issue in NIFLA , which required certain health facilities to provide clients with information about state-sponsored services, could not be upheld as "an informed-consent requirement or any other regulation of professional conduct" because it was not tied to any medical procedure  Instead, in the Court's view, the requirement "regulate[d] speech as speech," as opposed to regulating speech only incidentally  While the Court has made clear that the First Amendment does not prohibit such incidental regulation of commercial speech, it has not articulated one overarching standard for evaluating whether such provisions are constitutionally permissible  Its decisions in this area have considered a wide variety of government actions incidentally burdening speech, and it may be that the standard varies according to the nature of the particular speech restriction evaluated  In some cases, the Court has suggested that "the First Amendment is not implicated by the enforcement" of a broader regulatory scheme where the regulated conduct does not have "a significant expressive element" or the statute does not inevitably single out "those engaged in expressive activity " In other cases where the Court has upheld a regulation that it characterized as focused on conduct rather than speech, the Court investigated the strength of the government's interest and asked whether the regulation advances that interest, suggesting that the Court subjected the regulation to some First Amendment scrutiny—albeit using a relatively relaxed standard  The Court has never explicitly held that a commercial disclosure requirement qualifies as a constitutionally permissible incidental restriction on commercial speech  While Planned Parenthood of Southeastern Pennsylvania v  Casey did involve a disclosure requirement, the Court did not address whether the informed consent requirement involved commercial or noncommercial speech either in Casey or when discussing that requirement in NIFLA   In NIFLA , the Court held that a state law imposing disclosure requirements on clinics providing pregnancy-related services could not be characterized as a regulation that only incidentally burdened speech because the requirement was not tied to any specific medical procedures  However, the Court never expressly stated whether it considered the disclosures to consist of commercial or noncommercial speech  Similarly, in Expressions Hair Design v  Schneiderman , the Court rejected the application of this doctrine without expressly characterizing the government action as a commercial disclosure requirement  In that case, the Court considered the constitutionality of a state law prohibiting sellers from imposing surcharges on customers who use credit cards  The Supreme Court rejected the argument that this law primarily "regulated conduct, not speech," concluding that the law did not merely regulate pricing, but regulated the communication of prices by prohibiting merchants from posting a cash price and an additional credit card surcharge  The Court then remanded the case to the lower courts to consider the First Amendment challenges in the first instance, leaving open the question of whether the provision could be characterized as a requirement for sellers to disclose an item's credit card price, rather than as a prohibition of certain speech  As these cases suggest, the Court has seemed reluctant in recent years to uphold government actions as conduct-focused regulations that merely incidentally burden speech, especially in the context of compelled disclosure requirements  Instead, the Court has distinguished the few cases upholding government acts as incidental restrictions and subjected disclosure requirements to further scrutiny  Nonetheless, the Court has left open the possibility that commercial disclosure requirements might, in the future, qualify as permissible incidental speech regulation, if they are part of a broader regulatory scheme  If the government regulates "speech as speech," its actions will implicate the First Amendment's protections for freedom of speech and may trigger heightened standards of scrutiny  However, the First Amendment does not prescribe a single analysis for all government actions that potentially infringe on free speech protections  Instead, a court's review will depend on the nature of both the government action and the speech itself  This section first introduces the three possible levels of scrutiny a court might use to analyze a speech regulation and then explains their application to compelled commercial disclosures in more detail  In the context of commercial disclosure requirements, there are three primary categories of First Amendment analysis that may be relevant  First, as a general rule, government actions that compel speech are usually subject to strict scrutiny  To survive strict scrutiny, the government must show that the challenged action is "narrowly tailored to serve compelling state interests " Laws are unlikely to meet this "stringent standard " Second, as discussed above, government actions regulating commercial speech generally receive only intermediate scrutiny  The intermediate scrutiny standard, pursuant to Central Hudson , requires a "substantial" state interest and requires the government to prove that the law "directly advances" that interest and "is not more extensive than is necessary to serve that interest " This standard is less demanding than strict scrutiny, but laws may still be struck down under this test  The final and most lenient category—one specific to commercial disclosure requirements—comes from a 1985 case, Zauderer v  Office of Disciplinary Counsel   In that case, the Supreme Court considered the constitutionality of state disciplinary rules regulating attorney advertising  As relevant here, the rules required advertisements referring to contingent-fee rates to disclose how the fee would be calculated  An attorney who had been disciplined by the state for violating these provisions argued that this disclosure requirement was unconstitutional because the state failed to meet the standards set out in Central Hudson   The Court acknowledged that it had previously held that prohibitions on commercial speech were subject to heightened scrutiny under Central Hudson , and that it had "held that in some instances compulsion to speak may be as violative of the First Amendment as prohibitions on speech " "But," the Court said, "[t]he interests at stake in this case are not of the same order as those" implicated in cases involving the compulsion of noncommercial speech  Instead, the Court noted that the state's provision only involved "commercial advertising, and its prescription has taken the form of a requirement that appellant include in his advertising purely factual and uncontroversial information about the terms under which his services will be available " In this commercial context, the Court said that the attorney's "constitutionally protected interest in not providing any particular factual information in his advertising is minimal," noting that in previous cases it had stated that states might "appropriately require[]" warnings or disclaimers "in order to dissipate the possibility of consumer confusion or deception " Rather than applying heightened scrutiny, the Court held that under these circumstances, "an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers " The Zauderer Court did warn, however, that commercial disclosure requirements raise First Amendment concerns, observing that "unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech " But the Court rejected the contention that the disclosure requirement before it was unduly burdensome  Instead, the Court concluded that "[t]he State's position that it is deceptive to employ advertising that refers to contingent-fee arrangements without mentioning the client's liability for costs is reasonable enough to support a requirement that information regarding the client's liability for costs be disclosed " Although the state had not submitted evidence that clients were in fact being misled, the Court stated that "the possibility of deception" was "self-evident," making the state's "assumption that substantial numbers of potential clients would be       misled" regarding the terms of payment reasonable  Zauderer sets out the most lenient of the three standards of review discussed above, and, as a result, a commercial disclosure requirement is most likely to be upheld if it is reviewed under the rubric of that case  However, the Zauderer standard of review has been interpreted to apply only to certain types of disclosure requirements  As described by the Court and discussed above, the state regulation upheld in Zauderer required "purely factual and uncontroversial information about the terms under which [attorneys'] services [would] be available," and the provision was "reasonably related to the State's interest in preventing deception of consumers " Subsequent cases in both the Supreme Court and the lower courts have tested the extent to which this reasonableness review applies outside of the specific factual circumstances presented in Zauderer   The Supreme Court has decided whether to apply Zauderer review to government acts compelling commercial speech in three significant cases  First, in United States v  United Foods , decided in 2001, the Court invalidated a federal statute that compelled "handlers of fresh mushrooms to fund advertising for the product " United Foods thus involved a compelled subsidy, rather than a compelled disclosure  The Court concluded that these statutorily compelled subsidies for government-favored speech implicated the First Amendment and that "mandat[ing] support" from objecting parties was "contrary to       First Amendment principles " The Court held that Zauderer was inapplicable, noting that in the case before it, there was "no suggestion       that the mandatory assessments       are somehow necessary to make voluntary advertisements nonmisleading for consumers " By contrast, the Court applied Zauderer in a 2010 decision, Milavetz, Gallop & Milavetz, P A  v  United States , another case concerning attorney advertising  In that case, the Court considered an attorney's First Amendment challenges to a federal statute that required "debt relief agencies" to "make certain disclosures in their advertisements " "Debt relief agencies" was a statutorily defined term covering some attorneys who provided clients with bankruptcy assistance  Among other things, agencies advertising "bankruptcy assistance services or       the benefits of bankruptcy" were required to disclose that they were "a debt relief agency" that "help[ed] people file for bankruptcy relief under the Bankruptcy Code " Rejecting the challenger's contention that Central Hudson 's intermediate scrutiny governed the disclosure requirement, the Court held instead that "the less exacting scrutiny described in Zauderer " governed its review  The Court concluded that the provision "share[d] the essential features of the rule at issue in Zauderer  " The disclosure requirement was "intended to combat the problem of inherently misleading commercial advertisements—specifically, the promise of debt relief without any reference to the possibility of filing for bankruptcy, which has inherent costs " Further, the law required the covered entities to provide "only an accurate statement identifying the advertiser's legal status and the character of the assistance provided " As in Zauderer , where the "possibility of deception" was "self-evident," the Court was not troubled by the lack of evidence that current advertisements were misleading  Instead, "evidence in the congressional record demonstrating a pattern of advertisements that hold out the promise of debt relief without alerting consumers to its potential cost" was "adequate " The Court ultimately upheld the disclosure requirement as "reasonably related to the [Government's] interest in preventing deception of consumers " Most recently, in 2018, the Court considered the application of Zauderer in NIFLA   That case involved two distinct disclosure requirements imposed by California's Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), which regulated crisis pregnancy centers  First, the FACT Act required any " licensed covered facility" to notify clients that "California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women," and give the telephone number of the local social services office  Second, any " unlicensed covered facility" had to provide notice that the "facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services " The Court first held that Zauderer 's reasonableness review did not apply to the licensed notice  In the Court's view, the notice was "not limited to 'purely factual and uncontroversial information about the terms under which       services will be available '" The Court explained that the disclosure requirement "in no way relate[d] to the services that licensed clinics provide " The Court said that instead, the law "require[d] these clinics to disclose information about state -sponsored services—including abortion, anything but an 'uncontroversial' topic " The Court ultimately held that the licensed notice could not "survive even intermediate scrutiny " Turning to the unlicensed notice, the Court determined that it did not need to "decide whether the Zauderer standard applies to the unlicensed notice" because the disclosure requirement failed scrutiny even under Zauderer   The Court said that "under Zauderer , a disclosure requirement cannot be 'unjustified or unduly burdensome '" The Court interpreted this statement to require that the government prove it was seeking "to remedy a harm that is 'potentially real, not purely hypothetical '" Based on the record on appeal, the Court found that California's stated interest in "ensuring that pregnant women in California know when they are getting medical care from licensed professionals" was "purely hypothetical " Further, the Court held in the alternative that "[e]ven if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burden[ed] protected speech" by requiring a government statement to be placed in all advertisements, regardless of an advertisement's length or content  The Court also expressed concern that the unlicensed notice "target[ed]" certain speakers in imposing those burdens by focusing on "facilities that primarily provide 'pregnancy-related' services " While the Supreme Court has emphasized that Zauderer 's reasonableness review is available only for certain types of compelled commercial disclosures, lower courts have disagreed on the precise circumstances required to apply Zauderer   A few requirements have emerged in the case law  First, courts agree that to qualify for review under Zauderer , a commercial disclosure requirement must compel speech that is "factual and uncontroversial " Next, the disclosure must be related to the goods or services the speaker provides  Finally, courts have disagreed on the type of government interest that may be asserted to justify a Zauderer -eligible regulation: while Zauderer itself approved of the challenged disclosure requirement after concluding that the state was permissibly seeking to "prevent[] deception of consumers," lower courts have sometimes applied Zauderer review even where the regulation is not specifically intended to prevent deception  Before discussing the particulars of these requirements, it is worth noting that these elements are related to the Court's overarching justifications for affording the government more leeway to regulate commercial speech  The seminal Supreme Court case establishing that commercial speech is protected by the First Amendment, Virginia State Board of Pharmacy v  Virginia Citizens Consumer Council , tied commercial speech's value to its ability to inform consumers  Critically, the Court said that governments could continue to ban false or misleading commercial speech , noting in another case that "the public and private benefits from commercial speech derive from confidence in its accuracy and reliability " It was against this background that the Court in Zauderer concluded that the provision requiring the disclosure of factual information about contingent fee arrangements did not involve First Amendment interests "of the same order as those" involved in other cases involving the compulsion of noncommercial speech  Accordingly, the state acted reasonably by prescribing that attorneys had to include in their advertising "purely factual and uncontroversial information about the terms under which [their] services [would] be available " The first element for a commercial disclosure requirement to be eligible for Zauderer review is that the government regulation must require the disclosure of "factual and uncontroversial" information  The two parts of Zauderer's initial requirement are often evaluated as one, although courts have sometimes pointed out that "factual" and "uncontroversial," logically, connote two different things  Viewing the two words together, some have characterized the "factual and uncontroversial" requirement as distinguishing regulations that compel the disclosure of facts from those that compel individuals to state opinions or ideologies  As discussed, the Supreme Court has said that the value of commercial speech largely lies in its ability to inform consumers  And in Zauderer , the Court emphasized that because protection for commercial speech is justified by its informational value, the attorney challenging the disclosure requirement had a "minimal" First Amendment interest "in not providing any particular factual information in his advertising " As the Second Circuit has explained: Commercial disclosure requirements are treated differently from restrictions on commercial speech because mandated disclosure of accurate, factual, commercial information does not offend the core First Amendment values of promoting efficient exchange of information or protecting individual liberty interests  Such disclosure furthers, rather than hinders, the First Amendment goal of the discovery of truth and contributes to the efficiency of the "marketplace of ideas " Protection of the robust and free flow of accurate information is the principal First Amendment justification for protecting commercial speech, and requiring disclosure of truthful information promotes that goal  In such a case, then, less exacting scrutiny is required than where truthful, nonmisleading commercial speech is restricted  In this vein, the Supreme Court upheld disclosure requirements regarding the nature of contingent fee arrangements in Zauderer and statements clarifying the nature of the bankruptcy-related assistance provided by debt relief agencies in Milavetz 


Report 2:  Lower courts have approved as "factual and uncontroversial" within the meaning of Zauderer a variety of other commercial disclosure requirements, including regulations requiring the disclosure of: country-of-origin information for meat; calorie information at restaurants; the fact that products contain mercury; and textual and graphic warnings about the health risks of tobacco products  By contrast, in a 2015 opinion, the D C  Circuit concluded that a federal regulation requiring firms to disclose whether their products used "conflict minerals" that originated "in the Democratic Republic of the Congo or an adjoining country" could not be characterized as factual and uncontroversial  The court said that "[t]he label '[not] conflict free' is a metaphor that conveys moral responsibility for the Congo war        An issuer, including an issuer who condemns the atrocities of the Congo war in the strongest terms, may disagree with that assessment of its moral responsibility        By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment " Similarly, the Seventh Circuit, in a 2006 opinion, held that disclosure requirements in a state law regulating sexually explicit video games were not "factual and uncontroversial" as required for Zauderer to apply  In relevant part, the law required "video game retailers to place a four square-inch label with the numerals '18' on any 'sexually explicit' video game," and to post signs and provide brochures "explaining the video game rating system " The court held first that the sticker "ultimately communicates a subjective and highly controversial message—that the game's content is sexually explicit " Similarly, the panel concluded that "the message" communicated by the signs and brochures was "neither purely factual nor uncontroversial" because it was "intended to communicate that any video games in the store can be properly judged pursuant to the standards described in the       ratings " As mentioned above, some courts have treated "factual" and "uncontroversial" as two distinct requirements  But at times, courts have struggled to define "controversial," standing alone  The D C  Circuit has suggested that controversial must mean that a disclosure "communicates a message that is controversial for some reason other than dispute about simple factual accuracy " One trial court interpreting a decision of the Second Circuit suggested that "it is the nature of the regulation of compelled speech that controls, not the nature of the legislative debate that gave rise to its enactment " That court then noted that other courts had equated controversial messages with disclosures that are "opinion-based " Courts have disagreed about whether a disclosure may be characterized as "controversial" because it is "inflammatory" or "evoke[s] an emotional response " In NIFLA , the Supreme Court struck down the licensed notice after noting that the required disclosures related to "abortion, anything but an 'uncontroversial' topic," although it did not further explain when a topic is "uncontroversial" for purposes of Zauderer  Second, to be eligible for review under Zauderer , a commercial disclosure requirement must be related to the services provided by the speaker  In Zauderer itself, the Court had noted that the disputed disclosure required the attorney to provide information in his advertising "about the terms under which his services will be available " By and large, lower courts, at least prior to NIFLA, had not treated this relationship to the speaker's services as a distinct requirement  The Court in NIFLA , however, said that this was a necessary prerequisite for Zauderer review and held in that case that the notice requirement for licensed clinics at issue was not "relate[d] to the services that licensed clinics provide" because it instead provided information "about state -sponsored services " Judges have disagreed on whether there exists a third requirement for Zauderer review  In Zauderer itself, the Supreme Court noted that the disclosure requirements at issue in that case were intended to "prevent[] deception of customers " Further, when applying Zauderer review to the bankruptcy-related disclosures at issue in Milavetz , the Court stated that the disclosures were "intended to combat the problem of inherently misleading commercial advertisements " Perhaps most notably, in United Foods , the Court explained its decision not to apply Zauderer by noting that there was "no suggestion" that the compelled subsidies at issue in that case were "somehow necessary to make voluntary advertisements nonmisleading for consumers " The Supreme Court's decisions applying Zauderer have thus suggested that one factor in deciding whether to apply this "reasonably related" review is whether the targeted commercial speech is misleading, or whether the state's interest in requiring the disclosure is to prevent "consumer confusion or deception " Nonetheless, the Court has not squarely held that this is a necessary condition for Zauderer review, and several lower courts have rejected this position  The D C  Circuit concluded that Zauderer 's justification characterizing "the speaker's interest in opposing forced disclosure of such information as 'minimal' seems inherently applicable beyond" the state's "interest in remedying deception " The Second Circuit has also held that Zauderer review applies more broadly  In rejecting a litigant's argument that the Supreme Court's decision in United Foods limited Zauderer only to laws intended to prevent consumer deception, the Second Circuit said that United Foods "simply distinguishes Zauderer on the basis that the compelled speech in Zauderer was necessary to prevent deception of consumers; it does not provide that all other disclosure requirements are subject to heightened scrutiny " If a commercial disclosure requirement involves only "purely factual and uncontroversial information" about the goods or services being sold, and is therefore eligible for review under Zauderer , then it will be constitutional so long as the disclosure requirement is "reasonably related" to the government's interest  This reasonableness review is relatively lenient, especially as compared with the standards that would otherwise apply to compelled speech  But, as emphasized in NIFLA , even under Zauderer , "unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech " Lower courts had previously come to different conclusions regarding whether "unjustified or unduly burdensome" presented an additional inquiry, to be conducted separately from the reasonableness inquiry otherwise prescribed by Zauderer , or whether instead this inquiry was subsumed by the "reasonably related" inquiry  NIFLA did not entirely resolve this issue, although it did frame its analysis using the "unjustified or unduly burdensome" language rather than the language of rational basis review  In Zauderer , the Supreme Court upheld the contingent fee disclosure after concluding that the requirement was "reasonably related to the State's interest in preventing deception of consumers " But as noted above, lower courts have largely concluded that Zauderer 's reasonableness review may govern the analysis even when the government asserts an interest other than preventing consumer deception  The D C  Circuit has, so far, largely declined to articulate a clear standard for "what type of interest might suffice " That court did conclude in one case that where the government's interest was "substantial under Central Hudson 's standard," that would qualify as a sufficient interest under Zauderer   Perhaps taking a different approach, in a case upholding a disclosure requirement under Zauderer , the Second Circuit described the state's interest as "legitimate and significant " Other than "the interest in correcting misleading or confusing commercial speech," the federal courts of appeals have upheld commercial disclosure requirements where the government asserted interests in food safety, preventing obesity, "protecting human health and the environment from mercury poisoning," and in protecting health benefit providers "from questionable       business practices " By contrast, the Second Circuit held in International Dairy Foods Association v  Amestoy that "consumer curiosity alone is not a strong enough state interest to sustain the compulsion of even an accurate, factual statement " In NIFLA , the Supreme Court indicated that under Zauderer , the government must assert an interest that is "more than 'purely hypothetical '" As discussed above, the State of California's justification for the notice requiring unlicensed clinics to disclose that they were unlicensed was to "ensur[e] that pregnant women in California know when they are getting medical care from licensed professionals " The Court concluded that the state had "point[ed] to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals " NIFLA 's requirement that the government provide evidence supporting an asserted interest differs from the Court's approach in Zauderer itself and in Milavetz   In both Zauderer and Milavetz , the Court rejected arguments that the government had failed to present sufficient evidence to support its interest in the disclosure requirement, concluding that in both of those cases, "the possibility of deception" in the regulated advertisements was "self-evident " Although the standard is not entirely clear, it is possible that in future cases the Court could conclude again that a particular advertisement is so obviously deceptive that the government does not need to submit significant evidence proving that the advertisements are misleading  If the government has asserted a sufficient interest, then under Zauderer , it needs to show only that the disputed disclosure requirement is "reasonably related" to that interest  Describing the Supreme Court's decision in Zauderer , the D C  Circuit has said that the "evidentiary parsing" required by more rigorous First Amendment tests "is hardly necessary when the government uses a disclosure mandate to achieve a goal of informing consumers about a particular product trait, assuming of course that the reason for informing consumers qualifies as an adequate interest " That court further elaborated that "[t]he self-evident tendency of a disclosure mandate to assure that recipients get the mandated information may in part explain why, where that is the goal, many such mandates have persisted for decades without anyone questioning their constitutionality " Similarly, the Second Circuit has observed in one case that "while the First Amendment precludes the government from restricting commercial speech without showing that 'the harms it recites are real and that its restriction will in fact alleviate them to a material degree,'" the First Amendment "does not demand 'evidence or empirical data' to demonstrate the rationality of mandated disclosures in the commercial context " Notwithstanding the suggestion that little evidence is required to show that a disclosure requirement is reasonably related to an appropriate government interest, lower courts have often relied on the government's evidence supporting the disputed requirement when they uphold the provision  This showing may be easiest where the government asserts an interest in preventing misleading speech, given "the self-evident tendency of a disclosure mandate to assure that recipients get the mandated information " Additionally, courts have sometimes held that commercial disclosure requirements fail even this lenient test for rationality, particularly where the government has asserted an interest other than preventing consumer confusion  For example, in National Association of Manufacturers v  SEC , the D C  Circuit held that a provision requiring companies to disclose whether their products were "conflict free" violated the First Amendment  In defending this rule, the government asserted an interest in "ameliorat[ing] the humanitarian crisis in the [Democratic Republic of the Congo (DRC)] " In the court's view, however, the government had failed to demonstrate that its measure would achieve this interest  The D C  Circuit observed that the government had "offered little substance beyond" statements by political officials to support "the effectiveness of the measure " The court assumed that the government's theory "must be that the forced disclosure regime will [lead to boycotts that] decrease the revenue of armed groups in the DRC and their loss of revenue will end or at least diminish the humanitarian crisis there " But in the view of the court, this theory could not justify the regulation, as the idea was "entirely unproven and rest[ed] on pure speculation " To take another example, the Third Circuit struck down a commercial disclosure requirement concerning attorney advertising in Dwyer v  Cappell   In that case, an attorney challenged a state regulation that prohibited attorneys from using quotations from judicial opinions in their advertising unless they presented "the full text" of those opinions  The state argued that such quotations were "inherently misleading because laypersons       would understand them to be judicial endorsements " The court, however, said that even assuming "that excerpts of judicial opinions are potentially misleading to some persons," the state had failed "to explain how [an attorney's] providing a complete judicial opinion somehow dispels this assumed threat of deception " The court reasoned that "providing a full judicial opinion does not reveal to a potential client that an excerpt of the same opinion is not an endorsement " Additionally, the court held that the disputed requirement was "unduly burdensome," as it "effectively rules out the possibility that [an attorney] can advertise with even an accurately quoted excerpt of a judicial statement about his abilities " And in the view of the Third Circuit, "that type of restriction—an outright ban on advertising with judicial excerpts—would properly be analyzed under the heightened Central Hudson standard of scrutiny " As Dwyer suggests, courts may strike down disclosure requirements under Zauderer if the requirement is "unduly burdensome " In NIFLA , the Supreme Court held that the unlicensed notice was likely unconstitutional because it "unduly burden[ed] protected speech," noting that it applied to all advertisements for these licensed facilities, regardless of their content  In particular, the majority opinion highlighted one hypothetical discussed at oral argument, noting that "a billboard for an unlicensed facility that says 'Choose Life' would have to surround that two-word statement with a 29-word statement from the government, in as many as 13 different languages " In this instance, the Court said, the notice would "drown[] out the facility's own message," and therefore be unduly burdensome  If a commercial disclosure requirement is not a factual and uncontroversial disclosure related to the speaker's goods or services under Zauderer , courts will likely apply a heightened standard of review  Under prevailing Supreme Court precedent, if a provision does not qualify for Zauderer 's reasonableness review, a court may review the challenged regulation under Central Hudson   As discussed above, Central Hudson established the general standard of review for government restrictions on commercial speech  The Supreme Court described "a four-part analysis:" At the outset, we must determine whether the expression is protected by the First Amendment  For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading  Next, we ask whether the asserted governmental interest is substantial  If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest  The Court has described the Central Hudson test as "intermediate" scrutiny  If a disclosure requirement affects commercial speech but does not qualify for Zauderer review, courts have generally held that Central Hudson 's intermediate scrutiny applies  However, courts have sometimes suggested that some higher standard of review, more stringent than Central Hudson 's intermediate scrutiny, should apply to commercial disclosure requirements that do not qualify for review under Zauderer   Some lower court judges have concluded that because such disclosures compel particular speech and are by definition not content-neutral, they should be evaluated under strict scrutiny  In contrast to Central Hudson review, which requires the government to show that a law is "not more extensive than is necessary to serve" a "substantial" interest, strict scrutiny "requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest " The Supreme Court has suggested—but not squarely held—that at least some types of commercial disclosure requirements might be subject to some form of scrutiny more strict than Central Hudson   In NIFLA , the Supreme Court considered the constitutionality of state provisions requiring crisis pregnancy centers to make certain disclosures to clients and in their advertising  The Court suggested that the provision requiring licensed facilities to disseminate notices about state-provided services might be subject to strict scrutiny as a content-based regulation of speech, but concluded that it did not need to resolve that question because the notice could not "survive even intermediate scrutiny " Significantly, however, the NIFLA Court never described the licensed notice as involving commercial speech  In the decision below, the Ninth Circuit had held that the notice should not be subject to strict scrutiny because it regulated "professional speech " That court, like other federal courts of appeals, had recognized "speech that occurs between professionals and their clients in the context of their professional relationship" "as a separate category of speech that is subject to different rules " The Ninth Circuit had concluded that speech that was part of the practice of a profession could be regulated by the state, subject only to intermediate scrutiny  The Court rejected this idea, saying that the First Amendment does not encompass a tradition of lower scrutiny "for a category called 'professional speech '" Ultimately, the Court said that it saw no "persuasive reason" to treat "professional speech as a unique category that is exempt from ordinary First Amendment principles " To the extent that "professional speech" could be seen to overlap with commercial speech, this sentence could be read to suggest that commercial speech should also be subject to "ordinary First Amendment principles " This suggestion would seem to conflict with prior cases saying that commercial speech occupies a "subordinate position in the scale of First Amendment values " Although the NIFLA Court implicitly suggested that disclosure requirements for professionals might constitute commercial speech by evaluating the FACT Act's requirements under Zauderer and Central Hudson , it never expressly clarified whether "professional speech" overlaps with commercial speech  Because the FACT Act's requirements applied outside of the advertising context, it may be open to some debate whether these licensed notices involved commercial speech  The unlicensed notice challenged in NIFLA was required to be included in advertising, and advertisements are "classic examples of commercial speech " But the unlicensed notice was also required to be posted on-site, and the state required licensed facilities to post disclosures on-site or to otherwise distribute the notice to clients directly  Further, in a similar context, at least one federal court of appeals concluded that a Baltimore ordinance requiring certain pregnancy centers to make specified disclosures regulated noncommercial speech  That court said the pregnancy centers were not motivated by economic interest or proposing a commercial transaction, but were instead "provid[ing] free information about pregnancy, abortion, and birth control as informed by a religious and political belief " If the licensed disclosures in NIFLA did not regulate commercial speech, then it would be unsurprising that the Court would consider applying strict scrutiny rather than Central Hudson   Others, however, have pointed out that crisis pregnancy centers, even if they do not charge fees, operate "in a marketplace where other providers generally charge fees," and argued that these centers "are engaged in commercial activity by providing physical and mental health services to pregnant women " And more generally, some have pointed out the similarities between "professional" and commercial speech  The fact that the NIFLA Court did not directly address the relationship between professional and commercial speech may suggest that heightened scrutiny may be necessary with respect to some commercial disclosure requirements  Specifically, the Court did not cite the commercial speech doctrine as "a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles " At least one commentator has argued that the Court's failure to mention Central Hudson —"not even to dismiss it as       another inapposite exception to Reed 's general rule [of strict scrutiny]"—may suggest that the Court is seeking to limit Central Hudson 's holding that commercial speech may be more freely regulated than other speech under the First Amendment  Although NIFLA may not have expressly altered the framework used to evaluate commercial disclosure requirements, it may nonetheless signal that the Supreme Court will view them with more skepticism in the future  The majority opinion, authored by Justice Thomas, emphasized that "[t]he dangers associated with content-based regulations of speech are also present in the context of professional speech " Even if "professional speech" is not coterminous with "commercial speech," this statement does seem to suggest that the Court believes content neutrality principles are relevant in the commercial sphere  In dissent, Justice Breyer, viewing the majority opinion as adopting such a view, argued that the majority's approach, "if taken literally, could radically change prior law, perhaps placing much securities law or consumer protection law at constitutional risk " He pointed out that "[v]irtually every disclosure law could be considered 'content based,' for virtually every disclosure law requires individuals 'to speak a particular message '" In response to Justice Breyer, the NIFLA majority stated that it did not "question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products " This view echoed the Court's prior statement that "[p]urely commercial speech is more susceptible to compelled disclosure requirements " Following the Court's 2010 decision in Reed , in which the Court articulated a more "precise test to determine whether speech regulations are content based," many lower courts had rejected the idea that content-based requirements affecting only commercial speech should be subject to strict scrutiny, even if they otherwise discriminated based on content under Reed   But because NIFLA appeared to suggest that content neutrality is relevant in the commercial sphere, it seems reasonable to think that lower courts may now be more likely to conclude that strict scrutiny could apply to content-based commercial disclosure requirements  This would be consistent with what some commentators have described as the Court's increasingly heightened scrutiny of restrictions on commercial speech  For now, though, Central Hudson generally continues to govern the analysis of government actions affecting lawful, non-misleading commercial speech, including commercial disclosure requirements that do not qualify for Zauderer review  As discussed, Central Hudson requires that the government prove that its interest is "substantial," and that the regulation "directly advances" that interest and is "not more extensive than is necessary to serve that interest " Government regulations are more likely to fail this more rigorous standard than the Zauderer reasonableness standard, often because a court believes there is some less restrictive means available for the government to achieve its goals  Courts will require more "evidence of a measure's effectiveness" under Central Hudson , as compared to Zauderer   However, Central Hudson is more forgiving than strict scrutiny, and courts do uphold government actions infringing on commercial speech under Central Hudson   For example, in Spirit Airlines v  Department of Transportation , the D C  Circuit concluded that a federal regulation governing the way that airlines must display flight prices "satisfie[d]       the Central Hudson test " In the court's view, "[t]he government interest—ensuring the accuracy of commercial information in the marketplace—[was] clearly and directly advanced by a regulation requiring that the total, final price be the most prominent" price displayed  And the regulation was "reasonably tailored to accomplish that end" because the rule "simply regulate[d] the manner of disclosure " Government actions are unlikely to be upheld if a court applies strict scrutiny  Nonetheless, some scholars have argued that many disclosure requirements might survive strict scrutiny, and the Supreme Court has, in rare instances, said that the government may "directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech " It is possible that a court could hold that the government has a compelling interest in protecting consumers, for example, and that particular disclosures are narrowly tailored to meet that interest  The Supreme Court has long emphasized that the government can regulate commercial activity "deemed harmful to the public " But a court would likely require more proof from the government under strict scrutiny and likely would not simply accept the government's allegations as "self-evident" under such review  Congress has enacted a wide variety of disclosure requirements, many of which arguably compel commercial speech  For example, the Securities and Exchange Act of 1934 sets out disclosure requirements for registering securities  Federal law, among a host of other food labeling requirements, requires "bioengineered food" to bear a label disclosing that the food is bioengineered  Direct-to-consumer advertisements for prescription drugs must contain a series of disclosures, including the drug's name and side effects  Certain appliances must contain labels disclosing information about their energy efficiency  Bills in the 115 th and 116 th Congresses have proposed additional disclosure requirements, including a bill that would require large online platforms to disclose any studies conducted on users for the purposes of promoting engagement, and a bill that would require public companies to disclose climate-related risks  Recent Supreme Court precedent suggests that the Court is more closely reviewing commercial disclosure requirements, perhaps moving away from a more deferential treatment of such provisions  In NIFLA , the Court held that a disclosure requirement was likely unconstitutional under Zauderer because the government had not presented sufficient evidence to justify the measure —even though in other cases, the Court had rejected similar challenges to commercial disclosure requirements, saying that the government did not need to present more evidence because the harm it sought to remedy was "self-evident " Further, the Court has recently suggested that if a law regulating commercial speech discriminates on the basis of content—as all disclosure requirements seemingly do —then this content discrimination might subject the law to heightened scrutiny  If the Court further embraces this view, it could be a marked departure from its opinions holding that commercial speech could be regulated on the basis of its content, so long as the government's justification for the content discrimination were sufficiently related to its legitimate interests in regulating the speech  In concurring and dissenting opinions that have been joined by other Justices, Justice Breyer has argued that insofar as the Court's recent decisions suggest that commercial disclosure requirements should be subject to heightened scrutiny, they are inconsistent with prior case law and are not a proper application of the First Amendment  The Supreme Court said in NIFLA that it was "not question[ing] the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products " And lower courts have frequently upheld commercial disclosure requirements, perhaps suggesting that disclosures of the kind cited by Justice Breyer are not in danger of wholesale invalidation under the First Amendment  However, the majority opinion in NIFLA did not clarify what kind of disclosures it would consider permissible, and its opinion made clear that disclosure requirements should be scrutinized in light of the speakers they cover and the burdens they pose  Moreover, although the NIFLA Court said that it was not questioning these disclosures' "legality," it left open the possibility that these disclosure should nonetheless be subject to heightened scrutiny  This statement may mean only that the Court believes that many commercial disclosure requirements would meet a higher standard of scrutiny  At least one federal appellate court seems to have taken NIFLA as a signal that lower courts should more closely scrutinize commercial disclosure requirements  In American Beverage Association v  City & County of San Francisco , the Ninth Circuit, sitting en banc , relied on NIFLA to reverse a prior decision that had upheld an ordinance requiring "health warnings on advertisements for certain sugar-sweetened beverages " While a panel of judges had previously concluded that the disclosure requirement was constitutional under Zauderer , the full Ninth Circuit, reviewing that decision, said: " NIFLA requires us to reexamine how we approach a First Amendment claim concerning compelled speech " Namely, the court held that, in light of NIFLA , the health warnings were likely unjustified and unduly burdensome under Zauderer , noting that the regulation required the warnings to "occupy at least 20% of those products' labels or advertisements"—but that the record showed that "a smaller warning—half the size—would accomplish [the government's] stated goals " As such, the court held that the warnings violated the First Amendment "by chilling protected speech " Accordingly, when Congress and federal agencies consider adopting new commercial disclosure requirements, or reauthorizing old ones, it may be wise to develop a record with more evidence demonstrating a need for the regulation  Under any level of scrutiny, courts will examine the government's asserted purpose for the legislation, as well as how closely tailored the disclosure requirement is to achieve that purpose  Under Zauderer , particularly in light of NIFLA , courts may ask for evidence to support the government's claim that the regulated speech is misleading or that the government has some other interest in regulating that speech, and will likely scrutinize the disclosure requirement to make sure it is not unduly burdensome  Under intermediate scrutiny or strict scrutiny, a court may also ask whether the government considered alternative policies that would be less restrictive of speech, examining more closely the government's justifications for choosing a disclosure requirement 

ground_truth: Broadband furthers economic development, educational attainment, and public health and safety; however, residents of tribal lands have lower levels of broadband access relative to the U.S. population. Congress has prioritized identifying and targeting funds to unserved areas. FCC uses data from broadband providers to develop maps and reports depicting broadband availability in the United States, with specific information on tribal lands. GAO was asked to review FCC's efforts to collect broadband data for tribal lands. This report examines the extent to which: (1) FCC's approach to collecting broadband data accurately captures broadband access on tribal lands and (2) FCC obtains tribal input on the data. GAO interviewed stakeholders from 25 tribal governments or tribally owned providers, and visited nine tribal lands. The selected tribes varied geographically and in levels of broadband availability, among other characteristics. GAO also reviewed FCC's rulemakings on broadband data and interviewed other tribal stakeholders, FCC officials, and 13 non-tribal broadband providers selected to include a diversity of technologies. Provider and tribal interviews were based on non-generalizable samples. The Federal Communications Commission (FCC) collects data on broadband availability from providers, but these data do not accurately or completely capture broadband access on tribal lands. Specifically, FCC collects data on broadband availability; these data capture where providers may have broadband infrastructure. However, FCC considers broadband to be “available” for an entire census block if the provider could serve at least one location in the census block. This leads to overstatements of service for specific locations like tribal lands (see figure). FCC, tribal stakeholders, and providers have noted that this approach leads to overstatements of broadband availability. Because FCC uses these data to measure broadband access, it also overstates broadband access—the ability to obtain service—on tribal lands. Additionally, FCC does not collect information on several factors—such as affordability, quality, and denials of service—that FCC and tribal stakeholders stated can affect the extent to which Americans living on tribal lands can access broadband services. FCC provides broadband funding for unserved areas based on its broadband data. Overstatements of access limit FCC's and tribal stakeholders' abilities to target broadband funding to such areas. For example, some tribal officials stated that inaccurate data have affected their ability to plan their own broadband networks and obtain funding to address broadband gaps on their lands. By developing and implementing methods for collecting and reporting accurate and complete data on broadband access specific to tribal lands, FCC would be better able to target federal broadband funding to tribal areas that need it the most and to more accurately assess FCC's progress toward its goal of increasing all Americans' access to affordable broadband. FCC does not have a formal process to obtain tribal input on the accuracy of provider-submitted broadband data. In the National Broadband Plan , FCC highlighted the need for a targeted approach to improve broadband availability data for tribal lands. As outlined in the plan, such an approach would include working with tribes to ensure that information is accurate and useful. About half of the tribal stakeholders GAO interviewed raised concerns that FCC relies solely on data from providers, and most stated FCC should work with tribes to improve the accuracy of FCC's data. Establishing a formal process to obtain input from tribal governments on the accuracy of provider-submitted broadband data could help improve the accuracy of FCC's broadband data for tribal lands. GAO is making three recommendations to FCC, including that it collect and report data that accurately measure tribal broadband access as well as develop a process to obtain tribal input on the accuracy of the data. FCC agreed with the recommendations.

prompt_front: You are given two reports by the government agency.



Question: Write a one-page summary of the report 2.

Report 1: The federal government has recognized 573 Indian tribes as distinct, independent political communities with tribal sovereignty  There are different categories of tribal lands, with differing implications with respect to ownership and administration  Reservations are defined geographic areas with established boundaries recognized by the United States  Tribal lands vary in size, demographics, and location  For example, those lands smallest in size are less than one square mile, and the largest, the Navajo Nation, is more than 24,000 square miles (the size of West Virginia)  Tribal land locations can range from extremely remote, rural locations to urban areas  Figure 1 shows tribal lands in the United States according to the 2010 Census  The term “broadband” commonly refers to Internet access that is high speed and provides an “always-on” connection, so users do not have to reestablish a connection each time they access the Internet  Broadband service may be “fixed”—that is, providing service to a single location, such as a customer’s home—or “mobile,” that is, providing service wherever a customer has access to a mobile wireless network, including while on the move, through a mobile device, such as a smartphone  Fixed and mobile broadband providers deploy and maintain infrastructure to connect consumers to the Internet  Providers offer fixed Internet service through a number of technologies, such as copper phone lines, fiber-optic lines, coaxial cables, wireless antennas, satellites, or a mix of technologies (see fig  2)  To install fixed or wireless infrastructure, providers must obtain permits from government entities with jurisdiction over the land or permission from public utilities to deploy infrastructure on existing utility poles  The federal government has emphasized the importance of ensuring Americans have access to broadband, and a number of agencies, including FCC, currently provide funding to subsidize broadband deployment in areas in which the return on investment has not attracted private investment  The Communications Act of 1934, as amended by the Telecommunications Act of 1996, specifies that consumers in “rural, insular, and high-cost areas” should have access to telecommunication services and rates that are “reasonably comparable” to consumers in urban areas  To achieve this goal, FCC administers the High-Cost program, which provides subsidies to providers of phone service in rural, insular, and other remote areas  In 2011, FCC launched a series of reforms to its High-Cost program, including adding support for broadband services, and created the Connect America Fund, which provides subsidies to fixed and mobile providers of telecommunications and broadband services in rural, insular, and other remote areas where the costs of providing service is high  To be eligible for Universal Service Fund support from FCC, a provider must be designated an Eligible Telecommunications Carrier by the appropriate state or by FCC and must meet certain service obligations  The Connect America Fund has distributed approximately $4 5 billion per year, and has separate funding mechanisms targeted to specific goals  For example, there are funds for fixed-phone and broadband service and funds for mobile service, including a Tribal Mobility Fund (Phase 1) that awarded nearly $50 million in 2014 for the provision of 3G and 4G service to unserved tribal areas  In addition to FCC, a number of other agencies provide funding for broadband deployment in unserved or underserved areas  For example, the United States Department of Agriculture’s Community Connect Program, which provides grants to rural communities to provide high- speed Internet service to unserved areas  The American Recovery and Reinvestment Act of 2009 (Recovery Act) mandated the development of a nationwide map of broadband availability  To implement the act, the National Telecommunications & Information Administration (NTIA)—an agency within the Department of Commerce—established a grant program to enable U S  states and territories to collect state-level broadband mapping data  NTIA used these data to launch the National Broadband Map (www broadbandmap gov) in February 2011  As the funding for the NTIA’s program came to an end in 2014, NTIA stopped collecting data to update the map and, according to FCC officials, created a memorandum of understanding with FCC through which FCC agreed to maintain public access to the last version of the map  FCC issued rules in 2013 to begin collecting broadband deployment data, in addition to the broadband subscription data it had collected from providers since 2000  FCC sought, but did not receive, $3 million to update the National Broadband Map in its fiscal year 2015 and fiscal year 2016 budgets  In 2018, Congress directed FCC to develop a report by March 23, 2019, evaluating broadband coverage in certain tribal lands (to include an assessment of areas that have adequate broadband coverage, as well as an assessment of unserved areas), and to complete a proceeding to address unserved areas by September 23, 2020  Currently, FCC requires broadband providers to report on their broadband deployment by filing a form twice a year (Form 477)  Fixed broadband providers submit a list of the census blocks in which their broadband service is available, and mobile providers submit “shapefiles”—a geospatial depiction of the coverage area, which FCC refers to as “polygons”—of their coverage areas  FCC uses providers’ 477 data to develop a statutorily mandated annual report on advanced telecommunications capability  In addition, in 2016, FCC began publishing its own maps of broadband deployment, using the information from providers’ Form 477 filings  In February 2018, FCC launched an updated map of fixed broadband deployment (https://broadbandmap fcc gov/#/)  This map allows users to search for broadband deployment by address and provides summary-level statistics regarding broadband deployment in specific tribal lands (see fig  3)  According to FCC officials, this new map format will support more frequent data updates  FCC also provides national maps of mobile LTE coverage; these maps do not allow users to access data at the same level of granularity as the maps of fixed broadband (see fig  4)  FCC collects and uses data that capture broadband availability to measure broadband access on tribal lands, leading to overstatements of broadband access on tribal lands  Specifically, FCC’s method of collecting mobile and fixed broadband data from providers (the Form 477) does not accurately or completely capture broadband access on tribal lands because it (1) captures nationwide broadband availability data— areas where providers may have broadband infrastructure—but does so in a way that leads to overstatements of availability, and (2) does not capture information on factors that FCC and tribal stakeholders have stated can affect broadband access on tribal lands, such as affordability, service quality, and denials of service  Nonetheless, FCC uses its Form 477 broadband availability data in annual broadband deployment reports to measure the percentage of Americans living on tribal lands with or without access to broadband, and to measure progress toward FCC’s strategic goal of increasing all Americans’ access to affordable broadband  By using broadband availability data to measure broadband access on tribal lands, FCC overstates broadband access on tribal lands  FCC’s Form 477, its primary method of collecting nationwide broadband data, collects information on broadband availability, which identifies where providers have broadband infrastructure and could potentially provide broadband services but not where consumers can actually access those services  Moreover, the Form 477’s mobile broadband data- collection methods are not standardized, and its fixed broadband data- collection methods are not sufficiently granular to provide information about broadband availability on tribal lands  FCC’s Form 477 requires mobile broadband providers to report their coverage areas by submitting geospatial data depicting the areas in which consumers could expect to receive the minimum advertised speed  FCC has previously noted the importance of collecting nationally standardized, uniform broadband data from providers to assess broadband availability and allow for easy comparison across providers  However, the Form 477 does not require that providers use a standardized method with defined technical parameters (such as signal strength, or amount of interference) when determining their coverage area, resulting in data that cannot be meaningfully compared across providers, according to FCC  To map their coverage areas, providers may use predictive models based on different measurement methods and a variety of factors known to affect mobile broadband service such as topography, tree cover, and buildings, among other factors  Providers and tribal stakeholders have expressed concern with the accuracy of FCC’s mobile broadband data, and FCC has acknowledged concerns that the lack of a standardized method resulted in data that were unreliable for the purposes of determining mobile broadband coverage for specific geographic areas, such as tribal lands  About half of the tribal government representatives we interviewed told us that they believe FCC’s data overstate mobile LTE broadband availability on their lands  For example, a few representatives expressed concerns with the accuracy of the mobile data in areas with varied terrain, such as mountains and valleys  In comments to FCC, broadband providers have also raised concerns regarding the accuracy of the mobile coverage data generated by the Form 477 for the purposes of identifying areas eligible for funding through FCC’s Mobility Fund Phase II program, which provides federal funding to increase mobile broadband services in unserved areas  In 2017, in response to such concerns, FCC reversed its prior decision to use the Form 477 data to identify specific areas eligible for federal funding through the Mobility Fund Phase II program  Instead, FCC undertook a one-time special data collection, for which it required providers to measure their coverage based on a common set of standards, in order to better identify unserved areas that would be presumptively eligible for funding  FCC plans to allow parties, including tribal governments, to challenge the data where they believe the data overstate mobile broadband coverage through August, 2018  Additionally, in an August 2017 Notice of Proposed Rulemaking, FCC requested comment on potential changes to modernize its Form 477 data collection, including whether it should require all providers to use a standardized method when submitting mobile coverage data on the form  FCC officials told us that they do not have a timeline for the development of a final rule, and as of August 2018, FCC had not yet issued a final rule on modernizing the Form 477  The Form 477 collects fixed broadband data that are not sufficiently granular to accurately depict broadband availability on tribal lands  Specifically, FCC directs fixed broadband providers to submit a list of census blocks where service is available on the Form 477  FCC defines “available” as whether the provider does—or could, within a typical service interval or without an extraordinary commitment of resources— provide service to at least one end-user premises in a census block  Thus, in its annual reports and maps of fixed broadband service, FCC considers an entire block to be served if a provider reports that it does, or could offer, service to at least one household in the census block  FCC does not define a typical service interval or an extraordinary commitment of resources in its Form 477 instructions  However, FCC officials stated that providers should not report service in areas in which major construction would be required to provide service  A few providers told us that the lack of clear guidance from FCC regarding how to determine where broadband is available has led different providers to interpret the Form 477 directions in different ways, which can affect the accuracy and consistency of reporting from provider to provider  For example, in a filing with FCC, one provider stated that it had misapplied the definition of “available” and, as a result, overstated the availability of its services by almost 3,000 census blocks  As shown in figure 5, FCC’s definition of availability leads to overstatements of fixed broadband availability on tribal lands by: (1) counting an entire census block as served if only one location has broadband, and (2) allowing providers to report availability in blocks where they do not have any infrastructure connecting homes to their networks if the providers determine they could offer service to at least one household  Almost all the providers and private companies, and most of the representatives of tribal governments and organizations we spoke with told us that due to these issues, FCC’s definition of availability results in data that overstate broadband availability  According to FCC officials, FCC requires providers to report fixed broadband availability where they could provide service within a “typical service interval” and without “an extraordinary commitment of resources” in order to: (1) ensure that it captures instances in which a provider has a network nearby but has not installed the last connection to the homes, and (2) identify where service is connected to homes, but homes have not subscribed  FCC officials also told us that FCC measures availability at the census block level because sub-census block data may be costly to collect  In 2013, FCC considered collecting more granular nationwide data on broadband deployment but decided against collecting these data because it determined that the burden would outweigh the benefit  However, FCC, tribal stakeholders, and providers have noted that FCC’s approach leads to overstatements of availability  For example, in its 2017 Notice of Proposed Rulemaking on modernizing the Form 477 data collection, FCC acknowledged that by requiring a provider to report where it could provide service, it is impossible to tell whether the provider would be unable or unwilling to take on additional subscribers in a census block it lists as served  According to FCC, this limits the value of the data to inform FCC policies  In addition, several providers and tribal stakeholders we interviewed said that some “digital subscriber line” (DSL) and fixed wireless providers may overstate their service areas on the Form 477 because they may not take into account technological or terrain limitations that would affect their ability to actually provide service  FCC has also recognized that by measuring availability at the census block level, not every person will have access to broadband in a block that the data show as served, and FCC has noted that in rural areas, such as tribal lands, census blocks can be large and providers may only deploy service to a portion of the census block  A few representatives for tribal governments and organizations noted that the use of census blocks may uniquely overstate broadband availability on tribal lands when census blocks contain both tribal and non-tribal areas, because availability in the non-tribal portion of the block can result in the tribal area of the census block also being counted as served  FCC is considering requiring providers to report whether they are willing and able to serve additional customers in a census block and collecting sub-census block data in its 2017 proposed rulemaking on modernizing the Form 477  About one-third of the parties that commented on FCC’s proposals were not in favor of FCC collecting these more granular data on the Form 477, stating that the data would be less accurate and more burdensome for providers to collect and report, among other reasons, and questioned whether more detailed information on nationwide broadband availability is necessary  We heard similar concerns from a few of the providers and trade associations we interviewed  However, about one- third of the parties that commented on FCC’s proposals were in favor of collecting more granular data, stating that such data would be more useful for policymakers and more accurate  Additionally, a few tribally owned and non-tribal providers we interviewed told us that providers already maintain data for business purposes that would allow them to report more granular information on broadband availability  One stakeholder we spoke with pointed out that, as the federal government and states work to ensure the last remaining unserved areas—rural, low- population density areas including tribal lands—have service, sub- census-block-level data are needed to ensure that governments are making wise and accurate investments  FCC does not collect information on several factors that FCC and tribal stakeholders have stated can affect broadband access  FCC and tribal stakeholders have noted that broadband access can be affected by factors such as the affordability and quality of the broadband services being offered, and the extent to which providers deny service to those who request it  By collecting and using data on factors that can affect broadband access, FCC would have more complete information on the extent to which Americans living on tribal lands have access to broadband Internet services  Affordability: FCC has noted that affordability of broadband services can affect broadband access but does not collect information on the cost of broadband service on tribal lands on the Form 477  For example, in the National Broadband Plan, FCC cited affordable access to robust broadband service as a long-term goal, and in its Strategic Plan 2018–2022, FCC acknowledged that affordability is an important factor affecting broadband access and a key driver of the digital divide  Moreover, most of the representatives of tribal governments and organizations we spoke to told us that the affordability of broadband services is an important factor for understanding whether or not people on tribal lands could realistically access broadband services  Tribal government officials from one tribe we spoke with told us that residents on their lands cannot access broadband because it is too costly  For example, a provider that advertises services on the tribe’s land charges $130 per month for broadband services, approximately one-and-a-half times the average rate providers charge for comparable services in urban areas, according to FCC (see fig  6)  In the 2018 Broadband Deployment Report, FCC acknowledged that affordability can influence a consumer’s decision on whether to purchase broadband, but FCC did not consider cost in its assessment of broadband access on tribal lands, stating that pricing does not go to the congressional requirement to assess deployment and availability in conducting its inquiry as required by Congress under section 706 of the Telecommunications Act and also citing a lack of reliable comprehensive data on this issue  In addition, FCC officials we interviewed acknowledged that while broadband service may be technically available, it may be prohibitively expensive for some, which may make availability alone an incomplete indicator of broadband access  Quality of Service: In the Telecommunications Act of 1996 Congress recognized the importance of service quality by defining advanced telecommunications capability as any technology that enables users to originate and receive high-quality voice, data, graphics, and video telecommunications  In keeping with this legislation, FCC has consistently set thresholds for speeds that qualify as broadband services and has stated that “latency” and consistency of service figure prominently into whether a broadband service is able to provide advanced capabilities and thus whether users can access high-quality telecommunications  Likewise, almost all of the representatives for tribal governments or organizations we interviewed told us that quality of service is a key component of access to broadband and that routine outages, slow speeds, and high latency keep people on tribal lands from consistently accessing the Internet  Most tribal stakeholders and a few providers we interviewed told us that factors such as terrain, weather, and type of technology can all affect the quality of service an end user receives and, ultimately, the subscribers’ ability to access the Internet (see fig  7)  For example, some representatives of tribal governments and organizations told us issues like oversubscription— when a provider signs up more customers than its equipment can handle—and outdated or limited infrastructure result in low-quality services that cannot support advanced and, in some cases, basic functions  Though FCC uses the Form 477 to collect some data on advertised speeds from providers, FCC does not collect data on actual speeds, service outages, and latency on the form  In its 2018 Broadband Deployment Report, FCC stated that it did not consider FCC data on actual speed, latency, or consistency of service when evaluating broadband access due to the lack of appropriate data  FCC noted that the lack of Form 477 data on actual speeds in particular constrained evaluation of mobile broadband access  Service Denials: FCC has recognized that information on denials of service is pertinent to understanding actual broadband access but does not collect data on service denials in the Form 477  Specifically, in the National Broadband Plan, FCC recommended that FCC collect data to determine whether broadband service is being denied to potential residential customers based on the income of the residents in a particular geographic area  Some representatives of the tribal governments or organizations told us that that they were aware of a provider denying service to residents of tribal lands, despite the provider reporting broadband availability on at least a portion of those lands, according to our analysis of the Form 477 data  These representatives told us that they believed service was denied because of disputes with the tribal government, low demand for service, or the high costs of extending services to the home on tribal lands  Some representatives of tribal governments or organizations we spoke with also told us that providers may have denied service because their equipment was at capacity and could not accommodate new users (see fig  8)  For example, on three of the tribal lands we visited, we observed fiber optic cable located close to government and residential structures that did not have broadband access via fiber  According to tribal government officials, despite the physical proximity of the fiber optic cable, the tribal government and residents could not access it because the provider was not offering service or was unwilling or unable to build to the structures  A few providers we interviewed stated that they may not provide services to individuals who request them because of high-costs, administrative barriers, or technical limitations  However, FCC does not collect data on service denials on the Form 477  In its Strategic Plan 2018–2022 and the National Broadband Plan, FCC identified increasing all Americans’ access to affordable broadband as a long-term, strategic goal  Congress has similarly directed FCC to develop policies and programs aimed at increasing access to affordable broadband in all regions of the United States, including tribal lands, and required FCC to report annually on its progress  According to the Government Performance and Results Act (GPRA), as enhanced by the GPRA Modernization Act of 2010 (GPRAMA), agencies should use accurate and reliable data to measure progress toward achieving their goals  Additionally, Standards for Internal Control in the Federal Government state that agencies should use quality information— information that is complete, appropriate, and reliable—to inform decision-making processes and evaluate the agency’s performance in achieving goals  According to these standards, agencies should also communicate quality information externally to achieve the agency’s goals  However, FCC has used its Form 477 data, which do not accurately or completely measure broadband access on tribal lands, as its primary source to evaluate progress toward FCC’s strategic goal of increasing broadband access and to develop maps and reports intended to depict broadband access on tribal lands  For example, in its 2018 Broadband Deployment Report, FCC found that 64 6 percent of Americans residing on tribal lands have access to fixed broadband services  By using these data, FCC has overstated the extent to which Americans living on tribal lands can actually access broadband Internet services and FCC’s progress toward increasing broadband access  As a result, the digital divide may appear less significant as a national challenge, and FCC and tribal stakeholders working to target broadband funding to unserved or underserved tribal lands will be limited in their ability to make informed decisions  This increases the risk that residents living on tribal lands will continue to lack broadband access  Some tribal officials stated that inaccurate data have affected their ability to plan their own broadband networks and obtain federal broadband funding, and most of the tribal stakeholders we interviewed identified a pressing need for accurate data on the gaps in broadband access on tribal lands in order to ensure that tribes can qualify for federal funding and to effectively target the areas that need it most  For example, representatives for one tribal government that is providing broadband services said the government will not be able to use a federal grant to build broadband infrastructure in areas of their reservation that lack access, because the Form 477 data overstate actual access on the tribe’s land  As more than three quarters of the tribal governments we spoke to are working to provide broadband services on their lands in some capacity, overstating broadband access on tribal lands could affect the ability of a number of tribes to access federal funding to increase broadband access on their lands  As previously discussed, FCC is considering proposals to modify its Form 477 data collection as part of a 2017 Notice of Proposed Rulemaking, but FCC officials told us that the Commission does not have a timeline for issuance of a final rule  While some of FCC’s proposals could help address some of the limitations identified above by, for example, collecting more granular nationwide broadband availability data, FCC has not addressed specifically the collection of more accurate and complete data on broadband access for tribal lands in this proceeding  FCC has identified the need to improve broadband data for tribal lands in particular, and as previously noted, in 2018 Congress directed FCC to develop a report evaluating broadband coverage in certain tribal lands and initiate a proceeding to address the unserved areas identified in the report  FCC officials told us that FCC has not determined how it will address this requirement, but it is currently considering its options, including potentially addressing the requirement as part of its ongoing proposed rulemaking on modernizing the Form 477 data collection  An evaluation of broadband coverage on tribal lands that relies on the current Form 477 data would be subject to the limitations described above, including the overstatement of broadband access on tribal lands  Additionally, FCC has demonstrated that it is possible in some circumstances to collect more granular data when such data collection is targeted to a specific need or area  For example, in 2017 FCC began requiring certain providers that receive funding through the Connect America Fund to report the latitude and longitude of locations where broadband is available, and FCC has noted that these more granular data are extremely useful to the Commission, especially for rural areas where census blocks can be quite large  A few large providers and trade associations similarly stated in public comments on FCC’s proposed rulemaking to modernize the Form 477 process that FCC should target its collection of more granular broadband data to areas where the data are most likely to be overstated—specifically, large, rural census blocks with low population densities, such as those on tribal lands  Additionally, as discussed above, FCC undertook a one-time special data collection for Mobility Fund II to ensure that the mobile broadband data it collected would be reliable for the intended use  By developing and implementing methods for collecting and reporting accurate and complete data on broadband access specific to tribal lands, FCC would be able to better identify tribal areas without access to broadband and to target federal broadband funding to the tribal areas most in need  FCC uses data submitted by broadband providers via the Form 477 process to develop maps and datasets depicting broadband services nationwide, and in specific locations, such as tribal lands, but does not have a formal process to obtain input from tribes on the accuracy of the broadband data  FCC’s 2010 National Broadband Plan noted the need for the federal government to improve the quality of data regarding broadband on tribal lands and recommended that FCC work with tribes to ensure that any information collected is accurate and useful  It also noted that tribal representatives should have the opportunity to review mapping data about tribal lands and offer supplemental data or corrections  Similarly, federal internal control standards note the need for federal agencies to communicate with external entities, such as tribal governments, and to enable these entities to provide quality information to the agency that will help it achieve its objectives  FCC officials told us that they address questions and concerns regarding provider coverage claims submitted to the Office of Native Affairs and Policy, which will work with tribal governments to help them identify inaccurate broadband data for tribal lands, and share tribal questions and concerns with the appropriate FCC bureaus  However, FCC does not have a formal process for tribes (or other governmental entities) to provide input to ensure that the broadband data FCC collects through the 477 process, or the resulting maps that FCC creates to depict broadband on tribal lands, are accurate  Similarly, FCC does not use other methods to verify provider-submitted Form 477 data on tribal lands against other sources of information, such as on-site tests or data collected by other agencies  When discussing the lack of a formal process for tribal representatives or other governmental entities to provide feedback on the accuracy of the 477 broadband data, FCC officials noted that if consumers and local officials have information on individual locations that lack broadband service, such information does not indicate that the entire census block lacks broadband service  Additionally, FCC officials noted that providers attest to the accuracy of the data and that FCC staff validate the data by conducting internal checks to identify possible errors, such as unlikely changes in a providers’ coverage area, and may follow-up with a provider to discuss such changes  However, these checks do not include soliciting input from tribes  About half of the tribal stakeholders we spoke to raised concerns that FCC’s broadband deployment data rely solely on unverified information submitted by providers  Additionally, most tribal stakeholders we interviewed told us that consistent with the recommendations in the National Broadband Plan, FCC should work directly with tribes to obtain information from them to improve the accuracy of its broadband deployment data for tribal lands  These stakeholders identified several ways in which FCC could work with tribes on this issue, including: conducting on-site visits with tribal stakeholders to observe the extent to which broadband infrastructure and services are present; conducting outreach and technical assistance for tribal stakeholders to raise awareness and use of FCC’s broadband data; and providing opportunities for the tribes to collect their own data or submit feedback regarding the accuracy of FCC’s data  FCC’s National Broadband Plan notes the importance of supporting tribal efforts to build technical expertise with respect to broadband issues, and federal internal control standards state that federal agencies should obtain quality information from external entities  Officials we interviewed in FCC’s Office of Native Affairs and Policy told us that they provide some outreach and technical assistance to tribal officials at regional and national workshops, and FCC officials stated that they conducted specific outreach to tribal entities regarding the Mobility Fund Phase II challenge process, while, about half of the tribal representatives we spoke to stated that they were not aware of the Form 477 data or corresponding maps, or raised concerns about a lack of outreach from FCC to inform tribes about the data  Some tribal stakeholders stated that if FCC were to solicit tribal input as part of its verification of the broadband data and maps, technical training and assistance could help tribes use and provide feedback on the data, or improve the collection and submission of their own data  A few of the stakeholders we interviewed noted that tribes can face difficulties when they attempt to challenge FCC’s broadband availability data  For example, in 2013, prior to the auction that distributed Tribal Mobility Fund Phase 1 support, FCC allowed interested parties to challenge FCC’s preliminary determinations regarding which census blocks lacked 3G or better service and would be eligible for support in the auctions  However, all of the tribal entities that challenged the accuracy of FCC’s data were unsuccessful in increasing the number of eligible areas  According to FCC officials, the tribal entities did not provide sufficient or sufficiently verifiable information to support their challenges  A few tribal stakeholders provided varying reasons for this, one of which was the need for more technical expertise to help the tribe meet FCC’s requirements  Because FCC lacks a formal process to obtain tribal input on its broadband data, FCC is missing an important source of information regarding areas in which the data may overstate broadband service on tribal lands  Tribal stakeholders are able to provide a first-hand perspective on the extent to which service is available within their lands and the extent to which factors like affordability, service quality, and service denials affect residents’ ability to access broadband  FCC plans to award nearly $2 billion in support from the Connect America Fund to areas that it has identified as lacking broadband, including tribal lands  Any inaccuracies in its broadband data could affect FCC’s funding decisions and the ability of tribal lands to access broadband in the future  Additionally, in its 2017 report on tribal infrastructure, the National Congress of American Indians stressed the importance of including tribal governments in a leadership role with respect to collecting data on local infrastructure needs  Specifically, it stressed the need for the federal government to invest in tribal data systems and researchers to generate useful, locally specific data that can inform the development and implementation of infrastructure development projects and assess the effectiveness of those projects over time  By establishing a process to obtain input from tribal governments on the accuracy of provider- submitted broadband data that includes outreach and technical assistance, as recommended in the National Broadband Plan, FCC could help tribes develop and share locally specific information on broadband access, which would in turn improve the accuracy of FCC’s broadband data for tribal lands  The success of such an effort may rely on the tribes’ knowledge of, and technical ability to participate in, the process  When discussing the need to improve data regarding broadband on tribal lands, FCC’s 2010 National Broadband Plan recommended that FCC develop a process for tribes to receive information from providers about broadband services on tribal lands  In 2011, FCC required that Eligible Telecommunications Carriers (providers receiving Universal Service Funds from FCC) serving tribal lands meaningfully engage with tribes regarding communications services (including broadband)  Specifically, the providers must file an annual report documenting that this engagement included a discussion of, among other things, a needs assessment and deployment planning for communications services, including broadband  FCC’s 2012 guidance on fulfilling the engagement obligations, which FCC officials confirmed is still in effect, noted that the stated goal of the engagement requirement was to benefit tribal government leaders, providers, and consumers by fostering a dialogue between tribal governments and providers that would lead to improved services on tribal lands  The guidance further noted that the tribal engagement process “cannot be viewed as simply another ‘check the box’ requirement by either party,” and states that a provider should “demonstrate repeated good faith efforts to meaningfully engage with the tribal government ” Finally, FCC noted in its 2012 guidance that the guidance would evolve over time based on the feedback of both tribal governments and broadband providers and that FCC would develop further guidance and best practices  This approach is consistent with federal internal control standards, which call for agencies to communicate with, and obtain quality information from, external parties  About half of the tribal stakeholders we interviewed raised concerns about difficulties accessing information from providers regarding broadband deployment on their tribe’s lands, a key part of the provider engagement process, according to FCC’s guidance  For example, a representative from one tribe stated that a provider declined his requests to meet more than once a year to discuss the provider’s deployment of broadband services on the tribe’s land  A representative from another tribal government stated that some providers are very focused and transparent about their broadband plans and work with the tribe, while other providers treat tribal engagement as a “box to check” and send the tribe broadband deployment information that is not useful because it is redacted  Similarly, some tribal stakeholders stated that providers heavily redacted deployment information (which providers may consider proprietary) or required the tribe sign non-disclosure agreements to access deployment data  According to one tribal stakeholder, these non-disclosure agreements could possibly require tribes to waive tribal sovereign immunity in order to view the data  Some of the industry stakeholders we interviewed stated that they attempt to engage with tribes but the level of responsiveness from tribes varies  For example, some stakeholders stated that they send letters and do not hear back from tribes  One stakeholder stated that they make repeated attempts to contact tribes when they do not hear back after their initial contact, while another stated that a provider meets regularly with some tribes  Although FCC stated in its 2012 guidance that it would update the tribal engagement guidance and develop best practices based on feedback from tribal governments and broadband providers, it has taken limited steps to obtain such feedback from providers and tribal governments to determine whether its guidance is enabling meaningful tribal engagement  Additionally, FCC has not updated the guidance or issued best practices  Thus, FCC has limited information regarding whether its tribal engagement requirement is fulfilling its intended purpose  FCC officials we interviewed said that the Office of Native Affairs and Policy (ONAP) provided information and, in some cases, held training sessions about the tribal engagement obligation during workshops with tribal representatives, and encouraged representatives to contact ONAP with any concerns  ONAP officials also noted that they handle complaints from tribes regarding a lack of provider engagement and reach out to providers to address tribal concerns  ONAP officials stated that they have had internal discussions about whether the guidance is clear or needs revision, but this has not gone beyond internal discussions  A few of the tribal stakeholders provided examples of the benefits of providers engaging with tribes to ensure tribal representatives have access to information regarding broadband availability on their lands  For example, one representative stated that this information could help the tribes plan deployments by focusing on areas that they know the provider does not plan to serve  Another representative stated that tribal engagement could help improve the accuracy of FCC’s broadband maps  By obtaining feedback from both tribal stakeholders and providers on the effectiveness of FCC’s tribal engagement guidance to determine whether changes are needed, FCC would be better positioned to ensure that tribal governments and providers are sharing information in a manner that will lead to improved services on tribal lands  FCC has collected data and developed maps and reports depicting broadband on tribal lands and has noted the lower levels of broadband access on tribal lands, in comparison to other areas  However, limitations in FCC’s existing process for collecting and reporting broadband data have led FCC to overstate broadband access on tribal lands  By taking steps to address these limitations and to collect data that more accurately and completely depict broadband access on tribal lands, FCC would have greater assurance that it is making progress on reducing the digital divide on tribal lands and targeting broadband funding to tribal lands most in need  Without taking these steps, FCC increases the risk that residents living on tribal lands will continue to lack broadband access  Compounding the limitations in FCC’s data collection process is FCC’s lack of a formal process to obtain tribal input on the accuracy of provider- submitted broadband data for tribal lands  By developing a process to solicit tribal input and ensuring that tribes know about the process and are equipped with the technical skills and abilities necessary to provide this information, FCC would be better able to ensure the accuracy of its broadband data for tribal lands  Moreover, FCC would be able to obtain firsthand, locally specific information on broadband access that could inform FCC’s policies and funding decisions and help FCC achieve its goal of increasing broadband access for all Americans, including those living on tribal lands  Finally, by obtaining feedback from providers and tribal stakeholders on the effectiveness of FCC’s tribal engagement guidance, FCC would be better positioned to assess whether its guidance is helping providers meet requirements and ultimately whether providers’ engagement is fulling its intended purpose of fostering a dialogue between tribal governments and providers that would lead to improved services on tribal lands  We are making the following three recommendations to the Chairman of the Federal Communications Commission  The Chairman of the Federal Communications Commission should develop and implement methods—such as a targeted data collection—for collecting and reporting accurate and complete data on broadband access specific to tribal lands  (Recommendation 1) The Chairman of the Federal Communications Commission should develop a formal process to obtain tribal input on the accuracy of provider-submitted broadband data that includes outreach and technical assistance to help tribes participate in the process  (Recommendation 2) The Chairman of the Federal Communications Commission should obtain feedback from tribal stakeholders and providers on the effectiveness of FCC’s 2012 statement to providers on how to fulfill their tribal engagement requirements to determine whether FCC needs to clarify the agency’s tribal engagement statement  (Recommendation 3) We provided a draft of this report to FCC for review and comment  In written comments provided by FCC (reproduced in appendix III), FCC agreed with our findings and recommendations  In its written comments, FCC described efforts, some of which are already under way, that it felt would address each recommendation and stated its intent to build upon those efforts  For example, FCC explained that it is exploring methods to collect more granular broadband deployment data and noted the need to balance the burden on Form 477 filers  FCC also noted that it is starting work to address a statutorily-required evaluation of broadband coverage on certain tribal lands  We agree that increasing the granularity of deployment data is helpful in addressing data accuracy issues, but we also note that it is important to collect data related to factors that affect broadband access on tribal lands  FCC also described informal efforts to collect tribal feedback on providers’ broadband data and stated it would explore options for a formal process to collect feedback  Regarding our recommendation related to providers’ engagement efforts, FCC outlined its existing methods by which tribal stakeholders can provide feedback on providers’ engagement efforts and agreed that seeking additional feedback from tribal stakeholders and providers would be desirable  We agree that improving feedback in these ways could help FCC determine whether it needs to clarify its tribal engagement statement  FCC also provided technical comments, which we incorporated as appropriate  We are sending copies of this report to the appropriate congressional committees, the Chairman of the Federal Communications Commission, and other interested parties  In addition, the report is available at no charge on the GAO website at http://www gao gov  If you or your staff have any questions about this report, please contact me at (202) 512-2834 or GoldsteinM@gao gov  Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report  GAO staff who made key contributions to this report are listed in appendix IV  Appendix I: List of Interviewees Representatives from tribal governments or tribally owned broadband providers Choctaw Nation of Oklahoma (OK) Confederated Tribes of the Colville Reservation (WA) Fond du Lac Band of Lake Superior Chippewa (MN) Fort Belknap Indian Community (MT) Gila River Telecommunications, Inc  (AZ) Hopi Telecommunications, Inc  (AZ) Jamestown S’Klallam Tribe (WA) Karuk Tribe (CA) Leech Lake Band of Ojibwe (MN) Makah Tribe (WA) Navajo Tribal Utility Authority (AZ, NM, UT) Nez Perce Tribe (ID) Osage Nation (OK) Pueblo of Acoma (NM) Pueblo of Pojoaque (NM) Pueblo of San Ildefonso (NM) Taos Pueblo (NM) Red Spectrum Communications (Coeur d’Alene Tribe (ID)) Saint Regis Mohawk Tribe and Mohawk Networks, LLC (NY) San Carlos Apache Telecommunications Utility, Inc  (AZ) Southern California Tribal Chairmen’s Association - Tribal Digital Village Network (CA) Spokane Tribe of Indians and Spokane Tribe Telecom Exchange (WA) Standing Rock Telecommunications, Inc  (ND, SD) Warm Springs Telecommunications Co  (OR) Yurok Tribe and Yurok Connect (CA) Representatives from tribal associations/consortiums that include tribes Affiliated Tribes of Northwest Indians Middle Rio Grande Pueblo Consortium National Congress of American Indians Native American Finance Officers Association (NAFOA) REDINet Representatives from companies/academic groups that work with tribes AMERIND Risk Arizona State University, American Indian Policy Institute and School of Public Affairs Turtle Island Communications Representatives from providers/trade associations (non-tribally owned) AT&T Representatives from companies that collect broadband data Alexicon Connected Nation Government Agencies (non-tribal) Census Bureau U S  Department of Agriculture’s Rural Utilities Service Department of Interior’s Bureau of Indian Affairs National Telecommunications and Information Administration Minnesota Office of Broadband Development One broadband provider we interviewed did not want to be included in this appendix  This report discusses the extent to which: (1) the Federal Communications Commission’s (FCC) approach to collecting broadband availability data accurately captures the ability of Americans living on tribal lands to access broadband Internet services and (2) FCC obtains tribal input on the accuracy of provider-submitted broadband data for tribal lands  To address both objectives, we analyzed FCC’s December 2016 fixed and mobile broadband availability data—the most recent data at the time of our review—to identify the speeds, technologies, and availability providers reported for federally recognized tribal lands  Providers currently report this information to FCC by filing a “Form 477,” twice a year  We also used 2010 U S  Census data to identify census blocks completely or partially on tribal lands  To assess the reliability of FCC’s data and 2010 U S  Census data, we reviewed a previous GAO reliability assessment, and for FCC’s data we conducted electronic testing and analysis of the data, reviewed FCC guidance and documentation, and interviewed FCC officials  Based on the results of our analysis, we determined the data to be reliable for our purposes, which were: (1) to inform our selection of tribal governments and providers for interviews and visits, as described below, and (2) to develop maps depicting fixed and mobile broadband availability for the nine tribal lands we selected for visits, in order to obtain tribal representatives’ feedback on the data  Specifically, we mapped; fixed broadband data according to speed and technology, and mobile data for long-term evolution (LTE) services by provider for each tribal land  We used those maps during our visits to discuss the accuracy of the data with representatives for each tribal government or tribally owned provider  Though we analyzed all up and download speeds that providers reported in the Form 477, for the purposes of this report we defined “broadband” as fixed Internet service reaching at least 25 megabits per second (Mbps) download and 3 Mbps upload speeds, in accordance with FCC’s advanced telecommunications capability benchmark in its 2018 Broadband Deployment Report  We also report on the availability of mobile broadband, which, for the purposes of this report, does not have a speed threshold and refers to long-term evolution (LTE) services  To address both objectives and obtain tribal government representatives’ feedback on the accuracy of FCC’s broadband data for their lands, we interviewed representatives from 25 tribal governments or tribally owned providers, including visits to 9 tribal lands  We considered a range of factors when we selected tribal governments and tribally owned providers for interviews, including our analysis of Form 477 data, recommendations from tribal, industry, or government stakeholders regarding tribal and non- tribal representatives familiar with broadband data issues, and demographic and geographic characteristics, among others  For example, we considered demographic characteristics such as unemployment rate from the 2011– 2015 American Community Survey data, and geographic characteristics such as rurality from the United States Department of Agriculture (USDA) Rural-Urban Commuting Area Codes data  The tribes included in our review vary with respect to location, level of broadband availability according to FCC, land mass, and population size and density  The results of our interviews are not generalizable to all tribal governments or tribally owned broadband providers  In addition to tribal governments and tribally owned providers, we interviewed six tribal organizations and four stakeholders who work with tribes on broadband issues  For reporting purposes, we developed the following series of indefinite quantifiers to describe the tribal responses from the 35 entities representing tribal stakeholders we interviewed: 3 to 7 is defined as “a few;” 8 to 15 is described as “some;” 16 to 20 is described as “about half;” 21 to 27 is described as “most;” and 28 to 34 is described as “almost all ” A full list of the tribal stakeholders we interviewed can be found in appendix I  Further, to obtain industry perspectives, we reviewed public comments submitted by providers and industry associations in FCC’s ongoing 2017 Notice of Proposed Rulemaking on Modernizing the Form 477 Data Program  We also interviewed 10 non-tribally owned fixed and mobile broadband providers and three industry associations to understand providers’ views on the Form 477 and how providers interact with tribal governments  When selecting providers for interviews, we included providers that reported serving the lands of tribal governments we interviewed and selected providers that varied in the percentage of tribal lands they reported serving  The providers we interviewed represent large, nationwide carriers as well as small, local carriers, and offer broadband via a variety of technologies, including fiber optics, digital subscriber line (DSL), fixed wireless, and mobile LTE  The results of our interviews with providers are not generalizable to all broadband providers  In addition, to address both objectives, we interviewed representatives from other government entities, as well as private companies that collect and report broadband data  A full list of the industry stakeholders we interviewed can be found in appendix I  To identify the extent to which FCC’s approach to collecting broadband availability data reflects the ability of Americans living on tribal lands to actually access broadband Internet services, we reviewed documentation of the Form 477 process, including submission guidance, and FCC’s proposals and public comments in its 2017 Notice of Proposed Rulemaking on Modernizing the Form 477 Data Program and Mobility Fund Phase II proceedings  We also interviewed FCC officials, industry stakeholders, and tribally owned broadband providers to understand FCC’s current process for collecting broadband data  To understand the purpose of the Form 477 data collection process and FCC’s strategic goals, we reviewed relevant statutes, and FCC documents, including FCC’s Strategic Plan 2018––2022, the National Broadband Plan, and FCC’s broadband deployment and progress reports  Given the importance placed on broadband access in these documents, we interviewed tribal stakeholders, as described above and reviewed FCC documents to identify factors affecting the ability of Americans living on tribal lands to access broadband Internet services  We also reviewed previous GAO work that identified barriers to broadband access on tribal lands  We compared the Form 477 process to FCC’s strategic goals and to factors affecting broadband access to determine the extent to which the Form 477 was designed to collect information on those factors and to meet FCC’s goals  We further evaluated this information against the Government Performance and Results Act, as enhanced by the GPRA Modernization Act of 2010 and Standards for Internal Control in the Federal Government  We also reviewed documentation for other FCC data collection programs, including the Measuring Broadband America program and the Urban Rate Survey, to determine the extent to which FCC collected data on factors affecting broadband access outside of the Form 477 process  To determine the extent to which FCC obtains tribal input on the accuracy of provider-submitted broadband data for tribal lands, we interviewed FCC officials and analyzed FCC documents regarding the collection procedures for the Form 477 data and FCC’s policies for working with tribal governments, as well as Connect America Fund documents regarding requirements for providers to share information with tribal governments  We also reviewed documents on past FCC Universal Service Fund processes to challenge broadband data and identified prior instances in which tribal governments or tribally owned providers challenged FCC’s broadband data and the outcomes of those challenges  Additionally, we interviewed tribal stakeholders, as described above, to understand the extent to which: (1) FCC involves tribal governments and other stakeholders in the validation of Form 477 broadband data, (2) tribal governments can access broadband data from FCC or providers, and (3) FCC’s Form 477 data accurately reflected broadband access on their lands  For the nine tribal lands we visited, we asked tribal governments or tribally owned providers to identify where the data do or do not accurately reflect broadband access on maps of FCC’s data  Further, to identify how providers complied with FCC’s tribal engagement requirement and obtain their perspectives, we interviewed providers and industry associations  We compared FCC’s data validation procedures and tribal stakeholders’ feedback on the process to FCC’s policies for working with tribal governments, FCC recommendations from the National Broadband Plan and Standards for Internal Control in the Federal Government  We also interviewed and received written comments from officials from other federal agencies that have broadband programs, including USDA Rural Utilities Service, the National Telecommunications and Information Administration (NTIA), and others, in addition to a state agency and three private companies that collect and report broadband data to understand how other entities collect and validate broadband data  We conducted this performance audit from June 2017 to September 2018 in accordance with generally accepted government auditing standards  Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives  We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives  Mark L  Goldstein, (202) 512-2834 or GoldsteinM@gao gov  In addition to the contact named above, Keith Cunningham (Assistant Director); Crystal Huggins (Analyst in Charge); Katherine Blair; Lilia Chaidez; Camilo Flores; Adam Gomez; Serena Lo; Jeffery Malcolm; John Mingus; Joshua Ormond; Jay Spaan; James Sweetman, Jr ; Elaine Vaurio; and Michelle Weathers made key contributions to this report 


Report 2: USDA’s Food and Nutrition Service (FNS) is responsible for promulgating SNAP program regulations, ensuring that state officials administer the program in compliance with program rules, and authorizing and monitoring retailers from which recipients may purchase food  States are responsible for determining applicant eligibility, calculating the amount of their benefits, issuing benefits on Electronic Benefit Transfer (EBT) cards—which can be used like debit cards to purchase food from authorized retailers—and investigating possible program violations by recipients  SNAP recipients are subject to various work requirements  Generally, all SNAP recipients ages 16 through 59, unless exempted by law or regulation, must comply with work requirements, including registering for work, reporting to an employer if referred by a state agency, accepting a bona fide offer of a suitable job, not voluntarily quitting a job or reducing work hours below 30 hours a week, and participating in a SNAP E&T program or a workfare program—in which recipients perform work on behalf of the state—if assigned by the state agency  SNAP recipients are generally exempt from complying with these work requirements if they are physically or mentally unfit, responsible for caring for a dependent child under age 6 or an incapacitated person, employed for 30 or more hours per week or receive weekly earnings which equal the minimum hourly rate set under federal law multiplied by 30, or are a bona fide student enrolled half-time or more in any recognized school training program, or institution of higher education, amongst other exemptions  SNAP recipients subject to the work requirements—known as work registrants— may lose their eligibility for benefits if they fail to comply with these requirements without good cause  One segment of the work registrant population, SNAP recipients ages 18 through 49 who are “able-bodied,” not responsible for a dependent child, and do not meet other exemptions—able-bodied adults without dependents (ABAWDs)—are generally subject to additional work requirements  In addition to meeting the general work requirements, ABAWDs must work or participate in a work program 20 hours or more per week, or participate in workfare, in which ABAWDs perform work to earn the value of their SNAP benefits  Participation in SNAP E&T, which is a type of work program, is one way for ABAWDs to meet the 20 hour per week ABAWD work requirement, but other work programs are acceptable as well  Unless ABAWDs meet these work requirements or are determined to be exempt, they are limited to 3 months of SNAP benefits in a 36-month period  At the request of states, FNS may waive the ABAWD time limit for ABAWDs located in certain areas of a state or an entire state under certain circumstances  A waiver may be granted if the area has an unemployment rate of over 10 percent or there are an insufficient number of jobs to provide employment for these individuals  If the time limit is waived, ABAWDs are not required to meet the ABAWD work requirement in order to receive SNAP for more than 3 months in a 36-month period yet they must still comply with the general work requirements  Federal requirements for state SNAP E&T programs were first enacted in 1985 and provide state SNAP agencies with flexibility in how they design their SNAP E&T programs, including who to serve and what services to offer  The state has the option to offer SNAP E&T services on a voluntary basis to some or all SNAP recipients, an approach commonly referred to as a voluntary program  Alternatively, the state can require some or all SNAP work registrants to participate in the SNAP E&T program as a condition of eligibility, an approach commonly referred to as a mandatory program  Further, states determine which service components to provide participants through their SNAP E&T programs, although they must provide at least one from a federally determined list  This list includes job search programs, job search training programs, workfare, programs designed to improve employability through work experience or training, education programs to improve basic skills and employability, job retention services, and programs to improve self-sufficiency through self- employment  Total federal expenditures on SNAP E&T programs were more than $337 million in fiscal year 2016  States are eligible to receive three types of federal funding available for state SNAP E&T programs: 100 percent funds—formula grants for program administration, 50 percent federal reimbursement funds, and ABAWD pledge funds—grants to states that pledge to serve all of their at-risk ABAWDs  The Office of Management and Budget has designated SNAP as a high- priority program due to the estimated dollar amount in improper payments—any payments that should not have been made or were made in an incorrect amount (including overpayments and underpayments) under statutory, contractual, administrative, or other legally applicable requirements  According to USDA’s fiscal year 2015 agency financial report, $2 6 billion, or 3 66 percent, of all SNAP benefits paid in fiscal year 2014 were improper, the most recent year for which data are available  SNAP improper payments are caused by variances in any of the key factors involved in determining SNAP eligibility and benefit amounts, and, according to USDA, household income was the most common primary cause of dollar errors  States review the accuracy of SNAP payments to recipients on an ongoing basis, and FNS assesses the accuracy of state reviews and determines a national improper payment rate annually  FNS and states share responsibility for addressing SNAP fraud, which can occur through the eligibility process and when benefits are being used  Specifically, recipients may commit eligibility fraud when they misrepresent their household size, income, or expenses in order to fraudulently obtain SNAP benefits  Another type of fraud—trafficking— occurs when recipients exchange benefits with authorized retailers or other individuals for cash or non-food items (e g  rent or transportation)  In a typical retailer trafficking situation, for example, a retailer may charge $100 to a recipient’s EBT card and give the recipient $50 in cash instead of $100 in food  The federal government reimburses the retailer $100, which results in a fraudulent $50 profit to the retailer  State agencies are directly responsible for preventing, detecting, investigating, and prosecuting recipient fraud, including eligibility fraud and trafficking by SNAP recipients, under the oversight and guidance of FNS  States play a key role in preventing fraud when determining eligibility for SNAP  State agencies collect applicant information, such as household income and employment, and verify it through data matches with other information sources  After benefits are issued, the agencies may monitor EBT transaction data to identify spending patterns that may indicate trafficking  If an individual or household intentionally violates SNAP rules, such as by trafficking or making false or misleading statements in order to obtain benefits, states conduct administrative disqualification hearings or, in some cases, refer the case for criminal prosecution  FNS is responsible for authorizing and overseeing retailers who participate in the program—totaling more than 263,000 in fiscal year 2017—including investigating potential retailer trafficking  In order to participate in SNAP, a retailer applies to FNS and demonstrates that they meet program requirements, such as those on the amount and types of food that authorized stores must carry  FNS verifies a retailer’s compliance with these requirements and generally authorizes retailers for 5 years  FNS then monitors retailers’ continued compliance with program requirements and administratively disqualifies, or assesses money penalties on, those who are found to have trafficked benefits  To this end, FNS officials collect and monitor EBT transaction data to detect irregular patterns of transactions that may indicate trafficking and also conduct undercover investigations  If found to be trafficking, retailers are generally permanently disqualified from SNAP or incur a monetary penalty in lieu of permanent disqualification  According to FNS data, about 14 percent of SNAP recipients, or about 6 1 million, were work registrants who were subject to work requirements, and about 0 5 percent of SNAP recipients, or about 200,000, participated in state SNAP E&T programs, in an average month of fiscal year 2016  (See fig  1 ) According to FNS, most SNAP recipients are exempt from work requirements  For example, according to FNS, almost two-thirds of SNAP recipients were children, elderly, or adults with a disability in an average month of fiscal year 2016—groups that are generally exempt  Further, adults who are already working at least 30 hours a week are also exempt from SNAP work requirements, and according to FNS data, more than 31 percent of non-elderly adult SNAP recipients were employed in an average month of fiscal year 2016  SNAP work registrants who are not participating in SNAP E&T programs may be participating in other activities to meet work requirements or eligible for other exemptions  FNS officials told us that the state data reported to FNS on SNAP E&T participants are the best and most recent data available on this group, yet they also have limitations, which we will continue to explore in our ongoing work  In recent years, the number and percentage of SNAP recipients and work registrants participating in SNAP E&T programs appears to have decreased, according to FNS data  From fiscal year 2008 through fiscal year 2016, the average monthly number of SNAP E&T participants decreased from about 256,000 to about 207,000, or by 19 percent, according to state data on SNAP E&T participants reported to FNS  (See fig  2 ) However, over the same time period, the average monthly number of SNAP recipients appears to have increased from about 27 8 million to about 43 5 million, and work registrants appears to have increased from about 3 million to about 6 1 million, according to FNS data  As a result, the percentage of total SNAP recipients participating in SNAP E&T programs decreased from about 0 9 to about 0 5 percent, and the percentage of SNAP work registrants participating in these programs decreased from approximately 8 1 percent to 3 4 percent, from fiscal year 2008 through fiscal year 2016  Available information suggests the characteristics of SNAP E&T participants are generally similar to those of SNAP work registrants who do not participate in these programs  A recent FNS study, which surveyed SNAP E&T participants and SNAP work registrants who had not participated in SNAP E&T, found that members of the two groups had similar demographic characteristics, including age and gender, and received similar monthly SNAP benefit amounts  Further, at the time they were surveyed, about one third of each group were employed, and their average wage rates were similar, at about $10 per hour  State SNAP agencies have broad flexibility in how they design their SNAP E&T programs, and the characteristics of these programs have changed in several ways over the last decade  For example, states have increasingly moved from mandatory to voluntary programs, focused on serving ABAWDs, and partnered with state and local organizations to deliver services  According to FNS data, states have increasingly moved from mandatory to voluntary SNAP E&T programs in recent years  In fiscal year 2010, 17 states operated voluntary programs; however, by fiscal year 2017, 35 states operated voluntary programs, according to FNS data  (See fig  3 ) FNS officials told us that they have been actively encouraging states to provide more robust employment and training services, such as vocational training or work experience, through voluntary programs  They said that they believe these types of robust services are more effective in moving participants toward self-sufficiency, but that funding may not be sufficient to provide these to the large numbers of participants served in mandatory programs  In addition, FNS officials told us that voluntary programs are less administratively burdensome than mandatory programs, as they allow states to focus on serving motivated participants rather than sanctioning non-compliant individuals  According to FNS officials, when states move to a voluntary program, they generally experience a decline in SNAP E&T participation—a trend consistent with our analysis of FNS data—which may have contributed to the decline in overall SNAP E&T participation  Of the 22 states or territories that changed from a mandatory to a voluntary program from fiscal year 2010 through fiscal year 2016, according to FNS data, 13 experienced a decrease in SNAP E&T participation—ranging from a 21 percent decrease to a 93 percent decrease  Overall, voluntary programs are generally smaller than mandatory programs, according to our analysis of FNS data  In fiscal year 2016, for example, the 32 states or territories operating voluntary programs together served less than half of the total number of SNAP E&T participants served by the 21 states or territories operating mandatory programs, although these two groups of states had similar numbers of new work registrants  Furthermore, states operating voluntary programs served an average of nearly 7,000 SNAP E&T participants per state, while states operating mandatory programs served an average of 23,000 SNAP E&T participants per state  Evidence suggests that states have increased their focus on serving ABAWDs—a sub-population of SNAP recipients subject to benefit time limits and additional work requirements—through SNAP E&T, as related waivers have expired in recent years, according to FNS data  During and after the 2007-2009 recession, the majority of states operated under statewide waivers of the ABAWD time limit due to economic conditions  However, as the economy recovered, most statewide waivers expired, and the ABAWD time limit was reinstated  For example, according to FNS data, in fiscal year 2011, 45 states or territories had a statewide waiver and 7 states had a partial waiver—one applying to certain localities  By fiscal year 2017, the number of states or territories with a statewide waiver had decreased to 9, while 27 states had partial waivers  FNS officials and state SNAP agency officials we spoke with in some states told us that, as the waivers have ended, state SNAP E&T programs have become increasingly focused on serving ABAWDs  Although state data on SNAP E&T programs reported to FNS suggest a greater percentage of ABAWDs have been participating in these programs in recent years, according to FNS officials, these data have limited usefulness in assessing state trends in serving ABAWDs for several reasons  For example, in recent years, FNS officials learned that there was widespread confusion among states regarding the need to track ABAWDs when waivers were in place, and that as a result, some states had not been tracking ABAWDs or properly documenting SNAP recipients’ ABAWD status  This is consistent with what some of the selected states we spoke with reported  As part of our ongoing work, we are continuing to explore the availability and reliability of data on ABAWDs  State SNAP agencies have increasingly partnered with other state and local organizations, such as workforce agencies, community-based social service providers, and community colleges, to provide services to SNAP E&T participants in recent years, according to FNS and states we selected for our review  In fiscal year 2018, nearly all states partnered with at least one other organization to deliver SNAP E&T services, with the majority partnering with more than one, according to an analysis by FNS  In recent years, FNS has urged states to make use of the broad network of American Job Centers  The American Job Centers, also known as one- stop centers, are funded through the Department of Labor’s Employment and Training Administration and designed to provide a range of employment-related services, such as training referrals, career counseling, job listings, and similar employment-related services, to job seekers under one roof  Our prior work has highlighted the value of coordination between federally funded employment and training programs to ensure the efficient and effective use of resources  Despite encouraging such partnerships, FNS officials said that American Job Centers typically provide lighter touch services to SNAP E&T participants, such as job search and job search training, and they therefore may not be well suited for SNAP E&T participants who have multiple barriers to employment  In our 2003 work on SNAP E&T, we found that while workforce system programs offered some of the activities needed by SNAP E&T participants, officials from 12 of the 15 states we contacted said that most participants were not ready for these activities, in part, because they lacked basic skills, such as reading and computer literacy, that would allow them to successfully participate  An alternative service delivery strategy that FNS has promoted is the development of third party partnerships with community-based social service providers, community colleges, and other entities to help states enhance their SNAP E&T programs  According to FNS, in this model, third party organizations use non-federal funding to provide allowable SNAP E&T services and supports, which are then eligible for 50 percent federal reimbursement funds through the state’s SNAP E&T program  According to FNS officials, third party partnerships enable states to leverage additional resources, grow their SNAP E&T programs, and reach more SNAP participants  In addition, FNS officials said that these partnerships allow states to improve their program outcomes by tapping into providers currently serving communities that include SNAP recipients  Federal 50 percent reimbursement funds expended increased from nearly $182 million to more than $223 million, or by 23 percent, from fiscal year 2007 to fiscal year 2016  FNS has taken steps to increase federal support of states’ SNAP E&T programs by increasing the number of federal staff responsible for SNAP E&T and providing additional technical assistance to states  Specifically, FNS officials said that in 2014, they created the Office of Employment and Training to provide support and oversight for the SNAP E&T program and expanded SNAP E&T staff in FNS headquarters from one to five fulltime employees  FNS has also taken steps to increase technical assistance to states  For example, they have developed tools, including the SNAP E&T Operations Handbook, intended to help states implement and grow their program, and by adding a dedicated SNAP E&T official in each of FNS’s seven regional offices  According to FNS, regional officials have targeted technical assistance to states on, for example, developing third-party partnerships, and they have emphasized evidence-based approaches to administering the program, such as providing skills-based training for in-demand occupations  FNS officials rely on various information sources to oversee states’ SNAP E&T programs, including participant outcome data reported by states for the first time in January 2018  For example, FNS officials conduct management evaluation reviews of states, annually review states’ SNAP E&T plans for compliance, and collect data from states on program participation and expenditures  In addition, as of January 2018, FNS has begun receiving new data on SNAP E&T program participants and outcomes from states  These data include employment outcomes, such as the number of SNAP E&T participants in unsubsidized employment after participation in the program, and participant characteristics, such as the number of participants entering the program with a high school degree or equivalent  FNS officials said that although states generally submitted the new data on time, states experienced challenges that likely affected the accuracy of the data  For example, some states needed to manually collect data on participant characteristics due to the limited capacity of their data systems  Further, according to FNS officials, some states did not correctly interpret certain reporting definitions or time periods  To address these challenges, FNS officials have been providing technical assistance to states to help them refine their participant and outcome data reports  Officials told us that they expect the states to submit revised reports by May 2018; we will examine these data and related issues in our ongoing work  FNS and the states partner to address issues that affect program integrity, including improper payments and fraud, and FNS has taken some steps to address challenges in these areas, but concerns remain  For example, regarding SNAP recipient and retailer fraud, FNS has taken some steps to address challenges identified in our 2006 and 2014 reports related to fraud committed by SNAP recipients and authorized retailers, but more remains to be done  We currently have ongoing work to assess the steps FNS and states have taken to address our recommendations related to recipient and retailer fraud and other program vulnerabilities  In 2016, we reviewed SNAP improper payment rates and found that states’ adoption of program flexibilities and changes in federal SNAP policy in the previous decade, as well as improper payment rate calculation methods, likely affected these rates  For example, when states adopted available SNAP policy flexibilities that simplified or lessened participant reporting requirements, these changes reduced the opportunity for error and led to a decline in the improper payment rate, according to a USDA study  In addition, we found that the methodology SNAP used to calculate its improper payment rate was generally similar to the methodologies used for other large federal programs for low- income individuals, including Medicaid, Earned Income Tax Credit, and Supplemental Security Income  However, we also found that some of the procedural and methodological differences in the rate calculation among these programs likely affected the resulting improper payment rates, such as how cases with insufficient information or certain kinds of errors were factored into the improper payment rate  In 2014, USDA identified SNAP improper payment data quality issues in some states and has since been working with the states to improve improper payment estimates  Although USDA reported national SNAP improper payment estimates for benefits paid through fiscal year 2014, USDA did not report a national SNAP improper payment estimate for benefits paid in fiscal years 2015 or 2016  In response to a report from USDA’s Office of Inspector General that identified concerns in the application of SNAP’s quality control process, which is used to identify improper payments, USDA began a review of state quality control systems in all states in 2014  According to USDA, due to the data quality issues uncovered in 42 of 53 states during the reviews, the improper payment rates for those states could not be validated, and the department was unable to calculate a national improper payment rate for benefits paid in fiscal year 2015  To address the data quality concerns, USDA updated guidance, provided training to relevant state and federal staff, and worked with states to update their procedures to ensure consistency with federal guidelines  According to USDA, the department also required individual states to develop corrective action plans to address issues identified and monitored progress to ensure states took identified actions  On June 30, 2017, USDA notified the states that the department would not release a national SNAP improper payment rate for benefits paid in fiscal year 2016 and remained focused on conducting the fiscal year 2017 review  FNS has increased its oversight of state anti-fraud activities in recent years by developing new guidance and providing training and technical assistance to states on detecting fraud by SNAP recipients and reporting on anti-fraud activities to FNS  In 2014, we reported on 11 selected states’ efforts to combat SNAP recipient fraud and made several recommendations to FNS to address the challenges states faced  We found that FNS and states faced challenges in the following areas: Guidance on use of data tools to detect fraud: States faced challenges using FNS-recommended data tools to detect fraud, and FNS is in the process of developing improved guidance to address this concern  Specifically, FNS’s guidance on the use of EBT transaction data to uncover potential patterns of benefit trafficking lacked the specificity states needed to uncover such activity, and we recommended FNS develop additional guidance  Since then, FNS contracted with a private consulting firm to provide 10 states with technical assistance in recipient fraud prevention and detection, which included exploring the use of data analytics to analyze and interpret eligibility and transaction data to identify patterns or trends and create models that incorporate predictive analytics  FNS officials also recently told us that the agency is developing a SNAP Fraud Framework to provide guidance to states on improving fraud prevention and detection  FNS officials anticipated releasing the framework in mid- 2018  Tools for monitoring e-commerce websites: We also found FNS- recommended tools for automatically monitoring potential SNAP trafficking on e-commerce websites to be of limited use and less effective than manual searches, and FNS has developed but not finalized guidance on using such tools  We recommended that FNS reassess the effectiveness of its current guidance and tools for states to monitor e-commerce and social media websites  In August 2017, FNS officials told us that they had developed revised guidance for states on using social media in detection of SNAP trafficking  According to FNS, the guidance will be incorporated into the SNAP Fraud Framework  Staff levels: During the time of our 2014 work, most of our 11 selected states reported difficulties conducting fraud investigations due to reduced or stagnant staff levels while numbers of SNAP recipients had greatly increased, but FNS decided not to make changes to address this issue  Specifically, 8 of the 11 states we reviewed reported inadequate staffing due to attrition, turnover, or lack of funding  Some states suggested changing the financial incentive structure to promote fraud investigations because agencies were not rewarded for cost-effective, anti-fraud efforts that could prevent ineligible people from receiving benefits  Specifically, when fraud by a SNAP recipient is discovered, a state may generally retain 35 percent of any recovered overpayments  However, there are no recovered funds when a state detects potential fraud by an applicant and denies the application  To help address states’ concerns about resources needed to conduct investigations, we recommended in our 2014 report that FNS explore ways that federal financial incentives could be used to better support cost-effective anti-fraud strategies  FNS reported that it took some steps to explore alternative financial incentives, through a review of responses to a Request for Information in the Federal Register  However, FNS decided not to pursue bonus awards for anti-fraud and program integrity activities  Given that FNS has not made changes in this area, state SNAP fraud agencies may continue to report resource concerns in addressing fraud  Reporting guidance: We also found that FNS did not have consistent and reliable data on states’ activities because of unclear reporting guidance, and FNS has since revised its data collection form and provided training on the changes  To improve FNS’s ability to monitor states and obtain information about more efficient and effective ways to combat recipient fraud, we recommended in 2014 that FNS take steps, such as providing guidance and training, to enhance the consistency of what states report on their anti-fraud activities  In response, FNS revised the form used to collect recipient integrity information and changed the reporting frequency from annual to quarterly, effective fiscal year 2017  FNS officials also reported providing training to approximately 400 state agency and FNS regional office personnel on the updates to the form and related instructions  In our ongoing work, we are further reviewing states’ use of data analytics to identify SNAP recipient fraud, including that which may be occurring during out-of-state transactions  Because transactions that may appear suspicious—such as those made out-of-state—may in fact be legitimate, states may use data analytic techniques to include additional factors that may help them better target their efforts to identify potential fraud  However, states may have different levels of capacity for using data analytics to detect fraud  We are examining how 7 selected states are using data analytics and identifying the advantages and challenges states have experienced in doing so  We are also assessing FNS’s efforts to assist states in implementing GAO’s leading practices for data analytics outlined in GAO’s Framework for Managing Fraud Risks in Federal Programs outlined in GAO’s Framework for Managing Fraud Risks in Federal Programs  In addition, we are conducting our own analysis of EBT out-of-state SNAP transaction data  We expect to report on our findings later this year  FNS has taken some steps to prevent, detect, and respond to retailers who traffic SNAP benefits since our last report on the issue in 2006, but trafficking continues to be a problem  For example, in February 2018, a federal jury convicted a grocery store operator in Baltimore on charges of wire fraud in connection with a scheme to traffic more than $1 6 million in SNAP benefits for food sales that never occurred  The grocery store operator paid cash for SNAP benefits, typically paying the recipient half the value of the benefits and keeping the other half for himself  In our 2006 report, we found that SNAP was vulnerable to retailer trafficking in several areas, including: Requirements for food that retailers must stock to participate in SNAP: In 2006, we found that FNS had minimal requirements for the amounts of food that retailers must stock, which could allow retailers more likely to traffic into the program, although the agency has since taken steps to increase these requirements  In our 2006 report, FNS officials said that they authorized stores with limited food stock to provide access to food in low-income areas where large grocery stores were scarce  At that time, retailers were generally required to stock a minimum of 12 food items (at least 3 varieties of 4 staple food categories, such as fruits and vegetables), but FNS rules did not specify how many items of each variety would constitute sufficient stock  FNS officials told us that a retailer that only carries small quantities of food, such as a few cans of one kind of vegetable, may intend to traffic  In 2016, FNS promulgated a final rule increasing food stock requirements  FNS officials told us that these new rules are designed to encourage stores to provide more healthy food options for recipients and discourage trafficking  According to FNS, retailers are now generally required to stock at least 36 food items (a certain variety and quantity of staple foods in each of the 4 staple food categories)  Focus on high-risk retailers: We also found in 2006 that FNS had not conducted analyses to identify characteristics of retailers at high risk of trafficking and to target its resources—a shortcoming FNS has since taken some steps to address  For example, we reported that some stores may be at risk of trafficking because one or more previous owners had been found trafficking at the same location  However, FNS did not have a system in place to ensure that these retailers were quickly targeted for heightened attention  In addition, once a store was authorized to participate in the program, FNS staff typically would not inspect the store again until it applied for reauthorization 5 years later  We recommended that FNS identify the stores most likely to traffic and provide earlier, more targeted oversight to those stores  In 2009, FNS began establishing risk levels for each authorized retailer, identifying high-risk stores as those with a prior permanent disqualification at that location or a nearby location  In 2013, FNS required all high-risk retailers to go through reauthorization and to provide additional documentation regarding store ownership  That same year, FNS also consolidated its retailer management functions, including those for authorizing stores and analyzing EBT transaction data, into a single national structure known as the Retailer Operations Division  FNS officials told us that this structure enables the agency to identify and deploy their investigative resources to the areas of highest risk nationally, rather than within a given region  Penalties to deter retailer trafficking: We also found in our 2006 report that FNS’s penalties for retailer trafficking may be insufficient to deter traffickers, and since then, FNS has proposed—but not finalized—rules to increase them  FNS imposes administrative penalties for retailer trafficking—generally a permanent disqualification from the program or a monetary penalty  FNS relies on the USDA Office of Inspector General (OIG) and other law enforcement entities to conduct investigations that can lead to criminal prosecutions  In our 2006 report, we recommended that FNS develop a strategy to increase penalties for trafficking  The Food, Conservation, and Energy Act of 2008 (known as the 2008 Farm Bill) gave USDA authority to impose higher monetary penalties, and the authority to impose both a monetary penalty and program disqualification on retailers found to have violated relevant law or regulations (which includes those found to have trafficked)  In 2012, FNS proposed regulatory changes to implement these authorities  However, FNS has not finalized these rules, and as of fall 2017, the rules were considered “inactive ” In our ongoing work, we are continuing to assess FNS’s efforts to prevent, detect, and respond to retailer trafficking, as well as examining what is known about the extent of retailer trafficking nationwide  As part of this work, we are continuing to review FNS’s response to our prior recommendations, as well as related recommendations made by USDA’s OIG  We are also studying FNS’s periodic estimates of the rate of retailer trafficking, expressed as the dollar value and percentage of all SNAP benefits that were trafficked and the percentage of retailers involved  These data suggest an increase in the estimated rate of retailer trafficking since our 2006 report  However, we and others, including a group of experts convened by FNS, have identified some limitations with the retailer trafficking estimates  For example, the trafficking rate is calculated based on a sample of retailers that FNS considers most likely to traffic  Although FNS adjusts the data to better represent the broader population of authorized retailers, it is uncertain whether the resulting estimates accurately reflect the extent of trafficking nationwide  We are reviewing these limitations and FNS’s efforts to address them in our ongoing work  Chairman Jordan, Chairman Palmer, Ranking Member Krishnamoorthi, Ranking Member Raskin, and Members of the Subcommittees, this completes my prepared statement  I would be pleased to respond to any questions that you may have at this time  If you or your staff have any questions about this testimony, please contact Kathryn Larin, Director, Education, Workforce, and Income Security Issues at (202) 512-7215 or LarinK@gao gov  Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this statement  GAO staff who made key contributions to this testimony include Rachael Chamberlin, Celina Davidson, Swati Deo, Rachel Frisk, Alexander Galuten, Danielle Giese, Kristen Jones, Morgan Jones, Lara Laufer, Monica Savoy, and Kelly Snow  This is a work of the U S  government and is not subject to copyright protection in the United States  The published product may be reproduced and distributed in its entirety without further permission from GAO  However, because this work may contain copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately 

ground_truth: SNAP is the largest federally funded nutrition assistance program. In fiscal year 2017, it provided about $63 billion in benefits. USDA and the states jointly administer SNAP and partner to address issues that affect program integrity, including improper payments and fraud. GAO has previously reported on various aspects of SNAP, including state SNAP E&T programs, improper payment rates, recipient fraud, and retailer trafficking. This testimony discusses GAO's prior and ongoing work on (1) SNAP E&T programs, including program participants, design, and USDA oversight, and (2) USDA's efforts to address SNAP program integrity, including improper payments, as well as recipient and retailer fraud. As part of its ongoing work on SNAP E&T programs, GAO analyzed E&T expenditures and participation data from fiscal years 2007 through 2016, the most recent data available; reviewed relevant research from USDA; and interviewed USDA and selected state and local officials. The prior work discussed in this testimony is based on four GAO products on E&T programs (GAO-03-388), improper payments (GAO-16-708T), recipient fraud (GAO-14-641), and retailer trafficking (GAO-07-53). Information on the scope and methodology of our prior work is available in each product. Overseen by the U.S. Department of Agriculture (USDA) and administered by states, Supplemental Nutrition Assistance Program (SNAP) Employment and Training (E&T) programs served about 0.5 percent of the approximately 43.5 million SNAP recipients in an average month of fiscal year 2016, according to the most recent USDA data available. These programs are generally designed to help SNAP recipients increase their ability to obtain regular employment through services such as job search and training. Some recipients may be required to participate. According to USDA, about 14 percent of SNAP recipients were subject to work requirements in an average month of fiscal year 2016, while others, such as children and the elderly, were generally exempt from these requirements. States have flexibility in how they design their E&T programs. Over the last several years, states have 1) increasingly moved away from programs that mandate participation, 2) focused on serving able-bodied adults without dependents whose benefits are generally time-limited unless they comply with work requirements, and 3) partnered with state and local organizations to deliver services. USDA has taken steps to increase support and oversight of SNAP E&T since 2014, including collecting new data on participant outcomes from states. GAO has ongoing work reviewing SNAP E&T programs, including USDA oversight. USDA and the states partner to address issues that affect program integrity, including improper payments and fraud, and USDA has taken some steps to address challenges in these areas, but issues remain. Improper Payments. In 2016, GAO reviewed SNAP improper payment rates and found that states' adoption of program flexibilities and changes in federal SNAP policy in the previous decade, as well as improper payment rate calculation methods, likely affected these rates. Although USDA reported improper payment estimates for SNAP in previous years, USDA did not report an estimate for benefits paid in fiscal years 2015 or 2016 due to data quality issues in some states. USDA has since been working with the states to improve improper payment estimates for the fiscal year 2017 review. Recipient Fraud. In 2014, GAO made recommendations to USDA to address challenges states faced in combatting recipient fraud. For example, GAO found that USDA's guidance on the use of transaction data to uncover potential trafficking lacked specificity and recommended USDA develop additional guidance. Since then, USDA has provided technical assistance to some states, including on the use of data analytics. GAO has ongoing work reviewing states' use of data analytics to identify SNAP recipient fraud. Retailer Trafficking. In 2006, GAO identified several ways in which SNAP was vulnerable to retailer trafficking—a practice involving the exchange of benefits for cash or non-food items. For example, USDA had not conducted analyses to identify high-risk retailers and target its resources. Since then, USDA has established risk levels for retailers based on various factors. GAO has ongoing work assessing how USDA prevents, detects, and responds to retailer trafficking and reviewing the usefulness of USDA's estimates of the extent of SNAP retailer trafficking. GAO is not making new recommendations. USDA generally concurred with GAO's prior recommendations.