United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1515 UNITED STATES OF AMERICA ex rel. TODD HEATH, Relator-Appellant, v. WISCONSIN BELL, INC., Defendant-Appellee. ____________________

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:08-cv-00724-LA — Lynn Adelman, Judge. ____________________

ARGUED FEBRUARY 9, 2023 — DECIDED AUGUST 2, 2023

AMENDED ON PETITION FOR REHEARING JANUARY 16, 2024 ____________________

Before EASTERBROOK, HAMILTON, and LEE, Circuit Judges. HAMILTON, Circuit Judge. Congress established the Schools and Libraries Universal Service Support program to keep tel- ecommunications services affordable for schools and libraries in rural and economically disadvantaged areas. The program subsidizes services and requires providers to charge these customers rates less than or equal to the lowest rates they 2 No. 22-1515 charge to similarly situated customers. Relator Todd Heath brought this qui tam action under the False Claims Act, 31 U.S.C. § 3729 et seq., alleging that defendant Wisconsin Bell charged schools and libraries more than was allowed un- der the program, causing the federal government to pay more than it should have. The district court granted summary judg- ment in favor of Wisconsin Bell. Heath’s briefing and evidence focused more on which party bore the burden of proving violations than on identify- ing specific violations in his voluminous exhibits and lengthy expert report. We understand how the district court could look at this record and rule in Wisconsin Bell’s favor. Never- theless, Heath identified enough specific evidence of discrim- inatory pricing to allow a reasonable jury to find that Wiscon- sin Bell, acting with the required scienter, charged specific schools and libraries more than it charged similarly situated customers. Accordingly, we reverse the judgment of the dis- trict court and remand the case for trial. We are issuing this amended opinion upon consideration of Wisconsin Bell’s pe- tition for rehearing and denial of its petition for rehearing en banc. I. Factual and Procedural Background In 1996, Congress created the E-rate program (known more formally as the Schools and Libraries Universal Service Support program) to help schools and libraries across the country afford telecommunications and information services. See Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56. As part of the program, schools and libraries receive federal subsidies for 20 to 90 percent of charges on a sliding scale that depends on the income level in the surrounding community and whether the community is urban or rural. No. 22-1515 3 47 C.F.R. § 54.505(b) & (c). Under Federal Communications Commission regulations implementing the E-rate program, service providers must follow what is known as the “lowest- corresponding-price” rule and offer schools and libraries “the lowest price … charge[d] to non-residential customers who are similarly situated.” 47 C.F.R. § 54.500. The regulations do not impose a specific formula to deter- mine when a school or library is similarly situated to a partic- ular non-residential customer for purposes of comparing prices. Yet the FCC has long made clear that service providers cannot escape their obligation to provide the lowest price charged to similarly situated customers simply “by arguing that none of their non-residential customers are identically situated to a school or library.” In re Federal-State Joint Board on Universal Service, Report and Order, 12 FCC Rcd. 8776, ¶ 488 (1997) (“First Order”), adopted by FCC at