February 15, 2023
The Honorable Alan Davidson
Assistant Secretary of Commerce for Communications and Information
National Telecommunications and Information Administration
1401 Constitution Avenue NW
Washington, DC 20230
Dear Assistant Secretary Davidson:
ACA Connects and its Members appreciate the continuing efforts of you and your staff to implement the Broadband Equity, Access, and Deployment (BEAD) Program. Our Members are eagerly awaiting the opportunity to submit applications to bring high-performance broadband service to unserved and underserved locations throughout the U.S.
In the meantime, we recognize that the National Telecommunications and Information Administration (NTIA) has many decisions still to make, including to provide guidance on the challenge process that each State and Territory is to conduct prior to awarding deployment grants. Last October, I wrote to you identifying “key attributes” these challenge processes should be required to include (October 3, 2022 Letter). Our recommendations were based on our Members’ experience participating in federal and State broadband mapping and deployment grant proceedings. Since submitting our letter (which we incorporate by reference here), our Members have participated in additional challenge processes conducted by States and the Federal Communications Commission (FCC), and we elaborate herein on our recommendations based on the new lessons we have learned.
First, it is essential that NTIA require all States and Territories to use the FCC broadband maps1 as the source for the locations they identify as unserved or underserved in their Initial Proposals, their challenge processes, and the scope of deployment projects proposed in subgrant applications. The FCC’s Broadband Data Collection (BDC) and resulting maps—the Broadband DATA Maps and the forthcoming Broadband Deployment Locations Map (together, “the FCC Maps”)—are the sole mechanism for collecting data nationally based on well-vetted rules and verification processes, which is what Congress intended in enacting the Broadband DATA Act. For fixed broadband services, the Broadband DATA Maps begin with the Fabric, “a common dataset of all locations in the United States where fixed broadband internet access service can be installed . . . serv[ing] as the foundation upon which all data relating to the availability of fixed broadband internet access service . . . shall be reported and overlaid.”2 Moreover, Congress foresaw that this data collected via the BDC would inform a “comprehensive database” of the availability of fixed broadband internet access service.3 In establishing the BEAD Program, Congress reinforced the primacy of the FCC Maps by defining eligible projects relative to whether the unserved and/or underserved locations largely comprising eligible projects are determined to be unserved or underserved in accordance with the FCC Maps.4
We recognize that the FCC’s maps have flaws, but these are diminishing. As NTIA stated in its recent blog post, “the map is becoming more accurate and will continue to get incrementally better.”5 We agree with this conclusion.6 Based on challenges received so far, our Members’ submissions have proven largely accurate, and in the limited instances where there are shortcomings, they are being addressed through the FCC challenge process. Thus, the FCC Maps provide the solid foundation on which every State and Territory challenge process must be built, and on which every location identified as unserved or underserved in a State/Territory’s Initial Proposal and in a subgrant application must be based.7
Moreover, if NTIA permitted States and Territories to rely on alternative data sources of their choosing, a free-for-all would ensue, with no common base of well-vetted data to drive decisions and assess the program’s results. Providers would also face substantial burdens if forced to contend simultaneously with dissimilar processes and data sources in multiple, or even dozens of, States and/or Territories. These outcomes would be in direct conflict with the statute and would undermine efforts to close broadband deployment gaps.8 In fact, some ACA Connects Members report being subject to bulk availability challenges at the FCC based on third-party maps containing erroneous data.9 NTIA must ensure that State and Territory challenge processes do not get bogged down by requiring providers to respond to claims based upon unsanctioned or dubious data sources. This is essential both to avert unnecessary burdens on providers and counterproductive outcomes of States/Territories potentially relying upon erroneous data alleging a location is not served.
Further, an important corollary is that NTIA’s challenge process guidance for States and Territories must be fashioned so as not to relitigate the FCC’s own challenge process determinations or otherwise circumvent the FCC process.10 Congress clearly intended for the FCC mapping process to serve as the primary mechanism for determining levels of service availability at broadband serviceable locations. Thus, it would be contrary to the will of Congress for States or Territories to disregard outcomes of the FCC challenge process in implementing their own processes.11 Moreover, permitting States and Territories to relitigate the FCC’s challenge process determinations would inefficiently replicate challenge efforts, and introduce ambiguity and uncertainty for providers, needlessly escalating their burdens to respond to challenges and subjecting them to exposure for inequitable “second-chance” challenge results.12
To be clear, making the FCC’s Maps the underlying authorities to determine whether a location is unserved or underserved still enables States and Territories to conduct a meaningful challenge process and “accept a broader range of information that may bear on broadband service in an area than is considered in an FCC BDC challenge.”13 In that regard, State/Territory challenge processes should account for locations subject to enforceable deployment commitments as reflected in the Broadband Deployment Locations Map, as well as any locations subject to qualifying enforceable deployment commitments through State/Territory or local funding mechanisms separate and apart from federal programs.14 In addition, in the case of locations that are newly-served or serviceable with a standard broadband installation, given the natural lag in such locations appearing on the FCC Maps,15 State/Territory challenge processes also should be able to account for them. Doing so will further the goals of the BEAD Program, and is consistent with Congress’ intention in the Broadband DATA Act that challenge processes “provide timely opportunities for . . . evidence-based corrections to, or updates of” coverage data, thereby averting “wasted resources” and “a misallocation of funds because of a reliance on outdated or otherwise inaccurate” coverage data.16 States and Territories also should be able, if they choose, to treat each unit in a Multi-Tenant Environment (MTE) as a separate location for purposes of evaluating subgrant applications and, correspondingly, to accept challenges to the Fabric’s accounting of units within MTEs.17
Second, regardless of whether States and Territories conduct their challenge processes prior or subsequent to accepting applications for deployment subgrants, ACA Connects urges NTIA to require the following additional elements (relative to those ACA Connects proposed in the October 3, 2022 Letter) to be incorporated in each State/Territory’s challenge process:
- To ensure the accuracy of locations claimed as “unserved” or “underserved” in subgrant applications, States/Territories should be required to make each subgrant application publicly available – other than information an applicant demonstrates is proprietary and confidential, which may not include proposed eligible service areas and locations.18
- Subject to how, as described above, States and Territories may build upon the FCC Maps,19 their challenge processes should be limited to assisting the State’s/Territory’s determination of whether locations in the Initial Proposal and/or subgrant applications are unserved/underserved.20
- The “credible evidence” that a State/Territory considers probative should include location-specific speed tests indicating maximum up and down speeds and average latency (preferably over a period of days/weeks), based on tests performed using the Ookla platform that demonstrate that a specified level of service (e.g., 100/20 Mbps or 25/3 Mbps) is available at the location.21
- In order to promote expeditious challenge processes,22 States/Territories must be prevented from imposing unduly onerous evidence requirements.23
- The challenger or recipient of a challenge should have the right to appeal any adverse State/Territory determination of a location’s service status to another agency of the State/Territory or, in the absence of that, to the State’s/Territory’s judiciary.
- In addition to notifying NTIA of any amended availability data resulting from its challenge process,24 a State/Territory should be required to promptly file any amended availability data with the FCC, so the FCC can adjust its maps and so applicants for subgrants have up-to-date data when they file applications for subgrants.
Sound, carefully-tailored State and Territory challenge processes that are consistent with the Broadband DATA Act and the Infrastructure Investment and Jobs Act will be essential to achieving the aims of the BEAD Program in closing the broadband gap efficiently and effectively.25 As we have discussed herein, that means NTIA should require States/Territories to build their challenge processes upon the FCC Maps, and direct them to use those maps as the resource to identify a location as unserved or underserved in a State/Territory’s Initial Proposal and in a subgrant application. Further, every State/Territory challenge process needs to be transparent, objective, evidence-based, and expeditious, and every State’s/Territory’s decisions need to be reviewable.
ACA Connects appreciates your consideration of our proposals to develop such challenge processes, and we stand ready to discuss these further with you.
Sincerely,
Grant B. Spellmeyer
1 States and Territories also should use the same standards and benchmarks as the FCC to assess whether service is available at a location.
2 47 U.S.C. § 642(b)(1)(A)(i), (B)(ii).
3 S. Rep. No. 116-174, at 7 (2019).
4 47 U.S.C. § 1702(a)(1), (e)(3)(A)(i)(V)(aa), (f)(1). See also, e.g., NTIA, Notice of Funding Opportunity: Broadband Equity, Access, and Deployment Program, at 31 (2022), https://broadbandusa.ntia.doc.gov/sites/default/files/2022-05/BEAD%20NOFO.pdf (NOFO) (State/Territory’s Initial Proposal must “[i]dentify each unserved location and underserved location under the jurisdiction of the [State/Territory] . . . using the most recently published Broadband DATA Maps as of the date of submission of the Initial Proposal”).
5 See “Advancing Internet For all,” NTIA Blog, National Telecommunications and Information Administration (Jan. 13, 2023), https://www.ntia.gov/blog/2023/advancing-internet-all (“States, counties and other organizations have been productive partners in the process to improve the FCC’s map. And we know their engagement is producing a better map. The FCC already has received over 1 million challenges to provider reported availability data and has updated the map’s underlying Fabric to add more than 1 million additional locations. Through this work, the map is becoming more accurate and will continue to get incrementally better…. Both NTIA and the FCC are committed to iteratively improving the National Broadband Map. As we drive toward June 30, we will continue to partner with states and the FCC to improve the accuracy of both the location and availability data so that the map includes as much data as possible when we allocate funds.”).
6 See Broadband Data Task Force Announces Recommended Best Practices for Challenges to Updated Broadband Serviceable Location Fabric, Public Notice, DA 23-69 (BDTF Jan. 25, 2023) (encouraging the continued filing of Fabric challenges). In this Public Notice, the FCC asserts that “bulk Fabric challenges submitted as much in advance of March 15, 2023, as possible are most likely to be reviewed and adjudicated in time to be accounted for in the next iteration of the Fabric (version three)” to be released in conjunction with the BDC filing window for data as of June 30, 2023, that is due no later than September 1, 2023. If NTIA does make State and Territory BEAD funding allocation decisions on approximately June 30, Initial Proposals will be due approximately at the end of 2023, and BEAD funding subgrants by States and Territories may commence at some point in 2024. Insofar as, under such a timeline, the late fall 2023 version of the FCC Maps will be overlaid on top of version three of the Fabric, which itself will be issued early summer 2023, Fabric challenges at least filed by March 15, 2023 still will play a pivotal role in the versions of the FCC Maps upon which State and Territory subgrant decisions will be based.
7 As of May 2023, there will be: (1) the Broadband DATA Maps, which provide location-specific broadband availability data; and (2) the Broadband Deployment Locations Map, which incorporates availability data from the Broadband DATA Maps while also providing “a locations overview of the overall geographic footprint of each broadband infrastructure deployment project funded by the Federal Government.” 47 U.S.C. § 1704. Because the latter map identifies not only locations where service is available but also locations that are subject to an “enforceable commitment” to provide service, see NOFO at 36, n.52, it is a critical resource for State and Territory challenge processes.
8 These outcomes would contravene Congress’ intent in the Broadband DATA Act that challenge processes be designed “to mitigate the time and expense incurred by, and the administrative burdens placed on, both the entities submitting challenges and those responding to challenges.” S. Rep. No. 116-174, at 13.
9 Compounding the problem is the burden associated with harmonizing disparate data sources, for example, location IDs for the same location that potentially differ based on the data source. In the words of one ACA Connects Member, this threatens to “generate confusion, rework, and delay.” In addition, to the extent providers subject to thousands of challenges that they must process in compressed time periods must build automated systems to respond to them, doing so necessitates a “single source of truth” for location data, otherwise automation attempts are thwarted.
10 NTIA should place applicants for subgrants on notice that they should file availability challenges at the FCC to contest locations identified as being served on the FCC Maps and that such challenges will not be accepted by States and Territories.
11 The purpose of the Broadband DATA Act is to establish “the” singular place to which everyone can look to determine where broadband service is and is not available. Thus, if NTIA permits States/Territories to sidestep the FCC Maps, at a minimum it must establish a process that ensures that whatever the States/Territories decide will filter promptly back up to the FCC Maps after all is said and done. If not, or if that happens but not systematically, there will be parallel sets of maps providing different information depicting broadband availability in many States/Territories, and Congress’s intent underlying the Broadband DATA Act will be defeated.
12 See supra note 8.
13 NTIA, Internet for All: Frequently Asked Questions and Answers Draft Version 2.0, Broadband Equity, Access, and Deployment (BEAD) Program, at 64 (2022), https://broadbandusa.ntia.doc.gov/sites/default/files/2022-09/BEAD-Frequently-Asked-Questions-%28FAQs%29_Version-2.0.pdf.
14 See, e.g., NOFO at 36 (States and Territories “may not treat as ‘unserved’ or ‘underserved’ any location that is already subject to an enforceable federal, state, or local commitment to deploy qualifying broadband as of the date that the challenge process . . . is concluded.”). The Broadband Deployment Locations Map is limited to reflecting enforceable deployment commitments emanating from federal programs. However, States/Territories may allocate BEAD grant funds towards mapping enforceable broadband deployment commitments arising from their own (or their localities’) funding mechanisms. See id. at 33.
15 For instance, locations not appearing in the Fabric first must be added to the Fabric – which is only updated biannually – and then, if able to receive qualifying service, the provider able to serve them may include them in the next FCC BDC filing, which is also biannual. This leads to a natural lag of approximately nine months (or potentially more) before such locations appear on the FCC Maps.
16 S. Rep. No. 116-174, at 2, 13-14. Notably, rather than undermining the primacy of the FCC Maps, enabling State/Territory challenge processes to add locations that are newly-served or serviceable with a standard broadband installation helps to foster Congress’s objective in enacting the Broadband DATA Act to maximize accuracy of the broadband deployment information guiding “distribut[ion of] funding for broadband based upon the availability of broadband internet access service.” Cf. id. at 13 (purpose of challenge process provisions in Broadband DATA Act).
17 Because each MTE is considered one location in the Fabric, the number of units within an MTE is not subject to FCC availability challenges. Further, even though the number of units within an MTE is eligible to be the subject of a Fabric challenge, Fabric challenges to MTE unit counts have been given relatively low priority thus far. Cf. Establishing the Digital Opportunity Data Collection; Modernizing the FCC Form 477 Data Program, Third Report and Order, 36 FCC Rcd 1126, 1177, para. 130 (2021) (Fabric to associate number of units within each MTE with the MTE’s location information in the Fabric only “to the extent feasible,” citing “the difficulty in precisely identifying all of the individual units” in MTEs).
18 This is fully in accord with the NOFO’s dictate that each State/Territory establish open processes for subgrantee selections. See NOFO at 35. Likewise, while the NOFO states that “NTIA may make all or portions of [States’/Territories’] applications for grants under the BEAD Program publicly available consistent with applicable federal law,” id. at 83 (emphasis added), NTIA should make States’/Territories’ Initial Proposals and other key submissions to NTIA publicly available.
19 See supra pp.4-5. [1]
20 See 47 U.S.C. § 1702(h)(2) (challenge process designed to determine whether a particular location is unserved or underserved); see also, e.g., NOFO at 34 (same). To the extent challenge processes occur after applications are submitted, it is sensible for States/Territories to accept challenges that go to whether at least 80 percent of broadband serviceable locations in a subgrant applicant’s proposed project indeed are unserved or underserved locations. But issues unrelated to the status of locations as unserved or underserved should be excluded. For instance, while NTIA might provide additional guidance to States/Territories on whether – and if so, to what degree – interested parties may call into question a subgrant applicant’s qualifications, such as its financial capacity, or technical or operational capability, to provide the services proposed in the subgrant application, see NOFO at 71-76, issues related to the bona fides of the applicant itself should not be the province of the challenge process.
21 However, speed tests should only be accepted as evidence to help inform whether the provider actually is able to offer the speeds it asserts to the subject location; they should not be accepted in a manner that leads to hijacking the challenge process with service quality complaints. In addition, States/Territories should not accept challenges by a customer subscribing to a lower speed tier that claims it cannot receive a higher speed. Such claims likewise do not address the fundamental issue of what service a provider makes available, and they impose an unnecessary burden on both providers and States/Territories.
22 See 47 U.S.C. § 1702(h)(2)(A).
23 For example, one provider reports a State requiring it to furnish customer billing records and pole attachment records to establish its provision of service. While providers certainly should be permitted to supply such materials (or any other information they deem to be probative), as there is a broad range of substantive merits of challenges, States/Territories should not require them to submit such information in defense. Nor should States/Territories require providers to submit data similar to that required in conjunction with the FCC’s performance tests for providers receiving universal service support.
24 See, e.g., NOFO at 35.
25 To the extent NTIA does not require States and Territories to use the FCC Maps as the underlying sources to identify unserved and underserved locations as outlined in our letter, it should at least impose responsible limits on the breadth of data States/Territories may introduce or rely on to identify such locations.
As a threshold matter, even if NTIA does not require States and Territories to use the FCC Maps as the sources for the locations they identify as unserved or underserved in their Initial Proposals, their challenge processes, and the scope of deployment projects proposed in subgrant applications, it must – at a minimum – obligate States and Territories to use the most up-to-date FCC Maps as the starting point upon which to review other data sources or claims. See id. at 34. Second, as part of its Initial Proposal review process, NTIA should afford a reasonable and sufficient public comment period on each Initial Proposal, see supra note 18, or, at a minimum, on the “detailed plan to conduct a challenge process” that each Initial Proposal must contain. Id.at 31. Providing such transparency will lend credibility to any challenge process. Third, the challenge criteria set forth by each State or Territory should closely track the FCC’s, see supra note 20 and accompanying text, and if a State or Territory proposes divergent criteria, it should bear the burden to justify why such criteria are probative and necessary.
Further, for “cable” or “fiber to the premises” technologies, NTIA should require States and Territories to provide a “clear and convincing” justification as to why it will not use the FCC Maps as the source for the locations they identify as unserved or underserved in their Initial Proposals, their challenge processes, or the scope of deployment projects proposed in subgrant applications. As discussed in the most recent Measuring Broadband America Fixed Broadband Report, these technologies are distinguishable from other deployed broadband technologies insofar as these technologies are conducive to “a high consistency of speed.” FCC, Eleventh Measuring Broadband America Fixed Broadband Report; A Report on Consumer Fixed Broadband Performance in the United States at 48 (2021), https://data.fcc.gov/download/measuring-broadband-america/2021/2021-Fixed-Measuring-Broadband-America-Report.pdf. Moreover, unlike wireless or satellite technologies, they are not subject to variances associated with propagation characteristics or other factors. Thus, there should be no need to revisit the FCC’s deployment data relative to “cable” or “fiber to the premises” technologies, and allowing States or Territories to do so without extraordinary justification would impose substantial burdens on providers with no corresponding benefit to the accuracy of deployment data.
At minimum, NTIA should impose the following limits on State/Territory challenge processes with respect to “cable” or “fiber to the premises” technologies:
- Any location claimed to be served by a provider using “cable” or “fiber to the premises” technology that has been challenged at the FCC should be off-limits to State/Territory challenge processes. NTIA should work with the FCC to develop a mechanism to identify these locations for States and Territories, so that States and Territories can take these locations off the table before they or the provider serving (or able to serve) such locations are/is burdened with having to respond to challenges to locations whose service status already has been vetted.
NTIA should prohibit States/Territories from allowing speed tests to be used as the basis for challenging a location a provider claims to serve with “cable” or “fiber to the premises” technology, but it should allow methodologically sound speed tests to be used to defend against such challenges. Given, as discussed above, the consistency of speeds associated with such technologies, this limitation on the use of speed tests in challenge processes would reduce unnecessary burdens on providers to respond to challenges that are not probative as to service availability, while at the same time allowing States/Territories to rely on evidence that many of them have found useful in resolving challenges associated with other federally-funded deployment programs.